Exhibit 10.10
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
Purchase and License Agreement Between
Convergent Networks, Inc.
And
Global NAPs
This agreement (the "Agreement") is effective May 1, 2000 between Convergent
Networks, Inc. ("Convergent"), a Delaware corporation having its principal place
of business at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and Global NAPs
("Global") a Delaware corporation having a principal place of business at ▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
Convergent sells and licenses various hardware and software products
(individually, "Hardware Products" and "Software Products" and collectively the
"Products") and provides Installation, Training, Hardware Service, Software
Maintenance and Professional Services (collectively "Support Services").
Convergent and Global are committed to a long-term, strategic partnership. As
part of this partnership, Convergent will make available its technical personnel
and technologies in order to provide Global with leading-edge products. Global
will provide Convergent access to Global's technical personnel, network
facilities and customers for the purpose of testing and evaluation of new
technologies and features.
.
Global, its parent, subsidiaries, affiliates, or assignee which is substantially
owned by ▇▇▇▇▇ ▇. ▇▇▇▇▇ (hereinafter referred to collectively as "Customer"),
desires to purchase and license Products from Convergent during the term of this
Agreement for its internal use only. Therefore, in consideration of their
mutual obligations contained in this Agreement, the parties agree as follows:
1. TERM AND COMMITMENT
This Agreement shall become effective as of the date written above and shall
continue for a period of three years, after which it shall renew automatically
for successive 12 month additional terms, unless otherwise terminated pursuant
to the terms hereof. Global agrees to purchase all of its next generation
broadband media gateways and related switches, softswitches and its service
creation environment exclusively from Convergent for the Term of this Agreement
and any renewals thereof.
2. PURCHASE
2.1 Terms and Conditions. During the term of this Agreement, and upon the
terms and conditions set forth herein, Convergent shall sell to the Customer,
and the Customer may from time to time purchase from Convergent, Products and
Support Services at prices listed in Convergent's then-current price list (the
"US Price List") applicable to each such Product or Support Services, as
amended from time to time, less any applicable discounts.
2.2 PURCHASE ORDERS. Shipments of the Products fulfillment of Support Services
shall be made only against written purchase orders issued by Customer, a
sample of
1
which is included as Exhibit A. At a minimum, each purchase order shall
specify the following items:
A.) PRODUCT LIST. A complete list of the Products and Support Services covered
by the purchase order, specifying the quantity, product code and
description of each;
B.) PRICE. The price of each Product and Support Service as set forth on the
attached US Price List and subject to the terms of Section 6, below, and
any additional discounts, charges and costs;
C.) ADDRESSES. The billing address and destination to which the Products will
be delivered or location where Support Services will be performed;
D.) DELIVERY DATE. The delivery date requested by the Customer;
E.) SIGNATURE. The signature of a Customer employee or agent who possesses the
authority to place such an order.
F.) CUSTOMER ORDER NUMBER. The Customer order number must be included to
ensure proper billing.
Convergent shall not be obligated to accept any order in which the Customer
fails to include the items in a.) through f.) above.
2.3 ORDER ACKNOWLEDGEMENT. Convergent shall acknowledge Customer's purchase
orders in writing within five business days after receipt. Convergent's
acknowledgment shall note any exceptions regarding matters such as the
items ordered, configuration, and Product or Support Services pricing.
Convergent shall also confirm the requested delivery date or offer an
alternative delivery date. In no event shall any order be binding on
Convergent until the Customer's order and Convergent's acknowledgment are
in agreement as to the items ordered, configuration, pricing, delivery
dates, and all other material terms.
2.4 WRITTEN COMMUNICATION. No purchase order, acknowledgment form, or other
ordering document or communication from either party shall vary the terms
and conditions on this Agreement unless both parties expressly agree in
writing. In the event of any conflict between the terms and conditions of
this Agreement and those of any purchase order acknowledgment form or
other ordering document or communication, the terms and conditions of this
Agreement shall prevail.
3. DELIVERY
3.1 Shipping Practice. All deliveries of the Products purchased pursuant to
this Agreement will be made FOB Convergent's facility. All Products will
be packaged for shipment in accordance with standard industry practices.
All transportation, shipping, and insurance costs shall be shipped in
accordance with the Customer's instructions and shall be charged to the
Customer. If the Customer does not notify Convergent of a preferred
freight forwarder, Convergent shall select a freight forwarder to be used
for shipment of the Products to the Customer. Risk of loss shall pass to
the Customer at the point of delivery to the common carrier at
Convergent's facility. However in the event of any shipping damage,
Convergent shall be responsible for placing and administering any claims
with the freight forwarder or carrier regarding any damages incurred
during shipping.
3.2 TITLE. Title (excluding title to Software Products) shall pass to the
Customer at the point of delivery to the common carrier at Convergent's
facility.
2
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
Convergent retains and Customer grants Convergent a purchase money
security interest in each of the Products until paid in full.
3.3 SHIPMENT DATE. Convergent shall use reasonable efforts to ship the
Products on the shipment date requested in the Customer's purchase order.
Convergent shall not be liable for any loss, expense or damage incurred by
the Customer if Convergent fails to meet the specified delivery date.
Convergent reserves the right to allocate shipment of Products among its
purchasers and to make partial shipments. Notwithstanding the foregoing,
partial shipments shall only be made with previous written approval from
the Customer.
3.4 EXPORT. All shipments with destinations outside of the US shall be subject
to Convergent's determination that such shipments are in compliance with
all applicable export and import regulations. Customer agrees not to
indirectly export Products after they have left Convergent's premises
without Convergent's approval. For all shipments (both direct and
indirect) other than within the US, Customer will be solely responsible
for (i) obtaining any license that may be required to export the Products
to the country requested (ii) clearing the Products through local customs
upon their arrival and (iii) paying all customs duties, taxes and other
charges assessed on such imported goods in such country.
3.5 PROVISION OF SUPPORT SERVICES. In the case of Support Services, Convergent
shall use reasonable efforts to provide Support Services on the date
required to meet the service level documented in the Support Services
description purchased by the Customer.
4. RESCHEDULING AND CANCELLATION OF ORDERS
4.1 Product Rescheduling. Upon written notice to Convergent provided at least
[**] days' prior to the scheduled ship date, the Customer may reschedule
the delivery of any Products scheduled for shipment by up to [**] days at
no charge. Acceptance of the Customer's request to reschedule any delivery
with less than [**] days' prior written notice to Convergent shall be at
the sole discretion of Convergent.
5. PRICES
5.1 Price List. During the term of this Agreement, the Customer shall be
entitled to purchase the Products and Support Services at the prices set
forth in Convergent's US Price List, an example of which is attached
hereto as Exhibit B, applicable to each particular Product, less a [**]%
discount on Convergent manufactured Hardware and set forth in the purchase
order and accepted in writing by Convergent. All prices set forth in
Convergent's US Price List are exclusive of any applicable value added,
excise, sales, use or consumption taxes, customs duties or other
governmental charges.
5.2 PRICE INCREASE/DECREASE. In the event of a Convergent price increase, all
Products and Support Services ordered on or after the effective date of
such price increase shall be filled at the new higher price. Convergent
will provide the Customer with written notice of any price increase 30
days prior to the effective date of such price increase. Convergent shall,
however, honor all written and accepted Customer purchase orders for the
Products and Support Services received by Convergent prior to the
announcement of the price increase at the
3
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
prices in effect as of the date the order was received, but only if the
Customer requests Convergent to ship the Products or provide Support
Services within 30 days after the effective date of the price increase. In
the event of a change of control of Convergent, as defined by the sale of
all or substantially all of Convergent's assets or stock, Global will
maintain its then-current pricing for a period of three years. Any price
decreases will be effective immediately.
5.3 [**]. During the term of this Agreement, Convergent will provide [**]
those [**] to any [**] for the [**]. In the event that Convergent [**],
Convergent will [**] after that date.
6. PAYMENT
6.1 Product Payment Terms. Convergent shall invoice the Customer upon shipment
of the Products. The Customer shall pay all invoices in US dollars within
30 days of receipt. All such invoices will be payable by check or wire
transfer, in United States dollars, as indicated on the invoice. In the
event that the Customer fails to make any payment when due, Convergent may
withhold further shipments until such time as the past-due payment is
made, and may require that subsequent orders be paid in full prior to
shipment.
6.2 SERVICE PAYMENT TERMS. Convergent shall invoice the Customer one year in
advance for a Hardware Products Services contract. For Hardware Service
performed on a time and materials basis, the Customer will be billed after
the service is performed. For a Software Products Maintenance contract,
the Customer will be billed one year in advance. Installation and Training
Services will be billed after completion. All such invoices will be
payable by check or wire transfer, in United States dollars, as indicated
on the invoice. In the event that the Customer fails to make any payment
when due, Convergent may withhold further Support Services until such time
as the past-due payment is made, and may require that subsequent orders be
paid in full prior to provision of Support Services.
6.3 TAXES AND OTHER LEVIES. The Customer shall pay all municipal, state,
county or federal taxes including, but not limited to, sales, use, excise,
value added or other taxes which may be levied upon the sale, license or
transfer, ownership or installation of the Products except for any taxes
imposed upon the income of Convergent.
7. CHANGES / AVAILABILITY OF PRODUCTS AND SUPPORT SERVICES
7.1 Discontinuation of Hardware. Convergent shall promptly inform the Customer
as soon as is reasonably practicable after Convergent schedules
discontinuance of any Product or Support Services on its US Price List.
Convergent, in its sole discretion, may modify its US Price List at any
time. Convergent agrees to offer maintenance and support for any
discontinued Hardware Product for a period of [**] months from the last
date of shipment of the discontinued product. Convergent also agrees to
offer to the Customer a one-time buy-out of spare parts for any
discontinued Hardware Product for a period of [**] days following the
announcement of any discontinuance, subject to component availability.
4
7.2 SOFTWARE UPGRADES. Convergent shall promptly notify the Customer of
Software Product upgrades. Convergent will continue to offer maintenance
on its Software Products for its current major release and the release
immediately prior to its current release. Convergent shall provide
software upgrades to software purchase by Customer which contain fixes to
product abnormalities during the life of the product at no charge.
7.3 PRODUCT CHANGES. At any time prior to delivery, Convergent may make
changes in the Products in whole or in part to be supplied to the Customer
hereunder to include electrical or mechanical design refinements that
Convergent deems appropriate, or as required by law or concerns of safety,
without obligation to modify or change any Product previously delivered or
to supply Products in accordance with earlier specifications.
8. SOFTWARE LICENSE AGREEMENT
This software license ("Software License") shall govern the licensing of all
software, accompanying user manuals, on-line help services, Convergent web site
and other instructions (collectively "the Software") provided to the Customer by
Convergent. The Software provided under this Software License is proprietary to
Convergent and to the third parties from which Convergent has acquired license
rights. Convergent will not grant a Software License whatsoever, either
explicitly or implicitly, except by acceptance of an order for Convergent
Products. Each Software License is subject to the following restrictions.
8.1 TITLE. Title of the Software does not pass to the Customer. Subject only
to the Software License specifically granted herein and agreements with
third parties from which Convergent has acquired license rights,
Convergent is the sole owner of all rights, title and interest, including
all copyrights, patents, trademarks, industrial designs, trade names,
trade secrets and other intellectual property rights in the Software
Products.
8.2 NONEXCLUSIVE LICENSE. Subject to the provisions of this Section,
Convergent grants to the Customer a nonexclusive, non-transferable license
to use the object code form of the Software Products solely for the
Customer's internal business purposes, including, without limitation, in
conjunction with the Customer's provision of services to its customers.
Use of the Software shall be limited to use on Convergent Products.
8.3 REPRODUCTION OF SOFTWARE. The Software Products are copyrighted and the
Customer is only authorized to reproduce one copy of the Software Products
solely for back-up purposes. The Customer is hereby prohibited from
otherwise copying, reverse engineering, decompiling or disassembling the
Software Products or incorporating in whole or any part in any other
product or creating derivative works based on all or any part of the
Software Products. The Customer is not authorized to license others to
reproduce any copies of the Software Products, except as expressly
provided in this Agreement.
5
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
8.4 COPYRIGHT NOTICES. The Customer agrees to ensure that all copyright,
trademark and other proprietary notices within or affixed to the Software
Products will not be removed or modified.
8.5 NON-TRANSFERABILITY OF RIGHTS. The rights and licenses granted to the
Customer with respect to any Software Product furnished by Convergent may
not be sold, licensed, sublicensed, rented, assigned or otherwise
transferred to another party without the prior written consent of
Convergent, except in the event that the Customer sells all or
substantially all of its stock or assets to a third party.
8.6 THIRD PARTY SOFTWARE. Third party owners from which Convergent has
acquired license rights to software that is incorporated into Convergent
Products shall have the right to enforce the provisions of this license
against the Customer.
8.7 TERMINATION OF LICENSE. Upon the effective date of a termination of this
Agreement by Convergent for a breach by the Customer, the Software License
granted to the Customer under this Agreement shall terminate and the
Customer shall immediately discontinue use of the Software and all copies
and documentation thereof and return all copies and documentation to
Convergent.
9. SUPPORT SERVICES.
Purchase of Support Services, including Installation, Training, Hardware
Service, Software Maintenance and Professional Services will be subject to the
terms and conditions of this Agreement and a Customer purchase order for Support
Services that has been accepted by Convergent. Current Support Services
descriptions are provided in Appendix C. Support Services may be provided
Convergent or a party authorized by Convergent to furnish Support Services.
9.1 Warranty Services. During the warranty period, Convergent will provide the
Customer with Support Services for both Hardware and Software Products
without additional charge as described in Section 10. This will include
Maintenance revisions and updates for the Software Products currently
licensed by the Customer.
9.2 HARDWARE SERVICE. During or after the warranty period, the Customer may
elect to purchase Hardware Services from Convergent pursuant to
Convergent's then current programs and US Price List.
9.2 SOFTWARE MAINTENANCE. During or after the warranty period, the Customer
may purchase Software Maintenance Services for revisions and updates to
the Software Products licensed by the Customer subject to the US Price
List.
9.3 INSTALLATION SERVICES. Convergent will provide Installation Services for
Convergent Products at the US Price List.
9.4 TRAINING SERVICES. Convergent will provide Global with one student day of
[**] training at Convergent's headquarters, subject to class schedules,
for each $[**] of expenditures. Additional Training Services are available
at at Convergent's US Price List.
9.5 PRODUCT ELIGIBILITY. To be eligible for Support Services, Hardware
Products must be in good operating condition at revision levels specified
by Convergent and Software Products must be at the then current or
immediately preceding revision level.
6
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
9.6 RELOCATION OF PRODUCTS. Relocation of Products for which Convergent is
providing Support Services is the sole responsibility of the Customer and
may result in adjustment to the price for Support Services and changes to
Service response times. If such Products are relocated to another country
or remote location, continued Support Services is subject to availability
from Convergent or an authorized dealer of Convergent.
9.7 HAZARDS. The Customer agrees to inform Convergent in advance if furnishing
the Support Services will be in an environment that could pose a health or
safety hazard to Convergent employees or subcontractors.
9.8 REPLACEMENT PARTS AND SERVICE TOOLS. All failed parts recovered during a
Service call become the property of Convergent. Replacement parts may be
refurbished or contain refurbished components. Diagnostics, documentation,
spare parts, tools test equipment and other material used in the
performance of Support Services may be furnished by Convergent, already in
the Product, or kept at the Customer's facility. Convergent grants no
title or license to such material and it remains the exclusive property of
Convergent. Customer agrees to allow Convergent immediate access to and
recovery of all such material at Convergent's request.
9.9 LIMITATIONS. Convergent Support Services and Maintenance does not apply to
any Hardware or Software Products that have been: a.) altered, except by
Convergent, b.) damaged as a result of use in conjunction with another
vendor's product, or c.) damaged by an improper environment, abuse,
misuse, accident or negligence.
10. LIMITED WARRANTY
10.1 Product Warranty. Hardware Products and media are warranted to be free
from defects in material and workmanship during the Warranty Period (as
defined below). Hardware and Software Products are warranted to conform
substantially to Convergent's then current (as of the date of
Convergent's product shipment) published user documentation and release
notes during the Warranty Period. The Warranty Period is [**] for
Hardware Products manufactured by Convergent and for Software Products
and the original manufacturer's warranty period for Hardware Products not
manufactured by Convergent. A description of Warranty Service is provided
in Exhibit C. Support Services beyond these periods or service levels
will be available at additional cost under a Support Services Agreement.
The warranty shall commence upon shipment.
10.2 PRODUCT WARRANTY CLAIMS. Convergent shall incur no liability under this
warranty if the Customer fails to provide Convergent with notice of the
alleged defect during the applicable warranty period. Notice of a product
warranty claim shall be given by the Customer using the procedure and
contact numbers posted on the Support Services section of the Convergent
web site on the day the alleged defect occurs. After receiving such
notice, Convergent's Support Services personnel will notify the Customer
of its designation of one of the following problem resolution methods. In
either case, the Customer must receive a valid return material
authorization number from Support Services personnel. a.) Advance
Replacement: If the alleged defect occurs within 30
7
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
days of Product shipment, Convergent will provide an advance replacement
Product to the Customer within one business day. The allegedly defective
goods must be returned to Convergent within five days of receipt of the
replacement product and in accordance with Convergent's warranty repair
procedures discussed in 10.6 below. b.) Return to Factory: If the alleged
defect occurs more than 30 days after Product shipment, the Product
should be returned to Convergent which will return the Product to the
Customer within 10 business days from the date of receipt of the Product
at the designated Convergent repair facility. Convergent shall incur no
liability under warranty if Convergent's tests disclose that the alleged
defect is due to causes not within Convergent's reasonable control,
including alteration or abuse of the goods.
10.3 SUPPORT SERVICES WARRANTY. Support Services are warranted to be performed
in a professional and workmanlike manner.
10.4 SUPPORT SERVICES WARRANTY CLAIMS. Convergent shall incur no liability
under this warranty if the Customer fails to provide Convergent with
notice of the alleged defect in Support Services fulfillment within 15
business days of the alleged occurrence. Notice shall be given by the
customer using the procedure and contact numbers posted in the Support
Services section of the Convergent web site on the day the alleged defect
occurs. After receiving such notice, Convergent's Support Services
Personnel will notify the Customer of the plan of action that will be
used to investigate and correct the alleged defect.
10.5 CONVERGENT'S LIABILITY. Convergent's liability for breach of warranty
hereunder, and end user's sole and exclusive remedy, shall be limited to
the express remedies set forth in this Convergent's Product Warranty.
10.6 DISCLAIMER OF WARRANTIES. CONVERGENT MAKES NO OTHER WARRANTIES, EXPRESS,
IMPLIED OR STATUTORY, REGARDING PRODUCTS AND SUPPORT SERVICES. ALL OTHER
WARRANTIES AS TO THE QUALITY, CONDITION, FITNESS FOR A PARTICULAR
PURPOSE, OR NONINFRINGEMENT ARE EXPRESSLY DISCLAIMED.
10.7 LIMITATION OF LIABILITY. NEITHER PARTY SHALL BE RESPONSIBLE FOR ANY
SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGE, INCLUDING, BUT
NOT LIMITED TO, LOSS OF PROFITS OR DAMAGES TO BUSINESS OR BUSINESS
RELATIONS, WHETHER OR NOT ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH
DAMAGES THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE
OF ANY EXCLUSIVE REMEDIES.
10.8 WARRANTY REPAIR (ADVANCE REPLACEMENT/RETURN TO FACTORY). During the
warranty period, Convergent will provide an advance replacement of a
defective Product. In the event an advance replacement is provided, the
Customer must return the alleged defective Product to Convergent within
five days of receipt of the replacement product. If the alleged defective
Product is not returned within this time period, Convergent will ▇▇▇▇ the
end user for the Product at list price. The warranty period for the
replaced Product shall be [**] days or the remainder of the warranty
period of the original unit, whichever is greater. Convergent will ship
surface freight. Expedited freight is at the Customer's expense.
8
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
10.9 OUT-OF-WARRANTY REPAIR (HARDWARE). Convergent will either repair or, at
its option, replace defective Hardware Products not covered under Product
warranty within 15 business days from the date the Product was received
at the designated Convergent repair facility. Repair charges are
available from Support Services personnel upon request. The warranty on a
serviced Product is [**] days from date of shipment of the serviced unit.
Out-of-warranty repair charges are based upon the prices in effect at the
time of return.
10.10 During the warranty period, Convergent shall provide Customer with
hardware and software support, advanced replacements, and any other
services needed to maintain a [**]% service up time. Should an outage be
caused by a failure of customer, customer shall reimburse Convergent for
all out of pocket and hourly expenses at Convergent's standard rate. If
any problems are determined to be caused by failure of hardware or
software that is under Convergent's warranty, then there shall be no
charge for such support.
11. INTELLECTUAL PROPERTY RIGHTS
Except as described in this Agreement Convergent does not grant and the
Customer acknowledges that it shall have no right, license or interest
in any of the patents, copyrights, trademarks, or trade secrets owned,
used or claimed now by Convergent. All applicable rights to such
patents, copyrights, trademarks, and trade secrets are and will remain
the exclusive property of Convergent, or the third parties from which
Convergent has acquired license rights, subject to the rights expressly
granted to the Customer by this Agreement. Title to and ownership of the
intellectual property rights contained in the Products or any part of
the Products or fulfillment of Support Services or Convergent's
confidential information shall remain Convergent's property.
12. PATENT AND COPYRIGHT INDEMNIFICATION
12.1 Convergent agrees to indemnify and hold the Customer harmless from and
against all claims and judicial or governmental determinations that the
Products and Support Services as delivered by Convergent under this
Agreement infringe or misappropriate any United States patent rights,
copyrights, trade secrets, or trademarks. Convergent shall assume the
defense of any such claim regardless as to its ultimate validity, of
infringement or misappropriation brought against the Customer in the
United States by counsel retained at Convergent's own expense, provided
that the Customer promptly notifies Convergent in writing of such claim
or the commencement of any such suit, action, proceeding or threat
covered by this Section. Convergent shall maintain sole and exclusive
control of the defense and/or settlement of any such claim and the
Customer shall cooperate in the defense of such claim.
12.2 Regardless of any other provisions of this Agreement, this Section shall
not apply a.) to any designs, specifications or modifications originating
with or requested by the Customer, or b.) to the combination of any
Product with other equipment, software or products not supplied by
Convergent if such infringement or misappropriation would not have
occurred but for such combination, or c.) the
9
Customer's failure to install an update provided at no additional charge,
where the update would have avoided the infringement claim.
12.3 THIS SECTION 12 STATES CONVERGENT'S ENTIRE LIABILITY TO THE CUSTOMER AND
THE CUSTOMER'S SOLE REMEDY FOR ANY INFRINGEMENT OR MISAPPROPRIATION OF
ANY PATENT RIGHTS, COPYRIGHTS, TRADE SECRETS, TRADEMARKS OR OTHER
INTELLECTUAL PROPERTY RIGHTS.
13. GENERAL INDEMNITY
Each party agrees to indemnify and hold harmless the other party
(including their directors, officers, employees, agents, representatives,
affiliates, and subcontractors) from and against any claims, damages and
liabilities, including reasonable attorney's fees, asserted by any person
or entity due to personal injury (including death) or tangible property
damage to the extent resulting from any negligent act or omission of such
party; provided, however, that such party shall not be liable for that
portion of liabilities which are caused by the sole negligence of the
other party.
14. LIMITATION OF LIABILITY
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INDIRECT, INCIDENTAL,
SPECIAL, CONSEQUENTIAL, EXEMPLARY PUNITIVE DAMAGES OR LOST PROFITS,
WHETHER FORESEEABLE OR UNFORESEEABLE, OF ANY KIND WHATSOEVER (INCLUDING,
WITHOUT LIMITATION, LOST PROFITS, LOSS OF GOODWILL, LOSS OR DAMAGED DATA
OR SOFTWARE (EXCEPT IN THE CASE OF SOFTWARE, AS STATED IN CONVERGENT'S
WARRANTY FOR SOFTWARE), LOSS OF USE OF THE PRODUCTS, DOWNTIME OR COSTS OF
SUBSTITUTE PRODUCTS OR EQUIPMENT) ARISING FROM THE SALE AND DELIVERY OF
THE PRODUCTS FULLFILLMENT OF SUPPORT SERVICES OR ANY OTHER ACT OF EITHER
PARTY IN CONNECTION WITH THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NO LIMITATION AS TO DAMAGES
FOR PERSONAL INJURY (INCLUDING DEALTH) OR TANGIBLE PROPERTY DAMAGE IS
HEREBY INTENDED. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF
INCIDENTAL OR CONSEQUENTIAL DAMAGES AND THE ABOVE EXCLUSION OR LIMITATION
MAY NOT APPLY.
15. CONFIDENTIALITY
15.1 Definition. For purposes of this Agreement, confidential information
("Confidential Information") shall mean all information (i) identified in
written or oral format by the disclosing party as confidential, trade
secret or proprietary information and, if disclosed orally, summarized in
written format within 10 days of disclosure and (ii) the terms and
conditions of this Agreement.
10
15.2 EXCLUSIONS. Notwithstanding the foregoing, Confidential Information shall
not include any information that the receiving party can show: a.) is now
or subsequently becomes legally and publicly available without breach of
this Agreement by the receiving party, b.) was rightfully in the
possession of the receiving party without any obligation of
confidentiality prior to receiving it from the disclosing party, c.) was
rightfully obtained by the receiving party from a source other than the
disclosing party without any obligation of confidentiality, d.) was
developed by or for the receiving party independently and without
reference to any Confidential Information and such independent
development can be shown by documentary evidence, or e.) is disclosed
pursuant to an order of a court or governmental agency as so required by
such order, provided that the receiving party shall first notify the
disclosing party of such order and afford the disclosing party the
opportunity to seek a protective order relating to such disclosure.
15.3 USE OF CONFIDENTIAL INFORMATION. Both parties agree not to use such
Confidential Information except in their performance under this
Agreement. In addition, both parties shall treat and protect such
information in the same manner as it treats its own information of like
character, but with not less than reasonable care. Both parties agree to
take appropriate measures by instruction and written agreement prior to
disclosure of Confidential Information to their employees to prevent
unauthorized use or disclosure. The obligations of this Section with
regard to Confidential Information shall continue for a period of three
years after termination or expiration of this Agreement, except that the
period with respect to any Confidential Information identified, as a
trade secret shall be perpetual. Confidential Information must be
returned by the receiving party upon termination or expiration of this
Agreement.
15.4 BREACH OF CONFIDENTIALITY. In the event of a breach of any of the
foregoing provisions, both parties agree that the harm suffered by the
disclosing party would not be compensable by monetary damages alone and,
accordingly, that the disclosing party shall, in addition to other
available legal or equitable remedies, be entitled to an injunction
against such breach.
16. TERMINATION
16.1 Termination for Breach. If either party is in breach of this Agreement,
it shall give the other 30 days' prior written notice to cure such
breach. If such breach has not been cured within such 30 day period, then
this Agreement may be terminated by the non-breaching party upon ten days
written notice. If the Customer is in breach of the Section 8 entitled
Software License Agreement, and fails to cure such breach within five
days of notice, Convergent shall have the right to immediately terminate
this Agreement.
16.2 TERMINATION FOR CAUSE. This Agreement may be terminated for cause by
either party in the event that the other party: a.) shall become
insolvent; b.) commits an act of bankruptcy; c.) seeks an arrangement or
compromise with its creditors under any statute or otherwise; d.) is
subject to a proceeding in bankruptcy, receivership, liquidation or
insolvency and same is not dismissed within 30 days; e.) makes an
assignment for the benefit of the creditors; f.) admits in writing its
11
inability to pay its debts as they mature; or g.) ceases to function as a
going concern or to conduct its operations in the normal course of
business.
16.3 CONTINUING OBLIGATIONS. The termination or expiration of this Agreement
shall in no case relieve either party from its obligation to pay to the
other any sums accrued under this Agreement prior to such termination or
expiration.
17. PUBLIC DISCLOSURE
Upon execution of this Agreement any purchase order similar to the form
attached as Exhibit A, Customer agrees to work with Convergent to make a
public announcement of the Customer's purchase of Product and Support
Services from Convergent. The Customer will also be willing to act as a
referral for Convergent.
18. GENERAL
18.1 Entire Agreement; Amendment; Authorized Personnel. This Agreement
supersedes all prior and contemporaneous agreements, representations,
warranties and understandings and contains the entire agreement between
the parties. No amendment, modification, termination, or waiver of any
provision of this Agreement or consent to any departure from this
Agreement shall be effective unless it is in writing and signed by a duly
authorized representative of each party. No failure or delay on the part
of either party in exercising any right or remedy under this Agreement
shall operate as a waiver of such right or remedy.
18.2 ASSIGNMENT. This Agreement shall be binding upon and inure to the benefit
of the parties and their respective successors and assigns, but neither
party shall have the right to assign or otherwise transfer its rights
under this Agreement without receiving the express prior written consent
of the other party, such consent not to be unreasonably withheld. Either
party may, however, assign this Agreement in the event of a sale of all
or substantially all of such party's assets or stock to which assignment
the both parties consent to now.
18.3 NOTICES. All notices, requests, demands, and other communications
provided for under this Agreement shall be in writing and in English to
be sent by registered or certified mail, postage prepaid, to the
receiving party at its address as set forth in this Agreement or to any
other address that the receiving party may have provided to the sending
party in writing. When feasible, any such notice, request, demand or
other communication shall also be transmitted by facsimile as follows or
to such other facsimile number as provided by the receiving party in
writing: The Customer's Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇ ATTN: ▇▇▇▇
▇▇▇▇▇▇. Convergent's facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇. ATTN: General
Counsel. Any notice, request, demand or other communication sent by
facsimile will be deemed to have been received on the day it is sent. Any
notice, request, demand or other communication sent by registered or
certified mail will be deemed to have been received on the seventh
business day after its date of posting, unless it is sent by facsimile
prior to such seventh business day.
18.4 GOVERNING LAW. This Agreement and all acts and transactions pursuant
hereto and the rights and obligations of the parties hereto shall be
governed, construed
12
and interpreted in accordance with the laws of the Commonwealth of
Massachusetts.
18.5 U.S. GOVERNMENT RESTRICTED RIGHTS. The Products are provided with
Restricted and Limited Rights. Use, duplication or disclosure by the
Government is subject to restrictions as set forth in FAR 52.227-14 (June
1987), Alternate III(g)(3) (June 1987), FAR 52.227-19 (June 1987), or
DFARS 52.227-7013 (c)(1)(ii) (June 1988), as applicable. The
Contractor/Manufacturer is Convergent Networks, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. In the event the Government seeks
to obtain the Programs pursuant to standard commercial practice, this
Agreement, instead of the noted regulatory clauses, shall control the
terms of the Government's license.
18.6 COUNTERPARTS; SEVERABILITY; AND HEADINGS. This Agreement may be executed
in any number of counterparts, each of which when executed and delivered
shall be deemed to be an original and all of which taken together shall
constitute one and the same instrument. The provisions of this Agreement
are declared to be severable. In the event that any provision contained
in this Agreement shall be held to be unenforceable or invalid, the
remaining provisions shall be given full effect, and the parties agree to
negotiate, in good faith, a substitute valid provision that most nearly
approximates the parties' intent. The failure of either party in any one
or more instances to enforce any of the terms of this Agreement shall not
be construed as a waiver of future enforcement of that or any other term.
Headings in this Agreement are included for reference only and shall not
constitute a part of this Agreement for any other purpose.
18.7 EXCUSABLE DELAYS. Neither party shall be held responsible for any delays
or failure in performance caused in whole or in part by fires, strikes,
floods, embargoes, labor disputes, delays or failures of subcontractors,
acts of sabotage, riots, accidents, delays of carriers, voluntary or
mandatory compliance with any governmental act, regulation or request,
acts of God or by public enemy, or any other causes beyond the party's
reasonable control. If such contingency shall occur, the defaulting party
may elect to either (a) suspend this Agreement for the duration of the
delaying cause, or (b) extend the duration of this Agreement by the
length of time the contingency endured, or the non-defaulting party may
terminate this Agreement upon giving ninety (90) days prior written
notice.
18.8 SURVIVAL. The parties agree that the provisions of the following Sections
shall survive the expiration or earlier termination of this Agreement for
any reason: Software License Agreement, Patent and Copyright
Indemnification, Limitation of Liability, and Confidentiality.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed in duplicate by their duly authorized representatives as of the
effective date written below.
Convergent Networks, Inc: The Customer
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------- ------------------
Signature, Name and Title Signature, Name and Title
13
EXHIBIT A
Purchase Order Between
Convergent Networks, Inc. and
(Customer)
PROJECT TITLE:
--------------------------
CITY/LOCATION:
--------------------------
Customer Information:
Customer: Convergent Account Manager:
Customer Contact: Purchase Order No.:
Customer Tel: Purchase Order Date:
Customer FAX: Required Delivery Date:
Quotation No.:
Billing Information:
Company: Company:
Address: Address:
Attention: Attention:
Telephone: Telephone:
Shipping Method:
Product
Information:
Product Product Code Quantity List Price Discount Total Cost
------------------------------------------------------------------------------------------------------------------
----------------------------------------------
Total:
Maintenance:
Installation:
Total Service:
Taxes:
----------------------------------------------
Grand Total:
Signature:
------------------------------------
Appendix C
----------
14
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
1. Warranty Service
Warranty Service
1.1 Description. Hardware and Software Products are warranted to conform
substantially to Convergent's then current (as of the date of
Convergent's Product shipment) published user documentation and release
notes during the Warranty Period.
1.2 Pre-conditions. Warranty starts at the date of shipment.
1.3 Intended Customers. Customers buying new Convergent Hardware and Software
Products.
1.4 Term. The term of Warranty Service is [**] for Hardware Products
manufactured by Convergent, the original manufacturer's warranty for
hardware not manufactured by Convergent and [**] days on Software
Products.
1.5 Delivery. For Software Products, Convergent will provide on-line access
to maintenance releases and unrestricted access 7x24x365 to Technical
Assistance Center ("TAC") phone support and to web-based FAQs. For
Hardware Products for the first 30 days Warranty Service provides next
business day advance exchange of defective hardware. If the alleged
defect occurs more than 30 days after Product shipment, the Product
should be returned to Convergent which will return the Product to the
Customer within 10 business days from the date of receipt of the Product
at the designated Convergent repair facility.
1.6 Exclusions. Software Warranty Service is limited to maintenance updates
for Customer-purchased base software and associated features and does not
entitle the Customer to receive any new Software features, major or minor
releases that may become available during the warranty period.
1.7 Availability .Warranty Service is available upon shipment of Products.
See "Pre-conditions" above.
2. Software Maintenance Service
2.1 Description. Extends software support beyond the standard 90 day
Warranty. This contracted support includes major and minor releases of
ICS, ICView, SMG, and ICDR base software and previously purchased ICS
feature sets that are released during or after the warranty period, plus:
a. Phone support via the Convergent TAC
b. Web-based FAQs
c. The Convergent on-line knowledge base
d. Bug tracking module
e. Access to Product change notices
f. On-line case management and ticket tracking
2.2 Pre-conditions. None
2.3 Intended Customers. All Customers that want to upgrade their Convergent
Software Products to the latest revisions.
2.4 Term. Twelve month contract renewable annually.
2.5 Delivery. Access is 7x24x365 via on-line access and phone support.
2.6 Exclusions. Software Maintenance Service is limited to Customer purchased
Software Products and associated features.
2.7 Price. Subject to the most recently published US Price List.
15
2.8 Availability. During or after the Warranty Period the Customer may elect
to purchase Software Maintenance Service.
3. Hardware Services
3.1 Description. Hardware Services are intended to support the Customer's
Hardware and Software Products after the Warranty Period. Hardware
Services includes all Software Maintenance Service features plus:
- Next business day advance exchange hardware replacement
- Phone support via the Convergent TAC
- Web-based FAQs
- The Convergent on-line knowledge base
- Bug tracking module
- Access to Product change notices
- On-line case management and ticket tracking
3.2 Pre-conditions. None
3.3 Intended Customers. Customers that want 24 hour delivery services to
replace their defective Convergent hardware.
3.4 Term. Twelve month contract renewable annually.
3.5 Delivery. Access is 7x24x365 via on-line access and phone support.
3.6 Exclusions. See Software Maintenance Service exclusions. 24 hour delivery
is for defective piece parts and not fully configured replacement units.
3.7 Price. Subject to the most recently published US Price List.
3.8 Availability. During or after the Warranty Period the Customer may elect
to purchase Hardware Services.
4. Training Service
4.1 Description. Training Service provides comprehensive training courseware
to operate the Customer's new or existing Convergent equipment. Current
courses include:
- ICS2000 Installation, Operations, and Maintenance
- Instructor-led lecture and labs covering ICS hardware and software, SMG,
ICView, and ICDR.
4.2 Pre-conditions. Students should have familiarity with the following
technologies:
-ATM -ISDN -SS7 -VoIP -OC3 -DS3 -xDSL
4.3 Intended Customers: The intended audience includes personnel with the
following job responsibilities:
- Voice and data networking technicians and engineers
- Equipment installation
- Software installation
- Equipment provisioning/configuring
- Network problem resolution
- Network design
- Network monitoring
- Billing mediation
- Network troubleshooting.
16
4.4 Term. All courses are five days.
4.5 Delivery. All classes are scheduled for Lowell, Massachusetts.
4.6 Price. Subject to the most recently published US Price List.
4.7 Exclusions. Courses are not intended to provide instruction on basic
networking, UNIX or Solaris operating systems, or network performance
analysis.
4.8 Availability. Please contact the Convergent Networks training department
to verify course dates and availability:
Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
E- mail: ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
-----------------------------------
Web: http//www.convergentnetcom/training.html
Courses are subject to a minimum of four and a maximum of six students
per class.
5. Standard Installation Services
5.1 Description. This program includes a project manager, staging and
configuration services, design validation, as-built documentation,
facilities validation, installation and support for ICS2000, SMG, ICView,
and ICDR.
5.2 Pre-conditions. The customer must provide:
- Network design documentation
- Facilities readiness checklist (physical and environmental)
- Project coordinator
- Project acceptance signoffs
5.3 Intended Customers
- All new Convergent customers
- Customers that are resourced constrained
- Customers requiring assistance in staging, configuration and on-site
installation
5.4 Term. The service terminates upon the completion of the acceptance
testing defined at the beginning of the project.
5.5 Delivery. Standard Installation Services are performed at the pre-defined
Customer facility by Convergent field specialists at a time mutually
agreed between Convergent and the Customer.
5.6 Exclusions. The following services are NOT included in the Standard
Installation Services offering: network design, facilities preparation,
management of non-Convergent products, optimization of traffic flow, or
additional on-site presence by Convergent field personnel beyond the
completion of the Customer acceptance testing. Time and Materials charges
may apply for on-site requirements that extend beyond the initial term.
5.7 Price. Subject to the most recently published US Price List.
5.8 Availability. Standard Installation Services are available weekdays
during normal business hours (8AM to 5PM local time). However, the
solution cut over may be performed outside of normal business hours.
6. Managed Project Installation Service
17
6.1 Description. This program includes all aspects of Standard Installation
Services plus Customer-specific EF &1 work that may include designing,
preparing, l cabling, installing, configuring, testing and documenting
the Customer's voice and data network.
6.2 Pre-conditions. The Customer will provide:
- Project coordinator
- Project requirements input and documentation
- Project acceptance signoffs
6.3 Intended Customers. All Convergent Customers requiring extensive
networking design, physical layout, or other customized work and
Customers that are resourced constrained.
6.4 Term. The service terminates upon the completion of the acceptance
testing defined at the beginning of the project.
6.5 Delivery. Managed Project Installation Services are performed at the pre-
defined Customer facility by Convergent field specialists at a time
mutually agreed upon by Convergent and the Customer.
6.6 Exclusions. The following services are NOT included in the Managed
Project Installation Services offering: management of non-Convergent
products, optimization of traffic flow, or additional on-site presence by
Convergent field personnel beyond the completion of the Customer
acceptance testing. Time and Materials charges may apply for on-site
requirements that extend beyond the initial term.
6.7 Price. Managed Project Installation Services are available weekdays
during normal business hours (▇▇▇ to 5PM local time). However, the
solution cut over may be performed outside of normal business hours.
7. Time and Material Services
7.1 Description. Time and Material ("T&M") Services are designed for events
and incidents that are not covered by other Convergent offerings, or to
fit a one-time need for Convergent Customers. This service can cover a
broad range of support requirements and typically involves on-site
activities.
7.2 Pre-conditions. Customer defined specifications will include:
- Problem statement and required solution(s)
- Appropriate technical documentation and facility access
- Contact information.
7.3 Intended Customers. Any Convergent Customer. T&M Services are intended
for Customer on-site requirements that are limited in duration.
7.4 Term. Terminated upon fulfillment of the problem statement as specified
by the Customer.
7.5 Delivery. Mutually defined schedule.
7.6 Exclusions. Limited to Convergent Products and supported OEMs only.
Short-term requirements only. Longer or more complex engagements should
be quoted via the Convergent Managed Project Installation Service. T&M
billing may apply to site visits that are required for "priority 1"
issues that are reported and escalated through the Convergent TAC
engineer if the problem is determined to be external to Convergent
Products.
18
7.7 PRICE. Hourly rates and material used are subject to the most recently
published US Price List.
7.8 AVAILABILITY. Subject to resource and material availability.
19
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
[LETTERHEAD OF CONVERGENT NETWORKS APPEARS HERE]
July 31, 2000
▇▇▇▇▇ ▇▇▇▇▇
President
Global NAPs
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear ▇▇▇▇▇:
As we have discussed, the following clarifies the business agreement between
Convergent Networks, Inc. and Global NAPs.
Paragraphs 7.2, 10.8 and 10.10 of our agreement dated May 1, 2000 shall be
replaced in entirety by the paragraphs below.
7.2 SOFTWARE UPGRADES. Convergent shall promptly notify the Customer of
Software Product upgrades. Convergent will continue to offer maintenance on its
Software Products for its current major release and the release immediately
prior to its current release. Convergent shall provide upgrades to Software
purchased by the Customer that contain fixes to Product abnormalities during the
Warranty period.
10.8 WARRANTY REPAIR. During the first 30 days after Product shipment,
Convergent will provide an advance replacement of a defective Product. In the
event an advance replacement is provided, the Customer must return the alleged
defective Product to Convergent within five business days of receipt of the
replacement Product. If the alleged defective Product is not returned within
this time period, Convergent will ▇▇▇▇ the Customer for the Product at list
price. The Warranty for the replaced Product will be [**] days or the remainder
of the Warranty period of the original unit, whichever is greater. Convergent
will ship surface freight. Expedited freight is at the Customer's expense.
10.9 During the Warranty period, Convergent shall provide the Customer with
Hardware and Software support needed to maintain a [**]% service up time. Should
an outage be caused by a failure of the Customer, the Customer shall reimburse
Convergent for all out-of-pocket and hourly expenses at Convergent's standard
rate. If any problems are determined to be caused by failure of Hardware or
Software Products under Convergent's Warranty, then there shall be no charge for
such Support Services.
If you agree with the above clarifications, please sign both copies of this
letter below, retain one for your files and return one to my attention.
I look forward to seeing you again soon.
Sincerely,
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Chairman, President and
Chief Executive Officer
Convergent Networks
Agreed:
/s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------
▇▇▇▇▇ ▇▇▇▇▇
President
Global NAPs