1
EXHIBIT 10.41
PARADYNE
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MARKETING & LICENSE AGREEMENT ***Text Omitted and
BY AND BETWEEN NETSCOUT SYSTEMS, INC. Filed Separately
AND PARADYNE CORPORATION Confidential Treatment
AMENDMENT NUMBER 2 Requested Under
PAGE 1 OF 2 17 C.F.R. Sections
DATE 11/04/98 200.80(b)(4)
200.83 and
230.406
NETSCOUT SYSTEMS, INC.
0 XXXXXXXXXX XXXX
XXXXXXXX, XXXXXXXXXXXXX 00000
The Marketing & Licensing Agreement dated and signed January 26, 1998
(hereinafter the "Agreement") by and between NetScout Systems, Inc.
(hereinafter "NetScout") and Paradyne Corporation (hereinafter "Paradyne")
shall be amended as follows:
1. Section 1.8 shall be deleted in its entirety and replaced by the following:
1.8 "Revision" shall mean any correction, modification, maintenance
release, update, enhancement, and/or new version of the Licensed
Product developed solely by NetScout.
2. Section 21.1 shall be deleted in its entirety and replaced by the following:
21.1 Term. The initial term of this Agreement shall be five (5) years from
the date set forth in the first sentence of this Agreement. Prior to
the end of this term, the parties shall meet and negotiate in good
faith an extension of this Agreement. Failing to agree upon such
extension, this Agreement shall terminate one hundred and eighty days
after the initial term. During such 180 day period, and
notwithstanding the terms of Section 2.1.3 of this Agreement, Paradyne
shall in preparation for the termination of the Agreement, have the
right to develop, have developed, market and sell, and/or establish
OEM and/or technology licensing agreements for RMON-based technologies
for the purpose of offering such RMON products to customers to sustain
and enhance the market position of Paradyne's RMON products without
detriment due to the pending or actual termination of the agreement.
3. The following Section 21.9 shall be appended to the Agreement:
21.9 Continuing rights. Notwithstanding anything in this Agreement to the
contrary, in the event of termination under this Section 21 or Section
23.3 of this Agreement Paradyne shall have the right to continue to
use and distribute the Licensed Product as necessary (1) to ship any
outstanding orders, (2) to meet ongoing contractual commitments, and
(3) to meet product requirements of Paradyne customers who have an
installed base of the Resale Products and require continued supply.
Such shipments shall be subject to royalties under Schedule A except
where termination is made necessary due to NetScout's default.
Further, in the event royalties are paid, NetScout shall agree to
provide reasonable continued support for bug fixes and maintenance of
the Licensed Product. Paradyne shall further have the right to use and
distribute the Licensed Product as required to support those Resale
Products having shipped prior to the date of final termination or
under the provisions of this Section.
Paradyne Corporation - PROPRIETARY
Use Pursuant to Company Instructions
Amendment Number 2
Marketing and Licensing Agreement, NetScout Systems, Inc.
11/04/98
Page 1 of 2
2
All other terms of the Agreement remain the same.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment on the
date(s) set forth below.
PARADYNE CORPORATION NETSCOUT SYSTEMS, INC.
By: /s/ Xxxxxx Xxxx By: /s/ Xxxxxx (?)
-------------------------------- ----------------------------------
Title: CEO Title: VP, Business Development
----------------------------- -------------------------------
Date: 11/11/98 Date: 11/11/98
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Paradyne Corporation - PROPRIETARY
Use Pursuant to Company Instructions
Amendment Number 2
Marketing and Licensing Agreement, NetScout Systems, Inc.
11/04/98
Page 2 of 2
3
[PARADYNE LOGO]
________________________________________________________________________________
Marketing & License Agreement
By and Between NetScout Systems,
Inc. and Paradyne Corporation
Amendment Number 1
Page 1 of 10
Date 03/__/98
NetScout Systems, Inc.
0 Xxxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxxxx 00000
Marketing & License Agreement dated and signed January 26, 1998 by and between
NetScout Systems, Inc. and Paradyne Corporation will be amended as follows:
1. Section 1.13: Add the words "or a unique customer application" before "that
cannot be resolved by Paradyne."
2. Section 3.1.3: Add the words "and its Authorized Service Providers" after
the word "Paradyne."
3. Section 3.1.4: Add the words "and Paradyne's Authorized Service Providers"
before the word "Customers."
4. Section 6.1: Add the words "for Licensed Product and Resale Product" before
the words "via a telephone support service as set forth in Exhibit D."
After the words "a paging service after hours, on weekends and holidays"
add the following sentence: "NetScout will make best efforts to reply to
the page within one (1) hour." Change reference to "Tier 1 and Tier 2
Support" to "Tier 3 Support."
5. Section 6.4: Delete last sentence and replace with the following sentence:
"In the event NetScout discontinues manufacture and license of the Licensed
Product, NetScout agrees to continue support and maintenance services for a
period of one (1) year for the software and for the period of five (5)
years for the hardware from such discontinuance.
6. Section 7.1: Add the following at the end of Section 7.1: "Exhibit F
outlines training classes, their locations, costs (if applicable), length
of courses, and complete description of the courses. In the event that
there are seats available for any of the above-mentioned training that are
unfilled by Paradyne employees, such seats may be filled by Paradyne's
Authorized Service Providers."
7. Section 8.2: Add the words "and Authorized Service Provider evaluations"
after the words "sales demonstrations."
Paradyne Corporation - PROPRIETARY
Use Pursuant to Company Instructions
Marketing & License Agreement, NetScout Systems, Inc.
Amendment Number 1
4
8. Section 8.3: Add the word "day" after "ninety (90)."
9. Section 11.1: Delete the entire last sentence and replace with the
following: "Notwithstanding the preceding sentence, in the event Paradyne
elects to price the RMON feature set separately, the NetScout royalty shall
be the [***] percent [(***%)] of the Paradyne price for the RMON feature or
[***] for each version of embedded RMON as listed in Exhibit A."
10. Section 12.3: Replace entire section as follows: "Purchase Orders. Resale
Product orders may be made via purchase orders, or customer drop ship orders
confirmed in writing by facsimile. Purchase orders shall include the
following details: Paradyne's part number for NetScout's products,
description, quantity, destination, delivery date(s), PO dollar total,
preferred shipper and customer number for billing."
Additionally, add the following paragraphs:
"At Buyer's request Seller shall drop ship orders for product to Buyer or
Buyer's customer at locations specified by purchase orders as defined,
above."
"NetScout will provide proof of delivery for all shipments to Paradyne's
customers, if requested by Paradyne and if specified shipper provides same
upon request from NetScout. NetScout will not ship any of Paradyne's
purchase order short of any parts on the purchase order without the approval
of Paradyne."
"Shipment Acknowledgment"
"Seller will provide Buyer with a shipment acknowledgment form within
twenty-four (24) hours of the shipment to the Buyer or Buyer's customer.
Seller will include, at a minimum, the serial number of the unit, the date
shipped, the part number and quantity shipped, the carrier name, and the
waybill number on the shipment acknowledgment form."
"At no time may NetScout reschedule any previously committed ship dates
without ten (10) days advance written authorization by Paradyne."
11. Add "Section 12.13 Forecast, Buyer will provide a rolling monthly forecast
of Buyer's demand for the Product with visibility for the next six (6)
months. This forecast will be for planning purposes only."
12. Section 12.4: Delete the second sentence and replace it as follows:
"NetScout's normal lead-time for NetScout Resale hardware products is
twenty-one (21) days from order replacement. NetScout's normal lead-time for
NetScout Resale software products is seven (7) days from order placement.
Paradyne Corporation - PROPRIETARY
Use Pursuant to Company Instructions
Marketing & License Agreement, NetScout Systems, Inc.
Amendment Number 1
--------------------
*** Confidential Treatment Requested
5
13. Section 12.5: Replace in its entirety with the following:
"Cancellation/Reschedule. Paradyne reserves the right to reschedule or
cancel PO's or parts of PO's without penalty, provided that the requested
reschedule or cancellation is made more than ten (10) days from the
scheduled delivery of the products. Any cancellation requests made inside
the ten (10) day window shall be subject to [***] percent [(***%)]
cancellation fee. Paradyne also reserves the right to reschedule PO's or
parts of PO's within ten (10) days of the scheduled delivery date provided
that the requested delivery date does not extend beyond ninety (90) days
from the original scheduled delivery date."
14. Section 12.6: Add "(subject to Section 17.1, Product Discontinuance)"
after "attached price list" in the first sentence.
15. Section 12.7: Delete paragraph one in its entirety and replace as follows:
NetScout warrants the Resale Products for a period of one (1) year from a
Customer's acceptance and that the Resale Products will be free from
defects in material and workmanship. Paradyne's inspection, approval,
acceptance, use of or payment for all or any such Resale Product shall be
deemed not to constitute a waiver of any warranty or of any term or
condition hereof. NetScout shall repair or replace, at no charge, any
Resale Products returned to NetScout during the warranty period. In the
event that the above remedies are not reasonably available, NetScout shall
refund the purchase price. This is NetScout's sole remedy to Paradyne
and/or End Users under this Agreement for warranty claims.
Add the words, "EXCEPT FOR THE SECTION ENTITLED "EPIDEMIC", before the
words "THE WARRANTIES MADE IN THIS PARAGRAPH ARE MADE IN LIEU OF ALL OTHER
EXPRESS WARRANTIES, WHETHER ORAL OR WRITTEN."
16. Section 12.10: Change "thirty (30) business days" to "forty-five (45)
business days" and add ", and will make best efforts to provide within
thirty (30) days of the close of each calendar quarter," before "Point of
Sale...." Add "the state or the" before the word "zip" in the last
sentence.
17. Section 12.11: Add "or its designated Authorized Service Provider" after
the word "Paradyne" in the first sentence. Add this sentence at the end of
this section: "In addition, out of warranty maintenance agreements for the
Resale Products may be offered by Paradyne's Authorized Service Providers."
18. Add Section 12.14 Repair Period: "Seller will effect the
repair/replacement and return the item(s) to Buyer within fifteen (15)
days after receipt of the defective item(s); however, Seller will respond
to emergency situations by immediately shipping Product on hand within
forty-eight (48) hours. At the cost identified in Exhibit D, Seller agrees
to repair or replace a particular type of Product for a period of five
Paradyne Corporation - PROPRIETARY
Use Pursuant to Company Instructions
Marketing & License Agreement, NetScout Systems, Inc.
Amendment Number 1
--------------------
*** Confidential Treatment Requested
6
(5) years following delivery of the last unit of such Product delivered
under this Agreement. Seller agrees to provide and maintain an adequate
stock of parts peculiar to the Product during this time to effect such
repair."
19. Add "Section 12.15 Quality: The Resale Products shall meet the quality
requirements of Exhibit E of this Agreement.
20. Section 18.4: Delete last sentence and replace with "However, such rights
will not become effective until such time as NetScout dissolves or ceases
to do business.
21. Section 18.5: Change reference to "Section 21, Termination" to read
"Section 21, Term and Termination."
22. Section 18: Add sub-section, Agreement to Negotiate Rights to the Resale
Produce:" Under the following conditions the parties agree to enter into
good faith negotiations for Paradyne to acquire the rights to manufacture,
further develop, market, service and sell NetScout Resale Products.
Discontinuance of the Resale Products defined in Exhibit A, provided
no functionally equivalent substitute is made available at or below
the specified price.
NetScout becomes insolvent, or ceases to honor its commitment to
deliver products under the terms of this Agreement.
Material Breach of this Agreement by NetScout that is not cured within
the time period as specified in Section 21, Term and Termination.
Notwithstanding the foregoing, the obligations of NetScout under this
Section are conditional upon Paradyne's ability to secure such
manufacturing usage licenses or other proprietary rights of third
parties, if any, as may be required to manufacture such Product.
NetScout agrees to provide reasonable assistance to Paradyne to secure
such rights."
23. EXHIBIT D: Add "and its Authorized Service Providers" after the word
"Paradyne" in the first sentence. Within the heading "Repair & Maintenance
Charges add "applicable to Paradyne and its Authorized Service Providers"
before the words "(single repair)". Within the heading "Maintenance
Agreements (h/w & s/w)" add "available to Paradyne and its Authorized
Service Providers". Under the heading "Repair Services" delete the last
sentence and replace with "Paradyne or Paradyne's customer shall be
responsible for transportation expenses to NetScout's facilities and
NetScout will be responsible for transportation expenses back to Paradyne
or Paradyne's customer." Under the heading "Priority Shipments" change
"twenty-four (24) hours" to "forty-eight (48) hours."
24. The Quality Agreement by and between the parties shall be attached hereto
and made a part of this Agreement as Exhibit E.
Paradyne Corporation - PROPRIETARY
Use Pursuant to Company Instructions
Marketing & License Agreement, NetScout Systems, Inc.
Amendment Number 1
7
25. All other terms and conditions of the above stated Agreement remain
unchanged.
26. SIGNATURE
IN WITNESS WHEREOF, the parties hereto have executed this Amendment on the
date(s) set forth below.
PARADYNE CORPORATION NETSCOUT SYSTEMS, INC.
By: /s/ J. (?) By: /s/ Xxxxxx (?)
--------------------------------- ------------------------------
Title: SUP Title: VP Business Development
------------------------------ ---------------------------
Date: 3/20/98 Date: 4/22/98
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Paradyne Corporation - PROPRIETARY
Use Pursuant to Company Instructions
Marketing & License Agreement, NetScout Systems, Inc.
Amendment Number 1
8
EXHIBIT E
QUALITY
1.0 QUALITY ASSURANCE
Notwithstanding the post-acceptance obligations of Seller, Buyer has a
significant interest in the quality of the Product. Because the Product has a
useful life expectancy greater than the warranty obligation period and because
of the good will lost by malfunctioning Products, even though they may be
corrected at Seller's expense, it is agreed by Buyer and Seller that without
limiting or abridging Buyers rights to inspect the Product prior to acceptance
or Seller's post-acceptance obligations, the following provisions shall apply
to ensure acceptable quality for Products manufactured for Buyer under the
terms of this Agreement:
1.1 QUALITY CONTROL MONITORING & SOURCE INSPECTION
Buyer reserves the right, at any time during the term of this agreement,
with five (5) calendar days prior notice and subject to product availability,
to place one or more personnel in SELLER facilities to carry out inspection and
acceptance tests, process certifications, review of quality data, and other
functions Buyer may deem reasonably necessary to maintain quality objectives.
Personnel authorized by Buyer shall be empowered to reject the material
intended for the delivery to Customers in the event that such material fails to
meet required specifications or acceptance tests. In the event that the
Representative ascertains that an item of Product is defective, said
Representative will advise Seller's authorized personnel and such defect shall
be remedied prior to shipment. Rejected lots (or Products) will then be
corrected and re-submitted for re-inspection at Seller's expense.
Buyer may, at its option, implement a sampling inspection with lot
rejection in accordance with an appropriate sampling plan and inspection
procedure to be accomplished at Seller's facility. If any inspection or test is
made on Seller's premises, Seller shall, without additional charge, provide all
reasonable facilities and assistance for the safety and convenience of Buyer's
inspector subject to the security and safety regulations existing at the
facilities.
1.2 ACCEPTANCE TESTS
Acceptance test procedures for final manufacturing testing and for product
acceptance purposes will be mutually agreed upon buy the Buyer and Seller.
1.3 WORKMANSHIP STANDARDS
All Products shall be in compliance with the Buyer's workmanship
standards, IPC-A-610, as a minimum criteria of workmanship.
1.4 QUALITY CONTROL SYSTEM & ISO 9000 COMPLIANCE
Seller shall maintain the quality control system mutually agreed upon at
the Effective Date of this contract and as specified in the Specifications.
Seller shall, with every reasonable and timely effort, apply for and/or maintain
ISO 9001 registration. Seller is expected to use its reasonable best efforts to
attain and maintain acceptable ratings resulting from any future quality system
assessments.
Paradyne Corporation - PROPRIETARY
Use Pursuant to Company Instructions
Marketing & License Agreement, NetScout Systems, Inc.
Amendment Number 1
9
1.5 SELLER/BUYER CONTINUOUS IMPROVEMENT EFFORTS
Buyer and Seller mutually agree to develop a continuous improvement plan in
an effort to reduce overall costs and improve Quality in both Processes and
Products that will mutually benefit both parties in the areas of:
a. On Time Shipments as measured by requirements set forth in Contract.
b. Repair Data, including DOAs, Infant mortality and Root Cause Analysis.
c. Electronic Data Interchange (EDI).
d. Utilizing freight carriers designated by Buyer in Buyer's Corporate
Routing Guide.
1.6 NOTIFICATION OF QUALITY ISSUES
Buyer is to be notified within 24 hours of catastrophic failures affecting
customer safety or equipment performance of Buyer equipment. These failures
include, but are not limited to, Product failures which greatly exceed the
normal failure rate of Buyer product, or line down conditions at SELLER which
may impact the timely shipment or quality of Buyer products. Buyer product
produced at SELLER must maintain a demonstrated confirmed DOA defect rate not
exceeding SELLER supplied MTBF calculations for Product.
1.7 CORRECTIVE ACTION FOR QUALITY ISSUES
SELLER is expected to maintain a functioning and documented Quality system
to provide timely and effective corrective action(s) regarding quality issues.
Upon request from Buyer, SELLER is to determine the root cause of quality
defects, ensure that these defects are prevented from shipping to customers, and
provide effective corrective action to prevent the recurrence of these, or
similar, defects. Buyer reserves the right to stop shipment of Buyer product
from SELLER facilities until such actions deemed necessary to corrective the
defect have been completed.
1.8 INSPECTION AT DESIGNATED DELIVERY LOCATION
Within 30 days of the receipt of any Product at its designated delivery
location, Buyer may submit such Product to the criteria as set forth in the
agreed upon Specifications. Buyer shall be entitled to reject any product that
fails to conform to the Purchase Specifications. Notice of any such rejection
shall be issued within five (5) business days by Buyer to Seller.
Upon rejection, Buyer will notify Seller of such rejection and cause for
rejection and return the entire shipment or any portion, to Seller. Seller
accepts all cost of rejected lost shipping charges back to Seller and Buyer, any
insurance costs, all risk of loss [F.O.B. Destination], and for rejected
Products. If Seller does not receive such notice of any such rejection from
Buyer within thirty [30] calendar days after shipment of Product, such Product
shall be deemed accepted by Buyer for purposes of this Section of this
agreement. Any Products returned under this Section of the agreement will be
shipped by a carrier selected by Seller, or Seller will be liable for freight
charges at a rate equivalent to Buyer's documented freight rates. If it is
determined that any Products returned by Buyer under this Section of this
agreement are conforming to the Specification then (i) Seller shall utilize such
Products for Buyer's releases and Buyer shall, notwithstanding anything to the
contrary in this Section, pay for the expenses associated with Buyers original
return of such Products to Seller under this Section. Notwithstanding the
foregoing, damage to Products caused by Buyer's Shipper shall not be considered
a nonconformity to the Specification.
1.9 FIRST INSTALL SUPPORT
Seller will provide, at Buyer's request, at locations selected by Buyer and
at no cost to Buyer, technically competent personnel and any necessary spare
parts to assist in the identification and resolution of any performance problems
which jeopardize the progress of the installations of the Product in the
continental United States. Seller will also provide, at Buyer's request, any
performance information available which could assist Buyer in an evaluation of
Product performance.
Paradyne Corporation - PROPRIETARY
Use Pursuant to Company Instructions
Marketing & License Agreement, NetScout Systems, Inc.
Amendment Number 1
10
EXHIBIT F
NETSCOUT TRAINING
The following is a list of available NetScout Training Classes:
Available through March 31, 1998 from NetScout Training Department:
NETSCOUT MANAGER 5.0 - 3 DAY CLASS. STANDARD TUITION: $[***] PER STUDENT
This course is intended to provide network administrators and support
specialists with the knowledge and skills needed to extract the extensive
network monitoring data available through the deployment of NetScout
Manager in combination with NetScout RMON and Enterprise RMON probes.
At the conclusion of the class, participants will be able to:
Install and configure NetScout probes and NetScout Manager
Configure report data polling, report templates, and produce reports
created from polled data
Understand how RMON is used in managing and monitoring Ethernet, Fast
Ethernet, CDDI, FDDI, Token Ring, WAN and switched networks.
NETSCOUT WEBCAST - 1 DAY CLASS. STANDARD TUITION: $[***] PER STUDENT
At the conclusion of the class, participants will be able to:
Install and configure NetScout WebCast Software
Configure report data, report templates, and product reports created
from NetScout SQL database over the Web.
Starting April 1 Chesapeake will be NetScout's Authorized Training Partner
and the above two classes will be combined into
NETSCOUT MANAGER 5.0/WEBCAST TRAINING - 4 DAY CLASS, STANDARD TUITION $[***]
Starting April 1 NetScout will begin offering a class for partners such as
Paradyne:
NETSCOUT MANAGER FOR PARTNERS - 2 DAY CLASS, STANDARD TUITION $[***]
This course is intended to provide partner sales, sales engineers and
service support specialists with the knowledge and skills needed to extract
the extensive network monitoring data available through the deployment of
NetScout Manager in combination with NetScout RMON and Enterprise RMON
probes.
At the conclusion of the class, participants will be able to:
Use NetScout Manager to monitor network problems. The direction of
this new class will be to solve problems. It will be workstation
independent working more with the functionality of monitoring network
segments and trouble shooting problems, less on how to do the basics
such as installation and Unix command line actions.
NETSCOUT MANAGER ADVANCED TRAINING - 5 DAY CLASS, STANDARD TUITION $[***]
(Starting in May)
This course is intended to provide partner Technical Assistance Center
support specialists and Trainers
with the knowledge and skills needed
to provide first and second level TAC support to customers
Paradyne Corporation - PROPRIETARY
Use Pursuant to Company Instructions
Marketing & License Agreement, NetScout Systems, Inc.
Amendment Number 1
----------------------
*** Confidential Treatment Requested
11
and authorized distributors and to Trainers developing course
materials and may be required to answer questions and use NetScout
Manager in ways not covered in a basic class.
Paradyne Corporation - PROPRIETARY
Use Pursuant to Company Instructions
Marketing & License Agreement, NetScout Systems, Inc.
Amendment Number 1
12
MARKETING & LICENSE AGREEMENT
BY AND BETWEEN
NETSCOUT SYSTEMS, INC.
AND
PARADYNE CORPORATION
January 26, 1998
13
This Marketing & License Agreement ("Agreement") is made this 26th day of
January, 1998, by and between NetScout Systems, Inc., a Delaware corporation
having its principal place of business at 0 Xxxxxxxxxx Xxxx, Xxxxxxxx, XX 00000
("NetScout") and Paradyne Corporation, a Delaware corporation having its
principal place of business at 0000 000xx Xxxxxx Xxxxx, XX Xxx 0000, Xxxxx, XX
00000-0000 ("Paradyne"), (mutually hereinafter referred to as the "Parties").
WHEREAS, NetScout and Paradyne have entered into a memorandum of understanding,
dated December 2, 1997 ("MOU"), for the purpose of summarizing the discussion
between the Parties concerning the integration and co-marketing of each other's
products and technologies; and
WHEREAS, the MOU further sets forth the agreement of the Parties respecting the
arrangement, engineering commitments, training, support, licensing and
royalties obligations; and
WHEREAS, it is the Parties' intentions to enter into a definitive written
agreement no later than thirty (30) days from the date of the MOU, which shall
incorporate the terms and conditions governing such activities as set forth in
the MOU, and shall further define and establish the respective
responsibilities, obligations and rights concerning the transactions associated
with such activities and contemplated by the Parties hereunder, and
WHEREAS, it is the Parties intentions to enter into good faith negotiations to
complete an amendment to this Agreement incorporating mutually acceptable
manufacturing terms within thirty (30) days of the signing of this Agreement.
Now, in consideration of the covenants and premises contained herein, the
parties agree as follows:
1 Definitions
The following words, terms or phrases, where initialized with a capital
letter, shall have the meanings indicated in this section.
1.1 "Affiliate" shall mean an entity that controls, is controlled by or is
under common control with Paradyne (with "control" meaning ownership
of more than fifty percent (50%) of the voting stock of the entity or,
in the case of a non-corporate entity, an equivalent interest).
1.2 "Business Day" shall mean Monday through Friday, excluding local
holidays.
1.3 "Documentation" shall mean a functional description of the Licensed
Product, direction for installation, and use, and any other
explanatory material necessary for a user to perform all of the
functions of the Licensed Product.
1.4 "Customer" for the purpose of this Agreement shall mean the person(s)
or entity properly licensed to use the Licensed Product."
1.5 "Licensed Product" shall mean any NetScout software product/NetScout
RMON feature set embedded into a Paradyne Hardware product (English
and all Foreign Language versions), in object code form, all future
Revisions to such Licensed Product, and all Documentation associated
with such Licensed Product.
1.6 "Paradyne" shall include its Affiliates.
1.7 "Problem" shall mean a demonstrable instance of adverse and incorrect
operation of a Licensed Product due to a material non-conformance to
the Licensed Product's specification or Documentation.
1.7 "Resale Product" shall have the meanings as set forth in Exhibit B.
Marketing & License Agreement Paradyne and NetScout Confidential page 1
NetScout and Paradyne Use Pursuant to Company Procedures 01/26/98
14
1.8 "Revision" shall mean any correction, modification, maintenance
release, update, enhancement, and/or new version of the Licensed Product.
1.9 "Software" shall mean all computer programs, databases and
firmware, (i) embedded in the Products or (ii) sold on a stand-alone basis as
Products, and all Documentation and technical specifications associated
therewith.
1.10 "Source Code" shall mean (i) all Software source code which has
been provided by NetScout (including from time to time each upgrade, enhancement
or other modification), together with, to the extent in existence, (A) any
pertinent commentary or explanation that may be necessary to render such Source
Code understandable and usable by a trained computer-programming expert, (B)
such system documentation, statements of principles of operation and schematics
as are necessary or useful for the effective understanding of such Source Code,
and (C) all devices, programming or documentation (including compilers,
workbenches, tools and higher-level proprietary languages) employed by NetScout
for the development, maintenance and implementation of such Source Code.
1.11 "Tier 1 Support" shall mean the services provided by Paradyne in
response to a Customer's initial notification of a suspected Problem.
1.12 "Tier 2 Support" shall mean the provision of diagnostics provided
by Paradyne to determine the severity of the Problem, attempt to reproduce and
correct the suspected Problem, or determine that the Problem cannot be
reproduced.
1.13 "Tier 3 Support" shall mean the provision of backup technical
and/or engineering services by NetScout the resolve a Problem that has been
determined to be, or is highly probable to be, the result of a design or
manufacturing defect that cannot be resolved by Paradyne.
2. THE ARRANGEMENT
2.1 Paradyne agrees, during the term of the Agreement, to conform to
the following:
2.1.1 to exclusively utilize NetScout's RMON network
management Software and related agent Software
applications in/with its RMON products during the term
of this Agreement; and
2.1.2 to market and offer for sale to customers the NetScout
Manager Plus Software and other NetScout software
modules as available, and exclusively recommend for
sale to customers head end probes in all FrameSaver
FRAUs with RMON technology networks, excepting sales to
customers whose RMON technology networks incorporate
hardware or software which has been purchased form
other source (e.g. through Cisco); and
2.1.3 not to: (i) directly or indirectly develop RMON-based
technologies which are competitive to NetScout, (ii)
position the FrameSaver or any other Paradyne product
as a probe; (iii) incorporate RMON support in any of
their network management platforms; or (iv)
manufacture, OEM or acquire third party probe products
for the purpose of offering such products to customers
as competitive products to NetScout's probes
2.2 NetScout agrees, during the term of the Agreement, to conform to
the following:
Marketing & License Agreement Paradyne and NetScout Confidential page 2
NetScout and Paradyne Use Pursuant to Company Procedures 01/26/98
15
2.2.1 to reference Paradyne as a strategic partner for DSU's,
DSL's and Multiplexers; and
2.2.2 to provide Paradyne preference when sourcing DSU's or
integration of DSU technology into NetScout probe products,
provided Paradyne is meeting its obligations under this
Agreement and Paradyne's proposal is market competitive and
meets NetScout's functional specifications as defined by
NetScout's timely delivered Request for Proposal.
3. LICENSE
3.1 In accordance with the terms and conditions of this Agreement, Net
grants to Paradyne, and Paradyne accepts from NetScout, a worldwide,
perpetual, non-exclusive right and license to promote, market, sell,
license and distribute the Licensed Product as set out below. The
following terms and conditions govern the license granted by
NetScout, and NetScout's obligations thereunder.
3.1.1 NetScout has, upon execution of the MOU, provided Paradyne
with the Source Code for the Licensed Product for the
limited purpose of enabling Paradyne to port/embed the
following groups of RMON into its FrameSaver endpoint
devices:
3.1.1.1 RMON 1 - Statistics Group; RMON 1 - Alarm Group;
RMON 1 - Events Group; RMON 2 TOPN - IP Layer Host
Group, RMON 2 - Protocol Director Group; RMON 2 -
Protocol Distribution Group; NetScout WAN
Enterprise Extensions; and RMON 2 - User History
Group.
3.1.1.2 Paradyne shall further implement enhancements to
its FrameSaver FRAU's to provide mutually agreed
to MIB extensions which shall allow NetScouts
Manager Software access to Paradyne's patented
technology. Such patented technology provides
non-disruptive real-time monitoring of frame relay
parameters (e.g. latency on a per DLCI basis,
dropped packets and mapping of DLCI's to remote
end points.).
3.1.1.3 Paradyne expressly agrees to treat the Licensed
Product Source Code with the same degree of care
that Paradyne treats its own confidential source
code. Paradyne shall limit access to the Source
Code for the Licensed Product to Paradyne
employees to the extent that such employees need
access to perform their respective duties related
to embedding of the Licensed Product in
Paradyne's Framesaver endpoint devices.
3.1.2 Paradyne shall include license terms and conditions
substantially similar to those set forth in Exhibit C with
each Licensed Product sold.
3.1.3 Paradyne may use the Licensed Product for support
evaluation, maintenance, and other activities connected with
service of the Licensed Product including, without
limitation, the provision of updates and Revisions to
Customers.
3.1.4 Paradyne may copy and distribute Documentation for the
Licensed Product. Paradyne agrees to maintain NetScout's
copyright notices or
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16
trademarks on all copies of Documentation that is
distributed to Customers.
3.1.5 Paradyne agrees: (i) not to create or attempt to create by
reverse engineering, disassembly, decompilation or
otherwise, the source code or internal structure, or
organization of the Products, or any part thereof, from any
object code or information that may be made available to
it, or aid, abet or permit others to do so; and (ii) not to
remove any Product identification or notices of any
proprietary or copyright restrictions from the Product or
any support material, except for one (1) archival copy.
3.1.6 Paradyne is prohibited from making any modifications,
adaptations, enhancements, changes, or derivative works of
the Licensed Product unless authorized in writing by
NetScout. Notwithstanding the preceding sentence, Paradyne
is expressly authorized to perform whatever work is
necessary or advisable by NetScout to embed the Licensed
Product in Paradyne's FrameSaver products as defined below.
To the extent NetScout authorizes the development of
derivative works, Paradyne shall thereafter retain title to
the derivative work developed by or on behalf of Paradyne,
provided that NetScout shall retain title to the underlying
work upon which such derivative work is based.
4 TITLE AND RIGHTS TO THE LICENSED PRODUCT
4.1 The Licensed Product and Revisions to the Licensed Product are
proprietary to NetScout, and NetScout shall retain all right,
title and interest in and to the Licensed Product including all
rights under applicable patents, copyrights, trademarks and
trade secrets, and to any foreign language version of the
Licensed Product developed or acquired by NetScout.
4.2 NetScout represents that it has at the time of execution of this
Agreement, and will continue to maintain during the term of this
Agreement, the full right and authority to grant this license,
and that neither this license nor performance under this
Agreement does or shall conflict with any other agreement or
obligation to which NetScout is a party or by which it is bound.
4.3 To the extent necessary to give effect to this Agreement, the
licenses granted to Paradyne shall include rights under any
applicable patents, copyrights, trademarks and trade secrets
belonging to NetScout or which NetScout has acquired or may
acquire.
4.4 Paradyne agrees to include NetScout's copyright notice on all
copies of the Licensed Product in substantially the following
form: "portions of this software licensed by NetScout Software,
Inc., Westford, Massachusetts, Copyright(c) [NetScout(TM)] 19__,
All rights reserves."
5. ENGINEERING REQUIREMENTS
5.1 In consideration of Paradyne's purchase obligation as defined
below, NetScout agrees to perform the following engineering
services:
5.1.1 to co-develop the revised RMON User History Group for
support of Paradyne's standard and enterprise MIB's;
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5.1.2 to deliver the device code for RMON User History Group
capability prior to the alpha availability of the
NetScout agent code version 4.5;
5.1.3 to deliver the updated NetScout Manager Plus Software
that supports configuration and graphical display of the
RMON User History Group capability prior to the beta
availability of the NetScout Manager Software, version 5.5.
5.1.4 NetScout agrees to negotiate in good faith any engineering
changes requested by Paradyne which represent changes in
functionality of the Products not currently included in
NetScout's specifications and user manuals, and not
addressed in NetScout's future development plans may be
identified by NetScout under non-disclosure during business
reviews. NetScout's decision to incorporate any such
engineering changes will be primarily based on Paradyne's
projected sales forecast for such functionally modified
products and the expense to institute the proposed changes.
5.2 NetScout further agrees to provide engineering consulting services to
Paradyne at a rate of [***] dollars per month ($[***] month)
during the porting of the Licensed Product into the Paradyne
FrameSaver endpoint devices. The recommended approach for such
engineering consulting services shall be for Paradyne to bring their
engineering environment to NetScout's facilities to enable Paradyne's
engineers to work more closely with NetScout's engineers and
resources (e.g. QA, testing labs, etc.).
5.3 Epidemic Failure. As a result of the limited purchase volumes
forecasted during the Initial Term of the Agreement, NetScout shall
not establish a definitive position regarding percentages, penalties
and/or specific action plans to address "Epidemic" failures which may
occur during the term of this Agreement. NetScout agrees, however, in
the event that Paradyne or its Customers identify an unreasonably
excessive amount of defective, failed or dead on arrival ("DOA")
products during any quarterly period, to establish an action plan to
effect an immediate remedy to the problem. NetScout further agrees to
provide on-site technical support and all necessary parts to repair
or replace product known to be affected by such Epidemic, and to use
commercially reasonable efforts to ensure that the appropriate
quality controls and other measures are taken so that all product of
similar type supplied subsequent to the date of such an Epidemic
shall be free from the problems which caused the Epidemic.
6. TECHNICAL SUPPORT
6.1 NetScout agrees to provide Tier 3 Support via a telephone
support service as set forth in Exhibit D. The telephone support
service will be delivered by a NetScout support person during
NetScout's normal working hours (8 am - 6 pm, EST.), and a best
effort paging service after hours, on weekends and holidays.
Paradyne shall pay a fee of [***] ($[***]) annually, billed
quarterly, for the first year of Tier 1 and 2 Support; fees for
years 2 and 3 and any subsequent extensions of the Agreement shall
be mutually determined thirty (30) days prior to the expiration of
the then current year. Fee considerations shall include a range of
[***] percent ([***]%) of install base dollar and escalation call
volumes.
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6.2 NetScout will provide Paradyne with updates and Revisions to Licensed
Product at the time NetScout makes such updates and Revisions for
beta to enable Paradyne to meet its Customer support requirements.
6.3 Thirty (30) days prior to the date of public distribution of a
Revision, NetScout will, if applicable, provide the source code of
such Revision to Paradyne to enable Paradyne to port/embed the
Revision to the FrameSaver endpoint devices. NetScout will make best
efforts to provide written notification to Paradyne at least
forty-five (45) days prior to any new release or new version of the
Licensed Product, or any change in the Licensed Product that would
materially affect its performance in the FrameSaver endpoint devices.
6.4 NetScout will support and maintain the most current version and one
(1) version immediately preceding the then most current version of
the Licensed Product as modified to run in the FrameSaver end point
devices. Such support and maintenance will be provided for the term
of this Agreement. In the event NetScout discontinues manufacture and
license of the Licensed Product, NetScout agrees to continue support
and maintenance services for a period of one (1) year from such
discontinuance.
7 TRAINING
7.1 NetScout agrees to provide initial Product training for a mutually
determined numbers of Paradyne employees at NetScout's Westford, MA
location. The initial training shall be provided at no charge,
excluding payment of travel and lodging of Paradyne's employees.
NetScout further agrees to provide no charge training (excluding
payment of travel and lodging of Paradyne's employees) for up to ten
(10) Paradyne employees prior to each major Software release.
Additional students may be added to the Software release training
classes at NetScout's published rates. Any other training required
beyond the initial and major release training will be performed at
NetScout's published rates. It is recommended that "train the
trainer" personnel participate in the initial and/or major release
training to support an efficient and cost effective training roll-out.
8 SALES DEMONSTRATION PRODUCTS
8.1 Paradyne shall procure, at the applicable hardware resale discounts,
a mutually determined number of hardware Products to be used for
sales, Customer demonstration and Beta Test purposes.
8.2 Paradyne shall procure, at a cost of [ *** ] dollars ($[ *** ]) per
copy, a mutually determined number of NetScout Manager Plus Software
packages to be used for sales demonstrations. Paradyne will keep such
demonstration Software current by procuring additional Software for
each Major release developed by NetScout. NetScout shall issue a
permanent license for each demonstration Software product purchased.
Paradyne shall be responsible for maintaining the licenses (serial
tracking and platform designations), and shall identify the serial
number and product platform (e.g. Unix or NT) when ordering upgrades
for the Software product.
8.3 Paradyne shall procure, at a cost of [***] dollars ($[*** ]) per copy,
a mutually determined number of NetScout Manager Plus Software
packages to be used for Customer evaluations. Paradyne will keep such
evaluation Software
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current by procuring additional Software for each Major release
developed by NetScout. NetScout shall issue a limited ninety
(90) license for such Software product purchased. Such license
may only be extended by express written approval by NetScout.
8.4 The fee paid by Paradyne for demonstration and evaluation
Software products shall cover the cost of the CD, Documentation,
order processing and administration. Software product orders
shall comply with the purchase order process defined hereinbelow.
9 MARKETING
9.1 NetScout will assist Paradyne, as necessary, to develop
marketing materials to promote the sale of the FrameSaver end
point devices that contain the Licensed Product.
9.2 Paradyne agrees to allocate sufficient funding to complete
twelve (12) seminars per year and to institute direct mail
programs.
9.3 NetScout grants Paradyne the right and license to use NetScout's
name and trademarks in connection with the marketing and sale of
the FrameSaver products, the Licensed Product, and Resale
Products (NetScout Manager Plus and NetScout probes).
10 DOCUMENTATION
10.1 NetScout will provide sufficient copies of its Documentation,
including any applicable copies in electronic form, to enable
Paradyne to incorporate printed copies of the end user
Documentation with each FrameSaver product shipment. The
Documentation may be distributed either as a standalone manual
or in conjunction with Paradyne's standard documentation,
provided, however, that NetScout's proprietary markings remain in
place and are clearly marked. NetScout retains all underlying
rights and ownership to any pre-existing Documentation that may
be utilized by Paradyne to create end user marketing, sales and
technical documentation for the FrameSaver products.
10.2 NetScout grants Paradyne the right to copy NetScout's
Documentation to distribute internally to its sales and
engineering organization, and externally to Customers either in
promotion of the products or in conjunction with the delivery of
the FrameSaver products.
10.3 Any portion of NetScout documentation used in Paradyne
documentation may be promoted in manners consistent with current
tools available (e.g. the Paradyne Web page). Paradyne, however,
may not incorporate NetScout's entire manual(s) onto its Web
page.
11 ROYALTY FEES AND PAYMENT
11.1 Paradyne agrees to pay NetScout, net thirty (n/30) days after
the close of each quarter, a royalty, as defined in Exhibit A,
for each FrameSaver product (56k and T1 versions) sold with
embedded Licensed Product, during the previous quarter for the
term of this Agreement, any extensions to this Agreement, and
any resulting survival periods. Notwithstanding the preceding
sentence, in the event Paradyne elects to price the RMON feature
set separately, the NetScout royalty shall be [***] percent
([***]%) of the separate list price for the RMON
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feature or [***] as listed for each version of embedded RMON listed in
Exhibit A.
11.2 Payment of service support fees as described in Section 6.1
hereinabove shall be due net thirty (n/30) days after the close of
each quarter.
11.3 Any payments made to NetScout, whether as royalties for the Licensed
Product sales or for Resale Product purchases, shall be made without
deduction for any sales use, value-added or other taxes, duties or
levies, except that Paradyne shall have the right to withhold from
payments to NetScout any taxes that Paradyne is required to withhold
under applicable law. Paradyne shall provide NetScout with a
certificate form the applicable tax authorities or other evidence
reasonably required by NetScout to evidence such tax withholding
status.
11.4 Paradyne agrees to provide audit reports to NetScout on a quarterly
basis indicating the number of Licensed Products sold during the
previous quarter to assist the Parties in their quarterly royalty
reconciliation.
11.5 The Parties agree to meet twice annually to review royalty pricing in
light of competitive pressures. Royalty pricing shall be adjusted,
accordingly, to respond to competitive pricing pressures.
12 NETSCOUT RESALE PRODUCTS TERMS AND CONDITIONS
12.1 Paradyne Purchase Obligation. During the first twelve (12) months
following availability of the FrameSaver FRAU's incorporating the
Licensed Product Paradyne agrees to purchase [***] dollars ($[***]) of
NetScout products of which [***] dollars ($[***]) shall be Resale
Products.
12.2 Pricing & Discounts. In consideration of Paradyne's purchase
obligation as set forth in 11.1 above, NetScout extends to Paradyne
the right and license to resell NetScout's probes, management and
diagnostic applications (the "Resale Products"), set forth in Exhibit
B; and, grants Paradyne, for the initial term of this Agreement, a
purchase discount equal to [***] percent ([***]%) and [***] percent
([***]%) off of NetScout's then current list price for NetScout
Manager Software and probes, respectively.
Thirty (30) days prior to the end of the initial term and any
subsequent term of this Agreement, the Parties agree to meet to review
purchase volumes and determine the appropriate Resale Products'
discount level for the next term of the Agreement.
12.3 Purchase Orders. Resale Product orders may be initially made via
telephone or facsimile, provided Paradyne follows the orders with hard
copy purchase orders ("PO's") within a reasonable period of time
thereafter. PO's shall include the following details: Paradyne's part
number for NetScout's products, description, quantity, delivery
date(s) and PO dollar total.
12.4 Order Acceptance & Lead-time. NetScout will accept orders and confirm
delivery schedules within twenty-four (24) hours from receipt of
Paradyne's order placement. NetScout's normal lead-time for NetScout
products is twenty-one (21) days from order placement. NetScout,
however, will make the best efforts to meet, as necessary, Paradyne's
priority requirements.
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12.5 Cancellation/Reschedule. Paradyne reserves the right to cancel PO's or
parts of PO's, without penalty, provided the requested cancellation is
made more than ten (10) days from the scheduled delivery of the
products. Any cancellation requests made inside the eleven (11) day
window shall be subject to [ ] percent (%) cancellation fee. Paradyne
also reserves the right to reschedule PO's or parts of PO's at any
time prior to the scheduled delivery date provided the requested
delivery date does not extend beyond sixty (60) days from the
originally scheduled delivery date.
12.6 Price Changes. NetScout reserves the right to add/delete products from
the attached price list, and further reserves the right to modify
pricing, as required, at any time during the term of this Agreement.
NetScout shall make best efforts to notify Paradyne at least thirty
(30) days prior to any price changes. In the event of a price increase
for Resale Products after order acceptance by NetScout, the applicable
price shall be the price in effect at the time the order was accepted
by NetScout provided the order is scheduled to ship within sixty (60
days from the date of order placement. In the event of a price
decrease in the price of the Resale Products, NetScout shall, on the
effective date of the decrease in price(s), automatically adjust any
unshipped orders for all affected Resale Products to reflect the lower
pricing. In the event of a price increase, NetScout will provide price
protection (e.g. offer products at the lower pricing) for: (i) any
orders placed prior to the price increase and scheduled to ship within
sixty (60) days from the date of the price increase, and (ii) any new
orders placed within sixty (60) days after the price increase.
12.7 Limited Resale Product Warranty. NetScout warrants the Resale Products
for a period of ninety (90) days from a Customer's acceptance that the
Resale Products will be free from defects in material and workmanship.
NetScout shall repair or replace, at no charge, any Resale Products
returned to NetScout during the warranty period. This is NetScout's
sole remedy to Paradyne and/or End Users under this Agreement for
warranty claims.
NETSCOUT HEREBY DISCLAIMS ANY IMPLIED WARRANTIES OR MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE. THE WARRANTIES MADE IN THIS
PARAGRAPH ARE MADE IN LIEU OF ALL OTHER EXPRESS WARRANTIES, WHETHER
ORAL OR WRITTEN.
12.8 Payment. Payment for the Resale Products shall be due net thirty
(n/30) days from the date of receipt by Paradyne. Any payments made to
NetScout for Resale Product purchases shall be made without deduction
for any sales, use, value-added or other taxes, duties or levies,
except that Paradyne shall have the right to withhold from payments to
NetScout any taxes that Paradyne is required to withhold under
applicable law. Paradyne shall provide NetScout with a certificate
from the applicable tax authorities or other evidence reasonably
required by NetScout to evidence such tax payment.
12.9 Title & Risk of Loss. All orders shall be shipped FOB, Westford, MA.
Title and risk of loss shall immediately pass upon delivery to the
respective carrier.
12.10 Point of Sale Reporting. Paradyne agrees to provide to NetScout,
within thirty (30) business days of the close of each calendar
quarter, Point of Sale (POS)
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reports identifying the quantity and dollar value, and zip
code/country code, for the Resale Products sold by Paradyne in
the previous calendar quarter.
12.11 Service and Support. Paradyne shall be obligated to provide
customer service and support for Resale Products during the
applicable warranty period, with backup support from NetScout as
necessary. NetScout shall be responsible for providing customer
service and support for out of warranty Resale Products, provided
such Resale Products carry maintenance agreements. Escalation
guidelines and post warranty service charges are incorporated in
Exhibit D.
13 CONFIDENTIAL INFORMATION
All confidential information exchanged by the Parties during the term of
this Agreement shall be treated pursuant to a certain Non-Disclosure
Agreement, effective December 3, 1997, and incorporated herein by
reference.
14 LICENSED PRODUCT LIMITED WARRANTY AND DISCLAIMER OF LIABILITY
14.1 NetScout has no control over the conditions under which Paradyne
and Customers use the Licensed Product, and does not/cannot
warrant the results obtained by such use.
14.2 NetScout warrants that no security measures have been
incorporated in the Licensed Product which would impair its use
and operation except such measures as are disclosed to Paradyne
in writing and approved by Paradyne in writing.
14.3 In addition to warranting that it has the right to grant the
licenses contained in this Agreement, NetScout warrants under the
terms and conditions of the End User license agreement, attached
hereto as Exhibit C, that the magnetic media on which the
Licensed Product resides shall be free from defects in material
and workmanship under normal usage. NetScout further warrants
that the Licensed Product will perform substantially in
accordance with the current written functional specifications and
documentation. The warranties contained in this paragraph are
made for a period of ninety (90) days from the date that the
Licensed Product is delivered to the Customer.
14.4 NetScout warrants that it has the right and is duly authorized to
enter into this Agreement and has sufficient rights, title and
interest in and to the Licensed Product and related Documentation
to grant the licenses and shall not make commitments to others
inconsistent herewith.
14.5 NetScout does not warrant that the functions contained in the
Licensed Product will meet the requirements of Paradyne or the
Customer, or that the operation of the Licensed Product will be
uninterrupted or error free. The warranty shall not cover any
copy of the Licensed Product that has been altered or changed in
any way by Paradyne, excepting changes authorized by NetScout
pursuant to Section 3.1.6 hereinabove, or by the Customer.
NetScout further shall not be responsible for problems caused by
changes in or modifications to the operating characteristics of
any computer hardware or operating system on which the Licensed
Product was intended to be used, nor will NetScout be responsible
for problems which occur as a result of the use of the Licensed
Product in conjunction with hardware which is incompatible with
the operating system for which the Licensed Product was designed
for and/or intended to be used with.
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14.6 THE FOREGOING LICENSED PRODUCT WARRANTIES OF NETSCOUT ARE IN LIEU
OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT
LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
14.7 The above warranties shall survive any delivery, acceptance,
payment, termination or expiration of this Agreement or any PO's
provided hereunder, and shall run to Paradyne, its successors,
assigns, Customers and users of the Licensed Product.
15. ENGINEERING CHANGES
15.1 NetScout may, without prior approval from or prior notice to
Paradyne, make changes to the Licensed Products (i) which do not
adversely affect interchangeability with previously shipped
Product or (ii) when required for safety, regulator, or legal
purposes.
15.2 NetScout will notify Paradyne forty-five (45) day in advance of
scheduled shipment of any changes to the NetScout software
product/NetScout RMON feature set embedded into a Paradyne
hardware product ("Embedded Products") which adversely affect
interchangeability with previously shipped Embedded Products.
NetScout further agrees to provide, with its forty-five (45) day
advanced notification, upgrade recommendations that will
reconcile any interchangeability problems which may result form
the proposed changes.
16. NEW PRODUCT DEVELOPED BY SELLER
16.1 If NetScout develops a new product that NetScout believes will
benefit both parties, NetScout shall notify Paradyne in writing
at least sixty (60) days prior to the time of the initial public
announcement of such new product, unless other terms are mutually
agreed upon, in advance and in writing, by the paries. At the
time of such written notice, NetScout shall also provide to
Paradyne a beta product along with any available specifications,
description, and technical data to enable Paradyne to perform an
engineering evaluation of the new product.
17. PRODUCT DISCONTINUANCE
17.l NetScout agrees to notify Paradyne at least twelve (12) months
prior to the discontinuance of any Resale Product listed in
Exhibit B of this Agreement. Paradyne shall be granted a right to
make a last time buy of the discontinued Resale Product during
the notice period, and shall receive technical support of the
Resale Product and all replacement Resale Products throughout the
term of this Agreement, and for a period of five (5) years after
the Agreement expires.
18. EXTENSION OF MANUFACTURING RIGHTS
18.1 A perpetual license to continue embedding the Licensed Products
during the manufacture of the Paradyne products listed in Exhibit
A, shall be granted to Paradyne under the following conditions:
18.2 Discontinuance of the Licensed Products defined in Exhibit A,
provided no functionally equivalent substituted is made available
at or below the specified price.
18.3 A new Licensed Product replaces or obsoletes existing Licensed
Product and the
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new Licensed Product fails to meet the specifications defined herein
this Agreement.
18.4 NetScout becomes insolvent. Paradyne will have the right to withdraw
the Manufacturing Information contained in the escrow account in
preparation for manufacturing the Products. However, such rights will
not become effective until such time as NetScout dissolves or ceases
to do business.
18.5 Material Breach of this Agreement by NetScout that is not cured
within the time period as specified in Section 21, Termination.
18.6 Such perpetual license will be subject to the royalties set forth in
Exhibit A.
18.7 Notwithstanding the foregoing, the obligations of NetScout under this
Section are conditional upon Paradyne's ability to secure such
manufacturing usage licenses or other proprietary rights of third
parties, if any, as may be required to manufacture such Product.
NetScout agrees to provide reasonable assistance to Paradyne to
secure such rights.
19. LIMITATION OF REMEDIES
19.1 Except as set forth in the Indemnity section below, NetScout's
entire liability and Paradyne's exclusive remedy for breach of
Section 14 shall be the replacement by NetScout of any Licensed
Product which fails to meet NetScout's Limited Warranty defined in
such section. Neither party shall have any liability for special,
incidental or consequential damages, including lost profits, arising
out of this Agreement or with respect to the installation, use
operation or support of the Licensed Product and Resale Products,
even if such party has been apprised of the possibility of such
damages.
19.2 Except as set forth in the Indemnity section below, either party's
total liability arising from breach of warranty, breach of contract,
negligence, strict liability or tort, or any other legal theory shall
in no way exceed the greater of (i) the sum total of license fees
paid and Resale Products purchased by Paradyne, and (ii) ____________
dollars ($_________). This limitation of liability shall not apply to
personal injury or direct damage resulting from claims of gross
negligence or willful misconduct, provided the injured party asserts
a right to recover those direct damages from the other Party.
20. INDEMNIFICATION
20.1 NetScout shall defend, hold harmless and indemnify Paradyne and its
Customers from and against any claim that NetScout's Licensed
Product, Resale Products and Documentation (collectively the
"Materials") supplied or licensed hereunder infringe any patent,
copyright, trade secret, trademark or other intellectual property
rights of a third party, and NetScout will pay the costs and damages
related thereto, including, without limitation, reasonable attorneys'
fees, provided that: (a) Paradyne promptly notifies NetScout in
writing of the claim; and (b) NetScout has sole control of the
defense and all related settlement negotiations.
20.2 The obligation of NetScout under paragraph 1 of this Section 20 is
conditioned on Paradyne's agreement that if the Materials or the
operation thereof, become, or in the opinion of NetScout, are likely
to become, the subject of such a claim, that Paradyne will permit
NetScout, at the sole option and expense of NetScout, either
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to procure the right for Paradyne to continue marketing and
distributing the Materials or to replace or modify them so that they
become non-infringing, provided that such replacement or modification
does not materially degrade the performance or functionality of the
Materials NetScout shall have no liability for any claim based upon
the combination or use of any of the Materials supplied hereunder with
equipment, data or programming not supplied by NetScout, or based upon
alteration or modification of NetScout's Material by Paradyne,
provided the liability would not arise absent the combination,
alteration or modification.
20.3 The foregoing states the entire obligation of NetScout to Paradyne
with respect to infringement of patents, copyrights and trade secrets,
trademarks or other intellectual property rights.
21 TERMS AND TERMINATION
21.1 Term. The initial term of this Agreement shall be three (3) years from
the date set forth in the first sentence of this Agreement.
Thereafter, this Agreement shall automatically be renewed for
additional one (1) year terms, unless terminated by either party upon
ninety (90) days advance written notice to the other party.
21.2 If either party ceases doing business as a going concern, becomes
insolvent, suffers or permits the appointment of a receiver for its
business or assets or shall avail itself of, or become subject to, any
proceeding under the Federal Bankruptcy Code of 1978, (as amended), or
any statute of any state relating to insolvency or the protection of
rights of creditors, then (at the option and upon noticed from the
other party) this Agreement shall terminate and be of no further force
and effect.
21.4 In the event either party defaults any obligations in this Agreement,
the other party shall give written notice of such default, and, if the
party in default fails to cure within sixty (60) days of the notice,
the other party shall have the right to terminate. NetScout's right to
terminate, however, shall be immediate in the event of breach by
Paradyne of Section 2.1.3 hereinabove.
21.5 Upon termination of this Agreement, regardless of the reason, the
rights and licenses granted to Paradyne under this Agreement shall be
immediately revoked. Within ten (10) days after termination, Paradyne
shall return to NetScout or destroy, at NetScout's discretion, the
Source Code for the Licensed Product and all copies thereof, except
those copies necessary for continued maintenance and support as set
forth in Section 3.1.3 hereunder. Any such destruction shall require
certification in writing that the Source Code and any copies thereof
have been destroyed. TERMINATION SHALL NOT RELIEVE PARADYNE OR
NETSCOUT OF ITS OBLIGATIONS REGARDING THE CONFIDENTIALITY IN ANY
LICENSED PRODUCT(S).
21.6 Without limiting any of the provisions contained in the preceding
paragraphs of this section, in the event of termination as a result of
Paradyne's failure to comply with any of its obligations under this
Agreement, Paradyne shall continue to be obligated for any payments
due as of the date of termination. Termination of Paradyne's license
rights shall be in addition to an not in lieu of any equitable
remedies available to NetScout.
21.7 All notices of termination will be in writing and delivered pursuant
to Section
Marketing & License Agreement Paradyne and NetScout Confidential page 13
NetScout and Paradyne Use Pursuant to Company Procedures 01/26/98
26
23.7 All notices shall be mailed to the name and address listed
below in the Notices section.
21.8 Rights and Obligations after Termination. Excepting any rights
provided hereinabove, the Parties mutually agree to return to each
other, no later than thirty (30) days after termination of this
Agreement, any Confidential Information which has been provided.
22 ARBITRATION
22.1 Any controversy or claim, whether based on contract, tort, or other
legal theory (including, but not limited to, any claim of fraud or
misrepresentation), arising out of or related to this Agreement
shall be resolved by arbitration pursuant to this Paragraph and
the then current rules and supervision of the American Arbitration
Association. The duty to arbitrate shall extend to any officer,
employee, agent, or subsidiary making or defending any claim which
would otherwise be arbitrable hereunder. The arbitration shall be
held in the headquarters city of the party not initiating the claim
before a single arbitrator who is knowledgeable in business
information and electronic data processing systems. The
arbitrator's decision and award shall be final and binding and may
be entered in any court having jurisdiction thereof. The arbitrator
shall not have the power to award punitive or exemplary damages.
Issues of arbitrability shall be determined in accordance with the
federal substantive and procedural laws relating to arbitration; all
other aspects shall be interpreted in accordance with the laws of
the State of New York. Each party shall bear its own attorney's
fees associated with the arbitration and other costs and expenses
of the arbitration shall be borne as provided by the rules of the
American Arbitration Association. If court proceedings to stay
litigation or compel arbitration are necessary, the party who
unsuccessfully opposes such proceedings shall pay all associated
costs, expenses and attorney's fees which are reasonably incurred
by the other party. If any portion of this Paragraph is held to be
unenforceable, it shall be served and shall not affect either the
duty to arbitrate hereunder or any other part of this Paragraph.
23. GENERAL
23.1 Governing Law. This Agreement and any PO's issued hereunder shall
be governed by and interpreted in accordance with the laws of New
York.
23.2 Compliance with Laws. All materials and products supplied and work
performed under this Agreement shall comply with all applicable
United States and foreign laws and regulations. Either party's
failure to comply with any of the requirements of this Section may
result in a material breach of this Agreement.
23.3 Assignment: Either party shall have the right to assign this
Agreement and to assign its rights and delegate its duties under
this Agreement either in whole or in part at any time upon written
notice to the non-assigning party and without the non-assigning
party's consent.
Upon an assignment by either party and with thirty days prior
written notice the non-assigning party may terminate the Agreement
in the event that the assignee, in the non-assigning party's
reasonable opinion, is a competitor of the non-assigning party or
is of questionable financial stability and/or soundness.
Marketing & License Agreement Paradyne and NetScout Confidential page 14
NetScout and Paradyne Use Pursuant to Company Procedures 01/26/98
27
An assignment pursuant to this section shall neither affect nor
diminish any rights or duties that either party may then or
thereafter have as to Products, Licensed Materials or Services
delivered prior to the effective date of this assignment. Upon the
assumption of the duties under this Agreement by the assignee, the
assigning party shall be released and discharged, to the extent of
the assignment, from all further duties under this Agreement as to
Products, Licensed Materials or Services not delivered by the
assigning party by the effective date of the assignment.
23.4 Modification/Binding Effect. This Agreement shall not be valid until
signed and accepted by an authorized representative of each Party,
and no Party shall be bound by any change, alteration, amendment,
modification, termination or attempted waiver of any of the
provisions hereof unless in writing and signed by an authorized
representative of the Party against whom it is sought to be enforced.
This Agreement shall be binding on and inure to the benefit of the
Parties hereto and their prospective successors, legal
representatives and permitted assigns.
23.5 Nonwaiver.
23.5.1 All rights and remedies conferred by this Agreement, by any
other instrument, or by law are cumulative and may be
exercised singularly or concurrently. If any provision of this
Agreement is held invalid by any law or regulation of any
government or by any court, such invalidity shall not affect
the enforceability of any other provisions hereof.
23.5.2 No forbearance, delay or indulgence by either party in
enforcing the provisions of this Agreement shall prejudice or
restrict the rights of that party nor shall any waiver of its
rights operate as a waiver of any subsequent breach and no
right, power or remedy herein conferred upon or reserved for
either party is exclusive of any other right, power or remedy
available to the Party and each such right, power or remedy
shall be cumulative.
23.5.3 Either Party may seek injunction preliminary or other
equitable relief to remedy any actual or threatened dispute.
23.6 Independent Contractor. The relationship between the Parties is that
of independent contractors, and under no circumstances shall any of
the employees of one party be deemed to be employees of the other
party for any purpose. Except as specifically provided herein, this
Agreement shall not be construed (a) as authority for either party to
act for the other in an agency or any other capacity, or to make
commitments of any kind for the account of or on behalf of the other
or (b) to imply that Paradyne is an agent of NetScout as defined by
applicable law.
23.7 Notices.
Any legal notices ("Legal Notices") given under this Agreement shall
be written and shall be sent by registered or certified mail, postage
prepaid, return receipt requested, overnight courier services with
signature verification, personal delivery, or facsimile if followed
up with original document via any one of the aforementioned delivery
modes. Legal Notices shall be defined as any written correspondence
made by either party to amend or modify this Agreement, provide
Marketing & License Agreement Paradyne and NetScout Confidential page 15
NetScout and Paradyne Use Pursuant to Company Procedures 01/26/98
28
notice of cure in the event of breach, provide notice of
termination/expiration, or to initiate legal proceedings, as provided
for by law, in the event of a contract dispute or tortious action
resulting from the negligence of either party in performing its
obligations hereunder. All Legal Notices shall be effective when first
received at the following addresses listed below:
If to NetScout: If to Paradyne:
NetScout Systems, Inc. Paradyne Corporation
4 Technology Park 0000 000xx Xxxxxx Xxxxx
Xxxxxxxx, XX 00000 XX Xxx 0000,
Xxxxx, XX 00000-0000
Attention: Xxxxxxx Xxxxxxx Attention: Manager of Corporate
Contracts
with copies to: Xxxxxx Xxxxxxxx with copies to: Director of
and Xxxxxx Xxxxxxxx Frame Relay
Products
23.8 The Parties mutually agree that technical notices, sales, marketing
and business information shall not be considered Legal Notices, and
shall not follow the formal notice processes defined above, and may be
delivered to/from each other's office locations by personal delivery,
mail or express carrier, electronic means, or facsimile.
23.9 Force Majeure. Neither party will be liable for delay in performing
its obligations or for any failure to perform its obligations
hereunder, if the delay results from circumstances beyond the
reasonable control of the Party including, but not limited to, force
majeure, Act of God, refusal of license, law, ordinance, policy,
regulation, decree, order, judgment or governmental act, utility
curtailments, power failures, fire, flood, bad weather, explosion,
accident, civil commotion, war or act of war, industrial dispute, or
impossibility of commercial impracticability of obtaining materials or
services or providing service due to any of the above circumstances.
23.10 Headings Identification. The headings appearing at the beginning of
the sections contained in this Agreement have been inserted for
identification and reference purposes only, and shall not be used in
the construction and interpretation of this Agreement.
23.11 Entire Agreement/Order of Precedence. Each party acknowledges that it
has read this Agreement, understands it, and agrees to be bound by its
terms, and further agrees that this is the complete and entire
understanding between the Parties on this subject matter and
supersedes all prior agreements, proposals, representations,
statements, or understandings between them on this subject. The
provisions of this Agreement may be amended or waived only by a
writing executed by the authorized representatives of the Parties
hereto. In case of conflict of terms between the terms and conditions
of a PO or an invoice and the terms and conditions of this Agreement,
the terms and conditions of this Agreement shall prevail.
23.12 Survival. All sections, which by their nature should survive the
expiration or
Marketing & License Agreement Paradyne and NetScout Confidential page 16
NetScout and Paradyne Use Pursuant to Company Procedures 01/26/98
29
termination of this Agreement, shall survive, including, without
limitation, Sections 4.2, 4.4, 5, 12, 13, 17, 18, 19, 20, 21 and 23
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement.
NETSCOUT SYSTEMS, INC. PARADYNE CORPORATION
/s/ Xxxxxx Xxxxxxxx /s/ Xxx Xxxxxx
---------------------------- --------------------------------
Signature Signature
Xxxxxx Xxxxxxxx Xxx Xxxxxx
---------------------------- --------------------------------
Name Name
VP, Business Development S.V.P. & CFO
---------------------------- --------------------------------
Title Title
Marketing & License Agreement Paradyne and NetScout Confidential page 17
NetScout and Paradyne Use Pursuant to Company Procedures 01/26/98
30
EXHIBIT A
PRODUCT ROYALTY SCHEDULE
T1 56k
Product Royalty Royalty Description
----------------------------------------------------------------------------------------
FrameSaver 9620/9120 $[***] $[***] Existing Products.
Contains no NetScout Intellectual
Property.
FrameSaver 962x/912x $[***] $[***] Contains NetScout mini-RMON1,
w/RMON mini-RMON2, IP Top Talkers, and
User History Group Intellectual
Property
FrameSaver 9621/912x $[***] $[***] Contains NetScout mini-RMON1
w/RMON buckets and User History Group Intellectual
Property.
All other Paradyne DSU's $[***] $[***] Existing products. Contains no
NetScout Intellectual Property.
Marketing & License Agreement Paradyne and NetScout Confidential page 18
NetScout and Paradyne Use Pursuant to Company Procedures 01/26/98
---------------
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EXHIBIT B
RESALE PRODUCTS LISTING
NetScout Price List
-------------------------------------------------------------------------------
Model Description Price($)
----- ----------- --------
LAN PROBES
Ethernet
--------
6010/8 Ethernet Probe (8 Meg)
6010/16 Ethernet Probe (16 Meg)
6010E2/16 Dual-Interface Ethernet Probe (16 Meg)
Multi-port Ethernet
-------------------
7301ET/32 Four Port Ethernet Probe (32 Meg)
7302ET/64 Eight Port Ethernet Probe (64 Meg)
7303ET/64 Twelve Port Ethernet Probe (64 Meg)
Fast Ethernet
-------------
7201ET/32 Half Duplex 100BaseTX/Ethernet (32 Meg)
7211ET/32 Full Duplex 100BaseTX/Ethernet (32 Meg)
7221ET/32 Dual-Interface Half Duplex 100BaseTX/Ethernet (32 Meg)
Note: Full Duplex 100BaseTX probes include FDX-TX Tap Kit
7203ET/32 Half Duplex 100BaseFX/Ethernet (32 Meg)
7213ET/32 Full Duplex 100BaseFX/Ethernet (32 Meg)
7223ET/32 Dual-Interface Half Duplex 100BaseFX/Ethernet (32 Meg)
Note: Full Duplex 100BaseFX probes include FDX-FX Tap Kit
Token Ring
----------
6020/8 Token Ring Probe (8 Meg)
6020/16 Token Ring Probe (16 Meg)
6020T2/16 Dual-Interface Token Ring Probe (16 Meg)
Ethernet/Token Ring
-------------------
6030/16 Ethernet/Token Ring Probe (16 Meg)
4.03P1M1 Rev D Effective January 15, 1998 2
32
EXHIBIT B
RESALE PRODUCTS LISTING
NetScout Price List
--------------------------------------------------------------------------------
MODEL DESCRIPTION PRICE($)
----- ----------- --------
WAN PROBES
----------
T1/E1 WAN
---------
6050/8 T1/E1 WAN/Ethernet Probe (8 Meg) [***]
6050/16 T1/E1 WAN/Ethernet Probe (16 Meg) [***]
6070/8 T1/E1 WAN/Token Ring Probe (8 Meg) [***]
6070/16 T1/E1 WAN/Token Ring Probe (16 Meg) [***]
Note: T1/E1 WAN probes include a T1/E1 Tap Kit.
Please specify the cable interface. (V.35,X.21 single clock,
X.21 dual clock, RS422/RS449, EIA530, RS232) Default is V.35
T3/E3 WAN
---------
7401ET/32 T3/E3 WAN (HSSI)/Ethernet Probe (32 Meg) [***]
7401TR/32 T3/E3 WAN (HSSI)/Token Ring Probe (32 Meg) [***]
Note: T3/E3 WAN probes include a T3/E3 Tap Kit. (HSSI interface)
Multi-port Sub-rate WAN
-----------------------
7502ET/32 Two Port Sub-rate WAN/Ethernet Probe (32 Meg) [***]
7502TR/32 Two Port Sub-rate WAN/Token Ring Probe (32 Meg) [***]
7504ET/32 Four Port Sub-rate WAN/Ethernet Probe (32 Meg) [***]
7504TR/32 Four Port Sub-rate WAN/Token Ring Probe (32 Meg) [***]
Note: Multi-port WAN probes include T1/E1 Tap Kits.
Please specify the cable interface. (V.35, X.21 single clock,
X.21 dual clock, RS422/RS449, EIA530, RS232) Default is V.35
FDDI/CDDI PROBES
----------------
CDDI (SAS)
----------
7101ET/32 CDDI/Ethernet Probe - Single Attached (32 Meg) [***]
7101TR/32 CDDI/Token Ring Probe - Single Attached (32 Meg) [***]
FDDI (SAS)
----------
7102ET/32 FDDI/Ethernet Probe - Single Attached (32 Meg) [***]
7102TR/32 FDDI/Token Ring Probe - Single Attached (32 Meg) [***]
FDDI (DAS)
----------
7103ET/32 FDDI/Ethernet Probe - Dual Attached (32 Meg) [***]
7103TR/32 FDDI/Token Ring Probe - Dual Attached (32 Meg) [***]
ATM (OC3)
---------
8100ET/32 ATM (OC3)/Ethernet Probe (32 Meg) [***]
4.03P1M1 Rev D Effective January 15, 1998 3
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RESALE PRODUCTS LISTING
NETSCOUT PRICE LIST
----------------------------------------------------------------------------------------------------------------
Model Description Price ($)
----- ----------- ---------
SOFTWARE
NetScout Manager Plus
9115 NetScout Manger Plus of Unix (SUN, HP-UX, AIX) [***]
9125 NetScout Manger Plus for Windows (95 & NT) [***]
(Note: NetScout Manager Plus provides integrated tools for monitoring LANs, WANs,
Frame Relay links and Switched networks)
Upgrade NetScout Manager to NetScout Manager Plus
9116 Upgrade NSM for Unix to NSM Plus for Unix (Password Upgrade) [***]
9126 Upgrade NSM for Windows NT to NSM Plus for Windows NT [***]
(Password Upgrade)
Expert Visualizer
9130 Expert Visualizer for Unix (SUN, HP-UX, AIX) [***]
NetScout Server
9135 NetScout Server for Unix (SUN, HP-UX, AIX) [***]
9140 NetScout Server for WindowsNT [***]
NetScout WebCast
9145 NetScout WebCast for Unix (SUN, HP-UX, AIX) [***]
9150 NetScout WebCast for WindowsNT [***]
RMON2 Software Agent
5100 NetScout Agent for WindowsNT [***]
PROBE FIRMWARE OPTIONS
Resource Monitor
NRM Resource Monitor Option [***]
Proxy RMON Monitor
PRM Proxy RMON Monitor Option [***]
Note: Supported on Models 6010 and 6010E2 only.
Netflow Monitor
NFM Netflow Monitor Option [***]
4.03P1M1 Rev D Effective January 15, 1998 4
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RESALE PRODUCTS LISTING
NETSCOUT PRICE LIST
-------------------------------------------------------------------------------
Model Description Price($)
----- ----------- --------
UPGRADE OPTIONS FOR INSTALLED PROBES
------------------------------------
Memory Upgrade Options for 6000 Series
--------------------------------------
6002M16 Memory Upgrade - 2 Meg to 16 Meg [***]
6004M16 Memory Upgrade - 4 Meg to 16 Meg [***]
6008M16 Memory Upgrade - 8 Meg to 16 Meg [***]
6016M32 Memory Upgrade - 16 Meg to 32 Meg [***]
Factory installed options - requires return of probe to factory for upgrade.
-------------------------
Memory Upgrade Options for 7000 Series
--------------------------------------
7008M32 Memory Upgrade - 8 Meg to 32 Meg [***]
7016M32 Memory Upgrade - 16 Meg to 32 Meg [***]
7032M64 Memory Upgrade - 32 Meg to 64 Meg [***]
Factory installed options - requires return of probe to factory for upgrade.
-------------------------
Interface Upgrades for 6000 Series
----------------------------------
6000E2 2nd Ethernet Interface for Model 6010 [***]
6000T2 2nd Token Ring Interface for Model 6020 [***]
Note: Adding Interfaces to any 6000 Series probe requires a minimum
16 Meg Unit.
Factory installed options - requires return of probe to factory for upgrade.
-------------------------
Interface Upgrades for 7000 Series
----------------------------------
7200TX 2nd Half Duplex 100BaseTX Interface for Model 7201 [***]
7200FX 2nd Half Duplex 100BaseFX Interface for Model 7203 [***]
7300E4 Additional Four-Port Ethernet Interface for Model [***]
7300 probes
7500WN Additional WAN Interfaces for Model 7500 probes [***]
Note: Adding Interfaces to any 7000 Series probe requires a minimum
32 Meg Unit.
Factory installed options - requires return of probe to factory for upgrade.
-------------------------
MISCELLANEOUS OPTIONS
---------------------
Fast Ethernet FDX Tap Kits (includes cables)
--------------------------------------------
FDX-TX Additional Full Duplex Fast Ethernet Tap Kit for [***]
100BaseTX
FDX-FX Additional Full Duplex Fast Ethernet Tap Kit for [***]
100BaseFX
T1/E1 WAN Tap Kits (includes cables)
------------------------------------
V35-Tap Additional Tap Kit for T1/E1 WAN (V.35) [***]
X21/1-Tap Additional Tap Kit for T1/E1 WAN (X.21) [***]
X21/2-Tap Additional Tap Kit for T1/E1 WAN (X.21) [***]
RS422-Tap Additional Tap Kit for T1/E1 WAN (RS422/RS449) [***]
EIA530-Tap Additional Tap Kit for T1/E1 WAN (EIA530) [***]
RS232-Tap Additional Tap Kit for T1/E1 WAN (RS232) [***]
4.03P1M1 Rev D Effective January 15, 1998 5
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EXHIBIT B
RESALE PRODUCTS LISTING
NetScout Price List
--------------------------------------------------------------------------------------
Model Description Price
----- ----------- -----
T3/E3 WAN Tap Kit (includes cables)
-----------------------------------
WAN-HSSI Additional Tap Kit for T3/E3 WAN (HSSI) [***]
Fiber Optic Splitters (Includes cables)
---------------------------------------
OPT-SPLT1 Additional 80/20 Multi-mode Fiber Optic Splitter [***]
Cables
------
2950-100 Additional Cat 5 CDDI Cable (15') [***]
2950-180 T3/E3 WAN (HSSI) Tap Cables [***]
2950-215 Additional Probe Console Cable (6') [***]
Fiber Cables & Couplers
-----------------------
2950-60 Additional ST to ST Coupler [***]
2950-70 Additional ST to MIC Coupler [***]
2950-80 Additional Duplex SC to SC Cable (24') [***]
2950-90 Additional Duplex SC to ST Cable (24') [***]
Rack Mount
----------
RM-19 Shelf for Rack Mounting (holds three 7000 series probes) [***]
RMK-6000 Rack Mount Kit for 6000 Series Probes [***]
Documentation
-------------
2930-170 NetScout Probe User Guide [***]
2930-610 NetScout Manager Plus User Guide [***]
2930-620 NetScout Manager Plus Administrator Guide [***]
2930-430 NetScout Expert Visualizer User Guide [***]
NetScout Training
-----------------
NetScout Manager Plus Training (3 days) [***]
NetScout WebCast Training (1 day) [***]
(Note: Training classes are held at NetScout Systems and the prices listed above
are per student. Prices for on-site training can be obtained by calling NetScout
Systems).
4.03P1M1 Rev D Effective January 15, 1998 6
--------------------------------------------------------------------------------
---------------------
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EXHIBIT B
RESALE PRODUCTS LISTING
NetScout Price List
-------------------------------------------------------------------------------
NetScout Systems, Inc.
Support & Maintenance
Policy and Pricing
NetScout Systems, Inc.
0 Xxxxxxxxxx Xxxx Xxxxx Xxxxxxxx, XX 00000
TEL 000-000-0000 - FAX 000-000-0000
4.03P1M1 Rev D Effective January 15, 1998 7
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37
EXHIBIT B
RESALE PRODUCTS LISTING
NETSCOUT PRICE LIST
--------------------------------------------------------------------------------
If Extended Hardware Maintenance coverage is desired and was not purchased
at the same time the hardware was purchased, coverage will be offered at
NetScout Systems' sole discretion. Contact NetScout Systems' Sales
Administration for a price quote.
(Note: Hardware products covered under Extended Hardware Maintenance will
be repaired or replaced at NetScout Systems sole discretion upon return to
factory, freight prepaid. Hardware Warranty and Extended Hardware
Maintenance do not cover functional upgrades. Functional upgrades such as
faster processors, increased Memory/Flash, etc., are separately chargeable
at the current price listed in the NetScout Price List.)
NON-WARRANTY HARDWARE REPAIR
Hardware products no longer under warranty or Extended Hardware Maintenance
can be repaired on a single occurrence basis by returning a product,
freight prepaid, to NetScout Systems. NetScout Systems will repair and
return, freight included, for the one price indicated. The repaired unit
will be under warranty for a period of 90 days after return to the
customer. (Note: If the unit is not repairable, the customer will be
notified and the unit will be returned to the customer.)
BILLING
For ordering and billing convenience, all yearly prices will be pro-rated
on a monthly basis to provide a single yearly contract covering all
NetScout products.
PROFESSIONAL SERVICES
A new fee based Professional Service is now available to assist customer IT
staffs in the installation of NetScout products. A NetScout trained
technician will install, configure and test NetScout products at the
customer site and provide hands on training to the customer's technical
staff.
Professional Services will be billed at [***] per day plus expenses.
PRICING
MANAGEMENT Software Technical Support
SOFTWARE Updates (only) & Updates
---------------------------------------------- -------------- -----------------
Model 9115 - NetScout Manager Plus for Unix $[***] $[***]
Model 9125 - NetScout Manager Plus for Windows $[***] $[***]
Model 9135 - NetScout Server for Unix $[***] $[***]
Model 9140 - NetScout Server for WindowsNT $[***] $[***]
Model 9145 - NetScout WebCast for Unix $[***] $[***]
Model 9150 - NetScout WebCast for WindowsNT $[***] $[***]
Model 9130 - Expert Visualizer for Unix $[***] $[***]
4.03P1M1 Rev D Effective January 15, 1998 9
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EXHIBIT B
RESALE PRODUCTS LISTING
NetScout Price List
--------------------------------------------------------------------------------
GENERAL
Support will be provided, free of charge, for a period of 90 days from the
date of original shipment. Customers will have unlimited phone support
during normal business hours (Toll free 800-357-RMON). As a condition of
support, the user is required to identify the serial numbers of the products
involved. Support Coverage can be extended beyond the initial 90 day period
through the purchase of Technical Support Coverage.
Updates will be provided for Management Station and/or Probe software, free
of charge, for a period of 90 days from the date of original shipment.
Updates will include all bug fixes and enhancements which become elements
of the standard product. Eligibility for software updates can be extended
beyond the initial 90 day period through the purchase of either Software
Update Coverage or Technical Support Coverage.
TECHNICAL SUPPORT COVERAGE
Technical Support Coverage provides unlimited phone support during normal
business hours (Toll free 800-357-RMON) and access to Software Updates. If
Technical Support Coverage is desired, all products purchased by an
individual customer must be under contract.
SOFTWARE UPDATE COVERAGE
Software Update Coverage can be purchased for products not under Technical
Support Coverage. Software Updates will include all bug fixes and
enhancements which become elements of the standard product. If Software
Update Coverage is purchased, all copies of that product (Management
Software or Probe) must be placed contract.
7X24 SUPPORT SERVICES
For an additional charge, 7X24 Support Services can be purchased which
provides telephone support 7 days a week, 24 hours a day, with guaranteed
call back within 2 hours.
Please contact NetScout Systems' Customer Support department for price
quotes on 7X24 Support Services. (Note: This service requires that all
NetScout products be under Technical Support Coverage.)
HARDWARE WARRANTY
Hardware products are warranted for a period of 1 year after initial
shipment and will be repaired or replaced at NetScout System sole discretion
upon return to factory, freight prepaid.
EXTENDED HARDWARE MAINTENANCE
Hardware maintenance coverage can be extended an additional two years
(bringing the total to three years) through the purchase of Extended
Hardware Maintenance Coverage. The Extended Hardware Maintenance pricing
listed in this Price List is valid only if the coverage is purchased at the
same time the hardware is purchased.
4.03P1M1 Rev D Effective January 15, 1998 8
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39
EXHIBIT B
RESALE PRODUCTS LISTING
NetScout Price List
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
TECHNICAL
SOFTWARE SUPPORT & EXTENDED NON-
PROBES & UPDATE SOFTWARE HARDWARE WARRANTY
SOFTWARE AGENTS ONLY UPDATE MAINTENANCE REPAIR
--------------------------------------------------------------------------------
Software Agent for NT $[***] $[***] $[***] $[***]
---------------------
Model 5100
--------------------------------------------------------------------------------
LAN Probes
----------
Model 6010, 6020 $[***] $[***] $[***] $[***]
Model 6010E2, 6020T2, 6030 $[***] $[***] $[***] $[***]
--------------------------------------------------------------------------------
WAN Probes
----------
Model 6040, 6050, 6060, 6070 $[***] $[***] $[***] $[***]
--------------------------------------------------------------------------------
FDDI Probes
-----------
Model 7101 $[***] $[***] $[***] $[***]
Model 7102 $[***] $[***] $[***] $[***]
Model 7103 $[***] $[***] $[***] $[***]
--------------------------------------------------------------------------------
Fast Ethernet Probes
--------------------
Model 7201 $[***] $[***] $[***] $[***]
Model 7203 $[***] $[***] $[***] $[***]
Model 7211 $[***] $[***] $[***] $[***]
Model 7213 $[***] $[***] $[***] $[***]
Model 7221 $[***] $[***] $[***] $[***]
Model 7223 $[***] $[***] $[***] $[***]
--------------------------------------------------------------------------------
Multiport Ethernet Probes
-------------------------
Model 7301 $[***] $[***] $[***] $[***]
Model 7302 $[***] $[***] $[***] $[***]
Model 7303 $[***] $[***] $[***] $[***]
--------------------------------------------------------------------------------
T3 WAN Probes
-------------
Model 7401 $[***] $[***] $[***] $[***]
--------------------------------------------------------------------------------
Multiport WAN Probes
--------------------
Model 7501 $[***] $[***] $[***] $[***]
Model 7502 $[***] $[***] $[***] $[***]
Model 7503 $[***] $[***] $[***] $[***]
Model 7504 $[***] $[***] $[***] $[***]
--------------------------------------------------------------------------------
ATM LAN Probe
-------------
Model 8100 $[***] $[***] $[***] $[***]
--------------------------------------------------------------------------------
WAN TAPS
--------
T1/E1 WAN Taps $[***] $[***]
T3/E3 WAN Taps $[***] $[***]
--------------------------------------------------------------------------------
Fiber Optic Splitter
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OPT-SPLT1 $[***] $[***]
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100BaseT Full Duplex Taps
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FDX-TX $[***] $[***]
FDX-FX $[***] $[***]
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4.03P1M1 Rev D Effective January 15, 1998 10
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40
EXHIBIT C
LICENSE TERMS AND CONDITIONS
Paradyne shall license the Licensed Product, subject to terms and conditions
substantially similar to those set forth in the remainder of this Exhibit.
Terms and Conditions
The Licensed Product is owned by Paradyne and its suppliers, and is protected by
the copyright laws of the United States and other countries, and by
international treaty provisions.
Paradyne and its suppliers retain ownership of the Licensed Product and no
rights are granted to you other than a license to use the Licensed Product,
subject to the terms expressly set forth in this license agreement ("License").
This License imposes certain restrictions on your use of the License Product.
YOU MAY:
- use the Licensed Product with Paradyne FrameSaver Products purchased
within this package;
- make copies of the Licensed Product for backup purposes, but you may not
use the backup to make copies other than as a replacement for the original
copy. You must include on the backup copy all copyright and other notices
included on the Licensed Product.
YOU MAY NOT:
- copy any part of the Licensed Product other than for backup or duplicate
any of the Licensed Product onto ROM or similar devices that were not
supplied by Paradyne unless permitted above;
- copy any of the written materials accompanying the Licensed Product;
- use the Licensed Product on ANY DSU/CSU, IMUX or xDSL product, or other
hardware except as permitted above;
- transfer or assign your rights to use the Licensed Product except upon a
transfer of any associated Paradyne hardware with which or for which the
Licensed Product was supplied, and then only if the transferee agrees to be
bound by all of the terms of this License;
- decompile, disassemble, reverse engineer, or modify, in any way, any part
of the Licensed Product, except to the extent that the foregoing
restriction is expressly prohibited by applicable law.
YOU ACKNOWLEDGE AND AGREE THAT:
- the structure, sequence, organization and source code of the Licensed
Product are valuable trade secrets of Paradyne and its suppliers;
- export of the Licensed Product may be restricted by the export control laws
of the United States of America and other countries. You agree to comply
with all such export control laws;
- upon any violation of any of the provisions of this License, your rights to
use the Licensed Product shall automatically terminate and you shall be
obligated to return to Paradyne or destroy all of the Licensed Product;
- your opening of this package or use of the Licensed Product signifies that
you have read and agreed to the terms of this License. You further agree
that it is the complete and exclusive
Marketing& license Agreement Paradyne and NetScout Confidential page 20
NetScout and Paradyne Use Pursuant to Company Procedures 01/26/98
41
EXHIBIT C
LICENSE TERMS AND CONDITIONS (CONTINUED)
statement of the agreement between Paradyne and you, and that it
supersedes any proposal or prior agreement, oral, or written, and any
other communications between us relating to the subject matter of this
License. In addition, you agree that none of the foregoing terms and
conditions may be modified except in writing signed by you and
Paradyne;
- this License shall be governed by Florida law, other than its
provisions concerning the applicability of laws of other jurisdictions.
Limited Warranty
Limited Warranty. Paradyne warrants that under normal use and conditions the
Licensed Product will be free from significant defects in materials and
workmanship for a period of ninety (90) days from the date of purchase by you
from Paradyne or Paradyne's authorized reseller or distributor.
Customer Remedies. Paradyne and its suppliers' entire liability and your
exclusive remedy shall be, at Paradyne's option, (i) repair or replacement of
the Licensed Product that fails to meet Paradyne's Limited Warranty, or (ii)
return of the price paid. Paradyne and its suppliers shall have no
responsibility, warranty or other obligation whatsoever as a result of (a) the
use of the Licensed Product in a manner inconsistent with the accompanying
manuals and this License, (b) any modifications made to the Licensed Product,
or (c) failure of the Licensed Product as a result of accident, abuse, or
misapplication.
NO OTHER WARRANTIES. THE WARRANTIES SET FORTH ABOVE ARE EXCLUSIVE AND IN LIEU
OF ALL OTHER WARRANTIES. PARADYNE AND ITS SUPPLIERS MAKE NO OTHER WARRANTIES,
EXPRESS OR IMPLIED, AND PARADYNE AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL OTHER
WARRANTIES, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR
SATISFACTORY QUALITY, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND
ANY WARRANTY OF NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. MOREOVER, THE
PROVISIONS SET FORTH ABOVE STATE THE ENTIRE RESPONSIBILITY OF PARADYNE AND ITS
SUPPLIERS AND YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY BREACH OF ANY
WARRANTY.
LIMIT OF LIABILITY. UNDER NO CIRCUMSTANCES AND UNDER NO THEORY OF LIABILITY
SHALL PARADYNE OR ITS SUPPLIERS BE LIABLE FOR COSTS OF PROCUREMENT OF
SUBSTITUTE PRODUCTS OR SERVICES, LOST PROFITS, LOST SAVINGS, LOSS OF INFORMATION
OR DATA, OR ANY OTHER SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES,
ARISING IN ANY WAY OUT OF THE SALE, LICENSE OR USE OF, OR INABILITY TO USE, THE
LICENSED PRODUCT, EVEN IF PARADYNE AND ITS SUPPLIERS HAVE BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL
PURPOSE OF ANY LIMITED WARRANTY.
Marketing & License Agreement Paradyne and NetScout Confidential page 21
NetScout and Paradyne Use Pursuant to Company Procedures 01/26/98
42
EXHIBIT D
PRODUCT SUPPORT AND PRIORITIZATION GUIDELINES
Paradyne will provide Tier 1 and Tier 2 Support for Customers in the same manner
that it provides such support for its other similar products. NetScout will
provide Tier 3 Support via telephone or electronic mail, five (5) days per week,
during NetScout's normal business hours (8 am - 6 pm, EST), and, and via a
paging service for after hours, weekend and holiday escalations. Paradyne shall
provide NetScout feedback for any Licensed Product bugs and potential fixes to
the bugs, which will be reviewed by NetScout and subsequently incorporated into
the Licensed Product, as required. In the event Paradyne is unable to resolve a
Customer's problem and NetScout Tier 3 Support is required, Paradyne will
escalate the problem to NetScout per a Customer assigned priority level.
NetScout will respond as follows:
Priority 1: The Customer's production network is down, causing critical impact
to business operations.
NetScout Response: Within four (4) hours, NetScout will provide Paradyne with a
schedule for resolving the problem and will identify the resources which will be
committed to managing the problem resolution. NetScout will make best efforts to
resolve the problem within two (2) days. NetScout will dedicate an individual to
manage the problem until a satisfactory Customer solution has been provided.
Priority 2: The Customer's production network is severely degraded, impacting
significant aspects of business operations.
NetScout Response: Within eight (8) hours, NetScout will provide Paradyne with a
schedule for resolving the problem and will identify the resources which will be
committed to managing the problem resolution. NetScout will make best efforts to
resolve the problem within one (1) week's time. NetScout agrees to commit
whatever resources are commercially reasonable and necessary to manage the
problem until a satisfactory Customer solution has been provided.
Priority 3: The Customer's network performance is degraded, but with little
impact on business operations.
NetScout Response: Within one (1) week, Paradyne will provide Paradyne with a
schedule for resolving the problem. Resources will be assigned, upon
availability.
Critical On-Site Support. In the event critical on-site support is required,
NetScout will make such services available at a charge of [***] dollars per hour
($[ ]), excluding travel and reasonable meal expenses.
Repair & Maintenance Charges (Single Repair)
6000 family $[***] unit
7000 family $[***] unit
Marketing & License Agreement Paradyne and NetScout Confidential page 22
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EXHIBIT D
PRODUCT SUPPORT AND PRIORITIZATION GUIDELINES
Maintenance Agreements (h/w & s/w)
6000 family $[***] year
7000 family $[***] year
Repair Services. NetScout will repair all defective Products within fifteen
(15) days of receipt of the NetScout Products at NetScout's Westford MA
facility. All returned units must be accompanied by a Return Authorization (RA)
number and defective tag which identifies the alleged failure with the unit.
Paradyne shall be responsible for transportation expenses to and from
NetScout's facilities.
Priority Shipments. Provided PRODUCTS are in NetScout's inventory, NetScout
will ship PRODUCTS within twenty-four (24) hours of order receipt to assist
Paradyne in its delivery of critical service and support to customers. In the
event PRODUCTS are not in NetScout's inventory, NetScout will make best efforts
to ship as expeditiously as possible.
Marketing & License Agreement Paradyne and NetScout Confidential page 23
NetScout and Paradyne Use Pursuant to Company Procedures 01/26/98
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*** Confidential Treatment Requested
