exv10w9



 




EXHIBIT 10.9







PURCHASE AND LICENCE
AGREEMENT








     
This Purchase and License Agreement
(“PLA”) is between Nortel Networks Limited
(“Nortel Networks”) and Microcell Connexions Inc.
(“Customer”) effective as of December 20, 2001.
Additional terms related to Customer’s purchase or license
of Products or Services may be added by written agreements
(“Supplements”) referencing the PLA. The Services
Supplement is attached hereto and incorporated by reference.



 


		
	1.	
    Definitions




			
	 	a)	
    “Acceptance Tests” means the set of
    criteria jointly developed and agreed to by both Customer and
    Nortel Networks in respect of the Products
    
	 
	 	b)	
    “D-Date” means the date upon which a
    Product or Service is delivered to the Customer as agreed upon
    by the parties.
    
	 
	 	c)	
    “Furnish-only” means Products that
    Customer installs.
    
	 
	 	d)	
    “Hardware” means a Nortel Networks
    machine or components.
    
	 
	 	e)	
    “GA” means the date upon which a
    Product or Service is generally available for purchase by
    any customer.
    
	 
	 	f)	
    “K-Date” or “Acceptance”
    means the date of completion of installation by
    Nortel Networks and completion of Acceptance Test.
    
	 
	 	g)	
    “Products” are any Hardware, Software
    or Third Party Vendor Items provided under this PLA.
    
	 
	 	h)	
    “Services” means the activities to be
    undertaken by Nortel Networks pursuant to an Order,
    including, but not limited to, engineering, maintenance and
    installation, implementation, support, design, consulting,
    business planning, network planning and analysis.
    
	 
	 	i)	
    “Software” is owned or licensed by
    Nortel Networks, its parent or one of its subsidiaries or
    affiliates, and is copyrighted and licensed, not sold. Software
    consists of machine-readable instructions, its components, data,
    audio-visual content (such as images, text, recordings or
    pictures) and related licensed materials including all whole or
    partial copies.
    
	 
	 	j)	
    “Third Party Vendor Item” includes
    “Third Party Hardware” and “Third Party
    Software” and means any non-Nortel Networks hardware
    and/or software supplied to Customer under this PLA.
    




 


		
	2.	
    Orders



     
Customer may acquire Products or Services by
issuing a written purchase order signed by an authorized
representative or, if Customer is enrolled in any then current
Nortel Networks’ electronic commerce program, by
submitting electronic orders (collectively, “Orders”).
All Orders shall specify the quantity, price, Nortel Networks
quotation number when applicable, shipping and billing
instructions, installation location, requested delivery dates,
requested commencement date for Services, any statement of work,
and any other special instructions. Unless mutually agreed upon
in writing, all Orders will be governed by, and cannot alter,
the terms and conditions of this PLA. Nortel Networks’
written or electronic communication accepting the Order,
shipment of Products or commencement of Services will be
Nortel Networks’ acceptance of Customer’s Order.
If Nortel Networks’ acknowledgement is not received by
Customer within five (5) workings days of the fax of the
order to Nortel Networks, the order will be deemed accepted
by Nortel Networks. Customer may











 




cancel an Order without prejudice if this
cancellation occurs before the minimum ordering lead-times of
the specified Products as set forth in the Supplements.




 


		
	3.	
    Electronic Commerce Programs



     
By enrolling in any Nortel Networks’
electronic commerce program, Customer agrees to comply with the
terms of such program. Customer agrees that all electronic
Orders issued are equivalent to a written Order, are governed by
the terms and conditions of this PLA and that in the event of
any conflict between this PLA and the information contained in
Customer’s or Nortel Networks’ electronic
commerce website, this PLA governs. Customer is responsible for
the use and protection of all electronic commerce passcodes
provided by Nortel Networks and agrees that all Orders submitted
using such passcodes are valid and binding Orders authorized by
Customer. Nortel Networks shall have no liability to
Customer due to Customer’s failure to access
Customer’s or Nortel Networks’ electronic
commerce website or errors or failures relating to its operation.



 


		
	4.	
    Licensed Use of Software



     
Nortel Networks grants Customer a
nonexclusive license to use a copy of the Software to the extent
of the activation or authorized usage level. To the extent
Software is furnished for use with designated Products or
Customer furnished equipment (“CFE”), Customer is
granted a nonexclusive license to use Software only on such
Products or CFE, as applicable. Software contains trade secrets
and Customer agrees to treat Software as Information. Customer
will ensure that anyone who uses the Software does so only in
compliance with the terms of this PLA. Customer shall not
a) use, copy, modify, transfer or distribute the Software
except as expressly authorized; b) reverse assemble,
reverse compile, reverse engineer or otherwise translate the
Software; c) create derivative works or modifications
unless expressly authorized; or d) sublicense, rent or
lease the Software. Licensors of intellectual property to
Nortel Networks are beneficiaries of this provision. Upon
termination or breach of the license by Customer or in the event
designated Product or CFE is no longer in use, Customer will
promptly return the Software to Nortel Networks or certify
its destruction. Nortel Networks may audit by remote polling or
other reasonable means to determine Customer’s Software
activation or usage levels. With respect to Third Party
Software, Customer agrees to abide by the terms provided by
Nortel Networks with respect to any such software. Customer
further agrees that the terms contained in any
Nortel Networks or third party “shrink wrap” or
“click” licenses shall govern the use
of such software.



 


		
	5.	
    Charges and Payment



     
Amounts are due upon receipt of invoice and shall
be paid by Customer within 30 days of the receipt of the
invoice by Customer. Invoice cannot be issued before the D-Date.
In the event of non-payment after such period of thirty
(30) days, Nortel Networks may suspend performance,
product shipments or otherwise terminate this PLA upon a five
(5) day written notice provided the default is not cured
within such five (5) days. Nortel Networks will inform
Customer in advance whenever additional charges for special
handling apply. All the charges for shipping insurance and
special handling are Nortel Networks responsibility.
Charges for Software may be based on extent of use authorized as
specified in a Supplement or invoice. Customer agrees to pay the
charges applicable for any activation or usage beyond the
authorized level. If any authority imposes a tax, duty, levy or
fee, excluding those based on Nortel Networks’ net
income, upon a Product or Service supplied by
Nortel Networks under this PLA, Customer agrees to pay that
amount as specified in the invoice, or supply exemption
documentation. Customer consents without qualification to the
sale of receivables, in whole or in part, including all or any
part of any associated rights, remedies, and obligations, by
Nortel Networks without further notice and authorizes the
disclosure of this PLA and Supplements as necessary to
facilitate such sale.



     
In the event that the funds available to Customer
are at any time less than Fifty Million Canadian Dollars
(CDN$50,000,000), Customer will notify Nortel Networks in
writing and provide an irrevocable standby letter of credit
sufficient to cover the amount of its outstanding receivables
with Nortel Networks. Furthermore if Customer should issue
additional Orders, and Customer’s available funds remain at
less than



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Fifty Million Canadian Dollars (CDN$50,000,000),
Customer shall pay the total amount of the Order at the D-Date
or issue an additional letter of credit to cover the amount
provided in such additional Orders




 


		
	6.	
    Warranty




			
	 	a)	
    Nortel Networks warrants that Hardware
    i) is free from defects in materials and workmanship and
    ii) conforms to Nortel Networks’ published
    specifications. If Hardware does not function as warranted
    during the Warranty Period, Nortel Networks will determine
    to either i) make it do so, or ii) replace it with
    equivalent Hardware.
    
	 
	 	b)	
    Nortel Networks warrants that when Software
    is used in the specified operating environment it will conform
    to its published specifications. If Software does not function
    as warranted during the Warranty Period, Nortel Networks
    will provide a suitable fix or workaround as per applicable
    support plan as the case may be, or will replace free of charge
    the Software.
    
	 
	 	c)	
    Services will be performed in a professional and
    workmanlike manner. Services shall be warranted concurrently
    with the Products purchased by Customer, as per the attached
    warranty matrix. If Services are not performed as warranted
    and Nortel Networks is notified in writing by
    Customer, Nortel Networks will re-perform free of
    charge the non-conforming Services during the Warranty Period.
    
	 
	 	d)	
    The warranty period for Hardware and Software
    shall be the warranty period identified in the
    Nortel Networks warranty matrix in effect at the time of
    Customer’s Order (“Warranty Period”). In the
    event Nortel Networks determines that repair or replacement
    as set forth in this Section 6 cannot be made using
    commercially reasonable efforts and within a reasonable period
    of time, Nortel Networks will refund to Customer the price paid
    for the Product.
    
	 
	 	e)	
    No warranty is provided for i) supply items
    normally consumed during Product operation; ii) failures caused
    by non-Nortel Networks products; iii) failures caused by a
    Product’s inability to operate in conjunction with other
    Customer hardware or software; or iv) performance failures
    resulting from services not performed by Nortel Networks or
    Customer’s failure to purchase all necessary Products under
    this PLA. Warranty will be voided by misuse, accident, damage or
    modification, failure to maintain proper physical or operating
    environment or improper Customer maintenance. Software is not
    warranted to operate uninterrupted or error free. THESE
    WARRANTIES AND LIMITATIONS ARE CUSTOMER’S EXCLUSIVE
    WARRANTIES AND SOLE REMEDIES AND REPLACE ALL OTHER WARRANTIES OR
    CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO,
    THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND
    FITNESS FOR A PARTICULAR PURPOSE.
    
	 
	 	f)	
    Nortel Networks provides Third Party Vendor
    Items with warranties unless Nortel Networks specifies
    otherwise, in writing, prior to the acceptance of the Order.
    




 


		
	7.	
    Warranty Service



     
Nortel Networks provides certain types of
warranty repair and exchange service, without charge.
Nortel Networks will inform Customer of the types of
warranty services available to Customer consistent with
Nortel Networks standard practices and response times
through supplement that will be attached to this PLA and updated
from time to time and through the warranty matrix.
Nortel Networks Technical Assistance Services
(“TAS”) are available for warranty repair during the
Warranty Period at no charge for specified Products. When
Customer is required to return Hardware to Nortel Networks
for warranty service, Customer agrees to ship it prepaid and
suitably packaged to a location Nortel Networks designates.
Nortel Networks will return the Hardware to Customer at
Nortel Networks’ expense. Nortel Networks is
responsible for loss of, or damage to, Customer Hardware while
it is a) in Nortel Networks’ possession or
b) in transit back to Customer. Any returned Hardware
becomes Nortel Networks’ property. Subject to
Nortel Networks’ receipt of the exchanged Hardware,
its replacement becomes the Customer’s property. The
replacement Hardware may not be new but will be in working order
and at least equivalent to the item exchanged. The warranty



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period for the Hardware shall then be the greater
of ninety (90) days from the date of repair or replacement
or the remaining Hardware Warranty Period. Customer agrees to
ensure that exchanged Hardware is free of any legal obligations
or restrictions that prevent its exchange and represents that
all returned items are genuine and unaltered. Where applicable,
before Nortel Networks provides warranty services, Customer
agrees to a) follow the problem determination, problem
analysis, and warranty services request procedures that
Nortel Networks provides; b) secure all programs and
data contained in Hardware; and c) inform
Nortel Networks of changes in the Hardware’s location.
Post warranty services may be available at
Nortel Networks’ then-current prices.




 


		
	8.	
    Title and Risk of Loss



     
Title and risk of loss for ordered hardware shall
pass from Nortel Networks to Customer upon delivery to the
Customer designated location as specified on the Order.



 


		
	9.	
    Implementation and Installation
    Services



     
Customer agrees to provide sufficient, free and
safe access to Customer’s facilities and a suitable
physical environment meeting Nortel Networks’
specified requirements to permit the timely installation of
Products and/or performance of Services. Nortel Networks will
perform its responsibilities in accordance with the standard
Nortel Networks statement of work where applicable.
Nortel Networks will successfully complete its standard
installation and commissioning procedures before it considers
Products installed. Nortel Networks may make alterations to
any Product and Service as necessary to comply with
specifications, changed safety standards or governmental
regulations, to make a Product non-infringing with respect to
any patent, copyright or other proprietary interest, or to
otherwise improve a Product or Service. Customer is responsible
for i) the results obtained from the use of Products and
Services; ii) integration and interconnection with
Customer’s hardware and/or third party hardware and/or
systems; and iii) installation of Furnish-only Products.



     
When Installation has been successfully
completed, Nortel Networks shall give Customer written
confirmation of this completion. Customer and
Nortel Networks shall then immediately conduct the
Acceptance Tests and advise Nortel Networks in writing
whether or not Customer will accept the Products. If the
Products do not meet the Acceptance Tests, Customer shall give
Nortel Networks written notice thereof, specifying the
particulars of such deficiency, whereupon Nortel Networks shall
forthwith modify, repair or replace the Products so that they do
meet such requirements at its own cost and expense. The parties
shall then repeat all applicable Acceptance Tests so as to
ensure that the deficiencies have been rectified and no new
deficiencies have been introduced, whereupon Customer shall give
Nortel Networks written notice of acceptance of the
Products and the Warranty Period shall commence from the date of
such notice. If, after 60 days from the date of receipt of
the first deficiency notice, the Products still do not meet the
requirements of the Acceptance Tests, Customer shall have the
right to return the deficient Product and obtain a refund of all
amounts paid therefor.



 


		
	10.	
    Confidential Information




			
	 	a)	
    Confidential information
    (“Information”) means i) Software and Third Party
    Software; and ii) all business, technical, marketing and
    financial information and data that is clearly marked with
    a restrictive legend of the disclosing party
    (“Discloser”).
    
	 
	 	b)	
    The party receiving Information
    (“Recipient”) will use the same care and discretion,
    but not less than reasonable care, to avoid disclosure,
    publication or dissemination of Information as it uses with its
    own similar information that it does not wish to disclose,
    publish or disseminate. The Recipient may disclose Information
    only to i) its employees and employees of its parent,
    subsidiary or affiliated companies who have a need to know for
    purposes of carrying out this PLA; and ii) any other party
    with the Discloser’s prior written consent. Before
    disclosure to any of the above parties, the Recipient will have
    a written agreement with such party sufficient to require that
    party to treat Information in accordance with this PLA.
    
	 
	 	c)	
    The Recipient may disclose Information to the
    extent required by law. However, the Recipient must give the
    Discloser prompt notice and make a reasonable effort to obtain a
    protective order.
    




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	 	d)	
    No obligation of confidentiality applies to any
    Information that the Recipient i) already possesses without
    obligation of confidentiality; ii) develops independently;
    or iii) rightfully receives without obligations of
    confidentiality from a third party. No obligation of
    confidentiality applies to any Information that is, or becomes,
    publicly available without breach of this PLA.
    
	 
	 	e)	
    The release of any advertising or other publicity
    relating to this PLA requires the prior approval of both parties.
    




 


		
	11.	
    Patents and Copyrights



     
If a third party claims that Nortel Networks
Hardware or Software or Third Party Vendor Items provided to
Customer under this PLA infringes that party’s patent or
copyright, Nortel Networks will defend Customer against
that claim at Nortel Networks’ expense and pay all
costs and damages that a court finally awards or are agreed in
settlement, as well as reasonable lawyers’ fees, regardless
of the outcome of the claim, provided that Customer
a) promptly notifies Nortel Networks in writing of the
claim and b) allows Nortel Networks to control, and
cooperates with Nortel Networks in, the defense and any related
settlement negotiations. If such a claim is made or appears
likely to be made, Nortel Networks agrees to secure the
right for Customer to continue to use the Hardware or Software,
or to modify it, or to replace it with one that is equivalent.
If Nortel Networks determines that none of these
alternatives is reasonably available, Customer agrees to return
the Hardware or Software to Nortel Networks on Nortel
Networks’ written request. Nortel Networks will then
give Customer a credit equal to Customer’s net book value
for the Hardware or Software provided Customer has followed
generally-accepted accounting principles. Any such claims
against the Customer or liability for infringement arising from
use of the Hardware or Software following a request for return
by Nortel Networks are the sole responsibility of Customer.
This represents Nortel Networks’ entire obligation to
Customer regarding any claim of infringement.
Nortel Networks has no obligation regarding any claim based
on any of the following: a) anything Customer provides
which is incorporated into the Hardware or Software;
b) functionality provided by Nortel Networks at the
instruction of Customer; c) Customer’s modification of
Hardware or Software; d) the combination, operation, or use
of Hardware or Software with other products not provided by
Nortel Networks as a system, or the combination, operation, or
use of Hardware or Software with any product, data, or apparatus
that Nortel Networks did not provide.



 


		
	12.	
    Limitation of Liability



     
In no event shall Nortel Networks or its
agents or suppliers be liable to Customer for more than the
amount of any actual direct damages up to twice the amount
payable for the Products and Services to which are the subject
of the claim (provided that any sums which remain unpaid by
Customer in respect of such Products and Services shall be
deducted from the above amount) regardless of the cause and
whether arising in contract, tort (including negligence) or
otherwise. This limitation will not apply to claims for damages
for bodily injury (including death) and damage to real property
and tangible personal property for which Nortel Networks is
legally liable and payments as set forth in Section 11
Patents and Copyrights. IN NO EVENT SHALL Nortel Networks
OR ITS AGENTS OR SUPPLIERS BE LIABLE FOR ANY OF THE FOLLOWING:
a) DAMAGES BASED ON ANY THIRD PARTY CLAIM EXCEPT AS
EXPRESSLY PROVIDED HEREIN AND IN SECTION 11: b) LOSS
OF, OR DAMAGE TO, CUSTOMER’S RECORDS, FILES OR DATA;
OR c) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR
CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS OR SAVINGS), EVEN
IF Nortel Networks IS INFORMED OF THEIR POSSIBILITY EXCEPT
AS EXPRESSLY PROVIDED HEREIN AND IN SECTION 11.



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	13.	
    Notices




			
	 	a)	
    Any and all notices or other information required
    to be given by one of the parties to the other shall be deemed
    sufficiently given when forwarded by prepaid registered mail, by
    facsimile or like means or hand-delivered to the other party at
    the following address:
    





		
	 	
    Nortel Networks:
    





		
	 	
    Nortel Networks
    
	 	
    8200 Dixie Road
    
	 	
    Suite 100
    
	 	
    Brampton, Ontario
    
	 	
    L6T 5P6
    
	 	
    Attention: Legal Counsel
    
	 	
    Facsimile: 905-863-8335
    





		
	 	
    with a copy to:
    





		
	 	
    Nortel Networks
    
	 	
    2351 Alfred-Nobel Boul.
    
	 	
    Montreal, Quebec
    
	 	
    H4S 2A9
    
	 	
    Attention: Rejean Bourgault
    
	 	
    Facsimile: 514-818-3453
    
	 
	 	
    Customer:
    
	 	
    Microcell Connexions Inc.
    
	 	
    800 de La Gauchetiere West,
    
	 	
    Place Bonaventure
    
	 	
    C.P.: 9100
    
	 	
    Level: A
    
	 	
    Montreal, P.Q.,
    
	 	
    H5A 1K3
    
	 	
    Attention: V.-P. Network Planning and
    Implementation
    
	 	
    Facsimile: 514-846-7491
    





		
	 	
    with a copy to:
    





		
	 	
    Microcell Connexions Inc.
    
	 	
    1250 Rene Levesque Blvd. West
    
	 	
    20th floor
    
	 	
    Montreal, P.Q.,
    
	 	
    H3B 4W8
    
	 	
    Attention: Legal Department
    
	 	
    Facsimile: 514-846-6928
    





and such notices shall be deemed to have been
received five (5) business days after mailing if forwarded
by mail, and the following business day if forwarded by
facsimile or like means or hand-delivered.




			
	 	b)	
    The aforementioned address of either party may be
    changed at any time by giving 15-business-days prior notice to
    the other party in accordance with the foregoing.
    
	 
	 	c)	
    In the event of a generally prevailing labour
    dispute or other situation which will delay or impede the giving
    of notice by any such means, the notice shall be given by such
    mode as will be most reliable and expeditious and least affected
    by such dispute or situation.
    




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	14.	
    General




			
	 	a)	
    Customer agrees not to assign, or otherwise
    transfer this PLA or Customer’s rights under it, or
    delegate Customer’s obligations, without
    Nortel Networks’ prior written consent, and any
    attempt to do so is void. Customer represents and warrants that
    it is buying Products and/or Services for its own internal use
    and not for resale except when mutually agreed upon by the
    parties. Customer agrees to comply with all applicable laws
    including all applicable export and import laws and regulations.
    Neither party is responsible for failure to fulfill any
    obligations due to causes beyond its control. In the event that
    any provision of this PLA or portions thereof are held to be
    invalid or unenforceable, the remainder of this PLA will remain
    in full force and effect. Nortel Networks is an independent
    contractor and nothing in this PLA shall be considered to create
    or imply any other relationship between Customer and
    Nortel Networks.
    
	 
	 	b)	
    The terms and conditions of this PLA, including
    any Supplement(s), form the complete and exclusive agreement
    between Customer and Nortel Networks and replace any prior
    oral or written proposals, correspondence or communications
    regarding the subject matter hereof. In the event of
    a conflict between this PLA and a Supplement, the terms in
    any Supplement(s) prevail. Any changes to this PLA must be made
    by mutual agreement in writing. All Customer’s rights and
    all of Nortel Networks’ obligations are valid only in
    the country in which the Products and Services were supplied;
    the laws of the Province of Ontario govern this PLA, exclusive
    of its conflict of laws provisions; and nothing in this PLA
    affects any statutory rights of consumers that cannot be waived
    or limited by contract. The Parties have requested that this PLA
    be drawn up in the English language. Les Parties ont
    demandé que cette convention soit rédigée en
    langue anglaise.
    





MICROCELL CONNEXIONS INC.


 


		
	By: 	




Name: Rajiv Pancholy





Title: President and Chief Operating Officer





Address: 800 de la Gauchetiere street W Level A,
Montreal QC




 


		
	Date: 	




NORTEL NETWORKS LIMITED


 


		
	By: 	




Name: Doug Michaelides





Title: V.-P. & General Manager Canada Region





Address: 8200 Dixie Road, Suite: 100,





Brampton, Ontario




 


		
	Date: 	



     
The various Services that Customer may obtain
from Nortel Networks, associated pricing, and the manner in
which they will be provided are governed by this Services
Supplement (“Supplement”) as well as by the PLA unless
otherwise expressly stated. The terms and conditions provided in
this Supplement will apply solely to the provision of Services.



 


		
	1.	
    Definitions




			
	 	(a)	
    “Deliverables” means all Materials and
    Software delivered to Customer pursuant to an Order, but
    specifically excluding Tools.
    
	 
	 	(b)	
    “Materials” means any and all designs,
    documentation and other work product prepared by
    Nortel Networks and delivered to Customer pursuant to an
    Order (and specifically excluding Software).
    
	 
	 	(c)	
    “Statement of Work” is a document,
    prepared by Nortel Networks, describing the scope of work,
    estimated schedule, prices, Deliverables, and other relevant
    terms specific to a Service, which may, from time to time, be
    mutually agreed to in writing by Customer and
    Nortel Networks. A Statement of Work shall be governed by
    the terms and conditions of, and constitute a part of, this
    Supplement.
    
	 
	 	(d)	
    “Services Descriptions” means
    Nortel Networks published specifications for certain
    Services in effect at the time Nortel Networks accepts an
    Order.
    
	 
	 	(e)	
    “Tools” mean any diagnostics,
    documentation, test equipment or other items used by
    Nortel Networks in the performance of the Services.
    




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	2.	
    Charges and Payment



     
Fees for Services may be based on a fixed price,
time and materials, time and materials with deliverables or
other commercial arrangement, as specified in an Order. If
specified in writing by Nortel Networks as excluded from a
fixed price, Customer will reimburse Nortel Networks for
all reasonable out-of-pocket expenses incurred by
Nortel Networks in performing the Services (including,
without limitation, all reasonable travel, meal, lodging and
mileage expenses) plus standard and applicable administration
fees. All fees for Services are subject to annual review and
adjustment by Nortel Networks. Unless otherwise provided in
a valid Nortel Networks quotation, proposal or Statement of
Work, Nortel Networks shall invoice Customer one hundred
percent of the price of the Services upon completion unless the
Service continues beyond thirty days, in which case
Nortel Networks shall invoice Customer at the end of each
month for the Services performed in that month. Certain ongoing
Services (for example maintenance and managed services) ordered
by Customer may be invoiced in advance of the performance of
such Services by Nortel Networks.



 


		
	3.	
    Changes to Orders



     
The parties may, by mutual agreement, make
changes to the scope of work, schedule, prices, deliverables or
other substantive aspects of the Services (“Change”).
The party asking for a Change shall describe in writing the
details of the requested Change (“Change Order
Request”). Nortel Networks shall provide in writing to
Customer a summary of any and all adjustments to the charges and
other changes resulting from the Change Order Request. In no
event shall any Change be effective or acted upon in any way
until such time as (i) an authorized representative of both
parties has agreed to the terms of the Change Order Request in
writing and (ii) Nortel Networks receives an Order
from Customer for any additional amounts resulting from the
Change Order Request.



 


		
	4.	
    Customer Responsibilities



     
Customer agrees to cooperate with
Nortel Networks in the performance by Nortel Networks of
the Services, including, without limitation, providing Nortel
Networks with sufficient, free and timely access and
availability, as required by Nortel Networks, to
facilities, data, information and personnel of Customer;
including the recovery by Nortel Networks of any Tools. In
addition, Customer shall be responsible for the accuracy and
completeness of all data and information that it provides or
causes to be provided to Nortel Networks. In the event that
there are any delays by Customer in fulfilling its
responsibilities as stated above, or there are errors or
inaccuracies in the information provided, Nortel Networks
shall be entitled to appropriate schedule and pricing
adjustments. It is understood and agreed that the Services
provided by Nortel Networks may include the advice and
recommendations of Nortel Networks, but all decisions in
connection with the implementation of such advice and
recommendations shall be the sole responsibility of, and made
by, Customer.



 


		
	5.	
    Personnel



     
Nortel Networks and Customer are each
responsible for the supervision, direction, compensation and
control of their own employees and subcontractors.
Nortel Networks may subcontract any portion or all of the
Services to subcontractors selected by Nortel Networks.
Neither party shall knowingly solicit to hire employees of the
other party with whom it had contact as a result of the
performance of the Services for a period ending six months after
completion of the Services. Neither party shall be precluded
from conducting generalized searches for employees (and hiring
those employees who respond to generalized searches) either
through the use of search firms or advertisements in the media,
provided that searches are not specifically targeted to
employees providing Services.



 


		
	6.	
    Intellectual Property Rights




			
	 	(a)	
    Nortel Networks, on behalf of itself and its
    subcontractors, reserves all proprietary rights in and to
    (i) all methodologies, designs, engineering details, and
    other data pertaining to the Services and the
    




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    Materials delivered, (ii) all original
    works, computer programs, updates developed in the course of
    providing the Service (except Customer’s developed
    programs), (iii) discoveries, inventions, patents, know-how
    and techniques arising out of the Services and (iv) any and
    all products (including software and equipment) developed as a
    result of the Services. The performance by Nortel Networks
    of Services shall not be deemed work for hire.
    
	 
	 	(b)	
    Nortel Networks grants to Customer a
    perpetual, non-exclusive, world-wide, paid up license to use,
    copy and modify the Materials produced by Nortel Networks and
    delivered to Customer in the performance of Services solely for
    Customer’s internal business purposes.
    
	 
	 	(c)	
    It is understood between the parties that
    Nortel Networks will employ its know-how, techniques,
    concepts, experience and expertise, as well as all other
    intellectual property, including that to which it reserves its
    rights hereunder, to perform services the same as or similar to
    the Services for others.
    




 


		
	7.	
    Maintenance Services



     
Nortel Networks provides Product maintenance
Services either at Customer’s location or at a service
center to keep Products in, or restore them to, conformance with
published specifications.




			
	 	(a)	
    To be eligible for maintenance Services, the
    Products must be in good operating condition and at revision
    levels supported by Nortel Networks.
    
	 
	 	(b)	
    Relocation of Products under maintenance Services
    may result in adjustments to the price and response times.
    Continued maintenance Services for such Products are subject to
    reasonable availability from Nortel Networks or an
    authorized maintenance service provider.
    
	 
	 	(c)	
    The warranty service terms in Section 7
    Warranty Service and exclusions in Section 6(e) of the PLA
    shall also apply to post warranty Product maintenance Services.
    




 


		
	8.	
    General



     
In the event of a conflict between this
Supplement and any other documents attached hereto or referenced
herein, the terms in this Supplement prevail.



 


		
	9.	
    Pricing and Available Services



     
The Services to be provided and/or the applicable
pricing shall be as set forth in (i) an accepted Nortel
Network’s proposal, (ii) a Statement of Work or (iii)
the Services Descriptions.



 


		
	10.	
    Survival



     
Notwithstanding the termination or expiry of this
Supplement, or of the PLA, the provisions of articles 6, 7,
10, 11 and 12 of the PLA and of articles 2 and 6 of this
Supplement and all its consequent rights and obligations shall
survive.




MICROCELL CONNEXIONS INC.


 


		
	By: 	




Name: Rajiv Pancholy





Title: President and Chief Operating Officer





Address: 800 de la Gauchetiere street W Level A,
Montreal QC




 


		
	Date: 	




NORTEL NETWORKS LIMITED


 


		
	By: 	




Name: Doug Michaelides





Title: V.-P. & General Manager Canada Region





Address: 8200 Dixie Road, Suite: 100,





Brampton, Ontario




 


		
	Date: 	



     
Products may be purchased only in countries where
Nortel Networks makes these products available for purchase and
use.



9








 



     
The following Hardware and Software items shall
have the corresponding Warranty Periods:




	 	 	 	 	 
	Carrier Products		Hardware		Software
	
		
		

	
    DMS, Optical Networks, AccessNode and Wireless
    product families including but not limited to IN, IWF and PCU
    	 	
    12 months from D-date for products installed
    by Customer and from K-date for products installed by Nortel
    Networks
    	 	
    12 months from D-date for products installed
    by Customer and from K-date for products installed by Nortel
    Networks
    




     
This warranty matrix may be revised from time to
time.



10