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EXHIBIT 10.7
[AT&T LOGO]
GENERAL AGREEMENT #
FOR THE PROCUREMENT OF
EQUIPMENT, SERVICES AND SUPPLIES,
AND THE LICENSING OF SOFTWARE
BETWEEN
VISUAL NETWORKS, INC.
AND
AT&T CORP.
Agreement made November 26, 1997 by and between VISUAL Networks, Inc.(Visual) a
Delaware corporation, having a place of business at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ and AT&T Corp. (AT&T) a New York corporation,
having a place of business at ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, to
facilitate the anticipated future procurement for both internal use and resale
of Equipment, the license of Software, and the purchase of Maintenance Services
and Materials.
On the basis of VISUAL's representations and in reliance upon VISUAL's
expertise in analyzing, designing and providing Equipment and Software for
AT&T's applications per the specifications, the parties agree as follows:
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Article I
Definitions Applicable To
The Entire Agreement
DEFINITIONS
The definitions of this Article, which are set forth below in italics, apply to
all the Articles of this Agreement:
Associated Entity means a corporation, partnership or venture, forty
(40) percent of whose voting stock or ownership interest is
owned directly or indirectly by AT&T.
AT&T means AT&T Corporation or an Associated Entity which enters into
or issues an Order under this Agreement.
Console Software means PACs ,PAMs, and MICs
Enhancements mean all Software changes, including enhancements, new
releases, new versions, product improvements, system
modifications, updates, upgrades, field modifications and the
like.
Equipment means either standard or non-standard equipment. standard
equipment means Ethernet CSU/DSC devices & V35 probes with
Ethernet interfaces; non-standard equipment means any other
equipment supplied under the terms of this agreement.
Identification means any copy or semblance of any trade name,
trademark, service ▇▇▇▇, insignia, symbol, logo, or any other
product, service, or organization designation, or any
specification or drawing of AT&T.
Indemnities means AT&T, its customers, officers, directors, employees
and representatives, others doing work under its immediate or
ultimate direction and control, its end customers and
intermediaries in the distribution chain, and its successors
and assigns.
Information means any idea, data, program, technical, business or
other intangible information, however conveyed.
Installation Date means the dates by which the Equipment or Materials
which have been delivered are to be installed and ready for
use.
Maintenance Order means an order for Maintenance Services written on
AT&T's Order.
Maintenance Services includes all Services required by this Agreement
to keep the Equipment in good operating condition within the
Equipment manufacturer's specifications and other
specifications applicable to this Agreement.
Materials mean repair, maintenance or replacement parts for Equipment,
Media not fixedly embedded in Equipment, and tangible supplies
of other kinds which are for or associated with Equipment.
Media or Medium means any document, print, tape, disc, tool,
semiconductor chip or other tangible information-conveying
article.
Modifications mean AT&T additions to the Software, deletions from the
Software, or merges of the Software with one or more programs
owned or licensed by AT&T forming an updated and otherwise
modified software.
Order means AT&T's form of purchase order or contract used for the
purpose of ordering Equipment, Software, Services or
Materials.
Product means Equipment, Software, or Materials supplied under this
agreement.
Services means (1)Maintenance Services and other services in support
of purchased Equipment; (2) other services such as
installation, configuration, staging, training or other
professional services; or 3) the subject matter called for by
any Order.
Software means intangible Information constituting one or more
computer or apparatus programs and the informational content
of such programs, together with any documentation
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supplied in conjunction with and supplementing such programs,
the foregoing being provided to AT&T by way of electronic
transmission or by being fixed in Media furnished to AT&T.
Software Source Material means Information consisting of all
intangible source programs, technical documentation and other
information required for maintenance, modification or
correction of the most current version of the Software
supplied to AT&T.
Specifications means the specifications for the Equipment and Software
as set forth in Exhibit 1 of this Agreement or if not so set
forth, shall mean VISUAL's current published specifications,
user documentation, and other information for the Equipment
and Software as of the date of an Order and any additional
specifications furnished by AT&T.
Use means use by any individual having authorized access to the
computer on which the Software is operated.
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Article II
Provisions Applicable To
Purchase of Equipment And Materials
CONTENTS
CLAUSE PAGE
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EQUIPMENT TESTING 5
MARKING 5
MEAN TIME BETWEEN FAILURE RATES 5
RETURN OF EQUIPMENT and MATERIALS 5
RISK OF LOSS 6
SPECIFICATION 6
TITLE 6
WARRANTY 6
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DEFINITIONS
The definitions of Article I apply to this Article.
EQUIPMENT TESTING
In addition to any other tests to be requested by AT&T as set forth in this
Agreement, VISUAL is responsible for the performance of standard factory
production tests established by VISUAL which, in the absence of any other
testing requested by AT&T as set forth elsewhere in this Agreement, shall be
deemed to be the final tests under this Agreement. Such tests shall be
performed in accordance with VISUAL normal testing and quality control
procedures for Equipment of the type purchased hereunder to insure that the
Equipment provided hereunder meets all applicable Specifications. At the
option of AT&T, VISUAL shall furnish a copy of its test plans and quality
control procedures to AT&T prior to initiating any such testing and AT&T, at
its expense, may witness any of the testing by giving prior notice to VISUAL.
VISUAL also agrees to maintain detailed records of all such tests and to
provide AT&T, if requested, with written results of these tests.
VISUAL shall only ship units which have successfully passed testing for safety
and for compliance with the functional specification. Specifically, each unit
shipped shall pass in-circuit-test (ICT), power surge (Hypot), and functional
testing per the product Specification.
MARKING
All material furnished under this Agreement shall be marked for identification
purposes in accordance with the Specifications set forth in this Agreement or
an Order, and as follows:
(a) with VISUAL model/serial number;
(b) with month and year of manufacture
VISUAL agrees to add any other identification which might be requested by AT&T
such as but not limited to distinctive marks conforming to AT&T's serialization
plan. Charges, if any, for such additional identification marking shall be as
agreed upon by VISUAL and AT&T.
MEAN TIME BETWEEN FAILURE RATES
VISUAL shall issue a quarterly report that provides the necessary information
to clearly identify quality issues that may occur in its product lines. That
report shall include the following metrics:
***
The information shall be presented in several different formats including an
overall product summary and a summary for each discrete product type.
RETURN OF EQUIPMENT AND MATERIALS
VISUAL agrees to accept for credit Equipment and Materials returned under any
of the following circumstances:
1. AT&T termination or cancellation of an Order for VISUAL's standard
Equipment or exchange by AT&T of one VISUAL Product for another VISUAL
Product within *** days of the termination or cancellation, provided
Product is not usable in other equipment within the location;
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*** Confidential Information has been omitted and filed separately with the
Securities and Exchange Commission.
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2. VISUAL or AT&T error in the ordering or shipping process, provided the
Equipment or Materials are returned by AT&T to VISUAL within *** days of
receipt; or
3. Receipt of defective Equipment or Materials or failure of Equipment or
Materials under the applicable warranty.
Equipment shall be returned without penalty to AT&T if the return is due to
fault of VISUAL. If the return is not the result of any VISUAL fault, AT&T's
may return standard equipment within *** days of the date of shipment from
VISUAL and shall be subject to a *** % restocking charge . Return of
non-standard Equipment shall be dealt with on a case by case basis with VISUAL
making good faith efforts to accept non-standard equipment back under the same
terms as standard Equipment if possible. Equipment or Materials returned for
credit must be in complete cartons and in good resaleable condition, except
where the Equipment or Materials are defective or fail under the applicable
warranty
RISK OF LOSS
VISUAL shall retain risk of loss and damage to the Equipment or Materials prior
to the passage of title pursuant to the Title clause unless caused by the
willful or negligent acts of AT&T or its employees. Shipments shall be made FOB
destination , prepay and add. Carrier is to be chosen by VISUAL unless
otherwise determined by AT&T
SPECIFICATION
Products sold by VISUAL to AT&T under this Agreement shall meet VISUAL'S design
and manufacturing Specifications as defined under Warranty. In addition, VISUAL
agrees that it will meet the Specifications defined in Exhibit 1 and any future
specifications agreed to by the parties.
TITLE
Title to Product shall rest in AT&T upon their acceptance which shall be deemed
to occur upon receipt of the Product at AT&T's receiving dock unless otherwise
specified by AT&T before or promptly after such receipt.
WARRANTIES
Equipment Warranty
VISUAL warrants to AT&T and its customers that the Equipment and Materials
furnished shall be merchantable and free from defects in design, material and
workmanship and shall conform to and perform in accordance with the
Specifications. These warranties extend to the future performance of the
Equipment and materials and shall continue for the longer of (a) five (5) years
after the Equipment or materials are accepted by AT&T, or (b) a greater period
if specified elsewhere in this Agreement or an Order. VISUAL also warrants to
AT&T and its customers that the Equipment and Materials shall be new and that
services shall be performed in a first class, workmanlike manner. In addition,
if the Equipment or materials furnished contains one (1) or more manufacturer's
warranties, VISUAL hereby assigns those warranties to AT&T and its Customers.
Equipment, Materials or Services not meeting the warranties will, at AT&T's
option, (a) be returned for repair or replacement by VISUAL at no cost to AT&T
or its customers and with transportation costs and risk of loss and damage in
transit borne by the respective parties as
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*** Confidential Information has been omitted and filed separately with the
Securities and Exchange Commission.
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described herein. VISUAL shall not charge AT&T for any repair or maintenance of
Equipment or Materials covered by this warranty
All warranties shall continue in full force and effect notwithstanding transfer
of title to the Equipment or Materials by AT&T, so long as AT&T and its
customers shall remain the user of the Equipment or Materials. All warranties
shall also survive inspection, acceptance and payment.
SERVICE WARRANTY
Visual warrants to AT&T and its customers that replacement and repair parts and
components furnished under this Agreement or an Order shall be new,
merchantable, free from defects in design, material and workmanship and shall
conform to and perform in accordance with the specifications and drawings and
shall function properly for their intended purpose. These warranties extend to
the future performance of the parts and components and shall continue for the
longer of (a) the design life of such parts or components, (b) five (5) years
from the date of AT&T's acceptance of their installation, (c) the duration of
the Maintenance Order, or (d) a greater period as may be specified elsewhere in
the Maintenance Order. Visual further warrants to AT&T that the Maintenance
Services shall be performed with promptness and diligence, in a first-class,
workmanlike manner and to AT&T's satisfaction and that the Equipment shall
function in good operating condition during the duration of the Maintenance
Order. In addition, if the parts or components bear one (1) or more
manufacturers' warranties, Visual hereby assigns those warranties to AT&T.
All warranties shall survive inspection, acceptance and payment.
Equipment, parts, components or Maintenance Services not meeting the warranties
will, at AT&T's option, be returned for repair, replacement or reperformance
by Visual at no cost to AT&T or be subject to refund.
Whenever Equipment , repair parts or components under warranty are returned to
Visual for repair or replacement purposes, AT&T shall bear all costs of
packing, rigging, transportation and insurance to return the Equipment to
Visual, and Visual shall bear all costs of packing, rigging, transportation and
insurance to replace that Equipment.
Software Warranty
VISUAL warrants to AT&T and its customers the following:
1. The Software will conform to and perform in accordance with the
Specifications.
2. That for a period of 90 days after receipt, the Media conveying the
Software will be free from defects in material and workmanship. VISUAL
will replace defective Media at no charge.
3. The foregoing warranties extend to the future performance of the Software
and shall continue for the longer of (a) five (5) years after the Software
is accepted by AT&T, or (b) a greater period specified elsewhere in this
Agreement or an Order
4. There are no copy protection or similar mechanisms within the Software
which will, either now or in the future, interfere with the grants made in
this Agreement or an Order.
5. AT&T and its customers shall have quiet enjoyment of the Software.
6. As to Software for which VISUAL does not solely own all intellectual
property rights, VISUAL has full right, power and authority to sub-license
the Software to AT&T and its customers as provided in this Agreement or an
Order.
7. If the Software, or any portion thereof, is or becomes unusable, totally,
or in any respect during the applicable warranty period, VISUAL will
re-perform Services, correct errors, defects and non-conformities and
restore the Software to conforming condition free of significant errors at
no cost to AT&T or its customers. Corrected Software shall be warranted as
set forth in this clause.
8. To the best of VISUAL knowledge, the Software does not contain any
malicious code, program, or other internal component (e.g. computer virus,
computer worm, computer time bomb, or similar component ) that could
damage, destroy, or alter Software, firmware, or hardware or which could,
in any manner, reveal, damage, destroy, or alter any data or other
information accessed through or
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processed by the Software in any manner. VISUAL shall immediately advise
AT&T, in writing, upon reasonable suspicion or actual knowledge that the
Software provided under this Agreement or an Order may result in the harm
described above.
9. VISUAL warrants that Software will record, store, process and present
calendar dates falling on or after January 1, 2000, in the same manner and
with the same functionality as it performed before January 1, 2000.
10. VISUAL warrants that any Software upgrade will not cause the system
configuration to become corrupt or lost. VISUAL also warrants any Software
upgrade will not adversely effect the "database" or the elements supported
(e.g. if the application database has 5000 elements, the change will not
cause the data to be re-keyed back in to the application ).
11. All warranties shall survive inspection, acceptance and payment.
All warranties shall continue in full force and effect notwithstanding transfer
of title to the Equipment or Materials by AT&T, so long as AT&T, its customers
or its Associated Entities shall remain the user of the Equipment or Materials.
All warranties shall also survive inspection, acceptance and payment.
Whenever Equipment , repair parts or components under warranty are returned to
Visual for repair or replacement purposes, AT&T shall bear all costs of
packing, rigging, transportation and insurance to return the Equipment to
Visual, and Visual shall bear all costs of packing, rigging, transportation and
insurance to replace that Equipment.
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Article III
Provisions Applicable to License of Software
CLAUSE PAGE
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DEFINITIONS 10
LICENSE GRANT 10
LICENSE IDENTIFICATION 10
INTELLECTUAL PROPERTY RIGHTS 10
REMOTE ACCESS 10
RISK OF LOSS 10
SOFTWARE AND PROGRAMMING AIDS 11
SOURCE PROGRAMS AND TECHNICAL DOCUMENTATION 11
SEVERITY EPIDEMIC CONDITIONS 11
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DEFINITIONS
The definitions of Article I apply to this Article.
LICENSE GRANT
Visual hereby grants to AT&T an irrevocable, nonexclusive, worldwide license to
Use the Software. *** The license shall be effective from the date of AT&T's
acceptance of the Equipment and Software and shall remain in effect until the
Use of the Software, as it may have been updated or enhanced by Visual from
time to time, is permanently discontinued by AT&T under the terms of the Order.
AT&T agrees that, upon termination of the license of Software, all parts of the
Software shall be completely removed, destroyed, or returned to Visual, at
AT&T's option, unless this requirement is waived by Visual. However, in the
event of such termination, AT&T may retain copies of the Software for archival
purposes only. Upon delivery to AT&T, all media shall become the property of
AT&T except that fixed in Equipment, title to which shall pass to AT&T upon
acceptance of the Equipment. The foregoing license extends to any use of any
program or Software developed using the object code of the Software. AT&T may
sublicense the Software as set forth above. All obligations, undertakings and
indemnifications by Visual under an Order shall run and inure to the benefit of
AT&T and the sublicenses. No sublicense shall release Visual from its
obligations under an Order, except that Visual shall be a third party
beneficiary .
LICENSE IDENTIFICATION
AT&T and Visual will develop a method for Visual Software packaged by AT&T to
inform AT&T customers that their use of Visual Software is subject to the
license grant terms of this agreement .
INTELLECTUAL PROPERTY RIGHTS
Title to the Software and to intellectual property rights therein shall remain
in VISUAL or VISUAL's licensor, as applicable. AT&T shall have the right to
make a reasonable number of copies of the Software for Use as authorized in
this Agreement. AT&T however, shall not knowingly reproduce copies of the
Software for the purpose of supplying it to others except individuals
authorized herein.
REMOTE ACCESS
AT&T shall have the right, at no additional charge or fee, to have the Software
used at any other location by means of remote electronic access subject to the
limitations of the applicable licenses granted.
RISK OF LOSS
If any Software fixed in the Media is lost, damaged, or made invalid during
shipment, Visual will promptly replace the Software and Media at no additional
charge to AT&T. VISUAL acknowledges that, from time to time, Software in AT&T's
possession may become lost or damaged. Accordingly, VISUAL agrees that, during
the six-month period following delivery of any Software to AT&T, VISUAL shall
promptly replace any Software that is lost or damaged while in the possession
of AT&T, at the established charge for the associated Media. Notwithstanding
anything to the contrary contained in the preceding sentence, AT&T agrees that
it will take reasonably prudent steps to safeguard all Software against loss
and damage and VISUAL shall only be required to replace a reasonable number of
copies of any lost or damaged Software, with the determination of such
reasonable number being made by VISUAL.
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*** Confidential Information has been omitted and filed separately with the
Securities and Exchange Commission.
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SOFTWARE AND PROGRAMMING AIDS
On the delivery date, VISUAL shall furnish to AT&T, at no additional charge or
fee, the following basic items:
1. Object program (the fully compiled or assembled series of
instructions, written in machine language, ready to be loaded into the
computer, that guides the operation of the computer) stored in a
Medium compatible with the Equipment described in the Order;
2. Program implementation and user instructions and required procedures;
3. The Software Specifications, as well as the required machine
configuration;
4. Sample data output, such as printouts or typical screen displays, and
any other programs, routines, subroutines, utility or service
programs, flow charts, logic diagrams and listings, descriptive
Specifications and acceptance Specifications or related material
VISUAL may have which is necessary or useful for the full
implementation and Use of the Software and which VISUAL normally
furnishes to users of the Software .
SOURCE PROGRAMS AND TECHNICAL DOCUMENTATION
VISUAL shall, at AT&T's request, enter into an Escrow Agreement substantially
the same in form and substance to the form attached to this Agreement to
safeguard VISUAL's Software Specifications and source program at any time
during the duration of this Agreement. Both parties shall negotiate in good
faith such Escrow Agreement.
EPIDEMIC CONDITION
If during the term of this Agreement and for one year after the last shipment
date of Equipment, Software, or Materials (collectively referred to as
"Product") under this Agreement AT&T notifies VISUAL that Product shows
evidence of an "Epidemic Condition," VISUAL shall prepare and propose a
Corrective Action Plan ("CAP") with respect to such material within five (5)
working days of such notification, addressing implementation and procedure
milestones for remedying such Epidemic Condition(s). An extension of this
time-frame is permissible upon mutual written agreement of the parties.
***
An Epidemic Condition will be considered to exist when one or more of the
following conditions occur:
***
Only major functional and visual/mechanical/appearance defects are considered
for determining Epidemic Condition. Product may be either sampled or, at AT&T's
option, 100% audited at AT&T premises or AT&T's customers' locations.***
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*** Confidential Information has been omitted and filed separately with the
Securities and Exchange Commission.
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For the purpose of this Agreement, functional DOA shall be defined as any
Product that during the test, installation or upon its first use fails to
operate per the specification. Visual/mechanical/appearance DOA is defined as
any Product containing one or more major defects that would make the Product
unfit for use or installation. An Epidemic Condition shall not include failures
due to customer misapplication, utilization of parts not approved by VISUAL, or
chain failures induced by internally or externally integrated subassemblies.
In the event that VISUAL develops a remedy for the defect(s) that caused the
Epidemic Condition and AT&T agrees in writing that the remedy is acceptable,
VISUAL shall:
***
VISUAL and AT&T shall mutually agree in writing as to the remedy's
implementation schedule. VISUAL shall use its best efforts to implement the
remedy in accordance with the agreed-upon schedule.
***
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*** Confidential Information has been omitted and filed separately with the
Securities and Exchange Commission.
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Article IV
Provisions Applicable To
MAINTENANCE SERVICES For EQUIPMENT
CONTENTS
CLAUSE PAGE
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DEFINITIONS 14
BREAKAGE, DISAPPEARANCE AND CONDITION 14
CONTINGENCY 14
ELIGIBILITY FOR MAINTENANCE SERVICES 14
IDENTIFICATION CREDENTIALS 14
MAINTENANCE FACILITIES 15
PRECAUTIONS 15
TECHNICAL INFORMATION, SOFTWARE AND PROGRAMMING AIDS 15
TITLE 15
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Definitions
The definitions of Article I apply to this Article.
BREAKAGE, DISAPPEARANCE AND CONDITION
VISUAL shall take such precautions VISUAL deems necessary or desirable (which
do not violate AT&T's plant rules or cause inconvenience or delay to AT&T)
regarding tools, equipment, and Materials, regardless of whether or not owned
by VISUAL, which VISUAL causes to be brought to AT&T's premises. AT&T shall
have no responsibility for their care, safekeeping, or operating condition.
AT&T shall not bear any cost or expense associated with their breakage or
disappearance unless resulting from AT&T's negligence.
Notwithstanding anything to the contrary contained in the preceding sentence ,
in the event that AT&T makes a special request of VISUAL to perform special
demonstrations of Equipment, Software, systems capabilities, etc., at any
AT&T site or at the site of AT&T's customers and such demonstrations require
the use of Visuals equipment, AT&T shall be responsible for and bear the risk
of loss associated with any breakage, destruction or disappearance of such
Equipment, Software, & Material, resulting from AT&T's negligence.
CONTINGENCY
If VISUAL fails to perform the Maintenance Services, AT&T may arrange for the
performance of the Maintenance Services by another party after having given
VISUAL at least twenty-four (24) hours prior written notice of intention to do
so. VISUAL shall be responsible to AT&T for all reasonable expenses incurred
in such performance.
ELIGIBILITY FOR MAINTENANCE SERVICES
Equipment shall be eligible for Maintenance Services provided it shall have
been under Maintenance Service or warranty by VISUAL or any authorized
maintenance provider on the date of commencement of this Agreement. From time
to time, AT&T may assume responsibility for equipment either:
1.owned by AT&T customers or
2.having that ownership transferred to AT&T
If the Equipment is not eligible, but can be made eligible, AT&T may, at its
expense, make or have made those changes required to upgrade the Equipment to
eligibility status. Warranties shall be effective as provided for in this
Agreement. VISUAL will invoice AT&T a one time equipment transfer fee per unit
at a cost of ***. Additionally, after the initial term of this agreement is
over, Visual may invoice AT&T, on a per unit basis, a cost of either i.***
per year or ii. *** for the balance of any extension to this agreement but not
to exceed 3 years.
IDENTIFICATION CREDENTIALS
AT&T may, at its discretion, require VISUAL's employees and subcontractors to
exhibit identification credentials, which AT&T may issue, in order to gain
access to AT&T's premises for the performance of
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*** Confidential Information has been omitted and filed separately with the
Securities and Exchange Commission.
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the Services. If for any reason, any of VISUAL's employees or subcontractors
are no longer performing Services, VISUAL shall immediately inform AT&T's
Representative in the speediest manner possible. Notification shall be
followed by the prompt delivery to AT&T's Representative of the identification
credentials involved or a written statement of the reasons why the
identification credentials cannot be returned. VISUAL shall be liable for any
damage or loss sustained by AT&T if the identification credentials are not
returned to AT&T. until VISUAL has informed AT&T of the loss.
MAINTENANCE FACILITIES
AT&T shall provide VISUAL with adequate working space, including heat, light,
ventilation, electric current and outlets for use by VISUAL's maintenance
personnel. These facilities shall be within a reasonable distance of the
Equipment to be serviced and shall be provided at no charge to VISUAL. AT&T
shall not be responsible for any damage to VISUAL's Equipment or Materials
stored on AT&T's premises unless the damage results from AT&T's negligence.
PRECAUTIONS
VISUAL shall take care in all operations to safeguard people as well as
property and not to interfere with or curtail AT&T or customer operations at
the services site.
TECHNICAL INFORMATION, SOFTWARE AND PROGRAMMING AIDS
VISUAL shall furnish to AT&T on the agreed-upon delivery date without
additional charge any technical information, programs, routines, subroutines,
documentation, or related material it has or may develop or modify, necessary
for the general use or maintenance of Equipment under Maintenance Service,
which are normally so furnished to maintenance customers.
TITLE
Title to replacement, repair parts and components of Equipment shall vest in
AT&T upon installation. Title to enhancements and modifications and to
intellectual property rights therein (other than those originating as a result
of development Services funded by AT&T) shall remain in VISUAL. Title to
updates and modifications originating as a result of development Services
funded by AT&T and to intellectual property rights therein vest in accordance
with the applicable underlying contract between AT&T and VISUAL.
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Article V
General Provisions Applicable To
Entire Agreement
Contents
Clause PAGE
Assignment and Subcontracting 20
Assignment by AT&T 19
AT&T Announcement Plan 19
Benefits 25
Capacity Planning Review 19
CFC Packaging 20
Change 20
Changes to Product 20
Choice of Law 21
Clause Headings 21
Clean-up 21
Contents of Order 21
Continuing Availability 22
Compliance with Laws 21
Default 22
Discontinuance of Manufacture 23
Documentation 24
Effective Date and Duration of Agreement 18
Emergency 24
Entire Agreement 33
Force Majeure 24
Future Improvements 25
Government Contract Provisions 25
Heavy Metals in Packaging 25
Identification 26
Impleader 26
Indemnity 26
Infringement 27
Inspection 27
Insurance 27
Invoices and Terms of Payment 28
ISO Certification 28
Labor Relations 28
Mediation 29
Non-exclusive Market Rights 29
Notices 29
Order 18
Order Termination 30
Ordering Companies 18
Ozone Depleting Substances 30
Planning and Production Capacity 18
Quarterly Reports 30
Releases Void 30
Right of Entry and Plant Rules 30
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Sale & License 18
Scope of Agreement 18
Severability 31
Shipping 31
Standards 31
Survival of Obligations 32
Taxes 32
Timely Performance 32
Tools and Equipment 32
Use of Information 33
Variation of Quantity 33
VISUAL's Information 32
Waiver 33
Work Done by Others 33
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DEFINITIONS
The definitions of Article I apply to this Article.
ORDERING COMPANIES
AT&T may order under this Agreement. Also, those additional Associated
Entities, both U.S. and foreign, designated in writing by AT&T, may order
under this agreement.
Any order issued under this Agreement shall be a contractual relationship
between the ordering Company and Visual, and Visual shall only look to the
ordering Company for performance of Company's obligations under such an order.
SCOPE OF AGREEMENT
This Agreement is applicable to the procurement for internal use and resale by
AT&T from VISUAL of Equipment, Software, intellectual property rights,
Services, and Materials.
EFFECTIVE DATE AND DURATION OF AGREEMENT
This Agreement shall become effective as of the date set forth above and shall
continue in effect for a period of three (3) years (the initial term) and
thereafter until terminated by either VISUAL or AT&T upon delivery of thirty
(30) days' prior written notice to the other party. The amendment or
termination of this Agreement shall not affect the obligations of AT&T or
VISUAL under any then existing Order issued under this Agreement.
SALE & LICENSE
***
ORDER
Each Order shall reference this Agreement thereby incorporating the provisions
of this Agreement. If notice of rejection of an Order is not received by AT&T
within *** days from the date of issuance of an Order, the Order shall be
deemed to have been accepted by VISUAL.
PLANNING AND PRODUCTION CAPACITY
***
CAPACITY PLANNING REVIEW
***
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*** Confidential Information has been omitted and filed separately with the
Securities and Exchange Commission.
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AT&T ANNOUNCEMENT PLAN FOR VISUAL NETWORKS
AT&T & VISUAL will interface in implementing a marketing plan for use of VISUAL
Products in a managed DSU offer as outlined in Exhibit 3.
ASSIGNMENT BY AT&T
AT&T Corp. shall have the right to assign this Agreement or an Order and to
assign its rights and delegate its duties under this Agreement or an Order
either in whole or in part at any time and without VISUAL's consent to (i) any
present or future Associated Entity of AT&T Corp. which may not be a competitor
of VISUAL,, or (ii) any other entity resulting from the sale, reorganization
or other transfer of all or part of the assets of AT&T Corp. or any Associated
Entity. AT&T shall give VISUAL written notice of any assignment and
delegation. The assignment and delegation shall not affect any rights or
duties that VISUAL or AT&T may then or thereafter have as to Equipment,
Software, Services or Materials ordered by AT&T prior to the effective date of
the assignment and delegation. Upon acceptance of the assignment and
delegation and assumption of the duties under this Agreement or an Order, AT&T
shall be released and discharged, to the extent of the assignment and
delegation, from all further duties under this Agreement or the Order as to
Equipment, Software, Services or Materials so assigned.
ASSIGNMENT AND SUBCONTRACTING
VISUAL shall not assign any right or interest under this Agreement or an Order
(excepting monies due or to become due) nor delegate any Services or other
obligation to be performed or owed by VISUAL under this Agreement without the
prior written consent of AT&T, whose consent will not be unreasonably withheld.
Any attempted assignment, delegation, or subcontracting in contravention of
the above provisions shall be deemed void and ineffective. Any assignment of
monies shall be void and ineffective if any of the following occur: (1) AT&T
receives less than thirty (30) days' prior written notice of the assignment
from VISUAL or (2) the assignment attempts (i) to impose upon AT&T obligations
to the assignee additional to the payment of monies, or (ii) to preclude AT&T
from dealing solely and directly with VISUAL in all matters pertaining to this
Agreement including the negotiation of amendments or settlements of charges
due. All Services performed by VISUAL subcontractors at any tier shall be
deemed Services performed by VISUAL.
CFC PACKAGING
VISUAL warrants that all packaging materials furnished under this Agreement and
all packaging associated with Equipment, Software, or Materials furnished
under this Agreement were not manufactured using and do not contain
chlorofluorocarbons. "Packaging" means all bags, wrappings, boxes, cartons and
any other packing materials used for packaging. VISUAL agrees to indemnify,
defend (at AT&T's request), and hold harmless Indemnities from and against
any losses, damages, claims, demands, suits, liabilities, fines, penalties, and
expenses (including reasonable attorneys' fees) that arise out of or result
from AT&T's good faith reliance upon this warranty.
CHANGE
***
----------------------------------
*** Confidential Information has been omitted and filed separately with the
Securities and Exchange Commission.
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CHOICE OF LAW
The construction, interpretation and performance of this Agreement and all
transactions under it shall be governed by the laws of the State of New Jersey,
excluding its choice of law rules and excluding the Convention for the
International Sale of Goods. The provisions of the New Jersey Uniform
Commercial Code apply to this Agreement and all transactions under it,
including agreements and transactions relating to the furnishing of Services,
the Lease or rental of Equipment or Materials, the procurement of intellectual
property rights and the license of Software. VISUAL shall submit to the
jurisdiction of any court wherein an action is commenced against AT&T based on
a claim for which VISUAL has agreed to indemnify AT&T under this Agreement.
CLAUSE HEADINGS
The headings of the clauses in this Agreement are inserted for convenience only
and are not intended to affect the meaning or interpretation of this
Agreement.
CLEAN-UP
Upon completion of installation or removal of the Equipment or of any other
Services performed on AT&T's or its customer's premises, VISUAL shall, at its
expense, promptly remove all implements, surplus materials and debris used in
or produced by those activities.
COMPLIANCE WITH LAWS
VISUAL and all persons furnished by VISUAL shall comply, at their own expense,
with all applicable federal, state, local and foreign laws, ordinances,
regulations and codes
CONTENTS OF ORDER
1) EQUIPMENT, SOFTWARE OR MATERIALS
An Order for the purchase of Equipment, Software, or Materials shall contain
the following:
1. The incorporation by reference of this Agreement;
2. A complete list of the Equipment or Materials to be purchased or
Software to be licensed specifying the quantity, type, model, feature
description, list price, and purchase price to be paid (net of
discount) and if applicable the name or names of the manufacturer and
model number or numbers of the equipment with which the Software shall
be compatible;
3. The invoice address;
4. The location at which the Equipment or Materials are to be delivered
or installed including ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ and state;
5. The ship date
6. A complete list of the Services and associated costs, if any, such as,
but not limited to, training, if any required, and a schedule of their
performance;
7 Any other special provisions agreed upon by both parties.
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pg 21
Ordered items shall be shipped complete on date(s) specified in an Order unless
otherwise agreed to by AT&T.
CONTINUING AVAILABILITY
Except as set forth in the clause DISCONTINUANCE OF MANUFACTURE, VISUAL agrees
to offer for sale to AT&T, during the Term of this Agreement***:
(a) Equipment and Software conforming to the Specifications set
forth in this Agreement or in an Order;
(b) maintenance, replacement and repair parts which are
functionally equivalent to those in the Equipment covered by
this Agreement (the "Parts"); and
(c) support Services which are equivalent to the support Services
set forth in this Agreement, or support services as may be
otherwise agreed upon by the parties.
The prices for such Equipment, Software, Parts, or Services shall be the prices
set forth in this Agreement and the Appendices hereto during the Term. Prices
for Equipment, Software, Parts, or Services following the end of the Term shall
be the prices in VISUAL 's then current agreement with AT&T for said Equipment,
Software, Parts, or Services, or if no such agreement exists, VISUAL 's then
current Service Provider Standard Pricing Schedule prices or other prices
agreed upon by the parties. If the Equipment, Software, Parts, or Services is
not offered on VISUAL 's then current price Service Provider Standard Pricing
Schedule or if the parties fail to agree on prices, such Equipment, Software,
Parts, or Services shall be made available to AT&T at reasonable prices for
said Equipment, Software, Parts, or Services at the time for delivery.
DEFAULT
If VISUAL shall be in material breach or default of any of the provisions of
this Agreement and the breach or default shall continue for a period of THIRTY
(30) days after AT&T gives written notice to VISUAL, then in addition to all
other rights and remedies which AT&T may have at law or equity or otherwise,
AT&T shall have the right to cancel this Agreement without any charge to, or
obligation or liability of, AT&T. If AT&T shall be in material breach or
default of any of the provisions of this Agreement and the breach or default
shall continue for a period of THIRTY (30) days after VISUAL gives written
notice to AT&T, then in addition to all other rights and remedies which
VISUAL may have at law or equity or otherwise, VISUAL shall have the right to
cancel this Agreement without any charge to, or obligation or liability of,
VISUAL .
DISCONTINUANCE OF MANUFACTURE
VISUAL shall provide AT&T at least six (6) months prior written notice of its
intent to discontinue manufacture ("MD") of any Equipment or Software covered
by this Agreement. VISUAL shall continue to provide spare parts as well as
repair and/or refurbish the MD Equipment or Software for a period of five
----------------------------------
*** Confidential Information has been omitted and filed separately with the
Securities and Exchange Commission.
22
pg 22
(5) years from the date of VISUAL's written notice to AT&T of discontinuance
of manufacture. In addition, AT&T shall have the opportunity to make an
end-of-life buy of such MD Equipment or Software for a period of up to six (6)
months from the date of VISUAL 's MD notice. VISUAL shall fill all such
end-of-life buy Orders placed by AT&T in accordance with its then-current lead
times and manufacturing capabilities. Any changes to quantities in such Orders
must be mutually agreed to by the parties.
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pg 23
DOCUMENTATION
1) VISUAL agrees to furnish at no charge, with each and every shipment to
AT&T, standard user documentation necessary and required for AT&T to install,
operate and maintain the Equipment, Software and Materials purchased hereunder
in paper or electronic form as requested by AT&T; and to update documentation
to reflect changes and updates in Equipment, Software and Materials. AT&T may
reproduce such documentation for internal use, provided such reproduced
documentation contains all appropriate Copyrights and Trademarks of VISUAL .
Such Equipment and Materials will include paper documentation for installation.
VISUAL will provide AT&T with electronic formatting documentation containing
these Copyrights and Trademarks.
2) VISUAL agrees to provide current supporting documentation, for use by AT&T
in responding to RFP's, regarding the capabilities, interfaces, power, heat,
foot print, Mean Time Between Failures, and management capabilities of VISUAL's
Equipment, Software and Materials covered under this Agreement.
EMERGENCY
VISUAL shall use commercially resonable efforts to assist AT&T in obtaining
components and equipment compatible with the Equipment in an emergency.
FORCE MAJEURE
Neither party shall be held responsible for any delay or failure in performance
of any part of an Order to the extent the delay or failure is caused by fire,
flood, explosion, war, strike, embargo, government requirement, civil or
military authority, act of God, or other similar cause beyond its control and
without the fault or negligence of the delayed or nonperforming party or its
subcontractors ("Force Majeure Conditions"). Notwithstanding the foregoing,
VISUAL's liability for loss or damage to AT&T's Equipment, Software, Materials
or other tangible article in VISUAL's possession or control shall not be
modified by this clause. If any Force Majeure Condition occurs, the party
delayed or unable to perform shall give immediate notice to the other party,
stating the nature of the Force Majeure Condition and any action being taken to
avoid or minimize its effect, and the party affected by the other's delay or
inability to perform may elect to:
1. suspend this Agreement or the Order for the duration of the Force Majeure
Condition, and
a. at the affected party's option, as applicable:
i. obtain a Lease elsewhere for equipment to perform the
functions of the Equipment leased under the Order and
deduct from the duration of the Order the time for which
such other Lease was obtained, or
ii. obtain a license elsewhere for Software to perform the
functions of the Software licensed under the Order and
deduct from the duration of the Order the time for which
such other license was obtained, or
iii. buy or sell elsewhere Equipment, Materials or Services to
be bought or sold under an Order and deduct from any
commitment the Equipment, Materials or Services bought
or sold or for which commitments have been made
elsewhere, and
b. resume performance under the Order for the remainder of the
duration (once the Force Majeure Condition ceases) with an
option in the affected party to extend such duration up to
the length of time the Force Majeure Condition endured and/or,
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pg 24
2. terminate the Order (at no charge) as to any Equipment, Software or
Materials which have not been shipped or as to any Services which has not
been commenced, when the delay or nonperformance continues for a period of
at least twenty five (25) days
Unless written notice is given within twenty five ( 25 ) days after the
affected party is notified of the Force Majeure Condition, paragraph 1 of this
section shall be deemed selected.
FUTURE IMPROVEMENTS
At least forty-five (45) days before VISUAL publicly announces improvements,
enhancements or new features, VISUAL shall advise AT&T of such features and
advantages.
BENEFITS
VISUAL assures AT&T that all prices, terms, warranties and benefits granted to
AT&T for like products and like quantities by VISUAL for the Equipment,
Software, Materials, Services and improvements, are at least as favorable as
those now offered by VISUAL to any of its commercial customers. If, during the
duration of this Agreement, VISUAL should enter into a supply arrangement with
any other customer for the Equipment, Software, and Services provided
hereunder with a third party upon terms that, with respect to purchase prices
or other items which could provide a change in relative benefits, are more
favorable to such third party than the overall terms contained herein, then
VISUAL agrees to amend this Agreement to provide AT&T with the same or
comparable overall terms.
GOVERNMENT CONTRACT PROVISIONS
The following provisions regarding equal opportunity, and all applicable laws,
rules, regulations and executive orders specifically related thereto,
including applicable provisions and clauses from the Federal Acquisition
Regulation and all supplements thereto, are incorporated in this Agreement as
they apply to Services performed under specific U.S. Government contracts: 41
CFR 60-1.4, Equal Opportunity; 41 CFR 60-1.7, Reports and Other Required
Information; 41 CFR 60-1.8, Segregated Facilities; 41 CFR 60-250.4, Affirmative
Action for Disabled Veterans and Veterans of the Vietnam Era (if in excess of
$10,000); and 41 CFR 60-741.4, Affirmative Action for Disabled Workers (if in
excess of $2,500), wherein "contractor" and "subcontractor" mean "VISUAL".
In addition, Orders placed under this Agreement containing a notation that the
Equipment, Software, Services or Materials are intended for use under U.S.
Government contracts shall be subject to the other U.S. Government provisions
printed, typed or written thereon, or on the reverse side thereof, or in
attachments thereto.
HEAVY METALS IN PACKAGING
VISUAL warrants to AT&T that no lead, cadmium, mercury or hexavalent chromium
have been intentionally added to any packaging or packaging component (as
defined under applicable laws) to be provided to AT&T under this Agreement.
VISUAL further warrants to AT&T that the sum of the concentration levels of
lead, cadmium, mercury and hexavalent chromium in the package or packaging
component provided to AT&T under this Agreement or an Order does not exceed one
hundred (100) parts per million. Upon request, VISUAL shall provide to AT&T
Certificates of Compliance certifying that the packaging and/or packaging
components provided under this Agreement are in compliance with the
requirements set forth above in this clause. VISUAL agrees to indemnify,
defend (at AT&T's request), and hold harmless Indemnities (all hereinafter
referred to in this clause as "AT&T") from and against any
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pg 25
losses, damages, claims, demands, suits, liabilities, fines, penalties, and
expenses (including reasonable attorneys' fees) that arise out of or result
from AT&T's good faith reliance upon said warranties or any certifications of
compliance.
IDENTIFICATION
VISUAL shall not, without AT&T's prior written consent, engage in advertising,
promotion or publicity related to this Agreement, or make public use of any
Identification in any circumstances related to this Agreement. VISUAL shall
remove or obliterate any Identification prior to any use or disposition of any
Equipment, Software or Materials rejected or not purchased, licensed or leased
by AT&T, and failing to do so, shall indemnify, defend (at AT&T's request) and
hold harmless Indemnities (all hereinafter referred to in this clause as
"AT&T") from and against any losses, damages, claims, demands, suits,
liabilities, fines, penalties and expenses (including reasonable attorneys'
fees) arising out of VISUAL's failure to so remove or obliterate.
IMPLEADER
VISUAL shall not implead or bring any action against AT&T or its customers or
the employees of AT&T or its customers based on any claim by a person for
personal injury or death to an employee of AT&T or its customers occurring in
the course or scope of employment that arises out of Equipment, Software,
Services or Materials furnished under this Agreement or an Order.
INDEMNITY
All persons furnished by VISUAL shall be considered solely VISUAL's employees
or agents, and VISUAL shall be responsible for payment of all unemployment,
social security and other payroll taxes, including contributions when required
by law. VISUAL shall indemnify, defend (at AT&T's request), and hold
harmless Indemnities from and against any losses, damages, claims, demands,
suits, liabilities, fines, penalties, and expenses (including reasonable
attorneys' fees) that do, or allegedly do, arise out of or result from:
1. injuries or death to persons or damage to property, including
theft, in any way arising out of, occasioned by, caused or alleged to have
been caused by the performance of the Services performed by VISUAL or persons
furnished by VISUAL ,
2. assertions under Workers' Compensation or similar acts made by
persons furnished by VISUAL or by any subcontractor, or by reason of any
injuries to persons for which AT&T would be responsible under Workers'
Compensation or similar acts if the persons were employed by AT&T,
3. any failure on the part of VISUAL to satisfy all claims
against it for labor, equipment, materials, intangible items and other
obligations relating directly or indirectly to the performance of the Services;
or
4. any failure by VISUAL to perform VISUAL's obligations under
this clause or the Insurance clause.
VISUAL shall defend Indemnities, at AT&T's request, against any of these
claims, demands or suits. AT&T shall notify VISUAL within a reasonable time
of any written claims or demands against AT&T for which VISUAL is responsible
under this clause.
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pg 26
INFRINGEMENT
VISUAL shall indemnify, and hold harmless Indemnities from and against any
losses, damages, liabilities, fines, penalties, and expenses (including
reasonable attorneys' fees) that arise out of or result from any proved claim
(1) of infringement of any patent, copyright, trademark or trade secret right,
or other intellectual property right, private right, or any other proprietary
or personal interest, and (2) related by circumstances to the existence of
this Agreement or an Order or performance under or in contemplation of either
of them ("Infringement Claim"). However, if the Infringement Claim arises
solely from VISUAL's adherence to AT&T's written instruction regarding
Services or tangible or intangible goods provided by VISUAL ("Items") and if
the Items are not (1) commercial items available on the open market or the same
as such items, or (2) items of VISUAL's designated origin, design or
selection, AT&T shall indemnify VISUAL. AT&T or VISUAL (at AT&T's request)
shall defend or settle, at its own expense, any demand, action or suit on any
Infringement Claim for which it is the indemnitor under the preceding
provisions and shall timely notify the other of any assertion against it of
any Infringement Claim and shall cooperate in good faith with the other to
facilitate the defense of any such claim.
INSPECTION
AT&T reserves the right to witness testing procedures and inspect Equipment,
Software and Materials furnished under this Agreement or an Order. AT&T shall
also have access to VISUAL's facilities for Quality System Reviews. If such
inspection at VISUAL's manufacturing facility is requested by AT&T, VISUAL's
shall notify AT&T when Equipment, Software or Materials are ready for
inspection. Arrangements will be mutually agreed upon between VISUAL's and
for inspection prior to shipment. VISUAL's shall make available to AT&T, on a
mutually-agreed to scheduled basis, without charge, its current production
testing facilities and personnel as may be requested by AT&T to inspect
Equipment, Software and Materials to determine whether they meet the
requirements of the Specifications.
INSURANCE
VISUAL shall maintain and cause VISUAL's subcontractors to maintain during the
duration of this Agreement all of the following:
1. Workers' Compensation insurance as prescribed by the law of the state or
nation in which the Services is performed;
2. Employer's liability insurance with limits of at least $500,000 for each
occurrence;
3. comprehensive automobile liability insurance if the use of motor vehicles
is required, with limits of at least $1,000,000 combined single limit for
bodily injury and property damage for each occurrence;
4. Commercial General Liability ("CGL") insurance, including Products Blanket
Contractual Liability and Broad Form Property damage, with limits of at
least $1,000,000 combined single limit for bodily injury and property
damage for each occurrence;
5. if the furnishing to AT&T (by sale or otherwise) of Equipment, products or
Materials is involved, CGL insurance endorsed to include products
liability and completed operations coverage in the amount of $5,000,000
for each occurrence; and
6. Errors and Omissions insurance in the amount of at least $1,000,000 per
claim with an annual aggregate of at least $3,000,000 inclusive of legal
defense costs.
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pg 27
VISUAL 's insurer(s) and anyone claiming by, through, under or in VISUAL 's
behalf shall have no claim, right of action or right of subrogation against
AT&T and its customers based on any loss or liability insured against under
the foregoing insurance. VISUAL and VISUAL's subcontractors shall furnish
prior to the start of Services certificates or adequate proof of the foregoing
insurance including, if specifically requested by AT&T, copies of the
endorsements and insurance policies. AT&T shall be notified in writing at
least thirty (30) days prior to cancellation of or any change in the policy.
INVOICES AND TERMS OF PAYMENT
Invoices for the charges specified in an Order shall be submitted by VISUAL to
the address specified in the Order. Unless payment terms more favorable to
AT&T are stated on VISUAL 's invoices and AT&T elects to pay on such terms,
undisputed invoices for purchased Equipment, Materials, annual Maintenance
Services or licensed Software shall be payable no later than the *** day after
(a) the date of receipt of undisputed invoices or (b) the date of acceptance of
the Equipment or Software or Materials or delivery of Materials at AT&T's
dock, whichever is later.
VISUAL shall (1) render proper original invoices showing Order number, through
routing, weight and unit price per the denomination specified in the Order,
(2) render separate invoices for each shipment and (3) forward ▇▇▇▇ of lading
and shipping notices with invoice. If prepayment of transportation charges is
authorized, VISUAL shall include the transportation charges from the FOB point
to the destination as a separate item on the invoice stating the name of the
carrier used.
ISO CERTIFICATION
AT&T recognizes that VISUAL intends to be ISO 9000 registered. Therefore,
under this Agreement, VISUAL shall have the portion of VISUAL 's quality system
that applies to the Equipment, Materials, and Services covered under this
Agreement registered to the then current and applicable ISO 9000 Series
standards (which may have a different nomenclature in applicable other
countries). Such registration must be made by an accredited third party
registrar(s).
VISUAL warrants that VISUAL is in the process of obtaining ISO certification
and shall receive such certification no later than March 31, 1998.
VISUAL shall provide AT&T's representative (if requested) with a copy of the
appropriate certificates of registration issued by such third party
registrar(s). If VISUAL fails, for any reason, to obtain or maintain or
provide to AT&T certificates of registration as set forth above, or fails to
become certified in countries requested by AT&T, then AT&T shall have the
right, and without any cost to or obligation or liability of AT&T, to terminate
this Agreement and any outstanding orders placed under this Agreement.
LABOR RELATIONS
VISUAL shall be responsible for its labor relations with any labor organization
represented among its employees and shall be responsible for adjusting all
disputes between itself and its employees or any union representing such
employees. The provisions of this paragraph shall be extended by VISUAL to all
subcontractors hereunder. VISUAL shall immediately notify AT&T if VISUAL has
knowledge of any actual or potential labor dispute which is delaying or could
delay the timely performance of this Agreement.
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*** Confidential Information has been omitted and filed separately with the
Securities and Exchange Commission.
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MEDIATION
If a dispute arises out of or relates to this Agreement, or its breach, and the
parties have not been successful in resolving the dispute through direct
negotiation, the parties shall attempt to resolve the dispute through non-
binding mediation by submitting the dispute to a sole mediator selected by the
parties or, at the option of a party, to mediation by the American Arbitration
Association ("AAA"). Each party shall bear its own expenses and an equal
share of the expenses of the mediator and the fees of the AAA. The parties,
their representatives, other participants and the mediator shall hold in
confidence the existence, content and result of the mediation. If the dispute
is not resolved by the mediation, the parties shall have the right to resort to
any remedies permitted by law. Defenses based on the passage of time are
suspended upon submitting the dispute to the mediator and during the mediation.
The time period during the mediation shall be disregarded in calculating such
defenses. Nothing in this clause shall be construed to preclude any party
from seeking injunctive relief in order to protect its rights during
mediation. A request by a party to a court for injunctive relief shall not be
deemed a waiver of the obligation to mediate.
NON-EXCLUSIVE MARKET RIGHTS
This Agreement neither grants to VISUAL an exclusive right or privilege to
sell, license or Lease to AT&T any or all Equipment, Software, Services or
Materials described in this Agreement which AT&T may require, nor requires the
purchase, license or lease of any Equipment, Software, Services or Materials
from VISUAL by AT&T. AT&T may contract with other manufacturers for the
acquisition of comparable Equipment, Software, Services or Materials.
Purchases, licenses or leases by AT&T under this Agreement shall be initiated
by the placement of an Order by AT&T and the Order shall not restrict the
right of AT&T to cease acquisition nor require AT&T to continue any level of
acquisition from VISUAL .
NOTICES
Any notice, demand or other communication (other than an Order) required, or
which may be given, under this Agreement shall, unless specifically otherwise
provided in this Agreement, be in writing and shall be given or made by
overnight courier service, confirmed facsimile, registered or certified mail
(return receipt) or other media which provides the sender with written record
of delivery, and shall be addressed to the respective parties as follows:
To VISUAL : VISUAL
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇
▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Fax ( ▇▇▇) ▇▇▇-▇▇▇▇
To AT&T: AT&T Corp.
***
▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
***
----------------------------------
*** Confidential Information has been omitted and filed separately with the
Securities and Exchange Commission.
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The notice, demand or other communication (other than an Order) shall be deemed
to have been given or made when picked up by the delivery services mentioned
above. The above addresses may be changed at any time by giving thirty (30)
days prior written notice.
ORDER TERMINATION
An Order of standard Equipment may be terminated by AT&T, at no charge, at any
time prior to shipment from VISUAL's plant or commencement of Services.
Orders for non-standard Equipment may be terminated, at no charge, *** days in
advance of required ship date. In the event that AT&T desires to cancel
non-standard Equipment in less than *** days from required ship date, Visual
agrees to good faith efforts to accept that cancellation at no charge to AT&T.
AT&T shall notify VISUAL in writing of any such termination for either standard
or non-standard Equipment.
At any time, AT&T may terminate individual Orders for Maintenance Services, at
no charge, provided AT&T gives at least *** days prior written notice to
VISUAL. If the charges for a terminated Order were paid annually in advance,
VISUAL shall promptly refund to AT&T the unused prorata portion of the charges.
OZONE DEPLETING SUBSTANCES
VISUAL warrants and certifies that all Equipment, Software, and Materials,
including packaging and packaging components, provided to AT&T under this
Agreement have been accurately labeled, in accordance with the requirements of
40 CFR Part 82 entitled "Protection of Stratospheric Ozone, Subpart E - The
labeling of Products Using Ozone Depleting Substances." VISUAL agrees to
indemnify, defend and hold harmless Indemnities from and against any losses,
damages, claims, demands, suits, liabilities, fines, penalties, and expenses
(including reasonable attorneys' fees) that may be sustained by reason of
VISUAL 's non-compliance with such applicable law or the terms of this
warranty and certification.
QUARTERLY REPORTS
VISUAL shall render quarterly reports covering Orders placed under this
Agreement for Equipment, Software, Services and Materials as early in the
subsequent quarter as possible. This report shall be submitted in a mutually
agreed upon format.
RELEASES VOID
Neither party shall require (i) waivers or releases of any personal rights, or
(ii) execution of documents which conflict with the provisions of this
Agreement, from employees, representatives or customers of the other in
connection with visits to its premises, and no such releases, waivers, or
documents shall be pleaded by them or third persons in any action or
proceeding.
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*** Confidential Information has been omitted and filed separately with the
Securities and Exchange Commission.
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RIGHT OF ENTRY AND PLANT RULES
Each party shall have the right to enter the premises of the other party during
normal business hours with respect to the performance of this Agreement,
subject to all plant rules and regulations, security regulations and
procedures and U.S. Government clearance requirements, if applicable. VISUAL
shall become acquainted with conditions governing the delivery, receipt and
storage of Materials and Equipment at the site of the Services so that VISUAL
will not interfere with AT&T's operations. Storage space will not necessarily
be provided adjacent to the site of the Services. Therefore, VISUAL shall be
expected to select, uncrate, remove and transport Materials and Equipment from
the storage areas provided. AT&T is not responsible for the safekeeping of
VISUAL 's property on AT&T's premises. VISUAL shall not stop, delay or
interfere with AT&T's work schedule without the prior approval of AT&T's
Representative. VISUAL shall provide and maintain sufficient covering and
take any other precautions necessary to protect AT&T's stock, equipment and
other property from damage due to VISUAL's performance of the Services.
SEVERABILITY
If any of the provisions of this Agreement shall be invalid or unenforceable,
the invalidity or unenforceability shall not invalidate or render
unenforceable the entire Agreement or Order, but rather the entire Agreement or
Order shall be construed as if not containing the particular invalid or
unenforceable provision or provisions, and the rights and obligations of the
parties shall be construed and enforced accordingly.
SHIPPING
VISUAL shall do all of the following:
1. Ship the Equipment, Software and Materials to the site designated in an
Order by the date set forth in the Order in accordance with specific
shipping instructions,
2. Place the Order number on all subordinate documents,
3. Enclose a packing memorandum with each shipment, and when more than one
(1) package is shipped, identify the one containing the memorandum,
4. ▇▇▇▇ the Order number on all packages and shipping papers, and.
5. Furnish adequate protective packing at no additional charge.
If VISUAL does not comply with the F.O.B. terms of an Order or with AT&T's
shipping or routing instructions, VISUAL authorizes AT&T to deduct from any
invoice any increased costs incurred by AT&T as a result of VISUAL 's
noncompliance.
STANDARDS
Employees of VISUAL with records of criminal convictions, other than minor
traffic violations, shall not be assigned to AT&T's premises until a detailed
statement of the circumstances is furnished to AT&T for its review, and AT&T
has given its written approval of such assignment. In fulfilling VISUAL 's
obligations
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under this clause, VISUAL shall comply fully with all laws relating to the
making of investigative reports and the disclosure of information contained
therein.
VISUAL 'S INFORMATION
VISUAL shall not provide nor have they provided in contemplation of, this
Agreement any information or medium, unless VISUAL has the right to do so, and
VISUAL shall not view any of the information as confidential or proprietary.
Further, there are no limitations on the Use of Software except as otherwise
agreed to in the OPERATING SYSTEM SOFTWARE clause in Article II and in the
LICENSE GRANT and INTELLECTUAL PROPERTY RIGHTS clauses in Article III.
Notwithstanding the above, AT&T will protect Software received from VISUAL
with the same degree of care that AT&T normally uses to protect its own
Software that it does not wish to become public knowledge, and AT&T will advise
any recipient of such Software of that obligation.
SURVIVAL OF OBLIGATIONS
The obligations of the parties under this Agreement, which by their nature
would continue beyond the termination, cancellation or expiration of this
Agreement, including, by way of illustration only and not limitation, those in
the COMPLIANCE WITH LAWS, IDENTIFICATION, IMPLEADER, INDEMNITY, INFRINGEMENT,
INSURANCE, RELEASES VOID, USE OF INFORMATION and WARRANTY clauses, shall
survive termination, cancellation or expiration of this Agreement.
TAXES
AT&T shall reimburse VISUAL for only State and local sales and use taxes, as
applicable, with respect to transactions under this Agreement or an Order
unless AT&T advises Visual that an exemption applies. Taxes payable by AT&T
shall be billed as separate items on VISUAL's invoices and shall not be
included in VISUAL's prices. AT&T shall have the right to have VISUAL
contest any such taxes that AT&T deems improperly levied at AT&T's expense and
subject to AT&T's direction and control.
TIMELY PERFORMANCE
If VISUAL has knowledge that anything prevents or threatens to prevent the
timely performance of the Services under this Agreement, VISUAL shall
immediately notify AT&T's Representative thereof and include all relevant
information concerning the delay or potential delay.
TRAINING AND TECHNICAL SERVICE
VISUAL shall provide, (a) assistance and advice, as may be reasonably
requested by AT&T necessary to assist in the use of the Equipment and Software
and (b) any training as it normally provides without charge to users of the
Equipment or Software.
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TOOLS AND EQUIPMENT
Unless otherwise specifically provided in an Order, VISUAL shall be responsible
for providing all labor, tools and equipment ("Tools") for performance of an
Order. If VISUAL actually uses any Tools owned or rented by AT&T or its
customers, VISUAL acknowledges that VISUAL accepts the Tools "as is, where is"
and that neither AT&T nor its customers have any responsibility for the
condition or state of repair of the Tools and that VISUAL shall have risk of
loss and damage to such Tools. VISUAL shall not remove the Tools from AT&T's
or its customers' premises and shall return the Tools to AT&T or its customers
upon completion of use, or at such earlier time as AT&T or its customers may
request, in the same condition as when received by VISUAL, reasonable wear
and tear excepted.
USE OF INFORMATION
VISUAL shall view as AT&T's property, any Information or Medium, however
conveyed, provided to, or acquired by VISUAL ,under or in contemplation of
this Agreement or an Order. VISUAL shall, at no charge to AT&T, and as AT&T
directs, destroy or surrender to AT&T promptly at its request any such Medium
or any copy of such Information. VISUAL shall keep Information confidential
and use it only in performing under this Agreement or an Order and obligate its
employees, subcontractors and others working for it to do so, provided that
the foregoing shall not apply to Information previously known to VISUAL free
of obligation, or made public through no fault imputable to VISUAL .
VARIATION OF QUANTITY
AT&T assumes no liability for Equipment, Software, or Materials produced,
processed or shipped in excess of the amount specified in any Order placed
with VISUAL.
WAIVER
The failure of either party at any time to enforce any right or remedy
available to it under this Agreement or otherwise with respect to any breach
or failure by the other party shall not be construed to be a waiver of that
right or remedy with respect to any other breach or failure by the other party.
WORK DONE BY OTHERS
If any part of the Services performed by VISUAL is dependent upon Services done
by others, VISUAL shall inspect and promptly report to AT&T any defect that
renders the other work unsuitable for VISUAL's proper performance. VISUAL's
silence shall constitute approval of the other work as fit, proper and suitable
for VISUAL's performance of the Services or other work.
ENTIRE AGREEMENT
This Agreement shall incorporate the typed or written provisions on AT&T's
Orders issued pursuant to this Agreement and shall constitute the entire
agreement between the parties with respect to the subject matter of this
Agreement and the Order(s) and shall not be modified or rescinded, except by a
writing signed by duly authorized representatives of VISUAL and AT&T.
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The provisions of this Agreement shall apply to:
1. any Orders issued pursuant to this Agreement, and
2. any Services, Material, Equipment, intellectual property
rights and Software or other Information furnished under, in
performance of, pursuant to, or in contemplation of, this
Agreement.
Printed provisions on the reverse side of AT&T's Orders (except as specified
otherwise in this Agreement) and all provisions on VISUAL's forms shall be
deemed deleted. Additional or different provisions inserted in this Agreement
by VISUAL, or deletions thereto, whether by alterations, addenda, or
otherwise, shall be of no force and effect, unless expressly consented to by
AT&T in writing. Estimates or forecasts furnished by AT&T shall not
constitute commitments. The provisions of this Agreement supersede all
contemporaneous oral agreements and all prior oral and written quotations,
communications, agreements and understandings of the parties with respect to
the subject matter of this Agreement.
APPENDICES
The following Appendices are attached and by this reference are made a part of
this Agreement:
EXHIBIT 1 SPECIFICATIONS
EXHIBIT 2 SERVICE LEVEL AGREEMENT
EXHIBIT 3 AT&T ANNOUNCEMENT PLAN FOR VISUAL NETWORKS
EXHIBIT 4 VISUAL NETWORKS SERVICE PROVIDER STANDARD PRICING SCHEDULE
AGREED:
VISUAL NETWORKS, INC. AT&T CORP.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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(signed) (signed)
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇
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(printed) (printed)
Title: President Title: Director
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Date: December 3, 1997 Date: December 2, 1997
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