EXHIBIT 10.9
LICENSE AGREEMENT
THIS LICENSE AGREEMENT (the "Agreement") is entered into this day of
October 8, 2001 between H.O. SYSTEMS, INC., a corporation having its office at
000 Xxxx Xxxxxxxxxx Xxxxxx, Xxxxxxxx, XX 00000 ("H.O.") and XXXXXX
COMMUNICATIONS CORPORATION ("Xxxxxx"), a corporation having its principal office
at 00000 Xxxxxxxx Xxx, Xxxxxxxx Xxxx, XX 00000 .
WHEREAS, Xxxxxx and its controlled affiliates (collectively, the
"Customer") desire to obtain a limited nonexclusive license right to use the
H.O. Cellular Information Management System known as H.O. CIMS billing and
information management licensed software (the "Licensed Software") as described
below, in each and every Cellular Market managed, owned or otherwise operated by
Customer;
WHEREAS, H.O. desires to license the Licensed Software to Customer upon
the terms and conditions set forth in the Agreement, for use in each and every
Cellular Market managed, owned or otherwise operated by Customer;
WHEREAS, Customer and H.O. previously entered into a license agreement
dated February 15, 1999 (the "Previous Agreement");
WHEREAS, H.O. and Customer intend for this Agreement to take the place of
the Previous Agreement, effective January 1, 2002; and
WHEREAS, H.O. desires to license the Licensed Software to Customer upon
the terms and conditions set forth in this Agreement;
THEREFORE, in consideration of the above declarations and the covenants
and conditions set forth in this Agreement, the parties agree as follows:
SECTION 1. Grant; Term. In consideration of the payment of a one time
license fee of * (which has already been paid by Customer), H. O. hereby
grants to Customer a nontransferable, nonexclusive license to use the Licensed
Software during the term of this Agreement. The initial term of this Agreement
will commence January 1, 2002 (the "Effective Date") and will end on December
31, 2003, unless terminated earlier in accordance with the provisions of this
Agreement. Thereafter, the term of this Agreement will automatically extend for
successive one year periods after such anniversary date unless either of the
parties notifies the other party in writing at least 90 days prior to such date,
or 90 days prior to the end of any such one year extension period, as the case
may be, that this Agreement will not be so extended. During the term of this
Agreement, Customer agrees that H.O. shall be the exclusive provider of billing
systems and services for the active telephone, pager, prepaid and data service
numbers in service (the "Active Users") managed, owned or otherwise operated by
Customer, provided that this exclusivity provision will only apply to (i)
Customer's existing cellular markets and any comparably sized cellular markets
subsequently swapped by Customer in exchange for such existing markets and (ii)
new cellular markets acquired by Customer after the date hereof that are
existing H.O. customers or have less than * Active Users.
---------
* Confidential information has been omitted and filed separately with the
Securities and Exchange Commission.
SECTION 2. Limitations on Use. Customer shall use the Licensed Software
only on production and test environment Central Processing Units designated by
H.O. (the "Designated CPU"). Customer may make one (1) backup copy of the
Licensed Software, for backup purposes, which must display the copyright notice
and information relating to the proprietary rights as they appear in the
Licensed Software. Customer shall not, and shall not allow its employees, agents
or any other person, to decompile disassemble, or reverse engineer any portion
of the Licensed Software. Customer shall not allow the Licensed Software to be
used for time-sharing or service bureau, or any similar purpose. In the event
the Designated CPU fails, Customer may use the Licensed Software on another
production processing unit at the same location upon notification to H.O.
SECTION 3. Confidentiality.
(a) Both parties acknowledge that they will possess Confidential
Information of the other party, including the other party's proprietary or
business information, trade secrets, as well as the Licensed Software, and other
vital data on each party's business. Each party will use commercially reasonable
efforts, but not less stringent than the means that it uses to protect its own
confidential information, to prevent the disclosure and to protect the
confidentiality of written information received from the other party which is
marked or identified as confidential, or which relates to the number of
subscribers (collectively, "Confidential Information"). Each party will use
Confidential Information received from the other party only in connection with
the purposes of this Agreement. The provisions of this Section 3 will not
prevent either party from disclosing its own Confidential Information or from
disclosing Confidential Information which is (a) already known by the recipient
party without an obligation of confidentiality; (b) publicly known or becomes
publicly known through no unauthorized act of the recipient party, (c)
rightfully received from a third party, or (d) required to be disclosed pursuant
to a requirement of a governmental agency or law so long as the disclosing party
provides the other party with notice of such requirement prior to any such
disclosure. This Section 3 shall survive the termination or expiration of this
Agreement.
(b) The term "Confidential Information" as used above shall also
include any and all terms and provisions of this Agreement, including, without
limitation, the pricing terms set forth in or related to this Agreement (the
"Pricing Terms"). In addition to Customer's obligations set forth in Section
3(a) above, Customer shall at all times use its best efforts to prevent the
disclosure and protect the confidentiality of the Pricing Terms. Customer shall
not disclose any Pricing Term or aspect thereof whatsoever to any person
whatsoever unless (i) expressly authorized in writing by H.O., or (ii) Customer
is legally compelled to make such disclosure and Customer has furnished H.O.
prompt notice of such fact (so that H.O. may seek an appropriate protective
order or other remedy) and a written opinion of its counsel reasonably
acceptable to H.O. opining that Customer is required to make such a disclosure
or else stand liable for contempt or suffer other material censure or material
penalty. In the event disclosure is permitted under clause (ii), Customer shall
use its best efforts to obtain reliable assurance that confidential treatment
will be accorded the Confidential Information so disclosed.
(c) Each party agrees to indemnify and hold the other party harmless
from any damages, loss, cost, or liability (including legal fees and the cost of
enforcing this indemnity) arising out of or resulting from any unauthorized use
or disclosure by such party or its employees
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or agents of the Confidential Information or other violation of this Section 3.
In addition, because an award of money damages (whether pursuant to the
foregoing sentence or otherwise) would be inadequate for any breach of this
Agreement by either party or its employees or agents and any such breach would
cause the other party irreparable harm, each party also agrees that, in the
event of any breach or threatened breach of this Agreement, the other party will
also be entitled, without the requirement of posting a bond or other security,
to equitable relief, including injunctive relief and specific performance. No
right or remedy conferred upon either party by any provision of this Agreement
is intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or thereafter existing at
law or in equity or otherwise.
SECTION 4. Warranty. H.O. warrants that it has the power and authority to
grant this License to Customer and that the Licensed Software will be free from
material errors. H.O. also warrants that the Licensed Software will perform
substantially in compliance with the specifications of the cellular telephone
industry standards applicable to the services to be performed, including roaming
clearinghouse standards for the processing of roaming records as promulgated
from time to time contained in the software. THE FOREGOING WARRANTIES ARE IN
LIEU OF ALL OTHER WARRANTIES EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED
TO, IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES OF
MERCHANTABILITY.
SECTION 5. Installation and Training:
(a) H.O. shall provide initial training, free of charge, for each
new market at each new cluster or call center acquired by Customer, or where
deemed appropriate by Customer and H.O., in the operation and use of the
Licensed Software and associated systems either at the Customer's site or in
Savannah, Georgia, as requested by Customer. Reasonable out-of-pocket expenses,
such as travel, meals and lodging, shall be paid by Customer. Training shall
consist of the following:
- Installation and optimization of all computer network
components.
- Understanding accounting, monthly; and daily reports.
- Administration of A/R collection procedures.
- Work order, payment, and adjustment processing.
- Switch Manager (if applicable).
- Table updates and changes.
- Roamer distribution (incollects and outcollects).
- Documentation.
(b) Any additional training, after the initial training described
above, requested by Customer shall be at the hourly rate of $125.00. The
Customer shall reimburse H.O. for all reasonable out-of-pocket expenses, such as
travel, meals and lodging, incurred by H.O. in connection with any additional
training requested by Customer.
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SECTION 6. License Fees.
(a) In consideration for the Licensed Software and the other
services provided by H.O. hereunder, H.O. shall invoice Customer on a monthly
basis following the final xxxx run for each month, a license and maintenance fee
equal the product of: (x) the number of Active Users for such month in each of
the tiers below, times (y) the applicable rate for such tier for such month,
which will be the following:
0 to 500,000 500,001 or more
Period Active Users Active Users
------ ------------ ------------
January 1, 2002 - December 31, 2002 * *
January 1, 2003 - December 31, 2003 * *
(volume discounts are tiered and not cumulative)
(b) During the term of this License Agreement, the license and
maintenance fee shall not be less than * per month.
(c) Notwithstanding the foregoing pricing, so long as H.O. is
providing billing services for 1,000,000 or more Active Users in any month, the
average maintenance fee per Active User charged to Customer hereunder in any
month will not be more than the average maintenance fee charged to any other
like-sized organization for a contract with a two-year term or less.
(d) For the avoidance of doubt, "tiered" volume discounts means that
if, for example, H.O. provides bills for 1,400,000 Active Users during the month
of January, 2003, the monthly license fee pursuant to subparagraph (a)(i) above
will be: *
(e) Effective on each January 1 beginning January 1, 2003, upon not
less than 60 days notice, H.O. will be entitled to an annual increase of the
license and maintenance fees and hourly charges hereunder by an amount equal to
50% (or such larger percentage as mutually agreed) the percentage increase in
the Consumer Price Index for the 12 months ended through the immediately
preceding September 30.
(f) For purposes of calculating the license and maintenance fees
hereunder, an Active User that uses both telephone and data services will only
count as one Active User.
(g) For purposes of calculating the number of Active Users and
amount of license fees hereunder, Customer's Active Users will be aggregated
with the Active Users for whom H.O. is providing services to under the similar
License Agreement dated the date hereof between H.O. and American Cellular
Corporation, an affiliate of Customer.
---------
* Confidential information has been omitted and filed separately with the
Securities and Exchange Commission.
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SECTION 7. Maintenance and Support.
(a) The license fee covers all updates and modifications to the
Licensed Software as requested by Customer which H.O. furnishes without charge
to all Customers of the Licensed Software (software releases).
(b) Maintenance shall be performed from remote location through the
use of one, or more if necessary, frame relay or equivalent connection to H.O.
offices. H.O.'s out-of-pocket expenses for such frame relay and network
connections shall be passed through to, and paid for by, Customer. All updates
and modifications will be furnished in operable condition. The license fee does
not cover "customizations." Customizations are substantial modifications to the
Licensed Software made on behalf of the Customer and not furnished to all other
H.O. clients. Customizations, if feasible, shall be made at Customer's written
request, at the rate of * per person-hour. Customer shall not make any
modifications or additions to the Licensed Software or derivative works of the
Licensed Software without the prior written consent of H.O. H.O. shall not be
responsible for maintenance or support of any portion of the Licensed Software
affected by modifications, additions, or derivative works made by the Customer.
H.O. shall have sole and exclusive rights in and ownership of all additions to,
modifications, derivative works, and customizations of the Licensed Software.
Customer will afford to the representatives of H.O. access, during normal
business hours, to Customer's premises sufficient to enable H.O. to inspect,
repair, replace or remove any equipment or other assets of H.O. installed or
otherwise present on Customer's premises.
(c) H.O. Software shall provide roaming distribution for Customer at
no additional charge. Roaming distribution is considered the processing of
Customer outcollects, timely delivery of those records to the appropriate
clearinghouse, and timely delivery of incollects as they are received from the
appropriate clearinghouse for inclusion in Customer's monthly billing process.
Timely is defined as the submission of outcollect messages to the appropriate
clearinghouse within 30 days of the call occurrence, or the industry standard as
defined by Cibernet Corp. of Washington, D.C., whichever is shorter.
(d) H.O. Software will contract with a third party vendor for print
and mail services for Customer's monthly xxxx processing (including postage,
printing, stuffing, mailing, micro fiche/CD Rom). Customer may also transmit
xxxxxxx messages to the printing vendor supplying print and mail services. Upon
receipt of the printer's xxxx image tape or electronic transmission from
Customer, H.O. guarantees a turnaround time of three (3) days if the tape or
electronic transmission is in readable format. In the event H.O. is unable to
arrange for the provision of printing services, Customer shall, in addition to
any other rights it may possess, have the right to contract directly with any
third party, including H.O.'s vendor, for printing services. All costs
associated with this Paragraph 7(d) shall be the responsibility of the Customer.
(e) Customer will be responsible for the costs of all necessary (i)
computer hardware specified by H.O. and agreed with Customer that is deployed
after the date of execution of this Agreement (except for the S85 risc6000
system that will be used for porting sys025 to the AIX environment, which will
be paid for by H.O. and remain H.O.'s property), (ii) operating systems and
other software and tools (including upgrades) used to provide billing services
on either Customer's or H.O.'s equipment to Customer's Active Users after the
date of
----------
* Confidential information has been omitted and filed separately with the
Securities and Exchange Commission.
5
execution of this Agreement and (iii) 50% of hardware maintenance costs for
H.O.-owned equipment and 100% of hardware maintenance costs for Customer-owned
equipment. The right to title of ownership of such hardware and software shall
be retained by Customer. H.O. will retain title to hardware and software
previously purchased by it and will have the right to reclaim its field
equipment after Customer's hardware is operational or at the termination of this
Agreement. The computer hardware shall include the Designated CPU; printer;
necessary tape drive devices; I/O terminal device server for remote offices and
a high-speed modem for maintenance communications. H.O. will not provide cables
or cabling services, back up tapes, terminals or paper stock for reports and/or
xxxxxxx notices. Customer shall be responsible for the maintenance, repair,
upgrades, and replacement of the computer hardware owned by it in the event of
failure or factory defects (excluding misuse, abuse, neglect, or natural
disaster) during the term of this Agreement. H.O. will use best efforts to
assist Customer in the maintenance, repair upgrades and replacement of computer
hardware owned by Customer. If Customer is unable to provide the necessary
maintenance, H.O. will dispatch, at Customer's expense, its own support
personnel or contracted support personnel. Within 60 days after the execution of
this Agreement, H.O. and Customer will develop a mutually acceptable capital
expenditure plan, which will be periodically reviewed and updated by the
parties.
(f) H.O. and Customer will maintain enough memory (RAM) and disk
drive space to provide online retrieval of six (6) months call detail and twelve
(12) months account level detail inclusive of memos and work orders. Postage and
shipping charges shall be paid by the shipping party in all cases for the
shipment of repaired or replacement parts. All costs arising from the
maintenance, repair or replacement of the hardware owned by Customer or H.O.
resulting from lightning, electrical surges or Acts of God shall be the
responsibility of the Customer.
(g) H.O. will provide the support resources described in Addendum A.
The Licensed Software will comply with the performance standards set forth in
Addendum B. In addition, H.O. agrees to that it will undertake the projects
listed on Addendum C and complete such projects by the dates listed thereon.
SECTION 8. Limitation of Liability. H.O.'s LIABILITY FOR ALL DAMAGES
OCCURRING UNDER THIS AGREEMENT FROM ANY CAUSE OF ACTION WHATSOEVER EXCEPT
INTENTIONAL, WILLFUL MALFEASANCE SHALL NOT EXCEED THE AVERAGE OF THE THREE
PREVIOUS MONTHS MAINTENANCE FEES PAID BY CUSTOMER. NOTWITHSTANDING ANY OTHER
PROVISION CONTAINED HEREIN, H.O. SOFTWARE SHALL IN NO WAY BE LIABLE FOR LOST
PROFITS, LOST COMPUTER TIME, OR ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES.
THE OCCURRENCE OF ANY LOSS REIMBURSED TO CUSTOMER UNDER THIS PROVISION SHALL BE
IN THE FORM OF CREDITS AGAINST OUTSTANDING INVOICE BALANCES DUE TO H.O.
SECTION 9. Infringement Indemnity. Notwithstanding anything to the
contrary in this Agreement, H.O. will, at its own expense, defend any action
brought against Customer to the extent such action is based on a claim that the
Licensed Software, used within the scope of the license granted herein,
infringes a copyright perfected under United States statute, infringes a patent
granted under United States law, or constitutes an unlawful disclosure, use, or
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misappropriation of another party's trade secrets or similar property right.
H.O. will bear the expense of such defense and pay any damages and attorneys'
fees finally awarded by a court of competent jurisdiction which are attributable
to such claim, provided that Customer notifies H.O. promptly in writing of the
claim, and allows H.O. to fully direct the defense or settlement of such claim.
H.O. will not be responsible for any settlement or compromise made without its
consent. Should the Licensed Software, or any component thereof, become, or in
H.O.'s reasonable opinion, be likely to become, the subject of a claim subject
to the provisions of this Section 9, then H.O. may, at its option, (i) use
commercially reasonable means to procure for the Customer the right to continue
using the Licensed Software so that it becomes non-infringing provided that the
level of services rendered to Customer will be materially equivalent to the
services rendered prior to such replacement or modification or (ii) terminate
any further obligations of Customer to use the Licensed Software.
SECTION 10. No Transfer or Export. Customer shall not assign, sub-license
or otherwise transfer, in whole or in part, this Agreement or any license or
right granted hereunder, and Customer shall not permit any such assignment,
sublicense or other transfer except (i) to a wholly owned subsidiary of Customer
upon written notice to H. O. or (ii) with H.O.'s prior written consent, which
consent will not be withheld if the transfer is made in connection with the sale
of a FCC license owned by Customer and the transfer relates only to the Active
Users of the jurisdiction covered by such FCC license. In such event, Customer
or transferee will pay H.O. for reasonable out-of-pocket expenses and technical
support (at a rate of * per hour) in connection with the implementation of such
transfer. H.O. may at its sole discretion assign or otherwise transfer its
rights and obligations under this Agreement to any third party that is
reasonably capable of performing H.O.'s obligations hereunder, whether or not
affiliated with H.O., upon notice to Customer of such assignment or transfer,
with such assignment or transfer being effective as of the date specified in
such notice. Customer shall not export the Licensed Software outside of the
United States without the prior written consent of H.O.
SECTION 11. Default and Termination.
(a) In the event that either party hereto materially defaults in the
performance of any of its duties or obligations hereunder (excluding defaults
relating to the items covered in Section 7(g), which remedies are covered in the
related Addendums), which default shall not be substantially cured within 45
days after written notice is given to the defaulting party specifying the
default, or, with respect to any default which cannot be reasonably cured within
45 days, if the defaulting party fails to proceed within 45 days to commence
curing said default and thereafter to proceed expeditiously to substantially
cure the same, then the party not in default may, by giving written notice
thereof to the defaulting party, terminate this Agreement as of a date specified
in such notice of termination.
(b) Upon termination of the Agreement pursuant to Section 3 or
Section 11(a), the License granted hereunder shall cease and Customer shall
immediately destroy the Licensed Software and any related materials, equipment
or other assets, unless H.O. requests, in writing, the return of any such
materials. In this event, such materials shall be immediately returned. Customer
shall furnish H.O. with a written certificate stating that the original Licensed
Software and any backup copies of the Licensed Software in the Customer's
possession have been destroyed.
----------
* Confidential information has been omitted and filed separately with the
Securities and Exchange Commission.
7
SECTION 12. General. This Agreement shall constitute the entire agreement
between the parties and, effective as of the Effective Date, supersedes the
Prior Agreement (except for Section 7(e), which will be effective immediately).
This Agreement shall be binding on the parties and their respective successors
and assigns. The parties acknowledge that this Agreement shall remain in full
force and effect in accordance with its terms notwithstanding any merger or sale
of Customer or H.O. with or into any other person. This Agreement shall not be
modified except by written document signed by both parties. This Agreement shall
be governed by the laws of the State of Georgia. Any waiver of any breach of any
provision of this Agreement shall not operate as a waiver of any subsequent
breach. If any provisions of this Agreement are held invalid or unenforceable,
the validity and enforceability of the remaining provisions shall in no way be
affected or impaired thereby.
SECTION 13. Sales and Transfers of Active Users. The parties acknowledge
that this Agreement shall remain in full force and effect in accordance with its
terms notwithstanding any change of control or merger of such party with or into
any other person. If Customer shall merge with a third party or become acquired
by a third party, H.O. shall continue to provide services under this Agreement
with respect to the Active Users in all of Customer's markets (e.g., MSA's and
RSA's) immediately prior to the merger or sale.
SECTION 14. Employee Hiring. H.O. and Customer agree that each other's
employees shall not be hired, induced or otherwise persuaded to become an
employee or agent of the other without the written consent of the other party.
SECTION 15. Escrow of Software. H.O. Software shall contract with a third
party (the "Escrow Provider") for the on-going storage and protection of the
source code and related documentation for the Licensed Software and other
products made available to Customer under this Agreement. The Escrow Provider
shall be mutually agreed to by H.O. Software and the Customer. Immediately
following the execution of the escrow contract, H.O. shall deposit with the
Escrow Provider a copy of the source code and related documentation for the
release or releases of the Licensed Software being made available to the
Customer. Further, as additional versions of the Licensed Software are created
and issued by H.O., H.O. will provide copies of source code and related
documentation to the Escrow Provider within 30 days of the new version being
utilized by the Customer. The term of the escrow contract shall coincide with
the term of this Agreement. The escrow contract will be established such that
deposited materials may only be released to the Customer under the following
conditions:
- H.O. or any subsequent acquirer of H.O. ceases operations as a
provider of the Licensed Software; or
- H.O. ceases to provide maintenance as defined in Section 7 for
a period of 12 consecutive months.
It is understood that the release of deposited materials shall be solely to
allow the Customer to continue using the Licensed Software for the originally
intended purposes as defined elsewhere in this Agreement. Under no circumstances
will the release of deposited materials to Customer be for any purpose other
than for Customer to use for internal processing of the Customer's transactions.
8
SECTION 16. Relationship of the Parties. The relationship of the parties
is that of licensor and licensee. Nothing herein is intended or will be
construed to establish any agency, partnership or joint venture relationship
between the parties.
SECTION 17. Notices. Notices under this Agreement will be in writing and
will be given or made by delivery in person, by courier service, by facsimile or
by registered or certified mail (postage prepaid, return receipt requested).
Notices shall be effective on the date received. Notices sent by registered or
certified mail shall be deemed received on the date of delivery as indicated on
the return receipt; notices sent by facsimile will be deemed received on the
date transmitted. Either party may change its address and the related
information for notice by written notice given to the other party in accordance
with this paragraph.
To H.O.: H.O. System, Inc.
000 Xxxx Xxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: X. Xxxx Xxxxxxxxx
Fax: 000-000-0000
with a copy to:
LiveWire Corporation
000 Xxxxxxxxxxx Xxxxxx
Xxxxx Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxxx
Fax: 000-000-0000
To Customer: Xxxxxx Communications Corporation
00000 Xxxxxxxx Xxx
Xxxxx 000
Xxxxxxxx Xxxx, XX 00000
Attention: R. Xxxxxx Xxxxxx
Fax: 000-000-0000
With a copy to:
Xxxxxx Communications Corporation
00000 Xxxxxxxx Xxx
Xxxxx 000
Xxxxxxxx. Xxxx, XX 00000
Attention: Xxx Xxxxxx
Fax: 000-000-0000
SECTION 18. Press Releases. Neither party will release any public
statements or press releases concerning the provisions of this Agreement without
the consent of the other party (or except as required by applicable securities
or other laws or regulations).
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Customer represents that it has read this Agreement and understands and
agrees to all terms and conditions stated herein.
ACCEPTED:
H.O. SYSTEMS, INC.
By: /s/ X. Xxxx Xxxxxxxxx
-----------------------------------
Name: X. Xxxx Xxxxxxxxx
Title: President
XXXXXX COMMUNICATIONS CORPORATION
By: /s/ G. Xxxxxx Xxxxx
-----------------------------------
Name: G. Xxxxxx Xxxxx
Title: President
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ADDENDUM A
During the term of the Agreement, H.O. agrees to provide two on-site
representatives to be trained in Savannah for assignment in Oklahoma City.
Salary and expenses of such on-site representatives will be paid for by
Customer, but in no event more than * per year in the aggregate. Benefits and
moving expenses will be paid by H.O.
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* Confidential information has been omitted and filed separately with the
Securities and Exchange Commission.
11
ADDENDUM B
Performance Standards
Effective January 1, 2002, the following performance standards shall apply to
H0-CIMS software that is operated in a Risc 6000/AIX (or later generation
product) environment that is certified by H.0.
Section 1. System Performance.
(a) The system will process CDR ratings and ball calculations at an
average rate of not less than 20,000 Active Users per hour per xxxx
cycle. If there are more than three impacted xxxx cycles during any
45-day period that do not meet the foregoing standard, then the
license and maintenance fee for the month during which the fourth
(or more) impacted xxxx cycles occur will be reduced by an amount
equal to (i) * of the average license and maintenance fee per
Active User for such month, multiplied by (ii) the number of Active
Users in the fourth and any other additional impacted cycle during
such month.
(b) System availability will be defined as the time that online users
have access to the system. The system will be available a minimum of
18 hours a day, 7 days a week with the exception of system
maintenance time. If there are more than three occasions where this
system availability standard is not met, then the license and
maintenance fee for such month will be reduced by (i) * of the
average license and maintenance fee per Active User for such month,
multiplied by (ii) the number of Active Users processed on the
affected server.
Section 2. System Maintenance.
(a) System maintenance windows will be available to H.O. each Saturday
beginning after the affected markets have closed retail operations
and the daily processes have been completed, and lasting until 8:00
a.m. Sunday morning in the time zone of the affected markets. This
window will not be used on days with scheduled xxxx runs. However,
if reasonably required, Customer will work to allow maintenance at
an alternative time.
(b) Database maintenance will be accomplished monthly on or about the
last calendar day of each month after the affected markets have
closed retail operations and the daily processes have been
completed. This maintenance will include the following events:
- Reorgs
- Data archiving
- System reboots
- Other events to be agreed by H.O. and Xxxxxx
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* Confidential information has been omitted and filed separately with the
Securities and Exchange Commission.
12
(c) New code development will be on Sundays and Thursdays, beginning
after the affected markets have closed retail operations and the
daily processes have been accomplished and in coordination with
Customer's user acceptance testing approval. System critical fixes
will be delivered for immediate release to production with the
approval of the manager of Revenue Assurance or the manager of
Customer Applications at Customer.
(d) Within 30 days of execution of this License Agreement, the parties
will agree upon a SLA regarding the time frame in which trackers are
identified and resolved.
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ADDENDUM C
XXXXXX MASTER SCHEDULE
PROJECT TARGET COMPLETION DATE
seedSUITE GUI - POS Phase 2 UAT 01/31/02
speedSUITE GUI - CARE Phase 1 UAT 01/31/02
AIX environment sys025 10/30/2001
Single Image available for UAT 10/4/2001
Single Image implementation 40/48* 10/9/01*
Single Image implementation 40/48/61/76* 10/17/01*
Single Image implementation 40/48/61/76/25/58* 10/30/01*
AIX Backup Server Implementation 1/31/02
AIX environment sys058 2/9/02
Merge/Port sys076 to sys061 3/9/02
AIX Oracle database for consolidated reporting 3/31/02
Merge/Port sys048 to sys040 on AIX 5/4/02
AIX unified logical database 9/30/02
SWITCH PROJECTS
3 Additional HLR switches November 2001
CDPD data workorder 3/31/2002
OTAF 4 weeks after SMSC configured
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