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MASTER PURCHASE AND LICENSE AGREEMENT
This Master Purchase and License Agreement is made as of
October 14, 1996, by and between CELLULAR TECHNICAL SERVICES COMPANY, INC., a
Delaware corporation ("CTS"), and AMERITECH MOBILE COMMUNICATIONS, INC. , a
Delaware corporation doing business as Ameritech Cellular Services
("Customer"). In consideration of the mutual promises and covenants
contained herein and for other good and valuable consideration, the receipt
and sufficiency of which is hereby mutually acknowledged, CTS and Customer
hereby agree as follows:
1. DEFINITIONS. Whenever used in this Agreement, the
following terms shall have the following meanings:
1.1 "Acceptance Test Plan" means either one of the
following plans as the context may require: (i) the Standard Acceptance Test
Plan attached hereto as Schedule E-1; and (ii) the Acceptance Test Plan [*]
attached hereto as Schedule E-2.
1.2 "Agreement" means this Master Purchase and
License Agreement and the attached Schedules, together with all amendments
and supplements which may be made thereto from time to time.
1.3 "Customer Facility" means each MTSO, Cell Site,
or other location within a Licensed Market at which any Component of a System
is installed or to be installed under this Agreement.
1.4 "Cell Site" means a cellular radio base station
location consisting of radio, antenna, and power equipment, which provides
cellular telecommunications service to a particular geographic area, and in
which certain Components of a System are installed in accordance with this
Agreement and an applicable Market Purchase Agreement. The term "Cell Site"
shall exclude mini-cells, micro-cells, and radio frequency (RF) extenders,
except as otherwise set forth in Subsection 8.5, below.
1.5 "Component" means an individual item of the
Hardware or Licensed Programs.
1.6 "Confidential Information" shall have the same
meaning ascribed to such term in the Nondisclosure Agreement.
1.7 "Customization" means any modification,
enhancement, or improvement to any Licensed Program that is made by CTS at
Customer's request in accordance with this Agreement, and which is not made
generally commercially available by CTS to other cellular carrier licensees
in the United States.
1.8 "Documentation" means CTS's standard user
manual(s) for a System and all other written explanatory documentation for a
System which CTS furnishes to Customer for purposes of this Agreement (as the
same may be reasonably modified or updated from time to time by CTS with
notice to Customer). Documentation may include, if applicable, documentation
provided to CTS by its suppliers or licensors to the extent CTS is authorized
by them to provide such documentation to Customer under this Agreement.
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1.9 "Fees" means the monies required to be paid by
Customer to CTS under this Agreement, including without limitation charges
for Hardware, Licensed Programs, out-of-pocket reimbursable expenses, and any
other charges for goods and/or services provided by CTS in connection with
this Agreement.
1.10 "Hardware" means the following with respect to
the System installed or to be installed in a given Licensed Market: (i) the
computer equipment and peripherals (including any operating system software
bundled with such equipment as supplied by the equipment manufacturer)
described in the applicable Market Purchase Agreement for such System in such
quantities as CTS and Customer agree are necessary to operate the initial
configuration of such System; and (ii) any additional computer equipment and
peripherals as CTS and Customer may, from time to time, agree in writing to
add to such System as Hardware.
1.11 "Implementation Schedule" means each mutually
acceptable schedule showing the time periods during which CTS and Customer
will cause appropriate persons to begin and complete delivery, installation,
training, and acceptance testing of particular Components for a System.
1.12 "Infrastructure and Environmental Requirements"
means the physical, electrical, connectivity, and other infrastructure and
environmental requirements described in Documentation furnished by CTS to
Customer (as the same may be reasonably modified or updated from time to time
by CTS with approval by Customer), which requirements are to be satisfied by
Customer at each Customer Facility in accordance with this Agreement.
1.13 "Intellectual Property Rights" means any
patent, copyright, trade secret, trademark, or other intellectual property
right.
1.14 "License" means the license granted to Customer
under Subsection 2.1, below.
1.15 "Licensed Programs" means the following with
respect to the System installed or to be installed in a given Licensed
Market: (i) the CTS-owned computer software (including firmware and
patches), in object code form only, and the Third-Party Software, in object
code form only, described in the applicable Market Purchase Agreement for
such System; (ii) all New Releases, Maintenance Releases, and Customizations
provided by CTS to Customer for such System; and (iii) any additional
software, data tables, and programs as CTS and Customer may, from time to
time, agree in writing to add to such System as Licensed Programs.
1.16 "Licensed Market" means, for each of the market
areas identified in the attached SCHEDULE C, the aggregate of: (i) the
cellular service areas identified in the attached SCHEDULE C for such market
area which are covered by a System installed in accordance with this
Agreement and an applicable Market Purchase Agreement; and (ii) any
additional area as CTS and Customer may, from time to time, agree in writing
to add to this Agreement as a Licensed Market. Customer may, in its
discretion, add to the list of cellular service areas within a market area
identified in the attached SCHEDULE C by providing CTS with notice of such
addition.
1.17 "Maintenance Release" means a correction of
errors, bugs, or defects in the Licensed Programs which is made generally
commercially available by CTS to its cellular carrier licensees in the United
States, and may also include, at CTS's discretion, any minor modification,
enhancement, or improvement to the Licensed Programs.
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1.18 "Market Purchase Agreement" means the agreement
between CTS and Customer specifying the pricing, sizing, configuration, and
Customer's election of available options for the initial configuration of a
System and/or for an expansion of such System. Such agreement shall be based
on the CTS standard form Market Purchase Agreement (as the same may be
reasonably modified or updated from time to time by CTS with approval by
Customer).
1.19 "Mobile Telephone Switching Office" or "MTSO"
means an automatic system which constitutes the interfaces for user traffic
between a cellular network and other public switched networks or other mobile
telephone switching offices within the same network or a central control
center for mobile telephone switching centers.
1.20 "New Release" means any computer program or
portion thereof which involves any modification, enhancement, or improvement
to any Licensed Programs that is: (i) made generally commercially available
by CTS to its cellular carrier licensees in the United States; (ii)
identified by CTS as either a "major" or "minor" new release; and (iii) not
merely a Maintenance Release.
1.21 "Nondisclosure Agreement" means that certain
Bilateral Nondisclosure Agreement dated as of the date of this Agreement,
between CTS and Customer with respect to the protection and security of the
Confidential Information of CTS and Customer, together with all amendments
and supplements which may be made to such Nondisclosure Agreement from time
to time. A copy of the Nondisclosure Agreement is attached hereto as
SCHEDULE H.
1.22 "Roaming Service Agreement" means that certain
Service Agreement for Real-Time Prevention of Roaming Cloning Fraud dated as
of the date of this Agreement between CTS and Customer.
1.23 "Specifications" means the functional
specifications for a System as set forth in the attached SCHEDULE D.
1.24 "Support Services Agreement" means that certain
Support Services Agreement dated as of the date of this Agreement between CTS
and Customer.
1.25 "System" shall mean the combination of the
Hardware and Licensed Programs installed at a single regional processor
complex and at the Cell Sites served by such regional processor complex for
use by Customer within one or more Licensed Markets in accordance with the
terms of this Agreement and applicable Market Purchase Agreements. "Initial
System" means the initial System configuration defined in Subsection 4.3,
below.
1.26 "Third Party" means any person or entity other
than CTS or Customer.
1.27 "Third-Party Software" means the following with
respect to a given System: (i) the computer programs described in the
applicable Market Purchase Agreement which are licensed to CTS by Third
Parties and which CTS sublicenses to Customer, in object code form only, as
part of the Licensed Programs, but for which CTS has no source code rights;
and (ii) any additional software, data tables, and programs as CTS and
Customer may, from time to time, agree in writing to add to such System as
Third-Party Software.
1.28 "Year 2000 Processing" means processing by the
Licensed Programs or other Components of a System, which is dependent upon
usage of calendar dates, including dates on or
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after January 1, 2000. Year 2000 Processing includes, in addition to
software provided by CTS, any third party software embedded in the Components
that manages and/or manipulates data involving dates, including single
century formulas and multi-century formulas. Correct or proper Year 2000
Processing means that the Licensed Programs and Components will not cause an
abnormally ending dating scenario within the application or result in
incorrect values generated involving such dates.
2. LICENSE OF SOFTWARE.
2.1 GRANT OF LICENSE. Subject to the terms of this
Agreement, CTS hereby grants to Customer a non-exclusive, non-transferable
license (the "License") to use the Licensed Programs and Documentation for
the purpose of operating a System for its intended use, as described in the
Specifications, within each Licensed Market. The term of the License granted
above [*] Licensed Programs and Documentation licensed and furnished
hereunder for the purpose of operating Systems installed prior to the
expiration or termination of this Agreement, subject to the terms of
Subsection 14.3, below.
2.2 LICENSE LIMITATIONS.
2.2.1 The License sets forth the entirety
of Customer's rights in connection with the Licensed Programs and
Documentation and all Intellectual Property Rights in connection with the
Licensed Programs and Documentation. Accordingly, Customer shall not: (i)
use the Licensed Programs or Documentation for any purpose other than as
expressly set forth in Subsection 2.1, above; or (ii) permit any Third Party
to use or have access to any Licensed Programs or Documentation without the
express prior written approval of CTS, except for agents of Customer who are
authorized by Customer to use Licensed Programs in accordance with this
Agreement and for whom Customer is responsible under Subsection 10.2, below.
2.2.2 Without limiting the generality of
the foregoing, Customer shall not directly or indirectly do any of the
following (except as expressly set forth in this Agreement or other written
agreement between CTS and Customer): (i) sublicense any rights under the
License; (ii) print or copy the Licensed Programs, other than two (2) back-up
copies for use solely by Customer in accordance with this Agreement; (iii)
print or copy the Documentation, other than copies for use solely by Customer
in accordance with this Agreement and in accordance with the confidentiality
provisions of the Nondisclosure Agreement; (iv) modify or prepare derivative
works of the Licensed Programs or Documentation; (v) reverse engineer,
decompile, disassemble, or otherwise create, or attempt to create, or assist
others to create, the source code form of any Licensed Programs or a product
functionally equivalent to the System or any Licensed Programs, unless
created without the use of any Licensed Programs or other Confidential
Information of CTS; (vi) tamper with, modify, repair, replace, relocate,
connect anything to, or disconnect any Component of a System, except for
normal installation or maintenance of Components performed by
properly-trained personnel in accordance with CTS-approved installation and
maintenance procedures; or (vii) remove, obscure, or alter any Intellectual
Property Right or confidentiality notices or legends appearing in or on any
Licensed Programs or Documentation. In addition, with respect to the notices
and legends described above, Customer shall: (a) ensure that each copy or
reproduction of all or any portion of the Licensed Programs or Documentation
includes all such notices and legends; and (b) upon CTS's reasonable request,
and no more frequently than once per year, provide CTS with access to
Customer's records and facilities at a time agreeable to Customer to audit
and verify Customer's compliance with the terms of this Subsection 2.2.2.
2.3 NEW RELEASES, MAINTENANCE RELEASES, AND
CUSTOMIZATIONS.
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2.3.1 NEW RELEASES. After the initial
installation of a System, CTS will provide all New Releases for such System
to Customer [*] so long as Customer continuously purchases for such System
the software subscription services described in the Support Services
Agreement and Customer is not in breach or default under this Agreement or
the Support Services Agreement. Otherwise, CTS will provide New Releases for
such System to Customer on such terms and conditions and for such Fees as the
parties may mutually agree to in writing. CTS agrees to give Customer
reasonable prior notice in the event that any New Release requires the
purchase of new or additional hardware or software.
2.3.2 MAINTENANCE RELEASES. After the
initial installation of a System, CTS will provide all Maintenance Releases
for such initial System to Customer [*] so long as Customer continuously
purchases for such System the basic support services offered pursuant to the
Support Services Agreement and Customer is not in breach or default under
this Agreement or the Support Services Agreement. Otherwise, CTS will
provide Maintenance Releases for such System to Customer on such terms and
conditions and for such Fees as the parties may mutually agree to in writing.
2.3.3 CUSTOMIZATIONS. Customer may, from
time to time, wish to have certain features of the Licensed Programs
customized to its specifications. CTS shall have the exclusive right to make
and deliver such Customizations. Any work performed to make Customizations,
or to develop or modify any interface with CTS products, shall be on such
terms, conditions, and procedures and for such fees as CTS and Customer may
mutually agree to in writing. The parties agree that the provisions of this
Subsection do not restrict the rights of Customer to develop and make
applications to interface with CTS products.
2.4 CHANGES TO CUSTOMER EQUIPMENT OR SOFTWARE. If
Customer plans to install new or additional switching equipment or software
for its switch, or data networking or other equipment or software, or if
Customer is informed by its provider of switching, interconnection, or other
equipment or software that new or additional equipment or software will be
installed, Customer will notify CTS in writing if such installation could
reasonably be expected to adversely affect a System, as soon as reasonably
possible prior to such installation (but at a minimum Customer will provide
such advance notice as Customer customarily provides other vendors who
interface with its cellular networks). In such notice, Customer will specify
in detail the changes and their effects, if known, and will cooperate with
CTS in determining such effects as soon as practicable after such notice,
and, in any event, prior to such installation. After receipt of the notice
described above, and so long as Customer is not in breach or default under
this Agreement, CTS will use commercially reasonable efforts to determine
whether any modifications are required to the affected System due to any such
new or additional equipment or software and, if such modifications are
required, CTS will use commercially reasonable efforts to provide the same on
such terms and conditions and for such additional fees as the parties may
mutually agree to in writing. Except as the parties otherwise expressly
agree to in writing, the performance warranties set forth in Section 11,
below, will not apply if any Components are adversely affected by any of the
new or additional equipment or software described in this Subsection.
3. SUPPLY OF HARDWARE.
3.1 FROM CTS. Subject to the terms of this
Agreement, CTS hereby agrees to sell, and Customer hereby agrees to buy, the
Hardware described in the applicable Market Purchase Agreement for a given
System in such quantities as CTS and Customer agree are necessary to operate
such System.
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3.2 FROM THIRD PARTIES. Notwithstanding Subsection
3.1, above, Customer may purchase quantities of the CTS-certified Hardware
specified in the attached SCHEDULE B either from CTS or Third Parties
approved in advance and in writing by CTS, subject to the terms of this
Agreement. CTS-certified Hardware purchased from Third Parties will be
subject to an integration Fee as specified in the attached SCHEDULE A. CTS
may, from time to time, update the list of CTS-certified Hardware specified
in SCHEDULE B with written notice to Customer. Except as specifically set
forth herein, CTS shall have no liability with respect to any Hardware
components supplied by any person or entity other than CTS.
4. SYSTEM DEPLOYMENTS.
4.1 COMMITMENTS FOR SYSTEM DEPLOYMENTS.
4.1.1 MINIMUM COMMITMENT. As partial
consideration for [*], as set forth in [*] Customer hereby commits to
purchase from CTS such quantities of Components such that the aggregate size
of all Systems within the Licensed Markets shall be [*] which includes a
minimum purchase of Components for: (i) [*] and (ii) [*] If Customer does
not comply with the foregoing commitments within the corresponding time
periods described above, and such noncompliance is not caused by CTS's
failure to make timely delivery in time to meet such schedule, then CTS may,
at its election and upon written notice to Customer, [*] granted by CTS to
Customer with respect to [*] placed after the date that Customer fails to
comply with this Subsection.
4.1.2 FORECASTS. As of the date of this
Agreement, and at the end of each calendar quarter during the term of this
Agreement, Customer will provide CTS with a written rolling forecast of
Customer's estimated purchases of Components hereunder (in terms of Cell Site
expansion) for the ensuing twelve-month period. ALL FORECASTS ARE FOR
PLANNING PURPOSES ONLY AND ARE NON-BINDING. All forecasts shall be made in
good faith and reflect Customer's best estimates after due consideration.
All purchases hereunder shall be made only pursuant to mutually acceptable
Market Purchase Agreements, as described in Subsection 4.2, below.
4.2 SYSTEM DEPLOYMENTS IN GENERAL. The parties
hereby agree that the initial configuration of a System, and each expansion
of such System, will be deployed for commercial use pursuant to the terms and
conditions of this Agreement and a Market Purchase Agreement (or Addendum
thereto). Each Market Purchase Agreement must be executed by an authorized
representative of Customer and an officer of CTS at the vice president level
or higher. Each System deployment shall: (i) consist of the combination of
the Hardware and Licensed Programs identified in the applicable Market
Purchase Agreement; (ii) be installed at the Customer Facilities and in
accordance with the Implementation Schedule identified in the applicable
Market Purchase Agreement; (iii) be supported pursuant to the support
services options selected by Customer in the applicable Market Purchase
Agreement; (iv) be subject to the Fees and payment terms set forth in Section
9, below, and in the attached SCHEDULE A; and (v) be subject to acceptance
testing in accordance with Section 7, below, and the applicable Acceptance
Test Plan set forth in the attached SCHEDULE E.
4.3 INITIAL SYSTEM DEPLOYMENT. Customer agrees
that, contemporaneously with the execution of this Agreement by the parties,
CTS and Customer will execute a Market Purchase Agreement, pursuant to which
the parties will deploy Customer's first System (the "Initial System")
consisting of [*] for acceptance testing in accordance with: (i) the terms
of Section 7, below; (ii) the Standard Acceptance Test Plan set forth in the
attached Schedule E-1; and (iii) the Acceptance Test Plan [*] set forth in
the attached Schedule E-2. In connection with this deployment: (a) CTS
agrees to use
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best efforts, with Customer's cooperation, to [*] (b) the parties agree that
the Initial System will involve only Cell Sites currently supported by the
System, and will not involve [*] below; (c) Customer may elect, at its
option, to perform the acceptance testing on the Initial System configuration
on [*]; and (d) each party will use commercially reasonable efforts to
complete all acceptance testing on such Initial System by [*] Subject to the
provisions of Section 6, below, if CTS [*], then, for each of such [*] the [*]
applicable to such [*] to those specified under the designation [*] in such
Subsections.
4.4 ADDITIONAL SYSTEM DEPLOYMENTS. As part of the
Market Purchase Agreement described in Subsection 4.3, above, the parties
agree to expand the Initial System by an additional [*] over time, which may
involve the [*.] CTS agrees to [*] in accordance with the following [*]:
[* *
* *
* *
* *
* *
* *
* *
*]
Subject to the provisions of Section 6, below, if CTS [*] the number of [*]
specified above on the corresponding [*] specified above, then, for each of
the [*] after the corresponding [*], the Fees under Subsections 1.1 and 2.1
of the attached SCHEDULE A applicable to such [*] to those specified under
the designation [*] in such Subsections.
4.5 GOVERNING TERMS. This Agreement shall govern
all terms of the license of Licensed Programs and sale of Hardware from CTS,
except as set forth in the applicable Market Purchase Agreement. In no event
shall any terms and conditions of any other document alter or amend any
provision of this Agreement, the applicable Market Purchase Agreement, or
otherwise control, unless CTS and Customer specifically agree in writing that
such terms shall control.
5. DELIVERY AND INSTALLATION.
5.1 DELIVERY.
5.1.1 SHIPMENT. Components to be delivered
by CTS hereunder or under a Market Purchase Agreement will be delivered to a
freight carrier at CTS's facilities in Seattle, Washington U.S.A. or at such
other locations as CTS may specify from time to time. Such Components will
be delivered in accordance with the terms of this Agreement, the applicable
Market Purchase Agreement, and on an Implementation Schedule agreed upon by
both CTS and Customer. CTS reserves the right to make partial shipments and
to make shipments at times convenient to CTS; PROVIDED, that in each case CTS
[*] in all material respects except as otherwise provided under this
Agreement or any other written agreement between CTS and Customer.
5.1.2 TITLE. Title to Hardware purchased
from CTS shall pass to Customer upon CTS's delivery thereof to a freight
carrier at CTS's facilities in Seattle, Washington U.S.A. or at such other
locations as CTS may specify from time to time.
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5.1.3 INSURANCE, SHIPPING CHARGES, AND RISK
OF LOSS. All Fees are F.O.B. at CTS's facilities in Seattle, Washington
U.S.A. In addition to the Fees described in Section 9, below, and in the
attached SCHEDULE A, Customer shall pay all insurance, freight, brokerage,
and handling charges associated with all shipments of Components. Customer
shall insure the contents of such shipments against damage and risk of loss
during shipment and thereafter; however, at [*] request, [*] CTS shall
assume no liability in connection with such shipments; PROVIDED, HOWEVER,
that CTS shall take directions from Customer and otherwise assist Customer in
coordinating such shipments. In the absence of specific written instructions
from Customer, CTS shall select the freight carrier for shipments from CTS,
but such freight carrier shall not be construed as CTS's agent.
5.2 INSTALLATION AND READINESS OF CUSTOMER
FACILITIES.
5.2.1 TECHNICAL MANAGERS. Customer and CTS
shall each designate and provide the other party with the name, address, and
telephone number of one (1) primary and one (1) back up technical manager for
overall coordination between Customer and CTS with respect to the
installation and acceptance of Components for Systems. The initial technical
managers of Customer and CTS for such overall coordination are identified in
the attached SCHEDULE G. Each party shall have the right to replace
technical managers by providing notice of such replacement to the other party.
5.2.2 INSTALLATION. For each installation
of Components at a Customer's MTSO (or other location at which regional
processors for a System are installed or to be installed), CTS will perform
the installation, subject to the terms and conditions of this Agreement and
the Fees set forth in SCHEDULE A. For each installation of Components at a
Cell Site, Customer, at its option, may perform the installation itself or
request that the installation be performed by CTS, subject to the terms and
conditions of this Agreement and the Fees set forth in SCHEDULE A. Prior to
any installation by Customer or any mutually acceptable Third Party, the
installers for such entities must first complete CTS training for such
installation as set forth in the attached SCHEDULE F. CTS and Customer agree
to use commercially reasonable efforts to effect installations of Components
in accordance with the applicable Implementation Schedule. For any
installations conducted by CTS, CTS will [*]Customer will assist CTS as CTS
reasonably requests to ensure [*]. In the event that [*], CTS and Customer
will work together to reach a mutually acceptable solution which [*] is
otherwise acceptable to both parties.
5.2.3 READINESS OF CUSTOMER FACILITIES.
Customer shall maintain Customer Facilities in compliance with the
Infrastructure and Environmental Requirements at all times during the term of
this Agreement. Prior to shipment of any Components by CTS or Third Parties
to any Customer Facility, Customer shall certify compliance with the
Infrastructure and Environmental Requirements with respect to such facility.
If CTS elects to inspect for such compliance, CTS will perform such
inspection in accordance with the Implementation Schedule. If, upon
inspection, CTS determines that the Infrastructure and Environmental
Requirements are not met, CTS will promptly notify Customer, and Customer
shall cure the Infrastructure and Environmental Requirements defects within
[*] of receipt of CTS's notice. If, in the reasonable opinion of CTS, all
Infrastructure and Environmental Requirements are not met within such [*],
then CTS shall be entitled to reschedule the installation and any other
affected items on the Implementation Schedule as is reasonable given the
circumstances. If any delay in meeting the Infrastructure and Environmental
Requirements causes the CTS installers or other personnel to remain longer
than the scheduled installation days, or to make additional trips to Customer
Facilities, then, in addition to the Fees specified in SCHEDULE A, Customer
shall pay all additional travel and lodging expenses approved by Customer and
in accordance with SCHEDULE A, plus CTS's then-current day charge for each
day that each installer or other personnel is required to be at the
installation site beyond the scheduled number of days.
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6. RESCHEDULING.
6.1 RESCHEDULING IN GENERAL. CTS and Customer will
prepare mutually acceptable Implementation Schedules and the parties will
comply with such Implementation Schedules in all material respects. Except
as the parties expressly agree to in writing or as otherwise provided herein,
all modifications or rescheduling of any material item on an Implementation
Schedule shall be [*]. If in CTS's opinion any rescheduling affects other
scheduled shipments or scheduled items on an Implementation Schedule, CTS may
reschedule such other shipments or items as is reasonable given the
circumstances. Customer shall pay CTS's out-of-pocket costs and expenses
attributable to any rescheduling by or due to the fault of Customer,
including without limitation increased costs of Components, all costs and
charges associated with CTS's prepayment of Components and storage charges.
CTS shall pay Customer's out-of-pocket costs and expenses attributable to any
rescheduling by or due to the fault of CTS.
6.2 DELAYS BEYOND REASONABLE CONTROL. If any
Component shipped from CTS is lost or damaged during shipment, CTS will use
best efforts to reschedule a replacement shipment to meet the applicable
Implementation Schedule. CTS shall not be liable for delays in any
Implementation Schedule or any other delivery, shipment, installation, or
acceptance testing of Components due to delays beyond its reasonable control
(but, in any event, the diversion of Components designated for Customer to
fill orders from other customers of CTS shall not constitute grounds for
acceptable delay). In the event of any such delay, all scheduled items on
any Implementation Schedule and other deliveries, shipments, installations,
and acceptance testing of Components affected by such delay shall be extended
for a period equal to the period of the delay, except as the parties
otherwise expressly agree to in writing. If any delivery of Components
material to a System is delayed in excess of [*] due to no fault of CTS [*]
then the exclusive remedy of Customer shall be the right to cancel any
outstanding order under a Market Purchase Agreement affected by such delay.
7. ACCEPTANCE.
7.1 ACCEPTANCE TESTING OF INITIAL SYSTEM. After
installation of the Initial System, representatives of CTS and Customer will
perform acceptance testing upon the Initial System in accordance with both
the Standard Acceptance Test Plan and the Acceptance Test Plan [*] set forth
in the attached SCHEDULE E. Acceptance testing under each Acceptance Test
Plan will commence upon certification by CTS that the Initial System is ready
for testing under such plan (the "Start Date"). Thereafter, CTS and Customer
will conduct acceptance tests using simulated and/or actual data in
accordance with the applicable Acceptance Test Plan for the period set forth
in such Acceptance Test Plan (the "Acceptance Testing Period"). During the
Acceptance Testing Period, Customer may operate and test the Initial System
in accordance with the applicable Acceptance Test Plan, which may include use
of the Initial System in connection with Customer's cellular network for the
purpose of collecting radio frequency "fingerprints." Such use of the
Initial System during the Acceptance Testing Period shall [*] Within [*] the
conclusion of the Acceptance Testing Period, Customer shall complete,
execute, and deliver to CTS a copy of the Acceptance Test Plan (or otherwise
deliver a written notice to CTS), which shall state with specificity whether
the Initial System is accepted or, if not, to what extent the Initial System
does not perform in accordance with the applicable Acceptance Test Plan. The
Initial System will be deemed accepted by Customer if: (i) the applicable
Acceptance Test Plan or notice completed and executed by Customer does not
specify any such non-conformities; (ii) Customer uses the Initial System in
connection with Customer's cellular network for the purpose of both
collecting radio frequency "fingerprints" and interdicting counterfeit call
attempts; or (iii) in the event of a dispute as to the performance of the
Initial System, an executive panel of the parties or an arbitration panel
concludes
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that the Initial System is performing in accordance with the applicable
Acceptance Test Plan, as provided in Subsection 7.3, below.
7.2 CORRECTION OF NON-CONFORMITIES. If the
applicable Acceptance Test Plan or notice described in Subsection 7.1, above,
specifies aspects of the Initial System's performance which do not perform in
accordance with such Acceptance Test Plan (and if the Initial System is not
otherwise deemed accepted by Customer under Subsection 7.1, above), then,
within ten (10) days after CTS's receipt of such executed Acceptance Test
Plan or notice, CTS will submit to Customer a written action plan, which will
outline CTS's proposed course of action for resolution of the
non-conformities and a timetable for re-testing the Initial System in
accordance with Subsection 7.1, above. Within ten (10) days after CTS's
submission of the proposed action plan, the parties will agree on a final
action plan, and CTS will thereafter work diligently to implement such final
action plan. Customer will make available to CTS all resources and
facilities reasonably necessary to implement the final action plan, and will
fully cooperate with CTS's efforts. Upon the conclusion of a re-testing
period specified in the final action plan, Customer shall complete and
execute a copy of the applicable Acceptance Test Plan (or final action plan)
or notice in the manner specified in Subsection 7.1, above. The provisions
of Subsection 7.1, above, shall apply to determine whether the Initial System
is deemed accepted by Customer after such re-testing. If CTS is unable to
correct the non-conformities within the timetables and re-testing periods
described in the final action plan so that the Initial System performs in
accordance with the applicable Acceptance Test Plan, then Customer may, at
its election, either: (i) terminate the License and the obligations of the
parties hereunder as it applies to the Initial System by providing CTS with
written notice of termination within thirty (30) days after expiration of the
timetables and re-testing periods described in the final action plan, or
within such other time period as the parties mutually agree to in writing; or
(ii) retain the non-conforming Initial System if, within the time period for
providing the notice of termination specified in clause (i), above, the
parties mutually agree in writing on [*]. In addition, if, pursuant to this
Subsection, [*] and the obligations of the parties hereunder with respect to
the Initial System, [*]with respect to the Initial System [*] that all
Components of the Initial System have been [*].
7.3 RESOLUTION OF DISPUTES OVER ACCEPTANCE.
7.3.1 The parties agree to settle any
dispute arising out of the acceptance testing provisions described in this
Section 7 through consultation and negotiation in good faith and in the
spirit of mutual cooperation. Accordingly, if, after the conclusion of any
Acceptance Testing Period or re-testing period described in this Section 7,
the parties dispute whether the Initial System is performing in accordance
with the applicable Acceptance Test Plan, the parties agree to meet to try to
resolve the dispute within fourteen (14) days after one party delivers a
written request for a meeting to the other party. Such meeting shall be
attended by individuals with decision-making authority to attempt, in good
faith, to negotiate a resolution of the dispute prior to pursuing other
available remedies. If, within fourteen (14) days after such meeting, the
parties have not succeeded in negotiating a resolution of the dispute, then
either party may commence arbitration under Subsection 7.3.2, below, by
delivering a written demand for arbitration to the other party.
7.3.2 If either party commences arbitration
in the manner described above, the dispute will be subjected to binding
arbitration before a panel of three (3) independent arbitrators. Such
arbitration shall be held in [*], in accordance with the then-current rules
of the Center for Public Resources, Institute for Dispute Resolution, as
modified to be consistent with this Subsection. Such arbitrators shall be
selected by mutual agreement of the parties, or failing such agreement within
thirty (30) days after delivery of the original written demand for
arbitration, each party shall select one
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arbitrator and the two selected arbitrators shall mutually agree upon the
selection of a third arbitrator within forty-five (45) days from delivery of
the original written demand for arbitration. The arbitrators shall have the
authority to require the submission (at a hearing or otherwise) of such
documents, information, testimony, and other items as the arbitrators may
deem necessary to make a fair and reasonable decision. Within sixty (60)
days after the appointment of the arbitrators, the arbitrators will render a
written decision. The arbitrators shall be limited to addressing the issues
in dispute arising out of the acceptance testing provisions described in this
Section 7 and interpreting the applicable provisions of this Agreement and
the applicable Market Purchase Agreement in connection with such issues. The
parties agree that the System shall be deemed accepted for purposes of this
Agreement if the arbitrators conclude that the System is materially
performing in accordance with the applicable Acceptance Test Plan. A
judgment upon the award rendered by the arbitrators may be entered in any
court having jurisdiction thereof and shall constitute a final adjudication
of all matters submitted to arbitration. The costs of all arbitration
services, however, shall be shared equally by the parties.
7.4 APPLICATION TO SUBSEQUENT INSTALLATIONS. The
provisions of this Section 7 shall also apply to the acceptance of Components
installed on a System after installation of the Initial System, except that:
(i) CTS and Customer shall only test the newly-installed Components as part
of a System in accordance with the terms of the Standard Acceptance Test
Plan; (ii) Customer may reject such newly-installed Components in the manner
described in Subsection 7.1; (iii) CTS shall correct any non-conformities in
the manner described in Subsection 7.2; and (iv) if CTS does not correct such
non-conformities within the designated timetables and re-test periods, then
Customer may, at its election, either: (a) terminate the obligations of the
parties only with respect to such newly-installed Components by providing CTS
with written notice of termination within thirty (30) days after expiration
of the designated timetables and re-testing periods, or within such other
time period as the parties mutually agree to in writing, or (b) retain such
non-conforming new Components if, within the time period for providing the
notice of termination specified in clause (a), above, the parties mutually
agree in writing on [*].
8. TRAINING, SUPPORT, AND OTHER SERVICES.
8.1 TRAINING SERVICES. CTS will provide the
training classes set forth in the attached SCHEDULE F for Customer for the
applicable Fees described in SCHEDULE A and in accordance with the applicable
Implementation Schedule. Upon request, CTS will provide additional training
upon such terms and conditions and for such Fees as the parties may mutually
agree to in writing.
8.2 SUPPORT SERVICES. Subject to the terms of this
Agreement, CTS will offer software and hardware maintenance services, System
monitoring services, and software subscription services for each System,
pursuant to the Fees and other terms set forth in the Support Services
Agreement. Customer will select support for each System as set forth in the
Support Services Agreement. Such selection will be made as part of the
applicable Market Purchase Agreement for such System.
8.3 SOURCE CODE. CTS will deposit into escrow and
maintain throughout the term of the License one (1) copy of the source code
for the CTS-owned Licensed Programs (I.E., only Licensed Programs to which
CTS has source code rights) in Seattle, Washington, pursuant to CTS's
standard form Source Code Escrow Agreement among CTS, Customer, and an escrow
holder approved by CTS and Customer.
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8.4 ROAMING FRAUD PREVENTION SERVICES. Subject to
the terms of this Agreement, CTS will provide services to Customer for the
real-time prevention of cellular roaming cloning fraud, pursuant to the terms
and conditions and for the fees set forth in the Roaming Service Agreement.
8.4 [*] CTS will *] to Customer the [*] and
Customer will assist CTS in such endeavor. Customer understands and agrees
that CTS must [*]connected to appropriate Components of the Initial System [*]
in order to [*]
8.6 [*] CTS will commence [*] to determine whether
the [*] CTS will [*] and then [*] and [*] From such [*] CTS will [*] and an
initial [*]
9. COMPENSATION.
9.1 FEES. In consideration for the rights,
warranties, and covenants provided by CTS hereunder, Customer hereby agrees
to pay the Fees specified in the attached SCHEDULE A when due as set forth in
such Schedule.
9.2 STANDARD TERMS.
9.2.1 In addition to the Fees and other
charges required to be paid by Customer to CTS hereunder, Customer shall pay
(or, at CTS's election, reimburse CTS) for all network interconnection costs,
switch interconnection and interface charges, and System telecommunications
costs charged by Third Parties, and all federal, state, and local taxes and
withholding requirements in connection with the transactions contemplated by
this Agreement and each Market Purchase Agreement (excluding taxes based on
CTS's net income or its authority to do business within a given state). Such
taxes specifically include, without limitation: (i) excise, sales, use and
royalty taxes, withholding taxes and related requirements, value-added taxes,
all similar taxes and charges now in effect or enacted in the future; and
(ii) all interest and penalties which may result from the failure to pay any
of such taxes or charges. If CTS receives any notice of deficiency with
respect to any such taxes or charges, CTS will promptly deliver notice
thereof to Customer so that Customer may have a reasonable opportunity to
contest such tax and any related interest and penalties.
9.2.2 Except as otherwise expressly set
forth in this Agreement or any Schedule hereto: (i) CTS will invoice
Customer for amounts to be paid hereunder, and Customer will pay such invoice
within [*], provided that if Customer disputes an invoice, Customer's payment
of any undisputed portion of the invoice shall not waive any of its right
with respect to the disputed portion of the invoice; (ii) Customer shall not
be entitled to the return or reimbursement of any compensation paid to CTS
pursuant to this Agreement; and (iii) all Fees and other charges hereunder
shall be paid to CTS in immediately available funds in United States Dollars.
10. PROPRIETARY RIGHTS.
10.1 INTELLECTUAL PROPERTY RIGHTS.
10.1.1 The License shall not transfer any
title to or ownership in the Licensed Programs or Documentation, or any
Intellectual Property Rights in connection with the Licensed Programs and/or
Documentation, from CTS to Customer. Accordingly, subject only to the
License, all right, title, and interest in and to the Licensed Programs and
Documentation, and all Intellectual Property Rights in connection with the
Licensed Programs and/or Documentation, are and
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shall at all times remain the exclusive property of CTS or its licensor(s).
Except as otherwise expressly set forth in this Agreement, CTS may use, sell,
assign, transfer and license rights relating to the Licensed Programs and/or
Documentation to any Third Party for any purpose free from any claim of
Customer.
10.1.2 Nothing in this Agreement shall be
construed to grant any party any right, title or interest in any patent,
copyright, trademark, trade secrets or other proprietary information of the
other party, other than those rights explicitly granted herein. Except as
otherwise provided herein, each party agrees not to use any name, trade name,
trademark or other designation of the other party without the other party's
prior written consent.
10.2 CONFIDENTIAL INFORMATION. The parties
acknowledge that each party may disclose additional Confidential Information
to the other party or its representatives in furtherance of the transactions
contemplated by this Agreement. Therefore, notwithstanding anything to the
contrary, the Nondisclosure Agreement is hereby amended such that all
Confidential Information of a party disclosed to the other party or any of
its representatives at any time during the term of this Agreement shall be
considered Confidential Information of the disclosing party and shall be
subject to the operative provisions of the Nondisclosure Agreement. Customer
hereby agrees to ensure that each of its representatives who receives
Confidential Information of CTS complies with the terms of the Nondisclosure
Agreement, as amended hereby, to the same extent as if such representative
had executed the Nondisclosure Agreement, as amended. CTS hereby agrees to
ensure that each of its representatives who receives Confidential Information
of Customer complies with the terms of the Nondisclosure Agreement, as
amended hereby, to the same extent as if such representative had executed the
Nondisclosure Agreement, as amended. All Confidential Information of CTS is
and shall at all times remain the exclusive property of CTS, and all
Confidential Information of Customer is and shall at all times remain the
exclusive property of Customer. For purposes of this Subsection,
"representatives" means the officers, directors, employees, agents, and
affiliates of a party.
11. WARRANTIES.
11.1 INTELLECTUAL PROPERTY RIGHTS.
11.1.1 CTS hereby warrants to Customer that,
subject to the provisions of Subsection 12.1.5, below, each System furnished
by CTS hereunder, if used by Customer in accordance with the terms of this
Agreement, is free of any valid claim by a Third Party that the System
violates, infringes, or misappropriates a United States Intellectual Property
Right of such Third Party. Customer's exclusive remedy for breach of the
warranty set forth in this Subsection 11.1.1 is set forth in Subsection 12.1,
below.
11.1.2 CTS hereby [*] Customer acknowledges
that[*] In addition to the warranty set forth in Subsection 11.1.1, above,
and the indemnification set forth in Subsection 12.1, below, [*] (i) [*]
discussions and negotiations with the [*] for an [*] in which [*] in exchange
for [*], considering all relevant information; and (ii) within a reasonable
period of time after the date of this Agreement, [*] for so long as Customer
has [*] (b) [*] for so long as Customer has [*], and (c) [*] for so long as
Customer has [*]and, once such [*]
11.2 SOFTWARE PERFORMANCE. For each System, CTS
hereby warrants to Customer that the Licensed Programs (excluding the
Third-Party Software), when used in conjunction with the Hardware necessary
for operation of such System and with Customer's properly-operating cellular
network, and when all relevant Infrastructure and Environmental Requirements
are satisfied, will
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materially perform in accordance with their Specifications [*] of such
Licensed Programs by Customer as set forth in the applicable provisions of [*]
Customer's exclusive remedy for breach of such warranty (without limiting any
other remedy expressly set forth herein including, without limitation, the
remedies set forth in Subsection 11.4, below) shall be correction by CTS, at
no additional charge to Customer, of any errors or malfunctions in such
Licensed Programs found not to be in compliance with such warranty, in
accordance with the terms of the Support Services Agreement; PROVIDED,
HOWEVER, that CTS shall have no obligation to make such corrections if
Customer is in breach or default under this Agreement or if Customer fails to
promptly notify CTS upon discovery of such errors or malfunctions. If a
correction of an error or malfunction is commercially impractical, CTS may
provide Customer with a commercially reasonable circumvention of such error
or malfunction. For Third-Party Software, CTS will pass through to Customer
the warranties that CTS receives from its vendor for such Third-Party
Software, and will assist Customer in the enforcement of such warranties.
11.3 HARDWARE PERFORMANCE. For each System, CTS
hereby warrants to Customer that the CTS-proprietary Hardware purchased from
CTS for installation in Cell Sites, when used in conjunction with the
Licensed Programs necessary for operation of such System and with Customer's
properly-operating cellular network, and when all relevant Infrastructure and
Environmental Requirements are satisfied, will materially perform in
accordance with their Specifications [*] of such Hardware by Customer as set
forth in the applicable provisions of [*] Customer's exclusive remedy for
breach of such warranty (without limiting any other remedy expressly set
forth herein including, without limitation, the remedies set forth in
Subsection 11.4, below) shall be either repair or replacement by CTS, at its
expense and in its discretion, of any of such Hardware found not to be in
compliance with such warranty, in accordance with the terms of the Support
Services Agreement; PROVIDED, HOWEVER, that CTS shall have no obligation to
repair or replace such Hardware if Customer is in breach or default under
this Agreement or if Customer fails to promptly notify CTS upon discovery of
such errors or malfunctions. For all other Hardware components purchased
from CTS, CTS will pass through to Customer the warranties that CTS receives
from its vendor for such Hardware components, and will assist Customer in the
enforcement of such warranties.
11.4 [*] CTS hereby warrants to Customer that [*]
by Customer hereunder will [*] so long as all terms and conditions set forth
in [*]. The parties shall [*] with this [*] by performing the [*] set forth
in the attached [*] Such [*] after Customer's [*] but no more frequently [*]
If CTS breaches the foregoing warranty with respect to [*] then Customer
shall provide CTS with written notice of such breach, which notice shall
include a detailed report providing evidence of the breach and Customer
certification that [*] all terms and conditions set forth in [*] CTS shall
have an opportunity to cure such breach and [*] under the attached [*] within
[*] after CTS's receipt of Customer's notice of breach. Customer shall
provide such assistance and [*] as CTS reasonably requests in connection with
such cure [*] The final [*] shall be as follows: (i) the [*] by the parties
during the [*] if such [*]; or (ii) the [*] by the parties during the [*] if
such [*]. If, according to such [*], CTS [*] within the applicable [*],
then, as [*] exclusive remedy for such breach, [*]
11.4.1 For [*] of this Agreement, [*] as
follows: (i) if the [*] for the [*] described in the attached [*] is not [*]
as described in such Schedule, then [*]; and (ii) if the [*] for the [*]
described in the attached [*] is not [*] as described in such Schedule, then
[*] with respect to such calendar month.
11.4.2 For [*] of this Agreement, [*]: (i)
if the [*]described in the attached [*] is not [*] as described in such
Schedule, then [*]with respect to such calendar month; and
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(ii) if the [*] described in the attached [*] is not [*] as described in such
Schedule, then [*] with respect to such calendar month.
11.4.3 For [*] of this Agreement, [*] (i)
if the [*]described in the attached [*] is not [*] as described in such
Schedule, then [*]; and (ii) if the [*] described in the attached [*] is [*]
as described in such Schedule, then [*]. CTS's aggregate [*] under this
Subsection 11.4.3 for a given [*] with respect to such calendar month.
11.5 YEAR 2000 PROCESSING. CTS warrants that any
version of the Licensed Programs or other Components licensed hereunder shall
properly perform Year 2000 Processing. In the event of a breach of this
warranty, CTS agrees to [*] Customer by: (i) correcting the version of the
Licensed Programs of other Components currently used by Customer so as to
make them capable of correctly performing Year 2000 Processing; or (ii)
providing replacement software for the Licensed Programs or other Components
which is equivalent in function to the Licensed Programs or other Components
and which correctly performs Year 2000 Processing. If, after using best
efforts, [*] either of the foregoing options [*] of Customer's notification
to CTS of any failure of the Licensed Programs or other Components to
correctly perform Year 2000 Processing, [*] arising from any [*] to perform
Year 2000 Processing with respect to the Licensed Programs or other
Components. Notwithstanding anything to the contrary set forth in this
Agreement, CTS's breach of this warranty shall not be subject to any
provisions regarding limitations of CTS's liability set forth in this
Agreement.
11.6 INSURANCE. In addition to CTS's obligations
described in Subsection 11.1.2 above, CTS will maintain during this
Agreement: (i) worker's compensation insurance as prescribed by applicable
law; (ii) employer's liability insurance or other like insurance with limits
of at least [*]; (iii) commercial general liability insurance (including
without limitation contractual and products liability coverage) with combined
single limits of each occurrence of at least [*]; and (iv) electronics errors
and omissions insurance with limits of at least [*]. Upon written request by
Customer, CTS will furnish a copy of certificates evidencing the foregoing
insurance coverage. CTS's purchase of insurance shall not in any way limit
CTS's liability under this Agreement.
11.7 NO WARRANTIES OTHER THAN EXPRESS WRITTEN.
EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 11, CTS MAKES NO
REPRESENTATIONS, WARRANTIES, OR GUARANTIES OF ANY KIND (INCLUDING WITHOUT
LIMITATION PERFORMANCE WARRANTIES), EITHER EXPRESS OR IMPLIED, ORAL OR
WRITTEN, WITH RESPECT TO THE SYSTEM, HARDWARE, LICENSED PROGRAMS,
DOCUMENTATION, OR ANY OTHER ITEMS OR SERVICES COVERED BY OR FURNISHED UNDER
THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY (I) OF
MERCHANTABILITY, (II) OF FITNESS FOR A PARTICULAR PURPOSE, OR (III) ARISING
FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE.
12. INDEMNIFICATION.
12.1 IP CLAIMS.
12.1.1 For purposes of this Section 12, the
term "IP Claim" means any claim brought by a Third Party against Customer
which alleges that use or possession of a System violates, infringes, or
misappropriates a United States Intellectual Property Right of such Third
Party.
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12.1.2 Subject to the terms of this
Agreement, CTS shall indemnify and hold harmless Customer and its officers,
directors, employees, agents, assigns and successors from and against any
losses, damages, liability, and expenses awarded by final judgment against
such indemnified persons as a result of an IP Claim, or, if any compromise or
settlement is made with respect to such IP Claim, CTS shall pay all amounts
agreed to by CTS in settlement of such IP Claim. CTS shall, at its expense,
defend and, at its sole discretion, settle any such IP Claim. Customer, at
its own expense, shall have the right to participate in the defense of any
suit or proceeding involving an IP Claim through counsel of its choosing.
However, CTS shall have at all times the full and complete authority to
defend and settle such IP Claim.
12.1.3 Customer shall provide CTS with
prompt written notice of any IP Claim, together with copies of all related
court documents involving such IP Claim. Customer's failure to provide
timely notice to CTS of any such IP Claim shall not relieve CTS from any
liability under this Subsection 12.1 with respect to such claim, to the
extent that CTS is not prejudiced by such failure. CTS shall keep Customer
advised of the status of any such IP Claim and of its defense and/or
negotiation efforts. Customer shall provide CTS with such information and
assistance for the defense of such IP Claim as is reasonably requested by CTS.
12.1.4 If, in any proceeding involving an IP
Claim, a System is held to constitute a violation, infringement, or
misappropriation of a Third Party's United States Intellectual Property Right
and use of such System is enjoined, or if in CTS's opinion any such
violation, infringement, or misappropriation is likely to occur, CTS, at its
option and expense, will either: (i) obtain the right for Customer to
continue use of the System by license, release from claim of infringement, or
by other appropriate means; (ii) modify the System to make it non-infringing
but continue to perform in accordance with the Specifications in all material
respects; (iii) replace the System with a non-infringing system of like
functionality which performs in accordance with the Specifications in all
material respects; or (iv) if election of any of clauses (i), (ii) or (iii)
are impractical in CTS's reasonable judgment, after using reasonable efforts
for a reasonable period of time under the circumstances, CTS may terminate
this Agreement and the License granted herein with respect to such System by
providing Customer with written notice of such termination. If, pursuant to
clause (iv) above, CTS terminates this Agreement and the License with respect
to a System, then (a) Customer shall, at CTS's request and expense, either
promptly return the System to CTS or destroy the same; (b) Customer shall be
entitled to a refund equal to the License Fees and Hardware Fees described in
SCHEDULE A which specifically pertain to such System and which Customer
actually paid to CTS, which refund CTS may reduce by a reasonable sum for
use, depreciation, and amortization [*]; and (c) each party shall release the
other party from all future payments and other obligations under this
Agreement and the Support Services Agreement with respect to such System,
except for the obligations described in this Subsection 12.1 and Subsection
14.4, below, and any other provision which by its terms survives termination
hereof. [*]
12.1.5 Notwithstanding anything to the
contrary, CTS shall have no liability under Sections 11 or 12 of this
Agreement for any IP Claim which: (i) pertains to a System which has been
materially altered or modified by Customer or any of its officers, directors,
employees, agents, subcontractors, assigns or successors without CTS's prior
written approval, unless the use of an unaltered or unmodified version of the
System is shown to constitute an infringement; or (ii) pertains to any
Third-Party Software or Hardware (other than Cell Site Hardware purchased
from CTS for installation in Cell Sites) that is the sole basis of such
infringement.
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12.1.6 The remedies set forth in this
Subsection 12.1 are Customer's exclusive remedies in connection with any IP
Claim.
12.2 OTHER INDEMNIFICATION.
12.2.1 Each party (the "Indemnifying Party")
shall defend, indemnify, and hold harmless the other party and its officers,
directors, employees, agents, successors and assigns (collectively, the
"Indemnified Parties") from and against any losses, damages, liability, and
expenses awarded by final judgment against such Indemnified Parties arising
from any claim alleging injury to any person, including death, or damage to
property, including theft, to the extent directly resulting from the acts or
omissions of the Indemnifying Party or its officers, directors, employees,
agents, successors or assigns, whether negligent or otherwise, or, if any
compromise or settlement is made with respect to such claim, the Indemnifying
Party shall pay all amounts agreed to by the Indemnifying Party in settlement
of such claim. The Indemnifying Party shall, at its sole expense, defend
and, at its sole discretion, settle any such claim. The Indemnified Party,
at its own expense, shall have the right to participate in the defense of any
such claim through counsel of its choosing. However, the Indemnifying Party
shall have at all times the full and complete authority to defend and settle
such claim.
12.2.2 The Indemnified Party shall provide
the Indemnifying Party with prompt written notice of any of the claims
described in Subsection 12.2.1, above, brought against an Indemnified Party,
together with copies of all related court documents involving such claim. An
Indemnified Party's failure to provide timely notice to the Indemnifying
Party of any such claim shall not relieve the Indemnifying Party from any
liability under this Section 12.2 with respect to such claim, to the extent
that the Indemnifying Party is not prejudiced by such failure. The
Indemnifying Party shall keep the Indemnified Party advised of the status or
any such claim and of its defense and/or negotiation efforts. The
Indemnified Party shall provide the Indemnifying Party with such information
and assistance for the defense of such claim as is reasonably requested by
the Indemnifying Party.
13. PROSECUTION OF INFRINGEMENT CLAIMS. CTS shall have
the exclusive right to take all actions, control all litigation or other
proceedings, and negotiate and enter into all settlements with respect to any
infringement of any of CTS's Intellectual Property Rights, as CTS deems
necessary or appropriate to protect CTS's Intellectual Property Rights,
except as CTS and Customer may otherwise agree to in writing. Customer
agrees to provide to CTS, at CTS's expense, reasonable information and
assistance in connection with the prosecution of such infringement as
reasonably requested by CTS. Any recovery of damages or attorneys' fees in
connection with any such action, or in settlement of any such action, will
belong entirely to CTS. CTS will have no obligation to institute suit
against any particular person or entity for infringement of any Intellectual
Property Rights of CTS.
14. TERM AND TERMINATION.
14.1 TERM. The term of this Agreement commences on
the date of this Agreement and will continue thereafter for [*]. This
Agreement may be extended for a mutually agreeable renewal term, provided
that Customer and CTS expressly agree to such extension in writing. All
terms and conditions hereof shall remain in effect during any renewal term,
except as the parties otherwise expressly agree to in writing.
Notwithstanding the above, this Agreement shall terminate upon the occurrence
of any of the events described in the termination provisions set forth below.
14.2 TERMINATION.
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14.2.1 MATERIAL BREACH AFTER NOTICE. Except
as otherwise set forth in this Agreement, upon material breach or default
under this Agreement by any party (the "breaching party"), if the other party
("non-breaching party") gives written notice of such breach or default and
the same is not cured within thirty (30) days after delivery of such notice,
then, without limitation of any other remedy available hereunder, the
non-breaching party may terminate this Agreement by delivery of a notice of
termination at any time thereafter before such breach or default has been
cured.
14.2.2 IMMEDIATE TERMINATION.
Notwithstanding anything to the contrary, this Agreement and the License may
be immediately terminated upon written notice: (i) at CTS's option in the
even that Customer materially violates any of the provisions of Subsection
2.2 in any way without the prior written consent of CTS, and Customer fails
to cure such violation within (3) days after CTS's delivery of notice of
breach to Customer; or (ii) at the option of either party in the event that
the other party materially violates the Nondisclosure Agreement or any of the
provisions of Subsection 10.2, and the breaching party fails to cure such
violation in accordance with any applicable cure periods set forth in the
Nondisclosure Agreement.
14.2.3 MUTUAL CONSENT. CTS and Customer may
terminate this Agreement and the License by mutual written consent.
14.3 EFFECT OF EXPIRATION OR TERMINATION.
14.3.1 Following the expiration or
termination of this Agreement, Customer shall [*] with respect to the
configuration of Systems installed as of the expiration or termination of
this Agreement, [*] any of the following: (i) if this Agreement is
terminated pursuant to Subsections 14.2.1 or 14.2.2 due to a breach or
default by Customer, [*] upon termination of this Agreement; or (ii) if this
Agreement expires, is terminated due to the events described in Subsection
14.2.3, or is terminated pursuant to Subsection 14.2.1 due to a breach or
default by CTS, then [*] breach or default by Customer under any of the
survival terms described in Subsection 14.4, and the expiration of any
applicable cure period with respect to such breach or default.
14.3.2 Upon the expiration or termination of
this Agreement, each party shall immediately cease use of the Confidential
Information of the other party [*] and shall, at the disclosing party's
election, either: (i) return to the disclosing party the original and all
copies of the same, in whole or in part, in any form, including partial
copies and modifications, and any related materials received from the
disclosing party, or (ii) furnish to the disclosing party a certified
executed document stating that the same has been destroyed. Upon the
termination of the License, Customer shall immediately return or destroy all
copies of Licensed Programs and Documentation retained for use pursuant to
Subsection 14.3.1, above, in accordance with the procedures set forth in this
Subsection.
14.3.3 Customer shall pay all accrued and
unpaid Fees and other charges hereunder within [*] after the termination of
this Agreement.
14.4 SURVIVAL TERMS. Upon termination of this
Agreement, all obligations of the parties hereunder shall cease, except those
obligations described in Sections 2.2, 10, 12, 13, 14, 15, and 16, which
provisions shall survive the termination of this Agreement. Termination of
this Agreement shall not be construed to waive or release any claim which a
party is entitled to assert at the time of such termination, and the
applicable provisions of this Agreement shall continue to apply to such claim
until it is resolved.
MASTER PURCHASE AND LICENSE AGREEMENT PAGE 18
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15. LIMITATION OF LIABILITY. EXCEPT FOR ANY BREACH OF
SECTIONS 2.2 OR 10 HEREOF OR IN THE EVENT OF INDEMNIFICATION PURSUANT TO
SECTIONS 11.5 OR 12 HEREOF, EACH OF THE PARTIES' SOLE AND EXCLUSIVE REMEDY
FOR LOSS OR DAMAGE CAUSED BY, RELATED TO, OR ARISING FROM ANY ACT OR OMISSION
OF THE OTHER PARTY IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE FORM
OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY
OR OTHERWISE, EVEN IF AN AUTHORIZED REPRESENTATIVE OF THE OTHER PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF THE SAME AND REGARDLESS OF
FORESEEABILITY), SHALL BE THE RECOVERY OF ACTUAL DAMAGES IN AN AMOUNT NOT TO
EXCEED [*]. EXCEPT IN THE EVENT OF ANY BREACH OF SECTIONS 2.2 OR 10 HEREOF,
NEITHER PARTY SHALL BE LIABLE HEREUNDER FOR ANY DAMAGES RESULTING FROM LOSS
OF USE, DATA, PROFIT, BUSINESS, REVENUE, OR GOODWILL, OR FOR ANY SPECIAL,
INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, WHETHER
ARISING IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE OR STRICT
LIABILITY) OR OTHERWISE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH LOSS OR DAMAGE.
16. MISCELLANEOUS.
16.1 NOTICES. All notices hereunder by either party
shall be given by personal delivery (including by a reputable courier
service) or by sending such notice by United States certified mail return
receipt requested, postage prepaid, and addressed as set forth on the
signature page of this Agreement. Such notices shall be deemed to have been
given and delivered upon receipt and the date of receipt identified by the
United States Postal Service on any return receipt card shall be conclusive
evidence of receipt. Notices may also be transmitted by facsimile or
telecopy machine, and such notices shall be deemed received when transmitted
if: (i) a document is electronically generated by the transmitting machine
confirming that the transmission was received; and (ii) the party
transmitting the notice deposits such notice the same day with a reputable
courier service providing delivery not later than the following business day.
Any party, by written notice to the other as above described, may alter the
address for receipt by it of written notices hereunder.
16.2 INDEPENDENT CONTRACTORS. It is expressly
agreed that CTS and Customer are acting hereunder as independent contractors
and under no circumstances shall any of the employees of one party be deemed
the employees of the other party for any purpose. Nothing in this Agreement
shall be deemed to constitute, create, or in any way be interpreted as a
partnership, joint venture, franchise, or other formal business organization
involving CTS and Customer, nor shall anything in this Agreement be deemed to
constitute one party the employee or agent of the other party. Neither CTS
nor Customer shall have any authority under this Agreement to bind, obligate,
or otherwise commit the other party to any agreement or transaction for any
purpose whatsoever.
16.3 EXCUSED PERFORMANCE. Neither party shall be
liable for, or be considered to be in breach or default under this Agreement
as a result of, any delay or failure to perform as required hereunder which
is due to any cause or condition beyond such party's reasonable control.
16.4 PUBLICITY. Neither party shall disclose to any
Third Party the terms of this Agreement or the existence of this Agreement
without the express written consent of the other party; PROVIDED, HOWEVER,
that either party may make public announcements concerning the terms of this
Agreement or the existence of this Agreement without such express written
consent of the other party if the announcement is necessary for such party to
comply with the requirements of the United States
MASTER PURCHASE AND LICENSE AGREEMENT PAGE 19
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Securities and Exchange Commission, any other governmental agency, any court
of competent jurisdiction, or applicable law or regulation.
16.5 ASSIGNMENT. Neither party shall assign any of
its rights or obligations hereunder (in whole or in part) without the express
written consent of the other party, which consent shall not be unreasonably
withheld. Notwithstanding the foregoing, each party may, upon notice to the
other party, assign this Agreement and all of its rights and obligations
hereunder (in whole but not in part) to any of its affiliates capable of
performing its obligations hereunder. Any attempt by any party to assign or
transfer any of its rights or obligations under this Agreement in violation
of this Subsection shall be considered void and shall be deemed a material
breach of this Agreement. Subject to the foregoing, this Agreement will be
fully binding upon, inure to the benefit of and be enforceable by the parties
hereto and their respective successors and assigns.
16.5 SUBCONTRACTORS. Notwithstanding anything to
the contrary, CTS may in its discretion subcontract the performance of any of
its obligations hereunder or under any Market Purchase Agreement to any Third
Party; PROVIDED, that CTS's subcontractors shall perform to the same
standards imposed upon CTS hereunder and CTS shall be liable for the conduct
of its subcontractors to the same extent as CTS's own liability under this
Agreement. Upon request, CTS will provide Customer with a list of such
subcontractors.
16.7 SEVERABILITY. In the event any provision
hereof shall be deemed invalid or unenforceable by any court or governmental
agency of competent jurisdiction: (i) such provision shall be deemed severed
from this Agreement and all remaining provisions shall be afforded full force
and effect as if such severed provision had never been a provision hereof;
and (ii) the parties shall negotiate in good faith to replace the
unenforceable provision with an enforceable provision which so far as
possible achieves the same economic and other benefits for the parties as the
unenforceable provision was intended to achieve.
16.8 NO WAIVER. No consent or waiver, express or
implied, by any party to or of any breach or default by the other in the
performance by the other of its obligations hereunder shall be deemed or
construed to be a consent or waiver to or of any other breach or default in
the performance by such other party of the same or any other obligations of
such party hereunder.
16.9 GOVERNING LAW. This Agreement shall be
governed by, subject to, and interpreted in accordance with the laws of the
state of Delaware, without regard to conflict of laws principles.
16.10 INJUNCTIVE RELIEF. The parties recognize
and agree that money damages are an inadequate remedy for breach of Sections
2.2 and/or 10, above, and further recognize that such breach would result in
irreparable harm to the party against whom such breach is committed.
Therefore, in the event of a breach or threatened breach of any such
provision, the non-breaching party shall be entitled to injunctive relief
(without the posting of any bond and without proof of actual damages) in
order to prevent or to restrain any such breach or threatened breach by the
party in breach or by any other persons directly or indirectly acting for, on
behalf of, or with the party in breach, and that neither the party in breach
nor such other persons will oppose the granting of such relief. Injunctive
relief pursuant to this Subsection shall be in addition to all remedies
available at law or in equity to a party arising from a breach of the
provisions described above by the other party.
MASTER PURCHASE AND LICENSE AGREEMENT PAGE 20
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16.11 NON-DISCRIMINATION COMPLIANCE. CTS agrees
to comply with the laws and regulations set forth in the attached SCHEDULE I,
but only to the extent that CTS is required to comply with such laws and
regulations in accordance with their terms. Any provisions of the attached
SCHEDULE I which are inconsistent with the foregoing sentence shall not apply
to CTS or this Agreement. If requested by Customer, CTS will sign and return
to Customer a non-discrimination compliance certificate.
16.12 ENTIRE AGREEMENT; AMENDMENT. This
Agreement, the Support Services Agreement, the Nondisclosure Agreement, the
Source Code Escrow Agreement, the Roaming Service Agreement, each Market
Purchase Agreement issued hereunder, and all Schedules to the foregoing
agreements, contain the entire agreement and understanding between the
parties with respect to the subject matter hereof and supersede all prior
agreements, negotiations, representations, and proposals, written and oral,
relating to the subject matter. All Schedules and all other documents, when
agreed to by the parties and attached hereto, are integral to and
incorporated herein by this reference. This Agreement and the Schedules
attached hereto shall not be deemed or construed to be modified, amended, or
waived, in whole or in part, except by written agreement duly executed by the
parties to this Agreement.
16.13 COUNTERPARTS. This Agreement may be
signed in one or more counterparts, each of which shall be considered an
original and which shall, taken together, constitute this Agreement.
EXECUTED as of the date set forth above.
CUSTOMER: CTS:
--------- ----
AMERITECH MOBILE CELLULAR TECHNICAL SERVICES
COMMUNICATIONS, INC. COMPANY, INC.
By___________________________________ By__________________________________
_____________________________________ ____________________________________
Print Name Print Name
_____________________________________ ____________________________________
Title Title
CUSTOMER'S ADDRESS FOR NOTICES: CTS'S ADDRESS FOR NOTICES:
------------------------------- --------------------------
0000 X. Xxxxxxxxx Xxxxxx Xxxxx 0000 Xxxxxx Xxxxxx, Xxxxx 000
Location 3F12 Xxxxxxx, Xxxxxxxxxx 00000
Xxxxxxx Xxxxxxx, Xxxxxxxx 00000-0000 Attention: Legal Department
Attention: Xxx Xxxxxxxx Telefax: (000) 000-0000
Telefax: (000) 000-0000
with a copy to:
Ameritech Mobile Communications, Inc.
MASTER PURCHASE AND LICENSE AGREEMENT PAGE 21
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0000 X. Xxxxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Legal Department, 3H89D
Telefax: (000) 000-0000
MASTER PURCHASE AND LICENSE AGREEMENT PAGE 22
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INDEX OF SCHEDULES
TO
MASTER PURCHASE AND LICENSE AGREEMENT
SCHEDULE DESCRIPTION PAGE NO.
-------- ----------- --------
Schedule A Fees and Payment Terms 25
Schedule B CTS-Certified Hardware 30
Schedule C Market Areas 31
Schedule D Specifications 33
Schedule E Acceptance Test Plans 37
Schedule F Training Classes 54
Schedule G Technical Managers 57
Schedule H Nondisclosure Agreement 58
Schedule I Non-Discrimination Compliance 59
MASTER PURCHASE AND LICENSE AGREEMENT PAGE 23
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SCHEDULE A
TO
MASTER PURCHASE AND LICENSE AGREEMENT
FEES AND PAYMENT TERMS
Customer shall pay the following Fees and charges in
connection with the Master Purchase and License Agreement between CTS and
Customer (the "Agreement"), together with any other Fees and charges
specified in the Agreement. All undefined capitalized terms used in this
Schedule shall have the meanings ascribed to such terms as set forth in the
Agreement.
1. LICENSE FEES.
1.1 INITIAL LICENSED PROGRAMS. In consideration
for the License, Customer shall pay the following Fees to CTS for the
following Licensed Programs in accordance with the terms of the Agreement and
this Schedule:
LICENSED PROGRAMS 1 LICENSE FEES PER CELL SITE
[ * *
* * *
* * *
Total: * *]
1.2 ADDITIONAL LICENSED PROGRAMS. For all additional
software, data tables, and programs which CTS and Customer agree in writing
to add to a System as Licensed Programs (other than the Licensed Programs
described in Subsection 1.1, above, and Section 3, below), Customer shall pay
such Fees to CTS as CTS and Customer mutually agree to in writing.
1.3 NEW RELEASES AND MAINTENANCE RELEASES. For all New
Releases and Maintenance Releases of the Licensed Programs described in
Sections 1.1, 1.2 and 3 of this Schedule, Customer shall pay such Fees to CTS
as specified in Subsection 2.3 of the Agreement.
2. HARDWARE FEES.
2.1 CELL SITE SYSTEM HARDWARE PURCHASED FROM CTS. In
consideration for the Hardware components purchased from CTS for installation
in Cell Sites, Customer shall pay CTS the following Fees in accordance with
the terms of the Agreement and this Schedule:
HARDWARE DESCRIPTION 2 HARDWARE FEES
--------------------------
1 Fees include pricing for the License to use Licensed Programs and for the
software performance warranty set forth in Subsection 11.2 of the Agreement.
Fees exclude pricing for license to use interdiction software, which is
specified in Section 3, below.
2 Fees include pricing for purchase of the Cell Site System Hardware and for
the hardware performance warranty set forth in Subsection 11.3 of the
Agreement with respect to such Cell Site System Hardware.
MASTER PURCHASE AND LICENSE AGREEMENT PAGE 24
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[ * *
* * *]
2.2 ADDITIONAL HARDWARE PURCHASED FROM CTS. Except as
otherwise provided in Sections 2.1 and 3 of this Schedule, Customer shall pay
CTS an amount equal to: (i) [*] for all CTS-manufactured Hardware purchased
from CTS during calendar year 1997, [*]; and (ii) [*] for all other Hardware
purchased from CTS.
2.3 HARDWARE PURCHASED FROM THIRD PARTIES. For all Hardware
purchased from Third Parties for a System (I.E., all Hardware other than the
Hardware purchased from CTS described in Sections 2.1, 2.2, and 3 of this
Schedule), Customer shall pay CTS an integration Fee equal to [*] for such
Hardware, which [*] shall not be [*] for purposes of this Subsection.
3. FEES FOR INTERDICTION FUNCTIONALITY. In addition to the Fees
set forth in Sections 1 and 2, above, and in consideration for the license to
use certain software, and the sale of certain hardware, necessary to perform
the interdiction functionality for a given System, Customer shall pay the
Fees set forth below which pertain to the interdiction method utilized for
such System:
INTERDICTION METHOD 3 INTERDICTION FEES
[* *
* *]
4. DEPLOYMENT FEES.
4.1 DEPLOYMENT MANAGEMENT FEES. For the Initial System,
Customer shall pay CTS a deployment management Fee equal to [*], to be paid
within [*] after Customer's receipt of CTS's invoice for same (which invoice
will be rendered [*]. In consideration for such deployment management Fee,
CTS will provide the following for the deployment for such Initial System:
(i) consulting services for planning the configuration for such Initial
System and preparing an itemized list of all Hardware for such Initial
System; (ii) availability of one primary and one back up technical manager
for such Initial System, as specified in Subsection 5.2 of the Agreement;
(iii) installation services for the installation of Hardware at each regional
processor site for the Initial System, as specified in Subsection 5.2 of the
Agreement; (iv) installation services for the installation of Cell Site
System Hardware [*]; and (v) one session of PreTect-TM- User Training and
Cell Site System Overview Training, as specified in Subsection 8.1 and
SCHEDULE F of the Agreement. Except as the parties otherwise agree in
writing, additional deployment management services will be performed by CTS
at the rate of [*] for each CTS representative performing such services, plus
all expenses incurred by CTS in connection with such services as described in
Section 9, below.
------------------------------------------------------------------------------
Fees exclude pricing for purchase of interdiction hardware, which is
specified in Section 3, below, and also excludes pricing for cabling and
other peripherals required for a given System.
3 Fees include pricing for the license to use software, and the sale of
hardware, which directly pertain to the interdiction method utilized for a
given System. Fees exclude pricing for cabling and other peripherals
required for the interdiction method utilized. For any other interdiction
method utilized for a given System, Customer shall pay such Fees to CTS as
the parties mutually agree to in writing.
MASTER PURCHASE AND LICENSE AGREEMENT PAGE 25
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4.2 CELL SITE SYSTEM INSTALLATION FEES. At Customer's
request, CTS will install the initial configuration of Components at a Cell
Site in accordance with the terms of the Agreement. In consideration for
such installation services, Customer shall pay CTS an amount equal to [*]
installation, except for the installation of Cell Site System Hardware [*] as
described in Subsection 4.1 (iv), above.
5. TRAINING FEES.
5.1 PRETECT-TM- USER TRAINING/CELL SITE SYSTEM OVERVIEW
TRAINING. As partial consideration for the deployment management Fees
described in Subsection 4.1, above, CTS will conduct for the Initial System
one PreTect-TM- User Training session and one Cell Site System Overview
Training session, as specified in Subsection 8.1 and SCHEDULE F of the
Agreement. At Customer's request, CTS will conduct one or more additional
PreTect-TM-User/Cell Site System Overview combined training sessions, as
specified in Subsection 8.1 and SCHEDULE F of the Agreement, on a mutually
acceptable schedule. In consideration for such additional training, Customer
shall pay CTS a Fee equal to [*] per combined training session, plus all
expenses incurred by CTS in connection with such training session as
described in Section 9, below.
5.2 INSTALLATION TRAINING. If Customer elects to perform its
own installation of Hardware at Cell Sites for a System, as specified in the
Agreement, CTS will conduct one or more Cell Site System Installation
training sessions for such System as specified in Subsection 8.1 and SCHEDULE
F of the Agreement, on a mutually acceptable schedule. In consideration for
such training, Customer shall pay CTS a Fee equal to [*] per training
session, plus all expenses incurred by CTS in connection with such training
session as described in Section 9, below.
5.3 MAINTENANCE TRAINING. If Customer elects to perform its
own maintenance of Hardware at Cell Sites for a System, as specified in the
Support Services Agreement, CTS will conduct one or more Cell Site System
Maintenance training sessions for such System as specified in Subsection 8.1
and SCHEDULE F of the Agreement, on a mutually acceptable schedule. Customer
shall pay CTS a Fee equal to [*] per training session, plus all expenses
incurred by CTS in connection with such training session as described in
Section 9, below.
5.4 ADDITIONAL TRAINING. Additional training by CTS will be
pursuant to such terms and subject to such Fees as CTS and Customer mutually
agree to in writing.
6. SUPPORT SERVICE FEES. For each System, CTS will offer the
support services set forth in the Support Services Agreement (I.E., basic
support services, Hardware maintenance, System monitoring, and software
subscription services), subject to the fees and other charges set forth in
such Support Service Agreement and the Schedules attached thereto.
7. REAL-TIME PREVENTION OF ROAMING CLONING FRAUD. For each
System, CTS will offer the services set forth in the Roaming Service
Agreement, subject to the fees and other charges set forth in such Roaming
Service Agreement and the Schedules attached thereto.
8. PRETECT-TM- GRAPHICAL USER INTERFACE. CTS and Customer agree
that, for each System, CTS will provide [*] PreTect-TM- Graphical User
Interface connections [*]. For each additional PreTect-TM- Graphical User
Interface connection for a System, Customer shall pay CTS a Fee equal to [*].
MASTER PURCHASE AND LICENSE AGREEMENT PAGE 26
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9. OTHER FEES. In addition to the Fees described above, Customer
agrees to pay CTS for each of the following charges and expenses [*]: (i)
all travel, lodging, and other out-of-pocket expenses incurred by CTS in
connection with the Agreement; and (ii) all services performed by CTS, other
than those services for which CTS's compensation is expressly set forth
elsewhere in the Agreement or the Schedules thereto, at the then-current
billing rate of the CTS personnel performing such services, plus all expenses
incurred by CTS in connection with such services (including without
limitation all costs of materials, costs of third-party contractors, and all
travel, lodging, and other out-of-pocket expenses), except as the parties
otherwise agree to in writing.
10. PAYMENT TERMS.
10.1 GENERAL.
10.1.1 Except as otherwise set forth in Subsection
10.2, below, for each deployment of Components for a System, CTS will invoice
Customer for the Fees described in Subsections 1.1, 2.1, and 3, above, as
follows: (i) [*] of the aggregate of such Fees upon CTS's delivery of such
Components to a common carrier for shipment to Customer (if multiple
shipments are made, such aggregate amount shall be paid on a pro rata basis
at the time of each shipment); and (ii) the remaining [*] of the aggregate of
such Fees upon the earlier of (a) [*] set forth in the attached [*], or (b)
thirty (30) days from Customer's receipt of such Components, [*].
10.1.2 For each deployment of Components for a System,
CTS will invoice Customer for the Fees described in Subsection 2.2, above, as
follows: (i) [*] of the aggregate of such Fees upon CTS's receipt of
Customer's order for such Components (under a Market Purchase Agreement or
Addendum thereto); and (ii) the remaining [*] of the aggregate of such Fees
upon CTS's delivery of such Components to a common carrier for shipment to
Customer (if multiple shipments are made, such aggregate amount shall be paid
on a pro rata basis at the time of each shipment).
10.1.3 Except as otherwise expressly agreed to in
writing, CTS will invoice Customer for all amounts to be paid to CTS under
this Agreement, and Customer will pay such invoice within [*], provided that
if Customer disputes an invoice, Customer's payment of any undisputed portion
of the invoice shall not waive any of its rights with respect to the disputed
portion of the invoice.
10.2 INITIAL SYSTEM DEPLOYMENT. For the deployment of
Components for the Initial System, Customer shall pay the Fees described in
Subsections 1.1, 2.1, and 3, above, to CTS as follows: (i) [*] of the
aggregate of such Fees upon CTS's delivery of such Components to a common
carrier for shipment to Customer (if multiple shipments are made, such
aggregate amount shall be paid on a pro rata basis at the time of each
shipment); (ii) [*] of the aggregate of such Fees upon [*]; and (iii) the
remaining [*] of the aggregate of such Fees upon [*].
11. [*] CTS hereby agrees that, during the term of this
Agreement, [*] expressly set forth in this Schedule will [*] taking into
consideration [*], including without limitation [*] involved in the
transaction. For purposes of this Subsection, [*] means that for the above
clause [*]. The parties agree that the terms of this Section shall not apply
to [*].
MASTER PURCHASE AND LICENSE AGREEMENT PAGE 27
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SCHEDULE B
TO
MASTER PURCHASE AND LICENSE AGREEMENT
CTS-CERTIFIED HARDWARE
This Schedule contains a list of the Hardware certified by CTS for
purchase by Customer from certain Third Parties, approved in advance and in
writing by CTS, as more fully described in Subsection 3.2 of the Master
Purchase and License Agreement between CTS and Customer. All configurations
of such Hardware used for a given System must be approved in advance and in
writing by CTS.
1. Hewlett-Packard Processors and peripheral Hewlett-Packard equipment.
The models used for each System will vary depending on the Hardware
configuration used for such System.
2. CISCO Routers and peripheral CISCO equipment. The models used for
each System will vary depending on the Hardware configuration used for
such System.
3. X-terminal Workstations (CTS recommends Hewlett-Packard ENVIZEX
X-terminal workstations with a minimum of 8 MB of memory). Memory
requirements for workstations will vary depending on the configuration
used for a given System.
4. Hewlett-Packard LaserJet (IV or above) printer. Printer must carry
baseline memory (memory size dependent on model).
MASTER PURCHASE AND LICENSE AGREEMENT PAGE 28
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SCHEDULE C
TO
MASTER PURCHASE AND LICENSE AGREEMENT
MARKET AREAS
This Schedule contains a list of Customer's market areas for purposes of the
Master Purchase and License Agreement between CTS and Customer (the
"Agreement").
ILLINOIS MARKET AREA
[* * * *
* * * *
* * * *
* * * *
* * * *
* * * *
* * * *
* * * *
* * * *
* * * *
* * * *
* * * *
* * * *
* * * *
* * * *]
MICHIGAN MARKET AREA
[* * * *
* * * *
* * * *
*]
MISSOURI MARKET AREA
[* * * *
* * * *
* * * *
* * * *
* * * *
* * * *
* * * *
* * * *
* * * *
* * * *]
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OHIO MARKET AREA
[* * * *
* * * *
* * * *
* * * *
* * * *
* * * *
* * * *
* * * *
* * * *
* * * *
* * * *]
WISCONSIN MARKET AREA
[* * * *
* * * *
* * * *
* * * *
* * * *
* * * *
* * * *
* * * *
* * * *]
HAWAII MARKET AREA
[* * * *
* * * *]
MASTER PURCHASE AND LICENSE AGREEMENT PAGE 30
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SCHEDULE D
TO
MASTER PURCHASE AND LICENSE AGREEMENT
SPECIFICATIONS
This Schedule contains the functional Specifications for a System as
required by the Master Purchase and License Agreement between CTS and
Customer (the "Agreement"). All undefined capitalized terms used in this
Schedule shall have the meanings ascribed to such terms as set forth in the
Agreement. Each overall System is comprised of one or more Regional
Processor Systems and Cell Site Systems.
BLACKBIRD-Registered Trademark- PLATFORM AND PRETECT-TM-
APPLICATION FUNCTIONAL OVERVIEW
Together, the Blackbird-Registered Trademark- Platform and PreTect-TM- form a
home market cloning prevention solution, in which the Blackbird-Registered
Trademark- Platform collects cellular phone data that PreTect-TM- measures
and uses to interdict analog cellular phone cloning attempts in real time.
BLACKBIRD-Registered Trademark- PLATFORM OVERVIEW
The Blackbird-Registered Trademark- Platform is the data collection and
storage platform for CTS's real time cellular fraud prevention applications.
Using hardware and software at the Cell Site System (CSS) and Regional
Processor (RP), the Blackbird-Registered Trademark- Platform collects and
stores the following cellular call data that form a cellular call event
signature, or "fingerprint":
- Radio frequency (RF) transmission characteristics: The subtle
differences between different cellular phones' RF signatures.
- Mobile Identification Number (MIN): The unique phone number assigned a
cellular phone.
- Electronic Serial Number (ESN): The unique number programmed into a
cellular phone during the manufacturing process.
- [*]
- [*]
CTS designed the Blackbird-Registered Trademark- Platform as a platform for
delivery of a modular system of cellular fraud prevention applications. The
Blackbird-Registered Trademark- Platform Application Programming Interface
(API) facilitates seamless integration of current and future CTS products to
meet the changing fraud prevention requirements of its customers.
PRETECT-TM- OVERVIEW
PreTect-TM- is the real time cloning detection and interdiction application
designed to function on the Blackbird-Registered Trademark- Platform.
PreTect-TM- works to prevent cloning fraud.
Over time, PreTect-TM- uses the information collected and stored by the
Blackbird-Registered Trademark- Platform to build a unique fingerprint for
each analog cellular phone. PreTect-TM- also measures each call attempt
transmitted
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to a cell site against this fingerprint. This real time measurement process
allows PreTect-TM- to quickly determine whether the attempt originated from a
cloned analog cellular phone.
Users access PreTect-TM- through a Graphical User Interface on Hewlett
Packard X-terminals or IBM PC-compatible computers running X-terminal
emulation software. Through the graphical user interface, users can [*]
[*]
Through the graphical user interface, users can configure PreTect-TM- to meet
the needs of daily operations on their cellular network:
[*]
Finally, users can [*]. This allows customer service and fraud prevention
departments to better utilize the data storage and analysis capabilities of
the Blackbird-Registered Trademark- Platform/PreTect-TM- system:
[*]
SYSTEM HARDWARE OVERVIEW
The Blackbird-Registered Trademark- Platform/PreTect-TM- system includes the
following hardware systems:
Each regional processor complex consists of one or more processors, routers
and other hardware necessary to store cellular call data and maintain
connectivity between the Cell Site System and regional processor system.
- Regional Processor: Typically a Hewlett Packard 9000 series
processor(s) running the HP-UX operating system.
- Router: Typically a CISCO 7000 series router(s) used to provide TCP/IP
Ethernet connectivity between the regional processor and each cell
site.
The Blackbird-Registered Trademark- Platform and PreTect-TM- software work
with the regional processor system to provide real-time call data collection,
storage and reporting. In addition, the Blackbird-Registered Trademark-
Platform's distributed real-time message processing allows distribution of
fingerprint data among multiple regional processor systems in large markets.
The Cell Site System (CSS) consists of the cell site processor, radios and
other equipment necessary to collect cellular call data, communicate with the
regional processor system and shut down, or interdict, cloning attempts. At
least one CSS is required for each cell site that uses the
Blackbird-Registered Trademark-Platform/PreTect-TM- system. A single CSS
will [*].
- Cell Site Processor (CSP): An industry-standard PC housed in an
industrial-grade metal enclosure, with a cellular modem for remote
network troubleshooting.
- Radio: Cellular radios which collect cellular call data directly from
the cell site antenna and transmit that data to the CSP without
interrupting cell site call traffic.
- Interdiction module: Hardware unit that performs interdiction of
cloning attempts upon command from the CSP. The interdiction module
will vary depending on the carrier's infrastructure type.
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Blackbird-Registered Trademark- and PreTect-TM- software work with the CSS to
gather home market cellular call characteristics, relay information regarding
those characteristics to the regional processor when necessary, and perform
interdiction of cloning attempts.
BLACKBIRD-Registered Trademark- PLATFORM/PRETECT-TM- PROCESS OVERVIEW
This diagram follows a cellular call attempt through the Blackbird-Registered
Trademark- Platform/PreTect-TM- system:
[FLOW CHART]
MASTER PURCHASE AND LICENSE AGREEMENT PAGE 33
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SCHEDULE E
TO
MASTER PURCHASE AND LICENSE AGREEMENT
ACCEPTANCE TEST PLANS
Attached to this Schedule are the following Acceptance Test Plans described
in Subsection 1.1 of the Master Purchase and License Agreement between CTS
and Customer (the "Agreement"). All undefined terms used in this Schedule
shall have the meanings ascribed to such terms in the Agreement.
ATTACHMENT DESCRIPTION
---------- -----------
Schedule E-1 Standard Acceptance Test Plan
[*]
Schedule E-2 Acceptance Test Plan [*]
[*]
MASTER PURCHASE AND LICENSE AGREEMENT PAGE 34
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SCHEDULE E-1
STANDARD ACCEPTANCE TEST PLAN
Set forth below is the Standard Acceptance Test Plan
described in Subsection 1.1 of the Master Purchase and License Agreement
between CTS and Customer (the "Agreement"). For purposes of this Acceptance
Test Plan, all references to "fraud" or "cloning fraud" shall mean analog
cellular telephone cloning fraud within the home market. All undefined terms
used herein shall have the meanings ascribed to such terms in the Agreement.
[*]
GOALS
- [*]
CROSS REFERENCE
Set forth below is a cross reference between the tests described in this plan[*]
[* SECTIONS OF PLAN
* A.1
* A.2
* B, C
* A.3
*] X, X, X, X, X, X, and H
[*]
TEST CONDITIONS
The tests set forth below are subject to satisfaction of the following
conditions at all times during testing:
- Customer is in compliance with the CTS Infrastructure and Environmental
Requirements for the relevant System, and otherwise is in compliance with
the Agreement.
- Customer's cellular network is functioning properly, such that it does not
degrade the performance of the System.
- Customer continuously purchases support services from CTS for the relevant
System under the Support Services Agreement, and otherwise is in compliance
with such agreement.
- The hardware sizing and configuration for the relevant System have been
approved by CTS.
- New phones (phones that become commercially available in the relevant
Licensed Market by their respective manufacturers) will not be a part of
this testing [*].
TESTS
Customer personnel shall conduct all tests under this plan, except as the
parties otherwise agree. In any event, CTS shall be entitled to participate
as a member of the test team.
A. INSTALLATION VERIFICATION TESTS
A.1 CELL SITE SYSTEM INSTALLATION AND NETWORK CONNECTIVITY VERIFICATION
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Goal:
- [*]
Method:
- [*]
[*]
- [*]
Deliverable:
- [*]
Approval: Customer Initial ______ Date ______ CTS Initial ______ Date ______
A.2 REGIONAL PROCESSOR COMPLEX EQUIPMENT INSTALLATION VERIFICATION
Goal:
- [*]
Method:
- [*]
Deliverable:
- [*]
Approval: Customer Initial ______ Date ______ CTS Initial ______ Date ______
A.3 CSS/RPC EQUIPMENT CONFIGURATION VERIFICATION
Goal:
- [*]
Method:
- [*]
Deliverable:
- [*]
Approval: Customer Initial ______ Date ______ CTS Initial ______ Date ______
B. GRAPHICAL USER INTERFACE (GUI) TEST
Goal:
- [*]
Method:
- [*]
MASTER PURCHASE AND LICENSE AGREEMENT PAGE 36
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Deliverables:
- [*]
Approval: Customer Initial ______ Date ______ CTS Initial ______ Date ______
C. CALL EVENT DATA COLLECTION TEST
Goal:
- [*]
Method:
- [*]
Deliverable:
- [*]
Approval: Customer Initial ______ Date ______ CTS Initial ______ Date ______
D. REPORTS TEST
Goal:
- [*]
Method:
- [*]
Deliverable:
- [*]
Approval: Customer Initial ______ Date ______ CTS Initial ______ Date ______
E. SYSTEM MONITORING AND FAULT MANAGEMENT
Goal:
- [*]
Method:
- [*]
Deliverable:
- [*]
Approval: Customer Initial ______ Date ______ CTS Initial ______ Date ______
[*]
Goal:
- [*]
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Method:
- [*]
Deliverable:
- [*]
Approval: Customer Initial ______ Date ______ CTS Initial ______ Date ______
[*]
[*]
Goal:
- [*]
Method:
- [*]
Deliverable:
- [*]
Approval: Customer Initial ______ Date ______ CTS Initial ______ Date ______
[*]
[*]
[*]
Goal:
- [*]
Method:
- [*]
Deliverable:
- [*]
Approval: Customer Initial ______ Date ______ CTS Initial ______ Date ______
[*]
Goal:
- [*]
Method:
- [*]
Deliverable:
MASTER PURCHASE AND LICENSE AGREEMENT PAGE 38
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- [*]
Approval: Customer Initial ______ Date ______ CTS Initial ______ Date ______
I. ADDITIONAL CELL SITE VERIFICATION TEST
[*]
- [*]
I.1 VALID CALL TEST
Goal:
- [*]
Method:
- [*]
Deliverable:
- [*]
Approval: Customer Initial ______ Date ______ CTS Initial ______ Date ______
I.2 COUNTERFEIT CALL TEST
Goal:
- [*]
Method:
- [*]
Deliverable:
- [*]
Approval: Customer Initial ______ Date ______ CTS Initial ______ Date ______
J. ADDITIONAL REGIONAL PROCESSOR COMPLEX EQUIPMENT TEST
- [*]
J.1 NETWORK CONNECTIVITY
Goal:
- [*]
Method:
- [*]
Deliverable:
- [*]
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Approval: Customer Initial ______ Date ______ CTS Initial ______ Date ______
J.2 APPLICATION SERVER REPORTING
Goal:
- [*]
Method:
- [*]
Deliverable:
- [*]
Approval: Customer Initial ______ Date ______ CTS Initial ______ Date ______
K. ADDITIONAL REGIONAL PROCESSOR COMPLEXES
[*]
L. DURATION OF TESTING
[*]
TERMS & DEFINITIONS
ACRONYM DESCRIPTION
------- -----------
[*]
CSS Cell Site System
RPC Regional Processor Complex
MIN Mobile Identification Number
ESN Electronic Serial Number
MASTER PURCHASE AND LICENSE AGREEMENT PAGE 40
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EXCHANGE COMMISSION
SCHEDULE E-2
ACCEPTANCE TEST PLAN [*]
Set forth below is the Acceptance Test Plan [*] described in
Subsection 1.1 of the Master Purchase and License Agreement between CTS and
Customer (the "Agreement"). For purposes of this Acceptance Test Plan, all
references to "fraud" or "cloning fraud" shall mean analog cellular telephone
cloning fraud within the home market. All undefined terms used herein shall
have the meanings ascribed to such terms in the Agreement.
[*]
GOALS
- [*]
TEST CONDITIONS
The tests set forth below are subject to satisfaction of the following
conditions at all times during testing:
- Customer is in compliance with the CTS Infrastructure and Environmental
Requirements for the relevant System, and otherwise is in compliance with
the Agreement.
- Customer's cellular network is functioning properly, such that it does not
degrade the performance of the System.
- Customer continuously purchases support services from CTS for the relevant
System under the Support Services Agreement, and otherwise is in compliance
with such agreement.
- The hardware sizing and configuration for the relevant System have been
approved by CTS.
- New phones (phones that become commercially available in the relevant
Licensed Market by their respective manufacturers) will not be a part of
this testing [*].
- [*]
TESTS
1. TEST PREPARATIONS
[*]
Additional Test Preparations:
CTS and Customer will prepare the System for testing by performing the
items described below:
- [*]
2. [*]
Goal:
- [*]
Method:
- [*]
MASTER PURCHASE AND LICENSE AGREEMENT PAGE 41
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Deliverable:
- [*]
Approval: Customer Initial ______ Date ______ CTS Initial ______ Date ______
[*]
Goals:
- [*]
Method:
- [*]
Deliverables:
- [*]
Approval: Customer Initial ______ Date ______ CTS Initial ______ Date ______
[*]
Goal:
- [*]
Method:
- [*]
Deliverable:
- [*]
Approval: Customer Initial ______ Date ______ CTS Initial ______ Date ______
5. Duration of Testing
[*]
TERMS & DEFINITIONS
ACRONYM DESCRIPTION
------- -----------
[*]
GUI Graphical User Interface
FORMULAS
[*]
MASTER PURCHASE AND LICENSE AGREEMENT PAGE 42
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SCHEDULE F
TO
MASTER PURCHASE AND LICENSE AGREEMENT
TRAINING CLASSES
This Schedule contains a description of the training classes specified
in the Master Purchase and License Agreement between CTS and Customer (the
"Agreement"). All undefined capitalized terms used in this Schedule shall
have the meanings ascribed to such terms as set forth in the Agreement.
Each of the initial training classes are to be conducted at facilities
provided by Customer, in the market area in which the System is installed.
Where a classroom environment is required Customer will need to include
adequate space for the number of participants, an overhead transparency
projector, and access, within a reasonable distance, to an X-terminal capable
of running the System's graphical user interface. Where a Cell Site
environment is required, Customer will need to provide adequate space such
that the number of participants are able to view, concurrently,
demonstrations of Cell Site Hardware installation or maintenance procedures.
Training sessions are to be held during normal business hours (local time),
up to approximately eight hours per day, on concurrent days.
A. PreTect-TM- USER TRAINING
Participant Prerequisite: Previous professional experience within a
cellular carrier's operation identifying and/or resolving cases of cellular
fraud or working with the carrier's customer care organization.
Duration: Approximately four hours, to be conducted in one business day.
Facilities requirements: Classroom, as described above.
Maximum number of participants: [*]
Timing: To be conducted after installation of Regional Processor and at
least five Cell Site Hardware systems in a market area, and end-to-end
verification of System functionality by CTS.
Course Description: This course is targeted at carrier personnel who
currently work in the carrier's Fraud or Customer Care organizations.
This course shows PreTect-TM- users how to access information and perform
tasks using the PreTect-TM- graphical user interface. This includes an
overview of the functionality, pre-call detection, and interdiction.
Additional training topics include: querying the system by mobile
identification number (MIN) and destination, monitoring fingerprints, and
generating on-screen and print reports.
B. Cell Site System Training
The Cell Site System training will depend on whether Customer elects to
have CTS perform installation of Cell Site Components or elects to perform
such installation itself, as specified in the Agreement. If Customer
elects to have CTS perform such installation, CTS will provide the Cell
Site System Overview training described below. If Customer elects to
perform such installation itself, CTS will provide the Cell Site System
Installation training described below.
1. Cell Site System Overview
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Participant Prerequisite: Demonstrated familiarity with PC-type hardware
systems. Previous experience working in the cell site environment
recommended.
Duration: Approximately four hours of classroom instruction. Observation
of installation of up to three Cell Site hardware systems. Cell site
observation to be conducted according to a mutually-agreed-upon schedule.
Facilities requirements: Classroom and cell site, as described above.
Maximum number of participants: Governed by cell site environment
restrictions, as described above.
Timing: To be conducted at a mutually agreed upon time.
Course Description: This course is targeted at Customer personnel who
currently work supporting the Customer's cell sites. The training includes
an overview of CSS hardware infrastructure, training in composition and
layout of CTS additions to cell sites, and a basic understanding of network
interfaces and problem solving techniques including the cell site
relationship to the regional processor.
2. Cell Site System Installation
Participant Prerequisite: Demonstrable skills installing and maintaining
PC-type hardware systems. Previous experience working in the cell site
environment recommended. [*]
Duration: Approximately four hours of classroom instruction.
Participation in installation of at least five Cell Site hardware systems,
with the Cell Sites selected including a representative sample of the
possible interfacing requirements (RF connection and networking). Cell
site training to be conducted according to a mutually-agreed-upon schedule.
Facilities requirements: Classroom and cell site, as described above.
Maximum number of participants: Governed by cell site environment
restrictions, as described above.
Timing: To be conducted after installation of Regional Processor, unless
the parties otherwise agree to in writing.
Course Description: This course is targeted at Customer personnel who
currently work supporting Customer's cell sites. This includes an overview
of CSS hardware infrastructure, proper handling and installation of CSS
components, and a basic understanding of network interfaces and problem
solving techniques.
Course Requirement: This CTS training session is required for all Customer
personnel who will be performing installation of Cell Site System hardware
at Cell Sites, until CTS makes available a "Train the Trainer" program to
enable Customer to train its own personnel for the installation of Cell
Site System hardware. When available, participation in the "Train the
Trainer" program will be required for up to two designated Installation
Trainers for Customer. Upon CTS certification, such Installation Trainers
will be responsible for training Customer personnel in accordance with the
CTS-provided curriculum for Cell Site System Installation training, and for
maintaining Installation Trainer certification in accordance with CTS
re-certification
MASTER PURCHASE AND LICENSE AGREEMENT PAGE 44
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requirements. CTS will provide such "Train the Trainer" program on such
terms and for such training fees as CTS and Customer mutually agree to in
writing, which fees [*]
C. Cell Site System Maintenance Training
Participant Prerequisite: Cell Site System Installation training, as
described above. In addition, demonstrable skills repairing [*]. Previous
experience working in a cell site environment recommended.
Duration: Approximately four hours of classroom training and eight hours
of on-the-job, participatory training in the cell site environment.
Facilities requirements: Classroom and cell site, as described above.
Maximum number of participants: Governed by cell site environment
restrictions, as described above.
Timing: To be conducted after installation of Regional Processor and at
least five Cell Site Hardware systems in a market area, and end-to-end
verification of System functionality, unless the parties otherwise agree to
in writing.
Course Description: This course is targeted at carrier personnel who
currently perform hardware repairs on cellular network equipment. The
course includes basic trouble-shooting techniques of the CSS environment,
proper handling of CSS hardware, and CSP component replacement.
Course Requirement: This CTS training session is required for all
Customer personnel who will be performing maintenance of Cell Site
System hardware at Cell Sites, until CTS makes available a "Train the
Trainer" program to enable Customer to train its own personnel for the
maintenance of Cell Site System hardware. When available, participation
in the "Train the Trainer" program will be required for up to two
designated Maintenance Trainers for Customer. Upon CTS certification,
such Maintenance Trainers will be responsible for training Customer
personnel in accordance with the CTS-provided curriculum for Cell Site
System Maintenance training, and for maintaining Maintenance Trainer
certification in accordance with CTS re-certification requirements. CTS
will provide such "Train the Trainer" program on such terms and for such
training fees as CTS and Customer mutually agree to in writing, which
fees [*]. [*].
MASTER PURCHASE AND LICENSE AGREEMENT PAGE 45
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SCHEDULE G
TO
MASTER PURCHASE AND LICENSE AGREEMENT
TECHNICAL MANAGERS - OVERALL COORDINATION
CTS TECHNICAL MANAGERS:
Primary: [*]
Cellular Technical Services Company, Inc.
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000
[*]
Fax: (000) 000-0000
Back Up: [*]
Cellular Technical Services Company, Inc.
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000
[*]
Fax: (000) 000-0000
CUSTOMER TECHNICAL MANAGERS:
Primary: [*]
Ameritech Mobile Communications, Inc.
0000 X. Xxxxxxxxx Xxxxxx Xxxxx
[*]
Xxxxxxx Xxxxxxx, Xxxxxxxx 00000
[*]
Back Up: Network Management & Control Center
[*]
0000 X. Xxxxxxxxx Xxxxxx Xxxxx
[*]
Xxxxxxx Xxxxxxx, Xxxxxxxx 00000
[*]
MASTER PURCHASE AND LICENSE AGREEMENT PAGE 46
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SCHEDULE H
TO
MASTER PURCHASE AND LICENSE AGREEMENT
NONDISCLOSURE AGREEMENT
Attached to this Schedule is a copy of the Bilateral Nondisclosure Agreement
dated as of October 14, 1996, between Cellular Technical Services Company,
Inc. and Ameritech Mobile Communications, Inc. doing business as Ameritech
Cellular Services.
MASTER PURCHASE AND LICENSE AGREEMENT PAGE 47
BILATERAL NON-DISCLOSURE AGREEMENT
THIS AGREEMENT is entered into as of the 14th day of October, 1996,
between AMERITECH MOBILE COMMUNICATIONS, INC., a Delaware corporation, doing
business as AMERITECH CELLULAR SERVICES ("ACS"), and CELLULAR TECHNICAL
SERVICES COMPANY, INC., a Delaware corporation ("Company").
1. ACS and Company intend to disclose to each other information, which
may include confidential information, for purposes of evaluating a proposed
business relationship between the parties or for purposes of performing under
any actual business relationship or agreement between the parties. The term
"Confidential Information" shall mean any information or data which is
disclosed by a party to the other party under or in contemplation of this
Agreement and which (a) if in tangible form or other media that can be
converted to readable form, is clearly marked as proprietary, confidential or
private when disclosed, or (b) if oral, is identified as proprietary,
confidential, or private on disclosure and is summarized in a writing so
marked and delivered within thirty (30) days following such disclosure. The
parties agree that the disclosing party shall have the right to correct any
inadvertent failure to so identify or summarize information as confidential
or proprietary by providing written notification to the receiving party as
soon as practical after such error is determined by the disclosing party.
Upon receipt of such notification, the receiving party shall, from that time
forward, treat such information as "Confidential Information" in accordance
with and subject to the terms of this Agreement. Confidential information may
be either the property of the disclosing party or information provided to the
disclosing party by a corporate affiliate of the disclosing party or by a
third party.
2. The parties agree that all information regarding subscribers of ACS,
including subscriber lists, MINs, ESNs, and usage information, and related
subscriber information and data, and all Call Data derived from calls
originating from ACS' cellular network, as defined in the Service Agreement
for Real-Time Prevention of Roaming Closing Fraud between the parties dated
as of the date hereof, is to be deemed ACS's Confidential Information
hereunder whether or not it is marked in accordance with Section 1 hereof.
3. This Agreement is intended to encompass the corporate affiliates of
both parties hereto. Consequently, affiliates of either party may disclose
Confidential Information to the other party or its affiliates, and affiliates
of either party may receive Confidential Information from the other party or
its affiliates. The terms "disclosing party" and "receiving party" shall
include affiliates of the parties hereto with respect to Confidential
Information disclosed or received by the affiliates. The rights and
obligations of the parties hereto shall inure to the benefit of their
respective corporate affiliates and may be directly enforced by such
affiliates. Notwithstanding the above, each party shall be responsible for
any failure of any of its
affiliates to fully comply with the terms of this Agreement with respect to
the other party's Confidential Information.
4. The receiving party acknowledges the economic value to the disclosing
party of all Confidential Information. With respect to Confidential
Information, the recipient shall:
(a) use the Confidential Information only for the purpose(s) set forth in
Section I above;
(b) restrict disclosure of the Confidential Information solely to those
employees of such party 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 gain access to Confidential Information of
their obligations with respect to the Confidential Information and
ensure that each such person fully complies with the terms of this
Agreement with respect to the disclosing party's Confidential
Information;
(d) make only the number of copies of the Confidential Information
necessary to disseminate the information to those employees who are
entitled to have access to it, and ensure that all confidentiality
notices set forth on the Confidential Information are reproduced in
full on such copies; and
(e) safeguard the Confidential Information with the same degree of care
to avoid unauthorized disclosure as recipient uses to protect its own
confidential and private information (but in any event no lesser
standard than that which a reasonable person would utilize with
respect to its own trade secrets or confidential information of a
similar nature).
For the purposes of this Agreement only, "employees" includes third
parties retained for temporary administrative, clerical or programming
support.
A "need to know" means that the employee requires access to the
Confidential Information in order to perform his or her responsibilities in
connection with the evaluation of a proposed business relationship between
the parties or performance under any actual business relationship or
agreement between the parties.
5. The obligations of Paragraph 4 shall not apply to any Confidential
Information which the recipient can demonstrate (i.e., the receiving party
shall have the burden of proving the existence of any of the following
exceptions):
(a) is or becomes available to the public through no breach of this
Agreement;
-2-
(b) was previously known by the recipient without any obligation to hold
it in confidence;
(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 and subject to such conditions as
may be imposed in such written authorization;
(f) is required by law or regulation to be disclosed, but only to the
extent and for the purposes of such required disclosure; or
(g) is disclosed in response to a valid order of a court or other
governmental body of the United States or any political subdivisions
thereof, but only to the extent of and for the purposes of such order;
provided, however, that the recipient shall first notify the
disclosing party of the order and permit the disclosing party to seek
an appropriate protective order.
6. When requested by the recipient, the disclosing party will provide a
non-confidential resume of Confidential Information prior to disclosure of
the actual Confidential Information to enable the recipient to determine
whether it can accept the Confidential Information. Each party has the right
to refuse to accept any information under this Agreement, and nothing
obligates either party to disclose to the other party any particular
information.
7. Each party acknowledges its obligation to control access to and/or
exportation of technical data under the applicable export laws and
regulations of the United States, and each party agrees to adhere to and
comply with such laws and regulations with respect to any technical data
received under this Agreement.
8. Confidential Information, including permitted copies, shall 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, including all copies thereof, to the disclosing party or destroy
all such Confidential Information. The recipient shall also, within ten (10)
days of a written request by the disclosing party, certify in writing that
it has satisfied its obligations under Paragraphs 4, 7 and 8 of this
Agreement.
9. Both parties agree that an impending or existing violation of any
provision of this Agreement would cause the disclosing party irreparable
injury for which it would have no
-3-
adequate remedy at law, and that the disclosing party shall be entitled to
seek immediate injunctive relief prohibiting such violation, in addition to
any other rights and remedies available to it.
10. Nothing contained in this Agreement shall (a) be deemed a commitment
to engage in any business relationship, contract or future dealing with the
other party, or (b) limit either party's right to conduct similar discussions
or perform similar work to that undertaken pursuant hereto, so long as said
discussions or work do not violate this Agreement.
11. No patent, copyright, trademark or other proprietary right or license
is granted by this Agreement, except for the right to use such information in
accordance with this Agreement. No warranties of any kind are given with
respect to the Confidential Information disclosed under this Agreement or any
use thereof, except as may be otherwise agreed to in writing.
12. This Agreement shall be effective as of the date first written above
and shall terminate upon the later of: (i) the termination of the Master
Purchase and License Agreement between the parties dated as of the date of
this Agreement; or (ii) five (5) years after the date of this Agreement. All
obligations undertaken hereunder shall survive any termination of this
Agreement with respect to Confidential Information disclosed prior to the
termination of this Agreement.
13. This Agreement may not be assigned by either party without the prior
written consent of the other, except that either party may assign this
Agreement to any of its affiliates upon prior written notice to the other
party. No permitted assignment shall relieve a party of its obligations
hereunder with respect to Confidential Information disclosed to that party
prior to the assignment. Any assignment in violation of this Section shall be
void. This Agreement shall be binding upon the parties and their respective
successors and assigns.
14. 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 this Agreement shall continue in full force and
effect.
15. Each party warrants that it has the authority to enter into this
Agreement and to lawfully make the disclosures contemplated hereunder.
16. This Agreement, together with the Non-Disclosure Agreement between the
parties dated September 6, 1994 (the "Prior Agreement"), represents the
entire understanding between the parties with respect to the subject matter
hereof and supersedes all prior communications, agreements and understandings
relating thereto. The parties agree that the
-4-
date of this Agreement shall be the termination date of the Prior Agreement,
such that the Prior Agreement shall continue to apply with respect to the
"Confidential Information" (as defined in the Prior Agreement) of the
Company disclosed prior to the date of this Agreement. The provisions of this
Agreement may not be modified, amended, or waived, except by a written
instrument duly executed by both parties. This Agreement shall be governed in
all respects by the domestic laws of the State of Delaware.
CELLULAR TECHNICAL SERVICES COMPANY, INC.
By: /s/ Xxxxxx X. Xxxxx
----------------------------------
Title: President & COO
----------------------------------
AMERITECH MOBILE COMMUNICATIONS, INC.
By: /s/ Xxxx X. Xxxxxx
----------------------------------
Title: PRESIDENT
----------------------------------
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* CONFIDENTIAL MATERIAL OMITTED - FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION
SCHEDULE I
TO
MASTER PURCHASE AND LICENSE AGREEMENT
NON-DISCRIMINATION COMPLIANCE
Attached to this Schedule is a copy of Customer's standard form
Non-Discrimination Provisions.
MASTER PURCHASE AND LICENSE AGREEMENT PAGE 48
NON-DISCRIMINATION PROVISIONS
-----------------------------
During the performance of this Agreement, Contractor agrees to comply
with the following provisions, to the full extent that this Agreement is
subject to the applicable provisions of the following: Executive Order Xx.
00000, Xxxxxxxxx Xxxxx Xx. 00000, Executive Order No. 12138, Section 503 of
the Rehabilitation Act of 1973, the Vietnam-Era Veteran's Readjustment
Assistance Act of 1974, the Illinois Human Rights Act, the Indiana Civil
Rights Law, the Michigan Civil Rights Act, the Ohio Fair Employment Practice
Law, the Wisconsin Fair Employment Act, the rules, regulations and relevant
orders of the agencies enforcing said Orders and Statutes or charged with
administering affirmative action/non-discrimination requirements applicable
to government contractors or subcontractors, and any other applicable
Federal, State, or local law imposing obligations on government contractors
or subcontractors.
Monetary amounts, contractual or purchasing relationships, and/or the
number of Contractor's employees, determine which provisions are applicable.
CLAUSES REQUIRED BY FEDERAL LAW
-------------------------------
The following clauses are deemed part of this Agreement in accordance
with the table set forth below.
Clauses
Annual --------------------------------------------------
Contract Value 1 2 3 4 5 6
------------------------------------------------------------------------
Less than $2,500 X(a) X(a) X(b)
$2,500 or more X(a) X(a) X(b) X
$10,000 or more X X X(b) X X
$50,000 or more X X X(c) X(d) X X
(a) Applies only to depositories of government funds or financial
institutions issuing U.S. savings bonds and notes.
(b) Applies only to depositories of government funds or financial
institutions issuing U.S. savings bonds and notes and which have 50 or
more employees and are prime contractors or first-tier subcontractors.
(c) Applies only to businesses having 50 or more employees.
(d) Applies only to businesses having 50 or more employees and which are
prime contractors or first-tier subcontractors.
Clause 1: Equal Employment Opportunity
The Equal Employment Opportunity Clause set forth in Section 202 of
Executive Order 11246 and reiterated at 41 C.F.R. Section 60-1.4(a),
is hereby incorporated by reference pursuant to 41 C.F.R.
Section 60-1.4(d).
Clause 2: Certification of Non-Segregated Facilities
The Contractor certifies that it does not and will not maintain any
facilities it provides for its employees in a segregated manner, or
permit its employees to perform their services at any location under its
control, where segregated facilities are maintained; and that it will
obtain a similar certification, prior to the award of any nonexempt
subcontract.
Clause 3: Certification of Affirmative Action Programs
The Contractor affirms that it has developed and is maintaining
Affirmative Action Plans as required by Parts 60-2, 60-250 and 60-741 of
Title 41 of the Code of Federal Regulations.
Clause 4: Certification of Filing of Employers Information Reports
The Contractor agrees to file annually on or before the 31st of March
complete and accurate reports of Standard Form 100 (EE0-1) or such forms
as may be promulgated in its place.
2
Clause 5: Employment of Veterans
The Affirmative Action for Disabled Veterans and Veterans of The Vietnam
Era Clause, set forth in 41 C.F.R. Section 60-250.4 is hereby
incorporated by reference pursuant to 41 C.F.R. Section 60-250.22.
Clause 6: Employment of the Handicapped
The Affirmative Action Clause for Handicapped Workers set forth at 41
C.F.R. Section 60-741.4 is hereby incorporated by reference pursuant to
41 C.F.R. Section 60-741.22.
ADDITIONAL FEDERAL CLAUSES
--------------------------
If this Agreement offers further subcontracting opportunities, the
following clause is hereby made a material term of this Agreement:
Utilization of Small Business Concerns and Small Disadvantaged Business
Concerns (Feb. 1990)
(a) It is a policy of the United States that small business concerns and
small business concerns owned and controlled by socially and economically
disadvantaged individuals shall have the maximum practicable opportunity to
participate in performing contracts let by any Federal agency, including
contracts and subcontracts for subsystems, assemblies, components, and
related services for major systems. It is further the policy of the United
States that its prime contractors establish procedures to ensure the timely
payment of amounts due pursuant to the terms of their subcontracts with small
business concerns and small business concerns owned and controlled by
socially and economically disadvantaged individuals.
(b) Contractor hereby agrees to carry out this policy in the awarding of
subcontracts to the fullest extent consistent with efficient contract
performance. Contractor further agrees to cooperate in any studies or surveys
as may be conducted by the United States Small Business
3
Administration or the awarding agency of the United States as may be
necessary to determine the extent of Contractor's compliance with this clause.
(c) As used in this contract, the term "small business concern" shall
mean a small business as defined pursuant to Section 3 of the Small Business
Act and relevant regulations promulgated pursuant thereto. The term "small
business concern owned and controlled by socially and economically
disadvantaged individuals" shall mean a small business concern:
(1) which is at least 51 percent unconditionally owned by one or more
socially and economically disadvantaged individuals; or, in the case of any
publicly owned business, at least 51 percent of the stock of which is
unconditionally owned by one or more socially and economically disadvantaged
individuals; and
(2) whose management and daily business operations are controlled by
one or more of such individuals. This term also means a small business
concern that is at least 51 percent unconditionally owned by an economically
disadvantaged Indian tribe or Native Hawaiian organization, or a publicly
owned business having at least 51 percent of its stock unconditionally owned
by one of these entities which has its management and daily business
controlled by members of an economically disadvantaged Indian tribe or a
Native Hawaiian organization, and which meets the requirements of 13 C.F.R.
Part 124. The Contractor shall presume that socially and economically
disadvantaged individuals include Black Americans, Hispanic Americans, Native
Americans, Asian-Pacific Americans, Subcontinent Asian Americans, and other
minorities, or any other individual found to be disadvantaged by the
Administration pursuant to Section 8(a) of the Small Business Act. The
Supplier shall presume that socially and economically disadvantaged entities
also include Indian Tribes and Native Hawaiian organizations.
(d) Contractors acting in good faith may rely on written representations
by their subcontractors regarding their status as either a small business
concern or a small business concern owned and controlled by socially and
economically disadvantaged individuals.
4
SMALL BUSINESS/DISADVANTAGED BUSINESS PLAN CLAUSE
-------------------------------------------------
If the value of the goods or services to be provided by Contractor under
this Agreement is $500,000 or more, Contractor further agrees that it shall
adopt a Small Business and Small Disadvantaged Business Subcontracting
Plan as described in the clause set forth at Part 1, Section 52.219-9 of
Title 48 of the Code of Federal Regulations.
STATE CLAUSES
-------------
If this Agreement relates to services to be performed for the State
of Illinois, its political subdivisions, or any municipal corporation
within the State of Illinois, the Equal Employment Opportunity clause
set forth at 44 Ill. Adm. Code Section 750, Appendix A shall be deemed
incorporated herein by reference pursuant to the language thereof.
If this Agreement relates to services to be performed for the State
of Michigan or its political subdivisions, the value of the contract is
at least $5,000, and Contractor has at least three (3) employees, the
Non-discrimination Clause for All-State Contractors adopted by the State
Administrative Board on January 17, 1967, as amended, shall be deemed
incorporated herein by reference pursuant to the language thereof.
5
