Agreement No. ###-##-####
EXECUTION COPY
SERVICES AGREEMENT
BETWEEN VERIZON WIRELESS
AND
CELLULAR TECHNICAL SERVICES COMPANY, INC.
CONFIDENTIAL
EXECUTION COPY
contract #176-01-024
TABLE OF CONTENTS
ARTICLE I. TERMS AND CONDITIONS APPLICABLE TO THE ENTIRE AGREEMENT...............1
1.1 DEFINITIONS..............................................................1
1.2 SCOPE....................................................................6
1.3 TERM AND TERMINATION.....................................................6
1.4 TESTIMONY................................................................9
1.5 PAYMENT..................................................................9
1.6 NOTICE..................................................................11
1.7 LAWS, RULES AND REGULATIONS.............................................12
1.8 PROFESSIONALISM.........................................................12
1.9 INSURANCE...............................................................12
1.10 INDEPENDENT CONTRACTOR..................................................13
1.11 VERIZON WIRELESS' PROPERTY..............................................13
1.12 CTS PROPERTY............................................................14
1.13 INFRINGEMENT............................................................14
1.14 PLANT RULES AND SECURITY REQUIREMENTS...................................15
1.15 USE AND OWNERSHIP OF INFORMATION........................................15
1.16 PUBLICITY...............................................................16
1.17 GOVERNING LAW...........................................................16
1.18 LITIGATION EXPENSES.....................................................16
1.19 ASSIGNMENT..............................................................16
1.20 WAIVER..................................................................17
1.21 AUDIT...................................................................17
1.22 SUBCONTRACTING..........................................................17
1.23 ARTICLE HEADINGS........................................................17
1.24 SEVERABILITY............................................................17
1.25 WARRANTIES..............................................................17
1.26 INDEMNIFICATION.........................................................20
1.27 FORCE MAJEURE...........................................................21
1.28 BUSINESS CONDUCT........................................................21
1.29 NO WAIVER, CUMULATIVE REMEDIES..........................................21
ARTICLE II. SUPPORT SERVICES....................................................22
2.1 SCOPE OF COVERAGE.......................................................22
2.2 TECHNICAL SUPPORT SERVICES..............................................22
2.3 SOFTWARE SUBSCRIPTION SERVICES..........................................25
2.4 CELL SITE HARDWARE MAINTENANCE..........................................25
2.5 BLACKBIRD PLATFORM MONITORING SERVICES..................................27
2.6 BACKUP & RESTORE SUPPORT SERVICES.......................................27
2.7 ADDITIONAL VERIZON WIRELESS RESPONSIBILITIES............................28
ARTICLE III. ROAMING PROTECTION SERVICES .......................................31
3.1 THE SERVICE.............................................................31
3.2 MAINTENANCE OF CTS NETWORK..............................................32
3.3 ADDITIONAL VERIZON WIRELESS RESPONSIBILITIES............................32
ARTICLE IV. SOFTWARE LICENSE ...................................................34
4.1. LICENSE OF SOFTWARE.....................................................34
4.2 SOURCE CODE.............................................................35
4.3 PROPRIETARY RIGHTS......................................................35
Verizon Wireless/CTS Agreement CONFIDENTIAL
ARTICLE V. ENTIRE AGREEMENT.....................................................37
5.1 ENTIRE AGREEMENT........................................................37
5.2 COUNTERPARTS............................................................37
5.3 SIGNATURES..............................................................37
LIST OF EXHIBITS................................................................38
EXHIBIT A....................................................................39
EXHIBIT B ...................................................................40
EXHIBIT C....................................................................41
EXHIBIT D....................................................................45
Verizon Wireless/CTS Agreement CONFIDENTIAL
SERVICES AGREEMENT
This Agreement is entered into as of January 1, 2001, by and between CELLULAR
TECHNICAL SERVICES COMPANY, INC., a Delaware corporation ("CTS"), and CELLCO
PARTNERSHIP, a Delaware general partnership, doing business as VERIZON WIRELESS
("Verizon Wireless ").
WHEREAS, Verizon Wireless, successor-in-interest to GTE Wireless Service
Corporation ("GTE"), and CTS entered into a certain Agreement pursuant to which
CTS provided certain services for certain software and hardware to GTE; and
WHEREAS, Verizon Wireless, successor-in-interest to Cellco Partnership, doing
business as Bell Atlantic Mobile ("BAM"), and CTS entered into a certain
Agreement pursuant to which CTS provided certain services for certain software
and hardware to BAM; and
WHEREAS, Verizon Wireless, successor-in-interest to AirTouch Cellular, Inc,
("AirTouch") and CTS entered into a certain Agreement pursuant to which CTS
provided certain services for certain software and hardware to AirTouch; and
WHEREAS, Verizon Wireless, successor-in-interest to New Par ("NP"), and CTS
entered into a certain Agreement pursuant to which CTS provided certain services
for certain software and hardware to NP; and
WHEREAS, Verizon Wireless, successor-in-interest to AirTouch Cellular of Georgia
("ATCG"), and CTS entered into a certain Agreement pursuant to which CTS
provided certain services for certain software and hardware to ATCG; and
WHEREAS, CTS and Verizon Wireless desire to enter into a new Agreement to
supersede the prior agreements with GTE, BAM, AirTouch, NP and ATCG, each a
prior company ("Prior Company") to continue the services provided under the
various agreements with the Prior Companies under the terms and conditions
stated herein; and
WHEREAS, CTS and Verizon Wireless agree that CTS will provide certain services
for certain software and hardware as more fully described in the Agreement on
the terms and conditions set forth below.
NOW, THEREFORE, 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 Verizon Wireless
hereby agree as follows:
ARTICLE I. TERMS AND CONDITIONS APPLICABLE TO THE ENTIRE AGREEMENT
1.1 DEFINITIONS.
Whenever used in this Agreement with initial letters capitalized, the
following terms shall have the following meanings:
1.1.1 "Aggregate Fee" means the monies required to be paid by Verizon
Wireless to CTS in connection with the transactions contemplated in
this Agreement, as set forth in Section 1.5.3 below.
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Verizon Wireless/CTS Agreement CONFIDENTIAL
1.1.2 "Agreement" means this Agreement and any attached schedules,
together with all amendments and supplements which may be made
thereto from time to time by mutual agreement of the parties.
1.1.3 "Call Data" means the combination of: (i) the industry standard
digital data derived from the radio frequency call event
originating from a telecommunications carrier's cellular network;
and (ii) the CTS-proprietary digital data resulting from the
measuring, processing, and formatting of information derived from
such radio frequency call event as performed by a System.
1.1.4 "Cell Site" means a cellular radio base station location consisting
of radio, antenna, and power equipment: (i) that provides cellular
telecommunications service to a particular geographic area; (ii) in
which certain Components of a System are installed; (iii) that
complies with the Infrastructure and Environmental Requirements;
and (iv) in which a direct antenna frame hook-up is provided by
Verizon Wireless for the Cell Site Hardware installed therein..
1.1.5 "Cell Site Hardware" means the CTS-proprietary Hardware which is
supplied by CTS for installation in Cell Sites.
1.1.6 "Component" means an individual item of the Hardware or Licensed
Programs.
1.1.7 "Confidential Information" shall have the same meaning ascribed to
such term in the Nondisclosure Agreement.
1.1.8 "Connected System" means each System (as defined below) within the
United States which is connected to the CTS Network in accordance
with the terms of this Agreement and for which CTS provides Service
for such System.
1.1.9 "CTS Network" means the CTS network that (i) is comprised of CTS
proprietary and non-proprietary computer equipment (including
without limitation the On-Site Hardware), software, and networking,
(ii) performs the Service, and (iii) to which one or more Systems
are or will be connected in accordance with this Agreement.
1.1.10 "Customization" means any modification, enhancement, or improvement
to any Licensed Program that is made by CTS at the request of
Verizon Wireless in accordance with this Agreement, and which is
not made generally commercially available by CTS to other cellular
carrier licensees of CTS in the United States.
1.1.11 "Documentation" means CTS's standard user manual(s) for a Licensed
Program and all other written documentation for a System that CTS
furnishes or has furnished to Verizon Wireless for purposes of this
Agreement (as such documentation may be reasonably modified or
updated from time to time by CTS with notice to Verizon Wireless).
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 Verizon Wireless.
1.1.12 "Verizon Wireless Facility" means each Regional Processor Complex,
Cell Site, or other location within a Licensed Market at which any
Component of a System is installed.
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Verizon Wireless/CTS Agreement CONFIDENTIAL
1.1.13 "Governing Agreements" means this Agreement and all Schedules and
attachments to any of the foregoing.
1.1.14 "Hardware" means the following with respect to the System 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) agreed by
CTS and Verizon Wireless to be necessary to operate the
configuration of such System as of the date hereof; and (ii) any
additional computer equipment and peripherals as CTS and Verizon
Wireless may, from time to time, agree in writing to add to such
System as Hardware.
1.1.15 "Hardware Documentation" means the design specifications setting
forth the information required to enable a reasonably skilled
hardware manufacturer to make the Cell Site Hardware.
1.1.16 "Infrastructure and Environmental Requirements" means the physical,
electrical, connectivity, and other infrastructure and
environmental requirements described in Documentation furnished by
CTS to Verizon Wireless (as the same may be reasonably modified or
updated from time to time by CTS with notice to Verizon Wireless),
which requirements are to be satisfied by Verizon Wireless at each
Verizon Wireless Facility at which any portion of the CTS Network
is installed in accordance with this Agreement.
1.1.17 "Intellectual Property Rights" means any valid patent, copyright,
trade secret, trademark, or other intellectual property right.
1.1.18 "License" shall have the meaning ascribed to such term as set forth
in Section 3.1.2 and 3.1.3 below, with respect to each Connected
System, or the license granted to Verizon Wireless under Section
4.1.1 below.
1.1.19 "License Agreement" means Article IV, hereto.
1.1.20 "Licensed Market" means for each of the market areas identified in
the attached Exhibit B, the aggregate of the corresponding cellular
service areas identified in such Exhibit that are covered by a
System; and any additional market areas as Verizon Wireless may,
from time to time, determine with the prior written approval of
CTS.
1.1.21 "Licensed Programs" means the following with respect to each System
installed in a given Licensed Market: (i) the CTS-owned computer
software (including firmware and patches), in object code form
only, and any Third-Party Software, in object code form only,
described on Exhibit C hereto; (ii) all New Releases, Maintenance
Releases, and Customizations provided by CTS to Verizon Wireless
for such System; and (iii) any additional software, data tables,
and programs as CTS and Verizon Wireless may, from time to time,
agree in writing to add to such System as Licensed Programs.
1.1.22 "Maintenance Release" means a correction of errors, bugs, or
defects in any Licensed Program that 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 a Licensed Program.
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Verizon Wireless/CTS Agreement CONFIDENTIAL
1.1.23 "New Release" means any computer program or portion thereof which
involves any modification, enhancement, or improvement to any
Licensed Program 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.
1.1.24 "Nondisclosure Agreement" means that certain Nondisclosure
Agreement of even date herewith between CTS and Verizon Wireless
(the "Current NDA"), and to the extent not inconsistent therewith,
includes any other nondisclosure agreements (including any
amendments or supplements to such agreements) between CTS and any
of the Prior Companies or any affiliate thereof. A copy of the
Current NDA is attached hereto as Exhibit D.
1.1.25 "Normal Business Hours" means from 6:00 a.m. to 5:00 p.m., Seattle
time, Monday through Friday, excluding CTS holidays.
1.1.26 "On-Site Hardware" means the following with respect to a Connected
System: (i) the equipment and peripherals (including any software
bundled with such equipment by CTS or the equipment manufacturer)
for each System for which the Service is being provided in such
quantities as CTS and Verizon Wireless agree are necessary to
enable CTS to perform the Service for such System; and (ii) any
additional equipment and peripherals as CTS and Verizon Wireless
may, from time to time, agree in writing to add to this Agreement
as On-Site Hardware.
1.1.27 "Priority 1 Incident" means any condition where (i) a System is
completely out of service (i.e., the System is completely down and
is not capable of making any counterfeit-valid call decisions and
RF fingerprint collections) or where the PreTect Graphical User
Interface for a System is completely out of service for more than
two (2) consecutive hours, and (ii) the source of the problem is a
Regional Processing Complex (RP, AS, Gateway or Cisco Router).
1.1.28 "Priority 2 Incident" means any condition where a System is up, but
there is partial loss of functionality (i.e., the System is
working, but there is partial loss of data communication). For
example, any condition where the Cell Site Hardware at any Cell
Site is completely out of service is a Priority 2 Incident.
1.1.29 "Priority 3 Incident" means all conditions other than Priority 1
Incidents and Priority 2 Incidents that affect a System (i.e.,
anomalous System condition that does not impact the System's
overall ability to collect data, make counterfeit-valid call
decisions, or terminate counterfeit calls).
1.1.30 "Regional Processor Complex" means each Verizon Wireless location
at which regional processors for a System are installed.
1.1.31 "Roaming Agreement" means that certain Article III, hereto.
1.1.32 "Service User" means a telecommunications carrier which: (i)
operates one or more systems comprised of the CTS Blackbird'r'
Platform and PreTect'TM' fraud prevention application, pursuant to
a written agreement between such carrier and CTS, and (ii)
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Verizon Wireless/CTS Agreement CONFIDENTIAL
has authorized CTS to transmit Call Data to and from such carrier
and to otherwise perform the Service, pursuant to a written
agreement between such carrier and CTS.
1.1.33 "Source Code" means the source code form of the Licensed Programs,
in a form suitable for reproduction by computer or photocopy
equipment, and all material enhancements, modifications, revisions,
and other changes thereto.
1.1.34 "Specifications" means the specifications for a System as set forth
in the attached Exhibit C.
1.1.35 "Support Services" shall have the same meaning ascribed to such
term in Section 2.1 below.
1.1.36 "Support Services Agreement" means that certain Article II, hereto.
1.1.37 "Supported Products" means the following for a given System: (i)
the Licensed Programs; (ii) the Cell Site Hardware; and (iii) any
CTS-certified Hardware that CTS agrees in writing to support under
the terms of this Agreement and the applicable support service
terms provided by the manufacturer of such Hardware.
Notwithstanding the above, if CTS publishes a New Release, then
only that release and the immediately preceding release (and no
versions older than the immediately previous release) will be
eligible for coverage under this Agreement; provided, that CTS will
support the most current release of the Licensed Programs as of the
date of this Agreement and each New Release subsequently provided
under this Agreement for no less than six (6) months from the date
that such release is provided to Verizon Wireless.
1.1.38 "Support Contacts" shall have the meaning ascribed to such term in
Section 2.7.1 below.
1.1.39 "System" shall mean the combination of the Hardware and Licensed
Programs configured and installed for use by Verizon Wireless
within a designated Licensed Market in accordance with the terms of
this Agreement.
1.1.40 "Third Party" means any person or entity other than CTS, Verizon
Wireless, or a person, association, partnership, corporation or
joint stock company or trust that directly or indirectly, through
one or more intermediaries, controls, is controlled by, or is under
common control with, the Verizon Wireless. For purposes of the
above definition, "control" means: (i) ownership of a majority of
the voting power of all classes of voting stock; (ii) ownership of
a majority of the beneficial interests in income and capital of an
entity other than a corporation; (iii) ownership of a general
partnership interest in a limited partnership; or (iv) ownership of
a managing partnership interest in a general partnership.
1.1.41 "Third-Party Software" means the following with respect to a given
System: (i) the computer programs described on Exhibit C hereto
that are licensed to CTS by Third Parties and that CTS sublicenses
to Verizon Wireless, 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
Verizon Wireless may, from time to time, agree in writing to add to
such System as Third-Party Software.
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Verizon Wireless/CTS Agreement CONFIDENTIAL
1.2 SCOPE.
1.2.1 CTS will provide the services described in this Agreement on the
terms and conditions set forth below ("Services").
1.2.2 All Services shall be performed in strict conformity with any oral
or written instructions furnished to CTS by Verizon Wireless,
provided that such instructions do not conflict with the terms of
this Agreement. CTS will devote such time, efforts and resources to
the performance of Services as are reasonably necessary to
accomplish the tasks specified in this Agreement.
1.2.3 Status of Systems.
CTS and Verizon Wireless agree and acknowledge that (i) the current
configuration of each System are defined in the most recent
agreement, in each case, between CTS and each of the Prior
Companies, and such configuration is incorporated herein, (ii) all
Cell Sites and Cell Site Hardware have been paid for and accepted,
and (iii) common names for each Licensed Market will be used (e.g.,
the former BAM-NY market), and that Cell Sites and Regional
Processing Centers shall remain in their current locations.
1.2.4 Supply of Hardware.
Verizon Wireless may purchase quantities of CTS-certified Hardware
either from CTS or Third Parties approved in advance and in writing
by CTS, subject to the terms of this Agreement. Certain
CTS-certified Hardware purchased from Third Parties will be subject
to an integration fee. Upon request, CTS shall furnish a list of
CTS-certified Hardware and may update such list from time to time
with written notice to Verizon Wireless. 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.
1.3 TERM AND TERMINATION.
1.3.1 Term.
The term of this Agreement will commence on the date of this
Agreement and will continue thereafter for an initial term ending
on December 31, 2001. This Agreement may be extended by Verizon
Wireless for a one-year term as follows: such extension (i) shall
cover only Verizon Wireless' West Coast markets and shall include a
maximum of 600 Cell Sites, (ii) Support Services shall be provided
by CTS for a fee of $1,725,000, which fee shall be due and payable
in full on January 1, 2002, (iii) Verizon Wireless must give
written notice of it intent to exercise such renewal option no
later than September 30, 2001, and (iv) is subject to CTS and
Verizon Wireless agreeing on additional reductions in CTS'
technical support coverage for the renewed markets. All other terms
and conditions hereof shall remain in effect during any renewal
term, except as the parties otherwise expressly agree to in
writing. CTS and Verizon Wireless agree to negotiate in good faith
to expand the coverage to sites in excess of 600 for 2002. Such
contract renegotiation (including fees and services to be provided)
will take into account geographic and market coverage for all of
CTS' Blackbird Verizon Wireless' and CTS' costs of continuing its
services for 2002. All
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Verizon Wireless/CTS Agreement CONFIDENTIAL
other 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
as set forth under Section 1.3.2 below.
1.3.2 Termination
a. This Agreement may be terminated in the Event of a Default or
material breach of this Agreement by CTS. Any of the following
shall be considered an "Event of Default":
o CTS is adjudged bankrupt or insolvent; or
o CTS makes a general assignment for the benefit of its
creditors; or
o A trustee or receiver is appointed for CTS or for any of its
property; or
o Any petition by or on behalf of CTS is filed to take advantage
of any debtor's act or to reorganize under the bankruptcy or
similar laws; or
o CTS otherwise violates any material provision of this
Agreement, as defined in (b), below.
b. 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 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 Article IV,) 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 the Aggregate Fee or other
charges when due hereunder shall constitute a "material breach"
of this Agreement.
c. 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 Verizon Wireless violates
any of the provisions of Article IV, in any way without the
prior written consent of CTS, and Verizon Wireless fails to cure
such violation within (3) days after CTS's delivery of notice of
breach to Verizon Wireless; or (ii) at the option of either
party if the other party materially violates the provisions of
the Nondisclosure
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Verizon Wireless/CTS Agreement CONFIDENTIAL
Agreement, and such violation cannot be or is not cured in a
manner contemplated in the Nondisclosure Agreement.
1.3.3 Effect of Expiration or Termination.
a. Following the expiration or termination of this Agreement,
Verizon Wireless shall have the right to use the Licensed
Programs and Documentation as provided under the License with
respect to the configuration of Systems installed as of the
expiration or termination of this Agreement, until the first to
occur of any of the following: (i) if this Agreement is
terminated pursuant to Sections 1.3.2 due to a breach or default
by Verizon Wireless, then the License shall cease upon
termination of this Agreement; or (ii) if this Agreement expires
or is terminated pursuant to Section 1.3.2 due to a breach or
default by CTS, then the License shall continue under the
survival terms described in Section 1.3.5 until breach or
default by Verizon Wireless and the expiration of any applicable
cure period with respect to such breach or default.
b. Upon the expiration or termination of this Agreement, Verizon
Wireless shall immediately cease use of the Confidential
Information of CTS (excluding copies of Licensed Programs and
Documentation in Verizon Wireless' possession as of such
expiration or termination, which Verizon Wireless may retain and
use for the duration of the License pursuant to this Section
1.3.3, for the sole purpose of supporting then-installed
Systems) 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, Verizon Wireless
shall immediately return or destroy all copies of Licensed
Programs and Documentation retained for use pursuant to this
Section 1.3.3 in accordance with the procedures set forth in
this subsection.
c. Upon the expiration or termination of this Agreement, CTS shall
immediately cease use of the Confidential Information of Verizon
Wireless (except as the parties otherwise expressly agree to in
writing) and shall, at Verizon Wireless' election, either: (i)
return to Verizon Wireless 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
Verizon Wireless, or (ii) furnish to Verizon Wireless a
certified executed document stating that the same has been
destroyed.
1.3.4 Duties Upon Termination.
a. All accrued and unpaid Fees and other charges hereunder shall be
immediately due and payable upon 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.
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Verizon Wireless/CTS Agreement CONFIDENTIAL
b. Following the expiration or termination of this Agreement, CTS
shall promptly remove all components of the CTS Network located
at Verizon Wireless Facilities, and Verizon Wireless shall
cooperate with CTS and provide CTS with such access to Verizon
Wireless Facilities as CTS reasonably requires for the purpose
of removal of all such components.
1.3.5 Survival Terms.
Upon termination of this Agreement, all obligations of the parties
hereunder shall cease, except those obligations described in
Sections 1.3.2, 1.3.3, 1.3.4, 1.4, 1.5, 1.18, 1.25.9, 1.25.10,
1.26, 4.1.2 and 5.1 , 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.
1.4 TESTIMONY.
Matters relating to this Agreement may be in issue before various
regulatory or judicial bodies. CTS agrees to have appropriate
members of its firm, including senior members, willing to testify
at appropriate times and reasonable fees regarding any aspect of
this Agreement as known to CTS.
1.5 PAYMENT.
1.5.1 The cost to Verizon Wireless for the performance of the Services
shall be payable in accordance with the terms of Sections 1.5.3 and
1.5.4, below.
1.5.2 All invoices from CTS to Verizon Wireless shall be sent to Verizon
Wireless at the address indicated in this Agreement and must
include the Contract number. CTS's last invoice submitted shall be
marked "FINAL."
1.5.3 Aggregate Fee.
a. In consideration for the services provided by CTS hereunder,
including all Base Support Fees, Blackbird Platform Monitoring
Services Fees, Backup & Restore Support Services Fees and Frame
Relay Fees as selected on Exhibit A, and under the License
Agreement and the Roaming Agreement, Verizon Wireless hereby
agrees to pay the amount of $4,275,000, which Aggregate Fee
shall be invoiced as follows: $2,275,000 due upon execution of
this Agreement, and $2,000,000 due June 1, 2001. Verizon
Wireless will also pay CTS for re-marketed HP and Cisco support
services as defined in Section 2.4.2(d), below.
b. Verizon Wireless shall provide to CTS an executed blanket
purchase order in the amount of $20,000. Such purchase order may
be used by CTS to cover the cost of non-returned replacement
parts as described in , Section 2.4.2(c), and additional
services that may be requested by Verizon Wireless and
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Verizon Wireless/CTS Agreement CONFIDENTIAL
approved in advance by Verizon Wireless HQ Fraud Prevention &
Strategy Department during the term of this Agreement and that
are not covered by the Aggregate Fee (e.g., reconfiguration of
markets, additional renaming of sites as described in Section
2.2.1(a), below, off-hours calls, Verizon Wireless-requested
training programs and other special projects). Such charges
shall be governed in accordance with Section 1.5.4(b), below.
1.5.4 Standard Terms.
a. In addition to the Aggregate Fee and any other charges required
to be paid by Verizon Wireless to CTS hereunder, Verizon
Wireless shall pay (or, at CTS's election, reimburse CTS) for
all federal, state, and local taxes and withholding requirements
in connection with the transactions contemplated by this
Agreement (excluding taxes based on CTS's net income or its
authority to do business within a given state). Such taxes
specifically include, without limitation: (i) 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 (ii) all interest and penalties
which may result from the failure to pay any of such taxes or
charges. If CTS receives any notice of deficiency with respect
to any such taxes or charges, CTS will promptly deliver notice
thereof to Verizon Wireless so that Verizon Wireless may have a
reasonable opportunity to contest such taxes and any related
interest and penalties.
b. Verizon Wireless will pay CTS for all services requested and
authorized by Verizon Wireless in writing which are not
specifically covered under the Aggregate Fee at CTS's
then-current rates for labor (presently $210 per hour), parts,
and materials, plus all reasonable expenses incurred by CTS or
its subcontractors in providing such services (including without
limitation travel, lodging, per diem expenses, long distance
telephone charges, and similar expenses). Verizon Wireless will
be charged a minimum of two hours of service for the performance
of any such services, subject to a 1.5 multiplier applied for
overtime work and a 2.0 multiplier applied for Sunday and
holiday work.
c. Except as otherwise expressly set forth in this Agreement or any
schedule hereto: (i) CTS will invoice Verizon Wireless for
amounts to be paid hereunder, and Verizon Wireless will pay the
amounts described in each invoice within forty-five (45) days
after receipt of the applicable invoice; (ii) Verizon Wireless
shall not be entitled to the return or reimbursement of any
compensation paid to CTS pursuant to this Agreement; and (iii)
the Aggregate Fee and any other charges hereunder shall be paid
to CTS in immediately available funds in United States Dollars.
d. If Verizon Wireless fails to pay any sum when due and payable in
excess of forty-five (45) days, CTS reserves the right to
invoice Verizon Wireless for interest at a rate of one percent
(1%) per month, or the maximum rate permitted by applicable law
if lower, accruing from the due date of such payment until paid.
If CTS is entitled to the sums sought to be collected, it
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Verizon Wireless/CTS Agreement CONFIDENTIAL
may also be entitled to receive all costs expended by CTS in
collecting those sums, including without limitation reasonable
attorneys' fees.
e. If termination occurs prior to June 1, 2001, when the second
payment of the Aggregate Fee is due, no further payments will be
due to CTS. If such termination occurs after the second payment
is due, CTS will refund Verizon Wireless one sixth (1/6) of the
second payment for every month of service not provided. The
beginning date for calculation of refund will be the date that
the incident causing material breach occurred.
1.6 NOTICE.
1.6.1 Any notice to be given hereunder by either party to the other shall
be in writing and shall be valid and sufficient if dispatched by:
(a) registered or certified mail, return receipt requested, postage
prepaid in any post office in the United States; (b) hand delivery;
(c) recognized overnight courier prepaid; or (d) via facsimile
transmission upon electronic confirmation of receipt.
1.6.2 Notices to Verizon Wireless shall be addressed to:
Verizon Wireless
One Verizon Place
Alpharetta, GA 30004
Attention: Jeffrey Schaulin, Associate Director
- Fraud Prevention and Strategies
Mail Code; GA1A2FPS
With a copy to:
Verizon Wireless
One Verizon Place
Alpharetta, GA 30004
Attention: Allen Edenfield, Manager - Contracts
Mail Code; GA2A1PRO
With a copy to:
Verizon Wireless
180 Washington Valley Road
Bedminster, New Jersey 07921
Attention: S. Mark Tuller, Esq. General Counsel
Notices to CTS shall be addressed to:
2815 Second Avenue, Suite 100
Seattle, Washington 98121
Attention: Legal Department
Telefax: (206) 269-1404
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Verizon Wireless/CTS Agreement CONFIDENTIAL
1.6.3 If either party changes its address during the term hereof, it
shall so advise the other party in writing and any notice
thereafter required to be given shall be sent to such new address.
1.7 LAWS, RULES AND REGULATIONS.
If required by federal law, CTS shall comply, at its own expense,
with the provisions of the Fair Labor Standards Act of 1938, as
amended, and all other applicable state and municipal requirements
and those of state and federal laws applicable to CTS as an
employer of labor or otherwise.
1.8 PROFESSIONALISM.
1.8.1 The services to be provided by CTS under this Agreement shall
proceed with promptness and diligence and shall be executed in
accordance with the highest professional standards in the field, to
Verizon Wireless' reasonable satisfaction.
1.8.2 CTS shall replace, at Verizon Wireless' request, any employee,
agent or consultant, furnished by CTS who, in Verizon Wireless'
reasonable opinion, is incapable, uncooperative or otherwise
unacceptable in the execution of the services to be provided under
this Agreement.
1.8.3 Verizon Wireless shall have the option to require CTS to correct
any deficiencies in its work product or services, at no additional
cost to Verizon Wireless. Deficiencies are to be determined by
generally accepted professional standards, including the use of
peer review.
1.9 INSURANCE.
1.9.1 CTS shall secure and maintain at its expense during the Term, or
Renewal Term as applicable, the following: (i) workers'
compensation insurance as required by Statute, and Employer's
Liability insurance with limits of not less than $1,000,000. per
occurrence; (ii) commercial general liability insurance (including,
but not limited to, premises-operations, broad form property
damage, products/completed operations, contractual liability,
independent contractors, personal injury) with limits of at least
$2,000,000 combined single limit for each occurrence (iii)
commercial automobile liability with limits of at least $2,000,000
combined single limit for each occurrence; (iv) professional
liability (Errors and Omissions) with limits of not less than
$1,000,000 per claim; and (v) excess liability insurance in the
umbrella form with a combined single limit of $5,000,000.
1.9.2 Verizon Wireless shall be named as additional insured on all
policies of insurance purchased by CTS. CTS shall furnish
certificates evidencing such insurance to Verizon Wireless upon the
execution of this Agreement and thereafter on each anniversary of
the Effective Date or upon written request of Verizon Wireless.
Each insurance policy shall state by endorsement that such policy
shall not be canceled or materially changed without at least ten
(10) days prior written notice to Verizon Wireless by mail, and
shall immediately notify Verizon Wireless of any reduction or
possible reduction in the limits of any such policy where such
reduction, when added to any previous reductions, would exceed
twenty-five (25%) percent of the limits.
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Verizon Wireless/CTS Agreement CONFIDENTIAL
1.10 INDEPENDENT CONTRACTOR.
1.10.1 Neither CTS nor its officers, directors, employees or consultants,
shall be deemed to be employees or agents of Verizon Wireless, it
being understood that CTS is an independent contractor for all
purposes and at all times; and CTS shall be solely responsible for
the safety and supervision of its consultants as well as for the
withholding and payment of all federal, state and local personal
income taxes, social security, unemployment and sickness disability
insurance and other payroll taxes with respect to its employees,
including contributions from them when and as required by law. CTS
shall timely pay such taxes or charges to the appropriate
governmental agencies with respect to its officers, directors,
employees or consultants. CTS shall be liable for all workers'
compensation benefits, premiums and other similar charges with
respect to its officers, directors, employees or consultants .
1.10.2 CTS shall indemnify and hold harmless Verizon Wireless for any
taxes, interest, penalties, damages, costs, charges, expenses or
other sums incurred by Verizon Wireless, including, but not limited
to, charges or assessments from any revenue authority, arising from
any claim against Verizon Wireless or any of its affiliates, by
such authority based on the services provided under this Agreement
or compensation therefor.
1.11 VERIZON WIRELESS' PROPERTY.
1.11.1 Title to all property owned by Verizon Wireless and furnished to
CTS shall remain in Verizon Wireless.
1.11.2 Any property owned by Verizon Wireless and in CTS's possession or
control shall be used only in the performance of this Agreement
unless authorized in writing by Verizon Wireless. CTS shall
adequately protect such property, and shall deliver or return it to
Verizon Wireless or otherwise dispose of it as directed by Verizon
Wireless.
1.11.3 CTS shall be responsible for any loss of or damage to property
owned by Verizon Wireless and in CTS's possession or control.
1.12 CTS PROPERTY
1.12.1 Title to all property owned by CTS and furnished to Verizon
Wireless shall remain in CTS.
1.12.2 Any property owned by CTS and in Verizon Wireless' possession or
control shall be used only in the performance of this Agreement
unless authorized in writing by CTS. Verizon Wireless shall
adequately protect such property, and shall deliver or return it to
CTS or otherwise dispose of it as directed by CTS.
1.12.3 Verizon Wireless shall be responsible for any loss of or damage to
property owned by CTS and in Verizon Wireless' possession or
control.
1.12.4 CTS Facilities. CTS shall maintain CTS Facilities in compliance
with the Infrastructure and Environmental Requirements at all times
during the term of this
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Verizon Wireless/CTS Agreement CONFIDENTIAL
Agreement. If, upon inspection, Verizon Wireless determines that
the Infrastructure and Environmental Requirements are not met,
Verizon Wireless will promptly notify CTS, and CTS shall cure the
Infrastructure and Environmental Requirements defects within three
(3) business days of receipt of Verizon Wireless' notice.
1.13 INFRINGEMENT.
1.13.1 The following terms apply to any infringement, suit for or claim or
allegation of infringement of any patent, trademark, copyright,
trade secret or other proprietary interest (collectively referred
to as "IP Claim") based on the manufacture, use, sale, or
importation into the United States of any material, equipment,
product, program or service ("Product or Service") furnished to
Verizon Wireless under or in contemplation of this Agreement. CTS
shall indemnify and hold harmless Verizon Wireless and any of its
affiliates, customers, officers, directors, employees, assigns and
successors for any loss, damage, expense, cost (including, but not
limited to, any attorney's fees incurred in the enforcement of this
indemnity) or liability that may result by reason of any such IP
Claim, and CTS shall defend or settle, at its own expense, any such
IP Claim against Verizon Wireless.
1.13.2 Verizon Wireless shall provide CTS with prompt written notice of
any IP Claim that identifies a Product or Service provided to
Verizon Wireless hereunder and tender to CTS sole control of any
such action or settlement negotiations to the extent covered by the
indemnification provided herein. CTS shall keep Verizon Wireless
advised of the status of any such IP Claim and of its defense
and/or negotiation efforts and shall afford Verizon Wireless
reasonable opportunity to review and comment on significant actions
planned to be taken by CTS on behalf of Verizon Wireless. If any
such IP Claim involves other vendors of Verizon Wireless, CTS shall
cooperate as reasonably necessary to effectively defend Verizon
Wireless. Verizon Wireless shall, at CTS's expense, reasonably
cooperate with CTS in the defense of Verizon Wireless. The omission
of Verizon Wireless to provide notice to CTS of any such action
shall not relieve CTS from any liability in respect of such action
which it may have to Verizon Wireless on account of the indemnity
agreement contained in this Section 1.13, except to the extent CTS
may have been prejudiced by the failure to give notice.
1.13.3 If the use, manufacture, sale, or importation in the United States
of any Product or Service furnished hereunder becomes subject to an
IP Claim, CTS shall, at Verizon Wireless' option and at no expense
to Verizon Wireless, (i) by license or other release from claim of
infringement obtain for Verizon Wireless and Verizon Wireless'
customers the right to make, use, sell and/or import into the
United States the Product or Service, as appropriate; or (ii)
substitute an equivalent non-infringing Product or Service
reasonably acceptable to Verizon Wireless, which meets the
specifications for the Product or Service, and extend this
indemnity thereto; or (iii) modify such Product or Service to make
it non-infringing but continue to meet the specifications
therefore, and extend this indemnity thereto; or (iv) accept the
return of the Product or Service and reimburse Verizon Wireless the
purchase price therefore, less a reasonable charge for reasonable
wear and tear, and release Verizon Wireless from all future
payments under this Agreement.
1.14 PLANT RULES AND SECURITY REQUIREMENTS.
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Verizon Wireless/CTS Agreement CONFIDENTIAL
CTS and all Consultants shall, while on Verizon Wireless' premises,
comply with all plant rules and regulations in effect at such
premises, including security requirements. CTS's rights of entry
shall be subject to applicable governmental security laws.
1.15 USE AND OWNERSHIP OF INFORMATION.
1.15.1 CTS shall execute the "Non-Disclosure Agreement" in the form
appended hereto as Exhibit D. All employees and consultants shall
be provided a copy of the executed "Non-Disclosure Agreement" and
shall execute an "Acknowledgment" in the form attached to the
"Non-Disclosure Agreement" as Attachment A of Exhibit D.
1.15.2 While CTS and/or its Consultants are engaged in the performance of
services hereunder, inventions may be made or conceived of for the
first time reduced to practice by said Consultants, either solely
or jointly with others, in the course of, or as a result of, such
performance of services. In consideration of the payment by Verizon
Wireless to CTS of the amounts specified for the performance of
services hereunder, CTS hereby does assign and will assign to
Verizon Wireless all right, title and interest in and to such
inventions, discoveries and improvements, and any patents,
copyrights or other forms of legal protection that may be granted
thereon in any country. CTS further agrees, without charge to
Verizon Wireless, but at Verizon Wireless' expense, to execute,
acknowledge and deliver all such papers as may be necessary to
obtain patents for such inventions in any and all countries of the
world and to vest title thereto in Verizon Wireless, its successors
and assigns. CTS shall have and acquire from its Consultants such
assignments and rights as to assure that Verizon Wireless shall
receive all of the rights provided for in this Agreement. CTS shall
provide a copy of all documents to show that all Work and
intellectual property developed by it and its Consultants have been
transferred to CTS.
1.16 PUBLICITY.
CTS shall not issue or release for publication any articles or advertising
or publicity matter relating to the work performed hereunder or mentioning
or implying the name of Verizon Wireless or any of its partners, affiliates
or personnel, unless prior written consent is granted by Verizon Wireless.
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.
1.17 GOVERNING LAW.
This Agreement shall be governed by the laws of the State of New York
without reference to its provisions on conflict of laws.
1.18 LITIGATION EXPENSES.
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Verizon Wireless/CTS Agreement CONFIDENTIAL
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 may 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 may be awarded all
of its reasonable costs and expenses, including without limitation
reasonable attorneys' fees, incurred in connection with such controversy,
claim, or dispute.
1.19 ASSIGNMENT.
Any assignment of this Agreement, in whole or in part, or any other
interest hereunder without Verizon Wireless' written consent, except an
assignment confined solely to monies due or to become due, shall be void.
It is expressly agreed that any such assignment of monies shall be void to
the extent that it attempts to impose upon Verizon Wireless obligations to
the assignee additional to the payment of such monies, or to preclude
Verizon Wireless from dealing solely and directly with CTS in all matters
pertaining hereto, including the negotiation of amendments or settlements
of amounts due. It is further agreed that Verizon Wireless, upon written
notice to CTS, may assign this Agreement, in whole or in part, or any of it
rights, duties and obligations under this Agreement to its parent, an
affiliate or affiliates of Verizon Wireless or to a partnership or
partnerships in which Verizon Wireless or an affiliate has an interest.
This Agreement shall inure to the benefit of, and shall be binding upon the
parties hereto and their respective successors and permitted assigns.
1.20 WAIVER.
No provision of this Agreement shall be deemed waived, amended, or modified
by either party, unless such waiver, amendment or modification be in
writing and signed by the party against whom it is sought to enforce the
waiver, amendment or modification.
1.21 AUDIT.
CTS shall maintain complete records of all costs payable by Verizon
Wireless under the terms of this Agreement for three (3) years after
termination of Agreement. Such records shall specifically include, but are
not limited to, timesheets. All such records shall be maintained in
accordance with recognized accounting practices. Verizon Wireless shall
have the right, through its authorized representatives, to examine and
audit such records at all reasonable times. The correctness of CTS's
billing shall be determined by such audits.
1.22 SUBCONTRACTING.
CTS shall not, without the prior written consent of Verizon Wireless,
subcontract any portion of the work covered by this Agreement. Any
subcontractor consented to must agree to all the terms and condition of
this Agreement and CTS shall be liable for the conduct of such
subcontractor to the same extent as CTS's liability under this Agreement.
1.23 ARTICLE HEADINGS.
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Verizon Wireless/CTS Agreement CONFIDENTIAL
The headings of the several Articles are inserted for convenience of
reference only and are not intended to be a part of or to affect the
meaning or interpretation of this Agreement.
1.24 SEVERABILITY.
If any provision, or portion thereof of this Agreement is invalid under
applicable statute or rule of law, it is only to that extent to be deemed
omitted, and such unenforceability shall not affect any other provision of
this Agreement, but this Agreement shall then be construed as if such
unenforceable provision or provisions had never been contained herein.
1.25 WARRANTIES.
1.25.1 CTS represents and warrants to Verizon Wireless and its assigns
that all services performed under this Agreement shall be performed
in a professional and workmanlike manner, free from material faults
and defects and in conformity with the reasonable trade practices
in the industry. This warranty shall be in addition to, and not in
limitation of, any other warranty or remedy provided by law.
1.25.2 CTS represents and warrants that no portion of the material
prepared for Verizon Wireless or services rendered to Verizon
Wireless under this Agreement is derived from or includes any
copyrighted or similarly protected material, other than such
material as CTS has provided a license or other evidence from such
owner of the ability to do so.
1.25.3 CTS represents and warrants to Verizon Wireless, to the best of its
knowledge and belief, that any software provided to Verizon
Wireless by CTS does not contain or will not contain any Self-Help
Code nor any Unauthorized Code (defined below).
1.25.4 As used in this Agreement, "Self-Help Code" means any back door,
"time bomb", drop dead device, or other software routine designed
to disable a computer program automatically with the passage of
time or under the positive control of a person other than a
licensee of the program. Self-Help Code does not include software
routines in a computer program, if any, designed to permit the
licensor of the computer program (or other person acting by
authority of the licensor) to obtain access to a licensee's
computer system(s) (e.g., remote access via modem) for purposes of
maintenance or technical support.
1.25.5 As used in this Agreement, "Unauthorized Code" means any virus,
Trojan horse, worm, or any other software routines or hardware
components designed to permit unauthorized access to disable,
erase, or otherwise harm software, hardware, or data or to perform
any other such actions. The term Unauthorized Code does not include
Self-Help Code.
1.25.6 CTS shall remove promptly any such Self-Help Code or Unauthorized
Code in the software of which it is notified or may discover.
1.25.7 In addition to the warranties stated above, CTS agrees to provide
the following warranties:
a. Roaming Service Warranty.
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Verizon Wireless/CTS Agreement CONFIDENTIAL
CTS warrants that any service outage of the CTS Network will not
exceed twenty-four (24) hours in duration for so long as Verizon
Wireless has a Connected System, provided that CTS shall have no
liability under this section to the extent that the service
outage or any delay in CTS meeting its obligations under this
section is due, in whole or part, to any cause beyond CTS's
reasonable control or any cause that is not attributable to the
CTS Network. If CTS breaches the foregoing warranty, then, as
Verizon Wireless' exclusive remedy for such breach, CTS shall
provide Verizon Wireless with a credit equal to $450.00 per
24-hour period for each additional 24-hour period that the
service outage continues after the initial 24 hours of the
service outage.
b. Intellectual Property Rights.
CTS hereby warrants to Verizon Wireless that, subject to the
provisions of Section 4.1 below, each Licensed Program (not
including any Third-Party Software), if used by Verizon Wireless
in accordance with the terms of this Agreement, is free of any
valid claim by a Third Party that such Licensed Program (not
including any Third-Party Software) infringes an existing United
States Intellectual Property Right of such Third Party. Verizon
Wireless' exclusive remedy for breach of the warranty set forth
in this Section 1.25.7(b), is set forth in Section 1.26, below.
c. Software Performance.
For each System, CTS hereby warrants to Verizon Wireless that
the Licensed Programs (not including any Third-Party Software),
when used in conjunction with the Hardware necessary for
operation of such System and with Verizon Wireless' cellular
network operating in a normal manner, and when all relevant
Infrastructure and Environmental Requirements are satisfied,
will materially perform in accordance with their Specifications
for so long as the Support Services Agreement is in full force
and effect. Verizon Wireless' exclusive remedy for breach of
such warranty shall be correction by CTS, at no additional
charge to Verizon Wireless, 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, that CTS shall have no obligation to make
such corrections if Verizon Wireless is in breach or default
under this Agreement and is notified, in writing, of such breach
or default, or if Verizon Wireless fails to notify CTS in
writing within a reasonable time of discovery of such errors or
malfunctions. If a correction of an error or malfunction is
commercially impractical, CTS may provide Verizon Wireless with
a commercially reasonable circumvention of such error or
malfunction. For Third-Party Software supplied by CTS, CTS will
pass through to Verizon Wireless the warranties that CTS
receives from its vendor for such Third-Party Software, to the
extent that such vendor will honor such warranties.
d. Emergency 911 Calls.
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Verizon Wireless/CTS Agreement CONFIDENTIAL
For each System, CTS hereby warrants to Verizon Wireless that
the CTS-proprietary Licensed Programs, when used in conjunction
with the Hardware necessary for operation of such System and
with Verizon Wireless' cellular network operating in a normal
manner, and when all relevant Infrastructure and Environmental
Requirements are satisfied, will not interdict "911" or "*911"
call destinations initiated within Verizon Wireless' cellular
network; provided, that CTS shall have no liability under this
Section 1.25.7(d) if: (i) the System, at Verizon Wireless'
request, is configured to potentially interdict such call
destinations; or (ii) the System's failure to perform as
required hereunder is due to any cause or condition beyond CTS's
reasonable control.
1.25.8 Limitation of Warranty.
EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 1.25.8, CTS MAKES NO
REPRESENTATIONS, WARRANTIES, OR GUARANTIES OF ANY KIND, EITHER
EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SUPPORT
SERVICES OR TO ANY 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.
1.25.9 Limitation of Liability
Except for indemnification obligations for third-party claims or
infringement claims made by either party to this agreement, neither
party shall be responsible or held liable to the other, its
employees, subcontractors and/or agents, or any third party, for
any indirect, incidental, special, consequential or punitive
damages or lost profits for any Claim or demand of any nature or
kind, arising out of or in connection with this Contract or the
performance or breach thereof. Notwithstanding anything that may
appear to the contrary herein, and except for indemnification
obligations for third-party claims or infringement claims made by
either Party, in no event shall either Party be liable in the
aggregate for more than the amount actually invoiced/received under
this Agreement.
1.26 INDEMNIFICATION.
1.26.1 CTS shall defend, indemnify and hold harmless Verizon Wireless, its
parents, subsidiaries and affiliates, and its and their respective
directors, officers, partners, employees, agents, successors and
assigns ("Indemnified Parties") from any claims, demands, lawsuits,
damages, liabilities, judgments and settlements of every kind
("Claims") that may be made in connection with CTS's obligations
under this Agreement: (a) by anyone for injuries (including death)
to persons or damage to property, including theft, resulting from
the acts or omissions of CTS or those persons furnished by CTS,
including its subcontractors (if any); or (b) by persons furnished
by CTS and its subcontractors (if any) under Worker's Compensation
or similar acts. The foregoing indemnification shall apply whether
CTS or an
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Verizon Wireless/CTS Agreement CONFIDENTIAL
Indemnified Party defends such Claim and whether the
Claim arises or is alleged to arise out of the acts or omissions of
the CTS (and/or any subcontractor of CTS) or out of the concurrent
acts or omissions of CTS (and/or any subcontractor of CTS) whether
negligent or otherwise.
1.26.2 CTS shall defend Verizon Wireless at Verizon Wireless' request,
against any such liability, claim or demand. The foregoing
indemnification shall apply whether CTS or Verizon Wireless defends
such suit or claim and whether the death, injury or property damage
is caused by the sole acts or omissions of CTS or by the concurrent
acts or omissions of Verizon Wireless or CTS hereunder. Verizon
Wireless agrees to notify CTS promptly of any written claim or
demands against Verizon Wireless for which CTS is responsible
hereunder. CTS shall have the right to defend any such claim with
counsel reasonably acceptable to Verizon Wireless.
1.26.3 The supplied software, hardware and related services provided
hereunder (i) shall perform on and after January 1, 2000 in as good
a manner as before such date, and (ii) shall at all times manage,
manipulate and report data involving dates (including the year
2000, dates before and after the year 2000, and single-century and
multi-century formulas) without generating incorrect values or
dates or causing an abnormally-ending scenario within an
application. CTS shall indemnify Verizon Wireless and Verizon
Wireless' customers for any loss, cost, or damages sustained
because of CTS's Year 2000 noncompliance.
1.27 FORCE MAJEURE.
In no event shall either party have any liability for any failure to comply
with this Agreement, if such failure results from the occurrence of any
contingency beyond the reasonable control of the party, including without
limitation, strike or other labor disturbance, riot, theft, flood, fire,
lightning, storm, any act of God, power failure, war, national emergency,
interference by any government or governmental agency, embargo, seizure, or
enactment of any law, statute, ordinance, rule or regulation.
1.28 BUSINESS CONDUCT.
Both Parties shall take all reasonable measures necessary to ensure that
the other and/or its Consultant(s) shall conduct themselves in accordance
with the highest standards of honesty, integrity and fair dealing
including, but not limited to, compliance with any ethical codes
promulgated by Verizon Wireless and applicable to parties providing
consulting services.
1.29 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.
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Verizon Wireless/CTS Agreement CONFIDENTIAL
ARTICLE II. SUPPORT SERVICES
2.1 SCOPE OF COVERAGE.
2.1.1 Support Services Options.
a. Base Support Services. CTS hereby offers the following support
services (collectively, the "Base Support Services") to Verizon
Wireless for the Supported Products of each System, subject to
the terms and conditions set forth in this Agreement:
i. Technical Support Services: CTS will provide the technical
support services described in Section 2.2 below.
ii. Software Subscription Services: CTS will provide software
subscription services for New Releases of the Licensed
Programs supported under this Agreement, as more fully
described in Section 2.3 below.
iii. Cell Site Hardware Maintenance: CTS will provide on-site
maintenance of Cell Site Hardware as more fully described
in Section 2.4 below.
b. Blackbird Platform Monitoring Services. CTS hereby offers its
Blackbird Platform Monitoring Services described in Section 2.5
below (the "Blackbird Platform Monitoring Services"), subject to
the terms and conditions set forth in this Agreement.
c. Backup & Restore Support Services. CTS hereby offers support
services for its Backup & Restore product as described in
Section 2.6 below (the "Backup & Restore Support Services"),
subject to the terms and conditions set forth in this Agreement.
2.1.2 Selection by Verizon Wireless.
Verizon Wireless shall select the desired support services as
indicated in Exhibit A for each System from the available support
services specified in Section 2.1.1, above, and which are more
fully described elsewhere in this Agreement (collectively, the
"Support Services"). Verizon Wireless' selections for each market
shall be reflected on Exhibit A hereto, and may be modified by the
mutual written agreement of CTS and Verizon Wireless. Services
requested that are not specifically included in Exhibit A will be
agreed in advance by the parties and charged as set forth in
Section 1.5.4(b), above.
2.2 TECHNICAL SUPPORT SERVICES.
For each System for which such services were selected on Exhibit A,
CTS will perform the Support Services described in this Section 2.2
with respect to the Supported Products for such System.
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Verizon Wireless/CTS Agreement CONFIDENTIAL
2.2.1 CTS Technical Support Hotline.
a. General. CTS will maintain a technical support hotline to
respond to all technical problems with respect to the System.
The current technical support hotline number is (206) 727-6353,
and is subject to change with notice to Verizon Wireless.
Automatic call distribution will route calls to an available CTS
technical analyst. If a technical analyst is not available, the
caller will be either routed to a voice mailbox, or asked to
hold via a wait queue. Depositing a message in the voice mailbox
activates an internal paging system, and the next available
technical analyst will promptly return the call during the
applicable hours of coverage. Except as otherwise provided under
Section 2.7.2 below, CTS technical analysts will be able to
access to the System via a 56 Kbps connection, and will be able
to query the System while a Support Contact is on line. If CTS
determines at any time that any CTS on-site technical support is
necessary due to the nature of a particular condition or
recurring similar conditions, then CTS will make available such
personnel as CTS deems appropriate to respond to the condition,
so long as Verizon Wireless provides CTS with adequate
facilities for such personnel as required by Section 2.7.4
below. Support services include CTS standard automated daily
reports; disc space allocation and maintenance; VDD, NPA/NXX,
gold list updates and fingerprint database reconciliations based
on files sent from Verizon Wireless to CTS in the specified
formats; event log maintenance; DCC and Control Channel updates
at the RPC as requested by the Verizon Wireless; and Sybase
upgrades. Support services also include renaming cell sites
performed one day during each quarter of 2001 in a bundled
fashion up to 25 sites each quarter. Verizon Wireless will
provide CTS with the complete rename information one week in
advance of the day the renames are to be performed. Requests for
renaming sites on additional dates or in excess of 25 per
quarter will be charged in accordance with Section 1.5.4(b).
b. Commencement of Support. CTS's responsibility to address
conditions that affect the System will commence upon CTS's
receipt of a telephone call from a Support Contact (via the
technical support hotline) identifying the condition to CTS. The
CTS technical analyst responding to the call will perform the
following during the applicable hours of coverage: (i) identify
the condition; and (ii) assess whether the condition is a
Priority 1 Incident, Priority 2 Incident, or Priority 3
Incident. Once the above factors are identified, CTS will
respond to and resolve the condition as described in Section
2.2.2 below.
c. Hours of Coverage. CTS technical analysts will be available
during Normal Business Hours to provide the technical support
described in this Section 2.2.
2.2.2 Response and Resolution Procedures.
a. CTS's response and resolution procedures for conditions that
affect the System are determined by the severity of the
condition (i.e., Priority 1 Incident, Priority 2 Incident, and
Priority 3 Incident), as described in this Section 2.2.2.
Response to a condition will involve an initial period for
identification of the source of the problem, which may require
Verizon
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Verizon Wireless/CTS Agreement CONFIDENTIAL
Wireless' assistance, including, without limitation,
assistance with inspecting the condition of Hardware,
cooperative troubleshooting with respect to network
connectivity, and providing sufficient examples of any anomalies
reported with System data or functioning.
b. Priority 1 Incident. If CTS determines that a Priority 1
Incident has occurred, CTS will begin working to identify the
source of the problem within one (1) normal business hour after
commencement of CTS support (as described in Section 2.2.1(b))
for the Priority 1 Incident and will continue to work on
identifying the source of the problem during Normal Business
Hours until the problem is identified. If the problem is
identified as a problem with any Supported Product, CTS will
work to correct the problem as follows:
i. Problem identified with Licensed Programs: CTS will work to
correct the problem during Normal Business Hours until (i)
a reasonably satisfactory correction is achieved or (ii)
CTS determines that a correction is commercially
impractical, in which case CTS will then work to provide
Verizon Wireless with a commercially reasonable
circumvention of the problem.
ii. Problem identified with Hardware: CTS's responsibilities
for correcting Hardware problems will be determined by the
type of Hardware and Verizon Wireless' selection of
hardware maintenance.
If a Priority 1 Incident, (a) occurs in Los Angeles, San
Francisco, Sacramento or Atlanta, or (b) occurs in any two
markets simultaneously, then CTS shall have ten (10) business
days from the time it is notified to resolve such Priority 1
Incident. Otherwise, CTS will be deemed to have materially
breached this Agreement. , CTS shall have no liability under
this Section to the extent that (a) the condition or any delay
in CTS meeting its obligations under this Section is due in
whole or in part, to any cause beyond CTS's reasonable control
or cause that is not attributable to any System, or (b) the
condition pertains to the CTS-Certified Hardware described in
Section 2.4.2(d), below. In the event such cause is out of CTS's
reasonable control, CTS shall provide Verizon Wireless written
notice of such cause and shall seek Verizon Wireless
approval/waiver of this provision, such approval will not be
unreasonably withheld by Verizon Wireless.
c. Priority 2 Incident. If CTS determines that a Priority 2
Incident has occurred, CTS will begin working to identify the
source of the problem within nine (9) normal business hours
after commencement of CTS support (as described in Section
2.2.1.(b)) for the Priority 2 Incident and will continue to work
on identifying the source of the problem during CTS's Normal
Business Hours until the problem is identified. If the problem
is identified as a problem with any Supported Product, CTS will
work to correct the problem as set forth in Section 2.2.2(b)
above.
d. Priority 3 Incident. If CTS determines that a Priority 3
Incident has occurred, CTS will begin working to identify the
source of the problem within ten normal business days during
CTS's Normal Business Hours. If the problem
26
Verizon Wireless/CTS Agreement CONFIDENTIAL
is identified as a problem with any Supported Products, CTS will
work to correct the problem as set forth in Section 2.2.2(b)
above.
2.2.3 Maintenance Releases.
CTS may provide Maintenance Releases to Verizon Wireless for such
System at no additional charge, so long as Verizon Wireless is not
in default of its payment obligations hereunder. Maintenance
Releases, if provided, will be delivered to each site, either via
tape, diskette media, or network connection, as determined by CTS
in consultation with Verizon Wireless.
2.2.4 Changes in Condition.
If the severity of a condition requiring Support Services hereunder
changes (e.g., a Priority 2 Incident becomes a Priority 1 Incident
due to a change in relevant circumstances), then the timeframes
governing CTS's response and resolution of the problem will be
modified accordingly to comport with the timeframes for the new
level of priority as outlined in Section 2.2.2 above. The
applicable new timeframes will be measured from the time at which
CTS receives notification of the change in condition.
2.3 SOFTWARE SUBSCRIPTION SERVICES.
CTS will provide New Releases to Verizon Wireless for such System at no
additional charge, so long as Verizon Wireless is not in default of its
payment obligations hereunder. New Releases, if provided, will be delivered
to each site, either via tape, diskette media, or network connection, as
determined by CTS in consultation with Verizon Wireless. If Verizon
Wireless does not pay CTS the Aggregate Fee as set forth in Section 1.5.3,
above, then CTS, in its discretion, may provide New Releases for such
System to Verizon Wireless on such terms and conditions and for such fees
as the parties may mutually agree to in writing.
2.4 CELL SITE HARDWARE MAINTENANCE.
2.4.1 CTS On-Site Maintenance.
a. Maintenance. For those markets shown on Exhibit A in which
Verizon Wireless has selected CTS On-Site Maintenance, CTS will
perform the Support Services described in this Section 2.4.1
with respect to the Cell Site Hardware for a System. CTS's
responsibilities for such Support Services are determined by the
severity of the condition that affects the System (i.e.,
Priority 1 Incident, Priority 2 Incident and Priority 3
Incident). CTS will staff the on-site maintenance from Seattle
and will schedule trips in advance to service the selected
Systems with adequate frequency to provide repairs on a timely
basis while keeping costs as low as possible. CTS and Verizon
Wireless agree that the frequency and level of on-site service
provided during the calendar year 2000 under the agreements with
the Prior Companies has been satisfactory and is expected to be
maintained during the term of this Agreement.
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Verizon Wireless/CTS Agreement CONFIDENTIAL
b. Repair and Replacement Procedures. Arrangements for the repair
or replacement of Cell Site Hardware will be arranged and
scheduled through the CTS technical support hotline. CTS will
determine in its discretion whether Cell Site Hardware requires
repair or replacement. All Systems will have replacement parts
(RMA parts) for Cell Site Hardware components supplied by CTS at
no charge. Replacements for Cell Site Hardware components will
be new or serviceable used parts equivalent to new in
performance. Replacement parts will be shipped via air carrier
to the relevant site, and all costs of shipping Cell Site
Hardware components to and from Verizon Wireless and risk of
loss during each shipment will be the responsibility of CTS.
Verizon Wireless shall return the replaced parts in the shipping
materials used by CTS within fifteen (15) business days of
receipt of the replacement parts.
2.4.2 CTS Support for Verizon Wireless On-Site Maintenance.
a. General. Verizon Wireless On-Site Maintenance is selected by
Verizon Wireless for a System in which CTS On-Site Maintenance
is not selected on Exhibit A, and the following provisions shall
apply: (i) Verizon Wireless will be responsible for the repair
or replacement of affected Cell Site Hardware components
according to the procedure set forth below; and (ii) CTS will be
responsible for providing maintenance Documentation and
telephone technical assistance, as described below.
b. Telephone Technical Assistance. During the applicable hours of
coverage, CTS will provide technical assistance for Verizon
Wireless On-Site Maintenance through the CTS technical support
hotline. Arrangements for such technical assistance will be
arranged and scheduled through the CTS technical support hotline
at least two (2) business days in advance.
c. Repair and Replacement Procedures; Spare Parts. Verizon Wireless
shall perform repair or replacement of affected Cell Site
Hardware components in full compliance with this Agreement and
the terms of all maintenance Documentation supplied by CTS. CTS
will supply spare parts to Verizon Wireless on an as needed
basis for the direct repair or replacement of Cell Site
Hardware. CTS will determine in its discretion whether Cell Site
Hardware requires repair or replacement. Replacements for Cell
Site Hardware components will be new or serviceable used parts
equivalent to new in performance. Arrangements for the shipment
of spare parts will be made through the CTS technical support
hotline. CTS will use commercially reasonable efforts to process
the shipment of spare parts on an expedited basis to the
relevant Verizon Wireless Facility. All components removed from
Cell Site Hardware shall be shipped by Verizon Wireless via air
carrier to CTS's facilities in Seattle, Washington, or to other
facilities designated by CTS, within fifteen (15) business days
after Verizon Wireless' receipt of the corresponding replacement
component from CTS, and will become the property of CTS upon
receipt. In the event that such replaced parts are not returned
to CTS within 30 days following receipt of the replacement
parts, CTS shall charge Verizon Wireless for the cost of the
replacement parts in accordance with its current price list for
such parts. Such charge may be made pursuant to the blanket
purchase order referred to in Section 1.5.3(b). CTS
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Verizon Wireless/CTS Agreement CONFIDENTIAL
will provide reasonable detailed notice to Verizon Wireless of
any charges posted against the blanket purchase order. All costs
of shipping spares, repaired or replacement components, or
exchanged components from the relevant Verizon Wireless
Facility, the risk of loss during each shipment, and the proper
storage of components at Verizon Wireless facilities will be the
responsibility of Verizon Wireless. All costs of shipping spares
or repaired or replacement components to the relevant Verizon
Wireless Facility and the risk of loss during each shipment will
be the responsibility of CTS.
d. HP and Cisco Maintenance. For CTS-Certified Hardware. Verizon
Wireless elects to have CTS renew its existing HP and Cisco
maintenance contracts for support services with respect to
Verizon Wireless' CTS-Certified hardware for those markets
indicated in Exhibit A. CTS will be Verizon Wireless' point of
contact for all support required in all markets. CTS will then
coordinate with either Verizon Wireless and/or the third-party
hardware manufacturer as necessary. Verizon Wireless will pay
CTS fees for such re-marketed support services. The fees for
2001 for Cisco are $40,756 and for HP are $137,000. These fees
are due and payable to CTS January 31, 2001.
2.5 BLACKBIRD PLATFORM MONITORING SERVICES.
For those markets shown on Exhibit A in which Verizon Wireless has selected
Blackbird Platform Monitoring Services, then CTS will perform periodic
remote monitoring of the status and condition of such System during Normal
Business Hours. Such Blackbird Platform Monitoring Services consist of
monitoring the status and condition of Supported Products and network
connections, and include the monitoring of: (i) the functionality of major
software processes; and (ii) the connectivity among Supported Products and
between Supported Products and Verizon Wireless' network. If, in the
performance of Blackbird Platform Monitoring Services, CTS detects a
condition that negatively affects the System, CTS will respond to and
resolve such condition in accordance with the applicable support service
options selected by Verizon Wireless for such System under this Agreement.
2.6 BACKUP & RESTORE SUPPORT SERVICES.
For those markets shown on Exhibit A in which Verizon Wireless has selected
Backup & Restore Support Services, then CTS will perform the following
services:
2.6.1 CTS-Proprietary Components.
CTS will perform Base Support Services for the CTS-proprietary
components of the Backup & Restore product supplied by CTS for such
System. Such services include the Technical Support Services
described in Section 2.2 above, but do not include the provision of
New Releases or CTS On-Site Maintenance for such software. Backup &
Restore Support Services shall be provided only during Normal
Business Hours.
2.6.2 Third-Party Components.
With respect to the third-party components of the Backup & Restore
product supplied by CTS for such System, CTS support service will
be limited to passing
29
Verizon Wireless/CTS Agreement CONFIDENTIAL
through to Verizon Wireless the support and maintenance terms that
CTS is allowed to pass through to Verizon Wireless by the
applicable CTS supplier.
2.7 ADDITIONAL VERIZON WIRELESS RESPONSIBILITIES.
2.7.1 Support Contacts.
Verizon Wireless shall designate, and will provide CTS with the
name, address, and telephone number of at least one (1) primary and
one (1) back-up support contact for each applicable System
(collectively, the "Support Contacts"). Such Support Contacts will:
(a) contact Verizon Wireless' trained in-house technical support
personnel who will conduct preliminary problem identification/
troubleshooting for any condition identified by Verizon Wireless
which affects such System, which includes performing the
troubleshooting/problem identification procedures set forth in the
Documentation; and (b) notify CTS (via the CTS technical support
hotline) within one (1) hour after the detection of any condition
affecting such System. If Verizon Wireless does not have in-house
technical support personnel to provide the required preliminary
problem identification/troubleshooting, then CTS may perform such
work and Verizon Wireless will pay CTS for same at CTS's
then-current rates. In addition to the technical support personnel
described above, Verizon Wireless shall designate and maintain
technical subject matter experts, to whom technical problems can be
escalated for resolution. Such experts shall include at least one
networking engineer, responsible for administration of Verizon
Wireless' network infrastructure with which the System interfaces.
2.7.2 WAN Access to System.
Verizon Wireless will, at its expense, provide CTS with access to
each System through a 56 Kbps network connection to enable CTS to
perform its obligations under this Agreement. This network
connection can be the same network connection required under
Section 3.3.4 below.
2.7.3 Verizon Wireless' Network.
Verizon Wireless acknowledges that data relevant to System
performance will be transmitted through a portion of Verizon
Wireless' network. Verizon Wireless will be responsible for
maintaining and continuously monitoring such portion of its
network. If, in the performance of such monitoring, Verizon
Wireless detects any condition that may affect a System, Verizon
Wireless will promptly notify CTS of such condition and coordinate
with CTS in the troubleshooting and resolution of such network
condition.
2.7.4 Facilities and Supplies; On-Site Representatives.
Verizon Wireless will provide CTS with such access to Supported
Products as CTS deems necessary to perform its Support Services
during the hours of coverage specified in this Agreement. In
addition, Verizon Wireless will promptly provide at no cost to CTS:
(i) adequate and safe working facilities which, in the opinion of
CTS, are necessary or appropriate in connection with the
performance of this Agreement; (ii) operating supplies and
consumables at the relevant site; and (iii) electrical work
30
Verizon Wireless/CTS Agreement CONFIDENTIAL
external to the Supported Products. Upon CTS's written request,
Verizon Wireless will make available an experienced and properly
qualified representative of Verizon Wireless at the relevant site
and at the relevant times during which services are being performed
by CTS's personnel or subcontractors.
2.7.5 Data.
Verizon Wireless is and shall at all times continue to be
responsible for maintaining a procedure external to each System for
the back up of files, data, programs, and other information used as
part of the System, and for the restoration and reconstruction of
any loss or alteration of such files, data, programs, or
information. Except as expressly set forth in this Agreement, CTS
shall have no responsibility or liability for any loss or
alteration of files, data, programs, or other information used as
part of a System.
2.7.6 Relocation.
Verizon Wireless will not relocate or reinstall any Supported
Products, unless: (i) CTS is provided with written notice of any
relocation or reinstallation within a particular site or building
at least forty-eight (48) hours before such relocation or
reinstallation; (ii) CTS is provided written notice of any other
relocation or reinstallation at least fourteen (14) days before
such relocation or reinstallation; (iii) the Supported Products are
relocated or reinstalled at a site which is located within any
"Licensed Market," as such term is defined in the License
Agreement, and which meets all of the Infrastructure and
Environmental Requirements; and (iv) the Supported Products are
installed at such site by CTS or a CTS-certified installer. Only
Supported Products which are relocated or reinstalled at another
site in accordance with this subsection will continue to be
serviced under this Agreement and continue to be subject to any
applicable warranties provided for such Supported Products under
the License Agreement. Verizon Wireless will be responsible for all
fees, costs, expenses, and damages incurred in connection with any
relocation of Supported Products, except that Verizon Wireless will
not be responsible for CTS's costs or expenses in connection
therewith if the relocation is necessary due to the fault of CTS.
2.7.7 Causes Beyond CTS's Control.
Verizon Wireless will be responsible for any support services
required due to any of the following: (i) improper use or neglect;
(ii) support or use of the Licensed Programs or Hardware in a
manner contrary to that specified in this Agreement, or
Documentation provided by CTS; (iii) work performed by personnel
other than CTS personnel or subcontractors or other persons
certified by CTS to perform such work pursuant to the appropriate
CTS training program; (iv) site conditions that do not conform to
the Infrastructure and Environmental Requirements; or (v) any other
cause beyond CTS's control. If support or maintenance of any
Supported Product is required to return it to eligibility for
coverage under this Agreement, CTS will offer to perform such
maintenance on a time and materials basis at its then-current rates
prior to placing the Supported Product under this Agreement.
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Verizon Wireless/CTS Agreement CONFIDENTIAL
ARTICLE III. ROAMING PROTECTION SERVICES
3.1 THE SERVICE.
3.1.1 Commencement of Service.
Verizon Wireless hereby agrees to retain CTS to perform the
Service, as defined herein, and CTS hereby agrees to perform such
Service for Verizon Wireless, subject to payment of the Aggregate
Fee and other terms and conditions set forth in this Agreement. CTS
and Verizon Wireless will agree on the commencement of Service for
a given System pursuant to the selections made on Exhibit A to the
Services Agreement. "Service" shall be defined as the transmission
of Call Data through the CTS Network for subscribers roaming in
other CTS Blackbird markets: (i) between Connected Systems, or (ii)
between a Connected System and another system within the United
States connected to the CTS Network with CTS's written approval.
3.1.2 License Regarding Non-Verizon Wireless Call Data.
Subject to the terms of this Agreement, CTS hereby: (i) grants to
Verizon Wireless a non-exclusive, non-transferable right and
license (the "License") to use the portion of Call Data owned by
other Service Users or CTS solely for the purpose of detecting and
preventing cellular roaming cloning fraud by operation of each
Connected System; and (ii) agrees to provide such Call Data to
Verizon Wireless for such limited purpose. Such License and
agreement to provide Call Data shall be effective with respect to a
Connected System for so long as CTS provides Service for such
System during the term of this Agreement. The License sets forth
the entirety of Verizon Wireless' rights in connection with the
portion of Call Data owned by other Service Users or CTS.
Accordingly, Verizon Wireless shall not use, or permit any Third
Party to use or have access to, such Call Data for any purpose
other than as expressly set forth in this section, without the
express prior written approval of CTS.
3.1.3 License Regarding Verizon Wireless Call Data.
Verizon Wireless hereby: (i) grants to CTS and each Service User a
non-exclusive, non-transferable, and royalty-free right and license
to use the portion of Call Data owned by Verizon Wireless solely
for the purpose of detecting and preventing cellular roaming
cloning fraud by operation of one or more systems comprised of the
CTS Blackbird(R) Platform and PreTect(TM) fraud prevention
application; and (ii) agrees to provide such Call Data to CTS and
each Service User for such limited purpose. Such license and
agreement to provide Call Data shall be effective with respect to
Call Data transmitted from a Connected System to the CTS Network
for so long as CTS provides Service for such System during the term
of this Agreement. Such license sets forth the entirety of CTS's
rights in connection with the portion of Call Data owned by Verizon
Wireless (which portion shall expressly exclude the CTS-proprietary
information described in Section 1.1.3(ii), above). Accordingly,
CTS shall not use, or permit any third party to use or have access
to, the portion of Call Data owned by Verizon Wireless for any
purpose other than as expressly set forth in this subsection,
without the express prior written approval of Verizon Wireless.
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Verizon Wireless/CTS Agreement CONFIDENTIAL
3.2 MAINTENANCE OF CTS NETWORK.
CTS shall be responsible for maintaining all aspects of the CTS Network,
including all components of the CTS Network located at Verizon Wireless
Facilities (but not including maintaining the site conditions required
under the Infrastructure and Environmental Requirements, which is the
responsibility of Verizon Wireless). CTS shall have the exclusive right, in
its discretion, to inspect, service, repair, replace, modify, or enhance
any aspect of the CTS Network at any time during the term of this
Agreement, subject to the provisions of Section 3.3 below. CTS reserves the
right to suspend Service for a planned service outage caused by scheduled
maintenance or planned enhancements or modifications to the CTS Network;
provided, that if necessary, at Verizon Wireless' request, such planned
service outage shall occur outside Verizon Wireless' high volume service
hours. CTS will notify Verizon Wireless of a planned service outage in
advance. Support for the Service will be provided during Normal Business
Hours.
3.3 ADDITIONAL VERIZON WIRELESS RESPONSIBILITIES.
3.3.1 Access.
Verizon Wireless shall at all times cooperate with CTS and provide
CTS with such access to Verizon Wireless Facilities as CTS
reasonably requires for the purpose of installation, inspection,
maintenance, service, repair, replacement, modification,
enhancement, relocation, and/or removal of any or all components of
the CTS Network located at Verizon Wireless Facilities and for the
purpose of performing any other actions contemplated by this
Agreement; provided, that if necessary, at Verizon Wireless'
request, such access shall occur outside Verizon Wireless' high
volume service hours.
3.3.2 Prohibited Actions.
Verizon Wireless shall not, internally or in conjunction with any
other person or entity, and shall not permit or assist any person
or entity to, do or attempt to do any of the following without the
express prior written approval of CTS: (i) remove, obscure,
conceal, or alter any notices or legends appearing in or on any
component of the CTS Network indicating CTS's ownership of such
component; (ii) tamper with, modify, alter, repair, replace,
relocate, disconnect, connect anything to, or remove any component
of the CTS Network; (iii) obtain access to or modify, alter, or
destroy any Call Data of any other Service User, by or through any
means or devices whatsoever, for any reason whatsoever; or (iv) use
any other means or devices to circumvent the purposes of this
Agreement or to obtain Service with the intent to avoid payment, in
whole or in part, of additional applicable fees for the Service and
the License. Verizon Wireless shall promptly notify CTS in writing
of any facts of which Verizon Wireless is aware which might
constitute a violation of this subsection.
3.3.3 Relocation.
If CTS approves any relocation of components of the CTS Network, as
required by Section 3.2 above, then such relocation shall be
conducted by CTS, except as the parties otherwise agree to in
writing. The site at which such components are
33
Verizon Wireless/CTS Agreement CONFIDENTIAL
relocated shall be within the same Licensed Market and shall meet
all of the Infrastructure and Environmental Requirements. Verizon
Wireless shall be responsible for all fees, costs, expenses, and
damages incurred in connection with any relocation of components of
the CTS Network performed at Verizon Wireless' request.
3.3.4 WAN Access.
Verizon Wireless will, at its expense, provide CTS with access to
each Connected System through a 56 Kbps network connection to
enable CTS to perform its obligations under this Agreement. This
network connection can be the same network connection required
under Section 2.7.2 above.
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Verizon Wireless/CTS Agreement CONFIDENTIAL
ARTICLE IV. SOFTWARE LICENSE
4.1. LICENSE OF SOFTWARE.
4.1.1 Grant of License.
Subject to the terms of this Agreement, CTS hereby grants to
Verizon Wireless 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 shall be perpetual for all Licensed Programs
and Documentation licensed and furnished hereunder for the purpose
of operating Systems installed prior to the expiration or
termination of this Agreement, subject to the terms of Section
1.3.3, above.
4.1.2 License Limitations.
a. The License sets forth the entirety of Verizon Wireless' rights
in connection with the Licensed Programs, Documentation, and all
Intellectual Property Rights in connection with the Licensed
Programs and Documentation. Accordingly, Verizon Wireless shall
not: (i) use the Licensed Programs or Documentation for any
purpose other than as expressly set forth in Section 4.1.1
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 Verizon Wireless'
representatives who are authorized by Verizon Wireless to use
Licensed Programs and Documentation in accordance with this
Agreement and for whom Verizon Wireless is responsible under the
Nondisclosure Agreement).
b. Without limiting the generality of the foregoing, Verizon
Wireless 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 Verizon Wireless): (i)
sublicense any rights under the License; (ii) print or copy the
Licensed Programs, other than such number of copies as
authorized by CTS in the Documentation for use solely by Verizon
Wireless in accordance with this Agreement; (iii) print or copy
the Documentation, other than copies for use solely by Verizon
Wireless in accordance with this Agreement and subject to 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, Verizon
Wireless 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
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Verizon Wireless/CTS Agreement CONFIDENTIAL
Verizon Wireless' records and facilities for the
limited purpose of auditing and verifying Verizon Wireless'
compliance with the terms of this Section 4.1.2(b).
4.1.3 New Releases, Maintenance Releases, and Customizations.
a. New Releases. CTS will provide any New Releases for each System
in operation as of the date hereof to Verizon Wireless at no
additional charge, so long as this Agreement remains in full
force and effect and Verizon Wireless is not in breach or
default under this Agreement or any the Support Services
Agreement. Otherwise, CTS, in its discretion, may provide New
Releases for such System to Verizon Wireless on such terms and
conditions and for such additional 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.
b. Maintenance Releases. CTS may provide any Maintenance Releases
for each initial System in operation as of the date hereof to
Verizon Wireless at no additional charge, so long as Verizon
Wireless so long as the Support Services Agreement remains in
full force and effect and Verizon Wireless is not in breach or
default under this Agreement or the Support Services Agreement.
Otherwise, CTS, in its discretion, may provide Maintenance
Releases for such System to Verizon Wireless on such terms and
conditions and for such additional fees as the parties may
mutually agree to in writing.
c. Customizations. Verizon Wireless 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. All Customizations will be
performed pursuant to one or more separate, written agreements
between CTS and Verizon Wireless, which shall specify the
deliverables, milestones, compensation, confidentiality
requirements, use restrictions, and other terms, conditions, and
procedures as CTS and Verizon Wireless may mutually agree to
with respect to such Customizations.
4.2 SOURCE CODE.
In the event CTS becomes insolvent, ceases to carry on business on a
regular basis or fails to perform its maintenance obligations herein, CTS
shall furnish the latest version of Software source code, operating and
design documentation, training material and any other necessary information
to enable Verizon Wireless to maintain and enhance such Software or to
contract with others for such work
4.3 PROPRIETARY RIGHTS.
4.3.1 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 Verizon Wireless. 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
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Verizon Wireless/CTS Agreement CONFIDENTIAL
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 Verizon Wireless.
4.3.2 CTS and Verizon Wireless 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.
37
Verizon Wireless/CTS Agreement CONFIDENTIAL
ARTICLE V. ENTIRE AGREEMENT
5.1 ENTIRE AGREEMENT.
5.1.1 This Agreement, together with all attachments, constitutes the
entire agreement between Verizon Wireless and CTS with respect to
the subject matter hereof and supersedes any prior or
contemporaneous oral or written representations with regard to the
subject matter. This Agreement may not be amended or modified
without specific written provision to that effect, signed by both
parties.
5.1.2 The parties agree that by the execution of this Agreement, the
following agreements by and among CTS and GTE Wireless Services
Corporation be and hereby are terminated: (i) the Master Purchase
and License Agreement dated as of August 1, 1999, (ii) the Support
Services Agreement dated as of August 1, 1999, (iii) the Roaming
Protection Services Agreement dated as of August 1, 1999, (iv) the
Source Code Escrow Agreement dated as of August 1, 1999, and (v)
all Market Purchase Agreements dated as of August 1, 1999; and all
exhibits, schedules, addenda, amendments, and supplements to, and
restatements of, the foregoing agreements.
5.1.3 Upon termination of this Agreement each Party hereby releases the
other from all obligations under any prior agreements.
5.2 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.
5.3 SIGNATURES
IN WITNESS WHEREOF, CTS and Verizon Wireless have caused this Agreement to be
signed and delivered by their duly authorized officers, all as of the date first
written above.
CELLCO PARTNERSHIP, Cellular Technical Services
d.b.a. VERIZON WIRELESS: COMPANY, Inc:
By: By:
--------------------------------- ---------------------------
Name: Lowell C. McAdam Name: Bruce R. York
--------------------------------- ---------------------------
Title: Executive Vice President and COO Title: Chief Financial Officer
--------------------------------- ---------------------------
Date: Date:
--------------------------------- ---------------------------
38
Verizon Wireless/CTS Agreement CONFIDENTIAL