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EXHIBIT 10.10
TRITON NETWORK SYSTEMS, INC.
SUPPLY AGREEMENT
This Supply Agreement (the "Agreement") is made as of
December 23, 1999 (the "Effective Date")
between Triton Network Systems, Inc. ("Seller", also referred to as "Triton"),
a Delaware corporation with principal place of business at:
0000 Xxxxx Xxxx Xxxxxx,
Xxxxxxx, XX; USA 32819
and
Advanced Radio Telecom Corp. ("Buyer", also referred to as "ART") a Delaware
corporation with principal place of business at:
000 - 000xx Xxxxxx XX, Xxxxx 0000,
Xxxxxxxx, XX, XXX 98004
In consideration of the mutual covenants contained herein,
the Parties agree as follows:
TRITON NETWORK SYSTEMS, Inc. SUPPLY AGREEMENT NUMBER:
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ARTICLE 1. DEFINITIONS
As used in this Agreement, the following terms have the following meanings:
1.01 "ADDITIONAL TERM" has the meaning set forth in Section 3.01.
1.02 "AFFILIATE" means any entity listed in Exhibit I or any entity which
is a parent or subsidiary of a Party or which is controlled by or
under common ownership or control of a Party.
1.03 "AGREEMENT" means this Supply Agreement, and the Exhibits attached
hereto, as they may be amended from time to time.
1.04 "ACCEPTANCE" means with respect to deliveries of the Equipment to
Buyer, that the shipment has been inspected by Buyer, the paperwork,
including packing list, accurately matches the shipment and the
shipment matches the Buyer's Purchase Order or other written
delivery instructions.
1.05 "ANNUAL SUPPORT FEE" shall mean the fees for annual software support
by Seller as reflect in Exhibit 2.
1.06 "BACKWARDS COMPATIBLE" means (i) with respect to Software, the ability
of newer or more advanced versions to function seamlessly with older
or less advanced version of Software and, Products, including without
limitation, all existing Software and Products purchased by Buyer
and (ii) with respect to Equipment the interoperability and
compatibility of such Equipment with existing Products purchased by
Buyer and Buyer's network infrastructure, in each case resulting in no
reduction in the existing level of functionality of the existing
Products or Buyer's network infrastructure.
1.07 "CHANGE ORDER" shall have the meaning set forth in Section 5.03(d).
1.08 "CONFIDENTIALITY AGREEMENT" has the meaning set forth in Section
10.01.
1.09 "DELIVERY DATE" means the date on which Products ordered by Buyer are
to be delivered to the location(s) as specified by Buyer in Purchase
Orders accepted by Seller pursuant to Section 5.03.
1.10 "DOCUMENTATION" means the system standard documentation provided to
Buyer, in written or electronic form, as described in this Agreement.
All Documentation shall be subject to applicable copyright and
confidentiality restrictions.
1.11 "EFFECTIVE DATE" shall mean December 23, 1999.
1.12 "EQUIPMENT" means the hardware Products provided to Buyer as defined
in this Agreement. In addition to hardware developed by Seller,
Equipment generally includes OEM Equipment and other Third Party
Equipment, except as otherwise provided in this Agreement.
1.13 "FORECAST" means non-binding forecasts of Buyer's anticipated Product
orders as most recently revised pursuant to Section 5.03 of this
Agreement.
1.14 "IFU" refers to Seller's Invisible Fiber(TM) unit.
1.15 "INITIAL TERM" has the meaning set forth in Section 3.01.
1.16 "INITIAL PURCHASE CANCELLATION FEE" has the meaning set forth in
Section 4.05.
1.17 "INITIAL PURCHASE COMMITMENT" has the meaning set forth in
Section 4.02.
1.18 "LATE SHIPMENT" has the meaning set forth in Section 5.04.
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1.19 "LIST PRICE" means the Seller's standard price before any discount,
as may be available in price lists from time to time.
1.20 "MAJOR SOFTWARE RELEASE" means a Software Release which contains
significantly new features and functionality (only) and does not
include maintenance releases, updates or bug fixes.
1.21 "NET PRICE" means the price the Buyer will pay after Seller's
discount.
1.22 "PARTY" means either Buyer or Seller.
1.23 "PRODUCT" means, individually and collectively, the Equipment,
Software, and Documentation specified in Exhibit 2. In addition, any
item Seller adds to its generally available standard Product price
list or so identifies to Buyer in a Quotation shall be deemed
incorporated into this Agreement upon the mutual agreement of the
Buyer and Seller, subject to additional terms and conditions specified
in the applicable Product Exhibit, if any.
1.24 "PRODUCT SPECIFICATION" means those specifications set forth in
Exhibit 6 to this Agreement. Exhibit 6 may be revised from time to
time by the mutual agreement of the Parties to address performance
issues revealed by testing during the Term hereof.
1.25 "PURCHASE ORDER" means a written, numerically controlled and dated
purchase authorization document issued by Buyer or Buyer Affiliate to
Seller or Seller Affiliate, specifying the types and quantities of
Products to be furnished by Seller pursuant to this Agreement.
1.26 "RPS" means a Radio Pair System which includes two (2) IFUs, mounting
brackets and initial Software.
1.27 "QUOTATION" means a written budgetary or firm price quotation, as
specified in this Agreement, issued by Seller to Buyer for the supply
of any Products pursuant to this Agreement.
1.28 "SHIP DATE" means the date on which a Product ordered by Buyer is to
be shipped as set forth in the relevant Purchase Order, or in the case
of Software, the date upon which such Software is either available for
download by Buyer or physically shipped to Buyer.
1.29 "SOFTWARE" means the Seller's proprietary and/or Third Party Software
computer programs provided to Buyer (consisting of firmware and logic
instructions in machine readable code residing in, or intended to be
loaded in computer memories which provide basic logic, operating
instructions and Seller-related application instructions, but
excluding customer data) as well as the Documentation used to
describe, maintain and use the programs. Any reference herein to
Software being "sold," "purchased" or the like is understood to be a
reference in fact to the program being licensed.
1.30 "SOFTWARE LICENSE" shall mean the license to use Software granted to
Buyer by Seller pursuant to this Agreement.
1.31 "SOFTWARE RELEASE" means revisions to Software or new Software
containing new features, and/or enhancements, and/or certain problem
fixes that may be supplied by Seller to Buyer from time to time.
1.32 "SOURCE CODE" shall have the meaning set forth in Section 7.07.
1.33 "STANDARD INTERVAL" means the standard time prior to the shipment of
a Product following acceptance of a Purchase Order by Seller. Seller's
Standard Interval is ninety (90) days for forecasted quantities and
one hundred twenty (120) days for unforecasted quantities.
1.34 "TAC" means Seller's Technical Assistance Center.
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1.35 "TERM" means the duration of this Agreement.
1.36 "TERRITORIES" means the countries, country, or portion of country
that are covered by this Agreement as noted in Exhibit 4. The
Parties may, by mutual written agreement, amend this Agreement from
time to time to add additional countries to the Territories.
1.37 "THIRD PARTY" means any individual or legal entity not including
Buyer and Seller and their respective Affiliates.
1.38 "THIRD PARTY EQUIPMENT" means any Equipment not of Seller's
manufacture which are identified in Exhibits to this Agreement. In
addition, any Equipment Seller adds to its generally available
standard Third Party Equipment price list or so identifies to Buyer
in a Quotation shall be subject to the terms and conditions of this
Agreement and any mutually acceptable additional terms and
conditions specified in writing. Seller may also recommend Third
Party Equipment that is not included in the Exhibits or provided by
the Seller. Any Third Party Equipment recommended by but not sold by
the Seller is not covered under the terms and conditions set forth
in this Agreement.
1.39 "THIRD PARTY PRODUCTS" means, collectively, Third Party Equipment and
Third Party Software.
1.40 "THIRD PARTY SOFTWARE" means any Software not owned by Seller which
is included within Licensed Software.
ARTICLE 2. SCOPE OF AGREEMENT
2.01 This Agreement sets forth the terms and conditions under which Buyer
and its Affiliates may order Products from Seller and its Affiliates
and Seller and its Affiliates will supply Products to Buyer and its
Affiliates. Unless otherwise set forth herein, any reference in this
Agreement to Seller or Buyer shall be deemed to include their
respective Affiliates. Buyer may use the Products itself, or may use
the Products to provide services to others, or sell the Products to
Third Parties subject to the terms and conditions of this Agreement.
2.02 Unless specifically stated otherwise, all references to money or
currency shall be in U.S. dollars and all documentation,
correspondence, and communication shall be in the English language.
2.03 Seller shall meet all Buyer supply requirements as set forth in
accepted Purchase Orders irrespective of Purchase Orders for
Equipment from other parties; provided, however, such Buyer
requirements are reasonably consistent with Forecasts submitted by
Buyer to Seller in the manner set forth herein.
2.04 Subject to Section 4.03 below, this Agreement shall also apply to the
products provided by Seller and installed as of the Effective Date in
Buyer's network in San Jose, California pursuant to the Evaluation
Trial Agreement dated as of April 29, 1999, subject to section 4.03
below, which products shall be deemed to be "Products" under this
Agreement.
ARTICLE 3. TERM
3.01 The initial term of this Agreement is three (3) years from the
Effective Date (the "Initial Term"). Following the Initial Term, this
Agreement shall be automatically renewed for successive one (1) year
terms (each, an "Additional Term"); provided, that (i) at any time
after this Initial Term Buyer may terminate this Agreement by
providing thirty (30) days prior written notice to Seller,
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and (ii) at any time beginning one year after the expiration of the
initial Term, Seller may terminate this Agreement by providing
thirty (30) days prior written notice to Buyer.
ARTICLE 4. PURCHASE RIGHTS AND COMMITMENTS
4.01 Subject to the terms and conditions of this Agreement, Seller
agrees to sell and Buyer agrees to buy Products in accordance with
the pricing and benefits set forth in Exhibit 2 of this Agreement.
4.02 Buyer agrees to place Purchase Orders for 1,000 RPSs to be delivered
by December 31, 2000. This "Initial Purchase Commitment" is Buyer's
sole commitment with respect to purchasing Products from Seller
during the Term. Concurrent with execution of this Agreement, Buyer
will issue a Purchase Order for 170 RPSs to be delivered before
June 30, 2000, which RPSs shall be counted towards the Initial
Purchase Commitment. Buyer will issue confirming Purchase Orders with
specific delivery information such as Ship Date and location. An
additional 750 RPSs of the Initial Purchase Commitment are to be
delivered by December 31, 2000 pursuant to Purchase Orders issued by
Buyer. Buyer may apply purchases of any of Seller's 38Ghz products
to the Initial Purchase Commitment. If prices for Seller's future
38Ghz products are greater than the prices set forth in this
Agreement, the Initial Purchase Commitment shall be measured by total
purchase price not by the number of units.
4.03 Seller shall replace the IFUs which are installed in Buyer's network
in San Jose, California. ("San Xxxx IFUs") as of the Effective Date
with new IFU's which Seller delivered to) Buyer pursuant to Purchase
Orders number 3886, 3888 or 3891. Seller will replace the IFUs, at
Seller's sole cost and expense, at a mutually acceptable time during
January, 2000. Buyer shall return the San Xxxx IFUs to Seller, at
Seller's sole cost and expense, and Seller will not xxxx Buyer for
the San Xxxx IFUs. Seller shall submit an invoice for equipment
(which invoice shall not include the San Xxxx IFU's or any replaced
cable or other equipment which has been or will be returned to Seller
in connection with the IFU replacement) provided by Seller and
installed as of the Effective Date in Buyer's network in San Jose,
California. Buyer shall promptly pay such invoice subject to
reconciling such invoice with the Triton supplied equipment in use in
the ART network as of the Effective Date.
4.04 Purchases of RPSs (i) by Affiliates of Buyer, (ii) pursuant to orders
outstanding on the date hereof as set forth in the Letter Agreement,
dated November 11, 1999, between Buyer and Seller, and (iii)
delivered by Seller to Buyer prior to the date of this Agreement,
shall count towards Buyer's Initial Purchase Commitment. Buyer may,
without any further liability to Seller, cancel its Initial Purchase
Commitment upon the occurrence of any of the following events, in
which case Buyer has no obligations to pay any Initial Purchase
Cancellation Fee or otherwise:
(a) Seller materially breaches this Agreement and such breach
recurs, continues or remains uncured after thirty (30) days
written notice;
(b) During the period commencing on the Effective Date and
ending on June 1, 2000, there occur [*], or during the period
commencing on June 1, 2000 through the remainder of the Term,
there occurs [*];
(c) Products fail to meet the performance requirements set
forth in the Product Specifications;
[*] Confidential Treatment Requested
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(d) Seller files a voluntary petition in bankruptcy or has an
involuntary petition in bankruptcy filed against it that is
not dismissed within forty-five (45) days of such involuntary
filing; Seller admits the material allegations of any
petition in bankruptcy filed against it; Seller is adjudged
bankrupt; Seller makes a general assignment for the benefit
of its creditors, if a receiver is appointed for all or a
substantial portion of its assets and is not discharged
within sixty (60) days after his appointment; or Seller
commences any proceeding for relief from its creditors in any
court under any state insolvency statutes;
(e) Seller fails to ship to Buyer the quantity of Products
set forth in an accepted Purchase Order (which Products
conform with Product Specifications) within fifteen (15) days
after the Ship Date set forth in such accepted Purchase
Order;
(f) Seller materially disregards or materially violates any
applicable laws;
(g) The Product Specifications or the price is materially
changed due to the effect of changes in government
regulations which require such change;
(h) A force majeure event which impedes Sellers performance
hereunder continues for a period of thirty (30) days
(regardless of whether, as a result of such event, Buyer
cancels any Purchase Order in accordance with Section 5.05
hereof);
(i) Buyer is enjoined from using any Products and Seller is
unable to cure the effects of such injunction pursuant to
Section 9.02(a) or (b) within thirty (30) days; or
4.05 Subject to Section 4.04, if Buyer fails to place Purchase Orders (or
later cancels such Purchase Orders (other than pursuant to Section
5.05(c))) for 1,000 RPSs to be delivered by December 31, 2000, Buyer
will pay to Seller a penalty (the "Initial Purchase Cancellation Fee")
equal to ten percent (10%) of the aggregate purchase price of the
number of RPSs equal to the remainder of (i) 1000 RPSs minus (ii) the
total number of RPSs included in Purchase Orders placed by Buyer to be
delivered on or before December 31, 2000. Any RPS included in any
Purchase Order placed by Buyer to be delivered prior to December 31,
2000 which is cancelled by Buyer in accordance with Section 5.05(c)
hereof shall be counted as delivered (and accordingly included in
clause (ii) of the immediately preceding sentence) for purposes of
calculating the Initial Purchase Cancellation Fee pursuant to this
Section 4.05. Payment by Buyer of the Initial Purchase Cancellation
Fee shall be Seller's sole and exclusive remedy for Buyer's failure to
satisfy the Initial Purchase Commitment, and Seller agrees not to seek
any other remedy for such failure.
Article 5. TERMS OF PURCHASE
5.01 Pricing
(a) The pricing of the Products shall be as specified in the
attached Exhibit 2 plus applicable taxes unless otherwise
agreed to between the Parties in writing or in the case of
regulatory change as specified in this Section 5.01 (a). The
prices set forth in the attached Exhibit 2 for
Seller-manufactured Products are based on Seller's design,
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manufacture, and delivery pursuant to its design criteria
and manufacturing processes and procedures in effect on the
Effective Date. If, solely as a result of the imposition of
requirements by any Federal, State or local government
during the Term, there is a change in such criteria,
processes or procedures or any material change in the
Products caused by such governmental requirements, the
prices may be adjusted by Seller, subject to reasonable
approval of Buyer and mutual written agreement of Seller and
Buyer. Any OEM Equipment and Third Party Products which have
been so identified in the attached Exhibit 2 shall be
furnished subject to the applicable vendor's then-current
terms, conditions and specifications subject to Buyer's
written acceptance of such terms, conditions and
specifications.
(b) All prices listed in Exhibit 2 and in any and all
Quotations, unless otherwise noted, are FOB Seller and are
exclusive of all freight, insurance, duties, taxes (more
specifically including but not limited to excise, sales,
value added, goods & services, and usage taxes), and any and
all other levies as might be incurred after the FOB point.
5.02 Payment
(a) Product Payment - Payment for Products shall be due upon the
later of thirty (30) days following shipment of such
Products to Buyer and thirty (30) days following the receipt
by Buyer of Seller's invoice with respect to such Products.
Notwithstanding any other provision hereof, in the event
that (i) Buyer fails to make timely payment for Products
pursuant to this Section 5.02(a), and (ii) Buyer does not
make payment to Seller for such Products within fifteen
(15) days after the receipt by Buyer of written notice from
Seller of such failure, Seller shall have no obligation to
ship any Products to Buyer hereunder until such time as
Buyer remits such payment to Seller.
(b) Annual Support Fees - Payment for Annual Support Fees
ordered by Buyer shall be due within thirty (30) days of
receipt of Seller's invoice given in accordance with
Exhibit 2.
(c) Timely Payment - Past due amounts shall bear interest from
the expiration of such period at the rate of one and
one-half percent (1 1/2%) per month (or such lesser rate as
may be the maximum permissible rate under applicable law).
(d) Taxes - Buyer's price for Products as reflected in this
Agreement does not include any taxes, duties or charges of
any kind imposed by any federal, state or local governmental
entity on the sale or shipment to Buyer of Products,
excluding only those taxes based solely on Seller's net
income. When Seller has the legal obligation to collect
such taxes, the appropriate amount shall be added to Buyer's
invoice and shall be paid by Buyer unless Buyer provides
Seller with a valid tax exemption certificate authorized by
the appropriate taxing authority.
5.03 Forecasts and Purchase Orders
(a) Within thirty (30) days after the Effective Date, Buyer will
provide Seller with a written, non-binding Forecast
estimating the Products Buyer will purchase during the
period of twelve (12) consecutive calendar months commencing
on the Effective Date. Buyer will update such Forecast
monthly in order to provide Seller with a twelve month
rolling view of prospective purchases by Buyer. The
Forecasts shall not be binding and only are intended to give
the Parties an estimate of future purchases for planning
purposes.
(b) Products to be procured hereunder, as well as the Ship Date,
shall be listed in a Purchase Order issued by Buyer pursuant
to this Agreement and subject to the Forecast process listed
above. Each Purchase Order shall specifically reference this
Agreement, and time
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is of the essence in connection with the performance of
each Purchase Order. Any Purchase Order issued by Buyer
to Seller for Products shall be governed in all respects
by the terms and conditions of this Agreement. A form of
Purchase Order is attached hereto as Exhibit 7. Buyer and
Seller agree that, except for non-conflicting
administrative terms as provided below, any additional or
preprinted terms or conditions on a Purchase Order shall
be null, void and of no effect. Each Purchase Order shall
specify, in addition to other appropriate information as
may be mutually agreed upon:
(i) name and address of Buyer, or Buyer Affiliate;
(ii) Buyer Purchase Order number and Purchase Order date
of issuance;
(iii) name and address of Seller, or as appropriate,
Seller Affiliate, which shall be an Affiliate set
forth in the Exhibit 1, that will be providing
Product being ordered;
(iv) incorporation within, by reference, this Agreement;
(v) types and quantities of Product to be furnished by
Seller as set forth in Exhibit 2 or as provided in
a Quotation;
(vi) applicable prices, charges, and fees with respect
to such Product as set forth in Exhibit 2 or as
provided in a Quotation;
(vii) location or facility to which Product is to be
delivered;
(viii) Ship Date of Product;
(ix) billing address of the Party responsible for the
payment whether it is the Buyer, or Buyer Affiliate
to which Buyer intends to resell the Product, if
any, and other information required under this
Agreement to be included in a Purchase Order;
(x) proper authorization of Buyer or Buyer's agent
(c) Seller is obligated to accept all Purchase Orders issued by
Purchaser under this Agreement except those Purchase Orders
which (i) are missing the material terms required by this
Article to be contained in a Purchase Order or call for
delivery of Products in an amount which is in excess of [*]
more than the amounts contained in the Forecast for the month
for which such a Purchase Order is issued or (ii) have Ship
Dates that materially vary from Standard Intervals. All
Purchase Orders shall be deemed to have been accepted by
Seller unless (i) Seller notifies Buyer in writing within
fifteen (15) business days of receipt of a Purchase Order
that it will not accept such Purchase Order and (ii) Seller
may rightfully decline to accept such Purchase Order pursuant
to the immediately preceding sentence. Any Purchase Order not
rightfully rejected shall be deemed to be accepted by Seller.
A Purchase Order submitted pursuant to the terms and
conditions of this Agreement, and which Seller has accepted,
shall constitute an Agreement between Buyer and Seller. Any
Purchase Order for which Seller gives timely notice of
non-acceptance if non-acceptance is permitted under this
Section shall be deemed void. The Product quantities listed
on any Purchase Order which conforms to the terms and
conditions of this Agreement, which are consistent with
Forecasts including any permitted variance to such Forecasts
and (i) which are not accepted by Seller pursuant to the
first sentence of this clause (c) or (ii) which are cancelled
by Buyer in accordance with Section 5.05(c) hereof, shall be
counted toward the Initial Purchase Commitment.
(d) In addition to changes allowed in the Forecast process set
forth in Section 5.03 and
[*] Confidential Treatment Requested
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changes pursuant to Sections 5.05 and 5.06, Buyer may at any
time request additions, alterations, deductions, or
deviations to a Purchase Order subject to the condition
that such changes and any adjustments resulting from such
changes, including but not limited to schedules and prices,
shall be mutually agreed upon, and if so agreed,
subsequently detailed in a written revision to the
applicable Purchase Order ("Change Order") signed by a
designated Buyer representative and Seller representative.
Change Orders which are processed outside of Seller's
customary processing cycle or which require additional work
by Seller to comply with such changes may be subject to a
reasonable change fee provided Seller has given Buyer a
written quote for such change fee and Buyer and Seller have
mutually agreed to such change fee in writing prior to or
concurrent with execution of the Change Order. If Buyer
fails to accept the change fee. Seller has no obligation to
accept or comply with the Change Order.
(e) Purchase Orders may be issued either electronically, such as
through electronic data interchange, or via traditional
manual methods, as mutually agreed to by the Parties.
5.04 Delivery - Delivery of Products under this Agreement shall be F.O.B.
Seller's specified facilities. The Seller shall: (a) be responsible
for and arrange for shipment of the Products to Buyer's site as
specified in the Purchase Order applicable thereto; (b) prepay all
shipping and handling charges for the Products; and (c) invoice Buyer
for such charges upon shipment of all the Products specified in a
Purchase Order. Buyer shall reimburse Seller for such charges at
Seller's actual cost. Seller shall be responsible for repair or
replacement of any Products damaged in shipment without cost to
Buyer, and Seller shall file all claims for transportation damage. If
any Product is lost, or damaged in transit, Seller shall use all
commercially reasonable best efforts to supply a replacement within
the shortest possible time at the same price and terms as applicable
to the original Purchase Order.
All shipments are subject to the following conditions:
(a) Partial shipments or early shipments may only be sent by
Seller if Buyer has approved such partial or early shipments
in writing and in advance;
(b) Seller shall notify Buyer, via e-mail as directed by Buyer,
when orders are shipped;
(c) The outside of all packing cartons shall be clearly marked
with (i) model name or number, (ii) part number, (iii) serial
number, when applicable, in barcode and human readable format
(iv) Buyer Purchase Order number and (v) Buyer part number;
(d) Packing slips shall accompany shipment and shall include
serial numbers, when applicable, in barcode and human
readable format and shall reference Buyer's Purchase Order
number;
(e) Shipment sent via truck load or less than truck load shall
be stretch wrapped on pallets with markings facing outwards;
and
(f) Buyer may, at its discretion, (i) reject shipments that do
not comply with the preceding shipping requirements or (ii)
apply as a credit against amounts due to Seller, Buyer's
reasonable labor costs arising from Seller's failure to
comply with the preceding shipping requirements.
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(g) Seller shall not ship Products more than five (5) business
days prior to the requested and accepted Ship Date in the
Purchase Order without the consent of the Buyer. Subject to
the immediately preceding sentence, in the event Seller
ships Products to the Buyer prior to the Ship Date in the
Purchase Order, Seller shall provide Buyer with reasonable
advance notice of the date on which Seller intends to
deliver such Products.
(h) In the absence of specific shipping instructions from Buyer,
Seller may ship by the method it deems most advantageous;
provided however that Buyer shall not reimburse Seller for
the costs of overnight courier or other expedited shipping
unless Buyer has agreed in advance to pay such costs for
such Purchase Order in writing.
(i) Title to the Product (excluding Software) and risk of loss
shall pass to Buyer upon shipment to Buyer.
(j) Buyer shall inspect the Product upon delivery and shall
advise Seller in writing of any obvious physical defects,
discrepancies, and/or shortages observed between the Product
physically inspected and the corresponding Product shipment
packing list provided by Seller. Buyer shall issue to Seller
a defect/discrepancy written report within fifteen (15)
business days of receipt of Product. If no such report is
issued to Seller within fifteen (15) business days the Buyer
shall be deemed to have accepted the Products as delivered.
(k) Buyer shall store all Products at the proper temperature and
other environmental conditions, as specified in the Product
Specifications, to maintain Product quality. In the event of
damage to any Product, for reason of improper storage,
thereby rendering Product unfit for intended use, Buyer
shall promptly notify Seller in writing of the facts, and
shall not use such Product except as directed by Seller.
(l) For all deliveries after January 1, 2000, if any shipment
of Products to Buyer by Seller occurs more than ten (10)
business days following the Ship Date in the accepted
Purchase Order and such delay is not caused by a force
majeure event, such delivery shall be a "Late Shipment."
(m) Not later than thirty (30) days prior to the Ship Date
relating to Product covered by a Purchase Order, Buyer may
notify Seller in writing that (i) Buyer does not wish to
receive shipment of any Products on the date set forth in
such Purchase Order, or (ii) Buyer's facilities are not
prepared in sufficient time for Seller to make delivery on
such date. In either case, Seller shall delay delivery as
requested by Buyer. Seller may, subject to Buyer's consent,
store such Products in a commercially reasonable manner
consistent with the storage requirements set forth in the
Product Specifications at Buyer's risk of loss. Buyer shall
reimburse Seller for reasonable out-of-pocket storage and
shipping fees associated with such delay.
5.05 Cancellation
(a) Subject to Section 5.05(b), upon written notice to Seller,
Buyer may cancel all or any part of a Purchase Order if
Seller receives a written and dated Purchase Order
cancellation notice before the Ship Date.
(b) Buyer shall pay cancellation charges based on the date a
Purchase Order cancellation notice is received by the Seller,
and such cancellation charges shall not exceed the
schedule as shown below (such charges shall be the sole and
exclusive remedy of the Seller with respect to cancellation
of Purchase Orders pursuant to this section 5.05):
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Days Prior Notice of PO Cancellation Order Cancellation Charge
------------------------------------ -------------------------
Greater than 60 days before Ship Date or within None
30 Days of Purchase Order
Greater than 30 and less than 60 days before Ship Date 20% of the Purchase Price
Less than 30 days before Ship Date 50% of the Purchase Price
(c) In the event that ten (10) days after the requested Ship
Date for any Purchase Order Seller has not shipped the
Products subject to such Purchase Order, Buyer shall
have the right to cancel such Purchase Order without
cost or charge upon written notice to Seller by
facsimile, e-mail or otherwise. Seller shall notify
Buyer via e-mail if Seller is unable to ship Products on
the Ship Date. Seller shall pay any additional costs
required to expedite late shipments.
5.06 Change of Purchase Orders. Buyer may delay shipment of Product
without penalty as follows:
(a) Buyer may delay shipment of the first 250 RPSs until
June 30, 2000.
(b) Buyer may delay shipment of the next 750 RPSs until
December 31, 2000.
(c) After the first 1000 RPSs are delivered, Buyer may delay
shipment of Product for up to six (6) months for each
Purchase Order issued thereafter as set forth below;
provided, however, Buyer may not delay shipment of
Products less than thirty (30) days before the Ship Date
unless mutually agreed upon:
(i) During the first six (6) months after the first
1,000 RPSs are delivered, up to fifty percent
(50%) of any Purchase Order.
(ii) During the following six (6) months, up to forty
percent (40%) of any Purchase Order.
(iii) During the following six (6) months, up to thirty
percent (30%) of any Purchase Order.
(iv) Remainder of term, up to twenty percent (20%) of
any Purchase Order.
(d) Seller will not invoice Buyer for Products subject to
the above delays until such Products are actually
shipped to Buyer.
5.07 Invoicing. Each invoice shall include (a) Buyer's Purchase Order
number, (b) Seller's invoice number, (c) quantity and price of
each item shipped or services rendered, (d) applicable sales or
other tax, (e) freight charges (if applicable) and (f) final total
cost.
5.08 Resale Rights. Buyer shall have an unlimited right to resell the
Products to its Affiliates or as part of a service arrangement or
business arrangement with Third Parties if the Equipment is to be
used in such service or business arrangement; provided, however,
that Buyer is not permitted to sell to a direct competitor of
Seller. Seller has right of first refusal for sales which are not
to an Affiliate of Buyer or part of a service or business
arrangement (other than for sales pursuant to a foreclosure by any
Third Party on such Third Party's security interest) provided
Seller purchases on identical terms and conditions. Any Software
License, warranty and prepaid Annual Support Fees are transferable
with the sale of Equipment to the extent the foregoing provisions
are applicable to Buyer.
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ARTICLE 6. EQUIPMENT CHANGES
Notwithstanding any other provisions contained herein, Seller reserves the
right, upon prior approval from Buyer, to make changes in the Products in whole
or in part, or to substitute Products of later design at any time prior to
delivery thereof, provided that such changes do not adversely affect performance
or function or increase the cost to Buyer and further provided that the changed
or substituted Products meet or exceed Product Specifications. Such changes do
not obligate Seller to make any changes in items of the Products previously
delivered unless such changes affect the interoperability of Products including
Software in Buyer's network in which case such changes to previously delivered
Products, including Software, as are required to maintain the interoperability
and functionality of such Products will be made at Seller's expense.
ARTICLE 7. SOFTWARE LICENSING
7.01 Buyer is granted no title or ownership rights to the Software or
Documentation, which rights shall remain with Seller or Seller's
suppliers, as appropriate. This Agreement does not entitle Buyer to
the receipt or use of, or access to, Software Source Code (except as
set forth in Sections 7.07 and 7.08) or any right to reproduce the
Software or Documentation, and Buyer agrees that it shall not
decompile, reverse engineer or otherwise attempt to gain access to
the Software Source Code. The obligations of Buyer under this section
shall survive the expiration or termination of this Agreement.
Notwithstanding the foregoing, Buyer may reproduce or copy Software
or Documentation for installation, back-up or archival and test
purposes and may provide such copies to Third Parties who provide
installation or maintenance services for Buyer. Buyer will notify
Seller in the event it provides copies of Software to Third Parties.
7.02 Buyer shall be granted a perpetual, non-exclusive, transferable (as
limited by the provisions of this Agreement), non-assessable,
unlimited-user, paid-up license to:
(a) use the Software furnished;
(b) use and make adaptations of the Software (or any part
thereof), subject to the provisions of this Agreement,
provided that any such adaptations are created as an
integral step in the use of the Software in conjunction with
a Product and that it is not used in any other manner;
(c) make as many copies of the Software and any related
Documentation as Buyer deems necessary for its use, archival
purposes, or test purposes, including use by Third Parties
who are acting under the control and direction of Buyer; and
(d) use the associated Software Documentation.
Buyer agrees that the license to use the Software is subject to its
continued use of and ownership of the Equipment upon which such
Software is installed and that Buyer shall have the right to sell,
pledge as security, or otherwise transfer the Equipment upon which the
Software resides and the related Software. Transferee shall be granted
a license to use the Software but no title or ownership rights to the
Software, which rights shall remain in Seller or its suppliers, as
appropriate and upon sale or transfer the terms of this Software
License shall apply to transferee.
7.03 All Software supplied by Seller under or in implementation of this
Agreement shall be treated by Buyer as the exclusive property, and to
the extent not publicly available, as proprietary and a trade secret,
of Seller and/or its suppliers, as appropriate
7.04 Seller may, from time to time, issue new Software Releases, including
Major Software Releases,
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which shall be made available to Buyer as part of the Annual Support
Fee and without additional cost or expense to Buyer.
7.05 The Software Releases shall be updated periodically throughout the
Term of this Agreement. Once an updated Software Release is
available, it shall be made available to Buyer subject to the terms
of this Agreement.
7.06 From the date of this Agreement through December 31, 2000, Seller
shall provide a special "Founding Customer Service Package" which
provides Buyer with the "Gold Level" support as defined in Exhibit 2
hereto [*] to the Buyer. Subsequent to December 31, 2000, during the
term of this Agreement, Seller shall provide its "Bronze Level"
support as defined in Exhibit 2 hereto at no charge to the Buyer.
After the "Gold Level" support has concluded, for the two (2) week
period following the issuance of a new Software Release, Seller shall
provide Buyer with access to dedicated technical assistance center
personnel twenty-four (24) hours per day, seven (7) days per week
with immediate response time.
7.07 No later than thirty (30) business days after Seller delivers
Software to Buyer, Seller shall, [*] place a copy of all Software
source code, including copies of the source code for any upgrades or
new releases developed by Seller in the future when they are
available (collectively "Source Code"), with an independent escrow
agent reasonably acceptable to Buyer along with written escrow
instructions to deliver all Source Code to Buyer upon request from
Buyer without further instructions in the event Seller declares
bankruptcy, or is involuntarily bankrupt. The Source Code shall be
designated in writing as being held in escrow for Buyer. The escrow
agent shall hold the Source Code for the Term of the Agreement. If,
at any time, Seller declares bankruptcy, or is involuntarily
bankrupt, upon notice from Buyer, the escrow agent shall immediately
transfer the Source Code to Buyer. Possession of the Source Code does
not give Buyer any rights to sell, rent or lease the Source Code or
Software to Third Parties.
7.08 In the event Seller no longer supports past releases of Software and
Buyer requires such unsupported Software to operate Equipment in
Buyer's network, Seller shall, within [*] days of Buyer's request,
provide Buyer with the Source Code for the unsupported Software to
enable Buyer to support the Equipment in its network. Possession of
the Source Code does not give Buyer any rights to sell, rent or lease
the Source Code or Software to Third Parties.
7.09 [*] Software Releases must be Backwards Compatible.
7.10 Repair and return of Equipment is [*] based on serial number with
[*] day turnaround from receipt at factory to return shipment.
ARTICLE 8. WARRANTIES
8.01 Seller Supplied Equipment
(a) Seller warrants for a period ending on (i) the later of
fifteen (15) months from the Ship Date or twelve (12) months
after installation for the first 1,000 RPSs; or (ii) fifteen
(15) months from the Ship Date for all RPSs delivered after
the first 1,000 RPSs, that under normal use and service the
Equipment subject to this Agreement will be free from
material defects or faulty workmanship, and shall operate in
compliance with the applicable Product Specifications. In the
event the Buyer changes its network configuration in a manner
that causes the Equipment not to operate in compliance with
the applicable Product Specifications, the Seller shall use
commercially reasonable
[*] Confidential Treatment Requested
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efforts to modify the Equipment so that it will so operate and
the parties shall negotiate in good faith applicable
amendments to the Product Specifications and the cost of
Product if necessary. The foregoing warranty shall not apply
to items normally consumed during operation such as, but not
limited to, lamps and fuses. [*] Equipment will be Backwards
Compatible with [*] other Equipment and Software. If Equipment
is not free from material defects or faulty workmanship or
fails to comply with the applicable Product Specification
during the warranty period, or is not Backwards Compatible as
required by the immediately preceding sentence, Seller will,
at its option, repair, replace, or modify the Equipment so
that it is free from defects and does comply with the
applicable Product Specifications and is so Backwards
Compatible. The warranty service shall be performed at
Seller's facility. If Seller is unable to repair or modify the
Equipment within a reasonable period of time so that the
Equipment conforms to the applicable Product Specification and
is so compatible, Seller shall replace the Equipment with
Equipment that conforms to such Product Specification and is
so compatible. In such cases Seller does not guarantee that
equipment with like serial numbers will be returned to the
Buyer but such replacement Equipment shall meet all Product
Specifications and provide the same function as the Equipment
it replaces. Seller's sole obligation and Buyer's exclusive
remedy under the warranty provisions of this Article with
respect to Equipment shall be limited to repair, modification,
or replacement of the defective or non functioning Equipment
or refund if Equipment cannot be provided which complies with
Product Specifications.
(b) The warranties set forth in this Article shall not apply to
any Products where the defect or non-conformance is due to:
(i) accident, alteration, abuse, misuse, or
repair not performed by Seller or Seller qualified
technician, provided that Seller will approve agreed
upon employees of Buyer and its agents as qualified
technicians;
(ii) storage other than as set forth in the
Product Specification;
(iii) failure to comply with all applicable
environmental requirements for Product as set forth
in the Product Specification, including but not
limited to temperature or humidity ranges;
(iv) performance of Product installation,
maintenance, operation, repair, relocation, or other
service not in compliance with Product
Specifications, unless such non-complying service was
performed by Seller or on Seller's behalf;
(v) breakage, damage, alteration, or removal of
any Seller affixed seal or label located on the RPS
without the Seller's written approval. The RPSs
contain no Buyer serviceable parts;
(vi) use in conjunction with a product specified
by Seller as incompatible with such Products;
(vii) any error, act, omission, vandalism,
mishandling or misuse by anyone other than Seller or
Seller's agents, employees, vendors, and
subcontractors; or
(viii) where written notice of the defect has not
been given to Seller within the applicable warranty
period.
(c) Buyer shall be responsible for de-installation and
re-installation of any warranty repair or replacement
Equipment. Buyer shall use qualified technicians to perform
any
[*] Confidential Treatment Requested
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maintenance and/or repair to the Product during the warranty
period, where such maintenance and/or repair shall be confined
to tasks performed in accordance with Seller provided
Documentation.
(d) A return material authorization (RMA) must be obtained by
Buyer from the Seller prior to the return of any Product.
Seller shall not unreasonably delay or withhold issuing any
RMA to Buyer. Information regarding the RMA process is
provided in Exhibit 3.
(e) Warranty replacement Equipment may be new or reconditioned to
perform as new, at Seller's option. Notwithstanding the
foregoing, the warranty period of Equipment which has been
subject to repair or replacement by Seller shall commence upon
the Delivery Date of the repaired or replacement Equipment to
Buyer and shall expire on the later of one hundred twenty
(120) days from the Delivery Date or the last day of the
original warranty period with respect to the Equipment which
was repaired or replaced.
(f) All Equipment to be repaired or replaced, whether in or out of
warranty, shall be packed by Buyer in accordance with Seller's
reasonable instructions and shall follow Seller's reasonable
repair and return policy and procedures. Buyer shall bear risk
of loss and shall pay for all transportation charges for
Equipment returned to Seller and Seller shall bear such risk
and pay for transportation charges for repaired or replacement
Equipment shipped to Buyer. Seller shall use reasonable
efforts to ship repaired or replacement Equipment within
thirty (30) days of receipt of the defective Equipment. Seller
shall return the repaired or replaced Equipment to the Buyer
by the same transport method in which the Buyer sent the
Equipment to the Seller.
(g) If the Equipment that is returned to Seller is determined by
Seller to be beyond repair and is outside the warranty period,
Seller shall notify Buyer and Seller shall upon request from
Buyer sell Buyer replacement Equipment at the then current
Agreement price between the Parties for such Equipment, or if
no such Agreement exists, at the last price paid for such
Product.
(h) Seller shall maintain an adequate inventory of spare parts to
repair and replace all Products for a period beginning on the
date of this Agreement and ending on the fifth (5th)
anniversary of the termination of this Agreement or, if
longer, as otherwise provided by law.
8.02 Third Party Products
(a) With respect to any Third Party Products furnished by Seller
to Buyer, Seller shall secure from the applicable
manufacturers such warranties and indemnities as may be
available with respect to such Third Party Products, and
assign and pass through to Buyer all available warranties and
indemnities for such Third Party Products to the extent
legally assignable. In the event such warranties and
indemnities are not assignable to Buyer, Seller shall enforce,
if necessary, such warranties and indemnities on Buyer's
behalf. In addition to the above, Seller shall, at Buyer's
request, register Buyer with any and all Third Party Products
vendors (for Third Party Products that constitute systems as
opposed to individual components) such that Buyer is
acknowledged as a support obligation of the Third Party
Products vendors and Buyer can receive and obtain product
notices directly from the Third Party Products vendors. Seller
shall produce evidence of such registration within sixty (60)
calendar days from the date Buyer requests that Seller obtain
such registration.
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(b) All Third Party Products unless otherwise stated in this
Agreement, or in the Third Party warranties, will follow the
same repair and return procedures as noted in Article 8.01.
8.03 Software
(a) Seller warrants for a period ending on (i) the later of
fifteen (15) months from the Ship Date or twelve (12) months
after installation for the first 1,000 RPSs; or (ii) fifteen
(15) months from the Ship Date for all RPSs delivered after
the first 1,000 RPSs, that under normal use and service the
Software shall (i) perform the necessary provide the full
functionality described in the Documentation and Product
Specifications and (ii) be Backwards Compatible with all other
Products. In the event the Buyer changes its network
configuration in a manner that causes the Software not to
operate in compliance with the applicable Product
Specifications, the Seller shall use commercially reasonable
efforts to modify the Software so that it will so operate and
the parties shall negotiate in good faith applicable
amendments to the Product Specifications. Seller represents
and warrants that, to the best of its knowledge, any Software
provided by Seller hereunder does not contain and will not
receive from any Seller data transmission via modem or other
Seller medium, any virus, worm, trap door, back door, timer,
clock, counter, or other limiting routine, instruction, or
design that would erase data or programming or otherwise cause
the Software or Equipment to become inoperable or incapable of
being used in the full manner for which it was designed and
created (but specifically excluding locking mechanisms
designed to prevent Buyer from using those Software features
or functions not licensed to Buyer under the terms of this
Agreement, referred to as "disabling code") including, without
limitation, any limitations that are triggered by:
(i) the Software being used or copied a certain number
of times, or after the lapse of a certain period of
time;
(ii) the Software being installed on or moved to a central
processing unit that has a serial number, model
number, or other identification different from the
central processing unit on which the Software was
originally installed; or
(iii) the occurrence or lapse of any similar triggering
factor or event.
(b) In the event Seller introduces a disabling code into the
Software, Seller shall:
(i) take all steps necessary at Seller's sole cost to
test a new copy of the Software for the presence of
disabling codes;
(ii) furnish to Buyer a new copy of the Software without
the presence of disabling codes;
(iii) install and implement such new copy of the Software
at no additional cost to Buyer; and
(iv) take all steps necessary, at Seller's sole cost, to
restore any and all data or programming lost by
Buyer as a result of such disabling code. In the
event disabling codes are identified by Buyer or
Seller in the Software, Seller shall furnish to Buyer
a new copy of the Software without the presence of
disabling codes.
(c) Seller warrants all Software is Y2K compliant as set forth in
Exhibit 5.
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8.04 All Products. For all Products to be sold to Buyer under this
Agreement, Seller represents and warrants that the Products and
Buyer's ownership and use of such Products will not infringe upon
or misappropriate the intellectual property rights of any party and
no party shall have the right to seek damages from Buyer or enjoin
Buyer's right to use such Products.
8.05 THE WARRANTIES SET FORTH ABOVE CONSTITUTE THE ONLY WARRANTIES WITH
RESPECT TO THE PRODUCTS PROVIDED. THEY ARE IN LIEU OF ALL OTHER
WARRANTIES WRITTEN OR ORAL, STATUTORY, EXPRESS. IMPLIED OR
OTHERWISE, INCLUDING WITHOUT LIMITATION THE WARRANTY OF
MERCHANTABILITY AND THE WARRANTY OF FITNESS FOR A PARTICULAR
PURPOSE.
8.06 The terms of this Article shall survive any expiration or
termination of this Agreement.
ARTICLE 9. PATENT AND COPYRIGHT INFRINGEMENT INDEMNITY
9.01 Indemnification - Seller agrees to indemnify Buyer, as set forth
herein, with respect to any suit, claim, or proceeding brought
against Buyer alleging that Buyer's use of the Equipment or Software
constitutes an infringement of any United States or foreign patent,
copyright, trademark, trade secret or other intellectual property
rights. Seller agrees to defend Buyer, at Seller's expense,
against any such claims and to pay all settlement payments, costs
and legal expenses, including reasonable attorneys' fees, and any
damages awarded in any final judgment arising from such suit, claim
or proceeding; provided, however, that Buyer shall promptly advise
Seller of any such suit, claim, or proceeding and shall reasonably
cooperate with Seller in the defense or settlement of such suit,
claim or proceeding; provided further that Seller shall have sole
control thereof; and provided further that in those circumstances
where Seller's control of the defense may materially affect Buyer's
network and operations, Seller agrees to consult with Buyer in good
faith to obtain Buyer's input into appropriate defense methods. The
obligation of Seller hereunder with respect to any infringement
claim shall not apply to infringement claims based on:
(a) use of Product by Buyer in a manner, including combinations
with other products not provided by Seller, not contemplated
nor suggested by this Agreement or by Seller's product
documentation existing as of the Effective Date of this
Agreement;
(b) use of Product by Buyer in any other combination with other
products not provided by Seller, unless Seller would
otherwise normally be liable for such a combination as a
direct (or on the basis of contribution or inducement)
infringement, or unless the products not provided by Seller
are those products normally used in connection with
providing communication services over Buyer's network, and
provided that but for the existence of such combination by
Buyer, there would be no infringement claim;
(c) use of Product in a Territory other than that for which it
has been specified in Exhibit 4 to this Agreement;
(d) modifications made by Buyer without Seller's consent;
(e) Buyer's use of Equipment supplied by Third Parties;
(f) Seller's use of specifications or designs (except
specifications or designs which are or become industry
standards or are used by Seller in a Product that is
supplied to other customers) which are supplied by Buyer to
Seller for use in Seller Products to he purchased under this
Agreement provided that but for such use by Seller there
would be no infringement claim and further provided that the
Seller team providing the custom
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development and the Seller employees assigned to the Buyer
account team shall use all commercially reasonable best
efforts, without violating any Third Party confidentiality
obligations, to determine whether the requested
specification or design would violate any Third Party
patent, copyright, trademark, or other intellectual
property right and provide notice to Buyer of such knowledge
as soon as reasonably possible; and
(g) The foregoing exclusions shall not apply to use of Products,
Equipment or Software in Buyer's data communications network
if Buyer and Seller have discussed the use and
implementation of Seller's Product with other products not
provided by Seller and Buyer has purchased Products for use
in its network in a manner consistent with such discussions.
9.02 Injunction - In the event that an injunction is obtained against
Buyer's use of Equipment or Software arising from such patent or
copyright suit, claim or proceeding, in whole or in part, Seller
shall, at its option, either:
(a) procure for Buyer, at Seller's sole cost and expense, the
right to continue using the portion of the system enjoined
from use; or
(b) replace or modify, at Seller's sole cost and expense, the
same so that Buyer's use is not subject to any such
injunction.
If, after using commercially reasonable best efforts, Seller is not able to
achieve any of the above remedies, Seller shall refund the purchase price of
Product and pay for the de-installation of Seller's Product. Thereupon,
neither Party shall have any further liabilities or obligations under this
Agreement.
9.03 Limitation of Liability- THE FOREGOING STATES THE ENTIRE LIABILITY OF
SELLER FOR PATENT OR COPYRIGHT INFRINGEMENT BY THE EQUIPMENT OR
SOFTWARE. THE REMEDIES CONTAINED HEREIN ARE BUYER'S SOLE REMEDY FOR
ANY CLAIM OF INFRINGEMENT OF THIRD PARTY PATENT, COPYRIGHT,
TRADEMARK, TRADE SECRET OR OTHER INTELLECTUAL PROPERTY RIGHTS.
9.04 The terms of this Article shall survive any expiration or termination
of this Agreement.
ARTICLE 10. CONFIDENTIALITY
10.01 Confidentiality - All terms and conditions of that certain Mutual
Confidentiality and Non-Disclosure Agreement dated as of January 20,
1998 (the "Confidentiality Agreement") executed between Buyer and
Seller are hereby incorporated herein by this reference and shall
survive any expiration or termination of the Confidentiality
Agreement.
10.02 Release of Information - Neither Party shall, without the express
written consent of the other Party, publicly announce the existence
or terms of this Agreement or advertise or release any publicity or
press release regarding this Agreement except such disclosures that
may be required to comply with securities laws, court order or
similar order of an administrative or regulatory agency provided each
Party shall use reasonable BEST efforts to seek confidential
treatment or other protective orders which are available to limit
such disclosures and provide the other Party with advanced notice of
such disclosures. Notwithstanding the foregoing, either Party shall
be entitled to disclose this Agreement and its specific terms and
conditions to its financing sources, including prospective financing
sources and to its auditors, attorneys and other agents in the normal
course of its business; provided that such financing sources,
auditors, attorneys and other agents keep such information
confidential.
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ARTICLE 11. LIMITATION OF LIABILITY
11.01 General - THE TOTAL LIABILITY OF SELLER FOR ALL CLAIMS OF ANY KIND
FOR ANY LOSS OR DAMAGE, WHETHER IN AGREEMENT, WARRANTY, TORT
(INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, OR CLAIMS FOR
INDEMNIFICATION ARISING OUT OF, CONNECTED WITH, OR RESULTING FROM THE
PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENT EXCEPT FOR ARTICLE
9, ARTICLE 10, [*] SELLER'S OBLIGATION TO INDEMNIFY BUYER FOR
INFRINGEMENT CLAIMS SHALL IN NO CASE EXCEED THE TOTAL PRICE OF ALL
PURCHASE ORDERS ACCEPTED UNDER THIS AGREEMENT. NOTWITHSTANDING ANY
PROVISION OF THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE FOR LOST
PROFITS OR LOSS OF DATA OR FOR ANY INCIDENTAL, INDIRECT,
CONSEQUENTIAL, OR SPEC DAMAGES OF ANY NATURE WHATSOEVER FOR ANY
ACTION ARISING UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION,
THOSE RESULTING FROM THE USE OF EQUIPMENT PURCHASED HEREUNDER, OR THE
FAILURE OF THE EQUIPMENT TO PERFORM, OR FOR ANY OTHER REASON. THESE
LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL
PURPOSE OF ANY LIMITED REMEDY.
11.02 Specific Exclusions - Subject to the terms of this Agreement, Seller
shall not be responsible for any failures or inadequacies of
performance resulting from products not supplied by Seller. Seller
shall not be responsible for interference or disruption of service
caused by operation of other radio systems, lightning, motor ignition
or other similar interference. In the event Buyer utilizes facilities
or services supplied by others such as common carrier circuits,
antennas or towers, Buyer shall have the total responsibility for the
availability or adequacy of such services or facilities. Seller shall
have no liability as a result of non-performance, failures or poor
performance of the Product caused by, resulting from or attributable
to Buyer provided designs, specifications or Product configuration
requirements that have not been discussed with and approved by Seller
or failures caused by improper installation by Buyer.
11.03 The terms of this Article shall survive any expiration or termination
of this Agreement.
ARTICLE 12. MISCELLANEOUS
12.01 Applicable Law - The validity, construction, and performance of this
Agreement shall be governed by and interpreted in accordance with the
laws of the State of New York without giving effect to the principles
of conflict of laws thereof except to the extent that any mandatory
provisions of local laws in any country take precedence over the
provisions of this Agreement and New York State law. Jurisdiction
will reside in the federal courts located in Orange County, FL, USA,
King County, WA, USA. In the event of a dispute between the Parties
relating to this Agreement, the Parties shall make good faith efforts
to resolve such dispute through direct negotiations; provided, that
this provision shall in no way limit the rights of the Parties at any
time to pursue resolution through arbitration, judicial proceedings
or any other means of dispute resolution. Nothing in this
subparagraph precludes the Parties from agreeing to submit the
dispute for resolution by arbitration under conditions and procedures
to which they agree in advance.
[*] Confidential Treatment Requested
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12-02 Assignment - Other than as explicitly stated in this Agreement,
neither Party may assign or transfer this Agreement, or any of its
rights hereunder, without the prior written consent of the other
Party, which consent shall not be unreasonably withheld. Buyers
consent shall not be required for any assignment or transfer by
Seller to any Third Party for all or a part of Seller's right to
receive any monies ("Receivables") which may become due to Seller
pursuant to this Agreement. Consent shall also not be required for
the following transactions if the transactions do not involve a
direct competitor of the non-assigning Party: (a) a reorganization,
merger, consolidation or other form of corporate transaction or
series of transactions, (b) the sale of all or substantially all of
the assets of the Buyer or the Seller, or (c) the acquisition of all
or substantially all the outstanding equity of the Buyer or the
Seller.
Any assignment or transfer in violation of this Agreement shall be
void. Seller reserves the right to refuse to honor any assignment or
sublicense which, in the opinion of its legal counsel, would require
it to violate any United States export restriction, other law, or
regulation.
12.03 Consents - Each Party hereto represents and warrants that:
(a) it has obtained all necessary approvals, consents, and
authorizations of Third Parties and governmental authorities
to enter into this Agreement and to perform and carry out
its obligations hereunder;
(b) the persons executing this Agreement on its behalf have
express authority to do so, and, in so doing, to bind the
Party thereto;
(c) the execution, delivery, and performance of this Agreement
has been duly authorized by all necessary partnership or
corporate action and this Agreement is a valid and binding
obligation of such Party, enforceable in accordance with its
terms;
(d) On the Effective Date, Buyer has the necessary FCC
authorizations to use the relevant radio spectrum; and
(e) In the case of Seller, that Seller has obtained all
necessary government approvals for manufacture and sale of
Equipment.
12.04 Counterparts and Facsimile Signatures - This Agreement may be
executed in multiple counterparts, each of which shall be deemed an
original and all of which taken together shall constitute one and the
same instrument. Facsimile signatures shall have the same effect as
original signatures, but any Party transmitting a signature by
facsimile shall promptly follow up with a copy of the same document
bearing the original signature of that Party.
12.05 Entire Agreement - This Agreement, including the Exhibits which are
attached hereto and incorporated herein, comprises all the terms,
conditions, and agreements of the Parties hereto with respect to the
subject matter hereof and supersedes all previous negotiations,
proposals, commitments, writings, publications, and understandings of
any nature whatsoever. No agent, employee, or representative of
Seller or Buyer has any authority to bind Seller or Buyer,
respectively, to any affirmation, representation, or warranty, except
as stated in this Agreement and unless such affirmation,
representation, or warranty is specifically included within this
Agreement it shall not be enforceable by Buyer or Seller, as
applicable, or any assignee or sub-licensee of Buyer or Seller, as
applicable. Buyer and Seller each hereby acknowledge and agree that
Buyer and Seller, respectively, has not relied on any representations
or warranties other than those expressly set forth in this Agreement.
--------------------------------------------------------------------------------
Triton Network Systems, Inc. Confidential 20
Supply Agreement No. ___________ December 21. 1999 G2.0
21
12.06 Export - Buyer shall not export any Product or technical data
received from Seller pursuant to this Agreement, or release any such
Product or technical data with the knowledge or intent that such
Product or technical data will be exported or transmitted to any
country or to foreign nationals of any country, except in accordance
with applicable laws or regulations concerning the exporting of such
items arising in the U.S. or other such jurisdiction affecting the
Product. Buyer shall obtain all authorizations from the appropriate
government in accordance with applicable law prior to exporting or
transmitting any such Products or technical data as specified above.
Seller will provide such assistance as Buyer reasonably requests to
obtain such authorizations. Buyer acknowledges that the transfer of
Products or components thereof outside of Canada or the United States
may be subject to the specific approval of the applicable Product
suppliers and other suppliers. All such approvals, if applicable,
shall be conditions precedent to any of the obligations of Seller
hereunder respecting such Product or components thereof.
12.07 Factoring - Seller may, upon notice to Buyer and subject to Buyer's
consent which may not be unreasonably withheld, sell receivables to a
Third Party or Affiliate.
12.08 Force Majeure - If the performance by a Party of any of its
obligations under this Agreement shall be prevented, restricted, or
interfered with by reason of any circumstances beyond the reasonable
control of that Party, including without limitation, fire, explosion,
embargoes, government ordinances or requirements, civil or military
authorities, acts of God or of the public enemy, war, revolution,
civil commotion, acts or omissions of carriers, loss of sources of
energy, power failure, breakdown of machinery, or labor difficulties
of third parties, including without limitation, strikes, slowdowns,
picketing, or boycotts, or other causes beyond the reasonable control
of the Party whose performance is affected, then the Parry affected,
upon giving prompt notice to the other Party, shall be excused from
such performance on a day-for-day basis to the extent of such
prevention, restriction, or interference (and the other Party shall
likewise be excused from performance of its obligations on a
day-for-day basis to the extent such Party's obligations relate to
the performance so prevented, restricted or interfered with),
provided that the Party so affected shall use reasonable efforts to
avoid or remove such causes of non-performance and both parties shall
proceed to perform their obligations with dispatch whenever such
causes are removed or cease. With respect to labor difficulties as
specified above, a Party shall not be obligated to accede to any
demands being made by employees or other personnel.
12.09 Headings - All headings used herein are for index and reference
purposes only, and shall not be given any substantive effect. This
Agreement has been created jointly by the Parties and no rule of
construction requiring interpretation against the drafter of this
Agreement shall apply in its interpretation.
12.10 Litigation Expense - The Party prevailing in arbitration, at trial,
or on appeal shall be entitled, in addition to such other relief as
may be granted, to a sum the court or arbitration may fix as
reasonable attorneys' fees, plus any associated costs.
12.11 Modification of Agreement - No addition to or modification of this
Agreement shall be effective or binding on either of the Parties
hereto unless reduced to writing and executed by the respective duly
authorized representatives of each of the Parties hereto.
12.12 Non-Waiver - The failure by either Party hereto at any time to
require performance by the other Party or to claim a breach of any
provision of this Agreement shall not be construed as affecting any
subsequent breach or the right to require the performance with
respect thereto or to claim a breach with respect thereto.
--------------------------------------------------------------------------------
Triton Network Systems, Inc. Confidential 21
Supply Agreement No. ____________ December 21, 1999 G2.0
22
12.13 NOTICE - All notices required or permitted to be given hereunder shall
be in writing and shall be delivered to the address listed on the
signature page of this Agreement by (i) certified mail, return receipt
requested, (ii) nationally recognized overnight courier, (iii) telecopy
or (iv) by hand. Any notice given pursuant to this Section shall be
effective five (5) days after the day it is mailed or upon receipt as
evidenced by the Postal Service return receipt card, or courier or hand
delivery written confirmation, or in the case of a telecopy, the
appropriate answerback, whichever is earlier. Either Party hereto may
change its address by a notice given to the other Party hereto in the
manner set forth above. All Purchase Orders and invoices to be delivered
pursuant to this Agreement shall be delivered via a delivery provider
that provides proof of delivery, such as certified mail, overnight mail,
or private courier company.
12.14 REGISTRATION - Product furnished under this Agreement for installation
within the United States shall, at the time of installation, comply to
the extent applicable, with the requirements of the Federal
Communications Commission's Rules and Regulations including, without
limitation, all labeling and customer instruction requirements. Product
furnished under this Agreement for installation outside the United States
shall comply with local governmental regulations, as applicable.
12.15 RELATIONSHIP OF THE PARTIES - The provisions of this Agreement shall not
be construed to establish any form of partnership, agency, or other joint
venture of any kind between Seller and Buyer, nor to constitute either
Party as the agent, employee, or legal representative of the other. All
persons provided by either Party to accomplish the intent of this
Agreement shall be considered solely as the providing Party's employees
or agents and the furnishing Party shall be solely responsible for
compliance with all laws, rules, and regulations involving, but not
limited to, employment of labor, hours of labor, working conditions,
workers' compensation, payment of wages, and withholding and payment of
applicable taxes, including, but not limited to income taxes,
unemployment taxes, and social security taxes.
12.16 SEVERABILITY - If any of the provisions of this Agreement shall be
declared or determined to be invalid or unenforceable under applicable
law and a Party deems such provisions to be material, that Party may
terminate this Agreement upon written notice to the other Party.
Otherwise such invalidity in whole or in part, of any term, covenant,
condition or provision of this Agreement shall not affect the validity of
the remainder of such term, covenant, condition or provision or the
Agreement or render this Agreement unenforceable, but this Agreement
shall be construed as if not containing the particular invalid or
unenforceable provision and the rights and obligations of the Parties
shall be construed and enforced accordingly.
12.17 THIRD PARTY BENEFICIARIES DISALLOWED - All covenants and agreements of
the Parties hereto are solely and exclusively for the benefit of the
Parties to this Agreement and no other person or entity shall have
standing to require performance of any such covenants and agreements, and
no person or entity shall, under any circumstances, be deemed to be a
beneficiary of such obligations.
12.18 INSPECTION - During the Term of this Agreement, Buyer has the right to
inspect the Seller's factory as often as Buyer deems necessary to ensure
quality assurance; provided that Buyer gives Seller reasonable written
notice of such inspection; and provided further that such inspections do
not unreasonably adversely affect the Seller's day-to-day activities at
the factory.
22
23
12.19 CUSTOMER FEATURE REQUESTS - Seller shall use its commercially reasonable
efforts to complete and deliver to Buyer the agreed upon Customer Feature
Requests set forth in the "IFU Software & IFU Management Software Plan"
and the "IFU Hardware Plan" attached as Exhibit 8 hereto in accordance
with such plans.
SIGNATURES
IN WITNESS WHEREOF, the Parties hereto have executed this "Agreement" as of the
"Effective Date" shown above, by their representative(s) being duly authorized
and having signed accordingly.
TRITON NETWORK SYSTEMS INC. ADVANCED RADIO TELECOM CORP.
Signed: /s/ H.W. Speaks, Jr. Signed: /s/ Xxxxxx X. XxXxxxxxxxx
------------------------------- -------------------------------
Name: H.W. Speaks, Jr. Name: Xxxxxx X. XxXxxxxxxxx
------------------------------- -------------------------------
Title: President Title: President
------------------------------- -------------------------------
Date: 12-22-99 Date: 12-22-99
------------------------------- -------------------------------
Address for Notice:
Triton: ART:
Triton Network Systems Inc. Advanced Radio Telecom Corp.
0000 XxxxxXxxx Xxxxxx 000 - 000xx Xxxxxx XX, Xxxxx 0000
Xxxxxxx, XX 00000 Xxxxxxxx, Xxxxxxxxxx 00000
Attention: CFO Attention: President
Telecopier No.: 407.903.2233 Telecopier No.: 425.990.1642
With a copy to:
Holland & Knight LLP Advanced Radio Telecom Corp.
000 Xx. Xxxxxx Xxx., Xxxxx 0000 000 - 000xx Xxxxxx XX, Xxxxx 0000
Xxxxxxx, XX 00000 Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxx Attention: General Counsel
Telecopier No.: 407.244.5288 Telecopier No.: 425.990.1642
23
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Exhibit 1
25
Exhibit 1. AFFILIATES
Seller Affiliate A
Seller Affiliate B
Seller Affiliate C
Seller Affiliate D
Buyer Affiliate A
Buyer Affiliate B
Buyer Affiliate C
Buyer Affiliate D
24
26
Exhibit 2
27
Exhibit 2. PRODUCT AND PRICING
2.01 EQUIPMENT
PRODUCTS: All current and future 38GHz products offered by Triton
PRICE:
o Pricing is per RPS.
o An Annual Support Fee for each IFU installed in the Buyer's
networks will be invoiced as discussed below at Exhibit 2,
Section 2.03.
o $31,500 per RPS for first 1,000. After the first 1,000, ART price
per RPS will be no higher than the following:
------------------------------------------------------------------------------------
ARTICLE I. PURCHASE PRICE TABLE FOR RPS
------------------------------------------------------------------------------------
RPS Units 1 1,020 2,041 3,061 4,081
Ordered to to to to to
1,020 2,040 3,060 4,080 5,200
====================================================================================
Hardware
Discount % [*] [*] [*] [*] [*]
From List
------------------------------------------------------------------------------------
Unit Price [*] [*] [*] [*] [*]
------------------------------------------------------------------------------------
------------------------------------------------------------------------------------
ARTICLE II. PURCHASE PRICE TABLE FOR RPS
------------------------------------------------------------------------------------
RPS Units 5,201 6,321 7,440 Greater
Ordered to to to than
6,320 7,440 8,560 8,560
====================================================================================
Hardware
Discount % [*] [*] [*] [*]
From List
------------------------------------------------------------------------------------
Unit Price [*] [*] [*] [*]
------------------------------------------------------------------------------------
[*] Confidential Treatment Requested
25
28
o [*]
[*] Confidential Treatment Requested
26
29
2.02 DOCUMENTATION
All Documentation shall be available electronically at no charge to Buyer.
27
30
2.03 ANNUAL SUPPORT FEE FOR SOFTWARE AND TECHNICAL ASSISTANCE CENTER
Annual Support Fee
o On or before January 31, 2000, Buyer shall notify Seller of the total
number of IFUs Buyer has installed in its network as of December 31,
1999. Seller shall invoice Buyer an Annual Support Fee equal to [*]
for each IFU installed by Buyer as of December 31, 1999 to cover the
Annual Support Fee for calendar year 2000.
o On or before January 31, 2001, Buyer shall notify Seller of the total
number of IFUs Buyer has installed in its network as of December 31,
2000. Seller shall invoice Buyer an Annual Support Fee equal to [*]
for each IFU installed by Buyer as of December 31, 2000, including
those installed in prior years, to cover the Annual Support Fee for
calendar year 2001.
o On or before January 31, 2002, Buyer shall notify Seller of the total
number of IFUs Buyer has installed in its network as of December 31,
2001. Seller shall invoice Buyer an Annual Support Fee equal to [*]
for each IFU installed by Buyer as of December 31, 2001, including
those installed in prior years, to cover the Annual Support Fee for
calendar year 2002.
o On or before January 31 of each year following 2002, Buyer shall
notify Seller of the total number of IFUs Buyer has installed in its
network as of December 31 of the immediately preceding year. Seller
shall invoice Buyer an Annual Support Fee equal to [*] for each IFU
installed by Buyer as of December 31 of such immediately preceding
year, including those installed in all prior years, to cover the
Annual Support Fee for such year.
o If the Annual Support Fee is not paid, Seller will not be required to
provide any new Software Releases to Buyer until such time as Buyer
pays the overdue Annual Support Fee.
[*] Confidential Treatment Requested
28
31
2.04 EQUIPMENT WARRANTY -- TRITON SUPPLIED EQUIPMENT
(a) STANDARD WARRANTY
o The Warranties relating to Products can be found in Article 8.
(b) EXTENDED IFU WARRANTY
o The Seller offers the following optional Extended IFU Warranty
terms:
o Additional 12 month warranty [*] of the Purchase Order IFU
net sales price.
o Extended IFU Warranty must be purchased with this Equipment
purchased in this Agreement and is incremental to the twelve
months in the Standard IFU Warranty.
o The return and replacement terms and conditions of the Standard
IFU Warranty apply to the Extended IFU Warranty.
o Extended IFU warranty relates to Equipment only. Technical
support for Software is covered separately.
[*] Confidential Treatment Requested
29
32
2.05 TECHNICAL ASSISTANCE CENTER (TAC) SERVICE LEVEL AGREEMENT
TAC Services are available for all Products. Without limiting Seller's
obligations as otherwise set forth herein, Seller shall provide TAC Services
during the Term in support of the then-current Software Release and at least the
two (2) immediately preceding Major Software Releases.
(c) BRONZE LEVEL TAC SERVICES
o Part of net Equipment price as per this Agreement.
o Regular business hour support (08:00 to 17:00 Eastern Time;
Mondays through Fridays excluding Seller's observed holiday
schedule).
o Non-business hour paging services with maximum three (3) hour
response time.
o E-mail communication available for information inquiries with
maximum three (3) business day response.
o Per hour service charge of telephone and administrative time to
manage Triton and Third Party out of warranty Equipment: [*].
(d) SILVER LEVEL TAC SERVICES
o Additional charge based on quantity of RPSs purchased.
o Dedicated TAC telephone line.
o Dedicated TAC personnel during regular Business Hour support
(08:00 to 17:00 Eastern Time; Mondays through Fridays excluding
Seller's observed Holiday schedule).
o Non-business hour paging services with maximum one (1) hour
response time.
o E-mail communication available for information inquiries with
maximum one (1) business day response.
o Per hour service charge of telephone and administrative time to
manage RPS and Third Party out of warranty Equipment: [*].
(e) GOLD LEVEL TAC SERVICES
o Additional charge based on quality of RPSs purchased.
o Dedicated TAC telephone line.
o Dedicated TAC personnel available twenty-four (24) hours per
day, seven (7) days per week with immediate response time.
o Single point of contact for all network related issues including
Third-Party Equipment and Software.
o E-mail communication available for information inquiries with
maximum half (0.5) business day response.
o Per hour service charge of telephone and administrative time to
manage RPS
[*] Confidential Treatment Requested
30
33
and Third Party out of warranty Equipment: [*].
[*] Confidential Treatment Requested
31
34
2.06 CUSTOMER TRAINING
(a) AVAILABLE TRAINING COURSES
o Local IFU Installation
o Physical installation
o Alignment
o Configuration
o Integration
o Remote IFU OAM&P - Administration, Management and Protocol
o Integrate IFUs into new and existing networks
o Configure all components and aspects of the IFU
o Perform all typical diagnostics and problem isolation to
properly identify failed or degraded operation
o Retrieve all remote administration data
o Apply security measures to ensure network integrity
o IFU Network Engineering
(b) CERTIFICATION
o Installation and Maintenance
o Training is provided at a level to certify the customer in the
Installation and Maintenance of the Triton product.
o Certification verification for each Student is supplied by
Seller.
o Customer will be able to perform all the necessary functions to
install, locally align and configure, and integrate the IFU in an
effective manner.
o Customer will be able to remotely integrate, diagnose typical
failures and degradations, and manage and administer the IFUs in
an effective, consistent manner.
(c) PRICE
o Two Network Management, two Installations and one Engineering
classes are to be provided at no charge with commitment to an
initial order.
o Additional class prices are based on a course basis at
individual student or group rates, excluding travel and
facilities costs.
o Prices are to be negotiated based on course program supplied by
Seller.
o Price includes all course material and Equipment.
32
35
o Minimum number of two (2) students per class.
o Maximum number of ten (10) students per class.
o Customer Premise Training
o Travel Expense for two (2) Seller Trainers including
lodging, meals, rental care, and airfare.
o Shipment of any training material and Equipment.
o Two (2) fully installed and operational IFUs to be used for
training purposes.
o The payment terms in net 30 days upon issuance of the invoice.
33
36
Exhibit 3
37
EXHIBIT 3. RETURN MATERIALS AUTHORIZATION
[LOGO]
TRITON(TM)
Network Systems, Inc.
Customer Return Material Authorization Procedures
The following document should be referenced when returning Triton Network
Systems product.
BEFORE OBTAINING AN RMA (CUSTOMER RESPONSIBILITY)
The customer should attempt troubleshooting procedures as provided within
existing Triton Network Systems documentation and work with the Triton Network
Systems Technical Assistance Center (TAC) to resolve any problems. If
reasonable attempts at troubleshooting do not bring resolution, then the item
should be replaced and a Return Material Authorization (RMA) should be
generated.
OBTAINING AN RMA
The customer should call the TAC at 000-000-0000 or x0-000-000-0000 or contact
the TAC via fax or e-mail to obtain an RMA number. The minimum information
required (or confirmed from previous troubleshooting) for generation of an RMA
by the TAC is:
o Customer Company
o Contact Name
o Contact Phone, FAX
o Site Address of Product
o Shipping Address for Repaired Product
o Part Number of Product if printed on unit
o Model Number of Product if printed on unit
o Serial Number of Product
o Description of Problem
PACKAGING AND RETURN PROCEDURES
The TAC will provide an RMA number to the customer who will indicate the RMA
and serial number on the return label. The IFU must be returned in packaging
that provides a level of protection equal to the original type packaging. If
original type packaging is not available, Triton Network Systems will upon
request from Customer provide packaging.
All Equipment to be repaired or replaced, whether in or out of warranty, shall
be packed by Customer in accordance with Triton Network Systems's reasonable
instructions and shall follow Triton Network Systems's Repair and Return policy
and procedures. Customer shall bear risk of loss and shall pay for all
transportation charges for Equipment returned to Triton Network Systems and
Triton Network Systems shall bear such risk and pay for transportation charges
for repaired or replacement Equipment shipped to Customer. Triton Network
Systems shall use reasonable efforts to ship repaired or replacement Equipment
within thirty (30) days of receipt of the defective Equipment for routine
warranty repair or replacement. Triton Network Systems shall return the
repaired or replaced Equipment to the Customer the same transport method in
which the Customer sent the Equipment to the Triton Network Systems.
34
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WHERE TO SEND RMA PRODUCT
RMA product should be sent to the following address:
Triton Network Systems
0000 XxxxxXxxx Xxxxxx
Xxxx.: Xxxxx Xxxxx, Depot Manager
Xxxxxxx, XX 00000
407.903.2254
REPAIR TIME
IFUs will be repaired in 30 days or less on a "same for same" basis, identical
serial number IFUs will be returned. If the Equipment that is returned to
Triton Network Systems is determined by Triton Network Systems to be beyond
repair or is outside the warranty period, Triton Network Systems shall notify
Customer and if Customer decides to purchase Equipment to replace the defective
IFU, Customer shall issue a Purchase Order and Triton Network Systems shall
sell Customer replacement Equipment at the lesser of the most recent Agreement
price between the Parties for such Equipment, or the then current price for
such Equipment.
IMPROPERLY RETURNED PRODUCT
If product is sent to Triton Network Systems without a valid RMA number, it
will be returned to the customer at their expense without repairs being
performed.
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Exhibit 4
40
Exhibit 4. TERRITORIES
United States.
Canada.
36
41
Exhibit 5
42
Exhibit 5. YEAR 2000 (Y2K) COMPLIANCE
Seller warrants, with respect to Products, that Seller has undertaken all
commercially practicable efforts to ensure, to the extent within its reasonable
control, that when such Products are properly used in accordance with the
applicable Product Specifications, then both before and after 01 January 2000
such Products will accurately receive, provide, and process date and date
dependent data (including calculating, comparing, and sequencing) from, into,
and between the twentieth (20th) and the twenty-first (21st) centuries through
to the year 2036, including the years 1999 and 2000, and leap year calculations.
Seller further warrants that during the Product warranty period, as specified
in this Agreement, Product shall function without any material, service
affecting, non-conformance to the applicable Product Specifications as a
consequence of date and date dependent data, to the extent that other software
used in combination with Seller's Products sold or licensed hereunder is also
Year 2000 Compliant and properly exchanges date and date dependent data with
Seller's Products. If Product fails to so function as set forth herein, (i)
Buyer may cancel its Initial Purchase Commitment and shall have no obligations
to pay any Initial Purchase Cancellation Fee or otherwise, and (ii) such
failure shall be deemed to be a breach by Seller of the warranties set forth in
Article 8 of this Agreement and Buyer shall be entitled to the remedies set
forth in Article 8 of this Agreement. Any modification to Products not performed
by Seller, other than with respect to Modifiable Software, shall void this
warranty only to the extent such modification causes the Product to fail to
function as set forth in this Exhibit 5.
37
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Exhibit 6
44
Exhibit 6. PRODUCT SPECIFICATIONS
38
45
[TRITON LOGO]
TNS-38 100 Mbps Invisible
Fiber(TM) Internet: Product
Specification
Document Number: SY-SPE-23-fe
Version & Revision: 1.0.27.3
Release Status: DRAFT
Security Level: TNS and Customer Under Non-Disclosure
Audience: TNS and Customer Under Non-Disclosure
Authors: Engineering, Product Management
Date: 21-December-1999
Distribution: TNS and Customer Under Non-Disclosure
--------------------------------------- ---------------------------------------
PRODUCT MANAGEMENT: Xxxx Xxxxxx MARKETING: Xxxx Xxxxxxxx
--------------------------------------- ---------------------------------------
ENGINEERING: Xxxx Xxxxx SALES: Xxxx Xxxxxxxx
--------------------------------------- ---------------------------------------
SYSTEMS: Xxxxx Xxxx OPERATIONS: Xx Xxxxxxx
--------------------------------------- ---------------------------------------
HARDWARE: Xxxxx Xxxx FINANCE: Xxx Xxxx
--------------------------------------- ---------------------------------------
SOFTWARE: Xxxxx Xxxxxxxx MANUFACTURING: Xxx Xxxx
--------------------------------------- ---------------------------------------
TEST AND INTEGRATION: Xx Xxxxxx QUALITY: Xxxx Xxxxxxxx
--------------------------------------- ---------------------------------------
--------------------------------------- ---------------------------------------
46
TNS-38 100 Mbps Invisible Fiber(TM) Internet: Product Specification 21-Dec-1999
Security Level: TNS and ART Under Non-Disclosure Document Number: SY-SPE-23-fe
Audience: TNS and ART Under Non-Disclosure Revision: 1.0.27.3
Authors: Engineering, Product Management Release Status: Approved
Change History
Date Updated by Change Description Revision
31-AUG-99 Engineering, Initial document draft 1.0.22
Product
Management
10-NOV-99 Engineering, Updated based on Release 1. 1.0.27
Product
Management
07-DEC-99 Engineering, Updated. 1.0.27.1
Product
Management
16-DEC-99 Product Updated 2.2.17.1, 2.2.27, and 6.1.4.1 1.0.27.2
Management
21-DEC-99 Product Updated 2.3.1.2, 2.3.1.5.2, and 4.3.1.2.1 1.0.27.3
Management
Page 2 of 2
47
TNS-38 100 Mbps Invisible Fiber(TM) Internet: Product Specification 21-Dec-1999
Security Level: TNS and ART Under Non-Disclosure Document Number: SY-SPE-23-fe
Audience: TNS and ART Under Non-Disclosure Revision: 1.0.27.3
Authors: Engineering, Product Management Release Status: Approved
TABLE OF CONTENTS
1. Introduction .............................................................. 4
1.1 Purpose .............................................................. 4
1.2 Scope ................................................................ 4
1.3 References ........................................................... 4
2. System Requirements ....................................................... 5
Page 3 of 3
48
TNS-38 100 Mbps Invisible Fiber(TM) Internet: Product Specification 21-Dec-1999
Security Level: TNS and ART Under Non-Disclosure Document Number: SY-SPE-23-fe
Audience: TNS and ART Under Non-Disclosure Revision: 1.0.27.3
Authors: Engineering, Product Management Release Status: Approved
1 INTRODUCTION
1.1 PURPOSE
This document contains Triton Network Systems, Inc. TNS-38 100 Mbps Internet
IFU Product Specification.
1.2 SCOPE
This document is a complete customer Product Specification for the TNS-38 100
Mbps Internet IFU product.
1.3 REFERENCES
None
Page 4 of 4
49
TNS-38 100 Mbps Invisible Fiber(TM) Internet: Product Specification 21-Dec-1999
Security Level: TNS and ART Under Non-Disclosure Document Number: SY-SPE-23-fe
Audience: TNS and ART Under Non-Disclosure Revision: 1.0.27.3
Authors: Engineering, Product Management Release Status: Approved
2 SYSTEM REQUIREMENTS
Req. No. Specification Description
2. IFU System Performance, Environmental, and Regulatory
2.1 Network Topology IFUs can be deployed in Linear (backhaul) networks and
Consecutive Point Ring networks
2.2 Performance
2.2.1 Data Rate
2.2.1.1 FE 100 Mbps full duplex
2.2.2 OAM&P communication channel A separate 3 Mbps radio overhead channel
2.2.3 Frequency
2.2.3.1 Frequency (Band A) 38.6 to 39.3 GHz (700 MHz)
2.2.3.2 Frequency (Band B) 39.3 to 40.0 GHz (700 MHz)
2.2.4 Tx Polarization The IFU that transmits in the A Band (38.6 to 39.3 GHz) will
be transmitting on the HORIZONTAL plane. The IFU that
transmits in the B Band (39.3 to 40.0 GHz) will be
transmitting on the VERTICAL plane.
2.2.5 Short-Term Tx Frequency Accuracy +/-1 ppm first year
2.2.6 Long-term Tx Frequency Stability +/-5 ppm over 15 years (in compliance with FCC Part
101.107)
2.2.7 Full Duplex Channels 14 (programmable)
2.2.8 Tx/Rx Offset 700 MHz
2.2.9 Tuning Range Channels 1-7, 8-14
2.2.10 Channel Bandwidth 50 MHz (in compliance with FCC Part 101, 109)
2.2.11 Modulation
2.2.11.1 FE 8 PSK
2.2.12 BER (faded) 10(-12) or better
2.2.13 Maximum BER Radio Link remains in operation up to a BER of 10(-12)
2.2.14 System Availability System Availability of 99.9999% for a ring configuration
2.2.15 Antenna gain [*] dBi nominal, [*] dBi minimum
2.2.16 Receiver sensitivity @ BER of 10(-12)
2.2.16.1 FE [*] dBm typical, [*] dBm minimum
2.2.17 Transmit Power
2.2.17.1 FE [*] dBm to [*] dBm typical, [*] dBm to [*] dBm minimum
2.2.18 System Gain
2.2.18.1 FE [*] dB typical
[*] Confidential Treatment Requested
Page 5 of 5
50
TNS-38 100 Mbps Invisible Fiber(TM) Internet: Product Specification 21-Dec-1999
Security Level: TNS and ART Under Non-Disclosure Document Number: SY-SPE-23-fe
Audience: TNS and ART Under Non-Disclosure Revision: 1.0.27.3
Authors: Engineering, Product Management Release Status: Approved
REQ. NO. SPECIFICATION DESCRIPTION
2. IFU SYSTEM PERFORMANCE, ENVIRONMENTAL, AND REGULATORY (CONTINUED)
2.2.19 RF Link System Gain (including Tx/Rx
Antennas)
2.2.19.1 FE >= 177 dB typical
2.2.20 Tx Dynamic Range Up to 50 dB
2.2.21 Receiver Overload [*] dBm
2.2.22 Noise Figure [*] dB typical, [*] dB maximum
2.2.23 Forward Error Correction Xxxx Xxxxxxx and Trellis Code Modulation (concatenated)
2.2.24 Adaptive Tx Power Control (AdTPC) Closed loop AdTPC up to 50 dB in typically 0.5 dB steps, and always
less than [*] step increments. With rate of change of up to
[*].
2.2.25 Radio link recovery time after propagation Less than [*] ms
interruption
2.2.26 Co-channel single entry C/I (causing 1 dB (C/I = Carrier to Interference Ratio) 20 dB below carrier typical
degradation) and [*] dB maximum for 10e-12 BER performance.
2.2.27 Adjacent single entry C/I (causing 1 dB (C/I = Carrier to Interference Ratio) -15 dB typical and [*] dB
degradation) maximum for 10e-12 BER performance.
2.2.28 MTBF (Mean Time Between Failure) Meets or exceeds [*] hours as defined by Telcordia TR-332, Issue 5.
The MTBF would apply to any component that could interfere with the
radio link and/or SNMP processing or communication.
2.2.29 MTTR (Mean Time To Replace) MTTR is the time interval to replace a failed IFU assuming the IFU
has been configured. MTTR <= 15 minutes.
2.2.30 Link Latency
2.2.30.1 FE < [*], across an IFU link. The delay does not contemplate the latency
due to additional network elements.
2.3 Environmental
2.3.1 Operating Conditions
2.3.1.1 Temperature (ambient) -27 (degrees)F to +131 (degrees)F (-33 (degrees)C to +55 (degrees)C)
2.3.1.2 Humidity Up to 100% condensing (not submerged)
2.3.1.3 Altitude -450 ft to 16,000 ft (-135 m to 4,650 m)
2.3.1.4 Wind Loading
2.3.1.4.1 Operational Designed to operate up to 90 mph (145 kph)
2.3.1.4.2 Survival Designed to survive up to 125 mph (200 kph)
2.3.1.5 Maximum deflection angle 0.1 degree in 70 mph (110 kph) wind.
2.3.5 Storage
2.3.5.1 Temp -40 (degrees)F to -158 (degrees)F (-40 (degrees)C to +70 (degrees)C)
2.3.5.2 Humidity Up to 95% non-condensing
2.4 Regulatory
2.4.1 XXX/XX Xxxxx 00X, 000/XXX-000
2.4.2 UL/CSA 50, 1950 / C22,2 # 94-M91, C22-24
[*] Confidential Treatment Requested
Page 6 of 6
51
TNS-38 100 Mbps Invisible Fiber(TM) Internet: Product Specification 21-Dec-1999
Security Level: TNS and ART Under Non-Disclosure Document Number: SY-SPE-23-fe
Audience: TNS and ART Under Non-Disclosure Revision: 1.0.27.3
Authors: Engineering, Product Management Release Status: Approved
Reg. No. Specification Description
3. IFU Physical Characteristics
3.1 MECHANICAL
3.1.1 IFU Packaging Integrated Out Door Unit only
3.1.2 Weight (without bracket) < [*] lbs.
3.1.3 Dimensions 16' H X 16" W X 14.5" D (40cm M x 40cm W x 36cm D)
3.1.4 Mounting Pole (4.5" O.D.) or wall mountable using mounting bracket.
3.1.4.1 Bracket Weight < 18 lbs.
3.1.4.2 Radio rotation +/- 60" in azimuth
(+/- 90" in azimuth with extension option)
+/- 30" in elevation
3.1.4.3 Horizontal Alignment Resolution +/- 0.45" (nominal)
+/- 0.8" (90 mph / 145 kph wind)
3.1.4.4 Includes a secured locking mechanism Yes.
3.1.5 Shock/Vibration Designed to comply with ETS 300 019-1-4, Class 4, 1E.
3.1.6 Appearance Default color is off-white. Customer paintable.
3.1.7 Enclosure NEMA 4X
3.1.8 Flammability Comply with UL 94V0 flammability requirements.
3.1.9 Safety Includes electrical, optical, and RF hazard labels.
3.2 CONNECTORS
3.2.1 Fiber Optic Connector 8-fiber, sealed screw-on connector.
3.2.1.1 FE The Fiber Optic Connector supports the following signals:
two 100BaseFX and two 10BaseFL.
3.2.2 Power Connector 4-pin, sealed screw-on connector. Conforms to MIL-C-38999.
Two pairs of -48 V DC signals for power and ground to the
electronic components of the IFU.
3.2.3 General Purpose Input (GPI) / Test 19-pin, sealed screw-on connector. Conforms to MIL-C-38999.
Connector
This connector supports the following signals: two GP
inputs, and with a test cable the connector supports one
10BaseT, one RS-232, and one RSSI.
3.3 CABLING
3.3.1 Fiber Optic Connector Connector
3.3.1.1 FE Cable bundle consists of 4 multi-mode (for OAM&P and
Inter-IFU connection) and 4 multi-mode (for payload and
add/drop cables) fibers. All fibers use SC connectors.
3.3.2 Power Connector Cable Two pairs of -48 VDC signals.
3.3.3 General Purpose Input (GPI) Cable Cable bundle consists of 2 pair of external alarm input
conductors.
[*] Confidential Treatment Requested
Page 7 of 7
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TNS-38 100 Mbps Invisible Fiber(TM) Internet: Product Specification 21-Dec-1999
Security Level: TNS and ART Under Non-Disclosure Document Number: SY-SPE-23-fe
Audience: TNS and ART Under Non-Disclosure Revision: 1.0.27.3
Authors: Engineering, Product Management Release Status: Approved
REG. NO. SPECIFICATION DESCRIPTION
3. IFU PHYSICAL CHARACTERISTICS (CONTINUED)
3.3.4 Test Cable Cable bundle that consists of the following cables and
connectors:
Local Ethernet. Using RJ45 male connector.
RSSI. Using BNC male connector.
RS-232: Using female DB-9 connector.
4. IFU EXTERNAL INTERFACES
4.1 Power Interface
4.1.1 Signals Two pairs of -48 V DC signals for power and ground to the
electronic components of the IFU.
4.1.2 Voltage -28 to -56 VDC
4.1.3 Power Consumption [*] Xxxxx at 68 F (20 C) degrees: [*] Xxxxx Maximum
4.1.4 Current Rating [*] Amps
4.2 Air Interface
4.2.1 RF Characteristics (Refer to Section 2 above)
4.2.2 Antenna
4.2.2.1 Minimum Gain Compliant with CFR 47, Part 101.115 +38 dBi minimum.
4.2.2.2 Polarization Dual Feed, Dual Linear.
4.2.2.2 Polarization (Continued) A unit - Tx horizontal, Rx vertical
B unit - Tx vertical, Rx horizontal
4.2.2.3 Radiation Suppression Compliant with CFR 47, Part 101.115
4.2.3 Modulation
4.2.3.1 Fast Ethernet
4.2.3.1.1 Modulation 8 PSK
4.3 Customer Data Interface
4.3.1 Fast Ethernet Interface
4.3.1.1 Application Designed for interconnecting Ethernet data networks such
as Ethernet-based TCP/IP networks or SPX/IPX networks.
These signals are used for connecting to the customer's
100BaseFX Ethernet equipment at network termination
points. They also can be used for interconnecting IFUs in a
back-to-back configuration.
4.3.1.2 Physical Interface
4.3.1.2.1 100BaseFX Payload Port 100BaseFX fiber, 1310 nm multimode
100BaseFX Ethernet interface used to receive and transmit
user payload data. (ON/OFF build configurable)
4.3.1.2.2 100BaseFX Add/Drop Port 100BaseFX fiber, 1310 nm multimode
100BaseFX Ethernet interface used as an add/drop point to
receive and transmit user payload data.
[*] Confidential Treatment Requested
Page 8 of 8
53
TNS-38 100 Mbps Invisible Fiber(TM) Internet: Product Specification 21-Dec-1999
Security Level: TNS and ART Under Non-Disclosure Document Number: SY-SPE-23-fe
Audience: TNS and ART Under Non-Disclosure Revision: 1.0.27.3
Authors: Engineering, Product Management Release Status: Approved
REQ. NO SPECIFICATION DESCRIPTION
4. IFU EXTERNAL INTERFACES (CONTINUED)
4.3.2 Data Rate 100 Mbps, full duplex
4.3.3 Protocol Complies with IEEE 802.3u (Fast Ethernet) and Ethernet v2
standards.
4.4 OAM&P Interface
4.4.1 OAM&P Port 10BaseFL fiber, 850 nm multimode
10BaseFL optical Ethernet management port is intended to
connect to a remote network management system.
4.4.2 Inter-IFU Port 10BaseFL fiber, 850 nm multimode
10BaseFL optical Ethernet management port intended to
transport IFU OAM&P traffic between two IFUs connected in
a back-to-back configuration.
4.4.3 Local Management Port 00XxxxX Xxxxxxxx port provides an interface to a locally
connected IFU Link Manager workstation.
4.4.4 RSSI Port Provides a direct feed of the received RSSI signal from the
IFU's internal modem. The signal consists of a voltage
output which can be measured with a voltmeter to determine
the relative strength of the received radio signal (+/- 50mV
/dB)
4.4.5 Transmitter on Indicator Light visible from outside the enclosure is illuminated when
transmitter power is on. Compliant with CFR 47,
Part 101.131
4.4.6 Local RS-232 The IFU's IP Address and the subnet mask are output on
the RS-232 serial port once per minute.
4.5 GENERAL PURPOSE INPUT INTERFACE
4.5.1 Input signals There are two GP input ports. Each port consists of a cable
pair supporting two signals, one for power and one for
ground.
4.5.2 Threshold If the difference between power and ground decreases to
less than 1 volt, then an alarm condition is raised. If the
difference between power and ground increases to greater
than 7 volts, then the alarm condition is cleared.
4.5.3 Application Each of the two GP inputs can be connected to customer-
provided external equipment that causes the IFU to report
an alarm when voltage drops below the threshold. For
example, a power failure could trigger this alarm.
5. IFU HARDWARE FEATURES
5.1 CPU MBX 860 card from Motorola
5.1.1 Clock Speed [*] MHz
5.1.2 Memory [*] M DRAM, [*] M Flash
5.2 Power Supply
5.2.1 Voltage -28 to -56 VDC
[*] Confidential Treatment Requested
Page 9 of 9
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TNS-38 100 Mbps Invisible Fiber(TM) Internet: Product Specification 21-Dec-1999
Security Level: TNS and ART Under Non-Disclosure Document Number: SY-SPE-23-fe
Audience: TNS and ART Under Non-Disclosure Revision: 1.0.27.3
Authors: Engineering, Product Management Release Status: Approved
Req. No. Specification Description
5. IFU Hardware Features (Continued)
5.3 NIC
5.3.1 FE Two 100BaseFX ports
[*] switch
5.3.2 OAM&P ports [*] 10BaseFL ports and [*] 10BaseT port linked by a HUB
5.4 Antenna
5.4.1 Size 13.5" (33 cm) diameter
5.4.2 Gain [*] dBi nominal, [*] dBi minimum
5.4.3 Main-lobe beamwidth [*]
5.4.4 Sidelobes FCC Part 101.115 Category A compliant.
5.5 RF Filter
5.5.1 Low A band channel 1-7 in band A
5.5.2 High A band channel 8-14 in band A
5.5.3 Low B band channel 1-7 in band B
5.5.4 High B band channel 8-14 in band B
5.6 Modem
5.6.1 Modulation
5.6.1.1 FE 8 PSK
5.7 Transmitter
5.7.1 Output frequency range 38.6 GHz to 40.0 GHz
5.7.2 Output power (Refer to the Section 2.3.17.1 for Tx power)
5.8 Receiver
5.8.1 Input frequency range 38.6 GHz to 40.0 GHz
5.8.2 Input Receiver Overload [*] dBm
5.9 Reference Oscillator
5.9.1 Frequency 50 MHz
6. Network Management
6.1 IFU Link Manager The IFU Link Manager (IFU-LM) is an IFU link management
tool developed by TNS. IFU-LM is written in Java(TM) and can
be run on a wide variety of platforms. The IFU-LM
communicates with the IFU locally or remotely over TCP/IP.
The following section highlights the many features that IFU-
LM offers.
These features are available to customer who logs in using password for Access Level 1.
Not all features listed are available for user of Access Level 2 and 3 (see section 6.1.3).
[*] Confidential Treatment Requested
Page 10 of 10
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TNS-38 100 Mbps Invisible Fiber(TM) Internet: Product Specification 21-Dec-1999
Security Level: TNS and ART Under Non-Disclosure Document Number: SY-SPE-23-fe
Audience: TNS and ART Under Non-Disclosure Revision: 1.0.27.3
Authors: Engineering, Product Management Release Status: Approved
Req. No. Specification Description
6. Network Management (Continued)
6.1.1 Network Tree View Displays network containment hierarchy in tree structure where branches are clusters
of IFU and leaves are IFUs.
IFU Clusters and IFUs are represented by corresponding hard-coded icon graphics.
Allows user to add and delete IFUs (leaves) and clusters (branches) as needed to
reflect the network topology.
6.1.2 Network Monitoring Feature Provides continuous monitoring of the IFUs in a network without logging-in to each IFU.
User can launch multiple Network Monitor windows. Each window monitors multiple IFU links
(partitioned by IP Address filtering).
Each Network Monitor window consists of multiple rows where each row displays the status
of the 2 IFUs that form an RF link.
The Information display per IFU consists of: IP Address, alarm status, RSSI, SQM, and
reporting statistics (total number of IFUs being monitored, number of IFUs with active
alarm, number of IFUs that are Not Reporting).
The operator can program the system to automatically send email to a programmable valid
destination to report the status of an IFU when its status changes to Not Reporting or
Alarmed.
6.1.3 Security Management Features Access to each IFU is restricted to authorized users only. Each authorized user is given
an IFU login ID and password enabling him/her to perform the management tasks according to
the security access level.
Users log in to an IFU using their assigned User Login ID and Password.
There are 3 Security Access levels:
Level 1: Full READ-WRITE access plus User/Password Administration and Network
Administration.
Level 2: Full READ-WRITE access. No User/Password Administration and Network
Administration privileges.
Level 3: READ-only. No user/password administration.
Each IFU includes [*] editable User Login IDs and passwords for the [*] Security Access
levels.
Level 1 user can perform Login ID/Password administration for the corresponding IFU.
Displays warning message if SW version mismatched between IFU-LM and the IFU which the
user tries to login to.
Controls access to certain management functions based on user's login security level.
User can display all users currently logged on to the IFU.
User can view a log of the [*] user login sessions.
[*] Confidential Treatment Requested
Page 11 of 11
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TNS-38 100 Mbps Invisible Fiber(TM) Internet: Product Specification 21-Dec-1999
Security Level: TNS and ART Under Non-Disclosure Document Number: SY-SPE-23-fe
Audience: TNS and ART Under Non-Disclosure Revision: 1.0.27.3
Authors: Engineering, Product Management Release Status: Approved
Req. No. Specification Description
6. Network Management (Continued)
6.1.4 Configuration Management Features Allows users to read or change the IFU configuration
attributes based on their access privilege.
Some of the attributes are strictly READ-ONLY while others
can be changed by users with WRITE privilege.
Examples of the read-only attributes are IFU Serial Number,
IFU Product Type, SW Version, etc.
Examples of the attributes that can be read and changed
are Channel Number, IFU's and EMS' IP addresses, Rain
Region, SNMP Community String, etc.
6.1.4.1 The following configuration Site Name/ID
management parameters can be read
and changed:
Near-end (this) IFU's IP Address
Far-end IFU's IP Address
Network Mask
NTP Server IP Address
Gateway IP Address
EMS 1 IP Address
EMS 2 IP Address
Grade of Service
Tx/Rx Carrier Frequency
Rain Model (User selectable Rain Statistics - Rain
Attenuation Algorithm pair from the following choices:
Xxxxx-Xxxxx, Xxxxx-ITU, ITU-ITU)
Rain Region (User selectable Rain based on whether Crane
or ITU Rain Model is chosen. Available Rain Region
choices for the Crane Model are: X, X0, X0, X, X0, X0, X0,
X, X, X, X: available Rain Region choices for the ITU Rain
Model are: X, X, X, X, X, X, X, X, X, X, X)
Near-end IFU's Latitude and Longitude
Far-end IFU's Latitude and Longitude
Link Distance (If both Link Distance and Near-end/Far-end
Lat/Long were entered, the value of Link Distance
supersedes the values of Near-end/Far-end Lat/Long.)
Installation Date
In-Service Date
SNMP Trap Community Name
6.1.4.2 The following configuration IFU Serial Number
management parameters are read-only:
IFU Part Number
NIC Type (IFU Product Type: OC-3 or FE)
Link Type (A/B unit)
Page 12 of 12
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TNS-38 100 Mbps Invisible Fiber(TM) Internet: Product Specification 21-Dec-1999
Security Level: TNS and ART Under Non-Disclosure Document Number: SY-SPE-23-fe
Audience: TNS and ART Under Non-Disclosure Revision: 1.0.27.3
Authors: Engineering, Product Management Release Status: Approved
Req. No. Specification Description
6. Network Management (Continued)
6.1.4.2 The following configuration management Antenna Orientation (Horizontal/Vertical)
parameters are read-only (Continued):
OS Software Version
Application Software Version
Link Budget (for OC-3 or FE depending on
the IFU Product Type)
Modem Hardware Version
Modem Software Version
Last Configuration Change Date/Time
6.1.4.3 IP Address & Subnet Mask Broadcast The IFU's IP Address and the subnet mask
(Configuration Management) are output on the RS-232 serial port [*].
This capability enables the craftsperson with
serial connectivity to an IFU to safely
obtain its IP address to be used to connect
to it via IFU-LM.
6.1.5 Fault Management Features Viewing of the IFU's active alarms (time-
stamped) stored on the individual IFU.
Allows user to lag a note with each alarm
type.
Viewing of the Alarm History Log [*] events
(time-stamped) stored on the individual IFU
(an event is either an alarm set or alarm clear).
Mask/Unmask of all alarms.
Displays the Modem Lock status.
Configuration of the SET/CLEAR threshold
values for certain Threshold Crossing Alarm
(TCA) parameters.
6.1.5.1 The following TCA parameters RSSI
can be configured:
SQM
IFU Internal Temperature
6.1.5.2 The following alarms can be generated Payload Offline
when corresponding fault of threshold-
crossing conditions occur. When
conditions no longer exist, the
corresponding alarm-clear is generated.
Exciter Unlock
Modem Unlock
Power Supply Failure for Tx
Power Supply Failure On Unswitched Rail
Tx Failure
SONET Clock LOL from RF
RSSI Too Low
[*] Confidential Treatment Requested
Page 13 of 13
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TNS-38 100 Mbps Invisible Fiber(TM) Internet: Product Specification 21-Dec-1999
Security Level: TNS and ART Under Non-Disclosure Document Number: SY-SPE-23-fe
Audience: TNS and ART Under Non-Disclosure Revision: 1.0.27.3
Authors: Engineering, Product Management Release Status: Approved
Req. No. Specification Description
6. Network Management (Continued)
6.1.5.2 (Continued) SQM Too Low
SONET LOS from Fiber
Internal Communication Failure
Power Supply Failure On +12v Rail
Power Supply Failure On -48v Rail
IF Tuning Failure
Tx ID Mismatched
External Alarm Input #1 Active
External Alarm Input #2 Active
Power Management Timeout
Internal Temperature Too High
Internal Temperature Too Low
Carrier Frequency Offset Error
Tx Power At Max
6.1.6 Performance Management Features
6.1.6.1 PM parameters that can be displayed
via IFU-LM:
RF Parameters RSSI (or RSL)
SQM
BER
Transmit Power Out
Environmental: IFU Internal Temperature
Ethernet Parameters: [*]
[*] Confidential Treatment Requested
Page 14 of 14
59
TNS-38 100 Mbps Invisible Fiber(TM) Internet: Product Specification 21-Dec-1999
Security Level: TNS and ART Under Non-Disclosure Document Number: SY-SPE-23-fe
Audience: TNS and ART Under Non-Disclosure Revision: 1.0.27.3
Authors: Engineering, Product Management Release Status: Approved
Req. No. Specification Description
6. Network Management (Continued)
6.1.6.1 (Continued) [*]
6.1.6.2 PM graphs that can be viewed: Several types of PM data can be viewed graphically over a
given time period:
SQM plot
Modem power plot
Xxxx Xxxxxxx modem block error plot
Modem lock status in discrete values. 0=unlocked
1=locked.
IFU internal temperature plot
Tx Power Plot
6.1.7 Tx Power ON/OFF Allows user to turn ON or OFF the power supply to the
Transmitter and displays status.
6.1.9 Adaptive Tx Power Control (AdTPC) Allows user to [*].
Automatic hop distance calculation.
Adaptive Tx Power Control to maintain RSSI at pre-set level
under varying channel conditions.
6.1.10 Manual System Reboot Allows manual system reboot
6.1.11 Manual Modem Reboot Allows manual reboot at the Modem.
6.2 IFU Link Manager Command-Line Allows IFU-LM to be launched via command-line with an
Arguments optional argument for either an IP address or host name
(DNS). This allows HP OpenView(TM) Network Node Manager
to launch IFU-LM within its environment (either from a menu or by
clicking on an IFU icon).
6.3 SNMP Agent
6.3.1 SNMP Version Embedded SNMP Agent [*].
6.3.2 SNMP NMS Compatibility The SNMP Agent is compatible with HP Openview(TM)
[*].
6.3.3 SNMP 'Lite' Agent Solution Supports only the Fault Management function. All other
management functions are performed through IFU-LM. The
SNMP agent maps alarms generated by the IFU Alarm
Manager into SNMP Traps and sends them to the EMS/NMS.
6.3.3.1 Generic Traps Supported coldStart, warmStart
6.3.3.2 TNS Enterprise-Specific Traps Please refer to the MIB Specification for Traps that can be
reported.
6.3.3.3 Number of Trap Destinations 2 (EMS1 and EMS2 attribute a configurable via IFU-LM)
[*] Confidential Treatment Requested
Page 15 of 15
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TNS-38 100 Mbps Invisible Fiber(TM) Internet: Product Specification 21-Dec-1999
Security Level: TNS and ART Under Non-Disclosure Document Number: SY-SPE-23-fe
Audience: TNS and ART Under Non-Disclosure Revision: 1.0.27.3
Authors: Engineering, Product Management Release Status: Approved
Req No. Specification Description
6. Network Management (Continued)
6.3.3.4 Traps Enable/Disable Via IFU-LM Alarm Mask/Unmask feature.
6.4 TNS Enterprise MIB for TNS-38 OC-3/FE
IFU
6.4.1 TNS Private Enterprise Number 4216
6.4.2 Compatibility XXX 0000, XXX 1157, XXX 0000, XXX 0000, X. 208/X.680
6.4.3 HPOV NNM Compatibility Compilable and loadable onto HPOV NNM 6.0.
Page 16 of 16
61
EXHIBIT 7
62
EXHIBIT 7. FORM OF PURCHASE ORDER
63
This Purchase Order is subject to Supply Agreement
ART (LOGO) dated 31 Dec 1999 between Advanced Radio Telecom
Advanced Radio Telecom(TM) Corp. and Triton Network Systems Inc.
------------------------------------------------------------------------------------------------------------------------------------
PHASE ORDER 000 - 000xx Xxxxxx XX, Xxxxx 0000
Number: POXXXX Xxxxxxxx, Xxxxxxxxxx 00000
Office: (000) 000-0000
Please Quote Phase Order Number on all correspondence. Facsimile: (000) 000-0000
Toll-Free: (000) 000-0000
Date 12/17/1999 Page: 1 Website: xxxx://xxx.xxx-xxx.xxx
------------------------------------------------------------------------------------------------------------------------------------
Order From: Triton Network Systems, Inc. Deliver to: Advanced Radio Telecom
0000 Xxxxx Xxxx Xxxxxx Distribution Center
4th Floor 00000 00xx Xxx. X.
Xxxxxxx XX 00000 Xxxx, XX 00000
Contact: Xxxxx Xxxxxxx Contact:
Phone: (000) 000-0000 Ext. 0000 Ship Via: USF FOB:
FAX: (000) 000-0000 Ext. 0000 Terms: Net 30
------------------------------------------------------------------------------------------------------------------------------------
1 Your Item Number ART Reference Qty UOM Unit Cost Extension
Item Description Date Req'd
------------------------------------------------------------------------------------------------------------------------------------
1 TNS-38-ETP-FE-200 IFU 4.00 Each [*] [*]
IFU Including Mounting Brackets & Software 3/1/2000
------------------------------------------------------------------------------------------------------------------------------------
Authorized Signature Date
--------------------------------------- ------------------
Subtotal: [*]
Freight: $0.00
Tax amount: $0.00
Total Value: [*]
[*] Confidential Treatment Requested
64
EXHIBIT 8
65
Exhibit 8. CUSTOMER FEATURE REQUESTS
66
EXHIBIT 8a
[TRITON LOGO]
IFU HARDWARE PLAN
SHORT HAUL RADIO for TNS-38-ETP-FE PRODUCTS:
REQUIREMENT:
ART believes that at least [*] of their [*] will be at distances
that are shorter than the distance needed for the IFU to maintain a receive
signal level of [*]. The impact of not being able to transmit at a level
below our current typical minimum level of [*] means that the IFU is
operating at a level beyond what is required to maintain the link at a BER
>10(-12) on short links [*].
PLAN:
Using a phased approach, Triton Network Systems, Inc. will provide enhancements
to the 100 Mbps Internet IFU by Q2, 2000, which will enable the IFU to operate
at a minimum transmit level of [*] that will allow the receive signal level
to be maintained at [*] at a minimum link distance of [*]. Phase II
will provide the ability to reduce the transmit power even further by [*],
to a minimum transmit level of [*] that will allow the receive signal level
to be maintained at [*] at a minimum link distance of [*].
ANTENNA PATTERNS IN A DIGITIZED FORMAT for TNS-38-ETP-FE PRODUCTS:
REQUIREMENT:
ART has requested digitized antenna patterns with a minimum granularity shown
in the table below for at least one antenna for each of the antenna positions
in both the elevation and azimuth directions (VV, HH, VH, and HV):
ANGLE FROM BEAM CENTER IN DEGREES MEASUREMENT GRANULARITY
--------------------------------- -----------------------
< 5 0.1 degree
5 to 10 0.5 degree
10 to 25 1.0 degree
25 to 90 3.0 degree
90 to 180 10.0 degree
PLAN:
Triton Network Systems, Inc. commits to provide the requested antenna patterns
in the granularity proposed. Expected completion date is April 3, 1999.
[*] Confidential Treatment Requested
Page 1 of 1
67
EXHIBIT 8a
The table below lists all RF ART Customer Feature Requests and a plan for
resolution. Items identified as resolved on the chart below are changes or
features that will appear in release [*]. Delivery of Release [*]
is expected by [*]. Delivery of [*] is expected by the end of the
[*]. Items that are identified on the chart below as closed
are changes or features that will appear in release 1.0 or 1.1. Delivery of
Release 1.0 is expected by January 3, 2000. Delivery of 1.1 is expected by
January 31, 2000.
ART
CFR# DESCRIPTION STATUS RELEASE COMMENTS
---- ----------- ------ ------- --------
5 Support for modem loopback test [*] [*]
mode functionality
11 Display transmit power monitor in Resolved 1.0 Introduced in Release
dBm 1.0.
12 Display received signal level in Resolved 1.0 Introduced in Release
dBm 1.0.
13 Setting initial transmit power [*] [*]
14 IFU weight less than 40 lbs. [*] Expected weight goal
of [*]
22 Flexible rain data entry [*] [*]
23 Provide link BER test mode based [*] [*]
on [*] data [*]
24 Improve receiver sensitivity @ [*] [*] typical.
10e-12-to [*] [*] minimum.
25 User control of RSSI thresholds [*] [*]
(see CFR #13)
[*] Confidential Treatment Requested
Page 2 of 2
68
EXHIBIT 8b
[LOGO] TRITON
NETWORK SYSTEMS, INC.
IFU Software & IFU Management Software Plan
The table below lists all non-RF ART Customer Feature Requests and a plan for
resolution. As discussed during the Triton/ART conference call on 12/17/99,
Triton will further develop the requirements and review an Alpha design of the
Mass Deployment capabilities with ART to ensure support of ART processes, to
occur no later than January 15/00. The Alpha design will serve as a basis for
developing a mutually agreeable feature rollout schedule. Items identified as
resolved on the chart below are changes or features that will appear in release
2.0, 2.1 or sooner. Delivery of Release 2.0 is expected by March 31, 2000.
Delivery of 2.1 is expected by the end of the second quarter of 2000. Items
that are identified on the chart below as closed are changes or features that
will appear in release 1.0 or 1.1. Delivery of Release 1.0 is expected by
January 3, 2000. Delivery of 1.1 is expected by January 31, 2000.
ART
CFR# DESCRIPTION STATUS RELEASE COMMENTS
---- ----------- ------ ------- --------
1 Support for Multiple Simultaneous Resolved 2.0 Resolved when IFU LM
Users of IFU LM Launched from a moves to web-based
Single Host operation.
2 Support for IFU ASCII Resolved 2.0 Introduced in Release
Configuration File 2.0 and enhanced in
Release 2.1.
3 Support for Ethernet Performance Closed 1.0 Already available.
Management Minor enhancements
requested to capture
"snapshot" of register
values rather than 15
minute intervals
(available in Release
1.1).
4 Support for Echoing Critical IP Closed 1.0 Already available.
Address Data on RS232 port
6 Support for Software Loading Resolved 2.0 Introduced in Release
2.0 and enhanced for
mass deployment in
Release 2.1.
7 [*] [*] [*]
8 Support for Multiple SNMP trap [*] 2.0 [*]
destinations
9 Support for IP address-based Resolved 2.1 [*]
Access Lists
[*] Confidential Treatment Requested
Page 1 of 1
69
EXHIBIT 8b
ART
CFR# Description Status Release Comments
---- ----------- ------ ------- --------
15 Context Sensitive Help Resolved 2.0 Will maintain ability for
IFU LM Help to run
Independently of IFU
LM.
16 Timestamps displayed in Local Resolved 2.0
Time
17 Link Manager Budget Calculation Closed 1.1 Clarification provided
Display to ART that a Transmit
Power reset will occur
and the link will be
"restarted". Graphic
change will occur in
Release 1.1 and will
include Yes/No option.
18 Remove references to SONET from Resolved 2.0
IFU LM when radio is Fast Ethernet
19 Alarm's Masked notification on Resolved 1.1 Add visual indication
front Link Manager screen which is set when one
or more alarms on the
IFU are masked. Also
add SNMP trap for
same event.
20 Correct GPI alarm text so spacing Closed 1.0 Text currently runs
is preserved together - spaces are
lost between words.
21 Prevent Serial Number field from Closed 1.1
being "selectable".
SOFTWARE RELEASE SCHEDULE
-------------------------
Release 1.0 January 3/00
Release 1.1 January 31/00
Release [*] [*]
Release [*] [*]
[*] Confidential Treatment Requested
Page 2 of 2
