Exhibit 10.1
AMENDMENT NO. 2
TO THE
LUCENT TECHNOLOGIES/SPRINT SPECTRUM
PROCUREMENT AND SERVICES CONTRACT
Dated as of July 15, 1996
The omitted portions indicated by brackets have been separately filed with
the Securities and Exchange Commission pursuant to a request for
confidential treatment under Rule 24b-2 of the Securities Exchange Act of
1934, as amended.
AMENDMENT NO. 2 dated as of July 15, 1996, to the Procurement and Services
Contract dated as of January 31, 1996, between Sprint Spectrum Holding Company,
L.P., a Delaware limited partnership formerly known as MajorCo L.P., a Delaware
limited partnership, as subsequently assigned (pursuant to that certain
Assignment, Assumption and Amendment No. 1 dated June 21, 1996) to Sprint
Spectrum Equipment Company, L.P., a Delaware limited partnership (and as the
successor in interest of Sprint Spectrum, L.P., the "Owner") and Lucent
Technologies Inc., a Delaware corporation, the full successor to the Network
Systems Group of AT&T Corp., a New York corporation (the "Vendor", and together
with the Owner, the "Parties").
RECITALS:
WHEREAS, the Parties are parties to a certain Procurement and Services
Contract dated as of January 31, 1996 (the "Contract") wherein the Owner agreed
to have the Vendor engineer and construct PCS Systems in the System Areas and
the Vendor, itself or through its Subcontractors, agreed to provide Products and
Services to the Owner in connection with the engineering and construction of PCS
Systems in the System Areas pursuant to and in accordance with the terms of the
Contract.
WHEREAS, the Parties desire to amend the Contract to provide, amongst other
things, for the provision, installation, operation and maintenance by the Vendor
to and for the Owner of a stand-alone Service Control Point/Home Location
Register (SCP/HLR), Service Management System (SMS) and Service Creation
Environment (SCE) (as such terms are defined below).
WHEREAS, the Parties further desire to amend the Contract to provide,
amongst other things, for the provision, installation, operation and maintenance
by the Vendor to and for the Owner of certain Application Software Products,
including AS Software, AS Equipment and AS Services (as such terms are defined
below).
NOW THEREFORE, in consideration of the mutual covenants and conditions set
forth herein, the Owner and the Vendor hereby agree as follows:
1. Definitions. Unless otherwise defined herein, all capitalized terms used
in this Amendment will have the meaning given to such terms in the Contract. For
the purposes of the Contract and this Amendment (i) the term "Equipment" as
defined in the Contract will be deemed (to the extent it is not already clear)
to include the SCP/HLRs and any and all equipment associated with or integral to
the SCP/HLRs, the AM/HLRs as well as the AS Equipment to be delivered and
installed by the Vendor pursuant to the SCP/HLR Specifications, the AM/HLR
Specifications and the AS Statement of Work, as applicable, including, but not
limited to, SMS and SCE, as the case may be, and (ii) the term "Software" as
defined in the Contract will be deemed (to the extent it is not already clear)
to include all software with or integral to the SCP/HLRs, the AM/HLR Products
and the AS Software delivered and installed by the Vendor pursuant to the
SCP/HLR Specifications, the AM/HLR Specifications or the AS Statement of Work,
as the case may be.
2. Agreements.
(a) Pursuant to and in accordance with the terms of the Contract as amended
hereby, the Vendor agrees to provide the Owner with; (i) one mated pair of
stand-alone SCP/HLRs with SMS (two SCPs), (ii) one SCE with eight RTUs, (iii)
one AM/HLR (to the extent not already being provided), (iv) compiled servers and
(v) one copy of "Execution Environment" in accordance with the Specifications in
the Owners Test-bed Laboratory no later than the Completion Dates as set forth
in the HLR Statement of Work. In addition, the Vendor agrees to provide the
Owner three (3) other mated pairs of SCP/HLRs for the Nationwide Network in
accordance with the SCP/HLR Specifications at the HLR Designated Switch Sites no
later than the HLR Completion Dates. As an interim solution only, the Vendor
will provide, at its sole cost and expense, AM/HLRs in accordance with the
AM/HLR Specifications at the AM/HLR Designated Switch Sites.
(b) Pursuant to the terms of the Contract as amended hereby, the Vendor
will supply to the Owner AS Products and AS Services for the Owner's Nationwide
Network pursuant to and in accordance with the AS Statement of Work (as defined
below).
(c) The Vendor will use its best efforts to work with Northern Telecom
Inc., a Delaware corporation ("Nortel") and a party to that certain Procurement
and Services Contract dated as of January 31, 1996, between the Owner and Nortel
(the "Nortel Contract") in order to ensure that the AM/HLRs and SCP/HLRs work
with the Equipment and Software (as defined in the Nortel Contract) provided by
Nortel so that in a timely manner the AM/HLRs and SCP/HLRs Products and Services
provide service to the entire Nationwide Network (including, but not limited to,
the Nortel constructed portion of the Nationwide Network) in accordance with the
AM/HLR Specifications and the SCP/HLR Specifications, as applicable. Nothing
stated herein above to the contrary, the Vendor will not be liable for the
failure of any of the AM/HLRs and/or the SCP/HLRs to properly operate with the
Nortel System (as such term is defined in the Nortel Agreement) where such
failure was directly caused by Nortel's failure to provide timely and accurate
specifications or to make its Equipment accessible and to operate with the
AM/HLRs and/or SCP/HLRs in accordance with and pursuant to the Lucent/Nortel
License Agreement.
(d) The Vendor will use its best efforts to work with Nortel in order to
ensure that the AS Products work with the Equipment and Software (as defined in
the Nortel Contract) provided by Nortel so that in a timely manner the AS
Products and Services provide service to the entire Nationwide Network
(including, but not limited to, the Nortel constructed portion of the Nationwide
Network) in accordance with the AS Statement of Work, as applicable. Nothing
stated herein above to the contrary, the Vendor will not be liable for the
failure of any of the AS Products to properly operate with the Nortel System (as
such term is defined in the Nortel Agreement) where such failure was directly
caused by Nortel's failure to provide timely and accurate specifications or to
make its Equipment accessible and to operate with the AS Products in accordance
with and pursuant to the Lucent/Nortel License Agreement-OAM&P.
(e) Commencing on the date hereof, the Vendor will regularly update
(including the provision of at least monthly written updates) the Owner as to
the Vendor's progress in developing and being able to timely deliver the AM/HLRs
and the SCP/HLRs for both the Test-bed Laboratory and the Nationwide Network.
(f) Notwithstanding anything to the contrary in the Contract, Substantial
Completion of any PCS System within the Initial System, and the testing required
therefor, will expressly require and be conditioned upon the successful
integration and inter-operation (in accordance with the AM/HLR Specifications),
of the other Products within any such PCS System with the then existing AM/HLRs
within the Nationwide Network.
(g) Notwithstanding anything to the contrary, the provisions of subsections
2.3, 2.4, 2.5, 2.6, 2.7, 2.8, 2.9(b), 2.10, 2.25, 2.38, 2.40, 2.41, 6.4, 6.5,
6.7, 6.8, and 7.1 and Section 4 are not applicable to AS Products and AS
Services.
(h) The Parties will mutually agree to and incorporate in the Contract an
Appendix K to Amendment No. 2 as to Application Software Products Acceptance
Procedures and Criteria which will work to provide verification for the
requirements set forth in Appendix G by no later than July 24, 1996.
3. Amendment to Subsection 1.1. Subsection 1.1 of the Contract is hereby
amended as follows:
(a) by adding the following definitions:
"Access Manager HLR (AM/HLR)" means Equipment and Software that
provides the call processing logic which comprises the stand-alone HLR
service. The stand-alone service being that service which contains the
PCS subscriber's or group of PCS subscribers' profile data used to
provide call completion and enhanced services as further described in
Appendix A attached to Amendment No. 2.
"Access Manager Specifications (AM/HLR Specifications)" means the
Access Manager Specifications set forth in Appendix A attached to
Amendment No. 2.
"Adaptations" means any derivative work based on service package
application licensed Software including (i) any work incorporating any
of service package application licensed Software directly, (ii) any
work incorporating any computer program from service package
application licensed Software rewritten in a different computer
language or converted to operate on a different type of CPU, (iii) any
work utilizing a method or concept from service package application
licensed Software that the Owner is obligated to keep in confidence
hereunder or (iv) any work otherwise covered by any of the Vendor's
intellectual property rights in service package application licensed
Software.
"Amendment No. 2" means this Amendment No. 2 to the Contract.
"AS Acceptance Date" means the date or dates on which the AS Products
successfully complete the AS Functional Acceptance Tests or the AS
Final Acceptance Tests, as the case may be.
"AS Acceptance Test(s)" means the collective reference to the AS
Functional Acceptance Tests and the AS Final Acceptance Tests.
"AS Acceptance Test Period" means the applicable period of time in
days that the Vendor has to test and the Owner has to accept certain
AS Products as specified in the AS Statement of Work.
"AS Completion Dates" means the dates and milestones as set forth in
Appendix G that are required to be met by the Vendor for the
successful and timely completion of the AS Statement of Work in
accordance with the AS Statement of Work.
"AS Equipment" means certain third party manufactured or other
Equipment provided to the Owner by the Vendor as necessary for the
operation and integration of the AS Software and the AS Services
pursuant to and in accordance with the AS Statement of Work.
"AS Functional Acceptance" means the Owner's initial acceptance of AS
Products and Services, and, to the extent applicable, the installation
thereof, pursuant to and in accordance with the AS Functional
Acceptance Tests set forth in Appendix K to Amendment No. 2.
"AS Final Acceptance" means the Owner's final acceptance of the
relevant AS Products and installation thereof, pursuant to and in
accordance with the AS Final Acceptance Tests set forth in Appendix K
to Amendment No. 2; provided that in no event can AS Final Acceptance
occur with respect to AS Software and/or AS Services prior to thirty
(30) days after the completion of AS Functional Acceptance Testing.
"AS Functional Acceptance Test" and "AS Functional Acceptance Testing"
means the initial functional tests performed pursuant to and in
accordance with Appendix K to Amendment No. 2.
"AS Final Acceptance Tests" and "AS Final Acceptance Testing" means
the AS Product final acceptance testing as set forth in Appendix K to
Amendment No. 2.
"AS Maintenance and Instruction Manuals" has the meaning ascribed
thereto in subsection 2.22.
"AS/OAM&P Statement of Work" or "AS Statement of Work" means the scope
of work to be performed by the Vendor in accordance with the AS
Statement of Work as set forth in Appendix G to Amendment No. 2.
"AS Operating Manuals" has the meaning ascribed thereto in subsection
2.20.1.
"AS Price" means the aggregate price set forth in Appendix I to
Amendment No. 2 for all of the AS Products and AS Services to be
provided under the Contract and described in the AS Statement of Work.
"AS Products" means the collective reference to AS Software and AS
Equipment.
"AS Product Warranty Period" has the meaning ascribed thereto in
subsection 17.1.1. "AS Services" means those OAM&P Services
(including, but not limited to, Optional AS Services) provided by the
Vendor as part of the provision, installation and continuing operation
and maintenance of the AS Products pursuant to and in accordance with
the AS Statement of Work.
"Application Software ("AS")" or "AS Software," means the software
used for operations and maintenance support as part of the Vendor
provided AS Products and Services described in Appendix G to Amendment
No. 2.
"AS/T&M" means AS Services time and material pricing as set forth in
Appendix I to Amendment No. 2 describing the quantity of hours and
involved and material expenses related to a specific AS Statement of
Work requirement which is done in accordance with and pursuant to the
AS Statement of Work; provided that AS/T&M charges will only be
charged (to the extent applicable) by the Vendor for AS Services
(other than Optional AS Services requested by the Owner in accordance
with Appendix G to Amendment No. 2) requested by the Owner for
performance by the Vendor of applicable AS Services after three (3)
years from the date of Amendment No. 2 to the Contract.
"Computer Program" means any Source-Code or object-code instruction or
group of such instructions for controlling the operation of a CPU.
"Contract Cover Damages" has the meaning ascribed thereto in
subsection 15.4.
"CPU" means a central processing unit.
"Designated Processor" has the meaning of the AS Product for which the
"RTU" License specified in subsection 11.1 is granted.
"Field Acceptance" means the Owner's initial acceptance of SCP/HLR
Products and the installation thereof, pursuant to and in accordance
with the Field Acceptance Tests set forth in Appendix E to Amendment
No. 2.
"Field Acceptance Tests" and "Field Acceptance Testing" means the
SCP/HLR field acceptance testing as set forth in Appendix E to
Amendment No. 2.
"Firmware" means a combination of (i) Equipment and (ii) Software
represented by a pattern of bits contained in such Equipment.
"HLR Completion Dates" means the dates and milestones as set forth in
Appendix E to Amendment No. 2 that are required to be met by the
Vendor for the successful and timely completion of the HLR Statement
of Work.
"HLR Designated Switch Sites" means the Switch Sites within the
Nationwide Network in which the Owner requires the installation of
AM/HLRs within the Denver, Kansas City and Philadelphia System Areas
and the installation of SCP/HLRs within the San Francisco, New York,
Dallas, Denver, Kansas City and Philadelphia System Areas.
"HLR Final Acceptance" means the Owner's final acceptance of SCP/HLR
Products and the installation thereof, pursuant to and in accordance
with the HLR Final Acceptance Tests set forth in Appendix E to
Amendment No. 2; provided that in no event can HLR Final Acceptance
occur with respect to any SCP/HLR Product prior to thirty (30) days
after the completion of Field Acceptance Testing for such SCP/HLR
Product(s).
"HLR Final Acceptance Tests" and "HLR Final Acceptance Testing" means
the SCP/HLR final acceptance testing as set forth in Appendix E to
Amendment No. 2.
"HLR Statement of Work" means the statement of work applicable to the
AM/HLRs and the SCP/HLRs as set forth in Appendix E to Amendment No.
2.
"Lucent/Nortel License Agreement" means the Interface License
Agreement between the Vendor and Nortel dated as of June 14, 1996
attached as Appendix D1 to Amendment No. 2.
"Lucent/Nortel License Agreement-OAM&P" means the OAM&P Interface
License Agreement between the Vendor and Nortel dated as of July __,
1996 attached as Appendix D2 to Amendment No. 2.
"Nortel" has the meaning ascribed thereto in Paragraph 2(c) of
Amendment No. 2.
"Nortel Contract" has the meaning ascribed thereto in Paragraph 2(c)
of Amendment No. 2.
"OAM&P" means Operations Administration Maintenance & Provisioning as
described in Appendix G to Amendment No. 2.
"Optional AS Services" means those AS services classified as optional,
as set forth in Appendix G to Amendment No. 2, which are only provided
to the Owner upon the request of the Owner.
"SCE" means the Service Creation Environment Equipment and Software as
further described in Appendix B to Amendment No. 2.
"SCP/HLR" means the Equipment and Software that provides the call
processing logic which comprises the stand-alone HLR service which
contains the PCS subscriber's or group of PCS subscriber's profile
data used to provide call completion and enhanced services and further
described in Appendix B to Amendment No. 2.
"SCP/HLR Hardware" means SCP/HLR equipment and platform software as
set forth in Appendix B to Amendment No. 2.
"SCP/HLR Price" means the aggregate price for all of the SCP/HLRs as
set forth on Appendix F to Amendment No. 2.
"SCP/HLR Products" means the collective reference to SCP/HLR Hardware,
and SCP/HLR Software, SMSs, SCEs and RTUs.
"SCP/HLR Specifications" means the SCP/HLR specifications as set forth
in Appendix B to Amendment No. 2 and including, but not limited to,
the SCE and the SMS.
"SCP/HLR Software" means the SCP/HLR Software as more fully described
in Appendix B to Amendment No. 2.
"SMS" means the Service Management System Equipment and Software as
further described in Appendix B to Amendment No. 2.
(b) by deleting the definition of "PCS Products" as such definition is set
forth in the Contract and replacing it in its entirety with the following
definition:
"'PCS Products' means the Vendor's PCS Equipment and Software, as
offered from time to time in the Customer Price Guide; provided that
for the purposes of this Contract, PCS Products will always (subject
to subsection 10.1) include at least (i) the SCP/HLRs, (ii) the
SCP/HLR Products, (iii) the AM/HLRs (to the extent not already PCS
Products), (iv) SMS, (v) SCE, (vi) the AS Products and (vii) those
other Items listed on the Vendor's Customer Price Guide as of the
Effective Date. As the context requires and notwithstanding the above,
the term PCS Products includes all Vendor manufactured Products
provided to the Owner in connection with its obligations pursuant to
the terms of this Contract, but excludes Items furnished solely as
part of Facilities Preparation Services not otherwise integral to the
operation or maintenance of the PCS Items set forth on the Customer
Price Guide, including Non-Essential Equipment." and
(c) by deleting the definition of "Specifications" as such definition is
set forth in the Contract and replacing it in its entirety with the following
definition:
"'Specifications' means the collective reference to the
specifications and performance standards of the design, Facilities
Preparation Services, Engineering, Products, Installation and Services
contemplated by this Contract and includes any Expansions, amendments,
modifications and/or other revisions thereto made in accordance with
the terms of this Contract and as more fully set forth in Exhibits C,
D, E and F and the AM/HLR Specifications, the SCP/HLR Specifications,
the HLR Statement of Work, the AS Statement of Work or as otherwise
determined hereunder pursuant to the terms of this Contract; provided
that, except as otherwise provided in or determined pursuant to this
Contract or as otherwise mutually agreed between the Parties, the
applicable Specifications for an Item will be the Vendor's or other
manufacturer's standard technical specifications for such Item, as
applicable, unless the Owner will have specifically not agreed with
such Vendor or other manufacturer specification; and provided further,
that with respect to Facilities Preparation Services, design,
engineering, Products, Installation and Services for which
specifications and performance standards are not provided and listed
in such Exhibits (such Exhibits including, but not limited to, the
AM/HLR Specifications, SCP/HLR Specifications, the HLR Statement of
Work and the AS Statement of Work), "Specifications" references to
performance, functionality and fitness for the intended purpose in
which such design, Facilities, Preparation Services, Engineering,
Products, Installation and Services are employed."
4. Amendment to Subsection 2.2. Subsection 2.2 is hereby amended to add the
following subsection 2.2.1 after subsection 2.2:
"2.2.1 AS Products and AS Services Additional Coverage. Where the
Owner wishes to purchase AS Products or AS Services for use and/or
application in a country outside the United States but within North
America including any territory of the United States not otherwise
covered by the definition of the "United States" as set forth herein,
the Owner and the Vendor will, in good faith, negotiate a separate
agreement for such purchase upon substantially all of the same terms
as those set forth in this Contract, with only such modifications as
may reasonably be appropriate to reflect the international nature of
such transaction and to assure protection of the Vendor's intellectual
property applicable to such AS Products and AS Services."
5. Amendment to Subsection 2.5. Subsection 2.5 is hereby amended to add the
following subsection 2.5(c) after subsection 2.5(b):
"(c) The Vendor will supply (and Exhibit I will be deemed to include),
at no cost to the Owner, (i) one mated pair SCP/HLRs with one SMS,
(ii) one SCE with eight RTU's, (iii) one AM/HLR, (iv) one source code
compiler and (v) one copy of "Execution Environment" all in accordance
with and pursuant to the Specifications for the Test-bed /Laboratory
no later than the dates specified in the HLR Statement of Work. All
provisions of subsections 2.5(a) and 2.5(b) above will apply similarly
to the Products listed in clauses (i) through (v) provided by the
Vendor pursuant to this subsection 2.5(c). Nothing in this subsection
2.5(c) will be deemed to release or accelerate the Project Milestones
and/or delivery requirements set forth in subsections 2.5(a) and
2.5(b) above."
6. Amendment to Subsection 2.20. Subsection 2.20 is hereby is amended to
add the following subsection 2.20.1 after subsection 2.20:
"2.20.1 AS Products and Services Operating Manuals. The Vendor will
provide the Owner operating and instruction manuals for the AS
Products and AS Services (the "AS Operating Manuals") in accordance
with this subsection as soon as they are reasonably available but in
no event later than the dates and times as set forth in Appendix G to
Amendment No. 2. The Vendor will provide the Owner with the quantity
of AS Operating Manuals as set forth in the AS Statement of Work. The
AS Operating Manuals will be prepared in accordance with the AS
Statement of Work and in sufficient detail to accurately describe the
operations and instructions for the AS Products and all of its
component parts and will recommend procedures for operation and
maintenance."
7. Amendment to Subsection 2.22. Subsection 2.22 is hereby amended to add
the following paragraph after the last unnumbered paragraph in subsection 2.22:
"In addition to, and without limiting the requirements set forth in
clauses (a) through (d) of this subsection 2.22, the AS Operating
Manuals for the AS Products and Services will be submitted to the
Owner in hard-copy volume format if so requested by the Owner. In
addition to any of the Owner's other rights and remedies, the Owner
will have the right to reject such AS Operating Manuals if in its
reasonable judgment any of them do not meet the standards set forth in
this Contract."
8. Amendment to Subsection 2.23. Subsection 2.23 is hereby amended as
follows:
(a) by deleting the text of subsection 2.23 immediately preceding clause
(a) and substituting in lieu thereof the following:
"2.23 Training. As more fully described below, starting at least one
hundred and eighty (180) days prior to the Substantial Completion of
the Initial PCS System, the Vendor must provide to the Owner a
practical and participatory and, where feasible, on-site training
program with respect to the System, which program will include
technical education (collectively, the "Training"). The Vendor will
provide, upon the Owner's prior written request and at the time or
times mutually agreed in good faith by the Owner during the Initial
Term of this Contract, (i) not less than a minimum of twelve thousand
fifty (12,050) man days of Training and Training materials for the
Owner's personnel, at no cost to the Owner plus (ii) an additional one
thousand (1,000) man days of Training at no cost to the Owner for the
SCP/HLRs and/or AM/HLRs; provided that the Vendor will be required to
commence provision of SCP/HLR training no later than October 1, 1996.
The Owner will be responsible for the travel and living expenses of
personnel receiving Training. Such Training must be kept current to
encompass the latest Software and Equipment, or any other Software
Revision level and/or Equipment Revision Level directed by the Owner
pursuant to the terms of this Contract. Subject to the foregoing,
Training course size, content and material will be designed and agreed
to by mutual consent between the Parties. The Vendor will conduct
classes for the subjects described below:" and
(b) by inserting the following clauses (vii) and (viii) after clause (vi)
of subsection 2.23 (b) and renumbering the following clauses accordingly:
"(vii) Stand-alone SCP/HLR operations;
(viii) OAM&P and AS Products operations;"
9. Amendment to Subsection 6.1. Subsection 6.1 is hereby amended to add the
following sentence to the end of subsection 6.1 as such subsection is identified
in the Contract:
"Notwithstanding the foregoing, the aforesaid credits may not be
applied to the purchase of any SCP/HLRs and/or any AS Products or
Services."
10. Amendment to Subsection 6.3.to Subsection 6.3
(a) Subsection 6.3 is hereby amended by deleting the first sentence of such
subsection and replacing in lieu thereof the following:
"Except with respect to Facilities Preparation Services, RF
Engineering, SCP/HLR Products and AS Products and Services as set
forth below, an invoice may be submitted to the Owner only after
shipment of a Product or performance of a Service." and
(b) Clause (c) of subsection 6.3 is hereby amended by adding immediately
prior to the semicolon at the end of such clause (c) the following:
"; provided that the Owner will not be obligated to make any such
Final Acceptance payment to the Vendor for the Initial PCS System
only, until and unless the SCP/HLRs to be delivered and installed in
accordance with the SCP/HLR Specifications are so delivered and
installed and operating in accordance with such SCP/HLR
Specifications."
(c) Subsection 6.3 is hereby amended by inserting the following subsections
6.3.2 and 6.3.3:
"6.3.2 SCP/HLR Payments. Notwithstanding anything contained in this
Section 6 to the contrary, any invoice for SCP/HLR Products delivered
and/or installed by the Vendor will be payable as follows: (a) (i)
[_______________] of the amount of any invoice for SCP/HLR Hardware
will be payable within [_______________] following the installation by
the Vendor of such SCP/HLR Hardware at the appropriate HLR Designated
Switch Sites, (ii) [_______________] of the amount of any invoice for
SCP/HLR Hardware will be payable within [______________] following the
Owner's Field Acceptance of such installed SCP/HLR Hardware in
accordance with the SCP/HLR Specifications and (iii) the remaining
[_______________] of the amount of any invoice for SCP/HLR Hardware
will be payable within [_______________] of the Owner's Final
Acceptance of such installed SCP/HLR Hardware in accordance with the
SCP/HLR Specifications; and (b) (i) [_______________] of the amount of
any invoice for SCP/HLR Software will be payable within
[_______________] of the Owner's Field Acceptance in accordance with
the SCP/HLR Specifications and (ii) the remaining [__________________]
of the amount of any invoice for SCP/HLR Software will be payable
within [_______________] of the Owner's HLR Final Acceptance in
accordance with the SCP/HLR Specifications.
6.3.3. AS Products Payments. (a) Notwithstanding anything contained in
this Section 6 to the contrary, any invoice for AS Software delivered
and/or installed by the Vendor will be payable by the Owner as
follows: (i) [___________________] of the total price for any AS
Software order for such AS Software will be payable within
[______________] of the order placement for such AS Software by the
Owner, (ii) [_________________] of the amount of any invoice for
ordered AS Software will be payable within [______________] of the
time of delivery by the Vendor of such AS Software, (iii)
[________________] of the amount of any invoice for ordered AS
Software will be payable within [______________] of AS Functional
Acceptance of such AS Software, and (iv) the remaining
[________________] of the amount of any invoice for ordered AS
Software will be payable within [_______________] of AS Final
Acceptance of such AS Software.
(b) The Vendor may invoice the Owner for [_______________] of the
passed-through cost (without mark-ups, add-ons or charges of any kind
(except as explicitly provided in Appendix I)) of any third party
manufactured AS Equipment supplied by the Vendor for the AS Software
for the AS Software System in accordance with the AS Statement of Work
and the Owner will be required to pay any such invoice for third-party
AS Equipment within [_______________] of the Owner's receipt and
reasonable acceptance thereof. The Vendor may invoice the Owner for AS
Services (if applicable) pursuant to the first sentence of subsection
6.3.1 of the Contract. AS Software Annual Maintenance Services will be
provided by the Vendor pursuant to the Annual Application Software
Maintenance Services Fees as set forth on Appendix I to Amendment No.
2 and such fees will be invoiced to the Owner with the Annual Software
Release Maintenance Fees in accordance with the terms of the
Contract."
11. Amendment to Section 9. Section 9 is hereby amended by inserting the
following subsection 9.7 after subsection 9.6:
"9.7 AS Acceptance Testing and Acceptance. (a) After installation of
AS Software, or any part thereof as set forth in Appendix K to
Amendment No. 2, the Owner will carry out Functional Acceptance Tests
in accordance with the provisions of Appendix K to Amendment No. 2,
testing the compliance of the AS Software with the AS Statement of
Work. The Owner will start the AS Functional Acceptance Tests no later
than seven (7) days after installation of such AS Software and
complete the AS Functional Acceptance Tests no later than fourteen
(14) days after installation of such AS Software.
(b) After the AS Software has successfully passed the Functional
Acceptance Tests, the Owner will commence the AS Final Acceptance Test
in accordance with the provisions of Appendix K to Amendment No. 2.
The duration of the AS Final Acceptance Test shall be thirty (30) days
after successful completion of the AS Functional Acceptance Test.
(c) If the Owner fails to complete either the AS Functional Acceptance
Tests or the Final Acceptance Test within the time periods set forth
in subsections 9.7(a) and 9.7(b), the AS Software shall be deemed to
have met the Acceptance Test criteria on the last day of the time
period allotted for the applicable AS Acceptance Test.
(d) The costs and expenses of the AS Acceptance Tests will be borne by
the Owner. Upon request of the Owner, the Vendor will provide
reasonable support to the Owner during the AS Functional Acceptance
Tests and the AS Final Acceptance Tests.
(e) If the AS Acceptance Tests show that any of the AS Software
complies with the AS Statement of Work, such AS Software will be
accepted by the Owner by confirming the results in a written report.
(f) If any AS Acceptance Test is not satisfied, the Owner will (i) in
writing, notify the Vendor of such failure, and (ii) the Vendor will
promptly correct whatever Defects or Deficiencies caused such AS
Acceptance Test not to be satisfied. After such correction, the Vendor
must (i) repeat at its sole cost and expense the failed AS Acceptance
Tests and as many other AS Acceptance Tests as are necessary to ensure
in the reasonable opinion of the Owner that such correction made by
the Vendor would not have affected the outcome of such other AS
Acceptance Tests, and (ii) in writing, notify the Owner as to what
correction was made and what AS Acceptance Tests were repeated.
Nothing stated herein to the contrary will in any way limit the
Owner's right to liquidated damages pursuant to subsection 15.8 or
other remedies under this Contract in the event the Vendor fails to
deliver AS Products in accordance with the requirements of Appendix G
to Amendment No. 2 on the dates originally scheduled for such
deliveries.
(g) Minor Defects and shortcomings not affecting the operational use
of any part of the AS Software shall not give rise to withholding the
acceptance provided that the Vendor undertakes to remedy such Defects
and shortcomings as soon as reasonably possible, pursuant to the
procedures described in Appendix K to Amendment No. 2."
12. Amendment to Section 12. Section 12 is hereby amended by inserting the
following subsections 12.5 and 12.6 after subsection 12.4.:
"12.5 Right to Modify SCP/HLR Software. The Vendor grants to the Owner
a personal, non-transferable, non-exclusive and royalty-free license
to modify the following component layers of the SCP/HLR Software
provided under this Amendment No. 2 to run on the SCP/HLR Hardware,
solely for use by the Owner in its business of providing
telecommunications services (the names for the component layers set
forth below being used in conformity with the conventions displayed on
the graphic element of Appendix B to Amendment No. 2):
(i) Service Customization Layer
(ii) Application Oriented Layer
(iii) Capability Creation Layer
(iv) Platform Enhancement Layer
Such right to modify includes the right for the Owner, its
employees, and agents to modify and copy the Source Code of the
above named component layers (including, but not limited to,
access to the "SCP Action Execution Library" (including IS41 Rev.
B and IS41 Rev. C)) of the SCP/HLR Software provided solely for
the purposes of maintaining and enhancing or supplementing the
object code versions of such provided Software. The Owner agrees
to use the modifications to Licensed Software made in the
exercise of the license granted in this subsection 12.5 in
accordance with its licensed rights in the SCP/HLR Software
hereunder, except as otherwise provided in this subsection 12.5.
The license to modify set forth in this subsection 12.5 will be
royalty-free and without fee with respect to code implementing
features or capabilities provided within the above-enumerated
layers of releases or versions of the Software which are provided
by the Vendor in accordance with or pursuant to the Annual
Maintenance Fee.
Intellectual property rights in modifications to the SCP/HLR
Software by the Owner, its employers or agents for hire in the
exercise of a right of modification granted in this subsection
12.5 will vest in the Owner, subject to the Vendor's intellectual
property rights in the Vendor's proprietary "SLL" programming
language and compiler and in the Vendor's unmodified SCP/HLR
Licensed Software. The unmodified Computer Programs provided by
the Vendor, including, but not limited to, the SCP/HLR Software,
will remain the intellectual property of the Vendor; and nothing
in this subsection 12.5 will be deemed to confer upon the Owner
ownership in any aspect of the unmodified SCP/HLR Software. Nor
will anything herein be deemed to confer upon the Owner any right
to license or sublicense use of the unmodified SCP/HLR Software,
or any part thereof, to third persons. The Vendor will be
entitled to license any right to use and to sublicense
modifications made by or for the Owner on terms mutually agreed
between the Owner and the Vendor, unless the Owner unilaterally
designates, in writing, a specific modification or modifications
to be restricted from such licensing for a specific period of
time.
The Vendor agrees to provide the Owner Software tools,
documentation, services and training requested by the Owner which
is reasonably necessary to the exercise of the Owner's rights of
modification granted in this subsection 12.5, upon mutually
agreed prices, terms and conditions. The Vendor will endeavor in
subsequent Software Upgrades, Software Enhancements, Combined
Releases and other versions of its SCP/HLR Software to
accommodate the Owner's need to preserve compatibility between
the Owner's modifications and such Vendor-provided programs.
Nothing contained in this subsection 12.5 to the contrary
authorizes the Owner to engage any entity or person as an agent
for hire to modify the Vendor's SCP/HLR Software which entity or
person (i) is substantially and directly engaged in competition
with the Vendor in manufacturing or developing PCS systems; or
(ii) does not agree in writing to recognize and respect the
Vendor's intellectual property rights in such Licensed Software
(including, but not limited to, the Vendor's rights stated
herein) and to maintain the secrecy of information proprietary to
the Vendor regarding the structure and contents of the Vendor's
computer programs upon terms comparable to the Owner's
undertakings to maintain the confidentiality of the Vendor's
Proprietary Information."
12.6 Right to Modify AS Software. The Owner may add to, delete
from, or modify AS Software modules or menus, if available from
the Vendor. Such changes or modifications, however extensive
shall not affect the Vendor's title to the AS Software."
13. Amendment to Section 15. Section 15 of the Contract is hereby amended
by inserting the following subsections 15.4, 15.5, 15.6, 15.7 and 15.8 after
subsection 15.3:
"15.4 SCP/HLR Delay. (a) Failure of the Vendor to properly
deliver, install and test any of the SCP/HLR Products at the then
existing HLR Designated Switch Sites in accordance with the
SCP/HLR Specifications and the milestones set forth therein
applicable to SCP/HLR Products by the HLR Completion Dates will
result in the Vendor being liable to pay to the Owner contract
cover damages (the "Contract Cover Damages") equal to any and all
reasonable and actual increased costs or expenses including, but
not limited to, increased costs or expenses associated with
network modifications, extra equipment, software or training or
re-engineering incurred by the Owner due to the Vendor's failure
to deliver, install and test the SCP/HLR Products by the HLR
Completion Dates in accordance with SCP/HLR Specifications and
the HLR Statement of Work.
15.5 AM/HLR Interim Solution. In order to meet the Owner's
projected service date the Vendor will provide to the Owner, at
the Vendor's own sole cost and expense, and at the Owner's then
existing HLR Designated Switch Sites, AM/HLRs pursuant to and in
accordance with the AM/HLR Specifications and the HLR Statement
of Work as an interim solution so that the Nationwide Network may
operate in accordance with the Specifications; provided that the
Vendor will continue to use its best efforts, at its sole cost
and expense (but with all reasonable cooperation from the Owner),
to replace such interim AM/HLR solution with a comprehensive
SCP/HLR system in accordance with the SCP/HLR Specifications and
the HLR Statement of Work.
15.6 AM/HLR Redeployment. After acceptance of the SCP/HLRs, the
Owner will, at the Owner's sole discretion, have the Vendor
redeploy the AM/HLRs as Access Managers to other sites within the
System at the Vendor's sole cost and expense for any and all
costs associated with such redeployment, including removal,
transportation, and delivery but not installation or the cost of
such Access Manager; provided that if the Access Manager is not
moved to another location but redeployed in the same location in
a separate function or for a separate MSC, the Owner will only be
liable for the cost of the Access Manager and the Vendor will be
responsible for all other costs. All payments, if any, for
redeployed AM/HLRs will be made by the Owner pursuant to
subsection 6.3(a)-(d); provided that in the event that any such
redeployment is to a PCS System which has already achieved
Substantial Completion then the payment terms of subsection 6.3.1
will apply.
15.7 SCP/HLR Delay Termination. If after thirty (30) days after
the HLR Completion Dates the Vendor is still unable to
satisfactorily complete the Final Acceptance Tests applicable to
the SCP/HLRs and/or any of the SCP/HLR Products to be delivered
in accordance with the terms of this Contract (including, but not
limited to, the SCP/HLR Specifications) the Owner will have the
right (in addition to any rights under subsection 15.4 above),
but not the obligation, to terminate the Contract only with
respect to the SCP/HLR Products and will have the right to seek
from the Vendor reimbursement for any of its reasonable and
actual increased costs associated with acquiring reasonable
replacement SCP/HLR Products from a third-party supplier. The
remedies set forth in subsections 15.4, 15.5 and 15.7 will be the
Owner's sole and exclusive remedies in the event the Owner
chooses to terminate the delivery of SCP/HLR Products pursuant to
the terms of this subsection 15.7.
15.8 AS Software Delay. With respect to the AS Products and
Services, in the event the Vendor fails to deliver any such AS
Statement of Work compliant AS Products and/or AS Services within
seven (7) days (except as provided below, the "AS Delay Grace
Period") of the applicable dates for delivery set forth in
Appendix G to Amendment No. 2, the Vendor will (to the extent the
Owner will not have cancelled the applicable order therefor
pursuant to the terms of the Contract) credit to the Owner (in
the form of purchase credits for any Vendor Products including,
but not limited to, AS Products) as liquidated damages for such
late performance for each of the first [_______________] beyond
such AS Delay Grace Period, an amount equal to [________________]
per day (for such [________________] period) of the total price
of such undelivered or unsatisfactory AS Products or AS Services;
provided that upon the timely AS Functional Acceptance (on the
dates originally scheduled for such AS Functional Acceptance) of
any such AS Products and/or AS Services, any delay penalties
accrued therefor shall be forgiven; and provided further for AS
Software "release 0.1" (as defined in Appendix G) the AS Delay
Grace Period will be [____________] from the delivery dates set
forth in Appendix G for the delivery of such AS Software release
0.1."
14. Amendment to Subsection 17.1. Subsection 17.1 is hereby amended to add
the following subsection 17.1.1 after subsection 17.1:
"17.1.1 AS Products Warranty. Notwithstanding anything stated
herein to the contrary, for the AS Products provided hereunder,
the Vendor warrants that, from the date of AS Final Acceptance of
the installation and Engineering thereof, the AS Products will
materially conform with and perform the functions set forth in
the AS Statement of Work, to the extent applicable, and will be
free from Defects and Deficiencies for a warranty period (each as
applicable, an "AS Product Warranty Period") of (i) in the case
of AS Software, ninety (90) days and (ii) in the case of AS
Equipment, one (1) year. In the case of AS Software, the AS
Product Warranty Period applicable to any such AS Software will
be automatically extended for a new ninety (90) day period
commencing on the date of the completion of any applicable
Software Upgrade and/or Software Enhancement upon, and
simultaneous with, any Software Upgrade and/or Software
Enhancement issued pursuant to the terms of Section 12. To the
extent the Owner orders additional AS Products not otherwise
covered pursuant to Appendix G to Amendment No. 2 from the Vendor
in accordance with the terms of this Contract, any such AS
Products so ordered by the Owner and delivered and installed by
the Vendor or its Subcontractors will be warranted to the same
extent as set forth above, from the earlier of (i) the date the
Owner puts such additional AS Products into In Revenue Service,
(ii) the date of the Owner's acceptance of such additional AS
Products and (iii) thirty (30) days after the Vendor completes
the installation of such additional AS Products."
15. Amendment to Subsection 17.7. Subsection 17.7 is hereby amended by
deleting the "or" at the end of clause or subsection 17.7.5, and placing an "or"
at the very end of clause or subsection 17.7.6 and by inserting the following
new clause or subsection 17.7.7:
"17.7.7 Owner modifications to SCP/HLR Software (including the
Platform Software in SCP/HLR Hardware) done pursuant to
subsection 12.5 and/or Owner modifications to AS Software done
pursuant to subsection 12.6."
16. Amendment to Subsection 20.2. Subsection 20.2 is hereby amended by
adding in the second line thereof after "15.3," and before "17.4," "15.4, 15.5,
15.6, 15.7, 15.8".
17. Amendment to Subsection 22.2. Subsection 22.2 is hereby amended by
adding subsection 22.3 after subsection 22.2:
"22.3 AS Products Risk of Loss. Risk of loss as to AS Products
will pass to the Owner upon the delivery to the Owner's
designated location."
18. Cross References. All references in the Contract to Section and
subsection numbers of the Contract will be amended accordingly to reflect the
changes made by this Amendment.
19. NO OTHER AMENDMENTS. EXCEPT AS EXPRESSLY AMENDED, MODIFIED AND
SUPPLEMENTED HEREBY, THE PROVISIONS OF THE CONTRACT ARE AND WILL REMAIN IN FULL
FORCE AND EFFECT AND NOTHING IN THIS AMENDMENT NO. 2 WILL BE CONSTRUED AS A
WAIVER OF ANY OF THE RIGHTS OR OBLIGATIONS OF THE PARTIES UNDER THE CONTRACT.
20. Governing Law. This Amendment No. 2 will be construed in accordance
with and governed by the laws of the State of Missouri without regards to the
laws and principles thereof which would direct the application of the laws of
another jurisdiction.
21. Descriptive Headings. Descriptive headings are for convenience only and
will not control or affect the meaning or construction of any provisions of this
Amendment No. 2.
22. Counterparts. This Amendment No. 2 may be executed in any number of
identical counterparts, each of which will constitute an original but all of
which when taken together will constitute but one contract.
* * * * *
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be signed by their duly authorized representatives on the date
first above written.
SPRINT SPECTRUM EQUIPMENT COMPANY, L.P.,
as the Owner
By: /s/ Arthur A. Kurtze
Name: Arthur A. Kurtze
Title: Chief Operating Officer
LUCENT TECHNOLOGIES INC.,
as the Vendor
By: /s/ James P. Goodman
Name: James P. Goodman
Title: Sales Vice President
APPENDIX A
AM/HLR Description and Specifications
APPENDIX B
SCP/HLR Description and Specifications
APPENDIX C
[Intentionally Omitted]
APPENDIX D1
Lucent/Nortel License Agreement-HLR
APPENDIX D2
Lucent/Nortel License Agreement-OAM&P
APPENDIX E
HLR Statement of Work
APPENDIX F
SCP/HLR Prices
APPENDIX G
AS/OAM&P Statement of Work
APPENDIX H
[Intentionally Omitted]
APPENDIX I
AS/OAM&P Prices
APPENDIX J
[Intentionally Omitted]
APPENDIX K
Application Software Products Acceptance Procedures and Criteria
APPLICATIONS SOFTWARE ACCEPTANCE:
To be delivered pursuant to mutual agreement of the Parties pursuant to the
terms of Amendment No. 2.
APPENDIX L
Application Software Products Maintenance and Support Services
6.1 GENERAL
The provisions of this Appendix L apply to the furnishing of maintenance AS
Services by the Vendor for AS Software furnished by the Vendor. This Appendix L
in no way limits, modifies or otherwise amends the Vendor's obligations as to
maintenance Services for other Products pursuant to the terms of the Contract.
6.2 DEFINITIONS
For the purposes of this Appendix L, the following terms shall have the
meanings indicated below:
(a) "AS Severity Level" means the priority status of an AS Software
condition that is indicative of the severity of the reported condition as set
forth in the table below.
(b) "Corrective Maintenance" means maintenance performed or required to be
performed by the Vendor upon written or oral request of the Owner to correct a
Defect in the AS Software.
(c) "Maintenance Updates", to be provided from time to time by the Vendor
but in any event, at least monthly, consist of at least the following:
(i) revised object code as appropriate for AS Software in the
same machine-readable storage media form as the original AS
Software; and
(ii) new or modified AS Software documentation or information
regarding such documentation.
(d) "Problem Resolution Management" means the procedures and actions
performed or required to be performed by the Vendor upon written or oral request
of the Owner to act in an ombudsman-type capacity and investigate and manage the
resolution of a reported condition so that the Owner has a single interface that
is engaged in pursuing a problem through to its resolution. This includes
Corrective Maintenance in the case of a reported Defect in AS Software covered
by the Contract.
(e) "Response Time" means the maximum period of time, in hours, within
which the Vendor will acknowledge the Owner's written or oral notification of a
Defect, make an initial assignment of the appropriate AS Severity Level and
initiate corrective action and escalation procedures.
6.3 SERVICE DESCRIPTION
Maintenance AS Services for AS Software include, but are not limited to,
fixed-term Service and AS/T&M Service. Unless otherwise agreed by Vendor in
writing, maintenance AS Service is only available for the then present generic
and the then immediately preceding generic.
(a) Fixed-term maintenance AS Service consists of procedures, as determined
by the Vendor for particular AS Software and for fixed periods, to keep the AS
Software operating consistent with the AS Statement of Work. Such AS Services
include diagnostic Service using on-site or remote techniques, as appropriate,
to analyze a problem and prescribe remedial action, and mandatory escalation
procedures to provide successively higher levels of expertise. Such AS Services
do not include support for administrative, operational, or keyboard command
questions. Fixed-term maintenance AS Services will be rendered primarily during
the Service hours reasonably requested by the Owners.
(b) Each order for fixed-term maintenance AS Services shall be for a
minimum of one (1) year and shall commence on the date set forth in the Owner's
order therefor. The Vendor shall give written notice of the impending
termination of an order at least sixty (60) days prior to the date for such
renewal, at which time the Owner may consider renewal, in its sole and absolute
discretion.
(c) AS/T&M Service includes, on a call-by-call basis and on the basis of
the Vendor's AS Services personnel availability, technical assistance using
on-site or remote techniques, as appropriate, to analyze a problem, prescribe
remedial action and, if ordered, make necessary repairs to AS Products.
6.4 ELIGIBILITY FOR MAINTENANCE SERVICE
AS Software installed by the Vendor is eligible for maintenance Service
without initial evaluation by the Vendor provided the Service commences not
later than the end of the Warranty Period.
In all other situations, the AS Software shall not be eligible for
maintenance Service until the Vendor, at its option, has made an initial
evaluation to determine whether modifications are required to make the AS
Software eligible. If, in the Vendor's reasonable judgment, modifications are
required for this purpose, the Vendor will provide an estimate to the Owner of
the costs of making such modifications. The Owner will be invoiced at Vendor's
then standard reasonable rate for such evaluation and any such modifications
furnished by the Vendor and accepted by the Owner.
6.5 PERIODS OF AS MAINTENANCE SERVICE
AS Maintenance Service will be provided twenty-four (24) hours a day, three
hundred sixty-five (365) days a year, unless otherwise agreed by the Parties in
writing.
6.6 AS MAINTENANCE SERVICE EXCLUSIONS
Unless expressly agreed by Vendor, maintenance Services to be provided
under this Appendix L will not include:
(a) Work external to the AS Software, whether or not on the AS Software's
Designated Processor;
(b) Making AS Specification changes or performing Services connected with
relocation of the AS Software;
(c) Such Service which is impractical for Vendor to render because of
changes not authorized by Vendor in the Designated Processor, hardware
configuration or Vendor's AS Software; and
(d) Modification or replacement of AS Software, repair of damage, or
increase in Service time caused by:
(i) Failure to provide a reasonably suitable operational
environment with all facilities prescribed by the applicable
manual including, but not limited to, the failure to provide, or
the failure of, reasonable electrical power, air conditioning, or
humidity control;
(ii) The use of the AS Software in a manner not in accordance
with the AS Statement of Work (except as otherwise authorized by
the Vendor);
(iii) Accident; disaster, which shall include, but not be limited
to, fire, flood, water, wind, and lightning (but only to the
extent such AS Software should not have withstood such conditions
pursuant to and in accordance with the AS Statement of Work);
transportation not provided by or arranged by Vendor; neglect, or
misuse by anyone other than Vendor, its employees, agents, or
subcontractors;
(iv) Modifications, maintenance, or repairs performed by other
than Vendor, its employees, agents, or subcontractors;
(v) The conversion from one Vendor AS Software release to
another, or the failure of Owner to reasonably apply previously
applicable modifications and corrections furnished by the Vendor
(excluding any items in Appendix G); and
(vi) The use of the AS Software in combination with other
Software not furnished by Vendor, except where such combinations
are specified in Vendor's Specifications for the AS Software or
are approved by Vendor in writing; provided that any Nortel
Software (as defined in the Nortel Agreement) shall be deemed to
be authorized by the Vendor for any such combinations to the
extent such Nortel Software needs to interoperate or otherwise
integrate with the AS Software in order for the entire Nationwide
Network to operate with the AS Software.
At the request and acceptance of the Owner, the Vendor will perform any of
the following Services at the Vendor's reasonable rates and terms in effect at
the time of such request.
6.7 MAINTENANCE OF RELOCATED AS SOFTWARE
AS Software Serviced under the Contract which is moved to another
Designated Processor within the Territory shall continue to be covered under
this Agreement provided that the Vendor has received fifteen (15) days prior
written notice of such relocation and, if requested by Vendor, the Parties have
renegotiated the objective response time selected by the Owner in the order. The
Vendor reserves the right to supervise the unloading of the AS Software from the
original processor and to inspect and reinstall the AS Software at the new
installation location; provided that in such event, the Vendor must exercise any
such rights, promptly and in a workmanlike manner. If the Owner elects to
utilize the Vendor's services hereunder, the Owner shall be charged for all such
work performed by Vendor at the Vendor's then reasonable rates.
6.8 SCOPE OF AS SOFTWARE MAINTENANCE AS SERVICES
(a) All Designated Processors covered for maintenance AS Services shall be
listed in the order along with their physical location and serial numbers. The
Owner may add or delete any Designated Processor upon the Owner's written notice
to the Vendor. Unless otherwise agreed by the Vendor in writing, maintenance AS
Services will be provided to support only the then present generic and
immediately preceding generic of each AS Software System for which such Services
are offered.
(b) The Vendor shall provide a telephone contact point at which the Owner
can notify the Vendor of the need for AS Software maintenance AS Services
twenty-four (24) hours per day, seven (7) days per week. In accordance with
provisions of the order a trained, knowledgeable, technically qualified Vendor
representative will promptly respond to the Owner. Such response will serve to
acknowledge receipt of notification and to obtain from the Owner a verbal
description of the nature of the need for maintenance AS Services. Such
representative shall analyze the problem, using data provided by the Owner, and
provide the Owner with timely program corrections to either fix the problem or
provide a procedure for working around the problem. If a work-around is provided
by the Vendor, the Vendor shall, on a best efforts basis, subsequently (but
promptly) provide a permanent solution to such problem.
(c) The Vendor shall, within a reasonable period of time after making any
correction to the AS Software as described herein, provide any necessary
revisions to the Vendor documentation related to the AS Software ("AS Related
Documentation").
(d) If it is determined that the AS Software is operating in accordance
with the AS Statement of Work and the reported problem arose from the Owner's
unauthorized use of the AS Software, the Vendor shall be entitled to Vendor's
reasonable standard charges for any reasonable effort spent, including
reasonable personnel travel and reasonable subsistence, if any, to diagnose,
analyze, and resolve such problem.
6.9 DESCRIPTION OF AS SOFTWARE CORRECTIVE MAINTENANCE SERVICES
A. DIAGNOSTIC SUPPORT
The Vendor will provide diagnostic support of Defects reported by the Owner
including isolation of the Defect to one of the following areas: (1) Program
Problems:
(a) AS Software
(b) AS Related Documentation
(2) Other Problems:
(a) Owner Operational Problems
(b) Data Base Problems
(c) Hardware and Firmware Problems
(d) Other Interfacing AS Systems Problems
B. CORRECTIVE ACTION
The Vendor will provide the following types of corrective action as
follow-up to the diagnostic support.
(1) AS SOFTWARE DEFECTS
(a) AS Software - In response to maintenance requests, the Vendor will
provide required Corrective Maintenance, in accordance with the AS Severity
Levels and Corrective Actions specified below for the AS Software in two ways:
(i) AS Emergency Fixes - Vendor will provide fixes such as
patches or changes to operational methods when it has been
determined that the Defect is in the AS Severity Level 1 or
2 classification;
(ii) AS Maintenance Update - A maintenance update to the
standard AS Software release will be issued on a periodic
basis to provide a fix to a group of conditions.
(iii) AS Related Documentation - If the condition is
isolated to the AS Related Documentation for the AS
Software, the corrected documentation will be given to the
Owner as part of the AS Maintenance Update or AS Emergency
Fix procedures.
(2) OTHER PROBLEMS
The Vendor will perform Problem Resolution Management for all components of
the total system, including AS Software, hardware and Firmware as follows:
(a) Owner Operational Problems - If the condition is determined to be the
result of unauthorized use or misuse of the AS System by the Owner, it will be
referred back to the Owner by the Vendor. At the Owner's request the Vendor will
prepare a proposal for billable effort to correct such nonstandard use.
(b) Data Base Problems - If the condition is determined to be the result of
corruption of the AS Software data base, and such corruption is not the direct
result of the AS Software, the condition will be referred back to Owner. At
Owner's request and at Vendor's option, Vendor may prepare a proposal for
billable effort to correct Owner's data base.
(c) Hardware/Firmware Problems - When a condition has been isolated to
hardware or Firmware associated with the AS Software, it will be referred back
to the Owner by Problem Resolution Management personnel for disposition under
whatever maintenance arrangement the Owner may have.
(d) Other Interfacing Systems Problems - If the condition is determined to
be caused by mechanized systems other than the AS Software, including but not
limited to those systems, excluding any and all systems and/or products, which
interface with the AS Software, it will be referred to Owner for action
authorized and/or contemplated in Appendix G.
(3) USER DOCUMENTATION
Documentation will be provided for AS Maintenance Updates which will enable
the Owner to train its personnel in the operation of the AS Software as modified
by such releases.
(4) NOTIFICATIONS OF CORRECTIONS
The Vendor will issue bulletins periodically, but not less than quarterly,
that describe known Defects in the AS Software or known interface hardware or
Firmware Defects and the availability of corrections for them. Bulletins will be
provided to the Owner during the period in which Owner is receiving maintenance
AS Services under the Contract for the applicable AS Software. The Owner will be
responsible for distribution of such bulletins within its own company; provided
that the Vendor will use reasonable efforts to forward any such bulletins to the
appropriate personnel at the Owner then known to the Vendor.
(5) CORRECTIVE MAINTENANCE RESPONSIBILITY
The Owner agrees to install the corrections or replacements provided
pursuant to the terms of this Contract as promptly as possible. Owner's failure
to install emergency fixes or patches or releases will cause the AS Software to
be considered nonstandard until all such fixes are installed.
(6) [Intentionally Omitted]
(7) PROBLEM DIAGNOSIS MATERIALS
The Owner will use its reasonable efforts to cooperate with the Vendor, in
the Vendor's performance of its obligations under and/or pursuant to the terms
of this Appendix L.
(8) SEVERITY CONDITIONS AND PRIORITIZATION
The Vendor shall perform AS Problem Resolution Management in accordance
with the AS System severity condition after it has been assigned an AS Severity
Level by the Owner. The priority for problem condition resolution will be based
on the AS Severity Level of outstanding reported conditions. AS Severity Level 1
conditions will receive top priority support. In the event that notification of
a condition with a AS Severity Level 1 supplants and redirects efforts expended
on a AS Severity Level 2 condition, the Vendor will notify the Owner reporting
such AS Severity Level 2 condition that there will be a delay in correcting the
AS Severity Level 2 condition and will reschedule efforts to correct that
condition.
(9) ESCALATION PROCEDURES
The Vendor will observe the following escalation procedures:
(a) AS Severity Level 1 - In the event of a AS Severity Level 1 condition
that is still unresolved four (4) hours after the condition is reported, the
Vendor will notify the Vendor's supervisory management of the unresolved
condition. If the AS Severity Level 1 condition is still unresolved eight (8)
hours after the condition is reported, the next higher level of the Vendor
supervisory management will be notified of the unresolved condition.
(b) AS Severity Level 2 - In the event of a AS Severity Level 2 condition
that is still unresolved twelve (12) hours after the condition is reported, the
Vendor will notify the Vendor's supervisory management of the unresolved
condition. If the AS Severity Level 2 condition is still unresolved twenty-four
(24) hours after the condition is reported, the next higher level of Vendor
supervisory management will be notified of the unresolved condition.
(10) HOT-LINE SERVICE
The Vendor will provide an "800 Hot-Line" telephone Service for direct
telephone support to the Owner in an emergency situation. This Service will be
available twenty-four (24) hours a day, seven (7) days a week for AS Severity
Levels 1 and 2 conditions only. Prior to placing the call to the Hot-Line, the
following steps shall have been completed by the Owner with assistance of Vendor
when necessary:
(a) Identification of the condition and its isolation to a particular
component of the AS System believed to be the Vendor's responsibility.
(b) Collection of sufficient supporting documentation from the system for
inclusion in the trouble report.
(c) Determination that there are no outstanding program fixes which correct
the condition.
Once the solution is found, the Vendor will supply it for testing and use
on the failed system.
(11) NORMAL TROUBLE-REPORTING PROCEDURES
Owner requirements and routines for reporting AS Severity Levels 2, 3 and 4
conditions are as follows:
(a) The Owner shall prepare a trouble report, including supporting
documentation and forward it to the Vendor.
(b) The Owner may also telephone the Vendor's Operation Support Center
(OSC) for answers to general operational questions about the AS Software and/or
assistance in correcting Severity Level 3 and 4 conditions. The return call will
either provide the requested information, request additional information, or
report on the status of corrective action on the trouble report.
(c) The calling Owner's personnel shall provide the following information:
Caller's name, location, and company Call-back
telephone number System name, location Generic issue
Processor location, type and serial number Nature of
question or situation.
(12) RESPONSE TIME
The Vendor will provide a one (1) hour Response Time during the twenty-four
hour seven day a week coverage period (the "Standard Coverage Period"). The
response will involve the establishment of a mutually agreed-upon AS Severity
Level for the condition. Appropriate Corrective Maintenance and escalation
procedures will begin during the Standard Coverage Period. However, at the
Owner's request, the Vendor will immediately initiate Corrective Maintenance
activities during other periods for a AS Severity Level 1 condition.
AS SEVERITY LEVELS AND CORRECTIVE ACTIONS
=========== ------------------------------ =====================================
AS
SEVERITY CONDITION ACTION
=========== ------------------------------ =====================================
LEVEL 1 This condition exists when The Vendor will develop an emergency
the AS System is completely bypass or a fix to enable the
inoperative, and it is not licensed AS Software to function
usable by the Owner. The until the condition is resolved or
inoperative portion of the make necessary changes to such AS
licensed Software completely Software to restore it to
restricts the Owner's operating condition.
operation.
=========== ------------------------------ =====================================
LEVEL 2 This condition exists when The Vendor will initiate problem
the AS System is partially correction procedures and will
inoperative, but it is still continue them until the condition is
usable by Owner. The resolved or corrected. The Vendor
inoperative portion of the will notify the Owner of any
licensed AS Software severely resolution or corrections, which
restricts the Owner's will be in the form of procedure or
operations but has a less program changes. If a bypass proce-
critical effect than a AS dure is utilized, the condition will
Severity Level 1 condition. be reclassified to AS Severity
Level 3.
=========== ------------------------------ =====================================
LEVEL 3 This condition exists when The Vendor will initiate problem
the AS System is usable by resolution and correction procedures
the Owner but with limited with the objective of resolving or
functions. The condition is correcting the condition and
not critical to Owner scheduling any correction, replace-
operations and does not ment, or change for inclusion in
severely restrict such future scheduled release of the
operations licensed AS Software and/or its
related documentation.
============ ----------------------------- =====================================
LEVEL 4 This condition exists when The Vendor will initiate problem
the AS System is usable by resolution and correction procedures
the Owner and a means of with the objective of resolving or
circumventing the condition correcting the condition and may
has been found. The condi- schedule any correction, replacement
tion does not materially or change for inclusion in a future
affect Owner operations release of the licensed AS Software.
or service.
============ ============================= =====================================
TABLE OF CONTENTS
Page
1. Definitions......................................................... 1
2. Agreements.......................................................... 2
3. Amendment to Subsection 1.1......................................... 3
4. Amendment to Subsection 2.2......................................... 8
5. Amendment to Subsection 2.5......................................... 9
6. Amendment to Subsection 2.20........................................ 9
7. Amendment to Subsection 2.22........................................ 9
8. Amendment to Subsection 2.23....................................... 10
9. Amendment to Subsection 6.1........................................ 11
10. Amendment to Subsection 6.3........................................ 11
11. Amendment to Section 9............................................. 12
12. Amendment to Section 12............................................ 14
13. Amendment to Section 15............................................ 16
14. Amendment to Subsection 17.1....................................... 17
15. Amendment to Subsection 17.7....................................... 18
16. Amendment to Subsection 20.2....................................... 18
17. Amendment to Subsection 22.2....................................... 18
18. Cross References................................................... 19
19. NO OTHER AMENDMENTS................................................ 19
20. Governing Law...................................................... 19
21. Descriptive Headings............................................... 19
22. Counterparts....................................................... 19
APPENDICES
Appendix A.................................AM/HLR Description and Specifications
Appendix B................................SCP/HLR Description and Specifications
Appendix C...............................................[Intentionally Omitted]
Appendix D1..................................Lucent/Nortel License Agreement-HLR
Appendix D2................................Lucent/Nortel License Agreement-OAM&P
Appendix E.................................................HLR Statement of Work
Appendix F........................................................SCP/HLR Prices
Appendix G............................................AS/OAM&P Statement of Work
Appendix H...............................................[Intentionally Omitted]
Appendix I.......................................................AS/OAM&P Prices
Appendix J...............................................[Intentionally Omitted]
Appendix K......Application Software Products Acceptance Procedures and Criteria
Appendix L........Application Software Products Maintenance and Support Services