1
* Certain confidential portions of this Exhibit were omitted by means of
blacking out the text (the "Xxxx"). This Exhibit has been filed separately
with the Secretary of the Commission without the Xxxx pursuant to the
Company's Application Requesting Confidential Treatment under Rule 24b-2
under the Securities Exchange Act of 1934.
EXHIBIT 10.4
MASTER PURCHASE AGREEMENT
NUMBER 09-823273
BETWEEN
MCI TELECOMMUNICATIONS CORPORATION
AND
APPLIED DIGITAL ACCESS, INC.
AGREEMENT NUMBER: 09-823273
DATE OF AGREEMENT: June 16, 1997
2
AGREEMENT GENERAL PROVISIONS
ARTICLE 1 -- DEFINITIONS...................................................................1
ARTICLE 2 -- SCOPE OF WORK.................................................................2
ARTICLE 3 -- TERM OF AGREEMENT.............................................................2
ARTICLE 4 -- OPTIONS.......................................................................2
ARTICLE 5 -- PRICES........................................................................2
ARTICLE 6 -- ISSUANCE OF ORDERS............................................................3
ARTICLE 7 -- INVOICING AND PAYMENT.........................................................3
ARTICLE 8 -- DELIVERY......................................................................4
ARTICLE 9 -- ACCESS TO WORK IN PROGRESS AND DATA...........................................4
ARTICLE 10 -- INSPECTION AND TESTS.........................................................4
ARTICLE 11 -- ACCEPTANCE...................................................................4
ARTICLE 12 -- SOFTWARE.....................................................................5
ARTICLE 13 -- WARRANTY REGARDING PROCESSING OF DATES & DATE DEPENDENT DATA.................5
ARTICLE 14 -- TITLE AND ASSUMPTION OF RISK.................................................6
ARTICLE 15 -- EXCUSABLE DELAY..............................................................6
ARTICLE 16 -- DOCUMENTATION................................................................6
ARTICLE 17 -- RIGHTS IN DATA...............................................................7
ARTICLE 18 -- MODIFICATIONS/PROHIBITED USES................................................8
ARTICLE 19 -- PROPRIETARY INFORMATION......................................................9
ARTICLE 20 -- WARRANTIES...................................................................9
ARTICLE 21 -- TECHNICAL SUPPORT...........................................................11
ARTICLE 22 -- AVAILABILITY OF PARTS.......................................................12
ARTICLE 23 -- TRAINING....................................................................12
ARTICLE 24 -- CHANGES.....................................................................12
ARTICLE 25 -- CHANGES TO FORM, FIT, OR FUNCTION...........................................13
ARTICLE 26 -- INSURANCE...................................................................13
ARTICLE 27 -- INDEMNIFICATION.............................................................15
ARTICLE 28 -- PATENT RIGHTS...............................................................15
ARTICLE 29 -- PATENT INDEMNITY............................................................15
ARTICLE 30 -- LIENS.......................................................................16
ARTICLE 31 -- TERMINATION FOR CONVENIENCE.................................................17
ARTICLE 32 -- TERMINATION FOR DEFAULT.....................................................18
ARTICLE 33 -- ASSIGNMENT..................................................................19
ARTICLE 34 -- CONSEQUENTIAL DAMAGES.......................................................19
August 11, 1997 MCI PROPRIETARY AND CONFIDENTIAL Page i
3
ARTICLE 35 -- ARBITRATION / DISPUTE RESOLUTION............................................19
ARTICLE 36 -- MCI'S PROPERTY..............................................................20
ARTICLE 37 -- MCI'S RESPONSIBILITY........................................................20
ARTICLE 38 -- ADA'S RESPONSIBILITY........................................................20
ARTICLE 39 -- REQUIREMENTS FOR BAR CODING.................................................20
ARTICLE 40 -- PERMITS AND LICENSES........................................................20
ARTICLE 41 -- LABOR.......................................................................21
ARTICLE 42 -- TRADE NAMES, TRADEMARKS AND TRADE DRESS.....................................21
ARTICLE 43 -- PUBLIC RELEASE OF INFORMATION...............................................21
ARTICLE 44 -- NOTICES.....................................................................21
ARTICLE 45 -- ORDER OF PRECEDENCE.........................................................22
ARTICLE 46 -- APPLICABLE LAW..............................................................22
ARTICLE 47 -- GENERAL.....................................................................22
ARTICLE 48 -- EXAMINATION AND ENTIRETY OF AGREEMENT.......................................23
ARTICLE 49 -- MISCELLANEOUS...............................................................23
EXHIBITS
EXHIBIT A DISCOUNT AND PRICE SCHEDULE......................................................A1
EXHIBIT B APPLIED DIGITAL ACCESS LIST PRICES BY PRODUCT NUMBER LISTING.....................B1
EXHIBIT C MCI ALLIANCE PARTNERS............................................................C1
EXHIBIT D SOFTWARE MAINTENCE PLAN..........................................................D1
EXHIBIT E PRODUCT CHANGE NOTICES...........................................................E1
EXHIBIT F TRAINING COURSES.................................................................F1
August 11, 1997 MCI PROPRIETARY AND CONFIDENTIAL Page ii
4
MASTER PURCHASE AGREEMENT
This Master Purchase Agreement is made and entered into this 16th day of June
(hereinafter referred to as the "Effective Date of Agreement") by and between
APPLIED DIGITAL ACCESS, INCORPORATED (hereinafter referred to as "ADA") a
California corporation with principal offices at 0000 Xxxxxxxx Xxxx, Xxx Xxxxx,
XX 00000 and MCI TELECOMMUNICATIONS CORPORATION, (hereinafter referred to as
"MCI") with offices at 0000 Xxxxxxxx Xxxx., Xxxxxxxxxx, Xxxxx 00000.
WHEREAS, MCI desires to purchase and license from ADA certain ADA
telecommunications hardware and software, related services, materials and
equipment, and such other optional equipment and services as MCI may elect to
acquire pursuant to this Agreement (hereinafter, the "Products"); and
WHEREAS, ADA desires to sell, license, and otherwise provide to MCI, the
Products including services which MCI may elect to obtain pursuant to this
Agreement;
NOW, THEREFORE, in consideration of the mutual agreements and promises contained
herein, the Parties mutually agree as follows:
ARTICLE 1 - DEFINITIONS
The term "Agreement" includes these terms and conditions, specifications,
drawings, documents and addendum made a part of this Agreement, or incorporated
herein by reference; and any amendments to this Agreement.
The term "MCI" means MCI Telecommunications Corporation, its employees,
directors, subsidiaries, affiliates, successors and assigns, and for purposes of
this agreement, includes Alliance Partners. "Affiliates" means MCI's operating
entities, controlling, controlled by, or under common control with MCI
including, but not limited to, networkMCI, Inc., MCImetro Access Transmission
Services, Inc., MCI International Telecommunications Corporation, and MCImetro,
Inc. The term "Alliance Partner" shall mean any person or legal entity: (a) in
which MCI has an equity ownership, or which conversely has an equity ownership
in MCI, in excess of twenty (20) percent, or (b) with which MCI has an agreement
requiring or permitting (i) the large-scale licensing of technology to such
person or entity or (ii) the exclusive distribution of one or more products or
services by such person or entity, and which in any event is listed from time to
time during the term of this Agreement on Exhibit C ("MCI Alliance Partners")
attached hereto and incorporated herein by this reference.
The term "Parties" refers to ADA and MCI.
The term "Patent" means patents for inventions and similar forms of statutory
protection, domestic or foreign, such as utility models and registered designs.
The term "Delivery" means the tendering of the Work called for by this Agreement
by ADA at the MCI designated site, at the time(s) and place(s) specified in the
Article of this Agreement entitled "Delivery."
The term "Work" refers to the provision of goods, components, Products,
Services, documents, software, data, or other items constituting the subject
matter of this Agreement which are to be furnished by ADA to MCI.
August 11, 1997 MCI PROPRIETARY AND CONFIDENTIAL Page 1
5
The term "Documentation" shall mean all or any portion of user guides, operator
guides, installation manuals and other associated manuals furnished with the
Products as updated from time to time.
The term "Software" shall mean the tangible form, including without limitation,
the media and documentation in machine readable or printed form, and the
intangible interests therein.
The term "Enhancements" shall mean modifications, changes, additions to and
deletions from the Product provided by ADA.
The term "Version" shall mean the issuance of new Software to the Product
providing additional material feature/function capabilities and Enhancements
which are definable and measurable by ADA.
The term "Modification" means to change, alter, incorporate, enhance, upgrade or
revise any Work, including Product firmware and/or software, which affects the
form, fit, function, interface, interchangeability, substitutability, electrical
performance capability, safety or reliability of the Product or which deviates
from Work approved for use by MCI's Network Engineering Laboratory.
ARTICLE 2 - SCOPE OF WORK
ADA shall provide the necessary qualified personnel, facilities, and Products
including services to perform the Work in accordance with the Purchase Orders
issued and accepted in accordance with this Agreement. MCI shall have the
unilateral right to reject any personnel provided under this Agreement upon
demonstration by MCI of reasonable cause.
ARTICLE 3 - TERM OF AGREEMENT
The provisions of this Agreement shall be applicable to all Products purchased
and/or leased by MCI from the Effective Date of Agreement through June 16, 2000
unless extended or terminated prior to this date in accordance with the
provisions of this Agreement.
ARTICLE 4 - OPTIONS
At the request of MCI and upon the mutual written agreement of the Parties, the
terms of this Agreement may be extended for up to ***** (*) successive periods
of *** (*) year (each an "Extension Period") upon these same terms and
conditions; provided, however, that either Party may request an adjustment in
the pricing of the Products, and in such an event such pricing during the
Extension Period shall be subject to mutual agreement in writing between the
Parties; further provided, if the Parties fail to agree upon a requested
adjustment in pricing this Agreement will not be extended further and will
expire at the end of the current Extension Period.
ARTICLE 5 - PRICES
The prices set forth in Exhibit A and Exhibit B are exclusive of all taxes,
duties and similar liabilities whatsoever, except as noted below. All charges
for non-standard packaging, packing, crating and for shipping deliverable items
to destinations designated by MCI shall be prepaid and added to the invoices.
Unless otherwise agreed by the Parties, all prices quoted are payable in U.S.
funds and shall be exclusive of taxes (including without limitation any added
value, use, sales, or similar tax). MCI shall pay any and all such taxes and
shall hold ADA harmless therefrom, provided that if ADA, at its sole discretion,
* Certain confidential portions of this Exhibit were omitted by means of
blacking out the text (the "Xxxx"). This Exhibit has been filed separately
with the Secretary of the Commission without the Xxxx pursuant to the
Company's Application Requesting Confidential Treatment under Rule 24b-2
under the Securities Exchange Act of 1934.
August 11, 1997 MCI PROPRIETARY AND CONFIDENTIAL Page 2
6
chooses to make any such payment, MCI shall reimburse ADA in full. All
transactions pursuant to this Agreement shall be considered taxable unless MCI
provides ADA with appropriate verification of exemption. All prices quoted shall
likewise be exclusive of any import duties imposed by the country of final
destination upon shipments from ADA to MCI.
ADA represents and warrants, during the term of this Agreement, that the prices
set forth in Exhibit A and Exhibit B shall be no higher than the current XXX
xxxxx to any other customer for the same quantity of such Work under like
conditions. ADA further agrees that in the event prices for the same quantity of
such Work under like conditions are lowered, ADA shall notify MCI in writing of
the new prices no later than thirty (30) days before they are to take effect,
and Exhibit A and Exhibit B shall be adjusted by written amendment provided that
any amounts previously paid to ADA shall be non-refundable and non-creditable.
ADA may sell to MCI at prices lower than those cited herein on a case-by-case
basis, and such sales shall not have the effect of lowering the prices generally
offered under this Agreement. ADA shall notify MCI in writing of the prices and
terms and conditions for this case-by-case Work.
ARTICLE 6 - ISSUANCE OF ORDERS
The purchase of Work shall be by means of individual purchase orders, including
change orders thereto, and delivery release orders (hereinafter referred to
collectively as "Orders") which may be issued from time to time to ADA by MCI.
Each Order shall specify the Products, quantity, price, delivery date,
destination, and other details pertaining to the Products ordered thereunder.
ADA understands and agrees that unless otherwise stated in the Order, this
Agreement shall be applicable to such Order for equipment and/or services,
whether or not this Agreement is expressly referred to in such Orders.
In the event of any conflict as to the terms and conditions between the
pre-printed terms of the Order and this Agreement, this Agreement shall take
precedence. Within thirty (30) days of receipt of the Order, ADA shall
acknowledge acceptance or rejection of the Order. In the absence of such Order
acknowledgment the Order shall be deemed to be accepted by ADA.
Neither MCI nor any MCI Affiliate or Alliance Partner ("Ordering Entity") shall
be liable for, or in relation to, any Order not placed by it. Further, neither
MCI, nor any other Ordering Entity shall be liable for any act or omission of
any other Ordering Entity whether in relation to this Agreement, any Order or
otherwise. Any Ordering Entities placing Orders under this Agreement are
separately and individually liable for anything pertaining to such Order(s).
ARTICLE 7 - INVOICING AND PAYMENT
ADA shall submit original invoices to the MCI Accounts Payable department
identified on the applicable Order stating the amounts due. The applicable
amounts due ADA shall be paid within thirty (30) days net in United States
dollars after receipt of an invoice, provided that the Work that is the subject
of the invoice has been delivered and/or completed and accepted in accordance
with the requirements of this Agreement, and that all conditions established
hereunder as prerequisites to payment have been fulfilled.
August 11, 1997 MCI PROPRIETARY AND CONFIDENTIAL Page 3
7
ARTICLE 7 - DELIVERY
ADA shall make deliveries both in quantities and at times specified herein and
in the applicable Orders. ADA shall deliver the Products to MCI Free on Board
(FOB) origin, and in the absence of other shipping instructions, ADA will ship
"surface prepaid." If Orders are received specifying order intervals of less
than thirty (30) days, ADA will use commercially reasonable efforts to meet such
dates and may apply an expedite charge to orders requiring fulfillment in less
than five (5) business days such expedite charges shall be pre-approved by MCI.
Except as provided above, if ADA deliveries exceed the delivery date, MCI,
without limiting its other rights or remedies as specified herein, may direct
expedited routing and ADA shall pay for any excess costs incurred thereby. MCI
shall not be liable for ADA's commitments or production arrangements in excess
of the amount, or in advance of the time, necessary to meet MCI's delivery
schedule. Products which ADA delivers more than fourteen (14) days in advance of
schedule may, at MCI's option, either (a) be returned at ADA's expense for
proper delivery, (b) have payment therefor withheld by MCI until the date that
Products are actually scheduled for delivery or (c) be placed in storage on
ADA's account until the delivery date specified herein. MCI may delay, at no
cost to MCI, the delivery and invoicing of Products for a period of up to thirty
(30) days; provided, however, that MCI notifies ADA in writing at least fifteen
(15) days prior to the scheduled delivery date. Delay(s) beyond thirty (30) days
shall be deemed a change in accordance with the Article of this Agreement
entitled CHANGES.
ARTICLE 9 - ACCESS TO WORK IN PROGRESS AND DATA
All Work in progress under this Agreement and all data and documentation related
to this Agreement are subject to continuous examination, evaluation and
inspection by MCI at any reasonable time during the term of this Agreement.
Thereafter, to the extent that such data and documentation is of a type normally
retained by ADA, it shall continue to be available for such purposes, without
affecting ADA's obligations under other provisions of this Agreement, and
subject to ADA's rights in data under the Article of this Agreement entitled
RIGHTS IN DATA. ADA shall also deliver copies of all such data and documentation
to MCI upon written request of MCI at any time during the term of this
Agreement.
ARTICLE 10 - INSPECTION AND TESTS
Inspections may be made at all reasonable times by MCI or its designated
representative(s) at ADA's manufacturing facilities or at the MCI or ADA site
designated for product staging, as described hereinafter. Travel and living
expenses and other incidental expenses will be borne by each Party that incurs
such expenses. Remedy of the non-conforming Products referred to in this Article
shall be made promptly by ADA, at its expense, upon receipt of written notice
thereof from MCI. If ADA fails to so remedy any such non-conforming Product(s),
MCI may either (a) have any or all such non-conforming Product(s) remedied
through other means, in which event ADA shall pay the reasonable costs of so
remedying such non-conforming Product(s); or (b) accept the non-conforming
Products and reduce the applicable price by the cost to remedy the Product.
ARTICLE 11 - ACCEPTANCE
After receipt at destination, MCI shall promptly inspect the Products received
and accept them. If within ten (10) business days after such inspection a
Warranty defect is found, MCI shall notify ADA in writing of those rejected
Product(s). Remedy of rejected items shall be promptly made by ADA at its
expense, which shall include all related costs for repair or replacement of the
rejected Product(s) in accordance
August 11, 1997 MCI PROPRIETARY AND CONFIDENTIAL Page 4
8
with Article 18, WARRANTIES, and all applicable shipping changes. Upon remedy of
such rejected Product(s) in accordance with this Agreement, the Products shall
be accepted by MCI.
If ADA fails to remedy any such rejected item(s), MCI may elect either (i) to
have any or all such rejected item(s) remedied through other means, in which
event ADA shall pay the reasonable costs of so remedying such rejected item(s);
or (ii) to accept the Work and reduce the applicable price by an equitable
amount.
ARTICLE 12 - SOFTWARE
The price of Software ordered hereunder shall include, with respect to each copy
of Software covered by this Agreement, a perpetual, royalty-free, non-exclusive,
non-sublicensable license, subject to all the terms and conditions of this
Agreement, to use the initial feature release of the software delivered. These
license terms shall also extend to all future Software Versions and Enhancements
which are issued during the applicable Software Warranty period or provided
pursuant to a Software Maintenance plan, as described in Exhibit D. Software
that MCI develops independent of ADA or any MCI Software shall remain the
property of MCI. MCI understands that any modification of ADA's software without
ADA's consent shall vitiate ADA's maintenance responsibilities described in the
paragraph below.
Software is licensed hereunder and not sold. As between the Parties, ADA retains
and shall exclusively own all title to and, except as expressly and
unambiguously licensed herein, all rights and interests in the Software
delivered by ADA hereunder, all modifications and derivative works (by whomever
produced) thereof and all intellectual property and proprietary rights anywhere
in the world.
New product feature releases shall not be included under MCI's initial license
but shall be available to MCI at charges mutually agreed upon. Provided that MCI
subscribes to ADA's applicable Software Maintenance plan, ADA shall maintain all
software required to operate the Software for a period of up to *** (**) years
after the Effective Date of Agreement. Such software maintenance shall include
updates or changes which reflect operational or efficiency changes, as well as,
the development and delivery of new loads as released by ADA.
In the event that ADA files for protection under the provision of the Bankruptcy
Code, MCI and ADA agree that under Section17 U.S.C., particularly Section 117
(Federal Copyright Act), that MCI has the non-exclusive, limited right to use
the Software for the provision of MCI's services, including the right to prepare
copies for archive or back-up purposes.
MCI may sell, transfer or dispose of its rights under this Article to any
subsequent buyer of Products; such disposition shall be limited to the scope of
the Software license normally provided by ADA for Products purchased hereunder.
MCI may not sell, transfer or dispose of Products, with the rights under this
Article, to competitors of ADA.
ARTICLE 13 - WARRANTY REGARDING PROCESSING OF DATES & DATE DEPENDENT DATA
The licensed Software will provide accurate processing of date and date
dependent data (including, but not limited to, calculating, comparing and
sequencing operations) for all dates through the year 2100 and otherwise comply
with the certificate requirements for ISO 8601 standards for year 2000 date
compliance, and that upon request ADA will provide sufficient evidence through
adequate testing of the Software or otherwise to demonstrate compliance with
this Warranty.
* Certain confidential portions of this Exhibit were omitted by means of
blacking out the text (the "Xxxx"). This Exhibit has been filed separately
with the Secretary of the Commission without the Xxxx pursuant to the
Company's Application Requesting Confidential Treatment under Rule 24b-2
under the Securities Exchange Act of 1934.
August 11, 1997 MCI PROPRIETARY AND CONFIDENTIAL Page 5
9
ARTICLE 14 - TITLE AND ASSUMPTION OF RISK
ADA shall convey good title, free from any claim or encumbrance, to MCI for all
Products delivered under this Agreement. Title to all such Products excluding
Software shall pass to MCI at the shipping point. Any loss or damage to such
Products prior to passing of title shall be at ADA's risk.
ARTICLE 15 - EXCUSABLE DELAY
In the event performance of this Agreement, or of any obligation hereunder, is
prevented, restricted or interfered with by reason of:
a) acts of God;
b) wars, revolution, civil commotion, acts of public enemies, blockage
or embargo;
c) acts of Government in its sovereign capacity;
d) labor difficulties, including, without limitation, strikes,
slowdown, picketing or boycotts; or
e) any other external circumstances beyond the reasonable control of
the Party affected.
The Party affected, upon giving prompt notice to the other Party, but in no
event to exceed more than twenty (20) days after either learning of such event
or after the date when such party should have known of such event, shall be
excused from such performance on a day-to-day basis to the extent of such
prevention, restriction, or interference (and the other Party shall likewise be
excused from performance of its obligations on a day-to-day basis to the extent
such Party's obligations related to the performance so prevented, restricted or
interfered with); provided, however, that the Party so affected shall use its
best efforts to avoid or remove such causes of non-performance and both Parties
shall proceed whenever such causes are removed or cease.
ARTICLE 16 - DOCUMENTATION
ADA shall supply MCI with originals of all documentation necessary to support
and maintain the equipment and systems provided by ADA to MCI under this
Agreement. ADA grants MCI a limited rights license, subject to all the terms and
conditions of this Agreement, to MCI at no charge to reproduce this
documentation in quantities required for this Agreement provided that all
reproduced copies include all ADA copyrights and other proprietary marks and
legends. MCI will take all reasonable precautions to insure that any
documentation reproduced under the limited rights licenses will be used
exclusively by MCI. Other documentation which may be provided pursuant to this
Article at the request of MCI shall include:
a) INSTALLATION, OPERATION AND MAINTENANCE (IOM) MANUALS --
Installation, operation and maintenance manuals, including packing
and unpacking instructions, general descriptions, tables of
specifications, theory of operation, installation procedures,
maintenance procedures, trouble-shooting procedures and parts list.
b) ENGINEERING DOCUMENTATION -- Non-proprietary specifications,
functional descriptions and operating descriptions.
c) ACCEPTANCE TEST PLAN/PROCEDURE -- This documentation shall be
sufficiently comprehensive to ensure that acceptance testing is
capable of determining whether the Products comply with the
requirements of this Agreement. ADA shall develop jointly with MCI
such test plans to include at a minimum:
August 11, 1997 MCI PROPRIETARY AND CONFIDENTIAL Page 6
10
i) Reference to specification
ii) List of the test equipment to be used
iii) Environmental conditions
iv) Initial condition of item being tested, (e.g. profile, switch
position, etc.)
v) Brief description of each test, in the sequence they are to be
performed including a list of parameters to be measured.
vi) Block diagrams of the testing setups
vii) Failure reporting, correction and analysis requirements
a) FACTORY TEST PLAN -- This plan shall be sufficiently comprehensive
to ensure that factory testing is capable of determining whether,
upon shipment to MCI, the Products comply with the requirements of
this Agreement.
b) QUALITY ASSURANCE DOCUMENTATION -- This document shall describe the
Quality Assurance Program of ADA.
c) PRODUCT SUPPORT DOCUMENTATION -- This documentation shall include
all the information necessary to support and maintain the continued
operation of Products delivered by ADA. This shall include, but not
be limited to, the following:
iv) Recommended Spare Parts List -- ADA shall submit a complete
list of Field Replaceable Unit (FRU) assemblies, sub-
assemblies, parts and consumable recommended to support
production equipment for a period of ****** (**) months. The
list shall include part name, manufacturer's name and address,
part number, MTBF (Mean Time Between Failures), lead-time,
availability. For purposes of this Agreement, FRUs are defined
as: Primary components, assemblies or sub-assemblies such as
drawers, cards, boards and power units which, in the event of
failure, must be replaced in the field by field service
personnel in order to ensure continued equipment operation. In
addition, ADA shall submit a recommended depot level sparing
list.
v) Provisioning Documentation
ARTICLE 17 - RIGHTS IN DATA
Written documentation, provided by ADA, which is required to be delivered under
this Agreement shall be the same documentation as provided to other customers
and shall become the property of MCI and shall not be disclosed by MCI to any
other Party, and MCI shall have the right to use the information contained
therein for the purpose of this Agreement.
MCI shall protect any written documentation, which ADA has marked with an
appropriate and valid proprietary legend, such as "ADA Confidential," from
unauthorized use or disclosure to any person who is not a director, officer,
employee, agent, contractor, or affiliate of MCI, and, at a minimum, use such
measures as MCI uses to protect its own confidential information; provided,
however, that MCI shall have the right to use and duplicate such written
documentation together with applicable copyright notices for any MCI purpose
consistent with this Agreement.
* Certain confidential portions of this Exhibit were omitted by means of
blacking out the text (the "Xxxx"). This Exhibit has been filed separately
with the Secretary of the Commission without the Xxxx pursuant to the
Company's Application Requesting Confidential Treatment under Rule 24b-2
under the Securities Exchange Act of 1934.
August 11, 1997 MCI PROPRIETARY AND CONFIDENTIAL Page 7
11
ARTICLE 18 - MODIFICATIONS/PROHIBITED USES
MCI shall have the right to request ADA to make Modifications to the Product(s)
to perform any functions which MCI deems desirable and the Product(s) so
modified shall remain subject to the terms of this Agreement. In such event, MCI
shall request ADA to submit a proposal for such Modifications to the Product and
provide an estimate for such Modifications and implementation thereof within
thirty (30) days after receipt of the MCI's request. ADA shall implement such
Modifications only upon receipt of written authorization from MCI Procurement at
0000 Xxxxxxxx Xxxx., Xxxxxxxxxx, XX 00000, Attn: Director of Procurement.
Notwithstanding of the above, if XXX xxxxx the capability or resources to
develop and implement the requested Modifications, the Parties agree to
negotiate in good faith an appropriate license permitting MCI to develop or have
developed the requested Modification.
MCI agrees not to translate, decompile, dissemble or reverse engineer the
Product(s) or otherwise attempt to alter, adapt or discover the source code of
the Product(s) by any means whatsoever or permit another to do so.
Further, MCI may not:
a) Provide, rent, lease, lend, use for timesharing or service bureau
purposes, sell, network (except as expressly contemplated herein),
transfer, or otherwise distribute or allow others to use the
Product(s), or any copy or portion thereof, or MCI's rights under
this Agreement on a temporary or permanent basis to or for the
benefit of anther person or entity without the prior written
permission of ADA;
b) Modify, incorporate into or with other software or create a
derivative work based upon any part to the Product(s) or attempt or
permit a third party to do so, except to the limited extent that
such actions do not affect the form or function of the Product(s)
provided that foregoing shall not restrict MCI from using standard
application programming interface, hereinafter referred to as API,
as necessary to permit interoperability of the Product(s) with
other applications;
c) Make any copies of the Product(s) or distribute any materials other
than for MCI's (excluding any affiliates which function as
telecommunications equipment suppliers) own internal use, except as
reasonably required to use the Product(s) strictly in accordance
with the license granted hereunder or as otherwise required by law
or applicable industry regulation and, except for one (1) copy
solely for archival and back-up purposes;
d) Remove, modify, or obscure the copyright, trademark, and/or any
other propriety notices or legends contained in the Product(s) or
affixed on the Documentation or Product(s) media or packaging;
e) Export, re-export, or transfer, directly or indirectly, the
Product(s), or any portion thereof, from the country in which is it
originally delivered to MCI in violation of any law, restriction,
national security control or regulation or without all required
licenses and authorizations to Cuba, Libya, North Korea, Iran,
Iraq, or Rwanda, or to any Group D:1 or E:2 country (or any
national of such country) specified in the then current supplement
No. 1 to Part 740 to the U. S. Export Administration Regulations
(or any successor supplement or regulations). This paragraph shall
survive termination of this Agreement; and
f) Use a portion or component of the Product(s) in a manner other than
as specified in the "T3AS User Manual," and "T3AS Installation &
Engineering Manual"; and
g) Disclose the results of any benchmark of the Product(s) to any
third party without the prior written authorization of ADA.
August 11, 1997 MCI PROPRIETARY AND CONFIDENTIAL Page 8
12
ARTICLE 19 - PROPRIETARY INFORMATION
Each Party agrees that with respect to any oral, written or computer generated
information supplied or disclosed by either Party to the other Party under this
Agreement and identified by the disclosing Party as confidential or proprietary
(hereinafter referred to as "Confidential Information"):
a) To use such Confidential Information only in performance of this
Agreement;
b) Not to make copies of any such Confidential Information or any part
thereof without the permission of the disclosing Party;
c) Not to disclose any such Confidential Information or any part
thereof to others for any purpose without prior written approval
from the disclosing Party;
d) To limit dissemination of such Confidential Information to persons
within the receiving Party's organization, including contractors
and consultants who are bound to protect Confidential Information
under the terms of a written agreement, who are directly involved
in the performance of this Agreement and have a need to use such
Confidential Information for purposes of such performance; and
e) To return such Confidential Information and any copies thereof to
the disclosing Party at the completion or termination of this
Agreement, or at such earlier date as the Parties may agree in
writing.
Notwithstanding the foregoing, neither Party shall have any obligation with
respect to any information which is: (i) previously known to the receiving
Party, (ii) invalidly marked, (iii) in or becomes in the public domain through
no fault of the receiving Party, (iv) rightfully acquired by the receiving Party
from third parties, (v) independently developed by the receiving Party without
reference to Confidential Information, (vi) approved for release by the written
authorization of the disclosing party, or (vii) identified by the disclosing
Party as no longer confidential.
Upon the execution of this Agreement, the Non-Disclosure Agreement between the
Parties dated June 10, 1996 shall terminate and all Confidential Information
previously disclosed under said agreement shall thereafter be governed by the
provisions of this Agreement. The provisions of this Article shall survive the
termination or expiration of this Agreement for a period of **** (*) years
thereafter.
ARTICLE 20 - WARRANTIES
ADA warrants the following with respect to each of its Hardware Products that
the Hardware Product is free from defects in material and workmanship, and that
upon payment in full all Hardware Product shall be delivered free and clear of
liens, claims or encumbrances of any kind. ADA warrants that the Product(s) will
conform to and perform in accordance with the specifications set forth in this
Agreement for a period of ************ (**) months commencing with the date of
shipment to MCI.
With respect to Products sold but not manufactured by ADA, ADA will assign to
MCI all warranties allowed by the manufacturer.
If ADA installs the Hardware Product, ADA will warrant the installation against
defects in material and workmanship for a period of ****** (**) days from the
date of installation and provide all parts and on-site labor (including
transportation costs of ADA's technician(s)) necessary to restore the Hardware
Product to proper operating condition at no charge to MCI. The warranty period
for repair parts and
* Certain confidential portions of this Exhibit were omitted by means of
blacking out the text (the "Xxxx"). This Exhibit has been filed separately
with the Secretary of the Commission without the Xxxx pursuant to the
Company's Application Requesting Confidential Treatment under Rule 24b-2
under the Securities Exchange Act of 1934.
August 11, 1997 MCI PROPRIETARY AND CONFIDENTIAL Page 9
13
labor and for replaced Products shall be the remainder of
the warranty for the repaired or replaced item or ****** (**) days, whichever is
greater.
ADA warrants and represents that the Software media delivered hereunder is free
from material defects and the Product will operate substantially in accordance
with the Documentation provided with the Product for ****** (**) months
following installation (herein referred to as "Software Warranty Period"). Once
the Software Warranty Period has expired, MCI may request ADA continue
maintenance in accordance with Exhibit D entitled SOFTWARE MAINTENCE PLAN.
If at any time within the Software Warranty Period, the Product is considered by
MCI to not be in conformance with this Warranty, MCI shall promptly notify ADA
of such alleged non-conformance. ADA shall respond as required in the Article
entitled ACCEPTANCE.
THE WARRANTIES SET FORTH ABOVE ARE THE COMPLETE WARRANTY COVERAGE OFFERED BY ADA
FOR THE HARDWARE AND SOFTWARE PRODUCTS AND SERVICES PROVIDED HEREUNDER AND ARE
IN LIEU OF ALL OTHER WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF
MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. NOTWITHSTANDING ANY OTHER
OR PRIOR STATEMENT, WRITTEN OR ORAL, ADA MAKES NO OTHER WARRANTIES, EXPRESS OR
IMPLIED, REGARDING THE QUALITY, MERCHANTABILITY, FITNESS, OR THE USE OR DATA
RESULTS BY THE USE OF THE PRODUCT(S).
Except as specifically provided under the above paragraph in this section, ADA's
liability under warranty shall be limited to either repair or replacement of the
defective Product in accordance with the Repair and Return Procedures described
elsewhere herein or, if repair or replacement is not reasonable, refund of the
purchase price for the effected Product(s). ADA shall incur no obligation under
this warranty if (i) the allegedly defective Product is returned to ADA more
than thirty (30) days after the expiration of the applicable warranty period
(provided, however, that notice of a defect that was caused by ADA's fraud or
such gross mistakes by ADA as amount to fraud may be given at any time), or if
(ii) ADA's verifiable tests disclose that the alleged defect is not due to
defects in material or workmanship.
The Warranty set forth in above of this Article does not extend to any Product
that (i) is modified or altered, (ii) is not maintained by ADA's maintenance
recommendations, (iii) is operated in a manner other than that specified by ADA,
(iv) has its serial number removed or altered or (v) is treated with abuse,
negligence or other improper treatment (including, without limitation, use
outside the recommended environment). MCI's sole remedy with respect to any
Product warranty or defect is as stated in this Article.
ADA Products are intended for standard commercial uses. Without appropriate
network design engineering, they should not be used (or sold, licensed or
distributed for use) in hazardous environments requiring fail safe performance
in which the failure of Products could lead directly to death, personal injury,
or severe physical or environmental damage; such environments include, without
limitation, the operation of nuclear facilities, aircraft
navigation/communication systems, air traffic control, direct life support
machines, or weapons systems. MCI agrees to consult with ADA prior to using the
Products (or selling, licensing, or distributing them for use) in such
environments so that ADA may review the proposed network design and recommend
appropriate system redundancies or design modifications. Any use, sale, license
or other distribution of the Products in any such environment without the prior
written consent of ADA, shall be deemed at MCI's sole risk.
* Certain confidential portions of this Exhibit were omitted by means of
blacking out the text (the "Xxxx"). This Exhibit has been filed separately
with the Secretary of the Commission without the Xxxx pursuant to the
Company's Application Requesting Confidential Treatment under Rule 24b-2
under the Securities Exchange Act of 1934.
August 11, 1997 MCI PROPRIETARY AND CONFIDENTIAL Page 10
14
ARTICLE 21 - TECHNICAL SUPPORT
ADA shall maintain for the term of this Agreement a Technical Support Center
(hereinafter referred to as "TSC") to provide support services as described
below.
ADA shall make TSC services available, starting Effective Date of Agreement, to
MCI five (5) days per week, Monday through Friday, 8:00 A.M. to 8:00 P.M. EST.
Upon receipt of a request from MCI via telephone, or other form, for TSC
services, ADA shall provide the requested services via telephone on an immediate
response basis.
ADA support services shall include, but not be limited to, the following items:
a) TECHNICAL SUPPORT CALL-IN -- Technical support staff personnel are
available to assist in quick and easy resolutions of problems that
occur in the installation or use of ADA's Equipment. This service
is provided at no charge to MCI.
b) FIELD SERVICE ENGINEERING -- Field Service Engineers are available
to provide on-site installation assistance, installation checkouts,
trouble-shooting, field repair, routine maintenance or training on
installation operation and maintenance. Based upon mutual agreement
that a charge for field service is necessary, the charge to MCI
shall be in accordance with ADA's then existing rates.
c) INSTALLATION OF NEW PRODUCTS -- During the installation period of
new Products, ADA will guarantee immediate response on the turn
around of defective equipment.
d) REPAIR -- MCI shall contact ADA's personnel on the return of
Products for in or out of warranty repair or concerning status of
any repair service being performed. The following procedure shall
cover the repair of equipment returned to ADA for repair:
i) MCI must obtain ADA's Return Material Authorization (RMA)
Number prior to the return of any Products. A block of RMA
Numbers will be issued by ADA for MCI's Distribution
Center(s).
ii) In Warranty Products -- Ship via ADA designated carrier
instructed to be used upon obtaining the RMA Number, if
applicable. MCI is responsible for transportation charges from
Product(s) shipped to ADA; ADA is responsible for return
shipment to MCI. ADA will either repair or replace in warranty
Products within fifteen (15) business days of its receipt. The
warranty period for repaired or replaced Products shall be the
remainder or the original warranty or ninety (90) days, which
ever is greater.
iii) Out of Warranty Products -- ADA, on receipt of an Order from
MCI, is responsible for return shipment to MCI; MCI is
responsible for transportation charges of Product(s) shipped
to ADA.
iv) MCI shall furnish the following information with material
returned to ADA for repair: (a) MCI's name and complete
address; and (b) name(s) and telephone number(s) of MCI's
employee(s) to contact in case of questions about the Products
to be repaired; (c) ship to address for return of repaired
Products if different from (a); (d) a complete list of
Products and quantity of each returned; (e) the nature of the
defect or failure, if
August 11, 1997 MCI PROPRIETARY AND CONFIDENTIAL Page 11
15
known; (g) ADA's (RMA) Number; and (h) Order number to cover
repair charges if out of warranty.
v) ADA will either repair or replace defective Products not
covered under warranty within fifteen (15) working days from
receipt. The warranty on Serviced Products is ****** (**) days
measured from date of service.
vi) If Products are returned to ADA for repair as provided for in
this section, and are determined to be beyond repair, or
repair costs are expected to exceed the cost of a replacement,
ADA shall so notify MCI. If requested by MCI for out of
warranty Product(s), ADA will sell to MCI a replacement at the
prices set forth in Exhibit A or, if no such price exists, at
a price agreed upon by ADA and MCI. Repair charges will be
invoiced against MCI's Repair Delivery Order (RDO).
vii) All invoices originated by ADA for repair services must be
clearly identified as such, and must contain: (1) a reference
to MCI's Order for these repair services, (2) repair charges,
if any and (3) the MCI tracking number (RE control number).
With the concurrence and scheduling of MCI, repair may be made by ADA on site.
ARTICLE 22 - AVAILABILITY OF PARTS
ADA shall make available to MCI repair parts of the latest revision for all
Products furnished under this Agreement for a period of *** (**) years from its
effective date. ADA shall give *** (*) year prior written notice to MCI in the
event ADA will be unable to supply such parts or to obtain another source of
supply for MCI in accordance with this Agreement. ADA's inability to provide
such parts shall be a default of this Agreement in accordance with the Article
contained in the terms and conditions of this Agreement entitled "Termination
for Default." Without waiving any of its rights or remedies under this Agreement
or by law MCI may, at its sole option, allow ADA to provide MCI with drawings
and all technical information or any other rights ADA may have so that MCI can
manufacture or obtain such parts from other sources. The technical information
shall include, by example and not by way of limitation: (a) manufacturing
drawings and specification of raw materials and components comprising such
parts; (b) manufacturing drawings and specifications covering special tooling
and the operation thereof; (c) a detailed list of all commercially available
parts and components purchased by ADA on the open market, disclosing the part
number, name and location of the supplier, for the purchase thereof; and (d)
in-depth test specifications and procedures describing the methods of testing
and repairing the material.
ARTICLE 23 - TRAINING
At MCI's request and in accordance with the pricing and time frame set forth in
Exhibit F, ADA shall provide training for MCI personnel on operation and
maintenance of the ADA equipment and systems as reasonably requested by MCI.
Training courses offered by ADA are set forth in Exhibit F.
ARTICLE 24 - CHANGES
MCI may, by written change order or modification, and without notice to any
surety, make changes within the general scope of this Agreement in drawings,
designs, specifications, methods of shipment or packaging/packing, quantities,
or time or place of delivery; require additional Work or direct the
* Certain confidential portions of this Exhibit were omitted by means of
blacking out the text (the "Xxxx"). This Exhibit has been filed separately
with the Secretary of the Commission without the Xxxx pursuant to the Company's
Application Requesting Confidential Treatment under Rule 24b-2 under the
Securities Exchange Act of 1934.
August 11, 1997 MCI PROPRIETARY AND CONFIDENTIAL Page 12
16
omission of Work. To the extent that such change modifies the scope of ADA's
obligations under this Agreement, the Parties shall negotiate an equitable
adjustment to the contract price and/or schedule as necessary. Changes to this
Agreement can only be made in writing and signed by the duly authorized
representatives or designee of both Parties as described in Article 44 --
NOTICES.
ADA shall submit a proposal for the contract adjustment within thirty (30) days
after receipt of written notice from MCI, which MCI shall either accept or
reject within thirty (30) days of receipt. After the Parties have arrived at an
equitable adjustment to the contract price and schedule, nothing in this Article
shall excuse ADA from promptly proceeding with this Agreement as changed.
The Parties shall attempt to reach agreement as to any equitable adjustment that
is due pursuant to the first paragraph of this Article. Without relieving ADA of
its obligation to proceed promptly with this Agreement, in the event the Parties
are unable to reach an Agreement as to an equitable adjustment, the matter shall
be determined in accordance with the Article of this Agreement entitled
ARBITRATION.
MCI's personnel may from time to time render technical assistance or give
technical advice to, or effect an exchange of information with ADA personnel
concerning the Work to be furnished under this Agreement. However, ADA shall not
deviate from the requirements of this Agreement by reason of such assistance or
exchange of information, unless the deviation is incorporated into and
authorized by a change order issued in accordance with the first paragraph of
this Article. ADA shall not, by reason of such assistance, advice or exchange of
information, delete or in any way modify any of MCI's rights or any of ADA's
obligations, express or implied, which are a part of this Agreement.
ARTICLE 25 - CHANGES TO FORM, FIT, OR FUNCTION
ADA shall neither make nor incorporate any changes to the Products provided
hereunder which affect form, fit, function, interface or interchangeability,
without the prior express written notification of MCI. ADA shall notify MCI
within ninety (90) days of the effective change date. In addition, ADA shall
furnish, if available, MCI with new or updated manuals and/or agenda sheets and
new and/or revised data and drawings for all other affected documentation
furnished under this Agreement.
ADA may make or incorporate changes not affecting form, fit, function, interface
or interchangeability of the Product as it deems necessary at any time.
In the event certain changes become mandatory by reason of safety or failure of
the Products to perform in accordance with the requirements of this Agreement,
ADA shall provide immediate written notice to MCI and shall proceed promptly to
make the necessary change(s). ADA shall bear all costs and expenses relating to
such retrofit or replacement of Products which are necessary for the Products to
conform to the requirements of the Agreement.
Any mandatory changes to the Products, once approved by MCI, shall be compatible
with all Products in use (for a minimum of two releases backward) or on order
pursuant to this Agreement unless the Parties otherwise specifically agree. If
any mandatory change is not compatible, upward or downward as described, ADA, at
MCI's option, shall retrofit such change(s) on all affected installed Products
ordered pursuant to this Agreement at no cost to MCI.
ARTICLE 26 - INSURANCE
During the term of this Agreement, ADA shall maintain insurance, the kinds and
in the amounts specified with insurers of recognized responsibility, licensed to
do business in the State(s) where the work is being
August 11, 1997 MCI PROPRIETARY AND CONFIDENTIAL Page 13
17
performed, and having either: an A.M. Best rating of A8, a Standard & Poor's
rating of AA, or a Xxxxx'x rating of Aa2. If any Work provided for or to be
performed under this Agreement are subcontracted, ADA shall require the
subcontractor(s) to maintain and furnish insurance equivalent to that which is
required of ADA.
In accordance with the above, ADA and any subcontractors shall maintain the
following insurance coverage:
a) Comprehensive or Commercial General Liability as follows:
$********* per occurrence combined single limit/$********* general
aggregate and will include:
i) coverage for contractual liability,
ii) coverage for the use of independent contractors, products and
completed operations, and
iii) will not contain an exclusion for explosion, collapse, and
underground coverage.
a) Business Automobile Liability including coverage for owned, hired,
leased, rented and non-owned vehicles as follows:
$********* combined single limit per accident
c) Workers' Compensation and Employers' Liability as follows:
Workers' Compensation - Statutory Limits
Employers Liability:
Bodily Injury by Accident $********* each accident
Bodily Injury by Disease $********* policy limit
Bodily Injury by Disease $********* each employee
A combination of primary and excess/umbrella liability policies will be
acceptable as a means to meet the limits required under this Agreement. The
required minimum limits of coverage shown above DO NOT limit or diminish ADA's
liability under this Agreement.
Excess or Umbrella Liability
Excess or Umbrella Liability coverage at a limit of no less than $********* per
occurrence and aggregate in excess of the underlying coverage required above.
Standard Provisions
a) ADA will submit to MCI a standard "Accord" insurance certificate
(or comparable form acceptable to MCI) signed by an authorized
representative of such insurance company(ies), certifying that the
insurance coverage(s) required hereunder are in effect for the
purposes of this Agreement. Said insurance certificate shall
certify that no material alteration, modification or termination of
such coverage(s) shall be effective without at least 30 days
advance written notice to MCI.
* Certain confidential portions of this Exhibit were omitted by means of
blacking out the text (the "Xxxx"). This Exhibit has been filed separately
with the Secretary of the Commission without the Xxxx pursuant to the
Company's Application Requesting Confidential Treatment under Rule 24b-2
under the Securities Exchange Act of 1934.
August 11, 1997 MCI PROPRIETARY AND CONFIDENTIAL Page 14
18
b) ADA's insurers shall waive all rights of recovery against MCI for
any injuries to persons or damage to property due to the fault of
ADA in the execution of work performed under this Agreement.
c) All policies (excluding workers' compensation) shall name MCI, its
subsidiaries and affiliates, as Additional Insured as respects
work performed under this Agreement.
d) ADA shall permit any authorized representative of MCI to examine
ADA's original insurance policies should MCI so reasonably
request. Should ADA at any time neglect or refuse to provide the
insurance required herein, or should such insurance be canceled or
non-renewed, MCI shall have the right to terminate this Agreement,
or costs of securing substitute coverage shall be deducted from
payments owed to ADA.
e) ADA's insurance shall be considered primary and not excess of
contributing with any other applicable insurance.
f) ADA and all subcontractors shall ensure full compliance with the
terms of the Occupational Safety and Health Administration (OSHA)
and all locations' and jurisdictions' safety and health regulations
during the full term of this Agreement.
ARTICLE 27 - INDEMNIFICATION
The Parties, at their own expense, shall indemnify and hold the other Party, its
directors, officers, employees, agents, subsidiaries, affiliates, customers,
designees, and assignees harmless from any loss, damage, liability or expense,
on account of damage to physical property and bodily injuries, including death,
to all persons, arising from any occurrence solely caused by any negligent or
intentional act or omission of the other Party or its subcontractors related to
the performance of this Agreement. Each Party, at its expense, shall defend any
suit or dispose of any claim or other proceedings brought against the other
Party on account of such damage or injury, and shall pay all expenses, including
attorneys' fees, and satisfy all judgments which may be incurred by or rendered
against the other Party, provided that the Party seeking indemnification
hereunder shall notify the other promptly and in writing of any claim or action,
provide reasonable assistance, and shall afford the other Party sole control in
the defense or settlement of such claim or action.
ARTICLE 28 - PATENT RIGHTS
The Parties concur that, except as they may separately agree pursuant to an
applicable development agreement, none of the hardware, software, processes,
methods, techniques, or know-how produced or developed by ADA pursuant to this
Agreement shall constitute a work for hire and, accordingly, no patent rights or
other intellectual property rights with respect to the same shall accrue to MCI.
ARTICLE 29 - PATENT INDEMNITY
ADA, at its own expense, shall indemnify and hold MCI harmless from any loss,
damage, liability or expense on account of any claim(s), and shall defend any
suit based on an allegation that the Product, use, or license of any portion
thereof infringes any United Stated patents, copyrights, trade secrets,
trademarks, or other proprietary right(s). ADA shall pay any royalties and other
costs or expenses, including attorney's fees, related to the defense,
settlement, or disposition of such infringement claim(s). MCI shall promptly
notify ADA in writing of any such infringement claim or action and give ADA
authority and any assistance or information reasonably available to MCI for the
defense of such claim(s).
August 11, 1997 MCI PROPRIETARY AND CONFIDENTIAL Page 15
19
Any such assistance or information which is furnished by MCI at the request of
ADA shall be at ADA's expense.
If MCI's Use or license of the Product or any portion thereof, is enjoined as a
result of a suit based on any such claim(s) of infringement, ADA agrees to the
following:
a) At its own expense and option, negotiate a license or other
agreement with the claimant so that the Product is no longer
subject to such injunction; or
b) At its own expense, replace or modify such Product suitably or
substitute a suitable Product therefor (subject to the approval of
MCI), which modified or substituted Product is not subject to such
injunction, and to extend the provisions of this Article thereto,
or
c) In the event that none of the foregoing alternatives are suitably
accomplished by ADA using commercially reasonable efforts, ADA
shall accept return of the Product and reimburse MCI for the price
of the Product less depreciation of the Product based on a system
life of five (5) years.
In the event that any proposed settlement or compromise terms do not include
MCI's right to continue to Use the Product in substantially the same form and on
substantially the same terms and conditions as set forth in this Agreement, MCI
may participate in such negotiations at its own expense, and MCI and ADA shall
seek to obtain such ongoing right to Use. Moreover, at any time, MCI may at its
own cost and expense settle or compromise any such claims against it so long as
such settlement or compromise is expressly without prejudice to the interest or
position of ADA and without cost or expense to the ADA.
ADA's obligation under this Article does not apply with respect to the Product
or portions or components thereof (i) not supplied by Product or its suppliers,
(ii) which are modified by any party other than Product after the date of
delivery by Product, (iii) which are modified by Product in accordance with
specifications provided by MCI (to the extent the alleged infringement relates
to such modification), (iv) combined with other products, processes or
materials, to the extent the alleged infringement relates to such combination,
(v) where MCI continues the allegedly infringing activity after being notified
thereof in writing by ADA, and (vi) where MCI's use of the Product is incident
to an infringement not resulting primarily from the Product or is not strictly
in accordance with the license granted in this Agreement.
ARTICLE 30 - LIENS
As MCI requires, before submitting any invoice for payment, or at any other time
that MCI requires, ADA shall deliver to MCI a satisfactory release of any and
all liens arising in connection with the Work under this Agreement.
ADA shall dispose of any claim and defend any suit or injunction brought to
enforce any lien arising from the performance of any Work under this Agreement,
and shall pay all expenses associated with such proceedings.
MCI may withhold from any payment or consideration otherwise due ADA, any sum
that MCI has reason to believe may be needed to satisfy any third party lien
arising out the Work under this Agreement. Prior to the time of any such
withholding, MCI shall notify ADA in writing of the nature of the lien and the
amount of money to be withheld pursuant to this Article and afford ADA
reasonable opportunity to satisfy the lien.
August 11, 1997 MCI PROPRIETARY AND CONFIDENTIAL Page 16
20
ADA shall reimburse MCI for all moneys, including all costs and reasonable
attorneys' fees, incurred by MCI in removing liens arising out of the Work under
this Agreement. Such reimbursement may be deducted from any payment or
consideration otherwise due ADA. ADA shall, upon written request by MCI,
promptly pay MCI any amounts due under this Article.
ARTICLE 31 - TERMINATION FOR CONVENIENCE
By written notice to ADA, MCI may terminate this Agreement or any Order issued
hereunder for its convenience at any time prior to completion. In the event of
such termination by MCI, it is agreed that the termination charges shall be
negotiated. However, in no event shall the termination charges pursuant to this
Article exceed the lesser of:
a) the total contract price as reduced by contract price of the Work
not terminated; or
b) the total costs, both direct and indirect, incurred by ADA in the
performance of the Work so terminated.
In the event of termination pursuant to this Article, ADA shall take all action
necessary to reduce the termination costs due from MCI, including but not
limited to, the immediate discontinuance of the terminated Work under this
Agreement, and the placing of no further orders for labor, material or services
required under the terminated portion. ADA agrees to take such action, as may be
necessary or as MCI may direct, for protection of property in ADA's possession
in which MCI may have acquired an interest.
ADA shall continue performance of the portion of this Agreement not terminated.
MCI shall have no obligation to ADA with respect to the terminated portion of
this Agreement, except as herein provided.
In the event of termination, ADA agrees to advise MCI in writing of all proposed
settlements with vendors which may bear upon the liability of MCI pursuant to
this Article; and ADA further agrees not to enter into any binding settlement
until either MCI has approved the proposed settlement or thirty (30) days have
elapsed from the date MCI was first notified of such proposed settlement.
Direct and indirect costs shall be determined in accordance with generally
accepted accounting practices and verified by an independent Certified Public
Accountant at MCI's cost. MCI shall pay ADA the termination charges due under
this Article within sixty (60) days after submission to MCI of such total costs
which, at MCI's option, may be verified by an independent Certified Public
Accountant. Payment of any termination charges hereunder shall be in an amount
equal to the total termination charges less the following:
a) Amount(s) previously paid by MCI to ADA for the terminated Products
pursuant to this Agreement; and
b) Amount(s) representing ADA's total cost of segregable items of
inventory for the terminated Work not desired by MCI and which is
commonly retained in ADA's parts of finished goods inventory.
Should the sum of (a) and (b) above exceed the total termination charges, ADA
shall repay to MCI within sixty (60) days the amount by which the sum of (a) and
(b) above exceed the total termination charges.
August 11, 1997 MCI PROPRIETARY AND CONFIDENTIAL Page 17
21
ARTICLE 32 - TERMINATION FOR DEFAULT
By written notice of default to ADA, MCI may terminate this Agreement, or any
order issued hereunder, in any one of the following circumstances:
a) If ADA fails to perform any of the other provisions of this
Agreement, or so fails to make progress as to endanger performance
of this Agreement in accordance with its terms, and in which of
these two circumstances does not initiate a mutually agreeable plan
within a period of ten (10) days (or such longer period as MCI may
authorize in writing) after receipt of notice from MCI specifying
such failure; or
b) If ADA commits an anticipatory breach of this Agreement which is
not remedied within thirty (30) days (or such longer period as MCI
may authorize in writing) after receipt of notice from MCI
specifying such anticipatory breach; or
c) ADA become insolvent or the subject of proceedings under any law
relating to bankruptcy the relief of debtors or admits its
inability to pay its debts as they become due.
In the event of default under this Article, ADA shall repay to MCI any payments
made by MCI in excess of the price of Work delivered by ADA and accepted by MCI.
In no event shall MCI be liable for the cost of partially completed Work not
delivered and accepted by MCI.
By written notice of default to MCI, ADA may terminate this Agreement, or any
Order issued hereunder, in any one of the following circumstances:
a) If MCI fails to make any payment within the time specified herein
or any extension hereof and does not cure such failure within
thirty (30) days of receipt of notice from ADA describing such
default; or
b) If MCI fails to perform any of the other provisions of this
Agreement and does not cure such failure within a period of thirty
(30) days (or such longer period as ADA may authorize in writing)
after receipt of notice from ADA specifying such failure, except in
the case of MCI's breach of Article 19 in which case termination
shall be effective immediately upon MCI's receipt of notice; or
c) If MCI commits an anticipatory breach of this Agreement which is
not remedied within thirty (30) days (or such longer period as ADA
may authorize in writing) after receipt of notice from ADA
specifying such anticipatory breach;
d) MCI becomes insolvent or the subject of proceedings under any law
relating to bankruptcy the relief of debtors or admits its
inability to pay its debts as they become due.
In the event of expiration or any termination of this Agreement (i) MCI's
obligation to pay all sums due hereunder shall be accelerated and all such sums
shall be due and payable on the effective date of termination and (ii) in the
event of termination by ADA due to MCI's default, all licenses granted to MCI
hereunder shall immediately terminate.
Neither Party shall incur any liability whatsoever for any damage, loss or
expenses of any kind suffered or incurred, except attorney's fees, by the other
party arising from or incident to any termination of this Agreement which
complies with the terms hereof except as specified by Arbitration in Article 35
-- ARBITRATION / DISPUTE RESOLUTION.
August 11, 1997 MCI PROPRIETARY AND CONFIDENTIAL Page 18
22
If this Agreement is terminated as provided in this Article, in addition to any
other rights provided in this Article, the terminating Party shall have the
right of recovery of attorney's fees. MCI may withhold from amounts otherwise
due ADA for such completed supplies such sum(s) as MCI deems reasonably
necessary to protect MCI against any loss arising in connection with outstanding
liens or claims of former lien holders with respect to the Work delivered by
ADA. The rights and remedies of the Parties, provided in this Article are not
exhaustive and are in addition to any other rights and remedies under this
Agreement or by operation of law.
ARTICLE 33 - ASSIGNMENT
Any assignment or delegation of the rights or obligations hereunder, in whole or
in part, or any other interest hereunder, without MCI's written consent, which
consent shall not be unreasonably withheld, shall be void; except that an
assignment confined solely to money due or to become due shall be void only to
the extent that it attempts to impose upon MCI obligations to the assignee
additional to the payment of such moneys, or preclude MCI from dealing solely
and directly with ADA in all matters pertaining hereto, including the
negotiation of amendments or settlements of amounts due. Either Party may assign
its interest in the Agreement in connection with the sale of all or
substantially all of the assets, capital stock or business of that Party,
whether by sale of stock, assets, merger or otherwise, without the prior written
consent of the other Party.
ARTICLE 34 - CONSEQUENTIAL DAMAGES
NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, NEITHER PARTY
SHALL NOT BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR
UNDER ANY AGREEMENT OR CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL OR
EQUITABLE THEORY FOR AMOUNTS IN EXCESS OF THAT AMOUNT WHICH IS THE GREATER OF
(I) THE AGGREGATE OF THE AMOUNTS PAID BY MCI TO ADA UNDER THIS AGREEMENT DURING
THE ******** PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE, OR (II)
$********* AND ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL DAMAGES, LOSS OF
PROFITS OR LOST DATA EXCEPT AS PROVIDED IN ARTICLE 29 -- PATENT INDEMNITY.
ARTICLE 35 - ARBITRATION / DISPUTE RESOLUTION
Any dispute arising out of or related to this Agreement, which cannot be
resolved by negotiation, shall be settled by binding arbitration in accordance
with the J.A.M.S/ENDISPUTE Arbitration Rules and Procedures ("Endispute Rules"),
as amended by this Agreement. The costs of arbitration, including the fees and
expenses of the arbitrator, shall be borne by the losing party unless the
arbitration award provides otherwise. Each party shall bear the cost of
preparing and presenting its case. The Parties agree that this provision and the
Arbitrator's authority to grant relief shall be subject to the United States
Arbitration Act, 9 U.S.C. 1-16 et seq. ("USAA"), the provisions of this
Agreement, and the ABA-AAA Code of Ethics for Arbitrators in Commercial
Disputes. The Parties agree that the arbitrator shall have no power or authority
to make awards or issue orders of any kind except as expressly permitted by this
Agreement, and in no event shall the arbitrator have the authority to make any
award that provides for punitive or exemplary damages. The Arbitrator's decision
shall follow the plain meaning of the relevant documents, and shall be final and
binding. The award may be confirmed and enforced in any court of competent
jurisdiction. All post-award proceedings shall be governed by the USAA.
Notwithstanding
* Certain confidential portions of this Exhibit were omitted by means of
blacking out the text (the "Xxxx"). This Exhibit has been filed separately
with the Secretary of the Commission without the Xxxx pursuant to the
Company's Application Requesting Confidential Treatment under Rule 24b-2
under the Securities Exchange Act of 1934.
August 11, 1997 MCI PROPRIETARY AND CONFIDENTIAL Page 19
23
anything to the contrary, either Party shall be entitled to petition a court of
competent jurisdiction for the specific, limited purpose of requesting
injunctive relief.
ARTICLE 36 - MCI'S PROPERTY
Unless otherwise agreed to in writing, any physical property including but not
limited to designs, sketches, drawings, blueprints, patterns, dies,
specifications, engineering data or other technical or proprietary information,
and other equipment or material of every description furnished to ADA by MCI
shall remain the property of MCI. ADA shall not substitute any property for
MCI's property and shall not use such property except in filling MCI's orders.
Such property while in ADA's custody or control shall be maintained in good
condition at ADA's expense, shall be held at ADA's risk and shall be kept
insured by ADA at ADA's expense in an amount equal to the replacement cost with
loss payable to MCI. ADA shall make disposition of MCI's property as may be
directed or approved at any time by MCI.
ARTICLE 37 - MCI'S RESPONSIBILITY
MCI shall provide ADA reasonable access to the Products during the time(s)
necessary to install, maintain and service the Products on site.
MCI shall provide reasonable working space and facilities, including heat,
light, ventilation, electric current, outlets and the like, for use by ADA and
adequate storage space, if required, for spare parts, components and other
materials. All such facilities shall be provided by MCI at no cost to ADA on
site.
ARTICLE 38 - ADA'S RESPONSIBILITY
ADA is an independent contractor and is responsible to MCI for all acts or
omissions of all persons directly or indirectly used by it or any of its
subcontractor(s) in connection with the Work required by this Agreement;
provided, however, that nothing in this Agreement shall be construed as creating
any contractual relationship between MCI and any subcontractor.
The granting of any specific approvals by MCI shall not affect the
responsibility of ADA for other aspects of the design of the Products to meet
the requirements of the Agreement or for the correctness of ADA's drawings and
specifications. No such granting by MCI or course of dealing between the Parties
shall be held to constitute a waiver by MCI of any of MCI's rights under this
Agreement. All waivers by MCI shall be in writing.
ARTICLE 39 - REQUIREMENTS FOR BAR CODING
ADA shall comply with MCI bar coding requirements which include the following
documents:
a) MCI Telecommunications Corporation Bar Code Label Specification
Equipment Labels, Issue 4, dated November 15, 1991
b) MCI Requirements for Bar Code Labeling of Shipping Containers and
Product Packaging, dated November 15, 1991
c) TCIG Shipping and Receiving Transaction Bar Code Label
Specification, Issue 2, dated December 5, 1989
August 11, 1997 MCI PROPRIETARY AND CONFIDENTIAL Page 20
24
ARTICLE 40 - PERMITS AND LICENSES
ADA shall, at its own expense, obtain all permits and licenses required for the
performance of Services under this Agreement, including but not by way of
limitation, inspection fees or any certificates of occupancy required by any
code, ordinance, or governmental regulations. ADA shall perform the Work in
accordance with the conditions of all applicable permits and licenses.
ARTICLE 41 - LABOR
ADA shall use only workers and supervisory personnel skilled in the job for
which they are employed. In the event that, in MCI's opinion, any xxxxxxx or
supervisory person is uncooperative, careless or incompetent and unless the
Parties cannot resolve in good faith MCI's complaint, ADA shall remove such
person immediately upon MCI's request and such person shall not be re-employed
in the Work under this Agreement.
Division of any project specification into sections is not intended to control
ADA's division of Services among different trades or to limit the Services
performed by any trade.
ADA shall familiarize itself with the labor/management relationships at the site
at which the Services under this Agreement are contemplated and shall conduct
its activities under this Agreement in such a manner as to avoid (a) any
interruption of activity or services at the sites and (b) any interference with
the work of other contractors. Whenever ADA has knowledge that any actual or
potential labor dispute is delaying or threatening to delay, or may delay the
timely performance of this Agreement, it shall immediately give MCI notice
thereof and all relevant information it has with respect thereto.
ARTICLE 42 - TRADE NAMES, TRADEMARKS AND TRADE DRESS
Upon mutual agreement between the Parties, ADA agrees to comply with all MCI
instructions regarding the trade dress, packaging, trade names, trademarks,
service marks or other indicia of source which shall appear on items to be
delivered under this Agreement. ADA further agrees that, after delivery of said
item(s) to MCI or a designated MCI customer, MCI may, as mutually agreed, modify
the trade dress or packaging thereof, and/or replace, modify, or supplement any
indicia of origin appearing thereon, to identify MCI as the source of said
item(s).
ADA shall not use any xxxx or trade name of MCI or refer to MCI in connection
with any product, equipment, promotion, or publication without the prior written
approval of MCI's Authorized Representative.
ARTICLE 43 - PUBLIC RELEASE OF INFORMATION
No news releases, articles, brochures, advertisements, speeches or other
information releases related to this Agreement or the terms of this Agreement
shall be made without the prior written approval of the MCI's Procurement
Department or ADA's Marketing Department. The Parties agree to give each other
reasonable advance time for review of any material submitted for approval which
shall not be unreasonably delayed or withheld.
August 11, 1997 MCI PROPRIETARY AND CONFIDENTIAL Page 21
25
ARTICLE 44 - NOTICES
Any notice(s) required or permitted to be given or made in this Agreement shall
be in writing. Such notice(s) shall be deemed to be duly given or made when it
shall have been delivered by hand or registered mail to the Party to which it is
required to be given or made at such Party's address specified below or as
amended by notice pursuant to this Article:
MCI: MCI Telecommunications Corporation
0000 Xxxxxxxx Xxxx.
Xxxxxxxxxx, Xxxxx 00000
Attention: Director, Network Acquisition
ADA: Applied Digital Access, Inc.
0000 Xxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Contract Administration
ARTICLE 45 - ORDER OF PRECEDENCE
In the event of any ambiguity and/or inconsistency between the terms and
conditions, Statement of Work, specifications, drawings or other documents
incorporated by reference, the following descending order of precedence shall
control:
a) Terms and conditions and any amendments thereto;
b) Orders issued pursuant to this Agreement;
c) Drawings and other documents attached to the Specifications or
incorporated by reference.
ARTICLE 46 - APPLICABLE LAW
This Agreement shall be interpreted, construed and governed by the laws of the
State of New York without regards to its provisions relating to conflicts of
laws.
ARTICLE 47 - GENERAL
ADA agrees that the Work performed under this Agreement, including the Products
of that Work, shall comply with all applicable permits and licenses and the
requirements of all applicable laws, regulations and standards.
Where this Agreement or any code, ordinance, or governmental regulation requires
a material or item to conform to a particular standard, ADA shall, at the
request of MCI, deliver to MCI a certificate from the manufacturer or its
authorized representative stating that the material of item furnished conforms
to the standard prescribed. Such certificate shall be in triplicate and in such
form as MCI may reasonably require.
ADA agrees that it will neither incorporate any provision in its subcontracts
nor enter into any contract, written or oral, either directly or indirectly,
with subcontractor or vendors which has or may have the effect of prohibiting
subcontractor or vendor sales directly to MCI of any supplies, like those
manufactured or services like those furnished by any tier subcontractor or
vendor pursuant to this Agreement.
August 11, 1997 MCI PROPRIETARY AND CONFIDENTIAL Page 22
26
Any permission, acknowledgment or response required of or by either Party shall
not be unreasonably delayed.
The Parties agree that their respective rights, obligations and duties under
Articles entitled DEFINITIONS, INVOICING AND PAYMENT, TECHNICAL SUPPORT, PATENT
INDEMNITY, LIENS, MCI'S RESPONSIBILITY, ADA'S RESPONSIBILITY, APPLICABLE LAW,
GENERAL, EXAMINATION AND ENTIRETY OF AGREEMENT, and MISCELLANEOUS shall survive
expiration and any termination of this Agreement.
ARTICLE 48 - EXAMINATION AND ENTIRETY OF AGREEMENT
By executing this Agreement, each Party represents that it has thoroughly
examined this Agreement and believes it to be complete, consistent and accurate.
This Agreement sets forth and shall constitute the entire Agreement between MCI
and ADA with respect to the subject matter thereof, and supersedes all prior or
contemporaneous agreements or understandings between the Parties. This Agreement
may not be changed, modified or terminated orally, and no amendment,
interpretation, change, modification or termination of any of the provisions
hereof shall be binding unless in writing and signed by a duly authorized
officer or agent of both Parties against whom the same is sought to be enforced.
ARTICLE 49 - MISCELLANEOUS
The failure of either Party to enforce its rights under this Agreement at any
time for any period shall not be construed as a wavier of such rights.
Headings and captions are for convenience only and are not to be used in the
interpretation of this Agreement.
If any provision of this Agreement is held by a court of competent jurisdiction
to be illegal, invalid or unenforceable, that provision shall be limited or
eliminated to the minimum extent necessary so that this Agreement shall
otherwise remain in full force and effect and enforceable.
This Agreement may be executed in two or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the
same instrument.
August 11, 1997 MCI PROPRIETARY AND CONFIDENTIAL Page 23
27
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be duly
executed as of the date written above.
APPLIED DIGITAL ACCESS MCI TELECOMMUNICATIONS
INCORPORATED CORPORATION
--------------------------------- ---------------------------------------
SIGNATURE SIGNATURE
--------------------------------- ---------------------------------------
NAME NAME
--------------------------------- ---------------------------------------
TITLE TITLE
--------------------------------- ---------------------------------------
DATE DATE
August 11, 1997 MCI PROPRIETARY AND CONFIDENTIAL Page 24
28
EXHIBIT A
DISCOUNT AND PRICE SCHEDULE
The price schedule for T3AS/Centralized Test System (CTS) contained in this
Exhibit is based on a progressive discount rate determined by the quantity of
Product purchased in the previous calendar year. The discount rate is set at the
beginning of each calendar year based on the total dollar volume of Products
purchased in the previous calendar year by MCI. MCI will make a reasonable
attempt to provide ADA with a forecast of the number of systems required for the
upcoming calendar year. Additional discounts may be offered if MCI decides to
purchase a specific quantity of T3AS/CTS systems at the beginning of each **
month period. Product deliveries for the quantity may extend throughout the **
month period.
* Certain confidential portions of this Exhibit were omitted by means of
blacking out the text (the "Xxxx"). This Exhibit has been filed separately
with the Secretary of the Commission without the Xxxx pursuant to the
Company's Application Requesting Confidential Treatment under Rule 24b-2
under the Securities Exchange Act of 1934.
August 11, 1997 MCI PROPRIETARY AND CONFIDENTIAL Page A-1
29
LIST DISCOUNT
PART NUMBER DESCRIPTION CLEI CPR ECI/BAR PRICE * *
--------------------------------------------------------------------------------------------------------------------------------
ADMINISTRATION SHELF
00-0000-0000 * T3MYAATEAA 460307 417683 $***** $***** $*****
00-0000-0000 * T3PQDA71AA 680491 665544 ***** ***** ***
02-0102-0000 * T3PQDA81AA 780014 665545 *** *** ***
00-0000-0000 * T3PQDA91AA 780015 665546 ***** ***** *****
00-0000-0000 * T3PQDB31AA 780018 665549 ***** ***** *****
00-0000-0000 * T3PQAK86AA 680770 213803 ***** ***** *****
*
00-0000-0000 * T3MM4001RA 460306 072409 $***** $***** $*****
00-0000-0000 * T3PUAE0CAA F70420 217162 *** *** ***
00-0000-0000 * T3PQDA31AA 972855 665539 ***** *** ***
00-0000-0000 * T3PQDA41AA 973270 665540 ***** ***** *****
02-0128-0000 * T3PQADG6AA A72405 628063 ***** ***** *****
02-0100-0000 * T3PQDA51AA 973271 665541 ***** ***** *****
00-0000-0000 * T3PQAEL6AA A73969 686974 ***** ***** *****
00-0000-0000 * T3PQAK76AA D70645 213802 ***** ***** *****
00-0000-0000 * T3PQAFH6AA B73375 200185 ***** ***** *****
*
00-0000-0000 * T3MMPM01RA 135240 426051 $***** $***** $*****
00-0000-0000 * T3PUAE0CAA F70420 217162 *** *** ***
00-0000-0000 * T3PQDA31AA 972855 665539 ***** *** ***
00-0000-0000 * T3PQAFG6AA B73374 200184 ***** ***** *****
00-0000-0000 * T3PQAK76AA D70645 213802 ***** ***** *****
* * #N/A #N/A #N/A ***** ***** *****
* * T3PQAK16AA D70510 213511 ***** ***** *****
00-0000-0000 * T3PQDA11AA 973269 665537 ***** ***** *****
00-0000-0000 * T3CPL0GEAA D70317 212987 ***** ***** *****
* * T3CPM0GEAA D70318 212988 ***** ***** *****
00-0000-0000 * T3PQAK06AA D70509 213509 ***** ***** *****
02-0100-0000 * T3PQDA51AA 973271 665541 ***** ***** *****
00-0000-0000 * T3PQDA41AA 973270 665540 ***** ***** *****
02-0128-0000 * T3PQADG6AA A72405 628063 ***** ***** *****
*
00-0000-0000 * T3MM3001RA 460305 072408 $***** $***** $*****
00-0000-0000 * T3PUAE0CAA F70420 217162 *** *** ***
00-0000-0000 * T3PQDA31AA 972855 665539 ***** *** ***
00-0000-0000 * T3PQAFG6AA B73374 200184 ***** ***** *****
00-0000-0000 * T3PQAEL6AA A73969 686974 ***** ***** *****
00-0000-0000 * T3PQAK76AA D70645 213802 ***** ***** *****
00-0000-0000 * T3PQDB41AA 972856 665690 ***** ***** *****
00-0000-0000 * T3PQAK06AA D70509 213509 ***** ***** *****
00-0000-0000 * T3PQDA11AA 973269 665537 ***** ***** *****
00-0000-0000 * T3CPL0GEAA D70317 212987 ***** ***** *****
* * T3CPM0GEAA D70318 212988 ***** ***** *****
* * T3PQAFN6AA B73414 200473 ***** ***** *****
* Certain confidential portions of this Exhibit were omitted by means of
blacking out the text (the "Xxxx"). This Exhibit has been filed separately
with the Secretary of the Commission without the Xxxx pursuant to the
Company's Application Requesting Confidential Treatment under Rule 24b-2
under the Securities Exchange Act of 1934.
August 11, 1997 MCI PROPRIETARY AND CONFIDENTIAL Page A-2
30
LIST DISCOUNT
PART NUMBER DESCRIPTION CLEI CPR ECI/BAR PRICE * *
---------------------------------------------------------------------------------------------------------------------------------
* * T3PQAK16AA D70510 213511 $***** $***** $ ***
*
00-0000-0000 * T3MM8001MA 560288 420066 ***** ***** *****
00-0000-0000 * T3PUAE0CAA F70420 217162 *** *** ***
00-0000-0000 * T3PQDA31AA 972855 665539 ***** *** ***
00-0000-0000 * T3PQAFG6AA B73374 200184 ***** ***** *****
00-0000-0000 * T3PQAEL6AA A73969 686974 ***** ***** *****
00-0000-0000 * T3PQAK76AA D70645 213802 ***** ***** *****
00-0000-0000 * T3PQAFJ6AA B73376 200186 ***** ***** *****
00-0000-0000 * T3PQAFK6AA B73377 200187 ***** ***** *****
00-0000-0000 * T3PQAFL6AA B73378 200188 ***** ***** ***
*
00-0000-0000 * N/A N/A N/A ***** ***** *****
00-0000-0000 * N/A N/A N/A ***** ***** *****
00-0000-0000 * N/A N/A N/A ***** ***** *****
02-0278-0000 * N/A N/A N/A ***** ***** *****
02-0182-0000 * N/A N/A N/A ****** ****** ******
00-0000-0000 * N/A N/A N/A ***** ***** *****
00-0000-0000 * N/A N/A N/A ***** ***** *****
02-0247-0000 * N/A N/A N/A ***** ***** *****
00-0000-0000 * N/A N/A N/A ***** ***** *****
00-0000-0000 * N/A N/A N/A ***** ***** *****
*
00-0000-0000 * N/A N/A N/A $*** $*** $***
00-0000-0000 * N/A N/A N/A *** *** ***
00-0000-0000 * N/A N/A N/A *** *** ***
00-0000-0000 * N/A N/A N/A ***** ***** *****
00-0000-0000 * N/A N/A N/A *** *** ***
00-0000-0000 * N/A N/A N/A ***** ***** *****
00-0000-0000 * N/A N/A N/A ***** ***** *****
00-0000-0000 * N/A N/A N/A *** *** ***
02-0268-0300 * N/A N/A N/A ***** ***** *****
00-0000-0000 * N/A N/A N/A *** *** ***
00-0000-0000 * N/A N/A N/A *** *** ***
02-0177-0000 * N/A N/A N/A *** *** ***
00-0000-0000 * N/A N/A N/A ** ** **
00-0000-0000 * N/A N/A N/A *** *** ***
00-0000-0000 * N/A N/A N/A *** *** ***
00-0000-0000 * N/A N/A N/A *** *** ***
*
00-0000-0000 * N/A N/A N/A $*** $*** $***
00-0000-0000 * N/A N/A N/A ** ** **
00-0000-0000 * N/A N/A N/A *** *** ***
00-0000-0000 * N/A N/A N/A *** *** ***
* Certain confidential portions of this Exhibit were omitted by means of
blacking out the text (the "Xxxx"). This Exhibit has been filed separately
with the Secretary of the Commission without the Xxxx pursuant to the
Company's Application Requesting Confidential Treatment under Rule 24b-2
under the Securities Exchange Act of 1934.
August 11, 1997 MCI PROPRIETARY AND CONFIDENTIAL Page A-3x
31
LIST DISCOUNT
PART NUMBER DESCRIPTION CLEI CPR ECI/BAR PRICE * *
------------------------------------------------------------------------------------------------------------------------------------
00-0000-0000 * N/A N/A N/A *** *** ***
00-0000-0000 * N/A N/A N/A *** *** ***
00-0000-0000 * N/A N/A N/A *** *** ***
00-0000-0000 * N/A N/A N/A *** *** ***
00-0000-0000 * N/A N/A N/A *** *** ***
00-0000-0000 * N/A N/A N/A *** *** ***
00-0000-0000 * N/A N/A N/A *** *** ***
00-0000-0000 * N/A N/A N/A *** *** ***
02-0225-0000 * N/A N/A N/A ** ** **
00-0000-0000 * N/A N/A N/A *** *** ***
02-0281-0000 * N/A N/A N/A ***** ***** *****
*
00-0000-0000 * N/A N/A N/A *** *** ***
00-0000-0000 * N/A N/A N/A *** *** ***
00-0000-0000 * N/A N/A N/A *** *** ***
00-0000-0000 * N/A N/A N/A *** *** ***
00-0000-0000 * N/A N/A N/A *** *** ***
00-0000-0000 * N/A N/A N/A *** *** ***
00-0000-0000 * N/A N/A N/A ** ** **
00-0000-0000 * N/A N/A N/A ** ** **
00-0000-0000 * N/A N/A N/A ** ** **
00-0000-0000 * N/A N/A N/A ** ** **
00-0000-0000 * N/A N/A N/A ** ** **
00-0000-0000 * N/A N/A N/A ** ** **
00-0000-0000 * N/A N/A N/A ** ** **
00-0000-0000 * N/A N/A N/A *** *** ***
* Certain confidential portions of this Exhibit were omitted by means of
blacking out the text (the "Xxxx"). This Exhibit has been filed separately
with the Secretary of the Commission without the Xxxx pursuant to the
Company's Application Requesting Confidential Treatment under Rule 24b-2
under the Securities Exchange Act of 1934.
August 11, 1997 MCI PROPRIETARY AND CONFIDENTIAL Page A-4
32
EXHIBIT B
APPLIED DIGITAL ACCESS LIST PRICES BY PRODUCT NUMBER LISTING
LIST
PART NUMBER DESCRIPTION CLEI CPR ECI/BAR PRICE
--------------------------------------------------------------------------------------------------------------------
02-0100-0000 * T3PQDA51AA 973271 665541 ******
00-0000-0000 * T3PQDA31AA 972855 665539 *****
02-0102-0000 * T3PQDA81AA 780014 665545 ***
00-0000-0000 * T3PQDA11AA 973269 665537 *****
00-0000-0000 * T3CPL0GEAA D70317 212987 *****
00-0000-0000 * T3PQAEL6AA A73969 686974 *****
00-0000-0000 * T3PQAK76AA D70645 213802 *****
00-0000-0000 * T3CPL0GEAA D70317 212987 *****
00-0000-0000 * T3PQDA41AA 973270 665540 *****
00-0000-0000 * T3MM3001RA 460305 072408 *****
00-0000-0000 * T3MM4001RA 460306 072409 *****
00-0000-0000 * T3MYAATEAA 460307 417683 *****
00-0000-0000 * T3PQDA71AA 680491 665544 *****
00-0000-0000 * T3PQDA91AA 780015 665546 *****
00-0000-0000 * T3PQAK86AA 680770 213803 *****
00-0000-0000 * T3PQDB31AA 780018 665549 *****
00-0000-0000 * T3PQDB41AA 972856 665690 *****
00-0000-0000 * T3PQAK06AA D70509 213509 *****
00-0000-0000 * T3PQDA41AA 973270 665540 *****
00-0000-0000 * N/A N/A N/A **
00-0000-0000 * N/A N/A N/A **
02-0128-0000 * T3PQADG6AA A72405 628063 *****
00-0000-0000 * T3CPL0GEAA D70317 212987 *****
00-0000-0000 * N/A N/A N/A ***
00-0000-0000 * N/A N/A N/A ***
00-0000-0000 * N/A N/A N/A ***
00-0000-0000 * N/A N/A N/A ***
00-0000-0000 * N/A N/A N/A ***
* * T3PQAFN6AA B73414 200473 *****
* * T3PQAK16AA D70510 213511 *****
00-0000-0000 * T3MM4001RA 460306 072409 *****
00-0000-0000 * N/A N/A N/A ***
00-0000-0000 * N/A N/A N/A **
00-0000-0000 * N/A N/A N/A ***
00-0000-0000 * N/A N/A N/A *****
00-0000-0000 * N/A N/A N/A ***
00-0000-0000 * T3PQAFH6AA B73375 200185 *****
00-0000-0000 * T3PQAFG6AA B73374 200184 *****
00-0000-0000 * N/A N/A N/A ***
00-0000-0000 * T3PQDA71AA 680491 665544 *****
00-0000-0000 * N/A N/A N/A **
00-0000-0000 * T3MM8001MA 560288 420066 *****
00-0000-0000 * T3PQAFJ6AA B73376 200186 *****
00-0000-0000 * T3PQAFK6AA B73377 200187 *****
* Certain confidential portions of this Exhibit were omitted by means of
blacking out the text (the "Xxxx"). This Exhibit has been filed separately
with the Secretary of the Commission without the Xxxx pursuant to the
Company's Application Requesting Confidential Treatment under Rule 24b-2
under the Securities Exchange Act of 1934.
August 11, 1997 MCI PROPRIETARY AND CONFIDENTIAL Page B-1
33
LIST
PART NUMBER DESCRIPTION CLEI CPR ECI/BAR PRICE
--------------------------------------------------------------------------------------------------------------------
00-0000-0000 * N/A N/A N/A ***
00-0000-0000 * T3PQAFL6AA B73378 200188 *****
02-0177-0000 * N/A N/A N/A ***
00-0000-0000 * T3PUAE0CAA F70420 217162 ***
00-0000-0000 * T3PQDA71AA 680491 665544 *****
00-0000-0000 * N/A N/A N/A ***
00-0000-0000 * T3PQAK86AA 680770 213803 *****
02-0182-0000 * N/A N/A N/A ******
00-0000-0000 * N/A N/A N/A ***
00-0000-0000 * N/A N/A N/A ****
00-0000-0000 * N/A N/A N/A ***
00-0000-0000 * N/A N/A N/A ***
00-0000-0000 * N/A N/A N/A ***
00-0000-0000 * N/A N/A N/A *****
00-0000-0000 * N/A N/A N/A ***
00-0000-0000 * N/A N/A N/A *****
02-0225-0000 * N/A N/A N/A **
00-0000-0000 * N/A N/A N/A *****
00-0000-0000 * N/A N/A N/A *****
* * T3CPM0GEAA D70318 212988 *****
00-0000-0000 * 0 N/A N/A *
00-0000-0000 * N/A N/A N/A *****
02-0247-0000 * N/A N/A N/A *****
00-0000-0000 * N/A N/A N/A *****
00-0000-0000 * N/A N/A N/A *****
00-0000-0000 * N/A N/A N/A *****
00-0000-0000 * N/A N/A N/A *****
00-0000-0000 * N/A N/A N/A ***
02-0268-0300 * N/A N/A N/A *****
00-0000-0000 * T3MMPM01RA 135240 426051 *****
* * #N/A #N/A #N/A *****
02-0278-0000 * N/A N/A N/A *****
02-0281-0000 * N/A N/A N/A *****
00-0000-0000 * N/A N/A N/A ***
00-0000-0000 * N/A N/A N/A **
00-0000-0000 * N/A N/A N/A ***
00-0000-0000 * N/A N/A N/A ***
00-0000-0000 * N/A N/A N/A **
00-0000-0000 * N/A N/A N/A ***
00-0000-0000 * N/A N/A N/A ***
00-0000-0000 * N/A N/A N/A ***
00-0000-0000 * N/A N/A N/A ***
00-0000-0000 * N/A N/A N/A ***
00-0000-0000 * N/A N/A N/A ***
00-0000-0000 * N/A N/A N/A **
00-0000-0000 * N/A N/A N/A ***
00-0000-0000 * N/A N/A N/A ***
00-0000-0000 * N/A N/A N/A ***
* Certain confidential portions of this Exhibit were omitted by means of
blacking out the text (the "Xxxx"). This Exhibit has been filed separately
with the Secretary of the Commission without the Xxxx pursuant to the
Company's Application Requesting Confidential Treatment under Rule 24b-2
under the Securities Exchange Act of 1934.
August 11, 1997 MCI PROPRIETARY AND CONFIDENTIAL Page B-2
34
LIST
PART NUMBER DESCRIPTION CLEI CPR ECI/BAR PRICE
--------------------------------------------------------------------------------------------------------------------
00-0000-0000 * N/A N/A N/A ***
00-0000-0000 * N/A N/A N/A **
00-0000-0000 * N/A N/A N/A **
* Certain confidential portions of this Exhibit were omitted by means of
blacking out the text (the "Xxxx"). This Exhibit has been filed separately
with the Secretary of the Commission without the Xxxx pursuant to the
Company's Application Requesting Confidential Treatment under Rule 24b-2
under the Securities Exchange Act of 1934.
August 11, 1997 MCI PROPRIETARY AND CONFIDENTIAL Page B-3
35
EXHIBIT C
MCI ALLIANCE PARTNERS
MCI Telecommunications Corporation, including but not limited to the following
subsidiaries, affiliates, and those entities with which MCI has an on-going
enterprise, are hereby designated authorized users of this Agreement and may at
their option purchase Equipment, and/or Software in accordance with this
Agreement.
Access Transmission Services, Inc.
Access Transmission Services of Virginia, Inc.
Avantel, S.A.
British Telecommunications, PLC
Concert Communications Company
MCI America, Inc.
MCI Canada, Inc.
MCI Equipment Acquisition Corporation
MCI Global Access Corporation
MCI Global Resources, Inc.
MCI Infosearch, Inc.
MCI International, Inc.
MCI International Telecommunications Corporation
MCImetro, Inc.
MCImetro Access Transmission Services, Inc.
MCI Network Technologies, Inc.
MCI/OTI Corporation
MCI Systemhouse Corporation (U.S.)
MCI Telecommunications Corporation
MCI Telecommunications Corporation of New Hampshire
MCI Telecommunications Corporation of Virginia
MCI Wireless, Inc.
networkMCI, Inc.
Overseas Telecommunications, Inc.
SHL Systemhouse, Inc. (Canada)
Southernnet Systems, Inc.
Stentor
Telecom*USA, Inc.
Teleconnect Long Distance Services and Systems Company
August 11, 1997 MCI PROPRIETARY AND CONFIDENTIAL Page C-1
36
EXHIBIT D
SOFTWARE MAINTENCE PLAN
D.1 INTRODUCTION
ADA shall provide a Software Upgrade Program ("Program") to provide continued
software support after MCI's software warranty has expired. The Program shall
include a minimum of two software upgrades per year to incorporate enhancements,
improvements and modifications to the System Software. New software releases add
new functionality to T3AS or CTS that enable technicians to perform their job
effectively. The software-based architecture of T3AS protects hardware
investments, since most new features are enabled through software.
D.2 SOFTWARE RELEASES
The Program shall provide selected Enhancements and Modifications to previous
Software Versions, including MCI suggested changes ADA considers not to be major
feature enhancements and which are generally applicable to ADA's customers.
Software upgrades shall be cumulative and include all improvements, changes and
new features to date.
The Program will include at least two software releases per year. ADA shall to
ensure that new features are provided on a timely basis while minimizing the
number of software upgrades each year. ADA will publish feature descriptions in
advance for current and upcoming releases in accordance with MCI's standard
procedures.
D.3 TECHNICAL SUPPORT
The Program will include unlimited telephone support at no charge during normal
business hours for non-emergency issues and twenty-four hours per day for
emergency (service affecting) issues.
ADA will assist MCI in installing new software releases for an additional
charge. Software installation charges are in accordance with ADA's charges for
on-site technical support listed in the table below entitled Engineering &
Installation Services.
D.4 CHARGES
MCI agrees to pay for the Program annually in advance. MCI may elect to
terminate the Program upon thirty (30) days written notice to ADA and shall
receive a prorated rebate for the remaining balance.
A one year subscription to the software upgrade program for CTS costs $***** per
system. Each software release for T3AS/CTS costs $***** per system outside the
software upgrade program. ADA offers MCI the option of purchasing an additional
4 years of software maintenance extended from the period of time when the
software warranty period expires for $********.
SOFTWARE MAINTENANCE PROGRAM PRICES
---------------------------------------------------------------------------
MCI Price List Price
CTS Maintenance Program 1 Yr. $***** $*****
CTS Maintenance Program 4 Yr. $***** $******
CTS Software Upgrade $***** $*****
(out-of-program)
* Certain confidential portions of this Exhibit were omitted by means of
blacking out the text (the "Xxxx"). This Exhibit has been filed separately
with the Secretary of the Commission without the Xxxx pursuant to the
Company's Application Requesting Confidential Treatment under Rule 24b-2
under the Securities Exchange Act of 1934.
August 11, 1997 MCI PROPRIETARY AND CONFIDENTIAL Page D-1
37
ENGINEERING & INSTALLATION SERVICES
================================================================================
Description Price
--------------------------------------------------------------------------------
Project Management Services $**** per day
Equipment Installation Quotations Available on
Request
Field Service Engineering $**** per day
Software Upgrades $**** per system
includes travel &
expenses
D.5 PROGRAM ADMINISTRATION
XXX xxxxxx the number of T3AS Administration Shelves to determine the number of
T3AS systems eligible for the Program (T3AS System Software runs in hardware on
the T3AS Administration Shelf). Eligibility is based on the expiration of the
Software Warranty or the expiration of the previous Software Upgrade Program
subscription according to ADA's software warranty records. System warranties
expiring mid-year are pro-rated on a monthly basis. For ease of administration
and billing, a single total regional charge per customer is calculated on the
first day of each new calendar year and valid until the second release is
delivered.
The Program should be continued without interruption from expiration of the
Software Warranty or from the expiration of the previous Software Upgrade
Program subscription. In the event of Software Upgrade Program interruption, a
one-time charge equivalent to the cumulative subscription rates since
interruption may be assessed for the inspection of T3AS systems and application
of any software upgrades required to bring systems to the current release.
If MCI does not subscribe to the Program, software support after the warranty
period will be provided on a time and materials basis in accordance with ADA's
standard charges for technical support (see table above). Charges will apply for
telephone and on-site technical support to diagnose problems and to install
software upgrades which resolve issues or provide features for which
modifications have been incorporated into a current software release. A one-time
software upgrade charge may also apply for software upgrades provided.
* Certain confidential portions of this Exhibit were omitted by means of
blacking out the text (the "Xxxx"). This Exhibit has been filed separately
with the Secretary of the Commission without the Xxxx pursuant to the
Company's Application Requesting Confidential Treatment under Rule 24b-2
under the Securities Exchange Act of 1934.
August 11, 1997 MCI PROPRIETARY AND CONFIDENTIAL Page D-2
38
EXHIBIT E
PRODUCT CHANGE NOTICES
E.1 INTRODUCTION
This procedure establishes a process to notify customers of problems in ADA's
Products that may affect a MCI's service or functions associated with operation
or use of ADA's Products.
Service-affecting problems are those that may:
o Disrupt traffic carried on customer circuits,
o Damage the company's product or associated equipment,
o Disrupt the traffic-carrying functions of other customer
systems interconnected with ADA's product.
Function-affecting problems are those that may:
o Disable or degrade to the point of unusability any
functions of ADA's products.
o Disrupt the non-traffic-carrying functions of other MCI
Systems interconnected with ADA's product.
The process for notifying MCI of potential Service-Affecting problems shall be
initiated as quickly as reasonable after discovery of the issue. Distribution of
MCI notification document must occur within two (2) weeks after the discovery of
the problem and the decision that the problem is potentially service-affecting.
The process for MCI notification of potential Service-Affecting problems is
independent of how the problem was discovered -- whether as the result of field
experience, customer experience or ADA internal testing.
E.2 DEFINITIONS
SERVICE-AFFECTING: The definition of service-affecting includes, but is not
limited to, the following circumstances:
Customer-revenue traffic carried on one or more
telecommunications circuits could be unintentionally disrupted
due to presence of an ADA product.
IN WRITING: Within this procedure, the term "in writing" means by paper copy,
electronic mail or other medium that provides a semi-permanent record that may
be distributed to interested parties.
CUSTOMER SUPPORT ENGINEER: An ADA employee or contractor providing assistance to
customer for the specific purpose of resolving problems with installation,
operation or usage of ADA products. This title and job functions may often be
used synonymously with Field Service Engineer.
FIELD SERVICE ENGINEER: An ADA employee or contractor providing a variety of
on-site or field services to a customer purchasing or using ADA Products. These
services may be proactive (installation, training, planning, project management,
operations support) or reactive (resolving problems, repairing equipment, other
maintenance services). This title and job functions may often be used
synonymously with "Customer Support Engineer."
August 11, 1997 MCI PROPRIETARY AND CONFIDENTIAL Page E-1
39
E.3 PROBLEM IDENTIFICATION
The individual(s) who determine that a potentially Service-Affecting problem
exists should perform the following:
a) Report the problem to the Customer Support, Engineering, and
Quality, in writing, including a description of the problem and the
potential hazards, including resolution or work-around if known.
b) Follow whatever other problem reporting processes exist within the
MCI for reporting and initiating resolution of these problems.
MCI NOTIFICATION OF THE PROBLEM
(For this document, the term "customer notification document" shall be either
Technical Bulletin, Product Change Notice or Product Release Notice.)
After a problem has been identified and recorded, and Engineering and/or
Production have confirmed the existence of the problem the VP Customer Support
or his/her designee will:
a) Assess the severity of the problem and determine the degree of
urgency and the form of customer notification document.
b) Prepare a customer notification document in the form of a Technical
Bulletin, Product Change Notice or Product Release Notice to inform
customers of the problem. Technical Bulletins are the most urgent
notification form and generally focus on a limited number of
specific problems. Technical Bulletins shall include at least the
following information:
i) Date of issue, a Technical Bulletin reference number, company
name, product affected, author, contact party for additional
information.
ii) A description of the problem,
iii) Identification of the systems and/or sites which may
experience the problem
iv) The problem's suspected cause and circumstances,
v) The problem's detection or manifestation during operation,
vi) Work-around or avoidance if known,
vii) A statement of the company's intentions and plan to address
and/or resolve the problem,
viii) Associated Product Change Notice or Product Release Notice,
if any,
ix) In the event that resolution is unknown or indeterminate,
when the Technical Bulletin is issued, a statement shall be
included that gives a target date by which a resolution plan
will be available.
Formats and contents of Product Change Notices are governed by appropriate ADA
standards and are not defined within this document.
Format and contents of Product Release Notices are governed by ADA's customer
service group and are not defined within this document.
August 11, 1997 MCI PROPRIETARY AND CONFIDENTIAL Page E-2
40
E.5 MCI NOTIFICATION OF RESOLUTION
When the resolution or work-around for the problem has been determined and
agreed upon within the company, the VP Customer Support or his/her designate
shall decide on the urgency and form of customer notification document either
Technical Bulletin, Product Change Notice or Product Release Notice.
If the form of a Technical Bulletin is appropriate to the urgency of the
problem, Customer Support will draft a Technical Bulletin to report the
resolution of the problem. This Technical Bulletin must include at least the
following information:
a) A brief description of the problem and those modules or systems
affected.
b) The resolution or work-around.
c) If a work-around, an estimate of when a full resolution will be
found and a description thereof.
d) If a product recall ensues, provide details of an exchange program
and schedule.
e) An offer of on-site assistance if appropriate.
August 11, 1997 MCI PROPRIETARY AND CONFIDENTIAL Page X-0
00
XXXXXXX X
TRAINING COURSES
TRAINING CHARGES
ADA will provide MCI with 10 on-site training courses at any designated MCI
facility. MCI may choose the desired course from the curriculum below. If MCI
desires additional training, ADA offers MCI the training courses listed in this
Exhibit at the prices listed in this Exhibit.
On-site: $*** per student per day or fraction plus instructor's travel and
living expenses. Minimum charge of six students per day. Maximum eight students
per class. Instruction materials are included within charges. Up to 15 days'
advance notice may be required for scheduling of these classes.
TRAINING SERVICES
================================================================================
Description Price
--------------------------------------------------------------------------------
One Training Course $*** per student per day
One Suitcased Training Course $*** per student per day plus
(minimum 6 students) travel & expenses
MCI provides suitable classroom, tables, chairs, nearby T3AS test system
(training is not performed on live systems), blackboard/white board, paper pad
and easel, overhead projector.
ADA Classroom: $*** per student per day or fraction. Minimum of six students per
class. Normal maximum of eight students per class; but may be extended with
ADA's discretion to a maximum of ten students per class. Any customer including
MCI sends fewer than six students may choose to attend scheduled classes with
other students and pay the per student rate as long as minimum class sizes are
met. ADA will schedule classes at its discretion to assure that minimum class
sizes are met. ADA reserves the right to cancel scheduled classes with one
week's notice if minimum attendance is not achieved. Students pay their own
travel and living expenses. Up to 30 days' advance notice may be required for
scheduling of these classes. ADA also publishes an annual head-office training
class schedule.
T3AS OPERATIONS AND MAINTENANCE TRAINING COURSE
Introductory course to the functionality, use and maintenance of T3AS. Day One
covers primarily system capabilities and principles of operation; Day Two
provides hands-on usage, testing and introduction to acceptance test procedure
and DS3 and DS1 rollover procedure.
Target Audience:
Equipment Maintenance Technicians and Managers, Technical Support.
Prerequisites:
1. Familiarity with Central Office Standards and Practices,
2. Familiarity with DS3, DS1, DS0 DDS and VF transmission and test
equipment.
3. Access to a powered T3AS system with VT-100 terminal,
* Certain confidential portions of this Exhibit were omitted by means of
blacking out the text (the "Xxxx"). This Exhibit has been filed separately
with the Secretary of the Commission without the Xxxx pursuant to the
Company's Application Requesting Confidential Treatment under Rule 406 under
the Securities Act of 1933.
August 11, 1997 MCI PROPRIETARY AND CONFIDENTIAL Page F-1
42
4. Two T-Berd 310 and two T-Berd 224 test sets.
Maximum class size:
Eight students
Class Duration:
When coincident with installation and turn-up of a T3AS system, typically one
and a half days - three (3) hours of classroom, three (3) hours of hands-on and
3 hours of acceptance test preparation and run-through.
When presented at ADA Headquarters, the class is more in-depth and lasts about
two and one-half days or twenty-one (21) hours of combined classroom and
hands-on.
Areas covered include the following:
1. System Description
2. Network Architecture
3. TL1 Language
4. Alarms/Exception Reporting
5. TL1/T3AS-Specific Command Usage
6. Removing and Installing Modules
7. DS3 and DS1 Provisioning
8. Acceptance Testing
9. Rollover Procedure
10. Equipage of Remote Shelves
T3AS SYSTEM ADMINISTRATION TRAINING COURSE
This course details the administration tasks necessary to sustain the T3AS
system.
Target audience:
System Administrators, Technical Support, Maintenance Engineering
Prerequisites:
1. Familiarity with Central Office Standards and Practices.
2. Familiarity with Computer-controlled equipment, diskette and tape
management.
Maximum Class size:
Eight Students
Class Duration:
August 11, 1997 MCI PROPRIETARY AND CONFIDENTIAL Page F-2
43
Typically two hours.
Areas covered include the following:
1. TL1/T3AS-Specific Command Usage
2. General Administrative Functions
3. Assignment of TIDs, SIDs, Users, Passwords
4. Communications
5. Provisioning
6. Security
7. Software Upgrade Procedure
T3AS USER TRAINING COURSE
This course introduces students to performance monitoring, access and testing,
and alarm and event management functions of the T3AS with hands-on training.
Hands-on training usually occurs through the customer's Operational Support
Systems (OSS) and in conjunction with customer-developed and provided OSS
course. If no OSS is available, hands-on training occurs with direct interface
to the T3AS system using man-machine interfaces available on the T3AS.
Target audience:
Test Centers,
Service Assurance Centers
PM/Surveillance/Alarm Centers,
Circuit Design and Provisioning Centers and their Managers
Prerequisites:
1. Familiarity with Access and Test of DS1, DS0, DDS or VF.
2. Familiarity with Performance Monitoring Practices,
3. Familiarity with DS3, DS1, DS0 DDS and VF transmission and test
equipment.
4. Access to an installed and powered-up T3AS system with one or more
VT-100 terminal,
5. Test DS3s provided by one T-Berd 310 and one T-Berd 224 test set or
one live (monitored) DS3 with embedded DS1s and DS0s
6. NMA or equivalent surveillance/alarm system connected to T3AS
7. SARTS, REACT, LOGIX or equivalent test system connected to T3AS
8. One or more terminals connected to NMA or equivalent
9. One or more terminals connected to SARTS, REACT, LOGIX or
equivalent
10. One or more terminals connected directly to the T3AS.
Maximum class size:
Eight students
August 11, 1997 MCI PROPRIETARY AND CONFIDENTIAL Page F-3
44
Class Duration:
Typically 4 hours of classroom and 4 hours of hands-on training.
Areas covered include the following:
1. T3AS Architecture and Network placement
2. Access and test functions
3. Conducting HiCap, DDS, VF tests
4. Performance monitoring, thresholds, events, alarms, retrieval,
history
5. Alarm and event report management, severity
T3AS ADMINISTRATOR TRAINING COURSE
This course details the administration tasks necessary to sustain the T3AS
system in a telephone company central office.
Target audience:
System Installers, Maintenance Engineering
Prerequisites:
Familiarity with Central Office Standards and Practices.
Familiarity with Computer-controlled equipment, diskette and tape
management.
Maximum Class size:
Eight Students
Class Duration:
Typically one-half day
Areas covered include the following:
1. TL1/T3AS-Specific Command Usage
2. General Administrative Functions
3. Assignment of TIDs, SIDs, Users, Passwords
4. Communications
5. Provisioning
6. Security
7. Software Upgrade Procedure
T3AS INSTALLATION TRAINING COURSE
This course details the installation tasks necessary to install, turn-up and
perform acceptance tests of T3AS installed in a telephone central office.
August 11, 1997 MCI PROPRIETARY AND CONFIDENTIAL Page F-4
45
Target audience:
System Installers, Equipment Maintenance Engineers who will be
responsible for installation and turn-up of T3AS systems.
Prerequisites:
Familiarity with Central Office Installation Standards and Practices.
Maximum Class Size:
Eight students.
Class Duration:
Typically one-half day of classroom work, preferably at a site that has
an existing T3AS system to illustrate installation details.
Areas covered include the following:
1. T3AS to Network Cabling: DS3s, DS1s, Power, RS232, FADs, TADs,
Remote Links
2. External Timing
3. System Assembly
4. Acceptance Testing
5. Future T3 Provisioning
T3AS PROTOCOL ANALYSIS ACCESS SYSTEM (PAAS) APPLICATION INSTALLATION
This course describes the installation of the T3AS and setup of all the other
devices within the PAAS application.
Target audience:
One installation team - Central Office Technicians and Technical
Support Technicians. Because the standards, specifications, procedures,
policies and equipment are unique to each customer, we recommend that
one team be established to carry out installation of all PAAS systems
within an area.
Prerequisites:
1. Familiarity with Central Office Standards, Practices and
Procedures.
2. Familiarity with DS1 wiring, Packet networks, DDS transmission and
test equipment.
3. Access to DS1 test equipment, asynchronous/X.25 protocol analyzers,
specialized protocol test sets.
4. Access to corporate technical support for packet networks, DCS
systems, central office engineering and wiring records.
Maximum class size:
Three students
August 11, 1997 MCI PROPRIETARY AND CONFIDENTIAL Page F-5
46
Class Duration:
Four hours of classroom
Areas covered include the following:
1. System Description
2. Installation, setup and checkout of the T3AS,
3. Setup and checkout of the network
4. DS1 Wiring to frame-relay test equipment.
5. Removing and Installing Modules
6. DS1 Provisioning
7. Troubleshooting methodology.
8. Communications setup between T3AS, DCS and the control terminals,
9. DS1 FAD links from DCS to T3AS
10. Provisioning the DCS.
11. Acceptance Testing
PAAS MAINTENANCE
This course describes the application, equipment used and fault isolation
techniques of the T3AS system and the other network devices used to support the
PAAS application.
Target audience:
Equipment Maintenance Technicians and Managers, Technical Support.
Prerequisites:
1. Familiarity with Central Office Standards and Practices,
2. Familiarity with DS1, DDS transmission and test equipment.
3. Access to a powered T3AS system with VT-100 terminal,
4. Operational PAAS system.
Maximum class size:
Four students
Class Duration:
Three hours of classroom with hands-on
Areas covered include the following:
1. System Description
2. Network Architecture
3. TL1 Language
August 11, 1997 MCI PROPRIETARY AND CONFIDENTIAL Page F-6
47
4. Alarms/Exception Reporting
5. TL1/T3AS-Specific Command Usage
6. Removing and Installing Modules
7. DS1 Provisioning
8. Troubleshooting methodology.
PAAS USERS
The course gives test center users an overview of the architecture of PAAS,
points to the documentation references needed to identify channels to be tested,
describes and exercises the T3AS test functions and procedures available to the
tester.
The customer is responsible for training staff on usage of the specialized test
equipment and usage of any other terminal programs required to retrieve circuit
information and control the specialized protocol test equipment.
Target audience:
Specialized protocol test center technicians and managers, Technical
Support.
Prerequisites:
1. Familiarity with Central Office Standards and Practices,
2. Familiarity with target protocol (frame relay, ATM, video) test
equipment and transmission equipment.
3. Familiarity with circuit record keeping system and descriptions
(e.g. TIRKS, WORD)
4. Access to a powered T3AS system with VT-100 terminal,
5. Access to an in-service T3AS PAAS system
Maximum class size:
Eight students
Class Duration:
Three hours of classroom with hands-on
Areas covered include the following:
1. System Description
2. Network Architecture
3. TL1 Language
4. TL1/T3AS-Specific Command Usage
August 11, 1997 MCI PROPRIETARY AND CONFIDENTIAL Page F-7
48
CUSTOMIZED TRAINING CLASSES
ADA can develop training courses to suit specific MCI requirements. Charges for
development of these course are quoted in response to requests. Standard
per-student-per-day rates or ADA instructor rates of $**** per day, minimum
charges, and travel and living expenses will still apply.
For additional information or schedules call Applied Digital Access, Inc. at
000 000 0000 (Main),
000 000 0000 (Customer Support)
000 000 0000 (Fax)
and ask for Customer Support.
August 11, 1997 MCI PROPRIETARY AND CONFIDENTIAL Page F-8
