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EXHIBIT 10.39
[ASCEND LOGO]
ASCEND COMMUNICATIONS, INC.
NETWORK MANAGEMENT PARTNERS PROGRAM AGREEMENT
This Agreement ("Agreement") effective of the date as written below, is by and
between Ascend Communications, Inc. ("Ascend"), a Delaware corporation having a
principal place of business at Xxx Xxxxxx Xxxxx, Xxxxxx Xxx Xxxxxxx, Xxxxxxx,
XX 00000, XXX and Paradyne Corporation ("Partner"), a Delaware corporation
having a principal place of business at 0000 000xx Xxx X. Xxxxx, Xxxxxxx, 00000.
WHEREAS, Ascend is in the business of developing, manufacturing, and
marketing, communications products ("Ascend's Products") and
distributing, selling and licensing such Products to Ascend's
customers ("Customers");
WHEREAS, Partner is in the business of manufacturing, selling, licensing
and servicing network management products known as DCE Manager
and Performance Wizard ("Partner's Products") and associated
hardware; and
WHEREAS, Ascend and Partner wish to enter into an arrangement in which
Partner develops an interface (the "Integration Module") between
Ascend's Navis and Partner's FrameSaver(R) SLV and/or NMS
platform of which all rights, design, and intellectual property
shall be owned by Partner, and
WHEREAS, Ascend offers, on a non-exclusive basis, to its partners Ascend's
Network Management Partners Program (the "Program") and Partner
desires to participate in the Program.
NOW THEREFORE, in consideration of the mutual promises herein contained, the
parties hereby agree as follows:
1. Under the Program, Ascend may reference sell to its Customers the
Integration Module, on a non-exclusive basis, US and international
Customers which may have need of Partner's Products, associated hardware,
and/or services. Partner shall contract directly with the Customers for the
provision, including Customer's evaluation, of such products and/or
technical support services. Partner and Ascend further agree:
a. that only as related to the sale of the network management solutions
incorporating Partner's Products and the Integration Module, Partner
shall act in a supporting role in formulating joint account strategy,
and in the planning, testing and integration of Ascend and Partner
products to support the Customers' networks, as Ascend reasonably
directs; and while it is agreed that Partner will retain primary
responsibility for all issues affecting the sale and delivery of
Partner's Products and services, Partner will work cooperatively with
Ascend to achieve the objectives of the joint account strategy;
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b. that Partner will provide at no cost to Ascend adequate
quantities of Partner's standard non-confidential documentation,
materials, and sales tools as agreed by the parties to be necessary
under this Agreement and which Ascend may provide to the Customers;
c. that in conjunction with the sale of Partner's Products and/or the
Integration Module Partner and Ascend will cooperate in a timely
manner and perform work as reasonably requested, including testing,
as authorized by the Customer and agreed upon by the parties to
insure the adequate support of the Customers and in the successful
integration of products into the Customers' networks;
d. that Partner will furnish on a best efforts basis and as mutually
agreed by the parties, necessary personnel to accomplish
interoperability testing at Partner's designated location;
e. that, hereto and made a part of this Agreement as Exhibit A,
Partner will undertake any necessary work to develop release 1 of
the Integration Module and nay other products required to allow
Partner's product(s) to work with Ascend's products, including
network management systems. Partner's expenditure on release 1 of
the Integration Module shall be limited to one staff year.
Follow-on releases of the Integration Module resulting in increased
levels of functional integration between Partner's network
management system and Ascend's network management system shall
optionally be jointly defined and implemented by both Ascend and
Partner. To support this development, Ascend agrees to provide
Partner with reasonable technical support as defined in the SOW to
ensure compatibility. Should the parties agree that it is necessary
that Ascend loan to Partner certain of Ascend's equipment, software
and/or documentation ("Equipment") to enable Partner to complete
such development, testing and integration activities as outlined in
this subsection, the parties agree that the terms and conditions of
the Equipment Loan Agreement attached as Exhibit A shall govern the
loan of such Equipment;
f. that at an agreed upon discount off of list prices Partner will
license the DCE Manager and Performance Wizard software directly to
the end user customer or give Ascend the right to distribute and
sublicense such software.
2. Partner's sales and technical contacts under this Agreement are:
Sales: Technical:
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Name: Xxxxxx Xxxxxx Name: Xxxx Xxxxx
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Phone: (000) 000-0000 Phone: (000) 000-0000
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Fax: (000) 000-0000 Fax: (000) 000-0000
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3. This Agreement shall be effective as of the date accepted in writing by a
corporate officer of Ascend and shall terminate upon sixty (60) days' prior
written notice by either party. No termination of this Agreement shall
affect any obligations incurred, as contemplated under this Agreement, prior
to the effective date of termination. The provisions of Sections 5, 6, 7, 8
and 9 shall survive the termination or expiration of this Agreement. Partner
acknowledges that Ascend may change or discontinue the Program at any time.
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contemplated under this Agreement, prior to the effective date of
termination. The provisions of Sections 5, 6, 7, 8 and 9 shall survive the
termination or expiration of this Agreement. Partner acknowledges that
Ascend may change or discontinue the Program at any time.
4. Partner is an independent contractor in all respects connected with this
Agreement, and neither Partner nor the employees of Partner shall be
considered employees or agents of Ascend for any purpose whatsoever.
5. Either party has the right to terminate this Agreement in the event that
the other party fails to cure any material breach within ten (10) days
following notice thereof.
Each party agrees that if it fails to comply with any of its obligations
under Sections 6 or 7 hereof, the other party will suffer immediate,
irreparable harm for which monetary damages may not be adequate and that,
in addition to all other remedies provided at law or in equity, the other
party shall be entitled to injunctive relief.
6. Partner and Ascend shall each (i) keep in confidence all products,
software, data, business or technical information, products, designs,
know-how, programs or intelligence, whether in machine readable or visually
readable form, which is the property of and is confidential and proprietary
to the other and/or its licensors ("Confidential Information"), (ii) use
Confidential Information only in fulfillment of its obligations under this
Agreement, (iii) not transfer or disclose Confidential Information to
anyone other than its employees and consultants who require disclosure in
connection with this Agreement and who are subject to confidentiality
obligations in substance at least as strict as these, and (iv) not copy
Confidential Information. The restrictions contained in this Agreement
against disclosure or dissemination of Confidential Information shall not
apply to information previously known or independently developed by the
receiving party, rightfully acquired from an ultimate source other than the
disclosing party, subsequently publicly disclosed by the disclosing party
or disclosed under requirement by law or a court order.
Upon the expiration or termination of this Agreement for any reason, each
party shall return to the other party all Confidential Information of the
other party. The confidentiality obligations of the parties will survive
termination or expiration of the contract for a period of three (3) years,
from the date of such termination or expiration.
7. Ascend and Partner will publicly announce the existence of this Agreement
subsequent to the execution of this Agreement. Partner will be given prior
opportunity to review the proposed text of the public announcement, and
will be allowed to make recommendations. Ascend and Partner will jointly
determine the timing of and the final text of this announcement.
In no event shall Partner disclose the existence, terms or substance of
this Agreement to any third party for any reason without the prior written
consent of an officer of Ascend. Ascend may in its sole discretion publicly
announce the existence of this Agreement in accordance with this Section 7.
Notwithstanding the foregoing, after such public
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4. Partner is an independent contractor in all respects connected with this
Agreement, and neither Partner nor the employees of Partner shall be
considered employees or agents of Ascend for any purpose whatsoever.
5. Either party has the right to terminate this Agreement in the event that
the other party fails to cure any material breach within ten (10) days
following notice thereof.
Each party agrees that if it fails to comply with any of its obligations
under Sections 6 or 7 hereof, the other party will suffer immediate,
irreparable harm for which monetary damages may not be adequate and that,
in addition to all other remedies provided at law or in equity, the other
party shall be entitled to injunctive relief.
6. Partner and Ascend shall each (i) keep in confidence all products,
software, data, business or technical information, products, designs,
know-how, programs or intelligence, whether in machine readable or
visually readable form, which is the property of and is confidential and
proprietary to the other and/or its licensors ("Confidential
Information"), (ii) use Confidential Information only in fulfillment of
its obligations under this Agreement, (iii) not transfer or disclose
Confidential Information to anyone other than its employees and
consultants who require disclosure in connection with this Agreement and
who are subject to confidentiality obligations in substance at least as
strict as these, and (iv) not copy Confidential Information. The
restrictions contained in this Agreement against disclosure or
dissemination of Confidential Information shall not apply to information
previously known or independently developed by the receiving party,
rightfully acquired from an ultimate source other than the disclosing
party, subsequently publicly disclosed by the disclosing party or
disclosed under requirement by law or a court order.
Upon the expiration or termination of this Agreement for any reason, each
party shall return to the other party all Confidential Information of the
other party. The confidentiality obligations of the parties will survive
termination or expiration of the contract for a period of three (3) years,
from the date of such termination or expiration.
7. Ascend and Partner will publicly announce the existence of this Agreement
subsequent to the execution of this Agreement. Ascend and Partner will
jointly determine the timing of and the text of this announcement.
8. In no event shall either party use the other party's name or any
trademark, trade name or service xxxx on any product or in any promotional
literature, advertising or other public announcement without the prior
written consent of the other party.
9. IN NO EVENT SHALL EITHER PARTY BE LIABLE, WHETHER IN CONTRACT, IN TORT OR
ON ANY OTHER BASIS, FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT OR SPECIAL
DAMAGES OR LIABILITIES, OR FOR LOSS OF REVENUE, LOSS OF BUSINESS OR OTHER
FINANCIAL LOSS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM
EACH PARTY'S ACTS OR OMISSIONS, EVEN IF SUCH PARTY HAS REASON TO KNOW OF
THE POSSIBILITY OF SUCH A LOSS.
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10. This Agreement shall be binding upon and inure to the benefit of the
parties and their respective successors and assigns, but neither party
shall have the right to assign or otherwise transfer its rights under
this Agreement without receiving the express prior written consent of
the other party. Either party may, however, assign this Agreement in the
event of a sale of all or substantially all of the other party's assets
or stock to which assignment the other party consents in advance.
Notwithstanding the foregoing, should a sale of all or substantially all
of Partner's assets or stock occur to a competitor of Ascend's, Partner
shall immediately notify Ascend of such event and Ascend shall have the
right in its sole discretion to immediately terminate this Agreement.
Notwithstanding the foregoing, either party shall with prior written
notice and without the approval of the other party have the right to
assign this agreement to its parent or subsidiary or affiliate of such
party or of its parent.
11. Either party may elect to continue performance hereunder notwithstanding
any breach of this Agreement and such performance shall not constitute a
waiver of any of such party's rights hereunder.
12. Any notice required or permitted to be given under this Agreement shall
be effective when received by a party at the address set forth above or
at such other address as such party may request by notice.
13. This Agreement will be governed by and construed according to the laws of
the State of Delaware, without regard to that body of law controlling
conflicts of law.
14. If any provision or provisions of this Agreement shall be held to be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
This Agreement, together with any and all exhibits, attachments, and schedules
referred to herein, and expressly made a part hereof that are duly signed by the
parties is the complete and exclusive statement of the agreement between the
parties, superseding all proposals or prior agreements, oral or written, and all
other communications between the parties relating to the subject matter of this
Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed in
duplicate by their duly authorized representatives as of the day and year first
written above.
ACCEPTED AND AGREED ACCEPTED AND AGREED
ASCEND COMMUNICATIONS, INC. PARTNER
BY: ????? BY: ?????
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PRINT: V.P. Product Marketing PRINT: Xxxx Xxx
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TITLE: ????? TITLE: President and CEO
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EFFECTIVE DATE: 11/3/98 DATE: October 29, 1998
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EXHIBIT A
EQUIPMENT LOAN AGREEMENT
THIS EQUIPMENT LOAN AGREEMENT ("Agreement") is made effective as of the date
written below by and between Ascend Communications, Inc. ("Ascend"), having a
principal place of business at having a principal place of business at Xxx
Xxxxxx Xxxxx, Xxxxxx Xxx Xxxxxxx, Xxxxxxx, XX 00000, and Paradyne ("Partner"),
having a principal place of business at 0000 000XX Xxx X. Xxxxx, Xxxxxxx, 00000.
In consideration of the shipment by Ascend of the Equipment referred to below
and receipt hereof by Partner, the parties agree that the terms and conditions
contained herein shall govern the loan of the Ascend Products, including
software, listed on the attached Equipment Schedule ("Equipment") by Ascend to
Partner.
1. Ascend agrees to deliver to Partner the Equipment (the "Equipment") for the
period (the "Loan Period") commencing upon Ascend's delivery of Equipment
to a common carrier for delivery to Partner F.O.B. and terminating upon
Partner's completion of work to be provided by Partner under the Network
Management Partners Program Agreement dated ______________ between the
parties. Partner shall utilize the Equipment in accordance with the terms
and conditions of this Equipment Loan Agreement solely for purposes of
performing the Services under the Network Management Partners Program
Agreement. Nothing herein shall be construed as granting Partner a license
under any patent, patent application, trade secret, trademark, or copyright
which Ascend may have or obtain relating to the Equipment or Ascend's other
products, whether announced or proposed.
2. Title to and ownership of the Equipment are and shall at all times remain
with Ascend. Partner shall not perform any act inconsistent with Ascend's
title and ownership of the Equipment. Delivery of all Equipment shall be
made F.O.B. Ascend's manufacturing facility. Risk of loss of or damage to
the Equipment shall pass to Partner upon Ascend's delivery of Equipment to
a common carrier and shall remain with Partner until the Equipment is
returned to Ascend. All software, documentation or any information
disclosed pursuant to the terms of this Agreement are confidential and
proprietary to Ascend or its licensors and shall not be reproduced or
copied by Partner, and Partner shall not use the software, documentation,
Equipment or any information disclosed hereunder except as expressly
authorized herein or in the Agreement. In no event, whether expressly, by
implication or otherwise, are any Ascend proprietary rights granted
hereunder, either now or hereafter, as to or related to the Equipment or to
any other Ascend products or any enhancements or modifications. Partner
acknowledges that any unauthorized use or disclosure of any of such
information would seriously harm Ascend's competitive position.
3. During the term of the Loan Period and in accordance with this Agreement,
Ascend grants to Partner a nonexclusive, nontransferable license to use the
object code form of the software products included with the Equipment only
as necessary to perform the services set forth in the Network Management
Partners Program Agreement.
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4. Partner is responsible for installation and deinstallation of the
Equipment. Ascend agrees to provide reasonable assistance for installation
and deinstallation. The Equipment shall at all times remain at the location
specified on the attached Equipment Schedule. Partner shall not transfer,
assign, disclose or otherwise make available the Equipment, including and
documentation or any portion or copy thereof, to any third party except as
expressly authorized under this Agreement.
5. At the expiration of the Loan Period (unless earlier terminated) the
Equipment and all related documentation shall be returned to Ascend in the
same condition as delivered, normal wear and tear excepted. Partner shall
pay for all costs of Equipment repair and/or refurbishment. No
modifications and/or additions shall be made to the Equipment by Partner
without Ascend's prior written approval. If modifications and/or additions
have been authorized by Ascend, the Equipment shall be restored to its
original condition by Partner at its expense prior to return to Ascend. If
the Equipment is not returned within ten (10) days after notification that
the Loan Period has expired or has been terminated, Ascend shall invoice
Partner and a sale and license thereof shall be conclusively considered to
have occurred at Ascend's then-current price list, subject to Ascend's
standard terms and conditions of sale and license which shall apply to the
sale of Equipment and this Agreement shall be deemed terminated.
6. The Equipment is made available to Partner at Partner's request, on an
"as-is" basis, with no warranties, representations or obligations or
undertakings on Ascend's behalf whatsoever with respect thereto. Without
limitation, Ascend accepts no responsibility to maintain the Equipment, nor
with respect to any product deficiencies or defects. ASCEND MAKES NO
EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES OF ANY KIND, INCLUDING BUT
NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR
PARTICULAR PURPOSE. Ascend shall not be liable for any direct, indirect,
incidental, special or consequential damages arising out of or in
connection with the delivery, possession, use or operation of the
Equipment.
7. In the event Partner neglects or fails to perform any of its obligations
under this Agreement and such default is not corrected to Ascend's
satisfaction within five (5) days of receipt of Ascend's notice of such
default, then this Agreement may be immediately terminated by Ascend. If
the Equipment becomes, or in Ascend's opinion likely to become, the subject
of a U.S. intellectual property infringement claim, this Agreement shall
immediately terminate and Ascend, at its own cost and expense will remove
the Equipment and neither party shall have any further liability to the
other under this Agreement or otherwise. In any event, and without
limitation, Partner shall reimburse Ascend for all costs and expenses
(including attorney's fees) incurred by Ascend in repossessing the
Equipment.
8. This Agreement is not assignable. Any such assignment shall automatically
be null and void. This Agreement supersedes all prior Agreements concerning
the subject matter herein and may not be changed or modified except by a
written communication signed by both parties. This Agreement constitutes
the entire agreement governing the Equipment specified herein between
Ascend and Partner and may not be modified or amended other than by a
written instrument executed by both parties. This Agreement shall be
governed by the laws of the state of Delaware.
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A valid contact binding upon the parties hereto shall become effective upon
execution of this Agreement by duly-authorized representative of both parties.
Ascend Communications Corp. Partner
By: /s/ Xxxxxx X. DeCindo By: /s/ Xxxx Xxx
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Name Xxxxxx X. DeCindo Name: Xxxx Xxx
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Title: VP Product Marketing Title: President and CEO
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Effective Date: March 3, 1998 Date: October 29, 1998
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EQUIPMENT SCHEDULE
EQUIPMENT
Detailed below is the proposed equipment for loans to ____________ ("Partner"):
Item Part No Description Qty
EQUIPMENT LOCATION
The Equipment shall remain located at partner's facility at Largo, Florida.
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