EX-10.11 2 dex1011.htm MASTER ACQUISITION AGREEMENT MASTER ACQUISITION AGREEMENT
EXHIBIT 10.11
This Master Acquisition Agreement (the “Agreement”) is entered into this 5th day of April, 2005, by and between BTE Equipment, LLC, a Delaware limited liability company (“BTE”), with a place of business at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and Infinera Corporation, a Delaware corporation (“Vendor”), with a place of business at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
ARTICLE 1
ARTICLE 2 – PRODUCT ACQUISITION
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requirements set forth in Article 8, Procurement.
[**] The parties acknowledge and agree that any purchase of Product by BTE under this Agreement is not at any time coupled with or conditioned upon Vendor’s delivery of any future development, and that there is no intention to require Vendor to provide future developments under this Agreement. BTE acknowledges and agrees that, with regard to any Product purchased under the Agreement, the lack of a future development does not adversely affect BTE’s ability to benefit from the Product in a manner consistent with its intended use. [**] Further, BTE is not obligated to test or purchase any such future developments. Except as set forth on Exhibit 2.4, Vendor shall develop all Feature Enhancements so as to maintain compatibility with the existing Product operating platform and without requirement for any additional hardware for implementation.
2.7 Discontinuation of Manufacturing. Vendor agrees to provide BTE written notice [**] prior to a discontinuation of the manufacturing of any Product purchased hereunder. Vendor shall continue to provide Product and all component parts thereof, for all Procurement Documents submitted by BTE during the one year period following Vendor’s notice of discontinuation of manufacturing. If Vendor fails or is unable to supply Product and the component parts thereof in accordance with the terms of this Section 2.7, or as otherwise
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provided for in this Agreement, Vendor shall supply to BTE current production Product that, in BTE’s reasonable discretion, meets or exceeds the requirements in the Documentation [**].
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reverse engineer, the Licensed Software or any component thereof, except as required to obtain interoperability with other software or as may be permitted by applicable law and except as may be necessary to debug, repair or improve the performance of the Licensed Software following a Default.
ARTICLE 4 — PROFESSIONAL SERVICES
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4.9.1 Type I Materials. [**].
4.9.2 Type II Materials. [**].
4.9.3 Type III Materials. [**].
4.9.4 Type IV Materials. [**].
4.9.4 Type V Materials. [**].
4.9.5 Type VI Materials. [**].
In the event the Material type is not designated in the Statement of Work, the following designations shall apply: (a) If development of the Materials is funded primarily by BTE and does not constitute a derivative work from pre-existing Vendor products or materials, the Materials shall be designated [**]; (b) if the development of the Materials is not funded primarily by BTE or constitutes a derivative work from pre-existing Vendor or third party products or materials, the Materials shall be designated [**]; (c) if the development of the Materials is funded primarily by BTE and constitutes a derivative work from pre-existing BTE products or materials, the Materials shall be designated as [**].
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relating to Vendor’s ability to perform its obligations under this Agreement in the manner and within the time specified in this Agreement. BTE shall have the right to inspect the work at all stages and at all times and Vendor shall accommodate BTE by providing full and complete access to its facilities and personnel.
BTE for the actions or omissions of its subcontractors under the terms and conditions specified in this Agreement. All subcontractors and their representatives, agents and employees must sign a Non-Disclosure Agreement containing terms substantially similar to those set forth in the Non-Disclosure Agreement between the parties as a condition of becoming an authorized subcontractor.
4.15 | Right to Access; Identification Credentials; Facility Rules. |
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ARTICLE 5 — MAINTENANCE AND SUPPORT SERVICES
5.1 General Maintenance and Support. Upon payment of the required fees or in accordance with this Agreement, Vendor shall provide BTE all maintenance and support Services (“Maintenance and Support Services”) necessary to:
5.1.1 Ensure that the Documentation is updated with the applicable Products;
5.1.2 Ensure that the Products remain in conformity with the applicable Documentation;
5.1.3 Assist BTE in diagnosing and remedying any errors, defects and problems with the Products in conjunction with the operation of BTE’s System; and
5.1.4 Ensure that BTE receives all new features (as applicable based upon BTE’s purchase of Software Subscription Service) and Maintenance Releases, relating to the Software.
Maintenance and Support Services for all Products shall comply with the terms and conditions of this Agreement and Exhibit 5.1, Maintenance and Support.
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5.4 [**]
5.5 Spares. Vendor shall comply with the sparing requirements in accordance with the formula set forth in Exhibit 5.5, Sparing Requirements, and as set forth in a relevant Procurement Document.
5.6 Lab Equipment. Vendor shall provide lab Equipment to BTE in accordance with the terms of Exhibit 5.6. [**].
ARTICLE 6 — TESTING AND ACCEPTANCE
6.1.2 Other Product. Acceptance of Product that is not First Order Product shall occur as follows:
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6.2.1 Testing Criteria. Specific standards, conditions and test criteria for First Order Products which the parties mutually determine will, if achieved, satisfactorily indicate that the First Order Products will, or are likely to meet or exceed each of the specifications under all specified operating conditions, including as applicable the interoperability standards set forth on Exhibit 6.1, Interoperability Standards (“Testing Criteria”);
6.2.2 Testing Procedures. Comprehensive and detailed testing methods, procedures, simulated loads and operating conditions and schedules for comprehensive integration and testing of all mechanical and electrical systems and components of the Equipment, and all modules of the Software, formulated to verify achievement of all Testing Criteria (the “Testing Procedures”). The Testing Procedures for Equipment shall include manufactures’ suggested systems integration and testing procedures and the Testing Procedures for Software shall be sufficient to test the functionality of the Software in accordance with the Documentation in BTE’s System, and using BTE’s data.
6.3 | Testing. The parties may agree to an acceptance procedure in the Acceptance Test Plan, which procedure shall be followed in lieu of the procedures set forth in Section 6.4. |
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applicable First Order Products shall be deemed Accepted. BTE’s acceptance of the results of the Acceptance Test Plan shall not in any manner waive, alter or diminish the obligations of Vendor to satisfy the Documentation or Vendor’s warranties hereunder. All testing and re-testing conducted by Vendor shall be at Vendor’s sole expense. |
Vendor shall submit all invoices to the following address:
BTE Equipment, LLC
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ATTN: Accounts Payable
Email: ▇▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
or to such other address as may be specified by BTE upon written notice to Vendor. Each invoice must reference the applicable purchase order number or credit card account number, as applicable.
7.3 | [**] |
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and assess the availability and reliability of the Products in order to achieve reliability and availability standards set forth in this Agreement, it being agreed that the parties shall develop and regularly update reliability and availability standards (“Reliability/Availability Standards”) applicable to the Products following commercial release of such Products; (b) monitor and assess other performance criteria of the Products as referenced in the Documentation; and (c) to transfer know-how as reasonably requested by BTE for Product use and maintenance.
7.5.3 [**]
8.2 Cancellation of Procurement Document. Except as otherwise mutually agreed to and specified in a
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[**] – Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.
Procurement Document, BTE may cancel a Procurement Document for Product(s), or any part thereof, without penalty provided that BTE provides Vendor with written notice of such cancellation, and such written notice is received by Vendor prior to either (i) the Delivery Date for Products set forth in Section 8.5.1, or (ii) the lead times for Products set forth in Sections 8.5.2 and 8.5.3. BTE may, upon written notice to Vendor, which notice is received by Vendor at least two (2) weeks prior to the Delivery Date or actual shipment date, whichever is earlier, postpone the Delivery Date of some or all of the Product(s) for up to eight (8) weeks, without penalty. BTE may, upon written notice to Vendor, which notice is received by Vendor prior to the Delivery Date or actual shipment date, whichever is earlier, change the destination to which some or all of the Products are to be delivered without penalty. BTE shall specify the revised Delivery Date, and as applicable, Installation Date, in the written notice to Vendor.
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Overbuild Products | Delivery Interval: | |
Up to [**] DTNs and/or [**] OTNs | [**] weeks (whether or not forecasted) | |
[**] DTNs and/or [**] OTNs [**] | weeks (whether or not forecasted) | |
Greater quantity | [**] weeks (whether or not forecasted) |
Vendor agrees to use all reasonable commercial efforts to complete the ▇▇▇ certification process and return to BTE the ▇▇▇ samples provided within [**] days of receipt of the Certification Materials. The following circumstances may prevent Vendor from completing the certification within such [**] day period: (i) incompatibility of the requested ▇▇▇ module with the Vendor system specifications, (ii) inability to obtain adequate quantities of the requested ▇▇▇ module for certification or (iii) lack of cooperation from the 3rd party vendor. Upon completion of the certification, BTE shall be able to use the certified ▇▇▇ software feature as part of the then current software release.
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[**] – Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.
The parties acknowledge and agree that any 3rd party ▇▇▇ shall not be covered under any Vendor warranty or return program.
ARTICLE 9— DEFAULT AND REMEDIES
(a) Vendor’s failure to maintain insurance coverage required by Section 12.2;
(b) Failure of a party to timely observe or perform any material covenant, agreement, obligation, term or condition required to be observed or performed under this Agreement or an applicable Statement of Work which is not cured within the time frames, if any, set forth in this Agreement or within thirty (30) days of notice of said breach if no specific time to cure is specified; provided, however, that neither party shall be determined to be in breach for any failure that results from delays caused by the other party or its agents.
(c) The institution of bankruptcy, receivership, insolvency, reorganization or other similar proceedings by or against a party under any section or chapter of the United States Bankruptcy Code, as amended, or under any similar laws or statutes of the United Status or any state thereof, if such proceedings have not been dismissed or discharged within 30 days after they are instituted; the insolvency or making of any assignment for the benefit of creditors or the admittance by a party of any involuntary debts as they mature; the institution of any reorganization arrangement or other readjustment of debt plan of a party not involving the United States Bankruptcy Code.
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Materials or Products related thereto to Vendor and receive a refund of the amount paid under the Statement of Work; and (d) reject any Products that have not been Accepted by BTE and that relate to such Default and receive a full refund of fees paid for such Products and all expenses associated with such rejection; provided, however, that if BTE elects to reject such non-Accepted Product it must return such non-Accepted Product to Vendor.
ARTICLE 10 — INDEMNITY AND LIABILITY
own counsel and to compromise or settle any suits so far as this may be done without prejudice to the right of BTE to continue the use of the alleged infringing system, method, apparatus, proprietary information, work or ▇▇▇▇; and (iii) BTE cooperating fully with Vendor to facilitate defense or settlement of such Claim. In any such suit, if the use of the alleged infringing intellectual property is held to constitute an infringement and is enjoined, or if in light of any Claim Vendor deems it advisable to do so and can do so without, in BTE’s reasonable opinion, impairing or adversely affecting the Equipment or BTE’s use thereof, Vendor may at Vendor’s sole option and expense: (i) procure the right to continue the use of the same for BTE; or (ii) replace or modify the same to be free of the infringement claim. Any settlement of any such Claim that imposes any liability or limitation on BTE shall not be entered into without the prior written consent of BTE. Should BTE enter into settlement of any such Claim without Vendor as a signatory to the settlement and Vendor is not in breach of its obligations, BTE waives any claims that it may have to Vendor for contribution to the settlement and/or defense costs.
Notwithstanding the foregoing, Vendor shall have no obligation to defend or settle any Claim for any infringement or other violation of any intellectual property right: (i) arising solely from compliance with BTE’s custom specifications or designs, (ii) relating solely to use of any Equipment furnished hereunder in combination with another product not furnished by Vendor, unless such combination is the Equipment’s necessary or inherent use or a specific use for which the Equipment is sold by Vendor to BTE, or (iii) relating solely to a Claim based on intellectual property rights owned by BTE or any of its affiliates. This Section 10.1 states Buyer’s sole and exclusive remedy in the event that Equipment infringes on the intellectual property right of any third party.
In the event the award or settlement of a Claim is based partially on an indemnified Claim described above and partially on a non-indemnified Claim, any payments and reasonable attorney fees incurred in connection with such Claims are to be apportioned between the Parties in accordance with the degree of cause attributable to each Party; however, nothing in the foregoing shall reduce or limit Vendor’s duty to defend BTE against alleged infringement Claims.
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10.4 | Limitation of Liability. |
ARTICLE 11 — REPRESENTATIONS AND WARRANTIES
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ARTICLE 12 — GENERAL TERMS AND CONDITIONS
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unsuccessful, or if fifteen (15) calendar days have passed since the parties submitted the dispute to the senior executive officers, the parties may jointly agree to submit the matter to mediation upon mutually agreeable terms. Such mediation shall be concluded no later than thirty (30) days following agreement to mediate the dispute. The parties agree to continue performance of their respective obligations under this Agreement, to the extent possible, during the performance of the Dispute Procedures.
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If to BTE: | BTE Equipment, LLC | |
Attn: Director of Procurement | ||
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In case of dispute, | ||
with a copy to: | Attn: General Counsel | |
If to Vendor: | Infinera Corporation | |
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▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ |
With a copy to: |
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, VP & General Counsel |
Any party may, from time to time, by notice in writing served upon the other party as aforesaid, designate an additional and/or a different mailing address or an additional and/or a different person to whom all such notices, requests, demands, reports and communications are thereafter to be addressed. Any notice, request, demand, report or other communication served personally shall be deemed delivered upon receipt, if served by mail or independent courier shall be deemed delivered on the date of receipt as shown by the addressee’s registry or certification receipt or on the date receipt at the appropriate address is refused, as shown on the records or manifest of the relevant postal service or independent courier, and if served by facsimile transmission shall be deemed delivered on the date of receipt as shown on the received facsimile (provided the original is thereafter delivered as aforesaid).
12.10 Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of Colorado without regard to choice of law rules. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Litigation respecting the terms or enforcement of this Agreement shall only be brought in a court of competent jurisdiction in the State of Colorado.
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any marketing, promotional or advertising materials or activities. Without limiting the generality of the forgoing, neither party shall disclose (i) the terms and conditions of this Agreement or any Statement of Work, or (ii) the existence of the Project or any contractual relationship between BTE and Vendor, or (iii) issue any publication or press release relating directly or indirectly to (i) or (ii) above; without the other party’s prior written consent. [**].
12.18 | [**] |
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BTE EQUIPMENT, LLC | INFINERA CORPORATION | |||||||
By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇. | By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |||||
Name: | ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇. | Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |||||
Title: | Chief Technology Officer | Title: | VP & General Counsel |
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Definitions. In addition to the other terms defined herein, the following capitalized terms shall have the following meanings:
“Acceptance” shall mean the occurrence of Vendor’s fulfillment of the requirements specified in the Agreement for acceptance of the particular Product.
“Acceptance Test Plan” is defined in Section 6.2.
“Affiliate(s)” of a party shall mean any person or entity that now or in the future, directly or indirectly controls, is controlled with or by or is under common control with a party. For purposes of the foregoing, “control” shall mean, with respect to: (a) a corporation, the ownership, directly or indirectly, of fifty percent (50%) or more of the voting power to elect directors thereof or, for purposes of foreign corporations, if less than fifty percent (50%), the maximum amount allowed by applicable law; and (b) any other entity, fifty percent (50%) or more ownership interest in said entity, or with respect to other foreign entities, the power to direct the management of such entity. Affiliates of BTE as of the Effective Date are set forth in Schedule 1.2A, Affiliate List.
“Authorized Users” means: (a) BTE and its Affiliates; (b) employees, consultants, customers and authorized agents of BTE and its Affiliates; (c) third party consultants and other independent contractors performing services for BTE or any BTE Affiliate.
“Change Order” is defined in Section 4.6.
“Claims” are defined in Section 10.1.
“Coding and Schematics” shall have the meaning set forth in Exhibit 2.6, Coding and Schematics, attached hereto and incorporated herein by this reference.
“Critical Milestone” is defined in Section 4.3.
“Default” is defined in Section 9.1
“Delivery Date” is defined in Section 8.1.
“Deposits” are defined in Section 3.2.
“Developed Software” is defined in Section 4.8
“Disabling Codes” is defined in Section 11.3
“Dispute Procedures” are defined in Section 12.1
“Documentation” means, collectively, all of the written, printed, electronic or other format materials published or otherwise made available by Vendor that relate to the functional, operational and/or performance capabilities of the Equipment and Software, as applicable, including all user, operator, system administration, technical, support and other manuals. Documentation includes the specifications set forth in Schedule 1.2C, Specifications.
“Effective Date” is defined in Section 1.2.
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“Equipment” shall mean, collectively, the equipment, hardware, related equipment and other materials specified in a Procurement Document.
“Escrow Agent” is defined in Section 3.2.
“Escrow Agreement” is defined in Section 3.3.
“Evaluation Period” is defined in Section 2.5.
“Evaluation Product” is defined in Section 2.5.
“Feature Enhancements” are defined in Section 2.4.
“Fee Cap” is defined in Section 4.4.
“First Order Product” means, for purposes of Acceptance under this Agreement only, BTE’s first order of Product that has not been previously Accepted by BTE under the terms of Article 6 of this Agreement, including Product that contains Feature Enhancements or material new functionality that have not been previously Accepted by BTE under the terms of Article 6 of this Agreement. For all other purposes, First Order Product shall be considered to have the same meaning as Product.
“Force Majeure” is defined in Section 12.17.
“Installation Date” is defined in Section 8.1.
“Installation Information” is defined in Section 2.3.
“Licensed Software” means the copies of the software programs, in object code format, ordered in accordance with a valid Procurement Document hereunder, including any accompanying Documentation to such Licensed Software which may be provided to BTE by Vendor hereunder.
“Maintenance and Support Services” are defined in Section 5.1.
“Maintenance Release” means any new Software releases including Software releases that incorporate bug fixes and other modifications to the Software that Vendor markets or makes available to its customers from time-to-time to correct deficiencies and/or to otherwise improve or extend the performance of the Software; provided, however, that BTE shall not have RTU rights (unless otherwise specified in Exhibit 2.2 or pursuant to a Software Subscription Service) for any significant new functionality incorporated in such Software release (which such use Vendor shall logically separate from the remaining functionality of the Maintenance Release) for which Vendor charges an additional Software RTU fee to those customers under a maintenance and support services plan or an extended warranty plan.
“Material Deliverables” are defined in Section 4.3.
“Network Element” or “NE” shall mean a single managed element of Vendor’s Equipment that requires Licensed Software to operate. A NE may consist of one or more Equipment chassis that are connected at one physical site and that are capable of being viewed and managed by the Licensed Software as a single managed element. BTE shall not be required to purchase more than one license to Licensed Software for each NE.
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“Prices” shall mean the compensation due and owing for the purchase of Products and Services delivered hereunder in accordance with the terms and conditions of this Agreement.
“Procurement Document” shall mean any electronic or written order for Products or Services in accordance with the terms of the Agreement.
“Products” shall mean the Equipment and Software provided to BTE by Vendor under this Agreement.
“Product Performance Warranty” is defined in Section 11.1
“Product Performance Warranty Period” is defined in Section 11.1
“Project” shall have the meaning set forth in Section 4.1.
“Project Plan” shall have the meaning set forth in Section 4.3.
“Project Managers” is defined in Section 4.12.
“Release Event” is defined in Section 3.3.
“Services” are defined in Section 4.1.
“Software” shall mean all software and computer programs, including the Licensed Software, Developed Software, if any, third party software, embedded software, and Maintenance Releases provided to BTE under this Agreement.
“Source Code” shall means computer Software in the form of human readable source statements for the Software.
“Statement of Work” is defined in Section 4.1. Each Statement of Work shall include the requirements, as applicable, set forth in Exhibit 4.1, Statement of Work Requirements.
“System” shall mean the combination of Equipment and Software described in a Procurement Document or Statement of Work.
“Term” is defined in Section 1.2.
“Territory” means the countries listed in the attached Schedule 1.2B, Territory List, as the list may be amended from time to time upon the mutual agreement of the parties.
“Testing Criteria” shall have the meaning set forth in Section 6.2.1.
“Testing Procedures” shall have the meaning set forth in Section 6.2.2.
“Testing Requirements” shall have the meaning set forth in Section 6.2.
“Vendor Global Account Manager” is defined in Section 1.4.
“Vendor Global Executive” is defined in Section 1.4.
“Vendor Global Program Manager” is defined in Section 1.4.
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SCHEDULE 1.2A – AFFILIATE LIST
Name of Entity | Country | |
(i)Structure, LLC f/k/a PKS Computer Services LLC | USA | |
BTE Equipment, LLC | USA | |
Level 3 Communications, LLC | USA | |
▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇. | ▇▇▇▇▇▇ | |
Level 3 International, Inc. | USA | |
▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇.▇. | ▇▇▇▇▇▇▇▇▇▇▇ | |
Level 3 Communications SAS | France | |
▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ | ▇▇▇▇▇▇▇ | |
▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ | ▇▇▇▇▇▇▇▇▇▇▇ | |
▇▇▇▇▇ ▇ Communications SL | Spain | |
▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | ▇▇▇▇▇▇▇ | |
▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇.▇.▇ | ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |
Level 3 Communications Limited | UK | |
▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇.▇. | ▇▇▇▇▇▇▇ | |
▇▇▇▇▇ ▇ Communications (Denmark) Ltd. | Denmark | |
▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇.▇▇. | ▇▇▇▇▇ | |
▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇.▇. | ▇▇▇▇▇▇ | |
▇▇▇▇▇ ▇ Communications (Austria) Ltd. | Austria |
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SCHEDULE 1.2B – TERRITORY LIST
[**]
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[**] – Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.
SCHEDULE 1.2C – SPECIFICATIONS
The following document is attached hereto:
[**]
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[**] – Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.
EXHIBIT 2.2 – PRICING SCHEDULE
A.1 HARDWARE AND SOFTWARE PRICING
All pricing excludes the cost of shipping, insurance and all applicable governmental fees related to customs, duties, taxes and other such charges, including any applicable VAT charges. The Parties agree that Vendor shall have the right to provide future versions of the Equipment and Software with the same form, fit and function in order to capitalize on evolving technology and to meet the Prices set forth in this Agreement. Such future versions of the Products shall be provided to BTE for certification and once certified, shall be included on the price list below as new versions of such Equipment and Software at the same Price as prior version of such Equipment and Software.
[**]
[**]
In accordance with the Commitment, Vendor shall provide Software at no cost to BTE as specified in Procurement Documents submitted by BTE up to a maximum value of [**], based upon the Prices set forth in Section A.1 (“Incentive Software”).
A.3 [**]
The parties agree that BTE shall have the right to order BMM’s and OAM’s with C+L band capability for BMM’s requiring C-band only capability at the C-band only Prices until such time as BTE has certified Vendor’s C-band only BMMs and OAMs. BTE agrees that it promptly shall certify Vendor’s BMMs. The following modules are impacted:
Module Description | C+L band part number | C band only part number | ||
BMM Type 1 | BMM-4-C1 | BMM-4-CX1 | ||
▇▇▇ ▇▇▇▇ ▇ | ▇▇▇-▇-▇▇-▇▇ | ▇▇▇-▇-▇▇▇-▇▇ | ||
▇▇▇ Type 3 | BMM-4-C3-MS | BMM-4-CX3-MS | ||
OAM Type 1 | OAM-4-C1 | OAM-4-CX1 | ||
OAM Type 2 | ▇▇▇-▇-▇▇-▇▇ | ▇▇▇-▇-▇▇▇-▇▇ | ||
OAM Type 3 | OAM-4-C3-MS | OAM-4-CX3-MS |
A.5 Pre-Deployment DLM Incentive.
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[**] – Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.
The parties agree that between the Effective Date and February 15, 2006, Vendor shall provide certain Digital Line Modules (“DLMs”) to BTE on deferred payment terms for the purpose of providing BTE diversity across BTE’s network in accordance with BTE’s deployment of Products on selected routes (the “Pre-Deployed DLMs”). The Pre-Deployed DLMs shall be clearly marked on the Procurement Document and ordered only for purposes of establishing diversity across BTE’s network and shall consist of a maximum of two DLMs per selected site with associated spares following utilization of the Maximum Spares. The maximum amount of Pre-Deployed DLMs that may be designated by BTE shall be [**] based upon the then-current Prices. BTE agrees that Vendor shall invoice BTE for all Pre-Deployed DLMs upon the earlier of the following: (i) utilization of greater than one hundred Gigbits per second (100 Gbps) per a single BMM at a route with Pre-Deployed DLMs, or (ii) February 15, 2006; [**].
B. Services Pricing. BTE may purchase the following Services from Vendor under the terms set forth below. For purposes of calculating the applicable percentage of the then current Product Price for any of the Services referenced below, amounts relating to Prices shall be only for Products deployed in BTE’s network and the following shall be excluded from the calculation (i) the Price for spares and lab equipment and (ii) any imputed Prices for Software RTU fees acquired by BTE at no cost beyond the base prices set forth in Section A.1 above, including any imputed RTU fees for features that BTE acquired under the Software Subscription Services. All calculations shall include the Future Price Reductions set forth in Section A.3.
B.1 Maintenance and Support Services Pricing:
A. Maintenance and Support Services | Cost: Annual Fee of [**]% of then current Product Price |
BTE shall have the right to purchase Maintenance and Support Services and Vendor shall provide the Maintenance and Support Services described in Article 5 and Exhibit 5.1 of the Agreement and extend the warranty protection provided to BTE under Section 11.1 of this Agreement (Performance Warranty) for each annual period for the prices specified herein. The parties agree that upon the expiration of the Product Performance Warranty Term for a Product, this extended warranty shall automatically be applied to such Product, subject to BTE’s termination rights as set forth in the Agreement, unless otherwise indicated in writing by BTE. Each party shall be responsible for its respective shipping and insurance costs associated with the shipment of Product to the other party for purposes of RMA.
B.2 Other Services. BTE may order the following Services in lieu of or in addition to the Maintenance and Support Services set forth above, as applicable:
A. Technical Support Service | Cost: Annual Fee of [**]% of then current Product Price [**] |
BTE shall have the right to purchase Technical Support Services and Vendor shall provide such Technical Support Services (contacted through a telephone help line) to assist BTE in obtaining a quick response to Problems (the “Technical Assistance Center” or “TAC”) for each annual period for the prices specified herein. The service desk shall log and track trouble tickets for reported
Problems within the scope of 3rd Line Support. The TAC help desk will be available 24 hours per day, 7 days per week and every day of the year (24 x 7 x 365). The number for the Vendor’s Technical Assistance Center is:
1877-INF-5288 (463-5288) /Main ▇▇▇-▇▇▇-▇▇▇▇ Email: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇ FAX: ▇▇▇-▇▇▇-▇▇▇▇ |
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[**] – Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.
The provisions of Section 5.2.2 relating to Initial Response and Section 5.2.3 of Exhibit 5.1 (including all subsections thereof) shall apply to Vendor’s provision of TAC Services.
B. Maintenance Release Service | Cost: Annual Fee of [**]% of then current Product Price [**] |
BTE shall have the right to purchase Maintenance Release Services and Vendor shall provide Maintenance Release Service which provides BTE with all related Maintenance Releases that have been developed by Vendor in support of a Software anomaly as identified by BTE or as otherwise generally provided by Vendor to its customers for purposes of resolving a Software anomaly for each annual period for the prices specified herein. The ability to test and implement the Maintenance Release would be supported by the Vendor technical support team.
C. Resident Engineer at BTE’s Premise | Cost: [**] Per Year Annual Fee (estimate for 2005 and 2006) |
BTE shall have the right to purchase Resident Engineer at BTE’s Premises Services and Vendor will provide such Tier3 Support Engineer to operate from BTE’s premise, 40 (forty) hours per week, Monday – Friday for each annual period for the prices specified herein. Resident Engineer will observe employer holidays and approved days off. A minimum of three (3) weeks per year or one hundred and twenty (120) hours are approved for paid time off (PTO). Vendor agrees that it will back-fill the Resident Engineer during the PTO periods. The role of the Resident Engineer is to provide technical support for Vendor’s Product in support of BTE during the implementation periods and day-day operations. The Resident Engineer also serves as interface and escalation to Vendor for Product issues that may arise (any additional requirements for this role must be agreed to by the Vendor’s V.P. of Customer Service and Technical Support).
D. Software Subscription Service | Cost: [**] per DTN for the first ([**]) DTNs purchased; [**] per DTN each additional DTN purchased (capped at [**] per year) |
BTE shall have the right to purchase Software Subscription Service and Vendor will provide the Software Subscription Service which provides BTE all RTUs for all features and functionality for the most recent release of Software developed by Vendor for each annual period for the prices specified herein. Software Subscription Services may only be purchased by BTE for Products that are covered by (i) the Product Performance Warranty, (ii) Maintenance and Support Services (iii) or the Maintenance Release Service option. To the extent that BTE has purchased Software Subscription Service for the applicable Software deployed in BTE’s network, all new purchases of such Software shall include the same RTUs as the deployed Software for no additional cost beyond the base Prices set forth in Section A.1 above for such Software, regardless of whether Vendor has established separate RTU fees for such Software above the base prices reflected in Section A.1. In the event that BTE elects to discontinue the Software Subscription Service, BTE agrees that it shall be obligated to pay a mutually agreed to reinstatement fee in order to thereafter reinstate the Software Subscription Service, provided that such reinstatement fee shall not to exceed the fees that would otherwise have been paid by BTE had the Software Subscription Service been continued. The parties acknowledge and agree that the purchase of the Software Subscription Service does not obligate Vendor to develop any future development or future release. BTE
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[**] – Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.
acknowledges and agrees that, with regard to any Product purchased under the Agreement, the lack of a future development, other than the Feature Enhancements, does not adversely affect BTE’s ability to benefit from the Product in a manner consistent with its intended use.
E. Per Incident Services | [**] |
BTE must purchase the Technical Support Service to be eligible for Per Incident Services. BTE shall have the right to purchase Per Incident Services and Vendor will provide to BTE such services, pursuant to which BTE shall pay [**] of the then current Price for each module that is repaired by Vendor. If Vendor determines that a module cannot be repaired, Vendor shall notify BTE and BTE shall have the option to purchase a replacement module at the then current Price. Vendor shall not repair defects to a Product that are caused by abuse or improper use, improper maintenance repair except as provided by Vendor or its authorized Service agents, improper storage or by acts of nature or negligent handling. The parties further agree that Vendor shall not charge BTE for any module that is found to be no-trouble-found, provided the fault isolation process included analysis with Vendor Technical Support. If the module is returned without Vendor Technical Assistance and found to be NTF, Vendor will invoice BTE for all associated evaluation cost, not to exceed [**] for the applicable module. Each party shall be responsible for its respective shipping and insurance costs associated with the shipment of Product to the other party for purposes of the Per Incident Services.
B.3. EF&I Services
Vendor shall provide BTE with a [**] credit for EF&I Services which may be utilized by BTE against any invoices for EF&I Services performed by Vendor by December 31, 2005.
This unit based pricing matrix and scope of work covers the site surveys, engineering, furnishing of installation materials, installation, and test and turn-up services of Vendor Equipment for BTE. This estimate is for North America locations only.
Prices are budgetary and would vary with actual site conditions and work required, as well as the size of the network being deployed, and the schedule for the work.
Pricing for full EFI&T Services: | DTN | OTC | ||||
Site Survey and Engineering | [ | **] | [ | **] | ||
Supply of Installation Materials | [ | **] | [ | **] | ||
Including relay rack and power cable | [ | **] | ||||
Materials Credit if relay rack exists on site | [ | **] | ||||
Installation | [ | **] | [ | **] | ||
Test & Turn-Up | [ | **] | [ | **] | ||
Excluding BER Test | [ | **] | ||||
[ | **] | |||||
BER Testing/Hrly | [ | **] | ||||
Includes supply of test equipment | ||||||
Delivery of equipment & materials to sites | [ | **] | ||||
[ | **] | [ | **] |
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[**] – Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.
Notes to pricing:
1. | Horizontal fiber ducting requirement can vary significantly by site, and therefore are not quoted in these unit prices. |
2. | Sales taxes are included in the above materials prices. |
3. | Shipping costs are excluded and will be prepaid by Vendor and billed to BTE at actual cost. |
Scope of Work
Pricing herein is based on supply of the following Services:
Engineering and Furnishing Services:
1. | Conduct a site survey to verify local conditions. |
2. | Preparation of site survey report and site issues report. |
3. | Specification and supply of installation materials, including: |
a. | Equipment racks |
b. | Rack mounting hardware and top support hardware |
c. | Fuse panels for OTC sites |
d. | Vertical fiber duct to connect existing horizontal duct to fiber management in new equipment rack. |
e. | Power cable – 4 runs per network element—60 foot maximum length is assumed |
f. | Ground cable for grounding of new rack to existing ground cable |
g. | Power and ground lugs and terminations |
h. | Fiber optic patch cables |
i. | 4 line fibers for amplifier sites |
ii. | 2 or 4 line fibers for each terminal shelf |
i. | Miscellaneous cabling – alarms, synchronization, etc. |
j. | Labeling materials |
k. | Miscellaneous materials |
4. | Preparation of detailed engineering package in mutually agreed upon format, including: |
a. | Contact list and directions to site |
b. | Site specific scope of work |
c. | Installer work items and installation notes |
d. | List of equipment and installation materials |
e. | Floor plan drawing and rack elevation drawing |
f. | Equipment shelf detail drawings |
g. | Cable running lists – power, fiber, etc. |
h. | Assignment information – power, fiber, etc. |
5. | Preparation of final as-built drawings. |
Logistics:
1. | Delivery of all equipment and materials from centralized staging area (assumed to be staged at terminal sites) to each ▇▇▇ site. |
2. | Warehousing/staging of equipment can be provided upon request. |
Installation Services:
1. | Unpacking, inventory, and inspection of all equipment and installation materials, and reporting of shortages. |
2. | Installation of one equipment rack at each site. |
3. | Installation of fuse panel into new rack at OTC sites. |
4. | Grounding of all new equipment racks to existing ground system. |
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5. | Installation of Infinera optical equipment shelves and amplifiers into equipment racks. |
6. | Installation and termination of power cable (4 each) from customer BDFB to Infinera equipment shelves. |
7. | Grounding of all new equipment shelves. |
8. | Installation of vertical fiber duct from existing overhead duct to fiber management in bay. |
9. | Installation of fiber optic patch cables from equipment to customer fiber patch panels. |
10. | Labeling of all equipment racks, shelves, and cables as per Customer standards. |
11. | Provide red-line of engineering specifications. |
12. | Daily site clean-up and disposal of wastes. |
13. | Supply of all required installation tools. |
Testing Services:
1. | Verification of DC power and grounding. |
2. | Unpacking, inventory, and inspection of plug in cards. |
3. | Install and option all plug in cards. |
4. | Cleaning and connection of all optical cables. |
5. | Fiber insertion loss test on optical jumper cables. |
6. | Equipment configuration and software provisioning. |
7. | Stand alone equipment testing. |
8. | Alarm verification testing. |
9. | Perform BER Testing – 72 hour test per system is assumed. |
10. | Provide hard copy and soft copy of test measurements/results. |
11. | Provide all required test equipment. |
12. | All testing to be in accordance with Infinera standard test procedures. |
13. | Daily site clean-up and disposal of wastes. |
Notes/Assumptions
1. | All overhead cable rack and horizontal fiber ducting is assumed to be existing. |
2. | Adequate DC power capacity and power distribution positions equipped with fuse or breaker are assumed to be available. |
3. | Adequate site grounding is assumed to be available. |
4. | Fiber distribution panels are assumed to be existing. |
5. | The sites are assumed to be accessible by standard vehicles. |
6. | Adequate AC power will be available for powering the tools and test equipment. |
7. | Reasonable site access will be made available for overtime (7 a.m. to 7 p.m.) and some weekend work. |
8. | Non-Union labor is assumed. Union labor can be provided if required for certain sites, for an additional charge. |
9. | RMA’s will be turned around with 24 hours, or spares will be provided for use during deployment. |
10. | Optional fiber characterization services can be provided, including ORL, OTDR, PMD, and CD testing. |
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EXHIBIT 2.4 – FEATURE ENHANCEMENTS
The Parties acknowledge and agree that any future development information in this Agreement is provided for informational purposes only and any dates accompanying such future developments are provided as target dates only. The inclusion of such information and dates is in no event to be interpreted or construed as an obligation on the part of Vendor to provide such future developments, either in whole or in part, or to provide them in any particular manner or time frame.
[**]. The parties acknowledge and agree that any purchase of Product by BTE under this Agreement is not at any time coupled with or conditioned upon Vendor’s delivery of future developments and that there is no intention to require Vendor to provide future developments under this Agreement. BTE acknowledges and agrees that, with regard to any Product purchased under the Agreement, the lack of future developments does not adversely affect BTE’s ability to benefit from the Product in a manner consistent with its intended use. [**] Further, BTE is not obligated to test or purchase any such future developments.
[**]
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[**] – Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.
EXHIBIT 2.5 – EVALUATION AGREEMENT
Evaluation Agreement
This EVALUATION AGREEMENT (the “Agreement”) is dated as of , 200 , between a corporation (“Vendor”) and Level 3 Communications, LLC, a Delaware limited liability company (“Level 3”). The parties agree that the following terms and conditions will govern Level 3’s use of the Vendor Evaluation Product during the Evaluation Period, all as defined below.
“Evaluation Product” means the Vendor product(s) listed in Addendum A.
“Evaluation Period” means the period indicated on Addendum A, unless this Agreement is sooner terminated in accordance with Section 6 below.
3. | VENDOR OBLIGATIONS. |
A. | Vendor will provide to ▇▇▇▇▇ ▇ the services described on Addendum A during the Evaluation Period. Additional services are available at mutually agreeable rates. |
B. | Vendor shall be responsible for and bear all expenses relating to the shipment, installation and maintenance of the Evaluation Product at Level 3’s site during the Evaluation Period. |
C. | Vendor shall provide all Vendor Evaluation Product hardware and software components. |
4. | LEVEL 3’S OBLIGATIONS. |
A. | Level 3 shall provide one or more sites for Evaluation Product installation. Level 3 shall ensure Vendor personnel reasonably prompt access to Level 3’s site and the Evaluation Product for installation, service and support purposes. |
B. | Level 3 shall provide and be responsible for any hardware and software other than the Evaluation Product, unless otherwise agreed by the parties. |
C. | Level 3 shall be responsible to Vendor for the replacement cost of the Evaluation Product in the event of any damage (normal wear and tear excepted) or loss (including theft) to the Evaluation Product while at Level 3’s premises due to Level 3’s negligence or misconduct. |
5. | RESTRICTIONS. |
A. | Level 3 may make a reasonable number of copies of the Evaluation Product software in machine-readable form for its use in accordance with this Agreement and for backup purposes. |
B. | Level 3 shall not sell, distribute, assign, move or otherwise transfer the Evaluation Product to any third party. Except as expressly set forth herein or otherwise authorized by Vendor, Level 3 shall not |
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use, copy or modify the Evaluation Product. If Level 3 violates the terms of this Section 5(b) (except to a successor in interest of Level 3’s business that assumes all of Level 3’s obligations with respect to the Evaluation Products), Level 3’s rights in the Evaluation Products may be terminated by Vendor. |
C. | Unless Level 3 is entitled to receive the source code format of the Evaluation Product software, under no circumstances may Level 3 attempt to create or permit others to attempt to create, by reverse-compiling or reverse assembling or otherwise, any part of the source programs from the object programs or other information provided to Level 3 by Vendor. |
D. | Level 3 shall reproduce in all copies of the Evaluation Product software made by ▇▇▇▇▇ ▇, and in any adaptations thereof, the copyright notice(s) and proprietary legend(s) of Vendor or its licensors. |
7. | INDEMNITY. |
A. | Vendor shall defend, indemnify and hold harmless Level 3 from and against any and all claims, suits, liabilities, expenses, attorney’s fees or damages (collectively “Claims”) for any alleged or actual infringement or violation of any copyright, patent or patented right, or other intellectual or proprietary rights arising in connection with this Agreement and any act or omission hereunder; |
B. | Each party shall defend, indemnify and hold harmless the other party from and against any and all Claims respecting property, including loss of use thereof, injuries to persons, including death, and from any other Claims on account of acts or omissions of such party under this Agreement, or any of its subcontractors, suppliers, officers, agents, employees or servants. A party’s obligation hereunder shall not be limited by the provisions of any workers’ compensation act or similar statute. |
LEVEL 3 COMMUNICATIONS, LLC | [VENDOR NAME] | |||||||||
By: |
| By: |
| |||||||
Name: |
| Name: |
| |||||||
Title: |
| Title: |
|
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ADDENDUM A
[LIST :
1. | EVALUATION PRODUCT |
2. | EVALUATION PERIOD |
3. | EVALUATION SERVICES] |
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EXHIBIT 2.6 – CODING AND SCHEMATICS
Where applicable, the following coding and schematics shall be provided with Equipment purchase under this Agreement:
Visio Templates. Visio templates as mutually agreed by the parties shall be provided for all Equipment.
CAD (Computer Automated Drafting) Drawings. AutoCAD version 2000i (or later) drawings shall be available to BTE upon request as mutually agreed by the parties.
Bar Coding. Vendor shall affix to all Equipment that have serial numbers the appropriate Common Language Equipment Identification (CLEI) supplier part number and serial number bar codes as defined in Bellcore documents as follows:
GR-383-CORE: Generic Requirements for COMMON LANGUAGES Bar Code Labels
GR-485-CORE: COMMON LANGUAGE Equipment Coding Processes and Guidelines Generic Requirements
GR-209-CORE: Generic Requirements for Product Change Notices
Additionally, Vendor shall affix the above referenced supplier part number and serial number bar codes to the outer shipping containers and the packing or shipping list of all Equipment shipped. The parties acknowledge and agree that Vendor product labels with the serial number barcode is located on the base plate of Vendor’s product, and Vendor does not provide bar codes to shipping lists or packing lists.
Escalation List. Vendor shall provide BTE a pre-sales and a post-sales escalation list.
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EXHIBIT 2.8 — TRANSFER OF KNOW-HOW
Vendor’s transfer of know-how shall include information, documentation, executables, tools and other materials regarding or relating to the following:
(a) All available file and data definitions and relationships, regression test cases, data models, published APIs, screen displays and report layouts, reference manuals, user and operating guides and manuals, functional specifications, relating to the Products and custom programming, in both paper and electronic form;
(b) All available utilities, diagnostic programs and related documentation utilized by Vendor in the support and maintenance of the Products;
(c) All security requirements, methodologies and tools to prevent or detect unauthorized access to the Products;
(d) All installation and maintenance of security tools;
(e) Definition and documentation of Product performance metrics and alarms;
(f) Product management and troubleshooting, including how to install and utilize management and remote troubleshooting tools, alarms, operational measurements;
(g) Maximizing the use of the Products to perform key operational functions including, without limitation, data backups, program downloads and security checks and how to automate such functions to minimize manual intervention (including protocols/published APIs to interface with such functions as provisioning, configuration management, billing record generation, accounting, record generation) and custom APIs;
(h) All available Documentation of published APIs;
(i) The implementation of: (1) the Products; and (2) Maintenance Releases; and (3) all interfaces between and among the Products and Maintenance Releases;
(j) Generally available Maintenance Releases to the Products;
(k) How user set parameters (and combinations of parameters) impact performance and operations of (1) traffic management, (2) workload balancing, (3) capacity planning, (4) routing and (5) overall network and system performance analysis mechanisms supplied in the system;
(l) Any and all updated, changed or revised policies, practices, procedures, processes and/or techniques with respect to the knowledge transferred to BTE hereunder;
(m) Install Documentation for Products, including preparations, install process steps, error situations and resolution, validation of correct installation. Process for backing out installed Products and reversion to previous version, including preparation steps, execution and troubleshooting, validation of integrity of re-installed product/environment;
(n) Failover documentation, including (1) conditions that trigger failover; (2) data/integrity considerations and remedial actions to detect and correct them; (3) methods to induce failover scenarios; and (4) failure modes document; and
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(o) Documentation of all Craft, MML, API interfaces supporting data introduction to operate the system, including functions of: provisioning; configuration management; network monitoring; control; billing and accounting interfaces, operational measurements, alarms, metrics, or other operational processes.
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EXHIBIT 4.1 — STATEMENT OF WORK FORMAT
A. | Introduction and Scope of Project |
B. | Project Plan |
C. | Milestone Event Dates |
(i) | Critical Milestones |
(ii) | Other Milestones |
D. | Dates for Completion of Deliverables |
(i) | Material Deliverables |
(ii) | Other Deliverables |
E. | Payment Terms |
(i) | Time and Materials (Choose as applicable) |
• | Fee Cap Amount |
• | Hourly Rates |
• | Materials Estimate |
• | Fee Estimate and Expense Estimate for Project (not to be exceeded without further authorization from BTE) |
(ii) | Fixed Fee (Choose as applicable) |
• | Firm Fixed Price (inclusive of all labor, materials and expenses) |
• | Fixed Fee Amount with Reimbursables (specify if expenses or other costs not included) |
• | If Expenses Not Included, Expense Estimate for Project |
F. | Office Space, Equipment & Supplies (To Be Provided by BTE) |
G. | Designated Project Managers |
H. | Assigned Personnel |
I. | Progress Reports |
J. | BTE Responsibilities (if any) |
K. | Assumptions |
L. | Acceptance Testing/Test Plan |
M. | Billing Schedule |
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EXHIBIT 4.2 —TRAVEL AND OUT-OF-POCKET EXPENSE POLICY
Travel and related expenses represent a significant controllable expense with respect to the operations of BTE Equipment, LLC (“BTE”). If and as authorized in the applicable master agreement between the parties (the “Agreement”), this Travel And Out-Of-Pocket Expense Policy (the “Policy”) shall serve as the basis for reimbursement of reasonable expenses incurred by Vendor employees in the performance of Services for BTE. Exceptions to this Policy must be approved in writing by the authorized BTE manager in advance of incurring the expense. BTE reserves the right to revise this Policy from time to time.
For purposes of this Policy, the following definitions apply:
(1) “Assignment” means the length of time an individual is required to work at a BTE site. Use of individual(s) on concurrent tasks/subcontracts shall be considered as one assignment if a break of less than two weeks occurs. Replacement of individuals based on personal or business requirements shall be interpreted as though the same individual was assigned. Example: Employee A fills a Services requirement for 45 days. Employee B replaces A and performs an additional 50 days. Total of this assignment is 95 days. As an exception, when an employee resignation occurs which is outside the control of Vendor, the replacement employee may be treated as starting a new assignment.
(2) “Local Employee” means an employee whose residence or Primary Work Site is within a radius of 85 miles of a BTE site.
(3) “Travel Expenses” means actual costs for lodging, meals and incidental expenses.
(4) “Primary Work Site” means the place where the majority of the employee’s work time is spent, or the place where the employee returns during working hours upon completions of special assignments1.
(5) “Days” means calendar days.
3. Applicability
Reimbursement for Travel Expenses, as contained herein, shall be made for those designated and authorized employees of Vendor performing Services who are non-Local Employees during the period of their Assignment to perform Services. Vendor shall pay for all Travel Expenses, subject to reimbursement by BTE in accordance with the Agreement and this Policy. Travel Expenses incurred outside of the scope of the Vendor employee’s Services will be denied. This includes, but is not limited to, Travel Expenses incurred:
(i) | Prior to the execution of the Agreement (unless otherwise approved in writing); |
(ii) | After termination of the Agreement or applicable Statement of Work; |
(iii) | At a location not included in the Agreement of applicable Statement of Work; |
(iv) | During the Term of the Agreement, but not authorized by the BTE manager, if such prior authorization is required; |
(v) | Travel Expenses in excess of those allowed under this Policy; |
(vi) | Travel Expenses incurred for reasons not directly related to the Services. |
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Only those Travel Expenses which are ordinary and necessary to accomplish the purpose of the business trip are eligible for reimbursement. Entertainment expenses, including alcohol, are not reimbursable. Income and other taxes related to the services provided by Vendor’s employee are not eligible for reimbursement. Vendor will be responsible for all unapproved Travel Expenses.
At the request of BTE, Vendors shall certify, in writing, the place of residence for any Vendor employee. Completed certifications shall be submitted to BTE and Vendor shall maintain a copy of the certification.
IF REQUESTED, BTE WILL NOT REIMBURSE TRAVEL RELATED EXPENSES UNTIL A PROPERLY EXECUTED CERTIFICATE OF RESIDENCE IS PROVIDED.
4. Lodging, Meal and Incidental Expenses
(A) For travel to a BTE site within the continental ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇:
(i) For assignments of 90 days or less, costs incurred for Travel Expenses shall be reimbursed only to the extent that they do not exceed, on a daily basis, the maximum established in the General Services Administration Federal Travel Regulation Maximum Per Diem Rates for travel in the continental 48 United States (▇▇▇▇://▇▇▇▇▇▇▇▇▇▇▇.▇▇▇/▇▇▇/▇▇▇▇/▇▇/▇▇▇▇▇▇▇▇/▇▇▇/▇▇▇▇▇▇▇/▇▇▇▇▇▇▇.▇▇▇▇). The daily Travel Expense allowance is for lodging, meals and all fees and tips to waiters, porters, baggage handlers, and other hotel employees. Expenses for entertainment and personal convenience items such as alcohol, in-room movies, reading material and clothing are not reimbursed. Vendor shall not “host” dinners or events for BTE employees and thereafter seek reimbursement from BTE. “Hosting” costs shall be Vendor’s responsibility.
(ii) Local Employees of Vendor are not entitled to reimbursement for Travel Expenses.
(iii) Travel Expenses covering any vacation period(s) taken in conjunction with travel (including weekends or holidays taken in conjunction with vacation), and the periods covering return trips to the employee’s place of residence or Primary Work Site, are not reimbursable.
(B) Costs incurred for Travel Expenses for destinations outside of the continental 48 United States shall be reimbursed only to the extent that they do not exceed, on a daily basis, the maximum per diem rates in effect at the time of travel, as set forth in the:
(i) For travel in Alaska, Hawaii, the Commonwealth of Puerto Rico, and territories and possessions of the United States, the amounts set forth in the Joint Travel Regulations, Volume 2, Appendix A, (▇▇▇▇://▇▇▇.▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇▇);.
(ii) For travel in foreign destinations not covered in part (i) above, the amounts published in the U.S. Department of State Maximum Travel Per Diem Allowances for Foreign Areas (▇▇▇▇://▇▇▇.▇▇▇▇▇.▇▇▇/▇/▇/▇▇▇/▇▇▇▇/).
5. Air Travel
Coach/economy class for domestic and international travel. Airfare reimbursement shall not exceed the lowest commercial discount airfare or customary standard airfare (coach or equivalent), except when such accommodations are not reasonably available.
Business-class travel MAY be approved in writing in advance by the responsible BTE manager if the following circumstances exist:
(i) | No other class of service is provided on regularly scheduled flights between origin and destination; |
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(ii) | No space is available in coach class in time to meet the planned travel, which is urgent and cannot be postponed; |
(iii) | Use of business class is required to accommodate a disability or special medical need; |
(iv) | Coach class on an authorized foreign carrier does not provide adequate sanitation or health standards; |
(v) | There is an overall savings (subsistence costs, overtime, lost productive time) compared to waiting for coach class. |
Travel schedules shall not include return trips for convenience unless approved by BTE in advance.
6. Rental Cars
Cost of local transportation by rented car shall be allowed for business related travel, including travel to and from the airport. Rental cars shall be limited to automobiles in the economy (E) and midsize (M) categories. Rental car usage will be authorized as follows: economy size for two or less travelers (for every 2 travelers, 1 car); one midsize for three or more travelers (for every 3 travelers, 1 car). Examples: 5 travelers, 1 midsize and 1 economy size car; 6 travelers, 2 midsize cars. Receipts are required for reimbursement.
Local and non-local employees require prior written authorization from BTE to utilize their personal automobiles in connection with business travel under the Subcontract. Personal automobile use will be reimbursed at the rate specified in the current Internal Revenue Service guidelines per mile for travel directly related to performance of the Services, except that daily local mileage (back and forth to work) shall not be compensated.
For assignments of forty-five (45) days or longer, each Vendor employee is entitled to receive reimbursement for travel costs covering a trip to their residence. Reimbursement shall be limited to payment for one trip every 30 days and to transportation costs only. The initial return trip shall not be made until the employee has been at the assignment for at least 25 days, unless authorized by BTE in advance.
9. Receipts/Itemizing Expenditures
Travel expense accounts shall be submitted, with copies of all receipts for expenses over $25.00, itemizing expenditures for which reimbursement is requested. Reimbursement for gasoline for rental cars is not made for local travel while at the assignment. An original or legible photocopy of receipt shall be maintained by Vendor for audit purposes.
Where Vendor employees visit more than one client on the same trip, the expenses incurred are apportioned in relation to time spent with each client.
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EXHIBIT 4.15 — BACKGROUND CERTIFICATION
Vendor hereby certifies that with respect to any employee, agent, representative or subcontractor (“Vendor-Employee”) requiring unescorted access to a BTE facility or BTE network, Vendor shall have conducted a background investigation that meets the specified requirements.
Vendor must conduct a background investigation for each Vendor-Employee requiring unescorted access to a BTE facility or access to the BTE network sufficient to demonstrate compliance with the following requirements, as applicable:
[**]
In addition, Vendor-Employee must possess the education and/or applicable professional license and related professional certificates commensurate with the position. Upon request, Vendor shall demonstrate compliance with this requirement as applicable to the nature of the services to be offered by Vendor-Employee. [**].
In the event that Vendor-Employee does not meet the requirements of the background investigation, but Vendor has a reasonable belief that extenuating circumstances exist which require or demonstrate that Vendor-Employee should be granted Unescorted Access Authorization, Vendor shall obtain a written release executed by Vendor-Employee and deliver a copy of the same to BTE prior to discussing such circumstances with the designated BTE manager and the Vice President, Global Security. BTE shall, in its sole discretion, determine whether the circumstances justify an exception to the requirements allowing Vendor-Employee unescorted access authorization.
Upon request, Vendor shall provide BTE with adequate proof of its compliance with the above standards. Notwithstanding anything in the Agreement to the contrary, Vendor shall indemnify BTE for any Claims arising in connection with this Certification and any act or omission hereunder.
VENDOR | ||||||
By: |
| |||||
Name: |
| |||||
Title: |
|
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[**] – Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.
SCHEDULE 1 TO EXHIBIT 4.15—REQUEST FOR UNESCORTED ACCESS AUTHORIZATION
Vendor Should Complete All Information In Section I And Submit To The Responsible BTE Manager For Completion of Section II
SECTION I (TO BE COMPLETED BY VENDOR FOR EACH VENDOR-EMPLOYEE)
Vendor Name: |
|
Vendor-Employee Name and Title (Print): |
|
Describe Services To Be Rendered by Vendor-Employee: |
|
The individual named above meets the requirements, including the background investigation requirements, set forth in the Vendor Security Standard. The individual named above is aware of the requirements for security and conduct and understands and agrees to comply with those requirements as defined in the Vendor Security Standard while present upon BTE property. I am duly authorized by Vendor to sign this form on behalf of Vendor.
MUST BE SIGNED BY RESPONSIBLE VENDOR MANAGER
|
|
| ||
Printed Name and Title/Signature | Date | Phone |
SECTION II (TO BE COMPLETED BY RESPONSIBLE BTE MANAGER)
Name of Responsible BTE Manager: |
|
Agreement/PO #: |
| Contract #: |
| Sub-Contract #: |
|
Date Unescorted Access Authorization is to be: Activated: |
| Terminated: |
|
Days of the Week that Unescorted Access Authorization is required: S M T W TH F S
Facilities/Areas/Networks and Hours for Unescorted Access Authorization (Check All That Apply):
Hours: ¨ Business Hours ¨ 24x7
Type of Facility: ¨ Interlocken ¨ Gateway ¨ ▇▇▇ Site ¨ 3R Site ¨ D-Node ¨ Other
Location of Facility: |
|
Access Limited to Which Areas/Buildings: |
|
VERIFICATION:
I certify, as the responsible BTE manager, that the above-indicated Vendor-Employee requires Unescorted Access Authorization to perform a necessary labor Service Function (as defined in Global Security Policy 04) for BTE. I further certify that the areas and access being requested are necessary for completion of the assigned task. I understand that if the Vendor-Employee is not providing a labor Service Function, I must hold a title of Vice-President or higher to authorize the Unescorted Access Authorization for the Vendor-Employee.
|
47
BTE Manager | (Printed Name and Title/Signature) | Dept. Number | Phone |
48
EXHIBIT 5.1 — MAINTENANCE AND SUPPORT
5.1 Scope of Services. Vendor shall provide the following Maintenance and Support Services to BTE for the Licensed Software and where applicable, Equipment. If specifically provided in an applicable Statement of Work, these Services shall also be provided for in any Developed Software:
5.1.1 Maintenance Releases and New Features. Under Vendor’s Support Maintenance Agreement, Vendor will provide to BTE: (a) all Maintenance Releases, including but not limited to bug fixes necessary to operate the Software on the current versions of the Equipment manufacturer(s)’ operating system Software and all Maintenance Releases necessary to maintain compatibility with all embedded third party software. Vendor shall provide such Maintenance Releases as part of Vendor’s general release of Software and when the first twenty percent (20%) of Vendor’s customers receive such Maintenance Release; provided, however, that BTE shall have the right to remain on any integer release of the Software for the longer of: [**]. Except as specifically detailed in Exhibit 2.4, Feature Enhancements, Vendor shall develop all Maintenance Releases and new releases of Licensed Software so as to maintain compatibility with the existing Product operating platform and without requirement for any additional hardware for implementation. Upon completion of installation of any Maintenance Release, Vendor shall warrant the operation and functionality of the Software, in accordance with the balance of the Product Performance Warranty Period for the Product as set forth in the terms set forth in Article 11, Warranties, and shall provide all Service and Maintenance and Support Services for such Maintenance Release as set forth in the Agreement.
49
[**] – Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.
5.2 | Service Escalation Procedures. |
(b) Critical Defects. “Critical Defects” means conditions under which the Product is partially inoperative, still usable by BTE, but creates a critical situation with respect to BTE’s business operations. The inoperative portion of the Product severely restricts BTE’s operations.
50
(c) Major Defects. “Major Defects” means conditions under which the Product is usable by BTE, with limited functions, but creates a manageable situation with respect to BTE’s business operations. The condition is not critical to overall BTE operations and does not severely restrict such operations.
“Defect Resolution” is the time elapsed from BTE’s report of a defect to the time Vendor provides a final correction or modification of the Product that corrects the root cause of the defect.
“Initial Response” means the time it takes from BTE’s initial report of the defect until BTE speaks with the appropriate Vendor subject matter expert as set forth in the escalation table under Section 5.2.3 herein. The measurement of Initial Response time does not apply when a BTE call is related to a previously reported defect.
“Service Restoration” means the time it takes Vendor to apply a functional resolution to the reported defect, meaning Vendor provides BTE with a temporary fix or workaround that solves a reported defect and that can be used by BTE with minimal inconvenience and minimal impact on BTE’s business operations.
Vendor shall exercise its best, continuous and uninterrupted efforts, twenty-four (24) hours a day, seven (7) days a week, to achieve Service Restoration for any Catastrophic Defects and Critical Defects as soon as possible after reported by BTE with a quarterly non-binding target of mean time to restore of one (1) hour. Without limiting the generality of the foregoing, the parties agree that the time frames for Initial Response, Service Restoration and Defect Resolution set forth in the following table represent the outside time limit for Initial Response, Service Restoration and Defect Resolution and that BTE expects Vendor to achieve time frames that are better than the time frames set forth below.
Severity Level | Initial Response | Service Restoration/ Work Around | Defect Resolution | |||
Catastrophic Defect1 | [**] | [**] | [**] | |||
Critical Defect1 | [**] | [**] | [**] | |||
Major Defect | [**] | [**] | [**] | |||
Minor Defect | [**] | [**] | [**] |
1 | With respect to all Catastrophic and Critical Defects, Vendor shall provide hourly status updates to BTE until Service Restoration has been achieved. |
51
[**] – Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.
observe the following management notification procedures with respect to all unrestored Catastrophic Defects and Critical Defects:
Technical and management escalation contact information for the persons set forth in this Section are as follows:
Level | Name | Position | Phone # | Pager | | |||||
Tier3 Support | 24/7 TAC | Technical Support Engineer | [**] | n.a. (blackberry) | [**] | |||||
Technical Support Manager | ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | Manager, Service and Support | [**] | n.a. (blackberry) | [**] | |||||
VP, Service and Support | ▇▇▇▇▇ ▇▇▇▇▇ | Vice President, Service and Support | [**] | n.a. (blackberry) | [**] |
(a) Operational reviews and service reports within mutually agreed to time frames (but no less than quarterly), which reports shall include, without limitation: (i) a detailed summary and
52
[**] – Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.
status of all defects reported by BTE; (ii) the number of remote accesses by Vendor into BTE’s systems; (iii) the number of Maintenance and Support Services-related on-site visits; and (iv) Maintenance Releases sent and applied to Products; (v) analysis of hardware and Software release schedules, and (vi) an analysis of RMA requests and fulfillment of same by Vendor; and
(b) Access to any performance evaluation or troubleshooting Software, tools or utilities that are generally available to Vendor’s customers to aid BTE in monitoring Product usage and projecting resource needs.
5.2.6 Failure to Meet Service Restoration Response Times. [**]
Vendor shall not be responsible, nor will liquidated damages apply, if a failure to meet the Service Restoration response time for Catastrophic and Critical Defects is due to the Vendor’s operator error (including, without limitation, lack of fiber cleaning procedures, improper ESD procedures, non-supported hardware or software configurations, unavailable spare parts unless caused by Vendor’s failure, unavailable BTE technicians to support remote inquiries, or inability to access a network element), or if such failure was due to a facility power issue, Force Majeure or other item beyond the control of Vendor. The liquidated damages calculation shall exclude any amounts related to Products used by BTE for spares or Products that have not reached Acceptance.
BTE may elect to acquire liquidated damages through application of credit off future purchases or, at BTE’s option, through payment by Vendor in immediately available funds.
5.2.7 Failure to Meet Return to Factory. [**].
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[**] – Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.
EXHIBIT 5.4 – TRAINING REQUIREMENTS
Vendor
Training Course Overview
Training Courses
Vendor offers customer-training courses on the Digital Transport Network Product Overview, Turn Up and Test, OAM&P. All of the following courses are based on course training at a location and site reasonably selected by BTE which may include Vendor’s facility in Sunnyvale California. Additional costs for travel expenses and time will be added to any training at BTE’s site (unless otherwise specified in this Agreement) and will be mutually agreed by Vendor and BTE.
Infinera DTN Product Overview – (1 Day)
Digital Transport Network (DTN) Product Overview – (1 Day) Course will provide overview of Infinera Digital Optical Network® architecture, network applications, and product description. This will cover DTN and Optical Line Amplifier system architecture, hardware overview, signal flow, and an architectural, feature and capabilities overview of the MPower Graphical Node Manager (GNM) and MPower Element Management System (EMS).
DTN Turn Up and Test (4 Days)
This course will provide an overview of procedures to commission a Digital Transport Chassis (DTC) and an Optical Transport Chassis (OTC). This will include Commissioning a Gateway Network Element (GNE), Commissioning a Sub Network Element (SNE), Provisioning the Optical Supervisory Channel (OSC), Fibering a digital span, Provisioning a circuit, and interpreting alarms
DTN OAM&P (4 Days)
Course will provide overview of procedures for operations, administration, maintenance, and provisioning of the DTN and Optical Line Amplifier. This will include use of the MPower GNM, alarm descriptions, troubleshooting, circuit pack configuration, querying and provisioning a working network element, understand performance monitoring and alarm clearing techniques, and an overview of test equipment.
MPower EMS (3 Days)
Course will provide overview of procedures for operations, administration, maintenance, and provisioning of the DTN and Optical Line Amplifier from a network view. This will include use of the MPower EMS, alarm descriptions, network troubleshooting, circuit pack configuration, querying and provisioning a working network, understand performance monitoring and alarm clearing techniques, and an overview of test equipment.
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EXHIBIT 5.5 – SPARE EQUIPMENT
SPARING REQUIREMENT:
Subject to the Commitment, the parties agree that Vendor shall provide all active, non-redundant, field replaceable Equipment for network sparing (“Spares”) for all routes for which BTE submits Procurement Documents to Vendor (with specified Delivery Dates within the established lead times under Article 8) by [**]. For purposes of this section the parties agree that MCMs, OMMs, Fan trays, power entry modules, OTCs, DTCs, DCM, Air Filters, Blanks, doors, and alarm panels shall not be considered Spares. [**]. For Procurement Documents specifying Spares, the parties agree that Vendor and BTE will mutually agree on the Spares required for the Equipment being purchased by BTE based on the Spares Formula (set forth below). Concurrent with the shipment of the Equipment corresponding to a Procurement Document, Vendor agrees to deliver to the BTE sparing depot agreed by the parties (each a “Spares Depots”) the corresponding Spares. [**].
The Parties agree that the total Price of Spares [**] shall not exceed [**] U.S. Dollars ([**])(the “Maximum Spares”). [**].
Spares Formula:
[**]
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[**] – Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.
EXHIBIT 5.6 – LAB EQUIPMENT
With respect to lab gear, the parties agree as follows:
¨ BTE shall be able to keep the approximately [**], as specified on the attached Schedule 5.6A, of Equipment currently in BTE’s Broomfield Colorado [**]
¨ Vendor shall provide BTE with Product credits for the purchase of additional lab Equipment at the [**], subject to a maximum additional credit of [**].
¨ BTE will be allowed an advancement of Product credits for purchase of lab Equipment up to a cumulative [**].
¨ Prices set forth in this Agreement will apply for all Equipment ordered by BTE exceeding the available Product credits
¨ Product credits specified in this Exhibit may be applied up to [**].
¨ [**].
¨ All lab Equipment shall be supported under the current Maintenance and Support Services in effect for BTE’s network deployment of Equipment [**].
¨ Vendor shall provide changes to lab Equipment and Equipment retrofits to support any Software Enhancements [**]
¨ [**].
¨ [**].
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[**] – Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.
SCHEDULE 5.6A – [**]
[**]
57
[**] – Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.
EXHIBIT 6.1.2 - STANDARD INSTALLATION CHECKLIST
Quality Checklist for the Infinera DTN/Optical Line Amplifier Network Element v1.0
IMPORTANT: This procedure is intended to be used as guideline for meeting all the requirements of the latest version of the Level 3 Standard with a Document ID of TR-ST-0018 and the Infinera DTN Hardware Installation Guide. Refer to the latest and most current versions or releases available and reference the then current Vendor Product Hardware Installation Guide/Test and Turn-Up Documentation.
Site: | ||
NE Name: | ||
DTN or Optical Line Amplifier?: | DTN | |
Installer: | ||
Date: | ||
Clarify Case Number: |
Initial | Task Details | Reference | ||||
Position and Mount the Bay/Chassis | ||||||
Quality Checks | Channel Bay | 1. Is the bay plumb vertically; should not exceed 3/16” (TE&IG 3.2.18)? | ||||
2. Is the bay plumb and level; should not deviate more than 1/16” from other bays (TE&IG 3.2.31)?
| ||||||
3. Is the bay in alignment, both front and back, with the rest of the lineup (TE&IG 3.2.20)? | ||||||
Raised Floor | 1. For Non-earthquake zone sites, is raised floor hardware installed per Level(3) standards (TE&IG 3.2).
| |||||
1a. Are flat steel and double nuts installed under the raised floor tiles as required (TE&IG 3.2.29)?
| ||||||
2. For EQ zone sites, is the raised floor hardware installed per Level(3) standards (TE&IG 3.9) and the DC Power and Infrastructure Standards v6.0; Section F.
| ||||||
2a. Are flat steel and double nuts installed under the raised floor tiles as required (TE&IG 3.2.29)? |
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3. Is the threaded rod anchoring the bay protruding no more than 3 threads above the nut (TE&IG 3.2.7)?
| ||||||
4. Is the threaded rod anchoring the bay under the floor to the unistrut protruding at least 3 threads beyond the spring nut (TE&IG 3.2.7)?
| ||||||
Concrete Floor | 1. Anchors should be set with a setting tool and be flush with the floor tile (TE&IG 3.2.9)
| |||||
Top Support | 1. If top supporting the bay w/ aux framing channel running perpendicular to the bay, the aux framing channel should not extend past the front edge of the top of the bay.
| |||||
2. End caps installed on aux framing channel or unistrut installed perpendicular to the bay (TE&IG 3.2.51)?
| ||||||
3. Any threaded rod or bolt fastened to the top of the bay should be engaged to the final thread and not protrude past the final thread further than the amount equal to the diameter of the bolt or rod (TE&IG 3.2.6).
| ||||||
Chassis Mounting | 1. The DTC, DMC and OTC Chassis’ shall be forward mounted 5” in the channel bay. The rack ears should be installed in the 5” position. See the Infinera DTN Hardware Installation Guide for detail.
| |||||
2. The chassis’ shall be installed with the first chassis installed in its assigned position at the top of rack and subsequently installed chassis’ from the top down.
| ||||||
3. For a DTC chassis, install 8 rack screws per side.
| ||||||
4. For an OTC chassis, install 4 rack screws per side.
| ||||||
5. For a DMC chassis, install 2 rack screws per side.
| ||||||
Hardware | 1. All hardware should be tightened to manufacturer’s specifications, not finger tight (TE&IG 3.2.5).
| |||||
2. Hardware tightened against clips or washers should not be so tight as to bend the clip or washer .
| ||||||
3. Threaded rod installed vertically under the floor should be plumb (TE&IG 3.2.18).
| ||||||
4. Any cut threaded rod or aux framing channel/bar or unistrut should have cut ends painted w/ Equipment ▇▇▇▇ enamel (TE&IG 3.2.3; 3.2.45).
| ||||||
5. Exposed threads-all threaded hardware should be engaged to the final thread and not protrude past the final thread further than the amount equal to the diameter of the bolt, screw or rod (TE&IG 3.2.6)
| ||||||
Bay/Chassis Grounding | ||||||
Quality Checks | Bay Ground Cable | 1. Bend Radius minimum of 1’ (TE&IG 3.8.19)?
| ||||
2. Direction of bay ground cable bend pointing towards the Office Principle Ground Point (OPGP) (TE&IG 3.8.20)? |
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3. 145C Tag labeled “Frame Ground” is installed on the ground cable. Both ends of the cable should be labeled if both ends of the cable cannot be seen from a single location (TE&IG 3.8.12).
| ||||||
Ground Cable H-Tap | 1. H-Tap wrapped with 2 layers of electrical tape (TE&IG 3.8.8; 3.5.53)?
| |||||
2. H-Tap secured in at least two places w/ #9 waxed lacing cord (TE&IG 3.8.8)?
| ||||||
Chassis Ground to Bay Frame | 1. The Infinera DTC/OTC chassis shall be grounded in one location per the Infinera DTN Hardware Installation Guide adhering to the standards below.
| |||||
Ground Lugs | 1. Proper number of crimps on lug (Short barrel lug - 2 w/ a ratcheting hand crimper, 1 w/ a hydraulic lug crimper; Long barrel lug - 4 w/ a ratcheting hand crimper, 2 w/ a hydraulic lug crimper)?
| |||||
2. Crimper die stamps facing outward and aligned (TE&IG 3.5.43)?
| ||||||
3. Ground wire should be fully inserted into the connector, not to exceed 1/8” under inserted (TE&IG 3.5.41)?
| ||||||
4. Maximum shiner length is 1/16” between the cable insulation butt and the end of the lug (TE&IG 3.5.43).
| ||||||
5. Clear heat shrink installed over barrel, not covering inspection window (TE&IG 3.8.27).
| ||||||
6. Apply anti-oxidant grease to all exposed wire before crimping and lugs and surfaces before connecting (TE&IG 3.5.37).
| ||||||
Install/Terminate Power Leads | ||||||
Quality Checks | Compression Lugs | 1. Short barrel lugs require two crimps (TE&IG 3.5.56) w/ a ratcheting hand crimper and 1 w/ a hydraulic lug crimper. The first crimp should be closest to the tang of the lug (TE&IG 3.5.42). Die Stamps should face outward and be visible when connected (TE&IG 3.5.39).
| ||||
2. Clear heat shrink is required and should cover no more than 1/2” of the lug barrel (TE&IG 3.5.43-44).
| ||||||
3. Maximum shiner length is 1/16” between the cable insulation butt and the end of the lug (TE&IG 3.5.43).
| ||||||
4. At the Infinera chassis PEM, torque power connections to 35 in./lbs. with a torque wrench (TE&IG 3.2.5).
| ||||||
5. A thin coating of No-Ox should be applied to both the copper wire before crimping and the lug before connecting (TE&IG 3.5.37) .
| ||||||
H-Taps | 1. H-Taps staggered and not installed over any rung on the cable ladder.
| |||||
2. H-Tap connection covered in two layers of electrical tape prior to covering (TE&IG 3.5.53)
| ||||||
3. H-Tap covers secured with lacing cord at both ends (TE&IG 3.5.55). |
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Secondary DC Power Cable | 1. Power cables secured per TE&IG requirements in 3.4.63.
| |||||
2. A Feed cable is red; B Feed cable is blue; Return cables are black (TE&IG 3.4.52).
| ||||||
3. Confirm the bending radius of the power cable is 5 times the diameter of the cable (TE&IG 3.4.56).
| ||||||
4. The battery and battery return cables are a pair and must be run stacked with the return cable on the bottom (TE&IG 3.4.59)
| ||||||
Tertiary DC Power Cable (Optical Line Amp Racks Only) | 1. 14AWG wire is required for the connection from the fuse panel to the OTC PEMs. A Feed cable is red; B Feed cable is blue; Return cables are black (TE&IG 3.4.52).
| |||||
2. Wires shall be inserted so that after being crimped the cable is flush with the inspection window of the lug (TE&IG 3.5.59).
| ||||||
3. Space between wire insulation and the body of solderless connectors and power lugs shall be kept to a maximum of 1/16” (TE&IG 3.5.61).
| ||||||
4. Blue terminals (T&B RB-14-10) shall be used w/ 14AWG wire (TE&IG 3.5.64).
| ||||||
5. Verify the fuse assignment chart in the Apex fuse panel is correctly filled out (TE&IG 3.7.23).
| ||||||
Install Fiber Cable Management to the bay | ||||||
Quality Checks | Fiber Management | 1. Is the fiber management duct secured at both downspout and to the bay (TE&IG 3.4.71)?
| ||||
2. At DTN sites, 4” slotted vertical fiber guide is installed on both sides of the rack?
| ||||||
3. At Optical Line Amp sites, 2” slotted vertical fiber guide is installed on the right side of the rack?
| ||||||
Install Peripheral Cabling to the bay | ||||||
Quality Checks | Terminal Server/ Ethernet | 1. All cabling is subject to applicable Level(3) standards; specifically TE&IG Section 3.4 Cabling; General 3.4.1 through 3.4.46.
| ||||
2. Twisted pairs should not be exposed outside the cable sheath where the cable enters the RJ-45 connector.
| ||||||
3. Ethernet: DTN sites only: Connection is required from the DTC I/O Panel; DCN Port A to the Trans-LH ethernet switch. Optical Line Amp sites do NOT require an ethernet connection.
| ||||||
4. Terminal Server: DTN sites: Connection from the MCM craft port in Slot 7A to the terminal server RJ45 panel (either a 16 or 32 port panel).
| ||||||
5. Terminal Server: Optical Line Amp sites: Connection from the OMM craft port in Slot 1A to the terminal server RJ45 panel (either a 16 or 32 port panel).
| ||||||
Timing Cable | 1. Currently, timing cable is NOT required for Infinera DTNs or Optical Line Amplifiers.
|
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Install/Terminate Fibers to the bay | ||||||
Quality Checks | Fiber Jumper Installation | 1. All fiber optic cabling is subject to applicable Level(3) standards; specifically TE&IG Section 3.4 Cabling; Fiber Optic 3.4.64 through 3.4.80 and the Fiber Optic Cable Jumper and Attenuator Requirements for the Long Distance Network ver. 2.3
| ||||
2. Are fibers single mode (yellow), 1.75 or 2mm jacketed, simplex, and the connectors polished to a UPC specification (TE&IG 3.4.79; Fiber Optic Cable Jumper and Attenuator Requirements for the Long Distance Network ver. 2.3)
| ||||||
3. Is the minimum bend radius being observed on all fibers (TE&IG 3.4.68)?
| ||||||
4. Is all fiber neatly dressed, not pinched or microbent, and secured loosely with velcro or protected w/ fiber paper (TE&IG 3.4.66; 3.4.67)?
| ||||||
5. Optical Line Amp sites: Are the OSC In/Out fibers cross connected between OAM circuit packs? If no DCMs are installed, is the DCM Out port looped to the DCM In port on each OAM module?
| ||||||
6. Are fibers run diversely as required (TE&IG 3.4.78)? Note: the only requirement for diverse routing of fiber jumpers is at the Optical Line Amplifier sites. The Eastbound and Westbound fibers should be run diversely to the OSX.
| ||||||
7. DTN Sites: For BMM-4-C2-MS-A or BMM-4-C3-MS-A circuit packs only, if no DCM is installed, is the DCM Out port looped to the DCM In port w/ a 5dB pad installed in the loop?
| ||||||
Bay and Fiber/Cable Labeling | ||||||
Quality Checks | Bay and Fiber Labeling | 1. Bay/Chassis Labels: PTouch labels in the correct color, font size and format and placed correctly per the Infinera Labeling Standard v1.0?
| ||||
2. Are all fiber and cable labels formatted correctly per the Infinera Labeling Standard v1.0?
| ||||||
3. Are all fiber and cable facing outward and easily readable without twisting or bending the fiber or cable (TE&IG 3.7.35)?
| ||||||
4. Are the power cables and ground lead tagged w/ 145C tags and labeled with Black on Clear PTouch labels at both ends of the cable, in the proper format and size per the Infinera Labeling Standard v1.0 (and TE&IG 3.7.33)?
| ||||||
Overall Requirements | ||||||
Quality Checks | Installation Services | 1. Have the requirements set forth in any applicable Statement of Work been completed?
| ||||
Product Checklist | ||||||
Quality Checks | Product Test and Turn up | 1. Do the Product(s) meet the following testing requirements (as applicable): Infinera DTC Standalone Test and Acceptance; Infinera OTC Standalone Testing and Acceptance; and Infinera End to End Testing and Acceptance? |
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EXHIBIT 6.2 – INTEROPERABILITY STANDARDS
6.2 Resolution. Resolution for three non-interoperability scenarios:
1. | Vendor adheres to defined standards and BTE’s other selected vendors do not adhere to such standards: |
• | BTE’s other selected vendor shall immediately resolve the interoperability problem at their expense. |
2. | Vendor does not adhere to defined standards and the Documentation and other selected vendors adhere to such standards: |
• | Vendor shall immediately resolve the interoperability problem at its expense. |
3. | Vendor and BTE’s other selected vendors are both found to be non-compliant with defined standards and the Documentation, or both are compliant yet still not interoperable. |
• | Vendor agrees to use its reasonable efforts in cooperation with BTE and the other selected vendors to solve the interoperability problem in the most efficient and expedient manner. In the event Vendor and BTE’s other selected vendors fail to reach a resolution in a reasonable amount of time, as determined in BTE’s reasonable discretion, BTE shall determine which party must immediately solve the problem at its own expense. Vendor agrees to abide by BTE’s decision for resolution to the interoperability problem. |
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Exhibit 7.3 – Reference Spans
[**]
64
[**] – Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.
EXHIBIT 12.2 – INSURANCE COVERAGE
Vendor shall procure and at all times thereafter maintain, with insurers acceptable to BTE, the following minimum insurance protecting Vendor, BTE and any other parties required to be protected against liability from damages because of injuries, including death, suffered by persons, including employees of Vendor, and liability from damages to property arising out of or connected with Vendor’ performance of this Agreement.
COVERAGE | LIMITS | |
Commercial General Liability | [**] | |
Comprehensive Automobile Liability (Owned, Hired and Non-Owned Vehicles) | [**] | |
Workers’ Compensation
Employer’s Liability | [**] | |
Errors and Omissions | [**] | |
Product Liability | [**] | |
Excess Liability | [**] |
All such insurance shall be written on an occurrence basis, using ISO Form CG 0001 or the equivalent. BTE and all other parties required to be insured shall be listed as Additional Insureds on Vendor’ policies. Vendor shall provide certificates evidencing such insurance within 10 days of the Effective Date on a form reasonably required by BTE. Such certificates shall provide for 30 days advance written notice to BTE of cancellation, material change, reduction of coverage or non-renewal. Vendor shall cause its authorized subcontractor(s) to procure insurance as outlined above. Vendor shall obtain policies and certificates for its subcontractor(s) and deliver them to BTE. The amounts of any insurance shall in no way be construed as a limitation of liability of Vendor.
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[**] – Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.
FIRST AMENDMENT TO
This First Amendment (the “First Amendment”) is entered into this 19th day of May, 2005 and made pursuant to the Master Acquisition Agreement, dated April 11, 2005, (the “Agreement”) by and between BTE Equipment, LLC, a Delaware limited liability company (“BTE”), with a place of business at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and Infinera Corporation, a Delaware corporation (“Vendor”), with a place of business at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. (Terms capitalized but not defined herein shall have the meaning ascribed to them in the Agreement.)
WHEREAS, Vendor has agreed to direct its efforts to [**] identified by BTE; and
WHEREAS, BTE and Vendor acknowledge that [**] identified in the Agreement; and
WHEREAS, BTE is willing to [**];
1. Pursuant to Exhibit [**], Vendor shall [**], as generally depicted in the drawing attached hereto as Exhibit A. The Parties acknowledge and agree that the [**], (a) placement of the [**] will be limited to the slots shown in Exhibit A; (b) the [**] must be configured as shown in Exhibit A; and (c) [**] will not [**] as part of Release [**].
2. Vendor shall deliver [**]. Vendor acknowledges that in order for BTE to [**], Vendor shall deliver the [**] set forth on the attached Exhibit B (the “[**]”) no later than [**] in accordance with, and subject to, the terms and conditions of Section 5.6 and Exhibit 5.6; and Vendor shall deliver the [**] as set forth in Exhibit C, the Evaluation Agreement.
3. Vendor shall deliver an [**] to BTE on or before [**], which shall then be subject to testing in accordance with Article [**] of the Agreement.
4. The Parties acknowledge and agree that [**]. As a result, the Parties agree that all references in Exhibit [**] shall be replaced with a reference to [**].
5. The Parties acknowledge and agree that if Vendor delivers [**], the [**] and the [**] on or before the respective [**] above [**], then the provisions of [**] and [**], of the Agreement shall have been satisfied by Vendor and shall be of no further force and effect. In particular, the Parties agree that upon the [**], Vendor shall have satisfied [**] for delivery of all [**] and satisfaction of [**].
[**] – Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.
6. The Parties acknowledge and agree that [**] there is [**] Vendor to provide [**] the Agreement. In addition, upon [**], BTE acknowledges and agrees that, with regard to any Product purchased under the Agreement, [**] does not [**] the Product in a [**].
7. [**]; and, therefore agrees that Vendor shall [**], or any other [**].
Except as amended by this First Amendment, all of the original terms and provisions of the Agreement shall continue in full force and effect, and the Agreement, as amended, is hereby ratified and confirmed. In the event of any conflict between the terms of this First Amendment and of the Agreement, the terms of this First Amendment shall govern, and the First Amendment and the Agreement shall be interpreted and applied accordingly.
This First Amendment may be executed in one or more counterparts, all of which, taken together shall constitute one and the same instrument. Facsimile signatures shall be treated as original signatures for the purpose of enforcing this First Amendment. The Parties agree to exchange original signature pages as soon as practicable following exchange of the facsimile signature pages (if that occurs), but the original signatures are not required in order to enforce the First Amendment.
BTE EQUIPMENT, LLC | INFINERA CORPORATION | |||||||||
By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ | By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |||||||
Name: | ▇▇▇▇▇▇ ▇▇▇▇▇ | Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |||||||
Title: | VP Network Architecture | Title: | VP & General Counsel |
[**] – Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.
Exhibit B – [**]
[**]
[**] – Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.
Exhibit C—Evaluation Agreement
This EVALUATION AGREEMENT (the "Agreement") is dated as of , 2005, between Infinera Corporation, a Delaware corporation ("Vendor") and Level 3 Communications, LLC, a Delaware limited liability company ("Level 3"). The parties agree that the following terms and conditions will govern Level 3’s use of the Vendor Evaluation Product during the Evaluation Period, all as defined below.
"Evaluation Product" means the Vendor product(s) listed in Addendum A.
"Evaluation Period" means the period indicated on Addendum A, unless this Agreement is sooner terminated in accordance with Section 6 below.
3. | VENDOR OBLIGATIONS. |
A. Vendor will provide to ▇▇▇▇▇ ▇ the services described on Addendum A during the Evaluation Period. Additional services are available at mutually agreeable rates.
B. Vendor shall be responsible for and bear all expenses relating to the shipment, installation and maintenance of the Evaluation Product at Level 3's site during the Evaluation Period.
C. Vendor shall provide all Vendor Evaluation Product hardware and software components.
4. | LEVEL 3’S OBLIGATIONS. |
A. | Level 3 shall provide one or more sites for Evaluation Product installation. Level 3 shall ensure Vendor personnel reasonably prompt access to Level 3's site and the Evaluation Product for installation, service and support purposes. |
B. | Level 3 shall provide and be responsible for any hardware and software other than the Evaluation Product, unless otherwise agreed by the parties. |
C. | Level 3 shall be responsible to Vendor for the replacement cost of the Evaluation Product in the event of any damage (normal wear and tear excepted) or loss (including theft) to the Evaluation Product while at Level 3's premises due to Level 3's negligence or misconduct. |
5. | RESTRICTIONS. |
A. | Level 3 may make a reasonable number of copies of the Evaluation Product software in machine-readable form for its use in accordance with this Agreement and for backup purposes. |
B. | Level 3 shall not sell, distribute, assign, move or otherwise transfer the Evaluation Product to any third party. Except as expressly set forth herein or otherwise authorized by Vendor, Level 3 shall not use, copy or modify the Evaluation Product. If Level 3 violates the terms of this Section 5(b) (except to a successor in interest of Level 3's business that assumes all of Level 3's obligations with respect to the Evaluation Products), Level 3's rights in the Evaluation Products may be terminated by Vendor. |
C. | Unless Level 3 is entitled to receive the source code format of the Evaluation Product software, under no circumstances may Level 3 attempt to create or permit others to attempt to create, by reverse-compiling or reverse assembling or otherwise, any part of the source programs from the object programs or other information provided to Level 3 by Vendor. |
D. | Level 3 shall reproduce in all copies of the Evaluation Product software made by ▇▇▇▇▇ ▇, and in any adaptations thereof, the copyright notice(s) and proprietary legend(s) of Vendor or its licensors. |
7. | INDEMNITY. |
A. | Vendor shall defend, indemnify and hold harmless Level 3 from and against any and all claims, suits, liabilities, expenses, attorney's fees or damages (collectively "Claims") for any alleged or actual infringement or violation of any copyright, patent or patented right, or other intellectual or proprietary rights arising in connection with this Agreement and any act or omission hereunder; |
B. | Each party shall defend, indemnify and hold harmless the other party from and against any and all Claims respecting property, including loss of use thereof, injuries to persons, including death, and from any other Claims on account of acts or omissions of such party under this Agreement, or any of its subcontractors, suppliers, officers, agents, employees or servants. A party's obligation hereunder shall not be limited by the provisions of any workers’ compensation act or similar statute. |
9. |
agreements, and may only be modified in writing, signed by an authorized representative of each party. This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado. |
LEVEL 3 COMMUNICATIONS, LLC | INFINERA CORPORATION | |
By: | By: | |
Name: | Name: | |
Title: | Title: |
ADDENDUM A
[**]
[**] – Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.
SECOND AMENDMENT TO THE
This Second Amendment (the “Second Amendment”) is entered into this 8th day of August, 2005, and is made pursuant to the Master Acquisition Agreement, dated April 11, 2005, as amended by the First Amendment dated May 19, 2005 (the “Agreement”), by and between BTE Equipment, LLC, a Delaware limited liability company (“BTE”), with a place of business at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and Infinera Corporation, a Delaware corporation (“Vendor”), with a place of business at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. (Terms capitalized but not defined herein shall have the meaning ascribed to them in the Agreement.)
WHEREAS, the Agreement provides that BTE shall have the right to order [**].
WHEREAS, the Parties wish to amend the [**] modules.
1. [**]. BTE hereby acknowledges and agrees that the following [**] have successfully [**]:
[**]
2. Amended Procurement Documents.
The Parties acknowledge and agree that any Procurement Document that is outstanding as of the date of this Second Amendment has been amended to accurately reflect the [**] of [**] by BTE, including the required [**] and [**] and [**]. The Parties further agree that for such outstanding Procurement Documents, the [**] and the [**] to BTE shall be the [**] set forth in the Agreement.
3. Termination of Section [**] of Exhibit [**]. The Parties further agree that Section [**] of Exhibit [**] of the Agreement hereby is deleted in its entirety and Buyer’s [**] with [**] for [**] requiring [**], as provided in Section [**] of Exhibit [**] of the Agreement shall terminate as of the date of this Second Amendment.
[**] – Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.
4. Amended [**]. The Parties hereby agree that the [**] the [**], [**] and the [**] modules as set forth in Section [**] of Exhibit [**] to the Agreement hereby is deleted and replaced in its entirety with the following:
[**]
Except as amended by this Second Amendment, all of the original terms and provisions of the Agreement shall continue in full force and effect, and the Agreement, as amended, is hereby ratified and confirmed. In the event of any conflict between the terms of this Second Amendment and of the Agreement, the terms of this Second Amendment shall govern, and the Second Amendment and the Agreement shall be interpreted and applied accordingly.
[**] – Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.
This Second Amendment may be executed in one or more counterparts, all of which, taken together shall constitute one and the same instrument. Facsimile signatures shall be treated as original signatures for the purpose of enforcing this Second Amendment. The Parties agree to exchange original signature pages as soon as practicable following exchange of the facsimile signature pages (if that occurs), but the original signatures are not required in order to enforce the Second Amendment.
BTE EQUIPMENT, LLC | INFINERA CORPORATION | |||||||
By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ | By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |||||
Name: | ▇▇▇▇ ▇▇▇▇▇▇▇▇ | Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |||||
Title: | VP - T&I GNS | Title: | Vice President & General Counsel |
[**] – Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.
THIRD AMENDMENT TO THE
This Third Amendment (the “Third Amendment”) is entered into this November 15, 2006 and is made pursuant to the Master Acquisition Agreement, dated April 11, 2005, as amended by the First Amendment dated May 19, 2005 and by the Second Amendment dated August 20, 2005 (the “Agreement”), by and between BTE Equipment, LLC, a Delaware limited liability company (“BTE”), with a place of business at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and Infinera Corporation, a Delaware corporation (“Vendor”), with a place of business at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. Terms capitalized but not defined herein shall have the meaning ascribed to them in the Agreement.
1, Amendment to Section 1.2. The second sentence of Section 1.2 of the Agreement which reads:
"Following the initial Term, the Term of this Agreement shall be automatically extended for an unlimited number of one-year periods, commencing on the relevant anniversary of the Effective Date, unless terminated by a party upon no less than sixty (60) days notice prior to such anniversary date, or earlier terminated by a party in accordance with the provisions of this Agreement."
Shall be deleted and replaced in its entirety with the following:
"Following the initial five-year Term, the Term of this Agreement may be extended, for the limited purpose set forth in this Section 1.2, at the option and in the sole discretion of BTE, for a [**] (each such period an "Extension Period"), commencing on the relevant anniversary of the Effective Date, unless BTE provides notice of termination no less than sixty (60) days prior to any such anniversary date, or the Agreement is earlier terminated by a party in accordance with the provisions of herein. Each Extension Period shall be solely for the limited purpose of extending BTE's right to purchase [**]. The Parties agree that effective [**], all other terms and conditions of the Agreement, except as applicable to the expressed purposes set forth herein for each Extension Period, shall terminate and be of no further force and effect."
2. Amendment to Section 5.4. Section 5.4 of the Agreement which reads:
[**]
Shall be deleted and replaced in its entirety with the following:
[**] – Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.
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such training courses and, to the extent mutually agreed, modify its offerings to better meet BTE’s requirements.”
“Vendor represents and warrants to BTE that the Products shall perform on the System in accordance with the Documentation ("Product Performance Warranty") for [**] ("Product Performance Warranty Term") from the date of Acceptance by BTE of such Products.”
Shall be deleted and replaced in its entirety with the following:
“Vendor represents and warrants to BTE that the Equipment shall perform in accordance with the Documentation ("Equipment Performance Warranty") [**] from the [**]. Vendor represents and warrants to BTE that the Software shall perform in accordance with the Documentation ("Software Performance Warranty" and together with "Hardware Performance Warranty" the “Product Performance Warranty”) [**] ("Software Performance Warranty Term") from the [**].”
4. Amendment to Exhibit 1.2. The following sentence shall be added to the end of the definition of "Equipment" in Exhibit 1.2:
"Equipment shall not include any Software licensed under this Agreement."
[**] – Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.
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5. Amendment to Exhibit 2.2.
A. Amended Software Pricing. Section A.1 (“HARDWARE AND SOFTWARE PRICING”) of Exhibit 2.2 shall be amended to remove the following Software pricing:
[**]
And replacing it in its entirety with the following:
[**]
“In accordance with the Commitment, Vendor shall provide Software at no cost to BTE as specified in Procurement Documents submitted by BTE up to [**], based upon the Prices set forth in Section A.1 ("Incentive Software").”
Shall be deleted and the following shall be inserted in lieu thereof:
“In accordance with the Commitment, Vendor shall provide Software at no cost to BTE as specified in Procurement Documents submitted by BTE up [**], based upon the Prices set forth in Section A.1 ("Incentive Software").”
C. [**]. The first two sentences of Section [**] of Exhibit [**] of the Agreement which reads:
“BTE shall have the right to purchase [**] and Vendor will provide the [**] which provides BTE all [**] for the most [**] by Vendor for [**] only be purchased [**] are covered by [**].”
Shall be deleted and the following shall be inserted in lieu thereof:
"BTE shall have the right to purchase [**] and Vendor will provide the [**] which provides BTE all [**] for the [**] for the prices [**]. [**] shall include the [**] and shall include [**] of this Agreement [**] for the applicable [**]."
D. DLM Shipments. The following Section A.6 shall be added to the Agreement:
"A.6 DLM Shipments. Vendor shall [**] for purchase by BTE in each of the [**]. BTE agrees to provide [**] respectively. BTE shall submit Procurement Documents for [**] no later than [**], respectively. Vendor shall ensure that the associated quantities of supporting common Products, [**], shall be available in sufficient quantities as required [**].
E. [**]. Section [**] of Exhibit [**] of the Agreement which reads:
[**]
Shall be deleted and replaced in its entirety with the following:
[**]
[**] – Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.
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6. Amendment to Exhibit 5.4. Exhibit 5.4 of the Agreement shall be deleted and replaced in its entirety with new Exhibit 5.4 attached hereto.
Except as amended by this Third Amendment, all of the original terms and provisions of the Agreement shall continue in full force and effect, and the Agreement, as amended, is hereby ratified and confirmed. In the event of any conflict between the terms of this Third Amendment and of the Agreement, the terms of this Third Amendment shall govern, and the Third Amendment and the Agreement shall be interpreted and applied accordingly.
This Third Amendment may be executed in one or more counterparts, all of which, taken together shall constitute one and the same instrument. Facsimile signatures shall be treated as original signatures for the purpose of enforcing this Third Amendment. The Parties agree to exchange original signature pages as soon as practicable following exchange of the facsimile signature pages (if that occurs), but the original signatures are not required in order to enforce the Third Amendment.
BTE EQUIPMENT, LLC | INFINERA CORPORATION | |||||||||
By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |||||||
Name: | ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |||||||
Title: | VP Network Architecture | Title: | Vice President & General Counsel |
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EXHIBIT 5.4 – TRAINING REQUIREMENTS
Vendor
Training Course Overview
Vendor offers customer-training courses on the Digital Transport Network Product Overview, Turn Up and Test, OAM&P. All of the following courses are based on course training at a location and site reasonably selected by BTE which may include Vendor's facility in Sunnyvale California. Additional costs for travel expenses and time will be added to any training outside of North America (unless otherwise specified in this Agreement) and will be mutually agreed by Vendor and BTE.
[**]
[**] – Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.
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FOURTH AMENDMENT TO THE
This Fourth Amendment (the "Fourth Amendment") is entered into as of February 23, 2007, and is made pursuant to the Master Acquisition Agreement, dated April 11, 2005, as amended by the First Amendment dated May 19, 2005, the Second Amendment dated August 20, 2005, and the Third Amendment dated November 15, 2006 (the "Agreement"), by and between BTE Equipment, LLC, a Delaware limited liability company ("BTE"), with a place of business at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and Infinera Corporation, a Delaware corporation ("Vendor"), with a place of business at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. Terms capitalized but not defined herein shall have the meaning ascribed to them in the Agreement.
1. Amendment to Section 2.7, Discontinuation of Manufacturing. The following sentence is hereby added to the end of Section 2.7:
"Notwithstanding anything in this Agreement to the contrary, except for any discontinuation notices provided prior to the date of this Fourth Amendment and for the remainder of the Term and any Extended Term [**] of this Agreement, Vendor shall not [**]."
Vendor shall submit all invoices to the following address:
[**] – Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission. | 1 | |
Confidential |
BTE Equipment, LLC
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTN: Accounts Payable
Email: ▇▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
or to such other address as may be specified by BTE upon written notice to Vendor. Each invoice must reference the applicable purchase order number or credit card account number, as applicable."
4. Amendment to Exhibit 1.2, Defined Terms. The following definitions are hereby added to Exhibit 1.2:
"Fit" means the suitability or readiness of a Product for a particular application, including environmental extremes, marginal parameters, physical and signal compatibility with interfacing systems and surroundings, level of performance, safety margins, reliability, maintainability and installability.
"Form" means the weight, density, size, shape, structure, protocol, and configuration of a Product.
"Function" means the set of features that the Product has been designed to be used for, in accordance with its Documentation.
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5. Amendment to Exhibit 2.2, Pricing Schedule.
A. Section A.1, Hardware And Software Pricing. Section A.1 ("HARDWARE AND SOFTWARE PRICING") of Exhibit 2.2 is hereby deleted in its entirety and replaced as follows:
"All pricing excludes the cost of shipping, insurance and all applicable governmental fees related to customs, duties, taxes and other such charges, including any applicable VAT charges. Vendor shall offer for sale under the terms of this Agreement the Products set forth in the price list attached hereto as Schedule 1 to this Fourth Amendment ("Price List"). [**]
B. [**]
6. Dispute and Specific Performance. [**]
[**] – Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission. | 3 | |
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BTE EQUIPMENT, LLC | INFINERA CORPORATION | |||||||
By: | /s/ ▇▇▇ ▇▇▇▇▇▇ | By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |||||
Name: | ▇▇▇ ▇▇▇▇▇▇ | Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |||||
Title: | VP, Legal | Title: | Vice President & General Counsel |
[**] – Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission. | 4 | |
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SCHEDULE 1 – PRICE LIST
[**]
[**]
[**] – Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission. | 5 | |
Confidential |