Exhibit 10.37
Network Products Purchase Agreement Number DM-11/95-DC
Page 1
(5/25/95) st7226h
NETWORK PRODUCTS PURCHASE AGREEMENT
This Agreement Number DM-11/95-DC ("Agreement") is made by and between Northern
Telecom Inc., a Delaware corporation having offices at 4001 East Chapel Xxxx-
Xxxxxx Xxxxxxx, Xxxxxxxx Xxxxxxxx Xxxx, Xxxxx Xxxxxxxx 00000 ("Nortel"), and
DeltaCom, Inc., a Alabama corporation, having its principal offices and place of
business at 000 Xxxxx Xxxx Xxxxxx, Xxxx Xxxxxx Xxx 0000, Xxxx, Xxxxxxx 00000
("Buyer").
WITNESSETH:
WHEREAS, Buyer desires to obtain and Nortel desires to provide certain
telecommunications equipment and software for Buyer's internal use in its
network and certain related services to provide telecommunications service;
NOW THEREFORE, Nortel and Buyer agree as follows:
1. SCOPE
1.1 Exhibit A sets forth certain defined terms which shall have the
meanings set forth in Exhibit A.
1.2 The terms and conditions of this Agreement shall apply to the purchase
by Buyer and the sale by Nortel of Equipment and Services and the
licensing of Software furnished in connection with such Equipment. The
terms and conditions contained in a Product Attachment shall modify
and/or supplement the other terms and conditions of this Agreement,
only with respect to the Product Line and Services described in the
Product Attachment.
1.3 All Products and Services obtained by Buyer pursuant to this Agreement
shall be obtained by Buyer solely for initial use by Buyer in its
internal business to provide services available through its networks,
and not as stock in trade or inventory which is intended for resale by
Buyer to any third party as new and unused material. All such Products
shall be installed in the United States.
2. TERM
2.1 This Agreement shall be in effect during the period that any Product
Attachment is in effect. Each Product Attachment shall be in effect
during the Product Attachment Term with respect thereto. This
Agreement or any part thereof may be terminated in accordance with the
express provisions of this Agreement concerning termination or by
written
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agreement of the parties.
2.2 The termination of this Agreement or any part thereof shall not affect
the obligations of either party thereunder with respect to any
accepted Order which have not been fully performed, unless such Order
is expressly terminated in accordance with this Agreement or by
written agreement of the parties.
3. ORDERING
All purchases pursuant to this Agreement shall be made by means of Orders
issued from time to time by Buyer and accepted by Nortel in writing within
fifteen (15) days. If an Order is not accepted by Nortel within such
fifteen (15) day period, such Order shall be deemed to be void. All Orders
shall reference this Agreement and shall be governed solely by the terms
and conditions set forth herein as modified and/or supplemented pursuant to
Section 1.2 by the terms and conditions of any applicable Product
Attachments.
4. PRICES
4.1 The prices, charges, and fees applicable to Orders for Products and/or
Services shall be set forth in the appropriate Product Attachments and
may be revised in accordance with the provisions stated therein.
Transportation charges, including insurance, shall be payable by Buyer
in accordance with the applicable Product Attachment.
4.2 Until the total of all prices, charges and fees for Products and
related Services furnished hereunder shall have been paid to Nortel,
Buyer shall cooperate with Nortel in perfecting Nortel's purchase
money security interest in such Products and Buyer shall promptly
execute all documents and take all actions required by Nortel in
connection therewith. Buyer shall not sell, lease or otherwise
transfer such Products or any portion thereof or allow any liens or
encumbrances to attach to such Products or any portion thereof prior
to payment in full to Nortel of the total of all such prices, charges,
and fees.
5. TERMS OF PAYMENT
5.1 The amounts payable for Products and/or Services may be invoiced by
Nortel to Buyer in accordance with the applicable Product Attachments.
All amounts payable and properly invoiced pursuant to this Agreement
shall be paid by Buyer to Nortel within thirty (30) days from the date
of Nortel's invoice in accordance with the payment instructions
contained in such invoice.
5.2 Overdue payments, excluding those which are the subject of a good
faith
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dispute, shall be subject to interest charges, calculated daily
commencing on the 31st day after the date of the invoice, at one and
one half percent (1-1/2%) per month or such lesser rate as may be the
maximum permissible rate under applicable law.
6. TAXES
Buyer shall at Nortel's direction promptly reimburse Nortel or pay directly
to the applicable government or taxing authority all taxes and charges
arising hereunder, including, without limitation, penalties and interest,
except for taxes computed upon the net income of Nortel. Buyer's
obligations pursuant to this Section 6 shall survive any termination of
this Agreement.
7. RISK OF LOSS, TITLE
7.1 Risk of loss or damage to Products shall pass to Buyer upon delivery
to the loading dock at the installation site or other delivery
location specified by Buyer in its Order, and Buyer shall keep such
Products fully insured for the total amount then due Nortel for such
Products.
7.2 Good title to Equipment furnished hereunder which shall be free and
clear of all liens and encumbrances shall vest in Buyer upon full
payment by Buyer of the total prices, charges and fees payable by
Buyer for such Equipment and any related Software or Services
furnished by Nortel in connection with such Equipment.
7.3 Buyer shall receive a license to use Software subject to the terms set
forth in Exhibit B.
8. TESTING, TURNOVER AND ACCEPTANCE
8.1 If Nortel installs any Products furnished hereunder, the rights and
obligations of the parties with respect to testing, turnover and
acceptance of such Products shall be as set forth in the applicable
Product Attachment.
8.2 If Nortel does not install Products furnished hereunder, Nortel shall
prior to delivery of the Products perform such factory tests as Nortel
determines to be appropriate in order to confirm that such Products
shall be in accordance with the applicable Specifications. Buyer shall
be deemed to have accepted the Products upon completion of such tests.
8.3 In the event that Buyer places Products into revenue-generating
service, such Products shall be deemed to have been accepted by Buyer
without limitation or restriction.
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9. DISCLAIMERS OF WARRANTIES AND REMEDIES
THE WARRANTIES AND REMEDIES SET FORTH IN EXHIBIT D AND IN ANY PRODUCT
ATTACHMENT CONSTITUTE THE ONLY WARRANTIES OF NORTEL WITH RESPECT TO THE
PRODUCTS AND SERVICES AND BUYER'S EXCLUSIVE REMEDIES IN THE EVENT SUCH
WARRANTIES ARE BREACHED. THEY ARE IN LIEU OF ALL OTHER WARRANTIES, WRITTEN
OR ORAL, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION ANY
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NORTEL
SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY
NATURE WHATSOEVER, BEFORE OR AFTER THE PLACING OF ANY PRODUCT INTO SERVICE.
10. LIABILITY FOR PERSONAL INJURY, PROPERTY DAMAGE AND PATENT INFRINGEMENT
10.1 A party hereto shall defend the other party against any suit, claim,
or proceeding brought against the other party for direct damages due
to personal injuries (including death) or damage to tangible property
which allegedly result from the negligence or willful misconduct of
the defending party in the performance of this Agreement. The
defending party shall pay all litigation costs, reasonable attorney's
fees, settlement payments and such direct damages awarded or
resulting from any such suit, claim or proceeding.
10.2 Nortel shall defend Buyer against any suit, claim or proceeding
brought against Buyer alleging that any Products, excluding Vendor
Items, furnished hereunder infringe any United States patent. Nortel
shall pay all litigation costs, reasonable attorney's fees,
settlement payments and any damages awarded or resulting from any
such suit, claim or proceeding. With respect to Vendor Items, Nortel
shall assign any rights with respect to infringement of U.S. patents
granted to Nortel by the supplier of such Vendor Items to the extent
of Nortel's right to do so.
10.3 The party entitled to defense pursuant to Section 10.1 or 10.2 shall
promptly advise the party required to provide such defense of the
applicable suit, claim, or proceeding and shall cooperate with such
party in the defense or settlement thereof. The party required to
provide such defense shall have sole control of the defense of the
applicable suit, claim, or proceeding and of all negotiations for its
settlement or compromise.
10.4 If an injunction is obtained against Buyer's use of any Products as
a result of any suit, claim, or proceeding described in Section 10.2,
Nortel shall at Nortel's option use its reasonable efforts to either:
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10.4.1 procure for Buyer the right to continue using the portions of the
Products enjoined from use; or
10.4.2 replace or modify the same with equivalent or better Products so
that Buyer's use is not subject to any such injunction.
10.5 If Nortel cannot perform under Section 10.4.1 or 10.4.2, Buyer shall have
the right to return the infringing Products to Nortel upon written notice
to Nortel, and in the event of such return, neither party shall have any
further liabilities or obligations under this Agreement on account of such
infringement or return, except Nortel shall refund the depreciated value of
such Products carried on Buyer's books at the time of such return, less any
outstanding monies due Nortel hereunder.
10.6 The obligations of Nortel hereunder with respect to any suit, claim, or
proceeding described in Section 10.2 shall not apply with respect to
Products which are (a) manufactured or supplied by Nortel in accordance
with any design or any special instruction furnished by Buyer, (b) used by
Buyer in a manner or for a purpose not contemplated by this Agreement, (c)
located by Buyer outside the United States, or (d) used by Buyer in
combination with other products not provided by Nortel, including, without
limitation, any software developed solely by Buyer through the permitted
use of Products furnished hereunder, provided the infringement arises from
such combination or the use thereof. Buyer shall indemnify and hold Nortel
harmless against any loss, cost, expense, damage, settlement or other
liability, including, but not limited to, attorneys' fees, which may be
incurred by Nortel with respect to any suit, claim, or proceeding described
in this Section 10.6.
10.7 Notwithstanding the above, Nortel's total liability to Buyer with regard
to suits, claims, or proceedings described in Section 10.2 which involve
Service Use shall not exceed the applicable Service Use Limit. Buyer shall
reimburse Nortel all amounts paid or incurred by Nortel with respect to any
such suits, claims, or proceedings in excess of the applicable Service Use
Limit.
10.8 If Nortel determines that any Products are or may become the subject of
any suit, claim, or proceeding involving Service Use, Nortel may provide
Buyer with notice to that effect. Nortel shall have no liability to Buyer
pursuant to Section 10.2, 10.4, or 10.5 with respect to Buyer's use of such
Products which occurs subsequent to such notice. In addition to its
obligations pursuant to Section 10.3, if Buyer becomes aware that any
Products may become the subject of any such suit, claim, or proceeding
before receiving any such notice from Nortel, Buyer shall provide Nortel
with notice to that effect.
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10.9 After receipt of notice from Nortel pursuant to Section 10.8, Buyer
shall have the option to return to Nortel the applicable Products
identified in such notice and Nortel shall refund the depreciated
value (as carried on the books of Buyer) of the returned Products to
Buyer as more fully set forth in Section 10.5.
10.10 The provisions of Sections 10.2 through 10.9 state the entire
liability of Nortel and its suppliers and the exclusive remedy of
Buyer with respect to any suits, claims, or proceedings of the nature
described in Section 10.2.
10.11 Each party's respective obligations pursuant to this Section shall
survive any termination of this Agreement.
11. REMEDIES AND LIMITATION OF LIABILITY
11.1 Nortel shall have the right to suspend its performance by written
notice to Buyer and forthwith remove and take possession of all
Products that shall have been delivered to Buyer, if, prior to
payment to Nortel of any amounts due pursuant to this Agreement with
respect to such Products, Buyer shall (a) become insolvent or
bankrupt or cease, be unable, or admit in writing its inability, to
pay all debts as they mature, or make a general assignment for the
benefit of, or enter into any arrangement with, creditors, (b)
authorize, apply for, or consent to the appointment of, a receiver,
trustee, or liquidator of all or a substantial part of its assets or
have proceedings seeking such appointment commenced against it which
are not terminated within thirty (30) days of such commencement, or
(c) file a voluntary petition under any bankruptcy or insolvency law
or under the reorganization or arrangement provisions of the United
States Bankruptcy Code or any similar law of any jurisdiction or have
proceedings under any such law instituted against it which are not
terminated within thirty (30) days of such commencement.
11.2 In the event of any material breach of this Agreement which shall
continue for thirty (30) or more days after written notice of such
breach (including a reasonably detailed statement of the nature of
such breach) shall have been given to the breaching party by the
aggrieved party, the aggrieved party shall be entitled at its option
to avail itself of any and all remedies available at law or equity,
except as otherwise provided in this Agreement.
11.3 Nothing contained in Section 11.2 or elsewhere in this Agreement
shall make Nortel liable for any incidental, indirect, consequential
or special damages of any nature whatsoever for any breach of this
Agreement whether the claims for such damages arise in tort,
contract, or otherwise, or shall increase the liability of Nortel
under Section 9 or 10 or Exhibit D beyond that prescribed therein.
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11.4 Nortel shall not be liable for any additional costs, expenses, losses
or damages resulting from errors, acts or omissions of Buyer,
including, but not limited to, inaccuracy, incompleteness or
untimeliness in the provision of information by Buyer to Nortel or
fulfillment by Buyer of any of its obligations under this Agreement.
Buyer shall pay Nortel the amount of any such costs, expenses, losses
or damage incurred by Nortel.
11.5 Any action for breach of this Agreement or to enforce any right
hereunder shall be commenced within two (2) years after the cause of
action accrues or it shall be deemed waived and barred, except any
action for nonpayment by Buyer of any prices, charges, or fees
payable hereunder may be brought by Nortel at any time permitted by
applicable law.
11.6 The limitations on Nortel's liability and other obligations set forth
in Sections 9,10, and 11 shall survive any termination of this
Agreement.
12. FORCE MAJEURE
If the performance by a party of any of its obligations under this
Agreement shall be interfered with by reason of any circumstances beyond
the reasonable control of that party, including without limitation,
unavailability of supplies or sources of energy, power failure, breakdown
of machinery, or labor difficulties, including without limitation, strikes,
slowdowns, picketing or boycotts, then that party shall be excused from
such performance for a period equal to the delay resulting from the
applicable circumstances and such additional period as may be reasonably
necessary to allow that party to resume its performance. With respect to
labor difficulties as described above, a party shall not be obligated to
accede to any demands being made by employees or other personnel.
13. CONFIDENTIAL INFORMATION
13.1 Each party which receives the other party's Confidential Information
shall use reasonable care to hold such Confidential Information in
confidence and not disclose such Confidential Information to anyone
other than to its employees and employees of its affiliates with a
need to know. A party that receives the other party's Confidential
Information shall not reproduce such Confidential Information, except
to the extent reasonably required for the performance of its
obligations pursuant to this Agreement and in connection with any
permitted use of such Confidential Information.
13.2 Buyer shall take reasonable care to use Nortel's Confidential
Information only for study, operating, or maintenance purposes in
connection with Buyer's use of Products furnished by Nortel pursuant
to this Agreement.
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13.3 Nortel shall take reasonable care to use Buyer's Confidential
Information only to perform Nortel's obligations to provide Products
and/or Services to Buyer, provided Nortel may use any of Buyer's
Confidential Information for the development, manufacture, marketing
and maintenance of new products and/or services and/or changes or
modifications to the existing Products and/or Services, which Nortel
may, in either case, provide to third parties without restriction.
13.4 The obligations of either party pursuant to this Section 13 shall not
extend to any Confidential Information which was already known to the
recipient prior to its disclosure to the recipient, was known or
generally available to the public at the time of disclosure to the
recipient, becomes known or generally available to the public (other
than by act of the recipient) subsequent to its disclosure to the
recipient, is disclosed or made available in writing to the recipient
by a third party having a bona fide right to do so, or is required to
be disclosed by process of law, provided that the recipient shall
notify the disclosing party promptly upon any request or demand for
such disclosure.
13.5 The parties' obligations pursuant to this Section 13 shall survive
any termination of this Agreement.
14. BUYER'S RESPONSIBILITIES
14.1 All sites at which the Products shall be delivered or installed shall
be prepared by Buyer in accordance with Nortel's standards,
including, without limitation, environmental requirements.
14.2 Buyer shall provide Nortel-designated personnel access to the
Products during the times deemed necessary by Nortel to install,
maintain and service the Products in accordance with Nortel's
obligations. Nortel personnel shall comply with Buyer's reasonable
site and security regulations, provided Nortel receives written
notice of any such regulations reasonably in advance of the arrival
of Nortel's personnel at the site.
14.3 Buyer shall provide reasonable working space and facilities,
including heat, light, ventilation, telephones, electrical current,
trash removal and other necessary utilities for use by Nortel-
designated maintenance personnel, and adequate secure storage space,
if required by Nortel, for Products and materials. Buyer shall also
provide adequate security for the Products while on Buyer's site.
14.4 Buyer shall obtain all necessary governmental permits applicable to
Buyer in connection with the installation, operation, and maintenance
of Products furnished hereunder, excluding any applicable permits
required
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in the normal course of Nortel's doing business.
14.5 Any information which Nortel reasonably requests from Buyer and which
is necessary for Nortel to properly install or maintain the Products
shall be provided by Buyer to Nortel in a timely fashion and in a
form reasonably specified by Nortel.
15. HAZARDOUS MATERIALS
15.1 Prior to issuing any Order for Services to be performed at Buyer's
facilities, Buyer shall identify and notify Nortel in writing of the
existence of all Hazardous Materials which Nortel may encounter
during the performance of such Services, including, without
limitation, any Hazardous Materials contained within any equipment to
be removed by Nortel.
15.2 If Buyer breaches its obligations pursuant to Section 15.1, (a)
Nortel may discontinue the performance of the appropriate Services
until all the applicable Hazardous Materials have been removed or
abated to Nortel's satisfaction by Buyer at Buyer's sole expense, and
(b)Buyer shall defend, indemnify and hold Nortel harmless from any
and all damages, claims, losses, liabilities and expenses, including,
without limitation, attorneys' fees, which arise out of Buyer's
breach, of such obligations. Buyer's obligations pursuant to this
Section 15.2 shall survive any termination of this Agreement.
16. SUBCONTRACTING
Nortel may subcontract any of its obligations under this Agreement, but no
such subcontract shall relieve Nortel of primary responsibility for
performance of its obligations.
17. REGULATORY COMPLIANCE
In the event of any change in the Specifications or Nortel's manufacturing
or delivery processes for any Products as a result of the imposition of
requirements by any government, Nortel may upon notice to Buyer, increase
its prices, charges and fees to cover the added costs and expenses directly
and indirectly incurred by Nortel as a result of such change.
18. GENERAL
18.1 If any of the provisions of this Agreement shall be invalid or
unenforceable under applicable law and a party deems such provisions
to be material, that party may terminate this Agreement upon notice
to the
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other party. Otherwise, such invalidity or unenforceability shall not
invalidate or render this Agreement unenforceable, but this Agreement shall
be construed as if not containing the particular invalid or unenforceable
provision and the rights and obligations of the parties shall be construed
and enforced accordingly.
18.2 A party shall not release without the prior written approval of the other
party any advertising or other publicity relating to this Agreement wherein
such other party may reasonably be identified. In addition each party shall
take reasonable precautions to keep the existence and the contents of this
Agreement confidential so long as this Agreement remains in effect and for
a period of three (3) years thereafter, except as may be reasonably
required to enforce this Agreement or by law.
18.3 The construction, interpretation and performance of this Agreement shall
be governed by the laws of the State of North Carolina, except for its
rules with respect to the conflict of laws.
18.4 Neither party may assign or transfer this Agreement or any of its rights
hereunder without the prior written consent of the other party, such
consent not to be unreasonably withheld, except Nortel may assign or
transfer all or any part of this Agreement or of its rights hereunder to
any Affiliate without Buyer's consent.
18.5 Notices and other communications shall be transmitted in writing by
certified United States Mail, postage prepaid, return receipt requested, by
guaranteed overnight delivery, or by facsimile addressed to the parties as
follows:
To Buyer: DeltaCom, Inc.
000 Xxxxx Xxxx Xxxxxx
Post Office Box 1233
Arab, Alabama 35016
Attention: Mr. Xxxxx Xxxx
Facsimile: (000) 000-0000
To Nortel: Northern Telecom Inc.
0000 Xxxxxxxx Xxxx.
Xxxxxxxxxx, Xxxxx 00000-0000
Attention: Vice President, Carrier Networks
Facsimile: (000) 000-0000
In addition, notices submitted by Buyer to Nortel specific to any Product
Attachment shall be delivered to the address stated in the applicable
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Product Attachment along with a copy submitted to Nortel at the address
stated above.
Any notice or communication sent under this Agreement shall be deemed
given upon receipt, as evidenced by the United States Postal Service
return receipt Mail if given by certified United States Mail, on the
following business day if sent by guaranteed overnight delivery, or on the
transmission date if given by facsimile during the receiving party's
normal business hours.
The address information listed for a party in this Section or any Product
Attachment may be changed from time to time by that party by giving notice
to the other as provided above.
18.6 In the event of a conflict between the provisions of this Agreement which
are not contained in a Product Attachment and the provisions of a Product
Attachment, the provisions of the Product Attachment shall prevail with
respect to the Product Line and Services described in that Product
Attachment.
18.7 All headings used herein are for index and reference purposes only, and
shall not be given any substantive effect. This Agreement has been created
jointly by the parties, and no rule of construction requiring
interpretation against the drafter of this Agreement shall apply in its
interpretation.
18.8 Buyer shall not export any technical data received from Nortel pursuant to
this Agreement, or release any such technical data with the knowledge or
intent that such technical data will be exported or transmitted to any
country or to foreign nationals of any country, except in accordance with
applicable U.S. law concerning the exporting of such technical data. Buyer
shall obtain all authorizations from the U.S. government in accordance
with applicable law prior to exporting or transmitting any such technical
data as described above.
18.9 Any changes to this Agreement may only be effected if agreed upon in
writing by duly authorized representatives of the parties hereto. No
agency, partnership, joint venture, or other similar business relationship
shall be or is created by this Agreement.
18.10 This Agreement, including all Product Attachments and Exhibits
constitutes the entire agreement of the parties with respect to the
subject matter hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day
last written below.
NORTHERN TELECOM INC. DELTACOM, INC.
By: /s/ Xxxxxx Xxxx By: /s/ Xxx Xxxxxx
------------------------------- --------------------------------
(Signature) (Signature)
Name: Xxxxxx Xxxx Name: Xxx Xxxxxx
----------------------------- ------------------------------
(Print) (Print)
Vice President & General
Title: Manager, Carrier Networks Title: COO
---------------------------- -----------------------------
Date: 24 January 1996 Date: 1/11/96
----------------------------- ------------------------------
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EXHIBIT A
---------
DEFINITIONS
-----------
As used in the Agreement (as defined below), the following initially capitalized
terms shall have the following meanings:
"Affiliate" shall mean Nortel's parent company, Northern Telecom Limited and any
corporation or company effectively controlled directly or indirectly by Northern
Telecom Limited through the ownership or control of shares or other securities
in such corporation or company.
"Agreement" shall mean the Agreement to which this Exhibit is attached, and all
Exhibits and Product Attachments.
"Confidential Information" shall mean all technical or business information,
including, without limitation, specifications, drawings, documentation, know-how
and pricing information, of every kind or description which may be disclosed by
either party (including such information which may be disclosed by an Affiliate)
to the other party in connection with this Agreement, provided the disclosing
party shall clearly xxxx any such information which is disclosed in writing as
the confidential property of the disclosing party and the disclosing party shall
identify the confidential nature of any such information which it orally
discloses at the time of such disclosure and shall provide a written summary of
the orally disclosed information to the recipient within fifteen (15) days of
such disclosure.
"Equipment" shall mean the hardware listed or otherwise identified in, or
pursuant to, any Product Attachment.
"Exhibits" shall mean this Exhibits A, B, C, and D attached hereto, and any
additional Exhibits which Nortel and Buyer subsequently agree in writing shall
be incorporated into, and made a part of the Agreement by reference.
"Hazardous Materials" shall mean any pollutants, dangerous substances, toxic
substances and/or hazardous substances (including, without limitation, asbestos)
as defined in, or pursuant to, the OSHA Hazard Communication Standard (29 CFR
Part 1910, Subpart Z), the Resource Conservation and Recovery Act of 1976(42 USC
Section 6901, et seq.), the Toxic Substances Control Act (15 USC Section 2601,
et seq.), the Comprehensive Environmental Response Compensation and Liability
Act (42 USC Section 9601, et seq.), and any other federal, state or local
environmental law, ordinance, rule or regulation.
"Order" shall mean a written purchase order issued by Buyer to Nortel. Each
Order shall specify on the face of the Order the types and quantities of
Products and/or Services to be furnished by Nortel pursuant to the Order, the
applicable
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prices, charges and/or fees with respect to such Products and/or Services,
Buyer's facility to which the Products are to be delivered, the delivery and/or
completion schedule, and any other information which may be required to be
included in an Order in accordance with the provisions of this Agreement.
"Product Attachments" shall mean any Product Attachments which the parties agree
in writing shall be incorporated into, and made a part of, this Agreement by
reference.
"Product Attachment Term" shall mean the period specified in a Product
Attachment during which that Product Attachment shall be in effect.
"Product Line" shall mean the Products described in and which may be furnished
pursuant to a specific Product Attachment.
"Products" shall mean any Equipment and/or Software which may be provided
hereunder.
"Service Use" shall mean any use of Products furnished hereunder which is or may
become the subject of a suit, claim or proceeding alleging that a method of use
claim in a patent is infringed, or which may result in a settlement payment, or
award of damages, or accounting of profits, where such payment, award, or
accounting is based on the revenues or profits earned by Buyer or on the lost
revenues or profits of a patent holder or other third party, arising from
Buyer's use of such Products.
"Service Use Limit" shall mean, with respect to a Service Use, an amount which
in the aggregate is equal to three percent (3%) of that portion of the prices,
charges, and fees paid by Buyer to Nortel pursuant to this Agreement for the
portion of the Products directly used by Buyer to effect such Service Use.
"Services" shall mean all services listed or otherwise identified in, or
pursuant to, any Product Attachment and which are associated with the Product
Line described in that Product Attachment, which may be purchased from or
provided by Nortel, such as, but not limited to, engineering, installation,
maintenance, training, provision of documentation, or post-warranty repair or
replacement services.
"Software" shall mean (a) programs in machine-readable code or firmware which
(i) are owned by, or licensed to, Nortel, (ii) reside in Equipment memories,
tapes, disks or other media, and (iii) provide basic logic operating
instructions and user-related application instructions, and (b) documentation
associated with any such programs which may be furnished by Nortel to Buyer from
time to time.
"Specifications" shall mean, with respect to any Product Line, the
specifications identified in the Product Attachment with respect to that Product
Line, provided
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Nortel shall have the right at its sole discretion to modify, change or amend
such specifications at any time.
"Third Party Software Vendor" shall mean any supplier of computer programs
contained in the Software which is not an Affiliate.
"Vendor Items" shall mean, with respect to a Product Line, those portions of the
Product which are identified in the Product Attachment with respect to that
Product Line as Vendor Items.
"Warranty Period" shall mean, with respect to a Product Line, the Warranty
Period specified in the Product Attachment with respect to that Product Line.
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EXHIBIT B
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SOFTWARE LICENSE
----------------
1. Buyer acknowledges that the Software may contain computer programs which
have been supplied by, and are proprietary to, Third Party Software
Vendors. In addition to the terms and conditions herein, Buyer shall abide
by any additional terms and conditions provided by Nortel to Buyer with
respect to any Software provided by any Third Party Software Vendor.
2. Upon Buyer's payment to Nortel of the applicable fees with respect to any
Software furnished to Buyer pursuant to this Agreement, Buyer shall be
granted a personal, non-exclusive, paid-up license to use the version of
the Software furnished to Buyer only in conjunction with Buyer's use of the
Equipment with respect to which such Software was furnished for the life of
that Equipment. Notwithstanding the foregoing, Buyer shall be granted no
title or ownership rights to the Software, which rights shall remain in
Nortel or its suppliers.
3. As a condition precedent to this license and to the supply of Software by
Nortel pursuant to the Agreement, Nortel requires Buyer to give proper
assurances to Nortel for the protection of the Software. Accordingly, all
Software supplied by Nortel under the Agreement or any renewals,
extensions, or expansions thereof, or in implementation of any of the
foregoing, shall be treated by Buyer as the exclusive property, and as
proprietary and a TRADE SECRET, of Nortel and/or its suppliers, as
appropriate, and Buyer shall: a) hold the Software, including, without
limitation, any methods or concepts utilized therein in confidence for the
benefit of Nortel and/or its suppliers, as appropriate; b) utilize the
Software solely in conjunction with the Equipment with respect to which
such Software was furnished, as it may be repaired or modified from time to
time; c) not provide or make the Software available to any person except to
its employees on a 'need to know' basis; d) not reproduce, copy, or modify
the Software in whole or in part except as authorized by Nortel; e) not
attempt to decompile, reverse engineer, disassemble, reverse translate, or
in any other manner decode the Software; f) issue adequate instructions to
all persons, and take all actions reasonably necessary to satisfy Buyer's
obligations under this license; and g) forthwith return to Nortel, or with
Nortel's consent destroy, any magnetic tape, disc, semiconductor device or
other memory device or system and/or documentation or other material,
including, but not limited to all printed material furnished by Nortel to
Buyer which shall be replaced, modified or updated.
4. The obligations of Buyer hereunder shall not extend to any information or
data relating to the Software which is now available to the general public
Network Products Purchase Agreement Number DM-11/95-DC
Page 17
or becomes available by reason of acts or failures to act not attributable
to Buyer.
5. Buyer shall not assign this license or sublicense any rights herein granted
to any other party without Nortel's prior written consent.
6. Buyer shall indemnify and hold Nortel and its supplier, as appropriate,
harmless from any loss or damage resulting from a breach of this Exhibit
B. The obligations of Buyer under this Exhibit B shall survive the
termination of the Agreement and shall continue if the Software is removed
from service.
Network Products Purchase Agreement Number DM~11/95-DC
Page 18
EXHIBIT C
---------
STORAGE
-------
If Buyer notifies Nortel prior to the scheduled shipment date of Products that
Buyer does not wish to receive such Products on the date agreed to by the
parties, or the installation site or other delivery location is not prepared in
sufficient time for Nortel to make delivery in accordance with such date, or
Buyer fails to take delivery of any portion of such Products, Nortel may place
the Products in storage. In that event Buyer shall be liable for all additional
costs thereby incurred by Nortel. Delivery by Nortel of any Products to a
storage location as provided above shall be deemed to constitute delivery of the
Products to Buyer for purposes of this Agreement, including, without limitation,
provisions for payment, invoicing, passage of risk of loss, and commencement of
the Warranty Period.
Network Products Purchase Agreement Number DM-11/95-DC
Page 19
EXHIBIT D
---------
LIMITED WARRANTIES AND REMEDIES
-------------------------------
1. Nortel warrants that the Equipment supplied hereunder will under normal
use and service be free from defective material and faulty workmanship and
will conform to the applicable Specifications for the Warranty Period
specified in the Product Attachment with respect to such Equipment. The
foregoing warranty shall not apply to items normally consumed in operation,
such as, but not limited to, lamps and fuses or to Vendor Items. Any
installation Services performed by Nortel with respect to such Equipment
shall be free from defects in workmanship for the Warranty Period set forth
in the applicable Product Attachment.
2. Nortel's sole obligation and Buyer's exclusive remedy under the warranty
set forth in Section 1 above shall be limited to the replacement or repair,
at Nortel's option and expense, of the defective Equipment, or correction
of the defective installation Services. Replacement Equipment may be new or
reconditioned at Nortel's option.
3. Nortel warrants that any Software licensed by Nortel to Buyer under this
Agreement shall function during the Warranty Period of the Equipment with
respect to which such Software is furnished without any material, service-
affecting nonconformance to the applicable Specifications, provided that
Buyer shall have paid all Software support fees specified in the applicable
Product Attachment. If the Software fails to so perform, Buyer's sole
remedy and Nortel's sole obligation under this warranty is for Nortel to
correct such failure.
4. Unless otherwise stated in a Product Attachment, (a) Nortel's warranties in
Section 3 above shall only apply to the portion of the Software actually
developed by Nortel or its Affiliates, (b) all other Software shall be
provided by Nortel "AS IS", (c) Nortel shall assign to Buyer on a
nonexclusive basis any warranty on such other Software provided to Nortel
by the developer of such other Software to the extent of Nortel's legal
right to do so.
5. The obligations and remedies set forth in Sections 1,2, and 3 above shall
be conditioned upon: the Equipment not having been altered or repaired, the
Software not having been modified, and the Products not having been
installed outside the United States; any defect or nonconformance not being
the result of mishandling, abuse, misuse, improper storage, improper
performance of installation, other services, maintenance or operation by
other than Nortel (including use in conjunction with any product which is
incompatible with the applicable Equipment or Software or of inferior
performance), and/or any error, act, or omission of Buyer described in
Section 11.4; the Product not having been damaged by fire, explosion, power
failure, power surge, or other power irregularity, lightning, failure to
comply with all applicable environmental requirements for the Products
specified by Nortel or any other applicable
Network Products Purchase Agreement Number DM-11/95-DC
Page 20
supplier, such as but not limited to temperature or humidity ranges, or any
act of God, nature or public enemy; and written notice of the defect having
been given to Nortel within the applicable Warranty Period.
6. The repair or replacement of Equipment, the correction of defective
installation Services, or the correction of Software pursuant to this
Section shall not extend the applicable Warranty Period except to the
extent specified in the applicable Product Attachment.
7. Upon expiration of the applicable Warranty Period for Equipment furnished
hereunder, repair and replacement Service for such Equipment shall be
available to Buyer from Nortel in accordance with Nortel's then-current
terms, conditions and prices. Such repair and replacement Service and
notice of any discontinuance of such repair and replacement Service shall
be available for a minimum period set forth in the Product Attachment
applicable to such Equipment. This provision shall survive the expiration
of this Agreement.
8. Unless Nortel elects to repair or replace defective Equipment at Buyer's
facility, all Equipment to be repaired or replaced, whether in or out of
warranty, shall be packed by Buyer in accordance with Nortel's instructions
stated in the applicable Product Attachment and shipped at Buyer's expense
and risk of loss to a location designated by Nortel. Replacement Equipment
shall be returned to Buyer at Nortel's expense and risk of loss. Buyer
shall ship the defective Equipment to Nortel within thirty (30) days of
receipt of the replacement Equipment. In the event Nortel fails to receive
such defective Equipment within such thirty (30) day period, Nortel shall
invoice Buyer for the replacement Equipment at the then-current price in
effect therefor.
9. With respect to any Vendor Item furnished by Nortel to Buyer pursuant to
this Agreement, Nortel shall assign to Buyer on a nonexclusive basis any
warranty granted by the party that supplied such Vendor Item to Nortel to
the extent of Nortel's right to do so.
10. Neither Nortel nor Nortel's suppliers, as appropriate, shall have any
responsibility for warranties offered by Buyer to any of its customers.
Buyer shall indemnify Nortel and Nortel's suppliers, as appropriate, with
respect thereto.
PRODUCT ATTACHMENT
PAGE 1
st7286h
PRODUCT ATTACHMENT
CARRIER NETWORKS PRODUCTS
Northern Telecom Inc.("Nortel") and DeltaCom, Inc.("Buyer") agree as follows:
1. INCORPORATION BY REFERENCE
--------------------------
This Product Attachment shall be incorporated into and made a part of
Network Products Purchase Agreement No. DM-11/95-DC ("Agreement") between
Nortel and Buyer.
2. DEFINITIONS
-----------
For purposes of this Product Attachment:
"Acceptance Criteria" shall mean, with respect to any Products installed by
Nortel hereunder, the standards and specifications contained in the Nortel
Installation Manuals which are applicable to such Products.
"Equipment" shall mean the equipment listed in Schedule A.
"Extension" shall mean Equipment and/or Software, identified in Schedule A,
which Nortel engineers and installs and which is added to an Initial System
after the Turnover Date of the Initial System.
"Initial System" shall mean the Equipment and Software which is included
in any configuration identified in Schedule A as an "Initial System."
"Installation Site" shall mean Buyer's facility identified in an Order to
which the applicable Products identified in such Order shall be delivered
or at which the applicable Services, if any, are to be performed,
respectively.
"Merchandise" shall mean any Equipment which is not part of a System and
with respect to which no engineering or installation Services shall be
provided by Nortel.
"Product Attachment Term" shall mean the period which shall commence on
the date this Product Attachment is executed by the latter of the parties
and shall expire twenty-four (24) months thereafter.
"Services" shall mean the services described in Schedule B.
"Software" shall mean the software listed in Schedule A.
PRODUCT ATTACHMENT
PAGE 2
"Specifications" shall mean with respect to any Products furnished
hereunder, the specifications published by Nortel which Nortel identifies
as its standard performance specifications for such Products as of the date
of Buyer's Order for such Products.
"System" shall mean any Initial System or Extension.
"Turnover Date " shall mean, with respect to any Products installed by
Nortel hereunder, the date on which Nortel provides the Turnover Notice to
Buyer pursuant to Section 7.a. of this Product Attachment.
"Warranty Period" shall mean, with respect to:
(a) Any System, the period which shall commence upon the Turnover Date
with respect to such System and shall expire twelve (12) months
thereafter,
(b) Merchandise, the period which shall commence upon the date of shipment
with respect to such Merchandise by Nortel to Buyer and shall expire
ninety(90) days thereafter,
(c) Installation Services involving any System, the period which shall
commence upon the Turnover Date with respect to such System and shall
expire twelve (12) months thereafter,
(d) Equipment which is repaired or replaced pursuant to Nortel's
obligations under Exhibit D to the Agreement, the period commencing
five (5) days after (i) shipment of the replacement Equipment to Buyer
or (ii) completion of the repair at the Installation Site of the
applicable Equipment and which shall expire on the later of thirty
(30) days thereafter or the last day of the original Warranty Period
with respect to the Equipment which was repaired or replaced, and
(e) Software which was corrected pursuant to Nortel's obligations under
Exhibit D to the Agreement, the period commencing upon delivery of the
corrected Software by Nortel to Buyer and expiring on the later of
thirty (30) days thereafter or the last day of the original Warranty
Period with respect to such Software.
3. SCHEDULES
---------
The following Schedules which are attached hereto are an integral part of
the Product Attachment and are incorporated herein by reference:
PRODUCT ATTACHMENT
PAGE 3
Schedule A - Products, Prices, and Fees
Schedule B - Services and Charges
Schedule C - Delivery
Schedule D - Documentation
4. ORDERING
--------
With respect to Section 3, ORDERING of the Agreement the following
additional terms shall apply:
a. Buyer shall identify in each Order for Products whether the Products
constitute an Initial System, Extension, or Merchandise. Except for the
prices, charges and/or fees set forth in Schedule A to this Product
Attachment, all Orders for Extensions, Merchandise, or any Services other
than engineering and installation Services provided by Nortel in connection
with an Order for an Initial System shall be subject to written agreement
of Buyer and Nortel on the applicable prices, charges and fees with
respect thereto as required pursuant to Section 5, PRICING, of this Product
Attachment.
b. Notwithstanding Exhibit C to the Agreement, Buyer may by written notice to
Nortel cancel without charge any Order for Products and/or Services prior
to the delivery date of the applicable Products set forth in such Order or
the agreed date for the commencement by Nortel of the applicable Services
("Service Commencement Date"), except that if Buyer cancels such Order
within six (6) weeks or less of any such date, a cancellation fee of
fifteen percent (15%) of the aggregate price of all Products and/or
Services being cancelled in such Order shall be payable by Buyer. Nortel
may invoice such amount upon receipt of Buyer's notice of cancellation of
the Order.
c. Notwithstanding Exhibit C to the Agreement, Buyer may by written notice to
Nortel not less than six (6) weeks prior to the delivery date of any
Products set forth in an Order and/or the Service Commencement Date of the
applicable Services, delay the delivery date of such Products and/or the
Service Commencement Date of such Services for a period which shall not
exceed ninety (90) days from the date such Products were originally
scheduled to be delivered or ninety (90) days from the Service Commencement
Date, subject to the availability from Nortel of the applicable Products
and/or Services after such period of delay.
d. Except as set forth in Sections 4.b. and 4.c. of this Product
Attachment,any change to an Order after Nortel's acceptance of such Order
shall require written agreement of Nortel and Buyer upon a written change
to the Order ("Change Order") which shall reference the original Order and
be executed by the parties. No such changes shall be implemented until the
applicable Change Order has been executed by the parties.
PRODUCT ATTACHMENT
PAGE 4
e. With respect to each Order for Products which is accepted by Nortel, Buyer
may make a written request at least ninety (90) days prior to the scheduled
shipment date of such Products for a change ("Change") consisting of
certain addition(s) or deletion(s) to such Products. After receipt of such
request, Nortel shall submit a Job Change Order ("JCO") to Buyer for
Buyer's approval with respect to the requested Change, except that Nortel
shall be under no obligation to submit such JCO to Buyer if Nortel
determines that the Price applicable to such Order would be reduced by more
than ten percent (10%) as a result of the implementation of the Change.
Each JCO shall state whether the requested Change shall increase or
decrease the Price and/or time required by Nortel for any aspect of its
performance under the Agreement with respect to such Order. Buyer shall
accept or reject the JCO in writing ten (10) days of receipt thereof.
Failure of the Buyer to accept or reject the JCO in writing as described
above shall be deemed a rejection of the JCO by Buyer. In the event an
accepted JCO involves the return to Nortel of any Equipment which shall
have been previously delivered to Buyer, Nortel may involve and Buyer shall
pay the transportation costs and Nortel's then-current restocking charge
for the returned Equipment.
f. Any increase or decrease in the Price with respect to an Order hereunder
which is occasioned by an accepted JCO shall be added to or subtracted
from, as applicable, the amount of the last payment due pursuant to Section
6 with respect to such Order.
g. If Buyer rejects a proposed JCO, then the rights and obligations of the
parties with respect to the applicable Order shall not be subject to
Buyer's requested Changes, provided that Buyer shall promptly pay to Nortel
all of Nortel's additional and reasonable costs and expenses incurred
hereunder in accordance with Buyer's requested Changes and Nortel's
additional and reasonable costs and expenses subsequently incurred in order
that Nortel may be able to perform Nortel's obligations without
modification by the requested Changes, and Nortel shall be entitled to an
extension of the dates for performance of its obligations with respect to
the applicable Order as a result of any delays in such performance which
result from the foregoing.
5. PRICING
-------
With respect to Section 4, PRICES of the Agreement, the following
additional terms apply:
a. The prices set forth in Schedule A with respect to any Initial System
and/or Extension shall be in effect for the Product Attachment Term. Nortel
may in its sole discretion, thereafter, increase any prices set forth in
Schedule A upon sixty (60) days prior written notice to Buyer. The prices
listed in Schedule A shall apply to any Order for an Initial System and/or
Extension listed in Schedule A
PRODUCT ATTACHMENT
PAGE 5
which shall be received by Nortel prior to the effective date of any change
in such prices as permitted by this Section, provided that delivery date
for such Initial System and/or Extension as set forth in the applicable
Order shall be not more than one-hundred twenty (120) days after Nortel's
acceptance of such Orders.
b. Except for the prices, charges and/or fees set forth in Schedule A, the
prices for Equipment and the fees for the right to use the Software
included in any Extension, prices for any Merchandise, and charges for any
Services, other than engineering and installation Services provided with
any Initial System and/or Extension shall be as subsequently agreed in
writing by Nortel and Buyer.
c. Notwithstanding anything to the contrary in the Agreement, shipment of the
Products to Buyer shall be F.O.B. Buyer's Installation Site.
d. During the Product Attachment Term, Buyer shall issue an Order or Orders
for a DTEI Extension with seven thousand six hundred eighty (7680) fully
wired and fully equipped ports (Purchase Commitment"). The price for each
such port is set forth in Schedule A, Section 1.2 (a) The number of ports
set forth on any given Order may be less that seven thousand six hundred
eighty (7680), provided that the number of ports set forth on any given
Order shall be in minimum increments of nine hundred sixty (960). In order
to qualify for the per port prices set forth in Schedule A, Section 1.2
(a), Buyer shall issue an Order or Orders for the total number of ports
included in the Purchase Commitment no later than thirty (30) days prior to
the expiration of the Product Attachment Term.
In the event Buyer has not issued an Order or Orders for the total number
of ports set forth in the Purchase Commitment by the thirtieth day prior to
the expiration of the Product Attachment Term, then the price per port for
each port ordered by Buyer prior to that time shall be as set forth in
Schedule A, Section 1.2 (b). Within thirty (30) days after expiration of
the Product Attachment Term, Nortel shall prepare an adjustment invoice for
the difference between the per port prices set forth in Schedule A, Section
1.2 (a) theretofore invoiced to Buyer, based upon the assumption that it
would timely satisfy the Purchase Commitment, and the per port prices set
forth in Schedule A, Section 1.2 (b) multiplied by the number of ports
ordered by Buyer prior to that time. Buyer shall pay the amount of the
adjustment invoice within thirty (30) days of the date thereof. Any Order
issued by Buyer during the thirty (30) day period prior to the expiration
of the Product Attachment Term shall be at the per port prices set forth in
Schedule A, Section 1.2 (b), regardless of the number of ports theretofore
ordered by Buyer; and any Order issued thereafter shall be at prices which
shall be agreed upon.
PRODUCT ATTACHMENT
PAGE 6
6. TERMS OF PAYMENT
----------------
With respect to Section 5, TERMS OF PAYMENT, the following additional terms
shall apply:
a. With respect to each Initial System furnished hereunder by Nortel to Buyer
the price listed in Schedule A shall be invoiced by Nortel in accordance
with the following schedule:
(i) Twenty percent (20%) of such price may be invoiced upon Nortel's
acceptance of the Order for such Initial System,
(ii) Fifty percent (50%) of such price may be invoiced on the date of
shipment by Nortel to Buyer of the switch component of such Initial
System,
(iii) Twenty percent (20%) of such price may be invoiced on the Turnover
Date of such Initial System, and
(iv) Ten percent (10%) of such price may be invoiced on the date of
Acceptance of such Initial System.
b. With respect to each Extension furnished hereunder by Nortel to Buyer, the
applicable price determined in accordance with Section 5.b. of this Product
Attachment shall be invoiced by Nortel in accordance with the following
schedule:
(i) Twenty percent (20%) of such price may be invoiced upon Nortel's
acceptance of the Order for such Extension,
(ii) Seventy percent (70%) of such price may be invoiced on the date of
delivery by Nortel to Buyer of the Equipment included in such
Extension, and
(iii) Ten percent (10%) of such price may be invoiced on the date of
Acceptance of such Extension.
c. Except as may be otherwise agreed in writing by the parties Nortel's prices
for Merchandise and charges for any Services determined in accordance with
Section 5.b. above may be respectively invoiced upon delivery of such
Merchandise and upon performance of such Services by Nortel.
PRODUCT ATTACHMENT
PAGE 7
7. TESTING TURNOVER, AND ACCEPTANCE
--------------------------------
Pursuant to Section 8.1 of the Agreement, the rights and obligations of the
parties with respect to testing, turnover and acceptance of any Products
furnished hereunder and installed by Nortel shall be as follows:
a. Nortel shall provide Buyer with five (5) business days written notice prior
to commencing final commissioning and testing of any Products installed by
Nortel. Buyer shall cause an authorized representative of Buyer to be
present at the applicable Installation Site to witness such final
commissioning and testing, provided that in the event such representative
fails to be present for any reason, Nortel shall not be required to delay
performance of such final commissioning and testing. In connection with the
final commissioning and testing of such Products, Nortel shall test the
Products for conformity with the applicable Acceptance Criteria. When such
tests have been successfully completed, Nortel shall provide Buyer with
written notice ("Turnover Notice") that the applicable Products meet such
Acceptance Criteria and are ready for Buyer's testing for compliance with
such Acceptance Criteria. Buyer shall promptly complete and return to
Nortel Buyer's acknowledgment of receipt of such Turnover Notice.
b. Following the Turnover Date, Buyer may test the applicable Products for
compliance with the Acceptance Criteria using the tests and test procedures
contained in Nortel's Installation Manuals with respect to such Products.
Within fifteen (15) days following the Turnover Date of the applicable
Products, Buyer shall notify Nortel either that Buyer has accepted such
Products in writing using Nortel's standard Acceptance Notice form or that
Buyer has not accepted such Products in which case Buyer shall also provide
Nortel with a written notice ("Notice of Deficiency") which shall provide
in reasonable detail the manner in which Buyer asserts that the Products
failed to meet the Acceptance Criteria. With respect to any such details
with which Nortel agrees, Nortel shall promptly proceed to take appropriate
corrective action and following correction, Buyer may retest the Products
in accordance with this Section. Buyer shall accept the Products in writing
without delay when the tests pursuant to this Section indicate that the
Products comply with the Acceptance Criteria.
c. With respect to any points of disagreement between Nortel and Buyer
concerning any Notice of Deficiency which are not resolved by Nortel and
Buyer within ten (10) days after the effective date of the Notice of
Deficiency, Buyer, at its option, may waive any rights it may have on
account of any such points of disagreement, or require that the disputed
points be resolved by arbitration.
d. Buyer shall notify Nortel in writing of its election pursuant to Section
7.c. not later than ten (10) days after the effective date of the Notice
of Deficiency, if any, given to Nortel by Buyer. Upon expiration of such
ten (10) day period unless Buyer has notified Nortel to the contrary, Buyer
shall be deemed to have elected
PRODUCT ATTACHMENT
PAGE 8
to waive its right with respect to any points of disagreement then existing
between it and Nortel with respect to such Notice of Deficiency.
e. If Buyer makes timely election to require arbitration of such disputed
points, the arbitrator shall be chosen by mutual agreement. If the parties
cannot agree upon an arbitrator within three (3) business days of Buyer's
election to arbitrate, each party shall within three (3) business days
thereafter select an independent and an unaffiliated person to be an
arbitrator. These two (2) persons selected shall select a third person,
independent and unaffiliated with either party, as a third arbitrator. The
arbitration shall be conducted in accordance with the Rules of the American
Arbitration Association, provided, however that the Arbitrator(s) shall be
empowered to reduce the Prices of Products only to the extent that the
Arbitrator(s) find that the benefit of Buyer's bargain has been reduced.
The Arbitrator(s) shall not have any authority to grant partial or total
rescission unless the Arbitrator(s) determine that (i) Buyer has not
substantially received the benefit of its bargain; and (ii) money damages
will not provide an adequate remedy. Judgment upon the award rendered by
the Arbitrator(s) may be entered in any Court of competent jurisdiction.
f. For purposes of this Product Attachment, "Acceptance" of the applicable
Products shall occur upon the earliest of the following and Buyer shall
upon request sign Nortel's Acceptance Notice confirming such Acceptance
without any conditions, restrictions, or limitations of any nature
whatsoever:
(i) The date on which Buyer accepts such Products pursuant to Section
7.b. of this Product Attachment;
(ii) The failure of Buyer to provide Nortel with any notice required by
Section 7.b. of this Product Attachment, with respect to such
Products;
(iii) Use by Buyer of such Products or any portion thereof in revenue-
producing service at any time; or
(iv) Waiver by Buyer of its rights pursuant to Section 7.c. or 7.d.
g. Acceptance by Buyer of such Products pursuant to Section 7.f. of this
Product Attachment above shall not be withheld or postponed due to.
(i) Deficiencies of such Products resulting from causes not attributable
to Nortel, such as, but not limited to (A) inaccuracy of information
provided by Buyer, (B) inadequacy or deficiencies of any materials,
facilities or services provided directly or indirectly by Buyer and
tested in conjunction with the applicable Products, (C) other
conditions external to the Products which are beyond the limits
specified by Nortel in the Specifications for the Products and which
are used by Nortel in performance calculations
PRODUCT ATTACHMENT
PAGE 9
with respect to the Acceptance Criteria, or (D) spurious outputs from
adjacent material; or
(ii) Minor deficiencies or shortages with respect to such Products which
are attributable to Nortel, but of a nature that do not prevent full
and efficient operation of the Products.
h. With respect to any deficiencies of the type described in Section 7.g.(i),
Nortel shall at Buyer's request and expense assist Buyer in the elimination
or minimization of any such deficiencies. With respect to any deficiencies
or shortages as described in the Section 7.g.(ii), Nortel shall, at
Nortel's expense, take prompt and effective action to correct any such
deficiencies or shortages.
i. In the event Buyer's Acceptance of any Products is withheld or postponed
due to any deficiencies of the type described in Section 7.g.(i), Nortel
shall invoice and Buyer shall pay Nortel's charges and reasonable expenses
incurred by Nortel associated with Nortel's investigation of the reasons
for Buyer's withholding or postponement of such Acceptance.
8. WARRANTIES AND REMEDIES
-----------------------
With respect to Exhibit D, LIMITED WARRANTIES AND REMEDIES, the following
additional terms shall apply:
a. Except as set forth in Section 8.b. below, Nortel shall in performance of
its obligations under Section 2 of Exhibit D to the Agreement, (i) ship
replacement Equipment or complete the repair within thirty (30) days of
Nortel's receipt of the Equipment to be replaced or repaired, and (ii)
commence the correction of the applicable installation Services within
thirty (30) days of receipt of notice from Buyer pursuant to Section 5 of
Exhibit D to the Agreement.
b. For emergency warranty service situations involving the Equipment, Nortel
shall during the applicable Warranty Period use all reasonable efforts to
ship replacement Equipment within twenty-four (24) hours of notification of
the applicable warranty defect by Buyer pursuant to Section 5 of Exhibit D
to the Agreement, provided that Buyer shall have requested such emergency
service. Nortel may invoice Buyer and Buyer shall pay Nortel's standard
fifty dollar ($50) surcharge for emergency warranty services. If Nortel
determines that due to the particular circumstances, onsite technical
assistance is necessary, Nortel shall use all reasonable efforts to
dispatch emergency service personnel to the applicable Installation Site
within twenty-four (24) hours of receipt of notice from Buyer as described
above.
PRODUCT ATTACHMENT
PAGE 10
c. All Products to be repaired or replaced, both within and outside of the
applicable Warranty Period, shall be packed by Buyer in accordance with
Nortel's then-current instructions.
d. No later than ninety (90) days prior to the expiration of the Warranty
Period with respect to any Initial System, Nortel shall offer to Buyer
post-warranty support by means of an extended service plan or other terms,
provided that neither party shall have any obligation with respect thereto
except as may be agreed upon in writing by the parites.
9. NOTICES
-------
Pursuant to Section 18.5 of the Agreement, any notices by Buyer to Nortel
which are specific to this Product Attachment shall be delivered to the
following address:
Northern Telecom Inc.
0000 Xxxxxxxx Xxxx.
Xxxxxxxxxx, Xxxxx 00000-0000
Attn: Vice President, Carrier Networks
10. ADDITIONAL TERMS
----------------
The following additional terms shall apply to the Agreement:
(a) With respect to Section 4, ORDERING, the following additional terms shall
apply:
In order to assist Buyer in preparing an Order, Nortel shall
provide to Buyer a written estimate/projection of the anticipated
delivery, installation, turnover and acceptance schedule which
estimate/ projection shall be subject to mutual agreement.
(b) With respect to Section 14, BUYER'S RESPONSIBILITIES, the following
additional terms shall apply:
(14.6) Buyer shall be responsible for ordering and coordinating with
each applicable local telephone company the installation of all
central office trunks and test trunks and Buyer shall be
responsible for all utility charges associated with the
installation, testing, operation and maintenance of Products
furnished hereunder, including, but not limited to, all
applicable charges for such central office trunks, test trunks
and any tie lines.
(c) Nortel shall provide documentation with respect to the Products in
accordance with Schedule D to this Product Attachment.
PRODUCT ATTACHMENT
PAGE 11
(d) Buyer hereby represents and warrants that it:
(i) was formerly known as, and is the successor in interest to, Southern
Interexchange Services, Inc.;
(ii) owns the DMS-250 System to which the DTEI Extension described in
Schedule A will be added;
(iii) shall use the DMS-250 System and the DTEI Extension, solely for the
purposes of providing telecommunications services to its subscribers; and
(iv) does not intend to resell the DMS-250 System or DTEI Extension,
unless it does so as part of a sale of all or substantially all of its
assets; and
(v) shall abide for the benefit of Nortel by all the terms and
conditions of the Software License contained in Exhibit B of the Agreement.
11. AMENDMENTS TO THE AGREEMENT
---------------------------
11.1 Solely for the purposes of this Product Attachment, certain provisions of
the Agreement shall be amended as follows:
a. Section 1.2 of Section 1, SCOPE of the Agreement is hereby amended to read:
The terms and conditions of this Agreement shall apply to the purchase by
Buyer and the sale by Nortel of Equipment and Services and the licensing of
Software furnished in connection with such Equipment which occur after the
date of last signature placed upon this Agreement and the corresponding
Product Attachments referenced in this Agreement. The terms and conditions
contained in a Product Attachment shall modify and/or supplement the other
terms and conditions of this Agreement, only with respect to the Product
Line and Services described in the Product Attachment.
b. Section 4.2 of Section 4 PRICES, of the Agreement is hereby amended to
read:
Until the total of all prices, charges and fees for Products and related
Services furnished hereunder shall have been paid to Nortel, Buyer shall
not sell, lease or otherwise transfer such Products or any portion thereof
or allow any liens or encumbrances to attach to such Products or any
portion thereof prior to payment in full to Nortel of the total of all such
prices, charges, and fees.
c. Section 6, TAXES, of the Agreement is hereby amended to read:
Buyer shall at Nortel's direction promptly reimburse Nortel or pay directly
to the applicable government or taxing authority all taxes and charges
arising hereunder, including, without limitation, penalties and interest
arising from an
PRODUCTS ATTACHMENT
PAGE 13
act or omission of Buyer, except for taxes computed upon the net income of
Nortel. Buyer's obligations pursuant to this Section 6 survive any
termination of this Agreement.
d. Sections 8.2 and 8.3, of Section 8, TESTING, TURNOVER AND ACCEPTANCE, of
the Agreement are hereby amended to read:
8.2 If Nortel does not install Products furnished hereunder, Nortel
shall prior to delivery of the Products perform such factory tests as
Nortel determines to be appropriate in order to confirm that such Products
shall be in accordance with the applicable Specifications. Buyer shall
deemed to have accepted the Products upon successful completion of such
tests.
8.3 In the event that Buyer places Products into revenue-generating
service, such Products shall be deemed to have been accepted by Buyer
without limitation or restriction.
e. Section 13.3, of Section 13, CONFIDENTIAL INFORMATION, of the Agreement is
hereby amended to read:
Nortel shall take reasonable care to use Buyer's Confidential Information
only to perform Nortel's obligations to provide Products and/or Services to
Buyer, provided Nortel may use any of Buyer's Confidential Information for
the development, manufacture, marketing and maintenance of new products
and/or services and/or changes or modifications to the existing Products
and/or Services, which Nortel may, in either case, provide the new and or
modified Products or Services to third parties without restriction.
f. Section 14.1 and 14.3, of Section 14, BUYER'S RESPONSIBILITIES, of the
Agreement are hereby amended to read:
All sites at which the Products shall be delivered or installed shall be
prepared by Buyer in accordance with Nortel's standards for the safe
installation, operation and/or maintenance of Equipment, including without
limitation, Equipment environmental requirement which are the same or
similar to that of installed Nortel Equipment at Buyer's site(s), as the
date of execution of this Products Attachment.
Buyer shall provide reasonable working space and facilities, including
heat, light, ventilation, telephones, electrical current, trash removal and
other necessary utilities for use by Nortel-designated maintenance
personnel, and adequate secure storage space, if required by Nortel, for
Products and materials. Buyer shall also provide reasonable and adequate
security for the Products while on Buyer's site.
PRODUCT ATTACHMENT
PAGE 13
g. Sections 18.3 and 18.6, of Section 18, GENERAL, of the Agreement are hereby
amended to read:
18.3 The construction, interpretation and performance of this Agreement
shall be governed by the laws of the State of Alabama, except for its rules
with respect to the conflict of laws.
18.6 In the event of a conflict between the provisions of this Agreement
which are not contained in a Product Attachment and the provisions of a
Product Attachment, the provisions of the Product Attachment shall prevail.
h. The definition of Specifications as set forth in Exhibit A to the Agreement
shall be amended to read as follows:
"Specifications" shall mean, with respect to any Product Line, the
specifications identified in the Product Attachment with respect to that
Product Line, provided Nortel shall have the right at its sole discretion
to modify, change or amend such specifications at any time prior to the
date of acceptance by Nortel of Buyer's Order.
i. Section 6 to the SOFTWARE LICENSE, as set forth in Exhibit B to the
Agreement shall be amended to read as follows:
Buyer shall indemnify and hold Nortel and its supplier, as appropriate,
harmless from any loss or damage resulting from a breach of this Exhibit B
by Buyer. The obligations of Buyer under this Exhibit B shall survive the
termination of the Agreement and shall continue if the Software is removed
from service.
j. STORAGE provisions, as set forth in Exhibit C to the Agreement shall be
amended to read as follows:
If Buyer notifies Nortel prior to the scheduled shipment date of Products
that Buyer does not wish to receive such Products on the date agreed to by
the parties, or the installation site or other delivery location is not
prepared in sufficient time for Nortel to make delivery in accordance with
such date, or Buyer fails to take delivery of any portion of such Products,
Nortel may place the Products in storage, at a mutually agreed upon
facility, upon the expiration of thirty (30) days from the date of the
previously scheduled shipment date. In that event Buyer shall be liable for
all additional and reasonable costs thereby incurred by Nortel. Delivery by
Nortel of any Products to a storage location as provided above shall be
deemed to constitute delivery of the Products to Buyer for purposes of this
Agreement, including, without limitation, provisions for payment,
invoicing, passage of risk of loss, and commencement of the Warranty
Period.
PRODUCT ATTACHMENT
PAGE 14
K. Section 2 and 8 to the LIMITED WARRANTIES AND REMEDIES provisions, as
set forth in Exhibit D to the Agreement shall be amended to read as
follows:
2. Nortel's sole obligation and Buyer's exclusive remedy under the
warranty set forth in Section 1 above shall be limited to the replacement
or repair, at Nortel's option and expense, of the defective Equipment, or
correction of the defective installation Services. Replacement Equipment
may be new or reconditioned at Nortel's option, but in any event
functionally equivalent to the defective equipment in all material
respects.
8. Unless Nortel elects to repair or replace defective Equipment at
Buyer's facility, all Equipment to be repaired or replaced, whether in
or out of warranty, shall be packed by Buyer in accordance with Nortel's
instructions stated in the applicable Product Attachment and shipped at
Buyer's expense and risk of loss to a location designated by Nortel.
Replacement Equipment shall be returned to Buyer at Nortel's expense
and risk of loss. Buyer shall ship the defective Equipment to Nortel
within thirty (30) days of receipt of the replacement Equipment.
In the event Nortel fails to receive such defective Equipment within
such thirty (30) days period due to an intentional act of the Buyer,
Nortel shall invoice Buyer for the replacement Equipment at the then
-current price in effect therefor.
NORTHERN TELECOM INC. DELTACOM, INC.
BY:/s/ Xxxxxx Xxxx BY:/s/ Xxx Xxxxxx
------------------------------ ---------------------------
(Signature) (Signature)
Name: Xxxxxx Xxxx Name: Xxx Xxxxxx
---------------------------- -------------------------
(Print) (Print)
Vice President & General
Title: Manager, Carrier Networks Title: CEO
--------------------------- ------------------------
Date: 24 January 1996 Date: 1/11/96
--------------------------- ------------------------
PRODUCT ATTACHMENT
PAGE 15
SCHEDULE A
----------
PRODUCTS, PRICES AND FEES
-------------------------
The following pages detail the contents of Schedule A.
DELTACOM PRODUCTS AND PRICING ATTACHMENT
SCHEDULE A
SCHEDULE A
I. EXTENSION PORTS
(DMS-250 SWITCHING SYSTEM)
1.0 PORT EXTENSIONS
1.1 FULLY WIRED AND FULLY EQUIPPED DTEI PORT EXTENSION ("DTEI EXTENSION")
The price for a DTEI Extension includes the following. Each DTEI
Extension is configured in minimum increments of nine hundred sixty
(960) ports, and is configured for SS7/PTS or ISDN signaling at
Buyer's request:
a) DTEI equipment and XPM+, or then current common control;
b) Buyer shall indicate in its Order either UTR, STR, CTD for DTCs
configured for SS7 or PTS capability; or UTR and ISDN pre-
processor circuit packs configured for ISDN PRI capability;
c) As required ENET/JNET, MS or processor memory extensions;
d) As required DMS-250 Service/Test Circuits to support the DTEI
Extension;
e) Power Distribution Center (PDC) equipment as required to support
the DTEI Extension;
f) Spare circuit packs, if required and deemed necessary by Nortel,
based on Nortel's standard engineering sparing guidelines.
1.2 FULLY WIRED AND FULLY EQUIPPED DTEI PORT EXTENSIONS PRICES
a) A DTEI Extension must be ordered in minimum increments of nine
hundred sixty (960) ports. In accordance with Section 5.d of the
Product Attachment, if Buyer issues an Order or Orders prior to
the thirtieth day prior to the expiration of the Product
Attachment Term for a total of at least seven thousand six
hundred eighty (7680) fully wired and fully equipped ports, then
the price per port shall be one hundred ninety dollars ($190).
b) If Buyer fails to issue an Order or Orders prior to the
thirtieth day prior to the expiration of the Product Attachment
Term for at least seven thousand six hundred eighty (7680) fully
wired and fully equipped ports in accordance with Section 5.d of
the Product Attachment, in minimum increments of nine hundred
sixty (960) ports, then the price per port shall be two hundred
thirty dollars ($230).
SCHEDULE A: DMS-250 SWITCHING SYSTEM
SECTION 1: FULLY WIRED AND FULLY EQUIPPED DTEI EXTENSIONS
1
DeltaComm Products and Pricing Attachment
Schedule A
SCHEDULE A
I. EXTENSION PORTS
(DMS-250 SWITCHING SYSTEM)
2.0 Optional DTEI Equipment
2.1 Dialable Wideband
Buyer may order two (2) NTAX78AA circuit packs per DTC in place of
the standard time switch circuit packs provided with a DTEI
Extension for an additional price of five thousand dollars ($5,000)
per each DTC or ten thousand dollars ($10,000) per each DTEI
frame.
2.2 Echo Cancellation
Buyer may order an upgrade from the NT6X50AB to the NT6X50EC
circuit pack for an additional price of three thousand three
hundred sixty dollars ($3,360) per circuit pack, in addition to the
price for the NT6X50AB circuit pack.
Appendix A: DMS-250 Switching System
Section 2: Optional DTEI Equipment 2
PRODUCT ATTACHMENT
PAGE 16
SCHEDULE B
----------
SERVICES AND CHARGES
--------------------
ENGINEERING
-----------
1. Nortel shall engineer each Initial System and/or Extension furnished
hereunder in accordance with Nortel's engineering practices to such Initial
System and/or Extension at the time such engineering is performed.
2. Nortel's charges for engineering each Initial System and/or Extension are
included in the prices and fees for the Initial System and/or Extension set
forth in Schedule A.
3. The provision of any other engineering by Nortel and the charges associated
therewith shall be as subsequently agreed in writing by Nortel and Buyer.
INSTALLATION
------------
1. Nortel shall install each Initial System and/or Extension furnished
hereunder at the applicable Installation Site in accordance with Nortel's
installation practices applicable to such Initial System and/or Extension
at the time such installation is performed.
2. Nortel's charges for performance of such installation are included in the
prices and fees for the Initial System and/or Extension set forth in
Schedule A.
3. The provision of any other installation by Nortel and the charges
associated therewith shall be as subsequently agreed in writing by Nortel
and Buyer.
TRAINING
--------
1. With each Initial System and/or DTEI Extension ordered hereunder, Nortel
shall make available to Buyer at Nortel's then current charges training
training requested by Buyer, if then currently available. Any such training
shall be delivered at Nortel's Training Center currently located in
Raleigh, North Carolina. Such training shall be in any of the courses
scheduled to be provided at that Training Center as set forth in Nortel's
applicable Technical Training Course catalog with respect to the Products
described in Schedule A to this Product Attachment.
2. Buyer shall be responsible for the payment of all travel and living
expenses of its employees whom Buyer sends to receive such training.
PRODUCT ATTACHMENT
PAGE 17
3. Additional Training in such courses shall be provided by Nortel to Buyer
subject to availability and scheduling of such courses. Nortel may change
the schedule of such courses at any time. Such additional training shall
be provided at Nortel's then-current charges.
4. All training provided by Nortel shall consist of such materials and cover
such subject as Nortel in its sole discretion determines to be appropriate.
Nortel makes no representation concerning the ability of anyone to
satisfactorily complete any training.
5. Nortel may add to, or delete from, the subject matter and or medium of any
of the training courses which Nortel provides. In addition, Nortel may
reschedule such courses as Nortel determines to be appropriate.
6. The availability of any training to Buyer as set forth above shall be
subject to any prerequisites identified by Nortel in its training catalog
or other documentation with respect to such training.
ADDITIONAL SERVICES
-------------------
1. All other services to be furnished hereunder shall be subject to written
agreement of the parties which shall set forth the terms and conditions
applicable to the provision of such services and a description of such
services and the charges for such services.
PRODUCT ATTACHMENT
PAGE 18
SCHEDULE C
----------
DELIVERY
--------
Delivery for all Product ordered hereunder shall be stated upon Buyer's purchase
order reflecting the mutual agreement of the parties.
PRODUCT ATTACHMENT
PAGE 19
SCHEDULE D
----------
DOCUMENTATION
-------------
Certain documentation with respect to the Products may be made available to
Buyer on CD-ROM pursuant to the terms and conditions set forth below.
In addition, Nortel may furnish to Buyer such other documentation with respect
to the Products as Nortel deems appropriate.
HELMSMAN TERMS AND CONDITIONS
1. DEFINITIONS
"CD-ROM" shall mean a compact disk with read-only memory.
"CD-ROM Software" shall mean the computer programs which provide basic logic,
operating instructions or user-related application instructions with respect to
the retrieval of CD-ROM Documentation, along with the documentation used to
describe, maintain and use such computer programs.
"CD-ROM Documentation" shall mean the documentation that Nortel makes available
to its customers on CD-ROM with respect to DMS-250, DMS-300, and/or DMS-STP
Systems.
2. SCOPE
With the delivery of each Initial System ordered by Buyer, Nortel shall deliver
a CD-ROM on which the appropriate CD-ROM Documentation is contained and a user
manual which shall set forth the procedures by which Buyer may use the CD-ROM
SOftware to access to the CD-ROM Documentation.
Buyer shall be solely responsible for obtaining, at its cost and expense, any
computer or other equipment and software required to use the CD-ROM, CD-ROM
Software and/or CD-ROM Documentation.
Buyer may order additional CD-ROMs from Nortel at Nortel's then current fees
therefor, and any such additional CD-ROMs shall be subject to these terms and
conditions.
3. LICENSE
Upon delivery of the CD-ROM, Nortel shall grant to Buyer a non-exclusive,
non-transferable and non-assignable license, subject to these terms and
conditions:
PRODUCT ATTACHMENT
PAGE 20
(a) to use CD-ROM Software solely to access to the CD-ROM Documentation; and
(b) to use the CD-ROM Documentation solely to operate and maintain the Initial
System with which it was delivered.
Buyer acknowledges that, as between Nortel and Buyer, Nortel retains title to
and all other rights and interest in the CD-ROM Software and CD-ROM
Documentation. Buyer shall not modify, translate or copy the CD-ROM Software or
CD-ROM Documentation without Nortel's prior written consent. Buyer shall hold
secret and not disclose to any person, except Buyer's employees with a need to
know, any of the CD-ROM Software or CD-ROM Documentation.
Buyer shall not sell, license, reproduce or otherwise convey or directly or
indirectly allow access to the CD-ROM Software or CD-ROM Documentation to any
other person, firm, corporation or other entity.
Except to the extent expressly set forth in this Schedule D, Nortel shall have
no obligations of any nature whatsoever with respect to the CD-ROM Software or
the CD-Rom Documentation.
4. DISCLAIMER OF WARRANTY AND LIABILITY
NORTEL MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY NATURE WHATSOEVER WITH
RESPECT TO THE CD-ROM, CD-ROM SOFTWARE, CD-ROM DOCUMENTATION OR ANY INFORMATION
CONTAINED ON ANY OF THE FOREGOING OR ANY RESULTS OR CONCLUSIONS REACHED BY BUYER
AS A RESULT OF ACCESS TO OR USE THEREOF, OR WITH RESPECT TO ANY OTHER MATTER OR
SERVICE PROVIDED BY NORTEL, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING,
BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE OR AGAINST INFRINGEMENT. NORTEL SHALL NOT BE LIABLE FOR ANY SPECIAL,
INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY NATURE WHATSOEVER INCLUDING
ANY SUCH DAMAGES WHICH MAY ARISE OUT OF THE USE OF OR INABILITY TO USE OR ACCESS
THE CD-ROM, THE CD-ROM SOFTWARE, THE CD-ROM DOCUMENTATION, AND FURTHER INCLUDING
LOSS OF USE, REVENUE, PROFITS OR ANTICIPATED SAVINGS REGARDLESS OF HOW SUCH
DAMAGES MAY HAVE BEEN CAUSED ARISING FROM THE USE OF OR INABILITY TO USE OR
ACCESS THE CD-ROM, CD-ROM SOFTWARE, OR CD-ROM DOCUMENTATION.
5. GENERAL
Nothing contained in this Schedule D shall limit, in any manner, Nortel's
right to change the CD-ROM Software or CD-ROM Documentation or the design
or
PRODUCT ATTACHMENT
PAGE 21
characteristics of Nortel's Products at any time without notice and without
liability.
