EXHIBIT 10.2
OBJECTIVE SYSTEMS INTEGRATORS, INC.
ENTERPRISE PROFESSIONAL SERVICES AGREEMENT
CONTRACT NO.: EPSA - 127
THIS ENTERPRISE PROFESSIONAL SERVICES AGREEMENT ("Agreement") is entered into as
of December 1, 1999 ("Effective Date"), between OBJECTIVE SYSTEMS INTEGRATORS,
INC. ("OSI"), and ADELPHIA COMMUNICATIONS CORPORATION.
1. DEFINITIONS.
(a) Adelphia. Adelphia Communications Corporation and those of its
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Related Companies who affirmatively avail themselves of the
benefits of this Agreement by executing and delivering an
acknowledgment in the form of Exhibit 1. Adelphia Communications
Corporation will be jointly and severally liable for the
obligations of any Related Company under this Agreement.
(b) Related Entity. A corporation or other legal entity that directly
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or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with, Adelphia. For
purposes of the foregoing, the terms "control," "controlled by"
and "under common control with" will mean the possession,
directly or indirectly, of the power to direct or cause the
direction of the management and policies of the entity, whether
through ownership of voting securities, by contract or credit
arrangement, as trustee or executor, or otherwise.
(c) Unless otherwise expressly noted in this Agreement, the terms in
this Agreement will have the same meanings as set forth in the
Enterprise License Agreement, Contract No. ELA - 321 (the
"Enterprise License"), entered into between the parties
contemporaneously with this Agreement.
2. SERVICES
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(a) Work Orders. OSI will provide to Adelphia the professional
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services ("Services") described in one or more consecutively
numbered work orders ("Work Orders"), executed from time to time
by both parties and added as attachments to this Agreement.
Services will be provided (1) in accordance with this Agreement
and the applicable Work Order, and (2) either on a fixed price or
time and materials basis as set forth in each Work Order. OSI
will provide Services only under a valid Work Order. If the terms
of a Work Order directly conflict with the terms of this
Agreement, the terms of the Work Order will govern.
(b) Statements of Work. Each Work Order will have a Statement of Work
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attached ("SOW") which describes the Services, including all
deliverable items and documentation ("Deliverables"), acceptance
and performance criteria, schedule and pricing.
(c) Changes. Adelphia may terminate any Work Order under Section
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8(b). Services can be modified by notice from Adelphia. OSI will
notify Adelphia of any increase in costs, delay in schedule or
other consequence from that request, and the change will be
implemented if the parties agree to a modification to the terms
of the SOW.
(d) Delivery. Unless otherwise instructed, OSI will pack and ship
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Deliverables to Adelphia's address as noted below and according
to OSI's standard practice, F.O.B. factory, with freight and
insurance prepaid and invoiced to Adelphia. Adelphia will
reimburse OSI for extra costs incurred to comply with Adelphia's
special packing and shipping instructions. Adelphia has 10 days
from receipt to verify that all Deliverables in a shipment have
been received. OSI will replace missing Deliverables at no
charge.
(e) Non-Exclusivity. This Agreement and any Work Order are not
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exclusive. Either party may represent others in any capacity,
perform services for others or retain others to provide services
to it.
3. COORDINATION
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(a) Project Managers. For each Work Order, the parties will designate
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single contacts as their project managers for the Services.
Either party may change its project manager from time to time in
its discretion by notice to the other party. All communications
regarding a Work Order will be made through the project managers.
(b) Access. Adelphia will make available to OSI, on reasonable
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notice, such computer programs, data, interface information,
other documentation and access to Adelphia's computers, systems
and programs as are reasonably required by OSI to complete the
Services. Delays in providing such items or access will delay OSI
performance, and OSI will invoice Adelphia for the costs incurred
by OSI in connection with the delay.
(c) Consultations, Reports. OSI will keep Adelphia reasonably
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informed regarding its performance of the Services and will
consult with Adelphia concerning the Services on a regular basis.
4. ACCEPTANCE
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Deliverables will be accepted if they substantially conform to the
specifications set forth in the applicable SOW. Adelphia will be deemed
to have accepted Deliverable if (1) Adelphia fails to provide notice of
nonacceptance detailing one or more reproducible nonconformities within
30 days of the installation date, or any later date set forth in the
applicable SOW, in sufficient detail for OSI to reproduce and analyze
the nonconformity, or (2) Adelphia makes productive use of the
Deliverable at any time more than 30 days after the installation date.
OSI will use its commercially reasonable efforts to remedy agreed
nonconformities promptly after receiving that notice and on the new
installation date, a new 30 day period will begin.
5. PAYMENT
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(a) Fees and Expenses. Work Orders will set forth the fees for
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Services. Pricing for time and materials Work Orders under this
Agreement will be at rates equal to 75% of OSI's standard rates
as in effect on the date that the Work Order is received. OSI
will notify Adelphia of any proposed changes to OSI's standard
rates. In addition to these fees, Adelphia will reimburse OSI for
its reasonable and documented out-of-pocket expenses incurred in
performing the Services, including, without limitation, coach
class travel, business class lodging, automobile rental and meals
Any travel related expenses will be in accord with Adelphia's
then-current expense policies, as previously communicated to OSI
in writing. Work Orders may include a total amount of fees and
expenses, which OSI will not exceed without Adelphia's approval.
(b) Terms. If Services are on a time-and-materials basis, OSI will
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invoice Adelphia monthly for Services rendered, and if a not-to-
exceed amount is specified, OSI will use its best efforts to
complete the work described in the SOW for the not-to-exceed
amount, and will provide advance notice to Adelphia if the work
will not be completed for that amount. On receipt of that notice,
Adelphia may determine whether to continue the work or accept the
work in its then-current form and terminate further work under
the SOW. If Services are on a fixed-price basis, OSI will invoice
Adelphia according to the payment schedule in the Work Order.
Invoiced amounts will be paid within 45 days of the date of the
invoice. Payments will be made in immediately available U.S.
funds, without withholding for taxes or other amounts. Late
payments will accrue interest at the lesser of 1.5% per month or
the maximum rate permitted by applicable law. Adelphia will
reimburse OSI for all fees, costs and expenses (including,
without limitation, attorneys' fees and court costs) incurred to
collect amounts not timely paid.
(c) Taxes, Charges. Fees are exclusive of, and Adelphia will pay, all
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sales, value-added, withholding or excise taxes, and other
government fees and charges of any nature whatsoever other than
taxes on the income of OSI ("Taxes"). If Adelphia is required to
make any tax or other withholding on or in relation to payments
otherwise due under this Agreement, it will be in addition to the
amounts otherwise due. Taxes paid or payable by OSI will be
invoiced to and paid by Adelphia. Adelphia will not be required
to pay any sum to OSI under this subsection unless OSI (1) has
actually paid or intends in good faith to pay an equal sum to a
governmental entity, and (2) in good faith believes that
applicable law requires the payment.
6. RIGHTS IN WORK PRODUCT
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(a) Title. Except as expressly stated otherwise in a particular Work
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Order, Deliverables are not "works made for hire." OSI will own
all right, title and interest in copyrights, trade secrets,
patents, all other intellectual property and other rights
relating to (1) the Deliverables, and (2) any information
developed by OSI in the course of its performance.
Notwithstanding the foregoing, OSI will not have any rights in
proprietary
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information or data first belonging to Adelphia before execution
of the Work Order or provided by Adelphia to OSI under a Work
Order.
(b) License to Adelphia. Except as expressly stated otherwise in a
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particular Work Order, OSI grants Adelphia a perpetual, non-
exclusive, royalty-free, non-transferable license (without rights
to sublicense) to use, duplicate, alter, maintain, enhance or
otherwise modify Deliverables solely for Adelphia's own internal
business uses and at its facilities. Adelphia will not market,
resell, transfer, publish, disclose, display or otherwise make
Deliverables available to third parties. Even if a Deliverable is
intended to be combined with or operated as part of Adelphia's
software or other work, it will remain a separate work and not
part of a joint work.
(c) Effect of Sales, Divestitures, Mergers or Acquisitions. Expect as
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otherwise expressly stated otherwise in a Work Order, use of the
Deliverables under this Agreement will extend (and is limited) to
Adelphia, as from time to time constituted, and solely for its
own internal uses. If Adelphia either directly or indirectly
acquires, is acquired by, merges with or is otherwise combined in
any way with AT&T, Time Warner Communications, Charter
Communications, Comcast or any other owner-operator having an
account base of 24 million unique subscribers or more (a
"Competitive Merger"), then Adelphia's continued right to use the
Deliverables will be limited only to those uses within its
network as that uses and network existed on the business day
before the acquisition, merger or combination takes place. Joint
ventures or other similar activities, whether with one or more of
the above, or otherwise, in which Adelphia controls the joint
venture will not be deemed to be a Competitive Merger.
7. CONFIDENTIALITY
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(a) Confidential Information. In the course of their dealings, each
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party will acquire Information about the other, including
Information regarding business activities and operations,
technical information and trade secrets of the party and its
partners. Each party will hold in confidence any Information that
it receives from the other party, not use that Information for
purposes other than performance of this Agreement and not
disclose the Information except to those employees and advisors
who (1) have a need to know the same, and (2) are bound by law or
have agreed in writing to maintain the Information in confidence.
Information includes all nonpublic aspects of the OSI Software,
including programs, methods of processing, program design and
structure, the interaction and unique programming techniques
employed, and performance data and test results. The term
"Information" also includes the nonpublic plans of OSI and
Vendors for new products and services, product improvements and
marketing strategies. If a party discovers Information has been
improperly used, disseminated or published, it will immediately
notify the other party and take all reasonable actions to
minimize the impact of the disclosure.
(b) Excluded Information. Even if marked as confidential, the
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obligations in Section 7(a) will not apply to Information
generally available to or known to the public, known by the
receiving party without obligation of confidentiality before the
negotiations leading to this Agreement, independently developed
by the receiving party outside the scope of this Agreement,
lawfully disclosed to the receiving party without restriction by
a third party having the right to make the disclosure or required
to be publicly disclosed to a tribunal. In the case of required
disclosures to tribunals, the receiving party will promptly
notify the other party of the proceeding and fully assist the
disclosing party to obtain protective orders maintaining the
confidentiality of the Information.
8. TERM , TERMINATION
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(a) Term. This Agreement will commence on the Effective Date and
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continue until terminated under Section 8(c).
(b) Termination of Work Order. Services to be provided under a SOW
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may be canceled on 45 days' notice by Adelphia, but Adelphia will
pay for all Services provided by OSI through the date of
cancellation at OSI's then-current time and materials rates (not
to exceed the total amount due under that SOW) and all costs
reasonably incurred by OSI in connection with that cancellation.
(c) Termination of this Agreement. This Agreement may be terminated
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(1) by either party on breach by the other party that remains
uncured 30 days after notice specifying the breach with
particularity, or (2) by either party for convenience with 30
days notice after completion or termination by Adelphia under
Section 8(b) of all outstanding Work Orders.
(d) Survival. On termination of this Agreement for any reason, the
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obligations of Adelphia to pay amounts
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owed to OSI and to discharge any liability incurred before
termination will survive, together with the provisions of the
Sections 5, 6, 7, 9, 10, 11 and 12.
(e) Termination of Licenses. The licenses granted in Section 6(b)
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will terminate (1) on any violation by Adelphia of Sections 5, 6
or 7 remaining uncured for 30 days after notice from OSI, (2) as
to any Related Entity, (a) six months following the date the
entity ceases being a Related Entity if the entity has
independently entered into a direct contract with OSI obligating
it to observe all of the terms and conditions of this Agreement
and limiting its use of the Deliverables to those uses in effect
immediately prior to the date it ceased to be a Related Entity,
or (b) on the date the entity ceases being a Related Entity if it
has not entered into such a direct contractual relationship with
OSI, or (3) on notice from Adelphia. On termination of a license,
Adelphia will immediately destroy or return to OSI all copies of
the Deliverables then in its possession or under its control, and
Adelphia will have no continuing rights to the Deliverables.
9. WARRANTIES
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(a) Limited Warranty. Except as expressly stated otherwise in a
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particular Work Order, OSI warrants that each Deliverable will
substantially conform to the specifications in the applicable
Work Order (1) for 120 days after it is first delivered to
Adelphia if that delivery occurs during the first year that this
Agreement is in effect, and (2) for 90 days after it is first
delivered to Adelphia if that delivery occurs at any time after
the first year that this Agreement is in effect.
(b) Year 2000. All Deliverables will, in their normal operation,
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function as follows: (1) values for current dates before, during
and after the Year 2000 will not cause interruptions in normal
operation, (2) manipulations of date-related data will produce
desired results before, during and after the year 2000 and
management of stored dates will not cause problems, (3) date
elements in interfaces and data storage will permit specification
of century to eliminate date ambiguity, (4) for any date element
represented without century, two digit years greater than or
equal to 69 will convert to 19xx and two digit years less than 69
will convert to 20xx, and (5) leap years will be properly
processed and recognized. No warranty is provided for any date-
related problems caused by any other software or any hardware
connected to a Deliverable.
(c) Self-Help or Unauthorized Code. None of the Deliverables will
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contain any "Self-Help Code" or Unauthorized Code. As used in the
Agreement, "Self-Help Code" includes any backdoor, time bomb,
drop dead device or other software routine designed to disable a
computer program automatically with the passage of time or under
positive control of a person other than Licensee, but does not
include any (a) authorization keys or other code designed to
limit use of the OSI Software to specific purposes or on specific
equipment, or (b) software routines designed to permit OSI (or
any other person acting on authority of OSI) to obtain access to
Adelphia's computer systems (e.g., remote access via modem) for
purposes of authorized maintenance or technical support.
"Unauthorized Code" means any virus, Trojan Horse, worm or other
software routines designed to permit unauthorized access or to
disable, erase or otherwise harm software, hardware or data. The
term "Unauthorized Code" does not include Self-Help Code.
(d) Modifications. OSI makes no warranty as to any portion of a
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Deliverable that is modified, altered or combined with any other
software, by any party other than OSI.
(e) Warranty Limitations. SECTIONS 9(a), 9(b) AND 9(c) CONTAIN THE
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EXCLUSIVE WARRANTIES UNDER THIS AGREEMENT. EXCEPT FOR THAT
WARRANTY, SERVICES AND DELIVERABLES ARE PROVIDED "AS-IS." NO
OTHER WARRANTY, ORAL OR WRITTEN, IS EXPRESSED OR IMPLIED. OSI
does not warrant that (1) the DELIVERABLE will perform in every
operating environment, (2) the operation of the DELIVERABLE will
be uninterrupted or error free, or (3) any defect or malfunction
in the DELIVERABLE is correctable or will be corrected. OSI
SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE. The limited warranties in
this Section will not apply to, and OSI will have no warranty
obligation with respect to, any defect or malfunction (1) that
results from improper modification or use by Adelphia, from
hardware, software, interfacing or supplies other than those
provided by OSI in the form provided by OSI, or from any cause
other than ordinary use, or (2) where the nonconformity cannot be
reproduced, where OSI is not provided with a the parameters,
procedures or conditions which generate the problem in sufficient
detail to permit it to isolate the code which causes the problem,
or where OSI is not provided with all data files, rules, software
and system access necessary to reproduce and analyze the problem.
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10. LIMITATIONS, REMEDIES
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(a) Exclusive Remedies. Adelphia's sole remedy for a breach of the
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limited warranty provided in Section 9(a) will be for OSI to use
its commercially reasonable efforts to bring the Deliverable into
substantial conformity with applicable specifications, replace
the Deliverable with an equivalent Deliverable substantially
conforming with those specifications or, if OSI is unable to so
restore the Deliverable or to provide an equivalent replacement,
then for Adelphia to obtain a refund equal to the value of the
non conforming portion of the Deliverable on its return to OSI.
(b) Aggregate Liability. NEITHER PARTY WILL BE LIABLE TO THE OTHER
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PARTY FOR DAMAGES IN EXCESS OF THE TOTAL AMOUNTS TO BE PAID TO
OSI UNDER THIS AGREEMENT. THIS LIMITATION WILL (1) APPLY
REGARDLESS OF THE FORM OF ACTION, WHETHER CONTRACT OR TORT,
INCLUDING NEGLIGENCE AND STRICT LIABILITY, AND (2) NOT APPLY TO
INDEMNITY UNDER SECTION 10 OR TO A BREACH OF SECTIONS 6 OR 7, OR
TO LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY THE GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT OF EITHER PARTY.
(c) Damages. NEITHER PARTY WILL BE LIABLE, REGARDLESS OF THE FORM OF
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ACTION, FOR LOST REVENUES, PROFITS OR SAVINGS, OR FOR INDIRECT,
CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, EVEN IF
THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THE DAMAGES.
THIS SECTON 9(d) WILL NOT APPLY TO A BREACH OF THE OBLIGATIONS IN
SECTION 7.
11. INDEMNIFICATION
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(a) Cross Indemnification. If an act or omission of one of the
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parties, its officers, directors, employees, agents or
representatives, causes or results in the (1) loss, damage to or
destruction of property of the other party or third parties, or
(2) death or injury to persons, including but not limited to
employees of either party, then that party will indemnify, defend
and hold the other party, its officers, directors, employees,
agents and insurers harmless from and against all claims,
actions, damages, demands, liabilities, costs and expenses,
including reasonable attorneys' fees and expenses, (collectively,
"Claims") resulting therefrom.
(b) Indemnification by OSI.
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(1) So long as Adelphia complies with the terms of Sections 5
and 7 of this Agreement, OSI will defend Adelphia against
any claims, and indemnify and hold Adelphia harmless
against any judgments, directly or indirectly resulting
from a claimed infringement or violation of any copyright,
patent, trademark, trade secret or other intellectual
property right with respect to the Deliverables. OSI will
have no liability for any such claims or judgments based
solely on (a) the actions of Adelphia, its employees or
agents, (b) use of a version, modification or adaptation of
a Deliverable, if the infringement would have been avoided
by the use of a then-current unaltered release of the
Deliverable, (c) use of Combined Software, if the
Deliverable operated independent of the Combined Software
is not the cause of the infringement, or (d) use of a
Deliverable in combination with any computer software,
hardware or data not delivered in that combination by OSI.
(2) On receiving notice of a claimed infringement, OSI may (a)
settle on terms that permit continued use of Deliverable,
(b) provide a reasonable substitute for the Deliverable,
(c) modify the Deliverable to be non-infringing, or (d) if
the foregoing remedies are not reasonably available, grant
Adelphia a credit for the depreciated value of the relevant
portion of the Deliverable (based on a 48 month life
beginning on the date of its delivery) and accept its
return.
(3) THIS SECTION PROVIDES ADELPHIA'S SOLE REMEDY FOR
INFRINGEMENT OF PATENTS, COPYRIGHTS OR OTHER INTELLECTUAL
PROPERTY RIGHTS.
(c) Indemnification by Licensee. Adelphia will defend OSI and its
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Vendors against any claims, and indemnify and hold OSI and its
Vendors harmless against any judgments, directly or indirectly
resulting from any claimed infringement or violation of any
copyright, patent or other intellectual property right with
respect to a Deliverable to the extent that Licensee Software or
any of the acts described in Section 11(b)(1)(a) - (d) is the
cause of the claimed infringement or violation.
(d) Cooperation. Notwithstanding the above, an indemnifying party is
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under no obligation to defend or indemnify another party unless:
(1) the indemnifying party has been promptly notified of the
claim or suit and furnished with a copy of each pleading,
communication, notice and other action relating to the claim or
suit; (2) the indemnified party permits the indemnifying party,
at the indemnifying party's expense, to assume sole
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authority to conduct the trial or settlement of the claim or suit
and any negotiations related to it; and (3) the indemnified party
promptly provides all information and assistance reasonably
requested by the indemnifying party in connection with the claim
or suit.
12. GENERAL
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(a) Compliance with Export and Other Laws. The Deliverables and all
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related rights, technical data and information are subject to
export controls imposed by the U.S. Government. Adelphia will not
transmit any Deliverable or information relating to a Deliverable
outside of the United States or to any person or entity
prohibited by the U.S. Government, whether by name, by
citizenship, residency or otherwise, and will comply with all
applicable export control restrictions. Each party, at its
expense, will comply with all applicable laws, regulations, codes
and ordinances. Neither party will be bound by any provision of
this Agreement to the extent, but only to the extent, that it
violates applicable law.
(b) Notices. Notices, consents, approvals and communications given
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under this Agreement will be (1) in writing, (2) in the English
language, (3) sent by registered or certified mail, return
receipt requested, postage prepaid, or by a courier service that
obtains signed acknowledgement of receipt, to the address
indicated below the signature block of this Agreement or to such
other address as the affected party designates by prior notice,
and (4) effective on the date received unless a later date is
otherwise indicated in the notice, consent or communication.
(c) Assignment. This Agreement is not assignable, including by
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operation of law, by either party, either in whole or in part,
without the prior consent of the other party, which consent will
not be unreasonably withheld; provided, however, that OSI may
assign this Agreement without such consent in connection with any
merger, acquisition or other combination with or by OSI, or in
connection with the sale of all or substantially all of OSI's
assets, whether directly or indirectly, provided the surviving
entity or the acquiror of those assets, as applicable, agrees in
writing to be bound by all of the terms and conditions of this
Agreement. This Agreement will be binding on and inure to the
benefit of the parties and their respective successors and
permitted assigns.
(d) Governing Law. This Agreement will be governed by and construed
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in accordance with the internal substantive laws of the State of
California, excluding its choice of law principles. The United
Nations Convention on Contracts for the International Sale of
Goods will not apply.
(e) Arbitration. Any dispute, controversy or claim arising out of or
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relating to this Agreement will be finally resolved by binding
arbitration under the Rules of Arbitration of the American
Arbitration Association in effect at the time of the arbitration
("AAA Rules").
(1) The venue of the arbitration will be Dallas, Texas. All
proceedings will be conducted in English and English
translations of all foreign language documents filed,
submitted or exchanged during the proceedings will be
supplied concurrently by the producing party. On reasonable
notice to the other party and the arbitration panel,
parties will be entitled to use expert and rebuttal
witnesses.
(2) Each party will pay its own fees and expenses incurred in
connection with the arbitration. Common expenses of the
arbitration (such as the fees and expenses of the
arbitrator) will be borne by the parties in such amounts or
proportions as the arbitrator may determine.
(3) The award of the arbitrator will be (a) in writing
(including reasons), and (b) final and binding on the
parties. Judgment upon the award may be entered and
enforced by any court of competent jurisdiction.
(4) In no event will the arbitrator award damages that are not
permitted under the express terms of this Agreement.
(5) Without prejudice to the AAA Rules, either party may apply
to any court of competent jurisdiction for such interim
relief as it considers appropriate, without the need to
post bond or other security, or if required, then the
minimum bond or other security permitted.
(f) Equitable Relief. Any breach of a party's obligations with
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respect to intellectual property rights will cause irreparable
injury for which there are no adequate remedies at law. The
aggrieved party will be entitled to equitable relief in addition
to all other remedies that may be available, without the posting
of bond or other security, or if required, then the minimum bond
or security so required.
(g) Force Majeure. Neither party will be liable or held in default
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for a failure or delay in performing its obligations under this
Agreement, other than to make payment for amounts owing or to
comply with Sections 5 and 7, due to any cause beyond its
reasonable control, so long as the party takes all reasonable
steps to avoid
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and minimize the impact of such cause. A party suffering an event
of force majeure will notify the other party as promptly as is
reasonably possible regarding the nature of the event and its
estimate of when the event will no longer apply.
(h) Entire Agreement. This Agreement and the Enterprise License
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Agreement of even date between the parties, including their
respective Exhibits, constitutes the entire agreement between the
parties regarding its subject matter and supersedes all prior
communications, both oral and written, between the parties. This
Agreement may not be modified, and no rights will be waived,
except by an instrument in writing signed by a duly authorized
representative of both parties. If the terms of this Agreement
conflict with the terms of any of its Exhibits, the Exhibits will
prevail. As used in this Agreement, the term "including" means by
way of example and not limitation.
(i) Waivers. No waiver by a party of a breach of this Agreement will
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constitute a waiver of any other breach of the same or any other
provision of this Agreement.
(j) Execution. This Agreement may be executed in multiple
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counterparts, each of which will be deemed an original and all of
which will constitute together one agreement. A counterpart
delivered to a party by facsimile or similar electronic means
will be deemed an original, equivalent in all respects to a
manually executed counterpart.
(k) Intentional Risk Allocation. The provisions of this Agreement
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reflect an informed, voluntary allocation between the parties of
the risks (known and unknown) that may exist in connection with
this Agreement. This voluntary allocation was a material part of
the bargain between the parties and the economic and other terms
were negotiated and agreed to by the parties in reliance on that
allocation.
(l) Independent Contractors. The parties are independent contractors.
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Under no circumstances will the employees of one party be deemed
the employees of the other for any purpose. This Agreement does
not grant authority for either party to act for the other in an
agency or other capacity, or to make commitments of any kind for
the account of or on the behalf of the other.
(m) Severability. If any provision of this Agreement is determined to
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be invalid or unenforceable, it will be deemed to be modified to
the minimum extent necessary to be valid and enforceable. If it
cannot be so modified, it will be deleted and the deletion will
not affect the validity or enforceability of any other provision
unless, as a result, the rights of either party are materially
diminished or the obligations and burdens of either party are
materially increased so as to be unjust or inequitable.
(n) Cumulative Remedies. Except as otherwise provided, the rights and
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remedies in this Agreement are cumulative and in addition to any
other remedies available at law or equity.
IN WITNESS WHEREOF the parties have caused this Agreement to be executed by
their duly authorized representatives.
OBJECTIVE SYSTEMS INTEGRATORS, INC. ADELPHIA COMMUNICATIONS CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Vice President Title: Vice President
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Date: 12/29/99 Date: 12/29/99
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Address for Notices:
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Objective Systems Integrators, Inc. Adelphia Communications Corporation.
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ at Water Street
Folsom, CA 95630 ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Contracts Administration Attn: President
Business Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Facsimile for Notices: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile for Notices: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Adelphia Business Solutions, Inc.
Main at ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel
Facsimile for Notices: (▇▇▇) ▇▇▇-▇▇▇▇
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Exhibit 1
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Acknowledgement
THIS ACKNOWLEDGEMENT is made by the undersigned ("Adelphia") under the
Enterprise-Wide Professional Services Agreement (EPSA - 127), dated as of
December 20, 1999 ("Agreement"), between Adelphia Communications Corporation and
Objective Systems Integrators, Inc. ("OSI"). By execution below, the entity
listed agrees to be bound by the terms and conditions of the Agreement as though
a signatory thereto.
IN WITNESS WHEREOF, The Adelphia Related Entity and the OSI have caused this
Acknowledgement to be executed by their duly authorized representatives as of
the later of the dates indicated below.
__________________________________ OBJECTIVE SYSTEMS INTEGRATORS, INC.
ADELPHIA
By: ______________________________ By: ________________________________
Title:____________________________ Title:______________________________
Date: ____________________________ Date: ______________________________
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Exhibit 2
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Work Order
CONTRACT NO.: EPSA - 127
WORK ORDER NO:____
This Work Order is entered into as of ___________, ____ under the terms of the
Enterprise Professional Services Agreement (EPSA - 127), dated as of December
20, 1999 ("Agreement"), between the parties signing below. All capitalized terms
are defined in the Agreement unless otherwise defined in this Work Order.
Name of Project:
Date Professional Services are Expected to Begin:
OSI's Project Manager::
Adelphia's Project Manager:
Special Requirements:___________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
The Statement of Work for this Project is attached and made a part of the
Agreement.
OBJECTIVE SYSTEMS INTEGRATORS, INC. _________________________________
By: _______________________________ By: _____________________________
Title: ____________________________ Title: __________________________
Date: _____________________________ Date: ___________________________
Page 10
CONTRACT NO.: EPSA - 127
WORK ORDER NO:____
STATEMENT OF WORK
SCOPE OF WORK
-------------
The Professional Services to be performed in accordance with this Agreement
are as follows:
SPECIFICATIONS
--------------
DELIVERABLES
------------
OSI will deliver to Adelphia:
DEPENDENCIES
------------
PROJECT MILESTONES
------------------
Milestone Date due to Adelphia
--------- --------------------
Milestone 1
Milestone 2
ACCEPTANCE CRITERIA
-------------------
FEE WORK ORDER
--------------
Fees will be billed on the following basis:
__Firm Fixed Price ("FFP"); or
__Time-and-Materials ("T&M")
Check one line above. If FFP: such price will be $ _____________. OSI will
invoice Adelphia according to the following schedule:
On execution of this Agreement $
On delivery of first milestone $
On final delivery and acceptance $
Total Firm Fixed Price Amount $
If T&M: The aggregate time costs will not exceed $ ___________ without the
approval of Adelphia, at the applicable hourly rates set forth below, and
material and other expenses will not exceed $ ____________ for a total not
to exceed $ ____________. OSI will invoice Adelphia monthly as set forth in
the Agreement.
Category Hourly Rate Estimated No. of Hours
-------- ----------- ----------------------
Program Manager $ __________ per hour ______________________
Sr. Network Administrator $ __________ per hour ______________________
Jr. Technician $ __________ per hour ______________________
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