1
EXHIBIT 10.13
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR CERTAIN REDACTED
PROVISIONS OF THIS AGREEMENT. THE REDACTED PROVISIONS ARE IDENTIFIED BY THREE
ASTERISKS ENCLOSED BY BRACKETS AND UNDERLINED. THE CONFIDENTIAL PORTION HAS BEEN
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
--------------------------------------------------------------------------------
PRODUCT PURCHASE AND SALE AGREEMENT
BY AND BETWEEN
FIRSTWORLD COMMUNICATIONS, INC.
AND
ACCELERATED NETWORKS, INC.
DATED
AUGUST 1, 1999
--------------------------------------------------------------------------------
2
[ACCELERATED NETWORKS LOGO]
PRODUCT PURCHASE AND SALE AGREEMENT
This Product Purchase and Sale Agreement ("Agreement"), effective as of
August 1, 1999 (the "Effective Date'), is made by and between ACCELERATED
NETWORKS, INC., a California corporation with its principal place of business at
000 Xxxxxxx Xxxxx, Xxxxxxxx XX 00000 ("Seller") and FIRSTWORLD COMMUNICATIONS,
INC., a Delaware corporation with its principal place of business at 0000 Xxxx
Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx Xxxxxxx, Xxxxxxxx 00000 ("Customer").
Customer and Seller are also referred to collectively as the "Parties". The
Parties agree as follows:
WHEREAS, Seller desires to supply to Customer and Customer desires to
purchase from Seller the products described herein, pursuant to the terms and
conditions contained herein.
NOW, THEREFORE, in consideration of the mutual promises herein contained
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties intending to be lawfully bound agree as
follows:
1. TERM
The Agreement shall commence on the Effective Date and shall continue in
force for an initial period of eighteen (18) months unless earlier terminated as
provided for in Section 13 ("Initial Term"). Thereafter this Agreement shall
continue on a month-to-month term unless a party provides written notice to the
other party 60 days of its termination.
2. SCOPE
The terms and conditions of this Agreement shall apply to all
transactions occurring during the Term whereby products or Services are provided
by Seller to Customer. Customer as used herein shall mean FirstWorld
Communications, Inc. or any of its wholly owned subsidiaries.
Customer understands and agrees that all Products, provided by Seller to
Customer pursuant to this Agreement and to the Exhibits listed below shall be
for Customer's internal use in the United Sates only.
Exhibit A Products
Exhibit B FirstWorld Communications National Price List
Exhibit C End-User Software License
1
3
3. PURCHASE OF PRODUCTS
3.1 Annual Purchase
In consideration for Seller's discounts, allowances, credits, and
incentives as set forth in Section 3.2 of this Agreement or any Schedule or
Exhibit ("Attachments") to this Agreement; Customer intends to purchase from
Seller an aggregate of $10 Million ("Purchase Objective") for Products purchased
during the Initial Term of this Agreement.
3.2 Discounts
From the Effective Date up to and through February 1, 2001, Customer
shall receive a purchase discount of [***] from the list prices set forth in
Exhibit B of all Products purchased by Customer from Seller. In the event
Customer has not achieved an aggregate purchase of $10 Million in Products on or
before February 1, 2001, Customer shall not be eligible for any future
discounts. Forfeiture of future discounts after February 1, 2001 shall be
Seller's sole and exclusive remedy for Customer's failure to meet its Purchase
Objective. Failure to attain the Purchase Objective shall not be a default or
breach of this Agreement.
3.3 Pricing
Prices are exclusive of all taxes, customs duties or similar tariffs and
fees, shipping and insurance charges which Seller may be required to pay or
collect upon the sale or delivery of the Products or upon collection of the
sales price, all of which shall be Customer's responsibility.
4. ORDERS AND PAYMENT
4.1 Customer shall submitted purchase orders by fax to the following
address:
Accelerated Networks, Inc.
000 Xxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attn: Sales Administration
Fax: (000) 000-0000
4.2 Cancellation and Rescheduling
Customer may cancel delivery of Products pursuant to a purchase order
without charge upon written notice to Seller not less than one hundred and
eighty (180) days prior to the scheduled delivery date. Customer will be
responsible for payment of 75% (seventy-five percent) of the amount of any
portion of a purchase order that is cancelled less than one hundred and eighty
(180) days prior to the scheduled delivery date. Customer may reschedule, or
extend the date of, delivery of Products pursuant to a purchase order without
charge upon written notice
---------------------
*** Confidential Treatment has been requested for certain redacted
provisions of this agreement. The redacted provisions are identified by three
asterisks, enclosed by brackets and underlined. The confidential portion has
been filed separately with the Securities and Exchange Commission.
2
4
to Seller not less than sixty (60) days prior to the scheduled delivery date.
This reschedule of delivery of Products by Seller can only be done one (1) time
per purchase order and the revised delivery date cannot be greater than sixty
(60) days from the originally scheduled date of delivery.
4.3 Payment
Payment for Products (including transportation charges and taxes, if
applicable) will be due as follows:
To Accompany Purchase Order [***]
Upon Delivery [***]
Within thirty (30) days of Seller's invoice [***]
date after delivery
All payments shall be made in U.S. dollars in the United States.
5. DELIVERY AND ACCEPTANCE
5.1 Delivery
Products are delivered FOB Seller's plant or other place of shipment.
Shipments will be made to the delivery address specified on Customer's purchase
order. In the absence of a specified delivery address, delivery will be made to
Customer's facility in Greenwood Village, Colorado, or any other standard
location designated by Customer. Shipping arrangements will be mutually agreed
upon by the Parties prior to delivery. Seller shall use its commercially
reasonable efforts to fill (by full or partial shipment) Customer's purchase
orders for Products within sixty (60) days of receiving purchase order. If
Seller cannot fill Customer's purchase order, in which said purchase order falls
within the range of quarterly forecasts (as set forth in Section 7 herein)
within 60 days for reasons other than those as described in Section 17.5 herein,
Customer may cancel purchase order without penalty and Seller will apply
cancelled purchase order's value toward Purchase Objective.
5.2 Inspection and Acceptance of Deliveries
Customer shall have the right to visually inspect all Products ordered
pursuant to this Agreement for a period of ten (10) days following delivery. If
the delivered Product(s) fails to conform to the applicable purchase order or
release, in whole or in part, Customer may reject the delivery and Customer
shall promptly return the rejected Product(s) to Seller at Seller's risk and
expense. Upon receipt of the rejected Product(s), Seller will promptly ship
replacement Product(s) to Customer.
---------------------
*** Confidential Treatment has been requested for certain redacted
provisions of this agreement. The redacted provisions are identified by three
asterisks, enclosed by brackets and underlined. The confidential portion has
been filed separately with the Securities and Exchange Commission.
3
5
5.3 Pre-shipment Review
If reasonably requested by Customer, a representative of Customer may
participate, to the extent applicable, in Seller's preshipment configuration,
prestaging and inspection of Product at Seller's facility.
6. SOFTWARE LICENSE
6.1 License Grant
Seller grants Customer, subject to the terms and conditions set forth in
this Agreement, a non-exclusive, non-transferable, non-sublicensable license to
(i) use the software comprising any Product (including software contained in
firmware embedded in a Product) ("Software") and (ii) at Customer's option, to
distribute the Software as incorporated and/or embedded within a Product to
Customer's end-user customers in conjunction with Customer's product and service
offerings. All copies of the Software are licensed and not sold. As between the
Parties, Seller retains all title to (except as expressly licensed by Seller),
and rights (including all intellectual property and proprietary rights anywhere
in the world) and interest in the Software. Seller shall use commercially
reasonable efforts to deliver Seller's standard End User Software License
Agreement ("End User License Agreement") included in the Product package
delivered to the end user.
6.2 License Restrictions
Customer shall not, nor permit others to, (i) copy, modify or create any
derivative work of the Software or include the Software in any other software,
(ii) delete, alter. or obscure any copyright or other notice or proprietary
legend appearing in the Software or on any documentation, media, master or
package materials for the Software provided by Seller or (iii) reverse assemble,
decompile, reverse engineer or otherwise attempt to derive the source code (or
the underlying ideas, structure, sequence, organization or algorithms) from the
Software (each, a "Misuse"). Customer shall have no liability to Seller or any
other party for an end-user's Misuse of the Software, unless Customer has actual
knowledge of an end-user's Misuse and fails to promptly take corrective action.
7. MONTHLY MEETINGS AND QUARTERLY FORECASTS
Seller and Customer shall each designate at least one representative to
serve as a liaison with the other party (each, a "Representative"). The
Representatives shall meet, either in person or by telephone, to discuss in good
faith matters relating to this Agreement including Product delivery schedules,
joint marketing activities, sales training needs, price changes and new Product
features and enhancements, and Purchase Objective levels. Customer shall provide
seller with quarterly product forecasts. Such forecasts will contain, but are
not necessarily limited to, requested products and quantities, projected
shipping dates, and shipping locations. Quarterly forecasts shall commence and
be in effect beginning with Q3, 1999, and shall continue for the term of this
contract. Such meetings shall take place on a monthly basis at a mutually agreed
upon location. Each party shall bear its own costs incurred in attending or
participating in such meetings.
4
6
8. SELLER'S WARRANTY
8.1 Product Warranty
Seller warrants to Customer: (i) For a period of one (1) year from the
date of shipment that the hardware Products will be free from material defects
in materials and workmanship, (ii) for a period of ninety (90) days from the
date of shipment, the Software will perform substantially in accordance with
applicable specifications identified in the user manual of the then current
release and (iii) services performed by Seller hereunder will be performed in a
professional and workmanlike manner and in accordance with current industry
standards. Seller's warranty does not extend to any Product that (a) is modified
or altered, (b) is not maintained to Seller's maintenance recommendations, (c)
is operated in a manner other than that specified by Seller, (d) has its serial
number removed or altered or (e) is treated with abuse, negligence or other
improper treatment (including, without limitation, use outside the recommended
environment).
8.2 Remedies
Products delivered to Customer by Seller hereunder which do not comply
with the warranty in Section 8.1 above and are returned to Seller during the
applicable warranty period will be repaired or replaced at Seller's option, at
no cost to Customer. If Seller cannot, or determines that it is not practical
to, repair or replace a returned Product, the price paid by Customer for such
Product will be credited and applied to future orders.
8.3 Disclaimer
SELLER MAKES NO WARRANTIES (OTHER THAN AS EXPRESSLY PROVIDED IN SECTION
8.1 ABOVE) WITH RESPECT TO THE PRODUCTS, THE SOFTWARE OR ANY SERVICES AND
DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. FURTHER,
SELLER DOES NOT WARRANT THE USE, OR THE RESULTS OF THE USE, OF THE PRODUCTS OR
THAT ANY SOFTWARE WILL BE ERROR-FREE.
8.4 Year 2000 Compliance Warranty
Seller represents and warrants (the "Year 2000 Warranty) that (a) all
calendar date-related processing by the Products of date data or of any system
date will not cause the Products to cease to operate substantially in accordance
with their specifications, (b) all data fields for the date data contained in
the Products are four-digit fields capable of indicating century and millennium,
and (c) that Seller has verified through its testing procedures that no change
in the system date (including the change from the year 1999 to the year 2000)
will cause the Products to cease to operate substantially in accordance with
their specifications. Notwithstanding any provision to the contrary set forth in
this Agreement, Seller makes no representation or warranty with respect to the
Products operating in conjunction with any computer software, computer firmware,
computer hardware, or any combination of the foregoing supplied by third
parties.
5
7
9. CUSTOMER'S REPRESENTATIONS AND WARRANTIES
Customer represents, warrants and covenants that: (i) it shall comply
with good business practices and all laws and regulations relevant to this
Agreement or the subject matter hereof, (ii) it shall use the then current names
used by Seller for the Products, provided that all advertisements, promotional
materials, packaging and anything else bearing any trademark of Seller's shall
identify Seller as the trademark owner and shall be subject to Seller's prior
written approval and (iii) it shall comply with all export laws, restrictions,
national security controls and regulations of the United States or other
applicable foreign agency or authority, and not to export or re-export, or allow
the export or re-export of any Product or Proprietary Information of Seller or
any direct product thereof in violation of any such restrictions, laws or
regulations, or without all required licenses and proper authorizations, any
Group D:I or E:2 country (or national of such country) specified in the then
current U.S. Export Administration Regulations (or any successor supplement or
regulations).
10. LIMITATION OF LIABILITY
NEITHER PARTY WELL BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS
AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR
EQUITABLE THEORY FOR (I) ANY AMOUNTS IN EXCESS IN THE AGGREGATE OF THE AMOUNTS
PAID TO IT (IN THE CASE OF SELLER) OR (IN THE CASE OF CUSTOMER) PAID OR OWED BY
IT HEREUNDER DURING THE TWELVE (12) MONTH PERIOD PRIOR TO DATE THE CAUSE OF
ACTION AROSE OR (II) ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS OR
LOST DATA OR (III) COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR
SERVICES. THE LIMITATIONS OF THIS SECTION 10 SHALL NOT APPLY TO ANY BREACH OF
SECTION 6.2 OR 13.
11. INDEMNIFICATION
Seller hereby agrees to defend, indemnify and hold harmless Customer
from and against any third party claims, action, demands, costs or expenses
arising from (i) infringement by the Products as and in the form delivered to
Customer of any United States patent, trademark, copyright or other intellectual
property right of any third party or (ii) the Products' failure to perform in
accordance with the Product Warranty set forth in Section 8.1, provided that
Customer (a) promptly notifies Seller in writing of any such claim, action or
demand, (b) permits Seller to have sole control and authority in the
investigation, defense and settlement of such claim, action or demand and (c)
provides Seller with reasonable assistance and cooperation in connection with
the investigation, defense and settlement thereof and Seller agrees to reimburse
Customer for out-of-pocket expenses incurred in providing such cooperation and
assistance. Seller shall have no obligation with respect to any settlement that
it does not approve in writing. Customer shall permit Seller to replace or
modify any affected Product so to avoid infringing, so long as the replacement
or modification has substantially the equivalent functionality as set forth in
the design specifications, or to procure the right for Customer to continue use
of such Products. If neither of such alternatives is reasonably practicable, the
infringing Products shall be returned to Seller and Seller's sole liability
hereunder, in addition to Seller's obligations to defend, indemnify and hold
harmless set forth in this Section 11, shall be to refund amounts paid
6
8
therefor by Customer. Seller shall have no obligation hereunder for or with
respect to claims, actions, or demands alleging infringement that arise by (i)
reason of combination of noninfringing, Product with any other product, system
or process not supplied by Seller; (ii) Products modified after delivery to
Customer without Seller's prior written consent; (iii) Products not supplied by
Seller; and (iv) Customer's continued use of infringing Products after being
notified of the alleged infringement and after being provided with modifications
that would have avoided the alleged infringement. The foregoing states Seller's
entire liability with respect to infringement of any intellectual property
rights by any Product.
12. RELATIONSHIP OF PARTIES
Customer expressly acknowledges that it is an independent contractor in
the performance of this Agreement, and is solely liable for all labor and
related expenses in connection with this Agreement. Customer will not have, and
will not represent that it has, any power, right or authority to bind Seller, or
to assume or create any obligation or responsibility, express or implied, on
behalf of Seller.
13. PROPRIETARY INFORMATION
The Parties acknowledge that in the course of performing their duties
under this Agreement, each may obtain confidential and proprietary information
of the other ("Proprietary Information"). Such Proprietary Information may
include, but is not limited to, trade secrets, know-how, inventions, techniques,
processes, programs, schematics, software source code, data, customer lists,
financial information, and sales and marketing plans. Each party shall at all
times keep in trust and confidence all Proprietary Information of the other
party and, during the term of this Agreement and for five (5) years after its
termination, shall not use such Proprietary Information other than in the course
of performing its duties under this Agreement nor shall it disclose any such
Proprietary Information to any third party without the written consent of the
other. Upon termination or expiration of this Agreement or upon the request of
the disclosing party, each party shall promptly return all manifestations of the
other's Proprietary Information in its possession.
14. TERMINATION
14.1 Termination for Cause
This Agreement may be terminated by either party for cause immediately
by written notice upon the occurrence of any of the following events: (i) if the
other ceases to do business, or otherwise terminates its business operations;
provided, however, that the acquisition of all or substantially all of a party's
stock, assets or business shall not be grounds for termination of this
Agreement; or (ii) if the other breaches any material provision of this
Agreement and fails to cure such breach within thirty (30) days of written
notice describing the breach; provided, however, that a breach of the
obligations set forth in Section 6.2 or 13 and shall be grounds for immediate
termination of this Agreement by the non-breaching party; or (iii) if the other
becomes insolvent or seeks protection under any bankruptcy, receivership, trust
deed, creditors arrangement, composition or comparable proceeding, or if any
such proceeding is instituted against the other (and not, dismissed within
ninety (90) days).
7
9
14.2 Effect of Termination
Upon any termination or expiration of this Agreement, all pending
purchase orders for release of Products shall be cancelled as of the effective
date of termination or expiration, all sums payable to Seller shall be due and
payable on the effective date of termination or expiration and all licenses
granted to Customer under this Agreement shall immediately terminate, and
Customer shall discontinue all use and distribution of the Products. Upon an
end-user acquiring a copy of the Software incorporated and/or contained in a
Product, the end-user shall be entitled to use that copy of the Software,
subject to the terms and conditions of the End-User License Agreement.
15. PUBLICITY
The Parties shall announce this Agreement and the establishment of the
relationship between Customer and Seller under this Agreement pursuant to a
joint press release to be mutually agreed upon prior to issuance. The Parties
agree to submit to each other for approval all press releases relating to this
Agreement and to not publish any press release which mentions the parties
relationship without prior approval of the other party, which approval shall not
be unreasonably withheld.
16. ASSIGNMENT
This Agreement shall be binding upon and insure to the benefit of the
parties hereto and their respective permitted successors and assigns. Neither
party may assign its rights or obligations hereunder without the prior written
consent of the other which consent shall not be unreasonably withheld,
conditioned or delayed, provided that no consent shall be required in connection
with an assignment to an entity controlling, controlled by or under common
control with such party, or to an entity that succeeds to all, or substantially
all, of the party's assets whether by merger, sale or otherwise.
17. MISCELLANEOUS
17.1 No Waiver
A waiver by either party of any provision of this Agreement or breach,
in any one instance, shall not be construed as a waiver of any other provision
or subsequent breach thereof.
17.2 Notices
Notices under this Agreement shall be in writing and delivered by
certified or registered mail, return receipt requested, or by nationally
recognized overnight courier service next day delivery, or personal deliver, to
the addresses as specified in the first paragraph of this Agreement. Such notice
shall be effective on the date of receipt or refusal thereof by the receiving
party.
8
10
17.3 Governing Law
This Agreement shall be governed and construed under California law
without regard to conflicts of law provisions.
17.4 Severability
If any provision of this Agreement is held by a court of competent
jurisdiction to be illegal, invalid or unenforceable, that provision shall be
limited or eliminated to the minimum extent necessary so that this Agreement
shall otherwise remain in full force and effect and enforceable.
17.5 Force Majeure
A party shall not be liable for non-performance or delay in performance
(other than of payment or confidentiality obligations) caused by any event
reasonably beyond the control of such party including, but not limited to wars,
hostilities, revolutions, riots, civil commotion, national emergency, strikes,
lockouts or other labor disputes or shortages or inability to obtain material or
equipment, unavailability of supplies, compliance with laws or regulation
(including, without limitation, those related to infringement), epidemics, fire,
flood, earthquake, force of nature, explosion, embargo, or any Act of God, or
any law, proclamation, regulation, ordinance or other act or order of any court,
government or governmental agency.
17.6 Entire Agreement; Amendment
This Agreement, including all Attachments to this Agreement, constitutes
the entire agreement between the parties relating to the subject matter hereof
and all prior or simultaneous proposals, negotiations, representations,
conversations, discussions and agreements, whether written or oral, among the
parties and all past dealing or industry custom. This Agreement may not be
amended except by a writing signed by the Parties.
17.7 Counterparts
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
9
11
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement
effective as of the Effective Date.
ACCELERATED NETWORKS, INC. FIRSTWORLD COMMUNICATIONS, INC.
By: /s/ Xxxxxx Xxxxxxxx By: /s/ Xxxx Xxxxxx
--------------------------- ---------------------------------
Name: Xxxxxx Xxxxxxxx Name: Xxxx Xxxxxx
--------------------------- ---------------------------------
Title: President & CEO Title: Chief Technology Officer
--------------------------- ---------------------------------
Date: 8/5/99 Date: 8/4/99
--------------------------- ---------------------------------
10
12
EXHIBIT A
Products
Brief Specifications and features of Release 2.0
MSAP
Chassis
* AN-3204 MSAP 4-slot (field/MDU)
* AN-3220 MSAP 20-slot (CO)
Modules
* System Combo Module w/dual uplink slots
* DS-3 and OC-3 ATM uplink daughtercards
* 12-port SDSL or T1 line card
* 8-port T1 Voice Server Module supports
* ESF framing, robbed bit signaling
IAD
AN-30
* Business/branch CPE
* One 10/100 Ethernet user port
* Two serial user ports (V.35/V.11)
* 12-port analog voice module (FXS)
* 1 WAN port: SDSL or T1
* T1 Digital Voice
AB-20 (Data Only)
* SOHO/Telecommuter
* One 10 Meg User Port
* 1 WAN port: SDSL or T1
SOFTWARE FEATURES
DATA
* ATM RFC 1483 Ethernet bridging
* ATM RFC 1483 IP routing
* DSS - Dynamic Service Selection
* NAT
* DHCP client and server
* Integral Web server
* Radius client
* RIP, RIP II
* ATM QoS and traffic prioritization
* ATM classes of service UBR, rtVBR, nrtVBR, CBR
* Frame Relay to ATM FRF.5 network and FRF.8 service
interworking
* Any-to-any port switching on MSAP
* ISP subscriber aggregation on IAD
VOICE
* Toll quality over ATM
* CES per ATM Forum VTOA-0078
13
* G.711 PCM voice
* AAL1 adaptation over CBR
* Dynamic support for Voice, facsimile and modem
* Multiple voice channels per PVC
* Integral G.168 echo cancellation
Network Management Software will follow Release 2.0
Above and beyond its generally available Products, and
in return for the volume purchases by Customer as stated
in Exhibit B to the Product Purchase and Sale Agreement
(the "Agreement"), Seller commits to provide the
following features in its future releases of Products to
Customer (Capitalized terms utilized and not otherwise
defined herein shall have the respective meanings given
to those terms in the Agreement):
July 30, 1999: Release 2.2, including NAT/DHCP
functionality in routed mode
September 15, 1999: Release 2.3, including:
1. Line Derivative Timing for DS-3
2. ATM Adaptation Layer 2 (AAL2)
The above mentioned releases are either included in the
current list price of Products or subsequently published
list price of Products pursuant to Exhibit B.
Customer agrees to purchase the Accelerated Networks
Access Pilot Element Management System (EMS) which
currently runs on a Windows NT platform.
Should Customer agree to convert to Seller's UNIX-based
EMS platform at a later date, Seller hereby agrees that
Customer will be billed ONLY for the difference in price
between the current NT platform and the upgrade to XXXX.
0
00
XXXXXXX X
Product Prices
Excel Quote sheet identifying complete Standard Price List are
attached. Detailed descriptions are provided for information
purposes.
Installation, Configuration, Maintenance and any other support
related prices for the deployment are to be negotiated
separately.
3
15
FirstWorld Communications National Price List
Exhibit "B"
AN-20 IAD PRODUCTS (CPE)
MODEL DESCRIPTION LIST PRICE
USS
HARDWARE OPTIONS (PLEASE SPECIFY SOFTWARE VERSION ON THE PURCHASE ORDER)
----------------------------------------------------------------------------------------------------------
AN-20S Integrated Access Device Base Unit. Includes 1-port $795
Ethernet 10BT, 1-port ATM WAN over SDSL at 1.544Mbps.
AN-20S-E2 Integrated Access Device Base Unit. Includes 2-ports $895
Ethernet 10BT. 1-port ATM WAN over SDSL at 1.544Mbps.
AN-20T Integrated Access Device Base Unit. Includes 1-port $895
Ethernet 10BT.1-port ATM WAN over unchannelized T1
(integral CSU/DSU).
AN-20T-E2 Integrated Access Device Base Unit. Includes 2-ports $995
Ethernet 10BT.1-port ATM WAN over unchannelized T1
(integral CSU/DSU).
BASE SOFTWARE (ONE BASE SOFTWARE PER IAD. MUST SPECIFY THE SOFTWARE VERSION ON
PURCHASE ORDER)
-----------------------------------------------------------------------------------------------------------
AN-20SW-B2.0 Basic System Software version 2.0 for the AN-20 IAD. No charge with IAD
AN-20-SW-B2.1 Basic System Software version 2.1 for the AN-20 IAD. No charge with IAD
OPTIONAL SOFTWARE
----------------------------------------------------------------------------------------------------------
AN-20-SW-R2.0 Routing Software version 2.0 for the AN-20 IAD. $100
AN-20-SW-R2.1 Routing Software version 2.1 for the AN-20 IAD. $100
AN-20-SW-DSSv1 Dynamic Service Selection Software for the AN-20 IAD. $200
4
16
FirstWorld Communications National Price List
Exhibit "B"
AN-30 IAD PRODUCTS (CPE)
MODEL DESCRIPTION LIST PRICE
USS
HARDWARE OPTIONS (PLEASE SPECIFY SOFTWARE VERSION ON THE PURCHASE ORDER.)
-------------------------------------------------------------------------------------------------------------------------------
AN-30S Integrated Access Device Base Unit. Includes 1-port $3,995
Ethernet 10/100TX, 2-ports Serial V.35/V.11, 1-port ATM WAN
over SDSL at 1.544Mbps. Voice expansion option. Requires
a configuration worksheet with every order.
AN-30T Integrated Access Device Base Unit. Includes 1-port $4,095
Ethernet 10/100TX, 2-ports Serial V.35/V.11, 1-port ATM WAN
over unchannelized T1 (integral CSU/DSU). Voice expansion
option. Requires a configuration worksheet with every
order.
IAD INTERFACE MODULES
-------------------------------------------------------------------------------------------------------------------------------
AN-30VM-A12S Analog Voice Module for AN-30. 12 analog voice channels $2,995
with an FXS interface. Supports G.711 PCM voice and G.168
echo cancellation.
AN-30VM-A12SC Analog Voice Module for AN-30. 12 analog voice channels $3,495
with an FXS interface. Hardware supports G.711 PCM and
G.168 echo cancellation. Hardware ready for G.726 ADPCM
requirements. Software for compression is sold separately.
AN-30VM-D24 Digital Voice Module for AN-30. 24-DS0 digital voice $2,995
module with 2-ports T1 for drop & insert functionality.
Supports G.711 PCM voice and G.168 echo cancellation.
AN-30VM-D24C Digital Voice Module for AN-30. 24-DS0 digital voice $3,695
module with 2-ports T1 for drop & insert functionality.
Hardware supports G.711 PCM and G.168 echo cancellation.
Hardware ready for G.726 ADPCM requirements. Software for
compression is sold separately.
BASE SOFTWARE (ONE BASE SOFTWARE PER IAD. MUST SPECIFY REQUIRED SOFTWARE VERSION ON PURCHASE ORDER)
-------------------------------------------------------------------------------------------------------------------------------
AN-30-SW-B2.0 Basic System Software version 2.0 for the AN-30 IAD. No charge with IAD
AN-30-SW-B2.1 Basic System Software version 2.1 for the AN-30 IAD. No charge with IAD
OPTIONAL SOFTWARE
-------------------------------------------------------------------------------------------------------------------------------
AN-30-SW-DSSv1 Dynamic Service Selection Software for the AN-30 IAD. $300
AN-30-SW-ACMP2.3 Voice compression software for 12-ports analog voice module. $495
AN-30-SW-DCMP2.3 Voice compression software for 24-ports digital voice $695
module.
5
17
FirstWorld Communications National Price List
Exhibit "B"
MSAP PRODUCTS (XXX)
MODEL DESCRIPTION LIST PRICE
USS
HARDWARE OPTIONS
-------------------------------------------------------------------------------------------------------------------------------
AN-3204 AN-3200 4-slot 19" Chassis. 90-240 VAC power. Requires a $3,995
configuration worksheet with every order.
AN-3220 AN-3200 20-slot 23" Chassis. - 48 VDC power. Requires a $7,995
configuration worksheet with every order.
SYSTEM COMBO CARD OPTIONS (REQUIRES AT LEAST ONE SYSTEM COMBO CARD PER MSAP PURCHASED.)
-------------------------------------------------------------------------------------------------------------------------------
SYSMOD1 System Combo Card includes system processor, 1-port $4,895
Ethernet 10/100TX, 1 console port, and 2-slots for uplink
daughtercards. Requires Aggregator System software or
Multi-Service Gateway System software. Specify type of
uplink card to be installed. Uplink card is sold separately.
SYSMOD1-CM System Combo Card includes system processors, 1-port $7,985
Ethernet 10/100TX, 1 console port, 1 preinstalled OC-3 MM
(155Mbps), and 1 preinstalled DS-3 (45Mbps) ATM WAN uplink
daughtercards. Requires Aggregator System software or
Multi-Service Gateway System software.
SYSMOD1-DS3 System Combo Card includes system processor, 1-port $5,990
Ethernet 10/100TX, 1 console port, 1 preinstalled DS-3
(45Mbps) ATM WAN uplink. Requires Aggregator System
software of Multi-Service Gateway System software. Uplink
daughtercards must be factory installed.
SYSMOD1-OC3MM System Combo Card includes system processor, 1-port $6,890
Ethernet 10/100TX, 1 console port, 1 preinstalled OC-3 MM
(155Mbps) ATM WAN uplink. Requires Aggregator System
software or Multi-Service Gateway System software. Uplink
daughtercards must be factory installed.
SYSMOD1-DS3-2 System Combo Card includes system processor, 1-port $7,085
Ethernet 10/100TX, 1 console port, 2 preinstalled DS-3
(45Mbps) ATM WAN uplink daughtercards. Requires Aggregator
System software or Multi-Service Gateway System software.
SYSMOD2-OC3MM-2 System Combo Card includes system processors, 1.2GB fabric, $10,885
1-port Ethernet 10/100TX, 1 console port, 2 preinstalled
OC-3 MM (155Mbps) ATM WAN uplink daughtercards. Requires
Aggregator System software or Multi-Service Gateway System
software.
DS3-D Single port DS-3 (45 Mbps) ATM WAN uplink daughtercard. $1,095
Factory installed only.
OC3-MM-D Single port OC-3 MM (155Mbps) ATM WAN uplink daughtercard. $1,995
Factory installed only.
Clock card System synchronization module for MSAP system. Requires $4,995
clock card if the purchased MSAP does not have a Voice
Server Card.
6
18
FirstWorld Communications National Price List
Exhibit "B"
AN-30 IAD PRODUCTS (CPE)
MODEL DESCRIPTION LIST PRICE
USS
INTERFACE CARD OPTIONS
-------------------------------------------------------------------------------------------------------------------------------
LC12-SDSL 12-channel line card supports ATM over SDSL. 12 integral $8,395
SDSL modems on daughtercards.
LC12-T1 12-channel line card supports ATM over unchannelized T1.12 $8,995
integral T1 modems with CSU/DSU on daughtercards.
VSIC-8TP Octal T1 and Voice Server Card, 8 DS-1 channelized T1 $13,995
digital voice interfaces for connection to PBX or Class 5
switches. Supports 192 voice channels of G.711 PCM voice
and G.158 echo cancellation. Supports structured CES
service via CBR voice over AAL1. Requires Multi-Service
Gateway System software.
VSIC-8TC Octal T1 and Voice Server Card with hardware support for $18,995
voice compression. 8 DS-1 channelized T1 digital voice
interfaces for connection to PBX or Class 5 switches.
Supports 192 channels of G.711 PCM or 96 voice channels of
G.726 ADPCM. Supports G.168 echo cancellation and
structured CES service via CBR voice over AAL1 and rtVBR
voice over AAL2. Hardware ready for G.726. Software for
compression is sold separately. Requires Multi-Service
Gateway System software.
QD-DS3-4 4-ports DS-3 (45Mbps) ATM WAN uplink daughtercard. Occupy a $8,995
single slot in the chassis and use SMA connectors.
Requires an adapter cable to connect to standard BNC
terminated cables.
MSAP SYSTEM SOFTWARE OPTIONS
-------------------------------------------------------------------------------------------------------------------------------
MSAP-SW A2.0 Aggregator System software version 2.0. $1,995
Required with any purchase of System Combo Card with MSAP
unit. May be substituted with Multi-Service Gateway System
software.
MSAP-SW-A2.1 Aggregator System software version 2.1. Call
Required with any purchase of System Combo Card with MSAP
unit. May be substituted with Multi-Service Gateway System
software.
MSAP-SW-GW2.0 Multi-Service Gateway System software version 2.0. $4,995
Required with any purchase of voice module with MSAP unit.
MSAP-SW-GW2.1 Multi-Service Gateway System software version 2.1 Call
Required with any purchase of voice module.
OPTIONAL SOFTWARE
-------------------------------------------------------------------------------------------------------------------------------
MSAP-SW-VCMP2.3 Voice compression software for 96 voice channels Voice $2,995
Server Card.
This option must be purchased for each voice server card
that needs voice compression.
GR303-SW-2.2 GR-303 System software. $3,000
Requires additional GR-303 software per voice server card.
GR303-VSC-SW-2.2 GR-303 Voice Server Card software. $1,000
Requires GR-303 System software. This option must be
purchased for each voice server card that needs support for
GR-303.
7
19
FirstWorld Communications National Price List
Exhibit "B"
CABLING (NOTE: USE ONLY SHIELDED CABLES FOR T1 AND XDSL CONNECTIONS FOR AN-3200
SERIES)
MODEL DESCRIPTION LIST PRICE
USS
CONSOLE CABLE
-------------------------------------------------------------------------------------------------------------------------------
CBL-IAD-10 Console cable, DB9 (Male) to DB9 (Female), 10ft $30
CBL-MSAP-25 Console cable, DB9 (Male) to DB9 (Female), 25ft $140
ETHERNET CABLE
-------------------------------------------------------------------------------------------------------------------------------
XXXX-XXX-00 00/000 Xxxxxxxx, UTP, CAT 5, RJ45, molded, 10ft $30
XXXX-XXX-00 00/000 Xxxxxxxx, UTP, CAT 5, RJ45, molded, 20ft $40
XXXX-XXXX-00 00/000 Xxxxxxxx, UTP, CAT 5, RJ45, molded, 25ft $50
XXXX-XXXX-00 00/000 Xxxxxxxx, UTP, CAT 5, RJ45, molded, 50ft $100
XXXX-XXXX-000 00/000 Xxxxxxxx, UTP, CAT 5, RJ45, molded, 100ft $200
COAXIAL DS-3 CABLE
-------------------------------------------------------------------------------------------------------------------------------
XXX0-XXXX-00 XX-0, dual coaxial, BNC, RG-59/4, NEC CL2, UL Style 1354, $30
25ft
XXX0-XXXX-00 XX-0, dual coaxial, BNC, RG-59/5, NEC CL2, UL Style 1354, $100
50ft
XXX0-XXXX-000 XX-0, dual coaxial, BNC, RG-59/4, NEC CL2, UL Style 1354, $150
100ft
FIBEROPTICS OC-3 CABLE
-------------------------------------------------------------------------------------------------------------------------------
COC3-MSAP-3M OC-3 duplex, SC to SC connector, MM (multimode), 3m 220
COC3-MSAP-5M OC-3 duplex, SC to SC connector, MM (multimode), 5m 250
COC3-MSAP-8M OC-3 duplex, SC to SC connector, MM (multimode), 8m 270
T1 CABLE
-------------------------------------------------------------------------------------------------------------------------------
CT1-IAD-10 T1 uplink cable, UTP, RJ48, 10ft $30
CT1-IAD-20 T1 uplink cable, UTP, RJ48, 20ft $45
SDSL CABLE
-------------------------------------------------------------------------------------------------------------------------------
CSDSL-IAD-10 SDSL uplink cable, UTP, CAT 5, RJ48, molded, 10ft $30
CSDL-IAD-20 SDSL uplink cable, UP, CAT 5, RJ48, molded, 20ft $45
CABLE FOR LINE CARD
OR VOICE SERVER CARD
-------------------------------------------------------------------------------------------------------------------------------
C1LCVSC-15 LC/VSC Metallic 50pin telco conn one end, shield w drain, $200
15ft
C1LCVSC-25 LC/VSC Metallic 50pin telco conn one end, shield w drain, $220
25ft
C1LCVSC-50 LC/VSC Metallic 50pin telco conn one end, shield w drain, $250
50ft
C2LCVSC-15 LC/VSC Metallic 50pin telco conn both ends, shield w drain, $120
15ft
C2LCVSC-25 LC/VSC Metallic 50pin telco conn both ends, shield w drain, $160
25ft
C2LCVSC-50 LC/VSC Metallic 50pin telco conn both ends, shield w drain, $220
50ft
SERIAL CABLE
-------------------------------------------------------------------------------------------------------------------------------
CDCEDTE-10 Serial Cable for connection to DCE device, 10ft $210
(Slimline 26 male to V.35 female)
CDCEDCE-10 Serial cable for connection to DCE device, 10ft $250
(Slimline 26 male to V.35 male)
CDCEDTE-20 Serial cable for connection to DCE device, 20ft $250
(Slimline 26 male to V.35 female)
CDCEDCE-20 Serial cable for connection to DCE device, 20ft $300
(Slimline 26 male to V.35 male)
8
20
FirstWorld Communications National Price List
Exhibit "B"
NETWORK MANAGEMENT PRODUCTS
MODEL DESCRIPTION LIST PRICE
USS
NT SOFTWARE OPTIONS
-------------------------------------------------------------------------------------------------------------------------------
AP-NTOV10-2.0 Network Management Software for HP OpenView on Windows NT $4,995
platform. Supports up to 10 AN-3200 and attached CPE
devices. Integrated functionality includes Local Domain
Manager with SNMP and CORBA northbound interfaces. (Windows
NT, HP OpenView and hardware not included)
AP-NTOV50-2.0 Network Management Software for HP OpenView on Windows NT $14,995
platform. Supports up to 50 AN-3200 and attached CPE
devices. Integrated functionality includes Local and Multi
Domain Manager with SNMP and CORBA northbound interfaces.
(Windows NT, HP OpenView and hardware not included)
AP-NTOV250-2.0 Network Management Software for HP OpenView on Windows NT $39,995
platform. Supports up to 250 AN-3200 and attached CPE
devices. Integrated functionality includes Local and Multi
Domain Manager with SNMP and CORBA northbound interfaces.
(Windows NT, HP OpenView and hardware not included)
UNIX SOFTWARE OPTIONS
-------------------------------------------------------------------------------------------------------------------------------
AP-UNIX10-2.0 Network Management Software for HP OpenView on Sun Solaris Call
platform. Supports up to 10 AN-3200 and attached CPE
devices. Integrated functionality includes Local Domain
Manager with SNMP and CORBA northbound interfaces. (Sun
Solaris, HP OpenView and hardware not included)
AP-UNIX50-2.0 Network Management Software for HP OpenView on Sun Solaris Call
platform. Supports up to 50 AN-3200 and attached CPE
devices. Integrated functionality included Local and Multi
Domain Manager with SNMP and CORBA northbound interfaces.
(Sun Solaris, HP OpenView and hardware not included)
AP-UNIX250-2.0 Network Management Software for HP OpenView on Sun Solaris Call
platform. Supports up to 250 AN-3200 and attached CPE
devices. Integrated functionality includes Local and Multi
Domain Manager with SNMP and CORBA northbound interfaces.
(Sun Solaris, HP OpenView and hardware not included)
9
21
FirstWorld Communications National Price List
Exhibit "B"
LITERATURE
MODEL DESCRIPTION LIST PRICE
USS
MANUAL AN-20 AN-20 User Manual $20
MANUAL AN-30 AN-30 User Manual $25
MANUAL AN-3200 AN-3200 Reference Guide $200
10
22
FirstWorld Communications National Price List
Exhibit "B"
SUPPORT AND SERVICES
MODEL DESCRIPTION LIST PRICE
USS
MAINTENANCE PROGRAMS (ANNUAL)
-------------------------------------------------------------------------------------------------------------------------------
14ct GoldenCare Includes: 6% of list
- TAC access from 6 a.m. to 6 p.m. PST, Mon-Fri.
- Access to "TechNet" Web based technical support resources.
- Electronic notification and access of maintenance
software releases.
18ct GoldenCarePlus Includes: 10% of list
- TAC access 24 hours a day, 7 days a week. TAC access after
business hours is provided by pager with a 15 minutes
response.
- Access to "TechNet" Web based technical support resources.
- Electronic notification and access of maintenance and
minor software releases.
24ct PureGoldCare Includes: 18% of list
- TAC access 24 hours a day, 7 days a week. TAC access after
business hours is provided by pager with a 15 minutes
response.
- On site remedial maintenance 24 hours a day, 365 days a
year.
- Includes repair or replacement of Accelerated Networks
products that are diagnose as faulty.
- Access to "TechNet" Web based technical support resources.
- Electronic notification and access of maintenance and
minor software releases.
Advanced Parts Includes: 3% of list
- Shipment of replacement part the same business for requests
received prior to 2:00 PM US Pacific time.
- Advanced replacement requests received after 2:00 PM are
shipped the next business day.
- Faulty parts must be returned within 30 days of receipt
of replacement or replacement part is invoiced at full list
price.
- Pre-requisite of either the 14ct GoldenCare or 18ct
GoldenCare Maintenance Programs.
Note:
Maintenance Programs do not include software releases that
enhance the functionality of previously sold product. Such
software upgrades options and features may be sold separately
and are not part of any Maintenance Program. On site remedial
maintenance response time and availability subject to
location.
11
23
FirstWorld Communications National Price List
Exhibit "B"
SUPPORT AND SERVICES
MODEL DESCRIPTION LIST PRICE
USS
INSTALLATIONS
-------------------------------------------------------------------------------------------------------------------------------
InstallationStd-US Standard Domestic Installation Includes: 10% OF LIST
---------------------------------------
- Installation of Products, purchased from Accelerated
Networks, during normal local working hours
- Verification of proper hardware operation
- Basic configuration to permit access of equipment from
the network
- All installation-related travel expenses within the
continental U.S.
Standard Installation excludes:
-------------------------------
- Customer, network, power or telecom writing
- Local Loop qualification or line testing
- Adjustment/fine tuning of voice levels
- Custom configuration
- Network optimization
EXTENDED WARRANTY
-------------------------------------------------------------------------------------------------------------------------------
ESERV/AG1 Extended Warranty Service for 1 year. Includes parts and 5% of list
labor with a 15 days repair cycle.
EQUIPMENT STAGING
-------------------------------------------------------------------------------------------------------------------------------
HT-STG Special Request: Hot Staging 2.5% of list
----------------------------
Product preconfigured to customer's specifications and
tested in a live like environment. Requires customer
completion of configuration form and network diagram.
REPAIRS
-------------------------------------------------------------------------------------------------------------------------------
NWSERV-R1 Equipment that is out of warranty and not covered by a 35% of list
maintenance contract is repaired with a 15 days repair
cycle. All shipment are prepaid.
ADVANCED REPLACEMENT
-------------------------------------------------------------------------------------------------------------------------------
NWSERV=AR1 Includes: 45% of list
- On demand shipment of replacement part the same business
day for requests received prior to 2:00 PM US Pacific time.
- Advanced replacement requests received after 2:00 PM are
shipped the next business day.
- Faulty parts must be returned within 30 days of receipt
of replacement or part is invoiced at full list price.
- If upon inspection the faulty part is deemed
unrepairable, the Advanced replacement shipment is invoiced
at full list price.
12
24
FirstWorld Communications National Price List
Exhibit "B"
FIELD REPLACEMENT UNITS (SPARES)
MODEL DESCRIPTION LIST PRICE
USS
FOR AN-3204 MSAP
-------------------------------------------------------------------------------------------------------------------------------
FR-PSVAC-3204 90-240 VAC Power Supply AN-3204 Call
FR-RMK19-3204 Rack Mounting Kit 19", AN-3204 Call
FR-RMK23-3204 Rack Mounting Kit 23", AN-3204 Call
FOR AN-3220 MSAP
-------------------------------------------------------------------------------------------------------------------------------
FR-BLANKPNL Blank Panel Call
FR-FTU-3220 Fan Tray Unit AN-3220 Call
FR-PLEX-3220 Plexi-glass door to protect the cables on AN-3220 Call
FR-RMK23-3220 Rack Mounting Kit 23", AN-3220 Call
13
25
FirstWorld Communications National Price List
Exhibit "B"
PREVIOUS SOFTWARE VERSION OPTIONS
MODEL DESCRIPTION LIST PRICE
USS
AN-20-IAD SOFTWARE
-------------------------------------------------------------------------------------------------------------------------------
AN-20-SW-B1.2 Basic System Software version 1.2 for the AN-20 IAD. No charge with IAD
Includes RFC 1483 bridged mode.
AN-20SW-R1.2 Routing Software version 1.2 for the AN-20 IAD. Supports $100
RIP 1 & RIP 2 routing.
MSAP SOFTWARE
-------------------------------------------------------------------------------------------------------------------------------
MSAP-SW-A1.2 Aggregator System software version 1.2 $1,995
14
26
FirstWorld Communications National Price List
Exhibit "B"
ORDERING INFORMATION
Customers must specify the type and version of the software on their
purchase order.
Software License: Accelerated Networks Inc. grants customer a
non-exclusive, non-sublicenseable license to install and use
Accelerated Networks Inc. software. This software is licensed and not
sold. Customer acknowledges and agrees that the software contains trade
secrets and other proprietary information of Accelerated Networks Inc.
and that Accelerated Networks Inc. retains all title to and, except as
expressly and unambiguously licensed herein, all right and interest in
the software and all intellectual property rights worldwide therein.
Hardware configuration sheet must be completed for each MSAP order.
Every MSAP base unit must be configured with either Aggregator System
software or Multi-Service Gateway System software. See section on MSAP
System software.
MSAP System requiring a Voice Module must have Multi-Service Gateway
System software installed. See section on MSAP System Software.
Select cables from cabling section. Cable Guide diagram is available on
our website:
xxxx://xxx.xxxxxxxxxxxxxxxxxxx.xxx/
When ordering, please remit Purchase Order to:
Accelerated Networks, Inc.
Attn: Sales Order Administration Department
000 Xxxxxxx Xxxxx
Xxxxxxxx, XX 00000
(000) 000-0000 Telephone
(000) 000-0000 Facsimile
Web Site: xxx.xxxxxxxxxxxxxxxxxxx.xxx
Email: xxxxx@xxxxxxxxxxxxxxxxxxx.xxx
All prices are FOB factory and subject to change without notice.
Contact Accelerated Networks directly for additional information.
15
27
FirstWorld Communications National Price List
Exhibit "B"
SERVICE AND REPAIR POLICY
WARRANTY INFORMATION
All Accelerated Networks' products are covered by a 12-month
return-to-factory warranty. No-charge advance replacement within 30
days of product shipment.
Customer is responsible for inbound freight cost when returning the
product to factory for troubleshoot, repair, or rework.
No charge for parts replacement or labor. Factory is responsible for
outbound freight cost.
OUT OF WARRANTY INFORMATION
Product without warranty and maintenance contract will be subjected to
a 35% of the list price for repairs/services.
Additional 10% of the list price will be added to any expedited service
with turnaround time of 24 hrs instead of 15 business days.
WARNING:
Warranty is void if field upgrades, repairs or replacement are
attempted by non qualified or unauthorized personnel.
16
28
FirstWorld Communications National Price List
Exhibit "B"
GLOSSARY
GLOSSARY OF TERMS
Standard Product lead time is 60 days ARO
Contact Call for product information
AN-20 Accelerator 20 CPE product
AN-30 Accelerator 20 CPE product
AN-30 Accelerator 30 CPE product
AN-3200 Accelerator AN-3200 Multi-Service
Aggregator / Gateway product
SYSMOD System Combo Card
LC Line Card
VSIC Voice Service and Interface Card
CONTACT INFORMATION
Accelerated Networks, Inc.
Web Site: xxx.xxxxxxxxxxxxxxxxxxx.xxx
Email: xxxxx@xxxxxxxxxxxxxxxxxxx.xxx
17
29
EXHIBIT C
END USER SOFTWARE LICENSE AGREEMENT
END USER SOFTWARE LICENSE AGREEMENT
This End User Software License Agreement ("Agreement") is entered into by
Accelerated Networks,. Inc. ("Licensor") and the end user identified below ("End
User").
CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS. BY INSTALLING AND USING
SOFTWARE INCLUDED WITH THE ACCELERATED PRODUCTS, YOU ARE AGREEING TO BE BOUND BY
THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS,
DO NOT USE THE ACCELERATED PRODUCTS.
1. GRANT OF LICENSE. Subject to the terms and conditions of this Agreement
Licensor grants End User a non-exclusive, non-sublicenseable license to install
and use Licensor's software ("Software"). The Software is licensed and not sold.
End User acknowledges and agrees that the Software contains trade secrets and
other proprietary information of Licensor and that Licensor retains all title to
and, except as expressly and unambiguously licensed herein, all right and
interest in the Software and all intellectual property rights worldwide therein.
2. RESTRICTIONS. End User may make one (1) backup COPY of the Software for
archival purposes only. The Software is licensed as a single product and may not
be separated into its component parts for any reason whatsoever. End User shall
not (and shall not allow any third party to) (i) decompile, disassemble, or
otherwise reverse engineer (except to the extent expressly permitted under
applicable law) or attempt to reconstruct or discover any of Licensor's source
code, underlying ideas, algorithms, trade secrets or other proprietary
information by any means whatsoever, (ii) remove any product identification,
copyright or other notices, or (iii) provide, lease, lend, use for timesharing
or service bureau purposes or otherwise use or allow others to use the Software
to or for the benefit of third parties.
3. TERMINATION. This Agreement is effective until terminated. This Agreement
will terminate automatically if End User fails to cure any material breach of
this Agreement within thirty (30) days of receiving notice of such, breach (or
immediately in the case of a breach of Section 2. (Restrictions)). Upon
termination, End User shall immediately cease all use of the Software and return
or destroy all copies of the Software and all portions thereof and so certify to
Licensor. Except for the license and except as otherwise expressly provided
herein, the terms of the Agreement shall survive termination. Termination is not
an exclusive remedy and all other remedies will be available whether or not the
Agreement is terminated.
4. NO GOVERNMENT USE. End User represents that it is not a U.S. government
agency and it is not acquiring the license pursuant to a U.S. government
contract or with U.S. government funds; the license does not authorize or allow
use by, or funded by, any U.S. governmental entity.
5. WARRANTY DISCLAIMER. For a period of ninety (90) following End User's receipt
thereof, Licensor warrants that the Software will substantially conform to
Licensor's published specifications therefor and that the media on which the
Software is provided is free from material defects. End User expressly
acknowledges and agrees that except as expressly set forth above, the Software
is provided "AS-IS" and that use of the Software is at End User's sole risk.
LICENSOR EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT
NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE AND NON INFRINGEMENT. LICENSOR DOES NOT WARRANT THAT THE
SOFTWARE WILL MEET END USER'S REQUIREMENTS, OR THAT OPERATION OF THE SOFTWARE
WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE WILL BE
CORRECTED. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES.
6. LIABILITY LIMITATION. UNDER NO CIRCUMSTANCES INCLUDING, WITHOUT LIMITATION,
NEGLIGENCE, SHALL LICENSOR BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE
GOODS, SERVICES OR TECHNOLOGY OR FOR ANY INCIDENTAL, SPECIAL OR CONSEQUENTIAL
DAMAGES RESULTING FROM THE USE OR INABILITY TO USE THE SOFTWARE, EVEN IF
LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT
ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL
DAMAGES. IN NO EVENT SHALL LICENSOR'S TOTAL LIABILITY UNDER THIS AGREEMENT FOR
ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT TORT (INCLUDING
NEGLIGENCE) OR OTHERWISE) EXCEED THE AMOUNT OF LICENSE FEES PAID TO LICENSOR
HEREUNDER. THIS SECTION 6 DOES NOT LIMIT LIABILITY FOR DEATH OR BODILY INJURY OF
A PERSON.
7. GENERAL. This Agreement may not be assigned or amended except with Licensor's
prior written consent. No failure to exercise any right hereunder will operate
as a waiver thereof If any provision of this Agreement shall be adjudged by any
court of competent jurisdiction to be unenforceable or invalid, that provision
shall be limited or eliminated to the minimum extent necessary so that this
Agreement shall otherwise remain in full force and effect and enforceable. This
Agreement shall be construed pursuant to the laws of the State of California and
the United States without regard to conflicts of laws provisions
18
30
thereof and without regard to the United Nations Convention on Contracts for the
International Sale of Goods. End User shall not export or remove the Software or
any portion or direct product thereof from the country in which End User
received delivery of the Software from Licensor. The sole jurisdiction and venue
for actions related to the subject matter hereof shall be the Colorado state and
U.S. federal courts having within their jurisdiction the location of Licensor's
principal place of business. The prevailing party in any action to enforce this
Agreement shall be entitled to recover costs and expenses including reasonable
attorneys' fees. The parties agree that a material breach of this Agreement by
End User would cause irreparable injury to Licensor for which monetary damages
would not be an adequate remedy and that the Licensor shall be entitled to
equitable relief in addition to any remedies it may have hereunder or at law.
This Agreement is the complete and exclusive statement of the mutual
understanding of the parties and supersedes and cancels all previous written and
oral agreements and communications relating to the subject matter of this
Agreement.
ACCELERATED NETWORKS, INC.
19
