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EXHIBIT 10.65
FIRST AMENDMENT TO SOFTWARE LICENSE, MAINTENANCE AND SUBSCRIBER BILLING SERVICES
AGREEMENT
THIS FIRST AMENDMENT TO SOFTWARE LICENSE, MAINTENANCE AND SUBSCRIBER
BILLING SERVICES AGREEMENT is made effective this __ day of December, 1997 by
and between CSC Intelicom, Inc., a Delaware corporation, having its address at
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("CSC") and
Western Wireless Corporation, a Washington corporation having its address at
▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Customer").
BACKGROUND
The parties hereto have executed that certain Software License,
Maintenance and Subscriber Billing Services Agreement dated June
1997 (the "Agreement"). The parties now desire to amend the
Agreement to clarify certain existing provisions as set
forth below.
NOW, THEREFORE, in consideration of the mutual promises of the
parties hereinafter set forth, and for good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties, subject to
the terms and conditions hereof, agree as follows:
1. A new Section 8 is inserted as follows:
8.1 Late Delivery Credits. CSC will provide delivery guarantees
to Customer in the form of credits which may be applied first against
the scheduled delivery payment and then against the final scheduled
acceptance payment as defined in Sections 8 and 51 herein for the
applicable deliverable. These credits shall be calculated on the
following basis as a percentage of the total fees of the deliverable,
for each month or prorated portion thereof of delay:
PENALTY (PERCENTAGE OF TOTAL FEES
OF DELIVERABLE) MONTH
* month 1
* month 2
* month 3
* month 4
* month 5
* month 6
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* Information omitted and filed separately with the SEC pursuant to request for
confidential treatment under Rule 406 of the Securities Act of 1933, as amended.
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The total of all credits provided by CSC under this Section 8 and
Section 11.5(b) shall not exceed * of the fees for the associated
deliverable. This credit shall be in full satisfaction of any liability
CSC may have to Customer for late delivery.
8.2Correction of Software Errors or Enhancement Errors. CSC
shall provide to Customer a credit which may be applied
against the total fees of the deliverable for the failure of
CSC to correct any Critical or Priority Two-High Errors within
the time frames set forth below. These credits shall be
calculated on the following basis as a percentage of the total
fees of the deliverable for each month or prorated portion
thereof of during which the Error(s) is not corrected:
PENALTY (PERCENTAGE OF TOTAL FEES
OF DELIVERABLE) MONTH
* month 1
* month 2
* month 3
* month 4
* month 5
* month 6
Customer shall have 30 days after delivery to complete user
acceptance testing, and will report all Critical or Priority Two-High
Errors discovered during this period to CSC. CSC shall have 30 days from
the end of this acceptance test period ("UAT period") to correct such
Errors. Software quality credits shall begin to accrue 30 days after the
end of the UAT period if Critical or Priority Two-High Errors continue
to exist.
Upon correction of such Critical or Priority Two-High Errors (or
if no such Errors are discovered during the UAT period), Customer shall
use the software within their production environment for an additional
30 days and will report all Critical or Priority Two-High Errors
discovered during this period to CSC. CSC shall have 30 days from the
end of this production test period to correct such Errors. If no
Critical or Priority Two-High Errors are discovered during the 30 day
production testing period, Customer shall be deemed to have accepted
such Software. Software quality credits shall begin to accrue 30 days
after the production testing period if Critical or Priority Two-High
Errors continue to exist.
In no event shall the aggregate credits under this Section 8 and
Section 11.5(b) exceed * of the fees associated with any deliverable.
The credits provided under this Section 8.s shall be in full
satisfaction of any liability that CSC may have to Customer for the
failure to timely correct any Error (except as such Errors may affect
the timeliness of ▇▇▇▇ cycle turnaround as provided in Section 12.)
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* Information omitted and filed separately with the SEC pursuant to request for
confidential treatment under Rule 406 of the Securities Act of 1933, as amended.
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The foregoing procedures replace those set forth in Section 9.2
of the Agreement. There is no payment associated with "conditional
acceptance," as set forth therein.
8.3 Limitation and Applicability of Credits. The total of all
credits provided by CSC under Sections 8 and 11.5(b) shall not exceed *
of the fee for the associated deliverable. Credits shall apply to the
following deliverables and delivery dates:
Software Enhancements. Delivery of software enhancements
shall be deemed to have occurred when CSC makes such software available
to Customer's test environment, and such software has passed CSC's
internal testing and quality assurance process. Late delivery credits
shall begin to accrue on a daily basis the day after the software
enhancement delivery date provided by CSC, to the extent such delay is
caused by CSC or any of its agents or contractors.
Detailed Bid Documents. Delivery of Detailed Bid Documents
shall be deemed to have occurred upon submission of a completed Detailed
Bid Document to Customer representatives.
Implementation and Conversion Services. Delivery of
implementation and conversion services shall be deemed to have occurred
when CSC makes final conversion or implementation information available
for Customer review. Late delivery credits shall begin to accrue on a
daily basis after the delivery date, to the extent such delay is caused
by CSC or any of its agents or contractors.
2. Section 11.5(b) is hereby amended by inserting the following
language:
"CSC shall provide Customer a * which will be applied against
the Detailed Bid Document preparation fees if a Detailed Bid
Document delivery date is not provided to Customer within 10
business days of CSC's receipt of Customer's request (assuming
all necessary information is provided by Customer at the time
of Customer's request to evaluate the enhancement request and
such delay is caused by CSC). The total of all credits
provided by CSC to Customer shall not exceed 100% of the fees
for detailed bid preparation. This credit shall be in full
satisfaction of any liability CSC may have to Customer for
such delay."
3. Section 12.2(b) is hereby amended by deleting "*" in the first and
second paragraphs and inserting "*".
4. Section 12.2(b) is hereby amended by inserting the following
language:
"CSC's meeting this time period is contingent upon:
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* Information omitted and filed separately with the SEC pursuant to request for
confidential treatment under Rule 406 of the Securities Act of 1933, as amended.
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1. All necessary data required to perform the requested
function as requested by CSC is provided to CSC at the
beginning of the time period.
2. Any necessary data or information provided to CSC per
CSC's request by Customer or a vendor of Customer found to
be incomplete or erroneous (CSC will respond within 48
hours if data is incomplete or erroneous) will reset the
agreed-upon beginning date to the date that the correct
data or information is provided to CSC.
3. Any necessary test data provided to CSC by Customer or a
vendor of Customer that is incomplete or does not agree
with documentation provided to CSC by Customer or
Customer's vendors (CSC will respond within 48 hours if
data is incomplete or erroneous) will reset the
agreed-upon beginning date. The new beginning date will be
the date the correct data is provided.
4. Any necessary system or TRIS+ function or actions required
to be performed by Customer and agreed to by Customer must
be completed by the mutually agreed-upon date. Failure by
Customer to perform by the agreed-upon date will reset the
beginning date to the date the function or action is
actually completed.
5. Customer and CSC will each furnish a dedicated point of
contact to the other to insure accurate and timely
involvement by Customer in the process."
5. Section 12.2(c) is hereby amended by deleting "*" in the first and
second paragraphs and inserting "*".
6. Section 12.2(c) is hereby amended by inserting the following
language:
"CSC's meeting this time period is contingent upon:
1. All necessary data required to perform the requested
function as requested by CSC is provided to CSC at the
beginning of the time period.
2. Any necessary data or information provided to CSC per
CSC's request by Customer or a vendor of Customer found to
be incomplete or erroneous (CSC will respond within 48
hours if data is incomplete or erroneous) will reset the
agreed-upon beginning date to the date that the correct
data or information is provided to CSC.
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* Information omitted and filed separately with the SEC pursuant to request for
confidential treatment under Rule 406 of the Securities Act of 1933, as amended.
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3. Any necessary test data provided to CSC by Customer or a
vendor of Customer that is incomplete or does not agree
with documentation provided to CSC by Customer or
Customer's vendors (CSC will respond within 48 hours if
data is incomplete or erroneous) will reset the
agreed-upon beginning date. The new beginning date will be
the date the correct date is provided.
4. Any necessary system or TRIS+ function or actions required
to be performed by Customer and agreed to by Customer must
be completed by the mutually agreed-upon date. Failure by
Customer to perform by the agreed-upon date will reset the
beginning date to the date the function or action is
actually completed.
5. Customer and CSC will furnish a dedicated point of
contract to insure accurate and timely involvement by
Customer in the process."
7. Section 12.2 is hereby amended by deleting "In the event that the CSC
Subscriber Billing Services statement turnaround time for any given cycle is
less than or equal to * after the required Subscriber Billing Turnaround Time,
CSC shall not be required to provide Customer with any credit for late
delivery." and inserting "In the event that the CSC Subscriber Billing Services
statement turnaround time for any normal billing cycle (as defined in Section
12.2.a) is less than or equal to * after the required Subscriber Billing
Turnaround Time, CSC shall not be required to provide Customer with any credit
for late delivery. Credit for late delivery of initial billing cycles as defined
within Sections 12.2.b and 12.2.c shall be calculated as set forth above without
such * grace period."
8. Section 21.2.2 is hereby deleted in its entirety and a new Section
21.2.2 is hereby inserted as follows:
"21.2.2 Subject to the limitations contained within the
Agreement, in the event of termination by CSC under this Section
21, Customer shall be given a period of * days from the effective
date of termination in which to transition its billing services
requirements to another vendor, provided Customer and CSC, using
good faith, can agree on mutually-acceptable terms for the
provision of such services. All services performed by CSC during
this period shall be chargeable at the rates set forth in
Appendix D."
9. Section 25 is amended by adding the following provision as Section
25(5):
(5) that all databases, operating systems, and voicemail and switch
interfaces now or in the future supported by the Software will be
maintained with all new third party vendor's releases within 180-360
days after such release is made commercially available, unless
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* Information omitted and filed separately with the SEC pursuant to request for
confidential treatment under Rule 406 of the Securities Act of 1933, as amended.
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CSC and Customer mutually agree that such release of third party
software is not desirable.
10. The second and third paragraphs of Section 50 are hereby deleted in
their entirety.
11. A new Section 51 is inserted as follows:
"51. Payment
51.1.1 Customer shall pay * to CSC for the TRIS+ Software
and services under Appendix L of the Agreement, in
lieu of the payments set forth therein, as follows:
*, to be wired within the second business day
following the date of execution of this First
Amendment.
*, spread evenly upon acceptance of the 5
deliverables listed in section 51.1.3, below.
Customer acknowledges that fees associated with the
TRIAD conversion are not included within the *
detailed above.
51.1.2 CSC shall provide, without charge, SIM re-use
functionality, zone rating (up to 100 hours of
programming), and its Point of Sale Interface to
Customer and will waive the Right to Use license
fees and maintenance fees associated with such
Software. Customer shall pay for any customization
or implementation costs necessary to implement such
Software in accordance with a separately executed
statement of work.
51.1.3 For the purposes of payment of penalties under
Section 8, the price for the different releases and
activities shall be allocated as follows:
AMOUNT
SUBJECT
DELIVERABLE TO PENALTY DELIVERY DATE
(1) Book ▇▇▇▇ Format * *
(2) Release 3.1.1 * *
(3) Cellular Conversion * *
(4) Release 3.1.2 * *
(5) Release 3.2 * *
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* Information omitted and filed separately with the SEC pursuant to request for
confidential treatment under Rule 406 of the Securities Act of 1933, as amended.
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*
(1) Book ▇▇▇▇ Format includes the functionality defined
within the Book ▇▇▇▇ functional requirements
document.
(2) Release 3.1.1 will include, at a minimum, Selective
Messaging and corrections for all Software Errors
that have been coded and unit tested by *.
(3) Cellular Conversion will include conversion of all
cellular billing cycles from Release 1.x to Release
3.x.
(4) Release 3.1.2 will include, at a minimum, SIM
re-use functionality and corrections for all
Software Errors that have been coded and unit
tested by *.
(5) Release 3.2 will include, at a minimum, Cross
Market Billing and corrections for all Software
Errors that have been coded and unit tested by *.
51.2 Payment for all future enhancements and other conversions
provided by CSC at the request of Customer shall be made
as follows:
* upon delivery (30 day invoice)
* upon final scheduled acceptance of the deliverable (30
day invoice)
12. Appendix D, Section 11(e) is amended by inserting the following
language:
"CSC shall provide a late delivery penalty equal in amount
to the current CSC "Premium Charge," to the extent CSC is
unable to implement changes within the specified time
periods, provided that:
1. All necessary data required to perform the requested
function as requested by CSC is provided to CSC at the
beginning of the time period.
2. Any necessary data or information provided to CSC per
CSC's request by Customer or a vendor of Customer found to
be incomplete or erroneous (CSC will respond within 48
hours if date is incomplete or erroneous) will reset the
agreed upon beginning date to the date that the correct
data or information is provided to CSC.
3. Any necessary test data provided to CSC by Customer or a
vendor of Customer that is incomplete or does not agree
with documentation provided to CSC by Customer or its
vendors (CSC will respond within 45 hours if date is
incomplete or erroneous) will reset the agreed upon
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* Information omitted and filed separately with the SEC pursuant to request for
confidential treatment under Rule 406 of the Securities Act of 1933, as amended.
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beginning date. The new beginning date will be the date
that the correct data is provided to CSC.
4. Any necessary system or TRIS+ functions or actions
required to be performed by Customer and agreed to by
Customer must be completed by the mutually-agreed upon
date. Failure by Customer to perform by the agreed-upon
date will reset the beginning date to the date the
function or action is actually completed.
5. Customer and CSC will each furnish a dedicated point of
contact to the other to insure accurate and timely
involvement by Customer in the process.
6. The number and scope of the requested changes are
reasonable to be completed within the agreed time and
within parameters that limit the number and scope of the
changes. The maximum numbers and scope of the changes
allowable are as follows:
RATE PLAN CHANGES - no programming: (max 10 unique plans within 5
days)
RATE PLAN CHANGES - programming required: (not greater than 80
hours of programming within 1 month)
FE OR BE TABLE CHANGES: (20 unique FE Additions/changes within 5
days) and (15 unique BE Additions/changes within 5 days)
UNBILLABLE UPDATE FORMS: (5000 customers within 5 days)
SWITCH SOFTWARE MODIFICATIONS - Software Upgrade/change: (2
switches within 30 days)
SWITCH SOFTWARE MODIFICATIONS - Hardware Upgrade/change: (2
switches within 30 days)
SWITCH SOFTWARE MODIFICATIONS - Trunk records/cell sites: (max 20
unique cell sites/trunks within 5 days)
TRIS+ FE FILE/DIRECTORY STRUCTURE CHANGES: (15 unique directory
changes within 2 weeks)
▇▇▇▇ STATEMENT MESSAGE PAGE: (20 different message pages
-combination of markets or messages- within 3 days)"
13. Section 2(c) of Appendix D is hereby modified by inserting the
following language:
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"Effective March 8, 1998, CSC shall provide Customer a
point of contact for resolving technical production issues
twenty-four hours a day, seven days a week (excluding CSC
Holidays)."
14. Appendix J is hereby modified by adding the attached "Addendum to
Appendix J -- Performance ▇▇▇▇▇▇▇▇▇".
▇▇. A new Section 52 is inserted as follows:
"52. Software Release Schedule
CSC shall provide Customer, at a minimum, two (2) maintenance
Software releases intended to correct Errors and two (2) feature
Software releases intended to provide new features and
functionality."
16. The Production conversions for the TRIAD conversion shall start on
*, and the production conversions shall all be complete by *. All other
scheduling to the contrary in the Agreement is hereby superceded. Triad
conversion will include conversion of all TRIAD ▇▇▇▇ cycles to release 3.x.
17. All other provisions contained in the Agreement are hereby
reaffirmed and shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this 1st
Amendment to Software License, Maintenance and Subscriber Billing Services
Agreement to be duly executed on the day and year first above written.
ATTEST: CSC INTELICOM, INC.
/s/ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇ (SEAL)
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▇▇▇▇▇ ▇▇▇▇▇, Senior Vice President
ATTEST: WESTERN WIRELESS CORPORATION
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇ (SEAL)
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[12.4.97]
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* Information omitted and filed separately with the SEC pursuant to request for
confidential treatment under Rule 406 of the Securities Act of 1933, as amended.
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