A procurement agreement, sometimes called a procurement contract, or a purchase contract, is a legally binding contract between the buyers and sellers of goods. These contracts are used across virtually all industries and businesses. Companies use procurement agreements to purchase materials, supplies, or services for their business. Procurement agreements protect both the buyer and the seller throughout the business relationship and are usually formatted as either a fixed-price contract, a cost-reimbursable contract, or a time and materials contract. Choosing the correct type of procurement agreement and negotiating favorable terms will be essential in the success of the job or project.
Below is a list of common sections included in Procurement Agreements. These sections are linked to the below sample agreement for you to explore.
Please note that the representations and warranties of each party set forth in the Master Procurement Agreement have been made solely for the benefit of the other party. You should not rely on such representations and warranties, which (i) have been qualified in some circumstances by confidential disclosures to the other party in connection with the agreement, (ii) were made only as of the date of the Master Procurement Agreement or such other date as is specified in the agreement, and (iii) may have been included in the agreement for the purpose of allocating risk between the parties rather than establishing matters as facts.
MASTER PROCUREMENT AGREEMENT
M ETRO PCS W IRELESS , I NC .
September 10, 2009
*** Where this marking appears throughout this Exhibit 10.1,
information has been omitted pursuant to a request for
confidential treatment and such information has been filed
with the Securities and Exchange Commission separately.
TABLE OF CONTENTS
SCHEDULES, EXHIBITS AND ATTACHMENTS
MASTER PROCUREMENT AGREEMENT
This Master Procurement Agreement (“ Agreement ”) is made and entered into this 10 th day of September, 2009 (the “ Effective Date ”), by and between MetroPCS Wireless, Inc., a Delaware corporation with its principal place of business at 2250 Lakeside Boulevard, Richardson, Texas 75082 (including its permitted successors and assigns, “ MetroPCS ”), and Ericsson Inc., a Delaware corporation with its principal place of business at 6300 Legacy Drive, Plano, Texas 75024 (including its permitted successors and assigns, “ Supplier ”).
WHEREAS , MetroPCS offers an integrated set of wireless telecommunications products and services to its customers.
WHEREAS , MetroPCS wants to purchase from Supplier, and Supplier wants to supply to MetroPCS, the Products and Services described herein, all in accordance with the terms and conditions set forth in this Agreement.
NOW, THEREFORE , in consideration of the mutual covenants and agreements hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, MetroPCS and Supplier, intending to be legally bound, hereby agree to the foregoing and as follows:
ARTICLE 1 — GENERAL
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1.1.1 General . This Agreement represents the terms and conditions under which Supplier and its Affiliates shall provide Products and Services to MetroPCS in the Territory pursuant to Purchase Orders that are signed and issued by an authorized representative of MetroPCS, an Affiliate of MetroPCS or a Designated Entity.
1.1.2 Product Addenda . For Products and Services of the same type, the parties have or will develop a product addendum (each, a “ Product Addendum ”) that set forth, among other things, complete pricing information for such Products and Services, all as further described in Section 2.1 . MetroPCS shall have the right to acquire Products and Services that are the subject of a Product Addendum by initiating a Purchase Order as provided in Section 2.3 . All Product Addenda will be attached to and incorporated into this Agreement as part of Exhibit 1 .
1.1.3 Statements of Work . For Products and Services that are unique or otherwise are not of the type that would be included in a Product Addendum including, by way of example, Custom Programming Services, MetroPCS shall have the right to acquire such Products and Services from Supplier pursuant to a Statement of Work developed in accordance with the terms set forth in Section 2.2 . All Statements of Work will be attached to and incorporated into this Agreement as part of Exhibit 1 .
1.2 Special Terms Relating to Growth and Restructurings .
1.2.1 MetroPCS Growth and Restructurings . If MetroPCS acquires a new Affiliate or Designated Entity following the Effective Date and such new Affiliate or Designated Entity is a party to one (1) or more agreements with Supplier, MetroPCS and/or such Affiliate and/or such Designated Entity shall have the right, upon written notice to Supplier, to *** any and all existing agreements between such Affiliate or Designated Entity and Supplier ( “Pre-Existing MetroPCS Affiliate Agreement” ) *** and all products, software and services acquired or licensed by such Affiliate or Designated Entity from Supplier pursuant to such agreements ***. Notwithstanding the foregoing, if such Pre-Existing MetroPCS Affiliate Agreements include purchase commitments ***. Notwithstanding the foregoing, if such Pre-Existing MetroPCS Affiliate Agreement covers products, software and services for which a Procurement Document is not then in effect under this Agreement, then the Supplier products, software and services acquired by such MetroPCS Affiliate or Designated Entity shall *** until ***.
1.2.2 Supplier Growth and Restructuring . If Supplier acquires a new Affiliate following the Effective Date and such new Affiliate is a party to one (1) or more agreements with MetroPCS, a MetroPCS Affiliate or a Designated Entity (collectively “MetroPCS” for purposes of this Section 1.2.2 ) (such agreements “ Pre-Existing Supplier Affiliate Agreements ” ), the products and services obtained and to be obtained by MetroPCS pursuant to the Pre-Existing Supplier Affiliate Agreements shall be subject in all respects to the terms of Sections *** of this Agreement ***. At the request of MetroPCS, Supplier shall *** for such Pre-Existing Supplier Affiliate Agreements *** and ***. If Supplier integrates and/or migrates support and maintenance services for such products and services within Supplier’s support and maintenance structure, Supplier shall provide Support and Maintenance Services for such products and services ***. Upon MetroPCS’ request, Supplier shall *** of a Pre-Existing Supplier Affiliate Agreements based on MetroPCS’ business needs.
1.3 Benefits of Agreement . All rights and benefits granted hereunder to MetroPCS may be exercised and enjoyed by any MetroPCS Affiliate or Designated Entity, and MetroPCS shall have the right to sell, resell, transfer, assign, lease and/or otherwise make available all Products and Services purchased under this Agreement to its Affiliates and/or Designated Entities; provided , however , that MetroPCS shall not assign, transfer or lease Software licenses to MetroPCS Affiliates or Designated Entities that are direct Supplier Competitors without Supplier’s written consent, which consent shall not be unreasonably withheld, conditioned or delayed. References to MetroPCS and to Supplier in this Agreement shall include the parties’ respective Affiliates (and, in MetroPCS’ case, Designated Entities), as applicable and where the context so requires. MetroPCS and Supplier shall be responsible for ensuring each of their respective Affiliates’ (and, in MetroPCS’ case, Designated Entities’) compliance with their obligations hereunder including, without limitation, their compliance with the confidentiality, licensing and payment obligations under this Agreement. For purposes of determining the purchases made by MetroPCS under any volume commitments and discounts (if any) available under this Agreement that are based on volume, quantity or other measurement factors, the total volume of purchases made by MetroPCS, its *** Affiliates and Designated Entities pursuant to this Agreement shall be considered to determine whether the applicable volume, quantity or other measurement factor has been achieved.
1.4 Non-Exclusive Relationship/No Volume Commitment . This Agreement establishes a non-exclusive relationship between the parties and does not grant Supplier an exclusive privilege to furnish to MetroPCS any or all of the Products and Services that MetroPCS may require, need, or desire. MetroPCS expressly reserves the right to contract with others for the purchase of products and services comparable or identical to the Products and Services that are the subject of this Agreement. Additionally, Supplier expressly reserves the right to contract with others to sell products and services comparable or identical to the Products and Services that are the subject of this Agreement. Notwithstanding anything contained herein to the contrary, MetroPCS shall not be obligated to purchase any Products and/or Services exclusively from Supplier. Except to the extent expressly provided otherwise in a Product Addendum *** do not require MetroPCS to ***, and MetroPCS shall not be obligated ***.
1.5 Definitions . Capitalized terms used herein shall have the meanings ascribed to them in this Agreement, including in any Procurement Document and/or in Schedule 1.5 . Additional definitions may be set forth in the applicable Procurement Document.
1.6 Conflicts in Interpretation . The following order of precedence shall be followed in resolving any inconsistencies between the terms of this Agreement and the terms of any Schedules, Exhibits, Attachments, Addenda and other documents attached hereto:
(a) first, the terms contained in the body of this Agreement, except where a Procurement Document specifically identifies a Section(s) of this Agreement and expressly states that a conflicting term in such Procurement Document will take precedence;
(b) second, the terms of the Schedules, Exhibits, Attachments and Addenda to this Agreement (excluding Procurement Documents attached as part of any Schedule, Exhibit, Attachment or Addendum which, for purposes of precedent, shall be treated as set forth in subsection (c) below), except where a Procurement Document specifically identifies a term in a Schedule, Exhibit, Attachment or Addendum to this Agreement and expressly states that a conflicting term in such Procurement Document will take precedence, provided that no order of precedence shall be applied among such Schedules, Exhibits, Attachments and Addenda;
(c) third, the terms of any Procurement Document, including all Schedules, Exhibits, Attachments and Addenda thereto (but excluding any Supplier responses to a MetroPCS request for proposal or request for information, which, for purposes of precedent, shall be treated as set forth in subsection (e) below), except where a Procurement Document specifically identifies a Section(s) of this Agreement and expressly states that a conflicting term in such Procurement Document will take precedence (in which case the terms of the foregoing subsection (a) shall apply), provided that no order of precedence shall be applied among such Procurement Documents;
(d) fourth, the terms of any Purchase Order signed and issued by MetroPCS, a MetroPCS Affiliate or a Designated Entity and accepted by Supplier, including all Schedules, Exhibits, Attachments and Addenda thereto;
(e) fifth, Supplier’s response, if any, to a MetroPCS, MetroPCS Affiliate or Designated Entity request for proposal or request for information, which response shall be incorporated as part of the applicable Procurement Document by this reference unless specified otherwise in the applicable Procurement Document; and
(f) sixth, Documentation.
Any attempt to alter or amend the terms and conditions contained in the Agreement through conflicting or inconsistent terms in a Procurement Document, Schedule, Exhibit, Attachment, Addenda or any other document shall be void and of no force and effect unless such conflicting or inconsistent terms specifically are identified as an amendment to this Agreement and such amendment is signed by an authorized representative of MetroPCS as provided in Section 15.16 , it being the parties’ express understanding that any such alteration or amendment shall require a formal amendment to this Agreement.
ARTICLE 2 — ACQUISITION AND PROVISIONING PROCESS
2.1 Product Addenda . All Product Addenda shall be developed by the parties in accordance with the terms set forth in this Section 2.1 and shall include, as applicable, the terms described in Schedule 2.2 .
2.1.1 Product Addenda for Wireless Products . Attached to the Agreement as part of Exhibit 1 is Product Addendum One (Wireless Products) that sets forth terms and conditions that are applicable to MetroPCS’ purchase of Wireless Products from Supplier.
2.1.2 Development of Product Addenda . MetroPCS and Supplier may mutually agree in writing following the Effective Date to develop and attach to this Agreement as part of Exhibit 1 one or more Product Addenda. Each Product Addendum shall incorporate by reference the terms and conditions of this Agreement and shall contain contract terms and conditions that are specific to the various types of Products and Services that MetroPCS might acquire from Supplier under that Product Addendum, including terms and conditions that are legally required based on the countries in which such Products will be sold or installed and/or Services performed, including, without limitation, each of the following, as applicable:
(a) complete pricing information for the Product(s) including, without limitation, all acquisition and/or licensing costs associated with Software, Equipment, Support and Maintenance Services, Enhancements, anticipated or projected Equipment upgrade charges, and the like;
(b) a general Certification Test Plan and Installation Test Plan for the Products (developed in accordance with the terms set forth in Article 7 );
(c) a general Implementation Workplan for the Products;
(d) a list of standard Interfaces for the Products;
(e) with respect to Products that will be installed by Supplier, the site-readiness specifications for such Products;
(f) the standard order-to-delivery interval for the Products; and
(g) subject to the terms set forth in Schedule 8.5 , special and/or additional warranties.
Each future Product Addendum must be signed by a Vice President or higher-level corporate officer of MetroPCS, and by a duly authorized Supplier representative, in order to be effective. Neither party shall be entitled to rely upon or to enforce the terms of any Product Addendum that is not authorized as provided in the preceding sentence. The terms and conditions of this Agreement and those set forth in the applicable Product Addendum shall apply to MetroPCS’ acquisition of the applicable Products regardless of whether such terms and conditions are expressly incorporated by reference in the applicable MetroPCS Purchase Order.
2.2 Statements of Work . Any Products and Services that are not within the scope of a specific Product Addendum will be acquired by MetroPCS in accordance with a Statement of Work. All Statements of Work shall include, as applicable, the terms described in Schedule 2.2 that are appropriate to the Product(s) and/or Services being acquired thereunder.
2.3 Purchase Orders . MetroPCS shall have no obligation to purchase Products and/or Services from Supplier, including pursuant to a signed Procurement Document, unless and until a Purchase Order that references this Agreement and the applicable Procurement Document is: (a) signed and issued by an authorized representative of MetroPCS; and (b) accepted by Supplier. Within *** days (excluding Saturdays, Sundays and Supplier Holidays) of Supplier’s receipt of a Purchase Order, Supplier shall confirm such receipt to MetroPCS in writing. Supplier shall accept or reject such Purchase Order within *** days following Supplier’s receipt of the Purchase Order. If Supplier has acknowledged receipt of a Purchase Order but fails to accept or reject such Purchase Order within the applicable *** day period, such Purchase Order shall be deemed accepted by Supplier. Receipt for purposes of this Section may be accomplished by e-mail transmission. If MetroPCS desire an expedited response to the applicable Purchase Order, MetroPCS shall contact the Supplier Project Manager who shall exercise commercially reasonable efforts to provide Supplier’s response within the requested time frame. All Products shall be delivered to the site designated in the applicable Purchase Order. With respect to all Products, Supplier will ship the release/version level of such Product as noted by MetroPCS on its Purchase Order, and Supplier shall not substitute a different release/version of such Products without MetroPCS’ prior written consent.
2.4 Delivery of Products .
2.4.1 General . Supplier shall cause the applicable Products to be delivered to the MetroPCS-designated installation location on the date specified in the applicable Purchase Order, provided such date is consistent with the order-to-delivery intervals set forth in the applicable Procurement Document. *** shall pay all costs of warehousing (except as provided in Section 2.4.2 ), insurance and any reasonable additional costs associated with delivery of the Product(s); provided , however , if the applicable MetroPCS-designated
installation location is not available on the date specified for delivery (for non-Supplier installed Products) or installation (for Supplier installed Products) in the applicable Purchase Order, *** for delivery of the Product(s) to the extent directly related to *** failure to make the designated installation location available on the applicable date. MetroPCS shall pay the reasonable, out-of-pocket costs of freight.
2.4.2 Product Delivery Delays . Upon *** days written notice to Supplier prior to the scheduled shipping date, MetroPCS may suspend or reschedule delivery of Products for a period that does not exceed *** days beyond the date originally scheduled for the delivery thereof ***. If any MetroPCS-requested delivery suspension continues for *** days beyond the originally scheduled delivery date for a Product: (a) MetroPCS shall either: (i) cancel the order, in which case the terms of Section 2.5 shall apply; or (ii) authorize Supplier to deliver the applicable Products to MetroPCS; or (b) the parties may agree to extend such *** day period ***, provided , however , that in such case *** shall be responsible for the *** during such extended delay period.
2.5 Product Delivery Cancellations . Unless expressly provided otherwise in a Procurement Document, *** for delivery cancellations. Each Procurement Document may specify the terms that apply to delivery cancellations, if any, for the Products covered by such Procurement Document.
ARTICLE 3 — SOFTWARE AND EQUIPMENT
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3.1.1 Grant of License . Supplier grants to MetroPCS a non-exclusive, perpetual, irrevocable (except as provided in Section 11.3(c) ), worldwide, ***, ***, fully paid, ***, non-transferable (except as set forth in Sections 3.1 , 3.4 , 15.6 or in the applicable Procurement Document) license: (a) for MetroPCS and its Authorized Users to use the Software and Documentation; and (b) for MetroPCS to copy the Software and Documentation as required for archival, backup, testing, training, development (for MetroPCS’ incorporation into MetroPCS’ network or business or operational support systems) and other, similar purposes, ***. Notwithstanding the foregoing restriction on the transferability of Software licenses, in connection with a sale, transfer, contribution or pledge as security of any Products to a Third Party, MetroPCS shall have the right to assign its Software license rights for Software included in such Products to such Third Party ***; provided , however , that, except for the sale, transfer or contribution of all or substantially all of the assets of the company or pledge of such Products, MetroPCS will provide Supplier advance notice of any such sale or transfer of Products to a Third Party ***.
3.1.2 Optional Software Features . Software licensed by Supplier to MetroPCS under this Agreement may contain optional features that are separately licensed and priced. Optional features will not be activated by MetroPCS without authorization from Supplier and MetroPCS’ payment of the applicable license fees, if any. If, in spite of MetroPCS’ commercially reasonable efforts to comply with the foregoing restriction, such features are activated, MetroPCS promptly shall notify Supplier that such features were activated. If Supplier identifies activation of any such features, Supplier promptly shall notify MetroPCS of the activation of such features. Upon any such notice by one party to the other party, at its option, MetroPCS shall either discontinue its use of such features or, if otherwise a chargeable item to MetroPCS, pay to Supplier *** for the activated features (subject to ***).
3.1.3 Ownership Rights Reserved . Except as expressly granted hereunder, no other rights, licenses, title or ownership of Intellectual Property Rights to the Software and Documentation or any copy, translation, compilation or other derivative work are transferred or granted to MetroPCS hereunder, and title and ownership to such Software and Documentation shall remain with Supplier. Promptly following MetroPCS’ request, Supplier shall provide to MetroPCS any information that is reasonably necessary to enable MetroPCS to create interoperability between the Software licensed hereunder and other products, software or systems. MetroPCS shall not disassemble, reverse compile, reverse engineer or otherwise translate the Software licensed hereunder; provided , however , that MetroPCS may reverse engineer or decompile the Software: (a) to the extent permitted by applicable Laws, if Supplier fails to provide to MetroPCS promptly following MetroPCS’ request any information that is reasonably necessary to enable MetroPCS to create interoperability between the Software licensed hereunder and other products, software or systems provided that any use by MetroPCS shall be restricted to the uses permitted under Section 3.1.1; and (b) for any other purposes to which Supplier consents
3.1.4 Additional Licensing Terms . The parties may agree in a Procurement Document to additional product-specific license terms.
3.2 Interfaces . Supplier acknowledges that MetroPCS is working with a number of Third Parties in the development, maintenance and support of MetroPCS’ various systems and that MetroPCS’ use of the Products will involve the use and/or development of one or more Interfaces between such products, software and systems and the Products. Accordingly, Supplier shall: (a) make available for licensing by MetroPCS ***, any 3GPP Standardized Product Interfaces that are owned by Supplier or any of its Affiliates; and (b) ***, from and after the Effective Date, maintain and disclose publicly detailed 3GPP Standardized Interface Specifications for the Products, so that Third Parties will be able to create Interfaces between the Products and such Third Parties’ products, software and systems. If there is an option in the 3GPP Standardized Interface Specifications with regard to implementation of the 3GPP Standardized Interface Specifications, Supplier shall *** disclose which option has been selected. In addition, from and after the Effective Date, ***, Supplier shall make available to MetroPCS promptly following MetroPCS’ request, detailed Interface Specifications for the Products that are in addition to the 3GPP Standardized Interface Specifications so that MetroPCS will be able to create Interfaces between the Products and other products, software and systems, and MetroPCS may disclose such detailed Interface Specifications to Third Parties pursuant to nondisclosure agreements entered into with MetroPCS solely for the purpose of developing Interfaces between the Products and other MetroPCS and Third Party products, software, or systems. If MetroPCS wants Supplier to develop an Interface, such Interface development shall constitute Custom Programming and shall be developed in accordance with the terms set forth in Section 3.3
3.3 Custom Programming . MetroPCS shall have the right to request that Supplier develop Custom Programming including, without limitation, Interfaces. Within *** days following receipt of such request, Supplier shall notify MetroPCS in writing as to whether it will undertake such Custom Programming. If Supplier agrees to undertake such Custom Programming, Supplier shall within *** days
following delivery of its initial notice to MetroPCS prepare and submit to MetroPCS a written response to MetroPCS’ Custom Programming request that includes: (a) the items required to be included in a Change Response, as described in Section 6.4 ; and (b) a description of the functionality, interoperability and performance characteristics of the requested Custom Programming. If MetroPCS issues a Purchase Order for the Custom Programming, Supplier shall prepare and submit to MetroPCS a Statement of Work in accordance with the requirements set forth in Section 2.2 . If the parties execute a Statement of Work, and MetroPCS issues a Purchase Order for such Custom Programming, Supplier shall perform the Custom Programming project in accordance with the terms of such Statement of Work and this Agreement, including, without limitation, Section 9.8 . MetroPCS shall have the right to terminate any Custom Programming project upon *** days written notice to Supplier, in which case: (a) Supplier promptly shall discontinue the terminated Custom Programming Services; (b) MetroPCS shall pay to Supplier ***; and (c) Supplier shall provide to MetroPCS any intermediate and/or partial versions of such Custom Programming and any related documentation resulting from such Custom Programming project.
3.4 Transfer Rights . Subject to network usage or other limitations that may be set forth in the applicable Procurement Document, MetroPCS shall have the right to transfer the Software to a different system and/or to substitute, switch, exchange or re-platform the Products on which the Software operates for ***, provided that, in any such case, Supplier supports the operating system and/or Products to which MetroPCS proposes to transfer the Software; provided , however , that no such transfer, substitution, switch, exchange or re-platform shall result in more copies of the Software operating than in a one-to-one Software license-to-platform correlation. Provided MetroPCS follows Supplier’s instructions contained in the Documentation or otherwise provided through training or Supplier’s Support and Maintenance Services, Supplier shall provide assistance to MetroPCS, ***, to address and/or correct any Product migration problems encountered in connection with such transfer; otherwise, such assistance shall be provided at the ***. If MetroPCS engages Supplier to perform Services in connection with any such transfer, substitution, switching, exchanging or re-platforming, such Services shall be provided at the ***.
3.5.1 Equipment and Equipment Configuration . Each Procurement Document will include a list of the Equipment components that comprise a Product configuration available to be purchased by MetroPCS under such Procurement Document and a list of Third Party equipment components that MetroPCS is required to supply in connection with such Product configuration, if any. MetroPCS retains the right to purchase Equipment directly from Third Party vendors. All Equipment purchased under this Agreement that is manufactured and/or supplied by Third Parties shall include the original manufacturer’s warranty.
3.5.2 Title, Risk of Loss . Upon delivery (or upon Acceptance for Products purchased with installation services) of any Equipment sold by Supplier to MetroPCS hereunder and payment by MetroPCS for such Equipment, title shall transfer and promptly following MetroPCS’ request, Supplier shall provide to MetroPCS a bill of sale transferring good and marketable title to such Equipment to MetroPCS free of any and all liens or encumbrances. Supplier shall represent and warrant in such bill of sale that the
Equipment and any components thereof are entirely new and that supplier has and is transferring good and marketable title free of any liens or encumbrances. Risk of damage or loss to the Equipment shall pass to MetroPCS upon delivery (or upon Acceptance for Products purchased with installation services) of the Equipment to the installation or such other location specified in the applicable MetroPCS Purchase Order; provided , however , that: (a) Supplier shall remain responsible for damage or loss to Equipment caused by its Personnel; and (b) if MetroPCS specifically requests delivery of Equipment to a Third Party value-added shipping agent, risk of loss or damage shall pass to MetroPCS upon delivery to the MetroPCS-designated Third Party value-added shipping agent.
3.5.3 Substitutions . Supplier shall not substitute any item of Equipment (excluding upgrades or updates to component parts that do not affect the Form, Fit, Function or performance characteristics of the Equipment and which do not require MetroPCS to upgrade or update existing Products) for another item of Equipment without MetroPCS’ prior written consent. Supplier may be permitted to substitute temporarily an item of Equipment that does not meet the criteria set forth above if: (a) any ordered item of Equipment is unavailable to meet the delivery requirements of MetroPCS as specified in the applicable Procurement Document or Purchase Order; (b) Supplier provides prior written notice of the substitution to MetroPCS; (c) Supplier does not charge MetroPCS *** for the replacement Equipment than for the substituted Equipment; and (d) MetroPCS consents in writing to the proposed substitution, which writing must be signed by the MetroPCS Project Manager or higher-level signatory of MetroPCS. If Supplier substitutes an item of Equipment as described herein, the cost of installation and removal of such substitute Equipment shall be at ***. Upon receipt of written notice from MetroPCS, Supplier shall remove such substitute Equipment. Title and risk of loss as to any temporarily substituted Equipment shall at all times remain with Supplier, provided that if MetroPCS elects to accept such items, Supplier may invoice MetroPCS for (and MetroPCS shall pay in accordance with Section 10.1 for) such Equipment and title shall pass to MetroPCS upon Acceptance.
3.5.4 Replacement Parts for Equipment and Related Firmware .
3.5.4.1 Availability . For a *** period of *** following MetroPCS’ receipt from Supplier of any notice of Product discontinuance for the applicable Product, which notice of Product discontinuance shall be provided in writing not less than *** year prior to the date of Product discontinuance, Supplier shall make available for purchase by MetroPCS functionally equivalent or better replacement parts for all Equipment and related firmware (meaning that such replacement parts shall be equivalent or better in Form, Fit, Function, capacity and performance) to maintain the Equipment and related firmware in conformance at the time supplied with the applicable Documentation, Supplier Specifications, Performance Standards and Regulatory Requirements. On-site options for spare and replacement parts, if any, shall be agreed to by the parties pursuant to a Procurement Document. As to all matters related to the provision of spare and replacement parts (including, but not limited to, the amount of time it takes Supplier to provide MetroPCS with such spare and replacement parts), ***.
3.5.4.2 Third Party Parts . Notwithstanding the terms of Section 3.5.4.1 , MetroPCS shall not be obligated to purchase replacement parts from Supplier, and MetroPCS shall have the right to procure replacement parts from any source. If MetroPCS
procures replacement parts from sources other than Supplier for reasons other than Supplier’s failure to make such replacement parts available, then at MetroPCS’ request and expense, Supplier shall submit such replacement parts to the testing and certification process described in Section 3.6 . If MetroPCS is required to procure replacement parts from a source other than Supplier due to Supplier’s failure to make replacement parts available as required by this Section, then at MetroPCS’ request but *** Supplier shall submit such replacement parts to the testing and certification process described in Section 3.6 . If MetroPCS-supplied replacement parts become certified as Compatible Products, MetroPCS shall have the right to use such replacement parts as part of any Products without affecting the warranties set forth in Article 9 or the applicable Procurement Document.
3.5.4.3 Equipment Repair and/or Replacement . All Equipment and related firmware to be repaired or replaced shall be shipped at Supplier’s expense and risk of loss during the applicable Warranty Period and at MetroPCS’ expense and risk of loss thereafter to a location designated by Supplier, and repaired or replaced Equipment and related firmware shall be returned by Supplier to MetroPCS at Supplier’s expense and risk of loss. With respect to Supplier Products that are not readily returnable for repair, Supplier shall repair or replace such Products at MetroPCS’ site or such other location designated by MetroPCS, provided that MetroPCS shall make such Products accessible to Supplier without charge. During the applicable Warranty Period, Supplier shall be responsible for all costs related to such repair or replacement, and following completion of such repair or replacement, Supplier shall restore the site to the condition it was in prior to such repair or replacement.
3.5.4.4 Reporting . Supplier shall provide to MetroPCS on a quarterly basis reports, ***, specifying, at a minimum, the Equipment and related firmware replaced by Supplier during the preceding quarter, the date and location of replacement and the nature of the Product Defects causing such replacement. Such reports shall be delivered within *** of the completion of each quarter.
3.5.5 Discontinuation of Products . Supplier shall notify MetroPCS in writing of the discontinuation of any Products at least *** year prior to such discontinuation. If Supplier fails to provide MetroPCS with such discontinuation notice, Supplier shall provide MetroPCS with any replacement parts for such discontinued Products ***. Nothing contained herein shall be construed to diminish Supplier’s Support and Maintenance Services obligations set forth in Article 8 nor Supplier’s obligations under Section 3.5.4 .
3.5.6 Site Preparation . The terms of this Section shall apply only when Supplier will be performing installation Services requested by MetroPCS. Each Procurement Document shall set forth the specifications and guidelines that Supplier prescribes for proper installation and operation of the Products. In consultation with Supplier, MetroPCS shall prepare the installation location in accordance with such specifications and guidelines. Upon written notice from MetroPCS that such requirements have been fulfilled, Supplier shall inspect the installation site and either acknowledge in writing that the installation site is suitable for effective installation and operation of the Products, or advise MetroPCS in writing that the installation site does not materially comply with
such requirements and the reasons for such material noncompliance. The suitability of MetroPCS’ site preparation shall be deemed properly prepared if Supplier has failed to submit a written statement of noncompliance to MetroPCS before the earlier of: (a) *** following the date of Supplier’s site inspection; and (b) *** following MetroPCS’ notice that the installation site requirements have been fulfilled, provided that MetroPCS shall not give notice that the installation site requirements have been fulfilled more than *** prior to the commencement of installation activities with respect to the applicable Product, and Supplier shall not be excused for any delay in achieving any Critical Milestone if the cause of such delay is based upon Supplier’s failure to notify MetroPCS of any such noncompliance.
3.6 Compatible Products . Supplier shall develop and maintain, and promptly shall deliver to MetroPCS from time to time, a then-current list of all Third Party hardware and software components that are compatible with and may be used by MetroPCS to operate with the Products without adversely affecting the representations, warranties and covenants contained in Article 9 (such Third Party hardware and software components, the “ Compatible Products ”). If MetroPCS wants Supplier to certify any MetroPCS-supplied product (a “ MetroPCS-Supplied Product ”) as a Compatible Product (including, without limitation, Third Party replacement parts as described in Section 3.5.4 ), MetroPCS shall submit such MetroPCS-Supplied Product to Supplier for testing and certification, and Supplier promptly thereafter shall perform such testing and certification ***. Supplier shall not unreasonably withhold its certification of any MetroPCS-Supplied Product as a Compatible Product.
3.7.1 General . Supplier acknowledges that the rights granted to MetroPCS under or pursuant to this Section 3.7 are, and shall otherwise be deemed to be, ***.
3.8 Purchase Orders and Shipment Reports . Upon MetroPCS’ request, Supplier shall furnish to MetroPCS, in a form reasonably agreeable to MetroPCS, monthly Purchase Order and shipment reports and/or quarterly invoice summary reports.
3.9 Third Party IP Rights . Supplier agrees that the Products and Services do not infringe upon or constitute a misappropriation of any Third Party IP Right.
ARTICLE 4 — SERVICES
4.1 General . Supplier shall perform Services in accordance with the terms set forth in this Agreement and in the applicable Procurement Document.
4.2 Right to Access; Identification Credentials; Facility Rules .
4.2.1 Right of Access . Upon reasonable prior written notice, each party shall provide to the other party reasonable physical access to its facilities in connection with the performance of such party’s obligations hereunder. Access to a party’s facilities shall be subject to such party’s security rules, policies and procedures. No charge shall be made for such access. If, in connection with providing Services hereunder, Supplier requires access to MetroPCS’ facilities, Supplier shall comply with any MetroPCS requirements with respect to facility security and drug screening tests. Supplier shall be responsible for the cleanup, removal, and proper disposal in accordance with applicable Laws and generally accepted industry practices of all Hazardous Materials brought to MetroPCS’ facilities by Supplier and not contemplated to remain at the facilities after such completion of Service.
4.2.2 Identification Credentials . Each party shall have the right to require the other party’s Personnel and representatives to exhibit identification credentials issued by such party in order to exercise any right of access under this Agreement.
4.2.3 Facility Rules . All Personnel and representatives of a party shall, while on the other party’s premises, comply with all rules and regulations that have been provided to such party. Supplier shall acquaint itself with the conditions governing the delivery, receipt and storage of Products at the installation site so that Supplier’s installation activities will not unduly interfere with MetroPCS’ day-to-day operations at the installation site. Supplier shall not stop, delay or interfere with MetroPCS’ day-to-day operations without the prior written consent of an authorized MetroPCS representative. Supplier shall provide and maintain sufficient covering to protect MetroPCS’ equipment, furniture and other items from Supplier’s installation activities.
4.2.4 Background Checks . If elected by MetroPCS, Supplier shall conduct a background check on Supplier Personnel who will provide Services at MetroPCS facilities or who may have access to MetroPCS’ systems, equipment or networks and review the results of the background check of each such Person to verify that the Person meets Supplier’s standards for employment before presenting the results of the background check to MetroPCS and requesting that MetroPCS grant to any such person access to any MetroPCS facility. Such background check shall be in the form generally used by Supplier in its initial hiring of employees or contracting for contractors or, as applicable, during the employment-screening process but must, at a minimum, have been performed within the preceding *** period and detail, subject to applicable Laws, ***. In addition to the foregoing, MetroPCS reserves the right to require Supplier to augment its background check and screening procedures to comply with any MetroPCS policies adopted from time-to-time by MetroPCS as applied to its contractors generally; provided , however , that MetroPCS shall provide Supplier with advance written notice of any request to augment the background checks performed by Supplier. Supplier may seek reimbursement from MetroPCS for the *** incurred by Supplier in performing such augmented background check and screening procedures.
4.3 Compliance With Local Employment/Labor Laws . Supplier shall be responsible for compliance with all applicable Laws respecting Supplier Personnel including, without limitation, employment of labor, hours of labor, working conditions, payment of wages and payment of taxes, unemployment, social security and other payroll taxes, including obtaining applicable contributions from such Personnel when so required by Law.
4.4 License of Know-How . At MetroPCS’ request and upon payment of ***, Supplier shall provide to MetroPCS training on and a license to Know-How regarding a Product or Enhancement for uses consistent with the terms of this Agreement. In connection therewith, Supplier shall train MetroPCS-identified Personnel so that they can become self-reliant with respect to the day-to-day operation and support and maintenance of the Products. Supplier shall provide the MetroPCS-identified Personnel with sufficient technical assistance to train MetroPCS Personnel in the use of Know-How with respect to the functions, features, operation, support and maintenance of the Products and to license to MetroPCS any tools, utilities and other software necessary or appropriate for MetroPCS to become self-reliant with respect to the functions, features and operation of the Products. In licensing Know-How, MetroPCS-identified Personnel may attend Supplier’s training programs that relate to the Products. Supplier’s license of Know-How shall include information and/or programs, tools and other materials regarding or relating to the items identified in Schedule 4.4 , provided that, with respect to a particular request: (a) Supplier generally would make such items available to a requesting customer; or (b) if Supplier generally would not make any of such items available to a requesting customer, Supplier agrees to reasonably consider such request in good faith. As required or necessary, but not less frequently than quarterly, Supplier shall provide to MetroPCS any and all updated, changed or revised policies, practices, procedures, processes and/or techniques with respect to any Know-How licensed hereunder.
ARTICLE 5 — PROJECT MANAGEMENT AND PERSONNEL
How ContractsCounsel Works Hiring a lawyer on ContractsCounsel is easy, transparent and affordable. 1. Post a Free Project Complete our 4-step process to provide info on what you need done. 2. Get Bids to Review Receive flat-fee bids from lawyers in our marketplace to compare. 3. Start Your Project Securely pay to start working with the lawyer you select.5.1 Covenant of Cooperation . Supplier acknowledges that MetroPCS is now and will continue during the Term of the Agreement to work directly and indirectly with both Supplier and a number of Third Parties to develop, install, maintain and support MetroPCS’ telecommunications products, systems and services. Having acknowledged the foregoing, Supplier agrees to cooperate fully with MetroPCS, its Affiliates, Designated Entities and all MetroPCS-designated Third Parties, which cooperation Supplier acknowledges may involve the disclosure of Supplier Confidential Information to MetroPCS, its Affiliates, Designated Entities and MetroPCS-designated Third Parties, provided that: (a) Supplier shall not be required to disclose any information whose disclosure is prohibited by licensing or other similar contractual limitations to which Supplier is bound; and (b) disclosures of Supplier Confidential Information to Third Parties is acknowledged by MetroPCS to be subject to Section 12.2.2(b) of the Agreement.
5.2 Supplier Personnel . Supplier shall provide sufficient qualified Personnel with appropriate experience to perform Supplier’s obligations hereunder in accordance with the Services warranty set forth in Section 9.8 . Without MetroPCS’ prior written consent in each instance, which consent shall not be unreasonably withheld, while a Supplier Program Director is performing Services under the Agreement and for a period of ***, Supplier shall not allow that Supplier Program Director to perform services for any MetroPCS Competitor.
5.3 Removal of Supplier Personnel by MetroPCS . MetroPCS shall have the right to require Supplier to replace any Supplier Personnel who MetroPCS reasonably deems to be unfit or otherwise unsatisfactory to perform Supplier’s duties hereunder; provided ,
however , that during the *** period following such request for replacement, designated representatives from each party shall meet to discuss the request and any alternative solutions; however, if a solution acceptable to MetroPCS has not been reached by the end of such *** period, Supplier shall remove such Supplier Personnel and replace such Personnel in accordance with the terms of Section 5.5; provided , however , that MetroPCS shall not require any replacement for any reason prohibited under applicable Laws. Without limiting Supplier’s obligations in this Section, Section 4.3 , Section 5.2 or otherwise in the Agreement, and except to the extent prohibited by applicable Laws, Supplier agrees to immediately remove and replace any Supplier Personnel who: (a) is engaging in substance abuse while at a MetroPCS site or while performing Services; or (b) is impaired while performing Services. Subject to Supplier’s obligation to immediately remove Supplier’s Personnel as set forth above, in the case of reasonable suspicion of substance abuse, such removal and replacement shall occur pending completion of the applicable investigation, which shall be completed within *** days following such reasonable suspicion. Substance abuse includes the sale, attempted sale, possession or use of illegal drugs or drug paraphernalia or the misuse of prescription or non-prescription drugs, or the use of alcohol at a MetroPCS site or while performing Services. Supplier promptly shall notify MetroPCS in writing of any suspicion that any Supplier Personnel are engaged in substance abuse.
5.4 Removal/Reassignment of Supplier Personnel by Supplier . Supplier shall exercise reasonable best efforts to not remove or temporarily reassign from MetroPCS’ account and/or projects any Supplier Project Manager or installation team Personnel, in each case prior to the date on which such Personnel have completed performance of the Supplier obligations that they have been assigned to perform under this Agreement and/or the applicable Procurement Document. If it becomes necessary to remove or temporarily reassign any such Personnel, Supplier shall ensure that: (a) MetroPCS is given prompt written notice of the anticipated removal/reassignment; (b) prior to removal/reassignment of the applicable Personnel, Supplier has identified the replacement Personnel, which replacement Personnel must possess comparable experience and training as the individual whom Supplier intends to replace/reassign; and (c) *** to MetroPCS, the Personnel to be removed/reassigned must work with the replacement Personnel for a mutually agreed transition period, the duration of which shall be jointly determined by the parties based on the duties and responsibilities of the Person being replaced/reassigned. Provided the replaced/reassigned Personnel remains employed by Supplier, such Personnel shall continue to be available by telephone and email to answer any questions relating to the duties and obligations formerly preformed by such Personnel. Either party’s request for removal or reassignment of Personnel shall not excuse Supplier from meeting any Critical Milestones.
5.5 MetroPCS Personnel . MetroPCS shall provide a project manager for each project (each a “ MetroPCS Project Manager ”) who will: (a) act as a liaison between Supplier and MetroPCS for that project; and (b) coordinate MetroPCS resources and Personnel.
5.6 Status Meetings and Reports . On the dates and at the locations specified in the applicable Implementation Workplan, and in any event no less than monthly, the Supplier Project Manager, the MetroPCS Manager, other appropriate representatives of the parties and any necessary Third Parties shall meet at a MetroPCS-designated site or by telephone conference, as determined by MetroPCS, to discuss the status of Product installations and, as applicable, each project, and any difficulties or issues that may exist, including
personnel issues and any proposed changes to any Critical Milestones and/or changes to any date or other item set forth in the applicable Implementation Workplan. The parties acknowledge that any change of a Critical Milestone date shall require a mutually agreed Change Order. The parties shall keep records of all status meetings and issue copies of the records to all meeting attendees. At each status meeting, Supplier shall present to MetroPCS a written report of the status of each Product installation and/or project covering the items identified in Schedule 5.6 . The report shall include a summary, in such detail as MetroPCS shall reasonably request, of: (a) the accomplishments and difficulties encountered during the prior reporting period; (b) suggestions and proposed actions for dealing with and resolving any identified difficulties and the anticipated results during the next reporting period; (c) a comprehensive and consolidated log of all outstanding Product or project-related problems identified by MetroPCS and Supplier that remain to be resolved; and (d) if applicable, identification of any MetroPCS or Third Party delays or other circumstances known by Supplier that Supplier claims have impacted or will impact its ability to meet any Critical Milestone. MetroPCS shall have the right to assume that Supplier does not know of any problems, difficulties or issues that may have an adverse impact on the installation of Products or on a project (whether from a timing, cost or performance standpoint) unless Supplier specifically identifies such problems, difficulties or issues in its written status reports.
5.7 Administration of Projects . The MetroPCS Project Manager and the Supplier Project Manager for the applicable Procurement Document shall administer such Procurement Document, the Change Order process set forth in Section 6.4 and all decisions requiring the consent and/or approval of the other party, except for those decisions requiring the consent and/or approval of MetroPCS pursuant to the terms set forth in Sections 15.6 , 15.7 and 15.16 , which consent and/or approval shall be effective only upon a written notice signed by a Vice President or higher-level officer of MetroPCS. All consents and/or approvals made in contravention of the terms set forth in this Section shall be void and of no force and effect. The MetroPCS Project Manager, and the Supplier Project Manager shall be responsible for identifying within their respective organizations the individual(s) authorized to sign a Change Order based on the dollar value of such Change Order.
ARTICLE 6 — INSTALLATION AND IMPLEMENTATION
6.1 Implementation Workplan . When requested by MetroPCS in connection with a particular Product installation or project, the parties jointly shall develop a detailed implementation workplan (each, an “ Implementation Workplan ”) using a MetroPCS-designated project management tool (such as Microsoft Project) that, once finalized and approved by MetroPCS, shall be attached to and made a part of the applicable Procurement Document and/or Purchase Order. Each Implementation Workplan shall include, as applicable: (a) identification of all milestone events and interdependent milestone events; (b) identification of all critical milestones (“ Critical Milestones ”) and the commencement and completion dates for each such Critical Milestone; (c) a detailed description of all activities to be performed by Supplier and MetroPCS, including task and sub-task activities, the party responsible for, and the location of, on-site or off-site, such activities; (d) for any Services rendered on a time-and-materials basis, the number of hours required to perform each activity, task, sub-task and Critical Milestone; (e) a detailed description of all activities to be performed by Third Parties with whom Supplier is contracting including task and sub-task activities; (f) identification of all interdependent activities; (g) the
dates and locations of scheduled status meetings, pursuant to Section 5.6 ; (h) commencement and completion dates for the Product installation(s) or project; and (i) commencement and projected end dates for Acceptance testing. The commencement and completion dates for the Product installation(s) and/or project and related Critical Milestones and any payment milestones shall not be changed without the prior written consent of MetroPCS. MetroPCS’ failure to perform any activities that it is responsible for under an Implementation Workplan shall not, under any circumstances, constitute a breach of the Agreement by MetroPCS or result in an Event of Default by or with respect to MetroPCS.
6.2 Implementation Delays . Subject to the further terms of this Section, if MetroPCS reasonably determines that Supplier is likely to fail to timely complete a Critical Milestone, then at MetroPCS’ request and, unless the terms of subsection (f) below apply, *** to MetroPCS, Supplier shall provide that number and type of additional Supplier Personnel as may be required or necessary to complete the Critical Milestone by its completion date. If Supplier already has failed to timely complete a Critical Milestone, then without limiting any other available rights and remedies:
(a) MetroPCS shall have the right to *** under the applicable Purchase Order;
(b) at MetroPCS’ request and, unless the terms of subsection (f) below apply, *** Supplier shall provide that number and type of additional Supplier Personnel as may be required or necessary to complete the Critical Milestone within a re-adjusted time frame established by MetroPCS, provided that: (i) any adjustment of a Critical Milestone date shall not operate to adjust any future Critical Milestone date (unless specifically agreed to in writing by MetroPCS); and (ii) notwithstanding any such adjustment, MetroPCS shall be entitled to *** (“ Delay Credits ”) based on the original Critical Milestone date (unless specifically waived in writing by MetroPCS); and
(c) MetroPCS shall receive ***.
Notwithstanding the foregoing, if a Critical Milestone has been delayed (each of the following events constitutes an “ Excuse ”): (d) *** due to the occurrence of a Force Majeure Event; (e) by mutual written agreement of the parties; or (f) as a *** result of MetroPCS’ *** failure to perform *** obligations under the Agreement and designated as a MetroPCS obligation, provided that such failure and its likely impact on Supplier’s ability to timely achieve the Critical Milestone timely was identified sufficiently in advance by Supplier in a status report or other written notice to MetroPCS, the Critical Milestone date and any other subsequent affected Critical Milestone date(s) directly affected by such MetroPCS delay shall be extended automatically *** to account for the period of delay directly caused by the Excuse.
6.3 Supplier Specifications and Performance Standards . Each Product Addendum shall include Supplier’s published technical performance specifications for the Products (“ Supplier Specifications ”) and may include other mutually agreed Performance Standards for such Products.
6.4 Change Order Procedures . If either party believes that a change in a Procurement Document, Implementation Workplan, project or other work effort (whether in time frames, costs or deliverables) is necessary or desirable, such party shall submit a written change request to the other (a “ Change Request ”). ***. Accordingly, if Change Requests are made, they will be presumed not to impact the fees under this Agreement; provided , however , that if the Change Request ***, Supplier shall provide MetroPCS with written notification of such other deviation along with the Change Request or, if the Change Request was submitted by MetroPCS, within *** after its receipt of the Change Request. If agreed to by MetroPCS, a change in the fee equal to *** shall be made. If MetroPCS initiated the Change Request, within *** of Supplier’s receipt of such Change Request, Supplier shall provide to MetroPCS a written statement describing in detail: (a) the impact on the performance of the Product, project or other development effort, if any, and the modifications to the Product, project or other development effort that will be required as a result of the Change Request including, without limitation, changes in the Products and Services; (b) the effect of the Change Request on the applicable Implementation Workplan, project or other development effort including any impact on any Critical Milestone dates; and (c) an estimate of the cost to implement each Change Request (collectively, the “ Change Response ”). If Supplier submits a Change Request to MetroPCS, such Change Request shall include the information required for a Change Response. MetroPCS shall accept or reject any Change Response or Supplier-initiated Change Request, as applicable, within *** after receipt of same from Supplier. If MetroPCS accepts a Change Response or Supplier-initiated Change Request in writing, such Change Response, together with MetroPCS’ Change Request or such Supplier-initiated Change Request, shall be deemed to be a “ Change Order ” and shall become part of this Agreement and the applicable Procurement Document. If MetroPCS rejects Supplier’s Change Response or Supplier-initiated Change Request or fails to respond to Supplier in the time frame identified above, Supplier shall proceed to fulfill its obligations under this Agreement and the applicable Procurement Document. The parties may agree to different Change Order procedures pursuant to a Procurement Document.
6.5 Conversions . If any conversions are required with respect to a Product, MetroPCS and Supplier will develop a written conversion plan pursuant to the applicable Procurement Document that details the methods and procedures Supplier plans to use to effectuate such conversion. When finalized, such conversion plan shall be attached to the applicable Procurement Document.
6.6 Instruction and Training .
6.6.1 General . Supplier shall provide to MetroPCS the training Services described in the applicable Procurement Document for the fees (if any) set forth therein.
6.6.2 Right to Earn Additional Training Credits . MetroPCS shall earn training credits in accordance with the terms and conditions specified in the applicable Procurement Document. Training Services shall be made available to MetroPCS on a timely basis given MetroPCS’ installation schedules. Class sizes at MetroPCS’ location shall not exceed *** attendees. MetroPCS shall reimburse Supplier for reasonable, out-of-pocket expenses incurred by on-site instructors in accordance with Section 10.3 . Supplier shall provide to MetroPCS a descriptive list of its current class offerings upon MetroPCS’ request. Supplier shall provide reports to MetroPCS on a quarterly basis that specify the status of MetroPCS’ accumulation and use of training credits, if any.
ARTICLE 7 — TESTING AND ACCEPTANCE
7.1 Test Plans and Materials . Each Product Addendum may include a standard test plan (each, a “ Test Plan ”) for the Products available to be purchased and/or licensed by MetroPCS under such Product Addendum, and a Statement of Work may include a test plan for the Products purchased and/or licensed by MetroPCS under such Statement of Work (also a Test Plan). Each Test Plan shall, among other things: (a) describe the methodologies and procedures that will be used to test the applicable Products; (b) specify the criteria for commencing and concluding Product testing (“entrance” and “exit” criteria); and (c) allocate testing responsibilities between the parties. If requested by MetroPCS, the parties shall tailor a Product Addendum Test Plan for use in connection with a particular Product deployment. Supplier also shall identify and provide to MetroPCS all test plan models, test scripts, test scenarios, test databases and other relevant materials relating to Product testing.
7.2 Testing and Acceptance . In accordance with the terms of the applicable Test Plan (including the time frames for conducting testing), the parties shall test the Products (and new releases and/or new versions of Products) in both pre-production and production environments in order to verify and confirm that the products conform to the Test Criteria. Such testing minimally shall consist of: (a) unit testing; (b) integration testing (including testing all Interfaces); (c) stress and performance testing (including congestion control); and (d) hot swap-out testing. MetroPCS promptly shall report to Supplier any Defects discovered as a result of such testing, Supplier promptly shall correct such Defects, and following receipt of such corrections, MetroPCS shall have the right to continue testing the Products for the then-remaining length of the applicable testing period, or if the testing period has or is about to expire, then for the reasonable period of time necessary to confirm that the Product (as corrected by Supplier) conforms to the Test Criteria. The following conditions are necessary for a Product to achieve “ Acceptance ”: (a) all Material Defects identified during testing have been corrected by Supplier (and the terms of Section 7.4 shall apply to any unresolved non-Material Defects); and (b) Supplier has provided to MetroPCS all Documentation and other deliverables required to be provided to MetroPCS pursuant to the applicable Procurement Document. Nothing else, including MetroPCS’ use of a Product or any portion thereof in a live, production environment shall constitute Acceptance of such Product. When Supplier believes that all conditions necessary for a Product to achieve Acceptance have been met, Supplier shall present to the applicable MetroPCS Project Manager for signature an acceptance certificate in the form attached hereto as Schedule 7.2 (the “ Acceptance Certificate ”). If MetroPCS believes that all Acceptance conditions have not been satisfied, then within *** days following its receipt of the Acceptance Certificate from Supplier, MetroPCS shall detail its objections in writing. If MetroPCS fails to object to Supplier’s Acceptance Certificate within the *** day period described in the preceding sentence, Acceptance will be deemed to have occurred with respect to the applicable Product. Supplier acknowledges that the Acceptance Certificate must be signed by the applicable MetroPCS Project Manager or his or her designee, and Supplier shall not be entitled to rely on any signature by any MetroPCS Personnel or representative other than such MetroPCS Project Manager or his or her designee.
7.3 Failure to Achieve Acceptance . If Acceptance is not achieved within *** days after the scheduled date for Acceptance set forth in the applicable Implementation Workplan or Test Plan, unless such failure to achieve Acceptance was caused by an Acceptance Excuse, MetroPCS shall have the right at its sole option to: (a) accept the Product, subject to Supplier’s obligation to correct any then-remaining Defects as part of its Support and Maintenance Services obligations; (b) declare an Event of Default (in which event the terms of Article 11 shall apply); and/or (c) return the Product to Supplier and receive from Supplier a full refund of all monies paid respecting the applicable Product. Notwithstanding the foregoing, if Acceptance is not achieved within *** days after the scheduled date for Acceptance set forth in the applicable Implementation Workplan or Test Plan (each of the following events constitutes an “ Acceptance Excuse ”): (d) primarily due to the occurrence of a Force Majeure Event; (e) by mutual written agreement of the parties; or (f) as a direct result of MetroPCS’ sole failure to perform material obligations under the Agreement and designated as a MetroPCS obligation, provided that such failure and its likely impact on Supplier’s ability to timely achieve Acceptance timely was identified sufficiently in advance by Supplier in a status report or other written notice to MetroPCS, the Acceptance date shall be extended automatically on a day-for-day basis to the extent reasonably needed solely to account for the period of delay directly caused by the Acceptance Excuse.
7.4 Post-Acceptance Correction of Defects . Supplier shall correct any Defects remaining to be corrected following Acceptance in accordance with Supplier’s warranty and/or Support and Maintenance Services obligations under Article 8 .
7.5 Certification Testing . Section 3.6 sets forth the terms and conditions that are applicable to Supplier’s performance of certification testing for purposes of identifying Compatible Products.
ARTICLE 8 — SUPPORT AND MAINTENANCE SERVICES
How ContractsCounsel Works Hiring a lawyer on ContractsCounsel is easy, transparent and affordable. 1. Post a Free Project Complete our 4-step process to provide info on what you need done. 2. Get Bids to Review Receive flat-fee bids from lawyers in our marketplace to compare. 3. Start Your Project Securely pay to start working with the lawyer you select.8.1 General . During the Warranty Period and thereafter for as long as MetroPCS elects to receive Support and Maintenance Services under the terms of this Agreement and/or any applicable Procurement Document, whether on a time-and-materials basis (including, without limitation, pursuant to Supplier’s time-and-materials support program for Wireless Products as provided in Product Addendum One (Wireless Products)) or pursuant to any of Supplier’s standard post-Warranty Period service plans as described in Product Addendum One (Wireless Products) or in the applicable Procurement Document, Supplier shall provide to MetroPCS the support and maintenance Services (“ Support and Maintenance Services ”) described in this Article 8 , in Product Addendum One (Wireless Products) and in the applicable Procurement Document. MetroPCS acknowledges that repair or replacement of Equipment following expiration of the applicable Warranty Period shall be at MetroPCS’ sole cost and expense; provided , however , that if MetroPCS elects to have Supplier provide such repair or replacement, the associated costs and expenses charged by Supplier ***.
8.2 Term and Termination . Support and Maintenance Services for a Product acquired by MetroPCS pursuant to a Procurement Document shall commence upon the beginning of the Warranty Period for the applicable Product and shall extend for the duration of the applicable Warranty Period. Thereafter, Supplier shall provide Support and Maintenance Services with respect to a particular
Product on a time-and-materials basis; provided , however , that if MetroPCS elects a Support and Maintenance Services plan as set forth in Product Addendum One (Wireless Products) or in the applicable Procurement Document upon written notice to Supplier, the term of such elective Support and Maintenance Services plan shall be *** and shall thereafter extend automatically for *** terms unless terminated: (a) by either party upon the occurrence of an Event of Default by or with respect to the other party; (b) by MetroPCS upon *** written notice to Supplier of its election not to renew; or (c) by Supplier upon *** written notice to MetroPCS of its election not to renew. Notwithstanding the foregoing, Supplier shall make the Support and Maintenance Services described in this Article available to MetroPCS ***: (d) for any Wireless Products, a period of *** years following commencement of the Warranty Period for the applicable Wireless Products; (e) for any Products other than Wireless Products, for a period of *** years following commencement of the Warranty Period for the applicable Product; and (f) with respect to Wireless Products and all other Products, until ***; provided , however , that Supplier shall provide MetroPCS written notice at least *** year prior to Supplier ceasing to make such Support and Maintenance Services available to its customers generally.
8.3 Third Party Product Support and Maintenance Services Guarantees . If agreed upon by the parties in the applicable Procurement Document, Supplier shall provide to MetroPCS Third Party Product support and maintenance services guarantees, executed by the applicable Third Party Product manufacturer or support and maintenance services provider, that specify the term and support level to be provided by the manufacturer or services provider, as applicable, and guarantee that such Third Party Products or services, as applicable, will be available to MetroPCS for the period of time specified in the applicable Procurement Document. MetroPCS shall either be a signatory or an expressly acknowledged third-party beneficiary of all such guarantees. If requested by MetroPCS, which request shall serve as MetroPCS’ authorization, Supplier shall serve as a liaison between MetroPCS and the applicable Third Party Product manufacturers for any Third Party Product-related support requested by MetroPCS, and such Services will be provided at the Service Rates.
8.4 Support and Maintenance Services Fees . If MetroPCS elects to obtain Support and Maintenance Services from Supplier for a Product on other than a time-and-materials basis, the fees for such Support and Maintenance Services shall: (a) be set forth in the applicable Procurement Document; (b) commence upon the date set forth in the applicable Procurement Document; and (c) be payable quarterly by MetroPCS. Time-and-materials Support and Maintenance Services shall be invoiced by Supplier and payable by MetroPCS on a monthly basis. Support and Maintenance Services fees for a Product may be increased by Supplier *** commencing *** following the date on which such fees began; provided , however , that Supplier must provide MetroPCS with written notice of such increases by October 1st of each calendar year, and such *** increases shall ***.
8.5 Warranty Periods . Unless specified otherwise in the applicable Procurement Document, the following warranty periods (each, a “ Warranty Period ”) shall apply to Products procured by MetroPCS under this Agreement:
(a) Supplier Products . The Warranty Period for Supplier Products shall commence *** and, unless expressly modified in the applicable Procurement Document, shall continue for the period of time set forth in Schedule 8.5 .
(b) Third Party Products . The Warranty Period for any Third Party Products shall be the applicable manufacturer’s warranty, unless such Third Party Products qualify as a Supplier Product, in which case the Warranty Period set forth in subsection (a) of this Section shall apply.
(c) Repaired Equipment; Replacement Parts . The Warranty Period for Equipment repaired by Supplier at MetroPCS’ premises or replacement parts supplied by Supplier to MetroPCS as provided in Section 3.5.4 shall be ***: (i) the time period specified in Schedule 8.5 ; and (ii) ***.
ARTICLE 9 — REPRESENTATIONS AND WARRANTIES
9.1 Supplier Product Functionality Warranty . Supplier represents and warrants to MetroPCS that, ***, the Supplier Products shall function in accordance with the applicable Documentation, Supplier Specifications, Open Network Architecture requirements, and all Regulatory Requirements. If a Defect or other non-conformity appears in a Supplier Product and MetroPCS promptly notifies Supplier of such Defect or other non-conformity and follows Supplier’s instructions regarding the repair and/or return of such Supplier Product to Supplier (in accordance with the terms of Section 3.5.4.3 , to the extent the Defect or other non-conformity relates to Equipment), Supplier will *** either repair, replace or correct such Supplier Product as soon as possible, but, without diminishing Supplier’s obligations under Product Addendum One (Wireless Products) or in the applicable Procurement Document , in no event later than *** following receipt of written notice of such Defect or non-conformity unless otherwise agreed to in writing by the parties. If Supplier is unable to repair, replace or correct the Defect or other non-conformity as provided herein, Supplier shall provide a refund or credit to MetroPCS of ***.
9.2 Documentation Warranty . Supplier represents and warrants to MetroPCS that it has provided to MetroPCS all Documentation for the Products and that such Documentation is detailed and accurately describes the functional and operational characteristics of the Products. Supplier further represents and warrants that it will provide to MetroPCS updated versions of all such Documentation in accordance with the terms set forth in Product Addendum One (Wireless Products) or in the applicable Procurement Document and that all such updated Documentation will be accurate and will be at least as detailed as the Documentation issued to MetroPCS with the initial version of the Products. The warranty contained in this Section shall remain in full force and effect for as long as MetroPCS continues to receive Support and Maintenance Services from Supplier.
9.3 Performance Warranties .
9.3.1 Performance Standards . Supplier represents and warrants to MetroPCS that each Product shall conform to the Performance Standards set forth in the applicable Procurement Document.
9.3.2 Compatibility Warranty for Products . Supplier represents and warrants that all Software supplied or recommended by Supplier pursuant to a Procurement Document including, without limitation, any Custom Programming and all Enhancements to such Software, will operate compatibly on the Equipment supplied, required or recommended by Supplier pursuant to such Procurement Document. The warranty and covenants contained in this Section shall remain in full force and effect for ***.
9.3.3 Correction of Failure to Meet Performance Warranties . If MetroPCS discovers that a Product fails to comply with any of the warranties set forth in Sections 9.3.1 or 9.3.2 , without diminishing Supplier’s obligations under Product Addendum One (Wireless Products) or in the applicable Procurement Document, within: (a) *** for Wireless Products; and (b) *** for all other Products, in each case following Supplier’s receipt of written notice of such failure, Supplier shall *** either: (c) repair, replace or correct the applicable Product; or (d) if Supplier is not able to repair, replace or correct the Product within the applicable time frame specified in subsections (a) and (b) above, provide to MetroPCS a plan to repair, replace or correct the Product that is acceptable to MetroPCS. If Supplier fails to perform as provided above, Supplier will refund to MetroPCS ***.
Notwithstanding Supplier’s obligation to repair, replace, or correct a Product’s failure to meet Performance Standards associated with such Product, a failure to meet such Performance Standards may be subject to Supplier’s provision of performance credits (“ Service Level Credits ”) to MetroPCS. The amounts and provision of such Service Level Credits are set forth in the applicable Product Addendum.
9.4 Pricing and Terms and Conditions Warranty . Supplier represents and warrants that during the Term the prices, terms and conditions contained in this Agreement for the purchase of Products and Services by MetroPCS ***.
9.5 Disabling Code Warranty . Except as specified below, Supplier represents and warrants to MetroPCS that any Software provided by Supplier hereunder does not, at the time of delivery and installation by Supplier, contain and will not receive from Supplier’s data transmission via modem, link, internet, or any other Supplier medium any virus, spyware, malware, worm, trap door, Trojan horse, back door, timer, clock, counter or other limiting routine, instruction or design that would erase data or programming or that was otherwise created to cause any Product to become inoperable or incapable of being used in accordance with the Documentation (collectively, a “ Disabling Code ”) including, without limitation, any limitations that are triggered by: (a) the Software being used or copied a certain number of times, or after the lapse of a certain period of time; (b) the Software being installed on or moved to a central processing unit or system that has a serial number, model number or other identification different from the central processing unit or system on which the Software was originally installed; or (c) the occurrence or lapse of any similar triggering factor or event. As an exception to the above, Supplier represents and warrants to MetroPCS and MetroPCS acknowledges that certain Supplier Product may contain programming which restricts and/or limits access to the features and functionality of such Product subject to MetroPCS making payment for such features or functionality and utilizing the purchased hash code or pass code needed to access such features or functionality. If a Disabling Code is identified, Supplier shall take all steps necessary, ***, to: (d) restore and/or
reconstruct any and all data lost by MetroPCS as a result of such Disabling Code; (e) furnish to MetroPCS a new copy of the Software without the presence of Disabling Codes; and (f) install and implement such new copy of the Software. On each annual anniversary of the Effective Date, a Supplier officer shall certify to MetroPCS in writing that Supplier is in compliance with its representation and warranty set forth in this Section. This warranty shall remain in full force and effect until***.
9.6 Open Architecture Warranty . Unless otherwise mutually agreed by the Parties in a Procurement Document, Supplier represents and warrants to MetroPCS that all Products shall *** conform to applicable Open Architecture Standards. This warranty shall remain in full force and effect until ***.
9.7 Third Party Warranties and Indemnities . Supplier shall use its best efforts to enter into agreements with suppliers of Third Party Products that include intellectual property infringement defense and indemnification provisions that are at least as protective of the MetroPCS Indemnified Parties as the terms of Section 13.2 and that include the MetroPCS Indemnified Parties within the scope of the persons and entities entitled to receive defense and indemnification and to be held harmless thereunder. Upon request, Supplier shall provide to MetroPCS a copy of the relevant portions of the agreement between Supplier and a supplier of Third Party Products if MetroPCS reasonably believes that it may be entitled to tender defense of a claim and/or seek indemnification in respect of a claim asserted by a Third Party. Supplier shall cooperate with MetroPCS and provide MetroPCS with any requested assistance to cause such Third Party to perform its obligations under such agreement. Supplier hereby assigns to MetroPCS all end-user warranties and indemnities relating to Third Party Products provided by Supplier to MetroPCS. If Supplier is not permitted to assign any of such end-user warranties and indemnities through to MetroPCS, Supplier shall enforce such warranties and indemnities on behalf of MetroPCS to the extent Supplier is permitted to do so under the terms of the applicable Third Party agreements. In addition to the above, at MetroPCS’ request, Supplier shall register MetroPCS with any and all Third Party Product vendors who have such registration programs such that MetroPCS is acknowledged as a support obligation and MetroPCS can receive and obtain product notices directly from the Third Party Product vendor. Supplier shall produce evidence of such registration within thirty (30) days from the date MetroPCS requests Supplier to obtain such registration.
9.8 Services Warranty . Supplier represents and warrants to MetroPCS that it shall perform the Services and provide the deliverables required by this Agreement and any Procurement Document in a good, workman-like and professional manner and in accordance with Supplier’s standards for such Services and industry practices and standards that generally are applicable to such Services in the country in which the Services are provided; provided , however , that where this Agreement or a Procurement Document specifies a particular standard or criteria for performance, this warranty is not intended to and does not diminish that standard or criteria for performance.
9.9 Intellectual Property Warranty . Except as otherwise disclosed in writing by Supplier to MetroPCS, Supplier represents and warrants to MetroPCS that: (a) *** there are no lawsuits pending that allege that the Products and/or Services covered by a
Procurement Document infringe upon the Intellectual Property Rights of any Third Party (“ Third Party IP Right ”); and (b) *** there is no demand or threatened suit or claim against Supplier by any Third Party alleging violation or infringement of a Third Party IP Right related to the Products. This warranty shall survive the expiration or termination of this Agreement.
9.10 Warranty of Authority . Each party represents and warrants to the other party that it has the right to enter into this Agreement. Supplier further represents and warrants that there are no outstanding assignments, grants, licenses, encumbrances, obligations or agreements (whether written, oral or implied) that are inconsistent with this Agreement and the rights granted or transferred herein. This warranty shall survive the expiration or termination of this Agreement.
9.11 Warranty of Title . Supplier represents and warrants to MetroPCS that it has all sufficient rights to license the Software and/or sell the Products and Equipment, as applicable, and, if necessary, to sublicense all Embedded Third Party Software and other Supplier-provided Third Party Software sublicensed to MetroPCS, all for the perpetual term stated herein. Supplier further represents and warrants that: (a) it has good and marketable title to all Products; (b) is transferring good and marketable title to such Products; and (c) each Product shall be free and clear of all liens, claims, encumbrances or demands of Third Parties. This warranty shall survive the expiration or termination of this Agreement.
9.12 Pending Litigation Warranty . Each party represents and warrants to the other party that, as of the Effective Date, there is no action, suit, claim, investigation or proceeding pending, or to the best of such party’s knowledge, threatened against, by or affecting such party, the Products and/or the Services which, if adversely decided, might adversely affect such party’s ability to enter into this Agreement. Supplier represents and warrants to MetroPCS that, as of the Effective Date, there is no action, suit, claim, investigation or preceding pending, or, to the best of Supplier’s knowledge, threatened against, by or affecting Supplier, the Products and/or the Services which if adversely decided, might adversely affect (a) Supplier’s performance of its obligations herein; or (b) MetroPCS’ purchase and/or use of the Products and/or Services.
9.13 Additional Warranties . Supplier’s performance under this Agreement shall include, in addition to the warranties set forth in this Article, all representations and warranties set forth in any Procurement Document.
9.14 Material Misstatements or Omissions . No representation or warranty by Supplier that is contained in this Agreement or in any Schedule, Exhibit or other Attachment or in any Procurement Document contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements and facts contained herein or therein not materially misleading.
9.15 Warranty Disclaimer. THE WARRANTIES SET FORTH IN THIS AGREEMENT AND IN ANY PROCUREMENT DOCUMENT ARE THE ONLY WARRANTIES OF EITHER PARTY AND NO OTHER WARRANTY, EXPRESS OR IMPLIED, WILL APPLY, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTY OF MERCHANTABILITY AND IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
ARTICLE 10 — PRICING AND PAYMENT TERMS
How ContractsCounsel Works Hiring a lawyer on ContractsCounsel is easy, transparent and affordable. 1. Post a Free Project Complete our 4-step process to provide info on what you need done. 2. Get Bids to Review Receive flat-fee bids from lawyers in our marketplace to compare. 3. Start Your Project Securely pay to start working with the lawyer you select.10.1 Time and Method of Payment .
10.1.1 Invoicing. All fees payable to Supplier under this Agreement shall be detailed, categorized and clearly stated on an invoice in accordance with the terms and conditions set forth in this Section. Unless otherwise agreed by the parties, all Supplier invoices shall be expressed in, and all amounts payable under this Agreement shall be payable in, U.S. Dollars. Supplier shall invoice MetroPCS as set forth in this Section, and MetroPCS shall pay all net undisputed amounts due to Supplier under this Agreement within *** days following MetroPCS’ receipt of Supplier’s invoice, provided that: (a) for Products or Services furnished pursuant to a Procurement Document, different payment terms for such Products and/or Services may be set forth in the applicable Procurement Document; (b) undisputed overdue invoices shall bear interest at the rate of *** percent *** per month, or the maximum rate permitted by Law, whichever is less; provided , further , that in no event shall Supplier send an invoice to MetroPCS for Products, nor shall amounts invoiced be due for Products, prior to the later of: (x) ***; or (y) or (z) ***. Supplier shall submit all invoices to the following address:
MetroPCS Wireless, Inc.
2250 Lakeside Boulevard
Richardson, Texas 75082
or to such other address as may be specified by MetroPCS upon written notice to Supplier. Each invoice must reference: (c) the above invoice address; (d) the applicable Purchase Order number; and (e) if available, the project number identified in the applicable Purchase Order.
10.1.2 Net Zero Discount . Notwithstanding anything to contrary in Section 10.1.1 above, subject to MetroPCS having provided notice at least *** prior to the commencement of *** of its intent to exercise ***, Supplier shall extend to MetroPCS ***, to be used at the sole option of MetroPCS. Supplier agrees to work with MetroPCS to implement a process for Supplier to communicate shipping information on a timely basis to MetroPCS in order to facilitate MetroPCS’ ability to make payments on the date of its receipt of the invoice. ***.
10.1.3 Payments . MetroPCS shall submit all payments other than EFT payments to Supplier at the following address: P.O. Box 677504, Dallas, TX 75267-7504.
10.1.4 Electronic Funds Transfer . MetroPCS shall have the right, but not the obligation, to pay any amounts due Supplier hereunder using electronic funds transfer (“ EFT ”). EFT payments by MetroPCS shall be made to the following account of Supplier or such other account as is subsequently designated by Supplier in writing:
10.1.5 Invoicing for Products . The prices for Products and the related payment terms shall be set forth in the applicable Procurement Document; provided , however , that for any Product that is not subject to a Procurement Document, the price shall be the
Supplier Price List in effect on the date of the applicable Purchase Order ***. Unless otherwise specified in a Procurement Document, Supplier shall not invoice MetroPCS for Products any earlier than the date of shipment of such Products.
10.1.6 Invoicing for Software . All license fees for Software furnished by Supplier to MetroPCS under the terms of this Agreement and the payment terms for such license fees shall be set forth in the applicable Procurement Document. Unless otherwise specified in a Procurement Document, Supplier shall not invoice MetroPCS for Software any earlier than the date of delivery of such Software to MetroPCS.
10.1.7 Invoicing for Services . The prices for all Services rendered by Supplier to MetroPCS shall be set forth in the applicable Procurement Document, and except for Support and Maintenance Services, payable at the service rates (“ Service Rates ”) set forth in the applicable Procurement Document, ***. If Service Rates are not specified in the applicable Procurement Document, then, unless the parties agree otherwise, the Service Rates set forth in Schedule 10 shall apply. The Service Rates set forth in Schedule 10 may be *** commencing on the date that is ***; however, Supplier must provide MetroPCS with written notice of ***. Any invoice relating to fees for any Services shall: (a) detail the description of the Services performed ( e.g. , each activity, task and/or Critical Milestone), the identity of the Personnel performing the Services, and the number of hours and corresponding fees attributable to each such persons’ performance of the Services; and (b) organize and reflect the Services by project or information technology business unit of MetroPCS (as such projects or business units are described by MetroPCS). Unless other payment terms are specified in the applicable Procurement Document, payments to Supplier for implementation Services shall be invoiced as provided below in this Section.
10.1.7.1 Fixed Fee Services . All Services identified in a Procurement Document as Services to be paid at a fixed rate (except for engineering, installation and related Services which are bundled with Product sales, the fees for which shall be billed in accordance with Section 10.1.1 ) shall be invoiced according to the following:
Unless otherwise agreed in a Procurement Document, the Critical Milestones for the fixed fee Services shall be identical to the Critical Milestones for the payment of Equipment or Software license fees, as applicable.
10.1.7.2 Time-and-Materials Services . All Services identified in a Procurement Document as Services to be paid on a time-and-materials basis shall be invoiced in accordance with the terms set forth in this Section. ***. Unless otherwise agreed in a Procurement Document, the Critical Milestones for the time-and-materials Services shall be identical to the Critical Milestones for the payment of associated Equipment or Software license fees, as applicable.
10.1.8 Credits Owed by Supplier to MetroPCS . A Procurement Document may set forth certain Service Level Credits that will be applicable with respect to Supplier’s actual performance as measured against the Performance Standards with respect to Products covered by such Procurement Document. Additionally, a Procurement Document and/or Purchase Order(s) may set forth certain Delay Credits that will be applicable with respect to Supplier’s actual performance as measured against Critical Milestones. Any Service Level Credits and/or Delay Credits that accrue in accordance with the terms of this Agreement and/or a Purchase Order shall offset the charges payable thereunder. The parties agree that the actual damages resulting from delays or failure in performance are difficult to calculate and the Service Level Credits and Delay Credits reflect the parties best estimate of the diminished value of the Products and Services as a result of an Supplier’s failure to provide the Products and Services in accordance with the Performance Standards and/or timely achieve a Critical Milestone, and accordingly do not constitute nor shall be construed or interpreted as penalties. All Service Level Credits, Delay Credits or other credits owed by Supplier to MetroPCS shall be credited to MetroPCS ***.
10.2 Disputed Amounts . If an invoiced amount is disputed in good faith by MetroPCS then, until resolution of the dispute occurs pursuant to Article 14 , MetroPCS may suspend disputed payments and toll the running of time for default by paying the undisputed amount, if any, and sending a written statement of exceptions to Supplier. All of Supplier’s obligations shall continue unabated during the duration of the dispute resolution. MetroPCS shall have the right to set off any undisputed amounts owed to Supplier against ***.
10.3 Travel Policy, Out-of-Pocket Expenses and Other Charges . MetroPCS shall reimburse Supplier for all reasonable travel and out-of-pocket expenses incurred by Supplier, provided that such expenses conform to MetroPCS’ polices as communicated to Supplier in writing unless otherwise mutually agreed. MetroPCS shall have the right to modify any such policy upon reasonable notice to Supplier.
10.4.1 General . Supplier’s prices are exclusive of any national, federal, state, provincial, local or other sales, use, excise, value-added, customs and other taxes or like charges arising hereunder and MetroPCS shall reimburse Supplier, or pay all such taxes and charges directly, as appropriate. If Supplier has paid or will pay such taxes or charges on MetroPCS’ behalf, Supplier shall separately list on its invoices any such taxes or charges, except where MetroPCS furnishes evidence of a lawful exemption. If value-added tax on the supplies of Supplier is payable by MetroPCS under a reverse charge procedure ( i.e. , shifting of liability, accounting or payment requirement to recipient of supplies), MetroPCS shall ensure that Supplier will not effectively be held liable for this value-added tax by the relevant taxing authorities or other parties. Where applicable, Supplier shall ensure that its invoices to MetroPCS are issued in such a way that these invoices meet the requirements for deduction of input value-added tax by MetroPCS. MetroPCS shall in no event be liable for the payment of any taxes or like charges based upon the net income of Supplier.
10.4.2 Exemptions . Supplier shall not collect otherwise applicable taxes or like charges if a valid tax exemption certificate is furnished by MetroPCS to Supplier prior to issuance of the applicable Purchase Order. If Supplier collects taxes and MetroPCS either: (a) subsequently determines that the taxes were not due; or (b) had previously issued to Supplier a valid exemption certificate or (c) MetroPCS subsequently provides a valid exemption certificate, Supplier will make all reasonable efforts to assist MetroPCS in obtaining a refund of such taxes collected in error, including, but not limited to, issuing a credit memo and/or filing a refund claim on behalf of MetroPCS if requested to do so in writing by MetroPCS.
10.4.3 Special Provision Relating to State Sales and Use Taxes . If MetroPCS takes possession of Products in the United States from Supplier and such transfer is subject to sales or use tax of a particular state in the United States, MetroPCS will reimburse Supplier for any such taxes paid by Supplier over and above the purchase price for such goods; provided , however , that MetroPCS shall not reimburse Supplier for any such taxes charged against Supplier or MetroPCS on account of Supplier’s mis-delivery or other failure to comply with MetroPCS’ delivery instructions.
10.4.4 Protested Taxes . Supplier shall promptly notify MetroPCS in writing of: (a) any Tax Assessment by a state or local taxing authority; and (b) any decision with respect to a Tax Assessment which has been appealed or protested; provided , however , that Supplier shall in all instances give MetroPCS written notice of such event no later than *** prior to the date by which a response, protest, contest, or other appeal of such Tax Assessment must be filed. In the first instance, Supplier shall have the exclusive right to contest any Tax Assessment at its own expense. If all or any portion of a Tax Assessment must be paid in order to contest the imposition of any such Tax Assessment in connection with a contest that Supplier elects to pursue, or to avoid the existence of a lien on the assets of Supplier during the pendency of such contest, Supplier shall be responsible for such payment and shall be entitled to the benefit of any refund or recovery. MetroPCS shall pay all valid final and non-appealable Tax Assessments (or reimburse Supplier in the event Supplier pays any or all valid final and non-appealable Tax Assessments) upon presentation by Supplier of proof of a valid final and non-appealable Tax Assessment. MetroPCS’ liability for valid final and non-appealable Tax Assessments will be limited to the actual tax that was originally due without respect to any sampling projection that may occur during a tax audit. A “ valid final and non-appealable Tax Assessment ” shall mean one that is issued by a state or local taxing authority in accordance with the applicable Law and which is not subject to any further administrative or judicial review and all times for appeal, reconsideration, or requests for reassessment have run without an appeal, reconsideration, or request for reassessment having been taken. If Supplier elects not to contest a Tax Assessment, Supplier must either: (c) waive its right to reimbursement from MetroPCS for that Tax Assessment in which event MetroPCS shall have no right to contest the Tax Assessment and MetroPCS shall have no liability for such Tax Assessment; or (d) promptly notify MetroPCS in writing that it is: (1) not responding, protesting, contesting, or appealing the Tax Assessment; and (2) seeking reimbursement for the Tax Assessment as if it were a valid final and non-appealable Tax Assessment which notice shall set forth the legal and/or factual basis for not contesting the Tax Assessment along with a copy of the Tax Assessment; provided , however , that Supplier shall in all instances give MetroPCS written notice of such decision to not protest, contest or appeal such Tax Assessment no later than *** prior to the date by which a response, contest, protest or other appeal of such
Tax Assessment must be filed; provided , further , that Supplier may not elect the option set forth in subparagraph (d) (e.g., to notify MetroPCS and not protest, contest, or appeal a Tax Assessment) unless Supplier has a good faith belief that there is no reasonable basis in Law or fact for a contest, protest, or appeal of such Tax Assessment; provided , finally , that in the event that Supplier elects the option set forth in subparagraph (d) and fails to notify MetroPCS in writing in time to allow MetroPCS to file a response, protest, or contest, Supplier shall be deemed to have waived its right to seek reimbursement from MetroPCS for that Tax Assessment. In the instance Supplier notifies MetroPCS that it is not contesting the Tax Assessment, MetroPCS may elect, at its sole discretion, to pursue the contest of the Tax Assessment in good faith, at its own expense, or to pay to Supplier the Tax Assessment. If MetroPCS elects to contest a Tax Assessment and, further, in the event that all or a portion of a Tax Assessment must be paid in order to contest the imposition of any such Tax Assessment or to avoid the existence of a lien on the assets of Supplier during the pendency of such contest, MetroPCS shall be responsible for such payment. If any such contest must be pursued in the name of Supplier, Supplier shall permit MetroPCS to pursue and control the contest in the name of Supplier, and Supplier shall have the opportunity to participate fully in the preparation of such contest at its own expense. In any contest of a Tax Assessment, the party bringing the protest shall promptly furnish the other party with written notice of the pending proceeding, copies of all filings in any proceeding, protest, contest, or legal challenge, all rulings issued in connection therewith, all correspondence between such party and the state or local taxing authority, the final resolution thereof, and any action therein that would affect Supplier’s obligation to collect and remit, and the party bringing the contest shall allow the other party to participate in such contest with its own counsel at its own expense.
10.5 Market Pricing Adjustment . Supplier shall extend to MetroPCS prices, terms and conditions for the purchase of Products and Services by MetroPCS ***. On ***, a Supplier officer shall certify to MetroPCS in writing that ***. In addition, the parties shall meet on or about *** to *** to determine if ***. If ***, the parties shall meet to determine *** (“ Market Price Adjustment ”). For purposes of administering this Section, ***. Any information provided by one party to the other party pursuant to the terms of this Section shall not identify any Third Party and shall be subject to the provisions of Article 12 .
10.6 Price Erosion . Notwithstanding anything contained herein to the contrary, commencing on ***, Supplier will ***. For the avoidance of doubt, the terms of this Section ***.
10.7 Marketing Development Fund Incentive . Supplier *** to a marketing development fund (“ MDF ”) during the Term ***. The MDF provides assistance for market development and promotional activities executed by MetroPCS to stimulate its own sales and marketing activities.
10.8 Contracting Expenses . Each party shall bear all costs and expenses paid or incurred by it in connection with the planning, preparation, negotiation and consummation of the Agreement, each Procurement Document and each Purchase Order.
ARTICLE 11 — TERM AND TERMINATION