1
EXHIBIT 10.8.1
Confidential Treatment Requested by
Avistar Communications Corporation
MODIFICATION #5 TO PREFERRED SUPPLIER AGREEMENT
DATED JUNE 24, 1997 ("AGREEMENT").
Effective Date of Modification June 27, 2000 ("Modification Date").
The parties hereby agree that as of the Modification Date, certain terms and
conditions of the Agreement, as expressly modified below, shall apply and that
this Modification #5 shall take precedence over the terms contained in the
Agreement and any prior modifications:
1. NEW ORDER: In conjunction with execution of this Modification #5, an
Avistar purchase order will be placed for an additional * (or, as
applicable pursuant to Section 8, * Codec units) ("New Order"). The unit
price for each Codec on the New Order shall be * plus a per unit
maintenance fee of *, for a total of purchase price per unit of *. The per
unit maintenance fee shall replace the annual maintenance fee set forth in
the Agreement, Section 3.4(b).
2. PAYMENT TERMS FOR NEW ORDER: Payment terms extended to Avistar for the New
Order shall be strictly adhered to. Payment terms for all deliveries under
the New Order shall be * from shipment and Avistar's receipt of invoice.
3. DELIVERY OF NEW ORDER: Codec units will be shipped in accordance with the
following estimated delivery schedule, as updated from time to time by
Avistar. Unless otherwise mutually agreed in writing, Tandberg will ship
all Codec units under this New Order by no later than *:
# OF UNITS OF THE * TO BE SHIPPED EXT. SHIP DATE
--------------------------------- --------------
* *
4. MAINTENANCE AND WARRANTY FOR NEW ORDER: All Codec units delivered pursuant
to this Modification #5 shall be subject to a * warranty and maintenance
support period from shipment ("Term"). Maintenance services shall be as
described in the Agreement, including all software upgrades (not deemed to
be products in their own right) issued during the Term.
5. ADDITIONAL ORDERS FOR MODEL * CODECS: Avistar acknowledges that Tandberg
wishes to cease normal production cycles for the Tandberg * Codec and has
provided Avistar a proposal for an enhanced replacement version as further
described in Section 6 below. The parties agree that in the event Avistar
wishes to continue purchasing additional * Codec units, Tandberg will
manufacture them for Avistar until the end of the *, at the prices
indicated in Section 1 above, provided that Avistar provides Tandberg with
(i) a * lead-time from order placement to delivery; and (ii) a minimum
order of * units.
6. ENHANCED REPLACEMENT *: Tandberg has suggested it's * as alternative
replacement Codecs to Avistar in place of the * codecs. The * will be
available for delivery by no later than *. The functionality of the * shall
have no less than the functionality and features of the * Codec at a price
not to exceed * (including maintenance). A * will also be available to
Avistar at a price not to exceed * (including maintenance). The parties
will negotiate in good faith the prices for the Enhanced Codecs beginning
in * based on order quantity, etc.
7. TESTING UNITS: To facilitate the testing and development effort required to
ensure Avistar's ability to use the * units proposed by Tandberg, Tandberg
will, at Avistar's request, provide Avistar up to * loaner units of each
model of Codec for development and testing purposes. These test units will
either become part of the first order for * units, or will be returned to
Tandberg by *. In the case of * units, the parties may mutually agree to
(i) an extension to the loaner term for these units if Avistar is required
to provide support for the * (ii) Avistar's return of * of it's existing
* units in exchange for the * units.
8. INTERIM SUBSTITUTION OF * CODEC: Tandberg may, at its discretion, ship *
Codecs to fulfill this Order provided that (i) the * software is installed
to ensure compatibility with the Avistar System and that the Codec is
'packaged in such a way so as not to expressly indicate it is not a * unit.
In the event *, Avistar will ensure that the * capabilities are not
utilized without first paying Tandberg a * upgrade fee.
9. ADDITIONAL PRODUCTS, PACKAGING AND SHIP-TO LOCATIONS: At Avistar's request,
Tandberg agrees to package the Codec in a bundle to include certain
additional hardware and cables consistent with the Xxxx-of-Material options
attached hereto as Exhibit 1 ("Avistar BOM"). Certain Avistar BOM options
include * units at * per unit. The prices for the additional components of
the Avistar BOM are detailed on Exhibit 1. When ordered separately from
Codec units, the * units must be ordered in minimum increments of * units.
At no additional charge to Avistar, bundled shipments in minimum increments
of * units, will be sent to one of the following two Avistar Locations, as
specified by Avistar:
US: 000 XXX XXXXXXX XXXX, XXXX XXXX -- XX
---------------------------------------------------------------
UK: TO BE PROVIDED
---------------------------------------------------------------
Except as expressly modified by this Modification #5, all terms and conditions
of the Agreement shall remain in full force and effect until *. The parties
agree that this Modification #5 may be executed via facsimile and that it shall
be considered equivalent to an executed original when signed (via facsimile) by
both parties; nevertheless, any one of the parties may require the follow-up
exchange of originals in hardcopy by so requesting in writing within five (5)
days of facsimile execution.
IN WITNESS WHEREOF, THE PARTIES HAVE CAUSED THIS MODIFICATION #5 TO BE EXECUTED
BY THEIR AUTHORIZED REPRESENTATIVES:
AVISTAR SYSTEMS CORPORATION TANDBERG INC.
By:
-------------------------------------- -----------------------------------
Printed Name/Title: Xxxx Xxxxxxx, Printed Name/Title:
Director of Contracts
--------------
* Confidential portions omitted pursuant to a confidential treatment request
and filed separately with the Securities and Exchange Commission.
