1
An asterick(*) indicates that confidential portions of this exhibit have been
omitted pursuant to Rule 406 under the Securities Act of 1933, as amended. The
confidential portions so omitted have been filed separately with the Securities
and Exchange Commission pursuant to Rule 406.
EXHIBIT 10.8
Agreement Number: KC103251ML
PROCUREMENT AGREEMENT
BETWEEN SPRINT\UNITED MANAGEMENT COMPANY
AND
CIENA CORPORATION
THIS PROCUREMENT AGREEMENT ("Agreement"), made effective as of the
14 day of December, 1995 ("Effective Date"), by and between Sprint\United
Management Company, a Kansas corporation, having its principal place of
business at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter
referred to as "SUMC"), and Ciena Corporation, a Delaware corporation, having
its principal place of business at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(hereinafter referred to as "Supplier").
WHEREAS, SUMC is a subsidiary of Sprint Corporation, a Kansas
corporation ("Sprint Corp."), and provides certain administrative and
purchasing services for Affiliated Entities (as defined in Article 25 ) of
Sprint Corporation. (Sprint Corp., together with SUMC and Affiliated Entities,
is hereinafter collectively referred to as "Sprint");
WHEREAS, Supplier is able and willing to develop, build, deliver,
install and support the Equipment as required by this Agreement and Sprint
desires to retain Supplier on such terms:.
NOW, THEREFORE, in consideration of the foregoing premises and the
representations, warranties, covenants and agreements herein contained, the
parties agree as follows:
DEFINITIONS: Defined terms and definitions are set forth in Article 25 of
this Agreement.
ARTICLE 1. SUPPLIERS DELIVERABLES
1.1 Technical Requirements, Quantities, Terms
Supplier agrees to provide Deliverables which satisfy and
perform in accordance with the Technical Requirements set forth in Exhibit B,
in the quantities specified by Sprint in Purchase Orders in accordance with the
terms and conditions set forth in this Agreement and Purchase Orders.
1.2 Sprint Testbed
(a) Supplier agrees to supply Sprint *
, such production Equipment as is outlined in Section 1.2 (b) below for one
testbed ("Sprint Testbed") to be located at a site designated by Sprint and
communicated to Supplier on or before the Effective Date.
(b) The Sprint Testbed Equipment shall initially include
a minimum of: * end terminals equipped with * payload
information carriers (channels) each and at least * intermediate
optical line amplifiers all of which satisfy and perform in accordance with
the Technical Requirements are configured with Software Revision Levels and
Equipment Revision Levels reasonably determined by Sprint so long as the
determined configuration and Revision Levels are available from Supplier at
that time ("Configuration"). * no * for any * installed in the Sprint
Testbed. Supplier also agrees to provide Sprint with Ciena's EMS Software to
enable Sprint to configure and provision functions for Equipment during
testing.
(c) Supplier agrees to supply and maintain for the * ,
any Licensed Software needed to maintain the Sprint Testbed Equipment,
including any additional intermediate line amplifiers purchased by Sprint from
Supplier, in compliance with the Technical Requirements and Configuration.
Supplier shall assemble the Licensed Software and Equipment into such
Configuration as is stated in the applicable Purchase Order.
(d) Except as stated in 1.2 (b) above, any Equipment
Sprint requests Supplier to add to the Sprint Testbed shall be *
2
1.3 Sprint Soak Tests
Sprint shall conduct Soak Tests * First
Installations of Systems of end terminal to end terminal route segments
designated by Sprint to demonstrate field performance of the Equipment, as part
of the Final Acceptance in accordance with paragraph 3.6 of Exhibit B. Soak
Tests will encompass testing the Equipment for both the A (working) and B
(standby) Systems and will be conducted on the following Sprint SONET routes
for the timeframes specified below:
ROUTE CONFIGURATION SOAK DURATION
(a) * * *
(b) * * *
(c) * * *
1.4 Supplier Testbed
(a) Supplier shall allow Sprint use of at Supplier's
premises, an Equipment testbed meeting (i) the requirements set forth in
Section 1.2(b), and (ii) configured with an additional * , ("Supplier
Testbed"). During the Initial Term of the Agreement * . Sprint shall
give reasonable Notice of its use of Supplier's Testbed.
(b) The Supplier Testbed shall be maintained by the
Supplier * . At Sprint's request, Supplier agrees to install and
integrate SONET Network Elements supplied to Sprint by another vendor needed
for FAT and Interoperability testing, up to and including the most recent such
revision levels deployed in Sprint's network as directed by Sprint. If Sprint
requests the integration of third-party equipment into Suppliers Testbed,
Sprint shall provide such equipment at no cost to Supplier.
1.5 Supplier shall, if requested by Sprint, assist Sprint
personnel in the installation and maintenance of the Equipment and any Software
and Equipment included in the Sprint Testbed and in the field. Such assistance
will include but not be limited to providing information or help regarding
installation procedures, testing and acceptance procedures, provisioning
procedures, and general operational maintenance procedures. Such assistance
shall be provided * . Supplier shall make available to Sprint, after
the First Installations, additional technical support at the Prices set forth
in Exhibit C.
1.6 Sprint shall perform validation and acceptance testing as set
forth in Article 6 of this Agreement and Exhibit B.
1.7 Supplier shall notify Sprint within twenty four (24) hours,
upon learning of any material defects in any of the Deliverables.
1.8 All Deliverables, including purchased spare parts, shall be
newly manufactured.
1.9 (a) Supplier shall support all Licensed Software and
Equipment * . Each Software Revision level shall have Backward
Compatability with all existing in-service Equipment and with all Software
Revision Levels delivered by Supplier to Sprint within the previous two (2)
years.
(b) If Supplier discontinues manufacture and/or support
of the Equipment, Supplier shall at Sprint's request, to the extent of
Supplier's legal rights to do so, without obligation or charge to Sprint and
without limiting Sprint's other rights or remedies, deliver to Sprint all of
the technical information owned and possessed by Supplier relating to the
manufacture and/or support of the Equipment, in the form being used in
Supplier's factories in its
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Agreement Number: KC103251ML
day-to-day operations of manufacture, or arrange for the replacement and repair
spare parts for the Equipment to Sprint's reasonable satisfaction. Sprint may
use such technical information only to manufacture, have manufactured, obtain
such spare parts from other sources in connection with the Equipment and System
Software obtained from Supplier and owned and operated or licensed by Sprint.
Title to Suppliers technical information and intellectual property rights shall
remain with Supplier.
1.10 Except as provided in Section 16.3(e), during the term of
this Agreement, * .
ARTICLE 2. QUANTITIES AND DELIVERY SCHEDULES
2.1 During the Term of this Agreement, Sprint shall furnish
Supplier a monthly Projection Schedule ("Schedule") setting forth a rolling
* month forecast of the respective quantities of each type of
Deliverable that Sprint then estimates it will require for each month in the
immediately succeeding * month period. The Schedule for the immediately
succeeding * period following the date the Schedule is submitted to Supplier
("Commitment") shall be considered a firm commitment by Sprint to order the
forecasted Deliverables. In the event that Supplier indicates that it cannot
meet Sprint's entire Commitment, Sprint shall have the right to reduce the
Commitment and seek alternative sources for like Deliverables * .
Notwithstanding the provisions set forth in Article 7, in the event that Sprint
.fails to submit Purchase Orders for at least the respective forecasted
quantity of Deliverables for the Commitment period by the last day of the month
that the Deliverables are forecasted to have been delivered to Sprint
("Shortfall"), and provided that Supplier gives Sprint written Notice of such
Shortfall, then Supplier may invoice Sprint for a penalty of * of
the Net Price of such Shortfall. Sprint shall pay such penalty pursuant to the
provisions set forth in Section 3.1(a). In the event that Sprint submits
Purchase Orders for the Shortfall within * days following the forecasted
delivery date, then (i) Supplier shall deliver the Deliverables in the times
frames set forth in Section 2.2; and (ii) Sprint shall make payment for the
remaining * of the Net Price of such Shortfall pursuant to the provisions set
forth in Section 3.1(a).
2.2 During the Term of this Agreement, Sprint shall issue Purchase
Orders specifying the Deliverables ordered, the quantities necessary, the
delivery site or sites (hereinafter the "Specified Site[s]") for the
Deliverables and the delivery schedule. The delivery schedule set forth in the
Purchase Order will reflect the following intervals:
(a) * after receipt of order ("ARO") for PO's placed *
(b) * ARO for PO's placed *
(c) * ARO for orders placed *
Unless mutually agreed upon in advance in writing, Supplier shall make
shipments in response to a Purchase Order only if the shipment completely
satisfies the Purchase Order. Time is of the essence to Sprint and Supplier
understands and acknowledges that the delivery schedule must and will be
strictly observed. Sprint may defer delivery of all or part of the
Deliverables ordered under any Purchase Order for as long as *
days beyond the scheduled delivery date, provided that Sprint provides in
written Notice in the form of a Purchase Order supplement to Supplier at least
fifteen (15) days prior to the scheduled delivery date.
2.3 All deliveries of Deliverables shall be made F.O.B. Specified
Site, third party ▇▇▇▇. Supplier agrees to follow Sprint's routing instructions
set forth in Exhibit E, including required carrier choices and Sprint agrees to
pay freight charges. If Supplier fails to follow such routing instructions,
Supplier will bear any expenses and/or other
4
Agreement Number: KC103251ML
liabilities above that which would have been incurred had the routing
instructions been followed. Risk of loss or damage to the Deliverables shall
remain with Supplier until delivered to Sprint at the Specified Site and Sprint
has verified receipt of all Deliverables ordered in the Purchase Order, but
such verification shall not prejudice Sprint's right to determine Final
Acceptance. Except for First Installations, title to the Deliverables shall
transfer upon delivery of Deliverables. The preceding provisions of this clause
are valid for deliveries in the United States, its possessions and territories
only. All deliveries outside the aforementioned areas will be mutually agreed
upon on a case by case basis.
2.4 Sprint shall have the right to alter the Specified Site(s)
within ten (10) days before Supplier's scheduled shipment date for
Deliverables, without cost or expense to Sprint, by timely transmitting Notice
to Supplier of the new Specified Site(s).
2.5 Supplier shall execute and deliver to Sprint an order
acknowledgment within seven (7) days of Supplier's receipt of each Purchase
Order. If the order is in excess of 110% of the most recent forecasted amount,
Supplier will indicate if it will commit to delivery of the excess amount.
2.6 During the Term of the Agreement * . Additionally, Supplier
agrees that in the event that at any time during the Term of this
Agreement *
ARTICLE 3. PRICING, INVOICING, PAYMENT AND OTHER FINANCIAL TERMS
3.1 Prices for new or replaced Deliverables (if the replaced
Deliverable has substantially similar purpose and functionality) are set forth
in Exhibit C and shall not be increased for the Initial Term of this
Agreement. In the event that Supplier decreases prices for Deliverables,
Supplier shall apply immediately such decreases to any outstanding Purchase
Order whose Deliverables have not yet been delivered to Sprint. Should Sprint
order a Deliverable not listed in Exhibit C, Supplier shall grant Sprint the
tier discount corresponding to the total volume of Deliverables previously
ordered by Sprint under this Agreement or the equivalent discount of a similar
category of Deliverable previously ordered by Sprint, whichever price is lower
(but in no case shall the Net Price be more than that offered to Similarly
Situated Customers). Sprint shall not be responsible for any other charges
such as insurance or similar charges unless otherwise agreed to by Sprint in
writing except sales, use, excise or similar taxes reimbursable by Sprint with
respect to Deliverables, which shall be detailed as a separate line item on
each applicable invoice. Payment terms are set forth as follows:
(a) Standard Orders: Except for the provisions of 3.1(b),
3.1(c), and 3.1(d), Sprint shall remit payment to Supplier for *
percent * of the undisputed invoice amount within thirty
(30) days after receipt of the invoice, which shall be issued upon shipment of
the Equipment or completion of services as applicable.
(b) * : In consideration of * upon the Purchase Order
acknowledgment, provided, however, that until Supplier has successfully
completed the initial FAT. Sprint shall not be obliged to pay such invoices.
Except as provided in 3.1(c), below, Supplier may invoice the balance due upon
delivery.
(c) First Installation Orders: For orders designated by
this Agreement as First Installations, Supplier shall invoice the balance due
upon Final Acceptance in accordance with the provisions of paragraph 3.6 of
Exhibit B.
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Agreement Number: KC103251ML
(d) Sprint shall not be required to pay for Deliverables
or Services which are rightfully rejected.
(e) In the event that a System does not complete Final
Acceptance to Sprint's satisfaction, Sprint has the right to remove the
respective Equipment that does not pass Final Acceptance in accordance with the
provisions set forth in Sections 15.3 and 20.3.
(f) Notwithstanding the provisions set forth in Sections
3.1 (a), 3.1 (b), and 3.1 (c), in the event that Sprint experiences at least
a * percent installation failure rate ("Installation Failure Rate")
of field replaceable module types ("Module Types"), which Module Types
are set forth in Exhibit C, Sprint shall have the right to suspend all
outstanding payments, without penalty, until such time as the problem(s)
causing such failures have been resolved or a satisfactory course of action is
agreed to by Sprint and Supplier. The Installation Failure Rate of Module
Types shall equal the total number of such Module Types which failed within *
of installation thereof, divided by the total number of that Module Type
installed during the preceding * .
3.2 In the event Supplier fails to receive payment from Sprint as
required herein, or if Supplier reasonably disputes the amount remitted by
Sprint, then Supplier shall so notify Sprint in writing. Sprint shall have
fifteen (15) calendar days to cure such non-payment, *
3.3 Invoicing instructions shall be as follows:
Original Invoice Sent To: One Copy of Invoice Sent To:
Sprint Sprint Transmission Engineering
Accounts Payable ATTN.: SONET Project Manager
P.O. Box 5409 Mailstop: MOKCMD0203
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
3.4 *
ARTICLE 4. TERM
Subject to the terms and conditions of this Agreement, the initial
term of this Agreement shall be three (3) years from the Effective Date and if
none should be entered, the date of the signing of the Agreement by the last
party to sign ("Initial Term"). At the end of the Initial Term, Sprint shall
have the option to extend this Agreement for one additional one-year period.
Thereafter, the Agreement may be renewed upon mutual agreement. The Initial
Term in combination with any extensions is also referred to in this Agreement
as the "Term."
ARTICLE 5. DOCUMENTATION AND REPORTS
6
Agreement Number: KC103251ML
5.1 (a) Supplier shall provide to Sprint, *
, sufficient Documentation as reasonably determined by Sprint, and reports
referred to in Sections 5.4 and 5.5, in each case, in English, on or before the
specified delivery date for such Deliverable, in the case of System
Documentation, or the specified due date in the case of reports. The Supplier
will provide one copy of such Documentation and reports for each Specified
Site, and twenty five (25) additional copies for administrative use. Delivery
instructions therefor will be specified in each Purchase Order. Sprint agrees
to provide Supplier with an updated distribution list for revisions or updates,
or both, as provided for herein below. Soft (computer disk) copies of the
Documentation will be available upon Sprint's request. Additionally, Sprint may
order a Documentation in CD ROM form in lieu of paper copies, if available from
Supplier * . Sprint may also reproduce hard copy
Documentation for its internal use provided that any copyright notice of such
Documentation is copied as well.
(b) All hard copy Documentation shall be delivered on 8
1/2 by 11 inch paper with numbered pages with one of those copies being in
"camera ready" form for permissible reproduction and/or printing. Diagrams
shall be included in the respective documents and may be 11 x 17 inch paper as
appropriate, or issued separately if they are a stand-alone document.
5.2 Supplier shall, within the applicable time period set forth in
Section 5.3, 5.4 and 16.11, provide Sprint with (a) updates, as such updates
are made generally available, to the Documentation, and (b) new and/or revised
data incorporating any changes to the Deliverables which affect form, fit, or
function, in each case at no additional charge to Sprint. Such Documentation
may be reproduced by Sprint for its internal use, provided that any copyright
notice of such Documentation is copied as well. Soft copies of such
Documentation shall be available upon Sprint's request. Such Documentation
will be used for Sprint's internal use only on a strict need to know and need
to use basis.
5.3 Supplier shall provide Sprint with relevant Documentation
within thirty (30) days of correction of the conditions described in (a), (b)
or (c) below:
(a) Any E1 or E2 condition of Software and/or Equipment
as described in Article 16;
(b) A hazardous electrical or mechanical condition in the
Equipment; or
(c) Support Services do not correct System Software
and/or Equipment failures to meet Technical Requirements, even on a
temporary basis.
5.4 Supplier shall maintain a data base and furnish to the Sprint
SONET Project Manager, at the times specified below and at a location to be
designated by the Sprint Project Manager, three (3) copies each of the reports
described below:
(a) Supplier shall furnish every * , unless otherwise
stated, for * the following reports:
(i) Reports of all Items returned for repair and
disposition of the Items by type, date of
receipt, serial number and common language
equipment identifier ("CLEI"). The
categories of the report may be modified
during the Life of System but at minimum will
include: the cause of failure, including
whether no trouble found ("NTF"), the
disposition of the unit as being returned or
replaced, and any repair action taken.
(ii) Percent NTF by type. Each report shall
include a comparison of Sprint versus all
Customers (who shall not be specifically
identified).
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Agreement Number: KC103251ML
(iii) CSR Report, which definition is set forth
in Article 16.4, which shall show:
(A) the date each CSR was submitted to
the Supplier by Sprint;
(B) as to each CSR, whether it is open
or closed, and the date of closing
of each closed CSR (such closing
shall require the concurrence of
Sprint);
(C) the identification number ("ID")
assigned to the CSR by Sprint and if
the ID number assigned thereto by
the Supplier is different, then the
Supplier's ID number shall also be
included;
(D) the priority code assigned to the
▇▇▇ (▇.▇., ▇▇, ▇▇, ▇▇, ▇▇ ▇▇ ▇▇)
pursuant to Article 16 of this
Agreement;
(E) whether the actions necessary to
correct the trouble found, or
provide upgrades or enhancements,
involved one or more of the
following: Software Upgrade,
Equipment Upgrade, Software Feature
Enhancement or Equipment Feature
Enhancement
(iv) Product Change Notices ("PCN") issued by
identification number and title.
(v) List of Sprint Purchase Orders providing the
date of receipt, status of order and status of paid invoice.
(vi) Acknowledgment, in writing, as to whether
Supplier can meet Sprint's entire Commitment. *
(vii) List of forecasted Deliverables for each
month of the Commitment period, with associated Purchase Order(s), and
applicable Shortfall, if any. *
(b) Supplier shall furnish (starting *
from the date of initial delivery of the Equipment) the following reports:
(i) *
.
(ii) Turnaround (interval) time for normal and
emergency repairs. The report for emergency
turnaround shall provide the time the call
was received versus the time the module was
shipped. The report for normal turnaround
shall provide the date the part is received
versus the date the replacement or repaired
part is shipped.
5.5 In addition, * during the Life of the System, Supplier shall
provide Sprint with a * .
ARTICLE 6. DELIVERY, INSTALLATION AND ACCEPTANCE
6.1 Supplier shall meet or exceed all Technical, Test and
Acceptance Requirements set forth in Exhibit B with respect to the Deliverables
supplied to Sprint.
8
Agreement Number: KC103251ML
6.2 Supplier shall ▇▇▇▇ each shipment to Sprint with Supplier
name, the Purchase Order number, Sprint work order number (if such designation
is included in the Purchase Order), the identity and quantity of Deliverables,
and notice of partial or final delivery. Partial delivery may be made only
with prior written permission from Sprint. Final destination, interim staging
area or any special shipping instructions and any applicable charge will be
specified on each Purchase Order.
6.3 (a) During the Initial Term of this Agreement, Supplier
shall make available on-site installation spares of all parts and components of
the Equipment ("Spares Kits" or "Kits") at the time of installation in
sufficient quantities to enable timely Final System Acceptance of Equipment.
In the event that Sprint elects not to purchase Spares Kits at the start of
installation, Sprint shall * . Sprint and Supplier shall periodically
coordinate to determine a mutually agreed quantity and contents of the
Kits , which shall be provided by Supplier to the extent required to meet
Sprint's then current installation needs, and furnished to the Specified Sites.
The actual composition of the Kits will be defined for each installation scheme
and be based on the actual type of Equipment to be installed. Ownership of the
Kits remains with Supplier until and except to the extent that spares are
required to be used to complete installation of the applicable System. Upon
completion of Final Acceptance at each site as set forth in Exhibit B, (i)
Sprint shall have the option to return the respective Spares Kits to Supplier
which shall include the defective Items from such installation; (ii) Supplier
shall replenish such Kit to the extent necessary to replace all defective Items
with respect to such installation, (iii) Supplier shall return such replenished
Kit or a new installation Spares Kit to Sprint to the extent required to meet
Sprint's installation needs, (iv) Sprint * of Sprint's purchase price for any
unaccounted for and/or physically damaged installation spares.
(b) Sprint also shall have the option to * ,
or in the event of multiple Kits being used on an installation project, *
(c) Supplier shall provide, as back-up to the
installation Spares Kit * emergency replacement of any
failed unit during installation and supplement installation spares for spares
which have been depleted.
ARTICLE 7. FORCE MAJEURE
7.1 Except as otherwise provided herein, neither Supplier nor
Sprint shall be liable to the other for any delay in performing in accordance
with this Agreement if such delay arises directly out of an Act of God
including fire, flood, earthquake, explosion, casualty, or accident, or out of
war, riot, civil commotion, labor dispute, the requirement of any
governmental agency or instrumentality, or any other cause beyond the control
of the party claiming force majeure, its agents, suppliers or other
subcontractors ("subcontractors").
7.2 Such delay by Supplier that arises out of any delay in
performing or failure to perform by any of its subcontractors shall be
excusable only if the (a) delay or failure by such subcontractor arises
directly out of a cause or event referred to in Section 7.1, and without the
fault or negligence of either or both of Supplier and such subcontractor and
(b) the materials or services to be furnished by such subcontractor or Supplier
were not reasonably obtainable from other sources in sufficient time to permit
Supplier to meet the required schedule.
7.3 The party asserting that an event of force majeure has
occurred shall send the other party Notice thereof in accordance with Section
22 no later than five (5) business days after the beginning of such claimed
event
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Agreement Number: KC103251ML
setting forth a description of the event of force majeure, an estimate of its
effect upon the party's ability to perform its obligations under this Agreement
and the duration or expected duration thereof. The Notice shall be supplemented
by such other information or documentation as the party receiving the notice
may reasonably request.
7.4 The party asserting that an event of force majeure has
occurred shall be excused, on a day-to-day basis, from the performance of its
obligations under this Agreement to the extent prevented or delayed by such
event (and the other party likewise shall be excused, on a day-to-day basis,
from the performance of its obligations under this Agreement to the extent such
party's obligations related to the obligations are so prevented or delayed);
provided, however, that the party asserting the occurrence of a force majeure
event shall use its best efforts to avoid or remove such force majeure event.
7.5 In the event that Supplier delays in performing or fails to
perform any of its obligations under this Agreement as a result of an event of
force majeure and such delay or failure continues for * or
more, Sprint shall be entitled in its sole discretion to terminate any affected
Purchase Order without penalty. As soon as possible after the cessation of any
event of force majeure, the party which asserted such event shall give the
other party written notice of such cessation. Whenever possible, each party
shall give the other party written Notice of any threatened or impending event
of force majeure.
ARTICLE 8. TRAINING
8.1 Supplier shall provide, upon Sprint's request and at the time
or times required by Sprint during the Term of this Agreement, up *
training class days of training and training materials for Sprint personnel,
* . Such training shall be kept current to encompass the latest
Licensed Software and Equipment, or any other Software Revision Level and/or
Equipment Revision Level directed by Sprint. Subject to the foregoing, course
content and material will be designed and agreed to by mutual consent.
Supplier shall have operator training available * and
train-the-trainer classes available within * . Sprint shall have the
right to copy Supplier's training materials for its internal use provided that
any copyright notice included in such material is copied as well. Unless
otherwise directed by Sprint, courses shall be limited to ten (10) attendees
in each course session. Sprint is obligated to pay for all travel and lodging
of Sprint personnel. All training will be conducted at Ciena's Maryland
location unless otherwise agreed. For each of the courses described below,
Supplier shall sufficiently train and test class attendees such that the
individual can perform the respective functions on the Equipment and Licensed
Software. Supplier shall conduct classes for each course described below:
(a) Installation training will include training to
technical personnel presumed not qualified or trained specifically on
installation or testing of the Equipment as it interfaces with a SONET System
or the Equipment or Software. The subject matter will include a general
overview of Equipment technology and how it interfaces with fiber optic
transmission systems, and any other information necessary to successfully
install and test the Equipment in a field location.
(b) Operations, Maintenance and Provisioning ("OM&P")
training will include training to technical personnel presumed not qualified or
trained specifically on operating the Equipment and Software included therein.
The subject matter will include (i) a general overview of wave division
multiplexers and how that type of equipment interfaces with fiber optic
transmission systems (ii) a system overview of the Equipment, Software
initiation and configuration requirements, required interconnections,
troubleshooting and testing requirements, recovery from System failures, use of
the craft interface device, and (iii) any other information necessary to
successfully operate, troubleshoot, maintain, or set up the Equipment to direct
traffic to the intended location, in each case so that the Equipment
successfully operates in a field location.
(c) *
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Agreement Number: KC103251ML
Supplier will certify attendees upon successful completion of the course. Such
course content and materials may be tailored or customized by Sprint for
internal use only and shall include training with respect to the following
topics which are applicable, as appropriate, to the installation, operation and
maintenance of the Equipment such as:
(i) Hardware configuration;
(ii) Communication interfaces and protocols;
(iii) Software operating system (current to latest
Software Revision Level);
(iv) Data base configuration, structure and
content;
(v) Data base down loading;
(vi) Program function;
(vii) Troubleshooting procedures; and
(viii) Other subject matter which is necessary or
desirable to understand current Equipment
operation and maintenance as well as any
enhancements as they are added to the
Equipment.
ARTICLE 9. SOFTWARE LICENSE
9.1 Supplier hereby grants to Sprint, and Sprint hereby accepts
from Supplier a perpetual, non-exclusive, fully paid-up, worldwide right to use
license (the "RTU License"), with rights to transfer and sublicense, only to
the extent explicitly authorized in this Agreement for:
(a) the EMS Software in machine readable form, including
any applicable Software Upgrades provided under the warranty provisions of this
Agreement and any EMS Software Feature Enhancements licensed by Sprint under
this Agreement, and any copies of any of the foregoing as authorized herein;
(b) System Software in machine readable form, including
any applicable Software Upgrades provided under the warranty provisions of this
Agreement or any System Software Feature Enhancements licensed by Sprint under
this Agreement, and any copies of any of the foregoing as authorized herein,
and
(c) Third Party Software embedded in and integrated with
the Equipment, System Software, and EMS Software, in machine readable form.
The RTU License for each Item of Licensed Software commences on *
and extends perpetually thereafter unless terminated in accordance with the
provisions of this Article 9.
* Sprint may physically transfer the EMS Software from one workstation to
another without Notice to Supplier and from one site to another provided that
(a) the workstation from which the EMS Software has been transferred shall
cease to be a Licensed EMS Workstation for such transferred Software and the
workstation to which the EMS Software has been transferred shall thereafter be
deemed to be a Licensed EMS Workstation, and (b) the EMS Software delivered by
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Agreement Number: KC103251ML
Supplier pursuant to a Sprint Purchase Order shall not be resident at any time
on more than the total number of Licensed EMS Workstations set forth on the
applicable Sprint Purchase Order.
Sprint's * for the System Software shall be limited to use in Equipment
provided under this Agreement which incorporates such System Software for
transmission of a number of information payload carriers ("Channels") excluding
service channel carriers (order wires), in either optical transmission path of
such Equipment which does not exceed the number of Channels set forth in
Sprint's Purchase Order, or otherwise authorized by this Agreement, for (a) the
Equipment and System Software, or (b) license upgrade applicable to the
Equipment, and authorized by Supplier through provision of an applicable
release of the System Software for that System or an acknowledgment by Supplier
of purchase by Sprint's of * for increasing the maximum number of *
(hereinafter, a "Licensed System"). Sprint may transfer the System Software
from one site to another so long as operated only on a Licensed System.
The Licensed Software contains copyrighted material, trade secrets and other
proprietary material of Supplier or Supplier's subcontractors. Sprint is
granted no title or ownership rights to the Licensed Software, and Sprint shall
not sell, transfer (except as authorized under this Agreement), rent, copy
(other than for archival or backup purposes), reverse engineer, or grant any
rights in the Licensed Software except as provided herein without Supplier's
prior written consent. Sprint agrees to protect the Licensed Software in a
manner consistent with the maintenance of Supplier's ownership and proprietary
rights therein, including displaying of any copyright marks incorporated by
Supplier.
9.2 Sprint agrees that the System Software is intended for use
with Supplier's Equipment and Supplier agrees that the Software will have
Interoperability with systems, equipment and software provided by other
suppliers and Customers. *
9.3 Supplier agrees that each Software Revision Level of the
System Software * shall maintain Backwards Compatibility with all existing
in-service Equipment and the previous Software Revision Levels issued within
the previous two (2) year period of the System Software) made available to the
Customers by Supplier. Sprint shall be required to procure a license for not
more than one Software Revision Level of the System or EMS Software at each
site to acheive the functionality and features of the most current Software
Revision Level and to maintain Backwards Compatibility if the Equipment is
deployed with Supplier's the then-current version of System Software or EMS
Software. In the event System Software or EMS Software supplied by the Supplier
at any site at any time does not provide Backwards Compatibility as required by
this Section 9.3, then Supplier shall provide, without charge to Sprint, the
most current Software Upgrades of the System Software to each such site, and
otherwise take such steps as may be necessary to achieve Backwards
Compatibility. Some Software Feature Enhancements may require attendant
hardware as described generally in Article 11, which will be purchased by
Sprint consistent with Article 11.
9.4 The provisions of this Article 9 shall survive the
termination of this Agreement, regardless of the cause of termination.
9.5 In conjunction with a distribution of the Source Code escrow
described in Section 9.6, Supplier hereby grants to Sprint the perpetual right
and license to use, modify, and enhance the released Source Code of the
Software licensed by Sprint under the restrictions set forth in Section 9.6,
and Supplier agrees that the rights and licenses granted herein: (i) are fully
performed, (ii) are not of an executory nature, (iii) will not be subject to
rejection under Title 11, ▇▇▇▇▇▇▇ ▇▇▇ (▇) ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code, or any
replacement provision therefor, and (iv) will be deemed to be, for purposes of
Title 11, ▇▇▇▇▇▇▇ ▇▇▇ (▇) ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code, or any replacement
provision therefor, licenses to rights to "intellectual property" as defined
therein.
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Agreement Number: KC103251ML
9.6 Supplier hereby grants Sprint, and Sprint hereby accepts from
Supplier, a Right to Modify license ("RTM License"), limited in use only for
the maintenance, modification and support of that Equipment purchased or
operated and System Software and EMS Software licensed by Sprint, including
access to Source Code, with access to the Source Code exercisable by Sprint
only under the following conditions:
(a) If Supplier becomes insolvent, makes a general
assignment for the benefit of creditors, files a voluntary petition in
bankruptcy or an involuntary petition in bankruptcy is filed against Supplier
which is not dismissed within sixty (60) days, or suffers or permits the
appointment of a receiver for its business, or its assets become subject to any
proceeding under a bankruptcy or insolvency law, domestic or foreign, or has
liquidated its business, or Supplier, or a business unit of Supplier that is
responsible for maintenance of the Licensed Software ceases doing business
without providing for a successor, and Sprint has reasonable cause to believe
that any such event will cause Supplier to be unable to meet its support
requirements hereunder; or
(b) If Supplier assigns, transfers or otherwise provides for
maintenance rights or other such rights to the Licensed Software to a third
party, excluding merger or acquisition, unless Sprint consents, in writing, to
such transfer or assignment (which consent shall not be unreasonably withheld)
after receiving assurances which are reasonably satisfactory to Sprint that
Support Services provided under Article 16 for the Licensed Software, and
Equipment during the Warranty Period and any Extended Warranty Periods as
defined in Article 13 with respect to the same will be maintained as
contemplated by this Agreement;
(c) *
9.7 Supplier agrees, at Sprint's request, to become a party to a
mutually acceptable master Source Code escrow agreement signed by Sprint and
Supplier and consistent with the terms of this Agreement ("Escrow Agreement")
which will allow Sprint to obtain access to Supplier's Source Code in
accordance with the terms set forth in Section 9.6 and such Escrow Agreement.
Supplier shall pay those costs associated with providing Supplier's Source Code
to the Escrow Agent and Sprint shall pay those costs associated with release of
such Source Code. Supplier warrants and agrees that (a) the Source Code
delivered into escrow in accordance with the Escrow Agreement will comprise the
full Source Code language statement of the System Software and EMS Software as
developed and used by Supplier to maintain or modify the Equipment and
management system including (i) the complete Software, maintenance, and support
Documentation, and (ii) all other materials necessary to allow a reasonably
skilled third-party programmer to maintain, modify, or enhance the deposited
Software without the assistance of any other person or the reference to any
other material; and excluding (i) Third Party Software incorporated in the
Licensed Software and sublicensed by Supplier to Sprint under the terms of
Article 9.1 of this Agreement, (ii) commercial software development tools which
were licensed by Supplier for its use in developing the Software; (b) such
Source Code shall include all Software Revision Levels thereof which have been
delivered by Supplier to Sprint under this Agreement from the date of initial
creation of such Software until the date the RTM License becomes effective, (c)
such Source Code shall be kept up to date, including all updates needed to
maintain compliance with the Technical Requirements. In addition, all parts of
the Source Code from the date of its creation until the date the RTM License
first becomes effective thereof, and all updates thereto (including, without
limitation, those which are necessary to maintain compliance with the Technical
Requirements) shall be delivered into escrow in accordance with the Escrow
Agreement, and (d) the escrow agent will give Sprint written notice of any
deposit by Supplier and any refusal by Supplier to pay applicable any escrow
fees and expenses. At Sprint's request, the escrow agent will also certify
that the deposit meets the technical requirements set forth in the Escrow
Agreement, including tests of the deposited Software. The Source Code
delivered to the escrow agent will be in a form suitable for reproduction by
Sprint.
9.8 In the event Sprint obtains the RTM License, Supplier
warrants that the System Software delivered to Sprint will be in a form
suitable for reproduction by Sprint and shall comprise the full Source Code
language statement
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Agreement Number: KC103251ML
of the System Software as used by Supplier sufficient to allow a reasonably
skilled third party programmer to maintain or modify the Equipment without the
help of any other person or reference to any other material.
9.9 In the event that, after exercising the RTM license, Sprint is
later satisfied that Supplier can meet its Software Support and maintenance
obligations as set forth in this Agreement, then Sprint shall cease to exercise
its access rights under the RTU License and Sprint shall thereafter return any
copies of Software delivered from escrow to Supplier.
ARTICLE 10. SOFTWARE CHANGES
10.1 Software Upgrades shall be provided to Sprint by Supplier at
* , during the Warranty Period or Extended Warranty Period and such Upgrade
shall have * prior to installation into the Sprint
network.. Software Feature Enhancements during or after the Warranty Period
shall be provided to Sprint by Supplier at any time, if requested by Sprint,
and Sprint shall be obligated to pay * . Sprint shall not be obligated to pay
any fee related to any Software Feature Enhancement supplied to Sprint at the
initiative of Supplier unless Sprint elects to utilize any new feature included
therein. The fee for any Software Enhancement addressed by the immediately
preceding sentence shall be due and payable within days of written Notice from
Sprint to Supplier that Sprint has elected to use such new feature and has made
Final Acceptance thereof. In the event Supplier at any time issues a Software
Upgrade which is combined with any Software Feature Enhancement (collectively
the "Combined Release") to such Licensed Software, the Combined Release shall
be provided at unless and until Sprint elects to use any of the Software
Feature Enhancement(s) included within the Combined Release and has made Final
Acceptance thereof. Any Software modification provided by Supplier to Sprint
at any time shall be subject to the terms of the Software License set forth in
Article 9.
10.2 To the extent practicable in light of Supplier's software
development practices, Supplier shall give Sprint not less than *
written notice of the introduction of any Software Feature Enhancement or
Software Upgrade of the Licensed Software to be released by Supplier.
10.3 During the Term of this Agreement, Supplier agrees, if
requested by Sprint, *
10.4 Except as provided in Section 16.3 (e), during the term of
this Agreement, installation, testing and acceptance of the Licensed Software
shall be performed in accordance with Exhibit B, prior to the delivery of the
applicable Software Upgrade or Software Feature Enhancement, but in no event no
later than thirty (30) days prior to the time such Software Upgrade or Software
Feature Enhancement is to be deployed in the field.
10.5 In the event that any Third Party Software modification,
Software Upgrade or Software Feature Enhancement or Software Revision Level
supplied by Supplier during the Life of System has the effect of preventing the
Equipment from satisfying, or performing in accordance with, the Technical
Requirements or otherwise adversely affects the functionality or features of
the Equipment, then Supplier shall promptly make such program changes, replace
the Licensed Software or take such other corrective action as may be necessary
to assure that the Licensed Software, as modified to include each such Software
Upgrade or Software Feature Enhancement, will satisfy, and perform in
accordance with, the Technical Requirements and restore all preexisting
functionality and features as well as provide any new features and
functionality provided by any of the foregoing modifications, in each case
without any charge to Sprint.
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Agreement Number: KC103251ML
10.6 Sprint shall have the option to procure a license for
Supplier's Software Feature Enhancement releases. In the event that Sprint
declines to procure a license for one or more successive releases pursuant to
this section, it shall nonetheless be eligible to procure any current release
at a price *
ARTICLE 11. EQUIPMENT CHANGES.
11.1 Equipment Upgrades shall be provided to Sprint by Supplier *
except for Class A and Class AC * The Net Price for any Equipment Feature
Enhancement addressed by the immediately preceding sentence shall be due within
thirty (30) days of written Notice from Sprint to Supplier that Sprint has
elected to use such new feature and has made Final Acceptance thereof. In the
event Supplier at any time issues an Equipment Upgrade which is combined with
any Equipment Feature Enhancement (collectively the "Combined Release") to such
Equipment, the Combined Release shall be *
11.2 To the extent practicable in light of Supplier's Equipment
development practices, Supplier shall give Sprint not less than *
prior written Notice of the introduction of any new Equipment Feature
Enhancement to the Equipment by Supplier.
11.3 During the Term of this Agreement, Supplier agrees, if
requested by Sprint, *
11.4 Installation, testing and acceptance of the Equipment
Upgrades and Equipment Feature Enhancements shall be performed in accordance
with Exhibit B.
11.5 In the event that any Equipment Upgrade or Equipment Feature
Enhancement supplied by Supplier during the Life of System has the effect of
preventing the Equipment from satisfying, or performing in accordance with, the
Technical Requirements or otherwise adversely affects the functionality or
features of the Equipment, then Supplier shall promptly repair or take such
other corrective action as may be necessary to assure that the optical
Equipment, as modified to include each such Equipment Upgrade and Equipment
Feature Enhancement, will satisfy, and perform in accordance with the Technical
Requirements and restore all preexisting functionality and features as well as
provide any new features and functionality provided by any of the foregoing
modifications, in each case without any charge to Sprint.
11.6 Supplier reserves the right to discontinue any product that
is a Deliverable under this Agreement if a functional equivalent is offered
generally at substantially the same price or if Sprint has not ordered any of
that product for * consecutive years. Supplier will provide a
minimum of * Notice for products being discontinued.
Notwithstanding the conditions set forth in the first two sentences of this
Section 11.6, *
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Agreement Number: KC103251ML
products still in use by Sprint. For a product to be considered a functional
equivalent, however, it must meet the Technical Requirements.
ARTICLE 12. PROPRIETARY INFORMATION
12.1 Each party acknowledges the other party's ownership of trade
secrets, proprietary or confidential information, including but not limited to
products, planned products, services or planned services, the identity of or
information concerning customers or prospective customers, data, financial
information, computer software, processes, methods, knowledge, inventions,
ideas, marketing promotions, discoveries, current or planned activities,
research development or other information relating to the other party's
business activities or operations and those of its customers or subcontractors
(collectively referred to hereinafter as the "Proprietary Information").
12.2 (a) This Agreement creates a confidential relationship
between Sprint and the Supplier and, in the course of, negotiating or
performing this Agreement, including providing Deliverables pursuant to this
Agreement, the disclosing party may disclose Proprietary Information to the
receiving party. The receiving party shall keep Proprietary Information
confidential and, except as directed or authorized in writing, shall use
Proprietary Information only to provide the Deliverables and services pursuant
to this Agreement and shall not disclose to any person or entity, directly or
indirectly, in whole or in part, any Proprietary Information, information
prepared from Proprietary Information, or information that comes into
possession by reason of services hereunder. Dissemination of Proprietary
Information shall be limited to the personnel within the receiving party's
organization with a need to know and solely for the purpose of the performance
of duties hereunder. Upon cessation of work hereunder, the receiving party
shall return or destroy and certify to the disclosing party such destruction of
all documents, papers and other materials in its control that contain or relate
to Proprietary Information. To the extent practicable all proprietary
information disclosed to the receiving party shall be promptly identified as
such by the disclosing party in writing.
(b) The receiving party shall protect the Proprietary
Information from unauthorized use or disclosure by exercising the same degree
of care that it uses with respect to information of its own of a similar
nature, but in no event less than reasonable care.
12.3 Proprietary Information does not include any information
which:
(a) was rightfully known prior to * ,
other than information obtained in confidence under prior engagements;
(b) as shown by written records, has been independently
developed without any reliance on Proprietary Information; or
(c) is or later becomes part of the public domain or is
lawfully obtained from any nonparty to this Agreement.
12.4 Either party may from time to time, request that the other
party disclose such of the other party's Proprietary Information as may be
reasonably necessary to permit the design and implementation of such Software
interfaces and other systems to permit Interoperability of the Equipment with
the equipment or software of other suppliers of equipment and customers of
Sprint, excluding equipment which is intended to replace portions of Supplier's
Equipment, and each party shall otherwise reasonably cooperate with the other
and such other suppliers and customers for the purpose of achieving such
Interoperability.
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Agreement Number: KC103251ML
12.5 Supplier may not use or reproduce the Sprint name with the
diamond logo, the diamond logo alone, or any other registered or otherwise
protected trademark of Sprint, even in responses to or in correspondence with
Sprint, without the express, prior written permission of Sprint.
12.6 All equipment, materials, drawings, software, data or other
such property of every description that Supplier receives directly or
indirectly from Sprint or from a third party on behalf of Sprint in relation to
this Agreement, or that is paid for or in whole or in part by Sprint, is the
property of Sprint. ("Sprint Owned Property"). Supplier must ▇▇▇▇ all Sprint
Owned Property as such and return all Sprint Owned Property to Sprint upon
Sprint's request, or upon the termination or expiration of this Agreement
whichever is earlier. Supplier is responsible and must account for all Sprint
Owned Property, and bears the risk of loss while such property is in Supplier's
possession. Sprint Owned Property may only be used in Supplier's performance
of this Agreement. Sprint may inspect any agreements and associated records,
including invoices, by which Supplier acquires Sprint Owned Property.
12.7 The provisions of this Article 12 shall survive * .
ARTICLE 13. WARRANTIES
13.1 Supplier warrants for a period of sixty (60) months from the
date of delivery of any Deliverable or the provision of any Service ("Warranty
Period") and any Extended Warranty Period as defined in Section 13.4, that such
Deliverable or Service (as applicable) will meet all applicable industry
standards, be free from defects in material and workmanship, including without
limitation, design defects to the extent that such design defects prevent
conformity with Technical Requirements as modified and attached hereto, will
conform to the Technical Requirements, will be newly manufactured, and will be
free from all liens and encumbrances. Supplier warrants that it is authorized
to and hereby passes through to Sprint without modification, all warranties for
Third Party Software and Equipment (that was not manufactured by Supplier) as
were provided to Supplier by Third Party Software licensors and Equipment
manufacturers.
13.2 Supplier warrants that during the Warranty Period or any
Extended Warranty Period, that each Deliverable to be furnished hereunder will
conform to all standards established for such Deliverables in accordance with
applicable federal, state, local laws or regulations at time of delivery.
13.3 With respect to Deliverables repaired or replaced during the
sixty (60) month Warranty Period, Supplier warrants, for a period equal to the
greater of (i) the remaining unexpired portion of such Warranty Period, or
(ii) * from the date the repair is effected, in the case of
Deliverables repaired at the installation site, and from the date a
replacement is shipped to Sprint, in the case of defective Deliverables that
are replaced, that such Deliverables will satisfy and perform in accordance
with the Technical Requirements, throughout such time period.
13.4 During the Life of System, Sprint shall be entitled to
purchase an unlimited number of one-year extensions (each an "Extended Warranty
Period") of any or all of the warranties set forth in Section 13.1, 13.2, or
13.3 (each an "Extended Warranty") with the amount of payment for each such
Extended Warranty not to exceed that for any of Supplier's MFC's.
13.5 Supplier warrants that it has good marketable title to the
Equipment, that it has the full power and authority to grant the license
granted Sprint under this Agreement with respect to the Licensed Software, and
to Supplier's knowledge, after investigation, neither the license to nor use by
Sprint of the Licensed Software or Equipment, as permitted under this
Agreement, will in any way constitute an infringement or other violation of any
copyright, patent, trade secret, trademark, non-disclosure, or any other
intellectual property right of any third party. The Licensed Software licensed
under this Agreement will be free and clear of all liens and encumbrances.
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Agreement Number: KC103251ML
13.6 Except for the warranties expressly set forth in this Article
13 and Section 14.5, Supplier hereby expressly disclaims any and all
warranties, whether express or implied, verbal or written, statutory or at law,
including, without limitation, any warranty of merchantability or fitness for
any particular purpose.
13.7 In the event that Sprint makes any unauthorized modifications
to the Equipment or System Software, the Equipment warranty will be voided.
13.8 The Software delivered to Sprint under this Agreement will be
free from any viruses, disabling programming codes, instructions, or other such
items that may interfere with or adversely affect Sprint's permitted use of the
Software.
13.9 To the best of Supplier's knowledge, after investigation,
neither Supplier nor its personnel performing services under this Agreement has
any existing obligation that would violate or infringe upon the rights of third
parties, including property, contractual, employment, trademark, trade secrets,
copyright, patent, proprietary information and non disclosure rights, that may
affect Supplier's ability to fulfill its obligations under this Agreement.
ARTICLE 14. REPRESENTATIONS AND OTHER WARRANTIES
14.1 Each party represents and warrants that it is duly
organized, existing and in good standing under the laws of its State of
organization, and is duly qualified as a foreign corporation and in good
standing in all jurisdictions in which the failure to so qualify would have a
materially adverse impact upon its business and assets.
14.2 Each party represents and warrants that it has the corporate
power and requisite authority to execute, deliver and perform this Agreement,
the non disclosure agreement between the parties incorporated as Exhibit D, the
Hardware and Software Trial Evaluation agreement between the parties
dated * , any Source Code escrow agreement entered into pursuant to
this Agreement, and all Purchase Orders to be executed pursuant to or in
connection with this Agreement, and that it is duly authorized to, and has
taken all corporate action necessary to authorize, the execution, delivery and
performance of this Agreement and such other agreements and documents.
14.3 Each party represents and warrants that neither the
execution and delivery of this Agreement and the agreements or documents stated
in Section 14.2 above executed by it pursuant to or in connection with this
Agreement, nor the consummation of any of the transactions herein or therein
contemplated, nor compliance by it with the terms and provisions hereof or with
the terms and provisions thereof will (i) contravene or materially conflict
with any provision of applicable law to which it is subject or any judgment,
license, order or permit applicable to it, or any indenture, mortgage, deed of
trust, or other agreement or instrument to which it is a party or by which it
or its property may be bound, or to which it or its property may be subject,
(ii) violate any provision of its articles of incorporation or bylaws or
partnership agreement, if any or (iii) require the consent or approval of, the
giving of notice to, or the registration, recording or filing of any document
with, or the taking of any other action in respect of, any person, entity or
governmental agency.
14.4 Each party represents and warrants that this Agreement and
the agreements or documents stated in Section 14.2 above executed by it
pursuant to or in connection with this Agreement will constitute when executed
in full the legal, valid and binding obligations of said party, enforceable in
accordance with their respective terms, subject to applicable bankruptcy,
insolvency, reorganization, fraudulent transfer, moratorium or similar laws
affecting the enforcement of creditors rights generally and to general
principles of equity.
14.5 Supplier represents and warrants that Supplier possesses the
technical capability, personnel, financial and other resources and proprietary
rights to develop, build, test, deliver and support on a timely basis
Deliverables that will satisfy the Technical Requirements.
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Agreement Number: KC103251ML
ARTICLE 15. REMEDIES
15.1 In the event that any Licensed Software , or Equipment is
discovered to be defective or otherwise fails to satisfy, or perform in
accordance with, the Technical Requirements, or to conform to any of the other
warranties specified in Article 13 during the applicable Warranty Period,
Supplier promptly shall repair or replace, at its option and expense, all such
defective or nonconforming System Software, EMS Software or Equipment so as to
cause them to satisfy, and perform in accordance with, the Technical
Requirements, and all of the other warranties in Article 13 during the
applicable Warranty Period or any Extended Warranty Period. In the event that
any Deliverable is returned for repair (including Deliverables with no trouble
found following inspection) * , Supplier shall not deliver that specific
Deliverable to Sprint repaired, but will exchange it at no cost to Sprint, for
a new Deliverable.
15.2 During the Term of the Agreement, in the event Supplier fails
to meet the delivery schedule specified in an applicable Purchase Order for
Deliverables, Supplier shall have a
grace period following the scheduled delivery date, then Sprint shall either *
15.3 *
15.4 During the Term of the Agreement, in the event Supplier does
not correct the cause of any failure contemplated by Section 16.7 within the
time periods specified therein, Sprint shall be entitled to deduct from the
payments otherwise required to be made by Sprint to Supplier under this
Agreement, or request or credit to its account with Supplier or a payment from
Supplier, in an amount equal to * Should occurrence cause additional
derivative problems of the type as identified in Section 16.7, the remedies
payable to Sprint by Supplier shall not be cumulative.
15.5 The parties acknowledge that disclosure of any Proprietary
Information other than as allowed by Article 12 may give rise to irreparable
injury and may be inadequately compensable in monetary damages and therefore
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Agreement Number: KC103251ML
the non-disclosing party shall be entitled to seek and to obtain injunctive or
other equitable relief against the breach or threatened breach of the
obligations of said Article 12, in addition to any other remedies which may be
available.
15.6 Notwithstanding any other provision to the contrary in
Article 15 (except Section 15.4) or elsewhere in this Agreement:
(a) Except for those provided in Section 16.7, all
remedies available to either party under this Agreement are cumulative and may
be exercised concurrently or separately; the exercise of any one remedy shall
not be deemed an election of such remedy to the exclusion of other remedies;
and the rights and remedies of the parties as set forth in this Agreement are
not exclusive and are in addition to any other rights and remedies available to
it at law or in equity; provided, however, that the aggregate amount that
Sprint shall be permitted to deduct from payments otherwise required to be made
by it to Supplier under this Article 15, or to request a credit or payment as
aforesaid, shall not exceed the aggregate Net Price of Deliverables invoiced to
Sprint pursuant to Purchase Orders throughout the Term of this Agreement.
(b) *
15.7 Except for Supplier's indemnity obligations set forth in
Article 19, anything in this Agreement to the contrary notwithstanding,
Supplier's uninsured liability to Sprint pursuant to this Agreement or in
connection with any matters in any manner related to this Agreement shall not
exceed in the aggregate the Net Price of all Deliverables purchased by Sprint
from Supplier and paid for during the term of this Agreement.
15.8 Except for Supplier's indemnity obligations set forth in
Article 19, anything else to the contrary in this Agreement notwithstanding
(except for Sections 15.2 and 15.4 of this Agreement), Neither party shall be
liable to the other or to anyone claiming through the other party for any
indirect, consequential, special or exemplary damages of any kind whatsoever.
ARTICLE 16. SUPPORT SERVICES
16.1 Support services consist of immediate and long-term emergency
and non-emergency services provided during the Warranty Period and any Extended
Warranty Period. Subject to the terms and conditions of this Agreement,
Supplier will provide to Sprint the support services described below ("Support
Services") *
(a) Upon receipt of a request for technical assistance,
the nature of the problem will be identified, and a priority assigned by Sprint
as either an emergency or non-emergency condition and resolution thereof will
be expedited accordingly.
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Agreement Number: KC103251ML
(b) Following corrective actions by Sprint in accordance
with applicable maintenance documentation provided by the Supplier, when
Supplier is notified by Sprint that the Licensed Software or Equipment fails to
operate in accordance with the Technical Requirements, Supplier will promptly
commence and diligently pursue all reasonable efforts to correct the defect.
(c) Supplier's correction of such defects in the Licensed
Software or Equipment may take the form of new System Software code, new or
supplementary operating instruction or procedures, modifications of the
Software code in customer's possession, modification of Equipment, or any other
commonly used method for correcting Software defects, as Sprint and Supplier
deem appropriate.
(d) Supplier will provide non-emergency technical support
to Sprint via telephone, facsimile transmission, or modem access, during
Sprint's normal business hours.
(e) Supplier will provide an emergency technical
assistance to Sprint via telephone, twenty-four (24) hours per day, three
hundred sixty-five (365) days per year.
16.2 (a) From time to time, failures in or degradation of
Equipment or System Software may cause services provided by the Equipment to be
adversely affected. Critical service outages which cannot be resolved by
Sprint field technicians or technical support engineers using procedures
defined in Supplier documentation and training will be transmitted to the
Supplier as a Trouble Report ("TR"). Supplier shall assign an identifying
number to each TR to aid in tracking its disposition. TR's will be immediately
addressed by the Supplier through emergency technical assistance under
guidelines set forth below. It is necessary that immediate assistance be
provided by the Supplier to allow Sprint to restore the affected service.
Trouble Reports may not be considered concluded until the solution is concurred
in by a designated Sprint Operations Control Center. The root cause of
problems resulting in TR's may be system deficiencies which must be corrected
through Equipment, System Software or procedure changes. Problems with the
Equipment requiring such changes will be referred to the Supplier for action
through a Customer Service Request ("CSR"). CSR's will also be the means for
Sprint to request certain improvements or the addition of features to the
Equipment.
(b) Sprint is authorized by Supplier to install and
integrate any Software Upgrade or Software Feature Enhancement provided by
Supplier pursuant to Supplier's instructions.
16.3 (a) The term Emergency Technical Assistance ("ETA") is
defined to mean the provision of emergency technical assistance to Sprint for
the purpose of resolving a problem which adversely affects service. When a
problem is encountered which adversely affects service with respect to the
Deliverables provided by Supplier, a Sprint maintenance technician will attempt
to repair, correct, or replace any malfunctioning Deliverable using the
procedures recommended in the Supplier's Documentation. If unsuccessful, a
Sprint technical representative will consult the Supplier's designated ETA
group at the telephone number provided by the Supplier in Section 16.3(c).
Following receipt of notification by the ETA group, the ETA group will utilize
all available technical resources and will ensure that a qualified technical
engineer is communicating with Sprint personnel regarding the problem within
fifteen (15) minutes of such notification.
(b) A problem adversely affecting service that has a
severity level defined below as either E1 or E2 is to be addressed under ETA
procedures:
(i) The term E1 Emergency Condition is defined to
mean any failure of a Deliverable that
renders any primary function and all recovery
procedures inoperative. Supplier shall clear
all E1 Emergency Conditions within
twenty-four (24) hours or as soon as
possible. Work must continue around the
clock until the defect causing the E1
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Agreement Number: KC103251ML
Emergency Condition is solved or the severity
thereof is reduced to P1, as defined below,
or less.
(ii) The term E2 Emergency Condition is defined to
mean any emergency condition in which there
is a clearly identified degradation of
customer service that continues or repeats
even after recovery procedures have been
executed, and which will ultimately results
in the loss of any primary function of the
Deliverable. Supplier shall clear all E2
Emergency Conditions within twenty-four (24)
hours or as soon as possible. This includes
problems resulting in loss of system
redundancy. Work must continue around the
clock until the defect causing the E2
Emergency Condition is solved or the severity
is reduced to P1, as defined below, or less.
(c) In the event that an E1 or E2 Emergency Condition
should remain unresolved following referral to the Supplier by Sprint, the
problem causing such condition shall be reported to the levels of management
set forth below (with comparable titles, if different) to ensure all available
resources necessary to address the problem will be committed in accordance with
the following:
*
* * * *
* * * *
* * * *
* * * *
* *
* * * *
(d) In the event that Sprint reasonably determines that
Supplier has not provided sufficient ETA to resolve any E1 or E2 Emergency
Condition on a timely basis, *
.
(e) Time is of the essence during E1 and E2 Emergency
Conditions, and Supplier shall deliver to Sprint each Software Upgrade and each
Equipment Upgrade developed by or on behalf of Supplier to resolve any E1 or E2
Emergency Condition promptly following completion of development and successful
testing of such Software Upgrade or Equipment Upgrade but in no event later
than * following completion of such development.
16.4 (a) The term Non-Emergency Services includes providing to
Sprint any requested technical assistance and support, remote monitoring and
outage review consultation and the handling of Customer Service Requests
("CSR").
(b) Technical assistance and support shall be provided
for the purpose of resolving non-emergency problems defined below as P1, P2 and
P3 which shall be reported to Supplier.
(i) The term P1 Major Condition is defined to
mean any non-emergency failure of specific
features or functions of the Deliverable that
restricts its operations, but does not render
the Deliverable inoperable, or require
significant manual intervention for the
Deliverable to operate properly.
(ii) The term P2 Significant Problem is defined to
mean any non-emergency, intermittently
occurring problem related to specific primary
functions, or features and/or any inoperable
secondary functions, but the impact of such
problems does not have a significant adverse
affect on the overall performance of the
Deliverable. By-pass or work around
procedures shall be used to alleviate such
problem until it is corrected.
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Agreement Number: KC103251ML
(iii) The term P3 Minor Problem is defined to mean
any non-emergency problem that does not
affect the performance or functions of the
Deliverable. The Deliverable is fully
operable without restrictions. Such problems
may include Documentation inaccuracies,
cosmetics, minor requests for changes or
maintenance requests. Supplier will clear
minor problems during the next available
scheduled Software Upgrade or Equipment
Upgrade.
(c) Should non-emergency problems remain unresolved
following referral to the Supplier by Sprint, such problem shall be reported to
higher levels of management to ensure all available resources are committed to
address such problem in accordance with the following schedule:
*
*
* * * * *
* * * * *
* * * * *
*
* * *
Non-emergency problems referred to the Supplier as a CSR will be
resolved based upon the priority assigned to them as reasonably determined by
Sprint , and will generally be incorporated into the next scheduled Software
Upgrade, Feature Enhancement or Revision Level, or Equipment Upgrade, Feature
Enhancement or Revision Level, as applicable and which time reasonably
permits. Technical assistance for P1, P2, and P3 type problems shall be
included in the Support Services during the Warranty or Extended Warranty
Period during normal business hours (Monday-Friday 0800 - 1700 hours local
time, Kansas City).
16.5 In the event that emergency or non-emergency technical
support provided from the Supplier's technical support center is not sufficient
to resolve level E1 or E2 Emergency Conditions or P1 or P2 problems, Supplier
shall send a technically qualified person to this site of such emergency
condition or problem to assist Sprint employees in solving the condition or
problem. The technically qualified person shall be on-site within twenty-four
(24) hours or as soon thereafter as reasonably practicable after notification
to Supplier by Sprint, or at such later time as may be determined by Sprint.
16.6 A CSR will be submitted by Sprint to request a repair of
Emergency Conditions or a Non-Emergency Problem, or to request the addition of
a Software or Equipment Upgrade or other Software or Equipment Feature
Enhancement. Sprint's CSRs will define the problem or feature desired, and
state whether Sprint considers the CSR to be a Software Equipment Upgrade or
Software Equipment Feature Enhancement. Changes to the Equipment resulting from
CSR's must be fully tested and accepted in accordance with the provisions of
Exhibit B. The Supplier shall respond to the submission of a CSR by Sprint
within five (5) business days, acknowledging receipt of the CSR, confirming or
denying agreement with Sprint's assessment of whether the CSR may be considered
a Software or Equipment Upgrade or a Software or Equipment Feature Enhancement
and summarizing the Supplier's intended actions to handle the CSR. A CSR may
result in a Software Upgrade or Equipment Upgrade as well as a Software Feature
Enhancement or Equipment Feature Enhancement.
To the extent that Sprint notifies Supplier of a problem to be
remedied by Supplier, whether under Article 16 or any other provision of this
Agreement, and such problem is determined to be not attributable to products or
services provided by Supplier, Sprint shall promptly, but in no event later
than thirty (30) days after receipt of * therefor*.
Notwithstanding the previous sentence, if such problem is the result of an
installation by Sprint is based on erroneous Documentation or advice from
Supplier, any expenses incurred by Supplier shall not be paid by Sprint.
Reimbursement provisions for Supplier's expenses are set forth in Exhibit C.
16.7 In the event that Sprint's efforts in resolving the following
issues are unsuccessful, Sprint may submit a CSR to Supplier.:
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Agreement Number: KC103251ML
(a) *
(b) *
.
(c) Software Upgrades or Software Feature Enhancements
cannot be installed into working Equipment without affecting customer traffic.
Supplier shall have * from the date the CSR is submitted to
identify and isolate the cause, recommend a solution that is satisfactory to
Sprint or notify Sprint that Supplier does not believe that the fault relates
to its Deliverable, and the basis for this conclusion. If, in Sprint's
determination a Deliverable is at fault, Supplier agrees to correct the cause
of the failure at no cost or expense to Sprint (and to deliver the same to
Sprint).
If the cause of any failure is not corrected within the time periods
specified above, Sprint shall be entitled to the remedy set forth in Section
15.4.
16.8 Deliverables which fail in service will be returned by Sprint
to the Supplier for repair in accordance with the following:
(a) During the applicable Warranty Period, or Extended
Warranty Period, repair of failed Deliverables shall be accomplished by the
Supplier * .
(b) Under non-emergency circumstances, Supplier shall
repair or replace failed Equipment and return it to Sprint no later than
* following receipt from Sprint.
(c) Under emergency conditions, the Supplier shall
provide emergency replacement of failed or inoperational Deliverables in the
event that a spare is not available through Sprint's stock of spares in the
region affected. In such event, Supplier shall deliver emergency spare parts
to Sprint within * of Supplier's receipt of
Sprint's request. A request from Sprint shall be made through the emergency
support contact as defined in Section 16.3. If Supplier fails to comply with
the aforesaid obligation in *
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Agreement Number: KC103251ML
one emergency request.
16.9 All units repaired by the Supplier for immediate or eventual
return to Sprint shall be tested for full functionality in accordance with
Supplier's current practices. Should no trouble be found ("NTF") with
Equipment returned by Sprint to the Supplier for repair, a functionality
testing period, intended to discover latent problems with the Equipment, shall
be accomplished by the Supplier for no less *
16.10 Supplier will notify Sprint of any problem described in this
Section, below, with Equipment, Software or Documentation discovered through
any internal investigation or trouble reporting process from any customer using
the Equipment. Such notification shall be in writing and shall be made within
* of the discovery of level E1 or E2 Emergency Condition, *
for level P1 problems and * for level P2 or P3 problems. Supplier
shall make reasonable efforts to verbally notify Sprint and discuss the problem
with a technician or engineer as soon as practicable, but in no event later
than * after the internal discovery of level E1 or E2 Emergency Condition
problems. Written notifications will be made by fax or overnight courier at
Supplier's discretion. Notification will include:
(a) Impact on traffic if the condition or problem is not
fixed;
(b) Impact on traffic caused by implementing fix;
(c) If fix is already included in an upcoming Software
Upgrade, Revision Level, Equipment Upgrade or
Revision Level;
(d) Cost, if any, to Sprint to implement;
(e) Impact on performance of the Equipment or Software if
implemented; and
(f) Any workarounds or modifications to protect Sprint
customer traffic and the associated cost as
applicable.
16.11 Changes to the system required by Supplier due to its normal
business processes or required by TR's, CSR's or other problem resolution
methods shall be communicated to Sprint through a formal Product Change Notice
("PCN") process. This process will ensure formal Documentation is issued to
Sprint to describe any necessary modifications to the Software or to the
Equipment, and procedures for implementing them on a timely basis.
(a) Product Changes for problems for which a fix has been
identified through the TR or CSR process must be tested and demonstrated within
* for E1 or E2 level conditions, and *
for P1, P2 or P3 level problems and implemented in the network as soon as
reasonably practicable.
(b) Sprint must be notified of all upgrades that result
in a functional change prior to the change being implemented on repaired
Deliverables, or through Software Upgrades to individual Deliverables or the
overall Equipment. Sprint must approve changes that affect functionality or
Interoperability of Supplier's Equipment.
(c) An Equipment Upgrade or Software Upgrade to
Supplier's Equipment that changes functionality may, at Sprint's election, be
jointly tested by the Supplier and Sprint in Supplier's or Sprint's Testbed
prior to use by Sprint.
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Agreement Number: KC103251ML
16.12 All Equipment capable of being marked with bar codes using the
CLEI standards as defined by Bellcore shall be so marked.
16.13 Supplier shall make available appropriate members of its senior
management at a mutually agreed upon date once each quarter, or at such dates
no more frequently directed by Sprint, to participate in quality assurance
meetings conducted by Sprint which will cover, at a minimum, Supplier
performance, business process and procedure improvements, projected schedules
for future System Software releases and their proposed contents, and ongoing
operations topics.
16.14 The Supplier shall be obligated to fulfill all of the duties
and perform all of the obligations, for reasonable rates after the Warranty
Period or Extended Warranty Period as the case may be, set forth in or
contemplated by each of Sections 16.1 through and including 16.13 during the
Life of System.
ARTICLE 17. DISASTER RECOVERY
17.1 Supplier shall commit to its best efforts to have available
to Sprint sufficient Equipment and/or System Software inventory to replace the
most complex Sprint network node site which would include any combination of up
to * Sprint network, in each case as directed by Sprint. This commitment
shall be exercised in the event the Sprint's network incurs a Catastrophic
Failure and thereupon Supplier shall be obligated to use its best efforts to
ship such Equipment and System Software immediately following Sprint's request
in writing, but in no event later than twenty-four (24) hours following such
request. Equipment and/or System Software used in the Supplier's testbed,
specified under Article 1, may be used in combination with Supplier's inventory
to satisfy this commitment. Where appropriate, Sprint shall purchase Equipment
or procure additional licenses for Software supplied to Sprint.
17.2 In the event the Equipment and/or System Software is used to
support Sprint in a disaster recovery, Supplier shall restore to full operation
the Supplier Testbed in the configuration specified in Article 1 as soon as
possible but in no event later than * after
such Equipment and/or Licensed Software was removed.
ARTICLE 18. INSURANCE
18.1 Supplier shall procure and maintain, during the Term of this
Agreement insurance in not less than the following amounts:
(a) Worker's Compensation insurance in accordance with
the provisions of the applicable Workers' Compensation or similar law of the
state with jurisdiction applicable to Supplier's personnel.
(b) Commercial General Liability, including Contractual
Liability insurance with a coverage limit of not less than five million dollars
($5,000,000) Combined Single Limit per occurrence for bodily injury or property
damage liability. Such policy or policies shall name Sprint as an additional
insured and shall contain a provision waiving the insurer's right of
subrogation against Sprint and its employees, agents, officers and directors.
(c) If the use of any automobile is required by the
Supplier or any third party acting on behalf of Supplier in the performance of
this Agreement, Supplier shall also obtain and maintain business auto liability
insurance for the operation of all owned, non-owned and hired automobiles with
a coverage limit of not less than one million dollars ($1,000,000) combined
single limit per accident for bodily injury or property damage liability. Such
policy or policies shall name Sprint as an Additional Insured and shall contain
a provision waiving the insurer's rights of subrogation against Sprint and its
employees, agents, officers and directors.
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Agreement Number: KC103251ML
18.2 Supplier shall deliver to Sprint certificates of insurance
satisfactory in form and content to Sprint evidencing that all of the insurance
required by this Agreement is in force, and that no policy may be canceled or
materially altered without first giving Sprint at least thirty (30) days prior
written notice.
18.3 Nothing in this Article 18 is intended to imply that the
Supplier's liability to Sprint is limited to the amount of insurance carried.
Supplier's liability is limited by other provisions of this Agreement, such as
Section 15.7.
ARTICLE 19. PATENT, COPYRIGHT AND TRADE SECRET
19.1 Supplier agrees to indemnify, defend and hold harmless
Sprint, and each director, officer, employee or agent of Sprint (the
"Indemnified Parties"), against any claims, suits, proceedings, damages,
liabilities, judgments, amounts paid in settlement with the consent of the
Supplier (which consent shall not be unreasonably withheld), costs or expenses
(including the reasonable cost of investigating and defending any of the
foregoing and attorneys' fees incurred in connection therewith), joint or
several, as incurred, which may be based in whole or in part upon, or arise in
whole or in part out of (A) any infringement or alleged infringement of any
patent or copyright or similar rights protected under the laws of the United
States of America ("USA") or any other country which is a signatory to the
Paris Convention of March 20, 1883, as revised relating to the Deliverables or
use thereof;(B) any wrongful use or misappropriation or alleged wrongful use or
misappropriation of any trade secret or other proprietary rights relating to
Deliverables, hereunder pursuant to any statute, regulation or common law of
the USA or any other country which is a signatory to the Paris Convention of
March 20, 1883, as revised (collectively referred to hereinafter as
"Indemnified Liabilities"), provided that Supplier shall not be liable with
respect to any Indemnified Liabilities which result from use by Sprint of the
Equipment and Licensed Software different from the uses contemplated by this
Agreement.
19.2 Without limiting the foregoing, in the event any such claim,
action, suit, proceeding or investigation is brought against any Indemnified
Party, unless Supplier assumes the defense as hereinafter provided, (a) the
Indemnified Parties may retain counsel satisfactory to them and Supplier and
Supplier shall pay all fees and expenses of such counsel for the Indemnified
Parties promptly as statements therefor are received; and (b) Supplier will use
all reasonable efforts to assist in the vigorous defense of any such matter,
provided that Supplier shall not be liable for any settlement effected without
its written consent, which consent, however, shall not be unreasonably
withheld. The Supplier will be entitled to participate at its own expense in
the defense, or, if the Supplier so elects, to assume the defense of any suit
brought to enforce any such liability, but, if the Supplier elects to assume
the defense, such defense shall be conducted by counsel chosen by the Supplier.
In the event Supplier elects to assume the defense of any such suit and retain
such counsel, any Indemnified Party may retain additional counsel but shall
bear the fees and expenses of such counsel unless (i) the Supplier shall have
specifically authorized the retaining of such counsel or (ii) the parties to
such suit include such Indemnified Party, and the Supplier and the Indemnified
Party have been advised by counsel that one or more legal defenses may be
available to it or them which may not be available to the Supplier, in which
case the Supplier shall not be entitled to assume the defense of such suit
notwithstanding its obligation to bear the fees and expenses of such counsel.
19.3 Any Indemnified Party wishing to claim indemnification under
this Article 19, upon learning of any such claim, action, suit, proceeding or
investigation, shall notify the Supplier promptly (but the failure so to notify
shall not relieve Supplier from any liability which it may have under this
Article 19 except to the extent such failure prejudices Supplier). Supplier
shall promptly notify Sprint that it has assumed the defense of any claim,
action, suit, proceeding, or investigation and shall apprise Sprint of the
progress of such defense.
19.4 If Sprint is enjoined from use of the Equipment or any
component thereof or Licensed Software, Supplier must procure the rights, at
Supplier's cost and expense, for Sprint to continue use of the Equipment or
affected
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Agreement Number: KC103251ML
component, or Licensed Software, or replace it with non-infringing Equipment or
components, or Licensed Software, or modify same to be non-infringing.
19.5 This indemnity obligation shall be in addition to, and not in
limitation of, any liability or obligation which Supplier might otherwise have
to any Indemnified Party.
19.6 The indemnities provided in this Article 19 do not extend
to: (i) any suit or proceeding which is based on an infringement claim covering
a combination of a Deliverable purchased under this Agreement with other
devices or elements not provided, and of which Supplier is unaware, or
specified by Supplier unless such is an intended combination; (ii) any
Deliverable whose infringement is a direct result of Supplier being required to
adhere to a specific design provided by Sprint if, and only if, Supplier
informs Sprint that it does not approve the specific design be; or (iii) any
Deliverable that is otherwise modified by Sprint in a manner not authorized by
Supplier.
19.7 Except for the indemnity provisions of this Agreement, neither
party will be liable to the other for special, indirect, or consequential loss
or damage, whether or not such loss or damage is caused by the fault or
negligence of that party, its employees, agents, or subcontractors.
19.8 No limitation of liability contained in this Agreement will be
applicable in the event of Supplier's gross negligence or intentional
misconduct, or in the event of personal injury or property damage. Furthermore,
no limitation of liability contained in this Agreement will apply with respect
to any Supplier liability arising under or relating to Section 13.5 and 13.9,
or this Article 19.
ARTICLE 20. TERMINATION
20.1 Either party may terminate this Agreement and any outstanding
Purchase Order, in whole or in part, in the event of a default by the other,
provided that the non-defaulting party so advises the defaulting party in
writing of the event of alleged default and affords the defaulting party thirty
(30)days within which to cure the default. The termination upon default of
this Agreement for any reason shall not terminate any license or sublicense
granted to Sprint by this Agreement. Default is defined to include:
(a) Either party becomes insolvent, makes a general
assignment for the benefit of creditors, files a voluntary petition in
bankruptcy or an involuntary petition in bankruptcy is filed against such party
which is not dismissed within * , or suffers or permits the
appointment of a receiver for its business, or its assets become subject to
any proceeding under a bankruptcy or insolvency law, domestic or foreign, or
has liquidated its business;
(b) Either party's material breach of any of the terms or
conditions hereof;
(c) The execution by either party of an Assignment for
the benefit of creditors or any other transfer or assignment of similar nature.
20.2 Neither the expiration of this Agreement according to its
terms nor its termination under the provisions of Section 20.1 shall prejudice
any claim for any outstanding amount owed Supplier and Sprint to each other,
damages or any other rights or remedies that any party may have under this
Agreement or at law or in equity or relieve any party from the duty to hold in
confidence proprietary information and otherwise comply with, and exercise the
rights set forth in, Articles 9, 11.1, 12, 13, 15, 16, 17, 18, 19, 20, 21, 22,
23, and 25 hereof, each of which shall survive such termination.
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Agreement Number: KC103251ML
20.3 In the event Sprint terminates this Agreement as described
in Section 20.1 by reason of Supplier's non-performance of a specific Purchase
Order, and does so prior to Final Acceptance of the Deliverables or completion
of the work authorized in that Purchase Order, upon Sprint's request, Supplier
shall return all fees and moneys paid to Supplier in connection with that
Purchase Order within thirty (30) days of such termination. Sprint shall
permit Supplier, at its expense to regain possession, upon reasonable advance
notice and during normal business hours or such other time of the day
designated by Sprint, all Deliverables provided by Supplier to Sprint in
connection with that Purchase Order. The license rights which Supplier has
provided to Sprint in conjunction with Deliverables delivered under that
Purchase Order shall likewise cease, in this event, only. Either party may
also pursue any other rights or remedies pursuant to Article 15 or Article 21
or otherwise available to it at law or in equity.
ARTICLE 21. DISPUTE RESOLUTION
21.1 The parties will attempt in good faith to promptly resolve any
controversy or claim arising out of or relating to this Agreement or any
subsequent performance by the parties before resorting to other remedies
available to them. Any such dispute shall be referred to appropriate
executives of each party who shall have the authority to resolve the matter.
If the executives are unable to resolve the dispute, the parties may by
agreement refer the matter to an appropriate form of alternative dispute
resolution such as mediation. If the parties cannot resolve the matter or if
they cannot agree upon an alternative form of dispute resolution, then either
party may pursue resolution of the matter through arbitration in accordance
with the rules of the American Arbitration Association applying the substantive
law of the State of Kansas without regard to any conflict of laws provisions.
The arbitration will be governed by the United States Arbitration Act, 9,
U.S.C. Section 1, et. seq. and judgment upon the award rendered by the
arbitrators may be entered by any court with jurisdiction. The arbitrators are
not empowered to award damages in excess of compensatory damages , and each
party waives any damages in excess of compensatory damages. The parties agree
to continue performance during the pendency of any dispute, unless performance
is terminated according to Article 20 of this Agreement.
21.2 Notwithstanding the foregoing, either party may bring a claim
for injunctive relief as provided in Section 15.5 in any court of competent
jurisdiction without first submitting the claim to arbitration.
ARTICLE 22. NOTICE AND REPRESENTATIVES OF THE PARTIES
Any notice ("Notice") required or permitted under this Agreement must
be given in writing to the address or facsimile number provided for a party
below (or such other address or number as any party may provide to the other in
writing in the manner contemplated hereby) and will be deemed effective as
follows:
(a) if delivered in person or by courier, on the date it
is delivered;
(b) if sent by facsimile transmission, on the date that
the transmission is received by the recipient party in legible form;
(c) if sent by certified or registered mail or the
equivalent (return receipt requested), on the date that mail is delivered or
its delivery is attempted but acceptance is refused ;
unless the date and time of any delivery or receipt, as applicable, is not
during normal working hours on a local business day, in which case Notice
shall be deemed given and effective on the first following day that is a local
business day. For purposes hereof, a "local business day" is a business day in
the city specified in the address for notice provided by the recipient.
The Notices provided for by this Article 22 shall be given to the following:
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Agreement Number: KC103251ML
If to Sprint:
SONET Project Manager
Sprint Communications Company L.P.
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Mailstop MOKCMD0203
Telephone (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Sprint Materials & Services Management
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
ATTN: Lead Negotiator, Procurement
Mailstop: MOKCMW0801
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
FAX: ▇▇▇-▇▇▇-▇▇▇▇
If to Supplier:
Ciena Corporation
ATTN: Vice President, Sales & Marketing
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇, WEISS, RIFKIND, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
ATTN.: ▇▇▇▇ ▇▇▇▇▇▇▇
ARTICLE 23. GENERAL
23.1 Assignment. Provided that Sprint gives Notice to Supplier in
a manner consistent with Article 22 hereof, Sprint may assign this Agreement to
any one or more of the Sprint Affiliated Entities as Sprint may determine in
its sole discretion, whether or not Supplier consents to such assignment
provided that Sprint remains primarily liable for the performance of its
obligations hereunder. Neither party to this Agreement may assign, pledge,
encumber or hypothecate its interest in this Agreement or any of its rights
hereunder or delegate its obligations hereunder without the prior written
consent of the other party to this Agreement, which consent shall not be
unreasonably withheld, and any attempted assignment which does not comply fully
with this Article 23.1 shall be null and void.
23.2 Governing Law. This agreement shall be construed in
accordance with and governed by the law of the State of Kansas without regard
to the conflict of law provisions of such state or any other jurisdiction.
23.3 Laws and Regulations. The parties hereby agree to comply
with all local, municipal, state, federal, foreign, governmental and regulatory
laws, orders, codes, rules and regulations that are applicable to their
respective performance of this Agreement.
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Agreement Number: KC103251ML
23.4 Amendment. Any provision of this Agreement, or any schedule,
exhibit or rider hereto, may be amended only if such amendment is in writing
and signed by all the parties hereto.
23.5 Waiver. Any waiver or delay in the exercise by either
party of any of its rights under this Agreement shall not be deemed to
prejudice such party's right of termination or enforcement for any further,
continuing or other breach by the other party.
23.6 Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective permitted successors and permitted assigns.
23.7 Public Disclosures. Neither party will issue or release for
publication any written or recorded, audibly, magnetically or otherwise,
materials relating to the existence of this Agreement, the Deliverables or any
services to be performed pursuant to this Agreement without the prior written
consent of the other party.
23.8 Severability. Whenever possible, each provision of this
Agreement, as well as any schedule, exhibit or rider attached hereto, will be
interpreted in such manner as to be effective and valid under applicable law,
order, code, rule or regulation, but if any provision of this Agreement, as
well as any schedule, exhibit or rider hereto, is held to be invalid, illegal
or unenforceable in any respect under any applicable law, order, code, rule or
regulation, such invalidity, illegality or unenforceability will not affect any
other provision, schedule, exhibit or rider of this Agreement, but this
Agreement, schedule, exhibit or rider will be reformed, construed and enforced
in such jurisdiction as if such invalid, illegal or unenforceable provision,
schedule, exhibit or rider had never been contained herein or attached hereto.
23.9 Descriptive Headings. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a part of
this Agreement.
23.10 Counterparts. This Agreement may be executed in separate
counterparts each of which will be an original and all of which taken together
will constitute one and the same agreement.
23.11 Relationship of Parties. Neither Supplier, its
subcontractors, employees or agents shall be deemed to be employees or agents
of Sprint, it being understood that Supplier, its subcontractors, employees or
agents are independent contractors with respect to Sprint for all purposes and
at all times. This Agreement shall not be construed as establishing a
partnership or joint venture between Sprint and Supplier.
23.12 Supersession of PO. The terms and conditions of this
Agreement supersede any pre-printed terms and conditions on any Purchase Order,
both front and back, unless otherwise agreed by the parties in writing.
ARTICLE 24. INCORPORATION OF DOCUMENTS
This Agreement hereby incorporates by reference the following
Exhibits:
EXHIBIT A. CUSTOMER SERVICE REQUEST PROCESS
EXHIBIT B. SPRINT TECHNICAL REQUIREMENTS
EXHIBIT C. PRICE SCHEDULE
EXHIBIT D. PROPRIETARY INFORMATION AGREEMENT
EXHIBIT E. SPRINT ROUTING INSTRUCTIONS
In the event of an inconsistency or conflict between or among the
provisions of this Agreement, the inconsistency shall be resolved by giving
precedence in the following order:
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Agreement Number: KC103251ML
(a) Agreement
(b) Exhibits
(c) Purchase Orders (excluding any preprinted terms and
conditions)
ARTICLE 25. DEFINITIONS
25.1 "Affiliated Entity" shall mean any current or hereinafter
acquired corporation, partnership, joint venture or other entity controlled by
or under common control with Sprint Corp., directly or indirectly by or through
one or more intermediaries or which Sprint Corp. has a minimum of *
or similar interest therein. Affiliated Entities are permitted to purchase
Deliverables under the terms and conditions of this Agreement.
25.2 *
25.3 "Catastrophic Failure" shall mean any event where/when a
large amount of Sprint equipment fails at a site or multiple sites thus
rendering Supplier's Equipment to be inoperable due to Acts of God or acts not
within Sprint's control, and such repair of Equipment is beyond the normal
repair and return or sparing capabilities established for routine maintenance.
Such events shall include but not be limited to floods, fires, malicious acts,
vandalism and sabotage.
25.4 "CD ROM" shall mean compact disc read only memory.
25.5 "Customer" shall mean any end user customer of Supplier.
This term shall include the customers and Supplier's any affiliates,
subsidiaries, distributors, agents, licensees or other parties authorized to
sell, distribute, market or otherwise make Supplier's products available to
telecommunications companies. The term customer shall include Sprint.
25.6 "Deliverable(s)" shall mean all products and Services
required to be delivered by this Agreement or any Purchase Order issued
pursuant to this Agreement.
25.7 "Documentation" shall mean such written instructions, manuals,
practices, descriptions, and similar information relating to installation,
maintenance, provisioning, commissioning, testing, operations, and
troubleshooting, command manuals, and general descriptions as are necessary for
a reasonable Sprint employee to engineer, order, install, provision, maintain,
operate, test, and troubleshoot the Deliverables or perform his/her function in
relation to this Agreement.
25.8 "DVT" shall mean design verification testing which shall be
performed in accordance with Exhibit B and which includes verifying that the
general mechanical design characteristics such as thermal shock, vibration,
earthquake zone 4 component damage, etc. meet Sprint's Technical Requirements.
25.9 "EMS Software" shall mean Ciena's WaveWatcher(TM) element
management system Software.
32
Agreement Number: KC103251ML
25.10 "Equipment" shall mean Supplier's MultiWave(TM) division
multiplex product line with embedded equipment software systems comprising line
amplifiers, remodulators, ancillary system components, and other items and
spare parts with respect to any of the foregoing.
25.11 *
25.12 *
.
25.13 *
.
25.14 "Executable Code" shall mean machine readable code (Software
Binaries) used by the Equipment for execution of System Software programs.
25.15 "FAT" shall mean factory acceptance testing which test(s) may
be conducted at either Supplier's or Sprint's premises for the purpose of
initially validating the functionality of the Deliverables or subsequent
Product Changes with respect to Interoperability with Supplier's Equipment or
Third Party Software in accordance with the Technical Requirements.
25.16 "Final Acceptance" shall mean acknowledgment in writing by
Sprint that the initial Deliverables, or subsequent Product Changes to such
Deliverables, operate satisfactorily in a production, traffic-bearing
environment and otherwise meet the Technical Requirements and that final copies
of all pertinent Documentation (including training Documentation) have been
approved and delivered to Sprint.
25.17 "First Installations" shall mean * ,
which segments are set forth in Section 1.4).
25.18 "Interoperability" shall mean the ability of all Equipment to
interconnect and successfully operate with all other Equipment, Licensed
Software and the equipment of other suppliers which complies with SONET
standards or, for FOT asynchronous terminals and regenerators, which have been
otherwise certified by Supplier and Sprint in accordance with paragraph 2.2 of
Exhibit B for Interoperability.
33
Agreement Number: KC103251ML
25.19 "Item" shall mean any Software item listed in Supplier's
standard price list on the date this Agreement becomes effective or at any time
thereafter and it shall specifically include, without limitation, all Software
Upgrades, Software Feature Enhancements, Equipment Upgrades, Equipment Feature
Enhancements and modifications, enhancements, updates or other revisions of any
kind in any such item and spare parts with respect to any of the foregoing.
25.20 "Licensed Software" shall mean System Software, EMS Software,
and Third Party Software, each of which in machine-readable form, and
subsequent Software Upgrades and Software Feature Enhancements, necessary to
install, operate, and maintain the Deliverables purchased or licensed by Sprint
pursuant to this Agreement.
25.21 "Life of System" shall mean * after the Effective
Date.
25.22 "Net Price" shall mean the final price paid by any Customer
after all sales discounts, price reductions, sales rebates, volume discounts or
similar adjustments of any kind are applied, whether under the original
contract of purchase or any supplemental, separate, or complimentary
transaction.
25.23 "Network Element" shall mean a material component of the Fiber
Optic Transmission System, such as an optical amplifier or end node at a given
site or node in the network.
25.24 "Purchase Order" shall mean the document issued by Sprint
which identifies the Deliverables and specifies the scope of work, Technical
Requirements, quantities and dates for delivery, billing instructions, and any
other necessary information.
25.25 "Regenerator" shall mean a receiver and transmitter
combination used to reconstruct signals for digital transmission.
25.26 "Services" shall mean the services provided by Supplier to
Sprint as specified in a Purchase Order to the extent such Services are not
included in the supply of other Deliverables.
25.27 *
.
25.28 "Soak Test(s)" shall mean those tests which are conducted in a
field environment in the Sprint network using actual Equipment and/or Licensed
Software that is intended to be deployed by Sprint. Such tests will be
conducted according to Exhibit B and will comprise the configuration as
determined by Sprint and as such is available from Supplier at that time in
order to determine the ability of the Deliverables to meet the Technical
Requirements in live traffic circumstances.
25.29 "Software" refers to all the programs, computer languages,
and operations used to make Equipment perform a useful function or used to
enable human access to the Equipment for the purposes of installing, operating,
or maintaining such Equipment
25.30 *
34
Agreement Number: KC103251ML
.
25.31 *
.
25.32 *
.
25.33 "SONET" shall mean a Synchronous Optical Network which adheres
to the interface standard of the same name created by the Exchange Carriers
Standards Association for the American National Standards Institute ("ANSI"),
and promulgated by Bellcore on behalf of the Regional ▇▇▇▇ Operating Companies.
25.34 "Source Code" shall mean all intellectual information
including but not limited to Documentation, Software in human-readable form,
flow charts, schematics and annotations which comprise the pre-coding detailed
design specifications for System Software (excluding Third Party Software).
25.35 "System" shall mean a configuration of Equipment with two (2)
end terminals, any intermediate line amplifiers connected by fiber to the end
terminals, all associated Software, which meets the Technical Requirements, and
with the ability to communicate to an element management system such that
traffic can be transmitted from end terminal to end terminal and operation can
be monitored by the element management system.
25.36 "System Software" shall mean computer programs and routines,
with embedded Third Party Software, integral to a Deliverable and contained on
a magnetic tape, disk, semi-conductor device, or other memory device or system
memory and consisting of (a) hard-wired logic instructions which manipulate
data in the central processor and control input-output operations, and error
diagnostic and recovery routines, and (b) other instruction sequences in
machine readable code, as well as associated Documentation used to describe,
maintain or use such programs and routines.
25.37 "Technical Requirements" shall mean (i) the specifications set
forth in Exhibit B or as such specifications may be most currently modified or
amended pursuant to mutual agreement of the parties, (ii) any mandatory
requirements and/or standards recognized in the telecommunications industry,
as such standards may be most currently modified or amended with respect to a
SONET System in use or designated for use in the Sprint Network for
transmission line rates up to OC-48, (iii) Backwards Compatibility, (iv)
Interoperability.
25.38 "Third Party Software" shall mean Software which is
independently developed by a third party, sub licensed to Sprint under this
Agreement or otherwise provided with the Deliverables hereunder.
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Agreement Number: KC103251ML
ARTICLE 26. ENTIRE AGREEMENT
This Agreement together with all Exhibits and Attachments constitutes
the entire Agreement between Sprint and Supplier with respect to the subject
matter hereof and supersedes all prior agreements and understandings, both
written and oral, between the parties with respect to such subject matter, and
except as provided in Article 19, is not intended to confer upon any person
other than the parties hereto any rights or remedies hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized representatives as of the day and year
below written.
CIENA CORPORATION SPRINT\UNITED MANAGEMENT COMPANY
BY: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ BY: /s/ ▇▇▇▇▇ FOXLEMAN
------------------------- ------------------------
TITLE: President & CEO TITLE: Acting A-VP, M & SM
------------------------ ------------------------
DATE: December, 14, 1995 DATE: December, 14 1995
--------------------------- ------------------------
36
Agreement Number: KC103251ML
EXHIBITS
EXHIBIT A. CUSTOMER SERVICE REQUEST PROCESS
*
EXHIBIT B. SPRINT TECHNICAL REQUIREMENTS
*
EXHIBIT C. PRICE SCHEDULE
*
EXHIBIT D. NON DISCLOSURE AGREEMENT
37
Agreement Number: KC103251ML
Exhibit D
EXHIBIT D
Proprietary Information Agreement
WAVE DIVISION MULTIPLEX EQUIPMENT
(HARDWARE AND SYSTEM SOFTWARE
AND ELEMENT MANAGEMENT SYSTEM)
BETWEEN
SPRINT/UNITED MANAGEMENT COMPANY
AND
CIENA CORPORATION
Sprint Proprietary Informaiton
38
PROPRIETARY INFORMATION AGREEMENT
This Agreement is made effective as of January 25, 1995, by SPRINT
COMMUNICATIONS COMPANY L.P., a Delaware limited partnership ("Company"), and
Ciena Corp., A Delaware Corporation ("Participant"), in order to protect
certain Proprietary Information which may be disclosed. The parties agree as
follows:
1. The Proprietary Information disclosed under this Agreement is
described as
See attachment.
2. The party/parties disclosing information are:
Sprint and Ciena
3. The party representatives for disclosing or receiving information are:
Company: Ciena Corporation
Participant: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
4. This Agreement only relates to Proprietary Information disclosed
between the effective date of this Agreement and is effective for
five years from the date of the last disclosure of confidential
information, at which time it will terminate.
5. A party receiving Proprietary Information ("Recipient") has a duty to
protect the information for 5 years from the date of receipt.
6. A recipient may only use the Proprietary Information for the purpose of
evaluating possible use or application of products in Company's
network.
7. Recipient shall protect the Proprietary Information from unauthorized
use or disclosure by exercising the same degree of care that Recipient
uses with respect to information of its own of a similar nature, and
recipient shall not use less than reasonable care.
8. The Proprietary Information which Recipient must protect shall
Page 1 of 3
39
only include tangible information (such as written materials, models
and specimens) which is clearly identified as being Proprietary
Information by an appropriate, conspicuous legend (such as
"RESTRICTED"). If the Proprietary Information is in oral or visual
form, it must be identified as being Proprietary Information at the
time of disclosure and the disclosing party must confirm the substance
of the oral or visual disclosure which is considered Proprietary in a
written memorandum delivered to the receiving party within thirty (30)
days after the disclosure.
9. Recipient shall have no obligation to protect information which:
a) was known or available to Recipient prior to this Agreement:
b) is or becomes available to the public, other than breach of
this Agreement;
c) is disclosed by ("Discloser") the disclosing party to a third
party without restrictions as to disclosure;
d) becomes known to Recipient by a third party without
restrictions as to disclosure;
e) is independently developed by Recipient; or
f) is disclosed pursuant to Governmental action and no suitable
protective order or equivalent is available.
10. Neither party has an obligation to disclose any Proprietary
Information.
11. Each Discloser warrants that it has the right to disclose all
Proprietary Information disclosed and each Discloser agrees to
indemnify and hold harmless Recipient from all claims related to the
disclosure of a third party's information.
12. This Agreement shall be interpreted and applied in accordance with the
laws of the State of Kansas.
13. This Agreement grants no rights of ownership, licenses or any other
intellectual property rights.
14. This Agreement shall not be construed as creating any agency,
partnership, joint venture or any other such relationship.
15. This Agreement is subject to all of the laws and regulations of the
U.S. Government. The exporter in the case of exports or the importer
in the case of imports, shall be responsible for obtaining any
necessary export licenses, import licenses or other governmental
authorizations.
16. This Agreement may only be changed or modified by an agreement in
writing signed by authorized representatives of each party.
Page 2 of 3
40
Ciena Corporation SPRINT COMMUNICATIONS COMPANY L.P.
-----------------------------------
▇▇▇▇-▇ ▇▇▇▇▇▇ ▇▇▇▇ 8140 ▇▇▇▇ Parkway
-----------------------------------
Hanover, MD 21076 ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
-----------------------------------
By: [sig] By: [sig]
-------------------------------- --------------------------------
Title: President & CEO Title: Director Engr
----------------------------- -----------------------------
Date: January 24, 1995 Date: 1/25/95
------------------------------ ------------------------------
Page 3 of 3
41
Proprietary Information Agreement Attachment
Any and all information relating to the Participant's products strategy,
customer base and personnel, including but not limited to intellectual
property, project pricing, product features, delivery schedules, sales,
presentations, target customers, account strategies, and the Participant's
financial position. Any information relating to the Company's network, network
development, product requirements, and project plans.
EXHIBIT E. SPRINT ROUTING INSTUCTIONS
*