General Procurement Agreement
Xx. XXXXX00000
BETWEEN
TELESCIENCES INC.
AND
U S WEST Communications, Inc.
PREAMBLE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
A1. SCOPE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
A2. ACCEPTANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . 2
A3. ACCEPTANCE DATE . . . . . . . . . . . . . . . . . . . . . . . . 2
A4. ACCEPTANCE PERIOD . . . . . . . . . . . . . . . . . . . . . . . 2
A5. COMMENCEMENT DATE . . . . . . . . . . . . . . . . . . . . . . . 2
A6. COMPLETION DATE . . . . . . . . . . . . . . . . . . . . . . . . 2
A7. DELIVER (DELIVERY). . . . . . . . . . . . . . . . . . . . . . . 3
A8. DELIVERY DATE . . . . . . . . . . . . . . . . . . . . . . . . . 3
A9. FIRMWARE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
A10. MATERIEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
A11. ORDER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
A12. PROGRAM MATERIAL. . . . . . . . . . . . . . . . . . . . . . . . 3
A13. RELATED ORDER . . . . . . . . . . . . . . . . . . . . . . . . . 3
A14. SERVICES. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
A15. SHIPMENT DATE . . . . . . . . . . . . . . . . . . . . . . . . . 4
A16. SOFTWARE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
A17. SPECIFICATIONS. . . . . . . . . . . . . . . . . . . . . . . . . 4
A18. LICENSED SOFTWARE . . . . . . . . . . . . . . . . . . . . . . . 4
A19. SUPPORT AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . 4
GENERAL TERMS AND CONDITIONS . . . . . . . . . . . . . . . . . . . . . . 5
B2. NONEXCLUSIVE NATURE OF AGREEMENT. . . . . . . . . . . . . . . . 5
B3. TERM OF AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . 5
B4. ORDER PROVISIONS. . . . . . . . . . . . . . . . . . . . . . . . 5
B5. ORDER ACCEPTANCE, MODIFICATION AND TERMINATION. . . . . . . . . 6
B6. UNCONFIRMED ORDERS. . . . . . . . . . . . . . . . . . . . . . . 7
B7. SUPPLIER PROVIDED INFORMATION . . . . . . . . . . . . . . . . . 7
B8. PRICE PROTECTION. . . . . . . . . . . . . . . . . . . . . . . . 8
B9. INVOICES AND PAYMENTS . . . . . . . . . . . . . . . . . . . . . 9
B10. REIMBURSABLE EXPENSES . . . . . . . . . . . . . . . . . . . . .10
B11. TAXES . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
B12. RECORDS . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
B13. WARRANTIES. . . . . . . . . . . . . . . . . . . . . . . . . . .11
B14. ENGINEERING COMPLAINTS. . . . . . . . . . . . . . . . . . . . .13
B15. TIME OF ESSENCE . . . . . . . . . . . . . . . . . . . . . . . .14
B16. TRAINING. . . . . . . . . . . . . . . . . . . . . . . . . . . .14
B17. MANUALS AND DOCUMENTATION . . . . . . . . . . . . . . . . . . .14
B18. COMPATIBILITY INFORMATION . . . . . . . . . . . . . . . . . . .15
B19. CUSTOMER'S INFORMATION. . . . . . . . . . . . . . . . . . . . .15
B20. RIGHTS TO INVENTIONS, DISCOVERIES AND OTHER
DEVELOPED INFORMATION . . . . . . . . . . . . . . . . . . . . .16
B21. PUBLICITY . . . . . . . . . . . . . . . . . . . . . . . . . . .16
B22. SUPPLIER'S INFORMATION. . . . . . . . . . . . . . . . . . . . .17
B23. PATENT, TRADEMARK, COPYRIGHT INFRINGEMENT . . . . . . . . . . .17
B24. PATENT LICENSES . . . . . . . . . . . . . . . . . . . . . . . .18
B25. INDEMNITY . . . . . . . . . . . . . . . . . . . . . . . . . . .18
B26. INSURANCE . . . . . . . . . . . . . . . . . . . . . . . . . . .18
B27. ASSIGNMENT. . . . . . . . . . . . . . . . . . . . . . . . . . .20
B28. RESTRUCTURE . . . . . . . . . . . . . . . . . . . . . . . . . .20
B29. SUBCONTRACTORS. . . . . . . . . . . . . . . . . . . . . . . . .20
B30. INDEPENDENT CONTRACTOR. . . . . . . . . . . . . . . . . . . . .20
B31. NONDISCRIMINATION AND COMPLIANCE. . . . . . . . . . . . . . . .21
B32. COMPLIANCE WITH LAWS. . . . . . . . . . . . . . . . . . . . . .21
B33. RIGHT TO INSPECT. . . . . . . . . . . . . . . . . . . . . . . .21
B34. RIGHT OF ACCESS . . . . . . . . . . . . . . . . . . . . . . . .21
B35. DAMAGE TO PROPERTY. . . . . . . . . . . . . . . . . . . . . . .22
B36. FORCE MAJEURE . . . . . . . . . . . . . . . . . . . . . . . . .22
B38. REMEDIES CUMULATIVE . . . . . . . . . . . . . . . . . . . . . .24
B39. GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . .24
B40. SEVERABILITY. . . . . . . . . . . . . . . . . . . . . . . . . .24
B41. WAIVER. . . . . . . . . . . . . . . . . . . . . . . . . . . . .24
B42. SURVIVAL. . . . . . . . . . . . . . . . . . . . . . . . . . . .24
B43. NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . .24
B44. PROHIBITED RELATIONSHIPS AND GRATUITIES . . . . . . . . . . . .25
B45. USE NOT ACCEPTANCE. . . . . . . . . . . . . . . . . . . . . . .25
B46. SEVERAL LIABILITY . . . . . . . . . . . . . . . . . . . . . . .25
B47. DISCOUNTS/CREDITS . . . . . . . . . . . . . . . . . . . . . . .25
ACQUISITION OF MATERIEL. . . . . . . . . . . . . . . . . . . . . . . . .26
C1. SCOPE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26
C2. DETAILED ORDER ACKNOWLEDGMENT. . . . . . . . . . . . . . . . . .26
C3. QUALITY ASSURANCE AND INSPECTION . . . . . . . . . . . . . . . .26
C4. SPECIFICATIONS OR DRAWINGS . . . . . . . . . . . . . . . . . . .27
C5. PACKING AND CONTAINERS . . . . . . . . . . . . . . . . . . . . .28
C6. TRANSPORTATION AND SHIPPING. . . . . . . . . . . . . . . . . . .28
C7. DELIVERY . . . . . . . . . . . . . . . . . . . . . . . . . . . .29
C8. ACCEPTANCE . . . . . . . . . . . . . . . . . . . . . . . . . . .29
C9. TITLE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30
C10. RISK OF LOSS . . . . . . . . . . . . . . . . . . . . . . . . . .30
C11. FUTURE AVAILABILITY OF REPAIRS, REPLACEMENT PARTS,
AND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30
C12. CHANGE NOTICES . . . . . . . . . . . . . . . . . . . . . . . . .31
C13. TECHNICAL SUPPORT. . . . . . . . . . . . . . . . . . . . . . . .31
C14. MARKING. . . . . . . . . . . . . . . . . . . . . . . . . . . . .31
C15. HAZARDOUS MATERIALS AND SUBSTANCES . . . . . . . . . . . . . . .33
C16. RADIO FREQUENCY ENERGY STANDARDS . . . . . . . . . . . . . . . .33
C17. LIGHTWAVE RADIATION. . . . . . . . . . . . . . . . . . . . . . .33
ENGINEERING SERVICES . . . . . . . . . . . . . . . . . . . . . . . . . .34
D1. SCOPE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34
D2. DEFINITION . . . . . . . . . . . . . . . . . . . . . . . . . . .34
D3. GENERAL CONDITIONS OF ENGINEERING SERVICES . . . . . . . . . . .34
D4. ACCEPTANCE . . . . . . . . . . . . . . . . . . . . . . . . . . .34
D5. TITLE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35
D6. ENGINEERING SERVICES SUPPORT . . . . . . . . . . . . . . . . . .35
INSTALLATION AND REMOVAL SERVICES. . . . . . . . . . . . . . . . . . . .36
E1. SCOPE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36
E2. DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . .36
E3. GENERAL CONDITIONS OF INSTALLATION AND REMOVAL
SERVICES . . . . . . . . . . . . . . . . . . . . . . . . . . . .36
E4. ENVIRONMENTAL COMPLIANCE . . . . . . . . . . . . . . . . . . . .37
E5. ACCEPTANCE . . . . . . . . . . . . . . . . . . . . . . . . . . .37
E6. TITLE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .38
E7. INVOICES AND PAYMENTS. . . . . . . . . . . . . . . . . . . . . .38
F1. SCOPE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .39
F2. DEFINITION . . . . . . . . . . . . . . . . . . . . . . . . . . .39
F3. GENERAL CONDITIONS OF REPAIR SERVICES. . . . . . . . . . . . . .39
F4. TRANSPORTATION . . . . . . . . . . . . . . . . . . . . . . . . .40
F5. ACCEPTANCE . . . . . . . . . . . . . . . . . . . . . . . . . . .40
G1. SCOPE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .42
G2. DEFINITION . . . . . . . . . . . . . . . . . . . . . . . . . . .42
G3. LICENSE. . . . . . . . . . . . . . . . . . . . . . . . . . . . .42
G4. LICENSE TERM . . . . . . . . . . . . . . . . . . . . . . . . . .43
G5. SOFTWARE TRAPS . . . . . . . . . . . . . . . . . . . . . . . . .43
G6. TRANSPORTATION . . . . . . . . . . . . . . . . . . . . . . . . .43
G7. RISK OF LOSS . . . . . . . . . . . . . . . . . . . . . . . . . .43
G8. DELIVERY AND INSTALLATION. . . . . . . . . . . . . . . . . . . .44
G9. ACCEPTANCE . . . . . . . . . . . . . . . . . . . . . . . . . . .44
G10. LICENSED SOFTWARE RELEASES . . . . . . . . . . . . . . . . . . .44
G11. MAINTENANCE SERVICES AND SUPPORT . . . . . . . . . . . . . . . .45
G12. TECHNICAL SERVICES . . . . . . . . . . . . . . . . . . . . . . .46
G13. SOFTWARE EVALUATION. . . . . . . . . . . . . . . . . . . . . . .46
G14. SOFTWARE QUALITY ASSURANCE . . . . . . . . . . . . . . . . . . .47
TRAINING SERVICES. . . . . . . . . . . . . . . . . . . . . . . . . . . .48
H2. DEFINITION . . . . . . . . . . . . . . . . . . . . . . . . . . .48
H3. GENERAL CONDITIONS OF TRAINING SERVICES. . . . . . . . . . . . .48
ENTIRE AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . .49
I1. LIMITED LIABILITY OF U S WEST Business Resources,
Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .49
I2. AMENDMENTS, MODIFICATIONS AND SUPPLEMENTS. . . . . . . . . . . .49
I3. ENTIRE AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . .49
I4. SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . .49
EXHIBIT A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .50
Materiel and Price List . . . . . . . . . . . . . . . . . . . . . . .50
EXHIBIT B. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .52
Discounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .52
EXHIBIT C. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .53
Service Repair and Return Order . . . . . . . . . . . . . . . . . . .53
EXHIBIT D. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .54
Nondiscrimination and Compliance Agreement. . . . . . . . . . . . . .54
ESCALATION PROCEDURE AND PROBLEM CLASSIFICATION. . . . . . . . . . . . .55
SEVERITY LEVEL 1. . . . . . . . . . . . . . . . . . . . . . . . . . .56
SEVERITY LEVEL 2. . . . . . . . . . . . . . . . . . . . . . . . . . .56
SEVERITY LEVEL 3. . . . . . . . . . . . . . . . . . . . . . . . . .57
PREAMBLE
This Agreement number RPHCR43421 is made this 1st day of May, 1991 by and
between U S WEST Business Resources, Inc., a Colorado corporation, with its
principal address at 000 Xxxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx, 00000, as agent
for U S WEST Communications, Inc. (hereinafter "Customer"), and TeleSciences CO
Systems, a Delaware corporation, with its principal address at 000 Xxx Xxxxxx
Xxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000-0000, (hereinafter "Supplier").
In consideration of the promises, mutual covenants and agreements contained
herein, the receipt and sufficiency of which are hereby acknowledged, Customer
and Supplier agree as follows:
DEFINITIONS
A1. SCOPE
This Section defines terms used throughout this document. Defined terms are
capitalized and will be read in the singular or the plural as the context
requires. Defined terms may be used in various contexts in the Agreement as
nouns, adjectives, adverbs or other forms and shall be interpreted
appropriately in the context in accordance with their stated definitions.
A2. ACCEPTANCE
"Acceptance" means Customer's acknowledgment that Materiel, Licensed
Software and Services procured hereunder conform to specifications and the
requirements of the applicable Order.
A3. ACCEPTANCE DATE
"Acceptance Date" means the date that Customer acknowledges Acceptance or,
if Customer does not so acknowledge, the last day of the Acceptance Period.
A4. ACCEPTANCE PERIOD
"Acceptance Period" means that time during which Customer determines if
Materiel, Licensed Software and Services conform to the Specifications and
the requirements of an Order and shall be as follows:
a. For Services, thirty (30) days after the Completion Date; and
b. For Materiel and Licensed Software, thirty (30) days after receipt; or
if installed by Supplier, thirty (30) days after the Completion Date.
The passage of thirty (30) days shall not be deemed Acceptance for Materiel
or Licensed Software delivered prior to the Delivery Date, or Services
completed prior to the Completion Date, without Customer's consent.
A5. COMMENCEMENT DATE
"Commencement Date" means the date stated in an Order on which Services
are to begin.
A6. COMPLETION DATE
"Completion Date" means the date stated in an Order on which Services
are to be concluded.
2
A7. DELIVER (DELIVERY)
"Deliver" ("Delivery") means Customer's receipt of Materiel and Licensed
Software at the location specified in the Order. If Customer specifies the
common carrier to be used, "Delivery" means receipt of such Materiel and
Licensed Software by the common carrier.
A8. DELIVERY DATE
"Delivery Date" means the date stated in an Order by which Materiel and
Licensed Software are required to be Delivered.
A9. FIRMWARE
"Firmware" means a set of logical instructions represented by a pattern
of bits contained in hardware.
A10. MATERIEL
"Materiel" means goods, including but not limited to, equipment, apparatus,
components, tools and supplies procured from Supplier under an Order, and
any associated Software and Firmware integral to its function. When Supplier
is performing Services associated with products not procured from Supplier,
"Materiel" shall also include goods of the same kind wherever procured.
A11. ORDER
"Order" means a written offer, whether or not identified as an offer, issued
and executed by Customer for Materiel, Licensed Software and Services and
shall be deemed to incorporate all provisions of this Agreement.
A12. PROGRAM MATERIAL
"Program Material" means information, whether tangible or intangible,
associated with Licensed Software or Software, such as: test data, flow
charts, data file listings, input/output formats, user instructions,
Specifications, loading and unloading procedures, machine configuration
information, programs, routines, subroutines, or related information
necessary for the operation and maintenance of Licensed Software or
Software. "Program Material" does not include source codes.
A13. RELATED ORDER
"Related Order" means an Order identified as being associated with other
interdependent Orders, under the provisions of this Agreement and said
Related Orders.
3
A14. SERVICES
"Services" means Engineering Services, Installation and Removal
Services, Self-Maintenance Support Services, Repair Services or other
work specified in an Order.
A15. SHIPMENT DATE
"Shipment Date" means the date stated in an Order by which Materiel and
Licensed Software is to be shipped.
A16. SOFTWARE
"Software" means a set of logical instructions and tables of information
which guide the functioning of a processor.
A17. SPECIFICATIONS
"Specifications" means criteria, technical or otherwise, for Materiel,
Licensed Software and Services which is referenced in or made a part of this
Agreement or an Order.
A18. LICENSED SOFTWARE
"Licensed Software" means standard Software programs, whether or not
associated with Materiel, for which Supplier has the right to grant licenses
or sublicenses to Customer. Licenses listed below are granted as either
perpetual or periodic, exclusive or nonexclusive, for which Supplier may or
may not receive a license fee.
A19. SUPPORT AGREEMENT
"Support Agreement" means the existing Licensed Software and Maintenance
Support Services Agreement between Customer and Supplier.
4
GENERAL TERMS AND CONDITIONS
B1. SCOPE2
This Agreement sets forth the terms and conditions under which Customer may
procure Materiel, Licensed Software and Services, through issuance of an
Order.
The terms and conditions of this Section shall control unless modified by
subsequent Sections of this Agreement or an Order. This Agreement covers all
purchases with the exception of Licensed Software or Maintenance Support
Services as referenced in the Support Agreement.
B2. NONEXCLUSIVE NATURE OF AGREEMENT
This Agreement does not grant to Supplier any exclusive privileges or rights
to provide Materiel, Licensed Software and Services to Customer.
Customer makes no guarantee of any minimum or maximum amount of Materiel,
Licensed Software and Services to be procured hereunder.
B3. TERM OF AGREEMENT
a. This Agreement shall commence on May 1, 1991, and continue in effect
thereafter until May 1, 1993. Either BRI or Supplier may terminate
this Agreement by providing the other party written notice of
termination at least ninety (90) days prior to the effective date of
termination.
b. The termination of this Agreement shall not affect the rights or
obligations of either party to the other under any then existing
Order.
c. Neither Customer nor Supplier shall be liable to the other for damages
of kind including incidental and consequential damages or any other
losses or claims whatsoever on account of or arising out of
termination of this Agreement.
B4. ORDER PROVISIONS
a. All Orders shall be signed by Customer.
b. When provisions of an Order conflict with or supplement this
Agreement, provisions of the Order which are not pre-printed shall
control. This Agreement shall control over pre-printed provisions of
the Order.
c. If one Related Order references this Agreement, all Related Orders
shall be deemed to incorporate this Agreement, whether referenced or
not. In the event of a conflict between the provisions of Related
Orders, the provisions of this Agreement shall control.
5
d. If an Order is issued in connection with a government contract, the
Order shall reference the contract and Supplier shall comply with all
mandatory provisions of said contract and procurement regulations.
Supplier shall be provided an opportunity to review such contracts
prior to its Acceptance of an Order.
e. Warranties or representations made by Supplier under an Order or in
contemplation of an Order, shall be binding upon Supplier, for
purposes of that Order.
B5. ORDER ACCEPTANCE, MODIFICATION AND TERMINATION
a. Acknowledgment or performance, in whole or in part, shall constitute
Supplier's acceptance of the Order. Acceptance of an Order binds the
parties to honor all dates, amounts and other requirements of an
Order. The passage of ten (10) working days shall constitute
Acceptance, however, the delivery interval shall begin on the day
Supplier receives an Order.
b. If Supplier is unable to accept an Order as received Supplier shall
provide Customer with a notice of non-acceptance within five (5)
working days of receipt of the Order. The notice shall state the
modifications necessary to make it acceptable. The proposed
modifications shall not be binding on Customer until accepted by
Customer in writing.
c. Customer may modify Orders subject to clause B5, paragraphs a and b
above.
d. Customer may, at any time prior to Supplier's acceptance, withdraw
an Order, in whole or in part, with no liability.
e. Following Supplier's acceptance, Customer may terminate an Order in
whole or in part, for its convenience, upon written notice, specifying
the effective date. Cancellation charges will not be assessed if
replaced by an Order for like Materiel or value within sixty (60)
days.
f. For Orders terminated by Customer after Supplier's Acceptance in
writin, between forty-six (46) and ninety (90) days prior to the
delivery date as agreed to in an Order, the cancellation fee shall be
twenty-five (25) percent of the value of the Materiel cancelled. For
Orders terminated by Customer after Supplier's acceptance, between one
(1) and forty-five (45) days prior to the delivery date as agreed to
in an Order, the cancellation fee shall be thirty- seven and one half
(37.5) percent of the value of the Materiel cancelled. Customer
reserves the right to cancel any Order, or any portion thereof, which
is not delivered within one (1) calender day after the date as agreed
to in an Order incurring no liability whatsoever.
6
B6. UNCONFIRMED ORDERS
Customer may designate an Order, before Supplier's acceptance, as an
unconfirmed Order. The unconfirmed Order shall establish Customer's position
in supplier's manufacturing, delivery and Services schedule, and shall
establish prices. Customer shall confirm, extend or withdraw the unconfirmed
Order within thirty (30) days of issuance. Any Order not confirmed or
extended shall be deemed to be terminated. Customer shall be under no
obligation to Supplier until an unconfirmed Order has been confirmed.
B7. SUPPLIER PROVIDED INFORMATION
Upon execution of this Agreement Supplier shall provide the following to
Customer:
a. A complete listing and description of Materiel, Licensed Software
and Services including training courses and materials, associated
prices, rates, charges and fees therefor;
b. Supplier's current schedule of Materiel, Licensed Software and
Services lead-time (the interval between Supplier's receipt of
Customer's Order and Shipment Date of Materiel and Licensed
Software, or Completion Date of Service);
c. Literature regarding the availability of improvements, upgrades and
field modifications to Materiel, Licensed Software and Services
describing their features and advantages; and
d. A Monthly Order and Shipment Report, mailed to BRI containing the
following information:
1) Supplier's name (including subsidiary) and address;
2) This Agreement number;
3) Time period covered;
4) A description, by noun and part numbers, of Materiel and
Licensed Software shipped including
a) The quantity ordered and the quantity shipped;
b) The ship-to location;
5) A description of Services performed;
6) The dollar value of each shipment of Materiel or Licensed
Software and Service performed; and
7) The total dollar value (i.e., summary) of Materiel or Licensed
Software shipped and Services performed.
7
Any updates to this information by Supplier shall be provided to Customer
within fifteen (15) days after publication.
B8. PRICE PROTECTION
a. For Orders issued and dated on or after the 1st day of May 1991,
through the 30th day of June, 1991, the prices, rates, charges or fees
payable by Customer for Materiel, Licensed Software and Services
purchased under this Agreement shall be, regardless of the Shipment
Date or Commencement Date, prices as set forth in Exhibit A entitled
"Materiel and Price List," attached hereto, and by this reference
incorporated herein, less any applicable discounts as described in
Exhibit B entitled "Discounts", attached hereto, and by this reference
incorporated herein. Supplier agrees to automatically extend at least
the level two (2) discount to any Orders placed under this Agreement,
during the time that Customer is making payment under the Support
Agreement.
b. Thereafter, Supplier may increase prices once in each calendar year by
notifying Customer in writing at least ninety (90) days in advance of
the effective date of any proposed price increase, with the exception
of pricing for the SEBX II (SX-5000) Materiel, for which pricing will
remain firm, and in effect, less any applicable discounts, until June
30, 1993. Increases for Materiel shall not exceed five (5) percent.
d. Increases for labor shall not exceed the U. S. Department of Labor,
Bureau of Labor Statistics, "Consumer Price Index-W for Urban Wage
Earners" for the previous twelve (12) month period for Services listed
in this Agreement.
Customer shall not be required to pay for Materiel, Licensed Software
and Services at prices other than those specified in an Order unless
previously agreed to by Customer in a written confirmation.
e. If Supplier's published prices, rates, charges or fees on the Shipment
Date of Materiel and Licensed Software or the Commencement Date for
Services are less than any prices, rates, charges or fees set forth in
the Order, Customer shall have benefit of the lesser prices, rates,
charges or fees.
f. Should the parties elect to extend this Agreement, Customer reserves
the right to determine whether any Supplier proposed price increase is
commercially reasonable. Such right may include Customer's employment
of an independent auditor.
B9. INVOICES AND PAYMENTS
a. Supplier shall issue invoices in the format required by Customer
within thirty (30) days following the Shipment Date or the Completion
Date. For Materiel and Services provided on an ongoing
8
basis, invoices shall be issued no more often than monthly. All
invoices shall be sent to the billing address noted on the Order and
shall contain where applicable: Order number, ship-to location,
description and serial/part number of Materiel and Services, Common
Language Equipment Identification (CLEI(TM)) information, direct hours
charged, classification or employee, hourly labor rates chargeable,
other applicable charges and other details required by Customer. Any
taxes, transportation costs or other associated costs are to be stated
separately. Licensed Software shall be invoiced separately. Each
invoice shall specify whether it is partial or final. No term or
condition of any invoice shall be binding upon Customer.
All invoices for Materiel shall contain applicable Common Language
Equipment Coding (CLEI(TM)) for each item invoiced in accordance
with U S WEST Reference Publication 77361, entitled "Common Language
Equipment Classification and Bar Code Labeling Requirements for
Central Office Equipment" which by this reference is incorporated
herein. CLEI(TM) is a Trademark of Xxxx
Communications Research, Inc.
b. Invoices shall be paid within forty-five (45) days following
receipt of the invoice; and
1) Receipt of the Materiel; and/or
2) Receipt of Licensed Software; provided, however, the subject
Licensed Software has received Customer's First Office
Application ("FOA") Acceptance for a particular type central
office application; and/or
3) Completion of Services.
c. Customer is not required to pay amounts that are in dispute until
forty-five (45) days after resolution. Supplier shall substantiate the
disputed amount in writing.
d. Credits due Customer may be applied against amounts owed to Supplier.
Credits shall be stated on separate invoices and at Customer's
request, paid within thirty (30) days.
e. Payment shall not be considered Acceptance of nonconforming
Materiel, Licensed Software and Services.
f. Supplier shall provide Materiel, Licensed Software and Services
without interruption in the event of disputes concerning payment or
other provisions of this Agreement.
g. Supplier shall promptly notify Customer in writing of any claims,
liens or causes of action against Supplier of which Supplier is aware,
affecting Supplier's performance of an Order. Customer may,
9
prior to making any payments for Materiel, Licensed Software and
Services or during the progress of Services, require Supplier to
furnish satisfactory evidence that all such claims, liens and causes
of action have been satisfied, released or settled. Until such
satisfactory evidence is furnished, the amount of such claims, liens
and causes of action may be retained from any monies otherwise due
Supplier.
B10. REIMBURSABLE EXPENSES
Customer will reimburse Supplier only for those expenses authorized in
writing. Only those expenses stated below will be considered.
a. Reasonable lodging expenses.
b. Airline fares at lowest rate available, not to exceed coach.
c. Car rentals, when necessary for the performance of Services.
d. Meals, not to exceed thirty (30) dollars per day.
e. Telephone calls, when necessary for performance of Services.
Personal calls are not reimbursable.
In all cases, receipts must accompany invoices requesting reimbursement for
all expenses over $25.00.
B11. TAXES
a. All taxes designated, levied or based on the prices, rates, charges or
fees or on this Agreement or the Materiel, Licensed Software and
Services provided hereunder, including sales, use, personal property,
privilege or excise taxes based on gross revenue and taxes and amounts
in lieu thereof, paid or payable by Supplier shall be added to the
invoice and paid by the Customer.
b. Both parties agree to comply with all federal, state and local laws as
they pertain to each party and shall make no claim on the other party
for such taxes except as otherwise provided in B11 a., above.
c. If Customer determines that any taxes are not payable or should be
paid on a basis less than the full price or at rates less than the
full tax rate, Supplier shall comply with such determination. Customer
shall reimburse Supplier for any taxes, interest or penalties which
Supplier may be required to pay on account of Supplier's compliance
with Customer's determinations.
d. If any taxing authority advises Supplier that it intends to audit or
assess Supplier with respect to taxes for which Customer is obligated
to reimburse Supplier, Supplier shall:
1) Promptly notify Customer; and
10
2) Afford Customer an opportunity to participate on an equal basis
with Supplier in such audit or assessment proceedings and keep
Customer fully informed as to the progress of the audit or
assessment proceedings.
Each party shall bear its own expenses with respect to any such audit
or assessment proceedings.
e. Following a determination by any taxing authority that additional tax
is due for Materiel, Licensed Software and Services, Supplier shall
provide to Customer full supporting documentation for the Materiel,
Licensed Software and Services for which such taxes are assessed. If
Customer has otherwise paid the assessed taxes, Customer shall not
reimburse Supplier for such assessment.
B12. RECORDS
a. Supplier shall maintain complete and accurate records including hours,
prices, expenses and other matters which relate to Supplier's rights
and obligations hereunder in accordance with generally accepted
accounting principles. Supplier shall retain such records for not less
than seven (7) years from the date of final payment under an Order to
which such records relate.
b. Customer shall have access to such records during normal business
hours during the term of this Agreement or during the respective
periods in which Supplier is otherwise required to maintain such
records. At Customer's request, such records, or complete and legible
copies thereof, shall be made available to Customer.
B13. WARRANTIES
a. Supplier warrants that it has title, free of all liens and
encumbrances, to all Materiel and Licensed Software that is sold,
leased or licensed to Customer. However, for Licensed Software which
is not owned by Supplier, Supplier warrants that it has the right to
grant a license to Customer.
b. Supplier warrants that Materiel shall be free from defects in design,
materials and workmanship and shall conform to and perform in
accordance with Specifications and requirements of the Order.
c. Supplier warrants that Licensed Software shall conform to
Specifications and requirements of an Order.
d. If Supplier is not the manufacturer or licensor, Supplier shall obtain
the same warranty as specified herein from the manufacturer or
licensor and the complete warranty will pass to Customer. Supplier
shall assist and cooperate with Customer in making claims under such
warranty. If Supplier is a distributor of Materiel and Licensed
Software, Supplier shall process such claims.
11
e. The warranty will not be affected by installation, removal, hardware
self-maintenance, or relocation of Materiel regardless of whether
performed by Supplier or Customer.
f. The warranty period for Materiel shall be twelve (12) months from the
Acceptance Date. The warranty period for Materiel installed by
Supplier shall be twelve (12) months from the Completion Date.
g. The warranty period for replacement Materiel shall be the same as for
new Materiel in clause B13 f. above.
h. The warranty period for repaired Materiel, Software and Services,
shall be one-hundred-twenty (120) days from completion of repairs, or
the remainder of the original warranty, whichever is greater.
i. The warranty period for Licensed Software shall be twelve (12) months
from the Acceptance Date.
j. The warranty period for Services shall be twelve (12) months from the
Completion Date.
1) Services provided hereunder shall be in accordance with
Specifications and the requirements of the Order, to the
highest standards of the industry.
2) Supplier's personnel shall be qualified to perform the tasks and
functions for which they are assigned in a workmanlike manner.
If personnel are, in Customer's opinion, unsuitable, Supplier
shall provide, at Customer's request, replacement personnel.
Supplier shall bear all associated costs to train and qualify
such personnel.
k. Warranties shall survive inspection, Acceptance and payment and shall
run to Customer, its agents, successors in interest, assigns and
customers.
l. If Materiel, Licensed Software and Services do not meet Specifications
and the requirements of the Order, Customer shall notify Supplier to
that effect during the warranty period. Supplier shall promptly remedy
such nonconformities at no additional charge.
1) Nonconforming Materiel, Licensed Software and Services shall
be either corrected on-site or returned to Supplier for
correction in accordance with the following schedule:
PDU-20 (CO Products) Returned to Supplier
Licensed Software Returned to Supplier
Installation Services On-Site
HP Host Computer Systems On-Site
All other Materiel/Software Returned to Supplier
12
Supplier agrees that emergency repairs, as identified by
Customer, will be completed within twenty-four (24) hours of
Supplier's receipt of Materiel or Software, or within
twenty-four (24) hours of Supplier's notification of
nonconforming Services.
2) If the nonconformity has not been corrected within seven (7)
days from Supplier's receipt of Materiel and products resulting
from Services, or within the agreed upon time for on-site
corrections, or if two or more such nonconformities occur within
any thirty (30) day period, then Customer may terminate, in
whole or in part, the affected Orders. If Customer so
terminates, Supplier shall promptly remove Materiel and Licensed
Software or bear the expenses for removal. Supplier shall
restore or bear the expenses of restoration, of Customer's
engineering Specifications, drawings and property to its
original condition at the direction of Customer, and refund to
Customer all monies previously paid for such Materiel, Licensed
Software and Services.
m. Customer shall attach to all returned Materiel a repair requisition
similar to that included in Exhibit C, entitled "Service Repair and
Return Order," attached hereto.
n. Out of warranty Materiel repaired by Supplier shall be warranted for a
period of one-hundred-twenty (120) days. Out of warranty Materiel
shall be repaired at a cost of 40 (forty) percent of the then current
list price.
B14. ENGINEERING COMPLAINTS
a. Supplier shall comply with the provisions in U S WEST Technical
Publication 77357, entitled "Guidelines for Engineering Complaints and
Operational Trouble Reports", which by this reference is incorporated
herein.
b. Supplier shall submit one copy of all documentation pertaining to
engineering complaints, including acknowledgment of their receipt,
related correspondence and/or reports, and final resolution of
complaints to:
U S WEST Communications
Engineering Complaint Coordinator
X.X. Xxx 0000
Xxxxxx, Xxxxxxxx 00000
B15. TIME OF ESSENCE
Time is of the essence in the Delivery of Materiel and Licensed Software and
in the performance of Services.
13
B16. TRAINING
a. Supplier shall provide sufficient training, training materials and
support to Customer to enable Customer to use Materiel, Licensed
Software and Services and to train Customer's training instructors.
b. Supplier shall provide a list of prices for training, manuals, courses
and support.
c. Customer shall have the right to reproduce training material for the
purpose of training Customer's employees. Such rights shall include
photographic, video, and audio recordings of any training or training
material.
B17. MANUALS AND DOCUMENTATION
a. Supplier shall provide, at no additional charge, one complete set of
current manuals and documentation ("Manuals") for each type of
Materiel, Licensed Software and Services purchased by Customer to:
U S WEST
IRM - Documentation Distribution Manager
0000 Xxxxxxxxxx Xxxxxx, Xxxx 0000
Xxxxxx, Xxxxxxxx 00000
Supplier shall Deliver one (1) set of Order-specific Manuals, at no
additional charge, for each item of Materiel ordered.
b. Manuals will describe in detail the engineering, installation,
maintenance, repair and operation of Materiel, Licensed Software and
Services.
c. With Licensed Software Supplier shall Deliver, at no additional
charge, two (2) sets of Program Materiel to the locations specified by
Customer.
d. Supplier shall, at no additional charge, provide all future updates,
revisions and corrections of Manuals and Program Materiel.
e. Customer shall have the right to reproduce Manuals and Program
material for the purpose of engineering, installing, maintaining,
repairing and operating Materiel, Licensed Software and Services.
Reproduction shall include the copyright or similar proprietary
notices.
B18. COMPATIBILITY INFORMATION
a. Upon request by Customer during the term of this Agreement or
within three (3) years following its termination or expiration,
Supplier shall provide Customer with interface specifications
describing the electrical, functional, physical and Software
interfaces of Supplier's Materiel and Licensed Software. This
14
excludes Supplier's proprietary PDU-20 SEBX Host compressed
transmission protocol. Upon Customer's request, Supplier shall
provide such data and information to other suppliers with whose
products Customer requires Supplier's Materiel and Licensed
Software to interface.
b. Compatibility information which is proprietary and confidential shall
be treated in accordance with clause B22., entitled "Supplier's
Information."
B19. CUSTOMER'S INFORMATION
a. Any confidential and proprietary information, marked as such,
including, but not limited to, programs, files, Specifications,
drawings, sketches, models, samples, tools, business information,
technical information or other data, written or otherwise
("Information") whether or not protected by patent or copyright, owned
by Customer and which has been furnished or disclosed to Supplier
shall remain Customer's property. Supplier shall treat Information as
proprietary and confidential and said Information shall not be
reproduced, published, or disclosed to any third party without the
prior written consent of Customer. All copies of Information shall be
returned to Customer immediately upon request. Supplier agrees to take
all necessary precautions, including but not limited to, informing its
employees of the proprietary nature of Information and the need to
guard its secrecy.
b. Any third party Information, provided under this Agreement, marked as
confidential shall be treated by Supplier in the same manner as
required for Customer's Information in clause B19 a. above. If
Supplier makes an unauthorized disclosure of such Information,
Supplier shall hold Customer harmless and indemnify Customer against
any resulting claims of any nature.
B20. RIGHTS TO INVENTIONS, DISCOVERIES AND OTHER DEVELOPED INFORMATION
In the course of, or as a result of, providing Materiel, Licensed Software
and Services under this Agreement or any Order, inventions, discoveries or
improvements or proprietary and secret concepts, methods, techniques,
processes, adaptations, ideas, specifications, business and technical
information, computer or other apparatus programs (Software), and other
ideas, knowledge or data ("Intellectual Property") whether written or not,
may be originated, discovered or developed by the parties. Such Intellectual
Property originated, discovered or developed by employees of Supplier, shall
belong to Supplier, and such originated, discovered or developed by
employees of Customer shall belong to Customer. The Intellectual Property
originated, discovered or developed jointly by employees of both parties
shall belong jointly to both; provided, however, that each party shall give
the other a royalty free, irrevocable, non-exclusive, world-wide license to
practice such Intellectual Property, whether individually or jointly
originated, discovered or developed. Each shall sign all papers and perform
all
15
acts which may be necessary, desirable or convenient to the other at its own
expense, to file and prosecute applications for patents on such Intellectual
Property and to maintain patents granted thereon. Each shall acquire from
its employees, consultants, representatives or agents who perform the work
such assignments, rights and covenants to ensure that the other shall
receive the rights provided for in this clause. Each shall assist the other
in executing any other applicable documents showing ownership.
B21. PUBLICITY
a. Supplier shall submit to Customer for prior written approval all
proposed advertising, sales promotion, press releases and other
publicity, including all media relating to this Agreement where
Customer's name, marks, or other Customer identification or
Specifications are mentioned or language from which the connection of
such names or marks therewith may, in Customer's judgement, be
inferred or implied.
b. Supplier shall remove any identification, trade names, trademarks,
insignia, symbols or evidences of Customer's inspection prior to any
sale, use or disposition of Materiel rejected by Customer.
c. This provision shall appear in all subcontracts entered into by
Supplier in the performance of this Agreement.
d. Supplier shall indemnify Customer and any third parties against any
claim arising out of Supplier's failure to comply with this clause.
B22. SUPPLIER'S INFORMATION
a. Specifications, drawings, sketches, models, samples, tools, computer
programs, technical information, business information, or data,
written, oral or otherwise, furnished to Customer, shall not be
considered to be confidential, unless marked conspicuously as such. To
the extent that Supplier's data and information is of a confidential
nature and is marked conspicuously as such, Customer agrees to treat
such data and information in confidence; provided however that
Customer shall have no liability for disclosure if the data and
information:
1) is or has become in the public domain;
2) was known to Customer before receipt from Supplier;
3) is received from third parties without breach of this Agreement;
4) is independently developed by Customer without breach of this
Agreement;
5) is disclosed more than two (2) years after receipt by
16
Customer; or
6) is disclosed inadvertently despite the exercise of the same
degree of care that Customer uses to protect its own
confidential information.
b. Notwithstanding clause B22 a. above, such information may be used
without the prior written consent of Supplier by Customer's
subcontractors for the installation, engineering, maintenance, repair
and operation of Materiel and Licensed Software, provided such
subcontractors contractually agree to the same limitations as referred
to in clause B22 a. above.
B23. PATENT, TRADEMARK, COPYRIGHT INFRINGEMENT
Supplier shall defend, indemnify and save Customer harmless, at Supplier's
own expense, against any action or suit brought for any loss, damage,
expense or liability including legal costs and attorneys' fees that may
result by reason of any infringement, or alleged infringement, of any
patent, trademark or copyright based upon the use or installation of any
Materiel, Licensed Software and Services furnished to Customer hereunder.
Should any of the Materiel, Licensed Software and Services furnished to
Customer hereunder or the operation thereof, become the subject of a claim
of any infringement of a U.S. patent, trademark or copyright, Supplier
shall, at its expense, procure for Customer the right to continue using the
Materiel, Licensed Software and Service; replace or modify the same in a
reasonable manner so that they become noninfringing; or, at Customer's
option, refund to Customer the full purchase price and associated cost of
the infringing items. Further, Supplier shall bear all expenses for such
removal, replacement and modification.
B24. PATENT LICENSES
Customer does not hereby grant to Supplier any licenses, express or implied,
under any Customer patents, copyrights, or trademarks, except to the extent
necessary for Supplier to fulfill its obligations to Customer pursuant to
this Agreement or an Order.
B25. INDEMNITY
Supplier assumes full responsibility for and shall indemnify and hold
Customer harmless from and against any claims, losses, actions, damages,
expenses and all other liabilities whether sounding in contract or in tort,
and whether at law or in equity, including, but not limited to, legal costs
and attorneys' fees, arising out of or resulting from:
a. Providing, installing and using Supplier's Materiel and the
performance of or failure to perform Services, if any such claim,
loss, action, damage, expense, or other liability is attributable to
bodily injury or to death of any person, or to damage to or
destruction or theft of any property, whether belonging to Customer
17
or another, excepting only injury, death, damage or destruction to the
extent caused by the sole negligence (except to the extent prohibited
by local law) of Customer;
b. Assertions made by Supplier under Workers' Compensation or similar
statutes; and
c. Noncompliance with all federal, state and local laws and regulations.
Customer shall give reasonable notice to Supplier of any such claim, loss,
action, damage, expense or other liability.
B26. INSURANCE
a. Notwithstanding the provisions of Section II, clause 24., entitled
"Indemnity", Supplier shall obtain and maintain, at its own expense,
all insurance and bonds whether required by law or otherwise,
including, but not limited to:
1) Workers' Compensation insurance (including the Broad Form All
States endorsement) as prescribed by law of the state in which
the Services are performed; and
2) Employers' liability insurance with limits of at least One
Million (1,000,000.00) dollars for each occurrence; and
3) Comprehensive general liability insurance with a broad form
endorsement which includes, but is not limited to, coverage for
products liability, personal injury, broad form property damage,
coverage for completed operations, and contractual liability,
with respect to the liability assumed by Supplier hereunder.
Limits shall be not less than Five Millions (5,000,000.00)
combined single limit for each occurrence; and
4) Comprehensive automobile liability insurance covering the use
and maintenance of owned, not-owned, hired and rented vehicles
with limits of not less than One Million (1,000,000.00) dollars
combined single limit coverage for each occurrence; and
5) Umbrella liability insurance which includes, but is not limited
to, coverage for products liability, personal injury, broad form
property damage, coverage for completed operations, and
contractual liability, with respect to the liability assumed by
Supplier hereunder in a format acceptable to Customer with
limits of at least Five Million (5,000,000.00) dollars for each
occurrence.
b. Supplier, its insurer and anyone claiming by, through or under them or
in its own behalf, shall have no claims, rights of action, or right of
subrogation against Customer based on any loss or
18
liability under the foregoing insurance.
c. At Customer's request, Customer shall be an additional named insured
in such insurance.
d. Supplier shall furnish a certificate or adequate proof of the
foregoing insurance. After receiving adequate proof of self-insurance,
Customer shall allow Supplier to self-insure the requirements
contained in this clause.
e. Supplier shall either require subcontractors who may enter upon
Customer's premises to maintain insurance as described herein and to
furnish certificates or adequate proof of such insurance, or provide
such insurance for the subcontractors.
f. Insurance policies shall state that Customer shall be notified in
writing at least sixty (60) days prior to cancellation of, or any
material change in, the insurance policies.
B27. ASSIGNMENT
a. Supplier shall not assign its rights or delegate its obligations
hereunder without the prior written consent of Customer. Customer may
assign its rights or delegate its obligations hereunder, in whole or
in part, to any parent, subsidiary of parent, subsidiary, affiliate,
successor or related company of Customer upon prior written notice to
Supplier. Such assignment shall not diminish any rights or obligations
that Supplier or Customer may have prior to the effective date of
assignment. This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto, their respective successors and
assigns.
b. The limitation on assignment does not apply to an assignment confined
solely to monies due or to become due. Assignment of monies shall be
void to the extent that it attempts to impose upon Customer
obligations to the assignee additional to the payment of such monies,
or to preclude Customer from dealing solely and directly with Supplier
in all matters pertaining thereto, including the negotiation of
amendments or settlements of amounts due.
B28. RESTRUCTURE
If Customer restructures through legislation, court order, government
regulation or otherwise, Customer may terminate without any penalty or
assign as set forth in clause B26., entitled "Assignment," any Order no
longer required due to the restructure.
B29. SUBCONTRACTORS
Supplier shall obtain Customer's written consent prior to subcontracting any
Services hereunder. Such requirement shall not apply to purchases of
standard commercial supplies or raw materials incidental to the
19
Services. Customer's approval of such will not be unreasonably withheld.
B30. INDEPENDENT CONTRACTOR
Persons furnished by Supplier shall be solely Supplier's employees or agents
who shall be under the sole and exclusive direction and control of Supplier.
B31. NONDISCRIMINATION AND COMPLIANCE
Unless exempt under the rules and regulations of the Secretary of Labor or
other proper authority, this Agreement is subject to applicable laws and
executive orders relating to equal opportunity and nondiscrimination in
employment. The parties hereto shall not discriminate in their employment
practices against any person by reason of race, religion, color, age, sex or
national origin and agree to comply with the provisions of such laws and
orders, as well as all laws and orders relating to the employment of the
handicapped, the employment of veterans, the use of women's and minority
business enterprises, and other laws and orders applicable in the
performance of Services or furnishing of Materiel hereunder. Supplier agrees
to comply with laws and orders listed in Exhibit D, entitled
"Nondiscrimination and Compliance Agreement," attached hereto, as
applicable, and as hereinafter amended.
B32. COMPLIANCE WITH LAWS
a. Supplier shall comply with all federal, state and local laws and
regulations which may be applicable to Supplier as an employer of
labor. Supplier shall comply with all other applicable federal, state,
county and local laws, ordinances, regulations and codes in the
performance of this Agreement, including but, not limited to the
Immigration Reform and Control Act of 1986, the procurement of
permits, licenses and certificates where needed, and shall comply with
all laws as to packing, labeling and shipping, whether the shipment or
Services are interstate or intrastate. Supplier shall bear all costs
associated with such compliance.
b. If any Materiel and Services are determined not to conform to health,
safety, or environmental standards of any governmental authority
having or asserting jurisdiction thereof, then Supplier shall bear the
cost to bring that Materiel and Services into conformity.
B33. RIGHT TO INSPECT
Customer may inspect Services performed by Supplier in progress or completed
whether such Services are performed on Customer's premises or elsewhere. The
inspection or failure to inspect shall not be construed by Supplier as
Acceptance, or as a waiver of any Customer rights hereunder.
20
B34. RIGHT OF ACCESS
a. Customer shall permit Supplier access to Customer's and others'
facilities in connection with the performance of Services. Supplier
shall assure that only trustworthy employees are allowed to enter
Customer's and others' facilities. Supplier shall give Customer
reasonable advance notice when access to Customer's or others'
facilities is required. At Customer's request, Supplier shall furnish
a personnel sheet containing the employee name, address, telephone
number, job duties, key assignment and any other information Customer
deems necessary to safeguard its property and operations.
b. Supplier and Customer, while on the premises of the other, shall
comply with all rules and regulations, including government
regulations. Supplier shall become familiar with Customer's or others'
procedures for Delivery, receipt, and storage of Materiel and other
applicable operations.
B35. DAMAGE TO PROPERTY
Supplier shall immediately notify Customer and third party owners of real or
personal property of any loss of or damage to such property caused by
Supplier. Supplier shall take precautions and necessary measures to prevent
further damage, and at Customer's option and direction, Supplier shall
replace or temporarily repair such property. At Customer's or third party
owner's option and direction, Supplier shall restore or replace Customer's
or others' property to its original condition, place such property in
operational condition or bear the cost of such restoration or replacement.
B36. FORCE MAJEURE
a. Neither party shall be held responsible to the other for delays or
failures to perform caused by fires, strikes or similar labor
difficulties, embargoes, Government requirements, civil or military
authorities, acts of God or the public enemy or other similar
unforeseeable causes beyond the control of either party. If such
contingency occurs to one party, the other party may elect to:
1) Terminate the Order, in whole or part, as to Materiel and
Licensed Software not received or Services not completed;
2) Suspend the Order for the duration of the delaying cause, buy or
sell elsewhere the items to be bought or sold thereunder, and
deduct from any Order commitment that quantity bought or sold or
for which such commitments have been made elsewhere; or
3) Resume performance under the Order once the delaying cause
ceases and, at the option of such other party, extend the
affected dates up to the length of time the contingency
21
endures. Such Order shall continue in full force and effect with
respect to all other rights and obligations.
Subparagraph B36. a. 2) above shall be deemed selected unless
written notice is given within fifteen (15) days after such other
party is apprised of the contingency.
b. Supplier shall not be relieved of liability under this clause if the
delay results from failure of Supplier's subcontractor to make a
timely delivery of material, or perform services in a timely manner if
the material or services are available from another source.
B37. DEFAULT
a. In addition to all other rights and remedies herein or at law or in
equity, Customer shall have the right to terminate an Order, in whole
or in part, without any obligation on the part of Customer, if
Supplier is in breach or default of an Order and such breach continues
for ten (10) days after Customer has notified Supplier in writing.
Customer shall have the right to retain or return Materiel and
Licensed Software already received and Accepted; provided, however,
that Customer shall pay for Materiel and Licensed Software retained.
Supplier shall reimburse Customer amounts previously paid for returned
Materiel and Licensed Software and shall bear all expenses for its
removal and return.
b. If Supplier is in breach or default of any provision of this Agreement
and the breach or default continues for fifteen (15) days after
Customer has notified Supplier, then, in addition to all other rights
and remedies at law or in equity, Customer may terminate this
Agreement without any obligation or liability on the part of Customer
whatsoever, unless otherwise agreed.
B38. REMEDIES CUMULATIVE
Any rights of termination or other remedies prescribed in this Agreement are
cumulative and are not exclusive of any other remedies to which the injured
party may be entitled herein or at law or in equity. In addition to all
other rights and remedies of Customer herein or at law or in equity,
Supplier shall reimburse Customer for those costs resulting from Supplier's
breach or default of any provisions of this Agreement.
B39. GOVERNING LAW
This Agreement shall be governed by and construed in all respects in
accordance with the laws of the State of Colorado as to both substance and
procedure. Venue and adjudication shall be Denver, Colorado.
22
B40. SEVERABILITY
If any provisions of this Agreement are deemed to be invalid or
unenforceable, the remaining provisions shall nevertheless continue in full
force and effect.
B41. WAIVER
For any waiver to be binding it shall be made in writing and signed by both
parties. No waiver of the terms of this Agreement or failure by Customer to
exercise any option, right or privilege on any occasion, or through the
course of dealing, shall be construed to be a waiver of the same, or of any
other option, right or privilege on any other occasion.
B42. SURVIVAL
Provisions of this Agreement that by their sense and context are intended to
survive performance by either or both parties, shall so survive the
completion, expiration or termination of this Agreement or an Order.
B43. NOTICES
Where notices, demands or other communications are required under this
Agreement to be made in writing, they shall be deemed duly given when
delivered in-hand, or upon receipt when properly addressed return-
receipt-requested and delivered by the United States Postal Service or other
letter delivery service to the address listed below.
Customer: Supplier:
U S WEST Business Resources TeleSciences Inc.
0000 Xxxxxxxxxx Xx. Xx. 650 351 New Albany Road
Denver Co. 80202 Xxxxxxxxxx, XX 00000-0000
Attn: TeleSciences Inc. Attn: Xxxxx Xxxxxx
Contract Agent
Agreement No. RPHCR43421
B44. PROHIBITED RELATIONSHIPS AND GRATUITIES
Each party represents and warrants that no officer, employee or agent of the
other party has been or will be employed, retained, paid a fee or otherwise
receive personal compensation or consideration from any of that party's
employees or agents in connection with the obtaining, arranging or
negotiating of this Agreement or Orders executed hereunder. The exchange or
offering of any gift, personal service, or unusual hospitality
("Gratuities") by one party of this Agreement to the other is expressly
prohibited. This prohibition is equally applicable to either party's
officers, employees, agents, or immediate family members. Either party may,
by written notice, terminate the right of the other to proceed with any
Order if it is found that Gratuities are offered or
23
have been given in connection with the execution of this Agreement or an
Order.
B45. USE NOT ACCEPTANCE
The use of Materiel and Licensed Software by Customer for business, profit,
revenue or any other purpose shall not constitute Acceptance of Materiel and
Licensed Software prior to the Acceptance Date.
B46. SEVERAL LIABILITY
All rights and obligations contained herein or in an Order shall run solely,
individually and severally between Supplier and the company of Customer
which placed an Order accepted by Supplier hereunder.
B47. DISCOUNTS/CREDITS
Any and all applicable discounts and credits shall be based upon the
combined forecasts, commitments and purchases made by all of the companies
comprising Customer.
24
ACQUISITION OF MATERIAL
C1. SCOPE
This Section sets forth the terms and conditions under which Customer may
procure Materiel through issuance of an Order and takes precedence over,
supplements and modifies those terms and conditions set forth in Section II
entitled, "GENERAL TERMS AND CONDITIONS."
C2. DETAILED ORDER ACKNOWLEDGMENT
a. Within five (5) days following acceptance of an Order or as agreed,
Supplier shall provide a detailed Order Acknowledgment which shall
include the following.
1) A detailed list of Materiel categorized by specification number
and item number;
2) The quantity of each item, unit price and extended price;
3) CLEI(TM) information;
4) The Order number;
5) The total cost of Materiel by specification number and Order;
and
6) other information, as agreed;
b. The detailed Order Acknowledgment shall be delivered to the site
specified by Customer.
C3. QUALITY ASSURANCE AND INSPECTION
a. If Supplier is the manufacturer, Supplier shall test and inspect
ordered Materiel prior to shipment to Customer in accordance with
quality assurance procedures furnished by Supplier and reviewed and
accepted by Customer.
b. Supplier agrees to inform Customer in advance in writing of any
scheduled change(s) in Supplier's manufacturing processes, quality
assurance procedures or practices when such change(s) may affect form,
fit, function, quality or reliability of Materiel.
c. Customer or Customer's agent reserves the right to inspect
manufacturing facilities, processes and finished Materiel prior to the
Shipment Date to verify compliance with the Order and adherence by
Supplier to its own quality assurance policies and procedures. Such
inspection shall not relieve Supplier of any obligations under
25
this Agreement or an Order nor shall such inspection be deemed
Acceptance.
d. Customer or Customer's authorized agent reserves the right to stop
shipment of ordered Materiel if it fails inspection as referred to in
3. C. above.
e. Supplier will provide, at the option of Customer or Customer's
authorized agent, access to its quality assurance activity results,
data, reports, charts, procedures, manuals, requirements, practices
and methods for incoming or in-process material.
f. If Customer or Customer's authorized agent observes Supplier's
deviation from Supplier's quality assurance procedures or observes
quality assurance activity results which may indicate worsening
Materiel quality or reliability, Supplier will, upon written request,
formulate a corrective action plan and submit it to Customer for
review and acceptance.
C4. SPECIFICATIONS OR DRAWINGS
a. Supplier's Specifications and drawings relating to Materiel procured
under an Order are hereby made a part of this Agreement for purposes
of that Order.
b. Supplier shall provide, at no charge, one copy of all drawings and
updates thereof, in accordance with U S WEST Technical Publications
77352, entitled "Central Office Telecommunications Equipment Standard
Drawing Requirements" and 77002, entitled "Technical Drawing Media
Standards," which are hereby incorporated by reference and made a part
hereof, to Customer's Central Office Record Center, 0000 Xxxxx
Xxxxxxx, Xxxxxxxxx, Xxxxxxxx, 00000. Supplier shall also provide, at
no charge, and on an ongoing basis, a current index of all drawings,
showing latest issue numbers, as well as complete descriptive
information, to Customer's Central Office Record Center. Such index
shall be furnished in accordance with U S WEST Technical Publication
77002, referenced above. If Customer requires additional copies of
Supplier's drawings and index, such drawings and index shall be made
available to Customer.
c. Supplier shall promptly furnish for each item of Materiel ordered,
standard site preparation Specifications, if applicable, in such
detail to ensure that Materiel can be properly installed. Customer
shall prepare the site at its own expense. Any alterations or
modifications required in site preparation attributable to Supplier's
incomplete or erroneous Specifications shall be made at Supplier's
expense.
d. Supplier shall provide with each item of Materiel ordered, current
applicable drawings in accordance with U S WEST Technical Publication
77352, entitled "Central Office Telecommunications Equipment Standards
Drawing Requirements" and in the type of media
26
as specified by Customer. Such drawings shall be Delivered to the
Materiel Delivery location and to the engineering location specified
in the Order.
e. Customer shall have the right to reproduce Specifications and drawings
and updates thereof for the purposes of engineering, installing,
maintaining, repairing and operating Materiel.
C5. PACKING AND CONTAINERS
a. Materiel shall be packaged by Supplier in packages, containers, reels
or other enclosures or receptacles to ensure adequate protection
against corrosion, static charge, discharge, deterioration and
physical damage to ensure safe delivery.
b. If Supplier uses any reusable containers, title shall remain with
Supplier. Customer shall return containers to Supplier, freight
collect, upon completion of use. No deposit or other fees will paid
for any reusable containers.
C6. TRANSPORTATION AND SHIPPING
Unless Supplier's published price includes freight charges, Customer shall
bear transportation charges as follows:
a. Supplier shall ship Materiel in accordance with Customer's
instructions with transportation charges prepaid by Supplier. Unless
otherwise agreed, transportation charges shall be limited to actual
common carrier charges which shall be stated separately on the invoice
for Materiel. Invoices reflecting transportation charges shall be
accompanied by legible copies of prepaid freight bills, express
receipts or bills of lading or other supporting documentation.
b. Customer may specify Materiel freight classifications in its Orders.
If not so specified, Supplier shall classify Materiel and invoice
Customer for freight charges in accordance with the current National
Motor Freight classifications.
c. Unless otherwise agreed, transportation charges payable by Customer
shall not exceed the lowest available cost of shipment between the
Delivery location and Supplier's nearest facility from which Materiel
can normally be shipped. Nothing herein shall be construed to alter or
amend the Delivery schedule contained in the Order.
d. Customer will reimburse Supplier only those costs for rigging and
drayage performed at Customer's site, made at Customer's request, if
the costs thereof are not part of the price in an Order.
e. Supplier shall obtain and maintain, at its expense, cargo and riggers
insurance to cover the value of Materiel being shipped.
27
C7. DELIVERY
Supplier shall Deliver Materiel listed in Exhibit A within one-hundred-
twenty (120) calendar days After Receipt of Order (ARO); provided, however:
a. Supplier shall not Deliver any Materiel prior to the Delivery Date
without Customer's consent; and
b. Customer and Supplier may agree in writing to change any Delivery
Date.
c. Materiel listed in Exhibit A sent to Supplier for repair shall be
returned to Customer within thirty (30) calendar days (ARO).
d. If Materiel or Software is not delivered within one-hundred-twenty
(120) calendar days, or by the date as agreed to in an Order, Supplier
agrees to discount the total invoice by 1% for each day the Materiel
is late, beginning thirty (30) calendar days after the due date as
agreed to in an Order, up to a maximum of thirty (30) percent.
C8. ACCEPTANCE
a. Customer may perform tests during the Acceptance Period to assure that
Materiel conforms to Specifications and requirements of the Order.
Should Materiel fail to conform, Customer may reject the Materiel.
1) If Materiel is not installed, Supplier shall, at no cost to
Customer:
a) correct any nonconformance; or
b) replace Materiel.
If subparagraphs 8. A. 1) a) or b) above fail to make Materiel
conforming, Customer may terminate the applicable Order for such
Materiel and Supplier shall refund to Customer amounts paid for
returned Materiel including transportation costs.
2) If Materiel is installed, Supplier shall, at no cost to
Customer:
a) correct any nonconformance;
b) replace Materiel; or
c) replace Materiel with equivalent Materiel that meets
Specifications and the requirements of the Order.
28
If subparagraphs 8a 2) a), b) or c) above fail to make Materiel
conforming, Supplier shall remove the nonconforming Materiel and
reimburse Customer for related costs.
The selection of any of these options shall be at the sole discretion
of Customer and shall be accomplished in a time-frame suitable to
Customer. Repaired or replacement Materiel shall be subject to this
clause.
b. Acceptance shall be deemed to have occurred on the Acceptance Date
unless Customer has rejected Materiel prior to that date.
C9. TITLE
Title to Materiel shall vest in Customer when Materiel has been Delivered.
C10. RISK OF LOSS
a. Supplier shall bear risk of loss until title passes.
b. This clause shall not be deemed to limit the liability of Supplier.
C11. FUTURE AVAILABILITY OF REPAIRS, REPLACEMENT PARTS, AND MAINTENANCE NOT
COVERED UNDER WARRANTY
a. Supplier shall maintain the capability to repair or replace Materiel
for ten (10) years after the last purchase of such. Replacement
Materiel shall conform to the original Materiel in form, fit and
function. Repair or replacement shall be accomplished within
Supplier's published repair intervals or as agreed.
b. Supplier shall perform repair or replacement of Materiel as set forth
in section F entitled, "Repair Services."
c. If Supplier is unable to maintain the capability to repair or replace
Materiel pursuant to C11 a. above, supplier shall provide
Specifications to enable other Customer contractors to manufacture or
Customer to obtain parts from third parties. Such Specifications shall
include, the following.
1) Manufacturing drawings and Specifications of raw materials and
components comprising such parts.
2) Manufacturing drawings and Specifications covering tooling and
the operation thereof.
3) A detailed list of all commercially available parts and
components including the part number, name and location of
supplier, prices and functional descriptions.
29
d. Supplier shall provide written notification one (1) year prior to
discontinuing the manufacture of items of Materiel.
C12. CHANGE NOTICES
a. Changes to Materiel shall be made in accordance with U S WEST
Technical Publication 77354, entitled "Guidelines for Product Change
Notices," incorporated by this reference and made a part hereof.
b. Supplier shall distribute one copy of each change notice to:
U S WEST Communications
Product Change Notice Coordinator
X.X. Xxx 0000
Xxxxxx, Xxxxxxxx 00000
C13. TECHNICAL SUPPORT
a. Supplier shall provide for a period of ten (10) years after the last
purchase of Materiel, technical support to assist Customer in the
engineering, installation, operation and maintenance of Materiel.
b. Supplier shall make such technical support available at no charge
during the warranty period.
c. After expiration of the warranty period such technical support shall
be available at Supplier's then current rates plus reimbursable
expenses.
C14. MARKING
a. Materiel shall be marked by Supplier with the following information,
at no additional charge:
1) Supplier model and serial numbers, if applicable;
2) Date of shipment or manufacture; and
3) CLEI(TM) codes in accordance with U S WEST Reference Publication
77361, entitled "Common Language Equipment Classification and
Bar Code Labeling Requirements for Central Office Equipment."
b. Supplier shall add any other identification which Customer may
request, at Supplier's expense.
c. Supplier shall utilize the following guidelines for packages and
containers for Materiel.
30
1) Definitions:
a) Unit Package. The first tie, wrap, bag or container
applied to a unit of Materiel (e.g., Box of 1, Bag of 10,
etc.). A unit package will be used for storing and not
for shipment of Materiel. All Materiel enclosed in a unit
package shall be identical.
b) Intermediate Package. A container, bundle or wrap which
contains two or more unit packages which is enclosed in a
shipping container. An intermediate package will be used
for storing and not for shipment of Materiel. An
intermediate package is not required unless mixed
Materiel is being enclosed in a shipping container. All
unit packages enclosed within an intermediate package
shall contain identical Materiel.
c) Shipping Container. Final package or container which is
used to ship Materiel. Shipping containers may enclose
unit packages and intermediate packages. A shipping
container may also be used for the storage of Materiel.
2) Packages and containers shall be marked as follows:
a) Each unit package shall clearly display the following
information:
(1) Quantity;
(2) Part number and description;
(3) CLEI(TM) and bar code;
(4) Month and year of manufacture; and
(5) Supplier's name or trademark.
b) Each intermediate package shall clearly display the
following information:
(1) Quantity;
(2) Part number and description;
(3) CLEI(TM) and bar code;
(4) Month and year of manufacture; and
(5) Supplier's name or trademark.
c) Each shipping container shall clearly display the
following information:
(1) Quantity;
(2) Part number and description;
(3) Supplier's name or trademark; and
(4) Gross weight in pounds.
31
d) All containers of delicate, hazardous or fragile items
shall be clearly identified as such.
C15. HAZARDOUS MATERIALS AND SUBSTANCES
a. Hazardous materials shall be shipped by Supplier in accordance with
the requirements of the Hazardous Materiels Transportation Act (49
U.S.C. 1801, et. seq.), and any other federal, state and local laws
and regulations governing conveyance of hazardous materials.
b. Supplier shall identify Materiel containing a hazardous material or
substance including, but not limited to, those governed by the
Resources Conservation and Recovery Act (42 U.S.C. 6901, et. seq.),
Hazardous Materiels Transportation Act (49 U.S.C. 1801, et. seq.) ,
Toxic Substances Control Act (15 U.S.C. 2601, et. seq.) and any
similar acts and regulations promulgated pursuant to these Acts. Each
component, self-contained unit and carrier and shipping container
shall be marked identifying the hazardous material by name.
C16. RADIO FREQUENCY ENERGY STANDARDS
Appropriate Materiel shall comply with the requirements of the Federal
Communication Commission's Rules and Regulations, Part 15, Subpart J, as
amended, including those sections concerning the labeling of such Materiel
and the suppression of radiation to specified levels.
C17. LIGHTWAVE RADIATION
Materiel containing laser devices must meet the requirements of the United
States Department of Health and Human Services, and the Bureau of
Radiological Health regulations, including, but not limited to, those
sections concerning the labeling of Materiel and the suppression of
lightwave radiation to specified levels.
C18. REGISTRATION
Appropriate Materiel shall comply with the Federal Communication
Commission's Rules and Regulations, Part 68.
32
ENGINEERING SERVICES
D1. SCOPE
This Section sets forth the terms and conditions under which Customer may
procure Engineering Services and associated Materiel through issuance of an
Order, and takes precedence over, supplements and modifies those terms and
conditions set forth in Section B entitled, "General Terms and Conditions."
D2. DEFINITION
"Engineering Services" means analyzing, planning, designing, pricing,
detailing, drafting, creating specifications, ordering and otherwise
technically describing or specifying Materiel as ordered.
D3. GENERAL CONDITIONS OF ENGINEERING SERVICES
a. Supplier shall perform Engineering Services in accordance with
Specifications and the requirements of the Order.
b. Engineering Services associated with central office equipment shall be
performed in accordance with the requirements of U S WEST Technical
Publication 77351, entitled "Central Office Telecommunications
Equipment Engineering Standards," incorporated by this reference and
made a part hereof.
c. Drafting of Customer's central office drawings shall be performed in
accordance with U S WEST Technical Publication 77353, entitled
"Central Office Drawing Standards," incorporated by this reference and
made a part hereof.
D4. ACCEPTANCE
a. When Engineering Services are associated with other Services or
Materiel procured from Supplier, Acceptance shall not occur until such
Materiel and services are accepted.
b. Customer may, during the Acceptance Period, determine whether
Engineering Services conform to Specifications and the requirements of
the Order. If such Services are nonconforming, Customer may:
33
1) Direct Supplier to re-engineer, re-design, revise and correct
specifications and associated drawings, installation
instructions and any other related documents at no cost to
Customer; or
2) If subparagraph 4. B. 1) above cannot be accomplished within a
period suitable to Customer, Customer may terminate the Order
and any Related Order, in whole or in part, and direct Supplier
to restore Customer's documentation and drawings to their
original condition at no cost to Customer. Corrected Engineering
Services shall be subject to this clause.
c. Acceptance shall be deemed to have occurred on the Acceptance Date
unless Customer has rejected Engineering Services prior to that date.
D5. TITLE
Results of Engineering Services including, but not limited to, equipment
specifications, office records, drawings and summaries of Materiel shall
become the exclusive property of Customer upon Delivery, and shall not be
used by Supplier for any other purposes.
D6. ENGINEERING SERVICES SUPPORT
Notwithstanding Acceptance, Supplier's obligation to provide Engineering
Services shall include support for such Services until the expiration of the
warranty period. Such support shall be available to Customer on-site, as
mutually agreed at no additional charge and shall not be limited to
Supplier's normal working hours.
34
INSTALLATION AND REMOVAL SERVICES
E1. SCOPE
This Section sets forth the terms and conditions under which Customer may
procure Installation and Removal Services and associated Materiel through
issuance of an Order and takes precedence over, supplements and modifies
those terms and conditions set forth in Section B entitled, "General Terms
and Conditions."
E2. DEFINITIONS
a. "Installation Services" means constructing, erecting, placing, moving,
modifying, unpacking, connecting, wiring, cabling, inspecting and
testing Materiel or performing similar work as ordered.
b. "Removal Services" means disconnecting, de-cabling, dismantling,
mining, packing or performing similar work affecting Customer's
Materiel as ordered.
E3. GENERAL CONDITIONS OF INSTALLATION AND REMOVAL SERVICES
a. For Services performed in central offices, Supplier shall perform such
Services in accordance with U S WEST Technical Publication 77350,
entitled "Central Office Telecommunications Equipment Installation
Guidelines," incorporated by this reference and made a part hereof.
b. Supplier shall provide all labor, tools (including portable tools and
test sets) portable buildings and toilets, trailers, storage
facilities, vehicles, equipment and other materials required.
c. Supplier shall receive, uncrate, unpack and inspect for damage, all
Materiel to be installed, and shall promptly notify Customer of any
shortage or damage. If Supplier fails to make such notations, Supplier
shall be responsible for all loss of or damage to Materiel. When
Supplier is also providing the Materiel, Supplier shall be solely
responsible for all claims, reordering and replacement of affected
Materiel.
d. When necessary, Supplier shall arrange for warehousing, hauling and
hoisting, or other services.
e. When requested by Customer, Supplier shall pack, crate and otherwise
prepare Customer's removed Materiel for shipment.
f. Supplier shall provide its current installation quality standards,
including workmanship standards, test and inspection methods, sampling
plans, test equipment calibration methods and requirements, methods
for determining acceptance quality levels and
35
similar criteria for administering Supplier's quality assurance
program.
g. Customer may review the results of Supplier's quality assurance
inspections and observe a sample of Supplier's inspections at times
and places determined by Customer.
h. Supplier shall conduct tests and analysis of installed Materiel, in
accordance with Specifications and the Order, prior to the Completion
Date.
i. At least one week prior to the Commencement Date, Supplier shall
provide for Customer's approval, a proposed method of procedures and
shall notify Customer of any known errors and omissions in
specifications.
j. Customer reserves the right to perform installation and removal of
Materiel or Software using personnel internal to Customer's
corporation, or other agents of Customer.
k. When installation costs are provided by supplier, those costs shall be
unbundled and listed as separate from all other costs.
E4. ENVIRONMENTAL COMPLIANCE
Supplier warrants and certifies that Services shall conform and comply with
all applicable federal, state, county and municipal laws, statutes,
regulations and codes, governing the environment or ecology, including
without limitation the Toxic Substances Control Act (15 U.S.C. 2601, et.
seq.), Resources Conservation and Recovery Act (42 U.S.C. 6901, et. seq.),
Hazardous Materiels Transportation Act (49 U.S.C. 1801, et. seq.) and
similar governmental acts and regulations promulgated pursuant thereto.
Supplier shall recertify compliance therewith at Customer's request.
Supplier shall provide a copy of all hazardous material disposition and
transportation forms issued.
E5. ACCEPTANCE
a. At least seven (7) days prior to completion of any Installation and
Removal Services or portions thereof, Supplier shall notify Customer
that Services will be available for inspection. Customer may audit
such Services to ensure that Services are performed in accordance with
Specifications and Orders. Such inspections shall not constitute
Acceptance.
b. Installation and Removal Services shall not be deemed complete until
all associated Materiel is ready for Acceptance.
c. Customer may, during the Acceptance Period, determine if Installation
and Removal Services conform to Specifications and the requirements of
the Order. If such Services are nonconforming, Customer may direct
Supplier to:
36
1) Repair, modify and otherwise correct nonconformities, at no cost
to Customer;
2) Remove or replace nonconforming Materiel and Licensed Software
and install new Materiel, at no cost to Customer, if Supplier
provided Materiel and Licensed Software; or
3) Correct Engineering services nonconformities, at no cost to
Customer, if Supplier provided Engineering Services.
The above shall be accomplished in a time suitable to Customer.
Corrected Installation and Removal Services shall be subject to this
clause.
d. Acceptance shall be deemed to have occurred on the Acceptance Date
unless Customer has rejected Installation and Removal Services prior
to that date.
E6. TITLE
Title to any Materiel furnished by Supplier as a part of the Installation
Services shall vest in Customer upon Delivery. Title to Customer's removed
Materiel shall remain with Customer.
E7. INVOICES AND PAYMENTS
a. Supplier shall submit invoices as follows:
1) Installation and Removal Services, which are scheduled to be
completed in twelve (12) weeks or less, shall be invoiced
within thirty (30) days following the Completion Date; and
2) Installation and Removal Services which are scheduled to be
completed in more than twelve (12) weeks shall be invoiced on a
monthly basis for charges accrued during the preceding month.
37
REPAIR SERVICES
F1. SCOPE
a. This Section sets forth the terms and conditions by which Customer may
procure Repair Services through issuance of an Order and takes
precedence over, supplements and modifies those terms and conditions
set forth in Section B entitled, "General Terms and Conditions."
b. Repair Services does not include maintenance services or repairs to
Materiel under warranty.
F2. DEFINITION
"Repair Services" means inspecting for damages, repairing, cleaning,
lubricating, adjusting, calibrating, restoring or rebuilding, refurbishing,
testing and retrofitting engineering changes and updates, and performing
similar Services.
F3. GENERAL CONDITIONS OF REPAIR SERVICES
a. Supplier shall perform in accordance with Specifications and the
requirements of the Order.
b. Replacement Materiel shall conform to the original Materiel in form,
fit and function.
c. Unless otherwise specified in an Order, Supplier shall perform and
Deliver repaired or replaced Materiel within thirty (30) days of
receipt of Materiel.
d. Customer shall attach to all returned Materiel a repair requisition
similar to that included in Exhibit C, entitled "Service Repair and
Return Order."
e. Supplier shall package Materiel in compliance with all federal, state
and local laws and regulations.
f. New or equivalent parts shall be used in effecting repairs or
replacement. Parts which have been removed from Materiel shall become
Supplier's property. Parts which are installed in Materiel shall
become Customer's property.
g. If Materiel returned to Supplier for is irreparable, Supplier shall
notify Customer and request disposition instructions for such
Materiel. Customer's liability with regard to irreparable Materiel
shall be limited to transportation charges associated with the return
of Materiel. If requested by Customer, Supplier shall dispose of the
irreparable Materiel and pay Customer the salvage
38
value.
h. Supplier shall be strictly liable for loss of or damage to all
Materiel in its care, custody or control.
i. In the event of an emergency or out-of-service condition attributable
to Materiel or Software furnished hereunder, Supplier agrees to ship
replacement Materiel or Software within twenty-four (24) hours of
verbal notification from Customer, for a period of ten (10) years
after the delivery of such Materiel or Software. If replacement
Materiel will not be available for shipment within twenty-four (24)
hours, Supplier shall notify Customer immediately by telephone and
arrange at Customer's option and at Supplier's expense, for: (a) an
alternate shipping schedule; or (b) telephonically assisting Customer
in repair of the defective Materiel or Software at no charge to
Customer. The phone number to call for emergency replacement service
is (000)000-0000. This services shall be available twenty-four hours a
day, seven days a week.
j. Materiel on which have been performed shall have the repair warranty
expiration date identified in a permanent manner at a readily visible
location. Repaired Materiel shall be returned with a tag or other
papers describing the and any modifications and improvements which
have been made.
F4. TRANSPORTATION
Supplier shall ship repaired Materiel to Customer using the lowest available
cost of shipment with transportation charges prepaid by Supplier and added
as a separate item to the invoice. At Customer's request, Supplier shall
substantiate charges by providing Customer with a legible copy of the
freight xxxx. Risk of loss of and damage to repaired Materiel during
shipment to Customer shall be borne by Supplier.
F5. ACCEPTANCE
a. Customer may, during Acceptance Period, inspect repaired Materiel to
determine that have been performed in accordance with Specifications
and requirements of the Order. Repaired Materiel which is
nonconforming may be rejected by Customer.
39
1) If Materiel is not installed, Customer may either:
a) Request Supplier to correct any nonconformity at no cost
to Customer, in a period of time suitable to Customer; or
b) Terminate the Order. In such case any monies previously
paid to Supplier for such shall be refunded.
2) If Materiel is installed, Customer may:
a) Require Supplier to correct any nonconformity or repair
Materiel in place, at Customer's convenience and at no
cost to Customer;
b) Require Supplier to remove and repair rejected Materiel
at no cost to Customer, and reimburse or credit Customer
for costs incurred in the removal and reinstallation of
nonconforming Materiel; or
c) Terminate the Order. In such case any monies previously
paid to Supplier for such shall be refunded.
b. Acceptance shall be deemed to have occurred on the Acceptance Date
unless Customer has rejected repaired Materiel prior to that date.
40
LICENSED SOFTWARE1
G1. SCOPE
This Section sets forth the terms and conditions under which Customer may
procure Licensed Software through issuance of an Order and takes precedence
over, supplements and modifies those terms and conditions set forth in
Section B entitled, "General Terms and Conditions."
G2. DEFINITION
"Licensed Software" means standard Software programs, whether or not
associated with Materiel, for which Supplier has the right to grant licenses
or sublicenses to Customer. Licenses listed below are granted as either
perpetual or periodic, exclusive or nonexclusive, for which Supplier may or
may not receive a license fee.
Corporate License. A corporate license is a license which grants to
Customer the right to use and duplicate Licensed Software for use at
as many Customer sites and on as many Customer owned, leased or
operated Central Processing Units (CPU) as Customer desires for a
single license fee.
Site License. A site license is a license which grants to Customer the
right to use Licensed Software on any and all computer systems owned,
leased, or operated. by Customer at a single location or installation
known or identified by a single street or mailing address.
CPU License. A CPU license is a license which grants to Customer the
right to use Licensed Software on a single designated CPU. Any CPU
license may be temporarily transferred to a backup CPU which may be at
the same Customer site, another Customer site or at a site owned by a
third party.
G3. LICENSE
a. By acceptance of the Order, Supplier grants to Customer a license, as
specified in the Order, to use Licensed Software, including all future
releases or versions, patches, fixes, corrections, enhancements,
improvements, system modifications and updates relating to such
Licensed Software which are developed or acquired by Supplier and
which have been purchased by Customer or provided under the Support
Agreement or this Agreement. Further, Supplier agrees that no other
license agreement for the same subject matter, executed by Customer
contemporaneously with, or purporting to become effective upon opening
the delivery wrapper, shall alter, modify or amend the terms hereof
and the applicable Order. If Customer does not specify the type or the
term of the license in an Order, the license shall be deemed to be a
perpetual, nonexclusive, site license.
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b. Supplier shall provide Program Material prior to the Delivery Date at
no additional charge. Program Material shall comply with Customer's
Specifications and the highest standards of the industry with respect
to content, size, legibility and reproducibility.
c. Licensed Software provided by Supplier for use with Materiel acquired
under this Agreement may be sublicensed to any subsequent third party
purchaser of such Materiel, provided such third party purchaser agrees
to assume the obligations contained herein.
d. Customer may transfer, assign or sublicense any license granted by
Supplier hereunder, to any parent, subsidiary of parent, subsidiary,
affiliate, successor or related company of Customer upon prior written
notice.
G4. LICENSE TERM
The license for Licensed Software shall be effective on the Acceptance Date
and shall continue for the term specified in the Order. Notwithstanding the
above, Customer may, at any time, terminate the license upon thirty (30)
days prior written notice.
G5. SOFTWARE TRAPS
a. If Supplier installs in its Licensed Software any software "traps" or
other instructions designed to terminate or disrupt the operation of
the Licensed Software for any purpose, Supplier shall give Customer
notification of such devices in its acceptance of the Order.
b. If Supplier fails to notify Customer, Supplier shall be liable for all
damages, whether consequential, incidental or special damage,
including but not limited to lost income or lost revenue, resulting
from any failure of operation caused by such traps.
G6. TRANSPORTATION
Supplier shall bear transportation charges of Licensed Software to the
address stated in the Order. Customer shall bear transportation charges for
Licensed Software returned to Supplier.
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G7. RISK OF LOSS
Supplier shall bear the risk of loss of or damage to the Licensed Software
medium during shipment to Customer and Customer shall bear the risk of loss
of or damage to Licensed Software medium in its possession except to the
extent such loss or damage is attributable to Supplier.
G8. DELIVERY AND INSTALLATION
a. If Licensed Software is installed by Customer, Supplier shall provide
at no additional charge technical support and Specifications including
installation instructions and acceptance test procedures, to allow
Customer to properly install, test and accept Licensed Software.
b. If Licensed Software is installed by Supplier, Supplier shall perform
tests to determine if Licensed Software meets Specifications and the
requirements of the Order prior to completion of Installation
Services. Supplier shall provide copies of all test results.
c. Supplier shall, at shipment, notify Customer of any known defects in
Licensed Software, their criticality and impact on the operation of
the Licensed Software and associated Materiel. Supplier shall also
provide its written plans and schedule for corrective action. Use or
operation of Licensed Software pursuant to this provision shall not be
construed to be Acceptance or a waiver of any Customer rights under
this Agreement or applicable Order.
G9. ACCEPTANCE
a. Customer may, during the Acceptance Period, determine if Licensed
Software conforms to Specifications and the requirements of the Order.
If such Licensed Software is nonconforming, Customer may:
1) Direct Supplier to correct the nonconformance;
2) Direct Supplier to replace the Licensed Software with Licensed
Software which meets the applicable Specifications and conforms
to the Order; or
3) If neither 9. A. 1) nor 2) above can be accomplished within a
reasonable time suitable to Customer, Customer may terminate the
Order and direct Supplier to remove the Licensed Software and
render full credit to Customer.
b. Acceptance shall be deemed to have occurred on the Acceptance Date
unless Customer has rejected Licensed Software prior to that date.
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G10. LICENSED SOFTWARE RELEASES
a. Maintenance releases are patches, fixes and corrections provided by
Supplier to correct Licensed Software defects or malfunctions. During
the warranty period Supplier shall notify Customer of the availability
of such releases. The notice shall describe the defects or
malfunctions to be corrected and the criticality of each. Maintenance
releases shall be made available to Customer at no additional charge
during the warranty period.
b. New releases are releases which incorporate new features or
enhancements to the Licensed Software. Supplier shall notify Customer
of the availability of such releases. The notice shall include a
description of the features and enhancements to be provided and the
cost for each release.
c. Supplier shall support each Licensed Software maintenance release for
a minimum of two (2) years from the release date and shall support
each new release for a minimum of eight (8) years from the release
date.
d. Supplier shall, at no charge to Customer, keep and maintain current, a
copy of the Licensed Software source code in escrow with the Citibank
of New York, as escrow agent. If supplier is unable, for any reason,
to continue to support Licensed Software pursuant to 10. C. above,
Supplier or Supplier's authorized trustees or receivers acting on
behalf of Supplier shall provide, at no charge, all technical
information, including source code, to enable Customer or others to
support Licensed Software. Supplier shall, at the earliest possible
time, provide written notification of Supplier's inability to continue
Licensed Software support. Such written notification shall include the
means by which Customer may obtain such technical information,
including source code.
G11. MAINTENANCE SERVICES AND SUPPORT
a. Supplier shall provide Licensed Software maintenance as ordered to
assure that such Licensed Software meets Specifications and remains in
good operating order. Maintenance services shall include but not be
limited to such items as:
1) Maintenance releases, which correct defects or malfunctions;
2) Periodically published reports describing known "bugs" and
solutions therefor; except that Supplier all immediately notify
Customer of known service and/or revenue affecting bugs and, if
known, the solutions therefore;
3) Issuing, maintaining and revising manuals and documentation to
incorporate new or revised operating procedures resulting from
corrections to and revisions of the Licensed Software pursuant
to Section B, clause B17., entitled "Manuals and Documentation."
4) Assisting in problem identification;
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5) Returning inoperable Licensed Software to operating condition by
providing local or temporary patches and fixes; and
6) Correcting defects in Licensed Software.
b. Supplier shall provide twenty-four (24) hours a day and seven (7) days
a week telephone support for Licensed Software maintenance as set
forth in clause F3. entitled "General Conditions of Repair Services".
G12. TECHNICAL SERVICES
Supplier will provide technical services associated with Licensed Software
pursuant to an Order. Technical services are services which Customer
requires to meet its own customized uses for the Licensed Software and which
are beyond the warranty, maintenance, and support services provided under
this Agreement.
G13. SOFTWARE EVALUATION
a. Supplier may bail Licensed Software to Customer, at no charge, to
allow Customer to evaluate the applicability of such Licensed Software
to its business, subject to the following:
1) Customer shall issue an Order to Supplier;
2) The term of the evaluation shall be forty-five (45) days, unless
otherwise stated in the Order; and
3) Customer will use Licensed Software provided under this clause
for the purpose of evaluation. Such evaluation shall not
obligate Customer to procure Licensed Software for future use.
b. Customer shall promptly return Licensed Software and accompanying
documentation to Supplier upon completion of the evaluation period or
shall notify Supplier of its intent to procure the Licensed Software
and shall then issue an Order for the Licensed Software. customer is
under no obligation to reveal the results of the evaluation to
Supplier.
c. Customer shall not duplicate the Licensed Software, any portion
thereof, or any associated documentation, unless necessary for the
evaluation.
d. Notwithstanding the fact the term "Order" is used in this provision,
the relationship between Supplier and Customer shall be that of Xxxxxx
(Supplier) and Bailee (Customer) and the provisions of Sections I and
II shall not apply, excepting Section II, clause 21., entitled
"SUPPLIER INFORMATION." Upon giving Customer possession, Supplier
shall give notice in writing of the value of the bail property and
Customer shall have no liability for loss, damage, or other claims of
any nature respecting said property
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beyond said value.
G14. SOFTWARE QUALITY ASSURANCE
a. The term Software as used in this clause includes, but is not limited
to, computer programs, including firmware, data related to these
programs, associated documentation and all associated support and
control activities.
b. Supplier shall test the Software prior to shipment to Customer or
incorporation into a hardware system in accordance with quality
assurance procedures developed by the Supplier and reviewed and
accepted by the Customer.
c. Under an Order or in contemplation of an Order, Supplier shall grant
to Customer or Customer's authorized agent the right to perform a
Software quality program analysis of Supplier' s Software development
and support processes.
d. Customer or Customer's authorized agent may monitor the process by
which the Supplier controls the quality of the Software by means of
periodic on-site analysis and verification. If problems or
deficiencies are noted insofar as the Supplier's adherence to its own
quality assurance procedures, the Customer may require the Supplier to
formulate a corrective action plan and submit it to Customer for
review and acceptance.
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TRAINING SERVICES
H1. SCOPE
This Section sets forth the terms and conditions under which Customer may
procure Training Services through issuance of an Order and takes precedence
over, supplements and modifies those terms and conditions set forth in
Section B entitled, "General Terms and Conditions."
H2. DEFINITION
"Training Services" means instructing, teaching, qualifying, or certifying
Customer's or others' employees or providing other related services.
H3. GENERAL CONDITIONS OF TRAINING SERVICES
a. Supplier shall provide, as required by an Order personnel to conduct
training and instructional aids appropriate for each course, including
books, pamphlets and diagrams.
b. Customer may, without liability, terminate any Training Services by
giving Supplier written notice fourteen (14) days prior to the
Commencement Date.
c. Customer shall have the right to reproduce all Training material for
internal use subject to Section B, clause B22., entitled "Supplier's
Information".
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ENTIRE AGREEMENT
I1. LIMITED LIABILITY OF U S WEST Business Resources, Inc.
BRI is acting as agent in the negotiation, execution and administration of
this Agreement, but BRI shall not in any event be liable for the performance
or nonperformance of this Agreement or any Order by Customer, except where
BRI is Customer.
I2. AMENDMENTS, MODIFICATIONS AND SUPPLEMENTS
Amendments, modifications and supplements to this Agreement shall be binding
upon Customer and Supplier after the effective date, provided that such are
in writing, signed by an authorized representative of both parties and, by
reference, incorporate this Agreement and identify the specific sections
or clauses contained herein, which are amended, modified or supplemented.
I3. ENTIRE AGREEMENT
This Agreement, together with all Exhibits and subordinate documents
incorporated by reference constitute the entire agreement between the
parties. This Agreement supersedes all prior oral and written
communications, agreements and understandings of the parties.
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I4. SIGNATURES
In WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers or representatives on the date
first above written.
U S WEST Business Resources, Telesciences Inc.
Inc., as agent for U S WEST
Communications
By: Xxxxxx Xxxx By: Xxxxxx Xxxxxxx
_________________________ _________________________
Signature: Signature:
/s/ Xxxxxx Xxxx /s/ Xxxxxx Xxxxxxx
_________________________ _________________________
Title: Title:
Contract Agent V.P., Mkt. & Sales
_________________________ _________________________
Date Signed: Date Signed:
April 25, 1991 5/30/91
_________________________ _________________________
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RPHCR43421
Amendment No. 7
This Amendment No. 7 is entered into effective as of the twenty-eighth day of
April, 1995, by and between U S WEST Business Resources, Inc., a Colorado
corporation, with its principal place of business located at 000 Xxxxxxxxx Xxxxx
Xxxx, Xxxxxxxxx, Xxxxxxxx 00000, as agent for U S WEST Communications, Inc.,
("Customer") and Securicor Communications Ltd., a United Kingdom company
formerly doing business as TeleSciences CO Systems, with offices for transaction
of business located at Xxxxxx Park House, 00 Xxxxxxxxxx Xxxx, Xxxxxx Xxxxxx,
Xxxxxxx XX0 0XX ("Supplier").
RECITALS
Customer and Supplier entered into a General Procurement Agreement Xx.
XXXXX00000 dated the 1st day of May, 1991, (the "GPA");
The GPA has been previously amended under instruments dated September 13, 1991
(Amendment No. 1), November 15, 1991 (Amendment No. 2), October 23, 1992
(Amendment No. 3), april 1, 1993 (Amendment No. 4), July 1, 1993 (Amendment No.
5) and July 1, 1994 (Amendment No. 6.);
The term of the GPA will automatically expire on May 1, 1995 (the "Expiration
Date"); and
Customer and Supplier wish to further amend the GPA under the terms and
conditions contained herein.
AGREEMENT
In consideration of the mutual promises and advantages to the parties, the
parties incorporate by reference and agree to the accuracy of the above recitals
and further agree as follows:
1.0 DESCRIPTION OF AMENDMENTS AND MODIFICATIONS
1.1 The parties agree that the GPA shall not expire on the
Expiration Date, but shall automatically renew and
automatically expire on December 31, 1997.
1.2 Exhibit B of the GPA entitled "Discounts": delete the text in
its entirety and replace with the text appearing in Exhibit B
entitled "Discounts" dated April 28, 1995 attached hereto and
which by this reference is incorporated herein.
2.0 EFFECTIVE DATE
2.1 This Amendment No. 7 shall be deemed effective the twenty-
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RPHCR43421
Amendment Xx. 0
xxxxxx xx Xxxxx, 0000.
3.0 SEVERAL LIABILITY
3.1 The term Customer as used herein may be applicable to one or
more parties and the singular shall include the plural. If there
shall be more than one party referred to as Customer herein,
then their obligations and liabilities shall be several, not
joint.
4.0 FURTHER AMENDMENTS
4.1 Except as modified herein, the provisions of the GPA shall
remain in full force and effect. Neither the GPA nor this
Amendment No. 7 may be further amended except by written
instrument executed by an authorized representative of both
parties.
The parties intending to be legally bound have executed this Amendment No. 7 in
multiple counterparts, each of which is deemed an original, but all of which
shall constitute one and the same instrument.
Securicor Communications Ltd. U S WEST Business Resources,
Inc. as agent for U S WEST
Communications, Inc.
/s/ Xxxxxx X. Xxxxxxx /s/ Xxxxxxx X. Xxxx
Signature: _________________________ Signature: _______________________
Xxxxxx X. Xxxxxxx Xxxxxxx X. Xxxx
By: ________________________________ By: ______________________________
V.P. Sales Contract Agent
Title: _____________________________ By: ______________________________
4/30/95 4/28/95
Date Signed: ______________________ Date Signed: _____________________
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