EXHIBIT 99.474
[GRAPH]
CALIFORNIA POWER EXCHANGE PX SYSTEMS PROPOSAL
COMMERCIAL PROPOSAL [PRICING]
January 14, 1997
Procurement & Materials Management Department
Southern California Edison
8631 Rush Street, G04, 2nd Floor
Rosemead, California 91770
Attention: Ernest W. Schimmelman, C.P.M., NCE
Manager-Contracts
Reference: California Power Exchange PX Systems
RFP No. Z311655
Dear Mr. Schimmelman:
The PX Alliance, consisting of Perot Systems Corporation (PSC), ABB Power T&D
Company Inc. (ABB), and Ernst & Young LLP (E&Y), is pleased to provide the
enclosed proposal for building the PX Systems in response to your RFP
No. Z311655 dated November 1996. Our response also incorporates Addendum No. 1
dated December 27, 1996.
By teaming our respective companies to create the PX Alliance, we bring to bear
a unique blend of experience and know-how as well as the proven collective
capability, talent and extensive skills necessary to provide a comprehensive
and innovative solution for delivering the on-time operation of the PX Systems
for the California Power Exchange. In addition to our industry and
technological expertise and the depth and breadth of superior quality
resources, we also offer the global experience of our combined companies in
power markets. We will work hand-in-hand with the California Power Exchange to
facilitate successful energy market operations by January 1, 1998.
PSC will be the program manager of the PX Alliance, with overall and direct
responsibility for the design, development, testing, installation, and
deployment, and potentially the eventual operation of an integrated turnkey
solution for the PX Systems. While PSC will be the primary point of contact and
direct interface to the PX, all three parties of the PX Alliance are fully
committed to the delivery and successful implementation of the PX Systems.
The PX Alliance members have a clear and comprehensive understanding of the
monumental task at hand. We have learned from experience, as evidenced by our
proven track record in implementing systems for the competitive market
infrastructure of electricity industry restructuring around the world and by our
active, ongoing involvement in activities within WEPEX and the California
market.
The proposal that follows details our approach to developing and implementing
the PX system, in response to your RFP. We have attached a listing of the
proposal contents, per your instructions to bidders. Please contact Pat Golden
at (213)367-1404 with any questions regarding our proposal. PSC, ABB and E&Y
welcome the opportunity to discuss our proposal with you in greater detail, and
we look forward to working with the Power Exchange.
Sincerely,
/s/ EDWARD M. SMITH /s/ RALPH D. MASIELLO /s/ WILLIAM F. HUNTER
- ------------------------- -------------------------- ---------------------
Edward M. Smith Ralph D. Masiello William F. Hunter
Vice President General Manager Partner
Perot Systems Corporation ABB Power T&D Company, Inc. Ernst & Young LLP
(Intentionally left blank)
TABLE OF CONTENTS
1.0 Executive Summary
2.0 Pricing Information
3.0 Payment Milestones
4.0 Maintenance Services
5.0 Creative Options
Appendix A Terms and Conditions
Appendix B Commercial Table of Conformance
This document is being provided to the California Power Exchange Systems
proposal evaluation team and is privileged and confidential information. No
part may be reproduced, transmitted or otherwise distributed outside of the
evaluation team without written permission of ABB Power T&D Company Inc. (ABB),
Ernst & Young LLP (E&Y) and Perot Systems Corporation (PSC).
(Intentionally left blank)
[GRAPHIC]
1. Executive Summary
EXECUTIVE SUMMARY
AN ALLIANCE FOR THE NEXT MILLENNIUM
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[CHART OMITTED]
Change has become today's watchword as industries and companies
position themselves for the next millennium. California is on the cusp
of significant change - the deregulation of its power industry.
Creating an energy trading market for the State of California sets the
stage for the evolution of the energy industry across the United States
and highlights the foresight of those visionaries working to create an
independent Power Exchange.
Concepts must now be married with action to develop and deliver a fully
operational Power Exchange and commence trading market operations by
January 1, 1998.
The timeline defined for achieving this goal is aggressive - nine
months from contract start to market simulation - and demands a high
degree of innovative technology to deliver this business solution
combined with a qualified team of experienced implementers to lead the
delivery. Challenges remain as the business rules, PX and ISO
structures, and legislative rulings continue to unfold.
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EXECUTIVE SUMMARY
ABB, Ernst & Young and Perot Systems, three innovative industry leaders, have
formed an alliance specifically to leverage our unique combination of proven
products and services, mobilization and training, systems integration and
project management to bring the California Power Exchange to a timely and
successful operation. Our alliance - the PX Alliance - is the only team that has
actually delivered the business solutions required by the California Power
Exchange -- and has delivered them successfully!
The PX Alliance will take the approach of rapid development through field
tested, proven off-the-shelf products. Coupled with this technological know-how
is a fully committed, multi-disciplinary team with vast experience in developing
energy markets across the globe. The PX Alliance's proposed business approach
provides a high value, quality solution that mitigates the potential risk of
delay and focuses on the on-time, successful delivery of an operational Power
Exchange. The PX Alliance offers the best solution for a fully operational Power
Exchange.
The PX Alliance will establish a stand-alone company with operations based in
California whose sole mission will be the successful delivery of California's PX
by January 1, 1998.
Our three companies already employ more than 2,500 Californians and maintain
offices in Santa Clara, San Francisco, San Jose, Sacramento, San Diego, Los
Angeles, and Irvine.
Four critical factors differentiate the PX Alliance from our competition.
THE PX SOLUTION -- field tested, proven, off-the-shelf products that we will
adapt as required to deliver a successful Power Exchange to the state of
California.
THE PX ALLIANCE APPROACH -- rapid development and prototype delivery that
provides maximum opportunity for stakeholder involvement while leveraging our
experience in similar operations worldwide.
THE PX ALLIANCE EXPERIENCE -- unparalleled worldwide experience successfully
delivering solutions of similar size and complexity, supported by an unequaled
depth and breadth of talent specifically experienced in shaping the deregulating
California electricity industry.
THE PX ALLIANCE TEAM -- a multidisciplinary team with proven experience,
exceptional insight and unsurpassed leadership in the worldwide electricity
industry, with a unique synergy built on the strengths and expertise of our
three companies.
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EXECUTIVE SUMMARY
[CHART OMITTED]
The PX Alliance solution is fully compliant with all key requirements outlined
in the Request for Proposal. Our integrated service offering is based on field
tested, proven, off-the-shelf products that have been developed and implemented
in energy trading markets throughout the world. The PX Alliance solution
integrates seven key functional areas:
BIDDING. ABB'S Pooling & Settlement System (P&SS) provides an integrated and
proven approach to bidding, scheduling & settlements, most recently implemented
in Singapore's Power Pool. ABB's PowerWeb, the web interface product, has
recently been developed for the New York Power Pool's BidBox. The bidding
function of the P&SS can be readily scaled for the required number of market
participants. Further details are in Section 4 of the Technical Proposal.
SCHEDULING & PRICE DETERMINATION. ABB's family of scheduling products provides
the basis for this module. They are currently used by more than 40 utilities,
including the Alberta, ISA (Colombia), New York Power, Singapore, and Eskom
(Republic of South Africa) Pools, and by the UK National Grid Company. Inherent
in these products is the option to address voluntary congestion management, a
feature developed for and tested by the UK National Grid Company and National
Power, the UK's largest power generator. They also incorporate the specified
options for Simultaneous or Sequential A/S Scheduling. Further details are in
Section 5 of the Technical Proposal.
PUBLISHING. Oracle's suite of WebTools and Netscape's Enterprise server along
with ABB's OASIS form the foundation of this module. Further details are in
Section 6 of the Technical Proposal.
SETTLEMENTS. ABB's Pooling & Settlement System (P&SS) is the core for this
module. The popularity of P&SS in power pools across the globe has resulted in
its application to a wide variety
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EXECUTIVE SUMMARY
of power pool and power exchange operating nodes. Extensive ad-hoc query and
user reporting facilities for both confidential and non-confidential reports are
incorporated into this product. Further details are in Section 7 of the
Technical Proposal.
BILLING & CREDIT. Ernst & Young has designed and implemented billing models in
more than ten different energy transmissions systems throughout the US and the
UK. The critical billing invoice component of the subsystem is based on E&Y's
GasSolutions(TM) product, which was developed and implemented initially to
address requirements arising from deregulation of the US gas markets. This
product has since undergone further refinements as it has been introduced at
British Gas' TransCo business unit and modeled after the UK'S national electric
grid and power pool. This product incorporates extremely flexible billing
regimens to meet all specified requirements. Further details are in Section 8 of
the Technical Proposal.
ADMINISTRATIVE SYSTEMS. Seamless integration and flexibility are hallmarks of
the PX Alliance solution's Administrative Systems which leverage Oracle's proven
industry standard suite of application packages. Both Ernst & Young, who will be
leading customization efforts in this area, and Perot Systems, the overall
project manager, have extensive experience in delivering Oracle based solutions.
Our solution is sufficiently flexible to accommodate outsourcing non-core
functions such as payroll processing should the PX choose to do so. Further
details are in Section 9 of the Technical Proposal.
SYSTEM ARCHITECTURE. An infrastructure built on world class technology designed
to prevent any single point failure threatening operations underlies our
business solution. Digital Equipment Corporation (Digital) has been chosen to
provide the requisite hardware and applications which will employ Oracle's
relational database products. Digital currently holds the world's performance
record for transaction processing utilizing Oracle's RDBMS. The PX Alliance
members have developed and implemented the world's largest transaction
processing system on an Oracle distributed client server, supporting 500 complex
transactions per second. Further details are in Section 3 of the Technical
Proposal.
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EXECUTIVE SUMMARY
THE PX ALLIANCE APPROACH
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The PX Alliance will deliver an early release of the commercial
business systems to serve as a prototype and market trial tool by
leveraging our proven off-the-shelf products and technology. Based on
input from the PX staff, market participants, and stakeholders, this
Alpha release will facilitate iterative customization and continued
development of a successfully operating Power Exchange. Our rapid
development early release approach affords the PX and its stakeholders
the opportunity to validate related business processes and protocols,
mitigating the risk and meeting the challenge inherent in the
abbreviated timeline. In Section 2 of the Technical Proposal we
describe our approach in further detail and include our specific
observations, recommendations and lessons learned in creating similar
systems for other power pools around the world.
Proven program management rapid system development methodologies,
systems integration, evaluation, testing and quality assurance
methodologies are equally fundamental to the success of the PX. Much
attention has been given to these critical foundations in Sections 2
and 10 of our Technical Proposal. Section 11 details our plans for
mobilization, roll-out and training. Following the Alpha release, the
PX Alliance will lead the training, bringing to bear their unique
knowledge and operational insights.
The PX Alliance is fundamentally committed to the successful operation
of the Power Exchange by January 1, 1998. Complementing our base
Technical Proposal, we offer three options for your consideration, each
of which would provide an even more robust operation.
As a further demonstration of our commitment to the successful
operation of the California Power Exchange, the PX Alliance also plans
to present a proposal for the ISO Scheduling Infrastructure, Scheduling
Applications, and Business Systems. Given the overlap of these
functions and the commonality of their solutions, we will offer
significant savings should we be selected for both contracts. The
unique worldwide experience of the PX Alliance and our in-depth
involvement in the California electricity market provide even more
synergy than might be expected from merely selecting the same partner
for both operations. Because of our closely integrated team approach,
we can focus on the concurrent development seamless integration and
expeditious roll-out of these parallel operations to minimize the
overall build time and further mitigate the risk.
The RFP deals solely with the initial build and implementation of the
systems and infrastructure to deliver California's Power Exchange by
January 1, 1998. Clearly, the PX will require significant operational
staff to provide these business services. Indicative of our commitment
to your success, Perot Systems offers to assume responsibility for
these continued operations. This ready and expedient solution provides
a single point of responsibility, accountable for the provision,
implementation, operation, and support of these complex business
systems. It will also reduce transition timelines and costs, mitigate
the risk of inefficiencies arising from hand-offs, and ensure readiness
for market response. What's more, this solution commits the PX Alliance
to assume even more of the risk in validating business processes and
protocols. Further details are in Section 12 of the Technical Proposal.
The PX Alliance recommends building a prototype to help define and test
the business rules concurrent with the continued and iterative
development of the fully responsive PX system. The early and frequent
involvement of the PX staff, market participants, and other
stakeholders to establish and validate the market rules, revised
protocols, and bidding and scheduling operations is critical to the
successful and timely operation of the Power Exchange. Further details
of our testing plan are outlined in Section 2 of the Technical
Proposal.
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EXECUTIVE SUMMARY
OUR PX ALLIANCE QUALIFICATIONS
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[GRAPHIC OMITTED]
With our combined capabilities and global experiences, the PX Alliance
is the only credible team that can legitimately attest to having
delivered the business solution required by the PX.
ABB POWER T&D COMPANY INC. (ABB) is a world leader in providing
applications and products to power pools and energy trading systems.
ABB has successfully implemented the replacement system for the
Generator Order And Load (GOAL) project for the UK's National Grid
Company, the PUB Singapore Power Exchange, and the New York Power Pool
open market bidding, pooling and scheduling system. The GOAL
replacement project incorporated strict project software auditability
transparent to the market participants. ABB has also been selected to
provide the core power exchange elements for the creation of the
National Energy Market system of Australia, the components of which are
nearly identical and complementary to California's Power Exchange.
ABB is recognized as a pioneer in the development of technologies to
address real time power systems requirements throughout the world.
ERNST & YOUNG LLP (E&Y) is one of the world's premier professional
services firms. With over 64,000 employees worldwide, their expertise
spans virtually every industry segment. E&Y has been involved in
electricity industry deregulation globally, providing services ranging
from
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EXECUTIVE SUMMARY
economic analysis of market mechanics in New Zealand, Australia and the
UK to business transformation of UK and US power and gas utilities.
E&Y's team has also developed billing, settlements and bidding systems
for a number of the US and UK gas companies. One of E&Y's core
competencies is auditability of software. Within the PX Alliance, E&Y
will work closely with ABB to provide stringent checks and balances for
all software implemented. The resulting transparency of the decision
making process will enhance market integrity and encourage greater
participation, which in turn will lead to a more efficient and
accessible power market. E&Y also has extensive experience in the
application of Oracle's suite of administrative and financial systems
with demonstrated skills customizing and implementing applications
similar to those we will provide the PX.
Perot Systems Corporation (PSC) will serve as the PX Alliance's overall
program manager and system integrator. PSC is one of the world's
fastest growing and most innovative venture technology companies. PSC's
Energy Group is focused on the changing dynamics of the global utility
sector.
Since 1991 Perot Systems has been actively engaged in a strategic
alliance with one of the twelve former UK Regional Electricity
Companies, a contract valued at approximately $400 million. PSC has
delivered technology-based business solutions and provided operations
support to assist this multi-billion dollar company in meeting the
challenges of a competitive market. PSC developed and implemented
retail energy billing and trading systems which are key to these
initiatives.
Perot Systems has extensive hands-on experience in California's planned
utility restructuring. Both Southern California Edison and the Los
Angeles Department of Water and Power (LADWP) selected PSC to develop
and implement comprehensive business solutions to administer wholesale
energy contracts and ancillary and transmission grid services. The
relationship with LADWP, the largest contract of its kind ever awarded
by the City of Los Angeles, focuses on the transformation of the
largest municipal electricity utility in the US to a commercially
competitive enterprise. As a result PSC brings significant business and
industry insight to the PX Alliance.
While not the largest company of its kind, Perot Systems holds the
distinction for winning the world's largest contracts with the most
ambitious time schedules. This is one of PSC's core competencies and a
stated strategic direction.
Perot Systems developed and successfully implemented the world's
largest relational database application using open systems client
server technology - in just 13 months. This EuropCar International
effort involved 55 systems across nine countries and 800 offices,
required placing PSC's associates in Oracle's R&D labs, and resulted in
the creation of Oracle's Version 7 operating system specifically for
this venture. More than 3,000 employees were trained in the operating
systems and the reengineered business processes. Training media
included reference guides, videotapes, video conferencing and online
material in nine different languages. Sixty trainers were used,
exploiting a "train the trainer" philosophy. Perot Systems was awarded
a ten-year contract to run the overall system, with incentive payments
tied to business improvements in market revenues.
In 1996 Perot Systems formed a strategic outsourcing alliance in excess
of $6 billion with Swiss Bank Corporation. PSC provides services and
technology which support a distributed environment and customer
population of more than 20,000 users. The Wall Street Journal touted
this alliance as "the outsourcing business model of the future."
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EXECUTIVE SUMMARY
PX ALLIANCE PROJECT ORGANIZATION
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[CHART OMITTED]
OUR PX ALLIANCE TEAM
A company -- and the products or services it creates -- is only as
good as the people who comprise it. The PX Alliance has assembled the
joint team by drawing the very best each company has to offer in terms
of experience, talent and leadership. The PX Alliance brings together a
multi-disciplinary team steeped in knowledge of the industry,
technology, processes and people, whose credentials are unsurpassed by
any single supplier/integrator or any other group of companies. The
California Power Exchange will be the focus of this unique combination
of experience and capabilities gathered to deliver the full PX business
solution by January 1, 1998.
Each member of the PX Alliance core team was chosen for his or her
specific expertise and unique capabilities to meet the needs of the
Power Exchange.
ED SMITH -- ACCOUNT / COMMERCIAL MANAGER
Ed is a corporate officer and Vice President, PSC; Chief Executive
Officer of Perot Systems Europe (Energy Services), Ltd., and Vice
President of PSC Energy Corporation, with responsibility for leading
PSC's energy group business operations on a global basis. He has held
senior leadership positions in domestic and international power, gas
and telecommunications markets. Ed was PSC's first U.S. operations
associate assigned to Europe and led Perot's engagement with East
Midlands Electricity, PLC, third largest of the UK's twelve regional
electricity supply and distribution companies, with whom he formed a
12-year alliance that is still considered a model for power-industry
transformation. Since That time he has led energy related business
development efforts in North America, South Africa, India and several
Asian countries. Ed brings to the PX Alliance both proven ability to
direct large-scale projects and in-depth insight into the unique
challenges of the deregulating utility industry.
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EXECUTIVE SUMMARY
LARRY SMITH -- PROGRAM MANAGER
An associate with Perot Systems, Larry has over 25 years of experience
in virtually all aspects of the software business. His expertise
includes global project management, software development business
process reengineering, financial models and product market strategy. He
brings to bear significant experience leading multi-million dollar
projects involving multiple vendors and international deployment. He
has served in numerous technical and managerial positions for a wide
range of hardware and software products, information systems, and
client solutions in worldwide industries and markets. His performance
in entrepreneurial projects demonstrates his ability to set and
communicate strategy, define goals, and deliver results.
CINDY BLACK -- PROGRAM OFFICE MANAGER
Cindy has nearly 18 years of experience in systems organization and
project management She established a Program Management Office for the
Perot Systems Infrastructure organization which is responsible for the
management of 300 separate projects relative to Data Centers, Networks
and Network Consolidation. As Project Manager for Swiss Bank
Corporation, she was responsible for deploying NT workstations to over
25,000 users worldwide. She recruited staff, established procedures,
formalized processes, and interfaced with the client. She has also been
responsible for establishing schedules for complex client software
implementation from development through software live dates. Cindy's
hands-on experience and depth of technical knowledge will help ensure
that the PX Alliance meets and even exceeds the demands of the Power
Exchange.
ALI IPAKCHI -- PROJECT MANAGER, BIDDING, SCHEDULING AND SETTLEMENTS
An associate of ABB Systems Control, Dr. Ipakchi has more than 20 years
of experience in software development project management, and applied
R&D in process control and the utility industry. As manager of the
Power Applications department at ABB SC, his department has grown at
the rate of 30% per year, includes more than 50 engineers, and
generates in excess of $15 million annually His established academic
credentials, combined with his software development project management
experience will be instrumental to the successful implementation of the
bidding, scheduling and settlement modules.
STEVE DEBRENS -- PROJECT MANAGER, BILLING AND ADMINISTRATION
Steve Behrens is a Senior Manager in Ernst & Young LLP's Utility
Consulting practice. He has over 19 years of consulting experience,
with emphasis on the application of information technology to solve
business problems. He has 14 years of experience in the electric and
gas utility industry participating in the planning, design and
development of a broad range of systems including customer management
and billing, service order management, financial reporting, budgeting,
employee management power plant maintenance, and materials management.
His attention to detail and exacting performance standards uniquely
qualify him to lead the development and successful implementation of
the billing and administration modules.
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EXECUTIVE SUMMARY
PAT GOLDEN -- PROJECT MANAGER, INTEGRATION AND ROLL-OUT
Pat Golden is a key PSC Energy business leader and technical expert. He
is currently leading an international forum to develop commercially
feasible "across the interface" (electric meter) solutions that will
enable organizations to innovate new and advanced products and
services. Pat has more than two decades of experience in control
systems technology and applications, with particular expertise in
developing the technology enablers necessary to achieve business
objectives. His industry experience encompasses electricity and
petrochemicals, and he has acknowledged skills in information
engineering, system design team management and implementation across
multi-functional platforms. His skill set and knowledge base make him
eminently qualified to effect a successful integration and roll-out of
the PX Alliance solution.
MEETING THE CHALLENGE
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We, the PX Alliance, applaud the State of California for empowering the
PX to take this proactive leap toward the new millennium by being the
first in the United States to offer its citizens the benefits of
deregulation. This monumental task requires a quality team and close
alliance between the PX and your chosen provider to overcome the
innumerable challenges to success.
We, the PX Alliance, three innovative industry leaders, are totally
committed to the success of the California Power Exchange. Our unique
combination of proven products, quality services, robust training,
thorough systems integration and expert project management will be
focused on bringing the California Power Exchange to timely and
successful operation by January 1, 1998.
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[GRAPHIC]
2. Pricing Information
(Forms 1 through 11)
PRICING INFORMATION
PRICING INFORMATION
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This section addresses the requirements of Volume I, Section 3 - Bidding
Instructions. The PX Alliance has carefully examined the contract that is
part of Volume 1 Section 5 of the PX RFP and proposes changes as indicated
in the accompanying revised general terms and conditions. If the target
date of 1 January 1998 is not met because of changes in project scope due
in whole or part to causes beyond the control of the PX Alliance, the
price may be adjusted based on an agreed index.
The essence of our proposed pricing structure is:
* Delivery by January 1, 1998
* Fixed Price
* Utilization of standard systems and subsystems.
PRICING ASSUMPTIONS
The PX Alliance has considered the following assumptions in developing our
pricing.
* All intellectual property rights in software and documentation,
including but not limited to, all copyrights and patent rights, shall
remain with the PX Alliance or its licensor(s).
* Payment of applicable taxes is detailed in Section 9.3 of the General
Terms and Conditions.
* The PX will provide the sites for both the Primary Operations and Backup
Systems, which will include utilities, furniture, cabling, and other
office accommodations. These costs have not been included in our pricing.
* The PX Alliance will utilize the Hardware intended for the Primary and/or
Backup sites as the development environment.
* Insurance is detailed in section 24 of the General Terms and Conditions.
PRICING FORMS
Pricing Forms 1 through 11 present the PX Alliance proposed pricing for
the total PX Systems and the breakdown of our proposed prices.
The "A" forms (for example Form 3A) designate items specific to the
Primary Operations Center. The "B" forms designate items specific to the
Backup System. Forms without a letter designation apply to both systems as
a single-cost item.
Form 2B provides for quotations for the equipment required at the Backup
System.
The Administrative System appears on Forms 3A and 3B.
Form 9 assists the PX in determining the cost of options that it may or
may not elect to procure.
The PX Alliance is proposing no incremental price increase for
implementing the required Simultaneous Ancillary Services Auction option.
11
FORM 1
FORM 1
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BASE PX SYSTEMS PRICE SUMMARY
<Table>
<Caption>
SIMULTANEOUS
SEQUENTIAL A/S AUCTION
A/S AUCTION (INCREMENTAL)
BASE PX SYSTEMS TOTAL PRICE $45,946,780 $ 0
Total of Items Common to Both Primary Operations Center and Backup System $23,224,191 $ 0
PX Systems Application Software (Form 3) $21,143,028 $ 0
Spare Parts (Form 5) $ 272,941 $ 0
Training (Form 6) $ 1,808,222 $ 0
PX Participant System Software, if any (Form 7)(1) $ 0 $ 0
Freight and Insurance(2) $ 0 $ 0
Taxes (Identify)(2) $ 0 $ 0
Total of Items Specific to Primary Operations Center $19,029,817 $ 0
PX Systems Hardware (Form 2A) $ 2,522,604 $ 0
PX Systems Support Software (Form 3A) $ 1,683,472 $ 0
PX Systems Implementation Services (Form 4A) $14,823,751 $ 0
Total of Items Specific to Backup System $ 3,692,762 $ 0
PX Systems Hardware (Form 2B) $ 1,265,706 $ 0
PX Systems Support Software (Form 3B) $ 678,959 $ 0
PX Systems Implementation Services (Form 4B) $ 1,748,097 $ 0
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</Table>
(1) No specific software required
(2) See 2.1 Pricing Assumptions in the commercial proposal
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Intellectual Property Ownership Option (A=PX/B=Vendor): B
Bidder The PX Alliance
Authorized Signature: /s/ EDWARD M. SMITH
Address: 633 West Fifth
Los Angeles, CA 90017
Telephone Number: (213) 367-1404 Fax Number: (213) 367-5006
Date: January 14, 1997
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12
FORM 2A
FORM 2A
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PX SYSTEMS PRIMARY OPERATIONS CENTER HARDWARE
<Caption>
SIMULTANEOUS
SEQUENTIAL A/S AUCTION
A/S AUCTION (INCREMENTAL)
PX Systems Primary Operations Center Hardware Total Price $2,522,604 $0
1) Equipment [Volume II, Section 2, Exhibit 2-1 less printers and
less operator consoles/workstations] $2,325,006 $0
2) Printers [Volume II, Section 2, Exhibit 2-2] $ 34,893 $0
3) Workstations [Volume II, Section 2, Exhibit 2-3] $ 162,705 $0
</Table>
Bidder The PX Alliance
Authorized Signature: /s/ EDWARD M. SMITH
Date: January 14, 1997
13
FORM 2B
FORM 2B
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PX SYSTEMS BACKUP SYSTEM HARDWARE
<Table>
<Caption>
SEQUENTIAL SIMULTANEOUS
A/S AUCTION A/S AUCTION
PX Systems Backup System Hardware Total Price $1,265,706 $0
1) Equipment [Volume II, Section 2, Exhibit 2-1 less printers and
less operator consoles/workstations] $1,106,236 $0
2) Printers [Volume II, Section 2, Exhibit 2-2] $ 25,000 $0
3) Workstations [Volume II, Section 2, Exhibit 2-3] $ 134,470 $0
</Table>
Bidder The PX Alliance
Authorized Signature: /s/ EDWARD M. SMITH
Date: January 14, 1997
14
F o r m 3
Form 3
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PX Systems Application Software
<Table>
<Caption>
SIMULATANEOUS
SEQUENTIAL A/S AUCTION
A/S AUCTION (INCREMENTAL)
PX Systems Application Software $21,143,028 $0
1) Bidding & Scheduling [Volume III, Sections 3 & 4 $ 6,367,207 $0
2) Settlements [volume III, Section 6] $ 2,978,042 $0
3) Billing [Volume III, Section 7] $ 9,025,500 $0
4) Administrative System [Volume III, Section 8] $ 1,016,065 $0
5) Publishing Module [Vol. III, Section 5] $ 1,756,214 $0
</Table>
Bidder The PX Alliance
Authorized Signature: /s/ EDWARD M. SMITH
Date: January 14, 1997
15
F o r m 3 A
Form 3A
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PX Systems Primary Operations Center Support Software
<Table>
<Caption>
SIMULTANEOUS
SEQUENTIAL A/S AUCTION
A/S AUCTION (INCREMENTAL)
PX Systems Software Total Price $1,683,472 $ 0
1) Administrative System License [Volume III, Section 8 $ 267,055 $ 0
2) Licenses for standard communication software protocols,
configuration utilities, and network management [Volume
III, Section 10.3] $ 811,647 $ 0
3) FTP client and server software licenses [Volume III,
Section 3.2](1) $ 0 $ 0
4) World Wide Web browser and server software licenses
[Volume III, Section 3.2 and 5] $ 10,000 $ 0
5) Licenses for database server, database maintenance,
form, and report generation software [Volume III,
Section 10.4, 10.6] $ 330,660 $ 0
6) Licenses for database client software (may include
form and report generation if not included with the
server license) [Volume III, Section 10.4] $ 33,581 $ 0
7) Operating System Licenses [Volume III, Section 10.3] $ 53,176 $ 0
8) Language compiler and program linker licenses [Volume
III, Section 10.2] $ 98,353 $ 0
9) Virus detection/correction software licenses
(including update service) [Volume III, Section 3.6] $ 5,000 $ 0
10) Fax send/receive software licenses [Volume III,
Section 3.2] $ 10,000 $ 0
11) Other software and/or licenses (specify)(2) $ 64,000 $ 0
</Table>
- ---------------
(1) Include in network software
(2) PVF Source Control, J++, SQA Team Test, Perf Monitor, Netscape, Front-page,
Delphi, Windows Developers Kit, Microsoft C++
Bidder The PX Alliance
Authorized Signature: /s/ EDWARD M. SMITH
Date: January 14, 1997
16
FORM 3B
FORM 3B
- --------------------------------------------------------------------------------
PX Systems Software Backup System Support Software
<Table>
<Caption>
SIMULTANEOUS
SEQUENTIAL A/S AUCTION
A/S AUCTION (INCREMENTAL)
PX Systems Software Total Price $ 678,959 $ 0
1) Administrative System License [Volume III, Section 8](1) $ 0 $ 0
2) Licenses for standard communication software protocols,
configuration utilities, and network management [Volume
III, Section 10.3] $ 554,118 $ 0
3) FTP client and server software licenses [Volume III,
Section 3.2](2) $ 0 $ 0
4) World Wide Web browser and server software licenses
[Volume III, Section 3.2 and 5] $ 10,000 $ 0
5) Licenses for database server, database maintenance,
form, and report generation software [Volume III,
Section 10.4, 10.6] $ 82,665 $ 0
6) Licenses for database client software (may include
form and report generation if not included with the
server licenses) [Volume III, Section 10.4](1) $ 0 $ 0
7) Operating System Licenses [Volume III, Section 10.3] $ 27,176 $ 0
8) Language compiler and program linker licenses [Volume
III, Section 10.2](1) $ 0 $ 0
9) Virus detection/correction software licenses
(including update service) [Volume III, Section 3.6] $ 5,000 $ 0
10) Fax send/receive software licenses [Volume III,
Section 3.2](1) $ 0 $ 0
11) Other software and/or licenses (specify)(1) $ 0 $ 0
</Table>
- ---------------
(1) No extra cost for backup system
(2) Included in network costs
Bidder The PX Alliance
Authorized Signature: /s/ EDWARD M. SMITH
Date: January 14, 1997
17
F o r m 4 A
Form 4A
- --------------------------------------------------------------------------------
PX Systems Primary Operations Center Implementation Services
<Table>
<Caption>
SIMULTANEOUS
SEQUENTIAL A/S AUCTION
A/S AUCTION (INCREMENTAL)
PX Systems Implementation Services
Total Price $14,823,751 $ 0
1) System tests [Volume II, Section 3] $ 2,324,136 $ 0
2) Installation and Support services
[Volume II, Section 4.1] $ 2,148,907 $ 0
3) System maintenance until completion
of warranty period [Volume II,
Section 4.2] $ 2,502,408 $ 0
4) Maintenance after warranty [Volume
II, Section 4.2.4](1) $ 0 $ 0
5) (a) Maintenance contract for computer
and peripheral equipment [Volume II,
Section 4.2.4.1] $ 25,000 $ 0
(b) Maintenance contract for other
equipment [Volume II, Section
4.2.4.2](2) $ 0 $ 0
7) Documentation [Volume II, Section 6] $ 870,621 $ 0
8) Project management [Volume II,
Section 7] $ 4,643,247 $ 0
9) Other (specify)(3) $ 2,309,432 $ 0
</Table>
- ---------------
(1) See Commercial Proposal Section 4 - Maintenance Services
(2) Equipment consists of computers and peripherals only
(3) Systems Integration
Bidder The PX Alliance
Authorized Signature: /s/ EDWARD M. SMITH
Date: January 14, 1997
18
F o r m 4 B
Form 4B
- --------------------------------------------------------------------------------
PX Systems Backup System Implementation Services
<Table>
<Caption>
SIMULTANEOUS
SEQUENTIAL A/S AUCTION
A/S AUCTION (INCREMENTAL)
PX Systems Implementation Services
Total Price $ 1,748,097 $ 0
1) System tests [Volume II, Section 3] $ 258,238 $ 0
2) Installation and Support services
[Volume II, Section 4.1] $ 238,768 $ 0
3) System maintenance until completion
of warranty period [Volume II,
Section 4.2] $ 600,661 $ 0
4) Maintenance after warranty [Volume
II, Section 4.2.4](1) $ 0 $ 0
5) (a) Maintenance contract for computer
and peripheral equipment [Volume II,
Section 4.1.2.1] $ 10,000 $ 0
6) (b) Maintenance contract for other
equipment [Volume II, Section
4.1.2.2](2) $ 0 $ 0
7) Documentation [Volume II, Section 6] $ 96,736 $ 0
8) Project management [Volume II,
Section 7] $ 543,694 $ 0
9) Other (specify)(3) $ 0 $ 0
</Table>
- ---------------
(1) See Commercial Proposal Section 4 - Maintenance Services
(2) Equipment consists of computers and peripherals only
(3) None
Bidder The PX Alliance
Authorized Signature: /s/ EDWARD M. SMITH
Date: January 14, 1997
19
F o r m 5
FORM 5
- --------------------------------------------------------------------------------
PX SYSTEMS SPARE PARTS AND TEST EQUIPMENT
<Table>
<Caption>
SIMULTANEOUS
SEQUENTIAL A/S AUCTION
A/S AUCTION (INCREMENTAL)
PX Systems Spare Parts and Test Equip- $ 272,941 $ 0
ment Total Price
Spare Parts List [per Volume II,
Section 4.3]
1) Digital Spare Parts - Primary System $ 167,059 $ 0
2) Digital Spare Parts - Backup System $ 105,882 $ 0
3) $ $
4) $ $
5) $ $
6) $ $
7) $ $
8) $ $
9) $ $
10) $ $
</Table>
Bidder The PX Alliance
Authorized Signature: /s/ EDWARD M. SMITH
Date: January 14, 1997
20
FORM 6
FORM 6
- --------------------------------------------------------------------------------
PX SYSTEMS TRAINING TOTAL PRICE
<Table>
<Caption>
SIMULTANEOUS
SEQUENTIAL A/S AUCTION
A/S AUCTION (INCREMENTAL)
PX Systems Training Total Price $1,808,222 $ 0
1) System Overview Seminar [Volume II, Section 5.1] $ 271,233 $ 0
2) Database, Form, and Report Generation Training [Volume II, Sec- $ 180,822 $ 0
tion 5.2.1]
3) Hardware Training [Volume II, Section 5.2.2] $ 325,480 $ 0
4) Software Training (Except programming Training) [Volume II, Sec- $ 90,411 $ 0
tion 5.2.3, except Section 5.2.3.1]
5) Integrated PX Systems Training [Volume II, Section 5.2.4] $ 542,467 $ 0
6) PX User Staff Training [Volume II, Section 5.3] $ 397,809 $ 0
- -------------------------------------------------------------------------------------------------------------
</Table>
Bidder The PX Alliance
Authorized Signature: /s/ EDWARD M. SMITH
Date: January 14, 1997
- --------------------------------------------------------------------------------
21
FORM 7
FORM 7
- --------------------------------------------------------------------------------
PX PARTICIPANT SYSTEM SOFTWARE
<Table>
<Caption>
SIMULTANEOUS
SEQUENTIAL A/S AUCTION
A/S AUCTION (INCREMENTAL)
PX Participant System Software (if any)(1) $ 0 $ 0
- -------------------------------------------------------------------------------------------------------------
(1) No specific software required
</Table>
Bidder The PX Alliance
Authorized Signature: /s/ EDWARD M. SMITH
Date: January 14, 1997
- --------------------------------------------------------------------------------
22
F o r m 8
FORM 8
- --------------------------------------------------------------------------------
PX PARTICIPANT TRAINING
<Table>
<Caption>
SIMULTANEOUS
SEQUENTIAL A/S AUCTION
A/S AUCTION (INCREMENTAL)
PX Participant Training (per-student or per-class, specify
class size) [Volume II, Section 5.4](1) $ 12,000 $ 0
</Table>
(1) Cost per class, maximum size 20 students
Bidder The PX Alliance
Authorized Signature: /s/ EDWARD M. SMITH
Date: January 14, 1997
23
F o r m 9
FORM 9
- ------------------------------------------------------------------------------
PX SYSTEMS OPTIONS
<Table>
<Caption>
SIMULTANEOUS
SEQUENTIAL A/S AUCTION
A/S AUCTION (INCREMENTAL)
1) PX Systems Display Generation Software [Volume III, Section $ 0 $0
10.5](1)
2) PX Systems Display Generation Software Training [Volume II, $ 0 $0
Section 5.2.1](1)
3) Programming Training [Volume II, Section 5.2.3.1] $106,000 $0
4) Computer and Peripheral Equipment Maintenance Contracts -($434,097) $0
(optional quotation for 8-hour on-site response) [Volume
II, Section 4.2.4](2)
5) Maintenance Contracts of Other Equipment (optional $ 0 $0
quotation for 8-hour on-site response) [Volume II, Section
4.2.4.2](3)
6) Software Maintenance Contracts after Final Acceptance $ 0 $0
(specify recommended services) [Volume II, Section
4.2.4.3](4)
</Table>
1 No proprietary display generation software is used with our proposal
2 Price already included 2 hr response thus the deduct
3 Equipment consists of computers and peripherals only
4 Price included in maintenance during warranty see Commercial Proposal Section
4.2 Software Maintenance
<Table>
<Caption>
Bidder The PX Alliance
Authorized Signature: /s/ EDWARD M. SMITH
Date January 14, 1997
24
</Table>
FORM 10
FORM 10
- --------------------------------------------------------------------------------
UNIT PRICES
The following unit prices shall apply to additional equipment or services
that may be purchased by the PX.
<Table>
<Caption>
SIMULTANEOUS
SEQUENTIAL A/S AUCTION
A/S AUCTION (INCREMENTAL)
1) High-performance Workstation for Operations Center Console [Vol- $ 39,600 $ 0
ume II, Section 2.8 and Exhibit 2-3]
2) PC-based Workstation [Volume II, Section 2.8 and Exhibit 2-3] $ 6,000 $ 0
3) Video Copier [Volume II, Section 2.9 and Exhibit 2-2]) $ 9,000 $ 0
4) Laser Printer [Volume II, Section 2.7 and Exhibit 2-2] $ 4,000 $ 0
5) Impact Printer, if applicable [Volume II, Section 2.7 and Exhibit 2-2] $ 631 $ 0
6) PX Participant User Document (per set) [Volume II, Section 6.5.2] $ 150 $ 0
7) Daily rates for Contractor's personnel at factory (specify skill levels)
Principle Consultant $ 2,800 $ 0
Project Manager $ 2,400 $ 0
Technical Lead $ 2,000 $ 0
Designer $ 1,600 $ 0
Programmer $ 1,200 $ 0
Technician $ 800 $ 0
Administrative Support $ 400
8) Daily rates for Contractor's personnel to provide services at site (same as 7 $ 0
(specify skill levels) above)
- -------------------------------------------------------------------------------------------------------------
</Table>
Bidder The PX Alliance
Authorized Signature: [ILLEGIBLE]
Date: January 14, 1997
- --------------------------------------------------------------------------------
25
FORM 11
FORM 11
- --------------------------------------------------------------------------------
PX SYSTEMS BACKUP SYSTEM SERVICES
<Table>
<Caption>
SIMULTANEOUS
SEQUENTIAL A/S AUCTION
A/S AUCTION (INCREMENTAL)
PX Systems Backup System Services Net Price [Volume III, Section 14.3](1) $ 0 $ 0
1) Space Lease(1) $ 0 $ 0
2) Vendor-provided Equipment Lease(1) $ 0 $ 0
3) Operations Services(1) $ 0 $ 0
4) Less Purchase Cost of Vendor-provided Equipment(1) $ (0) $ (0)
- -------------------------------------------------------------------------------------------------------------
(1) The PX Alliance is not proposing an option to own the backup systems
</Table>
Bidder The PX Alliance
Authorized Signature: [ILLEGIBLE]
Date: January 14, 1997
- --------------------------------------------------------------------------------
26
[GRAPH]
3. Proposed Payment and Milestones
PAYMENT MILESTONES
PAYMENT MILESTONES
- --------------------------------------------------------------------------------
The PX Alliance proposes a payment schedule as follows:
* 10% upon contract signature.
* Monthly milestones and payments commensurate with the milestones achieved and
the amount of work engaged. Specific detailed milestones to be agreed with
the PX Program Manager.
* Hardware and Software License Fees will be incorporated in the monthly
milestones for payment upon delivery.
* Program Management fees will be incorporated in monthly milestones.
* The final payment will be made upon acceptance, as detailed in Section 18 of
the General Terms and Conditions.
27
[MAP]
4. MAINTENANCE SERVICES
M a i n t e n a n c e S e r v i c e s
Maintenance Services
- --------------------------------------------------------------------------------
The PX Alliance aims to provide the highest possible quality product
and services to the PX. Our commitment to quality extends far beyond
the creation of and implementation of computer software. We are acutely
aware of the issues and concerns arising from the operation of the
systems in a rigorous production environment. This awareness is
heightened by first hand experience of having to operate the computer
systems developed within a mission critical production environment.
(See Section 12 of the Technical Proposal.)
This unique commitment to performance is backed by a combination of
quality development and a comprehensive post implementation maintenance
program. The maintenance program outlined in Annex C to Appendix A
addresses the nature and criticality of the system by providing
maintenance support from the PX Alliance partner that created and
designed the component solution. This ensures full continuity and
expedient service by leveraging the intimate understanding of the
intricacies of the solution by exploiting nuances within the design.
Hardware Maintenance
Hardware maintenance will be provided directly by Digital Equipment
Corporation, the original hardware vendor for the PX Alliance. The
following describes Digital's Maintenance Product Service for Priority
Plus Extended Warranty (standard response coverage) and the additional
Premier Service Extended Warranty (2 hour response) that will be
provided to the PX. The cost for both warranty packages is included in
the PX Alliance proposal.
Digital PRIORITY PLUS - Extended Warranty
- --------------------------------------------------------------------------------
Includes the following services:
* Priority Plus Service Package for AlphaServer class configuration.
* One (1) year duration.
* Hardware maintenance is on site 7x24 with 4 hour response for
DIGITAL systems and DIGITAL installed options.
* Named engineer.
* Software support is 7x24 with Named Account Rep and 1 hour committed
response on DIGITAL UNIX, OpenVMS, or Windows NT support.
* License Subscription on DIGITAL UNIX or OpenVMS, not on Windows NT.
* Updated for DIGITAL UNIX and OpenVMS on CDROM. Excluding LNC01,
LGxxPlus, LGLx, LPS32+, and LF02 Printers.
Digital PREMIER PACKAGE - Extended Warranty
- --------------------------------------------------------------------------------
Includes the following services:
* Premier Service Package for AlphaServer configuration.
* One (1) year duration.
* Hardware maintenance is on site 7x24 with 2 hour response for
DIGITAL systems and DIGITAL installed options.
* Named engineer.
28
M a i n t e n a n c e S e r v i c e s
* Software support is 7x24 with named Acct Rep and 1 hour committed
response on DIGITAL UNIX, OpenVMS, or Windows NT support.
* Proactive Patch Distribution.
* License Subscription on DIGITAL UNIX or OVMS, not on Windows NT.
* Software updates for DIGITAL UNIX & OVMS on CDROM. Excluding LNC01,
LGxx+, LPS32+, and LF02 Printers.
Software Maintenance
Software maintenance services are reflected in the proposed price. A
sample Software Maintenance Service Agreement is included in Annex C to
Appendix A of this Commercial Proposal.
29
[GRAPH]
5. Creative Options
CREATIVE OPTIONS
CREATIVE OPTIONS
- --------------------------------------------------------------------------------
The RFP and the PX alliance Technical Proposal response deal with the
procurement and roll-out of systems and infrastructure to support the operation
of the California Power Exchange (PX). They do not cover the subsequent
operations and fist line support of those systems and business operations. The
purpose of this Section is to offer for consideration an option whereby the PX
Alliance would both build and operate the business systems for the PX
management.
The PX Alliance is fundamentally commitment to the successful operations of the
Power Exchange by January 1, 1998. Complementing our base Technical Proposal, we
offer three options for your consideration, each of which would provide an even
more robust operation.
o As a further demonstration of our commitment to the successful
operation of the California Power Exchange, the PX Alliance also plans
to present a proposal for the ISO Scheduling Infrastructure, Scheduling
Applications, and Business Systems. Given the overlap of these
functions and the commonality of their solutions, we will offer
significant savings should we be selected for both contract. The unique
worldwide experience of the PX Alliance and our in-depth involvement in
the California electricity market provide even more synergy than might
be expected form merely selecting the same partner for both operations.
Because our closely integrated team approach, we can focus on the
concurrent development, seamless integration and expeditious roll-out
of these parallel operations to minimize the overall build time and
further mitigate the risk.
o The RFP deals solely with the initial build and implementation of the
systems and infrastructure to deliver California's Power Exchange by
January 1, 1998. Clearly, the PX will require significant operational
staff to provide these business service. Indicative of our commitment
to your success, Perot Systems offers to assume responsibility of these
continued operations. This ready and expedient solution provides a
single point of responsibility, accountable for the provision,
implementation, operation, and support of these complex business
systems. I will also reduce transition timelines and cost, mitigate the
risk of inefficiencies arising form hand-off, and ensure readiness for
market response. In addition, this solution commits the PX Alliance to
assume even more of the risk in validating business process and
protocols. Further details are in Section 12 of the Technical Proposal.
o The PX Alliance recommends building a prototype to help define and test
the business rules concurrent with the continued and iterative
development of the fully responsive PX system. The early and frequent
involvement of the PX staff, market participants, and other
stakeholders to establish and validate the market rules, revised
protocols, and bidding and scheduling operations in critical to the
successful and timely operations of the Power Exchange. Further details
of our testing plans are outlined in Section 2 of the Technical
Proposal.
MEETING THE CHALLENGE
- --------------------------------------------------------------------------------
We, the PX Alliance, applause the State of California for empowering the PX to
take this proactive leap toward the new millennium by being the first in the
United States to offer its citizens the benefits of deregulation. This
monumental task requires a quality team and close alliance between the PX and
your chosen provider to overcome the innumerable challenges to success.
We, the PX Alliance, three innovative industry leaders, are totally committed to
the success of the California Power Exchange. Our unique combinations of proven
products, quality services, robust training, through systems integration an
expert project management will be focused on bringing the California Power
Exchange to timely and successful operation by January 1, 1998.
30
[MAP]
APPENDIX A
GENERAL TERMS AND CONDITIONS
Table of Contents
<Table>
<Caption>
Section Page
- ------- ----
1. AGREEMENT ........................................................... 1
2. DEFINITIONS ......................................................... 1
3. TOTAL AUTHORIZED AMOUNT AND EFFECTIVE PERIOD ........................ 4
4. PRIORITY OF DOCUMENTS ............................................... 5
5. SCOPE OF WORK ....................................................... 5
6. WORK SCHEDULE ....................................................... 5
7. RISK OF LOSS ........................................................ 7
8. TITLE ............................................................... 7
9. COMMERCIAL TERMS .................................................... 8
Invoices ............................................................ 8
Payment ............................................................. 8
Taxes ............................................................... 9
Payment for Field Technical Services ................................ 9
Claims .............................................................. 10
10. CHANGES ............................................................. 10
11. PROJECT MANAGEMENT .................................................. 11
12. CODES AND STATUTES .................................................. 12
13. SUBCONTRACTORS ...................................................... 13
14. SUSPENSION .......................................................... 13
15. PROPRIETARY INFORMATION AND MATERIAL ................................ 14
</Table>
PROPRIETARY INFORMATION
Not for use or disclosure outside of the
Parties except under written agreement
(1)
GENERAL TERMS AND CONDITIONS
Table of Contents
<Table>
<Caption>
Section Page
- ------- ----
16. PROPRIETARY RIGHTS AND LICENSES...................................... 15
Software and Documentation License .................................. 15
Right to Use ........................................................ 16
Right to Copy the Licensed Software and Licensed Documentation ...... 17
Distribution Rights ................................................. 17
[Reserved] .......................................................... 17
[Reserved] .......................................................... 17
Improvements and Upgrades ........................................... 18
Right to Transfer ................................................... 18
Reverse Engineering ................................................. 18
Software Maintenance ................................................ 18
17. SOURCE CODE ......................................................... 18
18. INSPECTION, TESTING AND ACCEPTANCE .................................. 19
Inspection .......................................................... 19
Supplier Testing .................................................... 19
Integrated System Tests ............................................. 19
Operational Dry Run ................................................. 20
Availability Test ................................................... 21
Acceptance .......................................................... 21
Delay in Completion ................................................. 22
19. WARRANTIES .......................................................... 22
System .............................................................. 22
Documentation ....................................................... 23
Third Party Equipment ............................................... 24
Replacement Parts ................................................... 24
Work ................................................................ 24
Conditions of Warranties ............................................ 24
20. SUPPLIER'S SYSTEM SUPPORT ........................................... 25
21. INFRINGEMENT PROTECTION ............................................. 26
</Table>
PROPRIETARY INFORMATION
Not for use or disclosure outside of the
Parties except under written agreement
(2)
GENERAL TERMS AND CONDITIONS
Table of Contents
<Table>
<Caption>
Section Page
- ------- ----
22. FITNESS FOR DUTY .................................................... 28
23. INDEMNITY ........................................................... 29
24. INSURANCE ........................................................... 30
25. SAFETY NOTIFICATIONS ................................................ 32
26. LIMITATION OF LIABILITY ............................................. 33
27. DISPUTES ............................................................ 34
28. TERMINATION AT WILL ................................................. 35
29. DEFAULTS AND CANCELLATION FOR CAUSE ................................. 36
30. NON-WAIVER .......................................................... 37
31. ASSIGNMENT .......................................................... 37
32. SEVERABILITY ........................................................ 37
33. NOTICES ............................................................. 38
34. GOVERNING LAW ....................................................... 38
35. SECTION HEADINGS .................................................... 38
36. SURVIVAL ............................................................ 38
37. CONFLICT OF INTEREST/BUSINESS ETHICS ................................ 39
38. EQUAL OPPORTUNITY LAWS .............................................. 40
39. INJURY AND ILLNESS PREVENTION PROGRAM ............................... 42
</Table>
PROPRIETARY INFORMATION
Not for use or disclosure outside of the
Parties except under written agreement
(3)
GENERAL TERMS AND CONDITIONS
Table of Contents
<Table>
<Caption>
Section Page
- ------- ----
40. ENTIRE AGREEMENT .................................................... 42
41. LICENSE AGREEMENTS .................................................. 42
42. THIRD PARTY BENEFICIARIES ........................................... 42
43. EXECUTION ........................................................... 43
</Table>
ANNEX A: Specification
ANNEX B: Price
ANNEX C: License and Software Maintenance Agreements
ANNEX D: Third Party Software
ANNEX E: Source Code
ANNEX F: Dispute Resolution Procedures
ANNEX G: Purchaser's Published Policies and Rules on Business Ethics
PROPRIETARY INFORMATION
Not for use or disclosure outside of the
Parties except under written agreement
(4)
GENERAL TERMS AND CONDITIONS
THIS AGREEMENT, effective __________________, 1997 (Agreement), is between
______________________________________ (Supplier), a Delaware limited liability
company, [address], [city], and _______________________________ (Purchaser), a
project management contractor representing the Western Power Exchange (WEPEX),
a collaborative effect by Pacific Gas and Electric Company, San Diego Gas &
Electric Company and Southern California Edison Company to establish a Power
Exchange to operate a California spot market for electricity in response to the
California Public Utilities Commission (CPUC) December 20, 1995 ruling to
restructure the electric utility industry. The parties hereinafter shall be
individually known as "Party" and collectively as "Parties." This Agreement
consists of this paragraph and the following Articles, and includes all
Exhibits, Appendices, Forms and other documents incorporated by reference
herein or attached hereto and which are hereby made a part hereof.
1. AGREEMENT
In consideration of the payments to be made and obligations to be performed
by Purchaser, Supplier shall perform the Work and its other obligations,
all as specified in this Agreement.
2. DEFINITIONS
When used herein with initial capitalizations, whether in the singular or
in the plural, the following terms shall have the following meanings:
Acceptance or Accepted: When all of the conditions of acceptance have been
must as set forth in Section 18.6 hereof.
Acceptance Test Procedure: A document, prepared by Supplier and approved by
Purchaser, which designates the tests and inspections to be performed on
the System to determine its conformance with the Specification.
Amendment: Document issued by Purchaser, and agreed to by Supplier, which
amends this Agreement pursuant to Article 10.
Authorized Representative: The only person(s) or entity(ies) designated by
notice given to Supplier by Purchaser as being authorized to act on behalf
of Purchaser for the purposes of this Agreement, subject to any limitations
specified in the notice.
PROPRIETARY INFORMATION
Not for use or disclosure outside of the
Parties except under written agreement
Authorized Users: As defined in Section 16.1.1.
CPUC: The California Public Utilities Commission or its regulatory
successor.
Derivative Work: A revision, modification, translation, abridgement,
condensation, expansion, upgrade, adaptation into other operating systems,
or other manipulation of the Licensed Software, or any other form in which
the Licensed Software may be recast, transferred or adapted, which if
prepared without the consent of the owner(s) of the Licensed Software would
constitute an infringement of such owner(s) intellectual property rights to
said Licensed Software.
Developments: As defined in Section 16.2.
Delivery Dates: The contractual dates as specified in this Agreement on
which the components of the System shall be transferred to the common
carrier for shipment (FOB Point of Shipment) or shall be received at the
designated shipment destination (FOB Destination), as specified by the FOB
terms in this Agreement.
Documentation: Drawings, procedures, instructions, reports, manuals,
Software, Software Documentation, and other data, to be furnished by
Supplier pursuant to this Agreement.
Field Technical Services: Technical services furnished by Supplier at the
Jobsite as stated in the Specification, such as technical support during
installation, acceptance testing, and implementation.
Funding Decision: CPUC Decision 96-08-038 (August 2, 1996), as that
Decision may be modified and superseded. This Decision among other things
provides for funding of the Work and establishes a Trustee, a trust
advisory committee and independent technical advisors, which will have
oversight over the Work and payments for such Work.
Integrated System Tests: Tests prepared by Supplier and approved by
Purchaser, and conducted by Supplier and Purchaser (or their authorized
representatives) in accordance with the Acceptance Test Procedure on the
System at Supplier's facility and/or the Jobsite to demonstrate conformance
with the Specification.
Jobsites: The locations of the facilities selected by Purchaser for the
deployment of the System as set forth in the Specification.
Licensed Documentation: Documentation furnished under this Agreement to
which Supplier or a third party (licensor of Supplier) owns the
intellectual property rights which are not transferred to the Licensee
under this Agreement.
Licensed Software: As defined in Section 16.1.
Licensee under this Agreement.
System (PX System): The computerized system including and consisting of
hardware, computers, processors, firmware, Software, Software Documentation, and
interconnecting cables and other incidental equipment, which comprise the
deliverable system as an integrated whole, more specifically described in the
Specification; the System is also referred to as the PX System.
System User: System User shall mean any person, legal or natural, that uses the
System for its intended purposes, including but not limited to the marketing
and procurement of electricity.
Trustee: The Trustee or Trustees of the trust which may be established as
required by the Funding Decision in order to manage funds for development of the
infrastructure for the PX.
Uncontrollable Force: Causes beyond the reasonable control of a Party including
but not limited to: flood, fire, lightning, earthquake, unusually severe
weather, material unavailability which by the exercise of due diligence and
foresight such Party could not avoid and which by exercise of due diligence it
is unable to overcome, epidemic, quarantine restriction, war, sabotage, act of a
public enemy, insurrection, riot, civil disturbance, strike, restraint by court
order or public authority and action or non-action by or inability to obtain
authorization or approval from any governmental agency or authority (except, in
the case of Purchaser, the CPUC, Trustee or PX), which by the exercise of due
diligence it is unable to overcome. For Supplier, "Uncontrollable Force" shall
also include delays by the Purchaser and Authorized Users in their
determination, negotiation or approval of, and their inability to reach
agreement with respect to, any matter that adversely affects the Work or the
Work Schedule, including but not limited to the "business rules" and protocols
under which the PX is to function, as well as any necessary clarifications of
such business rules and protocols.
Work: The work necessary to develop the System and the Documentation, including
all engineering, analysis, design, development, manufacture, assembly,
inspection, testing, shipment, installation, integration, Field Technical
Services, training, and all other tasks and obligations of Supplier to be
performed or furnished as required by this Agreement.
Work Schedule: A chronological listing of significant events and milestones in
the performance of the Work, including delivery and testing of the System as
agreed to by the Parties, as such chronological listing may be amended or
modified from time to time.
Work Product: As defined in Section 16.2.2 hereof.
3. TOTAL AUTHORIZE AMOUNT AND EFFECTIVE PERIOD
3.1 Pursuant to the {OPTIONS: Cost Summary Sheet, Cost Sheet, Cost
Proposal Summary Sheet, page(s) ___ of Supplier's Proposal] dated
[date], which is [OPTIONS: attached hereto and made a part of this
Agreement, is incorporated herein by this reference], the total
authorized amount of this Agreement is not to exceed $______.00,
including applicable taxes and an allocation of $______.00 for bonding
[if applicable], without prior authorization by issuance of an
Amendment.
3.2 This Agreement shall be effective for Work authorized from
___________, 1996 through _______________, 1998, inclusive, unless
authorized by an Amendment.
4. PRIORITY OF DOCUMENTS
In the event of conflicting provisions that may be contained in this
Agreement, provisions shall govern in the following order: Amendments from
the most recent to the earliest, these General Terms and Conditions, the
Specification, and other specifically referenced documents. Each Party
shall notify the other immediately upon the determination of the existence
of any such conflict.
5. SCOPE OF WORK
This Agreement is intended to cover all requirements necessary to perform
the Work and to furnish a System in good working order that performs in all
material respects all functions specified in the Specification. Unless
expressly excluded in the Specification or this Agreement, any and all
equipment, labor, material and services necessary to provide such a System
and Work shall be within the scope of this Agreement and shall be furnished
by Supplier for the price set forth in Annex B to this Agreement.
7. WORK SCHEDULE
6.1 Supplier shall complete the Work and deliver the System and
Documentation in all material respects as shown in the Work Schedule.
6.2 If the scheduled dates are not met, or it is reasonably certain that
they will not be met, due, in either case, solely to Supplier's
negligence or willful misconduct, and such delayed dates may impact
the Work Schedule, Supplier shall, at its own expense, take whatever
measures may be required (including additional resources, shifts, and
overtime) to bring the
Work back on schedule
6.3 Uncontrollable Forces:
6.3.1 Supplier shall not be required to incur additional expense and
shall not be liable to Purchaser for delay or inability of
Supplier to perform the Work, due to Uncontrollable Forces;
provided the Supplier: (i) promptly notifies Purchaser in
writing of the nature, cause, date of commencement, and expected
duration of such delay or inability; and (ii) has exercised due
diligence to meet the Work Schedule. In such event, Purchaser
shall either: (a) extend the Work Schedule for a period of time
consistent with the period of such delay, without any change in
price; or (b) subject to Section 10.2, direct by an Amendment
that performance of the Work be accelerated.
6.3.2 Purchaser shall not in default in the performance of its
obligations under this Agreement (other than obligations to pay
monies pursuant to this Agreement for Work performed and
Accepted or work performed or thereafter Accepted if their delay
or inability to perform is due to Uncontrollable Forces.
6.3.3 The following delays shall in no event constitute Uncontrollable
Forces in performance by Supplier and shall not constitute a
reason for extending the date for performance of the Work:
(a) Delays by Subcontractors for reasons other than those
defined above;
(b) Delays in Documentation approval by Purchaser due to
inadequate Documentation or approval schedules allowing less
than ten (10) business days for review; and;
(c) Delays caused by Supplier's lack of sufficient personnel
with necessary technical skills.
6.4 Supplier shall use reasonable commercial efforts to schedule Work
performed by Supplier on the PX's premises to conform to published PX
working hours and to account for the PX's observed holiday. Upon request by
Supplier, Purchaser will provide reasonable access to PX's premises outside
published PX working hours and on PX's observed holidays to the extent
necessary to deliver the System and Documentation on the date set forth in
the Work Schedule.
6.5 Supplier's performance hereunder is contingent upon the cooperation
of Purchaser, including the supply to Supplier of adequate resources
and information as mutually agreed pursuant to this Agreement. If any
delays in Supplier's performance occur as a result of failure or
untimely performance by Purchaser, the PX, the Trustee, the
Authorized Users or their employees, contractors, or vendors, this
Agreement, the purchase price and Delivery Dates or Work Schedule, as
appropriate, shall be equitably adjusted to reflect such delay in an
Amendment and Supplier shall not incur any liability to Purchaser or
any other person as the result of such delay. If such delays last for
thirty (30) calendar days or more, Supplier shall be entitled to
terminate this Agreement by giving seven (7) days' prior written
notice to Purchaser, such termination to be effective on the date
indicated on such notice, provided that prior to giving such notice,
Supplier shall invoke the provisions of Section 27 to attempt to
resolve the matter at issue.
7. RISK OF LOSS
Risk of loss of or damage to the System shall pass from Supplier to
Purchaser upon Acceptance of the System, except that the risk of loss of
or damage to any hardware, Software or Documentation located on premises
other than Supplier's or any Subcontractor's premises, including
Purchaser's or PX's premises, whether prior to or following Acceptance,
shall transfer to Purchaser at the time such hardware, Software or
Documentation becomes located on such premises.
8. TITLE
8.1 Title to the System, except for Licensed Software and other
intellectual property, shall pass to Purchaser upon final payment of
all amounts due and payable under this Agreement through the date of
Acceptance. Title to Licensed Software and other intellectual
property shall remain with Supplier or the applicable third party,
subject to the license granted to Purchaser as provided in Article
16, upon final payment of all amounts due and payable under this
Agreement through the date of Acceptance.
8.2 Title to all data input into the System and to all data output
received through the operation of the System shall remain with
Purchaser, except test data developed by Supplier or its
Subcontractors and input into or output received through the
operation of the System, title to which test data shall remain with
Supplier.
8.3 Title to Documentation, except for Licensed Documentation, shall pass
to Purchaser upon final payment of all amounts due and payable under
this Agreement through the date of Acceptance. Title to Licensed
Documentation shall remain with Supplier or the applicable third
party, subject to the license granted to Purchaser as provided in
Article 16, upon final payment of all amounts due and payable under
this Agreement through the date of Acceptance.
8.4 Title to all Work Product, which is expressly listed on an addendum to
this Agreement as being developed for Purchaser's ownership, shall pass
to Purchaser upon final payment of all amounts due and payable such
Work Product under this Agreement through the date of Acceptance.
8.5 Passage of title shall be free and clear of all liens and encumbrances
(other than the licenses of the Licensed Software and Licensed
Documentation) and shall not impair the rights of Purchaser regarding
the System or Documentation.
9. COMMERCIAL TERMS
9.1 Invoices:
9.1.1 For progress or partial shipment payments when so stated in
this Agreement: The invoice for each payment listed shall be
submitted to Purchaser following substantial completion of
the corresponding milestone.
9.1.2 Final payment: The invoice for the final payment shall be
submitted to Purchaser when all of the items of the System
have been received at the Jobsite and the System has been
Accepted pursuant to Section 18.6 hereof.
9.1.3 Invoices shall be submitted to the address as directed by
Purchaser.
9.1.4 Invoices shall not be dated prior to completion of the
portion of the Work for which they are submitted.
9.1.5 Deductions for unsubstantiated or incorrect charges and
retention shall be invoiced separately.
9.2 Payment:
9.2.1 Payment milestones have been selected to identify the actual
status of the portion of the Work completed. Payments shall
be based on actual completion of each milestone event, not
on the scheduled completion date. When a change in the Work
is approved, the total purchase price for the Work and the
remaining milestone payments shall be adjusted accordingly.
When a milestone has been satisfactorily completed, payments
shall be made by Purchaser within thirty (30) calendar days
of receipt of a correct invoice therefor. Late payments will
bear interest accrued and compounded daily at a rate equal
to the lesser of (i) two percent (2%) above the reference
rate charged by the Bank of America,
NT&SA, San Francisco, California, or (ii) the highest rate allowed
by applicable law.
The percent of the total purchase price to be paid upon completion
of each milestone shall be as set forth in this Agreement. The
payment milestones are as follows:
Milestone Milestone Description Percentage
(See Section 3 of the Commercial Proposal)
9.2.2 For any portion of the System or Documentation which does not
conform in all material respects to the Specification, a mutually
agreeable portion of the payment may be withheld until such
nonconformance is corrected. In the event the parties disagree as to
whether any portion of the system or Documentation conforms to the
requirements of this Agreement, the dispute shall be settled in
accordance with Section 27 hereof.
9.3 Taxes: Supplier shall pay, and Purchaser shall reimburse Supplier for, all
sales, use, personal property and other taxes required to be paid by
Supplier in connection with the Work and the System, except franchise taxes
and taxes levied upon Supplier's income. Each party will cooperate with the
other in minimizing any applicable tax and, in connection therewith,
Purchaser will provide Supplier with any resale certificates, information
regarding use of materials, services or sales, or other exemption
certificates or information reasonably requested by Supplier.
Supplier shall identify separately on invoices: (i) the non-taxable portion
of the price and the reason therefor; and (ii) the taxable portion of the
price with its corresponding taxes. Supplier shall provide supporting data
as may be requested by Purchaser.
9.4 Payment for Field Technical Services when not included in the fixed
contract price:
94.1 Field Technical Services approved by Purchaser, which are not
included in
the fixed price for the system, shall be paid at the
rates submitted for a calendar year.
9.4.2 Local travel and living expenses while at the
Jobsite shall be paid at cost plus 20% for
administrative charges. Travel to and from the
Jobsite shall be reimbursed at the lesser of
published coach/economy class rates or actual cost.
9.4.3 Timesheets for the Field Technical Services showing
the individuals and the hours worked shall be
presented weekly to the Authorized Representative.
9.4.4 At the end of each month or upon completion of the
Work, whichever occurs first, Supplier shall submit
its invoice listing the name of the person, dates and
hours worked and applicable rate, per diem charges
and rates, and air travel charges.
9.5 Claims:
Supplier shall notify the Authorized Representative in writing
of its intent to make a claim for any additional compensation
within thirty (30) calendar days after the event which gave
rise to such claim.
10. CHANGES
10.1 Supplier may request or Purchaser may direct changes in the
Work including, but not limited to, adding to, deleting from
or modifying the Work and the Specification. In addition,
changing conditions of law or Uncontrollable Force may require
contract price or date of performance revisions to be agreed
upon by the Parties. This Agreement, the purchase price and
Delivery Dates or Work Schedule, as appropriate, shall be
equitably adjusted to reflect such changes, and such changes
and equitable adjustments shall be set forth in an Amendment.
10.1.1 Upon submission or receipt of a request for a change
to the Work, Supplier shall, within ten (10) calendar
days, submit to Purchaser, in writing, either a
detailed schedule for accomplishing the change and a
good faith estimate of the cost of the change, or
notification as to when such a schedule can be
provided by Supplier. Within five (5) business days
after receiving such schedule, Purchaser will approve
such change or withdraw the request for such change.
With such
schedule, Supplier shall make a good faith estimate
of the effects of each change on the following
performance items:
(a) Percentage of spare main and auxiliary
memory;
(b) Loading of transfer channels to computer
peripherals;
(c) User interface responses; and
(d) Loading of the processors.
No change in these performance items is allowed
unless specifically approved by Purchaser, in
writing, regardless of authorized changes to hardware
or Software and regardless of the options purchased.
Approval of any change to the System that could
reasonably affect any of these performance items
shall be deemed to be specific approval of a change
in these performance items. Supplier shall make a
good faith estimate of the effects of changes on the
completion date of the Work and completion
milestones. Supplier shall provide a written
assessment of the impact of each specific change on
the spare parts, training, testing, and Documentation
requirements.
10.2 Changes to this Agreement shall be made only by mutual
agreement of the Parties in accordance with a mutually
satisfactory change procedure. To be valid, such changes shall
be set forth in an Amendment.
10.3 Supplier shall provide reasonably sufficient cost supporting
data including, but not limited to, work hours by type of
labor, rates, material and Subcontract costs, to enable
Purchaser to evaluate whether or not to approve a change.
Supplier shall not implement a change or submit an invoice for
the resulting price change until the authorizing Amendment has
been issued by Purchaser and accepted by Supplier.
10.4 The Parties recognize that minor changes may be required
during performance of the Work. Such changes shall be
requested by the issuance of marked up approval drawings and
documents, directives from the Authorized Representative, or
by other procedures established by the Authorized
Representative, and shall require the approval of the
Authorized Representative. If Supplier has a claim for
adjustment in the price or schedule due to such changes, it
shall submit to the Authorized Representative in writing a
claim to this effect within thirty (30) calendar days from the
date such changes were requested. Supplier shall state such
claim in sufficient detail to allow the Authorized
Representative to determine the reasonableness of the claim.
If the Authorized Representative concurs that such change is a
change of the requirements of this Agreement, including the
Specifications, and desires to implement such change, then an
authorizing amendment shall be issued. If Supplier does not
agree that the proposed change is a minor change, Supplier
shall not be required to implement such change unless and
until the procedures in Section 10.1 are completed.
10.5 Supplier shall comply in all material respects with each
Amendment in accordance with the Work Schedule therein and
evidence its acceptance of all of the provisions contained
therein as full compensation for all costs and schedule impact
of such changes, by promptly executing the acceptance copy of
each Amendment when requested and returning such acceptance
copy to the Authorized Representative.
10.6 Any disagreement between the parties as to whether the change
constitutes a change of requirements shall be resolved
pursuant to Article 27.
11. PROJECT MANAGEMENT
11.1 Purchaser shall assign an Authorized Representative who shall
manage Purchaser's activities associated with this Agreement
and shall have overall direction and responsibility for
directing the Work. Any correspondence to Purchaser of a
technical and Work administrative nature shall be addressed to
the attention of the Authorized Representative.
11.2 Administration of this Agreement and Amendments shall be
performed by Purchaser. Any correspondence to Purchaser
regarding commercial provisions or terms and conditions of
this Agreement shall be identified by this Agreement number
and shall be addressed to the attention of the Authorized
Representative. A mutually satisfactory project management
framework will be developed and used by the Parties to assign
responsibilities, interdependencies, milestones, and schedules
and to delineate reporting requirements.
11.3 Supplier shall assign a Supplier Representative who shall
manage Supplier's activities associated with this Agreement
and shall have overall direction and responsibility for the
Work by Supplier. Any correspondence to
Supplier shall be addressed to the attention of the Supplier
Representative.
11.4 This Agreement and all Supplier sub-orders are subject to
status monitoring by Authorized Representative or a designated
representative of the Authorized Representative.
11.5 Within thirty (30) days after receipt of this Agreement,
Supplier shall furnish to the Authorized Representative the
current status of the events in the Work Schedule. Thereafter,
Supplier shall furnish every month to the Authorized
Representative a status report, in triplicate, showing the
actual status of each production phase and each milestone. If
the actual completion milestones lag such scheduled dates, and
explanation shall accompany the status report stating the
problem area, measurers taken to eliminate the problem, and
when the item will be back on schedule. The Authorized
Representative shall be notified immediately of any potential
problem situations which may affect the timely completion of
any of the milestones.
11.6 Purchaser, the Authorized Representative and their agents
shall have the right of access to Supplier's and
Subcontractor's facilities upon reasonable notice and during
normal working hours to verify conformance to the Work
Schedule and inspect the Work.
11.7 Any deviations from the Specification shall require the prior
written approval of the Authorized Representative or the
issuance of a Amendment.
12. CODES AND STATUTES
12.1 The work shall comply in all material respects with all
material applicable laws, statutes, acts, ordinances,
regulations, codes and standards of federal, state and local
governmental agencies having regulatory federal jurisdiction
in effect on January 13, 1997. Any changes to these after such
date shall be treated as a change to the Work authorized by an
Amendment.
12.2 Supplier shall conform to the employment practices
requirements of Executive Order 11246 of September 24, 1965,
as amended, and applicable regulations promulgated thereunder.
13. SUBCONTRACTORS
Supplier shall at all times be responsible for the Work, and for the
acts and omissions of Subcontractors and persons directly or indirectly
employed by Subcontractor, which acts
or omissions, were they acts or omissions of Supplier or any persons
directly employed by Supplier, would be a breach of this Agreement. This
Agreement shall not constitute a contractual relationship between any
Subcontractor and Purchaser. Purchaser shall not have any obligation for
payment to any Subcontractor. Purchaser shall have the right of approval of
any new Subcontractors which were not identified in Supplier's proposal,
provided that such approval shall not be unreasonably withheld.
14. SUSPENSION
14.1 Purchaser may order Supplier to suspend, and, with Supplier's consent
to subsequently resume, performance of all or of any part of the Work
at any time by the issuance of an Amendment.
14.2 If Purchaser orders suspension of all or any part of the Work
Purchaser shall: (i) complete the payments due (for Work performed
whether or not such Work has been Accepted up to the effective date of
the suspension notice and shall resume payments in accordance with the
provisions of Article 9 hereof following the date on which the
suspended Work is resumed; (ii) pay for the additional reasonable
costs necessarily incurred by Supplier in deactivation, during
suspension, and in reactivation of the suspended Work, including any
overhead costs; (iii) equitably adjust the Work Schedule consistent
with the scope and duration of the suspension or direct that
performance of the suspended Work be accelerated as authorized by an
Amendment and equitably increase the costs, and (iv) a suspension fee
equal to $1,000,000 per month during the term of the suspension.
Supplier shall provide sufficient supporting data for evaluation of
the reasonableness of the charges for item (ii) above. In the event
the parties are unable to agree on the costs in (ii) above or on the
adjustment of the Work Schedule or costs in (iii) above, such
disagreement shall be resolved pursuant Article 27. In the event the
parties fail to resolve such disagreement in accordance with Article
27 within thirty (30) calender days, Supplier shall have the right to
terminate this Agreement.
14.3 The provisions of this Article shall be Supplier's sole remedy and
Purchaser's total liability as a result of any suspension of the Work,
in whole or in part.
15. PROPRIETARY INFORMATION AND MATERIAL
15.1 Each Party (a "receiving Party") receiving Confidential Material
(defined below) from the other Party (a "disclosing Party") in
connection with this Agreement (directly or indirectly) agrees to hold
that Confidential Material in confidence and, except as permitted in
this Article 15, agrees not to disclose it, or otherwise make it
available to any person or third party, or to use it for the benefit
of any third party, the disclosing Party. Each Party agrees that all such
Confidential Material:
(a) shall be used only for the purpose of performing Work or using the
System; and
** TEXT MOVED (SEE NOTE BELOW)
(b) shall not be reproduced, copied, in whole or in part, except as
specifically directed by the disclosed Party and necessary for the
purpose set forth in (a) above; and
(c) shall, together with any copies (except backup and archival copies
produced in accordance with a Party's network information processing
procedures), reproductions or other records thereof, in any form, and
all information and materials developed by the therefrom, be returned
to the disclosing Party when no longer needed in connection with this
Agreement.
15.2 To the extent that a receiving Party needs to disclose Confidential
Material to a Subcontractor or other person in connection with this
Agreement, the System or Work, the receiving Party shall obtain from such
persons a written nondisclosure agreement substantively equivalent to this
Article 15 to treat such information as confidential and not to disclose
or, except as permitted by this Article 15, use it without the receiving
Party's written consent.
15.3 Confidential Material furnished to a receiving Party in connection with
this Agreement (directly or indirectly), shall be protected by the
receiving Party from disclosure to others with reasonable efforts in that
regard, provided that the receiving Party shall have the right to grant
access to Confidential Material to employees, consultants or Subcontractors
as provided in Section 15.2.
15.4 Confidential Material: Each Party (a "receiving Party") will have access to
technical information and materials including but not limited to, drawings,
specifications, designs, records, computer programs and related
documentation that is marked "confidential" or with words of similar
meaning, which are owned by the other Party (the "disclosing Party") or by
third parties, and which constitute valuable confidential and proprietary
information, know-how and trade secrets belonging to the disclosing Party
or third parties (hereinafter referred to as "Confidential Material").
Confidential Material shall include information received from a disclosing
Party in connection with the RFP, this Agreement, or the performance of the
Work, information developed expressly for Purchaser under this Agreement,
and all Software and Documentation. Confidential Material shall not include
information or material that:
(a) is the public domain at the time of disclosure, or thereafter enters
the public domain through no fault of the receiving Party; or
(b) is in the rightful possession of the receiving Party (other than
possession arising in connection with this Agreement) at the time of
disclosure by the disclosing Party; or
(c) is later received by the receiving Party without confidentiality
restrictions, from a third party having the lawful right to disclose
it; or
16. PROPRIETARY RIGHTS AND LICENSES
It is the intention of the Parties that all intellectual property rights in
Software and Documentation, including but not limited to, all copyrights
and patent rights, shall remain with Supplier or its licensor(s). Such
Software and Documentation, if any, shall be licensed to Purchaser, under
the terms of the individual license agreements attached hereto as Annex C,
if any, which Purchaser agrees to execute, and, to the extent any of such
license agreements are not applicable, under the terms set forth in this
Article 16 ("Supplier's Software" or "Licensed Software" and "Supplier's
Documentation" or "Licensed Documentation"). Supplier shall use reasonable
commercial efforts to obtain license agreements from other third party
licensors, with respect to their respective parts of all Licensed Software
and Licensed Documentation that are substantially equivalent to the
provisions of this Article 16.
16.1 Software and Documentation License: Supplier hereby grants to
Purchaser (hereinafter the "Licensee") a personal,
non-exclusive, 99-year, non-transferable, paid-up, license to use
the Licensed Software and Licensed Documentation of the System
provided by Supplier under this Agreement and in conjunction with
the use of the System including, but not limited to, training,
operation, modification, and maintenance. Such license shall
include the right to use the Licensed Software and Licensed
Documentation by means of or in conjunction with known and future
technologies, including but not limited to known and future
platforms provided that Purchaser shall pay any required
royalties or license fees associated with the use of such future
technologies or platforms, and provided further that neither
Supplier nor its Subcontractors or licensors shall have any
obligation to support the Licensed Software or Licensed
Documentation on such future technologies or platforms. Such
License shall also apply to upgrades and replacements of the
Licensed software or Licensed Documentation obtained from
Supplier during the life of the System. Supplier may revoke such
license in the event Purchaser breaches its obligations under
this Agreement.
16.1.1 Supplier hereby also grants the following rights and
licenses: (i) a right of and license under the
provisions of the applicable license agreement or this
Article 16 to contractors and consultants of the
Licensee to use and reproduce the Licensed Software and
Licensed Documentation solely
in conjunction with or for the purpose of the performance of services for the
Licensee in connection with the System, subject to the execution by such
contractors and consultants of a written non-disclosure agreement substantively
equivalent to that provided in Article 15; and (ii) a right of and license under
the provisions of the applicable license agreement or this Article 16 to System
Users to use the machine executable code version of the Licensed Software and
Licensed Documentation in their use of the System for its specified purposes.
The contractors, consultants and System Users to whom the aforestated licenses
are granted shall also be referred to as "Authorized Users."
16.2 Right to Use: the Licensee shall have the right to develop peripheral
programs to meet present or future needs (including but not limited to
replicating a design to replace specific System components or implement
new sites or technologies, provided that the replication of such design
does not involve reverse engineering of Licensed Software), and to make
improvements, enhancements, upgrades, adaptations and derivative works
(all hereinafter referred to as "Developments"). The Licensee is hereby
authorized to make such Developments. Supplier shall not have any rights
to Developments, that (i) are not Derivative Works in or of the Licensed
Software or Licensed Documentation; and (ii) do not incorporate any
Licensed Software or Licensed Documentation; and (iii) do not contain
Supplier's proprietary logic, design or coherence. Neither the Licensee
nor Supplier shall have any obligation or liability to each other with
respect to such Developments, including any obligation of Supplier to
indemnify Purchaser for infringement under this Agreement with respect to
the Licensed Software or Licensed Documentation.
16.2.1 Supplier agrees that, subject to Section 15.4 and the foregoing
provisions of this Article 16, the Development made by or on
behalf of Licensee which meet the criteria set forth in Sections
16.2(i), (ii) and (iii) above, and all new Software,
Documentation, and materials, and all concepts, methods,
techniques, designs, processes and ideas, which originate or
result from the performance of this Agreement, and are developed
by the Licensee, its employees, agents or consultants which meet
the criteria set forth in Sections 16.2(i), (ii) and (iii) above
shall belong solely and exclusively to the Licensee, and the
Licensee shall
have sole and complete ownership rights including exclusive
copyright, patent, and all other intellectual property rights
in and to the same, and Supplier will not, other than in the
performance of this Agreement, make use of or disclose the
same to anyone. Licensee agrees that all other Developments
shall belong solely and exclusively to the Supplier or, as
the case may be, its Subcontractor, and that the Licensor or,
as the case may be, its Subcontractor shall have sole and
complete ownership rights including exclusive copyright,
patent, and all other intellectual property rights in and to
the same, subject to the provisions of this Article 16, and
Licensee will not, other than in performance of this
Agreement, make use of or disclose the same to anyone.
Software and Software Documentation which Supplier has
obtained from third parties and which is incorporated into
the Work Product are identified on Annex D hereto, which
Annex may be amended from time to time.
16.2.2 Purchaser agrees that all Developments, Software,
Documentation, material, deliverables, concepts, methods,
techniques and designs which are made, conceived or developed
by Supplier, its agents, employees, or subcontractors as part
of the Work or on behalf of Purchaser (herein also referred
to as "Work Product") shall belong solely and exclusively to
Supplier or its Subcontractors, and such parties shall have
sole and complete ownership rights, including exclusive
copyright and patent ownership and all other intellectual
property rights in and to the same, subject to the provisions
of this Article 16, and Purchaser will not, except in
accordance with the terms of this Agreement, make use of or
disclose the same to anyone.
16.3 Right to Copy the Licensed Software and Licensed Documentation: The
license granted herein shall entitle the Licensee and Authorized Users
(subject to the obligation to obtain executed non-disclosure
agreements) to make or cause to be made up to the number of licensed
copies of the Licensed Software and Licensed Documentation, and other
materials furnished under this Agreement, solely for the use of the
System by the Licensee and any Authorized Users, plus a reasonable
number of backup and
archival copies. Such copies may be made without further permission of
Supplier or the copyright owner and regardless of whether such Licensed
Software, Licensed Documentation or other materials are copyrighted or
otherwise proprietary. All such copies shall be subject to the terms of
this Agreement and the applicable license agreement.
16.4 Distribution Rights: The Licensee may distribute copies of the Licensed
Software, Licensed Documentation and other materials furnished under this
Agreement to Authorized Users (subject to the obligation to obtain executed
non-disclosure agreements) by such means or technologies as they may
choose, including without limitation physical media, electronic
transmission and telecommunications and known and future technologies. No
License is granted for resale, consulting use, rental or timesharing, reuse
or installation on other systems, nor, except as provided in this
Agreement, is a license granted for the right to sublicense, transfer or
assign the Licensed Software or the Licensed Documentation.
16.5 [Reserved]
16.6 [Reserved]
16.7 Improvements and Upgrades: Supplier shall provide to the Licensee, at
reasonable charges, and for at least a period of three (3) years after
warranty of the System, all Software improvements, new versions, additions,
updates, enhancements and error corrections to or of the Licensed Software
with the associated changes to the Licensed Documentation.
16.8 Right to Transfer: The Purchaser shall have the right to transfer to any
person, legal or natural, designated by the CPUC or the Trustee to succeed
to the rights and to perform the functions of Purchaser, all rights and
licenses granted to the Purchaser in this Article 16. Upon such transfer by
means of an assignment or novation of this Agreement, the transferee shall
be deemed to be a Licensee under the terms of this Article 16; provided,
such transfer shall not reduce, limit, or otherwise affect the rights of
Purchaser as Licensee under this Article 16, and the applicable license
agreement with respect to dates prior to the date of such transfer.
16.9 Reverse Engineering: Licensee shall not reverse engineer, decompile
or disassembly any of the Licensed Software provided to Purchaser
only in binary, object or machine executable form, including
Licensed Software provided by Supplier's licensors. Licensee shall
make all reasonable efforts to present any of its employees from
independently attempting any such prohibited activities.
16.10 Software Maintenance: Except as otherwise provided in this
Agreement, Licensee shall provide maintenance in accordance with the
terms of the maintenance agreements attached as Annex C.
17. SOURCE CODE
All Source Code for the Licensed Software set forth in Annex F shall be
delivered to Purchaser.
18. INSPECTION, TESTING AND ACCEPTANCE
18.1 Inspection: Purchaser shall have the right at all reasonable times
to inspect and witness testing of the System and its hardware and
Software components, and to verify milestone completion. Supplier
shall make all necessary arrangements and provide all reasonable
facilities and access for such inspection and witnessing, either at
Supplier's place of fabrication, manufacture or assembly, or at any
other place where any major assembly of the System is fabricated,
manufactured or assembled. Inspection by Purchaser shall not be
construed as constituting either a waiver of any rights of Purchaser
or obligations of the Supplier, or Acceptance. Supplier shall give
Purchaser a minimum of ten (10) calendar days prior notice as to the
time when the System or any major assembly thereof will be ready and
available for inspection.
18.2 Supplier Testing: Prior to start of Integrated System Tests (IST),
Supplier shall test the System using the Acceptance Test Procedure and
correct any material failure (including discrepancies, defects, and
malfunctions) to meet the test criteria (all such material failures
hereinafter referred to as "Defects, Malfunctions or
Nonconformities"). These tests shall not require the presence or
participation of Purchaser. Supplier shall provide Purchaser with
Documentation of the performance of the System during these tests.
18.3 Integrated System Tests:
18.3.1 Supplier shall have the System ready for Supplier and the
Authorized Representative to conduct the Integrated System Tests
by the date stated in the Work Schedule subject to the terms and
conditions of this Agreement which contemplate the possible
extension of such date. The Integrated System Test shall be
conducted using the Acceptance Test Procedure. All Defects,
Malfunctions or Nonconformities shall be logged for later
resolution or will be addressed immediately if testing can not
or, in Purchaser's reasonable judgment, should not, be performed
without the necessary corrections. Supplier shall make a
available for the Authorized Representative's conduct of the
testing the appropriate test equipment and facilities, and design
engineers for consultation as reasonably requested by the
Authorized Representative. The testing shall be conducted using
commonly acceptable methods and may include unstructured
operational testing.
18.3.2 Supplier shall maintain testing and performance Documentation in
compliance in all material respects with the requirements of the
Specification.
18.3.3 Upon completion of the Integrated System Tests, Purchaser shall
notify the Supplier in writing within five (5) business days of
authorization to ship the System or of the denial of such
authorization.
18.3.4 If the authorization to ship is denied, Purchaser shall state in
writing the reasons for the denial, and such reasons shall
consist of references to any tests set out in the Acceptance
Text Procedure. In the event of such a denial, the reasons given
by Purchaser shall immediately be discussed between the
Authorized Representative and Supplier, and Supplier shall, at
its sole expense, correct all Defects, Malfunctions or
Nonconformities. Upon such correction, Purchaser may perform
such tests set out in the Acceptance Test Procedure with which
the System did not comply in all material respects (as stated in
the notification from Purchaser) or which may have been affected
by corrective action of Supplier.
18.3.5 Upon receipt of written notice from the Authorized
Representative of
authorization to ship, Supplier shall proceed with shipment to
the System installation facility. Authorization to ship the
System shall not constitute Acceptance of the System and shall be
given without any prejudice to Purchaser's right to correction of
any Defects, Malfunctions or Nonconformities outstanding or
revealed by on-site Acceptance Test Procedures.
18.3.6 Defects, Malfunctions or Nonconformities in the System that are
not material and which the Authorized Representative deems not
sufficient to delay shipment, shall be listed on a completion
list prepared by the Authorized Representative. Supplier shall
complete or correct the items on the completion list in
accordance with a mutually acceptable work schedule.
18.4 Operational Dry Run:
18.4.1 Upon completion of shipment, Supplier shall uncrate, inspect,
and install the System, and prepare it for the Operational Dry
Run by the dates shown in the Work Schedule, subject to the
terms and conditions of this Agreement which contemplate the
possible extension of such date.
18.4.2 Purchaser shall conduct the Operational Dry Run using the
Acceptance Test Procedure with assistance from Supplier. Such
tests are acceptance tests developed by Supplier, and approved
by Purchaser, to verify that the System, after installation,
performs in material conformance with the Acceptance Test
Procedure.
18.4.3 Any material non-conformance indicated by such tests shall be
promptly corrected by Supplier at its sole expense and the
applicable portions of such tests shall be reperformed to
demonstrate performance in material compliance with the
applicable Acceptance Test. Supplier shall be allowed full time
access to the System to make such corrections. Minor
discrepancies with such tests which Purchaser in its sole
discretion deems not to be sufficient to delay Acceptance of the
System shall be listed on a completion list prepared by
Purchaser and shall be corrected by Supplier at Supplier's
expense in accordance with a mutually acceptable work schedule.
18.4.4 Right to System Requiring Correction: If, after the System or
any part thereof has been installed, the System, or the process
or the function performed thereby, requires material correction,
Purchaser shall
have the right to use the System until such time as it is convenient
to Purchaser to have the System or any part thereof removed from
service for correction; provided such use will not, in Supplier's
sole discretion, cause damage to the System or is otherwise likely
to make repairs more difficult or time-consuming or result in
liability to Supplier. Such use shall not constitute Acceptance, nor
shall it constitute a waiver of any of Purchaser's rights with
respect to the System.
18.5 Availability Test:
18.5.1 Upon the successful completion of the Operational Dry Run, the
System shall be proven by a continuous 2000-hour Availability Test.
The test shall consist of exercising the functions provided by the
System during normal day to day operation.
18.5.2 Purchaser shall maintain the test records during the Availability
Test. At the conclusion of the test, the test records shall be
examined to determine the System's conformance, in all material
respects, to the availability criteria defined in this Agreement.
18.6 Acceptance: Acceptance of the System ("Acceptance") shall not occur until
all of the following conditions have been met:
18.6.1 All tests required by this Agreement have been completed in
accordance with the terms and conditions herein; and
18.6.2 [Reserved];
18.6.3 All deliverables including instruction books, manuals, and all other
Documentation, have been received; and
18.6.4 Purchaser or Authorized Representative has notified Supplier in
writing of Acceptance; otherwise Acceptance shall be deemed to have
occurred 10 business days after the foregoing conditions have been
met.
The Work shall be deemed completed, accepted, and ready for final payment
when all of the aforestated conditions have been met. Such Acceptance shall
not constitute a waiver of any right of Purchaser under this Agreement.
Upon such Acceptance, Supplier shall invoice Purchaser for the final
payment and all outstanding retention.
18.7 Delay in Completion:
In the event that delivery of all equipment, software, Documentation, and
all other deliverables specified in this Agreement is not substantially
complete by the delivery date specified in the Work Schedule, or such later
date as may result from an equitable adjustment in the Work Schedule by
reason of suspensions of the Work, changes in the Work, or other excusable
delays, then the Purchaser shall have the right, as its exclusive remedy
for late delivery, to collect from Supplier as liquidated damages,
beginning the 31st day thereafter, the sum of $5,000 per day for each
additional day until delivery is substantially complete, but not more than
$300,000. The collections of such liquidated damages shall be in lieu of
any other claims or remedies available at law or in equity and shall be
Purchaser's exclusive remedy, and Supplier's sole liability, for late
delivery unless delivery is not substantially complete within 90 days of
the delivery date specified in the Work Schedule. In that event, Purchaser
shall have the right, in lieu of exercising its right to collect liquidated
damages as provided herein, to terminate the Agreement pursuant to the
provisions of Section 29.1 of this Agreement.
19. WARRANTIES
19.1 System: SUPPLIER EXPRESSLY WARRANTS THE SYSTEM AND THE WORK PERFORMED
HEREUNDER ONLY AS SET FORTH IN THIS
ARTICLE 19. SUPPLIER MAKES NO OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED,
INCLUDING THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
SUPPLIER'S SOLE OBLIGATION AND THE EXCLUSIVE REMEDIES OF PURCHASER FOR ANY
BREACH BY SUPPLIER OF ITS WARRANTIES SHALL BE AS EXPRESSLY STATED IN THIS
SECTION 19.
19.1.1 Supplier warrants that the System and all components thereof (including
but not limited to hardware and Software) furnished by Supplier, shall:
(i) be free from Defects, Malfunctions or Nonconformities and material
defects in workmanship and material; (ii) be new, not from the surplus
market, and of the kind and quality specified in the Specification; and
(iii) perform the functions described in the Specification in all
material respects in conformance with the Documentation for the period
described in Section 19.1.2.
19.1.2 The warranty period, during which all Defects, Malfunctions or
nonconformities and other failures to comply with Section 19.1.1 must be
discovered and reported to Supplier, shall commence upon the date the
2000-hour Availability Test commences and continue for one (1) year
thereafter. The warranty period, during which all Defects, Malfunctions
or Nonconformities and other failures to comply with Section 19.1.1 must
be
discovered and reported to Supplier, for any Defects, Malfunctions or
Nonconformities or other failures to comply with Section 19.1.1
corrected by Supplier shall begin upon delivery of the corrected item
and shall continue for ninety (90) days thereafter or until the end of
the original one (1) year warranty period, whichever occurs latest.
19.1.3 Any material Defect, Malfunction or Nonconformity or other failure to
comply with Section 19.1.1 that is discovered during the warranty period
and material damage to any other part of the System resulting from such
items and the revision or repair by Supplier thereof, shall be corrected
by Supplier, at Supplier's sole expense with due diligence and dispatch
as required to make the System conform to the warranties stated in this
Article 19, including, but not limited to, any necessary adjustments,
modifications, repair or replacement, changes to the Supplier's Software
and Supplier's Documentation, and including all necessary parts,
transportation charges and labor as may be necessary.
A. Supplier shall perform such corrective Work at the facility where
the System is installed to minimize the down time of the System.
Such Work shall be performed as follows: For any Defect, Malfunction
or nonconformity or other failure to comply with Section 19.1.1 that
prevents the proper use of the System, Supplier shall use reasonable
commercial efforts to provide corrective information within four (4)
hours after Purchase's problem call, and, if correction at the
Jobsite is required, shall dispatch personnel within twenty-four
(24) hours after Purchaser's problem call to perform such corrective
Work. For Defects, Malfunctions or Nonconformities and other
failures to comply with Section 19.1.1 that are not material,
including those Defects, Malfunctions or Nonconformities and other
failures to comply with Section 19.1.1 that do no affect the use of
operation of the System, Supplier may group the correction of such
Defects, Malfunctions or Nonconformities and other failures to
comply with Section 19.1.1 as agreed to by Purchaser.
19.2 Documentation: Supplier warrants that the Documentation shall be
substantially accurate and reasonably complete. Supplier shall, at
its sole expense, promptly correct any materially nonconforming
Documentation.
19.3 Third Party Equipment: In addition to the warranties set forth in
Section 19.1, Supplier shall use reasonably commercial efforts to
obtain warranties and support contracts from the computer and
peripheral equipment vendors which are materially compatible with
Supplier's obligations under this Article. Supplier shall assign, to
the extent permitted by the terms of such warranties and support
contracts with such vendors, such warranties and support contracts to
Purchaser, if requested to do so.
19.4 Replacement Parts: Supplier warrants that replacement parts of
components for the System that are provided by Supplier shall by
interchangeable in fit and function with the original System and free
from defects in materials and workmanship for a period of ninety days
from date of the installation of such replacement parts.
19.5 Work: All Work performed by Supplier pursuant to this Agreement shall
be performed in a workmanlike manner. In the event that Purchaser
notifies Supplier that any Work does not meet the warranty in this
Section 19.5 within 90 days after such Work is performed. Supplier
shall immediately correct and./or re-perform such Work. The
provisions of the warranty in this Section 19.5 shall not limit or
reduce any other warranties set forth in this Article 19 and shall be
in addition thereto.
19.6 Conditions of Warranties: The warranties set forth in this Article 19
are subject to the following conditions applicable to the item for
which a breach of warranty is claimed:
19.6.1 Purchaser shall give Supplier written notification (or
telephone notification followed up in writing) of any Defect
Malfunction or Nonconformity or other failure to comply with
Section 19.1.1 within a reasonable time after Purchaser
becomes aware of such Defect, Malfunction or Nonconformity or other
failure to comply with Section 19.1.1.
19.6.2 Purchaser shall have the right to continue to operate the System,
or any part thereof, which may require warranty correction or
repair until such time as Purchaser elects to remove such System or
part thereof from service; provided that Supplier shall have no
liability or obligation to Purchaser under this Agreement or
otherwise for any damage to the System or liabilities caused by
such continued operation.
19.6.3 Purchaser shall operate and maintain the System in accordance with
the operation and, if applicable, maintenance procedures agreed
upon by the Parties; provided and on condition that Supplier shall
furnish to Purchaser such operating and maintenance procedures
clearly stated in writing and properly identified.
19.6.4 Completion of payments by Purchaser shall not release Supplier
from any of its warranty obligation.
19.6.5 Supplier does not warrant that (a) the Work will meet Purchaser's
requirements, (b) the operation of any hardware or Software will be
uninterrupted or error free, or (c) any Defect, Malfunction or
Nonconformity in any hardware or Software is correctable or will be
corrected. The limited warranty provided in this Agreement will not
apply to, and Supplier will have no warranty obligation with
respect to, any Defect, Malfunction or Nonconformity resulting
from (1) improper site preparation or maintenance by or on behalf
of Purchaser, other than by Supplier or its Subcontractors, (2)
calibration, maintenance, modification or use by or on behalf of
Purchaser, other than by Supplier or its Subcontractors, (3)
operation of hardware outside of its published environmental
specifications, including any failure of electric power, air
conditioning or humidity controls, (4) hardware, software,
interfacing or supplies installed or supplied by Purchaser, any
subcontractor to Purchaser other than Supplier or its
Subcontractors or any other owner or operator, or (5) any cause
other than ordinary use. In addition, Supplier will have no
warranty obligation to adjust, repair or replace any component if
its adjustment, repair or replacement is impractical because of
its location or installation.
20. SUPPLIER'S SYSTEM SUPPORT
20.1 Supplier shall make available replacement parts, and hardware and
software support on System components for a period of three (3)
years from Acceptance. In the
event, however, that certain of these devices are not available
due to obsolescence and duplicates cannot be purchased at a
reasonable price in comparison with that of the original unit,
the Supplier may supply a device which has functionality and
responsiveness comparable to the obsolete device.
20.2 If, for administrative reasons, Purchaser orders replacement
parts for the System under a new purchase order instead of under
this Agreement, Supplier agrees to sell such replacement parts
under these general terms and conditions set forth in this
Agreement.
20.3 Supplier further agrees that, if Supplier or a Subcontractor
cannot or no longer fulfills its maintenance and spare part
obligations, Supplier shall use reasonable commercial efforts to
provide or secure for Purchaser the necessary maintenance
services and, on a form, fit, and function basis, the required
spare parts.
20.4 Supplier shall not unreasonably interfere with normal operation
of the facilities where the System is installed, or with the
equipment, or the work of any contractors or subcontractors on
the premises where the System is installed ("System Premises").
When Supplier anticipates unavoidable at least five (5) days in
advance whenever commercially possible. The Authorized
Representative shall determine, in advance, whether such
interference is unavoidable and shall, if required, establish
reasonable procedures under which the interference shall be
allowed. The Authorized Representative shall have final
determination of priorities in case of conflicts with operations
or work of others. Supplier shall not operate any of the PX's
equipment (other than the System) or control devices or those of
any other contractor or subcontractor to Purchaser on the System
Premises.
21. INFRINGEMENT PROTECTION
21.1 Royalties or other charges for any patent, trademark, copyright,
trade secret of other intellectual property or proprietary
information relating to the System or used in the performance of
this Agreement, shall be considered as included in the contract
price.
21.2 Supplier shall indemnify and save harmless Purchaser and its
successors, assignees and transferees (all herein referred to
individually as "Infringement Indemnitee" and collectively as
"Infringement Indemnitees") against any and all liabilities, judgments,
costs, expenses, and damages, which may be awarded against any of the
Infringement Indemnitees in any suit, action or proceeding brought
against any of the Infringement Indemnitees for infringement or alleged
infringement of any patent, trademark, copyright, trade secret or any
other intellectual property or proprietary right, or any royalty or
license agreement to which Supplier or any Subcontractor is a party, by
a court of competent jurisdiction, arising out of the use by the
Infringement Indemnitee(s) of any component of the System furnished by
Supplier, in the ordinary course of its use as provided in this
Agreement for the purposes hereunder intended or the exercise of any
rights granted under Article 16 hereof, provided, however, that
Supplier shall have not obligation to indemnify or save harmless any
Infringement Indemnitee with respect to any claim alleging that a
process or integrated system, including but not limited to the System,
having the characteristics or functionality described in the
Specifications or this Agreement infringes any patent, trademark,
copyright, trade secret or other intellectual property or proprietary
right, or any royalty or license agreement, and provided further,
however, that Supplier shall have no liability for any claim of
infringement (1) based on any modified version of any such Licensed
Software, Licensed Documentation, Work Product or Development developed
by, or on behalf of Purchaser other than by Supplier or its
Subcontractors; (2) based upon use in conjunction with another product
or service; (3) based upon Supplier's compliance with Purchaser's
specific instructions, and provided further, that upon notice of a
claim of infringement Purchaser shall immediately stop use of the
software, program, service, and/or other materials that are the subject
of the infringement claim. If any action, claim or suit for
infringement of any patent, trademark, copyright, trade secret or other
intellectual property or proprietary right, or royalty or license
agreement, be made or instituted against the Infringement Indemnitee(s)
as above specified on account of the use of the System, (or any
component thereof) or the exercise of the granted rights, Supplier
shall assume the defense of such action, claim or suit and all expenses
incident to the defense thereof; but it is expressly understood that in
assuming the defense of such claim(s) or suit(s) Supplier shall have
control thereof; provided that the Infringement Indemnitee(s) shall be
kept fully informed as to the progress thereof and have the right to
confer about and give advice and assistance regarding the same.
21.3 In the event that: (i) there is an adjudication that the System or any
component or its use constitutes an infringement described in Section
21.2; or (ii) the use of any such System or component is enjoined;
Supplier shall within thirty (30) days from the occurrence of any of
the aforestated events, at its option and expense either:
(a) Procure for Purchaser and the PX the right to continue using
the System;
(b) Replace the System or infringing components with
non-infringing ones providing functionality substantially
equal to that contracted for hereunder; or
(c) Modify them so that they become non-infringing while providing
functionality equal to that contracted for hereunder.
Supplier's obligations under Section 21.3 shall be in addition to those
under Section 21.2.
21.4 Purchaser shall indemnify and save harmless supplier, its
Subcontractors and their respective successors, assignees and
transferees (all herein referred to individually as "Infringement
Indemnitee" and collectively as "Infringement Indemnitees") against any
and all liabilities, judgments, costs, expenses, and damages, which may
be awarded against any of the Infringement Indemnitees in any suit,
action or proceeding brought against any of the Infringement
Indemnitees for infringement or alleged infringement of any patent,
trademark, copyright, trade secret or any other intellectual property
or proprietary right, or any royalty or license agreement to which
Purchaser or any Authorized User is a party, by a court of competent
jurisdiction, arising out of the use, manufacture or sale by the
Infringement Indemnitee(s) of the combination of components comprising
the System or having the characteristics or functionality described in
comprising the System or having the characteristics or functionality
described in the Specifications or this Agreement. If any such action,
claim or suit for infringement of any patent, trademark, copyright,
trade secret or other intellectual property or proprietary right, or
royalty or license agreement, be made or instituted against the
Infringement Indemnitee(s) as above specified on account of the use,
manufacture or sale of the system, (or any part thereof). Purchaser
shall assume the defense of such action, claim or suit and all expenses
incident to the defense thereof; but it is expressly understood that in
assuming the defense of such claim(s) or suit(s) Purchaser shall have
control thereof; provided that the Infringement Indemnitee(s) shall be
kept fully informed as to the progress thereof and have the right to
confer about and give advice and assistance regarding the same.
21.5 The indemnity obligations contained in Section 21.1 and 21.4 are
contingent upon the Infringement Indemnitee giving the indemnifying
party prompt written notice of any such claim full cooperation in the
defense of any such claim, and the right to defend against any such
claim with counsel of the indemnifying party's choosing and to settle
and/or compromise any such claims as the indemnifying party deems
appropriate, subject to the payment by the indemnifying party of any
settlement or compromise amount. Failure to do so will relieve the
indemnifying party of any obligation or liability pursuant to this
indemnification provision. The Infringement Indemnitee shall not incur,
nor shall the indemnifying party be liable for, any of the Infringement
Indemnitee's costs or
expenses related to any such claims, without the consent of the
indemnifying party. The Infringement Indemnitee shall have the right
to employ its own counsel for any such claim, but the fees and
expenses of such counsel shall be borne by the Infringement
Indemnitee.
22. FITNESS FOR DUTY
22.1 Supplier and its Subcontractor personnel on the Jobsite shall:
(a) report for Work in a manner fit to do their job;
(b) not be under the influence of or in possession of any alcoholic
beverages or of any controlled substance (except a controlled
substance as prescribed by a physician so long as the performance
or safety of the Work is not affected thereby); and
(c) not have been convicted of any serious criminal offense which may
have a material adverse impact on Purchaser.
22.2 Searches by Purchaser's authorized representatives may be made of
lockers, and storage areas on Purchaser-owned or leased property at
various times without prior announcement. Such facility inspections
may be conducted using detection dog teams to search Work areas, and
other common areas in order to detect evidence of unlawful drug use
or other Prohibited Items (pyrotechnics, explosives, firearms,
weapons, or facsimiles thereof, alcohol and illegal drugs).
Prohibited Items must not be brought onto or kept on such property.
22.3 Supplier shall advise its personnel of these requirements before they
enter on the Jobsite and shall immediately remove from the Jobsite
any person determined to be in violation of these requirements.
Supplier shall impose these requirements on its Subcontractors. The
aforestated requirements apply solely to Jobsites and shall not be
construed to reflect the employment or contractual relationships of
Supplier, its employees, agents or Subcontractors.
23. INDEMNITY
23.1 Supplier shall, at its own cost, defent, indemnify and hold harmless
Purchaser, Pacific Gas and Electric Company, San Diego Gas & Electric
Company and Southern California Edison Company, and their officers,
agents, employees, assignors, assignees, and successors in interest
("Indemnified Parties") from and against any and all liability,
damages, losses, claims, demands, actions, causes of action, costs
including attorney's fees and expenses, or any of them, directly
resulting from the death or physical injury
to any person or physical damage to or losses of any physical property
arising out of or in connection with Supplier's negligence or willful
misconduct.
23.2 [Reserved]
23.3 Any tools, supplies, equipment or other items loaned by Purchaser to
Supplier (except where Purchaser directs such use) shall be loaned solely
as a convenience to Supplier. Supplier agrees that such items are being
loaned "as is", and Purchaser make no representations as to the
condition, suitability for use, freedom from defect or otherwise in
relation to such items. Supplier shall, at its own cost, defend,
indemnify and hold harmless Purchaser, their officers, agents,
employees, assignors and assignee, and predecessors and successors in
interest from and against any and all liability, damages, losses, claims,
demands, actions, causes of action, costs including attorney's fees and
expenses, or any of them, resulting from the death or physical injury to
any person or physical damage to any physical property, arising directly
out of any negligence or willful misconduct by Supplier with respect to
any actual use by Supplier of any tools, supplies, equipment or other
items loaned by Purchaser and having defects or claimed to be defective.
23.4 The indemnities set forth in this Article 23 shall not be limited by the
insurance requirements set forth in Article 24.
23.5 Purchaser shall, at its own cost, defend, indemnify and hold harmless
Supplier, its Subcontractors, and their officers, agents employees,
assignors, assignees, and successors in interest ("Indemnified Parties")
from and against any and all liability, damages, losses, claims, demands,
actions, causes of action, costs including attorney's fees and expenses,
or any of them, resulting from the death or injury to any person or
damage to or losses of any property arising out of or in connection with
such person's negligence or willful misconduct.
23.6 Purchaser and the PX shall, at its own cost, defend, indemnify and hold
harmless Supplier, its Subcontractors, and their officers, agents,
employees, assignors, assignees, and successors in interest ("Indemnified
Parties") from and against any
and all liability, damages, losses, claims, demands, actions,
causes of action, costs including attorney's fees and
expenses, or any of them, arising out of or in connection with
the sale or marketing, the failure to sell or market, or
otherwise in connection with the commercial use of the System.
23.7 The indemnity obligations contained in this Article 23 are
contingent upon the Indemnified Parties giving the
indemnifying party prompt written notice of nay such claim,
full cooperation in the defense of any such claim, and the
right to defend against any such claim with counsel of the
indemnifying party's choosing and to settle and/or compromise
any such claims as the indemnifying party deems appropriate,
subject to the payment by the indemnifying party of any
settlement or compromise amount. Failure to do so will relieve
the indemnifying party of any obligation or liability pursuant
to this indemnification provision. The Indemnified Parties
shall not incur, nor shall the indemnifying party be liable
for, any of the Indemnified Parties' costs or expenses related
to any such claims, without the consent ot the indemnifying
party. The Indemnitee shall have the right to employ its own
counsel for any such claim, but the fees and expenses of such
counsel shall be borne by the Indemnified Parties.
24. INSURANCE
24.1 Supplier shall maintain for the Work, and shall require that
each Subcontractor performing any service at the Jobsite
(except material delivery only) (hereinafter referred to as
"Jobsite Subcontractor") maintain, at all times during the
Work and at its own expense, valid and collectible insurance
as required below. This insurance shall not affect Supplier's
liability under the indemnity provisions of Article 23, and
shall not be terminated, expire, nor be materially altered
without giving thirty (30) days' advance written notice to
Purchaser.
As evidence that policies do in fact provide the required
coverages and limits of insurance listed below and that such
coverages and limits are in full force and effect, Supplier
shall furnish to Purchaser certificates of insurance on forms
acceptable to Purchaser. Supplier shall require each Jobsite
Subcontractor to provide such certificates of insurance to
Supplier. Certificates shall be furnished and made available
upon receipt of this Agreement or subcontract BUT IN ANY EVENT
PRIOR TO START OF THE WORK.
Any other insurance carried by Purchaser, its officers,
agents, and employees which may be applicable shall be deemed
to be excess insurance and Supplier's insurance shall be
deemed primary for all purposes despite any conflicting
provision in Supplier's policies to the contrary to the extent
of Supplier's indemnity obligations under this Agreement.
(i) Worker's Compensation, with statutory limits, as
required by the state in which the Work is performed,
and Employer's Liability Insurance with
limits of not less than $1,000,000.
(ii) Commercial General Liability Insurance, written on an "occurrence"
basis, including owner's and contractor's protective,
products/completed operations, broad form property damage liability,
and contractual liability. Such insurance shall bear a combined single
limit per occurrence and annual aggregate of not less than $2,000,000,
exclusive of defense costs as respects products and completed
operations, and a combined single limit per occurrence and annual
aggregate of not less than $2,000,000, exclusive of defense costs and
respects all other coverages. Such insurance shall: (a) acknowledge
Purchaser, its officers, agents and employees as additional insureds as
regards Supplier's acts or omissions; (b) be primary for all purposes;
(c) contain standard cross-liability or severability of interest
provisions; and (d) contain no explosion, collapse, or under ground
exclusions to the extent of Supplier's indemnity obligations under this
Agreement.
If Supplier elects, with the concurrence of Purchaser, to use a "claims
made" form of Commercial General Liability Insurance, then the
following additional requirements shall apply: (a) The retroactive date
of the policy shall be at least one day prior to the commencement of
the Work; and (b) Coverage for the Work shall be maintained in effect
for a period of not less than two (w) years after completion of the
Work, or a Supplemental Extended Reporting Period of not less than two
(2) years after completion of the Work shall be included. These
requirements shall ensure that such insurance shall enable Purchaser to
recover for claims reported at any time commencing with the start of
Work and continuing to a date not less than two years following
completion of the Work.
(iii) [Reserved]
(iv) Automobile Bodily Injury and Property Damage Liability Insurance on an
"occurrence" form with a combined single limit per occurrence of not
less than $1,000,000. Such insurance shall cover liability arising out
of the use by Supplier and Subcontractors of owned, nonowned, and hired
automobiles in the performance of the Work. Such insurance shall
acknowledge Purchaser as an additional insured and be primary for all purposes.
24.2 Supplier shall report immediately to Purchaser and confirm in writing
any injury, loss, or damage incurred by Supplier or Jobsite
Subcontractors in connection with the Work, or its receipt or notice
of any claim by a third party, or of any occurrence that might give
rise to such claim.
24.3 If any of the required insurance coverages contain aggregate limits
applying to other operations of Supplier outside this Agreement and
such limits are diminished by any incident, occurrence, claim,
settlement or judgment against such insurance, Supplier shall take
immediate steps to restore such aggregate limits or shall provide
other insurance protection for such aggregate limits.
25. SAFETY NOTIFICATIONS
25.1 Supplier shall provide (obtain from its Subcontractors, etc.) a
Material Safety Data Sheet (MSDS) for each chemical product (e.g.,
lubricants, solvents, paints, cleaners, inhibitors, etc.) prior to its
use at the Jobsite and for any such product that may be contained in
any equipment furnished to Purchaser as a part of the Work.
Such MSDSs shall be maintained at the Jobsite, shall be subjected to
review by Purchaser, and shall be turned over to Purchaser upon
acceptance of the Work and prior to Contractor's leaving the Jobsite.
A revised MSDS shall also be obtained whenever the formulation or
evaluation of a product is changed.
All MSDSs shall comply with the Federal (29CFR1910.1200) and
California (8CAC5194) OSHA Hazard Communication Standards without
exception, and shall also include, but not be limited to the
following data. (If an item is not applicable, Contractor shall so
state.)
Date of MSDS(s) preparation.
Purchaser's Purchase Order number(s).
Supplier's and manufacturer's catalog number for the product and
its container size and type.
ALL MSDS'S shall be addressed to:
--------------------------------
(To be provided)
--------------------------------
--------------------------------
--------------------------------
--------------------------------
25.2 Container Labeling Requirements:
Prior to shipment, Supplier shall and shall require its Subcontractors
to, label all containers of hazardous materials, as defined by the
State of California's and the Federal Government's OSHA programs. Such
labels shall include, as a minimum:
(a) The specific chemical identity of the substance. If the product
is a mixture, list the components present in concentrations of
1% or more, or 0.1% or more if a carcinogen.
(b) The name and address of the manufacturer, importer or other
distributor.
(c) Warning statements of the substance's Flammability,
Corrosivity, Toxicity, Reactivity, Primary Routes of Bodily
Entry and Target Organs affected.
(d) Emergency and first aid procedures.
(e) The potential for fire and/or explosion.
(f) Any generally known precautions for safe use and handling of
the substance.
These labels shall be clearly legible and capable of withstanding
normal shipping and handling while maintaining legibility of ALL
information printed thereon.
Any container at the Jobsite without said label, or with illegible
information thereon, is subject to rejection and, at the sole
discretion of Purchaser, may be removed from the Jobsite and disposed
of at an approved dump site at Supplier's expense.
25.3 California's Toxic Enforcement Act Requirements:
Supplier is hereby warned that exposure to chemicals known to the
State of California to cause cancer, birth defects, or other
reproductive harm may occur at Purchaser's facilities. Upon request,
Purchaser shall make available to the
Supplier, and its employees, a Material Safety Date Sheet (MSDS) for
such chemical exposures at the Jobsite. Supplier shall inform its
Subcontractors of the above information.
From the time that Supplier enters Purchaser facilities or begins Work
until the time the Work is completed, Supplier shall, and shall require
its Subcontractors to, issue warnings to personnel on the Jobsite, the
public, and Purchasers personnel about exposure to chemicals known to
the State of California to cause cancer, birth defects, or other
reproductive harm. Supplier shall warn Purchaser of any exposure which
may continue after Supplier has completed the Work. Such warnings may
take the form of a Material Safety Data Sheet.
26. LIMITATION OF LIABILITY
Except in the case of a breach of Article 15, neither Purchaser,
Supplier nor any agent, employee, Subcontractor, supplier or licensor
of Purchaser or Supplier shall be liable for indirect, incidental,
special, or consequential damages, whether such damages arise in
contract, tort (including negligence) or otherwise, including, but not
limited to, lost profits, and, in the case of Purchaser, damages
arising out of commitments to Subcontractors, or personal service
contracts unless such contracts are expressly authorized in writing by
Purchaser.
Notwithstanding anything to the contrary in this Agreement, Supplier's
and its agents, employees', Subcontractors', suppliers', and licensors'
cumulative liability to Purchaser, regardless of whether such liability
is based on breach of contract, tort, strict liability, breach of
warranties, failure of essential purpose or otherwise, under this
Agreement or with respect to the Services shall be limited to the
amount actually paid by Purchaser to Supplier under this Agreement. In
addition, Purchaser's recourse with respect to any liability or
obligation of SUpplier hereunder shall be limited to the assets of
Supplier, and Supplier shall have no recourse against, and shall bring
no claim against, any member or employee or Supplier or any assets
thereof.
In no event shall Supplier, its agents, employees, subcontractors,
suppliers or licensors be liable for preexisting conditions, delays,
curtailment of plant operations, process failure, pollution or
environmental damage or fines levied by regulatory agencies as a result
of pollution, occupational disease or toxic torts, loss of revenue or
profit, loss of use, loss of power, damages suffered by Purchaser, any
Authorized User or the PX's customers for service interruptions, the
marketing or sale, or failure to market or sell, electricity, costs of
capital or costs of replacement power.
27. DISPUTES
27.1 Any dispute pertaining to this Agreement, other than a dispute
arising under Section 15 or Section 16, which cannot be
resolved between the Supplier's Representative and the
Authorized Representative shall be referred to Purchaser
and the Supplier for resolution. If the Parties cannot reach
an agreement within a reasonable period of time, the dispute
shall be resolved as provided in Section 27.2. Pending
resolution of a dispute, Supplier shall continue to perform
the Work to the extent not affected by the dispute as directed
by the Authorized Representative and Purchaser shall continue
to make payments for the undisputed items as set forth in this
Agreement.
27.2 The Parties shall attempt in good faith to resolve any dispute
arising out of or relating to this Agreement promptly by
negotiations between an officer of Purchaser or his or her
designated representative and an officer or executive of
similar authority of Supplier. Either Party may give the other
Party written notice of any dispute. Within twenty (20) days
after delivery of said notice, the executives shall meet at
mutually acceptable time and place, and thereafter as often as
they reasonably deem necessary to exchange information and to
attempt to resolve the dispute. If the matter has not been
resolved within thirty (30) days of the first meeting, the
dispute shall be submitted first to voluntary mediation, and
if mediation is not successful, then to binding arbitration,
in accordance with the dispute resolution procedures set forth
in Annex F hereto. Judgment on any arbitration award may be
entered in any court having proper jurisdiction.
Each Party is required to continue to perform its obligations
under this Agreement pending final resolution of any dispute
arising out of or relating to this Agreement to the extent
such obligations are not the subject of the dispute.
28. TERMINATION AT WILL
28.1 Purchaser may, at any time, terminate for convenience (a
"termination at will") of Purchaser this Agreement, the Work, or
any portion of the Work, by written notice to Supplier. Such notice
shall be confirmed by an Amendment.
28.2 Upon receipt of such notice of termination at will, Supplier shall
stop performance of the terminated Work and take action as directed
by Purchaser to carry out such termination.
28.3 In such event of termination at will, Purchaser shall pay to
Supplier: (i) the payments due for Work completed and costs
incurred by Supplier for work in progress including overhead and
reasonable profit on such amounts, prorated to
the effective date of termination; plus (ii) any reasonable
costs necessarily incurred in carrying out such termination
as directed by Purchaser; plus (iii) a termination fee of
$2,500,000. Supplier shall furnish reasonable supporting data
for any claims for items (i) and (iii) above.
28.4 Purchaser shall take possession of and title to any System
fabricated or materials procured, and any Software or
Documentation developed and shall receive a license (pursuant
to Article 16) or Annex C to any of Supplier's Software and
Supplier's Documentation which are fully paid for in the
termination payment.
28.5 The provisions of this Article 28 shall be Supplier's sole
remedy for termination at will of this Agreement or the Work
or any portion thereof.
28.6 Any termination under this Article 28 shall be without
prejudice to any other rights of either Party which may have
accrued prior to termination.
29. DEFAULTS AND CANCELLATION FOR CAUSE
29.1 If Supplier: (i) fails materially to perform any of its
material obligations under this Agreement and fails either
(A) to cure a material failure of performance within thirty
(30) calendar days from Purchaser's notice of such failure or
(B) in the event Supplier notifies Purchaser that such
failure cannot reasonably be cured within thirty (30)
calendar days and provides a schedule for curing such
failure, to proceed diligently to cure such failure in
accordance with such schedule; or (ii) fails to deliver the
System or components thereof on or before the delivery date
specified in the Work Schedule or if all of the conditions of
Acceptance have not been met on or before 91 days after the
delivery date specified in the Work Schedule, then Purchaser
may: (a) except as provided in Section 18.7, withhold payment
of any further moneys which may be due Supplier until the
default is cured, if another cure period is allowed by
Purchaser; and/or (b) declare Supplier to be in default of
this Agreement by notice to Supplier in writing; and
Purchaser shall in either case be entitled to cancel this
Agreement for cause, in whole or part. Any cancellation
pursuant to this Article 29 shall not be deemed a
"termination at will" within the meaning of Article 28.
29.2 In the event Purchaser cancels this Agreement for cause
pursuant to Section 29.1, Supplier shall stop the Work (or
the portion thereof canceled by
Purchaser) and return all related data provided by Purchaser to the extent not
needed to complete any uncancelled portions of the Work; and at Purchaser's
sole option Supplier shall either (a) deliver to Purchaser all portions of the
System, and, upon payment in full for all parts of the System which have been
completed and which do not constitute the default upon which termination is
based, grant an appropriate license to Purchaser in and to ALL intellectual
property rights in Software and Documentation developed under this Agreement,
and license the portion of the Suppliers Software and Supplier's Documentation
which has been paid for to date (such license not to contain rights of
Purchaser or obligations of Supplier in addition to, or different from, those
in Article 16), and in such event Purchaser shall have the right to have the
System completed by others and to use the Supplier's intellectual property for
that purpose (provided the party performing the Work in Supplier's place
executes a nondisclosure agreement); or (b) at any time, after the expiration
of the cure period and before such default has been fully cured by Supplier,
Purchaser may cancel such part of this Agreement which Purchaser has not yet
Accepted or cancel the delivery thereof without charge or obligation, by
providing written notice to Supplier. Cancellation of any uncompleted portion
of this Agreement shall become effective to the extent and on the date set
forth in Purchaser's written notice. Purchaser's right to cancel this Agreement
shall also include the right to cancel any and all deliveries not already made.
29.3 If Purchaser fails materially to perform any of its material
obligations under this Agreement and fails either (A) to cure a
material failure of performance within thirty (30) calendar days
from Supplier's notice of such failure, or (B) in the event
Purchaser notifies Supplier that such failure cannot reasonably be
cured within thirty (30) calendar days and provides a schedule for
curing such failure, to proceed diligently to cure such failure in
accordance with such schedule, then Supplier may: (a) cease Work
until the default is cured, if another cure period is allowed by
Supplier; and/or (b) declare Purchaser to be in default of this
Agreement by notice to Purchaser in writing; and Supplier shall in
either case be entitled to cancel this Agreement for cause, provided
that prior to cancelling this Agreement for cause, Supplier shall
invoke the provisions of Section 27 to attempt to resolve the matter
at issue.
30. NON-WAIVER
None of the provisions of this Agreement shall be considered waived by
either Party unless such waiver is specifically stated in writing, and
signed by the authorized representative of the Party waiving the
provision(s).
31. ASSIGNMENT
31.1 Subject to Section 31.4, neither party shall assign this Agreement
or any part thereof or interest therein, without the prior written
consent of the other party, and any assignment without such consent
shall be void and of no effect.
31.2 Supplier shall notify Purchaser of the sale or transfer of control
of its business to another entity prior thereto.
31.3 If either Party enters into any voluntary or involuntary
receivership, bankruptcy or insolvency proceedings, the other Party
shall have the right to cancel this Agreement under the default
provisions pursuant to Article 29.
31.4 Purchaser reserves the right to assign and delegate its entire
rights, obligations and interest, under this Agreement, or any
portion thereof, to any person, legal or natural, designated by the
CPUC or the Trustee to succeed to the rights and to perform the
functions of Purchaser. Such an assignment and/or delegation shall
become effective upon notice thereof to the Supplier.
31.5 Upon any valid assignment and delegation hereunder, the assignee shall
thereby assume all rights and obligations of the assignor and the
assignor shall be relieved of all obligations to supplier, including
those occurring before the assignment.
32. SEVERABILITY
Should any section, provision or portion of this Agreement be held to be
invalid, illegal or void, by a court of proper jurisdiction then and in such
event, any such section, provision or portion shall be deleted from this
Agreement and this Agreement shall be read as though such invalid, illegal
or void section, provision or portion was never included herein, and the
remainder of this Agreement shall nevertheless subsist and continue in force
and effect until such time as the remaining provisions shall be modified or
void, as agreed to by the parties.
33. NOTICES
Any notice, demand or request made pertaining to this Agreement shall be in
writing, shall include this Agreement number and the project name, and shall
be deemed properly given or made if delivered in person or sent by First
Class mail, postage prepaid, or certified mail to:]
Purchaser:
_______________________
_______________________
_______________________
_______________________
Telephone
Facsimile
Supplier:
_______________________
_______________________
_______________________
_______________________
Telephone
Facsimile
34. GOVERNING LAW
This Agreement shall be interpreted, governed and construed under the laws
of the State of California as if executed and to be performed wholly within
the State of California.
35. SECTION HEADINGS
Section headings appearing in this Agreement are for convenience only and
shall not be construed as interpretations of text.
36. SURVIVAL
Notwithstanding completion or termination of the Work or of this Agreement,
the Parties shall continue to be bound by the provisions of Sections 15, 16,
and 23, which are expressly stated to survive such completion or
termination.
37. CONFLICT OF INTEREST/BUSINESS ETHICS
37.1 No Existing Conflicts Of Interest: Supplier represents and warrants
that it has no existing business or other relationship, contract or
employment which could result in a material conflict with the interests
of purchaser or in any way materially compromise the Work to be
performed under this Agreement, and that it will perform the Work in
accordance with this Agreement without regard to any relationship or
obligation that Supplier or any Subcontractor may have with any third
party not a party hereto. Examples of such conflicts include, but are
not limited to, having any direct or indirect affiliation with, or
ownership interest in or by, any other party or the Trustee or any
member or member-representation of any advisory committee to or advisor
of the Trustee, provided, however, that such conflicts shal lnot
include any business or other relationship pursuant to which Supplier
is performing services for the Trustee or any member or
member-representation of any advisory committee to or advisor of the
Trustee in the ordinary course of Supplier's business.
37.2 Reasonable Care: Supplier shall exercise reasonable care and dilligence
to prevent any actions or conditions which could result in a conflict
of interests within the meaning of Section 37.1.
37.3 Other Employment: During the term of this Agreement, Supplier or its
employees will not accept any employment or engage in any work which
creates a material conflict of interest with Purchaser or in any way
materially compromises the Work to be performed under this Agreement
within the context of Supplier's or Purchaser's published policies and
rules on business ethics, a copy of which are attached hereto as Annex
G.
37.4 Gifts: Supplier, its employees, agents or Subcontractors shall not
offer or cause to be offered payments or loans, or gifts,
entertainment, services, benefits or considerations of more than a
nominal value to Purchaser, the Trustee or any
advisor or advisory committee to the Trustee, or to any of
their employees, families, vendors, or subcontractors.
37.5 Accurate Documentation: All financial information, reports,
billings, and other documents rendered shall properly reflect
the facts to the extent Supplier has knowledge thereof about
all activities and transactions handled for the account of
Purchaser.
37.6 Notification: Supplier shall immediately notify Purchaser of
any and all violations of this Article 37 upon becoming aware
of such violation.
37.7 Availability Of Information: Purchaser's duly authorized
representatives shall have, during the terms of this Agreement
and for three (3) years thereafter, access at all reasonable
times to all of the Supplier's and its Subcontractors'
personnel, accounts and records of all description, including
but not limited to computer files, pertaining to this
Agreement for the purpose of verifying amounts charged under
this Agreement.
The Supplier and its Subcontractors shall preserve all such
accounts and records for a period of three years after the
term of this Agreement. Purchaser's duly authorized
representatives shall have the right to reproduce any such
accounts and records.
37.8 Subcontractors: Supplier shall include the necessary
provisions in its Subcontracts to ensure that its
Subcontractors comply with this Article 37.
37.9 No Hire: During the term of this Agreement and for 12 months
thereafter, each Party agrees that no employee of it or any of
its Subcontractors who performs part of the Work will offer
employment with such Party or any of its subsidiaries to any
personnel of the other Party or its Subcontractors who provide
services related to this Agreement within the preceding 12
months without the prior consent of the other Party.
38. EQUAL OPPORTUNITY LAWS
38.1 Federal Regulations: During the performance of this Agreement
and to the extent they may be applicable to this Agreement,
the Supplier agrees to comply in all material respects with
all laws, orders, and regulations included by summary or
reference in the following Sections:
38.2 Equal Employment Opportunity - Executive Order No. 11246.41
CFR part 60-1: (Contracts of $10,000 or more) Provides that
Supplier will not discriminate against any employee or
applicant for employment because of race, color,
religion, sex, or national origin and further that Supplier shall take
affirmative action to ensure that applicant and employees are treated
without regard to their race, color, religion, sex, or national origin.
38.3 Certification or nonsegregated facilities -- 41 CFR 60-1.8: (Contracts
of $10,000 or more) Supplier hereby certifies that Supplier will not
maintain or provide segregated facilities for its employees and will
not permit its employees to perform their services at any location
under Supplier's control, where segregated facilities are maintained.
38.4 Construction Contractors -- Affirmative Action Requirements 41 CFR Part
60-4: (Contacts exceeding $10,000) Establishes procedures for
soliciting and awarding federal or federally assisted construction
contracts.
38.5 Listing of Employment Openings -- Executive Order 11701: (Contracts of
$10,000 or more) Supplier will list employment openings with the
Employment Development Department in accordance with the Vietnam Era
Veterans Readjustment Assistance Act of 1974 and Executive Order
11701. The affirmative action clause set forth in 41 CFR 60-250.4 is
incorporated herein by reference.
38.6 Employment of the Handicapped -- Rehabilitation Act of 1973. 41 CFR
Part 60-741: (Contracts of $2,500 or more) The affirmative action
clause and the regulations contained in 41 CFR 60-741.4, and Section
504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. Section
794), which prohibits discrimination on the basis of handicaps, are
incorporated by reference in this Agreement.
38.7 Filing Program Summaries and Preparing Affirmative Action Plans --
Executive Order 11246. 41 CFR Part 60-2: (Contracts of $50,000 or
more) If the value of this Agreement is $50,000 or more and the
Supplier has 50 or more employees, the Supplier agrees to file
appropriate action program summaries in accordance with existing
regulations and develop and maintain a current written affirmative
action compliance program at each of its establishments.
38.8 Vietnam Era Veterans Readjustment Assistance -- Act of 1974. Title 41.
Chapter 60. Part 250; (Contracts of $10,000 or more) The affirmative
action clause and the regulations pertaining to the employment of
disabled veterans and veterans of the Vietnam era are incorporated by
reference in this Agreement.
38.9 Americans With Disabilities Act -- 42 U.S.C. Section 12101, et seq.:
Supplier agrees that, to the extent it may be applicable to this
Agreement, Supplier shall comply with the Americans with Disabilities
Act.
38.10 Purchaser's Policy: It is Purchaser's policy that Women, Minority, and
Disabled Veteran Business Enterprises (WMDVBEs) shall have the maximum
practicable
opportunity to participate in providing the products and service
Purchaser purchases.
38.11 For all Purchaser contracts, the Supplier agrees to comply, and to
required all Subcontractors and sub-concontractors to comply, with
Purchaser's Equal Opportunity Purchasing Program (EOPP) policy, as
set forth in Exhibit 1 hereto. The Supplier shall provide to each
prospective Subcontractor a copy of Exhibit 1.
38.12 In addition, for contracts exceeding $500,000 (or $1 Million for
construction contracts), the Supplier must comply with the Policy
Regarding Utilization for Small Business Concerns and Small
Disadvantaged Business Concerns, as described in Exhibit 2 hereto.
The subcontracting Plan for these contacts must include provisions
for implementing the terms prescribed in Exhibit 2.
38.13 Small Business, and Small Disadvantaged Business Subcontracting Plans
are not required for small business contractors , personal service
contracts, contracts that will be performed entirely outside of the
United States and its territories, or modifications to existing
contracts which do not contain subcontracting potential.
38.14 For all Purchaser contracts, the Supplier shall act in accordance
with the Subcontracting Plan in the performance of the Work and in
the award of all subcontracts.
39. INJURY AND ILLNESS PREVENTION PROGRAM
In the performance of the Work under this Agreement, Supplier acknowledges
that it has an Injury and Illness Prevention Program which meets the
requirements of all applicable laws and regulations, including but not
limited to Section 6401.7 of the California Labor Code. Supplier shall
ensure that nay Subcontractor hired by Supplier to perform any portion of
the Work under this Agreement shall also have an effective Injury and
Illness Prevention Program. If the Supplier has nay employees in California,
even if those employees do not perform Work under this Agreement, the
attached Compliance Certificate (Exhibit 3) shall be executed by the person
with the authority and responsibility for implementing and administering
such Injury and Illness and Prevention Program.
40. ENTIRE AGREEMENT
This Agreement contains the entire agreement and understanding between the
Parties and merges and supersedes all prior representations and discussions
pertaining to the Agreement, including Supplier's proposal (except as
specifically included). Any changes, exceptions or different terms and
conditions proposed by Supplier, or contained in Supplier's acknowledgement
of this Agreement, are hereby rejected and shall have no force or effect
unless expressly stated in this Agreement or incorporated by an Amendment.
41. LICENSE AGREEMENTS
Purchaser agrees to execute and deliver to Supplier and to be bound by,
each of the license agreements attached hereto as Annex C.
42. THIRD PARTY BENEFICIARIES
The Parties agree that each of Perot Systems Corporation, Ernst & Young
LLP, and ABB Power T&D Company, Inc. will be a Subcontractor of
Supplier and each of such persons and each third party owner of
Licensed Software is intended to be a third party beneficiary of this
Agreement and that the rights of Supplier and the obligations of
Purchaser shall, with respect to any subcontracting or licensing
agreement entered into between Supplier and any such subcontractor or
between any such subcontractor and a third party owner of Licensed
Software with respect to this Agreement, inure to the benefit of that
subcontractor. The Parties agree that this Agreement is for the benefit
of the Parties hereto and the persons named above, and is not intended
to confer any rights or benefits on any other third party, including
any employee of either Party, and that there are no other third party
beneficiaries to this Agreement or any part or specific provision of
this Agreement.
43. EXECUTION
[Supplier's Name]
------------------------------------
Accepted By: Date:
------------------------ ------------------
[1stname] [lstname]
Title:
------------------------
PURCHASER:
Accepted By: Date:
------------------------ ------------------
[1stname] [lstname]
Title:
------------------------
Each of the undersigned persons, jointly and severally, hereby becomes surety
for and irrevocably and unconditionally guarantees to Supplier the full and
prompt payment by Purchaser of all amounts when due under Article 9. Supplier
shall not be required to proceed first against Purchaser, WEPEX or any other
person, firm or corporation, whether primarily or secondarily liable, before
resorting to such persons for payment.
Power Exchange:
Accepted By: Date:
------------------------ ------------------
[1stname] [lstname]
Title:
--------------------------------------
SOUTHERN CALIFORNIA EDISON:
Accepted By: Date:
------------------------------------- -------------------
[1stname] [lstname]
Title:
--------------------------------------
PACIFIC GAS & ELECTRIC COMPANY:
Accepted By: Date:
------------------------------------- -------------------
[1stname] [lstname]
Title:
--------------------------------------
SAN DIEGO GAS & ELECTRIC COMPANY:
Accepted By: Date:
------------------------------------- -------------------
[1stname] [lstname]
Title:
--------------------------------------
ANNEX A
Specification
[To be Provided]
ANNEX B
Price
[See Commercial Proposal]
ANNEX C
License and Software Maintenance Agreements
(Sample ABB Agreement Included; Others to be Provided)
ABB POWER T&D COMPANY INC.
Maintenance Agreement
Description, Price and Terms for Maintenance Support Services
1. Scope of Service
ABB Power T&D Company Inc. B Systems Control (ABB SC) will provide
maintenance service for the software supplied by ABB SC to [Customer
Name] ("Client"). These services provide the Client with the support
to maintain and upgrade the software/system with the latest applicable
versions available from ABB SC. The license to use the latest
applicable version of the software (the Program) will be made
available to the Client under this Agreement. Terms and conditions
regarding the use of the original License Agreement, including
non-disclosure, for the Program remain applicable.
Maintenance services are composed of two parts: Basic System Support
and Consulting/Implementation Services. ABB SC offers the Client a
choice between four service grades that provide various combinations
of basic support and consulting services. The Client can select the
service grade that best suits their needs and requirements. Basic
System Support is described in Section 1.1. A description of the
services provided under the Consulting/Implementation part is included
in Section 1.2.
1.1 Basic System Support
Basic System Support service will guarantee the Client the ready
availability of ABB SC's technical staff and computer facilities to
respond to Client requests for Casual Consulting Services, Program
Fixes, Program Upgrade Notification and Program Upgrades. A complete
up-to-date knowledge of the Client's software versions and
configuration will be maintained in order to provide an adequate
service response. The Basic System Support Service include the
following:
- Casual Consulting Service
Casual Consulting Service includes Licenser's interpretation of user
documentation or guidance on the Program's intended, normal use via
telephone or facsimile. The following items, among others, are
specifically excluded from Casual Consulting:
- Interpretation of the Program's results.
- Supply of typical or representative data.
- Assistance with computer hardware and peripheral
questions not related to the Program's use.
- with computer operating system questions not
directly pertinent to the Program.
- Data debugging and/or correcting
- Services necessitated as a result of any cause other
than the Program's ordinary, proper use by Licensee,
including but not limited to neglect, abuse,
unauthorized maintenance, or electrical, fire,
water, or other damage.
- Special applications of the Program.
The foregoing items and all others not within Casual Consulting scope may be
provided under Consulting/Implementation Services and are subject to additional
charges by Licenser.
ABB SC experience in field support has shown that most of the problems that
appear in the system are a consequence of a misinterpretation of operating
procedures or system documentation or to the lack of specific knowledge of a
particular system feature. A high percentage of these problems are efficiently
resolved by means of telephone consultations with the appropriate technical
contact. ABB SC will maintain a short response time for incoming trouble calls.
Trouble Calls made during off-hours will be forwarded by an answering service
to the appropriate technical staff.
- - Program Fixes
All ABB SC software undergoes extensive tests in factory and at the
installation site. This minimizes the possibility of the existence of problems
in the software. However, if such problems are encountered and reported, they
will be investigated and fixed at ABB SC. These minor corrections will be made
available by ABB SC to clients covered under maintenance support.
- - Program Upgrade Notification
Versions of the different software functions provided with the ABB SC system
are continuously improved and extended. This service provides the Client with
timely notification of the changed/upgraded features and the associated
descriptive information which could apply to Client system. ABB SC will notify
the Client of two types of updates:
a) Upgrades refer to releases containing improvement, fine tuning and minor
extensions of functions using the same technology which the Client has
purchased.
b) Enhancements refer to releases considered as new modules or new products
which may involve the application or use of new technology or algorithms to
known functions.
- - Program Upgrades
New versions of or additions to the Program developed by Licenser in an effort
to improve the Program's operating performance without changing its basic
function are provided under basic system support. Program Upgrades include
modifying the Program to run on improved or enhanced versions of the reference
computer or operating system as well as altering the Program's capacity,
function, execution time, application, input/output, or ease of use.
1.2 Consulting/Implementation Services
The Consulting/Implementation Services provide for support over and above those
described in Section 1.1 as Casual Consulting and comprise the following
services:
- - General Consulting Services
System functionality requires change and expansion with time. ABB SC system is
very flexible for adding and modifying functionality. This service will provide
the Client with a detail analysis of how a required improvement may be best
implemented in the system.
- - Programming Services
As a result of the Consulting Services the Client may decide to hire
ABB SC for the implementation of the required changes. Depending of the
nature of the change, ABB SC can provide this service on either a time
and material or a fixed cost basis.
- Upgrade/Enhancement Implementation
As a result of an upgrade notification, the Client may decide to hire
ABB SC for the implementation of the required change. Depending on the
nature of the upgrade, ABB SC can provide this service on either a time
and material or a fixed cost basis.
- Operating System Upgrades
ABB SC supports operating system upgrades services to the Client which
cover both the main operating system and layered products upgrade as
well as any modifications to ABB SC software which may be necessary as
a consequence of the operating system upgrade.
- Configuration Engineering/Consulting
During the life of the system, it is normal to extend the initial
system configuration by adding or replacing processors, peripherals,
memory, etc. ABB SC provides consulting services to determine:
a) Best equipment choice for the desired additional
capacity/functionality.
b) Effect if any, on ABB SC system software
configuration.
c) Required ABB SC additional software modules if any.
2. Staff
ABB SC shall supply the services of professional staff required to
carry out the tasks requested by the Client.
ABB SC will designate primary and secondary contacts for the Client for
maintenance and support.
The Client will designate a qualified maintenance contact who will act
as Client's liaison with ABB SC on all matters pertaining to
maintenance and support.
3. Service Procedure
The Client will report a service request by telephone followed by a
confirming detailed written report or description of the task along
with supporting material requested by ABB SC's primary contact,
necessary for investigating the problem.
ABB SC will allocate the staff and computer resources required to
respond to the service request. Client agrees to provide the necessary
assistance and information to assist ABB SC in providing the required
service.
4. Scope of Support
ABB SC offers four service grades, designated Platinum, Gold, Silver,
and Bronze. The following describes the support and services provided
with each service grade.
4.1 Platinum Service Grade
ABB SC provides 300 hours of pre-allocated support hours to clients
with Platinum service grade that can be used for:
- Casual Consulting Service.
- Program Fixes.
- Program Upgrade Notification.
- Program Upgrades.
- General Consulting Services.
- Programming Services.
- Upgrade and Enhancement Implementation.
- Operating System Upgrades.
- Configuration engineering and Consulting.
- Four (4) hour response time to trouble calls.
In addition, the following services and benefits are provided:
- Client's software will be maintained on a Field Machine at ABB
SC.
- Priority access to technical staff.
- Thirty (30) day trial use of new ABB SC software products.
- Fifteen (15) percent discount on new ABB SC product license
fees.
All services provided beyond the pre-allocated support hours will be offered on
a time and material or fix price basis
The source code for Program Upgrades will be provided free of charge to clients
with the Platinum service grade. Program Enhancements are offered to clients at
an additional charge.
Platinum service requires a dial-up or data link connection between ABB SC
support site and the Client site.
4.2 GOLD SERVICE GRADE
ABB SC provides 200 hours of pre-allocated support hours to clients with gold
service grade that can be used for:
- Casual Consulting Service.
- Program Fixes.
- Program Upgrade Notification.
- Program Upgrades.
- General Consulting Services.
- Programming Services.
- Upgrade and Enhancement Implementation.
- Operating system Upgrades.
- Configuration engineering and consulting.
- Four (4) hour response time to trouble calls.
In addition, the following services and benefits are provided:
- Thirty (30) day trial use of new ABB SC software products.
- Ten (10) percent discount on new ABB SC product license fees.
All services provided beyond the pre-allocated support hours will be offered on
a time and material or fix price basis.
The source code for Program Upgrades will be provided free of charge to clients
with the Gold service grade. Program Enhancements are offered to clients at an
additional charge. Gold service requires a dial-up or data link connection
between ABB SC support site and the Client site.
4.3 SILVER SERVICE GRADE
ABB SC provides 100 hours of pre-allocated support hours to clients with Silver
service grade that can be used for:
- Casual Consulting Service.
- Program Fixes.
- Program Upgrade Notification
- Program Upgrades.
- General Consulting Services.
- Programming Services.
- Upgrade and Enhancement Implementation
- Operating System Upgrades
- Configuration Engineering and Consulting.
- Four (4) hour response time to trouble calls.
In addition, the following services and benefits are provided.
- Five (5) percent discount on new ABB SC product license fees
All services provided beyond the pre-allocated support hours will be
offered on a time and material or fix price basis.
The source code for Program Upgrades will be provided free of charge to
clients with the Silver service grade. Program Enhancements are offered to
clients at an additional charge. Silver service requires a dial-up or data
link connection between ABB SC support site and the Client site.
4.4 Bronze Service Grade
As part of the Bronze service grade, ABB SC provides the following
services:
- Program Fixes.
- Program Upgrade Notification.
- Eight (8) hour response time to trouble calls.
All services will be offered on a time and material or fix price basis.
The source code for Program Upgrades and Enhancements are offered to
clients with the Bronze service grade at an additional charge.
Bronze service requires a dial-up or data link connection between ABB SC
support site and the Client site.
5. Prices and Terms
The following describes the fees and terms associated with the various
service grades.
5.1 Price
The annual fees for the standard service grades are as listed in the
current ABB SC Standard Maintenance Support Fees.
These fees do not include any expenses associated with travel to the
Client's site or work beyond the number of hours specified or provided for.
The fees are updated annually to factor in escalators including but not
limited to: (a) the Consumer Price Index for Urban Areas (CPI-U) as
published by the U.S. Department of Labor, Bureau of Labor Statistics; (b)
the support fees for embedded third party software; (c) development
recovery rate.
The fee for services beyond the specified or provided hours are determined
based on the current ABB SC Standard Labor Rates.
5.2 Term of Maintenance Service Maintenance service is provided for
periods of twelve (12) calendar months.
5.3 Terms of Payment The Client agrees to pay ABB SC the fees stated
herein before start of each maintenance service period by wire-transfer.
All fees are expressed exclusive of any taxes. Any applicable taxes will be
paid by the Client.
5.4 Expenses
All actual and verifiable travel and subsistence expenses, in excess of
described above, when visiting Client premises, and the cost of shipping
materials to the Client's premises will be paid by the client. The excess
travel expenses will be based on travel from the home base location of the
relevant staff. A 20% processing fee will be added to all the travel and
living expenses.
6. Liability
The maximum liability of ABB SC for any direct damages sustained by the
Client under this Agreement arising from ABB SC's negligence shall in no
circumstance exceed the amount of the annual maintenance fee for Basic
System Support payable by the Client to ABB SC. The Client and ABB SC
shall in no event be liable one to the other for loss of revenue, profit,
anticipated profit or indirect, incidental, special or consequential
damages, including but not limited to, any losses to Client resulting from
lost computer time or the destruction or damage of records, or any claims
or demands made against the Client by a third party. ABB SC shall maintain
public liability and property damage insurance in reasonable limits and
shall maintain proper worker's compensation insurance covering all
employees performing work under this Agreement and, upon request by
Client, shall furnish Certificates of Insurance evidencing such coverage.
EXCEPT AS PROVIDED HEREIN ABB SC MAKES NO REPRESENTATIONS OR WARRANTIES UNDER
THIS AGREEMENT WHATSOEVER
ANNEX D
THIRD PARTY SOFTWARE
(To be Provided)
ANNEX E
SOURCE CODE
(To be Provided)
ANNEX F
DISPUTE RESOLUTION PROCEDURES
The following procedures shall be used to resolve any controversy or clam
("dispute") as provided in this Agreement. If any of these provisions are
determined to be invalid or unenforceable, the remaining provisions shall remain
in effect and binding on the parties to the fullest extent permitted by law.
Mediation
A dispute shall be submitted to mediation by written notice to the other party
or parties. In the mediation process, the parties will try to resolve their
differences voluntarily with the aid of an impartial mediator, who will attempt
to facilitate negotiations. The mediator will be selected by agreement of the
parties. If the parties cannot agree on a mediator, a mediator will be
designated by the American Arbitration Association ("AAA") or JAMS/Endispute at
the request of a party. Any mediator so designated must be acceptable to all
parties.
The mediation will be conducted as specified by the mediator and agreed upon by
the parties. The parties agree to discuss their differences in good faith and to
attempt, with the assistance of the mediator, to reach an amicable resolution of
the dispute.
The mediation will be treated as a settlement discussion and therefore will be
confidential. The mediator may not testify for either party in any later
proceeding relating to the dispute. No recording or transcript shall be made of
the mediation proceedings.
Each party will bear its own costs in the mediation. The fees and expenses of
the mediator will be shared equally by the parties.
Arbitration
If a dispute has not been resolved within 90 days after the written notice
beginning the mediation process (or a longer period, if the parties agree to
extend the mediation), the mediation shall terminate and the dispute will be
settled by arbitration. The arbitration will be conducted in accordance with the
procedures in this document and the Arbitration Rules for Commercial Disputes of
the AAA ("AAA Rules"). In the event of a conflict, the provisions of this
document will control.
The arbitration will be conducted before a panel of three arbitrators,
regardless of the size of the dispute, to be selected as provided in the AAA
Rules. Any issue concerning the extent to which any dispute is subject to
arbitration, or concerning the applicability, interpretation, or enforceability
of these procedures, including any contention that all or part of these
procedures are invalid or unenforceable, shall be governed by the Federal
Arbitration Act and resolved by the arbitrators. No potential arbitrator may
serve on the panel unless he or she has agreed in writing to abide and be bound
by these procedures.
Unless provided otherwise in the Agreement, the arbitrators may not award
non-monetary or equitable relief of any sort. They shall have no power to award
(i) damages inconsistent with the Agreement or (ii) punitive damages or any
other damages not measured by the prevailing party's actual damages, and the
parties expressly waive their right to obtain such damages in arbitration or in
any other forum. In no event, even if any other portion of these provisions i
held to be invalid or unenforceable, shall the arbitrators have power to make an
award or impose a remedy that could not be made or imposed by a court deciding
the matter in the same jurisdiction.
No discovery will be permitted in connection with the arbitration unless it is
expressly authorized by the arbitration panel upon a showing of substantial need
by the party seeking discovery.
All aspects of the arbitration shall be treated as confidential. Neither the
parties nor the arbitrators may disclose the existence, content or results of
the arbitration, except as necessary to comply with legal or regulatory
requirements. Before making any such disclosure, a party shall give written
notice to all other parties and shall afford such parties a reasonable
opportunity to protect their interests.
The result of the arbitration will be binding on the parties, and judgment on
the arbitrators' award may be entered in any court having jurisdiction.
ANNEX G
Purchaser's Published Policies and Rules on Business Ethics
(Exhibits to follow)
EXHIBIT 2
POLICY REGARDING UTILIZATION OF SMALL BUSINESS CONCERNS AND SMALL
DISADVANTAGED BUSINESS CONCERNS
The following policy of the United States shall be adhered to in the performance
of this Agreement:
a) It is the policy of the United States that small business concerns
and small business concerns owned and controlled by socially and
economically disadvantaged individuals shall have the maximum
practicable opportunity to participate in performing contracts led by
any Federal Agency, including contracts and subcontracts to
subsystems, assemblies, components, and related services for major
systems. It is further the policy of the United States that prime
contractors establish procedures to ensure the timely payment of
amounts due pursuant to the terms of their subcontracts with small
business concerns and small business concerns owned and controlled by
socially and economically disadvantaged individuals.
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 in 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 (1) which is at least 51 percent unconditionally owned by one
or more socially and economically disadvantaged individuals; or, in
the case of any publicly owned business, at least 51 percent of the
stock of which is unconditionally owned by one or more socially and
economically disadvantaged individuals; and (2) whose management and
daily business operations are controlled by one or more of such
individuals. This term also means a small business concern that is at
least 51 percent unconditionally owned by an economically
disadvantaged Indian tribe or Native Hawaiian Organization, or a
publicly owned business having at least 51 percent 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 requirement of 13 CFR Part 124. Supplier shall presume that
socially and economically disadvantaged individuals include 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 Tribe and Native Hawaiian Organizations.
d) Supplier acting in good faith may rely on written representations by
its subcontractors regarding their status as either a small business
concern or a small business concern owned and controlled by socially
and economically disadvantaged individuals.(2)
- -------
(2) Notwithstanding this provision of the federal statute, all WMDVBE
subcontractors must be verified pursuant to the procedures prescribed
in Section 2 of CPUC General Order 156, as such procedures may be
amended periodically.
EXHIBIT 3
INJURY AND ILLNESS PREVENTION PROGRAM
COMPLIANCE CERTIFICATE
The undersigned, the _____________________________ of ________________________
(title/position) (name of Supplier)
(Supplier), here certifies to Purchaser as follows:
1. That supplier has an effective Injury and Illness Prevention Program
which meets the requirements of all applicable laws and regulations,
including but not limited to Section 6401.7 of the California Labor
Code and that any Subcontractor hired by Supplier to perform any
portion of the Work under this Agreement has an effective Injury and
Illness Prevention Program; and
2. That he or she is the person with the authority and responsibility
for implementing and administering Supplier's Injury and Illness
Prevention Program.
IN WITNESS WHEREOF, the undersigned has executed this Compliance Certificate on
________________________.
------------------------------------
Signature
------------------------------------
Print Name
EXHIBIT 1
PURCHASER EQUAL OPPORTUNITY PURCHASING POLICY
SUPPLIERS AND SUBCONTRACTORS OF ALL TIERS MUST COMPLY WITH PURCHASER'S EQUAL
OPPORTUNITY PURCHASING POLICY IN THE AWARD OF ALL SUBCONTRACTORS AND
SUB-SUBCONTRACTS. This policy requires that Women, Minority and Disabled
Veteran Business Enterprises (WMDVBEs) shall have maximum practicable
opportunity to participate in the performance of the Work.(1)
Supplier shall provide, along with Supplier's proposal, a separate, signed
Subcontracting Plan consisting of either: (i) a specific list of subcontractors
and sub-subcontractors who will participate in the performance of the Work, on
the form attached as Exhibit 1-A; or (ii) a statement setting forth the
Supplier's goals for WMDVBE subcontracting of all tiers and setting forth such
additional good faith efforts Supplier, subcontractors and sub-subcontractors
will employ to increase the participation of WMDVBE in the performance of the
Work.
In the case where Supplier has not submitted a specific list of subcontractors
and sub-subcontractors with Supplier's proposal, prior to requesting bids for
any subcontract or sub-subcontract, Supplier, subcontractor and
sub-subcontractor shall submit to Purchaser a list of prospective WMDVBEs that
will be invited to complete for such subcontracts on the form attached as
Exhibit 1-A.
Additionally, with each invoice submitted for payment, Supplier, subcontractors,
and sub-subcontractors shall submit an updated List of
Subcontractors/Subsuppliers and Disbursement Record with a current accounting
of actual subcontractor payments as of the date of the application (Exhibit
1-A, column 6)
- ----------
(1) WMDVBEs must be verified pursuant to the procedures prescribed in Section 2
of CPUC General Order 156.
Page 1 of 4
EXHIBIT 1-A
List of Subcontractors/Subsuppliers and Disbursement Record 01-5873A (Rev. 1/94)
FOR STANDARD CONTRACTS MATERIALS AND FLEET
- ------------------------------------------------------------------------------------------------------------------------------------
PURCHASER USE
NAME OF PRIME CONTRACTOR: DATE:
Prime Contractor
Purchaser CONTRACT NUMBER: NAME OF PREPARER: Vendor No.:
Purchaser PROJECT REGION/G.O. DEPARTMENT: -------------------
RC No.:
-
--- --- --- ---
====================================================================================================================================
ESTIMATED AMOUNT TO ?????
NAME OF ETHNIC GENDER** DISABLED DESCRIPTION BE PAID TO ?????
SUBCONTRACTOR(1) CLASS*(2) (2) VETERAN(2) ADDRESS(3) OF WORK(4) SUBCONTRACTORS(5) ?????
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
TOTAL AMOUNT PAID TO
SUBCONTRACTOR(S)
---------------------------------------
** REFER TO INSTRUCTION/DEFINITION SHEET ON BACK
STEP-BY-STEP INSTRUCTIONS
01-5873A (rev. 1/94)
Materials and Fleet
1. Complete column numbers 1-5 and return this form with your bid proposal.
2. Please attach copies of documents or list of all known minority sources used to identify minority and women owned business
enterprise subcontractors.
3. Complete column number 6 and send a copy of this form to Purchaser's personnel listed on the bottom of the form with each
application for payment and upon completion of the Agreement.
====================================================================================================================================
DEFINITIONS AND CODES
WBE-Women Business Enterprises: A business enterprise that is at least 51 percent owned by a woman or women; or, in the case of
any publicly-owned business, at least 51 percent of the stock of which is unconditionally owned by one or more women; and
whose management and daily business operations are controlled by one or more of those individuals.
MBE-Minority Business Enterprise: A business enterprise that is at least 51 percent owned by a minority group or groups; or, in
the case of any publicly owned business, at least 51 percent of the stock of which is unconditionally owned by one or more minority-
group individuals; and whose management and daily business operations are controlled by one or more of those individuals.
- ------------------------------------------------------------------------------------------------------------------------------------
ETHNIC CLASSIFICATION* GENDER**
0 = Caucasian 0 Male
1 = African American
W Female
2 = Asian
3 = American Indian/Alaska Native
4 = Hispanic
5 = Polynesians
6 = Filipinos
DVBE = Service Disabled Veteran Business Enterprises
SBE = Small Business Enterprises
American Indian/ People having origins in any of the original people of North America and who maintain
Alaska Native cultural identification through tribal affiliation or community recognition.
Asian People of Chinese, Japanese, Korean, Okinawan, Thailand, Vietnamese or Southeast Asian
origin, Laos, Taiwan, India, Pakistan, Bangladesh or Middle Eastern descent.
African American People having origins in any of the Black racial groups of Africa (not of Hispanic origin).
Page 3 of 4
Filipino People having origins in the peoples of the Philippine Islands.
Hispanic People of Mexican, Puerto Rican, Cuban, Central or South American descent, Caribbean and
other Spanish culture. (Does not include white female married to Spanish surname male.)
Polynesian People of Hawaiian, Samoan, Tongan, Tahitian, Gilbertine, Fijan, Northern Marianas and
Guamanian descent.
Caucasian/White Includes all people of European and North African descent.
Small Business A business defined pursuant to Section 3 of the Small Business Act (SBA) and relevant
(SBE) regulations pursuant thereto. If unsure, please contact your local Small Business
Administration office for clarification.
Service Disabled Has the same meaning as defined in subdivision (g) of the Military and Veterans Code and
Veterans (DVBE) must meet the "Control" and "Operate" criteria. An enterprise which is 51 percent owned or
the stock is 51 percent owned by one or more "disabled veterans."
Page 4 of 4
GENERAL TERMS AND CONDITIONS
Table of Contents
Section Page
1. AGREEMENT............................................................ 1
2. DEFINITIONS.......................................................... 1
3. TOTAL AUTHORIZED AMOUNT AND EFFECTIVE PERIOD......................... 4
4. PRIORITY OF DOCUMENTS................................................ 5
5. SCOPE OF WORK........................................................ 5
6. WORK SCHEDULE........................................................ 5
7. RISK OF LOSS......................................................... 7
8. TITLE................................................................ 7
9. COMMERCIAL TERMS..................................................... 8
Invoices........................................................ 8
Payment......................................................... 8
Taxes........................................................... 9
Payment for Field Technical Services............................ 9
Claims.......................................................... 10
10. CHANGES.............................................................. 10
11. PROJECT MANAGEMENT................................................... 11
12. CODES AND STATUTES................................................... 12
13. SUBCONTRACTORS....................................................... 13
14. SUSPENSION........................................................... 13
15. PROPRIETARY INFORMATION AND MATERIAL................................. 14
PROPRIETARY INFORMATION
Not for use or disclosure outside of the
Parties except under written agreement
GENERAL TERMS AND CONDITIONS
Table of Contents
<Table>
<Caption>
Section Page
- ------- ----
16. PROPRIETARY RIGHTS AND LICENSES ................................. 15
Software and Documentation License ..................... 15
Right to Use ........................................... 16
Right to Copy the Licensed Software and Licensed
Documentation ................................. 17
Distribution Rights .................................... 17
[Reserved] ............................................. 17
[Reserved] ............................................. 17
Improvements and Upgrades .............................. 18
Right to Transfer ...................................... 18
Reverse Engineering .................................... 18
Software Maintenance ................................... 18
17. SOURCE CODE ..................................................... 18
18. INSPECTION, TESTING AND ACCEPTANCE .............................. 19
Inspection ............................................. 19
Supplier Testing ....................................... 19
Integrated System Tests ................................ 19
Operational Dry Run .................................... 20
Availability Test ...................................... 21
Acceptance ............................................. 21
Delay in Completion .................................... 22
19. WARRANTIES ...................................................... 22
System ................................................. 22
Documentation .......................................... 23
Third Party Equipment .................................. 24
Replacement Parts ...................................... 24
Work ................................................... 24
Conditions of Warranties ............................... 24
20. SUPPLIER'S SYSTEM SUPPORT ....................................... 25
21. INFRINGEMENT PROTECTION ......................................... 26
</Table>
PROPRIETARY INFORMATION
Not for use or disclosure outside of the
Parties except under written agreement
GENERAL TERMS AND CONDITIONS
Table of Contents
<Table>
<Caption>
Section Page
- ------- ----
22. FITNESS FOR DUTY ................................................ 28
23. INDEMNITY ....................................................... 29
24. INSURANCE ....................................................... 30
25. SAFETY NOTIFICATIONS ............................................ 32
26. LIMITATION OF LIABILITY ......................................... 33
27. DISPUTES ........................................................ 34
28. TERMINATION AT WILL ............................................. 35
29. DEFAULTS AND CANCELLATION FOR CAUSE ............................. 36
30. NON-WAIVER ...................................................... 37
31. ASSIGNMENT ...................................................... 37
32. SEVERABILITY .................................................... 37
33. NOTICES ......................................................... 38
34. GOVERNING LAW ................................................... 38
35. SECTION HEADINGS ................................................ 38
36. SURVIVAL ........................................................ 38
37. CONFLICT OF INTEREST/BUSINESS ETHICS ............................ 39
38. EQUAL OPPORTUNITY LAWS .......................................... 40
39. INJURY AND ILLNESS PREVENTION PROGRAM ........................... 42
</Table>
PROPRIETARY INFORMATION
Not for use or disclosure outside of the
Parties except under written agreement
GENERAL TERMS AND CONDITIONS
Table of Contents
<Table>
<Caption>
Section Page
- ------- ----
40. ENTIRE AGREEMENT ................................................ 42
41. LICENSE AGREEMENTS .............................................. 42
42. THIRD PARTY BENEFICIARIES ....................................... 42
43. EXECUTION ....................................................... 43
ANNEX A: Specification
ANNEX B: Price
ANNEX C: License and Software Maintenance Agreements
ANNEX D: Third Party Software
ANNEX E: Source Code
ANNEX F: Dispute Resolution Procedures
</Table>
PROPRIETARY INFORMATION
Not for use or disclosure outside of the
Parties except under written agreement
GENERAL TERMS AND CONDITIONS
THIS AGREEMENT, effective ______________ 1997 (Agreement), is between__________
(Supplier), a Delaware limited Liability company, [address], [city], and
___________________________ (Purchaser), a project management contractor
representing the Western Power Exchange (WEPEX), a collaborative effort by
Pacific Gas and Electric Company, San Diego Gas & Electric Company and Southern
California Edison Company to establish a Power Exchange to operate a California
spot market for electricity in response to the California Public Utilities
Commission (CPUC) December 20, 1995 ruling to restructure the electric utility
industry. The parties hereinafter shall be individually known as "Party" and
collectively as "Parties." This Agreement consists of this paragraph and the
following Articles, and includes all Exhibits, Appendices, Forms and other
documents incorporated by reference herein or attached hereto and which are
hereby made a part hereof.
1. AGREEMENT
In consideration of the payments to be made and obligations to be
perfonned by Purchaser, Supplier shall perform the Work and its other
obligations, all as specified in this Agreement.
2. DEFINITIONS
When used herein with initial capitalizations, whether in the singular
or in the plural, the following terms shall have the following
meanings:
Acceptance or Accepted: When all of the conditions of acceptance have
been met as set forth in Section 18.6 hereof.
Acceptance Test Procedure: A document, prepared by Supplier and
approved by Purchaser, which designates the tests and inspection to be
perfonned on the System to determine its conformance with the
Specification.
Amendment: Document issued by Purchaser, and agreed to by Supplier,
which amends this Agreement pursuant to Article 10.
Authorized Representative: The only person(s) or entity(ies) designated
by notice given to Supplier by Purchaser as being authorized to act on
behalf of Purchaser for the purposes of this Agreement, subject to any
limitations specified in the notice.
Authorized Users: As defined in Section 16.1.1.
PROPRIETARY INFORMATION
Not for use or disclosure outside of the
Parties except under written agreement
CPUC: The California Public Utilities Commission or its regulatory
successor.
Derivative Work: A revision, modification, translation, abridgment,
condensation, expansion, upgrade, adaptation into other operating
systems, or other manipulation of the Licensed Software, or any other
form in which the Licensed Software may be recast, transferred or
adapted, which if prepared without the consent of the owner(s) of the
Licensed Software would constitute an infringement of such owner(s)
intellectual property rights to said Licensed Software.
Developments: As defined in Section 16.2.
Delivery Dates: The contractual dates as specified in this Agreement on
which the components of the System shall be transferred to the common
carrier for shipment (FOB Point of Shipment) or shall be received at
the designated shipment destination (FOB Destination), as specified by
the FOB terms in this Agreement.
Documentation: Drawings, procedures, instructions, reports, manuals,
Software, Software Documentation, and other data, to be furnished by
Supplier pursuant to this Agreement.
Field Technical Services: Technical services furnished by Supplier at
the Jobsite as stated in the Specification, such as technical support
during installation, acceptance testing, and implementation.
Funding Decision: CPUC Decision 96-08-03 8 (August 2,1996), as that
Decision may be modified or superseded. This Decision among other
things provides for funding of the Work and establishes a Trustee, a
trust advisory committee and independent technical advisors, which will
have oversight over the Work and payments for such Work.
Intewated System Tests: Tests prepared by Supplier and approved by
Purchaser, and conducted by Supplier and Purchaser (or their authorized
representatives) in accordance with the Acceptance Test Procedure on
the System at Supplier's facility and/or the Jobsite to demonstrate
conformance with the Specification.
Jobsites: The locations of the facilities selected by Purchaser for the
deployment of the System as set forth in the Specification.
Licensed Documentation: Documentation furnished under this Agreement to
which Supplier or a third party (licensor of Supplier) owns the
intellectual property rights which are not transferred to the Licensee
under this Agreement.
Licensed Software: As defined in Section 16.1.
Licensee: As defined in Section 16.1.
Operational Dry Run: Tests prepared by Supplier and approved by
Purchaser, and conducted by Purchaser on the System installed at the
Jobsite to demonstrate operation and availability in conformance with
the Specification after shipment and installation as described in
Section 18.4.
Power Exchange (PX): A corporation, to be formed, which will operate
the California spot market for electric power as contemplated in the
Restructuring Decisions.
Restructuring Decisions: CPUC Decision 95-12-063 (December 20, 1995) as
modified by D.96-Ol -009 (January 10,1996), in Dockets Nos. R.94-04-031
and 1.94-04-032, as those Decisions may be modified or superseded.
Software: All computer programs in source or machine executable code,
which direct the operation of the System and which are developed by
Supplier, or licensed from third parties by Supplier, and are furnished
by Supplier to Purchaser as stated in this Agreement. Software shall
include, but not be limited to, System software, operating systems,
data base maintenance tools, system generation software, data link
software and application programs.
Software Documentation: All basic, descriptive training and instructive
materials pertinent to Software such as flow charts, instruction and
user manuals, systems manual(s), programming manual(s), logic diagrams
and calculations, to be furnished by Supplier as stated in this
Agreement.
Source Code: The set of instructions expressed in a non-machine
language from which the Software's machine executable code is derived.
Specification: The requirements set forth in the California Power
Exchange PX Systems Request for Proposal detailing the hardware,
Software and services needed for the WEPEX, as modified or amended and
attached hereto as Annex A.
Subcontractor: Either an entity contracting directly with Supplier to
furnish any part of the Work including materials or services, or an
entity contracting with Supplier's subcontractors of any tier to
furnish any part of the Work including materials or services.
Supplier Representative: The only person(s) or entity(ies) designated
by notice given to Purchaser as being authorized to act on behalf of
Supplier for the purposes of this Agreement, subject to any limitations
specified in the notice.
Supplier's Software or Licensed Software: Software to which a Supplier
or a third party (licensor of Supplier) owns the intellectual property
rights which are not transferred to the Licensee under this Agreement.
System (PX System): The computerized system including and consisting of
hardware, computers, processors firmware, Software, Software
Documentation, and
interconnecting cables and other incidental equipment, which comprise
the deliverable system as an integrated whole, more specifically
described in the Specification; the System is also referred to as the
PX System.
System User: System User shall mean any person, legal or natural, that
uses the System for its intended purposes, including but not limited to
the marketing and procurement of electricity.
Trustee: The Trustee or Trustees of the trust which may be established
as required by the Funding Decision in order to manage funds for
development of the infrastructure for the PX.
Uncontrollable Force: Causes beyond the reasonable control of a Party
including but not limited to: flood, fire, lightning, earthquake,
unusually severe weather, material unavailability which by the exercise
of due diligence and foresight such Party could not avoid and which by
exercise of due diligence it is unable to overcome, epidemic,
quarantine restriction, war, sabotage, act of a public enemy,
insurrection, riot, civil disturbance, strike, restraint by court order
or public authority and action or non-action by or inability to obtain
authorization or approval from any governmental agency or authority
(except, in the case of Purchaser, the CPUC, Trustee or PX), which by
the exercise of due diligence it is unable to overcome. For Supplier,
"Uncontrollable Force" F shall also include delays by the Purchaser and
Authorized Users in their determination, negotiation or approval of,
and their inability to reach agreement with respect to, any matter that
adversely affects the Work or the Work Schedule, including but not
limited to the "business rules" and protocols under which the PX is to
function, as well as any necessary clarifications of such business
rules and protocols.
Work: The work necessary to develop the System and the Documentation,
including all F engineering, analysis, design, development,
manufacture, assembly, inspection, testing, shipment, installation,
integration, Field Technical Services, training, and all other tasks
and obligations of Supplier to be performed or furnished as required by
this Agreement.
Work Schedule: A chronological listing of significant events and
milestones in the performance of the Work, including delivery and
testing of the System as agreed to by the Parties, as such
chronological listing may be amended or modified from time to time.
Work Product: As defined in Section 16.2.2 hereof.
3. TOTAL AUTHORIZED AMOUNT AND EFFECTIVE PERIOD
3.1 Pursuant to the [OPTIONS: Cost Summary Sheet, Cost Sheet, Cost
Proposal Summary Sheet, page(s) ___ of Supplier's Proposal]
dated [date], which is [OPTIONS: attached hereto and made a
part of this Agreement, is incorporated herein by this
reference], the total authorized amount of this Agreement is
not to exceed $__________.00, including applicable taxes and
an allocation of $
_____.00 for bonding [if applicable], without prior
authorization by issuance of an Amendment.
3.2 This Agreement shall be effective for Work authorized from
___________, 1996 through ___________, 1998, inclusive, unless
otherwise authorized by an Amendment.
4. PRIORITY OF DOCUMENTS
In the event of conflicting provisions that may be contained in this
Agreement, the provisions shall govern in the following order:
Amendments from the most recent to the earliest, these General Terms
and Conditions, the Specification, and other specifically referenced
documents. Each Party shall notify the other immediately upon the
determination of the existence of any such conflict.
5. SCOPE OF WORK
This Agreement is intended to cover all requirements necessary to
perform the Work and to furnish a System in good working order that
performs in all material respects all functions specified in the
Specification. Unless expressly excluded in the Specification or this
Agreement, any and all equipment, labor, material and services
necessary to provide such a System and Work shall be within the scope
of this Agreement and shall be furnished by Supplier for the price set
forth in Annex B to this Agreement.
6. WORK SCHEDULE
6.1 Supplier shall complete the Work and deliver the System and
Documentation in all material respects as shown in the Work
Schedule.
6.2 If the scheduled dates are not met, or it is reasonably
certain that they will not be met, due, in either case, solely
to Supplier's negligence or willful misconduct, and such
delayed dates may impact the Work Schedule, Supplier shall, at
its own expense, take whatever measures may be required
(including additional resources, shifts, and overtime) to
bring the Work back on schedule.
6.3 Uncontrollable Forces:
6.3.1 Supplier shall not be required to incur additional
expense and shall not be liable to Purchaser for
delay or inability of Supplier to perform the Work
due to Uncontrollable Forces; provided that Supplier:
(i) promptly notifies Purchaser in writing of the
nature, cause, date of commencement, and expected
duration of such delay or inability; and (ii) has
exercised due diligence to meet the Work Schedule. In
such event, Purchaser shall either: (a) extend the
Work Schedule for a period of time consistent with
the period of such delay, without any change in
price; or (b) subject to Section
10.2, direct by an Amendment that performance of the
Work be accelerated.
6.3.2 Purchaser shall not be in default in the performance
of its obligations under this Agreement (other than
obligations to pay monies pursuant to this
Agreement for Work performed and Accepted or work
performed or thereafter Accepted if their delay
or inability to perform is due to Uncontrollable
Forces.
6.3.3 The following delays shall in no event constitute
Uncontrollable Forces in performance by Supplier and
shall not constitute a reason for extending the date
for performance of the Work:
(a) Delays by Subcontractors for reasons other
than those defined above;
(b) Delays in Documentation approval by
Purchaser due to inadequate Documentation or
approval schedules allowing less than ten
(10) business days for review; and
(c) Delays caused by Supplier's lack of
sufficient personnel with necessary
technical skills.
6.4 Supplier shall use reasonable commercial efforts to schedule
Work performed by Supplier on the PX's premises to conform to
published PX working hours and to account for the PX's
observed holidays. Upon request by Supplier, Purchaser will
provide reasonable access to PX's premises outside published
PX working hours and on PX's observed holidays to the extent
necessary to deliver the System and Documentation on the date
set forth in the Work Schedule.
6.5 Supplier's performance hereunder is contingent upon the
cooperation of Purchaser, including the supply to Supplier of
adequate resources and information as mutually agreed pursuant
to this Agreement. If any delays in Supplier's performance
occur as a result of failure or untimely performance by
Purchaser, the PX, the Trustee, the Authorized Users or their
employees, contractors, or vendors, this Agreement, the
purchase price and Delivery Dates or Work Schedule, as
appropriate, shall be equitably adjusted to reflect such delay
in an Amendment and Supplier shall not incur any liability to
Purchaser or any other person as the result of such delay. If
such delays last for thirty (30) calendar days or more,
Supplier shall be entitled to terminate this Agreement by
giving seven (7) days' prior written notice to Purchaser, such
termination to be effective on the date indicated on such
notice, provided that prior to giving such notice, Supplier
shall invoke the provisions of Section 27 to attempt to
resolve the matter at issue.
7. RISK OF LOSS
Risk of loss of or damage to the System shall pass from Supplier to
Purchaser upon Acceptance of the System, except that the risk of loss
of or damage to any hardware, Software or Documentation located on
premises other than Supplier's or any Subcontractor's premises,
including Purchaser's or PX's premises, whether prior to or following
Acceptance, shall transfer to Purchaser at the time such hardware,
Software or Documentation becomes located on such premises.
8. TITLE
8.1 Title to the System, except for Licensed Software and other
intellectual property, shall pass to Purchaser upon final
payment of all amounts due and payable under this Agreement
through the date of Acceptance. Title to Licensed Software and
other intellectual property shall remain with Supplier or the
applicable third party, subject to the license granted to
Purchaser as provided in Article 16, upon final payment of all
amounts due and payable under this Agreement through the date
of Acceptance.
8.2 Title to all data input into the System and to all data
output received through the operation of the System shall
remain with Purchaser, except test data developed by Supplier
or its Subcontractors and input into or output received
through the operation of the System, title to which test data
shall remain with Supplier.
8.3 Title to Documentation, except for Licensed Documentation,
shall pass to Purchaser upon final payment of all amounts due
and payable under this Agreement through the date of
Acceptance. Title to Licensed Documentation shall remain with
Supplier or the applicable third party, subject to the license
granted to Purchaser as provided in Article 16, upon final
payment of all amounts due and payable under this Agreement
through the date of Acceptance.
8.4 Title to all Work Product, which is expressly listed on an
addendum to this Agreement as being developed for Purchaser's
ownership, shall pass to Purchaser upon final payment of all
amounts due and payable such Work Product under this Agreement
through the date of Acceptance.
8.5 Passage of title shall be free and clear of all liens and
encumbrances (other than the licenses of the Licensed Software
and Licensed Documentation) and shall not impair the rights of
Purchaser regarding the System or Documentation.
9. COMMERCIAL TERMS
9.1 Invoices:
9.1.1 For progress or partial shipment payments when so
stated in this Agreement: The invoice for each
payment listed shall be submitted to Purchaser
following substantial completion of the corresponding
milestone.
9.1.2 Final payment: The invoice for the final payment
shall be submitted to Purchaser when all of the items
of the System have been received at the Jobsite and
the System has been Accepted pursuant to Section 18.6
hereof.
9.1.3 Invoices shall be submitted to the address as
directed by Purchaser.
9.1.4 Invoices shall not be dated prior to completion of
the portion of the Work for which they are submitted.
9.1.5 Deductions for unsubstantiated or incorrect charges
and retention shall be invoiced separately.
9.2 Payment:
9.2.1 Payment milestones have been selected to identify the
actual status of the portion of the Work completed.
Payments shall be based on actual completion of each
milestone event, not on the scheduled completion
date. When a change in the Work is approved, the
total purchase price for the Work and the remaining
milestone payments shall be adjusted accordingly.
When a milestone has been satisfactorily completed,
payments shall be made by Purchaser within thirty
(30) calendar days of receipt of a correct invoice
therefor. Late payments will bear interest accrued
and compounded daily at a rate equal to the lesser of
(i) two percent (2%) above the reference rate charged
by the Bank of America, NT&SA, San Francisco,
California, or (ii) the highest rate allowed by
applicable law.
The percent of the total purchase price to be paid
upon completion of each milestone shall be as set
forth in this Agreement. The payment milestones are
as follows:
Milestone Milestone Description Percentage
(See Section 3 of the Commercial Proposal)
9.2.2 For any portion of the System or Documentation which
does not conform in all material respects to the
Specification, a mutually agreeable portion of the
payment may be withheld until such nonconformance is
corrected. In the event the parties disagree as to
whether any portion of the System or Documentation
conforms to the requirements of this Agreement, the
dispute shall be settled in accordance with Section
27 hereof.
9.3 Taxes:
Supplier shall pay, and Purchaser shall reimburse Supplier
for, all sales, use, personal property and other taxes
required to be paid by Supplier in connection with the Work
and the System, except franchise taxes and taxes levied upon
Supplier's income. Each party will cooperate with the other in
minirnizing any applicable tax and, in connection therewith,
Purchaser will provide Supplier with any resale certificates,
information regarding use of materials, services or sales, or
other exemption certificates or information reasonably
requested by Supplier.
Supplier shall identify separately on invoices: (i) the
non-taxable portion of the price and the reason therefor; and
(ii) the taxable portion of the price with its corresponding
taxes. Supplier shall provide supporting data as may be
requested by Purchaser.
9.4 Payment for Field Technical Services when not included in the
fixed contract price:
9.4.1 Field Technical Services approved by Purchaser, which
are not included in the fixed price for the System,
shall be paid at the rates submitted for a calendar
year.
9.4.2 Local travel and living expenses while at the Jobsite
shall be paid at cost plus 20% for administrative
charges. Travel to and from the Jobsite shall be
reimbursed at the lesser of published coach/economy
class rates or actual cost.
9.4.3 Timesheets for the Field Technical Services showing
the individuals and the hours worked shall be
presented weekly to the Authorized Representative.
9.4.4 At the end of each month or upon completion of the
Work, whichever occurs first, Supplier shall submit
its invoice listing the name of the
person, dates and hours worked and applicable rate,
per diem charges and rates, and air travel charges.
9.5 Claims:
Supplier shall notify the Authorized Representative in writing
of its intent to make a claim for any additional compensation
within thirty (30) calendar days after the event which gave
rise to such claim.
10. CHANGES
10.1 Supplier may request or Purchaser may direct changes in the
Work including, but not limited to, adding to, deleting from
or modifying the Work and the Specification. In addition,
changing conditions of law or Uncontrollable Force may require
contract price or date of performance revisions to be agreed
upon by the Parties. This Agreement, the purchase price and
Delivery Dates or Work Schedule, as appropriate, shall be
equitably adjusted to reflect such changes, and a such changes
and equitable adjustments shall be set forth in an Amendment.
10.1.1 Upon submission or receipt of a request for a change
to the Work, Supplier shall, within ten (10) calendar
days, submit to Purchaser, in writing, either a
detailed schedule for accomplishing the change and a
good faith estimate of the cost of the change, or
notification as to when such a schedule can be
provided by Supplier. Within five (5) business days
after receiving such schedule, Purchaser will approve
such change or withdraw the request for such change.
With such schedule, Supplier shall make a good faith
estimate of the effects of each change on the
following performance items:
(a) Percentage of spare main and auxiliary
memory;
(b) Loading of transfer channels to computer
peripherals;
(c) User interface responses; and
(d) Loading of the processors.
No change in these performance items is allowed
unless specifically approved by Purchaser, in
writing, regardless of authorized changes to hardware
or Software and regardless of the options purchased.
Approval of any change to the System that could
reasonably affect any of these performance items
shall be deemed to be specific approval of a change
in these performance items. Supplier shall make a
good faith estimate of the effects of changes on the
completion date of the Work and completion
milestones. Supplier shall provide a written
assessment of the impact of
each specific change on the spare parts, training,
testing, and Documentation requirements.
10.2 Changes to this Agreement shall be made only by mutual
agreement of the Parties in accordance with a mutually
satisfactory change procedure. To be valid, such changes shall
be set forth in an Amendment.
10.3 Supplier shall provide reasonably sufficient cost supporting
data including, but not limited to, work hours by type of
labor, rates, material and Subcontract costs, to enable
Purchaser to evaluate whether or not to approve a change.
Supplier shall not implement a change or submit an invoice for
the resulting price change until the authorizing Amendment has
been issued by Purchaser and accepted by Supplier.
10.4 The Parties recognize that minor changes may be required
during performance of the Work. Such changes shall be
requested by the issuance of marked up approval drawings and
documents, directives from the Authorized Representative, or
by other procedures established by the Authorized
Representative, and shall require the approval of the
Authorized Representative. If Supplier has a claim for
adjustment in the price or schedule due to such changes, it
shall submit to the Authorized Representative in writing a
claim to this effect within thirty (30) calendar days from the
date such changes were requested. Supplier shall state such
claim in sufficient detail to allow the Authorized
Representative to determine the reasonableness of the claim.
If the Authorized Representative concurs that such change is a
change of the requirements of this Agreement, including the
Specifications, and desires to implement such change, then an
authorizing Amendment shall be issued. If Supplier does not
agree that the proposed change is a minor change, Supplier
shall not be required to implement such change unless and
until the procedures in Section 10.1 are completed.
10.5 Supplier shall comply in all material respects with each
Amendment in accordance with the Work Schedule therein and
evidence its acceptance of all of the provisions contained
therein as full compensation for all costs and schedule impact
of such changes, by promptly executing the acceptance copy of
each Amendment when requested and returning such acceptance
copy to the Authorized Representative.
10.6 Any disagreement between the parties as to whether the change
constitutes a change of requirements shall be resolved
pursuant to Article 27.
11. PROJECT MANAGEMENT
11.1 Purchaser shall assign an Authorized Representative who shall
manage Purchaser's activities associated with this Agreement
and shall have overall direction and responsibility for
directing the Work. Any correspondence to
Purchaser of a technical and Work administrative nature shall
be addressed to the attention of the Authorized
Representative.
11.2 Administration of this Agreement and Amendments shall be
performed by Purchaser. Any correspondence to Purchaser
regarding commercial provisions or terms and conditions of
this Agreement shall be identified by this Agreement number
and shall be addressed to the attention of the Authorized
Representative. A mutually satisfactory project management
framework will be developed and used by the Parties to assign
responsibilities, interdependencies, milestones, and schedules
and to delineate reporting requirements.
11.3 Supplier shall assign a Supplier Representative who shall
manage Supplier's activities associated with this Agreement
and shall have overall direction and responsibility for the
Work by Supplier. Any correspondence to Supplier shall be
addressed to the attention of the Supplier Representative.
11.4 This Agreement and all Supplier sub-orders are subject to
status monitoring by Authorized Representative or a designated
representative of the Authorized Representative.
11.5 Within thirty (30) days after receipt of this Agreement,
Supplier shall furnish to the Authorized Representative the
current status of the events in the Work Schedule. Thereafter,
Supplier shall furnish every month to the Authorized
Representative a status report, in triplicate, showing the
actual status of each production phase and each milestone. If
the actual completion milestones lag such scheduled dates, an
explanation shall accompany the status report stating the
problem area, measures taken to eliminate the problem, and
when the item will be back on schedule. The Authorized
Representative shall be notified immediately of any potential
problem situations which may affect the timely completion of
any of the milestones.
11.6 Purchaser, the Authorized Representative and their agents
shall have the right of access to Supplier's and
Subcontractor's facilities upon reasonable notice and during
normal working hours to verify conformance to the Work
Schedule and inspect the Work.
11.7 Any deviations from the Specification shall require the prior
written approval of the Authorized Representative or the
issuance of a Amendment.
12. CODES AND STATUTES
12.1 The work shall comply in all material respects with all
material applicable laws statutes, acts, ordinances,
regulations, codes and standards of federal, state and local
governmental agencies having regulatory federal jurisdiction
in effect on
January 13, 1997. Any changes to these after such date shall
be treated as a change to the Work authorized by an Amendment.
12.2 Supplier shall conform to the employment practices
requirements of Executive Order 11246 of September 24, 1965,
as amended, and applicable regulations promulgated thereunder.
13. SUBCONTRACTORS
Supplier shall at all times be responsible for the Work, and for the
acts and omissions of Subcontractors and persons directly or indirectly
employed by Subcontractor, which acts or omissions, were they acts or
omissions of Supplier or any persons directly employed by Supplier,
would be a breach of this Agreement. This Agreement shall not
constitute a contractual relationship between any Subcontractor and
Purchaser. Purchaser shall not have any obligation for payment to any
Subcontractor. Purchaser shall have the right of approval of any new
Subcontractors which were not identified in Supplier's proposal,
provided that such approval shall not be unreasonably withheld.
14. SUSPENSION
14.1 Purchaser may order Supplier to suspend, and, with Supplier's
consent, to subsequently resume, performance of all or of any
part of the Work at any time by the issuance of an Amendment.
14.2 If Purchaser orders suspension of all or any part of the Work,
Purchaser shall: (i) complete the payments due for Work
performed whether or not such Work has been Accepted up to the
effective date of the suspension notice and shall resume
payments in accordance with the provisions of Article 9 hereof
following the date on which the suspended Work is resumed;
(ii) pay for the additional reasonable costs necessarily
incurred by Supplier in deactivation, during suspension, and
in reactivation of the suspended Work, including any overhead
costs; (iii) equitably adjust the Work Schedule consistent
with the scope and duration of the suspension or direct that
performance of the suspended Work be accelerated as authorized
by an Amendment and equitably increase the costs, and (iv) a
suspension fee equal to $1,000,000 per month during the term
of the suspension. Supplier shall provide sufficient
supporting data for evaluation of the reasonableness of the
charges for item (ii) above. In the event the parties are
unable to agree on the costs in (ii) above or on the
adjustment of the Work Schedule or costs in (iii) above, such
disagreement shall be resolved pursuant Article 27. In the
event the parties fail to resolve such disagreement in
accordance with Article 27 within thirty (30) calendar days,
Supplier shall have the right to terminate this Agreement.
14.3 The provisions of this Article shall be Supplier's sole remedy
and Purchaser's total liability as a result of any suspension
of the Work, in whole or in part.
15. PROPRIETARY INFORMATION AND MATERIAL
15.1 Each Party (a "receiving Party") receiving Confidential Material
(defined below) from the other Party (a "disclosing Party") in
connection with this Agreement (directly or indirectly) agrees to hold
tat Confidential Material in confidence and, except as permitted in
this Article 15, agrees not to disclose it, or otherwise make it
available to any person or third party, or to use it for the benefit
of any third party' without the prior written consent of the
disclosing Party. Each Party agrees that all such Confidential
Material:
(a) shall be used only for the purpose of performing Work or using
the System; and
(b) shall not be reproduced, copied, in whole or in part, except as
specifically directed by the disclosing Party and necessary for
the purpose set forth in (a) above; and
(c) shall, together with any copies (except backup and archival
copies produced in accordance with a Party's network information
processing procedures), reproductions or other records thereof,
in any form, and all information and materials developed by that
therefrom, be returned to the disclosing Party when no longer
needed in connection with this Agreement.
15.2 To the extent that a receiving Party needs to disclose Confidential
Material to a Subcontractor or other person in connection with this
Agreement, the System or Work, the receiving Party shall obtain from
such persons a written nondisclosure agreement substantively
equivalent to this Article 15 to treat such information as
confidential and not to disclose or, except as permitted by this
Article 15, use it without the receiving Party's written consent.
15.3 Confidential Material furnished to a receiving Party in connection
with this Agreement (directly or indirectly), shall be protected by
the receiving Party from disclosure to others with reasonable efforts
in that regard, provided that the receiving Party shall have the right
to grant access to Confidential Material to employees, consultants or
Subcontractors as provided in Section 15.2.
15.4 Confidential Material: Each Party (a "receiving Party") will have
access to technical information and materials including but not
limited to, drawings, specifications, designs, records, computer
programs and related documentation tat is marked "confidential" or
with words of similar meaning, which are owned by the other Party (the
"disclosing Party") or by third parties, and which constitute valuable
confidential and proprietary information, know-how and trade secrets
belonging to the disclosing Party or third parties (hereinafter
referred to as
"Confidential Material"). Confidential Material shall include
information received from a disclosing Party in connection with the
RFP, this Agreement, or the performance of the Work, information
developed expressly for Purchaser under this Agreement, and all
Software and Documentation. Confidential Material shall not include
information or material that:
(a) is the public domain at the time of disclosure, or
thereafter enters the public domain through no fault of the
receiving Party; or
(b) is in the rightful possession of the receiving Party (other
than possession arising in connection with this Agreement)
at the time of disclosure by the disclosing Party; or
(c) is later received by the receiving Party without
confidentiality restrictions, from a third party having the
lawful right to disclose it; or
(d) is later independently developed by the receiving Party
without reliance on Confidential Materials; or
(e) is required by law, or by a governmental agency, to be
disclosed.
15.5 The confidentiality provisions of this Article 15 shall constitute the
sole confidentiality obligations of the Parties under this Agreement.
16. PROPRIETARY RIGHTS AND LICENSES
It is the intention of the Parties that all intellectual property rights in
Software and Documentation, including but not limited to, all copyrights
and patent rights, shall remain with Supplier or its licensor(s). Such
Software and Documentation, if any, shall be licensed to Purchaser under
the terms of the individual license agreements attached hereto as Annex C,
if any, which Purchaser agrees to execute, and, to the extent any of such
license agreements are not applicable, under the terms set forth in this
Article 16 ("Supplier's Software" or "Licensed Software" and "Supplier's
Documentation" or "Licensed Documentation"). Supplier shall use reasonable
commercial efforts to obtain license agreements from other third party
licensors, with respect to theft respective parts of all Licensed Software
and Licensed Documentation that are substantially equivalent to the
provisions of this Article 16.
16.1 Software and Documentation License: Supplier hereby grants to
Purchaser (hereinafter the "Licensee") a personal, non-exclusive,
99-year, non-transferable, paid-up, license to use the Licensed
Software and Licensed Documentation on the System provided by Supplier
under this Agreement and in conjunction with the use of the System
including, but not limited to, training, operation, modification, and
maintenance. Such license shall include the right to use the Licensed
Software
and Licensed Documentation by means of or in conjunction with known
and future technologies, including but not limited to known and
fixture platforms, provided that Purchaser shall pay any required
royalties or license fees associated with the use of such future
technologies or platforms, and provided fUrther that neither Supplier
nor its Subcontractors or licensors shall have any obligation to
support the Licensed Software or Licensed Documentation on such future
technologies or platforms. Such license shall also apply to upgrades
and replacements of the Licensed Software or Licensed Documentation
obtained from Supplier during the life of the System. Supplier may
revoke such license in the event Purchaser breaches its 6bligations
under this Agreement.
16.1.1 Supplier hereby also grants the following rights and licenses:
(i) a right of and license under the provisions of the
applicable license agreement or this Article 16 to contractors
and consultants of the Licensee to use and reproduce the
Licensed Software and Licensed Documentation solely in
conjunction with or for the purpose of the performance of
services for the Licensee in connection with the System,
subject to the execution by such contractors and consultants of
a written non-disclosure agreement substantively equivalent to
that provided in Article 15; and (ii) a right of and license
under the provisions of the applicable license agreement or
this Article 16 to System Users to use the machine executable
code version of the Licensed Software and Licensed
Documentation in their use of the System for its specified
purposes. The contractors, consultants and System Users to whom
the aforestated licenses are granted shall also be referred to
as "Authorized Users."
16.2 Right to Use: The Licensee shall have the right to develop peripheral
programs to meet present or future needs (including but not limited to
replicating a design to replace specific System components or
implement new sites or technologies, provided that the replication of
such design does not involve reverse engineering of Licensed
Software), and to make improvements, enhancements, upgrades,
adaptations and derivative works (all hereinafter referred to as
"Developments"). The Licensee is hereby authorized to make such
Developments. Supplier shall not have any rights to Developments, that
(i) are not Derivative Works in or of the Licensed Software or
Licensed Documentation; and (ii) do not incorporate any Licensed
Software or Licensed Documentation; and (iii) do not contain
Supplier's proprietary logic, design or coherence. Neither the
Licensee nor Supplier shall have any obligation or liability to each
other with respect to such Developments, including any obligation of
Supplier to indemnify Purchaser for infringement under this Agreement
with respect to the Licensed Software or Licensed Documentation.
16.2.1 Supplier agrees that, subject to Section 15.4 and the foregoing
provisions of this Article 16, the Developments made by or on
behalf of Licensee which meet the criteria set forth in
Sections 16.2(i). (ii) and (iii) above,
and all new Software, Documentation, and materials, and all
concepts, methods, techniques, designs, processes and ideas,
which originate or result from the performance of this
Agreement, and are developed by the Licensee, its employees,
agents or consultants which meet the criteria set forth in
Sections 16.2(i), (ii) and (iii) above shall belong solely and
exclusively to the Licensee, and the Licensee shall have sole
and complete ownership rights including exclusive copyright,
patent, and all other intellectual property rights in and to
the same, and Supplier will not, other than in the performance
of this Agreement, make use of or disclose the same to anyone.
Licensee agrees that all other Developments shall belong solely
and exclusively to the Supplier or, as the case may be, its
Subcontractor, and that the Licensor or, as the case may be,
its Subcontractor shall have sole and complete ownership rights
including exclusive copyright, patent, and all other
intellectual property rights in and to the same, subject to the
provisions of this Article 16, and Licensee will not, other
than in the performance of this Agreement, make use of or
disclose the same to anyOne. Software and Software
Documentation which Supplier has obtained from third parties
and which is incorporated into the Work Product are identified
on Annex D hereto, which Annex may be amended from time to
time.
16.2.2 Purchaser agrees that all Developments, Software,
Documentation, material, deliverables, concepts, methods,
techniques and designs which are made, conceived or developed
by Supplier, its agents, employees, or subcontractors as part
of the Work or on behalf of Purchaser (herein also referred to
as "Work Product") shall belong solely and exclusively to
Supplier or its Subcontractors, and such parties shall have
sole and complete ownership rights, including exclusive
copyright and patent ownership and all other intellectual
property rights in and to the same, subject to the provisions
of this Article 16, and Purchaser will not, except in
accordance with the terms of this Agreement, make use of or
disclose the same to anyone.
16.3 Right to Copy the Licensed Software and Licensed Documentation: The
license granted herein shall entitle the Licensee and Authorized Users
(subject to the obligation to obtain executed non-disclosure
agreements) to make or cause to be made up to the number of licensed
copies of the Licensed Software and Licensed Documentation, and other
materials furnished under this Agreement solely for the use of the
System by the Licensee and any Authorized Users, plus a reasonable
number of backup and archival copies. Such copies may be made without
further permission of Supplier or the copyright owner and regardless
of whether such Licensed Software, Licensed Documentation or other
materials are copyrighted or otherwise proprietary. All such copies
shall be subject to the terms of this Agreement and the applicable
license agreement.
16.4 Distribution Rights: The Licensee may distribute copies of the
Licensed Software, Licensed Documentation and other materials
furnished under this Agreement to Authorized Users (subject to the
obligation to obtain executed non-disclosure agreements) by such
means or technologies as they may choose, including without
limitation physical media, electronic transmission and
telecommunications and known and future technologies. No license is
granted for resale, consulting use, rental or timesharing, reuse or
installation on other systems, nor, except as provided in this
Agreement, is a license granted for the right to sublicense, transfer
or assign the Licensed Software or the Licensed Documentation.
16.5 [Reserved]
16.6 [Reserved]
16.7 Improvements and Upgrades: Supplier shall provide to the Licensee, at
reasonable charges, and for at least a period of three (3) years
after warranty of the System, all Software improvements, new
versions, additions, updates, enhancements and error corrections to
or of the Licensed Software with the associated changes to the
Licensed Documentation.
16.8 Right to Transfer: The Purchaser shall have the right to transfer to
any person, legal or natural, designated by the CPUC or the Trustee
to succeed to the rights and to perform the functions of Purchaser,
all rights and licenses granted to the Purchaser in this Article 16.
Upon such transfer by means of an assignment or novation of this
Agreement, the transferee shall be deemed to be a Licensee under the
terms of this Article 16; provided, such transfer shall not reduce,
limit, or otherwise affect the rights of Purchaser as Licensee under
this Article 16, and the applicable license agreement with respect to
dates prior to the date of such transfer.
16.9 Reverse Engineering: Licensee shall not reverse engineer, decompile
or disassemble any of the Licensed Software provided to Purchaser
only in binary, object or machine executable form, including Licensed
Software provided by Supplier's licensors. Licensee shall make all
reasonable efforts to prevent any of its employees from independently
attempting any such prohibited activities.
16.10 Software Maintenance: Except as otherwise provided in this Agreement,
Licensee shall provide maintenance in accordance with the terms of
the maintenance agreements attached as Annex C.
17. SOURCE CODE
All Source Code for the Licensed Software set forth in Annex F shall be
delivered to Purchaser.
18. INSPECTION, TESTING AND ACCEPTANCE
18.1 Inspection: Purchaser shall have the right at all reasonable times to
inspect and witness testing of the System and its hardware and
Software components, and to verify milestone completion. Supplier
shall make all necessary arrangements and provide all reasonable
facilities and access for such inspection and witnessing, either at
Supplier's place of fabrication, manufacture or assembly, or at any
other place where any major assembly of the System is fabricated,
manufactured or assembled. Inspection by Purchaser shall not be
construed as constituting either a waiver of any rights of Purchaser
or obligations of the Supplier, or Acceptance. Supplier shall give
Purchaser a minimum of ten.(10) calendar days prior notice as to the
time when the System or any major assembly thereof will be ready and
available for inspection.
18.2 Supplier Testing: Prior to start of Integrated System Tests (1ST),
Supplier shall test the System using the Acceptance Test Procedure
and correct any material failure (including discrepancies, defects,
and malfunctions) to meet the test criteria (all such material
failures hereinafter referred to as "Defects, Malfunctions or
Nonconformities"). These tests shall not require the presence or
participation of Purchaser. Supplier shall provide Purchaser with
Documentation of the performance of the System during these tests.
18.3 Integrated System Tests:
18.3.1 Supplier shall have the System ready for Supplier and the
Authorized Representative to conduct the Integrated System
Tests by the date stated in the Work Schedule subject to the
terms and conditions of this Agreement which contemplate the
possible extension of such date. The Integrated System Test
shall be conducted /using the Acceptance Test Procedure. All
Defects, Malfunctions or Nonconformities shall be logged for
later resolution or will be addressed immediately if testing
can not or, in Purchaser's reasonable judgment, should not, be
performed without the necessary corrections. Supplier shall
make available for the Authorized Representative's conduct of
the testing the appropriate test equipment and facilities, and
design engineers for consultation as reasonably requested by
the Authorized Representative. The testing shall be conducted
using commonly acceptable methods and may include unstructured
operational testing.
18.3.2 Supplier shall maintain testing and performance Documentation
in compliance in all material respects with the requirements
of the Specification.
18.3.3 Upon completion of the Integrated System Tests, Purchaser
shall notify the Supplier in writing within five (5) business
days of authorization to ship the System or of the denial of
such authorization.
18.3.4 If the authorization to ship is denied, Purchaser shall state
in writing the reasons for the denial, and such reasons shall
consist of references to any tests set out in the Acceptance
Test Procedure. In the event of such a denial, the reasons
given by Purchaser shall immediately be discussed between the
Authorized Representative and Supplier, and Supplier shall, at
its sole expense, correct all Defects, Malfunctions or
Nonconformities. Upon such correction, Purchaser may perform
such tests set out in the Acceptance Test Procedure with which
the System did not comply in all material respects (as stated
in the notification from Purchaser) or which may have been
affected by corrective action of Supplier.
18.3.5 Upon receipt of written notice from the Authorized
Representative of I) authorization to ship, Supplier shall
proceed with shipment to the System installation facility.
Authorization to ship the System shall not constitute
Acceptance of the System and shall be given without any
prejudice to Purchaser's right to correction of any Defects,
Malfunctions or Nonconformities outstanding or revealed by
on-site Acceptance Test Procedures.
18.3.6 Defects, Malfunctions or Nonconformities in the System that
are not material and which the Authorized Representative deems
not sufficient to delay shipment, shall be listed on a
completion list prepared by the Authorized Representative.
Supplier shall complete or correct the items on the completion
list in accordance with a mutually acceptable work schedule.
18.4 Operational Dry Run:
18.4.1 Upon completion of shipment, Supplier shall uncrate, inspect,
and install the System, and prepare it for the Operational Dry
Run by the dates shown in the Work Schedule, subject to the
terms and conditions of this Agreement which contemplate the
possible extension of such date.
18.4.2 Purchaser shall conduct the Operational Dry Run using the
Acceptance Test Procedure with assistance from Supplier. Such
tests are acceptance tests developed by Supplier, and approved
by Purchaser, to verify that the System, after installation,
performs in material conformance with the Acceptance Test
Procedure.
18.4.3 Any material non-conformance indicated by such tests shall be
promptly corrected by Supplier at its sole expense and the
applicable portions of
such tests shall be reperformed to demonstrate performance in
material compliance with the applicable Acceptance Test.
Supplier shall be allowed full time access to the System to
make such corrections. Minor discrepancies with such tests
which Purchaser in its sole discretion deems not to be
sufficient to delay Acceptance of the System shall be listed
on a completion list prepared by Purchaser and shall be
corrected by Supplier at Supplier's expense in accordance with
a mutually acceptable work schedule.
18.4.4 Right to System Requiring Correction: If, after the System or
any part thereof has been installed, the System, or the
process or the function performed thereby, requires material
correction, Purchaser shall have the right to use the System
until such time as it is convenient to Purchaser to have the
System or any part thereof removed from service for
correction; provided such use will not, in Supplier's sole
discretion, cause damage to the System or is otherwise likely
to make repairs more difficult or time consuming or result in
liability to Supplier. Such use shall not constitute
Acceptance, nor shall it constitute a waiver of any of
Purchaser's rights with respect to the System.
18.5 Availability Test:
18.5.1 Upon the successful completion of the Operational Dry Run, the
System shall be proven by a continuous 2000-hour Availability
Test. The test shall consist of exercising the functions
provided by the System during normal day to day operation.
18.5.2 Purchaser shall maintain the test records during the
Availability Test. At the conclusion of the test, the test
records shall be examined to determine the System's
conformance, in all material respects, to the availability
criteria defined in this Agreement.
18.6 Acceptance: Acceptance of the System ("Acceptance") shall not occur
until all of the following conditions have been met:
18.6.1 All tests required by this Agreement have been completed in
accordance with the terms and conditions herein; and
18.6.2 [Reserved];
18.6.3 All deliverables including instruction books, manuals, and all
other Documentation, have been received; and
18.6. Purchaser or Authorized Representative has notified Supplier in
writing of Acceptance; otherwise Acceptance shall be deemed to have
occurred 10 business days after the foregoing conditions have been
met.
The Work shall be deemed completed, accepted, and ready for final
payment when all of the aforestated conditions have been met. Such
Acceptance shall not constitute a waiver of any right of Purchaser
under this Agreement. Upon such Acceptance, Supplier shall invoice
Purchaser for the final payment and all outstanding retention.
18.7 Delay in Completion: In the event that delivery of all equipment,
software, Documentation, and all other deliverables specified in this
Agreement is not substantially complete by the delivery date
specified in the Work Schedule, or such later date as may result from
an equitable adjustment in the Work Schedule by reason of suspensions
of the Work, changes in the Work, or other excusable delays, then the
Purchaser shall have the right, as its exclusive remedy for late
delivery, to collect from Supplier as liquidated lit damages,
beginning the 31st day thereafter, the sum of $5,000 per day for each
additional day until delivery is substantially complete, but not more
than $300,000. The collection of such liquidated damages shall be in
lieu of any other claims or remedies available at law or in equity
and shall be Purchaser's exclusive remedy, and Supplier's sole
liability, for late delivery unless delivery is not substantially
complete within 90 days of the delivery date specified in the Work
Schedule. In that event, Purchaser shall have the right, in lieu of
exercising its right to collect liquidated damages as provided
herein, to terminate the Agreement pursuant to the provisions of
Section 29.1 of this Agreement.
19. WARRANTIES
19.1 System: SUPPLIER EXPRESSLY WARRANTS THE SYSTEM AND THE WORK PERFORMED
HEREUNDER ONLY AS SET FORTH IN THIS ARTICLE 19. SUPPLIER MAKES NO
OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING THOSE OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SUPPLIER'S SOLE
OBLIGATION AND THE EXCLUSIVE REMEDIES OF PURCHASER FOR ANY BREACH BY
SUPPLIER OF ITS WARRANTIES SHALL BE AS EXPRESSLY STATED IN THIS
SECTION 19.
19.1.1 Supplier warrants that the System and all components thereof
(including but not limited to hardware and Software) furnished
by Supplier under this Agreement, whether or not manufactured
or developed by Supplier, shall: (i) be free from Defects,
Malfunctions or Nonconformities and material defects in
workmanship and material; (ii) be new, not from the surplus
market, and of the kind and quality specified in the
Specification; and (iii) perform the functions described in
the Specification in all material respects in conformance with
the Documentation for the p2riod described in Section 19.1.2.
19.1.2 The warranty period, during which all Defects, Malfunctions or
Nonconformities and other failures to comply with Section
19.1.1 must be discovered and reported to Supplier, shall
commence upon the date the 2000-hour Availability Test
commences and continue for one (1) year thereafter. The
warranty period, during which all Defects, Malfunctions or
Nonconformities and other failures to comply with Section
19.1.1 must be discovered and reported to Supplier, for any
Defects, Malfunctions or Nonconformities or other failures to
comply with Section 19.1.1 corrected by Supplier shall begin
upon delivery of the corrected item and shall continue for
ninety (90) days thereafter or until the end of the original
one (1) year warranty period, whichever occurs latest.
19.1.3 Any material Defect, Malfunction or Nonconformity or other
failure to comply with Section 19.1.1 that is discovered
during the warranty period and material damage to any other
part of the System resulting from such items and the revision
or repair by Supplier thereof, shall be corrected by Supplier,
at Supplier's sole expense with due diligence and dispatch as
required to make the System conform to the warranties stated
in this Article 19, including, but not limited to, any
necessary adjustments, modifications, repair or replacement,
changes to the Supplier's Software and Supplier's
Documentation, and including all necessary parts,
transportation charges and labor as may be necessary.
A. Supplier shall perform such corrective Work at the facility
where the System is installed to minimize the down time of
the System. Such Work shall be performed as follows: For
any Defect, Malfunction or Nonconformity or other failure
to comply with Section 19.1.1 that prevents the proper use
of the System, Supplier shall use reasonable commercial
efforts to provide corrective information within four (4)
hours after Purchaser's problem call, and, if correction at
the Jobsite is required, shall dispatch personnel within
twenty-four (24) hours after Purchaser's problem call to
perform such corrective Work. For Defects, Malfunctions or
Nonconformities and other failures to comply with Section
19.1.1 that are not material, including those Defects,
Malfunctions or Nonconformities and other failures to
comply with Section 19.1.1 that do not affect the use or
operation of the System, Supplier may group the correction
of such Defects, Malfunctions or Nonconformities and other
failures to comply with Section 19.1.1 as agreed to by
Purchaser.
19.2 Documentation: Supplier warrants that the Documentation shall be
substantially accurate and reasonably complete. Supplier shall, at
its sole expense, promptly correct any materially nonconforming
Documentation.
19.3 Third Party Equipment: In addition to the warranties set forth
in Section 19.1, Supplier shall use reasonable commercial
efforts to obtain warranties and support contracts from the
computer and peripheral equipment vendors which are materially
compatible with Supplier's obligations under this Article.
Supplier shall assign, to the extent permitted by the terms of
such warranties and support contracts with such vendors, such
warranties and support contracts to Purchaser, if requested to
do so.
19.4 Replacement Parts: Supplier warrants that replacement parts or
components for the System that are provided by Supplier shall
be interchangeable in fit and function with the original
System and free from defects in materials and workmanship for
a period of ninety days from date of the installation of such
replacement parts.
19.5 Work: All Work performed by Supplier pursuant to this
Agreement shall be performed in a workmanlike manner. In the
event that Purchaser notifies Supplier that any Work does not
meet the warranty in this Section 19.5 within 90 days after
such Work is performed, Supplier shall immediately correct
and/or re-perform such Work. The provisions of the warranty in
this Section 19.5 shall not limit or reduce any other
warranties set forth in this Article 19 and shall be in
addition thereto.
19.6 Conditions of Warranties: The warranties set forth in this
Article 19 are subject to the following conditions applicable
to the item for which a breach of warranty is claimed:
19.6.1 Purchaser shall give Supplier written notification
(or telephone notification followed up in writing) of
any Defect, Malfunction or Nonconformity or other
failure to comply with Section 19.1 .1 within a
reasonable time after Purchaser becomes aware of such
Defect, Malfunction or Nonconformity or other failure
to comply with Section 19.1.1.
19.6.2 Purchaser shall have the right to continue to operate
the System, or any part thereof, which may require
warranty correction or repair until such time as
Purchaser elects to remove such System or part
thereof from service; provided that Supplier shall
have no liability or obligation to Purchaser under
this Agreement or otherwise for any damage to the
System or liabilities caused by such continued
operation.
19.6.3 Purchaser shall operate and maintain the System in
accordance with the operation and, if applicable,
maintenance procedures agreed upon by the Parties;
provided and on condition that Supplier shall furnish
to Purchaser
such operating and maintenance procedures clearly
stated in writing and properly identified.
19.6.4 Completion of payments by Purchaser shall not release
Supplier from any of its warranty obligations.
19.6.5 Supplier does not warrant that (a) the Work will meet
Purchaser's requirements, (b) the operation of any
hardware or Software will be uninterrupted or error
free, or (c) any Defect, Malfunction or Nonconformity
in any hardware or Software is correctable or will be
corrected. The limited warranty provided in this
Agreement will not apply to, and Supplier will have
no warranty obligation with respect to, any Defect,
Malfunction or Nonconformity resulting from (1)
improper site preparation or maintenance by or on
behalf of Purchaser, other than by Supplier or its
Subcontractors, (2) calibration, maintenance,
modification or use by or on behalf of Purchaser,
other than by Supplier or its Subcontractors, (3)
operation of hardware outside of its published
environmental specifications, including any failure
of electric power, air conditioning or humidity
controls, (4) hardware, software, interfacing or
supplies installed or supplied by Purchaser, any
subcontractor to Purchaser other than Supplier or its
Subcontractors or any other owner or operator, or (5)
any cause other than ordinary use. In addition,
Supplier will have no warranty obligation to adjust
repair or replace any component if its adjustment,
repair or replacement is impractical because of its
location or installation.
20. SUPPLIER'S SYSTEM SUPPORT
20.1 Supplier shall make available replacement parts and hardware
and software support on System components for a period of
three (3) years from Acceptance. In the event, however, that
certain of these devices are not available due to obsolescence
and duplicates cannot be purchased at a reasonable price in
comparison with that of the original unit, the Supplier may
supply a device which has functionality and responsiveness
comparable to the obsolete device.
20.2 If, for administrative reasons, Purchaser orders replacement
parts for the System under a new purchase order instead of
under this Agreement, Supplier agrees to sell such replacement
parts under these general terms and conditions as set forth in
this Agreement.
20.3 Supplier further agrees that, if Supplier or a Subcontractor
cannot or no longer fulfills its maintenance and spare part
obligations, Supplier shall use reasonable commercial efforts
to provide or secure for Purchaser the necessary maintenance
services and, on a form, fit, and function basis, the required
spare parts.
20.4 Supplier shall not unreasonably interfere with normal operation
of the facilities where the System is installed, or with the
equipment, or the work of any contractors or subcontractors on
the premises where the System is installed ("System Premises").
When Supplier anticipates unavoidable interference, it shall so
notify the Authorized Representative as soon as possible, at
least five (5) days in advance whenever commercially possible.
The Authorized Representative shall determine, in advance,
whether such interference is unavoidable and shall, if
required, establish reasonable procedures under which the
interference shall be allowed. The Authorized Representative
shall have final determination of priorities in case of
conflicts with operations or work of others. Supplier shall not
operate any of the PX's equipment (other than the System) or
control devices or those of any other contractor or
subcontractor to Purchaser on the System Premises.
21. INFRINGEMENT PROTECTION
21.1 Royalties or other charges for any patent, trademark,
copyright, trade secret or other intellectual property or
proprietary information relating to the System or used in the
performance of this Agreement, shall be considered as included
in the contract price.
21.2 Supplier shall indemnify and save harmless Purchaser and its
successors and permitted assignees and transferees (all herein
referred to individually as "Infringement Indemnitee" and
collectively as "Infringement Indemnitees") against any and
all liabilities, judgments, costs, expenses, and damages,
which may be awarded against any of the Infringement
Indemnitees in any suit, action or proceeding brought against
any of the Infringement Indemnitees for infringement or
alleged infringement of any patent, trademark, copyright,
trade secret or any other intellectual property or proprietary
right, or any royalty or license agreement to which Supplier
or any Subcontractor is a party, by a court of competent
jurisdiction, arising out of the use by the Infringement
Indemnitee(s) of any component of the System furnished by
Supplier, in the ordinary course of its use as provided in
this Agreement for the purposes hereunder intended or the
exercise of any rights granted under Article 16 hereof,
provided, however, that Supplier shall have no obligation to
indemnify or save harmless any Infringement Indemnitee with
respect to any claim alleging that a process or integrated
system, including but not limited to the System, having the
characteristics or functionality described in the
Specifications or this Agreement infringes any patent,
trademark, copyright, trade secret or other intellectual
property or proprietary right, or any royalty or license
agreement, and provided further, however, that Supplier shall
have no liability for any claim of infringement (1) based on
any modified version of any such Licensed Software, Licensed
Documentation, Work Product or Development developed by, or on
behalf of, Purchaser other than by Supplier or its
Subcontractors; (2) based upon use in conjunction with another
product or service; (3) based upon Supplier's compliance with
Purchaser's specific
instructions, and provided further, that upon notice of a
claim of infringement, Purchaser shall immediately stop use of
the software, program, service, and/or other materials that
are the subject of the infringement claim. If any action,
claim or suit for infringement of any patent, trademark,
copyright, trade secret or other intellectual property or
proprietary right, or royalty or license agreement, be made or
instituted against the Infringement Indemnitee(s) as above
specified on account of the use of the System, (or any
component thereof) or the exercise of the granted rights,
Supplier shall assume the defense of such action, claim or
suit and all expenses incident to the defense thereof; but it
is expressly understood that in assuming the defense of such
claim(s) or suit(s) Supplier shall have control thereof;
provided that the Infringement Indemnitee(s) shall be kept
fully informed as to the progress thereof and have the right
to confer about and give advice and assistance regarding the
same.
21.3 In the event that: (i) there is an adjudication that the
System or any component or its use constitutes an infringement
described in Section 21.2; or (ii) the use of any such System
or component is enjoined; Supplier shall within thirty (30)
days from the occurrence of any of the aforestated events, at
its option and expense either:
(a) Procure for Purchaser and the PX the right to
continue using the System;
(b) Replace the System or infringing components with
non-infringing ones providing functionality
substantially equal to that contracted for hereunder;
or
(c) Modify them so that they become non-infringing while
providing functionality equal to that contracted for
hereunder.
Supplier's obligations under Section 21.3 shall be in addition
to those under Section 21.2.
21.4 Purchaser shall indemnify and save harmless Supplier, its
Subcontractors and their respective successors, assignees and
transferees (all herein referred to individually as
"Infringement Indemnitee" and collectively as "Infringement
Indemnitees") against any and all liabilities, judgments,
costs, expenses, and damages, which may be awarded against any
of the Infringement Indemnitees in any suit, action or
proceeding brought against any of the Infringement Indenmitees
for infringement or alleged infringement of any patent,
trademark, copyright, trade secret or any other intellectual
property or proprietary right, or any royalty or license
agreement to which Purchaser or any Authorized User is a
party, by a court of competent jurisdiction, arising out of
the use, manufacture or sale by the Infringement Indemnitee(s)
of the combination of components comprising the System or
having the characteristics or functionality described in the
Specifications or this Agreement. If any such action, claim or
suit for infringement of any patent, trademark, copyright,
trade secret or other intellectual
property or proprietary right, or royalty or license
agreement, be made or instituted against the Infringement
Indemnitee(s) as above specified on account of the use,
manufacture or sale of the System, (or any part thereof),
Purchaser shall assume the defense of such action, claim or
suit and all expenses incident to the defense thereof; but it
is expressly understood that in assuming the defense of
property or proprietary right, or royalty or license
agreement, be made or instituted, against the Infringement
Indemnitee(s) as above specified on account of the use,
manufacture or sale of the System, (or any part thereof),
purchaser shall assume the defense of such action, claim or
suit and all expenses incident to the defense thereof; but it
is expressly understood that in assuming the defense of such
claim(s) or suit(s) Purchaser shall have control thereof;
provided that the Infringement Indemnitee(s) shall be kept
fully informed as to the progress thereof and have the right
to confer about and give advice and assistance regarding the
same.
21.5 The indemnity obligations contained in Sections 21.2 and 21.4
are contingent upon the Infringement Indemnitee giving the
indemnifying party prompt written notice of any such claim,
full cooperation in the defense of any such claim, and the
right to defend against any such claim with counsel of the
indemnifying party's choosing and to settle and/or compromise
any such claims as the indemnifying party deems appropriate,
subject to the payment by the indemnifying party of any
settlement or compromise amount. Failure to do so will relieve
the indemnifying party of any obligation or liability pursuant
to this indemnification provision. The Infringement Indemnitee
shall not incur, nor shall the indemnifying party be liable
for, any of the Infringement Indemnitee's costs or expenses
related to any such claims, without the consent of the
indemnifying party. The Infringement Indemnitee shall have the
fight to employ its own counsel for any such claim, but the
fees and expenses of such counsel shall be borne by the
Infringement Indemnitee.
22. FITNESS FOR DUTY
22.1 Supplier and its Subcontractor personnel on the Jobsite shall:
(a) report for Work in a manner fit to do their job;
(b) not be under the influence of or in possession of any
alcoholic beverages or of any controlled substance
(except a controlled substance as prescribed by a
physician so long as the performance or safety of the
Work is not affected thereby); and
(c) not have been convicted of any serious criminal
offense which may have a material adverse impact on
Purchaser.
22.2 Searches by Purchaser's authorized representatives may be made
of lockers and storage areas on Purchaser-owned or leased
property at various times without prior announcement. Such
facility inspections may be conducted using detection dog
teams to search Work areas, and other common areas in order to
detect evidence of unlawful drug use or other Prohibited Items
(pyrotechnics, explosives,
firearms, weapons, or facsimiles thereof; alcohol and illegal
drugs). Prohibited Items must not be brought onto or kept on
such property.
22.3 Supplier shall advise its personnel of these requirements
before they enter on the Jobsite and shall immediately remove
from the Jobsite any person determined to be in violation of
these requirements. Supplier shall impose these requirements
on its Subcontractors. The aforestated requirements apply
solely to Jobsites and shall not be construed to reflect the
employment or contractual relationships of Supplier, its
employees, agents or Subcontractors.
23. INDEMNITY
23.1 Supplier shall, at its own cost, defend, indemnify and hold
harmless Purchaser, Pacific Gas and Electric Company, San
Diego Gas & Electric Company and Southern California Edison
Company, and their officers, agents, employees, assignors,
assignees, and successors in interest ("Indemnified Parties")
from and against any and all liability, damages, losses,
claims, demands, actions, causes of action, costs including
attorney's fees and expenses, or any of them, directly
resulting from the death or physical injury to any person or
physical damage to or losses of any physical property arising
out of or in connection with Supplier's negligence or willful
misconduct.
23.2 [Reserved]
23.3 Any tools, supplies, equipment or other items loaned by
Purchaser to Supplier (except where Purchaser directs such
use) shall be loaned solely as a convenience to Supplier.
Supplier agrees that such items are being loaned "as is", and
Purchaser make no representations as to the condition,
suitability for use, freedom from defect or otherwise in
relation to such items. Supplier shall, at its own cost,
defend, indemnify and hold harmless Purchaser, their officers,
agents, employees, assignors and assignee, and predecessors
and successors in interest, from and against any and all
liability, damages, losses, claims, demands, actions, causes
of action, costs including attorney's fees and expenses, or
any of them, resulting from the death or physical injury to
any person or physical damage to any physical property,
arising directly out of any negligence or willful misconduct
by Supplier with respect to any actual use by Supplier of any
tools, supplies, equipment or other items loaned by Purchaser
and having defects or claimed to be defective.
23.4 The indemnities set forth in this Article 23 shall not be
limited by the insurance requirements set forth in Article 24.
23.5 Purchaser shall, at its own cost, defend, indemnify and hold
harmless Supplier, its Subcontractors, and their officers,
agents, employees, assignors, assignees, and successors in
interest ("Indemnified Parties") from and against any and all
liability, damages, losses, claims, demands, actions, causes
of action, costs including attorney's fees and expenses, or
any of them, resulting from the death or injury to any person
or damage to or losses of any property arising out of or in
connection with such person's negligence or willful
misconduct.
23.6 Purchaser and the PX shall, at its own cost, defend, indemnify
and hold harmless Supplier, its Subcontractors, and their
officers, agents, employees, assignors, assignees, and
successors in interest ("Indemnified Parties") from and
against any and all liability, damages, losses, claims,
demands, actions, causes of action, costs including attorney's
fees and expenses, or any of them, arising out of or in
connection with the sale or marketing, the failure to sell or
market, or otherwise in connection with the commercial use of
the System.
23.7 The indemnity obligations contained in this Article 23 are
contingent upon the Indemnified Parties giving the
indemnifying party prompt written notice of any such claim,
full cooperation in the defense of any such claim, and the
right to defend against any such claim with counsel of the
indemnifying party's choosing and to settle and/or compromise
any such claims as the indemnifying party deems appropriate,
subject to the payment by the indemnifying party of any
settlement or compromise amount. Failure to do so will relieve
the indemnifying party of any obligation or liability pursuant
to this indemnification provision. The Indemnified Parties
shall not incur, nor shall the indemnifying party be liable
for, any of the Indemnified Parties' costs or expenses related
to any such claims, without the consent of the indemnifying
party. The Indemnitee shall have the right to employ its own
counsel for any such claim, but the fees and expenses of such
counsel shall be borne by the Indemnified Parties.
24. INSURANCE
24.1 Supplier shall maintain for the Work, and shall require that
each Subcontractor performing any service at the Jobsite
(except material delivery only) (hereinafter referred to as
"Jobsite Subcontractor") maintain, at all times during the
Work and at its own expense, valid and collectible insurance
as required below. This insurance shall not affect Supplier's
liability under the indemnity provisions of Article 23, and
shall not be terminated, expire, nor be materially altered
without giving thirty (30) days' advance written notice to
Purchaser.
As evidence that policies do in fact provide the required
coverages and limits of insurance listed below and that such
coverages and limits are in full force and effect, Supplier
shall furnish to Purchaser certificates of insurance on forms
acceptable to Purchaser. Supplier shall require each Jobsite
Subcontractor to provide such certificates of insurance to
Supplier. Certificates shall be furnished and made available
upon receipt of this Agreement or subcontract BUT IN ANY EVENT
PRIOR TO START OF THE WORK.
Any other insurance carried by Purchaser, its officers,
agents, and employees which may be applicable shall be deemed
to be excess insurance and Supplier's insurance shall be
deemed primary for all purposes despite any conflicting
provision in Supplier's policies to the contrary to the extent
of Supplier's indemnity obligations under this Agreement.
(i) Worker's Compensation, with statutory limits, as
required by the state in which the Work is performed,
and Employer's Liability Insurance with limits of not
less than $1,000,000.
(ii) Commercial General Liability Insurance, written on an
"occurrence" basis, including owner's and
contractor's protective, products/completed
operations, broad form property damage liability, and
contractual liability. Such insurance shall bear a
combined single limit per occurrence and annual
aggregate of not less than $2,000,000, exclusive of
defense costs as respects products and completed
operations, and a combined single limit per
occurrence and annual aggregate of not less than
$2,000,000, exclusive of defense costs as respects
all other coverages. Such insurance shall: (a)
acknowledge Purchaser, its officers, agents and
employees as additional insureds as regards
Supplier's acts or omissions; (b) be primary for all
purposes; (c) contain standard cross-liability or
severability of interest provisions; and (d) contain
no explosion, collapse, or underground exclusions to
the extent of Supplier's indemnity obligations under
this Agreement.
If Supplier elects, with the concurrence of
Purchaser, to use a "claims made" form of Commercial
General Liability Insurance. then the following
additional requirements shall apply: (a) The
retroactive date of the policy shall be at least one
day prior to the commencement of the Work; and (b)
Coverage for the Work shall be maintained in effect
for a period of not less than two (2) years after
completion of the Work, or a Supplemental Extended
Reporting Period of not less than two (2) years after
completion of the Work shall be included. These
requirements shall ensure that such insurance shall
enable Purchaser to recover for claims reported at
any time commencing with the start of Work and
continuing to a date not less than two years
following completion of the Work.
(iii) [Reserved]
(iv) Automobile Bodily Injury and Property Damage
Liability Insurance on an "occurrence" form with a
combined single limit per occurrence of not less than
$1,000,000. Such insurance shall cover liability
arising out of the use by Supplier and Subcontractors
of owned, nonowned, and hired automobiles in the
performance of the Work. Such insurance shall
acknowledge Purchaser as an additional insured and be
primary for all purposes.
24.2 Supplier shall report immediately to Purchaser and confirm in
writing any injury, loss, or damage incurred by Supplier or
Jobsite Subcontractors in connection with the Work, or its
receipt or notice of any claim by a third party, or of any
occurrence that might give rise to such claim.
24.3 If any of the required insurance coverages contain aggregate
limits applying to other operations of Supplier outside this
Agreement and such limits are diminished by any incident,
occurrence, claim, settlement or judgment against such
insurance, Supplier shall take immediate steps to restore such
aggregate limits or shall provide other insurance protection
for such aggregate limits.
25. SAFETY NOTIFICATIONS
25.1 Supplier shall provide (obtain from its Subcontractors, etc.)
a Material Safety Data Sheet (MSDS) for each chemical product
(e.g., lubricants, solvents, paints, cleaners, inhibitors,
etc.) prior to its use at the Jobsite and for any such product
that may be contained in any equipment furnished to Purchaser
as a part of the Work.
Such MSDSs shall be maintained at the Jobsite, shall be
subjected to review by Purchaser, and shall be turned over to
Purchaser upon acceptance of the Work and prior to
Contractor's leaving the Jobsite.
A revised MSDS shall also be obtained whenever the formulation
or evaluation of a product is changed.
All MSDSs shall comply with the Federal (29CFR1910.1200) and
California (8CAC5194) OSHA Hazard Communication Standards
without exception, and shall also include, but not be limited
to the following data. (If an item is not applicable,
Contractor shall so state.)
Date of MSDS(s) preparation.
Purchaser's Purchase Order number(s).
Supplier's and manufacturer's catalog number for the
product and its container size and type.
All MSDS's shall be addressed to:
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(To be provided)
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25.2 Container Labeling Requirements:
Prior to shipment, Supplier shall and shall require its Subcontractors
to, label all containers of hazardous materials, as defined by the
State of California's and the Federal Government's OSHA programs. Such
labels shall include, as a minimum:
(a) The specific chemical identity of the substance. If the
product is a mixture, list the components present in
concentrations of 1% or more, or 0.1% or more if a carcinogen.
(b) The name and address of the manufacturer, importer or other
distributor.
(c) Warning statements of the substance's Flammability,
Corrosivity, Toxicity, Reactivity, Primary Routes of Bodily
Entry and Target Organs affected.
(d) Emergency and first aid procedures.
(e) The potential for fire and/or explosion.
(f) Any generally known precautions for safe use and handling of
the substance.
These labels shall be clearly legible and capable of withstanding
normal shipping and handling while maintaining legibility of ALL
information printed thereon.
Any container at the Jobsite without said label, or with illegible
information thereon, is subject to rejection and, at the sole
discretion of Purchaser, may be removed from the Jobsite and disposed
of at an approved dump site at Supplier's expense.
25.3 California's Toxic Enforcement Act Requirements:
Supplier is hereby warned that exposure to chemicals known to the State
of California to cause cancer, birth defects, or other reproductive
harm may occur at Purchaser's facilities. Upon request, Purchaser shall
make available to the
Supplier, and its employees, a Material Safety Date Sheet
(MSDS) for such chemical exposures at the Jobsite. Supplier
shall inform its Subcontractors of the above information.
From the time that Supplier enters Purchaser facilities or
begins Work until the time the Work is completed, Supplier
shall, and shall require its Subcontractors to, issue warnings
to personnel on the Jobsite, the public, and Purchaser s
personnel about exposure to chemicals known to the State of
California to cause cancer, birth defects, or other
reproductive harm. Supplier shall warn Purchaser of any
exposure which may continue after Supplier has completed the
Work. Such warnings may take the form of a Material Safety
Data Sheet.
26. LIMITATION OF LIABILITY
Except in the case of a breach of Article 15, neither Purchaser,
Supplier nor any agent, employee, Subcontractor, supplier or licensor
of Purchaser or Supplier shall be liable for indirect, incidental,
special, or consequential damages, whether such damages arise in
contract, tort (including negligence) or otherwise, including, but not
limited to, lost profits, and, in the case of Purchaser, damages
arising out of commitments to Subcontractors, or personal service
contracts unless such contracts are expressly F authorized in writing
by Purchaser.
Notwithstanding anything to the contrary in this Agreement, Supplier's
and its agents, employees', Subcontractors', suppliers', and licensors'
cumulative liability to Purchaser, regardless of whether such liability
is based on breach of contract, tort, strict liability, breach of
warranties, failure of essential purpose or otherwise, under this
Agreement or with respect to the Services shall be limited to the
amount actually paid by Purchaser to Supplier under this Agreement. In
addition, Purchaser's recourse with respect to any liability or
obligation of Supplier hereunder shall be limited to the assets of
Supplier, and Supplier shall have no recourse against, and shall bring
no claim against, any member or employee of Supplier or any assets
thereof.
In no event shall Supplier, its agents, employees, subcontractors,
suppliers or licensors be liable for preexisting conditions, delays,
curtailment of plant operations, process failure, pollution or
environmental damage or fines levied by regulatory agencies as a result
of pollution, occupational disease or toxic torts, loss of revenue or
profit, loss of use, loss of power, damages suffered by Purchaser, any
Authorized User or the PX's customers for service interruptions, the
marketing or sale, or failure to market or sell, electricity, costs of
capital or costs of replacement power.
27. DISPUTES
27.1 Any dispute pertaining to this Agreement, other than a dispute
arising under Section 15 or Section 16, which cannot be
resolved between the Supplier's Representative and the
Authorized Representative shall be referred to Purchaser
and the Supplier for resolution. If the Parties cannot reach
an agreement within a reasonable period of time, the dispute
shall be resolved as provided in Section 27.2. Pending
resolution of a dispute, Supplier shall continue to perform
the Work to the extent not affected by the dispute as directed
by the Authorized Representative and Purchaser shall continue
to make payments for the undisputed items as set forth in this
Agreement.
27.2 The Parties shall attempt in good faith to resolve any dispute
arising out of or relating to this Agreement promptly by
negotiations between an officer of Purchaser or his or her
designated representative and an officer or executive of
similar authority of Supplier. Either Party may give the other
Party written notice of any dispute. Within twenty (20) days
after delivery of said notice, the executives shall meet at a
mutually acceptable time and place, and thereafter as often as
they reasonably deem necessary to exchange information and to
attempt to resolve the dispute. If the matter has not been
resolved within thirty (30) days of the fast meeting, the
dispute shall be submitted first to voluntary mediation, and
if mediation is not successful, then to binding arbitration,
in accordance with the dispute resolution procedures set forth
in Annex F hereto. Judgment on any arbitration award may be
entered in any court having proper jurisdiction.
Each Party is required to continue to perform its obligations
under this Agreement pending final resolution of any dispute
arising out of or relating to this Agreement to the extent
such obligations are not the subject of the dispute.
28. TERMINATION AT WILL
28.1 Purchaser may, at any time, terminate for convenience (a
"termination at will") of Purchaser this Agreement, the Work,
or any portion of the Work, by written notice to Supplier.
Such notice shall be confirmed by an Amendment.
28.2 Upon receipt of such notice of termination at will, Supplier
shall stop performance of the terminated Work and take action
as directed by Purchaser to carry out such termination.
28.3 In such event of termination at will, Purchaser shall pay to
Supplier: (i) the payments due for Work completed and costs
incurred by Supplier for work in progress including overhead
and reasonable profit on such amounts, prorated to the
effective date of termination; plus (ii) any reasonable costs
necessarily incurred in carrying out such termination as
directed by Purchaser; plus (iii) a termination fee of
$2,500,000. Supplier shall furnish reasonable supporting data
for any claims for items (i) and (iii) above.
28.4 Purchaser shall take possession of and title to any System
fabricated or materials procured, and any Software or
Documentation developed and shall receive a
license (pursuant to Article 16 or Annex C) to any of
Supplier's Software and Supplier's Documentation which are
fully paid for in the termination payment.
28.5 The provisions of this Article 28 shall be Supplier's sole
remedy for termination at will of this Agreement or the Work
or any portion thereof.
28.6 Any termination under this Article 28 shall be without
prejudice to any other rights of either Party which may have
accrued prior to termination.
29. DEFAULTS AND CANCELLATION FOR CAUSE
29.1 If Supplier: (i) fails materially to perform any of its
material obligations under this Agreement and fails either (A)
to cure a material failure of performance within thirty (30)
calendar days from Purchaser's notice of such failure, or (B)
in the event Supplier notifies Purchaser that such failure
cannot reasonably be cured within thirty (30) calendar days
and provides a schedule for curing such failure, to proceed
diligently to cure such failure in accordance with such
schedule; or (ii) fails to deliver the System or components
thereof on or before the delivery date specified in the Work
Schedule or if all of the conditions of Acceptance have not
been met on or before 91 days after the delivery date
specified in the Work Schedule, then Purchaser may: (a) except
as provided in Section 18.7, withhold payment of any further
moneys which may be due Supplier until the default is cured,
if another cure period is allowed by Purchaser; and/or (b)
declare Supplier to be in default of this Agreement by notice
to Supplier in writing; and Purchaser shall in either case be
entitled to cancel this Agreement for cause, in whole or in
part. Any cancellation pursuant to this Article 29 shall not
be deemed a "termination at will" within the meaning of
Article 28.
29.2 In the event Purchaser cancels this Agreement for cause
pursuant to Section 29.1, Supplier shall stop the Work (or the
portion thereof canceled by Purchaser) and return all related
data provided by Purchaser to the extent not needed to
complete any uncancelled portions of the Work; and at
Purchaser's sole option Supplier shall either: (a) deliver to
Purchaser all portions of the System, and, upon payment in
full for all parts of the System which have been completed and
which do not constitute the default upon which termination is
based, grant an appropriate license to Purchaser in and to ALL
intellectual property rights in Software and Documentation
developed under this Agreement, and license the portion of the
Suppliers Software and Supplier's Documentation which has been
paid for to date (such license not to contain rights of
Purchaser or obligations of Supplier in addition to, or
different from, those in Article 16), and in such event
Purchaser shall have the right to have the System completed by
others and to use the Supplier's intellectual property for
that purpose (provided the party performing the Work in
Supplier's place executes a nondisclosure agreement); or (b)
at any time, after the expiration of the cure period and
before such default has been fully cured by Supplier,
Purchaser may cancel such part of this Agreement which
Purchaser has not yet Accepted or cancel the delivery thereof
without charge or obligation, by providing written notice to
Supplier. Cancellation of any uncompleted portion of this
Agreement shall become effective to the extent and on the date
set forth in Purchaser's written notice. Purchaser's right to
cancel this Agreement shall also include the right to cancel
any and all deliveries not already made.
29.3 If Purchaser fails materially to perform any of its material
obligations under this Agreement and fails either (A) to cure
a material failure of performance within thirty (30) calendar
days from Supplier's notice of such failure, or (B) in the
event Purchaser notifies Supplier that such failure cannot
reasonably be cured within thirty (30) calendar days and
provides a schedule for curing such failure, to proceed
diligently to cure such failure in accordance with such
schedule, then Supplier may: (a) cease Work until the default
is cured, if another cure period is allowed by Supplier;
and/or (b) declare Purchaser to be in default of this
Agreement by notice to Purchaser in writing; and Supplier
shall in either case be entitled to cancel this Agreement for
cause, provided that prior to cancelling this Agreement for
cause, Supplier shall invoke the provisions of Section 27 to
attempt to resolve the matter at issue.
30. NON-WAIVER
None of the provisions of this Agreement shall be considered waived by
either Party unless such waiver is specifically stated in writing, and
signed by the authorized representative of the Party waiving the
provision(s).
31. ASSIGNMENT
31.1 Subject to Section 31.4, neither party shall assign this
Agreement or any part thereof or interest therein, without the
prior written consent of the other party, and any assignment
without such consent shall be void and of no effect.
31.2 Supplier shall notify Purchaser of the sale or transfer of
control of its business to another entity prior thereto.
31.3 If either Party enters into any voluntary or involuntary
receivership, bankruptcy or insolvency proceedings, the other
Party shall have the right to cancel this Agreement under the
default provisions pursuant to Article 29.
31.4 Purchaser reserves the right to assign and delegate its entire
rights, obligations and interest, under this Agreement, or any
portion thereof, to any person, legal or natural, designated
by the CPUC or the Trustee to succeed to the rights and to
perform the functions of Purchaser. Such an assignment and/or
delegation shall become effective upon notice thereof to the
Supplier.
31.5 Upon any valid assignment and delegation hereunder, the
assignee shall thereby assume all rights and obligations of
the assignor and the assignor shall be relieved of all
obligations to supplier, including those occurring before the
assignment.
32. SEVERABILITY
Should any section, provision or portion of this Agreement be held to
be invalid, illegal or void, by a court of proper jurisdiction then and
in such event any such section, provision or portion shall be deleted
from this Agreement and this Agreement shall be read as though such
invalid, illegal or void section, provision or portion was never
included herein, and the remainder of this Agreement shall nevertheless
subsist and continue in force and effect until such lime as the
remaining provisions shall be modified or void, as agreed to by the
Parties.
33. NOTICES
Any notice, demand or request made pertaining to this Agreement shall
be in writing, shall include this Agreement number and the project
name, and shall be deemed properly given or made if delivered in person
or sent by First Class mail, postage prepaid, or certified mail, to:
Purchaser:
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Telephone
Facsimile
Supplier:
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Telephone
Facsimile
34. GOVERNING LAW
This Agreement shall be interpreted, governed and construed under the
laws of the State of California as if executed and to be performed
wholly within the State of California.
35. SECTION HEADINGS
Section headings appearing in this Agreement are for convenience only
and shall not be construed as interpretations of text.
36. SURVIVAL
Notwithstanding completion or termination of the Work or of this
Agreement, the Parties shall continue to be bound by the provisions of
Sections 15, 16, and 23, which are expressly stated to survive such
completion or termination.
37. CONFLICT OF INTEREST/BUSINESS ETHICS
37.1 No Existing Conflicts Of Interest: Supplier represents and
warrants that it has no existing business or other
relationship, contract or employment which could result in a
material conflict with the interests of Purchaser or in any
way materially compromise the Work to be performed under this
Agreement, and that it will perform the Work in accordance
with this Agreement without regard to any relationship or
obligation that Supplier or any Subcontractor may have with
any third party not a party hereto. Examples of such conflicts
include, but are not limited to, having any direct or indirect
affiliation with, or ownership interest in or by, any other
party or the Trustee or any member or member-representation of
any advisory committee to or advisor of the Trustee, provided,
however, that such conflicts shall not include any business or
other relationship pursuant to which Supplier is performing
services for the Trustee or any member or
member-representation of any advisory committee to or advisor
of the Trustee in the ordinary course of Supplier's business.
37.2 Reasonable Care: Supplier shall exercise reasonable care and
diligence to prevent any actions or conditions which could
result in a conflict of interests within the meaning of
Section 37.1.
37.3 Other Employment: During the term of this Agreement, Supplier
or its employees will not accept any employment or engage in
any work which creates a material conflict of interest with
Purchaser or in any way materially compromises the Work to be
performed under this Agreement within the context of
Supplier's or Purchaser's published policies and rules on
business ethics, a copy of which are attached hereto as Annex
G.
37.4 Gifts: Supplier, its employees, agents or Subcontractors shall
not offer or cause to be offered payments or loans, or gifts,
entertainment, services, benefits or considerations of more
than a nominal value to Purchaser, the Trustee or any advisor
or advisory committee to the Trustee, or to any of their
employees, families, vendors, or subcontractors.
37.5 Accurate Documentation: All financial information, reports,
billings, and other documents rendered shall properly reflect
the facts to the extent Supplier has knowledge thereof about
all activities and transactions handled for the account of
Purchaser.
37.6 Notification: Supplier shall immediately notify Purchaser of
any and all violations of this Article 37 upon becoming aware
of such violation.
37.7 Availability Of Information: Purchaser's duly authorized
representatives shall have, during the term of this Agreement
and for three (3) years thereafter, access at all reasonable
times to all of the Supplier's and its Subcontractors'
personnel, accounts and records of all description, including
but not limited to computer files, pertaining to this
Agreement for the purpose of verifying amounts charged under
this Agreement.
The Supplier and its Subcontractors shall preserve all such
accounts and records for a period of three years after the
term of this Agreement. Purchaser's duly authorized
representatives shall have the right to reproduce any such
accounts and records.
37.8 Subcontractors: Supplier shall include the necessary
provisions in its Subcontracts to ensure that its
Subcontractors comply with this Article 37.
37.9 No Hire: During. the term of this Agreement and for 12 months
thereafter, each Party agrees that no employee of it or any of
its Subcontractors who performs part -- of the Work will offer
employment with such Party or any of its subsidiaries to any
personnel of the other Party or its Subcontractors who provide
services related to this Agreement within the preceding 12
months without the prior consent of the other Party.
38. EQUAL OPPORTUNITY LAWS
38.1 Federal Regulations: During the performance of this Agreement
and to the extent they may be applicable to this Agreement,
the Supplier agrees to comply in all material respects with
all laws, orders, and regulations included by summary or
reference in the following Sections:
38.2 Equal Employment Opportunity - Executive Order No. 11246. 41
CFR Part 60-1: (Contracts of $10,000 or more) Provides that
Supplier will not discriminate against any employee or
applicant for employment because of race, color, religion,
sex, or national origin and further that Supplier shall take
affirmative action to ensure that applicant and employees are
treated without regard to their race, color, religion, sex, or
national origin.
38.3 Certification of nonsegregated facilities - 41 CFR 60-1.8:
(Contracts of $10,000 or more) Supplier hereby certifies that
Supplier will not maintain or provide segregated facilities
for its employees and will not permit its employees to perform
their services at any location under Supplier's control, where
segregated facilities are maintained.
38.4 Construction Contractors - Affirmative Action Requirements 41
CFR Part 60-4: (Contracts exceeding $10,000) Establishes
procedures for soliciting and awarding federal or federally
assisted construction contracts.
38.5 Listing of Employment Openings--Executive Order 11701:
(Contracts of $10,000 or more) Supplier will list employment
openings with the Employment Development Department in
accordance with the Vietnam Era Veterans Readjustment
Assistance Act of 1974 and Executive Order 11701. The
affirmative action clause set forth in 41 CFR 60-250.4 is
incorporated herein by reference.
38.6 Employment of the Handicapped--Rehabilitation Act of 1973. 41
CFR Part 60-741: (Contracts of $2,500 or more) The affirmative
action clause and the regulations contained in 41 CFR
60-741.4, and Section 504 of the Rehabilitation Act of 1973,
as amended (29 U.S.C. Section 794), which prohibits
discrimination on the basis of handicaps, are incorporated by
reference in this Agreement.
38.7 Filing Program Summaries and Preparing Affirmative Action
Plans--Executive Order 11246. 41 CFR Part 60-2: (Contracts of
$50,000 or more) If the value of this Agreement is $50,000 or
more and the Supplier has 50 or more employees, the Supplier
agrees to file appropriate affirmative action program
summaries in accordance with existing regulations and develop
and maintain a current written affirmative action compliance
program at each of its establishments.
38.8 Vietnam Era Veterans Readjustment Assistance--Act of 1974.
Title 41. Chapter 60. Part 250: (Contracts of $10,000 or more)
The affirmative action clause and the regulations pertaining
to the employment of disabled veterans and veterans of the
Vietnam era are incorporated by reference in this Agreement.
38.9 Americans With Disabilities Act--42 U.S.C. Section 12101. et
seq.: Supplier agrees that, to the extent it may be applicable
to this Agreement, Supplier shall comply with the Americans
with Disabilities Act.
38.10 Purchaser's Policy: It is Purchaser's policy that Women,
Minority, and Disabled Veteran Business Enterprises (WMDVBEs)
shall have the maximum practicable opportunity to participate
in providing the products and services Purchaser purchases.
38.11 For all Purchaser contracts, the Supplier agrees to comply,
and to require all Subcontractors and sub-subcontractors to
comply, with Purchaser's Equal Opportunity Purchasing Program
(EOPP) policy, as set forth in Exhibit I hereto. The Supplier
shall provide to each prospective Subcontractor a copy of
Exhibit 1.
38.12 In addition, for contracts exceeding $500,000 (or $1 Million
for construction contracts), the Supplier must comply with the
Policy Regarding Utilization of Small Business Concerns and
Small Disadvantaged Business Concerns, as described in Exhibit
2 hereto. The Subcontracting Plan for these contracts must
include provisions for implementing the terms prescribed in
Exhibit 2.
38.13 Small Business, and Small Disadvantaged Business
Subcontracting Plans are not required for small business
contractors, personal service contracts, contracts that will
be performed entirely outside of the United States and its
territories, or modifications to existing contracts which do
not contain subcontracting potential.
38.14 For all Purchaser contracts, the Supplier shall act in
accordance with the Subcontracting Plan in the performance
of the Work and in the award of all subcontracts.
39. INJURY AND ILLNESS PREVENTION PROGRAM
In the performance of the Work under this Agreement, Supplier
acknowledges that it has an Injury and Illness Prevention Program which
meets the requirements of all applicable laws and regulations,
including but not limited to Section 6401.7 of the California Labor
Code. Supplier shall ensure that any Subcontractor hired by Supplier to
perform any portion of the Work under this Agreement shall also have an
effective Injury and Illness Prevention Program. If the Supplier has
any employees in California, even if those employees do not perform
Work under this Agreement, the attached Compliance Certificate (Exhibit
3) shall be executed by the person with the authority and
responsibility for implementing and administering such Injury and
Illness and Prevention Program.
40. ENTIRE AGREEMENT
This Agreement contains the entire agreement and understanding between
the Parties and merges and supersedes all prior representations and
discussions pertaining to this Agreement, including Supplier's proposal
(except as specifically included). Any changes, exceptions or different
terms and conditions proposed by Supplier, or contained in Supplier's
acknowledgment of this Agreement, are hereby rejected and shall have no
force or effect unless expressly stated in this Agreement or
incorporated by an Amendment.
41. LICENSE AGREEMENTS
Purchaser agrees to execute and deliver to Supplier, and to be bound
by, each of the license agreements attached hereto as Annex C.
42. THIRD PARTY BENEFICIARIES.
The Parties agree that each of Perot Systems Corporation, Ernst & Young
LLP, and AJ3B Power T&D Company, Inc. will be a Subcontractor of
Supplier and each of such persons and each third party owner of
Licensed Software is intended to be a third party beneficiary of this
Agreement and that the rights of Supplier and the obligations of
Purchaser shall, with respect to any subcontracting or licensing
agreement entered into between Supplier and any such Subcontractor or
between any such subcontractor and a third party owner of Licensed
Software with respect to this Agreement, inure to the benefit of that
Subcontractor. The Parties agree that this Agreement is for the benefit
of the Parties hereto and the persons named above, and is not intended
to confer any rights or benefits on any other third party, including
any employee of either Party, and that there are no other third party
beneficiaries to this Agreement or any part or specific provision of
this Agreement.
43. EXECUTION
[Supplier's Name]
-------------------------------
Accepted By: Date:
------------------------- -------------------
[1stname] [lstname]
Title:
---------------------------
PURCHASER:
Accepted By: Date:
------------------------- -------------------
[1stname] [lstname]
Title:
---------------------------
Each of the undersigned persons, jointly and severally, hereby becomes surety
for and irrevocably and unconditionally guarantees to Supplier the full and
prompt payment by Purchaser of all amounts when due under Article 9. Supplier
shall not be required to proceed first against Purchaser, WEPEX or any other
person, firm or corporation, whether primarily or secondarily liable, before
resorting to such persons for payment.
POWER EXCHANGE:
Accepted By: Date:
------------------------- -------------------
[1stname] [lstname]
Title:
---------------------------
SOUTHERN CALIFORNIA EDISON:
Accepted By: Date:
-------------------------------- -----------------
[1stname][lstname]
Title:
-----------------------------
PACIFIC GAS & ELECTRIC COMPANY:
Accepted By: Date:
-------------------------------- -----------------
[1stname][lstname]
Title:
-----------------------------
SAN DIEGO GAS & ELECTRIC COMPANY:
Accepted By: Date:
-------------------------------- -----------------
[1stname][lstname]
Title:
-----------------------------
ANNEX A
SPECIFICATION
(TO BE PROVIDED)
ANNEX B
PRICE
(SEE COMMERCIAL PROPOSAL)
ANNEX C
LICENSE AND SOFTWARE MAINTENANCE AGREEMENTS
(SAMPLE ABB AGREEMENT INCLUDED; OTHERS TO BE PROVIDED)
ABB POWER T&D COMPANY INC.
Maintenance Agreement
Description, Price and Terms for Maintenance Support Services
1. Scope of Service
ABB Power T&D Company Inc., B Systems Control (ABB SC) will provide
maintenance service for the software supplied by ABB SC to [Customer Name]
("Client"). These services provide the Client with the support to maintain
and upgrade the software/system with the latest applicable versions
available from ABB SC. The license to use the latest applicable version of
the software (the Program) will be made available to the Client under this
Agreement. Terms and conditions regarding the use of the original License
Agreement, including non-disclosure, for the Program remain applicable.
Maintenance services are composed of two parts: Basic System Support and
Consulting! Implementation Services. ABB SC offers the Client a choice
between four service grades that provide various combinations of basic
support and consulting services. The Client can select the service grade
that best suits their needs and requirements. Basic System Support is
described in Section 1.1. A description of the services provided under the
Consulting/Implementation part is included in Section 1.2.
1.1 BASIC SYSTEM SUPPORT
Basic System Support service will guarantee the Client the ready
availability of ABB SC's technical staff and computer facilities to respond
to Client requests for Casual Consulting Services, Program Fixes, Program
Upgrade Notification and Program Upgrades. A complete up-to-date
knowledge of the Client's software versions and configuration will be
maintained in order to provide an adequate service response. The Basic
System Support Services include the following:
o CASUAL CONSULTING SERVICE
Casual Consulting Service includes Licenser's interpretation of user
documentation or guidance on the Program's intended, normal use via
telephone or facsimile. The following items, among others, are specifically
excluded from Casual Consulting:
o Interpretation of the Program's results.
o Supply of typical or representative data.
o Assistance with computer hardware and peripheral questions not
related to the Program's use.
o Assistance with computer operating system questions not directly
pertinent to the Program
o Data debugging and/or correcting.
o Services necessitated as a result of any cause other than the
Program's ordinary, proper use by Licensee, including but not
limited to neglect, abuse, unauthorized maintenance, or
electrical, fire, water, or other damage.
o Special applications of the Program.
The foregoing items and all others not within Casual Consulting scope may
be provided under Consulting/Implementation Services and are subject to
additional charges by Licenser.
ABB SC experience in field support has shown that most of the problems that
appear in the system are a consequence of a misinterpretation of operating
procedures or system documentation or to the lack of specific knowledge of
a particular system feature. A high percentage of these problems are
efficiently resolved by means of telephone consultations with the
appropriate technical contact. ABB SC will maintain a short response time
for incoming trouble calls. Trouble Calls made during off-hours will be
forwarded by an answering service to the appropriate technical staff.
o PROGRAM FIXES
All ABB SC software undergoes extensive tests in factory and at the
installation site. This minimizes the possibility of the existence of
problems in the software. However, if such problems are encountered and
reported, they will be investigated and fixed at ABB SC. These minor
corrections will be made available by AI3B SC to clients covered under
maintenance support.
o PROGRAM UPGRADE NOTIFICATION
Versions of the different software functions provided with the ABB SC
system are continuously improved and extended. This service provides the
Client with timely notification of the changed/upgraded features and the
associated descriptive information which could apply to Client system. ABB
SC will notify the Client of two types of updates:
a) Upgrades refer to releases containing improvement, fine tuning and
minor extensions of functions using the same technology which the
Client has purchased.
b) Enhancements refer to releases considered as new modules or new
products which may involve the application or use of new technology or
algorithms to known functions.
o PROGRAM UPGRADES
New versions of or additions to the Program developed by Licenser in an
effort to improve the Program's operating performance without changing its
basic function are provided under basic system support. Program Upgrades
include modifying the Program to run on improved or enhanced versions of
the reference computer or operating system, as well as altering the
Program's capacity, function, execution time, application, input/output, or
ease of use.
1.2 Consulting/Implementation Services
The Consulting/Implementation Services provide for support over and above
those described in Section 1.1 as Casual Consulting and comprise the
following services:
o GENERAL CONSULTING SERVICES
System functionality requires change and expansion with time. ABB SC system
is very flexible for adding and modifying functionality. This service will
provide the Client with a detail analysis of how a required improvement may
be best implemented in the system.
o PROGRAMMING SERVICES
As a result of the Consulting Services the Client may decide to hire ABB SC
for the implementation of the required changes. Depending of the nature of
the change, ABB SC can provide this service on either a time and material
or a fixed cost basis.
o UPGRADE/ENHANCEMENT IMPLEMENTATION
As a result of an upgrade notification, the Client may decide to hire ABB
SC for the implementation of the required change. Depending on the nature
of the upgrade, ABB SC can provide this service on either a time and
material or a fixed cost basis.
o OPERATING SYSTEM UPGRADES
ABB SC supports operating system upgrades services to the Client which
cover both the main operating system and layered products upgrade as well
as any modifications to ABB SC software which may be necessary as a
consequence of the operating system upgrade.
o CONFIGURATION ENGINEERING/CONSULTING
During the life of the system, it is normal to extend the initial system
configuration by adding or replacing processors, peripherals, memory, etc.
ABB SC provides consulting services to determine:
a) Best equipment choice for the desired additional
capacity/functionality.
b) Effect if any, on ABB SC system software configuration.
c) Required ABB SC additional software modules if any.
2. STAFF
ABB SC shall supply the services of professional staff required to carry
out the tasks requested by the Client.
ABB SC will designate primary and secondary contacts for the Client for
maintenance and support.
The Client will designate a qualified maintenance contact who will act as
Client's liaison with ABB SC on all matters pertaining to maintenance and
support.
3. SERVICE PROCEDURE
The Client will report a service request by telephone followed by a
confirming detailed written report or description of the task along with
supporting material requested by ABB SC's primary contact, necessary for
investigating the problem.
ABB SC will allocate the staff and computer resources required to respond
to the service request. Client agrees to provide the necessary assistance
and information to assist ABB SC in providing the required service.
4. SCOPE OF SUPPORT
ABB SC offers four service grades, designated Platinum, Gold, Silver, and
Bronze. The following describes the support and services provided with each
service grade.
4.1 PLATINUM SERVICE GRADE
ABB SC provides 300 hours of pre-allocated support hours to clients with
Platinum service grade that can be used for:
o Casual Consulting Service.
o Program Fixes.
o Program Upgrade Notification.
o Program Upgrades.
o General Consulting Services.
o Programming Services.
o Upgrade and Enhancement Implementation.
o Operating System Upgrades.
o Configuration Engineering and Consulting.
o Four (4) hour response time to trouble calls.
In addition, the following services and benefits are provided:
o Client's software will be maintained on a Field Machine at ABB
SC.
o Priority access to technical staff
o Thirty (30) day trial use of new ABB SC software products.
o Fifteen (15) percent discount on new ABB SC product license fees.
All services provided beyond the pre-allocated support hours will be
offered on a time and material or fix price basis.
The source code for Program Upgrades will be provided free of charge to
clients with the Platinum service grade. Program Enhancements are offered
to clients at an additional charge.
Platinum service requires a dial-up or data link connection between ABB SC
support site and the Client site.
4.2 GOLD SERVICE GRADE
ABB SC provides 200 hours of pre-allocated support hours to clients with
Gold service grade that can be used for:
o Casual Consulting Service.
o Program Fixes.
o Program Upgrade Notification.
o Program Upgrades.
o General Consulting Services.
o Programming Services.
o Upgrade and Enhancement Implementation.
o Operating System Upgrades.
o Configuration Engineering and Consulting.
o Four (4) hour response time to trouble calls.
In addition, the following services and benefits are provided:
o Thirty (30) day trial use of new ABB SC software products.
o Ten (10) percent discount on new ABB SC product license fees.
All services provided beyond the pre-allocated support hours will be
offered on a time and material or fix price basis.
The source code for Program Upgrades will be provided free of charge to
clients with the Gold service grade. Program Enhancements are offered to
clients at an additional charge. Gold service requires a dial-up or data
link connection between ABB SC support site and the Client site.
4.3 SILVER SERVICE GRADE
ABB SC provides 100 hours of pre-allocated support hours to clients with
Silver service grade that can be used for:
o Casual Consulting Service.
o Program Fixes.
o Program Upgrade Notification.
o Program Upgrades.
o General Consulting Services.
o Programming Services.
o Upgrade and Enhancement Implementation.
o Operating System Upgrades.
o Configuration Engineering and Consulting.
o Four (4) hour response time to trouble calls.
In addition, the following services and benefits are provided:
o Five (5) percent discount on new ABB SC product license fees.
All services provided beyond the pre-allocated support hours will be
offered on a time and material or fix price basis.
The source code for Program Upgrades will be provided free of charge to
clients with the Silver service grade. Program Enhancements are offered to
clients at an additional charge. Silver service requires a dial-up or data
link connection between ABB SC support site and the Client site.
4.4 BRONZE SERVICE GRADE
As part of the Bronze service grade, ABB SC provides the following
services:
o Program Fixes.
o Program Upgrade Notification.
o Eight (8) hour response time to trouble calls.
All services will be offered on a time and material or fix price basis.
The source code for Program Upgrades and Enhancements are offered to
clients with the Bronze service grade at an additional charge.
Bronze service requires a dial-up or data link connection between ABB SC
support site and the Client site.
5. PRICES AND TERMS
The following describes the fees and terms associated with the various
service grades.
5.1 PRICE
The annual fees for the standard service grades are as listed in the
current ABB SC Standard Maintenance Support Fees.
These fees do not include any expenses associated with travel to the
Client's site or work beyond the number of hours specified or provided for.
The fees are updated annually to factor in escalators including but not
limited to: (a) the Consumer Price Index for Urban Areas (CPI-U) as
published by the U.S. Department of Labor, Bureau of Labor Statistics; (b)
the support fees for embedded third party software; (c) development
recovery rate.
The fee for services beyond the specified or provided hours are determined
based on the current ABB SC Standard Labor Rates.
5.2 TERM OF MAINTENANCE SERVICE
Maintenance service is provided for periods of twelve (12) calendar months.
5.3 TERMS OF PAYMENT
The Client agrees to pay ABB SC the fees stated herein before start of each
maintenance service period by wire-transfer. All fees are expressed
exclusive of any taxes. Any applicable taxes will be paid by the Client.
5.4 EXPENSES
All actual and verifiable travel and subsistence expenses, in excess of
described above, when visiting Client premises, and the cost of shipping
materials to the Clients premises will be paid by the Client. The excess
travel expenses will be based on travel from the home base location of the
relevant staff. A 20% processing fee will be added to all the travel and
living expenses.
6. LIABILITY
The maximum liability of ABB SC for any direct damages sustained by the
Client under this Agreement arising from ABB SC's negligence shall in no
circumstance exceed the amount of the annual maintenance fee for Basic
System Support payable by the Client to ABB SC. The Client and ABB SC shall
in no event be liable one to the other for loss of revenue, profit,
anticipated profit or indirect, incidental, special or consequential
damages, including but not limited to, any losses to Client resulting from
lost computer time or the destruction or damage of records, or any claims
or demands made against the Client by a third party. ABB SC shall maintain
public liability and property damage insurance in reasonable limits and
shall maintain proper worker's compensation insurance covering all
employees performing work under this Agreement and, upon request by Client,
shall furnish Certificates of Insurance evidencing such coverage.
EXCEPT AS PROVIDED HEREIN, ABB SC MAKES NO REPRESENTATIONS OR WARRANTIES UNDER
TillS AGREEMENT WHATSOEVER
ANNEX D
THIRD PARTY SOFTWARE
(TO BE PROVIDED)
ANNEX E
SOURCE CODE
(TO BE PROVIDED)
ANNEX F
DISPUTE RESOLUTION PROCEDURES
The following procedures shall be used to resolve any controversy or claim
("dispute") as provided in this Agreement. If any of these provisions are
determined to be invalid or unenforceable, the remaining provisions shall
remain in effect and binding on the parties to the fullest extent permitted by
law.
MEDIATION
A dispute shall be submitted to mediation by written notice to the other party
or parties. In the mediation process, the parties will try to resolve their
differences voluntarily with the aid of an impartial mediator, who will attempt
to facilitate negotiations. The mediator will be selected by agreement of the
parties. If the parties cannot agree on a mediator, a mediator will be
designated by the American Arbitration Association ("AAA") or JAMS/Endispute at
the request of a party. Any mediator so designated must be acceptable to all
parties.
The mediation will be conducted as specified by the mediator and agreed upon by
the parties. The parties agree to discuss their differences in good faith and
to attempt, with the assistance of the mediator, to reach an amicable
resolution of the dispute.
The mediation will be treated as a settlement discussion and therefore will be
confidential. The mediator may not testify for either party in any later
proceeding relating to the dispute. No recording or transcript shall be made of
the mediation proceedings.
Each party will bear its own costs in the mediation. The fees and expenses of
the mediator will be shared equally by the parties.
Arbitration
If a dispute has not been resolved within 90 days after the written notice
beginning the mediation process (or a longer period, if the parties agree to
extend the mediation), the mediation shall terminate and the dispute will be
settled by arbitration. The arbitration will be conducted in accordance with
the procedures in this document and the arbitration Rules for Commercial
Disputes of the AAA ("AAA Rules"). In the event of a conflict, the provisions
of this document will control.
The arbitration will be conducted before a panel of three arbitrators,
regardless of the size of the dispute, to be selected as provided in the AAA
Rules. Any issue concerning the extent to which any dispute is subject to
arbitration, or concerning the applicability, interpretation, or enforceability
of these procedures, including any contention that all or part of these
procedures are invalid or unenforcable, shall be governed by the Federal
Arbitration Act and resolved by the arbitrators. No potential arbitrator may
serve on the panel unless he or she has agreed in writing to abide and be bound
by these procedures.
Unless provided otherwise in the Agreement, the arbitrators may not award
non-monetary or equitable relief of any sort. They shall have no power to award
(i) damages inconsistent with the Agreement or (ii) punitive damages or any
other damages not measured by the prevailing party's actual damages, and the
parties expressly waive their right to obtain such damages in arbitration or in
any other forum. In no even, even if any other portion of these provision is
held to be invalid or unenforceable, shall the arbitrators have power to make
an award or impose a remedy that could not be made or imposed by a court
deciding the matter in the same jurisdiction.
No discovery will be permitted in connection with the arbitration unless it is
expressly authorized by the arbitration panel upon a showing of substantial
need by the party seeking discovery.
All aspects of the arbitration shall be treated as confidential. Neither the
parties not the arbitrators may disclose the existence, content or results of
the arbitration, except as necessary to comply with legal or regulatory
requirements. Before making any such disclosure, a party shall give written
notice to all other parties and shall afford such parties a reasonable
opportunity to protect their interests.
The result of the arbitration will be binding on the parties, and judgement on
the arbitrators' award may be entered in any court having jurisdiction.
APPENDIX B
[GRAPHIC]
WEPEX Power Exchange Commercial Table of Conformance 1 of 14
- --------------------------------------------------------------------------------
<Table>
<Caption>
SECTION SECTION CONFORMANCE
NUMBER NAME CODE REMARKS
S-C-E
=============================================================================================================================
THE PX ALLIANCE HAS CAREFULLY EXAMINED THE CONTRACT THAT IS PART
OF THIS RFP AND PROPOSES THE FOLLOWING CHANGES:
- -----------------------------------------------------------------------------------------------------------------------------
GENERAL COMMENTS GENERAL NOTES:
1. The PX Alliance has supplied conformance codes in
accordance with the following guideline:
S RFP Terms and Conditions language either has not been modified or
has been modified to correct typographical, grammatical, or rhetorical
defect or to clarify other items believed not to materially after
Purchaser's requirements.
C RFP Terms and Conditions language has been modified to clarify such
language or Purchaser's requirements, but is believed to conform in
all material respects with Purchaser's requirements.
E RFP Terms and Conditions language has been modified to address
substantive issues.
- -----------------------------------------------------------------------------------------------------------------------------
2. This response includes revised General Terms and Conditions that are
marked to show changes proposed by the PX Alliance to those included in the
RFP.
- -----------------------------------------------------------------------------------------------------------------------------
PARTIES C Supplier will be a limited liability company to be formed under
- -----------------------------------------------------------------------------------------------------------------------------
</Table>
THE PX ALLIANCE January 13, 1997
[PEROT SYSTEMS LOGO] [ERNST&YOUNG LLP] [ABB LOGO]
WEPEX Power Exchange Commercial Table of Conformance 2 of 14
- --------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
SECTION SECTION CONFORMANCE
NUMBER NAME CODE REMARKS
S-C-E
- ---------------------------------------------------------------------------------------------------------------------------
Delaware law by Perot Systems Corporation and ABB Power T&D
Company, Inc. Ernst & Young will be a subcontractor to
Supplier
- ---------------------------------------------------------------------------------------------------------------------------
1 AGREEMENT S
- ---------------------------------------------------------------------------------------------------------------------------
2 DEFINITIONS S
- ---------------------------------------------------------------------------------------------------------------------------
Acceptance or Accepted C
- ---------------------------------------------------------------------------------------------------------------------------
Acceptance Test Procedure S
- ---------------------------------------------------------------------------------------------------------------------------
Amendment S
- ---------------------------------------------------------------------------------------------------------------------------
Authorized Representative S
- ---------------------------------------------------------------------------------------------------------------------------
Authorized Users S
- ---------------------------------------------------------------------------------------------------------------------------
CPUC S
- ---------------------------------------------------------------------------------------------------------------------------
Derivative Works C New term defined
- ---------------------------------------------------------------------------------------------------------------------------
Developments S
- ---------------------------------------------------------------------------------------------------------------------------
Delivery Dates S
- ---------------------------------------------------------------------------------------------------------------------------
Documentation S
- ---------------------------------------------------------------------------------------------------------------------------
Field Technical Services S
- ---------------------------------------------------------------------------------------------------------------------------
Funding Decision S
- ---------------------------------------------------------------------------------------------------------------------------
Integrated System Tests S
- ---------------------------------------------------------------------------------------------------------------------------
Jobsites S
- ---------------------------------------------------------------------------------------------------------------------------
Licensed Documentation C Revised to reflect licensing of intellectual property rights
- ---------------------------------------------------------------------------------------------------------------------------
Licensed Software S
- ---------------------------------------------------------------------------------------------------------------------------
Licensee S
- ---------------------------------------------------------------------------------------------------------------------------
Operational Dry Run S
- ---------------------------------------------------------------------------------------------------------------------------
Power Exchange S
- ---------------------------------------------------------------------------------------------------------------------------
Restructuring Decisions S
- ---------------------------------------------------------------------------------------------------------------------------
THE PX ALLIANCE January 13, 1997
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WEPEX Power Exchange Commercial Table of Conformance 3 of 14
- --------------------------------------------------------------------------------
<Table>
<Caption>
CONFORMANCE
SECTION SECTION CODE
NUMBER NAME S-C-E REMARKS
- -----------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------
Software S
Software Documentation S
Source Code S
Specification S
Subcontractor S
Supplier Representative S
Supplier's Software or C Revised to reflect licensing of intellectual property rights.
Licensed Software
System (PX System) S
System User S
Trustee S
Uncontrollable Force C Revised to include certain business uncertainties that are outside
Supplier's control, e.g., determination of PX business rules.
Work S
Work Schedule S
Work Product S
3 TOTAL AUTHORIZED AMOUNT S The PX Alliance is interested in discussing with Purchaser incentive-
AMOUNT AND EFFECTIVE based pricing alternatives which are not included in the PX Alliance
PERIOD RFP response. Further revisions to the terms and conditions may be
necessary if incentive-based pricing alternatives are accepted by
Purchasers.
4 PRIORITY OF DOCUMENTS S
5 SCOPE OF WORK C Revised to tie the scope of work to the System.
6 WORK SCHEDULE
6.1 E Revised to delete "time is of the essence" and related language.
</Table>
THE PX ALLIANCE January 13, 1997
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WEPEX Power Exchange Commercial Table of Conformance 4 of 14
- --------------------------------------------------------------------------------
<Table>
<Caption>
CONFORMANCE
SECTION SECTION CODE
NUMBER NAME S-C-E REMARKS
- -----------------------------------------------------------------------------------------------------------------------
6.2 E Revised to provide that Supplier will be liable only for schedule
delays caused by Supplier's negligence or willful misconduct.
- -----------------------------------------------------------------------------------------------------------------------
6.3
- -----------------------------------------------------------------------------------------------------------------------
6.3.1 S
- -----------------------------------------------------------------------------------------------------------------------
6.3.2 S
- -----------------------------------------------------------------------------------------------------------------------
6.3.3 S
- -----------------------------------------------------------------------------------------------------------------------
6.4 C Revised to provide for access to PX facilities during holidays and
outside normal work hours.
- -----------------------------------------------------------------------------------------------------------------------
6.5 E New section added to clarify the dependence of Work Schedule on
Purchaser's performance.
- -----------------------------------------------------------------------------------------------------------------------
7 RISK OF LOSS E Revised to provide the Purchaser has risk of loss while System is
on Purchaser's premises.
- -----------------------------------------------------------------------------------------------------------------------
8 TITLE
- -----------------------------------------------------------------------------------------------------------------------
8.1 C Revised to provide title passage or license grant on payment.
- -----------------------------------------------------------------------------------------------------------------------
8.2 C Revised to allow Supplier to retain title to Test Data.
- -----------------------------------------------------------------------------------------------------------------------
8.3 C
- -----------------------------------------------------------------------------------------------------------------------
8.4 C Revised to provide for Purchaser's ownership only of specified work
product.
- -----------------------------------------------------------------------------------------------------------------------
8.5 S
- -----------------------------------------------------------------------------------------------------------------------
8.6 E Section deleted because use of System is restricted by license
agreement.
- -----------------------------------------------------------------------------------------------------------------------
9 COMMERCIAL TERMS
- -----------------------------------------------------------------------------------------------------------------------
9.1 Invoices
- -----------------------------------------------------------------------------------------------------------------------
9.1.1 E Revised to permit invoicing on substantial completion.
- -----------------------------------------------------------------------------------------------------------------------
9.1.2 S
- -----------------------------------------------------------------------------------------------------------------------
</Table>
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- --------------------------------------------------------------------------------
<Table>
<Caption>
CONFORMANCE
SECTION SECTION CODE
NUMBER NAME S-C-E REMARKS
- ------------------------------------------------------------------------------------------------------------
9.1.3 S
- ------------------------------------------------------------------------------------------------------------
9.1.4 S
- ------------------------------------------------------------------------------------------------------------
9.1.5 S
- ------------------------------------------------------------------------------------------------------------
9.2 Payment The PX Alliance is interested in discussing with
Purchaser incentive-based pricing alternatives
which are not included in the PX Alliance RFP
response. Further revisions to the terms and
conditions may be necessary if incentive-
based pricing alternatives are accepted by
Purchaser.
- ------------------------------------------------------------------------------------------------------------
9.2.1 C Revised to provide for interest on late payments
- ------------------------------------------------------------------------------------------------------------
9.2.2 C
- ------------------------------------------------------------------------------------------------------------
9.3 Taxes C
- ------------------------------------------------------------------------------------------------------------
9.4 Payment for Field Technical
Services when not included in
the fixed contract price
- ------------------------------------------------------------------------------------------------------------
9.4.1 S
- ------------------------------------------------------------------------------------------------------------
9.4.2 E Travel charges are assessed at cost +20%
- ------------------------------------------------------------------------------------------------------------
9.4.3 S
- ------------------------------------------------------------------------------------------------------------
9.4.4 S
- ------------------------------------------------------------------------------------------------------------
9.5 Claims E Revised to allow more time to file claims for
additional compensation.
- ------------------------------------------------------------------------------------------------------------
10 CHANGES
- ------------------------------------------------------------------------------------------------------------
10.1 C
- ------------------------------------------------------------------------------------------------------------
10.1.1 C
- ------------------------------------------------------------------------------------------------------------
10.2 S
- ------------------------------------------------------------------------------------------------------------
10.3 S
- ------------------------------------------------------------------------------------------------------------
</Table>
THE PX ALLIANCE January 13, 1997
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WEPEX POWER EXCHANGE COMMERCIAL TABLE OF CONFORMANCE 6 OF 14
SECTION SECTION CONFORMANCE
NUMBER NAME CODE REMARKS
S-C-E
- -------------------------------------------------------------------------------------------------------------------------------
10.4 S
- -------------------------------------------------------------------------------------------------------------------------------
10.5 C
- -------------------------------------------------------------------------------------------------------------------------------
10.6 E Section deleted. New section added to provide for
dispute resolution.
- -------------------------------------------------------------------------------------------------------------------------------
10.7 E Section deleted.
- -------------------------------------------------------------------------------------------------------------------------------
11 PROJECT MANAGEMENT
- -------------------------------------------------------------------------------------------------------------------------------
11.1 C
- -------------------------------------------------------------------------------------------------------------------------------
11.2 C
- -------------------------------------------------------------------------------------------------------------------------------
11.3 C
- -------------------------------------------------------------------------------------------------------------------------------
11.4 S
- -------------------------------------------------------------------------------------------------------------------------------
11.5 S
- -------------------------------------------------------------------------------------------------------------------------------
11.6 C
- -------------------------------------------------------------------------------------------------------------------------------
11.7 S
- -------------------------------------------------------------------------------------------------------------------------------
11.8 E Deleted
- -------------------------------------------------------------------------------------------------------------------------------
12 CODES AND STATUTES
- -------------------------------------------------------------------------------------------------------------------------------
12.1 C
- -------------------------------------------------------------------------------------------------------------------------------
12.2 S
- -------------------------------------------------------------------------------------------------------------------------------
13 SUBCONTRACTORS C
- -------------------------------------------------------------------------------------------------------------------------------
14 SUSPENSION
- -------------------------------------------------------------------------------------------------------------------------------
14.1 E Revised to require Supplier's consent to resume Work
after suspension.
- -------------------------------------------------------------------------------------------------------------------------------
14.2 E Revised to include a monthly suspension fee (retainer) for
those periods where the contract has been suspended, but
not terminated.
- -------------------------------------------------------------------------------------------------------------------------------
14.3 S
- -------------------------------------------------------------------------------------------------------------------------------
15 Proprietary C Revised to make confidentiality provisions mutual.
- -------------------------------------------------------------------------------------------------------------------------------
</Table>
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<Table>
<Caption>
CONFORMANCE
SECTION SECTION CODE
NUMBER NAME S-C-E REMARKS
- ------------------------------------------------------------------------------------------------------------------------------------
INFORMATION AND
MATERIAL
15.1 C
15.2 C
15.3 C
15.4 Confidential information C
15.4.1 C
15.4.2 C
16 PROPRIETARY RIGHTS C Revised to provide for licensing intellectual property to
AND LICENSES Purchaser. In the final agreement, the PX Alliance prefers
to utilize a separate licence agreement containing the
terms and conditions included in Article 16.
16.1 Software and Documentation C
License
16.1.1 C
16.2 Right to Use C
16.2.1 C
16.2.2 C
16.3 Right to Copy the Licensed C
Software and Licensed
Documentation
16.4 Distribution Rights C
16.5 Third Party Ownership C
16.6 Supplier Ownership C
16.7 Improvements and Upgrades C
</Table>
THE PX ALLIANCE January 13, 1997
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<Table>
<Caption>
CONFORMANCE
SECTION SECTION CODE
NUMBER NAME S-C-E REMARKS
INFORMATION AND
MATERIAL
- -----------------------------------------------------------------------------------------------------------------------
15.1 C
- -----------------------------------------------------------------------------------------------------------------------
15.2 C
- -----------------------------------------------------------------------------------------------------------------------
15.3 C
- -----------------------------------------------------------------------------------------------------------------------
15.4 Confidential Information C
- -----------------------------------------------------------------------------------------------------------------------
15.4.1 C
- -----------------------------------------------------------------------------------------------------------------------
15.4.2 C
- -----------------------------------------------------------------------------------------------------------------------
16 PROPRIETARY RIGHTS AND LICENSES C Revised to provide for licensing intellectual
property to Purchaser. In the final agreement,
the PX Alliance prefers to utilize a separate
license agreement containing the terms and
conditions including in Article 16.
- -----------------------------------------------------------------------------------------------------------------------
16.1 Software and Documentation C
License
- -----------------------------------------------------------------------------------------------------------------------
16.1.1 C
- -----------------------------------------------------------------------------------------------------------------------
16.2 Right to Use C
- -----------------------------------------------------------------------------------------------------------------------
16.2.1 C
- -----------------------------------------------------------------------------------------------------------------------
16.2.2 C
- -----------------------------------------------------------------------------------------------------------------------
16.3 Right to Copy the Licensed C
Software and Licensed
Documentation
- -----------------------------------------------------------------------------------------------------------------------
16.4 Distribution Rights C
- -----------------------------------------------------------------------------------------------------------------------
16.5 Third Party Ownership C
- -----------------------------------------------------------------------------------------------------------------------
16.6 Supplier Ownership C
- -----------------------------------------------------------------------------------------------------------------------
16.7 Improvements and Upgrades C
- -----------------------------------------------------------------------------------------------------------------------
</Table>
THE PX ALLIANCE January 13, 1997
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<Table>
<Caption>
CONFORMANCE
SECTION SECTION CODE
NUMBER NAME S-C-E REMARKS
- -----------------------------------------------------------------------------------------------------------------------
16.8 Right to Transfer C
- -----------------------------------------------------------------------------------------------------------------------
16.9 Reverse Engineering C New Section.
- -----------------------------------------------------------------------------------------------------------------------
16.10 Software Maintenance C New Section.
- -----------------------------------------------------------------------------------------------------------------------
17 SOURCE CODE C
- -----------------------------------------------------------------------------------------------------------------------
18 INSPECTION, TESTING AND C This Article has been revised generally to
ACCEPTANCE provide that Acceptance will be based on
compliance with Acceptance Tests approved by
Purchaser.
- -----------------------------------------------------------------------------------------------------------------------
18.1 Inspection S
- -----------------------------------------------------------------------------------------------------------------------
18.2 Supplier Testing E Revised to delete contract cancellation right.
- -----------------------------------------------------------------------------------------------------------------------
18.3 Integrated Systems Test
- -----------------------------------------------------------------------------------------------------------------------
18.3.1 S
- -----------------------------------------------------------------------------------------------------------------------
18.3.2 S
- -----------------------------------------------------------------------------------------------------------------------
18.3.3 S
- -----------------------------------------------------------------------------------------------------------------------
18.3.4 C
- -----------------------------------------------------------------------------------------------------------------------
18.3.5 S
- -----------------------------------------------------------------------------------------------------------------------
18.3.6 S
- -----------------------------------------------------------------------------------------------------------------------
18.4 Operational Dry Run
- -----------------------------------------------------------------------------------------------------------------------
18.4.1 S
- -----------------------------------------------------------------------------------------------------------------------
18.4.2 C
- -----------------------------------------------------------------------------------------------------------------------
18.4.3 C
- -----------------------------------------------------------------------------------------------------------------------
18.4.4 C
- -----------------------------------------------------------------------------------------------------------------------
18.5 Availability Test
- -----------------------------------------------------------------------------------------------------------------------
18.5.1 S
- -----------------------------------------------------------------------------------------------------------------------
18.5.1 S
- -----------------------------------------------------------------------------------------------------------------------
18.6 Acceptance C
- -----------------------------------------------------------------------------------------------------------------------
</Table>
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- ---------------------------------------------------------------------------------------------------------------------------------
SECTION SECTION CONFORMANCE
NUMBER NAME CODE REMARKS
S-C-E
- ---------------------------------------------------------------------------------------------------------------------------------
18.6.1 C
- ---------------------------------------------------------------------------------------------------------------------------------
18.6.2 C
- ---------------------------------------------------------------------------------------------------------------------------------
18.6.3 C
- ---------------------------------------------------------------------------------------------------------------------------------
18.6.4 C
- ---------------------------------------------------------------------------------------------------------------------------------
18.7 Rejection C
- ---------------------------------------------------------------------------------------------------------------------------------
18.7.1 E Revised to provide for liquidated damages in the event of late
delivery.
- ---------------------------------------------------------------------------------------------------------------------------------
18.7.2 E Deleted
- ---------------------------------------------------------------------------------------------------------------------------------
19 WARRANTIES C This Article has been revised generally to provide that warranty
compliance will be determined vis-a-vis the Acceptance Tests.
- ---------------------------------------------------------------------------------------------------------------------------------
19.1 System E The warranty has been modified. See section 19.1 of the
commercial terms and conditions
- ---------------------------------------------------------------------------------------------------------------------------------
19.1.1 E Revised to delete certain warranties.
- ---------------------------------------------------------------------------------------------------------------------------------
19.1.2 E Revised to establish a one-year warranty period commencing on the
date the successful 2000-hour availability test commences.
- ---------------------------------------------------------------------------------------------------------------------------------
19.1.3 C
- ---------------------------------------------------------------------------------------------------------------------------------
19.2 Documentation C
- ---------------------------------------------------------------------------------------------------------------------------------
19.3 Third Party Equipment C
- ---------------------------------------------------------------------------------------------------------------------------------
19.4 Replacement Parts E Revised to establish a 90-day warranty period.
- ---------------------------------------------------------------------------------------------------------------------------------
19.5 Services C
- ---------------------------------------------------------------------------------------------------------------------------------
19.6 Condition of Warranties C
- ---------------------------------------------------------------------------------------------------------------------------------
19.6.1 C
- ---------------------------------------------------------------------------------------------------------------------------------
19.6.2 C
- ---------------------------------------------------------------------------------------------------------------------------------
19.6.3 C
- ---------------------------------------------------------------------------------------------------------------------------------
19.6.4 C
- ---------------------------------------------------------------------------------------------------------------------------------
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<Table>
<Caption>
CONFORMANCE
SECTION SECTION CODE
NUMBER NAME S-C-E REMARKS
- --------------------------------------------------------------------------------------------------------------------------
19.6.5 E New Section providing for certain warranty exceptions.
- --------------------------------------------------------------------------------------------------------------------------
20 SUPPLIER'S SYSTEM
SUPPORT
- --------------------------------------------------------------------------------------------------------------------------
20.1 E Section revised to provide for a three year support period.
- --------------------------------------------------------------------------------------------------------------------------
20.2 C
- --------------------------------------------------------------------------------------------------------------------------
20.3 C
- --------------------------------------------------------------------------------------------------------------------------
20.4 C
- --------------------------------------------------------------------------------------------------------------------------
21 INFRINGEMENT C This Article has been revised generally to provide that each Party
PROTECTION will indemnify the other party against risks over which the Party has
control.
- --------------------------------------------------------------------------------------------------------------------------
21.1 S
- --------------------------------------------------------------------------------------------------------------------------
21.2 C
- --------------------------------------------------------------------------------------------------------------------------
21.3 C
- --------------------------------------------------------------------------------------------------------------------------
21.4 E New Section providing for Purchaser's indemnification of Supplier
against certain infringement risks.
- --------------------------------------------------------------------------------------------------------------------------
21.5 C New Section consolidating procedural steps for indemnification.
- --------------------------------------------------------------------------------------------------------------------------
22 FITNESS FOR DUTY C
- --------------------------------------------------------------------------------------------------------------------------
22.1 C
- --------------------------------------------------------------------------------------------------------------------------
22.2 E Revised to limit scope of searches.
- --------------------------------------------------------------------------------------------------------------------------
22.3 E Revised to delete right to cancel contract.
- --------------------------------------------------------------------------------------------------------------------------
23 INDEMNITY
- --------------------------------------------------------------------------------------------------------------------------
23.1 C
- --------------------------------------------------------------------------------------------------------------------------
23.2 C
- --------------------------------------------------------------------------------------------------------------------------
23.3 C
- --------------------------------------------------------------------------------------------------------------------------
23.4 C
- --------------------------------------------------------------------------------------------------------------------------
</Table>
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<Table>
<Caption>
CONFORMANCE
SECTION SECTION CODE
NUMBER NAME S-C-E REMARKS
- ---------------------------------------------------------------------------------------------------------------------------------
23.5 C
23.6 E New Section providing for indemnification of Supplier against claims
arising from the operation of the System.
23.6 C New Section consolidating procedural steps for indemnification.
24 INSURANCE
24.1 E Revised to delete requirement to maintain Professional Liability
Insurance.
24.2 S
24.3 S
25 SAFETY NOTIFICATIONS
25.1 S
25.2 Container Labelling S
Requirements
25.3 California's Toxic S
Enforcement Act
Requirements
26 LIMITATION OF LIABILITY E Revised to clarify that Supplier shall not be liable for damages in
excess of the purchase price.
27 DISPUTES This Article has been revised generally to provide for an alternative
dispute resolution process as described in Annex F.
27.1 S
27.2 S
27.3 Resolution of Disputes C Revised.
Through Arbitration
27.4 Jurisdiction, Choice of E Section deleted.
Litigation Location
</Table>
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<Table>
<Caption>
CONFORMANCE
SECTION SECTION CODE
NUMBER NAME S-C-E REMARKS
- -----------------------------------------------------------------------------------------------------------------------
28 TERMINATION AT WILL
- -----------------------------------------------------------------------------------------------------------------------
28.1 S
- -----------------------------------------------------------------------------------------------------------------------
28.2 S
- -----------------------------------------------------------------------------------------------------------------------
28.3 C Revised to provide alternate compensation for termination at will.
- -----------------------------------------------------------------------------------------------------------------------
28.4 S
- -----------------------------------------------------------------------------------------------------------------------
28.5 C
- -----------------------------------------------------------------------------------------------------------------------
28.6 S
- -----------------------------------------------------------------------------------------------------------------------
29 DEFAULTS AND
CANCELLATION FOR CAUSE
- -----------------------------------------------------------------------------------------------------------------------
29.1 C
- -----------------------------------------------------------------------------------------------------------------------
29.2 C Revised to provide alternate compensation for termination
for cause
- -----------------------------------------------------------------------------------------------------------------------
29.2.1 C Section deleted.
- -----------------------------------------------------------------------------------------------------------------------
29.3 E New section providing for cancellation in the event of
Purchaser's default.
- -----------------------------------------------------------------------------------------------------------------------
30 NON-WAIVER S
- -----------------------------------------------------------------------------------------------------------------------
31 ASSIGNMENT
- -----------------------------------------------------------------------------------------------------------------------
31.1 C
- -----------------------------------------------------------------------------------------------------------------------
31.2 C
- -----------------------------------------------------------------------------------------------------------------------
31.3 C
- -----------------------------------------------------------------------------------------------------------------------
31.4 C
- -----------------------------------------------------------------------------------------------------------------------
31.5 C
- -----------------------------------------------------------------------------------------------------------------------
32 SEVERABILITY S
- -----------------------------------------------------------------------------------------------------------------------
33 NOTICES S
- -----------------------------------------------------------------------------------------------------------------------
</Table>
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<Table>
<Caption>
CONFORMANCE
SECTION SECTION CODE
NUMBER NAME S-C-E REMARKS
- -----------------------------------------------------------------------------------------------------------------------
34 GOVERNING LAW S
- -----------------------------------------------------------------------------------------------------------------------
35 SECTION HEADINGS S
- -----------------------------------------------------------------------------------------------------------------------
36 SURVIVAL S
- -----------------------------------------------------------------------------------------------------------------------
37 CONFLICT OF INTEREST/
BUSINESS ETHICS
- -----------------------------------------------------------------------------------------------------------------------
37.1 No Existing Conflicts of Interest C Revised to clarify the scope of the conflicts
of interest provisions.
- -----------------------------------------------------------------------------------------------------------------------
37.2 Reasonable Care S
- -----------------------------------------------------------------------------------------------------------------------
37.3 Other Employment C
- -----------------------------------------------------------------------------------------------------------------------
37.4 Gifts S
- -----------------------------------------------------------------------------------------------------------------------
37.5 Accurate Documentation E Revised to limit scope of audit rights.
- -----------------------------------------------------------------------------------------------------------------------
37.6 Notification S
- -----------------------------------------------------------------------------------------------------------------------
37.7 Availability of Information C
- -----------------------------------------------------------------------------------------------------------------------
37.8 Subcontractors S
- -----------------------------------------------------------------------------------------------------------------------
37.9 No Hire E New Section.
- -----------------------------------------------------------------------------------------------------------------------
38 EQUAL OPPORTUNITY LAWS
- -----------------------------------------------------------------------------------------------------------------------
38.1 S
- -----------------------------------------------------------------------------------------------------------------------
38.2 S
- -----------------------------------------------------------------------------------------------------------------------
38.3 S
- -----------------------------------------------------------------------------------------------------------------------
38.4 S
- -----------------------------------------------------------------------------------------------------------------------
38.5 S
- -----------------------------------------------------------------------------------------------------------------------
38.6 S
- -----------------------------------------------------------------------------------------------------------------------
38.7 S
- -----------------------------------------------------------------------------------------------------------------------
38.8 S
- -----------------------------------------------------------------------------------------------------------------------
</Table>
THE PX ALLIANCE January 13, 1997
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WEPEX POWER EXCHANGE COMMERCIAL TABLE OF CONFORMANCE 14 OF 14
SECTION SECTION CONFORMANCE
NUMBER NAME CODE REMARKS
S-C-E
- -------------------------------------------------------------------------------------------------------------------------------
38.9 S
- -------------------------------------------------------------------------------------------------------------------------------
38.10 S
- -------------------------------------------------------------------------------------------------------------------------------
38.11 S
- -------------------------------------------------------------------------------------------------------------------------------
38.12 S
- -------------------------------------------------------------------------------------------------------------------------------
38.13 S
- -------------------------------------------------------------------------------------------------------------------------------
38.14 S
- -------------------------------------------------------------------------------------------------------------------------------
39 INJURY AND ILLNESS S
PREVENTION PROGRAM
- -------------------------------------------------------------------------------------------------------------------------------
40 ENTIRE AGREEMENT S
- -------------------------------------------------------------------------------------------------------------------------------
41 LICENSE AGREEMENTS C New Section
- -------------------------------------------------------------------------------------------------------------------------------
42 THIRD PARTY C New Section
BENEFICIARIES
- -------------------------------------------------------------------------------------------------------------------------------
43 EXECUTION E Revised to require additional signatories.
- -------------------------------------------------------------------------------------------------------------------------------
PAYMENT GUARANTEE E New provision
- -------------------------------------------------------------------------------------------------------------------------------
EXHIBIT 1 S
- -------------------------------------------------------------------------------------------------------------------------------
EXHIBIT 2 S
- -------------------------------------------------------------------------------------------------------------------------------
EXHIBIT 3 S
- -------------------------------------------------------------------------------------------------------------------------------
ANNEX A C
- -------------------------------------------------------------------------------------------------------------------------------
ANNEX B C
- -------------------------------------------------------------------------------------------------------------------------------
ANNEX C C
- -------------------------------------------------------------------------------------------------------------------------------
ANNEX D C
- -------------------------------------------------------------------------------------------------------------------------------
ANNEX E C
- -------------------------------------------------------------------------------------------------------------------------------
ANNEX F C Revised dispute resolution procedures.
- -------------------------------------------------------------------------------------------------------------------------------
</Table>
THE PX ALLIANCE January 13, 1997
[PEROT SYSTEMS LOGO] [ERNST&YOUNG LLP LOGO] [ABB LOGO]