EXHIBIT 10.3
PURCHASE AND LICENSE AGREEMENT
BETWEEN
SYCAMORE NETWORKS, INC.
AND
XXXXXXXX COMMUNICATIONS, INC.
Exhibit(s):
Exhibit A: Additional Terms and Conditions
Exhibit B: Discount Schedule
Exhibit C: Insurance Terms
Exhibit D: Year 2000 Statement
Exhibit E: Escrow Agreement
Exhibit F: Maintenance
CONFIDENTIAL AND PROPRIETARY INFORMATION OF
-------------------------------------------
SYCAMORE NETWORKS, INC.
-----------------------
PURCHASE AND LICENSE AGREEMENT
------------------------------
THIS AGREEMENT is made effective as of the date written below by and between
Sycamore Networks, Inc. ("Sycamore"), a Delaware corporation having a principal
place of business at 0 Xxxxxxxx Xxxxx, Xxxxx 000 Xxxxxxxxx, XX 00000, and
Xxxxxxxx Communications, Inc. ("Xxxxxxxx") a Delaware corporation having a
principal place of business at Xxx Xxxxxxxx Xxxxxx, Xxxxx, XX 00000.
Recitals of Fact
1. Sycamore sells and licenses various hardware and software products (the
"Products").
2. Xxxxxxxx desires to purchase and license Products from Sycamore during the
term of this Agreement for its internal use only.
NOW, THEREFORE, in consideration of their mutual promises and obligations
contained in this Agreement, the parties agree as follows:
1. Term
----
This Agreement shall become effective as of the date written below and
shall continue for a period of three (3) years, after which it shall renew
automatically for successive twelve (12) month additional terms, unless
otherwise terminated pursuant to the terms hereof.
2. Purchase
--------
2.1 During the term of this Agreement, and upon the terms and conditions set
forth herein, Sycamore shall sell to Xxxxxxxx Communications, Inc., its
parent Company and any parent's of its parent Company as well as any of the
parents majority owned subsidiaries (hereinafter Xxxxxxxx), and Xxxxxxxx
may from time to time purchase from Sycamore Products at pricing listed in
Sycamore's then-current price list applicable to each such Product, as
amended from time to time, less any applicable discounts. Any Xxxxxxxx'
parent or subsidiary, may order Products under this Agreement so long as
such an order references this Agreement and includes a statement whereby
the ordering entity agrees to be bound by the terms and conditions
contained herein. The parties hereby agree that additional terms and
conditions of the Xxxxxxxx purchase of Sycamore's Transponder Product shall
be those set forth in Exhibit A.
2.2 Shipments of the Products shall be made only against written purchase
orders issued by Xxxxxxxx. At a minimum, each purchase order shall specify
the following items:
a. A complete list of the Products covered by the purchase order,
specifying the quantity, model number and description of each;
b. The price of each Product as set forth on the attached price list and
subject to the terms of Section 6, below, and any applicable
discounts, and any additional charges and costs;
2
CONFIDENTIAL AND PROPRIETARY INFORMATION OF
-------------------------------------------
SYCAMORE NETWORKS, INC.
----------------------
c. The billing address, the destination to which the Products will be
delivered, and the requested delivery date; and
d. The signature of Xxxxxxxx employee or agent who possesses the
authority to place such an order.
Sycamore shall not be obligated to accept any order in which Xxxxxxxx fails
to include the items in a through d, above. However if such order is
accepted, such failure shall not cause Xxxxxxxx not to receive the
applicable discount for such order.
2.3 Sycamore shall acknowledge Xxxxxxxx purchase orders in writing within five
(5) days after receipt. Sycamore's acknowledgment shall note any exceptions
regarding matters such as the items ordered, configuration, and Product
pricing. Sycamore shall also confirm the requested delivery date or offer
an alternative delivery date. In no event shall any order be binding on
Sycamore's until Xxxxxxxx order and Sycamore's acknowledgment are in
agreement as to the items ordered, configuration, pricing, delivery dates,
and all other material terms.
2.4 No purchase order, acknowledgment form, or other ordering document or
communication from either party shall vary the terms and conditions on this
Agreement unless both parties expressly agree in writing. In the event of
any conflict between the terms and conditions of this Agreement and those
of any purchase order acknowledgment form or other ordering document or
communication, the terms and conditions of this Agreement shall prevail.
3. Delivery
--------
3.1 All deliveries of the Products purchased pursuant to this Agreement will be
made FOB Sycamore's facility. All Products will be packaged for shipment in
accordance with standard industry practices. All transportation, shipping,
and insurance costs shall be shipped in accordance with Xxxxxxxx'
instructions and shall be charged to Xxxxxxxx' account. If Xxxxxxxx does
not notify Sycamore of a preferred freight forwarder, Sycamore shall select
a freight forwarder to be used for shipment of the Products to Xxxxxxxx.
Risk of loss shall pass to Xxxxxxxx at the point of delivery. However in
the event of any shipping damage, Sycamore shall be responsible for placing
and administering any claims with the freight forwarder or carrier
regarding any damages incurred during shipping. In addition, replacement
product for Product damaged in transit shall be provided by Sycamore on a
non-discriminatory first priority basis.
3.2 Title (excluding title to software Products ) shall pass to Xxxxxxxx at
the point of delivery to the common carrier at Sycamore's facility.
3.3 Sycamore shall use reasonable efforts to ship the Products on the shipment
date requested in Xxxxxxxx purchase order. Sycamore shall not be liable
for any loss, expense or damage incurred by Xxxxxxxx if Sycamore fails to
meet the specified delivery date. Sycamore reserves the right to allocate
shipment of Products among its purchasers and to make partial shipments.
Notwithstanding the foregoing, partial shipments shall only be made with
previous written
3
CONFIDENTIAL AND PROPRIETARY INFORMATION OF
-------------------------------------------
SYCAMORE NETWORKS, INC.
----------------------
Confidential Material omitted and filed separately with the Securities and
Exchange Commission .
Asterisks denote omissions.
approval by Xxxxxxxx. If shipment is delayed more than [**] days from the
mutually agreed upon shipment date due to Sycamore's delay only, Xxxxxxxx
may cancel an order upon prior written notice to Sycamore. For the purposes
of computing Xxxxxxxx discount level only, shipments cancelled pursuant to
the previous sentence of this sub-paragraph 3.3, shall be deemed to have
shipped.
3.4 All shipments with destinations outside of the US shall be subject to
Sycamore's determination that such shipments are in compliance with all
applicable export and import regulations. For shipment other than in the
US, Xxxxxxxx will be solely responsible for (i) obtaining any license that
may be required to import the Products into its country (ii) clearing the
Products through local customs upon their arrival to Xxxxxxxx country and
(iii) paying all customs duties, taxes and other charges assessed on such
importation's in such country. In no event shall Sycamore delay in
shipping or refusal to ship due to export or import issues be deemed a
default hereunder.
4. Rescheduling and Cancellation of Orders
---------------------------------------
4.1 Upon written notice to Sycamore provided at least [**] days' prior to the
scheduled ship date, Xxxxxxxx may reschedule the delivery of any Products
scheduled for shipment by up to [**] days at no charge. Orders may,
however, be rescheduled only once, except that on an emergency basis,
Xxxxxxxx may reschedule more than once so long as any subsequent
rescheduled shipping date is not more than [**] days form the original
scheduled shipment date. Acceptance of Xxxxxxxx' request to reschedule any
delivery with less than [**] days' prior written notice to Sycamore shall
be at the sole discretion of Sycamore.
4.2 Upon at least [**] days' written notice to Sycamore prior to the
originally-scheduled shipment date of Products under this Agreement,
Xxxxxxxx may cancel any shipment of the Products without charge. The
following cancellation charges shall apply to any cancellations made by
Xxxxxxxx less than [**] days prior to shipment as liquidated damages and
not as a penalty based on the number of days prior to the scheduled
delivery that written notice of cancellation is received by Sycamore:
Days Notice Charge
----------- ------
(% of canceled order)
Greater than [**] days [**]%
[**] days [**]%
[**] days [**]%
4
CONFIDENTIAL AND PROPRIETARY INFORMATION OF
-------------------------------------------
SYCAMORE NETWORKS, INC.
----------------------
Confidential Material omitted and filed separately with the Securities and
Exchange Commission .
Asterisks denote omissions.
5. Prices
------
5.1 During the term of this Agreement, Xxxxxxxx shall be entitled to purchase
the Products at the prices set forth in Sycamore then-current Price List,
an example of which is attached hereto, applicable to each particular
Product, less any applicable discounts based on annual purchase volume
listed in Exhibit B. All prices set forth in Sycamore Price List are
---------
exclusive of any applicable value added, excise, sales, use or consumption
taxes, customs duties or other governmental charges except for any taxes
imposed upon the income of Sycamore or upon its employment base.
5.2 (a) In the event of a Sycamore price increase, all Products ordered on or
after the effective date of such price increase shall be filled at the new
higher price. Sycamore will provide Xxxxxxxx with written notice of any
price increase [**] days prior to the effective date of such price
increase. Sycamore shall, however, honor all written and accepted Xxxxxxxx
purchase orders for the Products received by Sycamore prior to the price
increase effective date at the prices in effect as of the date the order
was received, but only if Xxxxxxxx requests Sycamore to ship the Products
within [**] days after the effective date of the price increase.
(b) In the event of an Sycamore price decrease, all products ordered on or
after the effective date of such price decrease shall be filled at the new
lower price.
6. Payment
-------
6.1 Sycamore shall invoice Xxxxxxxx upon shipment of the Products. Xxxxxxxx
shall pay all invoices in US dollars within [**] days of receipt. All such
invoices will be payable by check or wire transfer, to the following
accounts, in United States dollars:
For Wire Transfers:
-------------------------------------------------------
-------------------------------------------------------
In the event that Xxxxxxxx fails to make any payment when due, Sycamore may
withhold further shipments until such time as the past-due payment is made,
and may require that subsequent orders be paid in full prior to shipment
6.2 Sycamore reserves the right to impose a late payment charge of one and one-
half percent (1 1/2%) per month, or the maximum allowed by law, whichever
is less for each month that any payment is late, including the month in
which the payment was due and not paid.
5
CONFIDENTIAL AND PROPRIETARY INFORMATION OF
-------------------------------------------
SYCAMORE NETWORKS, INC.
----------------------
Confidential Material omitted and filed separately with the Securities and
Exchange Commission .
Asterisks denote omissions.
6.3 Xxxxxxxx shall pay all municipal, state, county or federal taxes including,
but not limited to, sales, use, excise, value added or other taxes which
may be levied upon the sale, license or transfer, ownership or installation
of the Products except for any taxes imposed upon the income of Sycamore or
upon its employment base.
7. Changes / Availability of Products
----------------------------------
7.1 Sycamore shall promptly inform Xxxxxxxx as soon as is reasonably
practicable after Sycamore schedules discontinuance of production or
modification of any hardware Product. Sycamore, in its sole discretion,
may modify its price list at any time. Sycamore agrees to offer services
for any discontinued product for a period of [**] from the last date of
shipment of the discontinued product. Sycamore also agrees to offer a one-
time buy-out of spare parts for any discontinued product for a period of
[**] days following the announcement of any discontinuance.
7.2 At any time prior to delivery, Sycamore may make changes in the Products in
whole or in part to be supplied to the Xxxxxxxx hereunder to include
electrical or mechanical design refinements that Sycamore deems
appropriate, or as required by law or concerns of safety, without
obligation to modify or change any Product previously delivered or to
supply Products in accordance with earlier specifications.
8. License of Software Products and Firmware
-----------------------------------------
8.1 Subject to the provisions of this Section, Sycamore grants to Xxxxxxxx a
nonexclusive, nontransferable, (except for transfers in accordance with the
terms herein and in conjunction with the transfer of the Products with
which the software is first delivered), license to use the object code form
of the software Products solely for Xxxxxxxx internal business purposes
(including, without limitation, in conjunction with Xxxxxxxx' provision of
services to its customers) on or in conjunction with the Product with which
it was originally delivered.
8.2 Subject only to the licenses specifically granted herein, Sycamore is the
sole owner of all rights, title and interest, including all copyrights,
patents, trademarks, industrial designs, trade names, trade secrets and
other intellectual property rights in the software Products. The software
Products are copyrighted and Xxxxxxxx is only authorized to reproduce one
copy of the software Products solely for back-up purposes. Xxxxxxxx is
hereby prohibited from otherwise copying or translating, modifying or
adapting the software Products or, incorporating in whole or any part in
any other product or creating derivative works based on all or any part of
the Products. Xxxxxxxx is not authorized to license others to reproduce
any copies of the software Products, except as expressly provided in this
Agreement. Xxxxxxxx agrees to ensure that all copyright, trademark and
other proprietary notices of Sycamore affixed to or displayed on the
software Products will not be removed or modified. Xxxxxxxx shall not
decompile, disassemble or reverse engineer, the software Products or any
component thereof, except as may be permitted by applicable law in which
case Xxxxxxxx must notify Sycamore in writing and Sycamore may provide
review and assistance.
6
CONFIDENTIAL AND PROPRIETARY INFORMATION OF
-------------------------------------------
SYCAMORE NETWORKS, INC.
----------------------
Confidential Material omitted and filed separately with the Securities and
Exchange Commission.
Asterisks denote omissions.
8.3 The rights and licenses granted to Xxxxxxxx with respect to any software
Product furnished by Sycamore may not be sold, licensed, sublicensed,
rented, assigned or otherwise transferred to another party without the
prior written consent of Sycamore except Xxxxxxxx may assign to an entity
controlling, controlled by or under common control of Xxxxxxxx. Xxxxxxxx
shall provide written notice of such assignment within a reasonable time
thereafter.
8.4 Upon the effective date of a termination of this Agreement by Sycamore for
Xxxxxxxx breach, the license granted to Xxxxxxxx under this Agreement shall
terminate and Xxxxxxxx shall immediately discontinue use of the software
and all copies and documentation thereof and return all copies and
documentation to Sycamore. A termination of this Agreement by Xxxxxxxx for
Sycamore's breach shall not terminate Xxxxxxxx license hereunder.
8.5 US Government Restricted Rights. Notice - Distribution and use of products
including computer programs and any related documentation and derivative
works thereof, to and by the United States Government, are subject to the
Restricted Rights provisions of FAR 52.227-19, paragraph (c)(2) as
applicable, except for purchases by agencies of the Department of Defense
(DOD). If the Software is acquired under the terms of a Department of
Defense or civilian agency contract, the Software is "commercial item" as
that term is defined at 48 C.F.R. 2.101 (Oct. 1995), consisting of
"commercial computer software" and "commercial computer software
documentation" as such terms are used in 48 C.F.R. 12.212 of the Federal
Acquisition Regulations and its successors and 48 C.F.R. 227.7202-1 through
227.7202-4 (June 1995) of the DoD FAR Supplement and its successors. All
U.S. Government end users acquire the Software with only those rights set
forth in this Agreement. Manufacturer is Sycamore Networks, 0 Xxxxxxxx
Xxxxx, Xxxxx 000, Xxxxxxxxx, XX 00000. Unpublished - rights reserved under
the copyright laws of the United States.
8.6 Xxxxxxxx may transfer the rights to use the software in conjunction with
the Products on which the software is first supplied, by means of an
enforceable sub-license having terms with regard to Xxxxxxxx' sub-
licensee's use which are no less restrictive than those as set forth in
this paragraph 8, except that any such sub-licensee may not subsequently
transfer such sub-license rights without Sycamore's written assent.
9. Support
-------
Xxxxxxxx may elect to purchase maintenance or support services from
Sycamore in connection with the Products pursuant to Sycamore's standard
terms and conditions and then-current programs. The provision of all such
maintenance and support services shall be governed by the applicable
agreement entered into between the parties. (See Exhibit F for Maintenance
options)
10. Limited Warranty
----------------
10.1 Product Warranty: Product hardware and media are warranted to be free from
defects in material and workmanship during the Warranty Period (as defined
below). Product hardware and software is warranted to conform substantially
to Sycamore's then current (as of the date of Sycamore's product shipment)
published user documentation during the Warranty Period. The Warranty
Period is [**] for Product hardware, Product software, and media. Product
support beyond these periods may be available at additional cost under a
Maintenance Service Agreement. The warranty shall commence upon delivery.
7
CONFIDENTIAL AND PROPRIETARY INFORMATION OF
-------------------------------------------
SYCAMORE NETWORKS, INC.
----------------------
10.2 Warranty Claims: Sycamore shall incur no liability under this warranty if
the end user fails to provide Sycamore with notice of the alleged defect
during the applicable Warranty Period. After receiving such notice,
Sycamore's Technical Assistance Center ("TAC") will notify the purchaser
of its designation of one of the following problem resolution methods:
Return to Factory: The allegedly defective goods must be returned to
Sycamore within ten days of receipt of the replacement product and in
accordance with Sycamore's Return to Factory repair procedures.
Other: TAC will use best efforts to deliver non-priority services to
repair, correct or workaround the problem by means of telephone
support, including patches, corrective software releases or other
means reasonably determined by Sycamore.
Sycamore shall incur no liability under this warranty if Sycamore's tests
disclose that the alleged defect is due to causes not within Sycamore's
reasonable control, including alteration or abuse of the goods. Under the
Return to Factory alternative, if a Product is determined not to be
defective or to have a defect due to causes not within Sycamore's
reasonable control, Sycamore's then current repair price as listed in the
price list will apply.
10.3 Sycamore warrants and represents that the software shall record, store,
process, and present calendar dates falling on or after January 1, 2000,
in the same manner, and with the same functionality, as such Products
record, store, process and present calendar dates falling on or before
December 31, 1999. Sycamore further warrants that in all other respects
such software shall not lose functionality or degrade in performance as a
consequence of such software operating in a date later than December 31,
1999. Sycamore shall also consult with Xxxxxxxx to (i) ensure that such
software will lose no functionality with respect to the introduction of
records containing dates falling on or after January 1, 2000, and (ii)
under terms and prices mutually agreed upon, to use commercially
reasonable efforts to ensure that such software will be interoperable with
other software used by Xxxxxxxx which will interact directly with the
Sycamore software in the course of processing data. Notwithstanding the
foregoing, Sycamore shall have no responsibility to the extent any loss of
functionality or degradation or failure to record, store, process or
present calendar dates falling on or after January 1, 2000 is caused by
the failure to so perform of any software of systems other than Sycamore's
used by Xxxxxxxx or any other supplier of Xxxxxxxx. Sycamore will perform
the above warranty obligations at no charge to Xxxxxxxx.
10.4. Sycamore warrants, except as stated in Sycamore's published
specifications, or as otherwise agreed, that any software provided to
Xxxxxxxx by Sycamore shall, to Sycamore's knowledge as of the date of this
Agreement: (a) contain no hidden files; (b) not replicate, transmit, or
activate itself without control of a person operating computing equipment
on which it resides; (c) not alter, damage, or erase any data or computer
programs without control of a person operating the computing equipment on
which it resides; (d) contain no encrypted imbedded key unknown to
8
CONFIDENTIAL AND PROPRIETARY INFORMATION OF
-------------------------------------------
SYCAMORE NETWORKS, INC.
----------------------
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission.
Asterisks donate omissions.
Xxxxxxxx, node lock, time-out or other function, whether implemented by
electronic, mechanical or other means, which restricts or may restrict use
of access to any programs or data developed under this Agreement, based on
residency on a specific hardware configuration, frequency of duration of
use, or other limiting criteria.
10.5 Sycamore's Liability: Sycamore's liability for breach of warranty
hereunder, and end user's sole and exclusive remedy, shall be limited to
the express remedies set forth in this Sycamore's Product Warranty.
10.6 Disclaimer of Warranties: SYCAMORE MAKES NO OTHER WARRANTIES, EXPRESS,
IMPLIED OR STATUTORY, REGARDING PRODUCTS. ALL OTHER WARRANTIES AS TO THE
QUALITY, CONDITION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR
NONINFRINGEMENT ARE EXPRESSLY DISCLAIMED.
10.7 Limitation of Liability: NEITHER PARTY SHALL BE RESPONSIBLE FOR ANY
SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGE, INCLUDING, BUT NOT
LIMITED TO, LOSS OF PROFITS OR DAMAGES TO BUSINESS OR BUSINESS RELATIONS,
WHETHER OR NOT ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES THE
FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY
EXCLUSIVE REMEDIES.
10.8 Warranty Repair (Return to Factory): If TAC designates Return to Factory
as the appropriate problem resolution method, the following provisions
apply.
(a) During the first [**] days of the warranty period, Sycamore may at its
option provide an advance replacement of a defective Product. Sycamore
will repair or replace defective Product hardware covered under warranty
within[**] business days of receipt of the Product. The warranty period for
the replaced product shall be [**] days or the remainder of the warranty
period of the original unit, whichever is greater. Sycamore will ship
surface freight. Expedited freight is at end user's expense.
(b) The end user must return the defective Product to Sycamore within [**]
days of receipt of the replacement product. If the defective Product is not
returned within this time period, Sycamore will xxxx the end user for the
Product at list price, less Xxxxxxxx' discount, if applicable.
10.9 Out-of-Warranty Repair (Hardware): Sycamore will either repair or, at its
option, replace defective Product hardware not covered under warranty
within [**] working days of its receipt. Repair charges are available from
the Repair Facility upon request. The warranty on a serviced Product is
[**] days from date of shipment of the serviced unit. Out-of-warranty
repair charges are based upon the prices in effect at the time of return.
10.10 In the event that Sycamore, given full cooperation by Xxxxxxxx, is
unable, after repeated efforts over a period of no less than [**] days, to
correct significant and material non-conformances of
9
CONFIDENTIAL AND PROPRIETARY INFORMATION OF
-------------------------------------------
SYCAMORE NETWORKS, INC.
----------------------
the Products to the specification in effect as of the sale of the Product,
Sycamore agrees that after good faith negotiations to resolve the matter,
Xxxxxxxx may elect to deem such circumstance a failure of Sycamore's
obligation of tender of delivery of conforming Product and Xxxxxxxx may
revoke its purchase.
11. Intellectual Property Rights
----------------------------
Except as described in this Agreement, Sycamore does not grant and Xxxxxxxx
acknowledges that it shall have no right, license or interest in any of the
patents, copyrights, trademarks, or trade secrets owned, used or claimed
now by Sycamore. All applicable rights to such patents, copyrights,
trademarks, and trade secrets are and will remain the exclusive property of
Sycamore Subject to the rights expressly granted to Xxxxxxxx by this
Agreement, title to and ownership of the intellectual property rights
contained in the Products or any part of the Products or Sycamore's
confidential information shall remain Sycamore's property.
12. Patent and Copyright Indemnification
------------------------------------
12.1 Sycamore agrees to indemnify and hold Xxxxxxxx harmless from and against
all claims and judicial or governmental determinations that the Products as
delivered by Sycamore under this Agreement infringe or misappropriate any
United States patent rights, copyrights, trade secrets, or trademarks.
Sycamore shall assume the defense of any such claim regardless as to its
ultimate validity, of infringement or misappropriation brought against
Xxxxxxxx in the United States by counsel retained at Sycamore's own
expense, provided that Xxxxxxxx promptly notifies Sycamore in writing of
such claim or the commencement of any such suit, action, proceeding or
threat covered by this Section. Sycamore shall maintain sole and exclusive
control of the defense and/or settlement of any such claim and Xxxxxxxx
shall cooperate in the defense of such claim.
12.2 In the event that the use or sale of all or any portion of the Products is
enjoined, or, in Sycamore's judgment, may be enjoined, as a result of a
suit based on alleged infringement or misappropriation of the third party
intellectual property rights, Sycamore agrees to either: (i) procure for
Xxxxxxxx the right to continue to use the Product, or (ii) replace or
modify the infringing or misappropriating Product so that it becomes non-
infringing. In the event that the foregoing alternatives cannot be
reasonably accomplished by Sycamore, Sycamore shall direct Xxxxxxxx to
return the Product to Sycamore and upon receipt of the Product(s), Sycamore
shall reimburse Xxxxxxxx for the price originally paid by Xxxxxxxx. Upon
Sycamore's fulfillment of the alternatives set out in this Section and
Section 12.1, Sycamore shall be relieved of any further obligation or
liability to Xxxxxxxx as a result of any such infringement or
misappropriation.
12.3 Regardless of any other provisions of this Agreement, this Section shall
not apply (i) to any designs, specifications or modifications originating
with or requested by Xxxxxxxx, or (ii) to the combination of any Product
with other equipment, software or products not supplied by Sycamore if such
infringement or misappropriation would not have occurred but for such
combination, or (iii) Xxxxxxxx failure to install an update provided at no
additional charge, where the update would have avoided the infringement
claim.
10
CONFIDENTIAL AND PROPRIETARY INFORMATION OF
-------------------------------------------
SYCAMORE NETWORKS, INC.
----------------------
12.4 THIS SECTION 12 STATES SYCAMORE'S ENTIRE LIABILITY TO XXXXXXXX AND
XXXXXXXX' SOLE REMEDY FOR ANY INFRINGEMENT OR MISAPPROPRIATION OF ANY
PATENT RIGHTS, COPYRIGHTS, TRADE SECRETS, TRADEMARKS OR OTHER INTELLECTUAL
PROPERTY RIGHTS.
13. General Indemnity
-----------------
Each party agrees to indemnify and hold harmless the other party (including
their directors, officers, employees, agents, representatives, affiliates,
and subcontractors) from and against any claims, damages and liabilities,
including reasonable attorney's fees, asserted by any person or entity due
to personal injury (including death) or tangible property damage to the
extent resulting from any negligent act or omission of such party;
provided, however, that such party shall not be liable for that portion of
liabilities which are caused by the sole negligence of the other party.
14. Limitation of Liability
-----------------------
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL,
CONSEQUENTIAL, EXEMPLARY PUNITIVE DAMAGES OR LOST PROFITS, WHETHER
FORESEEABLE OR UNFORESEEABLE, OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT
LIMITATION, LOST PROFITS, LOSS OF GOODWILL, LOSS OR DAMAGED DATA OR
SOFTWARE (EXCEPT IN THE CASE OF SOFTWARE, AS STATED IN SYCAMORE'S WARRANTY
FOR SOFTWARE), LOSS OF USE OF THE PRODUCTS, DOWNTIME OR COSTS OF SUBSTITUTE
PRODUCTS OR EQUIPMENT) ARISING FROM THE SALE AND DELIVERY OF THE PRODUCTS
OR ANY OTHER ACT OF EITHER PARTY IN CONNECTION WITH THIS AGREEMENT, EVEN IF
SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NO
LIMITATION AS TO DAMAGES FOR PERSONAL INJURY (INCLUDING DEALTH) OR TANGIBLE
PROPERTY DAMAGE IS HEREBY INTENDED. SOME STATES DO NOT ALLOW THE EXCLUSION
OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES AND THE ABOVE
EXCLUSION OR LIMITATION MAY NOT APPLY.
15. Confidentiality
---------------
15.1 For purposes of this Agreement, "Confidential Information" shall mean all
information (i) identified in written or oral format by the disclosing
party as confidential, trade secret or proprietary information and, if
disclosed orally, summarized in written format within ten (10) days of
disclosure.
15.2 Notwithstanding the foregoing, "Confidential Information" shall not include
---
any information which the receiving party can show: (a) is now or
subsequently becomes legally and publicly available without breach of this
Agreement by the receiving party, (b) was rightfully in the possession of
the receiving party without any obligation of confidentiality prior to
receiving it from the
11
CONFIDENTIAL AND PROPRIETARY INFORMATION OF
-------------------------------------------
SYCAMORE NETWORKS, INC.
----------------------
disclosing party, (c) was rightfully obtained by the
receiving party from a source other than the disclosing party without any
obligation of confidentiality, (d) was developed by or for the receiving
party independently and without reference to any Confidential Information
and such independent development can be shown by documentary evidence, or
(e) is disclosed pursuant to an order of a court or governmental agency as
so required by such order, provided that the receiving party shall first
notify the disclosing party of such order and afford the disclosing party
the opportunity to seek a protective order relating to such disclosure.
15.3 Both Parties agree not to use such Confidential Information except in their
performance under this Agreement. In addition, both parties shall treat
and protect such information in the same manner as it treats its own
information of like character, but with not less than reasonable care.
Both parties agree to take appropriate measures by instruction and written
agreement prior to disclosure of Confidential Information to their
employees to prevent unauthorized use or disclosure. The obligations of
this Section with regard to Confidential Information shall continue for a
period of three (3) years after termination or expiration of this
Agreement, except that the period with respect to any Confidential
Information identified as a trade secret shall be perpetual. Confidential
Information must be returned by the receiving party upon termination or
expiration of this Agreement.
15.4 In the event of a breach of any of the foregoing provisions, both parties
agree that the harm suffered by the disclosing party would not be
compensable by monetary damages alone and, accordingly, that the disclosing
party shall, in addition to other available legal or equitable remedies, be
entitled to an injunction against such breach.
16. Termination
-----------
16.1 Either party may terminate this Agreement at any time, with or without
cause, upon ninety (90) days prior written notice to the other party.
16.2 If Xxxxxxxx is in breach of this Agreement, Sycamore shall give Xxxxxxxx
thirty (30) days' prior written notice to cure such breach. If such breach
has not been cured to Sycamore's satisfaction within such thirty (30) day
period, then this Agreement shall automatically terminate at the end of
said thirty (30) day period without further notice to Xxxxxxxx. If
Xxxxxxxx is in breach of the Section entitled License of Software Products
and Firmware, and fails to cure such breach within five (5) days of notice,
Sycamore shall have the right to immediately terminate this Agreement.
16.3 This Agreement may be terminated for cause by either party in the event
that the other party: (i) shall become insolvent; (ii) commits an act of
bankruptcy; (iii) seeks an arrangement or compromise with its creditors
under any statute or otherwise; (iv) is subject to a proceeding in
bankruptcy, receivership, liquidation or insolvency and same is not
dismissed within thirty (30) days; (v) makes an assignment for the benefit
of the creditors; (vi) admits in writing its inability to pay its debts as
they mature; or (vii) ceases to function as a going concern or to conduct
its operations in the normal course of business.
12
CONFIDENTIAL AND PROPRIETARY INFORMATION OF
-------------------------------------------
SYCAMORE NETWORKS, INC.
----------------------
16.4 If Xxxxxxxx defaults under this Agreement, and does not cure such default
within thirty (30) days of receipt of Sycamore's written notice, Sycamore
shall have the right to take any or all of the following actions: (i)
declare this Agreement to be in default and all amounts payable under this
Agreement shall become immediately due and payable; (ii) suspend delivery
to Xxxxxxxx until the default is cured by Xxxxxxxx; (iii) proceed by court
action to enforce performance and/or recover damages; and/or (iv) terminate
this Agreement. If Sycamore continues to make shipments after Xxxxxxxx
default, Sycamore's action shall not constitute a waiver of any rights or
remedies, or affect Sycamore's legal remedies under this Agreement.
If Sycamore defaults under this Agreement, and does not cure such default
within thirty (30) days of receipt of Xxxxxxxx' written notice, Xxxxxxxx
shall have the right to take any or all of the following actions: (i)
declare this Agreement to be in default and all amounts payable under this
Agreement shall become immediately due and payable for all products
delivered and services performed prior to such termination; (ii) proceed by
court action to enforce performance and/or recover damages; and/or (iii)
terminate this Agreement. If Xxxxxxxx continues to order Products after
Sycamore's default, Xxxxxxxx' action shall not constitute a waiver of any
rights or remedies, or affect Xxxxxxxx' legal remedies under this
Agreement.
16.5 The termination or expiration of this Agreement shall in no case relieve
either party from its obligation to pay to the other any sums accrued under
this Agreement prior to such termination or expiration.
17. General
-------
17.1 Entire Agreement; Amendment; Authorized Personnel. This Agreement
--------------------------------------------------
supersedes all prior and contemporaneous agreements, representations,
warranties and understandings and contains the entire agreement between the
parties. No amendment, modification, termination, or waiver of any
provision of this Agreement or consent to any departure from this Agreement
shall be effective unless it is in writing and signed by a duly authorized
representative of each party. No failure or delay on the part of either
party in exercising any right or remedy under this Agreement shall operate
as a waiver of such right or remedy.
17.2 Assignment. This Agreement shall be binding upon and inure to the benefit
-----------
of the parties and their respective successors and assigns, but neither
party shall have the right to assign or otherwise transfer its rights under
this Agreement without receiving the express prior written consent of the
other party, such consent not to be unreasonably withheld.. Either party
may, however, assign this Agreement in the event of a sale of all or
substantially all of such party's assets or stock to which assignment the
both parties consent to now. Notwithstanding the foregoing, Xxxxxxxx may
assign this Agreement to any entity controlling, controlled by, or under
common control with Xxxxxxxx. Xxxxxxxx shall notify Sycamore in writing of
such assignment within a reasonable time thereafter.
17.3 Notices. All notices, requests, demands, and other communications provided
--------
for under this Agreement shall be in writing and in English to be sent by
registered or certified mail, postage prepaid, to the receiving party at
its address as set forth in this Agreement or to any other address
13
CONFIDENTIAL AND PROPRIETARY INFORMATION OF
-------------------------------------------
SYCAMORE NETWORKS, INC.
----------------------
that the receiving party may have provided to the sending party in writing.
When feasible, any such notice, request, demand or other communication
shall also be transmitted by facsimile as follows or to such other
facsimile number as provided by the receiving party in writing:
. Xxxxxxxx Facsimile Number: (000) 000-0000
ATTN: Contract Administration.
. Sycamore's Facsimile Number: ___________________
ATTN: General Counsel
Any notice, request, demand or other communication sent by facsimile will
be deemed to have been received on the day it is sent. Any notice,
request, demand or other communication sent by registered or certified mail
will be deemed to have been received on the seventh (7th) business day
after its date of posting, unless it is sent by facsimile prior to such
seventh (7th) business day.
17.4 Governing Law. This Agreement and all acts and transactions pursuant hereto
--------------
and the rights and obligations of the parties hereto shall be governed,
construed and interpreted in accordance with the laws of the State of New
York. The United Nations Convention on Contracts for the International Sale
of Goods is specifically excluded from application to this Agreement.
17.5 (reserved).
17.6 Counterparts; Severability; and Headings. This Agreement may be executed
-----------------------------------------
in any number of counterparts, each of which when executed and delivered
shall be deemed to be an original and all of which taken together shall
constitute one and the same instrument. The provisions of this Agreement
are declared to be severable. In the event that any provision contained in
this Agreement shall be held to be unenforceable or invalid, the remaining
provisions shall be given full effect, and the parties agree to negotiate,
in good faith, a substitute valid provision which most nearly approximates
the parties' intent. The failure of either party in any one or more
instances to enforce any of the terms of this Agreement shall not be
construed as a waiver of future enforcement of that or any other term.
Headings in this Agreement are included for reference only and shall not
constitute a part of this Agreement for any other purpose.
17.7 Force Majeure. Neither party shall be held responsible for any delays or
--------------
failure in performance caused in whole or in part by fires, strikes,
floods, embargoes, labor disputes, delays or failures of subcontractors,
acts of sabotage, riots, accidents, delays of carriers, voluntary or
mandatory compliance with any governmental act, regulation or request, acts
of God or by public enemy, or any other causes beyond the party's
reasonable control. If such contingency shall occur, the defaulting party
may elect to either (a) suspend this Agreement for the duration of the
delaying cause, or (b) extend the duration of this Agreement by the length
of time the contingency endured, or the non-defaulting party may terminate
this Agreement upon giving ninety (90) days prior written notice.
14
CONFIDENTIAL AND PROPRIETARY INFORMATION OF
-------------------------------------------
SYCAMORE NETWORKS, INC.
----------------------
17.8 Survival. The parties agree that the provisions of the following
---------
Sections shall survive the expiration or earlier termination of this
Agreement for any reason: License of Software Products and Firmware,
Patent and Copyright Indemnification, Limitation of Liability, and
Confidentiality.
17.9 Training Services. Sycamore will provide at no charge to Xxxxxxxx, two (2)
one (1) - week sessions of on-site operational training of up to twenty
(20) students per class. Such classes will be provided on dates mutually
agreed to by the parties.
17.10 Escrow Program. Sycamore agrees to deposit Source Code, at Xxxxxxxx
expense, into Sycamore's Escrow Program, under an Escrow Agreement
mutually agreed to by the parties, upon William's notice that it wishes an
escrow deposit to be made. A sample of Sycamore's Escrow Agreement is
attached hereto as Exhibit D.
17.11 Insurance. Sycamore agrees to maintain, at all times during the term of
this Agreement, insurance in accordance with the terms and conditions of
Exhibit C hereto and incorporated herein by reference.
17.12 Prevailing Party. In any action or proceeding to enforce rights or
obligations under this Agreement, the prevailing party shall be entitled
to recover court costs and reasonable attorney's fees.
17.13 Time and Material Charges. If Sycamore invoices Xxxxxxxx time and
material charges for services provided, Sycamore agrees to provide
documentation to substantiate such charges.
17.14 Conflict of Interest. Sycamore will not pay any commissions, fees or
rebates to any employees of Xxxxxxxx, nor favor any employee of Xxxxxxxx
with gifts or entertainment. If Xxxxxxxx has reasonable cause to believe
that one of this provision has been violated, Sycamore agrees to cooperate
with Xxxxxxxx in its investigation.
15
CONFIDENTIAL AND PROPRIETARY INFORMATION OF
-------------------------------------------
SYCAMORE NETWORKS, INC.
----------------------
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission.
Asterisks denote omissions.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed in
duplicate by their duly authorized representatives as of the effective date
written below.
SYCAMORE NETWORKS, INC. XXXXXXXX COMMUNICATIONS, INC.
By: /s/ Xxxxxxxx By: /s/ Xxxxxx X. [illegible]
---------------------------- -------------------------------
Name: Xxxxxxxx Name:
---------------------------- -------------------------------
Title: Chairman Title:
---------------------------- -------------------------------
Effective Date: March 5, 1999 Date:
----------------- -------------------------------
16
CONFIDENTIAL AND PROPRIETARY INFORMATION OF
-------------------------------------------
SYCAMORE NETWORKS, INC.
----------------------
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission.
Asterisks denote omissions.
EXHIBIT A
to
SYCAMORE PURCHASE AND LICENSE AGREEMENT
ADDITIONAL TERMS AND CONDITIONS
--------------------------------
a) Xxxxxxxx represents and agrees that Sycamore's has been chosen as an
approved vendor to Xxxxxxxx to supply WDM Transponder Technology. The Term
(the "Term") of the Definitive Agreement shall be for three (3) years. In
year one of the Term, Xxxxxxxx agrees to a minimum purchase of [**], net
invoice value, in Sycamore product. This revenue commitment is based on
Xxxxxxxx Planning Engineering 1999 scheduled build out plans for
Transponder based systems in Spur locations.
b) Xxxxxxxx shall, have a nontransferable right to purchase shares of Sycamore
in Sycamore's initial public offering (IPO) of shares on a national
exchange to an upper limit, unless otherwise agreed, equal to that number
of shares, which when multiplied by the IPO price as listed on the cover
page of the final prospectus relating to Sycamore's IPO, equals 5% of the
dollar value of Xxxxxxxx' accumulated purchases of products and services,
(less any applicable discounts, taxes or charges for shipping, insurance,
and the like), made by Xxxxxxxx as of the date of the IPO, but in no event
more than 5% of the shares offered in such IPO.
c) Sycamore, as additional discount hereunder agrees to grant to Xxxxxxxx a
credit against future purchases by Xxxxxxxx under this Agreement, an amount
equal to [**]% of the net purchase price of sales of Sycamore Products SN
6000/8001 made to future customers prior to December 31, 1999. This credit
may be used for the purchase of Sycamore Products under this agreement only
and is not redeemable in any other matter. Upon expiration or termination
of this Agreement any unused portion of the credit will expire.
d) Upon completing a successful implementation of Sycamore product into
Xxxxxxxx network, Sycamore and Xxxxxxxx agree to engage in joint press
activity to the mutual benefit of both companies. The level of activity and
timing of any announcements will be by mutual agreement.
e) Any adjustment of the discount to which Xxxxxxxx is entitled, except for
corrections to mathematical or administrative errors in the computation of
such discount, shall not be retroactive with regard to Products purchased
and delivered prior to the adjustment of such discount.
17
CONFIDENTIAL AND PROPRIETARY INFORMATION OF
-------------------------------------------
SYCAMORE NETWORKS, INC.
----------------------
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission.
Asterisks denote omissions.
EXHIBIT B
to
SYCAMORE PURCHASE AND LICENSE AGREEMENT
Pricing and Discounts
---------------------
Sycamore agrees, during the term of this Agreement to extended a [**] product
discount on Sycamore's then-current end-user pricing in effect as of the date of
Xxxxxxxx' orders.
Sycamore represents that [**]. In the event that Sycamore [**].
18
CONFIDENTIAL AND PROPRIETARY INFORMATION OF
-------------------------------------------
SYCAMORE NETWORKS, INC.
----------------------
EXHIBIT C
to
SYCAMORE PURCHASE AND LICENSE AGREEMENT
INSURANCE TERMS
[NOTE: Sycamore's insurance binder to be attached.]
19
CONFIDENTIAL AND PROPRIETARY INFORMATION OF
-------------------------------------------
SYCAMORE NETWORKS, INC.
----------------------
EXHIBIT D
to
SYCAMORE PURCHASE AND LICENSE AGREEMENT
YEAR 2000 Statement
Sycamore Year 2000 (Y2K) Compliance
Corporate Statement
Sycamore Networks recognizes the genuine and particular concerns of the
telecommunications industry with regard to year 2000 performance issues and is
committed to ensure that Sycamore's Products meet the requirements of Sycamore's
customers in this critical area.
Sycamore Network's commits that its Products will comply with
telecommunications industry Year 2000 standards as set forth in each applicable
Product specification.
More specifically, to the extent that any Sycamore Software or Products
report or utilize dates, all such Software and Products, will be Year 2000
compliant and will meet telecommunication industry Year 2000 standards.
SYCAMORE shall ensure that any SYCAMORE provided programs or systems with which
its Software communicates or integrates and which utilize dates, are Year 2000
compliant and, If requested by Sycamore's Customer, Sycamore shall provide the
Customer with results of Year 2000 compliance tests previously conducted or will
agree to jointly conduct mutually agreed to Year 2000 compliance tests with the
Customer.
In the event the Products or Software do not comply or such tests
demonstrate that Sycamore's Software or Sycamore's Products are not Year 2000
compliant, as provided herein, Sycamore's obligation shall be to carry out or
procure the carrying out of all necessary enhancements or upgrades to the
Software or the Products at its own cost at Sycamore's manufacturing facility.
Sycamore shall not be obligated to make enhancements or upgrades in the
event such tests demonstrate that the Year 2000 non-compliance results from non-
Sycamore supplied programs or systems, or from Sycamore's compliance with an
industry standard specification in effect as of the date of manufacture.
The preceding statement is made pursuant to the United States Year 2000
Information and Readiness Disclosure Act (Public Law 105-271; 112 Stat. 2386).
20
CONFIDENTIAL AND PROPRIETARY INFORMATION OF
-------------------------------------------
SYCAMORE NETWORKS, INC.
----------------------
EXHIBIT E
to
SYCAMORE PURCHASE AND LICENSE AGREEMENT
THREE-PARTY ESCROW AGREEMENT
BETWEEN
PRODUCER, FORT XXXX AND SINGLE LICENSEE
This is an Example:
-------------------
This escrow agreement is intended for use by a Producer (Licensor), a
single Licensee (End User) and Fort Xxxx Escrow Services, Inc. Any number of
escrow products may be stored in escrow for the Licensee under the terms of this
agreement. All parties sign the contract.
Software Escrow Agreement
This Escrow Agreement ("Agreement") is made as of this ___ day of
_________________, 199__, by and between _____________________________________
("Producer"), Fort Xxxx Escrow Services, Inc. ("Fort Xxxx") and
________________________________________________________________________________
______________ (Licensee").
Preliminary Statement. Producer intends to deliver to Fort Xxxx a sealed
---------------------
package containing magnetic tapes, disks, disk packs, or other forms of media,
in machine readable form, and the written documentation prepared in connection
therewith, and any subsequent updates or changes thereto (the "Deposit
Materials") for the computer software products (the "System(s)"), all as
identified from time to time on Exhibit B hereto. Producer desires Fort Xxxx to
hold the Deposit Materials, and, upon certain events, deliver the Deposit
Materials (or a copy thereof) to Licensee, in accordance with the terms hereof.
Now, therefore, in consideration of the foregoing, of the mutual promises
hereinafter set forth, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. Delivery by Producer. Producer shall be solely responsible for
--------------------
delivering to Fort Xxxx the Deposit Materials as soon as practicable. Fort Xxxx
shall hold the Deposit Materials in accordance with the terms hereof. Fort Xxxx
shall have no obligation to verify the completeness or accuracy of the Deposit
Materials.
21
CONFIDENTIAL AND PROPRIETARY INFORMATION OF
-------------------------------------------
SYCAMORE NETWORKS, INC.
----------------------
2. Duplication; Updates.
--------------------
(a) Fort Xxxx may duplicate the Deposit Materials by any means in order to
comply with the terms and provisions of this Agreement, provided that Licensee
shall bear the expense of duplication. Alternatively, Fort Xxxx, by notice to
Producer, may reasonably require Producer to promptly duplicate the Deposit
Materials.
(b) Producer shall deposit with Fort Xxxx any modifications, updates, new
releases or documentation related to the Deposit Materials by delivering to Fort
Xxxx an updated version of the Deposit Materials ("Additional Deposit") as soon
as practicable after the modifications, updates, new releases and documentation
have been developed by Producer. Fort Xxxx shall have no obligation to verify
the accuracy or completeness of any Additional Deposit or to verify that any
Additional Deposit is in fact a copy of the Deposit Materials or any
modification, update, or new release thereof.
3. Notification of Deposits. Simultaneous with the delivery to Fort Xxxx
------------------------
of the Deposit Materials or any Additional Deposit, as the case may be, Producer
shall deliver to Fort Xxxx and to Licensee a written statement specifically
identifying all items deposited and stating that the Deposit Materials or any
Additional Deposit, as the case may be, so deposited have been inspected by
Producer and are complete and accurate. Fort Xxxx shall, within ten (10)
business days of receipt of any Deposit Materials, send notification to Producer
and Licensee that it has received from Producer such Deposit Materials.
4. Delivery by Fort Xxxx
---------------------
4.1 Delivery by Fort Xxxx to Licensee. Fort Xxxx shall deliver the
---------------------------------
Deposit Materials, or a copy thereof, to Licensee only in the event that:
(a) Producer notifies Fort Xxxx to effect such delivery to Licensee at a
specific address, the notification being accompanied by a check payable to Fort
Xxxx in the amount of one hundred dollars ($100.00); or
(b) Fort Xxxx receives from Licensee:
(i) the occurrence of one of the following escrow release events:
(1) the making by Producer of a general assignment for the
benefit of creditors and the unwillingness or inability of
Producer to provide support for the licensed software;
(2) any action by Producer under any federal or state insolvency
or similar law for the purpose of its bankruptcy, reorganization
or liquidation and the unwillingness or inability of Producer to
provide support for the licensed software;
(3) Producer's failure to continue in business without a
successor and the unwillingness or inability of Producer to
provide support for the licensed software;
22
CONFIDENTIAL AND PROPRIETARY INFORMATION OF
-------------------------------------------
SYCAMORE NETWORKS, INC.
----------------------
(ii) evidence satisfactory to Fort Xxxx that Licensee has previously
notified Producer of such Producer Default in writing;
(iii) a written demand that the Deposit Materials be released and
delivered to Licensee;
(iv) a written undertaking from the Licensee that the Deposit
Materials being supplied to the Licensee will be used only as
permitted under the terms of the License Agreement;
(v) specific instructions from the Licensee for this delivery; and
(vi) an initial check payable to Fort Xxxx in the amount of one
hundred dollars ($100.00).
(c) If the provisions of paragraph 4.1(a) are satisfied, Fort Xxxx shall,
within five (5) business days after receipt of the notification and check
specified in paragraph 4.1(a), deliver the Deposit Materials in accordance with
the applicable instructions.
(d) If the provisions of paragraph 4.1(b) are met, Fort Xxxx shall, within
five (5) business days after receipt of all the documents specified in paragraph
4.1(b), send by certified mail to Producer a photostatic copy of all such
documents. Producer shall have thirty (30) days from the date on which Producer
receives such documents ("Objection Period") to notify Fort Xxxx of its
objection ("Objection Notice") to the release of the Deposit Materials to
Licensee and to request that the issue of Licensee's entitlement to a copy of
the Deposit Materials be submitted to arbitration in accordance with the
following provisions:
(i) If Producer shall send an Objection Notice to Fort Xxxx during
the Objection Period, the matter shall be submitted to, and
settled by arbitration by, a panel of three (3) arbitrators
chosen by the Atlanta Regional Office of the American Arbitration
Association in accordance with the rules of the American
Arbitration Association. The arbitrators shall apply Georgia
law. At least one (1) arbitrator shall be reasonably familiar
with the computer software industry. The decision of the
arbitrators shall be binding and conclusive on all parties
involved, and judgment upon their decision may be entered in a
court of competent jurisdiction. All costs of the arbitration
incurred by Fort Xxxx, including reasonable attorneys' fees and
costs, shall be paid by the party which does not prevail in the
arbitration; provided, however, if the arbitration is settled
prior to a decision by the arbitrators, the Producer and Licensee
shall each pay 50% of all such costs.
(ii) Producer may, at any time prior to the commencement of
arbitration proceedings, notify Fort Xxxx that Producer has
withdrawn the Objection Notice. Upon receipt of any such notice
from Producer, Fort Xxxx shall reasonably promptly deliver the
Deposit Materials to Licensee in accordance with the instructions
specified in paragraph 4.1(b)(v).
23
CONFIDENTIAL AND PROPRIETARY INFORMATION OF
-------------------------------------------
SYCAMORE NETWORKS, INC.
----------------------
(e) If, at the end of the Objection Period, Fort Xxxx has not received an
Objection Notice from Producer, then Fort Xxxx shall reasonably promptly deliver
the Deposit Materials to Licensee in accordance with the instructions specified
in paragraph 4.1(b)(v). Both Producer and Licensee agree that Fort Xxxx shall
not be required to deliver such Deposit Materials until all such fees then due
Fort Xxxx have been paid.
4.2 Delivery by Fort Xxxx to Producer. Fort Xxxx shall release and
---------------------------------
deliver the Deposit Materials to Producer upon termination of this Agreement in
accordance with paragraph 7(a) hereof.
5. Indemnity. Producer and Licensee shall, jointly and severally,
---------
indemnify and hold harmless Fort Xxxx and each of its directors, officers,
agents, employees and stockholders ("Fort Xxxx Indemnities") absolutely and
forever, from and against any and all claims, actions, damages, suits,
liabilities, obligations, costs, fees, charges, and any other expenses
whatsoever, including reasonable attorneys' fees and costs, that may be asserted
against any Fort Xxxx Indemnitee in connection with this Agreement or the
performance of Fort Xxxx or any Fort Xxxx Indemnitee hereunder.
6. Disputes and Interpleader.
-------------------------
(a) Fort Xxxx may submit the matter to any court of competent jurisdiction
in an interpleader or similar action other than a matter submitted to
arbitration after Fort Xxxx'x receipt of an Objection Notice under Section 4 and
the parties under this Agreement submit the matter to such arbitration as
described in Section 4 of this Agreement. Any and all costs incurred by Fort
Xxxx in connection therewith, including reasonable attorneys' fees and costs,
shall be borne 50% by each of Producer and Licensee.
(b) Fort Xxxx shall perform any acts ordered by any court of competent
jurisdiction, without any liability or obligation to any party hereunder by
reason of such act.
7. Term and Renewal.
----------------
(a) The initial term of this Agreement shall be two (2) years, commencing
on the date hereof (the "Initial Term"). This Agreement shall be automatically
extended for an additional term of one year ("Additional Term") at the end of
the Initial Term and at the end of each Additional Term hereunder unless, on or
before ninety (90) days prior to the end of the Initial Term or an Additional
Term, as the case may be, any party notifies the other parties that it wishes to
terminate the Agreement at the end of such term.
(b) In the event of termination of this Agreement in accordance with
paragraph 7(a) hereof, Licensee shall pay all fees due Fort Xxxx and shall
promptly notify Producer that this Agreement has been terminated and that Fort
Xxxx shall return to Producer all copies of the Deposit Materials then in its
possession.
8. Fees. Producer and Licensee shall pay to Fort Xxxx the applicable
----
fees in accordance with Exhibit A as compensation for Fort Xxxx'x services under
this Agreement. The first years fees are due upon receipt of the signed
contract or Deposit Materials, whichever comes first and shall be paid in U.S.
Dollars.
(a) Payment. Fort Xxxx shall issue an invoice to Licensee following
-------
execution of this Agreement ("Initial Invoice"), on the commencement of any
Additional Term hereunder, and in connection
24
CONFIDENTIAL AND PROPRIETARY INFORMATION OF
-------------------------------------------
SYCAMORE NETWORKS, INC.
----------------------
with the performance of any additional services hereunder. Payment is due upon
receipt of invoice. All fees and charges are exclusive of, and Licensee is
responsible for the payment of, all sales, use and like taxes. Fort Xxxx shall
have no obligations under this Agreement until the Initial Invoice has been paid
in full by Licensee.
(b) Nonpayment. In the event of non-payment of any fees or charges
----------
invoiced by Fort Xxxx, Fort Xxxx shall give notice of non-payment of any fee due
and payable hereunder to the Licensee and, in such an event, the Licensee shall
have the right to pay the unpaid fee within ten (10) days after receipt of
notice from Fort Xxxx. If Licensee fails to pay in full all fees due during
such ten (10) day period, Fort Xxxx shall give notice of non-payment of any fee
due and payable hereunder to Producer and, in such event, Producer shall have
the right to pay the unpaid fee within ten (10) days of receipt of such notice
from Fort Xxxx. Upon payment of the unpaid fee by either the Producer or
Licensee, as the case may be, this Agreement shall continue in full force and
effect until the end of the applicable term. Failure to pay the unpaid fee under
this paragraph 8(b) by both Producer and Licensee shall result in termination of
this Agreement.
9. Ownership of Deposit Materials. The parties recognize and acknowledge
------------------------------
that ownership of the Deposit Materials shall remain with Producer at all times.
10. Available Verification Services. Upon receipt of a written request
-------------------------------
from Licensee, Fort Xxxx and Licensee may enter into a separate agreement
pursuant to which Fort Xxxx will agree, upon certain terms and conditions, to
inspect the Deposit Materials for the purpose of verifying its relevance,
completeness, currency, accuracy and functionality ("Technical Verification
Agreement"). Upon written request from Producer, Fort Xxxx will issue to
Producer a copy of any written technical verification report rendered in
connection with such engagement. If Fort Xxxx and Licensee enter into such
Technical Verification Agreement, Producer shall reasonably cooperate with Fort
Xxxx by providing its facilities, computer systems, and technical and support
personnel for technical verification whenever reasonably necessary. If
requested by Licensee, Producer shall permit one employee of Licensee to be
present at Producer's facility during any such verification of the Deposit
Materials.
11. Bankruptcy. Producer and Licensee acknowledge that this Agreement is
----------
an "agreement supplementary to" the License Agreement as provided in Section 365
(n) of Xxxxx 00, Xxxxxx Xxxxxx Code (the "Bankruptcy Code"). Producer
acknowledges that if Producer as a debtor in possession or a trustee in
Bankruptcy in a case under the Bankruptcy Code rejects the License Agreement or
this Agreement, Licensee may elect to retain its rights under the License
Agreement and this Agreement as provided in Section 365 (n) of the Bankruptcy
Code. Upon written request of Licensee to Producer or the Bankruptcy Trustee,
Producer or such Bankruptcy Trustee shall not interfere with the rights of
Licensee as provided in the License Agreement and this Agreement, including the
right to obtain the Deposit Material from Fort Xxxx.
25
CONFIDENTIAL AND PROPRIETARY INFORMATION OF
-------------------------------------------
SYCAMORE NETWORKS, INC.
----------------------
12. Miscellaneous.
-------------
(a) Remedies. Except for intentional misrepresentation, gross negligence
--------
or intentional misconduct, Fort Xxxx shall not be liable to Producer or to
Licensee for any act, or failure to act, by Fort Xxxx in connection with this
Agreement. Any liability of Fort Xxxx regardless of the cause shall be limited
to the fees exchanged under this Agreement. Fort Xxxx will not be liable for
special, indirect, incidental or consequential damages hereunder.
(b) Natural Degeneration; Updated Version. In addition, the parties
-------------------------------------
acknowledge that as a result of the passage of time alone, the Deposit Materials
are susceptible to loss of quality ("Natural Degeneration"). It is further
acknowledged that Fort Xxxx shall have no liability or responsibility to any
person or entity for any Natural Degeneration. For the purpose of reducing the
risk of Natural Degeneration, Producer shall deliver to Fort Xxxx a new copy of
the Deposit Materials at least once every three years.
(c) Permitted Reliance and Abstention. Fort Xxxx may rely and shall be
---------------------------------
fully protected in acting or refraining from acting upon any notice or other
document believed by Fort Xxxx in good faith to be genuine and to have been
signed or presented by the proper person or entity. Fort Xxxx shall have no
duties or responsibilities except those expressly set forth herein.
(d) Independent Contractor. Fort Xxxx is an independent contractor, and is
----------------------
not an employee or agent of either the Producer or Licensee.
(e) Amendments. This Agreement shall not be modified or amended except by
----------
another agreement in writing executed by the parties hereto.
(f) Entire Agreement. This Agreement, including all exhibits hereto,
----------------
supersedes all prior discussions, understandings and agreements between the
parties with respect to the matters contained herein, and constitutes the entire
agreement between the parties with respect to the matters contemplated herein.
All exhibits attached hereto are by this reference made a part of this Agreement
and are incorporated herein.
(g) Counterparts; Governing Law. This Agreement may be executed in
---------------------------
counterparts, each of which when so executed shall be deemed to be an original
and all of which when taken together shall constitute one and the same
Agreement. This Agreement shall be construed and enforced in accordance with
the laws of the State of Georgia.
(h) Confidentiality. Fort Xxxx will hold and release the Deposit Materials
---------------
only in accordance with the terms and conditions hereof, and will maintain the
confidentiality of the Deposit Materials.
(i) Notices. All notices, requests, demands or other communications
-------
required or permitted to be given or made under this Agreement shall be in
writing and shall be delivered by hand or by commercial overnight delivery
service which provides for evidence of receipt, or mailed by certified mail,
return receipt requested, postage prepaid. If delivered personally or by
commercial overnight delivery service, the date on which the notice, request,
instruction or document is delivered shall be the date on which delivery is
deemed to be made, and if delivered by mail, the date on which such notice,
request, instruction or document is
26
CONFIDENTIAL AND PROPRIETARY INFORMATION OF
-------------------------------------------
SYCAMORE NETWORK, INC
---------------------
received shall be the date on which deliveryis deemed to be made. Any party may
change its address for the purpose of this Agreement by notice in writing to the
other parties as provided herein.
(j) Survival. Paragraphs 5, 6, 8, 9 and 12 shall survive any termination
--------
of this Agreement.
(k) No Waiver. No failure on the part of any party hereto to exercise, and
---------
no delay in exercising any right, power or single or partial exercise of any
right, power or remedy by any party will preclude any other or further exercise
thereof or the exercise of any other right, power or remedy. No express waiver
or assent by any party hereto to any breach of or default in any term or
condition of this Agreement shall constitute a waiver of or an assent to any
succeeding breach of or default in the same or any other term or condition
hereof.
IN WITNESS WHEREOF each of the parties has caused its duly authorized
officer to execute this Agreement as of the date and year first above
written.
Fort Xxxx Escrow Services, Inc.
0000X Xxxxxx Xxxxxx Phone: 0-000-000-0000
Xxxxxxxxx, Xxxxxxx 00000-0000 Fax: 0-000-000-0000
E-mail: xxxx@xxxxxxxxxxxxxx.xxx
By:-------------------------- Title: --------------------------
Print Name:----------------------------------------------------
Producer
By:-------------------------- Title: --------------------------
Print Name:----------------------------------------------------
Address:-------------------------------------------------------
Phone:---------------------------------------------------------
Fax:-----------------------------------------------------------
E-mail:--------------------------------------------------------
Licensee
By:-------------------------- Title: --------------------------
Print Name:----------------------------------------------------
Address:-------------------------------------------------------
Phone:---------------------------------------------------------
Fax:-----------------------------------------------------------
E-mail:--------------------------------------------------------
27
CONFIDENTIAL AND PROPRIETARY INFORMATION OF
-------------------------------------------
SYCAMORE NETWORK, INC
---------------------
EXHIBIT A
FEE SCHEDULE
Fees to be paid by Licensee shall be as follows:
Initialization fee (one time only) $850
($765 for current clients)
Annual maintenance/storage fee
. includes two Deposit Material updates $900
. includes one cubic foot of storage space (foreign $1,000)
International (outside of U.S) - $1,000/product
Additional Updates $150
(above two per year)
Additional Storage Space $150/cubic foot
Payable by Licensee or Producer:
Due Upon Licensee's or Producer's
Request for Release of Deposit Materials $100 for initial 2 hrs
$50/hour for
additional hours
A ten percent discount is credited towards the initialization fee for current
Fort Xxxx clients. Fees due upon receipt of signed contract or Deposit
Material, whichever comes first and shall be paid in U.S. Dollars. Thereafter,
fees shall be subject to their current pricing, provided that such prices shall
not increase by more than 10% per year. An invoice for all renewal fees will be
issued on the anniversary of the initial invoice.
28
CONFIDENTIAL AND PROPRIETARY INFORMATION OF
-------------------------------------------
SYCAMORE NETWORK, INC
---------------------
EXHIBIT B
B1. Product Name: ____________________________________________________
Version #:________________________________________________________
Prepared and Confirmed by: ________________________________________________
Title: _________________________________________ Date: __________________
Signature: _______________________________________________________________
Type of deposit:
----------------
____ Initial Deposit
____ Update Deposit to replace current deposits
____ Other (pleas describe)___________________________________________
Items Deposited:
----------------
Quantity Media Type Description of Material
A) ___________ ________________ _______________________
B) ___________ ________________ _______________________
C) ___________ ________________ _______________________
(please copy page as necessary)
29
CONFIDENTIAL AND PROPRIETARY INFORMATION OF
-------------------------------------------
SYCAMORE NETWORK, INC
---------------------
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission.
Asterisks denote omissions.
EXHIBIT F
to
SYCAMORE PURCHASE AND LICENSE AGREEMENT
MAINTENANCE OPTIONS
Sycamore Support Services
7 x 24 TAC Support Contract Software Maintenance Contract
Resident Support Engineer Contract Hardware Maintenance Contracts
Time & Material Order Return-to-Factory Repair Service
Standard Product Training Customized Product Training
Support Packages:
Basic:
Includes: Software Maintenance Contract
7 x 24 TAC Support Contract
Package Price: [**] of End User Price
Standard:
Includes: Software Maintenance Contract
7 x 24 TAC Support Contract
Hardware Maintenance Contract (Return/Repair)
Package Price: [**] of End User Price
Premium:
Includes: Software Maintenance Contract
7 x 24 TAC Support Contract
Hardware Maintenance Contract (Advanced Exchange)
Package Price: [**] of End User Price
30
CONFIDENTIAL AND PROPRIETARY INFORMATION OF
-------------------------------------------
SYCAMORE NETWORK, INC
---------------------
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission.
Asterisks denote omissions.
1. 7 x 24 TAC Support Contract
1.1 Service Description:
A. TAC Support includes 7 x 24 priority access to Sycamore's Technical
Assistance Center. Priority support calls are routed to a Sycamore
Network Support Engineer within ten (10) minutes during normal
business hours and within twenty (20) minutes outside normal
business hours.
B. Sycamore Normal Business Hours:
8:30 a.m. - 5:30 p.m. EST Monday thru Friday
Excluding Sycamore Holidays
C. Customers may call Sycamore's Technical Assistance Center Support
toll-free number for technical support and problem diagnosis.
D. Electronic access to Sycamore's bulletin board service via
xxx.xxxxxxxxxxx.xxx, provides Customers with: technical tips,
software release notes, and problem status reports.
1.2 Service Eligibility:
A. Customer must possess a valid Sycamore TAC Support Contract or
Sycamore Software Maintenance Contract.
B. Customer must be in good credit standing with Sycamore.
1.3 Service Pricing:
A la carte: [**] of List Price
31
CONFIDENTIAL AND PROPRIETARY INFORMATION OF
-------------------------------------------
SYCAMORE NETWORK, INC
---------------------
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission.
Asterisks denote omissions.
2. Hardware Maintenance Contract (Return/Repair)
2.1 Service Description:
A. The Customer must make a request for return by contacting
Sycamore's Technical Support Center (TAC) and requesting a Return
Material Authorization (RMA). Access to the TAC is available Monday
through Friday, between 8:30 a.m. and 5:30 p.m., Eastern Time.
B. Sycamore shall repair or replace (at its option) the malfunctioning
product and return a functioning product to the Customer's site
within [**] days of Sycamore's receipt of the malfunctioning
product.
2.2 Service Eligibility:
A. Customer must possess a valid Sycamore Hardware Maintenance Service
Contract.
B. Customer must be in good credit standing with Sycamore.
C. Customer must obtain a Sycamore RMA number and must externally
label the product packaging with the Sycamore RMA number. Any
materials returned to Sycamore without prior authorization and
proper labeling will be exempt from the stated Service Description.
2.3 Service Pricing:
A la carte: [**] of List Price
32
CONFIDENTIAL AND PROPRIETARY INFORMATION OF
-------------------------------------------
SYCAMORE NETWORK, INC
---------------------
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission.
Asterisks denote omissions.
3. Hardware Maintenance Contract (Advanced Exchange)
3.1 Service Description:
A. Sycamore provides an advanced exchange replacement product upon
qualification of defect by Sycamore support personnel.
B. The Customer must make a request for return by contacting Sycamore's
Technical Support Center (TAC) and requesting a Return Material
Authorization (RMA). Access to the TAC is available Monday through
Friday, between 8:30 a.m. and 5:30 p.m., Eastern Time.
C. All eligible advanced exchange RMA requests for replacement products
received before 3:00 p.m., Eastern Time will be shipped for arrival at
the Customer site the next business day.
D. All eligible RMA requests made after 3:00 p.m. will be shipped the
following day for delivery at the Customer site [**] business days from
the date of the RMA request.
E. Customer shall return the malfunctioning product to Sycamore within [**]
days of receipt of the replacement product. Malfunctioning product not
returned to Sycamore within [**] days of Customer's receipt of
replacement product shall be invoiced at Sycamore's then-current list
price.
F. The replacement products are provided to Customer at no cost provided
the replacement was due to malfunction or normal wear and tear of the
product and not due to causes external to the product. Otherwise, the
product is provided at the then-current Sycamore list price, plus
shipping and handling costs.
3.2 Service Eligibility:
A. Customer must possess a valid Sycamore Hardware Maintenance Service
Contract.
B. Customer must be in good credit standing with Sycamore.
C. Customer must obtain a Sycamore RMA number and must externally label the
product packaging with the Sycamore RMA number. Any materials returned
to Sycamore without prior authorization and proper labeling will be
exempt from the stated Service Description.
3.3 Service Pricing:
A la carte: [**] of List Price
CONFIDENTIAL AND PROPRIETARY INFORMATION OF
-------------------------------------------
SYCAMORE NETWORK, INC
---------------------
4. Return-to-Factory Repair Service
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission.
Asterisks denote omissions.
4.1 Service Description:
A. As a per incident service, Sycamore shall repair or replace (at its
option) the malfunctioning product and return a functioning product
to the Customer's site within [**] days of Sycamore's receipt of the
malfunctioning product.
B. Beyond the Standard Hardware Warranty period, Sycamore warrants its
work performed for a period of [**] days from the date of shipment
from Sycamore to the Customer.
4.2 Service Eligibility:
A. Customer must provide a purchase order or other form of acceptable
payment (at Sycamore's discretion) prior to returning the defective
product.
B. Customer must be in good credit standing with Sycamore.
C. Customer must obtain a Sycamore RMA number and must externally label
the product packaging with the Sycamore RMA number. Any materials
returned to Sycamore without prior authorization and proper labeling
will be exempt from the stated Service Description.
4.3 Service Pricing:
Quoted by Sycamore TAC at time of service request.
34
CONFIDENTIAL AND PROPRIETARY INFORMATION OF
-------------------------------------------
SYCAMORE NETWORK, INC
---------------------
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission.
Asterisks denote omissions.
5. Software Maintenance Contract
5.1 Service Description:
A. All Sycamore software releases performed during the software
maintenance period will be provided to the Customer at no additional
charge.
B. Sycamore will notify the Customer under contract of all generally
available software releases.
C. Sycamore may choose to distribute all software and documentation
updates either electronically (xxx.xxxxxxxxxxx.xxx) or on physical
media (CD, diskette, tape, etc.).
D. Release Notes outlining software modifications, known deficiencies
and upgrade/installation procedures are provided as part of the
service.
E. User Documentation updates, if applicable, is provided as part of
the service.
F. Sycamore will provide revision and enhancement release information
as it becomes available for general release, relating to
availability of code corrections, work-around procedures and
limitations of Covered Products.
G. Periodic software problem status reports including information
concerning software enhancements, bugs and documentation updates.
H. Purchase of Software Maintenance Contract also includes 7 x 24 TAC
Support Services.
5.2 Service Eligibility:
A. Customer must possess a valid Sycamore Software Maintenance Service
Contract.
B. Customer must be in good credit standing with Sycamore.
5.3 Service Pricing:
A la carte: [**] of List Price
35
CONFIDENTIAL AND PROPRIETARY INFORMATION OF
-------------------------------------------
SYCAMORE NETWORK, INC
---------------------
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission.
Asterisks denote omissions.
6. Resident Support Engineer Contract
6.1 Service Description:
A. Sycamore provides a full-time qualified support engineer on-site at
the Customer's location.
B. Sycamore Resident Engineer provides technical consultation, assists
in problem isolation, assists in planning and executing network
activities (e.g. installations, upgrades, etc.) and manages issue
resolution with Customer and Sycamore personnel.
C. Standard work-hours (# of hours and time-of-day) apply. However,
non-standard work hours can be scheduled on an as needed basis.
6.2 Service Eligibility:
A. Customer must purchase a Sycamore Resident Support Engineer
Contract.
B. Customer must be in good credit standing with Sycamore.
6.3 Service Pricing:
[**] / year
36
CONFIDENTIAL AND PROPRIETARY INFORMATION OF
-------------------------------------------
SYCAMORE NETWORK, INC
---------------------
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission.
Asterisks denote omissions.
7. Time & Material Order
7.1 Service Description:
A. Customer may contract Sycamore Support Engineer(s) for on-site
installation, upgrade or problem isolation services.
B. Customer must provide a description of work requested, date and time
required, location and materials required.
7.2 Service Eligibility:
A. Customer must provide a purchase order or other form of acceptable
payment (at Sycamore's discretion) prior to receiving service.
B. Customer must be in good credit standing with Sycamore.
7.3 Service Pricing:
Contact Sycamore TAC for quotation based upon rates below:
Hourly Labor Charges (portal-to-portal):
Monday through Friday, 8:30 AM - 5:30 PM $[**]
All other times $[**]
$[**] Minimum Labor Charge
Travel Charges (distance Sycamore must travel):
0-50 miles $[**]
51-500 $[**]
501-1,000 $[**]
1,001-1,500 $[**]
1,501-3,000 $[**]
Greater than 3,000 miles [**]
37
CONFIDENTIAL AND PROPRIETARY INFORMATION OF
-------------------------------------------
SYCAMORE NETWORK, INC
---------------------
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission.
Asterisks denote omissions.
8. Standard Product Training
8.1 Service Description:
A. Sycamore qualified instructor provides training on product
installation, configuration, operations, management and diagnosis.
B. Course materials (overheads, handouts, etc.) are provided to each
student.
C. Hands-on laboratory exercises are provided (if applicable). All
instructional equipment provided by Sycamore.
D. Classes are offered at Sycamore Education facilities or can be
brought directly to the customer's site (additional travel and
expense charges will be applied).
8.2 Service Eligibility:
A. Customer must provide a purchase order or other form of acceptable
payment (at Sycamore's discretion) prior to attending training.
B. Customer must be in good credit standing with Sycamore.
8.3 Service Pricing:
Sycamore Facility:
Training Cost (per student): $[**] per day
Customer Location:
Training Cost (per student): $[**] per day
Travel: $[**] per course delivered
Expenses: $[**] per day
38
CONFIDENTIAL AND PROPRIETARY INFORMATION OF
-------------------------------------------
SYCAMORE NETWORK, INC
---------------------
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission.
Asterisks denote omissions.
9. Customized Product Training
9.1 Service Description:
A. Sycamore will modify existing or create new materials to provide
Customer-specified training.
B. Sycamore qualified instructor provides the customized training.
C. Course materials (overheads, handouts, etc.) are provided to each
student.
D. Hands-on laboratory exercises are provided (if applicable). All
instructional equipment provided by Sycamore.
E. Classes are offered at Sycamore Education facilities or can be
brought directly to the customer's site (additional travel and
expense charges will be applied).
9.2 Service Eligibility:
A. Customer must provide a purchase order or other form of acceptable
payment (at Sycamore's discretion) prior to attending training.
B. Customer must be in good credit standing with Sycamore.
9.3 Service Pricing:
Sycamore Facility:
Course Customization: $[**] per hour ($[**] minimum)
(estimate provided at time of request)
Training Cost (per student): $[**] per day
Customer Location:
Course Customization: $[**] per hour ($[**] minimum)
(estimate provided at time of request)
Training Cost (per student): $[**] per day
Travel: $[**] per course
Expenses: $[**] per day
39
CONFIDENTIAL AND PROPRIETARY INFORMATION OF
-------------------------------------------
SYCAMORE NETWORK, INC
---------------------
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission.
Asterisks denote omissions.
LegalO-Z/Whalen_Patricia/Legal/107761.117/ex_s.wpf
40
CONFIDENTIAL AND PROPRIETARY INFORMATION OF
-------------------------------------------
SYCAMORE NETWORK, INC
---------------------
