Exhibit 10.17
GENERAL PURCHASE AGREEMENT
between
ERICSSON INC.
and
INTERNATIONAL TELECOMMUNICATIONS CORPORATION
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1.0 GENERAL ...................................................... 1
1.1 Purchase of Material and/or Services ......................... 1
1.2 Term of Agreement ............................................ 1
1.3 Definitions .................................................. 1
2.0 STATEMENTS OF WORK; ORDERING MATERIAL & SERVICES ............. 7
2.1 Statement of Work ............................................ 7
2.2 Orders ....................................................... 7
2.3 Price Confirmation ........................................... 8
2.4 Price ........................................................ 8
2.5 Termination of Order ......................................... 8
2.6 Taxes ........................................................ 8
2.7 Engineering Planning and Estimating Tool (Class V Only) ...... 9
3.0 SHIPPING AND HANDLING OF MATERIALS ........................... 9
3.1 Shipping and Billing ......................................... 9
3.2 Shipping Interval ............................................ 9
3.3 Packaging .................................................... 10
3.4 Transportation ............................................... 10
3.5 Risk of Loss ................................................. 10
3.6 Title ........................................................ 10
3.7 Security Interest ............................................ 10
4.0 INSTALLATION AND ACCEPTANCE .................................. 11
4.1 Conditions Normally Provided by ITC .......................... 11
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4.2 Conditions Normally Provided by Ericsson ..................... 13
4.3 Installation/Cutover Assistance .............................. 14
4.4 Installation Quality Inspection .............................. 14
4.5 Inspection and Notification of Completion .................... 15
4.6 Work Hereunder ............................................... 15
4.7 Right of Access .............................................. 15
4.8 Identification Credentials ................................... 15
4.9 Plant Rules .................................................. 15
4.10 Acceptance ................................................... 16
5.0 INVOICING AND PAYMENT TERMS .................................. 16
5.1 Invoices ..................................................... 16
5.2 Payment ...................................................... 16
5.3 Disputed Invoices ............................................ 17
6.0 INTELLECTUAL PROPERTY ........................................ 17
6.1 Rights in Software ........................................... 17
6.2 Infringement ................................................. 19
6.3 Source Programs and Technical Documentation .................. 20
7.0 WARRANTIES AND REPRESENTATIONS; LIABILITY .................... 20
7.1 Warranty ..................................................... 20
7.2 Radio Frequency Energy Standards ............................. 24
7.3 Registration ................................................. 24
7.4 Liability, Insurance and Indemnity ........................... 24
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7.5 Limitation of Liability ...................................... 25
8.0 ERICSSON SUPPORT ............................................. 25
8.1 Customer Service ............................................. 25
8.3 Product Changes .............................................. 26
8.4 Replacements Out of Warranty ................................. 28
8.5 Continuing Availability ...................................... 28
8.6 Emergency Replacement Service ................................ 29
8.7 Extraordinary Support ........................................ 30
8.8 Training ..................................................... 30
8.9 Regulatory Affairs ........................................... 30
9.0 EXCHANGE OF INFORMATION ...................................... 30
9.1 Treatment of Proprietary Information ......................... 30
9.2 Compatibility Information .................................... 31
9.3 Interconnect Information ..................................... 31
10.0 MATERIAL MARKING ............................................. 31
10.1 Insignia ..................................................... 31
10.2 Marking ...................................................... 32
11.0 GENERAL TERMS AND CONDITIONS ................................. 32
11.1 Termination of Agreement ..................................... 32
11.2 Assignment by ITC ............................................ 32
11.3 Assignment by Ericsson ....................................... 33
11.4 Subcontracting ............................................... 33
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11.5 Force Majeure ................................................ 33
11.6 Choice of Law ................................................ 33
11.7 Arbitration .................................................. 34
11.8 Publicity .................................................... 34
11.9 Notices ...................................................... 34
11.10 Releases Void ................................................ 35
11.11 Severability ................................................. 35
11.12 Survival ..................................................... 36
11.13 Section Headings ............................................. 36
11.14 Non-Waiver ................................................... 36
11.15 Compliance with Laws ......................................... 36
11.16 Entire Agreement ............................................. 36
Attachment A - STATEMENT OF WORK
Attachment B - CUSTOMER SERVICES
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This General Purchase Agreement is entered into by International
Telecommunications Corporation, a Delaware corporation (hereinafter "ITC") with
principal offices located at 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx and Ericsson
Inc., a Delaware corporation, acting through its Network Systems division
(hereinafter "Ericsson") with principal offices located at 0000 X. Xxxxxxx Xx.,
X.X. Xxx 000000, Xxxxxxxxxx, Xxxxx 00000.
1.0 GENERAL
1.1 Purchase of Material and/or Services
Material and/or Services set out in the SOW and Attachment B are hereby
offered for sale by Ericsson and may be purchased by ITC in accordance
with the terms and conditions stated herein.
1.2 Term of Agreement
The term of this Agreement shall commence as of September 14, 1995, and
unless terminated under the section entitled "TERMINATION OF AGREEMENT",
shall continue in effect until June 21,1998.
1.3 Definitions
1.3.1 Acceptance
"Acceptance" means, with respect to each System, that the System has
been installed and the conditions described in the section entitled
"ACCEPTANCE" have been successfully met.
1.3.2 Affiliated Party
"Affiliated Party" means a partner, subsidiary, parent, or sister
subsidiary either directly or indirectly controlling or controlled
by a Party hereto or directly or indirectly controlled by a common
parent of the affiliate and the Party.
1.3.3 Agreement
"Agreement" means this General Purchase Agreement, as amended from
time to time, the SOW, any Appendices and Exhibits expressly made a
part of this Agreement, and to the extent provided in the subsection
hereof entitled "Entire Agreement", any Orders.
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1.3.4 Application System
"Application System" means a collection of Hardware and Software
products designed to meet all of the requirements of a certain
market for a specific type of exchange.
1.3.5 Change Order
"Change Order" means any change to an original Order, including but
not limited to a change in Material or requested delivery or
completion date specified in an Order, which shall be detailed in a
writing referencing the original Order.
1.3.6 Competing Business
"Competing Business" means the business of developing, manufacturing
or selling central office switching hardware or software; cellular
switching hardware or software; wide area paging hardware or
software; PBX hardware or software; personal communications services
hardware or software; broadband hardware or software; advanced
intelligent network (AIN) hardware or software; and/or related
services.
1.3.7 Correction Notice Application (CN-A)
"Correction Notice Application (CN-A)" means a document that lists
modifications (either corrections or functional additions) to be
installed in a specific application product in an Application
System.
1.3.8 Customer Services
"Customer Services" means the Services described in Attachment B.
1.3.9 Derivative Work
"Derivative Work" means computer program instructions that
incorporate all or portions of Software directly or through linking
and locating.
1.3.10 Designated Equipment
"Designated Equipment" means the Ericsson's digital central office
switching equipment supplied to ITC under this Agreement.
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1.3.11 Documentation
"Documentation" means Ericsson's product documentation, technical
specifications and such other information which contains standard
descriptive operating, installation, engineering, maintenance,
training and repair information on Material.
1.3.12 E&F
"E&F" means "engineer and furnish"; Ericsson engineers and
furnishes (but does not install) Material.
1.3.13 EF&I
"EF&I" means "engineer, furnish and install"; Ericsson engineers,
furnishes, and installs Material.
1.3.14 Engineering Services
Engineering Services means Ericsson's preparation of installation
specifications, preparation and/or updating of office records
including drafting Services as required, preparation of a summary of
Material including miscellaneous Material not specifically itemized
in ITC's Order but necessary for the proper functioning of Material,
and other similar Services.
1.3.15 Ericsson
"Ericsson" means Ericsson Inc., Network Systems division, and its
successors or assigns
1.3.16 Expansion
"Expansion" means the modification of an existing site by adding
Hardware or upgrading Software.
1.3.17 F&I
"F&I" means "furnish and install"; Ericsson furnishes and installs
(but does not engineer) Material.
1.3.18 Furnish Only
"Furnish Only" means the providing of Material by Ericsson without
performance of Engineering Services or Installation Services.
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1.3.19 Generic Computer Program
"Generic Computer Program" means a software computer program
containing a set of computer instruction steps that are generic to
programs other than the specific version of the computer program
furnished under the License described in "Rights in Software". For
Software furnished under a given license, only the applicable
computer program steps necessary to provide the licensed feature are
enabled.
1.3.20 Hardware
"Hardware" means equipment manufactured by Ericsson or an Affiliated
Party of Ericsson and inherent "original equipment manufacture"
equipment integrated during manufacturing into a System provided to
ITC.
1.3.21 lmprovement/Enhancement
"lmprovement/Enhancement" means any improvement or enhancement to
the Software, and any improvement or enhancement to the composite
Hardware and Software design of the Designated Equipment that
includes an improvement or enhancement to the Software.
1.3.22 Improvement/Enhancements Grant-Back Rights
"lmprovement/Enhancements Grant-Back Rights" means royalty-free
worldwide, nonexclusive rights to make, have made, sell (including
disposition to an end-user) and use software, patents, copyrights,
firmware and semiconductor mask registration rights related to
Improvements/Enhancements, including the right to sublicense to
Affiliate Parties (such sublicense to survive any subsequent
termination of the affiliation).
1.3.23 Installation Services
"Installation Services" means Ericsson's installation of Material
performance verification testing, equipment removal, cable mining
and such other similar Services.
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1.3.24 ITC
"ITC" means International Telecommunications Corporation, its
successors and assigns.
1.3.25 Material
"Material" means Hardware and/or Software furnished by Ericsson
under this Agreement.
1.3.26 Order
"Order" means ITC's written form of purchase order for purchasing
Systems, Material and/or Services hereunder and all technical
documentation included therein.
1.3.27 Original Equipment Manufacturer (OEM)
"Original Equipment Manufacturer" (OEM) means hardware, equipment or
software not manufactured by Ericsson (or an Affiliated Party of
Ericsson) that is selected by ITC to be installed as part of a
System. OEM does not include "original equipment manufacturer"
equipment integrated during manufacturing into a System so as to
become Hardware.
1.3.28 Parties
"Parties" means ITC and Ericsson; "Party" means ITC or Ericsson.
1.3.29 Related Documentation
"Related Documentation" means materials useful in connection with
Software, such as, but not limited to, flow charts, logic diagrams,
program listings, program descriptions and Specifications of the
Software. Related Documentation does not include the source code for
Software.
1.3.30 Replacement Material
"Replacement Material" means an item of functionally equivalent
replacement Material that is exchanged for defective or destroyed
Material and provided as a Customer Service.
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1.3.31 RFA
"RFA" means Ready for Acceptance and is the date that Ericsson
notifies ITC that Material is ready for Acceptance testing.
1.3.32 Services
"services" means Customer Services, incidental services (such as
hauling and hoisting), and other work performed by Ericsson under
this Agreement.
1.3.33 Software
"Software" means the computer programs that are tailored for use in
the operation of the Designated Equipment, including the following
(1) a set of machine readable computer program instructions
recorded on magnetic disks or other storage media; and
(2) all releases, issues or short sequences of computer program
instruction modifications ("patches") furnished by Ericsson to
ITC as a replacement for or for the modification of previously
furnished Materials; and
(3) all Derivative Works or modifications made by ITC of any of
the foregoing; and
(4) all copies of any of the foregoing, in whole or in part by
whomever made.
1.3.34 SOW
"SOW" means a Statement of Work executed in accordance with the
subsection hereof entitled "Statement of Work".
1.3.35 Specifications
"Specifications" means Ericsson's technical specifications for the
Materials as existing on the date the Material was ordered, or any
specifications specified and mutually agreed upon by ITC and
Ericsson in an individual Order.
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1.3.36 System
"System" means all the elements of a central office switching system
or an Expansion thereof including Material, Documentation and
support items.
2.0 STATEMENTS OF WORK; ORDERING MATERIAL & SERVICES
2.1 Statement of Work
Ericsson and ITC shall agree to a detailed SOW in the form of Attachment
A. Upon execution, the SOW shall be incorporated into this Agreement as an
amendment. Unless otherwise stated in the SOW, the terms of the SOW shall,
with regard to the work described therein, prevail in the event of a
conflict between the terms of the SOW and this Agreement. If this
Agreement states that a price, charge, or fee shall be stated in the SOW,
and such price, charge, or fee is not so stated, the parties shall be
deemed to have agreed to apply Ericsson's standard price, charge, or fee.
2.2 Orders
To purchase Material and Services, ITC shall send Orders to Ericsson.
Unless otherwise specified in writing, the provisions of this Agreement
shall apply to all Orders placed by ITC for Material or Services specified
herein. ITC's failure to specifically identify this Agreement on any Order
shall not affect the applicability of these terms and conditions.
Orders for Material and/or Services entered by ITC against this Agreement
shall include: (a) requested delivery and/or completion date; (b) location
to which the Material is to be shipped and/or Services performed; (c)
location to which invoice shall be sent for payment; (d) ITC's Order
number; and (e) location to which Documentation shall be shipped. Ericsson
shall acknowledge receipt of each Order and shall indicate whether the
requested schedule of dates is acceptable. Any changes to an accepted
Order must be mutually agreed upon and delineated in a Change Order
referencing the original Order.
Ericsson shall accept Orders requiring delivery in less than standard
intervals at prices and intervals agreed to by ITC and Ericsson.
Orders placed for Material and/or Services for which Ericsson has received
prior notification of office-specific data shall be deemed accepted by
Ericsson unless Ericsson provides to ITC written notice to the contrary
within ten (10) working days of receipt of such Order and provided such
order is identical to the office-specific data agreed upon. All other
Orders shall be deemed accepted by Ericsson when Ericsson sends a price
confirmation letter to ITC.
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2.3 Price Confirmation
Ericsson shall provide a price confirmation letter for each Order entered
by ITC and accepted by Ericsson for Material and/or Services. This price
confirmation letter shall reflect all applicable discounts.
ITC shall acknowledge acceptance or rejection of the price confirmation
letter within thirty (30) days of the date of such letter. A price
confirmation letter shall be deemed accepted by ITC if notice of rejection
is not given to Ericsson within thirty (30) days of the date of such
letter. Upon acceptance, all provisions of the price confirmation letter
shall be binding unless mutually agreed upon and delineated in a Change
Order.
The only Material not governed by price confirmation letters or Order
acknowledgements is site specific Material for which ITC is unable to
determine quantity until job start, such as the number of
cross-connections. Ericsson shall acknowledge all such exclusions in the
price confirmation letter or Order acknowledgement and, if available,
shall include unit rates for all excluded items. Unless the SOW expressly
states otherwise, prices for Services stated in an SOW shall be based on
the level of staffing that Ericsson typically employs to render such
Services under similar circumstances in locations at which the staffing
level is unaffected by the rules or activities of unions, trade guilds,
or similar organizations. Accordingly, Customer shall reimburse Ericsson
for all costs related to any additional staffing that (i) may be required
by the applicable rules of such organizations or (ii), considering the
activities of such organizations in the area Ericsson considers reasonably
prudent to incur.
2.4 Price
Without prejudice to the last paragraph of the section entitled "Price
Confirmation". Prices for Material and Services provided in the United
States shall not exceed those in effect on the date an Order is placed,
according to the SOW (in the cases of Material and Services other than
Customer Services) and Attachment B (in the case of Customer Services).
2.5 Termination of Order
ITC may at any time prior to delivery of the Material cancel any Order(s)
placed hereunder in whole or in part by written notice to Ericsson. Upon
cancellation, ITC shall be liable to Ericsson for twenty percent (20%) of
the total price of the Order, if canceled more than thirty (30) days
before the scheduled delivery date, or forty percent (40%) of the total
price of the Order, if canceled thirty (30) days or less
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before the scheduled delivery date for the Order. ITC may not cancel an
Order after the Material has been delivered.
2.6 Taxes
ITC shall be liable for and shall reimburse Ericsson for the following tax
payments with respect to the transactions under this Agreement: federal
manufacturers' and retailers' excise taxes, value added taxes, state and
local sales taxes and use taxes, and similar taxes assessed upon the sale
of Material and Services hereunder (but not upon income therefrom). Taxes
payable by ITC shall be billed as separate items on Ericsson's invoices
and shall not be included in Ericsson's prices. ITC shall have the right
to have Ericsson contest with the imposing jurisdiction, at ITC's expense,
any such taxes that ITC deems are improperly levied.
2.7 Engineering Planning and Estimating Tool (Class V Only)
Upon request and at mutually agreed upon price, Ericsson shall provide to
ITC, and keep current, a tool for estimating the price of Ericsson's
Material and/or Services prior to Order placement. Such tool shall be
capable of estimating the actual purchase price for such Material and/or
Services within ten percent (10%). Whether manual or mechanized, the
output of such tools shall provide readily identifiable unit prices and
discrete totals for Material and/or Services.
3.0 SHIPPING AND HANDLING OF MATERIALS
3.1 Shipping
Unless instructed otherwise by ITC, Ericsson shall: (1) ship to the
destination designated in the Order in accordance with specific shipping
instructions; (2) see that all subordinate documents bear ITC's Order
number; (3) enclose a packing memorandum with each shipment and when more
than one package is shipped, identify the one containing the memorandum;
(4) xxxx ITC's Order number on all packages and shipping papers; and (5)
render invoices in duplicate or as otherwise specified showing Order
number.
3.2 Shipping Interval
The delivery schedule applicable to each Order, except Orders for
Replacement Material, will be agreed upon by Ericsson and ITC and set out
in the Order and Ericsson's acceptance of the Order. For ITC's planning
purposes, Ericsson has indicated that Material can usually be shipped
within the standard lead times set out in the SOW. In the event that the
time between the date that Ericsson receives ITC's Order and the requested
RFA date is less than the standard lead times, the
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expedite fees set out in the SOW shall apply. Ericsson agrees not to ship
Material prior to the agreed upon delivery schedule without ITC's prior
authorization.
3.3 Packaging
Ericsson shall, at no charge, package Material in suitable boxes, reels,
bundles, pieces, coils, etc. which will provide protection against damage
during shipment, handling and storage in reasonably dry, unheated
quarters.
3.4 Transportation
Material shall be shipped for destination, freight prepaid. Freight
charges shall be added as a separate item to Ericsson's invoice. Material
purchased under this Agreement shall be shipped to ITC subject to freight
charges applicable to such Materials under the National Motor Freight
classification, or any other applicable tariff. Any additional charges
incurred in moving the Material to its final resting place (including
without limitation hoisting, stair carries or long carries) shall be at
ITC's expense.
3.5 Risk of Loss
ITC shall assume the risk of loss and damage for all Furnish Only Material
Orders upon delivery to ITC of such Material at the location designated on
the Order. When Ericsson is providing Material and Installation Services,
Ericsson will retain the risk of loss and damage until Acceptance. ITC
shall notify Ericsson promptly of any claim and shall cooperate with
Ericsson in every reasonable way to facilitate the settlement of any such
claim.
3.6 Title
Unless otherwise specified herein, title to Material, except Software,
furnished by Ericsson shall vest in ITC when the Material has been paid
for in full by ITC.
3.7 Security Interest
Notwithstanding the section entitled "TITLE," ITC hereby grants to
Ericsson a lien on and a security interest (which, to the fullest extent
permitted by applicable law, shall be deemed to be a purchase money
security interest) in the Materials (and, to the fullest extent permitted
by applicable law, Ericsson hereby reserves and retains such lien and
security interest), and each of them, and in and to all accessions and
appurtenances thereto and any and all proceeds and products thereof to
secure the payment in full of the purchase price for the Materials payable
by ITC to Ericsson hereunder. If ITC defaults in the payment when due of
all or any portion of the purchase price or any other amount now or
hereafter owed to Ericsson hereunder, Ericsson shall have and may
exercise, in addition to all rights and remedies otherwise available to
Ericsson under applicable law, all of the
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rights and remedies of a "secured party" under the Uniform Commercial Code
as in effect in the State of New York. ITC agrees to execute, deliver,
file, and record any one or more financing statement or other document,
and to take such other action, as Ericsson may from time to time deem
appropriate to create, preserve, perfect, or validate the lien and
security interest granted hereby in any jurisdiction. Ericsson may at any
time file a photographic or other reproduction at this agreement as, and
the same shall be effective as, a financing statement with any filing
office in any jurisdiction.
4.0 INSTALLATION AND ACCEPTANCE
4.1 Conditions Normally Provided by ITC
The following items and conditions will normally be provided by ITC.
Should ITC fail to provide the following, Ericsson may invoice ITC for
such items, in addition to the established installation price.
Landlord Approvals - In the event that ITC does not own the location where
the Material is to be installed, ITC shall obtain the owner's written
approval at the installation.
General Building Conditions - ITC shall ensure that the premises meet the
requirements contained in the Specifications and/or Documentation, and are
in such condition as not to be injurious to the employees of the Ericsson
or the Material to be installed.
Repairs to Building - ITC shall make alterations and repairs necessary for
proper installation of Material, except for damage caused by Ericsson.
Openings in Buildings - No later than the Floor Plan Complete date,
Ericsson shall provide ITC with drawings and designs indicating the
necessary openings and ducts for cable and conductors in floors and walls.
ITC shall not make changes to the installation site after receiving such
drawings, other than to furnish such suitable openings and ducts prior to
the main ship date. No later than the Floor Plan Approval date, ITC shall
agree to specific locations for the necessary openings and ducts. The
Floor Plan Complete date and the Floor Plan Approval date shall be set in
accordance with the schedule set out in the SOW.
Ceiling Inserts - ITC shall provide ceiling inserts as deemed necessary
during site survey by Ericsson, or as otherwise mutually agreed upon prior
to installation start date.
Electric Current, Temperature Control and Light - By the installation
start date, ITC shall provide electric current for charging storage
batteries and for any other
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necessary purposes with suitable terminals in rooms where work is to be
performed; temperature and general illumination in rooms in which work is
to be performed or Material stored shall be equivalent to that ordinarily
furnished for similar purposes in a working central office.
Toilet Facilities - ITC shall provide Ericsson's employees access to
available toilet facilities, or Ericsson, at its option, may provide
facilities at ITC's cost
Access to Existing Facilities - ITC shall permit Ericsson reasonable use
of such portions of the existing building or equipment as agreed upon
prior to the start of installation, that are necessary for the storage and
assembly of Material and for performing necessary administrative duties
associated with the job.
Use of Available Testing Equipment - ITC shall allow Ericsson use of
installed equipment required for the performance of tests to ensure proper
functioning of the System. ITC and Ericsson shall mutually agree, prior to
the start of installation, on testing procedures and the availability of
test apparatus. Such use shall not unduly interfere with maintenance of
operating telephone equipment. ITC and Ericsson shall mutually determine
that such testing equipment is in proper adjustment.
Grounding - By the installation start date, ITC shall provide access to
suitable central office ground.
Requirements for ITC Circuits - ITC shall furnish information covering the
proper test and readjustment requirements for apparatus and requirements
for circuit performance associated with special circuits or standard
circuits modified by ITC drawings.
Trunks for Testing - By the installation start date, ITC shall furnish
sufficient trunk facilities for testing purposes.
Main Distribution Frame (MDF) Cross-Connections and Heat Coils - ITC shall
run MDF cross-connections and install heat coils unless otherwise noted in
the Order.
Designation Strips - ITC shall number all designation strips unless
otherwise noted in the Order.
Fire Protection Apparatus - ITC shall install permanent fire protection
apparatus.
Furniture and Fixtures - ITC shall provide and/or install all furniture
and fixtures unless otherwise noted in the Order.
Hazardous Materials - ITC shall notify Ericsson of the type of existing
switching equipment at the site, if any, and the presence of any known or
suspected
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hazardous materials at the site. ITC shall be responsible for arranging
for the removal and disposal of any hazardous materials from the site.
Customer Not Ready - In the event that installation and RFA will be
delayed due to ITC's inability to properly prepare site for installation
and through no fault of Ericsson, Ericsson shall notify ITC in writing
that a Customer Not Ready (hereinafter "CNR") condition threatens the RFA
date, and shall detail the specific items to be corrected. If installation
has not yet begun, ITC shall have ten (10) days after receipt of
notification from Ericsson to correct the CNR condition. If the CNR
condition has not been corrected within ten (10) days, beginning the
eleventh (11th) day, Ericsson shall be entitled to recover, from ITC,
Ericsson's additional, reasonable, and substantiated costs incurred during
the delay period resulting from ITC's failure to properly prepare the site
in accordance with the site preparation instructions furnished by
Ericsson. If the CNR condition is discovered after installation has begun,
Ericsson shall be entitled to recover such costs from ITC two (2) days
after notice of the CNR condition is given. ITC and Ericsson shall
mutually agree on an acceptable revised RFA schedule if it appears that
the RFA date cannot be achieved.
4.2 Conditions Normally Provided by Ericsson
The following items and conditions will normally be provided by Ericsson
(if required by the conditions of the specific installation) and are to be
included in the Installation Services price quote from Ericsson, where
applicable, unless otherwise agreed upon by ITC and Ericsson.
Receipt and Inspection of Material - Ericsson's installers shall receive
and inspect Material shipments, report shortages or damaged or defective
Material to Ericsson's or ITC's organization responsible for replacement,
and, when Ericsson is responsible for replacement and/or shortages,
provide a copy of all re-orders and/or shortage reports to ITC.
Protection of Material, Equipment or Buildings - Ericsson shall provide
reasonable protection for equipment or buildings. Ericsson shall make
necessary repairs of damage to equipment or buildings caused by Ericsson.
Removal of Disconnected Equipment - Ericsson's installer shall advise ITC
of all equipment removed or disconnected within five (5) working days of
performing such work. ITC shall be responsible for disposition of surplus
and removal of disconnected equipment.
Determination of Working Equipment - Ericsson's installer shall determine
that working equipment is in satisfactory condition prior to performing
additions, modifications and/or change work. All such equipment shall be
returned to ITC in an acceptable working condition.
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Engineering Errors - When Ericsson also provides the Engineering Services
for Material, Ericsson shall be responsible for correcting engineering
errors at no additional charge to ITC and for issuing of credit for any
excess Material and/or Services resulting from such engineering errors.
Hauling and Hoisting - Ericsson shall arrange all warehousing (except for
necessary storage of equipment shipped to site), hauling and hoisting
necessary to complete Installation Services. Warehousing, hauling and
hoisting shall be at ITC's expense.
Tools and Equipment - Ericsson shall provide for use in the installation
all labor, tools and equipment customarily furnished to its customers when
undertaking Installation of the Materials hereunder.
4.3 Installation/Cutover Assistance
For Furnish Only Orders, Ericsson agrees to make available at the
installation site Engineering and Installation Services to render
installation and cutover assistance, as ordered by ITC and accepted by
Ericsson and at the charges set out in Attachment B.
4.4 Installation Quality Inspection
Upon reasonable notice to Ericsson, ITC shall have the right to inspect
and test any Material on order, and to monitor Ericsson's testing thereof
at Ericsson's test facility prior to shipment. Such inspection and testing
shall be at ITC's own expense and shall not unreasonably interfere with
installation.
ITC may, at ITC's discretion, perform quality inspection(s) with
reasonable notice to Ericsson, on a non-interference basis, at any time
during installation prior to Acceptance. Such inspection shall be at ITC's
own expense.
Ericsson will maintain a current level of Documentation (Installation and
Engineering Handbook(s)) related to the documented installation process
and shall make these documents available to ITC upon request.
Any items found to be in non-conformance with the documented installation
requirements shall be immediately reported in writing by ITC to Ericsson.
Ericsson will provide corrective action for any non-conforming items prior
to RFA.
4.5 Inspection and Notification of Completion
ITC shall have the right to observe, on a non-interference basis, all
phases of Installation Services and shall be advised of job progress by
Ericsson. Such
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inspection shall be at ITC's own expense. Ericsson shall notify ITC in
writing of the completion of Ericsson's Installation Services, including
the performance of all applicable equipment tests. Ericsson shall provide
ITC with a copy of such applicable test results.
4.6 Work Hereunder
It is understood that visits by Ericsson's representatives or Ericsson's
suppliers' representatives for inspection, adjustment or other similar
purposes in connection with Material and/or Services purchased hereunder
shall for all purposes be deemed "WORK HEREUNDER" and shall be at no
charge to ITC unless otherwise provided in this Agreement or in another
writing signed or duly acknowledged by authorized representatives of both
Parties.
4.7 Right of Access
The Parties shall normally permit access to their respective facilities in
connection with work hereunder. No charge shall be made for such access.
It is agreed that prior notification will be given when access is
required.
4.8 Identification Credentials
Either Party may, at its discretion, require the other Party's employees,
representatives and agents to exhibit identification credentials issued by
the requiring Party, in order to gain the right of access in connection
with this Agreement.
4.9 Plant Rules
All persons furnished by Ericsson shall, while on ITC's premises, comply
with all ITC's rules and regulations provided such rules and regulations
were clearly stated and agreed upon prior to start of Services. Ericsson
shall acquaint itself with conditions governing the delivery, receipt and
storage of Materials at the work site so that Ericsson will not interfere
unduly with ITC's operations. Ericsson shall not unduly stop, delay or
interfere with ITC's work schedule without the prior approval of ITC's
representative. Ericsson shall provide and maintain sufficient covering to
protect ITC's stock and equipment from the action of Ericsson's work.
4.10 Acceptance
After receipt of Ericsson's notice that the System is RFA, ITC shall, at
its own expense, conduct appropriate acceptance tests agreed to by
Ericsson for the Material installed. If any Material and/or feature does
not successfully meet the requirements of the acceptance tests, ITC shall
so notify Ericsson in writing within thirty (30) days of the RFA date.
Ericsson shall, at no additional charge, promptly
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take the actions required to correct the deficiency and upon completion
shall again notify ITC that the System is RFA. After the corrective
action, ITC shall have thirty (30) days to repeat the appropriate
acceptance tests, at ITC's own expense.
If the Material and/or features successfully meet the requirements of the
acceptance tests, ITC shall indicate acceptance by signing a certificate
of acceptance and forwarding a copy thereof to Ericsson within thirty (30)
days of Ericsson's most recent RFA notice. Introduction of the System into
any type of beneficial use or ITC's failure to notify Ericsson of
non-conformities within thirty (30) days of Ericsson's most recent RFA
notice shall constitute ITC's Acceptance.
Acceptance of Installation Services does not constitute a waiver of
Ericsson's responsibility to correct installation defects or deficiencies
found after Acceptance.
5.0 INVOICING AND PAYMENT TERMS
5.1 Invoices
Invoicing and payment terms shall be governed by this section ("INVOICING
AND PAYMENT TERMS") unless otherwise agreed in an accepted Order or in
another writing signed by both Parties. Ericsson shall invoice ITC by
mailing or otherwise transmitting invoices, bills and notices to the
billing address specified in the Order and, for Furnish Only Orders, shall
render separate invoices for each shipment or Order.
5.2 Payment
In the absence of a financing or lease agreement acceptable to Ericsson,
ITC shall pay invoices in advance of any delivery of Engineering Services,
Installation Services, other Customer Services, Material or Software by
Ericsson. Payment for any Engineering Services, Installation Services,
other Customer Services, or Material, or Software, the purchase of which
is being financed, shall be due upon the delivery thereof. Otherwise,
payment terms are net thirty (30) days from receipt of invoice. Payment of
invoices shall be considered past due thirty (30) days after ITC's receipt
thereof. ITC shall pay Ericsson interest on all past due amounts at a rate
of one and one-half percent (1.5%) per month or the maximum amount
allowable by law, whichever is less.
5.3 Disputed Invoices
ITC may withhold payment for any item or amount on an invoice which is the
subject of a good faith dispute; provided, that ITC shall have given
Ericsson written notice of the details of such dispute. Ericsson shall
resolve such disputed amounts by providing sufficient proof and
documentation of the charges, adjusting
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the billing, or issuing credit. If the disputed amount is found to be
valid and the original due date has past, ITC shall make immediate payment
or be subject to interest on the past due amount. ITC shall not otherwise
be entitled to offset any amounts against invoices.
6.0 INTELLECTUAL PROPERTY
6.1 Rights in Software
Ericsson grants and ITC accepts, a perpetual, non-exclusive and
non-transferable (except as explicitly noted herein) license (the
"License") to use and possess the Software on the Designated Equipment,
and to use and possess the Related Documentation subject to the terms of
this section ("INTELLECTUAL PROPERTY").
ITC agrees:
(a) It shall use the Software and Related Documentation solely for the
operation of the applicable Designated Equipment and for no other
purpose; and
(b) It shall limit copying of the Software and the Related
Documentation, in whole or in part, to copies reasonably necessary
for the operation of the Designated Equipment and for the training
by ITC of its personnel, and shall make no other copies; and
(c) It shall reproduce all proprietary notices, including Ericsson's
copyright notices, which appear on or are encoded within the
Software upon all copies, Derivative Works or other modifications
made by ITC; and
(d) The Software (physical materials, including all copies by whomever
made) shall remain Ericsson's property; and
(e) ITC shall not merge any Software with other software computer
program materials to form a Derivative Work or otherwise modify or
alter Software in any manner whatsoever.
(f) It will not reverse engineer, decompile or otherwise make the
Software easier for human comprehension, and will not tamper with or
alter the internal components of the System; and
(g) ITC recognizes that the Software is a Generic Computer Program, and
shall not do, or cause to be done, anything to activate any of the
subsisting non-enabled computer instructions therein. Further,
Ericsson reserves to itself the exclusive right to cause the
subsisting non-enabled program instruction
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steps to be activated (by the issuance under this License of a
version of the Software having the applicable additional computer
instruction steps enabled).
ITC shall have the right to reuse the Software with the Designated
Equipment at another location within ITC's system.
Notwithstanding any other provision hereof, in the event Ericsson develops
Improvement/Enhancements that represent significant "value added" to the
Designated Equipment or which represents a significant improvement in the
performance of the Designated Equipment, Ericsson reserves the right to
market the Improvement/Enhancements as one or more separate products.
ITC hereby grants and agrees to grant to Ericsson, to the extent it
lawfully may, the Improvements/Enhancements Grant-Back Rights related to
any development whether made by Ericsson, ITC, or agents of ITC, of all or
any portion of any Software furnished hereunder pursuant to any request or
specifications by ITC for a design different from Ericsson's design, and
regardless of whether or not ITC has compensated Ericsson for such
development. Title to patents, copyrights, trade secrets and mask
registration developed by Ericsson pursuant to any request or
specifications by ITC and regardless of whether ITC has compensated
Ericsson for such development shall vest in Ericsson; however, Ericsson
shall grant Improvements/Enhancements Grant-Back Rights in such patents,
copyrights, trade secrets and mask registration to ITC.
ITC agrees that any communication or other disclosure of information it
makes to Ericsson related to a request or specification for an
improvement, enhancement, or modification to Ericsson's design of the
Software shall be made upon a nonconfidential basis without any
restriction on Ericsson in its use or dissemination of received
information.
ITC's rights hereunder are assignable to an Affiliated Party that is not
engaged in a Competing Business as part of a transaction in which
ownership of the Designated Equipment is also transferred. It is agreed
that as a condition to the exercise of ITC's right to assign this License,
ITC shall obtain for Ericsson a written assignment by which the assignee
agrees to undertake all of the obligations of assignor and which
identifies and incorporates by reference this License, and intermediate
assignments, prior to any physical transfer of the Software.
Ericsson shall have the right to terminate this License in the event of
any default by ITC of the terms of this Agreement that ITC fails to
correct within thirty (30) days after the receipt of notice from Ericsson.
The termination of the License shall not prejudice any of Ericsson's
rights arising prior thereto, or limit in any way the other remedies
available to Ericsson.
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6.2 Infringement
Ericsson agrees, at its expense, to defend and indemnify ITC in any suit,
claim or proceeding brought against ITC alleging that any Software
licensed hereunder directly infringes any United States patent, copyright,
or trademark; provided that Ericsson is (i) notified of the action within
five (5) business days after ITC knows or has reason to know of the
action, (ii) given all necessary assistance in defending the action, and
(iii) permitted to direct the defense of the action, including all
settlement decisions. Further, Ericsson agrees to pay any judgement based
on infringement rendered in such suit by the final judgement of a court of
last resort, but Ericsson shall have no liability for settlements or costs
incurred without its consent
Should the use of the Software by ITC be enjoined, or in the event that
Ericsson desires to minimize its potential liability hereunder, Ericsson
may fulfill its obligations hereunder by (i) substituting noninfringing,
functionally equivalent software; (ii) modifying the infringing Software
or portion thereof so that it no longer infringes but remains functionally
equivalent; (iii) obtain for ITC, at Ericsson's expense the right to
continue use of such Software; or (iv) if none of preceding is
commercially feasible, refund to ITC the purchase price for the infringing
Material, less depreciation as reflected in ITC's books. This section
("INFRINGEMENT") states Ericsson's entire liability for patent, copyright
or trademark infringement or for any breach of warranty of
noninfringement, express or implied. The foregoing indemnity shall not
apply to any suit, claim or proceedings based upon allegations that a
process or method claim of a patent is infringed, nor to infringements
arising from modification of the Software by anyone other than Ericsson,
nor to allegations of infringement based on the combination of the
Software with software or products supplied by ITC or others, nor to
infringements arising from Software made to the software design of ITC.
ITC agrees to indemnify Ericsson to the extent equivalent to that provided
to ITC hereunder in the event that any suit, claim, or proceedings is
brought against Ericsson based upon any of the foregoing infringement
circumstances caused by ITC.
6.3 Source Programs and Technical Documentation
In the event that Ericsson commits an act of bankruptcy or defaults in
performance of its obligation to furnish, maintain, modify or correct the
most current version of the Software provided to ITC under this Agreement,
Ericsson agrees to furnish to ITC all source programs, Related
Documentation and other information ("Software Source Materials") required
for maintenance, modification or correction of such Software. Should ITC's
use of the Software Source Materials require the use of any invention
covered by a United States patent held by Ericsson, Ericsson agrees not
to assert such patent against ITC for the use of the Software Source
Materials provided to ITC. ITC's use of the Software Source Materials
shall be limited to such use described in the section entitled "RIGHTS IN
SOFTWARE" and to
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Software previously purchased from Ericsson. ITC shall not license any of
the Software Source Materials to any third party. ITC agrees that the
Software Source Materials are Ericsson's Proprietary Information.
7.0 WARRANTIES AND REPRESENTATIONS; LIABILITY
7.1 Warranty
A. Ericsson warrants that Ericsson has good and valid title to the
Material in which ownership is transferred under this Agreement free
and clear of any liens or encumbrances, and with respect to any
Software license rights granted, Ericsson has the right and the
power to grant such rights hereunder.
B. Ericsson further warrants that:
(1) The Material will be free from defects in material and
workmanship, and will perform and be in conformity with the
Specifications.
(2) Subject to the section entitled "INFRINGEMENT", ITC shall have
quiet enjoyment and use of licensed Software as long as such
license(s) shall remain in effect.
(3) To the best of Ericsson's knowledge, the Software shall not
contain any program code, programming instruction or set of
instructions that is intentionally constructed with the
ability to damage, interfere with or otherwise adversely
affect computer programs, data files or hardware without the
consent of ITC.
(4) Services will be free and clear of all liens and encumbrances
and will be performed in a workmanlike manner and in
accordance with the requirements and standards specified
elsewhere in the Agreement and the accepted practices for the
telecommunications industry in the community in which the
Services are performed.
C. The warranties set out in B. immediately above shall apply only
during the periods of time listed below, or any such longer period
as the Parties may agree to in writing (the "Warranty Period"):
(1) For Material (including Software): 12 months
(2) For Engineering and Installation Services: 12 months
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(3) For All Replacement Material (including Software): as provided
above for the remainder of the original unexpired Warranty
Period beginning from the date the Replacement Materials are
received by ITC or for a period of three (3) months from the
date received by ITC, whichever is longer.
Provided, that in the case of defects discovered during the last
thirty (30) days of the Warranty Period, and solely for purposes of
ITC's giving notice of the defect as required by D. immediately
below, the Warranty Period shall extend for thirty (30) days after
the date on which the Warranty Period otherwise expired.
D. Ericsson shall replace or repair Material discovered to be defective
without any additional charge (including transportation), provided
ITC gives notice of such defect prior to expiration of the Warranty
Period. Replacement Materials shall be shipped within thirty (30)
days from Ericsson's receipt of the defective Material, unless ITC
agrees otherwise. Such repair or replacement includes Material,
labor, and Services, and shall be ITC's sole remedy and Ericsson's
sole obligation in the event these warranties are breached. Ericsson
shall, at ITC's request, provide expedited shipment of Replacement
Material at charges set out in Attachment B.
E. The Warranty Period commences as follows:
(1) For Material installed by Ericsson, on the date of ITC's
Acceptance;
(2) For Furnish Only Material, on the date of delivery by Ericsson
to ITC's destination;
(3) For Engineering and Installation Services performed in
connection with EF&I and F&I, on the date of ITC's Acceptance;
and
(4) For Engineering Services performed in connection with E&F
Orders, on the date of ITC's Acceptance of the Materials
engineered by Ericsson.
F. With respect to viruses in the Software, Ericsson makes no
warranties other than as set out in item B.(3) above. Services not
meeting the warranties set out in item B.(4) above shall, at ITC's
option, be reperformed by Ericsson at no cost to ITC.
G. During the Warranty Period:
(1) Ericsson shall, without charge to ITC, provide Software
updates and, upon ITC's request, correct or replace, at
Ericsson's sole discretion,
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any Software or portion thereof found to cause a measurable
deviation from the functionality specified in the Ericsson
Technical Documentation, according to turnaround times
specified in Attachment B.
(2) Ericsson shall implement and install such Software updates at
one ITC site without charge to ITC, and ITC shall be
responsible for the implementation and installation at the
rest of the sites unless ITC has purchased the Update Service
described in Attachment B.
(3) Documentation of corrected or replacement Software and
repaired or replacement Hardware will be furnished to ITC at
no additional charge.
(4) If Ericsson cannot correct a warranty-related problem via
telephone or remote dial-up, emergency support (including
emergency twenty-four (24) hour telephone coverage and on-site
emergency call-out) will be provided at no charge; provided,
that the initial determination of whether the service call is
warranty related is at Ericsson's sole discretion until such
time as the issue is finally determined pursuant to subsection
(M) below.
H. For inherent "original equipment manufacturer" Material not
integrated during manufacturing into the System so as to become
Hardware, Ericsson shall pass through the manufacturer's original
warranty to the extent it is authorized to do so.
I. All warranties shall survive inspection, Acceptance and payment.
J. The warranties set out in this section ("WARRANTIES AND
REPRESENTATIONS; LIABILITY") shall not apply to:
(1) the components of the Material, such as light bulbs and fuses,
which are normally consumed in operation or which have a
normal life inherently shorter than the applicable Warranty
Period.
(2) (i) defects caused by or attributable to modifications made to
the Materials without Ericsson's approval, (ii) combination of
the Materials with hardware or software provided by other
vendors without Ericsson's approval, (iii) misuse of the
Materials, (iv) ITC's failure to implement Software patches or
maintenance releases within thirty (30) days after receipt at
ITC's site, (v) ITC's failure to follow Ericsson's recommended
maintenance procedures, (vi) any unauthorized entry of
software, data and/or commands onto the Materials by any
person or machine either intentionally or unintentionally, or
(vii) any defect,
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non-conformity or deviation to which ITC refuses to give
Ericsson reasonable access and an opportunity to inspect and
remedy, and any further damage caused by such refusal.
(3) Material that has been wired, repaired, altered, stored or
maintained used in a manner not in accordance with
specifications or operating instructions, subject to misuse,
neglect, accident or abuse, or removed or relocated, unless
such actions were carried out by Ericsson or its authorized
subcontractors or the claimed defective condition was not the
result of such actions.
(4) Material that has had its serial numbers removed or altered.
K ITC shall bear all transportation costs and risk of in-transit loss
or damage in connection with all Materials returned to Ericsson;
Ericsson shall bear all transportation costs and risk of in-transit
loss or damage in connection with all material shipped to ITC under
this section ("WARRANTIES AND REPRESENTATIONS; LIABILITY").
L. ERICSSON MAKES NO OTHER WARRANTIES OF ANY KIND EXCEPT AS SET OUT
HEREIN. THESE WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES,
STATUTORY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY
STATUTORY, EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE.
M. Ericsson and ITC shall jointly determine whether a Customer Service
Request ("CSR") is warranty related. If the parties cannot agree to
such determination, the CSR will be escalated to the next level of
management for resolution. In the event that a joint determination
cannot be made at that level, Ericsson shall make the determination
unilaterally.
7.2 Radio Frequency Energy Standards
Material furnished hereunder shall, at the time of shipment, comply, to
the extent applicable, with the requirements of Subpart J of Part 15 of
the Federal Communications Commission's Rules and Regulations, as they
appear at the time of installation, including those sections concerning
the labeling of such Material and the suppression of radio frequency and
electromagnetic radiation to specified levels.
7.3 Registration
When Material furnished hereunder is subject to Part 68 of the Federal
Communications Commission's Rules and Regulations, Ericsson warrants that
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such Material is registered under and complies with Part 68 of the Federal
Communications Commission's Rules and Regulations, including, but not
limited to, all labeling and customer instruction requirements.
7.4 Liability, Insurance and Indemnity
All persons furnished by Ericsson shall be considered solely Ericsson's
employees or agents. Ericsson shall be responsible for compliance with all
laws, rules, and regulations involving, but not limited to, employment of
labor, hours of labor, working conditions, payment of wages and payment of
taxes, such as unemployment, social security and other payroll taxes,
including applicable contributions from such persons when required by law.
Ericsson shall maintain and cause Ericsson's subcontractors to maintain
during the term of this Agreement (1) Worker's Compensation insurance as
prescribed by the law of the state in which Ericsson's obligations under
this Agreement are performed, (2) employer's liability insurance with
limits of at least $1,000,000 each occurrence, (3) comprehensive general
liability insurance and automobile liability insurance if the use of motor
vehicles is required, each with limits of at least $1,000,000 combined
single limit, and (4) specific contractual liability insurance to cover
Ericsson's indemnity obligations under this Agreement with limits as
specified in (3) above.
Upon request, Ericsson shall provide certificates of insurance attesting
to the coverages listed above. Ericsson shall also require its
subcontractors, if any, who may enter upon ITC's premises to maintain
similar insurance and to agree to furnish ITC, if requested, certificates
or adequate proof of such insurance. Certificates furnished by Ericsson or
its subcontractors shall contain a clause stating that ITC is to be
notified in writing at least thirty (30) days prior to cancellation of,
or any material change in, the policy.
Each Party (as "Indemnitor") agrees to indemnify and hold the other (the
"Indemnitee") harmless from and against all damage or injury (including
death) to property or person resulting from the intentional or negligent
acts or omissions of Indemnitor's officers, employees, agents,
contractors or subcontractors in connection with the performance of this
Agreement.
7.5 Limitation of Liability
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, ERICSSON SHALL
IN NO EVENT BE LIABLE FOR LOSS OF PRODUCTION, LOSS OF BUSINESS, LOSS OF
PROFIT, OR ANY OTHER INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY
NATURE IN CONNECTION WITH THIS AGREEMENT, WHETHER OR NOT SUCH DAMAGES WERE
FORESEEABLE OR WHETHER ERICSSON WAS ADVISED
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OF THE POSSIBILITY OF SUCH DAMAGES. THE PRICES GRANTED TO ITC UNDER THIS
AGREEMENT ARE BASED UPON AND ARE PARTIAL CONSIDERATION FOR THIS LIMITATION
OF LIABILITY.
8.0 ERICSSON SUPPORT
8.1 Customer Service
Ericsson's provision of Customer Service is also subject to the terms and
conditions stated in Attachment B.
8.2 Documentation
Ericsson agrees to furnish complete Documentation, as detailed in
Attachment B, ordered by ITC and accepted by Ericsson. Ericsson grants ITC
the right to make copies of the Documentation solely for its internal use
in connection with the operation of the System. ITC shall reproduce the
copyright notice and all proprietary markings on all copies of
Documentation.
8.3 Product Changes
Ericsson may make changes to Material, or modify drawings or manufacturing
specifications provided the changes or modifications do not have a
material impact on performance, reliability, form, fit or function.
Ericsson shall maintain written records of all such changes, and make
these records available for ITC's review upon request
For such changes or modifications that have a material impact on
performance, reliability, form, fit, or function, Ericsson shall identify
each such change or modification and shall submit one copy of a Product
Change Notice ("PCN") for each such change or modification to ITC at least
thirty (30) days prior to the proposed effective date of such change or
modification. ITC may reject any Material offered for sale by Ericsson
which has been changed or modified in a manner unacceptable to ITC. In the
event that any such change or modification is unacceptable to ITC, ITC
shall so advise Ericsson within thirty (30) days of receipt of Ericsson's
PCN.
If ITC has not notified Ericsson that the change or modification is
unacceptable within thirty (30) days following receipt of the PCN,
Ericsson shall, unless instructed to the contrary, forward within the next
thirty (30) day period to each of ITC's field maintenance engineering
organizations a copy of the PCN. Addresses for ITC's regional and field
maintenance engineering organizations will be provided by ITC.
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Product Changes can be issued to fix known problems or introduce new
features. Product Changes are changes that affect form, fit or function,
defined as follows:
Form - physical shape
Fit - mounting arrangement
Function - features and operational design of the circuit
The Parties' obligations upon a Product Change depend on the
classification of the change. The classification of a Product Change shall
be decided by Ericsson in its sole discretion. Product Changes may be
classified as follows:
"A/AC" Changes are required to correct a product deficiency. For
example:
- Safety or fire hazard.
- Electrically or mechanically inoperative.
- Operational or design defects that cause failure rates
that are higher than the Ericsson's advertised product
failure rates on a per-unit rate (i.e., failure in time
for a circuit pack, or a defect causing an adverse
ITC/subscriber reaction).
- Product does not operate as documented in Ericsson's
descriptive literature and/or product technical
Specifications.
"B" Changes made to incorporate improvements in design resulting
in better operation, improved testing and maintenance, longer
life, service improvements, cost reductions to ITC, and
addition of new features. Class B changes are applied to
products being manufactured and may be recommended for
application to existing equipment in the field. The decision
to purchase and apply Class B changes is the responsibility of
ITC.
"D" Changes that incorporate minor new features and design
improvements that do not affect the existing functionality, or
other minor service improvement and test capabilities not
sufficiently significant to require a Class B change.
Component changes which involve physical or electrical
Specification differences to the replaced component and
require a "product identification change" are considered Class
D.
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For Class A and AC Product Changes, Ericsson shall promptly
modify or replace, at no charge, all affected Material
hereunder and Documentation thereto. Ericsson shall supply
relevant Documentation to ITC for all Class A and AC changes
at no charge to ITC. ITC shall be responsible for the
installation of Class A and Class AC changes and Ericsson
shall reimburse ITC based on its established installation time
and standard labor rate unless mutually agreed otherwise.
In the event that ITC has not implemented the Class A or AC
change within three (3) months after Ericsson's notification
to ITC, then such change will be at ITC's expense, and
Ericsson shall be relieved of its responsibility described
herein. In addition, the cost of remedying any damage or
defect caused by ITC's failure to implement Class A or AC
changes shall not be covered by the warranty provisions of
this Agreement
8.4 Replacements Out of Warranty
With respect to Ericsson-manufactured Material ordered but no longer
covered under the section entitled "WARRANTY", Ericsson agrees to provide
Replacement Material for a period of ten (10) years from RFA (or for
Furnish Only Orders, from delivery of the Material). Material to be
replaced will be shipped by ITC to the location designated by Ericsson.
Charges, terms and conditions for out-of-warranty replacement of Material
are set out in Attachment B.
Replacement Material shall be warranted as provided in the section
entitled "WARRANTY".
All transportation costs and risk of in-transit loss or damage incurred
under this section ("ERICSSON SUPPORT") shall be borne by ITC when
shipping to Ericsson, and by Ericsson when shipping to ITC, except that it
shall be borne by ITC on Material shipped to Ericsson hereunder that is
thereafter returned to ITC at ITC's request
8.5 Continuing Availability
Ericsson agrees to offer for sale to ITC, for a period of ten (10) years
from RFA (or for Furnish Only Orders, from delivery of the Material),
functionally equivalent maintenance, replacement and repair parts. Such
parts shall be priced at the then-current agreement price, or if no such
agreement price exists, at a price agreed upon by Ericsson and ITC.
In addition, should Ericsson decide during the life of this Agreement, to
discontinue manufacturing Material, Ericsson shall give at least six (6)
months prior written notice to ITC of such manufacture discontinuance.
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In the event Ericsson fails to continue to supply Material and parts, and
Ericsson is unable to obtain another source of supply for ITC, then ITC
may require Ericsson, without obligation or charge to ITC, to provide ITC
with the technical information and licenses required for ITC to
manufacture, have manufactured or obtain such Material or parts from other
sources. Receiving such information shall be ITC's sole remedy hereunder
for Ericsson's failure to continue to supply Material.
The technical information includes, by example and not by way of
limitation: (a) manufacturing drawings and specifications of raw materials
and components comprising such parts; (b) manufacturing drawings and
specifications covering special tooling and the operation thereof; (c) a
detailed list of all commercially available parts and components purchased
by Ericsson on the open market disclosing the part number, name and
location of the supplier and price lists for the purchase thereof; and (d)
one complete copy of the then-current source code used in the preparation
of any Software licensed or otherwise acquired by ITC from Ericsson
hereunder.
ITC shall treat any technical information supplied hereunder as
proprietary and confidential, and shall limit any products manufactured
hereunder, solely for the use by ITC to maintain or operate Material and
Software previously purchased from Ericsson. In no event shall ITC use any
such technical information or manufacturing rights for any other purpose,
including but not limited to sale or licensing to third parties. ITC
agrees that such technical information shall be Ericsson's Proprietary
Information.
8.6 Emergency Replacement Service
In addition to the Material replacement provisions set out in the sections
entitled "WARRANTY" and "REPLACEMENTS OUT OF WARRANTY", Ericsson agrees,
in the event of an emergency out-of-service condition, to use its best
efforts to ship Replacement Material within twenty-four (24) hours after
notification by ITC for a period of ten (10) years after RFA (or for
Furnish Only Orders, from delivery of the Material). Such emergency
shipment shall be subject to Ericsson's then-current emergency handling
fees. For Material under warranty, there will be no charge for Replacement
Material, and transportation costs will be borne by Ericsson. For Material
not covered under warranty, charges for Replacement Material will be at
the then current agreement price, or if no such agreement exists, at
Ericsson's then-current selling price; transportation costs will be borne
by ITC.
In order to schedule shipment of Replacement Material, ITC may call a
telephone number furnished by Ericsson. This service will be available
twenty-four (24) hours a day and seven (7) days a week.
Defective Material under warranty is to be returned by ITC for credit
within thirty (30) days after ITC's receipt of Replacement Material
hereunder. If such Material
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is not returned, Ericsson shall have the right to invoice ITC at the then
current agreement price, or if no such agreement exists, at Ericsson's
then-current selling price for such Replacement Material.
8.7 Extraordinary Support
Ericsson agrees to provide extraordinary support (Material and/or
Services) to assist ITC in restoring service which has been disrupted due
to catastrophic conditions (fire, flood, etc.) at prices shown in the SOW.
Extraordinary Support is that level of effort required to provide support
in a time frame deemed necessary by ITC consistent with the resource and
manpower limitations of Ericsson. This clause shall not be construed to
require Ericsson to maintain any position or status of readiness to
perform in the future.
8.8 Training
Ericsson agrees to make all training classes offered by the Ericsson
training department available to ITC, according to charges set out in
Attachment B, as ordered by ITC and accepted by Ericsson.
8.9 Regulatory Affairs
If requested by ITC, Ericsson will at ITC's expense provide reasonable
information and assistance required in the planning, conduct and research
associated with regulatory matters in connection with the Material and/or
Services provided herein.
9.0 EXCHANGE OF INFORMATION
9.1 Treatment of Proprietary Information
Any information, whether or not protected by patent or copyright
including, but not limited to, Software, Related Documentation, programs,
files, Specifications, drawings, sketches, models, samples, tools,
business information, pricing information, technical information or other
data, written or otherwise, "which has been furnished or disclosed by
either Party to the other (hereinafter "Proprietary Information") shall be
treated in accordance with the following terms and conditions:
The receiving Party shall put in place and strictly enforce (using all of
its prerogatives, including dismissal of employees or termination of
contracts with its agents or contractors) procedures to ensure that its
employees, contractors or agents are aware of and fulfill the obligations
of this section ("EXCHANGE OF INFORMATION") to hold the disclosing Party's
Proprietary Information in confidence.
--------------------------------------------------------------------------------
Page 29 of (36)
Proprietary Information shall be held in confidence by the receiving Party
and shall be protected from misuse and disclosure with reasonable care,
which shall be at least as diligent as the receiving Party uses for its
own information. Proprietary Information shall not be disclosed to third
parties (which shall include any Affiliated Party of the receiving Party)
without the prior written consent of the disclosing Party. Proprietary
Information shall only be used in connection with this Agreement.
If the receiving Party receives any legal process requiring production of
any Proprietary Information, the receiving Party shall notify the
disclosing Party immediately and shall deliver copies of such process to
the disclosing Party immediately, and prior to compliance with the
process. The receiving Party agrees to cooperate if the disclosing Party
deems it necessary to seek protective arrangements.
9.2 Compatibility Information
Compatibility Information is the technical information, including Software
interfaces (but excluding source code), required to design equipment
and/or software that is functionally interconnectable with the Material
supplied by Ericsson hereunder. For a period of ten (10) years from RFA
(or for Furnish Only Orders, from delivery of the Material), Ericsson
shall supply reasonable Compatibility Information that is currently
available for such Material to ITC within sixty (60) days of a written
request from ITC.
9.3 Interconnect Information
Ericsson shall provide to ITC that information, if currently available,
which gives ITC the necessary technical information and interconnection
standards to interface with Material supplied hereunder. ITC agrees that
such information is Ericsson's Proprietary Information.
10.0 MATERIAL MARKING
10.1 Insignia
Upon ITC's written request, at mutually agreed charges, certain of ITC's
trademarks, trade names, insignia, symbols, decorative designs, or
evidences of ITC's inspection (hereafter "Insignia"), will be properly
affixed by Ericsson to the Material furnished, provided such insignia does
not adversely affect the operation of such Material. Such Insignia will
not be affixed, used or otherwise displayed on the Material furnished or
in connection therewith without ITC's written approval.
--------------------------------------------------------------------------------
Page 30 of (36)
10.2 Marking
Ericsson shall xxxx all Material furnished hereunder for identification
purposes as follows:
(a) Article/model/part number and serial number, if applicable;
(b) Ericsson tracks warranty by a serialization process and does not
xxxx Material with month and year of manufacture. Within sixty (60)
days from ITC's Acceptance, Ericsson will provide on personal
computer (P.C.) floppy diskette, on a one-time basis, all serial
numbers and the warranty dates in each applicable System.
(c) Other identification which might be requested by ITC and agreed to
by Ericsson, at mutually agreeable charges:
i) time specification for agreement and any charges involved,
ii) allowance for maintenance and repair,
iii) audit to verify time and expense for payment.
11.0 GENERAL TERMS AND CONDITIONS
11.1 Termination of Agreement
In the event either Party breaches or defaults on any of the terms or
conditions of this Agreement or any Orders hereunder, and such breach or
default continues for thirty (30) days after the aggrieved Party gives
written notice of the breach to the breaching Party, then the aggrieved
Party shall have the right to cancel this Agreement or any affected
Order(s) placed by ITC without any charge, obligation or liability
whatsoever, except as to the payment for Material already received and
accepted by ITC and/or Services completed.
In the event that ITC is sold (whether through a sale of substantially all
of ITC's assets or a sale of more than fifty percent of ITC's or ITC's
parent's stock), merged or otherwise transferred to an entity engaged in a
Competing Business, Ericsson shall have the right to terminate the
Agreement with thirty (30) days written notice to ITC.
11.2 Assignment by ITC
Subject to Ericsson's approval (which shall not be unreasonably withheld),
ITC may assign this Agreement, or the SOW (and corresponding Orders) under
this Agreement, in whole or in part to any of ITC's Affiliated Parties
that are not engaged in a Competing Business.
--------------------------------------------------------------------------------
Page 31 of (36)
11.3 Assignment by Ericsson
With thirty (30) days prior written notice to ITC, Ericsson may assign
this Agreement or the SOW (and corresponding Orders) under this Agreement,
in whole or in part to any of Ericsson's Affiliated Parties that are not
engaged in the business of providing local and/or interexchange
telecommunications services in North America.
11.4 Subcontracting
Ericsson shall have the right to subcontract any work under this
Agreement; provided that Ericsson remains wholly responsible for such
work.
11.5 Force Majeure
Neither Ericsson nor ITC shall be held responsible for any delay or
failure in performance of any part of this Agreement to the extent that
such delay or failure is caused by fire, flood, explosion, war, strike,
embargo, government requirement, civil or military authority, act of God,
or any other similar causes beyond Ericsson's or ITC's control
("Condition"). If any such Condition occurs, the party delayed or unable
to perform shall give immediate notice to the other party, and the party
affected by the other's delay or inability to perform after a ninety (90)
day delay period may elect to: (a) terminate this Agreement or part
thereof as to Material, Software, or Services not already received; (b)
suspend this Agreement for the duration of the Condition, buy or sell
elsewhere Material, Software or Services comparable to those to be
obtained under this Agreement, and deduct from any commitment the quantity
bought or for which commitments with other vendors have been made; or (c)
resume performance of this Agreement once the Condition ceases and permit
the affected party to extend the period of this Agreement up to the length
of time the Condition endured.
Unless written notice is given within thirty (30) days after the affected
party is notified of the Condition, (b) shall be deemed selected.
The foregoing constitutes the sole remedy in the event of a force majeure
Condition affecting either party.
11.6 Choice of Law
The construction, interpretation and performance of this Agreement shall
be governed by and construed in accordance with the laws of the State of
New York, excluding its rules on conflict of laws.
--------------------------------------------------------------------------------
Page 32 of (36)
11.7 Arbitration
All disputes arising out of or in connection with this Agreement or any
transaction hereunder shall be finally settled under the Commercial
Arbitration Rules of the International Chamber of Commerce then in effect,
by three arbitrators appointed in accordance with such rules. The
arbitrators' award shall be final and binding. The Parties shall be
entitled to document production and depositions upon oral examination in
accordance with the US Federal Rules of Civil Procedure, provided that
each Party shall be entitled only to a total of three examinations of not
more than one day in length. Judgment upon the award rendered may be
rendered in any court having jurisdiction over the Party against which the
award is rendered.
The arbitration shall take place in New York, New York, or such other
place as the Parties may agree. The arbitration award shall include (i) a
provision that the prevailing Party in such arbitration shall recover its
costs of the arbitration and reasonable attorneys' fees from the other
Party, and (ii) and amount of such costs and fees. Performance under this
Agreement shall continue during any arbitration proceeding, unless
otherwise provided for in this Agreement or by the arbitrator.
11.8 Publicity
Each Party agrees to submit to the other Party all advertising, sales
promotion, press releases and other publicity matters relating to the
Material furnished or the Services performed by the other Party under this
Agreement wherein each Party's names or marks are mentioned or language
from which the connection of said names or marks therewith may be inferred
or implied; and both Parties further agree not to publish or use such
advertising, sales promotion, press releases, or publicity matters without
the other Party's prior written approval. The foregoing shall not apply to
internal announcements, newsletters or information on electronic "bulletin
boards" intended solely for the dissemination of information to Ericsson's
employees.
11.9 Notices
Any notice or demand which under the terms of this Agreement or under any
statute must be given or made by Ericsson or ITC shall be in writing and
shall be given or made by telefax or similar communication or by certified
or registered mail or by a reputable express delivery service addressed to
the respective parties as follows:
To ITC: International Telecommunications Corporation
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
Attn: _________________________
--------------------------------------------------------------------------------
Page 33 of (36)
To Ericsson: Ericsson Inc.,
Network Systems
0000 X. Xxxxxxx Xx.
Post Office Box 833875
Richardson, Texas 75083-3875
Attn: ________________________
with copy to Legal Department
Such notice or demand shall be deemed to have been given or made upon
receipt when sent by telefax or other communication or five (5) days
following deposit postage prepaid in the U.S. mail. The above addresses
may be changed at any time by giving thirty (30) days prior written notice
as provided above.
11.10 Releases Void
Neither Party shall require waivers or releases of any personal rights
from representatives or customers of the other in connection with visits
to its premises and both Parties agree that no such releases or waivers
shall be pleaded by them or third persons in any action or proceeding.
11.11 Severability
In the event that any one or more of the provisions contained herein
shall, for any reason, be held to be unenforceable in any respect, such
unenforceability shall not affect any other provision of this Agreement,
but this Agreement shall then be construed as if such unenforceable
provision or provisions never had been contained herein. However, in the
event any such provision is considered an essential element of this
Agreement, the Parties shall promptly attempt to negotiate a substitute
therefor.
11.12 Survival
All rights and obligations of either Party accrued under this Agreement
prior to the cancellation, termination, or expiration hereof or of any
Order placed hereunder, as well as all rights and obligations of the
Parties under section 6.1 (relating to Software) and section 9.1 (relating
to Proprietary Information) of this Agreement, shall survive such
cancellation, termination, or expiration.
--------------------------------------------------------------------------------
Page 34 of (36)
11.13 Section Headings
The headings of the sections herein are inserted for convenience only and
are not intended to affect the meaning or interpretation of this
Agreement.
11.14 Non-Waiver
Either Party's failure at any time to enforce any of the provisions of
this Agreement or any right or remedy available hereunder or at law or
equity, or to exercise any option herein provided, will in no way be
construed to be a waiver of such provisions, rights, remedies or options
or in any way to affect the validity of this Agreement. The exercise by
either Party of any rights, remedies or options provided hereunder or at
law or equity shall not preclude or prejudice the exercising thereafter of
the same or any other rights, remedies or options.
11.15 Compliance with Laws
Each party shall comply with all applicable federal, state, county and
local laws, ordinances, regulations and codes (including procurement of
required permits or certificates) in their performance hereunder.
11.16 Entire Agreement
This Agreement shall incorporate the typed or hand written provisions on
ITC's Orders and Change Orders. Printed provisions on the reverse side of ITC's
Orders and Change Orders shall be deemed deleted. This Agreement, and Orders and
Change Orders (as provided above) shall constitute the entire Agreement between
ITC and Ericsson and shall not be modified or rescinded except by a writing
signed by ITC and Ericsson. The provisions of this Agreement shall supersede all
prior oral and written
--------------------------------------------------------------------------------
Page 35 of (36)
quotations, communications, agreements and understandings between ITC and
Ericsson that have not been incorporated herein.
ERICSSON INC., INTERNATIONAL
Network Systems TELECOMMUNICATIONS
CORPORATION
By /s/ Xxxxx X Xxxxxxxxxx By /s/ Xxxxxxx X. Xxxxxx
---------------------------- ---------------------------
Xxxxx X Xxxxxxxxxx Xxxxxxx X. Xxxxxx
------------------------------ -----------------------------
Name Name
Director - Global Accounts President
------------------------------ -----------------------------
Title Title
May 24, 1996 June 11, 1996
----------------- --------------------
Date Date
--------------------------------------------------------------------------------
Page 36 of (36)
Attachment A
STATEMENT OF WORK NO.__
This Statement of Work No.__, which includes the annexes listed below, is hereby
made a part of the General Purchase Agreement between International
Telecommunications Corporation ("ITC") and Ericsson Inc. ("Ericsson"), dated
_________,______ 1996 (the "General Purchase Agreement").
This Statement of Work No. __ includes of the following annexes:
1. Scope of Work for _____________________________
2. Schedule
3. Prices, Fees, and Charges not Included in Attachment B
4. List of Materials
5. Statement of Compliance with ITC's Requirements and Specifications
6. Special Terms and Conditions
In the event of a conflict between the terms of this Statement of Work No. __
and the General Purchase Agreement, this Statement of Work No. __ will prevail
with respect to the matters covered by it
ERICSSON INC., INTERNATIONAL
Network Systems TELECOMMUNICATIONS
CORPORATION
By _______________________________ By _______________________________
__________________________________ __________________________________
Name Name
__________________________________ __________________________________
Title Title
__________________________________ __________________________________
Date Date
--------------------------------------------------------------------------------
Attachment A - Page 1 of (1)
Attachment B
CUSTOMER SERVICES
--------------------------------------------------------------------------------
Attachment A - Page 1 of (1)
General Purchase Agreement Attachment B
International Telecommunications Corp. (ITC) Page 1 (16)
02/28/96 EUS/XM/B-95:496 Rev. B
--------------------------------------------------------------------------------
ATTACHMENT B
CUSTOMER SERVICES
1. GENERAL
This Attachment outlines the Customer Services offered to ITC.
1.1 PRICING
The prices within this Attachment are valid from January 1, 1995 until December
31, 1996. On January 1, 1997 there will be a 2% increase of all prices in this
Attachment, followed by a yearly increase of 2% during the length of this
Agreement. Coverage under this plan will be available until December 31, 2000.
Prices may, however, be renegotiated for coverage beyond December 31, 1997.
The prices detailed in this Attachment are valid for US sites only. Ericsson can
provide quotations for Customer Services to be performed in other countries upon
request from ITC.
2. SUPPORT
2.1 PRICE
Unlimited non-warranty support, covering emergency and technical support, is
provided 24 hours per day 7 days a week, at the following rates per year per
switch in ITC's network, depending upon the Application System release being
supported:
=============================================
Total Current or 2
Number of Previous Older Releases
Switches Releases
---------------------------------------------
1 $ 98,394 $196,788
---------------------------------------------
2-5 $ 78,715 $157,430
---------------------------------------------
6-10 $ 73,796 $147,592
---------------------------------------------
11-30 $ 68,876 $137,752
=============================================
Table 1
During any period in which an on-site coordinator is assigned, ITC will receive
a 7.5% discount per on-site coordinator per month per switch for any switch
which is the primary location for an on-site coordinator.
Prices include reasonable travel and living expenses, unlimited emergency
on-site support when deemed necessary at Ericsson's sole discretion, and three
(3) non-emergency site visits per year per switch. Additional on-site visits
will be charged at $ 175 per hour, plus reasonable travel and living expenses.
General Purchase Agreement Attachment B
International Telecommunications Corp. (ITC) Page 2 (16)
02/28/96 EUS/XM/B-95:496 Rev. B
--------------------------------------------------------------------------------
2.2 COVERAGE
Support is available for all Ericsson Hardware, Software and Docware.
Support for TMCS systems and other Operations, Administration, Maintenance &
Provisioning ("OAM&P") systems is not included in this contract. If ITC wishes
to purchase OAM&P support, Ericsson can provide a quote for that service.
2.3 SCOPE
Support is provided as active support with Ericsson personnel in Ericsson's
Technical Assistance Center (TAC) offices during normal working hours, 8 a.m. to
5 p.m. (central zone) Monday through Friday (except holidays). Outside normal
working hours the support is available as on-call ("beeper") support.
Support for natural disasters, acts of God, etc. is not provided as part of
technical and emergency support but is covered under the Disaster Recovery
Service outlined in the section entitled "Disaster Recovery Service" of this
Attachment. If Disaster Recovery Service is not purchased, Ericsson will not
take on any specific responsibilities, such as stocking additional hardware or
having disaster recovery equipment and personnel ready, beyond normal technical
and emergency support.
2.4 GLOBAL SUPPORT
As an alternative to local support centers, Ericsson can offer ITC global
support centers based on the Ericsson HUB concept. Ericsson would make use of
regional HUBs in the USA, Europe and Australia/Asia, or other geographic
location based on ITC's global network strategies. Charges for global support
service will be negotiated with ITC upon request.
General Purchase Agreement Attachment B
International Telecommunications Corp. (ITC) Page 3 (16)
02/28/96 EUS/XM/B-95:496 Rev. B
--------------------------------------------------------------------------------
2.5 CSR PROCESS
When ITC notifies Ericsson of any fault or deficiency in the System,
Documentation, Services or related processes, Ericsson shall record a Customer
Service Report (CSR). A priority will be assigned to this CSR. The priorities
and their usage are described in detail in document EUS/XS/S-95:074. Ericsson
will track the CSR to conclusion and present an answer to ITC. ITC is
responsible for closing the CSR if a satisfactory resolution is achieved.
Ericsson will continue working to resolve any CSR unit until such time that ITC
closes it by notice to Ericsson.
The CSR process is Ericsson's way of tracking and resolving problems in a timely
manner with high quality. All problems must be reported in this manner to be
acted upon by Ericsson. Ericsson shall conclude investigations into all CSRs
opened by ITC as outlined in this document. Ericsson shall not be required to
investigate or respond according to the response and resolution times set out in
the sections entitled "Response Time" and "Resolution Time" in this Attachment
for problems reported to Ericsson in any other way than by opening a CSR.
Response and resolution times for CSRs shall be as follows.
2.5.1 RESPONSE TIME
This is the time elapsed from ITC's call to the TAC until an engineer contacts
ITC to inform ITC that the engineer has started working on the problem.
-----------------------------------------------------------------------
CSR PRIORITY IF REPORTED DURING IF REPORTED DURING
8AM-5PM CST MONDAY- FRIDAY OTHER HOURS
(EXCEPT HOLIDAYS)
-----------------------------------------------------------------------
A 30 minutes 30 minutes
-----------------------------------------------------------------------
B 1 hour By 9am CST next working
day
-----------------------------------------------------------------------
C 1 hour By 9am CST next working
day
-----------------------------------------------------------------------
Table 2
2.5.2 RESOLUTION TIME
This is the time elapsed from ITC's call to the TAC until ITC has a solution
available for the problem.
A solution may be in the form of a temporary or permanent workaround, usage
instructions, a temporary or permanent fix/patch, recompiled code or a charge or
replacement of hardware.
----------------------------------
CSR priority Resolution time
----------------------------------
A 36 hours
----------------------------------
B 45 days
----------------------------------
C 180 days
----------------------------------
Table 3
General Purchase Agreement Attachment B
International Telecommunications Corp. (ITC) Page 4 (16)
02/28/96 EUS/XM/B-95:496 Rev. B
--------------------------------------------------------------------------------
3. MAINTENANCE SUPPORT
3.1 PRICE
The yearly Maintenance Support fee for the current Application System or the two
prior releases is 9.8% of the price of such Application System. For older
Application Systems the yearly charge is 19.6% of the price of such Application
System. For purposes of calculating the Maintenance Support fee, the price of an
Application System is the original one-time fee for the Application System, plus
the current applicable yearly RTU fees. Costs of travel are not included.
Software releases for TMOS systems and other OAM&P systems are not included in
this contract. If ITC wishes to purchase OAM&P maintenance releases, Ericsson
can provide a quote for that service.
3.2 COVERAGE
Maintenance Support Services cover fault corrections and fault preventive
updates to all Ericsson AXE Software and Docware. New features and functions not
included.
Modifications of the Software made by Ericsson which constitute Software
Enhancements or Software Features will be made available to ITC for license at
Ericsson's then-current price.
3.3 SCOPE
Ericsson will provide solutions to any faults found. The standard delivery
medium for software updates is floppy diskette, magnetic tape or optical disk.
If the Maintenance Support System ("MSS"), has been purchased delivery will be
electronic. In some cases it is not possible to implement corrections
electronically. In these cases corrections will be delivered on floppy diskette,
magnetic tape or optical disks.
Updates and corrections may be in the form of temporary fixes, permanent fixes
or recompiled code. For Docware corrections, the new Docware will be sent to ITC
Unless the Update Service has been purchased it is the responsibility of ITC to
implement corrections into the system.
Documentation updates are provided in accordance with changes in the system
(such as maintenance releases and growth and upgrade support). All updates are
provided in a timely manner and on the same media as the original documentation
library delivery, unless otherwise agreed upon.
4. MAINTENANCE SUPPORT SYSTEM
4.1 PRICE
This service is not being purchased by ITC at this time.
The yearly license fee includes support and updates. The prices do not include
PCs, workstations, servers or interconnections (LAN).
General Purchase Agreement Attachment B
International Telecommunications Corp. (ITC) Page 5 (16)
02/28/96 EUS/XM/B-95:496 Rev. B
--------------------------------------------------------------------------------
4.2 COVERAGE
A license will cover one terminal in one location for one year.
4.3 SCOPE
MSS is a software package designed to track fault reports and to handle
electronic software delivery. Initial setup is mandatory and is required only
once regardless of the number of licenses. Set-up assistance on-site is
optional. A license renewal fee will apply in addition to a yearly license fee,
but only if a license is allowed to expire for more than ninety (90) days
before it is reinstated.
5. TRAINING
5.1 PRICE
ITC will receive 90 student days of training credit for the initial purchase
hereunder at no additional charge. A student day is one (1) student in one (1)
class for one (1) day. Charges for training in addition to ITC's Training
Credits will be at the prices set forth below:
-------------------------------------------------------------------
TYPE OF COURSE PRICE
-------------------------------------------------------------------
Instructor Based Training $350 per trainee day
(not hands-on)
-------------------------------------------------------------------
Hands-on Training $420 per trainee day
-------------------------------------------------------------------
Computer Based Training Priced per package
-------------------------------------------------------------------
Customized Training Same as Instructor Based Training,
plus extra charge for customization
determined in each case
-------------------------------------------------------------------
Suitcased Training Same as Instructor Based Training,
plus costs of travel
-------------------------------------------------------------------
Table 4
Each training class includes related instructional Documentation.
Training Credits shall be used by ITC no later than one (1) year from the
issuance of said Training Credits. The Training Credits are limited to use in
standard training classes (those listed in Ericsson's current training catalog).
Ericsson shall provide, at ITC's option, instructors and instructional
Documentation suitable to train ITC's personnel at locations agreed upon by ITC
and Ericsson. If ITC elects to have training performed at a location of ITC's
choice and such training a suitable for suitcase delivery (i.e. on-site
delivery), ITC shall bear the cost of all expenses thereof, including but not
limited to, travel and living expenses for Ericsson's training personnel and any
costs associated with shipping training material.
When training is conducted at Ericsson's Richardson, Texas Training Facility,
ITC shall be responsible for its own expenses, (i.e., travel, lodging, salaries,
etc.).
General Purchase Agreement Attachment B
International Telecommunications Corp. (ITC) Page 6 (16)
02/28/96 EUS/XM/B-95:496 Rev. B
--------------------------------------------------------------------------------
Where training is conducted on-site utilizing ITC's switching Systems, Ericsson
shall not be responsible for damage to such Systems caused during training, or
for delays in placing Systems into service caused by training.
ITC shall not be charged for standard training courses canceled with two (2) or
more weeks' prior notice, or for custom/exclusive training classes canceled with
thirty (30) or more days prior notice. ITC shall be charged for standard
training courses canceled with less than two (2) weeks' prior notice. Training
Credit may be used to offset such charges in whole or in part. ITC shall
otherwise be responsible for training classes canceled by ITC, although in the
case of canceled custom/exclusive courses, charges shall be limited to the costs
expended by Ericsson in the preparation of such course.
Training classes for OEM equipment and OAM&P systems will be quoted when
requested, unless they are listed in the Ericsson training catalog.
5.2 COVERAGE
This service covers all training classes currently offered by the Ericsson
training department. Ericsson-provided training shall be made available to ITC
at reasonable intervals at locations mutually agreed upon between ITC and
Ericsson.
5.3 SCOPE
Training is described in the Ericsson's current training catalog.
6. DISASTER RECOVERY SERVICE
This service is not being purchased by ITC at this time.
The Disaster Recovery Service (Material and/or Services) provides assistance to
ITC in restoring service which has been disrupted due to catastrophic conditions
caused by natural disasters (fire, flood, etc.).
Such Disaster Recovery Service includes Ericsson providing extraordinary support
to a level of effort required to provide support in a time frame deemed
necessary by ITC consistent with the resource and manpower limitations of
Ericsson. This service will provide recovery services such as a mobile switch
and a disaster recovery team. Ericsson will however not subject its personnel to
danger of any kind in connections with Disaster Recovery and will not enter
buildings or locations that may cause a danger to Ericsson personnel. This
clause shall not be constructed to require Ericsson to maintain any position or
status of readiness to perform in the future.
General Purchase Agreement Attachment B
International Telecommunications Corp. (ITC) Page 7 (16)
02/28/96 EUS/XM/B-95:496 Rev. B
--------------------------------------------------------------------------------
7. HARDWARE SERVICES
7.1 PRICE
Hardware Service is provided at the following rates per year per switch in ITC's
network, depending upon the Application System release being supported:
-----------------------------------------------------------
APPLICATION SYSTEM BASIC EXPEDITE
RELEASE SERVICE SERVICE
-----------------------------------------------------------
Current or two previous $3.15 per port $4.95 per port
-----------------------------------------------------------
Order $6.30 per port $9.90 per port
-----------------------------------------------------------
Table 5
Handling fees are included but shipping or costs of travel are not included.
7.2 COVERAGE
The Hardware Services covers normal working hours, 8 a.m. to 5 p.m. (central
zone) Monday through Friday (except holidays) for the AXE International Gateway
switching platforms. Ericsson can provide Hardware Services for other switching
platforms upon request. Hardware Service covers unlimited hardware replacements
and hardware service phone support.
Hardware services for TMOS systems and other OAM&P systems are not included in
this contract. If ITC wishes to purchase OAM&P hardware services, Ericsson can
provide a quote for that service.
7.3 SCOPE
Replacement and shipment of Hardware, if required, shall be completed as soon as
possible but in no event later than thirty (30) days after receipt by Ericsson,
unless ITC agrees otherwise. ITC must adhere to the procedures outlined in
document EXU/S/lS-93:258 ("CUSTOMER REPAIR AND RETURN POLICY").
7.4 OTHER TERMS AND CONDITIONS
7.4.1 TURN-AROUND TIMES
The normal turn-around times for hardware replacements are:
-----------------------------------------------------------
APPLICATION SYSTEM BASIC EXPEDITE
RELEASE SERVICE SERVICE
-----------------------------------------------------------
Current or two previous 30 days 24 hours or
counter to counter
(ASAP)
-----------------------------------------------------------
Older 90 days 72 hours
-----------------------------------------------------------
Table 6
General Purchase Agreement Attachment B
International Telecommunications Corp. (ITC) Page 8 (16)
02/28/96 EUS/XM/B-95:496 Rev. B
--------------------------------------------------------------------------------
7.4.2 EXPEDITE SERVICE AND FEES
A per-item expedite fee is charged for emergency turn-around shipments when
using the Basic Service option.
----------------------------------------------------------------------------------------------
APPLICATION SYSTEM NORMAL FEE PER EMERGENCY FEE PER ITEM
RELEASE TURNAROUND TIME ITEM TURNAROUND TIME
----------------------------------------------------------------------------------------------
Current or two previous 30 days $0 24 hours or $240
counter to counter
(ASAP)
----------------------------------------------------------------------------------------------
Older 90 days $0 72 hours 50% of board list
price, minimum
$500.
----------------------------------------------------------------------------------------------
Table 7
For the Expedite Service, ITC will be charged the board list price upon shipment
and credited the same price when the faulty board is received by Ericsson. The
Expedite Service also extends the phone coverage to 24 hours per day 7 days a
week.
7.4.3 SHIPPING AND HANDLING CHARGE
ITC pays for shipping, which will be billed at cost. Handling fees are included
in the Hardware Service price.
7.4.4 HARDWARE CHARGE
There is no additional charge for all Hardware covered by Hardware Services.
7.4.5 TRANSPORTATION
Terms and Conditions for Transportation are detailed in the section entitled
"Replacement Out of Warranty" in the Agreement.
8. SPECIALIZED EXPERTISE
8.1 PRICE
The following prices apply to the provision of specialized expertise:
------------------------------
SPECIALIZED MONTHLY
EXPERTISE FEE
------------------------------
NIT Manager $23,703
------------------------------
Site technician $ 7,450
------------------------------
Coordinator $21,042
------------------------------
Category 1 $12,336
------------------------------
Category 2 $13,961
------------------------------
Category 3 $17,772
------------------------------
Category 4 $21,703
------------------------------
Table B
The prices are per calendar month. Costs of travel to and from the site of
service and of any living expenses at the site are not included in the prices
indicated above. Travel cost and any related costs away from the site of service
during the assignment
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period are not included and will be at ITC's expense. Any home trips are
covered. Discounted pricing can be negotiated for longer assignments and large
projects.
8.2 OTHER TERMS AND CONDITIONS
The minimum period for which specialized expertise can be ordered is one (1)
week (five [5] working days), except that the minimum period for Site Technician
("Site Tech") is twelve (12) months. The price for one week of service is
one-fourth (1/4) the one-month price.
If ITC terminates specialized expertise earlier than agreed upon at the time of
ordering the service, any discounts for longer assignment will not apply, and
ITC will be charged the full price for the actual time used.
If ITC requests to extend the provision of specialized expertise and Ericsson
can accommodate the request, charges for the extended time will be based on the
entire duration ordered (including the extension).
When an assignment is performed on site or in an office, ITC will provide
suitable office space, furniture and phone access. Ericsson's personnel (other
than site teams) will be equipped with portable PCs and normal tools to perform
their jobs. ITC will provide necessary tools to site techs.
8.3 COVERAGE
Specialized expertise covers the personnel categories listed in the section
entitled "Personnel Types" in this Attachment. (The categories only
approximately describe the individual who will render the services. It may occur
that a high performing person advances to a category before acquiring the years
of experience indicated. The tasks suggested in the categories are merely
examples.)
8.4 SCOPE
This service covers all types of specialized expertise, including
installation/cutover assistance.
8.4.1 PERSONNEL TYPES
8.4.1.1 PERSONNEL CATEGORY 1
Personnel with 1-2 years of telecom experience, and at least six (6) months of
AXE experience. Typical tasks for this personnel may be construction,
installation, cabling, operation and maintenance tasks, training and other
tasks.
8.4.1.2 PERSONNEL CATEGORY 2
Personnel with 2-4 years of telecom experience, and at least one (1) year of AXE
experience. Typical tasks for this personnel may be installation, testing,
cutover, audits, operation and maintenance tasks, training and other tasks.
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8.4.1.3 PERSONNEL CATEGORY 3
Personnel with 4-5 years of telecommunications experience, with at least three
(3) years of AXE experience and typically with a certain area of expertise,
(e.g., TMOS, SS7, DT, network operation, maintenance, etc.). Typical tasks for
this personnel may be supervision, installation, testing, cutover, audits,
operation and maintenance tasks, troubleshooting, network planning, training and
other tasks.
8.4.1.4 PERSONNEL CATEGORY 4
Personnel with 5-8 years of telecom experience, with at least three (3) years of
AXE experience and typically with several areas of expertise, e.g. TMOS, SS7,
DT, network operation, maintenance, etc. Typical tasks for this personnel may be
supervision, installation, testing, cutover, audits, operation and maintenance
tasks, troubleshooting, network planning, training and other tasks.
8.4.1.5 ON-SITE COORDINATOR
Personnel with special expertise in cutting over, bringing up and operating a
switch. It can also be called a 'Conversion Manager'. Personnel in this category
will have approximately five (5) years of experience in these areas. Typical
tasks for on-site coordinators are any and all tasks associated with starting up
operations of a new switch or bringing a switch from one generic level to the
next level, where major changes are needed.
8.4.1.6 SITE TECHNICIAN
The Site Tech is capable of handling the day-to-day routine operation of a
switch and have at least one year of experience with switch operations and
maintenance and the specific knowledge needed to handle Ericsson's equipment.
Typical tasks are site monitoring, hardware expansion, software upgrades, alarm
retirement, power maintenance, troubleshooting assistance, etc.
8.4.1.7 NIT MANAGER
The Network Integration Team Manager ("NIT Manager") is responsible for all the
network operation activities. This person will work in the management structure
of ITC and will be highly competent and knowledgeable about network operation.
The NIT Manager will also suggest ways to help reduce overall operating costs
and improve communications in the network. The NIT Manager can also act as a
Network Operations Manager.
8.4.2 CANDIDATE SELECTION
Ericsson will present to ITC the background and work history of each person that
Ericsson proposes to work with the on-site services or specialized expertise
services. Ericsson will also provide an opportunity for ITC to interview the
person prior to the commencement of the assignment, if desired by ITC. Ericsson
will attempt to accomodate reasonable requests for the assignment of a
particular or different person to perform an assignment.
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8.4.3 NOTIFICATION TIMES
While Ericsson understands that ITC requires maximum flexibility and will
attempt to accomodate any request ITC makes for service regardless of
notification time, the following time limits will apply for this Agreement.
For the on-site service and specialized service lasting three (3) months or
less, Ericsson will require an order for service at least forty-five (45) days
before the service is to start. If the service duration is more than three (3)
months, Ericsson will require an order for service at least sixty (60) days
before the service is to start. Failure to adhere to these time frames may
result in the lack of a suitable candidate for the job.
When ordering specialized service from Ericsson, ITC must define the expected
duration of the assignment. If ITC wishes to extend the assignment, Ericsson
requires notification as early as possible. For indefinite assignments (those
without a specific end date) and assignments originally scheduled to last six
(6) months or less, ITC is required to give Ericsson forty-five (45) days' prior
notice of termination. For assignments originally scheduled to last more than
six (6) months but not more than one (1) year, ITC is required to give Ericsson
ninety (90) days' prior notice of termination. For assignments originally
scheduled to last more than one (1) year, ITC is required to give Ericsson one
hundred twenty (120) days' prior notice of termination. However, if ITC
terminates service because of a reasonable conclusion that the candidate
assigned to perform the job was not suitable, prior notice is not required, and
Ericsson will attempt to find an immediate replacement for that person.
If ITC wishes to terminate an assignment prior to the originally requested end
date, Ericsson requires notification forty-five (45) days in advance for
assignments originally defined to last less than six (6) months, unless ITC
terminates service because of a reasonable conclusion that the candidate
assigned to perform the job was not suitable. In such a case, Ericsson will use
its best effort to immediately find a replacement for that person.
If ITC wishes to terminate an assignment prior to the originally requested end
date, and the assignment was scheduled to last more than six (6) months,
Ericsson requires notification at least ninety (90) days in advance. For
assignments scheduled to last more than one (1) year, Ericsson requires
notification at least 120 days in advance if ITC wishes to terminate the
assignment before the originally requested end date.
Should Ericsson wish to change a person during an assignment, ITC will be
provided the same notification times set forth in the previous paragraph unless
the change results from a termination, resignation or relocation of an Ericsson
employee. In such case the notification period is two (2) weeks.
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8.4.4 WORKING HOURS
Reasonable overtime, not to exceed 10% on average over the entire length of each
service, is permitted for work beyond normal working hours. To protect the
individual, exceptions must be discussed with and approved in writing by
Ericsson in advance.
8.4.5 MOVING EXPENSES
Should ITC wish to move personnel with specialized expertise from one location
to another during the assignment, ITC will pay any actual costs associated with
such a move in accordance with the then-current version of the applicable
Ericsson Human Resources Policies and Procedures. A relocation is defined as a
move of work location that increases the employee's one way commute fifty (50)
miles or more.
9. UPDATE SERVICE
9.1 PRICE
Charges for Update Service are, per year per site, $16,043 for the current
Application System or the two previous releases, and $32,086 for older releases.
The prices cover any reasonable travel and living expenses incurred if site
visits are required to implement a maintenance release.
Equipment needed on ITC's AXE sites to facilitate remote electronic delivery is
not included in the price. The remote patch delivery requires a high speed data
connection using X.25/MTP protocol.
9.2 COVERAGE
All AXE Software purchased under this Agreement.
Update Service for TMOS systems and other OAM&P systems are not included in this
contract. If ITC wishes to purchase OAM&P Update Service, Ericsson can provide a
quote for that service.
9.3 SCOPE
Ericsson will remotely implement AXE software maintenance releases to the AXE
offices in ITC's network. The Update Service covers implementation of:
--> ECA (quick patching)
--> ACA (normal patching)
--> CNA (recompiled code)
In order for Ericsson to timely implement patches in each of the AXE offices,
update plans outlining measures to be taken must be agreed to with ITC no more
than two weeks after release of corrections to ITC.
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10. NETWORK INTEGRATION TEAM
10.1 PRICE
This service is not being purchased by ITC at this time.
10.2 COVERAGE
The NIT can address network integration issues at any ITC network site. ITC can
select the focus of the team from the areas suggested by Ericsson or identify
different areas.
The NIT service assumes that an operations support system, a business support
system and applicable OAM&P systems are in place upon the arrival of the NIT
unless mutually agreed upon between ITC and Ericsson, as progress may be delayed
by selection and implementation of such systems during the NIT service period.
10.3 SCOPE
The Network Integration Team will address switching operations functions related
the Network Management Center, the Operations Center, the Customer Care Center
and the Billing Center.
ITC and Ericsson will work to identify the operations tasks critical for ITC's
business and any additional tasks ITC wishes to have performed and/or integrated
with existing or new OAM&P solutions. The final decision as to tasks and
priorities rests with ITC. Processes will be put in place for chosen tasks.
ITC and Ericsson will work to clearly define milestones and create an NIT
project time-line for reaching them. Biweekly, Ericsson will formally review
with ITC the progress toward those milestones and take action on any deviation
from the plan. To allow for the necessary mutual transfer of knowledge and
expertise, the appropriate ITC personnel shall participate with the NIT on a
full-time basis.
ITC shall assign a contact for Ericsson's designated NIT Manager. The NIT
Manager will issue biweekly progress reports to the specified ITC contact. (The
reporting schedule can be changed by agreement between ITC and Ericsson.)
Priorities will be reviewed on a monthly basis with ITC management. If the
priorities are adjusted Ericsson will document the changes and present an
updated priority list.
In order to expedite actions and avoid consuming ITC time in obtaining approval,
ITC shall give members of the NIT the same authority as their counterparts in
ITC to perform "basic network integration tasks", which will be defined jointly
with ITC. Decisions viewed as affecting the ITC operations will be made by ITC.
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11. OAM&P SUPPORT SYSTEMS
This service is not being purchased by ITC at this time.
The details of an integrated solution for Operations, Administration,
Maintenance & Provisioning ("OAM&P") are being discussed with ITC.
12. ENGINEERING & INSTALLATION SERVICES
12.1 PRICE
Charges are $ 125 per hour. Discounts negotiated for larger projects or for
services rendered during installation of Ericsson switching equipment.
12.2 COVERAGE
Engineering services are available to ITC on a per-request basis. Examples of
these services include pre-installation planning, installation services,
installation engineering, and data translations support.
12.3 SCOPE
Negotiated per project between ITC and Ericsson.
13. DOCUMENTATION
13.1 PRICE
Ericsson agrees to furnish one (1) complete library set of Documentation, as
detailed in the SOW, for the initial purchase of each type of Application System
hereunder at no additional charge. Subsequent sets of Documentation will be at
the following charges:
Standard Documentation on CD ROM: $100 per CD ROM
Standard Documentation on paper: $50 per Binder
Non-standard Documentation on paper: $50 per Binder
Browser Software: $208 per Single-User License, UNIX SunOS
Browser Software: $142 per Single-User License, MS-DOS
Browser Software: $742 per Multi-User License, UNIX SunOS
Browser Software: $493 per Multi-User License, MS-DOS
Documentation may be in the form of CD ROM or paper, at Ericsson's option.
Equipment needed on ITC's AXE sites to facilitate use of Browser Software is
not included in the price. Support contract pricing is an additional $5000 per
year per platform for unlimited phone call support and software updates.
Additional development fees apply for custom documentation and will be
determined on a per project basis.
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13.2 COVERAGE
Complete new library set(s) of Documentation, enhancements, upgrades or
revisions to Documentation.
ITC shall provide a written distribution schedule for Documentation as soon as
possible after ordering. ITC shall establish and maintain a list of ITC's
personnel and organizations responsible for maintaining each complete set or
partial set of Documentation under this Agreement. All Documentation and any
subsequent updates or changes shall contain an Ericsson identification reference
number and date of issue to facilitate administration.
13.3 SCOPE
A complete set of Ericsson's Documentation is available for engineering,
planning, installation, acceptance testing, operations and maintenance of
Material and Software.
Documentation updates are covered under the section entitled "Maintenance
Support" of this Attachment, except that, pursuant to the Agreement, Ericsson
shall update Documentation during the Warranty Period at no charge.
14. MISCELLANEOUS
14.1 TRAVEL AND LIVING EXPENSES; TAXES
Expenses to be reimbursed by ITC shall be those that are (i) consistent with
Ericsson's then-current Employee Business Travel Policy, (ii) reasonable and
customary for travel and related living costs, and (iii) actually incurred in
the performance of Services hereunder. Except where the Service by its nature
includes travel, Ericsson shall obtain ITC's prior approval for travel.
Any applicable taxes and/or duties are not included in the prices stated above
and shall be borne by ITC.
14.2 WORKING HOURS; BILLING HOURS
Except as may be specifically described above or in the Agreement with regard to
a particular Service, all Ericsson personnel assigned or otherwise rendering
Services to ITC will work normal working hours. Normal working hours are 8 a.m.
to 5 p.m. (according to the time zone and locale in which the work is being
done), Monday through Friday (except holidays).
When on-site support is called for, hours are counted during the entire time
Ericsson works on ITC's requests, including wait time. Travel time is counted,
but non-working hours at the destination are not counted.
When support is called for, hours are counted during the entire time works on
ITC's requests.
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A minimum charge of one-half (1/2) hour applies during normal working hours and
one (1) hour at all other times. Time for hourly billing will be calculated in
one-half (1/2) hour increments.
14.3 CONTACTING SUPPORT
In all cases, contact with the Ericsson support personnel (including for
warranty support) is made by calling the TAC 800-number [(000) 000 0000], 24
hours per day, 365 days per year.
14.4 QUARTERLY REPORTS
Ericsson will keep a log of all Customer Service activities and present this
information to ITC at the end of each calendar quarter. The log will also be
available to ITC at any other time upon request.
14.5 WARRANTY COVERAGE
The Customer Services covered under Warranty and provided to ITC at no
additional charge are detailed under the section entitled "WARRANTY" in the
Agreement.
