EXHIBIT 10.1
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MASTER PURCHASE AND LICENSE AGREEMENT
This Master Purchase and License Agreement is made as of September 30,
1996, by and between CELLULAR TECHNICAL SERVICES COMPANY, INC., a Delaware
corporation ("CTS"), and GTE MOBILNET OF CALIFORNIA LIMITED PARTNERSHIP, a
Delware limited partnership on its own behalf and on behalf of the entities
listed in the attached SCHEDULE C ("Customer"). In consideration of the
mutual promises and covenants contained herein and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
mutually acknowledged, CTS and Customer hereby agree as follows:
1. DEFINITIONS. Whenever used in this Agreement, the following
terms shall have the following meanings:
1.1 "Acceptance Test Plan" means the CTS standard form of
Acceptance Test Plan set forth in the attached SCHEDULE E.
1.2 "Agreement" means this Master Purchase and License Agreement
and the attached Schedules, together with all amendments and supplements which
may be made thereto from time to time.
1.3 "Customer Facility" means each MTSO, Cell Site, or other
location within a Licensed Market at which any Component of a System is
installed or to be installed under this Agreement.
1.4 "Cell Site" means a cellular radio base station location
consisting of radio, antenna, and power equipment: (i) which provides cellular
telecommunications service to a particular geographic area; (ii) in which
certain Components of a System are installed in accordance with this Agreement
and an applicable Market Purchase Agreement; (iii) which complies with the
Infrastructure and Environmental Requirements; and (iv) in which a direct
antenna frame hook-up is provided by Customer for the Cell Site System Hardware
installed therein.
1.5 "Component" means an individual item of the Hardware or
Licensed Programs.
1.6 "Confidential Information" shall have the same meaning
ascribed to such term in the Nondisclosure Agreement.
1.7 "Customization" means any modification, enhancement, or
improvement to any Licensed Program that is made by CTS at Customer's request in
accordance with this Agreement, and which is not made generally commercially
available by CTS to other cellular carrier licensees in the United States.
1.8 "Documentation" means CTS's standard user manual(s) for a
System and all other written explanatory documentation for a System which CTS
furnishes to Customer for purposes of this Agreement (as the same may be
reasonably modified or updated from time to time by CTS with notice to
Customer). Documentation may include, if applicable, documentation provided to
CTS by its suppliers or licensors to the extent CTS is authorized by them to
provide such documentation to Customer under this Agreement.
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1.9 "Fees" means the monies required to be paid by Customer to
CTS under this Agreement, including without limitation charges for Hardware,
Licensed Programs, out-of-pocket reimbursable expenses, and any other charges
for goods and/or services provided by CTS in connection with this Agreement.
1.10 "Hardware" means the following with respect to the System
installed or to be installed in a given Licensed Market: (i) the computer
equipment and peripherals (including any operating system software bundled with
such equipment as supplied by the equipment manufacturer) described in the
applicable Market Purchase Agreement for such System in such quantities as CTS
and Customer agree are necessary to operate the initial configuration of such
System; and (ii) any additional computer equipment and peripherals as CTS and
Customer may, from time to time, agree in writing to add to such System as
Hardware.
1.11 "Implementation Schedule" means each mutually acceptable
schedule showing the time periods during which CTS and Customer will cause
appropriate persons to begin and complete delivery, installation, and acceptance
testing of particular Components for a System.
1.12 "Infrastructure and Environmental Requirements" means the
physical, electrical, connectivity, and other infrastructure and environmental
requirements described in Documentation furnished by CTS to Customer (as the
same may be reasonably modified or updated from time to time by CTS with notice
to Customer), which requirements are to be satisfied by Customer at each
Customer Facility in accordance with this Agreement.
1.13 "Intellectual Property Rights" means any valid patent,
copyright, trade secret, trademark, or other intellectual property right.
1.14 "License" means the license granted to Customer under
Subsection 2.1, below.
1.15 "Licensed Programs" means the following with respect to
the System installed or to be installed in a given Licensed Market: (i) the
CTS-owned computer software (including firmware and patches), in object code
form only, and the Third-Party Software, in object code form only, described
in the applicable Market Purchase Agreement for such System; (ii) all New
Releases, Maintenance Releases, and Customizations provided by CTS to
Customer for such System; and (iii) any additional software, data tables, and
programs as CTS and Customer may, from time to time, agree in writing to add
to such System as Licensed Programs.
1.16 "Licensed Market" means: (i) the aggregate of the market
areas identified in the attached SCHEDULE C; and (ii) any additional area as CTS
and Customer may, from time to time, agree in writing to add to this Agreement
as a Licensed Market.
1.17 "Maintenance Release" means a correction of errors, bugs, or
defects in the Licensed Programs which is made generally commercially available
by CTS to its cellular carrier licensees in the United States, and may also
include, at CTS's discretion, any minor modification, enhancement, or
improvement to the Licensed Programs.
1.18 "Market Purchase Agreement" means the agreement between CTS
and Customer specifying the pricing, sizing, configuration, and Customer's
election of available options for the initial System within each Licensed Market
and/or for an expansion of such System. Such agreement
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shall be based on the CTS standard form Market Purchase Agreement (as the
same may be reasonably modified or updated from time to time by CTS with
notice to Customer).
1.19 "Mobile Telephone Switching Office" or "MTSO" means an
automatic system which constitutes the interfaces for user traffic between a
cellular network and other public switched networks or other mobile telephone
switching offices within the same network or a central control center for mobile
telephone switching centers.
1.20 "New Release" means any computer program or portion thereof
which involves any modification, enhancement, or improvement to any Licensed
Programs that is: (i) made generally commercially available by CTS to its
cellular carrier licensees in the United States; (ii) identified by CTS as
either a "major" or "minor" new release; and (iii) not merely a Maintenance
Release.
1.21 "Nondisclosure Agreement" means that certain Nondisclosure
Agreement dated as of August 29, 1995, between CTS and Customer with respect to
the protection and security of the Confidential Information of CTS and Customer,
together with all amendments and supplements which may be made to such
Nondisclosure Agreement from time to time. A copy of the Nondisclosure
Agreement is attached hereto as SCHEDULE H.
1.22 "Roaming Service Agreement" means that certain Service
Agreement for Real-Time Prevention of Roaming Cloning Fraud dated as of the date
of this Agreement between CTS and Customer.
1.23 "Specifications" means the functional specifications for a
System as set forth in the attached SCHEDULE D.
1.24 "Support Services Agreement" means that certain Support
Services Agreement dated as of the date of this Agreement between CTS and
Customer.
1.25 "System" shall mean the combination of the Hardware and
Licensed Programs configured and installed for use by Customer within a
designated Licensed Market in accordance with the terms of this Agreement and an
applicable Market Purchase Agreement.
1.26 "Third Party" means any person or entity other than CTS or
Customer.
1.27 "Third-Party Software" means the following with respect to a
given System: (i) the computer programs described in the applicable Market
Purchase Agreement which are licensed to CTS by Third Parties and which CTS
sublicenses to Customer, in object code form only, as part of the Licensed
Programs, but for which CTS has no source code rights; and (ii) any additional
software, data tables, and programs as CTS and Customer may, from time to time,
agree in writing to add to such System as Third-Party Software.
2. LICENSE OF SOFTWARE.
2.1 GRANT OF LICENSE. Subject to the terms of this Agreement,
CTS hereby grants to Customer a non-exclusive, non-transferable license (the
"License") to use the Licensed Programs and Documentation for the purpose of
operating a System for its intended use, as described in the Specifications,
within each Licensed Market. The term of the License granted above [*] Licensed
Programs and Documentation licensed and furnished hereunder for the purpose of
operating Systems
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installed prior to the expiration or termination of this Agreement, subject
to continued payment by Customer of all Fees as required by this Agreement
and subject to the terms of Subsection 14.3, below.
2.2 LICENSE LIMITATIONS.
2.2.1 The License sets forth the entirety of Customer's
rights in connection with the Licensed Programs and Documentation and all
Intellectual Property Rights in connection with the Licensed Programs and
Documentation. Accordingly, Customer shall not: (i) use the Licensed Programs
or Documentation for any purpose other than as expressly set forth in Subsection
2.1, above; or (ii) permit any Third Party to use or have access to any Licensed
Programs or Documentation without the express prior written approval of CTS
(except for those officers, directors, employees, or agents of Customer who have
signed confidentiality agreements with CTS or for whom Customer is responsible
under the Nondisclosure Agreement).
2.2.2 Without limiting the generality of the foregoing,
Customer shall not directly or indirectly do any of the following (except as
expressly set forth in this Agreement or other written agreement between CTS and
Customer): (i) sublicense any rights under the License; (ii) print or copy the
Licensed Programs, other than such number of back-up copies as authorized by CTS
in the Documentation for use solely by Customer in accordance with this
Agreement; (iii) print or copy the Documentation, other than copies for use
solely by Customer in accordance with this Agreement and in accordance with the
confidentiality provisions of the Nondisclosure Agreement; (iv) modify or
prepare derivative works of the Licensed Programs or Documentation; (v) reverse
engineer, decompile, disassemble, or otherwise create, or attempt to create, or
assist others to create, the source code form of any Licensed Programs or a
product functionally equivalent to the System or any Licensed Programs, unless
created without the use of any Licensed Programs or other Confidential
Information of CTS; or (vi) remove, obscure, or alter any Intellectual Property
Right or confidentiality notices or legends appearing in or on any Licensed
Programs or Documentation. In addition, with respect to the notices and legends
described above, Customer shall: (a) ensure that each copy or reproduction of
all or any portion of the Licensed Programs or Documentation includes all such
notices and legends; and (b) upon CTS's reasonable prior written notice, provide
CTS with reasonable access to Customer's records and facilities for the limited
purpose of auditing and verifying Customer's compliance with the terms of this
Subsection 2.2.2.
2.3 NEW RELEASES, MAINTENANCE RELEASES, AND CUSTOMIZATIONS.
2.3.1 NEW RELEASES. After the initial installation of a
System within a given Licensed Market, CTS will provide all New Releases for
such System to Customer [*], so long as Customer continuously purchases for such
System the software subscription services described in the Support Services
Agreement and Customer is not in breach or default under this Agreement or the
Support Services Agreement. Otherwise, CTS, in its discretion, may provide New
Releases for such System to Customer on such terms and conditions and for such
Fees as the parties may mutually agree to in writing. The parties acknowledge
that New Releases may require the purchase of new or additional hardware or
software.
2.3.2 MAINTENANCE RELEASES. After the initial
installation of a System within a given Licensed Market, CTS will provide all
Maintenance Releases for such initial System to Customer [*], so long as
Customer continuously purchases for such System the basic support services
offered pursuant to the Support Services Agreement and Customer is not in breach
or default under this Agreement or the Support Services Agreement. Otherwise,
CTS, in its discretion, may provide
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Maintenance Releases for such System to Customer on such terms and conditions
and for such Fees as the parties may mutually agree to in writing.
2.3.3 CUSTOMIZATIONS. Customer may, from time to time,
wish to have certain features of the Licensed Programs customized to its
specifications. CTS shall have the exclusive right to make and deliver such
Customizations. Any work performed to make Customizations shall be on such
terms, conditions, and procedures and for such fees as CTS and Customer may
mutually agree to in writing. The parties agree that the provisions of this
Subsection do not restrict the rights of Customer to develop and make
applications to interface with CTS products on terms, conditions, and procedures
and for fees as the parties may mutually agree to in writing.
3. SUPPLY OF HARDWARE.
3.1 FROM CTS. Subject to the terms of this Agreement, CTS
hereby agrees to sell, and Customer hereby agrees to buy, the Hardware described
in the applicable Market Purchase Agreement for a given System in such
quantities as CTS and Customer agree are necessary to operate such System.
3.2 FROM THIRD PARTIES. Notwithstanding Subsection 3.1,
above, Customer may purchase quantities of the CTS-certified Hardware
specified in the attached SCHEDULE B either from CTS or Third Parties
approved in advance and in writing by CTS, subject to the terms of this
Agreement. CTS-certified Hardware purchased from Third Parties will be
subject to an integration Fee as specified in the attached SCHEDULE A. CTS
may, from time to time, update the list of CTS-certified Hardware specified
in SCHEDULE B with written notice to Customer. Except as specifically set
forth herein, CTS shall have no liability with respect to any Hardware
components supplied by any person or entity other than CTS.
4. SYSTEM DEPLOYMENTS.
4.1 COMMITMENTS FOR SYSTEM DEPLOYMENTS.
4.1.1 MINIMUM COMMITMENT. As partial consideration for
[*], as set forth in the [*], Customer hereby commits to purchase from CTS such
quantities of Components such that the aggregate size of all Systems within the
Licensed Markets shall be [*]. If Customer does not purchase from CTS such
minimum quantities of Components on or before [*], then CTS may, at its election
and upon written notice to Customer, [*] granted by CTS to Customer with respect
to [*].
4.1.2 FORECASTS. As of the date of this Agreement, and
at the end of each calendar quarter during the term of this Agreement, Customer
will provide CTS with a written rolling forecast of Customer's estimated
purchases of Components hereunder (both in terms of Cell Site expansion and
dollar value) for the ensuing twelve-month period. ALL FORECASTS ARE FOR
PLANNING PURPOSES ONLY AND ARE NON-BINDING. All forecasts shall be made in good
faith and reflect Customer's best estimates after due consideration. All
purchases hereunder shall be made only pursuant to mutually acceptable Market
Purchase Agreements, as described in Subsection 4.2, below.
4.2 SYSTEM DEPLOYMENTS IN GENERAL. The parties hereby agree
that the initial System in a given Licensed Market, and each expansion of such
System, will be deployed for commercial use pursuant to the terms and conditions
of this Agreement and a Market Purchase
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Agreement for such Licensed Market. Each Market Purchase Agreement must be
executed by an authorized representative of Customer and an officer of CTS at
the vice president level or higher. Each System deployment shall: (i)
consist of the combination of the Hardware and Licensed Programs identified
in the applicable Market Purchase Agreement; (ii) be installed at the
Customer Facilities and in accordance with the Implementation Schedule
identified in the applicable Market Purchase Agreement; (iii) be supported
pursuant to the support services options selected by Customer in the
applicable Market Purchase Agreement; (iv) be subject to the Fees and payment
terms set forth in Section 9, below, and in the attached SCHEDULE A; and (v)
be subject to acceptance testing in accordance with Section 7, below, and the
Acceptance Test Plan set forth in the attached SCHEDULE E.
4.3 GOVERNING TERMS. This Agreement shall govern all terms of
the license of Licensed Programs and sale of Hardware from CTS, except as set
forth in the applicable Market Purchase Agreement. In no event shall any terms
and conditions of any other document alter or amend any provision of this
Agreement, the applicable Market Purchase Agreement, or otherwise control,
unless CTS and Customer specifically agree in writing that such terms shall
control.
5. DELIVERY AND INSTALLATION; CHANGES AFFECTING A SYSTEM.
5.1 DELIVERY.
5.1.1 SHIPMENT. Components to be delivered by CTS under
a Market Purchase Agreement will be delivered to a freight carrier at CTS's
facilities in Seattle, Washington U.S.A. or at such other locations as CTS may
specify from time to time. Such Components will be delivered in accordance with
the terms of this Agreement, the applicable Market Purchase Agreement, and on an
Implementation Schedule agreed upon by both CTS and Customer. CTS reserves the
right to make partial shipments and to make shipments at times convenient to
CTS; PROVIDED, that in each case CTS shall meet the applicable Implementation
Schedule in all material respects except as otherwise provided under this
Agreement or any other written agreement between CTS and Customer.
5.1.2 TITLE. Title to Hardware purchased from CTS shall
pass to Customer upon CTS's delivery thereof to a freight carrier at CTS's
facilities in Seattle, Washington U.S.A. or at such other locations as CTS may
specify from time to time.
5.1.3 INSURANCE, SHIPPING CHARGES, AND RISK OF LOSS.
All Fees are F.O.B. at CTS's facilities in Seattle, Washington U.S.A. In
addition to the Fees described in Section 9, below, and in the attached
SCHEDULE A, Customer shall pay all insurance, freight, brokerage, and
handling charges associated with all shipments of Components. Customer shall
insure the contents of such shipments against damage and risk of loss during
shipment and thereafter. CTS shall assume no liability in connection with
such shipments; PROVIDED, HOWEVER, that CTS shall take directions from
Customer and otherwise assist Customer in coordinating such shipments. In
the absence of specific written instructions from Customer, CTS shall select
the freight carrier for shipments from CTS, but such freight carrier shall
not be construed as CTS's agent.
5.2 INSTALLATION AND READINESS OF CUSTOMER FACILITIES.
5.2.1 TECHNICAL MANAGERS. Customer and CTS shall each
designate and provide the other party with the name, address, and telephone
number of one (1) primary and one (1) back up technical manager for overall
coordination between Customer and CTS with respect to the installation and
acceptance of Components for Systems. The initial technical managers of
Customer and
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CTS for such overall coordination are identified in the attached SCHEDULE G.
Each party shall have the right to replace technical managers by providing
notice of such replacement to the other party.
5.2.1 INSTALLATION. For each installation of Components
at a Customer's MTSO (or other location at which regional processors for a
System are installed or to be installed), CTS will perform the installation,
subject to the terms and conditions of this Agreement and the Fees set forth in
SCHEDULE A. For each installation of Components at a Cell Site, Customer, at
its option, may perform the installation itself or request that the installation
be performed by CTS, subject to the terms and conditions of this Agreement and
the Fees set forth in SCHEDULE A. Prior to any installation by Customer or any
mutually acceptable Third Party, the installers for such entities must first
complete CTS training for such installation as set forth in the attached
SCHEDULE F. CTS and Customer agree to use commercially reasonable efforts to
effect installations of Components in accordance with the applicable
Implementation Schedule.
5.2.3 READINESS OF CUSTOMER FACILITIES. Customer
shall maintain Customer Facilities in compliance with the Infrastructure and
Environmental Requirements at all times during the term of this Agreement.
Customer shall certify compliance with the Infrastructure and Environmental
Requirements with respect to each Customer Facility at the times specified in
the applicable Implementation Schedule. If, upon inspection, CTS determines
that the Infrastructure and Environmental Requirements are not met, CTS will
promptly notify Customer, and Customer shall cure the Infrastructure and
Environmental Requirements defects within [*] of receipt of CTS's notice.
If, in the reasonable opinion of CTS, all Infrastructure and Environmental
Requirements are not met within such [*], then CTS shall be entitled to
reschedule the installation as CTS deems reasonable and Customer shall pay
CTS's costs and expenses attributable to any such rescheduling as set forth
in Section 9, below.
5.3 CHANGES AFFECTING A SYSTEM.
5.3.1 CHANGES TO CUSTOMER EQUIPMENT OR SOFTWARE. If
Customer plans to install new or additional switching equipment or software
for its switch, or data networking or other equipment or software, or if
Customer is informed by its provider of switching, interconnection, or other
equipment or software that new or additional equipment or software will be
installed, Customer will notify CTS in writing if such installation could
reasonably be expected to adversely affect a System, as soon as reasonably
possible prior to such installation (but at a minimum Customer will provide
such advance notice as Customer customarily provides other vendors who
interface with its cellular networks). In such notice, Customer will specify
in detail the changes and their effects, if known, and will cooperate with
CTS in determining such effects as soon as practicable after such notice,
and, in any event, prior to such installation. After receipt of the notice
described above, and so long as Customer is not in breach or default under
this Agreement, CTS will use commercially reasonable efforts to determine
whether any modifications are required to the affected System due to any such
new or additional equipment or software and, if such modifications are
required, CTS will use commercially reasonable efforts to provide the same on
such terms and conditions and for such additional fees as the parties may
mutually agree to in writing. Except as the parties otherwise expressly
agree to in writing: (a) the performance warranties set forth in Subsections
11.2 and 11.3, below, will not apply if any Components are materially and
adversely affected by any of the new or additional equipment or software
described in this Subsection; and (b) the warranties set forth in Subsection
11.4, below, will not apply to the System if its performance at the time of
testing under SCHEDULE I is materially and adversely affected by any of the
new or additional equipment of software described in this Subsection.
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5.3.2 MAINTENANCE, RELOCATION, CONNECTION, OR
DISCONNECTION OF A SYSTEM. Customer may repair, replace, relocate, connect,
or discount Components of a System, provided that the same is performed in
accordance with this Agreement, the Support Agreement, and CTS-approved
policies and procedures. For any disconnection performed in accordance with
this Subsection, the warranties set forth in Section 11, below, applicable
the affected System shall be suspended upon such disconnection and remain
suspended until such System is either reconnected in accordance with
CTS-approved policies and procedures, or is certified by CTS to be
appropriately reconnected and operating in proper working order. If any
repair, replacement, relocation, connection, or disconnection of a Component
of a System performed by Customer or its agent is not performed in accordance
with this Agreement, the Support Agreement, and CTS-approved policies and
procedures, then: (a) the warranties set forth in Subsections 11.2 and 11.3,
below, applicable to such Component shall automatically terminate if such
action by Customer materially and adversely affects such Component; and (b)
the warranties set forth in Subsection 11.4, below, applicable to such System
shall automatically terminate if such action by Customer materially and
adversely affects [*].
6. RESCHEDULING.
6.1 RESCHEDULING BY WRITTEN NOTICE. Either party may
reschedule any scheduled shipment of Components from CTS upon written notice
to the other party not less than ten (10) days prior to the scheduled
shipment of such Components. In addition, either party may reschedule all or
any part of an Implementation Schedule upon written notice to the other party
not less than ten (10) days prior to any scheduled item on the Implementation
Schedule affected by such rescheduling. No shipment or scheduled item on an
Implementation Schedule may be rescheduled to a time later than thirty (30)
days from the initially scheduled time without the express written consent of
both parties, except as otherwise provided herein. If in CTS's opinion any
rescheduling affects other scheduled shipments or installations of
Components, CTS may reschedule such other shipments or installations as is
reasonable given the circumstances. Customer shall pay CTS's out-of-pocket
costs and expenses attributable to any rescheduling by or due to the fault of
Customer, as set forth in Section 9. CTS shall pay Customer's out-of-pocket
costs and expenses attributable to any rescheduling by or due to the fault of
CTS.
6.2 DELAYS BEYOND REASONABLE CONTROL. If any Component
shipped from CTS is lost or damaged during shipment, CTS will use reasonable
efforts to reschedule a replacement shipment to meet the applicable
Implementation Schedule. CTS shall not be liable for delays in any
Implementation Schedule or any other delivery, shipment, installation, or
acceptance testing of Components due to delays beyond its reasonable control.
In the event of any such delay, all scheduled items on any Implementation
Schedule and other deliveries, shipments, installations, and acceptance
testing of Components affected by such delay shall be extended for a period
equal to the period of the delay, except as the parties otherwise expressly
agree to in writing. If any delivery of Components material to a System is
delayed in excess of [*] due to no fault of CTS, then the exclusive remedy of
Customer shall be the right to cancel any outstanding Market Purchase
Agreement affected by such delay.
7. ACCEPTANCE.
7.1 ACCEPTANCE TESTING. After installation of the initial
configuration of a System within a given Licensed Market, representatives of
CTS and Customer will perform acceptance testing upon the System in
accordance with the Acceptance Test Plan. Acceptance testing will commence
upon certification by CTS that the System is ready for testing (the "Start
Date"). Thereafter,
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CTS and Customer will conduct acceptance tests using simulated and/or actual
data in accordance with the Acceptance Test Plan for a period not to exceed
[*] from the Start Date (the "Acceptance Testing Period"). Upon the
conclusion of the Acceptance Testing Period, Customer shall complete and
execute a copy of the Acceptance Test Plan, which shall state with
specificity any aspects of the System's performance which do not materially
perform in accordance with the Acceptance Test Plan. The System will be
deemed accepted by Customer if: (i) the Acceptance Test Plan completed and
executed by Customer does not specify any such non-conformities; (ii)
Customer does not complete, execute, and deliver to CTS an Acceptance Test
Plan specifying any such non-conformities within [*] after the expiration of
the Acceptance Testing Period; (iii) Customer commences commercial use of
the System (I.E., use of the System in connection with Customer subscribers)
after conclusion of the Acceptance Testing Period; or (iv) in the event of a
dispute as to the performance of the System, an executive panel of the
parties or an arbitration panel concludes that the System is materially
performing in accordance with the Acceptance Test Plan, as provided in
Subsection 7.3, below.
7.2 CORRECTION OF NON-CONFORMITIES. If the Acceptance Test Plan
described in Subsection 7.1, above, specifies aspects of an initial System's
performance which do not materially perform in accordance with the Acceptance
Test Plan (and if the System is not otherwise deemed accepted by Customer under
Subsection 7.1, above), then, within ten (10) days after CTS's receipt of such
executed Acceptance Test Plan, CTS will submit to Customer a written action
plan, which will outline CTS's proposed course of action for resolution of the
non-conformities and a timetable for re-testing the System in accordance with
Subsection 7.1, above. Within ten (10) days after CTS's submission of the
proposed action plan, the parties will agree on a final action plan, and CTS
will thereafter work diligently to implement such final action plan. Customer
will make available to CTS all resources and facilities reasonably necessary to
implement the final action plan, and will fully cooperate with CTS's efforts.
Upon the conclusion of a re-testing period specified in the final action plan,
Customer shall complete and execute a copy of the Acceptance Test Plan (or final
action plan) in the manner specified in Subsection 7.1, above. The provisions
of Subsection 7.1, above, shall apply to determine whether the System is deemed
accepted by Customer after such re-testing. If CTS is unable to correct the
non-conformities within the timetables and retesting periods described in the
final action plan so that the initial System materially performs in accordance
with the Acceptance Test Plan, then Customer may, at its election, terminate the
License and the obligations of the parties hereunder as it applies to such
System by providing CTS with written notice of termination within thirty (30)
days after expiration of the timetables and re-testing periods described in the
final action plan.
7.3 RESOLUTION OF DISPUTES OVER ACCEPTANCE.
7.3.1 The parties agree to settle any dispute arising
out of the acceptance testing provisions described in this Section 7 through
consultation and negotiation in good faith and in the spirit of mutual
cooperation. Accordingly, if, after the conclusion of any Acceptance Testing
Period or re-testing period described in this Section 7, the parties dispute
whether the initial System is materially performing in accordance with the
applicable Acceptance Test Plan, the parties agree to meet to try to resolve
the dispute within fourteen (14) days after one party delivers a written
request for a meeting to the other party. Such meeting shall be attended by
individuals with decision-making authority to attempt, in good faith, to
negotiate a resolution of the dispute prior to pursuing other available
remedies. If, within fourteen (14) days after such meeting, the parties have
not succeeded in negotiating a resolution of the dispute, then either party
may commence arbitration under Subsection 7.3.2, below, by delivering a
written demand for arbitration to the other party.
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7.3.2 If either party commences arbitration in the
manner described above, the dispute will be subjected to binding arbitration
before a panel of three (3) independent arbitrators. Such arbitration shall
be held in [*], in accordance with the then-current Commercial Arbitration
Rules of the American Arbitration Association, as modified to be consistent
with this Subsection. Such arbitrators shall be selected by mutual agreement
of the parties, or failing such agreement within fourteen (14) days after
delivery of the original written demand for arbitration, each party shall
select one arbitrator and the two selected arbitrators shall mutually agree
upon the selection of a third arbitrator within thirty (30) days from
delivery of the original written demand for arbitration. The arbitrators
shall have the authority to require the submission (at a hearing or
otherwise) of such documents, information, testimony, and other items as the
arbitrators may deem necessary to make a fair and reasonable decision.
Within forty-five (45) days after the appointment of the arbitrators, the
arbitrators will render a written decision. The arbitrators shall be limited
to addressing the issues in dispute arising out of the acceptance testing
provisions described in this Section 7 and interpreting the applicable
provisions of this Agreement and the applicable Market Purchase Agreement in
connection with such issues. The parties agree that the System shall be
deemed accepted for purposes of this Agreement if the arbitrators conclude
that the System is materially performing in accordance with the applicable
Acceptance Test Plan. A judgment upon the award rendered by the arbitrators
may be entered in any court having jurisdiction thereof and shall constitute
a final adjudication of all matters submitted to arbitration. The
arbitrators shall, as part of their written decision, award attorneys' fees
and related expenses in accordance with Subsection 16.11, below. The costs
of all arbitration services, however, shall be shared equally by the parties.
7.4 APPLICATION TO SUBSEQUENT INSTALLATIONS. The provisions
of this Section 7 shall also apply to the acceptance of Components installed
on a System after the initial installation of such System, except that: (i)
CTS and Customer shall first test the newly-installed Components and
subsequently test the System after integration of the newly-installed
Components; (ii) Customer may reject such newly-installed Components in the
manner described in Subsection 7.1; (iii) CTS shall correct any
non-conformities in the manner described in Subsection 7.2; and (iv) if CTS
does not correct such non-conformities within the designated timetables and
re-test periods, then Customer may terminate the obligations of the parties
only with respect to such newly-installed Components.
7.5 [*]. CTS and Customer agree to [*] described in
Subsection [*].
8. TRAINING, SUPPORT, AND OTHER SERVICES.
8.1 TRAINING SERVICES. For the initial deployment of a System
within a Licensed Market, CTS will provide training classes for Customer as
set forth in the attached SCHEDULE F and in accordance with the initial
Implementation Schedule for such System. Upon request, CTS will provide
additional training upon such terms and conditions and for such Fees as the
parties may mutually agree to in writing.
8.2 SUPPORT SERVICES. Subject to the terms of this Agreement,
CTS will offer software and hardware maintenance services, System monitoring
services, and software subscription services for each System, pursuant to the
Fees and other terms set forth in the Support Services Agreement. Customer will
select support for each System as set forth in the Support Services Agreement.
Such selection will be made as part of the applicable Market Purchase Agreement
for such System.
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8.3 SOURCE CODE [*]. CTS will deposit into escrow and
maintain throughout the term of the License: (i) one (1) copy of the source
code for the CTS-owned Licensed Programs (I.E., only Licensed Programs to
which CTS has source code rights); and (ii) one (1) copy of [*]. Such
materials will be deposited in escrow in Seattle, Washington, pursuant to
CTS's standard form Source Code Escrow Agreement among CTS, Customer, and an
escrow holder approved by CTS and Customer.
8.4 ROAMING FRAUD PREVENTION SERVICES. Subject to the terms
of this Agreement, CTS will offer services to Customer for the real-time
prevention of cellular roaming cloning fraud, pursuant to the terms and
conditions and for the fees set forth in the Roaming Service Agreement.
9. COMPENSATION.
9. FEES. In consideration for the rights, warranties, and
covenants provided by CTS hereunder, Customer hereby agrees to pay the Fees
specified in the attached SCHEDULE A when due as set forth in such Schedule.
9.2 STANDARD TERMS.
9.2.1 In addition to the Fees and other charges required
to be paid by Customer to CTS hereunder, Customer shall pay (or, at CTS's
election, reimburse CTS) for all network interconnection costs, switch
interconnection and interface charges, System telecommunications costs, and all
federal, state, and local taxes and withholding requirements in connection with
the transactions contemplated by this Agreement and each Market Purchase
Agreement. Such taxes specifically include, without limitation, excise, sales,
use and royalty taxes, withholding taxes and related requirements, value-added
taxes, all similar taxes and charges now in effect or enacted in the future, and
all interest and penalties which may result from the failure to pay any of such
taxes or charges.
9.2.2 If any delay in meeting the Infrastructure and
Environmental Requirements causes the CTS installers or other personnel to
remain longer than the scheduled installation days, or to make additional
trips to Customer Facilities, then, in addition to the Fees specified in
SCHEDULE A, Customer shall pay all additional travel and lodging expenses
plus CTS's then-current day charge for each day that each installer or other
personnel is required to be at the installation site beyond the scheduled
number of days.
9.2.3 If any shipment or installation is rescheduled or
delayed by Customer or due to the fault of Customer, then Customer shall pay
CTS's costs and expenses attributable to such rescheduling or delay, including
without limitation increased costs of Components, all costs and charges
associated with CTS's prepayment of Components and storage charges.
9.2.4 Except as otherwise expressly set forth in this
Agreement or any Schedule hereto: (i) CTS will invoice Customer for amounts to
be paid hereunder, and Customer will pay such invoice [*]; (ii) Customer shall
not be entitled to the return or reimbursement of any compensation paid to CTS
pursuant to this Agreement; and (iii) all Fees and other charges hereunder shall
be paid to CTS in immediately available funds in United States Dollars.
9.2.5 If Customer fails to pay any sum when due and
payable, Customer shall pay interest at a rate of one and one-half percent
(1.5%) per month, accruing from the due date of such payment until paid, or
the maximum rate permitted by applicable law if lower. If CTS is
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entitled to the sums sought to be collected, it shall also be entitled to
receive all costs expended by CTS in collecting those sums, including without
limitation reasonable attorneys' fees.
10. PROPRIETARY RIGHTS.
10.1 INTELLECTUAL PROPERTY RIGHTS.
10.1.1 The License shall not transfer any title to or
ownership in the Licensed Programs or Documentation, or any Intellectual
Property Rights in connection with the Licensed Programs and/or
Documentation, from CTS to Customer. Accordingly, subject only to the
License, all right, title, and interest in and to the Licensed Programs and
Documentation, and all Intellectual Property Rights in connection with the
Licensed Programs and/or Documentation, are and shall at all times remain the
exclusive property of CTS or its licensor(s). CTS may use, sell, assign,
transfer and license rights relating to the Licensed Programs and/or
Documentation to any Third Party for any purpose free from any claim of
Customer.
10.1.2 CTS and Customer each own certain trade names,
logos, trademarks, and service marks used in identifying and marketing their
respective technology, products, and services (collectively, "Trademarks").
Each party recognizes and consents for all purposes that all Trademarks of
the other party, whether or not registered, constitute the exclusive property
of such other party and will not be used except as approved by such other
party in advance and in writing, nor shall either party use any confusingly
similar Trademarks of the other party. Nothing contained in this Agreement
shall be construed as conferring any additional rights upon either party to
use in advertising, publicity, or other promotional activities any Trademark
of the other party.
10.2 CONFIDENTIAL INFORMATION. The parties acknowledge that
each party may disclose additional Confidential Information to the other
party or its representatives in furtherance of the transactions contemplated
by this Agreement. Therefore, notwithstanding anything to the contrary, the
Nondisclosure Agreement is hereby amended such that all Confidential
Information of a party disclosed to the other party or any of its
representatives at any time during the term of this Agreement shall be
considered Confidential Information of the disclosing party and shall be
subject to the operative provisions of the Nondisclosure Agreement. Customer
hereby agrees to ensure that each of its representatives who receives
Confidential Information of CTS complies with the terms of the Nondisclosure
Agreement, as amended hereby, to the same extent as if such representative
had executed the Nondisclosure Agreement, as amended. CTS hereby agrees to
ensure that each of its representatives who receives Confidential Information
of Customer complies with the terms of the Nondisclosure Agreement, as
amended hereby, to the same extent as if such representative had executed the
Nondisclosure Agreement, as amended. All Confidential Information of CTS is
and shall at all times remain the exclusive property of CTS, and all
Confidential Information of Customer shall at all times remain the exclusive
property of Customer. For purposes of this Subsection, "representatives"
means the officers, directors, employees, agents, and affiliates of a party.
11. WARRANTIES AND COVENANTS.
11.1 INTELLECTUAL PROPERTY RIGHTS. CTS hereby warrants to
Customer that, subject to the provisions of Subsection 12.1.3, below, each
System furnished by CTS hereunder, if used by Customer in accordance with the
terms of this Agreement, is free of any valid claim by a Third Party that the
System infringes an existing United States Intellectual Property Right of
such Third Party.
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Customer's exclusive remedy for breach of the warranty set forth in this
Subsection 11.1 is set forth in Subsection 12.1, below.
11.2 SOFTWARE PERFORMANCE. For each System within a given
Licensed Market, CTS hereby warrants and covenants to Customer that the
Licensed Programs (excluding the Third-Party Software) eligible for software
maintenance services under the Support Services Agreement, when used in
conjunction with the Hardware necessary for operation of such System and with
Customer's properly-operating cellular network, and when all relevant
Infrastructure and Environmental Requirements are satisfied, will materially
perform in accordance with their Specifications for so long as Customer
continuously purchases for such System such software maintenance services
under the Support Services Agreement. Customer's exclusive remedy for breach
of such warranty (without limiting the remedies provided under Subsection
11.4, below) shall be correction by CTS, at no additional charge to Customer,
of any errors or malfunctions in such Licensed Programs found not to be in
compliance with such warranty, in accordance with the terms of the Support
Services Agreement; PROVIDED, HOWEVER, that CTS shall have no obligation to
make such corrections if Customer is in breach or default under this
Agreement or if Customer fails to promptly notify CTS in writing upon
discovery of such errors or malfunctions. If a correction of an error or
malfunction is commercially impractical, CTS may provide Customer with a
commercially reasonable circumvention of such error or malfunction.
11.3 HARDWARE PERFORMANCE. For each System within a given
Licensed Market, CTS hereby warrants and covenants to Customer that the
CTS-proprietary Hardware purchased from CTS for installation in Cell Sites,
when used in conjunction with the Licensed Programs necessary for operation
of such System and with Customer's properly-operating cellular network, and
when all relevant Infrastructure and Environmental Requirements are
satisfied, will materially perform in accordance with their Specifications
for [*]. Customer's exclusive remedy for breach of such warranty (without
limiting the remedies provided under Subsection 11.4, below) shall be either
repair or replacement by CTS, at its expense and in its discretion, of any of
such Hardware found not to be in compliance with such warranty, in accordance
with the terms of the Support Services Agreement; PROVIDED, HOWEVER, that CTS
shall have no obligation to repair or replace such Hardware if Customer is in
breach or default under this Agreement or if Customer fails to promptly
notify CTS in writing upon discovery of such errors or malfunctions. For all
other Hardware components purchased from CTS, CTS will pass through to
Customer the warranties that CTS receives from its vendor for such Hardware
components, to the extent that such vendor will honor such warranties for
Hardware supplied by CTS to Customer.
11.4 [*]. CTS hereby covenants to Customer that it [*] as
specified therein. Customer's exclusive remedies for breach of such terms
are [*].
11.5 NO WARRANTIES OTHER THAN EXPRESS WRITTEN. EXCEPT AS
EXPRESSLY SET FORTH IN THIS SECTION 11, CTS MAKES NO REPRESENTATIONS,
WARRANTIES, OR GUARANTIES OF ANY KIND (INCLUDING WITHOUT LIMITATION
PERFORMANCE WARRANTIES), EITHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH
RESPECT TO THE SYSTEM, HARDWARE, LICENSED PROGRAMS, DOCUMENTATION, OR ANY
OTHER ITEMS OR SERVICES COVERED BY OR FURNISHED UNDER THIS AGREEMENT,
INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY (I) OF MERCHANTABILITY,
(II) OF FITNESS FOR A PARTICULAR PURPOSE, OR (III) ARISING FROM COURSE OF
PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE.
12. INDEMNIFICATION.
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12.1 SYSTEM INFRINGEMENT.
12.1.1 CTS will defend, at its expense, any Third Party
claim brought against Customer based on an infringement which, if proven,
would result in a breach of the warranty set forth in Subsection 11.1, above;
PROVIDED, that: (i) Customer promptly delivers written notice of such claim
to CTS, together with copies of all related court documents involving such
claim; and (ii) Customer provides CTS with full and complete information and
reasonable assistance for the defense of such claim as reasonably requested
by CTS. In addition, subject to the terms of this Agreement, CTS will
indemnify and hold harmless Customer from and against any and all damages and
costs awarded by final judgment against Customer as a result of such claim,
or, if any compromise or settlement is made with respect to such claim, CTS
will pay all amounts agreed to by CTS in settlement of the claim. CTS shall
have full and complete authority to defend and settle such claim.
12.1.2 If, in any proceeding involving a Third Party
claim described in Subsection 12.1.1, above, a System is held to constitute
an infringement of a Third Party's United States Intellectual Property Right
and use of such System is enjoined, or if in CTS's opinion any such
infringement is likely to occur, CTS, at its option and expense, may either:
(i) obtain the right for Customer to continue use of the System by license,
release from claim of infringement, or by other appropriate means; (ii)
modify the System to make it non-infringing; (iii) replace the System with a
non-infringing system of like functionality; or (iv) if election of either of
the above clauses (i), (ii) or (iii) are impractical in CTS's reasonable
judgment, after using reasonable efforts for a reasonable period of time
under the circumstances, CTS may terminate this Agreement and the License
granted herein with respect to such System by providing Customer with written
notice of such termination. If, pursuant to clause (iv) above, CTS
terminates this Agreement and the License with respect to a System, then:
(a) Customer shall, at CTS's request, either promptly return the System to
CTS or destroy the same; and (b) Customer as its exclusive remedy shall be
entitled to a refund equal to the License Fees and Hardware Fees described in
SCHEDULE A which specifically pertain to such System and which Customer
actually paid to CTS, which refund CTS may reduce by a reasonable sum for
use, depreciation, and amortization.
12.1.3 Notwithstanding anything to the contrary, CTS
shall have no liability under this Agreement for any claim which: (i)
pertains to a System which has been altered or modified without CTS's prior
written approval, unless the use of an unaltered or unmodified version of the
System is shown to constitute the infringement; (ii) use of the System in
combination or conjunction with any item not furnished by CTS, unless the use
of the System is shown to constitute the infringement when not used in
combination or conjunction with the item not furnished by CTS; or (iii)
identifies any Third-Party Software or Hardware (other than CTS-proprietary
Hardware purchased from CTS for installation in Cell Sites) as forming the
basis of such infringement.
12.2 OTHER INDEMNIFICATION.
12.2.1 BY CUSTOMER. Customer acknowledges that CTS has
no control over the business activities of Customer, its cellular networks or
other systems, the quality of telecommunications transmissions, or the content
of the data transmitted. Accordingly, Customer will defend, at its expense,
any and all Third Party claims brought against CTS arising from the operation
of the cellular networks or other business activities of Customer, except to
the extent that any Third Party claim is based on: (i) the subject matter
described in Subsection 12.1, above, or (ii) Customer's use of the items
furnished by CTS hereunder, so long as such use is in accordance with the
terms of this Agreement and the Support Services Agreement; PROVIDED THAT:
(a) CTS promptly delivers written notice of such claim to Customer, together
with copies of all related court documents involving such claim; and (b)
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CTS provides Customer with full and complete information and assistance for
the defense of such claim as reasonably requested by Customer. In addition,
subject to the terms of this Agreement, Customer will indemnify and hold
harmless CTS from and against any and all damages and costs awarded by final
judgment against CTS as a result of such claim, or, if any compromise or
settlement is made with respect to such claim, Customer will pay all amounts
agreed to by Customer in settlement of the claim. Customer shall have full
and complete authority to defend and settle such claim.
12.2.2 BY CTS. CTS acknowledges that Customer has no
control over the business activities of CTS. Accordingly, CTS will defend, at
its expense, any and all Third Party claims brought against Customer arising
from the operation of the business activities of CTS, except to the extent that
any Third Party claim is based on the subject matter described in Subsections
5.3.2 or 12.2.1, above, for which Customer is obligated to defend and indemnify
CTS; PROVIDED THAT: (a) Customer promptly delivers written notice of such claim
to CTS, together with copies of all related court documents involving such
claim; and (b) Customer provides CTS with full and complete information and
assistance for the defense of such claim as reasonably requested by CTS. In
addition, subject to the terms of this Agreement, CTS will indemnify and hold
harmless Customer from and against any and all damages and costs awarded by
final judgment against Customer as a result of such claim, or, if any compromise
or settlement is made with respect to such claim, CTS will pay all amounts
agreed to by CTS in settlement of the claim. CTS shall have full and complete
authority to defend and settle such claim.
13. PROSECUTION OF INFRINGEMENT CLAIMS. Notwithstanding anything to
the contrary, Customer shall promptly notify CTS in writing of any facts of
which Customer is aware which might constitute an infringement by any Third
Party of any of CTS's Intellectual Property Rights. CTS shall have the
exclusive right to take all actions, control all litigation or other
proceedings, and negotiate and enter into all settlements with respect to any
such infringement, as CTS deems necessary or appropriate to protect CTS's
Intellectual Property Rights, except as CTS and Customer may otherwise agree to
in writing. Customer agrees to provide to CTS, at CTS's expense, full and
complete information and assistance in connection with the prosecution of such
infringement as reasonably requested by CTS. Any recovery of damages or
attorneys' fees in connection with any such action, or in settlement of any such
action, will belong entirely to CTS. CTS will have no obligation to institute
suit against any particular person or entity for infringement of any
Intellectual Property Rights of CTS.
14. TERM AND TERMINATION.
14.1 TERM. The term of this Agreement commences on the date of
this Agreement and will continue thereafter for [*]. This Agreement may be
extended for a mutually agreeable renewal term, provided that Customer and CTS
expressly agree to such extension in writing before the expiration of the
initial term. All terms and conditions hereof shall remain in effect during any
renewal term, except as the parties otherwise expressly agree to in writing.
Notwithstanding the above, this Agreement shall terminate upon the occurrence of
any of the events described in the termination provisions set forth below.
14.2 TERMINATION.
14.2.1 MATERIAL BREACH AFTER NOTICE. Except as
otherwise set forth in this Agreement, upon material breach or default under
this Agreement by any party (the "breaching party"), if the other party
("non-breaching party") gives written notice of such breach or default and
the same is not cured within thirty (30) days after delivery of such notice,
then, without limitation of any
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other remedy available hereunder, the non-breaching party may terminate this
Agreement by delivery of a notice of termination at any time thereafter
before such breach or default has been cured; PROVIDED, that for any breach
or default (other than a payment default or a default under Subsections 2.2
or 10.2) that is not reasonably susceptible of cure within thirty (30) days,
the breaching party shall have such additional time, up to ninety (90)
additional days, as is reasonably necessary to cure the default, so long as
such party continuously and diligently pursues such cure. The parties agree
that the failure to make payments of Fees or other charges when due hereunder
shall constitute a "material breach" of this Agreement.
14.2.2 IMMEDIATE TERMINATION. Notwithstanding anything
to the contrary, this Agreement and the License may be immediately terminated
upon written notice: (i) at the option of CTS in the event that Customer
violates any of the provisions of Subsection 2.2 in any way without the prior
written consent of CTS, and Customer fails to cure such violation within (3)
days after CTS's delivery of notice of breach to Customer; or (ii) at the
option of either party if the other party materially violates the
Nondisclosure Agreement or any of the provisions of Subsection 10.2, and such
other party fails to cure such violation in accordance with any applicable
cure periods set forth in the Nondisclosure Agreement.
14.2.2 DISCRETIONARY TERMINATION. Either party may, in
its discretion, terminate this Agreement and the License at any time and for
any reason by giving the other party at least sixty (60) days prior written
notice of termination.
14.3 EFFECT OF EXPIRATION OR TERMINATION.
14.3.1 Following the expiration or termination of this
Agreement, Customer shall [*] with respect to the configuration of Systems
installed as of the expiration or termination of this Agreement, [*] any of
the following: (i) if this Agreement is terminated pursuant to Subsections
14.2.1 or 14.2.2 due to a breach or default by Customer, [*], then [*] upon
termination of this Agreement; or (ii) if this Agreement expires, is
terminated due to the events described in Subsection 14.2.3, or is terminated
pursuant to Subsection 14.2.1 or 14.2.2 due to a breach or default by CTS,
then [*] breach or default by Customer under any of the survival terms
described in Subsection 14.4, and the expiration of any applicable cure
period with respect to such breach or default.
14.3.2 Upon the expiration or termination of this
Agreement, Customer shall immediately cease use of the Confidential
Information of CTS [*] and shall, at CTS's election, either: (i) return to
CTS the original and all copies of the same, in whole or in part, in any
form, including partial copies and modifications, and any related materials
received from CTS, or (ii) furnish to CTS a certified executed document
stating that the same has been destroyed. Upon the termination of the
License, Customer shall immediately return or destroy all copies of Licensed
Programs and Documentation retained for use pursuant to Subsection 14.3.1,
above, in accordance with the procedures set forth in this Subsection.
14.3.3 Upon the expiration or termination of this
Agreement, CTS shall immediately cease use of the Confidential Information of
Customer (except as the parties otherwise expressly agree to in writing) and
shall, at Customer's election, either: (i) return to Customer the original
and all copies of the same, in whole or in part, in any form, including
partial copies and modifications, and any related materials received from
Customer, or (ii) furnish to Customer a certified executed document stating
that the same has been destroyed.
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14.3.4 Customer shall pay all accrued and unpaid Fees
and other charges hereunder within thirty (30) days after the termination of
this Agreement.
14.4 SURVIVAL TERMS. Upon termination of this Agreement, all
obligations of the parties hereunder shall cease, except those obligations
described in Sections 2.2, 10, 12, 13, 14, 15, and 16, which provisions shall
survive the termination of this Agreement. Termination of this Agreement shall
not be construed to waive or release any claim which a party is entitled to
assert at the time of such termination, and the applicable provisions of this
Agreement shall continue to apply to such claim until it is resolved.
15. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE
CONTRARY, CTS SHALL HAVE NO LIABILITY FOR ANY LOSS TO CUSTOMER, ANY AFFILIATE OF
CUSTOMER, OR ANY THIRD PARTY EXCEPT FOR: (I) PHYSICAL LOSS OR DAMAGE TO AN
INDIVIDUAL OR TO REAL PROPERTY OR TANGIBLE PERSONAL PROPERTY ARISING FROM THE
NEGLIGENT OR WILLFUL MISCONDUCT OF CTS; OR (II) LIABILITY OF CTS EXPRESSLY
PROVIDED FOR IN SECTION 12.1 HEREOF; OR (III) LIABILITY OF CTS FOR CLAIMS
ARISING AS A RESULT OF OR RELATED TO PERFORMANCE OF A SYSTEM, WHICH LIABILITY
UNDER THIS CLAUSE III SHALL BE LIMITED TO GENERAL MONEY DAMAGES AND SHALL IN NO
EVENT EXCEED AN AMOUNT EQUAL TO [*], WHERE SUCH AMOUNT EQUALS [*] THIS AGREEMENT
AND [*] THEREAFTER. HOWEVER, IN NO EVENT SHALL CTS BE LIABLE FOR ANY DAMAGES
RESULTING FROM LOSS OF USE, DATA, PROFIT, BUSINESS, REVENUE, OR GOODWILL, OR FOR
ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY
DAMAGES, WHETHER ARISING IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION
NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE, EVEN IF CTS HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
16. MISCELLANEOUS.
16.1 NOTICES. All notices hereunder by either party shall be
given by personal delivery (including by a reputable courier service) or by
sending such notice by United States certified mail return receipt requested,
postage prepaid, and addressed as set forth on the signature page of this
Agreement. Such notices shall be deemed to have been given and delivered upon
receipt and the date of receipt identified by the United States Postal Service
on any return receipt card shall be conclusive evidence of receipt. Notices may
also be transmitted by facsimile or telecopy machine, and such notices shall be
deemed received when transmitted if: (i) a document is electronically generated
by the transmitting machine confirming that the transmission was received; and
(ii) the party transmitting the notice deposits such notice the same day with a
reputable courier service providing delivery not later than the following
business day. Any party, by written notice to the other as above described, may
alter the address for receipt by it of written notices hereunder.
16.2 INDEPENDENT CONTRACTORS. It is expressly agreed that CTS
and Customer are acting hereunder as independent contractors and under no
circumstances shall any of the employees of one party be deemed the employees of
the other party for any purpose. Nothing in this Agreement shall be deemed to
constitute, create, or in any way be interpreted as a partnership, joint
venture, franchise, or other formal business organization involving CTS and
Customer, nor shall anything in this Agreement be deemed to constitute one party
the employee or agent of the other party. Neither CTS nor Customer shall have
any authority under this Agreement to bind, obligate, or otherwise commit the
other party to any agreement or transaction for any purpose whatsoever.
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16.3 EXCUSED PERFORMANCE. Except for the failure to pay Fees
or other charges when due hereunder, neither party shall be liable for, or be
considered to be in breach or default under this Agreement as a result of,
any delay or failure to perform as required hereunder which is due to any
cause or condition beyond such party's reasonable control.
16.4 PUBLICITY. Neither party shall disclose to any Third
Party the terms of this Agreement or the existence of this Agreement without
the express written consent of the other party; PROVIDED, HOWEVER, that
either party may make public announcements concerning the terms of this
Agreement or the existence of this Agreement without such express written
consent of the other party if: (i) the announcement is necessary for such
party to comply with the requirements of the United States Securities and
Exchange Commission, any other governmental agency, any court of competent
jurisdiction, or applicable law or regulation; or (ii) the subject matter of
such announcement had been previously disclosed in accordance with the
requirements of this Subsection.
16.5 ASSIGNMENT. Neither party shall assign any of its rights
or obligations hereunder (in whole or in part) without the express written
consent of the other party, which consent shall not be unreasonably withheld.
Notwithstanding the foregoing, each party may, upon notice to the other
party, assign this Agreement and all of its rights and obligations hereunder
(in whole but not in part) to any of its affiliates capable of performing its
obligations hereunder or to any entity which acquires all or substantially
all of such party's assets or stock pursuant to any merger, stock or asset
transfer, consolidation, or other business combination. Any attempt by any
party to assign or transfer any of its rights or obligations under this
Agreement in violation of this Subsection shall be considered void and shall
be deemed a material breach of this Agreement. Subject to the foregoing,
this Agreement will be fully binding upon, inure to the benefit of and be
enforceable by the parties hereto and their respective successors and assigns.
16.6 SUBCONTRACTORS. Notwithstanding anything to the contrary,
CTS may in its discretion subcontract the performance of any of its
obligations hereunder or under any Market Purchase Agreement to any Third
Party; PROVIDED, that CTS's subcontractors shall perform to the same
standards imposed upon CTS hereunder and CTS shall be liable for the conduct
of its subcontractors to the same extent as CTS's own liability under this
Agreement. Upon request, CTS will provide Customer with a list of such
subcontractors.
16.7 SEVERABILITY. In the event any provision hereof shall be
deemed invalid or unenforceable by any court or governmental agency of
competent jurisdiction, such provision shall be deemed severed from this
Agreement and all remaining provisions shall be afforded full force and
effect as if such severed provision had never been a provision hereof.
16.8 NO WAIVER; CUMULATIVE REMEDIES. No consent or waiver,
express or implied, by any party to or of any breach or default by the other
in the performance by the other of its obligations hereunder shall be deemed
or construed to be a consent or waiver to or of any other breach or default
in the performance by such other party of the same or any other obligations
of such party hereunder. Except where contrary to the express terms herein,
the rights and remedies herein are cumulative to those that exist at law or
in equity and there shall be no implied waiver of such rights and remedies.
16.9 GOVERNING LAW. This Agreement shall be governed by,
subject to, and interpreted in accordance with the laws of the state of
Washington, without regard to conflict of laws principles. Each party hereby
submits to the exclusive jurisdiction of the courts of competent
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jurisdiction located in King County, Washington, with respect to any claim or
proceeding relating to this Agreement.
16.10 INJUNCTIVE RELIEF. The parties recognize and agree
that money damages are an inadequate remedy for breach of Sections 2.2 and/or
10, above, and further recognize that such breach would result in irreparable
harm to the party against whom such breach is committed. Therefore, in the
event of a breach or threatened breach of any such provision, the
non-breaching party shall be entitled to injunctive relief (without the
posting of any bond and without proof of actual damages) in order to prevent
or to restrain any such breach or threatened breach by the party in breach or
by any other persons directly or indirectly acting for, on behalf of, or with
the party in breach, and that neither the party in breach nor such other
persons will oppose the stipulations set forth in this Subsection or the
procedures for granting of such relief. Injunctive relief pursuant to this
Subsection shall be in addition to all remedies available at law or in equity
to a party arising from a breach of the provisions described above by the
other party.
16.11 LITIGATION EXPENSES. In any controversy, claim or
dispute arising out of, or relating to, this Agreement or the method and
manner of performance thereof or the breach thereof, the prevailing party
shall be entitled to recover from the other party, in addition to any other
relief, all of its reasonable costs and expenses, including without
limitation reasonable attorneys' fees, incurred in connection with such
controversy, claim, or dispute. If neither party wholly prevails, the party
that substantially prevails shall be awarded all of its reasonable costs and
expenses, including without limitation reasonable attorneys' fees, incurred
in connection with such controversy, claim, or dispute.
16.12 ENTIRE AGREEMENT; AMENDMENT. This Agreement, the
Support Services Agreement, the Nondisclosure Agreement, the Source Code
Escrow Agreement, the Roaming Service Agreement, each Market Purchase
Agreement issued hereunder, and all Schedules to the foregoing agreements,
contain the entire agreement and understanding between the parties with
respect to the subject matter hereof and supersede all prior agreements,
negotiations, representations, and proposals, written and oral, relating to
the subject matter. All Schedules and all other documents, when initialed by
the parties and attached hereto, are integral to and incorporated herein by
this reference. This Agreement and the Schedules attached hereto shall not
be deemed or construed to be modified, amended, or waived, in whole or in
part, except by written agreement duly executed by the parties to this
Agreement.
16.13 COUNTERPARTS. This Agreement may be signed in one or
more counterparts, each of which shall be considered an original and which
shall, taken together, constitute this Agreement.
16.14 BINDING EFFECT. Customer hereby warrants to CTS that
it has the power and authority to enter into this Agreement on its own behalf
and on behalf of the entities listed in the attached SCHEDULE C and to make
binding decisions under this Agreement on behalf of such entities.
EXECUTED as of the date set forth above.
CUSTOMER: CTS:
GTE MOBILNET OF CALIFORNIA CELLULAR TECHNICAL SERVICES
LIMITED PARTERNSHIP COMPANY, INC.
By GTE Mobilnet Incorporated
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Its General Partner
By /s/ Russ Patridge By /s/ Robert P. Dahut
----------------- -------------------
Russ Patridge Robert P. Dahut
----------------- -------------------
Print Name Print Name
Area President, California President and C.O.O.
- -------------------------- --------------------
Title Title
Customer's Address for Notices: CTS's Address for Notices:
- ------------------------------- --------------------------
4410 Rosewood Drive 2401 Fourth Avenue, Suite 808
Pleasanton, California 94588 Seattle, Washington 98121
Attention: Vice President/General Manager Attention: Legal Department
Telefax: (____)_______________ Telefax: (206) 443-1550
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INDEX OF SCHEDULES
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MASTER PURCHASE AND LICENSE AGREEMENT
SCHEDULE DESCRIPTION
---------- ----------------------
Schedule A Fees and Payment Terms
Schedule B CTS-Certified Hardware
Schedule C Market Areas
Schedule D Specifications
Schedule E Acceptance Test Plan
Schedule F Initial Training
Schedule G Technical Managers
Schedule H Nondisclosure Agreement
[*]
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SCHEDULE A
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FEES AND PAYMENT TERMS
Customer shall pay the following Fees and charges in connection with
the Master Purchase and License Agreement between CTS and Customer (the
"Agreement"), together with any other Fees and charges specified in the
Agreement. All undefined capitalized terms used in this Schedule shall have
the meanings ascribed to such terms as set forth in the Agreement.
1. LICENSE FEES.
1.1 INITIAL LICENSED PROGRAMS. In consideration for the
License, Customer shall pay the following Fees to CTS for the following
Licensed Programs in accordance with the terms of the Agreement and this
Schedule:
Licensed Programs(1) License Fees Per Cell Site
-------------------- --------------------------
[*]
Total: [*]
1.2 ADDITIONAL LICENSED PROGRAMS. For all additional
software, data tables, and programs which CTS and Customer agree in writing
to add to a System as Licensed Programs (other than the Licensed Programs
described in Subsection 1.1, above, and Section 3, below), Customer shall pay
such Fees to CTS as CTS and Customer mutually agree to in writing.
1.3 NEW RELEASES AND MAINTENANCE RELEASES. For all New
Releases and Maintenance Releases of the Licensed Programs described in
Sections 1.1, 1.2 and 3 of this Schedule, Customer shall pay such Fees to CTS
as specified in Subsection 2.3 of the Agreement.
- ----------
(1) Fees include pricing for the License to use Licensed Programs and for the
software performance warranty set forth in Subsection 11.2 of the Agreement.
Fees exclude pricing for license to use interdiction software, which is
specified in Section 3, below.
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2. HARDWARE FEES.
2.1 CELL SITE SYSTEM HARDWARE PURCHASED FROM CTS. In
consideration for the Hardware components purchased from CTS for installation in
Cell Sites, Customer shall pay CTS the following Fees in accordance with the
terms of the Agreement and this Schedule:
Hardware Description(2) Hardware Fees
----------------------- -------------
[*]
2.2 ADDITIONAL HARDWARE PURCHASED FROM CTS. Except as
otherwise provided in Sections 2.1 and 3 of this Schedule, Customer shall pay
CTS an amount equal to CTS's then-current list price for all Hardware
purchased from CTS.
2.3 HARDWARE PURCHASED FROM THIRD PARTIES. For all Hardware
purchased from Third Parties for a System (I.E., all Hardware other than the
Hardware purchased from CTS described in Sections 2.1, 2.2, and 3 of this
Schedule), Customer shall pay CTS an integration Fee equal to [*] of the
Third-Party supplier's list price for such Hardware.
3. FEES FOR INTERDICTION FUNCTIONALITY. In addition to the Fees set
forth in Sections 1 and 2, above, and in consideration for the license to use
certain software, and the sale of certain hardware, necessary to perform the
interdiction functionality for a given System, Customer shall pay the Fees set
forth below which pertain to the interdiction method utilized for such System:
Interdiction Method(3) Interdiction Fees
---------------------- -----------------
[* *
* *]
- -------------------------
(2) Fees include pricing for purchase of the Cell Site System Hardware and
for the hardware performance warranty set forth in Subsection 11.3 of
the Agreement with respect to such Cell Site System Hardware. Fees
exclude pricing for purchase of interdiction hardware, which is
specified in Section 3, below, and also excludes pricing for cabling
and other peripherals required for a given System.
(3) Fees include pricing for the license to use software, and the sale of
hardware, which directly pertain to the interdiction method utilized
for a given System. Fees exclude pricing for cabling and other
peripherals required for the interdiction method utilized. For any
other interdiction method utilized for a given System, Customer shall
pay such Fees to CTS as the parties mutually agree to in writing.
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4. DEPLOYMENT FEES.
4.1 DEPLOYMENT MANAGEMENT FEES. For the initial configuration
of the System within the Licensed Market including Cell Site expansion of such
System, Customer shall pay CTS a one-time deployment management Fee equal [*],
to be paid upon execution of the initial Market Purchase Agreement for such
System. In consideration for such deployment management Fee, CTS will provide
the following for the initial deployment for such System: (i) consulting
services for planning the initial configuration for such System and preparing an
itemized list of all Hardware for same; (ii) availability of one primary and one
back up technical manager for such System; as specified in Subsection 6.1 of the
Agreement; (iii) installation services for the installation of Hardware at each
regional processor site, as specified in Subsection 6.2 of the Agreement; and
(iv) training services for the initial PreTect-TM- User Training and Cell Site
System Overview Training sessions as specified in Subsection 8.1 and SCHEDULE F
of the Agreement. Any additional deployment management services by CTS will be
pursuant to such terms and subject to such Fees as CTS and Customer mutually
agree to in writing.
4.2 CELL SITE SYSTEM INSTALLATION FEES. At Customer's
request, CTS will install the initial configuration of Components at a
Cell Site in accordance with the terms of the Agreement. In
consideration for such installation services, Customer shall pay CTS an
amount equal to [*].
5. TRAINING FEES.
5.1 PRETECT-TM- USER TRAINING/CELL SITE SYSTEM OVERVIEW
TRAINING. As partial consideration for the deployment management Fees
described in Subsection 4.1, above, CTS will conduct the initial
PreTect-TM- User Training and Cell Site System Overview Training
sessions specified in Subsection 8.1 and SCHEDULE F of the Agreement
for each System.
5.2 INSTALLATION TRAINING. If Customer elects to perform its
own installation of Hardware at Cell Sites for the System within the Licensed
Market, as specified in the Agreement, Customer shall pay CTS [*], to be paid
upon execution of the initial Market Purchase Agreement for such System. In
consideration for such Fee, CTS will conduct the initial Cell Site System
Installation session as specified in Subsection 8.1 and SCHEDULE F of the
Agreement.
5.3 MAINTENANCE TRAINING. If Customer elects to perform its
own maintenance of Hardware at Cell Sites for the System within the Licensed
Market, as specified in the Support Services Agreement, Customer shall pay
CTS [*], to be paid upon execution of the initial Market Purchase Agreement
for such System. In consideration for such Fee, CTS will conduct the initial
Cell Site System Maintenance session as specified in Subsection 8.1 and
SCHEDULE F of the Agreement.
5.4 ADDITIONAL TRAINING. Additional training by CTS will be
pursuant to such terms and subject to such Fees as CTS and Customer mutually
agree to in writing.
6. SUPPORT SERVICE FEES. For each System, CTS will offer the
support services set forth in the Support Services Agreement (I.E., basic
support services, Hardware maintenance, System monitoring, and software
subscription services), subject to the fees and other charges set forth in
such Support Service Agreement and the Schedules attached thereto.
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7. REAL-TIME PREVENTION OF ROAMING CLONING FRAUD. For each System,
CTS will offer the services set forth in the Roaming Service Agreement, subject
to the fees and other charges set forth in such Roaming Service Agreement and
the Schedules attached thereto.
8. PRETECT-TM- GRAPHICAL USER INTERFACE. CTS and Customer agree
that, for each System, CTS will provide up to [*] PreTect-TM- Graphical User
Interface connections [*]. For each additional PreTect-TM- Graphical User
Interface connection for a System, Customer shall pay CTS a Fee equal to [*].
9. OTHER FEES. In addition to the Fees described above, Customer
agrees to pay CTS for the following charges [*]: (i) all travel, lodging, and
other out-of-pocket expenses incurred by CTS in connection with the Agreement;
and (ii) all services performed by CTS, other than those services for which
CTS's compensation is expressly set forth elsewhere in the Agreement or the
Schedules thereto, at the then-current billing rate of the CTS personnel
performing such services, plus all expenses incurred by CTS in connection with
such services (including without limitation all costs of materials, costs of
third-party contractors, and all travel, lodging, and other out-of-pocket
expenses), except as the parties otherwise agree to in writing.
10. PAYMENT TERMS.
10.1 COMPONENTS FOR SYSTEMS. For each deployment of
Components for a System, Customer shall pay the Fees described in Sections
1.1, 2.1, 2.2, and 3 above, to CTS as follows: (i) [*] of the aggregate of
such Fees shall be paid to CTS upon Customer's execution of the applicable
Market Purchase Agreement for such deployment, (ii) [*] of the aggregate of
such Fees shall be paid to CTS upon CTS's delivery of Components for the
deployment to a common carrier for shipment to Customer (if such deployment
involves multiple shipments, then such aggregate amount shall be paid on a
pro rata basis at the time of each shipment); and (iii) the remaining [*] of
the aggregate of such Fees shall be paid to CTS [*]; provided, however, that
[*] such [*] of the aggregate of such Fees shall be paid to CTS [*] as
specified in Subsection 7.1 of the Agreement.
10.2 OTHER PAYMENT TERMS. Except as otherwise expressly set
forth in the Agreement or any Schedule to the Agreement, CTS will invoice
Customer for amounts to be paid thereunder, and Customer will pay such
invoice within [*].
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SCHEDULE B
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MASTER PURCHASE AND LICENSE AGREEMENT
CTS-CERTIFIED HARDWARE
This Schedule contains a list of the Hardware certified by CTS for
purchase by Customer from certain Third Parties, approved in advance and in
writing by CTS, as more fully described in Subsection 3.2 of the Master
Purchase and License Agreement between CTS and Customer. All configurations
of such Hardware used for a given System must be approved in advance and in
writing by CTS.
1. Hewlett-Packard 9000 Series Processors and peripheral Hewlett-Packard
equipment. The models used for each System will vary depending on the
Hardware configuration used for such System.
2. CISCO Routers and peripheral CISCO equipment. The models used for
each System will vary depending on the Hardware configuration used
for such System.
3. X-terminal Workstations (CTS recommends Hewlett-Packard ENVIZEX
X-terminal workstations with a minimum of 8 MB of memory). Memory
requirements for workstations will vary depending on the
configuration used for a given System.
4. Hewlett-Packard LaserJet (IV or above) printer. Printer must carry
baseline memory (memory size dependent on model).
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SCHEDULE C
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MARKET AREAS
This Schedule contains a list of Customer's market areas for purposes of the
Master Purchase and License Agreement between CTS and Customer (the
"Agreement").
[*]
Market Areas Licensee Name
- ------------ -------------
[* *
* *
* *
* *
* *]
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SPECIFICATIONS
This Schedule contains the functional Specifications for a System as
required by the Master Purchase and License Agreement between CTS and
Customer (the "Agreement"). All undefined capitalized terms used in this
Schedule shall have the meanings ascribed to such terms as set forth in the
Agreement. Each overall System is comprised of one or more Regional
Processor Systems and Cell Site Systems.
BLACKBIRD-Registered Trademark- PLATFORM AND PRETECT-TM-
APPLICATION FUNCTIONAL OVERVIEW
Together, the Blackbird-Registered Trademark- Platform and PreTect-TM- form a
home market cloning prevention solution, in which the Blackbird-Registered
Trademark- Platform collects cellular phone data that PreTect-TM- measures
and uses to interdict analog cellular phone cloning attempts in real time.
BLACKBIRD-Registered Trademark- PLATFORM OVERVIEW
The Blackbird-Registered Trademark- Platform is the data collection and storage
platform for CTS's real time cellular fraud prevention applications.
Using hardware and software at the Cell Site System (CSS) and Regional Processor
(RP), the Blackbird-Registered Trademark- Platform collects and stores the
following cellular call data that form a cellular call event signature, or
"fingerprint":
- Radio frequency (RF) transmission characteristics: The subtle
differences between different cellular phones' RF signatures.
- Mobile Identification Number (MIN): The unique phone number assigned
a cellular phone.
- Electronic Serial Number (ESN): The unique number programmed into a
cellular phone during the manufacturing process.
- [*]
CTS designed the Blackbird-Registered Trademark- Platform as a platform for
delivery of a modular system of cellular fraud prevention applications. The
Blackbird-Registered Trademark- Platform Application Programming Interface (API)
facilitates seamless integration of current and future CTS products to meet the
changing fraud prevention requirements of its customers.
PRETECT-TM- OVERVIEW
PreTect-TM- is the real time cloning detection and interdiction application
designed to function on the Blackbird-Registered Trademark- Platform.
PreTect-TM- works to prevent cloning fraud.
Over time, PreTect-TM- uses the information collected and stored by the
Blackbird-Registered Trademark- Platform to build a unique fingerprint for each
analog cellular phone. PreTect-TM- also measures each call attempt transmitted
to a cell site against this fingerprint. This real time measurement process
allows PreTect-TM- to quickly determine whether the attempt originated from a
cloned analog cellular phone.
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Users access PreTect-TM- through a Graphical User Interface on Hewlett
Packard X-terminals or IBM PC-compatible computers running X-terminal
emulation software. Through the graphical user interface, users can [*]
Through the graphical user interface, users can configure PreTect-TM- to meet
the needs of daily operations on their cellular network:
- [*]
Finally, [*]. This allows customer service and fraud prevention departments to
better utilize the data storage and analysis capabilities of the
Blackbird-Registered Trademark- Platform/PreTect-TM- system:
- [*]
SYSTEM HARDWARE OVERVIEW
The Blackbird-Registered Trademark- Platform/PreTect-TM- system includes the
following hardware systems:
The Regional Processor(s) complex consists of one or more Regional Processors,
routers and other hardware necessary to store cellular call data and maintain
connectivity between the Cell Site System and regional processor system.
- Regional Processor: Typically a Hewlett Packard 9000 series processor
running the HP-UX operating system.
- Router: Typically a CISCO 7000 series router used to provide TCP/IP
Ethernet connectivity between the regional processor and each cell
site.
The Blackbird-Registered Trademark- Platform and PreTect-TM- software work with
the regional processor system to provide real-time call data collection, storage
and reporting. In addition, the Blackbird-Registered Trademark- Platform's
distributed real-time message processing allows distribution of fingerprint data
among multiple regional processor systems in large markets.
The Cell Site System (CSS) consists of the cell site processor, radios and other
equipment necessary to collect cellular call data, communicate with the regional
processor system and shut down, or interdict, cloning attempts. One CSS is
required for each cell site that uses the Blackbird-Registered Trademark-
Platform/PreTect-TM- system.
- Cell Site Processor (CSP): An industry-standard PC housed in an
industrial-grade metal enclosure, with a cellular modem for remote
network troubleshooting.
- Radio: Cellular radios which collect cellular call data directly from
the cell site antenna and transmit that data to the CSP without
interrupting cell site call traffic.
- Interdiction module: Hardware unit that performs interdiction of
cloning attempts upon command from the CSP. The interdiction module
will vary depending on the carrier's infrastructure type.
Blackbird-Registered Trademark- and PreTect-TM- software work with the CSS to
gather home market cellular call characteristics, relay information regarding
those characteristics to the regional processor when necessary, and perform
interdiction of cloning attempts.
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BLACKBIRD-Registered Trademark- PLATFORM/PRETECT-TM- PROCESS OVERVIEW
This diagram follows a cellular call attempt through the Blackbird-Registered
Trademark- Platform/PreTect-TM- system:
[FLOW CHART]
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ACCEPTANCE TEST PLAN
Set forth below is the Acceptance Test Plan described in Subsection
1.1 of the Master Purchase and License Agreement between CTS and Customer
(the "Agreement"). For purposes of this Acceptance Test Plan, all references
to "fraud" or "cloning fraud" shall mean analog cellular telephone cloning
fraud within the home market. All undefined terms used herein shall have the
meanings ascribed to such terms in the Agreement.
[*]
GOALS:
- - [*]
METHOD:
[*]
A. VIEW GRAPHICAL USER INTERFACE (GUI)
Goal:
[*]
Method:
- [*]
Approval:
Carrier Initial ____________ Date _________
CTS Initial ________________ Date _________
B. CALL EVENT DATA COLLECTION
Goal:
- [*]
Method:
- [*]
Deliverable:
- [*]
Approval:
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Carrier Initial ____________ Date _________
CTS Initial ________________ Date _________
C. REPORTS
Goal:
- [*]
Method:
[*]
Deliverable:
- [*]
Approval:
Carrier Initial ____________ Date _________
CTS Initial ________________ Date _________
D. CONTROL GROUP PHONE TESTING
D.1 FINGERPRINT ESTABLISHMENT
Goal:
- [*]
Method:
- [*]
Deliverable:
- [*]
Approval:
Carrier Initial ____________ Date _________
CTS Initial ________________ Date _________
D.2 VALID CALL TEST
Goal:
- [*]
Method:
- [*]
Deliverable:
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- [*]
Approval:
Carrier Initial ____________ Date _________
CTS Initial ________________ Date _________
D.3 COUNTERFEIT CALL TEST
Goal:
- [*]
Method:
- [*]
Deliverable:
- [*]
Approval:
Carrier Initial ____________ Date _________
CTS Initial ________________ Date _________
D.4 FALSE NEGATIVE CALL TEST
Goal:
- [*]
Method:
- [*]
Deliverable:
- [*]
Approval:
Carrier Initial ____________ Date _________
CTS Initial ________________ Date _________
E ADDITIONAL CELL SITE VERIFICATION
- [*]
E.1 NETWORK CONNECTIVITY
Goal:
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- [*]
Method:
- [*]
Deliverable:
- [*]
Approval:
Carrier Initial ____________ Date _________
CTS Initial ________________ Date _________
E.2 VALID CALL TEST
Goal:
- [*]
Method:
- [*]
Deliverable:
- [*]
Approval:
Carrier Initial ____________ Date _________
CTS Initial ________________ Date _________
E.3 COUNTERFEIT CALL TEST
Goal:
- [*]
Method:
[*]
Deliverable:
- [*]
Approval:
Carrier Initial ____________ Date _________
CTS Initial ________________ Date _________
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F ADDITIONAL REGIONAL PROCESSOR/APPLICATION SERVER ACCEPTANCE TEST
- [*]
F.1. NETWORK CONNECTIVITY
Goal:
- [*]
Method:
- [*]
Deliverable:
- [*]
Approval:
Carrier Initial ____________ Date _________
CTS Initial ________________ Date _________
F.2 APPLICATION SERVER REPORTING
Goal:
- [*]
Method:
- [*]
Deliverable:
- [*]
Approval:
Carrier Initial ____________ Date _________
CTS Initial ________________ Date _________
TERMS & DEFINITIONS
ACRONYM DESCRIPTION
[*]
CSS Cell Site System
RP Regional Processor
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FORMULAS
[*]
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INITIAL TRAINING
This Schedule contains the initial training classes for the initial
deployment of a System in a Licensed Market pursuant to the terms of the
Master Purchase and License Agreement between CTS and Customer (the
"Agreement"). All undefined capitalized terms used in this Schedule shall
have the meanings ascribed to such terms as set forth in the Agreement.
Each of the initial training classes are to be conducted at facilities
provided by Customer, in the License Market in which the System is installed.
Where a classroom environment is required Customer will need to include
adequate space for the number of participants, an overhead transparency
projector, and access, within a reasonable distance, to an X-terminal capable
of running the System's graphical user interface. Where a Cell Site
environment is required, Customer will need to provide adequate space such
that the number of participants are able to view, concurrently,
demonstrations of Cell Site Hardware installation or maintenance procedures.
Training sessions are to be held during normal business hours (local time),
up to approximately eight hours per day, on concurrent days.
A. PRETECT-TM- USER TRAINING
Participant Prerequisite: Previous professional experience within a
cellular carrier's operation identifying and/or resolving cases of cellular
fraud or working with the carrier's customer care organization.
Duration: Approximately four hours, to be conducted in one business day.
Facilities requirements: Classroom, as described above.
Maximum number of participants: [*]
Timing: To be conducted after installation of Regional Processor and at
least five Cell Site Hardware systems in the Licensed Market, and
end-to-end verification of System functionality by CTS.
Course Description: This course is targeted at carrier personnel who
currently work in the carrier's Fraud or Customer Care organizations.
This course shows PreTect-TM- users how to access information and perform
tasks using the PreTect-TM- graphical user interface. This includes an
overview of the functionality, pre-call detection, and interdiction.
Additional training topics include: querying the system by mobile
identification number (MIN) and destination, monitoring fingerprints,
and generating on-screen and print reports.
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B. CELL SITE SYSTEM TRAINING
The Cell Site System training will depend on whether Customer elects to
have CTS perform installation of Cell Site Components or elects to perform
such installation itself, as specified in the Agreement. If Customer
elects to have CTS perform such installation, CTS will provide the Cell
Site System Overview training described below. If Customer elects to
perform such installation itself, CTS will provide the Cell Site System
Installation training described below.
1. Cell Site System Overview
Participant Prerequisite: Demonstrated familiarity with PC-type hardware
systems. Previous experience working in the cell site environment
recommended.
Duration: Approximately four hours of classroom instruction. Observation
of installation of up to three Cell Site hardware systems. Cell site
observation to be conducted according to a mutually-agreed-upon schedule.
Facilities requirements: Classroom and cell site, as described above.
Maximum number of participants: Governed by cell site environment
restrictions, as described above.
Timing: To be conducted at a mutually agreed upon time.
Course Description: This course is targeted at carrier personnel who
currently work supporting the carrier's cell sites. The training includes
an overview of CSS hardware infrastructure, training in composition and
layout of CTS additions to cell sites, and a basic understanding of network
interfaces and problem solving techniques including the cell site
relationship to the regional processor.
2. Cell Site System Installation
Participant Prerequisite: Demonstrable skills installing and maintaining
PC-type hardware systems. Previous experience working in the cell site
environment recommended. [*]
Duration: Approximately four hours of classroom instruction.
Participation in installation of at least five Cell Site hardware systems,
with the Cell Sites selected including a representative sample of the
possible interfacing requirements (RF connection and networking). Cell
site training to be conducted according to a mutually-agreed-upon schedule.
Facilities requirements: Classroom and cell site, as described above.
Maximum number of participants: Governed by cell site environment
restrictions, as described above.
Timing: To be conducted after installation of Regional Processor, unless
the parties otherwise agree to in writing.
Course Description: This course is targeted at carrier personnel who
currently work supporting the carrier's cell sites. This includes an
overview of CSS hardware infrastructure, proper
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handling and installation of CSS components, and a basic understanding
of network interfaces and problem solving techniques.
Course Requirement: This CTS training session is required for all Customer
personnel who will be performing installation of Cell Site System hardware
at Cell Sites, until CTS makes available a "Train the Trainer" program to
enable Customer to train its own personnel for the installation of Cell
Site System hardware. When available, participation in the "Train the
Trainer" program will be required for up to two designated Installation
Trainers for Customer. Upon CTS certification, such Installation Trainers
will be responsible for training Customer personnel in accordance with the
CTS-provided curriculum for Cell Site System Installation training, and for
maintaining Installation Trainer certification in accordance with CTS
re-certification requirements. CTS will provide such "Train the Trainer"
program on such terms and for such training fees as CTS and Customer
mutually agree to in writing.
C. CELL SITE SYSTEM MAINTENANCE TRAINING
Participant Prerequisite: Cell Site System Installation training, as
described above. In addition, demonstrable skills repairing PC-type
hardware systems. Previous experience working in a cell site environment
recommended.
Duration: Approximately four hours of classroom training and eight hours
of on-the-job, participatory training in the cell site environment.
Facilities requirements: Classroom and cell site, as described above.
Maximum number of participants: Governed by cell site environment
restrictions, as described above.
Timing: To be conducted after installation of Regional Processor and at
least five Cell Site Hardware systems in the Licensed Market, and
end-to-end verification of System functionality, unless the parties
otherwise agree to in writing.
Course Description: This course is targeted at carrier personnel who
currently perform hardware repairs on cellular network equipment. The
course includes basic trouble-shooting techniques of the CSS environment,
proper handling of CSS hardware, and CSP component replacement.
Course Requirement: This CTS training session is required for all Customer
personnel who will be performing maintenance of Cell Site System hardware
at Cell Sites, until CTS makes available a "Train the Trainer" program to
enable Customer to train its own personnel for the maintenance of Cell Site
System hardware. When available, participation in the "Train the Trainer"
program will be required for up to two designated Maintenance Trainers for
Customer. Upon CTS certification, such Maintenance Trainers will be
responsible for training Customer personnel in accordance with the
CTS-provided curriculum for Cell Site System Maintenance training, and for
maintaining Maintenance Trainer certification in accordance with CTS
re-certification requirements. CTS will provide such "Train the Trainer"
program on such terms and for such training fees as CTS and Customer
mutually agree to in writing.
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SCHEDULE G
TO
MASTER PURCHASE AND LICENSE AGREEMENT
TECHNICAL MANAGERS - OVERALL COORDINATION
CTS TECHNICAL MANAGERS:
Primary: [*]
Cellular Technical Services Company, Inc.
2401 Fourth Avenue, Suite 808
Seattle, Washington 98121
[*]
Back Up: [*]
Cellular Technical Services Company, Inc.
2401 Fourth Avenue, Suite 808
Seattle, Washington 98121
[*]
Fax: (206) 443-1550
CUSTOMER TECHNICAL MANAGERS:
Primary: [*]
4410 Rosewood Drive
Pleasanton, California 94588
[*]
Back Up: [*]
4410 Rosewood Drive
Pleasanton, California 94588
[*]
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SCHEDULE H
TO
MASTER PURCHASE AND LICENSE AGREEMENT
NONDISCLOSURE AGREEMENT
Attached to this Schedule is a copy of the Nondisclosure Agreement dated as of
August 29, 1995, between Cellular Technical Services Company, Inc. and Customer.
MASTER PURCHASE AND LICENSE AGREEMENT PAGE 41
CONFIDENTIAL DISCLOSURE AGREEMENT
THIS AGREEMENT is effective as of August 29, 1995, by and between GTE
Mobilnet Service Corp., GTE Mobilnet of California Limited Partnership and
GTE Mobilnet of Santa Barbara Limited Partnership (hereinafter collectively
called "GTE") and Cellular Technical Services Company, Inc., having an
address at 2401 Fourth Avenue, Suite 803, Seattle, WA 98121 (hereinafter
called "CTS").
WHEREAS, each party wishes to disclose to the other party certain
information relating to its proprietary technology, some of which information
the transmitting party deems to be confidential, and trade secrets; and
WHEREAS, each party is willing to receive from the other party such
information for the purpose of evaluating whether the parties wish to enter
into a business relationship between CTS and GTE, (the "Project").
NOW THEREFORE, in consideration of the foregoing premises and the mutual
covenants and promises herein contained, the parties hereto agree as follows:
1. This Agreement shall terminate upon completion of the Project or four
(4) years from the effective date first stated above, whichever occurs first.
2. Confidential Information, as used herein, shall mean: (a) written or
documentary information which (i) relates to the above identified subject
matter, (ii) is received by one party directly or indirectly from the other
party, and (iii) is marked "Confidential" or "Proprietary Confidential", or
bears a marking of like import, or which one party states in writing at the
time of transmittal to or receipt by the other party is to be considered
confidential; and, (b) orally disclosed information which relates to the
above identified subject matter and which the transmitting party, within
twenty (20) days after the first oral disclosure thereof, confirms in a
writing delivered to the receiving party the confidential nature of such
orally disclosed information. Such writing shall be sufficiently specific to
enable the receiving party to identify the information considered to be
confidential. The transmitting party shall have the right to correct any
inadvertent failure to designate information as confidential or proprietary
by written notification to the receiving party as soon as practical (but in
no event later than ten (10) business days) after such error is determined by
the transmitting party. Upon receipt of such notification, the receiving
party shall, from that time forward, treat such information as Confidential
Information in accordance with this Agreement.
3. The term "Trade Secrets" as used in this Agreement shall mean
Confidential Information that:
(i) derives economic value, actual or potential, from not being
generally known to, and not being readily ascertainable by proper means by,
other persons who can obtain economic value from its disclosure or use; and
(ii) is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy.
4. The terms "Confidential Information" and "Trade Secrets" do not
include, and the receiving party shall have no obligation with respect to
information, which:
(i) is already known to the receiving party at the time of the first
disclosure thereof to the receiving party as evidenced by prior documentation
or other tangible embodiments of such information thereof; or
(ii) is or becomes publicly known through no wrongful act of the
receiving party; or
(iii) is rightfully received by the receiving party from a third party
without restriction and without breach of this or any other Agreement, or
(iv) is approved for release by written authorization of an officer
of the transmitting party at the vice president level or higher.
The receiving party shall have the burden of proving the existence of any of
the exclusions described in this Section 4.
5. The Parties acknowledge and agree that as part of the evaluation of
the Project, the parties will obtain and have access to Confidential
Information and Trade Secrets of the other party and that the
misappropriation, unauthorized use or disclosure of such Confidential
Information or Trade Secrets would cause irreparable harm to the parties
to this Agreement. The parties agree to use the same degree of care to avoid
and prevent disclosure of any party's Confidential Information and Trade
Secrets as each party uses to prevent disclosure of its own Confidential
Information and Trade Secrets of a similar nature (which is in any event no
lesser standard than that which a reasonable person or business would utilize
with respect to its own similar trade secrets or confidential information).
6. With respect to any Confidential Information, each party agrees that
following the disclosure of Confidential Information pursuant to this
Agreement, they shall not directly or indirectly use for any purpose
whatsoever or disclose any Confidential Information that the parties may have
or acquire in connection with the Project except as authorized in writing by
an officer (at the vice president level or higher) of the party to whom the
Confidential Information belongs.
7. With respect to any Trade Secrets, each party agrees not to use for
any purpose whatsoever or disclose the Trade Secrets of the other party at
any time hereafter except as authorized herein or until such Trade Secrets
become generally available to the public by independent discovery or
development or publication. The rights of the parties to protection of their
Trade Secrets in this Agreement are in addition to the rights which the
parties have under common or statutory law for the protection of Trade
Secrets.
8. The parties to this Agreement agree to disclose the other party's
Confidential Information or Trade Secrets only to their own employees and
affiliates directly involved in the evaluation of the Project with a need to
know. The receiving party shall be responsible for the failure of any of its
employees or affiliates to fully comply with all provisions of the Agreement.
Neither party hereto shall, internally or in conjunction with any other
person, reverse engineer, reverse compile or reverse assemble the
Confidential Information or Trade Secrets of the other party, or use such
Confidential Information or Trade Secrets for its own benefit or for the
benefit of others, for any purpose other than the purposes expressly
authorized herein in connection with the evaluation of technology described
in the Whereas Clauses, above. For purposes of this Agreement, the term
"affiliate" shall mean any corporation, firm, partnership or other legal
entity which is owned or controlled by any of the parties hereto to the
extent of equal to or more than fifty percent (50%) of the equity interest
having the power to vote on or otherwise to direct affairs of the entity. The
party disclosing to an affiliate any Confidential Information and/or Trade
Secrets shall notify the affiliate of its obligations under this Agreement.
Each of the undersigned GTE entities shall be jointly and severably liable for
any breach of this Agreement by an affiliate of any of the undersigned GTE
entities.
9. The parties to this Agreement agree that all Confidential Information
or Trade Secrets of the transmitting party are the exclusive property of such
party and agree promptly to return to such party upon demand, all such
Confidential Information or Trade Secrets and copies thereof, furnished under
this Agreement which is either received in or reduced to material form.
10. Nothing contained in this Agreement shall be construed as (i)
requiring a party to disclose, or to accept, any particular information, or
(ii) granting to the receiving party a license, either express or implied,
under any patent, copyright, trade secret, or other intellectual property
rights now or hereafter owned, obtained, or licensable by the other party.
11. Except as otherwise provided in this Agreement, all notices required
or permitted to be given hereunder shall be in writing and shall be valid and
sufficient if dispatched by certified or registered mail, postage prepaid, in
any post office in the United States, by recognized courier, or
hand-delivered, addressed as follows:
If to CTS:
Attn.: Legal Department
Cellular Technical Services Company, Inc.
2401 Fourth Avenue, Suite 803
Seattle WA 98121
If to GTE:
GTE Mobilnet of California Limited Partnership, GTE Mobilnet
of Santa Barbara Limited Partnership and GTE Mobilnet
Service Corp.
Attn.: Vice President/General Manager
4410 Rosewood Drive
Pleasanton, CA 94588
cc: Regional Counsel
4410 Rosewood Drive
Pleasanton, CA 94588
Either party hereto may change its address by a notice given to the other
party in the manner set forth above. Notices given as herein provided shall
be considered to have been received 5 days after mailing thereof, or when
actually received, whichever occurs first.
12. Neither party under this Agreement shall publicly announce or disclose
the existence of this Agreement, or its contents, any discussions relating
thereto, or the discussions of the business relationship being considered,
without the prior consent of the other party or except as may be required by
law, in which case the party required to make disclosure shall give the other
party the maximum feasible prior notice of such disclosure.
13. The provisions of Paragraph 12 of this Agreement and the provisions of
this Agreement concerning nondisclosure and use of Confidential Information
and Trade Secrets shall survive the expiration or termination of this
Agreement.
14. This Agreement expresses the entire agreement and understanding
between the parties respecting the subject matter hereof and shall not be
modified except by a writing signed by authorized representatives of the
parties on or after the date hereof.
15. The persons executing this Agreement for and on behalf of the parties
hereto represent that they are fully authorized to do so for and on behalf of
their respective principals.
16. The parties hereto recognize and agree that money damages are an
inadequate remedy for breach of this Agreement by the receiving party and
further recognize that breach of this Agreement by the receiving party would
result in irreparable
harm to the transmitting party. Accordingly, in the event of a breach or
threatened breach by the receiving party, the receiving party may be enjoined
from engaging in any activity prohibited by this Agreement by injunction
issued by a court of competent jurisdiction. In any suit, proceeding or
action to enforce any term, condition or covenant of this Agreement or to
procure an adjudication or determination of the rights of the parties hereto,
the prevailing party shall be entitled to recover from the other party
reasonable sums as attorneys' fees and costs and expenses in connection with
such suit, proceeding or action, including actions taken prior to a lawsuit,
and including an appeal, which sums shall be included in any judgment or
decree entered therein. If neither party wholly prevails, the party that
substantially prevails shall be awarded reasonable attorneys' fees and
related costs and expenses.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the effective date first written above.
CELLULAR TECHNICAL SERVICES COMPANY, INC.
By: /s/ Kyle R. Sugamele
---------------------------------------------------
Title: Vice President and General Counsel
------------------------------------------------
Date:
------------------------------------------------
GTE MOBILNET SERVICE CORP.
By: /s/ Benjamin E. Kahrnoff
---------------------------------------------------
Title: Vice President/General Manager-California Region
------------------------------------------------
Date:
------------------------------------------------
GTE MOBILNET OF CALIFORNIA LIMITED PARTNERSHIP by GTE MOBILNET
INCORPORATED, its GENERAL PARTNER
By: /s/ Benjamin E. Kahrnoff
---------------------------------------------------
Title: Vice President/General Manager-California Region
------------------------------------------------
Date:
------------------------------------------------
GTE MOBILNET OF SANTA BARBARA LIMITED PARTNERSHIP by GTE
MOBILNET INCORPORATED, its GENERAL PARTNER
By: /s/ Benjamin E. Kahrnoff
----------------------------------------------------
Title: Vice President/General Manager-California Region
-------------------------------------------------
Date:
-------------------------------------------------
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[*]