GENERAL PROCUREMENT CONTRACT
FOR COMPUTER EQUIPMENT, SOFTWARE AND SERVICES
BETWEEN
SOUTHWESTERN XXXX TELEPHONE COMPANY
AND
SECURICOR TELESCIENCES, INC.
This General Procurement Contract (the "Contract") is made and entered into as
of the 1st day of June, 1995 by and between Securicor Telesciences, Inc.
("VENDOR"), a Delaware corporation, with offices located at 000 Xxx Xxxxxx Xxxx,
Xxxxxxxxxx. Xxx Xxxxxx 00000-0000, and Southwestern Xxxx Telephone Company
("SWBT"), a Missouri corporation, with offices located at 0000 Xxxx Xxxxxx, Xx.
Xxxxx, Xxxxxxxx, 00000. This Contract consists of the following Sections and
Appendices:
Section A Definitions
Section B Terms and Conditions Applicable to the Entire Contract
Section C Equipment Acquisition
Section D Equipment Maintenance
Section E Software License
Section F Software Maintenance
Section G Entire Contract
Appendix I Material Description and Prices
Appendix II Non-Discrimination Compliance Contract (SW9368)
Appendix III Training
Appendix IV Documentation
Appendix V Quality Assurance
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of the parties hereto only and is not for general distribution within
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TABLE OF CONTENTS-NUMERIC ORDER
SECTION A - DEFINITIONS
A1. SCOPE..................................................................1
A2. DEFINITIONS............................................................1
SECTION B - TERMS AND CONDITIONS APPLICABLE TO THE ENTIRE CONTRACT
Bl. SCOPE OF CONTRACT.....................................................7
B2. TERM OF CONTRACT......................................................7
B3. PURCHASE ORDER........................................................7
B4. ORDER ACCEPTANCE......................................................8
B5. ASSIGNMENT............................................................8
B6. BREACH OF CONTRACT....................................................9
B7. CHOICE OF LAW.........................................................9
B8. CLEAN UP..............................................................9
B9. COMPLIANCE WITH LAWS..................................................9
B10. CONFLICT OF INTEREST..................................................9
B11. HARMONY...............................................................10
B12. HEADINGS NOT CONTROLLING..............................................10
B13. PATENT AND COPYRIGHT INDEMNITY........................................10
B14. INSPECTION............................................................11
B15. INVOICING STANDARD....................................................11
B16. INSURANCE.............................................................12
B17. LIABILITY.............................................................12
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SECTION B - TERMS AND CONDITIONS APPLICABLE TO THE ENTIRE CONTRACT (Cont'd)
B18. LICENSES..............................................................13
B19. REPORTS...............................................................14
B20. NON-EXCLUSIVE MARKET RIGHTS...........................................14
B21. NON-WAIVER............................................................14
B22. NOTICES...............................................................14
B23. PLANT AND WORK RULES..................................................15
B24. PRICE PROTECTION......................................................15
B25. PUBLICITY.............................................................15
B26. RECORDS AND AUDIT.....................................................16
B27. RELEASES VOID.........................................................16
B28. RIGHT OF ACCESS.......................................................16
B29. SEVERABILITY..........................................................16
B30. SHIPPING AND BILLING..................................................17
B31. SURVIVAL OF OBLIGATIONS...............................................17
B32. TAXES.................................................................18
B33. USE OF INFORMATION....................................................18
B34. WORK DONE BY OTHERS...................................................18
B35. ORDER OF PRECEDENCE...................................................18
B36. CONVERSION OF FINANCIAL ARRANGEMENT...................................19
B37. TRANSFER OF TITLE TO A THIRD PARTY....................................19
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SECTION B - TERMS AND CONDITIONS APPLICABLE TO THE ENTIRE CONTRACT (Cont'd.)
B38. TERMINATION OF ORDER..................................................19
B39. TRAINING..............................................................19
B40. SWBT'S TECHNICAL INFORMATION..........................................21
B41. AFFILIATED COMPANY....................................................22
B42. FORCE MAJEURE.........................................................23
B43. HAZARDOUS MATERIALS/REGULAR SUBSTANCE.................................23
B44. CHANGES TO MATERIAL...................................................24
B45. QUALITY ASSURANCE.....................................................25
B46. QUALITY ASSURANCE RELIABILITY.........................................26
B47. COMPLAINTS............................................................27
B48. EMERGENCY SUPPORT SERVICE.............................................28
B49. MOST FAVORED CUSTOMER.................................................29
SECTION C - EQUIPMENT ACQUISITION
C1. GENERAL...............................................................30
C2. FORM OF ORDER.........................................................30
C3. TITLE AND RISK OF LOSS................................................30
C4. WARRANTY..............................................................30
C5. SITE PREPARATION......................................................31
C6. DELIVERY..............................................................31
C7. TRANSPORTATION........................................................32
C8. INSTALLATION..........................................................32
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SECTION C - EQUIPMENT ACQUISITION (Cont'd.)
C9. INSTALLATION QUALIFICATION STANDARDS..................................32
C10. ACCEPTANCE............................................................33
C11. SUPPLIES..............................................................34
C12. RELOCATION............................................................34
C13. TRADE-INS.............................................................34
C14. CABLES AND RELATED ITEMS..............................................34
SECTION D - EQUIPMENT MAINTENANCE
D1. GENERAL...............................................................35
D2. FORM OF ORDER.........................................................35
D3. TERM OF ORDER.........................................................35
D4. BASIC SERVICE.........................................................35
D5. REMEDIAL MAINTENANCE..................................................37
D6. PARTS.................................................................37
D7. PARTS INVENTORY.......................................................37
D8.. ENGINEERING CHANGES...................................................38
D9. MAINTENANCE LOG.......................................................38
D10. ACCESS................................................................38
D11. STORAGE AND WORK SPACE................................................39
D12. MAINTENANCE BY OTHER..................................................39
D13. ESCALATION PROCEDURE..................................................39
D14. WARRANTY..............................................................39
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SECTION D - EQUIPMENT MAINTENANCE (Cont'd.)
D15. TIME AND MATERIAL.....................................................39
SECTION E - SOFTWARE LICENSE
E1. LICENSE...............................................................41
E2. DELIVERY..............................................................41
E3. OWNERSHIP.............................................................41
E4. COPYRIGHT AND TRADEMARK NOTICES.......................................42
E5. TERM..................................................................42
E6. REPRESENTATIONS AND WARRANTIES OF VENDOR..............................42
E7. CONFIDENTIALITY.......................................................42
SECTION F - SOFTWARE MAINTENANCE
F1. SUPPORT AND MAINTENANCE SUPPORT SERVICES..............................45
F2. RESPONSIBILITIES......................................................46
F3. PRICING...............................................................47
F4. FORM OF PAYMENT.......................................................47
F5. CUSTOMS DUTY AND TAXES................................................47
F6. TERM..................................................................47
F7. WARRANTIES............................................................47
SECTION G - ENTIRE CONTRACT
G1. ENTIRE CONTRACT.......................................................49
G2. SIGNATURES............................................................49
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DEFINITIONS
A1. SCOPE
For the purposes of this Contract, all terms defined herein will have the
meanings so defined, unless the context clearly indicates otherwise. A term
defined in the singular will include the plural and vice versa when the context
so indicates.
A2. DEFINITIONS
A. ACCEPTANCE DATE
"Acceptance Date" means the last day of an Acceptance Period in which a Product
has successfully completed the Acceptance Test(s) therefor. If Product is put in
use by SWBT, it shall be deemed Accepted. If SWBT waives the Acceptance Test(s)
of any Product in writing, the Acceptance Date for such Product will be the same
as the Installation Date therefor. For any maintenance, support or other Service
for which an Acceptance Test is not required, the Acceptance Date will be the
Effective Date.
B. ACCEPTANCE PERIOD
"Acceptance Period" means a period of thirty (30) consecutive calendar days (or
the period specified in the Order) during which the Acceptance Test(s) for a
Product is/are performed.
C. ACCEPTANCE TEST
"Acceptance Test" means the performance and reliability demonstrations and
tests, mutually agreed between the parties, that must be successfully completed
by a Product during the Acceptance Period which may include but not be limited
to: (1) SWBT's routine business transactions, (2) tests, demonstrations or
transactions performed during any VENDOR benchmarking, and (3) any other tests,
demonstrations or transactions included or referenced in the applicable Order or
which are appropriate to determine whether the Product conforms to the
requirements of the Order.
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D. AVERAGE OPERATIONAL LEVEL ("AOL")
"Average Operational Level" ("AOL") means the percentage of time during a
specified period during which a Product is operating in accordance with the
requirements of the applicable Order.
AOL will be determined in accordance with the following formula:
AOL = TT = SUT = D x 100
-- --- - ---
TT - SUT
Where: TT= Total Time (in hours) during the specified period.
SUT = Scheduled Unavailability Time (in hours) during
which SWBT has not scheduled the Product for
operation during the specified period.
D = Downtime (in hours) during the specified period.
E. CENTRALLY DEVELOPED SYSTEM
"Centrally Developed System" means a computer-based information system whose
development project was managed and/or is being supported by SWBT.
F. CUSTOM SOFTWARE
"Custom Software" means the unique or specialized computer programs which are
listed as "Custom Software" in the applicable Order. Custom Software also
includes all associated Program Material.
G. DELIVERY DATE
"Delivery Date" means the date by which all items and parts of the Product as
ordered are delivered to the destination specified in the applicable Order.
H. DOCUMENTATION
"Documentation" will include, but not be limited to, user and system manuals,
and training materials in machine readable or printed form.
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I. DOWNTIME
"Downtime" means that period of time during which a Product is not operating in
accordance with the requirements of an Order through no fault or negligence of
SWBT. Downtime for each malfunction will start one (1) hour after SWBT attempts
to contact VENDOR's designated representative at a prearranged contact point and
will end when the Product is operating in accordance with the requirements of
the Order.
J. EFFECTIVE DATE
"Effective Date" means the date shown on an Order which is the beginning date
for such Order.
K. EQUIPMENT
"Equipment" means a unit of hardware, including spare parts, acquired or
maintained hereunder.
L. EXTENDED MAINTENANCE PERIOD
"Extended Maintenance Period" means any period of maintenance service outside of
the Principal Period of Maintenance which may be selected by SWBT.
M. FIELD ENGINEER
"Field Engineer" means a person in VENDOR's employ qualified to repair Products
in a timely and professional manner.
N. INSTALLATION DATE
"Installation Date" means the date by which all components of a Product or
System are installed and prepared for Acceptance Tests at the location specified
in the applicable Order. The Installation Date for Software and Equipment
includes delivery of Program Material, manuals and supporting Documentation.
O. INSTALLATION SITE
"Installation Site" means the location, established by SWBT, at which the
Product will reside. The Installation Site for each Product will be identified
in the applicable Order.
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P. LICENSED SOFTWARE
"Licensed Software" means a standard computer program with respect to which
VENDOR has the right to grant to SWBT a license or sublicense to use same.
Licenses are granted as either perpetual or periodic, exclusive or
non-exclusive, for which VENDOR may or may not receive a license fee. Licensed
Software also includes all associated Program Material and Documentation.
Q. ORDER
"Order" means a SWBT document executed hereunder ordering Products and/or
Services and will be deemed to incorporate (1) the provisions of this Contract
(including the Appendices attached hereto), as it may from time to time be
amended, (2) the Specifications applicable to such Order and (3) any subordinate
documents attached to or referenced in this Contract, such Specifications or
such Order. Each Order will be deemed to be a separate and independent Contract
between the parties with respect to the subject matter thereof.
R. PREVENTIVE MAINTENANCE
"Preventive Maintenance" means maintenance performed or required to be performed
by VENDOR on a scheduled basis to keep a Product in good operating condition in
accordance with the requirements of the applicable Order. Preventive Maintenance
will include (1) calibration, testing, adjustments, cleaning, lubrication,
replacement of worn, defective or questionable parts, and minor circuit updating
and modifications; (2) maintenance and engineering services necessary to
retrofit or otherwise install engineering changes, modifications and
improvements (including the latest engineering revision and all reliability
improvements) made to any Product by VENDOR at any time during the maintenance
term for that Product; and (3) automatic update services for all manuals and
Documentation furnished with any Product.
S. PRINCIPAL PERIOD OF MAINTENANCE
"Principal Period of Maintenance" means a consecutive ten (10)-hour period
daily, Monday through Friday, excluding New Year's Day, Washington's Birthday,
Memorial Day, Independence Day, Labor Day, Thanksgiving Day and Christmas Day.
Unless otherwise specified in the Order, such ten (10)-hour period will be from
7:00 a.m. to 5:00 p.m. Eastern Standard Time.
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T. PRODUCT
"Product" means any Equipment, Software or System acquired by SWBT hereunder.
U. PROGRAM MATERIAL
"Program Material" means all material associated with Software ordered hereunder
including, but not limited to, test data, flow charts, Documentation, data file
listings, input and output formats.
V. REMEDIAL MAINTENANCE
"Remedial Maintenance" means maintenance performed by VENDOR which is necessary
to return an inoperative or malfunctioning Product to good operating condition.
W. REMOTE JOB PROCESSING
"Remote Job Processing" means computer processing services, such as input/output
capability through remote terminal devices, central processing time, program
storage capacity, the use of proprietary computer programs furnished by VENDOR
and such other Services as may be described in VENDOR's current published price
list describing such Services.
X. SERVICES
"Services" means any service specified in an Order including, but not limited
to, any programming service, Preventive Maintenance, Remedial Maintenance,
Software Maintenance, technical consultation services, and support services.
Y. SOFTWARE
"Software" means Custom Software and Licensed Software, including any associated
program, programming aid, routine, subroutine translation, compiler, diagnostic
routine, control software, and firmware.
Z. SPECIFICATIONS
"Specifications" means (1) VENDOR's proposals, (2) VENDOR's published
literature, descriptions, drawings and other specifications, including physical,
operating, timing and maintenance characteristics, site, space, power and memory
requirements, run times, compatibility, and modularity, (3) the Product
manufacturer's or developers specifications (if
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Vendor is not the Product manufacturer or developer) and (4) any other
specifications for the Products or Services which are attached to or referenced
in and made a part of the applicable Order.
AA. SYSTEM
"System" means any collection or aggregation of two (2) or more Products
designed to function, or represented by VENDOR as being capable of functioning,
as an entity. A System may be offered by VENDOR or any other source and may
include products offered by other vendors.
BB. SYSTEM CHANGE REQUEST
"System Change Request" means a SWBT document requesting modifications to
Software licensed hereunder.
CC. TURN-KEY SYSTEM
See "System".
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TERMS AND CONDITIONS APPLICABLE TO THE ENTIRE CONTRACT
Bl. SCOPE OF CONTRACT
This General Contract (the "Contract") is applicable to the procurement by SWBT
from VENDOR of any Software System and Services that have been announced on or
before the effective date hereof and, unless VENDOR notifies SWBT to the
contrary, Software, Systems and Services (MATERIAL) available after such
effective date. The terms and conditions of this Section B will apply to all
other sections of this Contract.
B2. TERM OF CONTRACT
This Contract will become effective as of the date first set forth above and
will continue in effect thereafter unless sooner terminated as provided herein.
The amendment or termination of this Contract will not affect the obligations of
either party hereto to the other party hereto under any then existing Order
issued under this Contract, but said Order will continue in effect as though
this Contract had not been amended or terminated, as the case may be, and was
still in effect with respect thereto.
B3. PURCHASE ORDER
Purchase orders submitted by SWBT against this Contract will be placed on
Purchase Order Form SW-6531 (the "Order"). The typed or written provisions on
SWBT's Orders will be incorporated into this Contract, but printed provisions on
the reverse side thereof will be deemed deleted. Such Orders will specify:
(a) A description of the MATERIAL, including any numerical/alphabetical
identification referenced in the price list attached hereto as Appendix I
and by this reference made a part hereof.
(b) The requested delivery date.
(c) The applicable price(s).
(d) The location to which the MATERIAL is to be shipped.
(e) The location to which invoices are to be rendered for payment.
(f) SWBTs Order number.
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Orders will be deemed accepted by VENDOR unless written notice to the contrary
is received by SWBT within thirty (30) days from VENDOR's receipt thereof. Such
notice will be given to SWBT in care of the address indicated on the
acknowledgment copy of the Order.
B4. ORDER ACCEPTANCE
VENDOR agrees to acknowledge in writing to SWBT receipt of each Order within
thirty (30) days of such receipt. VENDOR will have the right to all ordering
information required by this Contract or (b) allow VENDOR reasonable time to
supply the items requested. VENDOR will also have the right to reject an Order
which includes additional unagreed to special terms and conditions. VENDOR will
indicate in its written acknowledgment to SWBT whether the Order was accepted or
rejected and, if rejected, the reasons therefor. Acceptance of any Order by
VENDOR will bind both parties to honor dates, amounts and other ordering
information shown thereon, including supplemental provisions contained therein.
Any Order not accepted or rejected within such thirty (30)-day period of receipt
will be deemed accepted.
B5. ASSIGNMENT
Neither party hereto may assign, subcontract or otherwise transfer its rights or
obligations under this Contract except with the prior written consent of the
other party hereto, which consent will not be unreasonably withheld; provided,
however, both parties will have the right to assign this Contract to any present
or future affiliate, subsidiary or parent corporation of either party, without
securing the consent of the other party, and may grant to any such assignee the
same rights and privileges each party enjoys hereunder. Any attempted assignment
not assented to in the manner prescribed herein, except an assignment confined
solely to money due or to become due, will be void. It is expressly agreed that
any assignment of money will be void if (a) one party fails to give the other
party at least thirty (30) days' prior written notice thereof, or (b) such
assignment attempts to impose upon SWBT obligations to the assignee in addition
to the payment of such money or preclude VENDOR from dealing solely and directly
with SWBT in all matters pertaining to this Contract, including the negotiation
of amendments or settlement of charges due.
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B6. BREACH OF CONTRACT
In the event VENDOR or SWBT is in breach or default of any term, condition or
covenant of this Contract, and said breach or default continues for a period of
thirty (30) days after the giving of written notice thereof, then, in addition
to all other rights and remedies available at law or in equity, the
non-breaching party will have the right to cancel this Contract.
B7. CHOICE OF LAW
This Contract will be governed by the laws of the State of Missouri.
B8. CLEAN UP
Upon completion of the installation of any Product hereunder, VENDOR will remove
promptly all VENDOR's tools, equipment, materials and debris from SWBT's
premises.
B9. COMPLIANCE WITH LAWS
VENDOR agrees to comply with the provisions of the Fair Labor Standards Act, the
Occupational Safety and Health Act, the National Electric Safety Code ("NESC"),
and all other applicable federal, state, county and local laws, ordinances,
regulations and codes (including the identification and procurement of required
permits, certificates, approvals and inspections) in VENDOR's performance under
this Contract. VENDOR further agrees, during the term hereof, to comply with all
applicable Executive and Federal regulations as set forth in Form SW9368, a copy
of which is attached hereto as Appendix II and by this reference made a part
hereof. VENDOR will defend, indemnify and hold SWBT harmless from and against
any loss, liability, damage or expense (including attorneys' fees and court
costs) sustained by SWBT because of VENDOR's noncompliance herewith.
B10. CONFLICT OF INTEREST
VENDOR represents and warrants that no officer, director, employee or agent of
SWBT 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
VENDOR or any of VENDOR's officers, directors, employees or agents in connection
with the obtaining, arranging or negotiation of this Contract or other documents
or Contracts entered into or executed in connection herewith.
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B11. HARMONY
VENDOR will be entirely responsible for all persons furnished by VENDOR working
in harmony with all others when on SWBT's premises.
B12. HEADINGS NOT CONTROLLING
The headings of the clauses in each Section are inserted for convenience only
and are not intended to affect the meaning or interpretation of this Contract.
B13. PATENT AND COPYRIGHT INDEMNITY
VENDOR agrees to indemnify and hold SWBT harmless from and against any loss,
liability, damage or expense (including increased damages for willful
infringement, punitive damages, attorneys' fees and court costs) that may result
by reason of any infringement, or claim of infringement, of any trade secret,
patent, trademark, copyright or other proprietary interest of any third party
based on the normal use or installation of any MATERIAL, Software Documentation,
program or Services furnished to SWBT hereunder, except to the extent that such
claim arises from VENDOR's compliance with SWBT's detailed specifications or
instructions for which SWBT agrees to indemnify VENDOR. Such exception will not,
however, include:
(a) Merchandise available on the open market or the same as such merchandise.
(b) Items of VENDOR's origin, design or selection.
VENDOR warrants that it has made reasonable independent investigation (including
obtaining legal opinions) to determine the legality of its right to produce and
sell the Material/Equipment/Services provided herein.
If an injunction or order is obtained against SWBT's use of any MATERIAL,
Software, Documentation, program or Services, or if in VENDOR's opinion any
MATERIAL, Software, Documentation, program or SERVICE is likely to become the
subject of a claim of infringement, VENDOR will, at its expense:
(i) Procure for SWBT the right to continue using the MATERIAL,
software, documentation, program or SERVICE; or
(ii) After consultation with SWBT, replace or modify the
MATERIAL, Software, Documentation, program or SERVICE to
make it a substantially similar, functionally equivalent,
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noninfringing MATERIAL, software, documentation, program or
SERVICE.
If the MATERIAL, Software, Documentation, program or SERVICE is purchased or
licensed and neither (i) nor (ii) above is possible, SWBT may cancel the
applicable Order and require VENDOR to remove such MATERIAL, Software,
Documentation, program or SERVICE from SWBT's location and refund any charges
paid therefore by SWBT.
In no event will SWBT be liable to VENDOR for any charges after the date that
SWBT no longer uses any MATERIAL, Software, Documentation, program or SERVICE
because of actual or claimed infringement.
Each party hereto agrees to defend or settle, at its own expense, any action or
suit against the other party hereto for which it is responsible under this
clause. Each party further agrees to notify the other party promptly 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 VENDOR, after notification of any claim for which VENDOR is
responsible, does not assume the defense of such action, VENDOR will reimburse
SWBT for all of its costs incurred in the defense of the claim, including, but
not limited to attorneys' fees and interest on such SWBT's payment of said
amounts from the date of SWBT's payment of said amounts.
B14. INSPECTION
When so stated in SWBT's Order, VENDOR agrees to (a) notify SWBT or SWBT's agent
when Equipment is ready for inspection, (b) give SWBT such reasonable
opportunity to inspect such Equipment at any time prior to the scheduled
shipment date, and (c) provide without charge any production testing facilities
and personnel required to inspect the Equipment under the inspection
instructions specified. Purchase of any Equipment under this Contract is subject
to SWBT's inspection and acceptance after delivery. It is mutually agreed that
SWBT or SWBT's agent may develop inspection instructions which will be made a
part of this Contract at a later date by written Contract of the parties.
Inspection or failure to inspect on any occasion will not affect SWBT's rights
under warranty or other provisions of this Contract.
B15. INVOICING STANDARD
VENDOR agrees to render invoices in not less than three (3) copies, and no later
than the month following the month in which the charges on the invoice accrued.
Provided that the amounts covered by the invoice are in fact due and payable by
SWBT hereunder, SWBT agrees to pay
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each invoice no later than thirty (30) days from the invoice date of the
invoiced Software or Services. Discounts may be taken where allowed.
Invoices for each Order will be rendered on the Shipment Date.
B16. INSURANCE
With respect to performance hereunder, VENDOR 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 work 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 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 VENDOR's Liability and Broad Form Property Damage and name
SWBT as an "Additional Insured".
(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+Vll or better.
Upon SWBT's request, VENDOR agrees to furnish certificates or other acceptable
proof of the foregoing insurance. SWBT is to be notified in writing at least
thirty (30) days prior to cancellation of any material change of the foregoing
insurance.
B17. LIABILITY
VENDOR agrees to indemnify and save SWBT harmless (including its officers,
directors, agents and employees) from and against any and all liability, loss,
damage or expense (including
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attorneys' fees and court costs) incurred by SWBT in connection with any claim,
demand or suit for damages, injunction or other relief caused by, resulting from
or attributable to the MATERIAL or the acts or omissions of VENDOR (including
any of its suppliers, agents or subcontractors but excepting the negligent acts
or omissions solely of SWBT) in furnishing the MATERIAL or performing services
hereunder. This indemnity will survive the delivery, inspection and acceptance
of MATERIAL or performance of services hereunder.
VENDOR further agrees to defend SWBT, at SWBT's request, against any such claim,
demand or suit, and SWBT agrees to promptly notify VENDOR of any claim or demand
against SWBT for which VENDOR is or may be responsible under this clause.
VENDOR's foregoing Contract to indemnify and save SWBT 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.
VENDOR 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 VENDOR and that
arises out of MATERIAL or services furnished under this Contract.
B18. LICENSES
No licenses, express or implied, under any patents are granted by SWBT to VENDOR
under 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.
-13-
B19. REPORTS
Upon request by SWBT, VENDOR agrees to render reports on or before the fifth
working day of each month containing information mutually agreed to by SWBT and
VENDOR.
B20. NON-EXCLUSIVE MARKET RIGHTS
It is expressly understood and agreed that this Contract does not grant VENDOR
an exclusive privilege to sell to SWBT any or all products of the type described
in the clause entitled "MATERIAL" which SWBT may require, nor require the
purchase of any products from VENDOR by SWBT. It is, therefore, understood that
SWBT may contract with other manufacturers and suppliers for the procurement of
comparable products or services.
B21. NON-WAIVER
No course of dealing or failure of either party to strictly enforce any term,
right or condition of this Contract will be construed as a waiver of such term,
right or condition. The waiver by SWBT in one instance of any default of VENDOR
hereunder will not be deemed a waiver of any other default of VENDOR. The
express provision herein for certain rights and remedies of SWBT are in addition
to any other legal and equitable rights and remedies to which SWBT would
otherwise be entitled.
B22. NOTICES
Any notice or demand which under the terms of this Contract or otherwise must or
may be given or made by VENDOR or SWBT will be in writing and given or made by
facsimile, telegram or similar communication or by certified or registered mail,
return receipt requested, addressed to the respective parties as shown:
(a) If to SWBT: 0000 Xxxx
Xxxx 0-X-00
Xx. Xxxxx, Xxxxxxxx 00000
Attn: Contract Manager- AMADNS
(b) If to Affiliated Address set forth in the applicable order Company: ATTN:
Signer of the Order
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.
-14-
(c) If to VENDOR: Securicor Telesciences, Inc.
000 Xxx Xxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000-0000
Attn: VP-Program Management
Such notice or demand will be deemed to have been given or made when sent, if
sent by facsimile, telegram 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.
B23. PLANT AND WORK RULES
VENDOR's employees and agents and those of SWBT 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.
B24. PRICE PROTECTION
VENDOR agrees that it will not increase maintenance charges for a period of one
(1) year after the Acceptance Date applicable to Software licensed hereunder.
Thereafter, upon ninety (90) days' prior written notice to SWBT, such charges
may be increased to the price level prevailing in VENDOR's standard price list,
provided, however, such prices may not be increased more than ten (10%) percent
in any one year nor exceed the prices charged to other similarly situated
customers.
If VENDOR's price for any item ordered hereunder on the date of installation, or
if a Service on the date of delivery thereof is less than the price specified on
the applicable Order, the lower price will prevail. VENDOR will notify SWBT of
the fact, amount and effective date of the reduced price which will be applied
to such Order from and after such effective date.
B25. PUBLICITY
VENDOR agrees not to advertise, or otherwise make known to others, any
information regarding this Contract. VENDOR 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
SWBT or any of its employees without SWBT's prior written
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.
-15-
approval. VENDOR will 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.
B26. RECORDS AND AUDIT
VENDOR agrees that it will:
(a) Maintain complete and accurate records of all amounts billable to
and payments made by SWBT 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 SWBT concerning any
disputed invoice amount within thirty (30) calendar days after
receipt of written notification of such dispute.
(d) Permit SWBT, through its accredited representatives, to inspect and
audit during normal business hours the charges invoiced to SWBT.
Should SWBT request an audit, VENDOR will make available any
pertinent records and files excluding any VENDOR cost information.
B27. 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 VENDOR,
SWBT or third persons in any action or proceeding.
B28. RIGHT OF ACCESS
Both VENDOR and SWBT will permit reasonable access to the other's facilities in
connection with work hereunder. No charge will be made for such visits. It is
agreed that prior notification will be given when access is required. VENDOR
agrees to remove any of its employees at SWBTs request.
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.
-16-
B29. SEVERABILITY
If any provision of this Contract is determined to be invalid or unenforceable,
such invalidity or unenforceability will not invalidate or render unenforceable
the entire Contract, but rather the entire Contract will be construed as if it
did not contain the particular invalid or unenforceable provision(s) and the
rights and obligations of VENDOR and SWBT will be construed and enforced
accordingly.
B30. SHIPPING AND BILLING
VENDOR will at its expense:
(a) Ship Orders complete unless instructed otherwise by SWBT.
(b) Ship to the destination designated in an Order in accordance with
specific routing instructions. All products are shipped FOB VENDOR's
premises.
(c) Enclose a packing memorandum with each shipment and, when more than
one (1) package is shipped, identify the one containing the
memorandum.
(d) Xxxx the Order number and Product identification on all packages,
subordinate documents and shipping papers.
(e) Render invoices showing the Order number, through routing and
weight.
(f) Render separate invoices for each shipment or Order.
On written request of SWBT, VENDOR will mail Bills of Lading, shipping notices
and copies of transportation bills with copies of VENDOR's invoices to the
address indicated on said request.
VENDOR will limit billing on repair invoices to one (1) invoice per repair
Order.
If prepayment of transportation charges is authorized, VENDOR will include the
transportation charges from the F.O.B. point to the destination as a separate
charge on VENDOR's invoice. Adequate protective packaging will be furnished by
VENDOR at no additional charge. Shipping and routing instructions may be altered
as mutually agreed upon by VENDOR and SWBT without written notice. C.O.D.
shipments will not be accepted.
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.
-17-
B31. SURVIVAL OF OBLIGATIONS
VENDOR's obligations under this Contract which by their nature would continue
beyond the termination, cancellation 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 "WARRANTY", will survive the
termination, cancellation or expiration of this Contract.
B32. TAXES
In the event that SWBT is liable under federal law for excise taxes or under
state or local law for sales taxes collected by VENDOR on the MATERIAL provided
hereunder, VENDOR agrees to xxxx such taxes as separate items, listing each tax
jurisdiction involved. SWBT will have the right to require VENDOR to contest
with the imposing jurisdiction, at SWBT's expense, any taxes or assessments
which SWBT may deem to be improperly levied. VENDOR further agrees, on request
of SWBT, to furnish statements evidencing that taxes and assessments for which
SWBT is responsible hereunder have been paid.
B33. USE OF INFORMATION
Any specifications, drawings, sketches, models, samples, tools, computer or
other apparatus programs, technical information or business information or data,
written, oral or otherwise (all hereinafter designated "Information"), furnished
to by one party to the other under this Contract or in contemplation hereof will
remain the disclosing party's property. All copies of such Information in
written, graphic or other tangible form will be returned to the other party upon
request. Information will be kept confidential by the other party in performing
under this Contract and may not be used for any other purposes except upon such
terms as may be agreed upon between VENDOR and SWBT in writing.
B34. WORK DONE BY OTHERS
If any part of the Services or other work performed by VENDOR is dependent upon
work done by others, VENDOR will inspect such work and promptly report to SWBT
any defect therein that renders such other work unsuitable for VENDOR's proper
performance hereunder. VENDOR's silence will constitute approval of such other
work as being fit, proper and suitable for VENDOR's performance of the Services
or other work.
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.
-18-
B35. ORDER OF PRECEDENCE
In the event of any conflict or inconsistency between any provisions of this
Contract and the provisions of any Order, the provisions of such Order will
control but only for the purpose of such Order, and, except for such Order, the
terms and conditions of this Contract will not be deemed to be waived, amended
or modified.
B36. CONVERSION OF FINANCIAL ARRANGEMENT
SWBT reserves the right at any time prior to completion of the Acceptance Test
and at no additional cost to SWBT to convert any part or all of an Order for
Equipment to a third-party lease, or to any purchase, lease, rental plan, or
other marketing pricing policy available from VENDOR and may do so with no
additional cost to SWBT.
B37. TRANSFER OF TITLE TO A THIRD PARTY
In connection with the financing of Equipment, SWBT may request VENDOR to pass
title to the Equipment directly to a third party designated by SWBT, who will
then purchase the Equipment on SWBT's behalf. In such event VENDOR agrees to
execute a Xxxx of Sale conveying title to the Equipment to such third party and
such third party will succeed to all of SWBT's rights under the applicable Order
with respect to such Equipment, although SWBT will continue to exercise such
rights directly with VENDOR on behalf of such third party unless and until
VENDOR is otherwise notified by said third party and SWBT. Notwithstanding the
foregoing, SWBT guarantees payment of the purchase price for such Equipment to
VENDOR. The right of SWBT to request VENDOR to pass title to Equipment to a
third party will include the right to sublicense any Software relating thereto
without payment of any additional license fees to VENDOR.
B38. TERMINATION OF ORDER
SWBT may terminate any or all Orders placed by it hereunder within thirty (30)
days of scheduled ship date. Unless otherwise specified herein, SWBT's liability
to VENDOR with respect to any such terminated Order will be limited to (a)
VENDOR's purchase price of all components (not usable in VENDOR's other
operations or salable to VENDOR's other customers), to be used in ordered, but
not yet manufactured MATERIAL, plus (b) the actual costs incurred by VENDOR in
procuring and manufacturing MATERIAL (not usable in VENDOR's other operations or
salable to VENDOR's other customers) in process as of the date of SWBTs notice
of termination, less any salvage value thereof, and (c) the actual engineering
costs incurred by VENDOR in providing equipment engineering services hereunder.
If requested, VENDOR agrees to substantiate such costs with proof satisfactory
to SWBT.
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.
-19-
B39. TRAINING
If requested by SWBT, VENDOR agrees to provide at the prices prevailing under
Appendix I to SWBT:
(a) One (1) complete copy of training material and/or five (5) seats in each
training class offered by VENDOR for SWBT's personnel.
(b) Instructors and the necessary equipment and material to train SWBT's
personnel in the engineering, installation, operation, maintenance, repair
and marketing of MATERIAL purchased under this Contract. Classes will be
scheduled to meet SWBT's initial and on-going training requirements with
the locations to be agreed upon by SWBT and VENDOR.
(c) Training material, documentation and assistance with respect to those
areas of interest outlined in paragraph (b) above sufficient in detail,
content, format and quantity to allow SWBT to train SWBT's own personnel
or any other users of MATERIAL or equipment of the type purchased by SWBT
hereunder. SWBT may, at its discretion, reproduce VENDOR's training
material and documentation for use in connection with such training.
(d) Any combination of those items set forth in paragraphs (a), (b) and (c)
above to meet SWBT's training needs.
VENDOR will be responsible for changing and updating training material as such
changes and updates become known to VENDOR. If SWBT determines that any part of
the training does not meet SWBT'S needs, VENDOR agrees to make any changes
requested by SWBT in a mutually agreed upon time frame. If new training material
is developed by VENDOR in accordance with SWBT's request, such training material
will be subject to SWBTs approval.
A complete list and description of VENDOR's training courses/materials, are
included in Appendix III, attached hereto and by this reference made a part
hereof.
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.
-20-
B40. SWBT'S TECHNICAL INFORMATION
VENDOR agrees to comply with the following technical requirements documents of
SWBT. In instances where it is determined that the VENDOR is in noncompliance
with the technical requirements documents, which causes SWBT harm in any way, it
shall be the responsibility of VENDOR to bring their product/service into
compliance with the technical requirements documents at no cost to SWBT.
Generic TRs to be included in this clause for all transmission and
switching products are:
- GR-137-CORE, Issue 1, June 1, 1994. "Generic Requirements for
Central Office Cable"
- GR-1089-CORE, Issue 1, November 1994. "Electromagnetic Compatibility
and Electrical Safety - Generic Criteria for Network
Telecommunications Equipment"
- GR-1421-CORE, Issue 1, 7-1-94,. "Generic Requirements for
ESD-Protective Circuit Pack Containers"
- GR-1502-CORE, Issue 1, June 1994. "Central Office Environment Detail
Engineering Generic Requirements"
- SR-3158, Issue 1, May, 1994: "NEBS 2000 Physical Protection
Guidelines for Operations Systems Hardware"
- SR-NWT-002910, Issue 1, December 1993, Part 2. "NEBS 2000
Technologies Mechanical Protection for Floor Mounted Equipment"
- SWBT Practice 790-10-322SW, March 1, 1990. "Detail Engineering Guide
Telephone Company Engineered (TCE) Orders Preparation Instructions"
- TP 76300, December 1, 1994. "Installation Guidelines"
- TP 76310, April 1, 1992. "Earthquake Engineering Guidelines"
- TR-EOP-000066, Issue 1, February 1987. "Space Planning Documentation
Requirements"
- TR-NWT-000063, Issue 5, September 1993. "Network Equipment Building
Systems General Equipment Requirements (NEBS)"
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.
-21-
- TR-NWT-000078, Issue 3, December 1991. "Generic Physical Design
Requirements for Telecommunications Products and Equipment"
- TR-NWT-000295, Issue 2, 1992. "Central Office Grounding (Isolated
Xxxxxx Xxxxx)"
- XX-XXX-000000 "Generic Requirements for Power Systems"
- TR-NWT-000833, Issue 5, December 1992, Revision 1, April 1993,
Revision 2, June 1994. "Operations Application Messages - Network
Maintenance: Network Elements and Transport Surveillance Messages".
- TR-NWT-000840, Issue 1, December 1991. "Supplier Support Generic
Requirements (SSGR)"
- TR-NWT-000928 "Generic Requirements for Fuse Panels used in Central
Offices"
- TR-OPT-000209, Issue 5, October 1991. "Guidelines for Product Change
Notices"
- TR-OPT-000230, Issue 2, September 1993. "Engineering Complaints and
Service Failure Analysis Reports
- TR-TSY-000454, Issue 1, July 1988. Supplier Documentation for
Network Elements
- TR-TSY-000513, Issue 2, July 1987. "LSSGR:Power, Section 13"
B41. AFFILIATED COMPANY
"Affiliated Company" as used herein means any present or future affiliate,
subsidiary or parent corporation of SWBT.
An Affiliated Company that places an Order with VENDOR hereunder will
incorporate into such Order the terms and conditions of this Contract. Such
Affiliated Company will be responsible for its own obligations including, but
not limited to, all charges incurred in connection with such Order. Nothing in
this Contract will be construed as requiring SWBT to indemnify VENDOR for any
acts or omissions of an Affiliated Company.
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.
-22-
B42. FORCE MAJEURE
Neither party hereto 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, explosion, war, strike, embargo, government
requirement, civil or military authorities, Act of God or by the public enemy,
acts or omissions of carriers, or any other cause beyond the control of VENDOR
or SWBT. If any force majeure condition occurs, the party delayed or unable to
perform will give immediate notice thereof to the other party and the party
affected by the other's inability to perform may elect to:
(a) Terminate this Contract or any Order or part of either as to MATERIAL not
already shipped or services not already performed.
(b) Suspend this Contract for the duration of the force majeure condition, buy
or sell elsewhere MATERIAL 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 hereunder once the force majeure condition ceases with
an option in the affected party to extend the term of this Contract up to
the length of time the force majeure condition endured.
Unless written notice to the contrary is given within thirty (30) days after
such affected party is notified of the force majeure condition, option (b) above
will be deemed selected.
B43. HAZARDOUS MATERIALS/REGULATED SUBSTANCE
A "REGULATED SUBSTANCE," as referenced in this clause, is a generic term used to
describe all materials that are regulated by the federal or any 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 purchased under this Contract contains a REGULATED SUBSTANCE,
VENDOR agrees to notify SWBT immediately and provide to SWBT all necessary
notification and other information (including but not limited to OSHA Material
Safety Data Sheets) regarding said REGULATED SUBSTANCE required by law. VENDOR
further agrees to defend, indemnify and hold SWBT harmless from and against
any loss, liability, damage or expense (including attorneys' fees and court
costs) sustained by SWBT because of VENDOR'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.
-23-
B44. CHANGES TO MATERIAL
VENDOR agrees to notify SWBT, in advance, of any change to be made in the
MATERIAL furnished in accordance with the Specifications, Software Related
Documentation and/or Documentation that would impact upon either reliability or
the form, fit or function of the MATERIAL. VENDOR further agrees, at the time of
such notification, to provide SWBT with (a) a MATERIAL change number; (b) a
description of the change; (c) the reason for the change; (d) a description of
the impact of the change upon the following: (i) reliability, (ii) VENDOR's
revised Specifications, and (iii) form, fit or function; (e) the name of a
designated person and phone number to contact for information regarding the
change; (f) a date after which all newly manufactured MATERIAL will have the
change applied in the manufacturing process; (g) a date by which all changes are
expected to be completed by VENDOR for all MATERIAL; and (h) the recommended
repair location (SWBT's or VENDOR's facility).
It will be VENDOR's responsibility to furnish MATERIAL change notices for all
MATERIAL provided hereunder in accordance with TR-TAP-000209, Issue 5, "Product
Change Notices". Such MATERIAL change notices will be forwarded to the addresses
contained in Appendix IV, attached hereto, and by this reference made a part
hereof, or as otherwise specified in writing only by:
Area Manager-Maintenance Engineering
Southwestern Xxxx Telephone Company
Xxx Xxxx Xxxxxx, Xxxx 00-X-00
Xx. Xxxxx, Xxxxxxxx 00000-0000
In order for SWBT to review MATERIAL changes, a minimum of thirty (30) days'
advance notice will be required except for those cases where an extremely
unsatisfactory condition requires immediate action. The final classification of
any MATERIAL change proposed by VENDOR will be by mutual Contract between VENDOR
and SWBT.
For changes classified as "A" or "AC", VENDOR agrees to promptly modify or
replace, at no charge, all affected MATERIAL provided hereunder and the
Documentation relevant thereto. SWBT will have the right to invoice VENDOR for
any labor expenses incurred by SWBT attributable to the replacement of such
MATERIAL.)
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-
For changes classified as "B" or "D", VENDOR agrees to notify SWBT of the exact
nature thereof and discuss with SWBT details regarding the proposed
implementation procedure for affected MATERIAL which is being or will be
manufactured. SWBT will determine, at its option, if MATERIAL previously shipped
will be modified or replaced. Should such modification or replacement be deemed
necessary, VENDOR will arrange therefor at prices and schedules to be mutually
agreed upon with SWBT prior to implementation. Relevant Documentation for such
affected MATERIAL will also be provided by VENDOR at no charge.
In the event that SWBT and VENDOR fail to reach Contract on any change in
MATERIAL proposed by VENDOR, SWBT will have the right without penalty to
terminate this Contract and any or all Orders for MATERIAL affected by such
change(s) that may have been issued by SWBT.
B45. QUALITY ASSURANCE
VENDOR hereby agrees that MATERIAL and Services furnished hereunder by VENDOR
will be subject to:
I. VENDOR'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 and subsequent issues thereof:
TR-TSY-000179 - "Software Quality Program Generic Requirements"
TR-TSY-000282 - "Software Reliability and Quality Acceptance Criteria"
TR-TSY-000332 - "Reliability Prediction Procedure for Electronic
Equipment"
TR-TSY-000357 - "Component Reliability Assurance Requirements for
Telecommunications Equipment"
TR-NWT-001037 - "Statistical Process Control Program Generic Requirements"
TR-NWT-001252 - "Quality System Generic Requirements"
TR-NWT-001323 - "Supplier Data - Comprehensive Generic Requirements"
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-
Requirements listed in the MARKING Clause, as specified in QPS No. 94.890,
Issue 4, "Common Language Equipment Identification (CLEI)/Bar Code Labels"
attached hereto as Appendix V.
VENDOR further agrees that it will:
(a) Notify SWBT or SWBT's Agent when MATERIAL and/or Services is ready for
examination and give SWBT or SWBT's Agent reasonable opportunity to
examine MATERIAL at any time prior to the scheduled shipment date and
Services at any time prior to the scheduled completion date. At SWBT's
option, examination of MATERIAL and/or Services may be performed prior to
final assembly and/or completion of manufacturing or repair processes in
accordance with the above-referenced QPS and/or MOP.
(b) Provide SWBT or SWBT's Agent with copies of VENDOR's Quality Manual,
current inspection procedures and product specifications for the MATERIAL
and Services furnished hereunder.
(c) Maintain and make available to SWBT or SWBT's Agent the data obtained
through VENDOR's quality control procedures which demonstrate that the
MATERIAL and Services meet the specified quality and reliability
requirements.
(d) Provide SWBT or SWBT's Agent, at no charge, with access to VENDOR's test
equipment, facilities, data and specifications, assistance from VENDOR's
personnel and sufficient working space to enable SWBT or SWBT's Agent to
perform said Quality Assurance Examination and/or Process Surveillance
and/or a review of VENDOR's total quality program at VENDOR's facilities.
(e) Only MATERIAL subject to review by SWBT or SWBT's Agent will be accepted
for delivery to SWBT. Where VENDOR is authorized by SWBT to establish a
stock of MATERIAL for future shipment, such MATERIAL will be available for
examination by SWBT or SWBT's Agent prior to reserving same for SWBT and
such reserved MATERIAL will not be shipped on orders to anyone other than
SWBT.
Nothing contained herein will affect SWBT's rights hereunder, under any
warranty, or under other provisions of this Contract. The purchase of any
MATERIAL and/or Services hereunder is subject to SWBT's inspection and
acceptance after delivery thereof.
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-
B46. QUALITY ASSURANCE RELIABILITY
VENDOR hereby agrees that MATERIAL furnished hereunder by VENDOR will, at the
time of shipment:
a. Have sufficient burn-in operating time at the component, circuit pack
and/or system level to assure an Infant Mortality Factor ("IMF") of not
more than 2.5. The IMF is the ratio of the failures experienced in the
first year of operation (8760 hours) to the failures experienced in a year
of operation at Steady State Reliability ("SSR") assuming a Weibull Infant
Mortality Model with a slope of 0.75 and 10,000 hours to reach SSR.
b. Meet the Quality and Reliability requirements specified in TR-NWT-000499,
Issue 5, "Transport Systems Generic Requirements: Common Requirements",
Section 3.
Nothing contained herein will affect SWBT's rights hereunder, under any
warranty, or under any other provisions of this Contract.
B47. COMPLAINTS
SWBT reserves the right to notify VENDOR in cases where SWBT has identified
current or potential problems or service areas concerning the operation,
maintenance, engineering, installation or design of MATERIAL furnished
hereunder. Whenever SWBT exercises such right, VENDOR 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 TA-OPT-00230, Issue 2, September, 1993,
entitled "Engineering Complaints and Service Failure Analysis Reports."
(b) Acknowledge receipt of such Engineering Complaint and advise SWBT of
VENDOR's proposed organization responsible for resolving it within ten
(10) working days of VENDOR's receipt thereof.
(c) Resolve such Engineering Complaint within ninety (90) calendar days of the
date of SWBT'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, VENDOR will issue an "interim report" as defined in
TA-OPT-00230.
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-
(d) Furnish to SWBT a monthly report of the status of open Engineering
Complaints, in a mutually agreed upon medium, together with a proposed
schedule for their resolution.
(e) Notify SWBT in writing when an Engineering Complaint has been resolved.
B48. EMERGENCY SUPPORT SERVICE
In the event any natural or other emergency/disaster occurs whereby MATERIAL
and/or SERVICE provided pursuant to this Contract is/are rendered inoperative
and such a condition materially affects SWBT's ability to provide
telecommunications services to its subscribers, VENDOR agrees, at SWBT's
request, to assist SWBT as follows:
(a) VENDOR will locate backup or replacement MATERIAL and/or SERVICE for
SWBT's use.
(b) VENDOR will provide SWBT with a periodically updated current listing of
technical support personnel, together with after-hours telephone contact
procedures, to assist SWBT in resolving out-of-service conditions.
(c) If MATERIAL is available from VENDOR's stock, VENDOR will make every
effort to ship replacement MATERIAL in a manner specified by SWBT within
twenty-four (24) hours of receipt of SWBT's request therefor.
(d) When MATERIAL required by SWBT is not available from stock for immediate
shipment, VENDOR agrees to pursue the following alternative courses of
action:
(i) Assist SWBT in locating functionally equivalent substitute MATERIAL.
(ii) If requested by SWBT, schedule the repair or new manufacture of
MATERIAL on a priority basis. SWBT will indemnify VENDOR for any
penalties incurred by VENDOR as a result of such priority efforts
due to contractual obligations with third parties.
(iii) Assist SWBT by providing field technical personnel to make temporary
modifications and arrangements to mitigate the effects of
out-of-service conditions. If requested by SWBT, VENDOR will
document such efforts and associated charges.
Charges for replacement MATERIAL will be at the current Contract price or, if no
such Contract exists, VENDOR's then current published selling price. Additional
charges, if any, for
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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VENDOR's authorized use of overtime and premium transportation necessary to
alleviate the out-of-service condition will be included as a separate item on
VENDOR's invoice.)
VENDOR will make available the individual whose title, phone number and location
are listed below to provide assistance and information on a twenty-four (24)
hour basis for all of the support service described above:
Director of Support Services
----------------------------
TITLE
Xxx Xxxxxxxx
----------------------------
NAME
Moorestown, NJ
----------------------------
LOCATION
000-000-0000
----------------------------
PHONE
B49. MOST FAVORED CUSTOMER
VENDOR hereby represents and warrants that all prices, benefits, warranties and
terms contained herein and in Orders issued pursuant hereto are and will
continue to be during the term of this Contract at least as favorable as those
currently being and which will be offered by VENDOR to any of its other
similarly situated customers.
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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EQUIPMENT ACQUISITION
C1. GENERAL
VENDOR agrees to sell to SWBT, upon the terms and conditions set forth in this
Contract, Equipment specified in Orders submitted by SWBT pursuant to this
Section and accepted by VENDOR.
C2. FORM OF ORDER
Orders for equipment will be written on SWBT's forms and contain the following
information:
a. The incorporation by reference of this Contract.
b. A complete list of the Equipment to be purchased, specifying
quantity, type and description.
c. The purchase price, net of any purchase option or trade-in credit.
d. The Delivery Date.
e. The Installation Date.
f. The delivery location including xxxxx, xxxxxx, xxxx, xxxxx and zip
code.
g. The installation Site.
h. Any special terms and conditions agreed upon by the parties.
C3. TITLE AND RISK OF LOSS
Title and Risk of Loss to Equipment purchased pursuant to this Contract will
pass to SWBT at FOB point. Upon receipt of payment, VENDOR will furnish SWBT a
Xxxx of Sale and all other documents requested by SWBT to enable it to perfect
unencumbered title to the Equipment.
C4. WARRANTY
VENDOR warrants to SWBT that Equipment furnished hereunder will be free from
defects in material and workmanship, free from all security interests, liens and
encumbrances for a period of ninety (90) days for Software and one (1) year for
Equipment and will conform to and perform in accordance with VENDOR's published
specifications, drawings and samples. These warranties will be in addition to
all other warranties, express, implied or statutory. In addition, if any such
Equipment contains one or more manufacturer's warranties, VENDOR hereby
assign(s) such warranties to SWBT. Equipment not meeting the warranties will, at
SWBT's option, be repaired, adjusted or replaced by VENDOR at no cost to SWBT.
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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VENDOR also warrants to SWBT that Services will be performed in a first-class,
workmanlike manner. All warranties will survive inspection, acceptance, payment,
and use.
C5. SITE PREPARATION
VENDOR agrees to furnish to SWBT, in writing, Equipment specifications,
Installation Site requirements and VENDOR's recommendations for Site preparation
in line with a mutually agreed program schedule prior to the Delivery Date
specified in the applicable Order. The specifications will contain sufficient
detail to ensure that the Equipment to be installed will operate efficiently in
accordance therewith. Any changes in specifications or Installation Site
requirements will be sent to SWBT, in writing, at least ninety (90) calendar
days prior to the delivery of any additional units of Equipment which may be
ordered after the initial Order. SWBT will have the Installation Site prepared
at no expense to VENDOR in accordance with the Equipment specifications
furnished by VENDOR. Installation Site preparation will be scheduled to be
completed at least ten (10) calendar days prior to the Delivery Date specified
in the applicable Order, subject to the delay provisions of Clause C7, DELIVERY
of this Section, VENDOR may inspect the Site on the scheduled date for
completion of preparation or immediately after SWBT informs VENDOR that
Installation Site preparation is complete. VENDOR will promptly report to SWBT
in writing, the date of the inspection and any nonconforming conditions.
Any alterations or modifications in Installation Site preparation which are
attributable to incomplete or erroneous Equipment specifications, Installation
Site requirements or Installation Site recommendations provided by VENDOR will
be made by SWBT at VENDOR's expense.
C6. DELIVERY
VENDOR agrees to deliver all Equipment on the Delivery Dates and to the
Installation Sites specified in the applicable Orders. SWBT may request delivery
in advance of the Delivery Date specified in an Order by notifying VENDOR in
writing to that effect at least thirty (30) days prior to the specified Delivery
Date. If such advanced delivery is accepted by VENDOR, SWBT will amend the Order
accordingly.
At any time, but not less than thirty (30) days prior to the Delivery Date
specified in an Order, SWBT, by written notification to VENDOR, may delay such
Date, for a period not to exceed thirty (30) days.
VENDOR will assume full responsibility for dealing with carriers to insure
timely delivery of its shipments, locate missing or late shipments, resolve
billing for transportation charges and submit and resolve all insurance claims
arising from damage to its shipments.
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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C7. TRANSPORTATION
The transportation charges applicable to Equipment to VENDOR's plant will be
paid by SWBT. VENDOR will bear the cost of transportation back to SWBT for
Equipment (a) shipped for mechanical replacement purposes, (b) removed as a
result of Equipment failure, whether for the convenience of VENDOR or pursuant
to a demand by SWBT as provided herein, and (c) removed as a result of a default
by VENDOR of any of the terms and conditions of this Contract or any Order.
Transportation charges to ship empty packing cases will be paid by VENDOR except
when the Equipment is moved at SWBT's request from one SWBT Installation Site to
another.
Transportation charges payable by SWBT will not exceed the cost of shipment
between SWBT's location and the location of VENDOR's nearest plant of
manufacture of the Equipment being shipped, regardless of the actual point of
origin or destination of the Equipment.
SWBT will pay only those rigging or drayage costs incurred at SWBT's
Installation Site, except when VENDOR is responsible for payment of
transportation charges as stated above.
C8. INSTALLATION
VENDOR agrees to install at the prices listed in Appendix 1, all Equipment
ordered hereunder, including all necessary cabling, connection with SWBT-
supplied power, utility and communications services, and in all other respects
make the Equipment ready for operational use.
The Equipment will be deemed installed and ready for operational use at the
conclusion of a successful Acceptance Test performed at the Installation Site.
VENDOR will provide SWBT with written documentation of the successful Acceptance
Test and certify, by the Installation Date, that the Equipment is ready for
operational use in accordance with SWBT's Order.
C9. INSTALLATION QUALIFICATION STANDARDS
SWBT, at its sole discretion, may elect to have VENDOR install the MATERIAL, in
which case VENDOR will obtain prior approval from SWBT's local Vendor
Certification Committee and install the MATERIAL in accordance with SWBT's
Technical Publication No. TP 76300, "Installation Guide", dated October, 1993
and future revisions thereof. In addition, VENDOR agrees to adhere to VENDOR's
own installation standards to the extent such standards do not reduce or detract
from SWBT's installation requirements or impair or impact the design or
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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operation of the MATERIAL. VENDOR's intended use of any subcontractor or agent
to install MATERIAL will likewise be subject to SWBT's prior approval.
C10. ACCEPTANCE
SWBT will conduct an Acceptance Test of the Equipment during the Acceptance
Period starting the day after VENDOR certifies in writing that the Equipment
is ready for Acceptance Testing, if VENDOR installs the Equipment, or the day
following completion of installation by SWBT. Testing will be performed to
determine whether:
a) The Equipment performs the functions and operates in conformance
with VENDOR's representations and then current published performance
specifications applicable to such Equipment.
b) The Documentation for the Equipment meets the requirements of this
Contract and the applicable Order.
If the Equipment fails to successfully complete the Acceptance Tests within
thirty (30) calendar days after the Installation Date, SWBT may at its sole
option, upon written notice to VENDOR, elect one or more of the following
options:
(i) Extend such ninety (90) calendar day period to permit SWBT to
continue the Acceptance Test(s).
(ii) Direct VENDOR to promptly remove the defective Equipment and install
replacement Equipment which will be subject to the same Acceptance
Test(s).
Installation of the replacement Equipment will be within the time period
mutually agreed upon by the parties in writing. SWBT may terminate the
applicable Order and request the removal of the Equipment with no charges or
penalties.
In the event the Equipment fails to meet the Standard of Performance ("SOP")
defined below during the initial thirty (30) consecutive calendar days, the
performance period will continue on a day-to-day basis until the SOP is met for
a total of thirty (30) consecutive working days.
Where Equipment is ordered for use in or as part of the installation of a
Centrally Developed System, the Acceptance of such Equipment will also be
subject to the successful completion of any and all performance criteria,
Equipment exercises and/or Acceptance Tests that are designed by the central
developers for the purpose of insuring that such Equipment operates in
accordance with the design specifications of the Centrally Developed System.
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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The Equipment will not be Accepted nor will any obligation for payment exist
unless and until the SOP is met. Acceptance of the Equipment will be made in
writing by SWBT.
C11. SUPPLIES
VENDOR agrees to provide SWBT with specifications for all supplies, such as
cards, paper, inked ribbons, magnetic tape or other magnetic storage media, and
other related items, if any, which are used or required to operate the Equipment
acquired hereunder. Such specifications will be provided on or before the
Delivery Date of such Equipment.
If such supplies are requested by SWBT from VENDOR, SWBT will issue an
appropriate Order therefor. Rental and maintenance charges do not include
supplies. SWBT reserves the right to obtain such supplies from sources other
than VENDOR.
C12. RELOCATION
Upon thirty (30) days' prior written notice from SWBT, VENDOR agrees to prepare
for relocation and reinstall Equipment purchased hereunder at any other site at
SWBT's expense. Charges will be at the prices listed in Appendix 1.
C13. TRADE-INS
SWBT may at any time request VENDOR to substitute any upgraded or
later-developed Equipment for Equipment purchased pursuant to this Contract. In
such event, VENDOR may, at its option, allow a trade-in credit for the old
Equipment toward the purchase price of the new Equipment equal to its
depreciated value using straight-line depreciation and a seven (7)-year life.
C14. CABLES AND RELATED ITEMS
Each Order will be deemed to include, at no additional charge unless otherwise
specified, all cables necessary to operate all ordered Equipment at SWBT's
Installation Site, as well as all maintenance racks, terminators, logics,
diagnostic programs, software, firmware, Documentation, and any other components
or materials necessary to enable the Equipment to be operated in accordance with
VENDOR's published specifications and any additional specifications set forth in
the applicable Order. Site specific materials will be added at the prevailing
charges in Appendix I.
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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EQUIPMENT MAINTENANCE
D1. GENERAL
VENDOR agrees to provide maintenance service on Equipment acquired hereunder by
SWBT upon the terms and conditions set forth in this Contract and in Orders
placed by SWBT pursuant to this Section and accepted by VENDOR. Such Orders will
be deemed accepted by VENDOR provided the Orders are in conformance with this
Section.
D2. FORM OF ORDER
Orders for Equipment maintenance will be written on SWBT's forms and will
contain the following information:
(a) The incorporation by reference of this Contract.
(b) A complete list of the Equipment to be serviced, specifying
quantity, type, description, the monthly maintenance charge for each
item of Equipment, the term of the Order and the total
annual/monthly maintenance charges payable by SWBT.
(c) The location at which the Equipment is installed, including xxxxx,
xxxxxx, xxxx, xxxxx and zip code.
(d) The designation of a point of contact at which VENDOR's maintenance
representative will receive notification of Equipment failure.
(e) The Principle Period of Maintenance, or extension thereof, selected
by SWBT.
(f) Any special terms and conditions agreed upon between the parties.
D3. TERM OF ORDER
The maintenance term will commence on the date set forth in the applicable Order
(but in no event earlier than the expiration of the warranty period for the
Equipment involved) and continue for the initial maintenance term specified
therein and thereafter until canceled or terminated by SWBT as provided herein.
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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D4. BASIC SERVICE
VENDOR agrees to perform the following basic maintenance service: accomplish
regularly scheduled Preventive Maintenance, if applicable; update the Equipment
to provide the latest reliability improvements; respond to requests for and
accomplish Remedial Maintenance during the Principal Period of Maintenance;
supervise the preparation of the Equipment for movement and set-up after
movement; and provide all tools and test equipment necessary for the maintenance
of the Equipment. There will be no additional maintenance charges for:
(a) Preventive Maintenance, unless performed outside the Principal
Period of Maintenance, which will include, for purposes of this
paragraph, the mutually agreed to scheduled time for Preventive
Maintenance.
(b) Remedial Maintenance which was begun during the Principal Period of
Maintenance or an extension thereof or when VENDOR was notified
during the Principal Period of Maintenance or extension thereof of
the need for Remedial Maintenance.
(c) Remedial Maintenance required within a thirty (30)-day period due to
a recurrence of the same malfunction.
(d) Time spent by maintenance personnel after arrival at SWBT's Site
awaiting the arrival of additional maintenance personnel and/or
delivery of parts, etc., after a service call has commenced.
(e) Remedial Maintenance required when the scheduled Preventive
Maintenance preceding the malfunction had not been performed.
(f) Parts required for Preventive or Remedial Maintenance, including
replacement parts.
(g) Remedial Maintenance performed outside the Contracted Period of
Coverage, unless specifically agreed otherwise by SWBT in writing.
When so agreed, SWBT will pay for Remedial Maintenance requested to be performed
outside of the Contracted Period of Coverage at VENDOR's published rates;
relocation of Equipment within a SWBT location during the Contracted Period of
Coverage; unpacking, installation and Acceptance Tests, any Equipment
certification for maintenance, and packing, removal and supervising the removal
or moving of any Equipment.
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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Preventive Maintenance, if applicable, will be performed at mutually agreed upon
times which do not unreasonably interfere with SWBT's use of the Equipment.
VENDOR will specify in writing the frequency and duration of the Preventive
Maintenance required for the Equipment, and SWBT will specify the Preventive
Maintenance schedule which may be modified by mutual Contract.
D5. REMEDIAL MAINTENANCE
Remedial Maintenance will be performed after notification to VENDOR that the
Equipment is inoperative. VENDOR will furnish SWBT with a designated point of
contact for such notification. During the Principal Period of Maintenance, or
extension thereof, set forth in the applicable Order, VENDOR agrees to have a
Field Engineer arrive at SWBT's Site within two (2) hours after notification
that Service is required. Outside such Principal Period of Maintenance, or
extension thereof, VENDOR will use its best efforts to have its Field Engineer
arrive at SWBT's Site within two (2) hours after notification that Service is
required. Such Service calls will be made at VENDOR's then current standard
per-call rates.
Only one (1) Field Engineer will respond to a request for maintenance outside of
the Principal Period of Maintenance or extension thereof, unless it is mutually
agreed that more than one (1) Field Engineer is required.
The Principal Period of Maintenance or extension thereof may be changed by SWBT
upon thirty (30) days' prior written notice to VENDOR. Separate Principal
Periods of Maintenance may be specified when there are two (2) or more
installations of VENDOR provided Equipment at the same Site.
In the event that VENDOR finds itself unable to meet the standards set forth
above in responding to SWBT's maintenance requests, VENDOR will, in
consideration of the size of the installed base, locate a Field Engineer within
a fifty (50) mile radius of SWBT or, upon the reasonable request of VENDOR, SWBT
may provide office space for such Field Engineer at SWBT's Site.
D6. PARTS
There will be no additional charges for replacement parts. Only new standard
parts or parts of equal quality will be used in effecting repairs. Parts which
have been replaced will become the property of VENDOR and will be removed from
SWBT's Site. Parts which are installed on purchased Equipment will become the
property of SWBT.
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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D7. PARTS INVENTORY
VENDOR agrees to maintain a sufficient supply of spare parts at SWBT's site to
make emergency repairs. VENDOR will use its best efforts to maintain all other
parts necessary for the repair of the Equipment within a fifty (50) mile radius
of SWBT's site.
D8. ENGINEERING CHANGES
Engineering changes which are made to Equipment after its manufacture will be
incorporated by VENDOR into the Equipment at SWBT's site. These changes will be
incorporated only after consultation with and scheduling by SWBT. Time required
for any modifications or engineering changes will be subject to the provisions
hereof relating to maintenance credit for downtime. In addition, VENDOR will,
during such consultation, specify any related products which may be affected by
such engineering changes. All modifications will be subject to the provisions of
Clause C11, ACCEPTANCE, of Section C hereof.
There will be no charge for the installation of engineering changes.
D9. MAINTENANCE LOG
VENDOR agrees to maintain a legible maintenance log at each installation site
which will be made available to SWBT for inspection upon request. This log will
include, at a minimum, the following:
(a) The date and the time VENDOR was notified.
(b) The date and time of VENDOR's arrival.
(c) The time the Equipment was made available to VENDOR.
(d) The type and model number(s) of the Equipment.
(e) A description of the malfunction.
(f) The time spent for repair.
(g) The corrective action taken, including parts used.
(h) The time the Equipment was made available to SWBT.
(i) Applicable charges, if any.
(j) Identification of VENDOR's representative.
(k) SWBT's representative's signature.
D10. ACCESS
SWBT will provide VENDOR with reasonable access to the Equipment to perform
maintenance service.
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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D11. STORAGE AND WORK SPACE
SWBT will provide, at no charge to VENDOR, space for spare parts and working
space, including heat, light, ventilation, electric current and outlets for use
by VENDOR's maintenance personnel. These facilities will be located at SWBT's
site within a reasonable distance of the Equipment to be maintained. VENDOR will
maintain this space in an orderly manner, consistent with SWBT's site rules.
SWBT will not be liable for loss or damage to VENDOR's equipment or materials
stored on SWBT's site.
D12. MAINTENANCE BY OTHER
SWBT will not knowingly permit persons other than authorized representatives of
VENDOR to perform maintenance or attempt repairs to any Equipment while that
Equipment is covered by maintenance provided by VENDOR hereunder, unless
otherwise agreed by XXXXXX.
X00. ESCALATION PROCEDURE
VENDOR will endeavor to initiate on-site remedial Service at SWBT's site within
the specified response time. If the trouble has not been corrected within six
(6) hours after SWBT's request for Service, VENDOR's support center personnel
will initiate an escalation process to provide VENDOR's regional engineering
assistance. If the trouble has not been corrected within twelve (12) hours after
SWBT's request, the problem will be escalated to VENDOR's engineering control
center. No charge will be made for any such escalation.
D14. WARRANTY
VENDOR warrants to SWBT that Equipment maintained hereunder will be of the same
quality, material and workmanship that of the original equipment manufacturer
(the "OEM") and will conform to and perform in accordance with the OEM's
specifications, drawings and samples. VENDOR also warrants to SWBT that Services
will be performed in a first-class, workmanlike manner. In addition, if material
furnished hereunder contains one or more manufacturers' warranties, VENDOR
hereby assigns such warranties to SWBT. All warranties will survive inspection,
acceptance and payment. Equipment not meeting the foregoing warranties will, at
SWBT's option, be repaired, adjusted or replaced by VENDOR at no cost to SWBT.
D15. TIME AND MATERIAL
From time to time SWBT may require Maintenance on Equipment not covered under a
Maintenance Order. In these cases SWBT will notify VENDOR of the problem and
VENDOR
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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will provide assistance on a time and material basis. VENDOR will provide an
invoice to SWBT for the services performed and SWBT will make payment 30 days
from the receipt of the invoice.
The "Time and Material" (Per-call Equipment or Per-Call Software Support) rate
will be at the prices listed in Appendix I. The time for on-site support will
begin upon the arrival of VENDOR's support personnel at the SWBT site.
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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SOFTWARE LICENSE
E1. LICENSE
(a) Subject to the terms and conditions of this Agreement, VENDOR grants to
SWBT and SWBT hereby accepts from VENDOR a royalty-free, fully-paid
license (the "License") to use the Software at the Sites in connection
with the Products and Services.
(b) The License shall be non-exclusive.
(c) The License may not be sublicensed, transferred or assigned by SWBT
without the prior written consent of VENDOR provided, however SWBT shall
have the right to assign the License to any present or future affiliate,
subsidiary or parent corporation of SWBT without VENDOR's consent.
E2. DELIVERY
Upon the execution of this Contract, VENDOR shall deliver to SWBT copies of all
available records, schematics, source codes, documentation and other technical
information relating to the Software (the "Software Documentation").
E3. OWNERSHIP
(a) VENDOR shall retain all right, title and ownership interest in and to the
Software, the Software Documentation, the accompanying source and object
codes and all supplementary materials relating thereto, including, without
limitation, patent, copyright, trademark, service xxxx and other rights
inherent thereto, in the form in which the same are delivered to SWBT and
in and to any customizations, modifications or enhancements thereto
prepared or otherwise developed solely by VENDOR.
(b) In the event that VENDOR grants to SWBT written permission to make any
customizations, enhancements and/or modifications in the Software, the
accompanying source and object codes and any supplementary materials
relating thereto, VENDOR shall have, without the requirement of any
additional documentation or action, and SWBT hereby grants to VENDOR, a
royalty-free, non-exclusive, worldwide license to use such permitted
customizations, enhancements and/or modifications including, without
limitation, all patent, copyright, trademark, service xxxx and other
rights inherent thereto. For purposes of this Section 3(b),
customizations, enhancements and/or modifications shall mean any
alteration of the source code of the Software which alters or changes the
"visible" operation of the program.
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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(c) SWBT agrees that it shall keep the Software and the Software Documentation
in a secure place, under access and use restrictions which are designed to
prevent disclosure of the Software and the Software Documentation to
unauthorized persons, and which are not less secure than those applicable
to SWBT's trade secrets.
E4. COPYRIGHT AND TRADEMARK NOTICES
SWBT agrees to ensure that copyright and trademark notices identifying VENDOR as
the owner of the Software will be included in all copies of the Software and in
the Software Documentation so as to be readily visually perceptible by users
thereof.
E5. TERM
The term of the License shall commence upon the date hereof and shall remain in
effect perpetually thereafter unless terminated as set forth in this Contract.
E6. REPRESENTATIONS AND WARRANTIES OF VENDOR
(a) VENDOR represents and warrants to SWBT that:
(i) VENDOR has the full right, power and authority to enter into and
perform its obligations under this Contract;
(ii) VENDOR is the owner of the Software and the Software
Documentation, subject to non-exclusive licenses granted to third parties;
(iii) to VENDOR's knowledge, no claims have been made by third
parties that the Software infringes the intellectual property rights of others.
(b) VENDOR SHALL NOT BE LIABLE TO THE SWBT FOR ANY INDIRECT, SPECIAL,
INCIDENTAL, OR CONSEQUENTIAL DAMAGES, WHETHER FORESEEABLE OR NOT,
RESULTING FROM THE USE OF THE SOFTWARE (OR ANY COMPONENT THEREOF) BY SWBT.
E7. CONFIDENTIALITY
(a) The parties agree that all Confidential Information (as defined below) of
the other party will be kept confidential and will not, without the prior
written consent of the disclosing party, be disclosed by the recipient or
its Representatives (as defined below), in any
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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manner whatsoever, in whole or in part, to any person other than the
recipient Representatives; provided, however, the provisions of this
Section 7 shall in no way restrict any disclosure by the recipient as
required by law, court order or order of a governmental agency or
government regulation, or if the recipient in its reasonable judgment
determines that such disclosure is necessary to comply with or avoid
violation of any court or governmental order, regulation or statute. In
the event the recipient is required to disclose Confidential Information
as contemplated by the provision in the immediately preceding sentence,
the recipient shall notify the disclosing party in writing of such
requirement prior to making any such disclosure.
(b) "Confidential Information" means any information or material which is
proprietary to the parties or designated as Confidential Information by
the disclosing party, whether or not owned or developed by the disclosing
party, and which the recipient obtains knowledge of through or as a result
of the relationship established hereunder, or as a result of access to the
disclosing party's premises, or as a result of communications with the
disclosing party's employees or independent contractors, including,
without limitation, the following types of information, and other
information of a similar nature (whether or not reduced to writing still
in development or otherwise fixed in tangible form), designs, concepts,
drawings, ideas, inventions, specifications, techniques, discoveries,
models, data, source codes, object code documentation, diagrams, flow
charts, research, development, processes, procedures, know-how, new
product or new technology information, marketing techniques and materials,
marketing plans, timetables, strategies and development plans (including
prospective trade names or trademarks), customer names and other
information related to customers, pricing policies, and financial
information. Confidential Information shall not include information that
(i) is now or later becomes generally known to the telecommunications or
computer software industry (other than as a result of a breach of this
Contract), (ii) is independently developed by the recipient, (iii) the
recipient lawfully obtains from any third party who has obtained such
information lawfully and not in violation of this Contract, or (iv) is
later published or generally disclosed to the public.
(c) "Representatives" shall mean (i) all officers, directors, and employees of
the parties who in the ordinary course and scope of performing their
duties reasonably require disclosure of the terms and conditions of this
Contract, and (ii) agents, consultants and advisors of the parties,
including legal counsel, accountants, and management consultants or
investment advisors, whose assigned duties reasonably require that
disclosure of the terms and conditions of this Contract be made to such
persons or to whom such disclosure is reasonably necessary to carry out
the provisions 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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(d) SWBT acknowledges that the Software Documentation and the Software
constitute Confidential Information of VENDOR. SWBT agrees that it will
not sell, rent, license, distribute, transfer or, directly or indirectly,
disclose or permit the sale, rental, licensing, distribution, transfer or
disclosure of the Software Documentation and the Software or its contents
except in accordance with the terms and conditions hereof.
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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SOFTWARE MAINTENANCE
F1. SUPPORT AND MAINTENANCE SUPPORT SERVICES
Support Services.
VENDOR will provide the Support Services subject to the payment by
SWBT of the fees set forth in Appendix I.
Technical Support Services.
VENDOR will provide Technical Support Services to SWBT between 9:00
A.M. and 7:00 P.M. from Monday to Friday, [Philadelphia,
Pennsylvania, USA] (excluding holidays) for problems related to the
Products and Services.
Documentation.
VENDOR will document all problems and their resolution in a
technical bulletin. If appropriate, VENDOR will provide SWBT, at no
additional charge, with a technical bulletin each time Support
Services are performed for SWBT.
Excluded Support Services.
Support Services shall not include repair or service required as a
result of: (a) modification of the Products and Services performed
by other than VENDOR and without VENDOR's prior approval, or
installation contrary to VENDOR's recommended procedures, including
the attachment of a Non-Qualified Device; (b) Products or Services
which have been subjected to unusual physical or electrical stress;
(c) damages or defects resulting from repairs made by someone other
than VENDOR; (d) improper or inadequate maintenance by SWBT; (e) use
of any of the Products and Services not in accordance with the
VENDOR's guidelines, specifications and Documentation; (f) use in
conjunction with SWBT-supplied software, hardware or firmware not
approved by VENDOR, including a Non-Qualified Device; (g) improper
Site preparation and maintenance; (h) negligence of the SWBT or
SWBT's agents or employees; (i) the negligent, willful or reckless
acts of any third party; or (j) force majeure, as described herein.
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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If VENDOR performs services at SWBT's request beyond the scope of
Support Services contemplated by this Agreement, VENDOR will xxxx
SWBT at VENDOR's then applicable rates and terms.
Additional Support Services.
In the event that on-site Support Services are required as a result
of Equipment failure or malfunction, SWBT and VENDOR will mutually
agree on the terms on which such on-site Support Services will be
performed. Following the resolution of the problem, if the on-site
Support Services were required as a result of a Product and Services
malfunction covered by the warranties described herein or in the
Purchase Agreement, then the Support Services provided will be at no
charge to SWBT; otherwise such Support Services shall be separately
invoiced in accordance with the Pricing Schedule.
F2. RESPONSIBILITIES
General. VENDOR will supply SWBT with all appropriate documentation and
assistance necessary to demonstrate and diagnose each problem with any
Products and Services, and will assist SWBT to implement promptly each
patch, work-around, or other solution to such problem provided by VENDOR.
Operator Training. SWBT is responsible for ensuring that the operation and
any maintenance of the Products and Services is performed by, or under the
direction of, an individual trained in the operation of the Products and
Services.
Access to Facilities. During normal working hours and subject to normal
security requirements, SWBT shall provide VENDOR with dial-in access, via
computer, to all facilities necessary to maintain the Products and
Services.
Products and Services Back-up. SWBT is responsible for maintaining a
current back-up copy of the Software.
Notification. SWBT shall notify VENDOR immediately in writing if SWBT
desires to locate additional products and services at any Site and of
SWBT's intention to relocate any Products and Services.
Periodic Reports. VENDOR will provide, upon written request, a quarterly
report describing (a) the Equipment that has been sent for repair and (b)
the status of repairs in process.
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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F3. PRICING
Pricing Schedule. The price for the Support Services shall be as described
in Appendix I.
Discount. It is understood that the prices offered in this Agreement
reflect a discount provided by VENDOR to SWBT provided that a payment of
one hundred percent (100%) of the price for the Support Services is
received [prior to the commencement of said Support Services.] [In the
event that SWBT desires to pay for Support Services on a quarterly basis,
the price for the Support Services shall be increased by ten percent
(10%).]
F4. FORM OF PAYMENT
SWBT shall pay one hundred percent (100%) of the price for Support
Services rendered upon presentation of invoices by VENDOR.
F5. CUSTOMS DUTY AND TAXES
Taxes. SWBT acknowledges that VENDOR has prepared the Pricing Schedule
taking into account Taxes imposed by the Tax Laws as in effect on the date
hereof.
Increases: Additional Taxes. In the event that any Tax Law is amended or
new laws are promulgated after the date hereof and the effect thereof is
to impose additional or new Taxes on any of [the Products and Services,]
the Support Services or the activities of VENDOR in connection with the
Support Services, the Pricing Schedule shall be amended to the extent of
any amount that VENDOR or any subcontractor is obligated to pay as a
result of such additional or new Taxes.
F6. TERM
Discontinuance. SWBT understands and agrees that contractor reserves the
right to discontinue the support of Products and Services. VENDOR agrees
to provide SWBT with at least six (6) months advance written notice of any
such discontinuance.
F7. WARRANTIES
VENDOR warrants that it will render the Support Services in a good and
workmanlike manner. As VENDOR's sole responsibility and SWBT's exclusive
remedy in the event of any material failure to meet such standard, VENDOR
shall make a reasonable effort to
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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remedy any resulting discrepancies. Any claim based on the foregoing
warranty must be submitted in writing in accordance with the provisions
set forth.
The parts utilized for repairs or replacements will be new or refurbished
and will include a ninety (90) day warranty from the date of shipment as
reflected on the commercial invoice. This warranty does not apply to
electrical parts such as lights, fuses, switches, etc.
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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ENTIRE CONTRACT
G1. ENTIRE CONTRACT
Is understood and agreed that estimates furnished by SWBT do not constitute
commitments. The terms contained in this Contract constitute the entire Contract
between VENDOR and SWBT and may not be modified except by a writing signed by
VENDOR and SWBT. Any terms contained in VENDOR's proposal or acceptance of
SWBT's offer, or that may appear in VENDOR'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, Contracts, and understandings of the parties in
respect of the subject matter hereof.
G2. SIGNATURES
IN WITNESS WHEREOF, VENDOR and SWBT, pursuant to due corporate authority have
caused this Contract to be signed in their respective names, in duplicate, as of
the date set forth below.
ACCEPTED: ACCEPTED:
VENDOR SWBT
SECURICOR TELESCIENCES, INC. SOUTHWESTERN XXXX TELEPHONE
COMPANY
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxx Xxxxxxxxxx
--------------------- --------------------
Title: V.P. Sales Title: Contract Manager
--------------- -----------------
Date: 8/4/95 Date: 7-26-95
---------------- ------------------
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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DISCOUNTS
This schedule applies to Contract No. C5790F0, effective June 1, 1995 between
Southwestern Xxxx Telephone Company and Securicor Telesciences, Inc.
Through the term of this Agreement, the discount for material shall be shown in
the schedule below:
Discount * Total Dollars UTS-4000 &
Level Forecasted Annually Sterling 500
----- ------------------- ------------
1 $0 - 1.5 million 0%
2 $1.5 mil - $4.0 mil 15%
3 $4.0 mil - $6.5 mil 20%
4 $6.5 mil - $8.0 mil 25%
5 $8.0 mil + 30%
Equipment eligible for discount.
New and Conversion Systems
UTS-4000 & Sterling 500 (hardware for simplex or duplex), cables internal to
UTS-4000 & Sterling 500.
Spares
Hardware associated with the UTS-4000 & Sterling 500 systems, cables internal to
UTS-4000 & Sterling 500.
* The discount will be based on total dollars forecasted for the contract
duration by Customer from Supplier. Unless otherwise agreed, the discount rates
will remain in effect for one contract year.
/s/ Xxxxx Xxxxxxxxxx /s/ Xxxxxx X. Xxxxxxx
-------------------- ---------------------
Xxxxx Xxxxxxxxxx Xxxxxx X. Xxxxxxx
Southwestern Xxxx Telephone Co. Securicor Telesciences Inc.
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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