Acceptance Testing. 4.2.1 Seller shall test the Backhaul and Wavelength(s) using procedures in accordance with industry standards (“Acceptance Testing”) to verify that such Backhaul is operating in accordance with the Technical Specifications set forth in Exhibit B and that such Wavelength(s) are operating in accordance with the Technical Specifications set forth in Exhibit C. Seller shall provide Purchaser with five (5) Business Days’ prior written notice (which notice may be sent by facsimile or e-mail in this case only) of the date and time of each applicable test. 4.2.2 After the successful conclusion of the Acceptance Testing conducted by Seller with respect to the Backhaul or Wavelength(s), Seller shall provide Purchaser with an electronic notice that the Backhaul or the applicable Wavelength(s), as applicable, is available for use (“Turn Up Acknowledgement” or “TUA”). 4.2.3 After receipt by Purchaser from Seller of the TUA, Purchaser shall have five (5) Business Days to conduct its own Acceptance Testing to verify that it is operating in accordance with the applicable Testing Specifications (“Testing Period”). If Purchaser determines that such test results show that the Backhaul or Wavelength(s) or any portion thereof do not meet the applicable Testing Specifications, Purchaser shall, within the Testing Period, notify Seller’ Service Delivery Department in writing that the Capacity does not comply with the Testing Specifications, and, if, upon investigation, such non-compliance is due solely to Seller’ fault, then Seller shall correct the non-compliance as set forth in Section 3.1.3 below. 4.2.4 In the event Purchaser notifies Seller within the time periods set forth in Section 4.2.2 that the Backhaul or Wavelength(s), or any portion thereof is not operating within the parameters of the applicable Testing Specifications, Seller shall expeditiously take such action as shall be necessary with respect to such portion of the Backhaul or Wavelength(s) to bring the operating standards of such portion of the Backhaul or Wavelength(s) into compliance, after which such portion of the Backhaul or Wavelength(s) shall be re-tested in accordance with the provisions of this Section 4. After taking such actions and re-testing, Seller shall provide Purchaser with a re-tested TUA and Purchaser shall again have all rights provided in this Section 4. 4.2.5 The cycle described above of testing, taking corrective action and re-testing shall take place a maximum of two (2) times as necessary to ensure that such portion of the Backhaul or Wavelength(s) operates within the parameters of the applicable Testing Specifications. Following the second such attempt by the parties to agree on the Acceptance Testing results, if Purchaser asserts that the test results demonstrate the Backhaul or Wavelength(s), or any portion thereof, does not meet the applicable Testing Specifications (“Compliancy”), both parties shall choose an independent engineer to establish whether the test results establish Compliancy or not. If the independent engineer confirms Compliancy, Purchaser shall be deemed to have accepted the Backhaul or Wavelength(s) and reimburse Seller for the actual cost of the independent engineer and the actual internal and out-of-pocket costs of extra testing. If the independent engineer confirms Purchaser’s test results, Seller will complete expeditiously the corrective action necessary to achieve Compliancy and pay for the actual cost of the independent engineer and for the actual internal and out-of-pocket costs incurred by Purchaser for such extra testing. 4.2.6 In the event Purchaser does not object to the results of any of Seller’ Acceptance Testing or its own Acceptance Testing within the time periods specified in Section 4.2.3, Purchaser shall be deemed to have accepted the Backhaul or Wavelength(s) as of the first day following the end of such period. The date on which Purchaser issues its notice accepting the Backhaul or Wavelength(s), or on which it is deemed to accept the Backhaul or Wavelength(s), as the case may be, under this *** Portions hereof have been omitted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment in accordance with Rule 406.
Appears in 2 contracts
Sources: Capacity Purchase Agreement, Capacity Purchase Agreement (Teleglobe International Holdings LTD)
Acceptance Testing. 4.2.1 Seller shall test the Backhaul 14.1 On completion of Installation of Equipment furnished and Wavelength(s) using procedures in accordance with industry standards (“Acceptance Testing”) to verify that such Backhaul is operating in accordance with the Technical Specifications set forth in Exhibit B and that such Wavelength(s) are operating in accordance with the Technical Specifications set forth in Exhibit C. installed by Seller, Seller shall provide Purchaser with Buyer five (5) Business Days’ days prior written notice (which notice may be sent by facsimile notification that such Equipment is ready for Commissioning. Following such notification, Buyer agrees to have a representative present to witness and acknowledge completion of such testing. Seller or e-mail in this case only) of the date and time of each applicable test.
4.2.2 After the successful conclusion of the Acceptance Testing conducted by Seller with respect to the Backhaul or Wavelength(s), Seller shall provide Purchaser with an electronic notice that the Backhaul or the applicable Wavelength(s)Seller's subcontractor, as applicable, is available for use (“Turn Up Acknowledgement” or “TUA”).
4.2.3 After receipt by Purchaser from Seller of shall test the TUA, Purchaser shall have five (5) Business Days to conduct its own Acceptance Testing to verify that it is operating Equipment in accordance with its standard testing procedures to determine Equipment conformity with the standards and specifications (hereinafter "Commissioning Criteria") of the applicable Testing Specifications Seller installation manuals, as may be amended from time to time.
14.2 On the date that such Commissioning has been successfully completed, Seller shall turn the Equipment over to Buyer (“Testing Period”"Turnover"). If Purchaser determines that On the date of Turnover, Buyer shall complete and return to Seller the "Turnover Notice" as described in Annex 3.
14.3 For purposes of this Agreement, the occurrence of any of the following shall be deemed to constitute "Acceptance" of the Equipment:
14.3.1 Within ten (10) days following the date of Turnover, Buyer shall either accept the Equipment in writing as provided in Annex 3, "Acceptance Notice," or notify Seller in writing specifying in reasonable detail those particulars in which the Equipment does not meet the Commissioning Criteria. With respect to any such test results show that particulars, Seller shall promptly proceed to take corrective action, and following correction, Buyer shall accept the Backhaul Equipment in writing.
14.3.2 The failure of Buyer to notify Seller within ten (10) days after Turnover (or, in the case of correction, ten [10] days following such correction) of any particulars in which the Equipment does not meet the Commissioning Criteria, or Wavelength(s) the use by Buyer of the Equipment or any portion thereof do not meet the applicable Testing Specificationsin revenue-producing service at any time, Purchaser shall, within the Testing Period, notify Seller’ Service Delivery Department in writing that the Capacity does not comply with the Testing Specifications, and, if, upon investigation, such non-compliance is due solely to Seller’ fault, then Seller shall correct the non-compliance as set forth in Section 3.1.3 below.
4.2.4 In the event Purchaser notifies Seller within the time periods set forth in Section 4.2.2 that the Backhaul or Wavelength(s), or any portion thereof is not operating within the parameters of the applicable Testing Specifications, Seller shall expeditiously take such action as shall be necessary with respect to such portion of the Backhaul or Wavelength(s) to bring the operating standards of such portion of the Backhaul or Wavelength(s) into compliance, after which such portion of the Backhaul or Wavelength(s) shall be re-tested in accordance with the provisions of this Section 4. After taking such actions and re-testing, Seller shall provide Purchaser with a re-tested TUA and Purchaser shall again have all rights provided in this Section 4.
4.2.5 The cycle described above of testing, taking corrective action and re-testing shall take place a maximum of two (2) times as necessary to ensure that such portion of the Backhaul or Wavelength(s) operates within the parameters of the applicable Testing Specifications. Following the second such attempt by the parties to agree on the Acceptance Testing results, if Purchaser asserts that the test results demonstrate the Backhaul or Wavelength(s), or any portion thereof, does not meet the applicable Testing Specifications (“Compliancy”), both parties shall choose an independent engineer to establish whether the test results establish Compliancy or not. If the independent engineer confirms Compliancy, Purchaser shall be deemed to have accepted the Backhaul or Wavelength(s) and reimburse Seller for the actual cost of the independent engineer and the actual internal and out-of-pocket costs of extra testing. If the independent engineer confirms Purchaser’s test results, Seller will complete expeditiously the corrective action necessary to achieve Compliancy and pay for the actual cost of the independent engineer and for the actual internal and out-of-pocket costs incurred by Purchaser for such extra testing.
4.2.6 In the event Purchaser does not object to the results of any of Seller’ Acceptance Testing or its own Acceptance Testing within the time periods specified in Section 4.2.3, Purchaser shall be deemed to have accepted the Backhaul or Wavelength(s) as of the first day following the end of such period. The date on which Purchaser issues its notice accepting the Backhaul or Wavelength(s), or on which it is deemed to accept the Backhaul or Wavelength(s), as the case may be, under this *** Portions hereof have been omitted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment in accordance with Rule 406Equipment.
Appears in 2 contracts
Sources: Additional Affiliate Supply Agreement (Ipcs Equipment Inc), Additional Affiliate Supply Agreement (Ipcs Equipment Inc)
Acceptance Testing. 4.2.1 Seller shall test the Backhaul and Wavelength(s(a) using procedures in accordance with industry standards (“Upon installation of each Software Deliverable, Acceptance Testing”) to verify that such Backhaul is operating in accordance with the Technical Specifications Tests will be conducted as set forth in Exhibit B this Section 9.1 to ensure the Software Deliverable, including all Software and that Documentation, conforms to the requirements of this Contract, including the applicable Specifications and, in the case of the Software, the Documentation.
(b) All Acceptance Tests will take place at the designated Site(s) in the Operating Environment described in the Statement of Work for the Software Deliverable, commence on the Business Day following installation of such Wavelength(sSoftware Deliverable and be conducted diligently for up to thirty (30) are operating in accordance with the Technical Specifications Business Days, or such other period as may be set forth in Exhibit C. Seller shall provide Purchaser with five the Statement of Work (5) Business Days’ prior written notice (which notice may be sent by facsimile or e-mail in this case only) of the date and time of each applicable test.
4.2.2 After the successful conclusion of the Acceptance Testing conducted by Seller with respect to the Backhaul or Wavelength(s), Seller shall provide Purchaser with an electronic notice that the Backhaul or the applicable Wavelength(s), as applicable, is available for use (“Turn Up Acknowledgement” or “TUA”).
4.2.3 After receipt by Purchaser from Seller of the TUA, Purchaser shall have five (5) Business Days to conduct its own Acceptance Testing to verify that it is operating in accordance with the applicable Testing Specifications (“Testing Period”). If Purchaser determines that such test results show that Acceptance Tests will be conducted by the Backhaul or Wavelength(s) or any portion thereof do not meet the applicable Testing Specifications, Purchaser shall, within the Testing Period, notify Seller’ Service Delivery Department in writing that the Capacity does not comply with the Testing Specifications, and, if, upon investigation, such non-compliance is due solely to Seller’ fault, then Seller shall correct the non-compliance party responsible as set forth in Section 3.1.3 belowthe Statement of Work or, if the Statement of Work does not specify, the State, provided that:
(i) for Acceptance Tests conducted by the State, if requested by the State, Contractor will make suitable Contractor Personnel available to observe or participate in such Acceptance Tests; and
(ii) for Acceptance Tests conducted by Contractor, the State has the right to observe or participate in all or any part of such Acceptance Tests. Contractor is solely responsible for all Contractor’s costs and expenses related to Contractor’s performance of, participation in, and observation of Acceptance Testing.
4.2.4 In (c) Upon delivery and installation of the event Purchaser notifies Seller within Aggregate Software under the time periods Statement of Work, additional Acceptance Tests will be performed on the Aggregate Software as a whole to ensure full operability, integration, and compatibility among all elements of the Aggregate Software (“Integration Testing”). Integration Testing is subject to all procedural and other terms and conditions set forth in Section 4.2.2 that 9.1, Section 9.3, and Section 9.4.
(d) The State may suspend Acceptance Tests and the Backhaul corresponding Testing Period by written notice to Contractor if the State discovers a material Non-Conformity in the tested Software Deliverable or Wavelength(s)part or feature of such Software Deliverable. In such event, or Contractor will immediately, and in any portion thereof is not operating case within ten (10) Business Days, correct such Non-Conformity, whereupon the parameters Acceptance Tests and Testing Period will resume for the balance of the applicable Testing Specifications, Seller shall expeditiously take such action as shall be necessary with respect to such portion of the Backhaul or Wavelength(s) to bring the operating standards of such portion of the Backhaul or Wavelength(s) into compliance, after which such portion of the Backhaul or Wavelength(s) shall be re-tested in accordance with the provisions of this Section 4. After taking such actions and re-testing, Seller shall provide Purchaser with a re-tested TUA and Purchaser shall again have all rights provided in this Section 4Period.
4.2.5 The cycle described above of testing, taking corrective action and re-testing shall take place a maximum of two (2) times as necessary to ensure that such portion of the Backhaul or Wavelength(s) operates within the parameters of the applicable Testing Specifications. Following the second such attempt by the parties to agree on the Acceptance Testing results, if Purchaser asserts that the test results demonstrate the Backhaul or Wavelength(s), or any portion thereof, does not meet the applicable Testing Specifications (“Compliancy”), both parties shall choose an independent engineer to establish whether the test results establish Compliancy or not. If the independent engineer confirms Compliancy, Purchaser shall be deemed to have accepted the Backhaul or Wavelength(s) and reimburse Seller for the actual cost of the independent engineer and the actual internal and out-of-pocket costs of extra testing. If the independent engineer confirms Purchaser’s test results, Seller will complete expeditiously the corrective action necessary to achieve Compliancy and pay for the actual cost of the independent engineer and for the actual internal and out-of-pocket costs incurred by Purchaser for such extra testing.
4.2.6 In the event Purchaser does not object to the results of any of Seller’ Acceptance Testing or its own Acceptance Testing within the time periods specified in Section 4.2.3, Purchaser shall be deemed to have accepted the Backhaul or Wavelength(s) as of the first day following the end of such period. The date on which Purchaser issues its notice accepting the Backhaul or Wavelength(s), or on which it is deemed to accept the Backhaul or Wavelength(s), as the case may be, under this *** Portions hereof have been omitted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment in accordance with Rule 406.
Appears in 2 contracts
Sources: Custom Software Development Contract, Custom Software Development Contract
Acceptance Testing. 4.2.1 Seller shall test the Backhaul and Wavelength(s) using procedures in accordance with industry standards (“Acceptance Testing”) to verify that such Backhaul is operating in accordance with the Technical Specifications set forth in Exhibit B and that such Wavelength(s) are operating in accordance with the Technical Specifications set forth in Exhibit C. Seller shall provide Purchaser with five (5) Business Days’ prior written notice (which notice may be sent by facsimile or e-mail in this case only) of the date and time of each applicable test.
4.2.2 After the successful conclusion of the Acceptance Testing conducted by Seller with respect to the Backhaul or Wavelength(s), Seller shall provide Purchaser with an electronic notice that the Backhaul or the applicable Wavelength(s), as applicable, is available for use (“Turn Up Acknowledgement” or “TUA”).
4.2.3 After receipt by Purchaser from Seller of the TUA, Purchaser shall have five (5) Business Days to conduct its own Acceptance Testing to verify that it is operating in accordance with the applicable Testing Specifications (“Testing Period”). If Purchaser determines that such test results show that the Backhaul or Wavelength(s) or any portion thereof do not meet the applicable Testing Specifications, Purchaser shall, within the Testing Period, notify Seller’ Service Delivery Department in writing that the Capacity does not comply with the Testing Specifications, and, if, upon investigation, such non-compliance is due solely to Seller’ fault, then Seller shall correct the non-compliance as set forth in Section 3.1.3 below.
4.2.4 In the event Purchaser notifies Seller within the time periods set forth in Section 4.2.2 that the Backhaul or Wavelength(s), or any portion thereof is not operating within the parameters of the applicable Testing Specifications, Seller shall expeditiously take such action as shall be necessary with respect to such portion of the Backhaul or Wavelength(s) to bring the operating standards of such portion of the Backhaul or Wavelength(s) into compliance, after which such portion of the Backhaul or Wavelength(s) shall be re-tested in accordance with the provisions of this Section 4. After taking such actions and re-testing, Seller shall provide Purchaser with a re-tested TUA and Purchaser shall again have all rights provided in this Section 4.
4.2.5 The cycle described above of testing, taking corrective action and re-testing shall take place a maximum of two (2) times as necessary to ensure that such portion of the Backhaul or Wavelength(s) operates within the parameters of the applicable Testing Specifications. Following the second such attempt by the parties to agree on the Acceptance Testing results, if Purchaser asserts that the test results demonstrate the Backhaul or Wavelength(s), or any portion thereof, does not meet the applicable Testing Specifications (“Compliancy”), both parties shall choose an independent engineer to establish whether the test results establish Compliancy or not. If the independent engineer confirms Compliancy, Purchaser shall be deemed to have accepted the Backhaul or Wavelength(s) and reimburse Seller for the actual cost of the independent engineer and the actual internal and out-of-pocket costs of extra testing***. If the independent engineer confirms Purchaser’s test results, Seller will complete expeditiously the corrective action necessary to achieve Compliancy and pay for the actual cost of the independent engineer and for the actual internal and out-of-pocket costs incurred by Purchaser for such extra testing.
4.2.6 In the event Purchaser does not object to the results of any of Seller’ Acceptance Testing or its own Acceptance Testing within the time periods specified in Section 4.2.3, Purchaser shall be deemed to have accepted the Backhaul or Wavelength(s) as of the first day following the end of such period. The date on which Purchaser issues its notice accepting the Backhaul or Wavelength(s), or on which it is deemed to accept the Backhaul or Wavelength(s), as the case may be, under this *** Portions hereof have been omitted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment in accordance with Rule 406.
Appears in 2 contracts
Sources: Capacity Purchase Agreement (Teleglobe International Holdings LTD), Capacity Purchase Agreement (Teleglobe Bermuda Holdings LTD)
Acceptance Testing. 4.2.1 Seller 4.1 All Licensed Software shall test the Backhaul and Wavelength(s) using procedures in accordance with industry standards (“Acceptance Testing”) to verify that such Backhaul is operating be tested in accordance with the Technical Specifications set forth in Exhibit B terms of this Clause 4 to determine whether it is fully operate, meets all applicable specifications and that such Wavelength(s) are operating will function in accordance with the Technical Specifications set forth in Exhibit C. Seller shall provide Purchaser with five Documentation when properly installed and used for its intended purpose on the Licensee’s Systems (5) Business Days’ prior written notice (which notice may be sent by facsimile or e-mail in this case only) of the date and time of each applicable test.
4.2.2 After the successful conclusion of the “Acceptance Testing conducted by Seller with respect to the Backhaul or Wavelength(s), Seller shall provide Purchaser with an electronic notice that the Backhaul or the applicable Wavelength(s), as applicable, is available for use (“Turn Up Acknowledgement” or “TUATests”).
4.2.3 After receipt by Purchaser from Seller 4.2 Upon the delivery of the TUALicensed Software, Purchaser the Licensee shall have five conduct all Acceptance Tests to determine whether, and the extent to which:
(5a) the Licensed Software conforms to the requirements of this Agreement, including the full operability, integration, interoperability and compatibility of the Licensed Software with the components and functions of the Licensee’s Systems in accordance with the Documentation; and
(b) the Documentation effectively supports the Licensed Software, is complete and free of any deficiencies.
4.3 All Acceptance Tests shall:
(a) begin with a commercially reasonable time following delivery of the Licensed Software; and
(b) be conducted by the Licensee for up to one-hundred and eighty (180) days from the date of the Licensee’s receipt of the Licensed Software (the “Testing Period”).
4.4 The Licensee may suspend the Acceptance Tests and the corresponding Test Period by written notice to the Licensor if the Licensee discovers a Nonconformity in the tested Licensed Software or part or feature thereof. In such event, the Licensor shall immediately, and in any case within ten (10) Business Days, correct such Nonconformity, whereupon the Acceptance Tests and Testing Period shall resume for the balance of the Testing Period.
4.5 Within ten (10) Business Days following the completion of any Acceptance Tests, the Licensee shall prepare and provide to conduct its own the other party written notice of the completion of the tests. Such notice shall include a report describing in reasonable detail the tests conducted and the results thereof, including any uncorrected Nonconformity in the tested Licensed Software (a “Nonconformance Notice”). If such notice identifies any Nonconformities, the parties’ rights, remedies and obligations will be as set forth in Clauses 4.6 and 4.7. If such notice provided by the Licensee identifies no Nonconformities, such notice shall constitute the Licensee’s Acceptance Testing to verify that it is operating of the tested Licensed Software.
4.6 If the Acceptance Tests identify any Nonconformities, the Licensor, at the Licensor’s sole cost and expense, shall remedy all such Nonconformities and redeliver the Licensed Software, in accordance with the applicable Testing Specifications (“Testing Period”). If Purchaser determines that such test results show that requirements of this Agreement and the Backhaul or Wavelength(s) or Documentation as promptly as commercially possible and, in any portion thereof do not meet the applicable Testing Specifications, Purchaser shallcase, within ten (10) days following its receipt of the Testing PeriodLicensee’s Nonconformance Notice.
4.7 If Acceptance Tests identify any Nonconformity in any Licensed Software after a second or subsequent delivery thereof, notify Seller’ Service Delivery Department or the Licensor fails to redeliver any Licensed Software on a timely basis, the Licensee may, in writing that its sole discretion, by written notice to the Capacity does not comply with Licensor:
(a) continue the Testing Specifications, and, if, upon investigation, such non-compliance is due solely to Seller’ fault, then Seller shall correct the non-compliance as process set forth in Section 3.1.3 belowthis Clause 4; or
(b) accept the nonconforming Licensed Software, in which case the Issued Shares shall be reduced equitably to reflect the value of the Licensed Software as received relative to the value of the Licensed Software had it conformed to the requirements and specifications of this Agreement and the Documentation; or
(c) deem the failure to be a non-curable material breach of this Agreement and terminate this Agreement pursuant to Clause 12.3.
4.2.4 In the event Purchaser notifies Seller within the time periods set forth in Section 4.2.2 that the Backhaul or Wavelength(s), or any portion thereof is not operating within the parameters 4.8 Acceptance of the applicable Testing SpecificationsLicensed Software (“Acceptance”) shall occur, Seller shall expeditiously take if at all, on the date that is the earlier of:
(a) the Licensee’s delivery of a notice accepting such action as shall be necessary with respect Licensed Software pursuant to such portion Clause 4.5; or
(b) ten (10) Business Days after the expiration of the Backhaul Testing Period if the Licensee has not notified the Licensor of one or Wavelength(s) to bring the operating standards of such portion of the Backhaul or Wavelength(s) into compliance, after which such portion of the Backhaul or Wavelength(s) shall be re-tested in accordance with the provisions of this Section 4. After taking such actions and re-testing, Seller shall provide Purchaser with a re-tested TUA and Purchaser shall again have all rights provided in this Section 4more Nonconformities prior thereto.
4.2.5 The cycle described above of testing, taking corrective action and re-testing shall take place a maximum of two (2) times as necessary to ensure that such portion of the Backhaul or Wavelength(s) operates within the parameters of the applicable Testing Specifications. Following the second such attempt by the parties to agree on the Acceptance Testing results, if Purchaser asserts that the test results demonstrate the Backhaul or Wavelength(s), or any portion thereof, does not meet the applicable Testing Specifications (“Compliancy”), both parties shall choose an independent engineer to establish whether the test results establish Compliancy or not. If the independent engineer confirms Compliancy, Purchaser shall be deemed to have accepted the Backhaul or Wavelength(s) and reimburse Seller for the actual cost of the independent engineer and the actual internal and out-of-pocket costs of extra testing. If the independent engineer confirms Purchaser’s test results, Seller will complete expeditiously the corrective action necessary to achieve Compliancy and pay for the actual cost of the independent engineer and for the actual internal and out-of-pocket costs incurred by Purchaser for such extra testing.
4.2.6 In the event Purchaser does not object to the results of any of Seller’ Acceptance Testing or its own Acceptance Testing within the time periods specified in Section 4.2.3, Purchaser shall be deemed to have accepted the Backhaul or Wavelength(s) as of the first day following the end of such period. The date on which Purchaser issues its notice accepting the Backhaul or Wavelength(s), or on which it is deemed to accept the Backhaul or Wavelength(s), as the case may be, under this *** Portions hereof have been omitted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment in accordance with Rule 406.
Appears in 2 contracts
Sources: License Agreement (Sharing Economy International Inc.), License Agreement (Sharing Economy International Inc.)
Acceptance Testing. 4.2.1 Seller 9.01 Grantor shall test the Backhaul Grantee Fibers and Wavelength(s) using procedures in accordance with industry standards (“Acceptance Testing”) to verify that such Backhaul is operating the Grantee Conduit in accordance with the Technical Specifications procedures and standards specified in Exhibit "J" ("Acceptance Testing"). Acceptance Testing shall progress span by span along each Segment as cable splicing progresses or, in the case of the Grantee Conduit, as set forth in Exhibit B and "J", so that such Wavelength(s) are operating test results may be reviewed in accordance with the Technical Specifications set forth in Exhibit C. Seller a timely manner. Grantor shall provide Purchaser Grantee with five (5) Business Days’ at least 14 days' prior written notice (which notice may be sent by facsimile or e-mail in this case only) of the date and time of each applicable testAcceptance Testing and Grantee shall have the right, but not the obligation, to be present to observe the Acceptance Testing.
4.2.2 After 9.02 When Grantor reasonably determines the successful conclusion Grantee Fibers and the Grantee Conduit with respect to an entire Segment are installed and operating in conformity with the applicable specifications set forth in Exhibits "G", "H", and "J", and Grantor is otherwise in compliance with the other provisions of this Agreement with respect to such Segment, Grantor shall provide written notice of same to Grantee (a "Completion Notice"), together with a copy of the results of the Acceptance Testing conducted by Seller with respect to the Backhaul or Wavelength(s)for such Segment. Grantee shall, Seller shall provide Purchaser with an electronic notice that the Backhaul or the applicable Wavelength(s), as applicable, is available for use within fifteen (“Turn Up Acknowledgement” or “TUA”).
4.2.3 After 15) days of receipt by Purchaser from Seller of the TUACompletion Notice, Purchaser shall have five either accept or reject the Completion Notice (5) Business Days to conduct its own specifying, if rejected, the defect or failure in such Acceptance Testing and/or the items required to verify that it is operating be remedied and/or replaced in accordance order for such Segment to be in conformity with the applicable Testing Specifications (“Testing Period”). If Purchaser determines that such test results show that the Backhaul or Wavelength(s) or any portion thereof do not meet the applicable Testing Specifications, Purchaser shall, within the Testing Period, notify Seller’ Service Delivery Department in writing that the Capacity does not comply with the Testing Specifications, and, if, upon investigation, such non-compliance is due solely to Seller’ fault, then Seller shall correct the non-compliance as specifications set forth in Section 3.1.3 below.
4.2.4 Exhibit "J" and other provisions of this Agreement) by delivery of written notice to Grantor. In the event Purchaser notifies Seller within Grantee rejects the time periods set forth in Section 4.2.2 that Completion Notice, Grantor shall promptly, and at no cost to Grantee, commence to remedy the Backhaul defect or Wavelength(s)failure. Thereafter, or any portion thereof is not operating within the parameters of the applicable Testing Specifications, Seller Grantor shall expeditiously take such action as shall be necessary again give Grantee a Completion Notice with respect to such portion of the Backhaul Segment. The foregoing procedure shall apply again and successively thereafter until Grantor has remedied all defects or Wavelength(s) failures. Any failure by Grantee to bring the operating standards of such portion of the Backhaul or Wavelength(s) into compliance, after which such portion of the Backhaul or Wavelength(s) timely reject a Completion Notice shall be re-tested in accordance with the provisions deemed to constitute acceptance for purposes of this Section 4. After taking such actions Agreement, and re-testing, Seller shall provide Purchaser with a re-tested TUA and Purchaser shall again have all rights provided in this Section 4.
4.2.5 The cycle described above of testing, taking corrective action and re-testing shall take place a maximum of two (2) times as necessary to ensure that such portion of the Backhaul or Wavelength(s) operates within the parameters of the applicable Testing Specifications. Following the second such attempt by the parties to agree on the Acceptance Testing results, if Purchaser asserts that the test results demonstrate the Backhaul or Wavelength(s), or any portion thereof, does not meet the applicable Testing Specifications (“Compliancy”), both parties shall choose an independent engineer to establish whether the test results establish Compliancy or not. If the independent engineer confirms Compliancy, Purchaser event Grantee shall be deemed to have accepted delivered a notice of acceptance on the Backhaul or Wavelength(s) and reimburse Seller for the actual cost thirtieth day after delivery of the independent engineer Completion Notice. The successful completion of Acceptance Testing, and the actual internal and out-of-pocket costs occurrence of extra testing. If the independent engineer confirms Purchaser’s test resultsan Acceptance Date, Seller will complete expeditiously the corrective action necessary to achieve Compliancy and pay for the actual cost of the independent engineer and for the actual internal and out-of-pocket costs incurred by Purchaser for such extra testing.
4.2.6 In the event Purchaser does not object with respect to the results of any of Seller’ Acceptance Testing or its own Acceptance Testing within Grantee Fibers and the time periods specified in Section 4.2.3, Purchaser shall be deemed to have accepted the Backhaul or Wavelength(s) as of the first day following the end of such period. The date on which Purchaser issues its notice accepting the Backhaul or Wavelength(s), or on which it is deemed to accept the Backhaul or Wavelength(s), as the case may be, under this *** Portions hereof have been omitted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment Grantee Conduit in accordance with Rule 406this Article 9 shall not relieve Grantor of its obligation to repair defects in the Grantor System in accordance with Section 12.02.
Appears in 2 contracts
Sources: Cost Sharing and Iru Agreement (Nextlink Communications Inc / De), Cost Sharing and Iru Agreement (Level 3 Communications Inc)
Acceptance Testing. 4.2.1 Seller shall GVI will test and evaluate the Backhaul Technology (the “Alpha Test”) promptly after the delivery of the Development (as defined in the Option Agreement) to GVI (the “Delivery Date”). After finishing the Alpha Test, GVI may, at its option and Wavelength(s) using procedures in accordance with industry standards upon notice to Omeon, conduct additional tests (the “Beta Test”), for purposes of determining whether the Development conforms to the Specifications (collectively, the Alpha Test and Beta Test to be referred as the “Acceptance TestingTests”). The total period for the Acceptance Tests shall last no more that seventy five (75) days. In the event that such Acceptance Tests reveal any nonconformity of the Development with respect to the Specifications, GVI will promptly notify PNVR, and PNVR will immediately thereafter undertake to modify the Technology to correct any such nonconformity with respect to the Specifications, and will provide GVI with a corrective action plan within ten (10) days of receipt of GVI’s notice of nonconformity. The corrective action plan shall identify a reasonable time period (the “Corrective Period”) for PNVR to verify that complete the corrective measures and deliver the corrected Technology to GVI. PNVR will deliver and/or install any such Backhaul is operating corrected Technology, or configure or otherwise modify any applicable component of any such Technology, as applicable, and will further deliver to GVI any applicable modifications to any source code, documentation, technical reference and/or user manuals, in accordance with the Technical Specifications delivery procedures, methods or other requirements otherwise applicable to the initial delivery set forth in Exhibit B and that such Wavelength(s) are operating in accordance with Section 6. In the Technical Specifications set forth in Exhibit C. Seller shall provide Purchaser with five (5) Business Days’ prior written notice (which notice may be sent by facsimile or e-mail in this case only) event PNVR fails to correct any nonconformity of the date and time of each applicable test.
4.2.2 After the successful conclusion of the Acceptance Testing conducted by Seller PacketNVR Software with respect to the Backhaul or Wavelength(s)Specifications within the Correction Period, Seller shall provide Purchaser with an electronic notice GVI will have the right to refuse to purchase the PacketNVR Software, pursuant to this Agreement. If and when such Acceptance Tests establish, in GVI’s reasonable determination, that the Backhaul or Technology conforms to the applicable Wavelength(s), as applicable, is available for use (“Turn Up Acknowledgement” or “TUA”).
4.2.3 After receipt by Purchaser from Seller of the TUA, Purchaser shall have five (5) Business Days to conduct its own Acceptance Testing to verify that it is operating in accordance with the applicable Testing Specifications (“Testing Period”). If Purchaser determines that such test results show that the Backhaul or Wavelength(s) or any portion thereof do not meet the applicable Testing Specifications, Purchaser shallGVI will so notify PNVR, within and the Testing Perioddate upon which GVI so notifies PNVR will be considered the “Acceptance” date hereunder. The Parties agree, notify Seller’ Service Delivery Department in writing that for the Capacity does not comply with the Testing Specifications, and, if, upon investigation, such non-compliance is due solely to Seller’ fault, then Seller shall correct the non-compliance as set forth in Section 3.1.3 below.
4.2.4 In the event Purchaser notifies Seller within the time periods set forth in Section 4.2.2 that the Backhaul or Wavelength(s), or any portion thereof is not operating within the parameters of the applicable Testing Specifications, Seller shall expeditiously take such action as shall be necessary with respect to such portion of the Backhaul or Wavelength(s) to bring the operating standards of such portion of the Backhaul or Wavelength(s) into compliance, after which such portion of the Backhaul or Wavelength(s) shall be re-tested in accordance with the provisions purposes of this Section 4. After taking such actions 7, to act in good faith at all times and reto exercise reasonable commercial efforts to notify the other Party promptly in the case of any non-testingconformance, Seller shall provide Purchaser with a rethe implementation of any modification or corrective measure and/or Acceptance or non-tested TUA and Purchaser shall again have all rights provided in this Section 4.
4.2.5 The cycle described above of testing, taking corrective action and re-testing shall take place a maximum of two (2) times as necessary to ensure that such portion Acceptance of the Backhaul or Wavelength(s) operates within the parameters of the applicable Testing Specifications. Following the second such attempt by the parties to agree on the Acceptance Testing results, if Purchaser asserts that the test results demonstrate the Backhaul or Wavelength(s), or any portion thereof, does not meet the applicable Testing Specifications (“Compliancy”), both parties shall choose an independent engineer to establish whether the test results establish Compliancy or not. If the independent engineer confirms Compliancy, Purchaser shall be deemed to have accepted the Backhaul or Wavelength(s) and reimburse Seller for the actual cost of the independent engineer and the actual internal and out-of-pocket costs of extra testing. If the independent engineer confirms Purchaser’s test results, Seller will complete expeditiously the corrective action necessary to achieve Compliancy and pay for the actual cost of the independent engineer and for the actual internal and out-of-pocket costs incurred by Purchaser for such extra testingPNVR Software.
4.2.6 In the event Purchaser does not object to the results of any of Seller’ Acceptance Testing or its own Acceptance Testing within the time periods specified in Section 4.2.3, Purchaser shall be deemed to have accepted the Backhaul or Wavelength(s) as of the first day following the end of such period. The date on which Purchaser issues its notice accepting the Backhaul or Wavelength(s), or on which it is deemed to accept the Backhaul or Wavelength(s), as the case may be, under this *** Portions hereof have been omitted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment in accordance with Rule 406.
Appears in 1 contract
Sources: Intellectual Property Assignment Agreement (Gvi Security Solutions Inc)
Acceptance Testing. 4.2.1 Seller shall test 4A.1 Following delivery by the Backhaul and Wavelength(sSupplier of access to the Services and/or any integration(s) using procedures to be provided under the terms of this agreement, the Customer may, subject to the terms of this clause 4A, subject such access and/or integration(s) to Acceptance Tests.
4A.2 In the event that the Customer elects to conduct Acceptance Tests in accordance with industry standards (“clause 4A.1:
a) The Customer shall: - Provide the Supplier with prompt written notification of its intention to conduct Acceptance Testing”Tests, together with indicative details on the nature of the Acceptance Tests it intends to conduct; - Take reasonable steps to conduct and conclude any Acceptance Tests within the applicable Acceptance Testing Period and without placing an undue burden on the resources or operations of the Supplier; and - Provide the Supplier with prompt written notification of the conclusion and outcome of Acceptance Tests conducted, including, where applicable, such details and information as the Supplier may reasonably require for the purposes of re-configuration and/or re- testing in the event that an Acceptance Test is deemed by the Customer to have failed.
b) The Supplier shall provide such assistance as is reasonably required by the Customer for the purposes of conducting the Acceptance Tests.
4A.3 In the event that an Acceptance Test is deemed by the Customer to have failed, the Customer may, by written notice to the Supplier:
a) Require the Supplier, at no cost to the Customer, to reconfigure the relevant access and/or integration(s) to verify that pass repeat Acceptance Tests within ten (10) Business Days of the previous Acceptance Test failure whereupon the provisions of this clause 4A shall apply to the repeat Acceptance Tests; or
b) Consider the relevant access and/or integration(s) (or such Backhaul part(s) thereof as the Customer determines) to have passed the relevant Acceptance Tests, thereby allowing such Acceptance Tests to be considered completed.
4A.4 If the relevant access and/or integration(s) reconfigured pursuant to clause 4A.3(a) fails to pass repeat Acceptance Tests, the Customer may, by written notice to the Supplier, either:
a) Require the Supplier, at no cost to the Customer, to reconfigure the relevant access and/or integration(s) to pass repeat Acceptance Tests within ten (10) Business Days of the previous Acceptance Test failure whereupon the provisions of this clause 4A shall apply to the repeat Acceptance Tests;
b) Reject the relevant access and/or integration(s), whereupon the Supplier shall promptly refund to the Customer all fees paid to the Supplier in relation to the relevant access and/or integration(s); or
c) Terminate this agreement under clause 14.2(b) for material breach by the Supplier which is operating incapable of remedy, whereupon the Supplier shall promptly refund to the Customer all fees paid to the Supplier in relation to the relevant access and/or integration(s)
4A.5 The Supplier acknowledges that:
a) Acceptance of any access and/or integration(s) by the Customer in accordance with this clause 4A is without prejudice to any other rights or remedies available to the Customer under this agreement; and
b) A failure by the Customer to identify a defect in any access and/or integration(s) shall not relieve the Supplier of its obligation to provide such access and/or integration(s) in accordance with the Technical Specifications set forth in Exhibit B and that such Wavelength(s) are operating in accordance with the Technical Specifications set forth in Exhibit C. Seller shall provide Purchaser with five (5) Business Days’ prior written notice (which notice may be sent by facsimile or e-mail in this case only) of the date and time of each applicable test.
4.2.2 After the successful conclusion of the Acceptance Testing conducted by Seller with respect to the Backhaul or Wavelength(s), Seller shall provide Purchaser with an electronic notice that the Backhaul or the applicable Wavelength(s), as applicable, is available for use (“Turn Up Acknowledgement” or “TUA”).
4.2.3 After receipt by Purchaser from Seller of the TUA, Purchaser shall have five (5) Business Days to conduct its own Acceptance Testing to verify that it is operating in accordance with the applicable Testing Specifications (“Testing Period”). If Purchaser determines that such test results show that the Backhaul or Wavelength(s) or any portion thereof do not meet the applicable Testing Specifications, Purchaser shall, within the Testing Period, notify Seller’ Service Delivery Department in writing that the Capacity does not comply with the Testing Specifications, and, if, upon investigation, such non-compliance is due solely to Seller’ fault, then Seller shall correct the non-compliance as set forth in Section 3.1.3 below.
4.2.4 In the event Purchaser notifies Seller within the time periods set forth in Section 4.2.2 that the Backhaul or Wavelength(s), or any portion thereof is not operating within the parameters of the applicable Testing Specifications, Seller shall expeditiously take such action as shall be necessary with respect to such portion of the Backhaul or Wavelength(s) to bring the operating standards of such portion of the Backhaul or Wavelength(s) into compliance, after which such portion of the Backhaul or Wavelength(s) shall be re-tested in accordance with the provisions requirements of this Section 4. After taking such actions and re-testing, Seller shall provide Purchaser with a re-tested TUA and Purchaser shall again have all rights provided in this Section 4agreement.
4.2.5 The cycle described above of testing, taking corrective action and re-testing shall take place a maximum of two (2) times as necessary to ensure that such portion of the Backhaul or Wavelength(s) operates within the parameters of the applicable Testing Specifications. Following the second such attempt by the parties to agree on the Acceptance Testing results, if Purchaser asserts that the test results demonstrate the Backhaul or Wavelength(s), or any portion thereof, does not meet the applicable Testing Specifications (“Compliancy”), both parties shall choose an independent engineer to establish whether the test results establish Compliancy or not. If the independent engineer confirms Compliancy, Purchaser shall be deemed to have accepted the Backhaul or Wavelength(s) and reimburse Seller for the actual cost of the independent engineer and the actual internal and out-of-pocket costs of extra testing. If the independent engineer confirms Purchaser’s test results, Seller will complete expeditiously the corrective action necessary to achieve Compliancy and pay for the actual cost of the independent engineer and for the actual internal and out-of-pocket costs incurred by Purchaser for such extra testing.
4.2.6 In the event Purchaser does not object to the results of any of Seller’ Acceptance Testing or its own Acceptance Testing within the time periods specified in Section 4.2.3, Purchaser shall be deemed to have accepted the Backhaul or Wavelength(s) as of the first day following the end of such period. The date on which Purchaser issues its notice accepting the Backhaul or Wavelength(s), or on which it is deemed to accept the Backhaul or Wavelength(s), as the case may be, under this *** Portions hereof have been omitted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment in accordance with Rule 406.
Appears in 1 contract
Acceptance Testing. 4.2.1 Seller 4.1 The Customer shall test the Backhaul and Wavelength(s) using procedures in accordance with industry standards (“carry out each set of Acceptance Testing”) to verify that such Backhaul is operating Tests forming part of Acceptance Testing in accordance with the Technical Specifications set forth in Exhibit B Project Plan. The Customer shall provide the Supplier upon request with all relevant documents, reports and that data from such Wavelength(s) are operating Acceptance Tests.
4.2 If the Deliverable does not pass the particular Acceptance Tests being performed the Customer will promptly, and within no more than 5 days of the Acceptance Test failure, notify the Supplier of such failure. The Supplier shall use reasonable endeavours to rework the Deliverable to pass repeat Acceptance Tests and shall submit the reworked Deliverable to the Customer for repeat Acceptance Testing in accordance with the Technical Specifications set forth in Exhibit C. Seller shall provide Purchaser with five (5) Business Days’ prior written notice (which notice may be sent by facsimile or e-mail in this case only) of the date Clause 4 and time of each applicable test.
4.2.2 After the successful conclusion of the Acceptance Testing conducted by Seller with respect to the Backhaul or Wavelength(s), Seller shall provide Purchaser with an electronic notice that the Backhaul or the applicable Wavelength(s), as applicable, is available for use (“Turn Up Acknowledgement” or “TUA”).
4.2.3 After receipt by Purchaser from Seller of the TUA, Purchaser shall have five (5) Business Days to conduct its own Acceptance Testing to verify that it is operating in accordance with the applicable Testing Specifications (“Testing Period”). If Purchaser determines that such test results show that the Backhaul or Wavelength(s) or any portion thereof do not meet the applicable Testing Specifications, Purchaser shall, within the Testing Period, notify Seller’ Service Delivery Department in writing that the Capacity does not comply with the Testing Specifications, and, if, upon investigation, such non-compliance is due solely to Seller’ fault, then Seller shall correct the non-compliance as set forth in Section 3.1.3 below.
4.2.4 In the event Purchaser notifies Seller within the time periods set forth in Section 4.2.2 that the Backhaul or Wavelength(s), or any portion thereof is not operating within the parameters of the applicable Testing Specifications, Seller shall expeditiously take such action as shall be necessary with respect to such portion of the Backhaul or Wavelength(s) to bring the operating standards of such portion of the Backhaul or Wavelength(s) into compliance, after which such portion of the Backhaul or Wavelength(s) shall be re-tested in accordance with the provisions of this Section 4Clause 4.2 shall apply to the repeat Acceptance Test.
4.3 Acceptance of the Deliverable against the Acceptance Tests shall occur when all the Acceptance Tests have been completed and passed (or are considered by the Customer to have passed in accordance with Clause 4.3). After taking At that point the Customer shall sign an acceptance certificate and forward it to the Supplier and Acceptance of that Deliverable against the Acceptance Tests shall occur.
4.4 If the Customer considers a Deliverable to have passed the relevant Acceptance Tests in accordance with Clause 4.3 but the Deliverable still contains Defects, the Supplier will, at no additional cost to the Customer, use reasonable endeavours to remedy the Defects as soon as is practically possible.
4.5 If the Customer places the Deliverable into Live Use (other than as required as part of Acceptance Testing) then such actions and re-testing, Seller use shall provide Purchaser with a re-tested TUA and Purchaser shall again have all rights provided in constitute Acceptance for the purposes of this Section Clause 4.
4.2.5 The cycle described above of testing, taking corrective action 4.6 If a Deliverable has not passed the Acceptance Tests as a whole (and re-testing the Acceptance Tests shall take place a maximum of two (2) times as necessary still be considered to ensure that such portion be passed even where one or more of the Backhaul or Wavelength(s) operates within the parameters of the applicable Testing Specifications. Following the second such attempt by the parties to agree on Acceptance Tests comprising the Acceptance Testing results, if Purchaser asserts that the test results demonstrate the Backhaul or Wavelength(s), or any portion thereof, does not meet the applicable Testing Specifications (“Compliancy”), both parties shall choose an independent engineer to establish whether the test results establish Compliancy or not. If the independent engineer confirms Compliancy, Purchaser shall be Tests has been deemed to have accepted been passed by virtue of Clause 4.4) by the Backhaul or Wavelength(srelevant Long Stop Acceptance Date then the Customer may elect, acting reasonably and in good faith, to:
4.6.1 Extend the relevant Acceptance Date by such period to such a date as the Customer shall reasonably determine (such date being the “Revised Acceptance Date”) and reimburse Seller for in which case the actual cost of Supplier shall (i) seek to rectify the independent engineer outstanding Defects and the actual internal and out-of-pocket costs of extra testing. If the independent engineer confirms Purchaser’s test results, Seller will complete expeditiously the corrective action necessary to achieve Compliancy and pay for the actual cost of the independent engineer and for the actual internal and out-of-pocket costs incurred by Purchaser for such extra testing.
4.2.6 In the event Purchaser does not object to the results of any of Seller’ Acceptance Testing or its own Acceptance Testing within the time periods specified in Section 4.2.3, Purchaser Deliverable shall be deemed to have accepted the Backhaul or Wavelength(s) as of the first day following the end of such period. The date on which Purchaser issues its notice accepting the Backhaul or Wavelength(s), or on which it is deemed to accept the Backhaul or Wavelength(s), as the case may be, under this *** Portions hereof have been omitted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment retested in accordance with Rule 406Clause 4.2; or (ii) exercise its rights under Clause 4.6.2; or
4.6.2 Terminate this Framework Agreement by reason of material default of the Supplier that is not capable of remedy and reject the Deliverable.
Appears in 1 contract
Sources: Master Services Agreement
Acceptance Testing. 4.2.1 Seller 6.1 This clause 6 shall test apply to all Deliverables specified in paragraph 4 of an Insurance Services Work Order.
6.2 EXL Holdings (US) shall complete the Backhaul Deliverable, carry out its own successful internal tests of the Deliverable and Wavelength(s) using procedures notify the Client that it has done so as soon as reasonably practicable and in accordance with industry standards (“any event by the date specified in paragraph 4 of the applicable Insurance Services Work Order and the Client shall start to carry out Acceptance Testing”) to verify that such Backhaul is operating Tests of the Deliverable in accordance with the Technical Specifications Acceptance Tests. The Client shall use its reasonable endeavours to complete the Acceptance Tests within the specified time after receiving notification that EXL Holdings (US) has completed the Deliverable, where the “specified time” means that period specified for these purposes in paragraph 4 of the applicable Insurance Services Work Order. EXL Holdings (US) shall provide the assistance in respect of such Acceptance Testing as set forth out in Exhibit B the Acceptance Tests and EXL Holdings (US) shall be permitted to be present at such Acceptance Tests.
6.3 If, and only if, in the reasonable opinion of the Client, the Deliverable meets all of the Acceptance Criteria, the Deliverable shall have passed its Acceptance Tests. The only evidence of such acceptance shall be an acceptance certificate in the form set out in paragraph 4 of the applicable Insurance Services Work Order signed by the Client or else a written decision to that effect from an expert appointed pursuant to clause 6.9 below.
6.4 If the Deliverable does not pass its Acceptance Tests, the Client shall provide to EXL Holdings (US) reasons for such Wavelength(sfailure. Except where the Acceptance Test Due Date has passed or passes prior to the Deliverable passing the Acceptance Tests (in which case clauses 6.5 and 6.6 shall apply), EXL Holdings (US) are operating shall be given the opportunity to correct any errors in the Deliverable and resubmit the Deliverable for Acceptance Testing in accordance with the Technical Specifications set forth in Exhibit C. Seller shall provide Purchaser with five (5) Business Days’ prior written notice (which notice may be sent by facsimile or e-mail in this case only) of the date clauses 6.2 and time of each applicable test6.
4.2.2 After the successful conclusion of the Acceptance Testing conducted by Seller with respect to the Backhaul or Wavelength(s), Seller shall provide Purchaser with an electronic notice that the Backhaul or the applicable Wavelength(s), as applicable, is available for use (“Turn Up Acknowledgement” or “TUA”).
4.2.3 After receipt by Purchaser from Seller of the TUA, Purchaser shall have five (5) Business Days to conduct its own Acceptance Testing to verify that it is operating in accordance with the applicable Testing Specifications (“Testing Period”). If Purchaser determines that such test results show that the Backhaul or Wavelength(s) or any portion thereof do not meet the applicable Testing Specifications, Purchaser shall, within the Testing Period, notify Seller’ Service Delivery Department in writing that the Capacity does not comply with the Testing Specifications, and, if, upon investigation, such non-compliance is due solely to Seller’ fault, then Seller shall correct the non-compliance as set forth in Section 3.1.3 below.
4.2.4 In the event Purchaser notifies Seller within the time periods set forth in Section 4.2.2 that the Backhaul or Wavelength(s), or any portion thereof is not operating within the parameters of the applicable Testing Specifications, Seller shall expeditiously take such action as shall be necessary with respect to such portion of the Backhaul or Wavelength(s) to bring the operating standards of such portion of the Backhaul or Wavelength(s) into compliance, after which such portion of the Backhaul or Wavelength(s) shall be re-tested in accordance with the provisions of this Section 4. After taking such actions and re-testing, Seller shall provide Purchaser with a re-tested TUA and Purchaser shall again have all rights provided in this Section 4.
4.2.5 The cycle described above of testing, taking corrective action and re-testing shall take place a maximum of two (2) times as necessary to ensure that such portion of the Backhaul or Wavelength(s) operates within the parameters of the applicable Testing Specifications. Following the second such attempt by the parties to agree on the Acceptance Testing results, if Purchaser asserts that the test results demonstrate the Backhaul or Wavelength(s), or any portion thereof, does not meet the applicable Testing Specifications (“Compliancy”), both parties shall choose an independent engineer to establish whether the test results establish Compliancy or not. If the independent engineer confirms Compliancy, Purchaser shall be deemed to have accepted the Backhaul or Wavelength(s) and reimburse Seller for the actual cost of the independent engineer and the actual internal and out-of-pocket costs of extra testing. If the independent engineer confirms Purchaser’s test results, Seller will complete expeditiously the corrective action necessary to achieve Compliancy and pay for the actual cost of the independent engineer and for the actual internal and out-of-pocket costs incurred by Purchaser for such extra testing.
4.2.6 In the event Purchaser does not object to the results of any of Seller’ Acceptance Testing or its own Acceptance Testing within the time periods specified in Section 4.2.3, Purchaser shall be deemed to have accepted the Backhaul or Wavelength(s) as of the first day following the end of such period. The date on which Purchaser issues its notice accepting the Backhaul or Wavelength(s), or on which it is deemed to accept the Backhaul or Wavelength(s), as the case may be, under this *** Portions hereof have been omitted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment in accordance with Rule 406.
Appears in 1 contract
Sources: Insurance Services Framework Agreement (ExlService Holdings, Inc.)
Acceptance Testing. 4.2.1 Seller shall test (a) Schedule F (Acceptance Test Plans) describes the Backhaul three levels of testing for the Products (i.e., unit testing, network element testing and Wavelength(ssystem testing) using procedures and such testing will be implemented in accordance with industry standards Schedule F.
(“b) In the event Lucent is providing Services that includes Acceptance Testing”testing of Products, Lucent shall perform the testing (for Diveo's review and Acceptance) to verify that such Backhaul is operating in accordance with Schedule F and the Technical Specifications applicable Acceptance Test Period. Alternatively, if Diveo is performing the Acceptance testing without the assistance of Lucent, Acceptance testing of the Products shall be conducted by Diveo within the applicable Acceptance Test Period.
(c) In either case as set forth in Exhibit B and (b) above, if such Product(s) meets its Acceptance Criteria, Diveo will notify Lucent in writing that such Wavelength(sProduct has received Acceptance pursuant to Section 6.3. If such Product(s) are operating does not meet its Acceptance Criteria, Diveo may notify Lucent in writing of the failures of the Product(s) to meet its Acceptance Criteria and Lucent shall correct such problems in accordance with the Technical Specifications set forth in Exhibit C. Seller Section 6.2; provided, however, if Lucent is providing Services that includes Acceptance testing, Diveo shall not be obligated to provide Purchaser with five (5) Business Days’ prior written such notice (which of failures until such time following Lucent's notice may be sent by facsimile or e-mail in this case only) of the date and time of each applicable test.
4.2.2 After the successful conclusion of the Acceptance Testing conducted by Seller with respect to the Backhaul or Wavelength(s), Seller shall provide Purchaser with an electronic notice Diveo that the Backhaul or Products have passed the applicable Wavelength(sAcceptance Criteria (i.e., Lucent Certification) and are available for verification by Diveo in accordance with Schedule F. Alternatively, Diveo may accept such Product pursuant to Section 6.3 upon the condition that such failures will be corrected by Lucent within a period of time reasonably specified by Diveo (such acceptance a "Provisional Acceptance"). In the event Diveo or its Affiliates, as applicable, is available for use (“Turn Up Acknowledgement” or “TUA”).
4.2.3 After receipt by Purchaser from Seller places a Product into commercial, revenue producing service, such Product shall -------------------------------------------------------------------------------- Master Supply Agreement 12 Diveo / Lucent Confidential be considered Provisionally Accepted; provided that final Acceptance of such Product shall be based upon the condition that all other Products subject of the TUA, Purchaser shall have five (5) Business Days Purchase Order that are required to conduct its own Acceptance Testing to verify that it is operating in accordance with the applicable Testing Specifications (“Testing Period”). If Purchaser determines that such test results show that the Backhaul or Wavelength(s) or any portion thereof do not meet the applicable Testing Specifications, Purchaser shall, within the Testing Period, notify Seller’ Service Delivery Department in writing that the Capacity does not comply with the Testing Specifications, and, if, upon investigation, such non-compliance is due solely to Seller’ fault, then Seller shall correct the non-compliance be installed together and integrated as set forth in Section 3.1.3 belowa complete system also pass Acceptance.
4.2.4 In the event Purchaser notifies Seller within the time periods set forth in Section 4.2.2 that the Backhaul or Wavelength(s), or any portion thereof is not operating within the parameters of the applicable Testing Specifications, Seller shall expeditiously take such action as shall be necessary with respect to such portion of the Backhaul or Wavelength(s) to bring the operating standards of such portion of the Backhaul or Wavelength(s) into compliance, after which such portion of the Backhaul or Wavelength(s) shall be re-tested in accordance with the provisions of this Section 4. After taking such actions and re-testing, Seller shall provide Purchaser with a re-tested TUA and Purchaser shall again have all rights provided in this Section 4.
4.2.5 The cycle described above of testing, taking corrective action and re-testing shall take place a maximum of two (2) times as necessary to ensure that such portion of the Backhaul or Wavelength(s) operates within the parameters of the applicable Testing Specifications. Following the second such attempt by the parties to agree on the Acceptance Testing results, if Purchaser asserts that the test results demonstrate the Backhaul or Wavelength(s), or any portion thereof, does not meet the applicable Testing Specifications (“Compliancy”), both parties shall choose an independent engineer to establish whether the test results establish Compliancy or not. If the independent engineer confirms Compliancy, Purchaser shall be deemed to have accepted the Backhaul or Wavelength(s) and reimburse Seller for the actual cost of the independent engineer and the actual internal and out-of-pocket costs of extra testing. If the independent engineer confirms Purchaser’s test results, Seller will complete expeditiously the corrective action necessary to achieve Compliancy and pay for the actual cost of the independent engineer and for the actual internal and out-of-pocket costs incurred by Purchaser for such extra testing.
4.2.6 In the event Purchaser does not object to the results of any of Seller’ Acceptance Testing or its own Acceptance Testing within the time periods specified in Section 4.2.3, Purchaser shall be deemed to have accepted the Backhaul or Wavelength(s) as of the first day following the end of such period. The date on which Purchaser issues its notice accepting the Backhaul or Wavelength(s), or on which it is deemed to accept the Backhaul or Wavelength(s), as the case may be, under this *** Portions hereof have been omitted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment in accordance with Rule 406.
Appears in 1 contract
Sources: Master Supply Agreement (Diveo Broadband Networks Inc)
Acceptance Testing. 4.2.1 Seller shall test After installation of the Backhaul initial configuration of a System within a given Market, CTS's representatives and Wavelength(s) using procedures Customer's representatives will perform acceptance testing upon the System to ensure that the System is properly installed and materially performing in accordance with industry standards its Specifications. Such acceptance testing is set forth in: (“i) the Standard Acceptance Testing”Test Plan set forth in the attached Schedule E-1, and (ii) to verify the Acceptance Test Plan [*] set forth in the attached Schedule E-2 for certain [*] of the[*] in the New York Metro Market. Acceptance testing will commence upon certification by CTS that such Backhaul the System is operating properly installed and materially performing in accordance with its Specifications (the Technical Specifications set forth in Exhibit B and that such Wavelength(s) are operating in accordance with "Start Date"). Thereafter, the Technical Specifications set forth in Exhibit C. Seller shall provide Purchaser with five (5) Business Days’ prior written notice (which notice may be sent by facsimile or e-mail in this case only) of the date and time of each applicable test.
4.2.2 After the successful conclusion of the Acceptance Testing conducted by Seller with respect to the Backhaul or Wavelength(s), Seller shall provide Purchaser with an electronic notice that the Backhaul or the applicable Wavelength(s), as applicable, is available for use (“Turn Up Acknowledgement” or “TUA”).
4.2.3 After receipt by Purchaser from Seller of the TUA, Purchaser shall have five (5) Business Days to parties will conduct its own Acceptance Testing to verify that it is operating acceptance tests using simulated and/or actual data in accordance with the applicable Testing Specifications Acceptance Test Plan set forth in the attached SCHEDULE E for a period not to exceed (“a) [*] from the Start Date for testing under the Standard Acceptance Test Plan, and (b) the applicable time period described in the Acceptance Test Plan [*] for testing under such Acceptance Test Plan (each such testing period is referred to herein as an "Acceptance Testing Period”"). If Purchaser determines that such test results show that Upon the Backhaul or Wavelength(s) or any portion thereof do not meet the applicable Testing Specifications, Purchaser shall, within the conclusion of an Acceptance Testing Period, notify Seller’ Service Delivery Department Customer shall complete and execute a copy of the applicable Acceptance Test Plan, which shall state with specificity any aspects of the System's performance which do not materially perform in writing that accordance with [*]. The System will be deemed accepted by Customer if: (i) the Capacity applicable Acceptance Test Plan completed and executed by Customer does not comply with the Testing Specifications, and, if, upon investigation, state any such non-compliance is due solely to Seller’ faultconformities; (ii) Customer does not complete, then Seller shall correct execute, and deliver the applicable Acceptance Test Plan stating any such non-compliance as set forth conformities to CTS within [*] after the expiration of any applicable Acceptance Testing Period; or (iii) in Section 3.1.3 below.
4.2.4 In the event Purchaser notifies Seller within of a dispute as to the time periods set forth in Section 4.2.2 performance of the System, an executive panel of the parties or an arbitration panel concludes that the Backhaul or Wavelength(s), or any portion thereof System is not operating within the parameters of the applicable Testing Specifications, Seller shall expeditiously take such action as shall be necessary with respect to such portion of the Backhaul or Wavelength(s) to bring the operating standards of such portion of the Backhaul or Wavelength(s) into compliance, after which such portion of the Backhaul or Wavelength(s) shall be re-tested materially performing in accordance with the provisions of this Section 4. After taking such actions and re-testing[*], Seller shall provide Purchaser with a re-tested TUA and Purchaser shall again have all rights as provided in this Section 4.
4.2.5 The cycle described above of testing, taking corrective action and re-testing shall take place a maximum of two (2) times as necessary to ensure that such portion of the Backhaul or Wavelength(s) operates within the parameters of the applicable Testing SpecificationsSubsection 7.3. Following the second such attempt by the parties to agree on the Acceptance Testing results, if Purchaser asserts that the test results demonstrate the Backhaul or Wavelength(s), or any portion thereof, does not meet the applicable Testing Specifications (“Compliancy”), both parties shall choose an independent engineer to establish whether the test results establish Compliancy or not. If the independent engineer confirms Compliancy, Purchaser shall be deemed to have accepted the Backhaul or Wavelength(s) and reimburse Seller for the actual cost of the independent engineer and the actual internal and out-of-pocket costs of extra testing. If the independent engineer confirms Purchaser’s test results, Seller will complete expeditiously the corrective action necessary to achieve Compliancy and pay for the actual cost of the independent engineer and for the actual internal and out-of-pocket costs incurred by Purchaser for such extra testing.
4.2.6 In the event Purchaser does not object to the results of any of Seller’ Acceptance Testing or its own Acceptance Testing within the time periods specified in Section 4.2.3, Purchaser shall be deemed to have accepted the Backhaul or Wavelength(s) as of the first day following the end of such period. The date on which Purchaser issues its notice accepting the Backhaul or Wavelength(s), or on which it is deemed to accept the Backhaul or Wavelength(s), as the case may be, under this *** Portions hereof have been omitted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment in accordance with Rule 406.CONFIDENTIAL MATERIAL OMITTED - FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
Appears in 1 contract
Sources: Master Purchase and License Agreement (Cellular Technical Services Co Inc)
Acceptance Testing. 4.2.1 Seller (a) LESSOR shall test notify the Backhaul appropriate MCI field coordination contact by facsimile, electronic mail or telephone (at the numbers specified on the applicable Service Order) that the Service is ready for testing, the place where the test/retest will take place and Wavelength(s) using procedures in accordance with industry standards (“Acceptance Testing”) to verify that such Backhaul is operating in accordance with the Technical Specifications set forth in Exhibit B and that such Wavelength(s) are operating in accordance with the Technical Specifications set forth in Exhibit C. Seller shall provide Purchaser with five (5) Business Days’ prior written notice (which notice may be sent by facsimile or e-mail in this case only) of the date and time of each applicable test.
4.2.2 After the successful conclusion testing or retesting of the Acceptance Testing conducted by Seller with respect Service, which date and time shall be not less than two business days after notification. LESSOR shall perform such testing pursuant to the Backhaul Technical Specifications which are attached hereto as Exhibit B. Any testing or Wavelength(s), Seller retesting and --------- acceptance thereunder shall provide Purchaser with an electronic notice that require completion of a Service Acceptance Form in the Backhaul or the applicable Wavelength(s), form attached hereto as applicable, is available for use (“Turn Up Acknowledgement” or “TUA”).
4.2.3 After receipt by Purchaser from Seller of the TUA, Purchaser Exhibit A-I and ----------- shall have five (5) Business Days to conduct its own Acceptance Testing to verify that it is operating be performed in accordance with this Article 4, paragraph (a). LESSOR shall deliver a completed copy of the Service Acceptance Form and a copy of all test results to the MCI field representative present at the testing or, if the MCI field representative is not present, LESSOR shall deliver same by overnight delivery service, facsimile or electronic mail to the MCI field coordination contact identified in the Service Order.
(b) If the testing results meet the Technical Specifications and the circuit conforms with the Service Order, the MCI field representative shall verify Service acceptance by signing the applicable Testing Specifications Service Acceptance Form. In the event an MCI representative was not present at the testing, MCI shall execute the Service Acceptance Form and provide a copy to LESSOR within ten (“Testing Period”)10) days after receipt of the completed form and test results. If Purchaser determines MCI believes that such the test results show that the Backhaul or Wavelength(s) or any portion thereof do not meet the applicable Testing Technical Specifications, Purchaser shallthe MCI field representative present at the testing shall so notify LESSOR's representatives, or if no MCI representative is present, MCI shall so notify LESSOR within ten (10) days after receipt of the Testing Periodcompleted form and test results, in either event specifying the inadequacy in the test results. Notwithstanding anything to the contrary contained herein, if MCI does not verify Service acceptance in writing (by executing a Service Acceptance Form and providing a copy to LESSOR) or notify Seller’ Service Delivery Department LESSOR of its rejection of the test results within said ten (10) day period, MCI shall be deemed to have rejected the test results and billing shall not commence. In such event, LESSOR shall notify MCI in writing that no Service Acceptance Form or other notice was received and shall request that MCI notify LESSOR as to the Capacity does not comply with reasons for MCI's rejection of the Testing Specificationstest results. if no such notification is received by LESSOR within ten (10) days after receipt by MCI of LESSOR's notice, andMCI's approval, ifcompletion and delivery of the Service Acceptance Form shall be deemed to have occurred, upon investigationand the Commencement Date indicated in such Service Acceptance Form for purposes of Article 2, such non-compliance paragraph (b) hereof shall be deemed to be the date which is due solely to Seller’ fault, then Seller shall correct the non-compliance as set forth in Section 3.1.3 belowten (10) days after receipt by MCI of LESSOR's notice.
4.2.4 In (c) Service shall be available and billing shall commence on the event Purchaser notifies Seller within the time periods set forth in Section 4.2.2 that the Backhaul or Wavelength(s)Commencement Date, or any portion thereof is not operating within the parameters except as delayed pursuant to Article 2, paragraph (c) above. LESSOR shall attach a copy of the fully- executed Service Acceptance Form to the first invoice for each applicable Testing Specifications, Seller Service Order. LESSOR shall expeditiously take such action as shall be necessary with respect to such portion also provide a copy of the Backhaul or Wavelength(sfully-executed Service Acceptance Form (by facsimile) to bring the operating standards of such portion of MCI representative placing the Backhaul order for Service as indicated on each Service Order.
(d) if LESSOR's test results fail to meet the applicable Technical Specification or Wavelength(s) into complianceif MCI notifies LESSOR, after which such portion of the Backhaul or Wavelength(s) shall be re-tested in accordance with Article 4, paragraph (b) above, that the provisions of this Section 4. After taking such actions and re-testingtest results fail to meet the applicable Technical Specification, Seller LESSOR shall provide Purchaser with a re-tested TUA and Purchaser shall again have exercise reasonable diligence to cure all rights provided in this Section 4.
4.2.5 The cycle described above of testing, taking corrective action and re-testing shall take place Service defects within a maximum of ten (10) days ("ACCEPTANCE CURE PERIOD"). If, after two (2) times as necessary to ensure that such portion of the Backhaul or Wavelength(s) operates within the parameters of the applicable Testing Specifications. Following the second such attempt by the parties to agree on the Acceptance Testing resultsService acceptance retests, if Purchaser asserts that the test results demonstrate the Backhaul or Wavelength(s), or any portion thereof, LESSOR's Service does not meet the applicable Testing Specifications Technical Specification, MCI may either: (“Compliancy”), both parties shall choose 1) cancel the respective Service Order without any further liability to LESSOR under the Service Order; or (2) accept an independent engineer to establish whether the test results establish Compliancy or notamended Technical Specification. If the independent engineer confirms CompliancyMCI elects to cancel such Service Order, Purchaser MCI shall be deemed provide written notice to have accepted the Backhaul or Wavelength(s) and reimburse Seller for the actual cost of the independent engineer and the actual internal and out-of-pocket costs of extra testing. If the independent engineer confirms Purchaser’s test results, Seller will complete expeditiously the corrective action necessary to achieve Compliancy and pay for the actual cost of the independent engineer and for the actual internal and out-of-pocket costs incurred by Purchaser for such extra testing.
4.2.6 In the event Purchaser does not object to the results of any of Seller’ Acceptance Testing or its own Acceptance Testing within the time periods specified in Section 4.2.3, Purchaser shall be deemed to have accepted the Backhaul or Wavelength(s) as of the first day following the end LESSOR of such periodintent to cancel and shall remove any traffic or test signal within ten (10) days after the applicable Acceptance Cure Period. The date on which Purchaser issues its notice accepting the Backhaul or Wavelength(s), or on which it is deemed if MCI elects to accept the Backhaul amended Technical Specification, the Technical Specification for that particular Service shall be amended to reflect the actual test results for such Service.
(e) If MCI does not place traffic or Wavelength(s)a test signal on the System at the time of Service acceptance, LESSOR shall have the right, after notifying MCI, to install on the System any device necessary to prevent framing errors, false alarming, or other transmission impairments resulting from the absence of MCI's traffic. Placement of such a device shall not in any way affect or delay billing as stated in each Service Order. All MCI circuit interconnect, turn-up and/or traffic commencement after the case may be, under this *** Portions hereof have been omitted Commencement Date must be reported to LESSOR at least one (1) business day prior to the loading of traffic onto the System. MCI acknowledges that failure to report and filed separately with the Securities and Exchange Commission pursuant arrange for late turn-up prior to traffic loading will result in a request for confidential treatment in accordance with Rule 406lack of circuit continuity.
Appears in 1 contract
Acceptance Testing. 4.2.1 The following provisions apply with respect to the acceptance of any Products (other than Products constituting Spare Parts, prototypes or proof of principle equipment, in respect of which no acceptance test will be required, except as otherwise set out in the SOW, and/or as otherwise mutually agreed upon between the Parties in writing):
12.1 [***] Seller shall prepare and shall submit to the Customer for review and approval the acceptance test the Backhaul and Wavelength(s) using procedures in accordance with industry standards plan (“Acceptance TestingTest Plan”) for the Product, setting out the criteria to verify that be met, and the testing process to be employed, during the FAT and the SAT. Should Customer be interested in adding additional testing process, then this request will be evaluated by the Seller and if agreed, the Seller shall charge the additional cost to the Customer. Unless otherwise set out in the SOW or mutually agreed between the Parties in writing, the Test Plan will be conducted over a time period reasonable in the circumstances, in no event to exceed a maximum of 4 hours for one (1) production days.
12.2 A FAT shall be performed at Seller’s facility or such Backhaul is operating facilities of Seller’s subcontractors as may be agreed upon in writing by the Parties and shall commence at such time as may be agreed upon in writing by the Parties. Such testing shall be carried out by Seller in accordance with the Technical Specifications set forth Test Plan. The FAT shall be deemed successful when the results of the testing are in Exhibit B and that such Wavelength(s) compliance with the Test Plan’s criteria, at which point the Products or as applicable, retrofits, are operating authorized for shipment to the Installation Site. Products will not be shipped to the Installation Site until after the successful completion of FAT.
12.3 A SAT shall be performed at the Installation Site at the Installation Site, at the time agreed in writing by the Parties. Such testing shall be carried out by Seller in accordance with the Technical Specifications Test Plan. The SAT shall be deemed successful when the results of the testing are in compliance with the Test Plan’s criteria, at which point the Products or retrofits have achieved final acceptance by the Customer.
12.4 Seller shall carry out such remedial work as is necessary to achieve a successful FAT and SAT [***], provided that any changes requested by Customer beyond those set forth in Exhibit C. Seller the Specifications may require additional charges which shall provide Purchaser with five (5) Business Days’ prior written notice (which notice may be sent determined by facsimile or e-mail mutual agreement by both Parties and reflected in this case only) of a change order executed by the date and time of each applicable test.
4.2.2 After the successful conclusion of the Acceptance Testing conducted by Seller with respect to the Backhaul or Wavelength(s), Seller shall provide Purchaser with an electronic notice that the Backhaul or the applicable Wavelength(s), as applicable, is available for use (“Turn Up Acknowledgement” or “TUA”).
4.2.3 After receipt by Purchaser from Seller of the TUA, Purchaser shall have five (5) Business Days to conduct its own Acceptance Testing to verify that it is operating Parties in accordance with the applicable Testing Specifications Article 11 (“Testing Period”Changes). If Purchaser Once remedial work is complete, the Products will be re-tested and this process shall continue until a successful FAT and SAT is achieved. In the event that Seller determines that remedial work will not achieve a successful FAT and/or SAT, the Parties shall work together in good faith to revise the Specifications and Test Plan such test results show that the Backhaul Products perform at an optimal level and a successful FAT and SAT are achieved. Should the Parties be unable to agree on the revised Specifications or Wavelength(s) or any portion thereof do not meet Test Plan, the applicable Testing Specifications, Purchaser shall, within Parties shall seek to resolve the Testing Period, notify Seller’ Service Delivery Department in writing that the Capacity does not comply with the Testing Specifications, and, if, upon investigation, such non-compliance is due solely to Seller’ fault, then Seller shall correct the non-compliance dispute as set forth in Section 3.1.3 below.
4.2.4 the Article 19 (Dispute Resolution) after which, if unsuccessful, either Party may terminate this Agreement by giving the other Party [***] days written notice. In the event Purchaser notifies of such termination, Customer shall pay Seller for all Services and other work properly performed prior to the termination, all reasonable costs and expenses already incurred by Seller prior to the termination, and an amount to reimburse Seller for any and all non-cancellable costs it owes or will owe in connection with commitments made by Seller to Third Parties (including, without limitation, the actual amount of any such commitment, any cancellation fees, any lost deposits and any restocking charges).
12.5 In the event Seller and Customer are unable to agree upon a Test Plan within the time periods set forth period provided for in Section 4.2.2 that 12.1, the Backhaul or Wavelength(s), or any portion thereof is not operating Parties shall immediately escalate the issue within the parameters of the applicable Testing Specifications, Seller shall expeditiously take such action as shall be necessary with respect to such portion of the Backhaul or Wavelength(s) to bring the operating standards of such portion of the Backhaul or Wavelength(s) into compliance, after which such portion of the Backhaul or Wavelength(s) shall be re-tested in accordance with the provisions of this Section 4their organizations. After taking such actions and re-testing, Seller shall provide Purchaser with a re-tested TUA and Purchaser shall again have all rights provided in this Section 4.
4.2.5 The cycle described above of testing, taking corrective action and re-testing shall take place a maximum of two (2) times as necessary to ensure that such portion of the Backhaul or Wavelength(s) operates within the parameters of the applicable Testing Specifications. Following the second such attempt by the parties to agree on the Acceptance Testing results, if Purchaser asserts that the test results demonstrate the Backhaul or Wavelength(s), or any portion thereof, does not meet the applicable Testing Specifications (“Compliancy”), both parties shall choose an independent engineer to establish whether the test results establish Compliancy or not. If the independent engineer confirms Compliancy, Purchaser shall be deemed to have accepted the Backhaul or Wavelength(s) and reimburse Seller for the actual cost of the independent engineer and the actual internal and out-of-pocket costs of extra testing. If the independent engineer confirms Purchaser’s test results, Seller will complete expeditiously the corrective action necessary to achieve Compliancy and pay for the actual cost of the independent engineer and for the actual internal and out-of-pocket costs incurred by Purchaser for such extra testing.
4.2.6 In the event Purchaser does not object that, despite the escalation of the issue to the results of any of SellerParties’ Acceptance Testing or its own Acceptance Testing within respective senior management, the time periods specified in Section 4.2.3Parties remain unable to agree upon a Test Plan following good faith attempts at resolution involving their respective senior management, Purchaser either Party shall have the right to terminate this Agreement [***].
12.6 Notwithstanding anything to the contrary, the FAT and/or SAT will be deemed to have accepted successfully completed in the Backhaul or Wavelength(sevent that (a) FAT and/or SAT are unreasonably delayed as a result of Excusable Delays and (b) the Customer uses in production the Product(s) also for the manufacture of its first day following the end of such period. The date on which Purchaser issues its notice accepting the Backhaul or Wavelength(s), or on which it is deemed to accept the Backhaul or Wavelength(s), as the case may be, under this *** Portions hereof have been omitted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment in accordance with Rule 406sellable pharmaceutical products.
Appears in 1 contract
Sources: Master Equipment and Services Agreement (Perspective Therapeutics, Inc.)
Acceptance Testing. 4.2.1 Seller (a) The Owner shall test provide reasonable notice to the Backhaul Lessee of the Acceptance Tests, and Wavelength(s) using procedures the Lessee shall procure that its duly authorised representatives attend any Acceptance Tests, in accordance with industry standards (“Acceptance Testing”) to verify that such Backhaul is operating each case in accordance with the Technical Specifications set forth Acceptance Test Protocol.
(b) If the FLNG Facility has passed all of the Acceptance Tests, then the Owner shall promptly give notice (together with any necessary supporting information) to the Lessee. Subject to Clause 7.13(c) (Acceptance Testing) and unless otherwise specified in Exhibit B the Acceptance Test Protocol, within five (5) Days after the Lessee receives notice from the Owner that the FLNG Facility has passed all of the Acceptance Tests, the Lessee shall execute and deliver to the Owner a Certificate of Acceptance.
(c) If, despite having received notice from the Owner that the FLNG Facility has passed all of the Acceptance Tests, the Lessee considers, acting reasonably, that the FLNG Facility has not passed the Acceptance Tests:
(i) the Lessee shall provide written notice to the Owner promptly (and in any event within five (5) Days after the date of receipt of notice from the Owner that the FLNG Facility has passed all of the Acceptance Tests, or such Wavelength(sother period as may be agreed by the Parties, acting reasonably) are operating as to the reasons why the Lessee considers that the FLNG Facility has not passed the Acceptance Tests; and
(ii) duly authorised representatives of the Owner and the Lessee shall meet promptly (and in any event within a further five (5) Days, or such longer period as may be agreed by the Parties acting reasonably), of such notice being received by the Owner under Clause 7.13(c)(i) (Acceptance Testing) to discuss.
(d) Provided that the Owner has given the Lessee notice of the Acceptance Tests in accordance with the Technical Specifications set forth in Exhibit C. Seller shall provide Purchaser with five (5) Business Days’ prior written notice (which notice may be sent by facsimile or e-mail in this case only) Acceptance Test Protocol, failure without good reason of the date and time of each applicable test.
4.2.2 After the successful conclusion of the Lessee's authorised representative to attend any Acceptance Testing conducted by Seller with respect to the Backhaul or Wavelength(s), Seller shall provide Purchaser with an electronic notice that the Backhaul or the applicable Wavelength(s), as applicable, is available for use (“Turn Up Acknowledgement” or “TUA”).
4.2.3 After receipt by Purchaser from Seller of the TUA, Purchaser shall have five (5) Business Days to conduct its own Acceptance Testing to verify that it is operating Tests in accordance with the applicable Testing Specifications (“Testing Period”). If Purchaser determines that such test results show Acceptance Test Protocol shall not of itself be grounds for the Lessee to consider that the Backhaul FLNG Facility has not passed the Acceptance Tests.
(e) Subject to Clause 7.13(f) (Acceptance Testing), if the FLNG Facility has not passed the Acceptance Tests prior to the end of the Scheduled Commissioning Period:
(i) Daily LDs shall be payable by the Owner to the Lessee (as calculated in accordance with Clause 7.15 (Daily LDs)) until such time as the FLNG Facility has passed all of the Acceptance Tests or Wavelength(sa Certificate of Acceptance has been delivered by the Lessee in accordance with Clause 7.13(f) (Acceptance Testing), provided that the Owner shall not be liable to pay Daily LDs for any Day of delay in passing the Acceptance Tests caused by an FM Event or due to any reason to the extent caused by or attributable to the Lessee Group or any portion thereof do not meet member of any Other Contractor Group; and
(ii) if and to the applicable Testing Specifications, Purchaser shall, within extent the Testing Period, notify Seller’ Service Delivery Department delay in writing that passing the Capacity does not comply with Acceptance Tests was due to any reason caused by or attributable to the Testing Specifications, and, if, upon investigation, such non-compliance is due solely to Seller’ fault, then Seller shall correct the non-compliance Owner Group (other than as set forth in Section 3.1.3 below.
4.2.4 In the event Purchaser notifies Seller within the time periods set forth in Section 4.2.2 that the Backhaul or Wavelength(sa result of an FM Event), or any portion thereof is not operating within Incentive Payment (if any) received by the parameters of the applicable Testing Specifications, Seller shall expeditiously take such action as shall be necessary with respect Owner pursuant to such portion of the Backhaul or Wavelength(sClause 7.9(e) to bring the operating standards of such portion of the Backhaul or Wavelength(s) into compliance, after which such portion of the Backhaul or Wavelength(s(Target Connection Date) shall be rereimbursed to the Lessee on a day-tested for-day basis as a once off reimbursement, in which case the Lessee shall invoice the Owner (as a once off payment) and the Owner shall pay to the Lessee a sum equal to the day-for-day Incentive Payment to be reimbursed, in accordance with the provisions of this Section 4. After taking such actions and re-testing, Seller shall provide Purchaser with a re-tested TUA and Purchaser shall again have all rights provided in this Section 4Clause 14 (Invoicing).
4.2.5 The cycle described above of testing, taking corrective action and re-testing shall take place a maximum of two (2f) times as necessary to ensure that such portion of If the Backhaul or Wavelength(s) operates within the parameters of the applicable Testing Specifications. Following the second such attempt by the parties to agree on FLNG Facility has not passed the Acceptance Testing results, if Purchaser asserts that the test results demonstrate the Backhaul or Wavelength(s), or any portion thereof, does not meet the applicable Testing Specifications (“Compliancy”), both parties shall choose an independent engineer Tests prior to establish whether the test results establish Compliancy or not. If the independent engineer confirms Compliancy, Purchaser shall be deemed to have accepted the Backhaul or Wavelength(s) and reimburse Seller for the actual cost of the independent engineer and the actual internal and out-of-pocket costs of extra testing. If the independent engineer confirms Purchaser’s test results, Seller will complete expeditiously the corrective action necessary to achieve Compliancy and pay for the actual cost of the independent engineer and for the actual internal and out-of-pocket costs incurred by Purchaser for such extra testing.
4.2.6 In the event Purchaser does not object to the results of any of Seller’ Acceptance Testing or its own Acceptance Testing within the time periods specified in Section 4.2.3, Purchaser shall be deemed to have accepted the Backhaul or Wavelength(s) as of the first day following the end of such period. The date on which Purchaser issues the Scheduled Commissioning Period, the Lessee may, in its sole discretion, give notice accepting to the Backhaul or Wavelength(s), or on which Owner that it is deemed proposes to accept the Backhaul or Wavelength(s)FLNG Facility prior to the date that the FLNG Facility has passed all of the Acceptance Tests, as in which case:
(i) the case Lessee may beexecute and deliver the Certificate of Acceptance; or
(ii) the Lessee may request the Owner and the Operator to meet and discuss in good faith the amendment of this Agreement to account for any failure of the FLNG Facility to pass the Acceptance Tests, under this *** Portions hereof and the Lessee may execute and deliver a Certificate of Acceptance once such amendments have been omitted agreed, provided that the Owner shall have the right (from time to time during the Lease Period) upon giving not less than thirty (30) Days' notice to the Lessee, to demonstrate that the FLNG Facility has passed all of the Acceptance Tests that were not passed prior to the Commercial Operations Date, in which case the Parties will agree the extent to which the original terms and filed separately with conditions of this Agreement should apply on and from the Securities and Exchange Commission pursuant date that the FLNG Facility has passed all of the Acceptance Tests, taking into account the amendments that had been previously agreed because of the failure of the FLNG Facility to a request for confidential treatment in accordance with Rule 406pass the Acceptance Tests.
Appears in 1 contract
Acceptance Testing. 4.2.1 Seller 11.1 This section applies to Fixed-fee assignments. Superior will notify Empower when an assignment is complete. Empower will then have a number of days, specified in the SSA, to perform acceptance testing and either accept the assignment as complete or describe in good faith to Superior the reasons for rejection. In the event the assignment fails acceptance testing as defined in the SSA, Superior shall thereafter have a number of days, specified in the SSA, within which to modify, correct or replace the assignment. Superior shall then resubmit the assignment to Empower for further acceptance testing (for a number of days specified in the SSA). Assignments will be deemed to have passed the acceptance test if, (a) Empower signs off on the Backhaul and Wavelength(sSSA assignment as accepted, or (b) using procedures in accordance with industry standards (“Acceptance Testing”) to verify that such Backhaul is operating in accordance with by the Technical Specifications set forth in Exhibit B and that such Wavelength(s) are operating in accordance with the Technical Specifications set forth in Exhibit C. Seller shall provide Purchaser with five (5) Business Days’ prior written notice (which notice may be sent by facsimile or e-mail in this case only) end of the date and time of each applicable testacceptance period Empower has not met its testing obligations, or (c) if Empower, at any time, places the assignment function into production.
4.2.2 After the successful conclusion of the Acceptance Testing conducted 11.2 Following written notification by Seller with respect to the Backhaul or Wavelength(s)Superior that an assignment is complete and ready for acceptance testing, Seller shall provide Purchaser with an electronic notice that the Backhaul or the applicable Wavelength(s), as applicable, is available for use (“Turn Up Acknowledgement” or “TUA”).
4.2.3 After receipt by Purchaser from Seller of the TUA, Purchaser shall have five (5) Business Days to conduct its own Acceptance Testing to verify that it is operating in accordance with the applicable Testing Specifications (“Testing Period”). If Purchaser determines that such test results show that the Backhaul or Wavelength(s) or any portion thereof do not meet the applicable Testing Specifications, Purchaser Empower shall, within the Testing Periodschedule provided in the SSA, notify Seller’ Service Delivery Department in writing that the Capacity does not comply with the Testing Specifications, and, if, upon investigation, such non-compliance is due solely to Seller’ fault, then Seller shall correct the non-compliance as fully complete all acceptance tests set forth in Section 3.1.3 below.
4.2.4 In SSA. Upon completion of acceptance testing, Empower shall notify Superior, in writing, that (1) the event Purchaser notifies Seller within the time periods set forth in Section 4.2.2 that the Backhaul or Wavelength(s)assignment has passed acceptance testing, or any portion thereof is not operating within the parameters of the applicable Testing Specifications, Seller shall expeditiously take such action as shall be necessary with respect to such portion of the Backhaul or Wavelength(s) to bring the operating standards of such portion of the Backhaul or Wavelength(s) into compliance, after which such portion of the Backhaul or Wavelength(s) shall be re-tested in accordance with the provisions of this Section 4. After taking such actions and re-testing, Seller shall provide Purchaser with a re-tested TUA and Purchaser shall again have all rights provided in this Section 4.
4.2.5 The cycle described above of testing, taking corrective action and re-testing shall take place a maximum of two (2) times identify all areas in which Empower claims the assignment has failed acceptance testing. Further, as necessary to ensure each testing step or criterion identified in each SSA, Empower shall state that such portion (1) the assignment has passed, or (2) it has failed, or (3) it could not be tested due to the failure of a dependent component, in instances where Empower has notified Superior of failures in acceptance testing, and Superior agrees that the Backhaul or Wavelength(s) operates within assignment has failed acceptance testing, Superior shall use its best efforts to remedy all deficiencies identified by Empower and shall continue to do so until the parameters assignment passes Acceptance Testing. in instances where Empower has notified Superior of the applicable Testing Specifications. Following the second such attempt by the parties failures in acceptance testing, but Superior does not agree that acceptance tests have been failed, then Superior shall not be obligated to agree continue working on the Acceptance Testing results, if Purchaser asserts that the test results demonstrate the Backhaul or Wavelength(s), or any portion thereof, does not meet the applicable Testing Specifications (“Compliancy”), both parties shall choose an independent engineer to establish whether the test results establish Compliancy or not. If the independent engineer confirms Compliancy, Purchaser shall be deemed to have accepted the Backhaul or Wavelength(s) and reimburse Seller for the actual cost of the independent engineer and the actual internal and out-of-pocket costs of extra testing. If the independent engineer confirms Purchaser’s test results, Seller will complete expeditiously the corrective action necessary to achieve Compliancy and pay for the actual cost of the independent engineer and for the actual internal and out-of-pocket costs incurred by Purchaser for such extra testingassignment.
4.2.6 In the event Purchaser does not object to the results of any of Seller’ Acceptance Testing or its own Acceptance Testing within the time periods specified in Section 4.2.3, Purchaser shall be deemed to have accepted the Backhaul or Wavelength(s) as of the first day following the end of such period. The date on which Purchaser issues its notice accepting the Backhaul or Wavelength(s), or on which it is deemed to accept the Backhaul or Wavelength(s), as the case may be, under this *** Portions hereof have been omitted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment in accordance with Rule 406.
Appears in 1 contract
Sources: Service Agreement (Drkoop Com)
Acceptance Testing. 4.2.1 Seller shall test the Backhaul CSG will make available all Ascendon Software, Ascendon Documentation made available as a Deliverable and Wavelength(s) using procedures in accordance with industry standards other Deliverables (each, a “Acceptance TestingCandidate Deliverable”) to verify that such Backhaul is operating in accordance with the Technical Specifications set forth in Exhibit B and that such Wavelength(s) are operating in accordance with the Technical Specifications set forth in Exhibit C. Seller shall provide Purchaser with five for review and/or acceptance testing by Customer (5) Business Days’ prior written notice (which notice may be sent by facsimile or e-mail in this case only) of the date and time of each applicable test.
4.2.2 After such Candidate Deliverable is received by or made available to Customer is referred to herein as the successful conclusion of the Acceptance Testing conducted by Seller with respect to the Backhaul or Wavelength(s), Seller shall provide Purchaser with an electronic notice that the Backhaul or the applicable Wavelength(s), as applicable, is available for use (“Turn Up Acknowledgement” or “TUADelivery Date”).
4.2.3 After receipt by Purchaser from Seller (a) Unless otherwise set forth in a Statement of Work:
(i) Customer will have (x) [******* **** ******** **** with respect to a Candidate Deliverable that is in written or document form (e.g., an approach document) and (y) ***** **** ****] with respect to all Candidate Deliverables that are in non-written form (the “Review Period”), in each case after the applicable Delivery Date (the last day of the TUAapplicable Review Period being referred to herein as the “Test Date”), Purchaser shall have five within which to test the Candidate Deliverable, in order to determine if the same (5a) Business Days to conduct its own Acceptance Testing to verify that it is operating operates in accordance with the applicable Testing Specifications Ascendon Documentation and the specifications described in the applicable Ascendon Service Order and SOW; (b) is substantially free from material programming errors, bugs and defects in manufacturing and workmanship (i.e., those that give rise to Critical or High Incidents); and (c) otherwise conforms to the applicable representations and warranties of CSG contained or referred to in the applicable Ascendon Service Order and the Agreement (collectively, the “Testing PeriodAcceptance Criteria”).
(ii) On or before the Test Date, Customer may provide CSG with written notice (email acceptable) that it either accepts (a “Notice of Acceptance”) or rejects (a “Statement of Errors”) the delivery of the Candidate Deliverable. If Purchaser determines that Customer provides CSG a Notice of Acceptance, the Candidate Deliverable(s) and/or Technical Services the subject of such test results show that Notice of Acceptance shall be deemed Accepted as of the Backhaul date CSG receives such Notice of Acceptance. If Customer fails to provide CSG a Notice of Acceptance or Wavelength(s) or any portion thereof do not meet a Statement of Errors during the Review Period, Customer will be deemed to have Accepted the applicable Testing SpecificationsCandidate Deliverable(s) and related Technical Services as of the Test Date.
(iii) If Customer provides CSG a Statement of Errors, Purchaser shallsuch notice must include (x) a reasonably detailed written description of all Exceptions identified by Customer during its review and/or acceptance testing, including but not limited to the test case, scenarios impacted, screen captures and relevant data to reproduce the problem, default or failure, reasonably required in order to facilitate CSG’s understanding of such Exceptions, (y) CSG will correct and redeliver the Candidate Deliverable subject to the Notice of Rejection promptly but in any event within [******* **** ******** ****] of the Testing Period, notify Seller’ Service Delivery Department date CSG received such Notice of Rejection or such other date mutually agreed by the Parties in writing that the Capacity does not comply with the Testing Specifications, and, if, upon investigation, such non-compliance is due solely to Seller’ fault, then Seller shall correct the non-compliance as set forth in Section 3.1.3 below.
4.2.4 In the event Purchaser notifies Seller within the time periods set forth in Section 4.2.2 that the Backhaul or Wavelength(s(email acceptable), or any portion thereof is not operating within the parameters of the applicable Testing Specifications, Seller shall expeditiously take such action as shall be necessary with respect to such portion of the Backhaul or Wavelength(sand (z) to bring the operating standards of such portion of the Backhaul or Wavelength(s) into compliance, after which such portion of the Backhaul or Wavelength(s) shall be Customer will re-tested review and/or test the Candidate Deliverable in accordance with the provisions applicable Acceptance Criteria and Review Period. CSG and Customer shall follow the foregoing procedures until the Candidate Deliverable is accepted (“Accepted” or “Acceptance”); provided, that if CSG is not able to comply with the Acceptance Criteria applicable to a given Candidate Deliverable within [***** ***] attempts (a “Non-Conforming Deliverable”), Customer may by providing CSG written notice (email acceptable) within [****** **** ****] of this Section 4the last Test Date applicable to such Non-Conforming Deliverable request to remove such Non-Conforming Deliverable from the applicable SOW and/or Ascendon Service Order and CSG shall, as applicable, [****** *** **** ********** **** ** *** *** *** ******* *** ******* ***** ** **** **** *********] to the Non-Conforming Deliverable. After taking such actions and reNotwithstanding the foregoing, if the Non-testingConforming Deliverable is [******** ** *** ******** ******** ******** ***/** ******** **** ******** ******** *** ** ** ********* under the applicable Ascendon Service Order, Seller shall provide Purchaser with a rethen Customer *** ********* *** ********** ******** ******* ***** *** ************ ** **** ** ********* *** ******* ****** ** ************ **** *********** ** ** ******** ****** ****** **** **** ** *** **** **** **** ********** ** **** ********] Non-tested TUA and Purchaser shall again have all rights provided in this Section 4Conforming Deliverable.
4.2.5 The cycle described above of testing(iv) If Customer [********** ** ******** ******* ***** *** ********** ************ ** **** ***** ******* **********, taking corrective action and re-testing shall take place a maximum of two CSG ***** ****** Customer the following ****]:
(1) [** *** ************** *********** ** ******** ***** ** *** ******* ******* **** ***** *** ******** ******* ****** *** ***** ****** ******** *** **** ********** **** ** ******** ** *** ***** *** ******** ******* ***** *** ******** ************ ** ****]; and
(2) times [** *** ************** *********** ** ******** ***** *** ******* ******* **** ***** *** ******** ******* ****** *** ***** ****** ******** *** *** ******* **** ** ******** ** *** ***** *** ********** ************ ** **** *** *** **** ******* ** *** **** **** ** ******** ********** ** *** ***** **** ********* *** ********* **** ** ***********]. Customer acknowledges that this Section 3.4(v) sets forth ********** **** *** ********* ******* *** ***** ********* ********** *** ********** *********** ** ** ******** ******* ***** *** ******* ************ ** **** pursuant to this Section 3.4.
(v) Except with respect to tests permitted by CSG to be conducted in the Production Environment under Section 3.4(c), if Customer utilizes a Candidate Deliverable in the Production Environment, such Candidate Deliverable shall be deemed Accepted as necessary to ensure that such portion of the Backhaul date on which such Candidate Deliverable is utilized in such Production Environment.
(vi) Notwithstanding the prior Acceptance (or Wavelength(sdeemed Acceptance) operates within of Technical Services and any Candidate Deliverables hereunder, all warranties made by CSG under the parameters Agreement and CSG’s obligation to provide Ascendon Support Services shall survive such Acceptance; provided, however, that any Customer requested change or variance to a Candidate Deliverable after its Acceptance shall be deemed a request by Customer for CSG to provide Technical Services pursuant to an additional SOW or Ascendon Additional Services, as applicable. For the avoidance of the applicable Testing Specifications. Following the second doubt, Customer’s tender or request for warranty services under Section 7.2 shall not be deemed a Customer requested change or variance to a Candidate Deliverable.
(b) If Customer provides CSG a Statement of Errors that includes a new Exception that could have been reasonably discovered by Customer in a previously submitted version of a Candidate Deliverable but was not cited in any preceding Statement of Errors relative to such attempt by the parties to agree on the Acceptance Testing results, if Purchaser asserts that the test results demonstrate the Backhaul or Wavelength(s), or any portion thereof, does not meet the applicable Testing Specifications Candidate Deliverable (a “CompliancyPre-Existing Exception”), both parties then CSG shall choose an independent engineer not be deemed to establish whether have violated any representation or warranty contained in the test results establish Compliancy or notAgreement relative to such Pre-Existing Exception. If the independent engineer confirms Compliancy, Purchaser Nothing in this section shall be deemed to have accepted the Backhaul limit CSG’s obligation under this Section 3.4 or Wavelength(s) Section 7.1 of this Exhibit to remedy an Exception and reimburse Seller Customer shall not be liable for the actual cost any breach of the independent engineer and Agreement as a result of any failure by Customer, acting in good faith, to notify CSG of an Exception reasonably discoverable in the actual internal and out-of-pocket costs of extra testing. If the independent engineer confirms Purchaser’s test results, Seller will complete expeditiously the corrective action necessary to achieve Compliancy and pay for the actual cost of the independent engineer and for the actual internal and out-of-pocket costs incurred by Purchaser for such extra testingReview Period.
4.2.6 In the event Purchaser does not object to the results of any of Seller’ Acceptance Testing or (a) Customer acknowledges that it may conduct its own Acceptance Testing within the time periods specified in Section 4.2.3, Purchaser shall be deemed to have accepted the Backhaul or Wavelength(s) as of the first day following the end of such period. The date on which Purchaser issues its notice accepting the Backhaul or Wavelength(s), or on which it is deemed to accept the Backhaul or Wavelength(s), as the case may be, tests under this *** Portions hereof have been omitted Section 3.4 (i) in a Performance Testing Environment ordered and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment configured in accordance with Rule 406Section 5.2 and (ii) in the Sandbox Environment and Production Environment only with CSG’s prior written consent, which consent is in CSG’s sole discretion.
Appears in 1 contract
Sources: CSG Master Subscriber Management System Agreement (CSG Systems International Inc)
Acceptance Testing. 4.2.1 Seller shall test the Backhaul and Wavelength(s) using procedures in accordance with industry standards (“Acceptance Testing”) to verify that such Backhaul is operating in accordance with the Technical Specifications set forth in Exhibit B and that such Wavelength(s) are operating in accordance with the Technical Specifications set forth in Exhibit C. Seller shall provide Purchaser with five (5) Business Days’ prior written notice (which notice may be sent by facsimile or e-mail in this case only) of the date and time of each applicable test.
4.2.2 After the successful conclusion of the Acceptance Testing conducted by Seller The following provisions apply with respect to the Backhaul acceptance of any Products (other than Products constituting spare parts, prototypes or Wavelength(s)proof of principle equipment, in respect of which no acceptance test will be required, except as otherwise set out in the Proposal, and/or as otherwise mutually agreed upon between the parties in writing):
(a) Within [*] ([*]) days following completion of design review for the Products, Seller and Customer shall provide Purchaser with agree in writing upon an electronic notice that the Backhaul or the applicable Wavelength(s), as applicable, is available for use acceptance test plan (“Turn Up Acknowledgement” or “TUATest Plan”).
4.2.3 After receipt by Purchaser from Seller of ) setting out the TUAcriteria to be met, Purchaser shall have five and the testing process to be employed, during the FAT (5as defined below) Business Days to conduct its own Acceptance Testing to verify that it is operating in accordance with and the applicable Testing Specifications SAT (“Testing Period”). If Purchaser determines that such test results show that the Backhaul or Wavelength(s) or any portion thereof do not meet the applicable Testing Specifications, Purchaser shall, within the Testing Period, notify Seller’ Service Delivery Department in writing that the Capacity does not comply with the Testing Specifications, and, if, upon investigation, such non-compliance is due solely to Seller’ fault, then Seller shall correct the non-compliance as set forth in Section 3.1.3 below.
4.2.4 In the event Purchaser notifies Seller within the time periods set forth in Section 4.2.2 that the Backhaul or Wavelength(s), or any portion thereof is not operating within the parameters of the applicable Testing Specifications, Seller shall expeditiously take such action as shall be necessary with respect to such portion of the Backhaul or Wavelength(s) to bring the operating standards of such portion of the Backhaul or Wavelength(s) into compliance, after which such portion of the Backhaul or Wavelength(s) shall be re-tested in accordance with the provisions defined * Confidential treatment has been requested for portions of this Section 4exhibit. After taking such actions and re-testing, Seller shall provide Purchaser with a re-tested TUA and Purchaser shall again have all rights provided in this Section 4.
4.2.5 The cycle described above of testing, taking corrective action and re-testing shall take place a maximum of two (2) times as necessary to ensure that such portion of copy filed herewith omits the Backhaul or Wavelength(s) operates within the parameters of the applicable Testing Specifications. Following the second such attempt by the parties to agree on the Acceptance Testing results, if Purchaser asserts that the test results demonstrate the Backhaul or Wavelength(s), or any portion thereof, does not meet the applicable Testing Specifications (“Compliancy”), both parties shall choose an independent engineer to establish whether the test results establish Compliancy or not. If the independent engineer confirms Compliancy, Purchaser shall be deemed to have accepted the Backhaul or Wavelength(s) and reimburse Seller for the actual cost of the independent engineer and the actual internal and out-of-pocket costs of extra testing. If the independent engineer confirms Purchaser’s test results, Seller will complete expeditiously the corrective action necessary to achieve Compliancy and pay for the actual cost of the independent engineer and for the actual internal and out-of-pocket costs incurred by Purchaser for such extra testing.
4.2.6 In the event Purchaser does not object information subject to the results confidentiality request. Omissions are designated as [*]. A complete version of any of Seller’ Acceptance Testing or its own Acceptance Testing within the time periods specified in Section 4.2.3, Purchaser shall be deemed to have accepted the Backhaul or Wavelength(s) as of the first day following the end of such period. The date on which Purchaser issues its notice accepting the Backhaul or Wavelength(s), or on which it is deemed to accept the Backhaul or Wavelength(s), as the case may be, under this *** Portions hereof have exhibit has been omitted and filed separately with the Securities and Exchange Commission pursuant Commission. below). Unless otherwise set out in the Proposal or mutually agreed between the parties in writing, the Test Plan will be conducted over a time period reasonable in the circumstances.
(b) A factory acceptance test (“FAT”) shall be performed at Seller’s facility or such facilities of Seller’s subcontractors as may be agreed upon in writing by the parties and shall commence within [*] ([*]) business days following notice from Seller to a request for confidential treatment Customer confirming completion of the Products, or at such other time as may be agreed upon in writing by the parties. Such testing shall be carried out together by Customer and Seller in accordance with Rule 406the Test Plan. The FAT shall be deemed successful when [*] the results of the testing are in compliance with the Test Plan’s criteria, at which point the Products are authorized for shipment to the Installation Site.
(c) A Customer site acceptance test (“SAT”) shall be performed at the Installation Site within [*] ([*]) business days of the completion of installation of the Products at the Installation Site. Such testing shall be carried out together by Customer and Seller in accordance with the Test Plan. The SAT shall be deemed successful when [*] the results of the testing are in compliance with the Test Plan’s criteria, at which point the Products have achieved final acceptance by the Customer.
(d) Seller shall carry out such remedial work as is necessary to achieve a successful FAT and SAT [*], provided that any additional changes requested by Customer beyond those set forth in the Specifications may require additional charges which shall be determined by mutual agreement by both parties and reflected in a change order executed by the parties in accordance with Section 8 (Changes). Once remedial work is complete, the Products will be re-tested and this process shall continue until a successful FAT and SAT is achieved in accordance with this Section 10.
(e) In the event Seller and Customer are unable to agree upon a Test Plan within the time period provided for in sub-section (a) above, the parties shall immediately escalate the issue within their organizations.
Appears in 1 contract
Sources: Master Equipment and Services Agreement (Insulet Corp)
Acceptance Testing. 4.2.1 Seller (1) Each Deliverable (other than a Document Deliverable) shall test the Backhaul and Wavelength(s) using procedures in accordance with industry standards (“Acceptance Testing”) to verify that such Backhaul is operating be tested in accordance with the Technical Specifications set forth in Exhibit B and that such Wavelength(s) are operating in accordance with the Technical Specifications set forth in Exhibit C. Seller shall provide Purchaser with five (5) Business Days’ prior written notice (which notice may be sent by facsimile or e-mail in this case only) relevant Acceptance Criteria. As soon as reasonably practicable after completion of the date and time applicable testing, Marconi shall issue an Acceptance Certificate in respect of each applicable test.
4.2.2 After the successful conclusion particular Deliverable if in the reasonable SCHEDULE 7 - PROJECT TERMS opinion of Marconi the Acceptance Criteria are satisfied in respect of the Deliverable. Issue of the Acceptance Testing conducted by Seller with respect Certificate shall not affect Marconi's rights under this Agreement or otherwise, except that Marconi shall not be entitled to reject a Deliverable to the Backhaul or Wavelength(s), Seller shall provide Purchaser with an electronic notice extent that the Backhaul Acceptance Criteria have been passed, or an Acceptance Certificate issued, in respect of that Deliverable.
(2) If the Acceptance Criteria are not so satisfied, Marconi shall notify the Supplier, specifying any perceived deficiencies; provided that, if
(a) Marconi does not notify the Supplier within a reasonable time and in any event within [***]Business Days (or such other period that is agreed in writing between the Parties) after completion of the acceptance testing that they are not satisfied; or
(b) Marconi puts the relevant Deliverable into productive use other than for testing or diagnostic purposes; the Acceptance Criteria applicable Wavelength(s)to that Deliverable shall be deemed to have been met (provided that where Marconi only puts part of a relevant Deliverable into productive use, as applicable, is available for use (“Turn Up Acknowledgement” or “TUA”only that part of the Deliverable shall be deemed to have been accepted pursuant to this provision).
4.2.3 After receipt by Purchaser from Seller of the TUA, Purchaser shall have five (53) Business Days to conduct its own Acceptance Testing to verify that it is operating in accordance with the applicable Testing Specifications (“Testing Period”). If Purchaser determines that such test results show that the Backhaul or Wavelength(s) or any portion thereof do not meet the applicable Testing Specifications, Purchaser shall, within the Testing Period, notify Seller’ Service Delivery Department in writing that the Capacity does not comply with the Testing Specifications, and, if, upon investigation, such non-compliance is due solely to Seller’ fault, then Seller shall correct the non-compliance as set forth in Section 3.1.3 below.
4.2.4 In the event Purchaser notifies Seller within the time periods set forth in Section 4.2.2 that the Backhaul or Wavelength(s), or any portion thereof is not operating within the parameters of the applicable Testing Specifications, Seller shall expeditiously take such action as The Supplier shall be necessary with respect to such portion given a reasonable opportunity following receipt of the Backhaul or Wavelength(sa notice given under Paragraph 6.2(2) to bring cure the operating standards of such portion of defects and the Backhaul or Wavelength(s) into compliance, after which such portion of the Backhaul or Wavelength(s) Deliverable shall be re-tested in accordance with the provisions Acceptance Criteria.
(4) If by the date set forth in the relevant Schedule of Work for the completion of acceptance testing or after re-testing pursuant to Paragraph 6.2(3) (or such other date as has been agreed in writing between the Parties), the Acceptance Criteria in respect of the Deliverable have not materially been met (other than as a result of any of the circumstances specified in Clause 3.1(2) of this Section 4. After taking such actions Agreement), then Marconi may (without affecting its other rights) by notice in writing to the Supplier:
(a) extend the period for completion to a reasonable date specified in the notice, in which case the Supplier shall seek to cure the outstanding defects and re-testing, Seller the Deliverable shall provide Purchaser with a be re-tested TUA and Purchaser shall again have all rights provided in accordance with this Section 4.
4.2.5 The cycle described above of testing, taking corrective action and re-testing shall take place a maximum of two (2) times as necessary to ensure that such portion of the Backhaul or Wavelength(s) operates within the parameters of the applicable Testing SpecificationsParagraph 6. Following the second such attempt by the parties to agree on the Acceptance Testing results, if Purchaser asserts that the test results demonstrate the Backhaul or Wavelength(s), or any portion thereof, does not meet the applicable Testing Specifications (“Compliancy”), both parties shall choose an independent engineer to establish whether the test results establish Compliancy or not. If the independent engineer confirms Compliancy, Purchaser shall be deemed to have accepted the Backhaul or Wavelength(s) and reimburse Seller for the actual cost of the independent engineer and the actual internal and out-of-pocket costs of extra testing. If the independent engineer confirms Purchaser’s test results, Seller will complete expeditiously the corrective action necessary to achieve Compliancy and pay for the actual cost of the independent engineer and for the actual internal and out-of-pocket costs incurred by Purchaser for such extra testing.
4.2.6 In the event Purchaser does not object to the results of any of Seller’ Acceptance Testing or its own Acceptance Testing within the time periods specified in Section 4.2.3, Purchaser shall be deemed to have accepted the Backhaul or Wavelength(s) as of the first day following At the end of such period. The date on which Purchaser issues its notice accepting the Backhaul or Wavelength(s), or on which it is deemed to accept the Backhaul or Wavelength(s), as the case may be, under this *** Portions hereof have been omitted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment in accordance with Rule 406.Paragraph 6.2(4) shall SCHEDULE 7 - PROJECT TERMS
Appears in 1 contract
Sources: Master Agreement for the Provision of It and Project Services (Marconi Corp PLC)
Acceptance Testing. 4.2.1 Seller Tumbleweed shall test notify UPS in writing when Tumbleweed has completed the Backhaul and Wavelength(s) using procedures final version of the Software associated with any Phase of the Project such that it is ready for acceptance testing by UPS. UPS shall then promptly conduct the acceptance tests provided for in accordance with industry standards the Detailed Design Specifications (“the "Acceptance Testing”Tests") to verify that determine whether or not the Software, Documentation and other deliverables to be provided pursuant to such Backhaul is operating in accordance with Phase materially conform to the Technical Detailed Design Specifications set forth in Exhibit B and that such Wavelength(s) are operating in accordance with (the Technical Specifications set forth in Exhibit C. Seller "Acceptance Standard"). The Acceptance Tests shall provide Purchaser with be conducted over a period not to exceed thirty-five (535) Business Days’ prior written days (the "Acceptance Test Period"), and may consist both of testing by UPS in a test environment and beta testing by allowing a limited number of customers to process Transactions using the Software in a product environment. In the event that the applicable Software, Documentation and other deliverables materially conform to the Acceptance Standard, UPS shall notify Tumbleweed in writing that same have passed the Acceptance Tests. In the event that UPS does not provide notice (which notice may be sent by facsimile or e-mail in this case only) of rejection of any Phase of the date and time of each applicable test.
4.2.2 After Project by the successful conclusion end of the Acceptance Testing conducted by Seller with respect to the Backhaul or Wavelength(s), Seller shall provide Purchaser with an electronic notice that the Backhaul or the applicable Wavelength(s), as applicable, is available Test Period for use (“Turn Up Acknowledgement” or “TUA”).
4.2.3 After receipt by Purchaser from Seller of the TUA, Purchaser shall have five (5) Business Days to conduct its own Acceptance Testing to verify that it is operating in accordance with the applicable Testing Specifications (“Testing Period”). If Purchaser determines that such test results show that the Backhaul or Wavelength(s) or any portion thereof do not meet the applicable Testing Specifications, Purchaser shall, within the Testing Period, notify Seller’ Service Delivery Department in writing that the Capacity does not comply with the Testing Specifications, and, if, upon investigationPhase, such non-compliance is due solely to Seller’ fault, then Seller Phase shall correct the non-compliance as set forth in Section 3.1.3 below.
4.2.4 be deemed accepted. In the event Purchaser notifies Seller within the time periods set forth in Section 4.2.2 that the Backhaul or Wavelength(s), or any portion thereof is not operating within the parameters of Acceptance Tests reveal that the applicable Testing SpecificationsSoftware, Seller shall expeditiously take such action as shall be necessary with respect to such portion of the Backhaul or Wavelength(s) to bring the operating standards of such portion of the Backhaul or Wavelength(s) into compliance, after which such portion of the Backhaul or Wavelength(s) shall be re-tested in accordance with the provisions of this Section 4. After taking such actions Documentation and re-testing, Seller shall provide Purchaser with a re-tested TUA and Purchaser shall again have all rights provided in this Section 4.
4.2.5 The cycle described above of testing, taking corrective action and re-testing shall take place a maximum of two (2) times as necessary to ensure that such portion of the Backhaul or Wavelength(s) operates within the parameters of the applicable Testing Specifications. Following the second such attempt by the parties to agree on the Acceptance Testing results, if Purchaser asserts that the test results demonstrate the Backhaul or Wavelength(s)other deliverables, or any portion thereof, does to be provided pursuant to any Phase do not meet materially conform to the applicable Testing Specifications (“Compliancy”)Acceptance Standard, both parties then UPS shall choose an independent engineer so notify Tumbleweed in writing specifying the nature of such failure, and Tumbleweed shall have [ * ] to establish whether correct such failure after which UPS shall have [ * ] to repeat the test results establish Compliancy or notAcceptance Tests according to the above process; provided, however that UPS will use reasonable efforts to notify Tumbleweed as promptly as possible during the initial Acceptance Test Period when and as such failures are identified. If the independent engineer confirms CompliancySoftware, Purchaser Documentation and other deliverables again fail to pass the Acceptance Tests, UPS's sole and exclusive remedy shall be deemed to have accepted the Backhaul or Wavelength(s) and reimburse Seller for the actual cost elect one of the independent engineer following options in its sole discretion: (i) the parties may mutually agree that Tumbleweed shall have an additional [ * ] to correct the failure, in which case the above process (including, without limitation, these remedies) shall be repeated; (ii) UPS may accept the applicable Software, Documentation and other deliverables despite the actual internal and out-of-pocket costs nonconformities; (iii) the Acceptance Tests associated with either Phase I or Phase II of extra testing. If this Agreement, UPS may terminate the independent engineer confirms Purchaser’s test resultsAgreement, Seller will complete expeditiously the corrective action necessary to achieve Compliancy and pay for the actual cost whereupon UPS, at its sole option, may elect one (1) of the independent engineer and for following remedies: (X) Tumbleweed will [ * ] which amount is agreed by the actual internal and out-of-pocket costs incurred by Purchaser for such extra testing.
4.2.6 In parties to be the event Purchaser does not object deemed --------------- [*]Confidential treatment has been requested with respect to the results of any of Seller’ Acceptance Testing or its own Acceptance Testing within the time periods specified certain information contained in Section 4.2.3, Purchaser shall be deemed to have accepted the Backhaul or Wavelength(s) as of the first day following the end of such periodthis document. The date on which Purchaser issues its notice accepting the Backhaul or Wavelength(s), or on which it is deemed to accept the Backhaul or Wavelength(s), as the case may be, under this *** Portions hereof Confidential portions have been omitted from the public filing and have been filed separately with the Securities and Exchange Commission Commission. UPS/Tumbleweed Confidential 13 December 18, 1997 amount of damages suffered by UPS as a result of such failure and not a penalty, in which event all licenses granted hereunder shall terminate, Section 15 shall terminate, and the provisions of Section 16(c) shall apply, or (Y) Section 15 shall continue to apply, in which event all licenses granted hereunder shall terminate and the provisions of Section 16(c) shall apply, but Tumbleweed shall not be obligated to pay to UPS the aforementioned [ * ] or (iv) for Acceptance Tests associated with Phases beyond Phase II of this Agreement, UPS may terminate such Phase(s), whereupon Tumbleweed will promptly refund to UPS all amounts paid to Tumbleweed in connection with such Phase(s). Notwithstanding anything to the contrary herein, acceptance of Phase II shall be deemed to have occurred when UPS begins using the Software associated with Phase II of the Project to support revenue generating customers of the Messaging Service. Such date shall be defined as the "Commercial Availability Date." In the event that Tumbleweed fails to deliver the Software, Documentation and other deliverables associated with Phase I or Phase II of this Agreement by the final delivery date set forth in the Implementation Schedule set forth in Exhibit D hereto, or in the event UPS elects option (i) above with respect to Acceptance Tests associated with either Phase I or Phase II of this Agreement, then as UPS's sole and exclusive remedy for any delay in passing the Acceptance Tests associated with Phase I and Phase II of this Agreement on or before the scheduled acceptance milestone date therefor (as specified in the Implementation Schedule), UPS may elect one of the following options in its sole discretion: (x) UPS may terminate this Agreement, whereupon UPS, at its sole option, may elect one (1) of the following remedies: (A) Tumbleweed [ * ], which amount is agreed by the parties to be the deemed amount of damages suffered by UPS as a result of such failure and not a penalty, in which event all licenses granted hereunder shall terminate, Section 15 shall terminate, and the provisions of Section 16(c) shall apply, or (B) Section 15 shall continue to apply, in which event all licenses granted hereunder shall terminate and the provisions of Section 16(c) shall apply, but Tumbleweed shall not be obligated to pay to UPS the aforementioned [ * ]; or (y) the parties may mutually agree that Tumbleweed shall continue performing, in which event UPS will be entitled to deduct from the amounts otherwise payable hereunder, as damages for any delay of up to thirty (30) days ("Delay Damages"), [ * ] for each calendar day that the Software, Documentation and other deliverables associated with Phase I or Phase II of this Agreement fail to pass the Acceptance Tests beyond the scheduled milestone date therefor (as specified in the Implementation Schedule). The foregoing Delay Damages are agreed by the parties to be the deemed amount of damages suffered by UPS as a result of any such delay of up to thirty (30) days and not a penalty. Any failure of the Software, Documentation and other deliverables --------------- [*]Confidential treatment has been requested with respect to certain information contained in this document. Confidential portions have been omitted from the public filing and have been filed separately with the Securities and Exchange Commission. UPS/Tumbleweed Confidential 14 December 18, 1997 associated with Phase I or Phase II of this Agreement to pass the Acceptance Tests within thirty (30) days of the scheduled acceptance milestone date therefor (as specified in the Implementation Schedule, as such dates may be extended pursuant to a request for confidential treatment in accordance with Rule 406Section 2(j)) shall constitute non-delivery by Tumbleweed.
Appears in 1 contract
Sources: Software License, Development and Services Agreement (Tumbleweed Software Corp)
Acceptance Testing. 4.2.1 Seller (a) Upon the initial connection, repair or restoration of any Port for which Port Access Services are provided, KMC shall test conduct tests to establish that the Backhaul Port functions properly and Wavelength(s) using procedures in accordance with industry standards (“Acceptance Testing”) to verify that such Backhaul is operating in accordance with satisfies the Technical Specifications applicable acceptance tests set forth in Exhibit B Schedule 2 (the "Acceptance Tests"). If KMC's test results under this Section establish that a newly-connected, repaired or restored Port functions properly and satisfies the Acceptance Tests, and Qwest reports to KMC in writing that it accepts such Wavelength(s) are operating in accordance with test results or fails to report otherwise within the Technical Specifications applicable acceptance period set forth in Exhibit C. Seller shall provide Purchaser with five (5Subsection 1.4(c) Business Days’ prior written notice (which notice may be sent by facsimile or e-mail in this case only) of below, the date and time of each applicable test.
4.2.2 After the successful conclusion of the Acceptance Testing conducted by Seller with respect to the Backhaul or Wavelength(s), Seller shall provide Purchaser with an electronic notice that the Backhaul or the applicable Wavelength(s), as applicable, is available for use (“Turn Up Acknowledgement” or “TUA”).
4.2.3 After receipt by Purchaser from Seller of the TUA, Purchaser shall have five (5) Business Days to conduct its own Acceptance Testing to verify that it is operating in accordance with the applicable Testing Specifications (“Testing Period”). If Purchaser determines that such test results show that the Backhaul or Wavelength(s) or any portion thereof do not meet the applicable Testing Specifications, Purchaser shall, within the Testing Period, notify Seller’ Service Delivery Department in writing that the Capacity does not comply with the Testing Specifications, and, if, upon investigation, such non-compliance is due solely to Seller’ fault, then Seller shall correct the non-compliance as set forth in Section 3.1.3 below.
4.2.4 In the event Purchaser notifies Seller within the time periods set forth in Section 4.2.2 that the Backhaul or Wavelength(s), or any portion thereof is not operating within the parameters of the applicable Testing Specifications, Seller shall expeditiously take such action as shall be necessary with respect to such portion of the Backhaul or Wavelength(s) to bring the operating standards of such portion of the Backhaul or Wavelength(s) into compliance, after which such portion of the Backhaul or Wavelength(s) shall be re-tested in accordance with the provisions of this Section 4. After taking such actions and re-testing, Seller shall provide Purchaser with a re-tested TUA and Purchaser shall again have all rights provided in this Section 4.
4.2.5 The cycle described above of testing, taking corrective action and re-testing shall take place a maximum of two (2) times as necessary to ensure that such portion of the Backhaul or Wavelength(s) operates within the parameters of the applicable Testing Specifications. Following the second such attempt by the parties to agree on the Acceptance Testing results, if Purchaser asserts that the test results demonstrate the Backhaul or Wavelength(s), or any portion thereof, does not meet the applicable Testing Specifications (“Compliancy”), both parties shall choose an independent engineer to establish whether the test results establish Compliancy or not. If the independent engineer confirms Compliancy, Purchaser Port shall be deemed to satisfy the Acceptance Tests.
(b) If KMC's tests establish that a newly-connected, repaired or restored Port for which Port Access Services are provided does not function properly and/or satisfy the Acceptance Tests, or Qwest reports to KMC within the applicable acceptance period that such Port is not functioning properly or satisfying the Acceptance Tests, KMC shall immediately commence and shall diligently and continuously pursue efforts to bring it into compliance therewith. Upon completion of such efforts, KMC shall notify Qwest that the affected Port satisfies the Acceptance Tests, which shall again be subject to the acceptance procedures set forth in this Section. KMC shall have accepted [text deleted] opportunities to bring such Port or alternate Port at such location into compliance with the Backhaul Acceptance Tests, and if the second (or Wavelength(sany further) and reimburse Seller attempt is unsuccessful, Qwest may, in its sole discretion: (i) continue to permit KMC to attempt to bring the Port into compliance with the Acceptance Tests; (ii) require KMC to immediately provide a different Port for the actual cost of Port Access Services, in which case, the independent engineer reprovisioned Port shall be subject to the acceptance procedures set forth in this Section; or (iii) discontinue the Port and its associated Port Access Services and reduce the actual internal and outthen-of-pocket costs of extra testing. If current Port Access Service Fees by the independent engineer confirms Purchaser’s test results, Seller will complete expeditiously the corrective action necessary amount set forth on Appendix B to achieve Compliancy and pay for the actual cost of the independent engineer and for the actual internal and out-of-pocket costs incurred by Purchaser for such extra testingSchedule 1.
4.2.6 (c) The acceptance period for Ports associated with newly-ordered Port Access Services shall be [text deleted] after delivery of KMC's test results to Qwest. In the event Purchaser does not object to case of a repaired or restored Port, the results of any of Seller’ Acceptance Testing or its own Acceptance Testing within the time periods specified in Section 4.2.3, Purchaser acceptance period shall be deemed [text deleted] after delivery of KMC's test results to have accepted the Backhaul or Wavelength(s) as of the first day following the end of such period. The date on which Purchaser issues its notice accepting the Backhaul or Wavelength(s), or on which it is deemed to accept the Backhaul or Wavelength(s), as the case may be, under this *** Portions hereof have been omitted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment in accordance with Rule 406Qwest.
Appears in 1 contract
Sources: Port Access Services Agreement (KMC Telecom Holdings Inc)
Acceptance Testing. 4.2.1 The "Phase 2" and "Phase 3" Monitors shall be ------------------ submitted to Buyer for acceptance testing. A representative of Seller will jointly perform acceptance testing with Buyer. If the tested Monitor does not meet the Specifications, Seller shall test promptly correct and re-submit the Backhaul and Wavelength(s) using procedures in accordance with industry standards (“Acceptance Testing”) to verify that such Backhaul is operating Monitor for additional testing. When the Monitor performs in accordance with the Technical Specifications set forth and Buyer has acknowledged such performance in Exhibit B and that writing, such Wavelength(s) are operating phase of Monitor shall be shipped to Buyer in accordance with the Technical Specifications set forth in Exhibit C. Seller shall provide Purchaser with five (5) Business Days’ prior written notice (which notice may be sent by facsimile or e-mail in this case only) lieu of the date and time previous phase of each applicable test.
4.2.2 After the successful conclusion of the Acceptance Testing conducted by Seller Monitor commencing with respect to all future POs (as defined below) received following Buyer's acceptance and FDA clearance of such phase of Monitor. If any phase of Monitor fails to meet the Backhaul or Wavelength(s), Seller shall provide Purchaser with an electronic notice that the Backhaul or the applicable Wavelength(s), as applicable, is available for use Specifications within thirty (“Turn Up Acknowledgement” or “TUA”).
4.2.3 After receipt by Purchaser from Seller 30) days of the TUAinitial submission of such phase to Buyer for acceptance, Purchaser Buyer shall have five (5) Business Days the right to conduct its own Acceptance Testing either terminate this Agreement or to verify that it is operating in accordance with the applicable Testing Specifications (“Testing Period”). If Purchaser determines that utilize other suppliers of Monitors until such test results show that the Backhaul or Wavelength(s) or any portion thereof do not meet the applicable Testing time as such phase of Monitor meets such Specifications, Purchaser shallat Buyer's option, within and if the Testing Periodfailure relates to "Phase 3" Monitors and Buyer elects to terminate, notify Buyer shall have the right to require Seller to ship "Phase 2" Monitors until an adequate substitute for Seller’ Service Delivery Department in writing that the Capacity does not comply with the Testing Specifications, and, if, upon investigation, such non-compliance is due solely to Seller’ fault, then Seller shall correct the non-compliance as set forth in Section 3.1.3 below.
4.2.4 's Monitors can be found. In the event Purchaser of Buyer's election to terminate, Buyer shall be obligated to purchase only those Monitors for which it has already provided Purchase Commitments (as defined below) to Seller, plus those "Phase 2" Monitors for which Buyer submits Purchase Commitments from the date of Buyer's election to terminate the Agreement through the effective date of such termination (i.e., the date upon ---- which Buyer notifies Seller within the time periods set forth in Section 4.2.2 that the Backhaul or Wavelength(sBuyer has found an adequate substitute for Seller's Monitors), or any portion thereof is not operating within the parameters of the applicable Testing Specifications, Seller shall expeditiously take such action as shall be necessary with respect to such portion of the Backhaul or Wavelength(s) to bring the operating standards of such portion of the Backhaul or Wavelength(s) into compliance, after which such portion of the Backhaul or Wavelength(s) shall be re-tested in accordance with the provisions of this Section 4. After taking such actions and re-testing, Seller shall provide Purchaser with a re-tested TUA and Purchaser shall again have all rights provided in this Section 4.
4.2.5 The cycle described above of testing, taking corrective action and re-testing shall take place a maximum of two (2) times as necessary to ensure that such portion of the Backhaul or Wavelength(s) operates within the parameters of the applicable Testing Specifications. Following the second such attempt by the parties to agree on the Acceptance Testing results, if Purchaser asserts that the test results demonstrate the Backhaul or Wavelength(s), or any portion thereof, does not meet the applicable Testing Specifications (“Compliancy”), both parties shall choose an independent engineer to establish whether the test results establish Compliancy or not. If the independent engineer confirms Compliancy, Purchaser shall be deemed to have accepted the Backhaul or Wavelength(s) and reimburse Seller for the actual cost of the independent engineer and the actual internal and out-of-pocket costs of extra testing. If the independent engineer confirms Purchaser’s test results, Seller will complete expeditiously the corrective action necessary to achieve Compliancy and pay for the actual cost of the independent engineer and for the actual internal and out-of-pocket costs incurred by Purchaser for such extra testing.
4.2.6 In the event Purchaser does not object to the results of any of Seller’ Acceptance Testing or its own Acceptance Testing within the time periods specified in Section 4.2.3, Purchaser shall be deemed to have accepted the Backhaul or Wavelength(s) as of the first day following the end of such period. The date on which Purchaser issues its notice accepting the Backhaul or Wavelength(s), or on which it is deemed to accept the Backhaul or Wavelength(s), as the case may be, under this *** Portions hereof have been omitted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment in accordance with Rule 406.
Appears in 1 contract
Sources: License and Purchase Agreement (Cardiodynamics International Corp)
Acceptance Testing. 4.2.1 Seller 4.1 All Licensed Software shall test the Backhaul and Wavelength(s) using procedures in accordance with industry standards (“Acceptance Testing”) to verify that such Backhaul is operating be tested in accordance with the Technical Specifications set forth in Exhibit B terms of this Clause 4 to determine whether it is fully operate, meets all applicable specifications and that such Wavelength(s) are operating will function in accordance with the Technical Specifications set forth in Exhibit C. Seller shall provide Purchaser with five Documentation when properly installed and used for its intended purpose on the Licensee’s Systems (5) Business Days’ prior written notice (which notice may be sent by facsimile or e-mail in this case only) of the date and time of each applicable test.
4.2.2 After the successful conclusion of the “Acceptance Testing conducted by Seller with respect to the Backhaul or Wavelength(s), Seller shall provide Purchaser with an electronic notice that the Backhaul or the applicable Wavelength(s), as applicable, is available for use (“Turn Up Acknowledgement” or “TUATests”).
4.2.3 After receipt by Purchaser from Seller 4.2 Upon the delivery of the TUALicensed Software, Purchaser the Licensee shall have five conduct all Acceptance Tests to determine whether, and the extent to which:
(5a) the Licensed Software conforms to the requirements of this Agreement, including the full operability, integration, interoperability and compatibility of the Licensed Software with the components and functions of the Licensee’s Systems in accordance with the Documentation; and
(b) the Documentation effectively supports the Licensed Software, is complete and free of any deficiencies.
4.3 All Acceptance Tests shall:
(a) begin with a commercially reasonable time following delivery of the Licensed Software; and
(b) be conducted by the Licensee for up to one-hundred and eighty (180) days from the date of the Licensee’s receipt of the Licensed Software (the “Testing Period”).
4.4 The Licensee may suspend the Acceptance Tests and the corresponding Test Period by written notice to the Licensor if the Licensee discovers a Nonconformity in the tested Licensed Software or part or feature thereof. In such event, the Licensor shall immediately, and in any case within ten (10) Business Days, correct such Nonconformity, whereupon the Acceptance Tests and Testing Period shall resume for the balance of the Testing Period.
4.5 Within ten (10) Business Days following the completion of any Acceptance Tests, the Licensee shall prepare and provide to conduct its own the other party written notice of the completion of the tests. Such notice shall include a report describing in reasonable detail the tests conducted and the results thereof, including any uncorrected Nonconformity in the tested Licensed Software (a “Nonconformance Notice”). If such notice identifies any Nonconformities, the parties’ rights, remedies and obligations will be as set forth in Clauses 4.6 and 4.7. If such notice provided by the Licensee identifies no Nonconformities, such notice shall constitute the Licensee’s Acceptance Testing to verify that it is operating of the tested Licensed Software.
4.6 If the Acceptance Tests identify any Nonconformities, the Licensor, at the Licensor’s sole cost and expense, shall remedy all such Nonconformities and redeliver the Licensed Software, in accordance with the applicable Testing Specifications (“Testing Period”). If Purchaser determines that such test results show that requirements of this Agreement and the Backhaul or Wavelength(s) or Documentation as promptly as commercially possible and, in any portion thereof do not meet the applicable Testing Specifications, Purchaser shallcase, within ten (10) days following its receipt of the Testing PeriodLicensee’s Nonconformance Notice.
4.7 If Acceptance Tests identify any Nonconformity in any Licensed Software after a second or subsequent delivery thereof, notify Seller’ Service Delivery Department or the Licensor fails to redeliver any Licensed Software on a timely basis, the Licensee may, in writing that its sole discretion, by written notice to the Capacity does not comply with Licensor:
(a) continue the Testing Specifications, and, if, upon investigation, such non-compliance is due solely to Seller’ fault, then Seller shall correct the non-compliance as process set forth in Section 3.1.3 belowthis Clause 4; or
(b) accept the nonconforming Licensed Software, in which case the Consideration shall be reduced equitably to reflect the value of the Licensed Software as received relative to the value of the Licensed Software had it conformed to the requirements and specifications of this Agreement and the Documentation; or
(c) deem the failure to be a non-curable material breach of this Agreement and terminate this Agreement pursuant to Clause 11.3.
4.2.4 In the event Purchaser notifies Seller within the time periods set forth in Section 4.2.2 that the Backhaul or Wavelength(s), or any portion thereof is not operating within the parameters 4.8 Acceptance of the applicable Testing SpecificationsLicensed Software (“Acceptance”) shall occur, Seller shall expeditiously take if at all, on the date that is the earlier of:
(a) the Licensee’s delivery of a notice accepting such action as shall be necessary with respect Licensed Software pursuant to such portion Clause 4.5; or
(b) ten (10) Business Days after the expiration of the Backhaul Testing Period if the Licensee has not notified the Licensor of one or Wavelength(s) to bring the operating standards of such portion of the Backhaul or Wavelength(s) into compliance, after which such portion of the Backhaul or Wavelength(s) shall be re-tested in accordance with the provisions of this Section 4. After taking such actions and re-testing, Seller shall provide Purchaser with a re-tested TUA and Purchaser shall again have all rights provided in this Section 4more Nonconformities prior thereto.
4.2.5 The cycle described above of testing, taking corrective action and re-testing shall take place a maximum of two (2) times as necessary to ensure that such portion of the Backhaul or Wavelength(s) operates within the parameters of the applicable Testing Specifications. Following the second such attempt by the parties to agree on the Acceptance Testing results, if Purchaser asserts that the test results demonstrate the Backhaul or Wavelength(s), or any portion thereof, does not meet the applicable Testing Specifications (“Compliancy”), both parties shall choose an independent engineer to establish whether the test results establish Compliancy or not. If the independent engineer confirms Compliancy, Purchaser shall be deemed to have accepted the Backhaul or Wavelength(s) and reimburse Seller for the actual cost of the independent engineer and the actual internal and out-of-pocket costs of extra testing. If the independent engineer confirms Purchaser’s test results, Seller will complete expeditiously the corrective action necessary to achieve Compliancy and pay for the actual cost of the independent engineer and for the actual internal and out-of-pocket costs incurred by Purchaser for such extra testing.
4.2.6 In the event Purchaser does not object to the results of any of Seller’ Acceptance Testing or its own Acceptance Testing within the time periods specified in Section 4.2.3, Purchaser shall be deemed to have accepted the Backhaul or Wavelength(s) as of the first day following the end of such period. The date on which Purchaser issues its notice accepting the Backhaul or Wavelength(s), or on which it is deemed to accept the Backhaul or Wavelength(s), as the case may be, under this *** Portions hereof have been omitted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment in accordance with Rule 406.
Appears in 1 contract
Sources: License Agreement (Sharing Economy International Inc.)
Acceptance Testing. 4.2.1 Seller Prior to delivery of the Deliverables to ------------------ AOL, TiVo will perform its standard qualification testing. Specifically, TiVo's standard qualification testing shall include without limitation (A) efforts to diagnose any failure of the Deliverable to comply with the Specifications and the Acceptance Criteria prior to and during any testing; and (B) correction of any such failure diagnosed by TiVo or reported to TiVo in writing. Within [*]days of receipt, AOL will test the Backhaul and Wavelength(s) using procedures Deliverables (including, without limitation, all Documentation therefor), in accordance with industry standards (“standard diagnostic practices, to determine whether or not it substantially complies with the Acceptance Testing”) Criteria. AOL shall, within such [*]day period, provide TiVo with written Acceptance of the Deliverable or a statement identifying any failure of the Deliverable to verify comply with the Acceptance Criteria in sufficient detail for TiVo to recreate such non-compliance. In the event AOL identifies such a failure and rejects the Deliverable, TiVo shall have [*]days from TiVo's receipt of notice of such rejection to repair the failure and resubmit the units of the repaired Deliverable for testing. AOL shall then have [*]days after receipt of the resubmitted Deliverable to determine whether such version passes Acceptance testing. The Parties may repeat the aforementioned process, provided, however, that such Backhaul is operating [*]to deliver a Deliverable that has been accepted by AOL in accordance with this Section by the Technical Specifications set forth date specified for "AOLTV Application Manufacturing Release as a Third Party Application", in Exhibit B and that such Wavelength(s) are operating in accordance with the Technical Specifications set forth in Exhibit C. Seller shall provide Purchaser with five (5) Business Days’ prior written notice (which notice may be sent by facsimile or e-mail in this case only) of the AOLTV Application, the date and time of each applicable test.
4.2.2 After specified for "Mercury Application Manufacturing Release as a Third Party Application", in the successful conclusion case of the Acceptance Testing conducted Mercury Application, or by Seller with respect the date specified for "Full prototype demo; [*]", in the case of[*]in the Milestone Schedule, as mutually adjusted pursuant to the Backhaul Section 3.4 (or Wavelength(s), Seller shall provide Purchaser with an electronic notice that the Backhaul Sections 3.1(c) or the applicable Wavelength(s3.2(b), as applicable, is available for use (“Turn Up Acknowledgement” or “TUA”).
4.2.3 After receipt by Purchaser from Seller ) shall [*]of the TUA, Purchaser shall have five (5) Business Days to conduct its own Acceptance Testing to verify that it is operating in accordance with the applicable Testing Specifications (“Testing Period”)this Agreement. If Purchaser determines that Each such test results show that the Backhaul or Wavelength(s) or any portion thereof do not meet the applicable Testing Specifications, Purchaser shall, within the Testing Period, notify Seller’ Service Delivery Department in writing that the Capacity does not comply with the Testing Specifications, and, if, upon investigation, such non-compliance is due solely to Seller’ fault, then Seller shall correct the non-compliance as set forth in Section 3.1.3 below.
4.2.4 In the event Purchaser notifies Seller within the time periods set forth in Section 4.2.2 that the Backhaul or Wavelength(s), or any portion thereof is not operating within the parameters of the applicable Testing Specifications, Seller shall expeditiously take such action as date shall be necessary with respect to such portion of the Backhaul or Wavelength(s) to bring the operating standards of such portion of the Backhaul or Wavelength(s) into compliance, after which such portion of the Backhaul or Wavelength(s) shall be re-tested in accordance with the provisions of [*] --------------------- [*] Certain information on this Section 4. After taking such actions and re-testing, Seller shall provide Purchaser with a re-tested TUA and Purchaser shall again have all rights provided in this Section 4.
4.2.5 The cycle described above of testing, taking corrective action and re-testing shall take place a maximum of two (2) times as necessary to ensure that such portion of the Backhaul or Wavelength(s) operates within the parameters of the applicable Testing Specifications. Following the second such attempt by the parties to agree on the Acceptance Testing results, if Purchaser asserts that the test results demonstrate the Backhaul or Wavelength(s), or any portion thereof, does not meet the applicable Testing Specifications (“Compliancy”), both parties shall choose an independent engineer to establish whether the test results establish Compliancy or not. If the independent engineer confirms Compliancy, Purchaser shall be deemed to have accepted the Backhaul or Wavelength(s) and reimburse Seller for the actual cost of the independent engineer and the actual internal and out-of-pocket costs of extra testing. If the independent engineer confirms Purchaser’s test results, Seller will complete expeditiously the corrective action necessary to achieve Compliancy and pay for the actual cost of the independent engineer and for the actual internal and out-of-pocket costs incurred by Purchaser for such extra testing.
4.2.6 In the event Purchaser does not object to the results of any of Seller’ Acceptance Testing or its own Acceptance Testing within the time periods specified in Section 4.2.3, Purchaser shall be deemed to have accepted the Backhaul or Wavelength(s) as of the first day following the end of such period. The date on which Purchaser issues its notice accepting the Backhaul or Wavelength(s), or on which it is deemed to accept the Backhaul or Wavelength(s), as the case may be, under this *** Portions hereof have page has been omitted and filed separately with the Securities and Exchange Commission pursuant Commission. Confidential treatment has been requested with respect to a request for confidential treatment in accordance with Rule 406the omitted portions.
Appears in 1 contract