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EXHIBIT 10.17
AGREEMENT FOR PURCHASE OF PRODUCTS
BETWEEN
ACCELERATED NETWORKS, INC.
AND
SIEMENS INFORMATION AND COMMUNICATION NETWORKS, INC.
JANUARY 21, 1999
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AGREEMENT FOR PURCHASE OF PRODUCTS
CONTENTS
PARTIES AND SIGNATURES
ARTICLE I DEFINITIONS
1.0 TERMS DEFINED
ARTICLE II CONFIDENTIALITY PROVISIONS
2.0 CONFIDENTIAL INFORMATION
2.1 DISCLOSURE BETWEEN THE PARTIES
2.2 CONFIDENTIAL INFORMATION OF THIRD PARTIES
2.3 RETURN OF CONFIDENTIAL INFORMATION
ARTICLE III PRODUCT
3.0 PRODUCT DESCRIPTION
3.1 INCOMPATIBILITIES
3.2 SPECIAL PRODUCTS
3.3 PRODUCT CHANGES
3.4 PRIVATE LABEL
3.5 CUSTOM SOFTWARE
ARTICLE IV PRICES
4.0 PRODUCT AVAILABILITY FOR PURCHASE
4.1 PRICE WARRANTY
4.2 PRICE LIST
4.3 FORECAST
4.4 DISCOUNTS
4.5 PURCHASE COMMITMENT
ARTICLE V PURCHASING TERMS AND CONDITIONS
5.0 ORDER SERVICING
5.1 CHANGE ORDER
5.2 SCHEDULE COMMITMENTS
5.3 PACKING
5.4 SHIPPING
5.5 RECEIVING AND INSPECTION
5.6 TITLE AND RISK OF LOSS
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ARTICLE VI PAYMENT
6.0 PAYMENT TERMS
6.1 INVOICING
ARTICLE VII WARRANTY
7.0 WARRANTY
7.1 YEAR 2000 COMPLIANCE WARRANTY
7.2 WARRANTY EXCLUSIONS
ARTICLE VIII REPAIR SERVICE
8.0 REPAIRS NOT COVERED UNDER WARRANTY
ARTICLE IX TRAINING
9.1 TRAINING
ARTICLE X DOCUMENTATION
10.0 SPECIFICATIONS OR DRAWINGS
10.1 DOCUMENTATION
10.2 USE OF INFORMATION
10.3 REPRODUCTION OF DOCUMENTATION
ARTICLE XI COMPLIANCE
11.0 RADIO FREQUENCY ENERGY STANDARDS
11.1 REGISTRATION
11.2 TOXIC SUBSTANCES AND HAZARDOUS MATERIAL
11.3 COMPLIANCE WITH LAWS
11.4 COMPLIANCE WITH CERTIFICATION TESTS REQUIRED
BY NORTH AMERICAN PUBLIC NETWORK PROVIDERS
ARTICLE XII TERM AND TERMINATION
12.0 TERM OF AGREEMENT
12.1 TERMINATION OF AGREEMENT
ARTICLE XIII SOFTWARE
13.0 RIGHTS TO SOFTWARE
13.1 SOFTWARE ESCROW
ARTICLE XIV GENERAL PROVISIONS
14.0 TRANSFERABILITY
14.1 DISCLAIMER OF AGENCY
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14.2 PUBLICITY
14.3 NOTICES
14.4 GOVERNING LAW
14.5 ARBITRATION
14.6 NON-WAIVER
14.7 EXECUTION OF FURTHER DOCUMENTS
14.8 OTHER REMEDIES
14.9 EFFECT OF HEADINGS
14.10 PATENT AND OTHER PROPRIETARY RIGHTS
INFRINGEMENT INDEMNIFICATION
14.11 MARKINGS
14.12 CONTINGENCY
14.13 DEVELOPMENTS BY SIEMENS
14.14 VALIDITY
14.15 LIMITATION OF LIABILITY
ATTACHMENTS:
Attachment A Product Structure
Attachment B Furnished and Related Materials
Attachment C Product Specifications
Attachment D Non-Disclosure Agreements
Attachment E Price Lists
Attachment F Forecast
Attachment G Escrow Agreement
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AGREEMENT FOR PURCHASE OF PRODUCTS
THIS AGREEMENT, having an Effective Date of January 21st, 1999, is
hereby entered into between ACCELERATED NETWORKS, INC., a California
corporation, having a principal place of business at 000 Xxxxxxx Xxxxx,
Xxxxxxxx, Xxxxxxxxxx 00000 (hereinafter referred to as Company), and SIEMENS
INFORMATION AND COMMUNICATION NETWORKS, INC., a Delaware corporation, having a
principal place of business at 000 Xxxxxx Xxxxx Xxxxxxx, Xxxx Xxxxx, Xxxxxxx
00000 (hereinafter referred to as Siemens).
WHEREAS, Siemens desires to purchase Products (hereinafter described)
and thereafter desires to have Product delivered for Siemens' use in Siemens
products that may be offered for resale to third parties, and
WHEREAS, Company is interested in selling product to Siemens.
NOW THEREFORE, in consideration of the mutual covenants contained
herein, it is agreed as follows:
(a) The Articles and Attachments contained in this Agreement
constitute the entire agreement between the Parties;
(b) No modifications or waiver of any of the provisions, or any
future representation, promise, or addition shall be binding
upon the Parties unless agreed to in writing;
(c) This Agreement supersedes and cancels any prior agreements
between the parties with respect to the subject matter contained
herein.
IN WITNESS WHEREOF, the Parties hereto have as of the Effective Date
duly executed this Agreement, including Attachments A through G which are
incorporated herein and made a part hereof, by the respective representatives
thereunto duly authorized.
ACCELERATED NETWORKS, INC. SIEMENS INFORMATION AND
COMMUNICATIONS NETWORKS, INC.
/s/ Xxxxxx Xxxxxxxx /s/ Xxxx From
--------------------------- -------------------------
By: Xxxxxx Xxxxxxxx By: Xxxx From
Title: President & CEO Title: President & CEO
Date: January 17, 1999 Date: January 20, 1999
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ARTICLE I
DEFINITIONS
1.0 TERMS DEFINED
As used in this Agreement, the following terms shall have the following
respective meanings (in singular or plural usage, as indicated by the
context).
1.1 "Catalog" means any document that describes Company Products that are
generally available for sale through normal distribution channels.
1.2 "Customer" means an end-user of Product who, at the time of acquisition
of the Product, has taken possession of the Product for its end use and
does not intend to further distribute the Product.
1.3 "Effective Date" of this Agreement means the date first written above.
1.4 "Parties" means Company and Siemens.
1.5 "Product" means the Product(s) specified in Attachment A including all
generally sold, (i) standard spare parts, (ii) improvements, upgrades,
corrections, modifications, alterations, revisions, or updates, to the
specified Products made by Company during the Term of this Agreement.
1.6 "Specifications" means the technical specifications for the Products,
including, but not limited to Functional Requirements Specifications,
User Manuals, Performance Specifications and Configuration Guidelines as
set forth in Attachment C and revised by the Company from time to time.
1.7 "Related Materials" means all and any kind of information, whether or
not in documentary form, used or useful in or relating to, the use,
maintenance or marketing of Product including, but not limited to system
manuals, program manuals, test and diagnostic information, maintenance
information, and operating procedures, as more specifically set forth in
Attachment B.
1.8 "Software" means the computer instructions, including firmware, in
machine-readable language provided as part of a Product or comprising a
Product.
1.9 "Source Code" means human-readable source statements for the Software
including, without limitation, program listings, data definition models,
indices, structure tables, system flow charts, program flow charts,
defined terms, file layouts and program narratives.
1.10 "Spares" means any sub assembly generally provided by Company for field
replacement for Products including, but not limited to, components,
boards, fasteners, power supplies,
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cables, wiring, casings and other associated materials as more
specifically specified in Attachment A.
1.11 "Special Product" means any special feature or capability that is not a
part of the Company's generally offered Product, not contained in the
general Product Catalog and Price List, and generally built-to-order.
Special Products covered by this Agreement shall be specified in
Attachment A.
1.12 "Standard Price List" means Company's published listing of its standard
prices for which Company will sell its Products as such list is updated
from time to time by the Company as stipulated in Article IV.
1.13 "Siemens Discounted Price List" means the price list at which Siemens
will purchase the Company's product.
1.14 "Term of this Agreement" means the term of this Agreement, including any
renewal periods, as specified in Section 12.0.
ARTICLE II
CONFIDENTIALITY PROVISIONS
2.0 CONFIDENTIAL INFORMATION
For the purpose of this Agreement, "Confidential Information" shall mean
any information and data of a confidential nature, including, but not
limited to, proprietary, developmental, technical, marketing, sales,
operating, performance, cost, know-how, business and process
information, computer programming techniques, and all record bearing
media containing or disclosing such information and techniques provided
such information is conspicuously marked as being Confidential.
2.1 DISCLOSURE BETWEEN THE PARTIES
2.1.1 All Confidential Information exchanged between the Parties
pursuant to this Agreement:
(a) shall not be distributed, disclosed, or disseminated in
any way or form by the receiving Party to anyone except
its own employees, including Siemens AG, who have a
reasonable need to know such Confidential Information to
perform such Party's obligations hereunder;
(b) shall be treated by the receiving Party with the same
degree of care to avoid disclosure to any third party as
is used with respect to the receiving Party's own
information of like importance which is to be kept
secret. The receiving Party shall be liable for
disclosure of Confidential Information of the disclosing
Party only if such care is not used. The
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burden shall be upon the receiving Party to show that
such care was used; and
(c) shall not be used by the receiving Party for its own
purpose, except as otherwise expressly stated herein,
without the express written permission of the disclosing
Party; and
(d) shall remain the property of and be returned to the
disclosing Party (along with all copies, embodiments and
derivatives thereof) within thirty (30) days of receipt
by the receiving Party of a written request from the
disclosing Party setting forth the Confidential
Information to be returned.
2.1.2 The obligations of the above paragraph shall not apply, however,
to any information which:
(a) is already in the public domain or becomes available to
the public through no breach of this Agreement by the
receiving Party;
(b) was in the receiving Party's possession prior to receipt
from the disclosing Party as proven by the receiving
Party's written records;
(c) is received independently on a non-confidential basis
from a third party free to disclose such information to
the receiving Party; or
(d) is independently developed by the receiving Party as
proven by its written records prior to receipt from the
disclosing Party; or
(e) is the subject of subpoena or court order.
2.1.3 Either Party shall have the right to refuse to accept any
Confidential Information under this Agreement.
2.1.4 Siemens shall be free to use and distribute Products and Related
Materials in which Company's Confidential Information is
embedded and disclosed; provided, Siemens shall not distribute
or disclose any Related Materials which are not meant to be
generally distributed, including without limitation, test,
diagnostic and maintenance information and which are
conspicuously marked "Confidential".
2.1.5 No license to the receiving Party, under any trademark, patent
or copyright, or applications which are now or may thereafter be
owned by the disclosing Party, is either granted or implied by
the conveying of Confidential Information to the receiving
Party.
2.1.6 Each Party shall advise its employees, personnel, agents, staff
and representatives of the terms hereof and require them to
observe the terms and conditions hereof.
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2.2 CONFIDENTIAL INFORMATION OF THIRD PARTIES
Neither party shall communicate or otherwise disclose to the other,
during the Term of this Agreement, confidential or proprietary
information of third parties unless such third parties have consented to
such disclosure.
2.3 RETURN OF CONFIDENTIAL INFORMATION
Upon request of the disclosing Party, copies, derivatives and
embodiments of the disclosing Party's Confidential Information shall be
promptly returned to the disclosing Party by the receiving Party, except
to the extent such information is required by Siemens to perform its
support obligations with respect to the Products.
ARTICLE III
PRODUCT
3.0 PRODUCT DESCRIPTION
Company shall sell Products to Siemens pursuant to this Agreement,
provided no Software shall be sold, but shall be licensed to Siemens
pursuant to all the terms and conditions of this Agreement.
Company shall make available for Siemens' purchase (in the case of
hardware) and or license (in the case of Software), all improvements,
upgrades, enhancements, corrections, modifications, alterations,
revisions, updates, made to Product and Related Materials during the
Term of this Agreement on terms substantially as provided herein
provided that none of the foregoing shall include any products,
technology, information or the like developed or resulting from
Company's work for other parties and such are not made generally
available for sale by the Company.
3.1 INCOMPATIBILITIES
During the Term, Company agrees to notify Siemens in writing of
technical changes, enhancements, alterations, improvements or other
modifications to the Products that could render such altered Product
incompatible with previously provided Products or which would materially
alter the manner in which such modified Products interface with Siemens'
equipment using Siemens' previously specified interfaces. Such notice
shall be provided at least ninety (90) days prior to delivery to allow
Siemens, in the exercise of prompt due diligence, to test and determine
any necessary modifications to its equipment or to the Product to ensure
the continued marketability of the modified Product by Siemens, prior to
delivery of Product with such changes, enhancements, alterations,
improvements or other modifications.
The Company and Siemens agree to establish a testing strategy that will
minimize the potentiality of Product incompatibility.
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3.2 SPECIAL PRODUCTS
Special Products may be requested, quoted and developed from time to
time and added to this Agreement. Such Special Product, and associated
prices shall only become part of this Agreement on written approval of
both Parties. Once a Special Product becomes available in company's
Catalog, it shall no longer be considered a Special Product.
3.3 PRODUCT CHANGES
3.3.1 Company shall advise Siemens in writing of all changes to
Product that impact (a) reliability, (b) the Specifications, or
(c) form, fit or function in accordance with the procedures
specified herein.
3.3.2 Company may at any time make changes in the Product, or modify
the drawings and Specifications relating thereto, or substitute
Product of later design to fill an order, provided the changes,
modifications or substitutions under normal and proper use do
not impact upon the Product's (a) reliability, (b) the
Specifications, or (c) form, fit or function. For such changes,
Company shall notify Siemens in writing not later than thirty
(30) days after such change has been implemented.
Except in the case of Mandatory Changes, Company shall send
copies of a written change modification to Siemens ninety (90)
days prior to the effective date of each change to Product which
impacts on form, fit, function, reliability, or Product
Specifications. Company shall provide Siemens' with samples of
the changed Product for testing. Siemens will either return the
Product to the Company or purchase the Product at Siemens
discount price within 30 days.
"Mandatory Changes" are those changes required to correct an
extremely unsatisfactory condition requiring immediate action,
such as changes for safety or to meet existing Product
Specifications. In such cases Company shall promptly send
Siemens a written change notification. Company shall provide
with each change notification the following information: (a)
Product change number; (b) a detailed description of the change;
(c) reason for the change; (e) description of the impact of the
change; (f) price impact, if any; (g) proposed date for changes.
Company shall provide Siemens with samples of the changed
Product for testing.
In the event that Siemens reasonably rejects such change to a
Product, Siemens shall advise Company of such determination as
soon as reasonably possible, but in no event more than thirty
(30) days from the date on which the sample of the changed
Product was received by Siemens. Siemens' failure to so notify
Company shall be deemed an acceptance of the change. Company
shall not furnish any such changed Products on any of Siemens
orders if the change has been reasonably rejected.
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3.4 PRIVATE LABEL
3.4.1 Siemens intends to private label and market any Products
purchased hereunder under Siemens own trade names and trade
dress. The Company may agree to private label such Products,
provided that (a) the costs incurred by Company for changes to
Products and for altered materials mandated ` by such private
labeling shall be reimbursed to Company by Siemens, and that (b)
the parties shall mutually agree to any other relevant terms and
conditions of such private label services, including the
procedure for reimbursement of costs associated with private
labeling.
3.4.2 Company may, in good faith, order private label special
materials in quantities in excess of Siemens' orders, based upon
Siemens' forecasts, and Siemens shall reimburse Company for all
such materials and reasonable inventory costs associated, if
such materials are not utilized in Products for Siemens by the
end of the Annual Delivery Period as established in 4.3.
3.5 CUSTOM SOFTWARE
3.5.1 Custom Software as used herein shall mean Software requested by
Siemens and developed exclusively by Company for Siemens.
Siemens and Company shall mutually agree on the process for
contracting the development of Custom Software, payment terms
and the rights of the Parties to such custom Software prior to
the commencing of development work by Company on a request by
request basis.
ARTICLE IV
PRICES
4.0 PRODUCT AVAILABILITY FOR PURCHASE
Company agrees to have the Product and Related Materials available for
purchase and/or license, in the case of Software, by Siemens during the
Term of this Agreement at prices as set forth herein and with delivery
lead times reasonable with respect to similar Products of Company.
Company agrees that, when the Product is considered "generally
available" in the marketplace, the normal delivery performance will be
45 days after order acknowledgment or better for forecasted Product, so
long as Siemens is generally ordering in accordance with its forecasts.
Company agrees that during the Term of this Agreement it shall, if
requested by Siemens and at Siemens expense as mutually agreed, maintain
in inventory units of Product available for delivery to Siemens above
and beyond that being manufactured in response to Siemens' purchase
orders and scheduled for delivery hereunder. Siemens may order and take
delivery of such inventory in the event Siemens requires additional
quantities for sale or shipment. In the event of anticipated labor
disturbances, shortages of materials, or
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other conditions or events which could adversely interrupt deliveries by
Company hereunder, Company agrees to advise Siemens as soon as
reasonably possible and at Siemens' request, use commercially reasonable
efforts to manufacture, sell, and deliver to Siemens, in advance,
quantities originally scheduled for delivery during such period when
such interruptions are anticipated.
The site and facilities where Company shall manufacture the Product is
Company's facility in Moorpark, CA or at other sites of which Company
shall advise Siemens.
Upon advance notice, with the concurrence of the Company which will not
be unreasonably withheld, and subject to the Confidentiality provisions
contained herein, Siemens employees, agents or representatives may visit
Company's manufacturing premises during normal business hours to observe
Company's performance of its obligations under this Agreement.
4.1 PRICE WARRANTY
Subject to Section 4.2, during the Term of this Agreement, the terms,
conditions and prices for Products and Related Materials under which
Siemens may purchase the Product shall be no less favorable to Siemens
than those which Company provides to any other OEM purchasing the same
Product, or Product with similar functionality, in like quantities over
like time periods under like terms, conditions, delivery times and under
similar non-cancelable purchase commitments.
Company agrees that the list prices established for the sale of the
Product to Siemens are reasonable with respect to similar Products of
Company.
Company and Siemens mutually agree to establish regular meetings to
assess performance under the Agreement and to mutually resolve issues or
problems that might arise. These meetings should be conducted quarterly
and whenever required.
Company will, in concert with Siemens, periodically assess the fair
market value of the Product and may adjust the price of the Product
according to finding of such assessments.
4.2 PRICE LIST
The Company's Standard Price List and the Siemens Discounted Price List
for Product, Spares, and Special Products, during the Term of this
Agreement are specified in Attachment E. Except as set forth in Section
4.2, the prices contained in the Siemens Discounted Price List in
Attachment E shall not be increased except as mutually agreed in writing
by the Parties. Company will notify Siemens prior to any changes in the
Company's Standard Price List. Whenever a change to the Company's
Standard Price List results in a price reduction, Company will update
the Siemens Discounted Price List to reflect such price reduction(s) in
the Company's Standard Price List. Products added to the Agreement for
purchase or license shall be at prices as mutually agreed at the time of
adding to the price list.
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Prices under this Agreement are based upon Siemens' forecast of a
purchase level of $ 38,000,000 over the first three years of the
Agreement, of which no less than 10% will be purchased prior to
September 30, 1999, 30% between October 1, 1999 and September 30, 2000
and 60% between October 1, 2000 and September 30, 2001. In the event
that Siemens fails to purchase Products in the quantities as set forth
herein, Company shall be entitled, at its sole discretion, to adjust
Siemens' prices for Products on a going forward basis.
4.3 FORECAST
Siemens shall forecast its anticipated Product requirements for the Term
of this Agreement. An initial first year's forecast will be part of this
Agreement, as shown in Attachment F. The forecasts will be scheduled
according to the Siemens' fiscal year which is based on a 12 month
period ending in September of each year. This period of time constitutes
the Annual Delivery Period
Forecasted quantities and delivery dates are subject to change and do
not constitute a binding commitment to buy on the part of Siemens.
However, Siemens shall, on an on-going monthly basis, update the one
year forecast using its commercially reasonable best effort to provide
an accurate forecast of demand for the succeeding 12 month period.
Such forecasts are for information and planning purposes only. However,
Siemens shall make every reasonable effort to comply with its forecasts.
For each Annual Delivery Period, Siemens will provide the Company with
its forecast of purchases for that period. The forecast will indicate
expected and worst case scenarios. In the event that Siemens' orders
vary from Forecast, Company shall have the right to reduce or increase
forecast quantities, as applicable, and, while Company shall use its
commercially reasonable best efforts to accept all orders and meet lead
times, it shall not be obligated to accept orders for quantities in
excess of those forecast or which are inconsistent with Siemens'
previous purchase levels. Furthermore, beginning with the calendar
quarter ending March 31, 2000, if Siemens fails to achieve at least
seventy-five percent (75%) of the applicable quarterly forecasted
purchase amount for two consecutive prior calendar quarters, Accelerated
shall be entitled to terminate this Agreement pursuant to Section 12.0;
provided, Accelerated must exercise such right to terminate within
thirty (30) days of the last applicable quarter or be required to wait
until the end of the next applicable quarter.
4.4 DISCOUNTS
4.4.1 Subject to Section 4.2, Company agrees to sell Product to
Siemens at discounts from Company's Standard Price List. The
Siemens discounted price is as shown in the Siemens Discounted
Price List in Attachment E.
Spare part prices and discounts are specified in Attachment E.
4.4.2 Special Products prices will be individually quoted, Special
Products may be added to the Price List if mutually agreed to in
writing by both Parties.
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4.4.3 All prices are quoted in U.S. dollars and are F.O.B. Company
factory and do not include, sales or other taxes, import duties,
special packaging, shipping or insurance charges. Such
additional charges shall be separately stated on the applicable
invoice and paid by Siemens.
4.5 PURCHASE COMMITMENT
Within 15 days of execution of this Agreement, Siemens will place an
order to meet Siemens' estimation of its requirements for training, demo
and beta testing. These Products will be purchased with a special
discount for non- revenue producing Product as established in ATTACHMENT
E.
Within thirty (30) days of execution of this Agreement, Siemens will
place an order for equipment on the Company that will be used for
Customer sales. This value of this order will be $500,000. The delivery
of Product for this order may be rescheduled per the terms and
conditions of this Agreement with the provisions that in the absence of
"Extenuating Circumstances" as set forth below, (a) the order is
non-cancelable and (b) payment must be made no later than October 1,
1999. Extenuating Circumstances will apply if Company fails to meet its
obligations under this Agreement in terms of Product features, Product
availability, Product quality, Product delivery, or warranty and
maintenance support. In such cases, Siemens may, at its sole discretion,
notify the Company in writing of the Company's failure to perform and
rescind Siemens' remaining obligation under the purchase order.
ARTICLE V
PURCHASING TERMS AND CONDITIONS
5.0 ORDER SERVICING
Siemens in its sole discretion may purchase Product, Special Products,
and Spares by issuing written purchase orders to Company. Acceptance by
Company of Siemens order under the terms and conditions of this
Agreement shall be indicated by written acceptance. Company agrees to
acknowledge all purchase orders within two (2) business days and to
accept all valid purchase orders within five (5) business days.
So long as the original order complies with the Agreement, the Company
must accept the order and deliver the Product.
Any additional or different terms or conditions expressed by Siemens or
Company in an order or acknowledgment shall be void unless expressly
agreed to in writing by the other party.
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5.1 CHANGE ORDER
Subject to Section 5.2.4, Siemens shall have the right, by written
change order, to make changes in any one or more of the following: (a)
quantity of goods to be delivered; (b) method of shipping or packing;
(c) place of delivery; and (d) delivery schedules. In addition, if any
such change order causes an increase or decrease in the cost or the time
required for performance of the work under the order, an equitable
adjustment shall be made in price and/or delivery schedule, and the
order shall be modified accordingly.
Orders may not be cancelled after shipment. Once accepted, Company shall
not change an order without written approval by Siemens.
5.2 SCHEDULE COMMITMENTS
5.2.1 The requested delivery dates applicable to each order will be
set forth in such order. Delivery dates will be confirmed by
Company's acknowledgement. Company agrees not to ship Product
prior to the agreed upon delivery date without Siemens' prior
written authorization.
5.2.2 Subject to the provisions contained in the Section 14.12
CONTINGENCY, in the event Company exceeds the agreed upon
delivery date by more than five (5) business days, through no
fault of Siemens, then in addition to all other rights and
remedies provided for in this Agreement or otherwise and without
any liability or obligation to Siemens, Siemens shall have the
right to: (a) cancel the order or change such order if the delay
results in the cancellation or change of the order from the
Siemens Customer or (b) extend such delivery date to a later
date.
5.2.3 If an order is canceled pursuant to the above, Siemens shall
have the right to retain or return any or all Product received
by or paid for under such order. Company shall reimburse Siemens
the costs of shipping the Product returned and amounts, if any,
previously paid by Siemens for the Product; provided, however,
if such order is part of a blanket purchase order, Siemens shall
not have the right to return any Products previously delivered
in connection with any prior scheduled shipments delivered under
such blanket purchase order. Siemens shall pay for any Product
retained at the prices set forth in Attachment E, if applicable,
and quantity discounts, if any, shall be applied on the basis of
the quantity specified in the order.
5.2.4 If Siemens requests, for reasons other than covered by Section
14.12 CONTINGENCY, that shipments be postponed beyond the date
shown on an order and the date shown on the order is within
forty-five (45) days succeeding the date of the receipt of the
order postponement, Company may invoice Siemens as of the
original scheduled delivery date for the Product manufactured
hereunder. Title for such delayed Product shall pass to Siemens
on date of invoice.
The following schedule will be used to establish Siemens'
obligations when it requires that shipments be rescheduled
beyond the date shown on an order:
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DAYS PRIOR TO SCHEDULED DELIVERY CANCELLATION CHARGE
-------------------------------- -------------------
Less than 45 days Siemens Commits to Purchases
46 - 60 days 10% Restocking Fee
More than 60 Days None
Siemens shall not reschedule any purchase order more than once.
5.2.5 All Product invoiced to Siemens in accordance with the foregoing
paragraph shall be marked conspicuously as Siemens' property,
and stored by Company in a reasonably safe manner separated from
any other material stocks. Such Product shall be shipped out as
ordered by Siemens. Company shall have no liability for any loss
or damage to such Product while stored by Company unless such
loss or damage arises from Company's gross negligence or willful
misconduct. Company agrees to cooperate with Siemens in regard
to the safe storage and management of Siemens" property while
such property is stored at the Company's facility. Company
agrees to secure proper storage and insurance for Siemens'
property when so requested in writing by Siemens. Siemens shall
reimburse Company for storage and insurance costs for such
Product.
Company shall advise Siemens in writing of the specific location
where Product is stored pursuant to Section 5.2.5 and of any
subsequent movement of the Product. Company agrees, upon request
by Siemens, to execute and deliver to Siemens a xxxx of sale
evidencing conveyance/license of such Product, free from liens
and encumbrances, together with any other document such as a
bailment agreement, warehouse receipt, lease (on storage space),
mortgage, deed of trust, or surety bond as Siemens may deem
reasonably necessary to secure title in such Product against
third parties, all of which documents shall be in a form
reasonably acceptable to Siemens.
5.3 PACKING
5.3.1 Company shall, at no charge, unless specified elsewhere in this
Agreement, package and pack Product in a manner which will
provide reasonable protection against damage (including static)
during shipment, handling and storage in reasonably dry unheated
quarters with temperatures and humidity levels within -30 to +65
degrees Celsius, and up to 95% relative humidity, respectively.
Corrugated shipping containers shall comply with requirements of
Rule 41 of the Uniform Freight Classification. Containers of any
type that are too heavy or too large to be palletized shall be
skidded to facilitate fork truck and/or mechanical handling.
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5.3.2 Company shall xxxx all such packaging for identification
purposes in accordance with ARTICLE XI, COMPLIANCE. Company
shall xxxx Products in conformance with Company's published
documentation. Items which are intended to be field replaceable
by Siemens shall be serialized for tracking and control
purposes. Serial numbers shall be located to allow easy capture
by craftspersons, without the necessity of disassembly of the
field replaceable item and/or interruption of service to
Siemens' Customers.
5.4 SHIPPING
Unless specifically agreed to by Siemens and Company, all shipments to
Siemens will be FOB Shipping Point, Freight Collect utilizing one of the
approved and preferred carriers listed below. If questions arise
concerning shipments Company is directed to contact the Siemens ICN
Transportation Department at telephone (000) 000-0000 or 000-0000.
5.4.1 Siemens' Approved Carriers:
Ground Parcel Shipments:
UPS Ground - Consignee Billing
RPS Ground
LTL Motor Freight - Southeast Regional:
Southeastern Freight Lines
Xxxxxxx Express
LTL Motor Freight - Longhaul:
Consolidated Freightways
Overnite Transportation
Air Freight - Envelopes and packages up to 20 lbs.:
FEDEX
Air Freight - Packages 21 lbs. and over:
Xxxxx Air Freight
Burlington Air Express
Deferred Air Freight:
LEP/Profit Air Freight
International Envelope/Non-dutiable Parcels:
FEDEX
International Package/Commercial Orders:
Xxxxxx & Xxxxx, Inc.
(must consign to Orlando International Airport (MCO)
Van Line and TL Shipments:
Contact Siemens Traffic Department.
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5.4.2 Additional Instructions:
- Consolidate each day's shipments into a single shipment
whenever possible.
- Route all motor freight and air shipments "Freight
Collect".
- Unless otherwise requested by exception, do not declare
an "insured value" with the carrier as Siemens is
self-insured.
- Air or other premium shipments must be authorized by a
Siemens ICN Purchasing Agent and will be routed via
second day service unless instructed otherwise.
- Excess transportation charges resulting from
non-compliance may be billed to the supplier or deducted
from the supplier's invoice.
- No "COD" or "FCCOD" deliveries unless previously agreed
to by Siemens.
- Contact the Traffic Department in the event of carrier
service failure(s) or if a deviation from these
instructions is desired.
5.4.3 Unless prior approval has been provided in writing, all
shipments NOT in compliance with these freight terms or carrier
routing instructions will be refused at the destination.
5.4.4 Unless otherwise agreed to in writing, all Product shipments
under this Agreement will be in new, unused condition.
5.4.5 Title and risk of loss shall pass to Siemens upon proper tender
of delivery to the carrier.
5.4.6 Siemens shall not be charged for cartons, wrapping, boxing,
crating, drayage or other such costs, provided Siemens shall pay
for any such costs incurred in connection with Siemens' special
packaging requests.
5.4.7 Company shall ship Product from Company's nearest facility
capable of supplying Siemens' needs.
5.4.8 Product, Special Products, and Spares will be shipped with a
packing list enclosed with each shipment.
5.5 RECEIVING AND INSPECTION
5.5.1 There shall be no partial shipments unless authorized by Siemens
in writing. Company shall be responsible for Siemens' reasonable
direct out of pocket costs actually incurred as a result of any
unauthorized partial shipments. Siemens reserves the right to
make final inspection of Product, Spares, and Special Products
up to thirty (30) days after receipt by Siemens. After such
time, such Products, Spares and Special Products will be deemed
accepted by Siemens and Siemens' sole recourse shall be limited
to its warranty hereunder.
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5.5.2 Siemens may, upon inspection, notify Company of any defect,
deficiency, or default and reject such goods. Goods so rejected
may be returned to Company under warranty and unless promptly
replaced may subject the Company to cancellation of the order.
All defective Product returned under warranty will be at
Company's expense.
5.5.3 Goods shipped in advance of delivery schedule or unauthorized
partial shipments, other than as provided for herein, may be
rejected or returned to Company at Company's expense.
5.6 TITLE AND RISK OF LOSS
5.6.1 Unless otherwise specified herein, title to Products, shall vest
in Siemens when the Product has been delivered, consistent with
the shipment date designated on the order, to the Carrier
specified by Siemens. However, if Siemens expressly authorizes
Company in writing to invoice Siemens for stocks prior to
delivery, title to such stocks shall vest in Siemens upon
receipt of the invoice.
5.6.2 Company will insure, at Siemens expense, all Product orders
hereunder from the delivery of the stock to FOB carrier
designated by Siemens until delivery to Siemens of such Product
at the location designated on the Order. Company shall cooperate
with Siemens in every reasonable way to facilitate the
settlement of any such claim.
ARTICLE VI
PAYMENT
6.0 PAYMENT TERMS
6.0.1 Unless otherwise a greed to in writing by the Parties, the terms
for all orders shall be net forty-five (45) days after receipt
of invoice, provided, however, that payment shall not constitute
acceptance of the goods or impair Siemens right of inspection.
6.0.2 No C.O.D. payment terms shall be valid without Siemens prior
written consent.
6.0.3 Siemens will not accept invoices for partial shipments unless
Siemens provided prior written approval to the Company.
6.1 INVOICING
6.1.1 All applicable Federal, State, and local taxes shall be stated
separately on Company invoice and paid by Siemens.
6.1.2 Company shall render its invoice within two (2) business days of
shipment.
Page 15.
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ARTICLE VII
WARRANTY
7.0 WARRANTY
7.0.1 Company warrants to Siemens only and not to Siemens' Customers
that, for a period of fifteen (15) months for hardware and six
(6) months for Software, from date of shipment by Company, the
Product sold or licensed hereunder shall be free from respects
in material and workmanship and shall in all respects conform in
all material respects to their final published Specifications,
including any modification thereof mutually agreed upon in
writing, included in Attachment C.
7.0.2 The Parties mutually agree to negotiate the terms and conditions
of the services provided by Company for warranty and extended
warranty. The parties' agreement with respect to these matters
will be set forth in a Service Level Agreement ("SLA") to be
executed within thirty (30) days of the execution of this
Agreement. If the parties fail to execute the SLA and attach it
hereto as an Exhibit within such thirty (30) day period or any
extension thereto as mutually agreed to by the parties, either
party shall have the right to immediately terminate this
Agreement, in which event Siemens may return to the Company for
full refund the Products, if any, shipped pursuant to Section
4.4.
7.0.3 This warranty may only be utilized by Siemens and not Siemens'
Customers, however, the sale or sub-license by Siemens to its
Customers shall not terminate the warranty. Siemens shall
provide first and second level warranty support and
out-of-warranty sub-assembly replacement support directly to its
end-user Customers. To this end, Siemens will maintain an
appropriate level of spares inventory.
7.0.4 If any Product supplied by Company hereunder fails to conform to
this warranty, Company shall, at its option and sole cost and
expense, either repair or replace the same. This warranty is
made upon the express condition that:
(a) Company is given prompt written notice upon discovery of
any non-conformity, with explanation of the alleged
deficiencies;
(b) Siemens first secures a return material authorization
(RMA) and such Product is returned to Company's
manufacturing facilities, shipping prepaid, except as
otherwise agreed;
(c) The Product has not been altered, modified or changed in
any other manner than has been previously authorized in
writing by Company nor has Product been subject to
misuse or damage due to improper handling and/or
operation;
(d) Repairs to the Product have not been made by anyone
other than Company, or at Company's authorized service
facility; and
Page 16.
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(e) The Product was properly installed and maintained.
7.0.5 Company will repair or replace the hardware within a reasonable
time and will return repaired Product or will supply replacement
Products to Siemens at Company's expense. For Software, Company
will issue a patch or work around within a time frame as
specified in the Service Level Agreement to be negotiated
separately between the Parties.
7.0.6 No term, condition, understanding, or agreement purporting to
modify the terms of this warranty shall have any legal effect
unless made in writing and signed by authorized representatives
of both Parties.
7.0.7 All Products which have been repaired or replaced by Company
shall have the same warranty as above for Product originally
shipped, except the term of the warranty shall be the balance of
the period of time ascertained by deducting from the original,
warranty term the number of days from shipment of the original
unit by Company, and the time or receipt by Company of the
defective Product, or ninety (90) days for hardware, thirty (30)
days for the same defect for Software, from date of repair or
replacement, whichever is greater.
7.0.8 Company shall make available, upon request by Siemens Quality
Assurance Department, repair data on defective Product returned
by Siemens for repair. Company shall maintain this data as a
repair history for a minimum of one (1) year.
7.0.9 Company represents and warrants that it is authorized to grant
the Software Licenses granted in this Agreement.
7.1 YEAR 2000 COMPLIANCE WARRANTY
Company represents and warrants (the "Year 2000 Warranty") that (a) all
Calendar-Related processing by the Products and Special Products of Date
Data or of any System Date will not cause the Products to cease to
operate substantially in accordance with their Specifications, (b) all
data fields for the Date Data contained in the Products and Special
Products are four-digit fields capable of indicating century and
millennium, and (c) that Company has verified through its testing
procedures that no change in the System Date (including the change from
the year 1999 to the year 2000) will cause the Products or the Special
Products to cease to operate substantially in accordance with their
Specifications. Notwithstanding any provision to the contrary set forth
in this Agreement, Company makes no representation or warranty with
respect to the Products or Special Products operating in conjunction
with any computer software, computer firmware, computer hardware, or any
combination of the foregoing supplied by third parties. As used in this
Section 7.2, the following terms shall have the meanings set forth
below:
"Calendar-Related" refers to date values based on the Gregorian
calendar as defined in Encyclopedia Britannica, 15th edition,
1982, page 602, and to all uses of those date values described
in the Product Specifications.
Page 17.
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"Date Data" means any Calendar-Related data in the inclusive
range January 1, 1900 through December 31, 2050 that the
Products or Special Products use in any manner.
"System Date" means any Calendar-Related, date value in the
inclusive range from January 1, 1985 through December 31, 2035
(including the transition between such values) that the Products
or Special Products will be able to use as their current date
while operating.
In the event that a Product or Special Product fails to comply with the
warranty provided in this Section 7.2 in any material respect, Company
shall use commercially reasonable efforts to modify or replace such
Product or Special Product, or applicable component thereof, to correct
such non-compliance. If Company is unable, through the use of
commercially reasonable efforts, to modify or replace the Product or
Special Product to correct the noncompliance, Company shall refund to
Siemens the price paid by Siemens for such non-compliant Product or
Special Product and Siemens may at its option cancel any purchase orders
for such Products without incurring any liability for such cancellation.
The remedy set forth in this Section 7.2 shall be Siemens' sole remedy
for breach of the Year 2000 Warranty.
Company also warrants and represents that it has assessed or is
currently assessing Year 2000 compliance issues as it relates to its
business operations; that it is actively resolving any internal Year
2000 non-compliance relating to its operations; and that it will achieve
Year 2000 compliance prior to January 1, 2000. Such compliance includes,
but is not limited to, systems critical to the procurement of raw
materials and components and/or the manufacture and shipment of Products
to Siemens; provided, such compliance does not include any obligation to
ensure that any third party's systems are Year 2000 compliant.
7.2 WARRANTY EXCLUSIONS
THE WARRANTY PROVIDED IN ARTICLE VII EXCLUDES ALL OTHER WARRANTIES,
WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT
LIMITATION ANY WARRANTY OF MERCHANTABILITY AND/OR FITNESS FOR A
PARTICULAR PURPOSE. COMPANY WILL NOT, IN ANY EVENT BE LIABLE FOR
SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS OR
LOSS OF DATA OF ANY KIND OR TYPE OF SIEMENS ARISING FROM BREACH OF
WARRANTY.
SIEMENS' SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF THE FOREGOING
WARRANTY SHALL BE REPLACEMENT OF OR (AT COMPANY'S OPTION OR IF
REPLACEMENT IS IMPRACTICAL) REFUND OF THE DEPRECIATED PURCHASE PRICE FOR
RETURNED NON-CONFORMING UNITS OF THE PRODUCTS FOR WHICH FULL
DOCUMENTATION AND PROOF OF NON-CONFORMITY IS PROVIDED TO COMPANY;
PROVIDED, IN THE EVENT PRODUCTS COVERED BY WARRANTY (INCLUDING EXTENDED
Page 18.
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WARRANTIES PURCHASED BY SIEMENS) EXPERIENCE AN EPIDEMIC FAILURE AND
COMPANY ELECTS NOT TO REPAIR OR REPLACE SUCH PRODUCTS, COMPANY SHALL
REFUND THE UN-DEPRECIATED PURCHASE PRICE PAID BY SIEMENS FOR SUCH
PRODUCTS IF SUCH PRODUCTS WERE DELIVERED WITHIN THREE (3) YEARS OF
FAILURE AND THE DEPRECIATED PURCHASE PRICE. IF SUCH PRODUCTS WERE
PURCHASED MORE THAN THREE (3) YEARS PRIOR TO FAILURE. "EPIDEMIC FAILURE"
SHALL MEAN THE SAME MATERIAL FAILURE OR MATERIAL SPECIFICATION
NON-CONFORMITY OF THE PRODUCT OCCURRING DUE TO THE SAME SPECIFICALLY
IDENTIFIED CAUSE TO MORE THAN 5% OF INSTALLED PRODUCT WITHIN THREE (3)
MONTHS, IN WARRANTY OR EXTENDED WARRANTY.
COMPANY HAS NOT AUTHORIZED ANYONE TO MAKE ANY REPRESENTATION OR WARRANTY
OTHER THAN AS PROVIDED IN THIS ARTICLE VII.
ARTICLE VIII
REPAIR SERVICE
8.0 REPAIRS NOT COVERED UNDER WARRANTY
The parties are currently negotiating the terms and conditions of
out-of-warranty services, emergency replacement services and ongoing
support. The parties' agreement with respect to these matters will be
set forth in a Service Level Agreement ("SLA") to be executed within
thirty (30) days of the execution of this Agreement. If the parties fail
to execute the SLA and attach it hereto as an Exhibit within such thirty
(30) day period or any extension thereto as mutually agreed to by the
parties, either party shall have the right to immediately terminate this
Agreement, in which event Siemens may return to the Company for full
refund the Products, if any, shipped pursuant to Section 4.4.
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ARTICLE IX
TRAINING
9.1 TRAINING
9.1.1 Company shall offer to Siemens, at the prices listed in
Attachment E, instructors and necessary instructional materials
of Company's standard format to train Siemens personnel in the
planning, configuring, installation, operation, and maintenance
of Product. Such training shall, at Siemens' option, be held at
Company's location or at Siemens' location. When such training
is held at Siemens' location, Siemens shall provide adequate
training facilities. However, Company agrees to provide at
Company's facility at no charge to Siemens a one-time training
program for up to 6 Siemens' employees for purposes of initial
technical support readiness and train-the-trainer readiness.
9.1.2 At the option of Siemens, Company shall at prices mutually
agreed to, provide Siemens with training materials, student
manuals, instructors' manuals, and any necessary assistance,
covering those areas of interest outlined in Section 9.1.1,
sufficient in detail, format and quantity to allow Siemens to
develop and conduct a training program.
9.1.3 Siemens shall be provided, at Siemens' cost, with updated
training materials to reflect any changes, modifications, and
enhancements to the Product. Training materials, courses, or
bulletins will be provided by Company, as deemed necessary by
Siemens, anytime significant changes to Product are made.
ARTICLE X
DOCUMENTATION
10.0 SPECIFICATIONS OR DRAWINGS
Specifications shall cover the Products provided hereunder and are
attached hereto as Attachment C; provided, however, where Products are
still being developed, the Product Specifications are subject to change
from time to time until the Products have been developed.
10.1 DOCUMENTATION
10.1.1 Company agrees to furnish and convey to Siemens, in English, at
no charge, one (1) complete set of Product documentation as is
normally provided with the Product, and any succeeding changes
hereto, as described in the Section 3.4 PRODUCT CHANGES. A list
of such Product documentation is contained in Attachment B. Such
Product documentation shall include the right to reproduce such
Product documentation for use hereunder.
Page 20.
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With each shipment by Company to Siemens, Company shall include
without charge one (1) copy of documentation for each Product
shipped.
10.1.2 Company further agrees to furnish documentation in an electronic
format conforming to one of the following specifications:
a. Master Documentation Set on diskette or CD-ROM saved in
HTML (Hyper Text Markup Language) OR
b. Master Documentation Set on diskette or CD-ROM saved in
SGML (Standard Generalized Markup Language), along with
Document Type Definitions (DTDs). Company will be
charged a fee by Siemens for converting the
documentation to a format compatible with our Customers'
browsers (HTML) OR
c. Company may provide Siemens with Uniform Resource
Locator (URL) to their electronic documentation on the
World Wide Web OR
d. Master Documentation Set on diskette or CD-ROM saved in
a current version of a commonly used word processing
package or in American Standard Code for Information
Interchange (ASCII). Company will be charged a fee by
Siemens for converting the documentation to a format
compatible with our Customers' browsers (HTML).
10.1.3 Company must notify Siemens in writing of all updates to
documentation. Notification will be sent to the Director of PLM
Broadband Products in Boca Raton, Florida. This notification
will include the new issue number, date of change, and reason
for change. Siemens is responsible for notifying its end-user
Customers.
10.2 USE OF INFORMATION
All specifications, drawings, sketches, models, samples, tools, computer
programs, technical information, confidential business information or
data, written, oral or otherwise (all herein designated "Information")
obtained by either Party hereunder or in contemplation hereof shall
remain the property of the disclosing Party. Unless required to support
the existing Customer base, all copies of such Information in written,
graphic or other tangible form shall be returned to its owner upon
request. Unless such Information was previously known to be free of any
obligation to keep it confidential or has been or is subsequently made
public by its owner or a third party pursuant to Article II
CONFIDENTIALITY PROVISIONS, it shall be kept confidential, shall be used
only in the filling of orders, or in performing otherwise hereunder, and
may be used for other purposes only upon such terms as may be agreed
upon in writing by both Parties.
Page 21.
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10.3 REPRODUCTION OF DOCUMENTATION
Siemens may, in either electronic or paper media, do the following:
reproduce, prepare derivatives and distribute copies of documentation
supplied by Company under this Agreement for the purpose of allowing
Siemens and its Customer to market, use and maintain the Products
supplied by Company under this Agreement. All copies, so produced shall
contain all copyright and/or other proprietary notice contained in the
original Company supplied documentation. Siemens shall ensure that all
such derivatives and copies are accurate and shall be solely responsible
for any errors with respect thereto. Siemens shall indemnify Company for
any liability arising from such reproduction, preparation and
distribution of any such defective derivative or copied materials.
ARTICLE XI
COMPLIANCE
11.0 RADIO FREQUENCY ENERGY STANDARDS
Materials furnished hereunder shall comply, to the extent applicable,
with the requirements of Subpart J of Part 15 of the Federal
Communications Commission's Rules and Regulations, as may be amended
from time to time, including those sections concerning the labeling of
such material and the suppression of radio frequency and electromagnetic
radiation to specific levels. Should the Products generate harmful
interference to radio communications, Company shall provide to Siemens
information relating to methods of suppressing such interference. In the
event such interference cannot reasonably be suppressed, Company shall,
at the option of Siemens, accept return of the applicable Product and
refund to Siemens the price paid for such Product and Siemens may cancel
any pending orders for such Product without incurring any liability for
such cancellation. Nothing herein shall be deemed to diminish or
otherwise limit Company's obligations under Article VII WARRANTY of this
Agreement.
11.1 REGISTRATION
When Products furnished under this Agreement is subject to Part 68 of
the Federal Communications Commission's Rules and Regulations, as may be
amended from time to time, Company warrants that such Product when
delivered is registered under and complies with Part 68 of the Federal
Communications Commission's Rules and Regulations, including, but not
limited to, all labeling and Customer instruction requirements. Company
agrees to indemnify and save Siemens harmless from any liability, claims
or demands (including the costs, expenses and reasonable attorney's fees
on account thereof) that may be made because of Company's noncompliance
with Part 68 of the Federal Communication Commission's Rules and
Regulations. Company agrees to defend Siemens, at Siemens' request,
against such liability, claim or demand. In such cases, Company shall
have the right to control and direct the defense of and settlement of
each claim or demand. Siemens shall promptly notify Company of all such
claims. In
Page 22.
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the event Siemens fails to promptly notify Company of any such
liability, claim or demand and such failure prejudices Company's ability
to defend against such claim, liability or demand, Company's liability
under this Section 11.1 shall be excused to the extent of such
prejudice.
11.2 TOXIC SUBSTANCES AND HAZARDOUS MATERIAL
11.2.1 All material that is a "hazardous chemical substance or mixture"
or a "hazardous material" as these terms are defined in the
Toxic Substance Control Act and the Hazardous Material
Transportation Act are hereinafter referred to as Hazardous
Material.
11.2.2 Company agrees to ship all such Hazardous Material on an F.O.B.
Shipping Point, Freight Collect basis. Company agrees to comply
with all labeling, packaging, shipping and all requirements as
required by the afore-referenced acts, the Code of Federal
Regulation, Title 49 and all applicable state and local
regulations. The Hazardous Material itself and its packaging
shall be clearly and visibly marked so as to be readily
identified.
Company agrees to provide the assistance to Siemens of an
advisory nature in the use and disposal of all hazardous
material purchased hereunder.
11.3 COMPLIANCE WITH LAWS
11.3.1 Each party shall comply with all applicable federal, state,
county and all local laws, ordinances, regulation and codes
(including procurement of required permits or certificates) in
its performance hereunder, irrespective of whether a
specification is furnished. If material, services or containers
furnished are required to be constructed, packaged, labeled or
registered in a prescribed manner, Company shall comply with
federal law and, in addition, with applicable state or local
law. Each party agrees to defend, indemnify and hold harmless
the other party for any loss, damage, penalty, fine or liability
sustained because of its noncompliance; provided, Siemens shall
be solely responsible for, and shall indemnify Company for any
losses, fines charges or damages arising from, any claim which
results solely from Company's compliance with specific
instructions by Siemens as to construction, packaging, labeling
or registration.
11.3.2 Siemens shall not export any Products outside the United States
and Canada without Company's express written permission. In the
event Siemens receives such permission, Siemens agrees to fully
comply with all relevant export laws and regulations of the
United States to assure that no violation of such export laws or
regulations occurs and shall be fully responsible for obtaining
any required licenses or approvals; provided, Company shall, at
Siemens' expense, provide reasonable assistance to Siemens in
obtaining any such licenses and approvals.
11.3.3 Company agrees to comply with any and all laws, rules and
regulations governing design, manufacture, and testing of
Product delivered to Siemens.
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11.4 COMPLIANCE WITH CERTIFICATION TESTS REQUIRED BY NORTH AMERICAN PUBLIC
NETWORK PROVIDERS
Company agrees that it will conduct the testing necessary to assure that
the Product is compliant with requirements specified by Bellcore
M-63-CORE, Network Equipment-Building Systems (NEBS), Issue 1, October
1995. The testing required for Special Products will be mutually agreed
to by the Parties.
Company agrees to provide a copy of all test results to Siemens upon
completion of the testing.
ARTICLE XII
TERM AND TERMINATION
12.0 TERM OF AGREEMENT
Unless otherwise amended in writing by the Parties, the Term of this
Agreement shall commence on the Effective Date and continue for
thirty-six (36) months. This Agreement may be extended at the mutual
written agreement of the parties for a period of twenty-four (24) months
upon the expiration of the initial term of the Agreement.
This Agreement shall apply to the sale and or license of the Product to
Siemens for use in the United States of America and Canada. The Parties
may, upon mutual agreement, amend the Agreement to extend the terms and
conditions of the Agreement for use of the Product by Siemens in other
countries if Siemens so requests.
12.1 TERMINATION OF AGREEMENT
12.1.1 Notwithstanding the provisions of Section 12.0 or any provision
limiting the remedy of a Party, if either Party hereto shall
fail to adequately perform or observe any of the terms and
conditions to be performed or observed by it under this
Agreement, the other Party shall give written notice to the
defaulting Party specifying the respects in which the defaulting
Party has so failed to perform or observe the terms and
conditions of this Agreement, and in the event that any defaults
so indicated shall not be remedied by the defaulting Party
within thirty (30) days after such notice, the Party not in
default may, by written notice to the defaulting Party terminate
this Agreement or any outstanding order hereunder effective upon
the defaulting Party's receipt of such notice of termination.
Failure of either Party to so terminate this Agreement due to a
breach on the part, of the other Party shall not prejudice its
rights to terminate for a subsequent breach on the part of the
defaulting Party. In addition the Company shall be entitled to
terminate this Agreement pursuant to Section 4.3 and 14.13.
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12.1.2 In the event that Company shall (i) cease conducting business in
the normal course, (ii) become insolvent, (iii) make a general
assignment for the benefit of creditors, (iv) suffer or permit
the appointment of a receiver for its business or substantially
all of its assets, or (v) avail itself or becomes subject to any
proceeding under the Federal Bankruptcy Act or any other statute
of any state relating to insolvency or the protection of rights
of creditors, and such event materially and substantially
prevents Company from carrying out its obligations hereunder,
then Siemens may, at its sole option and subject to the
provisions of this Agreement, terminate this Agreement for
cause.
12.1.3 Upon termination of this Agreement for any reason, each party
shall promptly return any and all materials supplied by the
other party.
12.1.4 The provisions of sections 2.1, 2.3, 3.1, 6.0, Article VII,
9.1.2, 10.2, 11.0, 11.1, 11.3.1, 11.3.2, 11.3.3, 12.0, 13.0,
13.1, 14.1, 14.2, 14.3, 14.4, 14.5, 14.6, 14.8, 14.9, 14.10,
14.14, 14.15 which by their nature are intended to survive
expiration or termination of this Agreement, shall survive
expiration or termination of this Agreement for any reason. All
other rights and obligations shall cease upon termination of
this Agreement. The provisions of the SLA shall survive based on
the specific terms set forth in such Agreement.
ARTICLE XIII
SOFTWARE
13.0 RIGHTS TO SOFTWARE
13.0.1 Title to Software furnished to Siemens shall remain in Company.
For such term as Siemens or its Customers shall continue to use
and operate Product, Company grants Siemens a non-exclusive
license to use the binary version of the Software on the
hardware with which the Software was first supplied and the
right to sub-license such limited use to Siemens' end-user
Customers under the end-user license terms as set forth in
13.0.3, below.
13.0.2 Siemens or Customer may reproduce the Software for archive or
maintenance purposes for use with the hardware with which it was
originally delivered. Any such reproduction or copies shall
include any copyright, similar proprietary notice or other
notices contained in the items being reproduced.
13.0.3 Siemens' or its Customers' rights to use the Software are
limited as follows:
(a) The Software may only be used on the hardware on which
it is first supplied or on supplied replacement
hardware.
(b) Copies may be made for archive or maintenance purposes
only. Software may not be modified, de-compiled,
disassembled or reverse engineered.
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13.0.4 Siemens may, at no additional charge, sublicense Software as a
part of the sale, rental, lease, transfer, or assignment of
Product. Such sub-licensee shall succeed to all of Siemens' or
Customer's rights and obligations under this license with
respect to such Software.
13.0.5 Siemens or Customer may, at no charge, relocate Software to
another location within the United States for reuse with the
Product with which it was originally delivered when such Product
has been relocated. Such relocation or reuse shall not alter
Siemens' or Customer's license to use the Software.
13.0.6 The right-to-use fees for Software are as set forth in
Attachment E, Price Lists.
13.1 SOFTWARE ESCROW
Siemens has, pursuant to this Agreement, licensed Software from Company
and Siemens desires to have the Source Code for such Software placed in
an escrow account substantially in accordance with the terms and
conditions of an Escrow Agreement, attached hereto as Attachment E.
Company agrees to place a copy of the Source Code into escrow with a
mutually agreed Escrow Holder. If there is more than one Software
program, Company may, at its option, establish separate escrow accounts
for each Software's Source Code. Company shall ensure that the copy of
the Source Code that is deposited in Escrow at any given time is the
latest generally released version.
The Escrow Agreement shall be fully executed within 90 days of the
Effective Date of this Agreement.
ARTICLE XIV
GENERAL PROVISIONS
14.0 TRANSFERABILITY
This Agreement shall be binding upon and shall inure to the benefit of
any corporation, or other legal entity with which Company or Siemens may
be merged or consolidated, or the successors to or assignee of the total
assets of either of them which relate to this Agreement.
Except as provided in the preceding paragraph, neither party may sell,
assign, transfer, delegate, or subcontract this contract or any rights
or obligations hereunder, in whole or in part, without the prior written
consent of the other party, which consent shall not be unreasonably
withheld.
14.1 DISCLAIMER OF AGENCY
This Agreement shall not constitute either Party the employee, legal
representation or agent of the other Party, nor shall either Party have
the right or authority to assume,
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create, or incur any liability or any obligation of any kind, expressed
or implied against, or in the name of or on behalf of the other Party.
If Siemens is approached by any third party, not a Customer of Siemens,
with respect to any and all matters regarding Company's Products,
warranties, or terms and conditions of sale, Siemens will refer the
third party to the Company.
14.2 PUBLICITY
The parties will, upon completion of the Agreement and at appropriate
stages during its term agree upon joint press releases to be made to the
industry and general press.
Each Party shall use its commercially reasonable best efforts not to
disclose to any third party during the Term of this Agreement, the terms
and conditions of this Agreement, except as may be required by law, or
by governmental regulation, requirements or orders or as may be
necessary to establish or assert its right hereunder.
14.3 NOTICES
Any and all written notices, communications and deliveries between
Company and Siemens with respect to this Agreement shall be effective on
the date of mailing if (i) sent registered or certified mail; (ii) if
sent by mutually recognized overnight courier to the respective address,
subject to change upon written notice, of the other Party as follows:
In the case of Siemens:
Siemens ICN
000 XXXXXXXX XXXX
Xxxx Xxxx, Xxxxxxx 00000
Attention: Director of Purchasing
with a copy to:
Siemens ICN
000 Xxxxxx Xxxxx Xxxxxxx
Xxxx Xxxxx, XX 00000
Attention: General Counsel
In the case of Company:
Accelerated Networks, Inc.
000 Xxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: CFO
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with a copy to:
Xxxxxxx, Phleger & Xxxxxxxx LLP
00 Xxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxxx, Xx.
14.4 GOVERNING LAW
This Agreement shall be governed by the laws of the State of California.
14.5 ARBITRATION
Any dispute hereunder shall be settled by binding arbitration in
California under the rules of the American Arbitration Association for
commercial disputes. The arbitrator's ruling may be enforced by any
court having jurisdiction. Notwithstanding the foregoing, in the event
of a threat of immediate, irreparable harm, either party may seek
equitable relief in any court having jurisdiction.
14.6 NON-WAIVER
No delay or failure to exercise any right or remedy or enforce any
provision of this Agreement shall operate as a waiver thereof. The
waiver of one breach or default hereunder shall not constitute the
waiver of any other or subsequent breach or default.
14.7 EXECUTION OF FURTHER DOCUMENTS
The Parties agree to execute, acknowledge, and deliver all such further
instruments, and do all such other acts, as may be necessary or
appropriate in order to carry out the intents and purposes of this
Agreement or perfect or protect any right or license granted under this
Agreement.
14.8 OTHER REMEDIES
Any and all provisions for remedies agreed to in any specific provisions
or instances in this Agreement are not intended as exclusive remedies,
and each Party may pursue, in addition thereto, any remedies it may have
at law, or otherwise, or take such other action as it may determine.
14.9 EFFECT OF HEADINGS
The Article, Section, Paragraph, and Attachment headings appearing in
this Agreement are inserted only as a matter of convenience and in no
way define, limit, construe or describe the scope or intent of such
Article, Section, Paragraph, or Attachment nor in any way affect this
Agreement.
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14.10 PATENT AND OTHER PROPRIETARY RIGHTS INFRINGEMENT INDEMNIFICATION
Company shall defend, indemnify and hold harmless Siemens, at Company's
cost and expense, against any claim or suit alleging infringement of a
duly issued United States or Canadian patent, copyright or other
proprietary right brought against Siemens or its Customers, to the
extent that such claim pertains to Products or Related Materials and
Company shall pay all costs incurred in such claim or suit and all
settlement payments and damages awarded, directly or indirectly,
incurred in such claim or suit, provided that Siemens gives Company
prompt written notice of such claim, sole control over its defense and
settlement and reasonably cooperates with Company in the defense or
settlement of such claim or suit. Notwithstanding anything herein to the
contrary, in no event shall Company be responsible, directly or
indirectly, for lost profits, consequential damages, indirect damages,
or special damages of Siemens or any Customer of Siemens. If an
injunction is obtained against use of the Products or Related Materials
as a result of infringement of a patent, copyright or other proprietary
right, Company shall, at its option, and at Company's expense, either
procure the right to continue using the Product or Related Materials,
replace or modify the same so they become non-infringing, but remain
functionally equivalent, or accept return of the Product and pay to
Siemens the actual costs incurred by Siemens in correcting problems
caused by Company's Product infringement in Siemens' Customers' networks
up to the purchase/license price paid by Siemens for such Products.
Furthermore, Company's indemnification obligation hereunder shall not
cover (a) any claim that any of the Products infringes any third party's
rights as used in combination with Products not supplied by Company; (b)
any claim that arises out of Company's compliance with technical
specifications provide by Siemens; (c) any claim relating to Products
which have been modified by any person other than Company; or (d) any
claim relating to Siemens' continued use of an infringing Product after
notification by Company thereof.
14.11 MARKINGS
Company shall xxxx all Products furnished hereunder for identification
purposes as follows:
(a) Model/part number and serial number, if applicable
(b) Month and year of manufacture
(c) Other identification which may be mutually agreed to by Parties
In addition, in the event the Company implements, Common Language
Equipment Identification (CLEI) Codes consistent with GR-485-CORE,
Company shall also xxxx such Products with such codes. If Company does
not implement such codes, Siemens may provide Company with its own codes
which Company shall attach to the Products pursuant to Siemens'
instructions. Upon Siemens' written request, certain of Siemens
trademarks, names, symbols, decorative designs or evidence of Siemens
inspection (herein "Insignia") may be properly affixed by Company to the
Product. The design, location and manner in which such Insignia will be
affixed must be approved in writing by Siemens. Charges, if any, for
such Insignia shall be billed and payable by Siemens.
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Siemens hereby grants Company a non-exclusive, non-transferable,
sublicensable, license to affix Insignia to Products solely in
accordance with Siemens' directions.
14.12 CONTINGENCY
Neither of the Parties shall be held responsible for any delay or
failure in performance hereunder caused by fires, strikes, embargoes,
requirements imposed, by Government regulations, civil or military
authorities, act of God or by the public enemy or other similar causes
beyond such Party's control. However, Company's delay or failure to
perform shall not be excused by a default of any of its subcontractors
or suppliers unless such default arises out of causes reasonably beyond
the control of the Company. If such contingency occurs, the party
injured by the other's inability to perform may by giving written notice
elect to: (a) terminate a particular order or part thereof if the
contingency continues for a period of more than thirty (30) days as to
Product not already received; (b) suspend a particular order for the
duration of the delaying cause, buy or sell elsewhere Product to be
bought or sold hereunder, and deduct from any commitments the quantity
bought or sold or for which commitments have been made elsewhere; or (c)
resume performance under a particular order once the delaying cause
ceases with an option in the injured party to extend the period
hereunder up to the length of time the contingency endured. Unless
written notice is given within thirty (30) days after such injured party
is apprised of the contingency, (b) shall be deemed selected.
14.13 DEVELOPMENTS BY SIEMENS
Nothing contained in this Agreement shall prevent Siemens from
independently developing, either through the use of its own personnel or
through third parties, or acquiring from third parties, product similar
to Product or other types of product. No such product shall be developed
by Siemens using Company's Proprietary Information. Nothing herein shall
be construed to grant Company any rights in any such similar product so
developed or acquired or to the revenues or any portion thereof derived
by Siemens from the use, sale, lease, license or other disposal of any
such product.
Given non-disclosure agreements that may be in place and business
considerations private to Siemens, Siemens does agree to notify Company
of such developments as soon as is practicable. Siemens will, however,
use its best efforts to provide six (6) month notification to Company of
any such developments that will decrease any of the current forecasts
for the Annual Delivery Period by more than twenty-five percent (25%).
In the event of any such development, Company shall be entitled to
terminate this Agreement pursuant to Section 12.1.1 upon ninety (90)
days notice to Siemens.
14.14 VALIDITY
In the event any provisions of this Agreement shall be deemed invalid by
any court of law, the invalidity of that provision shall not affect the
remaining portions of this Agreement and any ambiguity which arises by
reason of such invalidity shall be construed in accordance with the
overall intent of the Parties as exhibited by the remaining provisions
of this Agreement.
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14.15 LIMITATION OF LIABILITY
Except for Company's obligation under Paragraph 14.10, in no event shall
either Party be liable to the other for any lost revenue, profits or
data or any special incidental, consequential or other such indirect
damages, whether arising out of or as a result of breach of contract,
warranty, tort (including negligence), strict liability or otherwise.
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ATTACHMENT A
PRODUCT STRUCTURE
Brief description in marketing terms or Product brochures of:
(a) Product Configuration
(b) Spare Parts for Product
(c) Special Products
(d) Reserved
(e) Software
Should include specific items such as:
(a) Specific Product Numbers and Descriptions
(b) Spare Parts List and Descriptions
(c) Special Product Components .
(d) Software Description and Function
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ATTACHMENT B
Describe and list all materials that are furnished by Company at no charge or
are available for purchase by Siemens.
Included in this list are such items as:
Sales Brochures
System Manual
Operations Manual or Procedures
Installation Manual
Program Manual
Maintenance Manual
Test and Diagnostic Information
User Manuals
Training Manual and Training Aids
Special Product Information
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