1
Ex.10.14
Agreement No. 99006728
between
SBC Operations, Inc.
and
World Wide Technology, Inc.
for
EQUIPMENT, MINOR MATERIALS AND SERVICES
RELATED TO
THE INSTALLATION AND SALE OF
TELLABS TITAN PRODUCTS
*Certain material has been omitted from this exhibit pursuant to a
request for confidential treatment and filed separately with the
Securities and Exchange Commission.
2
TABLE OF CONTENTS
1.0 PREAMBLE...............................................................................................1
2.0 DEFINITIONS............................................................................................1
3.0 GENERAL TERMS AND CONDITIONS...........................................................................4
3.1 Agreement..............................................................................................4
3.2 Term of Agreement......................................................................................4
3.3 Termination And Cancellation...........................................................................4
3.4 Choice of Law..........................................................................................5
3.5 Cumulative Remedies....................................................................................6
3.6 Dispute Resolution.....................................................................................6
[* Confidential treatment requested]
3.8 Liens Prohibited.......................................................................................7
3.9 Title and Risk Of Loss.................................................................................7
3.10 Order of Precedence...................................................................................7
4.0 COMPLIANCE.............................................................................................7
4.1 Changes Required to Meet Codes, Laws & Regulations.....................................................7
4.2 No Third Party Beneficiaries...........................................................................8
4.3 Recyclable Material....................................................................................8
4.4 Reliability............................................................................................8
5.0 LIABILITY..............................................................................................8
5.1 Guaranty...............................................................................................8
6.0 STANDARDS..............................................................................................8
6.1 Product Change Notices.................................................................................8
6.12 Use of Published Specifications.......................................................................9
6.3 Buyer's Technical Information..........................................................................9
6.4 Marking...............................................................................................10
7.0 ORDERING..............................................................................................10
7.1 Order Procedure.......................................................................................10
7.2 Order Acknowledgment..................................................................................11
[*Confidential treatment requested]
[*Confidential treatment requested]
8.2 Cables and Related Items..............................................................................12
8.3 Invoicing And Payment.................................................................................12
8.4 Changes and Suspensions...............................................................................13
9.0 DELIVERY..............................................................................................13
9.1 Delivery and Performance..............................................................................13
9.2 Shipping and Packing..................................................................................13
10.0 PERFORMANCE..........................................................................................14
10.1 Records And Audits...................................................................................14
10.2 Monthly Order And Shipment Reports...................................................................15
10.3 Action Register......................................................................................15
10.4 Work Hereunder.......................................................................................15
10.5 Work Stoppage........................................................................................16
10.6 Tools and Equipment..................................................................................16
Proprietary Information
This information contained herein is not for use of disclosure outside
SBC Operation, Inc. their affiliates
and World Wide Technology, Inc. except under written agreement.
Page i
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Agreement No. 99006728
10.7 Use of Buyer's Systems...............................................................................16
10.8 Damages to Property and Live Equipment...............................................................17
10.9 Inspection...........................................................................................17
10.10 Installation Services...............................................................................17
10.11 Installation Performance............................................................................18
10.12 Installation/Cutover Assistance.....................................................................19
10.13 Acceptance..........................................................................................19
10.15 Relocation..........................................................................................20
11.0 REPAIR AND MAINTENANCE...............................................................................20
11.1 Notice of Delays & Liquidated Damages................................................................20
11.2 Limitation of Liability..............................................................................21
* Confidential treatment requested
13.0 OTHER................................................................................................22
13.1 Patents..............................................................................................22
13.2 Copyrights...........................................................................................22
13.3 Headings.............................................................................................22
EXHIBITS
* Confidential treatment requested
Exhibit B: Action Register
Page ii
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Agreement No. 99006728
1.0 PREAMBLE
This Agreement No. 99006728 ("Agreement") is between World Wide
Technology, Inc., a Missouri corporation ("Seller") and SBC Operations
Inc., a Delaware corporation ("Buyer"). This Agreement incorporates all
the terms and conditions from General Agreement No. 98005906, dated
March 15 1999, between the Seller and Buyer unless specifically
provided otherwise herein. To the extent that the terms and conditions
of the General Agreement differ from the Agreement, the Agreement shall
prevail.
All orders placed relating specifically to the purchase of Tellabs
Titan equipment and services ordered through World Wide Technology,
Inc. shall be governed by this Agreement. To the extent that the terms
and conditions of the Agreement differ from that of the Master
Agreement No.T0005476, dated July 17, 1997, between Pacific Telesis
Group and Tellabs Operations, Inc., the Master Agreement No. T0005476
shall prevail.
Buyer and Seller agree that the term Buyer includes any of Buyer's
Affiliates and the term Seller shall mean either World Wide Technology,
Inc. or its Original Equipment Manufacturer (OEM) supplier, as
applicable.
The parties, intending to be legally bound, agree as follows:
2.0 DEFINITIONS
For the purposes of this Agreement, 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.
"ACCEPTANCE DATE" - means the date on which a Product successfully
completes the Acceptance Tests (or the end of the Acceptance Period, if
the Product has not been rejected as of that date), and for Services
means the later of (i) the date in which Buyer inspects and accepts
Seller's Services or (ii) thirty days after Seller provides an invoice
for such Services if Buyer has not rejected or accepted such Services
prior thereto.
"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.
"ACCEPTANCE TEST" means the performance and reliability demonstrations
and tests that must be successfully completed by a Product during the
Acceptance Period which may include but not be limited to: (1) Buyer's
routine business transactions, (2) tests, demonstrations or
transactions performed during any Seller 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.
"APPROVAL FOR USE" means that a given Seller technology (i.e.,
Product), which is being deployed in Buyer's network, has successfully
completed all Technology Tests by Buyer, is fully approved for
deployment in Buyer's network and that Buyer has approved the price for
such Product, which are fundamental conditions precedent for a Product
to achieve Approval For Use status.
"CANCELLATION" means the occurrence by which either party puts an end
to this Agreement or Orders placed under this Agreement for breach by
the other and its effect is the same as that of "Termination" and,
except as otherwise provided for herein, the canceling party also
retains any remedy for breach of the whole Agreement or any unperformed
balance.
Proprietary Information
The information contained herein is not for use of disclosure outside
SBC Operation, Inc. their affiliates and World Wide Technology, Inc.
except under written agreement
Page 1
5
Agreement No. 99006728
"CENTRALLY DEVELOPED SYSTEM" means a computer-based information system
whose development project was managed and/or is being supported by
Buyer.
"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.
"DOCUMENTATION" means including, but not be limited to, user and system
manuals, and training materials in machine readable or printed form.
"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 Buyer. Downtime for each malfunction will start
one (1) hour after Buyer attempts to contact Seller's designated
representative at a prearranged contact point and will end when the
Product is operating in accordance with the requirements of the Order.
"EQUIPMENT" means a unit of hardware, including spare parts, acquired
or maintained hereunder, and includes any third party provided
Equipment.
"EXTENDED MAINTENANCE PERIOD" means any period of maintenance Service
outside of the Principal Period of Maintenance which may be selected by
Buyer.
"FIELD ENGINEER" means a person in Seller's employ qualified to repair
Products in a timely and professional manner.
"INFORMATION" means all ideas, discoveries, concepts, know-how, trade
secrets, techniques, designs, specifications, drawings, sketches,
models, manuals, samples, tools, computer programs, technical
information, and other confidential business, customer or personnel
information or data, whether written, oral or otherwise.
"INSIGNIA" means Buyer's trademarks, trade names, symbols, decorative
designs of evidence of Buyer's inspection.
"INSTALLATION" - means equipment mounting, placing, modification,
assembly, cabling, wiring, and testing to be performed by Seller in
accordance with the Specifications and/or instructions issued by, and
reasonably acceptable to, Buyer.
"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.
"INSTALLATION SITE" means the location, established by Buyer, at which
the Product will reside.
"LICENSED SOFTWARE" means software licensed to Buyer. Licensed Software
also includes all associated Program Material and Documentation.
"ORDERS" means such purchase orders, forms, memoranda or other written
communications as may be delivered to Seller for the purpose of
ordering Products and Services hereunder.
"PREVENTIVE MAINTENANCE" means maintenance performed or required to be
performed by Seller 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 Seller at any time
during the maintenance term for that Product; and (3) automatic update
services for all manuals and Documentation furnished with any Product.
"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.
Proprietary Information
The information contained herein is not for use of disclosure outside
SBC Operation, Inc. their affiliates and World Wide Technology, Inc.
except under written agreement
Page 2
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Agreement No. 99006728
"PRODUCTS" means a unit of equipment, apparatus, components, tools,
supplies, material, Software, or firmware thereto purchased or licensed
hereunder by Buyer from Seller and includes third party Products
provided or furnished by Seller. Products shall be deemed to include
any replacement parts or products.
"PROGRAM MATERIAL" means all material associated with Software provided
by Seller to Buyer hereunder including, but not limited to, test data,
flow charts, Documentation, source code, source code listings, data
file listings, input and output formats and use instructions.
"REMEDIAL MAINTENANCE" maintenance performed by Seller which is
necessary to return an inoperative or malfunctioning Product to good
operating condition.
"SERVICE(S)" - means any and all labor, support, facilities, material,
Equipment, tools, accessories, instruments and supplies necessary to
perform any and all services described in the applicable Order and
provided by Seller hereunder, including but not limited to,
consultation, engineering, Installation, removal, maintenance,
training, self-maintenance support, repair, general services, remote
computer services, unloading, programming, Software maintenance,
technical consultation, Documentation preparation, or any other
services specified in this Agreement or in an Order.
"SOFTWARE" means all programs in machine-readable (object code) form
and feature descriptions which are ordered by Buyer pursuant hereto.
Software includes Custom Software and Licensed Software, including any
associated program, programming aid, routine, subroutine translation,
compiler, diagnostic routine, control software and firmware and third
party Software included in or finished by Seller.
"SPECIFICATIONS" means (1) Seller's proposals, (2) Seller'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 developer's
specifications (if Seller is not the Product manufacturer or developer)
and (4) any other specifications or Technical Requirements for the
Products or Services which are attached to or referenced in and made a
part of the applicable Order.
"SYSTEM" means the collection or aggregation of Products designed to
function or operate, or represented by Seller as being capable of
functioning, as an entity. A System may be offered by Seller or any
other source and may include products offered by other vendors.
"SYSTEM CHANGE REQUEST" means a Buyer document requesting modifications
to Software licensed hereunder.
"TECHNICAL REQUIREMENTS" means those feature, function, operational,
administrative, maintenance and support requirements as defined herein
for a given technology which are provided by Buyer to Seller in
accordance with this Agreement.
"TECHNOLOGY TEST" means hands-on, laboratory oriented technical review
and analysis by Buyer (usually performed prior to first application in
Buyer's network) of Seller's Product based on specific performance,
operational, protocol, and environmental criteria for potential
certification as an Approved for Use technology for deployment into
Buyer's network. Such Technology Test is a major component of Buyer's
Approval for Use process as defined above.
"TELCORDIA TECHNOLOGIES (TELCORDIA)" - In 1999 Bellcore renamed the
organization, Telcordia Technologies (Telcordia). For the purposes of
this Agreement all currently called Bellcore terms will be referenced
by the new name "Telcordia".
"TERMINATION" means the occurrence by which either party, pursuant to
the provisions or powers of this Agreement or laws and regulations,
puts an end to this Agreement and/or Orders placed under this Agreement
other than for breach. On "Termination" all obligations which are still
executory on both sides are discharged but any right based on prior
breach of performance survives except as otherwise provided herein.
Proprietary Information
The information contained herein is not for use of disclosure outside
SBC Operation, Inc. their affiliates and World Wide Technology, Inc.
except under written agreement
Page 3
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Agreement No. 99006728
"WARRANTY PERIOD" means the period during which a product or Service is
covered by Seller's/OEM's warranties [*Confidential treatment will be
requested].
3.0 GENERAL TERMS AND CONDITIONS
3.1 Agreement
This Agreement sets forth the terms and conditions under which Seller's
Products and Services will be purchased by Buyer. This Agreement shall
govern all Orders, acknowledgments, invoices and other information
electronically and non-electronically transmitted during the term of
this Agreement. In the event of any conflict between the Provisions of
this Agreement and any Orders, the provisions of this Agreement shall
prevail. The parties may modify this Agreement when an authorized
representative of each party signs such modifications. Exhibits
[*Confidential treatment will be requested] B, which are attached
hereby, are incorporated by this reference.
3.2 Term of Agreement
This Agreement shall become retroactively effective. The effective date
is May 1, 1999 until December 31, 2001, unless sooner Terminated or
Canceled as provided herein. Thereafter, the Agreement will be
automatically renewed for successive one (1) year terms, unless either
party has provided the other party with notice of termination, in
accordance with Section 3.3(a). The amendment, expiration, Termination
or Cancellation of this Agreement shall not affect the obligations of
the parties under any Order previously issued under this Agreement, and
the terms and conditions of this Agreement shall continue to apply to
such Order as if this Agreement had not been amended, expired,
Terminated or Canceled.
3.3 Termination And Cancellation
A. Termination and Cancellation of Agreement
Buyer may Terminate this Agreement in whole or in part at any
time by giving Seller at least thirty (30) days' prior written
notice. Upon Termination, Buyer agrees to pay Seller all
amounts due for Products or Services provided by Seller under
this Agreement up to and including the effective date of
Termination, which payment will constitute a full and complete
discharge of Buyer's obligations to Seller hereunder.
In accordance with applicable laws and regulations, Buyer may
Cancel this Agreement by notice, in writing, in the event that
Seller (i) admits insolvency, (ii) makes an assignment for the
benefit of creditors, (iii) is unable to pay debts as they
mature, or (iv) has a trustee or receiver appointed over all
or any substantial part of its assets. Seller shall provide
Buyer with status reports on the financial viability of
Seller. Providing a copy of an Annual Income Statement and
Balance Sheet shall suffice to fulfill this requirement.
B. Cancellation and Termination of Orders
1. Cancellation
If Buyer cancels any Orders or rejects any Products
pursuant to any provision of this Agreement or
applicable Laws and Regulations, Seller shall, at
Buyer's request, but at Seller's expense, promptly
remove the affected Products from Buyer's site,
restore Buyer's site to its original condition,
refund to Buyer any amounts previously paid by Buyer
for such Products and reimburse Buyer for any costs
Buyer occurred to remove and return such Products.
Upon reimbursement and refund, title to any such
Products which had previously passed to Buyer shall
revert to Seller.
2. Termination
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Agreement No. 99006728
Products/Services: Buyer may at any time Terminate
any Order in whole or in part upon written notice to
Seller. In such event, Seller shall be entitled to
reasonable Termination charges consisting of its
actual and direct costs incurred to provide the
Products and Services ordered by Buyer but no more
than a percentage of the work performed or Products
delivered prior to Termination, minus salvage or
resale value of the Terminated Order. If requested,
Seller agrees to substantiate such costs with proof
satisfactory to Buyer. In no event shall the
Termination charges on any Order hereunder exceed the
Order price.
No Termination charges shall apply to Products not
specially manufactured for Buyer pursuant to any
Order which is Terminated at least thirty (30) days
prior to the required delivery date. Buyer shall not
be responsible for any work performed nor for any
costs incurred by Seller, Seller's sellers, or
Seller's subcontractors after Buyer has provided
notice of Termination. After the receipt of Buyer's
payment for such Terminated Services, Seller shall
deliver the physical embodiments, if any, of the
items charged to and paid by Buyer. The foregoing
Termination charges state the entire liability of
Buyer for Termination for convenience by Buyer of any
Order hereunder.
C. Partial Cancellation and Termination
Where a provision of this Agreement or applicable Laws and
Regulations permits Buyer to Terminate or Cancel an Order,
such Termination or Cancellation may, at Buyer's option, be
either complete or partial. In the case of a partial
Termination or Cancellation Buyer may, at its option, accept a
portion of the Products or Services covered by an Order and
pay Seller for such Products or Services at the unit prices
set forth in such Order. The right to Cancel an Order shall
also include the right to Cancel any other related Order.
D. Cancellation for Default
If Seller is in material default of any of its obligations
under this Agreement or applicable Orders and such default
continues for ten (10) days after written notice thereof is
given by Buyer, then in addition to all other rights and
remedies, at law or in equity, Buyer may Cancel this Agreement
and/or any Order which may be affected by such default without
any obligation or liability on the part of Buyer whatsoever.
Notwithstanding this paragraph D, additional provisions for
Cancellation of Orders hereunder are set forth in this
Agreement.
Buyer shall have the right to retain or return any Product
already received and accepted; provided, however, if Buyer
elects to return any Product, Seller shall reimburse Buyer the
cost of shipping any returned Product and amounts, if any,
previously paid by Buyer for such Product. Seller shall bear
all expenses for removal and return of such Product.
3.4 Choice of Law
The following supersedes the General Agreement No. 98005906, section
entitled "Governing Law", page 7:
With respect to PACIFIC, this Agreement and performance hereunder shall
be governed by the laws of the state of California. With respect to
SWBT, this Agreement and performance hereunder shall be governed by the
laws of the state of Missouri. With respect to an Affiliate, other than
PACIFIC or SWBT, this Agreement and performance hereunder shall be
governed by the laws of the state in which such affiliate has its
principal place of business.
Proprietary Information
The information contained herein is not for use of disclosure outside
SBC Operation, Inc. their affiliates and World Wide Technology, Inc.
except under written agreement
Page 5
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Agreement No. 99006728
This Agreement shall be considered completed, entered into, and
executed in California on behalf of PACIFIC, in Missouri on behalf of
SWBT, and with respect to an Affiliate other than PACIFIC or SWBT, in
the state in which the Affiliate has its principal place of business."
3.5 Cumulative Remedies
Any rights of cancellation, termination, liquidated damages or other
remedies prescribed in this Agreement are cumulative and are not
exclusive of any other remedies to which the injured party may be
entitled, including but not limited to, the remedies of specific
performance and cover; however, neither party shall retain the benefit
of inconsistent remedies.
3.6 Dispute Resolution
Resolution of all disputes arising out of or in connection with this
Agreement shall be in accordance with the following:
A. The parties will attempt in good faith to promptly resolve any
controversy or claim arising out of or relating to this
Agreement through negotiations between executives of the
parties, before resorting to other remedies available to them.
B. If a controversy to claim should arise, the first level of
escalation shall be Seller's designated Account Manager and
Buyer's Contract Manager with escalation to intermediate and
executive level management as appropriate and mutually agreed.
Either Seller or Buyer may request the other to meet within
fourteen (14) days at Buyer's location.
C. If the matter has not been resolved within twenty-one (21)
days of their first meeting, the designated representatives
shall refer the matter to senior executives, who shall have
full authority to settle the dispute. Thereupon, the
representatives shall promptly prepare and exchange memoranda
stating the issues in dispute and their positions, summarizing
the negotiations which have taken place, and attaching
relevant Documents. The senior executives will meet for
negotiations within fourteen (14) days of the end of the
twenty-one (21) day period referred to above, at a mutually
agreed time.
D. The first meeting shall be held at the offices of the party
receiving the request to meet. If more than one meeting is
held, the meetings shall be held in rotation at the offices of
Seller and Buyer. All meetings will be held at a location
mutually agreed upon by the parties.
E. If the matter has not been resolved pursuant to the aforesaid
procedures within sixty (60) days of the commencement of such
procedure (which period may be extended by mutual Agreement),
the controversy shall be submitted to and settled by
arbitration with a panel of three (3) arbitrators, of whom
each party shall appoint one (1) with the third arbitrator
selected by the two (2) so chosen. The controversy shall be
settled in accordance with the rules and regulations of the
Center of Public Resources Guide For Resolving Disputes. Both
parties agree that the arbitration award may be enforced by a
court of competent jurisdiction and that the costs of such
arbitration shall be divided equally. The arbitration shall be
held in San Francisco, California (or as mutually agreed) and
shall be conducted on a confidential basis. The arbitrator's
award shall be supported by law and substantial evidence.
*Confidential treatment requested
Proprietary Information
The information contained herein is not for use of disclosure outside
SBC Operation, Inc. their affiliates and World Wide Technology, Inc.
except under written agreement
Page 6
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Agreement No. 99006728
3.8 Liens Prohibited
All Services furnished to Buyer by Seller hereunder shall be free from
any claims, third party liens or encumbrances. Should Seller as a
general contractor of Services subcontract such Service delivery to
subcontractors that have mechanics lien rights under applicable law,
Buyer may require satisfactory proof that all parties furnishing labor
and/or materials for the Services have been paid before making payment
to Seller.
3.9 Title and Risk Of Loss
The following supersedes the General Agreement No. 98005906, section
entitled "Title and Risk of Loss", page 19.
A. TITLE
Title to Equipment purchased hereunder will vest in Buyer when
the Equipment has been delivered and accepted at the
destination specified in the applicable Order. If this
Agreement calls for additional Services such as unloading,
installation or the like to be performed after delivery,
Seller will retain risk of loss to the Equipment until the
additional Services have been performed to Buyer's
satisfaction. Title to Software will remain in Seller. Buyer
will have the right to make a reasonable number of copies of
the Software for use as authorized by OEM.
B. RISK OF LOSS
Seller shall bear the risk of loss of or damages to any
Product until delivery of the Product at the destination
specified in the applicable Order and acceptance by Buyer. In
the event that additional Services such as installation,
unloading or the like, are to be performed by Seller, the risk
of loss shall pass to Buyer after such additional Services
have been performed and the Product has been accepted by
Buyer. With respect to any loss or damage which occurs while
Seller has the risk of loss, Buyer shall notify Seller
promptly of any claim and shall cooperate with Seller to
facilitate making and settling any such claim.
After such delivery and acceptance, Buyer shall bear the risk
of loss of or damage to such Product, except to the extent
that any loss or damage arises out of or results from the
negligence or willful misconduct of Seller or its agents or
contractors.
3.10 Order of Precedence
In the event of any conflict or inconsistency between any provisions of
this Agreement 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 Agreement will not be
deemed to be waived, amended or modified.
4.0 COMPLIANCE
4.1 Changes Required to Meet Codes, Laws & Regulations
Seller shall, at no additional charge, make any changes to the
Products, which are necessary to meet codes, laws or regulations which
are in effect on the date of acceptance of such Products. If such
changes are proposed on such date and subsequently become effective,
Seller shall make such changes at a charge not to exceed the cost of
labor and materials. Seller's obligations under this clause shall
expire ten (10) years after acceptance of the Products in question.
Proprietary Information
The information contained herein is not for use of disclosure outside
SBC Operation, Inc. their affiliates and World Wide Technology, Inc.
except under written agreement
Page 7
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Agreement No. 99006728
4.2 No Third Party Beneficiaries
Except as otherwise provided in this Agreement, this Agreement is for
the benefit of Buyer and Seller and not for any other person or entity.
4.3 Recyclable Material
If requested by Buyer, Seller will identify recyclable Products by
labeling or watermarking such Products in a mutually agreed upon
manner.
4.4 Reliability
Seller hereby agrees that OEM's Products furnished hereunder by Seller
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
Quality Program Specification (QPS) 82.040 Issue 4 and 92.031
Issue 2.
Seller further agrees that it will, at no charge, provide Buyer or its
representative ("Buyer's Agent"), the accessibility and assistance
necessary for Buyer or Buyer's Agent to verify that Product purchased
hereunder satisfies the requirements specified in the clause entitled
"QUALITY ASSURANCE."
Nothing contained herein will affect Buyer's rights hereunder, under
any warranty, or under any other provisions of this Agreement.
5.0 LIABILITY
5.1 Guaranty
Seller shall use commercially reasonable efforts to ensure to Buyer (1)
the full and faithful performance by each subcontractor of each and
every covenant, duty and obligation assumed by the subcontractor with
respect to the Services and (2) the payment of each and every sum due
or to become due to the subcontractor in connection with the Services.
The above guaranty is applicable to all changes, modifications and
extensions respecting this Agreement as the parties may agree.
6.0 STANDARDS
6.1 Product Change Notices
Seller agrees to notify Buyer, in advance, of any known change(s) to be
made in the OEM's Products furnished in accordance with the
Specifications, Software Related Documentation and/or Documentation
that would impact upon either reliability, safety, or the form, fit or
function of the Product.
It will be OEM's responsibility to furnish Product Change Notices
("PCN") for all Products provided hereunder in accordance with TP
76305, January 1, 1997, SWB Requirements for Product Change Notices for
SWBT or GR-209-CORE, Issue 1, August 1994, "Product Change Notices" for
PACIFIC, as may be amended at any time, and any successor document.
Proprietary Information
The information contained herein is not for use of disclosure outside
SBC Operation, Inc. their affiliates and World Wide Technology, Inc.
except under written agreement
Page 8
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Agreement No. 99006728
In order for Buyer to review Product 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 Product change proposed by the OEM will be by
mutual agreement between OEM and Buyer.
For changes classified as "A" or "AC", Seller and OEM agree to promptly
modify or replace, at no charge, all affected Products provided
hereunder and the Documentation relevant thereto. Buyer will have the
right to invoice Seller for any labor expenses incurred by Buyer
attributable to the replacement of such Products.
For changes classified as "B" or "D", Seller and OEM agree to notify
Buyer of the exact nature thereof and discuss with Buyer details
regarding the proposed implementation procedure for affected Products
which is being or will be manufactured. Buyer will determine, at its
option, if Products previously shipped will be modified or replaced.
Should such modification or replacement be deemed necessary, Seller and
OEM will arrange therefor at prices and schedules to be mutually agreed
upon with Buyer prior to implementation. Relevant Documentation for
such affected Products will also have provided by Seller and OEM at no
charge.
Any revisions to TP 76305, will become effective and thereafter
applicable under this Agreement thirty (30) days after such revision is
released by Buyer except for those particular revisions to which the
Seller and OEM specifically objects within twenty-one (21) days of
receipt, providing therewith an explanation for each such objection.
Upon each such objection, Buyer, Seller and OEM will attempt to
negotiate a resolution to any such objections. Notwithstanding the
foregoing, any revision made to address situations potentially harmful
to Buyer's network, the Premises, to address Premises security issues,
to comply with statutory and/or regulatory requirements, or to Buyer's
Emergency Operating Procedures will become effective and applicable
immediately notwithstanding any objection by the Seller and OEM.
In the event that Buyer, Seller and OEM fail to reach agreement on any
change in Products proposed by OEM, Buyer will have the right without
penalty to terminate this Agreement and any or all Orders for Products
affected by such change(s) that may have been issued by Buyer.
6.2 Use of Published Specifications
Seller shall, at no charge, provide Buyer with copies of Sellers/OEMs
published Specifications, user instructions, manuals and other training
materials pertaining to the Products. Buyer shall have the right to
reproduce any or all of such materials as necessary for Buyer's use of
such Products.
6.3 Buyer's Technical Information
Seller agrees to comply, where applicable with the following technical
requirements documents of Buyer:
o GR-137-CORE, Issue 1, June 1, 1994. "Generic Requirements for
Central Office Cable"
o GR-833 CORE, Issue 5, December 1992, Revision 1, April 1993,
Revision 2, June 1994. "Operations Application Messages -
Network Maintenance: Network Elements and Transport
Surveillance Messages".
o GR-1089-CORE, Issue 1, November 1994. "Electromagnetic
Compatibility and Electrical Safety - Generic Criteria for
Network Telecommunications Equipment"
o GR-1421-CORE, Issue 1, 7-1-94. "Generic Requirements for
ESD-Protective Circuit Pack Containers"
o GR-1502-CORE, Issue 1, June 1994. "Central Office Environment
Detail Engineering Generic Requirements"
o SR-3158 NEBS 2000 Physical Protection Guidelines for
Operations Systems Hardware
Proprietary Information
The information contained herein is not for use of disclosure outside
SBC Operation, Inc. their affiliates and World Wide Technology, Inc.
except under written agreement
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PB/SWBT Alarm Philosophy, Effective date 4-5-94
o PB/SWBT Alarm Policy Statement Effective Date June 15, 1994.
o PB/SWBT Practice 790-101-322SW, March 1, 1990. Detail
Engineering Guide Telephone Company Engineered (TCE) Orders
Preparation Instructions
o TP 76300, December 1, 1994. Installation Guidelines
o TP 76310, April 1, 1992. Earthquake Engineering Guidelines
o TR-EOP-000066, Issue 1, February 1987. "Space Planning
Documentation Requirements"
o TR-NWT-000063, Issue 5, September 1993. "Network Equipment
Building Systems General Equipment Requirements (NEBS)"
o TR-NWT-000078, Issue 3, December 1991. "Generic Physical
Design Requirements for Telecommunications Products and
Equipment"
o TR-NWT-000409, Issue 3, July 1993. "Generic Requirements for
Intrabuilding Optical Fiber Cable
o TR-NWT-000840, Issue 1, December 1991. "Supplier Support
Generic Requirements (SSGR)"
o TR-NWT-000513 Generic Requirements for Power Systems
o TR-NWT-000928 Generic Requirements for Fuse Panels used in
Central Offices
6.4 Marking
The following section supersedes the General Agreement No. 98005906,
section entitled "Bar-Coding", page 3:
Seller agrees to xxxx all Product furnished hereunder for
identification purposes with (I) Seller's or OEM's model/serial/issue
number, (ii) the month and year of manufacture, (iii) warranty
expiration date, and (iv) for plug-in equipment, also in accordance
with the current requirements outlined in Technical Publication
GR-185-CORE, Issue 1, Common Language (R) Equipment Coding Processes
and Guidelines, TR-795-25540-8402 (Pub. 5002), Issue 1, 1/1/74 Common
Language (R) Identification of Manufacturers of Telecommunications
Products, and TR-STS-000383, Issue 5, 1/1/91 Generic Requirements for
Common Language (R) Barcode Labels. Seller further agrees that it will:
(a) For central office plug-ins, hardwired equipment, tools and
test sets, obtain at Seller's expense applicable Equipment
Catalog Item ("ECI"), Continuing Property Record ("CPR") and
Common Language (R) Equipment Identifier ("CLEI") information
from Xxxx Communications Research, Inc. ("Telcordia") and
provide such information to Buyer on the Order Acknowledgment.
(b) Xxxx all hazardous Products as such in a permanent and
reasonably visible manner by stating, "HAZARDOUS MATERIAL
CONTAINED WITHIN," and identifying the specific hazardous
material.
(c) Add any other identification, which might be requested by
Buyer. Charges, if any, for such additional identification
marking will be as agreed upon by Seller and Buyer.
7.0 ORDERING
7.1 Order Procedure
The following section supersedes the General Agreement No. 98005906,
section entitled "Purchase Orders", page 15:
Proprietary Information
The information contained herein is not for use of disclosure outside
SBC Operation, Inc. their affiliates and World Wide Technology, Inc.
except under written agreement
Page 10
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Agreement No. 99006728
Orders submitted by Buyer against this Agreement will be placed on
Purchase Order Form SW-6531 for SWBT and Purchase Order Form P-2 for
PACIFIC. The typed or written provisions on Buyer's Orders will be
incorporated into this Agreement, but printed provisions on the reverse
side thereof will be deemed deleted.
Each Order shall be numbered, shall indicate the ordering party, and
may include at least the following items whenever such item is
applicable to the Products and Services covered by such Order:
(1) The date of the Order.
(2) The incorporation of this Contract and Agreement by reference
(3) A complete list of the Products and Services covered by the
Order, specifying, attaching or referencing the quantity,
model number, program name or product identification number,
description and Specifications for each.
(4) The price of each Product and Service, including discounts (if
any), and any additional charges.
(5) The address to which Seller's invoice shall be sent.
(6) Shipping instructions.
(7) The destination to which the Products will be delivered and
the date and time for scheduled delivery.
(8) Any special terms and conditions.
Order(s) placed hereunder shall be deemed accepted by Seller unless
written notice to the contrary is received by Buyer within ten (10)
days from Seller's receipt of such Order. Such notice will be given to
Buyer in care of the address indicated on the acknowledgment copy of
the Order. Any additional or different terms in any Seller quotation,
acknowledgment, invoice or other communication to Buyer, whether or not
such terms materially alter an Order, shall be deemed objected to by
Buyer without need of further notice of objection and shall be of no
effect and not in any circumstance binding upon Buyer unless expressly
accepted by Buyer in writing.
7.2 Order Acknowledgment
The following section is in addition to the General Agreement No.
98005906, section entitled "Order Acknowledgment", page 15.
Seller agrees to provide to Buyer an Order Acknowledgment ("OA") with
respect to each Order. In addition, Seller agrees to include Software
Right to Use Fees, if any, on the OA.
* Confidential treatment will be requested
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Agreement No. 99006728
[*Confidential treatment requested].
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8.4 Changes and Suspensions
Buyer may, by notice to Seller at any time before complete delivery
is made under any Order, make changes within the general scope of such
Order, including changes to quantities, drawings, designs or
specifications. In addition, Buyer may, by notice to Seller, suspend,
in whole or in part, the delivery of Products and the performance of
Services. If Buyer directs any such change or suspension, the parties
shall agree upon any necessary adjustments in prices or dates and Buyer
shall issue a revised Order reflecting such adjustments.
Seller may not, without Buyer's prior written consent, make any changes
whatsoever with respect to the Products or Services specified in any
Order.
9.0 DELIVERY
9.1 Delivery and Performance
All dates for delivery of Products and performance of Services are firm
and time is of the essence. Seller's delivery interval is two to seven
(2-7) weeks from receipt of Buyer's Order to Delivery Date. Upon
receipt of each Order, Seller shall deliver the Products to Buyer's
designated location and perform all of the Services on or before the
date(s) specified, failing which Buyer may, in addition to all other
remedies provided by law or equity or this Agreement (1) Cancel such
Order, or (2) extend such delivery date(s) to a later date(s), subject
however, to Cancellation if delivery is not made by such extended
date(s).
If an Order is Canceled pursuant to the paragraph above, Buyer shall
have the right to retain or return any or all Products received under
such Order. Seller shall reimburse Buyer the costs of shipping the
returned Products and amounts, if any, previously paid by Buyer. Buyer
shall pay for any Products retained at the prices set forth herein, and
quantity discounts, if any, shall be applied on the basis of the
quantity specified in the Order.
9.2 Shipping and Packing
Seller agrees to:
(a) Ship Orders complete unless instructed otherwise by Buyer.
(b) Ship to the destination designated in the applicable Order in
accordance with any specified routing instructions.
(c) Package, xxxx and label Products in accordance with Buyer's
Specification No. 76295. Adequate protective packaging will be
furnished by Seller at no additional charge.
(d) Enclose a packing slip with each shipment and, when more than
one (1) package is shipped, clearly identify the one
containing the packing slip.
(e) Xxxx Buyer's Order number, item sequence numbers, and item
identification numbers and descriptions on all packages,
subordinate documents and shipping papers.
(f) Render invoices in duplicate or as otherwise specified by the
applicable Order, showing Buyer's Order number, item sequence
numbers, item identification numbers and descriptions, through
routing and weight.
(g) Render separate invoices for each shipment or Order.
(h) Mail Bills of Lading, if applicable, shipping notices and
copies of transportation bills with Seller's invoices to
Buyer's address indicated on the applicable Order.
(i) List basic unit and part number or Common Language Equipment
Identifier ("CLEI") code numbers and Continuing Property
Record ("CPR") numbers for each central office product
included on an invoice.
(j) Limit billing on repair orders to one (1) invoice per repair
order.
(k) Identify software right-to-use fees on the invoice as either
"application" or "operational".
Proprietary Information
The information contained herein is not for use of disclosure outside
SBC Operation, Inc. their affiliates and World Wide Technology, Inc.
except under written agreement
Page 13
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For shipments made to Seller's Material Distribution Center ("MDC") in
Lancaster, Texas, Seller further agrees to ship Products on pallets
with dimension of 42" by 42" and stack Equipment thereon no higher than
48".
Adequate protective packaging will be furnished by Seller at no
additional charge. If prepayment of transportation charges is
authorized, Seller will include the transportation charges for the
Products from the F.O.B. point to the designated destination as a
separate charge on Seller's invoice therefor.
Shipping and routing instructions may be altered by mutual agreement of
the parties without written notice. C.O.D. shipments will not be
accepted. Unless expressly stated to the contrary, Seller's charges for
transportation Services including, but not limited to, routing,
transporting, hauling, hoisting, storage and detention, are not
included in any prices furnished for Products. Seller's prices include
its standard packing for domestic shipments. All Products purchased,
repaired or replaced and/or disposed of hereunder shall be packed and
marked by Seller, at no additional charge to Buyer, to comply with or
exceed (1) the standards of the National Motor Freight Traffic
Associations Incorporated as published in the National Motor Freight
Classification #100 ("Standards"), as may subsequently be amended, or
(2) the Specifications set forth in the appendix, if any, entitled
"Packaging, Packing and Container Marking Requirements". If the
Products purchased, repaired, replaced, or disposed of consist of or
contain hazardous materials or hazardous wastes, Seller shall package,
label, xxxx, and transport same in accordance with applicable laws and
regulations in addition to the Standards. In the event of any conflict
or inconsistency between the Standards and such laws and regulations,
such laws and regulations shall prevail. If Buyer requests special
packaging charges, if any, shall be agreed upon by the parties.
10.0 PERFORMANCE
10.1 Records And Audits
This following section supersedes the General Agreement No. 98005906,
section entitled "Records and Audits", page 17:
In order to enable Buyer to comply with the requirements of Parts 32
and 64 of the Rules of the Federal Communications Commission pertaining
to Affiliate transactions and any similar state or federal
requirements, Seller agrees, to:
(a) Maintain and provide to Buyer upon request complete and accurate
records related to all amounts billable to and payments made by
Buyer hereunder in accordance with generally accepted accounting
principles.
(b) Notify Buyer prior to destroying or otherwise permanently
disposing of such records and, at Buyer's option, transfer such
records to Buyer.
(c) Provide reasonable supporting documentation to Buyer within
thirty (30) calendar days after receipt of written notification
from Buyer of a dispute as to the amount of any invoice.
Seller further agrees that Buyer will have the right through its
accredited representatives to inspect, copy, and audit, during normal
business hours, the charges invoiced to Buyer under this clause. Should
Buyer request an inspection or audit, Seller will make available the
pertinent records and files. This right to inspect, copy, and audit
will not be limited to validating the
Proprietary Information
The information contained herein is not for use of disclosure outside
SBC Operation, Inc. their affiliates and World Wide Technology, Inc.
except under written agreement
Page 14
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Agreement No. 99006728
accuracy of resources utilized by Seller and associated charges
invoiced to Buyer but includes, without limitation, the right to
inspect and audit:
(i) The method for determining cost data provided to Buyer.
(ii) Any cost or pricing data, records or other information
pertaining to similar sales to other, Non-Affiliated buyers.
(iii) Seller's accounting policies or practices.
Seller will include any of the aforementioned information on its
invoices and other billing documents as Buyer may reasonably require.
Unless otherwise provided in this Agreement, Seller shall retain such
records for a period of three (3) years from the date of final payment
under the Order to which such records relate. To the extent that such
records may be relevant in determining if Seller is complying with its
obligations under the applicable Order, Buyer and its authorized
representatives shall have access to such records for inspection,
copying, and audit during normal business hours.
10.2 Monthly Order And Shipment Reports
During the term hereof, Seller agrees to render monthly shipment
reports on or before the fifth (5) working day of the succeeding month.
The report shall in a form that indicates the total dollars paid to
Seller by Buyer for each applicable Product for each month and any
additional information required by Buyer. Completed forms will be sent
to Buyer's address as set forth in the clause herein entitled
"NOTICES."
In addition, Seller agrees to render quarterly sales reports on or
before the last working day of April, July, October and January. The
report shall indicate the total year to date sales orders, by quarters,
paid to Seller by Buyer. Specifics shall include Vendor Name(s),
Product Description(s), Vendor Part Number(s), Product Price,
Quantities, Purchasing Affiliate (PB, SWBT, SNET, etc.).
10.3 Action Register
Buyer and Seller acknowledge that the success of Buyer's development of
Seller's Products is contingent upon timely and successful resolution
of issues identified in the Action Registers. Buyer reserves the right
to assign items to Action Registers, which are living documents, with
the understanding that Action Registers contain issues pertaining to
conformance of Products with Seller's Specifications and Buyer's
requirements. Seller agrees to provide timely service and resolution,
including all necessary steps to address critical and high Action
Register Items, to Buyer on those items identified in the Action
Registers (or such successor entity or issues forum as may be
maintained by Buyer). Seller further agrees to take. In pursuing the
resolution of problems or issues identified in the Action Register, and
in the selling of any Products to Buyer, Seller agrees to perform
testing consistent with the conditions typically found in Buyer's
Production environment. The current version of the Action Register is
attached as Exhibit B.
10.4 Work Hereunder
It is understood that visits by representatives of Seller or its
suppliers for inspection, adjustment or other similar purposes in
connection with Products purchased hereunder will for all purposes
Proprietary Information
The information contained herein is not for use of disclosure outside
SBC Operation, Inc. their affiliates and World Wide Technology, Inc.
except under written agreement
Page 15
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Agreement No. 99006728
be deemed "work hereunder" and will be at no charge to Buyer unless
otherwise agreed in writing with Buyer.
10.5 Work Stoppage
Each party hereto agrees to notify the other party hereto at least
sixty (60) days prior to the expiration of any labor agreement. For any
actual work stoppage, notification will be made within the first twelve
(12) hours after such stoppage has occurred.
For an emergency request by Buyer during any work stoppage, Seller will
provide on-site technical support of Products and/or Services provided
hereunder, including but not limited to: installation, repair,
calibration, removal and hauling and hoisting. Cost will not exceed
current Agreement prices or, where no pricing exists, Seller's/OEM's
current published prices. Should Seller not be able to provide on-site
emergency service during a work stoppage, Seller will release
sufficient information to a third party through a Non-Disclosure
Agreement approved by Buyer to allow the requested Products and/or
Services to be provided in the same manner as though Seller has
provided same. Seller will receive Buyer's written approval prior to
the release of any such information.
10.6 Tools and Equipment
Unless otherwise specifically provided herein, Seller agrees to furnish
all labor, tools and equipment (the "Tools") required for the
performance of this Agreement. Upon completion of the Services, Seller
agrees to promptly remove all tools, equipment, materials and debris
from Buyer's premises. Should Seller use any Tools owned or rented by
Buyer, Seller further agrees:
(a) To defend, indemnify and hold Buyer harmless from and against
any and all loss, liability, damage, expense, claim, demand or
suit (including attorney's fees and court costs) of any kind
and nature whatsoever (including but not limited to claims
resulting from injuries or death to persons or damage to
property) in any way arising out of or resulting from Seller's
maintenance, possession, operation, use, storage or movement
of the Tools or any accident occurring in connection
therewith.
(b) To accept the Tools "as is, where is" and that Buyer will have
no responsibility for the condition or state of repair
thereof.
(c) Not to remove the Tools from Buyer's premises and to return
them to Buyer upon completion of use, or at such earlier time
as Buyer may request, in the same condition as when received
by Seller, reasonable wear and tear excepted.
All use of Tools by Seller will be subject to the provisions of the
Section entitled LIABILITY, and Seller agrees to maintain at all times
adequate insurance acceptable to Buyer to cover its indemnification
obligations hereunder and provide Buyer, upon request, with evidence
thereof.
10.7 Use of Buyer's Systems
Buyer reserves the right to determine how Seller's personnel provided
to perform Services hereunder will access Buyer's network remotely and
locally.
Seller agrees and promises to use the applicable Buyer computer systems
on which the Services are provided in a professional and effective
manner, and only for the purposes of the performance of this Agreement.
Any other intentional use or misuse of such computer systems will
constitute a breach of this Agreement.
Seller acknowledges that any person Seller selects to work under this
Agreement will be expected to fully comply with the known requirements,
conditions, or restrictions applicable to the use of Buyer's computers
or telephone network or applicable to access to Buyer's database,
network or information systems. Seller will indemnify and hold Buyer
harmless for any failure (whether
Proprietary Information
The information contained herein is not for use of disclosure outside
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except under written agreement
Page 16
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Agreement No. 99006728
negligent or intentional) to meet these known requirements, conditions,
or restrictions by any of these persons. Seller further agrees to
cooperate fully in any Buyer inquiry into alleged violations by
Seller's personnel with respect to Buyer's computers, property or
information.
10.8 Damages to Property and Live Equipment
A. Buyer shall notify Seller, of any damage to or theft of
tangible property, real or personal, caused directly or
indirectly by Seller and of circumstances, which it believes,
could give rise to such damage. Seller shall take precautions
and reasonable and necessary measures to prevent further
damage. Seller shall indemnify Buyer for such damage or loss
in accordance with the Section entitled INDEMNIFICATION.
Seller shall replace or temporarily repair such property. At
Buyer's or a third party owner's option and direction, Seller
shall restore or replace Buyer's or other's property to its
original condition, place such property in operational
condition or bear the cost of such restoration or replacement.
B. The continuity of Buyer's service is of paramount importance
and Seller shall at all times exercise the greatest care to
prevent damage to Buyer's property and shall not use any
materials, equipment or methods which, in the judgment of
Buyer, might endanger or interfere with Buyer's service to its
customers.
C. In the event of damage to "live" equipment caused by, or as a
result of Seller's negligent or reckless acts or omissions,
except to the extent that the specific act or omission
producing damage was expressly directed by Buyer, Seller shall
be liable in accordance with the provisions of the Section
entitled INDEMNIFICATION.
10.9 Inspection
When requested by Buyer, Seller agrees to (a) notify Buyer or Buyer's
agent when Equipment is ready for inspection, (b) give Buyer 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 Agreement is subject to Buyer's inspection and
acceptance after delivery. It is mutually agreed that Buyer or Buyer's
agent may develop inspection instructions which will be made a part of
this Agreement at a later date by written agreement of the parties.
Inspection or failure to inspect on any occasion will not affect
Buyer's rights under warranty or other provisions of this Agreement.
10.10 Installation Services
Seller agrees to install, at no additional charge to Buyer, all
Products ordered hereunder, including all necessary cabling, connection
with Buyer-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, which demonstrates that the Equipment meets minimum
design capabilities. Seller will provide Buyer 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 Buyer's Order.
Installation of the Software by Buyer or Seller will consist of a
version that will perform in accordance with the corresponding
published performance Specifications and will include a demonstration
of the Software's features and functions using Seller's standard
demonstration procedure of the installed Software on Buyer's computer
system.
Proprietary Information
The information contained herein is not for use of disclosure outside
SBC Operation, Inc. their affiliates and World Wide Technology, Inc.
except under written agreement
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The purpose of the installation demonstration will be to confirm that
all Software ordered has been entered into Buyer's program library and
that such Software functions in accordance with Seller's published
performance Specifications associated therewith.
The demonstration will be considered successfully completed when the
Software output results match the standard set of results provided by
Seller.
If Seller installs the Software, Seller will certify in writing to
Buyer, at the successful completion of the installation demonstration,
that the Software has been properly installed and performs in
accordance with Seller's published performance Specifications
applicable thereto. If Buyer installs same, Seller agrees to provide
complete installation instructions with the Software and telephone
consultation during Seller's business hours, on the proper installation
thereof at no additional charge to Buyer.
10.11 Installation Performance
Buyer retains the right to determine the installation vendor for
Products. If Installation of Products purchased hereunder is to be
performed by Seller, the applicable Order(s) shall so indicate. If
Seller or Seller's subcontractors are chosen to install the Products,
Installation shall be performed in accordance with TP76300
"Southwestern Xxxx Telephone Installation Guide", dated September 1996
for SWBT or with "PACIFIC XXXX/NEVADA XXXX CENTRAL OFFICE EQUIPMENT
INSTALLATION AND JOB ACCEPTANCE HANDBOOK" dated November 1994 for
PACIFIC ("Installation Handbook"), or Telcordia Publication
TR-NWT-001275" CO Environment Installation/Removal Generic
Requirements" for Affiliate installations and as subsequently amended
from time to time, which are incorporated herein by this reference. In
addition, Seller agrees to adhere to Seller's own installation
standards to the extent such standards do not reduce or detract from
Buyer's installation requirements or impair or impact the design or
operation of the Products.
In order to install Products in SWBT's market areas, Seller must obtain
prior approval from SWBT's local Vendor Certification Committees. In
order to install Products in PACIFIC's market areas, Seller must be
certified by PACIFIC'S Installation Vendor (IVEN) process as a
qualified installation vendor before starting any Installation
activity. Seller's intended use of any subcontractor or agent to
install Products will likewise be subject to prior approval, which
approval will not be unreasonably withheld.
Seller agrees to pay certain liquidated damages for failure to (1) meet
scheduled completion dates, and (2) perform central office equipment
installation functions as requested by Buyer on the Order and in
accordance with Buyer's specification.
The amount of such damages shall be in accordance with the following
schedule:
1. Installation Requirements
o Seller shall perform Central Office Equipment Installation
functions as requested by Buyer on the Order and in accordance
with Buyer's specification. Should Seller's performance or
lack thereof result in an out of service condition, the
following charges will apply: Out of Service Condition -
Seller will forfeit twenty percent (20%) of installation fee.
o An out of service condition will require a positive reporting
of the incident to the SWBT Area Manager - Maintenance
Engineering, PACIFIC Maintenance Engineer, the local
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SBC Operation, Inc. their affiliates and World Wide Technology, Inc.
except under written agreement
Page 18
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Agreement No. 99006728
Network Operations supervisor for SWBT and PACIFIC and Buyer's
representative (as described in Buyer's Installation
Handbooks).
2. Completion Dates
o Installation Services shall be completed in accordance with
Buyer's schedule(s) and/or mutually negotiated completion
schedule(s). Seller will forfeit ten percent (10%) of
installation fee for failure to meet scheduled or mutually
agreed advance service and/or job completion dates.
Seller shall not be liable or responsible for liquidated damages for
any delay caused by (1) Buyer changes, revisions or modifications, or
special requirements of Buyer not communicated to Seller, (2) Buyer
changes in scheduled dates, (3) failure of Buyer to provide any item to
be furnished by Buyer, (4) failure of Buyer to furnish required
order/engineering information prior to Seller's standard engineering
interval, or (5) other reasons attributable to Buyer.
Any liquidated damages for which Seller is liable pursuant to this
clause shall be credited against the invoice for the affected Order,
provided, however, that if the relevant invoice has been paid in full,
the applicable amount for liquidated damages shall be remitted to Buyer
by check.
10.12 Installation/Cutover Assistance
If requested by Buyer, Seller agrees to make available at the
installation site, without charge, a field engineer to render
installation and cutover assistance as required by Buyer for the
initial installation/cutover in each of Buyer's operating areas.
10.13 Acceptance
Buyer reserves the right to accept or reject Products and Services
after the delivery (including installation or other work, if required)
of Products at the location designated in the applicable Order and
after the performance of Services if such Products or Services fail to
meet the applicable Specifications. If, prior to acceptance by Buyer,
any of the Products or Services are found to be not in strict
conformance to this Agreement, including the applicable Order, Buyer
shall have the right (a) to reject the same and cancel any affected
Order(s) or, (b) at its option, (1) in the case of Products, require
that such Products be repaired or replaced promptly at Seller's risk
and expense (including freight charges) and (2) in the case of
Services, require the performance or reperformance of such Services.
Buyer's use of Products for revenue generating purposes shall not
thereby constitute acceptance. Installation of replacement Equipment
will be within the time period mutually agreed upon by the parties in
writing. Buyer may terminate the applicable Order and request the
removal of the Equipment with no charges or penalties. Acceptance of
Products by Buyer shall be without prejudice to Buyer's right to revoke
acceptance pursuant to the Uniform Commercial Code.
Buyer reserves the right to conduct an Acceptance Test of the Products
and Services during the Acceptance Period starting the day after Seller
certifies in writing that the Equipment is ready for Acceptance
Testing, if Seller installs the Equipment, or the day following
completion of installation by Buyer; provided, however, Acceptance
Testing will not begin until Buyer personnel have been trained by OEM
to operate the Equipment. In such excepted case, Acceptance Testing
will begin the business day following completion of the required
training. Testing will be performed to determine whether:
Proprietary Information
The information contained herein is not for use of disclosure outside
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except under written agreement
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associated necessary training required ensuring that technicians
perform quality installations. Seller therefore, agrees, to provide
training on the installation of all Equipment purchased hereunder to
Buyer or any other party reasonably designated by Buyer. Such
installation training shall include, but not be limited to:
1. Any unique requirements for transporting or handling of the
Equipment.
2. The proper order in which the different elements that comprise
the system must be installed and the location of each element.
3. The methods for routing cable and fiber within the system and
up to the cable rack provided by Buyer.
4. The methods for terminating connectors that are unique to the
system.
5. Proper routing and terminating of power cable and connectors.
6. Proper routing and termination of ground cable and connectors.
7. Any unique features in the design of the system that if not
properly installed may adversely affect the operation of the
intelligent network element.
8. The order and proper methods for applying power to the system
when it is initially powered up so it does not interfere with
the operation of any network element already in service. Other
installation requirements are specified in Buyer's
"Installation Handbook".
10.15 Relocation
Upon thirty (30) days' prior written notice from Buyer, Seller agrees
to prepare for relocation and reinstall Equipment purchased hereunder
at any other site at Buyer's expense. The charge will be at no more
than Seller's maintenance rates set forth herein.
11.0 REPAIR AND MAINTENANCE
11.1 Notice of Delays & Liquidated Damages
A. Whenever any actual or potential cause delays or threatens to
delay Seller's performance with respect to delivery, including
the availability of promised features or functionality, in
addition to all other Seller obligations and Buyer remedies,
Seller shall immediately and regularly thereafter, but no less
often than twice-a-month, so notify Buyer in writing. Such
notice shall include all relevant information concerning the
actual or potential cause of the delay and its background.
During the period such actual or potential cause exists,
Seller shall keep Buyer advised of its effect on Seller's
performance and of the measures being taken to remove it. For
purposes of this section, promised feature or functions shall
include Seller's Product Specifications for a promised feature
or function and Seller's written commitments to Buyer for
delivery of a promised feature or function.
B. Seller shall be given twenty (20) business days from the
occurrence of such failure to cure its breach and/or work with
Buyer to develop a plan, which will minimize Buyer's
liability. Although Buyer shall have the final authority to
approve any such plan, Buyer shall not unreasonably delay or
withhold approval of any technically viable plan that provides
a reasonable remedy for Seller's failure to meet the agreed
upon delivery or completion date as specified above.
Seller shall pay to Buyer in total satisfaction of this
provision as liquidated damages and not as a penalty the
lesser of either (i) an amount equal to one percent (1%) of
the price of the Products per day for such delayed Products,
or (ii) one thousand dollars ($1,000), for each day of delay
occurring after the end of the twenty day cure period set
forth in the preceding paragraph until the actual Delivery
Date. Liquidated damages under this section shall in no event
exceed 100% of the dollar volume of the portion of the Order
and regularly thereafter, but no less than twice-a-month, so
notify Buyer in writing. Such notice shall include all
relevant information concerning the actual or potential cause
of the delay and its background. During the period such actual
or potential cause
Proprietary Information
The information contained herein is not for use of disclosure outside
SBC Operation, Inc. their affiliates and World Wide Technology, Inc.
except under written agreement
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exists, Seller shall keep Buyer advised of its effect on
Seller's performance and of the measures being taken to remove
it. For purposes of this section, promised feature or
functions shall include Seller's Product Specifications for a
promised feature or function and Seller's written commitments
to Buyer for delivery of a promised feature or function.
B. Seller shall be given twenty (20) business days from the
occurrence of such failure to cure its breach and/or work with
Buyer to develop a plan, which will minimize Buyer's
liability. Although Buyer shall have the final authority to
approve any such plan, Buyer shall not unreasonably delay or
withhold approval of any technically viable plan that provides
a reasonable remedy for Seller's failure to meet the agreed
upon delivery or completion date as specified above.
Seller shall pay to Buyer in total satisfaction of this
provision as liquidated damages and not as a penalty the
lesser of either (i) an amount equal to one percent (1%) of
the price of the Products per day for such delayed Products,
or (ii) one thousand dollars ($1,000), for each day of delay
occurring after the end of the twenty day cure period set
forth in the preceding paragraph until the actual Delivery
Date. Liquidated damages under this section shall in no event
exceed 100% of the dollar volume of the portion of the Order
which is delayed, or which cannot be deployed because of the
delayed delivery of other parts of the Order. Such amount
shall be paid, at Buyer's election, in the form of either cash
(net 30 days after notice), credit, or a Product credit on a
going-forward basis.
This liquidated damage amount shall not apply where the
lateness was caused by failure of a vendor to fulfill a
contractual obligation to Seller where such failure was beyond
the vendor's reasonable control, such as by Force Majeure, as
defined in this Agreement. Buyer shall give Seller the
flexibility to ship partial order quantities if deployment is
reasonably feasible consistent with Buyer's deployment plans
and personnel availability, in order to minimize liquidated
damages. In addition to the foregoing, Seller shall diligently
use proactive efforts to remedy the shortfall. Such efforts
include, at no additional charge to Buyer, the following: a)
an automatic and immediate allocation of resources to meet the
failed commitment (or anticipated shortfall); b) the provision
of hotlot or expedite status for material which is in short
supply; c) expedited shipment; and, d) the waiving of
lead-time requirements for further orders as necessary to meet
the commitment.
In the event that Seller does not deliver Products including
delivery of promised features, to Buyer or complete
performance of Services on or before such extended Delivery
Date (which shall, unless the parties agree to a shorter
period, be at least thirty (30) business days after the
originally scheduled Delivery Date), Buyer may (1) cancel such
Order or (2) extend the Delivery Date and hereby reserves its
rights as stated above. No payments, progress or otherwise,
made by Buyer to Seller after the scheduled Delivery Date
shall constitute a waiver of liquidated damages, and receipt
of liquidated damages shall be in lieu of consequential and
incidental damages resulting from Seller's breach.
11.2 Limitation of Liability
The following section supersedes the General Agreement No. 98005906,
section entitled "Limitation of Liability", page 12:
Except for either party's obligation under section entitled
INFRINGEMENT INDEMNITY and INDEMNIFICATION, and except as Seller may be
liable for liquidated damages under the
Proprietary Information
The information contained herein is not for use of disclosure outside
SBC Operation, Inc. their affiliates and World Wide Technology, Inc.
except under written agreement
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section entitled NOTICE OF DELAYS AND LIQUIDATED DAMAGES, NEITHER PARTY
SHALL BE LIABLE TO THE OTHER FOR CONSEQUENTIAL, INCIDENTAL OR INDIRECT
DAMAGES (INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS OR OF DATA),
EVEN IF THE PARTIES WERE FULLY APPRISED OF THE FORSEEABILITY OF SUCH
DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, UNDER OR
ARISING OUT OF THIS AGREEMENT.
*Confidential treatment will be requested.
13.0 OTHER
13.1 Patents
No licenses, express or implied, under any patents are granted by Buyer
to Seller under this Agreement.
13.2 Copyrights
Seller agrees that all rights, title and interest in and to all
original works of authorship which Seller produces or composes in
connection with the Services shall be considered works made for hire
and shall belong to the Buyer, including all copyrights thereon, and
the rights to obtain registrations of copyrights thereon throughout the
world. In the event that such works contemplated hereunder as works
made for hire shall not be considered works made for hire, Seller
hereby assigns such Works and all rights, title and interest in them to
Buyer.
13.3 Headings
The article, section and paragraph headings contained in this Agreement
are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
Proprietary Information
The information contained herein is not for use of disclosure outside
SBC Operation, Inc. their affiliates and World Wide Technology, Inc.
except under written agreement
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IN WITNESS WHEREOF, the foregoing Agreement has been executed by authorized
representatives of the parties hereto, in duplicate, as of the dates set forth
below.
Seller Accepted:
World Wide Technology, Inc.
("Seller")
By:
-----------------------------------------
Typed Name:
---------------------------------
Title:
--------------------------------------
Date:
---------------------------------------
Buyer Accepted:
SBC Operations, Inc.
("Buyer")
By: /s/ Xxxxx Xxxxx
-----------------------------------------
Typed Name: Xxxxx Xxxxx
Title: President, SBC Corporate and Administrative Services
Date: 6/29/99
---------------------------------------
Proprietary Information
The information contained herein is not for use of disclosure outside
SBC Operation, Inc. their affiliates and World Wide Technology, Inc.
except under written agreement
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