EXHIBIT 10.8
Agreement No. C981105PC001
PRODUCT PURCHASE AGREEMENT
BETWEEN
GTE COMMUNICATION SYSTEMS CORPORATION
AND
GODIGITAL TELECOMMUNICATIONS INC.
[*]=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.
TABLE OF CONTENTS
PAGE
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1. PARTIES.............................................................. 1
2. TERM................................................................. 1
3. DEFINITIONS.......................................................... 1
4. SCOPE................................................................ 2
5. CUSTOMER'S OPTIONS UNDER THE AGREEMENT............................... 2
6. SOFTWARE LICENSE..................................................... 3
7. PRICE AND PRICE REVISIONS............................................ 3
8. PURCHASE ORDERS; CANCELLATION OF PURCHASE ORDERS;
REVOCATION OF ACKNOWLEDGEMENT........................................ 4
9. PAYMENT TERMS, BILLING............................................... 5
10. RECORDS AND REPORTS.................................................. 5
11. PRECEDENCE OF DOCUMENTS.............................................. 6
12. DELIVERY............................................................. 6
13. INSPECTION AND ACCEPTANCE............................................ 7
14. PRODUCT WARRANTIES, SERVICES AND SUPPORT............................. 8
15. INFRINGEMENT......................................................... 8
16. CONFIDENTIAL INFORMATION............................................. 9
17. PUBLICITY AND DISCLOSURE............................................. 11
18. COMPLIANCE WITH LAWS................................................. 11
19. FORCE MAJEURE........................................................ 12
20. ASSIGNMENT........................................................... 12
21. TAXES................................................................ 13
TABLE OF CONTENTS
PAGE
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22. PLANT AND WORK RULES AND RIGHT OF ACCESS............................... 13
23. INDEMNIFICATION AND INSURANCE.......................................... 14
24. RELATIONSHIP OF PARTIES................................................ 15
25. TERMINATION............................................................ 16
26. DISPUTE RESOLUTION..................................................... 16
27. NOTICES................................................................ 18
28. PRODUCT SAFETY NOTIFICATIONS/TOXIC SUBSTANCES.......................... 18
29. PRODUCT CHANGE/DISCONTINUANCE.......................................... 19
30. INVENTORY RETURN....................................................... 19
31. GOVERNMENT CONTRACT PROVISIONS......................................... 20
32. CENTURY COMPLIANCE..................................................... 20
33. STANDARDIZATION POLICIES, PROCEDURES AND TERMS......................... 20
34. NONWAIVER.............................................................. 20
35. SEVERABILITY........................................................... 20
36. SECTION HEADINGS....................................................... 20
37. SURVIVAL OF OBLIGATIONS................................................ 20
38. CHOICE OF LAW AND JURISDICTION......................................... 20
39. ENTIRE AGREEMENT....................................................... 21
SIGNATURES............................................................. 21
EXHIBIT A: GTE AFFILIATED ENTITIES
EXHIBIT B: PRODUCT AND SERVICE PRICES
EXHIBIT C: PURCHASE FOR INTERNAL USE
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TABLE OF CONTENTS
PAGE
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EXHIBIT D: PURCHASE FOR RESALE
EXHIBIT E: SIGNATURE PAGE FOR ATTACHMENTS
ATTACHMENT 1 - EDI
ATTACHMENT 2 - TRAINING
EXHIBIT F: SUPPLIER WBE/MBE/SDV EXPENDITURES REPORT
EXHIBIT G: SHIPPING AND CARRIER ROUTING INSTRUCTION
EXHIBIT H: PRODUCT DELIVERY INTERVAL
EXHIBIT I: CENTURY COMPLIANCE
EXHIBIT J: STANDARDIZATION POLICIES, PROCEDURES AND TERMS
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PRODUCT PURCHASE AGREEMENT
1. PARTIES
(a) This Product Purchase Agreement (Agreement) is made between GoDigital
Telecommunications Inc., a California corporation, with offices at
41305 Albrae Street, Fremont, CA 94538 (Seller) and GTE Communication
Systems Corporation (Customer), a Delaware corporation, acting through
its GTE Supply Division, with offices at 700 Hidden Ridge, Irving,
Texas 75038, for the benefit of itself and GTE affiliated entities
listed at Exhibit A (Affiliates), which may be changed by GTE Supply
upon written notice to Seller.
(b) An Affiliate that issues an Order hereunder shall also be a Customer
and may enforce the terms and conditions of this Agreement with
respect to any Product or Service purchased by such Affiliate as
though it were a direct signatory to the Agreement.
2. TERM
This Agreement shall be effective on March 1, 1998 and shall continue in
effect until March 1, 2002 unless earlier terminated or extended. This
Agreement shall be automatically terminated unless renewed by the mutual
written agreement of the parties prior to the expiration of the term.
3. DEFINITIONS
The terms defined in this Section shall have the meanings set forth below
whenever they appear in this Agreement, unless the context in which they
are used clearly requires a different meaning or a different definition is
described for a particular Section or provision:
(a) "Order" means a purchase order, or other written communication and/or
electronic transmission that Customer may deliver to Seller for the
purchase of Product and/or Service.
(b) "Product" means all goods, supplies, materials, parts, components,
assemblies, and associated Software and documentation described in
Exhibit B.
(c) "Service" means the Product-related work to be performed by Seller
under this Agreement, including installation, maintenance, repair, and
other related services.
(d) "Software" means any programs, in object form, including operating
programs in machine readable form and feature descriptions or
firmware, and documentation described in Exhibit B or identified in an
Order. Throughout this Agreement the term Software, as defined above,
is included in the term Product. "Software" does not include source
code unless specifically stated in this Agreement, an Order, or other
document.
(e) "Use" as it relates to Software shall mean: (i) the reading by
authorized users into or out of hardware memory of the Software and
the execution of the Software whether in whole or in part by any
individual having authorized access to any Product on
which the Software is operated and shall include employees of
Customer, its agents, or contractors and/or in the cases of Customer
providing services to third parties or for resale, the third parties'
employees, agents, or contractors; (ii) to transfer into, and store
in, equipment selected by the Customer all or any portion of the
Software; (iii) and to process and execute instructions, statements
and data included in, or input to, the Software.
(f) "Specifications" shall mean specifications for the Product or Service
as set forth in an Order, as well as Seller's then current published
specifications and user documentation.
4. SCOPE
(a) This Agreement is for the benefit of all U.S. and foreign Affiliates
of Customer. Customer may purchase for its own use, to provide
services to third parties, for resale to end users, or for
distribution, Seller's Product (except that for Software, Customer
purchases a license as to the Software) and Service.
(b) This Agreement is nonexclusive and shall not be construed to require
Customer to purchase any specific amount of Product or Service from
Seller or to require Customer to sell any, all or a portion of Product
or Service it orders, or restrict the purchase, resale and/or
distribution of Product and/or Service to any geographic area.
(c) This Agreement does not by itself order any Product or Service.
Customer shall order Product or Service by submitting an Order
referencing this Agreement by number, and Seller shall fulfill the
Order as specified in Section 8, for (i) Product or Service listed in
Exhibit B at the prices specified and (ii) other Product or Service
for which Seller accepts an Order at the price as quoted to Customer
in writing.
(d) In order to facilitate international purchases of Products, the
parties may find it convenient to enter into separate agreements
between Seller and Customer and/or their respective affiliates
authorized to conduct, or to negotiate for the right to conduct,
business in foreign countries. The parties agree to use their best
commercially reasonable efforts, to assure that the terms and
conditions of any such agreements are consistent with the terms and
conditions of this Agreement, subject to applicable requirements of
local law and business practice.
(e) Under no circumstances shall any Seller shrink-wrap license be given
any force or effect in connection with any Software delivered to
Customer pursuant to this Agreement, except as specifically set forth
herein.
5. CUSTOMER'S OPTIONS UNDER THE AGREEMENT
(a) If Customer orders Product and/or Service for internal use, then the
provisions of Exhibit C, PURCHASE FOR INTERNAL USE, shall apply.
Internal use includes use by Customer, its Affiliates, employees,
agents and subcontractors, and use whereby Customer provides services
to third parties in the normal course of its business.
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(b) If Customer orders Product and/or Service for resale or distribution,
then the provisions of Exhibit D, PURCHASE FOR RESALE, shall apply.
(c) Those provisions (EDI Trading Agreement, Bar Code Program, Training)
of Exhibit E, SIGNATURE PAGE FOR ATTACHMENTS, initialed by the parties
on the signature page thereof are incorporated in this Agreement.
6. SOFTWARE LICENSE
(a) Operating System Software License - For Product that includes Software
---------------------------------
(operating program in machine readable form and feature descriptions
or firmware) furnished with or embedded in Product (Operating System
Software), for the life of purchased Product, or during the term
Product is leased, as applicable, Seller grants to Customer and any
subsequent purchaser, assignee, or lessee of said Product a
nonexclusive license to use said Operating System Software in
connection with Product with which it is delivered. Customer and any
subsequent purchaser, assignee, or lessee may copy the Operating
System Software for use on such, Product with which it was originally
delivered for archival purposes on an alternate Product for disaster
recovery purposes, as applicable, but shall not otherwise knowingly
reproduce the original Operating System Software or make copies of the
Operating System Software for distribution to others. Title to such
Software shall remain with Seller.
(b) The license for Software other than Operating System Software and
additional terms and conditions applicable to the license of Operating
System Software are set forth in Exhibit C for internal use and
Exhibit D for resale and distribution.
7. PRICE AND PRICE REVISIONS
(a) If Seller offers more favorable prices, terms, conditions, warranties,
or other benefits to any other commercial Customer, for like terms and
conditions, volumes and quantities, during the term of this Agreement,
then, at the option of Customer, this Agreement and any Order affected
thereby will be modified to include such more favorable prices, terms,
conditions, warranties or benefits. There is no minimum order quantity
or volume required from Customer when ordering Product and Service,
unless specified otherwise in an Exhibit.
(b) The net prices for all Product or Service ordered by Customer are
those prices specified in Seller's current U.S. or International Price
List, less Customer's applicable discounts and are set forth in
Exhibit B, unless Section 7.(a) applies.
(c) The Product and Service prices specified in Seller's price lists,
referenced above, shall not increase for the first twelve (12) months
of the Agreement term. Subject to Section 7.(a), Seller may then
propose price increases once in each subsequent twelve (12) month
period of the Agreement by giving written notice to Customer at least
ninety (90) days prior to the proposed effective date of the new
pricing. Such price increases shall not exceed [*] of the previous
price, unless specified otherwise in an Exhibit. Seller shall honor
all net prices for Product and
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Service for which Orders have been issued prior to the effective date
of such increase.
(d) Any price decrease or discount increase shall be effective immediately
upon announcement by Seller and shall apply to all Orders that have
not been processed by Customer for payment to Seller.
(e) Under special circumstances, Customer may purchase Product and Service
pursuant to the terms of this Agreement at prices and discounts quoted
by Seller that are more favorable than those prices and discounts.
Such special circumstances include, but are not limited to, (1)
competitive allowances; (2) purchases that provide Seller with
additional sales or manufacturing efficiencies; and (3) Seller
promotional offers.
(f) Quotations provided by Seller shall be valid for ninety (90) days from
their date unless otherwise mutually agreed, and if there is a price
increase, the price contained on the quotation will be honored until
its expiration.
8. PURCHASE ORDERS; CANCELLATION OF PURCHASE ORDERS; REVOCATION OF
ACKNOWLEDGEMENT
(a) An Order may be mailed, sent by facsimile transmission or electronic
data interchange (EDI). Prior to initiating an EDI transaction, the
parties will execute an EDI Trading Agreement which will set forth the
terms and conditions of EDI transactions.
(b) Seller shall be obligated to acknowledge Orders within ten (10) days
of receipt, without conditioning such acknowledgement on the
acceptance by Customer of any terms inconsistent with or in addition
to those set forth in this Agreement. Upon acknowledgement, the Order
and related acknowledgement shall constitute a binding contract for
the purchase and sale of the applicable Product and/or Service
governed by the provisions of this Agreement, as such provisions may
be modified as provided herein.
(c) Seller may enforce each Order only against the Affiliate that has
submitted the Order. Default by an Affiliate shall not affect any
other Affiliate party to this Agreement.
(d) If an Affiliate shall be in material breach or default of this
Agreement, including, but not limited to, timely payment for Product
purchased and such breach shall continue for a period of thirty (30)
days after receipt of Seller's written notice, then, in addition to
all other rights and remedies of law or equity or otherwise, Seller
shall have the right to suspend delivery of Product on outstanding
Orders or revoke existing acknowledgements only with respect to the
Affiliate.
(e) If Seller shall be in material breach or default of this Agreement,
and such breach shall continue for a period of thirty (30) days after
Seller's receipt of Customer's written notice thereof, then, in
addition to all other rights and remedies of law or equity or
otherwise, Customer shall have the right to immediately cancel all
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applicable Orders without any obligation or liability to Seller for
said cancellation. However, if Seller fails to tender delivery of
Product or render Service on the respective date agreed upon or as set
forth in Seller's acknowledgement, then Customer shall have the right
to immediately cancel all applicable Orders without further obligation
or liability to Seller for said cancellation or any obligation to
provide Seller a time period to cure said breach.
(f) Unless specified otherwise in an Exhibit, Customer may cancel or
reschedule Orders for convenience, in whole or in part, without
obligation or liability, by providing written notice to Seller at
least ten (10) days before scheduled ship date of Product or date
Service is to be rendered.
9. PAYMENT TERMS, BILLING
(a) Payment for Product shall be due thirty (30) days from date of receipt
of goods, or receipt of an undisputed invoice, whichever occurs later,
unless payment terms more favorable to Customer are stated on Seller's
invoice and Customer elects to pay on such terms. Payment for related
Service, unless specified otherwise in an Exhibit, shall be due thirty
(30) days after receipt of an undisputed invoice, provided all
obligations of Seller have been performed. However, payment shall not
indicate acceptance of any Product or Service performed.
(b) Invoices for charges specified in an Order shall be submitted by
Seller to the address specified in the Order. Invoices shall include,
but not be limited to, (i) Order number; (ii) Order line number; (iii)
Product identification number; (iv) ship to address; (v) quantity
shipped and billed or quantity of service units performed and billed;
(vi) net unit cost; and (vii) net invoice amount.
10. RECORDS AND REPORTS
(a) Seller shall maintain complete and accurate records of all invoices,
all amounts billable to and payments made by Customer, in accordance
with generally accepted accounting practices. Seller shall retain and
make available upon request such records for a period of three (3)
years from the date of final shipment of Product or rendering of
services covered by this Agreement.
(b) When requested by GTE Supply, Seller shall, for all Orders placed
directly with Seller, provide GTE Supply a monthly purchase report by
ordering location, listing Product and Service purchased under this
Agreement, including description, part number, quantities shipped, and
associated list and net prices.
When requested by Seller, Customer shall for resale purchase orders
shipped from GTE Supply's inventory, provide Seller, a monthly report
(point of sale) by customer, listing Product shipped, part number,
description, quantities shipped, and associated net prices.
(c) Seller must make an accounting of dollars that are subcontracted to or
whereby Seller's Product contains content from firms that are Small
Businesses, Women Owned Businesses, Minority Owned Businesses, or
Service Disabled Veteran
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Owned Businesses under the Small Business Administration and/or other
government regulations. These dollars shall be reported in writing, on
a quarterly basis, utilizing the instructions and form set forth in
Exhibit F, to the following address:
Group Manager-Supplier Diversity & Administration
HQA06R01
GTE Supply
5615 High Point Drive
Irving, TX 75038
11. PRECEDENCE OF DOCUMENTS
(a) All quotations, Orders, acknowledgements, and invoices issued pursuant
to this Agreement shall be subject to the provisions contained in this
Agreement. The terms and conditions of this Agreement will control
over any conflicting or inconsistent terms contained in any quotation,
Order, acknowledgement or invoice.
(b) No additional terms contained in any quotation, Order, acknowledgement
or invoice shall be valid for a specific transaction, unless agreed in
writing by authorized representatives of the parties.
12. DELIVERY
(a) Unless otherwise specified in an applicable Order, title to a Product
sold pursuant to this Agreement shall pass at the time of shipment by
Seller as described in Section 12.(b). Any loss or damage to a Product
prior to the passing of title shall be for the account and risk of
Seller and after the passing of title shall be for the account and
risk of Customer.
(b) Shipments of Product shall be made FOB Origin, freight collect or as
otherwise specified on individual Order. When Customer requests Seller
to arrange the transportation of the Product, Seller shall ship
Product freight collect in accordance with the GTE Shipping and
Carrier Routing Instruction, Exhibit G (which Customer may revise and
provide to Seller), unless otherwise specified on Customer's Order. If
Seller is instructed by Customer to ship prepaid and added to the
invoice, Seller shall select a carrier based on the best rate as
negotiated by Seller, and Customer shall only pay Seller's net
transportation costs, that include, but are not limited to, all
applicable discounts, allowances and refunds.
(c) Failure of Seller to ship Product in accordance with Customer's
freight routing instructions may result in charge-backs to Seller for
excess freight charges.
(d) Unless instructed otherwise by Customer. Seller shall, for Orders
placed, (i) see that all subordinate documents bear Customer's Order
number; (ii) enclose a packing list with each shipment and when more
than one package is shipped, identify the one containing the packing
list; (iii) mark Customer's Order number on all packages and shipping
papers; (iv) render invoices showing Customer's Order number; (v)
render separate invoices for each shipment or Order; (vi) forward
shipping notices with
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invoices; (vii) invoice Customer by mailing or otherwise transmitting
invoices, bills, and notices to the billing address on the Order; and
(viii) make available a bill of lading upon request.
(e) Standard delivery intervals for Product shall be specified in Exhibit
H and may be amended only by a written document signed by both
parties. Standard delivery intervals begin from the date of Seller's
receipt of Customer's Order.
(f) Seller shall ship Product to Customer within (i) the delivery
intervals specified in Exhibit H (which do not include in-transit
interval), or (ii) as otherwise provided by Seller to Customer in a
firm price quotation, purchase order acknowledgement or other written
means (provided that such time period is not longer than the time
period specified in Exhibit H without Customer's written request or
agreement). If Seller fails to meet a delivery date, Customer may
require an expedited delivery, with any additional costs to be borne
by Seller, or Customer may cancel all or part of the Order in
accordance with Section 8. If Product is delivered ahead of the
delivery date, Customer may withhold payment for Product until after
the specified delivery date or place Product in storage, at Seller's
expense, until the specified delivery date.
(g) Product shall be packaged for shipment, at no additional charge, in
commercially suitable containers, consistent with all applicable laws,
that provide protection against damage during the shipment, handling
and storage of the Product in reasonably dry, unheated quarters.
13. INSPECTION AND ACCEPTANCE
(a) All Products shall be subject to inspection by Customer after delivery
to determine conformity with Customer's Order and Seller's advertised
or published specifications. Unless otherwise mutually agreed,
Customer shall have a period of sixty (60) days following arrival of
Product at the delivery destination specified by Customer within which
to inspect the Product for conformity with Customer's Order and
Seller's advertised and published specifications and to provide Seller
with written notice of any discrepancy or rejection. If the Product is
to be installed by Customer, Customer shall have the longer of thirty
(30) days following such installation or following completion of any
Seller authorized testing period within which to complete such
inspection, provided that installation shall occur not more than
thirty (30) days from delivery. Following notification by Customer, if
Seller is unable to repair or replace Product that does not conform,
in whole or in part, within five (5) business days or such lesser time
as is determined by Customer to be reasonable, then Customer may
return Product to Seller, at Seller's risk and expense, and receive a
refund of all amounts paid with respect to the returned Product. For
such Product returns, Customer shall notify Seller and arrange for the
return of Product.
(b) Inspection or failure to inspect on any occasion shall not affect
Customer's rights under the "WARRANTY" provisions of this Agreement or
any other rights or remedies available to Customer, under this
Agreement.
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(c) If Seller is to perform installation of Product, Customer's acceptance
of Product will be required. Product shall be accepted after
successful conclusion of Seller's standard test procedures (or other
mutually agreed upon evaluation and test procedures), and Customer's
written concurrence that Product has successfully completed such test
procedures, provided that such test procedures verify Product
performance in accordance with Seller's advertised or published
specifications or other mutually agreed upon specifications for such
Product. If Product fails to meet acceptance criteria, Seller shall
have thirty (30) days to correct all deficiencies, unless otherwise
mutually agreed. If, after the cure period, Product still fails to
perform, Customer shall have the right to reject Product and return
Product to Seller at Seller's expense. Any amounts paid to Seller by
Customer shall be refunded to Customer within thirty (30) days after
return of Product. The purchase price for such Product shall also be
credited against any volumes under this Agreement.
(d) Customer's right to inspect and test does not relieve Seller from its
testing, inspection and quality control obligations.
14. PRODUCT WARRANTIES, SERVICES AND SUPPORT
Seller shall provide warranties and Product services and support as set
forth in Exhibits C and D.
15. INFRINGEMENT
(a) Seller shall indemnify, defend and hold harmless Customer and its
affiliates, shareholders, directors, officers, employees, contractors,
and agents from all claims, suits, demands, damages, liabilities,
expenses (including reasonable fees and disbursements of counsel)
judgments, settlements and penalties of every kind ("Claims") arising
from or relating to any actual or alleged infringement or
misappropriation of any patent, trademark, copyright, trade secret or
any actual or alleged violation of any other intellectual property
rights arising from or in connection with the Products provided or the
Services performed under this Agreement. Notwithstanding anything to
the contrary contained in this Agreement (including, but not limited
to, Section 23, INDEMNIFICATION AND INSURANCE), the provisions of this
Section 15.(a) shall govern the rights of Customer and its affiliates,
shareholders, directors, officers, employees, contractors, and agents
to indemnification for Claims of infringement, misappropriation or
violation of intellectual property rights.
(b) The procedures set forth in Section 23(b) shall apply in the case of
any claims of infringement, misappropriation or violation of
intellectual property rights for which indemnification will be sought.
(c) Without limitation of 15(a), if the sale or use of the Products or
Services is enjoined, Seller shall, at Customer's option and Seller's
expense, either:
(1) Procure for Customer the right to use the Products or Services;
(2) Replace the Products or Services with equivalent, noninfringing
Products or Services;
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(3) Modify the Products or Services so they become noninfringing; or
(4) Remove the Products or Services and refund the purchase price,
including transportation, installation, removal and other
incidental charges.
16. CONFIDENTIAL INFORMATION
(a) In order for the parties to perform their respective obligations under
this Agreement, it may be necessary for either party to disclose to
the other technical, Customer, personnel and/or business information
in written, graphic, electronic, oral or other tangible or intangible
forms including, but not limited to, specifications, records, data,
computer programs, drawings, schematics, know-how, notes, models,
reports and samples. Such information may contain proprietary or
confidential material, or material subject to applicable laws
regarding secrecy of communications or trade secrets (Confidential
Information).
(b) Each party acknowledges and agrees:
(1) That all Confidential Information acquired by either party from
the other shall be and shall remain the exclusive property of the
disclosing party;
(2) To identify in writing as confidential or proprietary, or mark as
confidential or proprietary, any information that either party
deems to be Confidential Information;
(3) That information that is disclosed orally shall not be considered
Confidential Information unless it is reduced to writing or to a
written summary that identifies the orally-disclosed topics to be
considered as Confidential Information and such writing is
provided to the recipient at the time of disclosure or within
thirty (30) days thereafter;
(4) To receive in confidence any Confidential Information; to limit
access to such Confidential Information to authorized employees,
agents and contractors (covered by obligations at least as
restrictive as those set forth in this Section 16) who have a
need to know the Confidential Information in order for the party
to perform its obligations under this Agreement and who have been
informed of the confidential and proprietary nature; not to
disclose, reveal or divulge any Confidential Information or
authorize any other person to do so except (i) as specifically
approved in writing by the disclosing party or (ii) as required
in connection with the due and proper performance by the
receiving party of its obligations under this Agreement (which
shall not be deemed to include disclosure to consultants,
advisors or other third parties which are not full-time, regular
employees of the receiving party);
(5) To use such Confidential Information only for the purposes of
performing their obligations under this Agreement and for such
other purposes as may be agreed upon between the parties in
writing;
(6) If a receiving party receives a request to disclose any
Confidential Information (whether pursuant to a valid and
effective subpoena, an order issued by a
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court or other governmental authority of competent jurisdiction
or otherwise) on advice of legal counsel that disclosure is
required under applicable law, such party agrees that, prior to
disclosing any Confidential Information, it shall (i) notify the
disclosing party of the existence and terms of such request or
advice, (ii) cooperate with the disclosing party in taking
legally available steps to resist or narrow any such request or
to otherwise eliminate the need for such disclosure, if requested
to do so by the disclosing party, and (iii) if disclosure is
required, use its best efforts to obtain a protective order or
other reliable assurance that confidential treatment will be
afforded to such portion of the Confidential Information as is
required to be disclosed;
(7) Upon request of the disclosing party, to return all Confidential
Information to such party, or to destroy any documents, computer
media or records, in written, graphic, or other tangible form,
that contain any Confidential Information;
(8) That the obligations with respect to Confidential Information
shall extend for a period of five (5) years following the date of
initial disclosure of that Confidential Information, and such
obligations shall extend beyond completion of the term of this
Agreement; and
(9) That nothing contained in this Section 16 shall be construed as a
license or permission to make, use, or sell the Confidential
Information or Products derived therefrom.
(c) The obligations contained in this Section 16 do not apply to
Confidential Information that:
(1) As shown by reasonably documented proof, was in the receiving
party's possession prior to receipt thereof from the disclosing
party;
(2) As shown by reasonably documented proof, was received by one
party in good faith from a third party not subject to a
confidential obligation to the other party;
(3) Now is or later becomes publicly known through no breach of
confidential obligation by the receiving party;
(4) Is disclosed pursuant to a requirement imposed by a governmental
agency or is otherwise required to be disclosed by operation of
law, provided that the party receiving the request for the
information has fully complied with its obligations under Section
16(b)(6);
(5) Was developed by the receiving party without the developing
persons having access to any of the Confidential Information
received from the other party;
(6) Is authorized in writing by the disclosing party to be released
or is designated in writing by the source as no longer being
confidential or proprietary.
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(d) It is agreed that a violation of any of the provisions of this Section
16 will cause irreparable harm and injury to the disclosing party and
that party shall be entitled, in addition to any other rights and
remedies it may have at law or in equity, to seek an injunction
enjoining and restraining the receiving party from doing or continuing
to do any such act and any other violations or threatened violations
of this Section 16.
17. PUBLICITY AND DISCLOSURE
Each party agrees not to provide copies of this Agreement, or otherwise
disclose the terms of this Agreement, to any third party without the prior
written consent of the other party; provided, however, that either party
may, without obtaining the other's consent, provide copies or make
disclosures to prospective purchasers of the business of such party or of
any affiliate of such party; or for the purpose of obtaining third party
financing; and any regulatory or judicial body requesting such information.
The parties further agree to submit to one another, for written approval,
all advertising, sales promotion, press releases and other publicity
matters relating to the Product furnished or the Service performed pursuant
to this Agreement, when its respective name or mark is mentioned or
language from which the connection of said name or mark may be inferred or
implied. Any approval required under this Section shall not be unreasonably
withheld or delayed by either party.
18. COMPLIANCE WITH LAWS
(a) Seller shall comply with the provisions of all applicable federal,
state, county and local laws, ordinances, regulations and codes
(including procurement of required permits or certificates) in
manufacturing, assembling, selling and providing Product and in
performing its other obligations under this Agreement, including, but
not limited to, the standards promulgated under the Occupational
Safety and Health Act, Executive Order 11246, as amended, Section 503
of the Vocational Rehabilitation Act of 1973, as amended, the Vietnam
Era Veterans Readjustment Assistance Act of 1974, the Immigration
Reform and Control Act of 1986, the Civil Rights Acts of 1964 and
1991, the Americans with Disabilities Act, the Age Discrimination in
Employment Act, and all rules and regulations relative to these Acts
and other applicable equal employment opportunity laws, rules and
regulations, which are expressly incorporated herein by reference.
Irrespective of whether a specification is furnished, if Product or
containers furnished are required to be constructed, packaged,
labeled, or registered in a prescribed manner, Seller shall comply
with applicable federal, state or local laws. Seller shall indemnify
Customer against all claims, loss or damage sustained because of its
noncompliance.
(b) If any persons furnished under the Agreement by Seller have a
disability as defined in the Americans with Disabilities Act, 42
U.S.C.A. 12101 et seq. (the ADA), Seller shall, where required by
Title I of the ADA and at its sole expense, provide "reasonable
accommodations" that may be required under Title I of the ADA
including, but not limited to, "auxiliary aids and services" to make
aural, visual materials or interpreters available to individuals
furnished by Seller with impairments so that such individuals are able
to perform the essential functions of the job they are contracted to
perform. Seller further agrees to indemnify and defend Customer for
any losses, fines, reasonable attorney fees, or other penalties that
may be incurred
11
or assessed upon Customer due to Seller's failure to comply with the
provisions of the Title I of the ADA with respect to the persons
furnished by Seller.
(c) Product furnished shall comply, to the extent applicable, with the
requirements of the Federal Communications Commission's Rules and
Regulations, as may be amended, including those sections concerning
the labeling of such Product and the suppression of radiation to
specified levels. If the Product generates interference harmful to
radio communications, and such Product was installed in accordance
with such Rules and Regulations, then Seller shall provide to Customer
methods for suppressing the interference. If the interference cannot
be reasonably suppressed, Seller shall accept return of the Product,
refund to Customer the price paid for the Product and bear all
expenses for removal and shipment of such Product. Nothing herein
shall be deemed to diminish or otherwise limit Seller's obligations
under the "WARRANTY" provisions of this Agreement herein or any other
rights or remedies available to Customer, whether at law or in equity.
19. FORCE MAJEURE
(a) Neither party shall be responsible for any delay or failure in
performance of any part of this Agreement to the extent that such
delay or failure is caused by fire, flood, explosion, war, embargo,
government requirement, civil or military authority, acts of God,
strikes, slowdowns, picketing, boycotts, or any other circumstances
beyond its reasonable control and not involving any fault or
negligence of the party affected (Condition). If any such Condition
occurs, the party delayed or unable to perform ("delayed party") shall
promptly give written notice to the other party. If such Condition
remains at the end of thirty (30) days, the party affected by the
other's delay or inability to perform ("affected party") may elect to
(i) terminate such purchase order or part thereof, or (ii) suspend
such purchase order for the duration of the Condition, and if Customer
is the suspending party, buy elsewhere comparable material to that to
be sold under such purchase order, and apply to any commitment the
purchase price of such purchase, and require the delayed party to
resume performance of such purchase order once the Condition ceases,
with an option in the affected party to extend the period of this
Agreement up to the length of time the Condition endured.
(b) Unless written notice is otherwise given to the delayed party by the
affected party within sixty (60) days after the affected party is
notified of the Condition, (a)(ii) above shall be deemed selected.
20. ASSIGNMENT
(a) The rights and obligations of the parties shall neither be assigned
nor delegated without the prior written consent of the other party.
Such consent shall not be unreasonably withheld or delayed. However,
any party may assign or delegate its respective rights and
obligations, in whole or in part, to any parent, subsidiary or
affiliate of that party that was such a parent, subsidiary or
affiliate at the time of execution of this Agreement; provided that
the assigning party gives the other thirty (30) days' prior written
notice and the assignee agrees to be bound by the terms of this
Agreement.
12
(b) The limitation on assignment does not apply to an assignment confined
solely to monies due or to become due under this Agreement, provided
the party is given thirty (30) days' prior written notice of such
assignment. An assignment of monies shall be void to the extent that
it attempts to impose upon the party obligations to the assignee in
addition to the payment of such monies, or to preclude the party from
dealing solely and directly with the other in all matters, including
negotiation of amendments or settlement of amounts due, or it gives
rise to any additional rights or defenses available to the assignee
that were not available to the other party.
(c) If Customer sells, exchanges or otherwise disposes of all or a portion
of the assets of, or Customer's interest in, any business unit in
which Product are used, then Customer shall have the right, upon
written notice to Seller, to assign to such third party all applicable
licenses, warranties, maintenance schedules and rights granted under
this Agreement with respect to such Product; provided that the third
party agrees to be bound by all obligations of Customer to Seller that
pertain to the Product.
(d) Customer may assign to a leasing company Customer's right to purchase
Product under the terms and conditions of this Agreement for
Customer's internal use.
21. TAXES
Customer shall be liable for and shall reimburse Seller for payments of
Federal Manufacturers' and Retailers' Excise Taxes and State and local
sales and use taxes, as applicable, with respect to transactions under this
Agreement. Taxes payable by Customer shall be separately stated in
Seller's invoices and shall not be included in Seller's prices. Customer
shall not be liable for any tax for which a valid exemption certificate
acceptable to the applicable state or local taxing authorities is furnished
by Customer to Seller. Customer's purchase order may provide Seller
additional tax instruction as allowed by law including, but not limited to,
Customer's accrual and payment of taxes and/or special jurisdictional
exemptions.
22. PLANT AND WORK RULES AND RIGHT OF ACCESS
(a) The respective agents and employees of the parties, while on the
premises of the other, shall comply with all plant rules, regulations
and reasonable company standards for security, including (when
required by U.S. government regulations) submission of satisfactory
clearance from U.S. Department of Defense and other federal
authorities concerned.
(b) Each party shall permit reasonable access during normal working hours
to its facilities in connection with the work. Reasonable prior
notice shall be given when access is required.
(c) If Seller is given access, whether on-site or through remote
facilities, to any Customer 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
13
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 Customer requiring written authorization, to have such
access in connection with this Agreement, and shall strictly follow
all Customer's security rules and procedures for use of Customer'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 Customer's computer and electronic
data storage systems shall be deemed to be, and shall be treated as,
Customer Confidential Information under applicable provisions of this
Agreement. Seller agrees to cooperate with Customer in the
investigation of any apparent unauthorized access by Seller to
Customer's computer or electronic data storage systems or unauthorized
release of Confidential Information by Seller.
23. INDEMNIFICATION AND INSURANCE
(a) Seller shall indemnify, defend, and hold harmless Customer and its
affiliates, shareholders, directors, officers, employees, contractors,
and agents from all claims, suits, demands, damages, liabilities,
expenses (including reasonable fees and disbursements of counsel),
judgments, settlements and penalties of every kind ("Claims") based on
(i) personal injury, death, or property damage to the extent any of
the foregoing is proximately caused by either any defective Product
provided by Seller, its officers, employees, subcontractors or agents,
or by the negligent or willful acts or omissions of Seller, its
officers, employees, contractors or agents, or by strict liability in
tort or products liability of any other kind in connection with any
Product or Services provided by Seller, its officers, employees,
contractors or agents or the use, resale or distribution of any such
Product or Services by Customer. The foregoing indemnity shall not
apply in the case of Claims which solely arise from the negligence,
misconduct or other fault of Customer. It shall apply, however, if a
Claim is the result of the joint negligence, joint misconduct, or
joint fault of Seller and Customer, but in such a case the amount of
the Claim for which Customer is entitled to indemnification shall be
limited to that portion of such Claim attributable to the negligence,
misconduct or other fault of Seller. The obligations of this
provision are in addition to Seller obligation to provide insurance
and shall not be limited by any limitation on the amount or type of
damages, compensation or benefits payable by Seller under the Worker's
Compensation Acts, Longshoremen and Harborworker's Act, Disability
Benefits Act or any other employee benefit act.
(b) Customer shall promptly notify Seller in writing of any suits, claims
or demands covered by this indemnity. Promptly after receipt of such
notice, Seller shall assume the defense of such suits, claims, or
demands. If Customer in its sole discretion so elects, Customer may
also participate in the defense thereof by employing counsel at
Customer's expense, without waiving Seller's obligations to indemnify,
defend, and hold harmless. Seller shall not settle or compromise any
claims, suits, demands, or consent to the entry of any judgment
thereon without the prior written consent of Customer, not to be
unreasonably withheld, and without an unconditional release of all
liability by each claimant or plaintiff to Customer.
14
(c) Seller agrees to maintain during the term all insurance or bonds
required by law or this Agreement, including, but not limited to (i)
Workers Compensation and related insurance as prescribed by the law of
the state in which Seller's services are per-formed or Product are
delivered; (ii) employer's liability insurance with limits of at least
one million dollars ($1,000,000) for each occurrence, and (iii)
comprehensive general liability insurance including products
liability, and, if the use of motor vehicles is required,
comprehensive motor vehicle liability insurance, each with limits of
at least two million dollars ($2,000,000) for combined single limit
for bodily injury, including death, and/or property damage. Seller
shall cause Customer to be included as an additional insured under
said policies (as "GTE Corporation and its affiliates and
subsidiaries") and Customer's coverage under such policies shall be
primary. Seller shall waive its rights of subrogation against
Customer for Workers' Compensation claims. Seller shall, prior to
rendering such services, furnish to the address specified in Section
10(c), certificates or evidence of the foregoing insurance indicating
the amount and nature of such coverage, the expiration date of each
policy, and stating that no material change or cancellation of any
such policy shall be effective unless thirty (30) days' prior written
notice is given to Customer. Seller shall have the option, when
permitted by law, to self-insure any or all of the foregoing risks.
(d) Should Seller elect to self-insure, in lieu of Certificates of
Insurance as stipulated in Section 23(c), Seller shall provide to
Customer: (i) the self-insurance registration identification number
assigned by each state in which Seller desires to provide services to
Customer or manufactures Product; (ii) a letter of certification from
Seller's insurance carrier or self insurance administrator that Seller
is self-insured for the coverage's and amounts as stipulated in 23(c),
including that Customer is an additional insured and shall be
indemnified and saved harmless from all claims, suits, and liabilities
as set forth within this Agreement; and (iii) a notification of the
states in which Seller is provided coverage under its self-insurance.
24. RELATIONSHIP OF PARTIES
In providing any Services under this Agreement, Seller is acting solely as
an independent contractor and not as an agent of any other party. Persons
furnished by the respective par-ties shall be solely the employees or
agents of such parties, respectively, and shall be under the sole and
exclusive direction and control of such parties. They shall not be
considered employees of the other party for any purpose. Each party shall
be responsible for compliance with all laws, rules and regulations
involving its respective employees or agents, including (but not limited
to) employment of labor, hours of labor, health and safety, working
conditions and payment of wages. Each party shall also be responsible,
respectively, for payment of taxes, including federal, state, and municipal
taxes, chargeable or assessed with respect to its employees or agents, such
as social security, unemployment, worker's compensation, disability
insurance and federal and state income tax withholding. Neither party
undertakes by this Agreement or otherwise to perform or discharge any
liability or obligation of the other party, whether regulatory or
contractual, or to assume any responsibility whatsoever for the conduct of
the business or operations of the other party. Nothing contained in this
Agreement is intended to give rise to a partnership or joint venture
between the parties or to impose upon the parties any of the duties or
responsibilities of partners or joint ventures.
15
25. TERMINATION
(a) Customer may terminate this Agreement without cause, effective after
thirty (30) days written notice to Seller. Termination shall not
affect any purchase order placed, any subordinate agreement executed
prior to the date of termination, or any fully paid up license granted
to Customer. Upon termination of this Agreement without cause,
Customer shall not be liable to Seller, either for compensation or for
damages of any kind or character whatsoever, whether on account of the
loss by Seller of present or prospective profits on sales or
anticipated sales, or expenditures, investments or commitments made in
connection with the establishment, development or maintenance of
Seller's business, or on account of any other cause or thing
whatsoever. The termination shall not prejudice the rights or
liabilities of the parties with respect to Product sold, or any
indebtedness then owing by either party to the other.
(b) Either party may terminate this Agreement, effective immediately,
without liability for said termination, upon written notice to the
other party, if any of the following events occur:
(1) The other files a voluntary petition in bankruptcy;
(2) The other is adjudged bankrupt;
(3) A court assumes jurisdiction of the assets of the other
under a federal reorganization act;
(4) A trustee or receiver is appointed by a court for all or a
substantial portion of the assets of the other;
(5) The other becomes insolvent or suspends its business;
(6) The other makes an assignment of its assets for the benefit
of its creditors, except as required in the ordinary course
of business; or
(7) The identity of the other's business is materially changed
by sale of its business, transfer of control of its
outstanding stock, merger or otherwise.
(c) Either party may terminate this Agreement for a material breach or
default of any of the terms, conditions or covenants of this Agreement
by the other, provided that such termination may be made only
following the expiration of a thirty (30) day period during which the
other party has failed to cure such breach after having been given
written notice of such breach. This subsection shall not apply to
Customer's cancellations or Seller's revocations under Section 8,
PURCHASE ORDERS; CANCELLATION OF PURCHASE ORDERS; REVOCATION OF
ACKNOWLEDGEMENT.
26. DISPUTE RESOLUTION
(a) The parties desire to resolve certain disputes, controversies and
claims arising out of this Agreement without litigation. Accordingly,
except in the case of (i) a dispute,
16
controversy or claim relating to a breach or alleged breach on the
part of either party of the provisions of Section 16, CONFIDENTIAL
INFORMATION, (ii) a suit, action or proceeding to compel Seller to
comply with its obligations to indemnify Customer pursuant to this
Agreement or (iii) a suit, action or proceeding to compel either party
to comply with the dispute resolution procedures set forth in this
Section 26, the parties agree to use the following alternative
procedure as their sole remedy with respect to any dispute,
controversy or claim arising out of or relating to this Agreement or
its breach. The term "Arbitrable Dispute" means any dispute,
controversy or claim to be resolved in accordance with the dispute
resolution procedure specified in this Section 26.
(b) At the written request of a party, each party shall appoint a
knowledgeable, responsible representative to meet and negotiate in
good faith to resolve any Arbitrable Dispute arising under this
Agreement. The parties intend that these negotiations be conducted by
nonlawyer, business representatives. The discussions shall be left to
the discretion of the representatives. Upon agreement, the
representatives may utilize other alternative dispute resolution
procedures such as mediation to assist in the negotiations.
Discussions and correspondence among the representatives for purposes
of these negotiations shall be treated as confidential information
developed for purposes of settlement, shall be exempt from discovery
and production, and shall not be admissible in the arbitration
described below or in any lawsuit without the concurrence of all
parties. Documents identified in or provided with such
communications, which are not prepared for purposes of the
negotiations, are not so exempted and may, if otherwise admissible, be
admitted in evidence in the arbitration or lawsuit.
(c) If the negotiations do not resolve the Arbitrable Dispute within sixty
(60) days of the initial written request, the Arbitrable Dispute shall
be submitted to binding arbitration by a single arbitrator pursuant to
the Commercial Arbitration Rules of the American Arbitration
Association. A party may demand such arbitration in accordance with
the procedures set out in those rules. Discovery shall be controlled
by the arbitrator and shall be permitted to the extent set out in this
Section. Each party may submit in writing to a party, and that party
shall so respond, to a Maximum of any combination of thirty-five (35)
(none of which may have subparts) of the following: interrogatories,
demands to produce documents and requests for admission. Each party
is also entitled to take the oral deposition of one (1) individual of
another party. Additional discovery may be permitted upon mutual
agreement of the parties. The arbitration hearing shall be commenced
within sixty (60) days of the demand for arbitration and the
arbitration shall be held in Dallas, Texas. The arbitrator shall
control the scheduling so as to process the matter expeditiously. The
parties may submit written briefs. The arbitrator shall rule on the
Arbitrable Dispute by issuing a written opinion within thirty (30)
days after the close of hearings. The arbitrator shall have no power
or authority to make awards or issue orders of any kind except as
permitted by this Agreement and substantive law, and in no event shall
the arbitrator have the authority to make any award that provides for
punitive or exemplary damages. The arbitrator's decision shall follow
the plain meaning of this Agreement and the relevant documents. The
times specified in this Section may be extended upon mutual agreement
of the parties or by the arbitrator upon a showing of good cause.
17
Judgment upon the award rendered by the arbitrator may be entered in
any court having jurisdiction.
(d) Each party shall bear its own cost of these procedures. A party
seeking discovery shall reimburse the responding party the cost of
production of documents (to include search time and reproduction time
costs). The parties shall equally share the fees of the arbitration
and the arbitrator.
27. NOTICES
(a) Any written notice either party may give the other concerning the
subject matter of this Agreement shall be in writing and given or made
by means of telegram, facsimile transmission, certified or registered
mail, express mail or other overnight delivery service, or hand
delivery, proper postage or other charges paid and addressed or
directed to the respective parties as follows:
To Seller: At Seller's address shown on the first page of this
Agreement.
To Customer: GTE Supply
700 Hidden Ridge
Irving, Texas 75038
Attention: Manager-Contract Management
(HQW03N75)
and
GTE Supply
5615 High Point Drive
PO Box 169001
Irving, Texas 75016-9001
Attention: Manager - Purchasing
(HQA09122)
and to the Affiliate that placed the Order if different than GTE
Supply.
(b) Written notices for change in ownership, change in name of firm, or
change in mailing address must be given by Seller by mailing to
Customer within thirty (30) days of such change. Notices for change
in ownership must include the names of all new owners or officers,
registered agent for service of process and state of incorporation or
organization.
28. PRODUCT SAFETY NOTIFICATIONS/TOXIC SUBSTANCES
(a) Seller will immediately notify Customer by telephone (followed by
written confirmation within twenty-four hours) if Product purchased or
materials used fail to comply with applicable safety rules or
standards of the United States Consumer Product Safety Commission or
the Environmental Protection Agency or contain a defect that presents
a substantial risk to the public health or injury to the public or the
environment, whether by itself or when used by Customer for its
intended purpose.
18
(b) Seller represents that each Product furnished by Seller is safe for
normal use, is nontoxic, presents no abnormal hazards to persons or
the environment, and may be disposed of as normal refuse.
29. PRODUCT CHANGE/DISCONTINUANCE
(a) Seller is required to give Customer advance written notice within one
hundred twenty (120) days, or as soon as Seller has official release,
of any technological or specification change, software/firmware
revision, Product deletion or manufacturer discontinuance that would
significantly impact Product operation, interchangeability with
existing Product, appearance, warranty, life cycle or GTE
engineering/quality approvals of any Product. Seller shall, at the
time of notification, provide Customer with (i) a Product change
number; (ii) a description of such change; (iii) the reason for
change; (iv) a description of the impact of such change upon
reliability, Product specifications, or form, fit or function; (v)
proposed price impact (if any); and (vi) proposed effective date for
such change and recommended implementation schedule.
(b) If the parties fail to reach agreement on any such change in Product
to be made by Seller, then, in addition to all other rights and
remedies at law or in equity or otherwise, Customer shall, at no cost
or liability, have the right to terminate all pending purchase orders
for Product affected by such change.
(c) Seller may discontinue the availability of Product at any time, but
shall accept Orders for discontinued Product for a period of at least
ninety (90) days after the effective date of discontinuation. Orders
for discontinued Product shall only be accepted if delivery is
requested within one hundred and eighty (180) days of the effective
date of discontinuation.
(d) Seller agrees that if the required one hundred twenty (120) days'
prior written notice is not provided, Seller shall accept, at
Customer's option, a Product exchange or return for all Product in
Customer's inventory on the effective date of the change. Any Product
returned must be unused, undamaged and in the original carton and may
be returned, at Customer's option, for one hundred percent (100%)
credit of the price paid or an equal dollar value exchange for any
other Product offered under this Agreement.
30. INVENTORY RETURN
At no cost to Customer, Customer may return for refund or exchange, FOB
Customer's warehouse, Product of its selection with a total dollar value of
all returned or exchanged Product not to exceed [*] of the total purchase
price for all Product purchased by Customer from Seller for the previous
twelve (12) months excluding applicable taxes and freight charges. If
Product shipped in exchange is less in dollar value than the returned
Product, Seller shall issue Customer a credit for the difference in value
between Product returned and the exchanged Product. Dollar value of
returned or exchanged Product and overall purchases shall be calculated on
the basis of actual purchase prices charged by Seller to Customer. Customer
agrees to ship the returned Product and accept delivery of the exchanged
Product within thirty (30) days of the Seller's acknowledgement of
19
Customer's intent to exchange Product hereunder. Seller agrees to issue
credit for returned Product within thirty (30) days of receipt equal to the
actual purchase price of the returned Product. Product returned must be in
the original carton and condition.
31. GOVERNMENT CONTRACT PROVISIONS
If an Order contains a notation that Product or Service is intended for use
under a government contract, it shall be subject to the then current
government contract provisions printed on or attached to such Order.
32. CENTURY COMPLIANCE
Seller agrees to comply with the provisions set forth in Exhibit I, CENTURY
COMPLIANCE.
33. STANDARDIZATION POLICIES, PROCEDURES AND TERMS
Seller agrees to comply with Customer's standardization policies,
procedures and terms set forth in Exhibit J.
34. NONWAIVER
Either party's failure to enforce any of the provisions of this Agreement
or any purchase order, or to exercise any option, shall not be construed as
a waiver of such provisions, rights, or options, or affect the validity of
this Agreement or any purchase order.
35. SEVERABILITY
If any of the provisions of this Agreement shall be invalid or
unenforceable, then such invalidity or unenforceability shall not
invalidate or render unenforceable the entire Agreement. The entire
Agreement shall be construed as if not containing the particular invalid or
unenforceable provision or provisions, and the rights and obligations of
Seller and Customer shall be construed and enforced accordingly.
36. SECTION HEADINGS
The headings of the sections are inserted for convenience only and are not
intended to affect the meaning or interpretation of this Agreement.
37. SURVIVAL OF OBLIGATIONS
The respective obligations of the parties under this Agreement that by
their nature would continue beyond the termination, cancellation or
expiration, shall survive any termination, cancellation or expiration,
including, but not limited to, obligations to indemnify, insure and
maintain confidentiality, and continued availability of Product support.
38. CHOICE OF LAW AND JURISDICTION
The construction, interpretation and performance of this Agreement shall be
governed by and construed in accordance with the laws of the state of Texas
without regard to any conflicts of law principles that would require the
application of the laws of any other
20
jurisdiction and subject to the exclusive jurisdiction of its federal or
state courts in Dallas County, Texas. The application of the U.N.
Convention on Contracts for the International Sale of Goods is specifically
excluded from this Agreement.
39. ENTIRE AGREEMENT
This Agreement together with its exhibits constitutes the entire agreement
between the parties and cancels all contemporaneous or prior agreements,
whether written or oral, with respect to the subject matter of this
Agreement. Except as provided in Sections 11, PRECEDENCE OF DOCUMENTS, and
Section 8, PURCHASE ORDERS; CANCELLATION OF PURCHASE ORDERS; REVOCATION OF
ACKNOWLEDGEMENT, no modifications shall be made to this Agreement unless in
writing and signed by authorized representatives of the parties.
Each party represents that it has executed this Agreement through its authorized
representative:
GODIGITAL TELECOMMUNICATIONS GTE COMMUNICATION SYSTEMS
INC. CORPORATION
By: /s/ Frank I. Akers By: /s/ Rich E. Potter
Name: Frank I. Akers Name: Rich Potter
Title: President & CEO Title: Group Manager - Contract Management
Date: 16 April, 1998 Date: 4/23/98
21
EXHIBIT A
GTE AFFILIATED ENTITIES
EXHIBIT A
GTE AFFILIATED ENTITIES
[*]
A-1
EXHIBIT B
PRODUCT AND SERVICE PRICES
GoDigital Telecommunications Inc.
Exhibit B - GoDigital System Domestic Price List
Effective Date 11/23/97 (Revised to add new parts)
Section A: Product Prices
-----------------------------------------------------
Unit List Suggested Contract Price per Volume (1)
- -------------------------------------------------------------------------------------------------
Note Item P/N Price [*] [*] [*] [*]
- -------------------------------------------------------------------------------------------------
Universal Configuration
- -------------------------------------------------------------------------------------------------
23" GDSL Shelf 990001 [*] [*] [*] [*] [*]
- -------------------------------------------------------------------------------------------------
19" GDSL Shelf 990021 [*] [*] [*] [*] [*]
- -------------------------------------------------------------------------------------------------
new 19" GDSL-8 Shelf 990071 [*] [*] [*] [*] [*]
- -------------------------------------------------------------------------------------------------
Alarm Card 990002 [*] [*] [*] [*] [*]
- -------------------------------------------------------------------------------------------------
new Alarm and Test Card 990072 [*] [*] [*] [*] [*]
- -------------------------------------------------------------------------------------------------
GDSL2 CTU 990003 [*] [*] [*] [*] [*]
- -------------------------------------------------------------------------------------------------
GDSL+ CTU 990053 [*] [*] [*] [*] [*]
- -------------------------------------------------------------------------------------------------
new GDSL+ ER CTU 990068 [*] [*] [*] [*] [*]
- -------------------------------------------------------------------------------------------------
new GDSL+ EC CTU 990053 [*] [*] [*] [*] [*]
- -------------------------------------------------------------------------------------------------
GDSL2+ CTU 990004 [*] [*] [*] [*] [*]
- -------------------------------------------------------------------------------------------------
new GDSL-8 CTU 990073 [*] [*] [*] [*] [*]
- -------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------
Integrated Configurations
- -------------------------------------------------------------------------------------------------
T1 LIU 990007 [*] [*] [*] [*] [*]
- -------------------------------------------------------------------------------------------------
GDSL-6 ICU Card 990008 [*] [*] [*] [*] [*]
- -------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------
Remote Terminals and Repairs
- -------------------------------------------------------------------------------------------------
GDSL2 RTU, Outdoor 990005 [*] [*] [*] [*] [*]
- -------------------------------------------------------------------------------------------------
GDSL2 RTU, Door Unit 990009 [*] [*] [*] [*] [*]
- -------------------------------------------------------------------------------------------------
GDSL2 RTU, Indoor 990013 [*] [*] [*] [*] [*]
- -------------------------------------------------------------------------------------------------
GDSL+ RTU, Outdoor 990054 [*] [*] [*] [*] [*]
- -------------------------------------------------------------------------------------------------
GDSL+ RTU, Door Unit 990055 [*] [*] [*] [*] [*]
- -------------------------------------------------------------------------------------------------
GDSL+ RTU Indoor 990056 [*] [*] [*] [*] [*]
- -------------------------------------------------------------------------------------------------
new GDSL+ ER RTU Outdoor 990069 [*] [*] [*] [*] [*]
- -------------------------------------------------------------------------------------------------
new GDSL+ EC RTU Outdoor 990054 [*] [*] [*] [*] [*]
- -------------------------------------------------------------------------------------------------
GDSL2+ RTU, Outdoor 990006 [*] [*] [*] [*] [*]
- -------------------------------------------------------------------------------------------------
GDSL2+ RTU, Door Unit 990010 [*] [*] [*] [*] [*]
- -------------------------------------------------------------------------------------------------
GDSL2+RTU, Indoor 990014 [*] [*] [*] [*] [*]
- -------------------------------------------------------------------------------------------------
GDSL6 RTU, Outdoor 990020 [*] [*] [*] [*] [*]
- -------------------------------------------------------------------------------------------------
GDSL6 RTU, Indoor 990016 [*] [*] [*] [*] [*]
- -------------------------------------------------------------------------------------------------
new GDSL-6 Doubler, Plugin 990062 [*] [*] [*] [*] [*]
- -------------------------------------------------------------------------------------------------
new GDSL-6 Doubler, Encap 990063 [*] [*] [*] [*] [*]
- -------------------------------------------------------------------------------------------------
new GDSL-8 RTU, w/stub 990075 [*] [*] [*] [*] [*]
- -------------------------------------------------------------------------------------------------
new GDSL-8 RTU, w/Terminal 990076 [*] [*] [*] [*] [*]
- -------------------------------------------------------------------------------------------------
new GDSL-8 Rptr, STR 990064 [*] [*] [*] [*] [*]
- -------------------------------------------------------------------------------------------------
GDSL-8 Rptr, STR Encap 990065 [*] [*] [*] [*] [*]
- -------------------------------------------------------------------------------------------------
new GDSL-8 Rptr, ADR2, stub 990067 [*] [*] [*] [*] [*]
- -------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------
GDSL-384 RTU, Outdoor 990019 [*] [*] [*] [*] [*]
- -------------------------------------------------------------------------------------------------
GDSL-384 RTU, Indoor 990015 [*] [*] [*] [*] [*]
- -------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------
GDSL-24 RT Housing 990060 [*] [*] [*] [*] [*]
- -------------------------------------------------------------------------------------------------
(1) Volume is a single order or a supply contract with scheduled releases.
28
EXHIBIT C
PURCHASE FOR INTERNAL USE
1. SCOPE
If Customer issues an Order to Seller for Product or related Service for
its internal use, including use whereby Customer provides services to third
parties in the normal course of its business, then the terms of this
Exhibit apply.
2. LICENSE
The terms of this license, other than subsection (a) apply to all Software,
including Operating System Software.
(a) Grant of (other than Operating System) Software License - For Software
-------------------------------------------------------
other than Operating System Software, Seller grants to Customer, and
to its employees, agents, and contractors, a nonexclusive,
nontransferable (except as set forth in this Agreement), perpetual,
worldwide, fully-paid up license to Use the Software and all updates
and/or enhancements, including all media on which it may be recorded
or stored. Customer shall have the right to modify the Software and
shall have the right, title and interest in and to any such
modifications. Customer shall have all right to use any program or
Software derived from the Software and shall have the right to use the
Software in connection with such derived program or Software.
(b) Customer shall have the right, at no additional charge, to use the
Software by means of remote electronic access at locations other than
the locations at which the Software is stored.
(c) The term of the licenses granted shall be effective from the date of
delivery of the Software or as otherwise mutually agreed by the
parties and shall remain in effect until the Use of the Software, as
it may have been updated or enhanced by Seller from time to time, is
permanently discontinued by Customer, unless terminated as provided
herein or under the terms of an Order.
(d) If an Order specifies that Customer's Use of the Software is limited
to a designated site or a designated processor, this provision shall
apply. For purposes of this provision, the term "site" shall include
the term "processor," as applicable to the Order. Customer may
redesignate the site at which the Software will be used, and shall
notify Seller of the redesignated site and the effective date of the
redesignation. Customer shall have the right to concurrently Use
Software at a second site without payment of an additional amount to
Seller for a period not to exceed three (3) months for the purpose of
redesignating the assigned using site. For a license granted under
this Agreement that limits Use to a designated site, such designated
site may be transferred: (i) to a backup site if the processor at the
designated site is inoperative due to malfunction, to performance of
preventative maintenance, to engineering changes or to changes in
features or model, until such processor is restored to operative
status and processing of the data already entered in the processor at
the backup site has been completed or (ii) to one other site for
assembly or compilation of the Software if the specifications of the
processor at the
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designated site are such that the Software cannot be assembled or
compiled on such processor.
(e) The type of license (standalone, concurrent, site, enterprise, etc.)
subject to the grant hereunder shall be specified in an Order or
schedule to this Agreement, including the applicable fee.
3. WARRANTY - PRODUCT HARDWARE
(a) Seller warrants to Customer that upon delivery of the Product to
Customer all right, title and interest in Product Hardware will pass
to Customer free of all liens, imperfections in title, claims,
charges, restrictions, or other encumbrances. Seller warrants the
Product Hardware except operating systems Software furnished shall be
new, merchantable, free from defects in material and workmanship, fit
for the ordinary purpose for which the Product Hardware is used, shall
not infringe on any U.S. patent, and for the period of two (2) years
from the date of shipment by Seller to Customer or to Customer's
customer, shall conform to Seller's advertised and published
specifications in effect at the time the warranty began. Should
Seller's Product not conform to the foregoing warranties, Seller shall
repair or replace the defective or nonconforming Product Hardware and
reimburse Customer for all direct expenses incurred by Customer
because the Product is defective or nonconforming. All warranties
shall survive inspection, acceptance and payment.
(b) During the warranty period, defective Product shall be either repaired
on-site by Seller or returned to Seller for repair or replacement at
no charge or cost to Customer Unless otherwise agreed by Seller and
Customer, for Product that are returned to Seller for repair, Seller
shall complete repairs and return repaired Product, or ship
replacement Product, within twenty (20) days of receipt of defective
Product at Seller's designated repair location. Customer shall bear
the risk of loss or damage until Product is placed in the possession
of the carrier. Customer shall bear the cost of transportation
charges for shipment to Seller of Product to be repaired or replaced.
For return shipments from Seller to Customer, Seller shall bear the
risk of loss or damage during transit and shall prepay and bear the
cost of transportation charges for shipment of Product that has been
repaired or replaced. If Product returned is not defective, Seller
shall promptly advise Customer in writing of this determination; in
such cases, Seller shall return Product to Customer at Customer's
expense and risk in its "as received" condition. If Product returned
is not in warranty, Seller shall promptly advise Customer in writing
of this determination; in such cases, Seller shall repair Product if
so instructed by Customer in writing and charge Customer for labor,
parts and shipping in accordance with Section 6, REPAIRS NOT COVERED
UNDER WARRANTY, of this Exhibit.
(c) During the warranty period, if Customer's technical personnel attempt
to determine whether or not Seller's Product is the cause of service
interruption and cannot identify and resolve the problem causing the
interruption after communicating with Seller's technical personnel via
telephone or other suitable means, and the service interruption still
exists, then Customer may request, and Seller shall begin on-site
repairs as soon as possible, but in no event later than one (1)
business day after receiving Customer's request. Such on-site repairs
by Seller shall be at no charge
C-2
to Customer. Seller shall have the option to replace Product rather
than to perform on-site repair.
(d) During the warranty period, if the service interruption still exists
after compliance with (c) above, and the service interruption is
caused by either Seller's defective Product and/or Seller's Product
that does not conform to Seller's written specifications, and Seller
has been given a reasonable time frame, as determined by Customer, to
correct the service interruption, Customer may return Product to
Seller and receive a refund or credit, at Customer's option, for the
total purchase price.
(e) Any replacement, repair, modification, installation or other service
performed by Seller shall be warranted, commencing with the date upon
which repaired Product is returned to Customer, for the remainder of
the unexpired period of the warranty or ninety (90) days whichever is
greater.
(f) The warranties do not extend to Product to the extent that such
Product has been subjected to misuse, neglect or abuse not caused by
Seller or been used in violation of the approved written instructions
furnished to Customer prior to the delivery of the Product, and such
action is the cause of the damage or malfunction.
4. WARRANTY - SOFTWARE
(a) Seller warrants that Customer shall have quiet enjoyment of the
Software and that the Software and Customer's Use, shall be free from
claims of infringement, misuse or misappropriation of any intellectual
property right during the term of Customer's license to Use the
Software. As to Software which Seller does not have title, Seller
warrants that it has rights in the Software sufficient to permit the
license of the Software to Customer and that Seller has full right,
power and authority to license the Software and other rights granted
hereunder to Customer.
(b) Seller also warrants that the media containing the Software will be
free from defects in material and workmanship and that all related
services provided by Seller shall be rendered by qualified personnel
who will perform the tasks assigned consistent with good professional
practice and the state of the art involved.
(c) Seller also warrants that there are no copy protection or similar
mechanisms within the Software which will, either now or in the
future, interfere with the grants made in this Agreement.
(d) Where Software is intended to be used in transaction processing or in
the public switched network, Seller represents that nothing in the
Software precludes Customer from integrating a network management
solution (including transaction processing and network monitoring)
with the Software.
(e) For the period of two (2) years, beginning with the effective date of
license of the Software, Seller warrants that the Software will
perform in accordance with the Specifications for the Software,
provided the Software is operated in accordance with the terms of this
Agreement, including any Order. Seller assumes no product liability
for the Software if it is installed on a platform not supported by
Seller. If within ninety (90) days subsequent to the expiration of the
warranty period Seller
C-3
has not repaired the Software to perform in accordance with the
Specifications for any exception communicated in writing by Customer
to Seller during the warranty period, Customer may terminate this
Agreement or Order and Seller shall refund to Customer the amount paid
to it for the nonconforming Software.
(f) After the first year, Seller warrants that if any portion of the
Software is or becomes unusable, totally or in any respect, Seller
will correct errors, defects and nonconformities and restore the
Software to error-free conforming condition without additional charge
to Customer.
5. CONTINUING AVAILABILITY OF SERVICE AND PARTS
(a) Seller shall, if requested by Customer, provide Customer with
maintenance service, repair service and parts for Product Hardware and
Software, for a period of five (5) years after Product Hardware and
Software have been discontinued by the manufacturer. If Seller is
unable to supply such services and/or parts or Seller is unable to
obtain an alternative source to provide such services and/or parts for
Customer, then such inability shall be considered noncompliance with
this clause and Seller shall, without obligation or charge to
Customer, provide Customer with drawings or other documents required
to either manufacture or buy such parts and the technical information
or any other rights necessary for Customer to manufacture or obtain
such parts from other sources, together with a nonexclusive license to
manufacture or purchase such parts for the purpose of supporting
Customer's customer base.
(b) The technical information shall include, by example and not by way of
limitation:
(1) Manufacturing drawings and specifications of materials and parts
comprising the replacement and repair parts and components;
(2) Manufacturing drawings and specifications covering special
tooling and operation;
(3) A detailed list of all commercially available parts and
components purchased by Seller on the open market, disclosing the
part number, name and location of the supplier and price lists
for the purchase; and
(4) One complete copy of the source code used in the preparation of
any software licensed or otherwise acquired by Customer from
Seller, provided however, that such source code shall remain the
property of Seller and shall be separately licensed to Customer
for Customer's possession and use exclusively for maintenance of
Customer's and Customer's customers' Product.
(c) Notwithstanding the above, Seller shall not be under any obligation to
provide source codes for any licensed program for which Seller either
(i) does not own the source code or (ii) does not have rights to
disclose such source code. In either event, Seller shall disclose its
licensor or owner of said source code.
C-4
(d) Certain Product application software is subject to a licensing
agreement and is sublicensed to Customer or end users. In the event
of the inability to provide updates or continuing support of the
application software at a reasonable cost, Seller shall assist
Customer in locating an alternative source.
6. REPAIRS NOT COVERED UNDER WARRANTY
(a) Repair charges for Product Hardware out of warranty shall be as
specified in Attachment A and shall not be changed by Seller without
written notice to Customer thirty (30) days in advance of such change,
which must be mutually agreed upon by both parties.
(b) Defective Product Hardware out of warranty may be returned to Seller
for repair or replacement. Unless otherwise agreed by Seller and
Customer, Seller shall complete repairs and ship repaired Product
Hardware, or at Customer's option, replacement Product, within twenty
(20) days of receipt of defective Product Hardware at Seller's
designated repair location. Customer shall bear the risk of loss or
damage of Product and shall prepay and bear the cost of transportation
charges for shipment to Seller of Product to be repaired or replaced.
For return shipments from Seller to Customer, Seller shall bear the
risk of loss or damage during transit and shall prepay and bear the
cost of transportation charges for shipment of Product that has been
repaired or replaced. If Seller determines Product returned is not
defective, Seller shall promptly advise Customer in writing of this
determination; in such cases, Seller shall return Product to Customer
in its "as received" condition. If Seller determines that a returned
Product is irreparable, Seller shall promptly notify Customer.
(c) Any replacement, repair, modification, installation or other service
performed by Seller shall be warranted, commencing with the date upon
which repaired Product is returned to Customer, for a period of ninety
(90) days.
7. PRODUCT REPAIR RETURN
(a) Customer will contact Seller to receive a Return Material
Authorization (RMA) number, and may provide to Seller an Equipment
Repair Order (ERO) number and/or a purchase order pack list number
when returning Product Hardware to Seller for repair.
(b) Customer shall furnish the following information with Product returned
to Seller for repairs:
(1) Customer's name and complete address;
(2) Name(s) and telephone number(s) of Customer's employee(s) to
contact if there are questions about Product to be repaired;
(3) "Ship to" address for return of repaired Product, if different
from (1);
(4) A complete list of Product returned;
C-5
(5) The nature of the defect or failure, if known; and
(6) Product warranty status.
(7) All Product shipped to Seller for repair must be returned in the
original shipping packaging or the equivalent in order to avoid
damage during shipping.
(c) All Product shipped to Seller for repair shall have repair tags
attached that are supplied by Seller free of charge or by Customer,
which shall contain the above stated information.
(d) Product repaired by Seller shall have the repair completion date
stenciled or otherwise identified in a permanent manner in a readily
visible location on Product and the repaired Product shall be returned
with a tag or other papers describing the repairs that have been made.
If Seller maintains statistical records for repaired Product, the
information shall be made available to Customer upon request.
8. EMERGENCY REPLACEMENT SERVICE
(a) If a failure that causes a customer service impairment to Customer,
which failure is caused by Product or Software furnished under this
Agreement, Seller agrees to ship replacement Product or Software by
the most expedient means available, within twenty-four (24) hours of
written notification by Customer. The charge for this expedite
service shall be as follows:
(1) If the defective Product or Software is in warranty or is covered
under a maintenance agreement, Seller shall ship new replacement
Product at no charge. If the defective Product or Software is not
returned to Seller within sixty (60) days from the date of
shipment of the new replacement Product or Software, Seller may
invoice Customer for such new replacement Product or Software at
Seller's then current price listed in Exhibit B.
(2) If the defective Product or Software is out of warranty and is
not covered under a maintenance agreement, Seller shall ship new
replacement Product or Software and may invoice Customer at
Seller's current price listed in Exhibit B.
(b) In order to schedule shipment of replacement Product, Customer may
telephone Seller. This service shall be available from Seller seven
(7) days a week, twenty-four (24) hours a day. As specified in
Attachment B, Customer may contact Seller at the telephone numbers
listed during normal working hours and after normal working hours.
9. TECHNICAL SUPPORT FOR PRODUCT
(a) Seller shall make available to Customer telephone technical support
twenty-four (24) hours a day, seven (7) days a week. There shall be
no charge for such technical support during the warranty period or if
Product is covered by Seller's maintenance plan. Technical support
and services shall include, but not be limited to, the provision of
the following services:
C-6
(1) Distribution of a master Seller's escalation matrix and ongoing
updates. This matrix must include names, titles and telephone
numbers of individuals within Seller's technical support
organization for problem response escalation by Customer.
(2) Distribution, to personnel designated by Customer, of a monthly
activity summary report listing the number of times Customer's
personnel contacted Seller's technical support throughout the
month, with the date and time of contact, disposition of the call
and the source of any identified problems.
(3) Assistance in the diagnosis and resolution of hardware and
software problems and in the analysis of maintenance indices.
Also assistance in expediting priority replacement parts or
systems required on an emergency basis.
(4) Assistance in the support of the initial implementation of newly
developed Product and during installation of significant Product
updates and/or changes.
(5) Support in the preparation and analysis of failure and
discrepancy reports, as required.
(6) Cooperation in providing guidelines and documentation to ensure
the necessary tracking and resolution of engineering,
installation and service complaints.
(b) When Customer contacts Seller for technical support, Seller must
provide caller with a control number if resolution cannot be completed
over the telephone. Seller shall provide the caller a verbal status,
disposition or resolution of the reported problem within two (2) hours
of notification. At the discretion of Customer, the problem may be
escalated in accordance with Seller's escalation matrix.
(c) Seller's technical support shall use best efforts to meet the
following emergency resolution intervals:
(1) Total Outage - 2 Hours
Product has stopped
performing the function for
which it was purchased
(providing no service).
(2) Safety Hazard - 2 Hours
Product has a defect
that may pose a safety hazard
to employees or customers.
C-7
(3) Partial Outage - 4 Hours
Product is providing
limited service for which it
was purchased.
(4) Loss of Redundancy - 24 Hours
Any redundant part of the
Product is operating
in a simplex mode.
(5) Customer-Affecting Trouble - 72 Hours
Product is providing
the service for which it was
purchased; however, at times
that service deteriorates.
10. ON-SITE ASSISTANCE
(a) Prior to any on-site assistance, the solution to specific problems
shall be discussed and resolved, whenever possible, by telephone, as
outlined in Section 10, TECHNICAL SUPPORT FOR PRODUCT, of this
Exhibit. If requested by Customer, Seller agrees to furnish on-site
assistance in a time frame as mutually agreed by the parties and in
accordance with Seller's prevailing rates, a current copy of which is
included as Attachment C. If Product deficiency is the fault of
Seller, than on-site assistance shall be at no charge.
(b) In cases of out-of service emergencies, Customer-affecting failures
and/or when other critical factors apply, Seller agrees to provide on-
site assistance within four (4) hours of Customer request, within the
limits of available transportation.
(c) When requested, Seller shall provide a qualified individual familiar
with Product, at no expense, for a period of one (1) day at the first
installation in each Customer site of newly developed Product or
Product enhancement, updates or changes. Total period shall not to
exceed thirty (30) days per year.
(d) Seller shall provide, at no additional charge: (i) such assistance and
advice, as may be reasonably requested by Customer necessary to assist
in the use of the Product and (ii) such training as it normally
provides without charge to users of the Product.
11. PRODUCT DOCUMENTATION
(a) During the term of this Agreement, Seller shall support Product by
maintaining and providing, at no charge, documentation, preferably in
a machine readable format, on the following:
(1) Administration;
(2) Features and technical specifications;
C-8
(3) Installation and testing;
(4) Operations, provisioning and translations;
(5) Test and acceptance;
(6) Maintenance and diagnostics;
(7) Other mutually agreed to documentation deemed necessary by
Customer to support the maintenance and operation of Product.
(b) Seller shall maintain a record of Product documentation that has been
distributed among Customer's personnel and provide updates, at no
charge, in accordance with that record.
(c) Seller hereby grants to Customer a fully paid license, at no
additional charge, for the term of this Agreement, to copy or
otherwise reproduce all or portions of Seller's Product documentation.
Such reproduction shall be for Customer's own use and Customer shall
protect the confidentiality of such information.
12. SOURCE CODE
In the event that Seller becomes insolvent, ceases to carry on business on
a regular basis or fails to perform its obligations hereunder, and during a
period of thirty (30) days thereafter Seller (or some other financially and
technically responsible successor in interest acceptable to Customer which
assumes in writing Seller's obligations hereunder) does not continue to
perform such obligations, then (i) Seller or others acting on behalf of
Seller, shall furnish to Customer all source programs, technical
documentation and other information (SOFTWARE Source Materials) required
for maintenance, modification or correction of the most current version of
the SOFTWARE provided to Customer and (ii) Seller will be deemed to have
granted to Customer a perpetual right to use the SOFTWARE and the SOFTWARE
Source Materials under the terms and conditions of this Agreement or Order.
Should Customer's Use of the SOFTWARE Source Materials involve use or
copying of copyrighted material or the practice of any invention covered by
a patent, Seller shall not assert such copyright or patent against
Customer.
13. SUBCONTRACTING
Customer reserves the right to enlist contractors for engineering,
installation or maintenance services with respect to Seller's Product.
C-9
ATTACHMENT A
REPAIR CHARGES
Out Of Warranty Repair [*] plus parts.
No Trouble Found For "In Warranty Repairs" [*].
C-10
ATTACHMENT B
SELLER'S HOURS/TELEPHONE CONTACT
8:00 am to 6:00 pm Pacific Time (With voice mail backup and next morning
response)
Telephone 800-297-2424 or 510-226-8289
Fax 510-226-8785
Internet: www.goditigal.com
C-11
ATTACHMENT C
ON-SITE ASSISTANCE RATE
Technical Support
Field Support [*] plus travel and lodging
C-12
EXHIBIT D
PURCHASE FOR RESALE
1. SCOPE
If Customer issues an Order for Product or related Service for resale to
other customers, the terms and conditions of this Exhibit apply.
2. SOFTWARE LICENSE
Seller shall license to Customer's customers under the following terms:
(a) Except for Operating System Software, Seller shall grant to Customer's
customers, and for its employees, agents, and contractors, a
nonexclusive, perpetual, fully paid-up license to Use the Software and
all updates and/or enhancements, including all media on which it may
be recorded or stored. Customer's customers may be required to execute
a separate software license agreement furnished by the software
provider. If so, the terms and conditions of said separate agreement
take precedence over the terms and conditions of this software
section.
(b) The price set forth in an Order under this Agreement or in Exhibit B
includes the fee for the Software furnished and the license obtained
for Customer's customers.
3. PRODUCT WARRANTIES AND CLAIMS
(a) Seller warrants that it has or will pass title, free of all liens and
encumbrances, to all Product that are sold or leased to Customer and
to Customer's customers.
(b) Seller will provide a one (1) year warranty to Customer customers from
the time of customer's acceptance. Such warranty will be consistent
with Exhibit C, Section 3 and Section 4.
4. TRADEMARK LICENSE
Seller grants to Customer the nonexclusive right to use Seller's trade
names and trademarks in marketing Seller's Product. If Seller's trade
names and trademarks are registered in the United States, Customer agrees
to designate the Product properly and depict the marks accurately.
5. PRODUCT LITERATURE
(a) Seller agrees to provide Customer with reasonable amounts of Product
literature, at no additional charge, to properly support Seller's
Product.
(b) Seller hereby grants to Customer a fully paid license, at no
additional charge, for the term of this Agreement, to copy or
otherwise reproduce all or portions of Seller's Product brochures, or
to incorporate portions of Seller copyrighted material in Product
brochures or advertising material composed by Customer,
D-1
provided that Customer shall submit such material composed by Customer
that incorporates such Seller copyrighted material for Seller's prior
approval, which approval shall not be unreasonably withheld. Such
reproduction shall not apply to proprietary and/or confidential
information and shall be subject to all applicable copyright laws.
6. COOPERATIVE ADVERTISING
During the term of this Agreement, Seller shall work in good faith with
Customer to develop a mutually agreed upon program of cooperative
advertising and/or joint promotion.
7. SUPPORT SERVICES
(a) If Customer itself provides warranty and post warranty support
Services to its customers, then Seller shall continue to provide at
least those Product support Services described in Sections 3., 4., 5.,
6., 7., 8., 9., and 12 of Exhibit C, Purchase for Internal Use, with
respect to resale products. Such Services of Seller shall be in
addition to any warranty related Services available to Customer's
customers directly from Seller under Section 3(b) of this Exhibit, and
shall facilitate Customer's ability to provide support to its
customers. Seller's obligation to provide such Services, as
distinguished from its service obligation under the warranty provided
for in Section 3(b), shall extend only to Customer.
(b) If such an end user warranty is not provided by Seller, such Seller
support Services described in Exhibit C, Purchase for Internal Use,
shall, nevertheless, be provided to Customer to facilitate Customer's
ability to provide customer support.
(c) Such warranty and post warranty support Services may include, but is
not limited to, the following:
(1) Telephone technical support/help desk for Product;
(2) Product repair (to include parts);
(3) Coordination of warranty related Product returns to Seller;
(4) Providing extended support beyond Product discontinuance; and
(5) Product installation
(d) Any charges to Customer's customers for support or other Services sold
by Customer to Customer's customers shall be determined by Customer in
its sole discretion.
D-2
EXHIBIT E
SIGNATURE PAGE FOR ATTACHMENTS
The following Attachments listed below contain additional provisions which if
selected (by each party initialing the appropriate space) shall be made a part
of this Agreement.
XX EDI TRADING AGREEMENT
- ------
______ BAR CODE PROGRAM
XX TRAINING
- ------
By signing below, the parties agree to incorporate into this Agreement the
selected Attachments.
GODIGITAL TELECOMMUNICATIONS GTE COMMUNICATION SYSTEMS
INC. CORPORATION
By: /s/ Frank I. Akers By: /s/ Rich E. Potter
Name: Frank I. Akers Name: Rich Potter
Title: President & CEO Title: Group Manager -
Contract Management
Date: 16 April, 1998 Date: 4/23/98
ATTACHMENT 1
EDI TRADING AGREEMENT
1. At CUSTOMER's option, the parties agree to develop an Electronic Data
Interchange (EDI) for the electronic communication of purchase orders,
acknowledgements, subsequent invoicing or other data (DOCUMENTS). All
exchanged DOCUMENTS shall be channeled through one or more Third Party
Networks (TPNs) by one party to the other. Each party will arrange and pay
its own expenses for the transmission of electronic DOCUMENTS. Either
party may change its TPNs with thirty (30) days' prior written notice to
the other. Each party agrees to provide the other access codes necessary
to establish connections. Each party shall adopt reasonable security
procedures to ensure that (i) DOCUMENTS transmitted electronically are
authorized; (ii) its business records and data are protected from improper
use; and (iii) the security of access codes and electronic identification
codes is maintained. Prior to the performance of any new transmission of
DOCUMENTS under this Agreement, SELLER agrees to review and then perform,
to the best of its capabilities, in accordance with the instructions
provided in CUSTOMER's Implementation Guidelines. As determined by
CUSTOMER and SELLER, there may be a period during which the parties test
and resolve any operational issues.
2. At the option of the sending party and if the sending party has the
capacity to receive acknowledgements electronically, then, upon receipt of
a DOCUMENT, the receiving party shall promptly issue an acknowledgement to
the sending party solely for the purpose of acknowledging receipt of the
DOCUMENT. Otherwise, the receiving party shall provide written
acknowledgements to the sending party. If any transmitted DOCUMENT is
received in an unintelligible or garbled form, the receiving party shall
promptly notify the sending party (if identifiable from the received
DOCUMENT) in a reasonable manner. In the absence of such notice, the
sending party's records of contents of such DOCUMENT shall control.
3. For Electronic Funds Transfer (EFT), CUSTOMER agrees to electronically
transfer funds, as appropriate, to the financial institution and bank
account number shown in Attachment A to this Exhibit D, as the same may be
modified from time to time by SELLER upon notice to CUSTOMER within
fourteen (14) days of the effective date of such modification. CUSTOMER
will make payments in accordance with the National Automated Clearing House
Associations (NACHA) Corporation Trading Rules. CUSTOMER's process is
governed by and in accordance with Article 4A of the Uniform Commercial
Code. CUSTOMER will not be responsible for any loss that may arise by
reason of error, mistake or fraud regarding SELLER's information provided
in Attachment A. Further, CUSTOMER will be responsible for loss of data
only when it is due to the sole negligence of CUSTOMER or its originating
bank.
X-1
4. The parties agree that a DOCUMENT properly transmitted electronically,
including a party's identification, shall be the same as a signed writing,
created in the ordinary course of the sending party's business, at or near
the time of the events recorded, and transmitted by a person with knowledge
of the events. When the DOCUMENT is printed from the electronic records,
the DOCUMENT shall be considered an original document. Neither party shall
contest the validity of the DOCUMENT on the grounds that it fails to meet
the common law statute of frauds or the statute of frauds found in Section
2-201 of the Uniform Commercial Code, that it fails to meet the business
records exception to the hearsay rule or that it fails the best evidence
rule because it is not an original document.
5. For matters pertaining to the technical administration of EDI transactions,
the parties shall contact the individuals listed below:
CUSTOMER: SELLER:
GTE Supply
5615 High Point Drive
P. O. Box 169001
Irving, Texas 75016-9001
Attention: Section Manager-
Application Development-Information Technology
HQA03P03
X-2
ATTACHMENT A
EFT INFORMATION
SELLER'S COMPANY
----------------
Name: GoDigital Telecommunications Inc.
---------------------------------
Address: 41305 Albrae Street
---------------------
Fremont, CA 94538
---------------------
_____________________
_____________________
_____________________
EFT Contact Name: Gary Lewis
---------------------
EFT Contact Telephone No: 510-226-8289
---------------------
EFT Payments extended by: Five (5) days
(EFT payment days will be added to existing payment due dates to neutralize
check float.)
Remittance Method (Please check one of the following):
___ EDI ANSI 820 sent to SELLER'S bank with payment
___ EDI ANSI 820 sent to SELLER'S company's EDI mailbox
___ Fax remittance to (___) ____-_______
X Paper remittance sent to existing remittance address
---
SELLER'S FINANCIAL INSTITUTION
------------------------------
Bank Name: Silicon Valley Bank
-----------------------
Address: 3003 Tasman Drive
-----------------------
Santa Clara, CA 95054
-----------------------
_______________________
_______________________
Bank Calling Office: _______________________
Bank Contact Telephone No: 408-654-7380
-----------------------
Bank Transit Routing No: 121140399
-----------------------
EFT INFORMATION
SELLER's EFT Bank Account No
to Receive Payments: 3300018536
-----------------------------
Bank Account Name: GPDigitall Telecommunications
-----------------------------
ACH Format SELLER's Bank
Accepts (CTX or CCD+): CCD+
-----------------------------
Combine EFT Remittance
with ACH: Yes
---------------------(Yes/No)
SELLER's Financial Institution should be consulted since EFT transmission
formats are influenced by SELLER's bank capability to receive electronic
payments.
The above EFT payment instructions are authorized, and the terms and condition
stated in this Agreement (Number C981105PC00I) are accepted by:
------------
/s/ Gary Lewis 4/16/98
------------------------- -------------------------
Signature Date
Gary Lewis Corporate Controller
------------------------- -------------------------
Printed Name Company Title
ATTACHMENT 2
TRAINING TERMS AND STANDARDS
1. SELLER shall provide qualified instructors and the necessary instruction
material, as mutually agreed upon, to train CUSTOMER's personnel in the
marketing, installation, database preparation and administration,
operation, and maintenance of PRODUCT furnished in a cost effective manner.
2. SELLER shall also establish and/or maintain curricula to include, but not
limited to, the following:
1. PRODUCT overview and introduction (e.g., features, functions,
benefits, nomenclature, architecture);
2. Engineering, installation and maintenance;
3. Basic operation and administration;
4. Sizing, configuration and PRODUCT ordering;
5. Planning and budgetary guidelines; and
6. Other subjects deemed necessary by CUSTOMER to support the PRODUCT.
3. SELLER shall change, modify, update and/or add training programs as new
PRODUCT features/releases are made available.
4. SELLER shall maintain a technical training facility and provide CUSTOMER a
course listing of all training courses available to CUSTOMER, notify
CUSTOMER of any curriculum changes and identify those courses that are
critical in the support of the PRODUCT. Training shall be offered on a
regular basis and SELLER shall attempt to meet any reasonable request for
additional or unscheduled training required by CUSTOMER. Additional courses
may be scheduled with sixty (60) days prior written notice.
5. SELLER shall offer to CUSTOMER one (1) training class at no additional
cost, for every [*] purchased/licensed by CUSTOMER from SELLER during each
year of this Agreement. CUSTOMER shall bear the cost of transportation,
meals, lodging or any other incidental expenses of CUSTOMER personnel to,
from and during training. All charges for training, over and above that
offered at no charge, shall be as shown in Attachment I. Prices shall not
be changed by SELLER without written notice to CUSTOMER sixty (60) days in
advance of such change, and must be mutually agreed upon by both parties.
6. SELLER agrees to extend an additional [*] discount on SELLER'S PRODUCT
purchased by CUSTOMER for the sole purpose of training CUSTOMER employees
on the use of the PRODUCT.
7. SELLER shall, at no charge to CUSTOMER, provide copies of all training
materials to the CUSTOMER's training department for review of quality and
applicability to CUSTOMER's training requirements. SELLER shall provide a
plan for the correction of deficiencies identified in such review.
8. If requested by CUSTOMER, SELLER shall, at a mutually agreeable cost,
conduct "Train the Trainer" classes on sales, installation, maintenance,
and engineering of SELLER's PRODUCT for CUSTOMER instructors, at a mutually
agreed upon location.
9. SELLER shall provide, upon CUSTOMER request, one master (camera ready) copy
of any sales, installation, maintenance, and engineering courseware
required for CUSTOMER's instructors to train on SELLER's PRODUCT. The
courseware shall contain an instructor guide, student materials and any
additional aides required to present the course. These master copy
materials shall be provided at no cost. SELLER shall provide CUSTOMER with
reproduction rights for these materials. These materials shall not be
distributed to any non CUSTOMER organization.
10. CUSTOMER may audit SELLER conducted training to ascertain if the materials
are presented in a quality manner. The costs of such audits shall be at no
charge. Any recommendations offered by CUSTOMER shall be incorporated for
future training classes in a timely manner.
11. SELLER certified CUSTOMER instructors shall be afforded the same
consideration as SELLER's instructors in regard to course modifications and
updates. SELLER shall assure that CUSTOMER's instructors have the same
updated material as SELLER's instructors.
12. SELLER shall provide CUSTOMER's instructors, at no cost,
technical/operational support in the form of reasonable telephone
consulting assistance relating to the content of courseware.
13. SELLER shall provide, at the actual cost of reproduction, copies of all
training materials required to support CUSTOMER's embedded base of PRODUCT
that SELLER may have declared as discontinued or obsolete.
$100.00 per hour plus travel and lodging
ATTACHMENT I
TRAINING RATES
[*] plus travel and lodging
EXHIBIT F
SUPPLIER WBE/MBE/SDV EXPENDITURES REPORT
Instructions
1. Please read the instructions below thoroughly and then provide all
information requested. All dollar values should be reported in thousands
of dollars ($000). Should you have any questions, please call 972/751-4473
(Bernadette Threets).
Refer to Attachment F-1 to identify the fields in these instructions.
2. Supplier Information (Header)
(a) Provide a complete supplier name and address for your company.
(b) Provide the general type of products/services provided by your company
and/or, if applicable, the particular division.
(c) Provide the name and phone number of the person within your company
responsible for the reporting information who may be contacted should
there be questions about the information.
3. State Reported
(a) Identify each state to which product is shipped or services are
performed. A separate form should be used for each state. If the
information cannot be provided by state, so indicate by placing "All"
in the blank provided.
4. Service/Product Type
(a) The general categories being reported include the following:
(1) "Construction" outside plant/cellular site construction and
maintenance general building
construction/civil work/engineering
architectural services/installation.
(2) "Commodities" cable/wire/fiber optics tools outside plant
material/equipment special needs (i.e., TDD)
telecommunications equipment/products
radio/transmission equipment/products power
equipment/products test equipment building
materials & hardware computer
hardware/software vehicle/transportation
products non-telecommunication
equipment/products office supplies/equipment
(i.e., paper, paper products, ink & printing
supplies) promotional items/signs.
F-1
(3) "Other Services" equipment rehab or assembly equipment
repair/maintenance/installation
computer/office equipment maintenance
equipment leasing & rental vehicle
services general building maintenance
printing and graphics services telephone
booth installation & maintenance
transportation-ground/sea/rail/air.
(4) "Services Professional" advertising/marketing
architectural/interior design
catering/vending events collection
agencies/centers consulting services
temporary labor services legal services
other professional services
training/lectures/education engineering
services health care ravel services
(5) "Major Equipment" switching/central office
telecommunications network equipment
radio/cellular network
(6) "Other" Any product/service that do not fall
into the categories identified above.
For each general category above, provide "MBE/WBE/SDV expenditures"
for each ethnic classification.
Provide a brief description of the "Other" product/service category.
Refer to Attachment F-2; As with Attachment F-1, please use a separate form for
each state. The information provided on this sheet should match the information
provided for the corresponding state on Attachment F-1.
F-2
ATTACHMENT F-1
Supplier WBE/MBE/SDV Expenditures Report
For Goods/Services Purchased by GTE
- -------------------------------------------------------------------------------------------------------------------------------
Supplier: Division/Product:
- -------------------------------------------------------------------------------------------------------------------------------
Address: Contact Name:
- -------------------------------------------------------------------------------------------------------------------------------
City, State, Zip Code: Contact Phone #:
===============================================================================================================================
STATE REPORTED Construction Commodities Other Services Professional Major Equipment Other** Totals
===============================================================================================================================
African American Male
- -------------------------------------------------------------------------------------------------------------------------------
African American Female
- -------------------------------------------------------------------------------------------------------------------------------
Asian American Male
- -------------------------------------------------------------------------------------------------------------------------------
Asian American Female
- -------------------------------------------------------------------------------------------------------------------------------
Hispanic American Male
- -------------------------------------------------------------------------------------------------------------------------------
Hispanic American Female
- -------------------------------------------------------------------------------------------------------------------------------
Native American Male
- -------------------------------------------------------------------------------------------------------------------------------
Native American Female
- -------------------------------------------------------------------------------------------------------------------------------
Non-Minority Female (WBE)
- -------------------------------------------------------------------------------------------------------------------------------
Service Disabled Veteran
- -------------------------------------------------------------------------------------------------------------------------------
TOTAL
===============================================================================================================================
Quarter and Year Reported:______________________________
WBE/MBE/SDV Expenditures Report should be completed on a quarterly basis and
returned to GTE as indicated below:
1/st/ Qtr due May 15/th/ 3/rd/ Qtr due Oct 15/th/
2/nd/ Qtr due July 15/th/ 4/th/ Qtr due Jan 15/th/
Reports should be returned on or before the due date to the following
address: GTE Supply
PO Box 169001
Irving, TX 75016-9001
MC: HQA06R01
* Each state should be reported on a separate form. Please provide specific
subcontractor information on Attachment F-2.
** Describe "Other":____________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
The information provided above is based solely on WBE/MBE/SDV goods and/or
services specifically purchased by GTE.
_______________________________________________
(Signature of Authorized Company Representative)
ATTACHMENT F-2
Supplier WBE/MBE/SDV Expenditure Report
F-3
Supplier Name:_____________________________________
State Reported:___________________________
Qtr. & Yr. Reported:______________________
Instructions:
Please provide information detailing the name, address, & contact of the
minority firms reported on Attachment F-1. List the *ethnic categories (African
American Male, Asian American Female, etc.) & the **type of service provided
(Construction, Commodities, Equipment, etc.) If additional space is needed,
please copy this form for multiple page use or call 972/751-4473 for extra
copies.
- --------------------------------------------------------------------------------------------------------------------------------
1 Subcontract's Company Name City & State Contact Name Telephone $
- --------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
* Ethnicity & Gender ** Type of Service Provided $$ Paid this Quarter Cumulative $$ YTD
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
2 Subcontract's Company Name City & State Contact Name Telephone $
- --------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
* Ethnicity & Gender ** Type of Service Provided $$ Paid this Quarter Cumulative $$ YTD
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
3 Subcontract's Company Name City & State Contact Name Telephone $
- --------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
* Ethnicity & Gender ** Type of Service Provided $$ Paid this Quarter Cumulative $$ YTD
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
4 Subcontract's Company Name City & State Contact Name Telephone $
- --------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
* Ethnicity & Gender ** Type of Service Provided $$ Paid this Quarter Cumulative $$ YTD
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
5 Subcontract's Company Name City & State Contact Name Telephone $
- --------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
* Ethnicity & Gender ** Type of Service Provided $$ Paid this Quarter Cumulative $$ YTD
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
F-4
EXHIBIT G
SHIPPING AND CARRIER ROUTING INSTRUCTION
EXHIBIT G
GTE SHIPPING AND CARRIER ROUTING INSTRUCTION
(APRIL, 1997)
EXHIBIT G
GTE SHIPPING AND CARRIER ROUTING INSTRUCTION
TABLE OF CONTENTS
PAGE
1. PURPOSE 1
2. NOTICE 1
3. BILL OF LADING 1
4. PALLETIZATION 2
5. PACKING LIST 2
6. PACKAGE LABELING/INSTRUCTION 3
7. EXTERNAL PACKAGING 3
8. FREIGHT TERMS 3
9. CARRIER ROUTING INSTRUCTION UTILIZING CALIBER 4
10. CARRIER ROUTING INSTRUCTION WHEN NOT UTILIZING CALIBER 5
11. AUTHORIZED CARRIERS 8
ATTACHMENT A: 42 X 42 INCH PALLET
ATTACHMENT B: GTE REGIONAL ROUTINGS
57
EXHIBIT G
GTE SHIPPING AND CARRIER ROUTING INSTRUCTION
As directed by purchase order a more specific set of instructions may be
provided for some shipments.
The following instructions will reduce cost, save time in receiving and assure
timely payment of invoices.
1. PURPOSE
The purpose of these instructions is to provide information and guidelines
for shipments to CUSTOMER. Use of these instructions will assist CUSTOMER
to meet its goals and complete shipments on-time, damage free at the lowest
cost.
These instructions are meant to aid both CUSTOMER and SELLER. If SELLER
has recommendations for improvements, SELLER should contact CUSTOMER.
2. NOTICE
SELLER is responsible for complying with these instructions. Deviation
from these instructions requires prior authorization from CUSTOMER or be
reflected on the purchase order. CUSTOMER reserves the right to refuse or
reduce reimbursement for freight charges or charge back to SELLER excess
freight charges incurred due to noncompliance with these instructions.
SELLER may also be responsible for any freight claims arising from
noncompliance with these instructions.
3. BILL OF LADING
SELLER will consolidate all purchase orders on one bill of lading, shipping
to any one individual CUSTOMER's receiving location on the same day, or as
directed by a GTE transportation department, its agent or a GTE purchasing
department.
EXCEPTION: Separate bills of lading are to be completed for separate GTE
entities (e.g. GTE SUPPLY, GTE TELEPHONE OPERATING COMPANIES entity, GTECC,
GTEL) shipping to the same address on the same day.
In preparing the bill of lading for the carrier, record the total piece
count, the number of pallets and total weight per bill of lading. Example:
If shipping 578 pieces on 10 pallets weighing 25,000 pounds, the bill of
lading should read: 578 pieces on 10 pallets - 25,000 pounds.
Purchase order numbers and other CUSTOMER reference information, such as
work order/project number, must be entered in the appropriate space on the
bill of lading. If specific reference space is not provided, the type of
reference and reference information should be included as the last item in
the "ship to" area and again in the body of the bill of lading.
NOTE: For collect (or third party collect as with GTE Mobilnet purchase
orders) shipping to GTE Supply, GTE Telephone Operating
Companies, and GTE Mobilnet, CUSTOMER reference information
contained in the body of the bill of lading must also include the
Transaction Verification Number (TV number) obtained from Caliber
Logistics, Inc. (CALIBER) at: 1-800/483-0015. (Reference Section
9 for details)
Any information to be transposed by the carrier to the delivery receipt
must be included on the bill of lading.
SELLER's reference number should be included in the appropriate space of
the bill of lading or in the body of the bill of lading.
Bills of lading for all truckload shipments must be marked "notify
consignee 24 hours prior to expected delivery" and include CUSTOMER's
receiving location (consignee) telephone number if available. If not
marked appropriately, shipment may be delayed in unloading and measured
delivery intervals may not be met. Caliber can provide SELLER with GTE
consignee telephone number if SELLER does not have it.
Material must be described per the appropriate National Motor Freight
Classification (NMFC) description and when rates are dependent on shipment
value, the shipment value giving the lowest charges should be used.
Material Safety Data Sheet (MSDS) document provides pertinent information
about the nature of a particular chemical substance or mixture. The MSDS
is developed by the manufacturer or formulator of the hazardous substance
or mixture and must be marked and described appropriately, indicating all
special handling and safety instructions. Hazardous materials that are
regulated by the Department Of Transportation (DOT) must comply with all
DOT shipping regulations.
4. PALLETIZATION
The standard pallet size that must be used for shipments to CUSTOMER by
SELLER is 42 X 42 inches (see Attachment A). The pallet should be two way
entry only and the maximum height including the pallet should be no greater
than 50 inches. A maximum one inch overhang is allowed.
NOTE: For GTE Supply, GTE Telephone Operating Companies, and GTE
Mobilnet shipments, there will be no exceptions to utilizing a
standard 42 X 42 inch pallet. If a standard 42 X 42 inch pallet
cannot be used, then SELLER must contact GTE Supply's Packaging
Administrator at 972/751-4413.
5. PACKING LIST
Purchase order numbers and other CUSTOMER reference information such as
work order/project number must be entered in the appropriate space on the
packing list.
2
The packing list should include the total number of cartons shipped and
CUSTOMER's part number/ item ID as shown on purchase order. The packing
list should be visible from the front of the pallet and not buried in the
shipment.
SELLER's resulting invoice must reflect the same packing list quantities
and items or payment may be delayed.
On a palletized load as part of a truckload, place the packing list in an
envelope marked "Packing list Enclosed" and place it on the last pallet
loaded.
On less than a truckload shipment, number the pallets and place the packing
list on pallet number one.
On a carton only shipment, number the cartons and place the packing list on
the outside of carton number one.
6. PACKAGE LABELING INSTRUCTION
All pieces in the shipment should be labeled with SELLER's name, address,
reference number and the destination name and address with CUSTOMER
reference information such as purchase order number as required by Section
15(d) and if applicable, work order/project number.
When shipping more than one carton to one location, strap the cartons
together and ship as one unit, to the extent allowed by the carrier
utilized. Palletize where the quantity of cartons justifies palletization.
This ensures all cartons have a better chance of arriving intact and on
time.
Cartons containing more than one item should be labeled as to part numbers
contained inside such cartons. All cartons must be labeled with purchase
order numbers contained therein. If a master container (a.k.a. gaylord) is
practical for transporting multiple cartons, the master container must be
labeled to show all purchase order numbers contained inside. "Multi-
Order/Mixed Load" must be written on the master container.
If you are shipping materials that normally are packaged in more than one
carton ("kit"), pack and ship all cartons together so that all items reach
the destination as a unit. The packing list should indicate that a kit is
being shipped containing multiple items.
7. EXTERNAL PACKAGING
Pallet loads should have corner posts and should be stretch wrapped to
insure minimum damage during transit and to allow pallets to be stacked in
warehouse facilities. Stretch wrap should be at least 80 gauge.
Cartons or items may be strapped to the pallet utilizing 0.018 X 3/4 inch
steel strapping or a vinyl strapping of equal strength. When using
strapping, corner caps should be attached to protect the items from the
strapping during transit.
3
8. FREIGHT TERMS
The preferred freight terms for SELLER's shipments, consigned to a GTE
address, are FOB origin freight collect in which case CUSTOMER (or its
agent) will be responsible for selecting a carrier, arranging insurance and
paying the carrier for freight costs. No freight cost will appear on
SELLER's invoice, "Reference Section 9, CARRIER ROUTING INSTRUCTION
UTILIZING CALIBER"
In some cases, purchase order instructions may be:
. "Freight Prepaid and Add" used only with approval of the buyer of
record, and when advantageous to GTE, in which case the carrier will
send the freight invoice to SELLER, SELLER pays the freight and adds
reasonable freight cost to CUSTOMER's invoice as a separate line item.
SELLER bears all risk for materials during transportation and assumes
all authority for selecting a carrier.
. "Freight Collect with Third Party Billing" in which case the carrier
will send the freight invoice to the CUSTOMER's third party and not
CUSTOMER's receiving location, and the third party will be responsible
for paying the invoice. These purchase orders should specify the use
of CALIBER for carrier selection, if GTE is the responsible freight
payor. Carrier selection in this case remains with CUSTOMER or its
agent. (reference Section 9)
. "Freight Prepaid and/or Allow" In which case SELLER may include
freight in the cost of goods; in no event will a freight cost line
item appear on SELLER's invoice. Carrier selection in this case is
SELLER's responsibility.
9. CARRIER ROUTING INSTRUCTION UTILIZING CALIBER LOGISTICS, INC.
For FOB Origin /Freight Collect (or third party collect) shipments, under
150 pounds, to GTE Supply, GTE Telephone Operating Companies, or GTE
Mobilnet.
If the SELLER is on UPS Consignee Billing, and UPS ground can meet the
purchase order's required delivery date:
. Do not call CALIBER LOGISTICS
. Ship via UPS consignee billing Collect ground.
If the SELLER is NOT on Consignee Billing, and UPS ground can meet the
purchase order's required delivery date, ship via UPS ground:
. Do not call CALIBER LOGISTICS
. Ship via UPS ground Prepaid and Add
SELLER must make arrangements with UPS to initiate Consignee Billing, if
not already done.
If SELLER can not meet the required delivery date of purchase order via UPS
ground (regardless of weight), SELLER will contact CALIBER for routing.
4
SELLER is to contact CALIBER LOGISTICS, Inc. (CALIBER) at:
1-800/483-0015.
The information that CALIBER will require from SELLER to economically route
freight to GTE Supply, GTE Telephone Operating Companies, and GTE Mobilnet
or other GTE customer locations as stated on purchase order includes:
Required Delivery Date (RDD) or ship date, only if required delivery
date is not on purchase order
Material Availability Date (from supplier's location)
Purchase Order number
Number of pieces (boxes, crates, pallets)
Total shipment weight
Origin
Hazardous Material handling instructions
Destination
Part number(s) that is/are being shipped
Upon SELLER's furnishing of the information identified above to CALIBER,
CALIBER will provide SELLER a TV number, which must be included in the body
of the bill of lading.
Failure to comply with these requirements will result in any excess freight
charges being billed back to SELLER. Any administrative and processing
costs to initiate charge backs may be added to such charges to SELLER.
Questions concerning these instructions or problems arising from the use of
CALIBER or UPS Consignee billing should be referred to:
Section Supervisor-Transportation
GTE Supply MC: HQA07H04
5615 High Point Drive
Irving, TX 75016
972/751-4768 or 972/751-5601
10. CARRIER ROUTING INSTRUCTION FOR GTE COMPANIES THAT DO NOT CURRENTLY UTILIZE
CALIBER LOGISTICS, INC.
For shipments from SELLER to GTE Affiliates who do not use CALIBER and with
any of the following freight terms:
5
. FOB Origin, Freight Collect;
. FOB Origin, Freight Collect with Third Party Billing
If CUSTOMER is the payor of the carrier freight invoice for either collect or
third party, the following instructions MUST be used in selecting a carrier:
Contact buyer of record on purchase order for expedited or premium freight
authorization.
Step 1: To determine if routine transit time or expedited or "premium"
transportation is required:
SHIPMENTS UNDER 150 POUNDS:
If the SELLER is on UPS Consignee Billing, and UPS ground can meet the
purchase order's Required Delivery Date, ship via UPS ground.
. Ship via UPS Consignee Billing Collect ground.
If the SELLER is NOT on Consignee Billing, and UPS ground can
meet the purchase order's Required Delivery Date, ship via UPS ground.
. Ship via UPS Prepaid and Add.
If SELLER is not set up on Consignee Billing, SELLER must contact
UPS to initiate Consignee Billing.
If the surface transit time is not adequate, expedited or premium
transportation must be authorized by CUSTOMER (or its agent) prior to
shipment. Refer to "Premium Transportation" instructions in Step 2
below and in Section 11, Authorized Carriers.
SHIPMENTS OVER 150 POUNDS (non premium)
150 - 18,000 pounds: (reference ATTACHMENT B)
. Less than 200 miles, transport via GTE contract carrier (regional
LTL)
. 200-500 miles, transport via GTE contract LTL regional carrier or
GTE contract LTL long haul carrier
. 500+ miles, transport via GTE contract LTL long haul carrier
SHIPMENTS OVER 18,000 POUNDS:
. Contact the buyer of record on purchase order
For collect shipments under 150 pounds, SELLER must use UPS Consignee
Billing whenever purchase order delivery date allows. Multiple cartons
should
6
be banded together, and total weight cannot exceed 150 pounds. Do not
ship more than ten cartons to one address at one time via UPS ground.
Step 2: Expedited/Premium Transportation - use only GTE contract carriers
for ground or air freight transport, as listed in Section 11,
Authorized Carriers:
Less than 150 pounds:
. Less than 200 miles, transport via UPS ground for one-day
service.
. Over 200 miles, transport via air express/air freight, with
approval of the buyer of record on purchase order
151 - 1000 pounds: (reference ATTACHMENT B)
. Less than 200 miles, transport via expedited truck
. 200 - 500 miles, transport regional LTL or expedited truck
. 500+ miles, transport via air freight or other premium ground
service - Requires approval from buyer of record on purchase
order
Over 1000 pounds:
. Contact the buyer of record on purchase order
Shipments requiring air ride capability (electronic van), contact GTE
Section Supervisor Transportation at: 972/751-4768 or 972/751-5601.
Step 3: If SELLER's shipping location and CUSTOMER's receiving location are in
different regions, reference ATTACHMENT B "GTE REGIONAL ROUTING", use
either regional LTL or long haul LTL carrier if direct service is
provided between origin and destination. For service within a region
and service is equal, regional carriers should be used. Select the
carrier based on best service provided by the carrier between the
origin and destination points and has the ability to meet the required
delivery date on purchase order.
Step 4: Contact the carrier to verify service availability and arrange pickup.
Most GTE national account carriers provide toll free national customer
service telephone numbers that can be used to verify service and
arrange for pickup. Refer to Section 11 "Authorized Carriers".
Step 5: For tracing and requesting proof of delivery contact the carrier's
customer service point listed under Section 11 "Authorized Carriers".
If CUSTOMER is not the payor of the carrier freight invoice for either
collect or third party, SELLER will be responsible for selecting a
carrier that provides the required service at the lowest cost. In all
cases, SELLER is responsible
7
for verification that the selected carrier can be expected to provide
the service required.
11. AUTHORIZED CARRIERS FOR SHIPMENTS TO GTE ENTITIES NOT CURRENTLY UNDER
CALIBER LOGISTICS, INC. PROCESSES
LTL long haul (generally interstate/500+ miles including Hawaii, Alaska and
Puerto Rico from/to the continental United States and Canada):
CF Motorfreight 800/543-9942
Yellow Freight Systems 800/610-6500
LTL region (generally less than 500 miles within regions and between
regions and adjoining states):
GTE Regional Routings (Reference Attachment B)
Air or premium shipment:
. Air express service authorized carriers (under 40 pounds):
Airborne Express 800/247-2676
Federal Express 800/238-5355
DHL Worldwide (International only) 800/225-5345
. DOMESTIC air freight authorized carriers (over 40 pounds):
Airborne Express 800/247-2676
Amertranz 800/274-4763
Burlington Air Express 800/225-5229
Emery Worldwide 800/443-6379
Pilot 800/851-8112
. INTERNATIONAL air freight forwarders/customs documentation:
Circle Freight 708/616-7013
DHL Worldwide 800/225-5345
Emery Worldwide 800/443-6379
Fritz Companies 214/621-2222
Note: Purchase orders with an "INTERNATIONAL" ship to address require
special handling, the SELLER must follow the shipping instructions on
the purchase order. If SELLER ships without following these
instructions freight could be held in either U.S. Customs or foreign
customs and/or returned to origin. Any cost involved in a SELLER not
following shipping instructions will be at the expense of the SELLER
and not passed on to GTE Supply (CUSTOMER).
8
ATTACHMENT A
42 X 42 INCH PALLET
ATTACHMENT A
42 X 42 INCH PALLET
Deck boards to be equally spaced
[DIAGRAM OF 42 X 42 INCH PALLET]
Material List:
(1) 3 PCS 1-3/8" X 3-5/8" X 42"
(2) 7 PCS 1/2" X 3" X 42"
(3) 3 PCS 1/2" X 3" X 42"
Material: To be Group III and IV hardwoods, cleanly cut.
Grade: To be good sound material, free of knots, with an average
diameter no greater than 1/3 the width of the piece or other
defects of a more serious nature.
Moisture content: Green and/or dry.
Nailing: Nail item #2 and #3 to items #1 with two (2) 4d, 1-1/2"
drive screw nails at each nailing joint. Nails to be
staggered and well driven.
ATTACHMENT B
GTE REGIONAL ROUTINGS
ATTACHMENT B
GTE REGIONAL ROUTINGS
Regional Interstate LTL Transportation Services:
Carrier National Customer Service
------- -------------------------
Mid-west American Freightways 800/443-3786
Central Transport 800/221-0749
Hyman Freightways 800/445-2142
Preston Trucking 800/551-7737
Viking 800/845-4647
Northeast American Freightways (MD,DL) 800/443-3786
Central Transport 800/221-0749
Preston Trucking 800/551-7737
Viking 800/845-4647
Southern AAA Cooper 800/633-7571
American Freightways 800/443-3786
Atlanta Motorlines 800/729-2939
Averitt Express 800/225-9794
Central Transport 800/221-0749
Conway Southern 800/852-5990
Southeastern Freightways 800/637-7335
Viking 800/845-4647
Western Conway Western 800/852-5990
Oak Harbor 800/285-6254
Silver Eagle 503/252-9165
Viking 800/845-4647
Long Haul LTL Interstate Transportation Services:
CF Motorfreight 800/543-9942
Yellow Freight Systems 800/610-6500
Intrastate LTL Transportation Services:
Do not use between states within a region, for use within the states as listed in the attached matrix.
- ----------
Conway Central 800/852-5990
Merchants 800/527-4118
Overnite 800/333-7400
TNT Red Star 201/344-7700
Wilson Trucking 800/494-5766
Crescent 510/471-8900
Canada LTL Transportation Services:
Shipments between Canada and the United States.
All areas CF Motorfreight 800/543-9942
Yellow Freight Systems 800/610-6500
Western Silver Eagle 503/252-9165
Eastern Central Transport 800/221-0749
Preston Trucking 800/551-7737
Air Transportation Services
Do not use next day or second day air freight within the state or between states
- ----------
within a region, and less than 500 miles, as the previously listed regional
carriers can provide the same level of service via surface at a significant
reduction in cost.
Air Express (Under 40 lbs.)
----------- ---------------
Airborne Express 800/247-2676
Federal Express 800/238-5355
Domestic Air Freight (Over 40 lbs.)
--------------------- --------------
Airborne Express 800/247-2676
Amertranz Worldwide 800/274-4763
Burlington Air Express 800/225-5229
Emery Worldwide 800/443-6379
Pilot Air Freight 800/851-8112
LTL REGIONAL MAP
[MAP OF U.S. AND LOWER CANADA
BROKEN INTO THE FOLLOWING REGIONS:
Eastern Canada, Western Canada, Northeast, Midwest, South & West]
EXHIBIT H
PRODUCT DELIVERY INTERVAL
Eight (8) Weeks ARO
EXHIBIT I
CENTURY COMPLIANCE
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CENTURY COMPLIANCE
1. CENTURY COMPLIANCE
(a) When used in this Exhibit with initial capital letters, the following
terms have the respective meanings given below.
(1) "Procured System" means the software products (including
firmware), computerized hardware products (whether general or
special purpose), documentation, data, and other similar or
related items of the automated and/or computerized 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.
(2) "Calendar-Related" refers to date values based on the Gregorian
calendar (the calendar in use throughout most of the world), as
further 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.
(3) "Date Data" means any Calendar-Related data in the inclusive
range January 1, 1900, through December 31, 2050, which the
Procured System uses in any manner.
(4) "System Date" means the Date Data value which the Procured
System shall be able to use as its current date while
operating.
(5) "Century Compliant" means that the Procured System satisfies
the requirements set forth in Sections 1.(b), 1.(c), and 1.(d)
below.
(6) "Century Noncompliance" 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 and/or computerized systems and users via user interfaces,
electronic interfaces, and data storage, the Procured System
represents dates without ambiguity as to century, provided such other
automated and/or computerized systems also represent dates without
ambiguity.
(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 between those of such dates that are successive:
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; and January 1, 2001.
(e) These representations survive the expiration or earlier termination of
this Agreement.
2. INTERFACING
The Procured System shall have the present capability, which can be readily
utilized by CUSTOMER, of providing Calendar-Related data to and accepting
Calendar-Related data from other automated and/or computerized systems and
users in a format such as, but not limited to, four-digit CCYY format,
where CC are the two digits expressing the century and YY are the two digit
expressing the year with that century (e.g., 1996, 2003 and 2027). SELLER
shall provide CUSTOMER with all necessary interfacing information
describing the format utilized by the Procured System, if different than
CCYY format.
3. CENTURY NONCOMPLIANCE REMEDY
In the event the Procured System is Century Noncompliant in any respect,
SELLER shall, at no cost to CUSTOMER, correct the Century Noncompliance and
provide the corrected Century Compliant Procured System to CUSTOMER no
later than ten (10) days after a Noncompliance has been identified, unless
otherwise agreed by CUSTOMER in writing.
4. NONCOMPLIANCE NOTICE
In the event SELLER becomes aware of a possible or an actual Century
Noncompliance in the Procured System, SELLER shall promptly inform CUSTOMER
of all relevant information (and timely provide CUSTOMER updates to such
information) with respect to Seller's knowledge. SELLER shall respond
promptly and fully to inquiries by CUSTOMER (and timely provide updates to
any responses provided to CUSTOMER) with respect to any possible Century
Noncompliance in the Procured System. In the foregoing, the use of
"timely" means promptly after the relevant information becomes known to or
is developed by or for SELLER.
EXHIBIT J
STANDARDIZATION POLICIES, PROCEDURES AND TERMS
TABLE OF CONTENTS
PAGE
1. STANDARDIZATION POLICY............................................... 1
2. PRODUCT EVALUATION TYPES AND FUNDING................................. 1
3. PRODUCT STANDARDIZATION AND ACCEPTANCE............................... 2
4. TECHNOLOGICAL OR SPECIFICATION CHANGE/PRODUCT
DELETION/SUBSTITUTION................................................ 3
5. UNSATISFACTORY CONDITION SITUATIONS.................................. 3
6. PRODUCT CHANGES...................................................... 4
7. QUALITY ASSURANCE REPORTING.......................................... 6
8. CUSTOMER'S REMEDY FOR NONCOMPLIANCE.................................. 6
i
EXHIBIT J
STANDARDIZATION POLICIES, PROCEDURES AND TERMS
1. STANDARDIZATION POLICY
The GTE standardization process exists to manage the introduction and
evaluation of new or enhanced product and the life-cycle management of
installed or resold Product. Customer/Seller interactions will proceed
smoothly if Seller directs presentation efforts for new or enhanced product
offerings to Customer's Standardization organization(s) to ensure timely
evaluation and consideration as GTE Standard for system wide procurement
and application. The GTE standardization process also complements normal
Customer/Seller interaction required to support existing applications and
in-place enhancements of the Seller's Product and technology.
2. PRODUCT EVALUATION TYPES AND FUNDING
GTE's Standardization organization is responsible to determine the extent
and level of evaluation necessary to designate a Seller's Product as GTE
Standard. The evaluation may include a paper evaluation, customer survey,
certification, laboratory specification testing, field trial inter-
operability and/or functional evaluations and first customer trials. The
evaluations are required to assess the quality, functionality, reliability
and safety of such new or enhanced product prior to possible approval,
purchase, and deployment within GTE.
(a) In order for the parties to agree to pursue GTE standardization of new
or enhanced product in accordance with Customer's standardization
and/or testing policies and procedures, funding for field trial and/or
market trial tests will need to be determined by mutual consent. This
agreement will minimally include equipment, installation, testing
personnel, support, removal, shipping and termination conditions.
(b) If laboratory testing is necessary, the purpose is to verify
compliance to Seller's, GTE and/or other relevant specifications. The
specifications will be identified or provided to the Seller in writing
prior to the testing. If the parties agree to pursue GTE
Standardization and laboratory testing, the Seller agrees to bear all
Costs associated with required laboratory testing. If the Seller owns
or controls a laboratory facility that has current certification by
the GTE standardization organization(s), then Seller's testing results
may be accepted. Otherwise, the Seller will be provided with a list of
GTE certified independent laboratories, whose results will be
accepted. If Seller has previous laboratory testing results that
verify compliance to GTE and/or industry standards, then Customer
agrees to consider such test results. Laboratory testing conducted at
Seller's expense does not guarantee Product acceptance by Customer
and, if Seller's Product is not standardized by Customer's
standardization organization(s) for any reason, Customer shall not be
liable for any cost incurred by Seller for any such laboratory testing
for any reason.
(c) Based on Product changes made by Seller, Customer may determine, in
its sole discretion, that a reevaluation of Product is necessary to
remain GTE Standard. Additionally, there may be instances where UCR
problem resolution can only be verified with laboratory testing. The
purpose of this testing is to ensure continued quality of Product
purchased and deployed by Customer. In
J-1
such cases, Seller shall, with its consent, bear any costs associated
with laboratory testing, in accordance with conditions identified in
paragraph 2.b. Laboratory tests conducted at Seller's expense do not
assure that Product will remain GTE Standard and, if Seller's Product
does not pass reevaluation for any reason, Customer shall not be
liable for any costs incurred by Seller for such laboratory testing
for any reason.
3. PRODUCT STANDARDIZATION AND ACCEPTANCE
The Evaluation Exception Report (EER) is used by the Customer to identify
Product discrepancies that are discovered during an evaluation and require
attention prior to approval and designation as GTE Standard.
(a) Customer classifies EER discrepancies into one of four (4) levels of
priority (Priority Levels 1, 2, 3, and 4).
(b) A priority one (1) EER identifies a critical feature, service,
operations, maintenance or documentation problem. As the most serious
category of Product discrepancy, Seller must immediately pursue
corrective action to continue Product evaluation. Evaluation of the
Product may continue at the discretion of the Customer or may be
suspended until a Seller correction is provided to Customer. A
satisfactory resolution is required to be verified prior to a
standardization decision and prior to placing the Product in a revenue
producing, live customer or on-line testing environment.
(c) A priority two (2) EER identifies a major failure, service,
operational, maintenance or documentation problem. Evaluation of the
Product will usually be continued, although testing may be suspended
at the discretion of the Customer, generally when the Product has
multiple priority one (1) or two (2) EERs unresolved against the
Product. A satisfactory resolution is required to be verified prior to
a standardization decision and prior to placing the Product in a
revenue producing, live customer, environment.
(d) A priority three (3) EER identifies a minor feature, service,
operational, maintenance or documentation problem. Priority three (3)
EERs do not interrupt the evaluation effort. A satisfactory
resolution or identification of a resolution along with a resolution
implementation time line is required prior to a standardization
decision. An open EER will be converted to an Unsatisfactory
Condition Request (UCR) of the same priority at the time of a positive
standardization decision. An open Priority 3 EER/UCR may require the
disposition of Product use and application limitations until resolved.
(e) A priority four (4) EER identifies a possible feature, service,
operational, maintenance or documentation enhancement. The evaluation
effort will not be suspended unless Customer believes that the
enhancement is necessary to the Viability of Product deployed by GTE.
Seller agrees to consider the enhancement under Section 6.(e) PRODUCT
CHANGE. At the completion of the evaluation, these EERs will be
withdrawn or converted to a design request.
(f) Customer reserves the right to terminate or suspend any evaluation
based on unresolved EERs.
(g) During an evaluation, Seller shall provide telephone support from
Seller's Technical Service Center. Such telephone support shall be
available twenty-
J-2
four (24) hours a day, seven (7) days a week, without any additional
charge to Customer.
(h) In the event Seller's Product fails evaluation, Customer reserves the
right to return to Seller any affected Product that was purchased
during the evaluation period and Seller shall refund to Customer any
amounts paid with respect to such Product. Any Product returned must
be unused, undamaged, and in its original carton.
4. TECHNOLOGICAL OR SPECIFICATION CHANGE/PRODUCT
DELETION/SUBSTITUTION
(a) Seller is required to give Customer advance written notice within one
hundred twenty (120) days, or as soon as Seller has official release,
of any technological or specification change, software/firmware
revision, Product deletion or manufacturer discontinuance that would
significantly impact Product operation, interchangeability with
existing Product, appearance, warranty, life cycle or GTE
engineering/quality approvals of any Product. Seller shall, at the
time of notification, provide Customer with (i) a Product change
number; (ii) a description of such change; (iii) the reason for
change; (iv) a description of the impact of such change upon
reliability, Product specifications, or form, fit or function; (v)
proposed price impact (if any); and (vi) proposed effective date for
such change and recommended implementation schedule.
(b) If the parties fail to reach agreement on any such change in Product
to be made by Seller, then, in addition to all other rights and
remedies at law or in equity or otherwise, Customer shall, at no cost
or liability, have the right to terminate all pending purchase orders
for Product affected by such change.
(c) Seller may discontinue the availability of Product at any time, but
shall accept Orders for discontinued Product for a period of at least
ninety (90) days after the effective date of discontinuation. Orders
for discontinued Product shall only be accepted if delivery is
requested within one hundred and eighty (180) days of the effective
date of discontinuation.
(d) Seller agrees that if the required one hundred twenty (120) days'
prior written notice is not provided, Seller shall accept, at
Customer's option, a Product exchange or return for all Product in
Customer's inventory on the effective date of the change. Any Product
returned must be unused, undamaged and in the original carton and may
be returned, at Customer's option, for one hundred percent (100%)
credit of the price paid or an equal dollar value exchange for any
other Product offered under this Agreement.
5. UNSATISFACTORY CONDITION SITUATIONS
If at any time during normal operation Customer encounters an
unsatisfactory condition in the Product, Seller agrees to meet the
following time frames for resolving the condition. An Unsatisfactory
Condition Report (UCR) is the vehicle to formally document a condition in
writing. The UCR is also used to track, report and verify the condition.
(a) A priority one (1) UCR reflects a condition which endangers public or
employee safety; degrades the ability to track, collect, or produce
revenue; causes major degradation of service; or degrades the basic
functionality of telecommunication service or its support systems by
degrading Customer's ability to provide day-
J-3
to-day services to its customers. Within fifteen (15) days of receipt
of written notification from Customer of a priority one (1) UCR,
Seller shall acknowledge receipt thereof in writing and confirm or
deny in writing the existence of the conditions stated in the UCR.
Seller must provide a permanent resolution within thirty (30) days of
such written notification from Customer.
(b) A priority two (2) UCR reflects a condition that potentially degrades
the ability to track, collect, or produce revenue; could potentially
result in a major degradation of service; could degrade the basic
functionality of telecommunication service or its support systems by
degrading Customer's capability to provide day-to-day services to its
customers. Within fifteen (15) days of receipt of written
notification from Customer of a priority two (2) UCR, Seller shall
acknowledge receipt thereof in writing and confirm or deny in writing
the existence of the conditions stated in the UCR. Seller must
provide a permanent resolution within ninety (90) days of
notification.
(c) A priority three (3) UCR reflects a condition that could adversely
affect normal maintenance and/or administration of service; could
adversely degrade the basic functionality of telecommunication service
or its support systems by Customer's capability to provide day-to-day
services to its customers. Within fifteen (15) days of receipt of
written notification from Customer of a priority three (3) UCR, Seller
shall acknowledge receipt thereof in writing and confirm or deny in
writing the existence of the conditions stated in the UCR. Seller
must provide a permanent resolution within one hundred eighty (180)
days of notification.
(d) The term "permanent resolution" shall mean a correction to an
unsatisfactory condition in the form of a new or revised hardware or
software module, hardware modification kit, software patch and/or
revised operating or maintenance procedures that are acceptable to
Customer. Corrections that are temporary in nature, such as work-
around procedures, certain types of hardware modifications or software
patches, shall require (i) a final version of the correction to be
included in the next formal version/ modification/ release of Product
provided to Customer or (ii) written Customer acceptance of an
alternative. In either (i) or (ii), Seller will provide a schedule
for implementation of the final version of the correction, upgrade, or
change, as applicable. On an exception basis, Customer may agree to
an extension of the time frames specified in paragraph a, b or c, the
Seller is bound by the newly agreed upon date.
(e) The Seller has the option to discuss the UCR condition statement with
the Customer (e.g., whether condition exists within stated performance
specifications verses a design change) or query a priority level
assignment. However, the time lines are in no way affected by this
query or discussion, unless the priority is eventually modified by
Customer or the UCR is withdrawn.
6. PRODUCT CHANGES
(a) If, after Product has been shipped to Customer, Seller issues changes
affecting Product and such change is identified as necessary for the
Product to continue to meet Seller's published specifications or
design criteria (Mandatory Engineering Change), including an
identified correction of a deficiency as a result of a UCR (refer to
Section 4, UNSATISFACTORY CONDITION SITUATIONS, above), Seller shall
provide prompt notification of required changes to Customer's
standardization and/or testing organization(s) at the
J-4
address provided to Seller for such purpose. Seller shall, at Seller's
expense, be responsible for costs for all Mandatory Engineering
Changes and installation of such changes whether implemented by Seller
or Customer for a period of five (5) years beyond the Product warranty
period, provided Product has been maintained during this period at
current revision levels.
(b) If Customer and Seller ascertain that Product, or a part thereof,
subject to such a change is readily returnable, Customer or Customer's
agent or contractor shall remove, at Seller's expense, and return such
Product or part to Seller's designated repair or manufacturing
facility and Seller, at Seller's expense, shall implement such changes
and return such changed Product or part to Customer's designated
location. If removal of Product to be returned to Seller for
modification would create an out-of-service condition, Seller shall
make suitable arrangements to provide replacement Product to prevent
an out-of-service condition from occurring.
(c) Any Product maintained in Customer's inventory subject to such a
change shall be returned to Seller's designated repair or
manufacturing facility to implement changes and shall be returned to
Customer's stocking location at Seller's expense. If such changes
create an adverse impact on the Product warranty or Customer's ability
to sell the Product as new, then Seller shall accept at Customer's
option, a Product exchange or return for all unchanged Product in
Customer's inventory.
(d) All change notifications provided by Seller to Customer shall contain
the following information:
(1) Description of change;
(2) Reason for change;
(3) Impact on customer service (i.e., outages, system downtime);
(4) Price impact, if known;
(5) Effective date of changes; and
(6) Implementation schedule of change.
(e) Customer may request the Seller to make changes to or enhance the
Product. Upon Seller's receipt of a written document describing in
detail the changes requested by Customer, Seller shall respond in
writing to Customer within thirty (30) days. If Seller agrees to
undertake such modifications for Customer, the response shall identify
a date for the proposed implementation schedule and cost for such
changes to Product will be provided the Seller. Acceptance and/or
further definition will require a separate mutual agreement.
7. QUALITY ASSURANCE REPORTING
Seller certifies that Seller is ISO 9001 registered. If not ISO 9001
registered at the time of execution of this Agreement, Seller shall obtain
ISO 9001 certification within one year of the date of execution. If Seller
loses ISO 9001 registration or fails to obtain registration within the one
year time limit, thereafter Seller shall implement a field reliability and
delivery performance tracking system, acceptable to Customer, within thirty
(30) days of such loss or failure, unless otherwise agreed. The tracking
system
J-5
shall provide timely internal data collection enabling Seller to arrive at
solutions to delivery, quality and reliability problems related to Product,
and if applicable, to assembly, subassembly or other repairable module
deficiencies as measured against Customer requirements. Seller agrees to
share relevant data with Customer upon request. Seller may elect to protect
such data under the provisions of Section 16. CONFIDENTIAL INFORMATION, of
this Agreement.
8. CUSTOMER'S REMEDY FOR NONCOMPLIANCE
In the event Seller fails to comply with the provisions above, Customer may
destandardize Seller's Product without further notice. This Exhibit,
however, shall not operate in derogation of or limit any rights or remedies
otherwise available to Customer under this Agreement. In addition.
Customer reserves the right to destandardize any Seller Product at any time
for its convenience.
J-6