General Agreement - Birch Telecom Inc. and Lucent Technologies Inc.
GENERAL AGREEMENT
BETWEEN
BIRCH TELECOM, INC.
AND
LUCENT TECHNOLOGIES INC.
<PAGE> 2
The mailing, delivery or negotiation of this Agreement by Lucent or its
agent or attorney shall not be deemed an offer by Lucent to enter into any
transaction or to enter into any other relationship, whether on the terms
contained herein or on any other terms. This Agreement shall not be binding upon
Lucent, nor shall Lucent have any obligations or liabilities or Customer any
rights with respect thereto, or with respect to the transactions contemplated by
the Agreement, unless and until the Agreement has been approved by the executive
officers and/or Board of Directors of Lucent and Lucent has executed and
delivered this Agreement. Until such execution and delivery of this Agreement,
Lucent may terminate all negotiation and discussion of the subject matter
hereof, without cause and for any reason, without recourse or liability.
<PAGE> 3
TABLE OF CONTENTS
GENERAL AGREEMENT
Section Page
------- ----
1. ARTICLE I GENERAL TERMS AND CONDITIONS ...................................1
1.1 DEFINITIONS: ............................................................1
1.2 TERM OF AGREEMENT: ......................................................3
1.3 SCOPE: ..................................................................3
1.4 CUSTOMER RESPONSIBILITY: ................................................4
1.5 ORDERS: .................................................................4
1.6 CHANGES IN CUSTOMER'S ORDERS: ...........................................6
1.7 CHANGES IN PRODUCTS: ....................................................6
1.8 PRICES: .................................................................6
1.9 INVOICES AND TERMS OF PAYMENT: ..........................................7
1.10 PURCHASE MONEY SECURITY INTEREST: ......................................8
1.11 TAXES: .................................................................9
1.12 TRANSPORTATION AND PACKING: ............................................9
1.13 TITLE AND RISK OF LOSS: ................................................9
1.14 WARRANTY: ..............................................................9
1.15 INFRINGEMENT: .........................................................12
1.16 CUSTOMER'S REMEDIES: ..................................................13
1.17 USE OF INFORMATION: ...................................................14
1.18 DOCUMENTATION: ........................................................14
1.19 5ESS(R) DOCUMENTATION: ................................................14
1.20 NOTICES: ..............................................................15
1.21 FORCE MAJEURE: ........................................................15
1.22 ASSIGNMENT: ...........................................................16
1.23 TERMINATION OF AGREEMENT FOR BREACH: ..................................16
1.24 ARBITRATION: ..........................................................17
1.25 NON-SOLICITATION: .....................................................17
1.26 INDEPENDENT CONTRACTOR: ...............................................17
1.27 RELEASES VOID: ........................................................17
1.28 PUBLICITY: ............................................................17
1.29 CONFIDENTIALITY OF AGREEMENT: .........................................18
1.30 AMENDMENTS: ...........................................................18
1.31 SEVERABILITY: .........................................................18
1.32 WAIVER: ...............................................................18
1.33 SURVIVAL: .............................................................18
1.34 SECTION HEADINGS: .....................................................19
1.35 CHOICE OF LAW: ........................................................19
1.36 AMBIGUITIES: ..........................................................19
2. .........................................................................20
2. ARTICLE II PROVISIONS APPLICABLE TO LICENSED MATERIALS ..................20
2.1 LICENSE FOR LICENSED MATERIALS: ........................................20
2.2 CHANGES IN LICENSED MATERIALS: .........................................20
2.3 CANCELLATION OF LICENSE: ...............................................20
2.4 OPTIONAL SOFTWARE FEATURES: ............................................21
2.5 ADDITIONAL RIGHTS IN LICENSED MATERIALS: ...............................21
2.6 INSTALLATION OF SOFTWARE: ..............................................21
2.7 SOFTWARE ACCEPTANCE: ...................................................21
2.8 MODIFICATIONS BY CUSTOMER TO USER CONTROLLED MODULES: ..................22
2.9 ADDITIONAL SOFTWARE RIGHTS FOR 5ESS(R) SWITCH LICENSED MATERIALS .......22
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Section Page
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ARTICLE III
PROVISIONS APPLICABLE TO ENGINEERING, INSTALLATION AND OTHER SERVICES ......24
3.1 SITE REQUIREMENTS: .....................................................24
3.2 ADDITIONAL ITEMS TO BE PROVIDED BY CUSTOMER: ...........................25
3.3 ITEMS TO BE FURNISHED BY SELLER ........................................28
3.3.1 ENGINEERING: .........................................................28
3.3.2 INSTALLATION: ........................................................28
3.4 ACCEPTANCE .............................................................31
3.5 WORK OR SERVICES PERFORMED BY OTHERS: ..................................32
4. ARTICLE IV ENTIRE AGREEMENT: ............................................33
4.1 ENTIRE AGREEMENT .......................................................33
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This General Agreement Number LNM092697DASBTI (hereinafter "General Agreement"
or "Agreement") is made effective the _______day of __________________,19____
("Effective Date") by and between Birch Telecom, Inc., a corporation, with
offices located at 1000 Walnut Street, Suite 1220, Kansas City MO 64106
(hereinafter "Customer"), and Lucent Technologies Inc., a Delaware corporation,
acting through its Network Systems Group, with offices located at 600 Mountain
Avenue, Murray Hill, New Jersey 07974 (hereinafter "Seller").
WHEREAS, Seller desires to supply to Customer and Customer desires to procure
from Seller the products and services described herein, pursuant to the terms
and conditions contained herein.
NOW, THEREFORE, in consideration of the mutual promises herein contained and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties intending to be lawfully bound agree as
follows:
1. ARTICLE I
GENERAL TERMS AND CONDITIONS
1.1 DEFINITIONS:
For the purpose of this Agreement, the following definitions will apply:
(a) "Affiliate" of a corporation means its Subsidiaries, any company of which
it is a Subsidiary, and other Subsidiaries of such company.
(b) "Bill and Hold Products" means Products, Licensed Materials, and/or parts
thereto which the Customer requests and Seller agrees to inventory or
warehouse, at a price mutually agreed to by the parties, until final
delivery to the Customer.
(c) "Customer Price List" means Sellers published "Ordering and Price Guides"
or other price notification releases furnished by Seller for the purpose
of communicating Sellers prices or pricing related information to
Customer; however, this does not include firm price quotations.
(d) "Cutover" means, the verification by Seller and Customer of actual usage
over the installed Products. This function occurs after Turnover and is
not performed by Seller unless specifically requested by Customer and is
usually covered under a separate Professional Services Agreement.
(e) "Delivery Date" means the date required under this Agreement by which all
deliverables ordered by Customer are to be delivered to the destination
specified in the order.
(f) "Designated Processor" means the Product for which licenses to Use
Licensed Materials are granted.
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(g) "Firmware" means a combination of (1) hardware and (2) Software
represented by a pattern of bits contained in such Hardware.
(h) "Fit" means physical size or mounting arrangement (e.g., electrical or
mechanical connections).
(i) "Form means physical shape.
(j) "Function" means the operation the Product performs.
(k) "Hazardous Materials" means material designated as a "hazardous chemical
substance or mixture" pursuant to Section 6 of the Toxic Substance Control
Act; a "hazardous material" as defined in the Hazardous Materials
Transportation Act (49 U.S.C.1801, et seq.); "hazardous substance" as
defined in the Occupational Safety and Health Act Hazard Communication
Standard (29 CFR 1910.1200) or as defined in the Comprehensive
Governmental Response, Compensation and Liability Act, 42 U.S.C. 9601
(14), or other pollutant or contaminant.
(l) "Installation Complete Date" means the date on which OS Software or
transmission systems Software is installed by Seller at the location
specified in the order and determined by Seller to be ready for Use by
Customer.
(m) "Licensed Materials" means the Software and Related Documentation for
which licenses are granted by Seller under this Agreement; no Source Code
versions of Software are included in Licensed Materials.
(n) "OS Software" means the object code Software, for operations systems,
embodied in any medium, including firmware.
(o) "Product" means equipment hardware, and parts thereof, but the term does
not mean Software whether or not such Software is part of Firmware.
(p) "Related Documentation" means materials useful in connection with Software
such as, but not limited to, flowcharts, logic diagrams and listings,
program descriptions and Specifications.
(q) "Sellers Standard Charges" means Sellers applicable rates and charges for
labor and materials as determined from Sellers Customer Price Lists and
other pricing information provided by Seller to Customer, less any
discounts applicable thereto.
(r) "Services" means any engineering, installation or repair services to be
performed by Seller under this Agreement, but the term "Services" does not
include any services provided by the Professional Services Division of
Seller's Network Systems Group unless otherwise expressly agreed to in
writing by the parties.
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(s) "Software" means a computer program consisting of a set of logical
instructions and tables of information that guide the functioning of a
processor. Such program may be contained in any medium whatsoever,
including hardware containing a pattern of bits, representing such
program. However, the term "Software" does not mean or include such
medium.
(t) "Source Code" means any version of Software incorporating high-level or
assembly language that generally is not directly executable by a
processor.
(u) "Specifications" means Seller's or its vendor's technical specifications
for particular Products or Software furnished hereunder.
(v) "Statement of Work" (SOW) means the detailed description of the actual
Services to be performed.
(w) "Subsidiary" of a company means a corporation the majority of whose shares
or others securities entitled to vote for election of directors is now or
hereafter owned or controlled by such company either directly or
indirectly, but such corporation shall be deemed to be a Subsidiary of
such company only as long as such ownership or control exists.
(x) "Turnover" means, with respect to Products and Software to be installed by
Seller, the point at which Seller has completed the installation and
notifies Customer that the installation is completed and that Seller has
confirmed that the installed Product and/or Software comply with Seller's
specifications. This term does not mean Cutover which is separately
defined herein.
(y) "Use," with respect to Licensed Materials means loading the Licensed
Materials, or any portion thereto into a Designated Processor for
execution of the instructions and tables contained in such Licensed
Materials.
1.2 TERM OF AGREEMENT:
The term of this Agreement shall commence on the Effective Date and shall
continue in effect thereafter until the later of (i) five (5) years following
the Effective Date, or (ii) five (5) years following the Turnover of the last
5ESS Switch or the last initial RSM, ORM or EXM purchased by Customer under this
Agreement within five (5) years following the Effective Date ("Term").
1.3 SCOPE:
(a) The terms and conditions of this Agreement shall apply to all transactions
occurring during the Term whereby Products, Licensed Materials or Services are
provided by Seller's Network Systems Group to Customer. Except as expressly
stated in this Agreement, this Agreement shall not apply to any products,
licensed materials or services offered for supply by any of the following
business units or divisions of Seller: Microelectronics, Consumer Products,
Business Communications Systems, Network Wireless division of Network Systems
Group, or the Professional Services division of Network Systems Group. By
placing orders with Seller,
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including change and/or addition orders, or using any Products, Licensed
Materials, or Services provided hereunder, Customer agrees to be bound to the
terms of this Agreement. Customer understands and agrees that all Products,
Licensed Materials, or Services furnished by Seller to Customer pursuant to this
Agreement shall be for Customer's own internal use in the United States only.
Products, Licensed Materials or Services furnished under this Agreement are not
being supplied for resale and shall not be resold by Customer.
(b) All firm price quotes made by Seller to Customer shall incorporate the terms
and conditions of this Agreement. Any conflicting terms and conditions of a firm
price quote, signed by an authorized representative of Seller and Customer and
dated after the effective date of this Agreement, will supersede the comparable
terms of this Agreement.
1.4 CUSTOMER RESPONSIBILITY:
Customer shall, at no charge to Seller, provide Seller with such technical
information, data, technical support or assistance as may reasonably be required
by Seller to fulfill its obligations under this Agreement, any subordinate
agreement or order. If Customer fails to provide the technical information,
data, support or assistance, Seller shall be discharged from any such
obligation.
1.5 ORDERS:
(a) All orders submitted by Customer for Products, Licensed Materials, and
Services shall incorporate and be subject to the terms and conditions of this
Agreement. Any order submitted pursuant to a firm price quotation shall include
such firm price quotation number. All orders, including electronic orders, shall
contain the information as detailed below:
(i) Complete and correct ship to and bill to address;
(ii) The quantity and type of Products, Licensed Materials, and Services
being ordered;
(iii) The price;
(iv) The requested Delivery Date in accordance with Seller's standard
interval for the Products, Licensed Materials, and Services being
ordered. In the event a non standard interval has been mutually
agreed to by the parties, reference to the specific document
agreeing to the interval needs to be included;
(v) The requested completion date in accordance with Seller's standard
interval for the Products, Licensed Materials, and Services being
ordered;
(vi) Reference to this Agreement;
(vii) If an order is for Bill and Hold Products, the phrase "Bill and
Hold" must be clearly and conspicuously stated in the order.
The requested Delivery Date of any order must be in accordance with
Seller's published standard order intervals in effect on the date of receipt of
order by Seller. The current standard order interval is contained herein. Seller
reserves the right to change such standard order intervals without notification
to Customer but only with respect to future orders. Such change shall not affect
orders accepted by Seller prior to the change to the standard order intervals.
Electronic orders shall be binding on Customer notwithstanding the absence of a
signature. All
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orders are subject to acceptance by Seller. Once an order is accepted by Seller,
Seller shall have the right to place such order on hold, delay shipment, and/or
reject such order only due to the breach or default by Customer of its
obligations under this Agreement or Customers insufficient credit limits. Terms
and conditions on Customers purchase order which are inconsistent with the
provisions of this Agreement and any pre-printed terms and conditions on
Customer's purchase order shall be ineffective, void and of no force and effect.
Orders shall be sent to the following address:
Lucent Technologies Inc.
Customer Service
6701 Roswell Road
Building D - 3rd Floor
Atlanta, GA 30328-2501
(b) If an order is for Bill and Hold Products, the phrase "Bill and Hold" must
clearly and conspicuously appear on the Order. In the event Customer orders Bill
and Hold Products, Seller will defer final shipment of such Product(s) until the
final ship date indicated on the purchase order or such final ship date as is
mutually agreed between the parties provided that in no event shall Seller be
obligated to hold Bill and Hold Products longer than one (1) year from the date
of the applicable purchase order. Customer agrees to pay to Seller a monthly
stocking fee for any Bill and Hold Products held beyond the final ship date
indicated on the purchase order or otherwise mutually agreed to date.
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SELLER'S MANUFACTURED PRODUCTS AND SOFTWARE STANDARD ORDERING
INTERVALS (Furnish Only)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Switching Systems Products Twenty Two Weeks
--------------------------------------------------------------------------------
E-AIU System Products TBD
--------------------------------------------------------------------------------
Central Office Power Equipment Twenty Two Weeks
--------------------------------------------------------------------------------
Transmission Systems Products:
--------------------------------------------------------------------------------
DACS-IV 2000 Two Weeks
--------------------------------------------------------------------------------
FT-2000 OC-48 Two Weeks
--------------------------------------------------------------------------------
DDM-2000 OC-3/OC-12 Two Weeks
--------------------------------------------------------------------------------
DDM-2000 FIBER REACH Two Weeks
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SLC 2000 Access System One Week
--------------------------------------------------------------------------------
SLC 2000 MSDT One Week
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SLC Series 5 (System and Plug In) Two Weeks
--------------------------------------------------------------------------------
Other Transmission Products (i.e., DDM Plus, One Week
Repeater Cases)
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Network Cable Systems Products Contact Lucent Sales Person
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All Other Products Contact Lucent Sales Person
--------------------------------------------------------------------------------
Software:
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Switching System Software Same as associated Product
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Transmission Systems Software Same as associated Product
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SELLER'S MANUFACTURES PRODUCTS AND SOFTWARE STANDARD ORDERING
INTERVALS (Furnish Only)
--------------------------------------------------------------------------------
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Operations Systems Software Same as associated Product
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All other Software Contact Lucent Sales Person
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1.6 CHANGES IN CUSTOMER'S ORDERS:
Changes by Customer to an order which has been previously accepted by
Seller (a "Change Order") are subject to acceptance by Seller. Change Orders
shall be treated as a separate order and shall follow Seller's change order
process. In the event Seller accepts a Change Order and such change affects
Seller's ability to meet its obligations under the original order, any price (or
discount, if applicable), shipment date or Services completion date quoted by
Seller with respect to such original order is subject to change. Seller will
provide to Customer written quotations and expected completion dates for any
requested Change Orders.
1.7 CHANGES IN PRODUCTS:
Prior to shipment, Seller may at any time make changes in Products. Seller
may modify the Product(s) drawings and Specifications or substitute Products of
later design. Seller agrees that such modifications or substitutions will not
impact upon Form, Fit, or Function under normal and proper use of the ordered
Product as provided in Seller's Specifications. With respect to changes,
modifications, and substitutions that do impact the Form, Fit, or Function of
the ordered Product, Seller shall notify Customer in writing thirty (30) days
prior to the date the changes become effective. In the event the Customer
objects to the change, Customer shall notify Seller within thirty (30) days from
the date of notice. Upon receipt of notice, Seller shall not furnish modified
Products to Customer on any orders in process with respect to which Customer has
objected to the modifications made by Seller.
1.8 PRICES:
(a) To the extent Customer's order is subject to a firm price quotation made by
Seller, prices, fees and charges (hereinafter "Prices") shall be as set forth in
Seller's firm price quotation. Prices contained in firm price quotations for any
Product or Licensed Materials described in Addendum One to this Agreement shall
not exceed Prices determined in accordance with Addendum One.
(b) Except as expressly stated in this Agreement, or in accordance with Addendum
One to this Agreement, in all other cases, Prices shall be those contained in
Seller's Customer Price Lists. The applicable Customer Price List shall be the
issue that is in effect on the date of Seller's receipt of the order. The
requested Delivery Date of such order must be in accordance with Seller's
published shipping or planning interval or thirty (30) days from the date of
order receipt, whichever is longer. Prices for Products and license fees for
Licensed Materials to be shipped, or Services to be performed beyond the
published shipping interval will be based upon
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the date required for order entry by Seller in accordance with Customer's
requested date and applying the price from the Customer Price List as of that
date.
(c) Seller may amend its Prices, other than those subject to firm price
quotations and, except when applicable Prices are adjusted for changes in raw
material prices, Seller agrees to provide thirty (30) days written notice of any
increase in Prices contained in Seller's Customer Price Lists. When prices
contained in Seller's Customer Price Lists are adjusted for changes in raw
material prices, Seller's new Prices will be revised effective the first day of
any given month. The basis for raw material adjustments will be provided to
Customer upon request.
1.9 INVOICES AND TERMS OF PAYMENT:
(a) Products and Licensed Materials (including transportation charges and taxes,
if applicable) will be billed by Seller when shipped, or as soon thereafter as
practicable. Engineering will be billed with the initial shipment of Product(s).
Installation will be billed as performed or as soon thereafter as practical.
Payment in full for all invoiced or billed amounts is due for receipt by Seller
within thirty (30) days of the invoice or bill date. All payments other than EFT
payments described in subsection (c) below shall be forwarded to Seller at the
following address:
If by regular mail: Lucent Technologies Inc.
P.O. Box 100317
Atlanta, GA 30384-0317
Attn: Accounts Receivable
If by overnight courier: NationsBank
Account Number 143049062
6000 Feldwood Road
P.O. Box 100317
College Park, GA 30349
(b) Bill and Hold Products will be invoiced by Seller upon the earlier of (i)
completion of assembly at Seller's facility or (ii) upon stocking at Customer's
designated location. Such invoice will serve as Seller's notification that Bill
and Hold Products are complete and ready to be released by Customer for final
shipment. The date of the invoice, which shall be the stocking date, shall be
deemed the warranty start date.
(c) Customer shall have the right to pay any amounts due Seller hereunder using
Electronic Funds Transfer ("EFT") Seller reserves the right to cancel the
Customer's right to pay using EFT with thirty (30) days notice to the Customer.
(d) EFT payments by Customer shall be made to the following account of Seller or
such other account as is subsequently designated by Seller in writing and,
concurrent with the EFT payment, Customer shall fax a copy of the [federal wire
instructions/remittal]to Seller's Manager Cash Operations at 770-7504288.
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Customer will EFT funds to the following location:
Chase Manhattan Bank
New York, New York
Lucent Technologies Inc.
ACCT. 910144-9099
ABA 021000021
(e) If Customer fails to pay any invoiced amount when due, the invoiced amount
will be subject to a late payment charge at the rate of one and one half percent
(1-1/2%) per month, or portion thereof, of the amount due (but not to exceed the
maximum lawful rate). Customer agrees to pay Seller's attorneys' fees and other
costs incurred by Seller in the collection of any amounts invoiced hereunder.
(f) Customer agrees to review invoice upon receipt and if necessary, initiate
billing inquires within fifteen (15) days of receipt of invoice. Inquiries can
be initiated in writing or by telephone and shall be directed to the address or
telephone number identified on the invoice.
(g) A sample invoice is provided in Exhibit A for informational purposes only.
1.10 PURCHASE MONEY SECURITY INTEREST:
(a) Seller reserves and Customer agrees that Seller shall have a purchase money
security interest in all Products and Licensed Materials heretofore supplied or
hereafter supplied to Customer by Seller under this Agreement until any and all
payments and charges due Seller under this Agreement including, without
limitation, shipping and installation charges, are paid in full. Seller shall
have the right, at any time during the Term and without notice to Customer, to
file in any state or local jurisdiction such financing statements (e.g., UCC-l
financing statements) as Seller deems necessary to perfect its purchase money
security interest hereunder. Upon request by Seller, Customer hereby agrees to
execute all documents necessary to secure Seller's purchase money security
interest including without limitation, UCC-1 or such other documents Seller
deems reasonably necessary. Notwithstanding the foregoing obligation of Customer
to execute required security interest documents, Customer hereby irrevocably
appoints Seller as its attorney-in-fact for purposes of executing and filing
such financing statements and such other documents prepared by Seller or its
designated agent for purposes of perfecting Seller's security interest
hereunder. Customer also agrees that this Agreement may be filed by Seller in
any state or local jurisdiction as a financing statement (or as other evidence
of the Seller's purchase money security interest).
(b) In addition to any other remedy available to Seller as provided herein, by
common law and by statute, Seller may exercise its right to reclaim all Products
and Licensed Materials sold to Customer pursuant to UCC-702 or such other
applicable provision as it may exist from state to state, upon discovery of
Customer's insolvency, provided Seller demands in writing reclamation of such
goods before ten (10) days after receipt of such goods by Customer, or if such
ten (10) day period expires after the commencement of a bankruptcy case, before
twenty (20) days after receipt of such goods by the Customer.
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1.11 TAXES:
Customer shall be liable for all taxes and related charges, however
designated, imposed upon or based upon the provision, sale, license or Use of
Products, Licensed Materials or Services levied upon the sale, excluding taxes
on Seller's net income, unless Customer provides Seller with a valid tax exempt
certificate. Seller's failure to collect taxes in accordance herewith shall not
be deemed to be an authorization to resell Products or Services or sublicense
Licensed Materials.
1.12 TRANSPORTATION AND PACKING:
Seller, in accordance with its normal practices, shall arrange for prepaid
transportation to destinations in the contiguous United States and shall invoice
transportation charges to Customer. Premium transportation will be used only at
Customer's request. Seller shall pack Products for delivery in the contiguous
United States, in accordance with its standard practices for domestic shipments.
Where, in order to meet Customer's requests, Seller packs Products in other than
its normal manner or for destinations outside the contiguous United States,
Customer shall pay the additional charges for such packing and transportation.
1.13 TITLE AND RISK OF LOSS:
Title to Products only and risk of loss to Products and Licensed Materials
shall pass to Customer upon delivery to the Customer. Title to all Licensed
Materials (whether or not part of Firmware) furnished by Seller, and all copies
thereof made by Customer, including translations, compilations, and partial
copies are, and shall remain, the property of Seller. Title to Products only and
risk of loss for Products and Licensed Material for Bill and Hold Products shall
pass to Customer upon stocking at Seller's facility or Customer's designated
location, whichever occurs earlier. Customer shall notify Seller promptly of any
claim with respect to loss which occurs while Seller has the risk of loss and
shall cooperate in every reasonable way to facilitate the settlement of any
claim. For purposes of this section, "delivery" shall mean the point at which
Seller or Seller's supplier or agent turns over possession of the Product or
Licensed Materials to Customer, Customers employee, Customer's designated
carrier, Customer's warehouse, or other Customer's agent and not necessarily the
final destination shown on the order.
1.14 WARRANTY:
(a) Seller warrants to Customer only, that during the applicable Warranty
Periods set forth below (i) Seller's manufactured products (exclusive of
Software) will be free from defects in material and workmanship and will conform
to Seller's Specifications for such Products which Specifications shall be
included in the documentation to be provided to Customer in accordance with
Articles 1.18 and 1.19 of this Agreement; (ii) Software developed by Seller will
be free from those defects which materially affect performance in accordance
with Seller's Specifications which Specifications shall be included in the
documentation to be provided to Customer in accordance with Articles 1.18 and
1.19 of this Agreement; and (iii) Services will be performed in
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a workmanlike manner and in accordance with good usage and accepted practices in
the community in which Services are provided. With respect to Products or
Software or partial assembly of Products furnished by Seller but neither
manufactured by Seller nor purchased by Seller pursuant to its procurement
specifications ("Vendor Items"), Seller, to the extent permitted, does hereby
assign to Customer the warranties given to Seller by its vendor(s) of such
Vendor Items.
(b) For purposes of this Agreement the term "Warranty Period" means the period
of time listed below which, unless otherwise stated, commences on date of
shipment or, if installed by Seller the earliest of either: (i) acceptance by
Customer; or (ii) thirty (30) days from the date Seller submits its notice of
completion of its installation; or (iii) the date Customer first puts Products
and/or Licensed Materials into service. For Bill and Hold Products the warranty
will commence upon the date of stocking at Sellers facility or Customer's
designated location. The Warranty Period for any Product or Software (or part
thereof) repaired or replaced under this Section 1.14 is the period listed in
the right column below or the unexpired portion of the new Product Warranty
Period, whichever is longer.
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SELLER'S MANUFACTURED PRODUCTS AND SOFTWARE
WARRANTY PERIOD
--------------------------------------------------------------------------------
Base
----
Period Repaired
------ --------
New Product or
--- ----------
Product Part
------- ----
--------------------------------------------------------------------------------
Switching Systems Products **** ****
--------------------------------------------------------------------------------
E-AIU Systems Products **** ****
--------------------------------------------------------------------------------
Central Office Power Equipment:
--------------------------------------------------------------------------------
Associated with Switching Systems **** ****
--------------------------------------------------------------------------------
Not Associated with Switching Systems **** ****
--------------------------------------------------------------------------------
Transmission Systems Products:
--------------------------------------------------------------------------------
DACS-IV 2000, **** ****
--------------------------------------------------------------------------------
FT-2000 OC-48 **** ****
--------------------------------------------------------------------------------
DDM-2000 OC-3/OC-12 **** ****
--------------------------------------------------------------------------------
DDM-2000 FIBER REACH **** ****
--------------------------------------------------------------------------------
SLC 2000 Access System **** ****
--------------------------------------------------------------------------------
SLC 2000 MSDT **** ****
--------------------------------------------------------------------------------
SLC Series 5 (System and Plug In) **** ****
--------------------------------------------------------------------------------
Other Transmission Products (i.e., DDM Plus **** ****
Repeater Cases)
--------------------------------------------------------------------------------
Network Cable Systems Products **** ****
--------------------------------------------------------------------------------
All Other Products **** ****
--------------------------------------------------------------------------------
Software:
--------------------------------------------------------------------------------
Switching System Software **** ****
--------------------------------------------------------------------------------
Transmission Systems Software **** ****
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================================================================================
SELLER'S MANUFACTURED PRODUCTS AND SOFTWARE
WARRANTY PERIOD
--------------------------------------------------------------------------------
Base
----
Period Repaired
------ --------
New Product or
--- ----------
Product Part
------- ----
--------------------------------------------------------------------------------
Operations Systems Software **** ****
--------------------------------------------------------------------------------
All Other Software **** ****
================================================================================
(c) If, under normal and proper use, a defect or non-conformity appears in
Seller's manufactured products or Software during the applicable Warranty Period
and Customer promptly notifies Seller in writing of such defect or
non-conformance and follows Seller's instructions regarding return of defective
or non-conforming Product or Software, Seller, at its option, will either
repair, replace or correct the same without charge at its manufacturing or
repair facility or provide a refund or credit based on the original purchase
price or license fee. If engineering or installation Services prove not to be
performed as warranted within a six (6) month period commencing on the date of
completion of the Services, Seller, at its option, either will correct the
defect or non-conforming Services or render a full or pro-rated refund or credit
based on the original charges for the Services. No Product or Software will be
accepted for repair or replacement without the written authorization of and in
accordance with instructions of Seller. Customer's removal and reinstallation
expenses as well as any transportation expenses associated with returning such
Product or Software to Seller shall be borne by Customer. Seller shall pay the
costs of transportation of the repaired or replacing Product or Software to any
United States destination designated by Customer. If Seller determines that
returned Product or Software is not defective, Customer shall pay Seller's costs
of handling, inspecting, testing and transportation and, if applicable, travel
and related expenses. In repairing or replacing any Product, part of Product, or
Software medium under this warranty, Seller may use either new, remanufactured,
reconditioned, refurbished or functionally equivalent Products or parts.
Replaced Products or parts shall become Seller's property.
(d) With respect to Seller's manufactured products which Seller has ascertained
are not readily returnable for repair, Seller, at its option, may elect to
repair or replace the Products at Customer's site. Customer, at its expense,
shall make the Products accessible for repair or replacement and shall restore
the site after Seller has completed its repairs or replacement.
(e) Seller makes no warranty with respect to defective conditions or
non-conformities resulting from any of the following: Customer's modifications,
misuse, neglect, accident or abuse; Customer's improper wiring, repairing,
splicing, alteration, installation, storage or maintenance; use in a manner not
in accordance with Seller's or its vendor's Specifications, or operating
instructions or failure of Customer to apply previously applicable Seller's
modifications or corrections. In addition, Seller makes no warranty with respect
to Products which have had their serial numbers or month and year of manufacture
removed, altered and with respect to expendable items, including, without
limitation, fuses, light bulbs, motor brushes and the like. No warranty is made
that Software will run uninterrupted or error free, and in addition Seller makes
no warranty with respect to defects related to Customer's data base errors.
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(f) THE FOREGOING WARRANTIES ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER EXPRESS
AND IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER'S SOLE AND
EXCLUSIVE REMEDY SHALL BE SELLER'S OBLIGATION TO REPAIR, REPLACE, CREDIT, OR
REFUND AS SET FORTH ABOVE IN THIS WARRANTY.
1.15 INFRINGEMENT:
(a) In the event of any claim, action, proceeding or suit by a third party
against Customer alleging an infringement of any United States patent, United
States copyright, or United States trademark, or a violation in the United
States of any trade secret or proprietary rights by reason of the use, in
accordance with Seller's Specifications, of any Product or Licensed Materials
furnished by Seller to Customer under this Agreement, Seller, at its expense,
will defend Customer, subject to the conditions and exceptions stated below.
Seller will reimburse Customer for any cost, expense or attorneys' fees,
incurred at Seller's written request or authorization, and will indemnify
Customer against any liability assessed against Customer by final judgment on
account of such infringement or violation arising out of such use.
(b) If Customer's use shall be enjoined or in Seller's opinion is likely to be
enjoined, Seller will, at its expense and at its option, either (1) replace the
enjoined Product or Licensed Materials furnished pursuant to this Agreement with
a suitable substitute free of any infringement; (2) modify it so that it will be
free of the infringement; or (3) procure for Customer a license or other right
to use it. If none of the foregoing options are practical, Seller will remove
the enjoined Product or Licensed Materials and refund to Customer any amounts
paid to Seller therefor less a reasonable charge for any actual period of use by
Customer.
(c) Customer shall give Seller prompt written notice of all such claims,
actions, proceedings or suits alleging infringement or violation and Seller
shall have full and complete authority to assume the sole defense thereof,
including appeals, and to settle same. Customer shall, upon Seller's request and
at Seller's expense, furnish all information and assistance available to
Customer and cooperate in every reasonable way to facilitate the defense and/or
settlement of any such claim, action, proceeding or suit.
(d) No undertaking of Seller under this section shall extend to any such alleged
infringement or violation to the extent that it: (1) arises from adherence to
design modifications, specifications, drawings, or written instructions which
Seller is directed by Customer to follow, but only if such alleged infringement
or violation does not reside in corresponding commercial Product or Licensed
Materials of Seller's design or selection; or (2) arises from adherence to
instructions to apply Customer's trademark, trade name or other company
identification; or (3) resides in a Product or Licensed Materials which are not
of Seller's origin and which are furnished by Customer to Seller for use under
this Agreement; or (4) relates to uses of Product or Licensed Materials provided
by Seller in combinations with other Product or Licensed Materials, furnished
either by Seller or others, which combination was not installed, recommended or
otherwise approved by Seller. In the foregoing cases numbered (1) through
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(4), Customer will defend and save Seller harmless, subject to the same terms
and conditions and exceptions stated above, with respect to the Seller's rights
and obligations under this section.
(e) The liability of Seller and Customer with respect to any and all claims,
actions, proceedings or suits by third parties alleging infringement of patents,
trademarks or copyrights or violation of trade secrets or proprietary rights
because of, or in connection with, any Products or Licensed Materials furnished
pursuant to this Agreement shall be limited to the specific undertakings
contained in this section.
1.16 CUSTOMER'S REMEDIES:
(a) CUSTOMER'S EXCLUSIVE REMEDIES AND THE ENTIRE LIABILITY OF SELLER, ITS
AFFILIATES AND THEIR EMPLOYEES, AND AGENTS, AND ITS SUPPLIERS FOR ANY CLAIM,
LOSS, DAMAGE OR EXPENSE OF CUSTOMER OR ANY OTHER ENTITY ARISING OUT OF THIS
AGREEMENT, OR THE USE OR PERFORMANCE OF ANY PRODUCT, LICENSED MATERIALS, OR
SERVICES, WHETHER IN AN ACTION FOR OR ARISING OUT OF BREACH OF CONTRACT, TORT,
INCLUDING NEGLIGENCE, INDEMNITY, OR STRICT LIABILITY, SHALL BE AS FOLLOWS:
1) FOR INFRINGEMENT--THE REMEDY SET FORTH IN THE "INFRINGEMENT" SECTION;
2) FOR THE NON-PERFORMANCE OF PRODUCTS, SOFTWARE, AND SERVICES DURING THE
WARRANTY PERIOD--THE REMEDY SET FORTH IN THE APPLICABLE "WARRANTY"
SECTION;
3) FOR TANGIBLE PROPERTY DAMAGE AND PERSONAL INJURY CAUSED BY SELLER'S
NEGLIGENCE--THE AMOUNT OF THE PROVEN DIRECT DAMAGES;
4) FOR EVERYTHING OTHER THAN AS SET FORTH ABOVE--THE AMOUNT OF THE PROVEN
DIRECT DAMAGES NOT TO EXCEED $100,000 PER OCCURRENCE INCLUDING AWARDED
COUNSEL FEES AND COSTS.
(b) NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, SELLER, ITS
AFFILIATES AND THEIR EMPLOYEES, AND AGENTS, AND ITS SUPPLIERS SHALL NOT BE
LIABLE FOR ANY INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES OR LOST PROFITS,
REVENUES OR SAVINGS ARISING OUT OF THIS AGREEMENT, OR THE USE OR PERFORMANCE OF
ANY PRODUCT, LICENSED MATERIALS, OR SERVICES, WHETHER IN AN ACTION FOR OR
ARISING OUT OF BREACH OF CONTRACT, TORT, INCLUDING NEGLIGENCE, OR STRICT
LIABILITY. THIS SECTION, 1.16(B), SHALL SURVIVE FAILURE OF AN EXCLUSIVE OR
LIMITED REMEDY.
(c) CUSTOMER SHALL GIVE SELLER PROMPT WRITTEN NOTICE OF ANY CLAIM. ANY ACTION OR
PROCEEDING AGAINST SELLER MUST BE BROUGHT WITHIN TWENTY-FOUR (24) MONTHS AFTER
THE CAUSE OF ACTION ACCRUES.
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1.17 USE OF INFORMATION:
All technical and business information in whatever form recorded which
bears a legend or notice restricting its use, copying, or dissemination or, if
not in tangible form, is described as being proprietary or confidential at the
time of disclosure and is subsequently summarized in a writing so marked and
delivered to the receiving party within thirty (30) days of disclosure to the
receiving party (all hereinafter designated "Information") shall remain the
property of the furnishing party. The furnishing party grants the receiving
party the right to use such Information only for purposes expressly permitted in
this section. Such Information (1) shall not be reproduced or copied, in whole
or part, except for use as authorized in this Agreement; and (2) shall, together
with any full or partial copies thereof, be returned or destroyed when no longer
needed. Moreover, when Seller is the receiving party, Seller shall use such
Information only for the purpose of performing under this Agreement, and when
Customer is the receiving party, Customer shall use such Information only (1) to
order; (2) to evaluate Seller's Products, Licensed Materials and Services; or
(3) to install, operate and maintain the particular Products and Licensed
Materials for which it was originally furnished. Unless the furnishing party
consents in writing, such Information, except for that part, if any, which is
known to the receiving party free of any confidential obligation, or which
becomes generally known to the public through acts not attributable to the
receiving party, shall be held in confidence by the receiving party. The
receiving party may disclose such Information to other persons, upon the
furnishing party's prior written authorization which authorization shall not be
unreasonably withheld or delayed (but in any event not to exceed ten (10)
business days), but solely to perform acts which this section expressly
authorizes the receiving party to perform itself and further provided such other
person agrees in writing (a copy of which writing will be provided to the
furnishing party at its request) to the same conditions respecting use of
Information contained in this section and to any other reasonable conditions
requested by the furnishing party.
1.18 DOCUMENTATION:
Seller shall furnish to Customer, at no additional charge, one (1) copy of
the documentation for Products and/or one (1) copy of the Related Documentation
for Software licensed to Customer for each Product or Software purchased by
Customer as well as one (1) duplicate copy for use at Customer's corporate
headquarters. Such documentation shall be that which is customarily provided by
Seller to its Customers at no additional charge. Such documentation shall be
sufficient to enable Customer to operate and maintain such Products and Software
in accordance with Seller's specifications. Such documentation shall be provided
either prior to, included with, or shortly after shipment of Products and/or
Software from Seller to Customer. Additional copies of such documentation are
available at prices set forth in Seller's Customer Price Lists.
1.19 5ESS(R) DOCUMENTATION:
Seller will provide to Customer at no charge one (1) copy each of the most
recent text and drawing CD-ROM or one (1) login to the 5ESS(R) Switch
Documentation Dial-Up Service for
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each new host/standalone Switch site, as well as one (1) duplicate copy for use
at Customer's corporate headquarters. Such documentation will include, at a
minimum, Seller's document numbers 235-400-112, 235-400-103 (expanded version)
and 254-303-100 (in CD-ROM form when available). No documentation will be
provided to RSMs (Remote Site Module) or ORMs (Optical Remote Module). In
addition, Seller will provide updates at no charge for a period of two (2) years
following Switch turnover. After the initial two (2) year update period,
Customer may purchase an update subscription at the standard subscription rate.
1.20 NOTICES:
(a) Any notice, demand or other communication (other than an order) required, or
which may be given, under this Agreement shall, unless specifically otherwise
provided in this Agreement, be in writing and shall be given or made by
nationally recognized overnight courier service, confirmed facsimile, or
certified mail, return receipt requested and shall be addressed to the
respective parties as follows:
If to Seller
Lucent Technologies Inc.
Global Commercial Markets
5440 Millstream Road, E2N32
I-85 & Mt. Hope Church Road
McLeansville, North Carolina 27301
Attn: Contract Manager
If to Customer:
1. Vice President, Engineering
Birch Telecom, Inc.
1000 Walnut Street
Suite 1220
Kansas City, MO 64106
2. General Counsel
Birch Telecom, Inc.
1000 Walnut Street
Suite 1220
Kansas City, MO 64106
(b) Any such notice shall be effective upon receipt. Each party may change its
designated representative who is to receive communications and notices and/or
the applicable address for such communications and notices by giving notice
thereof to the other party provided herein.
1.21 FORCE MAJEURE:
Except for payment obligations, neither party shall be held responsible
for any delay or failure in performance to the extent that such delay or failure
is caused by fires, strikes,
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embargoes, explosions, earthquakes, floods, wars, water, the elements, labor
disputes, government requirements, civil or military authorities, acts of God or
by the public enemy, inability to secure raw materials or transportation
facilities, acts or omissions of carriers or suppliers, or other causes beyond
its control whether or not similar to the foregoing.
1.22 ASSIGNMENT:
Except as provided in this section, neither party shall assign this
Agreement or any right or interest under this Agreement, nor delegate any Work
or obligation to be performed under this Agreement, (an "assignment") without
the other party's prior written consent. Any attempted assignment in
contravention of this shall be void and ineffective. Nothing shall preclude a
party from employing a subcontractor in carrying out its obligations under this
Agreement. A party's use of such subcontractor shall not release the party from
its obligations under this Agreement. Notwithstanding the foregoing, Seller has
the right to assign this Agreement and to assign its rights and delegate its
duties under this Agreement, in whole or in part, at any time and without
Customer's consent, to any present or future subsidiary or "Affiliate" of Seller
or to any combination of the foregoing. Such assignment or delegation shall
release Seller from any further obligation or liability thereon. Notwithstanding
the foregoing, Customer has the right to assign this Agreement and to assign its
rights and delegate its duties under this Agreement, in whole or in part, at any
time and without Seller's consent, to any present or future subsidiary or
"Affiliate" of Customer (except for direct competitors of the Seller, i.e.,
companies which market network Products and Licensed Materials similar to those
provided by seller under this Agreement.) or to any combination of the
foregoing. Such assignment or delegation shall not release Customer from any
further obligation or liability thereon. Seller shall give Customer prompt
written notice of the assignment. For the purposes of this section, the term
"Agreement" includes this Agreement, any subordinate agreement placed under this
Agreement and any order placed under this Agreement or subordinate agreement.
1.23 TERMINATION OF AGREEMENT FOR BREACH:
In the event either party is in material breach or default of the terms of
this Agreement and such breach or default continues for a period of ten (10)
days with respect to payment obligations or thirty (30) days with respect to any
other obligations after the receipt of written notice from the other party, then
the party not in breach or default shall have the right to terminate this
Agreement without any charge, obligation or liability except for Products or
Licensed Materials already delivered and Services already performed. The party
not in breach or default shall provide full cooperation to the other party in
every reasonable way to facilitate the remedy of the breach or default hereunder
within the applicable cure period. Notwithstanding the foregoing, if the nature
of the material breach or default is such that it is not a payment obligation
and it is incapable of cure within the foregoing thirty (30) day period, then
the thirty (30) day cure period may be extended for a reasonable period of time
(in no event to exceed an additional thirty (30) days), provided that the party
in breach or default is proceeding diligently and in good faith to effectuate a
cure.
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1.24 ARBITRATION:
If a dispute arises out of or relates to this Agreement, or its breach,
the parties agree to escalate such dispute to their respective senior executives
for good faith negotiations seeking a mutually agreeable resolution. This demand
for escalation shall be in writing and notice shall be served in accordance with
the notice provision of this Agreement. If the dispute is not resolved through
such escalation within fifteen (15) days after the date of escalation, either
party shall have the right to submit the dispute to a sole mediator selected by
the parties or, at any time at the option of a party, to mediation by the
American Arbitration Association ("AAA"). If not thus resolved, it shall be
referred to a sole arbitrator selected by the parties within thirty (30) days of
the mediation or, in the absence of such selection, to AAA arbitration which
shall be governed by the United States Arbitration Act, and judgment on the
award may be entered in any court having jurisdiction. The arbitrator may
determine issues of arbitrability, but may not award punitive damages or limit,
expand or otherwise modify the terms of this Agreement. The parties, their
representatives, other participants and the mediator and arbitrator shall hold
the existence, content and result of mediation and arbitration in confidence,
except as such disclosure may be necessary for the purpose of recording or
otherwise acting upon the arbitrator's award.
1.25 NON-SOLICITATION:
During the term of this Agreement and for a period of one (1) year from
the termination of this Agreement or a Statement of Work, the parties agree not
to employ, make an offer of employment to, or enter into a consulting
relationship with any employee of the other party who is directly involved with
the delivery of Services under this Agreement, except upon the prior written
consent of the affected party.
1.26 INDEPENDENT CONTRACTOR:
All work performed by either party under this Agreement shall be performed
as an independent contractor and not as an agent of the other, and no persons
furnished by the performing party shall be considered the employees or agents of
the other.
1.27 RELEASES VOID:
Neither party shall require releases or waivers of any personal rights
from representatives or employees of the other in connection with visits to its
premises, nor shall such parties plead such releases or waivers in any action or
proceeding.
1.28 PUBLICITY:
Neither party shall issue or release for publication any articles,
advertising, or publicity material relating to Products, Licensed Materials, or
Services under this Agreement or mentioning or implying the name, trademarks,
logos, trade name, service mark or other company identification of the other
party or any of its Affiliates or any of its personnel without the prior written
consent of the other party.
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1.29 CONFIDENTIALITY OF AGREEMENT:
Notwithstanding the obligations contained in Section 1.17 (Use of
Information) of this Agreement the parties shall keep all provisions of this
Agreement and any order submitted hereunder (including, without limitation,
prices and pricing related information) confidential except: (i) as reasonably
necessary for performance by the parties hereunder, (ii) as authorized by Seller
as provided in this Article 1.29, or (iii) to the extent disclosure may be
required by applicable laws or regulations, in which latter case, the party
required to make such disclosure shall promptly inform the other prior to such
disclosure in sufficient time to enable such other party to make known any
objections it may have to such disclosure. The Customer may disclose such
information to (a) consultants or advisors previously authorized by the Seller,
solely for the purpose of providing consulting services or advice with respect
to Customer's network and operations, or (b) potential investors or lenders
previously authorized by the Seller, solely for the purpose of evaluating
possible financial transactions with the Customer, but in each event only after
each of those persons or entities shall have agreed to maintain the information
in confidence in accordance with the terms of this Article. The Seller's
authorization shall not be unreasonably withheld or delayed (but in any event
not to exceed ten (10) business days). The disclosing party shall take all
reasonable steps and exercise all reasonable efforts directed by Seller to
secure a protective order, seek confidential treatment, or otherwise assure that
this Agreement and/or any order will be withheld from the public record.
1.30 AMENDMENTS:
Any supplement, modification or waiver of any provision of this Agreement
must be in writing and signed by authorized representatives of both parties.
1.31 SEVERABILITY:
If any portion of this Agreement is found to be invalid or unenforceable,
the parties agree that the remaining portions shall remain in effect. The
parties further agree that in the event such invalid or unenforceable portion is
an essential part of this Agreement, they will immediately begin negotiations
for a replacement.
1.32 WAIVER:
If either party fails to enforce any right or remedy available under this
Agreement, that failure shall not be construed as a waiver of any right or
remedy with respect to any other breach or failure by the other party.
1.33 SURVIVAL:
The rights and obligations of the parties which by their nature would
continue beyond the termination cancellation, or expiration of this Agreement,
shall survive such termination, cancellation or expiration.
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1.34 SECTION HEADINGS:
The section headings in this Agreement are inserted for convenience only
and are not intended to affect the meaning or interpretation of this Agreement.
1.35 CHOICE OF LAW:
The construction and interpretation of, and the rights and obligations of
the parties pursuant to this Agreement, shall be governed by the laws of the
State of New York without regard to its conflict of laws provision.
1.36 AMBIGUITIES:
The parties represent that they are sophisticated businesses with access
to their own legal, financial and business advisors and that each party has had
the opportunity to consult with advisors and that each party has had the
opportunity to consult with advisors of their own choosing before entering into
this Agreement. The parties therefore acknowledge and agree that the rule of law
that ambiguities are construed against the drafter shall not apply to the
interpretation of this Agreement.
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2. ARTICLE II
PROVISIONS APPLICABLE TO LICENSED MATERIALS
2.1 LICENSE FOR LICENSED MATERIALS:
(a) Upon delivery of Licensed Materials pursuant to this Agreement, Seller
grants to Customer a personal, nontransferable, and nonexclusive license to Use
Licensed Materials on a Designated Processor in the United States for its own
business operations. No license is granted to Customer to Use the Licensed
Materials outside the United States or to sublicense such Licensed Materials
furnished by Seller. Customer shall not reverse engineer, decompile or
disassemble Software furnished as object code to generate corresponding Source
Code. Unless otherwise agreed in writing by Seller, Customer shall not modify
Software furnished by Seller under this Agreement. If the Designated Processor
becomes temporarily inoperative, Customer shall have the right to Use the
Licensed Materials temporarily on a backup processor until operable status is
restored and processing on the backup processor is completed.
(b) Customer shall not copy Software embodied in Firmware. Customer shall not
make any copies of any other Licensed Materials except as necessary in
connection with the rights granted hereunder. Customer shall reproduce and
include any Seller copyright and proprietary notice on all such necessary copies
of the Licensed Materials. Customer shall also mark all media containing such
copies with a warning that the Licensed Materials are subject to restrictions
contained in an agreement between Seller and Customer and that such Licensed
Materials are the property of Seller. Customer shall maintain records of the
number and location of all copies of the Licensed Materials. Customer shall take
appropriate action, by instruction, agreement, or otherwise, with the persons
permitted access to the Licensed Materials so as to enable Customer to satisfy
its obligations under this Agreement. If Customer's license is canceled or
terminated, or when the Licensed Materials are no longer needed by Customer,
Customer shall return all copies of such Licensed Materials to Seller or follow
written disposition instructions provided by Seller.
2.2 CHANGES IN LICENSED MATERIALS:
Prior to shipment, Seller at its option may at any time modify the
Specifications relating to its Licensed Materials, provided the modifications,
under normal and proper Use, do not materially adversely affect the Use,
function, or performance of the ordered Licensed Materials. Unless otherwise
agreed in writing, such substitution shall not result in any additional charges
to Customer with respect to licenses for which Seller has quoted fees to
Customer.
2.3 CANCELLATION OF LICENSE:
Notwithstanding any other section in this Agreement to the contrary, if
Customer fails to comply with any of the material terms and conditions of this
Agreement with respect to the Use of Licensed Materials, and such failure is not
corrected within thirty (30) days of receipt of written
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notice thereof by Customer, Seller, upon written notice to Customer, may cancel
any affected license for Licensed Materials without further notification.
2.4 OPTIONAL SOFTWARE FEATURES:
Software provided to Customer under this Agreement may contain optional
features which are separately licensed and priced. Customer understands and
agrees that such optional features will not be activated without written
authorization from Seller and Customer's payment of the appropriate license
fees. If, in spite of Customer's best efforts to comply with this restriction,
such features are intentionally activated by Customer, Customer agrees to so
notify Seller within five (5) business days from the date of Customer's
knowledge that such features were activated and to pay Seller the current
license fees charged by Seller for the activated features, as well as the
reasonable cost of money for the period in which such features were activated.
2.5 ADDITIONAL RIGHTS IN LICENSED MATERIALS:
(a) Upon thirty (30) days advance written notice, Customer may relocate the
Software permanently to a new processor of Customer. This new processor shall
then become the Designated Processor in lieu of the former Designated Processor.
(b) Customer may retain an archival copy of the Software for as long as such
Software is relevant to Customer's operations.
2.6 INSTALLATION OF SOFTWARE:
(a) Where Customer is responsible for Software installation, Seller's sole
responsibility is to deliver the Software to Customer on or before the scheduled
Delivery Date agreed to by Seller. However, if the order specifies that Seller
is responsible for such installation, Seller shall deliver the Software to
Customer in sufficient time for it to be installed on or before the scheduled
Installation Complete Date agreed to by Seller, and Seller shall complete its
installation and associated testing on or before such date.
(b) Where Customer has assumed responsibility for the installation of newly
licensed Software and in the event that Customer encounters installation
difficulties, at Customer's request, Seller will, at the standard rate in effect
at the time of the request, provide technical assistance.
2.7 SOFTWARE ACCEPTANCE:
(a) Prior to Software acceptance by Customer, Customer has the right to operate
the Software furnished by Seller on the Designated Processor solely for the
purpose of conducting an Acceptance Test (means the test which may be performed
by Customer during the Acceptance Test Period to determine whether Software will
be free from defects which materially affect performance in accordance with the
Seller's Specifications). Unless otherwise agreed by the parties, the Acceptance
Test Period (means the period of time in days agreed to by the
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parties and specified in this section) for Software shall be thirty-five (35)
consecutive calendar days from the delivery date if Customer performs
installation or from the Installation Complete Date if Seller performs
installation. The Software shall be deemed accepted by Customer unless Customer
notifies Seller in writing to the contrary within the applicable Acceptance Test
Period described above. If Seller receives written notice from Customer during
the Acceptance Test Period that the Software failed the Acceptance Test, the
Acceptance Date (the date on which the Software successfully completes the
Acceptance Test) shall be extended on a day-to-day basis until such time as the
Software passes the Acceptance Test.
(b) If Customer elects in the order not to perform Acceptance Tests for any
Software, the Acceptance Date for such Software shall be the Delivery Date if
not installed by Seller or the Installation Complete Date if installed by
Seller, as applicable.
(c) For any Acceptance Test conducted by Customer on newly licensed Software,
and in the event that Customer encounters difficulties, Seller will, at
Customer's request and for the standard rate in effect at the time of the
request, provide technical assistance to Customer.
(d) If Customer performs installation and elects to perform applicable tests for
any Software, the warranty for such Software shall commence on the Delivery
Date.
2.8 MODIFICATIONS BY CUSTOMER TO USER CONTROLLED MODULES:
Customer may add to, delete from, or modify user controlled Software
modules or menus as contemplated in the Seller's Related Documentation. Such
changes or modifications, however extensive, shall not affect Seller's title to
the licensed Software. Seller shall have no liability for Customer's errors in
making such changes or modifications.
2.9 ADDITIONAL SOFTWARE RIGHTS FOR 5ESS(R) SWITCH LICENSED MATERIALS
The following provisions also apply to the granting of licenses by Seller
to Customer for 5ESS(R) Switch Licensed Materials.
(a) Customer may transfer its right-to-use 5ESS(R) Switch Software furnished
under this Agreement without the payment of an additional right-to-use fee by
transferee, except where size sensitive units are a factor. Such transfer can be
made to an end user for their own internal use and only under the following
conditions:
(i) Such software shall be used only within the United States; however,
Seller will not unreasonably withhold its consent to Use outside the
United States provided that, in the sole opinion of the Seller, the
proprietary information associated with the Use can be adequately
protected and any other reasonable concerns of Seller are adequately
addressed;
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(ii) Except as otherwise provided in the agreement, the right to use such
Software may be transferred only together with the 5ESS(R) Switch
Product with which customer has a right to use such Software, and
such right to use the Software shall continue to be limited to Use
with such Product;
(iii) Before any such Software shall be transferred, Customer shall notify
Seller of such transfer and the transferee shall have agreed in
writing (a copy of which will be provided to Seller at its request)
to keep such Software in confidence and to comply with corresponding
conditions respecting Use of Licensed Materials as those imposed on
customer; and
(iv) Within the United States, the transferee shall have the same right
to Software warranty or Software maintenance for such Software as
the transferor, provided the transferee continues to pay the fees,
if any, associated with such Software or Software maintenance.
(v) In no event shall such transfer be made to any competitor of Seller
who is in the business of manufacturing comparable systems or to any
other party who presents a competitive or strategic conflict to
Seller.
(b) Upon advance written notice to Seller, Customer may remove 5ESS(R) Switch
Software or optional feature packages, which Customer has the right to Use under
this Agreement from one Customer-owned 5ESS(R) Switch Product and relocate them
to another Customer-owned 5ESS(R) Switch Product within the same company as
Customer. Customer shall not be required to pay additional right-to-use fees as
a result of such relocation, except where size sensitive units are a factor.
Seller may charge customer for services requested by customer in support of such
relocation. Such Software shall not be used or transferred to Customer's
affiliate that is a manufacturer of telecommunication products in direct
competition with Seller.
(c) If Seller ceases to maintain a standard, supported version of Software for
the 5ESS(R) Switch Product furnished pursuant to this Agreement, and these
support services are not available from another entity (either working with or
independently from Seller), then Seller shall furnish Customer, under a
confidentiality agreement acceptable to Seller, Seller's then existing Software
Source Code, Software development programs, and associated documentation for
such standard version to the extent necessary for Customer to maintain and
enhance for its own use the standard version of that Software which it has the
right to use under this Agreement.
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3. ARTICLE III
PROVISIONS APPLICABLE TO ENGINEERING, INSTALLATION AND OTHER
SERVICES
GENERAL: The provisions of this Article III shall apply to the Services
ordered by Customer and furnished by Seller under this Agreement.
3.1 SITE REQUIREMENTS:
(a) Customer is solely responsible for ensuring that the installation site is
compliant with any site requirements identified by Seller for the installation
and/or operation of any Products, Licensed Materials, or Services furnished by
Seller under this Agreement. Such site requirements shall include, without
limitation, those site requirements set forth in this Section 3.1 below. Seller
agrees to cooperate with Customer to ensure compliance with all site
requirements, provided that such cooperation shall not require Seller to incur
any out-of-pocket costs unless the parties expressly agree otherwise in writing.
(b) Customer shall be solely responsible for ensuring that the installation site
complies with all applicable laws, orders, and regulations of federal, state and
local governmental entities including, without limitation, those relating to
environmental conditions.
(c) Notwithstanding anything contained in this Agreement to the contrary, Seller
shall have no liability to Customer, its employees, agents, and customers for
any delay by Seller in completion of any installation or other Service to be
provided by Seller under this Agreement if such delay is attributable to the
failure by Customer to comply with any site requirements or to provide any other
items which are the responsibility of Customer under this Article II.
(d) The site requirements which are solely the Customer's responsibility shall
include but are not limited to the following:
(i) Participate in a joint site survey with Seller
(ii) Interior Space -Clears ten feet (10') from floor to bottom of lowest
obstruction
(iii) Floor Loading(minimum requirements) Structural Analysis always
required
(iv) Power Room 150 lb. per sq. ft
(v) Switch Room 100 lb. per sq. ft.
(vi) Floor Thickness: In accordance with local seismic requirements for
the equipment
(vii) Conduit access to all floors in building
(viii) Local exchange carrier cable available
(ix) Commercial electrical current
(x) Existing building grounding is 5 ohm or less metered
(xi) Battery room ventilation in accordance with local requirements
(xii) Fire suppression system
(xiii) Freight access for a 48' trailer off loading equipment.
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3.2 ADDITIONAL ITEMS TO BE PROVIDED BY CUSTOMER:
(a) Customer will also be responsible for furnishing the items described in this
Section 3.2 as required by the conditions of the particular installation or
other on-site Service at no cost to Seller and such items are not included in
Seller's price for the Services. Seller shall have the right to invoice Customer
for any costs or expenses incurred by Seller as a result of Customer's failure
to provide any of these items described in this Section 3.2 and all such
invoices shall be paid by Customer in accordance with this Agreement.
(i) Access to Building and Work Site Customer shall provide employees of
Seller and its subcontractors free access to premises and facilities
at all hours during the scheduled Service or at such other times as
are requested by Seller. Customer shall obtain for Seller's
employees and its subcontractors' employees any identification and
clearance credentials which are necessary to enable Seller and its
subcontractors to have access to the work site.
(ii) Site Coordination At Seller's request Customer shall coordinate with
Customer's subcontractors, property managers, Regional Bell
Operating Company, Local Exchange Carrier and any other parties and
tenants having rights to the work site or whose participation is
necessary in order for Seller to perform the applicable Services.
(iii) Environmental Conditions Prior to the Services start date, Customer
shall insure that the premises will be dry and free from dust and
Hazardous Materials, including but not limited to asbestos, and that
the premises are in such condition as not to be injurious to
Seller's or its subcontractors' employees or to the Products and
Licensed Materials to be installed. Prior to Services start date and
during the performance of the Services, Customer shall, if requested
by Seller, provide Seller with sufficient data to assist Seller and
its subcontractors in evaluating the environmental conditions at the
work site (including without limitation, the presence of Hazardous
Materials). The price quoted by Seller for Services does not include
the cost of removal or disposal of the Hazardous Materials from the
work site. Customer is responsible for the removal and disposal in
accordance with applicable laws, rules and regulation of the
Hazardous Materials, including but not limited to asbestos, prior to
commencement of Services.
(iv) Sensitive Equipment Prior to the Services start date, Customer shall
inform Seller of the presence of any sensitive equipment at the work
site (e.g., equipment sensitive to static electricity or light).
(v) Repairs to Buildings Prior to the Services start date, Customer
shall make such alterations and repairs to the work site as are
necessary for proper installation of Products and Licensed
Materials.
(vi) Building Readiness Prior to the Services start date, Customer shall
provide extraordinary hauling and hoisting services such as, rigging
or crane services, if
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applicable, and shall arrange for traffic control, if necessary for
the delivery of Products.
(vii) Openings in Buildings - Customer shall furnish suitable openings in
buildings, including, without limitation, elevators and windows as
needed to allow Products to be placed in position, and shall provide
necessary openings and ducts for cable and conductors in floors and
walls as designated on engineering drawings furnished by Seller.
Customer shall fireproof (with steel covers and as otherwise
required by applicable laws, rules, regulations, and codes) all
unopened paths throughout such buildings.
(viii) Surveys Prior to the Services start date, Customer shall provide to
Seller (and, if requested by Seller, to Seller's subcontractors)
surveys (describing the physical characteristics, legal limitations,
and utility locations for the work site) and a legal description of
the site.
(ix) Electrical Current, Heat, Light, and Water Customer shall, in
amounts no less than that ordinarily furnished for similar purposes
in a working office, provide electric power, run all leads to
Seller's power board; provide temperature control and general
illumination (regular and emergency) in rooms in which services are
to be performed or Products stored, provide exit lights; and provide
water and other necessary utilities for the proper execution of
Services.
(x) Building Evacuation Prior to the Services start date, Customer shall
provide building evacuation plans in case of a fire or other
emergency.
(xi) Material Furnished by Customer Unless expressly stated to the
contrary, Seller's prices do not include costs for any Customer
furnished material nor do they include any Seller charges for
engineering, installation, modification, or repair Services to
Customer furnished material. New or used material furnished by
Customer shall be in such condition that it requires no repair and
no adjustment or test effort in excess of that normal for new
equipment. Customer assumes all responsibility for the proper
functioning of such material. Customer shall also provide the
necessary technical assistance and information for Seller to
properly install such material.
(xii) Floor Space and Storage Facilities Customer shall provide, for the
duration of Services, suitable and easily accessible floor space and
storage facilities to permit storing of Products and other material,
tools and other property of Seller and its subcontractors in close
proximity to where they will be used. Where the Services are to be
performed outside of a building or in a building under construction,
Customer shall, in addition to the above requirements, permit or
secure any necessary permission for Seller and its subcontractors to
maintain at the work site, storage facilities for Products,
material, tools, and equipment needed to complete the Services. As
appropriate Customer shall provide Seller's and its subcontractors'
personnel access to toilet facilities.
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(xiii) Easements, Permits, and Rights of Way Customer shall secure prior
to the Services start date and shall maintain for the duration of
the Services all rights-of-way, easements, licenses, and permits and
such other rights and approvals as are necessary to enable Seller to
perform the Services including, without limitation, all construction
and building permits for work to be performed at the work site and
other areas ancillary to the work site such as sidewalks, streets,
alleys, and highways.
(xiv) Security Service Customer shall provide such levels of security as
are necessary to prevent admission of unauthorized persons to
building and other areas where installation Services are performed
and to prevent unauthorized removal of the Products and other
materials. Seller will inform Customer as to which storage
facilities at the work site Seller will keep locked. Such storage
facilities will remain closed to Customer's building surveillance.
(xv) Access to Existing Equipment Customer shall permit Seller reasonable
use of such portions of the existing equipment as are necessary for
the proper completion of such tests as require coordination with
existing equipment. Such use shall not interfere with the Customer's
normal maintenance of equipment.
(xvi) Grounds Customer shall provide access to suitable and isolated
building ground as required for Seller's standard grounding of
equipment. Where installation is performed outside or in a building
under construction, Customer shall also furnish lightning protection
ground.
(xvii) Requirements for Customer Designed Circuits Customer shall furnish
information covering the proper test and readjust requirements for
apparatus and shall furnish requirements for circuit performance
associated with circuits designed by Customer or standard circuits
modified by Customer's drawings such as alarm and environmental
circuits.
(xviii) Cross-Connecting Main Distributing Frames and Installing Heat
Coils Customer shall install such cross-connections and heat coils
as are necessary in connection with the Services.
(xix) Clearing Equipment for Modifications Customer shall remove
cross-connections, transfer service on trunks and sundry working
equipment, and make other arrangements required to permit Seller to
modify existing equipment.
(b) In the event the joint site survey conducted by the parties pursuant to
Section 3.3.2(a) determines that the necessary requirements are not met at the
commencement of the installation of the Products and the Customer needs to
arrange for alterations and/or repairs, the order will be placed on hold until
such time as requirements are met. During such interval, Seller reserves the
right to determine any schedule and price impacts, to treat such product as Bill
and
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<PAGE> 32
Hold, or, with the consent of the Customer, to cancel such order. Customer shall
be responsible for and agrees to pay the applicable cancellation fee if such
order is canceled by Seller.
3.3 ITEMS TO BE FURNISHED BY SELLER
3.3.1 ENGINEERING:
(a) General Review Seller will review the following items as Seller deems
appropriate; switching Products (Products and Software); transmission Products
(Products and Software); power/energy equipment hardware; engineering drawings;
site survey; grounding of the switch; appliance outlets; front and rear aisle
lighting as required; timing cables; distributing frame engineering and
equipment; cable rack and hardware; stanchions; end guards auxiliary framing;
existing cable holes; fiber cable protection systems.
(b) Needs Analysis Seller will perform a needs analysis of the Telephone
Equipment Order (TEO) and the Customer's specified requirements to determine the
equipment solution that meets those requirements.
(c) Records Upon Installation Complete, Seller will turn over to Customer a
complete set of records. Such records include but are not limited to wiring
lists, front equipment drawings, assignment drawings, and interface schematics.
3.3.2 INSTALLATION:
(a) Site Survey Prior to the commencement of installation Services, Seller and
Customer will perform a joint site survey to determine whether the installation
site meets the site requirements referenced in Section 3.1 and whether Customer
has provided the items in Section 3.2. Should Seller determine that the site
does not comply with such site requirements or that Customer has not provided
any item required under Section 3.2, Seller shall specify such deficiencies to
Customer in writing. Seller and Customer shall jointly agree on a course of
action to correct such deficiencies prior to the start of installation Services.
During the joint site survey, Seller and Customer shall also jointly agree upon
the layouts and arrangements for the Products and Licensed Materials to be
installed. Upon the start of installation all changes shall be subject to
additional charges.
(b) Method of Procedure Seller shall prepare a detailed Method of Procedure
("MOP") and review with Customer before starting work. Customer shall review the
MOP prepared by Seller and shall give Seller written acceptance of the MOP by
signing a copy thereof prior to the Services start date. Any changes to the MOP
requested by Customer shall be agreed upon subject to the Change Order process.
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The MOP shall contain the following details:
(i) A concise statement that covers the installation Services to be
performed including the equipment that will be affected and the
hours that such Services are to be performed;
(ii) Specific responsibilities of Seller and Customer;
(iii) Service protection procedures that include, general service
protection rules and special service precautions for the specific
project;
(iv) A time and release schedule of the work operations involving working
equipment and/or circuits in service and;
(v) A method of identifying equipment and cabling to ensure that the
circuits are "cleared" before start of work
(vi) A detailed account of the work operations that the installer will
follow
(vii) The methodology to be used to halt installation Services if trouble
occurs and a general procedure to correct/resume work operations;
(viii) Provide environmental safety concerns, if applicable;
(ix) Obtain Customer signature.
(c) Warehousing, Delivery, Receipt & On-site Storage of Equipment, and General
Cleaning Seller will stage the delivery of Products. Seller's personnel will be
on-site at the time the Products are delivered. Such personnel will accept the
Products, unpack for inventory purposes and inspect such Products for damage.
Seller will resolve all shipping errors inventory discrepancies and damage
issues. This function shall be performed in an area previously designated for
the storage and unpacking of equipment and Product(s). Such area will be
selected based on a location that minimizes movement of material and personnel
through the work site. In the event storage is limited or inadequate, as
determined by Seller, temporary storage facilities such as trailers or
containers may be required. Any fees associated with the procurement of
temporary storage facilities are not included in Seller's quoted prices and
shall be solely the responsibility of the Customer. Materials such as plywood or
masonite will be utilized as necessary, to prevent cable reels, iron work and
other heavy objects from damaging floors, walls and doors. Seller shall perform
general cleaning of the equipment and storage areas (e.g. clearing floors of
debris, packing material, etc.) on a regular basis throughout the installation
period. Rubbish shall be disposed of at Seller's expense and in compliance with
local requirements.
(d) Hardware Assembly Hardware assemblies and overhead cable rack, iron work and
conduit (collectively "Components") will be delivered for specific bays and
cabinets as identified in the firm price quote provided or in the Statement of
Work, attached hereto. Unless included in the SOW, additions of these components
to provide access to other locations (i.e. power rooms, computer rooms,
distributing frames not located with Products, or Products located on separate
floors) will be specifically excluded from the installation Services. Such
additions will only be included in the installation Services for an additional
charge. Seller will place and secure all
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ordered Products in the location specified in the engineering specifications.
Such activity includes but is not limited to:
(i) Mark and drill floors
(ii) Assemble and place floor mounted Products
(iii) Assemble distribution frames
(iv) Erect frames
(v) Align and junction frames
(vi) Install end guards and covers
(vii) Assemble and install fiber protection ductwork
(viii) Mount units and apparatus
(ix) Place batteries
Seller will also erect supporting hardware compatible with purchased
Products. Such activity includes but is not limited to:
(i) Fabricate and install cable racks, bars, rod or stations as
identified in Statement of Work attached hereto
(ii) Erect ladder rack and ladders
(iii) Open and close existing cable holes and slots. Any new cable to
facilitate Products designs the responsibility of the Customer
(iv) Fabricate and install framing aisle lighting conduit and fittings
In addition, Seller will place and designate connecting appliances (MDF
terminal blocks, DSX panels, etc.) provided with order. Such as but not limited
to:
(i) Stamp and/or affix aisle, shelf and unit designations
(ii) Mount and stencil terminal strips
Seller will also extend lighting, A/C circuits and grounding to include
added Products if Products is ordered in job specification. Such activities
include but are not limited to:
(i) Assemble and install lighting fixtures
(ii) Install switches and receptacles
(e) Cable and Wire For cable and wire to be installed by Seller, Seller will
run, tag, and secure metallic and fiber optic cables in an unobstructed
environment a maximum of one hundred (100) feet and power cables a maximum of
fifty (50) feet for the Products and apparatus (this specifically excludes
primary power cables, except on power equipment orders) identified in the
Product order or Statement of Work attached hereto. Seller will wire, attach,
terminate and affix (lock stitched) all cable and wire including fiber optic
cables supplied with purchased Products. This may include but is not limited to
mechanical wire wrapping, soldering, crimping, plugging in of pre-terminated
cables or polishing of fiber optics for purchased Product. Seller will run alarm
cabling, terminate and test for the identified equipment including Customer
provided
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environmental scan points of fire detection and door entry which are less than
fifty (50) feet away and pre-terminated. Seller will verify all copper wiring
placed by the Seller for continuity to detect and analyze opens, shorts,
reversals, and incorrect wiring. Where pairs, quads or groupings are indicated,
the grouping will be verified. Seller will ensure the functionality and
integrity of all fiber directly associated with the installed Products and the
fiber optic cables installed by Seller within the building structure. Seller
will "Dress" all cabling and wiring and provide physical protection. Seller will
properly protect cables at all "break-off" locations, such as the vertical turns
from the overhead cable rack to bay frame work.
(f) Testing Specific test procedures are dependent upon the type of Product
installed and are identified in the installation guide for the particular
product. To ensure that technical design and performance criteria are being met,
testing shall be performed by Seller to obtain an evaluation of the functional,
operational, electrical and mechanical integrity of all Products installed by
Seller. In general the following tests are required for all Product types
furnished and installed by Seller: Seller's activities associated with testing
will include, but not be limited to the following:
(i) Turn on and verify power to installed Products
(ii) Load product software and default parameters required to conduct
local unit loop-back testing to demarcation points.
(iii) Run and connect test specific cross-connects. Remove upon completion
of test(s).
(iv) Perform all unit and system-level tests to ensure Products pass
system and technician evoked diagnostics
(v) Test functionality of circuit packs required by job, at time of
original installation, within the installed unit. Testing of spares
is specifically excluded and will be included only for an additional
charge.
(vi) Test functionality and integrity of Seller installed local alarms.
(vii) Resolve troubles encountered with Products purchased on order. Refer
to Customer any trouble found in Customer provided equipment.
(viii) Maintain test logs and trouble reports and turn over to Customer.
(g) Seller will perform the following Turnover procedures for all installation
Services provided by Seller
(i) Inform Customer of completion of installation cycle
(ii) Provide Customer with all drawings, invoices, logs and test results
per the contract.
(iii) Remove from Customer premises tools and scrap generated from
installation effort.
(iv) Issue job completion notice to Customer.
3.4 ACCEPTANCE
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(a) All installation Services shall be considered complete and ready for
acceptance by Customer on Turnover. Upon completion of the installation, Seller
will submit to Customer a notice of completion or, if Customer has elected
advance-turnover of subsystems, a notice of completion of advance-turnover.
(b) Customer shall promptly make its final inspection of substantial conformance
with the Specifications and do everything necessary to expedite acceptance of
the job. Seller will promptly correct any defects for which it is responsible.
All work will be considered as fully accepted unless Seller receives
notification to the contrary within thirty (30) days after submitting its notice
of completion. Notwithstanding the foregoing, Customer shall be deemed to have
accepted any Products and Licensed Materials upon the placement of the same into
service.
3.5 WORK OR SERVICES PERFORMED BY OTHERS:
Work or services performed at the site by Customer or its other vendors or
contractors shall not interfere with Seller's performance of Services. Seller
shall have no responsibility or liability with respect to such work or Services
performed by others. If Customer or its other vendors or contractors fail to
timely complete the site readiness or if Customer's or its other vendors' or
contractors' work interferes with Seller's performance, the scheduled completion
date of Seller's Services under this Agreement shall be extended as necessary to
compensate for such delay or interference.
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4. ARTICLE IV
ENTIRE AGREEMENT:
4.1 ENTIRE AGREEMENT
The terms and conditions contained in this General Agreement supersede all
prior oral or written understandings between the parties with respect to the
subject matter hereof and constitute the entire agreement between the parties
with respect to such subject matter. The preprinted terms and conditions on
Customer's purchase orders or Seller's sales forms are deleted. The typed or
handwritten provisions of an order which are consistent with the terms of this
General Agreement along with the terms of this General Agreement shall
constitute the entire Agreement between the parties relating to said order.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives on the date(s) indicated.
Lucent Technologies, Inc. Birch Telecom, Inc.
By: /s/ Bill Plunkett By: /s/ David E. Scott
----------------------------- --------------------------
Name: Bill Plunkett Name: David E. Scott
Title: VP Sales -- CLEC Title: President
Date: 2/17/98 Date: 2/16/98
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<PAGE> 38
The mailing, delivery or negotiation of this Agreement by Seller or its agent or
attorney shall not be deemed an offer by Seller to enter into any transaction or
to enter into any other relationship, whether on the terms contained herein or
on any other terms. This Agreement shall not be binding upon Seller, nor shall
Seller have any obligations or liabilities or Customer any rights with respect
thereto, or with respect to the transactions contemplated by the Agreement,
unless and until the Agreement has been approved by the executive officers
and/or Board of Directors of Seller and Seller has executed and delivered this
Agreement. Until such execution and delivery of this Agreement, Seller may
terminate all negotiation and discussion of the subject matter hereof, without
cause and for any reason, without recourse or liability.
PRODUCT PURCHASE ADDENDUM ONE
TO THE
GENERAL AGREEMENT
BETWEEN
BIRCH TELECOM, INC.
AND
LUCENT TECHNOLOGIES INC.
This Addendum One (Contract Number LNMO92697DASBTI (hereafter "Addendum") is
made this ___________ day of, __________ 1998, ("Effective Date") by and between
Birch Telecom, Inc. a corporation, with offices located at 1000 Walnut Street,
Suite 1220, Kansas City, MO 64106 (hereafter "Customer"), and Lucent
Technologies Inc., a Delaware corporation, acting through it's Network Systems
group, with offices located at 600 Mountain Avenue, Murray Hill, NJ 07974
(hereafter "Seller").
WHEREAS, Customer and Seller have entered into a General Agreement (Contract
Number LNM092697DASBTI (hereafter "General Agreement") setting forth the terms
and conditions pursuant to which Seller agrees to sell and Customer agrees to
buy Seller's products, licensed materials and services; and
WHEREAS, Customer and Seller desire to simultaneously enter into an addendum to
the General Agreement to govern certain conditions relating to the purchase or
license for use by Customer of Seller's 5ESS(R)-2000 Switching Systems,
Transmission Systems, and related Licensed Materials.
LUCENT TECHNOLOGIES PROPRIETARY 1
<PAGE> 39
NOW THEREFORE, in consideration of the mutual promises hereinafter set forth and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties agree as follows:
A-1.1 SCOPE OF ADDENDUM ONE
This Addendum One (hereinafter "Addendum") shall govern any purchase order
placed by Customer during the Term for Seller's switching and transmission
products and related Licensed Materials. This Addendum is issued pursuant to and
incorporates the non-conflicting terms and conditions of the General Agreement.
In the event of any conflict or inconsistency between the terms of this Addendum
and the terms of the General Agreement, the terms of this Addendum shall
prevail.
A-1.2 DEFINITIONS
For the purpose of this Addendum, the following definitions will apply:
a) "5ESS(R)-2000 Products" means the 5ESS(R)-2000 Switch, Growth and related
Licensed Materials including, without limitation, Base Software.
b) "5ESS(R)-2000 Switch" means any 5ESS(R)-2000 system containing, at a
minimum, an Administrative Module (AM), Communications Module (CM), at
least one (1) switch module, and Base Software. Any such Switch can act as
a host for Optically Remote Modules ("ORMs"), Remote Switch Modules
("RSMs") and/or Extended Switch Modules ("EXMs").
c) "Base Software" means the operating system and related Software, and
operations, administration and maintenance features and functions, for all
Seller's switch-based platforms.
d) "E-AIU Products" means any of the products described on Attachment A to
this Addendum and related Software.
e) "Growth" means any 5ESS(R)-2000 hardware or software not purchased with
the associated initial 5ESS(R)-2000 Switch and required to support the
expansion of such 5ESS(R)-2000 Switch, and any ORM, RSM, or EXM hardware
or software not purchased with the associated initial ORM, RSM, or EXM and
required to support the expansion of such ORM, RSM, or EXM.
f) "List Price" means the price set forth on the Customer Price List.
g) "SLC-2000 Products" means any of Seller's SLC-2000 family of transmission
products, including, but not limited to, the products described on
Attachment B to this Addendum and related Software.
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<PAGE> 40
h) "Switch Module" means a Module Control/Time Slot Interchange Unit and its
associated Peripheral units working with the embedded 5ESS(R)-2000 Switch
or with an existing Remote Switch Module site and related Software.
i) "Total Paid Direct Purchases" means all Customer purchases ordered under
this Addendum for which Seller has received payment, including hardware,
Software, engineering, installation, training and documentation which have
been purchased from Seller without the intervention of any third party,
including but not limited to distributors or resellers.
Any capitalized terms used but not separately defined in this Addendum shall
have the meanings set forth in the Agreement.
A-1.3 PRICING PLAN FOR 5ESS(R)-2000 SWITCHES, E-AIU PRODUCTS AND SLC-2000
PRODUCTS
Seller will provide the following discounts off the List Price for all purchases
by Customer directly from Seller of the following 5ESS(R)-2000 Products:
5ESS(R)-2000 DISCOUNT TABLE
--------------------------------------------------------------------------------
SWITCH TYPE INITIAL SWITCH GROWTH AND ADDITIONS
DISCOUNT PERIOD SWITCH DISCOUNTS
--------------------------------------------------------------------------------
5ESS(R)-2000 Switch **** ****
--------------------------------------------------------------------------------
RSM/ORM/EXM **** ****
--------------------------------------------------------------------------------
Switch Module for **** ****
5ESS(R)-2000 Switch
--------------------------------------------------------------------------------
Switch Module for **** ****
RSM/ORM/EXM
--------------------------------------------------------------------------------
The Customer may elect to purchase one or more 5ESS(R)-2000 Switches, one or
more Switch Module(s)-2000, or one or more initial RSMs, ORMs, or EXMs at any
one given location, at the discount off List Prices set forth for the Initial
Switch Discount Period in the table above, at any time during the period of five
years following the Effective Date. The Customer may elect to purchase any
Growth items at the discount off List Prices set forth for the Growth and
Additions Switch Discount in the table above, at any time during the Term of
this Agreement.
During the period of five years following the Turnover of any 5ESS(R)-2000
Switch or following Turnover of any RSM, ORM, or EXM, Customer may elect to
purchase Growth and related Licensed Materials with respect to that Switch or
RSM, ORM, or EXM, as the case may be, at the following discounts: (a) during any
three periods of six months selected by Customer in the five-year period
following Turnover, Customer's purchases shall be at the discount off List
Prices set forth for the Initial Switch Discount
LUCENT TECHNOLOGIES PROPRIETARY 3
<PAGE> 41
Period in the table above, and (b) for purchases that are made in the five-year
period following Turnover but that are not made during any of the three periods
of six months Customer is entitled to the discounts for the Initial Switch
Discount Period, then the Growth And Additions Switch Discounts in the table
above shall apply. The following restrictions apply: The first two six-month
periods must be used within three years after Turnover of the 5ESS(R)-2000
Switch, RSM, ORM, or EXM, as the case may be, and the third six-month period
must be used during years four or five following Turnover of the 5ESS(R)-2000
Switch, RSM, ORM, or EXM, as the case may be.
E-AIU Products and associated components may be purchased by the Customer for
the prices listed in Attachment A to this Addendum One. That pricing structure
will be in effect for the Term of the Agreement. Customer may purchase
5ESS(R)-2000 Circuit Line Packs (including Analog Line Packs and ISDN Line
Packs) at the prices specified in Attachment A during the Term of this
Agreement.
SLC-2000 Products purchased in substitution for E-AIU Products that are
unavailable to fulfill Customer's order may be purchased by the Customer for the
prices listed in Attachment B to this Addendum One until E-AIU Products become
generally available.
Should growth Peripheral Interface Data Buses (PIDB) be required for an E-AIU to
provide service beyond the 13 Call Completion Seconds (CCS) configured in the
proposal, additional PIDB pairs #10 and 12 shall be provided at the following
price:
Description Price
PIDB pair 10 ****
IDB pair 12 ****
Any purchase order placed pursuant to this Addendum will reference Contract
Number LMN092697DASBTI to qualify for the discounts, allowances and incentives
incorporated herein. The applicable merchandise class for Seller's 5ESS(R)-2000
Products and related Licensed Materials shall determine the applicable discount
level. Engineering and Installation services are excluded from the discounted
pricing in this Addendum.
A-1.4 PRICING PLAN FOR SWITCH SOFTWARE RELEASES
For purposes of this section, the fees for Base Software releases shall mean the
Software Right-to-Use (RTU) and Office Data Administration (ODA). During the
Term, Customer's purchase of an initial 5ESS(R)-2000 Switch will include the
then-current Base Software release. However, if Customer orders an initial
5ESS(R)-2000 Switch which is shipped within forty-five (45) days prior to the
published general availability of the next Base Software release, Seller will
provide such Base Software release at no charge. Additional Base Software
releases licensed by Customer will be at a cost of $80,000 per initial
5ESS(R)-2000 Switch for Base Software releases. Seller will be responsible for
all engineering and installation charges associated with the Base Software
release furnished by Seller under this Addendum. The above price and services
are for the software retrofit
LUCENT TECHNOLOGIES PROPRIETARY 4
<PAGE> 42
only, any hardware requirements to support a release will be quoted separately
for product, engineering and installation.
A-1.5 5ESS(R)-2000 SWITCH TRAINING INCENTIVE
Seller will provide forty (40) tuition-free days for three (3) persons for its
initial 5ESS(R)-2000 Switch. An additional forty (40) days each of tuition free
training will be provided for one (1) person per 5ESS(R)-2000 Switch ordered
after the initial 5ESS(R)-2000 Switch. An additional forty (40) days each of
tuition free training will be provided for one (1) person for every three
5ESS(R)-2000 Switches ordered after the initial 5ESS(R)-2000 Switch. This
training may be used any time during the first twelve (12) months after Switch
installation. Customer is responsible for all associated travel and living
expenses for Customer personnel. Seller, at its option, shall offer training at
the Altamonte Springs Training Center. While Seller recommends core courses from
its Seller's Training Catalog, any 5ESS(R)-2000 Switch-related courses may be
taken at Customer discretion.
A-1.6 FIVE FACILITY ACCESS INCENTIVE
Seller will provide Customer access to Seller's Feature Interactive Verification
Environment (FIVE) facility in Lisle, Illinois so that Customer may test the
following: new Seller features, verification of new applications, and simulation
of call scenarios. Customer may use such facility on a billable basis to
integrate equipment for Customer-specific applications, subject to Seller's
General Agreement respecting use of that facility. Such access is given on a
reservation basis. Customer agrees to be reasonable in its requests for
reservations and will provide reasonable notice of any cancellation.
A-1.7 FEATURE ACTIVATION AND RECONCILIATION
All 5ESS(R)-2000 Switch software furnished under this Addendum will include free
Feature Activation Counting and Reconciliation (FACR). This feature will be used
for the sole purpose of tracking and billing optional RTU features which are
activated by Customer. Customer hereby agrees to the implementation of this
feature in the 5ESS(R)-2000 Switch office. The purpose of the implementation is
to facilitate a semi-annual network audit of RTU features activated by Customer,
with the cooperation of Customer. Contractual prices and billing terms will be
applied to the results of the semi-annual audit.
Records and information gathered from the semi-annual audits will be used
exclusively for the sole purpose of billing Customer for any activated optional
RTU features.
RTU Fees that are activated, tracked by FACR, and are reported in the
Semi-Annual audit will be discounted 50% as described in section 1.7 of this
Addendum. Any features not tracked by FACR and purchased outside the initial
discount period will be discounted 25% (i.e. maintenance features are not
tracked by FACR).
A-1.8 ENTIRE AGREEMENT
LUCENT TECHNOLOGIES PROPRIETARY 5
<PAGE> 43
Except as specifically modified herein, all terms and conditions of the General
Agreement shall remain in frill force and effect. The terms and conditions
contained in this Addendum and those non-conflicting terms and conditions of the
General Agreement supersede all prior oral and written understandings between
the parties and shall constitute the entire agreement between the parties with
respect to the subject matter herein. This Addendum shall not be modified or
amended except by a writing signed by an authorized representative of both
parties.
IN WITNESS WHEREOF, the parties have caused this Addendum to be executed by
their duly authorized representatives on the date(s) indicated.
Birch Telecom, Inc. Lucent Technologies, Inc.
By: /s/ David E. Scott By: /s/ Bill Plunkett
-------------------------- -----------------------------
Typed Name: David E. Scott Typed Name: Bill Plunkett
Title: President Title: Vice President, Sales
Date: 2/16/98 Date: 2/17/98
LUCENT TECHNOLOGIES PROPRIETARY 6
<PAGE> 44
Attachment A to Addendum One of Contract LNMO92697DASBTI
E-AIU Pricing
Incentive E-AIU Pricing
Customer may purchase the following E-AIU Products for its initial E-ART
deployment at one collocation site for the special price of ****
600 Type AIU Cabinet e/w
1472 Analog
160 ISDN
Description NSEP Quantity
--------------------------------------------------
6 Shelf Empty EAIU Cabinet EAIU600 1
Controller Pack DAC624 6
Ringing Control Pack RGP100 2
Analog Line Pack LPZ100 46
ISDN Line Pack LPANSI 10
Subscriber Loop Measurement SLIM2 1
Total Price ****
This is a one-time only price for the first E-AIU system.
Regular E-AIU Pricing
Once the first E-AIU system is purchased at the above special incentive price,
future E-AIU Products shall be priced as identified below.
600 Type AIU Cabinet e/w
1472 Analog
160 ISDN
Global
List Discounted Extended
Description NSEP Quant. Price Price Price
--------------------------------------------------------------------------------
6 Shelf Empty EAIU Cabinet EAIU600 1 66000 **** ****
Controller Pack DAC624 6 6500 **** ****
Ringing Control Pack RGP100 2 3000 **** ****
Analog Line Pack LPZ100 46 2820 **** ****
ISDN Line Pack LPANSI 10 9426 **** ****
Subscriber Loop Measurement SLIM2 1 3900 **** ****
Total Price ****
While the quantities and extended prices set forth in the table above reflect a
particular size and configuration, Customer may purchase any quantity of E-AIU
Products at the unit prices set forth in the Discounted Price column of the
table above.
1
<PAGE> 45
Attachment B to Addendum One of Contract LNMO92697DASBTI
Interim SLC-2000 Product Pricing
Until E-AIU Products are generally available in quantities sufficient to meet
Customer's orders, Seller shall sell the following SLC-2000 Products to Customer
for the total purchase price of **** plus engineering, installation and
shipping:
1. 7' Bay Frame Configuration
2. Metallic DS1 Feeder Interface
3. 8 DS1 Feeders (2 ELIUs + 1 protect)
4. e/w 672 POTS (168 SPQ40l Channel Units)
5. e/w 96 ISDN (24 ISDN Channel Units)