Exhibit 10.17
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF
THIS EXHIBIT. THE CONFIDENTIAL PORTIONS HAVE BEEN REDACTED AND ARE
DENOTED BY [*]. THE CONFIDENTIAL PORTIONS HAVE BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
PRODUCT PURCHASE AND SERVICES AGREEMENT
This Product Purchase and Services Agreement ("Agreement") is made
effective as of July 29, 1999 (the "Effective Date") by and between Alcatel
Internetworking, Inc., a California corporation ("AII") and Ziplink, Inc., a
Delaware corporation ("Ziplink" or "You").
RECITALS
1. AII is engaged in the business of manufacturing and selling the products
described in the attached Exhibit A (the "Products") and providing certain
services as further described herein ("Services").
2. Ziplink desires to purchase from AII, on the terms and conditions set forth
herein, certain Products listed in Exhibit A and certain Services as described
herein.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and conditions set
forth below, the parties agree as follows:
1. PURCHASE ORDERS AND PRODUCT LEAD TIMES
1.1 PLACEMENT OF ORDERS: Ziplink shall order Products or obtain
services from AII by submitting written purchase orders. Each
purchase order shall specify: (a) the Products by part number(s)
and the quantities ordered; (b) the date or dates requested for
delivery which date shall be at least twenty-one (21) days after
AII's receipt of such Purchase Order; and (c) the name, address
and telephone number of any carrier or freight forwarder
specifically requested by Ziplink or in the case of services: the
services to be provided including, the Product to which the
services are related, if applicable, the scope of the services to
be provided and the date the services are to be provided (a
"Purchase Order"). Purchase Orders will be effective upon issuance
of written confirmation by AII or shipment of Products ordered;
provided, that partial shipment shall not constitute acceptance of
the entire order. AII shall not be bound by the terms and
provisions of Ziplink's purchase order form to the extent such
terms or provision are not consistent with or conflict with this
Agreement. AII will make commercially reasonable efforts to accept
or reject all Purchase Orders within ten (10) days after AII's
receipt of such Purchase Order. The terms and conditions of this
Agreement, AII's invoice and/or confirmation, and AII's General
Terms and Conditions of Sale (to the extent they do not conflict
with this Agreement), the applicable Service description shall
govern the sale of Products and rendering of Services under this
Agreement. The terms and conditions of this Agreement shall
supercede any conflicting provision of any document provided by
either Ziplink or AII
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and not signed by both Ziplink and AII which conflict with the
terms and conditions of this Agreement.
1.2 PRODUCT LEAD TIMES: Ziplink shall, at least monthly, provide (or
more often as reasonably requested by AII within ten (10) business
days after Ziplink receives such request from AII) AII with a
forecast of its anticipated product needs for the next nine (9)
months. Such forecast is subject to reasonable change by Ziplink.
Attached hereto as EXHIBIT A-1 is the initial forecast. AII shall
use its commercially reasonable efforts to meet such forecast as
it shall change from time to time.
1.3 ENGINEERING ENHANCEMENTS: AII shall provide the Engineering
Enhancements as set forth in Exhibit B.
1.4 EVALUATION ORDERS AND DEMONSTRATION EQUIPMENT: By virtue of
execution of this Agreement, Ziplink acknowledges and agrees that
all Evaluation Orders and Demonstration Equipment provided under
the purchase orders set forth in Schedule 1 attached hereto (which
purchase orders identify Ziplink, Ziplink LLC or Ziplink Internet
as the purchaser) shall, upon execution of this Agreement, be
deemed consummated purchases of Products made exclusively by
Ziplink from AII. The warranty period for all such Products shall
have begun on the date such Products were shipped to Ziplink.
Payment shall be due as set forth in Section 3.4; however, no
default shall exist with respect to any amounts owed that would be
due on or before the date hereof in accordance with Section 3.4,
if such amounts are paid or acceptable financing arrangements with
AII are made within thirty (30) days following the date hereof.
2. DELIVERY AND TERMS OF SHIPMENT
2.1 DELIVERY: AII shall make commercially reasonable efforts to effect
shipment on or before the scheduled shipping date(s) reflected on
AII's acknowledgment and/or invoice, but such schedule may vary
due to, among other things, conditions beyond AII's reasonable
control, including, but not limited to, AII's receipt of all
materials and information to be supplied, where applicable, by
Ziplink. If no shipping date is specified, shipment will be made
on date(s) selected by AII. Delivery may be made within a time
period reasonably in advance of any scheduled delivery date but
which shall in no event exceed ten (10) days. Shipment shall be
F.O.B. the location of AII's shipping facility, unless otherwise
indicated on AII's acknowledgment and/or invoice.
2.2 PACKING: Unless otherwise noted on AII's acknowledgment and/or
invoice or as requested by Ziplink, all items will be packed for
shipment in accordance with AII's
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standard practice and shipped by the most appropriate method.
Unless specifically requested by Ziplink in writing or as agreed
between the parties, AII's standard practice shall be generally
consistent with standard industry practice. AII shall use
reasonable efforts to comply with AII's reasonable requests for
special shipping requirements; however, Ziplink may be responsible
for additional charges related to such special shipping
requirements. AII shall not assume any liability in connection
with such packing or shipment. If requested by Ziplink,
transportation charges will be prepaid and will be added to AII's
invoice as a separate item.
2.3 RISK OF LOSS: All risk of loss or damage to Products shall be
assumed by Ziplink upon AII's delivery of such products to the
carrier for shipment to Ziplink. Any and all claims by Ziplink for
damage, loss or delays in transit shall be made by Ziplink against
the carrier (with notice thereof to AII), and AII shall have no
responsibility or obligations with respect to any such damage,
loss or delay except to the extent permitted under relevant
provisions of this Agreement respecting the return of defective
products. Notwithstanding the foregoing, Ziplink shall maintain
public liability, property damage and casualty insurance covering
each Product in form and amount and with companies approved by AII
and shall name AII as loss payee and/or additional insured, as
their interests may appear from the time of AII's delivery of such
Products to the carrier until AII receives payment for the
Products as set forth herein. Ziplink shall pay the premiums
therefor, at its sole cost and expense, and shall deliver to AII
at any time upon request evidence of such policies satisfactory to
AII. Each insurer shall agree, by endorsement on the policy issued
by it or by independent instrument furnished to AII, that such
insurer will give AII thirty (30) day's prior written notice
before the policy in question shall be altered, canceled or
terminated without renewal. Ziplink hereby appoints AII as
Ziplink's attorney in fact to make claim for, receive payment of,
and execute and endorse all documents, checks or drafts for loss
or damage under any said insurance policy. At AII's request,
Ziplink shall furnish AII with evidence reasonably satisfactory to
AII that the insurance coverage required hereby is in effect. Each
insurance policy shall require payment thereunder notwithstanding
any breach or violation by Ziplink of any warranties, declarations
or conditions thereof.
2.4 DELAYS: AII will notify Ziplink immediately if the delivery of
Products cannot be completed by the agreed delivery date, and will
provide in such notice the expected date when delivery will take
place. In no event shall AII be liable for any damages or
penalties for delay in delivery or for failure to give notice of
delay.
2.5 SHIPMENT DEFERRAL: Ziplink may, by written notice to AII, defer
shipment of not more than one (1) order per calendar quarter of
all or part of a shipment of Products that is on order at the time
of deferral, by giving AII notice at least twenty-one (21)
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days prior to the originally requested delivery date. Ziplink
shall limit its deferral to a maximum deferral of sixty (60) days
from the original ship date on the Purchase Order. Purchase Orders
may not be deferred more than once.
2.6 ZIPLINK'S DUTY OF INSPECTION: Ziplink shall carefully inspect all
deliveries of products as they are received by Ziplink and report
to AII promptly (but in no event more than ten (10) business days
after receipt of shipment) any alleged error, shortage, defect or
nonconformity of such products which was reasonably discoverable.
Any failure by Ziplink to so inspect and report shall constitute a
waiver by Ziplink of any claim or right of Ziplink against AII
arising with respect to any such error, shortage defect or
nonconformity which was reasonably discoverable by such an
inspection.
2.7 RETURNS: Authorization to return products purchased from AII must
be obtained from AII prior to any such return. All returned
products must be shipped within ten (10) days of AII's
authorization, in the unopened in the original packaging and
container, and shall conspicuously bear the return merchandise
account number Ziplink obtains from AII prior to return. However,
except as set forth in Section 4.2, in no event shall AII be
entitled to return any products more than sixty (60) days after
shipment of such products to AII and Buyer shall not be entitled
to return merchandise which is not presently offered for sale by
AII to other customers. Except as set forth in Section 4.2,
Ziplink shall have no right to return more than twenty percent
(20%) of the Products ordered during any sixty (60) day period. In
AII's sole discretion, credit may be granted with respect to
returned products, less a restocking charge of no greater than ten
percent (10%), provided that any returned products must be shipped
appropriately packed under the circumstances to AII, freight
prepaid, at Ziplink's risk. AII shall notify Ziplink at least
fourteen (14)_days before shipment of Products which are no longer
offered for sale by AII to other customers. Ziplink then shall be
provided a reasonable opportunity which must be exercised at least
five (5) days before shipment to upgrade its purchase order to
reflect the changes in AII's product offering. In the event that
Ziplink after having received notice of the planned discontinuance
of a Product does not upgrade its purchase order, Ziplink
understands that it will not be entitled to return such Product
under Section 4.2.
2.9 CANCELLATIONS: Products canceled by Ziplink within seven (7) days
of the confirmed shipment date are subject to a cancellation
charge of ten percent (10%) of the net value of the canceled
portion of the order. Products canceled by Ziplink within eight
(8) to twenty-five (25) days of the confirmed shipment date, shall
be subject to a cancellation charge of five percent (5%) of the
net value of the canceled portion of the order. The parties agree
that the cancellation charge is not imposed as a penalty, but as
liquidated damages. Orders of non-standard products or special
product configurations and deferred shipments are not cancelable.
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3. PRICING
3.1 PRODUCT PRICES: Unless otherwise expressly indicated in writing by
AII, the purchase prices for Products shall be as set forth in
Exhibit A at the time the purchase order is received. Exhibit A
may be modified by AII at its sole discretion, and unless
otherwise agreed in writing between the parties, AII reserves the
right to change prices and discount rate(s) for any Products at
any time. Any price increase shall become effective upon thirty
(30) days notice to Ziplink, but shall not apply to purchase
orders which have been accepted by AII prior to thirty (30) days
after the date on which AII transmits the price increase notice to
Ziplink. Any price decrease shall become effective upon written
notice to Ziplink, and shall apply to any purchase orders which
are accepted but unfilled on the date on which AII transmits the
price decrease notice to Ziplink.
3.2 ADDITIONAL COSTS: Unless otherwise expressly indicated in writing
by AII, Ziplink shall pay, and be exclusively liable for, all
costs including, but not limited to, shipping, delivery and
insurance after AII has effected delivery of the products to the
carrier.
3.3 TAXES: Prices do not include any tax or other governmental charge
or assessment on the sale, shipment, production or use of any
products sold or services rendered to Ziplink hereunder. Such
taxes and charges, when applicable, may appear as separate
additional charges on AII's invoice. Ziplink shall be solely
responsible for, and shall pay to AII upon demand, any such tax,
charge or assessment, unless Ziplink has furnished to AII a valid
certificate issued by or acceptable to the tax authority in
question.
3.4 PAYMENT: Unless otherwise stated on AII's acknowledgment and/or
invoice, Ziplink shall pay all amounts due for Products purchased
or Services rendered hereunder in cash, wire transfer or check or
upon mutually agreeable financing terms with Alcatel USA within
sixty (60) days from shipment) from the later of Ziplink's receipt
of AII's invoice or Ziplink's receipt of the Product or Service,
provided that if AII deems Ziplink's financial status
unsatisfactory or Ziplink is in default of any material obligation
of Ziplink to AII, AII (without prejudice to any other rights or
remedies it may have) may require payment in full of all amounts
payable to AII by Ziplink under AII's invoice or otherwise prior
to shipment of any Products or the rendering of Services
thereunder. In the event any payment is not made within sixty (60)
days after the later of Ziplink's receipt of AII's invoice or
Ziplink's receipt of the Product or Service, Ziplink shall pay as
additional interest or service charge the amount indicated on
AII's then current applicable price list or, if none is so
indicated, in an amount equal to one percent (1%) of the unpaid
balance per month (or portion
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thereof), or if less, at the highest interest rate permitted to be
owed by AII to Ziplink for any reason whatsoever. Any amount which
Ziplink reasonably disputes based on objective evidence provided
to AII prior to such payment's due date shall not be subject to
the interest or service charge set forth above to the extent that
AII is later determined to have not owed such disputed amount.
3.5 EXPORT LAWS AND REGULATIONS: Any obligation of AII to provide
products shall be subject in all respects to all United States
laws and regulations governing the license and delivery of
technology and products abroad by persons subject to the
jurisdiction of the United States. Ziplink shall not export,
directly or indirectly, any products or related information
without first obtaining all required licenses and approvals from
the appropriate government agencies.
3.6 ZIPLINK'S MATERIALS: If applicable, Ziplink represents and
warrants that any and all materials or other items furnished by or
on behalf of Ziplink to AII for use in connection with production
of AII's products will be Ziplink's exclusive property, free and
clear of all liens, claims and encumbrances whatsoever. Unless
otherwise indicated on AII's acknowledgment and/or invoice,
Ziplink shall bear all costs of delivering such materials and
items to AII's production facility. AII shall be liable for any
loss, destruction or damage of any such materials or items while
in AII's procession to the extent (but only to be extent) caused
solely by AII's negligence, subject to the limitation on AII's
liability described in Section 4.7 below.
3.7. SOFTWARE LICENSE: Upon acceptance of and payment for any software
and/or documentation shipped by AII to Ziplink, and subject to the
terms and conditions of this Agreement, Ziplink shall have a
worldwide, nonexclusive, nonsublicensable, nontransferable license
to use such software and/or documentation. Ziplink may make one
(1) copy of the software for back-up and disaster recovery
purposes only. The licenses set forth herein shall terminate
immediately upon Ziplink's discontinuance of the use of the
equipment on which the software is installed. Ziplink understands
and agrees that title to, and all rights of ownership in, any such
software and/or documentation shall at all times remain with AII
and relevant third parties.
4. WARRANTIES OF AII
4.1 WARRANTIES: AII warrants to Ziplink that the Products other than
software including software media shall be free from material
manufacturing and materials defects under conditions of normal use
for a period of twelve (12) months from shipment by AII to
Ziplink. Products which do not comply with the above warranty and
are returned by Ziplink to AII during the warranty period (as
shown by appropriate documentation) will be repaired or replaced
at AII's option, at no cost to Ziplink.
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4.2 RETURN OF AII PRODUCTS: Ziplink will bear the cost of freight and
insurance of returned AII's Products, and AII shall bear the cost
of freight and insurance of repaired AII's Products. All returned
products must be in the original, or substantially similar,
packaging and container and shall conspicuously bear the RMA
number Ziplink obtains from AII prior to return. If AII cannot, or
determines that it is not practical to, repair or replace the
returned Product, the price therefor paid by Ziplink will be
credited and applied to future orders. AII will make available to
Ziplink spare parts for purchase at prices set forth in AII's then
current price list. Upon return of such repaired Products, the
warranty with respect to such products will continue for the
remaining unexpired warranty or sixty (60) days, whichever is
longer.
4.3 SOFTWARE PROBLEM RESOLUTIONS: AII will use commercially reasonable
efforts to provide Ziplink with corrective solutions or upgrades
for software defects, glitches, "bugs" or problems with respect to
the Product of which Ziplink has notified AII during the first
ninety (90) days after the Product is purchased from AII. During
this ninety (90) day period, AII may offer maintenance releases on
new software releases ("Software Releases"), at its sole
discretion, to Ziplink for software fixes. Outside of the period
set forth herein, software fixes shall only be available through
Software Releases.
4.4 WARRANTY OF WORKMANSHIP: AII warrants to Ziplink that Services
will be performed in a professional and workmanlike manner.
4.5 GUARANTY OF PERFORMANCE: AII shall, in conjunction with Ziplink,
work with Ziplink to establish and maintain at least a ninety
(90%) average monthly utilization rate during the one (1) year
period following the date hereof for the Web TV Application as
currently in use (the "Baseline Rate"). The Baseline Rate shall
not include any cause of interruption not attributable to AII
such as busy signals, "no carrier" status, user authentication
failures, changes in or to Ziplink's software or hardware not
approved by AII, or network connectivity failures. Ziplink shall
keep AII continuously updated as to the Rate. In the event of any
ongoing performance deficiency below such Rate, AII shall use its
commercially reasonable efforts to remedy such deficiency as soon
as possible. Within ten (10) business days following written
notice by Ziplink detailing any significant performance
deficiency in the Rate, AII shall deliver an initial draft of an
action plan to Ziplink and use all commercially reasonable
efforts to initiate a resolution of the problem within thirty
(30) days. Ziplink will use all commercially reasonable efforts
cooperate fully with AII in resolving such problems.
In addition, AII is responsible for ensuring that the Products
when purchased (unless otherwise disclosed to Ziplink) are
substantially interoperable in all material
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functionality with the then-commercially available open (i)
switching systems and routers of the two largest recognized
providers (for shipments within the United States) of such
hardware, and (ii) Cisco/American Internet and AII service
management center software. If any Product purchased by Ziplink
fails to meet such interoperability standard, Ziplink shall
provide AII with written notice specifically detailing the
relevant deficiencies. Should AII not cure such deficiencies
within ninety (90) days following receipt of notice thereof, AII
shall either repurchase the non-interoperable hardware at its
purchase price or obtain other hardware or software for Ziplink
that will address the interoperability problems. This obligation
shall continue with respect to any unit purchased for a period of
two (2) years from its date of purchase, and Ziplink's notice must
be received by such time; the notice and AII's obligations shall
be applicable only to those units (of the same Product) purchased
no more than two (2) years prior to the date of the notice.
Finally, in the event AII fails to comply with the terms of this
paragraph, Ziplink shall be permitted to terminate this Agreement.
4.6 SPECIFICATIONS: It is the sole and exclusive responsibility of
Ziplink to determine the suitability of any and all products of
AII for Ziplink's intended purposes and uses. AII warrants that
the products sold hereunder conform to AII's applicable
specifications for such products (subject to AII's standard
tolerances for variations) as in effect at the time of shipment by
AII, or, if applicable, specifications provided by Ziplink and
expressly accepted by AII in writing provided that AII shall not
have any liability whatsoever for any damage to or defect in
products resulting directly or indirectly from events occurring
after the shipment of such products by AII unless directly caused
by AII.
THE WARRANTIES SPECIFIED IN THIS AGREEMENT ARE THE SOLE AND EXCLUSIVE WARRANTIES
GIVEN BY AII WITH RESPECT TO PRODUCTS AND SERVICES SOLD OR PROVIDED BY AII. AII
GIVES AND MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESSED OR IMPLIED,
OTHER THAN THAT EXPRESSLY SET FORTH HEREIN. NO REPRESENTATIVE OF AII IS
AUTHORIZED TO GIVE OR MAKE ANY OTHER REPRESENTATION OR WARRANTY OR MODIFY THIS
WARRANTY IN ANY WAY. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NO
IMPLIED WARRANTY OF MERCHANTABILITY, NO IMPLIED WARRANTY OF FITNESS FOR ANY
PARTICULAR PURPOSE AND NO IMPLIED WARRANTY ARISING BY USAGE OF TRADE, COURSE OF
PERFORMANCE IS GIVEN OR MADE BY AII OR SHALL ARISE BY OR IN CONNECTION WITH ANY
SALE OR PROVISION OF PRODUCTS OR SERVICES BY AII, OR ZIPLINK'S USE OF ANY
PRODUCTS OR SERVICES OR AII'S AND/OR ZIPLINK'S CONDUCT IN RELATION THERETO OR TO
EACH OTHER AND IN NO EVENT SHALL AII HAVE ANY LIABILITY OR OBLIGATION
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WHATSOEVER UNDER OR IN CONNECTION WITH ANY SUCH WARRANTY WITH RESPECT TO ANY
PRODUCTS OR SERVICES.
4.7 LIMITATION ON AII'S LIABILITY: Ziplink acknowledges that it does
not rely on, and waives any claim relating to, any recommendation
or instruction given to Ziplink by AII or any of its
representatives regarding the specification, storage, handling or
use of products purchased and sold hereunder, which recommendation
or instruction shall be followed by or acted upon Ziplink entirely
at Ziplink's own risk.
IN NO EVENT SHALL AII BE LIABLE TO THE ZIPLINK FOR ANY INDIRECT, PUNITIVE,
SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR RELATED TO
THIS AGREEMENT OR THE PRODUCTS OR SERVICES PROVIDED IN CONNECTION HEREWITH
(INCLUDING LOSS OF PROFITS, USE, DATA, OR OTHER ECONOMIC ADVANTAGE), HOWEVER
ARISING, WHETHER FOR BREACH OF THIS AGREEMENT, INCLUDING BREACH OF WARRANTY OR
IN TORT, EVEN IF THAT PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF
SUCH DAMAGE. SUBJECT TO SECTION 7.2 BELOW, AII SHALL BE LIABILE TO THE ZIPLINK
FOR THE ZIPLINK'S PROVEN DIRECT DAMAGES TO THE EXTENT CAUSED, AS DETERMINED BY A
COURT OF COMPETENT JURISDICTION, BY AII, ARISING OUT OF, OR IN CONNECTION WITH,
THE SALE OR USE OF THE PRODUCTS OR SERVICES SOLD HEREUNDER, THE TRANSACTIONS
CONTEMPLATED HEREBY, OR AII OR ZIPLINK'S CONDUCT OR ACTIONS IN RELATION TO ANY
OF THE SAME OR TO EACH OTHER ("CLAIMS") IN AN AMOUNT NOT TO EXCEED TWICE THE
AMOUNT(S) ACTUALLY RECEIVED BY AII FROM ZIPLINK AS PURCHASE PRICE FOR THE
SPECIFIC PRODUCT(S) OR SERVICE(S) WHICH GIVE RISE TO AII'S LIABILITY.
4.8 MAINTENANCE, SUPPORT, TRAINING: Any maintenance, support or
training services other than those set forth in this Agreement
that may be requested by Ziplink may also be subject to a separate
AII term sheet and AII may require Ziplink to enter into a
separate agreement therefor, which services would then be provided
at an additional charge.
5. SERVICES
5.1 SERVICES: AII shall provide Ziplink's employees with training
related to the Product. EXHIBIT C attached hereto details the
training options available. AII shall provide Ziplink with a two
thousand dollars ($2,000.00) credit against the costs of training
for every one hundred thousand dollars ($100,000.00) of Product
purchased by Ziplink. Such one hundred thousand dollars ($100,000)
shall be based upon the net
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price of Product paid by Ziplink to AII.
5.2 SERVICE AND SUPPORT: EXHIBIT D sets forth the other service and
support agreements of the parties. Failure to provide support and
service pursuant to the terms of Exhibit D of this Agreement
within thirty (30) days after receipt by AII of notice of such
failure shall constitute a material breach of the Agreement.
Pricing for support shall be set forth in Exhibit D. Ziplink will
notify AII within thirty (30) days after shipment of each Product
that it does not desire support for such Product.
5.3 GUARANTY OF SERVICE: There shall be no restocking charges for
Product returned because of defect or where Service has not been
provided as required by this Agreement. In addition, provided that
Ziplink is not in material breach of this Agreement at the time it
obtains or renews such Service, for three (3) years from the date
of shipment of the applicable Product, AII shall have a continuing
obligation to Ziplink to offer maintenance and service support for
Product subject to Exhibit D notwithstanding Ziplink's continuing
purchase of Product or the termination of other provisions of this
Agreement.
5.4 General Terms Related to Service
5.4.1 Ziplink's order for Service will be according to the terms of
AII's then current Service description.
5.4.2 To be eligible for Services, Products to be serviced must be in
good operating condition at current specified revision levels. AII
may charge its standard rates in effect on the date of Ziplink's
Service order is place to make Products eligible for Services.
5.4.3 Relocation of Products is Ziplink's sole responsibility and may
result in adjustments to Service charges and changes to Service
response times. If Products are relocated outside the continental
United States, their continued Service will also be subject to the
reasonable availability of a AII authorized service provider.
5.4.4 Ziplink is responsible for the security of its proprietary and
confidential information and for maintaining a procedure external
to the Products to reconstruct lost or altered Ziplink files, data
or programs. Ziplink agrees to have its representative present
when AII provides Service. Ziplink agrees to notify AII if
Products are being used in an environment which poses a potential
health hazard to AII's employees or subcontractors.
5.4.5 Services may be furnished by AII, or for AII by AII's
subcontractor, or a AII authorized Service provider.
5.4.6 All replaced parts will become the property of AII on an exchange
basis.
5.4.7 Diagnostics, documentation, spare parts, tools, test equipment and
other material
used in the performance of installation, warranty, maintenance or
professional services ("Services") may be furnished by AII, or
with Products, or stored at Ziplink's facility. AII grants no
title or license to such material and it remains the exclusive
property of AII. Ziplink agrees to promptly return all such
material to AII upon AII's written request.
6. TERM AND TERMINATION
6.1 TERM: The initial term of this Agreement is one (1) year.
Thereafter this Agreement will automatically renew for one (1) one
(1) year term, unless it is earlier terminated by written notice
thirty (30) days prior to the end of the initial term.
6.2 TERMINATION UPON DEFAULT: If either party defaults in the
performance of any of its material obligations hereunder or
defaults under any agreement with any Affiliate of the other party
and if such default is not corrected within thirty (30) days after
written notice thereof by the other party, then the non-defaulting
party, at its option, may, in addition to any other remedies it
may have, terminate this Agreement by giving written notice of
termination to the defaulting party.
6.3 TERMINATION FOR CONVENIENCE: Subject to the applicable provisions
set forth herein, either party may terminate this Agreement after
providing ninety (90) days prior written notice to the other
party.
6.4 TERMINATION FOR CAUSE: This Agreement may be terminated by either
party, on written notice, (i) if the other party becomes
insolvent, (ii) upon the institution by the other party of
insolvency, receivership or bankruptcy proceedings or any other
proceedings for the settlement of its debts, (iii) upon the
institution of such proceedings against the other party, which are
not dismissed or otherwise resolved in such other party's favor
within sixty (60) days thereafter, (iv) upon the other party's
making a general assignment for the benefit of creditors, or (v)
upon the other party's dissolution or ceasing to conduct business
in the normal course.
6.5 EFFECT OF TERMINATION OR EXPIRATION: Termination or expiration of
this Agreement shall not relieve Ziplink's payment obligations
incurred during the term of this Agreement. In addition, Sections
3.5, 3.7, 4.1, 4.3, 4.4, 4.5, 4.6, 4.7, 6.5, 7, 8, 9, 10 and 11
shall survive expiration or termination and remain in effect
thereafter. Provided Ziplink is not in material breach of this
Agreement, AII shall complete all work in progress commenced
against uncanceled purchase orders and shall deliver the Product
specified in such uncanceled purchase orders.
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7. INDEMNITIES
7.1 ZIPLINK'S INDEMNITY: Subject to Section 7.2 below, Ziplink agrees
to indemnify, hold harmless and defend AII (and its employees,
subsidiaries, affiliates, successors, assigns and agents) from and
against any and all judgments, liabilities, damages, losses,
expenses and costs (including, but not limited to, court costs and
attorneys' fees) incurred or suffered by AII, which directly
relate to or arise out of (i) Ziplink's use, handling, sale or
distribution of the products sold hereunder, (ii) Ziplink's breach
of any representation, warranty or obligation hereunder, and/or
(iii) the infringement or violation of any third party's
intellectual property or other rights arising out of or in
connection with AII's use of specifications, materials or other
items provided to AII by Ziplink.
7.2 AII'S INDEMNITY: AII will defend any action brought against
Ziplink to the extent based on a claim that a product supplied by
AII, when used for any of the purposes contemplated by AII,
directly infringes a third party United States patent or United
States copyright. AII will pay any award against Ziplink, or
settlement entered into on Ziplink's behalf, based on such
infringement only if Ziplink notifies AII promptly in writing of
the claim, provides reasonable assistance in connection with the
defense and/or settlement thereof, at AII's expense, and permits
AII to control the defense and/or settlement thereof. AII shall
have no liability if the alleged infringement is caused by (i) use
of other than the then-most-recent version of such product
provided by AII to Ziplink hereunder, (ii) use of a product for
which AII has provided Ziplink with modifications or substitute
products pursuant to Section 7.3 below, if use of such
modifications or substitute products would have prevented the
claim, or (iii) any combination of AII's product with Ziplink's
product or other non-AII equipment, programs or data, where AII's
product alone would not have given rise to the claim.
7.3 MODIFICATIONS/SUBSTITUTIONS: In the event of an infringement
action against Ziplink with respect to a Product supplied by AII,
or in the event AII believes such a claim is likely, AII shall be
entitled, at its option but without obligation or additional cost
to Ziplink or its customers, to (i) appropriately modify such
Products, or substitute other products which, in AII's opinion, do
not infringe any third party intellectual property rights;
provided, that such modifications or substitutions shall not
materially affect the fit or function of such Products; (ii)
obtain a license with respect to the applicable third party
intellectual property rights; or (iii) if neither (i) nor (ii) is
commercially practicable, terminate Ziplink's licenses hereunder.
7.4 AII'S ENTIRE LIABILITY: Notwithstanding anything contained herein,
this Section 7 states AII's entire liability for actual or alleged
infringement of intellectual property rights.
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8. CONFIDENTIALITY
8.1 DESIGNATION: As used in this Agreement, the term "Confidential
Information" shall mean any information disclosed by one party to
the other pursuant to this Agreement which is in written, graphic,
machine readable or other tangible form and is marked
"Confidential", "Proprietary", or in some other manner to indicate
its confidential nature. Confidential Information may also include
oral information disclosed by one party to the other pursuant to
this Agreement, provided that such information is designated as
confidential at the time of disclosure and is reduced to writing
by the disclosing party within a reasonable time (not to exceed
thirty (30) days) after its oral disclosure, and such writing is
marked in a manner to indicate its confidential nature and
delivered to the receiving party. Notwithstanding any failure to
so identify it, however, all Software source code shall be AII
Confidential Information.
8.2 EFFECT OF DESIGNATION: Each party shall treat as confidential all
Confidential Information of the other party, shall not use such
Confidential Information except as set forth herein, and shall use
reasonable efforts not to disclose such Confidential Information
to any third party. Without limiting the foregoing, each of the
parties shall use at least the same degree of care which it uses
to prevent the disclosure of its own confidential information of
like importance to prevent the disclosure of Confidential
Information disclosed to it by the other party under this
Agreement. Each party shall promptly notify the other party of any
actual or suspected misuse or unauthorized disclosure of the other
party's Confidential Information.
8.3 EXCEPTIONS: Notwithstanding the above, neither party shall have
liability to the other with regard to any Confidential Information
of the other which the receiving party can prove:
i) was in the public domain at the time it was disclosed or has
entered the public domain through no fault of the receiving
party;
ii) was known to the receiving party, without restriction, at the
time of disclosure, as demonstrated by files in existence at
the time of disclosure;
iii) is disclosed with the prior written approval of the
disclosing party;
iv) was independently developed by the receiving party without any
use of the Confidential Information, as demonstrated by files
created at the time of such independent development;
v) became known to the receiving party, without restriction,
from a source other than the disclosing party without breach
of this Agreement by the receiving party and otherwise not in
violation of the disclosing party's rights;
vi) is disclosed pursuant to the order or requirement of a court,
administrative agency, or other governmental body; provided,
however, that the receiving party shall provide prompt notice
thereof to the disclosing party to enable the disclosing
party to seek a protective order or otherwise prevent or
restrict such disclosure.
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8.4 RETURN OF MATERIALS: Upon expiration or termination of this
Agreement, each party shall return all Confidential Information
received from the other party.
8.5 PRESS RELEASES: Except as to its Affiliates, as part of a
governmental inquiry, pursuant to a court order or where such
disclosure is limited to the existence of a relationship between
the parties, neither party shall disclose by press release or
other marketing/sales material the basis of the relationship
between them or this Agreement without the written authorization
of the other party which will not be unreasonably withheld,
conditioned or delayed. However, written authorization once given
will apply to additional substantially similar uses until such
authorization is revoked, i.e. written authorization to disclose
the relationship in a marketing proposal will allow disclosure in
other marketing proposals until such authorization is revoked.
9. TITLE
9.1 TITLE: Subject to Section 3.7 herein, title to all Products sold
by AII to Ziplink shall pass from AII to Ziplink when Ziplink has
paid in full for such Products. However, if Ziplink should fail to
pay when due any amount Ziplink owes to AII on account of such
Products, AII shall have, in addition to any other rights of AII,
the right (without liability of AII) to repossess such Products or
to require Ziplink to effect (at Ziplink's expense) return
delivery of such products to AII. In addition, until Ziplink has
paid to AII the entire amount due to AII for such Products,
Ziplink agrees that each Product is, and shall at all times be and
remain, the sole and exclusive property of AII. Ziplink shall have
no right, title or interest therein, except as expressly set forth
herein. Ziplink will execute and deliver to AII all such
instruments and documentation reasonably requested by AII
confirming AII's ownership interest in such Product(s). To the
extent that Ziplink is deemed to receive any interest in the
Product(s) that this Agreement shall constitute a financing under
applicable law, then Ziplink hereby grants to the AII a security
interest in and to the Product(s). Ziplink agrees to execute and
file Uniform Commercial Code financing statements and to take
whatsoever action as is requested by AII necessary or beneficial
to protect or perfect AII's interest in any or all of the
Product(s) or the payments due hereunder. AII may file a copy of
this Agreement, as well as any Order, as a financing statement. To
facilitate the foregoing, Ziplink covenants that it will not move
any Product(s) from the site of its delivery (any such removal
also requiring the written consent of the AII), change its
principal place of business or chief executive office from its
address as set forth in this Agreement or change its name (or do
business in any other name) in each case without providing to AII
at least thirty (30) days' prior written notice.
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10. INTELLECTUAL PROPERTY RIGHTS
10.1 OWNERSHIP: No ownership interest in intellectual property rights
shall pass from AII to Ziplink under this Agreement. AII shall
have and retain all intellectual property rights in the results of
development work relating to Products or Services. AII may
incorporate the results of any developmental work into Products or
other Services for use, license, lease or other disposition.
10.2 SOFTWARE. Any software delivered to Ziplink under this Agreement
shall be subject to the terms of the non-exclusive license in
Section 3.7. Ziplink shall obtain no proprietary rights to such
software. Ziplink shall not and shall not attempt to change,
modify, deface, alter, reproduce or disclose the programming
content of any software without AII's express written consent.
Ziplink's failure to abide by any of these restrictions shall
constitute a material breach of this Agreement giving AII cause to
immediately terminate this Agreement.
11. YEAR 2000 MATTERS
11.1 YEAR 2000 MATTERS: AII warrants to Ziplink that the Products
manufactured by AII and sold hereunder, to the extent used in
accordance with user documentation supplied by AII, will not improperly
generate, record, interpret, exchange or display dates within calendar
year 2000, provided no product communicating with AII's Products
improperly generates, records, interprets, exchanges or displays such
dates. AII's sole liability and Ziplink's exclusive remedy for breach
of the above warranty is for AII, at its sole option, and provided
Ziplink has notified AII promptly after discovery of a non-conformity
(but in no event later than December 31, 2000), to repair or replace
non-conforming hardware, or to provide a maintenance release, patch or
workaround for non-conforming software.
12. GENERAL TERMS
12.1 GOVERNING LAW/ATTORNEYS' FEES: This Agreement shall be governed by
and construed and enforced in accordance with the laws of the
State of Texas without regard to its conflicts of law rules. In
the event it becomes necessary for either party to employ an
attorney in order to enforce the terms hereof, or to protect the
rights of either party hereunder, and such party is successful in
any action in connection therewith, the other party agrees to pay
such prevailing party the reasonable attorneys' fees and legal
costs incurred.
12.2 WAIVER/SEVERABILITY/AMENDMENTS: No failure or delay by a party
hereto in exercising any right, power or remedy under this
Agreement, and no course of dealing between the parties hereto,
shall operate as a waiver of any such right, power or
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remedy. The terms and provisions of this Agreement may be waived,
or consent for the departure therefrom granted, only by written
document executed by the party entitled to the benefits of such
terms and provisions. No such waiver or consent shall be deemed to
be or shall constitute a waiver or consent with respect to any
other term or provision of this Agreement, whether or not similar.
Each such waiver or consent shall be effective only in the
specific instance and for the purpose for which it was given, and
shall not constitute a continuing waiver or consent. The
invalidity or unenforceability, in whole or in part, of any
provision, term or condition hereof shall not affect the validity
and enforceability of the remainder of such provision, term and
condition or any other provision, term or condition. This
Agreement may not be amended except by written agreement of AII
and Ziplink expressly referring herein.
12.3 RELATIONSHIP OF THE PARTIES: The parties hereto are independent
contractors. Nothing contained herein or done in pursuance of this
Agreement shall constitute either party the agent of the other
party for any purpose or in any sense whatsoever, or constitute
the parties as partners or joint venturers.
12.4 ASSIGNMENT: This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and
assigns. Neither party may assign any of its rights, obligations
or privileges (by operation of law or otherwise) hereunder without
the prior written consent of the other party, which shall not be
unreasonably withheld; provided, that AII shall have the right to
assign its rights, obligations and privileges hereunder to an
acquirer of all or substantially all of its business or assets
without obtaining any consent from Ziplink to such assignment.
12.5 NOTICES: Any notice required or permitted to be given by either
party under this Agreement shall be in writing and shall be
personally delivered or sent by certified or registered letter, or
by telecopy confirmed by registered or certified letter, to the
other party at its address set forth below, or such new address as
may from time to time be supplied by the parties hereto in
accordance with the procedures set forth in this Section 12.5 If
mailed, notices will be deemed effective three (3) working days
after deposit, postage prepaid, in the mail.
If to Ziplink: Ziplink, Inc.
000 Xxxxxxxxxx Xxxxxx
Tower One, Fifth Floor
Lowell, MA 01851
Attn.: Chief Financial Officer
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If to AII: Alcatel Internetworking, Inc.
00000 Xxxx Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attn.: Legal Department
12.6 FORCE MAJEURE. Notwithstanding anything else in this Agreement,
and except for the obligation to pay money, no default, delay or
failure to perform on the part of either party shall be considered
a breach of this Agreement if such default, delay or failure to
perform is shown to be due to causes beyond the reasonable control
of the party charged with a default, including, but not limited
to, causes such as strikes, lockouts or other labor disputes,
riots, civil disturbances, actions or inactions of governmental
authorities, epidemics, war, embargoes, severe weather, fire,
earthquakes, acts of God or the public enemy, nuclear disasters,
or default of a common carrier; provided, that for the duration of
such force majeure the party charged with such default must
continue to use all reasonable efforts to overcome such force
majeure.
12.7 ENTIRE AGREEMENT. The terms and conditions herein contained
constitute the entire agreement between the parties and supersede
all previous agreements and understandings, whether oral or
written, between the parties hereto with respect to the subject
matter hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed
by duly authorized officers or representatives as of the date first above
written.
ALCATEL INTERNETWORKING, INC. ZIPLINK, INC.
("AII") ("ZIPLINK" or "YOU")
Print Name: /s/ Xxxxxx Xxxxx Print Name: /s/ Xxxx X. Xxxxxxxxxx
----------------------- -----------------------
Title: CHIEF FINANCIAL OFFICER Title: CHIEF FINANCIAL OFFICER
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EXHIBIT A
PRODUCTS AND PRICES
AII agrees to provide Ziplink a discount of * (the "Discount") from AII's then
current list price for all access concentration hardware. The Discount shall be
in effect for twelve (12) months after the Effective Date of this Agreement;
prior to the expiration of such twelve (12) month period, the parties will meet
to agree upon future prices.
*Any "SCM-90" with channelized T3 port "modules purchased prior to
general availability of "SCM-120 with channelized T3port" module will
be upgraded by AII to SCM-120 for the cost differential taking into
account the agreed discount rate.
** Any "Hybrid Access Server 336 channels" module without stac
compression which is purchased prior to general availability of 336
channel module with stac compression will be upgraded by AII to support
stac compression at no charge to Ziplink.
*** AII shall provide a qualified engineer to Ziplink at no cost to
Ziplink at Ziplink's office to assure that the purchased SMC software
is operational upon installation.
PERFORMANCE MATTERS
1. AII's equipment is designed to work substantially in accordance
with AII's specifications indicated in the supplied product and
technical documentation.
2. Joint AII/Ziplink meetings will be held on a regular,
pre-determined basis at Ziplink's Lowell facility to track
deployment, installation, and project progress throughout the
course of the implementation. AII's account team, in addition to
AII's support engineers, will participate through either on-site
presence or via teleconference. In this manner, the parties should
be able to track issues, coordinate critical events, provide
technical assistance, etc.
3. AII will work with Ziplink's team to identify a performance index
that can be routinely monitored as an assessment of network health
availability. Ziplink will monitor and track this parameter and,
in the event that the index falls below an agreed upon level, AII
will initiate a support escalation process as indicated in Exhibit
D.
4. AII will work with the Ziplink's team to derive a mutually
acceptable set of network error conditions to assist in the
diagnosis, trouble-shooting, and escalation for the AII support
team to meet these performance guarantees.
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EXHIBIT B
ENGINEERING ENHANCEMENTS
1. AII will have available to Ziplink the following Enhancements:
User interface DS-0 activity display with DS-0 global counter.
Domain-based forwarding enhancements - option to strip or not strip
domain name with same call policy but different DBR entries & option to
overwrite existing domain name using separate call policy.
RADIUS secret separate for authentication and accounting server.
2. AII will have available the following Product Enhancements by December
31, 1999:
Provide command line PPP user name lookup query to find specific
session information.
Provide command line global lookup of all detected connections showing
DNIS, CallerID, and connected ports including all connections prior to
successful PPP negotiation.
Provide capability to view PPP session information and associated modem
port diagnostics/statistics together.
Provide ability to query system for NASID and Class RADIUS attributes
with SNMP.
Provide ISDN dial-out backup services.
3. AII will make reasonable efforts to make available Product Enhancements
To Implement by June 30, 2000.
Provide unique session ID with each syslog message so that all related
connection records from beginning of DS-0 activity to call completion
can be readily greped from syslog file.
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EXHIBIT C
TRAINING
AII shall conduct on a one-time basis a 3-day training session at Ziplink's
Lowell facility for ten (10) of Ziplink's engineers. The options and elements of
this program are detailed below.
1. AII will offer a Multiservice Access Concentrator Technical
Training Course in Milpitas.
2. On site training at a cost of thirty-five hundred dollars ($3500)
per day.
The training session will be substantially as follows:
OVERVIEW:
This course provides a complete overview in the use and configuration of AAT
multiservice access concentrator family. Topics include both narrowband dial and
broadband remote access server configurations.
PREREQUISITES:
An understanding of telephonic transmission schemes, basic networking knowledge,
including Ethernet, Frame Relay, and ATM, as well as IP and IPX routing
principles.
WHAT YOU WILL LEARN:
Typical business models and configurations for AAT products
Hardware and software overview, including installation concepts
Configuration for both narrowband and broadband RAS applications, including
analog and ISDN dial, dedicated Frame Relay aggregation and concentration,
PPP over ATM, and PPP over Ethernet
Troubleshooting techniques
Using the Command Line Interpreter and the AssuredVision graphical user
interface
IN THE LABORATORY SESSION, YOU WILL:
Install various hardware components into the chassis
Log onto an Assured Access technology switch
Create IP addresses and IP pools
Create Call Policy databases and determine RADIUS capabilities
Configure packet and call routing based on different service models
Identify typical problems and their solutions
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EXHIBIT D
SUPPORT
The Service described below ("Support") is included with each Product for the
first year following shipment. The cost for each additional year of Support
for years two and three is * of the list price for the
applicable Product at the time of sale, less the * discount off the
list price. Support may only purchased in Year 3 for Products for which
Support was purchased in Year 2. Support for years 2 and 3 must be ordered in
writing prior to the first day of the applicable twelve month period, i.e.
Year 2 and 3. Additional service requirements will be subject to mutual
agreement of the parties. However, pricing for Support shall be subject to
change at any time twenty-four (24) months after the Effective Date of this
Agreement. Support will only be performed in the United States. Payment for
Support shall be due quarterly in advance. AII may suspend all Support at any
time that payment for any Support is more than thirty (30) days overdue.
Subject to Section 12.6, AII agrees after it determines that a hardware
failure in the United States which is covered by Support exists, it will
provide on site support within eight (8) hours of such determination.
ADVANCE REPLACEMENTS
The principal period of maintenance for the parts delivery of this service
description is Monday through Friday from 7am to 5pm EST, excluding AII
holidays. AII will ship, at its expense, a replacement hardware component to the
site location designated by Ziplink for arrival on the business day following
completion of AII diagnosis, provided that diagnosis is completed prior to 5pm
EST. If diagnosis is completed after 5pm EST, then AII shall ship the
replacement hardware component for arrival on the second business day. AII will
incur the shipping expenses for returning the failed component to complete the
replacement process. The failed component becomes the property of AII. If AII
does not receive the failed component within thirty (30) days of its failure,
then AII shall invoice and Ziplink shall pay the full purchase price of the
replaced component.
7 X 24 TECHNICAL RESPONSE CENTER (TRC)
AII provides SUPPORTPLUS customers with access to our technical response centers
seven (7) days a week, twenty-four (24) hours a day for product-related
questions or problems. SUPPORTPLUS customers shall have priority over callers
requesting technical support under standard warranty. Total hold time before
speaking directly to an AII support engineer averages less than one (1) minute.
AII has technical response centers in Boston, Los Angeles, Amsterdam and
Singapore.
7 X 24 REMOTE DIAGNOSTICS
SUPPORTPLUS customers will receive TELNET and dial-in assistance from certified
AII support engineers. Remote access allows our technical experts to perform
"in-box" diagnostics seven (7) days a week, twenty-four (24) hours a day.
Real-time access to
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configuration parameters, hardware and software revision levels, and port
statistics will allow AII to quickly resolve technical issues.
WEB SERVICES
Your organization's contract number and password(s) will allow you to access the
AII customer service web page. Web services include: access to your support
cases, return material authorizations, on-line problem escalation, known problem
reports, release notes, troubleshooting guides and training registration.
SOFTWARE UPDATES
SUPPORTPLUS customers will receive software notifications via electronic mail
(e-mail). This program provides software updates that include AII monthly
maintenance releases, patch releases, and enhancements. This does not include
Internet Protocol Firewall (IPF), Network Management Software (NMS) or OmniMSS
Software.
If AII is unable to complete its diagnosis via telephone, AII may, at its sole
discretion, dispatch a service engineer to the Ziplink's site in order to
facilitate an AII diagnosis. There shall be no additional charge to Ziplink for
such dispatch unless AII has dispatched the technician at the request of the
Ziplink in order to verify or confirm a diagnosis by AII that the reported
problem is caused by third party equipment.
Ziplink is responsible for ensuring that the Products are used and maintained in
accordance with the applicable Product documentation. The Products may not be
altered or modified unless performed or authorized by AII. AII shall have no
liability or obligations hereunder for failure of the Products to conform to
published specifications resulting from the combination of the Products with any
third party hardware or software not authorized in AII published documentation
or when caused by Ziplink's inability to use the products if they are operating
substantially in accordance with published specifications.
At any site where Ziplink is purchasing this Service for a particular Product,
Ziplink MUST cover all "like" Products at such site under this Service. (By way
of example, all Omni products are "like" Products. Therefore, an Ethernet Omni
is a "like" Product to a Token Ring Omni, but not a "like" Product to an
Ethernet Omni Stack.) Ziplink may not split the coverage of a Systems of "like"
Products at any one site between this Service Description and Service
Descriptions of lesser coverage or no coverage at all.
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SUPPORTTOTAL SERVICE DESCRIPTION
The cost for this service is * of the list price for the equipment at the
time of sale, less the * discount for the first year (warranty delta)
and * of the list price for the Product at the time of sale, less
the * discount off list price for each of year 2 and 3. Service may only
be purchase in Year 3 for Products for which service was purchased in Year 2.
Additional service requirements will be subject to mutual agreement of the
parties.
Advance Replacements
AII'S SUPPORTTOTAL service is an annual maintenance program in which AII will
dispatch a certified service technician to arrive on site, with the hardware
replacement, within four (4) hours of diagnosis. The principal period of
maintenance for the parts delivery of this service description is seven (7) days
a week, twenty-four (24) hours a day. The site must be within sixty (60) miles
from the nearest parts depot of AII or any of its authorized representatives.
AII's certified service technician will de-install the failed hardware and
install the replacement hardware. The certified service technician will return
the failed hardware, which becomes the property of AII, to complete the
replacement process.
7 X 24 TECHNICAL RESPONSE CENTER (TRC)
AII provides SUPPORTTOTAL customers with access to our technical response
centers for product-related questions or problems. SUPPORTTOTAL customers shall
have priority over callers requesting technical support under standard warranty.
Total hold time before speaking directly to an AII support engineer typically
averages less than one (1) minute. AII has technical response centers in Boston,
Los Angeles, Amsterdam and Singapore.
7 X 24 REMOTE DIAGNOSTICS
SUPPORTTOTAL customers will receive TELNET and dial-in assistance from certified
AII support engineers. Remote access allows one of our technical experts to
perform "in-box" diagnostics seven (7) days a week, twenty-four (24) hours a
day. Real-time access to configuration parameters, hardware and software
revision levels, and port statistics will allow AII to quickly resolve technical
issues.
Web Services
Your organization's contract number and password(s) will allow you to access the
AII customer service web page. Web services include: access to your support
cases, return material authorizations, on-line problem escalation, known problem
reports, release notes, troubleshooting guides and training registration.
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Software Updates
SUPPORTTOTAL customers will receive software notifications via electronic mail
(e-mail). This program provides software updates that include AII monthly
maintenance releases, patch releases, and enhancements. This does not include
Internet Protocol Firewall (IPF), Network Management Software (NMS) or OmniMSS
Software.
If AII is unable to complete its diagnosis via telephone, AII may, at its sole
discretion, dispatch a service engineer to the Ziplink's site in order to
facilitate an AII diagnosis. There shall be no additional charge to Ziplink for
such dispatch unless AII has dispatched the technician at the request of the
Ziplink in order to verify or confirm a diagnosis by AII that the reported
problem is caused by third party equipment.
Ziplink is responsible for ensuring that the Products are used and maintained in
accordance with the applicable Product documentation. The Products may not be
altered or modified unless performed or authorized by AII. AII shall have no
liability or obligations hereunder for failure of the Products to conform to
published specifications resulting from the combination of the Products with any
third party hardware or software not authorized in AII published documentation
or when caused by Ziplink's inability to use the products if they are operating
substantially in accordance with published specifications.
At any site where Ziplink is purchasing this Service for a particular Product,
Ziplink must cover all "like" Products at such site under this Service. (By way
of example, all Omni products are "like" Products. Therefore, an Ethernet Omni
is a "like" Product to a Token Ring Omni, but not a "like" Product to an
Ethernet Omni Stack.) Ziplink may not split the coverage of a Systems of "like"
Products at any one site between this Service Description and Service
Descriptions of lesser coverage.
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SERVICE CALL ESCALATION GUIDELINES
PROBLEM PRIORITIES DEFINITIONS:
Priority One
Company (Ziplink's) production network is down causing critical impact to
business operations if service is not restored quickly. No work around is
available. Company and Ziplink are willing to commit available resources around
the clock to resolve the situation.
Priority Two
Company (Ziplink's) production network is severely degraded impacting
significant aspects of business operations. No work around is available. Company
and Ziplink are willing to commit available resources during business hours to
resolve the problem.
Priority Three
Company (Ziplink's) Network performance is degraded. Network functionality is
noticeably impaired but most business operations continue.
Priority Four
Company (Ziplink's) requires information or assistance on Product capabilities,
installation, or configuration.
Technical Action Plan "Ownership" Escalation Guidelines
ELAPSED TIME PRIORITY ONE PRIORITY TWO PRIORITY THREE PRIORITY FOUR
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1 Hour Customer Service Customer Service Customer Service Customer Service
4 Hours Customer Service
Manager
8 Hours Engineering Customer Service
Reviews Manager
12 Hours Engineering Engineering
"Owns" Reviews
24 Hours Engineering Engineering Customer Service
Management "Owns" Manager
48 Hours Engineering
Management
