EXHBIT 10.9
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CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSIONP URSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT.
ASTERISKS(*) DENOTE SUCH OMISSIONS.
PROCUREMENT AGREEMENT
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This Procurement Agreement ("Agreement") is made as of the 17th day of May, 2000
("Effective Date") between Avici Systems, Inc., a Delaware corporation, with its
address at 000 Xxxxxxxxx Xxxxxx, X. Xxxxxxxxx, Xxxxxxxxxxxxx 00000-0000
("Avici") and Xxxxxxxx Communications, Inc., a Delaware corporation, with its
address at Xxx Xxxxxxxx Xxxxxx, Xxxxx, Xxxxxxxx 00000 ("Customer").
The parties agree as follows:
1.0 DEFINITIONS
1.1 "Affiliate" shall mean with respect to any entity, any other entity which
controls, is controlled by, or is under common control with, such entity,
and for these purposes, "control" means interest, voting or otherwise, of
more than fifty percent (50%) in an entity.
1.2 "Delivery Point" shall have the meaning described in Section 3.3.
1.3 "Documentation" refers to manuals, handbooks, maintenance libraries and
other publications of Avici which are normally supplied by Avici with the
Product or Software.
1.4 "POP" shall mean a telecommunications point of presence and unless the
context indicates otherwise, refers to a Customer-designated point of
presence.
1.5 "Product" means a terabit switch router which may be comprised of various
combination/configurations of the products and equipment set forth in
Attachment A with the term Product including all such possible
combinations/configurations. Unless otherwise indicated, Product also
includes all Software.
1.6 "Services" means all the services provided by Avici to Customer pursuant to
the terms of this Agreement or a purchase order issued under this
Agreement.
1.7 "Software" refers to software products in machine executable, object code
form, supplied with, or embedded in, a Product. The term Software applies
to all parts of Software, and to new releases, updates and modifications of
Software and of Third Party Software.
1.8 "Specifications" means the specifications contained in the relevant
Documentation or as set forth in Attachment B.
1.9 "Third Party Software" means Software which is independently developed by a
third party and licensed or sublicensed to Customer by Avici in connection
with this Agreement.
Page 1 of 37
2.0 PURCHASE TERMS
2.1 PURCHASES. During the term of this Agreement and subject to the terms and
conditions of this Agreement, Avici shall sell to Customer and Customer
shall purchase (or in the case of Software, license), from Avici, Products,
Software and/or Services in all aggregate amount of at least [CONFIDENTIAL
TREATMENT REQUESTED]/*/ at the prices and fees listed in Attachment
A [CONFIDENTIAL TREATMENT REQUESTED]/*/. For purposes of clarity, to the
extent the prices actually paid by Customer under a purchase order differs
from those set forth in Attachment A, then the actual prices paid by
Customer shall be utilized for the purposes of determining if Customer has
met its purchase obligations under this Section 2.1 and Section 2.2.
[CONFIDENTIAL TREATMENT REQUESTED]/*/. It is understood that the prices and
fees set forth in Attachment A represent Avici's list prices and fees
Current as of the Effective Date. If, during the term of this Agreement,
Avici's list prices and fees change, Customer's purchases made thereafter
shall be at the new list price or fee [CONFIDENTIAL TREATMENT
REQUESTED]/*/.
2.2 PURCHASE TIMING.
a) Customer shall (i) purchase (or in the case of Software, license) at
[CONFIDENTIAL TREATMENT REQUESTED]/*/ of Product, Software and/or Services
which shall be shipped by December 31, 2000; and (ii) between January 1,
2001 and December 31, 2001, purchase (or in the case of Software, license)
at least the lesser of: (x) [CONFIDENTIAL TREATMENT REQUESTED]/*/ of
Product, Software and/or Services or (y) the difference between
[CONFIDENTIAL TREATMENT REQUESTED]/*/ and the total amount of the Products,
Software and/or Services which were shipped prior to December 31, 2000. For
purposes of determining when purchases are to be credited against the
obligations in Sections 2.1 and 2.2, the date of shipment shall be used.
Provided that, if Products or Software are, through no fault of Customer,
not shipped on the accepted shipment date, the accepted shipment date shall
for the purpose of making the calculations under Section 2.1 and this
Subsection 2.2(a), be deemed to be the shipment date.
b) Prior to October 27, 2000, Customer shall issue a purchase order or
purchase orders to Avici for Products, Software and/or Services with
requested shipment dates and in amounts sufficient to enable Avici to ship
Products, Services and/or Software in all aggregate amount of at least
[CONFIDENTIAL TREATMENT REQUESTED]/*/ by no later than December 31, 2000,
provided such shipment dates will be determined in accordance with the
provisions of Section 3.1. Customer shall issue a purchase order or
purchase orders to Avici for Products, Software and/or Services with
requested shipment dates and will amounts sufficient to enable Avici to
ship Products, Services and/or Software in an aggregate amount of at least
[CONFIDENTIAL TREATMENT REQUESTED]/*/ by no later than December 31, 2001
provided that such shipment dates shall be determined in accordance with
the provision of Section 3.1.
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/*/ [CONFIDENTIAL TREATMENT REQUESTED] 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 EXCHANGE ACT OF 1933,
AS AMENDED.
Page 2 of 37
2.3 PERFORMANCE CONTINGENCIES.
a) (i) Customer's obligation to purchase (or in the case of Software,
license) any Product, Software and/or Services under this Agreement
shall be subject to the Product having successfully passed a test
("Test"), the scope of the Test being limited to demonstrating the
Product's compliance with the Specifications in Attachment B. The
terms of the Test shall be mutually agreed between Customer and Avici
within [CONFIDENTIAL TREATMENT REQUESTED]/*/ from the Effective Date.
Avici shall be responsible for preparing and submitting to Customer
the initial, proposed version of the Test. The Test will be conducted
[CONFIDENTIAL TREATMENT REQUESTED]/*/ utilizing a Product installed by
Avici, [CONFIDENTIAL TREATMENT REQUESTED]/*/
(ii) Within [CONFIDENTIAL TREATMENT REQUESTED]/*/ from agreement upon
the Test, Avici shall provide Customer written notice indicating that
the Test Unit is ready for testing ("Notice of Readiness to Test") and
shall contain a proposed schedule for conducting the Test, indicating
proposed dates and times. Within [CONFIDENTIAL TREATMENT REQUESTED]/*/
from receipt of the Notice for Readiness to Test, Customer and Avici
shall agree upon a schedule for conducting the Test ("Test Schedule")
which schedule shall provide for the Test to be conducted by no later
than [CONFIDENTIAL TREATMENT REQUESTED]/*/. Within [CONFIDENTIAL
TREATMENT REQUESTED]/*/of completion of the initial Test, Customer
shall advise Avici, in writing, if the Test Unit has (X) successfully
performed or (Y) failed to successfully perform the Test.
(iii) Should the Test Unit fail to successfully perform the initial
Test, then Avici shall, for a period of [CONFIDENTIAL TREATMENT
REQUESTED]/*/ following the notice from Customer that the Test Unit
has failed to successfully perform the Initial Test, have the right to
carry out any repairs or modifications to the Test Unit Avici deems
appropriate and upon notice from Avici that the Test Unit is ready for
re-testing, reperform the Test subject to a schedule Mutually agreed
between the parties within [CONFIDENTIAL TREATMENT REQUESTED]/*/ of
the notice from Avici that Avici is really to reperform the Test.
Customer shall promptly notify Avici, in writing, of the results of
any such retesting. Avici shall have, during the [CONFIDENTIAL
TREATMENT REQUESTED]/*/ period described in this clause (iii), the
right to reperform the Test more than once.
(iv) Within [CONFIDENTIAL TREATMENT REQUESTED]/*/ of successful
completion of the Test, Customer and Avici shall jointly execute an
acknowledgement ("Acknowledgement Certificate") that the Test Unit has
satisfied the Test. It is understood that the issuance of an
Acknowledgement Certificate shall not relieve or excuse Avici from the
performance of any of its obligations, nor constitute a waiver of any
fights or remedies Customer may have under this Agreement, including
any warranty obligations in respect to the Product and Software.
(v) If by the [CONFIDENTIAL TREATMENT REQUESTED]/*/ following the date
of Customer's notice that the Test Unit has failed to successfully
perform the initial Test, the Test Unit,
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/*/ [CONFIDENTIAL TREATMENT REQUESTED] 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 EXCHANGE ACT OF 1933,
AS AMENDED.
Page 3 of 37
despite any modifications or repair Avici chose to make to the Test
Unit during such period, has still not successfully performed the
Test, then Customer shall be entitled to terminate this Agreement
pursuant to the terms of Section 4.3
(vi) The cost of preparation for, and the conducting of, the Test
shall he borne by Avici. Avici shall be responsible for any loss of,
or damage to, the Test Unit unless the damage or loss is caused by
Customer's representatives, employees, agents or, contractors.
Customer shall have the right to have a representative or,
representatives present during each performance of the Test.
(vii) [CONFIDENTIAL TREATMENT REQUESTED]/*/
(b) Avici shall meet the development milestones set forth in Attachment B-1
concerning the addition of new features or capabilities to the Product.
Upon the development of each new feature or capability, it will be made
available by Avici for purchase by the Customer and each such new feature
or capability shall become part of the Specifications and such amended
Specifications shall apply to the relevant Products shipped thereafter. No
later than December 31, 2000, the parties will agree in writing upon
specifications (with timelines) in addition to those contained in
Attachment B-1, such additional specifications shall, upon agreement
thereto by the parties, apply to all Product and/or Software scheduled to
be shipped after December 31, 2000. These additional specifications which
are to be agreed by December 31, 2000, will be limited to applicable core
router related protocols and other technologies that are, or will be,
adopted by major standards bodies (IETF, IEEE, ITU) in the year 2001 and
technologies that are, or will be, generally commercially available within
the industry in 2001. Specifications not in effect when particular
Products and/or Software are shipped shall not be applied retroactively
with respect to such previously shipped item.
(c) Avici shall, with respect to each feature, capability or specification
described in Subsection 2.3(b), promptly provide Customer with notice of
such development thereof.
(d) If Avici fails to meet a milestone as specified in Attachment B-1 or as
will be specified by December 31, 2000, Customer shall remain obligated to
purchase Products unrelated to such milestone which Customer has agreed to
purchase Pursuant to this Agreement.
2.4 PAYMENT TERMS.
(a) Avici will invoice Customer upon shipment of Products, and upon the
completion of any Services. Payment terms are [CONFIDENTIAL TREATMENT
REQUESTED]/*/, from the date Customer receives the invoice. Subject to
Avici's credit approval and Customer's continuing good credit standing,
Customer shall pay all invoices within [CONFIDENTIAL TREATMENT
REQUESTED]/*/ of receipt. If Customer disputes any invoice rendered (or a
portion thereof), Customer shall so notify Avici and
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/*/ [CONFIDENTIAL TREATMENT REQUESTED] 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 EXCHANGE ACT OF 1933,
AS AMENDED.
Page 4 of 37
the parties will use their best efforts to resolve such dispute
expeditiously. Provided that Customer so notifies Avici of a disputed
invoice and there is a good-faith basis for such dispute, the time for
paying the portion of the invoice in dispute shall be extended by a period
of time equal to the time between Avici's receipt of such notice of dispute
from Customer and [CONFIDENTIAL TREATMENT REQUESTED]/*/ after resolution of
such dispute. Payment of the amount determined to be due shall be made by
Customer with interest from the original due date at the rate of
[CONFIDENTIAL TREATMENT REQUESTED]/*/ per annum. Customer shall pay for
non-disputed items in accordance with the terms of this Agreement. All
invoices will be payable by check or wire transfer, to Avici's account.
(b) With respect to undisputed amounts Avici reserves the right to impose a
late payment charge of [CONFIDENTIAL TREATMENT REQUESTED]/*/ per month, or
the maximum allowed by law, whichever is less for each month that any
payment is late, excluding the month in which the payment was due and not
paid.
2.5 CURRENCY AND TAXES. All payments will be made in United States dollars.
Customer will pay all municipal, state, county or federal taxes including,
but not limited to sales, use excise, value added or other taxes which may
be levied upon the sale, license, transfer, ownership or installation of
the Products (except for any taxes imposed upon the Products prior to
shipment or taxes imposed upon the income of Avici or upon its employment
base).
[CONFIDENTIAL TREATMENT REQUESTED]/*/
3.0 TERMS OF SUPPLY
3.1 ORDERING. All purchases under this Agreement will be initiated by
Customer's issuance of written purchase orders to Avici. Such purchase
orders shall be submitted to Avici's address set forth in Section 15.4.
Avici will confirm receipt of Customer's orders within [CONFIDENTIAL
TREATMENT REQUESTED]/*/ of receipt. Avici will execute and deliver to
Customer an order acceptance within [CONFIDENTIAL TREATMENT REQUESTED]/*/
after Avici's receipt of each purchase order. Acknowledgment of receipt and
order acceptance shall be sent by Avici to the attention of Customer's
employee or agent who signed the relevant purchase order. At a minimum,
each purchase order shall specify the following items:
a) A complete list of the Products and Services covered by the purchase
order, specifying the quantity, part number and description of each;
b) The price of each Product and Service shall be as set forth on the
attached price list and subject to the terms of this Agreement, after any
applicable discounts (including any discount due Customer by virtue of
Section 2.6), and any additional charges and costs made in accordance with
the terms of this Agreement;
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/*/ [CONFIDENTIAL TREATMENT REQUESTED] 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 EXCHANGE ACT OF 1933,
AS AMENDED.
Page 5 of 37
c) The billing address, the destination to which the Products will be
delivered, and the requested shipment date; and
d) The signature of Customer's employee or agent who possesses the
authority to place such an order.
Avici shall not be obligated to accept any order in which Customer fails to
include the items in "a" through "d", above. However, if such order is
accepted, such failure shall not cause Customer, not to receive the
applicable discount for such order. Should all of the items in "a" through
"d" be included in the order and if the requested shipment date is (or, in
the event of multiple shipment dates, all requested shipment dates under
the order) at least [CONFIDENTIAL TREATMENT REQUESTED]/*/ from the date of
such order, including the requested shipment date or dates, Avici shall
accept such order, subject to the other terms and conditions of this
Agreement. It is understood that Customer shall be entitled to purchase
Product consisting of those configurations available from Avici upon the
date such purchase order, it shall promptly advise Customer in writing to
that effect.
3.2 NON-VARIANCE. No purchase order, acknowledgment form, invoice or other
ordering document or communications for either party shall vary the terms
and conditions of this Agreement unless both parties expressly so agree in
writing. In the event of any conflict between the terms and conditions of
this Agreement and those of any purchase order, acknowledgment form,
invoice or other ordering document or communication, the terms and
conditions of this Agreement shall prevail.
3.3 SHIPPING. Avici shall ship the Products on the shipment date agreed to by
Avici in its acceptance of the purchase order. All items ordered by
Customer under this Agreement will be suitably packed for shipment in
Avici's standard containers, marked for shipment to the designated address
or addresses specified by Customer in Customer's purchase older, and
delivered to a carrier or forwarding agent chosen by Customer. If Customer
fails to designate a carrier, forwarding agent or type of conveyance, Avici
will make this designation in conformance with its standard shipping
practices. Delivery will be F.O.B Avici's facility ("Delivery Point"),
[CONFIDENTIAL TREATMENT REQUESTED]/*/ All freight, insurance and other
shipping expenses from Delivery Point to the destination specified by
Customer as well as any expenses related to Customer's special packing
requests, will be borne by Customer. [CONFIDENTIAL TREATMENT REQUESTED]/*/
3.4 DELAY AND CANCELLATION OF ORDERS. Partial shipments shall only be made
with Customer's previous written approval, which shall not be unreasonably
withheld. If shipment of an order is delayed more than [CONFIDENTIAL
TREATMENT REQUESTED]/*/ but less than [CONFIDENTIAL TREATMENT REQUESTED]/*/
beyond the agreed shipment date, then Customer shall receive [CONFIDENTIAL
TREATMENT REQUESTED]/*/ of the order or the delayed portion if a partial
shipment is allowed by Customer. If shipment of an order is delayed more
than [CONFIDENTIAL TREATMENT REQUESTED]/*/ but less than [CONFIDENTIAL
TREATMENT REQUESTED]/*/ beyond the scheduled shipment date, then Customer
shall receive [CONFIDENTIAL TREATMENT REQUESTED]/*/ of the order or the
delayed portion if a partial shipment is allowed by
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/*/ [CONFIDENTIAL TREATMENT REQUESTED] 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 EXCHANGE ACT OF 1933,
AS AMENDED.
Page 6 of 37
Customer. The amount of the purchase commitments set forth in Sections
2.1 and 2.2 shall be [CONFIDENTIAL TREATMENT REQUESTED]/*/. If shipment is
delayed more than [CONFIDENTIAL TREATMENT REQUESTED]/*/ from the
mutually agreed upon shipment date due solely to causes in Avici's
reasonable control, then Customer, at its election, may either receive a
[CONFIDENTIAL TREATMENT REQUESTED]/*/ on the order or cancel the affected
order upon written notice provided such cancellation notice is delivered to
Avici prior to shipment. In the event Customer exercises its right to
cancel a purchase order, Customer's purchase commitments under Sections 2.1
and 2.,2 of this Agreement shall be [CONFIDENTIAL TREATMENT REQUESTED]/*/.
3.5 RECONFIGURATION, RESCHEDULING AND CANCELLATION OF ORDERS.
a) Upon written notice to Avici provided at least [CONFIDENTIAL TREATMENT
REQUESTED]/*/ prior to the scheduled ship date, Customer may
reconfigure any purchase order or reschedule the delivery of any Products
scheduled for shipment by up to [CONFIDENTIAL TREATMENT REQUESTED]/*/ at no
Charge. Acceptance of Customer's request to reconfigure or reschedule any
delivery with less than such [CONFIDENTIAL TREATMENT REQUESTED]/*/ prior
written notice to Avici shall be at the sole discretion of Avici; provided
that, Avici shall use commercially reasonable efforts to accommodate any
request by Customer to reschedule or reconfigure upon less than such
[CONFIDENTIAL TREATMENT REQUESTED]/*/ notice.
b) Upon at least [CONFIDENTIAL TREATMENT REQUESTED]/*/ written notice to
Avici prior to the originally scheduled shipment date of Products ordered
pursuant to written, accepted purchase orders under this Agreement,
Customer may cancel any shipment date of the Products without charge. The
following cancellation charges shall apply to any cancellations made by
Customer less than [CONFIDENTIAL TREATMENT REQUESTED]/*/ prior to accepted
shipment date as liquidated damages and not as a penalty and shall
constitute Avici's exclusive remedy for cancellation and is based on the
number of days prior to the accepted shipment date that written notice of
cancellation is received by Avici:
Days Notice Charge
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($ of canceled order)
[CONFIDENTIAL TREATMENT REQUESTED]/*/
However, the amount of any purchase order cancelled under this Section 3.5
shall not reduce Customer's obligations in Sections 2.1 (Purchases) and 2.2
(Purchase Timing) of this Agreement.
3.6 INSTALLATION. If requested by Customer, Avici will install the Products
and/or Software, or any portion requested, at Customer's facilities at
[CONFIDENTIAL TREATMENT REQUESTED]/*/ for such
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/*/ [CONFIDENTIAL TREATMENT REQUESTED] 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 EXCHANGE ACT OF 1933,
AS AMENDED.
Page 7 of 37
services. All charges for installation shall be applied against Customer's
procurement obligations under Sections 2.1 and 2.2 of this Agreement.
3.7 PRODUCT CHANGES. Avici may, at any time, make changes in, or substitutions
to, the Product, any component thereof or any Software provided the changes
(i) are made for safety purposes or (ii) do not impact upon form, fit,
function features, use or performance of such items in a manner which
results in material changes to Customer's operations procedures or
negatively impact Customer's network operations. With respect to changes
in, or substitutions to, the Product, components thereof or any Software
which does impact upon the form, fit, function features, use or performance
of such items in manner which results in material changes to Customer's
operations procedures or negatively impact Customer's network operations,
Avici will notify Customer in writing [CONFIDENTIAL TREATMENT
REQUESTED]/*/prior to the effective date of such change or substitution of
its intent to make the change or substitution. In the event any such change
or substitution is not desired by Customer, Customer will so notify Avici
within [CONFIDENTIAL TREATMENT REQUESTED]/*/ from the date of the notice of
the proposed change or substitution, however, Avici will continue to make
available to Customer for a period of [CONFIDENTIAL TREATMENT REQUESTED]/*/
from the effective date of Avici's substitution or change and at the price
being charged at the time of such notice, the Product, component thereof or
Software which is subjcct to change or substitution. Provided however, if
Avici must make changes in, or substitutions to, the Product, components
thereof or any Software which does impact upon the form, fit, function
features, use or performance of such items in a manner which results in
material changes to Customer's operations procedures or negatively impact
Customer's network operations, which changes or substitutions are unplanned
or unanticipated by Avici ("Exceptional Changes"), Avici will notify
Customer in writing [CONFIDENTIAL TREATMENT REQUESTED]/*/ prior to the
effective date of such Exceptional Change. In the event any such
Exceptional Change is not desired by Customer, Customer will so notify
Avici within [CONFIDENTIAL TREATMENT REQUESTED]/*/ from the date of the
notice of the proposed Exceptional Change, however, Avici will continue to
make available to Customer for a period of [CONFIDENTIAL TREATMENT
REQUESTED]/*/ from the effective date of Avici's Exceptional Change and at
the price being charged at the time of notice of the Exceptional Change,
the Product, component thereof or Software which is subject to the
Exceptional Change.
3.8 PRODUCT SUPPORT AND UNLICENSED SPARE. For a period of [CONFIDENTIAL
TREATMENT REQUESTED]/*/ from the date of shipment ("Supported Period"),
Avici will continue to make available for purchase by Customer repair/spare
parts for Avici Products and shall provide maintenance and technical
support services at the then current price for all Products and Software
furnished pursuant to this Agreement. Customer may purchase a single
Product which will be shipped without a software license for the purpose of
maintaining such Product as a spare. When Customer utilizes the spare
Product to effect a replacement of a non-functioning Product, Customer will
issue a purchase order to license the Software for such spare at the then
current price.
3.9 PRODUCT DISCONTINUANCE. (a) Subject to Avici's obligations under Section
3.8, Avici may discontinue sale of the Product, component thereof or
Software if Avici gives Customer at least [CONFIDENTIAL TREATMENT
REQUESTED]/*/ notice thereof; provided, however, that Avici agrees not to
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/*/ [CONFIDENTIAL TREATMENT REQUESTED] 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 EXCHANGE ACT OF 1933,
AS AMENDED.
Page 8 of 37
discontinue sale of any such item until the earlier of (i) the date
Customer satisfies its purchase obligation under this Agreement, or (ii)
the expiration of the term of this Agreement. In the event of any such
discontinuation of the Product, component thereof or Software, Avici will
provide Customer with a suggested replacement produced by Avici and which
would be available for the remainder of the term of this Agreement.
Customer will have the right to substitute the replacement item for the
discontinued Product, component thereof or Software under this Agreement,
at the then Current list price then being charged other customers by Avici
[CONFIDENTIAL TREATMENT REQUESTED]/*/. If Customer elects not to use the
suggested replacement item, Avici will offer Customer a [CONFIDENTIAL
TREATMENT REQUESTED]/*/ period beginning the day of the notice of
discontinuance within which Customer can place orders for the discontinued
item. Customer may give a last order ("One Time Buy Order") immediately
prior to the end of the [CONFIDENTIAL TREATMENT REQUESTED]/*/ period. All
purchases made under the preceding two sentences shall be at the prices
which Customer was paying for the discontinued item immediately prior to
the notice of discontinuance. The One-Time Buy Order is non-cancelable,
non-reschedulable and non-returnable. Items ordered with the One-Time Buy
Order will be delivered to Customer as requested by Customer but no later
than [CONFIDENTIAL TREATMENT REQUESTED]/*/ after the notice of
discontinuance.
[CONFIDENTIAL TREATMENT REQUESTED]/*/
3.10 FORECASTS. No later than [CONFIDENTIAL TREATMENT REQUESTED]/*/, Customer
shall provide Avici with a forecast setting forth the Customer's estimated
[CONFIDENTIAL TREATMENT REQUESTED]/*/ requirements for Products for the
[CONFIDENTIAL TREATMENT REQUESTED]/*/, Customer shall provide Avici with a
forecast setting forth the Customer's estimated [CONFIDENTIAL TREATMENT
REQUESTED]/*/ requirements for Products for the [CONFIDENTIAL TREATMENT
REQUESTED]/*/. After [CONFIDENTIAL TREATMENT REQUESTED]/*/, Customer shall,
no later than [CONFIDENTIAL TREATMENT REQUESTED]/*/ prior to the beginning
of each [CONFIDENTIAL TREATMENT REQUESTED]/*/, provide Avici with a
[CONFIDENTIAL TREATMENT REQUESTED]/*/ rolling forecast, updated
[CONFIDENTIAL TREATMENT REQUESTED]/*/, setting forth the Customer's
estimated [CONFIDENTIAL TREATMENT REQUESTED]/*/ requirements for Products.
All forecasts supplied by Customer hereunder shall be non-binding as to all
amounts forecasted.
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/*/ [CONFIDENTIAL TREATMENT REQUESTED] 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 EXCHANGE ACT OF 1933,
AS AMENDED.
Page 9 of 37
3.11 EXPORT OF PRODUCTS. As to all shipments with destinations outside of the
US, Avici and Customer shall comply with all applicable export and import
regulations and Customer shall provide such documentation and assistance
reasonably necessary to ensure US export control compliance. For shipment
other than in the US, Customer will bc solely responsible for (i) obtaining
any license that may be required to import the Products into its country
(ii) clearing the Products thought local customers upon their arrival to
Customer Country and (iii) paying all customs duties, taxes and other
charges assessed on such importation's in such country.
3.12 US GOVERNMENT RESTRICTED RIGHTS. Notice - distribution and use of
products including computer programs and any related documentation and
derivative works thereof, to and by the United States Government, are
subject to the Restricted Rights provisions of FAR 52.227.19, paragraph
(c)(2) as applicable, except for purchases by agencies of the Department of
Defense (DOD). If the Software is acquired under the terms of a Department
of Defense or civilian agency contract, the Software is "commercial item"
as that term is defined at 48 C.F. R. 2.101 (Oct. 1995), consisting of
"commercial computer software" and "commercial computer software
documentation" as such terms are used in 48 C.F.R 12.212 of the Federal
Acquisition Regulations and its successors and 48 C.F.R 227.7202-1 through
22.7202-4 (June 1995) of the DOD FAR Supplement and its successors. All
U.S. Government end users acquire the Software with only those rights set
forth in this Agreement. Manufacturer is Avici Systems, Inc., Xxxxx
Xxxxxxxxx, XX 00000. Unpublished - lights reserved under the copyright
laws of United States.
3.13 RESALE. Products purchased under this Agreement may be resold and the
related Software subliccnsed by Customer to its own customers when such
Product is included as part of a sale of a package of Customer's
proprietary products with integrated value-added services such as
installation (provided that any such installation is performed by all
Avici-certified technician), training, consulting, integration, management
and maintenance. Customer is therefore authorized to distribute and
sublicense the Products and Software, to the extent necessary to effect the
transactions described in this Section 3.13, provided that, any agreement
to sublicense is consistent with the rights and obligations set forth
herein and includes terms and conditions no less restrictive than those
contained in this Agreement. Customer agrees that it will not delete or
modify any markings, notices, etc. on Products or Software licensed from
Avici. Customer shall notify Avici of any such sublicense.
3.14 DOCUMENTATION. Avici will supply Customer with one (1) hard copy of the
Documentation for each unit of Product and/or any Software ordered and one
(1) electronic or CD-ROM copy of the Documentation. The foregoing
obligation shall apply to all upgrades and releases purchased or made
available by Avici to Customer after the Effective Date. Customer shall
have the right to copy the Documentation in its entirety, without
alteration (including all copyright notices), and to distribute such copies
internally, solely for use in connection with the operation and maintenance
of the Product. Avici owns and retains copyright in the Documentation.
4.0 TERM AND TERMINATION
Page 10 of 37
4.1 TERM. This Agreement will commence on the Effective Date and remain in
effect until December 31, 2001, unless earlier terminated pursuant to
Sections 4.2, 4.3, 4.4, 4.5 or 15.5. This Agreement shall automatically
renew for consecutive, one-year terms, provided that either party shall
have the light upon sixty (60) days prior written notice to the other to
cancel this Agreement effective at the end of the initial term or any of
the one-year renewals. For purposes of clarity, Customer shall have no
obligation to make any purchase during any renewal period.
4.2 TERMINATION. In addition to Customer's rights to terminate this Agreement
pursuant to Sections 4.3, 4.4, 4.5 and 15.5, either party may terminate
this Agreement in the event of a default by the other, provided that the
non-defaulting party so advises the defaulting party in writing of the
event of alleged default and affords the defaulting party thirty (30) days
within which to cure the default. Default is defined to include:
(a) Either party becomes insolvent, makes a general assignment for the
benefit of creditors, files a voluntary petition in bankruptcy or an
involuntary petition in bankruptcy is filed against such party which is not
dismissed within sixty (60) days after the date such petition is filed, or
suffers or permits the appointment of a receiver for its business, or its
assets become subject to any proceeding under a bankruptcy or insolvency
law, domestic or foreign, or has liquidated its business;
(b) Either party's material breach of any of the terms or conditions
hereof;
(c) The execution by either party of an assignment for the benefit of
creditors or any other transfer or assignment of similar nature.
4.3 FAILURE TO PASS TEST. If the Test Unit fails to successfully perform the
Test within the time period permitted under Subsection 2.3(a), then the
Customer shall have the right to terminate this Agreement upon thirty (30)
days written notice to Avici, Customer's right to terminate pursuant to
this Section 4.3 must be exercised within one-hundred eighty (180) days
from the end of the [CONFIDENTIAL TREATMENT REQUESTED]/*/ period described
in 2.3(a)(iii).
4.4 NETWORK FAILURE. If at any time after meeting its purchase obligation
under Sections 2.1 and 2.2, the Customer's network or any significant span
within such network, fails solely due to the failure of Avici's Product or
Software to perform in accordance with the Specifications, to function
properly for a period of [CONFIDENTIAL TREATMENT REQUESTED]/*/ after
Customer provides notice to Avici as per clause 4.4(a), Customer shall have
the right to terminate this Agreement upon [CONFIDENTIAL TREATMENT
REQUESTED]/*/ written notice to Avici, provided that Avici (or an Avici
certified equipment technician) performed Product installation and that
Customer:
(a) Notifies Avici with as much information (including at a minimum
location) about the cause of the failure as is available at the time, in
writing, within 24 hours of determining that a failure is attributable to
Avici's Product or Software,
(b) Immediately and continuously provides access to Customer facilities
where Avici Product is located, subject to Customer's policies and
procedures regarding access to its
---------------------
/*/ [CONFIDENTIAL TREATMENT REQUESTED] 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 EXCHANGE ACT OF 1933,
AS AMENDED.
Page 11 of 37
facilities which are aimed at protecting Customer's proprietary information
in, and the security of, such facilities,
(c) Makes adequately trained and informed personnel available for
consultation and assistance to Avici engineers, and
(d) Allows Avici to repair or replace Product(s), Software or components of
Product(s)
Customer will not be entitled to terminate under this Section 4.4 if the
alleged failure is due to (i) unauthorized alteration of the Products or
Software, (ii) mishandling, abuse to, or improper storage of the Products
or Software, (iii) installation by other than Avici or an Avici-certified
equipment technician (except as per Section 8.6), (iv) service or
maintenance other than by Avici or Avici-certified equipment technician
(except as per Section 8.6), (v) misuse, including, without limitation, any
use of the Product beyond the environmental parameters set forth in the
applicable Specifications, (vi) damage by fire, explosion, power failure,
power surge or other power irregularity (beyond such parameters which are
set forth in the applicable Specifications), or (vii) any repair or
modifications or attempted repair or modifications of the Product made
other than by Avici or an Avici-certified authorized equipment technician
(except as per Section 8.6).
4.5 "CHRONIC LATE SHIPMENT". If at any time after meeting its purchase
obligation under Sections 2.1 and 2.2, Customer may upon [CONFIDENTIAL
TREATMENT REQUESTED]/*/ written notice to Avici, terminate this Agreement
and any outstanding purchase order, in whole or in part, in the event of
"Chronic Late Shipment" by Avici that is not cured by Avici within
[CONFIDENTIAL TREATMENT REQUESTED]/*/ after notice Of Such problem by
Customer. "Chronic Late Shipment" is defined as Avici's late shipment
during any consecutive [CONFIDENTIAL TREATMENT REQUESTED]/*/ period of
[CONFIDENTIAL TREATMENT REQUESTED]/*/ or more of the Products and/or
Software for which Customer has submitted a purchase order.
4.6 SURVIVAL OF RIGHTS. Neither the termination or expiration of this
Agreement shall relieve either party from any obligations to pay the other
party any amounts accrued under this Agreement prior to such termination or
expiration. Expiration or termination of this Agreement shall not relieve
either party of liability for damages or any other rights or remedies that
either party may have under this Agreement or at law or in equity or
relieve either party from the duty to hold in confidence proprietary
information and otherwise comply with, and exercise the rights set forth
in, Articles or Articles 5.0. 6.0, 7.0, 8.0, 9.0, 10.0, 11.0 13.0 and
Sections 4.6 and 14.1 hereof, each of which will survive termination or
expiration of this Agreement. Customer's obligation to meet the purchase
obligations under Sections 2.1 and 2.2 will survive the expiration of this
Agreement or the termination of this Agreement by Avici for cause pursuant
to Section 4.2. Notwithstanding anything in this Agreement to the
contrary, Customer shall in no event have any obligation to make the
minimum purchase obligations set forth in Sections 2.1 and 2.2 or any
portion thereof in the event of termination by Customer pursuant to either
Sections 4.2 or 4.3. In the event of termination of this Agreement by Avici
pursuant to Section 4.2, Avici's obligations under existing but uncompleted
purchase orders will
---------------------
/*/ [CONFIDENTIAL TREATMENT REQUESTED] 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 EXCHANGE ACT OF 1933,
AS AMENDED.
Page 12 of 37
immediately cease. In the event of expiration of this Agreement or in the
event of termination of this Agreement by Customer pursuant to either
Sections 4.2, 4.3, 4.4, 4.5, or 15.5, Customer, at its option, upon ten
(10) days written notice to Avici, may elect to terminate its obligations
under all or any purchase orders issucd by Customer prior to the effective
date of such expiration of termination by Customer, but not yet fully
performed by Avici as of the date of such expiration or termination by
Customer; provided to the extent the Customer elects not to terminate
Avici's obligations under such existing purchase orders, Avici's
obligations under such purchase orders shall survive such termination or
expiration.
5.0 TRAINING MAINTENANCE AND SUPPORT
Avici agrees to provide Customer training, support and maintenance with
respect to the Product and Software with the terms and conditions upon
which such training, support and maintenance will be provided to be set
forth in a separate "Maintenance, Support and Training Agreement" which
shall be mutually agreed between the parties and executed within thirty
(30) days from the Effective Date. Although a Maintenance, Support and
Training Agreement is to be subsequently negotiated, this Agreement and its
continuing effectiveness is not conditional upon the execution of the
Maintenance, Support and Training Agreement.
6.0 SOFTWARE LICENSE
6.1 GRANT OF LICENSE. Subject to payment of the applicable license fees, if
any, set forth in this Agreement, Avici hereby grants to Customer a
perpetual, nontransferable (except is otherwise provided in this
Agreement), and nonexclusive license (or, with respect to the Third Party
Software, a sublicense) to use the Software and its related Documentation
provided pursuant to the terms of this Agreement. The license (or
sublicense in the case of Third Party Software) grants Customer no right
to, and Customer will not, further sublicense such Software (except to the
extent otherwise provided herein), or modify, decompile, or disassemble
Software furnished to generate corresponding source code. Customer and its
customers will be entitled to modify only the user-selectable features of
the Software. With respect to any Third Party Software, in addition to the
terms and conditions herein, Customer will abide by the applicable terms
and conditions for such Third Party Software. Attachment C lists the Third
Party Software licenses that are applicable as of the Effective Date and
contains the terms of such Third Party Software licenses.
6.2 CONFIDENTIALITY. All Software (whether or not part of firmware) and its
related Documentation furnished by Avici, and all copies thereof made by
Customer, including translations, compilations, and partial copies, are and
will remain the exclusive property of Avici and its licensors. Customer
will hold such Software and related Documentation in strict confidence, and
will not, without Avici' prior written consent, disclose, provide, provide
access to, or otherwise make available, in whole or in part, any Software
or related Documentation to anyone, except to Customer's employees, agents
and subcontractors having a need-to-know for purposes of operating or
maintaining the
Page 13 of 37
related Product, or to its customers to the extent necessary to permit them
to utilize user-selectable features in accordance with the applicable
Documentation. Any disclosures made under this Section 6.2 to agents,
subcontractors or customers of Customer shall be made Subject to
confidentiality agreements between Customer and such subcontractors, agents
or customers. Customer will protect the Documentation from unauthorized use
or disclosure by exercising the same degree of care that it uses with
respect to information of its own of a similar nature, but in no event less
than reasonable care.
6.3 COPIES. Customer will not make any copies of any Software or related
Documentation except as necessary for archival purposes in accordance with
Customer's customary practices. In addition, Customer shall have the right
to keep a copy of the Software on a backup system and use such copy in the
event of an emergency situation without paying any additional license fees.
Customer agrees not to use such copy on the backup system unless an
emergency situation prevents the original licensed Software from being used
by Customer. Customer will reproduce and include any Avici copyright and
proprietary notice on all copies of the Software and its related
Documentation produced by Customer. Customer will take appropriate action,
by instruction, agreement, or, otherwise, with the persons permitted access
to the Software and related Documentation to enable Customer to satisfy its
obligations under this Agreement. When the Software and related
Documentation are no longer needed by Customer, or if Customer's license is
canceled or terminated, Customer will return ill copies of such Software
and related Documentation to Avici or follow written disposition
instructions provided by Avici at that time, if any.
6.4 UPDATES. The fees specified in this Agreement are for only the Software
increase current as of the Effective Date. Other Version Releases and
Incremental Releases in may require additional fees to be paid by Customer
and be subject to additional terms. Releases, if any, will be issued by
Avici in its sole discretion and designated in the following manner:
Version Releases, by a change in the digit(s) to the left of the decimal
point in the Product version number [(x).x.x] and, Incremental Releases, by
a change in the tenths digit [x.(x).x]. During the term of this Agreement,
Avici will provide to Customer any Updates that it makes generally
commercially available at no additional charge. For purposes of this
Agreement, "Updates" means modifications, addition or routines intended to
correct the practical adverse effect of a Software error. Updates will be
designated by a change in the digit(s) to the right of the tenths digit(s)
[x.x.(x)]. The foregoing is based upon Avici's current nomenclature for
identifying modifications and changes to software and should the
nomenclature change the rights of Customer under this Section 6.4 shall be
applied accordingly.
7.0 CONFIDENTIAL INFORMATION
7.1 CONFIDENTIAL INFORMATION. As used herein, "Confidential Information" means
and includes trade secrets and other proprietary or confidential
information, including but not limited to, products, planned products,
services or planned services, the identity of or information concerning,
customers or prospective customers, data, financial information, computer
software, processes, methods, knowledge, inventions, ideas, marketing
promotions, discoveries, current or planned activities, research
development of other
Page 14 of 37
information relating to a party's business activities or operations or
those of its customers or subcontractors, whether or not marked
"confidential". The Confidential Information shall be deemed the property
of the Disclosing Party (as defined below).
7.2 NON-DISCLOSURE. This Agreement creates a confidential relationship between
Customer and Avici and, in the course of negotiating or performing this
Agreement a party may disclose ("Disclosing Party") Confidential
Information to the other party ("Receiving Party"). The Receiving Party
will keep Confidential Information confidential and, except as directed or
authorized in writing, will use Confidential Information only in
conjunction with the provision, use, maintenance or operation of the
Products and/or Service provided under this Agreement and will not disclose
to any person or, entity, directly or indirectly, in whole or in part, any
Confidential Information, or information derived from Confidential
Information. Notwithstanding the foregoing, the Confidential Information
may be disclosed to the officers, directors, employees and affiliates of
the Receiving Party who have a legitimate need to know and solely for the
purpose of the performance of duties hereunder. Upon termination of this
Agreement, the Receiving Party will, at the Disclosing Party's option,
return to the Disclosing Party, or destroy and certify to the Disclosing
Party such destruction, all documents, papers and other materials in its
control that contain or relate to Confidential Information. To the extent
practicable all Confidential Information disclosed to the Receiving Party
will be promptly identified as such by the Disclosing Party in writing.
The Receiving Party will protect the Confidential Information from
unauthorized use or disclosure by exercising the same degree of care that
it uses with respect to information of its own of a similar nature, but in
no event less than reasonable care.
7.3 EXCEPTIONS TO RESTRICTIONS. Notwithstanding anything to the contrary
contained herein, "Confidential Information" will not include any
information Receiving Party can demonstrate: (a) is generally known to the
public on the date of disclosure of same outcomes generally known to the
public after such date through no breach of this Agreement or any other
obligation of confidentiality; (b) was known by the Receiving Party at the
time of disclosure without any obligation to hold it in confidence; (c) is
received by the Receiving Party after the date of disclosure from a third
party without breach of any obligation of confidentiality and without any
obligation of confidentiality binding upon the Receiving Party; (d) is
independently developed by the Receiving Party after the date of disclosure
without use of, or reference to, the Confidential Information of the
disclosing Party; (e) is approved for release by written authorization of
the Disclosing Party, but only to the extent of, and subject to, such
conditions as may be imposed in such written authorization; (f) is required
by law, rule or regulation, including requirements of the applicable
securities exchanges, to be disclosed, but only to the extent and for the
purposes of such required disclosure and subject to Section 7.4, or (g) is
disclosed in response to a valid order of a court or other governmental
body, but only to the extent of and for the purposes of such order and
subject to Section 7.4.
7.4. NOTICE OF REQUIRED DISCLOSURE. If a Receiving Party is or may be required
under 7.3(f) or (g) to disclose any Confidential Information of a
Disclosing Party, the Receiving Party: (a) will provide to the Disclosing
Party immediate notice of the possible
Page 15 of 37
disclosure, and (b) will permit the Disclosing Party, at Disclosing Party's
expense, to take all reasonable actions to eliminate the requirement of
such disclosure, to limit the scope of same and to obtain protective orders
to protect the confidentiality of such Confidential Information, including,
without limitation, filing motions and otherwise making appearances before
a court.
7.5 SURVIVAL OF PROVISIONS. The provisions of this Article 7 will survive any
termination or expiration of this Agreement indefinitely with regard to
information which constitutes a trade secret of the Disclosing Party and
for a period of [CONFIDENTIAL TREATMENT REQUESTED]/*/ with regard to all
other Confidential Information.
8.0 PRODUCT AND SOFTWARE WARRANTIES.
8.1 PRODUCT WARRANTY. Avici hereby warrants that all Product hardware,
Software and documentation media provided under this Agreement shall
conform to the functionality described in the Specifications and the
Documentation in effect as of the date of shipment and shall be free from
defects in material and workmanship for a period of [CONFIDENTIAL TREATMENT
REQUESTED]/*/ following delivery (the "Warranty Period"). Provided,
however, that Software is not warranted to be error free.
8.2. WARRANTY CLAIMS. Customer must notify Avici's Technical Assistance
Center, ("`TAC") of a suspected defect in the Product or Software. After
receiving such notice, TAC will notify Customer of its designation of one
of the two problem resolution methods set out below in 8.2.1 or 8.2.2.
Avici shall incur no liability under this warranty if Customer fails to
provide Avici with notice of the alleged defect during the applicable
Warranty Period.
8.2.1 RETURN TO FACTORY: If TAC selects the "Return to Factory" problem
resolution method, then the allegedly defective hardware, must be
returned to Avici in accordance with Avici's Return to Factory repair
procedures, as follows:
(a) During the Warranty Period. Avici shall, at its cost, ship
repaired items or replacements for defective hardware covered under
warranty within [CONFIDENTIAL TREATMENT REQUESTED]/*/ of receipt
of the hardware.
(b) Return Material Authorization ("RMA") numbers are issued to
utilize returns and ensure proper treatment of the equipment in
shipping, diagnosis, repair and/or replacement. An RMA number may be
obtained by calling the Avici Technical Assistance Center (TAC) at
(000) 000-0000 during normal business hours, or via email to
xxxxxxx@xxxxx.xxx. All returns should be shipped
to:
RMA Depot,
Avici Systeins Inc,,
000 Xxxxxxxxx Xxxxxx,
Xxxxx Xxxxxxxxx, XX 00000
---------------------
/*/ [CONFIDENTIAL TREATMENT REQUESTED] 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 EXCHANGE ACT OF 1933,
AS AMENDED.
Page 16 of 37
The following information should accompany the return equipment:
Detailed information about the defect.
Model and Serial Numbers.
Hosting TSR Bay Model and Serial Number, where applicable. Ship to
address for return repaired/replaced equipment.
Contact name, phone, mobile and fax number and email address.
When the RMA is issued, the TAC representative will provide a
preferred carrier account number and priority shipping instructions.
(c) Hardware which is defective upon arrival at Customer's specified
destination address shall be referred to as a "DOA Part". Within
[CONFIDENTIAL TREATMENT REQUESTED]/*/ of notification by Customer that
it has received a DOA Part, Avici shall ship a replacement to
Customer. Customer, in such event, must return the DOA Part to the
freight carrier for shipment to Avici within [CONFIDENTIAL TREATMENT
REQUESTED]/*/ of receipt of the replacement hardware. If the DOA Part
is not returned within this time period, Avici will xxxx the Customer
for the replacement hardware at list price, [CONFIDENTIAL TREATMENT
REQUESTED]/*/.
8.2.2 OTHER: TAC will return Software to functionality in conformance with
the relevant Specifications and Documentation per the table in
8.3.1. Such efforts shall include analysis, repair, correction or
workaround of the problem by means of telephone support, or, if
appropriate, onsite support, including patches, corrective software
releases or other means reasonably determined by Avici. Software
maintenance releases will be available under this warranty. Software
images and Management Information Bases ("MIB's") will be
downloadable from the Avici web site, or upon request by Customer,
physical media will bc shipped with relevant images, MIBS, release
notes and full user documentation. Such upgrades shall be governed
by the same license terms pursuant to which the original version of
the Software was licensed.
8.3 THE AVICI TAC PROCESS. In addition to the obligations under 8.1 and
8.2, Avici shall make available telephone and email warranty
services support engineers for [CONFIDENTIAL TREATMENT REQUESTED]/*/
calls during normal business hours (8 am to 5 pm Eastern Time).
Support includes answering questions, trouble shooting and
identifying problems, and developing solutions and workarounds.
---------------------
/*/ [CONFIDENTIAL TREATMENT REQUESTED] 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 EXCHANGE ACT OF 1933,
AS AMENDED.
Page 17 of 37
8.3.1 Responses to Customer calls will be based on problem severity. The
following service levels apply according to the severity classification:
Severity Description Escalation Procedure/Response Time
-------------------------------------------------------------------------------------------------
1 Critical - Customer is experiencing a Avici's VP's of Engineering and Customer
network outage that prevents their Service will be [CONFIDENTIAL TREATMENT
customers from accessing service and REQUESTED]/*/ notified. Avici's personnel
for which there is no workaround or will update Customer at least [CONFIDENTIAL
recovery action possible. TREATMENT REQUESTED]/*/ and will work on the
problem until completion.
-------------------------------------------------------------------------------------------------
2 Major - Customer is experiencing a Avici's Level 3 personnel will resolve
problem that affects service but for the problem within [CONFIDENTIAL TREATMENT
which there is a work-around or REQUESTED]/*/ or escalate to Development
recovery action. Business can continue Engineering. Avici's personnel will update
although performance may be degraded. Customer at least every [CONFIDENTIAL TREATMENT
REQUESTED]/*/.
-------------------------------------------------------------------------------------------------
3 Minor - Customer is experiencing Severity 3 problems will be resolved by
problems and requires technical advice Avici within [CONFIDENTIAL TREATMENT
or recommendation for the best REQUESTED]/*/or escalate to Development
solution. Severity 3 problems have a Engineering. Avici will work during normal
reliable workaround and have, at most, business hours to resolve these Severity 3
a slight impact on the operational problems and will contact Customer after
environment. [CONFIDENTIAL TREATMENT REQUESTED]/*/ to report
on progress.
-------------------------------------------------------------------------------------------------
4 Questions Questions received by the TAC will be
logged and answered within [CONFIDENTIAL
TREATMENT REQUESTED]/*/.
-------------------------------------------------------------------------------------------------
8.3.2 At Avici's sole discretion, a technical expert may be dispatched to
the affected site to better understand and resolve the problem. For
Critical Problems dispatch will be within [CONFIDENTIAL TREATMENT
REQUESTED]/*/ of the call, Major Problems within the [CONFIDENTIAL
TREATMENT REQUESTED]/*/.
8.3.3 At Avici's sole discretion, it may escalate the problem for
resolution through Support, Engineering and Sales Management, in
accordance with the following matrix:
ESCALATION TREE
AVICI STAFF/ORGANIZATION CRITICAL MAJOR MINOR
---------------------------------------------------------------------------------------------------
CSE Engineer [CONFIDENTIAL TREATMENT REQUESTED]/*/
---------------------------------------------------------------------------------------------------
CSE Consulting Engineer [CONFIDENTIAL TREATMENT REQUESTED]/*/
---------------------------------------------------------------------------------------------------
Dir. Cust Svc & Dir Continuing Eng. [CONFIDENTIAL TREATMENT REQUESTED]/*/
VP Sales & VP Eng [CONFIDENTIAL TREATMENT REQUESTED]/*/
===================================================================================================
8.4 WARRANTY OF REPAIR OR REPLACEMENT PARTS. Avici warrants that repair or
replacement hardware, and any Software upgrades, provided pursuant to this
Agreement, under normal use and service, will be free from defective
material and faulty workmanship and will perform in accordance with the
functionality described in the Specifications and the Documentation for a
period of [CONFIDENTIAL TREATMENT REQUESTED]/*/ from date of delivery, or
the remainder of the Original Warranty Period, whichever is greater.
---------------------
/*/ [CONFIDENTIAL TREATMENT REQUESTED] 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 EXCHANGE ACT OF 1933,
AS AMENDED.
Page 18 of 37
8.5 WARRANTY OF SERVICES. Avici warrants that all Services performed under this
Agreement shall be performed in a workmanlike manner in accordance with the
standards of the industry. If any Services fail to meet the standard in the
foregoing sentence and Customer notifies Avici of such failure within a
reasonable time of discovery of such failure, but in no event later than
[CONFIDENTIAL TREATMENT REQUESTED]/*/ from the completion of such Services,
Avici shall, at its cost reperform the Services. Any Services which are
reperformed, pursuant to this Section 8.5, shall be warranted for a period
of [CONFIDENTIAL TREATMENT REQUESTED]/*/ from the date of the re-
performance, or the remainder of the original warranty term, whichever is
greater.
8.6 Avici shall incur no liability under this warranty if the alleged defect
arises from (i) mishandling, abuse, improper storage (ii) installation,
service or maintenance other than by Avici or an Avici-certified Customer
service provided; (iii) misuse, including, without limitation, any use of
the Product beyond the environmental parameters set forth in the applicable
Specifications; (iv) damage by fire, explosion, power failure, power surge
or other power irregularity (beyond such parameters which are set forth in
the applicable Specifications), or (v) if any repair or modifications or
attempted repair or modifications of the Product is made other than by
Avici or all Avici-certified Customer service provider. Under the Return to
Factory alternative, if a Product is determined to have a defect due to any
of the causes set out above, Avici's then current repair price as listed in
the price list will apply. Routine insertion or removal of hardware may be
performed by non-Avici certified individuals provided that Such Insertion
or removal is otherwise subject to the terms of this Section 8.6.
8.7 Avici warrants, except as stated in Avici's Documentation or
Specifications, or as otherwise agreed, that no Software provided to
Customer by Avici, shall, as of the date of shipment, (a) contain no hidden
files; (b) not replicate, transmit, or activate itself without control of a
person operating computing equipment on which it resides; (c) not alter,
damage, or erase any data or computer programs without control of a person
operating the computing equipment on which it resides; and (d) contain no
encrypted embedded key unknown to Customer, node lock, timeout or other
function, whether implemented by electronic, mechanical or other means,
which restricts or may restrict use of access to any programs or data
developed under this Agreement, based on residency on a specific hardware
configuration, frequency of duration of use, or other limiting criteria.
8.8 Avici warrants that the Products and Software delivered to Customer are new
(except for repaired or replacement hardware) and are free and clear of all
liens and encumbrances.
8.9 EXCLUSIVE REMEDY. Customer's sole and exclusive remedy for breach of the
foregoing warranties, shall be limited to the express remedies set forth in
this Article 8.
8.10 DISCLAIMER OF WARRANTIES. AVICI MAKES NO OTHER WARRANTIES, EXPRESS,
IMPLIED OR STATUTORY, OTHER THAN AS SET OUT IN THIS AGREEMENT. ALL OTHER
WARRANTIES AS TO THE QUALITY, CONDITION, MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, OR NONINFRINGEMENT ARE EXPRESSLY DISCLAIMED.
---------------------
/*/ [CONFIDENTIAL TREATMENT REQUESTED] 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 EXCHANGE ACT OF 1933,
AS AMENDED.
Page 19 of 37
9.0 INTELLECTUAL PROPERTY CLAIMS
9.1 INDEMNIFICATION. In the event of any claim, action, proceeding or suit by
a third party against Customer alleging an infringement of any patent,
copyright or trademark, or a violation or misappropriation of any trade
secret by reason of the purchase, license or use of any Product or Software
provided by Avici to Customer under this Agreement (other than Third Party
Software unless the claim is based upon Customer's unauthorized use of the
Third Party Software due to Avici not having the authority to Sublicense to
Customer), Avici, at its expense, will defend, indemnify and hold harmless
Customer, subject to the conditions and exceptions stated below from such
claims, actions. proceedings or suits. Avici will reimburse Customer for
any reasonable cost, expense or attorneys' fees, which Customer is required
to incur in cooperating with Avici, at Avici's request, in the defense or
settlement of such action. Avici will indemnify Customer against any
liability assessed against Customer, including, among others, any final
judgment on account of such action, proceeding or suit.
9.2 CUSTOMER ASSISTANCE. Avici's obligation to indemnify Customer pursuant to
this Article 9 is contingent upon (i) Customer giving Avici prompt written
notice of all such claims, actions, proceedings or suits alleging
infringement or violation, (ii) Customer tendering to Avici full and
complete authority to assume the sole defense thereof, including appeals
provided that Customer shall have the right to have counsel, at Customer's
own expense, participate in such defense or appeal, and the sole right to
settle same, provided that Customer has provided its prior written consent
to such settlement, which consent shall not be unreasonably withheld, and
(iii) Customer furnishing to Avici all relevant information available to
Customer and cooperating with and assisting Avici in every reasonable way
to facilitate the defense and/or settlement of any such claim, action,
proceeding or suit.
9.3 NONINFRINGING USE. If Customer's use of the Product or Software is
enjoined or in Avici's opinion is likely to be enjoined, Avici will, at its
expense and at its option, either (1) replace the enjoined Product or
Software furnished pursuant to this Agreement with it suitable substitute
free of any infringement, provided such substitute has comparible
functionality and performance characteristics to the infringing items; (2)
modify it so that it will be free of the infringement, provided such
modification does not result in a material degradation in performance or
functionality; or (3) procure for Customer a license or other right to use
the infringing item. If none of the foregoing options are available to
Avici on a commercially reasonable basis, Avici will remove, or accept the
return of, the enjoined Product or Software, and refund to Customer any
amounts paid to Avici therefore.
9.4 AVICI RIGHT IN PROPERTY. Except as expressly set forth in this Agreement,
Avici grants no rights, title or interest in its intellectual property in
the Products, Software or Documentation to Customer.
10.0 LIMITATION OF LIABILITY
Page 20 of 37
Except for Avici's obligations under Articles 9.0 and 11.0, and to the
extent not prohibited by applicable law:
A. Avici's liability to Customer under this Agreement will not exceed in
the aggregate the total of all amounts paid to Avici by Customer under
this Agreement provided that the foregoing limit shall be in addition
to any amounts paid or expended by Avici in satisfying its obligations
under Article 8.
B. Neither party shall be liable to the other for any indirect, punitive,
special, incidental or consequential damage in connection with, or
arising out of, this Agreement (including loss of business, revenue,
profits, use, data or other economic advantage) however it arises,
whether based on breach of contract or tort even if that party his
been advised of the possibility of such damage.
11.0 INDEMNIFICATION
11.1 AVICI INDEMNIFICATION. Avici will be responsible for and agrees to
indemnify and hold harmless Customer from and against all losses,
liabilities, demands, claims, actions, proceedings, suits and damages
(including reasonable legal fees) for bodily injury, including death, to
persons or damage to tangible property to the extent it results directly
from tile willful misconduct or negligent acts of omissions, or strict
liability, of Avici, its officers, agents, employees, or contractors.
11.2 CUSTOMER INDEMNIFICATION. Customer will be responsible for and agrees to
indemnify and hold harmless Avici from and against all losses, liabilities,
demands, claims, actions, proceedings, suits and damages (including
reasonable legal fees) for bodily injury, including death, to persons or
damage to tangible property to the extent it results directly from the
willful misconduct or negligent acts or omissions, or strict liability, of
Customer, its officers, agents, employees or contractors.
11.3 OBLIGATIONS OF INDEMNIFIED PARTY. With respect to each of Sections 11.1
and 11.2 above, the indemnified party will give the indemnifying party
prompt written notice of all such claims, actions, proceedings or suits.
The indemnified party will, upon the indemnifying party's request and at
the indemnifying party's expense, furnish all relevant information
available to the indemnifying party and cooperate and assist the
indemnifying party in every reasonable way to facilitate the defense and/or
settlement of any such claim, action, proceeding or suit.
12.0 INSURANCE
12.1 COVERAGE. Avici will carry or cause to be carried and maintained in force
throughout the entire term of this contract insurance coverage's as
described in paragraphs (A) through (D) below with insurance companies
acceptable to Customer. Avici will also require all subcontractors to
maintain in force at all times during any subcontractor's performance of
the Work the insurance coverage's set forth below. The limits set forth
below are minimum limits and will not be construed to limit Avici's
liability. All costs and deductible amounts will be for the sole account
of Avici.
Page 21 of 37
(a) Worker's Compensation insurance complying with the laws of the State or
States having jurisdiction over each employee, whether or not Avici is
required by such laws to maintain such insurance, and Employer's Liability
with limits of [CONFIDENTIAL TREATMENT REQUESTED]/*/. If work is to be
performed in Nevada, North Dakota, Ohio, Washington, Wyoming or West
Virginia, Avici will participate in the appropriate state fund(s) to cover
all eligible employees and provide a stop gap endorsement.
(b) Commercial or Comprehensive General Liability insurance on an
occurrence form with a combined single limit of [CONFIDENTIAL TREATMENT
REQUESTED]/*/.
(c) Automobile Liability insurance with a combined single limit of
[CONFIDENTIAL TREATMENT REQUESTED]/*/.
(d) Excess or Umbrella Liability insurance with a combined single limit of
[CONFIDENTIAL TREATMENT REQUESTED]/*/.
12.2 WAIVERS. In each of the above described policies, Avici agrees to waive
and will require its insurers to waive any right of subrogation or recovery
they may have against Customer, its parent, subsidiary, or affiliated
companies.
12.3 ADDITIONAL INSUREDS. Under the policies described in (B), (C) and (D)
above, Customer, its parent, subsidiary and affiliated companies will be
named as additional insureds as respects Avici's operations and as respects
any work performed under this contract. Any costs associated with naming
these additional insureds is included in the contract cost.
12.4 OTHER INSURANCE. The policies described in (B), (C) and (D) above will
include the following "other insurance" amendment, "This insurance is
primary insurance with respect to Customer, its parent, Subsidiary and
affiliated companies, and any other insurance maintained by Customer, its
parent, subsidiary or affiliated companies is excess and not contributory
with this insurance."
12.5 NOTICE OF CANCELLATION. Non-renewal or cancellation of policies described
above will be effective only after written notices received by Customer
from the insurance company [CONFIDENTIAL TREATMENT REQUESTED]/*/ in advance
of any such non-renewal or cancellation. Prior to commencing the work
hereunder, Contractor will deliver to Customer certificates of insurance on
an Accord 25 or 25S form evidencing the existence of the insurance coverage
required above.
---------------------
/*/ [CONFIDENTIAL TREATMENT REQUESTED] 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 EXCHANGE ACT OF 1933,
AS AMENDED.
Page 22 of 37
12.6 POLICY COPY. In the event of a loss of claim arising out of or in
connection with this contract, Contractor agrees, upon request of Customer,
to submit the original or a certified copy of its insurance policies for
inspection by Customer.
12.7 LIMITATIONS. Customer will not insure nor be responsible for any loss or
damage, regardless of cause, to property of any kind, including loss of use
thereof, owned, leased or borrowed by Avici, or their employees, servants
or agents.
13.0 REPRESENTATIONS AND WARRANTIES
13.1 MARKETABLE TITLE. Avici warrants that it has good marketable title to the
Products and that it has the full power and authority to grant the license
(or sublicense, as applicable) granted Customer under or in connection with
this Agreement with respect to the Software and that the license to, and
use by, Customer of the Products and Software, as permitted under this
Agreement, will not (or in the case of Third Party Software, to Avici's
knowledge, will not) constitute art infringement or other violation of any
copyright, patent, trade secret, trademark, non-disclosure, or any other
intellectual property right of any third party.
13.2 GOOD STANDING. Each party represents and warrants that it is duly
organized, existing, and in good standing under the laws of its State of
organization, and is duly qualified as a foreign corporation and in good
standing in all jurisdictions in which the failure to so qualify would have
a materially adverse impact upon its business and assets.
13.3 AUTHORITY. Each party represents and warrants that it has the corporate
power and requisite authority to execute, deliver and perform this
Agreement, any Escrow Agreement, any Maintenance, Support and Training
Agreement entered into pursuant to this Agreement, and all purchase orders
to be executed pursuant to or in connection with this Agreement, and that
it is duly authorized to, and has taken all corporate action necessary to
authorize, the execution, delivery and performance of this Agreement and
such other agreements and documents.
13.4 NON-CONFLICT. Upon the Effective Date, each party represents and warrants
that neither execution and delivery of this Agreement and the agreements or
documents stated in Section 13.3 above executed by it pursuant to or in
connection with this Agreement, nor the consummation of any of the
transactions herein or therein contemplated, nor compliance by it with the
terms and provisions hereof or with the terms and provisions thereof will
(i) contravene or materially conflict with any provision of applicable law
to which it is subject or any judgment, license, order or permit applicable
to it, or any indenture mortgage, deed of trust, or other agreement or
instrument to which it is a party or by which it or its property may be
bound, or to which it or its property may be subject, (ii) violate any
provision of its articles of incorporation or bylaws or (iii) require the
consent or approval of, the giving of notice to, or the registration,
recording or filing of any document with, or the taking of any other action
in respect of, any person, entity or governmental agency.
Page 23 of 37
13.5 BINDING OBLIGATIONS. Upon the Effective Date, each party represents and
warrants that this Agreement and the agreements or documents stated in
Section 13.3 above executed by it pursuant to or in connection with this
Agreement will constitute when executed in full, the legal, valid and
binding obligations of said party, enforceable in accordance with their
respective terms, subject to applicable bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium or similar laws affecting
the enforcement of creditors rights generally and to general principles of
equity.
14.0 ADDITIONAL TERMS
14.1 PUBLICITY. Neither party shall publish or use any advertising, sales
promotions, or other publicity materials that use the other party's logo,
trademarks, or service marks without the prior written approval of the
other party. Each party shall have the right to review and approve any
publicity material, press releases, or other public statements by the other
that refer to such party or that describe any aspect of this Agreement. In
addition to their obligations under Article 7 of this Agreement, without
the prior written approval of the other party, each party agrees not to
issue any such publicity materials, press releases, public statements which
contain information not previously publicly disclosed by mutual agreement
of the parties, except as is required to comply with federal or state laws.
Nothing in this Agreement establishes a lease, license or right for either
party to use any of the other party's brands, marks, or logos without prior
written approval of the other party. Subject to the terms of Article 7,
Customer and Avici agree to appropriate disclosure of their relationship in
Avici's S-1 registration.
14.2 JOINT MARKETING. Avici and Customer will each contribute an amount not to
exceed [CONFIDENTIAL TREATMENT REQUESTED]/*/ of the total net price of
Customer's purchases of Products under this Agreement for joint marketing
activities. All such joint marketing activities will be subject to mutual
agreement in writing, and each party will present the other with proposals
for such joint marketing activities (including cost estimates) prior to
making any commitments to third parties. Upon approval by a party of the
other's joint marketing proposal, the originating party shall invoice the
other party for its share of the expenses of such proposal [CONFIDENTIAL
TREATMENT REQUESTED]/*/. Notwithstanding the foregoing, neither party will
make a public announcement or issue joint marketing material; or press
release concerning such matter without having made available to the other
party for review and comment the proposed text of such announcement, press
release or material, with approval not to be unreasonably withheld or
delayed. Any proposed announcement shall be subject to the terms of Section
14.1.
14.3 INITIAL PRESS ANNOUNCEMENT. Subject to the terms of Section 14.1,
Customer and Avici agree to make a public announcement of their
relationship no later than May 26, 2000, The language of such announcement
shall be mutually agreed upon by the parties. It is the intention of both
parties to announce only the relevant elements of this Agreement and to
focus on the unique capabilities of Avici's Terabit Switch Router in
support of Customer's network.
---------------------
/*/ [CONFIDENTIAL TREATMENT REQUESTED] 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 EXCHANGE ACT OF 1933,
AS AMENDED.
Page 24 of 37
14.4 FIELD TEST. In lieu of carrying out the activities described in the
provision titled "Supercomm 2000 Announcement" of that certain "Procurement
Agreement Term Sheet" signed between the parties and dated April 10, 2000
("Procurement Agreement Term Sheet"), the parties shall, by no later than
July 31, 2000, mutually agree upon a field trial test plan ("Field Trial
Test Plan") with the Field Trial Test Plan to be carried out by no later
than November 30, 2000.
15.0 GENERAL TERMS
15.1 RELATIONSHIP OF THE PARTIES. This Agreement is not intended to establish
a partnership, franchise, joint venture or agency relationship between the
parties. Neither party may act in a manner that expresses or implies a
relationship other than that of independent contractor or binds the other
party.
15.2 WAIVER OR DELAY. Neither a party's express waiver nor its failure to
promptly exercise any right under this Agreement will create a continuing
waiver or expectation of non-enforcement of any tight under this Agreement.
15.3 GOVERNING LAW. This Agreement will be construed in accordance with and
governed by the law of the State of New York without regard to the conflict
of law provisions of such state or any other jurisdiction.
15.4 NOTICES. All written notices required by this Agreement must be delivered
in person or by means evidenced by certified mail or express delivery to
the addresses identified below for each party and will be effective upon
receipt:
Customer: Xxxxxxxx Communications, Inc.
Attn: Contract Administration
Xxx Xxxxxxxx Xxxxxx,
Xxxxx, Xxxxxxxx 00000
with a copy to: Xxxxxxxx Communications, Inc.
Attn: General Counsel
Xxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxxx, 00000
with a copy to: Xxxxxxxx Communications, Inc
ATTN: Vice President of Network Planning
Xxx Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Avici: Avici Systems, Inc.
000 Xxxxxxxxx Xxxxxx
X. Xxxxxxxxx, Xxxxxxxxxxxxx 00000-0000
15.5 FORCE MAJEURE. Neither Avici nor Customer will be liable to the other for
any delay in performing in accordance with this Agreement, other than the
payment of amounts due
Page 25 of 37
hereunder, if such delay arises out of an Act of God including fire, flood,
earthquake, explosion, casualty, or accident, or out of war, riot civil
commotion, or the requirement of any governmental agency or
instrumentality. The party asserting that an event of force majeure has
occurred will send the other party prompt notice thereof setting forth a
description of the event of force majeure, an estimate of its effect upon
the party's ability to perform its obligations under this Agreement and the
duration or expected duration thereof. In addition, if, at any time after
Customer has satisfied its purchasing obligation under Sections 2.1 and
2.2, an event of force majeure endures for a period of ninety (90) days
where Avici is the party whose performance is prevented or delayed by an
event of force majeure, Customer shall have the right to terminate this
Agreement upon thirty days' written notice to Avici. Avici shall have no
right to terminate this Agreement in the event either its or Customer's
performance hereunder is delayed or prevented by an event of force majeure
regardless of how long the event of force majeure exists,
15.6 ASSIGNMENT. This Agreement may not be assigned by either party, by
operation of law or otherwise, without the express prior written consent of
the other party (which consent will not be unreasonably withheld), except
that no such consent will be required in connection with (a) any merger,
consolidation, or the transfer of all or substantially all of such party's
assets or (b) an assignment by a party to any of its Affiliates. This
Agreement will be binding upon, and inure to the benefit of, the permitted
successors and assigns of each party. Any purported assignment in
violation of this Section 15.6 will be null and void. Notwithstanding
anything in this Agreement to the contrary, Customer may assign some or all
of its rights and obligations hereunder to State Street Bank and Trust
Company of Connecticut, National Association, in connection with a
financing by Customer of construction of its fiber optic network; in
addition, Street Bank and Trust Company of Connecticut, National
Association, may further assign this Agreement as collateral for such
financing; provided that if Customer makes an assignment to State Street
Bank and Trust Company of Connecticut, National Association, pursuant to
this paragraph, Customer (or its assignee pursuant to an assignment made
under the other provisions of this Agreement) shall guarantee performance
of the assignee's obligations.
15.7 LEGAL EXPENSES. The prevailing party in any legal action arising out of
this Agreement will be entitled to recover court costs and reasonable
attorneys' fees.
15.8 SEVERABILITY. If any provision of this Agreement is held invalid by any
law or regulation of any government or by any court or arbitrator, that
invalidity will not affect the enforceability of any other provision.
15.9 ENTIRE AGREEMENT. This Agreement, together with the Attachments,
constitutes the parties' entire agreement relating to its subject matter.
This Agreement supercedes all prior or contemporaneous oral or written
Communications, proposals, conditions, representations and warranties,
including, among others, the "Procurement Agreement Term Sheet", and shall
prevail over any conflicting or additional terms of any quote, order,
acknowledgement, or other communication between the parties relating to its
subject matter during the term of this Agreement. No modification to this
Agreement will be binding, unless in writing and signed by an authorized
representative of each party
Page 26 of 37
15.10 CONFLICT OF INTEREST. Avici will not use any funds received under this
Agreement for illegal or "improper" purposes related to the Agreement.
Avici will not pay any commissions, fees or rebates to any employee of
Customer, nor favor any employee of Customer with gifts of entertainment of
significant cost or value. If Customer has reasonable cause to believe
that one of these provisions has been violated, Customer or its
representative may audit the records of Avici for the purpose of
establishing compliance with such provisions. For purposes of this
Section, Customer shall include all affiliated companies of Customer.
15.11 ESCROW AGREEMENT. The parties shall within [CONFIDENTIAL TREATMENT
REQUESTED]/*/from the Effective Date, mutually agree to the terms of an
escrow agreement which shall provide for the deposit, by no later than
December 31, 2000, of the source code (and other relevant materials) with
respect to the Product and Software with an independent, recognized escrow
agent. Such escrow agreement shall provide Customer the right to obtain and
use such source code and other materials deposited under certain
conditions. As long as this Agreement has not terminated or expired,
[CONFIDENTIAL TREATMENT REQUESTED]/*/. Avici agrees to provide regular
reports to Customer regarding Avici's efforts to prepare a final written
version of the source code suitable for deposit.
15.12 COUNTERPARTS; FACSIMILE COPY. This Agreement may be executed in separate
counterparts, each of which so executed and delivered shall constitute an
original, but all such counterparts shall together constitute one and the
same instrument. The parties stipulate that facsimile copies of the signed
Agreement will be admissible in evidence for all purposes in any proceeding
as between the parties.
15.13 REMEDIES. Subject to the provisions regarding exclusive remedy in
Sections 3.4, 3.5 and 8.9 the remedies available to either party under this
Agreement are cumulative. The exercise of any one remedy will not be
deemed an election of such remedy to the exclusion of other remedies; and
the rights and remedies of the parties as set forth in this Agreement are
not exclusive and are in addition to any other rights and remedies
available to it at law or in equity.
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/*/ [CONFIDENTIAL TREATMENT REQUESTED] 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 EXCHANGE ACT OF 1933,
AS AMENDED.
Page 27 of 37
In witness whereof, the parties have caused this Agreement to be executed
by their respective authorized representatives as of the Effective Date,
AVICI SYSTEMS, INC. XXXXXXXX COMMUNICATIONS, INC.
By: /s/ Xxxxx XxXxxxxxx By: /s/ Xxxxxx Xxxxxx
---------------------------- ----------------------------
Name: Xxxxx XxXxxxxxx Name: Xxxxxx Xxxxxx
-------------------------- --------------------------
Title: Vice President, Sales Title: President & CEO
------------------------- -------------------------
Date: May 17, 2000 Date: May 17, 2000
-------------------------- --------------------------
Page 28 of 37
ATTACHMENT A
AVICI SYSTEMS, INC.
PRICE LIST
PRODUCT PART NO. DESCRIPTION LIST PRICE
--------------------------------------------------------------------------------------------------
[CONFIDENTIAL TREATMENT REQUESTED]/*/
---------------------
/*/ [CONFIDENTIAL TREATMENT REQUESTED] 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 EXCHANGE ACT OF 1933,
AS AMENDED.
Page 29 of 37
[CONFIDENTIAL TREATMENT REQUESTED]/*/
All Prices FOB Xxxxx Xxxxxxxxx XX 00000
---------------------
/*/ [CONFIDENTIAL TREATMENT REQUESTED] 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 EXCHANGE ACT OF 1933,
AS AMENDED.
Page 30 of 37
ATTACHMENT B
TSR Product Specifications
[CONFIDENTIAL TREATMENT REQUESTED]/*/
---------------------
/*/ [CONFIDENTIAL TREATMENT REQUESTED] 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 EXCHANGE ACT OF 1933,
AS AMENDED.
Page 31 of 37
[CONFIDENTIAL TREATMENT REQUESTED]/*/
---------------------
/*/ [CONFIDENTIAL TREATMENT REQUESTED] 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 EXCHANGE ACT OF 1933,
AS AMENDED.
Page 32 of 37
[CONFIDENTIAL TREATMENT REQUESTED]/*/
---------------------
/*/ [CONFIDENTIAL TREATMENT REQUESTED] 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 EXCHANGE ACT OF 1933,
AS AMENDED.
Page 33 of 37
[CONFIDENTIAL TREATMENT REQUESTED]/*/
---------------------
/*/ [CONFIDENTIAL TREATMENT REQUESTED] 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 EXCHANGE ACT OF 1933,
AS AMENDED.
Page 34 of 37
[CONFIDENTIAL TREATMENT REQUESTED]/*/
---------------------
/*/ [CONFIDENTIAL TREATMENT REQUESTED] 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 EXCHANGE ACT OF 1933,
AS AMENDED.
Page 35 of 37
ATTACHMENT B1
Market Leadership -- Additional Features and Capabilities
Avici acknowledges Customer's desire to have market-leading technology. In
connection therewith, Avici agrees to meet the performance specifications
described below by the milestone dates indicated.
[CONFIDENTIAL TREATMENT REQUESTED]/*/
---------------------
/*/ [CONFIDENTIAL TREATMENT REQUESTED] 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 EXCHANGE ACT OF 1933,
AS AMENDED.
Page 36 of 37
ATTACHMENT C
Third Party Software
[CONFIDENTIAL TREATMENT REQUESTED]/*/
---------------------
/*/ [CONFIDENTIAL TREATMENT REQUESTED] 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 EXCHANGE ACT OF 1933,
AS AMENDED.
Page 37 of 37
