Exhibit 10.3
CONTRACT No. IFN9301C
SUPPLY AGREEMENT FOR TRANSMISSION EQUIPMENT
BETWEEN
INTERSTATE FIBERNET, INC.
AND
NORTHERN TELECOM INC.
This is an agreement ("Agreement") by and between Interstate FiberNet, Inc. a
Delaware corporation with offices at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇, ("Buyer") and Northern Telecom Inc., a Delaware corporation with offices
located at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Seller").
WITNESSETH that the parties hereto hereby agree as follows:
1. SCOPE
1.1 This Agreement sets forth the terms and conditions applicable to the
purchase by Buyer for itself and on behalf of its affiliates located
in Exhibit E ("Affiliates") and the sale by Seller of Seller's
equipment listed in Exhibit A ("Equipment"), any associated
engineering, installation or other services Seller has agreed to
perform ("Services"), and the licensing of any software ("Software"),
as subsequently defined herein and furnished in connection with the
Equipment.
1.2 Exhibit A may, by written agreement of Buyer and Seller, be amended
from time to time to add or delete transmission products offered for
sale by Seller, and/or to incorporate therein enhancements or new
features introduced in Equipment by Seller.
2. TERMS
This Agreement shall be effective on the date last signed, shall remain in
effect through December 31, 1995 ("Term"). This Agreement may be extended
for one or more successive periods by mutual written agreement of Buyer and
Seller.
3. EXHIBITS
The following Exhibits, attached hereto, are an integral part of this
Agreement and are incorporated herein by reference:
Exhibit A - Description of Equipment and Prices
Exhibit B - Delivery Intervals
Exhibit C - Buyer's Obligations
Exhibit D - Technical Support
Exhibit E - Affiliates
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4. ORDERING
4.1 During the Term of this Agreement and subject to the terms and
conditions contained herein, Buyer commits to purchase and take
delivery of Equipment having a minimum total price of Five Million
Dollars ($5,000,000.00) ("Total Commitment"). Buyer shall issue a
purchase order ("Purchase Order"), for the Equipment in accordance
with the following:
a) Upon signing this Agreement, Buyer shall issue a binding Purchase
Order in a minimum amount equal to the Total Commitment.
b) Buyer shall, from time to time, issue release orders ("Release
Orders"), to Seller. Each Release Order shall state the required
quantities and types of Equipment, any Services required and the
requested dates of Equipment delivery and the commencement dates
of any Services is to perform.
4.2 In order to permit Seller to meet delivery requirements, Buyer shall
issue a non-binding forecast showing the specific types and quantities
of Equipment to be released throughout the Term of this Agreement.
Buyer shall update such forecast each six (6) months.
4.3 The Purchase Order and all Release Orders issued by Buyer hereunder
and accepted in writing by Seller shall be deemed to incorporate and
be governed solely by the terms and conditions set forth in this
Agreement. Any printed terms and conditions contained on the front or
back side of any Purchase Order, Release Order or Seller's
acknowledgment shall be deemed deleted and of no force or effect. Any
typed and/or written terms and conditions contained in the Purchase
Order, Release Order or Seller's acknowledgment shall be for
administrative or information purposes only i.e., to identify the
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scope of the Purchase Order or Release Order, the types and
quantities of Equipment, any Services to be supplied, any other
equipment covered by the Purchase Order or Release Order, line item
prices and total price, delivery and any other such information, all
in accordance with the provisions of this Agreement.
4.4 All Release Orders shall specify whether Seller is to (a) furnish the
Equipment without engineering or installation Services ("FO Orders"),
(b) furnish the Equipment with engineering services only ("E&F
Orders"), or (c) furnish the Equipment with engineering and
installation Services ("EF&I Orders"). With respect to E&F Orders and
EF&I Orders, the specific engineering and/or installation Services to
be
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performed by Seller shall be as more fully described in the applicable
Release order.
4.5 All Release Orders issued hereunder by Buyer are subject to written
acceptance by Seller within fifteen (15) days from Seller's receipt of
a Release Order. If a Release Order is not so accepted within such
fifteen (15) day period, such Release Order shall be deemed to be not
accepted and neither Buyer or Seller shall have any further obligation
with respect thereto except for Buyer's obligation to fulfill the
requirements of the Total Commitment.
4.6 Any requested change to a Release Order initiated by Buyer, after
Seller's acceptance of the Release Order, and any resulting
adjustments to prices, schedule and/or other requirements of the
Release Order shall be mutually agreed upon and subsequently detailed
in a written change to the Release Order ("Change Order"), referencing
the affected Release Order and executed by authorized representatives
of Buyer and Seller. Any adjustment to the prices for Equipment and
charges for any Services, as applicable, in a Change Order shall be
based on those Equipment prices set forth in Exhibit A and Seller's
then current charges for Services. In the event that the Change Order
affects work already performed, the adjustment of the Release Order
price shall include reasonable charges incurred by Seller related to
such work. Seller shall at Buyer's request, substantiate such costs.
No such changes shall be performed until a Change Order has been
executed by Seller and Buyer as described above.
5. PRICES
5.1 Equipment prices applicable to Orders and Release Orders for Equipment
issued and accepted hereunder shall be Seller's prices set forth in
Exhibit A. Such prices are based on cash sales and contain no
provision for financing by Northern Telecom Finance Corporation
("NTFC") or Communications Credit Corporation ("CCC"). Buyer shall not
enter into any finance agreement with NTFC or CCC for Equipment
purchased hereunder without prior written approval of Seller.
5.2 The prices for engineering, installation and/or system line-up and
testing ("SLAT") Services performed by Seller with respect to an E&F
or EF&I Release Order issued and accepted hereunder shall be as quoted
by Seller and agreed to by Buyer prior to issuance of the applicable
Release Order. Additional expenses incurred by Seller in the
performance of its Services which result from errors or omissions in
information provided by Buyer shall be billable to Buyer. Buyer shall
be advised by Seller as soon as practicable when such additional
expenses are
CONTRACT NO. IFN9301C
incurred. Seller shall, at Buyer's request, substantiate all such
increases.
5.4 The prices of imported Equipment, if any, set forth in Exhibit A,
include any applicable U.S. import duties and customs charges.
5.5 The prices shown in Exhibit A are FOB Seller's plant. Seller will
prepay freight charges for the Equipment shipped from Seller's factory
to Buyer and invoice Buyer at cost. These Charges will appear as
separate line items on the invoice.
5.6 Equipment prices and charges for any Services set forth in Exhibit A
do not include Federal manufacturer's and retailer's excise tax, state
or local sales and/or use taxes, nor any federal, state or local taxes
of a similar nature. All such taxes, if applicable to payable by
Seller in connection with its performance under this Agreement, shall
be billed to and paid by Buyer as in accordance with Section 6.
5.7 Until the total price specified in each Release Order is paid to
Seller by Buyer, Seller shall retain and Buyer hereby grants to Seller
a purchase money security interest in the Equipment covered that
Release Order. Buyer shall cooperate with Seller in perfecting such
interest. Prior to the time any Equipment is paid for in full to
Seller, Buyer shall not sell or lease such Equipment or allow any
liens or encumbrances to attach to any Equipment without prior written
permission of Seller.
6. TAXES
6.1 Buyer shall promptly reimburse Seller, upon demand, or shall pay
directly, if so requested by Seller, all taxes and charges imposed by
any federal, state, or local governmental or taxing authority,
relating to the purchase, ownership, possession, use, operation or
relocation of Equipment purchased, excluding, however, all taxes
computed upon the net income of Seller.
6.2 In the event Buyer disputes the taxes billed on any invoice then, upon
Buyer's written request, the parties shall consult with respect to the
basis and the rates upon which Seller shall pay any taxes for which
Buyer is obligated to reimburse Seller under this Agreement. If Buyer
determines that in its opinion any such taxes are not payable or
should be paid less than the full rate or amount of tax billed, Buyer
will promptly notify Seller in writing within thirty (30) days from
the date of the disputed invoice by certified mail. Buyer will pay to
Seller the total amount of taxes both disputed and undisputed which
federal, state or local taxing authorities, deem payable.
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6.3 In the event disputed taxes have been paid by Seller to a taxing
authority and Buyer elects to seek a refund, Seller will then assign
its rights of refund to Buyer so that Buyer may petition the taxing
jurisdiction for any refunds Buyer may establish as appropriate. If
rights of refund cannot be assigned to Buyer, Seller will file the
claim for a refund on Buyer's behalf. Buyer will be responsible for
providing any required documentation that will accompany the claim for
refund and such information should be submitted to Seller for
submission to the applicable taxing jurisdiction.
6.4 Buyer agrees to pay and hold Seller and its affiliates harmless from
and against any penalties, interest, audit assessments or any other
type of assessment imposed by any taxing jurisdiction, related to
taxes reimbursable under this Agreement.
6.5 In the event any taxing authority advises Seller that it intends to
audit Seller with respect to any disputed taxes for which Buyer is
obligated to reimburse Seller under this Agreement, Seller shall
provide Buyer with written notice of such audit and keep Buyer
informed as to the progress of the audit. Seller will allow Buyer,
sixty (60) days from the date of Seller's written notice to Buyer to
present to the taxing authority any information that may defend
Buyer's position.
7. DELIVERY
7.1 Risk of loss or damage to Equipment contained in each shipment shall
pass to Buyer upon delivery thereof to a carrier at Seller's
manufacturing plant. With respect to Equipment ordered on an EF&I
basis, Seller shall at its expense, remedy any damage to such
Equipment when such damage is caused by the negligence or willful
misconduct of Seller's personnel during installation and SLAT. Title
to Equipment supplied hereunder, excluding Software, shall vest in
Buyer upon full payment thereof by Buyer.
7.2 The normal delivery intervals applicable to Equipment furnished
hereunder shall be those intervals shown in Exhibit B however,
Seller's only obligation shall be to meet delivery dates set forth in
an accepted Release Order. If Seller, prior to acceptance of a Release
Order, advises Buyer that it cannot meet a delivery date requested in
the Release Order, both parties will negotiate a revised date prior to
Seller's acceptance of the Release Order. The installation and SLAT
intervals applicable to each EF&I Release Order shall be quoted by
Seller and agreed to by Buyer prior to issuance of such Release Order.
7.3 In the event of a delay in delivery of Equipment, which is the subject
of an accepted Release Order, beyond the date agreed upon in such
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Release Order and such delay is not excused under the provisions of
Section 13 hereof, then upon Buyer's request, shipment of the delayed
Equipment when ready to ship shall be made specifying priority
transportation, and, in such circumstances, the amount by which the
cost of such priority transportation exceeds the cost of
transportation that would have been payable by Buyer pursuant to
Section 5.5 shall be borne by Seller.
8. PAYMENT
8.1 Seller shall invoice Buyer upon shipment of the Equipment and Buyer
shall pay to Seller the price of each shipment of Equipment (including
any freight and/or insurance prepaid by Seller) within thirty (30)
days from the date of invoice. Charges for Services rendered hereunder
shall be invoiced at the completion of such Services, and paid by
Buyer within thirty (30) days from date of Seller's invoice Therefor.
8.2 Overdue payments may, at Seller's sole discretion, be subject to
interest charges, calculated daily from the due date, at one and one
half percent (1 1/2%) per month or such lesser rate as may be the
maximum permissible rate under applicable law.
9. TECHNICAL SPECIFICATIONS
9.1 The technical specifications applicable to Equipment supplied
hereunder shall be Seller's standard published performance
specifications for such Equipment which are hereby incorporated
herein by reference, as such specifications may be amended from time
to time by Seller ("Specifications").
9.2 The current S/DMS TransportNode Equipment is compliant with SONET
Phase II standards. During the Term of the Agreement, Seller is
committed to evolve its S/DMS TransportNode Equipment to comply with
emerging SONET standards.
10. SOFTWARE LICENSE
10.1 Software licensed under this Agreement is defined as computer
programs contained on a magnetic tape, disc, semiconductor device or
other memory device or system memory consisting of (a) hard wired
logic instructions which manipulate data in the central processor and
control input-output operations and error diagnostic and recovery
routine, (b) instruction sequences in machine-readable code that
control call processing, or other operating functions, peripheral
equipment or administration and maintenance functions and (c)
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associated documentation used to describe, maintain and use the
programs.
10.2 Upon Buyer's payment of the applicable Right to Use Fees or Software
License Fees, if any, Buyer, or its Affiliate as appropriate, is
hereby granted a perpetual, non-exclusive, paid-up license to use the
version of the Software furnished. Buyer, or its Affiliate as
appropriate, is granted no title or ownership rights to the Software,
such rights shall remain in Seller or Seller's suppliers as
appropriate. Seller may, from time to time, issue updates to the
Software and, upon Buyer's payment of applicable Right to Use Fees or
Software License Fees, if any, shall license these updates to Buyer,
or its Affiliate as appropriate. Seller shall classify such updates as
either: 1) Incremental Software Upgrades ("ISU's"), designed to
correct any nonconformance to the applicable Software specifications
or 2) enhancements which will provide additional features. Updates to
Software classified, as ISU's by Seller will be provided at no cost to
Buyer, or its Affiliate as appropriate. Updates classified as
enhancements, which will be used by Buyer, or its Affiliate as
appropriate, in its operations shall be made available to Buyer on a
billable basis. In the event Seller determines that the update
includes both corrections and enhancements which will be used by
Buyer, or its Affiliate as appropriate, in its operations, such update
shall be made available to Buyer, or its Affiliate as appropriate. If
Buyer, or its Affiliate as appropriate, elects to receive the update,
Seller shall invoice Buyer only for the amount determined by Seller to
be attributed to the enhancements contained in such update.
10.3 Buyer agrees that the Software, including without limitation, any
additional or modified Software which operates the Equipment, shall,
as between the parties hereto be treated as the exclusive property of
Seller or Seller's suppliers, as appropriate, and as proprietary and a
TRADE SECRET of Seller or Seller's suppliers, as appropriate, and
Buyer shall:
a) hold the Software (including any methods or concepts utilized
therein) in confidence for the benefit of Seller or Seller's
suppliers as appropriate;
b) utilize the Software (including any methods or concepts utilized
thereof) solely in conjunction with the Equipment;
c) not duplicate, copy, or modify the Software in whole or in part
except solely for backup or archival purposes;
d) not decompile or attempt to reverse engineer the Software;
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e) forthwith return to Seller any Software component and/or
documentation which has been replaced, modified, or updated.
10.4 Buyer, or its Affiliate as appropriate, and any successor to Buyer's,
or its Affiliate's, title in the Equipment shall have the right
without further consent of Seller (a) to assign this license to any
other party who acquires legal title to the Equipment, and (b) to
sublicense the rights herein granted to any other party who
subsequently acquires the right to use the Equipment, provided that
any such other party (either assignee or sublicensee) prior to the
transfer of the Software, agrees in a writing addressed to Seller to
abide by the terms and conditions of this license.
105. The obligations of Buyer under this Software license shall survive the
termination of this Agreement, regardless of the cause termination.
11. BUYER'S OBLIGATIONS
In order to enable Seller to perform its obligations pursuant to E&F
Release Orders to EF&I Release Orders, Buyer agrees to fulfill Buyer's
obligations set forth in Exhibit C and any additional obligations that may
be mutually agreed between Buyer and Seller in relation to a Specific
Release Order.
12. ACCEPTANCE
12.1 With respect to Equipment ordered on a FO or E&F basis, Buyer's
acceptance of the Equipment shall be deemed to have taken place at
Seller's factory upon completion by Seller of its standard factory
test as evidenced by the test results showing that Equipment meets the
applicable performance parameters set forth in the applicable
Specifications.
12.2 With respect to Equipment ordered on an EF&I basis, Buyer's acceptance
of the Equipment shall take place, or be deemed to have taken place,
upon Seller's completion of the installation and SLAT Services, which
Seller agreed to perform in a Release Order. Such Services shall be
performed in accordance with Seller's standard procedures and
practices, as evidenced by the test results showing that the Equipment
meets the applicable performance parameters set forth in the
Specifications. Such acceptance shall not be withheld or postponed due
to:
a) performance deficiencies of the Equipment or any other equipment
with which such Equipment is used or operated resulting from causes
not attributable to Seller, such as but not limited to (i)
incompleteness or inaccuracy of information
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provided by Buyer, (ii) inadequacy or deficiencies of equipment,
facilities or services not provided by Seller which are tested in
conjunction with Equipment, or (iii) other conditions, external
to the Equipment provided by Seller, which are beyond the
specified limits and are used by Seller in performance
calculations which may be submitted in Seller's quotation; and
spurious outputs from adjacent equipment. Seller shall, at
Buyer's expense, assist Buyer in the elimination or minimization
of such deficiencies; or
(b) minor deficiencies of shortages, attributable to Seller, of a
nature that would not prevent commercial operation of the
Equipment; Seller shall, however, at its expense, take prompt and
effective action to correct any such deficiencies or shortages.
The expenses incurred by Seller in the investigation of the
causes of any performance deficiencies shall be borne by Buyer
if the deficiencies do not result from causes attributable to
Seller.
13. WARRANTY
13.1 In those instances when Seller does not perform installation Services,
Seller warrants to Buyer, or its Affiliate as appropriate, that
Equipment supplied hereunder, excluding Software, will, under normal
use and service, be free from defective material and faulty
workmanship and will perform in accordance with the applicable
Specifications for a period of twelve (12) months from the date of
shipment or, if the date of shipment is not marked on the Equipment,
fifteen (15) months from the date of manufacture. In the event Seller
performs installation Services, the Equipment warranty shall be twelve
(12) months from the date of acceptance as set forth in Section 12.
This warranty does not apply to items normally consumed in operation,
such as, but not limited to, lamps and fuses. Seller further warrants
that any engineering and installation Services performed by Seller
will be free from defects in workmanship for the duration of the
Equipment warranty period. Seller's sole obligation and Buyer's
exclusive remedy under this warranty are limited to the replacement or
repair, at Seller's option and expense, of the defective Equipment, or
correction of the defective engineering and installation Services.
Such obligation and remedy are conditional upon the Equipment not
having been altered or repaired by any party other than Seller without
Seller's prior written consent, and the defect not being the result of
Buyer's mishandling, abuse, misuse or improper storage, installation,
operation, or maintenance, or other causes not imputable to Seller and
upon the Equipment not having been damaged by fire, explosion, power
failure, lightning, or any other act of nature or public enemy. The
repair or replacement of the defective Equipment and the correction of
defective
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engineering and installation Services shall be warranted for a period
of ninety (90) days or the remainder of the original Equipment
warranty period whichever is longer.
13.2 Seller warrants to Buyer, or its Affiliate as appropriate, that any
Software licensed by Seller under this Agreement shall function during
the warranty period of the Equipment with which such Software is
furnished without material service-affecting deficiencies which result
from a defect in the Software. Buyer's sole remedy and Seller's sole
obligation under this warranty are for Seller to correct such defect
in the Software. Such obligation and remedy are conditioned upon: (a)
the defect being properly attributable to Seller or Seller's
suppliers; (b) such Software not having been installed outside the
United States; and (c) written notice of the defect having been given
to Seller within the applicable warranty period. The correction of any
such failure shall not extend the applicable warranty period.
13.2 Upon expiration of the applicable warranty period for Equipment
furnished hereunder, repair and replacement service for such Equipment
shall be available to Buyer from Seller in accordance with Seller's
procedures and charges then in effect conditioned upon the Equipment
not having been altered or repaired by any party other than Seller
without Seller's prior written consent, and upon the Equipment not
having been damaged by fire, explosion, power failure, or any act of
nature or public enemy. Such repair and replacement service shall be
available for a minimum period of ten (10) years from the commencement
date of this Agreement. Seller shall provide Buyer with a twelve (12)
month prior written notice of any discontinuance so as to enable Buyer
to place an order for its requirements or to enter into any other
mutually satisfactory agreement with Seller prior to such
discontinuance. This provision shall survive the expiration of this
Agreement.
13.4 Repairs or replacements provided after the expiration of the warranty
period are warranted by Seller, as provided in Section 13.1 hereof,
for a period of ninety (90) days from the date of shipment of such
repair or replacement.
13.5 The warranty applicable to equipment manufactured by others and resold
by Seller shall be the manufacturer's warranty for such equipment
only. No warranty of such equipment is offered or made by Seller
except to the extent that when the equipment manufactured by others is
a incorporated as a component of Equipment manufactured by Seller,
i.e. transistors, capacitors and resistors the in such cases the
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Equipment warranty shall apply.
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13.6 Neither Seller nor Seller's suppliers, as appropriate, shall have any
responsibility for warranties offered by Buyer to any of its customers
with respect to the performance of any Equipment or Software over and
above those warranties set forth herein. Buyer shall indemnify Seller
and/or Seller's suppliers, as appropriate, with respect thereto.
13.7 All equipment to be repaired or replaced both within and out of
warranty shall be packed by Buyer in accordance with Seller's
instructions as set forth in Exhibit D and shipped, at Buyer's expense
and risk of loss, to a location designated by Seller prior to such
shipment. Repaired or replaced Equipment shall be returned to Buyer at
Seller's expense and risk of loss.
13.8 Seller warrants that Equipment delivered to Buyer is free and clear of
all liens and encumbrances.
13.9 THE FOREGOING WARRANTIES AND REMEDIES CONSTITUTE THE ONLY WARRANTIES
WITH RESPECT TO EQUIPMENT AND INSTALLATION THEREOF AND SOFTWARE AND
BUYER'S EXCLUSIVE REMEDIES IN THE EVENT SUCH WARRANTIES ARE BREACHED.
SUCH WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, WRITTEN OR ORAL,
STATUTORY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY
WARRANTY WITH RESPECT TO ANY OTHER SERVICES PROVIDED BY SELLER
HEREUNDER OR OTHERWISE, AND ANY WARRANTY OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE. SELLER SHALL NOT BE LIABLE FOR ANY
INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE FOR ANY
REASON.
14. FORCE MAJEURE
If the performance of any obligation under this Agreement, Order or an
Release Order is interfered with by reason of any circumstances beyond the
reasonable control of the party affected, including, without limitation,
fire, explosion, power failure, acts of God, war, revolution, civil
commotion, delays of the other party in the performance of any of its
obligations hereunder, delays of subcontractors, or suppliers,
unavailability of sources of energy, acts of the public enemy, or any law,
order, regulation, ordinance or requirement of any government or legal
body, and labor difficulties, including without limitation, strikes,
slowdowns, picketing or boycotts; then the party affected shall be excused
from such performance for a period equal to the delay resulting from any
such causes and such additional period as may be reasonably necessary to
allow the party to resume its obligations, (and the other party shall
likewise be excused from performance of its obligations to the extent such
party's obligations relate to the performance to interfered
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with). The party so affected shall make reasonable efforts to remove such
causes of nonperformance; provided, however, in the context of labor
difficulties, that a party shall not be obligated to accede to any demands
being made by employees or other personnel.
15. PATENT INFRINGEMENT
15.1 Seller shall defend Buyer with respect to any suit, claim, or
proceeding brought against Buyer alleging that Buyer's use of
Equipment or Software furnished hereunder constitutes an infringement
of any attorney's fees, settlement payments and damages awarded as a
result of such claims, provided, however, that Buyer shall promptly
advise Seller of any suit, claim, or proceeding and shall cooperate
with Seller in the defense or settlement of such suit, claim or
proceeding, but Seller shall have sole control thereof.
15.2 In the event that an injunction is obtained against Buyer's use of
such Equipment or Software arising from such patent suit, claim or
proceeding, in whole or in part, Seller shall use its best efforts to
either: (a) procure for Buyer the right to continue using the portion
of Equipment and/or Software enjoined from use; of (b) replace or
modify the same so that Buyer's use is not subject to any such
injunction. In the event that Seller cannot perform under (a) or (b),
Buyer shall have the right to return such Equipment and/or Software to
Seller upon written notice to Seller and in the event of such return,
neither party shall have any further liabilities or obligations under
this Agreement Order or applicable Release Order except that Seller
shall refund the depreciated value of such Equipment and/or Software
as carried on Buyer's books at the time of such return.
15.3 This indemnity shall not apply to claims arising in respect of the
use of Equipment of Software supplied by Seller in accordance with
any design or special instructions furnished by Buyer, or which is
used by Buyer in a manner or for a purpose not contemplated by this
Agreement and Buyer shall indemnify Seller in such excepted cases as
set forth in Section 15.1.
15.4 The foregoing provisions of this Section 15 set forth the sole and
exclusive rights and obligations of Buyer and Seller with respect to
any infringement or claim of infringement as to the Equipment or
Software.
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16. CONFIDENTIAL INFORMATION
All technical information, specifications, drawings, documentation and
"know-how" of every kind and description whatsoever disclosed by either
party to the other under this Agreement ("Information"), except insofar as
it may be in the public domain or be established to have been independently
developed and so documented by the other party or obtained by the other
party from any person not in breach of any confidentiality obligations to
the disclosing party, is the exclusive property of this disclosing party,
and the other party, except as specifically authorized in writing by the
disclosing party, or as permitted hereunder, shall treat and protect the
Information as confidential, shall not reproduce the Information except to
the extent reasonably required for the performance of this Agreement, shall
not divulge the Information in whole or in part to any third parties, and
shall use the Information only for purposes necessary for the performance
of this Agreement or as may be required for the use of Equipment. This
obligation shall survive the termination of this Agreement. Each party
shall disclose the Information only to those of its employees and agents
who shall have a "need-to-know" the Information for the purposes described
herein after first making such employees or agents aware of the
confidentiality obligations set forth above.
17. LIABILITY
Each party hereto shall indemnify and save the other harmless from any
liabilities, claims or demands (including the costs, expenses and
reasonable attorney's fees on account thereof) that may be made by anyone
for personal injuries, including theft, death, or damage to tangible
property, resulting from the negligence and/or willful misconduct of that
party, its employees or agents in the performance of this Agreement. Each
party shall defend the other at the other's request against any such
liability, claim or demand. Each party shall notify the other promptly of
written claims or demands against such party of which the other party is
responsible hereunder.
18. TECHNICAL SUPPORT
Seller will support Equipment supplied hereunder as describe in Exhibit D
attached hereto.
19. DEFAULT
19.1 In the event of any material breach of this Agreement, Order or any
Release Order by either party which shall continue for thirty (30) or
more days after written notice of such breach including a reasonably
detailed statement of the nature of such breach shall have been given
to the breaching party by the aggrieved party, the aggrieved party
shall
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be entitled, subject to any limitations contained in this
Agreement, to avail itself of any and all remedies available at law
or equity. Notwithstanding the foregoing, in the event Buyer
remains in breach of Section 8.1 for a period of five (5) or more
business days following receipt of Seller's written notice, Seller
may suspend performance of all of its obligations under this
Agreement, Order or applicable Release Order for so long as the
breach continues uncorrected.
19.2 Seller may suspend its performance by written notice to Buyer and
forthwith remove and take possession of any portion of Equipment
and Software which has been delivered but not yet paid for if
Buyer, prior to payment to Seller of the total purchase price and
all additional monies due, shall become insolvent or bankrupt, make
a general assignment for the benefit of, or enter into any
arrangement with, creditors, file a voluntary petition under any
bankruptcy, insolvency, or similar law, or have proceeding under
any such laws or proceedings seeking appointment of a receiver,
trustee or liquidator instituted against it which are not
terminated within thirty (30) days of such commencement.
19.3 Any action for breach of this Agreement or to enforce any right
hereunder shall be commenced within two (2) years after the cause
of action accrues or it shall be deemed waived and barred.
19.4 IN NO EVENT SHALL SELLER BE LIABLE FOR ANY INCIDENTAL, SPECIAL OR
CONSEQUENTIAL DAMAGES OF ANY NATURE WHATSOEVER FOR ANY BREACH OF
THIS AGREEMENT OR OTHERWISE. THIS LIMITATION SHALL SURVIVE ANY
TERMINATION OF THIS AGREEMENT.
20. PUBLICITY
Prior to the publication or use by a party hereto of any advertising, sales
promotions, press releases or other publicity matters relating to the
Equipment or this Agreement in which the names or logo of the other party
is mentioned or can be reasonably inferred, the party shall obtain the
consent of the other party. Such consent shall not be unreasonably
withheld.
21. SEVERABILITY
If any of the provisions of this Agreement shall be adjudged invalid or
unenforceable, such invalidity or unenforceability shall not invalidate or
render this Agreement unenforceable, but rather this Agreement shall be
construed as if not containing the particular invalid or unenforceable
provision or provisions, and the rights and obligations of the parties
shall be construed and enforced accordingly, provided that, in the event
either Buyer
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CONTRACT NO. IFN9301C
or Seller would not have entered into this Agreement without such
provision, that party shall have the right to terminate this Agreement.
22. NOTICES
Notices and other communications shall be transmitted in writing by
certified U.S. Mail, postage prepaid, return receipt requested, or by
cable, telegram, or guaranteed overnight delivery addressed to the parties
as follows:
To Buyer: Interstate FiberNet, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Manager
--
To Seller: Northern Telecom Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Vice President, Carrier Networks
Any notice or communication sent under this Agreement shall be deemed given
upon receipt, as evidenced by the U.S. Postal Service return receipt form,
but in no event later than ten (10) days after it is deposited in the U.S.
Mail or, on the following business day if sent by guaranteed overnight
delivery.
23. GOVERNING LAW
The construction, interpretation and performance of the Agreement shall be
governed by the laws of the State of Georgia, except for its rules with
respect to the conflict of laws.
24. ASSIGNMENT
Neither party may assign or transfer this Agreement or any rights hereunder
without the prior written consent of the other party, except that Seller
may assign or subcontract any of its obligations hereunder to any of its
affiliate companies.
25. WAIVER
Except as specifically provided for in a waiver signed by duly authorized
representatives of Buyer and Seller, failure by either party at any time to
require performance by the other party or to claim a breach of any
provision of this Agreement shall not be construed as affecting any
subsequent breach or the right to require performance with respect thereto
or to claim a breach with respect thereto.
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CONTRACT NO. IFN9301C
26. SECTION HEADINGS
Section headings are inserted herein for convenience only and shall not
affect the meaning or interpretation of this Agreement or any provision
hereof.
27. ENTIRE AGREEMENT
This Agreement, including Exhibits A, B, C, D, and E attached hereto,
comprises all the terms, conditions and agreements of the parties hereto
with respect to the subject matter herein, and save as expressly provided
herein, may not be altered or amended except in writing signed by
authorized representatives of each party hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day
and year last written below.
INTERSTATE FIBERNET, INC. NORTHERN TELECOM INC
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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Signature Signature
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------ ---------------------------------------
Name (Please Print or Type) Name (Please Print or Type)
General Manager VP Carrier Networks
------------------------------ ---------------------------------------
Title Title
3-26-1993 3/26/93
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