WIRELESS E9-1-1 AGREEMENT CONTENTS
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Confidential Treatment Request
EXHIBIT 10.9
[ ] Material indicated by this xxxx
has been deleted pursuant to a request
for confidential treatment, and has been filed
separately.
WIRELESS E9-1-1 AGREEMENT
CONTENTS
1. DEFINITIONS..................................................... 3
1.1 SCP......................................................... 3
1.2 Services.................................................... 3
1.3 Initial Market Area Survey.................................. 3
1.4 New Services................................................ 3
1.5 Add-On Service.............................................. 3
1.6 Modification Order.......................................... 4
1.7 Project..................................................... 4
1.8 PSAP........................................................ 4
1.9 Qualified PSAP.............................................. 4
1.10 AMCI's Region............................................... 4
1.11 Ameritech Wireline Regions.................................. 4
1.12 AMCI Affiliate.............................................. 4
1.13 Subscriber.................................................. 5
2. PROJECT......................................................... 5
2.1 Scope Of Work............................................... 5
2.2 Cancellation Fee Schedule................................... 6
2.3 Modification Orders......................................... 6
2.4 Letter of Agency............................................ 6
2.5 Orderly Transition.......................................... 6
3. TERM AND TERMINATION............................................ 8
3.1 Term........................................................ 8
3.2 Termination................................................. 8
4. FEES AND PAYMENT................................................ 11
4.1 Fees For Service............................................ 11
4.2 Other Charges............................................... 14
4.3 Disputed Invoices........................................... 14
4.4 Taxes....................................................... 15
5. LICENSES AND DEVELOPED INFORMATION.............................. 15
5.1 Licenses.................................................... 15
5.2 Developed Information-Definitions........................... 16
5.3 Developed Information-Rights................................ 17
6. CONFIDENTIALITY................................................. 18
6.1 Confidential Information.................................... 18
6.2 Exceptions.................................................. 19
6.3 Ownership of Confidential Information....................... 19
7. WARRANTIES...................................................... 19
7.1 Warranty By SCC............................................. 19
7.2 Warranty By AMCI............................................ 20
8. INDEMNIFICATION................................................. 21
8.1 General Indemnification..................................... 21
8.2 Intellectual Property Indemnification....................... 21
9. LIMITATION OF LIABILITY......................................... 22
10. INSURANCE...................................................... 22
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11. GENERAL PROVISIONS............................................. 23
11.1 Exhibits.................................................... 23
11.2 Electronic Exchange......................................... 23
11.3 Staffing Level.............................................. 23
11.4 Advertising and Publicity................................... 23
11.5 Assignment and Delegation................................... 24
11.6 Company Rules............................................... 24
11.7 Escalation Procedures....................................... 24
11.8 Force Majeure............................................... 24
11.9 Governing Law............................................... 25
11.10 Independent Contractors..................................... 25
11.11 Subcontracting.............................................. 25
11.12 Joint Work Product.......................................... 25
11.13 Laws, Regulations, Permits.................................. 25
11.14 Notices..................................................... 25
11.15 Non-Waiver.................................................. 26
11.16 Severability................................................ 26
11.17 Binding Effect.............................................. 26
11.18 Time Is Of The Essence...................................... 27
11.19 Equal Opportunity........................................... 27
11.20 Remedies.................................................... 27
11.21 Authority................................................... 27
11.22 Entire Agreement............................................ 27
EXHIBIT A SCOPE OF WORK
EXHIBIT B CANCELLATION FEE SCHEDULE
EXHIBIT C SAMPLE MODIFICATION ORDER
EXHIBIT D LETTER OF AGENCY
EXHIBIT E AMCI/SIGNALSOFT LICENSE
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WIRELESS E9-1-1 SERVICES AGREEMENT
THIS AGREEMENT ("this Agreement") is made this day of ,
1998, (the "Effective Date") between SCC COMMUNICATIONS CORPORATION, ("SCC") a
Delaware Corporation, having its corporate offices located at 0000 Xxxxxxx Xxxx,
Xxxxxxx, Xxxxxxxx 00000, and AMERITECH MOBILE COMMUNICATIONS, INC. ("AMCI") a
Delaware corporation having its corporate offices located at 0000 Xxxx Xxxxxxxxx
Xxxxxx Xxxxx, Xxxxxxx Xxxxxxx, Xxxxxxxx 00000, who are collectively referred to
herein as "the Parties" or individually as "Party."
In consideration of the promises and covenants set forth herein, and for
good and valuable consideration, the sufficiency of which is hereby
acknowledged, the Parties agree as follows:
1. DEFINITIONS
1.1 SCP.
"SCP" means Service Control Point.
1.2 SERVICES.
"Services" or "Wireless E9-1-1 Services" means the basic wireless enhanced
9-1-1 services described in the "Scope Of Work" ("SOW"), attached hereto and
marked as Exhibit A (which Services do not include provision of "SCP" equipment)
which Services are intended to enable AMCI to implement and maintain a wireless
E9-1-1 system, in AMCI's Region (as defined herein below) in its entirety and
for all of AMCI's Subscribers (as defined herein below), in compliance with FCC
Docket Number 94-102 for Phase I service.
1.3 INITIAL MARKET SURVEY
"Initial Market Area Survey" or "Initial Market Survey", "IMAS" or "Market
Area Survey" means the report prepared by SCC, and associated tasks performed by
SCC, as described in Exhibit A, which identifies certain information that is
specific to AMCI's E9-1-1 networks and infrastructures and such other
information as is expressly stated in Exhibit A.
1.4 NEW SERVICES.
"New Service" means those services developed by SCC in its sole discretion
which modify, improve or add functionality, of any level, kind or version, to
the Services and which are offered to and accepted by AMCI pursuant to
subsequent agreement of the Parties.
1.5 ADD-ON SERVICES.
"Add-On Service" means services that are customized to AMCI's particular
needs and that are not New Services or Services initially contemplated herein,
but which are developed by SCC as a result of AMCI's explicit request for
specific modifications, improvements or additional functionality to the Services
or New Services and which are added to same pursuant to subsequent agreement of
the Parties.
1.6 MODIFICATION ORDER.
"Modification Order" means a document which, by its formal execution,
obligates the Parties with respect to the addition, or modification, of New
Services or Add-On Services described in such document. Such Modification Order
shall be subject to the terms and conditions hereof, shall be prepared in
substantially the same form as that set forth in Exhibit C and shall become
effective only when fully executed by the authorized representatives of each
Party as evidenced thereon.
1.7 PROJECT.
"Project" means the undertaking of the tasks and duties set forth in
Section 2 hereof.
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1.8 PSAP.
"PSAP" means Public Safety Answering Point as that phrase is commonly known
in the telecommunications industry.
1.9 QUALIFIED PSAP.
"Qualified PSAP" means a PSAP which, in connection with the FCC's Order in
Docket Number 94-102, has requested E9-1-1 service from AMCI, has put in place a
cost recovery plan and is technologically capable of providing E9-1-1 service .
1.10 AMCI'S REGION.
"AMCI's Region" means the geographic region in which AMCI or one of its
Affiliates, as defined herein, is licensed to provide personal wireless
communications services.
1.11 AMERITECH WIRELINE REGIONS.
"Ameritech Wireline Region" means the geographic region in which Ameritech
is licensed to offer wireline telecommunications service.
1.12 AMCI AFFILIATE.
"AMCI Affiliate" means any entity that directly or indirectly, through one
or more intermediaries, controls or is controlled by or is under common control
with AMCI, as well as any successor to AMCI, whether by change of name,
dissolution, merger, consolidation, reorganization or otherwise.
1.13 SUBSCRIBER.
"Subscriber" means each AMCI wireless customer having an assigned Mobile
Directory Number (MDN) whose address falls within the municipal, county or other
jurisdictional boundary served by a Qualified PSAP in AMCI's Region which
Qualified PSAP has requested and is being provided wireless E9-1-1 Services by
SCC on behalf of AMCI. Such wireless customers shall include wireless customers
whose service is delivered by AMCI via so-called "analog" or "digital"
technology.
2. PROJECT
2.1 SCOPE OF WORK (EXHIBIT A).
The Scope of Work set forth in Exhibit A constitutes a complete and
detailed description of SCC's obligations to perform the Services to be
performed in connection with the Project, which shall be performed exclusively
by SCC in Ameritech's Wireline Regions, and non-exclusively in all other AMCI
Regions, subject to AMCI's rights expressly stated herein, and which shall apply
to the entire AMCI Region, to all Qualified PSAPs therein, and to all of AMCI's
Subscribers. SCC acknowledges that its Services represent a portion of combined
effort on the part of other critical third party vendors who themselves, along
with SCC, are participating in an integrated effort to deploy AMCI's Phase I
E9-1-1 wireless service; and in this regard, SCC will reasonably cooperate with
such other vendors as set forth in Exhibit A. AMCI will timely perform its
obligations as set forth in Exhibit A.
2.1.1 MARKET AREA SURVEY.
SCC shall not be responsible for providing a Market Area Survey under the
terms and conditions of this Agreement. The Parties have already executed a
"Consulting Agreement" dated October 27, 1997, which is hereby ratified, which
agreement will govern the terms and conditions under which SCC will perform a
"Market Area Survey And Analysis". SCC will ensure that its work related to said
Market Area Survey And
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Analysis will be performed in a manner consistent with the terms and conditions
of this Agreement and Exhibit A.
2.1.2 SYSTEM EFFICIENCY.
SCC is devoted to improving and exceeding the standards and requirements of
this Agreement in the provision of Services. This includes improvement in the
automation procedures, software products, hardware products, personnel training
and qualifications, and all other services. Therefore, performance and
efficiency of the system for delivery of the Services will be maintained and
periodically improved by SCC without charge to AMCI. Such changes in the
provision of Services shall be considered usual and customary and not New
Services. The system for delivery of the Services is described in Exhibit A.
2.1.3 REGIONAL UNIFORMITY.
Except as may otherwise be described herein, the Services will be provided
under regionally consistent terms and shall not be state-specific unless it is
legally mandated by the state or other legally governing body.
2.2 CANCELLATION FEE SCHEDULE (EXHIBIT B).
The Cancellation Fee Schedule, attached hereto and marked as Exhibit B and
incorporated herein, sets forth the cancellation fee, if any, that would be
payable by AMCI to SCC in the event AMCI exercises its right to cancel this
Agreement pursuant to section 3.2.3 hereunder.
2.3 MODIFICATION ORDER (EXHIBIT C).
If AMCI elects to purchase from SCC New Services or Add-On Services, AMCI
will deliver to SCC a completed form substantially similar to that which is set
forth in Section 1.7 of Exhibit A. The parties will negotiate in good faith the
terms and conditions relating to the provision of such services, which shall
include at a minimum: (a) a description of the requested service; (b) a
projected date of its availability; (c) a proposed implementation schedule; (d)
the initial non-recurring charges and/or additional recurring charges associated
with the service; and (e) any other information deemed appropriate by the
Parties. Modification Orders will not be effective or binding upon the parties
unless signed by an authorized individual from AMCI who occupies a position at
AMCI of director level or above.
2.4 LETTER OF AGENCY (EXHIBIT D).
AMCI shall provide SCC with a Letter of Agency ("LOA") similar in form and
substance to that which is set forth in Exhibit D, which letter will enable SCC
to perform the Services as a limited agent for AMCI. The LOA shall: (a) not be
released by SCC or used except as authorized by this Agreement; (b) be deemed
revoked upon termination of this Agreement or delivery to SCC of written notice
of AMCI's election in this regard; and (c) be returned to AMCI upon AMCI's
request, or destroyed by SCC upon termination of this Agreement or the
revocation notice described herein.
2.5 ORDERLY TRANSITION.
2.5.1 TRANSITIONED SERVICES -- SUBSTITUTION FOR SCC.
In AMCI's sole discretion, AMCI may elect to perform, or have its agents
perform, the Services (described below in subparagraphs 2.5.1(a) and 2.5.1(b)
which are more fully described in Exhibit A) in whole or in part, in each or any
of AMCI's Regions ("Transitioned Services"). AMCI may not exercise said option
earlier than one (1) year after the date on which a particular Qualified PSAP,
which has requested Phase I E9-1-1 Service, is turned-up and Services are
deployed by SCC. In the event AMCI properly makes such an election, and to the
extent determined by AMCI in its sole discretion, AMCI shall substitute its
performance for that of SCC. Thereafter AMCI shall be responsible for the
Transitioned Services in lieu of SCC, and except as otherwise expressly provided
herein, SCC shall be relieved of its obligations therefore.
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The pricing discounts related to AMCI's exercise of this option are described in
section 4 hereunder. Transitioned Services include:
(a) network engineering, design and pANI Translations, including
identification of specific network interconnections required from AMCI to
specific E9-1-1 networks, Qualified PSAPs, appropriate engineering of
connections for traffic capacity and coordination of pANI translations into
the required AMCI network elements;
(b) LEC/CLEC and pANI coordination and pANI assignment, including
coordination of network ordering, installation testing and turn-up as well
as coordination of all pANI assignments and confirmation with all LEC/CLEC
interconnect requirements and pANI assignments;
2.5.2 ORDERLY TRANSITION.
In the event AMCI properly exercises its options related to sections 2.5.1
or 2.5.2, then to the extent it is relevant and applicable thereto, SCC will
cooperate in the orderly transition of the Transitioned Services to AMCI or its
agent and will make reasonable efforts to minimize any disruption of AMCI's
wireless 9-1-1 service. At such time that AMCI exercises any option in this
regard, and with respect to the AMCI-relevant data and databases that SCC
legally controls hereunder, SCC will deliver to AMCI such data contained in such
databases, and other information, that is necessary to allow SCC to be
substituted in this regard; provided, however that SCC shall not be obligated to
do so if such delivery or other performance would violate the provisions of the
confidentiality provisions contained herein, result in a breach of contract to
which SCC is a party as of the date hereof, violate any other law or private
right, would convey to AMCI any intellectual property or other right to which
AMCI is otherwise unentitled hereunder, or would otherwise unreasonably subject
SCC to civil or criminal prosecution. Such data and information shall include
but not be limited to "AMCI Results", as defined herein below, along with the
data needed to perform said Services in a readable file that is convertible with
commercially available software which data is current as of the date of such
substitution. Upon AMCI's request, and subject to the above limitations, SCC
will provide to AMCI whatever explanatory information or functional tools in
SCC's possession or legitimate control which are reasonably necessary for AMCI
to fully exploit the database contents.
Unless otherwise agreed by the Parties, after such time as AMCI becomes
responsible for the Transitioned Services as contemplated herein, SCC would
continue to upload to AMCI's SCP(s) on AMCI's behalf the mapping files which
operate in connection with the location-based application software being
utilized by the Parties as of that date, or a reasonable substitute therefore,
which SCC is capable of and willing to support.
Following termination, cancellation or expiration of this Agreement, or in
connection with an Orderly Transition, if AMCI requests that SCC continue to
provide any portion or all of the Services, for which SCC would not otherwise be
contractually obligated to provide under the terms and conditions of this
Agreement, AMCI shall compensate SCC for such Services at the same rate as that
set forth herein for such Services.
3. TERM AND TERMINATION
3.1 TERM.
Unless earlier terminated or canceled in accordance with this section, the
term of this Agreement shall begin upon the Effective Date as first stated
herein and continue until December 31, 2000. If either Party terminates this
Agreement according to the provisions of this section, then both Parties agree
to participate in the orderly shutdown and transition of products and services
as provided herein. Following this initial term, the Agreement shall
automatically renew for continuous twelve (12) month terms unless terminated at
the end of a renewal term upon no less than sixty (60) days advance written
notification by the terminating Party.
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3.2 TERMINATION AND CANCELLATION.
3.2.1 TERMINATION BY AMCI.
This Agreement may be terminated by AMCI in whole or part for any of the
following reasons:
(1) if SCC defaults in its performance of any material obligation
required to be performed by SCC under this Agreement (including, but not
limited to, a failure by SCC to meet the specific acceptance or performance
requirements set forth in Exhibit A, or the warranties set forth herein),
and such default is not cured (or, in AMCI's reasonable opinion,
satisfactory progress has not been made as part of the escalation
procedures described in Exhibit A) within a thirty (30) day "cure period"
following receipt of AMCI's written notice which describes the default; or
(2) in the event of any acquisition, or takeover of a controlling
interest in SCC by another entity, or a merger or other consolidation of
SCC into or with another entity, if the other or surviving entity, at
AMCI's discretion is or could be deemed a competitor of AMCI or its
Affiliates in the telecommunications industry, or if the entity in AMCI's
reasonable discretion is not financially or operationally capable of
assuming the services being provided hereunder; or
(3) in the event continued performance under this Agreement would
cause AMCI to be in violation of any court order or regulatory agency
having jurisdiction, or of any law, statute, ordinance or regulation,
except that any failure of the Tandem, Signal Soft, SCC solution
contemplated herein shall not be deemed such a cause which circumstance is
addressed in and controlled by section 3.2.2 herein below.
In the event of an AMCI termination as described above, AMCI will have no
payment obligations to SCC beyond the effective termination date and will not be
obligated to pay SCC.
In the event of an AMCI termination as described above, SCC will cooperate
in the orderly transition of such terminated services in accordance with the
applicable provisions of section 2.5.2 herein.
A termination of this Agreement by AMCI does not in any way obligate AMCI
to purchase any other SCC products and services following such termination.
Even if any of the above reasons (that allow AMCI to terminate) may be
isolated to a particular state(s), AMCI retains its right to terminate the
entire Agreement if it so chooses.
3.2.2 TERMINATION BY AMCI -- NON-INTEGRATION WITH SCP NETWORK.
SCC understands that AMCI's E9-1-1 network must operate in combination with
equipment, hardware and software provided by Tandem, Signal Soft and Lucent to
AMCI. SCC agrees to cooperate fully with such other suppliers to the extent
necessary to assure that AMCI's E9-1-1 network will function in accordance with
the specifications and requirements of this Agreement, any applicable TIA or
Bellcore standards and specifications, and any standards for E9-1-1, Phase I
services mandated by federal, state or local laws, ordinances, rules and
regulations. In the event that the SCC, Tandem, Signal Soft and Lucent solution
cannot perform in an integrated manner in the AMCI network and thereby process
E9-1-1 calls per the applicable standards for Phase I E9-1-1, AMCI shall provide
SCC with written notice of said non-integration. Immediately after SCC's receipt
of such notice, the Parties will, in good faith, jointly explore an alternative,
compliant solution for processing E9-1-1 calls which solution would, to the
extent practical, designate SCC as the provider of the database management
services defined in the SOW, subject to the terms and conditions described below
in this subsection. AMCI will give due consideration to the opinions and
recommendations of SCC in connection with the selection of an alternative,
compliant solution, but AMCI will have sole discretion as to its final choice.
If said alternative solution contemplates an E9-1-1 call processing
platform whereby said database management services, as defined in the SOW, can
be performed as a "stand alone" functionality and not bundled with other
services, then SCC will have the right to provide those database services at the
same costs and under terms and conditions that are no less favorable to AMCI
than those set forth in this Agreement.
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If such alternative solution is provided by a third party and involves a
platform whereby the third party vendor providing such solution uses database
management services as a bundled offering with SCP(s) and location-based
software to accomplish E9-1-1 call processing functionality, then SCC would only
have the right to provide such database management services if: (a) SCC and AMCI
jointly obtain consent from said third party vendor to un-bundle said database
management services; (b) using SCC would not deprive AMCI of its options for
selecting an alternative, compliant solution as described herein; (c) SCC would
agree to provide such services under terms and conditions that are no less
favorable to AMCI than that set forth herein; (d) SCC would agree to provide
such services at a cost that, when added to the third party vendor's total cost
to provide the bundled service, minus the price at which said third party would
otherwise provide database management services, would not exceed the third party
vendor's total original cost for the bundled services; and (e) SCC would agree
to provide such services in a manner that equals or exceeds the quality of
database management services offered as part of the bundled service.
If SCC and AMCI cannot provide or mutually agree to a plan to provide an
alternate, compliant functionality within a thirty (30) day period, measured
from the date on which SCC receives said notice of non-integration, which period
may be extended by mutual agreement of the Parties, then AMCI may terminate the
portion of this Agreement affected by such non-integration upon written notice
of AMCI's desire to terminate, which notice shall state the effective date of
such termination and the reasons supporting such termination. Such a termination
shall not be deemed a default by SCC. AMCI may exercise its termination rights
hereunder for a period up to one hundred twenty (120) days after successful
completion of the First Office Application (FOA). For the purposes of this
clause, successful completion of the FOA means successful completion of the
testing based upon the Signal Soft Acceptance test document "W911-TP-Acceptance
Test" dated December 16, 1997 and the commercial deployment of the SCC, Tandem,
Signal Soft and Lucent solution with a Qualified PSAP and live AMCI customer
traffic on a duplex SCP configuration. In the event AMCI exercises its right of
termination in this regard, AMCI shall be responsible for paying SCC all the
fees otherwise payable in accordance with the provisions of section 4 herein for
Services rendered as of the date of said termination.
Appendix A-1 is an E9-1-1 System Supplier Responsibility Matrix that lists
the start-up and ongoing system responsibilities as between the various parties
involved in the SCC, Tandem, Signal Soft, Lucent and AMCI solution. For purposes
of this Agreement, said matrix shall govern any disputes regarding E9-1-1
supplier responsibility as between SCC, Tandem, Signal Soft, Lucent and AMCI. In
the event of a dispute not involving any one or more of such third parties but
which is solely between SCC and AMCI over SCC's and AMCI's respective
responsibilities as set forth in said matrix as opposed to that which is set
forth in Exhibit A, that which is set forth in Exhibit A will control said
dispute. SCC shall provide for those responsibilities described in Exhibit A at
no additional charge beyond the contracted Non-recurring and Recurring fees
listed in section 4 herein below.
3.2.3 CANCELLATION BY AMCI.
In the event the regulatory, legal, labor or business conditions,
("business conditions" being defined as market share, profitability, ability to
grow revenue, and the allocation of internal resources) under which this
Agreement is based upon change so that it would no longer be in AMCI's best
interests to continue with the full term as stated herein, AMCI shall have the
ability to cancel this Agreement in its entirety, or on a state-by-state basis,
at any time upon providing SCC prior written notice of its intention to cancel,
and the scope (i.e., # of states) of the cancellation, at least 180 days in
advance of the AMCI designated cancellation date. Exhibit B, "Cancellation Fee
Schedule", sets forth AMCI's cancellation fee payment obligations to SCC in the
event of such cancellation. Payment by AMCI of the cancellation fee shall be the
extent of AMCI's liability to SCC in the event of a cancellation hereunder.
The Parties acknowledge and agree that the cancellation fee is not a
penalty and is, and shall be deemed, liquidated damages which damages are
reasonably based on the Parties' best estimate of what SCC's damages would be as
a result of AMCI's cancellation for Business Conditions.
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In the event this Agreement is cancelled by AMCI in whole or part in
accordance with this Section, SCC agrees, at AMCI's option, to sell AMCI those
SCC products and services, to which SCC has the ability and legal capacity to
sell, and which are desired by AMCI, under prices and terms consistent with the
"Most Favored Customer" provisions set forth herein. Except as may otherwise be
provided hereunder, in the event of an AMCI cancellation, AMCI will have no
payment obligations to SCC beyond the effective cancellation date for that
portion of the Agreement cancelled.
A cancellation of this Agreement by AMCI does not in any way obligate AMCI
to purchase any other SCC products and services following such cancellation.
3.2.4 TERMINATION BY SCC.
This Agreement may be terminated by SCC if AMCI defaults in its performance
of any material obligation required to be performed by AMCI under this Agreement
(including, but not limited to, a failure by AMCI to pay SCC's undisputed
invoices for services performed), and such default is not cured (or, in SCC's
reasonable opinion, satisfactory progress has not been made) within a thirty
(30) day "cure period" following receipt by AMCI of SCC's written notice which
describes the default.
4. FEES AND PAYMENT
4.1 FEES FOR SERVICES.
4.1.1
AMCI will pay SCC the fees and charges in the amounts and in the manner set
forth below:
A. NON-RECURRING ENGINEERING FEE ("NRE") FOR EACH MOBILE SWITCHING CENTER
("MSC") MARKET
The Mobile Switching Center ("MSC") market Non-Recurring Engineering
("NRE") Fee, of [ ] dollars ($[ ]) per Mobile Switching
Center ("MSC"), is a one time charge per MSC which will cover the work
associated with MSC network interconnection analysis and coordination,
market-specific Cell/ Face coverage mapping, selective router assignment and
location description assignment; initial pANI data build & validation with
Qualified PSAPs in each market area served by the MSC; delivery of validated
pANIs to appropriate ALI databases; MSC market wireless 9-1-1 test coordination,
as described in Exhibit A. Said NREs will be due upon execution of a
Modification Order, Request Form or such other documentation that accompanies
AMCI's request that SCC initiate the work related to turning up an MSC with the
Services.
B. MONTHLY RECURRING FEES ("MRF") FOR SERVICES
The Monthly Recurring Fees ("MRF") for Services are itemized below and are
each charged on a per Subscriber per month basis. MRF shall commence at such
time as Service is deployed to the Qualified PSAP in AMCI's Region which
Qualified PSAP is the first in time to be deployed by AMCI.
The MRF for Services, provided on an exclusive basis by SCC during the term
of this Agreement in the Ameritech Wireline Region, and on a non-exclusive basis
in all other AMCI Regions, and will be billed at a rate of $[ ] per
Subscriber per month. This rate shall be fixed for the term of this Agreement
unless modified pursuant to this Agreement and the following adjustments:
Any time after 12 months from the date on which a particular Qualified
PSAP, which has requested Phase I E9-1-1 Service, is turned-up and Services
are deployed by SCC in accordance with the terms of this Agreement, if AMCI
elects to exercise its option to perform all of the "Transitioned Services"
described in subparagraph 2.5.1(a) of the Agreement, then only as to those
particular Qualified PSAPs in those market(s) in which AMCI performs such
Transitioned Services, the above MRF of $[ ] will be discounted by
$[ ]; and
Any time after 12 months from the date on which a particular Qualified
PSAP, which has requested Phase I E9-1-1 Service, is turned-up and Services
deployed by SCC in accordance with the terms of this
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Agreement, if AMCI elects to exercise its option to perform all of the
"Transitioned Services" described in subparagraph 2.5.1(b) of the
Agreement, then only as to those Qualified PSAPs in those market(s) in
which AMCI performs such Transitioned Services, another discount in the
amount of $[ ] will be applied to further reduce said MRF.
For those markets in which AMCI does not perform all of the applicable
Transitioned Services, no discount will apply. AMCI may exercise either or both
of such options in any order, regardless of whether done consecutively,
non-consecutively or concurrently.
Unless otherwise mutually agreed by the parties in writing, an increase in
the fees, rates and prices referenced herein, if any, which occur beyond the
initial term of this Agreement will not exceed [ ] of the relevant
fee, rate or price in effect during the immediately-preceding twelve (12) month
period.
C. REPORTING
The Parties will cooperate monthly as follows in calculating the number of
Subscribers as follows:
1. Not later than the 15th day of each month, commencing the first
month that Services have been deployed, and continuing for the duration of
this Agreement, SCC will provide to AMCI, in an agreed-upon electronic
format, a list of zip codes falling with a given Qualified PSAP boundary
for which such Qualified PSAP has deployed Services. Unless otherwise
modified in connection with a mutually agreed-upon "true-up" process, as
described in paragraph 3 herein below, said list will only include those
zip codes in which at least fifty percent (50%) of a given zip code area
falls within a Qualified PSAP boundary.
2. No later than seven (7) business days after AMCI's receipt of such
list of zip codes, AMCI will provide to SCC, in an agreed-upon electronic
format, with the number of Subscribers in each zip code, broken down by
Qualified PSAP.
3. Recognizing that this method of calculating Subscribers leaves open
the possibility that AMCI could be under-charged or over-charged in any
given month and that another method may be appropriate, the Parties will
work together and will mutually agree upon an acceptable method to
"true-up" the number of Subscribers and related MRFs on a calendar quarter
basis. Until such time, the above calculation shall govern the number of
Subscribers.
D. BILLING & PAYMENT
MRF for Services performed in a given month will be invoiced in arrears on
or about the first day of each month commencing the first month following the
date on which Services are first provided. MRF invoices will be payable by AMCI
without interest or penalty not later than thirty (30) days after AMCI's receipt
of said invoice. SCC will prepare invoices broken out by AMCI Market (which may
be modified from time to time by AMCI with reasonable advance written notice to
SCC).
SCC shall not be entitled to reimbursement by AMCI for SCC's costs of
travel or any expense directly related to any non-recurring engineering fees
(NRE).
4.1.2 FAIR MARKET VALUE.
The Parties agree that the price of tangible and intangible assets referred
to in this Agreement fair market value for same. With respect to any other fees,
charges, payments or purchases prospectively negotiated or determined by the
Parties which related to the Project, the same will likewise reflect fair market
value. If the Parties are unable to agree upon a price for same, each shall
select an appraiser knowledgeable in the valuation of the types of items at
issue, and the two appraisers shall attempt to reach agreement on the fair
market value. If the two appraisers are unable to reach agreement, they shall
select a third appraiser who also shall be knowledgeable in the valuation of
such matters. The three appraisers shall then determine the fair market value,
but if they are unable to agree, the fair market value shall be set by the third
appraiser. Each Party shall bear the expense of the appraiser selected by it,
and the Parties shall split the expense of the third appraiser.
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4.1.3 MOST FAVORED CUSTOMER.
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4.1.4 AUDITS.
At its sole expense, SCC shall maintain complete and accurate books and
records with respect to the Project, and said books and records shall be
maintained in accordance with generally accepted accounting principles. Each
Party shall have the right to audit the books and records of the other which
books and records relate specifically to the calculation of the number of
Subscribers and related Monthly Recurring Fees (referred to as "MRF" in Exhibit
B). In addition, AMCI shall have the right to audit the books and records of SCC
which relate to prices charged to AMCI hereunder in connection with AMCI's "Most
Favored Customer" status, or which relate to billing for Fees and Charges
described in this section 4 as well as that which is relevant to SCC's
data-protection and security obligations hereunder. Such audits may be performed
at the premises of the other Party, shall be limited to once per calendar year
and shall only be allowed with not less than fifteen (15) days advance written
notice to the audited Party. Each Party will be responsible for its own costs
related to such audits. "Undisputed" invoices, as defined herein, which are not
adjusted within 12 months of the date of such invoice shall be deemed accepted
by the Parties, regardless of whether such invoice was included in a prior or
subsequent audit.
4.2 OTHER CHARGES.
Charges for miscellaneous services not contemplated in Exhibit A or section
4 hereunder, which services do not include Services, SCP Services, Add-On
Services or New Services ("Other Charges"), will be offered to AMCI on a
time-and-materials basis using SCC's then-current rates for same, less AMCI
discounts, if any, that may be applicable. In the event AMCI requests that SCC
provide such services, SCC shall first furnish AMCI with an estimate of the
amount of the Other Charges, which, upon written agreement of the Parties, may
include travel and other related expenses, and specify a reasonable
"not-to-exceed" billable amount. Xxxxxxxx of Other Charges for the requested
services shall not exceed the specified amount without AMCI's prior written
approval. Other Charges shall be billed in arrears, after provision of the
relevant services, and AMCI shall pay Other Charges within thirty (30) days of
the date of invoices related to such services.
4.3 DISPUTED INVOICES.
In the event of a disputed invoice, AMCI shall notify SCC within sixty (60)
days of the receipt of any such invoice and identify the nature of the dispute
or inaccuracy. AMCI shall pay any undisputed amounts set forth in said invoice
in accordance with the provisions hereof pertaining to normal payment of
invoices, and both parties shall in good faith investigate and attempt to
resolve the outstanding disputed amount.
4.4 TAXES.
Fees and charges payable hereunder shall not include any sales, use,
excise, transaction or other similar taxes levied against or upon the furnishing
or receipt of Service or SCP Services. Further, the amounts payable by AMCI
hereunder are exclusive of all federal, state and local taxes, taxes that are
based on SCC's net or
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gross receipts, franchise taxes or other taxes based on SCC's corporate
existence or status, personal property taxes on licensed software and taxes that
may be due in whole or in part because of any failure by SCC or its agents to
file any return or information required by law, rule or regulation. If any sales
or other taxes related to SCC's provision of Services are payable or mandated by
current or prospective application of law, they shall be separately stated on
the monthly invoice to AMCI, and AMCI shall be responsible for paying same in
accordance with the terms and conditions set forth in this section 4 for payment
of invoices. AMCI shall reimburse SCC for any penalties or interest actually
levied upon SCC only if AMCI's acts or omissions solely caused such penalty or
interest to be levied.
5. LICENSES AND DEVELOPED INFORMATION
5.1 LICENSES.
Notwithstanding any conflicting provision herein, nothing in this Agreement
shall be construed to grant AMCI any right, title or interest in or license to
any SCC Furnished Technology, as defined herein below, SCC hardware or software
products used in the provision of Services, New Services, Add-On Services, any
other SCC proprietary information or intellectual property or SCC-owned
Proprietary Rights (defined herein below). Nothing in this Agreement shall be
construed to grant SCC any right, title or interest in AMCI Furnished
Technology, as defined herein below, AMCI proprietary information, intellectual
property, any data being provided to SCC by AMCI for use in the provision of
Services, New Services, Add-On Services or AMCI-owned Proprietary Rights.
Notwithstanding the above, AMCI shall be entitled to quiet enjoyment of the
benefits of the software made available to AMCI hereunder during the Initial
Term and any Renewal Terms.
5.1.1 SOURCE CODE -- ESCROW.
With respect only to that SCC-owned software utilized by SCC in connection
with the provision of the Services, SCC shall arrange to place a copy of the
most recent version of such software, and the related source code and any
documentation, in escrow with an escrow agent selected by SCC. Said source code
shall be in the form of magnetic medium compatible with equipment the same or
similar to that which provides the Services. Pursuant to a written agreement
between SCC and said escrow agent, said agent will be under a duty to release
the Source Code to AMCI only after sufficient evidence has been demonstrated to
said agent that: (a) SCC makes an assignment for the benefit of creditors,
admits in writing its inability to pay debts as they mature, has a trustee or
receiver appointed to manage all or a substantial part of its assets, or
commences or has commenced against it a proceeding under the United States
Bankruptcy Code and such proceeding is acquiesced in or not dismissed within
sixty (60) days; or (b) SCC ceases, for any reason, to do business or to provide
maintenance and support for such software and or Services.
Such software, source code and documentation shall only be released after
said agent has provided SCC not less than thirty (30) days written notice of the
escrow agent's intent to release same to AMCI.
If the software is modified during the term of this Agreement, SCC shall be
responsible for ensuring that an updated copy thereof, and updated source code
and documentation, is deposited with said escrow agent not less than ten (10)
days after SCC's receipt of such modification, or fifteen (15) days after such
modification occurs, whichever is later. The costs related to said escrow
agreement and any release of the source code shall be borne by SCC and AMCI
equally.
5.1.2 LOCATION-BASED SOFTWARE.
SCC agrees to utilize the software of Signal Soft in connection with SCC's
provision of Services and will maintain said software in its most current form
and will provide AMCI with support of the mapping functionality for the
location-based software as described in Exhibit A. At no cost to SCC, AMCI shall
provide SCC with a copy of MAPs Software ("Licensed Software") which AMCI has
licensed from SignalSoft Corp. ("SignalSoft") for use by SCC in its provision of
database management services for AMCI pursuant to the terms of this Agreement.
SCC agrees to abide by the restrictions on disclosure and copying of
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the Licensed Software contained in Section 4 of AMCI's agreement with
SignalSoft, a copy of which Section is attached hereto as Exhibit E, and agrees
to return such copy of the Licensed Software retaining no copies, to AMCI upon
termination of SCC's Agreement with AMCI. SCC agrees that SignalSoft shall be a
third party beneficiary of the agreements contained in this paragraph and that
SignalSoft may enforce them directly against SCC.
5.2 DEVELOPED INFORMATION -- DEFINITIONS.
5.2.1 PROPRIETARY RIGHT.
"Proprietary Right" means any patent, copyright, trade secret, trademark or
other intellectual property right that is protected or protectable under the
laws of any governmental authority having jurisdiction.
5.2.2 AMCI FURNISHED TECHNOLOGY.
"AMCI Furnished Technology" means any design, specification, know-how,
computer program, computer software, computer hardware, device, technique,
algorithm, method, procedure, discovery or invention, whether or not reduced to
practice, or enhancement, improvement or derivative works thereof that (a) is
protected or protectable under any Proprietary Right, (b) is owned or controlled
(by license or otherwise) by AMCI or any of its affiliates, and (c) is furnished
or to be furnished by AMCI or any of its affiliates to SCC under this Agreement.
AMCI represents that any of its employees or agents who have or may have a right
of interest in or to AMCI Furnished Technology have executed proper waivers
granting all right, title and interest in same to AMCI.
5.2.3 SCC FURNISHED TECHNOLOGY.
"SCC Furnished Technology" means any design, specification, know-how,
computer program, computer software, computer hardware, device, technique,
algorithm, method, procedure, discovery or invention, whether or not reduced to
practice, or enhancements, improvements or derivative works thereof that (a) is
protected or protectable under any Proprietary Right, (b) is owned or controlled
(by license or otherwise) by SCC or any of its affiliates, and (c) is furnished
or to be furnished by SCC or any of its affiliates to AMCI under this Agreement.
SCC represents that any of its employees or agents who have or may have a right
of interest in or to SCC Furnished Technology, or those who are performing
Services hereunder, have executed appropriate waivers granting all right, title
and interest in same to SCC.
5.2.4 AMCI RESULTS.
"AMCI Results" means any information or data that (a) does not fall within
the definition herein of Services or New Services, and (b) is not public
information, and (c) is not SCC Furnished Technology or the property of any
third party, and (d) is protected or protectable as a Proprietary Right, and (e)
is created, compiled, conceived, developed, discovered, invented, or made by SCC
specifically for the benefit of AMCI. Results shall include all AMCI-specific
network data, including MSC, cell site, routing information and data, the most
recent data and map files which use the relevant location-based application
software.
5.3 DEVELOPED INFORMATION -- RIGHTS.
5.3.1 AMCI RESERVATION OF RIGHTS.
AMCI reserves all of its right, title and interest in all AMCI Furnished
Technology and all Proprietary Rights in same.
5.3.2 SCC RESERVATION OF RIGHTS.
SCC reserves all of its right, title and interest in all SCC Furnished
Technology and all Proprietary Rights in same.
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5.3.3 OWNERSHIP OF AMCI RESULTS.
AMCI will be the exclusive owner of all right, title and interest in the
AMCI Results and all Proprietary Rights in same. To the extent permitted under
the United States Copyright Act (17 U.S.C. sec. 101 et seq. and any successor
statutes thereto), the AMCI Results will constitute "works made for hire" and
the ownership of such AMCI Results will vest in AMCI at the time they are
created. In any event, SCC hereby assigns and transfers, and promises to assign
and transfer, to AMCI all SCC's right, title and interest in the AMCI Results
and Proprietary Rights thereto.
6. CONFIDENTIALITY AND NONDISCLOSURE
6.1 NON-DISCLOSURE AND SYSTEM SECURITY.
The Parties each recognize and acknowledge the importance of maintaining
the security and integrity of the other Party's systems and data as well as the
confidential and proprietary nature of same, including such items as AMCI's
operating information and RF coverage areas, AMCI Results, AMCI Furnished
Technology and AMCI's network and data. To protect such data and systems, , each
Party shall strictly adhere to the confidentiality provisions contained herein
during the performance of the Parties' respective obligations hereunder. SCC
understands and acknowledges the confidential nature of AMCI's telephone
subscriber information: it shall not disclose data to which it has access under
this Agreement to any person or entity without the prior written consent of
AMCI, and shall require each SCC employee to acknowledge in writing the
confidential nature of the data and agree to abide by the terms and conditions
of this section.
During the course of this Agreement, either party may receive or have
access to confidential information of the other. "Confidential Information"
means any confidential, private, or proprietary information or data disclosed by
a Party (the "Disclosing Party") to the other Party (the "Recipient") under or
in contemplation of this Agreement which: (a) if in tangible form or other media
that can be converted to readable form is clearly marked as confidential,
proprietary or private when disclosed; or (b) if oral or visual, is identified
as confidential or proprietary upon its disclosure. The terms "Disclosing Party"
and "Recipient" include each Party's corporate affiliates that disclose or
receive Confidential Information. The rights and obligations of the Parties
shall therefore also inure to such affiliates and may be directly enforced by or
against such affiliates. The Recipient acknowledges the economic value of the
Disclosing Party's Confidential Information.
Except as otherwise provided herein or agreed in writing by the Parties,
the Recipient acknowledges the economic value of the Disclosing Party's
Confidential Information and shall:
(a) use the Confidential Information only in connection with the
Recipient's performance of its obligations or in exercising its rights
under this Agreement;
(b) restrict disclosure of the Confidential Information to employees
of the Recipient and its affiliates with a "need to know" and not disclose
it to any other person or entity without the prior written consent of the
Disclosing Party;
(c) advise those employees who access the Confidential Information of
their obligations with respect thereto; and
(d) copy the Confidential Information only as necessary for those
employees who are entitled to receive it and ensure that all
confidentiality notices are reproduced in full on such copies.
6.2 EXCEPTIONS.
The obligations of this section shall not apply to any Confidential
Information which the Recipient can demonstrate:
(a) is or becomes available to the public through no breach of this
Agreement or any other agreement;
(b) was previously known by the Recipient without any obligation to
hold it in confidence;
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(c) is received from a third party free to disclose such information
without restriction;
(d) is independently developed by the Recipient without the use of
Confidential Information of the Disclosing Party;
(e) is approved for release by written authorization of the Disclosing
Party but only to the extent of such authorization and without any
disassembly, reverse engineering, or similar undertaking by Recipient; or
(f) is required by law or regulation to be disclosed, but only to the
extent and for the purposes of such required disclosure, and only if the
Recipient first notifies the Disclosing Party of the order which permits
the Disclosing Party a reasonable opportunity to seek an appropriate
protective order;
(g) is disclosed in response to a valid order of court or other
governmental body of the United States or any political subdivisions
thereof, but only to the extent of and for the purpose of such order, and
only if the Recipient first notifies the Disclosing Party of the order and
permits the Disclosing Party to seek an appropriate protective order.
6.3 OWNERSHIP OF CONFIDENTIAL INFORMATION.
Confidential Information, including permitted copies, shall remain vested
in, and be deemed the property of the Disclosing Party. The Recipient shall,
within twenty (20) days of a written request by the Disclosing Party, return all
Confidential Information (or any designated portion thereof), including all
copies thereof, to the Disclosing Party or if so directed by the Disclosing
Party, destroy such Confidential Information. The Recipient shall also, within
thirty (30) days of receipt of a written request by the Disclosing Party,
certify in writing that it has satisfied its obligations under this section. If
the Recipient fails to abide by its obligations under this section, the
Disclosing Party shall be entitled to immediate injunctive relief in addition to
any other rights and remedies available to it at law or in equity.
7. WARRANTIES
7.1 WARRANTY BY SCC.
SCC warrants and represents to AMCI that: any support and services that SCC
provides to AMCI under this Agreement shall be provided by personnel who are
trained and skilled in the provision of such services and shall be provided in a
professional, effective and efficient manner that equals or exceeds the
then-current industry standard for such services. SCC further warrants that the
Services provided hereunder shall equal or exceed the Performance Metrics
criteria set forth in Exhibit A.
EXCEPT AS PROVIDED, INCORPORATED INTO, OR REFERRED TO IN THIS AGREEMENT,
THERE ARE NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, REGARDING THE SERVICES
PROVIDED BY SCC HEREUNDER.
If AMCI fails to meet its obligations hereunder, or if AMCI is negligent in
its performance hereunder or willfully commits an act or omission with regard to
the provisions hereof, and such failure, negligence or willful conduct
proximately causes a circumstance where SCC is unable to meet one or more of its
warranty obligations hereunder, then performance by SCC under such warranties
shall be suspended as of the date of such failure, negligence or willful
conduct, as the case may be until cured by AMCI. If the nature of the affected
warranty is such that it can not be cured, then such warranty shall be void.
SCC has all requisite power and authority and all material licenses,
permits and other authorization necessary to own an operate its business and to
perform the obligations imposed upon it hereunder and to provide the Services
and SCP Services;
Any computer software or routing services supplied or delivered hereunder
by or for SCC will: (1) accept date information before, during and after January
1, 2000, including but not limited to accepting date input,
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providing date output and performing calculations on dates or portions of dates;
(2) function accurately, without disruption or abnormal ending-scenario or with
any change in the operation of such software or routing services associated with
the advent of the new century, (3) respond to two-digit year and date input in a
way that resolves the ambiguity as to century in a disclosed, defined and
predetermined manner, and (iv) store and provide output of date information in a
way that is unambiguous as to the twentieth or twenty-first century;
SCC warrants that it has no knowledge of any existing software viruses that
would materially impact SCC's performance hereunder. If SCC becomes aware of any
such viruses in its products used in the performance of the Services ordered by
AMCI, it will advise AMCI in writing immediately. If AMCI's performance
hereunder is negatively impacted by SCC's failure to notify AMCI in a timely
fashion of a software virus of which SCC has notice, SCC shall be responsible
for such consequences. Upon learning of a virus in its software, SCC shall use
its best efforts to remedy it as soon as possible.
In the event of any breach of the above warranties, SCC will, at its sole
expense, take appropriate corrective action, including repair or replacement of
the system component not meeting such warranty with respect to hardware or
software and with respect to personnel and business operations, re-performance
of Services or SCP Services or such remedial action as will bring such warranty
into compliance
7.2 WARRANTY BY AMCI.
(a) AMCI warrants that it has all requisite power and authority and all
material licenses, permits and other authorization necessary to own and operate
its business and to perform the obligations imposed upon it hereunder;
(b) AMCI has no knowledge of any existing software viruses that would
materially impact AMCI's performance hereunder. If AMCI becomes aware of any
such viruses in its software used in connection with its performance hereunder,
it will advise SCC in writing immediately. If SCC's performance hereunder is
negatively impacted by AMCI's failure to notify SCC in a reasonably timely
fashion of its knowledge of such viruses, AMCI shall be responsible for such
consequences. Upon learning of such a virus, AMCI shall use its best efforts to
remedy same as soon as possible, at no cost to SCC.
8. INDEMNIFICATION
8.1 GENERAL INDEMNIFICATION.
Each Party shall indemnify and hold harmless the other and the other's
corporate affiliates and their officers, directors, employees, and agents and
their successors and assigns against and from any and all losses, damages,
expenses (including, without limitation, attorneys' fees and costs), claims,
suits and liabilities, whether based in contract or tort (including strict
liability), to the extent that such losses, damages, expenses, demands, claims,
suits and liabilities arise out of or in connection with (a) the indemnifying
Party's negligent or intentional acts or omissions, or those of persons
furnished by it, (b) the failure of the indemnifying Party to fully comply with
the terms and conditions of this Agreement, (c) assertions under Worker's
Compensation or similar laws made by persons furnished by the indemnifying
Party, or (d) the performance or nonperformance of the Services under this
Agreement by the indemnifying Party. The indemnified Party shall promptly notify
the indemnifying Party of any written claim, loss or demand for which the
indemnifying Party is responsible under this Section
8.2 INTELLECTUAL PROPERTY INDEMNIFICATION.
SCC shall defend, at its sole cost and expense, any claim or action of any
kind against AMCI for alleged violation, infringement or misappropriation of any
patent, copyright, trade secret or other intellectual property right based on
the use of SCC products or services under this Agreement. SCC shall have the
right to conduct the defense of any such claim or action and all negotiations
for settlement or compromise, unless otherwise mutually agreed to in writing by
the Parties hereto. However, AMCI, at its own expense, shall have the right
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to participate in the defense of any such suit or proceeding through counsel of
its choosing. SCC shall indemnify and hold harmless AMCI and its officers,
directors, employees, and agents and their successors and assigns against and
from any and all losses, liabilities, damages, claims, demands and expenses
(including, without limitation, reasonable attorneys' fees) arising out of or
related to any such claim or action.
If any SCC product used to provide the Services under this Agreement
becomes involved in any claim or action described above, or is held to
constitute a violation, infringement or misappropriation of a third party's
intellectual property rights and the use thereof is enjoined, then SCC shall, at
SCC's expense and option:
(i) procure the right to continue using said product so that its use
by SCC for AMCI is lawful;
(ii) modify such product so that its use by SCC for AMCI is lawful
(provided that such modification does not adversely affect the Services
provided); or
(iii) replace such product, at no charge to AMCI, with equally
suitable, compatible and functionally equivalent products that lawfully may
be used by SCC for AMCI.
9. LIMITATION OF LIABILITY
EXCEPT WITH RESPECT TO SCC'S OBLIGATION TO INDEMNIFY AMCI IN CONNECTION
WITH THIRD PARTY CLAIMS AND IN CONNECTION WITH INTELLECTUAL PROPERTY
INFRINGEMENT AS SET FORTH IN SECTION 8 HEREIN ABOVE, NEITHER PARTY SHALL BE
LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR
PUNITIVE DAMAGES, WHETHER BASED UPON LOST GOODWILL, LOST PROFITS, LOSS OF USE OR
PERFORMANCE OF ANY PRODUCTS, SERVICES, OR OTHER PROPERTY, LOSS OR IMPAIRMENT OF
DATA OR SOFTWARE, OR OTHERWISE, AND WHETHER ARISING OUT OF BREACH OF EXPRESS OR
IMPLIED WARRANTY, CONTRACT (INCLUDING THE FURNISHING, PERFORMANCE, OR USE OF ANY
HARDWARE, SOFTWARE OR OTHER PRODUCTS, MATERIALS, OR SERVICES PROVIDED PURSUANT
TO THIS AGREEMENT OR THE PERFORMANCE OR NONPERFORMANCE OF OBLIGATIONS UNDERTAKEN
IN THIS AGREEMENT), TORT, (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR
OTHERWISE, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY
OF SUCH DAMAGES OR IF SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN.
To the extent not otherwise governed by federal, state or local law, and
except with respect to SCC's obligation to indemnify AMCI in connection with
third party claims and in connection with intellectual property infringement set
forth in section 8 herein above, SCC's entire liability to AMCI shall be limited
to that which is directly related to its alleged negligent performance or
non-performance of its obligations hereunder, and in any event shall be limited
to the payment of a sum not to exceed [ ].
10. INSURANCE
During the Term hereof, including any extensions, SCC must maintain not
less than the same insurance coverages as that described in SCC's agreement with
Ameritech Information Systems, Inc. dated August 31, 1994. Neither SCC nor SCC's
insurer(s) shall have a claim, right of action or right of subrogation against
AMCI based on any loss or liability insured against under the foregoing
insurance. SCC's policy must be endorsed to name AMCI and its corporate
affiliates as additional insureds and state: "AMCI is to be notified in writing
at least ten (10) days prior to cancellation of or any material change in this
policy". Also, SCC must furnish certificates evidencing the foregoing insurance
coverage prior to commencement of performance.
If SCC fails to maintain the insurance required by this Section, AMCI may
procure such insurance. In such event, SCC shall promptly reimburse AMCI for any
premiums and other charges paid by AMCI for such coverage.
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11. GENERAL PROVISIONS
11.1 EXHIBITS.
Exhibits A, B, C and D shall be deemed incorporated herein and an integral
part of this Agreement. Any AMCI requests for proposal, SCC's responses thereto,
marketing or sales material or any other similar documentation, as well as any
written or verbal representations concerning the Services, SCP Services, New
Services or Add-On Services are specifically excluded from this Agreement and
shall have no relevance, value or binding effect hereon.
11.2 ELECTRONIC EXCHANGE.
To the extent possible, as determined by subsequent, mutual agreement of
the Parties, the Parties will endeavor to use and implement automation
procedures, such as electronic data interchange (EDI), electronic mail and "Web
pages", to facilitate communication, coordination, maintenance, and management
of the Services. If implemented, each Party will be responsible for its
respective costs associated with such exchange.
11.3 STAFFING LEVEL.
SCC will, at all times relevant hereto, maintain a sufficient number of
employees in its discretion to adequately perform the Services, and if
applicable, New Services and Add-On Services.
11.4 ADVERTISING AND PUBLICITY.
SCC shall not prepare or distribute any news releases, articles, brochures,
speeches, Advertisements or other informational releases concerning this
Agreement and the activities performed hereunder without the prior written
consent of AMCI. In addition, SCC shall not use the "Ameritech" or AMCI name or
xxxx (or any variation thereof) without the prior written consent of AMCI, which
shall not be unreasonably withheld.
11.5 ASSIGNMENT AND DELEGATION.
Neither party shall assign any right or obligation under this Agreement
without the other party's prior written consent. Any attempted assignment shall
be void, except that either party may assign monies due or to become due to it,
provided that (a) the assigning party gives the other party at least ten (10)
days prior written notice of such assignment and (b) such assignment does not
impose upon the other party obligations to the assignee other than the payment
of such monies.
Notwithstanding the foregoing, AMCI may assign this Agreement, in whole or
in part, to any of its Affiliates. SCC may assign this Agreement, in whole or in
part, to any of its Affiliates; provided, however, that SCC may not assign this
Agreement to any entity that directly or indirectly through that entity itself
or one of its Affiliates provides two-way cellular voice communication services
or other wireless communication or data services. With respect to assignments by
either Party, any purported assignment may be rejected by the non-assigning
Party, and therefore deemed void, if such Party determines that the assignee is
incapable of substantially performing the assigning Party's obligations
hereunder. Upon such permitted assignment and written assumption of liability
thereto by the assignee, the assignor shall be discharged of any liability under
this Agreement.
11.6 COMPANY RULES.
SCC's employees and agents shall comply with all of AMCI's, governmental
security and plan requirements, rules and regulations provide to SCC while on
AMCI's premises, and AMCI's employees shall comply with all of SCC's,
governmental security and plan requirements, rules and regulations provided to
AMCI while on SCC's premises.
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11.7 ESCALATION PROCEDURES.
The Parties shall attempt to resolve any dispute between them that may
arise under this Agreement through their respective Project Managers as
described in Exhibit A. If after attempting to do so, either Party determines
that the dispute is irresolvable and so notifies the other Party, no further
obligation to escalate the matter shall exist by either Party, in which case,
the Parties are free to pursue any and all remedies available at law or in
equity.
11.8 FORCE MAJEURE.
Neither Party shall be liable to the other for any delay or failure to
perform under this Agreement if the delay or failure to perform is without the
fault or negligence of the Party claiming excusable delay and is due to causes
beyond the control of said Party, including, but not limited to acts of God,
war, acts of the government (where neither Party is itself a governmental body),
fires, floods, epidemics, quarantine restrictions, civil disobedience, criminal
acts by a third party, strikes, labor disputes (including collective bargaining
disputes), work stoppages, and freight embargoes.
11.9 GOVERNING LAW.
The validity of this Agreement, the construction and enforcement of its
terms and the interpretation of the rights and duties of the Parties shall be
governed by the domestic laws of the State of Illinois.
11.10 INDEPENDENT CONTRACTORS.
The Parties are performing pursuant to this Agreement only as independent
contractors. Each Party has the sole obligation to supervise, manage, contract,
direct, procure, perform, or cause to be performed its obligations set forth in
this Agreement, except as otherwise provided herein or agreed upon by the
Parties. Except as specified in this Agreement, nothing set forth in this
Agreement shall be construed to create the relationship of principal and agent
between SCC and AMCI. Neither Party shall act or attempt to act or represent
itself, directly or by implication, as an agent of the other Party or its
affiliates or in any manner assume or create, or attempt to assume or create,
any obligations on behalf of, or in the name of the other Party unless so
instructed by the other Party in writing or allowed under this Agreement.
Nothing herein is intended or shall be construed to create any partnership,
agency, or joint venture relationship between the Parties. Neither Party or a
Party's subcontractor, or the employees of any of them, shall be deemed for any
purpose to be employees of the other Party. Each Party shall be solely
responsible for the withholding or payment of all applicable federal, state, and
local personal income taxes, social security taxes, unemployment and sickness
disability insurance, and other payroll taxes with respect to its own employees.
11.11 SUBCONTRACTING.
SCC shall not subcontract any portion of the work required to be performed
as part of the Project without the prior written consent of AMCI.
11.12 JOINT WORK PRODUCT.
This Agreement is the joint work product of representatives of AMCI and
SCC. Accordingly, in the event of ambiguities, no inferences will be drawn
against either party, including the Party that drafted the Agreement in its
final form
11.13 LAWS, REGULATIONS AND PERMITS.
Each Party shall comply, at its own expense, with all applicable federal,
state, county, and local ordinances, regulations and codes in the performance of
its obligations hereunder, including procurement of required permits and
certificates, the Fair Labor Standards Act, and the Occupational Safety and
Health Act.
17
20
11.14 NOTICES.
All notices or other communications required or permitted to be given under
this Agreement shall be in writing (unless otherwise specifically provided
herein) and delivered or addressed as follows:
To AMCI: Ameritech Mobile Communications, Inc.
0000 Xxxx Xxxxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxxxx, XX 00000
Attn: Manager Network Planning, LOC. 3F25D
with a copy to:
Ameritech Mobile Communications, Inc.
0000 Xxxx Xxxxxxxxx Xxxxxx Xxxxx
XXX. 0X00
Xxxxxxx Xxxxxxx, XX 00000
Attn: Vice President, General Counsel
To SCC: SCC Communications Corp.
Attn: General Counsel
0000 Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxxx 00000
with a copy to:
SCC Communications Corp.
Attn: Chief Financial Officer
0000 Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxxx 00000
All notices or other communications shall be deemed effectively given: (i)
when delivered, if personally delivered (except that notices received after 3:00
p.m. local time will be deemed received on the following business day); (ii) on
the date of delivery (or, if refused, the refusal date shown on the return
receipt) if mailed certified or registered mail, return receipt requested; (iii)
four (4) days after mailing if mailed first class; or (iv) when received by the
Party for which notice is intended if given in any other manner (except that
notices received after 3:00 p.m. local time will be deemed on the following
business day).
11.15 NON-WAIVER.
No course of dealing or failure of either Party to strictly enforce any
term, right, obligation, or provisions of this Agreement or to exercise any
option provided hereunder shall be construed as a waiver of such or any other
provision.
11.16 SEVERABILITY.
If any provision of this Agreement shall be held invalid or unenforceable,
such provision shall be deemed deleted from this Agreement and replaced by a
valid and enforceable provision which, so far as possible, achieves the Parties'
intent in agreeing to the original provision. The remaining provisions of the
Agreement shall continue in full force and effect.
11.17 BINDING EFFECT.
This Agreement shall be binding on, and inure to the benefit of, the
Parties and their respective successors and permitted assigns.
11.18 TIME IS OF THE ESSENCE.
Time is of the essence the performance under this Agreement.
18
21
11.19 EQUAL OPPORTUNITY.
To the extent AMCI is required by law to extend any Equal Opportunity
Employment requirements to suppliers or vendors, and such is required to include
SCC, as a provider of Services or SCP Services, SCC shall comply with all
applicable portions of such requirements including any applicable
non-discrimination compliance provisions. AMCI shall inform SCC of such
requirements in writing as soon as same become known to AMCI.
11.20 REMEDIES.
The rights and remedies provided herein shall be cumulative and, except as
limited herein, in addition to any other remedies available at law or in equity.
11.21 AUTHORITY.
Each Party represents to the other that it has full authority to enter into
and secure performance of this Agreement and that the person signing this
Agreement on behalf of the Party has been properly authorized to enter into this
Agreement. Each Party further acknowledges that it has read this Agreement,
understands it, and agrees to be bound by all of its terms, conditions and
provisions.
11.22 ENTIRE AGREEMENT.
This Agreement, when fully executed, together with any Exhibits or other
attachments appended hereto, constitutes the entire agreement between the
parties and supersedes all promises and representations, if any, whether written
or oral between the Parties with respect to the subject matter hereof. No
modification, amendment, supplement or waiver of this Agreement or any of its
provisions shall be binding upon the Parties unless made in writing and duly
signed by an authorized representative of each Party.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed by their duly authorized representatives.
SCC COMMUNICATIONS CORPORATION AMERITECH MOBILE COMMUNICATIONS, INC.
/s/ Xxxx Xxxx /s/
----------------------------------------------------- -----------------------------------------------------
Signature Signature
Chief Operating Officer President
----------------------------------------------------- -----------------------------------------------------
Title Title
April 8, 1998 March 16, 1998
----------------------------------------------------- -----------------------------------------------------
Date Date
19
22
Exhibit A 9-1-1CONNECT(TM) STATEMENT OF WORK
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TABLE OF CONTENTS
FOR 9-1-1Connect(TM) STATEMENT OF WORK
1. OVERVIEW OF STATEMENT OF WORK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2. IMPLEMENTATION SERVICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.1 Project Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.2 Microsoft Project Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.3 Roles and Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.4 Initial Market Survey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
2.5 System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
2.6 Network . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
2.7 Database Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
2.8 The Communication Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
2.9 First Office Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
2.10 Development of Methods and Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
3. OPERATIONS AND SUPPORT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
3.1 Operations and Support Management Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
3.2 Network Monitoring . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
3.3 Trouble Ticket Tracking and Monitoring . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
3.4 Trouble Escalation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
4. DATABASE MANAGEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
4.1 Data Record Creation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
4.2 Data Transfer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
4.3 Ongoing pANI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
4.4 Error Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
4.5 Reporting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
4.6 Metrics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
4.7 Boundaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
4.8 Event/Transaction Data Base Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
4.9 Escalation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
5. DISASTER MANAGEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
6. CHANGE CONTROL PROCESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
6.1 Change Request Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
7. OTHER SERVICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
7.1 Professional Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
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VERSION 1.0
1/28/98
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Version 1.0 1/28/98
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E911 SYSTEM SUPPLIER RESPONSIBILITY MATRIX APPENDIX 1
[
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AMERITECH CELLULAR SERVICES CONFIDENTIAL 1/28/98 PAGE 1
65
SCC-AMCI E9-1-1 Agreement
EXHIBIT B
CANCELLATION FEE SCHEDULE
In the event AMCI elects to cancel the Agreement in accordance with
Section 3.2.3, AMCI shall pay SCC a Cancellation Fee as described below:
MONTH OF CONTRACT IN
WHICH CANCELLATION
OCCURS CANCELLATION FEE
-------------------- ----------------
1 [ ]
2 [ ]
3 [ ]
4 [ ]
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EXHIBIT B 1 06/19/98
66
EXHIBIT C
SCC PROPRIETARY - USE PURSUANT TO INSTRUCTIONS
MODIFICATION ORDER
ADDENDUM NUMBER _____ TO AGREEMENT BETWEEN
SCC COMMUNICATIONS CORPORATION AND AMERITECH MOBILE COMMUNICATIONS, INC.
PRODUCT NAME (for NEW SERVICES - or ADD-ON SERVICES):
--------------------------------------------------------------------------------
PRODUCT DESCRIPTION:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
IMPLEMENTATION PLAN (See Attachment to this Modification Order)
ANTICIPATED SERVICE START DATE:
------------------------------------------------
NON-RECURRING CHARGES - DESCRIPTION AND AMOUNT:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
MONTHLY RECURRING CHARGES:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
PAYABLE AS OF THE EFFECTIVE DATE: _____________________________________ and
for each month thereafter during the applicable contract Term.
--------------------------------------------------------------------------------
This Modification Order shall be included in the Parties' Contract dated
___________ as if executed concurrently therewith.
AMERITECH MOBILE COMMUNICATIONS, INC. SCC COMMUNICATIONS CORP.
------------------------------------- ---------------------------------
Signature Signature
------------------------------------- ---------------------------------
Printed Name/Title Printed Name/Title
------------------------------------- ---------------------------------
Date Date
--------------------------------------------------------------------------------
Modification Order, Ameritech Mobile 1 06/18/98
67
EXHIBIT D
SCC PROPRIETARY - USE PURSUANT TO INSTRUCTIONS
LETTER OF AGENCY
This Letter Of Agency made and this day ___of ________ , 19___, for the
appointment of SCC Communications Corp. a Delaware Corporation having its
principal offices located at 0000 Xxxxxxx Xxxx, Xxxxxxx, Xxxxxxxx 00000 as
limited agent for Ameritech Mobile Communications, Inc. (AMCI), as set forth
below.
AMCI hereby authorizes SCC Communications Corp. to act on its behalf for its use
and benefit according to the following instructions:
1. SCC Communications Corp. has agreed to provide certain 911 database
coordination services ("Services or the Services") for AMCI. In order for SCC
Communications Corp. to perform such Services, AMCI grants to SCC Communications
Corp. the authority to ask for and request maintaining AMCI's rights to the
Mobile Directory Number Subscriber Information, and daily telephone company
service order update activity used for the purpose of AMCI responding to
requests for emergency services for the Local Exchange Provider (LEC) and Basic
Emergency Service Provider. Subscriber information includes, but is not limited
to, the collection of names, addresses, and mobile directory telephone numbers (
whether published, non-published, listed, or non-listed) for customers of the
LEC and Basic Emergency Provider, and any other information associated with
and/or supporting the data for AMCI's customers.
2. SCC Communications Corp. has the authority to procure, receive and collect
from the LEC, the Subscriber Information, information available by law to AMCI
for the purpose of providing the E9-1-1 Services. SCC Communications Corp. is
responsible for all costs associated with such procurement.
3. SCC Communications Corp. has the authority to acquire on AMCI's behalf,
maintain, and manage the Subscriber Information available by law to AMCI for the
purpose of performing the Services pursuant to and limited by the provisions of
the Contract to which this letter of agency relates.
4. SCC Communications Corp. hereby agrees to perform its duties hereunder in a
diligent manner, and it is understood by SCC Communications Corp. that AMCI may
revoke this letter of agency at any time upon the providing written notice. This
authorization shall remain in force and effect until written notice of
revocation is executed by AMCI or by termination of the Contract to which this
letter of agency relates.
AMCI:
-----------------------------
-----------------------------
-----------------------------
68
EXHIBIT E
AMCI/SignalSoft(TM).MAPS SOFTWARE NON-DISCLOSURE PROVISIONS
4. Non Disclosure and Copies
A. Ameritech shall not disclose, furnish, transfer or otherwise make
available the Licensed Software or any portion thereof to any
third party or duplicate any portion of the Licensed Software,
except as provided in this Agreement or with the prior written
consent of Supplier. Ameritech may disclose and otherwise make
available the Licensed Software to any Affiliate that provides
services to Ameritech in connection with Ameritech's use of the
Licensed Software, and has a need to know in connection with such
services, and such Affiliate shall be subject to the
nondisclosure provisions of this Agreement. Ameritech also may
disclose and otherwise make available the Licensed Software to
third parties retained by Ameritech for temporary administrative,
clerical, technical or programming support, and such third
parties shall be subject to the nondisclosure provisions of this
Agreement.
B. Ameritech shall have the right to make archival and backup copies
of the Licensed Software, at no additional charge. Ameritech may
also reproduce, at no additional charge, the documentation for
Ameritech's own internal use and for the use of Affiliates. Any
such backup copies or reproductions shall include any copyright
or similar proprietary notices contained in the materials being
copied or reproduced.
C. Ameritech shall not reverse engineer, decompile, disassemble or
derive source code from the Licensed Software.
D. If Ameritech fails to abide by its obligations under this
Section, Supplier shall be entitled to immediate injunctive
relief, in addition to any other rights and remedies available to
it under this Agreement.
E. The provisions of this Section shall survive the expiration or
termination of this Agreement and the pertinent Supplement.
