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CERTAIN CONFIDENTIAL TREATMENT CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS,
HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
EXHIBIT 10.14
OEM RESELLER AGREEMENT
between
NORTHERN TELECOM INC.
and
FVC CORPORATION
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TABLE OF CONTENTS
ARTICLE TITLE PAGE
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I DEFINITIONS 3
II GRANT OF RIGHTS 4
III PURCHASE AND SALE OF PRODUCTS 5
IV ACCEPTANCE 6
V WARRANTIES 7
VI SUPPORT SERVICES 8
VII INTELLECTUAL PROPERTY INFRINGEMENT INDEMNITY 9
VIII ENGINEERING CHANGES 10
IX REVISIONS 10
X CONFIDENTIAL 10
XI DEFAULT AND TERMINATION 11
XII INDEPENDENT CONTRACTORS 13
XIII NOTICES AND REQUESTS 13
XIV GENERAL13
Schedule A AUTHORIZED TERRITORY 16
Schedule B PRODUCTS AND PRICING 17
Schedule C SUPPORT SERVICES 19
Schedule D TRAINING 24
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OEM RESELLER AGREEMENT
This OEM Reseller AGREEMENT is entered into as of this 1st day of May, 1997,
("EFFECTIVE DATE") by and between Northern Telecom Inc.,, a Delaware corporation
having an office at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇ ("NTI") on its behalf and on behalf of all of the Northern Telecom
Companies (collectively referred to herein as "NORTEL"), and First Virtual
Corporation, a California corporation having its principal place of business at
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("FVC).
RECITALS
WHEREAS, NORTEL is engaged in the design, manufacture and sale of a wide range
of telecommunications equipment and has a desire to further expand in the
LAN-based video applications market,
AND WHEREAS, FVC is engaged in the design, manufacture and sale of multimedia
networking products, including 25 Mb/s ATM switches, 25 Mb/s ATM network
interface cards, multimedia operating software known as 'MOS', and other
multimedia server products,
AND WHEREAS, the parties wish to provide for the right and option of NORTEL to
purchase versions of products, manufactured by FVC, for resale by NORTEL, as
described in this AGREEMENT,
NOW THEREFORE, in consideration of the mutual promises, rights and obligations
herein contained, the receipt and sufficiency of which is hereby acknowledged,
THE PARTIES AGREE AS FOLLOWS:
ARTICLE I - DEFINITIONS
Terms in this AGREEMENT other than names of parties and Article headings which
are in capital letters shall have the meanings set forth in this Article I for
all purposes in connection with this AGREEMENT.
1.1 "AGREEMENT" as used herein shall mean this OEM Reseller AGREEMENT, as
amended, modified, supplemented or otherwise altered from time to time.
1.2 "AUTHORIZED DISTRIBUTORS" as used herein shall mean any company which
has been authorized by NORTEL to distribute one or more of the Northern
Telecom product lines.
1.3 "AUTHORIZED TERRITORY" as used herein shall mean the countries listed in
Schedule A, which is attached hereto and is by this reference made a
part of the AGREEMENT.
1.4 "DOCUMENTATION" as used herein shall mean FVC's sales and marketing
literature, or FVC's product specifications that may be used to either
market, describe, analyze or test the PRODUCTS.
1.5 "HARDWARE" as used herein shall mean the items of hardware identified in
Schedule B, which is attached hereto and is by this reference made a
part of the AGREEMENT.
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1.6 "MANUFACTURING LICENSEES" as used herein shall mean those third parties
properly authorized and empowered by NORTEL to manufacture and market
products under its or their own corporate name(s), under a private
brand, or under a Northern Telecom name and, as a result, require
certain rights to software which are substantially similar in scope to
those granted directly to NORTEL by the AGREEMENT. The parties agree
that MANUFACTURING LICENSEES shall not have any rights to copy or
manufacture any of the PRODUCTS, except as noted in Section 2.3 of the
AGREEMENT.
1.7 "NORTHERN TELECOM COMPANIES" means Northern Telecom Limited and those
legal entities which are owned or controlled fifty (50%) percent or more
by it. Each Northern Telecom company shall become bound by this
Agreement when it elects to exercise any rights hereunder.
1.8 "PRODUCT(S)" as used herein shall mean either or both of the items of
HARDWARE and SOFTWARE as described and referred to in the AGREEMENT.
1.9 "Revision"s used herein shall mean an upgrade of the SOFTWARE in which
new functionality and/or bug fixes, inclusive of any new DOCUMENTATION,
are supplied.
1.10 "SOFTWARE" as used herein shall mean the standard product offering from
FVC's or FVC's suppliers' copyrighted computer programs (or any subset
thereof) which may be identified in Schedule B.
1.11 "TERM" as used herein shall mean the period beginning upon the EFFECTIVE
DATE and continuing until December 31, 1998, during which time PRODUCT
may be purchased by NORTEL hereunder.
1.12 "WARRANTY PERIOD" as used herein shall mean; three (3) years for
HARDWARE, one (1) year for SOFTWARE, ninety (90) days for media, in each
case calculated from the date of delivery to NORTEL.
ARTICLE II - GRANT OF RIGHTS
2.1 In accordance with and subject to the terms and conditions of the
AGREEMENT, FVC agrees to license and NORTEL shall have the right to
receive PRODUCTS from FVC at the prices set forth in Schedule C during
the TERM of the AGREEMENT.
2.2 FVC hereby grants to NORTEL the non-exclusive, non-transferable rights
to market, distribute and, in the case of SOFTWARE or REVISIONS,
sublicense PRODUCTS under the FVC trademark respectively applicable, if
any, either directly, or through MANUFACTURING LICENSEES, or through
AUTHORIZED DISTRIBUTORS, to end user customers in the AUTHORIZED
TERRITORY. Distribution of REVISIONS provided under this AGREEMENT are
for use solely in connection with the operation of the PRODUCTS acquired
by NORTEL during the TERM.
FVC further grants the following limited reproduction rights:
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NORTEL, MANUFACTURING LICENSEES, AUTHORIZED DISTRIBUTORS and end user
customers shall use each copy of SOFTWARE only on a single CPU at a time
(single CPU shall include systems with redundant processing units, but
only one user) and shall limit reproduction of SOFTWARE to such limited
number of copies as may be reasonably necessary for execution or
archival purposes only.
2.2.1 If NORTEL, or any MANUFACTURING LICENSEE, or AUTHORIZED
DISTRIBUTOR desires to distribute copies of the SOFTWARE in
countries outside of the AUTHORIZED TERRITORY, NORTEL, shall
first submit the name of such country or countries to FVC for
FVC's prior written approval, which approval shall not be
unreasonably withheld if FVC is afforded a minimum of ten (10)
days in which to make decision with respect to a particular
country and such country provides adequate copyright, trade
secret or similar legal and/or statutory protection to the
rights of FVC, the parties shall arrange to discuss the merits
of proceeding with the proposed distribution in such country and
the reservation and/or objections of FVC in an effort to reach a
mutually satisfactory resolution.
2.2.2 NORTEL understands and agrees that the SOFTWARE, and any copies
thereof acquired or reproduced hereunder, and any direct product
thereof, are subject to the export control laws and regulations
of the United States, and any amendments thereof and agrees that
it shall not export the SOFTWARE to any country unless it has
received all necessary export permits and licenses.
2.3 FVC hereby grants to NORTEL the non-exclusive rights to use, translate,
reproduce in conjunction with translations only, and distribute, either
directly, or through MANUFACTURING LICENSEES, or through AUTHORIZED
DISTRIBUTORS to end user customers in the AUTHORIZED TERRITORY, the
DOCUMENTATION. The right to reproduce copies of DOCUMENTATION shall
include the right to have such reproduction performed by another party
on NORTEL's behalf, subject to reasonable obligations relating to
confidentiality and protection of FVC's proprietary rights.
2.4 All SOFTWARE shall be distributed under the then current software
license agreement (or an agreement in which similar language is
contained) that NTI uses in distribution of either proprietary or
non-proprietary software applications.
2.5 FVC hereby grants to NORTEL the right to distribute copies of REVISIONS,
either directly or indirectly through MANUFACTURING LICENSEES and
AUTHORIZED DISTRIBUTORS to end user customers.
ARTICLE III - PURCHASE AND SALE OF PRODUCTS
3.1 NORTEL may, at its option, purchase PRODUCTS from FVC by placing written
orders under this AGREEMENT. N0RTEL has no obligation to order a minimum
amount of any type of PRODUCT. FVC agrees to manufacture and deliver
PRODUCTS to NORTEL in response to all orders placed under this
AGREEMENT, provided that such orders comply with the terms of this
AGREEMENT.
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3.2 Each order placed by NORTEL for PRODUCTS shall be governed by the terms
of this AGREEMENT; conflicting or additional terms provided in any order
by NORTEL or acknowledgment by FVC shall be of no effect unless
specifically accepted in writing by an authorized representative of
NORTEL and FVC. Each order shall specify:
(a) Description of PRODUCT models and any options (including
applicable item numbers and part numbers)
(b) Purchase price
(c) Specified delivery schedule
3.3 Orders placed at least ninety (90) days prior to the requested shipment
date shall be shipped within five (5) days of such requested ship date.
Where the requested shipment date is less than ninety (90) days from the
date on which NORTEL placed the order, FVC shall within five (5) days of
receipt of such order either confirm the shipment date or propose an
alternate shipment date which shall be a date not more than ninety (90)
days from the date on which NORTEL placed the order, and FVC shall ship
the order within five (5) days of the confirmed shipment date or
alternate shipment date as the case may be. In the event that FVC fails
to either confirm the shipment date or propose an alternate shipment
date within such five (5) day period, FVC agrees that it shall ship the
order within five (5) days of the requested shipment date. All shipment
dates will be postponed as necessary during the existence of a force
majeure event. FVC agrees that, as a genuine estimate of liquidated
damages and not as a penalty, in the event that FVC fails to ship any
order within [ * ] days of the requested shipment date (or alternate
shipment date as the case may be) then for each week thereafter until
such order is shipped, the [ * ] purchase price payable by NORTEL in
respect of such order shall be reduced by [ * ].
3.4 NORTEL may cancel or reduce the quantity of any order without liability
on or before 30 days in advance of the ship date specified in NORTEL's
order without cancellation charge. NORTEL may cancel, or reduce the
quantity of any order 15 to 29 days in advance of the ship date
specified in NORTEL's order by paying FVC [ * ]of the canceled
PRODUCT(S). NORTEL may postpone the delivery of any portion of an order
one time for up to 180 days without any liability by delivering written
notice to FVC on or before 30 days in advance of the ship date specified
in NORTEL's order.
3.5 Prices for the PRODUCTS shall be those set forth in Schedule B, less all
applicable discounts. Prices exclude all freight-in and insurance as
provided by this AGREEMENT. All prices are exclusive of any tax levied
or based on the equipment, (collectively "Taxes"). NORTEL shall pay such
Taxes (other than income and franchise taxes of FVC), or provide FVC
with a certificate of exemption acceptable to the appropriate taxing
authority. Payment for the PRODUCTS shall be due within 30 days of
shipment, subject to acceptance of the products by NORTEL as provided
for in this AGREEMENT. For payment purposes, products will be deemed
accepted unless rejected within ten (10) business days. Payment for all
charges shall be due within 30 days of date of invoice, unless otherwise
specified in this AGREEMENT. NORTEL shall withhold any applicable
withholding tax from payments made to FVC pursuant to this AGREEMENT.
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
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3.6 PRODUCTS shipped in response to NORTEL's orders will be shipped F.O.B.
origin. Title shall pass to NORTEL upon shipment of the respective
PRODUCTS.
3.7 To assist FVC in delivering PRODUCTS, NORTEL's Product Line Manager
agrees to provide FVC with quarterly six (6) month rolling forecasts for
its projected orders for PRODUCTS. The provision of such forecast shall
in no way bind NORTEL to actually place orders for any such quantities
nor otherwise expose NORTEL to any liability.
3.8 Nothing in this AGREEMENT shall be construed as requiring that NORTEL
order any specific minimum amount of PRODUCT.
3.9 In the event of termination or expiration of this AGREEMENT, NORTEL,
will be entitled, at its option, to place a non-cancelable order for a
"life cycle purchase" of any combination of PRODUCTS at least 15 days
prior to the effective date of such termination or expiration, for
delivery within 180 days after the effective date of AGREEMENT
termination or expiration.
3.10 FVC will make available to NORTEL spare, replacement, and maintenance
parts necessary to enable NORTEL to support the PRODUCTS for a period of
at least five years after the date of the last delivery of the product
to NORTEL. FVC will make these parts available to NORTEL in accordance
with the discounts described in Schedule B.
ARTICLE IV - ACCEPTANCE
4.1 The parties acknowledge the requirement that the PRODUCTS be supplied
with as close to a "zero defect rate" as is practically possible. Each
PRODUCT is subject to final inspection and acceptance at NORTEL's
facility within 10 business days after delivery. FVC will follow good
manufacturing practices (equivalent to IPC Class II for electrical
assembly) utilizing materials, techniques, and procedures which conform
to industry standards. FVC will make available to NORTEL, upon request,
information regarding FVC's quality assurance procedures. NORTEL may
conduct and observe tests and inspections at FVC's manufacturing plant
following one days' advance notice to FVC.
4.2 NORTEL shall have the right to conduct inspection testing to confirm
that the PRODUCT conforms to all DOCUMENTATION or other criteria,
specifications and warranties described in this AGREEMENT. FVC will
provide NORTEL with a complete set of top level assembly drawings of the
PRODUCT, which NORTEL may use in incoming inspection. If one or more
pieces of PRODUCT in a shipment fails to successfully pass the
Acceptance Tests, NORTEL shall deliver a deficiency report to FVC
promptly following the completion of the acceptance period. FVC shall,
in response to such report, immediately accept the return of and then
repair or replace the nonconforming PRODUCT within ten (10) days so that
it successfully passes all Acceptance Tests, all at FVC's sole expense,
or provide NORTEL with a refund of the amount paid for such
nonconforming PRODUCT.
4.3 In the event that NORTEL fails to provide FVC with written notification
of a non-conforming PRODUCT within ten (10) business days of receipt
thereof, the PRODUCT shall be deemed
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accepted. Exercise by NORTEL of its right to inspect and test PRODUCTS
shall not preclude or limit NORTEL's ability to assert any claim for
breach of warranty.
ARTICLE V - WARRANTIES
5.1 FVC warrants that FVC has full right, power and authority to enter into
the AGREEMENT and to grant all of the right, title and interest in the
intellectual property in the PRODUCTS herein granted, and that neither
the grant of such rights nor the exercise of such rights by NORTEL,
AUTHORIZED DISTRIBUTORS, MANUFACTURING LICENSEES, or any end user
customers shall constitute an infringement of any right of any third
person, nor are there are any claims, judgments or settlements to be
paid by FVC or pending claims or litigation relating to the intellectual
property in the PRODUCTS.
5.2 FVC warrants that HARDWARE delivered to NORTEL under this AGREEMENT
shall be materially free from defects in material and workmanship during
the applicable WARRANTY PERIOD and shall conform to the designs,
specifications and other criteria described in the DOCUMENTATION or in
this AGREEMENT.
5.3 FVC warrants that it will test each and every PRODUCT to ensure
conformance to the design, specifications and DOCUMENTATION before
delivery to NORTEL.
5.4 FVC warrants that all services performed under this AGREEMENT will be
performed in a professional manner and in accordance with the applicable
specifications under this AGREEMENT.
5.5 FVC represents and warrants during the WARRANTY PERIOD and thereafter
for so long as NORTEL is entitled to receive support services hereunder:
(a) that the SOFTWARE shall comply with all applicable
specifications;
(b) that the SOFTWARE, as supplied by FVC, contains no viruses, time
limiting codes or authorization strings except as identified in
writing to NORTEL prior to the date of this AGREEMENT.
5.6 FVC represents and warrants during the WARRANTY PERIOD and thereafter
for so long as NORTEL is entitled to receive support services hereunder:
(a) that if FVC is responsible for providing the media on which the
SOFTWARE is to be supplied, such media shall be free from
defects in materials and workmanship.
(c) that the DOCUMENTATION shall completely and accurately describe
the operation and functionality of the SOFTWARE in a reasonably
organized and coherent manner;
(d) that any services provided by FVC under the AGREEMENT, shall be
provided in a timely manner by qualified and competent personnel
knowledgeable in the technology.
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5.7 FVC represents and warrants that by January 1, 1998, all PRODUCTS
provided pursuant to this AGREEMENT, when used in accordance with
DOCUMENTATION, shall (i) process date and time related data without
causing any processing interruptions, abnormal terminations, or changes
in performance characteristics, and (ii) shall process and manipulate
all date and time related functions correctly. Without limiting the
generality of the foregoing, all PRODUCTS shall:
(a) correctly handle date and time related data before, during and
after January 1, 2000, including but not limited to accepting
date input, providing date output, and performing ongoing
operations on dates and portions of dates including, but not
limited to, calculating, comparing and sequencing of dates (in
both forward and backward operations spanning century
boundaries);
(b) correctly handle leap year calculations (including but not
limited to identification of leap years, interval calculations,
day-in-year calculations, day-of-the-week calculations, and
week-of-the-year calculations);
(c) correctly handle all two digit date and time related input in a
manner that resolves ambiguity as to century in a disclosed,
defined and predetermined manner; and
(d) correctly store and provide output of all date and time data in
a manner that is unambiguous as to century.
5.8 FVC shall immediately notify NORTEL of any and all date-related bugs,
errors or deficiencies in the PRODUCTS. For the purpose of problem
resolution, any such date related bugs, errors or deficiencies shall be
deemed to be bugs, errors or deficiencies of the highest priority level,
and shall be resolved according to the procedures provided for such
priority level.
5.9 During the WARRANTY PERIOD;
(a) If NORTEL discovers any defect or non-conformance in HARDWARE,
NORTEL shall promptly notify FVC of such nonconforming HARDWARE
and FVC shall provide NORTEL with a Return Material's
Authorization number ("RMA"). FVC agrees to accept the return of
HARDWARE that NORTEL determines does not meet the warranties
described in this Article VI. Upon NORTEL's receipt of the RMA,
NORTEL shall cause the return of the nonconforming HARDWARE to
FVC. Upon its receipt and at FVC's option and cost, FVC shall
promptly either repair or replace the non-conforming HARDWARE.
Properly repaired or replaced HARDWARE shall promptly be
delivered to NORTEL and the WARRANTY PERIOD therefor shall
continue for ninety (90) days following delivery of the returned
PRODUCT to NORTEL or the balance of the original WARRANTY PERIOD
for that PRODUCT, whichever is longer. FVC shall bear the cost
for shipment of PRODUCTS for warranty repair to NORTEL's North
American facilities.
(b) If NORTEL discovers any errors, bugs or defects in SOFTWARE, FVC
shall promptly provide NORTEL with a suitable patch, fix or
work-around sufficient to enable the PRODUCT to operate in
accordance with this AGREEMENT. At its option, NORTEL may
download REVISIONS from FVC's Internet Web site if the
non-conforming SOFTWARE can be repaired
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by such REVISION. These remedies and in addition to any others
which may be provided by this AGREEMENT or by law.
5.10 The warranty provisions contained in this Article V do not include
damages due to inadequate operating environment, accident, disaster,
neglect, abuse, misuse, or alterations made without approval by FVC. THE
FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND OF
FITNESS FOR A PARTICULAR PURPOSE.
ARTICLE VI - SUPPORT SERVICES
6.1 Following expiration of the applicable WARRANTY PERIOD and subject to
NORTEL'S purchase of the services referenced herein, FVC shall provide
NORTEL with the technical assistance and maintenance support described
in Schedule D. NORTEL, MANUFACTURING LICENSEES, AUTHORIZED DISTRIBUTORS
or NORTEL'S contracted maintenance co-providers will perform first and
second level maintenance for PRODUCTS delivered to end-users in
accordance with this AGREEMENT, and FVC will provide factory level
support to NORTEL to enable it to perform satisfactory maintenance of
the PRODUCT for NORTEL's customers. Technical support escalations shall
generally proceed as follows:
First Event: End-user customer calls NORTEL, MANUFACTURING LICENSEE,
AUTHORIZED DISTRIBUTOR or maintenance co-provider to report a problem
with PRODUCT.
Second Event: NORTEL entity attempts to solve the problem using its
internal support resources.
Third Event: NORTEL escalates the problem if unsolved after Second Event
to higher level NORTEL technical support.
Fourth Event: NORTEL escalates the problem if unsolved after Third Event
to FVC technical support.
6.2 Upon request by NORTEL, FVC shall provide NORTEL with training and/or
consulting services, subject to NORTEL'S purchase of such services at
pricing described in Schedule D. Such training shall include detailed
training on the PRODUCTS, REVISIONS, and sales and support training.
Consulting services will generally assist in the enhancement of the
PRODUCTS and in the development of technology intended to operate in
conjunction with the PRODUCTS.
ARTICLE VII - INTELLECTUAL PROPERTY INFRINGEMENT INDEMNITY
7.1 FVC shall defend, indemnify and hold NORTEL, MANUFACTURING LICENSEES,
AUTHORIZED DISTRIBUTORS and all end user customers harmless from any and
all claims, costs, expenses, damages or other liability, including
reasonable attorneys' fees, which arise out of any patent, trademark,
moral right or copyright infringement claims or claims based on
misappropriation of trade secret rights arising out of or relating to
the use, copying or distribution of the PRODUCT in the AUTHORIZED
TERRITORY. NORTEL shall notify FVC promptly, in writing, in the event of
any such claim, and grant to FVC the right, at FVC's expense, to control
the
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defense thereof, including the sole right to settle any such claim or
suit on such terms as FVC shall deem desirable. If the use, copying or
distribution of the PRODUCT or use of the FVC tradename or trademarks
under which the PRODUCT is distributed are held to constitute an
infringement and enjoined in one or more countries within the AUTHORIZED
TERRITORY, FVC shall, at its own expense and option, (i) procure for
NORTEL, MANUFACTURING LICENSEES, AUTHORIZED DISTRIBUTORS and end user
customers the right to continue using and distributing the PRODUCT, or
(ii) modify the PRODUCT so that it becomes non infringing, while
maintaining to the extent possible the same form and function, or (iii)
replace the PRODUCT with a non infringing substitute, while maintaining
to the extent possible the same form and function.
7.1.1 FVC shall not have any liability to NORTEL under Section 7.1 for
infringement and/or misappropriation, or claims thereof, that
are based upon (i) the use of PRODUCT in combination with
hardware and/or software furnished by a third party if such
infringement and/or misappropriation, or claim thereof, would
have been avoided by the use of such PRODUCT in combination with
different hardware and/or software or to the extent such use is
possible, use of such PRODUCT without any combination.
7.2 NORTEL will defend at its own expense any action brought against FVC by
a third party, to the extent that it is based on any warranties made by
NORTEL to a third party in excess of the warranties given by FVC under
this AGREEMENT. NORTEL's obligations under the preceding are subject to
the conditions that: (i) FVC promptly notifies NORTEL in writing of any
such claim, and (ii) NORTEL will have sole control of such defense and
all negotiations for any settlement or compromise, although FVC may
participate in the same at its expense.
7.3 NORTEL reserves all proprietary rights in all original works, computer
programs, discoveries, inventions, patents, know-how, techniques,
designs, maskworks, engineering details and other data developed by
NORTEL, including all information relating to the network management
interface circuitry and technology disclosed to FVC by NORTEL, except
that any DOCUMENTATION created as a result of a NORTEL translation shall
be jointly owned by FVC and NORTEL.
7.4 FVC reserves all proprietary rights in all original works, computer
programs, discoveries, inventions, patents, know-how, techniques,
designs, maskworks, engineering details and other data developed by FVC,
including all information relating to the network management interface
circuitry and technology disclosed to NORTEL by FVC.
ARTICLE VIII - ENGINEERING CHANGES
8.1 FVC reserves the right to make engineering changes to the PRODUCTS at
any time which are (i) necessary to comply with changed safety or
environmental standards and other environmental regulations, (ii)
necessary to make the product non-infringing with respect to any patent,
copyright or other proprietary interest, or (iii) for the purpose of
improving the quality, reliability or manufacturability of the PRODUCTS,
provided that all such changes reflect changes being made by FVC
simultaneously to the corresponding FVC standard products, and such
changes do not adversely impact the operation of the PRODUCTS with
NORTEL systems
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8.2 In the event FVC chooses to make engineering changes to a PRODUCT as
Permitted pursuant to Section 8.1, FVC will notify NORTEL's Product Line
Manager by electronics mail or facsimile not less than thirty (30) days
prior to implementation of any planned permanent or temporary changes to
the PRODUCTS which impact form, fit or function, or safety,
environmental or other governmental compliance of the PRODUCTS. The
notice will include a summary of the expected impact of any such planned
change on the above listed characteristics of the PRODUCTS. NORTEL shall
have the right to cancel outstanding orders for any PRODUCTS that are
subject to such changes without incurring any penalty.
ARTICLE IX - REVISIONS
9.1 FVC will notify NORTEL of REVISIONS not otherwise included as
engineering changes in accordance with Article VIII.
9.2 If such REVISIONS are provided to any other customers at no additional
charge, there will be no increase in the unit price for PRODUCTS under
this AGREEMENT. If FVC charges its other customers for such REVISIONS,
FVC shall only be required to provide such REVISIONS to NORTEL upon
AGREEMENT with NORTEL regarding an increased unit price which shall not
exceed the applicable price increase for FVC's standard product
offering.
9.3 REVISIONS shall be provided to NORTEL at no charge so long as NORTEL is
under contract for support services.
ARTICLE X - CONFIDENTIALITY
10.1 Any information designated as "Confidential", "Restricted" or
"Proprietary" in writing by the disclosing party prior to disclosure
shall be considered confidential information under the AGREEMENT. In the
case of any oral disclosure of confidential information, such
information shall be treated as confidential if the disclosing party (a)
states that such information is confidential at the time of disclosure,
and (b) summarizes such information in a writing setting forth the date,
nature and extent of the oral disclosure and indicating the same to be
confidential, and delivers such written summary to the other party
within thirty (30) days after the date of such oral disclosure.
10.2 The parties shall use reasonable efforts and at least the same care that
each uses to protect its own confidential information of like
importance, to prevent unauthorized dissemination or disclosure of the
other party's confidential information during and for three (3) years
following the last day of the TERM.
10.3 The confidentiality obligations set forth in this Article X will not
apply to any information that:
(a) becomes known to the general public without fault or breach on
the part of the receiving party;
(b) either party customarily provides to others without restriction
on disclosure;
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(c) the receiving party lawfully obtains from a third party provided
that the receiving party observes the restrictions on
disclosure, if any, imposed by such third party;
(d) is furnished to a third party by the disclosing party without a
similar restriction on such third party's rights;
(e) can by written records be shown to have been known by the
receiving party at the time of disclosure;
(f) is developed independently by the receiving party without using
any information as defined in Section 10.1 which is received
from the disclosing party.
10.4 Me parties agree and acknowledge that any confidential and proprietary
information of the other party in its possession shall, upon termination
of the AGREEMENT and upon the request of the other party, be returned to
the disclosing party.
10.5 Neither party shall publicly disclose any information regarding the
terms and conditions contained herein without having received prior
approval, in writing, from the other party, unless such disclosure is
required by law or requested by potential investors (under obligation of
confidentiality) in either party.
10.6 Notwithstanding the foregoing in this Article, or any implication to the
contrary contained elsewhere in this AGREEMENT, nothing herein shall be
construed as precluding or preventing NORTEL from using, on an
incidental basis, the residuals of the Confidential Information or any
other confidential information for any purpose including use in the
development, manufacture, marketing and maintenance of its products and
services, provided that NORTEL or its Affiliates do not encourage its
employees to commit such Confidential Information to memory for later
use. In no event shall "residuals" include information or expression
protected by copyright, patent, or integrated circuit topography
legislation. Subject to the foregoing limitations, FVC hereby releases
NORTEL and its Affiliates from any claims whatsoever which it may have
with respect to its use of such residuals.
ARTICLE XI - DEFAULT AND TERMINATION
11.1 Any of the following shall constitute sufficient cause for a party to
the AGREEMENT to seek the remedies available to a non defaulting party,
as provided in Section 11.2 through 11.4:
(a) The failure of the other party to perform any material term,
condition or covenant of the AGREEMENT, unless such default has
been corrected within thirty (30) days of the date of receipt of
written notice of such default given by the non defaulting party
or where the default cannot be cured within such thirty (30) day
period, the defaulting party is taking reasonable steps to cure
the default, or where the default cannot be cured, the
defaulting party is taking reasonable steps to prevent a
reoccurrence;
(b) The other party is or becomes insolvent, or a party to any
bankruptcy or receivership proceeding or any similar action
affecting the financial condition of such other party, or
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seeks to make a compromise, arrangement or assignment F for the
benefit of its creditors, or ceases doing business in the normal
course.
11.2 In the event any act of default constituting sufficient cause pursuant
to either Section 11.1(a) or Section 11.1(b) shall occur, the party not
in default shall have the right to and may elect any or all of the
following remedies, which shall be cumulative and not exclusive:
(a) Declare the AGREEMENT to be immediately terminated.
(b) Pursue each and every remedy available at law and in equity.
11.3 In the event FVC is the defaulting party pursuant to Section 11.1 (a) or
(b) above, NORTEL shall, in lieu of terminating the AGREEMENT without
limiting any other remedies or claims it may have in law or in equity,
have the option of furnishing written notice to FVC of NORTEL's
intention to continue to perform the AGREEMENT under the following terms
and conditions:
(a) NORTEL's rights, with respect to any and all PRODUCTS or
REVISIONS distributed directly or indirectly (through
MANUFACTURING LICENSEES or AUTHORIZED DISTRIBUTORS) to end user
customers pursuant to the AGREEMENT, shall remain in full force
and effect.
(b) NORTEL shall make quarterly reports and payments of license fees
to FVC (or in the case of bankruptcy or insolvency on the part
of FVC, as instructed by the duly appointed trustee or
receiver). However, NORTEL may withhold payment of such license
fees pending settlement of any outstanding claims of NORTEL made
in good faith against FVC.
11.4 In the event the AGREEMENT is terminated by FVC for default by NORTEL,
FVC shall permit NORTEL to retain limited rights to use the SOFTWARE
thereafter for so long as necessary in order to allow NORTEL to satisfy
its then existing contractual obligations for software support of
SOFTWARE to MANUFACTURING LICENSEES, AUTHORIZED DISTRIBUTORS and end
user customers. The limited rights to use the SOFTWARE, as provided in
this Section 11.4, shall survive the termination or expiration of the
AGREEMENT.
11.5 Upon termination of the AGREEMENT, NORTEL shall, within thirty (30) days
following such termination, destroy its copies of the SOFTWARE and any
whole or partial reproductions thereof in any form, and all materials
related to the SOFTWARE which are still under the control of NORTEL, and
so certify in writing to FVC, except that NORTEL may retain a sufficient
number of copies of such SOFTWARE as is reasonably necessary for NORTEL
to fulfill its contractual obligations, as set forth in Section 11.4.
11.6 The foregoing rights of termination are in addition to all other rights
and remedies provided in this AGREEMENT or by law. Should NORTEL fail to
pay any sum when due under this AGREEMENT, other than any sum which is
the subject of a reasonable dispute, then if such failure continues for
a period of thirty (30) days after receipt of notice from FVC of such
failure, FVC shall have the right to terminate this AGREEMENT
immediately by giving written notice to NORTEL of
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its election to do so. The foregoing rights of termination are in
addition to all other rights and remedies which may be provided under
this AGREEMENT or by law.
11.7 The following provisions shall survive any termination of the AGREEMENT:
Section 3.9, Section 3.10, Article V, Article VI, Article VII, Article
X, Article XI, Article XII, Article XIII, Article XIV.
ARTICLE XII - INDEPENDENT CONTRACTORS
12.1 FVC and NORTEL, are independent contractors in all relationships and
actions under and contemplated by the AGREEMENT. The AGREEMENT is not to
be construed to create, or to authorize the creation of, any employment,
partnership, or agency relation or to authorize NORTEL or any
MANUFACTURING LICENSEES or AUTHORIZED DISTRIBUTORS to enter into any
commitment or agreement binding on FVC or to allow one party to accept
service of any legal process addressed to, or intended for, the other
party. NORTEL and the MANUFACTURING LICENSEES and AUTHORIZED
DISTRIBUTORS shall not make any warranties, guarantees or any other
commitments on behalf of FVC pursuant to the AGREEMENT.
ARTICLE XIII- NOTICES AND REQUESTS
13.1 All written notices required or otherwise provided under the AGREEMENT
shall be sent by certified or registered mail (return receipt
requested), postage prepaid, or by cable, telegram, facsimile, telex or
hand delivery to the other party at the address listed below for the
other party and addressed as follows:
NORTEL: NORTHERN TELECOM INC.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Sr. Manager, Enterprise Licensing
Dept. 0521
FVC: FIRST VIRTUAL CORPORATION
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
or to such other address as the party to receive the notice so
designates by written notice to the other party.
13.2 Notices given pursuant to Section 13.1 shall be deemed to have been
received five (5) days after mailing if given by mail, and one (1)
business day after sending if given by cable, telegram, facsimile, telex
and upon delivery if given by hand.
ARTICLE XIV - GENERAL
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14.1 The failure of a party to enforce any provision of the AGREEMENT shall
not constitute a waiver of such provision or the right of such party to
enforce such and every other provision.
14.2 The AGREEMENT may be executed in one or more counterparts, each of which
shall constitute one and the same instrument.
14.3 The AGREEMENT shall inure to the benefit of and be binding upon the
respective successors and assigns, if any, of the parties hereto.
14.4 Neither party shall, in any advertising, sales promotion materials,
press releases or any other publicity matters use the name of the other
party, any subsidiary or affiliate of the other party or any variation
of the foregoing or language from which the connection of said names may
be implied without such other party's prior written approval.
14.5 Neither party shall assign the AGREEMENT or any rights or obligations
hereunder without the prior written consent of the other party, provided
that the assigning party remains liable for its obligations hereunder,
except in the case whereby FVC has been acquired by another party. Each
of the parties shall be entitled to use service contractors in the
performance of its obligations and exercise its rights hereunder.
14.6 No provision of the AGREEMENT shall be deemed waived, amended or
modified by either party, unless such waiver, amendment or modification
be in writing and signed by the party against whom enforcement of the
waiver, amendment or modification is sought. Any such amendment or
modification shall be binding with or without tender of any
consideration.
14.7 The headings used herein are for convenience only and shall not be
deemed to be part of the AGREEMENT or used to construe or interpret any
of the provisions hereof.
14.8 The AGREEMENT constitutes the entire agreement between the parties and
supersedes any and all prior or contemporaneous oral and written
communications, understandings or agreements relating to the PRODUCTS.
In the event any term of the AGREEMENT is or becomes or is declared to
be invalid or void by any court or tribunal of competent jurisdiction,
such term or terms shall be null and void and shall be deemed deleted
from the AGREEMENT, and all the remaining terms of the AGREEMENT shall
remain in full force and effect.
14.9 The AGREEMENT shall be construed and enforced in accordance with the
laws of the State of New York.
14.10 Except as expressly provided in this AGREEMENT neither party shall be
liable for its failure or delay in performance of its obligations under
this AGREEMENT due to strikes, wars, revolutions, fires, floods,
explosions, earthquakes, government regulations, or other causes beyond
its control.
14.11 IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL,
CONSEQUENTIAL OR INDIRECT DAMAGES OR LOST PROFITS OR COSTS OF SUBSTITUTE
GOODS, SERVICES OR TECHNOLOGY ARISING OUT OF THIS AGREEMENT OR ANY
PROVISION HEREOF, HOWEVER CAUSED AND ON ANY
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THEORY OF LIABILITY. THIS LIMITATION SHALL APPLY EVEN IF THE OTHER PARTY
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES
14.12 The parties acknowledge the importance of maintaining as confidential
the existence and terms of this AGREEMENT, and the business relationship
it reflects. Neither party shall disclose the existence or terms of this
AGREEMENT to any third party without the written consent of the other
party. All publicly distributed materials prepared by either party that
mention the other party, the products of the other party, or this
AGREEMENT, shall be approved by both parties in writing before
publication.
14.13 Each party to the AGREEMENT hereby represents to the other that it has
full power and authority to enter into and perform the AGREEMENT and
that the person signing the AGREEMENT on its behalf has been properly
authorized and empowered to do so. Each party further acknowledges that
it has read the AGREEMENT that it understands the terms and conditions
hereof, and that it agrees to be bound by the AGREEMENT.
IN WITNESS WHEREOF, the parties have caused this AGREEMENT to be executed by
their duly authorized representatives.
NORTHERN TELECOM INC.
FIRST VIRTUAL CORPORATION
By: /s/ ▇.▇. ▇▇▇▇▇▇▇ By: /s/ ▇.▇. ▇▇▇▇▇▇▇▇
Name: ▇.▇. ▇▇▇▇▇▇▇ Name: ▇.▇. ▇▇▇▇▇▇▇▇
(type/print) (type/print)
Title: VP MCS Title: COO/CFO
(type/print) (type/print)
Date Signed: 5/29/7 Date Signed: 5/23/97
APPROVED
NORTEL TECHNOLOGY LAW & LICENSING GROUP
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Counsel, Technology Law
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SCHEDULE A - AUTHORIZED TERRITORY
Algeria Georgia Netherlands Tadjikistan
Anguilla Germany Netherlands Taiwan
Antigua Greece Antilles Thailand
Argentina Grenada New Zealand Tobago
Armenia Guadeloupe Nicaragua Trinidad
Australia Guam North Yemen Turkmenistan
Austria Guatemala Norway Turks & Caicos Islands
Azerbaijan Guyana Turkey
Oman
Bahamas Honduras Ukraine
Bahrain Hong Kong Pakistan United Arab Emirates
Barbados Hungary Panama United Kingdom
Barbuda Papua New United States (U.S.)
Belgium Iceland Guinea U.S. Virgin Islands
Belize India Paraguay Uruguay
Belarus Indonesia Peoples' Republic Uzbekistan
Bolivia Iraq of China
Brazil Ireland Peru Venezuela
British Virgin Isles Israel Philippines Vietnam
Brunei Italy Poland Virgin Islands
Portugal
Canada Jamaica Puerto Rico
Chile Japan
Colombia Jordan Qatar
Costa Rica
Czech Republic Kazakhstan Russia
Kirghizia
Denmark Kuwait Saudi Arabia
Dominica Singapore
Dominican Latvia Slovakia
Republic Liechtenstein South Africa
Lithuania South Korea
Ecuador Luxembourg Spain
Egypt St. Kitts & Nevis
El Salvador Malasia St Lucia
Estonia Martinique St. ▇▇▇▇▇▇▇
Mexico Suriname
Finland Moldava Sweden
France Montserrat Switzerland
French Guiana Morocco Syria
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SCHEDULE B - PRODUCTS AND PRICING
All elements of FVC's standard product offerings are available to NORTEL as
PRODUCTS.
[ * ] PRICING
-------------
For all orders placed in 1997, NORTEL will receive a straight [ * ] discount
off of FVC's domestic list price. If Nortel purchases more than [ * ] of FVC
product in any one quarter, the discount will increase to [ * ] off of FVC's
domestic list price for the following quarter, or if Nortel purchases more than
[ * ] of FVC product in any one quarter, the discount will increase to [ * ]
for the following quarter.
The discount will apply to all FVC product, with the exception of [ * ]. All
[ * ] will be discounted at [ * ] off of FVC's domestic list price.
[ * ]
In either case, there is no [ * ] involved. The discount off list shall apply to
all PRODUCTS purchased by NORTEL, with the exception of [ * ] which will be
discounted at [ * ].
[ * ] PRICING
-------------
Distribution of PRODUCTS in regions outside of [ * ] shall be fulfilled through
FVC's [ * ] distribution channel, each entity of which is individually
identified as an [ * ]. In regions not supported by the [ * ] FVC shall provide
NORTEL with PRODUCTS as required.
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
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For orders between NORTEL and [ * ], such [ * ] will provide all sales and
support functions that would normally be provided by FVC in a [ * ] sale,
including but not limited to; providing localized PRODUCT that meets all local
language and regulatory compliance requirements, PRODUCT demonstrations,
installation support, warranty fulfillment, in-country inventory for PRODUCT
spares, and second-line maintenance support. FVC agrees that each [ * ] shall
agree in writing with NORTEL to be bound by the terms of this AGREEMENT and that
FVC shall be liable for any damages incurred by NORTEL as a result of a breach
of this AGREEMENT by any [ * ].
Nortel's international PRODUCT cost is dependent upon the availability of an
[ * ] in the region to fulfill the order.
No [ * ] in region: Where there is no [ * ], NORTEL will order the product
directly from FVC at the [ * ] pricing levels as stated in the previous section.
NORTEL will be responsible for all shipping and duty, as well as the services
that would normally be provided by an [ * ] with the exception of [ * ] which
shall be covered by FVC.
[ * ] in region: Where there is an [ * ] in the region, NORTEL will order FVC
products through the [ * ]. The pricing level will be the [ * ] discount price
plus a [ * ] international premium based on the [ * ] to the AUTHORIZED
DISTRIBUTOR. NORTEL will also be responsible for [ * ] costs to the region.
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
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SCHEDULE C - SUPPORT SERVICES
GENERAL
The availability of support for the 25 Mb/s ATM PRODUCTS from FVC shall continue
for at least the lesser of:
(i) Five years after a product is removed from the NORTEL price list.
(ii) Five years after a base product is removed from the FVC Corporations
price list.
TECHNICAL SUPPORT
NORTEL Customer Service Organization shall have direct access to technical
support from FVC Corporation. NORTEL shall define up to four people who shall
have this direct technical support access. The Director of NORTEL Technical
Operations will modify the personnel list as is reasonably required to maintain
currency.
DEFINITIONS
"Critical Problem(s)" shall mean any detected condition in the SOFTWARE
that renders the service or operation of HARDWARE, or a Specific NORTEL
Product unusable or inoperative and is due to non-conformance of the
SOFTWARE with the Specifications. Without limiting the generality of the
foregoing, Critical Problem shall include, loss of all transaction
processing capability, significant reduction in capacity or traffic
handling capability, any loss of safety or emergency capability, loss of
the ability to perform automatic system reconfiguration, inability to
restart a processor or the system, loss of billing capability,
corruption of billing or system databases that requires service
affecting collective actions, loss of access to maintenance or recovery
operations, or loss of the system's ability to provide any required
Critical Problem or Major Problem notification.
"Major Problem(s)" shall mean any detected condition in the SOFTWARE
that renders the routine service or operation of HARDWARE, or a Specific
NORTEL Product unusable or inoperative and is due to non-conformance of
the SOFTWARE with the Specifications. Without limiting the generality of
the foregoing, Major Problem shall include, any reduction in capacity or
traffic, any loss of functional visibility or diagnostic capability, any
loss of routine administrative activity, any significant degradation of
the system's ability to provide maintenance or recovery operations, any
significant degradation of the system's ability to provide any required
Critical Problem or Major Problem notification, any significant increase
in system related End User trouble reports, and any corruption of the
system billing databases that does not result in service affecting
corrective actions.
"Minor Problem(s)" shall mean any detected condition in the SOFTWARE
that is not a Critical or Major Problem, that affects the service or
operation of a Specific NORTEL Product and is due to non-conformance of
the SOFTWARE with the Specifications.
"Permanent Solution(s)" shall mean a resolution to a problem that, (i)
causes the SOFTWARE to substantially conform with the Specifications,
and (ii) restores the service and operation of HARDWARE, or a Specific
NORTEL Product without any loss of functionality.
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"Work Around(s)" shall mean a temporary resolution that restores the
service and operation of a Specific NORTEL Product without any loss of
functionality.
TECHNICAL SUPPORT SERVICES
Technical Support shall mean the services described in this Schedule.
NORTEL shall be responsible for providing the first line of support to its End
Users.
PRIORITY LEVELS FOR TECHNICAL SUPPORT
Problems shall be categorized by NORTEL according to the following priority
levels.
Critical Problems
FVC shall work continuously, and shall use all reasonable commercial
efforts, until a Work Around or a Permanent Solution is successfully
implemented. If a Permanent Solution is successfully implemented, but
such Permanent Solution cannot be deployed in HARDWARE, or a Specific
NORTEL Product operating in an End User's network without affecting
service or operation, FVC shall provide NORTEL with a Work Around. FVC
agrees to provide a Work Around or Permanent Solution (subject to the
restrictions described in the preceding sentence) within five (5)
calendar days of a Critical Problem being reported to FVC by NORTEL. If
a Work Around is successfully implemented, a Critical Problem shall be
reclassified to a Major Problem.
Major Problems
FVC shall work continuously, and shall use all reasonable commercial
efforts, until a Work Around or Permanent Solution is successfully
implemented. If a Permanent Solution is successfully implemented, but
such Permanent Solution cannot be deployed in a Specific NORTEL Product
operating in an End User's network without affecting service or
operation, FVC shall provide NORTEL with a Work Around. FVC agrees to
provide a Work Around or Permanent Solution (subject to the restrictions
described in the preceding sentence) within fourteen (14) calendar days
of a Major Problem being reported to FVC by NORTEL.
NORTEL.
Minor Problems
FVC shall use all reasonable commercial efforts to provide a Work Around
or Permanent Solution. If a Permanent Solution is successfully
implemented, but such Permanent Solution cannot be deployed in a
Specific NORTEL Product operating in an End User's network without
affecting service or operation, FVC shall provide NORTEL with a Work
Around. FVC agrees to provide a Work Around or a Permanent Solution
(subject to the restrictions described in the preceding sentence) within
thirty (30) calendar days of a Minor Problem being reported to FVC by
NORTEL.
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Failure to reproduce a problem on a FVC-specified reference machine will not
prejudice or impact the attention that FVC gives to a problem.
DELIVERY OF WORK AROUNDS, AND PERMANENT SOLUTIONS
Permanent Solutions
FVC agrees to deliver a Permanent Solution to NORTEL in FVC's next
regularly scheduled REVISION. A Permanent Solution shall include a
patch, if such patch can be deployed in a Specific NORTEL Product
operating in an End User's network without affecting service or
operation. Such a patch shall be provided within the times described in
Article 3. If such a patch cannot be provided, FVC shall provide a Work
Around within the times described in Article 3.
Work Arounds
A Work Around may consist of a patch or instructions on how to avoid the
problem. A Work Around shall be capable of being deployed, without
interruption of service or operation, in a Specific NORTEL Product
operating in an End User's network.
SERVICE-LEVEL OBJECTIVE
The Parties acknowledge the potentially idiosyncratic nature of any problem in
the SOFTWARE. While the response times set forth in Article 3 of this Schedule
constitute targeted goals of the Technical Support to be provided by FVC to
NORTEL, it is understood that FVC shall use all reasonable commercial efforts to
attempt to resolve any problems within the target times specified in Article 3
(for the relevant priority level) ninety-five percent (95%) of the time.
Sporadic failures to meet these targeted times shall not constitute a failure to
perform a material provision of this Schedule.
PROBLEM REPORTING
FVC shall provide Technical Support to ensure that (i) the SOFTWARE remain in
compliance with the Specifications, (ii) the Documentation remains substantially
complete and accurate.
FVC shall provide Technical Support to ensure the continued operation of the
SOFTWARE in accordance with the Specifications and of Critical Problems, Major
Problems 2nd Minor Problems.
For each request by NORTEL for Technical Support from FVC, NORTEL shall provide
FVC with a description ("Problem Report") of the problem encountered and, where
possible, will include a description of how to repeat the condition which
brought about the problem. NORTEL will provide such diagnostic information as is
available. A Problem Report shall include a priority level which shall be
determined by NORTEL.
FVC shall identify each outstanding issue relating to a Problem Report with a
unique "Case Number" for tracking purposes. Case Numbers shall be communicated
to the NORTEL Project Manager for that Specific NORTEL Product within
twenty-four (24) hours of the receipt of the Problem Report.
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COMMUNICATIONS
FVC shall provide unlimited telephone support to NORTEL on issues relating to
the SOFTWARE, between the hours of 8:30 a.m. and 5:30 p.m. Pacific Standard
Time, five (5) days a week. FVC's telephone support service shall be properly
staffed by qualified technical representatives with a detailed working knowledge
of PRODUCT. The Parties may augment these communications with the use of
facsimile transmission. In addition, FVC shall provide after hours and weekend
access to FVC technical experts via pagers for support emergencies that must be
addressed outside of the standard telephone support hours.
FVC shall provide on-line "Bulletin Board" support to NORTEL on issues relating
to the SOFTWARE. FVC's on-line Bulletin Board shall be staffed as provided in
Article 7.1 of this Schedule and shall consist of a private forum in the
commercial CompuServe offering (or any other similar and comparable service)
which shall be accessible 24 hours per day, 7 days per week, 365 days per year.
FVC shall make all reasonable efforts to have each problem logged into the
Bulletin Board, subject to the provisions of Article 7.1 in this Schedule,
responded to within eight (8) working hours by a qualified technical
representative possessing the ability to discuss the details of such problem.
FVC shall be responsible for establishing and operating the Bulletin Board
except that NORTEL shall be responsible for the local service and access charges
associated with Bulletin Board use.
The Parties shall use reasonable efforts to establish security measures for the
electronic exchange of Problem Reports and other information.
INFORMATION
FVC shall provide to NORTEL, on a monthly basis, a report listing the following
information:
(a) all known bugs, errors or deficiencies in the SOFTWARE, and the
classification of each;
(b) any resolutions or fixes;
(c) any available work arounds.
Upon request by NORTEL, FVC shall provide a "Status Report" on any problem
logged for NORTEL provided that NORTEL identifies the particular problem by the
Case Number assigned to it by FVC. For problems which have been resolved, the
Status Report shall include the Case Number, the closing resolution for the
problem, the expected date that a Permanent Solution will be released, and a
description of any known Work Around. For problems that have not yet been
resolved, the Status Report shall include the Case Number, a problem resolution
plan, and a description of any known Work Around. Each problem logged for NORTEL
shall remain open until closure notification is received from FVC and accepted
by NORTEL.
If, in any REVISION, FVC introduces new software interfaces, or, modifies or
removes existing software interfaces, relative to the immediately preceding
REVISION, FVC shall notify NORTEL at least ninety (90) days prior to the initial
release of the REVISION which incorporates such changes (the "Anticipated
Changes"). Such notification shall include a description of the Anticipated
Changes. FVC shall make
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reasonable efforts to provide documented porting tools which will facilitate the
conversion of existing SOFTWARE to the new or modified software interfaces.
VALIDATION AND PERFORMANCE SUITES
FVC shall provide, with every REVISION, validation suites of test cases which
can be used for the purpose of integration and regression testing. These
validation suites shall be the same as, or a superset of, those test cases which
are used by FVC for its own software integration and regression testing. FVC
shall maintain the validation suites as a part of the SOFTWARE.
FVC shall provide, with every REVISION, performance metrics and the associated
suites of test cases. These performance metrics and test suites shall be the
same as, or a superset of, those which are used by FVC for its own software
performance testing. FVC shall maintain the performance metrics and test suites
as a part of the SOFTWARE.
REVISIONS
FVC shall provide NORTEL with all REVISIONs for the SOFTWARE. FVC shall ship
such REVISIONS, automatically on the initial release date, to each NORTEL
Project Manager.
FVC shall provide, with every REVISION, a written description of the changes
included in that REVISION. This description shall also include a discussion of
the purpose or reason for releasing the REVISION.
Every REVISION shall be accompanied by written installation instructions.
FVC shall provide Technical Support for each REVISION for a minimum of three (3)
years after its initial release date.
ONSITE TECHNICAL SERVICE
In the event that NORTEL requests the on-site presence of a qualified FVC
technical support representative at a NORTEL or End User site to diagnose and
resolve a problem, FVC shall make reasonable efforts to have a qualified
technical representative available at such NORTEL or End User site within the
shortest time reasonably possible provided that NORTEL shall reimburse FVC for
reasonable travel and living expenses in accordance with NORTEL travel plan
guidelines. In the event that the problem is found to be no fault of FVC, NORTEL
shall further pay FVC at the rate established (by the Agreement to which this
Schedule is attached) for contractual/architectural support.
TEST EQUIPMENT REQUIREMENTS/AVAILABILITY
FVC shall make available to NORTEL for a reasonable and agreed price any test
equipment to include diagnostics, test fixtures, test devices so as to ensure
that NORTEL may adequately provide services to its end user customers. NORTEL
shall have the right v) purchase or reproduce and distribute diagnostic tools
for internal and Third Party Service use only.
TOOLS REQUIREMENTS/AVAILABILITY
FVC shall make available to NORTEL for a reasonable and agreed price any special
tools necessary to install and maintain FVC equipment should NORTEL agree to
install and maintain FVC equipment. Tools may include but are not limited to
special physical tools, software debug utilities, special diagnostics, etc.
NORTEL shall have the right to purchase or reproduce and distribute diagnostic
tools for internal and Third Party Service use only.
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DOCUMENTATION
DOCUMENTATION may be but is not limited to: User documentation, Application
documentation, performance tests, test procedures, white papers, notes,
technical bulletins, functional specifications, design specifications,
schematics, parts lists, field service documentation etc.
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SCHEDULE D - TRAINING
TRAINING DOCUMENTATION
FVC will provide three sets of its standard training material including where
appropriate, handouts, overheads, outlines, syllabus, labs, manuals etc.
Additional material should be available for an agreed price. If the training
course is updated three copies of updated training materials will be provided to
NORTEL 60 days prior to product release.
COURSE AVAILABILITY
FVC will provide training courses for the Technical Response Centers and
internal training developers within 30 days prior to product availability at
NORTEL's facility of choice. FVC will make training courses available for U.S.
Field Operations & Third Party Service Providers prior to product availability
at NORTEL's facility of choice. Details regarding type of class, content,
audience, location and size will be negotiated Training for future options,
functional enhancements and upgrades must be offered by FVC and participation is
solely at NORTEL option.
PRICING
Pricing for the courses provided by FVC at NORTEL will be as follows:
[ * ] per instructor (including travel time) plus [ * ] in accordance with
NORTEL standard allowance for such costs.
NORTEL to provide [ * ].
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
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