Exhibit 10.12
PRIVATE LABEL AGREEMENT
THIS PRIVATE LABEL AGREEMENT, including the Exhibits ("Agreement"), effective as
of October 17, 1995 ("Effective Date"), is hereby made by and between Cisco
Systems, Inc., a California corporation, having principal offices at 000 Xxxx
Xxxxxx Xxxxx, Xxx Xxxx, Xxxxxxxxxx 00000-0000 ("Cisco") and Frontier Software
Development, Inc., a Delaware corporation, having principal offices at 000
Xxxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000 ("Frontier").
1. SALES AND PURCHASES OF PRODUCTS.
1.1 PRODUCTS. Subject to the terms and conditions of this Agreement,
Frontier agrees to sell to Cisco the Frontier products ("Products") which Cisco
may order from Frontier, as described in the Price Schedule attached and
incorporated herein as Exhibit A, as it may be amended from time to time in
accordance with the terms hereof. Products include hardware products and
software imbedded in hardware (or provided separately on disks or other media),
user documentation, packaging and any enhancements, modifications, updates, bug
fixes or releases related thereto ("Software"). Products shall be manufactured
by Frontier according to the functional, technical and other specifications for
each Product set forth in Exhibit C as modified from time to time by written
agreement of the parties ("Specifications"). Subject to the rights and licenses
granted to Cisco in this Agreement, Frontier shall retain ownership in and to
all Product intellectual property that was developed or acquired by Frontier.
1.2 NEW PRODUCT INCLUSION. Frontier agrees to keep Cisco informed of
any new products or improvements to existing Products. Frontier shall use best
efforts to provide Cisco with ninety (90) days written notice (prior to
shipment) of any upgrades to a Product that will alter the form, fit, function
or price of that Product. Cisco will notify Frontier if it wishes to add a new
product or series of products of Frontier's to this Agreement. Cisco and
Frontier shall then proceed to establish pricing and delivery schedules for each
of such new Product. Upon agreement of these items, such product(s) shall be
considered Products under this Agreement, and shall be purchased and sold under
the terms and conditions of this Agreement. Frontier shall notify Cisco when
Frontier is first reasonably prepared to ship more advanced technology of a
similar Product category to customers, and thereafter Cisco may convert any or
all of its future orders of Product to the more advanced technology.
1.3 PRODUCT UPGRADES. All upgrades, Product enhancements and bug fixes
for the Software will be made available to Cisco no later than the date
Frontier's related standard products have been released for shipment and at no
additional charge unless provided Frontier has made such Product upgrades and/or
enhancements available to its general customer base free of charge. In the event
Frontier has charged or plans to charge its general customer base for Product
upgrades and/or enhancements, Frontier reserves the right to charge Cisco a
price to be mutually determined prior to distribution of such Product upgrades
and/or enhancements.
1.4 PROJECT MANAGERS. Each party will appoint a single project manager
("Project Manager") and provide written notification to the other party of the
name of the Project Manager
within five (5) days of the Effective Date. The Project Managers will act as
liaisons between the parties with respect to their respective performances of
this Agreement and shall provide the parties from time to time with the names
and telephone numbers of additional specific contact persons (e.g., to
communicate specific information regarding support, enhancements, etc.) when
such direct contact is preferable. In the event that either party appoints a new
Project Manager, such party will promptly notify the other.
2. OWNERSHIP; GRANT OF RIGHTS
2.1 OWNERSHIP. As between the parties, Frontier retains title to and
ownership of, and all proprietary rights with respect to, the Software.
2.2 OEM RIGHT. Frontier hereby grants Cisco a nonexclusive, worldwide,
royalty-free right and license to promote, market, resell and distribute the
Products as stand-alone products or incorporated into or in connection with
Cisco's products.
2.3 SOFTWARE LICENSE Frontier hereby grants Cisco a nonexclusive,
worldwide, royalty-free (except as provided below) license to use the Software
(in object code form) subject to the following conditions and for the following
purposes:
(a) For promotion, marketing and distribution to resellers and end
users in connection with Cisco's distribution of the Products;
and
(b) To provide customer support pursuant to Section 8.
2.4 CISCO PROPERTY.
(a) All property, including without limitation designs or
materials, furnished to Frontier by Cisco or paid for by Cisco in
connection with this Agreement (collectively "Cisco Property") shall:
(i) Be clearly marked or tagged as the property
of Cisco;
(ii) Be and remain personal property, and not
become a fixture to real property;
(iii) Be subject to inspection by Cisco at a
mutually agreed upon time;
(iv) Be used only in filling purchase orders from
Cisco and subcontractors, if any, and in
providing service or support for the
Products;
(v) Be kept free of liens and encumbrances;
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(vi) Be kept separate from other materials,
tools, or property of Frontier or held by
Frontier; and
(vii) Not be modified in any manner by Frontier.
(b) Cisco shall retain all rights, title and interest in the
Cisco Property, and Frontier agrees to treat and maintain the
Cisco Property with the same degree of care as Frontier uses
with respect to its own valuable equipment. Frontier shall
bear all risk of loss or damage to Cisco Property until it is
returned to Cisco. Upon Cisco's request, Frontier shall
deliver all Cisco Property to Cisco in good condition, normal
wear and tear excepted, without cost to Cisco (exclusive of
freight costs); Cisco shall determine the manner and procedure
for returning the Cisco Property, and shall pay the
corresponding freight costs. Frontier waives any legal or
equitable right it may have to withhold Cisco Property, and
Frontier agrees to execute all documents, or instruments
evidencing Cisco's ownership of the Cisco Property as Cisco
may from time to time request.
3. PRICES; PAYMENT
3.1 PRICES. The prices to Cisco of the Products shall be the prices
contained in the attached Exhibit A less a [*] calculated in accordance with
Exhibit A. Such prices shall be fixed for one (1) year, commencing with the
Effective Date of this Agreement, except that if Frontier's price for a
comparable standard product is reduced, such reduction shall be immediately
effective and shall apply to all unshipped orders of that Product. Sixty (60)
days prior to expiration of the first year an any subsequent years of the
Agreement, the parties shall meet to negotiate, in good faith, pricing and [*]
to be applied to the Products for the ensuing year of the Agreement. All prices
are F.O.B. Frontiers facility in Chelmsford, Massachusetts.
3.2 COST REDUCTIONS. Frontier agrees to work on achieving cost savings
on both materials and processes. In the event cost savings are identified, and
the parties elect to institute any such savings, the parties agree to share the
benefits which shall result from the instituted cost savings. Cost savings
rights and obligations shall apply to materials and processes related rights and
obligations shall apply to materials and processes related to Products
manufactured by Frontier as well as those manufactured by Cisco upon Frontier's
grant of Manufacturing Rights to Cisco pursuant to Section 10 of the Agreement.
In addition, Frontier agree to institute any cost reduction proposals reasonably
suggested by Cisco.
3.3 TAXES. Prices stated in Exhibit A are in U.S. dollars and do not
include applicable U.S. federal or state sales or use taxes which shall be paid
by Cisco if separately indicated on the invoice for the applicable Product
shipment, but do include any duties, export or import charges and the like
unless Cisco requests direct shipment to a non U.S. location.
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[*] indicates material that has been omitted and for which confidential
treatment has been requested. All such omitted material has been filed with the
Securities and Exchange Commission pursuant to Rule 406 promulgated under the
Securities Act of 1933, as amended.
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3.4 PAYMENT TERMS. Frontier will invoice Cisco with each shipment and
payment terms will be the full invoiced amount payable within [*] after Cisco
receives the invoice and shipment [*]. Cisco shall be entitled to a [*] if
payment is made within [*] after Cisco receives the invoice. No invoice shall be
submitted to Cisco until shipment to Cisco of the items covered by such invoice.
4. PURCHASE ORDERS
4.1 PURCHASE ORDERS. Cisco purchase orders for Products shall be
submitted to Frontier in writing. Each purchase order shall include:
Identification of Products ordered;
Quantity to be purchased;
Price of Products ordered;
Requested delivery dates;
Shipping instructions.
4.2 FORECASTS. Cisco will provide Frontier with nonbinding one hundred
twenty (120) day forecasts of its requirements for Products on a monthly basis.
4.3 PLACEMENT BY CISCO. All purchase orders and invoices under this
Agreement shall be subject only to the terms and conditions hereof. In the event
the terms of any such purchase order, confirmation or similar document conflict
with or are additional to the terms of this Agreement, the terms of this
Agreement alone shall apply and shall govern regardless of execution of such
document by one or both parties, except that the parties may agree to negotiate
non-preprinted terms which shall be effective if executed by both parties. Any
other Frontier terms and conditions shall not apply to this Agreement or the
purchase orders.
4.4 ACCEPTANCE BY FRONTIER. Subject to the establishment of mutually
reasonably agreeable delivery dates, Frontier shall accept and acknowledge in
writing all purchase orders submitted by Cisco within [*] after receipt thereof.
Notwithstanding the foregoing, Frontier shall accept all Cisco purchase orders
requesting shipment [*] (or greater) from the date of Frontier's receipt of the
purchase order and shall keep a sufficient supply of the Products on hand to
enable Frontier to timely fill all such purchase orders. Each acknowledgment
shall include a firm shipping date for the Products ordered in the purchase
order. "Working day" shall mean a regular week day on which Cisco is open for
business.
4.5 [*]. Cisco reserves the right to [*] delivery of any purchase
orders, or part of any purchase order at any time prior to [*] from the
scheduled delivery
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[*] indicates material that has been omitted and for which confidential
treatment has been requested. All such omitted material has been filed with the
Securities and Exchange Commission pursuant to Rule 406 promulgated under the
Securities Act of 1933, as amended.
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date. Cisco may [*] any purchase orders, or any part of any purchase order at
any time prior to the scheduled delivery date, however, Cisco shall be limited
to [*] per purchase order, and such request, if made within [*] of the initially
scheduled delivery date, may not extend beyond [*] from the initially scheduled
delivery date. [*] made prior to [*] of the initially scheduled delivery date
shall be subject to the following limitations and/or penalties:
[*] TERMS
DAYS FROM SCHEDULED DELIVERY DATE PENALTY CHARGES
Less than/equal to [*], but greater than [*] [*] [*]
Less than/equal to [*], but greater than [*] [*] [*]
Less than/equal to [*], but greater than [*] [*] [*]
Frontier will use its best efforts to meet any scheduled ship dates,
but reserves the right to schedule, reschedule or make partial shipments at its
discretion. When Products are in short supply, Frontier will use its best
efforts to allocate equitably among all customers.
Notwithstanding anything to the contrary in this Section 4.5, in the
event Frontier reschedules the delivery of any Product order, or part thereof by
twenty-one (21) days or more, or if Frontier is twenty-one(21) days or more late
in delivering a Product order or part thereof, Cisco shall have the right to
cancel any such rescheduled or late order without penalty.
4.6 ORDER INCREASES. Upon written request from Cisco, Frontier shall
use best efforts to increase the quantities of Product to be delivered to Cisco
under existing purchase orders as follows: (i) from [*] prior to a scheduled
shipping date, Frontier will increase quantities of Products by up to [*]; (ii)
from [*] prior to a scheduled shipping date, Frontier will increase quantities
of Products by up to [*]; and (iii) more than [*] prior to a scheduled shipping
date, Frontier will increase quantities of Products by up to [*].
4.7 RUSH ORDERS. Frontier shall use its best efforts to meet Cisco's
requirements for reasonable rush orders for Products requiring immediate
delivery within [*]. The parties will negotiate in good faith the prices for
such rush orders, taking into consideration Frontier's available inventory and
additional shipping and personnel expense necessary.
4.8 DISCONTINUANCE. In the event that Frontier intends to discontinue
the manufacture and sale of any Product, Frontier shall give at least [*] prior
written notice to Cisco. During such [*] period (the "Discontinuance Period"),
Cisco may place purchase orders for such Product pursuant to this Agreement,
provided however, the last delivery date for such Product shall not be more than
[*] after the end of such Discontinuance Period. In no event shall Frontier sell
such Product to any other of its customers after it stops selling such Product
to Cisco.
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[*] indicates material that has been omitted and for which confidential
treatment has been requested. All such omitted material has been filed with the
Securities and Exchange Commission pursuant to Rule 406 promulgated under the
Securities Act of 1933, as amended.
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5. PRODUCT ACCEPTANCE AND QUALITY
5.1 INSPECTION AND ACCEPTANCE BY CISCO. Notwithstanding any prior
inspection or payment by Cisco, all Products will be subject to final inspection
and acceptance at Cisco's specified destination after delivery by Frontier. If
and when Frontier qualifies to bypass Cisco's incoming inspection requirement
pursuant to Cisco's Quality Program described in Exhibit G, then Frontier agrees
that any Product which Cisco determines to be nonoperable upon its removal from
its original packaging and initial checkout ("DOA"), whether discovered by
Cisco, its subcontractor or its customer, will be treated as though discovered
during Cisco's final acceptance process and shall be rejectable pursuant to the
terms hereof.
5.2 REJECTION. In case any Product is defective in material or
workmanship, or otherwise not in conformity with the requirements of Cisco's
applicable Specifications, Cisco will have the right, at its sole option, to
reject such Product; to require correction of such Product; to accept such
Product with an adjustment in price; or to return such Product for credit or
refund. Any Product that has been rejected or required to be corrected must
be replaced or corrected by and at the expense of Frontier on a best efforts
basis within [*] after receipt by Frontier of the rejected material. If,
after being requested by Cisco, Frontier fails to promptly replace or correct
any defective item, then Cisco shall have the right, at its sole option, to
(i) replace or correct such Product and charge to Frontier the cost
occasioned thereby, or (ii) without further notice, cancel the applicable
purchase order relative to the rejected material without penalty or this
Agreement for default in accordance with Section 14 below and require refund
of any payments made relative to the rejected purchase order material. In the
event Cisco returns Products due to perceived defects in material and
workmanship and/or nonconformity to Specifications and Frontier determines,
upon its examination and testing of the Products, that Cisco has currently
rejected the Products which are not defective or in conformity to the
Specifications (categorized as "No Problem Found" or "NPF"), Frontier retains
the right to charge Cisco a reasonable fee to cover the necessary processing
and testing of the returned units. Cisco shall further credit Frontier for
any reasonable fees that Frontier may have paid to deliver the replacement
Products to Cisco per Cisco's request. Frontier agrees to provide Cisco with
the review documentation to validate its findings with respect to NPF's. No
fees or credits shall be paid by Cisco unless and until Cisco has validated
Frontier's NPF findings.
5.3 PACKING. Unless otherwise specified by Cisco, Frontier will package
and pack all goods in a manner which is (i) in accordance with good commercial
practice, (ii) acceptable to common carriers for shipment at the lowest rate for
the particular goods, (iii) in accordance with I.C.C. regulations, and (iv)
adequate to insure safe arrival of the goods at the named destination. Frontier
will xxxx all containers with necessary lifting, handling and shipping
information and with purchase order numbers, date of shipment, and the names of
the consignee and consignor. An itemized packing list must accompany each
shipment which shall include (i) prominently the
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[*] indicates material that has been omitted and for which confidential
treatment has been requested. All such omitted material has been filed with the
Securities and Exchange Commission pursuant to Rule 406 promulgated under the
Securities Act of 1933, as amended.
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purchase order number and (ii) the description, part number, revision level, and
quantity of the Products so shipped.
5.4 LABELING. Frontier shall label and package all Products pursuant
to the specifications set forth in Exhibit H, which may be amended by Cisco
from time to time upon [*] notice. Frontier acknowledges and agrees that,
except as necessary to fulfill its obligations under this Agreement, it
obtains no rights in Cisco's trade names, trademarks, service marks or other
designations and shall not use any of the Cisco material provided pursuant to
this Section 5.4 other than as expressly permitted herein.
5.5 RETURN PROCEDURE. In the event Cisco rejects Product due to defects
in workmanship or non-conformance to Specifications, Cisco may, at its option,
return the Product to Frontier F.O.B. Cisco's location or retain such Product,
at Frontier's expense, and withhold payment pending Frontier's instructions.
6. PRODUCT SPECIFICATIONS; CHANGES
6.1 SPECIFICATIONS. Frontier agrees to supply materials acceptable to
Cisco's Specifications. Frontier shall not make any changes in the form, fit,
function, design or appearance of the Product purchased hereunder, or to any
Specifications for any Product irrespective of impact on form, fit, or function,
without Cisco's prior written approval.
6.2 PRE-SHIPMENT TESTING. Prior to delivery, Frontier shall test all
Products in accordance with the test procedure set forth in Exhibit D ("Test
Procedure"), and shall not ship Products which fail to meet the Specifications.
Cisco may from time to time and at a mutually acceptable time send its quality
control personnel to Frontier's factory to assist in or observe the testing. In
addition, Cisco may, from time to time, request modifications to Frontier's test
procedure, where repetitive failure to meet Specifications has been noted on
shipped equipment. Frontier shall not unreasonably withhold modifications of
this procedure.
6.3 ENGINEERING CHANGE APPROVAL. Frontier shall not make any changes to
any production process, or the controlled process parameters or sources, types
or grade classifications of materials used, which alter the form, fit or
function of the Product without first obtaining from Cisco an engineering change
approval. Within one (1) working day after learning of any bug or other problem
in a Product which will or already has resulted in an impact to the installed
customer base of such Product, and in any event no later than at the time an
engineering request is made, Frontier will notify Cisco of such problem. For
purposes of the immediately preceding sentence in this Section 6.3, "impact"
shall mean that a significant number of Frontier's customers have been affected
by a bug or any other problem with the Product, and have notified Frontier of
the respective bug or problem. Frontier shall submit a request to make a change
containing engineering data in support of the request. Within ten (10) working
days of receiving
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[*] indicates material that has been omitted and for which confidential
treatment has been requested. All such omitted material has been filed with the
Securities and Exchange Commission pursuant to Rule 406 promulgated under the
Securities Act of 1933, as amended.
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such request, Cisco shall respond to Frontier's request and shall either (i)
approve the change, (ii) disapprove the change, or (iii) extend the deadline for
the approval or disapproval period for an additional twenty (20) working days.
6.4 CISCO'S ENGINEERING CHANGE REQUEST. When an engineering change
is required by Cisco, Cisco shall provide Frontier all applicable
documentation, specifications and requested effective date of such
engineering change. Frontier will respond initially within [*], advising
Cisco as to (i) implementation and the effective date of such change, (ii)
associated costs and effect to on-hand materials, (iii) on order materials,
work in process, and (iv) the impact of the change upon existing Product
pricing and shipment schedules for the entire period for which purchase
orders are outstanding. Frontier shall also identify any materials issue or
process issue that modifies the shipment schedule that was in effect
immediately prior to the engineering change.
6.5 Where a requested change may create scrap costs, Frontier agrees to
stop work in process and/or orders for materials within [*] of notification by
Cisco. Materials on-hand or on order and work in process which has become
obsolete as a result of the engineering change shall be treated in the same
manner as termination of a purchase order in accordance with Section 14.6
hereunder. Cisco must issue requisite documentation and purchase order release
changes before Frontier will begin the change implementation.
7. END-USER DOCUMENTATION
7.1 SCOPE. Frontier agrees to develop, write, print, manufacture,
maintain, and ship all Product-related end-user documentation so that it will
have a Cisco "look-and-feel" (as defined below).
(a) End-user Product documentation content is determined by
the Product, and Cisco's documentation guidelines. Documentation will
include, without limitation, user guides, hardware installation guides,
software configuration and command reference guides, software release
notes and hardware errata.
(b) Frontier hereby grants to Cisco, for the term of the
Agreement (inclusive of any extensions or associated survival periods),
and pursuant to the terms and conditions of this Section 7, a
royalty-free, non-exclusive, non-transferable license to use, modify
and distribute any of Frontier's standard documentation which has been
incorporated into the "look and feel" documentation developed by
Frontier for Cisco hereunder (the "Cisco Documentation"). While
Frontier shall include all proprietary rights notices on Frontier's
standard documentation during the development process of the Cisco
Documentation, Cisco retains the right to modify the Cisco
Documentation subsequent to Frontier's delivery of the Cisco
Documentation to Cisco, and, as such, shall
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[*] indicates material that has been omitted and for which confidential
treatment has been requested. All such omitted material has been filed with the
Securities and Exchange Commission pursuant to Rule 406 promulgated under the
Securities Act of 1933, as amended.
8
incorporate any such proprietary rights notices which may have been
removed by Cisco during its modification of the Cisco Documentation
prior to distribution of the Cisco Documentation to its end user
customers.
(c) Cisco "look-and-feel" means utilizing and adhering to
Cisco's then current customer documentation templates, style guide, and
printing standards, as defined and specified from time to time by
Cisco.
(d) Cisco will provide at its expense all required templates,
style guides, documentation samples, and printing guidelines.
(e) Frontier agrees not to modify Cisco documentation
templates.
(f) Frontier will develop and maintain all end-user
documentation in [*] templates provided by Cisco. Frontier will
provide any required technical illustrations in [*] format. Frontier
will purchase and maintain the [*] and [*] tools at its own expense.
(g) Cisco will provide reasonable editorial assistance at
alpha, beta, and final draft stages to assist Frontier in complying
with the Cisco "look and feel."
(h) Frontier will provide one (1) printed copy of each
end-user manual with each Product shipped.
7.2 DOCUMENTATION REVIEW CYCLES. Cisco will review all end-user
documentation at alpha, beta, and final draft stages and will provide markups to
Frontier in hard-copy or electronic medium for incorporation into the
documentation. Cisco retains sole and final sign-off approval at the
above-mentioned draft stages for all end-user documentation.
7.3 ELECTRONIC PUBLICATION. Frontier will provide an electronic copy of
the end-user documentation files (including all illustrations) at alpha, beta
and final sign-off stages, and prior to any subsequent revision cycle, for the
life of the manual(s). Cisco shall have the exclusive right to distribute
manual(s) electronically.
7.4 OWNERSHIP. Cisco shall own all right, title and interest in the
Cisco Documentation provided, however, that Frontier retains all rights, title
and interest in the content of Frontier's standard documentation which has been
utilized in the development of the Cisco Documentation. Frontier hereby assigns
to Cisco all right, title and interest to the Cisco Documentation and shall
execute such instruments as Cisco may reasonably may request to effect and
record such assignment. Frontier may not distribute the Cisco Documentation in
any format or medium or for any purpose to any third party without prior written
consent of Cisco. Upon termination or expiration of the Agreement, the Parties
shall cease any development and
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[*] indicates material that has been omitted and for which confidential
treatment has been requested. All such omitted material has been filed with the
Securities and Exchange Commission pursuant to Rule 406 promulgated under the
Securities Act of 1933, as amended.
9
distribution of the Cisco Documentation, except to the extent that Cisco retains
survival rights to distribute any Cisco Documentation with Products remaining in
Cisco's inventory at the time of termination or expiration that are subsequently
sold by Cisco during the survival period of the Agreement and for technical and
support purposes for the installed base of Products. The Parties further agree,
upon termination or expiration, to meet to determine the appropriate disposition
for all work in process and excess, unreserved Cisco Documentation which remains
in either Cisco's inventory or at Frontier's manufacturing facility awaiting
completion and/or delivery to Cisco at the time of termination or expiration.
7.5 PRINT QUALITY. Cisco's written approval is required prior to
printing any end-user documentation with Cisco "look-and-feel."
(a) Cisco retains the right to review and approve any print
vendor selected by Frontier for adherence to Cisco quality practices
and competitive pricing.
(b) Four-color process covers: Cisco will provide at its
expense all film for four-color covers. Frontier will provide, at is
expense, a trimmed composite blueline for Cisco's approval prior to
printing any color process covers.
(c) Self-cover manuals (one-color): Frontier will provide a
trimmed blueline for Cisco approval prior to printing.
(d) Cisco may, at its discretion, require a first-article
prior to accepting delivery of any end-user documentation.
7.6 REVISION CYCLES. Once documentation is "in-print," Frontier will
revise the printed end-user manual(s) as necessary to accurately support the
Product. Frontier and Cisco will agree upon a reasonable revision cycle,
determined by anticipated Product enhancements, documentation errors, and/or
changes.
(a) Frontier will issue Software release notes or hardware
errata in a timely manner, and ship them with their related Cisco
Documentation.
(b) Frontier will notify Cisco within thirty (30) days of
Frontier's intent to revise a printed document.
(c) Document revisions will include all relevant Product
enhancements and new technical information.
(d) Document revisions will receive alpha, beta, and final
draft reviews by Cisco. Cisco retains sole and final draft sign-off
approval.
(e) With each revision, Frontier will provide electronic
copies of files, as specified in Section 7.3.
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(f) Frontier will reprint revised documentation as specified in Section
7.5.
7.7 DOCUMENTATION LIFE-CYCLE. Frontier agrees to maintain end-user
documentation in print until Cisco notifies Frontier it will cease distributing
a particular Product. Frontier will manage the physical documentation inventory.
7.8 DOCUMENTATION NRE. In consideration of Frontier's creation of
the Cisco Documentation hereunder, Cisco agrees to pay Frontier the amount of
[*] upon completion and Cisco's acceptance of the Cisco Documentation.
Cisco further agrees to pay for additions,/modifications to existing Cisco
Documentation or for the creation of new documentation, both of which may be
required as a result of Frontier's addition of new Products to the Agreement,
provided, however, that (i) Cisco has requested and/or authorized the
modifications of the existing documentation or the creation of any new
documentation, and (ii) specification/technical requirements have been
provided by Cisco to Frontier, and (iii) the Parties have reached agreement
with respect to the price to be paid to Frontier for the documentation prior
to Frontier's initiation of any such work.
8. SUPPORT
8.1 CUSTOMER SUPPORT. Cisco will provide all first and second level
customer support in the same manner that it provides such support for its other
similar products. Frontier will provide third-level or other customer support
[*] to Cisco by telephone and e-mail seven days a week, twenty-four hours per
day with a maximum one hour telephone response time. On-site third level problem
support shall be as mutually agreed by Cisco and Frontier, but at a minimum will
include troubleshooting and providing bug fixes in the Software and hardware of
the Product. Cisco shall provide Frontier feedback on any software bugs and
potential fixes, which will then be incorporated into the Software.
8.2 TECHNICAL SUPPORT. Frontier agrees to regularly supply Cisco with
all bug notes or other documentation defining the relevant hardware and software
information, symptoms, solutions or work-arounds for Product problems which
affect form, fit or function. During the term of this Agreement, Frontier will
provide such support to Cisco [*]. This information will be provided via an
electronic means (e.g. an FTP server).
8.3 ENGINEERING CHANGES. Frontier agrees to provide Cisco, with new
releases of maintenance modifications or engineering changes approved by Cisco
pursuant to Section 6.3, suitable for preparation by Cisco as a Product for
distribution to Cisco's customers, at Cisco's discretion. Cisco may request that
Frontier update all of Cisco's customer support documentation and Product
inventory to incorporate modifications or changes. In addition, if the parties
mutually determine that Products or Product parts must be replaced in the field
(including
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[*] indicates material that has been omitted and for which confidential
treatment has been requested. All such omitted material has been filed with the
Securities and Exchange Commission pursuant to Rule 406 promulgated under the
Securities Act of 1933, as amended.
11
without limitation to rectify epidemic failure), Frontier will, at a minimum,
provide retrofit kits to Cisco [*].
8.4 REPAIR PROCEDURE. After expiration of the Warranty Period,
Frontier will continue to provide repair for Products and Product parts.
Repair is defined as repairing the part or Product and bringing it up to the
current engineering change. Frontier will track Products returned for repair
by serial number and will ship repaired parts within five (5) days from
receipt. Cisco shall be responsible for all inbound and outbound freight
associated with Product repair. Each part will be individually packaged and
meet Cisco packaging specifications. Frontier will provide quarterly part
failure reports on a best efforts basis. Such part failure reports will
include, by serial number, each part repaired, failure symptom, and
determined failure. Frontier will use a [*] or better within the U.S. and
[*] or better internationally (if applicable). Prices and charges for repair
of parts and Products and for spare parts are set forth in Exhibit E.
8.5 EMERGENCY PART SHIPMENT PROCEDURE. In cases of emergency, as
reasonably determined by Cisco, Frontier will ship (at Cisco's expense) to Cisco
part(s) or Product(s) with [*] to Cisco. Such parts or Products shall only be
used for service and support and may not be resold by Cisco other than as part
of Cisco's customer service and support program.
8.6 SUPPORT DOCUMENTATION. Promptly upon Cisco's written request,
Frontier agrees to supply Cisco with all technical documentation and resources
that the Parties reasonably determine to be useful or necessary to perform
customer support and troubleshooting or to analyze the technical benefits and
risks of introducing new software or hardware releases of the Products into
Cisco's customer base. Such support documentation will include, without
limitation: (i) hardware and software specifications, (ii) information on
debugging/support tools, and (iii) lists of all error messages with explanations
as needed and recommended actions.
8.7 PRODUCT REPORTS. Frontier will keep accurate records of Product
deficiencies (bugs) and make such reports available to Cisco at least [*] on a
best efforts basis. Frontier will maintain an electronic means (e.g., an FTP
server) through which Cisco can obtain up-to-date information on bugs, fixes,
and code updates.
8.8 DISCONTINUED PRODUCTS. Frontier will use best efforts to provide
support to Cisco, pursuant to this Section 8, for each discontinued Product for
[*] after the date of such discontinuance.
8.9 SUPPORT PRIORITIZATION AND ESCALATION GUIDELINES, To ensure that
all Product problems and technical inquiries are reported in a standard format,
Frontier will use and comply with the problem priority definitions and
escalation guidelines as set forth in Exhibit F hereto, and Cisco shall assign a
priority to all problems submitted to Frontier. Based on the priority of a
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treatment has been requested. All such omitted material has been filed with the
Securities and Exchange Commission pursuant to Rule 406 promulgated under the
Securities Act of 1933, as amended.
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Product problem, Frontier agrees to provide Cisco fixes or work-arounds in the
following time frames:
Priority 1: Fix or work-around within [*] of problem report to Frontier
Priority 2: Fix or work-around within [*] of problem report to Frontier
Priority 3: Fix of work-around within [*] of problem report to Frontier
Priority 4: Fix or work-around within [*] of problem report to Frontier
For Priority 3 or 4 problems, if Frontier is [*], the Frontier will provide to
Cisco within [*], at a minimum, a written plan for addressing the problem.
8.10 TRAINING. Frontier shall offer, at its expense, its standard
training and instruction class in the service and maintenance of the Products up
to [*] during the term of this Agreement at Cisco's San Xxxx headquarters at
times mutually reasonably agreed upon by Frontier and Cisco, such training
classes to last no more than three (3) days each. In addition, this training
will be offered from time to time as requested by Cisco or as otherwise needed
as new Products are added to this Agreement and as existing Products are
enhanced and shall also include compatibility issues, engineering debug
capabilities, customer premises debug capabilities. Frontier will provide
training for new Products prior to initial shipment of each new Product and for
a minimum of twenty-five (25) people at a Frontier facility or a location
mutually reasonably agreed upon by Frontier and Cisco. Training will be provided
at no cost to Cisco, except that Cisco will bear all travel and living expenses
of its employees during such training. Frontier shall pay all costs associated
with shipping training materials to Cisco's San Xxxx facilities. Additional
terms regarding training classes at Cisco sales offices will be negotiated by
the parties in good faith.
8.11 SUPPORT OF CISCO ENHANCEMENTS. In the event Cisco exercises its
right to make Software enhancements, Frontier is obligated to fix software bugs
only if the problem can be demonstrated to exist in the Software without the
Cisco enhancements.
9. REPRESENTATIONS AND WARRANTIES
9.1 WARRANTY OF TITLE. Frontier warrants and represents to Cisco that
(i) Cisco shall acquire good and clear title to the Products, free and clear of
all liens and encumbrances, (ii) all materials and services provided hereunder
including, without limitation, the Products, are either owned or properly
licensed by Frontier or are in the public domain and the use thereof by Cisco or
its affiliates, customers, representatives, distributors or dealers will not
infringe any proprietary rights of any third party, (iii) Frontier has the full
power to enter into this Agreement, to carry out its obligations under this
Agreement and to grant the rights and licenses granted to Cisco in this
Agreement and (iv) Frontier's compliance with the terms and conditions of this
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treatment has been requested. All such omitted material has been filed with the
Securities and Exchange Commission pursuant to Rule 406 promulgated under the
Securities Act of 1933, as amended.
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Agreement will not violate any Federal, state or local laws, regulations or
ordinances or any third party agreements.
9.2 PRODUCT WARRANTY. To Cisco and its customers Frontier warrants the
Products will be new and unused, will perform in accordance with the applicable
Specifications and related documentation provided by Frontier (and will achieve
any function described therein), and will be free from defects in materials,
workmanship or design for a period of [*] from the date of shipment (the
"Warranty Period"). Frontier further warrants that repairs will be free from
defects outside the Warranty Period for a period of [*].
9.3 During the Warranty Period, Frontier will repair or replace (at its
option), and return or deliver to the location designated by Cisco within [*]
from receipt, any defective Product or part, provided that the Product or part
is returned to Frontier. Unless Frontier reasonably demonstrates a returned item
is free from defect, Frontier shall pay the costs of all shipping and insurance
of the item (including, upon repair or replacement, return of the same or
replacement item to the original location) and assume the risk of loss during
shipping. All replaced parts become the property of Frontier.
9.4 This limited warranty does not extend to any Products that have
been misused, abused, serviced by anyone other than a Frontier authorized
representative, Cisco or a party authorized by Cisco, or damaged due to accident
or act of God. EXCEPT FOR THE WARRANTIES PROVIDED IN THIS AGREEMENT, NO OTHER
WARRANTIES ARE EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. EXCEPT FOR
THE WARRANTIES PROVIDED BY FRONTIER IN THIS AGREEMENT, NO ADDITIONAL
REPRESENTATION OR WARRANTY, INCLUDING BUT NOT LIMITED TO: STATEMENTS OF
CAPACITY, SUITABILITY FOR USE OR PERFORMANCE, WHETHER MADE BY FRONTIER EMPLOYEES
OR CISCO SHALL BE CONSIDERED TO BE A WARRANTY BY FRONTIER FOR ANY PURPOSE OR
GIVE RISE TO ANY LIABILITY OF FRONTIER WHATSOEVER.
9.5 EPIDEMIC HARDWARE FAILURE. For the purposes of this Agreement
epidemic failure will be deemed to have occurred if more than [*] of the [*]
total installed base of [*] Product should fail in [*] within a time period of
[*]. In the case of epidemic failure Frontier and Cisco will cooperate to
implement the following procedure:
(a) Cisco will immediately notify Frontier upon discovery of
the failure.
(b) Within [*] Frontier will give an initial response
indicating its preliminary plan for diagnosing the problem.
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treatment has been requested. All such omitted material has been filed with the
Securities and Exchange Commission pursuant to Rule 406 promulgated under the
Securities Act of 1933, as amended.
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(c) [*] will [*] exert [*] efforts to diagnose the problem
and plan a work-around or more permanent solution.
(d) Frontier will apply its engineering change order procedure
in appropriate circumstances for hardware problems originating in the
manufacturing process.
(e) [*] will prepare and consult with [*] regarding an
appropriate [*] as well as an appropriate [*], as an [*], if one is
needed.
(f) [*] will [*] on a recovery plan.
[*] will be responsible for [*] in rectifying any epidemic failure, including
without limitation, for any solution, work-arounds, recovery plan or engineering
changes.
10. MANUFACTURING RIGHTS
10.1 CISCO'S RIGHT TO MANUFACTURE. Frontier grants Cisco, for a period
not to exceed [*] from Cisco's exercise of such grant, a worldwide,
nonexclusive, non-transferable right and license to manufacture or have
manufactured the Products ("Manufacturing Rights") at any time upon occurrence
of any of the events and/or circumstances defined below, provided the parties'
management has met to review the event and/or circumstances causing the transfer
of Manufacturing Rights to Cisco and has failed, after exhausting all reasonable
efforts, to reach an alternative resolution.
(a) If Frontier fails to consistently supply Cisco with
Products meeting the applicable Specifications in the quantities
required in accordance with Cisco purchase orders, and fails to provide
Cisco with a reasonable cure and/or reasonable assurances of an
expeditious cure within [*] of receipt of Cisco's notification of
Frontier's failed performance. For the purposes of this section,
Frontier shall have been deemed to have failed consistently in
performing its obligations to supply Products if: (i) for any [*]
period, Frontier fails to deliver at least [*] of the required
quantities of the Product on or before the scheduled delivery dates;
or, (ii) greater than [*] of the Products delivered over any [*] are
defective in any material respect with regard to materials and
workmanship. Cisco agrees to provide Frontier with a [*] which
identifies the [*] associated with Frontier's [*] to enable Frontier to
review and correct any deficiencies in its performance hereunder. In
the event Cisco fails to provide the required [*] for any of the [*]
which are the basis for Frontier's failed performance hereunder, Cisco
may not invoke its Manufacturing Rights unless and until such time as
Cisco provides Frontier with the
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treatment has been requested. All such omitted material has been filed with the
Securities and Exchange Commission pursuant to Rule 406 promulgated under the
Securities Act of 1933, as amended.
15
required [*] and notice of Frontier's failure for the specified
[*], and Frontier, after receipt of the [*] and notification from
Cisco, fails to provide Cisco with a reasonable cure and/or reasonable
assurances of an expeditious cure within [*] of receipt of said
notification. In the event Frontier cures its failed performance within
the required time frame, Cisco may not invoke any Manufacturing Rights
under this section until such time as Frontier fails to meet delivery
or quality standards for any subsequent [*] period.
(b) If Frontier discontinues manufacturing of the Product and
fails to make a substitute available that, in Cisco's reasonable
judgment, is equivalent in form, fit and function.
(c) If Frontier becomes insolvent or seeks protection under
any bankruptcy, receivership, trust, deed, deed, creditors arrangement,
composition or comparable proceeding, or if such is instituted against
Frontier.
(d) If Frontier assigns or transfers its rights or obligations
under the Agreement to a direct competitor of Cisco's without prior
written consent, including, without limitation, any transfer by sale,
merger or other working combination of ownership of or control over
more than [*] of the voting securities or control of Frontier.
(e) If Cisco terminates the Agreement by reason of any other
material breach by Frontier of its obligations hereunder, and such
obligations remain uncured for the later of [*] or a mutually accepted
period of time after Frontier's receipt of written notice thereof from
Cisco. Notwithstanding Cisco's rights with respect to termination as
defined in this Section 10, Cisco agrees, in the interest of
maintaining the ongoing relationship between the Parties as set forth
by the Agreement, to contact Frontier to schedule a meeting with
Frontier's senior management to discuss and review resolution
alternatives to the material breach prior to delivery of written notice
of termination to Frontier. In the event the Parties fail to identify a
reasonable resolution to the breach during the management meeting,
Cisco may, immediately thereafter, deliver termination notice to
Frontier.
10.2 ROYALTIES AND LICENSE FEES.
(a) In the event Cisco exercises its Manufacturing Rights,
Cisco agrees to [*] on all Products manufactured and distributed by
Cisco hereunder equal to [*] of Cisco's [*] for the Product. All
royalties will be computed on a per unit basis and paid quarterly
within [*] following the end of each Cisco quarter.
(b) Cisco shall be obligated to pay all license fees and
royalties, if any, with respect to any third party proprietary rights
and technologies which are required for the
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treatment has been requested. All such omitted material has been filed with the
Securities and Exchange Commission pursuant to Rule 406 promulgated under the
Securities Act of 1933, as amended.
16
exercise of Cisco's Manufacturing Rights and which are listed in
Exhibit I. All other such third party royalties and licenses which are
not listed in Exhibit I and which are required for Cisco to exercise
the Manufacturing Rights under this Agreement shall be paid by
Frontier.
10.3 AUDIT RIGHTS. In the event Cisco exercises its Manufacturing
Rights as provided hereunder, Cisco agrees to keep and maintain, for a period of
[*] after the end of the year to which they pertain, complete and accurate
records of the Products manufactured and distributed by Cisco in order to
calculate and confirm Cisco's royalty obligations under Section 10.2 above. Upon
reasonable prior notice, Frontier will have the right, exercisable not more than
once every [*], to appoint an independent accounting firm reasonably
acceptable to Cisco, at Frontier's expense, to examine such books, records and
accounts during Cisco's normal business hours to verify the royalties due by
Cisco to Frontier under Section 10.2 above, subject to such independent
accounting firm's execution of Cisco's standard confidentiality agreement;
provided that execution of such agreement will not preclude such firm from
reporting its results to Frontier. In the event such audit discloses an
underpayment or overpayment of royalties due hereunder, the appropriate party
will promptly remit the amounts due to the other party.
10.4 MANUFACTURING INFORMATION ESCROW.
(a) The parties agree that upon request by Cisco, Frontier
will promptly place the following materials into an escrow account: (i)
the source code and applicable documentation for the Products (in
either electronic media form or hard copy) and (ii) certain applicable
manufacturing information ("Escrowed Materials"). Cisco shall select
the escrow agent (subject to Frontier's reasonable approval), and be
responsible for the establishment, administration and cost of the
escrow account. Immediately upon termination of this Agreement, all
Escrowed Materials will be released back to Frontier. The Escrowed
Materials will be released for use by Cisco, subject to the terms and
conditions hereof, only after notice to Frontier and only under
circumstances in which Cisco would otherwise be entitled to exercise
the Manufacturing Rights. Frontier agrees to promptly deposit, at least
[*] per year, into escrow any and all updates, enhancements and
modifications to the Escrowed Materials.
(b) In the event Cisco exercises its Manufacturing Rights
hereunder, at no cost to Cisco, Frontier shall provide Cisco such
technical support and assistance as Cisco may reasonably request in
connection with the manufacture of the Products.
(c) Cisco agrees that it will maintain the Escrowed Material
delivered to it under this Agreement in strict confidence and will
require its contractors to do the same. Any source code which is
delivered as part of the Escrowed Material will be subject to Cisco's
confidentiality obligations set forth in Section 12.
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treatment has been requested. All such omitted material has been filed with the
Securities and Exchange Commission pursuant to Rule 406 promulgated under the
Securities Act of 1933, as amended.
17
(d) Cisco's rights to use the Escrowed Materials, upon the
exercise of Manufacturing Rights, shall be limited to support,
maintenance and manufacture of the Products only. Cisco shall be
prohibited from: (i) disclosing, selling, copying or otherwise
transferring the Escrowed Materials except as necessary to carry out
Cisco's right to support, maintain and manufacture the Products; or
(ii) removing the Escrowed Materials from Cisco's facilities or the
facilities of Cisco's authorized manufacturer(s) of the Products. Cisco
further agrees, at all times while in possession of Frontier's Escrowed
Materials, to protect against unlawful disclosure and ensure the
integrity and protection of Frontier's proprietary rights by
maintaining, as applicable, Frontier's proprietary rights notices (A)
in the source code of the Escrowed Materials, in the comment lines at
the beginning of each significant module; (B) on the terminal screen
when each user starts that program; (C) on the label for the magnetic
media that contains the program; and (D) on all technical manuals and
related documentation for the program.
11. INDEMNIFICATION
11.1 PROPRIETARY RIGHTS.
(a) Frontier agrees to indemnify, defend and hold harmless
Cisco and its officers, directors, employees, shareholders, customers,
agents, successors and assigns from and against any and all loss,
damage, settlement or expense (including legal expenses), as incurred,
resulting from or arising out of any claims which allege that any
Products or the use or sale thereof infringe upon, misappropriate or
violate any patents, copyrights, or trade secret rights or other
proprietary rights of persons, firm or entities who are not parties to
this Agreement except for such claims that result solely (i) from
Frontier's compliance with design specifications and/or data sheets
supplied by Cisco or (ii) from Cisco's alteration or modification of
Products after delivery by Frontier; provided that Cisco (i) promptly
notifies Frontier, in writing, of any notice or claim of such alleged
infringement or misappropriation involving the Products of which it
becomes aware, and (ii) permits Frontier to control, in a manner not
adverse to Cisco, the defense, settlement adjustment or compromise of
any such claim using counsel reasonably acceptable to Cisco. Cisco may
employ counsel, at its own expense (provided that if such counsel is
necessary because of a conflict of interest of either Frontier or its
counsel or because Frontier does not assume control, Frontier will bear
such expense), to assist it with respect to any such claim. Frontier
shall not enter into any settlement that affects Cisco's rights or
interest without Cisco's prior written approval. Cisco shall have no
authority to settle any claim on behalf of Frontier.
(b) If by reason of such infringement claim, Cisco or its
customers shall be prevented or are likely to be prevented by legal
means from selling or using any Products, or if, in Frontier's opinion,
such claim is likely to occur, Frontier will use its best efforts, at
its expense, to: (i) obtain all rights required to permit the sale or
use of the Products by Cisco and its customers; or (ii) modify or
replace such Products to make them non-infringing (and extend this
indemnity thereto), provided that any such replacement or
18
modified Products are satisfactory to Cisco. If Frontier is unable to
achieve either of the options set forth above within a reasonable
period of time after the issuance of the injunction, but in no event
longer than thirty (30) days after receipt of notice thereof, Frontier
shall promptly refund to Cisco the invoiced purchase price, plus all
shipping, storage, and associated costs, of any Products returned
freight collect to Frontier which Cisco or its customers are legally
prohibited from selling or using.
11.2 PRODUCT LIABILITY INDEMNIFICATION.
(a) Frontier expressly and unequivocally agrees to and hereby
does indemnify, release, defend and hold Cisco and its officers,
directors, employees, shareholders, agents, successors and assigns
harmless from and against all claims, damages, losses, costs and
expenses, including attorneys' fees, arising in favor of any person,
firm or corporation on account of product liability in any way relating
to the Product, provided that Cisco (i) promptly notifies Frontier, in
writing, of any notice or claim hereunder of which it becomes aware,
and (ii) permits Frontier to control, in a manner not adverse to Cisco,
the defense, settlement, adjustment or compromise of any such claim
using counsel reasonably acceptable to Cisco. Cisco may employ counsel,
at its own expense (provided that if such counsel is necessary because
of a conflict of interest of either Frontier or its counsel or because
Frontier does not assume control, Frontier will bear such expense), to
assist it with respect to any such claim. Frontier shall not enter into
any settlement that affects Cisco's rights or interest without Cisco's
prior written approval. Cisco shall have no authority to settle any
claim on behalf of Frontier. Notwithstanding the indemnification
provisions of this Section 11.2, it is mutually agreed and understood
that any and all obligations, commitments and liabilities with respect
to Product liability as defined in this Section 11.2 shall not apply to
Frontier to the extent Products are manufactured by Cisco in the event
Cisco has exercised its rights to manufacture Frontier's Products
pursuant to Section 10 hereunder, provided that Frontier's Product
liability indemnity obligations under this Section 11.2 shall continue
to apply for defects arising from the design of the Product.
12. CONFIDENTIALITY
Any proprietary information exchanged by the Parties during the term of
this Agreement shall be treated pursuant to the Non-Disclosure Agreement, dated
July 10, 1995.
13. LIMITATION OF LIABILITY
EXCEPT UNDER SECTIONS [*], UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE
LIABLE TO THE OTHER IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT
UNDER ANY CONTRACT, STRICT LIABILITY, NEGLIGENCE OR
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treatment has been requested. All such omitted material has been filed with the
Securities and Exchange Commission pursuant to Rule 406 promulgated under the
Securities Act of 1933, as amended.
19
OTHER LEGAL OR EQUITABLE THEORY, FOR (I) ANY INDIRECT, SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES, (II) LOST PROFITS OR DATA OR (III) ANY AMOUNTS IN EXCESS
OF THE [*] OR THE [*] FOR THE [*] THAT ARE THE SUBJECT OF THE CLAIM. THIS
SECTION DOES NOT LIMIT EITHER PARTY'S LIABILITY FOR BODILY INJURY OF A PERSON.
14. TERM AND TERMINATION
14.1 TERM. Unless terminated earlier as provided herein, this Agreement
shall have a term of three (3) years commencing from the Effective Date, unless
terminated sooner by written notice given by a party pursuant to this Section
14. The parties may extend the term of this Agreement for up to additional one
(1) year periods by written agreement executed no later than sixty (60) days
prior to the expiration of the then current term period. Upon any expiration or
termination, the rights and obligations of the parties shall continue except
that Frontier will not be required to accept further orders or undertake further
product development.
14.2 TERMINATION FOR CAUSE This Agreement may be terminated by a party
for cause immediately by written notice upon the occurrence of any of the
following events:
(a) If the other ceases to do business, or otherwise
terminates its business operations; or
(b) If the other breaches any provision of this Agreement and
fails to cure such breach within [*] (immediately in the case of a
breach of Section 12) of written notice describing the breach; or
(c) If the other becomes insolvent or seeks protection under
any bankruptcy, receivership, trust deed, creditors arrangement,
composition or comparable proceeding, or if any such proceeding is
instituted against the other (and not dismissed within ninety (90)
days).
14.3 TERMINATION FOR CONVENIENCE. Subject to the terms of this Section
14, Cisco may terminate this Agreement or any purchase order issued hereunder
upon notice to Frontier. Both Cisco and Frontier agree to cooperate in good
faith to minimize the negative impact to both parties. Cisco agrees to execute
any termination for convenience in the following manner.
(a) Written notice informing Frontier of Cisco's intent to
terminate this Agreement or any purchase orders issued hereunder.
(b) A minimum of nine (9) months lead time from the date of
receipt of written notice by Cisco before full termination of Cisco's
requirements.
14.4 FRONTIER'S ACTIONS. Upon receipt of written notice pursuant to
Section 14.3, Frontier will, to the extent and at the times specified by Cisco,
stop all work under the affected purchase order, place no further orders for
materials to complete the work, orders and any
20
surviving rights under terminated subcontracts or orders, settle all claims
thereunder after obtaining Cisco's approval, protect all property in which Cisco
has or may acquire an interest, and transfer title and make delivery to Cisco of
all completed Products, articles, raw materials, work in process, and other
things held or acquired by Frontier in connection with the terminated portion of
this purchase order. Frontier will proceed promptly to comply with Cisco's
instructions respecting each of the foregoing without awaiting settlement of
payment of its termination claim.
14.5 CLAIMS. Within [*] after termination according to Section 14.3,
Frontier may submit to Cisco its written claim for any charges due to Frontier
from Cisco. Failure to submit the claim within [*] will constitute a waiver of
all claims and a release of all Cisco's liability arising out of the
termination.
14.6 SETTLEMENT. In the event that Frontier properly files any claims
under Section 14.5 above, Cisco agrees to pay to Frontier the amounts identified
by Frontier in its invoice for any such termination that is promptly submitted
to Cisco. Notwithstanding the foregoing, if Cisco reasonably disputes the
amounts identified by Frontier in the submitted invoice and the parties fail (in
good faith) to reach agreement on an adjusted invoice value, Cisco agrees to pay
and Frontier shall accept the following amounts:
(a) The price for all Products completed (which items were
delivered or available for delivery at the time notice of termination
was given) pursuant to the affected purchase order(s) and not
previously paid for as specified in Exhibit A.
(b) The actual, documented costs incurred by Frontier related
to the terminated portion of the purchase order, including, only to the
extent that any components, materials and other inventory cannot be
used in any of Frontier's non-Cisco products: (i) Frontier's cost of
component inventory for the terminated portion of the purchase
order(s), (ii) Frontiers cost of work in process materials including
manufacturing operations completed at the time of cancellation for the
terminated portion of Cisco's purchase order, and (iii) reasonable
cancellation charges incurred by Frontier from component suppliers for
the terminated portion of Cisco's purchase order.
(c) The reasonable, documented costs incurred by Frontier in
protecting property in which Cisco has or may acquire an interest.
(d) Notwithstanding the foregoing, payments made under this
Section 14.6 shall in no event [*] in the terminated purchase order(s)
less payments otherwise made or to be made. Any amounts payable for
property lost, damaged, stolen or destroyed prior to delivery to Cisco
win be excluded from amounts otherwise payable to Frontier under this
Section 14. THIS SECTION 14.6 SETS FORTH FRONTIER'S ENTIRE REMEDIES
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treatment has been requested. All such omitted material has been filed with the
Securities and Exchange Commission pursuant to Rule 406 promulgated under the
Securities Act of 1933, as amended.
21
WITH RESPECT TO A TERMINATION OF THIS AGREEMENT BY CISCO UNDER SECTION
14.3 ABOVE.
14.7 SURVIVAL; SUPPORT AFTER TERMINATION. Sections 2, 7.4, 9, 11, 12,
13, 14, 15, 16, 17, 18 and 19 and Cisco's right to distribute Products in
inventory or subject to any pending purchase order shall survive termination or
expiration of this Agreement. In the event of any termination or expiration of
this Agreement, Frontier shall continue to provide maintenance support and
hardware repair to Cisco at Frontier's prevailing rates. The support shall be
provided a minimum of three (3) years after termination or expiration.
14.8 Subject to Cisco's Manufacturing Rights under Section 10, upon
Frontier's request, Cisco shall deliver to Frontier all Frontier property loaned
to Cisco under this Agreement, without cost to Frontier (exclusive of freight
costs). Frontier shall determine the manner and procedure for returning the
Frontier property, and shall pay the corresponding freight costs.
15. FORCE MAJEURE
Neither party shall be considered in default of performance of its
obligations under this Agreement to the extent that performance of such
obligations is delayed by force majeure or contingencies or causes beyond the
reasonable control of such party or its suppliers. In the event Frontier fails
to deliver product due to such causes, Cisco may either:
(a) Terminate this Agreement or any part hereof as to
Product(s) not shipped; or
(b) Suspend this Agreement in whole or in part for the
duration of the delaying cause, and at Cisco's option, buy the
Product(s) elsewhere and deduct from any commitment to Frontier the
quantity so purchased. Frontier shall resume performance under this
Agreement immediately after the delaying cause ceases and, at Cisco's
option, extend the then current term period for a period equivalent to
the length of time the excused delay endured.
16. ASSIGNMENT
This Agreement shall be binding on the parties hereto and their
successors and assigns; provided, however, that Frontier shall not assign or
transfer, in whole or in part, this Agreement or any of its rights or
obligations arising hereunder without the prior written consent of Cisco, except
that Frontier may assign this Agreement to a party that acquires all or
substantially all of Frontier's business, stock or assets. Any purported
assignment without such consent shall be null and void. Cisco may freely
transfer, in whole or part, this Agreement and its rights and obligations
hereunder.
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17. NONSOLICITATION
During the term of this Agreement and for one (1) year thereafter, each
party will refrain from (i) soliciting the other party's employees or
consultants for employment or other service or (ii) encouraging the other
party's employees or consultants to leave the such other party for any reason.
18. COMPLIANCE WITH LAWS; IMPORT/EXPORT
18.1 COMPLIANCE WITH LAWS. Frontier warrants that in performance of
work under this Agreement it has complied with or will comply with all
applicable federal, state, local laws and ordinances now or hereafter enacted
including, but not limited to OSHA, the Fair Labor Standards Act of 1938 (29
U.S.C. 201-219), the 8-Hour Law (40 U.S.C. 327-332), the Equal Opportunity and
Affirmative Action Regulations, and laws restraining the use of convict labor.
Frontier warrants that in performance of work under this Agreement it has
complied with all laws, regulations, statutes and ordinances of all governmental
entities including local, state, federal or international, now or hereafter
enacted, which regulate any material because it is radioactive, toxic, hazardous
or otherwise a danger to health, reproduction or the environment including but
not limited to the Comprehensive Environmental Response Compensation and
Liability Act of 1980, the Resource Conservation Recovery Act, the Federal Water
Pollution Control Act, the Clean Air Act, the Montreal Protocol, the Toxic
Substances Control Act and similar laws, rules, statutes, treaties or orders and
international understandings. In addition, Frontier shall secure and maintain
adequate workmen's compensation insurance in accordance with the laws of the
state or states from which Frontier shall furnish Product and/or services for
Cisco. Upon request, Frontier agree to issue certificates certifying compliance
with any of the aforementioned laws or regulations as may be applicable to the
Product and/or services being furnished hereunder.
18.2 IMPORT AND EXPORT. Frontier shall provide all information under
its control which is necessary or useful for Cisco to obtain any export or
import licenses required for Cisco to ship or receive Products, including, but
not limited to, U.S. customs certificates of delivery, affidavits or origin, and
U.S. Federal Communications Commissions identifier, if applicable.
19. GENERAL
19.1 NOTICES. All notices shall be sufficient only if personally
delivered, delivered by telecopy, delivered by a major commercial rapid delivery
courier service or mailed by certified or registered mail, return receipt
requested, to either party at its address set forth below (or such other address
as such party may provide by notice pursuant to this Section):
Cisco Systems, Inc. Frontier Software Development, Inc.
000 Xxxx Xxxxxx Xxxxx 000 Xxxxxxxxx
Xxx Xxxx, XX 00000-0000 Xxxxxxxxxx, XX 00000
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If not received sooner, notice by mail shall be deemed received five
(5) days after deposit in the U.S. mails, properly addressed, with first class
postage prepaid. Notice by telecopy shall be deemed received at the time sent or
the next working day if such time is not during a working day.
19.2 CONTROLLING LAW AND JURISDICTION. This Agreement shall be
governed, controlled, interpreted and defined by and under the laws of the State
of California and the United States, without regard to the conflicts of laws
provisions thereof. Unless waived by Cisco (which it may do in its sole
discretion) the exclusive jurisdiction and venue of any action with respect to
the subject matter of this Agreement shall be the Superior Court of California
for the County of Santa Xxxxx or the United States District Court for the
Northern District of California and each of the parties hereto submits itself to
the exclusive jurisdiction and venue of such courts for the purpose of any such
action. Service of process in any such action may be effected in the manner
provided in Section 19.1 for delivery of notices.
19.3 WAIVERS AND AMENDMENTS. No failure or delay by either party in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial waiver thereof include any other right,
power or privilege. This Agreement may not be amended, changed, discharged or
terminated except by a written document signed by duly authorized officers of
the parties.
19.4 SEVERABILITY. In the event that any provision of this Agreement
shall be unenforceable or invalid under any applicable law or be so held by
applicable court decision, such unenforceability or invalidity shall only apply
to such provision and shall not render this Agreement unenforceable or invalid
as a whole; and, in such event, such provision shall be modified or interpreted
so as to best accomplish the objective of such unenforceable or invalid
provision within the limits of applicable law or applicable court decision and
the manifest intent of the parties hereto.
19.5 RELATIONSHIP OF THE PARTIES. In fulfilling its obligations under
this Agreement, each party shall be acting as an independent contractor. This
Agreement does not make either party the employee, agent or legal representative
of the other.
19.6 BASIS OF BARGAIN. EACH PARTY RECOGNIZES AND AGREES THAT THE
WARRANTY DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS IN THIS AGREEMENT ARE
MATERIAL BARGAINED FOR BASES OF THIS AGREEMENT AND THAT THEY HAVE BEEN TAKEN
INTO ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH
PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS
AGREEMENT.
19.7 ENTIRE AGREEMENT. This Agreement (including the Exhibits hereto)
constitutes the entire Agreement between the parties hereto concerning the
subject matter of this Agreement; and there are no conditions, understandings,
agreements, representations, or warranties, expressed or implied, which are not
specified herein.
24
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by
persons duly authorized as of the date and year first above written.
CISCO SYSTEMS, INC.
By: /s/ XXXXX XXXXXXX
-------------------
Title: V.P. AND G.M. WBU
-----------------
FRONTIER SOFTWARE
DEVELOPMENT, INC.
By: /s/ XXXXXXXX XXXXX
-------------------
Title: PRESIDENT
25
EXHIBIT A
PRODUCTS/PRICING
------------------------- ---------------------- ---------------------------------------------------------------------
PRODUCT U.S. [*]
MODEL LIST
NUMBER PRICE
------------------------- ---------------------- ---------------------------------------------------------------------
[*]
---------------------------------------------------------------------
[*] [*] [*]
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
[*] [*] [*] [*] [*]
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
[*] [*] [*] [*] [*]
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
[*] [*] [*] [*] [*]
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
[*] [*] [*] [*] [*]
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
[*] [*] [*] [*] [*]
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
[*] [*] [*] [*] [*]
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
[*] [*] [*] [*] [*]
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
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[*] [*] [*] [*] [*]
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
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[*] [*] [*] [*] [*]
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
[*] [*] [*] [*] [*]
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
When reference is made in the Agreement or any exhibit to Frontier's
published U.S. List Price of a Product specially modified for Cisco, such
reference shall mean Frontier's published U.S. List Price for Frontier standard
product upon which the Product has been based. If Frontier shall modify, update,
enhance or create a new version of a standard product upon which such a Product
is based, it shall similarly modify, update, enhance or create a new version of
the corresponding Product. Frontier will sell Products specially modified for
Cisco only to Cisco.
--------------
[*] indicates material that has been omitted and for which confidential
treatment has been requested. All such omitted material has been filed with the
Securities and Exchange Commission pursuant to Rule 406 promulgated under the
Securities Act of 1933, as amended.
26
EXHIBIT B
NOT USED
27
EXHIBIT C
PRODUCT SPECIFICATIONS
28
INTELLIGENT RMON PROBES FOR FDDI/CDDI BACKBONES
- Cost effective RMON probes for 62.5/125 micron multimode FDDI and for
CDDI
- High Performance 90 Mhz Pentium processor
- RMON MIB and SMT support FDDI/CDDI for enterprise wide standard
diagnostics
- Support for Single and Dual attached physical connections
- Virtual analyzer for 7 layer EnterpriseRMON-TM- monitoring of multiple
network parameters concurrently
- In Band/Out of band configuration support via BootP, TFTP, and NSlogin
- Resource Manager-TM- option provides proactive monitoring of SNMP
devices
- Ethernet or Token Ring interface connections for management
communications
- Full packet capture and seven level protocol decode for FDDI/CDDI
traffic
- Integrates with NETscout Manager for comprehensive mutli-topology
monitoring
------------------------------------------------------------
NETscout
FDDI/CDDI Probes
------------------------------------------------------------ ----------------------------------
------------------------- ---------------------------------- ----------------------------------
MODEL DESCRIPTION TOPOLOGY
------------------------- ---------------------------------- ----------------------------------
------------------------- ---------------------------------- ----------------------------------
0000XX XXXX Probe CDDI/Ethernet
7101TR Single Attached CDDI/Token Ring
------------------------- ---------------------------------- ----------------------------------
------------------------- ---------------------------------- ----------------------------------
7102ET FDDI Probe FDDI/Ethernet
7102TR Single Attached FDDI/Token Ring
------------------------- ---------------------------------- ----------------------------------
------------------------- ---------------------------------- ----------------------------------
7103ET FDDI Probe FDDI/Ethernet
7103TR Dual Attached FDDI/Token Ring
------------------------- ---------------------------------- ----------------------------------
NETSCOUT FDDI/CDDI PROBES PROVIDE FULL RMON CAPABILITIES FOR HIGH SPEED
BACKBONES
Distributed networks use a variety of topologies in order to maximize network
performance and utilization. In many cases FDDI and/or CDDI technologies have
been applied to needs for a high speed, high performance backbone connecting the
variety of Ethernet, Token Ring, and WAN segments which typically integrate to
form enterprise wide communications.
Since the development of the RMON standard, first for Ethernet and then extended
to Token Ring, users have quickly adopted this standards based technology to
provide both pro-active as well as reactive diagnostic operations for
increasingly complex network configurations. However, no cost effective
mechanism has exited to address the needs of users to understand the operation
and diagnose problems associated with high speed backbone segments.
The NETscout 7100 Series EnterpriseProbe for FDDI/CDDI networks fills this major
hole in diagnostic capabilities. Depending on the model selected, users may
connect to both FDDI and CDDI network segments in either single or
29
dual attached configurations. The NETscout's high performance Pentium processor
allows users to gather RMON based statistics for all ring traffic activity.
NETscout's Domain View architecture provides the same capability to subdivide
traffic on the ring and effectively operate multiple concurrent RMON probes on a
single platform. Management from the NETscout RMON management package presents
FDDI/CDDI information in exactly the same forms as for Ethernet and Token Ring
thus presenting a complete and uniform diagnostic mechanism for multi-media
enterprise networks.
30
INTELLIGENT RMON PROBES AND AGENTS
- High Performance 486 based multisegment probes and cost effective
software agents
- Support for Ethernet, Token Ring, FDDI, and WAN
- Compatible with RMON standards for Ethernet (RFC 1271) and Token Ring
(RFC 1513)
- Compatible with any SNMP based Network Management System
- Virtual analyzer for 7 layer EnterpriseRMON-TM- monitoring of multiple
network parameters concurrently
- Selective packet capture and seven level protocol decode software
- In Band/Out of Band configuration support via BootP, TFTP, and Nslogin
- Support for duplicate IP address detection
- Provides accounting statistics for utilization/bandwidth cost analysis
- Resource Manager-TM- software option supports proxy SNMP
------------------------------------------------------------
NETscout
Product Family
------------------------------------------------------------ ----------------------------------
------------------------- ------------------------------------- --------------------------------------
MODEL DESCRIPTION TOPOLOGY
------------------------- ------------------------------------- --------------------------------------
------------------------- ------------------------------------- --------------------------------------
6010 High performance 486 based Ethernet
6020 intelligent probes Token Ring
6040 WAN (E connection)
6050 Ethernet/WAN
6060 WAN (TR Connection)
6070 Token Ring/WAN
------------------------- ------------------------------------- --------------------------------------
------------------------- ------------------------------------- --------------------------------------
0000 XXXXX based software agents Ethernet
9530 FDDI
------------------------- ------------------------------------- --------------------------------------
A COMPLETE FAMILY OF HIGH PERFORMANCE PROBES AND SOFTWARE AGENTS
Frontier offers the industry's broadest product lines of RMON base hardware
probes and software ______. _______________ family supports Ethernet, Token
Ring, FDDI and WAN. This family of integrated products are fully compatible and
supported from a single monitoring environment. NETscout is also compatible with
any SNMP based network management system. With the NETscout family, the network
administrator can choose different price points matching the performance needs
of the network. The NETscout 6000 series utilizes a high-performance 486
processor and real time operating system delivering excellent price performance.
The NETscout 6000 series has a scaleable architecture that will consistently
________ in performance in __________________________ technology.
_____________________ NETscout ___________ and high ______________ monitoring.
For those users who want to utilize existing SPARC platforms Frontier offers the
NETscout 9500 series and DOS software agents for a cost-effective way to add
RMON to LAN segments. The Ethernet probes and agents support all 9 RMON groups
(RFC 1271). The Token Ring probes and agents support ten groups (RFC 1513). The
WAN probe is ideal for monitoring bandwidth utilization and providing accounting
information. The WAN
31
probe supports encapsulation and is compatible with Cisco,
Wellfleet, 3COM, DEC, Proteon and other routers. The new Resource Manager Option
lets a single probe proactively monitor both LAN/WAN traffic and any SNMP
device.
32
NETSCOUT: UNBEATABLE SCALABILITY, FLEXIBLE FOR ENTERPRISE NETWORKS
A typical network can be equipped with multiple Frontier NETscout probes and
agents with one agent or probe connected to each individual network segment. The
agents are managed and controlled from a centrally located network management
console, called the NETscout Manager. The network management console consists of
a number of analysis tools which permit the user to request and examine data
provided by the selected agent. NETscout probes and agents are supported by
Frontier's SNMP compatible management console analysis software which runs with
SunNet Manager, IBM NetView 6000, HP Openview, AT&T and MS Windows. With
Frontier NETscout probes and agents, it is possible to have multiple clients
active so that network diagnostic functions may be performed from multiple
locations such as from primary and secondary network management centers. Also
with NETscout probes multiple segments can be monitored.
PLUG AND PLAY INSTALLATION
NETscout probes can be easily installed by simply typing in the IP address and
connecting the probe to the network. Once connected, NETscout immediately begins
collecting RMON statistics.
INDEPENDENT OPERATION
Frontier's intelligent probes/agents collect statistics continuously, even when
not communicating with the management station. Fault, performance, and
configuration information is accumulated and communicated to the management
station upon a fault or administrators request.
PROACTIVE MONITORING
NETscout intelligent probes/agents are constantly "watching" the network traffic
conditions which can lead to failures. The probes/agents can be configured to
automatically detect error conditions and log these errors upon occurrence. They
will not only notify the management station of the failure, but also provide
historical data for analysis.
VALUE ADDED DATA
Frontier's intelligent probes/agents add significant value to the data it
collects. With the Domain View-TM- architecture NETscout probes and agents can
be directed to focus and "zoom" in on a particular segment, node and type of
traffic in real time and report all RMON statistics to a management station.
This data can be viewed graphically, all from a single screen for easy diagnosis
of a problem.
MULTIPLE MANAGERS
Distributed network environments utilize multiple management stations. NETscout
probes/agents are concurrently accessible from more than one management station.
MULTISEGMENT MONITORING
Frontier's RMON based diagnostics architecture has the capability to monitor
more than one segment at a time. For example, the Model 6010 can monitor two
Ethernet segments concurrently. This provides a cost-effective way to deploy
diagnostic probes.
33
EXHIBIT D
PRODUCT TEST PROCEDURE
THIS EXHIBIT IS COMBINED WITH EXHIBIT G
34
EXHIBIT E
REPAIR CHARGES
Maintenance (single repair)
[*]
Replacement Units as Spares:
[*]
Maintenance Agreement (Hardware and Software):
[*]
Spare Part:
This is not applicable since all repairs are done on a factory repair basis.
--------------
[*] indicates material that has been omitted and for which confidential
treatment has been requested. All such omitted material has been filed with the
Securities and Exchange Commission pursuant to Rule 406 promulgated under the
Securities Act of 1933, as amended.
35
EXHIBIT F
PRIORITIZATION AND ESCALATION GUIDELINES
PROBLEM PRIORITIES DEFINITIONS:
Priority 1: Cisco customer's production network is [*]. [*] is
available. [*] are willing to commit [*] to resolve the
situation.
Priority 2: Cisco customer's production network is [*]. [*] is available.
[*] are willing to commit [*] to resolve the situation.
Priority 3: Cisco customer's Network performance is [*]. Network
functionality is [*] but [*] continue.
Priority 4: [*] requires information or assistance on [*].
ESCALATION GUIDELINE: [Note: these titles need to be adjusted for each
Frontier.]
Elapsed Time Priority 1 Priority 2 Priority 3 Priority 4
[*]
Frontier manager to whom the problem is escalated to will take ownership of the
problem and ensure that updates are provided to the appropriate Cisco personnel.
Cisco-initiated escalations will begin at the [Technical Group Leader level] and
proceed upward using the escalation guideline shown above for reference. This
will allow those most closely associated with the support resources to correct
any service problems quickly.
--------------
[*] indicates material that has been omitted and for which confidential
treatment has been requested. All such omitted material has been filed with the
Securities and Exchange Commission pursuant to Rule 406 promulgated under the
Securities Act of 1933, as amended.
36
EXHIBIT G
CISCO QUALITY PROGRAM
[*]
--------------
[*] indicates material that has been omitted and for which confidential
treatment has been requested. All such omitted material has been filed with the
Securities and Exchange Commission pursuant to Rule 406 promulgated under the
Securities Act of 1933, as amended.
37
EXHIBIT H
LABELING REQUIREMENTS
[*]
--------------
[*] indicates material that has been omitted and for which confidential
treatment has been requested. All such omitted material has been filed with the
Securities and Exchange Commission pursuant to Rule 406 promulgated under the
Securities Act of 1933, as amended.
38
EXHIBIT I
THIRD PARTY PRODUCT ROYALTIES AND LICENSES WHICH EXIST AS OF
THE EFFECTIVE DATE OF THIS AGREEMENT
Cisco shall be obligated to pay all license fees and royalties, if any, with
respect to any third party proprietary rights and technologies which are
required for the exercise of Cisco's Manufacturing Rights and which are listed
below. All other such third party royalties and licenses which are not listed
below and which are required for Cisco to exercise the Manufacturing Rights
under this Agreement shall be paid by Frontier.
39
