EXHIBIT 10.47
Agreement No. 980427-03
AGREEMENT NO. 980427- 03
BETWEEN
SBC AMERITECH
SBC PACIFIC BELL
SBC SOUTHERN NEW ENGLAND TELEPHONE
SBC SOUTHWESTERN BELL TELEPHONE, L.P.
AND
@TRACK COMMUNICATIONS, INC.
1
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
INDEX
<Table>
<Caption>
PAGE
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1.00 PREAMBLE ........................................................... 8
SECTION A - TERMS AND CONDITIONS APPLICABLE TO THE ENTIRE AGREEMENT ....... 9
1.20 SCOPE OF AGREEMENT ................................................. 9
1.30 DEFINITIONS ........................................................ 9
1.31 ACCEPTANCE DATE .................................................... 9
1.32 ACCEPTANCE PERIOD .................................................. 9
1.33 ACCEPTANCE TEST .................................................... 10
1.34 ALTERNATE APPOINTMENT DATE ......................................... 10
1.35 APPOINTMENT DATE ................................................... 10
1.36 BILLING ENTITY ..................................................... 10
1.37 DAILY SERVICE FEE .................................................. 10
1.38 THIS FIELD HAS BEEN INTENTIONALLY LEFT BLANK ....................... 10
1.39 DELIVERY DATE ...................................................... 11
1.40 DOCUMENTATION ...................................................... 11
1.41 DOWNTIME ........................................................... 11
1.42 EFFECTIVE DATE ..................................................... 11
1.43 ENTERPRISE LICENSE ................................................. 11
1.44 EXCLUDED CODE ...................................................... 11
1.45 MRST EXCLUDED CODE ................................................. 11
1.46 FIELD ENGINEER ..................................................... 11
1.47 GPS MATERIAL SOLUTION .............................................. 12
1.48 GRACE PERIOD ....................................................... 12
1.49 INSTALLATION ACCEPTANCE ............................................ 12
1.50 INSTALLATION DATE .................................................. 12
1.51 INSTALLATION SITE .................................................. 12
1.52 INTELLECTUAL PROPERTY .............................................. 12
1.53 LICENSE FEE ........................................................ 12
1.54 LICENSED SOFTWARE .................................................. 12
1.55 LOCAL MIN .......................................................... 13
1.56 ORDER .............................................................. 13
1.57 PENALTY DAYS ....................................................... 13
</Table>
2
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
INDEX (Continued)
<Table>
<Caption>
PAGE
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1.58 PREVENTIVE MAINTENANCE ............................................. 13
1.59 PRINCIPAL PERIOD ................................................... 13
1.60 PROBLEM CODE ....................................................... 13
1.61 PRODUCT ............................................................ 14
1.62 PROGRAM MATERIAL ................................................... 14
1.63 QUALIFIED REPEATED ST .............................................. 14
1.64 QUALIFIED ST ....................................................... 14
1.65 REMEDIAL MAINTENANCE ............................................... 14
1.66 REPEATED SERVICE TICKET (ST) ....................................... 14
1.67 SCHEDULED SERVICE APPOINTMENT DATE ................................. 14
1.68 SERVICES ........................................................... 14
1.69 SERVICE TICKET (ST) ................................................ 14
1.70 SERVICE TICKET RESOLUTION DATE ..................................... 14
1.71 SERVICE TICKET START DATE .......................................... 14
1.72 SERVICE TYPE ....................................................... 14
1.73 SOFTWARE ........................................................... 15
1.74 SOLUTION CODE ...................................................... 15
1.75 STATUS CODE ........................................................ 15
1.76 SYSTEM ............................................................. 15
1.77 INCOMPLETE SERVICE TICKET .......................................... 15
1.78 DEFINITIONS OF SOLUTION CODES EXCLUDED FROM MONTHLY
NETWORK SERVICE FEE CREDIT CALCULATION AND/OR MONTHLY
REMEDIATION SERVICE TICKET CREDIT .................................. 15
1.79 DEFINITION OF PROBLEM CODES EXCLUDED FROM
MONTHLY NETWORK SERVICE FEE CREDIT CALCULATION
AND/OR MONTHLY REMEDIATION SERVICE TICKET CREDIT ................... 15
1.80 ACCEPTANCE OF GPS MATERIAL AS SUCH ................................. 15
1.81 ACCESS ............................................................. 15
1.82 AFFILIATED COMPANY ................................................. 16
1.83 AMENDMENTS AND WAIVERS ............................................. 16
1.84 ASSIGNMENT ......................................................... 17
1.85 BACKGROUND CHECK/DRUG SCREEN ....................................... 17
1.86 CABLES AND RELATED ITEMS ........................................... 17
1.87 CELLULAR SERVICE ................................................... 17
1.88 CHANGES & SUSPENSIONS .............................................. 18
</Table>
3
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
INDEX (Continued)
<Table>
<Caption>
PAGE
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1.89 CHANGES TO GPS MATERIAL ............................................ 18
1.90 CLEAN UP ........................................................... 19
1.91 COMPLAINTS ......................................................... 19
1.92 COMPLIANCE WITH LAWS ............................................... 20
1.93 CONFLICT OF INTEREST ............................................... 20
1.94 CONTINUING AVAILABILITY OF PARTS, MAINTENANCE AND
TECHNICAL SUPPORT SERVICES ......................................... 20
1.95 CURE ............................................................... 20
1.96 DELIVERY ........................................................... 20
1.97 DEPLOYMENT SCHEDULE AND PHASED IMPLEMENTATION ...................... 21
1.98 DISPUTES AND DISPUTE RESOLUTION .................................... 21
1.99 DOCUMENTATION ...................................................... 21
2.00 EMERGENCY EQUIPMENT ................................................ 22
2.01 ENGINEERING, DESIGN AND DEVELOPMENT SERVICES ....................... 22
2.02 FOB ................................................................ 22
2.03 FORCE MAJEURE ...................................................... 22
2.04 GOVERNING LAW ...................................................... 23
2.05 QUALITY IMPROVEMENT ................................................ 23
2.06 HAZARDOUS MATERIALS AND REGULATED SUBSTANCES ....................... 23
2.07 HEADINGS ........................................................... 24
2.08 @TRACK'S LIMITATION ................................................ 25
2.09 IDENTIFICATION OF SUPPLIER'S PERSONNEL AND EQUIPMENT ............... 25
2.10 INDEPENDENT CONTRACTOR ............................................. 25
2.11 INFRINGEMENT ....................................................... 25
2.12 INSPECTION ......................................................... 27
2.13 INSTALLATION ....................................................... 27
2.14 INSURANCE .......................................................... 27
2.15 LIABILITY .......................................................... 28
2.16 LICENSES & PATENTS ................................................. 28
2.17 M/WBE-DVBE PARTICIPATION PLANS AND REPORTS ......................... 29
2.18 MBE/WBE/DVBE CANCELLATION .......................................... 29
2.19 MOST FAVORED CUSTOMER .............................................. 31
2.20 NO THIRD PARTY BENEFICIARIES ....................................... 31
2.21 NON-EXCLUSIVE MARKET RIGHTS ........................................ 31
2.22 NON-INTERVENTION ................................................... 31
</Table>
4
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
INDEX (Continued)
<Table>
<Caption>
PAGE
----
2.23 NON-WAIVER ......................................................... 31
2.24 NOTICES ............................................................ 31
2.25 ONGOING PERFORMANCE OF REMOTE PANIC ALARM .......................... 32
2.26 ORDER ACCEPTANCE ................................................... 32
2.27 ORDER OF PRECEDENCE ................................................ 33
2.28 PERSONNEL EMPLOYMENT ............................................... 33
2.29 PLANT AND WORK RULES ............................................... 33
2.30 POINTS OF CONTACT .................................................. 33
2.31 PRICES AND PAYMENT ................................................. 33
2.32 PRICE PROTECTION ................................................... 33
2.33 PUBLICITY .......................................................... 33
2.34 PURCHASE PROVISIONS ................................................ 34
2.35 QUALITY ASSURANCE .................................................. 34
2.36 RECORDS AND AUDIT .................................................. 35
2.37 REGISTRATION ....................................................... 36
2.38 RELEASES VOID ...................................................... 36
2.39 RELOCATION ......................................................... 36
2.40 REMEDIES CUMULATIVE ................................................ 37
2.41 RESPONSIBILITIES ................................................... 37
2.42 RISK OF LOSS ....................................................... 37
2.43 SBC AND @Track INFORMATION ......................................... 37
2.44 SEVERABILITY ....................................................... 37
2.45 SHIPPING AND BILLING ............................................... 38
2.46 SITE PREPARATION ................................................... 38
2.47 SURVIVAL OF OBLIGATIONS ............................................ 39
2.48 TAXES .............................................................. 39
2.49 SPECIAL TAX PROVISIONS ............................................. 39
2.50 TECHNICAL REQUIREMENTS AND SPECIFICATIONS .......................... 41
2.51 "TERM OF AGREEMENT" ................................................ 41
2.52 TERMINATION AND CANCELLATION ....................................... 42
2.53 TIME IS OF THE ESSENCE ............................................. 42
2.54 TIMELY PERFORMANCE ................................................. 42
2.55 TITLE .............................................................. 42
2.56 TRADE-INS .......................................................... 43
2.57 TRAINING ........................................................... 43
</Table>
5
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
INDEX (Continued)
<Table>
<Caption>
PAGE
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2.58 TRANSPORTATION ..................................................... 43
2.59 UNIVERSAL DESIGN ................................................... 44
2.60 WARRANTY ........................................................... 44
2.61 WORK DONE BY OTHERS ................................................ 44
2.62 WORK HEREUNDER ..................................................... 45
SECTION B - SOFTWARE LICENSE .............................................. 46
2.63 GENERAL ............................................................ 46
2.64 GRANT OF LICENSE ................................................... 46
2.65 DOCUMENTATION UPDATES .............................................. 46
2.66 ERROR CORRECTIONS .................................................. 47
2.67 FORM OF ORDER ...................................................... 47
2.68 INSTALLATION OF SOFTWARE ........................................... 47
2.69 SOFTWARE PRODUCT DELIVERY AND INSTALLATION ......................... 48
2.70 RELOCATION OF SOFTWARE ............................................. 49
2.71 RETURN OF SOFTWARE ................................................. 49
2.72 RIGHT TO REPRODUCE MATERIAL AND DOCUMENTATION ...................... 49
2.73 RISK OF LOSS ....................................................... 50
2.74 SOFTWARE UPDATES ................................................... 50
2.75 SOURCE AVAILABILITY AND SOURCE CODE ESCROW ......................... 51
2.76 SOURCE CODE ........................................................ 53
2.77 STANDARD OF PERFORMANCE ............................................ 54
2.78 TITLE .............................................................. 54
2.79 USE OF THE SOFTWARE ................................................ 54
2.80 USE OF PLATFORMS ................................................... 54
2.81 WARRANTY ........................................................... 54
SECTION C - GPS MATERIAL MAINTENANCE SERVICES ............................. 55
2.82 GENERAL ............................................................ 55
2.83 ACCESS ............................................................. 55
2.84 BASIC SERVICE ...................................................... 55
2.85 ENGINEERING CHANGES ................................................ 56
2.86 ESCALATION PROCEDURE ............................................... 56
2.87 FORM OF ORDER ...................................................... 56
2.88 GRADE OF SERVICE ................................................... 58
2.89 MONTHLY NETWORK SERVICE FEE CREDIT ................................. 58
2.90 MONTHLY REMEDIATION SERVICE TICKET CREDIT .......................... 58
</Table>
6
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
INDEX (Continued)
<Table>
<Caption>
PAGE
----
2.91 MAINTENANCE BY OTHERS .............................................. 58
2.92 MAINTENANCE LOG .................................................... 58
2.93 MAINTENANCE SERVICE CHARGES ........................................ 58
2.94 METHODS OF OPERATION ............................................... 58
2.95 PERFORMANCE INCENTIVES ............................................. 58
2.96 PRICES AND PAYMENT ................................................. 58
2.97 PARTS .............................................................. 58
2.98 REMEDIAL MAINTENANCE ............................................... 58
2.99 STORAGE AND WORK SPACE ............................................. 59
3.00 TERM OF ORDER ...................................................... 59
3.01 MAINTENANCE SERVICE PRICING ........................................ 60
SECTION D - @TRACK NETWORK SERVICES ....................................... 60
3.02 GENERAL ............................................................ 60
3.03 SCOPE OF RESPONSIBILITY ............................................ 60
3.04 NETWORK SERVICE TERMS .............................................. 60
3.05 ALARM MONITORING ................................................... 62
SECTION E - ENTIRE AGREEMENT .............................................. 62
3.06 ENTIRE AGREEMENT ................................................... 62
APPENDIX I GPS SPECIFICATIONS .......................................... 64
APPENDIX II PRICING ..................................................... 65
APPENDIX III CHANGE ORDER ................................................ 66
APPENDIX IV EXECUTIVE ORDERS AND ASSOCIATED REGULATIONS ................. 67
APPENDIX V @ TRACK QUALITY MANUAL ...................................... 70
APPENDIX VI ESCROW AGREEMENT ............................................ 71
APPENDIX VII ACCEPTANCE LETTER ........................................... 86
EXHIBIT A PRIME SUPPLIER PARTICIPATION DIVERSITY PLAN ................. 87
EXHIBIT B PARTICIPATION PLANS AND RESULTS REPORTS ..................... 90
EXHIBIT C1 CERTIFICATIONS .............................................. 92
</Table>
7
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
AMENDMENT NO. 3 TO AGREEMENT NO. 980427
1.0 PREAMBLE:
This Third Amendment and Restatement ("hereinafter, the "Agreement") is
effective as of January 31, 2002 (the "Effective Date") and shall not be applied
retroactively. Agreement No. 980427 as amended by Amendments Nos. 1 and 2
thereto shall apply to GPS Materials, Network Services and Services purchased by
SBC from @Track prior to the Effective Date. With the execution of this
Agreement, the prior statement of, Agreement No. 980427 as amended by Amendments
Nos. 1 and 2 is superseded in its entirety with respect to GPS Materials,
Networks Services and Services purchased on or after the Effective Date.
WITNESSETH:
WHEREAS, HighwayMaster Corporation, n/k/a @Track Communications, Inc. and SBC
entered into Agreement No. 980427 on January 13, 1999 ("Agreement No. 980427");
WHEREAS, @Track and SBC entered in Amendment No. 1 to Agreement 980427 on
January 4, 2002.
WHEREAS, @Track and SBC entered into Amendment No. 2 to Agreement No. 980427 on
January 31, 2002;
WHEREAS, SBC American Information Technologies Corporation (Ameritech) shall be
added as an SBC Operating Unit party to this Agreement.
WHEREAS Southwestern Bell Telephone Company shall now be known as SBC
Southwestern Bell Telephone, L.P.
WHEREAS, Pacific Bell shall now be known as SBC Pacific Bell Telephone Company;
WHEREAS, Southern New England Telephone shall now be known as SBC Southern New
England Telephone; and
WHEREAS, @Track and SBC now desire to further amend and completely restate the
Agreement No. 980427 by this Third Amendment and Restatement as hereinafter set
forth;
NOW, THEREFORE, in consideration of the promises and the covenants hereinafter
contained, the parties hereto agree as follows:
8
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
SECTION A - TERMS & CONDITIONS APPLICABLE TO ENTIRE AGREEMENT
1.20 SCOPE OF AGREEMENT
This Agreement is applicable to the procurement by SBC from @Track of Global
Positioning System (GPS) material ("GPS Material") specified in orders
placed/submitted by SBC and any Software System and Services, including any
upgrades made through the term of this Agreement, that have been announced by
@Track and GPS Material, Software, Systems and Services available after the
Effective Date. The terms and conditions of this Section A will apply to all
other sections of this Agreement.
The provisions of this Agreement shall apply to all contracts entered into
between @Track and SBC during the term of this Agreement with respect to the GPS
Material and Services which are the subject of this Agreement unless the parties
expressly agree otherwise by a written modification to this Agreement, signed by
the persons who executed this Agreement or their authorized representatives. In
the absence of such a modification to this Agreement or such separate agreement,
any terms in any other contract which are additional to, different from or
inconsistent with the provisions of this Agreement shall be deemed to be void
and of no effect whatsoever.
Pricing for future requirements, including development Phase 4 and beyond will
be negotiated as they are defined.
1.30 DEFINITIONS
For the purposes of this Agreement, all terms defined herein will have the
meanings so defined, unless the context clearly indicates otherwise. A term
defined in the singular will include the plural and vice versa when the context
so indicates. As used in this Agreement, the following terms shall have the
definitions set forth below:
1.31 ACCEPTANCE DATE
"ACCEPTANCE DATE" means the last day of an Acceptance Period in which a
Product has successfully completed the Acceptance Tests. If SBC waives the
Acceptance Test(s) for any Product in writing, the Acceptance Date for such
Product will be the Installation Date for such Product. For any
maintenance, support or other Service for which an Acceptance Test is not
required, the Acceptance Date will be the Effective Date.
1.32 ACCEPTANCE PERIOD
"ACCEPTANCE PERIOD" means a period of fifteen (15) consecutive calendar
days (or the period specified in the Order) during which the Acceptance
Test(s) for a Product is/are performed. For software, the acceptance period
will be governed by terms under section 1.80 (ACCEPTANCE OF GPS MATERIAL).
9
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
1.33 ACCEPTANCE TEST
"ACCEPTANCE TEST" means the performance and reliability demonstrations and
tests defined herein that must be successfully completed by a Product
during the Acceptance Period which may include but will not necessarily be
limited to: (1) successful completion of SBC's routine business
transactions, (2) tests, demonstrations or transactions performed during
any @Track benchmarking, and (3) any other tests, demonstrations or
transactions included or referenced in the GPS Specifications or which are
appropriate to determine whether the Product conforms to the requirements
of the GPS Specifications.
1.34 [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
1.35 [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
1.36 [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
1.37 [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
1.38 THIS SECTION HAS BEEN INTENTIONALLY LEFT BLANK.
10
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
1.39 DELIVERY DATE
"DELIVERY DATE" means the date by which all items and parts of the GPS
Material as ordered be delivered to the destination specified in the
applicable Order.
1.40 DOCUMENTATION
"DOCUMENTATION" will include, but not be limited to, user and system
manuals, training materials in machine readable or printed form.
1.41 [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
1.42 EFFECTIVE DATE
"EFFECTIVE DATE" means the effective date of this Agreement or, the
effective date for any order placed against this Agreement.
1.43 ENTERPRISE LICENSE
"ENTERPRISE LICENSE" means Products may be used at any location, on any
platform and by any number of Users across SBC's current or future
affiliates.
1.44 [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
1.45 [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
1.46 FIELD ENGINEER
"FIELD ENGINEER" means a person @Track's employs qualified to repair GPS
Materials in a timely and professional manner.
11
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
1.47 GPS MATERIAL SOLUTION "GPS MATERIAL" means an in-vehicle monitoring
system as more specifically defined in the GPS Specifications Document
attached hereto but at a minimum consisting of:
[TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE
SEC.]
1.48 [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
1.49 [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.].
1.50 INSTALLATION DATE
"INSTALLATION DATE" means the date by which all components of a Product or
System are installed and prepared for Acceptance Tests at the location
specified in the applicable Order. The Installation Date for Software and
GPS Material includes delivery of Software, manuals and supporting
Documentation. The Installation Date may differ from one Installation Site
to another.
1.51 INSTALLATION SITE
"INSTALLATION SITE" means the vehicle or workstation location, established
by SBC, in which the GPS Material will reside. The Installation Site(s) for
each Product will be identified in the applicable Order.
1.52 INTELLECTUAL PROPERTY
"INTELLECTUAL PROPERTY" means all copyrights, patents, mask works, trade
secrets, or other rights associated with any ideas, concepts, techniques,
inventions, processes, or works of authorship
1.53 LICENSE FEE
"LICENSE FEE (S)" means the fee associated with licensing of Product(s)
from @Track.
1.54 LICENSED SOFTWARE
"LICENSED SOFTWARE" means a standard computer program with respect to which
@Track has the right to grant SBC a license or sublicense to use same.
Licenses are granted as either perpetual or periodic, exclusive or
non-exclusive, for which @Track may or may not receive a License Fee.
Licensed Software also includes all associated Documentation.
12
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
1.55 LOCAL MIN
"LOCAL MIN" shall mean a telephone number supplied by the local wireless
provider for voice and data communication.
1.56 ORDER
"ORDER" means an SBC document executed hereunder ordering GPS Materials
and/or Services and will be deemed to incorporate (1) the provisions of
this Agreement (including the Exhibits attached hereto), as it may from
time to time be amended, (2) the GPS Specifications applicable to such
Order and (3) any subordinate documents attached to or referenced in this
Agreement, such GPS Specifications or such Order. Each Order will be deemed
to be a separate and independent agreement between the parties with respect
to the subject matter thereof.
1.57 [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
1.58 PREVENTIVE MAINTENANCE
"PREVENTIVE MAINTENANCE" means maintenance performed or required to be
performed by @Track on a scheduled basis to keep the GPS Material in good
operating condition in accordance with the requirements of the applicable
Order. Preventive Maintenance, if applicable, will include (1) calibration,
testing, adjustments, cleaning, lubrication, replacement of worn, defective
or questionable parts, (2) maintenance and engineering services necessary
to retrofit or otherwise install engineering changes, modifications and
improvements (including the latest engineering revision and all reliability
improvements) approved by @Track for SBC's configuration/environment as
mutually agreed upon by SBC and @Track and made to any GPS Material by
@Track at any time during the maintenance term for that GPS Material; and
(3) automatic update services for all manuals and Documentation furnished
with any GPS Material.
1.59 [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
1.60 [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
13
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
1.61 [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
1.62 PROGRAM MATERIAL
"PROGRAM MATERIAL" means all material associated with Software ordered
hereunder including, but not limited to, test data, flow charts,
Documentation, data file listings, input and output formats. Program
Material expressly excludes source code and source code listings.
1.63 [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
1.64 [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
1.65 [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
1.66 [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
1.67 [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
1.68 [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
1.69 [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
1.70 [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
1.71 [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
1.72 [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
14
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
1.73 SOFTWARE
"SOFTWARE" means custom Software and Licensed Software, including any
associated compiled program, routine, subroutine translation, compiler,
diagnostic routine, control software, and firmware. Software does not
include source code, source code listings and similar raw component
formats.
1.74 [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
1.75 [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
1.76 [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
1.77 [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
1.78 [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
1.79 [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
1.80 [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
1.81 ACCESS
SBC's Premises:
A. @Track shall when appropriate have reasonable access to SBC's premises
during normal business hours and at such other times as may be agreed
upon by the parties in order to enable @Track to perform its
obligations under this Agreement. @Track shall coordinate such access
with SBC's designated representative prior to visiting such premises.
@Track assures SBC that only persons employed by @Track or
subcontracted by @Track will be allowed to enter SBC's premises. If
SBC requests @Track or its Subcontractor to discontinue furnishing any
15
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
person provided by @Track or its Subcontractor from performing work on
SBC's premises, @Track shall immediately comply with such request.
Such person shall leave SBC's premises promptly and @Track shall not
furnish such person again to perform work on SBC's premises without
SBC's written consent.
B. SBC requires @Track or its subcontractor employees to exhibit
identification credentials, which SBC may issue in order to gain
access to SBC's premises for the performance of Services hereunder.
If, for any reason, any @Track's or @Track's subcontractor employees
are no longer performing such Services, @Track shall immediately
inform SBC. Notification shall be followed by the prompt delivery to
SBC of the identification credentials, if issued by SBC or a written
statement of the reasons why said identification credentials cannot be
returned.
C. @Track shall ensure that its personnel and subcontractor perform work
which conforms to SBC's practices and handbooks to protect GPS
Material, buildings or structures and to perform Services with care
and due regard for the safety, convenience and protection of SBC, its
employees and property, and members of the public.
D. In the event of theft or loss of property attributable to @Track,
@Track shall replace the property and/or reimburse SBC for replacement
value of the item.
E. @Track shall be responsible for ensuring that all persons furnished by
@Track work harmoniously with all others when on SBC's premises.
1.82 AFFILIATED COMPANY
"Affiliated Company" as used herein will be any present or future subsidiary,
affiliate or parent company of SBC. Subject to acceptance of an Order by @Track,
in accordance with the Order Acceptance clause herein, any Affiliated Company
that places an Order with @Track hereunder may incorporate into such Order the
terms and conditions of this Agreement. Such Affiliated Company will be
responsible for its own obligations including, but not limited to, charges
incurred in connection with such Order. Nothing in this Agreement will be
construed as requiring SBC to indemnify @Track for any acts or omissions of any
Affiliated Company.
1.83 AMENDMENTS AND WAIVERS
This Agreement may be amended or modified only by a written document signed by
the authorized representative of the party against whom enforcement is sought.
No course of dealing or failure of either party to strictly enforce any term,
right or condition of this Agreement shall be construed as a general waiver or
relinquishment of such
16
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
term, right or condition. Waiver by either party of any default shall not be
deemed a waiver of any other default.
1.84 ASSIGNMENT
Neither party hereto may assign, subcontract or otherwise transfer its rights or
obligations under this Agreement except with the prior written consent of the
other party hereto, which consent will not be unreasonably withheld; provided,
however, SBC will have the right to assign this Agreement to any present or
future affiliate, subsidiary or parent corporation of SBC, without securing the
consent of @Track and may grant to any such assignee the same rights and
privileges SBC enjoys hereunder. Any attempted assignment not assented to in the
manner prescribed herein, except an assignment confined solely to money due or
to become due, will be void. It is expressly agreed that any assignment of money
will be void if (a) @Track fails to give SBC at least thirty (30) days prior
written notice thereof, or (b) such assignment imposes or attempts to impose
upon SBC additional costs or obligations in addition to the payment of such
money or (c) denies, alters or attempts to alter any of SBC's rights.
1.85 BACKGROUND CHECK/DRUG SCREEN
@Track shall conduct a background check and drug screen for each employee or
subcontracted employee providing Services to SBC vehicles at SBC locations. The
background check shall identify whether any such individual has been convicted
of a felony. @Track agrees that no individual convicted of a felony and/or
positive drug screen will be permitted to provide Services in connection with an
Order submitted by SBC without SBC's written consent. These checks shall be
performed at no additional cost to SBC. @Track agrees that any individual who
tests positive on drug screening or has been convicted of a felony will not be
permitted to provide services in connection with an order submitted by SBC
without SBC's written consent.
1.86 CABLES AND RELATED ITEMS
Each Order will be deemed to include, at no additional charge unless otherwise
specified all cables necessary to operate all ordered Product at SBC's
Installation Site in accordance with the GPS Specifications.
1.87 CELLULAR SERVICE
Cellular service utilized by SBC shall be provided primarily by a wireless
carrier designated by SBC. However, in areas where the designated Wireless
carrier cannot provide cellular service or an alternate carrier cannot be
substituted for the designated wireless carrier's cellular service, SBC shall
request that @Track provide cellular service according to the rate identified
below. The rate in this section refer to the rates @Track provides cellular
service to SBC vehicles. The actual cellular service for the purpose of this
Agreement will be provided by @Track as follows, and in addition to the
17
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
monthly Network Services fees as outlined in Appendix II, Pricing, attached
hereto and by this reference made a part hereof:
[TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT. THE
OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
1.88 CHANGES & SUSPENSIONS
A. SBC may, by notice to @Track at any time before complete delivery is
made under any Order, request changes via a written Change Order,
attached hereto as Appendix III, and by this reference made a part
hereof within the general scope of such Order, including changes to
quantities, drawings, designs or GPS Specifications. Within a
reasonable time of receipt of the written Change Order, @Track shall
provide SBC with a Response to the Change Order including at a minimum
the estimated changes to prices, delivery dates, and the feasibility
of the implementation of changes to the GPS Specifications. SBC and
@Track must agree in writing to acceptance of the Change Order,
including any adjustments in prices or dates necessitated thereby and
shall execute a written revised Order reflecting such adjustments.
B. @Track may not, under any circumstances, rely on oral modifications to
any Order made under this Agreement.
C. If @Track desires to modify the Products and/or Services specified in
any Order, @Track shall provide written notice to SBC of the requested
modifications. SBC shall provide a written response to the request
within fifteen (15) days of the date of receipt of the request from
@Track. SBC shall approve the request if the Products and/or Services,
as modified, conform to the GPS Specifications. SBC has the right to
test any new, changed or revised Products and/or Services or have it
tested by its third party subcontractor prior to approval. If the
Products and/or Services do not conform to the GPS Specifications, SBC
shall have the right to reject such changes or modifications. In
addition, SBC shall reserve the right to determine whether a new
software change is applied.
1.89 CHANGES TO GPS MATERIAL
If @Track desires to modify the GPS Materials, @Track shall provide samples of
the GPS Materials and written notice to SBC of the requested modifications. SBC
shall provide a written response to the request within thirty (30) days of the
date of receipt of the request from @Track. SBC shall approve the request if the
GPS Materials, as modified, conform to the GPS Specifications. For purposes of
this clause, GPS Materials include GPS receiver, antenna, cellular Transceiver
and cellular antenna, microprocessor, handset, power supply, panic alarm, key
fob, modem and installation components such as the pedestal.
18
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
SBC has the right to test any new, changed or revised GPS Material or have it
tested by its third party subcontractor prior to approval. If the GPS Material
does not conform to the GPS Specifications, SBC shall have the right to reject
such changes or modifications. In addition, SBC shall reserve the right to
determine whether the new GPS Material is acceptable.
1.90 CLEAN UP
Upon completion of the installation of any Product hereunder, @Track will remove
promptly all @Track's tools, equipment, materials and debris from SBC's
premises.
1.91 COMPLAINTS
SBC reserves the right to notify @Track in cases where SBC has identified
current or potential problems or service area concerning the operation,
maintenance, engineering, installation or design of GPS Material furnished
hereunder. Whenever SBC exercises such right, @Track agrees to:
A. Accept such notice (hereinafter referred to as an "Engineering
Complaint") and respond appropriately to resolve the Engineering
Complaint. @Track agrees to review the standards contained in Bell
Communications Research, Inc. ("Bellcore") technical publication
GR-230-CORE, Issue 1, September 1994, entitled "Engineering Complaints
and Service Failure Analysis Reports" during the ninety (90) days
following the execution of this Agreement so that it can determine
whether it is feasible for @TRACK to comply with these standards. If
it is economically and operationally feasible for @TRACK to comply
with the Bellcore standards without material additional operational
expense on @TRACK's part, @TRACK agrees to use its best effort to
comply. -
B. Acknowledge receipt of such Engineering Complaint and advise SBC of
@TRACK's proposed organization responsible for resolving it within ten
(10) working days of @TRACK's receipt thereof.
C. Resolve such Engineering Complaints within ninety (90) calendar days
of the date of SBC's notice, unless a later date is mutually agreed
upon by the parties. If unable to resolve an Engineering Complaint
within said ninety (90)-day period, @TRACK will issue an "interim
report" as defined in GR-230-CORE.
D. Furnish to SBC a monthly report of the status of open Engineering
Complaints, in a mutually agreed upon medium, together with a proposed
schedule for their resolution.
E. Notify SBC in writing when an Engineering Complaint has been resolved.
19
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
1.92 COMPLIANCE WITH LAWS
@TRACK shall comply with the provisions of the Fair Labor Standards Act, the
Occupational Safety and Health Act and all other applicable federal, state,
county and local laws, ordinances, regulations and codes, including, but not
limited to, the procurement of permits, certificates, approvals, inspections and
licenses when needed, in the performance of this Agreement.
Southwestern Bell Telephone, L.P., Pacific Bell, Ameritech and Southern New
England Telephone as common carriers of telecommunications services, work as
contractors for various departments and agencies of the United States
Government, and, for that reason, work under their agreements may be subject to
certain Executive Orders, laws, and associated regulations. To the extent that
such Executive Orders, laws, and associated regulations apply to work under this
Agreement, and only to that extent, @TRACK agrees to comply with the provisions
of Appendix IV, Executive Orders and Associated Regulations attached hereto and
by this reference made a part hereof.
1.93 CONFLICT OF INTEREST
@TRACK represents and warrants that no officer, director, employee or agent of
SBC has been or will be employed, retained or paid a fee, or otherwise has
received or will receive any personal compensation or consideration, by or from
@TRACK or any of @TRACK's officers, director's employees or agents in connection
with the obtaining, arranging or negotiation of this Agreement or other
documents or agreements entered into or executed in connection herewith.
1.94 [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.
THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
1.95 CURE
SBC will not be deemed to be in default under any of the terms of this
Agreement, and @TRACK may not seek or attempt to enforce any remedy for any
claimed default, unless SBC fails to cure or correct same within thirty (30)
days following receipt of written notice thereof from @TRACK.
1.96 DELIVERY
A. @TRACK agrees to deliver all GPS Material on the Delivery Dates and to
the Installation Sites specified in the applicable Orders. SBC may
request delivery in advance of the Delivery Date specified in an Order
by notifying @TRACK in writing to that effect at least thirty (30)
days prior to the specified Delivery Date. If such advanced delivery
is accepted by @TRACK, SBC will amend the Order accordingly.
20
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
B. At any time, but not less than thirty (30) days prior to the Delivery
Date specified in an Order, SBC, by written notification to @TRACK,
may delay such Date, for a period not to exceed thirty (30) days.
C. @TRACK will assume full responsibility for dealing with carriers to
insure timely delivery of its shipments, locate missing or late
shipments, resolve billing for transportation charges and submit and
resolve all insurance claims arising from damage to its shipments.
1.97 [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.
THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
1.98 DISPUTES AND DISPUTE RESOLUTION
Any dispute arising out of or relating to this Agreement or the breach,
Termination, or validity thereof, not settled within thirty (30) days of written
notice of such dispute, shall be settled by arbitration in accordance with the
then current Center for Public Resources Rules for Non-Administered Arbitration
of Business Disputes by three independent and impartial arbitrators, of whom
each party shall appoint one and the two appointed arbitrators shall pick a
third arbitrator. The arbitration shall be governed by the United States
Arbitration Act, 9 U.S.C. Sections 1-16 and judgment upon the award rendered by
the arbitrators may be entered by any court having jurisdiction thereof. The
place of arbitration shall be Texas, or their environs at the discretion of the
party requesting arbitration. The arbitrators are not empowered to award damages
in excess of compensatory damages and each party hereby irrevocably waives any
right to recover such damages with respect to any dispute resolved by
arbitration. Final and binding arbitration in accordance with the procedures
specified in this Section shall be the sole and exclusive procedure for the
resolution of any such disputes.
1.99 DOCUMENTATION
@TRACK will provide, at no additional cost to SBC, at least two (2) copies of
each update or revision to such original Documentation to each Installation Site
and SBC's General Headquarters.
SBC will have the right to reproduce all printed material, Documentation, and
manuals supplied by @TRACK hereunder, provided that such reproduction is made
solely for SBC's internal use hereunder and includes any @TRACK copyright notice
contained in the original item being reproduced.
SBC may modify any Documentation for its internal use only and at its own
expense to meet its specific requirements. Should SBC request additional copies
of
21
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
the documentation, the additional copies shall be provided by @Track to SBC at a
price which shall be no more than @Track's cost to produce the documentation.
2.0 EMERGENCY EQUIPMENT
@TRACK agrees to make every reasonable effort to assist SBC in locating GPS
Material compatible with that furnished by @TRACK hereunder in the event of an
emergency, such as a major breakdown, fire or other disaster.
SBC, at its option, may accept or reject an offer by @TRACK to use emergency or
substitute GPS Material. If accepted, the charge for such use, if any, will be a
limited arrangement between SBC and @TRACK until permanent replacement GPS
Material is installed and accepted.
2.01 [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.
THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
2.02 FOB
GPS Material purchased hereunder will be shipped FOB Destination, prepay and
add, in accordance with the requirements of the clauses herein entitled SHIPPING
AND BILLING (Section 2.45) and TRANSPORTATION (Section 2.58).
2.03 FORCE MAJEURE
A. Neither party shall be deemed in default of this Agreement or any
Order to the extent that any delay or failure in the performance of
its obligations results from any cause beyond its reasonable control
and without its fault or negligence, such as acts of God, acts of
civil or military authority, embargoes, epidemics, war, riots,
insurrections, fires, explosions, earthquakes, floods, unusually
severe weather conditions or strikes.
B. If any Force Majeure condition occurs, @TRACK shall give immediate
notice to SBC and SBC may elect to either: (1) terminate the affected
Order(s) or any part thereof, (2) suspend the affected Order(s) or any
part thereof for the duration of the Force Majeure condition, with the
option to obtain elsewhere GPS Material and Services to be furnished
under such Order(s) and deduct from any commitment under such Order(s)
the quantity of the GPS Material and Services obtained or for which
commitments have been made elsewhere or (3) resume performance under
such Order(s) once the Force Majeure condition ceases, with an option
in SBC to extend any affected delivery or performance date up to the
length of time the Force Majeure condition endured. Unless SBC
22
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
gives written notice within thirty (30) days after being notified of
the Force Majeure condition, option (2) shall be deemed selected.
C. Failure of @TRACK's subcontractors or suppliers to deliver GPS
Material or perform Services shall not be deemed a Force Majeure
condition unless such failure or delay is a result of a Force Majeure
experienced by @TRACK's subcontractors or suppliers.
2.04 GOVERNING LAW
With respect to @Track and SBC, this Agreement and performance hereunder shall
be governed by the laws of the State of Texas.
2.05 QUALITY IMPROVEMENT
The parties agree to develop minimum performance standards to which the GPS
Materials comply. @TRACK and SBC agree to cooperate in good faith to develop
mutually acceptable methods for measuring compliance including the development
of acceptable testing methods and reporting criterion. The parties further agree
to adjust the performance minimums and credits specified in this Section based
upon the availability and accuracy of agreed upon testing and reporting methods
and actual historical reporting objectives.
2.06 HAZARDOUS MATERIALS AND REGULATED SUBSTANCES
A "Regulated Substance" as referenced in this clause is a generic term used to
describe all materials that are regulated by the federal or any state or local
government during transportation, handling and/or disposal. This includes, but
is not limited to, materials that are regulated as (a) "hazardous materials"
under the Hazardous Materials Act and the Control of Radioactive Contamination
of the Environment Law, Title 8 of the California Administrative Code, Section
5194, pursuant to the Hazardous Substances Information and Training Act, (b)
"chemical hazards" under Occupational Safety and Health Administration (OSHA)
standards, (c) "chemical substances or mixtures" under the Toxic Substances
Control Act, (d) "pesticides" under the Federal Insecticide, Fungicide and
Rodenticide Act, and (e) "hazardous wastes" as defined or listed under the
Resource Conservation and Recovery Act and the Hazardous Waste Control Law.
1. @TRACK shall comply with all applicable federal, state and local laws,
ordinances, codes, regulations and orders, including any notice
requirements (individually and collectively "Laws and Regulations"),
regarding any Material and Service ordered hereunder which involves
the handling or use of Materials or materials which consist of or
contain "hazardous materials" or "chemical hazards" or "chemical
substances or mixtures" or "pesticides" or "hazardous wastes". @TRACK
shall notify SBC and provide to SBC all necessary notification and
other information
23
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
(including but not limited to OSHA Material Safety Data Sheets) at
least thirty (30) days before shipping such Regulated Substances to
SBC or commencing the performance of Services for SBC involving the
handling or use of Regulated Substances.
2. Notwithstanding any other provisions of this Agreement, SBC shall have
the right, but not the duty, to terminate without liability any Order
for Materials or Services which involves the handling or use of
Regulated Substances within thirty (30) days after such notification
from @TRACK. Otherwise, SBC and @TRACK shall cooperate concerning the
acceptance by SBC of such Regulated Substances. @TRACK shall mark all
Materials and/or materials provided hereunder as Regulated Substances
which are required by all applicable Laws and Regulations to be so
marked, and shall provide assistance to SBC of an advisory nature in
the handling or use of Regulated Substances provided hereunder and the
disposal of "hazardous wastes", as defined by applicable Laws and
Regulations ("Hazardous Wastes"), resulting therefrom.
3. Regulated Substances and/or Hazardous Wastes provided or removed
hereunder shall be transported by @TRACK in accordance with the
requirements of the applicable Laws and Regulations, including, but
not limited to, those of the Department of Transportation and
California Highway Patrol, governing transportation of such Regulated
Substances and/or Hazardous Wastes.
4. @TRACK shall provide SBC with the same information pertaining to
Materials and Services which involve the handling or use of Regulated
Substances or Hazardous Wastes as @TRACK provides to @TRACK's
employees or agents involved in the disposition or treatment of such
Regulated Substances or Hazardous Wastes.
5. @TRACK further agrees to defend, indemnify and hold SBC harmless from
and against any damage, or expense (including attorneys' fees and
court costs) sustained by SBC because of @TRACK's noncompliance
herewith.
2.07 HEADINGS
Article, section or paragraph headings contained in this Agreement are for
reference purposes only and shall not affect the meaning or interpretation of
this Agreement.
24
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
2.08 @TRACK'S LIMITATION
EXCEPT FOR INDEMNITY AND INFRINGEMENT INDEMNITY OBLIGATIONS, SBC'S DAMAGES AND
@TRACK'S LIABILITY FOR DAMAGES UNDER ALL ORDERS SHALL BE LIMITED TO A REFUND OF
THE AMOUNTS PAID BY SBC FOR THE AFFECTED PRODUCT OR SERVICES. NEITHER PARTY
SHALL BE LIABLE TO THE OTHER FOR INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES
INCLUDING LOST PROFITS.
2.09 IDENTIFICATION OF SUPPLIER'S PERSONNEL AND EQUIPMENT
a. @Track's personnel while performing Work for SBC, shall carry and
display upon request identification showing that they are the
employees of @Track. @Track's personnel shall be responsible for
securing permission to enter upon private property when entry is
necessary to @Track's performance of the Service.
b. All of @Track's owned, leased or rented vehicles shall be marked with
@Track's identification, including, @Track's company name and
telephone number.
2.10 INDEPENDENT CONTRACTOR
@TRACK hereby declares and represents that @TRACK is engaged in an independent
business and shall perform its obligations under this Agreement as an
independent contractor and not as the agent or employee of SBC; that the persons
performing services hereunder are not agents or employees of the SBC; that
@TRACK has and hereby retains the right to exercise full control of and
supervision over the performance of @TRACK's obligations hereunder and full
control over the employment, direction, compensation and discharge of all
employees assisting in the performance of such obligations; that @TRACK shall be
solely responsible for all matters relating to payment of such employees,
including compliance with workers' compensation, unemployment, disability
insurance, social security, withholding and all other federal, state and local
laws, rules and regulations governing such matters; and that @TRACK shall be
responsible for @TRACK's own acts and omissions and those of @TRACK's agents,
employees and contractors during the performance of @TRACK's obligations under
this Agreement.
2.11 INFRINGEMENT
@TRACK agrees to indemnify and hold SBC harmless from and against any loss,
liability, damage or expense (including increased damages for willful
infringement, punitive damages, attorneys' fees and court costs) that may result
by reason of any infringement, or claim of infringement, of any trade secret,
patent, trademark, copyright or other proprietary interest of any third party
based on the normal use or installation of any GPS Material, Software,
Documentation, or program furnished to SBC hereunder, except to the extent that
such claim
25
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
arises from @TRACK's compliance with SBC's detailed instructions. Such
exception will not, however, include:
1. Merchandise available on the open market or the same as such
merchandise.
2. Items of @TRACK's origin, design or selection.
@TRACK warrants that it has made reasonable independent investigation (including
obtaining legal opinions) to determine the legality of its right to produce and
sell the GPS Material/Equipment provided herein.
If an injunction or order is obtained against SBC's use of any GPS Material,
Software, Documentation, or program, or if in @TRACK's opinion any GPS Material,
Software, Documentation, or program is likely to become the subject of a claim
of infringement, @TRACK will, at its expense:
1. Procure for SBC the right to continue using the GPS Material,
Software, Documentation, program; or
2. After consultation with SBC, replace or modify the GPS Material,
Software, Documentation, program or Service to make it a substantially
similar, functionally equivalent, non-infringing GPS Material,
Software, Documentation, program.
If the GPS Material, Software, Documentation, or program is purchased or
licensed and neither (1) or (2) above is possible, SBC may cancel the applicable
Order and require @TRACK to remove such GPS Material, Software, Documentation,
or program from SBC's location and refund on a prorated basis at a rate of
twenty percent (20%) per year for any charges paid therefor by SBC.
In no event will SBC be liable to @TRACK for any charges after the date that SBC
no longer uses and GPS Material, Software, Documentation, or program because of
actual or claimed infringement.
Each party hereto agrees to defend or settle, at its own expense, any action or
suit against the other party hereto, for which it is responsible under this
clause. Each party further agrees to notify the other party promptly of any
claim of infringement for which the other party is responsible hereunder and
cooperate in every reasonable way to facilitate the defense thereof.
In the event that @TRACK, after notification of any claim for which @TRACK is
responsible, does not assume the defense of such action, @TRACK will reimburse
SBC for all of its costs incurred in the defense of the claim, including, but
not limited to attorneys' fees and interest on such SBC's payment of said
amounts from the date of SBC's payments of said amounts.
26
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
2.12 INSPECTION
When so stated in SBC's Order, @TRACK agrees to (a) notify SBC or SBC's agent
when GPS Material is ready for inspection, (b) give SBC such reasonable
opportunity to inspect such GPS Material at any time prior to the scheduled
shipment date, and (c) provide without charge any production testing facilities
and personnel required to inspect the GPS Material under the inspection
instructions specified. Purchase of any GPS Material under this Agreement is
subject to SBC's inspection and acceptance after delivery. It is mutually agreed
that SBC or SBC's agent may develop inspection instructions which will be made a
part of this Agreement at a later date by written agreement of the parties.
Inspection or failure to inspect on any occasion will not affect SBC's rights
under warranty or other provisions of this Agreement.
2.13 INSTALLATION
@TRACK agrees to install, at the price specified in Appendix II, Pricing, all
GPS Material ordered hereunder, including all necessary cabling, connection with
SBC-supplied power, utility and communications services, and in all other
respects make the GPS Material ready for operational use.
The GPS Material will be deemed installed and ready for operational use at the
conclusion of a successful Acceptance Test performed at the Installation Site,
which demonstrates that the GPS Material meets minimum design capabilities.
@TRACK will provide SBC with written documentation of the successful Acceptance
Test and certify, by the Installation Date, that the GPS Material is ready for
operational use in accordance with SBC's Order. @TRACK's General Installation
and Testing Requirements are included in GPS Specifications.
2.14 INSURANCE
With respect to performance hereunder, and in addition to @TRACK's obligation to
indemnify, @TRACK agrees to maintain, at all times during the term of this
Agreement, the following minimum insurance coverages and limits and any
additional insurance and/or bonds required by law:
1. Workers' Compensation insurance with benefits afforded under the laws
of the state in which the Services are to be performed and Employers
Liability insurance with minimum limits of $100,000 for Bodily
Injury-each accident, $500,000 for Bodily Injury by disease-policy
limits and $100,000 for Bodily Injury by disease-each employee.
2. Commercial General Liability insurance with minimum limits of:
$2,000,000 General Aggregate limit; $1,000,000 each occurrence
sub-limit for all bodily injury or property damage incurred in any one
occurrence; $1,000,000 each occurrence sub-limit for Personal Injury
and Advertising; $2,000,000
27
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
Products/Completed Operations Aggregate limit, with a $1,000,000 each
occurrence sub-limit for Products/Completed Operations. Fire Legal
Liability sub-limits of $300,000 are required for lease agreements.
3. SBC Communications will be named as an Additional Insured on the
Commercial General Liability policy.
4. If use of a motor vehicle is required, Automobile Liability insurance
with minimum limits of $1,000,000 combined single limits per
occurrence for bodily injury and property damage, which coverage shall
extend to all owned, hired and non-owed vehicles.
5. SBC requires that companies affording insurance coverage have a B+ VII
or better rating, as rated in the A.M. Best Key rating Guide for
Property and Casualty Insurance Companies.
A certificate of insurance stating the types of insurance and policy
limits provided the @TRACK must be received prior to commencement of
any work. @TRACK shall also require all subcontractors who may enter
upon the work site to maintain the same insurance requirements listed
above.
2.15 LIABILITY
@TRACK shall indemnify, defend and hold harmless SBC (including its agents,
employees, officers, and directors) from and against any and all liability,
loss, damage, court cost, attorneys' fees or other expense of any kind which
arises out of any claim, demand, suit for damages, injunction or other relief,
on account of (a) injury to or death of any person, (b) damage to any property,
including theft, (c) public charges and penalties, or (d) any lien, caused by,
or resulting from the acts or omissions of the @TRACK (including any of its
@TRACKs, agents, or subcontractors but excepting the negligence or willful
misconduct solely of SBC or its employees) in furnishing the GPS Materials or
Services hereunder. This indemnity shall survive the delivery, inspection and
acceptance of the GPS Materials or Services hereunder.
@TRACK agrees to defend SBC, at no cost or expense to SBC, against any such
liability, claim, demand, suit or legal proceeding. SBC agrees to notify @TRACK
within a reasonable time of any written claims or demands against SBC for which
@TRACK is responsible under this clause.
2.16 LICENSES & PATENTS
No licenses, express or implied, under any patents are granted by SBC to @TRACK
under this Agreement.
28
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
2.17 M/WBE-DVBE PARTICIPATION PLANS AND REPORTS
@TRACK commits to goals for the participation of M/WBE and DVBE firms (as
defined in the Section entitled "MBE/WBE/DVBE Cancellation Clause) as follows:
[TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT. THE
OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.] annual MBE
participation; [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]annual
WBE participation; and [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE
SEC.]annual DVBE participation. These goals apply to all annual expenditures by
any entity pursuant to this Agreement with @TRACK.
Attached hereto and incorporated herein as Exhibit A is form for @TRACK to
complete Prime Supplier MBE/WBE/DVBE Commodity Product Subcontracting Plan which
will outline its M/WBE-DVBE goals and specific and detailed plans to achieve
those goals. @TRACK will submit an updated Participation Plan annually by the
first week in May. @TRACK will submit M/WBE-DVBE Results Reports quarterly by
the end of the first week following the close of each quarter, using the form
attached hereto and incorporated herein as Exhibit B, Participation Plans and
Results Reports will be submitted to the Prime Supplier Results Manager. The
MBE/WBE/DVBE plan that @Track submits will be compliant with the goals outlined
in the previous plan submitted. Once completed the revised Plan will be attached
to this Agreement as Exhibits A and B.
2.18 MBE/WBE/DVBE CANCELLATION
1. @TRACK agrees that falsification or misrepresentation of, or failure
to report a disqualifying change in, the MBE/WBE/DVBE status of @TRACK
or any subcontractor utilized by @TRACK; or @TRACK's failure to
cooperate in any investigation conducted by SBC, or by SBC's agent, to
determine @TRACK's compliance with this section, will constitute a
material breach of this Agreement. In the event of any such breach,
SBC may, at its option, cancel ("Cancel") this Agreement upon twenty
(20) days' notice. @TRACK acknowledges and agrees that SBC's right to
Cancel is absolute and unconditional, and SBC shall not be subject to
liability, nor shall @TRACK have any right to suit for damages as a
result of such cancellation.
2. For purchases under this Agreement by Pacific Bell, Pacific Bell
Directory, Pacific Bell Mobile Services, Pacific Bell Information
Services, Pacific Bell Communications, and any other entity operating
principally in California (collectively "California Affiliates"),
Minority and Women Business Enterprises (MBEs/WBEs) are defined as
businesses which satisfy the requirements of paragraph 3 below and are
certified as MBEs/WBEs by the California Public Utilities Commission
Clearinghouse ("CPUC-certified").
29
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
3. For purchases under this Agreement by any entity that is not a
California Affiliate, MBEs/WBEs are defined as businesses, which
satisfy the requirements of, paragraph 3. below and are either
CPUC-certified or are certified as MBEs/WBEs by a certifying agency
recognized by SBC.
4. MBEs/WBEs must be at least 51% owned by a minority individual or group
or by one or more women (for publicly-held businesses, at least 51% of
the stock must be owned by one or more of those individuals), and the
MBEs/WBEs' management and daily business operations must be controlled
by one or more of those individuals, and these individuals must be
either U.S. citizens or legal aliens with permanent residence status.
For the purpose of this definition, minority group members include
male or female Asian Americans, Black Americans, Filipino Americans,
Hispanic Americans, Native Americans (i.e., American Indians, Eskimos,
Aleuts and Native Hawaiians), Polynesian Americans, and multi-ethnic
(i.e., any combination of MBEs and WBEs where no one specific group
has a 51% ownership and control of the business, but when aggregated,
the ownership and control combination meets or exceeds the 51% rule).
"Control" in this context means exercising the power to make policy
decisions. "Operate" in this context means actively involved in the
day-to-day management of the business and not merely acting as
officers or directors.
5. For purchases under this Agreement by California Affiliates, Disabled
Veteran Business Enterprises (DVBEs) are defined as business concerns
that satisfy the requirements of paragraph 5 below and are certified
as DVBEs by the California State Office of Small and Minority Business
(OSMB). The DVBE must be a resident of the State of California, and
must satisfy the requirements of paragraph 5 below.
For purchases under this Agreement by any entity that is not a
California Affiliate, DVBEs are defined as any business concern that
satisfies the requirements of paragraph 5 below and is either a
defined DVBE for purchases by California Affiliates, or is certified
as a DVBE by a certifying agency recognized by SBC.
6. The DVBE must be (1) a sole proprietorship at least 51% owned by one
or more disabled veterans; or (2) a publicly-owned business in which
at least 51% of the stock is owned by one or more disabled veterans;
or (3) a subsidiary which is wholly owned by a parent corporation, but
only if at least 51% of the voting stock of the parent corporation is
owned by one or more disabled veterans; or (4) a joint venture in
which at least 51% of the joint venture's management and control and
earnings are held by one or more disabled veterans. In each case, the
management and control of the daily business operations must be by one
or more disabled veterans. A disabled veteran is a veteran of the
military, naval or air service of the United States with a
service-connected disability.
30
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
"Management and control" in this context means exercising the power to
make policy decisions and actively involved in the day-to-day
management of the business and not merely acting as officers or
directors.
2.19 [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.
THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
2.20 NO THIRD PARTY BENEFICIARIES
The provisions of this Agreement are for the benefit of the parties and not for
any other person.
2.21 NON-EXCLUSIVE MARKET RIGHTS
It is expressly understood and agreed that this Agreement does not grant @TRACK
an exclusive privilege to provide to SBC any or all GPS Material and Services of
the type described in this Agreement. It is, therefore, understood that SBC may
contract with other manufactures and suppliers for the procurement or trial of
comparable products and services and that SBC may itself perform the Services
described herein.
2.22 NON-INTERVENTION
In connection with the provision of GPS Material and Services by @TRACK to SBC,
@TRACK agrees that @TRACK, either directly or indirectly, shall not
intentionally attempt to influence any regulatory, legislative, or judicial body
so as to, prevent, or delay the offering of products or services by SBC which
utilize the GPS Material or Services supplied by @TRACK.
2.23 NON-WAIVER
No course of dealing or failure of either party to enforce strictly any term,
right or condition of this Agreement will be construed as a waiver of such term,
right or condition. The waiver by any party hereto of any default of any other
party hereto hereunder will not be deemed a waiver of any other prior or
subsequent defaults of any other party hereto. The express provision herein for
certain rights and remedies of the parties hereto are in addition to any other
legal and equitable rights and remedies to which the parties hereto would
otherwise be entitled.
2.24 NOTICES
Unless otherwise specifically provided in this Agreement or in any applicable
Order, all notices required or permitted by this Agreement shall be in writing
and may be delivered personally via courier or overnight delivery service, or
may be sent by facsimile or registered mail, return receipt requested, to the
following addresses, unless the parties are subsequently notified of any change
of address in accordance with this Section:
31
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
If to:
[TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.
THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
If to SBC:
[TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.
THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
If to Affiliate:
(Affiliate Name)
(Affiliate Street Address)
(Affiliate City State Zip)
(Attention: Affiliate Contact Person)
Facsimile: (Affiliate Fax Number)
Any notice shall be deemed to have been received as follows: (1) by personal
delivery upon receipt; (2) by facsimile upon receipt; (3) by certified mail,
five (5) business days after delivery to the U.S. postal authorities by the
party serving notice. If notice is sent by facsimile, a confirming copy of the
same shall be sent by mail to the same address.
The address to which notices or communications may be given by either party may
be changed by written notice given by such party to the other pursuant to this
paragraph entitled "Notices".
2.25 [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.
THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
2.26 ORDER ACCEPTANCE
@Track agrees to acknowledge in writing to SBC receipt of each Order within ten
(10) days of such receipt. @Track will have the right to reject any Order for
(a) failure of SBC to provide all ordering information required by this
Agreement or (b) failure of SBC to allow @Track reasonable time to supply the
items requested. @Track will also have the right to reject an Order, which
includes additional special terms and conditions not previously agreed to.
@Track will indicate in its written acknowledgment to SBC whether the Order was
accepted or rejected and, if rejected, the reasons therefor. Acceptance of any
Order by @Track will bind both parties to honor dates, amounts and other
ordering information shown thereon, including supplemental provisions contained
therein.
32
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
2.27 ORDER OF PRECEDENCE
In the event of a conflict or inconsistency between this Agreement and any
Order, the Order shall control. Except for such Order, the terms of this
Agreement shall not be deemed waived, amended or modified.
2.28 PERSONNEL EMPLOYMENT
For the term of this Agreement and for twelve (12) months after termination,
each party agrees that it shall not directly or indirectly, solicit, divert or
hire away, or attempt to solicit, divert or hire away, any agent, or employee of
the other party without prior written consent of the other party.
2.29 PLANT AND WORK RULES
Each party's employees and agents will, while on the premises of the other or at
any other location while performing Services under this Agreement for SBC,
comply with all SBC rules and policies, including its "Code of Business
Conduct", a copy of which is available upon request, which prohibits the
possession of any weapon or implement which might be used as a weapon on SBC
properties. Either party will have the right to have the other party removed and
replace personnel, which in its opinion is not conforming to its rules or
policies. In addition, the parties agree that, where required by government
regulations, it will submit satisfactory clearance from the U. S. Department of
Defense and/or other federal authorities concerned.
2.30 POINTS OF CONTACT
For the purpose of this Agreement the contacts shall be as follows:
[TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.
THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
2.31 [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.
THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
2.32 [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.
THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
2.33 PUBLICITY
@Track shall not use SBC's name or any language, pictures or symbols which
could, in SBC's judgment, imply SBC's identity or endorsement by SBC or any of
its
33
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
employees in any (a) written, electronic or oral advertising or presentation or
(b) brochure, newsletter, book, electronic database or other written material of
whatever nature, without SBC's prior written consent (hereafter the terms in
this clause (a) and (b) shall be collectively referred to as "publicity
matters"). @Track will submit to SBC for written approval, prior to publication,
all publicity matters that mention or display SBC's name and/or marks or contain
language from which a connection to said name and/or marks may be inferred or
implied.
2.34 PURCHASE PROVISIONS
1. SCOPE
a. Subject to the terms and conditions of this Agreement, @TRACK
shall provide to SBC such Products and Services as are ordered by
SBC hereunder. As used herein, Services shall include engineering
and installation of Products ordered hereunder and all other
Services provided in connection with the applicable Products.
2. Each such Order shall be numbered and shall include at least the
following items whenever such item is applicable to the Products and
Services covered by such Order:
a. The date of the Order;
b. The incorporation of this Agreement by reference;
c. A complete list of the products and Services covered by the
Order, specifying, attaching or referencing the quantity, model
number, program name or identification number, and description
for each;
d. The price of each Product and Service, including discounts (if
any), and any additional charges and costs;
e. Shipping instructions;
f. The destination to which the Products will be delivered and the
date and time for scheduled delivery;
g. The scheduled Installation Date;
h. The scheduled performance dates for the Services; and
i. Any special terms and conditions.
Orders shall be shipped complete unless SBC authorizes otherwise, in advance, by
writing.
2.35 QUALITY ASSURANCE
SBC expects and requires @Track to have a high quality process operating within
@Track's facilities to which GPS Material purchased hereunder will be subject.
SBC considers ANSI/ISO/ASQ/9001 or ANSI/ASQC Q9002 registration to be of great
value to both the @Track and the SBC, and the @Track is encouraged, but not
required, to seek ANSI/ISO//ASQ Q9001-2000 registration if they are not
currently registered. In
34
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
addition, @Track's Quality Program Specifications are attached hereto as
Appendix V and by this reference made a part hereof.
@Track hereby agrees that GPS Material furnished hereunder by @Track will be
subject to:
@Track's quality control activities and procedures, as accepted and
approved by SBC, including but not limited to any performance measurements,
testing, quality process reviews or inspections to implement such
procedures.
When requested by SBC, @Track will at no additional charge:
1. Notify SBC or SBC's Agent when GPS Material is ready for examination
and give SBC or SBC's Agent reasonable opportunity to examine same at
any time prior to the scheduled shipment date thereof.
2. Provide SBC or SBC's Agent with copies of @Track's Quality Manual,
current inspection procedures and product specifications for the GPS
Material furnished hereunder.
3. Maintain and make available to SBC or SBC's Agent the data, including
all information and reports about @Track's quality control procedure,
which demonstrate that the GPS Material meets the specified quality
and reliability requirements.
4. Provide SBC or SBC's Agent, at no charge, with access to @Track's test
equipment, facilities, data and specifications, assistance from
@Track's personnel and sufficient working space to enable SBC or SBC's
Agent to perform said quality assurance examination and/or process
surveillance and/or a review of @Track's total quality program at
@Track's facilities.
5. @Track hereby agrees that SBC or its representative may perform a
quality assurance examination/inspection of GPS Material purchased
hereunder at @Track's facility at any time prior to the scheduled
shipment date, and will provide SBC or its representative
accessibility to its facility to do so. Nothing contained herein will
affect SBC's rights hereunder, under any warranty, or under any other
provisions of this Agreement. The purchase of any GPS Material under
this Agreement is subject to SBC's inspection and acceptance after
delivery.
2.36 RECORDS AND AUDIT
A. For the purposes of this Agreement, @Track shall maintain complete and
accurate records of all amounts billable to and payments made by SBC
hereunder in accordance with standard recognized accounting practices.
35
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
@Track shall retain such records for a period of three (3) years from
the date of final payment for GPS Material covered by this
authorization and maintain reasonable billing detail for the time
specified. @Track agrees to provide reasonable supporting
documentation concerning any disputed amount of invoice to SBC within
thirty (30) calendar days after receipt of written notification of
such dispute. @Track further agrees SBC shall have the right through
its accredited representatives to inspect and audit, during normal
business hours, the time and material charges involved to SBC under
this authorization. This right to audit shall be limited to validating
the accuracy of its resources utilized and associated charges to SBC
and expressly excludes records and information pertaining to any other
customers, or @Track's accounting policies or practices. Should SBC
request an audit, @Track will make available the pertinent utilization
records and files. All costs directly attributable to such audit shall
be paid by SBC.
B. @Track agrees to maintain complete and accurate records related to
criminal background checks, drug screens and confidentiality
agreements on @Track's personnel provided to SBC to perform Services.
Such records are to be maintained during the time that said employee
is providing Services to SBC. Should SBC request an audit, @Track will
produce the documentation in the timeframe requested by SBC.
2.37 REGISTRATION
When GPS Material furnished under this Agreement is subject to Part 68 of the
Federal Communications Commission's Rules and Regulations ("FCC Rules and
Regulations") as may from time to time be amended, @Track warrants that such GPS
Material is registered under and complies with Part 68 of such FCC Rules and
Regulations including, but not limited to, all labeling and customer instruction
requirements. @Track agrees to indemnify and hold SBC harmless from and against
any liability, claims or demands (including costs of defense and attorneys'
fees) that may be made because of @Track's noncompliance with Part 68 of the FCC
Rules and Regulations. @Track agrees, at its expense, to defend SBC, at SBC's
request, against such liability, claim or demand, provided, however, that @Track
shall (1) keep SBC fully informed as to the progress of such defense, and (2)
afford SBC, at its own expense, an opportunity to participate on an equal basis
with @Track in such defense.
2.38 RELEASES VOID
Neither party shall require waivers or releases of any personal rights from
representatives of the other in connection with visits to its premises and no
such releases or waivers shall be pleaded by either party in any action or
proceeding.
2.39 RELOCATION
@Track agrees to prepare for relocation and reinstall GPS Material purchased
hereunder at SBC's expense. The charge will Maintenance Services flat rate as
specified in Appendix II, Pricing.
36
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
2.40 REMEDIES CUMULATIVE
Any rights of cancellation, termination, liquidated damages or other remedies
prescribed in this Agreement are cumulative and are not exclusive of any other
remedies to which the injured party may be entitled, including but not limited
to, the remedies of specific performance and cover; however, neither party shall
retain the benefit of inconsistent remedies.
2.41 RESPONSIBILITIES
The basic responsibilities of each party are outlined below.
-- [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SEC.]
2.42 RISK OF LOSS
SBC will be relieved from all risk of physical loss, damage or destruction to
the GPS Material during the period the GPS Material is in transit or in the
possession of @Track up to and including the date Acceptance Date thereof,
except for any loss or damage caused solely by the negligence or willful
misconduct of SBC. After the Acceptance Date, SBC will assume all risk of loss,
damage or destruction to the GPS Material, except for any loss or damage caused
by the negligence or willful misconduct of @Track, its agents of employees.
2.43 SBC AND @TRACK INFORMATION
Any specifications, drawings, sketches, models, samples, tools, computer or
other apparatus programs, component lists, @Track lists, pricing lists,
documentation, technical information or business information or data, written,
oral or otherwise (all hereinafter designated "Information"), furnished to one
party by the other under this Agreement or in contemplation hereof will remain
the disclosing party's property. All copies of such Information in written,
graphic or other tangible form will be returned to the disclosing party upon
request. Information will be kept confidential by the parties (including the
agents, employees, and affiliates of each) in performing under this Agreement
and may not be used for any other purposes except upon such terms as may be
agreed upon between @Track and SBC in writing.
2.44 SEVERABILITY
If any provision or any part of provision of this Agreement shall be invalid or
unenforceable, such invalidity or non-enforceability shall not invalidate or
render
37
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
unenforceable any other portion of this Agreement. The entire Agreement will be
construed as if it did not contain the particular invalid or unenforceable
provision(s) and the rights and obligations of the @Track and SBC will be
construed and enforced accordingly.
2.45 SHIPPING AND BILLING
@Track will at its expense:
1. Ship Orders complete unless instructed otherwise by SBC.
2. Ship to the destination designated in an Order in accordance with
specific routing instructions.
3. Enclose a packing memorandum with each shipment and, when more than
one (1) package is shipped, identify the one containing the
memorandum.
4. Mark the Order number and Product identification on all packages,
subordinate documents and shipping papers.
5. Render invoices showing the Order number, through routing and weight.
6. Render separate invoices for each shipment or Order.
On written request of SBC, @Track will mail Bills of Lading, shipping notices
and copies of transportation bills with copies of @Track's invoices to the
address indicated on said request.
@Track will limit billing on repair invoices to one (1) invoice per repair
Order.
SBC shall reimburse @Track for any transportation charges incurred in delivery
of the GPS Materials to SBC. @Track will include the transportation charges from
the F.O.B. point to the destination as a separate charge on @Track's invoice for
the GPS Materials. Adequate protective packaging will be furnished by @Track at
no additional charge. Shipping and routing instructions may be altered as
mutually agreed upon by @Track and SBC without written notice. C.O.D. shipments
will not be accepted. All claims for monies due or to become due from SBC will
be subject to deductions by SBC for any setoff or counterclaim for monies due or
to become due from @Track, whether under this Agreement or otherwise.
2.46 [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.
THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
38
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
2.47 SURVIVAL OF OBLIGATIONS
The obligations of either party to this Agreement which by their nature would
continue beyond the termination, cancellation or expiration hereof, including,
by way of illustration only and not limitation, those in the clauses entitled
Compliance with Laws, Insurance, Liability, Publicity, Releases Void,
Severability, SBC and @Track Information and Warranty, will survive the
termination, cancellation or expiration of this Agreement.
2.48 TAXES
@Track will invoice SBC the amount of any federal excise taxes or state or local
sales taxes, if any, imposed upon the sale of GPS Material as separate items,
listing the taxing jurisdiction imposing the tax. Software and all Services will
be separately stated on the applicable invoice. SBC agrees to pay such amounts
to @Track. With respect to services, SBC will pay all applicable taxes and
equivalent government assessments in addition to the pricing set forth in this
Agreement.
SBC shall pay, in addition to the charges due hereunder for the Products and/or
Services, all applicable federal, state, local sales, use, and /or excise taxes
or surcharges. @Track will invoice SBC the amount of any federal excise taxes or
state or local sales taxes imposed upon the sale of GPS Material as separate
items, listing the taxing jurisdiction imposing the tax. SBC agrees to pay such
amounts to @Track.
@Track agrees to pay, and to hold SBC harmless from and against, any penalty,
interest, additional tax or other charge that may be levied or assessed as a
result of the delay or failure of @Track, for any reason, to pay any tax or file
any return or information required by law, rule or regulation or by this
Agreement to be paid or filed by @Track. @Track agrees to pay and to hold SBC
harmless from and against any penalty or sanction assessed as a result of @Track
doing business with any country subject to U.S. trade restrictions.
2.49 SPECIAL TAX PROVISIONS
The following tax sections shall apply only to sales of products which occur in
the state of California and/or other states where the statutory taxation scheme
imposes the legal obligation to pay state, local and/or municipal sales taxes
upon the seller of products, rather than the buyer of products, and which allows
the seller to contractually shift the legal obligation to pay said state, local
and/or municipal sales taxes to the buyer.
a. Upon SBC's request, the parties shall consult with respect to the
basis and rates upon which @Track shall pay any taxes for which SBC is
obligated to reimburse @Track under this Agreement. If SBC determines
that in its opinion any such taxes are not payable or should be paid
on a basis less than the full price or at rates less than the full tax
rate, @Track shall make payment in accordance with such
determinations. If collection
39
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
is sought by the taxing authority for a greater amount of taxes than
that so determined by SBC, @Track shall promptly notify SBC. If SBC
desires to contest such collection, SBC shall promptly notify @Track.
If SBC determines that in its opinion it has reimbursed @Track for
sales or use taxes in excess of the amount which SBC is obligated to
reimburse @Track, SBC and @Track shall consult to determine the
appropriate method of recovery of such excess reimbursements. @Track
shall credit any excess reimbursements against tax reimbursements or
other payments due from SBC if and to the extent @Track can make
corresponding adjustments to its payments to the relevant tax
authority. At SBC's request, @Track shall timely file any claims for
refund and any other documents required to recover any other excess
reimbursements, and shall promptly remit to SBC all such refunds (and
interest) received.
b. Although @Track shall cooperate with and provide reasonable assistance
to SBC, SBC shall direct the conduct of any proceedings, hearings or
litigation involved in any contest with respect to taxes for which SBC
is obligated to reimburse @Track under this Agreement. SBC shall
reimburse @Track for any taxes, interest, penalties or out of pocket
expenses reasonably incurred with SBC's advance written approval, such
as travel expenses of witnesses appearing in such proceedings, which
@Track may be required to pay because of @Track's complying with SBC's
determinations with respect to the payment of contesting of any such
taxes.
c. If any taxing authority advises @Track that it intends to audit @Track
with respect to any taxes for which SBC is obligated to reimburse
@Track under this Agreement, @Track shall (1) promptly so notify SBC,
(2) afford SBC an opportunity to participate on an equal basis with
@Track in such audit with respect to such taxes and (3) keep SBC fully
informed as to the progress of such audit. Each party shall bear its
own expenses with respect to any such audit, and the responsibility
for any additional tax, penalty or interest resulting from such audit
shall be determined in accordance with the applicable provisions of
this Section. @Track's failure to comply with the notification
requirements of this section shall relieve SBC of its responsibility
to reimburse @Track for taxes only if @Track's failure materially
prejudiced SBC's ability to contest imposition or assessment of those
taxes.
40
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
2.50 TECHNICAL REQUIREMENTS AND SPECIFICATIONS
Product Technical Requirements and Specifications:
The GPS Material and Services shall comply with the GPS Specifications as
described in all Appendices or Exhibits, attached hereto and incorporated
into this Agreement by reference and such other requirements and
specifications as may be mutually agreed to by the parties.
2.51 "TERM OF AGREEMENT"
1. This Agreement is effective as of January 31, 2002 and, unless
Terminated or Canceled as provided in this Agreement, shall remain in
effect for a term ending on January 30, 2003. SBC shall have the
option to renew this Agreement for a one year term (January 31, 2003
through January 30, 2004.) SBC may extend the term of this Agreement
by mutual consent thereafter by notification in writing to @Track.
2. The Termination, Cancellation or expiration of this Agreement shall
not affect the obligations of either Party to the other Party pursuant
to any Order previously executed hereunder, and the terms and
conditions of this Agreement shall continue to apply to such Order as
if this Agreement were still in effect.
41
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
2.52 TERMINATION AND CANCELLATION
If either party is in material breach of an obligation hereunder, the party in
breach shall have the period(s) defined below from the date of written notice
thereof to cure such breach:
1. Thirty (30) days from the date of written notice specifying the breach
in sufficient detail, followed by an additional forty five (45) day
after written notice of intent to cancel.
If the breach is not cured within such applicable cure period, the party not in
breach may cancel this Agreement.
2.53 TIME IS OF THE ESSENCE
@Track understands that SBC's business and operations require the delivery of
GPS Material and the performance of Services hereunder be accomplished in the
period of time and by dates specified in the applicable Order. Therefore, it is
agreed that TIME IS OF THE ESSENCE in the delivery of GPS Material and the
performance of Services. In determining a period of time, the date upon which
action is taken to start the period shall not be counted and the period shall
end with the close of business on the last designated day of the period.
2.54 TIMELY PERFORMANCE
If @Track learns of anything that might prevent the timely delivery of the
Products and/or performance of the Services, @Track will immediately notify SBC
of all relevant information concerning the potential delay.
2.55 TITLE
Title to GPS Material purchased pursuant to this Agreement will remain in @Track
until the Acceptance Date thereof, at which time title will pass to SBC. Upon
receipt of payment, @Track will furnish SBC a Bill of Sale and all other
documents requested by SBC to enable it to perfect unencumbered title to the GPS
Material.
42
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
2.56 [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.
THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
2.57 TRAINING
@Track will provide SBC, training materials and technical support to enable SBC
to properly and effectively use the GPS Material ordered hereunder.
Training will be provided for a mutually agreed to number of SBC personnel per
course. Initial training will normally be provided prior to or concurrent with
the Installation Date of the GPS Material at each applicable Installation Site;
provided, however, that Acceptance Testing of the GPS Material will not commence
until such training has been provided. Such training will be conducted at the
Installation Site or at other sites selected by SBC, and on dates which are
mutually agreeable to @Track and SBC.
At SBC's request, @Track will provide additional training classes from time to
time at a site selected by SBC or at @Track's site. SBC may also acquire kits of
training materials and may conduct its own courses. SBC will pay for such
additional training classes, or for such kits of training materials, at @Track's
standard published charge of $500 per day, for a single instructor, for such
services, less any applicable discounts. In the event of additional training at
SBC's site, reasonable expenses for travel and lodging for the trainer will be
paid by SBC, provided that reasonable supporting documentation is submitted by
@Track therefor.
SBC may reproduce any training material originated by @Track for the purpose of
training SBC's own personnel. Any such reproductions will include any copyright
or similar proprietary notice contained in the items being reproduced.
2.58 TRANSPORTATION
All transportation charges applicable to GPS Material both from and to @Track's
plant are to be paid by SBC; provided, however, that @Track will bear the cost
of transportation for GPS Material (a) shipped for mechanical replacement
purposes covered under any applicable Warranty, (b) removed as a result of GPS
Material failure while covered under any applicable Warranty, whether for the
convenience of @Track or pursuant to a demand by SBC as provided herein, and (c)
removed as a result of a default by @Track of any of the terms and conditions of
this Agreement or any Order.
@Track will prepay transportation and handling charges for all GPS Material
ordered hereunder and list same as separate items on @Track's invoice therefor.
Transportation charges to ship empty packing cases will be paid by @Track except
when the GPS Material is moved at SBC's request from one SBC Installation Site
to another.
43
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
Transportation charges payable by SBC will not exceed the cost of shipment
between SBC's location and the location of @Track's nearest plant of manufacture
of the GPS Material being shipped, regardless of the actual point of origin or
destination of the GPS Material.
SBC will pay only those rigging or drayage costs incurred at SBC's Installation
Site, except when @Track is responsible for payment of transportation charges as
stated above.
2.59 UNIVERSAL DESIGN
o @Track advocates and supports and encourages its suppliers to advocate
and support the manufacturing and provision of products that embrace
the concept of "universal design". @Track shall use its reasonable
efforts to manufacture and provide products, including future versions
of Products, to make it's products accessible to the widest range of
consumers including those with disabilities.
o @Track agrees to reasonably cooperate with SBC in addressing
disability access issues, including hearing aid interference, that may
arise in connection with SBC's customer's use of @Track's Products
furnished hereunder. Specifically @Track agrees:
A. to ensure that its equipment is designed, developed and
fabricated to be accessible to and usable by people with
disabilities, and
B. to ensure that the service is accessible to and usable to people
with disabilities, or
C. to ensure that the equipment or service is compatible with
existing peripheral devices or specialized customer premises
equipment commonly used by individuals with disabilities to
achieve access, if the requirements of subsection 1 and 2 are not
readily achievable.
2.60 [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.
THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
2.61 WORK DONE BY OTHERS
If any part of the work is dependent upon work done by others, @Track shall
inspect and promptly report to SBC any defect that renders such other work
unsuitable for @Track's proper performance. @Track's silence shall constitute
approval of such other work as it is fit, proper and suitable for @Track's
performance of the work. @Track shall be entirely responsible for all persons
furnished by @Track working in harmony with all others when working on SBC's
premises.
44
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
2.62 WORK HEREUNDER
It is understood that visits by representatives of @Track or its suppliers for
inspection, adjustment or other similar purposes in connection with GPS Material
purchased hereunder will for all purposes be deemed "work hereunder" and will be
at no charge to SBC unless otherwise agreed in writing with SBC.
45
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
SECTION B - SOFTWARE LICENSE
2.63 GENERAL
@Track agrees to supply to SBC, under the terms and conditions set forth in this
Agreement, all Software and associated Documentation specified in an Order
submitted to @Track pursuant hereto.
2.64 GRANT OF LICENSE
@Track hereby grants to SBC a perpetual, non-exclusive, irrevocable,
royalty-free Enterprise License/Site License/CPU License (the "License") to use
the Software Products specified in Orders for any business purpose of SBC or its
Affiliated Companies. No right of sublicense is granted to SBC.
SBC may also alter tables and other user modifiable parameters as provided in
the GPS Specifications applicable to the Software Products. SBC shall also have
the right to create copies of machine readable Software Products and any source
code provided or acquired hereunder for backup and recovery purposes.
All materials developed or produced by SBC through use of the Software Products
shall remain the property of SBC and/or Affiliated Companies. SBC shall not use,
print, copy, modify, translate, alter, decompile, reverse engineer or display
the Software Products, in whole or in part, except as expressly provided for in
this Agreement.
2.65 DOCUMENTATION UPDATES
@Track agrees to provide updates to Documentation furnished to SBC hereunder,
which is related to the use and support of the Software. @Track will also
provide periodic newsletters concerning the programs, Software enhancements,
programming notes, and Documentation corrections to the SBC liaison support
associated with such Software.
In the event of an emergency out-of-service condition caused by defective
Software or a disaster or other occurrence wherein SBC's copy of such Software
is destroyed or rendered unusable, @Track agrees to ship a replacement copy of
the current version of such Software as installed at SBC's Installation Site(s)
within two (2) workdays of verbal notification by SBC. @Track also agrees that
there will be no charge to SBC for such replacement copy of the Software, other
than the cost of the media upon which the Software resides.
46
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
2.66 [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.
THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
2.67 FORM OF ORDER
An Order for Software will be written on SBC's Order form and will contain the
following information, if applicable:
1. The incorporation by reference of this Agreement.
2. The Installation Site(s).
3. The type of License (perpetual/annual).
4. The charge for the License being granted.
5. The date by which the Software will be delivered.
6. Data processing equipment model number and, if already installed its
serial number.
7. Any special terms and conditions agreed upon by the parties.
2.68 INSTALLATION OF SOFTWARE
If requested by SBC in the applicable Order, @Track agrees to install the
Software, at the Installation Site designated therein, at no charge to SBC.
Installation of the Software by SBC or @Track will consist of a version that
will perform in accordance with the corresponding published performance GPS
Specifications therefor and will include a demonstration of the Software's
features and functions using @Track's standard demonstration procedure of the
installed Software on SBC's computer system.
The purpose of the installation demonstration will be to confirm that all
Software ordered has been entered into SBC's program library and that such
Software functions in accordance with @Track's published performance GPS
Specifications associated therewith. The demonstration will be considered to be
successfully completed when the Software output results match the standard set
of results provided by @Track.
If @Track installs the Software, @Track will certify in writing to SBC, at the
successful completion of the installation demonstration that the Software has
been properly installed and performs in accordance with @Track's published
performance GPS Specifications applicable thereto. If SBC installs same, @Track
agrees to provide complete installation instructions with the Software and
telephone consultation, during @Track's business hours, on the proper
installation thereof at no additional charge to SBC.
47
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
2.69 SOFTWARE PRODUCT DELIVERY AND INSTALLATION
For each Software Product, @Track shall deliver, at no additional charge, at
least the following basic materials:
1. Executable Software.
2. System implementation instructions and required procedures.
3. User instructions.
4. Sample data.
5. Any other programs, routines, subroutines or related material @Track
has or may develop necessary for the general use of the Software
Products which are normally furnished to users of the Software
Products at no charge.
6. Documentation and GPS Specifications associated with the Software
Products.
7. Complete installation instructions.
No Software Products under any Order shall be deemed as delivered until all
Software Products required by that Order have been delivered, unless otherwise
agreed between the parties. @Track also agrees to provide, at no additional
charge, telephone consultation as necessary during @Track's normal business
hours, on the proper installation of the Software Products. In addition, upon
request by SBC, @Track agrees to install the Software Products at SBC's
location(s) for no additional charge.
SBC may exchange Software Products, at no charge, for an alternative, generally
available version of the Software Products for use on different platforms or
operating systems. In order to exchange, SBC must certify to @Track in writing
that all existing copies of the version of the Software Products to be replaced
have been returned or destroyed, except for archival copies which are
impractical to remove from SBC's backup tapes. In addition, SBC shall certify to
@Track in writing that use of the replaced Software Products shall cease (except
if use is required due to a regulatory proceeding as provided below).
Software Products shall be delivered to the site(s) specified on the Order. SBC
may copy the Software Products as necessary to distribute to SBC's various
platforms.
48
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
2.70 RELOCATION OF SOFTWARE
SBC may redesignate the location at which the Software will be installed, and
will notify @Track of such new location and the effective date of the
redesignation. Concurrent operation of the Software at a second location for a
period not to exceed six (6) months for the purpose of redesignating the
assigned use location will not require an additional license or charge. The term
"location" or "Installation Site" as used herein will mean each facility
designated by SBC on each particular Order at which the Software is to be
installed.
The License granted under an Order for a designated Installation Site may be
transferred: (a) to a back-up location if the computer(s) at the designated
Installation Site is/are inoperative due to malfunction, to performance of
preventative maintenance, to engineering changes or to changes in features or
model, until such computer(s) is/are restored to operative status and processing
of the data already entered in the computer(s) at the back-up location has been
completed, or (b) to one other location for assembly, compilation or use of the
Software if the specifications of the computer(s) at the designated Installation
Site are such that the Software cannot be assembled or compiled thereon.
2.71 RETURN OF SOFTWARE
Except as otherwise provided herein, SBC agrees to certify to @Track in writing,
within thirty (30) days after the termination or cancellation of any License
Order (except in the event of termination or cancellation due to default by
@Track), that use of the Software licensed thereunder shall cease (except if use
is required due to a regulatory proceeding as provided herein) and that the
original and all copies of all Software licensed thereunder have been destroyed
or returned to @Track. If continued use is required due to a decision or order
of a regulatory body, SBC shall notify @Track and make arrangements for
necessary use of the Software. However, any output created or generated through
use of the Software shall remain the property of SBC, and it shall not be
returned to @Track.
2.72 RIGHT TO REPRODUCE MATERIAL AND DOCUMENTATION
SBC will have the right to reproduce all printed material, Documentation and all
machine-readable Software supplied by @Track hereunder, provided that such
reproduction of printed material and Documentation is made solely for SBC's
internal use. Any such reproductions will include any @Track notice contained in
the original items being reproduced.
In the case of severe Equipment failure, SBC may transfer this copy to temporary
Equipment. Any copies will be removed from the temporary Equipment when the
Equipment or Software is restored to its pre-emergency specifications.
49
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
2.73 RISK OF LOSS
If any Software is lost, damaged or made invalid during shipment or prior to
acceptance, @Track will promptly replace the Software and Software storage media
at no additional charge to SBC.
If any Software is lost or damaged while in the possession of SBC after
acceptance, @Track will promptly replace the Software at the established charge
for the Software storage media unless such media is provided by SBC.
2.74 SOFTWARE UPDATES
@Track agrees to supply improvements, new releases, updates, extensions, and
other changes to Software ordered hereunder which (a) @Track provides to other
customers who have a license to use such Software, (b) @Track deems to be
logical improvements or extensions to the original Software supplied to SBC, or
(c) are necessary for the Software to continue their computing functions as
mutually agreed upon between @Track and SBC. SBC will have the right to accept
or reject any such revised version of the Software or to remove same and replace
it with the previous version if such new version will degrade or impair SBC's
computer system. In addition, @Track will insure that Software licensed
hereunder is kept current with new releases of the operating system(s) listed in
@Track's standard published GPS Specifications.
@Track agrees to provide SBC a reasonable amount of mail and telephone
consulting assistance in the event that difficulties occur in the use of the
Software or in SBC's interpretation of the results of Software use. Upon
notification by SBC that such consulting service is required, @Track will
proceed promptly toward the resolution of all such reported problems by using
and coordinating whatever @Track resources are required to resolve the problem.
If such problem cannot be resolved by telephone or written communication within
thirty (30) days from the time SBC first contacts @Track, then if requested by
SBC, @Track will provide an employee, capable of resolving such problem at the
applicable SBC Installation Site for no additional charge, provided that the
problem is the failure of the Software to perform to general GPS Specifications
previously provided to SBC or to GPS Specifications contained in the then
current applicable Software GPS Specifications. If the error or malfunction
causes downtime on SBC's computer system on which the Software is installed,
then @Track will proceed promptly to resolve the problem.
In the event that a problem is found to be due to (a) a modification to the
Software made by SBC or (b) use of the Software in a manner which is not in
accordance with the instructions provided by @Track to SBC relating to use of
the Software, SBC
50
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
agrees to pay @Track for all Technical Support or Services performed to resolve
or investigate the particular problem as described in section 2.82 entitled
ENGINEERING CHANGES and reimburse @Track for any related expenses incurred,
provided that such expenses are reasonable and @Track furnishes to SBC
supporting documentation therefor.
2.75 SOURCE AVAILABILITY AND SOURCE CODE ESCROW
CODE & DOCUMENTATION ESCROW
A. GENERAL TERMS. The following Code and Documentation escrow provisions shall
apply to (1) any Code and Documentation of the Software provided as part of the
GPS Materials provided to SBC pursuant to this Agreement including mobile unit
software, host communications handler software; and (2) any Code and
Documentation for software utilized by @Track's Network Service Center to
provide enhanced switching services in connection with the GPS Materials (the
"Deposited Code and Documentation"). However, these escrow provisions shall not
apply to any software which is owned by a third party (the "Licensed
Materials"). SBC shall be able to use any intellectual property for its purposes
to enable SBC to continue to provide the functionality described in the GPS
Specifications and various call flows to perform all functionality and services
including any modifications to the Software to effect the use of the Nokia 9000
cellular unit. Such escrow shall occur regardless of whether payment has been
made, or a dispute between the parties is in progress. For purposes of this
Section, the term "Code" shall include:
1. CODE. Computer programming code. If not otherwise specified, Code
shall include both Object Code, Source Code and Compiler Code/Compilation
Programs. Code shall include any Maintenance Modifications, and/or
Enhancements created by @Track from time to time.
2. OBJECT CODE. The machine-readable form of the Code.
3. SOURCE CODE. The human-readable form of the Code and related system
documentation including all comments and any procedural code such as job
control language.
4. COMPILER CODE/COMPILATION PROGRAMS. All programs needed to compile the
source code to object code language.
B. ESCROW DEPOSIT. @Track will provide the Deposited Code and Documentation to
an escrow agent to be mutually selected by @Track and SBC. Escrow shall be
governed by the Escrow Agreement attached as Appendix VII. Should the terms on
the Escrow Agreement attached as Appendix VII conflict with the terms and
conditions of this Source Availability and Source Code Escrow clause, the terms
and conditions of this clause shall govern. @Track will maintain the Deposited
Code
51
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
and Documentation current with a filing delay of no more than sixty (60) days
following development of such Deposited Code and Documentation related to any
maintenance modifications and/or enhancements.
C. PAYMENT OF ESCROW AGENT FEES. @Track shall be responsible for and pay any
and all fees due to the escrow agent in connection with said escrow Agreement.
D. AVAILABILITY OF DEPOSITED MATERIALS TO SBC. The escrow agent shall release,
upon actual receipt of written notice from SBC and/or @Track, the Deposited Code
and Documentation to SBC if any of the following conditions occurs subject to
the resolution of any objections to the delivery thereof served by @Track as
specified below herein: (1) an assignment by @Track for the benefit of
creditors; (2) the filing of a petition in bankruptcy by @Track; (3) the filing
of creditors of @Track of a petition in bankruptcy against @Track which is not
stayed or dismissed within ninety (90) days; (4) the appointment of a receiver
over the assets of @Track; (5) the parties reasonable disagreement with respect
to the charges to be paid by SBC to @Track under this Agreement (6) @Track's
material breach of this Agreement; and/or (7) @Track's decision to cease
conducting the business which is the subject of this Agreement. The escrow agent
shall serve @Track with fifteen (15) days prior written notice before delivering
the Deposited Code and/or Documentation to SBC so that @Track may have a
reasonable opportunity to serve upon the escrow agent its written objections to
delivery thereof to SBC. In the event that a dispute arises as to whether any of
the foregoing conditions has been met, the escrow agent shall immediately
appoint a mutually acceptable neutral third party arbitrator, with expertise in
intellectual property and contract law, who will, no later than three (3) weeks
after the initial demand of SBC for the release of the Deposited Code and
Documentation, direct the escrow agent to hold or release the applicable portion
of the Code and/or documentation according to the arbitrator's sole
interpretation of this Agreement, the Source Code Escrow Agreement, and any
exhibits thereto.
E. CONDITIONS OF DELIVERY. The Deposited Code and Documentation, if and when
delivered to SBC shall be delivered subject to the following terms and
conditions:
1. SBC will have no right to make copies of, or to license or sublicense,
the Deposited Code and Documentation, other than the rights which SBC has
been granted to license or sublicense the same in this Agreement.
2. SBC shall acquire no rights in the Deposited Code and Documentation
delivered by the Escrow Agent other than the license rights granted by this
Agreement and shall utilize the Deposited Code and Documentation solely for
the purpose of performing and/or completing a maintenance and support of
the applicable Licensed Materials.
52
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
3. SBC shall keep the Deposited Code and Documentation at a single
location at a designated SBC site and will have a right to use the software
and documentation in a way that will support SBC's use of the VTS system,
with the backup copy to be permanently stored as required below. SBC may
utilize as many copies as necessary to support SBCs business operations and
associated systems support activities.
4. SBC's right to use the Deposited Code and Documentation will be
strictly limited to maintenance and support of the applicable licensed
Materials.
5. Except when actually being utilized for its permitted purposes, the
Deposited Code and Documentation will be kept in a highly restricted
limited access area with access thereto limited to designated personnel who
have a need to use the Deposited Code and Documentation for the purposes
permitted hereunder. The Deposited Code and Documentation will be otherwise
similarly protected by SBC in a manner consistent with the manner in which
it protects its own highly confidential Intellectual Property (but no less
than reasonable manner), for the duration of time necessary to complete
such permitted purpose.
6. All designated personnel with access to the Deposited Code and
Documentation will (i) be advised in writing of the trade secret and
confidential nature of the Deposited Code and Documentation and @Track's
proprietary interest therein; and (2) previously have agreed to comply with
written confidentiality restrictions substantially similar to the
confidentiality restrictions set forth in this Agreement.
7. 2SBC shall immediately return the Deposited Code and Documentation,
and copies thereof within its possession or control, to @Track or the
escrow agent when SBC no longer requires the Deposited Code and
Documentation for support or maintenance purposes.
2.76 SOURCE CODE
If the applicable Order requires @Track to provide SBC and all its current and
future affiliates with source code to the licensed Software, @Track shall, prior
to the Performance Date and at no additional charge to SBC, provide SBC with a
complete copy of the source code for the Software and any other information
necessary to enable SBC and all its current and future affiliates to maintain
the Software. During the license term @Track shall promptly provide SBC with
copies of any changes in or additions to such source code or other information.
Unless @Track has already provided SBC with a copy of current version of the
source code for the Software @Track shall, within ten (10) days after @Track's
receipt of
53
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
SBC's written request therefor and at no additional charge, provide SBC and all
its current and future affiliates with a complete copy of the current version of
the source code for the Software hereunder and any other information necessary
to enable SBC and all its current and future affiliates to maintain the
Software. SBC shall thereafter have a perpetual royalty-free right to use the
source code for the limited purpose of maintaining the Software and for the
purposes specified by modifications hereto.
2.77 STANDARD OF PERFORMANCE
If the Software, when operated by SBC's personnel during the Acceptance Test for
the specified Acceptance Period, operates in conformance with the mutually
agreed upon GPS Specifications, it will be deemed to have met the GPS
Specifications.
2.78 TITLE
Title to Software will remain in @Track. SBC will have the right to make a
reasonable number of copies of the Software for use as authorized in an Order.
2.79 USE OF THE SOFTWARE
@Track agrees that Software licensed hereunder may be used by any present or
future subsidiary, affiliate or parent corporation of SBC, whether the use be
carried out on site or by remote electronic access, and that all materials
developed by SBC will remain the property of SBC.
SBC will not use, print, copy, modify, translate, alter or display the Software,
in whole or in part, except as expressly provided for in this Agreement.
Further, SBC will not reverse compile, decompile or reverse engineer any
Software and any attempt to do so will be a breach of this Agreement.
2.80 USE OF PLATFORMS
@Track agrees and promises to use the applicable platforms on which Software
Products are installed only for the purposes of installing, maintaining, or
otherwise supporting the Software Products. Any other use of such platforms
shall constitute a breach of this Agreement.
2.81 [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.
THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
54
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
SECTION C - GPS MATERIAL MAINTENANCE SERVICES
2.82 GENERAL
@Track agrees to provide maintenance service on GPS Material acquired hereunder
by SBC upon the terms and conditions set forth in this Agreement and in Orders
placed by SBC pursuant to this Section and accepted by @Track. Such Orders will
be deemed accepted by @Track provided the Orders are in conformance with this
Section. Prices for parts and @Track's rates are included in Appendix II.
2.83 ACCESS
SBC will provide @Track with reasonable access to the GPS Material to perform
maintenance service.
2.84 BASIC SERVICE
@Track agrees to perform the following basic maintenance service: accomplish
regularly scheduled Preventive Maintenance, if applicable; update the GPS
Material to provide the latest reliability improvements; respond to requests for
and accomplish Remedial Maintenance during the Principal Period; supervise the
preparation of the GPS Material for movement and set-up after movement; and
provide all tools and test equipment necessary for the maintenance of the GPS
Material. There will be no maintenance charges for the following basic
maintenance services if performed during the applicable warranty period and if
the malfunction or inoperative condition is covered under the applicable
warranty:
1. Preventive Maintenance, unless performed outside the Principal Period,
which will include, for purposes of this paragraph, the mutually
agreed to scheduled time for Preventive Maintenance.
2. Remedial Maintenance, which was begun during the Principal Period or
an extension thereof or when @Track was notified during the Principal
Period or extension thereof of the need for Remedial Maintenance.
3. Remedial Maintenance required within a thirty (30) day period due to a
recurrence of the same malfunction.
4. Time spent by maintenance personnel after arrival at SBC's Site
awaiting the arrival of additional maintenance personnel and/or
delivery of parts, etc., after a service ticket has commenced.
5. Remedial Maintenance required when the scheduled Preventive
Maintenance preceding the malfunction had not been performed.
6. Parts required for Preventive or Remedial Maintenance, including
replacement parts.
55
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
7. Remedial Maintenance performed outside the Contracted Period of
Coverage, unless specifically agreed otherwise by SBC in writing.
When so agreed, SBC will pay for Remedial Maintenance Services requested to be
performed outside of the Contracted Period of Coverage at rates as identified in
Appendix II; relocation of GPS Material within a SBC location during the
Contracted Period of Coverage; unpacking, installation and Acceptance Tests, any
GPS Material certification for maintenance, and packing, removal and supervising
the removal or moving of any GPS Material.
Preventive Maintenance, if applicable, will be performed at mutually agreed upon
times which do not unreasonably interfere with SBC's use of the GPS Material.
@Track will specify in writing the frequency and duration of the Preventive
Maintenance required for the GPS Material, and SBC will specify the Preventive
Maintenance schedule which may be modified by mutual agreement.
2.85 ENGINEERING CHANGES
Engineering changes which are made to GPS Material after its manufacture will be
incorporated by @Track into the GPS Material at SBC's site. These changes will
be incorporated only after consultation with and scheduling by SBC. Time
required for any modifications or engineering changes will be subject to the
provisions hereof relating to maintenance credit for downtime. In addition,
@Track will, during such consultation, specify any related products which may be
affected by such engineering changes. All modifications will be subject to the
provisions of the Clause entitled ACCEPTANCE.
There will be no charge for the installation of engineering changes due to
Warranty covered defects on GPS Material or a recall of the GPS Material for
safety related defects.
2.86 ESCALATION PROCEDURE
@Track will endeavor to initiate on-site remedial Service at SBC under current
ST scheduling guidelines. No charge will be made for any such escalation.
2.87 FORM OF ORDER
Orders for GPS Material maintenance will be written on SBC's forms and will
contain the following information:
A. The incorporation by reference of this Agreement.
B. A complete list of the GPS Material to be serviced, specifying
quantity, type, description, the monthly maintenance charge for each
item of GPS
56
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
Material, the term of the Order and the total annual/monthly
maintenance charges payable by SBC.
C. The location at which the GPS Material is installed, including floor,
street, city, state and zip code.
D. The designation of a point of contact at which @Track's maintenance
representative will receive notification of GPS Material failure.
E. The Principal Period or extension thereof, selected by SBC.
F. Any special terms and conditions agreed upon between the parties.
57
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
2.88 [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.
THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
2.89 [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.
THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
2.90 [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.
THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
2.91 [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.
THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
2.92 [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.
THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
2.93 [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.
THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
2.94 [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.
THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
2.95 [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.
THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
2.96 [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.
THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
2.97 PARTS
There will be no additional charges for replacement parts during the covered
warranty period. Only new standard parts or parts of equal quality will be used
in effecting repairs. Parts which have been replaced will become the property of
@Track and will be removed from SBC's Site. Parts, which are installed on
purchased GPS Material, will become the property of SBC.
2.98 REMEDIAL MAINTENANCE
The Principal Period or extension thereof may be changed by SBC upon thirty (30)
days' prior written notice to @Track.
58
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
Separate Principal Periods of Maintenance may be specified when there are two
(2) or more installations of @Track provided GPS Material at the same Site.
In the event that @Track finds itself unable to meet the standards set forth
above in responding to SBC's maintenance requests, @Track will, in consideration
of the size of the installed base, locate an @Track Field Engineer within a
fifty (50) mile radius of SBC and, upon the reasonable request of @Track, SBC
may provide office space for such Field Engineer at SBC's Site.
2.99 STORAGE AND WORK SPACE
SBC will provide at no charge to @Track space for spare parts and working space,
including heat, light, ventilation, electric current and outlets for use by
@Track's maintenance personnel. These facilities will be located at SBC's site
within a reasonable distance of the GPS Material to be maintained. @Track will
maintain this space in an orderly manner, consistent with SBC's site rules. SBC
will not be liable for loss or damage to @Track's equipment or materials stored
on SBC's site.
3.00 TERM OF ORDER
The maintenance term will commence on the date set forth in the applicable Order
(but in no event earlier than the expiration of the warranty period for the GPS
Material involved) and continue for the initial maintenance term specified
therein and thereafter until canceled or terminated by SBC as provided herein.
59
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
3.01 [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.
THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
SECTION D - @TRACK NETWORK SERVICES
3.02 GENERAL
This Section sets forth the terms and conditions relating to collection and
delivery of data by @Track as well as the specific Services provided for the
monthly fee listed in Appendix II, Pricing.
3.03 [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.
THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
3.04 NETWORK SERVICE TERMS
A. [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.
THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
B. [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.
THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
C. SERVICE COMMITMENT. All service terms described herein terminate on January
30, 2003. These commitments may be extended with any subsequent renewal
term.
[TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.
THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
D. RATES, CHARGES, BILLING AND PAYMENT FOR SERVICES. @Track will render to
Ameritech, Pacific Bell, Southern New England Telephone and Southwestern
Bell Telephone, L.P. a monthly bill for the Enhanced Services and Enhanced
Cellular Roaming service with each listed separately and subdivided by SBC
billing entity. SBC will receive a paper bill unless electronic media is
requested. SBC agrees to accept responsibility for all calls made by SBC or
it's authorized users. The rates for all services hereunder effective on
the date of this agreement are set forth in this agreement. Payment shall
be due net sixty (60) after receipt of invoice. All service fee payments
shall be due and payable to @Track Communications, Inc. at P.O. Box 970779,
Dallas, Texas, 75397-0779.
E. TAXES, DUTIES & SURCHARGES FOR SERVICES. All service charges are subject to
federal, foreign, state and/or local excise, sales, use, property,
retailers, occupation or other taxes, duties or surcharges. If any
governmental tax, duty or surcharge is determined to be applicable, then
SBC shall pay to @Track the full
60
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
amount of any such tax, duty or surcharge at the time payment is due for
other charges pursuant to paragraph d above herein.
F. NONPAYMENT OF SERVICE FEES. A late payment charge of one (1) percent of the
outstanding balance shall be assessed on a monthly basis on payments not
paid in accordance with the terms and conditions of this Agreement.
G. PRIVACY OF COMMUNICATION. In rendering service under this agreement, @Track
will make reasonable efforts to protect the privacy of SBC's
communications. However, absolute privacy of communications is not
guaranteed. SBC acknowledges that wireless communications, including
cellular, satellite and other transmissions, are subject to interceptions
by parties who possess certain types of radio equipment without the
knowledge or permission of the user.
H. LIMITED WARRANTY FOR SERVICES. During the duration of this agreement,
@Track warrants that the Enhanced Services provided shall operate in good
working order and that the Enhanced Cellular Roaming services provided, if
any, shall be in good working order and available to SBC's vehicles
equipped with Mobile Communications Unit(s) when within the service areas
of cellular carriers offering cellular services to @Track.
I. LIMITATION OF LIABILITY AND EXCLUSIVE REMEDY FOR SERVICES. SBC agrees that
the liability of @Track, if any, for interruptions, delays, and failures in
transmission of service ("service problems") to SBC (except for SBC's own
negligence or misconduct, for which SBC shall be solely liable), is limited
solely to the allowance of a credit as specified in the Grade of Service
section of this agreement.
J. REGULATORY STATUS. @Track and SBC acknowledge that @Track is a private
enhanced services provider, and that @Track's provision of the Enhanced
Services and its obtaining for SBC the Enhanced Cellular Roaming, are in no
way intended to impute to @Track the regulatory status of
telecommunications common carrier. To the extent the telecommunications
services addressed by this agreement are provided to SBC by third party
telecommunications companies, @Track and SBC acknowledge that only the
third party telecommunications company providing such services may be
construed, if applicable, as a telecommunications common carrier. To the
extent federal, state, or local laws or regulations change or are
interpreted otherwise, SBC agrees to execute any reasonable retroactive
modification to this agreement which does not affect the nature or cost of
the service, to the extent necessary to protect @Track against unfavorable
regulatory classifications.
K. INTELLECTUAL PROPERTY RIGHTS. Unless otherwise specified in this agreement,
@Track retains sole title to any intellectual property of @Track utilized
in conjunction with this agreement. This agreement does not constitute a
license to
61
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
use any intellectual property owned or controlled by @Track, except as set
forth in this agreement.
3.05 [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.
THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
SECTION E - ENTIRE AGREEMENT
3.06 ENTIRE AGREEMENT
The terms contained in this Agreement, and any Orders, including all Exhibits
and subordinate documents attached to or referenced in the Agreement or any
Orders, will constitute the entire agreement between @Track and SBC with regard
to the subject matter hereof and supersede all prior oral and written
communications, agreements and understandings of the parties, if any, with
respect hereto. This Agreement may not be modified expect by a written
instrument signed on behalf of both parties by the representatives who sign this
Agreement or their successors in title and authority. If either representative
is no longer employed by SBC/@Track or has been demoted, or if the approval
level no longer exists, a manager at a level equal to or exceeding the original
level must execute revisions to this Agreement.
62
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
IN WITNESS WHEREOF, @Track and SBC have caused this Amendment No. 3 to Agreement
No. 980427 to be executed, which may be in duplicate counterparts, each of which
will be deemed to be an original instrument, as of the date the last party to
this Amendment signs.
@TRACK COMMUNICATIONS, INC. SBC COMMUNICATIONS
By: /s/ JANA AHLFINGER-BELL By: /s/ PHILLIP E. COVURN
--------------------------------- ---------------------------------
Printed Name: Jana Ahlfinger-Bell Printed Name: Maureen Merkle
Title: CEO Title: Vice President, Strategic
Sourcing SBC Services, Inc.
Date: 2/8/02 Date: 2/8/2002
------------------------------- -------------------------------
ON BEHALF OF SBC AMERITECH,
SBC PACIFIC BELL,
SBC SOUTHERN NEW ENGLAND TELEPHONE,
AND SBC SOUTHWESTERN BELL
TELEPHONE, L.P.
63
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
APPENDIX I -
[TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT. THE
OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
64
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
APPENDIX II -
[TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT. THE
OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
65
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
APPENDIX III - CHANGE ORDER
- -------------------------------------------------------------------
| CONTRACT/P.O. # | |
- -------------------------------------------------------------------
- ------------------------------------------------------------------------
| | |
| LOCATION: | |
- ------------------------------------------------------------------------
- --------------------------------------------------------------------------------
| REQUEST NUMBER | ORIGINATOR | DATE ORIGINATED | DATE ACCEPTED |
- -------------------+-----------------------+-------------------+----------------
| | | | |
| | | | |
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
| DETAILED DESCRIPTION OF CHANGE REQUESTED (ATTACH ADDITIONAL INFORMATION IF |
| REQUIRED) |
- --------------------------------------------------------------------------------
| |
| |
| |
| |
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
| IDENTIFY COST, | |
| IF ANY: | |
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
| ARE CHANGES REQUIRED TO THE GPS SPECIFICATIONS - IF YES, | | |
| DESCRIBE AND ATTACH COPY OF CHANGES REQUESTED | YES | NO |
- ----------------------------------------------------------------+-------+-------
| | | |
| | | |
| | | |
- --------------------------------------------------------------------------------
- -----------------
|AUTHORIZATIONS:|
- -----------------
- --------------------------------------------------------------------------------
| | | | |
| SBC: | | @TRACK: | |
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
| | | | |
| NAME: | | NAME: | |
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
| | | | |
| DATE: | | DATE: | |
- --------------------------------------------------------------------------------
UPON ACCEPTANCE RETURN ONE COPY TO:
SR. CONTRACT MANAGER, 1010 PINE, 1-E-102, ST. LOUIS, MO. 63101
66
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
APPENDIX IV
EXECUTIVE ORDERS AND FEDERAL REGULATIONS
Work under this Agreement may be subject to the provisions of certain Executive
Orders, federal laws, state laws and associated regulations governing
performance of this Agreement including, but not limited to: Executive Order
11246, Executive Order 11625, Executive Order 11701 and Executive Order 12138,
Section 503 of the Rehabilitation Act of 1973, as amended, and the Vietnam Era
Veteran's Readjustment Assistance Act of 1974. To the extent that such Executive
Orders, federal laws, state laws and associated regulations apply to the Work
under this Agreement, and only to that extent, Supplier (also referred to as
"Contractor") agrees to comply with the provisions of all such Executive Orders,
federal laws, state laws and associated regulations, as now in force or as may
be amended in the future, including, but not limited to, the following:
1. EQUAL EMPLOYMENT OPPORTUNITY DUTIES AND PROVISIONS OF GOVERNMENT
CONTRACTORS
In accordance with 41 C.F.R. Section 60-1.4(a), the parties incorporate
herein by this reference the regulations and contract clauses required by
that section, including, but not limited to, Supplier's agreement that it
will not discriminate against any employee or applicant for employment
because of race, color, religion, sex or national origin. Supplier will
take affirmative action to ensure that applicants are employed, and that
employees are treated during employment, without regard to their race,
color, religion, sex or national origin.
2. AGREEMENT OF NON SEGREGATED FACILITIES
In accordance with 41 C.F.R. Section 60-1.8, Supplier agrees that it does
not and will not maintain or provide for its employees any facilities
segregated on the basis of race, color, religion, sex or national origin at
any of its establishments, and that it does not, and will not, permit its
employees to perform their services at any location, under its control,
where such segregated facilities are maintained. The term "facilities" as
used herein means waiting rooms, work areas, restaurants and other eating
areas, time clocks, rest rooms, washrooms, locker rooms and other storage
or dressing areas, parking lots, drinking fountains, recreation or
entertainment areas, transportation, and housing facilities provided for
employees; provided that separate or single-user restrooms and necessary
dressing or sleeping areas shall be provided to assure privacy between the
sexes.
3. AGREEMENT OF AFFIRMATIVE ACTION PROGRAM
67
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
Supplier agrees that it has developed and is maintaining an Affirmative
Action Plan as required by 41 C.F.R. Section 60-1.4(b).
4. AGREEMENT OF FILING
Supplier agrees that it will file, per current instructions, complete and
accurate reports on Standard Form 100 (EE0-1), or such other forms as may
be required under 41 C.F.R. Section 60-1.7(a).
5. AFFIRMATIVE ACTION FOR HANDICAPPED PERSONS AND DISABLED VETERANS, VETERANS
OF THE VIETNAM ERA.
In accordance with 41 C.F.R. Section 60-250.20, and 41 C.F.R. Section
60-741.20, the parties incorporate herein by this reference the regulations
and contract clauses required by those provisions to be made a part of
government contracts and subcontracts.
6. UTILIZATION OF SMALL, SMALL DISADVANTAGED AND WOMEN-OWNED SMALL BUSINESS
CONCERNS
As prescribed in 48 C.F.R., Ch. 1, 19.708(a):
(a) It is the policy of the United states that small business concerns, small
business concerns owned and controlled by socially and economically
disadvantaged individuals and small business concerns owned and controlled by
women shall have the maximum practicable opportunity to participate in
performing contracts let by any Federal agency, including contracts and
subcontracts for systems, assemblies, components and related services for major
systems. It is further the policy of the United States that its prime
contractors establish procedures to ensure the timely payment amounts due
pursuant to the terms of the subcontracts with small business concerns, small
business concerns owned and controlled by socially and economically
disadvantaged individuals and small business concerns owned and controlled by
women.
(b) Supplier hereby agrees to carry out this policy in the awarding of
subcontracts to the fullest extent consistent with efficient contract
performance. Supplier further agrees to cooperate in any studies or surveys as
may be conducted by the United States Small Business Administration or the
awarding agency of the United States as may be necessary to determine the extent
of Supplier's compliance with this clause.
(c) As used in this Agreement, the term "small business concern" shall mean a
small business as defined pursuant to Section 3 of the Small Business Act and
relevant regulations promulgated pursuant thereto. The term "small business
concern owned and controlled by socially and economically disadvantaged
individuals" shall mean a small business concern (i) which is at least fifty-one
percent (51%) unconditionally owned by one or more socially and economically
disadvantaged individuals, or, in the case of any publicly owned business, at
least fifty-one percent (51%) of the stock of which is unconditionally owned by
one or more socially and economically
68
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
disadvantaged individuals; and (ii) whose management and daily business
operations are controlled by one or more such individuals. This term shall also
mean a small business concern that is at least fifty-one percent (51%)
unconditionally owned by an economically disadvantaged Indian tribe or Native
Hawaiian Organization, or a publicly owned business having at least fifty-one
percent (51%) of its stock unconditionally owned by one of these entities which
has its management and daily business controlled by members of an economically
disadvantaged Indian tribe or Native Hawaiian Organization, and which meets the
requirements of 13 CRF part 124. Supplier shall presume that "socially and
economically disadvantaged individual" includes Black Americans, Hispanic
Americans, Native Americans, Asian-Pacific Americans, Subcontinent Asian
Americans and other minorities, or any other individual found to be
disadvantaged by the Administration pursuant to Section 8(a) of the Small
Business Act. Supplier shall presume that socially and economically
disadvantaged entities also include Indian Tribes and Native Hawaiian
Organizations.
(d) The term "small business concern owned and controlled by women" shall mean
a small business concern (i) which is at least fifty-one percent (51%) owned by
one or more women, or, in the case of any publicly owned business, at least
fifty-one percent (51%) of the stock of which is owned by one or more women, and
(ii) whose management and daily business operations are controlled by one or
more women; and
(e) Suppliers acting in good faith may rely on written representations by their
subcontractors regarding their status as a small business concern, a small
business concern owned and controlled by socially and economically disadvantaged
individuals or a small business concern owned and controlled by women.
7. SMALL, SMALL DISADVANTAGED AND WOMEN-OWNED SMALL BUSINESS SUBCONTRACTING
PLAN.
The subcontractor will adopt a plan similar to the plan required by 48 CFR
Ch. 1 at 52.219-9.
69
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
APPENDIX V-
[TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT. THE
OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
70
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
APPENDIX VI
PREFERRED ESCROW AGREEMENT
SOFTWARE SOURCE CODE ESCROW AGREEMENT
Account Number ______________________
AGREEMENT EFFECTIVE DATE:
PARTIES.
This Software Source Code Escrow Agreement, ("Escrow Agreement") effective
as of the date above, is between DSI Technology Escrow Services, Inc., a
company doing business as DSI ("Escrow Agent") located at 9265 Sky Park
Court, #202, San Diego, CA 92123, @Track Communications, Inc. located at
1155 Kas Drive, Suite 100, Richardson, Texas 75081 (Supplier), and SBC
Services, Inc., located at 1010 Pine, Room 1E102, St. Louis, MO 63101
("Beneficiary").
71
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
RECITALS.
Supplier licenses software to Beneficiary in object code form (the
"Software") pursuant to Master Agreement No. 980427-03 ("Master
Agreement"). "Deposit Materials" means the Software in source code
form ("Source Code"), including all relevant documentation and
instructions to maintain, duplicate and compile the Source Code. The
Software and Deposit Materials are the proprietary and confidential
information of Supplier, and Supplier desires to protect such
ownership and confidentiality. A description of the Software subject
to this Escrow Agreement as of the date hereof is attached hereto as
Exhibit "B."
The purpose of this Escrow Agreement is to establish an escrow in
accordance with the provisions of the Master Agreement and this Escrow
Agreement to protect Supplier's ownership and confidentiality of the
Software and Deposit Materials and to protect Beneficiary's legitimate
use of the Software by assuring the availability of the Deposit
Materials in the event certain conditions set forth in Paragraph 3.3
of this Escrow Agreement occur.
The parties desire that this Escrow Agreement be an agreement supplementary
to the Master Agreement pursuant to the United States Bankruptcy Code
Section 365 (n).
In consideration of the mutual covenants and conditions contained in this
Escrow Agreement, the parties agree as follows.
DEPOSIT MATERIALS ESCROW PROCEDURES.
Delivery of Deposit Materials and Updates to Escrow Agent. Supplier shall
deliver to Escrow Agent the Deposit Materials. Supplier shall also deliver
to Escrow Agent all Deposit Materials revisions, and/or new versions
("Update(s)") as soon as practicable after the change is effected by or on
behalf of Supplier
72
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
and not later than thirty (30) days of the release of the Software for
such revisions and/or new versions to the Beneficiary. Updates shall be
added to and become part of the Deposit Materials. With each delivery of
the Deposit Materials and Updates, Supplier agrees to provide the
information specified in Exhibit B, "Description of the Software," a copy
of which is attached hereto and incorporated herein by reference. Title
and ownership of the media upon which the Deposit Materials is stored,
exclusive of the Deposit Materials itself, shall vest with Escrow Agent
upon delivery of the Deposit Materials. THE DEPOSIT MATERIALS SHALL BE
PROVIDED ON MAGNETIC TAPE COMPATIBLE WITH WORKSTATIONS AND THE SYSTEMS ON
WHICH THE SOFTWARE WILL OPERATE AND SHALL BE ACCOMPANIED BY FULL
DOCUMENTATION THEREFORE.
3.1.1 Deposit Inspection. When Escrow Agent receives the Deposit Materials and
Exhibit B, Escrow Agent will conduct a deposit inspection by visually
matching the labeling of the tangible media containing the Deposit
Materials to the item descriptions and quantity listed on Exhibit B. In
addition to the deposit inspection, Beneficiary may elect to cause a
verification of the Deposit Materials in accordance with Section 7.
3.1.2 Acceptance of Deposit. At completion of the deposit inspection, if Escrow
Agent determines that the labeling of the tangible media matches the item
descriptions and quantity on Exhibit B, Escrow Agent will date and sign
Exhibit B and mail a copy thereof to Supplier and Beneficiary. If Escrow
Agent determines that the labeling does not match the item descriptions or
quantity on Exhibit B, Escrow Agent will (a) note the discrepancies in
writing on Exhibit B; (b) date and sign Exhibit B with the exceptions
noted; and (c) mail a copy of Exhibit B to Supplier and Beneficiary.
Escrow Agent's acceptance of the deposit occurs upon the signing of
Exhibit B by Escrow Agent. Delivery of the signed Exhibit B to Beneficiary
is Beneficiary's notice that the Deposit Materials have been received and
accepted by Escrow Agent.
3.2. Record Keeping, Storage, Copies and Inspection of Deposit Materials.
Escrow Agent shall have no obligation to determine the completeness,
accuracy or physical condition of the Deposit Materials. Supplier and
Beneficiary shall be entitled to inspect the records that Escrow Agent
maintains and the Deposit Materials pursuant to this Escrow Agreement
during normal business hours and following reasonable prior notice.
3.3. Availability of Deposit Materials to Beneficiary. The Escrow Agent shall
release, upon actual receipt of written notice from Beneficiary and/or
Supplier, the Deposit Materials to Beneficiary if any of the following
conditions occurs subject to the resolution of any objections to the
delivery thereof served by Supplier as specified below herein: (1) an
assignment by Supplier for the
73
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
benefit of creditors; (2) the filing of a petition in bankruptcy by
Supplier; (3) the filing of creditors of Supplier of a petition in
bankruptcy against Supplier which is not stayed or dismissed within ninety
(90) days; (4) the appointment of a receiver over the assets of Supplier;
(5) the parties reasonable disagreement with respect to the charges to be
paid by Beneficiary to Supplier under this Agreement (6) Supplier's
material breach of this Agreement; and/or (7) Supplier's decision to cease
conducting the business which is the subject of this Agreement. The Escrow
Agent shall serve Supplier with a copy of the written notice from
Beneficiary. From the date DSI mails the written notice to Supplier,
Supplier will have fifteen (15) days to serve upon the escrow agent its
written objections to delivery thereof to Beneficiary. In the event that a
dispute arises as to whether any of the foregoing conditions has been met,
the Escrow Agent shall immediately notify both Supplier and Beneficiary
that there is a dispute to be resolved. Both Supplier and Beneficiary shall
appoint a mutually acceptable neutral third party arbitrator, with
expertise in intellectual property and contract law, who will, no later
than three (3) weeks after the initial demand of Beneficiary for the
release of the Deposited Materials, direct the escrow agent to hold or
release the Deposit Materials according to the arbitrator's sole
interpretation of this Master Agreement, this Agreement, and any exhibits
thereto.
3.4. Conditions of Delivery. The Deposit Materials, if and when delivered to
Beneficiary shall be delivered subject to the following terms and
conditions:
3.4.1. Beneficiary will have no right to make copies of, or to license or
sublicense, the Deposit Materials, other than the rights which
Beneficiary has been granted to license or sublicense the same in
the Master Agreement.
3.4.2. Beneficiary shall acquire no rights in the Deposit Materials
delivered by the Escrow Agent other than the license rights granted
by the Master Agreement and shall utilize the Deposit Materials
solely for the purpose of performing and/or completing a maintenance
and support of the applicable Licensed Materials (as defined in the
Master Agreement).
3.4.3. Beneficiary's right to use the Deposit Materials will be strictly
limited to maintenance and support of the applicable Licensed
Materials (as defined in the Master Agreement).
3.4.4. Except when actually being utilized for its permitted purposes, the
Deposit Materials will be kept in a highly restricted limited access
area with access thereto limited to designated personnel who have a
need to use the Deposit Materials for the purposes permitted
hereunder. The Deposit
74
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
Materials will be otherwise similarly protected by Beneficiary in a
manner consistent with the manner in which it protects its own
highly confidential Intellectual Property (but no less than
reasonable manner), for the duration of time necessary to complete
such permitted purpose.
3.4.5. All designated personnel with access to the Deposit Materials will
(i) be advised in writing of the trade secret and confidential
nature of the Deposited Code and Documentation and Supplier's
proprietary interest therein; and (2) previously have agreed to
comply with written confidentiality restrictions substantially
similar to the confidentiality restrictions set forth in the Master
Agreement.
3.4.6. Beneficiary shall immediately return the Deposit Materials, and
copies thereof within its possession or control, to Supplier when
Beneficiary no longer requires the Deposit Materials for support or
maintenance purposes.
75
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
4. TERM AND TERMINATION.
4.1. Term of Escrow Agreement. This Escrow Agreement shall have an initial term
of three (3) years from the date hereof unless earlier terminated as
provided herein. The term shall be automatically renewed on a yearly basis
thereafter, unless Supplier, Beneficiary, or Escrow Agent notifies the
other parties in writing at least thirty (30) days prior to the end of the
then current term of its intention to terminate this Escrow Agreement.
4.2. Termination of Escrow Agreement. This Escrow Agreement shall terminate upon
the occurrence of any of the following.
4.2.1. Upon notice after the initial term pursuant to Paragraph 4.1 or
after an increase of fees and costs pursuant to Section 5;
4.2.2. Upon release of the Deposit Materials pursuant to Paragraph 3.5;
4.2.3. Upon termination of the Master Agreement by mutual consent of
Supplier and Beneficiary;
4.2.4. In the event of the nonpayment of fees owed to Escrow Agent, Escrow
Agent shall provide written notice of delinquency to the parties to
this Escrow Agreement affected by such delinquency. Any such party
shall have the right to make the payment to Escrow Agent to cure the
default. If the past due payment is not received in full by Escrow
Agent within one (1) month of the date of such notice, then at any
time thereafter Escrow Agent shall have the right to terminate this
Escrow Agreement to the extent it relates to the delinquent party by
sending written notice of termination to such affected parties.
4.3. Survival of Terms. In the event of termination of this Escrow Agreement,
the rights and obligations of the parties shall terminate, other than the
obligation of Supplier and/or Beneficiary to pay Escrow Agent all fees and
costs then due, and the obligations of Supplier and Beneficiary pursuant to
Paragraph 3.6 (Beneficiary Use of Deposit Materials), Section 11
(Limitation of Liability of Escrow Agent), Section 12 (Indemnification of
Escrow Agent), and the Paragraph titled, "Attorneys' Fees," in the Section
titled, "Miscellaneous Provisions."
76
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
5. REPRESENTATIONS AND WARRANTIES OF DEPOSITOR. Supplier represents and
warrants the following:
6.1. The Deposit Materials as delivered to Escrow Agent is a copy of Supplier's
proprietary information corresponding to that described in Exhibit "A" and
is capable of being used to generate the latest version of the Software.
Supplier shall deliver further copies as and when necessary. The Deposit
Materials shall contain all information in human-readable form and on
suitable media to enable a reasonably skilled programmer or analyst to
understand, maintain and correct the Software without the assistance of any
other person.
6.2. Supplier owns the Deposit Materials and the Intellectual Property Rights
therein free and clear of any liens, security interests, or other
encumbrances and has the right and authority to grant Escrow Agent and
Beneficiary the rights granted by Supplier to Escrow Agent and Beneficiary
in this Escrow Agreement
7. TECHNICAL VERIFICATION.
Verification. Beneficiary shall have the right, at Beneficiary's expense,
to cause a verification of any Deposit Materials. Beneficiary shall notify
Supplier and Escrow Agent of Beneficiary's request for verification.
Supplier shall have the right to be present at the verification. A
verification determines, in different levels of detail, the accuracy,
completeness, sufficiency and quality of the Deposit Materials. If a
verification is elected after the Deposit Materials have been delivered to
Escrow Agent, then only Escrow Agent, or at Escrow Agent's election an
independent person or company selected and supervised by Escrow Agent, may
perform the verification.
8. LICENSE.
The Supplier hereby grants a license to Escrow Agent to make as many copies
of the Deposit Materials as may be necessary to comply with its obligations
under this Escrow Agreement.
9. INTELLECTUAL PROPERTY RIGHTS.
The release of the Deposit Materials to the Beneficiary will not act as an
assignment of any Intellectual Property Rights that the Supplier possesses
in the Deposit Materials.
10. RESTRICTION ON ACCESS TO SOURCE MATERIAL; COPIES.
Except as otherwise required to carry out its duties hereunder, Escrow
Agent shall not permit any Escrow Agent employee, Beneficiary or any other
person access to the Deposit Materials except as otherwise provided herein,
unless consented to in writing by Supplier.
77
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
11. LIMITATION OF LIABILITY OF ESCROW AGENT.
Escrow Agent may act in reliance on any written notice, electronic mail or
written instruction or request furnished to Escrow Agent hereunder signed
or presented by a person apparently authorized to act on behalf of Supplier
or Beneficiary, and all employees of Supplier and Beneficiary are
conclusively deemed to have such authority, however, Escrow Agent will not
accept release notices by Electronic Mail. Release notices shall be on
company letterhead and sent by mail or facsimile. No action or claim
against Escrow Agent arising under this Escrow Agreement may be instituted
more than one (1) year after the event giving rise to such action or claim.
Escrow Agent shall not be liable for any special, incidental, or
consequential damages (including lost profits) arising out of this Escrow
Agreement even if Escrow Agent has been apprised of the possibility of such
damages.
12. INDEMNIFICATION OF ESCROW AGENT.
Escrow Agent shall be responsible to perform its obligations under this
Escrow Agreement and to act in a reasonable and prudent manner with regard
to this Escrow Agreement. Provided Escrow Agent has acted in the manner
stated in the preceding sentence, the party on whose behalf, or pursuant to
whose direction Escrow Agent acts, shall indemnify, defend and hold
harmless Escrow Agent from any and all claims, actions, damages,
arbitration fees and expenses, costs, attorney's fees and other liabilities
incurred by Escrow Agent relating in any way to this Escrow Agreement,
except for any liability, costs or expenses that may be sustained or
incurred by the gross negligence or willful misconduct on the part of
Escrow Agent, its employees or agents.. Absent any such direction, Supplier
and Beneficiary shall jointly and severally indemnify and hold harmless
Escrow Agent from any and all claims, actions, damages, arbitration fees
and expenses, costs, attorney's fees and other liabilities incurred by
Escrow Agent relating in any way to this Escrow Agreement, except for any
liability, costs or expenses that may be sustained or incurred by the gross
negligence or willful misconduct on the part of Escrow Agent, its employees
or agents.
78
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
13. NOTICES.
Except as otherwise provided herein all notices, requests, demands, or
other communications under this Escrow Agreement shall be in writing.
Notice shall be sufficiently given for all purposes as follows:
13.1. Personal Delivery. When personally delivered to the recipient. Notice is
effective on delivery.
13.2. First-Class Mail. When mailed first-class to the last address of the
recipient known to the party giving notice. Notice is effective three (3)
mail days after deposit in a United States Postal Service office or
mailbox.
13.3. Certified Mail. When mailed certified mail, return receipt requested.
Notice is effective on receipt, if delivery is confirmed by a return
receipt.
13.4. Overnight Delivery. When delivered by private overnight delivery service
such as Federal Express, Airborne, United Parcel Service, or DHL Worldwide
Express, charges pre-paid or charged to the sender's account. Notice is
effective on delivery, if delivery is confirmed by the delivery service.
Facsimile Transmission. When sent by facsimile to the last facsimile
number of the recipient known to the party giving notice. Notice is
effective on receipt, provided that (a) a duplicate copy of the notice is
promptly given by first-class or certified mail, or (b) the receiving
party delivers a written confirmation of receipt. Any notice given by
facsimile shall be deemed received on the next business day if it is
received after 5:00 p.m. (recipient's time) or on a non-business day.
[TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE
SEC.]
79
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
13.5. Any correctly addressed notice that is refused, unclaimed, or
undeliverable because of an act or omission of the party to be notified
shall be deemed effective as of the first date that said notice was
refused, unclaimed, or deemed undeliverable by the postal authorities,
messenger, or overnight delivery service.
13.6. Any party may change its address or facsimile number by giving the other
party notice of the change in any manner permitted by this Escrow
Agreement.
14. DISPUTES AND DISPUTE RESOLUTION.
Except as provided for in Section 3.3 above, any dispute arising out of or
relating to this Agreement or the breach, termination, or validity thereof, not
settled within thirty (30) days of written notice of such dispute, shall be
settled by arbitration in accordance with the then current Center for Public
Resources Rules for Non-Administered Arbitration of Business Disputes by three
independent and impartial arbitrators, of whom each party shall appoint one and
the two appointed arbitrators shall pick a third arbitrator. The arbitration
shall be governed by the United States Arbitration Act, 9 U.S.C. Sections 1-16
and judgment upon the award rendered by The arbitrators may be entered by any
court having jurisdiction thereof. The place of arbitration shall be San Ramon,
California, St. Louis, Missouri, or Dallas, Texas, or their environs at the
discretion of the party requesting arbitration. The arbitrators are not
empowered to award damages in excess of compensatory damages and each party
hereby irrevocably waives any right to recover such damages with respect to any
dispute resolved by arbitration. Final and binding arbitration in accordance
with the procedures specified in this Section shall be the sole and exclusive
procedure for the resolution of any such disputes.
80
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
13. MISCELLANEOUS PROVISIONS.
14.1 Entire Agreement; Acknowledgement. This Escrow Agreement and all
agreements, exhibits, and schedules referred to in this Escrow
Agreement constitute the final statement of the terms of the Escrow
Agreement between the parties and supersede all prior and
contemporaneous understandings or agreements of the parties.
14.2 Modification of Agreement. No supplement, amendment, or modification
of this Escrow Agreement shall be binding unless it is in writing
and signed by all parties.
14.3 Ambiguities. Each party and its counsel have participated fully in
the review and revision of this Escrow Agreement. Any rule of
construction to the effect that ambiguities are to be resolved
against the drafting party shall not apply in interpreting this
Escrow Agreement.
14.4 Waiver. No waiver of a breach, failure of a condition, or any right
or remedy contained in or granted by the provisions of this Escrow
Agreement shall be effective unless it is in writing and signed by
the waiving party.
14.5 Headings. The headings in this Escrow Agreement are included for
convenience only and shall neither effect the construction or
interpretation of any provision in this Escrow Agreement nor affect
any of the rights or obligations of the parties to this Escrow
Agreement.
14.6 California Law. This Escrow Agreement shall be governed by and
construed in accordance with the laws of the State of California.
14.7 Severability. If a court of competent jurisdiction holds any
provision of this Escrow Agreement to be illegible, unenforceable,
or invalid in whole or in part for any reason, the validity and
enforceability of the remaining provisions, or portions of them,
will not be affected.
81
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
IN WITNESS WHEREOF, the parties have executed this Escrow Agreement as of the
date below the signatures.
SUPPLIER: BENEFICIARY:
@TRACK COMMUNICATIONS, INC. AMERITECH ACCEPTED
By: By:
--------------------------------- ---------------------------------
Printed Name: Jana Ahlfinger-Bell Printed Name:
-----------------------
Title: CEO Title:
------------------------------
Date: Date:
------------------------------- -------------------------------
ON BEHALF OF SBC AMERITECH,
SBC PACIFIC BELL,
SBC SOUTHERN NEW ENGLAND TELEPHONE,
AND SBC SOUTHWESTERN BELL
TELEPHONE, L.P.
ESCROW AGENT:
DSI, INC.
By:
---------------------------------
Printed Name:
------------------------
Title:
-------------------------------
Date:
-------------------------------
82
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
EXHIBIT B
DESCRIPTION OF DEPOSIT MATERIALS
Depositor Company Name _________________________________________________________
Account Number _________________________________________________________________
Product Name________________________________________________ Version ___________
(Product Name will appear as the Exhibit B Name on Account History report)
DEPOSIT MATERIAL DESCRIPTION:
Quantity Media Type & Size Label Description of Each Separate Item
_________ Disk 3.5" or ____
_________ DAT tape ____mm
_________ CD-ROM
_________ Data cartridge tape ____
_________ TK 70 or ____ tape
_________ Magnetic tape ____
_________ Documentation
_________ Other ______________________
PRODUCT DESCRIPTION:
Environment ____________________________________________________________________
DEPOSIT MATERIAL INFORMATION:
Is the media encrypted? Yes/No If yes, please include any passwords and the
decryption tools.
Encryption tool name________________________________________ Version ___________
Hardware required_______________________________________________________________
Software required_______________________________________________________________
Other required information______________________________________________________
I certify for DEPOSITOR that the above described DSI has inspected and accepted
the above Deposit Materials have been transmitted to DSI: materials (any
exceptions are noted above):
Signature ______________________________ Signature ___________________________
Print Name _____________________________ Print Name __________________________
Date ___________________________________ Date Accepted _______________________
Exhibit B #__________________________
Send materials to: DSI, 9265 Sky Park Ct., Suite 202, San Diego, CA 92123
(858) 499-1600
83
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
EXHIBIT C
Fee & Services Schedule
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NEW ESCROW AGREEMENT ANNUAL FEE SETUP FEE
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Comprehensive Preferred $2,650 $1,050
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Master Preferred $1,350 $2,050
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Reseller $1,350 $2,050
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Preferred $1,350 $1,050
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Web Content Protection $1,000 $1,050
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FlexSAFE $1,250 $350
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SAFE $1,250 $350
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Technology Protection $700 No Fee
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ADDITIONAL BENEFICIARY
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Preferred $650/ea. $1,050
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Master Preferred $650/ea. No Fee
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FlexSAFE $200/ea. No Fee
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SAFE $50/ea. No Fee
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ADDITIONAL DEPOSIT ACCOUNT
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Master Preferred $700 No Fee
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SERVICE OPTIONS FEES
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Unlimited deposit or replacement, plus
one additional storage unit $300/yr.(1)
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Individual deposit updates or replacements $200/ea.
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SecurEmail: Unlimited deposits, updates or replacements
sent electronically, via secure e-mail, plus one additional
storage unit $500/yr.
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DeposiTrack updates $300/ea.(1)
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Remote vaulting $500/yr.
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Release filing fee No Fee(2)
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Custom contracts No Fee(3)
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Additional storage units $100/ea.
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Technical verification (estimates based on $225/hr.)
Verification Level I $1,000(1)
Verification Level II $1,500 - $2,000(4)
Verification Level III $4,000 - $8,000(4)
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(1) INCLUDED IN THE COMPREHENSIVE PREFERRED ANNUAL FEE.
84
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
(2) COPYING EXPENSES IN EXCESS OF $300 WILL BE CHARGEABLE.
(3) AN ANNUAL FEE OF $500 MAY BE ASSESSED FOR CONTRACT MODIFICATIONS THAT
CHANGE DSI'S STANDARD PROCESSES OR RISK, SPECIFICALLY DEPOSIT HANDLING,
RELEASE OR TERMINATION PROCEDURES AND GENERAL INDEMNITY ISSUES.
(4) VERIFICATION IS A SEQUENTIAL PROCESS. A LEVEL I MUST BE COMPLETED BEFORE
WORK ON A LEVEL II CAN BEGIN, AND A LEVEL II MUST BE COMPLETED BEFORE WORK
ON A LEVEL III CAN BEGIN. LISTED FEES REFLECT ONLY THE COST FOR EACH LEVEL.
85
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
APPENDIX VII-
[TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT. THE
OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
86
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
PRIME SUPPLIER MBE/WBE/DVBE PARTICIPATION PLAN
YEAR REPORTING:
PRIME SUPPLIER NAME:
-----------------------------------------------------
ADDRESS:
-----------------------------------------------------
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COMPANY E-MAIL:
-----------------------------------------------------
TELEPHONE NUMBER:
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DESCRIBE GOODS OR SERVICES BEING PROVIDED UNDER THIS AGREEMENT:
DESCRIBE YOUR M/WBE-DVBE OR SUPPLIER DIVERSITY PROGRAM AND THE PERSONNEL
DEDICATED TO THAT PROGRAM
THE FOLLOWING, TOGETHER WITH ANY ATTACHMENTS IS SUBMITTED AS AN
MBE/WBE/DVBE PARTICIPATION PLAN.
1. GOALS
A. WHAT ARE YOUR MBE/WBE/DVBE PARTICIPATION GOALS?
MINORITY BUSINESS ENTERPRISES (MBES) #DIV/0!
-----------
WOMAN BUSINESS ENTERPRISES (WBES) #DIV/0!
-----------
DISABLED VETERAN BUSINESS ENTERPRISES (DVBES) #DIV/0!
-----------
B. WHAT IS THE ESTIMATED ANNUAL VALUE OF THIS CONTRACT WITH:
AMERITECH
------------------------------------------
NEVADA BELL
------------------------------------------
PACIFIC BELL
------------------------------------------
SOUTHERN NEW ENGLAND TELEPHONE
------------------------------------------
SOUTHWESTERN BELL
------------------------------------------
AMERITECH DATA SERVICES (ADS)
------------------------------------------
SBC ADVANCED SOLUTIONS (ASI)
------------------------------------------
SBC LONG DISTANCE
------------------------------------------
87
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
SBC TELECOM (NATIONAL/LOCAL)
------------------------------------------
OTHER SBC AFFILIATE
------------------------------------------
NOTE: INDICATE DOLLAR AWARD(S) AS IT APPLIES TO THIS CONTRACT (I.E.,
PACIFIC BELL, SWBT, AND/OR AFFILIATE).
C. WHAT ARE THE DOLLAR AMOUNTS OF YOUR PROJECTED MBE/WBE/DVBE PURCHASES:
MINORITY BUSINESS ENTERPRISES (MBEs)
---------------------
WOMAN BUSINESS ENTERPRISES (WBEs)
---------------------
DISABLED VETERAN BUSINESS ENTERPRISES (DVBEs)
---------------------
*SEE MBE/WBE/DVBE CANCELLATION CLAUSE IN AGREEMENT FOR DEFINITIONS OF MBE,
WBE, AND DVBE*
2. LIST THE PRINCIPAL GOODS AND SERVICES TO BE SUBCONTRACTED TO MBE/WBE/DVBEs
OR DELIVERED THROUGH MBE/WBE/DVBE VALUE ADDED RESELLERS
DETAILED PLAN FOR USE OF M/WBES-DVBEs AS SUBCONTRACTORS,
DISTRIBUTORS, VALUE ADDED RESELLERS
For every product and service you intend to use, provide the following
information. (attach additional sheets if necessary)
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CLASSIFICATION PRODUCTS/SERVICES
COMPANY NAME (MBE/WBE/DVBE) TO BE PROVIDED $ VALUE DATE TO BEGIN
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
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- --------------------------------------------------------------------------------
88
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
3. SELLER AGREES THAT IT WILL MAINTAIN ALL NECESSARY DOCUMENTS AND RECORDS TO
SUPPORT ITS EFFORTS TO ACHIEVE ITS MBE/WBE/DVBE PARTICIPATION GOAL(S).
SELLER ALSO ACKNOWLEDGES THE FACT THAT IT IS RESPONSIBLE FOR IDENTIFYING,
SOLICITING AND QUALIFYING MBE/WBE/DVBE SUBCONTRACTORS, DISTRIBUTORS AND
VALUE ADDED RESELLERS.
4. THE FOLLOWING INDIVIDUAL, ACTING IN THE CAPACITY OF MBE/WBE/DVBE
COORDINATOR FOR SELLER, WILL:
ADMINISTER THE MBE/WBE/DVBE PARTICIPATION PLAN,
SUBMIT SUMMARY REPORTS, AND
COOPERATE IN ANY STUDIES OR SURVEYS AS MAY BE REQUIRED IN ORDER TO
DETERMINE THE EXTENT OF COMPLIANCE BY THE SELLER WITH THE PARTICIPATION
PLAN.
NAME:
----------------------------------------------------
TITLE:
----------------------------------------------------
TELEPHONE NUMBER:
----------------------------------------------------
AUTHORIZED SIGNATURE:
----------------------------------------------------
DATE:
----------------------------------------------------
89
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
M/WBE-DVBE QUARTERLY RESULTS REPORT
FOR THE FOLLOWING SBC AFFILIATE:
NOTE: Subcontracting Results should reflect ONLY M/WBE-DVBE dollars directly traceable to sales DURING THE REPORT QUARTER.
Results must be reported individually for each SBC subsidiary.
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THIS SUMMARY REPORT SHOULD BE E-MAILED TO: SBCSD@MSG.PACBELL.COM
Authorized signed copy should be mailed to: PRIME SUPPLIER PROGRAM MANAGER
2600 CAMINO RAMON, ROOM 1E050
SAN RAMON, CA 94583 FAX # (925)867-4414
NOTE: Questions and/or requests for assistance may be referred to the Prime Supplier Program Manager at SBCSD@msg.pacbell.com
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- ------------------------------------------------------------------------------------------------------------------------------------
1. REPORTING COMPANY: 2. CONTRACT/ 3. REPORT QUARTER:
WORK ORDER NUMBER This report reflects the utilization of
Minority Business Enterprise/
Company Name: Woman Business Enterprise/Disabled
------------------------------------ Veterans Enterprise
90
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
Address: participation for period
--------------------------------
City, State, Zip: through
--------------------------------
Contact Name: (If available)
--------------------------------
Title: (Please indicate dates)
--------------------------------
E-mail:
--------------------------------
Date:
--------------------------------
Telephone:
--------------------------------
SIGNATURE:
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PARTICIPATION GOAL PARTICIPATION ACHIEVEMENT
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4. 5. ACTUAL FOR QUARTER
------------------
ANNUAL GOAL MBE WBE DVBE
-----------
Percent of Total MBE WBE DVBE Subcontracting Dollars | | | |
----------------------------------------
Sales | 15.0%| 5.0%| 1.5%|
----------------------------------- Total
Sales to SBC
----------------------------------------
Percent of
Subcontracted Sales | #DIV/0! | #DIV/0! | #DIV/0! |
----------------------------------------
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SBC - SUBCONTRACTING RESULTS
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6. M/WBE-DVBE SUBCONTRACTOR(S) Ethnic/Gender: Total Dollars:
-------------- --------------
Name:
--------------------------------------------- -------------------------------------------
Address:
---------------------------------------------
City, State, Zip:
---------------------------------------------
Telephone: CERTIFYING AGENCY:
---------------------------------------------
Goods or Services:
---------------------------------------------
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To add additional subcontractors, copy the entire light gray area and paste directly below this line.
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91
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02
Agreement No. 980427-03
SBC RECOMMENDED AGENCIES
[TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT. THE
OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
92
PROPRIETARY INFORMATION
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their Affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Model Software and Professional Services Agreement
Approved 3/9/00
Revised 1/14/02