GENERAL AGREEMENT BETWEEN
CHOICE ONE COMMUNICATION INC. AND
LUCENT TECHNOLOGIES INC.
TABLE OF CONTENTS Page
ARTICLE I GENERAL TERMS AND CONDITIONS......................................................................
.... 1 1.1 DEFINITIONS:....................................................................
................... 1
1.2 TERM OF AGREEMENT:......................................................................
........... 3 1.3 SCOPE:..........................................................................
................... 3 1.4 CUSTOMER RESPONSIBILITY:.................................................................
.......... 4 1.5 ORDERS:.........................................................................
................... 4
1.6 CHANGES IN CUSTOMER'S ORDERS:...................................................................... 5
1.7 CHANGES IN PRODUCTS:.......................................................................
........ 5 1.8 PRICES:.........................................................................
................... 5
1.9 INVOICES AND TERMS OF PAYMENT:..................................................................... 6
1.10 PURCHASE MONEY SECURITY
INTEREST:.................................................................. 7 1.11 TAXES:..........................................................................
................... 8
1.12 TRANSPORTATION AND PACKING:........................................................................ 8
1.13 TITLE AND RISK OF LOSS:...........................................................................
. 8 1.14 WARRANTY:.......................................................................
................... 9 1.15 INFRINGEMENT:......................................................................................11 1.16 CUSTOMER'S REMEDIES:...............................................................................12 1.17 INSURANCE:.........................................................................................13
1.18 USE OF INFORMATION:................................................................................13 1.19 DOCUMENTATION:.....................................................................................13 1.20 NOTICES:...........................................................................................14 1.21 FORCE MAJEURE:.....................................................................................14 1.22 ASSIGNMENT:........................................................................................14
1.23 TERMINATION OF AGREEMENT FOR BREACH:...............................................................15 1.24 ARBITRATION:.......................................................................................15 1.25 NON-SOLICITATION:..................................................................................16 1.26 INDEPENDENT CONTRACTOR:............................................................................16 1.27 RELEASES VOID:.....................................................................................16 1.28 PUBLICITY:.........................................................................................16
1.29 CONFIDENTIALITY OF AGREEMENT:......................................................................16 1.30 AMENDMENTS:........................................................................................16 1.31 SEVERABILITY:......................................................................................17
1.32 WAIVER:............................................................................................17 1.33 SURVIVAL:..........................................................................................17
1.34 SECTION HEADINGS:..................................................................................17
1.35 CHOICE OF LAW:.....................................................................................17 1.36 AMBIGUITIES:.......................................................................................17
ARTICLE II PROVISIONS APPLICABLE TO LICENSED MATERIALS..........................................................17
2.1 LICENSE FOR LICENSED MATERIALS:....................................................................17
2.2 CHANGES IN LICENSED MATERIALS:.....................................................................18
2.3 CANCELLATION OF LICENSE:...........................................................................18
2.4 OPTIONAL SOFTWARE FEATURES:........................................................................18 -i-
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2.5 ADDITIONAL RIGHTS IN LICENSED MATERIALS:...........................................................19
2.6 INSTALLATION OF SOFTWARE:..........................................................................19 2.7 SOFTWARE ACCEPTANCE:...............................................................................19
2.8 MODIFICATIONS BY CUSTOMER TO USER CONTROLLED MODULES:..............................................20
2.9 ADDITIONAL SOFTWARE RIGHTS FOR 5ESS(R)SWITCH LICENSED MATERIALS....................................20
ARTICLE III PROVISIONS APPLICABLE TO ENGINEERING, INSTALLATION AND OTHER SERVICES................................21
3.1 SITE REQUIREMENTS:.................................................................................21
3.2 ADDITIONAL ITEMS TO BE PROVIDED BY CUSTOMER:.......................................................22
3.3 ITEMS TO BE FURNISHED BY SELLER....................................................................25 3.3.1 ENGINEERING:....................................................................................25 3.3.2 INSTALLATION:...................................................................................26 3.4 ACCEPTANCE.........................................................................................29
3.5 WORK OR SERVICES PERFORMED BY OTHERS:..............................................................29
ARTICLE IV ENTIRE AGREEMENT......................................................................................29
4.1 ENTIRE AGREEMENT...................................................................................29
The mailing, delivery or negotiation of this Agreement by Lucent or its
agent or attorney shall not be deemed an offer by Lucent to enter into any
transaction or to enter into any other relationship, whether on the terms
contained herein or on any other terms. This Agreement shall not be binding upon
Lucent, nor shall Lucent have any obligations or liabilities or Customer any
rights with respect thereto, or with respect to the transactions contemplated by
the Agreement, unless and until the Agreement has been approved by the executive
officers and/or Board of Directors of Lucent and Lucent has executed and
delivered this Agreement. Until such execution and delivery of this Agreement,
Lucent may terminate all negotiation and discussion of the subject matter
hereof, without cause and for any reason, without recourse or liability.
This General Agreement Number LNM980612RMCO (hereinafter "General
Agreement" or "Agreement") is made effective as of the 17th day of July, 1998
("Effective Date") by and between Choice One Communication Inc., a Delaware
corporation, with offices located at 333 West Commercial Street, Suite 2500,
Inc., a Delaware corporation, acting through its Global Service Providers Group,
with offices located at 600 Mountain Avenue, Murray Hill, New Jersey 07974
(hereinafter "Seller").
WHEREAS, Seller desires to supply to Customer and Customer desires to
procure from Seller the products and services described herein, pursuant to the
terms and conditions contained herein.
NOW, THEREFORE, in consideration of the mutual promises herein
contained and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties intending to be lawfully bound
agree as follows: ARTICLE I
GENERAL TERMS AND CONDITIONS
1.1 DEFINITIONS:
For the purpose of this Agreement, the following definitions will apply:
(a) "Affiliate" of a corporation means its Subsidiaries, any company of
which it is a Subsidiary, and other Subsidiaries of such company.
(b) "Bill and Hold Products" means Products, Licensed Materials, and/or
parts thereof, which the Customer requests and Seller agrees to inventory or
warehouse, at a price mutually agreed to by the parties, until final delivery to
the Customer.
(c) "Customer Price List" means Seller's published "Ordering and Price
Guides" or other price notification releases furnished by Seller for the purpose
of communicating Seller's prices or pricing related information to Customer,
however, this does not include firm price quotations.
(d) "Cutover" means the verification by Seller and Customer of actual
usage over the installed Products. This function occurs after Turnover and is
not performed by Seller unless specifically requested by Customer and is usually
covered under a separate Professional Services Agreement.
(e) "Delivery Date" means the date required under this Agreement by
which all deliverables ordered by Customer are to be delivered to the
destination specified in the order.
(f) "Designated Processor" means the Product for which licenses to Use
Licensed Materials are granted.
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(g) "Firmware" means a combination of (1) hardware and (2) Software
represented by a pattern of bits contained in such Hardware.
(h) "Fit" means physical size or mounting arrangement (e.g., electrical
or mechanical connections).
(i) "Form means physical shape.
(j) "Function" means the operation the Product performs.
(k) "Hazardous Materials" means material designated as a "hazardous
chemical substance or mixture" pursuant to Section 6 of the Toxic Substance
Control Act; a "hazardous material" as defined in the Hazardous Materials
Transportation Act (49 U.S.C. 1801, et seq.); "hazardous substance" as defined
in the Occupational Safety and Health Act Hazard Communication Standard (29 CFR
1910.1200) or as defined in the Comprehensive Governmental Response,
Compensation and Liability Act, 42 U.S.C. 9601(14), or other pollutant or contaminant.
(l) "Installation Complete Date," means the date on which OS Software
or transmission systems Software is installed by Seller at the location
specified in the order and determined by Seller to be ready for Use by Customer.
(m) "Licensed Materials" means the Software and Related Documentation
for which licenses are granted by Seller under this Agreement; no Source Code
versions of Software are included in Licensed Materials.
(n) "OS Software" means the object code Software, for operations
systems, embodied in any medium, including firmware.
(o) "Product" means equipment hardware, and parts thereof, but the term
does not mean Software whether or not such Software is part of Firmware.
(p) "Related Documentation" means materials useful in connection with
Software such as, but not limited to, flowcharts, logic diagrams and listings,
program descriptions and Specifications.
(q) "Services" means any engineering, installation or repair services
to be performed by Seller under this Agreement, but the term "Services" does not
include any services provided by the Professional Services Division of Seller's
Network Systems Group unless otherwise expressly agreed to in writing by theparties.
(r) "Software" means a computer program consisting of a set of logical
instructions and tables of information that guide the functioning of a
processor. Such program may be contained in any medium whatsoever, including
hardware containing a pattern of bits, representing such program. However, the
term "Software" does not mean or include such medium.
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(s) "Source Code" means any version of Software incorporating
high-level or assembly language that generally is not directly executable by aprocessor.
(t) "Specifications" means Sellers or its vendor's technical
specifications for particular Products or Software furnished hereunder.
(u) "Statement of Work" (SOW) means the detailed description of the
actual Services to be performed which includes the expected completion dates of
such Services as shown in Exhibit 1.
(v) "Subsidiary" means any corporation in which Customer owns more than
fifty percent (50%) of the eligible voting stock; such corporation shall be
deemed to be a Subsidiary of such Customer only as long as such ownership or
control exists.
(w) "Turnover" means, with respect to Products and Software to be
installed by Seller, the point at which Seller has completed the installation
and notifies Customer that the installation is completed and that Seller has
confirmed that the installed Product and/or Software comply with Seller's
Specifications. This term does not mean Cutover which is separately defined herein.
(x) "Use," with respect to Licensed Materials means loading the
Licensed Materials, or any portion thereof, into a Designated Processor for
execution of the instructions and tables contained in such Licensed Materials.
1.2 TERM OF AGREEMENT:
The term of this Agreement shall commence on the Effective Date and
shall continue in effect thereafter for a period of three (3) years ("Term").
This Agreement may be extended as. mutually agreed to in writing by the parties.
1.3 SCOPE:
(a) The terms and conditions of this Agreement shall apply to all
transactions occurring during the Term whereby Products, Licensed Materials or
Services are provided by Sellers Global Service Providers Group (formerly
Network Systems Group) to Customer. Purchase orders placed under this General
Agreement for Seller's 5ESS(R)-2000 Switching Systems Products, Transmission
Systems Products and related Licensed Materials shall be governed by the terms
set forth in Appendix A attached hereto and made a part hereof. Except as
expressly stated in this Agreement, this Agreement shall not apply to any
products, licensed materials or services offered for supply by any other group
(e.g., Microelectronics, Business Communications Systems) within Lucent. By
placing orders with Seller, including change and/or addition orders, or using
any Products, Licensed Materials, or Services provided hereunder, Customer
agrees to be bound to the terms of this Agreement. Customer understands and
agrees that all Products, Licensed Materials, or Services furnished by Seller to
Customer pursuant to this Agreement shall be for Customers own internal use in
the United States only. Products, Licensed Materials or Services furnished under
this Agreement are not: being supplied for resale and shall not be resold byCustomer.
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(b) All firm price quotes made by Seller to Customer shall incorporate
the terms and conditions of this Agreement. Any conflicting terms and conditions
of a firm price quote, signed by an authorized representative of Seller and
Customer and dated after the effective date of this Agreement, will supersede
the comparable terms of this Agreement.
1.4 CUSTOMER RESPONSIBILITY:
Customer shall, at no charge to Seller, provide Seller with such
technical information, data, technical support or assistance as may reasonably
be required by Seller to fulfill its obligations under this Agreement, any
subordinate agreement or order. If Customer fails to provide the technical
information, data, support or assistance, Seller shall be discharged from any
such obligation.
1.5 ORDERS:
(a) All orders submitted by Customer for Products, Licensed Materials,
and Services shall incorporate and be subject to the terms and conditions of
this Agreement. Any order submitted pursuant to a firm price quotation shall
include such firm price quotation number. All orders, including electronic
orders, shall contain the information as detailed below:
(i) Complete and correct ship to and bill to address;
(ii) The quantity and type of Products, Licensed Materials, and
Services being ordered;
(iii) The price;
(iv) The requested Delivery Date in accordance with Seller's
standard interval for the Products, Licensed Materials, and
Services being ordered. In the event a non-standard interval
has been mutually agreed to by the parties, reference to the
specific document agreeing to the interval needs to be included;
(v) The requested completion date in accordance with Sellers
standard interval for the Products, Licensed Materials, and
Services being ordered;
(vi) Reference to this Agreement;
(vii) If an order is for Bill and Hold Products, the phrase "Bill
and Hold" must be clearly and conspicuously stated, in the order.
The requested Delivery Date of any order must be in accordance with
Sellers published standard order intervals in effect on the date of receipt of
order by Seller. Seller reserves the right to change such standard order
intervals without notification to Customer but only with respect to future
orders. Such change shall not affect orders accepted by Seller prior to the
change to the standard order intervals. Electronic orders shall be binding on
Customer notwithstanding the absence of a signature. All orders are subject to
acceptance by Seller. Seller reserves the right to place any order on hold,
delay shipment, and/or reject any order due to, but not limited to the breach or
default by Customer of its obligations under this Agreement or Customer's
insufficient credit limits. Terms and conditions on Customer's purchase order
which are inconsistent with the provisions of this Agreement and any pre-printed
terms and conditions on Customer's purchase order shall be ineffective, void and
of no force and effect. Orders shall be sent to the following address:
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Lucent Technologies Inc.
Customer Service
6701 Roswell Road
Building D - 3rd Floor
Atlanta, GA 30328-2501
(b) if an order is for Bill and Hold Products, the phrase "Bill and
Hold" must clearly and conspicuously appear on the order. In the event Customer
orders Bill and Hold Products, Seller will defer final shipment of such
Product(s) until the final ship date indicated on the purchase order or such
final ship date as is mutually agreed between the parties provided that in no
event shall Seller be obligated to hold Bill and Hold Products longer than one
(1) year from the date of the applicable purchase order. Customer agrees to pay
to Seller a monthly stocking fee for any Bill and Hold Products held beyond the
final ship date indicated on the purchase order or otherwise mutually agreed todate.
1.6 CHANGES IN CUSTOMER'S ORDERS:
Changes by Customer to an order which has been previously accepted by
Seller (a "Change Order") are subject to acceptance by Seller. Change Orders
shall be treated as a separate order and shall follow Seller's change order
process. In the event Seller accepts a Change Order and such change affects
Seller's ability to meet its obligations under the original order, any price (or
discount, if applicable), shipment date or Services completion date quoted by
Seller with respect to such original order is subject to change. Seller will
provide to Customer written quotations and expected completion dates for any
requested Change Orders.
1.7 CHANGES IN PRODUCTS:
Prior to shipment, Seller may at any time make changes in Products.
Seller may modify the Product(s) drawings and Specifications or substitute
Products of later design. Seller agrees that such modifications or substitutions
will not impact upon Form, Fit, or Function under normal and proper use of the
ordered Product as provided in Sellers Specifications. With respect to changes,
modifications, and substitutions that do impact the Form, Fit, or Function of
the ordered Product, Seller shall notify Customer in writing thirty (30) days
prior to the date the changes become effective. In the event the Customer
objects to the change, Customer shall notify Seller within thirty (30) days from
the date of notice. Upon receipt of notice, Seller shall not furnish modified
Products to Customer on any orders in process.
1.8 PRICES:
(a) To the extent Customers order is subject to a firm price quotation
made by Seller, prices, fees, and charges (hereinafter "Prices) shall be as set
forth in Sellers firm price quotation.
(b) Except as expressly stated in this Agreement, in all other cases
Prices shall be those contained in Sellers Customer Price Lists. The applicable
Customer Price Li st shall be the issue that is in effect on the date of
Seller's receipt of the order. The requested Delivery Date of such order must be
in accordance with Sellers published shipping or planning interval or thirty
(30) days from the date of order receipt, whichever is longer. Prices for
Products and license fees for Licensed Materials to be shipped, or Services to
be performed beyond the published
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shipping interval will be based upon the date required for order entry by Seller
in accordance with Customers requested date. and applying the Price from the
Customer Price List as of that date.
(c) Seller may amend its Prices, other than those subject to firm price
quotations and, except when applicable Prices are adjusted for changes in raw
material prices, Seller agrees to provide thirty (30) days written notice of any
increase in Prices contained in Sellers Customer Price Lists. When Prices
contained in Sellers Customer Price Lists are adjusted for changes in raw
material prices, Sellers new Prices will be revised effective the first day of
any given month. The basis for raw material adjustments will be provided to
Customer upon request.
1.9 INVOICES AND TERMS OF PAYMENT:
(a) Payment for Products, Licensed Materials and Services (including
transportation charges and taxes, if applicable) will be due in accordance with
the payment schedule described below. Upon acceptance of the purchase order and
initial payment required below, Seller will commence the order fulfillment
process. Seller shall notify Customer when the Products and/or Licensed
Materials are ready for shipment. Upon such notification, Customer shall arrange
the electronic transfer of funds for the second payment in accordance with
subsection (c) below. Upon receipt of the second scheduled payment, Seller will
release the shipment for delivery to Customer. Seller will provide Customer a
"record only" invoice after receipt of the second payment. Such invoice will
reflect the amount due and payments received through the date of the invoice. If
Seller is responsible for installation, the final payment will be invoiced upon
Turnover or as soon thereafter as practical. For furnish only orders the third
and final payments will be invoiced upon shipment or as soon as practical
thereafter. In either case the payment is due for receipt by Seller within
thirty (30) days of the date of the invoice.
With respect to the payment for Products, Licensed Materials and
Services specified in this General Agreement, in the event that Customer enters
into a loan agreement with a third party lender to finance the procurement of
the Products, Licensed Materials and Services, under this Agreement, the "Loan
Agreement" between Customer and lender may authorize lender to pay proceeds
directly to Seller. Seller agrees to accept payment from lender in satisfaction
of Customer's payment obligation hereunder; however, that the Terms of Payment
set forth in this Section shall be complied with in full.
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Payment Milestone Schedule Percent of
Total Amount of Purchase Order Due
- ------------------------------------------------------------------------------ ----------------------------------------
To Accompany Purchase Order (Initial Payment) 15%
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Prior to Shipment of Products (Second Payment) 40%
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Due to Seller within thirty (30) days of Shipment of 30%
Products (Third Payment)
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Due to Seller within thirty (30) days of date of invoice 15%
(Final Payment)
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(b) For Products, Licensed Materials and Services (including
transportation charges and taxes, if applicable) that are not required to be
paid in advance, Seller will invoice Customer, all amounts due for Products and
Licensed Materials upon shipment and all amounts due for Services, upon
completion of Services or, in either event, as soon as practical thereafter
Customer shall pay such invoiced amounts for receipt by Lucent within thirty
(30) days of the invoice date. Bill and Hold Products will be invoiced by Seller
upon the earlier of (i) completion of assembly at Seller's facility or (ii) upon
stocking at Customer's designated location. Such invoice will serve as Seller's
notification that Bill and Hold Products are complete and ready to be released
by Customer for final shipment. A sample invoice is provided in Exhibit 2 for
informational purposes only.
(c) Customer shall pay all amounts due Seller hereunder using
Electronic Funds Transfer ("EFT") whether amounts have been invoiced by Seller
or are due as advance payments. EFT payments by Customer shall be made to the
following account of Seller or such other account as is subsequently designated
by Seller in writing and, concurrent with the EFT payment, Customer shall fax a
copy of the remittal to Seller's Manager Cash Operations at 770-750-4288.
Chase Manhattan Bank
New York, New York
Account Name: Lucent Technologies Inc.
ACCT. 910144-9099
ABA 021000021
(d) If Customer fails to pay any invoiced amount when due, the invoiced
amount will be subject to a late payment charge at the rate of one and one half
percent (1-1/2%) per month, or portion thereof, of the amount due (but not to
exceed the maximum lawful rate). Customer agrees to pay Sellers attorneys fees
and other costs incurred by Seller in the collection of any amounts invoicedhereunder.
(e) Customer agrees to review all invoices furnished by Seller
hereunder upon receipt and, notify Seller of any billing discrepancies within
ten (10) days of receipt of the applicable invoice. Such inquiries can be
directed to Seller in writing or by telephone. Inquiries shall be made to the
telephone number or, if in writing, to the address identified on the invoice.
1.10 PURCHASE MONEY SECURITY INTEREST:
(a) Seller reserves and Customer agrees that Seller shall have a
purchase money security interest in all Products and Licensed Materials
heretofore supplied or hereafter supplied to Customer by Seller under this
Agreement until any and all payments and charges due Seller under this Agreement
including, without limitation, shipping and installation charges, are paid in
full. Seller shall have the right, at any time during the Term and without
notice to Customer, to file in any state or local jurisdiction such financing
statements (e.g., UCC-1 financing statements) as Seller deems necessary to
perfect its purchase money security interest hereunder. Upon request by Seller,
Customer hereby agrees to execute all documents necessary to secure Sellers
purchase money security interest including without limitation, UCC-1 or such
other documents Seller deems reasonably necessary. Notwithstanding the foregoing
obligation of
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Customer to execute, Customer hereby irrevocably appoints Seller as its
attorney-in-fact for purposes of executing and filing such financing statements
and such other documents prepared by Seller or its designated agent for purposes
of perfecting Sellers security interest hereunder. Customer also agrees that
this Agreement may be filed by Seller in any state or local jurisdiction as a
financing statement (or as other evidence of the Seller's purchase money
security interest).
(b) In addition to any other remedy available to Seller as provided
herein, by common law and by statute, Seller may exercise its right to reclaim
all Products and Licensed Materials sold to Customer pursuant to UCC-702 or such
other applicable provision as it may exist from state to state, upon discovery
of Customers insolvency, provided Seller demands in writing reclamation of such
goods before ten (10) days after receipt of such goods by Customer, or if such
ten (10) day period expires after the commencement of a bankruptcy case, before
twenty (20) days after receipt of such goods by the Customer. 1.11 TAXES:
Customer shall be liable for all taxes and related charges, however
designated, imposed upon or based upon the provision, sale, license or Use of
Products, Licensed Materials or Services levied upon the sale, excluding taxes
on Seller's net income, unless Customer provides Seller with a valid tax exempt
certificate. Seller's failure to collect taxes in accordance herewith shall not
be deemed to be an authorization to resell Products or Services or sublicense
Licensed Materials.
1.12 TRANSPORTATION AND PACKING:
Seller, in accordance with its normal practices, shall arrange for
prepaid transportation to destinations in. the contiguous United States and
shall invoice transportation charges to Customer. Premium transportation will be
used only at Customer's request. Seller shall pack Products for delivery in the
contiguous United States, in accordance with its standard practices for domestic
shipments. Where, in order to meet Customer's requests, Seller packs Products in
other than its normal manner or for destinations outside the contiguous United
States, Customer shall pay the additional charges for such packing andtransportation.
1.13 TITLE AND RISK OF LOSS:
Title to Products only and risk of loss to Products and Licensed
Materials shall pass to Customer upon delivery to the Customer. Title to all
Licensed Materials (whether or not part of Firmware) furnished by Seller, and
all copies thereof made by Customer, including translations, compilations and
partial copies are, and shall remain, the property of Seller. Title to Products
only and risk of loss for Products and Licensed Material for Bill and Hold
Products shall pass to Customer upon stocking at Seller's facility or Customers
designated location, whichever occurs earlier. Customer shall notify Seller
promptly of any claim with respect to loss which occurs while Seller has the
risk of loss and shall cooperate in every reasonable way to facilitate the
settlement of any claim. For purposes of this section, "delivery" shall mean the
point at which Seller or Seller's supplier or agent turns over possession of the
Product or Licensed Materials to Customer, Customer's employee, Customer's
designated carrier, Customer's warehouse, or other Customers agent and not
necessarily the final destination shown on the order.
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(a) Seller warrants to Customer only, that during the applicable
Warranty Periods set forth below (i) Sellers manufactured Products (exclusive of
Software) will be free from defects in material and workmanship and will conform
to Seller's Specifications for such Products; (ii) Software developed by Seller
will be free from those defects which materially affect performance in
accordance with Sellers Specifications; and (iii) Services will be performed in
a workmanlike manner and in accordance with good usage and accepted practices in
the community in which Services are provided. With respect to Products or
Software or partial assembly of Products furnished by Seller but neither
manufactured by Seller nor purchased by Seller pursuant to its procurement
Specifications ("Vendor Items"), Seller, to the extent permitted, does hereby
assign to Customer the warranties given to Seller by its vendor(s) of such
Vendor Items.
(b) For purposes of this Agreement the term "Warranty Period" means the
period of time listed below which, unless otherwise stated, commences on date of
shipment or, if installed by Seller the earliest of either: (i) acceptance by
Customer; or (ii) thirty (30) days from the date Seller submits its notice of
completion of its installation; or (iii) the date Customer first Outs Products
and/or Licensed Materials into service. For Bill and Hold Products the warranty
will commence upon the date of stocking at Sellers facility or Customer's
designated location. The Warranty Period for any Product or Software (or part
thereof) repaired or replaced under this Section 1.14 is the period listed in
the right column below or the unexpired portion of the new Product Warranty
Period, whichever is longer.
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SELLERS MANUFACTURED PRODUCTS AND SOFTWARE
WARRANTY PERIOD
- ------------------------------------------------------------------------------ ----------------------------------------
Base Period New
Product Repaired Product or Part
- ------------------------------------------------------------------------------ ----------------------------------------
Switching Systems Products 24 Months
6 Months
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Central Office Power Equipment:
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Associated with Switching Systems 24 Months
6 Months
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Not Associated with Switching Systems 12 Months
6 Months
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Transmission Systems Products:
- ----------------------------------------------------------------------------------------------------------------------
DACS-IV 2000 60 Months
6 Months
- ----------------------------------------------------------------------------------------------------------------------
FT-2000 OC-48 60 Months
6 Months
- ----------------------------------------------------------------------------------------------------------------------
DDM-2000 OC-3/OC-12 60 Months
6 Months
- ----------------------------------------------------------------------------------------------------------------------
DDM-2000 FIBER REACH 60 Months
6 Months
- ----------------------------------------------------------------------------------------------------------------------
SLC 2000 Access System 60 Months
6 Months
- ----------------------------------------------------------------------------------------------------------------------
SLC 2000 MSDT 60 Months
6 Months
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SLC Series 5 (System and Plug In) 60 Months
6 Months
- ----------------------------------------------------------------------------------------------------------------------
Other Transmission Products (i.e., DDM Plus Repeater 24 Months
6 MonthsCases)
- ------------------------------------------------------------------------------ ----------------------------------------
Network Cable Systems Products 12 Months
3 Months
- ----------------------------------------------------------------------------------------------------------------------
All Other Products 2 Months
2 Months
- ----------------------------------------------------------------------------------------------------------------------Software:
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Switching System Software 12 Months
6 Months
- ----------------------------------------------------------------------------------------------------------------------
Transmission Systems Software 12 Months
6 Months
- ----------------------------------------------------------------------------------------------------------------------
Operations Systems Software 3 Months
1 Month
- ----------------------------------------------------------------------------------------------------------------------
All Other Software 3 Months
1 Month
- ----------------------------------------------------------------------------------------------------------------------
(c) If, under normal and proper use, a defect or non-conformity appears
in Sellers manufactured Products or Software during the applicable Warranty
Period and Customer promptly notifies Seller in writing of such defect or
non-conformance and follows Seller's instructions regarding return of defective
or non-conforming Product or Software, Seller, at its option, will either
repair, replace or correct the same without charge at its manufacturing or
repair facility or provide a refund or credit based on the original purchase
price or license fee. If engineering or installation Services prove not to be
performed as warranted within a six (6) month period commencing on the date of
completion of the Services, Seller, at its option, either will correct the
defect or non-conforming Services or render a full or pro-rated refund or credit
based on the original charges for the Services. No Product or Software will be
accepted for repair or replacement without the written authorization of and in
accordance with instructions of Seller. Removal and reinstallation expenses as
well as transportation expenses associated with returning such Product or
Software to Seller shall be borne by Customer. Seller shall pay the costs of
transportation of the repaired or replacing Product or Software to any United
States destination designated by Customer. If Seller determines that returned
Product or Software is not defective, Customer shall pay Sellers costs of
handling, inspecting, testing and transportation and, if applicable travel and
related expenses. In repairing or replacing any Product, part of Product, or
Software medium under this warranty, Seller may use either new, remanufactured,
reconditioned, refurbished or functionally equivalent Products or parts.
Replaced Products or parts shall become Seller's property.
(d) With respect to Seller's manufactured Products which Seller has
ascertained are not readily returnable for repair, Seller, at its option, with
concurrence from Customer, may elect to repair or replace the Products at
Customer's site. Customer's concurrence shall not be unreasonably withheld. If a
visit to Customer's site is necessary, reasonable prior notification will be
given when access is required. Customer, at its expense, shall make the Products
accessible for repair or replacement and shall restore the site after Seller has
completed its repairs or replacement.
(e) Seller makes no warranty with respect to defective conditions or
non-conformities resulting from any of the following: Customers modifications,
misuse, neglect, accident or abuse; improper wiring, repairing, splicing,
alteration, installation, storage or maintenance; use in a manner not in
accordance with Sellers or its vendor's Specifications, or operating
instructions or failure of Customer to apply previously applicable Seller's
modifications or corrections. In addition, Seller makes no warranty with respect
to Products which have had their serial numbers or month and year of manufacture
removed, altered and with respect to expendable items, including, without
limitation, fuses, light bulbs, motor brushes and the like. No warranty is made
that Software will run uninterrupted or error free, and in addition Seller makes
no warranty with respect to defects related to Customer's data base errors.
(f) THE FOREGOING WARRANTIES ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER
EXPRESS AND IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED
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TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
CUSTOMER'S SOLE AND EXCLUSIVE REMEDY SHALL BE SELLER'S OBLIGATION TO REPAIR,
REPLACE, CREDIT, OR REFUND AS SET FORTH ABOVE IN THIS WARRANTY. 1.15 INFRINGEMENT:
(a) In the event of any claim, action, proceeding or suit by a third
party against Customer alleging an infringement of any United States patent,
United States copyright, or United States trademark, or a violation in the
United States of any trade secret or proprietary rights by reason of the use, in
accordance with Sellers Specifications, of any Product or Licensed Materials
furnished by Seller to Customer under this Agreement, Seller, at its expense,
will defend Customer, subject to the conditions and exceptions stated below.
Seller will reimburse Customer for any cost, expense or attorneys' fees,
incurred at Seller's written request or authorization, and will indemnify
Customer against any liability assessed against Customer by final judgment on
account of such infringement or violation arising out of such use.
(b) If Customer's use shall be enjoined or in Seller's opinion is
likely to be enjoined, Seller will, at its expense and at its option, either (1)
replace the enjoined Product or Licensed Materials furnished pursuant to this
Agreement with a suitable substitute free of any infringement; (2) modify it so
that it will be free of the infringement; or (3) procure for Customer a license
or other right to use it. If none of the foregoing options are practical, Seller
will remove the enjoined Product or Licensed Materials and refund to Customer
any amounts paid to Seller therefor less a reasonable charge for any actual
period of use by Customer.
(c) Customer shall give Seller prompt written notice of all such
claims, actions, proceedings or suits alleging infringement or violation and
Seller shall have full and complete authority to assume the sole defense
thereof, including appeals, and to settle same. Customer shall, upon Seller's
request and at Sellers expense, furnish all information and assistance available
to Customer and cooperate in every reasonable way to facilitate the defense
and/or settlement of any such claim, action, proceeding or suit.
(d) No undertaking of Seller under this section shall extend to any
such alleged infringement or violation to the extent that it: (1) arises from
adherence to design modifications, specifications, drawings, or written
instructions which Seller is directed by Customer to follow, but only if such
alleged infringement or violation does not reside in corresponding commercial
Product or Licensed Materials of Seller's design or selection; or (2) arises
from adherence to instructions to apply Customers trademark, trade name or other
company identification; or (3) resides in a product or licensed materials which
are not of Seller's origin and which are furnished by Customer to Seller for use
under this Agreement; or (4) relates to uses of Product or Licensed Materials
provided by Seller in combinations with other Product or Licensed Materials,
furnished either by Seller or others, which combination was not installed,
recommended or otherwise approved by Seller. In the foregoing cases numbered (1)
through (4), Customer will defend and save Seller harmless, subject to the same
terms and conditions and exceptions stated above, with respect to the Seller's
rights and obligations under this section.
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(e) The liability of Seller and Customer with respect to any and all
claims, actions, proceedings or suits by third parties alleging infringement of
patents, trademarks or copyrights or violation of trade secrets or proprietary
rights because of, or in connection with, any Products or Licensed Materials
furnished pursuant to this Agreement shall be limited to the specific
undertakings contained in this section.
1.16 CUSTOMER'S REMEDIES:
(a) CUSTOMER'S EXCLUSIVE REMEDIES AND THE ENTIRE LIABILITY OF SELLER,
ITS AFFILIATES AND THEIR EMPLOYEES, AND AGENTS, AND ITS SUPPLIERS FOR ANY CLAIM,
LOSS, DAMAGE, OR EXPENSE OF CUSTOMER OR ANY OTHER ENTITY ARISING OUT OF THIS
AGREEMENT, OR THE USE OR PERFORMANCE OF ANY PRODUCT, LICENSED MATERIALS, OR
SERVICES, WHETHER IN AN ACTION FOR OR ARISING OUT OF BREACH OF CONTRACT, TORT,
INCLUDING NEGLIGENCE, INDEMNITY, OR STRICT LIABILITY, SHALL BE AS FOLLOWS:
1) FOR INFRINGEMENT - THE REMEDY SET FORTH IN THE "INFRINGEMENT' SECTION;
2) FOR THE NON-PERFORMANCE OF PRODUCTS, SOFTWARE, AND SERVICES DURING
THE WARRANTY PERIOD - THE REMEDY SET FORTH IN THE APPLICABLE WARRANTY SECTION;
3) FOR TANGIBLE PROPERTY DAMAGE AND PERSONAL INJURY CAUSED BY SELLER'S
NEGLIGENCE - THE AMOUNT OF THE PROVEN DIRECT DAMAGES;
4) FOR EVERYTHING OTHER THAN AS SET FORTH ABOVE - THE AMOUNT OF THE
PROVEN DIRECT DAMAGES NOT TO EXCEED $100,000 PER OCCURRENCE INCLUDING AWARDED
COUNSEL FEES AND COSTS.
(b) NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, SELLER, ITS
AFFILIATES AND THEIR EMPLOYEES, AND AGENTS, AND ITS SUPPLIERS SHALL NOT BE
LIABLE FOR ANY INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES OR LOST PROFITS,
REVENUES OR SAVINGS ARISING OUT OF THIS AGREEMENT, OR THE USE OR PERFORMANCE OF
ANY PRODUCT, LICENSED MATERIALS, OR SERVICES, WHETHER IN AN ACTION FOR OR
ARISING OUT OF BREACH OF CONTRACT, TORT, INCLUDING NEGLIGENCE, OR STRICT
LIABILITY. THIS SECTION 1.16(B), SHALL SURVIVE FAILURE OF AN EXCLUSIVE OR
LIMITED REMEDY.
(c) CUSTOMER SHALL GIVE SELLER PROMPT WRITTEN NOTICE OF ANY CLAIM. ANY
ACTION OR PROCEEDING AGAINST SELLER MUST BE BROUGHT WITHIN TWENTY-FOUR (24)
MONTHS AFTER THE CAUSE OF ACTION ACCRUES.
- 13 - 1.17 INSURANCE:
Both parties shall maintain during the term of this Agreement the
following insurance coverage as well as other insurance required by law in the
jurisdictions where the work is performed: (1) Workers' Compensation and related
insurance as required by law; (2) employers liability insurance with a limit of
at least five hundred thousand ($500,000) dollars for each occurrence; (3)
Commercial General Liability (CGL) insurance with a limit of at least one
million dollars ($1,000,000) dollars per occurrence; and (4) automobile
liability insurance with a limit of at least one million ($1,000,000) dollars
for bodily injury, including death, to any one person. Each party shall furnish
prior to the start of work, if requested by the other, certificates of the
insurance required by this clause. Each party shall notify the other in writing
at least thirty (30) days prior to cancellation of or any material change in the
policy. Notwithstanding the above, Seller shall have the option where permitted
by law to self-retain any or all of the foregoing risks.
1.18 USE OF INFORMATION:
All technical and business information in whatever form recorded which
bears a legend or notice restricting its use, copying, or dissemination or, if
not in tangible form, is described as being proprietary or confidential at the
time of disclosure and is subsequently summarized in a writing so marked and
delivered to the receiving party within thirty (30) days of disclosure to the
receiving party (all hereinafter designated "Information") shall remain the
property of the furnishing party. The furnishing party grants the receiving
party the right to use such Information only for purposes expressly permitted in
this section. Such Information (1) shall not be reproduced or copied, in whole
or part, except for use as authorized in this Agreement; and (2) shall, together
with any full or partial copies thereof, be returned or destroyed when no longer
needed. Moreover, when Seller is the receiving party, Seller shall use such
Information only for the purpose of performing under this Agreement, and when
Customer is the receiving party, Customer shall use such Information only (1) to
order; (2) to evaluate Sellers Products, Licensed Materials and Services; or (3)
to install, operate and maintain the particular Products and Licensed Materials
for which it was originally furnished. Unless the furnishing party consents in
writing, such Information, except for that part, if any, which is known to the
receiving party free of any confidential obligation, or which becomes generally
known to the public through acts not attributable to the receiving party, shall
be held in confidence by the receiving party. The receiving party may disclose
such Information to other persons, upon the furnishing party's prior written
authorization, but solely to perform acts which this section expressly
authorizes the receiving party to perform itself and further provided such other
person agrees in writing (a copy of which writing will be provided to the
furnishing party at its request) to the same conditions respecting use of
Information contained in this section and to any other reasonable conditions
requested by the furnishing party. 1.19 DOCUMENTATION:
Seller shall furnish to Customer, at no additional charge, one (1) copy
of the documentation for Products and/or one (1) copy of the Related
Documentation for Software licensed to Customer. Such documentation shall be
that which is customarily provided by Seller to its Customers at no additional
charge. Such documentation shall be sufficient to enable
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Customer to operate and maintain such Products and Software in accordance with
Seller's Specifications. Such documentation shall be provided either prior to,
included with, or shortly after shipment of Products and/or Software from Seller
to Customer. Additional copies of such documentation are available at prices set
forth in Seller's Customer Price Lists. 1.20 NOTICES:
(a) Any notice, demand or other communication (other than an order)
required, or which may be given, under this Agreement shall, unless specifically
otherwise provided in this Agreement, be in writing and shall be given or made
by nationally recognized overnight courier service, confirmed facsimile, or
certified mail, return receipt requested and shall be addressed to the
respective parties as follows:
If to Seller:
Lucent Technologies Inc.
Global Commercial Markets
5440 Millstream Road, E2N32
I-85 & Mt. Hope Church Road
McLeansville, North Carolina 27301
Attn: Contract Manager
If to Customer:
Choice One Communication Inc.
333 West Commercial St., Suite 2500
East Rochester, NY 14445
Attn: Kevin Dickens, SVP Engineering and Operations
(b) Any such notice shall be effective upon receipt. Each party may
change its designated representative who is to receive communications and
notices and/or the applicable address for such communications and notices by
giving notice thereof to the other party provided herein.
1.21 FORCE MAJEURE:
Except for payment obligations, neither party shall be held responsible
for any delay or failure in performance to the extent that such delay or failure
is caused by fires, strikes, embargoes, explosions, earthquakes, floods, wars,
water, the elements, labor disputes, government requirements, civil or military
authorities, acts of God or by the public enemy, inability to secure raw
materials or transportation facilities, acts or omissions of carriers or
suppliers, or other causes beyond its control whether or not similar to theforegoing. 1.22 ASSIGNMENT:
Except as provided in this section, neither party shall assign this
Agreement or any right or interest under this Agreement, nor delegate any work
or obligation to be performed under this Agreement, (an "assignment') without
the other party's prior written consent. Any attempted
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assignment in contravention of this shall be void and ineffective. Nothing shall
preclude a party from employing a subcontractor in carrying out its obligations
under this Agreement. A party's use of such subcontractor shall not release the
party from its obligations under this Agreement. Notwithstanding the foregoing,
Seller has the right to assign this Agreement and to assign its rights and
delegate its duties under this Agreement, in whole or in part, at any time and
without Customer's consent, to any present or future subsidiary or "Affiliate"
of Seller or to any combination of the foregoing. Such assignment or delegation
shall release Seller from any further obligation or liability thereon. Seller
shall give Customer prompt written notice of the assignment. For the purposes of
this section, the term "Agreement" includes this Agreement, any subordinate
agreement placed under this Agreement and any order placed under this Agreement
or subordinated agreement.
1.23 TERMINATION OF AGREEMENT FOR BREACH:
In the event either party is in material breach or default of the terms
of this Agreement and such breach or default continues for a period of ten (10)
days with respect to payment obligations or thirty (30) days with respect to any
other obligations after the receipt of written notice from the other party, then
the party not in breach or default shall have the right to terminate this
Agreement without any charge, obligation or liability except for Products or
Licensed Materials already delivered and Services already performed. The party
not in breach or default shall provide full cooperation to the other party in
every reasonable way to facilitate the, remedy of the breach or default
hereunder within the applicable cure period. Notwithstanding the foregoing, if
the nature of the material breach or default is such that it is not a payment
obligation and it is incapable of cure within the foregoing thirty (30) day
period, then the thirty (30) day cure period may be extended for a reasonable
period of time (in no event to exceed an additional thirty (30) days), provided
that the party in breach or default is proceeding diligently and in good faith
to effectuate a cure. 1.24 ARBITRATION:
If a dispute arises out of or relates to this Agreement, or its breach,
the parties agree to escalate such dispute to their respective senior executives
for good faith negotiations seeking a mutually agreeable resolution. This demand
for escalation shall be in writing and notice shall be served in accordance with
the notice provision of this Agreement. If the dispute is not resolved through
such escalation within fifteen (15) days after the date of escalation, either
party shall have the right to submit the dispute to a sole mediator selected by
the parties or, at any time at the option of a party, to mediation by the
American Arbitration Association (AAN). If not thus resolved, it shall be
referred to a sole arbitrator selected by the parties within thirty (30) days of
the mediation or, in the absence of such selection, to AAA arbitration which
shall be governed by the United States Arbitration Act, and judgment on the
award may be entered in any court having jurisdiction. The arbitrator may
determine issues of arbitrability, but may not award punitive damages or limit,
expand or otherwise modify the terms of this Agreement. The parties, their
representatives, other participants and the mediator and arbitrator shall hold
the existence, content and result of mediation and arbitration in confidence,
except as such disclosure may be necessary for the purpose of recording or
otherwise acting upon the arbitrator's award.
- 16 - 1.25 NON-SOLICITATION:
During the term of this Agreement and for a period of one (1) year from
the termination of this Agreement or a Statement of Work, the parties agree not
to employ, make an offer of employment to, or enter into a consulting
relationship with any employee, subcontractors or consultant of the other party
who is directly involved with the delivery of Services under this Agreement,
except upon the prior written consent of the affected party.
1.26 INDEPENDENT CONTRACTOR:
All work performed by either party under this Agreement shall, be
performed as an independent contractor and not as an agent of the other, and no
persons furnished by the performing party shall be considered the employees or
agents of the other.
1.27 RELEASES VOID:
Neither party shall require releases or waivers of any personal rights
from representatives or employees of the other in connection with visits to its
premises, nor shall such parties plead such releases or waivers in any action orproceeding.
1.28 PUBLICITY:
Neither party shall issue or release for publication any articles,
advertising, or publicity material relating to Products, Licensed Materials, or
Services under this Agreement or mentioning or implying the name, trademarks,
logos, trade name, service mark or other company identification of the other
party or any of its Affiliates or any of its personnel without the prior written
consent of the other party.
1.29 CONFIDENTIALITY OF AGREEMENT:
Notwithstanding the obligations contained in Section 1.17 (Use of
Information) of this Agreement the parties shall keep all provisions of this
Agreement and any order submitted hereunder (including, without limitation,
prices and pricing related information) confidential except as reasonably
necessary for performance by the parties hereunder and except to the extent
disclosure may be required by applicable laws or regulations, in which latter
case, the party required to make such disclosure shall promptly inform the other
prior to such disclosure in sufficient time to enable such other party to make
known any objections it may have to such disclosure. The disclosing party shall
take all reasonable steps and exercise all reasonable efforts directed by Seller
to secure a protective order, seek confidential treatment, or otherwise assure
that this Agreement and/or any order will be withheld from the public record. 1.30 AMENDMENTS:
Any supplement, modification or waiver of any provision of this
Agreement must be in writing and signed by authorized representatives of bothparties.
- 17 - 1.31 SEVERABILITY:
If any portion of this Agreement is found to be invalid or
unenforceable, the parties agree that the remaining portions shall remain in
effect. The parties further agree that in the event such invalid or
unenforceable portion is an essential part of this Agreement, they will
immediately begin negotiations for a replacement. 1.32 WAIVER:
If either party fails to enforce any right or remedy available under
this Agreement, that failure shall not be construed as a waiver of any right or
remedy with respect to any other breach or failure by the other party. 1.33 SURVIVAL:
The fights and obligations of the parties which by their nature would
continue beyond the termination, cancellation, or expiration of this Agreement,
shall survive such termination, cancellation or expiration.
1.34 SECTION HEADINGS:
The section headings in this Agreement are inserted for convenience
only and are not intended to affect the meaning or interpretation of this Agreement.
1.35 CHOICE OF LAW:
The construction and interpretation of, and the rights and obligations
of the parties pursuant to this Agreement, shall be governed by the laws of the
State of New York without regard to its conflict of laws. provision. 1.36 AMBIGUITIES:
The parties represent that they are sophisticated businesses with
access to their own legal, financial and business advisors and that each party
has had the opportunity to consult with advisors of their own choosing before
entering into this Agreement. The parties therefore acknowledge and agree that
the rule of law that ambiguities are construed against the drafter shall not
apply to the interpretation of this Agreement.
ARTICLE II
PROVISIONS APPLICABLE TO LICENSED MATERIALS
2.1 LICENSE FOR LICENSED MATERIALS:
(a) Upon delivery of Licensed Materials pursuant to this Agreement,
Seller grants to Customer a personal, nontransferable, and nonexclusive license
to Use Licensed Materials on a Designated Processor in the United States for its
own business operations. No license is granted
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to Customer to Use the Licensed. Materials outside the United States or to
sublicense such Licensed Materials furnished by Seller. Customer shall not
reverse engineer, decompile or disassemble Software furnished as, object code to
generate corresponding Source Code. Unless otherwise agreed in writing by
Seller, Customer, shall
