EXHIBIT 10.2
PURCHASE AGREEMENT
PARTIES
This Product Purchase Agreement is made between:
GoDigital Telecommunications
41305 Albrae Street
Fremont, CA 94538 (Seller)
and
BC TEL
6969 10th Avenue
Burnaby, BC V3N 2R4 (BC TEL)
for the benefit of BC TEL and BC TEL Affiliates (as defined in Clause 7).
THE PARTIES AGREE AS FOLLOWS:
1. TERM
This Agreement shall be for a period of one (1) year commencing April 1, 1999
and shall be subject to renewal at BC TEL's option for further consecutive
periods of one (1) year to a maximum period of five (5) years.
Written notice of renewal shall be given by BC TEL at least sixty (60) days
prior to the end of each period or the Agreement shall terminate. BC TEL
reserves the right to extend the term of any period by one (1) month without
penalty or increased cost.
2. PRODUCTS
This Agreement applies to the purchase by BC TEL of the Product(s) (Product) of
the Seller as described in Schedule "A" and in accordance with the Product
specifications as described in Schedule "C" (Specifications), if any.
3. PRICE AND TERMS OF PAYMENT
BC TEL agrees to pay the prices as described in Schedule A for the Product(s)
which it purchases, which prices shall be fixed until March 31, 2000 and which
prices shall be those of the most favored customer of the Seller.
Payment shall be made net 30 days from invoice date to BC TEL unless approval is
withheld under Clause 15. Payment of invoice in no way indicates approval of
the Product(s) by BC TEL.
[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
4. PRECEDENCE OF BC TEL'S TERMS
All purchases by BC TEL of the Seller's Product(s) shall be governed in priority
by:
the terms, conditions of this Purchase Agreement,
BC TEL's General Terms, Conditions, and
the Terms, Conditions of each individual Purchase Order (if any).
All purchases are expressly limited to the above terms, conditions which shall
govern. Any additional or inconsistent terms or conditions proposed by the
Seller are hereby rejected and will not form part of our Agreement, unless
specifically agreed to in advance and in writing by BC TEL.
5. PURCHASE ORDER
This Agreement does not by itself constitute an order. BC TEL shall order
Product or Service by submitting a Purchase Order.
6. CANCELLATION OF PURCHASE ORDERS
If the Seller is in material breach or default of any term or condition of this
Agreement or any purchase order hereunder, BC TEL may give fifteen (15) days
written notice to the Seller to remedy the breach or default.
If the breach or default is not remedied to BC TEL's satisfaction within the
period of notice, then in addition to all other rights and remedies of law
including the right of set off, BC TEL may cancel this Agreement and any
purchase orders made under it without further notice or obligation to the
Seller.
Additionally, BC TEL reserves the right at any time to cancel any purchase order
for convenience prior to completion of delivery of the Product(s), in which case
BC TEL shall reimburse the Seller for the Seller's actual verifiable costs
incurred as a result of such cancellation only, but in no event, shall such
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cancellation costs exceed the purchase order price.
7. AFFILIATES
In this Agreement:
(A) "Affiliate" and "Control" will each have the meaning given to it under the
Canada Business Corporations Act, R.S.C. 1985, c. C-44, as amended.
(B) "BC TEL Affiliate" means any of the following:
(i) an Affiliate of BC TEL;
(ii) a partnership, joint venture or other entity that directly or
indirectly Controls, is Controlled by, or is under common Control
with, BC TEL; or
(iii) GTE Corporation, its Affiliates, and their successors.
The Seller agrees that the BC TEL Affiliates shall have the same right to
purchase pursuant to the terms of this Agreement as BC TEL and shall have the
same rights to enforce the terms, conditions of this Agreement for any purchase
order they may issue to the Seller as if they were a signatory to the Agreement.
The parties acknowledge that it may be necessary to enter into separate
agreements between the Seller and a BC TEL Affiliate. The parties intend that
any further agreements or terms, conditions will be consistent with and based
upon the applicable terms, conditions of this Agreement, subject to the
requirements of local laws and business practices.
8. AFFILIATE PURCHASE ORDER
The Seller may enforce each purchase order only against the BC TEL Affiliate
which has submitted the purchase order.
If a BC TEL Affiliate shall be in breach or default of the Agreement, including,
but not limited to, timely payment for the Product purchased and such breach
shall continue for a period of thirty (30) days after the BC TEL Affiliate's
receipt of the Seller's written notice, then, in addition to all other rights
and remedies of law or equity or otherwise, the Seller shall have the right to
suspend delivery of the Product on outstanding purchase orders or revoke
existing acknowledgments only with respect to the BC TEL Affiliate. Default by
a BC TEL Affiliate shall not affect any other BC TEL Affiliate party to this
Agreement or BC TEL.
9. TERMINATION OF AGREEMENT
BC TEL reserves the right at its exclusive option to cancel any Agreement or
Schedule with the Seller without further obligation or expense of any kind:
. at any time without notice or warning for cause or non-compliance with this
Agreement;
. upon thirty (30) days written notice during the term of the Agreement for
any reason, whereupon BC TEL shall only be liable for such costs, fees or
expenses as are incurred to that date and not thereafter.
10. INDEMNITY
The Seller shall indemnify and save harmless BC TEL, its directors, officers,
agents and employees, and any applicable BC TEL Affiliate and its directors,
officers, agents and employees, from and against any and all liability
whatsoever for losses, liens, charges, claims, demands, payments, suits,
actions, penalties, recoveries and judgments (including legal fees and expenses)
of every nature and description brought or recovered against either BC TEL, its
directors, officers, agents, employees, and any applicable BC TEL Affiliate and
its directors, officers, agents and employees, or the Seller by reason of an
act, error or omission of the Seller, its agents, employees or licensees in
providing the Product(s), including, without limiting the generality of the
foregoing, loss or damage to property, injury to or the death of any persons,
alleged copyright, patent or other intellectual property rights infringement or
interference, defective design or damage to the environment
11. DELIVERY REQUIREMENTS
. Unless otherwise directed by BC TEL, all product shipments shall be FOB
Origin, Freight Collect using BC TEL specified carrier;
. When applicable, Vendor will be expected to include a Certificate of Origin
with each shipment;
. Where the Seller is to arrange transportation at BC TEL's expense, prior to
shipment the Seller shall contact BC TEL's Transportation Manager at: 520-
2121 for instructions on shipping;
. Failure to ship as directed in points 1, 2, and 3 will result in
chargebacks to the Seller for excess freight charges;
. Delivery lead times shall be from the date of receipt of the Purchase
Order;
. The Seller shall ship Product(s) to BC TEL with a 95% or better service
level in delivery;
. Any incremental costs for shipments due to the Seller shipping late or
beyond lead times shall be at the Seller's sole expense, or will be charged
back to the Seller.
For all purchase orders, the Seller shall:
i. ship in accordance with specified shipping instructions;
ii. ensure all documents (primary and subordinate), shipping papers, bills of
lading, and packages, bear BC TEL's purchase order number;
iii. enclose a packing slip with each shipment, specifying which package
contains the packing slip if more than one package is shipped;
iv. separately invoice BC TEL to the billing address shown on the Purchase
Order; and
v. if requesting payment for shipping cost incurred on invoice of material,
include copy of freight carrier's invoice to substantiate claim.
The Seller shall be responsible for adequate protective packing and for proper
loading, blocking and bracing of materials shipped in accordance with standard
industry shipping practices.
12. CUSTOMS (FOREIGN SELLERS)
Foreign Sellers' shipments required to be cleared by Canadian Customs must be
accompanied by a copy of the Canada Customs Invoice (CCI) or Commercial Invoice,
completed in accordance with Canadian Customs Regulations, and a Certificate of
Origin or NAFTA Certificate of Origin, if applicable, together with any and all
import/export documents/permits required by foreign customs.
You will be liable to reimburse BC TEL for any expenses or losses associated
with a redetermination by Canada Customs of any NAFTA Certificate of Origin
provided by you to support a shipment.
13. PACKAGING/SKIDS AND PALLETS
Product(s) shall be packaged and packed at no additional charge for shipment in
suitable boxes, reels, bundles, pieces, coils, etc., which shall provide
protection against damage during the shipment, handling, and storage process in
dry, unheated quarters. Shipping containers shall comply with requirements of
Rule 41 of the Canadian Freight Classification guide of ETA 100 or USA National
Motor Freight Classification guide (NMFC). Containers of any type that are too
heavy or too large to be palletized shall contain footings to facilitate fork
truck and/or mechanized handling. In the event skid or pallet loads are
necessary, BC TEL requires that skid or pallet loads not exceed a maximum of 1.5
meters in height.
14. BILL OF SALE
The Seller agrees to execute and deliver a bill of sale evidencing conveyance of
the Product(s), free and clear of all liens, security interests and
encumbrances, together with such other documents as BC TEL may deem necessary.
15. INSPECTION AND ACCEPTANCE
All Product(s) which are installed shall be subject to BC TEL's right to inspect
and approve of the installed Product for six (6) months following date of
installation.
During the inspection period, BC TEL may reject, in whole or in part, any
Product(s) as nonconforming to the purchase order requirements or the Seller's
advertised or published specifications. Whereupon BC TEL shall give the Seller
written notice of rejection and return the rejected Product(s) FOB Origin
Collect at the Seller's risk and expense.
Only following the expiration of the inspection period without notice of
rejection will acceptance be deemed to occur.
Inspection or failure to inspect shall not affect BC TEL's warranty rights nor
any other rights in law.
16. FORECASTS AND ESTIMATES - RESERVED
17. PRODUCT DISCONTINUANCE
The Seller agrees to give BC TEL 180 days prior written notice of any Product(s)
discontinuance and to honor any purchase orders for such Product(s) received
during the notice period provided that delivery dates are within six (6) months
of the date of the notice of discontinuance.
18. PRICE REVISION
In the event prices decrease during the term of this Agreement, the Seller
agrees, effective immediately, to reduce their invoices accordingly for all
outstanding invoices and or undelivered Purchase Orders.
With respect to on-hand inventory in its original packaging and condition, BC
TEL shall, at its option receive a credit or refund from the Seller within
fourteen (14) days of written request from BC TEL, for the difference between
the price paid by BC TEL and the reduced price for all affected product(s).
In the event the Seller wishes to increase prices following the expiration of
the fixed prices date of this Agreement, the Seller agrees to give BC TEL not
less than ninety (90) days advance written notice of such price increase and to
honor all purchase orders received during that notice period at the old prices.
19. AFFILIATE REPORTS
When requested by BC TEL, the Seller shall provide BC TEL with a monthly
purchase report for orders placed directly with the Seller by a BC TEL
Affiliate. The report shall list the BC TEL Affiliate, Product purchased under
this Agreement, description, part number, quantities shipped, and associated net
price.
20. PRODUCT DOCUMENTATION
The Seller agrees to provide to BC TEL at no additional charge, reasonable
amounts of Product documentation together with a fully paid license to reproduce
all or some of the Seller's Product documentation for BC TEL's use only.
21. TRADEMARK LICENSE
If BC TEL requests, the Seller agrees to grant to BC TEL the non-exclusive right
to use the Seller's trade name and trademark which use shall be subject to the
Seller's prior review and approval, which shall not be unreasonably withheld or
delayed.
22. PUBLICITY
The parties agree not to publish or use any advertising, sales promotions, press
releases, or publicity matters of the other party without the prior written
approval of the other party. Such approval shall not be unreasonably withheld
or delayed.
23. CONFIDENTIAL INFORMATION
Except for the purposes of providing Product, the Seller shall retain in strict
secrecy, and shall not divulge or use, any information acquired in the course of
providing Product to BC TEL or BC TEL Affiliates, or any information disclosed
to it by BC TEL or BC TEL Affiliates without BC TEL's prior written approval.
24. BC TEL AFFILIATES
The Seller acknowledges that BC TEL may, at its sole discretion, share Vendor,
Product, Price, Lead-time and Specification information and all other
information related to or arising from this Agreement among the BC TEL
Affiliates.
25. INITIATIVES
The Seller agrees to work with BC TEL during the term of this Agreement to
develop and implement initiatives, such as, Product Standardization, Bar Coding,
Electronic Data Interchange (EDI) where appropriate or requested.
26. ATTACHMENTS
All the terms, conditions contained within the attached Appendices, Schedules
and Exhibits, if any, shall form part of the Agreement and shall have the same
force and effect as if incorporated in the body of the Agreement.
27. PRODUCT FOR RESALE BY BC TEL
In the event BC TEL issues an order for product or related service for resale or
distribution, the Seller agrees Appendix D shall govern over the general terms
of this Agreement where they are in conflict.
28. NO WAIVER
BC TEL may at any time insist upon strict compliance with this Agreement,
regardless of past conduct or practice.
29. ASSIGNMENT
The Seller shall not assign (in any manner including by operation of law) or
sub-contract any of its obligations under this Agreement without the prior
written consent of BC TEL. BC TEL may, from time to time in its sole
discretion, assign or subcontract its rights or obligations under this
Agreement, in whole or in part, to one or more BC TEL Affiliates.
30. SURVIVAL OF OBLIGATIONS
The respective obligations of the parties under this Agreement that by their
nature would continue beyond the termination, cancellation or expiration,
including, but not limited to, obligations to indemnify, insure and maintain
confidentiality and continued availability of Product support, shall survive the
end of the Agreement.
31. ENUREMENT
This Agreement shall enure to the benefit of and be binding on BC TEL and its
successors and assigns. This Agreement shall enure to the benefit of the
Seller, its permitted successors and permitted assigns, and be binding on the
Seller, its successors and assigns.
32. ARBITRATION
All disputes arising out of or in connection with this Agreement or in respect
of any defined legal relationship associated therewith or derived therefrom
shall be referred to and finally resolved by arbitration under the rules of the
British Columbia International Commercial Arbitration Center and in connection
therewith:
. the appointing authority shall be the British Columbia International
Commercial Arbitration Center;
. the arbitration will be conducted by a single arbitrator unless the Parties
agree otherwise;
. the case shall be administered by the British Columbia International
Commercial Arbitration Center in accordance with its rules;
. the place of arbitration shall be Vancouver, British Columbia, Canada; and
. the language of the arbitration shall be English.
33. GOVERNING LAWS
This Agreement shall be interpreted and governed according to the laws of the
Province of British Columbia.
Should any provision of this Agreement be found to be invalid or unenforceable,
the remainder shall continue to be valid and enforceable.
Section headings are not intended to affect the meaning nor the interpretation
of this Agreement.
34. NOTICES
All notices under this Agreement shall be in writing and shall be deemed
received, if sent to the addresses or FAX numbers of the parties:
a) by FAX on the business day following date of transmission (with the party
taxing bearing the onus of proof that the fax was actually received);
b) by mail, on the date of actual delivery;
c) by registered mail, on the fifth day following date of mailing.
The addresses of the parties on the first page of this Agreement shall be the
registered addresses for all notices, unless written notice is received of a
substitute address.
35. ENTIRE AGREEMENT
This document together with the BC TEL General Terms, Conditions, the BC TEL
Request for Proposal, if any, and, the accepted portions of any Reply (but only
to the extent that the Reply is not inconsistent with BC TEL's above named
documents), shall form one entire and complete Agreement (the Agreement).
The Agreement shall supersede all prior oral and written communications and
representations.
The Agreement may only be amended in writing signed by both parties or their
fully authorized representatives.
AGREEMENT ENTERED INTO May 17, 1999.
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For: BC TEL For: GoDigital Telecommunications
/s/ Rick Wong /s/ Frank I. Akers
------------------------- ------------------------------
Rick Wong Authorized Signatory
Corporate Contracts
Frank I. Akers
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Name
President and CEO
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Title
SCHEDULE "A" TO PURCHASE AGREEMENT
PRODUCT DESCRIPTIONS & SELLER'S PRICES
SCHEDULE A
B983503PC027 - GDSL-8 DIGITAL SUBSCRIBER LINE CARRIER
ITEM# ITEM ID DESCRIPTION PART PRICE
US
1 8001173 CTU CO Terminal Unit 990073 [*]
2 8001172 API Alarm & Power Unit 990072 [*]
3 8001174 STR Straight Through Repeater 990064 [*]
4 8001176 ADR2 Add Drop Repeater With 2 Drops 990089 [*]
5 8001177 ADR4 Add Drop Repeater With 4 Drops 990100 [*]
6 8001178 TAD2 Terminal Add Drop With 2 Drops 990090 [*]
7 8001179 TAD4 Terminal Add Drop With 4 Drops 990101 [*]
8 8001192 STRM 239 Repeater Electronics Card 990102 [*]
9 8001175 RTU8 Remote Terminal Unit 81 Lines 990091 [*]
10 8001170 19" Shelf GDSL-8 990071 [*]
LEAD TIME: 15 Days
WARRANTY: 2 Years
TERMS: Net 30 Days
F.O.B.: Origin, Fremont
SHIP VIA: Nationsway Transport Collect
SCHEDULE "B" TO PURCHASE AGREEMENT
RESERVED
SCHEDULE "C" TO PURCHASE AGREEMENT
RESERVED
APPENDIX A
WARRANTY RIGHTS
The Seller warrants that:
. the Product(s) shall be free from defects in material and workmanship for a
period of two (2) years from date of delivery to BC TEL;
. the Product(s) shall conform to and perform in accordance with BC TEL's
specifications for two (2) years from date of delivery to BC TEL;
. any replacement, repair modification, installation, or other service
performed by the Seller shall be warranted to the same extent as above for
the expiration of the warranty period or for ninety (90) days, whichever is
longer.
The Seller's warranty does not apply if the Product has been:
. subject to misuse, neglect, accident or abuse not caused by Seller or by
Seller's authorized agent;
. wired, repaired or altered by anyone other than the Seller or by Seller's
authorized agent;
. improperly installed by other than the Seller or by Seller's authorized
agent;
. used in violation of the appropriate written instructions furnished by the
Seller or by the Seller's authorized agent;
. subjected to improper temperature, humidity or other environmental conditions
and such action is the cause of the damage or malfunction.
NOTE: FOR THE PURPOSES OF THIS WARRANTY INSTALLATION BY EMPLOYEES OF BC
- ----
TEL OR ANY BC TEL AFFILIATE SHALL BE CONSIDERED TO BE INSTALLATION,
WIRING, REPAIR OR ALTERATION BY AN AUTHORIZED AGENT OF THE SELLER.
RETURN AUTHORIZATION PROCEDURES
To authorize a return, BC TEL shall obtain from the Seller and the Seller shall
provide a Return Authorization (RA) number or equivalent authorization. All
returns of Product(s) shall be made within sixty (60) days of the issuance of
the RA number or equivalent authorization. Unauthorized returns shall be
returned to BC TEL at BC TEL's risk and expense.
DEFECTIVE PRODUCT RIGHTS
Unless otherwise agreed, all defective Product(s) under warranty shall be
returned to the Seller for repair or replacement at no charge to BC TEL.
The Seller shall complete repairs and ship the repaired Product(s), or, at its
option, ship replaced Product(s), within ten (10) days of receipt of the
defective Product(s), following procedures of return as directed in the letter
accompanying return of the Product(s).
BC TEL shall bear the risk of in-transit loss or damage only until the
Product(s) is placed in the possession of a freight carrier or courier/third
party intermediary whereupon thereafter the Seller shall bear all risks and
costs for shipping and return to BC TEL.
STANDARDS
All Product(s) supplied or used shall comply with the applicable requirements of
the Industry Canada Standard and/or Canadian Standards Association (CSA) Rules
and Regulations.
All installations and repairs shall also comply with the above Rules,
Regulations and requirements.
INTERFERENCE
If any Product(s) which was installed generates interference harmful to radio
and other communications, then the Seller shall, within thirty (30) days of
notification, provide BC TEL with methods for suppressing such interference, or,
failing that, to accept return of the Product(s), refund to BC TEL of the price
less a reasonable allowance for depreciated value and bear all expenses for
removal, for up to one year from installation
APPENDIX B
REPAIRS WHERE PRODUCT(S) NOT DEFECTIVE OR UNDER WARRANTY
If the Seller determines a returned Product is not defective or is not under
warranty, the Seller shall promptly advise BC TEL in writing of this
determination.
REPAIRS NOT COVERED BY WARRANTY
In addition to warranty repairs, if requested by BC TEL, the Seller agrees to
provide non-exclusive repair services at the Seller's prevailing repair charge
rates on all Product(s) ordered during the period under which Product(s) is
manufactured by the Seller and for a period of five (5) years after the
Product(s) manufactured has been discontinued.
If Product(s) is irreparable, the Seller shall promptly notify BC TEL in writing
and BC TEL may, at its option, purchase replacement(s) from the Seller at prices
as described in Exhibit B or current prices, whichever is lower.
The Seller shall perform all repairs or provide replacement Product(s) in
accordance with the specifications herein. New parts only shall be used. Parts
removed shall become the Seller's property and parts installed shall become BC
TEL's property.
The Seller shall make its best efforts to complete repairs and ship the repaired
Product(s) or, at its option, ship replacement Product(s) within thirty (30)
days of receipt of the defective Product(s).
SERVICE INTERRUPTIONS
In the event of service interruption requiring immediate on-site repair, BC TEL
may require the Seller to commence on-site repairs one (1) business day
following the request for on-site repairs.
IN-HOUSE REPAIRS
BC TEL reserves, at its option, the right to perform in-house repairs to
Product(s) without affecting the Seller's warranties providing the repair is
performed by an employee or subcontractor of BC TEL who has been certified by
the Seller as an authorized repairer.
Repair documentation to be provided to BC TEL shall include, but not limited to,
the following:
i. circuit drawings and explanations;
ii. assembly drawings;
iii. material lists;
iv. art work drawings;
v. component specifications;
vi. supplier cross references;
vii. repair procedure specifications;
viii. engineering change orders; and
ix. generic component piece part cross reference.
Except as provided in Section I of this exhibit, no repair effected by BC TEL
under this Agreement shall affect any warranty afforded to BC TEL.
CONTINUING AVAILABILITY OF SPARES
During the period the Product(s) is manufactured by the Seller and for five (5)
years following discontinuance, the Seller agrees to offer for sale to BC TEL
functionally equivalent replacement and repair components.
Additionally, where the manufacturer discontinues the Product and the Seller is
not the manufacturer, the Seller shall offer repair services for all Product(s)
for a period of five (5) years and Product replacement parts for a period of ten
(10) years.
In the event the Seller is unable to supply such parts themselves or from
another source of supply, the Seller shall, without obligation or charge to BC
TEL, provide to BC TEL all necessary drawings, technical information,
specifications and all other data and expertise to allow BC TEL to either
manufacture or buy such parts. All such information shall be used by BC TEL
only for the maintenance, repair or manufacture of replacement or spare parts
for BC TEL or BC TEL Affiliates.
EMERGENCY REPLACEMENT SERVICE
Additionally, in the event an "out-of-box" failure resulting in a service
impairment occurs and is caused by the Product(s) furnished herein, the Seller
agrees to ship replacement parts within twenty-four (24) hours of verbal
notification by BC TEL, at no charge, providing the defective part is returned
to the Seller within thirty (30) days of receipt of the replacement part.
In the event of an emergency, such as "out of service condition", the Seller
agrees to ship replacement parts within forty-eight (48) hours of verbal
notification by BC TEL, provided that BC TEL shall also maintain a reasonable
quantity of replacement parts for each Product(s). Those emergency replacement
parts shall be billable at the Seller's current list price less applicable BC
TEL discounts.
In order to facilitate emergency repairs, the Seller agrees to provide a normal
working-hours telephone number and an emergency contact after-hours telephone
number.
APPENDIX C
TECHNICAL ASSISTANCE SUPPORT
The Seller agrees to provide to BC TEL, at no additional charge, twenty four
(24) hour per day, seven days per week, all necessary Customer Technical
Assistance support as BC TEL may from time to time require during the warranty
period of the product.
Additionally, if requested by BC TEL, for five (5) calendar days following first
installation of newly developed Product(s), the Seller shall provide, at no
additional charge, a fully qualified engineer conversant with the Product(s) and
installation thereof.
ON-SITE ASSISTANCE
The Seller agrees to be available to furnish on-site assistance, both on an
emergency basis for an out of service condition within twenty-four (24) hours
from BC TEL's request and under normal conditions within forty-eight (48) hours,
at the Seller's prevailing rates.
SUB-CONTRACTING BY BC TEL
In the event BC TEL uses sub-contractors for installation and maintenance
services, such subcontractors shall be chosen from a mutually agreed upon,
confidential list of approved subcontractors.
APPENDIX D
PRODUCT FOR RESALE BY BC TEL
SCOPE
If BC TEL issues an Order for Product or related Service for resale or for
distribution to other customers, the terms, conditions of this Appendix apply.
RESALE
BC TEL may purchase Product and Service for its own use, to provide services to
third parties, for resale to end users, or for distribution. This Agreement
shall not be construed to (i) require BC TEL to purchase any specific amount of
Product or Service, or (ii) require BC TEL to sell any, all or a portion of the
Product or Service it orders, or (iii) unless otherwise specified in this
Agreement, restrict the resale and or distribution of the Product or Service.
RESELL INDEMNITY
The Seller agrees to indemnify and save harmless BC TEL, its directors,
officers, agents, employees and any applicable BC TEL Affiliate and its
directors, officers, agents and employees from and against any and all liability
whatsoever for losses, liens, charges, claims, demands, payments, suits,
actions, penalties, recoveries and judgments (including legal fees and expenses)
of every nature and description brought or recovered against those parties or
the Seller by reason of any product defect, whether of design, manufacture or
otherwise, or any failure by the Seller to honor any warranties, conditions,
repair obligations or representations made by it, or by BC TEL or any BC TEL
Affiliate in accordance with this Agreement in the course of sale of such
products to third parties.
PRODUCT WARRANTIES AND CLAIMS
The Seller warrants that it has or will pass title, free of all liens and
encumbrances, to all Products that are sold or leased to BC TEL and to BC TEL's
end users or customers.
BC TEL will pass through the Seller's warranty, as set forth in Attachment 1 to
this Appendix, to its end users or customers and which warranty shall state that
all Product will conform to all Specifications, statement of work and other
requirements set forth in this Agreement, including any Orders, will be free
from material defects in materials and workmanship, and, except for any Product
manufactured or developed in accordance with a detailed design furnished by BC
TEL or their end users or customers, shall be free from material defects in
design.
TRADEMARK LICENSE
The Seller grants to the BC TEL the nonexclusive right to use the Seller's trade
names and trademark in marketing the Seller's Product. BC TEL agrees to
designate the Product properly and depict the marks accurately.
INVENTORY RETURN
The Seller agrees that BC TEL may at no cost, return for refund or exchange
Product of its selection with a total purchase price of all returned or
exchanged Product not to exceed [*] of the total purchase price for all Product
purchased by BC TEL from the Seller for the previous twelve (12) months
excluding taxes and freight charges.
If the Product shipped in exchange is less in price than the returned Product,
the Seller shall issue BC TEL a credit for the difference in price between the
Product returned and the exchanged Product.
BC TEL will notify the Seller in writing of its intent to return the Product, BC
TEL agrees to ship the returned Product and the Seller agrees to deliver the
exchanged Product FOB: Origin, Freight Collect, within thirty (30) days of
notification by BC TEL.
The Seller agrees to issue a credit for the returned Product within fourteen
(14) days of receipt equal to the actual purchase price of the returned Product.
The Product returned must be in the original condition and carton, if any. Any
return under this section does not limit BC TEL's warranty rights under this
Agreement.
REPORTING
When requested by the Seller, BC TEL shall provide a monthly Report (Point of
Sale) listing each Resale Purchase Order shipped, such Report will detail the
customer, product shipped, part number, description, quantities shipped and
associated net prices.
PRODUCT LITERATURE
The Seller agrees to provide BC TEL with reasonable amounts of Product
literature, at no additional charge, to properly support the Seller's Product.
The Seller hereby grants BC TEL a fully paid license, at no additional charge,
for the term of this Agreement, to copy or otherwise reproduce all or portions
of the Seller's Product brochures, or to incorporate portions of the Seller's
copyrighted material in Product brochures or advertising material composed by BC
TEL. Such reproduction shall not apply to proprietary and/or confidential
information and shall be subject to all applicable copyright laws.
APPENDIX E
TRAINING SUPPORT
Where BC TEL determines it to be appropriate, to support the purchase of the
proposed Product(s) and/or services ("the System"), the successful Seller must
be prepared to provide, at no additional cost, the following training, equipment
and support which shall meet or exceed applicable industry standards:
. BASIC SUPPORT
The Seller shall provide supporting manuals, textbooks, documentation and
reference material in written format no later than upon the delivery or
installation of the System.
. ADVANCED TRAINING
If BC TEL determines that one or more employees will require training to
support or use the system, the Seller shall provide either of the
following:
a) if practical, the Seller shall provide such training as is, in BC
TEL's opinion, required to certify such employees as BC TEL may
select as qualified in-house instructors in the proposed System.
b) if in BC TEL's opinion, the use of BC TEL instructors is not
practical, then the Seller shall provide qualified instructors
for such employees as BC TEL may select to train to support or
use the proposed System.
In either event, the location of training shall be chosen by BC TEL.
. EQUIPMENT SUPPORT
The Seller shall provide to BC TEL all equipment necessary to support
initial and on-going training requirements on the proposed System, timed to
support BC TEL's training schedule.
Training equipment shall include all enhancements and/or upgrades to the
proposed System as are or may become available and shall include all
warranties and service support as apply to the purchase of the proposed
System.
. ADDITIONAL/FOLLOW-UP TRAINING
Where BC TEL determines additional or follow-up training is necessary, the
Seller shall provide such further training as may be required by BC TEL.
APPENDIX F
SOFTWARE LICENSE
BC TEL or its officers, agents and employees, and/or any applicable BC TEL
Affiliate and its officers, agents and employees, are hereby granted a non-
exclusive, paid-up, non transferable license to use software Product(s) or
software which ordinarily comes with the Product(s), only in connection with the
Product(s).
The software provided by the Seller to BC TEL, together with any enhancements,
modifications, extensions or expansions thereof shall be the property of the
Seller and treated as a Trade Secret by BC TEL.
BC TEL agrees to use its best efforts to:
. modify the software @l with the prior written consent of the Seller;
. reproduce or copy the software, in whole or in part, provided Seller's
copyright and/or proprietary notices are also reproduced or copied
therewith, for the sole use by BC TEL in connection with the use of
the Product(s) only in accordance with the law, and with the prior,
written consent of the Seller;
. only disclose proprietary information regarding the software to its
employees on a "need to know" basis, without the prior written consent
of the Seller;
. hold all aspects of the software including the documentation or other
material associated with the software in confidence for the benefit of
the Seller and Seller's suppliers, as appropriate; and
. utilize the software or any portions or aspects (including any methods
or concepts utilized which are trade secrets) solely in conjunction
with the Product(s).
The obligations of BC TEL shall survive termination of this Agreement and shall
continue even if the software is no longer utilized with the Product(s).
However, BC TEL's obligations of confidentiality will not extend to information
or data which is now available to the general public nor to that which becomes
available by reasons of unlawful acts or failures to act not attributable to BC
TEL.
SOFTWARE VIRUS
The Seller certifies and covenant that software provided to BC TEL whether in
the form of disk or otherwise, has been tested to ensure it is free from viruses
and the Seller hereby certifies that it has taken steps to ensure that software
delivered by it to BC TEL is free of such viruses. The Seller agrees to
indemnify and hold harmless BC TEL from and against any claims for loss or
damages arising from delivery of, or use of software containing viruses.
SOFTWARE ACCESS CONFIDENTIALITY
If Seller is given access, whether on-site or through remote facilities, to BC
TEL or any BC TEL Affiliate (BC TEL) computer or electronic data storage system
in order for Seller to accomplish the work called for in this Agreement, Seller
shall limit such access and use solely to perform work within the scope of this
Agreement and shall not access or attempt to access any computer system,
electronic file, software or other electronic services other than those
specifically required to accomplish the work required under this Agreement.
Seller shall limit such access to those of its employees who are qualified and
required, subject to BC TEL required written authorization, to have such access
in connection with this Agreement, and shall strictly follow all BC TEL's
security rules and procedures for use of BC TEL's electronic resources. All
user identification numbers and passwords disclosed to Seller and any
information obtained by Seller as a result of Seller's access to and use of BC
TEL's computer and electronic data storage systems shall be deemed to be, and
shall be treated as, BC TEL Confidential Information under applicable provisions
of this Agreement. Seller agrees to cooperate with BC TEL in the investigation
of any apparent unauthorized access by Seller to BC TEL's computer or electronic
data storage systems or unauthorized release of Confidential Information by
Seller.
CENTURY COMPLIANCE
A) When used in this Exhibit with initial capital letters, the following terms
have the respective meanings given below.
i) "Procured System" means the computer software, computer firmware,
computer hardware (whether general or special purpose), documentation,
data, and other similar or related items of the automated,
computerized, and/or software system(s) that are provided by or
through Seller pursuant to this Agreement, or any component part
thereof, and any services provided by or through Seller in connection
therewith.
ii) "Calendar-Related" refers to date values based on the Gregorian
calendar, as defined in Encyclopedia Britannica, 15th edition, 1993,
page 476, and to all uses in any manner of those date values,
including without limitation manipulations, calculations, conversions,
comparisons, and presentations.
iii) "Date Data" means any Calendar-Related data value in the inclusive
range January 1, 1990, through December 31, 2050, which the Procured
System uses in any manner.
iv) "System Date" means any Calendar Related data value in the inclusive
range January 1, 1985, through December 31, 2035 (including the
natural transition between such values), which the Procured System
shall be able to use as its current date while operating.
v) "Century Compliant" means that the Procured System satisfies the
requirements set forth in Clause (B), (C), and (D) below.
vi) "Century Noncompliance" or "Century Noncompliant" means any failure of
the Procured System to be Century Compliant.
B) Seller represents that, in connection with Calendar-Related data and
Calendar-Related processing of Date Data or of any System Date, the
Procured System will not malfunction, will not cease to function, will not
generate incorrect data, and will not produce incorrect results.
C) Seller further represents that, in connection with providing Calendar-
Related data to and accepting Calendar-Related data from other automated,
computerized, and/or software systems and users via user interfaces,
electronic interfaces, and data storage, the Procured System represents
dates without ambiguity as to century.
D) Seller further represents that Seller has verified through testing that the
Procured System is Century Compliant and that testing included, without
limitation, each of the following specific dates and the transition to and
from each such date: December 31, 1998; January 1, 1999; September 9, 1999;
September 10, 1999; December 31, 1999; January 1, 2000; February 28, 2000;
February 29, 2000; March 1, 2000; December 31, 2000; January 1, 2001;
December 31, 2004; and January 1, 2005.
E) These representations survive the expiration or earlier termination of this
Agreement.
INTERFACING
If the Procured System is a Commercial-Off-The-Shelf (COTS) product, it shall
have the present capability, which can be readily utilized by BC TEL, of
providing Calendar-Related data to and accepting Calendar-Related data from
other automated, computerized, and/or software systems and users in a four-digit
CCYY format, where CC are the two digits expressing the century and YY are the
two digits expressing the year with that century (e.g., 1996, 2003 and 2027).
CENTURY NONCOMPLIANCE REMEDY
In the event the Procured System is Century Noncompliant in any respect, Seller
shall, at no cost to BC TEL, promptly correct the Century Noncompliance and
provide the corrected Century Compliant Procured System to BC TEL within ninety
(90) days after receipt of a written request from BC TEL, unless otherwise
agreed by BC TEL in writing.
NONCOMPLIANCE NOTICE
In the event Seller becomes aware of (i) a possible or an actual Century
Noncompliance in the Procured System or (ii) any international, governmental,
industrial, or other standard (proposed or adopted) regarding Calendar-Related
data and/or processing, or it begins any significant effort to conform the
Procured System to any such standard, Seller shall promptly inform BC TEL of all
relevant information (and timely provide BC TEL updates to such information)
with respect to Seller's knowledge. Seller shall respond promptly and fully to
inquiries by BC TEL (and timely provide BC TEL updates to such information) with
respect to Seller's knowledge. Seller shall respond promptly and fully to
inquiries by BC TEL (and timely provide updates to any responses provided to BC
TEL) interalia, inquiries with respect to (i) any possible Century Noncompliance
in the Procured System or to (ii) any international, governmental, industrial,
or other standards. In the foregoing, the use of "timely" means promptly after
the relevant information becomes known to or is developed by or for Seller.