Exhibit 10.10
GENERAL PURCHASE AGREEMENT NUMBER GA03598
FOR
TELECOMMUNICATIONS NETWORK PRODUCTS
AND RELATED SERVICES
BETWEEN
AMERITECH SERVICES, INC.
AND
AXIOM, INC.
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SUMMARY OF CONTENTS
ARTICLE I GENERAL TERMS AND CONDITIONS
ARTICLE 2 SUPPORT AND WARRANTIES
ARTICLE 3 ENGINEERING SERVICES
ARTICLE 4 INSTALLATION SERVICES
ARTICLE 5 TRAINING SERVICES
ARTICLE 6 REPAIR SERVICES FOR GOODS NOT COVERED UNDER WARRANTY
ARTICLE 7 SOFTWARE
ARTICLE 8 ENTIRE AGREEMENT - SIGNATURE
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APPENDICES:
APPENDIX 1. PRICES AND FEES
SECTION A: NEGOTIATED PRICING DATED
MARCH 13, 1998
SECTION B: AXIOM 1998 PRICING AND CONFIGURATION
GUIDE FOR BILLING SYSTEMS AND
SUPPORT SERVICES, REVISION C, DATED
MARCH 1, 1998
APPENDIX 2. DELIVERY/COMPLETION INTERVALS
APPENDIX 3. NONDISCRIMINATION PROVISIONS
APPENDIX 4. TECHNICAL REQUIREMENTS (BELLCORE DOCUMENTS)
APPENDIX 5. PRODUCT CHANGE NOTICE
SECTION A. PARTIES FOR PRODUCT CHANGE NOTICES
SECTION B. REQUIRED INFORMATION
APPENDIX 6. MAINTENANCE SUPPORT SERVICES
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ARTICLE ONE GENERAL TERMS AND CONDITIONS
1.1 DEFINITIONS
1.2 PARTIES WHO MAY PLACE ORDERS UNDER THIS AGREEMENT
1.3 TERM OF AGREEMENT
1.4 PRICES FOR GOODS AND SERVICES AND SOFTWARE FEES
1.5 ACCEPTANCE
1.6 ACCESS TO SUPPLIER'S PREMISES
1.7 ASSIGNMENT
1.8 BILLING
1.9 BILLING RECORDS
1.10 CHOICE OF LAW
1.11 COMPLIANCE WITH LAWS
1.12 CONFIDENTIAL INFORMATION
1.13 DEFAULT
1.14 DELAYS
1.15 DELIVERY/COMPLETION INTERVAL
1.16 DISCLOSURE OF DEFECTS
1.17 DOCUMENTATION
1.18 EQUAL OPPORTUNITY REQUIREMENTS
1.19 EQUIPMENT CLASSIFICATION
1.20 F.O.B.
1.21 FORCE MAJEURE
1.22 HAZARDOUS/TOXIC MATERIAL
1.23 HEADINGS
1.24 IMPLEADER
1.25 INDEMNITY
1.26 LIMIT OF LIABILITY - SUPPLIER
1.27 INDEPENDENT CONTRACTOR
1.28 INFRINGEMENT
1.29 INSOLVENCY
1.30 INSPECTION
1.31 INSURANCE
1.32 INVOICING
1.33 JOINT WORK PRODUCT
1.34 MARKING
1.35 MINORITY / WOMEN OWNED ENTERPRISES
1.36 REPORTS
1.37 MOST FAVORED CUSTOMER
1.38 NEW OR CHANGED ROUTINES, PROCEDURES OR SERVICES
1.39 NEW EQUIPMENT, SOFTWARE, FUNCTIONALITIES AND FEATURES
1.40 NONWAIVER
1.41 NOTICES
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1.42 ORDERING PROCEDURES
1.43 PACKING AND SHIPPING
1.44 PAYMENT
1.45 PUBLICITY
1.46 REGULATORY PROCEEDINGS
1.47 RELIABILITY
1.48 REMEDIES
1.49 SERVICES PERFORMED ON BUYER'S PREMISES
1.50 SEVERABILITY
1.51 SPECIFICATIONS FOR GOODS AND SOFTWARE
1.52 SUBCONTRACTORS
1.53 SURVIVAL OF OBLIGATIONS
1.54 TAX
1.55 TECHNICAL AUDIT FOR SOFTWARE FEATURE(S)
1.56 TERMINATION OF AN ORDER FOR CONVENIENCE
ARTICLE TWO SUPPORT AND WARRANTIES
2.1 CHANGES TO GOODS
2.2 CONTINUING AVAILABILITY OF REPLACEMENT PARTS
2.3 DISCONTINUANCE OF GOODS
2.4 EMERGENCY REPLACEMENT SERVICE
2.5 ENGINEERING COMPLAINTS
2.6 EXTRAORDINARY SUPPORT
2.7 INSTALLATION/CUTOVER ASSISTANCE
2.8 RADIO FREQUENCY ENERGY STANDARDS
2.9 REGISTRATION
2.10 RETURN OF GOODS
2.11 TECHNICAL SUPPORT
2.12 WARRANTIES
ARTICLE THREE ENGINEERING SERVICES
3.1 ENGINEERING SERVICES
3.2 ENGINEERING ERRORS
3.3 ENGINEERING DRAWINGS
ARTICLE FOUR INSTALLATION SERVICES
4.1 INSTALLATION SPECIFICATIONS
4.2 CHANGES TO INSTALLATION SERVICES
4.3 TESTING AND ACCEPTANCE
4.4 PREMIUM TIME ALLOWANCES
ARTICLE FIVE TRAINING SERVICES
Contract Number GA03598
5.1 TRAINING PROGRAMS AND MATERIALS
5.2 CERTIFICATES OF COMPLETION
5.3 TRAINING DEVELOPMENT
ARTICLE SIX REPAIR SERVICES FOR GOODS NOT COVERED UNDER WARRANTY
6.1 REPAIR/REPLACEMENT OF GOODS
ARTICLE SEVEN SOFTWARE
7.1 SOFTWARE LICENSE
7.2 SOURCE CODE ESCROW
7.3 STANDARD OF PERFORMANCE
7.4 INSTALLATION AND ACCEPTANCE
7.5 REPLACEMENT MEDIA
7.6 SOFTWARE SUPPORT
7.7 ENHANCEMENTS
7.8 WARRANTIES, RELATED REMEDIES
7.9 AUTHORIZED USERS
ARTICLE EIGHT ENTIRE AGREEMENT AND SIGNATURE
Contract Number GA03598
TERMS AND CONDITIONS
ALPHABETICAL LISTING
TITLE ARTICLE CLAUSE
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ACCEPTANCE 1 1.5
ACCESS TO SUPPLIER'S PREMISES 1 1.6
ASSIGNMENT 1 1.7
AUTHORIZED USERS 7 7.9
BILLING 1 1.8
BILLING RECORDS 1 1.9
CERTIFICATES OF COMPLETION 5 5.2
CHANGES TO GOODS 2 2.1
CHANGES TO INSTALLATION SERVICES 4 4.2
CHOICE OF LAW 1 1.10
COMPLIANCE WITH LAWS 1 1.11
CONFIDENTIAL INFORMATION 1 1.12
CONTINUING AVAILABILITY OF
REPLACEMENT PARTS 2 2.2
DEFAULT 1 1.13
DEFINITIONS 1 1.1
DELAYS IN DELIVERY OR COMPLETION 1 1.14
DELIVERY/COMPLETION INTERVAL 1 1.15
DISCLOSURE OF DEFECTS 1 1.16
DISCONTINUANCE OF GOODS 2 2.3
DOCUMENTATION 1 1.17
EMERGENCY REPLACEMENT SERVICE 2 2.4
ENGINEERING COMPLAINTS 2 2.5
ENGINEERING DRAWINGS 3 3.3
ENGINEERING ERRORS 3 3.2
ENGINEERING SERVICES 3 3.1
ENHANCEMENTS 7 7.7
EQUAL OPPORTUNITY REQUIREMENTS 1 1.18
EQUIPMENT CLASSIFICATION 1 1.19
EXTRAORDINARY SUPPORT 2 2.6
F.O.B. 1 1.20
FORCE MAJEURE 1 1.21
HAZARDOUS/TOXIC MATERIAL 1 1.22
HEADINGS 1 1.23
IMPLEADER 1 1.24
INDEMNITY 1 1.25
INDEPENDENT CONTRACTOR 1 1.27
INFRINGEMENT 1 1.28
INSOLVENCY 1 1.29
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INSPECTION 1 1.30
INSTALLATION SPECIFICATIONS 4 4.1
INSTALLATION/CUTOVER ASSISTANCE 2 2.7
INSTALLATION AND ACCEPTANCE 7 7.4
INSURANCE 1 1.31
INVOICING 1 1.32
JOINT WORK PRODUCT 1 1.33
MARKING 1 1.34
MINORITY / WOMEN OWNED ENTERPRISES 1 1.35
MOST FAVORED CUSTOMER 1 1.37
NEW EQUIPMENT, SOFTWARE,
FUNCTIONALITIES AND FEATURES 1 1.39
NEW OR CHANGED ROUTINES,
PROCEDURES OR SERVICES 1 1.38
NONWAIVER 1 1.40
NOTICES 1 1.41
ORDERING PROCEDURES 1 1.42
PACKING AND SHIPPING 1 1.43
PARTIES WHO MAY PLACE ORDERS UNDER
THIS AGREEMENT 1 1.2
PAYMENT 1 1.44
PREMIUM TIME ALLOWANCES 4 4.4
PRICES FOR GOODS AND SERVICES
AND SOFTWARE FEES 1 1.4
PUBLICITY 1 1.45
RADIO FREQUENCY ENERGY STANDARDS 2 2.8
REGISTRATION 2 2.9
REGULATORY PROCEEDINGS 1 1.46
RELIABILITY 1 1.47
REMEDIES 1 1.48
REPAIR/REPLACEMENT OF GOODS 6 6.1
REPLACEMENT MEDIA 7 7.5
REPORTS 1 1.36
RETURN OF GOODS 2 2.10
SERVICES PERFORMED ON BUYER'S
PREMISES 1 1.49
SEVERABILITY 1 1.50
SOFTWARE LICENSE 7 7.1
SOFTWARE SUPPORT 7 7.6
SOFTWARE WARRANTIES 7 7.8
SOURCE CODE ESCROW 7 7.2
SPECIFICATIONS FOR GOODS AND SOFTWARE 1 1.51
STANDARD OF PERFORMANCE 7 7.3
SUBCONTRACTORS 1 1.52
SURVIVAL OF OBLIGATIONS 1 1.53
Contract Number GA03598
TAX 1 1.54
TECHNICAL AUDIT FOR SOFTWARE FEATURES 1 1.55
TECHNICAL SUPPORT 2 2.11
TERMINATION OF AN ORDER FOR
CONVENIENCE 1 1.56
TERM OF AGREEMENT 1 1.3
TESTING AND ACCEPTANCE 4 4.3
TRAINING DEVELOPMENT 5 5.3
TRAINING PROGRAMS AND MATERIALS 5 5.1
WARRANTIES, RELATED REMEDIES (SOFTWARE) 7 7.8
WARRANTIES (GENERAL) 2 2.12
Contract GA03598
GENERAL PURCHASE AGREEMENT
FOR
TELECOMMUNICATIONS NETWORK PRODUCTS
AND RELATED SERVICES
This Agreement is entered into as of June 10, 1998, between Ameritech Services,
Inc., a Delaware corporation, with principal offices at 0000 Xxxx Xxxxxxxxx
Xxxxxx Xxxxx, Xxxxxxx Xxxxxxx, Xxxxxxxx 00000-0000, for itself and on behalf of
its Affiliates, and Axiom, Inc. (hereinafter "Supplier"), a New Jersey
corporation, with principal offices at 0000 Xxxxxxxxx Xxxxx, Xx. Xxxxxx, Xxx
Xxxxxx 00000, for the purchase of telecommunications network products and
related services and the licensing of software.
In consideration of the mutual promises set forth herein, the parties agree as
follows:
Contract GA03598
ARTICLE ONE
GENERAL TERMS AND CONDITIONS
1.1 DEFINITIONS
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For purposes of this Agreement, the following words shall be defined as
below:
"Affiliates" shall mean Ameritech Corporation and any business entity which
is, directly or indirectly, owned or controlled by Ameritech Corporation.
For the purpose of this Agreement, owned means Ameritech Corporation or any
Affiliate owns an equity interest (or equivalent thereof) of more than
fifty percent (50%). Affiliate also means any successor to Ameritech
Corporation, whether by change of name, dissolution, merger, consolidation,
reorganization or otherwise.
"Buyer" shall mean (1) Ameritech Services, Inc. or any Affiliate with
respect to any Orders placed by it, or (2) any Affiliate with respect to
Goods, Services and/or Software ordered by Ameritech Services, Inc. and
transferred to such Affiliate, or (3) Ameritech Services, Inc. with respect
to matters relating to or affecting the terms and conditions of this
Agreement.
"E" or "engineer" shall mean the performance of functions such as design,
layout and planning by Supplier.
"Enhancement" shall mean additional Software functional capabilities,
efficiency improvements, modifications and/or the introduction of
functionality not originally implemented by the previous version of the
object code or the implementation of said functionality on new or different
technologies.
"FPP" shall mean a firm price proposal received from Supplier in response
to Buyer's EF&I, F&I, and E&F Orders. An FPP shall include itemized pricing
and, as applicable, a detailed list of the Goods and/or Software,
description of the Services, technical configuration of the Goods, and
performance calculations.
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"FPQ" shall mean a firm price quotation received from Supplier in response
to Buyer's Request for Proposal. An FPQ shall include itemized pricing and,
as applicable, a detailed list of the Goods and/or Software, description of
the Services, technical configuration of the Goods, and performance
calculations.
"Furnish Only" shall mean the supplying of Goods by Supplier with no
engineering and/or installation Services required from Supplier.
"Goods" shall mean all products manufactured and/or supplied by Supplier.
"I" or "install" shall mean the performance of installation, removal,
rearrangement and other related Services by Supplier.
"Materials" shall mean products furnished by Buyer for Supplier's
performance of certain Services under an Order placed under this Agreement.
Materials may include products purchased from Supplier under another
purchase order or products purchased from other suppliers of Buyer.
"Order" shall mean Buyers form of order for purchasing Goods and Services
and/or licensing Software hereunder.
"Services" shall mean, as applicable, the performance of engineering,
installation, assembly, repair, replacement, training or other work, other
than manufacturing, by Supplier under this Agreement.
"Software" shall mean computer programs manufactured or distributed by
Licensor and described in an Order, including machine-readable object code,
but not source code. Computer programs means a set of statements or
instructions, in any verbal, schematic, or other form, in any language or
mechanical or other translation thereof, which is capable, when
incorporated in a machine-readable medium of directly or indirectly causing
a machine or device having information processing capabilities to indicate,
perform, or achieve a particular function. Such programs may be contained
in any medium whatsoever, including hardware containing a pattern of bits
representing such programs. Software does not include the medium in or on
which it is contained. Software does include, but is not limited to forms,
screens, reports, routines, subroutines, scripts,
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control statements, models, and templates. Software also includes all
Documentation and Updates normally provided by Supplier to its customers.
"Update" shall mean changes to the Software that remedy deficiencies or
improve operating performance without altering its basic functionality.
1.2 PARTIES WHO MAY PLACE ORDERS UNDER THIS AGREEMENT
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Ameritech Services, Inc. and each of the Affiliates may place Orders under
this Agreement in accordance with the terms and conditions of this
Agreement. The ordering party shall be solely liable for all applicable
obligations of Buyer specified herein which arise from any Order(s) it may
place under this Agreement including, but not limited to, payment
obligations, and the ordering party shall have the benefit of all
applicable obligations of Supplier established in this Agreement in
connection with any Orders it may place. In addition, each of the
Affiliates shall also have the benefit of all warranties and other
agreements of Supplier hereunder with respect to Goods, Services and/or
Software ordered by Ameritech Services, Inc. and transferred to any such
Affiliate.
1.3 TERM OF AGREEMENT
-----------------
This Agreement is effective for the placement of Orders for Goods,
Services, and/or Software from June 1, 1998 through May 31, 2003, and shall
continue to be effective for Orders placed during successive period(s) of
one (1) year each unless terminated at the expiration of the initial or any
such successive period by either party on not less than one hundred-twenty
(120) days prior written notice to the other.
1.4 PRICES FOR GOODS AND SERVICES AND SOFTWARE FEES
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Prices for Goods and Services and fees for Software ordered hereunder are
set forth in Appendix 1, attached hereto and incorporated herein, or as
otherwise agreed in writing by Supplier and Ameritech Services, Inc. In the
event Supplier furnishes any foreign manufactured Goods hereunder, Supplier
shall comply with the provisions in Appendix 2, attached hereto and
incorporated herein.
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1.5 ACCEPTANCE
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All Goods, Services, and Software shall be received by Buyer subject to
Buyer's inspection and right of rejection. Buyer shall have no obligation
to accept and pay for Goods, Services, and/or Software which do not conform
to the Supplier published specifications and requirements established in
this Agreement. Buyer assumes no liability for Goods produced or shipped in
excess of the quantity specified in any Order placed hereunder.
A. Goods:
Except where Supplier performs installation Services pursuant to the
Order for the Goods, Buyer shall have thirty (30) days after delivery
of the Goods to Buyer's destination to inspect such Goods for shipment
deficiencies, defects and/or damage. Failure of Buyer to notify
Supplier of any shipment deficiencies, defects and/or damage to the
Goods within said period shall be deemed acceptance of the Goods.
Whenever Supplier performs installation Services for Goods furnished
by Supplier, acceptance of the affected Goods shall be in accordance
with the provisions in Article Four. If Buyer notifies Supplier of any
deficiencies, defects and/or damage, Supplier shall have thirty (30)
days from the date of the notice to cure such deficiencies, defects,
and/or damage unless another period or procedure specifically or
expressly applies.
B. Software:
Software which is to be used with Goods to be installed by Supplier
and which is provided with such Goods shall be accepted in accordance
with the provisions in Article Four relating to such Goods. All other
Software shall be accepted in accordance with the provisions in
Article Seven.
C. Services:
Buyer shall accept Services performed hereunder upon completion of the
Services conforming to the service order specifications to Buyer's
reasonable satisfaction, in accordance with the provisions in Articles
Two through Seven relating to such Services, unless otherwise
specified in this Agreement.
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All required documentation (including central office base drawings where
applicable) shall be provided to Buyer prior to and as a condition of
Buyer's final acceptance.
Acceptance in no way relieves Supplier of its responsibilities under the
WARRANTIES Clause.
1.6 ACCESS TO SUPPLIER'S PREMISES
-----------------------------
Supplier shall permit reasonable access to its premises in connection with
the purchase of Goods and Services hereunder. Buyer shall comply with all
plant rules and regulations and any governmental requirements while on
Supplier's premises. Supplier shall not require waivers or releases of any
personal rights from Buyer in connection with visits to Supplier's
premises, and no such release or waiver shall be pleaded by Supplier in any
action or proceeding.
1.7 ASSIGNMENT
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Supplier shall neither assign any right or interest under this Agreement or
any Order issued hereunder, excepting monies due or to become due, nor
delegate any obligation or work in whole or in part to be performed by
Supplier under this Agreement or any Order hereunder without Buyer's prior
written consent. Any attempted assignment or delegation in contravention of
the above provisions shall be void. Any assignment of monies shall be void
to the extent that (1) Supplier has not given Buyer at least thirty (30)
days prior written notice of such assignment, or (2) such assignment
imposes upon Buyer obligations to the assignee additional to the payment of
such monies or precludes Buyer from dealing solely and directly with
Supplier in all matters pertaining to this Agreement or any Order
hereunder.
Buyer may assign this Agreement or any Order, in whole or in part, to
Ameritech Corporation or any of its Affiliates. Upon such assignment and
assumption of liability thereto by assignee, the assignor shall be
discharged of any liability pursuant to this Agreement.
Without limiting the generality of the foregoing, this Agreement shall be
binding upon and shall inure to the benefit of the parties' respective
successors and assigns.
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1.8 BILLING
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When applicable, supplier's billing for Goods and/or Services furnished
hereunder shall be in accordance with the standards specified in Bellcore
document TR-ISD-000152, Issue 2, dated May, 1987, Guidelines For Mechanized
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Invoicing. Such standards permit Buyer to identify equipment retirement
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units for inclusion into mechanized Property Records Systems and
classification of central office equipment in accordance with the Uniform
System of Accounts.
1.9 BILLING RECORDS
---------------
Supplier shall maintain, at no additional charge to Buyer, in accordance
with generally accepted accounting principles, complete and accurate
records related to amounts billed to and payments made by Buyer hereunder,
including records reflecting all labor and equipment hours, materials
acquired and work subcontracted to other parties in connection with
Supplier's performance hereunder. Supplier shall provide Buyer supporting
documentation concerning any disputed invoice within thirty (30) days after
Buyer notifies Supplier of a dispute, or, at Buyer's option, Supplier shall
permit Buyer to examine and audit these records at all reasonable times to
verify any amounts in dispute. Payments made under this Agreement shall be
subject to final adjustment as determined by such review. Supplier shall
retain such records for a period of three (3) years from the expiration of
this Agreement or for such length of time as may be required by any
applicable federal, state, or local law, ordinance or regulation, whichever
is longer.
1.10 CHOICE OF LAW
-------------
The construction, interpretation performance of this Agreement and any
claims arising hereunder or related hereto, whether in contract or tort,
shall be governed by and construed in accordance with the domestic laws,
without regard to its conflict of law rules, of the State of Illinois, or
with respect to any Order, the domestic laws, without regard to its
conflict of law rules, of the State to which the Goods and/or Software are
shipped or to be shipped, or, in the case of Services, the State in which
the related Goods and/or Software are used, or, if no Goods and/or Software
are involved, the State where performed.
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1.11 COMPLIANCE WITH LAWS
--------------------
Supplier and all persons furnished by Supplier shall comply with the
provisions of the Fair Labor Standards Act, the Federal Occupational Safety
and Health Act, environmental laws (the subject of which may include, but
shall not be limited to, air, water, noise, soil, and land-fill areas), and
all other applicable federal, state and local laws, ordinances and
regulations in the performance of this Agreement, including the procurement
of required permits and certificates. "Performance" as used herein shall
include, but not be limited to, Supplier's furnishing, installation,
removal, processing, transportation, use, disposal, treatment, reclamation
or other method of handling Goods and/or Materials under this Agreement.
Supplier shall indemnify Buyer from and against any loss, damage or expense
sustained by reason of Supplier's failure to comply.
Supplier shall maintain throughout the term of this Agreement all federal,
state and local licenses, permits, and certificates necessary to perform
this Agreement, which shall be promptly furnished to Buyer upon request.
1.12 CONFIDENTIAL INFORMATION
------------------------
Any information, including but not limited to specifications, drawings,
computer programs, technical or business information or other data in
whatever form (hereinafter "Information"), furnished by a disclosing party
to a receiving party, whether in writing, orally or visually, under or in
contemplation of this Agreement or any Order or to which the receiving
party has access through its performance hereunder shall be considered
confidential and shall be subject to the following:
A. Receiving party shall restrict disclosure of the Information to
Supplier's employees with a "need to know" (i.e., employees that
require the Information to perform their responsibilities in
connection with this Agreement or an Order) and not disclose it to any
other person or entity without the prior written consent of disclosing
party;
B. Receiving party shall use the Information only for purposes of
performing under this Agreement;
C. Receiving party shall advise those employees who access the
Information of their obligations with respect thereto;
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D. Receiving party shall copy the Information only as necessary for those
employees who are entitled to receive it and ensure that all
confidentiality notices are reproduced in full on such copies; and
E. Receiving party shall return all copies of such Information to
disclosing party at disclosing party's request.
Receiving party recognizes and agrees that the unauthorized use or
disclosure of the Information would cause irreparable injury to disclosing
party for which it would have no adequate remedy at law, and that an actual
or contemplated breach of this Clause shall entitle disclosing party to
obtain immediate injunctive relief prohibiting such breach, in addition to
any other rights and remedies available to it. The obligations herein
contained shall expressly survive the termination or expiration of this
Agreement.
The Information shall not be considered confidential and shall not be
subject to the foregoing if receiving party can demonstrate that the
Information:
A. is or becomes available to the public through no breach of this
Agreement or an Order;
B. was previously known by receiving party without any obligation to hold
it in confidence;
C. is received from a third party free to disclose such Information
without restriction;
D. is independently developed by receiving party without the use of
disclosing party's Information;
E. is approved for release by written authorization of disclosing party,
but only to the extent of such authorization;
F. is required by law or regulation to be disclosed, but only to the
extent and for the purposes of such required disclosure; or
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G. is disclosed in response to a valid order of a court or lawful request
of governmental agency, but only to the extent of and for the purposes
of such order or request, provided that receiving party first notifies
disclosing party of the order or request and permits disclosing party
to seek an appropriate protective order.
H. No Information furnished by receiving party to disclosing party
hereunder or in contemplation hereof shall be treated as confidential
by disclosing party, with the exception of product specifications,
hardware, or software information, and/or performance data, pricing
information and proposals, operation manuals and related operating
instructions, unless specifically labeled as such by receiving party
in advance of its disclosure to disclosing party. In such event
disclosing party shall safeguard and protect receiving party's
confidential Information in accordance with the provisions above,
except disclosing party may disclose such Information to employees of
Ameritech Services, Inc. and the Affiliates with a need to know.
1.13 DEFAULT
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In the event either party shall be in breach or default of any term of this
Agreement or any Order placed hereunder and such breach or default shall
continue for a period of thirty (30) days after the giving of written
notice to the party in breach or default by the other, the aggrieved party
may avail itself of any and all remedies at law or in equity or otherwise,
including, without limitation, the right to cancel any affected Order(s)
without any charge, obligation or liability whatsoever, except as to the
payment for Goods, Services, and/or Software already received and accepted
by Buyer and the right of Supplier to reject any Orders if Buyer is in
breach; provided, however, that Buyer may receive the liquidated damages
set forth in the DELAYS Clause without having first given the aforesaid
written notice of breach or default. In the event the parties established a
commitment, purchase level or discount program, the quantity covered by
such cancelled Order(s) shall be deducted from such commitment, purchase
level or volume required for discount entitlement. Each party shall
cooperate with the other in every reasonable way to facilitate the remedy
of a breach or default hereunder.
Failure by Buyer to pay any amount allegedly due under any Order which is
the subject of a good faith dispute shall not be deemed to be a breach or
default by Buyer as long as the parties are negotiating in good faith,
provided further, however, that if the amount in dispute has not been paid
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or settlement reached within 90 days after the invoice due date,
Supplier may consider Buyer in default of said payment.
1.14 DELAYS
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Supplier shall notify Buyer in writing prior to the agreed upon date
of delivery of Goods and/or Software to the designated F.O.B.
point, or date of completion of Services, or any possible delays in
the agreed upon schedule for delivery of Goods/Software, or for
completion of Services. Buyer shall review such notice, and if Buyer
determines it is not adversely affected by such delay, then Buyer
will consent in writing to such delay and the paragraphs below shall
not apply, unless Supplier subsequently fails to meet the extended
delivery or completion date, in which event such paragraphs shall
apply retroactively from the original date for delivery/completion
if Buyer does not consent in writing to such further delay.
If such consent is not granted to Supplier and Supplier fails to
meet the agreed upon date of delivery or date of completion through
no fault of Buyer or for any reason not covered by the FORCE MAJEURE
Clause, then, because damages to Buyer arising from such delay would
be difficult if not impossible to ascertain; Following a period of
fifteen (15) days from the required delivery date, buyer shall be
entitled to receive as liquidated damages, and not as a penalty, an
amount calculated by multiplying one half percent (.5%) times the
price of the Order for each day delivery of the Goods and/or
Software or completion of the Services is delayed until actual
delivery/completion or Supplier's receipt of Buyer's notice of
cancellation of the Order pursuant to the DEFAULT Clause, whichever
first occurs. The amount of liquidated damages shall not exceed 10%
of the price of the Order. At Buyers option, Supplier shall either
credit the liquidated damages against the price of the applicable
Order or promptly make payment thereof to Buyer. Buyer's entitlement
to liquidated damages for delayed delivery/completion under the
above paragraph shall not be construed to limit, diminish or
prejudice any of Buyer's other rights or remedies provided at law or
in equity or as set forth in this Agreement, including Buyer's right
to cancel any Order hereunder at any time pursuant to the DEFAULT
Clause.
Notwithstanding the foregoing, Supplier shall use diligent efforts
to deliver the Goods and/or Software or complete the Services
subject to this Clause expeditiously.
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1.15 DELIVERY/COMPLETION INTERVAL
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Goods and Software shall be delivered to the specified F.O.B. point
and Services shall be performed according to Supplier's standard
intervals; provided, however, Supplier and Buyer may agree to a
delivery schedule applicable to an Order that results in a reduction
in the standard intervals. Should Buyer require delivery of Goods
and Software and/or completion of Services sooner than the standard
intervals, Supplier shall use diligent efforts to comply with such
request. Supplier's standard intervals are set forth in Appendix 2,
attached hereto and incorporated herein.
1.16 DISCLOSURE OF DEFECTS
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Supplier acknowledges and understands the critical importance to
Buyer of avoiding network or other service degradation, adverse
media coverage or other adverse publicity regarding its network
services, or the deterioration or breach of the security of Buyer's
telecommunications facilities or network. For purposes of this
section, "Event" shall mean any malfunction of the Goods and/or
Software ordered hereunder or any failure of such Goods and/or
Software to conform to the Specifications of the Buyer or Supplier.
An Event includes but is not limited to:
(a) Actual failures or adverse functioning of such Goods and/or
Software;
(b) Actual or known defects in design and/or manufacturing of
Goods and/or Software which are known by Supplier regardless
of whether such potential, suspected, actual or known defects
have resulted in any actual malfunctions or failures of Goods
and/or Software; and
(c) uses of such Goods and/or Software in combination with other
goods, products, or services, whether those of Supplier or
others, where such combined usage actually does result in
failures or adverse functioning of the Goods and/or Software.
Supplier agrees to be aware of and compile reports concerning any
actual Events. Supplier further agrees to notify the affected
Buyer(s) and Ameritech Services, Inc. of the occurrence of any Event
within four (4) hours of Supplier's first knowledge of the Event.
Such notification shall include any and all actions taken by
Supplier, its agents and contractors and by the owner or user of
Goods and/or Software which are subject to the Event. Within
forty-eight (48) hours after such notification, Supplier shall
provide the Buyer(s) with a complete and detailed written
description of
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(1) the activities which led up to or preceded the Event, (2) the
cause or causes of, including any and all known contributing factors
to, the Event, (3) any and all actions taken by Supplier, its
agents, and contractors, and by the owner or user of the Goods
and/or Software which are subject to the Event to control, correct,
or contain the Event, (4) the date the Event will be resolved and
(5) any and all measures which can be reasonably taken to avoid or
stop the occurrence of the Event in the Buyer's(s') facilities or
network. Supplier shall continue to provide these written
descriptions to the Buyer(s) every forty-eight (48) hours until such
time as the Event has been successfully resolved or until Supplier
and the Buyer(s) agrees on their discontinuance. If requested by the
Buyer(s), Supplier shall provide identical descriptions to
Belicore's National Control Center or Ameritech Services Inc.'s
specified agent.
1.17 DOCUMENTATION
-------------
Supplier shall provide its standard documentation and/or
site-specific documentation in accordance with Bellcore document
TR-TSY-oo0454 Issue 1, Supplier Documentation for Network Elements
-------------------------------------------
and Ameritech document AM-TR-EEN-0o0o15 Issue 1, dated June 1987,
Ameritech Central Office Equipment and Engineering Requirements, and
----------------------------------------------------------------
any revisions thereto. Documentation and any subsequent changes or
updates shall reference Supplier's part numbers, issue numbers, and
date of issue. Such changes and updates shall be provided at no
charge to Buyer and shall include all documentation associated with
all changes and enhancements to the Goods and/or Software.
All requested or required documentation, information and copies
shall be provided in Supplier's standard format.
Buyer reserves the right to provide certain standard documentation
required for the installation of Supplier's Goods to third parties
for the sole purpose of having such third parties install Goods
purchased hereunder.
A. Supplier's standard documentation means all materials, whether
supplied in printed form or on magnetic tape or other media,
that explain or facilitate the use of the Goods and Software.
Such documentation includes, but is not limited to, equipment
specification drawings, circuit schematic drawings, and wiring
diagrams; technical specifications; maintenance, operation and
installation manuals or instructions; training materials; user
manuals; systems manuals; programming manuals; and flow charts
and logic diagrams.
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Buyer may reproduce Supplier's standard documentation for its
internal use, provided that Buyer reproduces Supplier's copyright
or other proprietary legend.
B. At no additional charge, Supplier shall provide to Buyer's site
one (1) complete set of all applicable standard documentation
under each Order placed by Buyer.
C. Site-specific documentation includes, but is not limited to,
engineering and installation specifications, central office base
drawings, list of required Goods and Software. Buyer shall have
title to, ownership of, and all proprietary rights in all
site-specific documentation prepared or conceived or developed by
Supplier or its employees, agents and subcontractors in
contemplation of during the course of, or in connection with or
arising out of performance under an Order placed hereunder.
Supplier shall, as necessary to implement the foregoing sentence,
obtain from such employees, agents or subcontractors the
assignment, transfer and conveyance to Supplier or Buyer of any
proprietary rights, including copyright, that they may have in
such documentation. Site-specific documentation shall be
considered Buyer's confidential information and shall be subject
to the provisions in the CONFIDENTIAL INFORMATION Clause.
D. Supplier shall provide to Buyer's job site two (2) complete sets
of site-specific documentation upon commencement of the
installation Services where Supplier is performing such Services.
E. Buyer shall have title to, ownership of, and all proprietary
rights in all site-specific documentation as described in
Subsection 1.17.C, except Supplier's standard documentation,
prepared or conceived or developed by Supplier or its employees,
agents and subcontractors in contemplation of, during the course
of, or in connection with or arising out of performance under an
Order placed hereunder. Supplier shall, as necessary to implement
the foregoing sentence, obtain from such employees, agents or
subcontractors the assignment, transfer and conveyance to
Supplier or Buyer of any proprietary rights, including copyright,
that they may have in such documentation. Site-specific
documentation shall be considered Buyer's confidential
information and shall be subject to the provisions in the Section
entitled "CONFIDENTIAL INFORMATION."
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1.18 EQUAL OPPORTUNITY REQUIREMENTS
------------------------------
Supplier shall comply, to the extent applicable, with the
NONDISCRIMINATION PROVISIONS set forth in Appendix 3, attached
hereto and incorporated herein.
1.19 EQUIPMENT CLASSIFICATION
------------------------
Prior to or upon shipment of Goods ordered hereunder, Supplier
shall, at no additional charge to Buyer, provide Buyer's engineering
department a list of the Goods classified in accordance with the
Uniform System of Accounts and in sufficient detail to enable Buyer
to identify equipment retirement units for inclusion into mechanized
property record systems and in the format required for direct entry
into Buyer's Detailed Continuing Property Record system in
accordance with the provisions in the MARKING Clause.
1.20 F.O.B.
------
Goods shipped to Ameritech Services, Inc. shall be F.O.B. origin,
prepaid and added. Buyer shall select the shipping company to be
used for shipment of all Goods and it shall notify the Supplier of
the company's address and telephone number. In the event that Buyer
fails to make such notification prior to the shipment date, Supplier
shall select the standard carrier used for the product being
shipped.
Goods shipped to an Affiliate shall be F.O.B. destination, freight
prepaid and added as a separate item on Supplier's invoice, unless
otherwise indicated in Buyer's Order.
Purchases under this Agreement shall be shipped subject to freight
charges appropriate for goods classified pursuant to the National
Motor Freight Classification. Supplier shall use value resulting in
lowest charge where rate is dependent on released value.
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1.21 FORCE MAJEURE
-------------
Neither Buyer nor Supplier shall be liable to the other for any
delay or failure in performance hereunder due to strikes, threatened
strikes, stoppage of work, embargoes, requirements imposed by
governmental regulations, civil or military authorities, or other
causes which are beyond the control and without the fault or
negligence of the party unable to perform (hereinafter "force
majeure condition"). The party delayed or unable to perform shall
give immediate notice to the other party.
In the event Supplier is the party delayed or unable to perform for
a period of three months or more, Buyer may elect:
(a) to terminate any affected Order or portion thereof relating to
Goods and/or Software not already delivered or Services not already
performed without liability to Supplier; or (b) to suspend
performance under the affected Order or portion thereof for the
duration of the force majeure condition, during which period Buyer
may buy elsewhere substitute goods, services and/or software and, if
applicable, to allow Supplier to resume performance of the affected
Order once the force majeure condition ceases, with an option to
extend the delivery/completion date up to the length of time the
force majeure condition endured or (c) to take other action as may
be agreed to by the parties. In the event the parties established a
commitment, purchase level or discount program, the quantity bought
or for which commitments have been made elsewhere shall be deducted
from such commitment, purchase level or discount program. Buyer
shall not be obligated to pay for Services (or in the event of
prepayment shall be entitled to a refund) to the extent and for the
duration that performance thereof is delayed or prevented pursuant
hereto. The above shall not prevent Buyer from subsequently
terminating the affected Order pursuant to the terms and conditions
specified in Section 1, Paragraph 56.
1.22 HAZARDOUS/TOXIC MATERIAL
------------------------
Supplier shall identify to Buyer, in advance of delivery, any toxic
substances or hazardous materials incorporated in or associated with
the Goods or Services provided hereunder and shall advise Buyer of
all precautions to be taken for their use and disposal. When
applicable, Supplier shall furnish Buyer a completed Material Safety
Data Sheet for any materials furnished by Supplier hereunder as
required by any federal, state or local laws, ordinances or
regulations. Any
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transportation or other handling of the hazardous materials by
Supplier shall be performed in accordance with all applicable
federal, state and local laws, ordinances and regulations.
1.23 HEADINGS
--------
The Clause headings inserted in this Agreement are for convenience
only and are not intended to affect the meaning or interpretation of
this Agreement.
1.24 IMPLEADER
---------
Supplier shall not implead or bring any action against Ameritech
Services, Inc., any Affiliates, Ameritech Corporation or their
employees based on any claim by any person for personal injury or
death that occurs in the course or scope of employment of such
person by Supplier that arises out of Goods, Services and/or
Software provided under this Agreement and which is caused by
Supplier's negligence or willful misconduct.
1.25 INDEMNITY
---------
Supplier shall defend, indemnify and hold harmless Buyer, its
corporate affiliates, their officers, employees and agents from and
against any and all losses, damages, expenses (including attorney's
fees and costs), claims, suits and liabilities, whether based in
contract or tort (including strict liability), to the extent arising
out of or resulting from (a) Supplier's negligent acts, omissions,
or willful misconduct of those of persons, including subcontractors,
furnished by it, (b) any defective Goods provided hereunder which
cause personal injury, (c) assertions under Workers' Compensation or
similar laws made by persons furnished by Supplier. Buyer shall
promptly notify Supplier of any written claim, loss, or demand for
which Supplier is responsible under this Clause.
Without limiting the generality of the foregoing, to the extent that
Services are performed in the State of Ohio, it is expressly agreed
that Supplier hereby waives any immunity from its obligations to
defend, indemnify and hold harmless Buyer (or The Ohio Xxxx
Telephone Company) from and against claims by employees of Supplier,
which immunity would otherwise arise by operation of Ohio Revised
Code (S)(S)4l23.74 and 4123.741 and Section 35, Article II, Ohio
Constitution or any other statute or constitutional provision.
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1.26 LIMIT OF LIABILITY - SUPPLIER
-----------------------------
Supplier's liability is limited as follows:
A. In no event shall supplier be liable for any incidental or
consequential damages, lost profits, or lost data, or any other
indirect damages even if supplier has been informed of the
possibility thereof.
B. Except for any liability for indemnification under sections 1.25
or 1.28, the total liability of Supplier to Buyer under the
Agreement shall be limited to 100% of the amount of the price for
the specific product(s) which gives rise to or is the subject of the
claim, breach or failure; except for any instance of non-delivery of
a product or inoperability of the major hardware component parts,
such as CPU's, Disks, CD-ROM, DAT Drive, WWVB Clock, FE 56 and
PCB's, CLU & PCB, tape interface modules, port selectors, and BX.25
PCBs (collectively referred to as "Major Hardware Components"),
resulting in an inability to use the system of which it is a part,
in which case the total liability of Supplier shall be 150% of the
price paid for the product or Major Hardware Component not delivered
or inoperable.
1.27 INDEPENDENT CONTRACTOR
----------------------
Supplier shall perform hereunder as an independent contractor and
nothing herein shall be construed as creating any other relationship
between the parties hereto including, but not limited to,
partnership, agency or joint venture. Neither Supplier nor
Supplier's subcontractors nor the employees of any of them shall be
deemed for any purpose to be employees of Buyer. Accordingly,
neither Supplier nor Supplier's subcontractors nor their employees
shall be entitled as a result of this Agreement to any of the
benefits under any employee benefit plan Buyer presently has in
effect or may put into effect. Supplier and Supplier's
subcontractors shall be solely responsible for the withholding or
payment of all applicable federal, state and local personal income
taxes, social security taxes, and other payroll taxes with respect
to their employees, as well as any taxes or contributions imposed by
applicable state unemployment or workers' compensation act(s).
Supplier has sole authority and responsibility to hire, fire and
otherwise control its employees.
00
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Supplier shall either obtain an Employer Identification Number from
the federal government (and, where appropriate, local government) or
file appropriate notification of self-employed status with the
federal (and, where appropriate, state and local) taxing agencies
and shall provide Buyer a copy thereof upon request. Supplier shall
maintain such employer status throughout the term of this Agreement.
1.28 INFRINGEMENT
------------
Supplier shall defend, indemnify and hold harmless Buyer and its
corporate affiliates from and against any suits, claims, actions,
losses, damages, expenses (including attorney's fees and costs) or
liabilities that may result by reason of any alleged violation,
infringement or misappropriation of a United States patent, trade
secret, copyright, or other proprietary right based on Buyer's use
of any Goods and/or Software or the performance and receipt of
Services (including any materials and/or equipment utilized or
supplied in the performance of such Services) provided under this
Agreement. Buyer shall promptly notify Supplier of any claim of
infringement, violation or misappropriation for which Supplier is
responsible and shall cooperate with Supplier to facilitate the
defense or settlement of any such claim. Supplier or Supplier's
attorney(s) shall keep Buyer reasonably apprised of the continuing
status of the claim, including any lawsuit resulting therefrom, and
shall permit Buyer, upon Buyer's written request, to participate in
the defense or settlement of such claim. If the indemnifying party
denies that an infringement of a patent(s) has (have) occurred, it
shall, upon written request of the indemnified party, provide to the
indemnified party a written, competent opinion of counsel concluding
that there is no infringement or that the patent(s) asserted is
(are) invalid.
If the use of Goods, Software or Services shall be prevented or
appears likely to be prevented by court order or settlement
resulting from any such claim, Supplier shall, at its expense,
either: (a) by license or release from claim of violation,
infringement or misappropriation, procure for Buyer the right to
continue using such Goods or Software or receiving such Services; or
(b) modify any such Goods and/or Software or Services so that they
are functionally equivalent to the original Goods and/or Software or
Services, but are no longer subject to a claim of violation,
infringement or misappropriation; or (c) remove such Goods or
Software from the premises of Buyer and replace same with equally
suitable substitute goods or software free from claim of
infringement or misappropriation, or (d) if none of the foregoing
alternatives is reasonably available to Licensor, refund the license
fee of the Software to Licensee and accept its return. Licensor's
refund of the
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license fee under this Section shall not constitute an election of
remedies by Licensee or otherwise limit the rights and remedies
available to Licensee under this Agreement. Unless otherwise agreed
in writing by Buyer, Supplier shall use its commercially reasonable
best efforts to procure the right for Buyer to use the Goods,
Software or Services as provided in (a) above.
The provisions of this Section shall survive the expiration or
termination of this Agreement and the pertinent Order.
1.29 INSOLVENCY
----------
If Supplier becomes insolvent; if a receiver of Supplier's assets is
appointed; if Supplier takes any step leading to its cessation as a
going concern; or if Supplier either ceases or suspends operations
for reasons other than a force majeure, then Buyer may immediately
terminate this Agreement and/or any Order(s) hereunder on written
notice to Supplier unless Supplier immediately gives adequate
assurance, satisfactory to Buyer, of the future performance of this
Agreement or such Order(s).
If bankruptcy proceedings are commenced with respect to Supplier and
if this Agreement has not otherwise terminated, and Supplier has
failed to perform, then Buyer max' suspend all further performance
of this Agreement or any Order(s) hereunder until Supplier assumes
and provides adequate assurance of future performance or rejects
this Agreement or such Order(s) pursuant to (S)365 of the Bankruptcy
Code or any successor provision. Any such suspension of further
performance by Buyer pending Supplier's assumption or rejection will
not be a breach of this Agreement and will not affect Buyer's right
to pursue or enforce any of its rights under this Agreement or such
Order(s) or otherwise.
1.30 INSPECTION
----------
Ordinarily, shipments will be made without Buyer's or its agent's
inspection at the source. However, Buyer reserves the right to
inspect any Goods prior to shipment upon twenty-four (24) hour
written notice to Supplier. In such event, Supplier shall notify
Buyer's agent or, if unknown, Buyer (at 847-248-8851), that the
Goods are ready for inspection at the source. Supplier shall make
available, without charge, any production testing facilities and
personnel required by Buyer or its agent to inspect the Goods.
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1.31 INSURANCE
---------
Supplier shall maintain during the term of this Agreement: (a)
Workers' Compensation insurance as prescribed by the law of the
state in which Supplier's obligations under this Agreement are
performed, (b) Employer's Liability insurance with limits of at
least $2,000,000 for each occurrence, (c) Commercial General
Liability insurance (including but not limited to contractual and
products liability coverage) with combined single limits for each
occurrence of at least $3,000,000, and (d) if the use of motor
vehicles is required, Commercial Automobile Liability insurance
(including hired and nonowned coverage) with combined single limits
for each occurrence of at least $3,000,000 for bodily injury and
property damage. Neither Supplier nor Supplier's insurer(s) shall
have a claim, right of action or right of subrogation against Buyer
based on any occurrence insured against, in whole or in part, under
the foregoing insurance. Supplier's policy shall be endorsed to name
Ameritech Corporation. and its affiliates as additional insureds and
state "Ameritech Services, Inc. is to be notified in writing at
least sixty (60) days prior to cancellation of or any material
change in this policy." Supplier shall furnish a copy of the
endorsement and certificates evidencing the foregoing insurance
prior to performance hereunder and annually thereafter during the
term of this Agreement. Supplier's purchase of insurance shall not,
in any way, limit Supplier's liability under this Agreement.
1.32 INVOICING
---------
Supplier shall send invoices to the address specified in the Order
and rendered as follows:
A. Engineering -
100% upon Buyer's receipt of site-specific documentation.
B. Goods -
100% upon shipment of the Goods where Supplier does not
perform installation Services.
C. Software -
100% upon Supplier's shipment of the Software.
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D. Installation Services -
100% upon Buyer's acceptance of the Services via Buyer's
execution of its Certificate of Acceptance.
E. Support Services -
An annual Software Support payment is due and payable
100% each January, unless otherwise specified per the
applicable Order.
Invoices shall contain the following applicable information: this
Agreement number; Order number; item number; Order date; invoice
date; invoice number; itemized description of the Goods, Software,
and/or Services; quantity, unit, unit price; total price; Continuing
Property Record (CPR) and Common Language--Equipment Identification
(CLEI) codes; remittance address; and payment terms. Supplier shall
include as a separate line item on the invoice prepaid
transportation charges that are to be charged back on the invoice
and shall furnish the supporting transportation bills with the
invoice.
1.33 JOINT WORK PRODUCT
------------------
The Agreement is the joint work product of the parties. For
convenience it has been drafted in final form by Buyer; accordingly,
in the event of any ambiguities, no inferences shall be drawn
against either party.
1.34 MARKING
-------
In addition to any marking otherwise required herein, Goods
furnished hereunder shall be marked, at no additional charge, in
accordance with the requirements set forth in the following Bellcore
documents and any revisions thereto:
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GR383, Issue I, dated July 1997, Generic Requirements for
------------------------
Common Language Bar Code Labels;
--------------------------------
GR485, Issue 2, dated October 1995, Common Language CLEI Code
-------------------------
Assignment and Equipment Marking Requirements; and
----------------------------------------------
TR-EOP-000316, Issue 1, dated December 1986, Vendor/BOC
----------
Information Requirements for Servicing Defective Units
------------------------------------------------------
through the NPIAC.
------------------
Supplier shall, at no additional charge to Buyer, show, as
applicable, Buyer's Product Identifier (PID), a nine-digit number
for Goods, on all preliminary and final packaging and packing slips,
in addition to any other identification which might be requested by
Buyer. The PID shall be marked above the description of Goods and in
the same size print used to describe the Goods.
All Goods furnished hereunder shall be marked for identification
purposes with Supplier's coded name, model, serial number and month
and year of manufacture.
All packages containing circuit packs which are sensitive to
electrostatic discharge shall have warning labels. The labels shall
indicate that special handling is required.
Supplier shall remove any identification of Ameritech Services, Inc.
or any of the Affiliates from the Goods prior to any sale, use or
other disposition of Goods rejected, returned or not purchased by
Buyer.
1.35 MINORITY / WOMEN OWNED ENTERPRISES
----------------------------------
It is Buyer's policy that minority and women owned business
enterprises should have the maximum opportunity to participate in
the performance of its contracts. Supplier shall use diligent
efforts to further this policy by awarding subcontracts to minority
and women owned business enterprises or by using such enterprises to
provide goods and services incidental to this Agreement, with a goal
of awarding at least 5% of the contract price to such enterprises.
Upon request, Supplier shall furnish appropriate information about
its efforts to achieve this goal, including the identities of such
enterprises and amounts involved.
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1.36 REPORTS
-------
Supplier shall provide to Ameritech Services, Inc., quarterly
reports containing the following information for the preceding
quarter:
Buyer's name, Order number, description of Goods, Software and
Services, price per unit, total price. Reports are to be sent to:
Ameritech Services, Inc.
0000 Xxxx Xxxxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxxxx, Xxxxxxxx 00000-0000
Attn: Xxxxx X. Xxxxx
Location 3A29D
1.37 MOST FAVORED CUSTOMER
---------------------
Supplier warrants that the prices for Goods, Software and Services
provided to Buyer under this Agreement and the terms and conditions
of this Agreement are not, at the date of order and shall not,
during the six month period following an Order, be less favorable
than the price and/or terms and conditions to any of Supplier's
other customers with respect to the same or like goods, software or
services in equal or less quantities. In the event Supplier offers,
during the term of this Agreement, lower prices and/or more
favorable terms and conditions to any such customer with respect to
the same or like goods, software or services than are offered to
Buyer, Supplier shall reduce the prices hereof correspondingly
and/or shall extend such terms and conditions to Buyer.
1.38 NEW OR CHANGED ROUTINES, PROCEDURES OR SERVICES
-----------------------------------------------
Supplier shall not implement or distribute to the Affiliates any
information regarding new or changed routines, procedures, or
services for Goods purchased or Software licensed under this
Agreement without sixty (60) days prior written notice to Ameritech
Services, Inc.
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1.39 NEW EQUIPMENT, SOFTWARE, FUNCTIONALITIES AND FEATURES
-----------------------------------------------------
In the event at any time during the term of this Agreement Supplier
develops new equipment or software which is substantially similar to
any Goods or Software provided under this Agreement or any previous
agreement between Supplier and Buyer develops any modification,
upgrade or enhancement which provides additional or enhanced
functionalities and/or features for the Goods or Software provided
under this Agreement or any previous agreement between Supplier and
Buyer (any of the foregoing referred to as "Evolutionary Product")
and where any such Evolutionary Product is to be used primarily by
Supplier or Supplier's affiliate(s) in the provision directly by
Supplier or Suppliers affiliate of revenue-producing telephone
service via such Goods or Software to customers in the United States
and the Supplier or Supplier's affiliate provides such service as a
"Common Carrier" under the 1934 Communication Act, as amended
("Revenue Producing Service"), then Supplier shall make the
appropriate Evolutionary Product available to Ameritech Services.
Inc. and the Affiliates at the same time as such Evolutionary
Product is made generally available for such Revenue Producing
Service to Supplier's affiliate. Such Evolutionary Product shall be
provided at prices and/or fees negotiated in good faith, in
accordance with the terms and conditions of this Agreement.
Notwithstanding the foregoing, this provision shall not in any way
be applicable to any Evolutionary Product that is funded by a third
party or custom developed for a third party or where Supplier or
Supplier's affiliate does not have the legal right to provide such
Evolutionary Product to Buyer.
For purpose of this Clause, the term "Supplier's Affiliate" shall
mean (Supplier's name) or any corporation, company or other entity
doing business in the United States in which (Supplier's name) owns,
directly or indirectly, through a chain of such ownership, greater
than fifty percent (50%) of the outstanding shares or securities
representing the right to vote in the election of directors or other
managing authorities.
This Clause shall no longer apply in the event that there is a
merger, dissolution or liquidation, where the Supplier is not a
surviving party to such merger, dissolution or liquidation.
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1.40 NONWAIVER
---------
Failure of either party to insist on performance of any provision,
term or condition of this Agreement or to exercise any right or
privilege hereunder shall not be construed as a waiver of such term,
condition, right or privilege in the future.
1.41 NOTICES
-------
Except as otherwise expressly provided herein, any notice or demand
which under the terms of this Agreement or under any statute must or
may be given or made by any party hereunder shall be given or made
by a reputable express delivery service or by certified or
registered mail addressed to the appropriate party or parties.
Notices will be deemed to have been received as of the earlier of
the date of actual receipt or, in the case of notices sent via U.S.
mail, three (3) days after mailing. A signed receipt shall be
obtained where a notice is delivered in person.
1.42 ORDERING PROCEDURES
-------------------
During the term of this Agreement, Buyer or an Affiliate may
purchase Goods, Software, and/or Services by issuing an Order to
Supplier, and Supplier shall provide the Goods, Software and/or
Services set forth on any such Order. Each Order issued by Buyer or
an Affiliate shall refer to, incorporate and be subject to the terms
and conditions of this Agreement. The terms and conditions of this
Agreement shall supersede any conflicting preprinted terms and
conditions on an Order or on Supplier's quotation, acknowledgement,
invoice or similar documents. No prepayment or minimum ordering
quantities or amounts shall apply to any Order and Orders shall be
in writing.
Orders shall specify as applicable, (a) description of Goods and/or
Software, inclusive of any numerical/alphabetical identifications;
(b) description of the Services; (c) required delivery and/or
completion date(s); (d) location to which the Goods and/or Software
are to be shipped and/or location at which Services are to be
performed; (e) location(s) to which documentation is to be
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shipped; (f) location to which invoices shall be rendered for payment; (g)
Buyer's Order number; (h) prices, Buyer's Request for Proposal Number or
Supplier's FPQ Number, as appropriate; (i) this Agreement number; (j)
description and serial number, if known, of the specific equipment or site for
which Software is being furnished; and (k) any Materials to be provided by Buyer
and the location to which said Materials are to be shipped.
Buyer may at any time require additions, alterations, deductions or deviations
to an Order. Such changes and any adjustment resulting from such changes
including, but not limited to, schedules and prices, shall be mutually agreed
upon and subsequently detailed in a written revision to the original Order. Any
such change shall not result in a price increase unless such change results in
additional costs for Supplier, which shall be substantiated by Supplier.
Orders placed hereunder that are not electronically transmitted shall be sent to
the following address:
Axiom, Inc.
0000 Xxxxxxxxx Xxxxx
Xx. Xxxxxx, Xxx Xxxxxx 00000
A. EF&I, F&I, and E&F Orders:
Supplier shall acknowledge receipt of Buyer's Order within ten (10)
workdays of receipt of such Order. Supplier shall accept or reject,
in writing, Buyer's Order within four (4) weeks (three (3) weeks for
F&I Orders) from receipt of the Order or four (4) weeks prior to the
ship date, whichever is earlier. Supplier shall promptly notify
Buyer whenever it cannot meet the specified delivery and/or
completion date(s). Buyer and Supplier, at Buyer's option, may
negotiate new delivery and/or completion date(s) mutually acceptable
to both parties, which date(s) shall be acknowledged in writing by
Supplier within five (5) workdays of such agreement; absent any such
negotiations for a new date or an agreement by both parties for a
new date, Buyer's Order shall be deemed null and void.
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Should Buyer require Supplier's acceptance or rejection of an Order
in less than the applicable period specified above, Supplier shall
use its best efforts to respond within the interval requested by
Buyer.
Supplier shall provide an FPP within two to four (2 - 4) weeks of
receipt of all EF&I, F&I, and E&F Orders, but no later than five (5)
weeks prior to the scheduled ship date. In the event the FPP differs
from any previous FPQ (such difference shall be substantiated by
Supplier) or if an FPQ has not been previously provided to Buyer,
Buyer shall have up to four (4) weeks following receipt of the FPP
to accept or reject said FPP and notify Supplier accordingly. In the
event Buyer rejects Supplier's FPP and Buyer and Supplier are unable
to subsequently agree to a revised FPP, then the Order shall be
deemed null and void.
B. Furnish Only Orders:
Within five (5) workdays after Supplier's receipt of Furnish Only
Orders, Supplier shall, in writing, accept or reject the Order. In
the event Supplier fails to accept or reject any such Order within
the aforesaid period, such Order shall be deemed accepted. Supplier
shall promptly notify Buyer whenever it cannot meet the specified
delivery date. Buyer and Supplier, at Buyer's option, may negotiate
a new delivery date mutually acceptable to both parties, which date
shall be acknowledged in writing by Supplier within five (5)
workdays of such agreement; absent any such negotiations for a new
date or an agreement by both parties for a new date, Buyer's Order
shall be deemed null and void.
C. Installation Orders:
Prior to placement of an Installation Order, Buyer shall provide
Supplier its installation specifications and requirements and the
required job start and completion dates. Within two (2) weeks of
Supplier's receipt of such information, Supplier shall, in writing,
respond to Buyer's request. Supplier's response shall contain firm
prices for the installation Services requested by the Buyer.
Supplier shall notify Buyer whether Supplier can meet the specified
completion date and, in the event it cannot do so, Buyer and
Supplier, at Buyer's option, may negotiate a new completion date,
acceptable to both parties. In the event Supplier advises it cannot
perform the requested Services, Supplier shall return all
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Buyer's installation specifications and requirements
within ten (10) workdays of such response.
Buyer shall have up to four (4) weeks following receipt
of Supplier's response to accept said response. Buyer's
acceptance will be confirmed by placement of an Order
during this four (4) week period. Supplier shall
acknowledge receipt of said Order within ten (10)
workdays following placement of said Order. In the event
Buyer notifies Supplier that Buyer will not place an
Order, Supplier shall return all Buyer's installation
specifications and requirements within ten (10) workdays
of such notification.
1.43 PACKING AND SHIPPING
--------------------
Goods and Software furnished or required hereunder shall be packed,
marked and shipped by Supplier, at no additional charge, in
containers which are suitable for prevention of damage under normal
handling during loading/unloading, shipping and storage and in
accordance with the requirements of the carrier and the
specifications of Buyer. Buyer's specifications include Ameritech
document SHP92706AM, Issue 1, dated May 1988, Packing, Packaging and
-------------
Palletization, and Bellcore document TR-TSY-000081, Issue 1, dated
-------------
December 1984, Packaging, Packaging Palletization and Marking
----------------------------------------------
Requirements as such documents may be revised from time to time. In
------------
the event of a conflict or inconsistency between TR-TSY-000081 and
SHP92706AM, SHP92706AM shall prevail. Furthermore, Goods, as
applicable, shall be protected against electrostatic discharge in
accordance with the handling and packing requirements in Belleore
document TA-TSY-000870 Issue 1, dated April 1988, Electrostatic
-------------
Discharge Control in the Manufacture of Telecommunications
----------------------------------------------------------
Equipment.
-----------
Supplier shall ship Goods and Software in the quantities and at the
times specified by Buyer, unless otherwise agreed upon, in
accordance with the routing instructions given by Buyer. Supplier
shall combine all same day shipments to the same destination and
shall xxxx the shipping label with the destination exactly as shown
in the Order. Use the value resulting in the lowest charge where
rate is dependent on released value. Do not insure. The Order Number
shall be marked on all packages, shipping papers, and subordinate
documents. A packing memorandum must accompany each shipment, and
when more than one package is shipped, the one containing such
memorandum must be identified.
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1.44 PAYMENT
-------
Payment of invoices shall be due forty five (45) days after receipt
of an invoice properly rendered and in keeping with the terms and
conditions set forth at 1.44, 4.3 and 7.4 of this Agreement;
provided, however, that Buyer may withhold payment of any invoice
for a partial shipment of an Order if a delay in the shipment of the
remainder of the Order causes a delay in the completion date or
precludes Buyer's use of the already delivered Goods or Software
under such Order.
1.45 PUBLICITY
---------
Supplier shall not identify, either expressly or by implication,
Buyer or its corporate affiliates, use any of their trademarks,
trade names, service marks or other proprietary marks, or reference
this Agreement in any advertising, press releases, publicity matters
or other promotional materials without the prior written permission
of Ameritech Services. Inc.
1.46 REGULATORY PROCEEDINGS
----------------------
If requested by Buyer, Supplier will provide information concerning
this Agreement and purchases hereunder which Buyer requires to
respond to regulatory requests and proceedings.
1 47 RELIABILITY
-----------
Goods and Software furnished hereunder shall meet the reliability
standards specified in Supplier's published technical
specifications; provided, however, such standards shall not be less
than the reliability standards specified in the Bellcore documents
listed in Appendix 4, attached hereto and incorporated herein, as
such documents may be revised from time to time. In the event any
such reliability standards are not maintained, in addition to all
other remedies available to Buyer, Supplier shall repair or replace
the affected Goods and correct the affected Software at no charge to
Buyer during the applicable Warranty Period.
1.48 REMEDIES
--------
The rights and remedies herein provided shall be cumulative and
shall be in addition to any other remedies available at law or in
equity.
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1.49 SERVICES PERFORMED ON BUYER'S PREMISES
--------------------------------------
Supplier shall be solely responsible for all personnel furnished by
Supplier working in harmony with all other persons when Supplier is
performing Services on Buyer's premises. Supplier shall comply with
all Buyer's rules and regulations and any governmental security
requirements while on Buyer's premises. Supplier shall not interfere
with Buyer's operations or unreasonably encumber Buyer's premises
with any material, equipment, vehicles, waste materials or rubbish.
Supplier's personnel shall be limited to the immediate area of the
Services.
If any part of the Services performed by Supplier under an Order is
dependent upon work done by others, Supplier shall inspect such
other work and promptly report to Buyer any defect that renders such
other work unsuitable for Supplier's proper performance of its
Services. Supplier's silence shall constitute approval of such
other work as fit, proper and suitable for Supplier's performance
of the Services under such Order.
1.50 SEVERABILITY
------------
If any provision of this Agreement shall be held invalid or
unenforceable, such provision shall be deemed deleted from this
Agreement and replaced by a valid and enforceable provision which so
far as possible achieves the same economic and other benefits for
the parties as the severed provision was intended to achieve, and
the remaining provisions of this Agreement shall continue in full
force and effect.
1.51 SPECIFICATIONS FOR GOODS AND SOFTWARE
-------------------------------------
Goods and Software furnished hereunder shall conform to Supplier's
published technical specifications, literature and documentation in
effect on the date of this Agreement as such specifications,
literature and documentation may be modified in accordance with the
provisions in this Agreement, provided that the Goods and Software
conform to and are in compliance with the requirements in the
Ameritech and/or Bellcore documents listed in Appendix 4.
31
1.52 SUBCONTRACTORS
--------------
No provisions of this Agreement or of any agreement between Supplier
and any subcontractor shall be construed as an agreement between
Buyer and any subcontractor. Supplier shall be as fully responsible
to Buyer for the acts and omissions of any of Supplier's
subcontractors or of any other contractors engaged by the
subcontractor, as Supplier is for the acts and omissions of
Suppliers own employees.
Any agreement Supplier enters into with a subcontractor for any
Services to be provided hereunder shall be in writing and signed by
Supplier and the subcontractor, and it shall set forth the agreement
of the subcontractor to comply with the requirements set forth in
the COMPLIANCE WITH LAWS Clause and all other applicable
requirements and specifications set forth herein. Supplier's
subcontractor shall maintain such insurance as will adequately
protect the subcontractor against any loss, damage, claim or
liability resulting from its performance hereunder including, but
not limited to, Workers' Compensation, Employer's Liability,
Commercial Automobile Liability, and Commercial General Liability
insurance. Supplier shall indemnify Buyer against all loss, cost,
expense or liability incurred by Buyer on account of Supplier's
failure to secure such written agreement by each subcontractor.
1.53 SURVIVAL OF OBLIGATIONS
-----------------------
The parties' obligations under this Agreement and/or any Order
placed hereunder which by their nature are intended to continue
beyond the termination or expiration of this Agreement shall survive
the termination or expiration of this Agreement.
1.54 TAX
---
Federal manufacturers or retailers excise taxes, and state and local
sales or use taxes, when applicable, shall be billed as separate
items on Supplier's invoice. If indicated on the Order, Goods
purchased hereunder are tax exempt under one of the following tax
exempt certificate numbers:
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Illinois, 17097312; Indiana, 003228312-001-7; Michigan, 00-0000000;
Ohio, 99-029467 or 98-001120; and Wisconsin, 368774.
Supplier shall pay taxes as determined by shipment destinations
specified in Buyer's Orders. In the event Buyer elects to contest,
to the extent permitted by applicable law, the nature or extent of
taxes paid on its behalf by Supplier, Supplier hereby assigns and
transfers to Buyer and authorizes Buyer to subrogate to all rights,
claims, interests and rights of action that Supplier may have
against any taxing authority for refund of any taxes paid. Supplier
authorizes Buyer to xxx, compromise or settle in Supplier's name and
Buyer is fully substituted for Supplier and subrogated to all of
Supplier's rights with respect to obtaining refund of such taxes. It
is agreed that any action taken by Buyer for refund of such taxes
shall be at Buyer's expense, provided that Supplier shall reasonably
assist Buyer therein if requested by Buyer.
1.55 TECHNICAL AUDIT FOR SOFTWARE FEATURE(S)
---------------------------------------
Supplier agrees to furnish, at no charge, all documentation
associated with the results of distributable Bellcore and/or
independent assessment on Technical Audits conducted on all new
Software features funded by Supplier. Said documentation will be
furnished to Buyer, within ten (10) working days of deployment of
such Software as part of a First Office Application (FOA) or no
later than ten (10) working days before the general availability
(GA) release of such Software, whichever comes first.
All Technical Audit results should be sent to:
Ameritech Network Services
Vendor Relations Manager
Xxx. 0X00
Xxxxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxxxx, XX. 60196-1025
33
1.56 TERMINATION OF AN ORDER FOR CONVENIENCE
---------------------------------------
Buyer may at any time, up to ten days before the scheduled shipment
date, terminate any Order placed hereunder, in whole or in part, by
written notice to Supplier, for any or no reason. Buyer shall notify
Supplier as soon as Buyer knows of the need to terminate any Order
or portion thereof. In the event that Supplier has initiated work to
fill said Order, Supplier shall attempt to obtain another Buyer for
the Order for a period of thirty (30) business days. In the event
that Supplier is unable to obtain another Buyer for said order,
Buyer shall be responsible to reimburse Supplier for all costs
incurred to fill the Order, up to and including the date of Buyer's
notification of termination. Should this occur, Supplier shall
submit an invoice to Buyer for all costs, along with verification of
those costs.
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ARTICLE TWO
SUPPORT AND WARRANTIES
2.1 CHANGES TO GOODS
----------------
In the event any Product Change affects price, operation,
reliability or life of the Goods or the interchangeability of the
Goods with other goods, Supplier shall notify Buyer in writing
thereof not less than ninety (90) days prior to any planned change,
and in the event Buyer and Supplier fail to reach agreement thereon
Buyer shall have the right to terminate any and all Orders, in whole
or in part, for the Goods affected by such change. Notwithstanding
any notice requirement above to the contrary, Supplier shall
immediately notify Buyer when it determines that a Class A Product
Change (as defined hereinafter) shall be made.
Notwithstanding any notice requirements to the contrary elsewhere in
this Agreement, Product Change Notices for all changes that may
impact system functionality shall be provided, at no charge, to the
individuals designated in Appendix 5, attached hereto and
incorporated herein (Buyer reserves the right to revise such
designees at any time upon proper notice to Supplier). Product
Change Notices shall contain all the information set forth in
Appendix 5 (Supplier may copy and use the form, Product Change
Notice, contained in said Appendix). If Supplier cancels a Product
Change Notice, Supplier must so notify the individuals designated in
Appendix 5 hereto and state the reason for cancellation and what
action, if any, is to be taken in locations where the change may
already have been implemented.
Supplier shall determine the classification of any proposed Product
Change. In the event that Buyer and Supplier fail to reach agreement
on any such classification, then Buyer shall have the right to
terminate any or all Orders, in whole or in part, for Goods affected
by such Product Change without penalty or obligation of any kind.
A. Class A Product Change
Class A Product Changes are changes required to correct
a product deficiency (e.g., safety or fire hazard,
electrically or mechanically inoperative, unsatisfactory
operation, design
00
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defects, product does not operate as documented). Class A Product Changes
require appropriate and timely action, ensuring ongoing system functionality by
the Supplier to correct all affected Goods, whether in the hands of Supplier or
Buyer, including spare Goods. In some cases, however, it may be necessary to
make a change to only a limited number of a particular type of product. (This
occurs when it is necessary to correct a condition that occurs only in certain
product combinations or with the use of certain options). Such conditions shall
be described in the Product Change Notice.
Supplier shall, no later than thirty (30) days from the date of the notification
of a Class A Product Change, provide a schedule, acceptable to Buyer, for
promptly implementing, at Supplier's expense, such changes with respect to Goods
in Buyer's possession. Such implementation shall include the deinstallation, if
necessary, of existing Goods and the engineering and installation of replacement
or modified Goods or any additional materials. Such obligation shall apply to
all Class A Product Changes made within ten (10) years from the effective date
of this Agreement or five (5) years from the date of shipment hereunder of the
affected Goods, whichever is longer.
For Class A Product Changes which involve only an exchange of circuit packs,
Supplier may, at Buyer's option, provide such circuit packs and Buyer shall
implement such change. Unless otherwise agreed to between the parties, Supplier
shall not furnish component parts for Class A Product Changes to Buyer for
Buyer's assembly into circuit packs or printed wiring boards.
Supplier shall furnish quarterly status reports to Buyer for all Class A Product
Changes of which Supplier has notified Buyer. This report shall contain the
following information:
- Product Change Notice Number
- Identity of the Goods
- Model or part number and issue
- CLEI code, if applicable
- Date Product Change Notice issued
- Product ship date
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- Installation or application responsibility
- Locations at which change is to be made, (if the
Supplier maintains these records)
- Date completed, by location
- Changes on hold at any location
B. Class B Product Change
Class B Product Changes are changes made to incorporate improvements
in design resulting in better operation, improved testing, better
maintenance, longer life, service improvements, cost reductions,
addition of essential features, and the like.
All Goods shipped to Buyer after the effective date of any Class B
Product Change shall incorporate such change. Any Goods shipped to
Buyer prior to such date may be modified by Buyer at its option and
expense.
C. Class D Product Change
Class D Product Changes are design improvements, component changes,
new features, or other minor improvements not sufficiently
significant as to require a Class B classification. Class D Product
Changes are also used when a change is required to facilitate
manufacture or to effect a cost reduction not sufficiently important
to justify a Class B classification. Class D Product Changes are
automatically applied to undelivered Goods and are not suggested for
application to Goods previously shipped to Buyer.
If the Goods being changed require a CLEI code change, Supplier
shall contact Bellcore Language Standards Division directly for the
new code. A CLEI code change is required if:
(a) A changed plug-in-product is not bidirectionally
interchangeable physically, electrically or functionally
with its predecessor.
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(b) A manufacturer's part, model, drawing or identification
number is changed for that product.
Any Goods or Services provided to Buyer to effect a Product Change
hereunder shall be warranted in accordance with the provisions in
the WARRANTIES Clause.
2.2 CONTINUING AVAILABILITY OF REPLACEMENT PARTS
--------------------------------------------
Supplier shall offer for sale to Buyer, for a minimum period of ten
(10) years from the effective date of this Agreement, or five (5)
years from the last shipment, hereunder of the affected Goods,
whichever is longer, replacement parts or functionally equivalent
replacement parts for such Goods. During said period, should
Supplier fail to provide said parts or to obtain another source of
supply on terms acceptable to Buyer, then Supplier shall be required
to provide to Buyer, at Buyer's request, the technical information
or any other rights required, so that Buyer is able to obtain
replacement parts on its own or through a third party. The technical
information includes, by example and not by way of limitation: (a)
the most current documentation, including maintenance manuals,
procedures and the like required to perform maintenance; (b)
manufacturing drawings and specifications of raw materials and
components comprising such parts; (c) manufacturing drawings and
specifications covering special tooling and the operation thereof,
and (d) a detailed list of all commercially available parts and
components purchased by Supplier on the open market disclosing the
part number, name and location of the supplier and price lists for
the purchase thereof. Buyer shall not disclose any such technical
information to any third party unless such third party agrees to
enter into a nondisclosure agreement with Buyer.
2.3 DISCONTINUANCE OF GOODS
-----------------------
Notwithstanding the prior termination or expiration of this
Agreement, Supplier shall provide Buyer advance written notice off
six (6) months prior to discontinuing the manufacture of any Goods
covered by this Agreement. Buyer shall have six (6) months from the
end of the six (6) month notification period to place all final
Orders and to take delivery of said Orders.
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2.4 EMERGENCY REPLACEMENT SERVICE
-----------------------------
In the event of an emergency or an out-of-service condition
attributed to Goods furnished hereunder, Supplier agrees, for ten
(10) years from the effective date of this Agreement, or five (5)
years from the last shipment hereunder of the affected Goods,
whichever is longer, to ship functionally equivalent replacement
Goods within twenty-four (24) hours of verbal notification by Buyer.
If replacement Goods will not be available for shipment within
twenty-four (24) hours, Supplier shall notify Buyer immediately by
telephone and (a) arrange with Buyer for an alternate shipping
schedule acceptable to Buyer; (b) telephonically assist Buyer in
repair of the defect; and/or (c) supply field engineering assistance
to restore service. Buyer shall call (000) 000-0000 to obtain
emergency replacement service.
2.5 ENGINEERING COMPLAINTS
----------------------
Buyer may issue to Supplier an engineering complaint to report
unsatisfactory conditions related to the Goods, Software and
Services. Supplier shall take such action as may be necessary to
resolve Buyer's engineering complaint in a timely manner and to
Buyer's satisfaction in accordance with the applicable sections of
Ameritech document AM 000-000-000, Issue E, dated January 1990,
Ameritech Engineering Complaint Practices, as revised from time to
time. Supplier shall promptly acknowledge receipt of Buyer's
engineering complaint no later than seven (7) days from the date of
the engineering complaint and shall indicate in said acknowledgment
the projected date of final resolution of the engineering complaint
(The date of final resolution shall not exceed forty-five (45) days
from the date of the engineering complaint).
Issuance of an engineering complaint shall not be a precondition for
claims under warranty.
2.6 EXTRAORDINARY SUPPORT
---------------------
Notwithstanding the prior termination or expiration of this
Agreement, Supplier shall provide immediate extraordinary support
for Goods and Software furnished hereunder in order to assist Buyer
in restoring service which has been disrupted due to a catastrophic
condition. Such support includes, but is not limited to,
provisioning of materials and/or manpower at the then-current
agreement price or, in the absence of any agreed price, at
Supplier's then-current published prices or a premium price as
mutually agreed. If such condition occurs, Supplier shall waive any
delivery
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schedule priorities to the extent it is reasonably able to do so.
This Clause shall not be construed to require Supplier to maintain
any inventories whatsoever or to maintain any position or status of
readiness to perform in the future.
2.7 INSTALLATION/CUTOVER ASSISTANCE
------------------------------
If requested by Buyer, Supplier shall make available at the
installation site a field engineer to render assistance for
installation/cutover with respect to any Goods and/or Software
ordered hereunder. Such assistance shall be provided by Supplier at
the agreed upon rates reflected in Appendix 1, of this Agreement.
2.8 RADIO FREQUENCY ENERGY STANDARDS
---------------------------------
Goods furnished hereunder shall comply, to the extent applicable,
with the requirements of Part 15 of the Federal Communications
Commission's (hereinafter "FCC") Rules and Regulations in effect on
the date of shipment of the Goods. In the event the Goods generate
harmful interference to radio communications in violation of Part
15, Supplier shall provide Buyer with information relating to
methods of suppressing such interference. If such interference
cannot be suppressed during the ninety (90) day period after the
Goods are placed into service, Supplier shall, upon request by
Buyer, accept return of the Goods and render to Buyer a full refund
of the purchase price for the Goods together with any engineering
and/or installation charges. Supplier shall be responsible for
removal of such Goods and restoration of the site and records to
their original condition. Nothing herein shall be deemed to diminish
or otherwise limit Supplier's obligations under the WARRANTIES
Clause.
2.9 REGISTRATION
------------
If Goods furnished hereunder are subject to Part 68 of the FCC's
Rules and Regulations, such Goods shall be registered under and in
compliance with Part 68 including, but not limited to, all labeling
and customer instruction requirements to the extent applicable on
the date of shipment.
2.10 RETURN OF GOODS
---------------
Surplus Goods resulting from Supplier's overshipments to Buyer or
performance of engineering and/or installation Services hereunder
shall be returned to Supplier. Buyer shall promptly notify
40
Supplier of receipt of surplus Goods, and Supplier shall render Buyer a
full refund or credit for such Goods for which payment has been made.
Supplier shall bear risk of loss and damage and pay transportation charges
for the return of such Goods.
2.11 TECHNICAL SUPPORT
-----------------
For a minimum period often (10) years from the effective date of this
Agreement, or five (5) years from the last shipment hereunder of the
affected Goods, whichever is longer. Supplier shall provide Buyer ongoing
technical support for such Goods by making a qualified technician available
via telephone, seven (7) days-a-week, twenty-four (24) hours-a-day; Buyer
shall call (000) 000-0000 for such technical support. Supplier shall notify
Buyer in writing of any change to such telephone number. When required,
Supplier shall provide field assistance to resolve any problem. Supplier
shall provide such technical support at Supplier's then-current "Most
Favored Customer" prices.
2.12 WARRANTIES
----------
A. Supplier warrants to Buyer that:
Supplier shall convey good and valid title to the Goods; the Goods and
Services shall be provided free and clear of any liens or
encumbrances; and use of the Goods, Services and Software shall not
infringe any United State patents, copyrights or other proprietary
rights.
During the Warranty Period, the Goods shall be free from defects in
design, material and workmanship; shall conform to and perform in
accordance with all applicable supplier published specifications and
the mutually agreed requirements herein and Supplier's written
representations; and shall function properly when installed.
During the Warranty Period, the Software shall conform to and perform
in accordance with all applicable specifications; as described in the
"Product Release Notice," for the current release in use by Ameritech,
and shall be capable of operating fully and correctly with the
Supplier provided Goods acquired hereunder or the Supplier provided
equipment for which the Software is furnished.
00
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Supplier shall have the right and power to grant any Software license
rights granted hereunder to Buyer; shall not have entered into
agreements or commitments which are inconsistent with or conflict with
such Software license rights; Buyer shall have quiet enjoyment and use
of the Software as long as such license rights shall remain in effect;
and, Buyer complies with all terms and conditions of such Software
license.
Services shall be performed in a safe, good and workmanlike manner in
conformity with all applicable specifications and requirements and in
accordance with applicable professional standards.
B. The term Warranty Period, as used herein, means the period of time
listed below:
Goods twelve (12) months
Software twelve (12) months
Services twelve (12) months
C. The Warranty Period shall commence as follows:
For Goods and/or Software installed by Supplier, upon Buyer's
acceptance via its Certification of Acceptance which shall be when
installation is complete, equipment is turned-up into production mode
and functioning properly in accordance with product specifications.
For engineering and/or installation Services performed in connection
with EF&I, F&I, and Installation Orders, upon Buyer's acceptance via
its Certification of Acceptance;
For engineering Services performed in connection with an E&F Order,
upon Buyer's acceptance of the Goods furnished thereunder, and
For all other Services, upon Buyer's acceptance of the Services.
D. All repairs of or replacements for Goods still under warranty
hereunder shall be warranted, as provided in this Clause, from the
date the repaired or replacement Goods are received by Buyer for the
remainder of the original unexpired Warranty Period (calculated from
the
00
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date the defective Goods were shipped to Supplier) or for a period of
ninety (90) days, whichever is longer.
E. Upon Buyer's discovery of a defect during the Warranty Period:
As discussed in Appendix 1 to this Agreement, Supplier shall repair or
replace Goods discovered to be defective without any additional
charge. Buyer shall bear all transportation costs and risk of
intransit loss or damage in connection with all Goods returned to
Supplier and all Goods shipped to Buyer under this Clause. Such repair
or replacement, if required, shall be completed within thirty (30)
days of receipt by Supplier or notification by Buyer, unless Buyer
agrees otherwise. Buyer shall bear the costs associated with removal
of the defective Goods and installation of the repaired or replacement
Goods, including all labor expenses. Buyer shall have the option of
removing the defective Goods and installing the repaired or
replacement Goods or of having Supplier remove the defective Goods and
installing the repaired or replacement Goods consistent with the
pricing reflected in Supplier's price list in Appendix lB of this
Agreement.
Supplier shall, at Buyer's option, promptly reperform Services
discovered defective at no cost to Buyer.
Supplier shall promptly correct any defects discovered in the Software
or related documentation and provide copies of the same at no charge
in accordance with the provisions in the SOFTWARE SUPPORT Clause.
F. All warranties shall survive inspection, acceptance and payment.
G. Except as provided, incorporated into, or referred to in this
Agreement or in an Order, which is accepted by Supplier, there are no
other express or implied warranties applicable to this Agreement.
Supplier and Buyer specifically exclude any implied warranties of
merchantability and fitness for a particular purpose regarding the
hardware, services, or software provided by Supplier hereunder.
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ARTICLE THREE
ENGINEERING SERVICES
3.1 ENGINEERING SERVICES
--------------------
Supplier shall perform engineering Services and provide related
documentation and drawings in accordance with Ameritech document
AM-TR-EEN-000015, Issue 1, dated June 1987, Ameritech Central Office
------------------------
Equipment and Engineering Requirements, as revised from time to time.
--------------------------------------
3.2 ENGINEERING ERRORS
------------------
When Supplier furnishes engineering Services, Supplier shall be responsible
for engineering errors and correct such errors without additional charge to
Buyer. In addition, Supplier shall render Buyer a refund or credit for any
Goods delivered to Buyer as a result of such engineering errors in
accordance with the first paragraph in the RETURN OF GOODS Clause.
3.3 ENGINEERING DRAWINGS
--------------------
Supplier shall furnish all central office base drawings to Buyer within the
periods specified elsewhere in this Agreement; provided that final central
office base drawings shall be provided to Buyer no later than two (2) weeks
after Supplier's issuance of the Completion Report. Whenever engineering
Services result in changes, additions to or removal of existing equipment,
Supplier shall xxxx and return the existing central office base drawings
where Supplier does not perform central office records maintenance
functions for Buyer. Any drawing such as interface drawings prepared by
Supplier as a result of or in contemplation of Services provided under this
Agreement and paid for by Buyer shall be and remain Buyer's property.
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ARTICLE 4
INSTALLATION SERVICES
4.1 INSTALLATION SPECIFICATIONS
---------------------------
Supplier shall perform installation Services and provide related
documentation in accordance with Supplier's installation specifications
and/or the manufacturer's product specific installation manuals. Such
specifications shall comply with the requirements contained in Ameritech
document AT-TR-EEN-000011, Issue G, dated September 1992, Ameritech
---------
Installation Administrative and Workmanship Requirements, as revised from
--------------------------------------------------------
time to time by Buyer. Where Supplier's installation specifications
conflict with the requirements set forth in the above referenced Ameritech
document, Supplier shall promptly notify Buyer's representative, who shall
be responsible for resolving the conflict.
Supplier shall provide Buyer Supplier's pre-installation site preparation
requirements that are to be completed by Buyer. Such requirements shall be
provided to Buyer within a mutually agreed time-frame prior to the ship
date for Goods purchased hereunder or the installation commencement date
for Materials supplied by Buyer.
4.2 CHANGES TO INSTALLATION SERVICES
--------------------------------
Buyer may require additions, alternations, deviations or deductions to the
installation Services specified in any Order placed hereunder. Such changes
and any adjustment to the schedule or prices in the affected Order
resulting from such changes shall be mutually agreed upon and set forth in
a written revision to the original Order. Any such change shall not result
in a price increase unless said change results in additional costs for
Supplier, which shall be substantiated by Supplier.
4.3 TESTING AND ACCEPTANCE
----------------------
Buyer shall have the right to observe all phases of the installation
Services for the purpose of inspecting such Services and Supplier shall
keep Buyer advised of job progress. Unless otherwise specified in an Order,
when in Supplier's opinion it has completed the Services, Supplier or
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Supplier and Buyer, at Buyer's option, shall promptly conduct Supplier's
testing procedures for the Goods and/or Services utilizing the applicable
test sheets. Supplier's testing procedures shall demonstrate that the Goods
conform one hundred percent (100%) to Supplier's technical specifications
on an "end to end" total system basis and/or that the Goods will perform at
one hundred percent (100%) of the engineered load. At such time as all such
testing procedures have been completed to Supplier's satisfaction, Supplier
shall give Buyer written notice thereof via Buyer's Completion Report and
Certification of Acceptance together with copies of its test results.
Upon receipt of Supplier's written notification, Buyer shall have an
acceptance period of thirty (30) days to perform acceptance testing to
verify that the Goods and/or Materials and installation Services comply
with all applicable specifications and requirements. Upon successful
completion of its acceptance testing, Buyer shall promptly provide Supplier
written notice by executing its Certification of Acceptance. Goods and/or
Services shall be deemed accepted on the date specified in the
Certification of Acceptance.
In the event the Goods and/or Services fail Buyer's acceptance testing,
Buyer shall promptly give Supplier written notice of such failure to
conform to the applicable specifications and requirements and specify the
reasons for such failure. Supplier shall promptly correct the deficiencies
in the Goods and/or Services at no additional charge to Buyer. Supplier
shall use diligent efforts to complete the corrections within thirty (30)
days of notice thereof or such longer period as may be mutually agreed
upon. When such deficiencies have been corrected to Buyer's satisfaction,
Buyer shall promptly provide Supplier written notice by executing its
Certification of Acceptance. Goods and Services shall be deemed accepted on
the date specified in the Certification of Acceptance.
In the event Supplier fails to correct any deficiencies by the end of the
initial testing period or any extension thereof, Buyer may, at its option,
terminate its Order for the Goods upon written notice to Supplier, and
Supplier shall promptly remove such Goods.
Whenever Supplier installs Materials provided by Buyer and said Materials
and/or the installation Services fail Buyer's acceptance testing, Buyer
shall promptly give Supplier written notice of such failure. Supplier shall
cooperate with Buyer to determine the cause of such failure. In the event
the Materials are found to be the sole cause of such failure, Buyer shall
promptly provide Supplier written notice of its acceptance of the Services
by executing its Certification of Acceptance. Services shall be deemed
accepted on the date specified in the Certification of Acceptance. On the
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other hand, if the Materials are not the sole cause of such failure,
Supplier shall use diligent efforts to correct the nonconforming Services
within seven (7) days of notice thereof. When such deficiencies have been
corrected to Buyer's satisfaction, Buyer shall promptly provide Supplier
written notice by executing its Certification of Acceptance. Services shall
be deemed accepted on the date specified in the Certification of
Acceptance.
4.4 PREMIUM TIME ALLOWANCES
-----------------------
Premium time allowances and night shift bonuses resulting from Supplier's
performance of installation Services shall be billable to Buyer when such
expenses are necessary due to Buyer's requirements, provided that such
expenses are authorized by Buyer in writing prior to commencement of such
work.
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ARTICLE FIVE
TRAINING SERVICES
5.1 TRAINING PROGRAMS AND MATERIALS
-------------------------------
Supplier shall, if requested by Buyer, train Buyer's personnel in the
operation of Goods and Software provided under this Agreement and shall
provide hands-on, task oriented training programs and materials covering
maintenance, repair, trouble shooting, installation and acceptance testing
of such Goods and Software at a charge to be negotiated, not to exceed
Supplier's then current published prices. All training provided hereunder
shall comply with the requirements set forth in TR-OPT-000839, Issue 3,
dated December 1991, Supplier Provided Training Generic Requirements and
-----------------------------------------------
any revisions thereto.
If requested by Buyer, Supplier and buyer shall negotiate to provide
training services to train the trainer and provide all related instructor
materials and student manuals. Whenever Buyer places an Order for such
training, said Order shall include (a) the requirements for certifying
Buyer's instructor, (b) a list of materials including, but not limited to,
instructor's guide, student manuals, slides, videos and equipment, and (c)
applicable prices.
Whenever Supplier travels to Buyer's location to provide training, unless
otherwise specified in the applicable Order, Buyer shall pay all reasonable
travel and living expenses incurred by Supplier in connection with
Supplier's presentation of such training. Supplier shall make every effort
to obtain the best possible prices for travel and lodging, including, but
not limited to coach class air travel. Such expenses shall be billed at
cost and itemized on Supplier's invoice. Supplier shall furnish adequate
supporting documentation to substantiate such charges. Training shall be
scheduled at times and locations mutually agreed upon by the parties.
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5.2 CERTIFICATES OF COMPLETION
--------------------------
At the completion of a training course, Supplier shall, if requested by
Buyer, inform Buyer in writing of those students who have, in Supplier's
judgment, satisfactorily completed the course and shall furnish Buyer with
a certificate of completion for each individual who satisfactorily
completed the course.
5.3 TRAINING DEVELOPMENT
--------------------
If requested by Buyer, Buyer and Supplier shall negotiate to develop
educational programs, including instructor's manuals and related student
materials, to allow Buyer to train its own employees. Development of such
programs shall be provided at the prices and in accordance with the terms
and conditions agreed upon by Supplier and Buyer in a separate agreement at
the time of such request.
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ARTICLE SIX
REPAIR SERVICES FOR GOODS NOT
COVERED UNDER WARRANTY
6.1 REPAIR/REPLACEMENT OF GOODS
---------------------------
Notwithstanding prior termination or expiration of this Agreement, Supplier
shall provide repair Services for Goods furnished hereunder for a period
often (10) years from the effective date of this Agreement, or five (5)
years from the last shipment, hereunder of the affected Goods, whichever is
longer. Supplier shall ship the repaired Goods within three (3) weeks of
receipt of the defective Goods (with the concurrence of Buyer, repair may
be made on-site by Supplier as scheduled by Buyer). In cases where Goods
require more than three (3) weeks to repair or where Goods are determined
to be beyond repair or repair costs are expected to exceed 50% of the cost
of a replacement, Supplier shall so inform Buyer. At Buyer's option,
Supplier shall (a) sell Buyer a replacement at the then-current agreement
price or at a price agreed upon by Supplier and Buyer; and/or (b) tag the
unrepairable Goods as "JUNK" and return them to Buyer at Buyer's expense
(the term JUNK shall appear on the outside of the package); and/or (c) take
the necessary steps to dispose of the unrepairable Goods, consistent with
sound commercial practices and environmental laws, and pay to Buyer the
salvage value, if any.
Charges for repairs shall be at the then-current agreement price or, in the
absence of any agreed price, at Supplier's then-current published "Most
Favored Customer" prices for such Services thereafter. Buyer shall bear all
transportation costs and risk of in-transit loss or damage in connection
with Goods returned to Supplier under this Clause, and Supplier shall bear
all transportation costs and risk of in-transit loss or damage in
connection with all repaired Goods or replacements shipped to Buyer under
this Clause. Goods repaired hereunder shall be repaired to a good operating
condition and shall be warranted as provided in the WARRANTIES Clause for a
period of ninety (90) days from the date of Buyer's receipt of the repaired
Goods. Replacement Goods shall be warranted as provided in the WARRANTIES
Clause.
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Goods repaired hereunder shall be clearly marked with Supplier's name and logo
and, except in instances where Supplier is providing bar code labeling in
accordance with the technical requirements contained herein, with the warranty
expiration date for said Goods.
It is expressly understood that this Agreement does not grant Supplier an
exclusive privilege to repair any or all of the Goods purchased under this
Agreement and under any previous agreement for which Buyer may require repair.
In the event Buyer elects to have such Goods repaired, altered or in any way
serviced by a third party or if Buyer elects to perform such service within
Buyer's facility and Buyer's use of such Goods which have been repaired, altered
or serviced by such a third party or by Buyer affects in any measurable way the
performance of any Goods or switching systems provided hereunder or under any
previous agreement between Buyer and Supplier, Supplier shall have no liability
whatsoever and Supplier shall have no obligation to accept, at Supplier's Repair
Services Center, any such altered Goods which do not meet the applicable
Bellcore specifications. Notwithstanding the foregoing, in no event shall
Supplier take any steps to prevent any third party from repairing, altering or
otherwise servicing any Goods purchased under this Agreement or any previous
agreement and Supplier shall negotiate in good faith and/or mutually agree to
provide some third party repairers, which have successfully passed Bellcore
audit(s), with components, and documentation (CP schematics) and license
software and upgrades thereto for the purpose of repairing the Goods based on
Supplier's criteria, fees and terms and conditions
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ARTICLE SEVEN
SOFTWARE
7.1 SOFTWARE LICENSE
----------------
Supplier hereby grants to Buyer a perpetual, irrevocable, nonexclusive
license to use, the Software (including Updates to such Software) ordered
hereunder and any subsequent Enhancements ordered hereunder as long as
Buyer is in material compliance with the terms of such license. Buyer shall
have the right to make one archival and backup tape copy of the Software,
which will be updated weekly on tape, provided that Buyer reproduces and
includes any copyright or other proprietary notice on that copy of the
Software.
Supplier shall furnish Buyer all applicable Software documentation prior to
or upon delivery of any Software ordered hereunder at no additional charge
to Buyer.
Notwithstanding documentation distribution requirements in this Agreement
to the contrary, distribution of certain proprietary Software
documentation, including procedural code and developmental documentation
required for development, maintenance, and implementation of source code,
shall be limited to Buyer's employees with a need to know.
7.2 SOURCE CODE ESCROW
------------------
If Supplier already has placed the source code and related Documentation
for Software licensed by Customer into an escrow account pursuant to
Supplier's licensing agreements with other users of the Software, within
ten (10) days of Supplier's receipt of Buyer's payment of the Software
license fee (in the case of a year-to-year license, Buyer's initial annual
payment), Supplier shall add Buyer as a designated beneficiary of said
escrow account and shall inform the escrow agent of Buyer's entitlement to
the source code pursuant to the provisions of the escrow agreement.
Supplier shall provide Buyer with a copy of the escrow agreement, and, if
appropriate, Buyer shall be added as a party to said agreement.
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If Supplier has not placed the Software into an escrow account, if the
existing escrow account does not include each of the provisions set forth
in the remainder of this paragraph, or if Buyer cannot be made a
beneficiary of an existing escrow account, within thirty (30) days of a
written request from Buyer, Supplier shall deposit the source code and
related Documentation for the Software into an escrow account, pursuant to
reasonable and appropriate agreements entered into by and between Supplier,
Licensee, and the escrow agent. At a minimum, the escrow agreements shall
provide that (i) the copy of the source code placed in escrow shall be
reproduced and maintained on magnetic medium compatible with the equipment
on which Buyer uses the Software, (ii) the source code shall be accompanied
by full documentation therefore, and (iii) when a change is made to the
source code during the term of Buyer's license of the Software, the revised
source code, as well as the immediately preceding version of the source
code, shall be deposited into escrow no later than seven (7) days after the
source code has been revised. The escrow agreements shall authorize the
escrow agent to release the versions of the source code held in escrow to
Buyer, without the need for Supplier's concurrence, immediately upon
Buyer's notification to the escrow agent that one of the events set forth
in paragraphs A and B, below, has occurred and Supplier has failed to
immediately provide the source code to Buyer.
Provided that Buyer is not in material default under this Agreement or the
applicable Order, Supplier shall provide Buyer at no charge, with one (1)
complete copy of the then-current source code for Software licensed by
Buyer, along with all of the Documentation therefor, immediately upon the
occurrence of all or any of the following events:
(A) Supplier is in material breach of pursuant Agreement and has been
provided notice of such and has failed to cure such breach within the time
period as stated by the licensing Agreement.
(B) Supplier's failure to continue to do business in the ordinary course.
7.3 STANDARD OF PERFORMANCE
-----------------------
If requested by Buyer, Supplier shall perform tests, which utilize feature
interaction at the engineered full load condition, to demonstrate to Buyer,
----
or its designated agent, verification of the load handling capacity of the
Software prior to delivery. In addition, Supplier shall demonstrate feature
operation that complies with Supplier's technical specifications and the
requirements of an Order.
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7.4 INSTALLATION AND ACCEPTANCE
---------------------------
Upon installation of the Software by Supplier, Supplier shall successfully
conduct all of its own testing procedures on the Software. Upon completion
of Supplier's testing or upon installation by Buyer in the event Supplier
does not install the Software, Buyer may operate and test the Software for
a period of thirty (30) consecutive days or such longer period as may be
mutually agreed upon to verify that the Software runs the Supplier specific
equipment or performs the specific function for which it is licensed in
conformity with the requirements of the Order and Supplier's published
documentation in effect on the date of delivery of said Software. Buyer's
use of the Software for commercial purposes during said period shall not
constitute acceptance of the Software. Upon successful completion of the
acceptance testing, Buyer shall promptly provide Supplier written notice of
its acceptance by executing its Certification of Acceptance. The Software
shall be deemed accepted on the date specified in the Certification of
Acceptance.
In the event the Software fails the acceptance testing during the aforesaid
testing period, Buyer shall notify Supplier and Supplier shall promptly
correct any deficiencies without charge to Buyer. Buyer and Supplier may
extend the testing period to allow Supplier to correct any deficiencies
upon mutual agreement within thirty (30) days of the date of notice of such
deficiencies. When such deficiencies have been corrected to Buyer's
satisfaction, Buyer shall provide Supplier written notice by executing its
Certification of Acceptance. The Software shall be deemed accepted on the
date specified in the Certification of Acceptance. In the event Supplier
fails to correct any deficiencies by the end of the initial testing period
or any extension thereof, Buyer may, at its option, terminate its Order for
the Software upon written notice to Supplier, and Supplier shall promptly
remove the Software from Buyer's equipment.
7.5 REPLACEMENT MEDIA
-----------------
In the event any or all of the Software media or documentation is damaged
while in the possession of Buyer, at Buyer's request, Supplier shall
furnish Buyer, subject to its existing license, replacement media at
Supplier's actual costs for effecting the replacement.
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7.6 SOFTWARE SUPPORT
----------------
Supplier shall support up to the most recent two versions/major revisions
of Software licensed to Buyer hereunder for ten (10) years from the
effective date of this Agreement, or five (5) years from the last shipment,
hereunder of the affected Goods, whichever is longer. Such support shall
include, but not be limited to, installation, maintenance, error
correction, Enhancements, Updates, and other technical assistance.
Supplier shall maintain the Software in an operable condition in accordance
with Supplier's documentation. Such maintenance shall include all
corrections, replacements or modifications that are required to debug or
remedy any errors in the Software which affect the use of the Software and
all updates and changes to the related documentation, consistent with
Appendix 6, "Maintenance Support Services."
7.7 ENHANCEMENTS
------------
Supplier shall, at no charge, provide Ameritech Services, Inc. and each
Affiliate availability information and price estimates as applicable
regarding Enhancements developed by Supplier. If requested by Ameritech
Services, Inc. and/or any Affiliate(s), Supplier shall, at no charge,
provide each such requesting party's designated engineering center, as soon
as commercially available, one (1) copy of all applicable Software
documentation, except proprietary documentation such as source code, for
each Enhancement issued by Supplier to enable each such party to evaluate
the applicability and/or the effect of the Enhancement on its operations.
In the event the Enhancement affects the standard documentation for
associated equipment, Supplier shall also provide, at no charge, one (1)
copy of such revised documentation.
In the event Ameritech Services, Inc. and/or any Affiliate desires such
Enhancements, Supplier shall license such Enhancements to such party in
accordance with the terms and conditions of this Agreement and at an
applicable fee, if any. Supplier shall be responsible for advance testing
to ensure that the Enhancements meet Supplier's technical specifications
and Buyer's requirements of such Software. Buyer shall not be required to
license any particular Enhancement and may license subsequent Enhancements
without obligation to pay for any intervening Enhancements that have not
been licensed by Buyer.
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Moreover, Supplier agrees to use diligent efforts to develop custom
Enhancements if requested by Buyer in accordance with the prices and terms
and conditions agreed upon between the parties in a separate agreement at
the time of such request.
7.8 WARRANTIES, RELATED REMEDIES
A. Axiom (Licensor) warrants and represents to Ameritech (Licensee) as
follows:
(1) It is the owner of and/or has the right to grant a license to use
the Software specified in this Agreement and each Order free of all
liens, claims, encumbrances, and other restrictions and without
otherwise violating any rights of any third party, including any
patent, copyright, trade secret or other proprietary rights;
(2) There are no actual or threatened suits or claims pending that
involve Licensor's right to grant a license to use the Software or
Licensor's alleged violation of the foregoing proprietary rights;
(3) Licensee shall quietly and peacefully possess the Software and
other materials provided subject to Licensee's compliance with and in
accordance with the provisions of Supplier's License Agreement and
Licensee's right of quiet enjoyment and use and possession of the
Software and other materials will not be interrupted or otherwise
disturbed by Licensor, its officers, directors, employees, agents,
successors, or assigns or any person, firm or entity asserting a claim
under or through Licensor.
(4) Software licensed under an Order shall be free of material defects
and shall function in conformance with its Specifications for a period
of twelve (12) months from the acceptance date of the Software or for
the period set forth in Licensor's standard warranty, whichever is
greater;
(5) All Documentation provided by Licensor to Licensee in connection
with the Software shall be accurate; and
(6) Any software support and other services that Licensor provides to
Licensee under this Agreement shall be provided by personnel who are
trained and skilled in the provision of such services and shall be
provided in a professional, effective, and efficient manner that
equals or exceeds the then-current industry standard for such
services.
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(7) YEAR 2000 CAPABILITIES
----------------------
(a) Warranties, Related Remedies: Supplier warrants that any
version of the Licensed Software licensed hereunder shall
properly perform Year 2000 Processing as defined below. This year
2000 processing warranty shall begin upon acceptance of the
Licensed Software and shall continue through December 31, 2004,
or until expiration of any other warranty applicable thereto,
whichever is later. Upon receiving notice thereof Supplier shall
promptly remedy any breach of this warranty at no additional
charge to the Licensee by 1) correcting the version of the
Licensed Software currently used by the Buyer so as to make it
capable of correctly performing Year 2000 Processing; or 2)
providing replacement software for the Licensed Software which is
equivalent in function to the Licensed Software and which
correctly performs Year 2000 Processing.
(b) If, after using diligent efforts, Supplier is unable to
accomplish either of the foregoing options within ninety (90)
days of Buyer's notification to Licensor of any failure of the
Licensed Software to correctly perform Year 2000 Processing,
Supplier shall refund to Buyer, as the exclusive remedy under
this Section, no more than 150% of any and all amounts paid by
Buyer with respect to the Licensed Software and refund any
prepaid unearned maintenance or support fees. The amount of the
refund will be calculated as the amounts paid by Buyer plus the
amounts paid in excess of that price for any equivalent
replacement product, all not to exceed 150% of said amounts paid
for the non-Year 2000 ready product.
B. Upon learning of any other defects in the Software or any failure of
the Software to function in conformance with its Specifications during
the warranty period, Licensor promptly and at no charge to Licensee
shall repair or replace the Software, whichever is appropriate.
Licensor's remedial efforts shall be performed in accordance with the
response times and remedial measures set forth in Appendix 6 of this
Agreement entitled "MAINTENANCE SUPPORT SERVICES."
C. Upon learning of any inaccuracy in Documentation provided to Licensee,
Licensor promptly and at no charge to Licensee shall correct or
replace the inaccurate Documentation.
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D. The warranty set forth in Section 7.8A(3) shall no longer apply if the
Software is modified or enhanced by Licensee without Licensor's
consent, and such consent shall not be unreasonably withheld.
7.9 AUTHORIZED USERS
----------------
Buyer shall not permit Software to be used by any other person except for
employees, agents, consultants, contractors, and outsourcers who need to
use the Software in performance of their duties for Buyer and who are
authorized and enabled by Buyer to access and utilize the Software.
A. In the event Buyer outsources a site(s), in whole or in part, Supplier
agrees to grant Software access to an outsourcer.
B. Buyer may move Software to a outsourcer upon thirty (30) days written
notice to Supplier at no charge.
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ARTICLE EIGHT
ENTIRE AGREEMENT AND SIGNATURE
The terms contained in this Agreement, the attachments and specifications
referred to herein which are incorporated herein by this reference, shall
constitute the entire agreement between Buyer and Supplier with respect to the
subject matter hereof, shall supersede all prior understandings or
communications, written or oral, and may not be modified or rescinded other than
by a written instrument signed by both Supplier and Ameritech Services, Inc.
Buyer shall not be bound by terms additional to or different from those in this
Agreement that may appear subsequently in Supplier's quotation, acknowledgment,
invoice or in any other communication from Supplier. Acceptance of Goods and
Services, payment or any inaction shall not constitute the consent of Buyer to
or the acceptance of any such terms. An Order placed by Buyer hereunder shall
incorporate the typed, stamped or written provisions or data found thereon and
in subordinated documents (such as shipping releases) so long as the typed,
stamped or written provisions or data merely supply information contemplated by
this Agreement but do not vary the provisions of this Agreement. Whenever typed,
stamped, or written provisions of an accepted Order conflict with this
Agreement, this Agreement shall control.
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IN WITNESS WHEREOF, this Agreement, consisting of nine (9) articles and eight
(8) appendixes has been executed by a duly authorized representative of each
Party on the date indicated below.
AXIOM, INC. AMERITECH SERVICES, INC. for itself and
Supplier on behalf of its Affiliates
Signature: /s/ Xxxx X. Xxxxxx Signature: /s/ Xxxxxx X. Xxxxxxxx
-------------------------- -------------------------------
Printed Name: XXXX X. XXXXXX Printed Name: Xxxxxx X. Xxxxxxxx
----------------------- -----------------------------
Title V.P. OPERATIONS SUPPORT Title Executive VP: Communications & Info.
------------------------------- ------------------------------------
Date: 6-24-98 Date: 6-23-98
------------------------------- -------------------------------------
Reviewed for Vendor Negotiation Content by [SIGNATURE APPEARS HERE] 6/11/98
APPROVED AS TO LEGAL FORM [SIGNATURE APPEARS HERE] ATTORNEY ASI 6/10/98
------------------------ -------
Approved By [SIGNATURE APPEARS HERE] Finance Director
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