1
EXHIBIT 10.1
NOTE: REDACTED PORTIONS HAVE BEEN MARKED WITH (***). THE REDACTED PORTIONS ARE
SUBJECT TO A REQUEST FOR CONFIDENTIAL TREATMENT THAT HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION.
PROCUREMENT AGREEMENT
BETWEEN
QWEST COMMUNICATIONS CORPORATION
AND
ADVANCED SWITCHING COMMUNICATIONS, INC.
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NOTE: REDACTED PORTIONS HAVE BEEN MARKED WITH (***). THE REDACTED PORTIONS ARE
SUBJECT TO A REQUEST FOR CONFIDENTIAL TREATMENT THAT HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION.
TABLE OF CONTENTS
1. DEFINITIONS........................................................................1
2. SCOPE............................................................................. 6
3. SUPPLIER OBLIGATIONS.............................................................. 8
4. QWEST OBLIGATIONS................................................................. 9
5. GOVERNANCE....................................................................... 10
6. PRICING.......................................................................... 11
7. ORDERING......................................................................... 11
8. DELIVERY AND SHIPMENT............................................................ 12
9. PAYMENT TERMS.................................................................... 14
10. PRODUCT REQUIREMENTS............................................................ 15
11. CHANGES IN THE WORK............................................................. 17
12. ACCEPTANCE PERIOD;ACCEPTANCE.....................................................18
13. SOFTWARE........................................................................ 20
14. (***)........................................................................... 25
15. INFRINGEMENT WARRANTY AND INDEMNITY............................................. 26
16. KNOW HOW AND NEW TECHNOLOGY......................................................27
17. WARRANTY........................................................................ 28
18. GENERAL INDEMNITY...............................................................30
19. LIMITATION OF LIABILITY......................................................... 31
20. CONFIDENTIALITY................................................................. 31
21. TERMINATION, SURVIVAL........................................................... 33
22. FORCE MAJEURE................................................................... 34
23. ASSIGNMENT...................................................................... 35
24. JOINT WORK PRODUCT.............................................................. 35
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NOTE: REDACTED PORTIONS HAVE BEEN MARKED WITH (***). THE REDACTED PORTIONS ARE
SUBJECT TO A REQUEST FOR CONFIDENTIAL TREATMENT THAT HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION.
25. DISPUTES....................................................................... 35
26. RELATIONSHIP OF THE PARTIES..................................................... 36
27. AMENDMENT....................................................................... 37
28. COMPLIANCE WITH LAWS............................................................ 37
29. CONSTRUCTION/HEADINGS........................................................... 38
30. NO WAIVER....................................................................... 38
31. SEVERABILITY.................................................................... 38
32. COUNTERPARTS.................................................................... 38
33. CHOICE OF LAW................................................................... 38
34. REMEDIES........................................................................ 39
35. IMMIGRATION REFORM AND CONTROL ACT.............................................. 39
36. IMPORT/EXPORT....................................................................39
37. PUBLICITY........................................................................39
38. NOTICES......................................................................... 40
39. INSURANCE REQUIREMENTS.......................................................... 41
40. ORDER OF PRECEDENCE............................................................. 42
41. ENTIRE AGREEMENT...................................................................
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NOTE: REDACTED PORTIONS HAVE BEEN MARKED WITH (***). THE REDACTED PORTIONS ARE
SUBJECT TO A REQUEST FOR CONFIDENTIAL TREATMENT THAT HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION.
THIS PAGE LEFT INTENTIONALLY BLANK
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AGREEMENT
This procurement agreement is made and entered into by and between
Advanced Switching Communications, Inc. ("Supplier"), a Delaware corporation,
with a place of business at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and
Qwest Communications Corporation, a Delaware corporation, having its principal
offices and place of business at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Qwest") (Supplier and Qwest each being referred to herein as a
"Party" and collectively as the "Parties").
NOW, THEREFORE, in consideration of the foregoing and of the mutual
promises and covenants hereinafter expressed, the Parties hereto agree as
follows:
1. DEFINITIONS
1.1 The terms used in this Agreement shall have their normal or
common meaning, except that in addition to terms defined at other
places in this Agreement, the following terms shall have the
following meanings for the purposes of this Agreement, the
Schedules and any attachments thereto:
(a) "Acceptance" shall have the meaning given to it in
Section 12.2.
(b) "Acceptance Period" shall have the meaning set forth in
Section 12.1.
(c) (b)"Affiliate" means (i) any individual, corporation,
partnership, joint venture, limited liability company,
limited liability partnership, practice, association,
joint stock company, trust, unincorporated organization
or other venture or business vehicle (each an "Entity")
in which a Party owns a (***) or greater equity
interest; (ii) any Entity which, directly or indirectly,
is in control of, is controlled by or is under common
control with a Party, as applicable, after applying the
attribution rules of Section 318 of the Internal Revenue
Code; or (iii) any other Entity agreed by the Parties.
For the purposes of this Agreement, control of an Entity
("Control") shall include the power, directly or
indirectly, whether or not exercised (i) to vote (***)
(or such lesser percentage as is the maximum allowed to
be owned by a foreign corporation in a particular
jurisdiction) or more of the securities or other
interests having ordinary voting power for the election
of directors or other managing authority of such Entity;
or (ii) to direct or cause the direction of the
management or policies of such Entity, whether through
ownership of voting securities, partnership interest or
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equity, by contract or otherwise. Current Qwest
Affiliates are listed in within thirty (30) days of the
Effective Date, the Parties will amend this Agreement by
the addition of Schedule A (Approved Affiliates)
containing the names of Qwest Affiliates who have been
designated by Qwest and who have met the credit
standards referenced in Section 2.4 (the "Approved
Affiliates").
(d) Agreement" means this agreement including the schedules
described in Section 2.5 and attached hereto (the
"Schedules").
(e) "Class A Change" means a modification, revision,
replacement, (***) of existing Supplier manufactured
Product (***), provided that the Product incorporating
such change, is at least (***) as the same Product prior
to incorporation of such change.
(f) "Current Release" means the latest Version or Release of
the Software which has been approved by Supplier for
commercial use.
(g) "Days" or "days" means calendar days, unless otherwise
provided herein.
(h) "Documentation" means the user, technical and operating
manuals, including the operating instructions, guides
and manuals, necessary to enable Qwest properly to use
and maintain the Products.
(i) "Effective Date" means September 1, 2000.
(j) "Enhancement" means any modification or revision to the
Software that Qwest may opt to license, which (i)
substantially improves existing functions or features,
including functions and features for which Qwest has
already been granted a license, or (ii) adds new
functions or features.
(k) "Equipment" means hardware, equipment, embedded
software, including firmware, and all physical
components, including cabling, required by this
Agreement to be provided by Supplier.
(l) "Form, Fit or Function" shall have the following
meaning. "Form" means shape; "Fit" means physical size
or mounting arrangement (e.g., electrical or mechanical
connections); and "Function" means features and
capabilities.
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(m) "Hardware" means the hardware (and any associated
firmware) that is part of the Equipment.
(n) "Incremental Software Update" or "ISU" means any
modification or revision to the Software, other than
Enhancements, that (i) (***); (ii) supports new releases
of third party operating systems with which the Software
is designed to operate; (iii) supports new Equipment;,
(iv) improves the performance of the Software; or (v)
provides other updates (***). If a modification or
revision described in clause (ii), (iii) or (iv) above
adds new functions or features or substantially improves
the network performance, it shall be deemed to be an
Enhancement with respect to those new functions and
features.
(o) "Installation Site" means the building, complex of
buildings or remote site at which any of the Products
are installed.
(p) "Intellectual Property Rights" mean all forms of
intellectual property rights and protections including,
without limitation:
(i) All right, title and interest in and to all
letters patent and all filed, pending or
potential applications for letters patent,
including any reissue, reexamination, division,
continuation or continuation-in-part
applications throughout the world now or
hereafter filed;
(ii) All right, title and interest in and to all
trade secrets, and all trade secret rights and
equivalent rights arising under the common law,
state law, federal law and laws of foreign
countries;
(iii) All right, title and interest in and to all mask
works, copyrights, other literary property or
author's rights, whether or not protected by
copyright or as a mask work, arising under
common law, state law, federal law and laws of
foreign countries; and
(iv) All right, title and interest in and to all
proprietary indicia, trademarks, trade names,
service marks, symbols, trade dress, logos
and/or brand names protected under common law,
state law, federal law and laws of foreign
countries.
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(m) "Media" means the media on which the Software
and the Documentation for the Software are
recorded or printed as provided to Qwest by
Supplier.
(n) "Network Compatible" or "Network Compatibility"
with respect to a Product means that (i) the
Product will comply with the applicable (***)
and (***) standards in effect on the date that
Qwest issues the Purchase Order, and any other
standards agreed by the Parties in writing; (ii)
the Product can be operationally deployed in
Qwest's network (***); and (iii) the Product
will (***). Qwest in its sole discretion may
waive the foregoing compatibility requirements
for the purpose of deploying new technology
offered by Supplier during the Term.
(o) "Nonconformity" means an instance of failure of
a Product to be Operative.
(p) "Object Code" means machine-readable computer
instructions that can be executed by a computer.
(q) "Operating Platform" means the computer
equipment, hardware and operating system, which
execute the Object Code and on which the
Software runs.
(r) "Operative" means (i) conforming in all respects
to the Specifications, the requirements of this
Agreement and the applicable Purchase Orders in
effect at the time Supplier accepts the Purchase
Order, and (ii) Network Compatible.
(s) "Prior Agreement" means the agreement between
Supplier and Qwest dated June 30, 2000.
(t) "Products" mean the Equipment, Software, and
Documentation, including any part thereof,
described in the Schedules, which this Agreement
requires Supplier to furnish or that Supplier
furnishes hereunder. Qwest and Supplier may
amend the Schedules by written agreement to
include other products offered for sale by
Supplier.
(u) "Program Manager" means the senior manager of a
Party who shall have overall responsibility for
the day-to-day management and administration of
this Agreement and who shall work together with
the other Party's Program Manager to facilitate
an efficient delivery of Products and Services.
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(v) "Purchase Order" means the written instrument
described in Section 7, a form of which is
attached hereto as Schedule B, under which Qwest
orders and Supplier delivers Products or
Services under this Agreement.
(w) "Release" means any revision, modification,
replacement, or correction to the Software,
including an Enhancement or ISU, that Supplier
makes available to any of its customers for use.
(x) "Segment" means a continuous route within the
Qwest network.
(y) "Services" mean work performed and labor
provided by Supplier, including, but not limited
to, design, engineering, installation and
implementation of Products, Software testing,
warranty, technical support, training and
similar activities.
(z) "Software" means any software, including Object
Code, Source Code and firmware that is delivered
to Qwest under this Agreement, inclusive of the
Supplier intellectual property therein, whether
or not the subject of any patent or copyright,
issued or pending. Software may include programs
used to create, enhance, test or maintain any
Product delivered under this Agreement. Software
includes all Releases and Versions.
(aa) "Source Code" means the human-readable code from
which a computer can compile or assemble the
Object Code of the Software, together with a
description of the procedure for generating the
Object Code.
(bb) "Specifications" mean the functional,
performance, design, operational, and physical
characteristics of a Product or System, as
described in the applicable ANSI and ISO
standards and Supplier proposal. If an ANSI or
ISO standard is not available for a new Product,
the formal specification developed by Supplier
and provided to Qwest shall be used.
(cc) "Supplier Personnel" mean any employees,
trainers, or other support personnel provided by
Supplier under this Agreement whether or not
employed by Supplier (to the extent that such
are permitted elsewhere under this Agreement).
Supplier shall be performing under this
Agreement at all times as an independent
contractor to Qwest, and the Supplier Personnel
shall not be considered as employees or agents
of Qwest.
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(dd) "System" means an Operative combination of Products
designed, engineered, furnished, installed or
implemented by Supplier under this Agreement.
(ee) "Version" means a Release of Software intended for use
with a particular make and model of computer or a
particular operating system.
(ff) "Warranty Period" means the time period specified in
Section 17.
1.2 Additional definitions appear elsewhere in the recitals and
subsequent Sections of this Agreement.
2. SCOPE
2.1 The initial term of this Agreement ("Initial Term") commences on
the Effective Date and continues until December 31, 2002, unless
earlier terminated in accordance with other provisions of this
Agreement or unless extended in writing by the Parties . At its
option, Qwest may extend the Initial Term for a period of up to
six (6) months (the "Extended Term") by written notice to
Supplier prior to the expiration date of this Agreement (the
Extended Term, if any, together with the Initial Term, are
hereinafter the "Term").
2.2 (a) Subject to the terms and conditions of this Agreement,
including its Schedules, during the Initial Term, Qwest will
make purchases of Products under this Agreement as follows:
(***). The above amounts are net of any discounts Qwest receives
on the price of the Products.
(b) Supplier will complete development and deployment of the
products and deliverables as set forth in the attached (***). If
Supplier (a) fails to meet any purchase order delivery date due
to a delay or failure to have the products described in (***)
available for successful general availability as of their
corresponding delivery dates, (b) otherwise fails to have the
products described in (***) available for successful general
availability as
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of their corresponding delivery dates, or (c) with regards to
(***), another Supplier offers Qwest better pricing, density
models and functionality due to technology changes, Qwest, at
its sole option, may terminate this Agreement for Cause and
have no further commitment obligation, provided that ASC has
the opportunity to match any bonafide offers within (***) from
date of notification from Qwest.
(c) Subject to Section 21.3, all purchases of Products from
Supplier and its Affiliates by Qwest and Qwest Affiliates will
be credited toward the (***). Any purchases made in excess
of (***).
2.3 This Agreement shall apply to the transactions in which Supplier
furnishes the Products described in the Schedules to Qwest
during the Term.
2.4 Approved Affiliates may issue a Purchase Order under this
Agreement. Affiliates who are not Approved Affiliates may become
Approved Affiliates if they (i) (***) which fulfillment of (***)
Supplier will determine within (***) after notice from (***) and
(ii) (***) of this Agreement. If Supplier has not provided
written acknowledgement of an Affiliate's failure to meet such
credit standards within (***), the Affiliate shall be deemed to
have been authorized to purchase under this Agreement and shall
be deemed an Approved Affiliate. If there has been a transfer of
(***) or more of the assets of any Approved Affiliate who (i) is
seeking to place an new Purchase Order under this Agreement or
(ii) has an outstanding Purchase Order of (***) or more,
Supplier shall have the right to (***) Purchase Order and the
right to review such Approved Affiliate's qualification as such.
If, upon review, the Approved Affiliate no longer qualifies for
approval pursuant to this Section, Supplier shall have the right
to (***), and it shall (***) to place Purchase Orders under this
Agreement without the satisfaction of another (***).
2.5 The following Schedules attached hereto are an integral part of
this Agreement and are incorporated herein by reference.
A. Approved Affiliates
B. Form Purchase Order [Qwest]
C. (***)
D. (***)
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E. (***)
F. (***)
G. (***)
H. Third Party Items
I. (***)
J. (***)
K. Pending Infringement Claims
L. Confidentiality Agreement
M. Product Specification
3. SUPPLIER OBLIGATIONS
3.1 Supplier shall perform all Services and deliver all Products
necessary to fulfill the requirements of this Agreement and
shall perform all work in a professional and workmanlike manner,
in accordance with all requirements, acceptance criteria and
Specifications of this Agreement and the warranties provided
hereunder. Among its obligations, Supplier shall:
(a) complete all tasks required by a an accepted Purchase
Order by providing all necessary resources, personnel,
materials and equipment;
(b) adhere to agreed delivery dates;
(c) supervise and manage the overall Supplier's effort under
each Purchase Order and this Agreement and coordinate
its efforts with the Qwest Program Manager; and
(d) provide competent personnel of sufficient experience and
expertise to fulfill the goals of this Agreement.
3.2 In addition to other requirements contained in this Agreement,
Supplier will consider the following Qwest objectives in its
delivery of Products and Services under this Agreement:
(a) ensuring a smooth transition from the existing products
to new Products provided hereunder as possible;
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(b) training; and
(c) using an orderly approach for any significant
implementation of new Products.
3.3 Supplier is responsible for providing qualified personnel in the
quantities and of the experience necessary to fulfill the
requirements of this Agreement. When requested by Qwest,
Supplier shall provide the names of Supplier Personnel providing
Services at Qwest sites.
4. QWEST OBLIGATIONS
4.1 By the end of the third quarter of each calendar year, Qwest
will provide Supplier with a forecast of Qwest's estimated
Product requirements for the next calendar year (each a
"Forecast"). Qwest will update this Forecast each quarter and
when significant changes occur. The Forecast shall be for
planning purposes only and shall not represent Qwest's
commitment to purchase any or all such Products or create any
other obligation whatsoever by Qwest.
4.2 Qwest agrees that all Supplier Personnel who are approved in
writing by Qwest to be involved in any effort under this
Agreement will be provided reasonable access to Qwest's premises
during mutually agreed times as necessary. Supplier Personnel
shall comply with site and security regulations specified by
Qwest.
4.3 For all Products not on Supplier's price list ("Non-Price List
Products"), Qwest shall issue (***) to Supplier no later than
(***) prior to the required equipment ship date for Non-Price
List Products included in the Forecast. Non-forecasted Non-Price
List Products equipment will require (***) advance notice to
Supplier. Supplier's sales engineering shall issue a written
proposal to Qwest for Product purchases within two weeks of
receipt (***), or a reasonable time thereafter as necessary to
complete the proposal.
5. GOVERNANCE
5.1 Key Personnel.
Supplier agrees that each of the following Supplier Personnel
("Key Personnel") who are currently in the following positions
will devote substantially her or his full time and effort to the
Qwest account.
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NAME POSITION
---- --------
(***) Director
(***) Engineer
Before assigning an individual as a replacement for any of the
Key Personnel, Supplier will notify Qwest of the proposed
assignment, will provide Qwest with a description of the
education and experience and any other job-related information
about the individual reasonably requested by Qwest and will
introduce (either by telephone or, if requested by Qwest in
person) the individual to appropriate Qwest representatives.
Thereafter, if Qwest consents, in writing, to the proposed
assignment within (***) such consent not to be unreasonably
withheld, Supplier will assign the individual as a Key Personnel
replacement.
5.2 Meetings.
By (***), the Parties will mutually determine appropriate
intervals for periodic meetings to be held between
representatives of Qwest and Supplier. At a minimum, these
meetings will include the following:
(a) (***) meeting between the respective project management
teams;
(b) (***) management meeting to review Supplier's progress
under (***) and such other matters as appropriate; and
(c) (***) executive review meeting to review relevant
contract and (***) issues.
Each Party's Program Manager or individual designated by the
Program Manager will attend each meeting.
5.3 Personnel.
Qwest reserves the right to require replacement of any Supplier
employee or contractor performing work for Supplier under this
Agreement if Qwest is reasonably dissatisfied with the
performance of that individual and reasonably determines that
the continued assignment of such individual is not in the best
interest of Qwest. Qwest shall give Supplier written notice
requesting that the individual be replaced and stating the
reasons for the request. Supplier shall replace such individual
with a person of suitable ability and qualifications within
(***) from the request or such additional time period as may be
reasonably required under the circumstances.
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5.4 Reports.
Supplier shall provide to Qwest written progress reports as
agreed by the Parties, on at least a weekly basis, delivered by
electronic mail followed by a paper copy to Qwest's designated
representative. Progress reports shall include: (i) the status
of delivery under all open Purchase Orders for Products; (ii)
items completed during the reporting period; (iii) items to be
completed within the next reporting period; (iv) open action
items; and (v) any other action items required by Qwest, listing
the party responsible for such actions.
6. PRICING
Qwest shall receive a (***) the prices set forth on (***).
7. ORDERING
7.1 (a) Qwest (or an Approved Affiliate) shall issue Purchase
Orders, a form of which is attached hereto as Schedule B, to
acquire all Products under this Agreement. All Purchase Orders
must be submitted (***) prior to the delivery date designated in
the Purchase Order (with respect to (i), below) or as agreed
upon by the Parties (with respect to (ii), below) (the "Order By
Date"). Upon request by Qwest, the Parties will in good faith
discuss a shorter period for Purchase Order submission. (i) For
all Purchase Orders less than or equal to (***) of the Forecast
amount which are submitted prior to the Order Date, Supplier
agrees to be bound by the designated delivery date.
(ii) For all Purchase Orders that are in excess of (***) of the
Forecast or are submitted after the Order Date, (***).
7.2 Supplier shall confirm and accept the Purchase Order in writing
in accordance with (***) at which point the Purchase Order shall
become a binding commitment. Subject to Section 7.1, Supplier
agrees to accept all Purchase Orders issued by Qwest under this
Agreement provided that such Purchase Orders conform with the
requirements of this Agreement.
7.3 Any changes to a Purchase Order shall be made in writing.
7.4 All Purchase Orders issued hereunder by Qwest or the Approved
Affiliates shall reference this Agreement and shall be deemed to
incorporate and be governed solely by the terms and conditions
set forth herein. Any changes to the terms and conditions of the
Agreement contained in any Purchase
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Order or Supplier's written acknowledgement thereof shall have
no force or effect.
8. DELIVERY AND SHIPMENT
8.1 Supplier shall deliver Products as required under this Agreement
to Qwest or Approved Affiliates (as applicable) at the locations
and at the times specified by Qwest or Approved Affiliates (as
applicable), and agreed to by Supplier in an accepted Purchase
Order, this Agreement or as otherwise agreed in writing by the
Parties. For purposes of this Section 8, "Buyer" shall mean
Qwest or its Approved Affiliate, as applicable. Supplier shall
deliver all Products and Services at the designated location in
a timely manner.
8.2 Supplier shall ship all Products purchased pursuant to this
Contract, freight prepaid, (***) designated in the Purchase
Order or to such other location as the Parties may agree
("Destination"). The method of shipment shall be consistent with
the nature of the Products and hazards of transportation. Risk
of loss for all Products ordered in accordance with this
Agreement shall pass to Qwest (***) except loss or damage
attributable to the Supplier's fault or gross negligence. Such
loss, damage, or destruction shall not release Supplier from any
obligations hereunder. Upon delivery the risk of loss or damage
shall be borne by the Qwest. Title to Products (excluding
Software) shall pass to Qwest upon delivery to the Destination.
Supplier shall convey good title, free from any claim or
encumbrance, for all Products (excluding Software) delivered to
Qwest under this Agreement. Supplier will pack the Products
purchased hereunder for transport in accordance with its
commercial standards and will deliver the Products to a carrier
of the mode of transportation selected by Supplier unless
otherwise agreed upon in writing by the Parties.
8.3 If Supplier fails to meet any agreed schedule, Qwest, without
limiting its other rights or remedies as specified herein, may
direct expedited routing of Products (***). Qwest shall not be
liable for Supplier's commitments or production arrangements in
excess of the amount, or in advance of the time, necessary to
meet Qwest's delivery schedule. Delivery shall not occur (***)
in advance of the delivery date. If delivery occurs prior to the
period authorized above and designated storage has not already
been established by Supplier, Qwest may (i) return delivered
items at Supplier's expense for proper delivery, or (ii) place
delivered items in storage at Supplier's expense until the
scheduled date of delivery.
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8.4 The Parties agree that for all shipments that otherwise meet the
designated delivery dates (a) any failure to supply all Products
ordered in a single shipment or (b) any partial shipment or
delivery of an Order in installments shall not constitute a
breach of this Agreement provided that Supplier has received
Buyer's prior written approval of the same, such approval not to
be unreasonably withheld.
8.5 Performance Incentives
(a) Subject to Section 21, for accepted Purchase Orders of
Products with an aggregate value of (***)or more,
Supplier and Qwest agree that it may be difficult, if
not impossible, to accurately determine the amount of
damages that Qwest may incur, if Supplier fails to
deliver the Products as scheduled. Accordingly, if
delivery has not occurred with respect to any Product,
Segment or System within (***) after the scheduled
delivery date, Buyer shall be entitled to daily
performance incentives in a specified and predetermined
amount of (***) of the total price of the affected
Product, Segment or System, per day late, up to a
maximum of (***) of total price of the Product, Segment
or System ("Performance Incentive").
(b) Buyer shall not assess Performance Incentives to the
extent that Supplier has been delayed by Buyer not
fulfilling its obligations under this Agreement.
8.6 Equipment Tracking Data. Supplier shall provide Qwest with
quarterly reports containing the following information in a
jointly developed format. The reports shall contain Equipment
information, including: (1) a description of the Equipment; (2)
Supplier part number; (3) Equipment destination by building
(final); (4) shipping date; and (5) Supplier serial number.
8.7 In the event that Qwest installs a bar coding system for its
fixed assets, Supplier shall apply a Qwest asset tag (to be
supplied by Qwest) at either the manufacturing site or at the
point of shipment for the Equipment in a manner that allows
Qwest to easily read the asset tag. Supplier may charge an
agreed fee to cover any reasonable Supplier's costs associated
with such bar coding system. A joint meeting will be held
between Supplier and Qwest within (***) of contract execution to
further define these requirements and fees (if any).
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9. PAYMENT TERMS
9.1 Subject to Section 12, Supplier shall invoice Qwest for Products
upon shipment (and shall invoice Approved Affiliates for
shipment to Approved Affiliates) and Qwest (or the Approved
Affiliates) shall pay to Supplier the price of each shipment
(including any prepaid transportation and/or insurance) within
(***) from the date of (***). For all other Services (including
Services provided to any Approved Affiliate), Supplier shall
invoice Qwest (or the Approved Affiliate, as applicable) upon
(***). Charges for any other amounts payable pursuant to this
Agreement shall be paid by Qwest within (***). All payments
shall be made in U.S. Dollars. The date of the payment shall
be deemed to be the date (***).
9.2 Qwest is not required to pay invoiced amounts disputed in good
faith until such dispute is resolved; provided, however, Qwest
shall pay that (***) unless it (***). Once the dispute is
resolved, the invoice shall be paid within (***) following such
resolution, or in the time frame set out in Section 9.1,
whichever is greater.
9.3 Credits owed to Qwest under this Agreement, may be applied
against amounts owed to Supplier under this Agreement, or at
Qwest's request, for amounts other than Management Discounts,
retroactive discounts may be paid to Qwest within (***)
following a request by Qwest.
9.4 Payment shall not be considered Acceptance of any Products or
Services (which Acceptance shall be as set forth in Section 12).
Subject to Section 21, Supplier shall provide Products without
interruption in the event of disputes concerning an invoice
amount provided that the Parties are working together in good
faith to resolve the dispute.
10. PRODUCT REQUIREMENTS
The following provision shall apply to all Products provided under this
Agreement.
10.1 Documentation.
(a) Supplier shall furnish to Qwest (***) in both (***)for
Qwest (***) for use in the operation and ongoing
maintenance of the Products. Supplier shall deliver
reasonable Documentation to allow Qwest to install and
use each ISU and Enhancement.
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19
(b) Qwest may copy the Documentation subject to the rights
and restrictions in this Agreement and for Qwest's
internal use only. All such Documentation is to be
treated in accordance with the terms of this Agreement.
Updates to Documentation shall be provided at no charge
during the Warranty Period.
(c) The Documentation shall describe fully the proper
procedure for using the Products and provide sufficient
information to enable Qwest to operate and maintain the
Products.
10.2 Equipment.
(a) Supplier shall make available to Qwest sufficient repair
and spare parts for each Product furnished under this
Agreement to keep such Product Operative for a period of
(***) from the date of last shipment of the Product.
(***) shall not exceed (***)from the (***). Supplier, at
its option and expense, may replace Products for which
repair parts are no longer available with functionally
equivalent Products provided that such products are
Network Compatible.
(b) Supplier shall provide Qwest with written notice of the
manufacturing discontinuance for any particular Product,
and, subject to subsection (a) above, shall furnish the
repair parts to Qwest at the (***) unless furnished
during the Warranty Period in which case a supply that
may be reasonably needed during the Warranty Period, and
(***) pursuant to the Warranty provided in Section 17,
shall be supplied (***).
(c) Supplier shall neither provide nor incorporate any
Product which adversely affects Form, Fit or Function,
Network Compatibility, interface or interchangeability
of Qwest's existing hardware or software environment
without the prior express written approval of Qwest.
Qwest shall notify Supplier if it becomes aware that a
Product is not Network Compatible.
(d) In the event of a (***), Supplier shall provide
immediate written notice to Qwest and shall proceed
promptly to make the necessary changes at (***).
(e) All changes must be Network Compatible.
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20
10.3 Substitutions and Modifications.
Supplier shall give Qwest at least (***) advance written notice
of any modification in the design or Specifications of the
Products supplied hereunder. If any such modification, which
affects the Form, Fit or Function of the Products (i) adversely
affects the expected life, operation or performance of any
Equipment or Software; (ii) causes Qwest to incur significant
costs; (iii) prevents proper operation of equipment in the Qwest
network that otherwise meets Specifications; or (iv) prevents
any Product from meeting the applicable Specifications, Qwest
shall have the right to (***).
Supplier with written approval from Qwest, (***)to an (***).
10.4 Incremental Software Updates.
During any Warranty Period thereafter, Supplier shall offer to
Qwest any ISUs contained in a Release or Version of the Software
at (***) when they are made available to any of Supplier's other
customers or upon a production of new Release or Version.
Providing such ISUs shall not relieve Qwest of its obligation to
(***). Qwest shall be responsible for installation of such ISUs
in the network. Supplier shall make all Releases available to
Qwest no later than it makes the same available to Supplier's
other customers.
10.5 Training.
Supplier shall provide Supplier shall provide a training credit
of (***) towards ASC training per (***) in orders placed by
Qwest.
The Courses are set forth in (***). The training will take place
at a Supplier training location agreed to by the Parties, and
will consist of materials developed and controlled by Supplier.
All travel and living expenses for the training sessions shall
be borne by Qwest. Training in addition to that described in
this Section 10.5 shall be provided at the then current Supplier
rates. A credit of (***) per (***) will be available
11. CHANGES IN THE WORK
11.1 If Qwest finds there is a need to request that Supplier perform
services or provide products beyond the scope of this Agreement,
then (i) Qwest shall submit a proposed amendment to the
Schedules or this Agreement in writing and (ii) Supplier shall
evaluate the impact of the proposed change considering cost,
schedule and performance as well as any impact on the
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21
delivery of Products and Services to be provided hereunder and
shall respond by providing Qwest with a formal proposal. The
Parties may then further negotiate the proposed amendment or
incorporate Supplier's proposal by written agreement as an
amendment to this Agreement.
11.2 If Supplier finds that there is a need for it to perform
services or provide products beyond the scope of this Agreement,
then Supplier shall submit a formal proposal detailing the
proposed amendment in writing and evaluating the impact of the
proposed amendment on cost, schedule and performance as well as
any on the delivery of Products and Services to be provided
hereunder. The Parties may then further negotiate the proposed
amendment or incorporate Supplier's proposal by written
agreement as an amendment to this Agreement.
11.3 Any additional charges authorized by Qwest in writing, not
contained in any Purchase Order or Schedule, shall reflect
Supplier time and materials (and Supplier subcontractor time and
materials) as stated in (***) or as otherwise agreed by the
Parties in writing.
11.4 Claims for Delay.
(a) If Supplier wishes to request an extension in the
delivery date for Products provided in a Purchase Order,
written request shall be given to Qwest at the time the
delay begins, or within (***) thereafter if the
resulting delay was not reasonably foreseeable. The
request shall state the circumstances of the occurrence,
the justification for the delay and extension of time,
and the estimated duration of the delay and extension
requested. Supplier shall also be obligated to do all in
its power to mitigate the adverse impact of such delay
at no additional cost to Qwest.
(b) Supplier agrees that it shall not request extensions of
time resulting from normal inclement weather
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22
(c) (***) shall be the sole remedy of Supplier for any delay
caused by (***). Subject to Section 8.5, Supplier acknowledges
(***) to be its sole remedy and agrees to make no claim for (***)
of any sort for delay in the performance of this Agreement or any
Purchase Order for any reason. Entitlement to (***)shall be
subject to compliance with all notice and submission requirements
imposed by the Agreement concerning such claims.
12. ACCEPTANCE PERIOD; ACCEPTANCE
12.1 Field Trial Test.
All Products shall be subject to a test procedure as set forth
in (***) hereto. In addition, for Products not certified by
Qwest as Field Trial Accepted, Qwest agrees to conduct (***) and
complete a Field Trial of such Products by (***), such Field
Trial to be generally in accordance with (***), and as (***).
Upon successful completion of the Field Trial Qwest will (***)
in a form determined by Qwest, such Products as certified for
"Expedited Acceptance." Upon receipt of such certification by
Qwest, Qwest and the Approved Affiliates shall have the right to
inspect and reject such Products for failure to be Network
Compatible or other errors for a period of (***) from delivery
(the "Expedited Inspection Period"). Subject to Section 12.5,
such Products shall be deemed to have passed inspection and
accepted after the expiration of the Expedited Inspection
Period, unless Qwest or the Approved Affiliate notifies
Supplier, during the Expedited Inspection Period, of a
reasonable cause for rejection of the Products due to a failure
(***).
For all Products that have not been Field Trial Accepted by
Qwest, each Approved Affiliate may perform Field Trial Tests.
Upon successful completion of the Field Trial Test, such
Approved Affiliate will (***) that for such Approved Affiliate,
such Product is certified for Expedited Acceptance. Such
Approved Affiliate shall then have the right to inspect and
reject such Product for failure to be Network Compatible for the
Expedited Inspection Period.
12.2 Acceptance.
For Products not certified for Expedited Acceptance, Qwest shall
have the right to inspect and reject such Products for failure
to be (***) for a period of (***) from scheduled delivery (the
"Inspection Period"). Subject to Section 12.5, such Products
shall be deemed to have passed inspection and accepted after the
expiration of the Inspection Period, unless Qwest
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23
notifies Supplier, during the Inspection Period, of a reasonable
cause for rejection of the Products due to a failure to be
(***). Any subsequent order of a Product that has previously
been accepted pursuant to this Section 12.2 (***).
12.3 Failure of Acceptance.
Qwest's payment obligations in Section 9 are contingent upon
(***) in accordance with (***). If a Product fails to achieve
acceptance as provided in (***), Qwest may return the Product,
title to which shall pass to Supplier upon delivery to Supplier,
and apply amounts paid for such Product, if any, and related
Services to any unpaid Supplier invoice hereunder upon written
notice to Supplier, or upon written demand by Qwest, Supplier
shall repay such amounts, if paid by Qwest, to Qwest.
12.4 New Products.
In the event Supplier develops New Products Supplier will give
Qwest (***) notice thereof, along with the expected
Specifications therefor and pricing (***). Qwest may request
that this Agreement be amended in order to make the terms of
this Agreement applicable to the purchase by Qwest of New
Products and the Parties shall negotiate in good faith the terms
of such amendment, including (***), and the conduct by Qwest of
a Field Trial for the New Product. Such Field Trial shall be
substantially similar to the Field Trial described in (***)
hereto. If the Field Trial for the New Product is successful,
such New Products will be certified for Expedited Acceptance and
the terms of this Agreement, as amended with respect to the New
Product, shall apply to the purchase and sale of such new
Products. New Products shall mean Products with material changes
in previously applicable Specifications, which Specifications
have not been approved by Qwest.
12.5. Commercial Use.
Notwithstanding the foregoing, Products will be deemed accepted
upon the full commercial deployment for use with network traffic
by Qwest, irrespective of Expedited Acceptance status or the
expiration of the Inspection Period or Expedited Inspection
Period.
13. SOFTWARE
13.1 License Grant.
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Upon delivery of Software hereunder, Supplier grants to Qwest
and its Affiliates who (***), (for the purposes of this Section,
each a "Licensee") a nonexclusive, irrevocable, perpetual,
worldwide license and right to use and make copies of the
Software and the Intellectual Property Rights for which (***)
for use solely with the applicable Products so long as Licensee
uses such Products in accordance with this Agreement.
Enhancements may be provided at a later date as set forth in
(***). A "right to use" license under the same terms and
conditions as set forth in this Section 13 for such Enhancement
will be effective upon (***).
13.2 Releases.
Supplier may, from time to time, issue Releases to of the
Software. As set forth in Section 1 (Definitions), Supplier may
classify such Release as (i) an Enhancement, (ii) an ISU or
(iii) both. During the Warranty Period and the term of any
maintenance or support agreement, (***) shall (***). Qwest
acknowledges that from time to time Enhancements may be
contained in a Release that have not been licensed to Qwest.
Qwest and Supplier shall agree in writing on the (***), in its
(***). Notwithstanding the foregoing, ISUs and Enhancements
shall not include the (***). Qwest shall be responsible for the
installation of such Releases in the Network.
13.3 Title.
Subject to Section 13.5, Title to the Software described herein
shall remain with Supplier, or with the various suppliers to
Supplier whose software or software components are contained in
the Software and whose rights of ownership are maintained
through restrictive agreements with Supplier.
13.4 Limitations of License Grant.
(a) The Software and Documentation are to be used only by
the Licensee, for its own business use, and only for the
intended use of the Software and Documentation (***) for
which (***).
(b) Licensed use is limited to the Software as delivered by
Supplier to Licensee and does not permit modification or
use of any modified form of the Software, except for
minor user modifications or customizations. Licensee may
not duplicate the Software, except to make a reasonable
number of backup copies of the Software for use in the
event of Product failure. If duplication (***).
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25
(c) The Software and Documentation furnished hereunder are
the property of Supplier and are to be considered
Supplier's proprietary information. Licensee shall not
(***), before or after termination of this Agreement,
except as may be permitted in writing by Supplier.
Licensee shall immediately notify Supplier, in writing,
of any knowledge that any unlicensed party possesses the
Software or Documentation. Licensee shall safeguard said
Software with the same degree of care and diligence as
Licensee affords to its own similar property.
(d) Qwest acknowledges that Software may contain programs
that have been supplied by, and are proprietary to,
third party software vendors. The terms and conditions
of any such third party program licenses may be
different than the terms herein, and in such event,
(***) prior to delivery for such terms to be effective.
Supplier will extend to Qwest (***) under any such third
party Licenses.
13.5 Derived Products and Derived Dependent Products.
(a) Any (i) Qwest (or Qwest Affiliate) (***) by Qwest (ii)
Qwest (or Qwest Affiliate) (***); (iii) Qwest (or Qwest
Affiliate) (***); and (iv) unless otherwise set forth in
a signed writing by the Parties referencing this
Section, any portion of a (***) or arrangement of the
(***)by Supplier (either with or without Qwest) after a
(***) therefore shall not be considered a derived
products and shall be distinct in ownership from that of
the Software as received by Qwest and shall be owned by
Qwest (and are hereby assigned to Qwest) (collectively,
the "Qwest Products"). The foregoing (iv) shall (***) or
otherwise (***) and does not result in any assignment to
Qwest of the Software apart from such portions of any
such configurations, applications or arrangements. Any
other configuration, application, or arrangement of the
Software, shall be considered a derivative work and
shall be the sole and exclusive property of Supplier;
provided, however, that Supplier may, at its discretion,
assign or license (***) or license not to be
unreasonably withheld.
(b) Any (***) which are (***) and are (***), shall be
considered a derived products to which Supplier retains
title and ownership and to which Licensee is granted an
exclusive perpetual, irrevocable, worldwide right to use
solely in its dependent form, and in conjunction with
the Software for so long as such Licensee uses such
Software in accordance with this Agreement.
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26
(c) Supplier expressly prohibits, and Licensee agrees to
refrain from, any attempt by Licensee, Licensee's agent
or to permit any third party to disassemble, reverse
compile, reverse engineer, or, in any similar way,
expose the actual instruction sequences, internal logic,
protocols, algorithms or other intellectual property
represented within the Software, which Supplier
considers to be its proprietary information and trade
secret whether or not said intellectual property is
included in any patent or copyright. Notwithstanding any
other provision of this Agreement, any (***), such
effort by Licensee or any other party shall not be
assigned and shall be deemed the property of Supplier,
for which no right to use is granted to Licensee herein
and for which Supplier shall bear no obligations for
support.
13.6 Software Maintenance and Support.
(a) Supplier shall provide Software technical support
services as provided in (***).
(b) Notice to Qwest of corrections or additions,
modifications or adjustments to the Software generally
available to other Supplier's customers with the same
Release shall be sent to a designated Qwest contact.
Supplier will, at its own discretion, make such
additions, modifications or adjustments to the Release
of the Software commonly known as the Current Release
except if such (***), in which case Qwest may (***)
obligations hereunder.
(c) Supplier agrees that at any point in time it will
support the then Current Release of the Software plus
the (***) immediately preceding Releases.
13.7 (***) Delivery.
(a) Supplier shall keep and maintain a copy of Software
(***) and other Documentation relevant to the use and
maintenance of the Software licensed hereunder,
including without limitation the Current Release of the
Software. Should Supplier at a future date (i) declare
voluntary bankruptcy or be the subject of an involuntary
bankruptcy (***); or (ii) cease supporting the Products
or any other product incorporating such Software (***)
pursuant to this Agreement for a non-material amount of
time, then Supplier agrees and commits to Qwest that it
will promptly and (***) to the fullest extent permitted
by any third party intellectual owners, (***) which
Supplier has a legal right to sublicense, and hereby
grants to
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Qwest a non-exclusive perpetual, irrevocable, worldwide
license to use, modify, (including creating derivative
works), and copy such (***) solely for the purpose of
supporting and maintaining the Products including
Software and only for so long as Licensee (***) Products
or Software (***).
(b) Supplier acknowledges that if a trustee in bankruptcy or
Supplier as a debtor in possession rejects this
Agreement, Qwest may elect to retain its rights under
this Subsection as provided in Section 365(n) of ▇▇▇▇▇
▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code (the "Bankruptcy Code"). In that
event, the license for the Software (***) will include
the following provisions:
(i) Qwest has no further recourse with respect to
support in the areas to which the license
applies;
(ii) Supplier will assume no obligations or
liabilities with respect to infringement
(related to the Supplier (***)), and/or Qwest's
inability to successfully support the Software
(***); and
(iii) Supplier's then standard terms applicable to
confidentiality obligations and Supplier's
disclaimer of liabilities with respect to
Qwest's subsequent use (of the Software (***)).
13.8 Documentation.
In addition to the requirements of Section 10.1, Supplier shall
provide (***). (***). Licensee may purchase (***) at the (***).
Planning guides are available and will be delivered (***)with
each and every Release delivered to Licensee.
13.9 Transfer of License.
(a) Qwest may transfer, assign or sublicense (such
sublicense only to the extent (***) those rights (***)
to use the Products), any license granted by Supplier
hereunder, to any Affiliate, holding company, subsidiary
of holding company, subsidiary, associated company, or
successor in interest of Qwest or any person controlling
or controlled by any of the foregoing or to any person
directly or indirectly under common control with Qwest
(collectively, "License Transferee"), provided such
License Transferee (***).
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(b) Qwest and any successor to Qwest's title in any Products
shall have the right without further consent of Supplier
to assign or sublicense (such sublicense only to the
extent necessary to grant those rights necessary to use
the Products), the License herein granted to any other
party who subsequently acquires the right to use the
applicable Products, provided that any such other party
prior to the transfer of the applicable Software (***) by
the (***).
14. (***)
14.1 (***)
14.2 (***)
15. INFRINGEMENT WARRANTY AND INDEMNITY
15.1 Supplier warrants that it or its Affiliates are the owner of the
Intellectual Property Rights of the Products, or, if the
Products or other materials contain third party products or
software, that Supplier has the full power and authority to
deliver, convey and grant to Qwest the related license and other
rights granted under this Agreement. Supplier further warrants
that Supplier's provision of Services under this Agreement,
grant of the licenses hereunder, and Qwest's use of the Products
will not constitute a misappropriation of any trade secrets,
infringement or misappropriation of any copyright or trademark
or (***) any patent.
15.2 Supplier shall defend or settle, at its expense, any threatened
or actual claim, suit or proceeding made against Qwest that use
of the Products infringes any patent, trademark, copyright,
trade secret or other intellectual property right of a third
party ("Infringement Claim"), and (***). In order for this
indemnification to apply to a claim, Qwest shall give Supplier
prompt notice following Qwest's knowledge of any such
Infringement Claim, shall allow Supplier to control the defense
of and settlement negotiations with regard to such claim,
provided that Qwest (***) the settlement or compromise. The
Parties shall provide reasonable cooperation and assistance in
the defense of the Infringement Claim.
15.3 If any Product furnished under this Agreement becomes, or in
Qwest or Supplier's reasonable opinion is likely to become, the
subject of any claim, suit, injunction or proceeding arising
from or alleging infringement of, or in the event of any
adjudication that such Product infringes on, any Intellectual
Property Right, Supplier, (***), shall take the following
actions in the listed order of preference:
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(a) (***) to procure in a timely manner for Qwest and its
Affiliates (if applicable) the right to continue using
the Product (***); or if those efforts are unavailing;
(b) (***) to replace or modify the Product to make it
non-infringing; provided, however, that such
modification or replacement shall (***); or
(c) if (a) and (b) are commercially impracticable or would
cause the Products to fail to be (***), accept return of
the Product and refund Qwest (***). (***).
15.4 Supplier shall have no liability in respect of any Infringement
Claim based on the use of a Product to the extent that such
claim (i) is based on a use of a Product by Qwest in a manner or
for a purpose not contemplated by this Agreement; (ii) is based
on a use of the Product by Qwest in combination with other
non-Supplier products where such combination is (***), provided
the Infringement Claim arises (***); or (iii) is based on a
modification of the Product by Qwest where such modification has
(***).
15.5 This Section 15 establishes the entire rights and obligations of
the Parties for claims of infringement of Intellectual Property
Rights.
16. KNOW HOW (***)
Notwithstanding anything to the contrary contained in this Agreement,
each Party shall be entitled (***) to use, disclose and sell any
know-how retained in the minds of employees of such Party, expertise,
techniques, approaches or concepts (the "Know-how") developed or
acquired in the course of performing under this Agreement. The Parties
agree that Know-how shall not include any Qwest, Supplier or third party
(***), or any Confidential Information of the other Party. The foregoing
shall not be construed as granting a license (***). The Parties
recognize that New Technology may be developed during the Term. If any
New Technology is deemed by the Party that created it to be deserving of
intellectual property protection, then that Party is responsible for
taking steps to protect any interests it may have in such New Technology
and may refuse to disclose such New Technology during its pursuit of
(***) in the same.
17. WARRANTY
17.1 (a) Supplier warrants that the Products supplied hereunder
will befree from (***) defects in design, workmanship
and material and shall (***) conform to its
Specifications for (***) from the date of
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shipment stamped on the Product or, if the date of
shipment is not marked on the Product, (***) from the
date of manufacture ("Warranty Period"), or if the date
of shipment is not marked on the Product, (***) from the
date of manufacture.
(b) The foregoing warranty shall not apply to the extent
that (i) the (***) is caused by the Product having been
altered or repaired by any party other than Supplier
without Supplier's prior, written consent; (ii) the
(***) results from Qwest's (***); or (iii) the Product
having been damaged by (***). This foregoing Product
warranty does not apply to items normally consumed in
operation, such as, but not limited to, lamps and fuses.
If a (***) occurs, Qwest shall give Supplier a
reasonable opportunity to (***), as set forth in (***),
before exercising any other rights or remedies it may
have under this Agreement.
(d) Supplier shall provide technical support for a Product
performed by qualified and competent personnel for a
period of (***) after Acceptance of the Product as set
forth in (***).
17.2 Supplier warrants that the (***) and any media used to
distribute it does not contain any computer instructions,
circuitry, routines or other technological means ("Harmful
Code") whose purpose is to disrupt, damage or interfere with
Qwest's use of its computer and telecommunications facilities
for their commercial, test or research and development purposes.
Supplier shall indemnify Qwest and hold Qwest harmless from and
against any and all claims, losses, costs, liabilities, damages
and/or expenses, including reasonable attorneys fees, arising
from the presence of Harmful Code in or with the Software or
contained on media delivered by Supplier.
17.3 Supplier shall perform all Services required under this
Agreement including without limitation, customization services,
implementation, maintenance services and training services in a
(***) of any development tools used in providing its Services.
With Qwest's prior written consent, Supplier may perform its
(***) hereunder through an agent.
17.4 Supplier warrants during the Warranty Period that the Products
provided hereunder shall be able to accurately process data
(including without limitation, calculating, compiling and
sequencing date data) from, into and between the twentieth and
twenty-first centuries, including leap year calculations, and
will create, store, process and exchange (input and output)
information related to or including dates on or after January 1,
2000, without error or omissions ("Year 2000 Compliant").
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31
17.5 The Warranty Period for any replacement Product provided by
Supplier under this Agreement shall be the greater of (***); or
(ii) an additional Warranty Period of (***) from the date of
Acceptance of the replacement Product by Qwest.
17.6 Upon expiration of the applicable Warranty Period for Equipment
furnished hereunder, repair and replacement service for such
Equipment shall be available to Qwest from Supplier in
accordance with (***).
17.7 During the Warranty Period for a Product, Supplier shall provide
warranty support services performed by (***) personnel as set
forth in ScheduleG. Supplier shall deliver to Qwest and keep
current a list of persons and telephone numbers ("Calling List")
for Qwest to contact in order to obtain answers to questions
arising, or assistance in solving problems or Nonconformities
occurring, during Qwest's use of any of the Products. The
Calling List shall include (i) the first person to contact if a
question arises or problem occurs, and (ii) the persons in
successively more responsible or qualified positions to provide
the answer or assistance desired. If Supplier does not respond
promptly to any request by Qwest for telephone assistance, then
Qwest may attempt to contact the next more responsible or
qualified person on the Calling List until contact is made and a
designated person responds to the call.
17.8 Except for a letter received from Nortel alleging that
Supplier's products infringe one of Nortel's patents relating to
inverse multiplexing over ATM, which allegation Supplier
believes to be without merit, Supplier represents and warrants
that as of the Effective Date of this Agreement, the Supplier
has not received written notice of any pending lawsuits, claims,
disputes or actions that it reasonably considers significant (i)
alleging that the Products infringe or misappropriate any
Intellectual Property Rights, or (ii) adversely affecting the
Products or Supplier's ability to undertake and perform its
obligations under this Agreement. As set forth in Section 15.2,
Supplier shall indemnify Qwest against any and all losses based
on the Nortel claim.17.10 After Qwest reports a suspected
Nonconformity, Supplier shall provide a correction or work
around or repair part to restore the Product (including the
entire System) to Operative condition as soon as reasonably
possible, but in any case in conformance with the designated
repair times in the Specifications in the applicable Schedules
to this Agreement.
17.10 Any Release made available to any of Supplier's customers within
the Warranty Period for any Product that correct (***) shall be
provided to Qwest at no additional charge. Such Release shall be
in compliance with the (***) for any of the Products under this
Agreement.
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17.11 Supplier warrants that the Products: (i) will meet all
applicable standards including, but not limited to, (***); (ii)
will provide the functionality described in the Specifications;
(iii) will conform to the current environmental specifications
set forth in the (***); and (iv) will be (***).
17.12 THE EXPRESS WARRANTIES IN THIS AGREEMENT INCLUDING THE SCHEDULES
ATTACHED HERETO ARE IN LIEU OF ANY OTHER WARRANTY, WHETHER
EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE PRODUCT TO BE
SUPPLIED UNDER THIS AGREEMENT. EXCEPT AS EXPRESSLY SET FORTH
HEREIN, SUPPLIER SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NON-INFRINGEMENT OF THIRD PARTY RIGHTS AND THOSE ARISING FROM A
COURSE OF DEALING OR USAGE OF TRADE. SUPPLIER NEITHER ASSUMES
NOR AUTHORIZES ANY PERSON TO ASSUME FOR IT ANY OTHER LIABILITY.
THE WARRANTIES EXPRESSED HEREIN SHALL NOT BE (***) EXCEPT AS
SUCH PRODUCTS OR OTHER RIGHTS ARE (***) OR (***) PURSUANT TO THE
TERMS AND CONDITIONS OF THIS AGREEMENT.
18. GENERAL INDEMNITY
(***) shall indemnify and hold harmless (***) from any claim or damages
due to the personal injury or death of any individual and against any
reasonably foreseeable loss, damage, liability, cost or expense
(including attorneys' fees) (a) which may be incurred on account of any
suit, claim, judgment, demand, or threat thereof, arising out of or
caused by a willful or grossly negligent act or omission or an
intentional act of misconduct of the (***), its agents, employees or
subcontractors.
19. LIMITATION OF LIABILITY
NEITHER PARTY SHALL BE LIABLE TO THE OTHER (OR ANYONE CLAIMING UNDER OR
THROUGH THE OTHER) FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, PUNITIVE OR
EXEMPLARY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT, INCLUDING,
BUT NOT LIMITED TO, LOST PROFITS OR OTHER ECONOMIC ADVANTAGE, EVEN IF
THE PARTIES HAVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES. PROVIDED,
HOWEVER, THAT IF THE LAW OF ANY JURISDICTION APPLICABLE TO THIS
AGREEMENT DOES NOT PERMIT SUCH DAMAGES TO BE COMPLETELY DISCLAIMED, THIS
CLAUSE SHALL BE INTEREPRETED AS NECESSARY TO GIVE SUPPLIER THE
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33
FULL BENEFIT OF ANY DISCLAIMER OR LIMITATION OF SAID DAMAGES AS
PERMITTED UNDER SUCH LAW. THE FOREGOING LIMITATION SHALL NOT APPLY IN
THE EVENT OF LIABILITY ARISING FROM: (***) ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT.
20. CONFIDENTIALITY
20.1 This Agreement and all information marked as confidential and
disclosed by either Party (the "Disclosing Party") to the other
(the "Recipient"), or information of a confidential nature which
is disclosed orally and for which a written summary is provided
to the other Party within (***) of disclosure (provided that no
written summary shall be required for confidential information
of a (***) which is disclosed orally between the Parties' (***)
which such personnel should reasonably understand to be
confidential) shall be "Confidential Information". Confidential
Information constitutes a valuable asset of and is proprietary
to the Party disclosing or originally possessing it. Supplier
acknowledges that Qwest keeps its customers' records strictly
confidential. Supplier and its Representatives shall keep
strictly confidential any Qwest customer records, whether or not
they are marked as confidential. Neither Party shall willfully
disclose Confidential Information or knowingly permit its
Representatives to disclose Confidential Information to any
person other than persons, including its Representatives, having
a specific need to know in performance of the work. Each Party
shall take reasonable care to insure fulfillment of this
obligation, including instructing its Representatives not to
sell, lease, assign, transfer, use outside their scope of
employment or reveal any Confidential Information or Qwest
customer records without prior written consent of the other
Party. Recipient shall use the Disclosing Party's Confidential
Information only for purposes of exercising its rights or
fulfilling its obligations under this Agreement and shall
disclose Confidential Information only to those (***). Recipient
shall return or destroy the Confidential Information (including
all copies) when no longer needed or when requested to do so by
the Disclosing Party Each Recipient shall take (***) to insure
fulfillment of this obligation, including instructing its
Representatives not to sell, lease, assign, transfer, use
outside their scope of employment or reveal any Confidential
Information, including but not limited to customer records,
without prior written consent of the Disclosing Party.
20.2 If a subpoena or other legal process in any way concerning
Confidential Information is served upon Recipient, the Recipient
shall notify the Disclosing Party promptly, and the Recipient
shall cooperate with the
- 29 -
34
Disclosing Party, at the latter's expense, in any lawful effort
to contest the validity of such subpoena or other legal process.
20.3 Notwithstanding the foregoing, if either Party is required by
law or governmental regulation by compulsory judicial or
administrative process to make any disclosure, including but not
limited to those made in any registration statement, report or
other document filed with the U.S. Securities and Exchange
Commission or any other governmental agency, such disclosure
will not be deemed to violate the terms of this Section,
provided the Recipient promptly notifies the Disclosing Party of
such disclosure and (***) to protect the intent of the Parties
to restrict disclosure of all Confidential Information and the
terms of this Agreement, including but not limited to seeking
confidential treatment of all such information in administrative
filings. In addition, if the Recipient's efforts to seek
confidential treatment or other protective measures for such
information are not successful, such party may only make such
disclosure after (i) providing written notice of the same to the
disclosing party and (ii) (***) the Disclosing Party to take
measures to secure the confidential treatment of the
information.
20.4 Qwest may disclose the (***) to its contractors who have a need
to know for purposes of exercising rights related to this
Agreement, provided that such contractors have agreed in writing
to observe in substance the obligations of Qwest set forth in
this Section.
20.5 The obligations of confidentiality in this Section shall not
apply to any information which a Party has in its possession
when disclosed to it by the Disclosing Party, information which
a Party independently develops, information which is or becomes
known to the public other than by breach of this Agreement or
information rightfully received by a Party from a third party
without the obligation of confidentiality.
20.6 A Party shall not (***).
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35
21. TERMINATION, SURVIVAL
21.1 Bankruptcy. Either Party may terminate the Agreement if the
other Party shall: (a) file a voluntary petition under any
bankruptcy or insolvency law, or file a voluntary petition under
the reorganization or arrangement provisions of any law of any
jurisdiction, or have proceedings under any such laws instituted
against it which are not terminated within (***) of such
commencement; (b) becomes insolvent, bankrupt, or admit in
writing of its inability to pay all debts as they mature or make
a general assignment for the benefit of or enter into any
composition or arrangement with creditors; or (c) authorize,
apply for, or consent to the appointment of a receiver, trustee,
or liquidator of all or a substantial part of its assets, or has
proceedings seeking such appointment commenced against it which
are not terminated within (***) of such commencement.
21.2 Change of Control. If, during the Term of this Agreement, an
entity, person or successor acquires (***) of Qwest's voting
securities or all or substantially all of its assets whether by
merger, consolidation, reorganization or sale of assets then the
acquiring entity, person or successor shall have the right to
terminate this Agreement or a part thereof upon (***) written
notice, and Qwest shall have no further obligations under this
Agreement except for (i) payment due for any Products retained
by Qwest for which Supplier has not received payment; (ii)
payment due for any Services completed by Supplier for which
Supplier has not received payment and (iii) payment of (***) of
the difference between the (***) amount (as such amount exists
as of the date of termination) and the amount of payments
received by Supplier.
21.3 (***) of Acquired Entities. If, during the Term of this
Agreement, Qwest or any of its Affiliates acquire a controlling
interest in or substantially all the assets of an entity
("Acquired Entity") that has an agreement with Supplier for
products, services and/or software with remaining purchase
commitments, (***).
21.4 Termination for Cause. Either party may terminate or suspend
this Agreement upon (***) of this Agreement by the other after
providing written notice to the other Party (***). Upon the
breaching Party's receipt of the other Party's notice, the
breaching Party shall have (***) to cure the breach. If the
breaching Party is unable to cure such breach within such (***)
period, the other Party (***).
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36
21.5 Survival. All provisions of this Agreement which by their nature
must survive termination in order to achieve the fundamental
purposes of this Agreement shall survive any termination of this
Agreement, including but not limited to the following Sections:
2 (Scope), 9 (Payment Terms), 13 (Software), 15 (Infringement
Warranty and Indemnity), 16 (Warranty), 17 (General Indemnity),
18 (Limitation of Liability), 19 (Confidentiality), 20
(Termination, Survival), 30 (Severability) and 32 (Choice of
Law).
22. FORCE MAJEURE
22.1 Except to the extent of normal inclement weather, which shall be
built into any schedule, neither Party will be liable for any
delay or failure to perform - hereunder due to acts of God, acts
of any government, war, riot, fire, flood, accident, or embargo,
typhoon, earthquake, natural disasters, industry-wide labor
disputes, industry-wide materials shortage, or any other event
beyond the reasonable control of the party that is unable to
perform (each an event of "Force Majeure"). In the event of such
delay or failure to perform, the Party prevented from performing
its obligations under this Agreement shall inform the other
Party as soon as possible and the schedules shall be extended
for such additional period of time as is determined to be
equitable by the Parties. With respect to labor difficulties, a
Party shall not be obligated to accede to any demands being made
by employees or other personnel.
22.2 The Party prevented from performing its obligation shall inform
the other Party as soon as possible after the Force Majeure
event ends. If an event of Force Majeure last for longer than
(***) the Parties shall attempt in good faith to determine a
time frame for further performance of this Agreement through
consultation. If the Parties cannot solve the problem of further
performance within an additional (***), either Party may
terminate this Agreement without penalty.
23. ASSIGNMENT
23.1 Subject to Section 13.9, except as provided below, neither Party
shall assign any of its rights nor delegate any of its
obligations under this Agreement (***). Any prohibited
assignment or delegation shall be null and void.
23.2 Qwest may assign this Agreement without prior approval to any
company or Entity controlling, controlled by or under common
Control of Qwest or
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37
its Affiliates which assignee is (***) hereunder. In addition
and notwithstanding the foregoing, Qwest may assign this
Agreement without the approval of Supplier to any successor in
interest resulting from a merger, acquisition, reorganization or
transfer of all or substantially all of Qwest's business with or
to a successor.
24. JOINT WORK PRODUCT
The Parties, who have both been represented by legal counsel, have
jointly participated in negotiating and drafting this Agreement,
including its Schedules and any attachments. In the event an ambiguity
or question of intent or interpretation arises, this Agreement shall be
construed as if jointly drafted by the Parties and no presumption,
inference or burden of proof shall arise favoring or disfavoring a Party
by virtue of authorship of any or all of the Agreement provisions.
25. DISPUTES
25.1 The Parties shall work together and attempt to resolve by good
faith and diligent negotiation any dispute, controversy or claim
between them arising out of or relating to any contract
document, or the breach, termination or invalidity thereof (a
"Dispute"). The Parties shall work together in good faith to
informally resolve the dispute internally by escalating it as
necessary to progressively higher levels of management.
Following such internal process, if the dispute has not been
resolved within (***) after formal initiation of the dispute
process, either Party may initiate arbitration as provided for
below.
25.2 Following the procedure discussed in Section 25.1 above, binding
arbitration shall be used to resolve any Dispute. Such
arbitration shall be conducted in accordance with the then
current Commercial Arbitration Rules of the American Arbitration
Association ("AAA Rules") by (***). Within (***) of a notice of
arbitration, each Party shall appoint one arbitrator and the
arbitrators appointed shall together appoint a third. Once the
third arbitrator has officially accepted such appointment, the
arbitrators shall be deemed a panel (hereinafter, the
"Impanelment").
25.3 The Federal Arbitration Act, 9 U.S.C. Secs. 1-16 shall govern
the arbitrability of all Disputes. The arbitration proceedings
shall be English and the place of arbitration shall be (***).
The construction and interpretation of this Agreement shall be
governed by the laws of the (***) without reference to its
conflicts of law rules, or rules of statutory
- 33 -
38
arbitration. Arbitral awards under this Section 25 shall be
final and binding, and shall be enforceable in any court having
jurisdiction.
25.4 (a) Nothing in this Section will prevent any Party from applying
to any court of competent jurisdiction for preliminary or
interim relief in a judicial proceeding if such relief from a
court is necessary to preserve the status quo pending resolution
or to prevent serious and irreparable injury to that Party
pending resolution of the Dispute through arbitration, or to
compel arbitration in accordance with this Section.
(b) For purposes of this Section each Party consents to the
exclusive jurisdiction and venue of the courts of the state and
federal courts of (***).
(c) Each party shall bear its own costs and legal fees
associated with such arbitration. (***).
26. RELATIONSHIP OF THE PARTIES
26.1 The Parties are independent contractors. Nothing in this
Agreement or in the activities contemplated by the Parties
pursuant to this Agreement shall be deemed to create an agency,
partnership, employment or joint venture relationship between
the Parties. Each Party shall be deemed to be acting solely on
its own behalf and, except as expressly stated, has no authority
to pledge the credit of, or incur obligations or perform any
acts or make any statements on behalf of, the other Party.
Neither Party shall represent to any person or permit any person
to act upon the belief that it has any such authority from the
other Party. Neither Party's officers or employees, agents or
contractors shall be deemed officers, employees, agents or
contractors of the other Party for any purpose.
26.2 Supplier represents and warrants that Supplier qualifies as an
independent contractor under the provisions of the Internal
Revenue Code's common law rules enacted as part of Section 1706
of the 1986 Tax Reform Act, and as such Supplier is filing all
required forms and necessary payments appropriate to Supplier's
tax status. In the event Supplier's independent status is denied
or changed and Supplier is declared to have "common law" status
with respect to work performed for Qwest, Supplier agrees to
indemnify, defend and hold Qwest and its Affiliates harmless
from all costs, including legal fees, which Qwest may incur as a
result of such change in status.
- 34 -
39
27. AMENDMENT
No changes, amendments or modifications of any of the terms or
conditions of this Agreement shall be valid unless made by an instrument
in writing signed by both Parties. None of the terms or conditions of
this Agreement shall be modified, amended or altered by or through a
Purchase Order. Each Party shall designate by written notice to the
other Party the individual who has the authority to amend this
Agreement. Each Qwest Affiliate that becomes a party to this Agreement
agrees that any changes, amendments or modifications of any of the terms
or conditions of this Agreement approved by Qwest is binding upon such
Affiliate.
28. COMPLIANCE WITH LAWS
The Parties shall comply with all applicable federal, state and local
laws, regulations and ordinances as they relate to this Agreement and
the Software, including, but not limited to, the regulations of the
United States Government, the provisions of Executive Order 11246 (as
amended) of the President of the United States on Equal Employment
Opportunity and the rules and regulations issued pursuant thereto, which
are incorporated in this Agreement by this reference as if set forth in
full. Supplier and the Products shall comply with (***) under the terms
and conditions set forth in this Agreement.
29. CONSTRUCTION/HEADINGS
All Schedules and attachments, as supplemented and amended, to this
Agreement or to be attached to this Agreement are made a part of it as
if fully included in the text of this Agreement. References to any law,
legislative act, rule or regulation shall mean references to such law,
legislative act, rule or regulation in changed or supplemented form or
to a newly adopted law, legislative act, rule or regulation replacing a
previous law, legislative act, rule or regulation. All defined terms
used in the Agreement shall have the same meanings ascribed to them when
used in the Schedules, attachments and Purchase Orders, unless otherwise
specified therein. The terms "including" or "includes" shall always be
construed as meaning respectively "including without limitation" or
"includes without limitation". The title, captions and headings used in
this Agreement are strictly for convenience of reference only and shall
not be used in the interpretation, construction, amplification or
limitation of any of the content of this Agreement. Whenever the
singular is used herein, the same shall include the plural where
appropriate, and when the plural is used herein, the same shall include
the singular where appropriate.
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40
30. NO WAIVER
No delay, failure or waiver of either Party's exercise or partial
exercise of any right or remedy under this Agreement shall operate to
limit, impair, preclude, cancel, waive or otherwise affect such right or
remedy.
31. SEVERABILITY
If any provision of this Agreement is held invalid, illegal or
unenforceable, the validity, legality or enforceability of the remaining
provisions shall in no way be affected or impaired thereby.
32. COUNTERPARTS
This Agreement may be executed by the Parties in one or more
counterparts, and each of which when so executed shall be an original,
but all such counterparts shall constitute one and the same instrument.
33. CHOICE OF LAW
This Agreement is entered into in and shall be governed by the internal
laws and not the laws regarding conflicts of laws of the (***). The
(***) shall be (***). Each Party agrees to waive its right to a jury
trial in any action commenced hereunder.
34. REMEDIES
The remedies under this Agreement shall be cumulative and not exclusive,
and the election of one remedy shall not preclude pursuit of other
remedies generally available under the governing law.
35. IMMIGRATION REFORM AND CONTROL ACT
Supplier warrants, represents, covenants and agrees that it will not
assign to perform any efforts under this Agreement any individual who is
an unauthorized alien under the Immigration Reform and Control Act of
1986 or its implementing regulations. Supplier shall indemnify and hold
harmless Qwest, its parent, subsidiaries and affiliated companies from
and against (***). In the event any Supplier Personnel or contractor
working under this Agreement, or other individuals providing work to
Qwest on behalf of Supplier under this Agreement, are discovered to be
unauthorized aliens, Supplier will (***) remove such individuals from
performing Work and replace such individuals with individuals
- 36 -
41
who are not unauthorized aliens. Supplier shall indemnify and hold
harmless Qwest, its parent, subsidiaries and affiliated companies from
and against any and all liabilities, damages, losses, claims or expenses
(including attorneys' fees) (***).
36. IMPORT/EXPORT
Qwest hereby covenants that no commodities or technical data, including
computer software, or other technology agreed to be sold or otherwise
transferred under this Agreement will be sold, leased, delivered,
transferred or conveyed to any person in any country except in strict
compliance with all export and import laws, regulations, executive
orders or decrees of the United States Government or any agencies
thereof and the government of any other country, or any agencies
thereof, with jurisdiction over such transaction. Qwest shall, solely at
its own expense, obtain all required export and import licenses,
permits, approval, certificates and verifications before shipment of any
Products.
37. PUBLICITY
Neither Party shall, without the prior written approval of the other
Party, publicly disclose in any press release, filing, brochure or
document any information pertaining to this Agreement.
38. NOTICES
38.1 In addition to those instances identified throughout this
Agreement that require notices to particular individuals via
particular means for particular purposes, all notices, requests,
demands, or consents required or permitted hereunder, other than
routine operational communication, shall be in writing and shall
be delivered, sent by facsimile transmission or overnight
courier, or sent by certified or registered mail to the
respective Party at the addresses set forth below or at such
other address as shall have been given to the other Party in
writing for the purposes of this Section and Agreement. Such
notices and other communications shall be deemed effective upon
the earliest to occur of (i) actual delivery of confirmed
facsimile or electronic transmission; (ii) three (3) postal
delivery days after the date of mailing by certified or
registered mail, return receipt requested, postage prepaid;
(iii) one (1) business day after dispatch via an express courier
with a reliable system for tracking delivery; (iv) actual
delivery by hand.
(a) If to Supplier :
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42
Advanced Switching Communications, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
If to Qwest:
Qwest Communications Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: (***)
38.2 A Party may from time to time change its address for
notification purposes by giving the other Party prior written
notice of the new address and the date upon which it will
become effective, in accordance with the manner set forth in
this Section.
39. INSURANCE REQUIREMENTS
39.1 During the Term, Supplier and any of its subcontractors shall
maintain insurance of the kinds and in the amounts specified
below with insurers of recognized responsibility, whose policies
are valid in the states where the work is being performed.
39.2 In accordance with the above, Supplier and any subcontractors
shall maintain the following insurance coverage:
(a) Comprehensive general liability insurance.
(b) Commercial general liability insurance with a combined
single limit for bodily injury and property damage of
(***) each occurrence and General and Products Liability
aggregates of (***) each, covering all operations and/or
work performed under this Agreement.
(c) Business automobile liability insurance.
(d) Business automobile liability with a combined single
limit for bodily injury and property damage of (***)
each occurrence to include coverage for all owned,
non-owned, and hired vehicles.
(e) Worker's compensation and employers' liability
insurance.
- 38 -
43
(f) Worker's compensation insurance complying with the law
of the State or States of operation, whether or not such
coverage is required by law, and employer's liability
insurance with limits of (***) each employee and (***)
disease policy limit.
39.3 Certificates of such insurance shall be submitted to Qwest
naming Qwest as an additional insured with respect to Sections
39.2(a) and 39.2(b) prior to the start of any Work associated
with this Agreement. These certificates shall provide that there
will be no termination or non-renewal of such coverage without
thirty (30) days prior written notice to Qwest, in which case
Supplier shall still maintain insurance and which may require
certificate, and in no case where this Agreement is still in
effect.
39.4 Supplier shall require each subcontractor to provide and
maintain at all times during the term of this Agreement
insurance equivalent to that which is required of Supplier. Any
subcontractor and any subcontractors' carriers shall waive all
right to recovery against Qwest for any injuries to persons or
damage to property in the execution of Work performed under this
Agreement, exclusive of such liability resulting from Qwest's
negligence or intentional misconduct and within the limits of
any applicable laws.
39.5 Should Supplier at any time neglect or refuse to provide the
insurance required, or should such insurance be canceled or
non-renewed, Qwest shall have the right to purchase such
insurance, and the cost shall be billed to Supplier. In
addition, should Supplier at any time neglect or refuse to pay
the necessary premium, Qwest shall have the right to deduct this
amount from monies due Supplier.
40. ORDER OF PRECEDENCE
In the event of an inconsistency between the terms and conditions of the
Agreement and the Schedules attached hereto, the Agreement shall
control.
41. ENTIRE AGREEMENT
41.1 This Agreement, together with any other instrument, agreement or
document attached or referred to, which are incorporated by this
reference as though set forth in full, embodies the final, full
and exclusive statement of the agreement between Qwest and
Supplier, as it relates to the subject matter hereof. Neither
Party shall be bound by or liable to the other Party for any
representation, promise or inducement made by any agent or
person in their employ relating to subject matter which is not
embodied in this Agreement.
- 39 -
44
41.2 The terms of this Agreement shall prevail over all preprinted
forms, including Purchase Orders, software shrink wrap licenses
and invoices, as any terms and conditions on such preprinted
forms shall be null and void unless otherwise agreed to in
writing by both Parties.
* * *
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be duly
executed as of the Effective Date, such Parties acting by their officers, being
thereunto duly authorized.
Advanced Switching Communications, Inc. Qwest Communications Corporation
By: /s/ ▇▇▇▇▇ ▇. D'▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ SHAWL
----------------------------- -----------------------------
Title: Chief Financial Officer Title: Vice President Central Office Engineering
--------------------------- ---------------------------------------------
Date: October 3, 2000 Date: October 3, 2000
--------------------------- ---------------------------
- 40 -
45
NOTE: REDACTED PORTIONS HAVE BEEN MARKED WITH (***). THE REDACTED PORTIONS ARE
SUBJECT TO A REQUEST FOR CONFIDENTIAL TREATMENT THAT HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION.
SCHEDULE A
QWEST AFFILIATES
(***)
46
NOTE: REDACTED PORTIONS HAVE BEEN MARKED WITH (***). THE REDACTED PORTIONS ARE
SUBJECT TO A REQUEST FOR CONFIDENTIAL TREATMENT THAT HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION.
SCHEDULE B
(***)
47
NOTE: REDACTED PORTIONS HAVE BEEN MARKED WITH (***). THE REDACTED PORTIONS ARE
SUBJECT TO A REQUEST FOR CONFIDENTIAL TREATMENT THAT HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION.
48
NOTE: REDACTED PORTIONS HAVE BEEN MARKED WITH (***). THE REDACTED PORTIONS ARE
SUBJECT TO A REQUEST FOR CONFIDENTIAL TREATMENT THAT HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION.
SCHEDULE C
(***)
49
NOTE: REDACTED PORTIONS HAVE BEEN MARKED WITH (***). THE REDACTED PORTIONS ARE
SUBJECT TO A REQUEST FOR CONFIDENTIAL TREATMENT THAT HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION.
SCHEDULE D
(***)
50
NOTE: REDACTED PORTIONS HAVE BEEN MARKED WITH (***). THE REDACTED PORTIONS ARE
SUBJECT TO A REQUEST FOR CONFIDENTIAL TREATMENT THAT HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION.
SCHEDULE E
(***)
51
NOTE: REDACTED PORTIONS HAVE BEEN MARKED WITH (***). THE REDACTED PORTIONS ARE
SUBJECT TO A REQUEST FOR CONFIDENTIAL TREATMENT THAT HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION.
SCHEDULE F
(***)
52
NOTE: REDACTED PORTIONS HAVE BEEN MARKED WITH (***). THE REDACTED PORTIONS ARE
SUBJECT TO A REQUEST FOR CONFIDENTIAL TREATMENT THAT HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION.
SCHEDULE G
(***)
53
NOTE: REDACTED PORTIONS HAVE BEEN MARKED WITH (***). THE REDACTED PORTIONS ARE
SUBJECT TO A REQUEST FOR CONFIDENTIAL TREATMENT THAT HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION.
SCHEDULE H
THIRD PARTY ITEMS
ASC warrants and represents to Qwest Communications Corporation that Third Party
Items and Third Party Warranties do not exist under the terms of this Agreement.
54
NOTE: REDACTED PORTIONS HAVE BEEN MARKED WITH (***). THE REDACTED PORTIONS ARE
SUBJECT TO A REQUEST FOR CONFIDENTIAL TREATMENT THAT HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION.
SCHEDULE I
(***)
55
NOTE: REDACTED PORTIONS HAVE BEEN MARKED WITH (***). THE REDACTED PORTIONS ARE
SUBJECT TO A REQUEST FOR CONFIDENTIAL TREATMENT THAT HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION.
SCHEDULE J
[ADVANCED SWITCHING COMMUNICATIONS LOGO]
(***)
56
NOTE: REDACTED PORTIONS HAVE BEEN MARKED WITH (***). THE REDACTED PORTIONS ARE
SUBJECT TO A REQUEST FOR CONFIDENTIAL TREATMENT THAT HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION.
SCHEDULE K
PENDING INFRINGMENT CLAIMS
1. Nortel - Supplier received a letter from Nortel alleging that Supplier's
products infringe one of Nortel's patents relating to inverse multiplexing over
ATM. Supplier believes such allegation is without merit. Per Article 17.8 of the
Agreement, Supplier fully indemnifies Qwest of against any losses related to
such claim.
57
NOTE: REDACTED PORTIONS HAVE BEEN MARKED WITH (***). THE REDACTED PORTIONS ARE
SUBJECT TO A REQUEST FOR CONFIDENTIAL TREATMENT THAT HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION.
SCHEDULE L
MUTUAL NONDISCLOSURE AGREEMENT
This Mutual Nondisclosure Agreement ("Agreement"), is made and entered
into as of the date signed by the last person to sign, by and between ADVANCED
SWITCHING COMMUNICATIONS, INC., a corporation organized and existing under the
laws of the State of Delaware with a principal place of business at ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("ASC") and
______________________________ corporation organized and existing under the laws
of the State of ______________________ and having a principal place of business
at ___________________________________________________________________________
and all subsidiary, affiliated and associated companies ("____________"). ASC
and ____________________ are sometimes referred to hereinafter singly as "party"
and collectively as "parties".
W I T N E S S E T H
WHEREAS, the parties desire to communicate certain information which is
proprietary and/or confidential to the disclosing party; and
WHEREAS, the parties each agree to treat such proprietary information of
the other party under the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and Promises
herein set forth, the parties hereto agree as follows:
1. DISCLOSURE OF INFORMATION: The parties hereto agree to disclose and
provide to each other certain information. The parties hereto recognize
and agree that the information disclosed by either of the parties hereto
may be proprietary and/or confidential information. In the event
proprietary and/or confidential information is disclosed, it shall be
conspicuously identified as such. To the extent that oral information is
disclosed by either party, such oral information shall be deemed to be
proprietary and/or confidential if it is reduced to written or other
tangible form within fourteen (14) days of the oral disclosure and the
written or other tangible form is conspicuously identified as
proprietary and/or confidential. The parties acknowledge that such
proprietary and/or confidential information is a valuable, special, and
unique asset belonging to the party that discloses such information. The
parties agree that they shall not, during or after the term of this
Agreement, disclose any proprietary and/or confidential information of
the other party to any person, firm, corporation, association, or any
other entity for any reason or purpose whatsoever. The parties further
agree that they shall not utilize, employ, exploit or in any other
manner whatsoever use the proprietary and/or confidential information
disclosed by the other party for any purpose without the express written
consent of the disclosing party.
2. EMPLOYEES AND AGENTS: The parties agree to limit dissemination of the
other party's proprietary and/or confidential information to only those
of the receiving party's officers, directors, agents and employees who
have a bona fide need for access to said information, to maintain a list
or log of the names of their employees or agents given access to said
information, and to disclose said list or log to the other party upon
request. All persons who receive or have access to proprietary and/or
confidential information disclosed under this agreement shall have
previously executed a written agreement which, either directly or
indirectly, obligates such person to comply with the obligations and
restrictions contained in this Agreement.
3. STANDARD OF CARE: The parties agree that they shall protect the
proprietary and/or confidential information of the other party using not
less than the same standard of care that each party applies to its own
proprietary and/or confidential information.
58
NOTE: REDACTED PORTIONS HAVE BEEN MARKED WITH (***). THE REDACTED PORTIONS ARE
SUBJECT TO A REQUEST FOR CONFIDENTIAL TREATMENT THAT HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION.
4. RECORDS AND DOCUMENTS: The parties agree that all records and documents
containing proprietary and/or confidential information shall be stored
and handled in such a way as to prevent unauthorized disclosure. The
parties further agree that, upon the conclusion of the transaction
between the parties, or upon demand by either party, all documents,
records, or exhibits labeled as proprietary and/or confidential
information shall be returned to the party that disclosed such
information, without retaining any copies thereof, said documents to be
returned as soon as reasonably practicable.
5. EFFECT OF RESTRICTIVE LEGENDS: In the event any information,
documentation or devices disclosed or made available by one party to the
other contain one or more of the disclosing party's restrictive or
proprietary legends, such legends shall not impose any obligations or
restrictions upon the receiving party other than those specifically set
forth in this Agreement.
6. PATENTS, COPYRIGHTS, AND TRADEMARKS: Nothing contained in this Agreement
shall be construed as granting or conferring, by implication, estoppel
or otherwise, any license or rights under any patent, trademark,
copyright, trade secret or other proprietary right (whether present or
future), and no such license or other rights shall arise from this
Agreement or from any acts, statements or dealings resulting from or
related to the execution of this Agreement or the performance of the
obligations of the parties hereunder.
7. EXCLUSIONS: The provision of this Agreement shall not apply to data or
information in the public domain at the time it was disclosed, or that
can be demonstrated to have been known to the party receiving it at the
time of disclosure, or that becomes known to the receiving party
independently of the disclosing party without breach of this Agreement.
If, at the time of the disclosure of confidential and/or proprietary
information hereunder, the party receiving the information has
previously known the information, or if, thereafter, the information
disclosed becomes known to the receiving party independently of the
disclosing party, then the receiving party shall promptly notify the
disclosing party that the information has previously been known or has
become known to the receiving party. If any proprietary and/or
confidential information is ordered produced or disclosed pursuant to
subpoena or court order, the receiving party shall first give the
disclosing party prompt notice of such request so that the disclosing
party has an opportunity to defend, limit or protect against such
production or disclosure.
8. PREVENTION OF DISCLOSURE: Upon discovery that proprietary information
has been or may be disclosed, the parties agree to take such action as
may be necessary and proper to prevent the threatened or continued
disclosure of proprietary information and to pursue such other and
further legal and/or equitable remedies as may be available.
9. REPRESENTATIONS: Each party represents and warrants to the other that it
is a corporation duly organized and validly existing in the state
indicated in this Agreement and is or will become duly qualified and in
good standing as a foreign corporation under the laws of all states in
which it is required to be qualified. Further, each party represents
that it has full corporate power and authority to enter into this
Agreement and to do all things necessary for the performance of this
Agreement.
10. WAIVER OF BREACH: Any waiver by either party hereto of a breach of any
of the provisions of this Agreement by the other party shall not operate
or be construed as a waiver by either party of any rights or privileges
of either party hereunder or of any subsequent breach.
11. CONTROLLING LAW: This Agreement shall be construed, interpreted, and
administered in accordance with the laws of the Commonwealth of
Virginia.
12. SEVERABILITY: If for any reason any provision of this Agreement shall be
declared void or invalid, such declaration shall not affect the validity
of the remainder of this Agreement which shall remain in full force and
effect as if executed with the void or invalid provision eliminated.
Page 2 of 3
59
NOTE: REDACTED PORTIONS HAVE BEEN MARKED WITH (***). THE REDACTED PORTIONS ARE
SUBJECT TO A REQUEST FOR CONFIDENTIAL TREATMENT THAT HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION.
13. COUNTERPARTS: This Agreement may be executed and/or conformed in any
number of counterparts, each of which shall be deemed an original.
14. BINDING EFFECT: This Agreement shall be binding upon, and shall inure to
the benefit of each of the parties hereto and their successors in
interest.
15. ASSIGNMENT: This Agreement, and the rights and obligations hereby
created, may not be assigned by either of the parties hereto without the
express written consent of the other party hereto, said consent not to
be unreasonably withheld.
16. ATTORNEY'S FEES: In the event that either party hereto breaches any of
the terms and conditions of this Agreement then, in addition to such
remedies or damages as may be recoverable, whether at law or in equity,
the non-breaching party shall be entitled to recover all costs, expenses
and attorney's fees actually incurred in enforcing the terms and
conditions of this Agreement.
17. MERGER: This Agreement contains the sole, complete and entire agreement
and understanding of the parties concerning the matters contained
herein. No statements, promises or representations have been made by any
party to the other, or are relied upon, and no consideration has been or
is offered, promised, expected or held out, other than as stated in this
Agreement. The parties hereto represent that, in entering into this
Agreement, they have not relied upon any representations other than
those expressly set forth herein. No conditions precedent to the
effectiveness of this Agreement exist, other than as may be expressly
provided herein. There are no oral or written collateral agreements. All
prior discussion and negotiations have been, and are, merged and
integrated into, and superseded by, this Agreement.
IN WITNESS WHEREOF, the duly authorized representatives of the parties
have caused this Agreement to be executed and effective as of the dates
indicated below.
ADVANCED SWITCHING COMMUNICATIONS, INC.,
--------------------------------------------
a Delaware corporation. a corporation.
----------------------------------------------------- ------------------------
BY: BY:
--------------------------------------------------- -----------------------------------------
(Signature) (Signature)
Name Name
(Printed): (Printed):
--------------------------------------------- ----------------------------------
Title: Title:
--------------------------------------------- ---------------------------------------
Date: Date:
--------------------------------------------- ----------------------------------------
Page 3 of 3
60
NOTE: REDACTED PORTIONS HAVE BEEN MARKED WITH (***). THE REDACTED PORTIONS ARE
SUBJECT TO A REQUEST FOR CONFIDENTIAL TREATMENT THAT HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION.
SCHEDULE M
ASC PRODUCT SPECIFICATIONS
A-1240 SPECIFICATIONS
A-1240 NETWORK INTERFACES
24 DSX-1 Ports
- Connector: 100-pin female SCSI, rear panel
- Pigtail cable included: SCSI to dual 50 pin Amphenol female
- ATM speed: clear channel at full T1
- FR speed: full/fractional (Nx64) T1
- Frame formats: SF (D4) or ESF
- Line code: B8ZS or AMI
1 DS-3 Port option for single-slot chassis
- Connector: dual BNC, 75(OMEGA), rear panel
- Frame formats: C-bit or M23
- Line code: B3ZS
A-1240E NETWORK INTERFACES
24 E1 Ports
- Connector: 100-pin female SCSI, rear panel
- Pigtail cable (SCSI to dual 50 pin telco female) included
- ATM speed: clear channel at full ▇▇
- ▇▇ speed: full/fractional (Nx64) E1
- Frame formats per ITU-T G.704:
E1-CRC CAS enabled
E1-CRC CAS disabled
E1-CAS disabled
E1-CAS enabled
- Line code: HDB3 or AMI
1 E3 Port option for single-slot chassis
- Connector: dual BNC 75(OMEGA) rear panel
- Speed: clear channel at full E3
- Frame formats:
ITU-T G.832 ADM mapping
ITU-T G.751 ADM mapping
ITU-T G.751 PLCP mapping
- Line code: HDB3
ETHERNET/VLAN INTERFACE (ORDERABLE OPTION - BOTH MODELS)
- IEEE 802.1Q virtual bridged local area network
- VLAN-to-PVC mapping
- Access ▇▇▇ ▇▇/▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
PROTOCOL SUPPORT
ATM
- ATM UNI 3.0, 3.1, 4.0
- Virtual UNI on network-side port
- ILMI
- Connections: VPCC, PVCC, PVPC
- Class of service categories:
CBR, nrtVBR, rtVBR, and UBR
Per VC Queuing
14 assignable priorities plus two default priorities
- Informational CAC
- Traffic policing: single and dual leaky bucket
- Congestion control: AAL5 autodetect with EPD and PPD procedures
- Cell payload scrambling options
- F4 and F5 OAM Support
IMA(Orderable Option)
- ATM Forum inverse multiplexing over ATM (IMA) 1.0, 1.1
- Up to 12 groups, up to eight circuits per group
Frame Relay (Orderable Option)
- UNI (FRF.1.1 and FRF.4)
- NNI (FRF.2.1 and FRF 10)
- LMI/Annex A, Annex D, gang of four
- CIR policing, FECN/BECN
- Per VC queuing
- 14 assignable priorities plus one default
Multilink Frame Relay (MFR)
- Frame Relay Forum multilink frame relay (MFR) FRF.16
- MFR available for access or network connections
ATM-to-Frame Relay Interworking
- Network interworking FRF.5
- Service interworking FRF.8 -- transparent mode & translation mode
- ILMI/LMI interworking
- EFCI-to-FECN/BECN mapping
- CLP-to-DE mapping
TDM (circuit emulation) (Orderable Option)
- Non-structured CES for clear channel T1/E1
- Structured CES for Nx64 fractional T1/E1
- Channel associated signaling (CAS)
- Point to multi-point support
- AF-vtoa-0078.000
- AF-vtoa-0085.000
- ITU-T Rec I.363 B-ISDN ADM adaptation layer (AAL) specification
MANAGEMENT & USER INTERFACE
- HTTP manager for standard Web-browser access
- Full SNMP v1 agent includes traps for dynamic alarming
- ASCII configuration file upload/download via FTP over ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ port or in-band
- CLI manager via Telnet over ▇▇/▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or craft port (front panel
DB-9 female connector) or in-band
- Extensive physical layer and network protocol statistics
- Detailed status per port and per connection
- Field upgradeable FLASH file system holds dual code loads and configurations;
upload and download by FTP
TIMING SOURCES
- Internal timing: free-running stratum level 3
- External timing: BITS A and B primary reference source via wire wrap pins
- Line timing: from any T1/E1 or T3/E3 interface
- User-definable timing hierarchy
ALARMS, VISUAL DIAGNOSTICS
- Event and alarm log with timestamps in NVRAM
- Physical port and VC statistics collection in NVRAM
- Critical, major and minor alarm contact closures with front panel LEDs and
alarm cut off
- Front panel LEDs for power, timing, fan fail, each T1/E1 and T3/E3 port.
- Line status LED for each T1/E1
- Alarms: RDI, LOS, LOF, OOF, AIS
- ▇▇▇▇ line testing on any access or network port
CERTIFICATIONS
- Safety: UL 1950, EN 60950/IEC950, CSA 22.2 950
- Emissions: EN 55022/CISPR 22, FCC Part 15 Class A
- Immunity: EN 61000
- NEBS Level 3: GR-1089, GR-63
- CE approved
ENVIRONMENTAL
- Size: 1.75" (1U) H x 19"W x 18"D
- Rackmountable, center or flush mount.
- Operating temp: 0(degrees) to 40(degrees) C, short term
-5(degrees) to 50(degrees) C
- Temperature storage: -40(degrees) to 70(degrees)C
- Humidity: 5% to 80% (relative, non condensing)
- Weight: 9 lbs.
- Dual voltage input feeds: -48 VDC @ 1.7A
- Optional external AC power supply
- Typical DC power: under 50 ▇▇▇▇▇, 168 BTU
- Max DC power: 85 ▇▇▇▇▇, 286 BTU
- Cooling: field serviceable air filter and fan tray with redundant fans
ORDERING INFORMATION
Base System:
Available in T1 and E1 versions
24 T1 or E1 ports, ATM support
Pigtail cable, SCSI to dual 50 pin telco female
Rackmountable chassis
Orderable options:
T3 or E3 port
Frame relay support
MFR software
IMA software
ATM-to-frame relay interworking
Ethernet VLAN support
CES support
External AC power supply
CONTACT INFO
Advanced Switching Communications
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇., ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Tel (▇▇▇) ▇▇▇-▇▇▇▇ Fax (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇.▇▇▇.▇▇▇
All contents (C) ASC, Inc. and subject to change.1/00
61
NOTE: REDACTED PORTIONS HAVE BEEN MARKED WITH (***). THE REDACTED PORTIONS ARE
SUBJECT TO A REQUEST FOR CONFIDENTIAL TREATMENT THAT HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION.
A-2000 SPECIFICATIONS A-2000 NETWORK INTERFACES
4 DSX-3 Ports
- Connector: dual BNC 75(OMEGA) rear panel
- Speed: clear channel at full DS-3
- Frame formats: C-bit parity or M23
- Line code: B3ZS
1 OC-3c Port Option for single-slot chassis
- Connector: dual SC duplex female, front panel
- Single-mode or multi-mode order option
- Frame format: I.432/G.709 SONET
A-2000E NETWORK INTERFACES
4 E3 Ports
- Connector: dual BNC 75(OMEGA) rear panel
- Speed: clear channel at full DS-3
- Frame formats:
ITU-T G.832 ADM mapping
ITU-T G.751 ADM mapping
ITU-T G.751 PLCP mapping
- Line Code: HDB3
1 OC-3c port option for single-slot chassis
- Connector: dual SC duplex female, front panel
- Single-mode or multi-mode order option
- Frame format: I.432/G.709 SDH STM-1
PROTOCOL SUPPORT
ATM
- ATM UNI 3.0, 3.1, 4.0
- Virtual UNI on network-side port
- ILMI
- Connections: VPCC, PVCC, PVPC
- Class of service categories:
CBR, nrtVBR, rtVBR, and UBR
Per VC queuing
14 assignable priorities plus one default priority
- Informational CAC
- Traffic policing: single and dual leaky bucket options
- Congestion control: AAL5 autodetect with EPD and PPD procedures
Frame Relay DS-3/E3 Ports Only
- 2 Byte DLCI
- UNI (FRF.1& FRF.4)
- NNI (FRF.2 & FRF.10)
- FR/ATM service interworking - FRF.8
- FR/ATM network interworking - FRF.5
- LMI/annex A, annex D
- CIR policing, FECN/BECN
- Per VC queuing
- 15 assignable priorities including one default
DS-3 RFC 2496
- Extensive physical layer and network protocol statistics
- Per-port and per-connections detailed status with user-configurable
polling
ALARMS & VISUAL DIAGNOSTICS
- Event and alarm log in NVRAM
- Physical port and VC statistics collection in NVRAM
62
NOTE: REDACTED PORTIONS HAVE BEEN MARKED WITH (***). THE REDACTED PORTIONS ARE
SUBJECT TO A REQUEST FOR CONFIDENTIAL TREATMENT THAT HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION.
- Critical, major and minor alarms contact closures with front panel LEDs and
alarm cut off
- Front panel LEDs for power, timing, fan fail and OC-3c mux port.
- Line status LED for each DS-3
- Loopbacks: local and remote
- Alarms: RDI, AIS, LOS, LOF, OOF
CERTIFICATIONS
- Safety: UL 1950, EN 60950/IEC950, CSA 950
- Emissions: EN 55022/CISPR 22
- Immunity: EN 61000
- NEBS level 3: GR-1089, GR-63
- CE approved
ENVIRONMENTAL
- Size: 1.75"(1U) H x 19" W x 18"D
- Rackmountable center or flush mount
- Operating temp: 0(degrees) to 40(degrees) C, short
term -5(degrees) to 50(degrees) C
- Temperature storage: -40(degrees) to 70(degrees)C
- Humidity: 5% to 80% (relative, non condensing)
- Weight: 9 lbs.
- Dual voltage input feeds: -48 VDC @ 1.7A, via 2 euro block connectors
- Typical DC power: under 50 ▇▇▇▇▇, 168 BTU
- Max DC power: 85 ▇▇▇▇▇, 286 BTU
- Cooling: field serviceable air filter and fan tray with redundant fans
A-2000 NETWORK INTERFACES
4 DSX-3 Ports
- Connector: dual BNC 75(OMEGA) rear panel
- Speed: clear channel at full DS-3
- Frame formats: C-bit parity or M23
- Line code: B3ZS
1 OC-3c Port Option for single-slot chassis
- Connector: dual SC duplex female, front panel
- Single-mode or multi-mode order option
- Frame format: I.432/G.709 SONET
A-2000E NETWORK INTERFACES
4 E3 Ports
- Connector: dual BNC 75(OMEGA) rear panel
- Speed: clear channel at full DS-3
- Frame formats:
ITU-T G.832 ADM mapping
ITU-T G.751 ADM mapping
ITU-T G.751 PLCP mapping
- Line Code: HDB3
1 OC-3c port option for single-slot chassis
- Connector: dual SC duplex female, front panel
- Single-mode or multi-mode order option
- Frame format: I.432/G.709 SDH STM-1
PROTOCOL SUPPORT
ATM
- ATM UNI 3.0, 3.1, 4.0
63
[ASC LOGO] A-4000
SCHEDULE M
- Virtual UNI on network-side port
- ILMI
- Connections: VPCC, PVCC, PVPC
- Class of service categories:
CBR, nrtVBR, rtVBR, and UBR
Per VC queuing
14 assignable priorities plus one default priority
- Informational CAC
- Traffic policing: single and dual leaky bucket options
- Congestion control: AAL5 autodetect with EPD and PPD procedures
Frame Relay DS-3/E3 Ports Only
- 2 Byte DLCI
- UNI (FRF.1& FRF.4)
- NNI (FRF.2 & FRF.10)
- FR/ATM service interworking - FRF.8
- FR/ATM network interworking - FRF.5
- LMI/annex A, annex D
- CIR policing, FECN/BECN
- Per VC queuing
- 15 assignable priorities including one default
MANAGEMENT & USER INTERFACE
- HTTP manager for standard Web-browser access
- Full SNMP v1 agent includes traps for dynamic alarming
- FLASH memory-based file system holds dual code loads and configurations
- ASCII configuration file upload/download via FTP over 10BaseT or in-band
- Command line interface via telnet over 10BaseT or via front-panel craft
port (DB-9 female connector) or via in-band
- MIB support includes:
MIB II support with extensions
Enterprise MIB
MIB II ▇▇▇ ▇▇▇▇
ATM MIB ▇▇▇ ▇▇▇▇
OC-3c SONET RFC 2558
DS-3 RFC 2496
- Extensive physical layer and network protocol statistics
- Per-port and per-connections detailed status with user-configurable polling
TIMING SOURCES
- Internal: stratum level 3
- External: BITS A and B primary Reference source via wire wrap pins
- Line: DSX-3 or OC-3c interface
- User-definable timing hierarchy
ALARMS & VISUAL DIAGNOSTICS
- Event and alarm log in NVRAM
- Physical port and VC statistics collection in NVRAM
- Critical, major and minor alarms contact closures with front panel LEDs
and alarm cut off
- Front panel LEDs for power, timing, fan fail and OC-3c mux port.
- Line status LED for each DS-3
- Loopbacks: local and remote
- Alarms: RDI, AIS, LOS, LOF, OOF
CERTIFICATIONS
- Safety: UL 1950, EN 60950/IEC950, CSA 950
- Emissions: EN 55022/CISPR 22
- Immunity: EN 61000
- NEBS level 3: GR-1089, GR-63
- CE approved
ENVIRONMENTAL
- Size: 1.75"(1U) H x 19" W x 18"D
- Rackmountable center or flush mount
64
[ASC LOGO] A-4000
SCHEDULE M
- Operating temp: 0(degrees) to 40(degrees) C, short
term -5(degrees) to 50(degrees) C
- Temperature storage: -40(degrees) to 70(degrees)C
- Humidity: 5% to 80% (relative, non condensing)
- Weight: 9 lbs.
A-4000 CONNECTIONS CAPABILITY SUMMARY
------------------------------------------------------------------------------------
AVAILABLE CARD PORTS PROTOCOLS
=========================================================================================================================
14 ACCESS SLOTS A-1000 12 T1/E1 ATM, IMA, FR, MFR
------------------------------------------------------------------------------------------
A-1240 24 T1/E1 ATM, IMA, FR, MFR, TDM
------------------------------------------------------------------------------------------
A-2000 4 T3/E3 ATM, FR
=========================================================================================================================
4 NETWORK SLOTS A-2000 4 T3/E3 ATM
------------------------------------------------------------------------------------------
1 OC-3c*
A-5010 1 STM-1 ATM
-------------------------------------------------------------------------------------------------------------------------
*Multi mode/short haul or single
mode/Intermediate reach options
SPECIFICATIONS
65
SCHEDULE M
ACCESS-PORTS MODULES
A-1000 AND A-1000E
- 12 DSX-1/E1 ports individually configurable for ATM, inverse multiplexing
over ATM (IMA), frame relay, multilink frame relay (MFR)
- 50-pin female telco connector
- Speed: clear channel at full T1 rates or Nx64 fractional rates
- Frame formats T1 model: SF (D4) or ESF
E1 model: ITU-T G.704
- Line codes T1 model: B8ZS, AMI
E1 model: HDB3, AMI
A-1240 AND A-1240E
- 24 DSX-1/E1 ports individually configurable for ATM, IMA, frame relay, MFR
or TDM (CES)
- 100 Pin SCSI, pigtail to two 50-pin female Telco connectors.
- Speed: clear channel at full T1 rates or Nx64 fractional rates
- Frame formats T1 model: SF (D4) or ESF
E1 model: CCITT, G.704
- Line codes T1 model: B8ZS, AMI
E1 model: HDB3, AMI
A-2000 AND A-2000E
- 4 T3/E3 ATM, frame relay
- Dual BNC, 75(OMEGA) connector
- Speed: clear channel
- Frame formats
T3 model: C-bit parity, ▇▇▇
▇▇ model: ITU-T G.832 ADM mapping
ITU-T G.751 ADM mapping
ITU-T G.751 PLCP mapping
- Line code T3 model: B3ZS
E3 model: HDB3
NETWORK-PORTS MODULE
A-2000 AND A-2000E (SEE ABOVE)
A-5010 MODULE
- One ATM OC-3c/STM-1 port
- Multi mode/short haul or single mode/intermediate reach options
- Connector: DIN 47256 on front panel
- Frame format: I.432/G.709 SONET or STM-1, software configurable
Refer to data sheets for these ASC products for more information
66
SCHEDULE M
HIGH AVAILABILITY
- All cards are hot swappable
- Fault resilient backplane
- Redundant timing
- Redundant network management
- Redundant BITS interfaces
- Redundant CO alarm contact closures
- Redundant, hot swappable fan trays
- Dual DC feeds
- AC version with load sharing/redundant AD/DC rectifiers
MANAGEMENT & USER INTERFACE
- Ethernet management interface
- Embedded HTTP server supports management from standard Web browser
- Full-featured command line interface via front panel DB-9 female connector
craft port or inband ▇▇▇ ▇▇▇▇ connection
- Upload/download ASCII configuration files via FTP over Ethernet or inband
- SNMP agent includes traps defined for dynamic alarming
TIMING
- Internal stratum level 3
- Timing modes: free run, external BITS, line (access or mux), or loop
CERTIFICATIONS
- Safety: ▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇/▇▇▇▇▇▇, ▇▇▇ 22.2 950, CE
- Emissions: EN 55022/CISPR 22, FCC Part 15 class A, CE
- Immunity: EN 61000, CE
- NEBS level 3: ▇▇-▇▇▇▇, ▇▇-▇▇
ENVIRONMENTAL
- Size: 24.5"(14U) H x 17.5" W x 20"D
- Rackmountable center or flush mount
- Operating temperature: 5(degree) to 40(degree) C
- Temperature short term: -5(degree) to 50(degree) C
- Temperature storage: -40(degree) to 70(degree)C
[ASC LOGO]
67
SCHEDULE M
- Humidity: 5% to 80% (relative, non condensing)
- Altitude: -197 to 10,000 ft
- Weight: 103 lbs. fully loaded
- Dual voltage input feeds: -48 VDC @ 20 amps fully loaded
- Optional AC power converter
- Max. power consumption: DC dissipation 1000 ▇▇▇▇▇
- Cooling: field-serviceable air filter and dual fan trays
CONTACT
Advanced Switching Communications
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Tel (▇▇▇) ▇▇▇-▇▇▇▇ Fax (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇.▇▇▇.▇▇▇
All contents (C) ASC, Inc. and subject to change. 1/00
[PHOTO]