1
Exhibit 10.9
TRITON NETWORK SYSTEMS, INC.
SUPPLY AGREEMENT
This Supply Agreement (the "Agreement") is made as of
December 7, 1999 (the "Effective Date")
between Triton Network Systems, Inc. ("Seller", also referred to as "Triton"),
a Delaware corporation with principal place of business at:
0000 Xxxxx Xxxx Xxxxxx
Xxxxxxx, XX; USA 32819
and
CenturyTel Supply Group, Inc. ("Buyer")
a Louisiana corporation with principal place of business at:
000 Xxxxxxx Xxxx Xxxxx
Xxxxxx, XX 00000
In consideration of the mutual covenants contained herein, the Parties agree as
follows:
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ARTICLE 1. DEFINITIONS
As used in this Agreement, the following terms have the following meanings:
1.01 "AFFILIATE" means any entity listed in Exhibit 1 or any entity which is
a parent or subsidiary of a Party or which is controlled by or under
common ownership or control of a Party.
1.02 "AGREEMENT" means this Supply Agreement, and the Exhibits attached
hereto, as they may be amended from time to time.
1.03 "ACCEPTANCE" means with respect to deliveries of the Equipment to
Buyer, that the shipment has been inspected by Buyer, the paperwork,
including packing list, accurately matches the shipment and the
shipment matches the Buyer's Purchase Order or other written delivery
instructions. Acceptance shall be deemed to have occurred within 10
days of Seller's delivery hereunder.
1.04 "ANNUAL SUPPORT FEE" shall mean the fees for annual software support
by Seller as reflect in Exhibit 2.
1.05 "APPLICATIONS" means any Software program, Product, or invention
developed by Buyer.
1.06 "BACKWARDS COMPATIBLE" means (i) with respect to Software, the ability
of newer or more advanced versions to function seamlessly with older or
less advanced version of Software and Products, including without
limitation, all existing Software and Products purchased by Buyer and
(ii) with respect to Equipment the interoperability and compatibility
of such Equipment with existing Products purchased by Buyer and Buyer's
Network infrastructure, in each case resulting in no reduction in the
existing level of functionality of the existing Products or Buyer's
Network infrastructure. Software and Equipment shall be compatible with
the current Software Release and at least two (2) immediately preceding
Major Software Releases.
1.07 "CHANGE ORDER" shall have the meaning set forth in Section 5.03(d).
1.08 "CONFIDENTIALITY AGREEMENT" has the meaning set forth in Section 10.01.
1.09 "DELIVERY DATE" means the date on which Products ordered by Buyer are
to be delivered to the location(s) specified in Purchase Orders (such
date shall be subject to Seller's Standard Intervals).
1.10 "DOCUMENTATION" means the system standard documentation provided to
Buyer, in written or electronic form, as described in this Agreement.
All Documentation shall be subject to applicable copyright and
confidentiality restrictions.
1.11 "EFFECTIVE DATE" shall mean December 7, 1999.
1.12 "EQUIPMENT" means the hardware Products provided to Buyer as defined in
this Agreement. In addition to hardware developed by Seller, Equipment
generally includes Third Party Equipment, except as otherwise provided
in this Agreement.
1.13 "IFU" refers to Seller's Invisible Fiber(TM) unit.
1.14 "INITIAL PURCHASE CANCELLATION FEE" has the meaning set forth in
Section 4.05.
1.15 "LATE DELIVERY" has the meaning set forth in Section 5.04.
1.16 "LIST PRICE" means the Seller's standard price before any discount, as
maybe available in price lists from time to time.
1.17 "MAJOR SOFTWARE RELEASE" means a Software Release which contains
significantly new features
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and functionality and does not include maintenance releases, updates or
bug fixes.
1.18 "MINIMUM PURCHASE CANCELLATION FEE" has the meaning set forth in
Section 4.04.
1.19 "NET PRICE" means the price the Buyer will pay after Seller's discount.
1.20 "PARTY" means either Buyer or Seller.
1.21 "PRODUCT" means, individually and collectively, the Equipment,
Software, and Documentation specified in Exhibit 2. In addition, any
item Seller adds to its generally available standard Product price list
or so identifies to Buyer in a Quotation shall be deemed incorporated
into this Agreement upon the mutual agreement of the Buyer and Seller,
subject to additional terms and conditions specified in the applicable
Product Exhibit, if any.
1.22 "PURCHASE ORDER" means a written, numerically controlled and dated
purchase authorization document issued by Buyer or Buyer Affiliate to
Seller or Seller Affiliate, specifying the types and quantities of
Products to be furnished by Seller.
1.23 "QUOTATION" means a written budgetary or firm price quotation, as
specified in this Agreement, issued by Seller to Buyer for the supply
of any Products pursuant to this Agreement.
1.24 "SHIP DATE" means the date on which a Product ordered by Buyer is to be
shipped as agreed to by the Parties, or in the case of Software, the
date upon which such Software is either available for download by Buyer
or physically shipped to Buyer.
1.25 "SOFTWARE" means the Seller's proprietary and/or Third Party Software
computer programs provided to Buyer (consisting of firmware and logic
instructions in machine readable code residing in, or intended to be
loaded in computer memories which provide basic logic, operating
instructions and Seller-related application instructions, but excluding
customer data) as well as the Documentation used to describe, maintain
and use the programs. Any reference herein to Software being "sold,"
"Purchased" or the like is understood to be a reference in fact to the
program being licensed.
1.26 "SOFTWARE LICENSE" shall mean the license to use Software granted to
Buyer by Seller pursuant to this Agreement.
1.27 "SOFTWARE LICENSE FEE" shall mean the fee to be paid by Buyer to
Seller for the right to use the Software pursuant to this Agreement.
1.28 "SOFTWARE RELEASE" means revisions to Software or new Software
containing new features, and/or enhancements, and/or certain problem
fixes that may be supplied by Seller to Buyer from time to time.
1.29 "STANDARD INTERVAL" means the standard time prior to the shipment of a
Product following acceptance of a Purchase Order by Seller. Seller's
Standard Interval is ninety (90) days for forecasted quantities.
1.30 "TAC" means Seller's Technical Assistance Center.
1.31 "TERM" means the duration of this Agreement.
1.32 "THIRD PARTY" means any individual or legal entity not including Buyer
and Seller and their respective Affiliates.
1.33 "THIRD PARTY EQUIPMENT" means any Equipment not of Seller's
manufacture. In addition, any Equipment Seller adds to its generally
available standard Third Party Equipment price list or so identifies to
Buyer in a
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Quotation shall be subject to the terms and conditions of this
Agreement and any mutually acceptable additional terms and conditions
specified in writing. Seller may also recommend Third Party Equipment
that is not included in the Exhibits or provided by the Seller. Any
Third Party Equipment recommended by but not sold by the Seller is
not covered under the terms and conditions set forth in this
Agreement.
1.34 "THIRD PARTY SOFTWARE" means any Software not owned by Seller which is
included within Licensed Software.
ARTICLE 2. SCOPE OF AGREEMENT
2.01 This Agreement sets forth the terms and conditions under which Buyer
and its Affiliates may order Products from Seller and its Affiliates
and Seller and its Affiliates will supply Products to Buyer and its
Affiliates. Unless otherwise set forth herein, any reference in this
Agreement to Seller or Buyer shall be deemed to include their
respective Affiliates. Buyer may use the Products itself, or may use
the Products to provide services to others, or sell the Products
subject to the terms and conditions of this Agreement.
2.02 Unless specifically stated otherwise, all references to money or
currency shall be in U.S. dollars and all documentation,
correspondence, and communication shall be in the English language.
2.03 Seller shall meet all Buyer supply requirements set forth in Purchase
Orders in a timely manner irrespective of Purchase Orders for Equipment
from other parties; provided, however, such Buyer requirements are
reasonably consistent with Forecasts submitted by Buyer to Seller in
the manner set forth herein.
ARTICLE 3. TERM
3.01 The term of this Agreement is three (3) years from the Effective Date.
Buyer, if it fails to take delivery of a minimum of [*] or 1,000 units
during the term of this Agreement, may extend this Agreement for a
subsequent one (1) year term in order to take delivery of the minimum
Purchase commitment, by providing Seller with written notice of such
extension at least ninety (90) days prior to the end of the then
current Term.
ARTICLE 4. PURCHASE RIGHTS AND COMMITMENTS
4.01 Subject to the terms and conditions of this Agreement Seller agrees to
sell and Buyer agrees to buy Products in accordance with the pricing
and benefits set forth in Exhibit 2 of this Agreement.
4.02 Buyer agrees to place Purchase Orders for IFU's an amount totaling
[*] or 1,000 IFUs (the "Minimum Purchase Commitment") to be delivered
by December 31, 2002. In addition to the "Minimum Purchase
Commitment", Buyer also commits to an "Initial Purchase Commitment"
for an amount totaling [*] or 500 IFUs for delivery by December 31,
2000. In consideration for the Buyers Initial Purchase Commitment for
the amount of [*] or 500 IFUs for delivery by December 31, 2000,
Seller will provide an additional [*] discount ([*] per IFU) for the
first 500 IFUs. Buyer will issue confirming Purchase Orders with
specific delivery information such as Ship Date and location. The
remaining amounts of the Minimum Purchase Commitment are to be
delivered by December 31, 2002 pursuant to Purchase Orders issued by
Buyer.
[*] Confidential Treatment Requested
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4.03 Purchases of IFUs by Affiliates of Buyer count towards Buyer's Minimum
and Initial Purchase Commitments. Buyer may, without any further
liability to Seller, cancel its Minimum and Initial Purchase Commitment
upon the occurrence of any of the following events, in which case Buyer
has no obligations to pay any Initial Purchase Cancellation Fee or
otherwise:
(a) Seller materially breaches this Agreement and such breach
recurs, continues or remains uncured after thirty (30) days
written notice.
(b) Seller files a voluntary petition in bankruptcy or has an
involuntary petition in bankruptcy filed against it that is
not dismissed within forty-five (45) days of such involuntary
filing; Seller admits the material allegations of any petition
in bankruptcy filed against it; Seller is adjudged bankrupt;
Seller makes a general assignment for the benefit of its
creditors; if a receiver is appointed for all or a
substantial portion of its assets and is not discharged within
sixty (60) days after his appointment; or Seller commences any
proceeding for relief from its creditors in any court under
any state insolvency statutes;
(c) Seller fails to deliver to Buyer the quantity of Products
conforming with Product Specifications for which Buyer has
placed Purchase Orders;
(d) Buyer is enjoined from using any Products and Seller is unable
to cure the effects of such injunction pursuant to 9.02(a) or
(b) within thirty (30) days.
4.04 If during the term of this agreement or any extensions described in
Article 3.01, The Buyer does not take delivery totaling [*] or 1,000
IFUs, Buyer will pay to Seller a penalty (the "Minimum Purchase
Cancellation Fee") equal to [*] of the purchase price of the
undelivered IFUs (e.g., 1,000 IFUs minus the number of IFUs delivered,
multiplied by the applicable purchase price, multiplied by [*]).
4.05 If buyer does not take delivery totaling [*] or 500 IFU Initial
Purchase Commitment by December 31, 2000, Buyer will pay seller a
penalty (the Initial Purchase cancellation fee) equal to the [*]
discount offered in consideration for the Initial Purchase Commitment
for each IFU delivered through December 31, 2000.
ARTICLE 5. TERMS OF PURCHASE
5.01 PRICING
(a) The pricing of the Products shall be as specified in the
attached Exhibit 2 plus applicable taxes unless otherwise
agreed to between the Parties in writing or in the case of
regulatory change as specified in this section 5.01 (a). The
prices set forth in the attached Exhibit 2 for
Seller-manufactured Equipment are based on Seller's design,
manufacture, and delivery pursuant to its design criteria and
manufacturing processes and procedures in effect on the
Effective Date. If, solely as a result of the imposition of
requirements by any Federal, State or local government during
the Term, there is a change in such criteria, processes or
procedures or any material change in the Equipment caused by
such governmental requirements, the prices may be adjusted by
Seller. Any OEM Equipment or other Third Party Equipment which
have been so identified in the attached Exhibit 2 shall be
furnished subject to the applicable vendor's then-current
terms, conditions and specifications subject to Buyer's
written acceptance of such terms, conditions and
[*] Confidential Treatment Requested
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specifications.
(b) All prices listed in the Exhibit 2 and in any and all
Quotations, unless otherwise noted, are FOB Seller and are
exclusive of all freight, insurance, duties, taxes (more
specifically including but not limited to excise, sales, value
added, goods & services, and usage taxes), and any and all
other levies as might be incurred after the FOB point.
5.02 PAYMENT
(a) Equipment, Documentation and Software License Fee Payment -
Payment for Equipment, Documentation and Software License Fee
shall be due within thirty (30) days following shipment by
Seller.
(b) Annual Support Fees - Payment for Annual Support Fees shall be
due within thirty (30) days of receipt of Seller's invoice.
(c) Timely Payment - Past due amounts shall bear interest from the
expiration of such period at the rate of one and one-half
percent (1-1/2%) per month (or such lesser rate as may be
the maximum permissible rate under applicable law).
(d) Security Interest - Until the total amount due for Products
under each Purchase Order is paid in full, Seller may retain a
security interest in the Products delivered to Buyer pursuant
to such Purchase Order. Buyer agrees to promptly execute
reasonable, mutually acceptable documents which are necessary
for Seller to perfect and protect such security interest. In
addition, prior to payment in full of the total amount due
under each Purchase Order, Buyer agrees that it shall not,
without the prior written consent of Seller,
(i) sell or lease the Products (or license the Software)
subject to such Purchase Order; or
(ii) allow any liens or encumbrances to attach to the
Products subject to such Purchaser Order.
(e) Release of Security Interest - Upon payment of the amounts due
for any Product, Seller shall immediately release its security
interest in such Products and promptly file all documents
required to relieve such security interest.
(f) Taxes - Buyers price for Products as reflected in this
Agreement does not include any taxes, duties or charges of any
kind imposed by any federal, state or local governmental
entity, excluding only those taxes based solely on Seller's
net income. When Seller has the legal obligation to collect
such taxes, the appropriate amount shall be added to Buyees
invoice and shall be paid by Buyer unless Buyer provides
Seller with a valid tax exemption certificate authorized by
the appropriate taxing authority.
5.03 PURCHASE ORDERS
(a) During a quarter, Buyer will submit firm Purchase Orders to
purchase Products and Seller will deliver Products in
accordance with such Purchase Orders
(b) Products to be procured hereunder, as well as the Delivery
Date, shall be listed in a Purchase Order issued by Buyer
pursuant to this Agreement. Each Purchase Order shall
specifically reference this Agreement, and time is of the
essence in connection with the performance of each Purchase
Order. Any Purchase Order issued by Buyer to Seller for
Products shall be governed in all respects by the terms and
conditions of this Agreement. A form of Purchase Order is
attached hereto as Exhibit 6. Buyer and Seller agree that,
except for non-conflicting administrative terms as provided
below, any additional or preprinted terms or conditions on a
Purchase Order shall be null, void and of no effect.
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Each Purchase Order shall specify, in addition to other
appropriate information as may be mutually agreed upon:
i. name and address of Buyer, or Buyer Affiliate;
ii. Buyer Purchase Order number and Purchase Order date
of issuance;
iii. name and address of Seller, or as appropriate, Seller
Affiliate, which shall be an Affiliate set forth in
the Exhibit 1, that will be providing Product being
ordered;
iv. incorporation within, by reference, to this
Agreement;
v. types and quantities of Product to be furnished by
Seller as set forth in Exhibit 2 or as provided in a
Quotation;
vi. applicable prices, charges, and fees with respect to
such Product as set forth in Exhibit 2 or as provided
in a Quotation;
vii. location or facility to which Product is to be
delivered;
viii. Delivery Date of Product;
ix. billing address of the Party responsible for the
payment whether it is the Buyer, or Buyer Affiliate
to which Buyer intends to resell the Product, if any,
other information required under this Agreement to be
included in a Purchase Order;
x. proper authorization of Buyer or Buyer's Agent.
(c) Seller is obligated to accept all Purchase Orders issued by
Purchaser under this Agreement except those Purchase Orders
which are missing the material terms required by this Article
to be contained in a Purchase Order. A Purchase Order
submitted pursuant to the terms and conditions of this
Agreement, and which Seller has accepted, shall constitute an
Agreement between Buyer and the Seller. Any Purchase Order for
which Seller gives timely notice of non-acceptance if
non-acceptance is permitted under this section shall be deemed
void. The Product quantities listed on any Purchase Order
which conforms to the terms and conditions of this Agreement,
which are consistent with Forecasts including any permitted
variance to such Forecasts and which are not accepted by
Seller shall be deducted from the Initial Purchase
Commitments.
(d) Buyer may at any time request additions, alterations,
deductions, or deviations to a Purchase Order subject to the
condition that such changes and any adjustments resulting from
such changes, including but not limited to schedules and
prices, shall be mutually agreed upon, and if so agreed,
subsequently detailed in a written revision to the applicable
Purchase Order ("Change Order") signed by a designated Buyer
representative and Seller representative. Change Orders which
are processed outside of Seller's customary processing cycle
or which require additional work by Seller to comply with such
changes may be subject to a change fee provided Seller has
given Buyer a written quote for such change fee and Buyer and
Seller have mutually agreed to such change fee in writing
prior to or concurrent with execution of the Change Order. If
Buyer fails to accept the change fee, Seller has no obligation
to accept or comply with the Change Order.
(e) Purchase Orders may be issued either electronically, such as
through electronic data interchange, or via traditional manual
methods, as mutually agreed to by the Parties.
5.04 Delivery - Delivery of Products under this Agreement shall be F.O.B.
Seller's specified facilities.
All shipments are subject to the following conditions:
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(a) Partial shipments or early shipments may only be sent by
Seller if Buyer has approved such partial or early shipments
in writing and in advance;
(b) Seller shall notify Buyer, via e-mail as directed by Buyer,
when orders are shipped;
(c) Packing slips shall accompany shipment and shall include
serial numbers, when applicable, in barcode and human readable
format and shall reference Buyer's Purchase Order number;
(d) Shipment sent via truck load or less than truck load shall be
stretch wrapped on pallets with markings facing outwards; and
(e) Buyer may, at its discretion, (i) reject shipments that do not
comply with the preceding shipping requirements or (ii) apply
as a credit against amounts due to Seller, Buyer's reasonable
labor costs arising from Seller's failure to comply with the
preceding shipping requirements.
(f) Seller shall not deliver Products more than 10 days prior to
the requested and accepted Delivery Date in the Purchase Order
without the consent of the Buyer.
(g) In the absence of specific shipping instructions from Buyer,
Seller may ship-by the method it deems most advantageous;
provided however that Buyer shall not reimburse Seller for the
costs of overnight courier or other expedited shipping unless
Buyer has agreed in advance to pay such costs for such
Purchase Order in writing.
(h) Title to the Product (excluding Software) shall pass to Buyer
upon delivery to carrier subject to the Seller's security
interest in the Product, and risk of loss shall pass to Buyer
upon shipment to Buyer.
(i) Buyer shall inspect the Product upon delivery and shall advise
Seller in writing of any obvious physical defects,
discrepancies, and/or shortages observed between the Product
physically inspected and the corresponding Product shipment
packing list provided by the Seller. Buyer shall issue to
Seller a defect/discrepancy written report within ten (10)
business days of receipt of Product. If no such report is
issued to Seller within ten (10) business days the Buyer shall
be deemed to have accepted the Products as delivered.
(j) Buyer shall store all Products at the proper temperature and
other environmental conditions, as specified in the Product
Specifications, to maintain Product quality. In the event of
damage to any Product, for reason of improper storage, thereby
rendering Product unfit for intended use, Buyer shall promptly
notify Seller in writing of the facts, and shall not use such
Product except as directed by Seller.
5.05 CANCELLATION
(a) Upon written notice to Seller, Buyer may cancel all or any
part of a Purchase Order without cost to Buyer if Seller
receives written and dated Purchase Order cancellation notices
more than sixty (60) days before the requested Delivery Date.
(b) If a cancellation of a Purchase Order by Buyer does not meet
the conditions specified in Section 5.05(a) above, Seller
shall be entitled to cancellation charges, and shall make such
a claim in writing to Buyer within thirty (30) days after
receipt of a Purchase Order cancellation notice from Buyer.
Buyer shall pay cancellation charges based on the date a
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Purchase Order cancellation notice is received by the Seller,
and such cancellation charges shall not exceed the schedule
as shown below:
DAYS PRIOR NOTICE OF PO CANCELLATION ORDER CANCELLATION CHARGE
------------------------------------ -------------------------
Greater than 60 days before Delivery Date None
Greater than 30 and less than 60 days before Delivery Date 20% of the Purchase Price
Less than 30 days before Delivery Date 50% of Purchase Price
5.06 Invoicing. Each invoice shall include (a) Buyer's Purchase Order
number, (b) Seller's invoice number, (c) quantity and price of each
item shipped or services rendered, (d) applicable sales or other tax,
(e) freight charges (if applicable) and (f) final total cost.
ARTICLE 6. EQUIPMENT CHANGES
With respect to any Purchase Order issued under this Agreement,
notwithstanding any other provisions contained herein, Seller reserves the right
to make changes in the Products in whole or in part, or to substitute Products
of later design at any time prior to delivery thereof, provided that such
changes do not adversely affect performance or function or increase the cost to
Buyer and further provided that the changed or substituted Products meet or
exceed Product Specifications. Such changes do not obligate Seller to make any
changes in items of the Products previously delivered unless such changes affect
the interoperability of Products including Software in Buyer's network in which
case such changes to previously delivered Products, including Software, as are
required to maintain the interoperability and functionality of such Products
will be made at Seller's expense.
ARTICLE 7. SOFTWARE LICENSING
7.01 Buyer is granted no title or ownership rights to the Software or
Documentation, which rights shall remain with Seller or Seller's
suppliers, as appropriate. This Agreement does not entitle Buyer to the
receipt or use of, or access to, Software source code or any right to
reproduce the Software or Documentation, and Buyer agrees that it shall
not decompile, reverse engineer or otherwise attempt to gain access to
the Software source code. The obligations of Buyer under this section
shall survive the expiration or termination of this Agreement.
Notwithstanding the foregoing, Buyer may reproduce or copy Software or
Documentation for installation, back-up or archival and test purposes
and may provide such copies to Third Parties who provide installation
or maintenance services for Buyer. Buyer will notify Seller in the
event it provides copies of Software to Third Parties.
7.02 Upon Buyees payment of the applicable Software License Fee as described
in Exhibit 2.03, Buyer shall be granted a perpetual, non-exclusive,
transferable (as limited by the provisions of this Agreement),
non-assessable, unlimited-user, paid-up license to:
(a) use such features contained in the release of the Software
furnished;
(b) use and make adaptations of the Software (or any part
thereof), subject to the provisions of this Agreement,
provided that any such adaptations are created as an integral
step in the use of the Software in conjunction with a Product
and that it is not used in any other manner;
(c) make as many copies of the Software and any related
Documentation as Buyer deems
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necessary for its use, archival purposes, or test purposes
including use by Third Parties who are acting under the
control and direction of Buyer; and
(d) use the associated Software Documentation.
Buyer agrees that the license to use the Software is subject to its
continued use of and ownership of the Equipment upon which such
Software is installed and that Buyer shall have the right to sell,
pledge as security, or otherwise transfer the Equipment upon which the
Software resides and the related Software. Transferee shall be granted
a license to use the Software but no title or ownership rights to the
Software, which rights shall remain in Seller or its suppliers, as
appropriate and upon sale or transfer the terms of this Software
License shall apply to Transferee.
7.03 As a condition precedent to this Software License and to the supply of
Software by Seller pursuant to this Agreement, Seller requires Buyer to
give proper assurances to Seller for the protection of the Software.
Accordingly, all Software supplied by Seller under or in implementation
of the Agreement shall be treated by Buyer as the exclusive property,
and to the extent not publicly available, as proprietary and a trade
secret, of Seller and/or its suppliers, as appropriate.
7.04 Seller may, from time to time, issue new Software Releases, including
Major Software Releases, which shall be made available to Buyer as part
of the Annual Support Fee and without additional cost or expense to
Buyer.
7.05 The Software Releases shall be updated periodically throughout the Term
of the Agreement. Once an updated Software Release is available, it
shall be made available to Buyer subject to the terms of this
Agreement.
7.06 All standard Software must be Backwards Compatible with annual software
upgrade (which will be provided as part of the Annual Support Fee) and
with Seller Equipment in the Buyer's network.
7.07 Repair and return of Equipment is same for same based on serial number
with thirty (30) day turnaround from receipt at factory to return
shipment.
ARTICLE 8. WARRANTIES
8.01 Seller Supplied Equipment
(a) Seller warrants for a period ending fifteen (15) months from
the Ship Date, that under normal use and service the Equipment
subject to this Agreement will be free from material defects
or faulty workmanship, and shall operate in compliance with
the applicable Product Specifications. The foregoing warranty
shall not apply to items normally consumed during operation
such as, but not limited to, lamps and fuses. If Equipment is
not free from material defects or faulty workmanship or fails
to comply with the applicable Product Specification during the
warranty period, Seller will, at its option, repair, replace,
or modify the Equipment so that it is free from defects and
does comply with the applicable Product Specification. The
warranty service shall be performed at Seller's facility. If
Seller is unable to repair or modify the Equipment within a
reasonable period of time so that the Equipment conform to the
applicable Product Specification, Seller shall replace the
Equipment with Equipment that conforms to such Product
Specification. In such cases Seller does not guarantee that
equipment with like serial numbers will be returned to the
Buyer but such replacement Equipment shall meet all Product
Specifications and provide the same function as the Equipment
it replaces. Seller's sole obligation and Buyer's exclusive
remedy under the warranty provisions of this Article with
respect to Equipment shall be limited to repair, modification,
or replacement of the
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defective or non functioning Equipment or refund if Equipment
cannot be provided which complies with Product Specifications.
(b) The warranties set forth in this Article shall not apply to
any Products where the defect or non-conformance is due to:
(i) accident, alteration, abuse, misuse, or repair not
performed by Seller or Seller qualified technician,
provided that Seller will approve agreed upon
employees of Buyer and its agents as qualified
technicians;
(ii) storage other than as set forth in the Product
Specification;
(iii) failure to comply with all applicable environmental
requirements for Product as set forth in the Product
Specification, including but not limited to
temperature or humidity ranges;
(iv) performance of Product installation, maintenance,
operation, repair, relocation, or other service not
in compliance with Product Specifications, unless
such noncomplying service was performed by Seller or
on Seller's behalf;
(v) breakage, damage, alteration, or removal of any
Seller affixed seal or label located on the IFU
without the Seller's written approval. The IFU
contain no Buyer serviceable parts;
(vi) use in conjunction with a product specified by Seller
as incompatible with such Products;
(vii) any error, act, omission, vandalism, mishandling or
misuse by anyone other than Seller or Seller's
agents, employees, and subcontractors; or
(viii) where written notice of the defect has not been given
to Seller within the applicable warranty period.
(c) Buyer shall be responsible for de-installation and
re-installation of any warranty repair or replacement
Equipment. Buyer shall use qualified technicians to perform
any maintenance and/or repair to the Product during the
warranty period, where such maintenance and/or repair shall be
confined to tasks performed in accordance with Seller provided
Documentation.
(d) A return material authorization (RMA) must be obtained by
Buyer from the Seller prior to the return of any Product.
(e) Warranty replacement Equipment may be new or reconditioned to
perform as new, at Seller's option. Notwithstanding the
foregoing, the warranty period of Equipment which has been
subject to repair or replacement by Seller shall commence upon
the Delivery Date of the repaired or replacement Equipment to
Buyer and shall expire on the later of one hundred twenty
(120) days from the Delivery Date or the last day of the
original warranty period with respect to the Equipment which
was repaired or replaced.
(f) All Equipment to be repaired or replaced, whether in or out of
warranty, shall be packed by Buyer in accordance with Seller's
reasonable instructions and shall follow Seller's reasonable
repair and return policy and procedures. Buyer shall bear risk
of loss and shall pay for all transportation charges for
Equipment returned to Seller and Seller shall bear such risk
and pay for transportation charges for repaired or
replacement Equipment shipped to Buyer. Seller shall use
reasonable efforts to ship repaired or replacement Equipment
within thirty (30) days of receipt of the defective Equipment
for routine warranty repair or replacement. Seller shall
return the repaired or replaced Equipment to
Page 11 of 37
12
the Buyer by the same transport method in which the Buyer sent
the Equipment to the Seller.
(g) if the Equipment that is returned to Seller is determined by
Seller to be beyond repair and is outside the warranty period,
Seller shall notify Buyer and Seller shall upon request from
Buyer sell Buyer replacement Equipment at the then current
Agreement price between the Parties for such Equipment, or if
no such Agreement exists, at the last price paid for such
Product.
(h) Seller shall maintain an adequate inventory of spare parts to
repair and replace all Products for a period of 5 years or as
otherwise provided by law.
8.02 Third Party Equipment
(a) With respect to any Third Party Equipment furnished by Seller
to Buyer, Seller shall secure from the applicable
manufacturers such warranties and indemnities as maybe
available with respect to such Third Party Equipment, and
assign and pass through to Buyer all available warranties and
indemnities for such Third Party Equipment to the extent
legally assignable. In the event such warranties and
indemnities are not assignable to Buyer, Seller shall enforce,
if necessary, such warranties and indemnities on Buyer's
behalf. In addition to the above, Seller shall, at Buyer's
request, register Buyer with any and all Third Party Equipment
vendors (for Third Party Equipment that constitutes systems as
opposed to individual components) such that Buyer is
acknowledged as a support obligation of the Third Party
Equipment vendors and Buyer can receive and obtain product
notices directly from the Third Party Product vendors. Seller
shall produce evidence of such registration within sixty (60)
calendar days from the date Buyer requests that Seller obtain
such registration.
(b) All Third Party Equipment unless otherwise stated in this
Agreement, or in the Third Party warranties, will follow the
same repair and return procedures as noted in Article 7.01.
8.03 Software
(a) Seller warrants for a period ending fifteen (15) months from
the Ship Date, that under normal use and service the Software
shall (i) perform the necessary functionality to operate
radios in accordance with Product Specifications; (ii) shall
provide the full functionality described in the Documentation
and Product Specifications. Seller represents and warrants
that, to the best of its knowledge, any Software provided by
Seller hereunder does not contain and will not receive from
any Seller data transmission via modem or other Seller medium,
any virus, worm, trap door, back door, timer, clock, counter,
or other limiting routine, instruction, or design that would
erase data or programming or otherwise cause the Software or
Equipment to become inoperable or incapable of being used in
the full manner for which it was designed and created (but
specifically excluding locking mechanisms designed to prevent
Buyer from using those Software features or functions not
licensed to Buyer under the terms of this Agreement, referred
to as 'disabling code') including, without limitation, any
limitations that are triggered by:
(i) the Software being used or copied a certain number of
times, or after the lapse of a certain period of
time;
(ii) the Software being installed on or moved to a central
processing unit that has a serial number, model
number, or other identification different from the
central processing unit on which the Software was
originally installed; or
Page 12 of 37
13
(iii) the occurrence or lapse of any similar triggering
factor or event.
(b) In the event Seller introduces a disabling code into the
Software, Seller shall:
(i) take all steps necessary at Seller's sole cost to
test a new copy of the Software for the presence of
disabling codes;
(ii) furnish to Buyer a new copy of the Software without
the presence of disabling codes;
(iii) install and implement such new copy of the Software
at no additional cost to Buyer; and
(iv) take all steps necessary, at Seller's sole cost, to
restore any and all data or programming lost by Buyer
as a result of such disabling code. In the event
disabling codes are identified by Buyer or Seller in
the Software, Seller shall furnish to Buyer a new
copy of the Software without the presence of
disabling codes.
(c) Seller warrants all Software is Y2K compliant as set forth in
Exhibit 3.
8.04 All Products. For all Products to be sold to Buyer under this
Agreement, Seller represents and warrants that the Products and Buyer's
ownership and use of such Products will not infringe upon or
misappropriate the intellectual property rights of any party and no
party shall have the right to seek damages from Buyer or enjoin Buyer's
right to use such Products.
8.05 THE WARRANTIES SET FORTH ABOVE CONSTITUTE THE ONLY WARRANTIES WITH
RESPECT TO THE PRODUCTS PROVIDED. THEY ARE IN LIEU OF ALL OTHER
WARRANTIES WRITTEN OR ORAL, STATUTORY, EXPRESS. IMPLIED OR OTHERWISE,
INCLUDING WITHOUT LIMITATION THE WARRANTY OF MERCHANTABILITY AND THE
WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
8.06 The terms of this Article shall survive any expiration or termination
of this Agreement.
ARTICLE 9. PATENT AND COPYRIGHT INFRINGEMENT INDEMNITY
9.01 Indemnification - Seller agrees to indemnify Buyer, as set forth
herein, with respect to any suit, claim, or proceeding brought against
Buyer alleging that Buyer's use of the Equipment or Software
constitutes an infringement of any United States or foreign patent or
copyright. Seller agrees to defend Buyer, at Seller's expense, against
any such claims and to pay all settlement payments, costs and legal
expenses, including reasonable attorneys' fees, and any damages awarded
in any final judgment arising from such suit, claim or proceeding;
provided, however, that Buyer shall promptly advise Seller of any such
suit, claim, or proceeding and shall reasonably cooperate with Seller
in the defense or settlement of such suit, claim or proceeding;
provided further that Seller shall have sole control thereof; and
provided further that in those circumstances where Seller's control of
the defense may materially affect Buyer's network and operations,
Seller agrees to consult with Buyer in good faith to obtain Buyer's
input into appropriate defense methods. The obligation of Seller
hereunder with respect to any infringement claim shall not apply to
infringement claims based on:
(a) use of Product by Buyer in a manner, including combinations
with other products not provided by Seller, not contemplated
nor suggested by the Agreement or by Seller's product
documentation existing as of the Effective Date of the
Agreement;
Page 13 of 37
14
(b) use of Product by Buyer in any other combination with other
products not provided by Seller, unless Seller would otherwise
normally be liable for such a combination as a direct (or on
the basis of contribution or inducement) infringement, or
unless the products not provided by Seller are those products
normally used in connection with providing communication
services over Buyer's network, and provided that but for the
existence of such combination by Buyer, there would be no
infringement claim;
(c) use of Product in a Territory other than that for which it has
been specified in Exhibit 4 to this Agreement;
(d) modifications made by Buyer without Seller's consent;
(e) Buyer's use of Equipment supplied by Third Parties;
(f) Seller's use of specifications or designs (except
specifications or designs which are or become industry
standards or are used by Seller in a Product that is supplied
to other customers) which are supplied by Buyer to Seller for
use in Seller Products to be purchased under this Agreement
provided that but for such use by Seller there would be no
infringement claim and further provided that the Seller team
providing the custom development and the Seller employees
assigned to the Buyer account team shall use all commercially
reasonable best efforts, without violating any Third Party
confidentiality obligations, to determine whether the
requested specification or design would violate any Third
Party patent, copyright, trademark, or other intellectual
property right and provide notice to Buyer of such knowledge
as soon as reasonably possible; and
(g) The foregoing exclusions shall not apply to use of Products,
Equipment or Software in Buyer's data communications network
if Buyer and Seller have discussed the use and implementation
of Seller's Product with other products not provided by Seller
and Buyer has purchased Products for use in its network in a
manner consistent with such discussions.
9.02 Injunction - In the event that an injunction is obtained against
Buyer's use of Equipment or Software arising from such patent or
copyright suit, claim or proceeding, in whole or in part, Seller shall,
at its option, either:
(a) procure for Buyer the right to continue using the portion of
the system enjoined from use; or
(b) replace or modify the same so that Buyer's use is not subject
to any such injunction.
If, after using commercially reasonable best efforts, Seller is not able to
achieve any of the above remedies, Seller shall refund the purchase price of
Equipment upon return of the equipment from Buyer. Thereupon, neither Party
shall have any further liabilities or obligations under this Agreement.
9.03 Limitation of Liability - THE FOREGOING STATES THE ENTIRE LIABILITY OF
SELLER FOR PATENT OR COPYRIGHT INFRINGEMENT BY THE EQUIPMENT OR
SOFTWARE. THE REMEDIES CONTAINED HEREIN ARE BUYER'S SOLE REMEDY FOR ANY
CLAIM OF INFRINGEMENT OF THIRD PARTY PATENT, COPYRIGHT, TRADEMARK,
TRADE SECRET OR OTHER INTELLECTUAL PROPERTY RIGHTS.
9.04 The terms of this Article 9 shall survive any expiration or
termination of this Agreement.
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ARTICLE 10. CONFIDENTIALITY
10.01 Confidentiality - All terms and conditions of this Agreement between
Buyer and Seller are confidential and may not be disclosed to any third
party.
10.02 Release of Information - Neither Party shall, without the express
written consent of the other Party, publicly announce the existence or
terms of this Agreement or advertise or release any publicity or press
release regarding this Agreement except such disclosures that may be
required to comply with securities laws, court order or similar order
of an administrative or regulatory agency provided each Party shall use
reasonable best efforts to seek confidential treatment or other
protective orders which are available to limit such disclosures and
provide the other Party with advanced notice of such disclosures.
Notwithstanding the foregoing, either Party shall be entitled to
disclose this Agreement and its specific terms and conditions to its
financing sources, including prospective financing sources and to its
auditors, attorneys and other agents in the normal course of its
business; provided that such financing sources, auditors, attorneys and
other agents keep such information confidential.
ARTICLE 11. LIMITATION OF LIABILITY
11.01 General - THE TOTAL LIABILITY OF SELLER FOR ALL CLAIMS OF ANY KIND FOR
ANY LOSS OR DAMAGE, WHETHER IN AGREEMENT, WARRANTY, TORT (INCLUDING
NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, OR CLAIMS FOR
INDEMNIFICATION ARISING OUT OF, CONNECTED WITH, OR RESULTING FROM THE
PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENT EXCEPT FOR SELLER'S
OBLIGATION TO INDEMNIFY BUYER FOR INFRINGEMENT CLAIMS SHALL IN NO CASE
EXCEED THE TOTAL PRICE OF ALL PURCHASE ORDERS ACCEPTED UNDER THIS
AGREEMENT. NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT, NEITHER
PARTY SHALL BE LIABLE FOR LOST PROFITS, LOSS OF DATA OR COSTS OF
PROCUREMENT OF SUBSTITUTE GOODS EXCEPT AS SET FORTH IN SECTION 9.03, OR
FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, OR SPECIAL DAMAGES OF ANY
NATURE WHATSOEVER FOR ANY ACTION ARISING UNDER THIS AGREEMENT,
INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM THE USE OF
EQUIPMENT PURCHASED HEREUNDER, OR THE FAILURE OF THE EQUIPMENT TO
PERFORM, OR FOR ANY OTHER REASON. THESE LIMITATIONS SHALL APPLY
NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED
REMEDY.
11.02 Specific Exclusions - Seller shall not be responsible for any failures
or inadequacies of performance resulting from products not supplied by
Seller. Seller shall not be responsible for interference or disruption
of service caused by operation of other radio systems, lightning, motor
ignition or other similar interference. In the event Buyer utilizes
facilities or services supplied by others such as common carrier
circuits, antennas or towers, Buyer shall have the total responsibility
for the availability or adequacy of such services or facilities. Seller
shall have no liability as a result of non-performance, failures or
poor performance of the Product caused by, resulting from or
attributable to Buyer provided designs, specifications or Product
configuration requirements that have not been discussed with and
approved by Seller or failures caused by improper installation by
Buyer.
11.03 The terms of this Article shall survive any expiration or termination
of this Agreement.
ARTICLE 12. MISCELLANEOUS
Page 15 of 37
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12.01 Applicable Law - The validity, construction, and performance of this
Agreement shall be governed by and interpreted in accordance with the
laws of the State of Florida, without giving effect to the principles
of conflict of laws thereof except to the extent that any mandatory
provisions of local laws in any country take precedence over the
provisions of this Agreement and Florida State law. Jurisdiction will
reside in the federal courts in Orange County, FL. Notwithstanding the
above, neither Party shall institute a proceeding in any court or
administrative agency to resolve a dispute between the Parties before
that Party has sought to resolve the dispute through direct negotiation
with the other Party. If the dispute is not resolved after three (3)
weeks of direct negotiation, the Parties shall attempt to resolve the
dispute through mediation. If the Parties do not promptly agree upon a
mediator, either Party may request the then chief judge of the circuit
court in Orange County, Florida appoint a Circuit Mediator. If the
mediator is unable to facilitate a settlement of the dispute within a
reasonable period of time, as determined by the mediator, the mediator
shall issue a written statement to the Parties to that effect and the
aggrieved Party may then seek resolution by arbitration under
conditions and procedures provided below in section 12.02. The fees and
expenses of the mediator shall be paid one-half each by Sellers and
Buyer.
12.02 Arbitration - The parties desire to resolve disputes arising out of
this agreement without litigation. If the parties are unable to resolve
any disputes arising out of this Agreement pursuant to the provisions
of section 12.01 above, then the dispute shall be submitted to binding
arbitration in Orlando, Florida by a panel of three arbitrators
pursuant to the Commercial Arbitration Rules of the American
Arbitration Association. A Party may demand such arbitration in
accordance with the procedures set out in those rules.
12.03 Assignment - Other than as explicitly stated in this Agreement, neither
Party may assign or transfer this Agreement, or any of its rights
hereunder, without the prior written consent of the other which consent
shall not be unreasonably withheld. Buyer's consent shall not be
required for any assignment or transfer by Seller to any Third Party
for all or a part of Seller's right to receive any monies
("Receivables") which may become due to Seller pursuant to this
Agreement. Consent shall also not be required for the following
transactions if the transactions do not involve a direct competitor of
the non-assigning Party: (a) a reorganization, merger, consolidation
or other form of corporate transaction or series of transactions, (b)
the sale of all or substantially all of the assets of the Buyer or the
Seller, or (c) the acquisition of all or substantially all the
outstanding equity of the Buyer or the Seller.
Any assignment or transfer in violation of this Agreement shall be
void. Seller reserves the right to refuse to honor any assignment or
sublicense which, in the opinion of its legal counsel, would require it
to violate any United States export restriction, other law, or
regulation.
12.04 Consents - Each Party hereto represents and warrants that:
(a) it has obtained all necessary approvals, consents, and
authorizations of Third Parties and governmental authorities
to enter into this Agreement and to perform and carry out its
obligations hereunder,
(b) the persons executing this Agreement on its behalf have
express authority to do so, and, in so doing, to bind the
Party thereto;
(c) the execution, delivery, and performance of this Agreement has
been duly authorized by all necessary partnership or corporate
action and this Agreement is a valid and binding obligation of
such Party, enforceable in accordance with its terms;
(d) in the case of Buyer, that Buyer has obtained the required
licenses to use the relevant radio spectrum; and
Page 16 of 37
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(e) In the case of Seller, that Seller has obtained all necessary
government approvals for manufacture and sale of Equipment.
12.05 Counterparts and Facsimile Signatures - This Agreement may be executed
in multiple counterparts, each of which shall be deemed an original and
all of which taken together shall constitute one and the same
instrument. Facsimile signatures shall have the same effect as original
signatures, but any Party transmitting a signature by facsimile shall
promptly follow up with a copy of the same document bearing the
original signature of that Party.
12.06 Entire Agreement - This Agreement, including the Exhibits which are
attached hereto and incorporated herein, comprises all the terms,
conditions, and agreements of the Parties hereto with respect to the
subject matter hereof and supersedes all previous negotiations,
proposals, commitments, writings, publications, and understandings of
any nature whatsoever. No agent, employee, or representative of Seller
has any authority to bind Seller to any affirmation, representation, or
warranty, except as stated in this Agreement and unless such
affirmation, representation, or warranty is specifically included
within this Agreement it shall not be enforceable by Buyer or any
assignee or sub-licensee of Buyer. Buyer hereby acknowledges and agrees
that it has not relied on any representations or warranties other than
those expressly set forth in this Agreement.
12.07 Export - Buyer shall not export any Product or technical data received
from Seller pursuant to this Agreement, or release any such Product or
technical data with the knowledge or intent that such Product or
technical data will be exported or transmitted to any country or to
foreign nationals of any country, except in accordance with applicable
laws or regulations concerning the exporting of such items arising in
the U.S. or other such jurisdiction affecting the Product. Buyer shall
obtain all authorizations from the appropriate government in accordance
with applicable law prior to exporting or transmitting any such
Products or technical data as specified above. Seller will provide such
assistance as Buyer reasonably requests to obtain such authorizations.
Buyer acknowledges that the transfer of Equipment or components
thereof, and Documentation outside of Canada or the United States, may
be subject to the specific approval of the applicable Software
suppliers and other suppliers. All such approvals, if applicable, shall
be conditions precedent to any of the obligations of Seller hereunder
respecting such Equipment or component thereof and Documentation.
12.08 Factoring - Seller may, upon notice to Buyer and subject to Buyer's
consent which may not be unreasonably withheld, sell receivables to a
Third Party or Affiliate.
12.09 Force Majeure - If the performance by a Party of any of its obligations
under this Agreement shall be prevented, restricted, or interfered with
by reason of any circumstances beyond the reasonable control of that
Party, including without limitation, fire, explosion, embargoes,
government ordinances or requirements, civil or military authorities,
acts of God or of the public enemy, war, revolution, civil commotion,
acts or omissions of carriers, loss of sources of energy, power
failure, breakdown of machinery, or labor difficulties of third
parties, including without limitation, strikes, slowdowns, picketing,
or boycotts, or other causes beyond the reasonable control of the party
whose performance is affected, then the Party affected, upon giving
prompt notice to the other Party, shall be excused from such
performance on a day-for-day basis to the extent of such prevention,
restriction, or interference (and the other Party shall likewise be
excused from performance of its obligations on a day-for-day basis to
the extent such Party's obligations relate to the performance so
prevented, restricted or interfered with), provided that the Party so
affected shall use reasonable efforts to avoid or remove such causes of
non-performance and both parties shall proceed to perform their
obligations with dispatch whenever such causes are removed or cease.
With respect to labor difficulties as specified above, a Party shall
not be obligated to accede
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18
to any demands being made by employees or other personnel.
12.10 Headings - All headings used herein are for index and reference
purposes only, and shall not be given any substantive effect. This
Agreement has been created jointly by the Parties and no rule of
construction requiring interpretation against the drafter of this
Agreement shall apply in its interpretation.
12.11 Litigation Expense - The Party prevailing in arbitration, at trial, or
on appeal shall be entitled, in addition to such other relief as may be
granted, to a sum the court or arbitration may fix as reasonable
attorneys' fees, plus any associated costs.
12.12 Modification of Agreement - No addition to or modification of this
Agreement shall be effective or binding on either of the Parties hereto
unless reduced to writing and executed by the respective duly
authorized representatives of each of the Parties hereto.
12.13 [*]
12.14 Non-Waiver - The failure by either Party hereto at any time to require
performance by the other Party or to claim a breach of any provision of
this Agreement shall not be construed as affecting any subsequent
breach or the right to require the performance with respect thereto or
to claim a breach with respect thereto.
12.15 Notice - All notices required or permitted to be given hereunder shall
be in writing and shall be delivered to the address listed on the
signature page of this Agreement by (i) certified mail, return receipt
requested, (ii) nationally recognized overnight courier, or (iii) by
hand. Any notice given pursuant to this Section shall be effective five
(5) days after the day it is mailed or upon receipt as evidenced by the
Postal Service return receipt card, or courier or hand delivery written
confirmation, whichever is earlier. Either Party hereto may change its
address by a notice given to the other Party hereto in the manner set
forth above. All Purchase Orders and invoices to be delivered pursuant
to this Agreement shall be delivered via a delivery provider that
provides proof of delivery, such as certified mail, overnight mail, or
private courier company.
12.16 Registration - Product furnished under this Agreement for installation
within the United States shall, at the time of installation, comply to
the extent applicable, with the requirements of the Federal
Communications Commission's Rules and Regulations including, without
limitation, all labeling and customer instruction requirements. Product
furnished under this Agreement for installation outside the United
States shall comply with local governmental regulations, as applicable.
12.17 Relationship of the Parties - The provisions of this Agreement shall
not be construed to establish any form of partnership, agency, or other
joint venture of any kind between Seller and Buyer, nor to constitute
either Party as the agent, employee, or legal representative of the
other. All persons provided by either Party to accomplish the intent of
this Agreement shall be considered solely as the providing Party's
employees or agents and the furnishing Party shall be solely
responsible for compliance with all laws, rules, and regulations
involving, but not limited to, employment of labor, hours of labor,
working conditions, workers' compensation, payment of wages, and
withholding and payment of applicable taxes, including, but not limited
to income taxes, unemployment taxes, and social security taxes.
12.18 Severability - If any of the provisions of this Agreement shall be
declared or determined to be
[*] Confidential Treatment Requested
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19
invalid or unenforceable under applicable law and a Party deems such
provisions to be material, that Party may terminate this Agreement
upon written notice to the other Party. Otherwise such invalidity in
whole or in part, of any term, covenant, condition, or provision of
this Agreement shall not affect the validity of the remainder of such
term, covenant, condition or provision or the Agreement or render this
Agreement unenforceable, but this Agreement shall be construed as if
not containing the particular invalid or unenforceable provision and
the rights and obligations of the Parties shall be construed and
enforced accordingly.
12.19 Third Xxxxx Beneficiaries Disallowed - All covenants and agreements of
the Parties hereto are solely and exclusively for the benefit of the
Parties to this Agreement and no other person or entity shall have
standing to require performance of any such covenants and agreements,
and no person or entity shall, under any circumstances, be deemed to be
a beneficiary of such obligations.
12.20 Waiver of Breach - Failure by either Party at any time to require
performance by the other Party or to claim a breach of any provision of
this Agreement shall not be construed as affecting any subsequent
breach or the right to require performance with respect thereto or to
claim a breach with respect thereto.
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SIGNATURES
IN WITNESS WHEREOF, the Parties hereto have executed this "Agreement" as of the
"Effective Date" shown above, by their representative(s) being duly authorized
and having signed accordingly.
TRITON NETWORK SYSTEMS INC. CENTURYTEL SUPPLY GROUP, INC.
------------------------------------- --------------------------------------
Signed: /s/ Xxx Xxxxx Signed: /s/ Xxxxxx X. Xxxxxxxx
------------------------------ -------------------------------
Name: Xxx Xxxxx Name: Xxxxxx X. Xxxxxxxx
------------------------------ -------------------------------
Title: CFO Title: Vice President
------------------------------ -------------------------------
Date: 12/7/99 Date: 12/7/99
------------------------------ -------------------------------
Addresses for Notice:
Triton Network Systems, Inc.: CenturyTel Supply Group, Inc.:
0000 Xxxxx Xxxx Xxxxxx 000 Xxxxxxx Xxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000 Xxxxxx, XX 00000
Attention: Xxx Xxxxx Attention: Xxx Xxxxxxxx
---------------------------
With a copy to:
Holland & Knight LLP Xxxxx, Xxxxx & Xxxx
000 Xxxxx Xxxxxx, Xxxxx 0000 0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000 Xxxxxx, XX 00000
Attention: Louis X. X. Xxxxx, Esquire Attention: L. Xxxxx Xxxxxx, Esquire
Page 20 of 37
21
EXHIBITS
EXHIBIT 1. AFFILIATES
CENTURYTEL, INC.
LIST OF SUBSIDIARIES
(EACH 100% OWNED UNLESS NOTED OTHERWISE)
STATE OR
JURISDICTION OF
SUBSIDIARY INCORPORATION
---------- --------------
Actel Corporation Louisiana
Bloomingdale Telephone Company, Inc. (20%) Michigan
Century Cellunet of Mississippi RSA #6, Inc. Mississippi
Century Interactive Fax, Inc. Louisiana
Pivotal Communications, LLC (19.5%) Georgia
Century Telephone of West Virginia, Inc. West Virginia
CenturyTel of Adamsville, Inc. Tennessee
CenturyTel of Arkansas, Inc. Arkansas
CenturyTel of Central Indiana, Inc. Indiana
CenturyTel of Central Louisiana, Inc. Louisiana
CenturyTel of Chatham, Inc. Louisiana
CenturyTel of Xxxxxxx, Inc. Iowa
CenturyTel of Claiborne, Inc. Tennessee
CenturyTel of East Louisiana, Inc. Louisiana
CenturyTel of Xxxxxxxxxx, Inc. Louisiana
Page 21 of 37
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EXHIBIT 1. AFFILIATES (Cont.)
CENTURYTEL, INC.
LIST OF SUBSIDIARIES
(EACH 100% OWNED UNLESS NOTED OTHERWISE)
STATE OR
JURISDICTION OF
SUBSIDIARY INCORPORATION
---------- --------------
CenturyTel Holdings, Inc. Louisiana
Century Business Communications, LLC Louisiana
Century Color Graphics, LLC (65%) Louisiana
CenturyTel of Greater Wisconsin, Inc. Wisconsin
Xxxxx Equipment Corp. Nevada
Xxxxxx Company, Inc. Hawaii
CenturyTel of Colorado, Inc. Colorado
CenturyTel of Forestville, Inc. Wisconsin
CenturyTel of Xxxxxx-Readfield, Inc. Wisconsin
CenturyTel of Monroe County, Inc. Wisconsin
CenturyTel of Northern Wisconsin, Inc. Wisconsin
CenturyTel of Northwest Wisconsin, Inc. Wisconsin
CenturyTel of the Southwest, Inc. New Mexico
CenturyTel/UTI, Inc. Wisconsin
Honomach PR, Inc. Puerto Rico
Universal Contracting Corp. Wisconsin
Universal Manufacturing Corp. Wisconsin
Universal Telephone Long Distance, Inc. Wisconsin
Page 22 of 37
23
EXHIBIT 1. AFFILIATES (Cont.)
CENTURYTEL, INC.
LIST OF SUBSIDIARIES
(EACH 100% OWNED UNLESS NOTED OTHERWISE)
STATE OR
JURISDICTION OF
SUBSIDIARY INCORPORATION
---------- --------------
CenturyTel of the Northwest, Inc. Washington
Cascade Autovon Company Washington
CenturyTel of Eagle, Inc. Colorado
CenturyTel of Eastern Oregon, Inc. Oregon
CenturyTel Entertainment, Inc. Washington
CenturyTel of the Gem State, Inc. (96%) Idaho
CenturyTel of Inter Island, Inc. Washington
CenturyTel of the Midwest-Xxxxxxx, Inc. Wisconsin
CenturyTel of the Midwest-Wisconsin, Inc. Wisconsin
CenturyTel of Minnesota, Inc. Minnesota
CenturyTel of Montana, Inc. (991/6) Oregon
CenturyTel of Oregon, Inc. Oregon
CenturyTel of Paradise, Inc. Washington
CenturyTel of Cowiche, Inc. Washington
CenturyTel of Postville, Inc. Iowa
CenturyTel Telecom Service, Inc. Washington
CenturyTel Telephone Utilities, Inc. Washington
CenturyTel TeleVideo, Inc. Wisconsin
CenturyTel of Upper Michigan, Inc. Michigan
CenturyTel of Washington, Inc. Washington
CenturyTel/WORLDVOX, Inc. Oregon
CenturyTel of Wyoming, Inc. Wyoming
Eagle Valley Communications Corporation Colorado
International Communications Holdings, Inc. Delaware
MVI Corp. Oregon
Page 23 of 37
24
EXHIBIT 1. AFFILIATES (Cont.)
CENTURYTEL, INC.
LIST OF SUBSIDIARIES
(EACH 100% OWNED UNLESS NOTED OTHERWISE)
STATE OR
JURISDICTION OF
SUBSIDIARY INCORPORATION
---------- --------------
CenturyTel of the Northwest, Inc. (Cont.) Washington
Pacific Telecom, Inc. (Shell) Oregon
PTI Broadcasting, Inc. Oregon
PTI Communications of Ketchikan, Inc. Alaska
PTI Communications of Minnesota, Inc, Minnesota
PTI Transponders, Inc. Oregon
Western Services, Inc. Wyoming
CenturyTel of Pecoco, Inc. Wisconsin
CenturyTel/Cable Layers, Inc. Wisconsin
CenturyTel of Fairwater-Xxxxxxx-Alto, Inc. Wisconsin
CenturyTel of Southern Wisconsin, Inc. Wisconsin
CenturyTel/Teleview of Wisconsin, Inc, Wisconsin
CenturyTel of Idaho, Inc. Delaware
CenturyTel Interactive Company Louisiana
CenturyTel International, Inc. Louisiana
CenturyTel Investments, LLC Louisiana
CenturyTel Long Distance, Inc. Louisiana
CenturyTel MFN, Inc. Delaware
CenturyTel of Michigan, Inc. Michigan
CenturyTel Michigan Network, LLC Louisiana
CenturyTel Midwest - Michigan, Inc. Michigan
CenturyTel Mobile Communications, Inc. Louisiana
CenturyTel of Mountain Home, INC. Arkansas
CenturyTel of North Louisiana, Inc. Louisiana
CenturyTel of North Mississippi, Inc. Mississippi
Page 24 of 37
25
EXHIBIT 1. AFFILIATES (Cont.)
CENTURYTEL, INC.
LIST OF SUBSIDIARIES
(EACH 100% OWNED UNLESS NOTED OTHERWISE)
STATE OR
JURISDICTION OF
SUBSIDIARY INCORPORATION
---------- --------------
CenturyTel of Northern Michigan, Inc. Michigan
CenturyTel of Northwest Louisiana, Inc. Louisiana
CenturyTel of Odon, Inc. Indiana
CenturyTel of Ohio, Inc. Ohio
CenturyTel of Ooltewah-Collegedale, Inc. Tennessee
CenturyTel Personal Access Network, Inc. Louisiana
Wireless 2000, Inc. (20%) Louisiana
CenturyTel of Port Aransas, Inc. Texas
CenturyTel of Redfield, Inc. Arkansas
CenturyTel of Ringgold, Inc. Louisiana
CenturyTel/Ringgold IC & C, Inc. Louisiana
CenturyTel SM Telecorp, Inc. Texas
CenturyTel Telecommunications, Inc. Texas
CenturyTel/Area Long Lines, Inc. Wisconsin
SM Telecom, Inc. Texas
CenturyTel/SM, Inc. Texas
CenturyTel of San Marcos, Inc. Texas
Telecor Cellular, Inc. Louisiana
CenturyTel Security Systems, Inc. Louisiana
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26
EXHIBIT 1. AFFILIATES (Cont.)
CENTURYTEL, INC.
LIST OF SUBSIDIARIES
(EACH 100% OWNED UNLESS NOTED OTHERWISE)
STATE OR
JURISDICTION OF
SUBSIDIARY INCORPORATION
---------- --------------
CenturyTel Security Systems Holding Company, LLC Louisiana
CenturyTel Security Systems of Arkansas, LLC Louisiana
CenturyTel Security Systems of Colorado, L.L.C. Louisiana
CenturyTel Security Systems of Louisiana, L.L.C. Louisiana
CenturyTel Security Systems of Mississippi, L.L.C. Louisiana
CenturyTel Security Systems of Montana, L.L.C. Louisiana
CenturyTel Security Systems of Ohio, L.L.C. Louisiana
CenturyTel Security Systems of Oregon, L.L.C. Louisiana
CenturyTel Security Systems of Washington, L.L.C. Louisiana
CenturyTel Security Systems of Wisconsin, L.L.C. Louisiana
Lone Star Security Systems, LLC Louisiana
Texas-CenturyTel Security Systems, LLC Louisiana
CenturyTel Service Group, LLC Louisiana
CenturyTel Solutions, LLC
CenturyTel of South Arkansas, Inc. Arkansas
CenturyTel of Southeast Louisiana, Inc. Louisiana
CenturyTel of Southwest Louisiana, Inc. Louisiana
CenturyTel Supply Group, Inc. Louisiana
CenturyTel/Tele-Max, Inc. Texas
CenturyTel/Remote Access, Inc. Louisiana
CenturyTel of Lake Dallas, Inc. Texas
Page 26 of 37
27
EXHIBIT 1. AFFILIATES (Cont.)
CENTURYTEL, INC.
LIST OF SUBSIDIARIES
(EACH 100% OWNED UNLESS NOTED OTHERWISE)
STATE OR
JURISDICTION OF
SUBSIDIARY INCORPORATION
---------- --------------
CenturyTel Wireless, Inc. Louisiana
Century Cellunet of Alexandria, Inc. Louisiana
Century Cellunet B-Side Development Corp. Louisiana
Century Cellunet International, Inc. Louisiana
Cellunet of India Limited Mauritius
Century Cellunet of Louisiana, Inc. Louisiana
Century Cellunet of Michigan, Inc. Louisiana
Century Cellunet of Michigan RSAs, Inc. Louisiana
Century Cellunet of Michigan RSA #4, Inc. Louisiana
Century Cellunet of Mississippi RSA #2, Inc. Mississippi
Century Cellunet of Mississippi RSA #7, Inc. Mississippi
Century Cellunet of North Arkansas, Inc. Louisiana
Century Cellunet of Saginaw, Inc. Louisiana
Century Cellunet of South Arkansas, Inc. Louisiana
Century Cellunet of Southern Michigan, Inc. Delaware
Saginaw Bay Cellular Company Michigan
Century Cellunet of Texarkana, Inc. Louisiana
CenturyTel Wireless of Texarkana, LLC Louisiana
CenturyTel Paging, Inc. Louisiana
CenturyTel Telelink, Inc. Louisiana
Page 27 of 37
28
EXHIBIT 1. AFFILIATES (Cont.)
CENTURYTEL, INC.
LIST OF SUBSIDIARIES
(EACH 100% OWNED UNLESS NOTED OTHERWISE)
STATE OR
JURISDICTION OF
SUBSIDIARY INCORPORATION
---------- --------------
CenturyTel Wireless of Louisiana, Inc. Louisiana
Celutel, Inc. Delaware
Brownsville Cellular Telephone Co., Inc. Delaware
Celutel of Biloxi, Inc. (96.45%) Delaware
Xxxxxxx Cellular Telephone Co., Inc. (90.22%) Delaware
The McAllen Cellular Telephone Co., Inc. Nevada
Pascagoula Cellular Services, Inc. Mississippi
Pacific Telecom Cellular, Inc. Wisconsin
CenturyTel Wireless of Wisconsin RSA #8, LLC Delaware
Eau Claire Cellular, Inc. Colorado
North-West Cellular of Eau Claire, Inc. Wisconsin
Pacific Telecom Cellular of Idaho, Inc. Idaho
Pacific Telecom Cellular of 1-5 Mobilnet, Inc. Washington
Pacific Telecom Cellular of Illinois, Inc. Illinois
Pacific Telecom Cellular of Michigan, Inc. Michigan
Pacific Telecom Cellular of Michigan RSA #1, Inc. Michigan
Pacific Telecom Cellular of Michigan RSA #2, Inc. Michigan
Pacific Telecom Cellular of Minnesota, Inc. Minnesota
Pacific Telecom Cellular of Montana, Inc. Montana
Pacific Telecom Cellular of Oregon, Inc. Oregon
Pacific Telecom Cellular of South Dakota, Inc. South Dakota
Pacific Telecom Cellular of Washington, Inc. Washington
Page 28 of 37
29
EXHIBIT 1. AFFILIATES (Cont.)
CENTURYTEL, INC.
LIST OF SUBSIDIARIES
(EACH 100% OWNED UNLESS NOTED OTHERWISE)
STATE OR
JURISDICTION OF
SUBSIDIARY INCORPORATION
---------- --------------
CenturyTel Wireless Louisiana, Inc. (Cont.) Louisiana
Pacific Telecom Cellular, Inc. (Cont.) Wisconsin
UC/PTC of Wisconsin, LLC (85%) Wisconsin
CenturyTel Wireless of Wisconsin RSA #1, LLC Delaware
CenturyTel Wireless of Wisconsin RSA #2, LLC Delaware
CenturyTel Wireless of Wisconsin RSA #3, LLC Delaware
CenturyTel Wireless of Wisconsin RSA #6, LLC Delaware
CenturyTel Wireless of Appleton-Oshkosh-Neenah MSA, LLC Delaware
Universal Cellular, Inc. Wisconsin
Century Cellunet of Pine Bluff, LLC Arkansas
CenturyTel Wireless of La Crosse, LLC Delaware
CenturyTel Wireless of Wisconsin RSA #10, LLC Delaware
Universal Cellular for New Mexico RSA #4, Inc. New Mexico
Universal Cellular for Wisconsin RSA #8.1, Inc. Wisconsin
CenturyTel Wireless of North Louisiana, LLC Louisiana
CenturyTel Wireless of Shreveport, LLC Louisiana
Pacific Telecom Cellular of Alaska RSA #1, Inc. Alaska
CenturyTel of Wisconsin, Inc. Wisconsin
Hillsboro Telephone Company, Inc. (20%) Wisconsin
La Crosse Telephone Corporation Wisconsin
Spectra Communications Group, LLC (56.9%) Delaware
Telephone USA of Wisconsin, LLC (89%) Delaware
Page 29 of 37
30
Exhibit 2. PRODUCT and PRICING
2.01 EQUIPMENT
Products: All current and future LMDS (28,29 & 31GHz) OC-3 and Fast Ethernet
products offered by Triton
Price:
o Pricing is per IFU.
o In addition to the initial license fee, an Annual Support fee for
each IFU installed in the Buyer's networks will be invoiced as
discussed below at Exhibit 2, Section 2.03.
o [*] per IFU for first 500 IFUs (less [*] per IFU as described in
section 4.02)
o [*] per IFU or units 501-800
o [*] per IFU for IFUs 801-1600.
o [*] per IFU for IFUs 1601-2000.
o Mounting/Alignment brackets are [*].
o Software licensing fee [*] of Purchase Order value per year per
IFU.
[*] Confidential Treatment Requested
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31
2.02 DOCUMENTATION
All Documentation shall be available electronically or hardcopy at prices set
forth in Triton's published price book.
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32
2.03 SOFTWARE LICENSE FEE AND ANNUAL SUPPORT FEE FOR SOFTWARE AND TECHNICAL
ASSISTANCE CENTER
The IFU Link Manager, IFU Software and all other Seller provided
Software necessary to operate the Products in Buyer's network shall be provided
under this Software License. Triton will be responsible to make available
up-to-date copies of all Software as well as TAC software support (as described
in the TAC section) for all clients who are in full payment of their"Software
License Fee."
Software License Fee
o All Purchase Orders will include a Software License Fee of [*] of
the Purchase Order's Net Price for IFUs. The Software License Fee
of [*] will be prorated for the balance of the calendar year in
which the PO is issued beginning the month following the scheduled
delivery date in the PO. Example: IFU unit price of [*] with
scheduled delivery date of May 15, 2000. Calculation: [*] X [*] /
12 months X 7 Months remaining in calendar year = [*] per IFU unit
ordered for May 15, 2000 delivery.
Annual Support Fee
o The Annual Support Fee will be [*] per year of the purchase value
of all IFUs installed in the network. The annual support fee
includes "Bronze" level TAC support and all standard software
upgrades. The Annual Software Support Fee ([*] of the PO value all
IFU's) will be billed in the first quarter of each calendar year
based on the total number of IFU's in the Buyers network as of the
last day of the previous calendar year.
[*] Confidential Treatment Requested
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33
2.04 EQUIPMENT WARRANTY - TRITON SUPPLIED EQUIPMENT
(a) Standard Warranty
o The Warranties relating to Triton Supplied Equipment can be found
in Article 8.
(b) Extended IFU Warranty
o The Seller offers the following optional Extended IFU Warranty
terms:
o Additional 12 month warranty [*] of the Purchase Order
IFU net sales price.
o Extended IFU Warranty must be purchased with this Equipment
purchased in this Agreement and is incremental to the twelve months
in the Standard IFU Warranty.
o The return and replacement terms and conditions of the Standard IFU
Warranty apply to the Extended IFU Warranty.
o Extended IFU warranty relates to Equipment only. Technical support
for Software is covered separately.
[*] Confidential Treatment Requested
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34
2.05 TECHNICAL ASSISTANCE CENTER (TAC) SERVICE LEVEL AGREEMENT
TAC Services is available for all Products.
(a) Bronze Level TAC Services
o Part of net Equipment price as per this Agreement.
o Regular business hour support (08:00 to 17:00 Eastern Time;
Mondays through Fridays excluding Seller's observed holiday
schedule).
o Non-business hour paging services with maximum three (3) hour
response time.
o E-mail communication available for information inquiries with
maximum three (3) business day response.
o Per hour service charge of telephone and administrative time
to manage Triton and Third Party out of warranty Equipment:
[*].
[*] Confidential Treatment Requested
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35
2.06 CUSTOMER TRAINING
(a) AVAILABLE TRAINING COURSES
o Local IFU Installation
o Physical installation
o Alignment
o Configuration
o Integration
o Remote IFU OAM&P - Administration, Management, and Protocol
o Integrate IFUs into new and existing networks
o Configure all components and aspects of the IFU
o Perform all typical diagnostics and problem isolation to
properly identify failed or degraded operation
o Retrieve all remote administration data
o Apply security measures to ensure network integrity
o IFU Network Engineering
(b) CERTIFICATION
o Installation and Maintenance
o Training is provided at a level to certify the customer in
the Installation and Maintenance of the Triton product.
o Certification verification for each Student is supplied by
Seller.
o Customer will be able to perform all the necessary
functions to install, locally align and configure, and
integrate the IFU in an effective manner.
o Customer will be able to remotely integrate, diagnose
typical failures and degradations, and manage and
administer the IFUs in an effective, consistent manner.
(c) PRICE.
o Additional class prices are based on a course basis at
individual student or group rates, excluding travel and
facilities costs.
o Prices are to be negotiated based on course program
supplied by Seller.
o Price includes all course material and Equipment.
o Minimum number of two (2) students per class.
o Maximum number of ten (10) students per class.
o Customer Premise Training
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o Travel Expense for two (2) Seller Trainers including
lodging, meals, rental care, and airfare.
o Shipment of any training material and Equipment.
o Two (2) fully installed and operational IFUs to be used for
training purposes.
o The payment terms in net 30 days upon issuance of the
invoice.
(d) TRAINING ALLOWANCE
o During the Term of this Agreement, Buyer has the right to require
Seller to train up to five (5) Buyer employees at no charge to
Buyer. The training will be for one week per employee, and will
take place in Orlando, Florida unless another site is specified by
Seller. Buyer will be responsible for all expenses incurred by
Buyers employees related to the training.
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Exhibit 3. YEAR 2000 (Y2K) COMPLIANCE
Section 1.02 Seller warrants, with respect to Products that Seller has
undertaken commercially practicable efforts to ensure, to the extent within its
reasonable control, that when such Products are properly used in accordance with
the applicable Product Specifications, then both before and after 01 January
2000 such Products will accurately receive, provide, and process date and date
dependent data (including calculating, comparing, and sequencing) from, into,
and between the twentieth (20th) and the twenty-first (21st) centuries through
to the year 2036, including the years 1999 and 2000, and leap year calculations.
Seller further warrants during Product warranty period, as specified in this
Agreement, Product shall function without any material, service affecting,
non-conformance to the applicable Product Specifications as a consequence of
date and date dependent data, to the extent that other software used in
combination with Seller's Products sold or licensed hereunder is also Year 2000
Compliant and properly exchanges date and date dependent data with Seller's
Products. If Product fails to so function as set forth herein, the Parties agree
to negotiate a commercially reasonable solution. Any modification to Products
not performed by Seller, other than with respect to Modifiable Software, shall
void this warranty.
Page 37 of 37
