Master Maintenance and Support Services Agreement - Equant Integration Services Inc. and Clarent Corp.
MASTER MAINTENANCE AND
SUPPORT SERVICES AGREEMENT
BETWEEN
EQUANT INTEGRATION SERVICES, INC.
A NEW YORK CORPORATION WITH A PRINCIPAL PLACE OF BUSINESS AT
45 ORVILLE DRIVE
BOHEMIA, NEW YORK 11716
(HEREINAFTER "EQUANT")
AND
CLARENT CORPORATION
A CALIFORNIA CORPORATION WITH A PRINCIPAL PLACE OF BUSINESS AT
850 CHESAPEAKE DRIVE
REDWOOD CITY, CALIFORNIA 95063
(HEREINAFTER "CUSTOMER")
EQUANT CONTRACT NUMBER TM-3651
DATED: DECEMBER 29, 1998
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TABLE OF CONTENTS
PAGE
PREAMBLE................................................................. 1
ARTICLE 1 - DEFINITIONS................................................. 1
ARTICLE 2 - TERM........................................................ 2
2.1 Term of Agreement......................................... 2
ARTICLE 3 - SERVICES.................................................... 3
3.1 Placement of Service Requests............................. 3
3.2 Provision of Services and Pricing......................... 3
3.3 New Services.............................................. 4
3.4 Special Bid Process....................................... 4
3.5 Forecasting............................................... 4
ARTICLE 4 - INVOICES AND PAYMENTS....................................... 5
4.1 Commencement of Invoicing................................. 5
4.2 Invoicing................................................. 5
4.3 Payment................................................... 5
4.4 Travel Expenses........................................... 6
4.5 Adjustments to Charges.................................... 6
4.6 Taxes..................................................... 6
4.7 Disputed Charges.......................................... 7
4.8 Relocation of a Service Center............................ 7
4.9 Discontinuance of Maintenance Invoicing................... 7
ARTICLE 5 - CONFIDENTIAL INFORMATION; PROPRIETARY RIGHTS................ 8
5.1 Confidential Information.................................. 8
5.2 Confidentiality of Agreement.............................. 8
5.3 Third Party Information................................... 9
5.4 Return or Destruction of Confidential Information......... 9
5.5 Waivers................................................... 9
5.6 Required Disclosure....................................... 9
5.7 Equitable Relief.......................................... 9
5.8 Infringement.............................................. 9
5.9 Unauthorized Use.......................................... 10
ARTICLE 6 - REPRESENTATIONS AND WARRANTIES.............................. 10
6.1 General................................................... 10
6.2 Service Warranties........................................ 11
6.3 Limitation of Warranties.................................. 11
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TABLE OF CONTENTS
(CONTINUED)
PAGE
ARTICLE 7 - OBLIGATIONS AND COVENANTS OF THE PARTIES................... 11
7.1 Program Managers......................................... 11
7.2 Foreign Corrupt Practices Act............................ 12
7.3 Access................................................... 12
7.4 Right of Entry........................................... 12
7.5 Conduct of Equant Personnel.............................. 12
7.6 Cooperation with Other Vendors........................... 12
7.7 Manner of Provision of Services.......................... 12
7.8 Unauthorized Access...................................... 13
7.9 Protection of Data by Customer........................... 13
ARTICLE 8 - IMPORT AND EXPORT OF EQUIPMENT............................. 13
8.1 Import/Export of Equipment and Permits................... 13
8.2 Risk of Loss............................................. 14
8.3 Compliance with Laws..................................... 14
8.4 Export Control Regulations............................... 14
8.5 Import and Export Limitations............................ 14
ARTICLE 9 - INDEMNIFICATION AND LIMITATIONS OF LIABILITY AND REMEDIES.. 15
9.1 Indemnification.......................................... 15
9.2 Consequential Damages.................................... 16
9.3 Limitations of Liability................................. 17
9.4 Exclusive Remedies....................................... 17
ARTICLE 10 - INSURANCE.................................................. 17
10.1 Insurance Provided by Equant............................. 17
10.2 Certificates of Insurance................................ 18
ARTICLE 11 - FORCE MAJEURE; OTHER EXCUSES............................... 18
ARTICLE 12 - TERMINATION................................................ 18
12.1 Grounds for Termination and Remedies..................... 18
12.2 Rights upon Termination.................................. 20
12.3 Costs of Termination..................................... 20
12.4 Termination for Convenience.............................. 20
12.5 Survival................................................. 21
12.6 Termination Assistance................................... 21
ARTICLE 13 - GENERAL.................................................... 21
13.1 Notices.................................................. 21
13.2 Disputes................................................. 22
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TABLE OF CONTENTS
(CONTINUED)
PAGE
13.3 Choice of Law............................................. 23
13.4 Jurisdiction.............................................. 23
13.5 Change Control............................................ 23
13.6 Assignment................................................ 23
13.7 Non-Solicitation.......................................... 24
13.8 Waiver.................................................... 24
13.9 Counterparts.............................................. 24
13.10 Headings.................................................. 24
13.11 Severability.............................................. 24
13.12 Entire Agreement.......................................... 24
13.13 Independent Contractor; Subcontractors.................... 24
13.14 Third Party Beneficiaries................................. 25
13.15 Consents, Approvals and Requests.......................... 25
13.16 Good Faith and Fair Dealing............................... 25
13.17 Covenant of Further Assurances............................ 25
13.18 Publicity................................................. 25
STATEMENT OF WORK........................................................ 27
EQUANT NORMAL BUSINESS HOURS............................................. 28
SERVICE REQUEST PROCESS AND SPECIAL BID PROCESS.......................... 31
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This MASTER MAINTENANCE AND SUPPORT SERVICES AGREEMENT is executed by and
between Equant Integration Services, Inc., (hereinafter, "EQUANT"), a New York
Corporation with a principal place of business at 45 Orville Drive, Bohemia, New
York 11716 and Clarent Corporation (hereinafter "CUSTOMER"), a California
corporation with a principal place of business at 850 Chesapeake Drive, Redwood
City, California 94063.
WHEREAS, Equant provides a variety of services to the computer and
telecommunications business sector,
WHEREAS, Customer wishes to obtain the services particularly described in this
Agreement and each fully executed Statement of Work (as hereinafter defined),
and Equant is willing to provide such services in accordance with the terms of
this Agreement;
WHEREAS, Customer and Equant agree that Equant shall be Customer's non-exclusive
provider of the Services (as hereinafter defined) described in each Statement of
Work; and
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter contained and of other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the Parties agree as follows:
Article 1 - DEFINITIONS
In addition to capitalized terms defined elsewhere herein, the following
capitalized words and phrases listed below will have the meanings given
below.
AFFILIATE of a Party means any entity that directly or indirectly
---------
controls, is controlled by or is under common control
with that Party. Control shall be deemed to refer to
the direct or indirect power (i) to vote 51% or more of
the securities having ordinary voting power for the
election of directors of such entity or (ii) to direct
or cause the direction of the management or policies of
such entity, whether by contract or otherwise.
AGREEMENT means this Master Maintenance and Support Services
---------
Agreement and any and all Attachments (as hereinafter
defined), schedules and exhibits thereto and all
amendments hereto and thereto.
ATTACHMENT means any of the following attachments referenced in
----------
and appended to this Agreement and made a part hereof.
BUSINESS DAYS means the locally recognized working days in the
-------------
countries where the Services are to be provided, as
outlined in an exhibit to each Service Request,
excluding locally recognized Equant holidays.
BUSINESS HOURS means the Equant normal working hours for each day in
--------------
each country within the territory where the Services
are to be provided, (except local Bank holidays in such
country), as set forth in Exhibit 1 hereto.
CHARGES means the prices for Services, as set forth in an
-------
exhibit to a Service Request.
COMPONENT means a part, module or portion of any whole unit of
---------
Equipment, including without limitation, cards, drives
and subassemblies.
EFFECTIVE DATE means the date upon which the terms and conditions of
--------------
this Agreement come into full force and effect, as set
forth herein.
END USER means Customer's customer, for whom Services are to be
--------
provided under this Agreement, pursuant to an accepted
Service Request.
EQUIPMENT means a whole unit or item of hardware installed at the
---------
End User Sites for which Equant is providing the
Services. Equipment is comprised of various Components.
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MAINTENANCE CHARGES means the fees for Maintenance Services (as
-------------------
hereinafter defined) invoiced by Equant to
Customer and paid by Customer to Equant.
Maintenance Charges may also be referred to as
Recurring Charges
MAINTENANCE SERVICES means the services as described in a Statement of
--------------------
Work and may be ordered in a Service Request,
which is provided for the Equipment, to restore
the Equipment to proper operational condition in
the event of a Fault.
MANUFACTURER AND/OR means the actual manufacturers and/or suppliers of
-------------------
SUPPLIER the Equipment, including their subcontractors and
--------
agents.
NEW SERVICES means any type of service not currently described
------------
in any executed Statement of Work, or any services
in a country where Equant is not currently
providing Services on behalf of Customer.
NON-RECURRING SERVICES means Services which are not provided to an End
----------------------
User on a regular basis, including but not limited
to site surveys and installations.
PARTIES means collectively Customer and Equant. The
-------
Parties may be individually referred to as a
Party.
SERVICE CENTER means the location from which the Services for a
--------------
given Site are performed.
SERVICE REQUEST means the request made by Customer to Equant, for
---------------
the provision of any Services specified in a
Statement of Work for an End User.
SERVICES means the services being provided by Equant to
--------
Customer under this Agreement and described herein
and in a Statement of Work.
SITE means a Customer location and is included in the
----
Site List provided in a Service Request (as
amended from time to time) where Equant is to
provide Services to Customer under this Agreement.
SITE FORM means the sample forms attached to a Statement of
---------
Work, and any original forms signed by the duly
authorized representatives of the Parties,
describing the Equipment to be maintained, the
Site address, the charges for the Services, the
responsibility for spare parts, the invoicing
address and the Service Center and any other
pertinent information.
SPECIAL BID PROCESS means the process by which the Parties obtain
-------------------
pricing for New Services.
STATEMENT OF WORK means the Statement of Work provided as Attachment
-----------------
A (Maintenance and Support of Customer
Technologies Inc. and Multi-Vendor Equipment)
hereto, and any other Statement of Work that may
be executed between the Parties.
Article 2 - TERM
2.1 TERM OF AGREEMENT.
(a) The term of this Agreement shall be effective on December 14,
1998 and continue in effect until December 14, 2001 (hereinafter,
the "Initial Term"), unless early terminated as provided
hereunder (including, without limitation, as provided in Article
2.1 (c) or Article 12 below), except that any provisions relating
to liquidated damages shall continue in effect.
(b) Following the expiration of the Initial Term, this Agreement may
be renewed for successive one (1) year periods (the "Extended
Terms") by Customer sending written notice of renewal to Equant
at least sixty (60) days prior to the expiration of the Initial
Term or any Extended Term (together referred to as the "Term").
Not withstanding the foregoing, the rights and obligations
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of the Parties shall continue in full force and effect for all
Service Requests which terminate after the expiration date of the
Term of this Agreement.
(c) Either party may terminate this Agreement, without recourse or
liability, at any time upon ninety (90) days written notice to
the other Party.
Article 3 - SERVICES
3.1 PLACEMENT OF SERVICE REQUESTS.
(a) Unless otherwise advised by Equant, Customer's contact for the
placement of all Service Requests shall be the Equant Program
Manager, and all Service Requests shall be delivered to the
attention of the Equant Program Management Office, located at 45
Orville Drive, Bohemia, New York 11 716.
(b) Each Service Request shall refer to and indicate it is submitted
subject to the terms and conditions of this Agreement; however,
the Parties hereby agree that the terms and conditions contained
in this Agreement shall apply, whether referenced or not, to any
Service Request issued to Equant. No provision which is in
addition to or inconsistent with the provisions of this Agreement
appearing on any form originated by Equant, including but not
limited to, Equant's acknowledgment of a Service Request, will be
applicable unless such provisions is expressly accepted in
writing by the Parties. in the event of any conflicts or
ambiguities appearing between the terms of this Agreement, any
Statement of Work and any fully executed Service Request, the
Service Request shall govern and control both the Statement of
Work and this Agreement, and the Statement of Work shall govern
and control as to this Agreement.
(c) Customer will place all Services Requests to Equant to provide
specific Services as described in the Statement of Work, using
the ordering process set forth in the Statement of Work and the
attachments thereto, and Equant may accept such Service Requests
and shall acknowledge via facsimile transmission to the Customer
Program Manager. Except as set forth in 3.1(e), Equant shall
accept all Service Requests which are in compliance with a fully
executed Statement of Work. In the event a Service Request is
issued with incorrect information or is otherwise not in
accordance with the requirements of this Agreement, Equant shall
immediately contact the Customer Program Manager, and the Parties
shall cooperate in good faith and use diligent efforts to correct
such incorrect information so that the Service Request may be
timely processed. Notwithstanding the foregoing, Equant shall
have no liability for any damages or delays caused by the
incorrect Service information contained therein provided however,
the Service Request, as received was correctly processed and the
Services, as stated in the Service Request were properly provided
by Equant.
(d) Customer may order changes within the scope of a previously
executed Statement of Work or to previously submitted and
executed Service Requests, provided that the process set forth
under Section 13.5 has been complied with.
(e) The Parties understand that in individual instances, despite the
exercise of reasonable commercial efforts, it may not be possible
to negotiate agreements with End Users containing terms and
conditions which are in conformance with the terms and conditions
of this Agreement. In such instances, Customer's Service
Requests may contain terms and conditions which differ from those
set forth herein. Equant agrees to consider such Service
Requests in good faith and shall use commercially reasonable
efforts to accommodate the changed terms and conditions with an
appropriate price adjustment. Prior to the provision of Services
for any such Service Requests, the acceptance of such Service
Requests shall require the approval in writing by the appropriate
parties within Equant.
3.2 PROVISION OF SERVICES AND PRICING.
(a) Subject to the terms of this Agreement and commencing as of the
Effective Date, upon request by Customer made by submission to
Equant of a Service Request in accordance with Section
3
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3.1(c), Equant will provide to Customer the Services described in
each Statement of Work executed by the Parties at the Sites for
the Charges set forth in the relevant Statement of Work or as
such Services and Charges may be modified by an accepted Service
Request. At the request of Customer, Equant may also provide
services not then described in the Statement of Work, as set
forth in Section 3.3 below.
(b) Customer may at any time add additional Sites, and the price for
Services at any Site added to this Agreement shall be determined
in accordance with the pricing exhibit attached to each fully
executed Statement of Work, or as such Charges may be modified by
an accepted Service Request. In the event that Charges are
modified by an accepted Service Request, the Parties shall
execute an amendment to the relevant Statement of Work to
incorporate such modified Charges.
3.3 NEW SERVICES.
Customer may request Equant to provide services not described in any
previously executed Statement of Work, or Services in countries which
are not listed in the pricing exhibit in a previously executed
Statement of Work ("NEW SERVICES"); provided, however, that such a
request shall not require Customer to procure any such New Services
from Equant. Customer may request pricing on a per project basis
whereby Equant shall provide a Price Quote (as hereinafter defined) in
accordance with the Special Bid Process.
3.4 SPECIAL BID PROCESS.
(a) Upon receipt of a request for New Services, Equant will promptly
(but in no event more than ten (10) Business Days) thereafter,
complete the Special Bid Process and advise Customer accordingly.
(b) As part of the Special Bid Process, Equant shall investigate and
advise Customer of the feasibility and availability of the
proposed New Service, and to the extent possible, whether Equant
is legally permitted to provide the New Service in a particular
country. If Equant determines that it is feasible to provide the
New Services, and the New Service can legally be provided in a
country requested by Customer, Equant shall provide Customer with
a Price Quote for the provision of such New Services similar or
more favorable to those at or under which any comparable or
similar Services are then being provided and agree to provide the
New Services in such geographic locality if the Parties mutually
agree upon such terms. Thereafter, Customer will have ten (10)
Business Days to accept or reject such price, terms and
conditions. If Customer accepts the Price Quote, the Parties
will execute a new Statement of Work (if required), amend the
relevant pricing exhibit and/or any other exhibits as
appropriate, to reflect such price, terms and conditions. Such
New Services will be deemed Services under this Agreement, and
Equant will commence provision of such Services, based upon
receipt of a Service Request. A detailed diagram of the Services
Request process and the Special Bid Process has been attached
hereto as Exhibit 2.
3.5 FORECASTING.
Customer shall, on a quarterly basis, provide Equant with a rolling
forecast that estimates the Service Requests and/or any New Services
which Customer plans to issue to Equant for the following quarter, on
a regional basis. This forecast is provided as a planning document
and is not binding upon Customer or Equant. Failure by Customer to
provide such forecasting information shall not be deemed a material
breach of this Agreement.
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Article 4 - INVOICES AND PAYMENTS
4.1 COMMENCEMENT OF INVOICING.
(a) Maintenance Charges for Equipment shall commence on the date set
forth in the relevant Service Request. All Maintenance Charges
shall be pro-rated to the last calendar day of the calendar
quarter. Thereafter, Customer shall be invoiced quarterly in
advance.
(b) Non-Recurrent Charges shall be invoiced upon completion.
(c) All other Charges invoiced by Equant shall be invoiced on a
current basis.
4.2 INVOICING.
All invoices shall be rendered in U.S. Dollars, by Equant from its
headquarters at 45 Orville Drive, Bohemia, New York to Customer at 850
Chesapeake Drive, Redwood City, California 94063.
4.3 PAYMENT.
(a) GENERAL.
(i) Charges for Services will be as set forth in the Services
List and Pricing exhibit in each Statement of Work or as
such may be modified by an accepted Service Request.
(ii) Except as set forth in Sections 4.7 and 13.2, Customer will
pay Equant in U.S. Dollars, within thirty (30) calendar
days after receipt of a proper invoice from Equant, and
will remit payments to Equant either by bank transfer or
will mail all payments to Equant at its principal place of
business, without reduction or deferment on account of any
claim, counterclaim or set off.
(b) FORM OF INVOICES.
All invoices will be reasonably detailed in a form to be mutually
agreed upon and will, in any event, clearly identify all taxes,
and charges. Other categories may be specified by Customer and
agreed to by Equant. In the event that laws, regulations or
customs dictate a different invoice format or invoicing
practices, Equant will endeavor to comply with such laws or
customs while remaining as close as possible to the Parties'
agreement and intent.
(c) LATE PAYMENT.
In the event that Customer fails to pay any undisputed charges
due to Equant under this Agreement within thirty (30) after
receipt of any Equant invoice, upon expiration of the thirty (30)
day period, Equant shall send written notification of such
overdue invoice(s) in accordance with Article 13.1, specifying
the nature of such charges, with a copy to the Customer Program
Manager. In the event that such overdue undisputed amounts
remain unpaid for thirty (30) days after the date of the
aforementioned notice, Equant shall sent a second notice,
advising Customer that (i) interest shall accrue on all such
amounts at the rate of one and one half percent (1.5%) per month
commencing on thirty (30) days after receipt of a proper
invoice., and (ii) Equant reserves the right to suspend all
Service at the Site where the overdue undisputed amount has
accrued if payment has not been received in full by the tenth
(10/th) /calendar day after the date of the second notice. Prior
to Equant initiating any action in accordance with Section
12.1(a), the Parties shall work together to resolve any disputed
accounts in accordance with Section 13.2(a).
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4.4 TRAVEL EXPENSES.
In the event on site intervention is provided for any End User Site
located further than (i) fifty (50) kilometers of a Service Center
outside of the United States or (ii) fifty (50) miles from a Service
Center inside of the United States, all reasonable incurred travel
expenses shall be invoiced by Equant and paid by Customer, provided
that Customer's travel and expense policies (which have been provided
upon execution of this Agreement) have been complied with. Customer
shall pre-approve all such expenses when international travel is
required, or any estimated domestic travel and expenses exceed One
Thousand Five Hundred ($1,500.00) Dollars. However, Equant shall not
be responsible for any delays in the provision of Services in the
event that such pre-approval is not timely provided. Equant shall
attach all related documentation for such expenses to the relevant
invoice. All locations for which travel and living expenses will be
incurred shall be identified in each Statement of Work.
4.5 ADJUSTMENTS TO CHARGES.
The charges for Services provided by Equant under this Agreement are
set forth in Exhibit 1 of each Statement of Work; provided however,
that such charges may be adjusted in accordance with Sections 3.3,
4.5(a) and 4.5(b).
(a) CURRENCY PROTECTION.
The charges as set forth in Exhibit 1 are in U.S. Dollars, shall
be converted into foreign currencies at the exchange rate as
published in the United States Wall Street Journal, ("Journal")
prevailing at the time of execution of this Agreement; the
Contract Exchange Rate ("CER"). In order to offset risks of
negative currency fluctuations for Equant, and to allow Customer
to benefit from positive fluctuations, the global effect of
currency deviations from the CER will be calculated monthly, and,
any resulting currency loss will be reimbursed to Equant and any
currency gains will be credited to Customer. Each local Equant
Affiliate or subcontractor will issue their monthly invoices in
their respective local currency to Equant. Such invoices shall
be converted at the prevailing exchange rate, as published in the
Journal, at the end of the given month to determine the Current
Rate Monthly Charge ("CRMC"). The CRMC will then be compared to
the monthly Charges based on the CER. The difference, that being
the CRMC, less the CER, shall equal the Monthly Exchange
Adjustment CMEA"). The cumulative MEA for all Equant countries
will be either added or subtracted to the following monthly
invoice to Customer.
(b) PERIODIC REVISIONS.
Charges for all Services shall be reviewed and revised in
accordance with the following (each, a "Periodic Revision"):
(i) Six (6) months after the effective date of each Statement
of Work, the Parties shall review the charges contained
therein, and within ten (10) business days from the six
(6) month anniversary date, the Parties shall mutually
agree to the revised charges, which shall be incorporated
into the relevant Statement of Work as an amendment
thereto.
(ii) Thereafter, every January 1, the Parties shall review the
charges contained therein, and by January 15/'h, /the
Parties shall mutually agree to the revised charges, which
shall be incorporated into the relevant Statement of Work
as an amendment thereto.
(iii) No Periodic Revisions shall be applied to any Service
Request which has a term of one (1) year, or has been in
effect for less than twelve (12) calendar months.
4.6 TAXES.
(a) Equant will invoice Customer for all sales, use, federal excise
or value-added taxes on the Services provided to Customer, except
where Customer timely provides Equant with an
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exemption certificate, and Customer will be obligated to
reimburse and/or pay, as applicable, any such taxes, but only to
the extent and in the amounts that such taxes are lawfully and
properly imposed and assessed, and correctly calculated. However,
Customer shall not pay or be responsible for any taxes: (i)
imposed on or with respect to Equant's net or gross income,
capital or franchise taxes; (ii) in the nature of employee
withholding taxes, FICA, Medicare taxes, unemployment insurance
or other taxes relating to Equant personnel performing services
hereunder; (iii) imposed on, with respect to, or in connection
with Equant's purchase of any supplies, materials, equipment,
software for use in providing the Services; (iv) based on or in
respect of property or equipment used in providing the Services;
or (v) in the nature of licenses or permits required to provide
the Services.
(b) Each Party will provide and promptly make available to the other
any tax exemption certificates or other tax-related information
reasonably requested by the other Party as it relates to the
provision of Services under this Agreement.
(c) Customer agrees that at no time during the Term of this Agreement
or any extension thereof, will Customer be able to recover or
reclaim Value Added Taxes (hereinafter "VAT") imposed by the
local taxation authorities, nor shall Customer attempt to do so.
In the event that Equant is fined as a result of that action,
Customer will fully indemnify Equant for all such fines and
penalties. Notwithstanding any of the foregoing, any attempt by
Customer to reclaim or recover VAT shall be considered null and
void.
(d) However, in the event that Equant and Customer agree to a
different invoicing structure than set forth above, which would
lawfully permit Customer to reclaim VAT, then the Parties agree
to amend this Agreement accordingly.
4.7 DISPUTED CHARGES.
(a) If Customer in good faith believes there is a Dispute (as defined
in Section 13.2) concerning the accuracy or applicability of any
Charge or other invoiced amount, it will notify Equant of the
nature of such Dispute not later than thirty (30) calendar Days
after receipt of invoice and will provide detailed support for
such Dispute together with such notice of Disputed Charges. In
such an event, Customer may withhold payment of such disputed
Charges or other invoiced amounts but will continue to pay all
undisputed Charges and amounts. Failure by Customer to identify
a disputed Charge or other invoiced amount prior to payment of
such Charge or amount will not limit or waive any of its rights
or remedies with respect thereto, including its right to withhold
such disputed Charges or amounts from payments on subsequent
invoices. The withholding of disputed Charges and other invoiced
amounts in accordance with this Section 4.7 will not be
considered a basis for monetary or other default or grounds for
termination under this Agreement.
(b) Except as set forth in subsection (a) above regarding the time
for notification of a Dispute, all Disputes concerning the
accuracy or applicability of any Charge or other invoiced amount
shall be resolved as set forth in Section 13.2. Equant will use
diligent efforts to provide any supporting documentation required
by Customer to resolve any such Disputes.
4.8 RELOCATION OF A SERVICE CENTER.
If Equant, for business purposes, closes or relocates a Service
Center, Equant shall provide sixty (60) days advance written notice in
connection with any relocation or closure. Equant will use
commercially reasonable efforts to reduce any disruptions to Customer
and shall, at no additional cost to Customer, retain the contracted
Response Times. Failure by Equant to provide such information shall
not be deemed a material breach of this Agreement.
4.9 DISCONTINUANCE OF MAINTENANCE INVOICING.
Invoicing for Maintenance Charges will cease as of the expiration date
stated on the Service Request, unless otherwise terminated in
accordance with Section 12.
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Article 5 - CONFIDENTIAL INFORMATION; PROPRIETARY RIGHTS
5.1 CONFIDENTIAL INFORMATION.
"Confidential Information" of a Party means: (a) the terms of this
Agreement and (b) all confidential or proprietary information or
materials (in any medium) of either Party (including information
entrusted to it by a third Party) or any Affiliate thereof.. Any
information or material shall be considered confidential or
proprietary if it relates to either party's business records or plans,
and in general each party shall treat as confidential or proprietary
any data or information obtained from the other if such party would
treat its own corresponding material as such.
(a) During the term of this Agreement and following for a period of
five (5) years after its expiration or termination, the Party
receiving any Confidential Information of the other Party shall
affirmatively agree not to disclose any Confidential Information,
not to use any Confidential Information for purposes other than
the provision of Equipment and Services under this Agreement, and
to take reasonable steps to maintain the security and
confidentiality of such Confidential Information. Each Party,
when receiving Confidential Information from the other Party,
further agrees as follows:
(i) to take reasonable steps, no less rigorous than those
taken to protect its own Confidential Information of a
similar nature, to prevent any disclosure of the
disclosing Party's Confidential Information; and
(ii) to use and reproduce the disclosing Party's Confidential
Information only to the extent necessary to permit the
receiving Party to meet its obligations or exercise its
rights under this Agreement; and
(iii) to use reasonable effort to limit disclosure of the
disclosing Party's Confidential Information to those of
the receiving Party's Affiliates, directors, officers,
employees, third Party service providers, consultants,
subcontractors and contractors who have a "need to know"
such information in connection with the receiving Party's
performance of its obligations or exercise of its rights
under this; provided, however, that any such person or
entity who is not one of the receiving Party's Affiliates,
directors, officers, or employees shall have first
executed a nondisclosure agreement which contains terms
which mirror the nondisclosure requirements set forth in
this Article.
(b) Information of a Party will not be considered Confidential
Information under this Agreement if such information:
(i) was already rightfully known by the receiving Party at the
time it was obtained thereby, free from any obligation to
keep such information confidential;
(ii) is or falls into the public domain through no wrongful
act, fault or omission by the receiving Party;
(iii) is rightfully received by the receiving Party from a third
Party without restriction and without breach of this
Agreement; or
(iv) is developed by the receiving Party independently of and
without access to or use or benefit of any Confidential
Information of the disclosing Party.
5.2 CONFIDENTIALITY OF AGREEMENT.
Without limiting the generality of Section 5.1, and subject to Section
5.1, neither Party shall publicly disclose the terms of this Agreement
without the prior written consent of the other. Neither Party will
disclose or discuss the terms of this Agreement with any third
Parties, except to the extent necessary for that Party to meet its
obligations or exercise its rights under this Agreement.
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5.3 THIRD PARTY INFORMATION.
Each Party will use and treat any information belonging or relating to
any third-Party subcontractors, vendors or suppliers of the other
Party, as well as End Users in accordance with the requirements of
this Article 5.
5.4 RETURN OR DESTRUCTION OF CONFIDENTIAL INFORMATION.
Upon the expiration or termination of this Agreement, or upon the
request of the disclosing Party requesting return of any tangible
embodiments of all or any portion of its Confidential Information
(which the receiving Party does not then require to perform its
obligations hereunder), the receiving Party shall promptly return such
Confidential Information (whether in hard copy, diskette, or any other
electronic form, and including any copies, extracts, descriptions, and
summaries thereof) or, with the disclosing Party's written consent,
will promptly use all reasonable efforts to destroy it (any copies,
extracts, descriptions, and summaries thereof) and will further
provide the disclosing Party with written certification of
destruction.
5.5 WAIVERS.
Either Party may request in writing that the other Party waive all, or
any portion, of the requesting Party's responsibilities relative to
the other Party's Confidential Information. Such waiver request shall
identify the affected information and the nature of the proposed
waiver. The recipient of the request shall respond within a
reasonable time, and if, in its sole discretion, it determines to
grant the requested waiver, it shall do so in writing over the
signature of an employee authorized to grant such request. Any waiver
granted pursuant to this Section shall not be deemed a waiver to
disclose any other Confidential Information, and shall apply only to
the disclosure of the Confidential Information specified in the
request for a waiver.
5.6 REQUIRED DISCLOSURE.
Notwithstanding anything to the contrary in this Article 5, if the
receiving Party of any Confidential Information learns that it is or
may be required by applicable court order, law or regulation to
disclose any Confidential Information, then such receiving Party
shall: (i) as promptly as possible after learning of a possible
disclosure requirement, and in any case prior to making disclosure,
notify the disclosing Party of the disclosure requirement so that the
disclosing Party may seek a protective order or other appropriate
relief; (ii) provide such cooperation and assistance as the disclosing
Party may reasonably request in any effort by the disclosing Party to
obtain such relief; and (iii) take reasonable steps to limit the
amount of Confidential Information so disclosed and to protect its
confidentiality.
5.7 EQUITABLE RELIEF.
The Parties acknowledge that any disclosure or misappropriation of
Confidential Information in violation of this Agreement may cause
irreparable harm, the amount of which may be extremely difficult to
determine, thus potentially making any remedy at law or for damages
inadequate. Each Party therefore agrees that the other Party shall
have the right to apply to any court of competent jurisdiction for an
order restraining any breach or threatened breach of this Article 5
and for any other equitable relief as such other Party deems
appropriate. As set forth in Section 13.2, this right shall be in
addition to any other remedy available in law or at equity.
5.8 INFRINGEMENT.
In the event that the Services, any other materials or services
provided under this Agreement by Equant are alleged or determined to
infringe upon the proprietary rights of a third Party, Equant will, in
addition to its obligations, if any, under Section 9.1(c) at its own
expense: (a) obtain the right for Customer and its End User to use the
infringing Services, materials or services as contemplated by this
Agreement; (b) modify the Services, materials or services so that they
are no longer infringing but still satisfy the requirements contained
in this Agreement; or (c) obtain and substitute functionally similar
Services, materials or services that are not infringing.
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5.9 UNAUTHORIZED USE.
Each Party will notify the other Party promptly of any actual or
attempted use or possession of any Confidential Information by any
unauthorized person or entity which may become known to it and will
cooperate with the other Party in any investigation or action against
any such persons or entities.
Article 6 - REPRESENTATIONS AND WARRANTIES
6.1 GENERAL.
(a) BY EQUANT. Equant represents and warrants that, as of the
Effective Date:
(i) EQUANT INTEGRATION SERVICES, Inc. is a corporation validly
existing and in good standing under the laws of the State
of New York;
(ii) Equant has all requisite corporate power and authority to
execute, deliver and perform its obligations under this
Agreement;
(iii) the execution, delivery and performance of this Agreement
has been duly authorized by Equant, and no additional
corporate authorization or action on its part is required
in connection with the execution, delivery or performance
by Equant of this Agreement or the consummation by Equant
of the transactions contemplated hereby;
(iv) this Agreement has been duly and validly executed and
delivered by Equant and constitutes a legal, valid and
binding obligation of Equant enforceable against Equant in
accordance with its terms;
(v) no approval, authorization or consent of any governmental
or regulatory authority is required to be obtained or made
by it in order for it to enter into and perform its
obligations under this Agreement (or any such approval,
authorization or consent will be promptly obtained after
the Effective Date);
(vi) in connection with providing the Equipment and Services, it
will comply with all applicable Federal, state and local
laws and regulations and has obtained all applicable
permits, rights and licenses;
(vii) except as permitted under this Agreement, it has not
disclosed any Confidential Information of Customer; and
(b) BY CUSTOMER. Customer represents and warrants that, as of the
Effective Date:
(i) it is a corporation validly existing and in good standing
under the laws of the state of California;
(ii) it has all requisite corporate power and authority to
execute, deliver and perform its obligations under this
Agreement;
(iii) the execution, delivery and performance of this Agreement
has been duly authorized by Customer, and no additional
corporate authorization or action on its part is required
in connection with the execution, delivery or performance
by Customer of this Agreement or the consummation by
Customer of the transactions contemplated hereby;
(iv) this Agreement has been duly and validly executed and
delivered by Customer and constitutes a legal, valid and
binding obligation of Customer enforceable against Customer
in accordance with its terms;
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(v) no approval, authorization or consent of any governmental
or regulatory authority is required to be obtained or made
by it in order for it to enter into and perform its
obligations under this Agreement (or any such approval,
authorization or consent will be promptly obtained after
the Effective Date);
(vi) it will comply with all applicable Federal, state and local
laws and regulations and has obtained all applicable
permits, rights and licenses; and
(vii) except as permitted under this Agreement, it has not
disclosed any Confidential Information of Equant.
6.2 SERVICE WARRANTIES.
Equant shall use good quality materials, techniques and standards to
provide the Services with the care, skill and diligence as required in
each Service Request. Equant shall ensure that technicians responding
to a Customer Fault Call are qualified, trained, and conversant with
the Equipment. All service will be performed in a workmanlike manner
and timely in accordance with each Service Request.
6.3 LIMITATION OF WARRANTIES.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, EQUANT, NOT BEING THE
MANUFACTURER AND/OR SUPPLIER OF THE EQUIPMENT, NOR THE MANUFACTURER'S
AND/OR SUPPLIER'S AGENT, MAKES NO WARRANTY OR REPRESENTATION, EITHER
EXPRESS OR IMPLIED, AS TO THE QUALITY, DESIGN, CONDITION, CAPACITY,
suitability, MERCHANTABILITY OR PERFORMANCE OF THE EQUIPMENT, OR
FITNESS FOR A PARTICULAR PURPOSE, OR OF THE MATERIAL OR WORKMANSHIP OF
THE EQUIPMENT, OR THE EXISTENCE OF ANY LATENT OR PATENT DEFECTS, AND
EQUANT HEREBY DISCLAIMS ALL SUCH WARRANTIES, IT BEING AGREED THAT, AS
BETWEEN EQUANT AND CUSTOMER, THE EQUIPMENT IS SUPPLIED "AS-IS" AND
THAT CUSTOMER SHALL HAVE ONLY SUCH WARRANTIES, EXPRESS OR IMPLIED, IF
ANY, AS PROVIDED BY THE MANUFACTURER AND/OR EQUANT, OR THIRD PARTY
LICENSOR OF SUCH EQUIPMENT. EQUANT SHALL NOT HAVE ANY RESPONSIBILITY
OR LIABILITY IN CONNECTION WITH THE ENTRY OR USE, INCLUDING OUTPUT, OF
CUSTOMER'S DATA. EQUANT DOES NOT WARRANT, GUARANTEE OR MAKE ANY
REPRESENTATIONS CONCERNING THE USE, THE RESULTS OF USE OF THE
EQUIPMENT, OR THE CORRECTNESS, ACCURACY, RELIABILITY, CAPACITY OR
LIMITATIONS RELATED TO THE EQUIPMENT. EQUANT DOES NOT WARRANT THAT
THE FUNCTIONS CONTAINED IN THE EQUIPMENT WILL MEET CUSTOMER'S
REQUIREMENTS OR EXPECTATION OR THAT THE OPERATION OF THE EQUIPMENT
WILL BE UNINTERRUPTED OR ERROR FREE. CUSTOMER UNDERSTANDS THAT SUCH
LIMITATIONS MAY RESTRICT OR LIMIT THE CAPABILITIES OR PERFORMANCE
CHARACTERISTICS OF THE EQUIPMENT. CUSTOMER ACKNOWLEDGES THAT IT HAS
SELECTED THE PRODUCTS ON THE BASIS OF ITS OWN JUDGMENT AND EXPRESSLY
DISCLAIMS ANY RELIANCE UPON ANY STATEMENTS MADE BY EQUANT.
The Parties acknowledge that Equant is not a Hardware or Software
manufacturer. Therefore, the Parties expressly stipulate and agree
that Equant shall have no responsibility for either the date
calculations and other processing for the years 2000 and beyond or for
any problems relating to date changes. Equant shall have no
obligation under this Agreement to correct any date change problems or
Year 2000 problems. The Parties may conclude a separate arrangement
to correct such problems on such terms and conditions as the Parties
may mutually agree.
Article 7 - OBLIGATIONS AND COVENANTS OF THE PARTIES
7.1 PROGRAM MANAGERS.
The Parties will use all reasonable efforts to focus communications
with each other through their respective Program Managers. Each Party
may change its Program Manager upon notice to the other. Each Party's
Program Manager may delegate his or her authority wholly or in part to
other employees of that Party, but must give the other Party
reasonable description of the delegation, the goal being to facilitate
efficient and authorized communication.
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7.2 FOREIGN CORRUPT PRACTICES ACT.
Each Party will fully comply with all applicable statutes and
regulations under the Foreign Corrupt Practices Act, as it may be
amended from time to time, in connection with all matters relating to
this Agreement.
7.3 ACCESS.
Subject to Section 7.5, Customer will provide or cause Equant to be
provided with access to Sites at all times during which it may be
required to perform Services as well as use of customary utilities and
building services (including heat, light, ventilation, electric
current and outlets, and use of a telephone and facsimile machine) at
such Sites reasonably sufficient and necessary for Equant to perform
the Services. Customer acknowledges and agrees that access to the
Sites is critical to Equant's ability to provide the Services
described in any Statement of Work and as requested in a duly accepted
Service Request. Customer will provide or cause Equant to be provided
with such access to employees of Customer or the End User, including a
contact (by name and telephone number) at each Site at which Services
are to be performed, as is necessary and reasonable in connection with
performance of the Services. To the extent Equant is denied access
to, or unsafe or hazardous conditions exist at, any Sites at which it
is to perform Services under this Agreement, Equant shall be relieved
of its obligation hereunder to provide such Services; provided, that
Equant observes any procedures applicable to such situations specified
in this Agreement and promptly notifies Customer of same.
7.4 RIGHT OF ENTRY.
Customer shall have the right upon ten (10) days prior written request
to the Equant Program Manager, which request shall not be unreasonably
withheld, to enter Equant's premises where Customer-owned Equipment or
Spares are located, for the purpose of inspecting such inventory and
the security measures taken with respect thereto. Notwithstanding the
foregoing, no request for inspection shall be made for the first and
last calendar week of any calendar quarter. Such inspections shall be
limited to two (2) per year, per Equant premise.
7.5 CONDUCT OF EQUANT PERSONNEL.
(a) While at any Site, Equant agrees to comply (and to cause its
personnel and the personnel of its Affiliates and subcontractors
to comply) with all reasonable safety and security procedures and
rules and regulations regarding personal and professional
conduct, as such are readily available and/or obtainable from the
Site in writing prior to the commencement of Services (including,
without limitation, the wearing of identification badges and
observance of dress codes and smoking policies) which are in
effect at such Site, and otherwise to conduct itself and
themselves in a businesslike manner.
(b) Equant will direct its employees to cooperate and comply with all
reasonable background checks and drug testing requirements,
provided that such background checks and drug testing
requirements are consistent with local law.
7.6 COOPERATION WITH OTHER VENDORS.
Customer will or will cause its End User to inform Equant of any
activities of its other subcontractors or vendors at any Sites which
are reasonably likely to affect Equant's performance of Services
hereunder. Equant will cooperate with Customer, the End User and such
other subcontractors and vendors to coordinate their activities.
7.7 MANNER OF PROVISION OF SERVICES.
(a) Equant will provide (and cause its subcontractors to provide) all
Services at each Site in a manner designed not to: (i) create any
unsafe or hazardous condition at the Site; (ii) materially
interfere with or impair the operation of the heating,
ventilation, air conditioning, plumbing, electrical, fire
protection, safety, security, public utilities or other systems
or facilities at the Site;
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(iii) materially interfere with the use, occupancy or operation
of the Site; or (iv) impose any expense upon Customer, in
connection with its use, occupancy or operation of, such Site.
Notwithstanding the foregoing, Equant will take all necessary
steps to protect the safety of its employees.
(b) To the extent that Equant has been made aware of any of the
following situations, Equant will immediately notify Customer of
any: (i) destruction or damage to any real or personal property
or destruction, compromise or disclosure of software, data or
other intangible or intellectual property of Customer, as well as
(ii) any injury to any person, resulting from or arising in
connection with the performance of Services by Equant, or its
subcontractors, or their respective personnel.
7.8 UNAUTHORIZED ACCESS.
In the event Equant discovers or is notified of: (i) a material breach
or potential material breach of security involving the Equipment,
Services or any system or network which does or may contain, process
or transmit Confidential Information of Customer or an End User or
(ii) actual or potential unauthorized or illegal activities by
personnel of Equant or its subcontractors to obtain money or
information from or through Customer or any customer or supplier
thereof, or in any way damage (or expose to damage) Customer, or any
customer or supplier thereof, Equant will immediately notify Customer
and will cooperate fully with Customer and its designees in any
investigation or action relating to such breach or potential breach.
The requirements of subsection (i) of this Section 7.8 shall not be
construed to create an affirmative duty on behalf of Equant to seek
out any such breaches of security, nor shall Equant be held liable for
any damages to Customer or End User caused by Equant's failure to
discover a breach of security.
7.9 PROTECTION OF DATA BY CUSTOMER.
Throughout the Term of this Agreement, and any Service Request,
Customer agrees or shall advise the End User to maintain a procedure
external to the Equipment for the reconstruction of lost or altered
files, data or programs (hereinafter, "Data"). Notwithstanding the
foregoing, Equant shall assist Customer in the reconstruction of any
lost Data at no charge, to the extent such losses are attributable to
Equant's negligent performance of the Services.
Article 8 - IMPORT AND EXPORT OF EQUIPMENT
8.1 IMPORT/EXPORT OF EQUIPMENT AND PERMITS.
(a) Where requested by Customer, and where permitted by the local
laws of the country of destination, Equant will serve as importer
of record for, and will pay all applicable duties on, Equipment
shipped into countries outside the United States. Equant shall
be responsible for performing all services in connection with the
shipping, export and import of Equipment under the Agreement to
the Sites. All applicable duties paid by Equant for the
importation of any Equipment, except as stated in the Statement
of Work, sub-section 7.3(2) shall re-invoiced by Equant to
Customer on a current basis, plus a five (5%) percent handling
charge.
(b) Where permitted by law, Equant will be responsible, as part of
the Services described in a Service Request, for securing all
permits, licenses, regulatory approvals and authorizations,
whether domestic or international, and including all U.S. export
control licenses (collectively "Permits") required for Equant to
provide the Services to Customer and will take all lawful steps
necessary to maintain such Permits during the term of this
Agreement. Equant will have financial responsibility for, and
will pay, all fees and taxes associated with obtaining such
Permits. Customer will cooperate with Equant in securing such
Permits. If Equant is not able to secure the Permits in its own
name, Customer will undertake to secure such Permits at the
reasonable direction of Equant and at Equant's expense.
(c) Customer will be responsible for securing, at Customer' expense,
all permits other than Permits Equant is required to secure under
subsection (b) above. Customer will take all lawful steps to
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maintain such other Permits during the term of this Agreement.
Equant will cooperate with Customer in securing such other
Permits as may be necessary.
8.2 RISK OF LOSS.
Unless otherwise agreed to in writing between the Parties, as between
Equant and Customer, (1) Customer will bear the risk of loss for the
Equipment until it shifts to Equant upon delivery of the Equipment to
a Service Center; thereafter (2) Equant will bear all risk of loss
while such Equipment remain at a Service Center; and (3) Equant shall
continue to bear the risk of loss, until (4) the risk of loss shifts
from Equant to Customer upon delivery at the applicable Site and
control of such Equipment is transferred to Customer or the End User.
8.3 COMPLIANCE WITH LAWS.
Each of the Parties will comply in all material respects with all
laws, rules and regulations, now in effect or hereinafter enacted or
adopted, of any jurisdiction, related to all matters of this Agreement
and any executed Statement of Work, including the U.S. export
regulations referred to in Section 8.4, (collectively, "APPLICABLE
LAW").
8.4 EXPORT CONTROL REGULATIONS.
The Parties acknowledge that any products, software and technical
information (including, but not limited to, services and training)
provided under the Agreement may be subject to applicable U.S. export
laws and regulations and that any use or transfer of such products,
software and technical information must be authorized under those laws
and regulations. Equant shall be responsible for notifying Customer
in the event any of the products, software and technical information
are subject to any U.S. export laws and regulations. Customer will
not (and will cause all Customer's End Users not to) use, distribute,
transfer, or transmit any such products, software or technical
information (even if incorporated into other products or services)
except in compliance with such laws and regulations. Equant shall be
responsible at its own expense for filing the appropriate export-
related documents as may be required for Equant to comply with U.S.
export laws and regulations for any products, software and technical
information provided hereunder and, if requested by Equant, Each Party
will sign (and will cause their respective Affiliates, subcontractors
and End Users to sign) such written assurances and other export-
related documents as may be requested by the other Party.
8.5 IMPORT AND EXPORT LIMITATIONS.
(a) Equant may not export Products to a destination which is
prohibited under local or U.S. Law;
(b) Equant may not act as the importer of record in countries where
Equant or its subcontractor does not have a legal presence;
(c) Equant may not act as the importer of record in countries where
Equant's charter or Equant's subcontractor's charter prohibits
the provision of such Services;
(d) Equant may decline to act as importer of record in such cases as
it reasonably determines that such Services would create an
unreasonable fiscal burden upon Equant, however, in such cases,
Equant will provide reasonable assistance to Customer in the
importation process.
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Article 9 - INDEMNIFICATION AND LIMITATIONS OF LIABILITY AND REMEDIES
9.1 INDEMNIFICATION.
(a) LOSSES DEFINED.
For purposes of this Agreement, "LOSSES" means all losses,
liabilities, damages and costs (including Taxes) and all related
costs and expenses (including reasonable attorney's fees and
disbursements and reasonable costs of investigation, litigation
and settlement).
(b) BY CUSTOMER.
Customer will indemnify, defend and hold Equant and its officers,
directors, employees, agents, successors and permitted assigns
(each, a 'EQUANT INDEMNITEE") harmless from and against any and
all Losses arising out of or relating to:
(i) any claim by a third party (other than an Equant
Indemnitee) that any equipment, software, materials or
services provided to Equant by Customer in connection with
Equant's performance of the Services infringe upon the
proprietary rights of such third Party; or
(ii) any claim by a third party (other than an Equant
Indemnitee) relating to the failure by Customer to comply
in any material respect with any Applicable Law.
(iii) any violation of Federal, State, local or other laws or
regulations or a failure by Customer to obtain any required
permits, rights or licenses required in its performance of
services under this Agreement;
(iv) any claim alleging the inaccuracy or untruthfulness of any
representation or warranty made by Customer pursuant to the
Services provided by Equant under this Agreement;
(v) any violation or failure to comply with any copyright,
license or other third party proprietary right concerning
the use, distribution, duplication or transfer of any
software.
(c) BY EQUANT.
Equant will indemnify, defend and hold Customer, its affiliates
and their respective officers, directors, employees, agents,
successors and assigns (each, an "CUSTOMER INDEMNITEE") harmless
from and against any and all Losses arising out of or relating to
any claim by a third Party (other than an Customer Indemnitee):
(i) that the Equipment, materials or other services provided to
Customer by Equant or its Affiliates or subcontractors
infringe upon the proprietary rights of such third Party;
(ii) alleging a violation of Federal, state, local or other laws
or regulations or a failure by Equant to obtain required
permits, rights or licenses required in its performance of
services under this Agreement;
(iii) the inaccuracy or untruthfulness of any representation or
warranty made by Equant in this Agreement;
(iv) a breach by Equant or its Affiliates of any subcontracting
arrangements; or
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(v) a breach by Equant or its employees, Affiliates or
subcontractors of the safety or security procedures in
effect at any Site, for which Equant has received written
notification of such safety or security procedures.
(d) CROSS INDEMNITY.
Each Party agrees to indemnify, defend and hold harmless the
other Party and its Affiliates, officers, directors, employees,
agents, successors and permitted assigns from and against any and
all Losses arising out of or in connection with the injury of or
damage to any person or real or tangible personal property to the
extent such injury or damage: (i) is proximately caused by the
negligence or willful misconduct of any person (other than an
indemnitee) for whose conduct the indemnitor is liable and (ii)
arises or occurs in connection with this Agreement or the
provision or receipt of the Equipment or Services.
(e) INDEMNIFICATION PROCEDURES.
(i) If any claim in respect of a Loss (including personal
injury or property damages) is asserted or any civil,
criminal, administrative or investigative action or
proceeding (any such claim, action or proceeding, a
"Claim") is threatened or commenced, in each case against
any person seeking indemnification hereunder (an
"INDEMNIFIED Party"), the Party which is (or whose
Affiliate, officer, director, employee, agent, successor or
assign is) the indemnified Party will promptly notify the
other Party (the "INDEMNIFYING PARTY") in writing thereof.
Any failure or delay by the Indemnified Party in giving
such written notice shall not constitute a breach of this
Agreement and shall not excuse the Indemnifying Party's
obligation under this Section 9.1, except to the extent (if
any) that the Indemnifying Party is prejudiced by such
failure or delay. If the Indemnifying Party acknowledges in
writing an indemnification obligation under this Section
9.1, it will be entitled to elect, within fifteen (1 5)
calendar days after its receipt of such notice, to assume
sole control over the investigation, defense and settlement
of such Claim at its own cost, risk and expense. However,
the indemnified Party shall be entitled to participate in ,
but not control, the investigation, defense and settlement
of such Claim at its own cost and expense The Indemnifying
Party shall enter into no settlement of a Claim without the
prior written consent of the indemnified Party, which
consent shall not be unreasonably withheld. The indemnified
Party shall enter into no settlement of a Claim without the
prior written consent of the indemnifying Party.
(ii) After notice of a Claim by the indemnified Party, if the
Indemnifying Party does not elect to assume sole control of
the defense of such Claim, the indemnified Party will have
the right to defend such Claim in such reasonable manner as
it may deem appropriate, at the cost, risk and expense of
the Indemnifying Party. The Indemnifying Party will have
the right to participate in such defense at its own cost
and expense.
(iii) Each Party, at its own cost and expense, agrees to provide
reasonable cooperation and assistance to the other Party in
the investigation, defense and settlement of any Claim,
including but not limited to providing access to relevant
information and employees.
(f) SUBROGATION.
The Indemnifying Party will, upon payment of an indemnity in full
under this Agreement, be subrogated to all rights of the
Indemnified Party with respect to the claims and defenses to
which such indemnification relates.
9.2 CONSEQUENTIAL DAMAGES.
(a) In no event will either Party have any liability for any loss of
income, profit, interest or savings by the other Party or for any
indirect, incidental, consequential, punitive or special damages
suffered by the other Party, arising from or related to this
Agreement, regardless of the form of
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action, and whether in contract, indemnity, warranty, strict
liability or tort (including, without limitation, negligence), or
any other legal or equitable grounds, even if such Party has been
advised of the possibility of such losses or damages. This
limitation will not apply to: (a) losses by either Party for
bodily injury or damage to real property or tangible personal
property; (b) indemnification obligations pursuant to Section
9.1; (c) liability resulting from the gross negligence or willful
misconduct of a Party; or (d) any breach of confidentiality
obligations contained in this Agreement.
(b) Except as expressly stated in this Agreement, neither Party will
be responsible or liable for any delay, loss or damage
attributable to the action or non-action of any person other than
that Party, its Affiliates, directors, officers, employees,
subcontractors and agents.
9.3 LIMITATIONS OF LIABILITY.
(a) The liability of either Party for actual, direct damages
resulting from performance or nonperformance under this
Agreement, regardless of the form of action, and whether in
contract, tort (including, without limitation, negligence),
warranty or other legal or equitable grounds, will be limited in
the aggregate to the Net Limitation Amount. The "Net Limitation
Amount" at any date of determination will be equal to the lesser
of:
(i) the amounts paid under this Agreement; or
(ii) One Million ($1,000,000) Dollars for the first twelve (12)
months of this Agreement. At such time as the total amount
paid under this Agreement exceeds Three Million ($3,000,000)
Dollars, the aforementioned amount shall be increased to an
amount mutually acceptable to the Parties, and thereafter
shall be periodically increased at such time as the total
amount paid under this Agreement increases by an additional
two ($2,000,000) Million Dollars,
(b) minus, in each case under (i) or (ii) above, the aggregate amount
paid by the liable Party to the other Party in respect of events
giving rise to liability arising from or in connection with this
Agreement from the Effective Date through such date of
determination. This limitation will not apply to: (i) losses by
either Party for bodily injury or damage; (ii) liability
resulting from the gross negligence or willful misconduct of a
Party; or (iii) any breach of confidentiality obligations
contained in this Agreement.
9.4 EXCLUSIVE REMEDIES.
The obligation of Equant and the rights and remedies of Customer set
forth in this Agreement are exclusive and in substitution for all
other remedies, obligations and liabilities of Equant, and all rights,
claims and remedies ("Claims") of Customer against Equant, express or
implied, arising by law or otherwise, including, but not limited to,
any implied warranty of merchantability or fitness for a particular
purpose, any implied warranty arising from course of performance,
course of dealing or usage of trade, and any obligation, liability,
right, claim, or remedy for any tort, or breach of contract. The
remedies of the Parties with respect to any matter under this
Agreement shall be limited to the remedies set forth herein; provided,
that neither Party shall receive duplicative recoveries.
Article 10 - INSURANCE
10.1 INSURANCE PROVIDED BY EQUANT.
(a) Without limitation of any of Customer' other rights or remedies
set forth in this Agreement, during the Term and any extension
thereof, Equant will maintain at Equant's own expense, insurance
of the type and in the amounts specified below:
(i) statutory workers compensation (or local equivalent) in
accordance with all applicable laws;
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(ii) employers' liability insurance (or the local equivalent)
(which may include coverage under an umbrella liability
policy) in an amount not less than the amount required by
the applicable local law;
(iii) commercial general liability insurance (which may include
coverage under an umbrella liability policy) in an amount
not less than three million ($3,000,000.00) dollars per
occurrence;
(iv) comprehensive automobile liability covering all vehicles
that Equant owns, hires or leases in an amount not less
than one million ($1,000,000.00) dollars per occurrence
(combined single limit for bodily injury and property
damages); and
(v) all risk property insurance for the replacement cost of
Equant's equipment and other property on Customer Sites,
and containing a waiver of subrogation in favor of
Customer.
10.2 CERTIFICATES OF INSURANCE.
Equant will furnish to Customer certificates of insurance (including
evidence of renewal of insurance) evidencing coverage in accordance
with this Article 10. Such certificates will include a provision
whereby fifteen (15) Business Days notice must be received by Customer
prior to coverage cancellation or material alteration of the coverage
by either Equant or the insurer; provided, however, that such
cancellation or alteration will not relieve Equant of its continuing
obligation to maintain insurance coverage in accordance with this
Article 10. In the event that Equant is required to pay any excess
costs for adding Customer as an additional insured, Customer will
reimburse Equant for all such excess costs.
Article 11 - FORCE MAJEURE; OTHER EXCUSES
Neither party shall be held responsible for any delay or failure in
performance of any part of this Agreement to the extent such delay or
failure is caused by fire, flood, strike, civil, governmental or military
authority, act of God, or other similar causes beyond its control and
without the fault or negligence of the delayed or non-performing party or
its subcontractors. Equant's liability for loss or damage to Customer's
material in Equant's possession or control shall not be modified by this
clause. When a party's delay or nonperformance continues for a period of
at least fifteen (15) days, the other party may terminate, at no charge,
Service for the Site affected by the Force Majeure event.
Article 12 - TERMINATION
12.1 GROUNDS FOR TERMINATION AND REMEDIES.
(a) PAYMENT DEFAULT.
Upon exhaustion of the notice periods set forth in Section
4.3(c), Equant may terminate, upon ten (10) days advance written
notice, all Services under any Service Request in the event that
Customer fails to remit payment for any undisputed invoice eighty
(80) days after such invoice is issued, unless Customer cures
such payment default by paying in full, prior to the expiration
of such ten-day notice period, all outstanding amounts listed on
such written notice as due and payable to Equant; provided,
however, that if Customer fails to pay any amount that is the
subject of a good faith Dispute as described in Sections 4.7 or
13.2, no default shall be deemed to have occurred pursuant to
this Section 12.1(a) until the dispute resolution processes
described in Sections 4.7 and 13.2 have been exhausted.
(b) BREACH OF CONTRACT.
Other than any failure by Customer to make any payment to which
subsection (a) above applies, either Party may terminate this
Agreement as to such Sites or Services (or portions thereof) upon
ninety (90) calendar days' written notice for any material breach
or default (or any series of breaches or defaults which in the
aggregate constitute a material breach or default) of
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any terms and conditions of this Agreement relating to such Sites
or Services by the other Party (the "BREACHING PARTY"), unless
within such ninety (90) day notice period, the Breaching Party:
(i) has cured such breach or default or (ii) if such breach or
default by its nature cannot be cured within ninety (90) days,
has commenced to cure such default or breach and diligently
pursues such cure until accomplished and such cure is
accomplished within one hundred twenty (120) calendar days of
such notice of termination. No notice of termination pursuant to
this Section 12.1(b) may be given prior to the completion of the
internal dispute resolution process described in Section 13.2.
(c) VIOLATION OF APPLICABLE LAW.
Either Party may, upon reasonable notice to the other Party,
suspend or terminate the provision of Services (or portion
thereof) if and to the extent that such Party determines in good
faith that its provision of such Services (or portion thereof)
constitutes or causes a violation of any Applicable Law.
Customer will pay for any portion of any such suspended or
terminated Services provided prior to such notice. Equant will
use its reasonable efforts to offer functionally equivalent
substitute products or services that do not violate any
Applicable Law on terms and pricing comparable to the suspended
or terminated Services, which Equant will provide if Customer and
Equant are able to agree, through good faith negotiation, on
terms for such Services.
(d) INSOLVENCY EVENT.
This Agreement will terminate automatically and immediately
without requirement of notice upon the occurrence of an
Insolvency Event. An "INSOLVENCY EVENT" has occurred with
respect to a Party if:
(i) a receiver, liquidator or trustee of such Party is
appointed by court order and such order remains in effect
for more than ninety (90) calendar days, or a receivership,
insolvency or bankruptcy proceeding is commenced or a
petition is filed against such Party under any applicable
liquidation, conservatorship, bankruptcy, moratorium,
insolvency, reorganization or similar law for the relief of
debtors (collectively, "BANKRUPTCY LAWS") from time to time
in effect and generally affecting the rights of creditors,
and such proceeding or such petition has not been dismissed
or stayed within ninety (90) calendar days of the
commencement or filing thereof;
(ii) such Party commences a voluntary case under any Bankruptcy
Law or voluntarily seeks, consents to or acquiesces in the
benefit or benefits of any provision of any Bankruptcy Law,
consents to the filing of any petition against it under any
Bankruptcy Law, makes an assignment for the benefit of its
creditors, admits in writing its inability to pay its debts
generally as they become due or consents to the appointment
of a receiver, trustee, liquidator or conservator for it or
any part of its property; or
(iii) Notwithstanding anything to the contrary in this Section
12(d) which would automatically terminate this Agreement,
this Agreement shall not so terminate if, and for so long
as: (i) neither Customer or Equant is in material breach of
its obligations (including payment obligations) under this
Agreement and (ii) if Customer is the bankrupt, Customer
prepays in full, on a monthly basis, for any Equipment and
Services hereunder.
(e) CORPORATE DISSOLUTION OR LIQUIDATION.
This Agreement will terminate automatically and immediately
without any requirement of notice if proceedings are commenced
for the dissolution, winding-up or liquidation of either Party.
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(f) TERMINATION UPON CHANGE OF CONTROL.
In the event all or a substantial portion of the assets of Equant
relating to the Services, or stock or assets of Equant or any
entity which owns more than fifty percent (50%) of the stock of
Equant (a "parent entity"), are acquired by an unaffiliated third
party, in a single transaction or a series of transactions, such
that such third party thereby owns more than fifty percent (50%)
of stock or assets of Equant or such parent entity, whether by
merger, reorganization, sale, transfer or other similar
transaction (a "Change in Control"), then at any time within six
(6) months after the last to occur of such events, upon a
reasonable determination by Customer that such entity poses a
competitive threat to or creates an undesirable business
environment for Customer, Customer may then decide in its sole
discretion to terminate this Agreement by giving Equant at least
sixty (60) days prior written notice and designating a date upon
which such termination shall be effective.
12.2 RIGHTS UPON TERMINATION.
(a) In case of termination for default by Customer, Equant may
accelerate and declare all obligations of Customer created under
this Agreement to be immediately due and payable by Customer as a
liquidated sum and not as a penalty and proceed against Customer
in any lawful way for satisfaction of such sum and/or
repossession of any of Spares or other Equant property in
Customer's possession.
(b) Unless specifically terminated as set forth above, any Service
Request which requires performance or extent beyond the term of
this Agreement, shall, at Customer's option be so performed and
extended and shall continue to be subject to this Agreement.
12.3 COSTS OF TERMINATION.
On termination for default, howsoever or whenever occurring, the
defaulting Party shall pay to the other Party all costs and expenses
including legal and other fees incurred, interest and all arrears of
charges or other payments arising in respect of the Equipment or
otherwise in addition to any other rights and remedies either Party
may have under this Agreement, in Law or in Equity. The terms of this
Section shall not apply to termination for convenience, as set forth
in Section 12.4.
12.4 TERMINATION FOR CONVENIENCE.
(a) TERMINATION BY UNIT OF EQUIPMENT.
Customer may elect to delete a unit of Equipment covered under
this Agreement by providing at least six (6) months prior written
notice of such deletion (hereinafter, the "Termination Notice
Period"). During any Termination Notice Period, Equant shall
continue to provide Services and Customer shall continue to pay
for such Services at the agreed upon rates.
(i) In the event that Customer elects to delete a unit of
Equipment during the term of any Service Request for
Maintenance Services, the Parties recognize that upon such
deletion, Equant shall be damaged in an amount which can not
be readily determined. Accordingly, simultaneously with any
such notice, Customer shall pay to Equant, as liquidated
damages and not as a penalty, the appropriate amounts as
indicated below:
. For early termination of Maintenance Services for any or
all Equipment under a one (1) year Service Request,
Customer shall remit seventy-five (75%) percent of the
Charges remaining under that Service Request with respect
to the terminated Maintenance Services after the end of
the Termination Notice Period;
. For early termination of Maintenance Services for any or
all Equipment under a two (2) year Service Request,
Customer shall remit with respect to the terminated
Maintenance Services fifty (50%) percent of the Charges
remaining in the first
20
<PAGE>
twelve (12) month period and thirty-five (35%) of the
Charges remaining in the second twelve (12) month period
after the end of the Termination Notice Period;
. For early termination of Maintenance Services for any or
all Equipment under a three (3) year Service Request,
Customer shall remit with respect to the terminated
Maintenance Services fifty (50%) percent of the Charges
remaining in the first twelve (12) month period, thirty-
five (35%) of the Charges remaining in the second twelve
(12) month period, and twenty-seven (27%) percent of the
Charges remaining in the third twelve (12)month period
after the end of the Termination Notice Period.
All such payment made under this Section shall be paid as
liquidated damages and not as a penalty. Accordingly, the
Parties acknowledge and agree that the payments provided for
in this Section 12.4(a) are fair and reasonable.
(ii) Notwithstanding the foregoing, liquidated damages will not
apply in the event that Customer replaces, (i.e. changes)
Equipment models at an End User Site, and retains Equant as
its Service provider for the replaced, (i.e. changed)
Equipment at that End User Site.
12.5 SURVIVAL.
The obligations of the parties under this Agreement, which by their
nature would continue beyond the termination, cancellation or
expiration of this Agreement, shall survive termination, cancellation
or expiration of this Agreement.
12.6 TERMINATION ASSISTANCE.
At the request of Customer made upon reasonable written notice to
Equant, following termination of this Agreement, in whole or in part,
and for any reason except in the event of termination occurring in
accordance with Articles 12.t(a) (Grounds for Termination -Payment
Default), 12.1 (b) (Grounds for Termination - Breach of Contract),
12.1 (d) (Grounds for Termination - Insolvency Event), 12.1 (e)
(Grounds for Termination Corporate Dissolution or Liquidation) and
12.1(f) (Grounds for Termination - Convenience), Equant will: (i)
continue to provide to Customer the Services for a period of up to one
hundred eighty (180) calendar days, for the same Charges set forth in
Exhibit 2 (Services List and Pricing), except that all provisions of
Section 4.5 (Adjustment to Charges) shall apply; and (ii) cooperate
with and assist Customer in conducting an orderly and efficient
transition of the Services to Customer or any subsequent vendor(s).
Additionally, at Customer's written request, Equant will negotiate in
good faith to provide, at a mutually acceptable rate, any commercially
reasonable transition services not described in Attachment A
(Statement of Work) which may facilitate a smooth and orderly
transition.
Article 13 - GENERAL
13.1 NOTICES.
(a) Except as otherwise specified in this Agreement, all notices,
requests, consents, approvals and other communications required
or permitted under this Agreement will be in writing and will be
deemed given: (i) when delivered personally; or (ii) when sent by
telecopy to the number specified below (with telecopier
confirmation slip retained by the sender and followed by a copy
sent by first class U.S. mail not later than the next Business
Day); or (iii) one business day after being sent by U.S. express
mail or by reputable overnight courier service, delivery charges
prepaid, in each case, to the person, telecopy number and/or
address specified below:
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IN THE CASE OF EQUANT:
EQUANT INTEGRATION SERVICES, INC.
45 Orville Drive
Bohemia, New York 11716
To the attention of: DIRECTOR, LEGAL AFFAIRS
Telecopy Number: (516) 563-9112
IN THE CASE OF CUSTOMER:
CLARENT CORPORATION
850 CHESAPEAKE DRIVE
REDWOOD CITY, CALIFORNIA 95063
To the attention of: Director, Worldwide Contracts
Telecopy Number: (650) 367-9966
(b) Either Party may from time to time change its contact person,
address or telecopy number for notification purposes upon at
least fifteen (15) Business Days' notice to the other Party of
the new contact person, address or telecopy number.
(c) A copy of any notice, request, consent, approval or other
communication to an Assignee of either Party will be sent to the
representative, telecopy number and/or address of such Party
specified in such Section, in either case as changed from time to
time in accordance therewith. Notices sent by telecopy (with
telecopier confirmation slip retained by the sender) will be
followed by a copy sent by first class mail. Notices may be by
U.S. express mail or, within any country or by reputable
overnight courier service and will be deemed given on the next
business day.
13.2 DISPUTES.
(a) NEGOTIATION.
Any Party believing that a dispute, controversy or claim relating
to this Agreement (a "DISPUTE") has arisen between the Parties
will provide the other Party with a written statement of the
nature of such Dispute.
(i) Within three (3) Business Days of such notice being given,
the Program Managers (or their designees) will meet and
attempt to resolve the Dispute through negotiation. If the
Program Managers are unable to resolve the Dispute within
ten (10) Business Days of the commencement of negotiations,
the Customer Program Manager will notify the Vice President,
having responsibility for the Customer account and the
Equant Program Manager will notify the Vice President,
Strategic Business Unit, (such persons, the "SENIOR
MANAGERS"), and each Program Manager will, not later than
the twelfth (12th) day following commencement of
negotiations, provide both Senior Managers with a written
statement describing his or her respective position
concerning the Dispute.
(ii) Within five (5) Business Days of the date the last of such
statements has been provided, the Senior Managers will meet
and attempt to resolve the Dispute through negotiation. If
the Senior Managers are unable to resolve the Dispute within
ten (10) Business Days of the commencement of negotiations,
either Party may, upon notice to the other Party, submit the
Dispute to a court or jury, or to appeal to a higher court
to commence litigation proceedings.
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13.3 CHOICE OF LAW.
This Agreement shall be governed by, and interpreted and construed in
accordance with, the laws of the State of New York, excluding choice
of law principles thereof.
13.4 JURISDICTION.
In the event that any dispute between the Parties, the Parties hereby
agree to the following:
(a) Customer hereby irrevocably and unconditionally consents to
commence any action, suit or proceedings arising out of or,
relating to this Agreement, the matters referred to herein or the
transactions contemplated hereby in the courts of the State of
New York located within the Counties of Nassau or Suffolk and of
the United States of America located in the Eastern District of
the State of New York; and
(b) Equant hereby irrevocably and unconditionally consents to
commence any action, suit or proceedings arising out of or,
relating to this Agreement, the matters referred to herein or the
transactions contemplated hereby in the courts of the State of
California located in the county of Santa Clara and of the United
States of America located in the Northern District of the State
of California.
(c) The Parties also hereby irrevocably and unconditionally waive any
objection to the laying of venue of any action, suit or
proceeding arising out of this Agreement, the matters referred to
herein or the transactions contemplated hereby in any court other
than those specified above, and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any
such court that any such action, suit or proceeding brought in
any such court has been brought in an inconvenient forum.
13.5 CHANGE CONTROL.
(a) Either Party may, from time to time, during the term of this
Agreement, request in writing changes, adjustments or
clarifications to the scope of Services being performed by Equant
under any Statement of Work or in any Service Request, in
accordance with the procedures set forth in this Section 13.5(a)
(hereinafter "CHANGE CONTROL PROCEDURE"). The Parties shall
confer to evaluate the impact that the requested changes will
have on the resources used by Equant to perform the Services, on
the ability of Equant to meet the performance specifications or
other obligations with respect to Equant's performance of the
Services, and on the Charges then payable by Customer. The
Parties shall work together to evaluate all information exchanged
in connection with the change request and revise their
responsibilities and/or amounts paid by Customer to Equant.
Equant shall have no obligation to implement the requested
changes to the Services until these Change Control Procedures
have been completed.
(b) Customer is responsible to provide complete and accurate
information (hereinafter "INFORMATION") to Equant, in order that
Equant can properly review the necessary scope of work to
determine the Charges (which have been fully described in this
Statement of Work or in any Service Request). In the event that
Equant reasonably determines during the Term that such
Information is incomplete or inaccurate, and the Services
described herein do not correctly reflect the Services being
provided, or that the cost to provide the Services has increased,
the Parties shall execute a change request, in accordance with
the Change Control Procedures described in Section 13.5(a).
Equant shall have no obligation to continue to provide the
Services until such Change Control Procedures have been
completed.
13.6 ASSIGNMENT.
This Agreement will be binding upon and will inure to the benefit of
each Party hereto, its successors and assigns. Neither Party may
assign this Agreement or any of its rights or obligations hereunder
without the consent of the other Party and any such attempted
assignment will be void; provided, however, that
23
<PAGE>
each Party, without the consent of the other Party, may assign this
Agreement or any of its rights or obligations hereunder to one of
its Affiliates, provided, further, that either Party may assign this
Agreement or any of its rights or obligations hereunder without the
consent of the other Party pursuant to a change of control
transaction (including without limitation a merger, consolidation or
other similar corporate transaction, stock sale or sale of
substantially all assets), as long as such Party, if it survives
such transaction, remains primarily liable for its obligations
hereunder.
13.7 NON-SOLICITATION.
Neither Party will solicit, persuade or recruit to employ any of the
other Party's employees during the period commencing on the date
hereof and ending one (1) year after the termination date of this
Agreement. This Section does not apply to Equant employees who
respond to recruitment offering which are not specifically targeted
at Equant employees.
13.8 WAIVER.
A failure or delay of any Party's exercise or partial exercise of
any right or remedy it has under this Agreement will not operate to
impair, limit, preclude, cancel, waive or otherwise affect such
right or remedy. No waiver by any Party of any breach or covenant
hereunder shall be construed to be a waiver of any succeeding breach
or any other covenant.
13.9 COUNTERPARTS.
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one single agreement between
the Parties.
13.10 HEADINGS. The article and section headings and the table of
contents are for reference and convenience only and will not be
considered in the interpretation of this Agreement.
13.11 SEVERABILITY.
If any provision of this Agreement is held to be invalid or
unenforceable at law, then the Agreement will be deemed amended by
revising such provision to make it valid and enforceable while
preserving the Parties' original objective thereunder or, if such
revision is not possible, by removing or limiting such provision to
the extent invalid or unenforceable, and the remaining provisions of
the Agreement will not be affected thereby and will be valid and
enforceable to the extent permitted by law.
13.12 ENTIRE AGREEMENT.
This Agreement shall incorporate the typed or written provisions on
Customer's orders issued pursuant to this Agreement and shall
constitute the entire agreement between the parties with respect to
the subject matter of this Agreement and the order(s) and shall not
be modified or rescinded, except by a writing signed by Equant and
Customer. Printed provisions on the reverse side of Customer's
orders (except as specified otherwise in this Agreement) and all
provisions on Equant's forms shall be deemed deleted. Estimates or
forecasts furnished by Customer shall not constitute commitments.
The provisions of this Agreement supersede all contemporaneous oral
agreements and all prior oral and written communications and
understandings of the parties with respect to the subject matter of
this Agreement.
13.13 INDEPENDENT CONTRACTOR; SUBCONTRACTORS.
(a) The performance by Equant of its duties and obligations under
this Agreement will be that of an independent contractor and
nothing contained in this Agreement, will create or imply an
agency relationship between Equant on the one hand, and
Customer, on the other hand, nor will this Agreement be deemed
to constitute a joint venture or partnership between Equant, on
the one hand, and Customer on the other hand. Equant agrees and
represents that it is an independent contractor and its
personnel are not agents or employees of Customer for federal
tax purposes and are not entitled to any employee benefits
therefrom. Equant and Customer each assume
24
<PAGE>
sole and full responsibility for the acts of their respective
personnel, Affiliates and, in the case of Equant,
subcontractors, and Equant and Customer and their respective
personnel have no authority to make commitments or enter into
contracts on behalf of, bind or otherwise obligate the other
Party in any manner whatsoever.
(b) Equant may provide all or part of the Services through its
Affiliates or through subcontractors. No use of Affiliates or
subcontractors by Equant will relieve Equant of any of its
obligations or responsibilities under this Agreement. Equant
will be responsible for all payments to its Affiliates and
subcontractors.
13.14 THIRD PARTY BENEFICIARIES.
Each Party intends that this Agreement will not benefit, or create
any right or cause of action in or on behalf of, any person or
entity other than Equant or Customer.
13.15 CONSENTS, APPROVALS AND REQUESTS.
Unless otherwise specified in this Agreement, all consents and
approvals, acceptances or similar actions to be given by either
Party under this Agreement shall not be unreasonably withheld or
delayed and each Party shall make only reasonable requests under
this Agreement.
13.16 GOOD FAITH AND FAIR DEALING.
In performance of its obligations under this Agreement, each Party
will act fairly, reasonably, timely and in good faith.
13.17 COVENANT OF FURTHER ASSURANCES.
Equant and Customer covenant and agree that, subsequent to the
execution and delivery of this Agreement and without any additional
consideration, each of Equant and Customer will execute and deliver
any further legal instruments which are or may become reasonably
necessary to effectuate the purposes of this Agreement.
13.18 PUBLICITY.
(a) Each Party will (i) submit to the other all advertising,
written sales promotions, press releases and other publicity
matters relating to this Agreement in which the other Party's
name or mark is mentioned or language from which the connection
of said name or mark may be inferred or implied and (ii) not
publish or use such advertising, sales promotions, press
releases or publicity matters without the other Party's
consent.
(b) Equant shall not, without Customer's prior written consent,
engage in publicity related to this Agreement, or make public
use of any Identification in any circumstances related to this
Agreement. "Identification" means any semblance of any trade
name, trademark, service mark, insignia, symbol, logo, or any
other designation or drawing of Customer or its Affiliates.
Equant shall remove or obliterate any Identification prior to
any use or disposition of any material rejected or not
purchased by Customer.
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<PAGE>
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement this 30/th/
day of December, 1998.
EQUANT INTEGRATION SERVICES, INC. CLARENT CORPORATION
By: /s/ Richard H. Blaustein By: /s/ Ilene Harding
--------------------------------- --------------------------------
Printed Name: Richard H. Blaustein Printed Name: Ilene Harding
Title: CEO, North America Title: Director, World Wide
Contracts
Date:_______________________________ Date:______________________________
26
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ATTACHMENT A
STATEMENT OF WORK
27
<PAGE>
EXHIBIT 1
EQUANT NORMAL BUSINESS HOURS
SERVICE CENTER DAYS STANDARD BUSINESS HOURS
Argentina Buenos Aries M-F 0900-1800
Buenos Aries M~F 0900-1800
La Plata M-F 0900-1800
Mar del Plata M-F 0900-1800
Mendoza M-F 0900-1800
Rosario M-F 0900-1800
Cordoba M-F 0900-1800
-----------------------------------------------------------------------------------
Australia Adelaide M-F 0900-1700
Brisbane M-F 0900-1700
Melbourne M-F 0900-1700
Perth M-F 0900-1700
Sydney M-F 0900-1700
-----------------------------------------------------------------------------------
Austria Vienna M-TH 0830-1700
FRI 0830-1430
-----------------------------------------------------------------------------------
Belgium Brussels M-F 0830-1730
-----------------------------------------------------------------------------------
Brazil Belem M-F 1830-1200 1400-1730
Belo Horizonte M M-F 1830-1200 1400-1730
Brasilla DF M-F 1830-1200 1400-1730
Campinas M-F 1830-1200 1400-1730
Curtiba M-F 1830-1200 1400-1730
Florionapolis M-F 1830-1200 1400-1730
Fortaleza M-F 1830-1200 1400-1730
Manaua M-F 1830-1200 1400-1730
Puerto Allegra M-F 1830-1200 1400-1730
Recife M-F 1830-1200 1400-1730
Rio de Janiero M-F 1830-1200 1400-1730
Salavador M-F 1830-1200 1400-1730
Sao Paolo M-F 1830-1200 1400-1730
-----------------------------------------------------------------------------------------------
Canada Montreal M-F 1900-1700
Toronto M-F 1900-1700
Vancouver M-F 1900-1700
-----------------------------------------------------------------------------------------------
Chile Concepcion M-F 0900-1800
Inuique M-F 0900-1800
Punta Arenas M-F 0900-1800
Santiago M-F 0900-1800
Temuco M-F 0900-1800
-----------------------------------------------------------------------------------------------
China Beijing M-F 0800-1200 1300-1700
Shanghai M-F 0800-1200 1300-1700
-----------------------------------------------------------------------------------------------
Denmark Copenhagen M-F 08300-1530
-----------------------------------------------------------------------------------------------
Egyptian Arab Republic Cairo M-F 0800-1530
-----------------------------------------------------------------------------------
Finland Helsinki M-F 0800-1600
-----------------------------------------------------------------------------------
France Coubevoie M-F 0830-1730
Lyon M-F 0830-1730
Marseille M-F 0830-1730
Nice M-F 0830-1730
Orly Airport M-F 0830-1730
Strasbourg M-F 0830-1730
Toulouse M-F 0830-1730
-----------------------------------------------------------------------------------
Germany Berlin M-F 1830-1730
Bremen M-F 1830-1730
Dusseldorf M-F 1830-1730
Frankfurt M-F 1830-1730
Hamburg M-F 1830-1730
Munich M-F 1830-1730
Stuttgart M-F 1830-1730
-----------------------------------------------------------------------------------
Greece Athens (Town) M-F 0800-1700
Thessaloniki M-F 0800-1700
-----------------------------------------------------------------------------------
Hong Kong Hong Kong M-F 0845-1730
-----------------------------------------------------------------------------------
Indonesia Jakarta M-F 0830-1700
-----------------------------------------------------------------------------------
Ireland Dublin M-F 0830-1700
Shannon M-F 0830-1700
-----------------------------------------------------------------------------------
Italy Milan M-F 0830-1730
Rome M-F 0830-1730
-----------------------------------------------------------------------------------
Ivory Coast Abidjan M-F 0800-1200 1445-1800
-----------------------------------------------------------------------------------------------
Japan Nagoya M-F 0900-1730
Osaka M-F 0900-1730
Tokyo M-F 0900-1730
-----------------------------------------------------------------------------------
Lebanon Beirut M-F 0730-1530
Malaysia Kuala Lumpur M-F 0900-1700
-----------------------------------------------------------------------------------
Mexico Aguas Callentes M-F 0900-1900
28
<PAGE>
SERVICE CENTER DAYS STANDARD BUSINESS HOURS
Cancun M-F 0900-1900
Chicauhua M-F 0900-1900
Cuernavaca M-F 0900-1900
Cuidad Juarez M-F 0900-1900
Guadalajara M-F 0900-1900
Hermosillo M-F 0900-1900
Leon/Guanjuato M-F 0900-1900
Merida M-F 0900-1900
Mexico City M-F 0900-1900
Monterrey M-F 0900-1900
Puebla M-F 0900-1900
Queretaro M-F 0900-1900
Veracruz M-F 0900-1900
-----------------------------------------------------------------------------------
Netherlands Amsterdam M-F 0900-1700
-----------------------------------------------------------------------------------
New Zealand Auckland M-F 0900-1700
Christchurch M-F 0900-1701
Wellington M-F 0900-1702
-----------------------------------------------------------------------------------
Norway Oslo M-F 0830-1630
-----------------------------------------------------------------------------------
Portugal Lisbon M-F 0900-1300 1430-1800
Porto M-F 0900-1300 1430-1800
-----------------------------------------------------------------------------------------------
Russia Leningrad M-F 0900-1800
Moscow M-F 0900-1800
-----------------------------------------------------------------------------------
Saudi Arabia Dhahran Sat- 0830-1330 1600-1900
Wed.
Thur.
Jeddah Sat- 0830-1330 1600-1900
Wed.
Thur. 0830-1330
Riyadh Thur. 0830-1300
-----------------------------------------------------------------------------------------------
Senegal Dakar M-F 0830-1800
-----------------------------------------------------------------------------------
Singapore Singapore M-F 0830-1730
-----------------------------------------------------------------------------------
South Africa Capetown M-F 0800-1700
Durban M-F 0800-1700
Johannesburg M-F 0800-1700
-----------------------------------------------------------------------------------
South Korea Seoul M-F 0900-1800
-----------------------------------------------------------------------------------
Spain Barcelona M-F 0900-1400 1500-1800
Las Palmas M-F 0900-1400 1500-1800
Madrid M-F 0900-1400 1500-1800
Palma de Mallorca M-F 0900-1800
Malaga M-F 0900-1800
Valencia M-F 0900-1800
Alicante M-F 0900-1800
Bibao M-F 0900-1800
Tenerife M-F 0900-1800
-----------------------------------------------------------------------------------------------
Switzerland Geneva M-F 0800-1700
Zurich M-F 0800-1700
-----------------------------------------------------------------------------------
Syrian Arab Republic Damascus Sat- 0830-1330 1730-1930
Thur.
-----------------------------------------------------------------------------------------------
Taiwan Taipai M-F 0900-1730
-----------------------------------------------------------------------------------
Thailand Bangkok M-F 0830-1700
-----------------------------------------------------------------------------------
United Kingdom Birmingham M-F 0900-1730
Edinburgh M-F 0900-1730
London (Gatwick) M-F 0900-1730
London (Heathrow) M-F 0900-1730
Maidenhead M-F 0900-1730
Manchester M-F 0900-1730
Stanstead M-F 0900-1730
-----------------------------------------------------------------------------------
USA Atlanta M-F 090041700
Boston M-F 0900-1700
Chicago M-F 0900-1700
New York M-F 0900-1700
JFK Airport M-F 0900-1700
Miami M-F 0900-1700
Newark M-F 0900-1700
Philadelphia M-F 0900-1700
Pittsburgh M-F 0900-1700
Tampa M-F 0900-1700
Washington DC M-F 0900-1700
Los Angeles M-F 0900-1700
San Francisco M-F 0900-1700
Houston M-F 0900-1700
Seattle M-F 0900-1700
29
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SERVICE CENTER DAYS STANDARD BUSINESS HOURS
Honolulu M-F 0900-1700
Venezuela Caracas M-F 0800-1200 1400-1800
-----------------------------------------------------------------------------------
La Guaria M-F 0800-1200 1400-1800
Maracaibo M-F 0800-1200 1400-1800
Puerto La Cruz M-F 0800-1200 1400-1800
-----------------------------------------------------------------------------------------------
Vietnam Hanoi City M-F 0700-1700
Ho Chi Minh City M-F 0700-1700
-----------------------------------------------------------------------------------
30
<PAGE>
EXHIBIT 2
SERVICE REQUEST PROCESS AND SPECIAL BID PROCESS
31
<PAGE>
[DIAGRAM APPEARS HERE]
32
<PAGE>
[DIAGRAM APPEARS HERE]
33
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An extra section break has been inserted above this paragraph. Do not delete
this section break if you plan to add text after the Table of
Contents/Authorities. Deleting this break will cause Table of
Contents/Authorities headers and footers to appear on any pages following the
Table of Contents/Authorities.
1
<PAGE>
STATEMENT OF WORK
BETWEEN
EQUANT INTEGRATION SERVICES, INC.
AND
CLARENT CORPORATION
EQUANT CONTRACT NUMBER TM-3651
DATED: DECEMBER 29, 1998
<PAGE>
TABLE OF CONTENTS
Page
Section 1.- Definitions............................................................................. 1
Section 2.- Term.................................................................................... 2
Section 3.- Commencement of Maintenance............................................................. 2
3.1 Program Management......................................................................... 2
3.2 Transition of Maintenance Services......................................................... 2
3.3 Existing Equipment......................................................................... 2
3.4 Certification of Existing Equipment........................................................ 2
3.5 Additional Equipment....................................................................... 3
3.6 Lead Time for New Equipment Types.......................................................... 3
3.7 Training................................................................................... 3
3.8 Certain Deliverables....................................................................... 3
Section 4.- Site Surveys............................................................................ 3
4.1 Existing End User Sites.................................................................... 3
4.1.1 Equant Responsibilities............................................................. 3
4.1.2 Clarent Responsibilities............................................................ 4
4.2 New End User Sites......................................................................... 4
4.2.1 Equant Responsibilities............................................................. 5
4.3 Charges for Site Surveys................................................................... 6
Section 5.- Site Preparation........................................................................ 6
Section 6.- Maintenance Services.................................................................... 6
6.1 Clarent Responsibilities................................................................... 6
6.2 Equant Responsibilities.................................................................... 7
6.2.1 Hours of Coverage................................................................... 7
6.2.2 On-Site Maintenance Services........................................................ 7
6.2.3 Levels of Coverage.................................................................. 7
6.2.4 Maintenance Service Closure Procedures.............................................. 8
6.2.5 Preventive Maintenance.............................................................. 8
6.2.6 Spares.............................................................................. 8
PAGE i
<PAGE>
TABLE OF CONTENTS
(CONTINUED)
Page
6.2.7 Exclusions to Maintenance Services.................................................. 9
Section 7 - Installations, Moves, Adds, Changes, Deletions and Equipment
Upgrades ("IMACs")................................................................................... 11
7.1 IMAC General Provision..................................................................... 11
7.1.1 Scheduling.......................................................................... 11
7.1.2 Site Preparation.................................................................... 11
7.1.3 IMAC Rescheduling................................................................... 12
7.1.4 Charges for IMACs................................................................... 12
7.2 Installation............................................................................... 12
7.2.1 Equant Responsibilities............................................................. 12
7.2.2 Clarent Responsibilities............................................................ 13
7.3 Installation of Additional Equipment and/or Components at an Existing End User Site........ 13
7.4 Deinstallation of a Whole End User Site, or Equipment and/or Components from a End
User Site................................................................................. 13
7.4.1 Clarent Responsibilities........................................................... 13
7.4.2 Equant Responsibilities............................................................ 14
7.5 Movement of Equipment within an End User Site.............................................. 14
7.6 Movement of Equipment between Sites........................................................ 15
7.7 Modifications and Upgrades of Equipment.................................................... 15
Section 8.- Technical Support....................................................................... 15
8.1 Hardware Technical Support................................................................. 15
8.2 Escalation Provisions...................................................................... 15
Section 9.- Reporting............................................................................... 15
Section 10- Operational Project Reviews............................................................. 16
Section 11.- Service Levels and Performance.......................................................... 16
11.1 Response Times and Time To Repair......................................................... 16
11.2 Exceptions to Performance Standard Measurements........................................... 16
PAGE ii
<PAGE>
STATEMENT OF WORK
During the term of this Statement of Work, between Equant Integration Services,
Inc. ("Equant") and Clarent Corporation ("Clarent"), Clarent hereby designates
Equant as an Authorized Clarent Service Provider for all Equipment, as
identified in Exhibit 1, and as may be amended from time to time.
SECTION 1. - DEFINITIONS
All capitalized terms used but not defined herein shall have the meanings set
forth in the Agreement.
COMPONENT means a part, module or portion of any whole
unit of Equipment, including without
limitation, cards, drives and subassemblies.
CNCC means the CLARENT NETWORK CONTROL CENTER as
described in Exhibit 3.
GSC means Equant's regional Global SUPPORT
CENTER, located in London, and planned for
New York and Singapore, as described in
Exhibit 3.
FAULT means a fault, failure or malfunction in the
operational status of the Equipment.
FAULT CALL means the notification made by the End User
to the GSC to report the non-operability of
the Equipment, and the associated request for
Maintenance Services.
EQUIPMENT means a whole unit or item of hardware
installed at the End User Sites for which
Equant is providing the Services. Equipment
is comprised of various Components.
PROGRAM MANAGER means the personnel designated by each Party
to oversee the implementation and delivery of
the Services described herein.
PROPER OPERATIONAL
CONDITION means the operational status as set forth by
the Manufacturer and/or Supplier, or as
mutually agreed by the Parties and shall
include the ability of any item of Equipment
to run the specified operating system
software, but not any applications existing
on the Equipment.
RESPONSE TIME means the amount of time which elapses
between the placement of a Fault Call and the
arrival of a technician at the End User Site.
REPAIR TIME means the amount of time which elapses
between the arrival of the technician at the
End User Site and the restoration of the
Equipment to Proper Operational Condition.
SOFTWARE means any licensed software provided by
Clarent or by the End User, which is
installed on the Equipment, including any
changes, revisions, modifications, updates,
correction releases or enhancements thereto,
and including all related documentation and
any physical medium on which it is provided.
SPARES means the whole units, or modules, or
components of the Equipment used to replace
or repair Equipment that is not in Proper
Operational Condition.
PAGE 1
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SECTION 2. - TERM
The term of this Statement of Work shall commence on January 1, 1999
and continue for a period of five (5) years, concluding on December
31, 2003, (the "Statement of Work Initial Term"). Provided, however,
that should the Agreement terminate prior to the termination date of
this Statement of Work, this Statement of Work shall terminate
contemporaneously with the Agreement. Following the expiration of the
Statement of Work Initial Term, the Statement of Work shall continue
on a month to month basis until all terms of renewal are mutually
agreed upon, unless either Party forwards ninety (90) days prior
written notice of termination to the other Party. Thereafter, this
Statement of Work shall renew for successive one (1) year periods
(the "Statement of Work Extended Terms") unless terminated by either
Party by sending written notice of termination to the other Party at
least ninety (90) days prior to the expiration of the Initial Term or
any Extended Term (together referred to as the "Statement of Work
Term", and the last date of the Term shall be referred to as the
"Normal Expiration Date") or pursuant to Article 12 of the Agreement,
except that any provisions identified elsewhere in the Agreement as
surviving termination shall continue in effect.
SECTION 3. - COMMENCEMENT OF MAINTENANCE
3.1 PROGRAM MANAGEMENT
Upon execution of this Statement of Work, each Party shall
appoint a Program Manager who has the responsibility to oversee
the implementation and delivery of the Services. Such personnel
shall have the appropriate authority to commit resources within
their respective organizations necessary for the delivery of the
Services.
3.2 TRANSITION OF MAINTENANCE SERVICES
Within thirty (30) calendar days from the date of execution of
this Statement of Work, the Parties shall mutually agree to a
plan for the commencement of Maintenance Services by Equant for
all existing Clarent Equipment installed at the End User Sites
designated by Clarent (hereinafter, the "Transition Plan"), a
copy of which shall be attached to this Statement of Work as
Exhibit 6).
3.3 EXISTING EQUIPMENT
Within ten (10) Business Days from the date of execution of this
Statement of Work, Clarent shall provide to Equant, in electronic
format, a complete database of Clarent Equipment by location and
by type, which shall be attached as Exhibit 1, including, model
number, type, serial number (where available), and location (full
address, including ZIP/postal code). A contact name, and phone
number will be provided for each Clarent End User Site. Clarent
states that to the best of its knowledge, the Equipment listed in
Exhibit 1 has been continuously maintained and is in Proper
Operational Condition at the time of execution of this Statement
of Work. Clarent shall make available, wherever possible, all
maintenance records relating to the Equipment.
3.4 CERTIFICATION OF EXISTING EQUIPMENT
If Equant agrees to commence Maintenance Services based solely on
the listing provided by Clarent for any given End User Site, and
at the initial Maintenance Service call it is determined by both
Parties that the Fault is due to a lack of on-going maintenance,
Clarent agrees that such Services will be invoiced by Equant for
materials, and labor at the rates stated in Exhibit 2.
PAGE 2
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3.5 ADDITIONAL EQUIPMENT
Equant will be responsible to commence Maintenance Services upon
completion of installation of any Clarent Equipment which is not
listed in Exhibit 1.
3.6 LEAD TIME FOR NEW EQUIPMENT TYPES
The Parties recognize that in order for Equant to provide the
Services, Equant needs sufficient time to deploy the necessary
Clarent-provided Spares (as further described in Section 6.2.6)
to the country where the Services are requested. In all cases
where Equant is requested to provide Services for Equipment types
which are not currently maintained in the country where the
Services are requested, Clarent shall consign all necessary
Spares (in accordance with Section 6.2.6 below) and Equant shall
be given a reasonable lead time to deploy the necessary Spares in
that country.
3.7 TRAINING
At least ten (10) business days prior to the scheduled date for
the commencement of Maintenance Services, Clarent will provide,
at no cost to Equant, all necessary training required by Equant
for the performance of its responsibilities as set forth in this
Statement of Work. Thereafter, Equant shall be responsible for
the training of all its technical service personnel (hereinafter
"Equant Technicians"), including subcontractor technical service
personnel, to provide an adequate level of service as defined in
this Statement of Work. A training schedule shall be included as
part of the Transition Plan.
3.8 CERTAIN DELIVERABLES
Certain deliverables to be provided by Equant, Clarent, or
jointly, pursuant to this Statement of Work are set forth in
Exhibit 4.
SECTION 4. - SITE SURVEYS
4.1 EXISTING END USER SITES
Prior to commencement of Services at any End User Site, as set
forth in Exhibit 1, the Parties' respective Program Managers will
review the list of Clarent Equipment for each End User Site. If
deemed necessary by both Program Managers, Equant, in
coordination with Clarent, shall conduct a site survey as
described below.
Accompanied by a Clarent representative, Equant shall perform a
site survey to gather appropriate information in order to
determine if the Equipment is in Proper Operational Condition and
can be accepted by Equant for the commencement of Services.
Equant shall take all necessary precautions during the site
survey to ensure that the operation of the Equipment is
uninterrupted.
4.1.1 EQUANT RESPONSIBILITIES
Provided a local contact is available to accompany
Equant, Equant shall perform a site survey for the
specific End User Site. Unless otherwise agreed to
between the Parties, Equant shall perform site surveys
during normal business hours. In the event that a site
survey cannot be completed during Business Hours due to
the complexity of the site survey requirements or
difficulty in gaining access to the End User Site, the
Equant Technician shall return on the next Business Day
to complete the site survey. By special request of
Clarent, Equant may be
PAGE 3
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required to perform site surveys at times other than
Business Hours or on non-Business Days.
Items in the site survey form to be documented by
Equant shall include:
. Contents and arrangement of Equipment cabinets (as
applicable);
. AC power for Equipment and uninterruptable power
supply system (as appropriate) requirements;
. An inventory of existing Equipment in the
Equipment cabinets;
. Location of Equipment cabinets;
. Inspection and report on the physical condition of
the in-house cabling and the connections up to the
demarcation points as best can be determined from
visual inspection;
. Cable routes and measurements as best can be
determined from visual inspection;
. Environmental conditions (e.g. heat, ventilation,
air conditioning, humidity) as best can be
determined from visual inspection.
4.1.2 CLARENT RESPONSIBILITIES
Clarent shall provide Equant the following information
for each End User Site to enable Equant to perform the
site survey:
. End User Site location and address;
. Local End User contact and phone number, as well
as name and telephone of alternate contact at site
(if available);
. Potential electrical interference problems, but
not to include measurements with power monitoring
equipment;
. Access hours for site availability;
. List (types and quantities) of Equipment to be
installed at the End User Site;
. Any technical data, including without limitation,
configurations, schematics and diagrams, which are
available prior to the site survey;
. Provide all diagnostic and testing software
necessary to perform Maintenance Services.
4.2 NEW END USER SITES
Prior to commencement of Services at a new End User Site, as
requested in a Service Request, Equant reserves the right to
conduct a site survey in order to determine the requirements for
the installation of the Equipment at that End User Site.
PAGE 4
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4.2.1 EQUANT RESPONSIBILITIES
Provided a local contact is available to accompany Equant,
Equant shall perform a site survey for the specific End User
Site. Unless otherwise agreed to between the Parties, Equant
shall perform site surveys during normal business hours. In
the event that a site survey cannot be completed during
Business Hours due to the complexity of the site survey
requirements or difficulty in gaining access to the End User
Site, the Equant Technician shall return on the next
Business Day to complete the site survey. By special request
of Clarent, Equant may be required to perform site surveys
at times other than Business Hours or on non-Business Days.
Items in the site survey form to be documented by the Equant
shall include:
. Contents and arrangement of equipment cabinets (as
applicable);
. AC power for Equipment and uninterruptable power supply
system (as appropriate) requirements;
. Potential electrical interference problems, but not to
include measurements with power monitoring equipment;
. Construction and infrastructure needs as best can be
determined from visual inspection;
. Approximate cable measurements;
. If applicable, an inventory of existing equipment in
the equipment cabinets;
. Location of equipment cabinets;
. Distance between the equipment cabinets and demarcation
points at the circuit termination block(s);
. Environmental conditions (e.g. heat, ventilation, air
conditioning, humidity) as best can be determined from
visual inspection;
. Labeling of cabinet locations and circuit demarcations
for installers;
. Other tasks, as may be required.
All other relevant information affecting the delivery,
installation, and operation of the Equipment shall be
detailed in the Site Survey Form completed by Equant. In the
event Equant does not provide the site survey services,
Clarent shall provide Equant with a copy of all relevant
site documentation for Equant's records. Equant reserves the
right to delay commencement of Maintenance Services until
Equant has reviewed the results of any site surveys that
Equant did not perform.
4.2.2 END USER RESPONSIBILITIES
. Clarent shall provide Equant with the following
information for each End User Site to enable Equant to
perform the site survey:
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. End User Site location and address;
. Local End User contact and phone number, as well as
name and telephone of alternate contact at site (if
available);
. Access hours for site availability;
. List (types and quantities) of Equipment to be
installed at the End User Site;
. Any technical data, including without limitation,
configurations, schematics and diagrams, which are
available prior to the site survey.
4.3 CHARGES FOR SITE SURVEYS
Unless otherwise agreed to between the Parties, the charges for
site surveys are set forth in Table 2.2 (Hourly Labor Rates) of
Exhibit 2 (Services List and Pricing). Site surveys performed
during Business Hours shall be charged at the Business Hour
hourly labor rate, and site surveys performed outside of Business
Hours, or on non-Business Days shall be charged at the non-
Business Hour hourly labor rate.
SECTION 5. - SITE PREPARATION
If as a result of a site survey, any further site preparation requirements
are needed, Clarent shall ensure that all such requirements are completed
prior to Equant providing any further Services. If End User fails to ensure
that all required site preparations are completed, Equant is relieved of
its responsibilities at that End User Site until such time as End User
proper and full preparations have been completed.
SECTION 6. MAINTENANCE SERVICES
Maintenance Services provided by Equant shall consist of restoring the
Components and the Equipment to Proper Operational Condition in the event
of a Fault, based on Fault localization provided by the CNCC and by Equant,
using diagnostic aids and test equipment as necessary. Failure or
malfunction of the Components or Equipment shall be corrected by adjustment
or by replacement of cards, modules, sub-assemblies or defective parts.
6.1 CLARENT RESPONSIBILITIES
Upon determination of a Fault, the End User shall contact the
GSC. The GSC shall gather the necessary information regarding the
End User (including contact information), and the nature of the
Fault. This information shall be provided to the CNCC, which
shall be responsible to perform all first level diagnostics and
remote troubleshooting ("Diagnostics"). Such Diagnostics shall
consist of:
. Determination of the Fault at the Component level, whenever
possible; and
. Elimination of all software-related faults.
Upon completion of such Diagnostics, the CNCC shall promptly
advise the GSC that if the Fault is hardware related, and request
dispatch of an Equant Technician to the End User Site in
accordance with the Fault reporting procedures ("Fault Reporting
Procedure") mutually agreed to between Clarent and Equant. The
Fault Reporting Procedure shall be jointly developed between the
Clarent Program Manager and the Equant Program Manager within
fifteen (15) Business Days from the date of execution of
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this Statement of Work. All Fault Calls shall contain the
following information:
. Ticket Number/Clarent Service Request Number;
. End User Site Address, contact and phone number and
identification code;.
. Equipment and/or Component;
. Nature of the Fault;
. Local time at effected End User Site;
. Hours of Access;
. Prioritization of Dispatch (immediate or deferred).
6.2 EQUANT RESPONSIBILITIES
6.2.1 HOURS OF COVERAGE
Hours of coverage is defined as Equant being on-call
for on-site Maintenance Services as set forth in
Exhibit 4.
6.2.2 ON-SITE MAINTENANCE SERVICES
Equant shall provide Maintenance Services for the
Equipment in accordance with the procedures set forth
in Section 3. The appropriate contact number at the
CNCC shall be provided to Equant prior to commencement
of Services. This number may be changed by Clarent from
time to time upon timely prior written notice to
Equant.
On-site Maintenance Services shall consist of:
. Arrival of an Equant technician with necessary
Spares at the End User Sites within the Response
Times as set forth in Exhibit;
. Replacement of defective Components and/or
Equipment;
. Operate diagnostics on PC System Boards,
Communications Boards, and peripherals.
6.2.3 LEVELS OF COVERAGE
Equant shall provide on-site Maintenance Services for
the following level of coverage:
. Response times as set forth in Exhibit 1, during
the hours of coverage;
. Equant shall provide Maintenance Services labor
for Equipment covered under this Agreement.
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6.2.4 MAINTENANCE SERVICE CLOSURE PROCEDURES
Upon completion of service action and prior to leaving
the End User Site, Equant will contact the CNCC to
initiate call closure. Equant shall provide the
following information to the CNCC:
. Site location;
. Ticket number/Clarent number;
. End User contact name;
. Time of repair;
. Exact repair solution;
. Equant engineer's name;
. Status of Equipment;
. Serial numbers of any replaced Equipment.
6.2.5 PREVENTIVE MAINTENANCE
Equant shall provide preventive maintenance in
conjunction with Service calls as recommended by the
hardware manufacturer, and as mutually agreed to
between the Parties as specified by the Manufacturer
and/or Supplier in conjunction with on-site Maintenance
Services. If additional preventive maintenance services
are requested, Equant will provide such services at a
mutually agreed upon rate. Any Maintenance Services
which may be required as a result of the information
acquired during the performance of preventive
maintenance will be scheduled in coordination with the
CNCC.
6.2.6 SPARES
In accordance with local laws and regulations, Clarent
shall consign a quantity of Spares to Equant, in order
to enable Equant to provide the Services, subject to
advance notice and approval by Clarent. At least sixty
(60) days prior to the commencement of Services, the
Parties shall mutually agree to a Spares consignment
plan which will be attached hereto as Exhibit 5.
(a) Equant shall have the following responsibilities
for all consigned Spares:
. Equant will be responsible for the
warehousing, safekeeping, and deployment of
such Spares for all End User Sites in the
countries defined in Exhibit 1 or such other
countries as the Parties may agree upon.
. Upon termination of the relationship between
the Parties, all such Spares will be
returned, at Clarent's expense, to Clarent's
main office, or will be shipped, at Clarent's
expense, to a Clarent designated location.
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(b) Clarent shall have the following responsibilities
for any Spares that are consigned:
. Clarent will be responsible for the cost and
the quality of repair of all Spares.
. Clarent will be responsible for, and bear the
costs of all direct expenses for shipment of
such consigned Spares, including but not
limited to, freight, customs and duties. If
any of these expenses are paid by Equant,
Equant shall invoice Clarent for these
charges, in accordance with Section 4.1 of
the Agreement.
(c) In any country that Clarent is legally unable to
consign Spares, and provided that Equant may
legally do so, Equant shall purchase and deploy
the necessary Spares, and shall re-invoice Clarent
for the costs thereof. Such purchased Spares shall
be used solely for Clarent's End Users in that
particular country. Prior to termination of the
relationship between the Parties, Clarent and
Equant shall come to a mutually agreement as to
the disposition of any Equant-purchased Spares.
(d) Equant agrees not to re-deploy any Spares provided
under this Section 6.2.6 from the original
consigned location unless agreed to in writing
between the Parties.
(e) Clarent reserves the right to request that a
Clarent representative visit the Spares depots to
confirm that the Spares are in place and available
for use. Such visits shall be referred to as a
"Spares Audit."
Clarent will advise the Equant Program Manager of
all requests for a Spares Audit. The Equant
Program Manager will schedule all Spares Audits
with the Spares depot during local Business Hours,
and in accordance with the following notification
provisions:
. All Spares Audits at depots will be scheduled
no less than ten (10) business days in
advance, for a date and time mutually
acceptable to the Parties;
. The total number of Spares Audits at any
Spares depot shall not exceed more than one
(1) per twelve (12) month period.
6.2.7 EXCLUSIONS TO MAINTENANCE SERVICES
Equant's obligation to provide Maintenance Services
described herein applies only to the maintenance
necessitated by reasonable wear and use of Equipment by
the End User, provided, however, the Parties shall
agree in the Transition Plan or other applicable
document, the extent to which Equant's responsibilities
apply to Equipment covered under Clarent's warranty,
including additional charges, if any.
(a) Equant shall be under no obligation to furnish
Maintenance Services and Equant not be responsible
for any damages to Clarent or its End User for the
loss of the use of the Equipment caused by:
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(1) the partial or total loss of the use of the Equipment
occasioned by temperature or electrical current fluctuation,
fire flood, riots, warfare or any other casualty or loss;
(2) repair of any Equipment, which by reason of age or extreme
or abusive use has become so debilitated as to be beyond
reasonable repair;
(3) any such Services necessitated by improper, erroneous, or
incorrect adjustments, repairs or other services being
performed on the Equipment by any third parties not approved
in writing by Equant;
(4) virus related damage; and/or
(5) the inability of the Equipment and/or Software to properly
process date and change of date information.
Interventions and repairs rendered necessary by the causes set
forth above may be performed by Equant at Clarent's request at
the hourly labor rates set forth in Exhibit 2.
(b) Maintenance Services hereunder do not include:
. the provision of operating suppliers or accessories;
. paint or other refinished materials or labor;
. electrical work external to the Equipment;
. replacement of magnetic media such as disc packs or magnetic
tape;
. provisions of consumables, including without limitation,
ribbons, toner, cartridges and laser printer drum
assemblies; correction of software databases, and/or
programming errors, or any errors or damages caused by or
arising out of input or in the performance of the Services;
. correction of any instabilities in the operation of the
Equipment which are caused by or related to hardware,
software, firmware or system failure, or caused by or
related to the inability of the hardware, software or
firmware to process change of date information.
(c) Equant is not responsible for any instabilities in the operation
of the Equipment which are caused by, or related to (i) the use
of certain software, including Clarent's or End Users proprietary
software, and (ii) combinations of hardware and software.
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SECTION 7. INSTALLATIONS, MOVES, ADDS, CHANGES, DELETIONS AND EQUIPMENT UPGRADES
("IMACS")
7.1 IMAC GENERAL PROVISION
7.1.1 SCHEDULING
Provided Equant has received the Service Request for an
IMAC at least fifteen (15) Business Days prior to the
date such IMAC Service is requested, Equant will
schedule with the CNCC, the following Services at the
applicable End User Site for the date set forth in the
Service Request:
. installations of Equipment at new End User Sites
(as described in Section 7.2);
. addition of new Equipment or Components or changes
of new Equipment or Components at an existing End
User Site (as described in Section 7.3;
. deletions of Components and/or Equipment (as
described in Section 7.4;
. movements of a Equipment within a End User Site
(same campus/same site or reclassification of the
site) (as described in Section 7.5);
. movements of Equipment between two End User Sites
(as described in Section 7.6); and
. upgrades of Components and Equipment (as described
in Section 7.7).
7.1.2 SITE PREPARATION
In accordance with Section 5, Clarent will be
responsible to advise its End Users of any preparations
that need to be made at the End User Site. Such
preparation activities may be recommended in a site
survey report provided by Equant.
In the event that the Equant Technician determines that
the End User Site is not appropriately prepared, and
the IMAC cannot take place, the Equant technician shall
immediately contact the (1) the Equant Program Manager,
(2) the CNCC and (3) the Clarent Program Manager, to
advise accordingly. Equant shall have no responsibility
to continue with the IMAC until Clarent advises Equant
that the End User Site has been properly prepared. If
the required preparation activities are required,
Equant may require that the IMAC activity be
rescheduled. If, as a result of such rescheduling,
Equant has to make more than one trip to the End User
Site, or has to remain on site to wait for the End User
Site to be appropriately prepared, the additional time
required will be billed at the applicable hourly rate
as detailed in Exhibit 2.
Equant will not be responsible for any failure to
complete an IMAC by the requested date, if such failure
is due to any cause beyond Equant's control, including
but not limited to, inability to gain access to the End
User Site as scheduled, failure by the local
telecommunications authority to complete installation
of data circuits, or End User's failure to prepare the
End User Site as required in the site survey report.
PAGE 11
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7.1.3 IMAC RESCHEDULING
In the event the requested date for performance of an
IMAC needs to be revised by Clarent, Clarent shall
provide at least five (5) business days advance written
notice of such revision. If the number of rescheduled
IMACs exceeds more than five (5) in any calendar month,
the Clarent Program Manager shall be required to
evaluate the reasons for the high reschedule rate and
take appropriate action to correct the problem.
7.1.4 CHARGES FOR IMACS
Unless otherwise agreed to between the Parties, the
charges for all IMACs described in this Article 7 are
set forth in Exhibit 2.
7.2 INSTALLATION
Equant shall install each Equipment for the applicable Site on
the date set forth in the Service Request and in accordance with
the requirements set forth below, provided the Equipment is on-
site and available for installation. In the event that Clarent
requests installation of Equipment in a in a country which is not
listed in Exhibit 2, such Services shall be deemed a New Service
in accordance with Section 3.3 of the Master Maintenance and
Support Services Agreement, Contract Number TM-3651, and Clarent
shall submit a request for pricing in accordance therewith.
7.2.1 EQUANT RESPONSIBILITIES
Equant shall:
. Provide its technicians with the appropriate
installation documentation for each Equipment
installation, including testing procedures and an
installation checklist for all Equipment and
cables (the "Installation Documentation"); a draft
of such Installation Documentation will be
delivered by Equant to Clarent no later than
fifteen (15) Business Days from the execution of
this for review, comments and approval.
. Confirm that the End User Site has been properly
prepared in accordance with the requirements
stated in the site survey form;
. Ensure that the Equipment has been delivered to
the End User Site;
. Arrive on-time to perform the installation;
. Unpack, inventory, and perform the activities to
install all Components or Equipment;
. Determine if wiring is in place between the
Equipment cabinet and the demarcation point, prior
to the start of the installation of Equipment;
. Interconnect the Equipment to the demarcation,
test all Equipment and provide the Clarent Program
Manager with the test results, and initiate turn-
up using information obtained from the
Installation Documentation;
. If Equant has procured, staged and shipped the
Equipment and/or Components, provide replacement
parts/units to remedy OBF situations or a
PAGE 12
<PAGE>
Equipment found inoperable during installation
(hereinafter "Defective Equipment"). If the
Defective Equipment cannot be repaired or Spares
are not available, Clarent will arrange for
immediate repair or replacement of the Defective
Equipment at no charge. Upon completion of repair
or replacement of a Defective Equipment, Equant
will complete the installation;
. Notify the CNCC immediately in the event any
problems occur during installation which adversely
affect the installation process;
. Commence Maintenance Services as of the date in
which the installation was completed and wired up.
7.2.2 CLARENT RESPONSIBILITIES
. Notify the Equant Program Manager if any of End
User timeframes for installation and support have
changed from the information contained in the
Service Request provided to Equant;
. Through the CNCC, provide telephone support to the
Equant technician for the purposes of problem
isolation and/or resolution, at no charge to
Equant;
. In the event End User cancels an installation
Service Request after the Equipment have been
delivered to Equant, Clarent shall immediately
advise Equant of the redeployment of the Equipment
for a different installation or if the Equipment
should be returned to Clarent. Clarent shall pay
all actual shipping costs plus a handling charge
of five (5)% to Equant.
7.3 INSTALLATION OF ADDITIONAL EQUIPMENT AND/OR COMPONENTS AT AN
EXISTING END USER SITE
Upon receipt and acceptance of a Service Request, Equant shall
install additional Equipment and/or Components at an existing End
User Site. The individual tasks required by the Parties are the
same as set forth in Section 7.2 of this Statement of Work.
7.4 DEINSTALLATION OF A WHOLE END USER SITE, OR EQUIPMENT AND/OR
COMPONENTS FROM A END USER SITE
As requested in a Service Request, Equant shall provide Services
for the deinstallation of an entire End User Site, or Equipment
and/or Components from a End User Site.
Equant will arrive at the End User Site, deinstall, and pack the
Equipment and/or Components for shipment or disposal. In the
event that Clarent requests that the Equipment and/or Components
be stored by Equant, Equant shall ship such Equipment and/or
Components to an Equant facility for storage, Clarent shall pay
all actual costs for packing materials, shipping and handling
plus a handling charge of five (5)% to Equant. Equant will store
the Equipment at a rate mutually agreed to between the Parties.
7.4.1 CLARENT RESPONSIBILITIES
Clarent shall be responsible to:
. Supply the Equant Program Manager with the exact
configuration of the End User Site being
deinstalled for establishing the correct packing
carton requirements at the local site;
PAGE 13
<PAGE>
. Provide shipping information and/or disposal
instructions;
. Provide local contact name, telephone number and
alternate contact information (if available);
. Arrange with local End User Site for storage and
shipment of boxes and Equipment.
7.4.2 EQUANT RESPONSIBILITIES
Equant shall be responsible to:
. Conduct a comprehensive inventory of the Equipment and
record model and serial numbers (the format shall be
determined and agreed to between the Parties prior to any
deinstallation);
. If the Equipment or Components to be deinstalled are to be
shipped from the End User Site, Equant shall:
. Ensure all packing materials are placed in the mutually
agreed local storage site, pending shipment in
accordance with Clarent instructions;
. Disconnect all cables from the Equipment, pack, and
label the boxes for shipping;
. Prepare all Equipment for shipping in accordance with
Clarent's instructions;
. Arrange for shipment of Equipment with local carriers.
. If the Equipment or Components to be deinstalled are to be
disposed of, Equant shall dispose of such Equipment and/or
Components in accordance with the disposal instructions
provided by Clarent;
. Notify the CNCC that the Clarent Site or the Equipment
and/or Components have been successfully deinstalled.
7.5 MOVEMENT OF EQUIPMENT WITHIN AN END USER SITE
All Equipment moves within an End User Site shall (i) require
performance of a site survey at the new End User Site, (ii)
deletion of the relevant Equipment from existing End User Site
and (iii) installation of the Equipment at the new End User Site.
The Parties' responsibilities regarding the activities for site
surveys, deletion and installation are set forth elsewhere in
this Statement of Work End User
Additional Clarent responsibilities shall include:
. Ensure that the new location is properly prepared in
accordance with the requirements of the site survey report
provided by Equant;
. Provide the necessary documentation with the specifics for
the Equipment move, including addresses;
. Provide local contact name, telephone number, and alternate
contact information (if
PAGE 14
<PAGE>
available) at the original Site and the new End User Site;
7.6 MOVEMENT OF EQUIPMENT BETWEEN SITES
Movement of Equipment between End User Sites will be treated as a
complete deinstallation of the original End User Site requiring
an inventory of the Equipment, performance of a site survey at
the new End User Site, and complete installation at the new End
User Site in accordance of the procedures set forth in Sections
4, 7.2 and 7.4.
7.7 MODIFICATIONS AND UPGRADES OF EQUIPMENT
Clarent shall notify Equant of any engineering changes, upgrades,
modifications, enhancements, or any other changes relevant to
servicing, operating or enhancing the Equipment and/or
Components. Unless otherwise agreed to between the Parties,
staging, installation and maintenance of enhancements,
Engineering Change Orders ("ECOs") and changes required by a
governmental or regulatory entity for product safety reasons
("Safety Changes") (collectively "Equipment Changes") shall be
performed at Equant's current hourly labor rate. The inclusion of
such Equipment Changes will be reflected by an amendment to this
Statement of Work.
7.7.1 Clarent will supply all necessary Components for any
Equipment Changes at no charge to Equant. Equant shall
arrange to receive the these Components for the
Equipment Changes. Equant shall install equipment
Changes in an agreed-upon time frame, or during on-site
Maintenance Services activities.
7.7.2 All ECOs and Safety Changes shall be coordinated be the
Equant Program Manager with the CNCC and the Clarent
Program Manager.
SECTION 8. - TECHNICAL SUPPORT
8.1 HARDWARE TECHNICAL SUPPORT
Clarent will provide a second level support mechanism for the
Equant Technicians, which will be available to provide such
support by telephone, twenty-four (24) hours per day, seven (7)
calendar days per week (Monday - Sunday, fifty-two (52) weeks per
year, including holidays). Such support shall include assisting
the Equant Technician through diagnostics and troubleshooting to
identify and resolve hardware problems the technician is not
otherwise able to resolve.
8.2 ESCALATION PROVISIONS
Within fifteen (15) calendar days from the execution of this
Statement of Work, the Parties shall mutually agree upon
appropriate escalation procedures in the event Equant's normal
maintenance procedures fail to restore the Equipment to Proper
Operational Condition in accordance with the Service Levels set
forth in Section 11.
SECTION 9. - REPORTING
Equant shall issue reports concerning the Services which have been
provided. The Parties agree that all reports generated by Equant shall be
in written and electronic format. All reports shall be kept confidential by
Clarent and the Parties shall use such reports for internal analysis only.
These reports may include, by way of example, Spares inventory, Clarent
Site inventory, activity history by Clarent Site/region/global.
PAGE 15
<PAGE>
SECTION 10. - OPERATIONAL PROJECT REVIEWS
Clarent and Equant will conduct the project reviews listed in Table
10.1 below during the term of this Statement of Work unless rescheduled
or terminated by mutual agreement of the Parties. The purpose of the
reviews is to facilitate the regular exchange of information between
the Parties and provide a forum for the identification, escalation and
resolution of issues affecting the performance of Services. Clarent and
Equant will identify the specific personnel to chair these reviews, as
well as any invited Equant or Clarent personnel.
TABLE 10.1 - PROJECT, REVIEW SCHEDULE
---------------------------------------------------------------------------------------------------------------------
Review Purpose Interval Participants
---------------------------------------------------------------------------------------------------------------------
General Review To review overall performance, Monthly, for the initial Clarent: (to be identified)
Meetings identify major issues, develop four (4) months after
corrective action plans, execution of Statement of Equant: (to be identified)
discuss general business Work, Quarterly, thereafter.
forecasting and strategy. Vendor Partners when required
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
Performance Review operational performance Monthly, commencing with Clarent Program Manager
Operations against established SLAs; the implementation of the
identify and implement required first End User Site and Equant Program Manager
corrective actions; review continuing through the term
operational status of sparing of this Statement of Work
implementation.
---------------------------------------------------------------------------------------------------------------------
SECTION 11.- SERVICE LEVELS AND PERFORMANCE
11.1 RESPONSE TIMES AND TIME TO REPAIR
Equant is required to arrive at the End User Site within the
stated Response Time as noted in Exhibit 1 and the repair of
Equipment is expected to be no more than three (3)* hours after
arrival at site unless otherwise specified in Exhibit 1.
11.1.1 In the event Equant fails to repair a Component or
unit of Equipment within the stated Time To Repair as
stated in Section 11.1 or as otherwise specified in
Exhibit 8, then such event shall be accepted as one
occurrence of non or substandard performance.
11.1.2 Equant agrees it will meet the required Time To
Repair standards, as stated in Section 1 t.1 or as
otherwise specified in Exhibit 8, for each ninety
(90) day period, effective from the first failure to
meet obligations as stated, for all End User Sites
covered by this Statement of Work on a ninety (90%)
percent of all Fault Calls for the term of this
Statement of Work. 11.2 Exceptions to Performance
Standard Measurements
11.2 EXCEPTIONS TO PERFORMANCE STANDARD MEASUREMENTS
11.2.1 Equant performance of its obligations under this
Statement of Work shall only be measured for
Maintenance Services as provided under Section 6 of
this Statement of Work; and
11.2.2 Equant shall only be measured on such Fault Calls
where the CNCC has been able to diagnose the Fault to
the Component level which is not in Proper
PAGE 16
<PAGE>
Operational Condition; however, such inability to
diagnose a Fault to Component level shall not
interfere with Equant's responsibility to respond to
that Fault Call; and
11.2.3 Equant shall only be measured on such Fault Calls
where the CNCC has accurately diagnosed the Fault.
IN WITNESS WHEREOF, the duly authorized representatives of the Parties have
executed this Statement of Work as of the last date set forth below.
ACCEPTED BY: AGREED TO:
EQUANT INTEGRATION SERVICES, INC. CLARENT CORPORATION
BY: /s/ Richard H. Blausteim BY: /s/ Ilene Harding
------------------------ -----------------
NAME: Richard H. Blausteim NAME: Ilene Harding
TITLE: CEO, North America TITLE: Director, World Wide Contracts
DATE: 12/30/98 DATE: 12/30/98
-------- --------
PAGE 17
<PAGE>
EXHIBIT I - END USER SITE AND EQUIPMENT LIST
TO BE PROVIDED WITHIN TEN (10) BUSINESS DAYS FROM EXECUTION OF THIS STATEMENT OF
WORK
PAGE 18
<PAGE>
EXHIBIT 2 - SERVICES LIST AND PRICING
PRICE SUMMARY NAM LAM 1 LAM 2 ASIA 1 ASIA 2
------------------
Maintenance: NBH $331.00 $301.00 $259.00 $329.00 $269.00
GSC Remote Support inc inc inc inc Inc
Maintenance 24x7 $496.50 $451.50 $388.50 $493.50 $403.50
(Premium + Ultra)
ASIA 3 EUMA 1 EUMA 2 EUMA 3 EUMA 4
Maintenance: NBH $227.00 $363.00 $327.00 $291.00 $219.00
GSC Remote Support inc inc inc inc inc
Maintenance 24x7 $340.50 $544.50 $490.50 $436.50 $328.50
(Premium + Ultra)
1. Prices assume sites are within fifty (50) kilometers of the nearest Equant
Service Center outside of the United States and within fifty (50) miles of
the nearest Equant Service Center within the United States, the following
coefficients will apply for sites in excess of this distance:
---------------------------------------------------
0km - 50km 1.00
---------------------------------------------------
less than 50km - 100km 1.50
---------------------------------------------------
less than 100km - 200km 1.75
---------------------------------------------------
less than 200km On request
Excluding travel cost for boat, train, and airfare, plus hotel expenses
(customer approval required).
2. Preventive maintenance will be limited to one call per year, which may be
revised by the Parties upon mutual agreement.
3. For pricing purposes, it should be assumed that the gateways are generally
under 30 ports and therefore single processor machines.
Regional Banding
NAM Canada, USA
LAM 1 Argentina, Brazil
LAM 2 Chile, Mexico, and Venezuela
ASIA 1 Japan
ASIA 2 Australia, China, Hong Kong, Indonesia, New Zealand, Singapore
ASIA 3 Malaysia, South Korea, Taiwan, Thailand, Vietnam
EUMA 1 Austria, France, Germany, Switzerland, UK
EUMA 2 Belgium, Denmark, Italy, Netherlands, Norway, Sweden
EUMA 3 Finland, Portugal, Saudi Arabia, Spain
EUMA 4 Egypt, Greece, Iran, Ivory Coast, Lebanon, Russia, Senegal,
South Africa, Syria
PAGE 19
<PAGE>
EXHIBIT 3 - EQUANT CUSTOMER CARE CENTERS AND CLARENT NETWORK CONTROL CENTER
The Clarent support center will notify the Equant Integration Services support
center in Maidenhead, UK for coordinating and dispatch of Engineers via a phone
notification. Optionally and for a potential future additional cost to Clarent,
the Clarent Support center may be linked to the Equant Integration Services
support center in Maidenhead, UK for coordinating and dispatch of Engineers.
PAGE 20
<PAGE>
EXHIBIT 4 - DELIVERABLES
-----------------------------------------------------------------------------------------------------------------
DELIVERABLE RESPONSIBLE DELIVERY TIME SECTION
PARTY REFERENCE
-----------------------------------------------------------------------------------------------------------------
Appointment of Program Managers Equant and Upon execution of this Statement of Work. 3.1
Clarent
-----------------------------------------------------------------------------------------------------------------
Transition Plan Equant and Within sixty (60) calendar days from 3.2
Clarent execution of this Statement of Work
-----------------------------------------------------------------------------------------------------------------
Lead time commencement of Clarent Reasonable time to deploy spares 3.6
maintenance for new Equipment consigned by Clarent, or acquired by types
Equant where Clarent cannot legal consign.
-----------------------------------------------------------------------------------------------------------------
Completion of Training Equant and At least ten (10) business day prior to 3.7
Clarent commencement of Services
-----------------------------------------------------------------------------------------------------------------
Site Survey Form Completed Equant Ten (10) Business Days from completion 4.1.1, 4.2.1
of site survey
-----------------------------------------------------------------------------------------------------------------
Fault Call Reporting Procedures Equant and Within fifteen (15) Business Days from 6.2
Clarent execution of this Statement of Work
-----------------------------------------------------------------------------------------------------------------
Clarent's Network Control Center Clarent Upon execution of this Statement of Work 6.2.4
Telephone Number
-----------------------------------------------------------------------------------------------------------------
Installation Documentation Form Equant and Within fifteen (15) Business Days from 7.2.2
Clarent execution of this Statement of Work
-----------------------------------------------------------------------------------------------------------------
Escalation Procedures Equant and Within fifteen (15) Business Days from 8.2
Clarent execution of this Statement of Work
-----------------------------------------------------------------------------------------------------------------
Report Form and Contents Equant and Within fifteen (15) Business Days from 9
Clarent execution of this Statement of Work
-----------------------------------------------------------------------------------------------------------------
List of Equipment and End User Sites Clarent Within ten (10) Business Days from Exhibit 1 to
execution of the Statement of Work the Statement
of Work
-----------------------------------------------------------------------------------------------------------------
Spare Parts Plan Equant and Within ten (10) Business Days from Exhibit 1 to
Clarent execution of the Statement of Work the Statement
of Work
-----------------------------------------------------------------------------------------------------------------
Transition Plan Equant and Within ten (10) Business Days from Exhibit 1 to
Clarent execution of the Statement of Work the Statement
of Work
-----------------------------------------------------------------------------------------------------------------
Second Level Support Requirements Equant and Within ten (10) Business Days from Exhibit 8 to
Clarent Execution of this Statement of Work. the Statement
of Work
-----------------------------------------------------------------------------------------------------------------
Travel Expense Policy Clarent Upon execution of this Statement of Work 4.4 of Master
Maintenance
and Support
Services
Agreement
-----------------------------------------------------------------------------------------------------------------
Equipment Shipment Forecast for Clarent Upon execution of this Statement of Work 3.2 of the
1998 Master
Maintenance
and Support
Services
Agreement
-----------------------------------------------------------------------------------------------------------------
PAGE 21
<PAGE>
EXHIBIT 5 - SPARE PARTS PLAN
TO BE PROVIDED WITHIN TEN (10) BUSINESS DAYS FROM EXECUTION OF THIS STATEMENT OF
WORK
PAGE 22
<PAGE>
EXHIBIT 6 - TRANSITION PLAN
TO BE PROVIDED WITHIN TEN (10) BUSINESS DAYS FROM EXECUTION OF THIS STATEMENT OF
WORK
PAGE 23
<PAGE>
EXHIBIT 7 - EQUANT HOLIDAY SCHEDULE
ARGENTINA
New Year's Day January 1
Labor Day May 1
Anniversary of May Revolution May 25
Malvinas Day Monday closest to June 10
Flag Day Monday closest to June 20
Independence Day July 9
Death of General Jose de San Martin August 17
Columbus Day October 12
Christmas Day December 25
Good Friday April 10
Easter April 12
CHINA
New Year's Day January 1
Chinese New Year January 28
Labor Day May 1
National Day October 1
COLUMBIA
New Year's Day January 1
Epiphany January 6
San Jose March 19
Labor Day May 1
St. Peter and Paul Day June 29
Independence Day July 20
Battle of Boyaca August 7
Assumption August 15
Dia de la Raza October 12
All Saints Day November 1
Cartegena Independence Day November 11
Immaculate Conception December 8
Christmas Day December 25
BAHRAIN
New Year's Day January 1
Eld Al Fitr January 30
Eld Al Adha April 8
Islamic New Year April 28
Ashoora May 7
Prophet's Birthday July 17
National Day December 16
BELGIUM
New Year's Day January 1
Easter Monday April 13
Labor Day May 1
Ascension May 21
Pentecost May 31
Whit Monday June 1
Dutch Holiday July 11
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<PAGE>
National Holiday July 21
Assumption August 15
French Holiday September 27
Alt Saints Day November 1
Veteran's Day November 11
Christmas Day December 25
UNITED KINGDOM
New Year's Day January 1
Bank Holiday (Scotland only) January 2
St. Patrick's Day (Northern Ireland only) March 17
Good Friday April 10
Easter Monday April 13
May Day Bank Holiday First Monday in May
Bank Holiday Last Monday in May
Battle of the Boyne Day (Northern Ireland only) July 12
Summer Bank Holiday (Scotland only) First Monday in August
Summer Bank Holiday (England and Northern Ireland) Last Monday in August
Christmas Day December 25
Boxing Day December 26
SOUTH AFRICA
New Year's Day January 1
Human Rights Day March 21
Family Day April 8
Freedom Day April 27
Workers Day May 1
Youth Day June 16
Public Holiday Third Monday in June
Women's Day August 9
Heritage Day September 24
Day of Reconciliation December 16
Christmas Day December 25
Day of Goodwill December 26
SAUDI ARABIA
Eld Al Fitr December 20
Eld Al Adha April 8
ECUADOR
HONG KONG
New Year's Day January 1
Lunar New Year February 28
Ching Ming Festival April 5
Good Friday April 10
Easter Monday April 13
Tuen Ng Festival June 28
SAR Establishment July 1
Victory Day
Day Following Mid Autumn Festival October 6
Chung Yeung Festival October 19
National Day
PAGE 25
<PAGE>
Christmas Day December 25
INDONESIA
New Year's Day January 1
Hari Raya Puasa January 30
Haft Raya Haji April 8
Good Friday April 10
Icaka New Year
Islamic New Year April 25
Weisek Day May 5
Ascension May 21
Prophet's Birthday July 7
Ascension of the Prophet
Christmas Day December 25
NEW ZEALAND
New Year's Day January 1
Waitangi Day February 6
Good Friday April 10
Easter Monday April 13
ANZAC Day April 25
Queen's Birthday First Monday in June
Labor Day Fourth Monday in October
Christmas Day December 25
Boxing Day December 26
SINGAPORE
New Year's Day January 1
Chinese New Year February 28
Hari Raya Puasa January 30
Labor Day May 1
Good Friday April 10
Hari Raya Haji April 8
Vesak May 21
National Day August 1
Depavali October 19
Christmas Day December 25
SRI LANKA
Tamil Thai Pongal January 14
Eid ul Fitr January 30
National Day February 4
Mahashivaratri or Shivaratri March 7
Eld ul Adha April 8
Good Friday April 10
Sihala/Tamil New Year's Eve April 12
Sihala/Tamil New Year's Day April 13
Heroes Day April 22
Prophet's Birthday July 7
May Day May 1
Special Bank Holiday June 30
Deepavali October 19
Christmas Day December 25
Special Bank Holiday December 31
PAGE 26
<PAGE>
THAILAND
New Year's Day January 1
Makha Bucha Day February 21
Chakri Day April 6
Songkran Festival/Family Day April 12- 14
Labor Day May 1
Coronation Day May 5
Ploughing Ceremony May 9
Visakha Bucha Day May 20
Mid Year Day July 1
Asarnha Bucha Day July 19
Khao Phansa Day July 20
Queen's Birthday August 12
Chulalongkorn Day October 23
King's Birthday December 5
Constitution Day December 10
New Year's Eve December 31
MACAU
New Year's Day January 1
Chinese New Year January 38
Cheng Ming April 5
Good Friday April 10
Anniversary of the Portuguese Revolution April 25
Labor Day May 1
Feast of Tun Ng May 30
Camoes Day and Portuguese Communities Day June 10
Feast of St. John Baptist June 24
National Day October 1
Portuguese Republic Day/Mid Autumn Festival October 5
Day Following Mid-Autumn Festival October 6
All Souls Day November 2
Restoration of Independence December 1
Feast of the Immaculate Conception December 8
Winter Solstice December 22
Christmas Eve December 24
Christmas Day December 25
INDIA
Republic Day January 26
Eid ul Fitr January 30
Holi March 13
Good Friday April 10
Sri Rama Navami April 16
Mahavir Jayanthi April 20
Buddha Purnima May 22
Hrishna Janamashti August 25
Independence Day August 15
Mahatma Gandhi's Birthday October 2
Dussehra (Vijaya Dashmi) October 11
Deepavali October 19
Guru Nanak's Birthday November 4
Christmas Day December 25
PAGE 27
<PAGE>
JAMAICA
New Year's Day January 1
Labor Day Late May
Independence Day First Monday in
August
National Heroes' Day Mid October
Christmas Day December 25
Boxing Day December 26
Ash Wednesday February 25
Good Friday April 10
Easter Monday April 13
MOROCCO
New Year's Day January 1
Independence Manifesto Day January 11
Eid Al Fitr January 30
National Day March 3
Eid At Adha April 8
Islamic New Year April 28
Labor Day May 1
National Day May 23
Prophet's Birthday July 7
King Hassan's Birthday July 9
Reunification Day August 14
King's and People's Revolution Day August 20
Anniversary of the Green March November 6
Independence Day November 18
PANAMA
New Year's Day January 1
Martyr's Day January 9
Labor Day May 1
Anniversary of the Founding of Panama City August 15
Anniversary of Separation from Columbia November 3
Flag Day November 4
Colon Day (Colon Only) November 5
Anniversary of the First Call for Independence in Los November 10
Santos
Anniversary of Independence from Spain November 29
Mothers' Day December 8
Christmas Day December 25
Carnival February 22 - 23
Good Friday April 10
PARAGUAY
New Year's Day January 1
Holy Thursday April 9
Good Friday April 10
Labor Day May 1
Heroes' Day March 1
Independence Day May 15
Chaco Armistice June 12
Founding of Asuncion August 15
Immaculate Conception December 8
PAGE 28
<PAGE>
Christmas Day December 25
PERU
New Year's Day January 1
Holy Thursday April 9
Good Friday April 10
Labor Day May 1
Independence Day May 15
St. Peter and St. Paul June 29
Independence Day Celebrations July 28-29
St. Rosa of Lima August 30
Battle of Angamos October 8
All Saints Day November 1
Immaculate Conception December 8
Christmas Day December 25
PHILIPPINES
New Year's Day January 1
Day of Valor April 9
Holy Thursday April 9
Good Friday April 10
Labor Day May 1
Independence Day June 12
Manila Day June 23
All Saints Day November 1
Bonifacio Day November 30
Christmas Day December 25
Public Holiday December 26
Rizal Day December 30
TRINIDAD
New Year's Day January 1
Arrival Day May 30
Labor Day June 19
Emancipation Day August 1
Independence Day August 31
Republic Day September 24
Christmas Day December 25
Boxing Day December 26
Eid Ul Fitr January 30
Carnival February 23 - 24
Good Friday April 10
Easter Monday
TUNISIA
New Year's Day January 1
Revolution Day January 18
Eid Al Fitr January 30
Independence Day March 20
Youth Day March 21
Martyrs' Day April 1
Eid Al Adha April B
Islamic New Year April 28
Labor Day May 1
PAGE 29
<PAGE>
Prophet's Birthday July 7
Republic Day July 25
Women's Day August 13
Celebration of September 4, 1934 September 3
Evacuation Day October 15
Commemoration Day November 7
UNITED ARAB EMIRATES
New Year's Day January 1
Eid At Fitr January 30
Eid Al Adha April 8
Islamic New Year April 28
Prophet's Birthday July 7
H.H. Sheikh Zayed Bin Sultal Al Nahyan's Accession Day August 6
Lailat al Mirah November 17
National Day December 6
PAGE 30
<PAGE>
EXHIBIT 8 - FAULT CALL HANDLING
Call Tracking
All calls into the Equant Global Support Center ("GSC") will be tracked using a
relational database. Monthly report will be generated by Equant to document the
key matrix, the form of which shall be defined in the transition plan.
CALL ESCALATION
Equant will escalate Fault Calls to Clarent Technical Support Help Desk using
the Clarify Front Office client application, provided by Clarent.
[_] Call answered within two (2) minutes on problem reporting.
[_] Call back within fifteen (15) minutes upon receipt of voice mail
message.
[_] On-Site response time is within four (4) hours of receiving customer
call (provided customer equipment site is within 50 miles (U.S.) or
fifty (50) kilometers (all other countries) of an Equant Service
Center).
[_] Equant shall use best effort to arrive on site within the following
times:
. 0-50 Km 4 hours
. 51-100 Km 6 hours
.. 100 Km 8 hours
REMOTE SOFTWARE ASSISTANCE
[_] Provide solution for reported software problem. (By Clarent Technical
Support Help Desk)
[_] Provide guidance in locating information within the documentation for
procedures that will resolve the problem. (By Equant)
[_] Provide temporary workaround procedures to circumvent a problem until a
fix/patch/update is available. (By Equant according to technical
bulletin from Clarent)
[_] Assist in downloading software fixes, patches or upgrades from Clarent
electronic database. (By ElS according to technical bulletin from
Clarent)
SOFTWARE UPDATE INSTALLATION ASSISTANCE
[_] Assistance in inquiries to software update questions.
[_] Operational support during installation of software update.
[_] Problem resolution support should problems occur while installing the
update.
SECOND LEVEL SUPPORT
[_] TO BE PROVIDED WITHIN TEN (10) BUSINESS DAYS AFTER EXECUTION OF THIS
STATEMENT OF WORK.
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