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Exhibit 10.11
TURNSTONE SYSTEMS, INC. AND ALCATEL S.A.
OEM PURCHASE AGREEMENT
Supplier's Name:
Turnstone Systems, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
This Agreement is made by and between Alcatel SA ("Alcatel" or "Company") having
an office at ▇▇, ▇▇▇ ▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ for the ALCATEL group of
companies as per hereto attached Appendix G and Turnstone Systems, Inc.
("Turnstone" or "Supplier") having an office at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (hereinafter individually a "Party" and collectively the
"Parties"). Company agrees to purchase and Supplier agrees to sell in accordance
with the terms and conditions stated in this Agreement and any attachments to
this Agreement.
WHEREAS "Alcatel Group" means (i) any company in which Alcatel owns directly or
indirectly at least 50% of the stock with entitlement to vote for directors or
persons performing a function similar to that of director, or (ii) any
non-corporate entity where Alcatel owns directly or indirectly at least fifty
percent (50%) of the equity in each case of which Alcatel informs Turnstone in
writing requesting the company to be added to the Appendix G via mutually agreed
Appendices signed.
WHEREAS, Company wishes to purchase MATERIALs of Supplier's (design and)
manufacture for resale to Company's customers, and
WHEREAS, Supplier desires to sell such materials to Company for resale to
Company's customers,
THEREFORE, the parties agree as follows
AGREEMENT EFFECTIVE PERIOD
The term of this Agreement shall commence on June 1, 2001, and shall,
except as otherwise provided in this Agreement, continue for a period
of 3 years. Parties shall after each full year of the three year term
have the right to terminate this Agreement by giving the other Party 90
days prior written notice.
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TABLE OF CONTENTS
TERRITORY 4
MATERIAL 4
OPTION TO EXTEND 4
PRICE AND DISCOUNTS 4
COST REDUCTION 5
TERMS OF PAYMENT 5
FORECASTS 5
FOB 5
FREIGHT CLASSIFICATION 5
PREFERRED PARTNER; NON-EXCLUSIVE MARKET RIGHTS 5
SPECIFICATIONS OR DRAWINGS 6
ASSIGNMENT BY SUPPLIER 6
ASSIGNMENT BY COMPANY 7
BANKRUPTCY AND TERMINATION FOR FINANCIAL INSECURITY 7
CFC PACKAGING 7
CHOICE OF LAW 8
COMPLIANCE WITH LAWS 8
CONTINUING AVAILABILITY 8
DEFAULT 8
ELECTRONIC DATA INTERCHANGE 9
EPIDEMIC CONDITION 9
EXPORT CONTROL 11
FORCE MAJEURE 11
GOVERNMENT CONTRACT PROVISIONS 11
HEAVY METALS IN PACKAGING 12
IDENTIFICATION 12
IMPLEADER 12
INDEMNITY 12
LIMITATION OF LIABILITY 14
INFRINGEMENT 14
INSIGNIA 14
INSURANCE 15
INVOICING FOR GOODS 15
INVOICING FOR STOCKS 15
JURISDICTION 15
LICENSES 16
MARKING 16
MONTHLY ORDER AND SHIPMENT REPORTS 16
NON DISCLOSURE AGREEMENT 16
NON WAIVER 17
NOTICES 17
OPERATING SYSTEM SOFTWARE 17
OZONE DEPLETING CHEMICALS 18
OZONE DEPLETING SUBSTANCES LABELING 19
POINT OF SALE INFORMATION 19
MATERIAL CHANGES 19
MATERIAL CONFORMANCE REVIEWS 20
MATERIAL DOCUMENTATION 20
PURCHASE ORDERS 21
REGISTRATION AND RADIATION STANDARDS 21
INSPECTION OF MATERIAL 22
RELEASES VOID 22
REPAIRS NOT COVERED UNDER WARRANTY 22
REPAIR PROCEDURES 23
RIGHT OF ENTRY 23
SAFETY CERTIFICATION 23
SECTION HEADINGS 24
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SERVICES 24
SEVERABILITY 24
SHIPPING 24
SHIPPING INTERVAL 24
STORAGE OF PAID FOR STOCK 25
SUPPLIER'S INFORMATION 26
SURVIVAL OF OBLIGATIONS 27
TAXES 27
TECHNICAL SUPPORT 27
TERMINATION OF PURCHASE ORDER 27
TIMELY PERFORMANCE & PENALTY FOR LATE DELIVERY 28
TITLE AND RISK OF LOSS 28
TOXIC SUBSTANCES AND MATERIAL HAZARDS 28
TRAINING 29
PRODUCT MANAGEMENT MEETINGS 29
ROADMAPS 30
SALES AND MARKETING MEETINGS 30
EXCHANGE OF EQUIPMENT 31
OSS INTEGRATION 31
USE OF INFORMATION 31
VARIATION IN QUANTITY 32
WARRANTY 32
ENTIRE AGREEMENT 33
APPENDIX A - TURNSTONE PRICE GUIDE ▇▇
▇▇▇▇▇▇▇▇ ▇ - PRODUCT SPECIFICATIONS 37
APPENDIX C - MONTHLY ORDER SHIPMENT REPORTS 38
APPENDIX D - NON DISCLOSURE AGREEMENT 39
APPENDIX E - COMPREHENSIVE PRODUCT MAINTENANCE TERMS 40
APPENDIX F - TRAINING 52
APPENDIX G - ALCATEL UNITS 61
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1. TERRITORY
Supplier grants Company the non-exclusive, non-transferable,
world-wide right to market, distribute and sell the Materials to
Company's customers.
2. MATERIAL
"MATERIAL" as used in this Agreement shall mean all supplier
products that are listed in APPENDIX A and all products that might be
added to this Appendix A attached and made a part of this Agreement.
Such MATERIAL is hereby offered for sale by Supplier and may be
purchased by Company in accordance with the terms, conditions and
specifications stated in this Agreement. This Agreement is a
non-commitment agreement and MATERIAL shall be furnished by Supplier on
an as-ordered basis. "Specification(s)" as used in this Agreement shall
mean all of the specifications made part of this Agreement.
3. OPTION TO EXTEND
Company shall have the right to extend the period specified in
the section "AGREEMENT EFFECTIVE PERIOD" for up to twelve (12) months
by giving Supplier at least ninety (90) business days prior written
notice.
Within ten (10) business days of the date of Company's notice
to extend the period, Supplier shall notify Company in writing whether
Supplier proposes to revise the price(s) under this Agreement. If the
parties fail to agree on the revised price(s) within twenty (20)
business days after the date of Supplier's notice, Company's notice of
extension shall be considered withdrawn and prices for outstanding
orders or orders placed during the term of this Agreement shall not be
revised.
4. PRICE AND DISCOUNTS
Prices and discounts shall be based on cumulative purchase
volume as shown in APPENDIX A. Prices and discounts as listed in
APPENDIX A shall remain in effect during the term of this Agreement.
Supplier agrees not to quote discounts greater than [***]% for the
CX100/CX40 product family to [***] provided that Company continues to
actively and in good faith promote and competitively sell Supplier
products to these accounts. The CX100/CX40 product family includes all
test heads and other common equipment cards for those systems, but
excludes the SX500 Smart Splitter products. Company understands that
quotes have been issued to [***] prior to this OEM, that may have to be
honored, which do not adhere to this maximum discount. However, these
quoted discounts will be limited to the equipment quoted previously,
and will not be extended on new quotes.
During the effective term of this Agreement, in the event
Supplier and Company are marketing MATERIALs to the same prospective
customer account, Supplier and Company
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requested with respect to the omitted portions.
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shall work together in good faith to jointly present the most
competitive proposal for MATERIALs to such customer account.
5. COST REDUCTION
Both parties shall endeavor to reduce the costs of MATERIALs
furnished under this Agreement. If design, labor or material cost
reductions result from Company initiated changes or the sharing by
Supplier of other Company supplier agreements, [***] percent ([***]%)
of the cost reduction(s) shall be passed onto Company in the form of
reduced prices, except that if the cost reduction results from Supplier
initiated changes, Supplier shall furnish to Company a complete list of
expenses that Supplier incurred in effecting said cost reduction, if
any. Supplier shall be entitled to receive the benefits of the cost
reduction for the time period required to recover its implementation
expenses.
6. TERMS OF PAYMENT
Net thirty (30) business days from the date of invoice of the
MATERIAL.
7. FORECASTS
Company shall provide Supplier with a twelve (12) month
non-binding forecast submitted to Supplier by the fifth (5th) business
day of each calendar month. Such forecast shall be used by Supplier for
planning purposes only and shall not be deemed a commitment by Company
to purchase the MATERIAL shown in the forecast.
8. FOB
The MATERIAL shall be shipped FOB Supplier's location (or such
other Supplier's location as may be designated by Supplier). Company
shall select the carrier(s) and provide the name(s) of the carrier(s)
and Company's account number(s) with said carriers to Supplier within
thirty (30) days of execution of this Agreement.
9. FREIGHT CLASSIFICATION
MATERIAL purchased under this Agreement shall be shipped to
Company or Company's customers subject to freight charges appropriate
for goods classified as Data Communication Products. Supplier shall
indicate on the ▇▇▇▇ of lading that Company's contract rates apply.
10. PREFERRED PARTNER; NON-EXCLUSIVE MARKET RIGHTS
Company shall publicly designate Supplier and shall at all
times refer Supplier to all of Company's clients as Company's preferred
loop management partner. The Parties shall issue a mutually agreed upon
press release within 30 days announcing such designation.
This Agreement neither grants to Supplier an exclusive right
or privilege to sell to Company any or all MATERIALs of the type
described in the MATERIAL section which
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requested with respect to the omitted portions.
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Company may require, nor requires the purchase of any MATERIAL or other
MATERIALs from Supplier by Company. Therefore, Company may contract
with other manufacturers and suppliers for the procurement of
comparable MATERIALs. In addition, Company shall, at its sole
discretion, decide the extent to which Company will market advertise,
promote, support or otherwise assist in further offerings of the
MATERIAL.
Purchases by Company under this Agreement shall neither
restrict the right of Company to cease purchasing nor require Company
to continue any level of such purchases.
11. SPECIFICATIONS OR DRAWINGS
All Supplier's technical specifications, certifications and
product definitions are included by reference and further defined in
APPENDIX B. Supplier shall manufacture MATERIAL in accordance with
Specifications, so that MATERIAL conforms to such Specifications.
In accordance with the notification requirements outlined in
Section "MATERIAL CHANGES," Supplier shall provide Company with at
least thirty (30) business days prior written notice of any change to
be made by Supplier in the MATERIAL furnished pursuant to said
Specifications under this Agreement. Changes in Specifications shall in
no event apply to material already ordered.
If Company, in its sole discretion, does not agree to the
change proposed by Supplier, Company may submit a Modification Request
to address the change. If the Company's Modification Request is not an
acceptable solution, then in addition to all other rights and remedies
at law or equity or otherwise, and without any cost to or liability or
obligation of Company, Company shall have the right to terminate this
Agreement and to terminate any or all purchase orders for MATERIAL
affected by such change.
Supplier shall continue to supply MATERIAL to Company pursuant
to the Specifications for the term of the Agreement. If Supplier is
unable to continue to thus supply or discontinues manufacture of
MATERIAL, Company shall be entitled to one (1) year's advance notice,
provided (i) the discontinuance is at Supplier's election and (ii)
there has been a reasonable amount of purchases during the period
preceding Supplier's notice of discontinuance. Additionally, and if
requested by Company, Company and Supplier shall endeavor to develop an
alternative method of provisioning MATERIAL or Parts, which may include
licensing Manufacturing Rights to Company, subject to mutual agreement
between Company and Supplier.
12. ASSIGNMENT BY SUPPLIER
Supplier shall not assign any right or interest under this
Agreement (excepting solely for moneys due or to become due) without
the prior written consent of Company, provided however, no such consent
shall be required in connection with the sale of all or substantially
all of the assets of Supplier related to MATERIAL or in connection with
any merger,
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reorganization or sale of Supplier. Supplier shall be responsible to
Company for all Work performed by Supplier's subcontractor(s) at any
tier. In the event of an assignment by Supplier, Company may terminate
this Agreement or an order, in whole or in part, by written notice to
Supplier. In such case, Company's liability shall be limited to payment
of the amount due for work performed and/or MATERIAL provided by
Supplier up to and including date of termination.
13. ASSIGNMENT BY COMPANY
Company shall have the right to assign this Agreement or an
order and to assign its rights and delegate its duties under this
Agreement or an order either in whole or in part at any time and
without Supplier's consent to (i) any present or future associated
entity of Company; (ii) the, successors and assigns of Company or its
present or future associated entities; or (iii) any other entity
resulting from the sale, reorganization or other transfer of all or
part of the assets of Company or any associated entity. Company shall
give Supplier written notice of any assignment and delegation. The
assignment and delegation shall not affect any rights or duties that
Supplier or Company may then or thereafter have as to equipment,
software, services or materials ordered by Company prior to the
effective date of the assignment and delegation. Upon acceptance of the
assignment and delegation and assumption of the duties under this
Agreement or an order, Company shall be released and discharged, to the
extent of the assignment and delegation, from all further duties under
this Agreement or the order as to equipment, software, services or
materials so assigned.
14. BANKRUPTCY AND TERMINATION FOR FINANCIAL INSECURITY
Either party may terminate this Agreement by notice in
writing:
(i) if the other party makes an assignment for the
benefit of creditors (other than solely an assignment
of monies due); or:
(ii) if the other party evidences an inability to pay
debts as they become due, unless adequate assurance
of such ability to pay is provided within thirty (30)
days of such notice.
If a proceeding is commenced under any provision of the United
States Bankruptcy Code, voluntary or involuntary, by or against either
party, and this Agreement has not been terminated, the non-debtor party
may file a request with the bankruptcy court to have the court set a
date within sixty (60) days after the commencement of the case, by
which the debtor party will assume or reject this Agreement, and the
debtor party shall cooperate and take whatever steps necessary to
assume or reject the Agreement by such date.
15. CFC PACKAGING
Supplier warrants that all packaging materials furnished under
this Agreement and all packaging associated with MATERIAL furnished
under this Agreement were not
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manufactured using and do not contain chlorofluorocarbons. "Packaging"
means all bags, wrapping, boxes, cartons and any other packing
materials used for packaging. Supplier shall indemnify and hold Company
harmless for any liability, fine or penalty incurred by Company to any
third party or governmental agency arising out of Company's good faith
reliance upon said warranty.
16. CHOICE OF LAW
This Agreement and all transactions under it shall be governed
by the laws of the State of California excluding its choice of laws
rules and excluding the Convention for the International Sale of Goods.
Supplier agrees to submit to the jurisdiction of any court wherein an
action is commenced against Company based on a claim for which Supplier
has agreed to indemnify Company under this Agreement.
17. COMPLIANCE WITH LAWS
Each Party and all persons furnished by each Party shall
comply at their own expense with all applicable laws, ordinances,
regulations and codes, including the identification and procurement of
required permits, certificates, licenses, insurance, approvals and
inspections in performance under this Agreement.
18. CONTINUING AVAILABILITY
Supplier shall offer for sale to Company, during the term of
this Agreement MATERIAL conforming to the Specifications set forth in
this Agreement. Supplier further shall offer for sale to Company,
during the term of this Agreement and until [***] ([***]) years after
the expiration of this Agreement, maintenance, replacement, and repair
parts ("Parts") which are functionally equivalent and identical in form
and fit for the MATERIAL covered by this Agreement. The price for the
MATERIAL and Parts shall be the price set forth in Supplier's then
current agreement with Company for said MATERIAL or Parts or, if no
such agreement exists, at a price agreed upon by Company and Supplier.
If the parties fail to agree on a price, the price shall be a
reasonably competitive price for said MATERIAL or Parts at the time for
delivery. The MATERIAL and Parts shall be warranted as set forth in the
"WARRANTY" section of this Agreement. The term "Parts" is included in
the term "MATERIAL."
In the event Supplier fails to supply such MATERIAL or Parts
and Supplier is unable to obtain another source of supply for Company,
then Company and Supplier shall endeavor to develop an alternative
method of provisioning MATERIAL or Parts, which may include
manufacturing rights to Company. At that time, both parties shall
mutually determine necessary measures required for Company to obtain
MATERIAL under this license.
19. DEFAULT
If either party shall be in breach or default of any of the
terms, conditions or covenants of this Agreement or of any purchase
order, and if such breach or default shall
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continue for a period of ten (10) days after the giving of written
notice to the party in breach thereof by the party not in breach, then,
in addition to all other rights and remedies which the party not in
breach may have at law or equity or otherwise, the party not in breach
shall have the right to cancel this Agreement and/or any purchase
orders without any charge to or obligation or liability of the party
not in breach.
20. ELECTRONIC DATA INTERCHANGE
If requested by Company, Supplier shall use commercially
reasonable efforts to implement EDI at Supplier's sole expense.
21. EPIDEMIC CONDITION
If during the term of this Agreement and for six (6) months
after the last shipment date of MATERIAL under this Agreement Company
notifies Supplier that an "Epidemic Condition" has occurred, Supplier
shall prepare and propose a Corrective Action Plan ("CAP") with respect
to such MATERIAL within five (5) working days of such notification,
addressing implementation and procedure milestones for remedying such
Epidemic Condition(s). An extension of this time-frame is permissible
upon mutual written agreement of the parties.
Upon notification of the Epidemic Condition to Supplier,
Company shall have the right to postpone all or part of the shipments
of unshipped MATERIAL, by giving written notice of such postponement to
Supplier, pending correction of the Epidemic Condition. Such
postponement shall temporarily relieve Supplier of its shipment
liability and Company of its shipment acceptance liability. Should
Supplier not agree to the existence of an Epidemic Condition or should
Company not agree to the CAP, then Company shall have the right to
suspend all or part of its unshipped orders without liability to
Company or Supplier until such time as a mutually acceptable solution
is reached.
An Epidemic Condition will be considered to exist when one or
more of the following conditions occur:
(1) Failure reports or statistical samplings show that
MATERIAL shipped contain a potential safety hazard (such as personal
injury or death, fire, explosion, toxic emissions, etc.), or exhibit a
highly objectionable symptom (such as emissions of smoke, loud noises,
deformation of housing) or other disconcerting symptoms of this type.
(2) Reliability plots of relevant data indicate that the
MATERIAL has actual Mean Time Between Failures (MTBF) of less than 80%
of the MTBF specified by Supplier. The MTBF parameter of MATERIAL is
defined as the total operating or power-on time of any population under
observation ("T"), in hours, divided by the total number of critical
failures ("n") that have occurred during the observed period. A
critical failure is defined as a failure to operate per the
requirements of the Technical Specification. The total operating
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time of a population is the summation of operating time of individual
units in that population. MTBF is expressed as MTBF = T/n. An Epidemic
Condition shall exist when data derived from populations being tracked
confirms the condition with 80% confidence.
(3) MATERIAL Dead on Arrival (DOA) failures exceed the
Epidemic DOA failure rate which is defined as 1.2 x DOA specified in
the section of this Agreement entitled MATERIAL CONFORMANCE REVIEW.
Only major functional and visual/mechanical/appearance defects
are considered for determining Epidemic Condition. MATERIAL could be
either sampled or, a Company's option, 100% audited at Company
warehouses, factories or Company's customers' locations. If MATERIAL is
sampled, the data must have 80% or better statistical confidence.
For the purpose of this Agreement, functional DOA shall be
defined as any MATERIAL that during the test, installation or upon its
first use fails to operate as expected or specified.
Visual/mechanical/appearance DOA is defined as any MATERIAL containing
one or more major defects that would make the MATERIAL unfit for use or
installation.
An Epidemic Condition shall not include failures due to
customer misapplication, utilization of parts not approved by Supplier,
or chain failures induced by internally or externally integrated
subassemblies.
In the event that Supplier develops a remedy for the defect(s)
that caused the Epidemic Condition and Company agrees in writing that
the remedy is acceptable Supplier shall:
(a) Incorporate the remedy in the affected MATERIAL in accordance with
CAP.
(b) Ship all subsequent MATERIAL incorporating the required
modification correcting the defect(s) at no additional charge to
Company; and
(c) Repair and/or replace MATERIAL that caused the Epidemic Condition.
In the event that Company incurs costs due to such repair and/or
replacement, including but not limited to labor and shipping costs,
Supplier shall reimburse Company for such costs. Supplier shall bear
risk of in transit loss and damage for such repaired and/or replaced
MATERIAL.
Supplier and Company shall mutually agree in writing as to the
remedy's implementation schedule. Supplier shall use its best efforts
to implement the remedy in accordance with the agreed-upon schedule.
If Supplier is unable to develop a mutually agreeable remedy,
or does not adequately take into account the business interests of
Company, as reasonably agreed by the parties,
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Company may (1) develop and implement such remedy and, in such case,
implementation costs and risk of in-transit loss and damage shall be
allocated between the parties as set forth in this section, and/or (2)
cancel postponed orders without liability and return all MATERIAL
affected by such Epidemic Condition for full refund, payable by
Supplier within thirty (30) business days after receipt of returned
MATERIAL (with risk of loss or in-transit damage borne by Supplier)
and/or (3) terminate this Agreement without further liability.
22. EXPORT CONTROL
Supplier will not use, distribute, transfer or transmit any
MATERIALs, software or technical information (even if incorporated into
other MATERIALs) provided under this Agreement except in compliance
with U.S. export laws and regulations (the "Export Laws"). Supplier
will not, directly or indirectly, export or re-export the following
items to any country which is in the then current list of prohibited
countries specified in the applicable Export Laws: (a) software or
technical data disclosed or provided to Supplier by Company or
Company's subsidiaries or affiliates; or (b) the direct MATERIAL of
such software or technical data. Supplier agrees to promptly inform
Company in writing of any written authorization issued by the U.S.
Department of Commerce office of export licensing to export or
re-export any such items referenced in (a) or (b). The obligations
stated above in this clause will survive the expiration, cancellation
or termination of this Agreement or any other related agreement.
23. FORCE MAJEURE
Neither party shall be held responsible for any delay or
failure in performance of any part of this Agreement to the extent such
delay or failure is caused by fire, flood, strike, civil, governmental,
or military authority, act of God, or other similar causes beyond its
control and without the fault or negligence of the delayed or non
performing party or its subcontractors. Supplier's liability for loss
or damage to Company's MATERIAL in Supplier's possession or control
shall not be modified by this section. When a party's delay or
nonperformance continues for a period of at least fifteen (15) days,
the other party may terminate, at no charge, this Agreement or an order
under the Agreement.
24. GOVERNMENT CONTRACT PROVISIONS
The following provisions regarding equal opportunity, and all
applicable laws, rules, regulations and executive orders specifically
related thereto, including applicable provisions and sections from the
Federal Acquisition Regulation and all supplements thereto are
incorporated in this Agreement as they apply to work performed under
specific U.S. Government contracts: 41 CFR 60-1.4, Equal Opportunity;
41 CFR 60-1.7, Reports and Other Required Information; 41 CFR 60-1.8,
Segregated Facilities; 41 CFR 60-250.4, Affirmative Action For Disabled
Veterans and Veterans of the Vietnam Era (if in excess of $10,000); and
41 CFR 60-741.4, Affirmative Action for Disabled Workers (if in excess
of $2,500), wherein the terms "contractor" and "subcontractor" shall
mean "Supplier". In addition, orders placed under this Agreement
containing a notation that the material or
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services are intended for use under Government contracts shall be
subject to such other Government provisions printed, typed or written
thereon, or on the reverse side thereof, or in attachments thereto.
25. HEAVY METALS IN PACKAGING
Supplier warrants to Company that no lead, cadmium, mercury or
hexavalent chromium have been intentionally added to any packaging or
packaging component (as defined under applicable laws) to be provided
to Company under this Agreement and that packaging materials were not
manufactured using and do not contain chlorofluorocarbons. Supplier
further warrants to Company that the sum of the concentration levels of
lead, cadmium, mercury and hexavalent chromium in the package or
packaging component provided to Company under this Agreement does not
exceed 100 parts per million. Upon request, Supplier shall provide to
Company Certificates of Compliance certifying that the packaging and/or
packaging components provided under this Agreement are in compliance
with the requirements set forth above in this section.
26. IDENTIFICATION
Supplier shall not, without Company's prior written consent,
engage in publicity related to this Agreement, or make public use of
any Identification in any circumstances related to this Agreement.
Notwithstanding the foregoing, Company and Supplier agree to issue a
mutually acceptable press release regarding this Agreement as soon as
reasonably possible following execution of this Agreement. Company
consents to Supplier's disclosure of this Agreement as may be required
by federal and state securities laws and regulations. Supplier shall
request confidential treatment of any such disclosure of this
Agreement. "Identification" means any semblance of any trade name,
trademark, service ▇▇▇▇, insignia, symbol, logo, or any other
designation, or drawing of Company or its affiliates. Supplier shall
remove or obliterate any Identification prior to any use or disposition
of any MATERIAL rejected or not purchased by Company.
27. IMPLEADER
Supplier shall not implead or bring an action against Company
based on any claim by any person for personal injury or death to an
employee of Company for which Company has previously paid or is
obligated to pay worker's compensation benefits to such employee or
claimant and for which such employee or claimant could not otherwise
bring legal action against Company.
28. INDEMNITY
At Company's request, Supplier agrees to indemnify, defend and
hold harmless Company, its affiliates, employees, successors and
assigns (all referred to as "Company") from and against any losses,
damages, claims, fines, penalties and expenses (including reasonable
attorney's fees) that arise out of or result from: (i) injuries or
death to persons or damage to property, including theft, in any way
arising out of or caused or alleged to have
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been caused by the services performed by, or MATERIAL provided by
Supplier; or (ii) any failure of Supplier to perform its obligations
under this Agreement. Notwithstanding the foregoing, Supplier's duty of
indemnification pursuant to this article does not arise for loss or
injury caused by:
(i) gross negligence, misuse, abuse of, or accident to the MATERIAL;
(ii) gross negligence by a person other than Supplier or under
Supplier's authority;
(iii) improper or inadequate operation, maintenance, or repair by a
person other than Supplier or under Supplier's authority not in
accordance with this Agreement;
(iv) modification to MATERIAL by Company or a third party in a manner
not authorized in writing by Supplier and not in accordance with this
Agreement.
Supplier's obligations pursuant to this article are further subject to
the conditions that Company:
(i) gives Supplier timely notice of any claim or threatened or actual
suit or action;
(ii) gives Supplier sole control of the defense and settlement of such
action, claim or suit and related settlement negotiations; provided
that Supplier may not make any admission of liability on the Company's
behalf, without Company's prior written consent and further provided
that such control shall continue only for so long as Supplier is
defending such claim, suit or action in good faith; and
(iii) reasonably cooperates in the defense and settlement of such
claim, suit or action at Supplier's sole expense.
At Supplier's request, Company agrees to indemnify, defend and hold
harmless Supplier, its affiliates, employees, successors and assigns
(all referred to as "Supplier") from and against any losses, damages,
claims, fines, penalties and expenses (including reasonable attorney's
fees) that arise out of or result from: (1) injuries or death to
persons or damage to property, including theft, in any way arising out
of or caused or alleged to have been caused by the negligence of
Company (including all associated persons as included above); (2)
product liability claims arising out of the use of parts or services
not provided by Supplier but which were combined or operated with the
MATERIAL; (3) any warranty issued by Company in excess of that provided
by Supplier pursuant to this Agreement; or (4) any failure of Company
to perform its obligations under this Agreement. Notwithstanding the
foregoing, Company's indemnification pursuant to this article does not
arise for loss or injury caused by gross negligence by Supplier or a
person under Supplier's authority. Company's obligations pursuant to
this article are further subject to the conditions that Supplier:
(i) gives Company timely notice of any claim or threatened or actual
suit or action;
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(ii) gives Company sole control of the defense and settlement of such
action, claim or suit and related settlement negotiations; provided
that Company may not make any admission of liability on the Supplier's
behalf, without Supplier's prior written consent and further provided
that such control shall continue only for so long as Company is
defending such claim, suit or action in good faith; and
(iii) reasonably cooperates in the defense and settlement of such
claim, suit or action.
29. LIMITATION OF LIABILITY
NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR LOST PROFITS,
CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES EVEN
IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
These limitations of liability shall not apply to the Parties
obligations under the clauses INFRINGEMENT, USE OF INFORMATION or
SUPPLIER'S INFORMATION or to any liability arising from or related to
any personal injury (including death) or damage to tangible property
caused by Supplier in causing its obligations hereunder.
30. INFRINGEMENT
Supplier shall indemnify and save harmless Company, its
affiliates and their customers, officers, directors, employees (all
referred to in this section as "Company") from and against any losses,
damages, liabilities, fines, penalties, and expenses (including
reasonable attorneys' fees) that arise out of or result from any and
all claims (i) of infringement of any patent, copyright, trademark or
trade secret right, or other intellectual property right, private
right, or any other proprietary or personal interest, and (ii) related
to the subject matter of this Agreement or performance under or in
contemplation of it (an Infringement Claim). If the Infringement Claim
arises solely from Supplier's adherence to Company's written
instructions regarding services or tangible or intangible goods
provided by Supplier (Items) and if the Items are not (i) commercial
items available on the open market or the same as such items, or (ii)
items of Supplier's designated origin, design or selection, Company
shall indemnify Supplier. Company or Supplier (at Company's request)
shall defend or settle, at its own expense any demand, action or suit
on any Infringement Claim for which it is indemnitor under the
preceding provisions and each shall timely notify the other of any
assertion against it or any Infringement Claim and shall cooperate in
good faith with the other to facilitate the defense of any such Claim.
31. INSIGNIA
Upon Company's written request, "Insignia", including certain
trademarks, trade names, insignia, symbols, decorative designs or
packaging designs of Company, or evidences of Company's inspection will
be properly affixed by Supplier to the MATERIAL furnished or its
packaging. Such Insignia will not be affixed, used or otherwise
displayed on the MATERIAL furnished or in connection therewith without
written approval by Company.
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The manner in which such Insignia will be affixed must be approved in
writing by Company in accordance with standards established by Company.
Company shall retain all right, title and interest in any and all
packaging designs, finished artwork and separations furnished to
Supplier. This section does not reduce or modify Supplier's obligations
under the "IDENTIFICATION" and "USE OF INFORMATION" section.
32. INSURANCE
Supplier shall maintain insurance with a reputable insurance
company in an amount reasonably sufficient to cover all of its
obligations under this Agreement and in no event less than that
required by California state law. Upon Company's request, Supplier
shall furnish to Company a certificate of insurance evidencing that
such insurance is in effect. The certificate shall also state that
Company shall be notified by Supplier's insurance carrier(s) within
thirty (30) days of any cancellation or material change in such policy.
Supplier shall in such event furnish a new certificate in the event of
cancellation or expiration of any insurance evidencing that replacement
coverage is in effect.
33. INVOICING FOR GOODS
Supplier shall: (i) render original invoice, or as otherwise
specified in this Agreement, showing Agreement and order number,
through routing and weight, (ii) render separate invoices for each
shipment within twenty-four (24) hours after shipment, and (iii) mail
invoices with copies of bills of lading and shipping notices to the
address shown on this Agreement or order. If prepayment of
transportation charges is authorized, Supplier shall include the
transportation charges from the F.O.B. point to the destination as a
separate item on the invoice stating the name of the carrier used.
34. INVOICING FOR STOCKS
If Company requests for reasons other than covered by Section
"FORCE MAJEURE", that shipment be postponed beyond the date shown on a
purchase order, Supplier may invoice Company as of the original
scheduled delivery date for MATERIAL manufactured under this Agreement,
if it has been inspected and approved by Company's designated quality
organization (provided inspection has been specified in this Agreement
or in an order issued under this Agreement).
35. JURISDICTION
Supplier agrees that any action or legal proceeding arising
out of this Agreement shall be brought only in a court of competent
jurisdiction in the United States of America and Supplier expressly
submits to, and accepts the jurisdiction of, any such court in
connection with such action or proceeding and Supplier further consents
to the enforcement of any judgment against it arising therefrom in any
jurisdiction in which it has or shall have any assets.
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36. LICENSES
No Licenses, express or implied, under any patents are granted
by either Party to the other Party under this Agreement or order.
37. MARKING
All MATERIAL furnished under this Agreement shall be marked
for identification purposes in accordance with the specifications to be
provided pursuant to this Agreement and as follows:
(a) with Supplier, vendor code number, model/serial number; and
(b) with month and year of manufacture; and
(c) Common Language Equipment Identification (CLEI) Note: Common
Language and CLEI are trademarks of ▇▇▇▇ Communications Research; and
(d) Company Apparatus code, serial, or model numbers; and
(e) Warranty Eligibility System (▇▇▇) tracking information; and
(f) Underwriters Laboratories and Federal Communications Commission
markings as appropriate.
(g) CE Marking
In addition, Supplier agrees to add any other identification
which might be requested in writing by Company. Charges, if any for
such additional identification marking shall be as agreed upon by
Supplier and Company prior to the implementation of any change. This
Section does not reduce or modify Supplier's obligations under Section
26 IDENTIFICATION.
38. MONTHLY ORDER AND SHIPMENT REPORTS
Company shall render monthly order and shipment reports on or
before the tenth working day of the succeeding month containing the
information required on report form APPENDIX C. These forms will be
furnished by Supplier.
39. NON DISCLOSURE AGREEMENT
Whereas Company and Supplier each expect to disclose to the
other party certain information concerning MATERIALs, business and
strategies which are considered confidential and proprietary and which
neither party wants to disclose to others, they have entered into a Non
Disclosure Agreement. A copy of the Non Disclosure Agreement is
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attached hereto and made a part hereof, as APPENDIX D. This section
does not reduce or modify Supplier's obligations under Section "USE OF
INFORMATION."
40. NON WAIVER
The failure of either party at any time to enforce any right
or remedy available to it under this Agreement or otherwise with
respect to any breach or failure by the other party shall not be
construed to be a waiver of such right or remedy with respect to any
other breach or failure by the other party.
41. NOTICES
Any notice given or demanded which under the terms of this
Agreement or under any statute must or may be given or made by Supplier
or Company shall be in writing and shall be given or made by confirmed
facsimile, or similar communication or by certified or registered mail
addressed to the respective parties as follows
To Company: Alcatel ▇▇▇▇ N.V.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇
▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-OR-
To Supplier: Turnstone Systems, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Contracts Administration
Such notice or demand shall be deemed to have been given or
made when sent by facsimile, or other communication or when deposited,
postage prepaid in the U.S. mail.
The above addresses may be changed at any time by giving prior
written notice as above provided.
42. OPERATING SYSTEM SOFTWARE
The term MATERIAL includes any software (operating program in
machine readable form and related documentation) and storage media
therefor normally embedded in the MATERIAL. Title to the software,
including copyright, shall remain in Supplier. The party having title
to the MATERIAL shall have title to the software storage media. For the
life of the MATERIAL listed in this Agreement, Supplier grants to
Company and any subsequent purchaser, lessee or other end user
(referred to collectively in this section as "end user") a
non-exclusive license to use said software on the MATERIAL on which it
was delivered.
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Company and any subsequent end user may copy the software for use on
such MATERIAL with which it was originally delivered and for archival
purposes, but shall not knowingly reproduce either the original
software for distribution to others. Procedures for software revisions
that include, but are not limited to upgrades, updates and fixes are
stated in Appendix E: "Comprehensive Product Maintenance".
43. OZONE DEPLETING CHEMICALS
Supplier hereby warrants that it is aware of international
agreements and pending legislation in several nations, including the
United States, which would limit, ban and/or tax importation of any
MATERIAL containing, or produced using ozone depleting chemicals
("ODCs"), including chloroflurocarbons, halons and certain chlorinated
solvents. Supplier hereby warrants that the MATERIAL furnished to
Company will conform to all applicable requirements established
pursuant to such agreements, legislation and regulations, and the
MATERIAL furnished to Company will be able to be imported and used
lawfully (and without additional taxes associated with ODCs not
reported to Company by Supplier as set forth in this section) under all
such agreements, legislation and requirements. Supplier also warrants
that it is currently reducing, or if Supplier is not the manufacturer
of the MATERIAL, is currently causing the manufacturing vendor to
reduce and will, in an expeditious manner, eliminate, or, as
applicable, have its manufacturing vendor eliminate the use of ODCs in
the manufacture of the MATERIAL.
If the MATERIAL furnished by Supplier under this Agreement is
manufactured outside the United States, Supplier shall, upon execution
of this Agreement, and at any time that new MATERIALs are added to this
Agreement or changes are made to the MATERIAL furnished under this
Agreement, complete, sign and return to Company the attached ODC
Content Certification. The ODC Content Certification must be signed by
Supplier's facility manager, corporate officer or his delegate.
The term "ODC content" on the ODC Content Certification means
the total pounds of ODC used directly in the manufacture of each unit
of MATERIAL. This includes all ODCs used in the manufacturing and
assembly operations for the MATERIAL plus all ODCs used by Supplier's
vendors and any other vendors in producing components or other
MATERIALs incorporated into the MATERIAL sold to Company.
Supplier is responsible to obtain information on the ODC
content of all components and other MATERIALs acquired to manufacture
the MATERIAL and to incorporate such information into the total ODC
content reported to Company. Provided however, that Supplier should not
include in the ODC content those components or other MATERIALs which
are manufactured in the United States. Supplier hereby warrants to
Company that all information furnished by Supplier on the ODC Content
Certification is complete and accurate and that Company may rely on
such information for any purpose, including but not limited to
providing reports to government agencies or otherwise complying with
applicable laws.
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Supplier shall defend, indemnify and hold Company harmless of and from
any claims, demands, suits, judgments, liabilities, fines, penalties,
costs and expenses (including additional ODC taxes as provided for in
paragraph one of this section and reasonable attorney's fees) which
Company may incur under any applicable federal, state, or local laws or
international agreements, and any and all amendments thereto by reason
of Company's use of reliance on the information furnished to Company by
Supplier on the ODC Content Certification or by reason of Supplier's
breach of this section. Supplier shall cooperate with Company in
responding to any inquiry concerning the use of ODCs to manufacture the
MATERIAL or components thereof and to execute without additional charge
any documents reasonably required to certify the absence or quantity of
ODCs used to manufacture the MATERIAL or components thereof.
44. OZONE DEPLETING SUBSTANCES LABELING
Supplier warrants and certifies that all MATERIAL and other
MATERIALs, including packaging and packaging components, provided to
Company under this Agreement have been accurately labeled, in
accordance with the requirements of 40 CFR, Part 82 entitled
"Protection of Stratospheric Ozone, Subpart E- The Labeling of
MATERIALs Using Ozone Depleting Substances."
45. POINT OF SALE INFORMATION
Company agrees to provide Supplier monthly written reports of
the areas where Company has sold Supplier MATERIAL and the respective
quantities that are sold per area for the purposes of Supplier
compensating Supplier's sales personnel. Supplier shall compensate its
salespeople for Company's sales of Supplier products to their accounts
on at least the same or substantially similar terms as if they had sold
the same products directly. Company will compensate its salespeople on
sales of Supplier products in a manner similar to the compensation
received on other OEM products.
46. MATERIAL CHANGES
Supplier shall provide Company with at least thirty (30) days,
prior written notice of any change proposed to be made in accordance
with this Agreement, or in the Specification and documentation covered
by this Agreement that would impact upon: (i) reliability, (ii)
requirements of the Specification, or (iii) form, fit or function (as
defined below).
The only exception will be in those cases where an extremely
hazardous or unsatisfactory condition requires immediate action. In
such cases, verbal notification shall be made, followed by Supplier's
immediate written confirmation.
Supplier shall submit changes to the following address:
To Company: Alcatel ▇▇▇▇ N.V.
▇▇▇▇▇▇▇ Wellesplein 1
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B-2018 Antwerpen
Belgium
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
If, as mutually agreed by Company and Supplier, sufficient
changes have been made to warrant a MATERIAL re-qualification, such
re-qualification will be performed at no cost to Company unless
otherwise agreed. MATERIAL shall be in accordance with the latest
information stated or referenced in the Specification.
If the plan for MATERIAL Change is not accepted by Company, in
addition to all other rights and remedies at law or equity or
otherwise, and without any cost to or liability or obligation of
Company, Company shall have the right to terminate this Agreement and
to terminate any or all orders for MATERIAL affected by such change.
Notwithstanding the above, Supplier shall continue to provide the
current MATERIAL for a period of twelve (12) months from the date the
change is effective.
47. MATERIAL CONFORMANCE REVIEWS
Supplier shall, utilizing documented procedures specified
herein, make such tests and inspections as are necessary to insure that
MATERIAL meets all technical requirements of the MATERIAL
specification. Supplier shall provide, without charge, any production
testing facilities and personnel required to inspect the MATERIAL under
Quality Program Specification (QPS) No. 40.030, as changed from time to
time with Supplier's written approval. Company reserves the right to
inspect MATERIAL prior to shipment from Supplier or Supplier's
subcontractor(s). Such inspection shall be conducted by Company's
Engineering and Environmental Technologies (EE&T) organization
utilizing a 0.65% Acceptability Level (AQL) sampling plan as described
in QPS 40.030. If MATERIAL fails inspection, Supplier agrees to pay for
all re-inspection costs. Inspection requirements may be waived only by
written notification from Company's Engineering and Environmental
Technologies (EE&T) organization. In the event that any or all work
under this Agreement is subcontracted to another Supplier, Company
reserves the right to conduct the aforementioned inspections at the
subcontractors facilities.
48. MATERIAL DOCUMENTATION
Supplier shall furnish, at no charge, MATERIAL documentation,
and any succeeding changes thereto, as described in the Technical
Specification. Company may use, reproduce, reformat, modify and
distribute such MATERIAL documentation, subject in each instance to
Supplier's prior review and written approval, which approval shall not
be unreasonably withheld.
Company shall reproduce Supplier's copyright notice contained
in any documentation reproduced without change by Company. For
documentation, which is reformatted or
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modified by Company, Company shall have the right to place only
Company's own copyright notice on the reformatted or modified
documentation. It is the intent of the parties that Company's copyright
notice shall be interpreted to protect the underlying copyright rights
of Supplier to the documentation to the extent such underlying rights
are owned by Supplier.
49. PURCHASE ORDERS
Purchase orders issued under this Agreement shall be sent to
the following address:
Turnstone Systems, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
Attn.: Customer Service
Purchase orders shall specify: (i) description of MATERIAL,
inclusive of any numerical/alphabetical identification referenced in
the price list in this Agreement, (ii) delivery date, (iii) applicable
price, (iv) location to which the MATERIAL is to be shipped and (v)
location to which invoices shall be sent for payment.
50. REGISTRATION AND RADIATION STANDARDS
When MATERIAL furnished under this Agreement is subject CE
rules or ETSI Rules and Regulations, as may be amended from time to
time (hereinafter "CE Rules"), Supplier warrants that such MATERIAL
complies with the registration, certification, type-acceptance and/or
verification standards of the CE rules including, but not limited to,
all labeling, customer instruction requirements, and the suppression of
radiation to specified levels. Supplier shall also establish periodic
on-going compliance retesting and follow a Quality Control program,
submitted by Company, to assure that MATERIAL shipped complies with the
applicable CE rules. Supplier shall indemnify and save Company harmless
from any liability, fines, penalties, claims or demands (including the
costs, expenses and reasonable attorney's fees on account thereof) that
may be made because of Supplier's noncompliance with the applicable CE
rules. Supplier shall defend Company, at Company's request, against
such liability, claim or demand.
In addition, should MATERIAL which is subject the CE rules,
during use generate harmful interference to radio communications,
Supplier shall provide the Company information relating to methods of
suppressing such interference and pay the cost of suppressing such
interference or, at the option of Company, accept the return of the
MATERIAL and refund to Company the price paid for the MATERIAL less a
reasonable amount for depreciation, if applicable.
To the extent that MATERIAL furnished under this Agreement is
also subject to CE rules governing the use of the MATERIAL as a
component in a system as identified in
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Supplier's Technical Specifications, Company shall be responsible for
compliance with the applicable CE rules governing the system. Supplier
shall fully cooperate with Company, by providing technical support and
information, and, upon written request from Company, shall modify
MATERIAL to enable Company to ensure ongoing compliance with the CE
rules. Company shall pay any increase in Supplier's costs and/or
expenses resulting from Company's request to modify MATERIAL to enable
Company to comply with the CE rules.
Nothing in this section shall be deemed to diminish or
otherwise limit Supplier's obligations under the "WARRANTY" section or
any other section of this Agreement.
51. INSPECTION OF MATERIAL
Company may perform a visual and functional inspection of
MATERIAL received prior to acceptance or rejection, and may refuse to
accept MATERIAL which does not conform to the specifications of this
Agreement. If, after [***] ([***]) calendar days from the date of
delivery by Supplier, Company has not rejected MATERIAL by providing
written notice to Supplier, it will be deemed accepted by Company. For
purposes of this provision, functional and visual inspection shall have
the same meaning as in paragraph 21 herein; i.e., confirmation that the
MATERIAL does not contain one or more major defects that would make the
MATERIAL unfit for use or installation, or that, during test, the
MATERIAL operates as specified.
Company may only reject MATERIAL which has failed the above
visual and/or functional inspection. Company's sole remedies upon
rejection of MATERIAL are: (1) return rejected MATERIAL for full credit
at the price charged plus delivery charges; or (2) have rejected
MATERIAL replaced by Supplier at the purchase price stipulated in this
Agreement. Supplier shall incur all transportation costs and assume
in-transit risk of loss and damage of all MATERIAL returned under this
provision to Supplier.
52. RELEASES VOID
Neither party shall require (i) waivers or releases of any
personal rights or (ii) execution of documents which conflict with the
terms of this Agreement, from employees, representatives or customers
of the other in connection with visits to its premises and both parties
agree that no such releases, waivers or documents shall be pleaded by
them or third persons in any action or proceeding.
53. REPAIRS NOT COVERED UNDER WARRANTY
In addition to repairs provided for in section 18 Supplier
shall provide repair service on all MATERIAL ordered under this
Agreement during the term of this Agreement. MATERIAL to be repaired
under this section will be returned to a location designated by
Supplier, and unless otherwise agreed upon by Supplier and Company,
Supplier shall ship the repaired MATERIAL which meets the
Specifications set forth in the "SPECIFICATIONS OR DRAWINGS" section
and all other Specifications within 10 business days of receipt of the
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the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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defective or non-conforming MATERIAL. With the concurrence and
scheduling of Company, repair may be made by Supplier on site.
If MATERIAL is returned to Supplier for repair as provided for
in this section and is determined to be beyond repair as defined in
section 18, Supplier shall so notify Company. If requested by Company,
Supplier will sell to Company a replacement at the price set forth in
Supplier's then current agreement with Company for said MATERIAL or, if
no such agreement exists, at a price agreed upon by Supplier and
Company. If the parties fail to agree on a price, the price shall be a
reasonably competitive price for such MATERIAL at the time for
delivery. Further, if requested by Company, Supplier shall take the
necessary steps to dispose of the unrepairable MATERIAL and pay to
Company the salvage value, if any. Replacement and repaired MATERIAL
shall be warranted as set forth in the "WARRANTY" section.
This Agreement does not grant Supplier an exclusive privilege
to repair any or all of the MATERIAL purchased under this Agreement for
which Company may require repair; and Company may perform the repairs
or contract with others for these services.
All transportation costs of and in transit risk of loss and
damage to MATERIAL returned to Supplier for repair under this section
will be borne by Company and all transportation costs of and in transit
risk of loss and damage to such repaired or replacement MATERIAL
returned to Company will be borne by Company.
Repairs performed under this section will be charged on a Time
and Materials basis as according to Supplier's then current Time and
Material charges.
54. REPAIR PROCEDURES
Repair Procedures are fully stated in Appendix E.
55. RIGHT OF ENTRY
Each party shall have the right to enter the premises of the
other party during standard business hours with respect to the
performance of this Agreement, including an inspection or a Quality
Review, subject to all plant rules and regulations, clearances,
security regulations and procedures as applicable. Each party shall
provide safe and proper facilities for such purpose. No charge shall be
made for such visits. It is agreed that prior notification will be
given when access is required.
56. SAFETY CERTIFICATION
All safety certifications applicable to the Supplier MATERIAL
are listed in Appendix B.
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57. SECTION HEADINGS
The headings of the sections in this Agreement are inserted
for convenience only and are not intended to affect the meaning or
interpretation of this Agreement.
58. SERVICES
Visits by Supplier's representatives or its suppliers'
representatives for inspection, adjustment or other similar purposes in
connection with MATERIAL purchased under this Agreement shall for all
purposes be deemed "Work under this Agreement" and shall be at no
charge to Company unless otherwise agreed in writing between the
parties.
59. SEVERABILITY
If any of the provisions of this Agreement shall be invalid or
unenforceable, such invalidity or unenforceability shall not invalidate
or render unenforceable the entire Agreement, but rather the entire
Agreement shall be construed as if not containing the particular
invalid or unenforceable provision or provisions, and the rights and
obligations of Supplier and Company shall be construed and enforced
accordingly.
60. SHIPPING
Supplier shall: (i) ship the MATERIAL covered by this
Agreement or order complete unless instructed otherwise, (ii) ship to
the destination designated in the Agreement or order, (iii) ship
according to routing instructions given by Company, (iv) place the
Agreement and order number on all subordinate documents, (v) enclose a
packing memorandum with each shipment and, when more than one package
is shipped, identify the package containing the memorandum; and (vi)
▇▇▇▇ the order number on all packages and shipping papers. Adequate
protective packing shall be furnished at no additional charge. Shipping
and routing instructions may be furnished or altered by Company without
a writing. If Supplier does not comply with the terms of the FOB
section of the Agreement or order or with Company's shipping or routing
instructions, Supplier authorizes Company to deduct from any invoice of
Supplier (or to charge back to Supplier), any increased cost incurred
by Company as a result of Supplier's noncompliance.
61. SHIPPING INTERVAL
The delivery schedule applicable to each purchase order will
be agreed upon by Supplier and Company and set forth in the purchase
order. (Note: Supplier has indicated that MATERIAL can usually be
shipped an average of [***] after receipt of Company's purchase order
for forecasted demand; however, in no event shall the delivery interval
exceed [***] after receipt of purchase order, even when Company has not
provided a forecast).
If Supplier exceeds the above maximum interval then in
addition to all other rights and remedies at law or equity or
otherwise, and without any liability or obligation of Company, Company
shall have the right to: (a) cancel such purchase order, or (b) extend
such delivery date to a later date, subject, however, to the right to
cancel as in (a) preceding if
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the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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delivery is not made or performance is not completed on or before such
extended delivery date. If Company elects to extend such delivery date,
Supplier shall absorb the difference between the charges to ship normal
transportation and the charges to ship premium overnight.
If a purchase order is canceled by Company pursuant to the
above, Company shall have the right to retain or return any or all
MATERIAL received by or paid for by Company under such purchase order.
Within fifteen (15) business days of Supplier's receipt of returned
MATERIAL, Supplier shall reimburse Company for the costs of shipping
the MATERIAL returned to Supplier and for any amounts, including
shipping costs, previously paid by Company for the MATERIAL. Company
shall pay for any MATERIAL it retains at the prices set forth in
APPENDIX A, less applicable discounts which shall be applied on the
basis of the quantity specified in the purchase order.
If, during the course of this Agreement, Supplier determines
that Supplier will no longer be able to ship within the above
interval, Supplier shall immediately notify Company's buyer to that
effect. Supplier shall also notify Company's buyer, as soon as it
becomes apparent, if Supplier is unable to meet the delivery date for
an order. However, nothing contained in this paragraph shall waive
Company's rights as set forth above in this section.
62. STORAGE OF PAID FOR STOCK
Subject to the section "OPERATING SYSTEM SOFTWARE", Company
has and shall have at all times all right, title and interest in all
MATERIAL invoiced to Company in accordance with the section "INVOICING
FOR STOCKS". Such MATERIAL shall be referred to in this section as
"Company Property." Supplier shall store such Company Property without
cost to Company at Supplier's A-Plus Manufacturing Corp., ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ facility and ship such Company Property as
ordered by Company. In addition, Supplier shall:
(i) Be responsible for the safekeeping of the Company
Property, assume all risks of loss or damage to the same and be liable
for the full actual value of such Company Property. In case of removal
of all or any part of the Company Property from one building to
another, Supplier's responsibility for loss or damage shall continue
and Supplier shall give Company at least ten (10) days advance notice
in writing of the removal, except when the removal is required to
comply with Company's shipping orders or to protect the Company
Property from loss or damage.
(ii) Store the Company Property safely, indoors in protected
areas approved by Company. Store the Company Property segregated from
other property in sections of Supplier's plant marked Property of
Company.
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(iii) Deliver the Company Property only to Company or
Company's designated customers in accordance with Company's orders or
upon Company's demand, FOB Supplier's plant without additional charge
for removal, packing, or crating.
(iv) Supplier shall not allow any security interest, lien, tax
lien or other encumbrance (collectively referred to as "encumbrance")
to be placed on any Company Property. Supplier shall give Company
immediate written notice should any third party attempt to place or
place an encumbrance on such Company Property. Supplier shall indemnify
and hold Company harmless from any such encumbrance. Supplier shall, at
Company's request, promptly execute a "protective notice" UCC-1 form
and all other documents reasonably necessary to enable Company to
protect its interest in such Company Property. This Agreement shall
constitute the security agreement required by the UCC of the
appropriate state.
(v) Company may inspect, inventory, and authenticate the
account of the Company Property during Supplier's normal business
hours. Supplier shall provide Company access to the premises where all
such Company Property is located.
The obligations assumed by Supplier with respect to the
Company Property are for the protection of Company's property. If
Supplier defaults in carrying out Supplier's obligations under this
Agreement, then, at no cost to Company and upon twenty-four (24) hours
notice to Supplier, Company may cancel this Agreement in whole or in
part or withdraw all or any part of the Company Property, or both.
Supplier shall, at Company's option, return to Company or hold for
Company's disposition any or all of such Company Property in Supplier's
possession.
63. SUPPLIER'S INFORMATION
Company shall view as Supplier's property any document, print,
tape, disc, tool, or other tangible information-conveying or
performance-aiding article owned or controlled by Supplier and
identified by Supplier as proprietary/confidential either in writing or
orally. The aforementioned material and information may be identified
by Supplier as proprietary/confidential verbally and shall be followed
up by written notice from Supplier to Company. Company shall, at no
charge to Supplier, and as Supplier directs, destroy or surrender to
Supplier promptly at its request any such article or any copy of such
Information. Company shall keep Information confidential and use it
only in performing under this Agreement and obligate its employees,
subcontractors and others working for it to do so, provided that the
foregoing shall not apply to information previously known to Company
free of obligation, or made public through no fault imputable to
Company.
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64. SURVIVAL OF OBLIGATIONS
The obligations of the parties under this Agreement which by
their nature would continue beyond the termination, cancellation or
expiration of this Agreement shall survive termination, cancellation or
expiration of this Agreement.
65. TAXES
Company shall reimburse Supplier only for the following tax
payments with respect to transactions under this Agreement unless
Company advises Supplier than an exemption applies: state and local
sales and use taxes, as applicable. Taxes payable by Company shall be
billed as separate items on Supplier's invoices and shall not be
included in Supplier's prices. Company shall have the right to have
Supplier contest any such taxes that Company deems improperly levied at
Company's expense and subject to Company's direction and control.
66. TECHNICAL SUPPORT
Technical Support is fully elaborated in Appendix E
Company shall be entitled to ongoing technical support,
including field service and assistance and technical support in the
development of customer proposals, provided, however, that the
availability or performance of this technical support service shall not
be construed as altering or affecting Supplier's obligations as set
forth in the WARRANTY Section or elsewhere provided for in this
Agreement.
It is the intent of this Agreement that the Supplier shall
provide initial training and ongoing occasional updates.. Charges for
field service technical support, will be based on Supplier's then
current standard charges for such services.
67. TERMINATION OF PURCHASE ORDER
Company may at any time terminate any portion or the total
quantity of any purchase order(s) placed under this Agreement.
Company's liability to Supplier with respect to such termination shall
be limited to (i) Supplier's purchase price of all components for the
MATERIAL (not usable in Supplier's other operations or salable to
Supplier's other customers), plus (ii) the actual costs incurred by
Supplier in procuring and manufacturing MATERIAL (not usable in
Supplier's other operations or salable to Supplier's other customers)
in process as of the date of giving notice of termination, less (iii)
any salvage value thereof. However, no such termination charges will be
invoiced if, within sixty (60) days of notice of termination, MATERIAL
equivalent in kind to that being terminated is ordered by Company. If
requested, Supplier shall substantiate such cost and price with proof
satisfactory to Company.
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68. TIMELY PERFORMANCE & PENALTY FOR LATE DELIVERY
If Supplier has knowledge that anything prevents or threatens
to prevent the timely performance of the Work under this Agreement,
Supplier shall immediately notify Company's Representative thereof and
include all relevant information concerning the delay or potential
delay.
In the event that shipment of any Supplier MATERIAL is delayed
after an agreed upon shipment date, after a [***] grace period, Company
shall be entitled to claim for liquidated damages of [***] ([***])
percent per week with a maximum of [***] ([***]) percent of the value
of the MATERIAL. In the event that shipment of any Supplier MATERIAL is
delayed by more than [***] ([***]) weeks, then Company shall have the
right to cancel such order without any obligation to pay any damages or
compensation of whatever nature relating to such cancellation.
69. TITLE AND RISK OF LOSS
Title (other than software) and risk of loss and damage to
MATERIAL including software purchased by Company under this Agreement
or an order issued pursuant to this Agreement shall vest in Company
when the MATERIAL has been delivered at the FOB point. If this
Agreement or an order issued pursuant to this Agreement calls for
additional services including, but not limited to, unloading,
installation, or testing to be performed after delivery, Supplier shall
retain title and risk loss and damage to the MATERIAL until the
additional services have been performed. If Supplier is authorized to
invoice Company for MATERIAL prior to shipment or prior to the
performance of additional services, title to MATERIAL (other than
software) shall vest in Company upon payment of the invoice, but risk
of loss and damage shall pass to Company when the additional services
have been performed.
70. TOXIC SUBSTANCES AND MATERIAL HAZARDS
Supplier hereby warrants to Company that, except as expressly
stated elsewhere in this Agreement, all MATERIAL furnished by Supplier
as described in this Agreement is safe for its foreseeable use, is not
defined as a hazardous or toxic substance or material under applicable
federal, state or local law, ordinance, rule, regulation or order
(hereinafter collectively referred to as "law" or "laws"), and presents
no abnormal hazards to persons or the environment. Supplier also
warrants that it has no knowledge of any federal, state or local law,
that prohibits the disposal of the MATERIAL as normal refuse without
special precautions except as expressly stated elsewhere in this
Agreement. Supplier also warrants that where required by law, all
MATERIAL furnished by Supplier is either on the EPA Chemical Inventory
compiled under Section 8 (a) of the Toxic Substance Control Act, or is
the subject of an EPA-approved pre manufacture notice under 40 CFR Part
720. Supplier further warrants that all MATERIAL furnished by Supplier
complies with all use restrictions, labeling requirements and all other
health and safety requirements imposed under federal, state, or local
laws. Supplier further warrants that, where required by law, it shall
provide to
------------
*** Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
29
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Company, prior to delivery of the MATERIAL, a Material Safety Data
Sheet which complies with the requirements of the Occupational Safety
and Health Act of 1970 and all rules and regulations promulgated
thereunder.
Supplier shall defend, indemnify and hold Company harmless for
any expenses (including, but not limited to, the cost of substitute
material, less accumulated depreciation) that Company may incur by
reason of the recall or prohibition against continued use or disposal
of MATERIAL furnished by Supplier as described in its Agreement whether
such recall or prohibition is directed by Supplier or occurs under
compulsion of law. Company shall cooperate with Supplier to facilitate
and minimize the expense of any recall or prohibition against use or
disposal of MATERIAL directed by Supplier or under compulsion of law.
Supplier further shall defend, indemnify and hold Company
harmless of and from any claims, demands, suits, judgments,
liabilities, costs and expenses (including reasonable attorney's fees)
which Company may incur under any applicable federal, state or local
laws, and any and all amendments thereto, including but not limited to
the Comprehensive Environmental Response, Compensation and Liability
Act of 1980; the Consumer MATERIAL Safety Act of 1972; the Toxic
Substance Control Act; Fungicide, Rodenticide Act; the Occupational
Safety and Health Act; and the Atomic Energy Act; and any and all
amendments to all applicable federal, state, or local laws, by reason
of Company's acquisition, use, distribution or disposal of MATERIAL
furnished by Supplier under this Agreement.
71. TRAINING
Supplier will provide instructional Source Material, at no
charge, that can be used by Company to generate Customer Training
materials. Supplier will provide two (2) train-the-trainer courses, at
no charge, for Company's personnel at a level mutually agreed upon so
that Company will be able to effectively market and support Supplier's
MATERIAL. Additional courses will be made available to Company at
Supplier's rates as listed in Appendix A. The training will include,
but not be limited to the MATERIAL's features, competitive information,
target markets and selling strategies, tendering and pre-sales training
, TAC Support as well as technical aspects of the MATERIAL to enable
Company to properly configure Supplier's MATERIAL to operate with
Company's MATERIALs and provide technical support.
72. PRODUCT MANAGEMENT MEETINGS
Supplier and Company shall have biannual product management
meetings to discuss (not limited to):
- Product changes
- Roadmaps
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- Technology changes
- R&D co-operation initiatives
- Action plans and partnership agreement implementation issues
- Supplier and Company shall do best efforts to make sure that the
Crossworks Software is interoperable with Alcatel Test Access.
- Cost improvements whereby the price of Supplier MATERIAL may
decrease.
73. ROADMAPS
Supplier shall keep Company informed of ongoing development work
(i.e. Product roadmaps) planned for the Materials covered in this
Agreement. Company in turn, will keep Supplier appraised of ongoing
development work on Company's broadband access products relevant to the
copper loop management solution and that might affect the Supplier
solution.
Supplier undertakes to provide additional information to give Company
the opportunity to comment on and possibility to influence the
roadmaps, future plans and possible "Manufacturer Discontinue"
decisions concerning the Products. Company undertakes to provide
additional information to give Supplier the opportunity to comment on
and possibility to influence the roadmaps, future plans and possible
decisions concerning Company's products. Discussion pertaining to
product development work shall take place on a quarterly basis
74. SALES AND MARKETING MEETINGS
Company and Supplier shall have quarterly sales and marketing
meetings in mutually agreed time and locations. Every other meeting
should be arranged jointly with product management meetings. The
meetings shall include, but are not limited to discussions on the
following issues:
- Commercial roadmaps
- Customer case review
- Review of reference list
- Action plans to tackle major customer cases
- Pricing (customer specific pricing in quarterly meetings,
generic pricing semi-annually)
- Forecast of Company purchases and future opportunities
Parties agree that the initial primary focus of the joint
marketing and OEM activities will be on the combination of the 7300
product with the CX100 and applicable management software. Supplier's
smart splitter solutions initially will not be joint marketed by
Supplier and Company to the accounts stated in Section 4 unless
specific customer requirements dictate a demand for this type of
solution - e.g., the account is deploying or being quoted the 7300 SL
product, or shows an interest in enhancing their current A1000
deployment with
31
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metallic test access. This OEM Agreement does not preclude Supplier
from independently promoting its smart splitter solution to any
account.
75. EXCHANGE OF EQUIPMENT
Company and Supplier shall exchange four of their respective
systems free of charge for the purposes of cooperative development,
integration testing, sales and marketing demonstrations, and post sales
support. Supplier will provide initial training for Company sales,
marketing, and support personnel. Additional training or training for
mutual customers can be purchased from Supplier at standard rates. Both
parties agree to make their development and support personnel available
as reasonably required for integration, development and support
activities. The following individuals are designated as primary points
of contact to ensure orderly communications:
Turnstone: Alcatel:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Partner Marketing Strategic Marketing
▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇ ▇▇▇▇▇▇.▇.▇▇▇▇▇▇@▇▇▇.▇▇▇▇▇▇▇.▇▇▇
76. OSS INTEGRATION
Supplier agrees to work with Company to integrate its loop
management tools with Company's Service and Network Management
Platforms. Both parties agree to create a prototype or demo for the
purposes of proving interoperability and demonstrating software
integration. Additional integration work will be performed in
conjunction with specific customer requirements.
Both Supplier and Company commit to providing the appropriate
technical resources required for any joint development work. Both
Supplier and Company commit to providing the appropriate resources for
ongoing support and maintenance of materials that are jointly developed
by parties, and commit to performing future development work as
required by customers and mutually agreed upon by both parties.
77. USE OF INFORMATION
Supplier shall view as Company's property any idea, data,
program, technical, business or other intangible information, however
conveyed, and any document, print, tape, disc, tool, or other tangible
information-conveying or performance-aiding article owned or controlled
by Company, and provided to, or acquired by, Supplier under or in
contemplation of this Agreement (Information). Supplier shall, at no
charge to Company, and as Company directs, destroy or surrender to
Company promptly at its request any such article or any copy of such
Information. Supplier shall keep Information confidential and use it
only in performing under this Agreement and obligate its employees,
subcontractors and others
32
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working for it to do so, provided that the foregoing shall not apply to
information previously known to Supplier free of obligation, or made
public through no fault imputable to Supplier. The use of information
will further be governed by the Non Disclosure Agreement in Appendix D.
78. VARIATION IN QUANTITY
Company assumes no liability for MATERIAL produced, processed
or shipped in excess of the amount specified in this Agreement or in an
order issued pursuant to this Agreement.
79. WARRANTY
Supplier warrants to Company that MATERIAL furnished will be
new, free from defects in design, material and workmanship and will
conform to and perform in accordance with the Specifications. These
warranties shall continue for a period of twelve (12) months from the
date of acceptance by Company, but in no event more than 13 months from
the date of shipment, with respect to hardware products and three (3)
months from the date of acceptance by Company with respect to software
products.
Supplier also warrants to Company that services will be
performed in a first class, workmanlike manner. In addition, if
MATERIAL furnished contains one or more manufacturer's warranties,
Supplier hereby assigns such warranties to Company. Supplier warrants
that at the time of delivery to Company such MATERIAL shall be free of
any security interest or any other lien or any other encumbrance
whatsoever. All warranties shall survive inspection, acceptance and
payment.
Defective or non-conforming MATERIAL will be returned to
Supplier for repair or replacement, at no cost to Company, with risk of
in-transit loss and damage borne by Supplier and freight paid by
Supplier. Unless otherwise agreed upon by Supplier and Company,
Supplier shall complete repairs and ship the repaired MATERIAL within
ten (10) business days of receipt of defective or non- conforming
MATERIAL, or at Company's option, ship replacement MATERIAL within ten
(10) business days after verbal notification is given Supplier by
Company. Supplier shall bear the risk of in-transit loss and damage and
shall prepay and bear that cost of freight for shipments to Company of
repaired or replaced MATERIAL.
If MATERIAL returned to Supplier for repair as provided for in
this section is determined to be beyond repair, Supplier shall promptly
so notify Company and, unless otherwise agreed to in writing by
Supplier and Company, Supplier shall ship replacement MATERIAL without
charge within ten (10) business days of such notification.
Replacement MATERIAL shall be warranted as set forth above in
this "WARRANTY" section. Any MATERIAL which is repaired, modified, or
otherwise
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serviced by Supplier shall be warranted as provided in this "WARRANTY"
section for the remainder of the warranty period (based upon the date
repair, modification or other service is completed and accepted by
Company) or ninety (90) business days after the MATERIAL is returned to
a Customer, whichever is later.
If Supplier is unable to find any defect or nonconformity, the
material will be returned to Company at Company's expense.
EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH IN THIS
AGREEMENT, SUPPLIER MAKES NO OTHER WARRANTIES REGARDING THE MATERIAL,
ANY SOFTWARE INCORPORATED THEREIN OR ANY SERVICES PROVIDED THEREWITH
AND HEREBY DISCLAIMS ANY AND ALL SUCH OTHER WARRANTIES, EXPRESS, OR
IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE, WHICH ARE HEREBY
EXCLUDED. SUPPLIER'S LIABILITY UNDER THE WARRANTY SHALL BE LIMITED TO A
REFUND OF THE COMPANY'S PURCHASE PRICE OR REPAIR OF THE MATERIAL. IN NO
EVENT SHALL SUPPLIER BE LIABLE FOR THE COST OF PROCUREMENT OF
SUBSTITUTE GOODS BY THE COMPANY OR FOR ANY SPECIAL, CONSEQUENTIAL OR
INCIDENTAL DAMAGES FOR BREACH OF WARRANTY.
80. ENTIRE AGREEMENT
This Agreement shall incorporate the typed or written
provisions on Company's orders issued pursuant to this Agreement and
shall constitute the entire agreement between the parties with respect
to the subject matter of this Agreement and the order(s) and shall not
be modified or rescinded, except by a writing signed by Supplier and
Company. Printed provisions on the reverse side of Company's orders
(except as specified otherwise in this Agreement) and all provisions on
Supplier's forms shall be deemed deleted. Estimates or forecasts
furnished by Company shall not constitute commitments. The provisions
of this Agreement supersede all contemporaneous oral agreements and all
prior oral and written communications, and understandings of the
parties with respect to the subject matter of this Agreement.
34
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ATTACHMENTS - The following Attachments are hereby made part of the Agreement:
Appendix A Turnstone Price Guide
Appendix B Copper CrossConnect CX100 and Smart Splitter SX500 User's Guide (w/
specifications)
Appendix C Monthly Order and Shipment Reports
Appendix D Non-Disclosure Agreement
Appendix E Comprehensive Product Maintenance
Appendix F Training
Appendix G Alcatel UNITS
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IN WITNESS WHEREOF the Parties hereto have executed this Agreement in
two (2) original copies by their duly authorised representatives on the earliest
date written below,
ALCATEL S.A. TURNSTONE SYSTEMS INC.
Name : ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name : ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title : Purchasing Officer Title : President and CEO
Signature: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Signature: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Date : June 1, 2001 Date : June 1, 2001
Name :▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title :Corporate Purchasing Manager "OEM/Resale" HW&SW
Signature :/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Date : June 1, 2001
Name :Alain Page-▇▇▇▇▇▇▇
Title :Director Corporate HW/SW & Services
Signature : /s/ Alain Page-▇▇▇▇▇▇▇
Date : June 1, 2001
Name :▇▇▇▇▇▇▇ ▇▇▇▇▇
Title :Vice President Corporate Procurement & Sourcing
Signature : /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Date : June 1, 2001
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APPENDIX A - TURNSTONE PRICE GUIDE
QUOTATION REF: ALCATEL_PRICING
[TURNSTONE LOGO] [ALCATEL LOGO]
▇▇▇▇ GEYS
Alcatel
Product Manager - DSL Access Carrier Internetworking Division
De ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
B-2550 - Kontich
UNIT VOLUME PRICING DISCOUNTS
------------------------------
[***] UNITS
[***]%
------------------------------
PART LIST
QTY NUMBER DESCRIPTION CLEI CODE PRICE DISCOUNT NET PRICE
--------------------------------------------------------- ---------- ------------------------------
Hardware
1 600000 Copper CrossConnect 23" Base System SLMXELCCRA $6,595.00 [***]% $[***]
1 600001 Copper CrossConnect 19" Base System SLMXEKBCRA $6,295.00 [***]% $[***]
0 TBD CX40 Tbd $3,995.00 [***]% $[***]
1 600003 L140 Line Card - 25 subscribers/25 xconnects SLL2DD0CAA $3,395.00 [***]% $[***]
1 600048 L150 Line Card - 25 subscribers SLL4MN0DAA $3,995.00 [***]% $[***]
1 600056 L155 Line Card - 25 subscribers/BILS SLL4MP0DAA $4,995.00 [***]% $[***]
1 600046 P150 Processor Card SLPQ0G9DAB $8,795.00 [***]% $[***]
1 600026 ▇▇▇▇ ▇▇▇▇ - ▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ hub SLL28D0CAA $2,495.00 [***]% $[***]
1 600032 M120 - 8 port Terminal Server SLL3D80CAA $3,495.00 [***]% $[***]
1 600070 M120 Octopus Cable TBD $295.00 [***]% $[***]
1 600054 M121 - 8 port (RJ45) Terminal Server SLL4EF0DAA $3,495.00 [***]% $[***]
▇ ▇▇▇▇▇▇ ▇▇▇▇ CrossConnect Linecard SLL3CC0CAA $3,195.00 [***]% $[***]
1 600076 D230 - ADSL Service Verification Card SLTSKM0HAA $6,995.00 [***]% $[***]
1 600038 S108 POTS Splitter Line Card SLL3DD0CAA $1,400.00 [***]% $[***]
1 600069 S112-12 port POTS Splitter Card (SCX) TBD $1,795.00 [***]% $[***]
1 600061 C10-Clock Distribution Card (BRI) TBD $2,395.00 [***]% $[***]
1 600060 T100-TDR Card TBD $4,295.00 [***]% $[***]
1 600063 SX500 23" Chassis - Smart Splitter VAM3BB0BRA $6,895.00 [***]% $[***]
1 600064 SP50 Controller Card VAC2V3FJAA $1,295.00 [***]% $[***]
1 600065 SL24-24 port Splitter Line Card VAC2U4FJAA $2,295.00 [***]% $[***]
1 ▇▇▇ ▇▇▇▇ - ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ Access Card TBD $1,395.00 [***]% $[***]
1 600068 SX500-19" Chassis - Smart Splitter TBD $5,895.00 [***]% $[***]
1 600074 SX500-19" Front-Cabling Panel TBD $3,695.00 [***]% $[***]
1 600075 SX500-23" Front-Cabling Panel TBD $4,595.00 [***]% $[***]
1 TBD SCX200-23" Chassis TBD $4,995.00 [***]% $[***]
1 TBD SCX200-19" Chassis TBD $4,295.00 [***]% $[***]
1 TBD SCL12-12-port Smart Splitter Card (SCX) TBD $1,795.00 [***]% $[***]
------------------------------
------------------------------ ------------------------------
[***]-[***] UNITS [***]+ UNITS
[***]% [***]%
------------------------------ ------------------------------
PART LIST LIST
QTY NUMBER DESCRIPTION PRICE DISCOUNT NET PRICE PRICE DISCOUNT NET PRICE
--------------------------------------------------------- ------------------------------ ------------------------------
Hardware
1 600000 Copper CrossConnect 23" Base System $6,595.00 [***]% $[***] $6,595.00 [***]% $[***]
1 600001 Copper CrossConnect 19" Base System $6,295.00 [***]% $[***] $6,295.00 [***]% $[***]
0 TBD CX40 $3,995.00 [***]% $[***] $3,995.00 [***]% $[***]
1 600003 L140 Line Card - 25 subscribers/25 xconnects $3,395.00 [***]% $[***] $3,395.00 [***]% $[***]
1 600048 L150 Line Card - 25 subscribers $3,995.00 [***]% $[***] $3,995.00 [***]% $[***]
1 600056 L155 Line Card - 25 subscribers/BILS $4,995.00 [***]% $[***] $4,995.00 [***]% $[***]
1 600046 P150 Processor Card $8,795.00 [***]% $[***] $8,795.00 [***]% $[***]
1 600026 M101 Card - 6 Port Ethernet hub $2,495.00 [***]% $[***] $2,495.00 [***]% $[***]
1 600032 M120 - 8 port Terminal Server $3,495.00 [***]% $[***] $3,495.00 [***]% $[***]
1 600070 M120 Octopus Cable $295.00 [***]% $[***] $295.00 [***]% $[***]
1 600054 M121 - 8 port (RJ45) Terminal Server $3,495.00 [***]% $[***] $3,495.00 [***]% $[***]
▇ ▇▇▇▇▇▇ ▇▇▇▇ CrossConnect Linecard $3,195.00 [***]% $[***] $3,195.00 [***]% $[***]
1 600076 D230 - ADSL Service Verification Card $6,995.00 [***]% $[***] $6,995.00 [***]% $[***]
1 600038 S108 POTS Splitter Line Card $1,400.00 [***]% $[***] $1,400.00 [***]% $[***]
1 600069 S112-12 port POTS Splitter Card (SCX) $1,795.00 [***]% $[***] $1,795.00 [***]% $[***]
1 600061 C10-Clock Distribution Card (BRI) $2,395.00 [***]% $[***] $2,395.00 [***]% $[***]
1 600060 T100-TDR Card $4,295.00 [***]% $[***] $4,295.00 [***]% $[***]
1 600063 SX500 23" Chassis - Smart Splitter $6,895.00 [***]% $[***] $6,895.00 [***]% $[***]
1 600064 SP50 Controller Card $1,295.00 [***]% $[***] $1,295.00 [***]% $[***]
1 600065 SL24-24 port Splitter Line Card $2,295.00 [***]% $[***] $2,295.00 [***]% $[***]
1 ▇▇▇ ▇▇▇▇ - ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ Access Card $1,395.00 [***]% $[***] $1,395.00 [***]% $[***]
1 600068 SX500-19" Chassis - Smart Splitter $5,895.00 [***]% $[***] $5,895.00 [***]% $[***]
1 600074 SX500-19" Front-Cabling Panel $3,695.00 [***]% $[***] $3,695.00 [***]% $[***]
1 600075 SX500-23" Front-Cabling Panel $4,595.00 [***]% $[***] $4,595.00 [***]% $[***]
1 TBD SCX200-23" Chassis $4,995.00 [***]% $[***] $4,995.00 [***]% $[***]
1 TBD SCX200-19" Chassis $4,295.00 [***]% $[***] $4,295.00 [***]% $[***]
1 TBD SCL12-12-port Smart Splitter Card (SCX) $1,795.00 [***]% $[***] $1,795.00 [***]% $[***]
------------------------------ ------------------------------
PLEASE NOTE THAT 1 UNIT IS ANY OF THE FOLLOWING: 1 X CX100 CHASSIS
1 X CX40 CHASSIS
1 X SX500 CHASSIS
1 X SCX200 CHASSIS
BOTH PARTIES AGREE TO DISCUSS PRICING AS REQUIRED ON A CASE BY CASE BASIS.
PART LIST EXTENDED
QTY NUMBER DESCRIPTION PRICE LIST PRICE DISCOUNT NET PRICE
------------------------------------------------------------------------------------------------------------------------------------
SOFTWARE AND DOCUMENTATION
1 600030 CrossWorks LMS Software $50,000.00 $50,000.00 [***]% $[***]
1 600049 CrossWorks API Server Software $50,000.00 $50,000.00 [***]% $[***]
1 600043 CrossWorks Interactive Voice Response (IVR) Platform $30,000.00 $30,000.00 [***]% $[***]
1 600031 CrossWorks LMS - User's Guide $100.00 $100.00 [***]% $[***]
1 600041 CrossWorks LMS - Installation and Administration Guide $100 $100.00 [***]% $[***]
1 600050 CrossWorks API Server - User's Guide $100 $100.00 [***]% $[***]
1 TBD Additional Dialogic Cards for CrossWorks IVR Platform $0.00 $0.00 [***]% $[***]
1 600044 CrossWorks IVR - User's Guide $100.00 $100.00 [***]% $[***]
1 600066 SX500 - User Guide $100.00 $100.00 [***]% $[***]
****TURNSTONE CONFIDENTIAL****
---------------
*** Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
37
37
APPENDIX B - COPPER CROSSCONNECT CX100 AND SMART SPLITTER SX500 USER'S GUIDE
(W/SPECIFICATIONS)
An electronic copy of the Copper CrossConnect CX100 and Smart Splitter SX500
User's Guide will be accessible by Alcatel through Turnstone's customer service
Internet Web site.
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APPENDIX C - MONTHLY ORDER SHIPMENT REPORTS
Turnstone is currently in process of obtaining a template to for purposes of
Alcatel submitting Customer Shipment information for purposes of appropriate
compensation for Turnstone personnel.
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APPENDIX D - NON DISCLOSURE AGREEMENT
Copies of the NDA in place between Turnstone and Alcatel are available upon
request.
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APPENDIX E - COMPREHENSIVE PRODUCT MAINTENANCE TERMS
Company and Supplier agree that the following terms and conditions
shall govern the provisioning of maintenance and support services by Company to
Supplier with respect to Supplier's Products.
SECTION 1. DEFINITIONS
"Hardware" means all Supplier-produced hardware, including, but not
exclusive to, chassis-based systems and slot cards, purchased by
Company from Supplier or one of its authorized agents and for which
Company is current on its purchase price payment obligations.
"Application Software" means all Supplier-produced software that is
provided by Supplier to be used with Hardware.
"Embedded Software" means all Supplier-produced software that is
embedded in the Hardware.
"Software" means all Supplier-produced software, including, but not
limited to, Embedded Software and Application Software, purchased by
Company from Supplier or one of its authorized agents and for which
Company is current on its purchase price payment obligations.
"Product(s)" means all Hardware and Software.
"Update" means a Software release containing error corrections and
enhancements that is made commercially available by Supplier and
generally indicated by a change in the release number and any
corrections and updates to the associated documentation.
SECTION 2. SOFTWARE MAINTENANCE
2.1 Software Updates. Supplier shall provide Company e-mail
notification of Updates to Software as they become available. The
contents of all Updates shall be decided upon by Supplier in its sole
discretion. Company may obtain Updates either through delivery of a
machine-readable copy pursuant to instructions contained in the release
notification or by downloading the Updates from Supplier's customer
care web site. Supplier will provide Updates for Products that are
covered under maintenance. Company shall have the right to reasonably
request maintenance releases.
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2.2 Supported Software. Supplier's Software support obligations
hereunder shall extend to the current production release and the prior
production release only.
2.3 Error Corrections. For Software that is covered under maintenance,
Supplier shall use its reasonable efforts to correct any reproducible
programming error in the Software attributable to Supplier with a level
of effort commensurate with the severity of the error, provided that
Supplier shall have no obligation to correct all errors in the
Software. Upon identification of any programming error, Company shall
notify Supplier of such error and shall provide Supplier with enough
information to reproduce the error. Supplier shall not be responsible
for correcting any errors not attributable to Supplier. Supplier shall
only be responsible for errors that are reproducible by Supplier on
unmodified Software as delivered to Company.
SECTION 3. EXTENDED WARRANTY FOR HARDWARE AND SOFTWARE
3.1 Limited Warranty. The terms of Supplier's Hardware and Embedded
Software warranty is attached as Attachment B hereto. The terms of the
Application Software warranty is attached as Attachment C hereto. By
purchasing maintenance and support hereunder, Company verifies that
Company has read and understands such warranties.
3.2 Extended Warranty. All Products covered under maintenance shall be
considered under warranty, which will effectively extend Product
warranty coverage past Supplier's standard 1-year limited Hardware
warranty period and 90-day limited Software warranty period as outlined
in Attachments B and C.
SECTION 4. RETURN MATERIAL AUTHORIZATION
4.1 Return Material Authorization. Before returning any Product,
Company must contact Supplier customer support and obtain an RMA number
by calling the designated support telephone number or logging a request
via Supplier's customer care web site. If Supplier's customer support
verifies that the Product is likely to be defective, Supplier will
issue Company a Return Material Authorization (RMA) number, which
allows Company to return the defective unit to Supplier for repair or
replacement.
4.2 Shipping. Supplier cannot accept any Product without an RMA number
on the package. Company must deliver the defective Product along with
the RMA number to Supplier. If Company ships the Product, Company
assumes the risk of damage or loss in transit. Company must use the
original container (or the equivalent) and pay the shipping charge.
Supplier will provide Company with the shipping address at the time of
RMA issuance.
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4.3 Repair or Replace. Supplier may replace or repair the Product with
either a new or reconditioned Product. Supplier warrants the repaired
or replaced Product to be free from material defects in accordance with
the original warranty for a period of the greater of (i) ninety (90)
days from the return shipping date; or (ii) the period of time
remaining on the maintenance coverage term, whichever is applicable.
4.4 Advance Replacement. Supplier will ship an advance replacement unit
via next-business-day delivery in the continental United States.
Company has 30 days to return the defective unit after the replacement
has been shipped. If the defective unit is not returned within this
time, Supplier will invoice Company for the full list price of the
replacement unit.
4.5 Company Breach. Notwithstanding anything to the contrary herein, if
Supplier properly invoices Company for replacement unit(s) and Company
breaches its payment obligations for such replacement units, Supplier
may stop providing RMA and advance replacement units hereunder without
any penalty until such breach is cured.
SECTION 5. COMPANY SUPPORT
5.1 Support. Supplier will provide Company with technical support by
both World Wide Web and telephone. Such support will include:
a. Assistance related to questions on the installation and
operational use of the Product(s);
b. Assistance in identifying and verifying the causes of
suspected errors in the Product(s); and
c. Providing workarounds for identified Product errors or
malfunctions, where reasonably available to Supplier.
5.2 Company Care Web Site. Supplier will provide Company with an
authorized account to access Supplier's customer care web site.
Supplier will make available the following services through its
customer care web site:
a. Software Updates that can be downloaded by Company;
b. Documentation for Products;
c. Issuing trouble reports identified by Company through
Supplier's customer care web site;
d. Issuing suggestions for enhancements through Supplier's
customer care web site.
Supplier shall provide Company with online accounts to Supplier's WWW
online service. These accounts shall allow Company to access the WWW
and ftp servers with access to bug
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lists, trouble ticket system, call tracking system, technical tips and
other product related information and documentation.
5.3 Telephone Support. Telephone support shall include:
(a) Direct Hotline Support. During regular business hours
Monday through Friday, Company may contact Supplier
customer support directly through either local regional
contact numbers to be supplied by Supplier or by calling
1-877-8COPPER, extension 1599 or ▇-▇▇▇-▇▇▇-▇▇▇▇.
(b) 24/7 Dispatch Service. On a 24/7, 365-day basis, a live
operator will be available at the above contact numbers,
and Company may request that the operator immediately
alert a Supplier customer support person via pager. Pages
will generally be returned by Supplier customer support
within 30 minuets.
5.4 Recertification Services. The obligations of Supplier hereunder
only extend to Products purchased by Company directly from Supplier or
one of its authorized agents. If Company acquires Supplier products
other than from Supplier or one of its authorized agents and wish such
products to be covered, Company must notify Supplier and provide to
Supplier a list of such products together with their unique Supplier
serial identification numbers. Supplier in its sole discretion may
elect to recertify such products and charge Company a recertification
fee, in which case such products shall then be deemed to have been
purchased from Supplier and covered under maintenance.
5.5 Escalation Process. Company and its end customer shall jointly
assess the impact of Product issues and assign priorities according to
the issue priority definitions below. Supplier shall escalate issues
according to the following Supplier problem prioritization guidelines:
CRITICAL System is unusable or inoperative, causing critical
impact to network operation
MAJOR System is operating but at a significantly reduced
level of performance.
MINOR System is operating but at slightly reduced level of
performance.
COSMETIC/
FEATURE
REQUESTS System operates normally
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ESCALATION
SEVERITY TIME FRAME TECH LEVEL MANAGEMENT LEVEL
------------------- ---------- ----------------
CRITICAL Immediate Level 2 TAC Director of Technical Services
Level 3 TAC
4 hours VP Customer Support
VP Engineering
MAJOR Immediate Level 2 TAC
1 hour Level 3 TAC
2 hours Director of Technical Services
3 hours VP Customer Support
4 hours VP Engineering
MINOR 24 hours ▇▇▇▇▇ ▇ ▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇ ▇▇▇
5.6 Service Levels. Provided that Company has met its obligations
hereunder, Supplier shall use its best efforts to provide issue
resolution services according to the following service level
requirements. The requirement is to provide as a minimum a workaround
solution within the time frame identified to manage the failure
situation until the permanent solution is implemented. Elapsed time
shall be measured from the time Supplier acknowledges the issue, or
thirty (30) minutes following notification by Company, whichever is
shorter.
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-----------------------------------------------------------------
IMPACT OF ISSUE TO COMPANY SERVICE LEVEL REQUIREMENT
-------------------------- -------------------------
CRITICAL Within 4 hours
95% of cases
-----------------------------------------------------------------
MAJOR Within 24 hours
95 % of cases
-----------------------------------------------------------------
MINOR Within 48 hours
95 % of cases
-----------------------------------------------------------------
All calls to Supplier TAC
must be acknowledged by Supplier Within 30 minutes
and assigned a trouble ticket 95 % of cases
-----------------------------------------------------------------
5.7 Emergency Call-Out Services. Supplier agrees to use commercially
reasonable efforts to provide Company with emergency call-out services.
Emergency call-out service provides recovery assistance for emergencies
24 hours a day, 7 days a week. Typically, the emergency service is
needed when there is a serious system malfunction that Company is
unable to manage and which requires on-site service support. In these
instances, a Supplier systems engineer may be required to physically
visit the Company customer site.
Emergency call-out service shall only be requested by Company in the
event that Company is unable to resolve the issue after assistance from
Supplier TAC and after Company support personnel has first attempted to
troubleshoot the issue at the customer site. Before requesting such
service, Company shall first obtain a written call-out request from its
customer and provide a copy of such request to Supplier. After
receiving the request, Supplier, Company and the Company customer shall
mutually agree upon a schedule for the Supplier systems engineer to
visit the customer site.
Company agrees to pay Supplier a rate of $[***] per day plus reasonable
travel, hotel and per diem expenses associated with the provisioning of
any emergency call out services. Payment terms shall be as provided in
the main Agreement. If the Emergency Call-Out Service is required
because of a shown HW/SW failure in Supplier MATERIAL, Company shall
not pay the fee mentioned here above.
SECTION 6. TRAINING
6.1. Training. The obligations of Company and Supplier with respect to
training are set forth in Appendix F.
SECTION 7. COMPANY RESPONSIBILITIES
7.1 End Customer Assistance. End customers shall initially report all
Supplier Product issues to the Company. Company shall provide certified
Supplier-trained
------------
*** Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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support engineers to assist its end customers with defining, diagnosing
and resolving reported problems with Supplier Products. Company shall
make every effort to resolve reported issues prior to escalating them
to Supplier's technical assistance center.
7.2 Supplier Assistance. Company shall promptly provide Supplier
network access to the appropriate install sites and configuration
information for the related network equipment so that Supplier has a
reasonable opportunity to diagnose and resolve Product issues within
agreed upon service levels. Upon request, Company shall also provide
reasonable access to all necessary personnel to answer questions about
any problems reported by Company regarding the Products. Company shall
promptly implement all Updates and error corrections provided by
Supplier hereunder.
7.3 Company Training. Company and Supplier shall mutually agree upon
appropriate numbers of certified Supplier-trained engineers to support
each geographical region where the Products may be deployed.
7.4 Contact People. Company shall appoint a number of individuals
within Company's organization, as mutually agreed upon between Company
and Supplier, to serve as primary contacts between Company and Supplier
and to receive support through Supplier's customer care organization.
Company shall ensure that its contact persons are properly trained in
the operation and usage of the Products.
SECTION 8. MAINTENANCE TERM AND FEES
8.1 Comprehensive Product Maintenance Term and Fees. The maintenance
coverage term and the maintenance fees which Company agrees to pay
Supplier are set forth in Attachment A.
SECTION 9. MISCELLANEOUS
9.1 Product Obsolescence.
a. Rights. Supplier shall have the right to declare any
Product(s) obsolete and no longer supported by Supplier,
subject to the terms hereunder.
b. Notice Period. Supplier shall not discontinue manufacture
of any Products supplied to the Company without giving at
least six (6) months written notice of its intention to do
so.
c. Continued Support. The responsibilities of Supplier to
provide maintenance services with respect to any of the
Products shall remain in force for a period of one (1) year
after the Product has been made obsolete; provided that (i)
the Company has paid Supplier for maintenance hereunder and
(ii) Company has continuously purchased
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maintenance from Supplier since the first commercial
shipment of Product from Supplier to Company. In case
Company has long-term support contracts with its customers,
Company shall inform Supplier of the terms of such
contracts, and Supplier and Company shall work together in
good faith and use their reasonable best efforts to ensure
that Company can successfully fulfill its obligations under
such contracts.
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ATTACHMENT A
COMPREHENSIVE PRODUCT MAINTENANCE - TERM AND FEES
Supplier shall offer and Company shall purchase comprehensive product
maintenance on a 12-month coverage term basis. The fees for each such
12-month coverage term shall equal [***]% of the aggregate purchase price
paid by Company for the Supplier Products to be covered.
The first 12-month coverage term shall begin on the date of the first
shipment of Product from Supplier to Company or Company's designee. A
coverage term may be extended prior to expiration for additional 12-month
periods upon mutual agreement of Supplier and Company.
------------
*** Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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ATTACHMENT B
LIMITED WARRANTY FOR PRODUCTS AND EMBEDDED SOFTWARE
1. Limited Warranty
Supplier warrants that under normal use and conditions the components of the
Products and Software listed below will, for the appropriate duration listed
below (each, a "Warranty Period"), be free from Material Defects. For purposes
of the hardware warranty, "Material Defect" means any defect in Supplier's
Product that is a substantial nonconformity from the published specifications
for such Product, and with respect to the Embedded Software warranty, such
defect can be reproduced by Supplier.
Hardware: The Warranty Period for any hardware delivered is one (1)
year from the date of purchase from Supplier.
Embedded Software: The Warranty Period for the Embedded Software
delivered is ninety (90) days from the date of purchase from Supplier.
Company's sole remedy and Supplier's sole responsibility under this warranty
shall be the repair or replacement of the Product, or component, or Embedded
Software as described below in "Returning a Defective Product (RMA)". This
warranty does not cover replacement of Products or Embedded Software damaged by
improper or unauthorized repair, abuse, misuse, neglect, alteration, disaster,
improper installation or improper testing. For further warranty information call
the number below.
2. Returning a Defective Product (RMA)
Before returning any Product or Embedded Software, Company must contact Supplier
customer support and obtain an RMA number by calling 1-877-8COPPER in California
USA or by email communication to the following email address:
▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇.
If Supplier customer support verifies that the Product or Embedded Software is
likely to be defective, Supplier will issue an RMA number to place on the outer
package in which the Product or Embedded Software will be shipped. Supplier
cannot accept any Product or Embedded Software without an RMA number on the
package. Company must deliver the Product or Embedded Software along with the
RMA number to Supplier. If Company ships the Product or Embedded Software,
Company assumes the risk of damage or loss in transit. Company must use the
original container (or the equivalent) and pay the shipping charge.
Supplier may replace or repair the Product or Embedded Software with either a
new or reconditioned Product or Embedded Software. Supplier warrants the
repaired or replaced Product or Embedded Software to be free from Material
Defects for a period of the greater of (i) ninety (90) days from the
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return shipping date; or (ii) the period of time remaining on the original one
(1) year or ninety (90) day warranty as applicable.
WARRANTIES EXCLUSIVE: THE ABOVE WARRANTY IS IN LIEU OF ANY OTHER WARRANTY,
WHETHER EXPRESS, IMPLIED OR STATUTORY INCLUDING, BUT NOT LIMITED TO, ANY
WARRANTY OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE
OR ANY WARRANTY ARISING OUT OF ANY COURSE OF DEALING OR INDUSTRY CUSTOM.
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ATTACHMENT C
LIMITED WARRANTY FOR APPLICATION SOFTWARE
Supplier warrants that for a period of 90 days from the date of purchase (a) the
Application Software will perform substantially in accordance with the
accompanying Documentation and (b) the media on which the Application Software
is recorded is substantially free from defects in materials and workmanship.
Supplier's sole obligation under this limited warranty shall be at Supplier's
discretion to (a) use reasonable efforts to correct reproducible errors in the
Application Software, (b) replace defective media which is returned to Supplier
or (c) refund the purchase price paid for the Application Software. Any
replacement Application Software will be warranted for the remainder of the
original warranty period or 30 days, whichever is longer.
This warranty gives Company specific legal rights and Company has other rights
which vary from jurisdiction to jurisdiction.
WARRANTIES EXCLUSIVE: EXCEPT FOR THE FOREGOING EXPRESS WARRANTY THE APPLICATION
SOFTWARE IS PROVIDED "AS IS". SUPPLIER MAKES NO WARRANTY THAT THE APPLICATION
SOFTWARE WILL WORK IN CONJUNCTION WITH ANY HARDWARE OR APPLICATION SOFTWARE
PRODUCTS PROVIDED BY THIRD PARTIES, THAT USE OF THE APPLICATION SOFTWARE WILL BE
UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS IN THE APPLICATION SOFTWARE
WILL BE CORRECTED. SUPPLIER HEREBY DISCLAIMS ANY OTHER WARRANTY, WHETHER
EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF
MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR ANY
WARRANTY ARISING OUT OF ANY PROPOSAL, SPECIFICATION, OR SAMPLE.
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APPENDIX F - TRAINING
COMPANY TRAINING
As long as Company continuously purchases maintenance and support coverage for
its Supplier products pursuant to the terms set forth in Appendix E hereto,
Supplier commits to provide the following types of training programs to Company
personnel:
- Sales Training
- Technical Training
- Periodic Technical Refreshers
- Train the Trainer (Technical)
Furthermore, Company shall have access to all courseware regarding the courses
mentioned here below both in hardcopy as in electronic version for internal use.
For all other uses Company must obtain prior written consent from Supplier.
SALES TRAINING
Supplier shall provide training to enable Company to effectively market and sell
Supplier equipment and services.
TECHNICAL TRAINING
Supplier shall provide training to enable Company technical staff to understand
the theory of operation, and to independently install, configure, test, manage
and troubleshoot Supplier equipment.
TECHNICAL REFRESHER
Supplier shall provide periodic training as necessary to inform Company
technical staff of developments in Supplier products and to enhance knowledge
acquired in initial technical courses.
TRAIN THE TRAINER (TECHNICAL)
Supplier shall provide training to enable Company trainers to deliver Supplier
technical courses to Company employees and Company customers. The Supplier
Trainer Program gives instructors the skills they need to educate Company
employees and customers as well as the technical skills to become proficient in
Supplier products. This instructor led program includes lab intensive exercises,
which gives the instructor candidates hands on time using the Copper
CrossConnect CX100, SX500 Smart Splitter and CrossWorks LMS. After reaching an
acceptable level of proficiency on the Supplier products, the attendees will be
tested on their instructor abilities in teaching Supplier's courses to the class
for evaluation and demonstration. Once students have successfully completed this
course they will be certified as Supplier Technical Trainers, which will allow
them to deliver training on Supplier products.
PRICING FOR COMPANY TRAINING
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Upon Company's request, Supplier will provide at Supplier's facilities (or at
Company's facilities if Supplier is reimbursed by Company for reasonable related
travel, hotel and per diem expenses) up to 10 training sessions of a maximum of
80 hours in the aggregate to Company sales and technical personnel free of
charge. The 80 hours of free training must be used during, and shall expire
after, the first twelve months following the execution of the main Agreement.
Any additional training will be provided to Company at the pricing set forth
below:
CERTIFICATION PRICE
NUMBER CERTIFICATION NAME (PER STUDENT) * LIST PRICE * OEM PRICE * DURATION
------------- ---------------------------------- --------------- ------------ ----------- --------
OEM-CXC01 Copper CrossConnect CX100 $1,000 $12,000 $[***] 2 days
Certification
------------- ---------------------------------- --------------- ------------ ----------- --------
OEM-CWC01 CrossWorks LMS Certification $ 750 $ 9,000 $[***] 2 days
------------- ---------------------------------- --------------- ------------ ----------- --------
OEM-SXC01 SX500 Smart Splitter Certification $ 550 $ 6,600 $[***] 2 days
------------- ---------------------------------- --------------- ------------ ----------- --------
OEM-LAC01 Loop Analysis Certification $1,500 $18,000 $[***] 1.5 days
------------- ---------------------------------- --------------- ------------ ----------- --------
OEM-IMC01 Installation and Maintenance $ 500 $ 6,000 $[***] 1 day
Certification
------------- ---------------------------------- --------------- ------------ ----------- --------
OEM-EMC01 Element Management Certification $1,200 $14,400 $[***] 2 days
------------- ---------------------------------- --------------- ------------ ----------- --------
TBD Supplier Trainer Program ** $4,300 N/A $[***] 8.5 days
------------- ---------------------------------- --------------- ------------ ----------- --------
-------------
* Price is based on 12 students per class (except for the Supplier Trainer
Program, which is based on a class of up to six students) and on training been
conducted at Supplier's facilities. For training to be conducted at Company's
facilities, Supplier shall be reimbursed by Company for reasonable related
travel, hotel and per diem expenses.
** The Supplier Trainer Program is based on a class of up to six students from
Company. In addition to providing the trainer teaching skills curriculum it will
also include the curriculum for the following certifications:
- Loop Analysis
- CX100 Copper CrossConnect
- SX500 Smart Splitter
- CrossWorks LMS
CANCELLATION
------------
*** Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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In the event Company cancels or reschedules a training course less than fourteen
(14) calendar days prior to the date of such course, Company shall compensate
Supplier with an amount equal to 50% of the fees for such training course plus
any nonrefundable travel or hotel expenses incurred by Supplier in anticipation
of such course. In the event Company cancels or reschedules a training course
less than seven (7) calendar days prior to such event, Company shall compensate
Supplier with an amount equal to 100% of the fees for such training course plus
any nonrefundable travel or hotel expenses incurred by Supplier in anticipation
of such course. Other than the above, Company shall have no further liability
for canceling or rescheduling a training course.
COURSE DESCRIPTIONS
The following course descriptions may be updated from time to time to include
additional courses that may be offered by Supplier to Company.
COPPER CROSSCONNECT CX100 CERTIFICATION
The Copper CrossConnect CX100 from Supplier is the first in a new class of
carrier equipment that facilitates management of copper infrastructure for
digital services. The CX100 is deployed in central offices, between the outside
plant pairs connecting through the Main Distribution Frame (MDF) and the loop
terminating access equipment, such as DSLAMs. Sitting in line with up to 550
copper loops, the CX100 transparently connects loop-side pairs to corresponding
equipment-side pairs at the metallic layer. Through software control, the CX100
can remotely perform comprehensive loop testing and qualification on any of
these copper pairs, testing either towards the subscriber or back towards the
access equipment. The Copper CrossConnect CX100 also enables service providers
to remotely change copper connectivity as needed, such as moving a subscriber's
loop to an alternative equipment port. This provides a cost-effective solution
for automated protection switching of DSLAM line cards and service changes,
without requiring a visit to the central office.
The CX100 Copper CrossConnect Certification was designed for students that would
like to become technically proficient in this product. This specially designed
curriculum is ideal for companies developing their own training program on
Supplier products for internal use and for partners (resellers) of Supplier
products. Students that successfully complete the courses listed below will
obtain the Copper CrossConnect CX100 Certification.
Target Audience: Reselling Partners of Supplier Products & Supplier Customers
Duration: 2 Days Prerequisites: None
INSTALLATION AND MAINTENANCE OF THE COPPER CROSSCONNECT CX100
The Installation and Maintenance of the Copper CrossConnect CX100 module
provides an introduction to the design and technical specification of the Copper
CrossConnect CX100 and a
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comprehensive period of instruction for the installation and maintenance of the
Copper CrossConnect CX100.
ADMINISTERING THE COPPER CROSSCONNECT CX100
Administration of the Copper CrossConnect CX100 Course will focus on the
administration of the CX100 as a local machine. Topics covered will be initial
configuration, software transfer, SNMP management, security, and equipment
inventory as well as other administrative functions.
PROVISIONING THE COPPER CROSSCONNECT CX100
This period of instruction will teach students how to specify system parameters
for various flavors of xDSL technology. These parameters will allow engineers to
specify the conditions of the local loop for which xDSL will be provisioned on.
Topics covered will be setting system parameters, the CX100 Command Line
Interface, and xDSL operational guidelines.
MANAGING COPPER CONNECTIONS IN THE COPPER CROSSCONNECT CX100
The Managing Copper Connections will teach students how to manage
strait-through, cross-connections, and loop-back connections in the CX100.
Topics covered are the types of connections, viewing connections, and the CX100
Command Line Interface.
CROSSWORKS LMS CERTIFICATION
CrossWorks Back Office Automation Software is a software suite that works in
conjunction with the Copper CrossConnect CX100 and the Smart Splitter SX500 to
allow service providers to readily automate physical layer management of the
copper loop. CrossWorks provides key capabilities, such as loop qualification
and testing, spectral analysis and network management through a variety of
interfaces including a web-based GUI and standard industry APIs. This
certification course is designed to give students the knowledge and tools needed
to successfully install and configure the CrossWorks LMS Server. Students that
successfully complete the courses listed below will obtain the CrossWorks LMS
Certification.
Target Audience: Reselling Partners of Supplier Products & Supplier Customers
Duration: 1 1/2 Days Prerequisites: Windows NT/2000 & Sun Solaris
INSTALLATION & ADMINISTRATION OF CROSSWORKS LMS- WINDOWS NT/ 2000
This course covers a step-by-step procedure on the installation of Supplier's
CrossWorks LMS on Windows ▇▇/ ▇▇▇▇ operating system. Topics covered will be
installation requirements, data base set-up for CrossWorks LMS, and the
installation procedures.
INSTALLATION & ADMINISTRATION OF CROSSWORKS LMS- SUN SOLARIS
This course covers a step-by-step procedure on the installation of Supplier's
CrossWorks LMS on the Sun Solaris platform. Topics covered will be installation
requirements, data base set-up for CrossWorks LMS, and the installation
procedures.
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CROSSWORKS LMS MANAGEMENT
The CrossWorks LMS Management module focuses on using the CrossWorks Software
suite for the system administration from a network of CX100s to the individual
CX100. Topics covered are the administration tasks of a CX100 network using the
CrossWorks LMS, such as software upgrades, view alarms, and system inventories.
SX500 SMART SPLITTER CERTIFICATION
The Smart Splitter SX500 from Supplier is a high-density splitter platform that
enables complete loop management for residential DSL services. With residential
services, DSL is typically deployed over existing phone lines, leveraging
splitters in the central office. Service providers have faced a number of
operational challenges in this environment, including the fact that splitter
electronics prevent many useful tests from being performed from certain points
in the network and limitations of POTS testing solutions to deal with DSL
services. The SX500 is a unique new product that solves many of the operational
challenges service providers face, increasing the speed and efficiency of
deploying DSL services. By integrating standards compliant splitters with
metallic test access, the SX500 enables full visibility to copper pairs on all
sides of the splitter in a cost effective manner. The SX500 enables service
providers to perform accurate loop qualification and testing in an automated
fashion, and easily integrate this solution into their existing OSS systems. The
SX500 provides an open TL1 interface that can be accessed by any testing
platform, including Supplier's Copper CrossConnect CX100. By providing complete
visibility on all sides of the Central Office based splitter, the SX500 reduces
unnecessary truck rolls and allows network operators to easily segment network
problems. The SX500 has a carrier-class, robust hardware architecture including
hot-swappable cards and make-before-break connectors.
The SX500 Smart Splitter Certification was designed for students that would like
to become technically proficient in this product. This specially designed
curriculum is ideal for companies developing their own training program on
Supplier products for internal use and for partners (resellers) of Supplier
products. Students that successfully complete the courses listed below will
obtain the SX500 Smart Splitter Certification.
Target Audience: Reselling Partners of Supplier Products & Supplier Customers
Duration: 1 Day Prerequisites: None
INSTALLATION AND MAINTENANCE OF THE SX500 SMART SPLITTER
The Installation and Maintenance module provides an introduction to the design
and technical specification of the SX500 Smart Splitter and comprehensive
instructions for the installation and maintenance of the SX500 Smart Splitter.
OPERATION OF THE SX500 SMART SPLITTER
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This course describes the methods for communication and interfacing with the
SX500 Smart Splitter. Topics covered in this course will be the TL1 Protocol,
configuration and operation, and Interoperability of the SX500 with the CX100
Copper CrossConnect.
LOOP ANALYSIS CERTIFICATION
One of the most fundamental features of the Copper CrossConnect is its ability
to provide loop qualification and testing. The system is filled with advanced
testing capabilities, ranging from fundamental loop characteristics to wideband
spectral waveform analysis. The Copper CrossConnect provides an ideal tool for
DSL service rollout, reducing or eliminating the need for extraneous truck
rolls. This certification will provide students with in-depth periods of
instruction and intensive lab exercises on fault isolation on the local loop.
Students that successfully complete the courses listed below will obtain the
Loop Analysis Certification.
Duration: 2 -1/2 Days Prerequisites: Basic Electronics, Understanding
of xDSL
Target Audience: Students planning to attend the Loop Testing Course and
personnel responsible for the acceptance, provisioning, and
maintenance of the local loop.
LOOP THEORY
These modules provide an overview of the outside plant (OSP) including
terminology, the outside plant structure from the central office to the customer
premise, cables and wiring. Upon completion of these modules, the participants
should be able to demonstrate knowledge of basic outside plant terms and the
outside cable plant architecture, which is important to understanding testing
procedures and the application of Supplier products.
LOOP TESTING
The Loop Testing Course focuses on the concepts of testing for circuits and the
results of those tests. The emphasis will be on the results of the tests as that
is crucial information for the participants. Upon completion of the Loop Testing
Course, the participants should be able to demonstrate a clear ability to
conduct tests, interpret the results, and in some cases, determine alternative
services.
LOOP ANALYSIS
The Loop Analysis course builds on the fundamentals taught in the Loop Theory
and Loop Testing course. Loop Analysis further explains and explores both test
results and the analysis of the local loop.
INSTALLATION AND MAINTENANCE CERTIFICATION
Supplier's Installation and Maintenance certification is developed for
technicians conducting the physical installation and maintenance of the Copper
CrossConnect CX100 and the SX500 Smart Splitter. This certification program will
walk students through a curriculum, which will result in being certified on the
installation and maintenance of Supplier hardware. This course is designed to
give students "the hands on experience" on Supplier's hardware giving them the
ability to successfully install the CX100 Copper CrossConnect and SX500 Smart
Splitter. Students that
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successfully complete these courses listed below will obtain the Installation
and Maintenance Certification.
Target Audience: Personnel Responsible for the Installation and Maintenance of
Supplier Hardware
Duration: 1 Day Prerequisites: Working Knowledge of the CO Plant
INSTALLATION AND MAINTENANCE OF THE SX500 SMART SPLITTER
The Installation and Maintenance module provides an introduction to the design
and technical specification of the SX500 Smart Splitter and comprehensive
instructions for the installation and maintenance of the SX500 Smart Splitter.
INSTALLATION AND MAINTENANCE OF THE COPPER CROSSCONNECT CX100
The Installation and Maintenance of the Copper CrossConnect CX100 module
provides an introduction to the design and technical specification of the Copper
CrossConnect CX100 and a comprehensive period of instruction for the
installation and maintenance of the Copper CrossConnect CX100.
ELEMENT MANAGEMENT CERTIFICATION
The Element Management Certification program is a customized curriculum
developed for technicians working in a network element management environment.
This program familiarizes students with the Copper CrossConnect CX100 and the
SX500 Smart Splitter. Students will learn how to manage the Supplier Network via
Command Line Interface (CLI) and by using Supplier's CrossWorks software suite.
Students that successfully complete the courses listed below will obtain the
Element Management Certification.
Target Audience: Technicians that are responsible for network element
management and configuration.
Duration: 2 Days Prerequisites: Understanding of LAN/ WAN Concepts
Optional Course: Operation of the SX500 Smart Splitter
Duration: -1/2 Day
ADMINISTERING THE COPPER CROSSCONNECT CX100
Administration of the Copper CrossConnect CX100 Course will focus on the
administration of the CX100 as a local machine. Topics covered will be initial
configuration, software transfer, SNMP management, security, and equipment
inventory as well as other administrative functions.
PROVISIONING THE COPPER CROSSCONNECT CX100
This period of instruction will teach students how to specify system parameters
for various flavors of xDSL technology. These parameters will allow engineers to
specify the conditions of the local loop for which xDSL will be provisioned on.
Topics covered will be setting system parameters, the CX100 Command Line
Interface, and xDSL operational guidelines.
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MANAGING COPPER CONNECTIONS IN THE COPPER CROSSCONNECT CX100
The Managing Copper Connections will teach students how to manage
strait-through, cross-connections, and loop-back connections in the CX100.
Topics covered are the types of connections, viewing connections, and the CX100
Command Line Interface.
OPERATION OF THE SX500 SMART SPLITTER (OPTIONAL)
This course describes the methods for communication and interfacing with the
SX500 Smart Splitter. Topics covered in this course will be the TL1 Protocol,
configuration and operation, and Interoperability of the SX500 with the CX100
Copper CrossConnect.
CROSSWORKS LMS MANAGEMENT
The CrossWorks LMS Management module focuses on using the CrossWorks Software
suite for the system administration from a network of CX100s to the individual
CX100. Topics covered are the administration tasks of a CX100 network using the
CrossWorks LMS, such as software upgrades, view alarms, and system inventories.
SUPPLIER TRAINER PROGRAM
The Supplier Trainer program gives instructors the skills they need to educate
and deliver Supplier Certifications to users of Supplier products as well as the
technical skills to become proficient in Supplier products. This instructor led
program includes lab intensive exercises, which gives the instructor candidates
hands on time using the Copper CrossConnect CX100, SX500 Smart Splitter, and
CrossWorks LMS. After reaching an acceptable level of proficiency on Supplier
products, the attendees will be tested on their instructor abilities in teaching
Supplier's courses to the class for evaluation and demonstration. Once students
have successfully completed this course they will be certified as Supplier
Technical Trainers, which will allow them to deliver training on Supplier
products to Company employees and end customers. This program includes
instructor skills training as well as the curriculum for the following
certifications:
Section Loop Analysis
Section CX100 Copper CrossConnect
Section SX500 Smart Splitter
Section CrossWorks LMS
Target Audience: Supplier's OEM Partners
Duration: 8.5 Days
Prerequisites: Windows NT/2000 & Sun
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TRAINING FACILITIES
The addresses of Supplier's training facilities are listed below:
North America: Turnstone Systems, Inc.
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Europe: Turnstone International (UK) Limited
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or such other location to be mutually agreed upon
Asia-Pacific: Location to be mutually agreed upon
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B-2018 ANWERPEN
BELGIUM
ALCATEL USA
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OTHER ALCATEL UNITS, CAN BY MUTUAL AGREEMENT BE ADDED TO THIS LIST
