Exhibit 10.1
The omitted portions indicated by brackets have been separately filed
with the Securities and Exchange Commission pursuant to a request for
confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934,
as amended.
PCS SOFTWARE LICENSE AND PURCHASE AGREEMENT
This Agreement ("Agreement") is entered into between Sprint Spectrum
Equipment Company, L.P., a Delaware limited partnership ("Owner") and Lucent
Technologies Inc., a Delaware corporation ("Vendor").
RECITALS
WHEREAS, the Owner and the Vendor entered into a Procurement and
Services Contract dated as of January 31, 1996, as the same may be amended,
restated, supplemented or otherwise modified from time to time (the "Contract"),
and
WHEREAS, the Owner desires to obtain a fully paid-up license for
Vendor's 1996 optional features software (defined below as Licensed Software),
pursuant to the terms and conditions and prices set forth herein.
NOW, THEREFORE, in consideration of the mutual promises herein, the
parties agree as follows:
1. SCOPE
1.1. This Agreement including Exhibits A, B and C as attached hereto
and incorporated herein by reference, sets forth the terms and conditions,
prices and payment schedule under which the Vendor agrees to license Licensed
Software, as defined herein, for use on all of the PCS Products purchased from
the Vendor and used in the Owner's Nationwide Network.
1.2. All the terms and conditions of the Contract are hereby
incorporated by reference into this Agreement, except as expressly modified or
supplemented herein. Any such modifications or supplements shall apply to this
Agreement only and shall not apply to any other agreement unless so provided for
therein. In the event of a conflict between the terms and conditions of this
Agreement and the Contract, the Contract shall prevail.
1.3. For purposes of the Vendor financing with the Owner's parent, the
Vendor expressly agrees that all payments made or to be made hereunder will be
covered by such Vendor financing as if such payments were made under the
Contract.
2. DEFINITIONS
2.1. "Licensed Software" means all optional software features for PCS
Products made generally available to Customers in 1996 on an optional, separate
fee, basis. A current list of these features is set forth on Exhibit A hereto.
2.2. "Initial Application" means the initial configuration to be
deployed in Fresno, California consisting of one (1) switch and the number of
base stations within the Initial Application which are available for testing of
the Licensed Software on the date Vendor is ready to commence testing pursuant
to Section 5.1.
2.3. "Initial Application Verification" means the tests set forth on
Exhibit C hereto.
2.4. "Initial Application Verification Test Plan" means the test plan
set forth on Exhibit C hereto.
All other capitalized terms shall have the meanings set forth herein or
as defined in the Contract.
3. SOFTWARE LICENSE
Upon delivery of the Licensed Software, the Vendor grants to the Owner
a perpetual, nontransferable, non-exclusive fully paid-up (i.e., buyout),
multi-site (capability to have deployed Licensed Software in any number of
sites) right to use license for the Licensed Software ("License") for use on the
Products purchased from the Vendor provided in each of the systems and the
System as a whole, subject to payment of license fees set forth on Exhibit B.
The Licensed Software will at all times throughout the term perform in
accordance with the Specifications.
4. ORDER AND DELIVERY OF LICENSED SOFTWARE
4.1. The Owner agrees that the execution of this Agreement shall be
deemed an order for the Licensed Software for its Initial Application.
4.2. The Vendor agrees to deliver and install the Licensed Software
for the Owner's Initial Application as soon as possible, but, in any event, no
later than October 30, 1996.
5. ACCEPTANCE
5.1. The Owner and the Vendor agree that acceptance testing in
accordance with Exhibit C of the Initial Application for Licensed Software will
commence on the date of the installation of the Licensed Software or October 30,
1996, whichever is later. The period for acceptance testing will run for no
longer than the thirty (30) day period after commencement of acceptance testing.
The Owner will accept or reject the Licensed Software within such thirty (30)
day period unless the parties mutually agree that the Licensed Software has met
the acceptance tests prior thereto. If the Owner does not provide a notice of
rejection, then the Licensed Software will be deemed to have been accepted at
the end of the thirty (30) day acceptance period; provided that any such
acceptance will in no way limit the Vendor's warranty or other obligations under
this Agreement and/or the Contract. If prior to Owner acceptance, the Owner
notifies the Vendor of a Defect in the Licensed Software, then the thirty (30)
day acceptance period will be extended day-for-day until the Vendor has
corrected the Defect.
5.2. Minor Defects and shortcomings not affecting the operational use
of the part of the Licensed Software shall not give rise to withholding
acceptance provided that the Vendor undertakes to remedy such defects and
shortcomings as soon as reasonably possible.
5.3. The Owner and the Vendor further agree that the Owner's acceptance
of the Licensed Software for the Owner's Initial Application shall be deemed
acceptance of the Licensed Software by the Owner for deployment of the Licensed
Software in its Nationwide Network; provided that nothing herein will limit or
otherwise modify the Vendor's warranty and other obligations hereunder.
6. INTELLECTUAL PROPERTY
Without limiting the generality of Section 1.2, all of the Software and
Intellectual Property provisions of the Contract shall apply to the Licensed
Software provided herein.
7. WARRANTY
Without limiting the generality of Section 1.2, all of the warranty
provisions of the Contract shall apply to the Licensed Software provided herein.
8. INVOICE PAYMENTS
The Vendor will invoice the Owner for the full amounts shown in Exhibit
B on the dates set forth therein. The Owner will pay such invoiced amounts
within thirty (30) days of the receipt of any such invoices. The Vendor
understands and agrees that amounts owed and invoiced in accordance with the
terms of this Agreement, may be credited, at the Owner's option, against the
Vendor's financing facilities pursuant to and in accordance with the terms of
those facilities.
9. NOTICES
Any notice, request, consent, waiver or other communication required or
permitted under this Agreement will be effective only if it is in writing and
personally delivered by hand or by overnight courier or sent by certified or
registered mail, postage prepaid, return receipt requested, addressed as
follows:
If to the Owner: Sprint Spectrum Equipment Company, L.P.
c/o Sprint Spectrum L.P.
0000 Xxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Director, Program Management
If to the Vendor: Lucent Technologies Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxx
10. AGREEMENT
10.1. Except as otherwise stated herein, this Agreement, together with
all incorporated documents, constitutes the entire Agreement with regard to the
subject matter herein between the Parties.
10.2. Any amendment, modification or supplemental agreement shall only
be binding after its effective date, provided that such amendment, modification
or supplemental agreement is in writing and signed by an authorized
representative of each Party.
10.3. Any material and continuing breach of the terms of this Agreement
by the Vendor will constitute a material breach of an/or a Vendor Event of
Default under the Contract. The Owner and the Vendor expressly understand and
agree that any slip or delay in the availability of any feature(s) set forth on
Exhibit A in excess of sixty (60) days beyond the dates applicable for such
feature(s) as set forth on Exhibit A will constitute a "material and continuing
beach" by the Vendor under this Agreement.
10.4. This Agreement will be construed in accordance with and governed
by the laws of the State of New York without regard to any laws and principles
thereof which would direct the application of the laws of another jurisdiction.
11. SIGNATURES
This Agreement may be executed in any number of identical counterparts,
each of which will constitute an original but all of which when taken together
will constitute one contract.
IN WITNESS WHEREOF, the Parties have caused this agreement to be
executed by their duly authorized officers or representatives, to be effective
when each party has executed this Agreement.
Lucent Technologies Inc.
Signature: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
Date: 10/7/96
Sprint Spectrum Equipment Company, L.P.
Signature: /s/ X.X. Xxxxxx
Name: X. Xxxxxx
Title: Chief Technology Officer
Date: October 8, 1996
EXHIBIT A
1996 OPTIONAL FEATURES SOFTWARE
CDMA Software Feature by Release
--------------------------------------- -------------------- -------------------
CDMA CDMA
Feature Name Release Availability
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EXHIBIT B
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All Vendor Optional Features Software made generally available for PCS
Products in 1996 (Exhibit A) will be licensed to the Owner for a total price of
________________________ Dollars ($_______.00). This package price does not
include features provided on peripheral equipment, i.e., HLR, SCP, SCN,
Actiview, etc.
Invoice Schedule
_________ (__) Days After Owner Acceptance of Licensed Software $__________
_________ (__) Days following First Invoice of Licensed Software
or _________ (__) Days after Substantial Completion
of the Initial PCS System, whichever is earlier $__________
All new Vendor Optional Software Features made generally available
starting on January 1, 1998 will receive a _______ percent (___%) discount off
the then current List Price. For non-Vendor manufactured equipment, the discount
for new Optional Software Features will be _______ percent (___%) off the then
current List Price.
EXHIBIT C
Initial Application Verification Test Plan
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