EXHIBIT 10.2
Amendment No.7
AMENDMENT NO. 7 TO THE AMENDED AND RESTATED
SYSTEM EQUIPMENT PURCHASE AGREEMENT
THIS AMENDMENT NO. 7 (this "Amendment" or "Amendment No. 7") is made and
entered into by and between CRICKET COMMUNICATIONS, INC., a Delaware corporation
("Owner") and LUCENT TECHNOLOGIES INC., a Delaware corporation ("Vendor"),
collectively (the "Parties") and is effective as of the 1st day of January, 2005
(the "Amendment No. 7 Effective Date").
RECITALS
A. WHEREAS, Owner and Vendor are parties to that certain Amended and
Restated System Equipment Purchase Agreement, dated as of June 30, 2000 (the
"SEPA"), as amended by Amendment No. 1, effective March 22, 2002 ("Amendment No.
1"), Amendment No. 2, effective March 22, 2002 ("Amendment No. 2"), Amendment
No. 3, effective March 22, 2002 ("Amendment No. 3"), Amendment No. 4, effective
September 10, 2002 ("Amendment No. 4"), the Letter Agreements dated September
30, 2002 and December 30, 2002 (the "Letter Agreements"), Amendment No. 5,
executed on September 23, 2003 ("Amendment No. 5"), and Amendment No. 6
effective February 4, 2004 ("Amendment No. 6"); The SEPA, Amendment Nos. 1-6 and
the Letter Agreements are collectively referred to herein as (the "Contract" or
"SEPA").
B. NOW, THEREFORE, incorporating the Recitals herein, and for other good
and valuable consideration, the receipt and legal sufficiency of which are
hereby acknowledged, and intending to be legally bound hereby, Vendor and Owner
agree as follows:
1. EFFECTIVE DATE
This Amendment shall become effective as of the Amendment No. 7 Effective Date.
2. SCOPE
Except as expressly modified herein, the terms of the SEPA, including all
attachments, shall remain in full force and effect. To the extent there may be
any conflicts as related to the subject matter herein, the documents shall
control and take precedence in following order: (a) this Amendment; (b) the
SEPA; and (c) attachments to the SEPA.
All capitalized terms not otherwise defined herein shall have the same meaning
and effect as in the SEPA. In the event of any conflict between the terms of
this Amendment and the SEPA, the terms and conditions of this Amendment shall
apply with respect to the Products and Services to be offered hereunder.
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Amendment No.7
3. AGREEMENT MODIFICATIONS
a. Section 1.1- "Contract Term" - of the SEPA, as amended by Amendment No.
5 which extended the Contract Term of SEPA to March 31, 2005, shall be and is
hereby further amended by replacing March 31, 2005 with "March 31, 2008."
b. Section 1.1 - "Annual Release Maintenance Fee" - The definition of
"Annual Release Maintenance Fee" (sometimes also referred to as "ARMF") in the
SEPA is hereby deleted and replaced in its entirety with the following:
"Annual Release Maintenance Fee" - shall mean those fees specified in
Section 6 as incorporated into the SEPA pursuant to Section 3(c) of this
Amendment No. 7 to be paid by Owner to Vendor and that entitle Owner to i)
receive all Software Enhancements, Software Maintenance Releases, Software
Combined Releases, Software Updates and Software Upgrades for all Software
in which Owner holds a RTU License to use such Software, ii) receive
technical support for Owner's wireless Equipment purchased from Vendor via
Vendor's AMPS/PCS Wireless Network Remote Technical Support Advantage ("
Mobility RTSA") statement of work, attached hereto as Attachment A, iii)
receive technical support for Owner's INS data products (CBX and PSAX)
purchased from Vendor via Vendor's RTS Advantage NE/EMS ("INS RTSA")
statement of work as previously incorporated into the SEPA via Amendment
No. 6, and iv) receive up to [ * * * ].
c. New Section 6 - ARMF. The original Section 6 of the SEPA was deleted in
its entirety by Amendment No. 5. The following new Section 6 shall be hereby
added to the SEPA:
"SECTION 6. ARMF
6.1 ARMF Invoicing/Credits/Payment - The total annual charge for
ARMF beginning with calendar year 2005 shall be [ * * * ] currently in
Commercial Service in Owner's network for Mobility RTSA (including without
limitation all Software Enhancements, Software Maintenance Releases,
Software Combined Releases, Software Updates and Software Upgrades) based
on Owner's existing network consisting of 19 operational ECPs), plus [ * *
* ] annually for INS RTSA as allocated per elements as described in
Schedule 1 "2005 Annual RTS-A Fees for CBX and PSAX" of this Amendment No.
7. Vendor shall invoice Owner quarterly on the first day of each calendar
quarter. The ARMF due for the first calendar quarter of 2005 shall be
invoiced by Vendor upon execution of this Amendment No. 7. Owner's payment
of the first quarterly invoice and any subsequent quarterly invoices,
shall take into account any credits due Owner for i) payments made under
ARMF prior to the execution of this
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Amendment No.7
Amendment for which the benefit period includes any portion of calendar
2005 and ii) the release of any remaining a) Deposit Amount related to
RS&R and b) RES Deposit related to RES. If such credits due Owner exceed
the ARMF amount due for the first calendar quarter of 2005, such excess
shall be carried forward and applied against the ARMF for the second
calendar quarter of 2005. Should an ARMF be due for the first calendar
quarter of 2005 (after application of the preceding credits), then Owner
shall promptly make payment to Vendor for receipt within 5 days of Owner
receiving such ARMF invoice. Future payments shall be subject to the
existing payment provisions of the SEPA.
6.2 ARMF Adjustments - ARMF for ECPs added to existing Markets shall
be [* * *]. ARMF for ECPs added to new Markets (Markets deployed
subsequent to January 1, 2005) shall be [ * * * ]. ARMF for ECPs added
during a calendar quarter shall be billed and due in subsequent calendar
quarters after Owner places such ECP in Commercial Service. ARMF for ECPs
removed from operation in a calendar quarter shall be removed from the
ARMF to be billed in subsequent calendar quarters after such ECP is
removed by Owner from Commercial Service." Additions or deletions of
PSAX/CBX elements shall be adjusted in the subsequent quarter following
such addition or deletion at the prices per element as described in
Schedule 1 attached to this Amendment No.7.
d. ARMF Exhibits - Exhibit B-5, Exhibit B-6 and Exhibit N of the SEPA
shall be replaced in their entirety with Vendor's Mobility RTSA (attached hereto
as Attachment A) and INS RTSA (previously incorporated into the SEPA via
Amendment 6).
e. Section 13.1 - RTU License. The first sentence of Section 13.1 shall be
deemed replaced with the following new sentence: "Upon delivery of, and payment
for, Software, the Owner is hereby granted a personal, non-exclusive, fully
paid-up, [ * * * ] right to use license for the Software delivered ("RTU
License"), to operate the specific Equipment, processor or product line for
which the licenses to use the Software are initially granted, or temporarily on
any comparable replacement if any such Equipment, processor or product line
becomes inoperative."
f. Section 14.1.1 - Software Upgrades, Software Maintenance Releases,
Software Enhancements and Combined Releases. The words "calculated pursuant to
Exhibit B-5" shall be deemed deleted from the first sentence of Section 14.1.1
of the SEPA. Also, the second sentence of Section 14.1.1 shall be deemed
replaced with the following: [* * *]
g. Section 18.6 Warranty Claim Procedures, subsection (b). Section 18.6(b)
language shall be deemed deleted and replaced with the following:
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Amendment No.7
"The Vendor agrees to commence work pursuant to any Warranty as soon as
practicable, but the Vendor shall use reasonable efforts to commence such
Work in no event later than [ * * * ] hours after notification of any
claim under any Warranty and to use its best efforts to cure such Defect
and Deficiencies promptly. The foregoing notwithstanding, in the event the
Owner reasonably determines that an emergency situation exists, the Vendor
shall [ * * * ] after notification by the Owner. If in an emergency
warranty service situation, the Owner and/or the Vendor determines that
due to the particular circumstances, on-site technical assistance is
necessary, the Vendor shall dispatch emergency service personnel to the
site in accordance with the terms of the Contract. The Vendor agrees to
commence work on all Products, Services, or any Defects and Deficiencies,
as the case may be, materially impairing service to subscribers, System
performance, billing, administration and/or maintenance as soon as
practicable, but in no event later than [ * * * ] after notification of
such defect, and the Vendor shall cure such defect as promptly as
practicable."
h. Section 18.7 - Technical Assistance. Section 18.7 shall be deemed to
reference to [the Mobility RTSA (Attachment A of this Amendment No. 7) and the
INS RTSA incorporated into the SEPA per Amendment No. 6], instead of to Exhibit
N.
i. Section 8.4 and 8.5 of the SEPA - shall be modified as follows with
respect to the RS&R Repair Pricing, RS&R Deposit Amount and RES Deposit.
Owner's obligation to maintain the Deposit Amount [* * *] and RES
Deposit [* * *] shall cease as of [* * *], provided however Vendor
reserves the right to re-institute such deposits in the future should
Owner's financial condition warrant such re-instatement. Furthermore,
Vendor's pricing to Owner with respect to [* * *].
RES will be extended for the remaining Contract Term under the terms of
the current RES Statement of Work and at the current rate of [* * *],
starting [* * *].
j. Exhibit B "Discount Structure for Cricket Communications" shall be and
is hereby amended by adding the following new paragraph to Exhibit B as follows:
Effective as of January 1, 2005:
- 5ESS discounted pricing shall be [* * *] off Vendor's standard list
price then in effect.
- SCO pricing will be [* * *]
- Other bulk offers to purchase Products will be considered for
special discounts on a per order basis.
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Amendment No.7
- Model pricing for BTS Mod Cells shall include BTS Mod Cell 3.0
pricing as follows:
- New Mod Cell 3.0, 3S, F1, 64Channel Elements, with 4 hour
battery backup shall be at [* * *].
- New Mod Cell 3.0 Xxxxxxx, 0X, X0/X0, 64 Channel Elements, with
4 hour battery backup shall be at [* * *].
- New Carrier Upgrade pricing shall be as follows:
- Carrier Upgrade to F2 or F3, with 64 Channel Elements
shall be at [* * *].
- Carrier Upgrade to F4 (growth cabinets) with 64 Channel
Elements shall be at [* * *].
Effective retroactively as of December 1, 2004 - Owner's charge of [* * *]
for feature activation shall be deleted for all future carriers deployed
in Owner's network.
k. [* * *].
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Amendment No.7
IN WITNESS WHEREOF, the authorized representatives of the parties hereto have
executed this Amendment No. 7 on the dates set forth below.
OWNER VENDOR
CRICKET COMMUNICATIONS, INC. LUCENT TECHNOLOGIES INC.
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxxx Xxxx
Name: Xxxxx Xxxxxx Name: Xxxxx Xxxx
Title: EVP & COO Title: Sales Director
Date: 02/01/2005 Date: 01/26/2005
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Amendment No.7
ATTACHMENT A
TO
AMENDMENT NO. 7
MOBILITY RTSA SOW
PAGES 1 - 29
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LUCENT TECHNOLOGIES
AMPS/PCS WIRELESS NETWORK
REMOTE TECHNICAL SUPPORT ADVANTAGE
(RTSA)
PREMIUM LEVEL SERVICE WITH 100 CTA HOURS PER
ECP
[EFFECTIVE JANUARY 1, 2005]
FOR
CRICKET COMMUNICATIONS, INC.
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TABLE OF CONTENTS
1 INTRODUCTION.............................................................. 4
2 TERM/DURATION............................................................. 4
3 REMOTE TECHNICAL SUPPORT ADVANTAGE........................................ 4
3.1 LUCENT RESPONSIBILITIES............................................. 5
3.2 REMOTE TECHNICAL SUPPORT (RTS) DESCRIPTION.......................... 5
3.2.1 Lucent Tasks/Deliverables..................................... 5
3.2.2 RTS Performance Objectives.................................... 5
3.2.3 Definition of Severity Levels................................. 6
3.2.4 Definition of Respond, Restore and Resolve.................... 6
3.2.5 Respond, Restore and Resolve Objectives....................... 7
3.2.6 Customer Service Delivery Feedback/Escalation................. 7
3.3 CUSTOMER TECHNICAL ADVOCATE SUPPORT................................. 7
3.3.1 Description................................................... 7
3.3.2 CTA Tasks/Deliverables........................................ 8
3.4 BASE RELEASE SOFTWARE AND SERVICE (BRSS)............................ 9
3.4.1 Updates and Upgrades.......................................... 9
3.4.2 License Audit................................................. 11
3.4.3 Distribution.................................................. 11
3.4.4 Software Delivery............................................. 11
3.4.5 Pre-Installation Support...................................... 11
3.4.6 Installation Support.......................................... 12
3.4.7 Retrofit Support.............................................. 12
3.5 SOFTWARE SUPPORT POLICY............................................. 12
3.5.1 Normal Progression/Skipping................................... 12
3.5.2 Major Release Life Cycle Ratings.............................. 13
3.5.3 Support Availability for Different Software Ratings*.......... 14
4. CUSTOMER RESPONSIBILITIES................................................ 15
4.1 CUSTOMER RESPONSIBILITIES CONCERNING LUCENT WEB SITE ACCESS......... 15
5. EXCLUSIONS............................................................... 16
6. ASSUMPTIONS/ELIGIBILITY FOR RTSA......................................... 17
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6.1 EQUIPMENT MANUFACTURED, AND INSTALLED BY OR PURCHASED FROM LUCENT... 17
6.2 OTHER SITUATIONS.................................................... 18
6.3 CUSTOMER'S WARRANTIES OF AUTHORITY.................................. 18
6.3 SUPPORT FOR RELOCATED SOFTWARE...................................... 18
6.5 COMMENCEMENT OF RTSA................................................ 19
6.5.1 General....................................................... 19
6.5.2 First System.................................................. 19
6.5.3 Additional Systems............................................ 19
6.5.4 Addition of Existing Systems.................................. 19
7 GENERAL TERMS........................................................... 19
7.1 CONDITIONS.......................................................... 19
7.2 CHANGE MANAGEMENT................................................... 20
8 PRICING NOTES............................................................ 20
8.1 DETERMINATION OF PRICING UNITS...................................... 20
8.2 OTHER PRICING CONDITIONS:........................................... 20
9 PRICING.................................................................. 22
9.1 MAINTAINED PRODUCTS FOR RTS AND BRSS................................ 22
9.2 Maintained Products............................................. 22
9.1.2 Optional Feature Support...................................... 22
9.2 REMOTE TECHNICAL SUPPORT............................................ 22
9.2.1 Pricing Units................................................. 23
10 GLOSSARY................................................................. 23
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1 INTRODUCTION
This Statement of Work (SOW) describes the deliverables, parties' respective
responsibilities and other conditions applicable for the provision of Remote
Technical Support Advantage (RTSA) by Lucent Technologies Inc. ("Lucent" or
"Supplier") for Cricket Communication, Inc. ("Customer" or "Owner").
Lucent's RTSA service consists of remote technical support service (RTS) and
Software Update and Software Upgrade service (BRSS) as further described in this
SOW, collectively referred to as the "Services".
Performance of the services described in this SOW shall be governed by the terms
of that Amended and Restated System Equipment Purchase Agreement between Lucent
Technologies Inc. and Cricket Communications, Inc. ("SEPA" "Contract" or
"Agreement"). In the event of a conflict between the terms of the Agreement and
this SOW, the terms of this SOW shall prevail with respect to the subject matter
herein. No obligation to provide a service described herein shall arise unless
an order for the service, incorporating the terms of an agreed SOW, has been
placed by Customer under a signed governing agreement in place between Customer
and Lucent and accepted by Lucent.
Lucent's performance of the Services described below is subject to the
assumptions, exclusions and other conditions identified in this document.
DESCRIPTION OF SERVICES
2 TERM/DURATION
"TERM" shall refer collectively to the Initial Term and Renewal Terms as
described below.
INITIAL TERM: The "Initial Term" will begin on January 1, 2005 and will continue
until March 31, 2008. Customer shall place a purchase order to cover the entire
Initial Term.
RENEWAL TERM: For as long as Lucent continues to offer RTSA as described in this
SOW, Customer's RTS and BRSS programs will automatically renew for successive
one-year terms (each a "Renewal Term") unless either party gives written notice
of intent to not renew no later than sixty (60) days prior to the expiration of
the Term then in effect. The prices and terms of service for a Renewal Term
shall incorporate any modifications of which Lucent has provided Customer at
least ninety (90) days written notice prior to the start of the Renewal Term.
Customer shall place a confirmatory purchase order for each Renewal Term prior
to the first day of that Renewal Term.
3 REMOTE TECHNICAL SUPPORT ADVANTAGE
Lucent's RTSA service provides Remote Technical Support (RTS) and Software
Patches, Software Updates, and Software Upgrades (BRSS), as available, for the
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Lucent commercially deployed Maintained Products listed in Section 9.1 that are
made generally available during the subscription period.
The products for which the service is purchased are sometimes referred to in
this SOW as "Maintained Products". The Maintained Products are the products of
the types listed in Section 9.1 of this SOW that are commercially deployed and
operational in Covered Systems (as that term is defined in Xxxxxxx 00 -
Xxxxxxxx).
XXXX is only applicable in the 50 United States and Canada.
3.1 LUCENT RESPONSIBILITIES
3.2 REMOTE TECHNICAL SUPPORT (RTS) DESCRIPTION
Lucent's RTS service provides remote access to Lucent engineers in support of
product-related questions, and diagnostic procedures to restore and resolve
network troubles.
SUPPORT LEVELS:
The RTS is offered as a Premium support service, which provides access to remote
engineers 24 hours a day, 7 days a week.
3.2.1 LUCENT TASKS/DELIVERABLES
Lucent shall:
- Log Customer-initiated request for RTS (Assistance Request (AR)).
Provide Customer with AR tracking number.
- Assign AR to a Lucent engineer to serve as single point of contact
to facilitate communication and enable rapid restoration of service
or technical assistance.
- Respond to Customer request for product and technical information
reasonably required to assist use of the Maintained Products.
- Troubleshoot network problems, via phone, VPN, or modem connection,
down to Maintained Product component level, or sufficiently to
exclude Maintained Products as the root cause.
- Restore Maintained Products to operational status by identifying
defective hardware components or providing Software and/or
procedural workarounds, where feasible. All Software workarounds are
licensed subject to the same terms, restrictions, and limitations as
contained in the licenses under which the Software was acquired.
- Provide 24x7x365 access to product specific Customer support content
of the Xxxxxx.xxx web site. Customer support content may include
technical product support information, subscription services, and
other self-help facilities, as well as ability to submit ARs and
check the status of ARs online.
3.2.2 RTS PERFORMANCE OBJECTIVES
The RTS respond, restore, and resolve performance objectives, established by
Lucent, are dependent on the severity level of the request as reported by
Customer to the Technical Assistance Center ("TAC") via telephone.
For the Restore & Resolve objectives to apply, the problem must be reproducible
at either
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Lucent's location or on Customer's system, verifiable by Lucent. If during
analysis Lucent determines the severity level of the problem as reported by
Customer to be inaccurate, Lucent reserves the right to request a severity
re-assignment. In these instances, i) Lucent will notify Customer and ii) a
consensus decision will be reached and a mutually agreed upon severity level
will be assigned.
Lucent will use its reasonable efforts to meet the applicable targets set forth
in Section 3.2.4 within the stated time or less in 90% of the cases, determined
annually. For purposes of determining Lucent's performance against such
objectives, a measurement shall be taken once annually after the end of a
calendar year for which Customer has paid for the RTSA Program, based on ARs
resolved during the measured year. The foregoing measurements shall only be
taken with respect to a complete calendar year for which Customer has paid the
applicable annual fee.
3.2.3 DEFINITION OF SEVERITY LEVELS
Severity Levels are defined as the condition of the system when Customer submits
an AR. Severity Levels are defined below.
- XXXXXXXX XXXXX 0 [* * *].
- SEVERITY LEVEL 2 [* * *].
- SEVERITY LEVEL 3 [* * *].
- SEVERITY LEVEL 4 [* * *].
3.2.4 DEFINITION OF RESPOND, RESTORE AND RESOLVE
- RESPOND means a Lucent Customer Support Engineer has contacted
Customer regarding a particular AR. In the event Lucent is
unable to contact the specific Customer contact designated on
the AR after three (3) attempts, then Lucent will attempt to
contact the Cricket NOC. Prior to the AR being closed Lucent
will contact Customer in writing.
- RESTORE means that the problem is remedied sufficiently to
return the product or major feature to operational status.
Restore may mean that a temporary fix has been provided to
temporarily correct the problem, or that a workaround has been
implemented, or a method of restoration has been made
available to Customer.
- RESOLVE means that a solution has been provided to address the
issue. This may occur simultaneously with Restore, unless the
Restore is by means of a workaround suitable only for
temporary use and Lucent determines that a more suitable
permanent solution can feasibly be provided.
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3.2.5 RESPOND, RESTORE AND RESOLVE OBJECTIVES
RTS performance objectives for currently supported Maintained Products are
outlined in the following tables:
OBJECTIVES(2) PREMIUM COVERAGE
------------- ----------------
RESPOND [* * *]
RESTORE [* * *]
RESOLVE [* * *]
[* * *]
[* * *]
[* * *]
[* * *]
[* * *]
3.2.6 CUSTOMER SERVICE DELIVERY FEEDBACK/ESCALATION
Customer may escalate a problem or provide feedback or complaints on the RTSA
service that is being delivered or has been delivered. RTSA Service Delivery
Feedback is for tasks and provision of deliverables specifically defined in this
document. Customer may initiate escalation or feedback by calling the TAC
number, 1-866-LUCENT8 and ask to create a Delivery Feedback Assistance Request
to initiate the process.
3.3 CUSTOMER TECHNICAL ADVOCATE SUPPORT
3.3.1 DESCRIPTION
Lucent will provide the Customer Technical Advocate (CTA) for Customer technical
consultation and issue escalation. This support applies to Software in
Customer's Covered System. CTA Support services are advisory only and no
pre-determined specific results are assured.
Customer will be entitled to a set number of included hours per year of
consulting services of the types listed in Section 3.3.2. The consulting
services will be performed by CTAs and/or other Lucent consultants to whom a CTA
refers the matter. The included hours are for remote assistance during the
consultant's normal working hours at the consultant's normal place of business.
In cases where RTSA is provided for less than one calendar year (e.g. ECP is
deployed or removed from operation as a Pricing Unit), consulting hours are
allocated on a monthly basis as noted in Section 0.Xx such cases where the ECP
is deployed less than a full calendar year, unused CTA hours may not be carried
over from month to month. In no case may unused hours be carried over to
subsequent years. CTA support shall be consistent with that provided to Customer
in prior years throughout the term of the Agreement.
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Additional hours and/or on-site consultation may be provided based on
availability at Lucent's then standard rate. Such included hours are available
for consulting with respect to Software included in the Covered System only
(e.g., they may not be used for 3rd Party IS-634 efforts, which if performed
will be charged at Lucent's then standard rate or other agreed price.)
3.3.2 CTA TASKS/DELIVERABLES
3.3.2.1 CTA FACILITATION AND REVIEWS
FOR PREMIUM SERVICE WITH 100 HOURS OF CTA SUPPORT PER ECP:
CTAs will monitor all ARs, and will seek to expedite the closure of a limited
reasonable number of those ARs that Customer identifies as top priority or that
Customer escalates in a user group (e.g., CEMUG) or reported in quarterly
conference calls.
3.3.2.2 TECHNICAL CONSULTING AND KNOWLEDGE TRANSFER SUPPORT
The elements of Technical Consulting and Knowledge Transfer Support are
summarized in this section. Requests for this support shall be made to
Customer's CTA, if any, otherwise to Lucent's Sales Organization serving
Customer. If Customer requests support outside of normal business hours (8 am -
5 pm local time where CTA is located), or in excess of the applicable limit,
then, except for activities directly and necessarily required to diagnose and/or
implement a warranty fix for which Lucent is responsible, Lucent reserves the
right to xxxx Customer for such services.
3.3.2.2.1 CUSTOMER ADVOCACY
While the RTS program is in effect, there will be one or more CTA designated who
will:
- Serve as a single point-of-contact to co-ordinate resolution of
multi-product issues and significant Customer issues across
organizations.
- Manage executive escalations and set up executive meetings, if
needed.
- Conduct conference calls(s) with Customer at agreed-upon times to
review their ARs and address Customer support issues.
- Identify and escalate Customer issues, track key Customer
commitments and represent Lucent at joint Customer and Lucent
conference calls and report card/metric reviews as necessary.
3.3.2.2.2 TECHNICAL INITIATIVES AND PROJECTS
The Lucent consultant may, at Lucent's discretion, assist the Customer in a
special initiatives or projects with a duration of no more than eight hours.
Under no circumstances can that project or initiative be an existing Lucent
service. If Lucent agrees to assist the Customer in that project/initiative, the
consultant will act as the primary point of contact and interface with all other
Lucent teams, as appropriate.
Some of the activities are:
- The CTA will work with the Customer to address technical issues
associated with major, multi-customer Lucent offers (Customer
Technical Initiatives). The CTA will interface to Program Management
and development. Some Customer technical initiatives might be an
add-on service available at an additional price.
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- Support Customer specific projects such as network reviews.
3.3.2.2.3 CAPACITY AND SW PLANNING
The Lucent consultant may assist the Customer with capacity planning and help
identify the impact of new Software releases on system configuration and
capacity as follows:
- Understand control mechanisms and critical action/recovery paths for
system components.
- Understand capacity issues and how to measure and manage current
capacity.
- Provide explanation of related technical matters (i.e., critical
triggers, smrg, TFC30 for the 5E and the SCME guidelines).
- Keep the Customer abreast of the new Software releases and Software
features. The Lucent consultant may also advise the Customer on each
features' capabilities.
3.3.2.2.4 CUSTOMER EDUCATION
The CTA will facilitate training/tele-training and co-ordinate specialized
training to the Customer. This does not include teaching classes.
3.4 BASE RELEASE SOFTWARE AND SERVICE (BRSS)
3.4.1 UPDATES AND UPGRADES.
During any period for which Customer has paid the applicable BRSS Program fees,
or for which the BRSS Program is provided at no additional charge under the
terms of this SOW, Supplier will provide to Customer all Software Updates and
Software Upgrades that are made generally available by Supplier during such
period. Supplier will notify Customer of the availability of each Software
Update and Software Upgrade. Such notifications shall include a description of
the content of the Software Update or Software Upgrade to be provided by
Supplier including a list of all new Optional Software Features. Supplier shall
also notify Customer of preconditions (e.g., additional hardware or software
prerequisites) for installing such Software Update or Software Upgrade and/or
use of any such new Optional Software Features. The fulfillment of all such
preconditions shall be the responsibility of the Customer.
Subject to the provisions of Section 3.5 of this SOW, Supplier shall also update
documentation to incorporate new or revised operating procedures resulting from
issuance of Software Updates and Software Upgrades.
Software Updates and Software Upgrades shall be individually warranted, as
provided in the Software warranty provisions of the governing Agreement, and
Customer shall have a right to possess and use Software Updates and Software
Upgrades, as provided in the Software licensing provisions of this SOW. Failure
to pay any applicable BRSS fees for Software Updates and Software Upgrades shall
not void the license granted under this SOW for Licensed Software, including
prior Software Updates and Software Upgrades properly in Customer's possession,
for which Customer has fully paid all applicable BRSS fees. Customer
acknowledges that if Customer fails to continue to pay BRSS
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fees, Customer shall not receive any permanent warranty fixes embodied in
subsequent Software Updates and Software Upgrades, but nothing herein shall be
deemed to deprive Customer of any program corrections, work around procedures or
other temporary or permanent fixes to which Customer may be entitled in respect
of Software warranty defects noticed to Lucent during the applicable warranty
period. Provided Lucent has delivered a temporary fix to Restore Customer's
Maintained Products, Lucent shall not be deemed to be in breach of its Software
warranty obligations under this SOW with respect to an identified defect, if
Lucent has furnished or intends to furnish, in a timely manner, a permanent
warranty fix in a Software Update or Software Upgrade available to Customer, and
Customer shall have no claim for refund or credit under such warranty provisions
in such circumstances. Nothing herein shall excuse Lucent of any obligation
Lucent may have under applicable warranty provisions or RTS Program to use all
reasonable efforts to effect such a temporary fix pending a permanent fix.
BRSS entitles Customer to use the features and functionality delivered with
Software Updates and Software Upgrades, including, but not necessarily limited
to:
- Software to support system improvements, including performance
and operations
- Compatibility of existing features with the new release
- New base/standard software features and functionalities
- Platform for Optional Software Features and optional hardware
features
- Release compatibility with Translations Entry Assistant
- Permanent and/or temporary fixes of problems in prior Software
releases
BRSS does not entitle Customer to use Optional Software Features resident in a
Software Update or Software Upgrade, except to the extent that Customer has
separately paid the applicable license fees for the use thereof. Nothing in this
SOW shall be deemed to require Lucent to make any new specific software features
and/or enhancements of Software available as part of Lucent's Software Updates
or Software Upgrades. Any Software Updates or Software Upgrades that may be
provided by Supplier under the BRSS Program are provided as available. Lucent
shall have the sole right to determine whether a new functionality shall be a
new base Software feature or functionality or an Optional Software Feature.
Lucent reserves the right to determine the number of Software Updates and
Software Upgrades that will be issued each calendar year for each type of
Software covered by BRSS. Lucent does not commit that any Software Updates or
Software Upgrades will ultimately be released, made generally available and,
therefore, provided during the term that Customer subscribes to the BRSS
Program. Furthermore, Lucent does not warrant that any specific features or
functionality will be included in any Software Updates or Software Upgrades that
may be provided under the BRSS prior to the time that a Software Update or
Software Upgrade is released and made generally available to all BRSS
subscribers. Except as otherwise set forth in the SEPA, nothing herein shall be
deemed to deny Lucent the right to discontinue products or Software in
accordance with its standard policies and/or the terms of this SOW as applicable
Lucent's current program for Software Upgrades is described in Section 3.5.
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3.4.2 LICENSE AUDIT
Lucent shall have the right to audit Customer's use of the Licensed Materials
and/or install self- auditing software which may be activated and monitored
remotely (an "Audit"), upon notice to Customer. Lucent may perform such Audit at
any time. Customer and its employees, agents and representatives will cooperate
with Lucent and take such action to facilitate each Audit promptly (in no case
later than five business days) after Lucent's notice to perform an Audit.
Software provided to Customer under this SOW may contain optional features,
which are separately licensed and priced. Customer shall not activate such
optional features without written authorization from Lucent and Customer's
payment of the appropriate license fees. If Customer nevertheless activates any
optional features without Lucent's authorization, Customer shall notify Lucent
within five business days from the date of Customer's knowledge that such
features were activated. Customer shall pay Lucent the then current license fees
charged by Lucent for the activated features identified as a result of
Customer's notice or Audit.
3.4.3 DISTRIBUTION
Software Updates and Software Upgrades shall be delivered by Supplier in such
medium (e.g., electronic distribution, CD-ROMs, or tapes) in, as Supplier shall
determine in its discretion.
3.4.4 SOFTWARE DELIVERY
Upon receipt of notice of availability of a Software Update or Software Upgrade,
Customer may indicate its desire to obtain the update as follows:
3.4.4.1 RETROFITS
Retrofits must be scheduled. Customer may request Retrofits through its Customer
Sales representative or CTA.
3.4.4.2 SOFTWARE UPDATES
Customer may request Software Updates that are not retrofits by calling the TAC
at (866) LUCENT8 (866-582-3688), or such other location as Lucent may designate.
Calls must be made Monday through Friday, Lucent's holidays excluded, during the
hours of 8:00AM to 5:00PM, Central Time.
3.4.5 PRE-INSTALLATION SUPPORT
Lucent shall furnish to Customer, documentation (including method of procedure
"MOPs" as applicable) relating to Software Updates and Software Upgrades that
contains information regarding the preconditions to installation that must be
fulfilled by Customer and instructions to be followed during installation. It is
Customer's obligation to become familiar with this material prior to commencing
any self-installation of a Software Update or Software Upgrade. As part of BRSS,
Lucent will, at no additional charge, provide answers to a reasonable number of
questions and otherwise provide a reasonable level of pre-installation support
to Customer concerning this information and these instructions. Such support is
available Monday through Friday, Lucent's holidays excepted, during the hours of
8:00AM to 5:00PM, Central Time. A request for support outside these hours will
be treated as non-emergency Assistance Requests and will be charged on a T&M
basis.
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3.4.6 INSTALLATION SUPPORT
During Customer's execution of a Software Update or Software Upgrade
installation procedure, Lucent shall be available to provide a reasonable level
of remote telephone support to resolve encountered problems. Such support shall
be available on a 7X24X365 basis by calling the TAC at (866)LUCENT8
(866-582-3688), or such other location as Lucent may designate.
3.4.7 RETROFIT SUPPORT
In addition to standard pre-installation and installation support, Supplier will
provide to Customer additional tools and services when a Retrofit is involved if
Customer is obtaining BRSS. Retrofits are involved when an ECP Major Release or
a 5ESS Major Release is replaced by a newer Major Release. A Retrofit requires
the use of specialized software and procedures to evolve existing database
translations in order to make a product ready to receive and operate a new Major
Release. Retrofit procedures will vary from Major Release to Major Release.
3.4.7.1 ECP RETROFITS
Supplier will provide, as part of BRSS, an On-Site Retrofit ("OSR") software
tool that may be run by Customer on Customer's OMP to perform selected
activities relating to evolving database translations. If Customer elects to
utilize the On-Site Retrofit (OSR) software tool, Supplier, through its ODD
Retrofit Group, will provide remote telephonic support for requirements issues
and error resolution. This support is available Monday-Friday, Supplier's
holidays excluded, during the hours 8:00AM. - 5:00PM, Central Time, by calling
the TAC at (866)LUCENT8 (866-582-3688), or such other number as Supplier may
designate. Requests for such support outside of these hours will be treated as
non-emergency Assistance Requests and are subject to billing on a T&M basis.
(Such out-of-hours support is not included as part of BRSS or RTS.)
3.4.7.2 5ESS RETROFITS
Supplier will provide, as part of BRSS, 5ESS Switch Retrofit Software.
Procedures will be announced to Customer as appropriate.
3.5 SOFTWARE SUPPORT POLICY
3.5.1 NORMAL PROGRESSION/SKIPPING
Lucent's software is typically designed for sequential Retrofit/upgrade
progression (for example, Major Release X to Major Release X+1). In some cases,
skip Retrofits may be available (for example, Major Release X to Major Release
X+2, skipping Major Release X+1). Lucent makes no commitment that any Major
Release can be skipped. Moreover, where skipping is available, additional
charges may apply. Customer should evaluate each new release, consider its
application, consider the availability of skipping or the lack thereof, and
select the software migration plan that best suits its needs.
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3.5.2 MAJOR RELEASE LIFE CYCLE RATINGS
Software ratings apply to Major Releases. Once a Major Release becomes generally
available to Lucent's Customers, it begins to migrate through four product
ratings during its life cycle; Standard Availability ("SA"), Additions and
Maintenance ("A&M"), Limited Availability ("LA"), and Discontinued Availability
("DA"). Differently rated Major Releases are subject to different levels of
support and use. The length of time that a Major Release remains at each product
rating varies depending upon Lucent's schedule for issuing new Major Releases.
When a Software release has been declared generally available, it moves into the
SA stage and remains in that classification until the next sequential Major
Release has been declared generally available at which time the original release
moves down in rating. For example, once made generally available, Major Release
X will remain SA until Major Release X+1 is issued. At that time, Major Release
X will move down one rating to A&M. With the issuance of Major Release X+2,
Major Release X moves down one rating to LA. With issuance of Major Release X+3,
Major Release X will move down to the final DA rating.
Any Software Update that is issued during a rating period will not change or
otherwise affect the rating of the Major Release. For example, if while ECP
Major Release X is rated SA, Lucent issues a Point Release (X.1) for that
release, Major Release X will retain its SA rating. Such Software Update shall
be considered part of the Major Release and will have the same rating as that
Major Release.
Support for differently rated Major Releases is described in Section 3.5.3
[* * *]
[* * *]
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3.5.3 SUPPORT AVAILABILITY FOR DIFFERENT SOFTWARE RATINGS*
SA A&M LA DA
------- ------- ------- -------
SUPPORT
OUTAGE [* * *] [* * *] [* * *] [* * *]
NON-OUTAGE [* * *] [* * *] [* * *] [* * *]
------- ------- ------- -------
SOFTWARE ISSUED
SOFTWARE UPDATES [* * *] [* * *] [* * *] [* * *]
------- ------- ------- -------
SOFTWARE MODIFICATIONS MADE+
OUTAGE [* * *] [* * *] [* * *] [* * *]
BILLING/CALL PROCESSING [* * *] [* * *] [* * *] [* * *]
NON-SERVICE AFFECTING [* * *] [* * *] [* * *] [* * *]
SOFTWARE ENHANCEMENTS [* * *] [* * *] [* * *] [* * *]
SPECIAL FEATURES [* * *] [* * *] [* * *] [* * *]
------- ------- ------- -------
PROCEDURES
RETROFIT FROM [* * *] [* * *] [* * *] [* * *]
RETROFIT TO [* * *] [* * *] [* * *] [* * *]
PROCEDURES ARCHIVED [* * *] [* * *] [* * *] [* * *]
SUPPORT TOOLS ARCHIVED [* * *] [* * *] [* * *] [* * *]
NEW START CUTOVER [* * *] [* * *] [* * *] [* * *]
------- ------- ------- -------
RELEASE SPECIFIC
SOFTWARE MAINTAINED [* * *] [* * *] [* * *] [* * *]
DOCUMENTATION MAINTAINED [* * *] [* * *] [* * *] [* * *]
SOFTWARE ARCHIVED [* * *] [* * *] [* * *] [* * *]
DOCUMENTATION ARCHIVED [* * *] [* * *] [* * *] [* * *]
------- ------- ------- -------
+ Lucent reserves the right to implement fixes in Software to problems in
succeeding Major Releases of that Software.
1. Available only if considered a Severity 1 or 2 problem.
2. Available only if considered a Severity 1 problem.
3. Available for attempted recovery only of the most recently
DA'd release, using Customer's copy of the Software. Lucent
makes no commitment that it can or will provide any fix or
work-around by overwrite or any other method. When a Software
release reaches DA, Assistance Requests are no longer
addressed.
4. These are limited to the first year of DA rating.
5. Limited to the most recent DA'd Release. Any Release older
than the most recent DA'd Release will require a Warmstart to
migrate to a newer Release.
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4. CUSTOMER RESPONSIBILITIES
Customer shall:
- Provide the proper environment, electrical and telecommunication
connections in conformance with product technical specifications.
This includes maintaining capacity and throughput in accordance with
specific guidelines of Maintained Products.
- Ensure that Maintained Products are in operating condition, and
operate on current supported hardware and Software releases.
- Ensure that Maintained Products are maintained with implementation
of Software Updates and Class A changes, within a 60-day interval of
availability.
- Maintain product support agreements for 3rd party platforms that
interact with Software and/or Maintained Products.
- Ensure that Lucent and relevant third party software manufacturer's
applicable installation, operation, administration, and maintenance
instructions are complied with.
- Move Maintained Products only with Lucent's prior written consent,
which consent shall not be unreasonably withheld in the case of
movement from one designated processor to another in the same
country, and notifying Lucent of the new location of any relocated
Maintained Products.
- Provide VPN access to Maintained Products.
- Maintain a procedure external to the software programs for
reconstruction of lost or altered files, data, and/or programs.
- When reporting an AR, include Severity Level of problem and output
of any diagnostics, printed logs, already performed to help
reproduce the conditions under which the trouble occurred. Identify
site ID or contract number, submitter name & location, callback
telephone number and/or email address, system name & location,
processor location, type and serial number, and alternate contact.
- Make trained technical staff available for interface to Lucent
engineers working an AR to report on-site conditions. Any delay time
caused by Customer may be deleted from performance objectives.
- Purchase of software and hardware maintenance directly from third
party or via Lucent resale to maintain non-Lucent platforms which
support covered Software.
4.1 CUSTOMER RESPONSIBILITIES CONCERNING LUCENT WEB SITE ACCESS
By accessing any Xxxxxx.xxx Web site to which Lucent affords Customer access,
for or in connection with its technical support service, Customer agrees to the
following:
- Customer shall not enable or permit Web site access to any person
other than its employees, without Lucent's prior written consent;
- If requesting such consent, Customer shall identify to Lucent any
non-employee who Customer would like to have access to the Web site,
and if requested by Lucent, will provide a copy of a Non-Disclosure
Agreement executed between Customer and the non-employee in
accordance with the confidentiality terms of the SOW pursuant to
which the Maintained Products were supplied. Such agreement will
provide, at a minimum, the level of protection provided in this
contract. Lucent may refuse consent within its sole discretion;
- Customer must notify Lucent in writing immediately of any change in
the employment or
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authorization status of any personnel having authorized access to
the Web site;
Without limiting Lucent's other rights, Lucent may deny access immediately and
in the future to individuals using the Web site other than as permitted. Lucent
shall have no liability to Customer on account of such denial.
All notifications described above should be sent to xxxxxxxxxx@xxxxxx.xxx and
should contain the following information:
- Company name
- User's first and last name
- User's email address
5. EXCLUSIONS
RTSA in general does not include items not described in this SOW. Examples of
items that are specifically excluded from this scope of work include, but are
not limited to:
- Equipment certification, as required per Lucent's policy on
equipment not installed by Lucent, or lapse in RTS coverage that
spans more than 90 days, or equipment that has been moved;
- Repair or replacement of product components;
- Lab and trial support;
- On-site technical support:
- Performing preventive maintenance for the Maintained Products;
- Deployment services, integration services, or custom modifications;
- Support for custom software features, that is, any features that are
not present in the generally available version of the Maintained
Products or Software;
- Support for third-party software not licensed to Customer by Lucent;
- Creating or making corrections to Customer specific reports;
- Services to implement CTA recommendations or suggested solutions.
- Lucent is not responsible for the loss of any data nor for the cost
of reconstructing data lost during the performance of RTS service;
- Making specification changes or performing services connected with
installation or relocation of the Maintained Products;
- Work external to the Maintained Products, whether or not on the
designated processor used in conjunction with the Maintained
Products;
- Assistance, including without limitation, modification or
replacement of the Maintained Products, repair of damage, or
increase in service time caused by or required as a result of any of
the following:
- Failure to continually provide a suitable operational
environment with all facilities prescribed by the applicable
product specifications document including, but not limited to,
the failure to provide or the failure of, adequate electrical
power, air conditioning, or humidity control;
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- Use of the Maintained Products in a manner not in accordance
with its specifications, operating instructions, capacity
guidelines, or license-to-use;
- Failure to properly maintain or backup Software on the Covered
System, to observe operating guidelines, to maintain
Third-party platforms, software or equipment as described in
Section 4.
- Accident; disaster, which shall include, but not be limited
to, fire, flood, earthquake, water, wind or lightning;
transportation difficulties; terrorism or other hostile
action; neglect; or misuse; except as follows: In the event of
a service interruption caused by accident, disaster, or
terrorism Lucent will make every commercially reasonable
attempt to restore service on the Maintained Products. If,
however, service is not restored within 12 hours, Lucent and
Customer will mutually agree on next steps to be taken, which
may include the purchase of disaster recovery services to
restore service. Additionally, the commercially reasonable
efforts contemplated by the provision do not include the
provision of new or additional hardware or software or
performance of on-site services, which if available would
require payment of additional charges;
- Modifications, maintenance, or repair performed by other than
Lucent designated personnel, including charges not authorized
by Lucent in the Maintained Product or software or the
hardware or the software environment in which the Maintained
Product or software operates, including without limitation the
introduction of updates of third party software or hardware
that have not been validated by Lucent;
- Attachment of unspecified or non-approved products to the
Maintained Products, or failure of a processor or other
equipment or software not maintained by Lucent, or failure of
removable or rotating storage media;
- Database problems: If the condition is determined to be the
result of corruption of the Maintained Product's database, and
such corruption is not the direct result of the Maintained
Products, the condition will be referred back to Customer.
However, if corruption is the result of, or caused by,
Lucent's Maintained Products, Lucent shall manage the
resolution of the problem, at no additional charge;
- Hardware/firmware problems: When a condition has been isolated
to a hardware or firmware problem on a product that is not
covered under this SOW, the condition will be referred back to
Customer for disposition under whatever maintenance
arrangements Customer may have for such hardware or firmware;
- Other/interfacing systems problems: If the condition is
determined to be caused by systems other than the Maintained
Products, including, but not limited to, systems that
interface with the Maintained Products, the condition will be
referred to Customer for corrective action unless the other
system(s) has been furnished by Lucent, in which case Lucent
shall manage the resolution of the problem.
6. ASSUMPTIONS/ELIGIBILITY FOR RTSA
6.1 EQUIPMENT MANUFACTURED, AND INSTALLED BY OR PURCHASED FROM LUCENT
RTSA is offered only for Software purchased from Lucent residing on equipment
manufactured by Lucent or for Lucent pursuant to specifications controlled by
Lucent. Standard Base Software Releases furnished by Supplier are eligible for
updating and related services under BRSS without initial evaluation by Supplier,
provided BRSS commences not later than the end of the applicable warranty period
for the respective Software.
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Equipment and Software in the Covered System must have been purchased directly
from Lucent or a Lucent authorized supplier, installed and/or integrated by
Lucent. Equipment and Software in the Covered System not meeting this criteria
is subject to Lucent observation and/or eligibility test. Such observation and
eligibility test will be available only at a separate fee and will be billed at
Lucent's then standard rate.
6.2 OTHER SITUATIONS
In all other situations, software shall not be eligible for RTSA until Lucent,
at its option, has made an initial evaluation to determine whether modifications
are required to make the software eligible. Billing to Customer for such
observations will be on a time and material basis. If, in Lucent's judgment,
modifications are required for eligibility, Lucent will provide an estimate to
Customer of the costs of making such modifications, including the price for
updating the software to a current, supported Standard Base Software Release.
Upon Customer's acceptance of the estimate, Customer will be billed based on
Lucent's estimate for such evaluation, and any such modifications furnished by
Lucent. Software will not be eligible for RTSA unless Lucent determines that the
software is in good working order in accordance with its specifications and can
be maintained in such condition.
6.3 CUSTOMER'S WARRANTIES OF AUTHORITY
Customer warrants, as a condition of eligibility, that Customer is the owner or
lessor of any equipment that runs the Software for which RTSA will be provided
under this SOW, or that Customer has the equipment owner's written authorization
to operate such equipment and obtain such support services under this SOW.
Customer further warrants that Customer is the licensee of the Software for
which BRSS will be provided under this SOW and is complying with the terms of
the license.
AMPS/PCS System Level Support RTSA Service is available only on a system basis
as defined by Maintained Products in Section 9.1. Customer must maintain the
same support coverage under this SOW for all of the Maintained Products in all
of its markets; and each system must be operating on a release within the
constraints described in Section 3.5.2 above. .
6.3 SUPPORT FOR RELOCATED SOFTWARE
Software to be supported by Supplier under this SOW, which is moved to another
Designated Processor of Customer within the Franchised Area, and Software which
is moved together with its Designated Processor to another location of
Customer's within the Franchised Area, shall continue to be covered by
Customer's BRSS, provided that Supplier has received thirty (30) days prior
written notice of such relocation and Customer agrees to pay additional charges
if the move increases Supplier's costs or expenses of providing BRSS.
Lucent reserves the right to inspect (one time) the Software as installed at the
new location to determine its eligibility for support as provided in Section 0
of this SOW. Lucent further reserves the right to supervise the unloading (if
any) of the Software from the processor and the reinstallation of the Software
at the new installation location. If Lucent chooses to perform the above stated
inspection and/or supervisions, Lucent shall be entitled to be compensated for
such services at Lucent's then standard rate.
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6.5 COMMENCEMENT OF RTSA
6.5.1 GENERAL.
RTSA may be ordered only for an annual period effective on January 1 of the
succeeding calendar year. Certain of the RTSA program benefits are subject to
allocation as provided in Section 8.2.
This general provision is subject to certain special rules set forth in this
section.
6.5.2 FIRST SYSTEM
If this SOW provides for Lucent supply of Customer's first system(s) comprised
of Lucent's equipment, then upon payment of the Initial Operating Fees for the
Software in such system(s), Customer shall be entitled to this RTSA Program
until the end of the calendar year in which the first of such systems is
deployed. This support starts on the day that installation and integration of
the system is complete, when Lucent performs the installation of the system. If
Lucent does not install all of the system, such support will be provided only
upon written request of Customer made within thirty (30) days of completion of
installation of the system and after the system has been deemed eligible for
such support, as provided in Section 6 above.
6.5.3 ADDITIONAL SYSTEMS
If Customer has existing systems covered by RTSA Program, any new Lucent
manufactured or furnished system, deployed by Customer whether or not purchased
from Supplier under this SOW, shall receive RTSA Program coverage at the same
level, at no additional charge, for the remainder of the calendar year in which
the deployment occurs. This support starts on the day that installation and
integration of the system is complete when Lucent performs the installation of
the system. If Lucent does not install all of the system, such support will be
provided only upon written request of Customer made within thirty (30) days of
completion of installation of the system and after the system has been deemed
eligible for such support, as provided in Section 6.2.
6.5.4 ADDITION OF EXISTING SYSTEMS
Notwithstanding Section 6.6.3 above, if Customer obtains from any third party
additional existing systems by purchase, lease, merger or otherwise, such
acquired systems shall not automatically be included in the group of Customer's
systems covered by RTSA. However, upon request of Customer, which Lucent shall
not unreasonably withhold or delay, and subject to mutual agreement as to fees
and other appropriate terms and conditions, such existing systems may be so
included. This support starts only after the existing system has been deemed
eligible for such support, as provided in Section 6.2 above.
7 GENERAL TERMS
7.1 CONDITIONS
Unless otherwise stated in previous sections of this SOW, the following applies
to all services:
- Lucent reserves the right to determine which qualified personnel to
assign to perform Services. Lucent personnel shall at all times be
subject to the employment conditions of Lucent and not those of
Customer.
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- Lucent may use proprietary tools and software for providing this
service. The stated price does not include the sale, licensing or
transfer of such tools or software to Customer.
- All work will be performed during normal business hours - 8:00AM to
5:00PM, local time, Monday through Friday - unless different working
hours/schedule have been noted in the appropriate service
description Section 3.5.3 or other written agreement of the parties.
7.2 CHANGE MANAGEMENT
The pricing in this SOW is based upon performance of the tasks and provision of
deliverables specifically defined in this document. Requests for additional work
activities that are not described in this document, including Customer-required
overtime or night work, or the application of any different or additional
criteria or testing in connection with any services or deliverables, are subject
to acceptance by Lucent and will entail additional charges to Customer. Certain
matters may require a new quotation under a separate SOW. If Lucent agrees to
perform additional work activities under a SOW, Customer shall execute a Change
Order in accordance with Lucent's Change Management Process to confirm the
schedule impact and Lucent's authorization to perform and xxxx for such work
activities.
8 PRICING NOTES
8.1 DETERMINATION OF PRICING UNITS
RTSA is based upon an annual fee payable in advance. The RTSA fees for the
annual period will be determined by using the number of appropriate Pricing
Units as defined in Section 0. Promptly following December 31 of the each
calendar year, Customer shall provide to Lucent in writing a count of the
applicable Pricing Units as of said date. Such count is subject to verification
by Lucent, and to certain special rules set forth in Sections 6.5. Customer
grants Lucent the right to use any information learned by Lucent in performing
services under this SOW in connection with any verification activities.
8.2 OTHER PRICING CONDITIONS:
- Prices quoted in this SOW are valid for 60 days from the date of
this document.
- All prices are in $US, unless stated otherwise.
- Pricing is valid through the term of the Agreement, not to exceed
March 31, 2008 unless otherwise agreed in writing by the Parties.
- Lucent will invoice Customer for RTSA services prior to the
commencement of services for the calendar year, and will invoice
subsequent year in advance prior to the start of each year. All
invoices rendered shall be due and payable within thirty (30) days
of the date of invoice.
- Unused services in a calendar year will not be carried over to a
subsequent year.
- When a RTSA program is provided for less than a full year, the
following adjustments apply:
- Customer will be entitled to 1/12th of the annual Consulting
services hours for each full month during which the Customer will be
receiving RTSA program Service, provided Customer RTSA program is
subscribed to for less than one calendar year.
- Addition of Existing Software: If Customer obtains from any third
party additional existing systems then providing service to the
public, by purchase, lease, merger or otherwise, such acquired
systems shall not automatically be included in the group of
Customer's
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systems, if any, then covered by RTSA. Upon request of Customer,
Lucent will provide Customer a quotation including such acquired
systems in the RTSA service.
- Lucent may consistent with the termination provisions of the
Agreement suspend performance of any RTSA service under this SOW
during any period when an invoice rendered hereunder remains unpaid
past its due date.
- Pricing for RTS and BRSS service is detailed in Section 9.2 of this
document..
- The annual RTSA services pricing may be increased for Renewal Terms.
Lucent shall notify Customer in writing of the price increase no
later than 90 days prior to the end of the then-current calendar
year of the Initial Term or Renewal Term, as applicable (a) The RTSA
pricing is exclusive of and does not include charges for any
integration services, custom modifications, and installation of
Software Updates, Software Upgrades, or Software Patches. (b)
Customer agrees to reimburse Lucent for all reasonable travel,
living, and other related out-of-pocket expenses associated with all
RTSA services provided by Lucent to the extent any travel is
requested by Customer or is necessary to provide any requested
Services.
- Additional charges may apply if performance or completion of the
service is delayed for any reason attributable to Customer. In such
cases, Customer agrees to authorize: (a) Lucent's billing for such
work activities on a time and material basis at Lucent's then
current standard rates and subject to any applicable per incident
and/or minimum hourly billing requirements then in effect and/or (b)
the schedule extension attributable to the delay.
- It is a condition of this service that during the term the service
is ordered and for a period of one (1) year thereafter, Customer
agrees not to solicit any Lucent employee or contractor for
employment or to enter into a separate consulting or contracting
relationship with such employee if such person was introduced to
Customer as a result of the performance of the services described in
this contract. A general advertisement or a request for employment
initiated exclusively by an employee or contractor shall not be
considered a solicitation for purposes of this provision
- Prices are based upon purchase of the Services for the entire agreed
Term. Accordingly, and notwithstanding any other provision of the
Agreement, there is no right by Customer to terminate this SOW or
any order for convenience during the course of the Initial Term or
any Renewal Term.
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9 PRICING
9.1 MAINTAINED PRODUCTS FOR RTS AND BRSS
The services described in this SOW are for the following Software products
used in Customer's AMPS and PCS network. The pricing and terms of support
of software not described in this section, including software developed by
Lucent, for Lucent pursuant to Lucent specifications, or Third-party
software resold by Lucent may be added to this SOW or covered under a
separate SOW as mutually agreed between the parties.
9.1.1 MAINTAINED PRODUCTS
- Operating Software for each ECP (Executive Cellular Processor)
- Operating Software for each Operations and Maintenance Processor
(OMP).
- The following operating Software for each 5ESS(R)Switch Manager
(Administrative Module)
- Operating Software for each Applications Processor (AP)
- Operating Software for Flexent Cells
- WatchMark(TM) Prospect Software (the three most recent GA'd
releases)
- Feature Software over and above the base feature Software included
in the respective operating Software packages set forth above.
- Software Updates and Software Upgrades to the Software packages set
forth above.
- Such other software as Supplier may agree in writing.
9.1.2 OPTIONAL FEATURE SUPPORT
RTSA covers the on-going maintenance of Optional Software Features for those
features, and for which the Customer has paid the applicable separate license
fee. This maintenance is available for all Optional Software Features.
9.2 REMOTE TECHNICAL SUPPORT
Pricing is determined by the Customer's network configuration and is based upon
the number of Pricing Units as indicated below. These prices are subject to
change based upon changes in
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Customer's configuration. In the event of such configuration changes, the prices
may be adjusted accordingly and will be effecting immediately upon such
configuration change. In December of the covered year, Lucent will assess the
system to ascertain configuration changes that may have occurred during the year
and, may adjust prices accordingly. In the event additional payment is due,
Lucent will invoice Customer within thirty (30) days after year-end.
RTS PREMIUM SERVICE INCLUDING 100 CTA HOURS PER ECP
RTSA 1-1-05 - 3-31-08 -
PRICING UNIT PRICE PER [* * *]
------------ -----------------------
ECP [* * *]
ATTACHMENT A: LUCENT TECHNOLOGIES MAINTENANCE SERVICES START FORM
THE COMPLETION OF THE ABOVE PRICING SECTION DOES NOT PRECLUDE
THE REQUIREMENT OF COMPLETING ATTACHMENT A. The Lucent
Technologies Maintenance Services Schedule MUST be completed
when the Customer contracts for any Lucent maintenance
services to ensure entitlement is properly established for
Customer. This completed form must go through the appropriate
ordering channel. Lucent Order Management personnel use this
form to log/enter the Customer's order into the system for
access by other Lucent Logistics, Call Receipt, Entitlement,
Knowledge Based Systems, and Welcome Centers. This form is
included as part of the Customer's SOW and legal contract. For
legal purposes, Lucent also maintains a copy of this completed
form as part of the legal maintenance agreement in the order
management systems/files.
Ordering Instructions
- Quote Number :
- OI Codes :
9.2.1 PRICING UNITS
For purposes of SOW the number of [* * *] shall be the basis for the Pricing
Units.
9.2.1.1 COUNT OF [* * *]
Fees related to [* * *].
-
10 GLOSSARY
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For purposes of this SOW, the following additional definitions shall apply:
1xEVDO means 1x Evolution (Data Only), a high-speed data solution supporting
data rates up to 2.4mbits/second.
"7X24X365" means seven days a week, 24 hours a day and 365 days a year.
"Assistance Request" and "AR" means a request for RTS support, as described in
Section 0 of this SOW.
"BRSS Program" and "BRSS" means the optional program under which Supplier offers
to Customer, Major Releases, Point Releases, Software Updates and Crafts for
software for which Customer has paid the applicable Fee, as more particularly
described, as more particularly described in this SOW.
"Covered Systems" means those AMPS and PCS systems operated by Customer in the
Franchised Area which, at the time of determination for purposes of this SOW,
are served by ECPs and is limited to the Maintained Products.
"Craft" means a small software release containing a collection of minor software
changes to a Major Release. Typically a Craft is less extensive than those
included in Point Releases or Software Updates.
"Customer Technical Advocate" and "CTA" means a person assigned by Lucent
pursuant to Section 3.3.
"Designated Processor" means the Product for which licenses to Use Licensed
Materials are granted.
"ECD" means Equipment Configuration Database.
""ECP" means a Lucent-manufactured Executive Cellular Processor installed in any
of Customer's PCS or AMPS systems in the Covered Systems, whether or not such
ECP was installed by or sold to Customer by Supplier, and regardless of the
technology supported by such ECP (e.g., analog, and CDMA).
"First System" means the initial equipment in a new market that completes
installation and integration, rendering it commercially viable. The initial
equipment may comprise of at least one CDMA ECP and its associated Base Station
or one 1xEVDO-RNC and its associated Data Cell for which Customer has been
invoiced.
"Franchised Area" means the area(s) for which the Federal Communications
Commission in the United States or a comparable government agency has granted a
permit to construct and operate one or more CDMA system(s), including any
non-designated areas contiguous to the Franchise Area, and in which, under such
agency's applicable rules, Customer will be able to provide a wireless
telecommunications service in such area(s) utilizing such system(s).
"Initial Operating Fees" (IOF) means those fees paid upon initial provision of
software for the right to use such software. Such a fee includes RTSA for the
remainder of the first calendar year of use.
"Major Release" means an issue of software, which significantly adds to,
improves or enhances existing base or standard software features and
capabilities of the prior Major Release involving more extensive changes to the
underlying source code or the user interface than is the case in a Point Release
or a Craft. A Major Release may also correct defects in earlier releases. The
term
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"Generic Release" is synonymous with Major Release. A Major Release may also
provide new optional software features, which Customer may acquire for
additional license fees.
"ODD" means Office Dependent Data.
"OMP-FX" is the Operation and Maintenance Platform for Flexent installed in any
of the Customer's 1xEVDO Data Networks in Covered System.
"Optional Software Feature" means a feature or functionality of software
resident in a Major Release but which is not licensed to Customer as part of
BRSS and is available for use by Customer only if Customer pays the applicable
separate license fee therefore.
"Pick-A-Pack Program" means the optional program under which Lucent allows
Customer to license optional software features in a Pack for a single price.
Refer to the Pick-A-Pack Program materials for more details.
"Point Release" means a superseding issue of software, which adds to, improves
or enhances existing features and capabilities of the Major Release of the
software with which it is associated. A Point Release may also correct defects
in earlier releases.
"Pricing Units" mean the pricing elements that are used to compute annual fees
for the RTSA Service, as described in Section 9.2 of this SOW.
"Remote Technical Support" "RTS" mean the collection of post-deployment support
services provided under this SOW as defined in this SOW.
"Retrofit", means a replacement of an existing Major Release (including any
subsequently issued Point Releases) with a Software Upgrade that constitutes a
new Major Release. Retrofits require modifications of the ODD and/or the ECD.
"Severity 1", "Severity 2", "Severity 3" and "Severity 4" mean the severity
levels described in this SOW.
"Software" means a computer program consisting of a set of logical instructions
and tables of information, which guide the functioning of a processor; such
program may be contained in any medium whatsoever, including hardware containing
a pattern of bits representing such program, but the term "software" does not
mean or include such medium.
"Software Update" means a partial update of existing software provided to
Customer in consideration of Customer's payment of BRSS fees, and containing one
or more of the following, in any combination: (i) improvement in basic call
processing capabilities, as well as basic system operation and maintenance, (ii)
changes to maintain compatibility between a new system release and features
existing in a prior system release (when initially introduced, a new system
release may not always be fully compatible with features available immediately
prior to such release), (iii) a platform for optional software features, and
(iv) consolidations of periodic fixes and overwrites. A Software Update can also
be a Point Release or a Craft, if it meets any of those definitions. Lucent does
not commit that any Software Updates will ultimately be released, made generally
available and therefore provided during the term that Customer subscribes to the
BRSS Program. Furthermore, Lucent does not warrant that any specific features or
functionality will be included in any Software Updates that may be provided
under the BRSS Program prior to the time that a Software Update is released and
made generally available to all BRSS subscribers
"Software Upgrade" refers to a Major Release provided to Customer in
consideration of Customer's payment of BRSS fees. In addition to the four
Software Update criteria
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mentioned above, a Software Upgrade may also provide infrastructure changes. A
Software Upgrade differs from a Software Update in that only a Software Upgrade
can provide infrastructure changes. Lucent does not commit that any Software
Upgrades will ultimately be released, made generally available and therefore
provided during the term that Customer subscribes to the BRSS Program.
Furthermore, Lucent does not warrant that any specific features or functionality
will be included in any Software Upgrades that may be provided under the BRSS
Program prior to the time that a Software Upgrade is released and made generally
available to all BRSS subscribers.
"Standard Base Software Release" means the two most recent Major Releases that
have been declared generally available. For example, if Major Release X is the
latest GA release, it and Major Release X-1 are considered Standard Base
Software Releases.
"T&M basis" means time and material, at Lucent's then prevailing rates.
"Third Party Software" means software developed and owned by a third party using
their own specifications and licensed to Lucent. Any third party warranties are
a pass through to Customer.
"TAC" means Lucent's Technical Center or equivalent designated center. Lucent
reserves the right to provide the services described herein from one or more
such centers.
"Warmstart" means the service under which Lucent will provide the support
services necessary to upgrade (evolve) Customer's ECP and 5ESS databases if the
Covered System is not on the necessary software release as defined in this SOW.
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SCHEDULE 1
TO
AMENDMENT XX. 0
0000 XXX-X FEES FOR CBS AND PSAX
1 PAGE
[One Page of Proprietary and Technical Information Deleted Pursuant to
Confidential Treatment Request]
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