HI COUNTRY WIRE & TELEPHONE, LTD
PURCHASE AGREEMENT
This Agreement is made between Hi Country Wire & Telephone, Ltd., a
Colorado Corporation ("Hi Country") and Jato Communications ("Customer"), whose
address is 0000 00xx Xxxxxx, #000, Xxxxxx, XX 00000 ("the Premises") who agree
as follows:
1. EQUIPMENT AND PREMISES: Hi Country shall sell telecommunications
equipment ("Equipment") and sub-license the associated software (together
referred to as "System") listed on SCHEDULE 1 which is attached hereto and
Customer shall purchase said Equipment.
2. PRICE, PAYMENT TERMS AND SCHEDULING:
(a) The price to be paid by Customer to Hi Country for the Equipment,
the System and its installation by Hi Country (which price includes
the software license fee) shall be $18,451.98. State and local tax
and other taxes shall be in addition to said price.
(b) Customers shall pay said $1,617.95 per month plus sales tax as
follows: 12 months of said payment to commence on April 1, 1999
through March 30, 2000. Title to the equipment, system, licenses and
other goods purchased hereunder, shall not pass to Customer until all
sums due hereunder have been paid in full.
(c) Customer shall sign the attached UCC-1 Security Agreement and
Financing Statement at the time it signs this agreement.
3. CHANGES: Customer shall have the right to request any addition
to or deletion of any equipment or software to be provided by Customer by this
Agreement at any time provided such request is in writing. If Customer and Hi
Country do not reach an Agreement in writing as to the price to be paid by
Customer for the requested addition or deletion, then there shall be no such
change to the contract. The terms of this Agreement, including the limited
warranty, shall apply to any Equipment or software added by this provision.
Such warranty shall terminate when the limited warranty for the original System
expires. If Customer requests that an inventory be performed, at Customer's
discretion within ten working days after cutover date, the parties shall jointly
meet and inspect the System for the purpose of determining whether Hi Country
has provided the Equipment and software set forth in SCHEDULE 1.
4. NOTICES: The individual authorized to receive notices pursuant
to the Agreement and to authorize changes to this Agreement shall be:
Customer: Jato Communications
0000 00xx Xxxxxx, 000
Xxxxxx, XX 00000
Herein Country : Xxx Xxxxxxxxx Sr., President; Hi Country Wire & Telephone,
Ltd.,
0000 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
5. ATTACHMENTS: The following attachments are incorporated herein
by reference:
(a) SCHEDULE 1 - List of Equipment Purchased and Purchase Price;
(b) SCHEDULE 2 - Maintenance Agreement Under Warranty
(c) SCHEDULE 3 - UCC-1 Security Agreement and Financing Statement
(customer shall deliver two copies to Hi Country)
PAGE 1
6. LIMITATION OF LIABILITY: Neither party shall be liable to the
other for:
(a) Any acts of any subcontractor or supplier;
(b) Any incidental or consequential damages, damages for loss of
business or loss of profit;
(c) Any damage or injury for which there is workers' compensation
coverage or other insurance coverage for the items claimed by the
injured party.
(d) Any damage resulting from access or repair by persons other than
Hi Country.
7. INSURANCE AND REGULATIONS: Each party certifies that it is
compliant with the law for Worker's Compensation insurance. Upon written
request by Customer, Hi Country agrees to execute a certificate of compliance
with shall certify compliant with any applicable federal, state and/or local was
or regulations, including but not limited to FLSA, EEOC, OSHA, ERISA and any
Economic Control Statues or Regulations. Each party shall indemnify and hold
harmless the other, its officer and directors, employees and agents from any
loss, cost or damage that may arise as a result of any actual violation of any
federal, state or local laws referred to in this paragraph. Each party shall
indemnify and hold the other harmless and bear the cost of remedy if it's
Premises or equipment do not comply with all applicable federal, state and local
laws, ordinances and regulations.
8. INSTALLATION:
(a) Customer shall provide (1) access, easements, and consents
necessary to install or service the System; (2) necessary floor plans,
space for the System and accessible wiring location free of asbestos
and other hazardous chemicals and environmental hazards as provided by
federal law or regulation; (3) dedicated electronic source or
electronic circuits, power and isolated ground wiring; (4) suitable
operating environment as may be required by any manufacturers
specifications; (5) raceway, conduit, holes and wire-ways.
(b) Hi Country shall perform; (1) all software programming so that
the system complies with manufacturer's specifications for operation;
(2) develop and program user models; and (3) program the System to
operational parameters. Customer shall provide information to Hi
Country regarding the type of uses, their locations, user names, and
special applications required by this contract. Hi Country shall
translate this formation into the software codes entered into the
Systems software. The work by Hi Country described in this
subparagraph (b) is dependent upon the individual needs of employees
of Customer and if not satisfactory to Customer, the parties shall
reach an Agreement as to the manner of making the System operate
properly within manufactures specifications.
(c) Hi Country represents and warrants that its manufacturers System
specifications shall conform to all local, state and federal laws,
rules and regulations.
(d) Hi Country shall provide the necessary end-user training and
administrator training as outlined in SCHEDULE 1 attached hereto.
(e) Hi Country represents and warrants that it has the right to enter
into this Agreement and to make the transfer of information hereunder,
including all necessary rights and licenses for the System.
(f) During the installation process if an unforeseen occurrence which
is not provided for in this Agreement and which is not under Hi
Country's control renders it impossible for Hi Country to
PAGE 2
install the system or which renders the system inoperable, Hi Country
may terminate this agreement without liability to Customer.
(g) If, within one year of cutover, any event occurs that is not
preventable by Customer destroys the system and if Customer in writing
requests Hi Country to restore Customer's System to an operational
status and if Hi Country and Customer agree in writing upon the cost
to Customer, Hi Country shall provide Customer with a replacement
System within two days. Customer and Hi Country shall agree upon the
cost to Customer of the overtime, expedited shipment, equipment
software, and labor charges of Hi Country.
(h) All material and equipment sold by Hi Country to Customer are
specially manufactured goods for Customer.
(i) Hi Country shall be responsible for coordination with U S West
Communications and other network service providers if requested by
Customer.
9. LIMITED WARRANTY:
(a) For a period of one year from the cutover date ("warranty
period") Hi Country warrants that the System shall be free from
defects in materials and workmanship and shall perform in conformance
with specifications contained in the manufacturers warranty provided
with the Equipment. If the System fails to perform within said one
year, Hi Country shall, repair the System or components of the System,
(including parts and labor) at Hi Country's expense.
(b) Customer's sole and exclusive remedy for breach of warranty or Hi
Country's failure to perform shall be as set forth above in
subparagraph (a) immediately preceding. Hi Country's obligations to
remedy failures of the particular part or equipment described in the
notice to Hi Country that were discovered during the warranty period
shall continue until the System is operating according the terms of
this Agreement provided Customer notifies Hi Country in writing during
the warranty period. Repair and replacement parts shall be new for
the first 90 days of the warranty period and shall be new or like new
for the remainder fo the warranty period.
(c) Hi Country shall not be liable for any long distance charges,
toll charges or any other expense to Customer caused by unauthorized
usage, fraud, theft, or by any person not authorized by Hi Country.
(d) The limited warranty contained in this agreement from Hi Country
to Customer excludes repairs or replacements, whether made necessary
by Customer or by a third party that are attributable to misuse,
negligence, accident, theft, abuse fluctuations in electric current,
power surges, shorts, fire, water, flood, temperature variation beyond
that recommended in the manufacturer's documentation to Customer or
manufacturer's specifications, wind, storms, lightening or any act of
God, access to repair or work on the system by any person who is not
authorized by Hi Country. Hi Country shall perform repairs
necessitated by any excluded cause at Customer's request provided that
rates and charges for such repairs are approved in writing by
Customer.
(e) In addition to the above described warranty services, Hi Country
shall respond to Customer request to perform service during the
warranty period as outlined in SCHEDULE 2, MAINTENANCE AGREEMENT UNDER
WARRANTY. If there is a conflict between this Agreement and the
SCHEDULE 2 Agreement, then the provisions of this Purchase Agreement
shall prevail.
PAGE 3
10. Except for the limited warranty specifically stated in writing in
this agreement, Hi Country gives no other express or implied warranty and gives
no warranty for a particular purpose nor warranty of MERCHANTIBILITY and the
system is sold "AS IS" without any warranty or representation except as
contained herein in this agreement.
11. ACCEPTANCE:
(a) All materials and workmanship may be subject to inspection and
testing by Customer prior to acceptance.
(b) After the System cutover date Hi Country shall notify Customer
that the System is ready for inspection and testing. Customer
reserves the right to reject any System component that is not in good
working order or not in accordance with the manufacturer's
specifications. The "acceptance date" shall be 30 days after the
cutover date unless the Customer notifies Hi Country in writing that
the system is not in good working order or does not comply with
manufacturer's specifications or does not comply with this contract.
In such event the acceptance date shall be the date when Hi Country
takes such steps so the system meets manufacturer's specifications.
All notices or complaints about unsatisfactory matters shall be in
writing signed by the Customer.
(c) If Customer does not notify Hi Country in writing of any defects
in the System within thirty days of the cutover date, the System shall
be deemed be in compliance with all manufacturer's specifications and
in compliance with all warranties by Hi Country and in compliance with
this Agreement.
12. TERM AND TERMINATION:
(a) This Agreement commences on the date it is signed by both parties
and the signed agreement is communication (by fax, mailing or
delivery) to both parties and, unless terminated earlier pursuant to
the terms of this Agreement, shall continue in force until completion
of the services.
(b) If Customer fails to pay any sums when due and fails to cure the
nonpayment within ten days after written demand or fails to perform
any other obligation hereunder and fails to cure such other default
within thirty days after written notice by Hi Country, which notice
specifies the exact nature and extent of Customer's failure to
perform, Hi Country may, in its discretion cease installing the System
and receive payment for work performed and the equipment described
herein or may exercise any rights under any security agreement or any
rights at law or equity.
(c) If Hi Country fails to perform any obligation under this
Agreement and fails to cure such default within thirty days after
written notice from Customer specifying the exact nature and extent of
Hi Country's failure to perform, Customer may take possession of the
System and finish the work by whatever method Customer deems
expedient. In such event, Hi Country shall be entitled to receive
payment for all of the equipment and that amount of the labor under
the contract performed by Hi Country which is in proportion to the
total amount of work to be done to perform the contract.
13. MISCELLANEOUS:
(a) This Agreement is not assignable by Customer or Hi Country
without the prior written consent of the other party.
(b) The waiver by either party of any default shall not operate as a
waiver of any subsequent default.
PAGE 4
(c) If the parties sign a UCC Security Agreement and Financing
Statement describing the equipment sold hereunder as its collateral,
its provisions shall be incorporated by reference thereto the same as
if fully stated herein.
(d) This Agreement is not assignable by Customer or Hi Country
without the prior written consent of the other party. Hi Country may
hire subcontractors to perform installation tasks.
(e) This Agreement is made and governed by the law of the State of
Colorado. The sums due to Hi Country shall be paid at the office of
Hi Country in Jefferson County, Colorado, Colorado. Any litigation or
lawsuit shall be filed in and tried only in Jefferson County, Colorado
and in no other state or country.
(f) In the event of any nonpayment by Customer of any sums when they
are due by the terms of this Agreement, such sums shall accrue
interest at the rat of 18% per annum.
(g) This Agreement constitutes the entire Agreement and understanding
between the parties. No modification of any of the terms of this
Agreement shall be valid unless in writing and signed by a duly
authorized officer of each party.
Date:____________________________
Customer name:
Hi Country Wire & Telephone, Ltd.
/s/ Xxxxx X. Xxxx /s/ Xxxxxx Xxxxxxxxx
-------------------------------- ---------------------------------
By (name) By (name)
Title: Title:
ATTACH
(a) SCHEDULE 1 - LIST OF EQUIPMENT PURCHASED AND PURCHASE PRICE:
(b) SCHEDULE 2 MAINTENANCE AGREEMENT UNDER WARRANTY
(c) SCHEDULE 3 - UCC-1 SECURITY AGREEMENT AND FINANCING STATEMENT
(CUSTOMER SHALL DELIVER TWO COPIES TO HI COUNTRY):
PAGE 5
HI COUNTRY
WIRE & TELEPHONE
FOR:
JATO COMMUNICATIONS
ATTACHMENT A
1 MERIDIAN OPTION 11E PBX
1 ENHANCED BUSINESS SOFTWARE W/ACD
1 T1 TRUNK PACK
1 T1 CSU CARD
1 T1 CLOCK CONTROLLER CARD
1 M2616 CENTRAL ANSWERING MACHINE
12 M2008 DIGITAL SETS W/DISPLAY
9 M2008HF & DISP DIGITAL SETS
2 16 PORT DIGITAL STATION PORTS
2 16 PORT ANALOG XXXXXXX XXXXX
0 0 XXXX XXXXXXXXX TRUNK PACKS
1 DEC 510 TERMINAL
1 PARALLEL PRINTER
1 REMOTE ACCESS MODEM
1 SYSTEM WALL FIELD
8 M2616 DISPLAY SETS
4 M2216 ACD SETS
1 KEY LAMP MODULE
1 INTERALIA MOH ANNOUNCER
5 PMA HEADSET AMP'S
2 PROFILE OTH HEADSETS
3 PROFILE EARLOOP HEADSETS
1 UPS W/BATTERY
0000 XXXXX XXXXXX - XXXXX 000 - XXXXXX, XXXXXXXX 00000
000-000-0000 - 000-000-0000 FAX
e-mail - xxxxxxxxx@xxxxxxx.xxx
HI COUNTRY WIRE & TELEPHONE LTD.
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
(000) 000-0000
LEASE AGREEMENT
LESSEE ACCOUNT NO. 3038040222
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NAME JATO COMMUNICATIONS
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ADDRESS 0000 00xx XXXXXX, XXXXX 000
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CITY XXXXXX XXXXXX XXXXXX XXXXX XX XXX 00000
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PHONE # (000) 0000000 CONTACT
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LEASE TERMS
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TERM (IN MONTHS) ADVANCE RENTAL (+TAX) MONTHLY RENTAL (+TAX) END OF LEASE PURCHASE OPTION
12 n/a $1617.95 + tax FMV XXX $1 Other
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SYSTEM DESCRIPTION
QTY. MODEL DESCRIPTION COST
1 NORTEL MERIDIAN OPTION 11 TELEPHONE SYSTEM WITH VOICE MAIL PER ATTACHMENT A $18,451.98
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EQUIPMENT LOCATION 0000 00xx XXXXXX, XXXXX 000, XXXXXX, XX 00000
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XXXX XXXXXX XXXXXX XXXXXX XXXXX XX XXX 00000
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CONTACT
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PHONE # (000) 000-0000
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SUPPLIER TOTAL SYSTEM COST $18,451.98
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NAME HI COUNTRY WIRE & TELEPHONE LTD BUYOUT & OTHER CHARGES 1.00
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ADDRESS 0000 XXXXX XXXXXX, XXXXX 000 TAX (IF APPLICABLE)
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XXXX XXXXXX XXXXX/XXX XX 00000 TOTAL COST
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SEE REVERSE SIDE OF LEASE FOR ADDITIONAL TERMS AND CONDITIONS.
This Lease will not be binding on This Lease is non-cancellable, and
Lessor until it is accepted below. Lessee agrees that this Lease is the
entire agreement with Lessor.
Lessor LESSEE
______________________________________
BY X
______________________________________
BY /s/ PRINT NAME
____________________________________ ______________________________________
PROPOSAL
HI COUNTRY WIRE
& TELEPHONE LTD.
0000 XXXXX XXXXXX #000
XXXXXX, XXXXXXXX 00000
(000)000-0000
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PROPOSAL SUBMITTED TO PHONE DATE
JATO COMMUNICATIONS (000) 000-0000 04/02/99
STREET JOB NAME
0000 00xx XXXXXX, XXXXX 000 XXXX
XXXX, XXXXX and ZIP CODE JOB LOCATION
XXXXXX, XX 00000 SAME
ATTENTION: FAX#
XXXXXXX XXXXX (000)000-0000
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The Propose hereby to furnish material and labor - Complete in accordance with
specifications below, for the sum undetermined amount due to move and
installation of telephone equipment to new site. Payment to be made as follows:
Net thirty days
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Note this proposal may be withdrawn by Hi Country if not accepted within
10 days. Authorized Signature
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All material is guaranteed to be as specified. All work to be completed in a
workmanlike manner according to standard practices. Any alteration or deviation
from specifications below involving extra costs will be executed only upon
written orders, and will become an extra charge over and above the estimate.
All agreements contingent upon strikes, accidents or delays beyond our control.
Owner to carry fire, tornado and other necessary insurance. Our workers are
fully covered by Workmen's Compensation Insurance. Litigation and disputes of
this contract shall be held in Jefferson County, Colorado.
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We hereby submit specifications and estimates for: Installation, programming
and training on Nortel Option 11 telephone system with Octel Voice Mail.
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Hi Country Wire & Telephone Ltd. proposes to:
PICK UP NORTEL OPTION 11 TELEPHONE SYSTEM WITH
OCTEL VOICEMAIL AND APPROX 34 TELEPHONE SETS
FROM CENTENNIAL COMMUNICATIONS AT 1600 WYNKOOP
AT 12:00PM ON THE 15TH DAY OF APRIL, 1999 AND DELIVER TO
0000 00XX XXXXXX, #000, XXXXXX, XX.
INSTALLATION AND PROGRAMMING OF ABOVE EQUIPMENT
PER CUSTOMERS REQUEST. TRAINING TO BE PERFORMED ON
THE 16TH DAY OF APRIL PER CUSTOMERS REQUEST.
ABOVE REQUEST TO BE DONE ON A TIME AND MATERIALS
BASIS. HOURLY RATE TO BE AT $60.00 PER HOUR FOR WORK
PERFORMED PRIOR TO MAY 1, 1999. THE INSTALLATION, TRAINING
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ACCEPTANCE AT PROPOSAL - The above prices, specifications and conditions are
satisfactory and are hereby accepted. You are authorized to do the work as
specified. Payment will be made as outlined above.
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Date of Acceptance: 4-2-99 Signature /s/
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