Common use of Software Fees Clause in Contracts

Software Fees. (A) MANAGER ACKNOWLEDGES THAT (I) IT CURRENTLY HAS AN INDEPENDENT LICENSING ARRANGEMENT FOR SOFTWARE IN EFFECT ON THE DATE OF THIS ADDENDUM THAT CONTINUES SO LONG AS MANAGER IS AN AFFILIATE OF SPRINT PCS, (II) SUCH INDEPENDENT LICENSING ARRANGEMENT DOES NOT NECESSARILY EXTEND TO FUTURE IMPROVEMENTS UPON OR EXPANSIONS OF SUCH SOFTWARE, OR INCLUDE ANY NEW SOFTWARE DEVELOPED BY OR FOR SPRINT PCS IN CONNECTION WITH PROGRAM REQUIREMENTS AND (III) SPRINT PCS ADMINISTERS THE TESTING AND IMPLEMENTATION OF THE SOFTWARE INTO THE SERVICE AREA NETWORK. (B) SPRINT PCS WILL USE COMMERCIALLY REASONABLE EFFORTS TO OBTAIN A LICENSE PROVIDING FOR THE RIGHT OF MANAGER TO USE THE SOFTWARE (CURRENTLY EXISTING OR DEVELOPED IN THE FUTURE) OR TO USE THE IMPROVEMENTS UPON OR EXPANSIONS OF THE EXISTING OR NEWLY DEVELOPED SOFTWARE FROM VENDORS IN CONNECTION WITH A TELECOMMUNICATIONS EQUIPMENT PURCHASE AGREEMENT THAT IS NOT COVERED BY MANAGER'S EXISTING LICENSES (COLLECTIVELY FOR PURPOSES OF THIS SECTION 1.3.4, THE "VENDOR SOFTWARE"). (C) MANAGER WILL ARRANGE INDEPENDENTLY WITH THE VENDOR TO OBTAIN A LICENSE IF SPRINT PCS CANNOT REASONABLY OBTAIN A LICENSE FOR MANAGER. ANY LICENSE OBTAINED BY MANAGER FROM A VENDOR MUST REQUIRE THE VENDOR SOFTWARE TO BE TESTED IN SPRINT PCS TEST BEDS BY SPRINT PCS AND REQUIRE SPRINT PCS TO PUSH THE SOFTWARE TO THE SERVICE AREA NETWORK, NOT THE VENDOR OR MANAGER, UNLESS OTHERWISE CONSENTED TO IN ADVANCE BY SPRINT PCS IN WRITING. (D) SPRINT PCS WILL PAY ALL SOFTWARE FEES TO THE VENDOR IF SPRINT PCS OBTAINS A LICENSE FROM THE VENDOR THAT PROVIDES MANAGER THE RIGHT TO USE THE VENDOR SOFTWARE AND SPRINT PCS REASONABLY EXPECTS MANAGER TO PAY ITS ALLOCABLE SOFTWARE FEE. (E) SPRINT PCS WILL NOTIFY MANAGER IN WRITING AT LEAST 60 DAYS BEFORE (I) THE DATE OF AN AUTOMATIC RENEWAL OF OR UNILATERAL ACT OF SPRINT PCS TO RENEW OR EXTEND AN AGREEMENT THAT PROVIDES SPRINT PCS THE RIGHT TO USE THE VENDOR SOFTWARE OR (II) SPRINT PCS INTENDS TO START NEGOTIATIONS WITH A VENDOR REGARDING PRICING OR OTHER MATERIAL TERMS RELATING TO MANAGER'S RIGHT TO USE THE VENDOR SOFTWARE (WHETHER FOR NEW SOFTWARE OR RENEWAL OF AN EXISTING LICENSE). MANAGER MUST NOTIFY SPRINT PCS IN WRITING WITHIN 30 DAYS AFTER RECEIVING THE NOTICE DESCRIBED IN THE PRECEDING SENTENCE IF MANAGER WANTS SPRINT PCS TO ATTEMPT TO OBTAIN A RIGHT FOR MANAGER TO USE THE VENDOR SOFTWARE. SPRINT PCS WILL RENEW OR NEGOTIATE THE AGREEMENT AS IF MANAGER WILL NOT BE A USER OF THE VENDOR SOFTWARE IF MANAGER DOES NOT PROVIDE NOTICE TO SPRINT PCS WITHIN THE 30-DAY PERIOD. HOWEVER, SPRINT PCS MAY OBTAIN PRICING FROM THE VENDOR FOR THE VENDOR SOFTWARE THAT INCLUDES MANAGER AS A USER AS LONG AS OBTAINING THE PRICING DOES NOT OBLIGATE MANAGER TO BE A USER. SPRINT PCS WILL ADVISE MANAGER FROM TIME TO TIME OF THE STATUS OF THE SOFTWARE NEGOTIATIONS IF MANAGER REQUESTED SPRINT PCS TO OBTAIN OR CONTINUE THE RIGHT FOR MANAGER TO USE THE VENDOR SOFTWARE UNDER SPRINT PCS' AGREEMENT WITH THE VENDOR. SPRINT PCS WILL GIVE MANAGER NOTICE OF THE FINAL PRICING FOR THE RIGHT TO USE THE VENDOR SOFTWARE A REASONABLE TIME BEFORE THE EXPECTED EXECUTION OR RENEWAL OF THE AGREEMENT. MANAGER MAY GIVE SPRINT PCS NOTICE BY THE TIME SET FORTH IN SPRINT PCS' NOTICE TO MANAGER (WHICH TIME WILL NOT BE LESS THAN 10 BUSINESS DAYS) THAT MANAGER DOES NOT INTEND TO USE THE VENDOR SOFTWARE THROUGH THE AGREEMENT BETWEEN SPRINT PCS AND THE VENDOR. IF MANAGER DOES NOT GIVE THIS FINAL NOTICE TO SPRINT PCS, MANAGER WILL BE DEEMED TO AGREE TO BE A USER OF THE VENDOR SOFTWARE THROUGH THE AGREEMENT BETWEEN SPRINT PCS AND THE VENDOR AND WILL PAY THE ALLOCABLE SOFTWARE FEE. (F) MANAGER WILL PAY SPRINT PCS A FEE FOR SPRINT PCS' ADMINISTRATION AND IMPLEMENTATION OF THE VENDOR SOFTWARE AND MANAGER'S RIGHT TO USE THE VENDOR SOFTWARE ("ALLOCABLE SOFTWARE FEE") WITHIN 30 DAYS AFTER RECEIPT OF AN INVOICE IF MANAGER HAS NOT TAKEN THE ACTION DESCRIBED IN THE PREVIOUS PARAGRAPHS AND SPRINT PCS OBTAINS A LICENSE PROVIDING FOR THE RIGHT OF MANAGER TO USE THE VENDOR SOFTWARE. SPRINT PCS WILL ▇▇▇▇ THE MANAGER ONLY AFTER SPRINT PCS PAYS THE UNDERLYING SOFTWARE FEE TO THE VENDOR. SPRINT PCS WILL CALCULATE THE ALLOCABLE SOFTWARE FEE AS FOLLOWS: FOR EACH SOFTWARE VENDOR, MULTIPLY (I) THE SOFTWARE FEES ATTRIBUTABLE TO THE VENDOR SOFTWARE AND FOR WHICH SPRINT PCS HAS OBTAINED FOR ITSELF, MANAGER AND OTHER MANAGERS A LICENSE OR OTHER RIGHT TO USE BY (II) THE QUOTIENT OF (A) THE NUMBER OF CUSTOMERS AND SPRINT PCS RESELLER CUSTOMERS WITH AN NPA-NXX ASSIGNED TO THE SERVICE AREA THAT ARE ASSIGNED TO A SYSTEM USING THE VENDOR SOFTWARE, AS REPORTED IN THE MOST RECENT MONTHLY REPORT ISSUED BY SPRINT PCS BEFORE THE DATE THAT SPRINT PCS PREPARES AN ALLOCABLE SOFTWARE FEE INVOICE, DIVIDED BY (B) THE NUMBER OF CUSTOMERS AND SPRINT PCS RESELLER CUSTOMERS THAT ARE ASSIGNED TO A SYSTEM USING THE VENDOR SOFTWARE, AS REPORTED IN THE MOST RECENT MONTHLY REPORT ISSUED BY SPRINT PCS BEFORE THE DATE THAT SPRINT PCS PREPARES AN ALLOCABLE SOFTWARE FEE INVOICE. (G) SPRINT PCS WILL INCLUDE WITH THE INVOICE FOR THE ALLOCABLE SOFTWARE FEE A LIST OF THE COMPONENT CHARGES, IF DETERMINABLE. THE SOFTWARE FEES PAID BY SPRINT PCS TO THE VENDOR WILL REFLECT COMMERCIAL RATES NEGOTIATED AT ARMS' LENGTH. FOR PURPOSES OF CLARIFICATION, THE PARTIES ACKNOWLEDGE THE VENDOR MAY INSIST ON A COMPREHENSIVE FEE WITHOUT LISTING EACH COMPONENT, BUT RATHER ASSERT THE FEE COVERS ALL SOFTWARE NECESSARY TO OPERATE THE EQUIPMENT. (H) MANAGER WILL NOT BE CHARGED THE ALLOCABLE SOFTWARE FEE FOR THAT VENDOR SOFTWARE IF MANAGER (I) NOTIFIES SPRINT PCS IN WRITING WITHIN THE PERIOD ALLOWED THAT MANAGER DECLINES TO HAVE SPRINT PCS OBTAIN A RIGHT FOR MANAGER TO USE THE VENDOR SOFTWARE OR GIVES FINAL NOTICE TO SPRINT PCS THAT IT DOES NOT INTEND TO USE THE VENDOR SOFTWARE, (II) OBTAINS ITS OWN LICENSE PROVIDING FOR MANAGER'S RIGHT TO USE THE VENDOR SOFTWARE, AND (III) COMPLIES WITH THE REQUIREMENTS OF SECTION 1.3.4(I). (I) MANAGER WILL OBTAIN ITS OWN LICENSE PROVIDING FOR MANAGER'S RIGHT TO USE THE VENDOR SOFTWARE FROM THE VENDOR IF MANAGER ELECTS NOT TO HAVE SPRINT PCS ATTEMPT TO OBTAIN A RIGHT FOR MANAGER TO USE THE VENDOR SOFTWARE UNDER SECTION 1.3.4(E). MANAGER WILL NOTIFY SPRINT PCS IN WRITING AND DELIVER TO SPRINT PCS WITHIN 10 DAYS AFTER MANAGER'S EXECUTION OF MANAGER'S SEPARATE LICENSE, A SIGNED DOCUMENT FROM THE VENDOR CONFIRMING THAT (A) THE VENDOR HAS PROVIDED MANAGER A SEPARATE LICENSE FOR THE VENDOR SOFTWARE AND THE TERM OF THAT LICENSE, WHICH TERM WITH APPROPRIATE RENEWAL RIGHTS, MUST BE AT LEAST AS LONG AS THE LICENSE SPRINT PCS HAS FROM THE VENDOR, (B) THE FEES PAID BY MANAGER TO THE VENDOR REFLECT COMMERCIAL RATES NEGOTIATED AT ARMS' LENGTH, (C) THE VENDOR SOFTWARE COVERED BY MANAGER'S LICENSE PROVIDES THE SAME USAGE AND FUNCTIONALITY FOR ALL OF THE SAME NETWORK ELEMENTS AS SPRINT PCS' LICENSE, AND (D) THE VENDOR SOFTWARE MAY BE TESTED IN SPRINT PCS TEST BEDS BY SPRINT PCS AND WILL BE PUSHED TO THE SERVICE AREA NETWORK BY SPRINT PCS, NOT THE VENDOR OR MANAGER, UNLESS OTHERWISE CONSENTED TO IN ADVANCE IN WRITING BY SPRINT PCS.

Software Fees. (Aa) MANAGER ACKNOWLEDGES THAT (Ii) IT CURRENTLY HAS AN INDEPENDENT LICENSING ARRANGEMENT FOR SOFTWARE IN EFFECT ON THE DATE OF THIS ADDENDUM THAT CONTINUES SO LONG AS MANAGER IS AN AFFILIATE OF SPRINT PCS, (IIii) SUCH INDEPENDENT LICENSING ARRANGEMENT DOES NOT NECESSARILY EXTEND TO FUTURE IMPROVEMENTS UPON OR EXPANSIONS OF SUCH SOFTWARE, OR INCLUDE ANY NEW SOFTWARE DEVELOPED BY OR FOR SPRINT PCS IN CONNECTION WITH PROGRAM REQUIREMENTS AND (IIIiii) SPRINT PCS ADMINISTERS THE TESTING AND IMPLEMENTATION OF THE SOFTWARE INTO THE SERVICE AREA NETWORK. (Bb) SPRINT PCS WILL USE COMMERCIALLY REASONABLE EFFORTS TO OBTAIN A LICENSE PROVIDING FOR THE RIGHT OF MANAGER TO USE THE SOFTWARE (CURRENTLY EXISTING OR DEVELOPED IN THE FUTURE) OR TO USE THE IMPROVEMENTS UPON OR EXPANSIONS OF THE EXISTING OR NEWLY DEVELOPED SOFTWARE FROM VENDORS IN CONNECTION WITH A TELECOMMUNICATIONS EQUIPMENT PURCHASE AGREEMENT THAT IS NOT COVERED BY MANAGER'S EXISTING LICENSES (COLLECTIVELY FOR PURPOSES OF THIS SECTION 1.3.4, THE "VENDOR SOFTWARE"). (Cc) MANAGER WILL ARRANGE INDEPENDENTLY WITH THE VENDOR TO OBTAIN A LICENSE IF SPRINT PCS CANNOT REASONABLY OBTAIN A LICENSE FOR MANAGER. ANY LICENSE OBTAINED BY MANAGER FROM A VENDOR MUST REQUIRE THE VENDOR SOFTWARE TO BE TESTED IN SPRINT PCS TEST BEDS BY SPRINT PCS AND REQUIRE SPRINT PCS TO PUSH THE SOFTWARE TO THE SERVICE AREA NETWORK, NOT THE VENDOR OR MANAGER, UNLESS OTHERWISE CONSENTED TO IN ADVANCE BY SPRINT PCS IN WRITING. (Dd) SPRINT PCS WILL PAY ALL SOFTWARE FEES TO THE VENDOR IF SPRINT PCS OBTAINS A LICENSE FROM THE VENDOR THAT PROVIDES MANAGER THE RIGHT TO USE THE VENDOR SOFTWARE AND SPRINT PCS REASONABLY EXPECTS MANAGER TO PAY ITS ALLOCABLE SOFTWARE FEE. (Ee) SPRINT PCS WILL NOTIFY MANAGER IN WRITING AT LEAST 60 DAYS BEFORE (Ii) THE DATE OF AN AUTOMATIC RENEWAL OF OR UNILATERAL ACT OF SPRINT PCS TO RENEW OR EXTEND AN AGREEMENT THAT PROVIDES SPRINT PCS THE RIGHT TO USE THE VENDOR SOFTWARE OR (IIii) SPRINT PCS INTENDS TO START NEGOTIATIONS WITH A VENDOR REGARDING PRICING OR OTHER MATERIAL TERMS RELATING TO MANAGER'S RIGHT TO USE THE VENDOR SOFTWARE (WHETHER FOR NEW SOFTWARE OR RENEWAL OF AN EXISTING LICENSE). MANAGER MUST NOTIFY SPRINT PCS IN WRITING WITHIN 30 DAYS AFTER RECEIVING THE NOTICE DESCRIBED IN THE PRECEDING SENTENCE IF MANAGER WANTS SPRINT PCS TO ATTEMPT TO OBTAIN A RIGHT FOR MANAGER TO USE THE VENDOR SOFTWARE. SPRINT PCS WILL RENEW OR NEGOTIATE THE AGREEMENT AS IF MANAGER WILL NOT BE A USER OF THE VENDOR SOFTWARE IF MANAGER DOES NOT PROVIDE NOTICE TO SPRINT PCS WITHIN THE 30-DAY PERIOD. HOWEVER, SPRINT PCS MAY OBTAIN PRICING FROM THE VENDOR FOR THE VENDOR SOFTWARE THAT INCLUDES MANAGER AS A USER AS LONG AS OBTAINING THE PRICING DOES NOT OBLIGATE MANAGER TO BE A USER. SPRINT PCS WILL ADVISE MANAGER FROM TIME TO TIME OF THE STATUS OF THE SOFTWARE NEGOTIATIONS IF MANAGER REQUESTED SPRINT PCS TO OBTAIN OR CONTINUE THE RIGHT FOR MANAGER TO USE THE VENDOR SOFTWARE UNDER SPRINT PCS' AGREEMENT WITH THE VENDOR. SPRINT PCS WILL GIVE MANAGER NOTICE OF THE FINAL PRICING FOR THE RIGHT TO USE THE VENDOR SOFTWARE A REASONABLE TIME BEFORE THE EXPECTED EXECUTION OR RENEWAL OF THE AGREEMENT. MANAGER MAY GIVE SPRINT PCS NOTICE BY THE TIME SET FORTH IN SPRINT PCS' NOTICE TO MANAGER (WHICH TIME WILL NOT BE LESS THAN 10 BUSINESS DAYS) THAT MANAGER DOES NOT INTEND TO USE THE VENDOR SOFTWARE THROUGH THE AGREEMENT BETWEEN SPRINT PCS AND THE VENDOR. IF MANAGER DOES NOT GIVE THIS FINAL NOTICE TO SPRINT PCS, MANAGER WILL BE DEEMED TO AGREE TO BE A USER OF THE VENDOR SOFTWARE THROUGH THE AGREEMENT BETWEEN SPRINT PCS AND THE VENDOR AND WILL PAY THE ALLOCABLE SOFTWARE FEE. (Ff) MANAGER WILL PAY SPRINT PCS A FEE FOR SPRINT PCS' ADMINISTRATION AND IMPLEMENTATION OF THE VENDOR SOFTWARE AND MANAGER'S RIGHT TO USE THE VENDOR SOFTWARE ("ALLOCABLE SOFTWARE FEE") WITHIN 30 DAYS AFTER RECEIPT OF AN INVOICE IF MANAGER HAS NOT TAKEN THE ACTION DESCRIBED IN THE PREVIOUS PARAGRAPHS AND SPRINT PCS OBTAINS A LICENSE PROVIDING FOR THE RIGHT OF MANAGER TO USE THE VENDOR SOFTWARE. SPRINT PCS WILL ▇▇▇▇ THE MANAGER ONLY AFTER SPRINT PCS PAYS THE UNDERLYING SOFTWARE FEE TO THE VENDOR. SPRINT PCS WILL CALCULATE THE ALLOCABLE SOFTWARE FEE AS FOLLOWS: FOR EACH SOFTWARE VENDOR, MULTIPLY (Ii) THE SOFTWARE FEES ATTRIBUTABLE TO THE VENDOR SOFTWARE AND FOR WHICH SPRINT PCS HAS OBTAINED FOR ITSELF, MANAGER AND OTHER MANAGERS A LICENSE OR OTHER RIGHT TO USE BY (IIii) THE QUOTIENT OF (A) THE NUMBER OF CUSTOMERS AND SPRINT PCS RESELLER CUSTOMERS WITH AN NPA-NXX ASSIGNED TO THE SERVICE AREA THAT ARE ASSIGNED TO A SYSTEM USING THE VENDOR SOFTWARE, AS REPORTED IN THE MOST RECENT MONTHLY REPORT ISSUED BY SPRINT PCS BEFORE THE DATE THAT SPRINT PCS PREPARES AN ALLOCABLE SOFTWARE FEE INVOICE, DIVIDED BY (B) THE NUMBER OF CUSTOMERS AND SPRINT PCS RESELLER CUSTOMERS THAT ARE ASSIGNED TO A SYSTEM USING THE VENDOR SOFTWARE, AS REPORTED IN THE MOST RECENT MONTHLY REPORT ISSUED BY SPRINT PCS BEFORE THE DATE THAT SPRINT PCS PREPARES AN ALLOCABLE SOFTWARE FEE INVOICE. (Gg) SPRINT PCS WILL INCLUDE WITH THE INVOICE FOR THE ALLOCABLE SOFTWARE FEE A LIST OF THE COMPONENT CHARGES, IF DETERMINABLE. THE SOFTWARE FEES PAID BY SPRINT PCS TO THE VENDOR WILL REFLECT COMMERCIAL RATES NEGOTIATED AT ARMS' LENGTH. FOR PURPOSES OF CLARIFICATION, THE PARTIES ACKNOWLEDGE THE VENDOR MAY INSIST ON A COMPREHENSIVE FEE WITHOUT LISTING EACH COMPONENT, BUT RATHER ASSERT THE FEE COVERS ALL SOFTWARE NECESSARY TO OPERATE THE EQUIPMENT. (Hh) MANAGER WILL NOT BE CHARGED THE ALLOCABLE SOFTWARE FEE FOR THAT VENDOR SOFTWARE IF MANAGER (Ii) NOTIFIES SPRINT PCS IN WRITING WITHIN THE PERIOD ALLOWED THAT MANAGER DECLINES TO HAVE SPRINT PCS OBTAIN A RIGHT FOR MANAGER TO USE THE VENDOR SOFTWARE OR GIVES FINAL NOTICE TO SPRINT PCS THAT IT DOES NOT INTEND TO USE THE VENDOR SOFTWARE, (IIii) OBTAINS ITS OWN LICENSE PROVIDING FOR MANAGER'S RIGHT TO USE THE VENDOR SOFTWARE, AND (IIIiii) COMPLIES WITH THE REQUIREMENTS OF SECTION 1.3.4(I1.3.4(i). (Ii) MANAGER WILL OBTAIN ITS OWN LICENSE PROVIDING FOR MANAGER'S RIGHT TO USE THE VENDOR SOFTWARE FROM THE VENDOR IF MANAGER ELECTS NOT TO HAVE SPRINT PCS ATTEMPT TO OBTAIN A RIGHT FOR MANAGER TO USE THE VENDOR SOFTWARE UNDER SECTION 1.3.4(E1.3.4(e). MANAGER WILL NOTIFY SPRINT PCS IN WRITING AND DELIVER TO SPRINT PCS WITHIN 10 DAYS AFTER MANAGER'S EXECUTION OF MANAGER'S SEPARATE LICENSE, A SIGNED DOCUMENT FROM THE VENDOR CONFIRMING THAT (A) THE VENDOR HAS PROVIDED MANAGER A SEPARATE LICENSE FOR THE VENDOR SOFTWARE AND THE TERM OF THAT LICENSE, WHICH TERM WITH APPROPRIATE RENEWAL RIGHTS, MUST BE AT LEAST AS LONG AS THE LICENSE SPRINT PCS HAS FROM THE VENDOR, (B) THE FEES PAID BY MANAGER TO THE VENDOR REFLECT COMMERCIAL RATES NEGOTIATED AT ARMS' LENGTH, (C) THE VENDOR SOFTWARE COVERED BY MANAGER'S LICENSE PROVIDES THE SAME USAGE AND FUNCTIONALITY FOR ALL OF THE SAME NETWORK ELEMENTS AS SPRINT PCS' LICENSE, AND (D) THE VENDOR SOFTWARE MAY BE TESTED IN SPRINT PCS TEST BEDS BY SPRINT PCS AND WILL BE PUSHED TO THE SERVICE AREA NETWORK BY SPRINT PCS, NOT THE VENDOR OR MANAGER, UNLESS OTHERWISE CONSENTED TO IN ADVANCE IN WRITING BY SPRINT PCS.