*** Text Omitted and Filed Separately
Confidential Treatment Requested
Under 17 C.F.R. Sections 200.80(b)(4),
200.83 and 240.24b-2
AGREEMENT
BETWEEN
JATO COMMUNICATIONS CORPORATION
AND
LUCENT TECHNOLOGIES INC.
The mailing, delivery or negotiation of this Agreement by Lucent, Jato or its
their respective agents or attorneys shall not be deemed an offer by Lucent
or Jato to enter into any transaction or to enter into any other
relationship, whether on the terms contained herein or on any other terms.
This Agreement shall not be binding upon Lucent or Jato, nor shall Lucent or
Jato have any obligations or liabilities or any rights with respect thereto,
or with respect to the transactions contemplated by the Agreement, unless and
until the Agreement has been approved by the executive officers and/or Board
of Directors of Lucent and Jato and Lucent and Jato have executed and
delivered this Agreement. Until such execution and delivery of this
Agreement, Lucent or Jato may terminate all negotiation and discussion of the
subject matter hereof, without cause and for any reason, without recourse or
liability.
TABLE OF CONTENTS
GENERAL AGREEMENT
1. ARTICLE I GENERAL TERMS AND CONDITIONS...............................1
1.1 DEFINITIONS:.........................................................1
1.2 TERM OF AGREEMENT:...................................................3
1.3 SCOPE:...............................................................3
1.4 CUSTOMER RESPONSIBILITY:.............................................4
1.5 ORDERS:..............................................................4
1.6 CHANGES IN CUSTOMER'S ORDERS:........................................5
1.7 CHANGES IN PRODUCTS:.................................................5
1.8 PRICES:..............................................................5
1.9 INVOICES AND TERMS OF PAYMENT:.......................................6
1.10 PURCHASE MONEY SECURITY INTEREST:....................................7
1.11 TAXES:...............................................................8
1.12 TRANSPORTATION AND PACKING:..........................................8
1.13 TITLE AND RISK OF LOSS:..............................................8
1.14 WARRANTY:............................................................8
1.15 INFRINGEMENT:.......................................................10
1.16 CUSTOMER'S REMEDIES:................................................11
1.17 USE OF INFORMATION:.................................................11
1.18 DOCUMENTATION:......................................................12
1.19 NOTICES:............................................................12
1.20 FORCE MAJEURE:......................................................12
1.21 ASSIGNMENT:.........................................................13
1.22 TERMINATION OF AGREEMENT FOR BREACH:................................13
1.23 ARBITRATION:........................................................13
1.24 NON-SOLICITATION:...................................................14
1.25 INDEPENDENT CONTRACTOR:.............................................14
1.26 RELEASES VOID:......................................................14
1.27 PUBLICITY:..........................................................14
1.28 CONFIDENTIALITY OF AGREEMENT:.......................................14
1.29 AMENDMENTS:.........................................................14
1.30 SEVERABILITY:.......................................................14
1.31 WAIVER:.............................................................15
1.32 SURVIVAL:...........................................................15
1.33 SECTION HEADINGS:...................................................15
1.34 CHOICE OF LAW:......................................................15
2. ARTICLE II PROVISIONS APPLICABLE TO LICENSED MATERIALS..............16
2.1 LICENSE FOR LICENSED MATERIALS:.....................................16
2.2 CHANGES IN LICENSED MATERIALS:......................................16
2.3 CANCELLATION OF LICENSE:............................................16
3. ARTICLE III ENTIRE AGREEMENT:.......................................17
3.1 ENTIRE AGREEMENT....................................................17
This Data Networking Sales Agreement Number LNM99PK000005L (hereinafter
"General Agreement" or "Agreement'" is made effective as of the date of last
signature ("Effective Date") by and between Jato Communications Corporation,
a Delaware corporation, with offices located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter "Customer"), and Lucent Technologies
Inc., a Delaware corporation, acting through its Data Networking Systems
Group with offices located at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ (hereinafter "Seller").
WHEREAS, Seller desires to supply to Customer and Customer desires to procure
from Seller the products and services described herein, pursuant to the terms
and conditions contained herein.
NOW, THEREFORE, in consideration of the mutual promises herein contained and
other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties intending to be lawfully bound agree as
follows:
1. ARTICLE I
GENERAL TERMS AND CONDITIONS
1.1 DEFINITIONS:
For the purpose of this Agreement, the following definitions will apply.
(a) "Affiliate" of a corporation means its Subsidiaries, any company of
which it is a Subsidiary, and other Subsidiaries of such company.
(b) "Customer Price List" means Seller's published "Ordering and Price
Guides" or other price notification releases furnished by Seller for
the purpose of communicating Seller's prices or pricing related
information to Customer; however, this does not include Firm Price
Quotes.
(c) "Cutover" means the verification by Seller and Customer of actual usage
over the installed Products. This function occurs after Turnover and is
not performed by Seller unless specifically requested by Customer and
is usually covered under a separate Professional Services Agreement.
(d) "Definition of Services" means the template jointly developed by
Customer and Seller of Services to be provided or performed by Seller
for Customer. Customer and Seller shall agree to the Services to be
performed or provided. Customer shall, then, issue a Statement of Work
("SOW") from which Seller will confirm prices for work to be performed
or provided.
(e) "Delivery Date" means the date required under this Agreement by which
all deliverables ordered by Customer are to be delivered to the
destination specified in the Purchase Order.
(f) "Designated Processor" means the Product for which licenses to Use
Licensed Materials are granted.
(g) "Firmware" means a combination of (1) hardware and (2) Software
represented by a pattern of bits contained in such Hardware.
(h) "Fit" means physical size or mounting arrangement (e.g., electrical or
mechanical connections).
(i) "Form" means physical shape.
Lucent Technologies Proprietary
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(j) "Function" means the technical operation or process the Product
performs.
(k) "Hazardous Materials" means material designated as a "hazardous
chemical substance or mixture" pursuant to Section 6 of the Toxic
Substance Control Act; a "hazardous material" as defined in the
Hazardous Materials Transportation Act (49 U.S.C.1801,et seq.)
"hazardous substance" as defined in the Occupational Safety and Health
Act Hazard Communication Standard (29 CFR 1910.1200) or as defined in
the Comprehensive Governmental Response, Compensation and Liability
Act, 42 U.S.C. 9601 (14), or other pollutant or contaminant.
(l) "Installation Complete Date" means the date on which OS Software,
transmission systems Software, and/or hardware is installed by Seller
at the location specified in the order and determined by Seller to be
ready for Use by Customer.
(m) "Licensed Materials" means the Software and Related Documentation for
which licenses are granted by Seller under this Agreement; no Source
Code versions of Software are included in Licensed Materials.
(n) "OS Software" means the object code Software, for operations systems,
embodied in any medium, including firmware.
(o) "Pricing/Discount Schedule" means a published schedule or spreadsheet
of prices mutually agreed upon by the parties in writing for specific
Lucent or OEM Products, Licensed Materials and Services provided by
Seller. Such pricing schedule shall include negotiated discounts
applicable to the Agreement.
(p) "Product" means equipment hardware, and parts thereof, but the term
does not mean Software whether or not such Software is part of
Firmware.
(q) "Purchase Order" means an order provided by Customer to Seller
detailing the specific Products, Licensed Materials and Services to be
ordered. Customer will reference the corresponding Statement of Work
including the work site location, ship to and ▇▇▇▇ to address,
requested completion dates, quantity of Products and Licensed
Materials, as described in more detail in Section 1.5.
(r) "Related Documentation" means materials useful in connection with
Software such as, but not limited to, flowcharts, logic diagrams and
listings, program descriptions and Specifications.
(s) "Services" means any engineering, installation or repair services to be
performed by Seller under this Agreement, but the term "Services" does
not include any services provided by the Professional Services Division
of Seller's Network Systems Group unless otherwise expressly agreed to
in writing by the parties.
(t) "Software" means a computer program consisting of a set of logical
instructions and tables of information that guide the functioning of a
processor. Such program may be contained in any medium whatsoever,
including hardware containing a pattern of bits, representing such
program. However, the term "Software" does not mean or include such
medium.
(u) "Source Code" means any version of Software incorporating high-level or
assembly language that generally is not directly executable by a
processor.
(v) "Specifications" means Seller's or its vendor's technical
specifications for particular Products or Software furnished hereunder.
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(w) "Statement of Work" ("SOW") means the detailed description of the
actual Services such as installation, staging, maintenance and
monitoring, to be performed for Customer by Seller which includes the
expected completion dates of such Services. Seller will confirm prices
with Customer based upon the work detailed therein and Customer will
issued a Purchase Order to Seller for applicable Products, Licensed
Materials and Services to complete the Statement of Work (SOW).
(x) "Subsidiary" means any corporation in which Customer owns more than
fifty percent (50%) of the eligible voting stock; such corporation
shall be deemed to be a Subsidiary of such Customer only as long as
such ownership or control exists.
(y) "Turnover" means, with respect to Products and Software to be installed
by Seller, the point at which Seller has completed the installation and
notifies Customer that the installation is completed and that Seller
has confirmed that the installed Product and/or Software comply with
Seller's Specifications.
This term does not mean Cutover, which is separately defined herein.
(z) "Use," with respect to Licensed Materials means loading the Licensed
Materials, or any portion thereof, into a Designated Processor for
execution of the instructions and tables contained in such Licensed
Materials.
1.2 TERM OF AGREEMENT:
The term of this Agreement shall commence on the Effective Date and shall
continue in effect thereafter for a period of three (3) years ("Term").
1.3 SCOPE:
(a) The terms and conditions of this Agreement shall apply to all
transactions occurring during the Term whereby Data Networking Systems
Products, Licensed Materials or Services are provided by Seller to
Customer. Except as expressly stated in this Agreement, this Agreement
shall not apply to any products, licensed materials or services offered
for supply by any other group (e.g. Microelectronics, Business
Communications Systems) within Lucent. By placing orders with Seller,
including change and/or addition orders, or using any Products,
Licensed Materials, or Services provided hereunder, Customer agrees to
be bound to the terms of this Agreement. Customer understands and
agrees that all Products, Licensed Materials, or Services furnished by
Seller to Customer pursuant to this Agreement shall be for Customer's
own internal use in the United States only.
(b) This Agreement shall apply to all transactions occurring during the
Term whereby Seller agrees to provide to Customer certain products
manufactured by and purchased from Copper Mountain, Inc. and other OEM
equipment purchased through Seller. The terms and conditions related to
the Other Equipment Manufacturer (OEM) agreement between Seller and
Copper Mountain, Inc. are detailed in a separate purchase agreement.
(c) The terms and conditions of this Agreement apply to Services performed
by Seller for Customer under this agreement including the Definition of
Services and other work plans and processes, such as Statement of Work
(SOW) and Purchase Order, agreed to by both Seller and Customer.
(d) Seller and Customer have agreed to fund a co-marketing arrangement as
outlined in a separate co-marketing agreement.
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(e) All Firm Price Quotes made by Seller to Customer shall incorporate the
terms and conditions of this Agreement. Any conflicting terms and
conditions of a Firm Price Quote, signed by an authorized
representative of Seller and Customer and dated after the effective
date of this Agreement, will supersede the comparable pricing terms of
this Agreement. Only an officer of Customer shall be an authorized
representative of Customer.
1.4 CUSTOMER RESPONSIBILITY:
Customer shall, at no charge to Seller, provide Seller with such technical
information, data, technical support or assistance as may reasonably be
required by Seller to fulfill its obligations under this Agreement, any
subordinate agreement or order. If Customer falls to provide the technical
information, data, support or assistance, within a reasonable timeframe,
Seller shall be discharged from any such obligation. Notice of all such
requests for information must be provided to Customer in writing 30 days or
as soon as is reasonably possible prior to when Seller requires the
designated information. All technical information and data provided by
Customer shall be subject to the confidentiality obligations set forth in
Section 1.17 below.
1.5 ORDERS:
(a) All Purchase Orders submitted by Customer for Products, Licensed
Materials, and Services shall incorporate and be subject to the terms
and conditions of this Agreement. Any Purchase Order submitted pursuant
to a Firm Price Quote shall include such Firm Price Quote number. All
Purchase Orders, including electronic orders, shall contain the
information as detailed below:
(i) Complete and correct ship to and ▇▇▇▇ to address;
(ii) The quantity and type of Products, Licensed Materials, and
Services being ordered;
(iii) The price;
(iv) The requested Delivery Date in accordance with Seller's
standard delivery intervals for the applicable Products,
Licensed Materials, and Services being ordered. In the event a
non standard delivery interval has been mutually agreed to by
the parties, reference to the specific document agreeing to
the interval needs to be included;
(v) The requested completion date in accordance with Seller's
standard completion date intervals for the applicable
Products, Licensed Materials, and Services being ordered;
(vi) Reference to this Agreement;
The requested Delivery Date of any Purchase Order must be in accordance
with Sellers published standard order intervals in effect on the date
of receipt of order by Seller. Seller reserves the right to change such
standard order intervals without notification to Customer but only with
respect to future orders. Changes in intervals will be provided to
Customer at time Purchase Order is placed to Seller by Customer. Seller
agrees that it will comply with the standard order intervals in effect.
No change in the standard order intervals shall affect Purchase Orders
submitted prior to the change to the standard order intervals. Purchase
Orders submitted electronically shall be binding on Customer
notwithstanding the absence of a signature. All Purchase Orders are
subject to acceptance by Seller. All Purchase Orders not rejected
within five (5) business days of receipt will be deemed to be accepted.
Seller reserves the right to place any order on hold, delay shipment,
and/or reject any order due to, but not limited to the breach or
default by Customer of its obligations under this Agreement or
Customer's insufficient credit limits
Lucent Technologies Proprietary
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including Customer's inability to sustain adequate financing.
Customer shall be notified in writing of any such action within
five (5) business days of the receipt of any Purchase Order.
However, upon the occurrence of a force ▇▇▇▇▇▇ event, Seller will
notify Customer as soon as reasonably possible. Terms and conditions
on Customer's purchase order which are inconsistent with the
provisions of this Agreement and any pre-printed terms and conditions
on Customer's purchase order shall be ineffective, void and of no
force and effect. Orders shall be sent to the following address:
Lucent Technologies Inc.
Customer Service
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇ - ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
1.6 CHANGES IN CUSTOMER'S ORDERS:
Changes by Customer to a Purchase Order which has been previously accepted by
Seller (a "Change Order") are subject to acceptance by Seller. Change Orders
shall be treated as an amendment or modification to the original Purchase
Order, upon agreement between Seller and Customer, and shall follow Seller's
change order process. In the event Seller accepts a Change Order and such
change affects Seller's ability to meet its obligations under the original
order, any price (or discount, if applicable), Delivery Date or Services
completion date quoted by Seller with respect to such original Purchase Order
is subject to change only for those items changed or impacted by the
requested change on the original Purchase Order. Seller will provide to
Customer written quotations and expected completion dates for any requested
Change Orders within five (5) calendar days from receipt of the Change Order.
1.7 CHANGES IN PRODUCTS:
Prior to accepting any Purchase Orders, Seller may at any time make changes
in the Products. Furthermore, with respect to Purchase Orders calling for
shipment more than thirty (30) days outside of Seller's normal shipping
interval for the Products, unless Customer has agreed that the Purchase Order
is non-cancelable. Seller may modify the Product(s) drawings and
Specifications or may substitute Products of later design, provided that
Seller gives Customer prompt written notice of such modifications or
substitutions and Customer has not within five (5) business days after
receipt of such notice notified Seller of its intent to make the Purchase
Order non-cancelable. Seller agrees that such modifications or substitutions
of Products will not impact upon Form, Fit, or Function under normal and
proper use of the ordered Product as provided in Seller's Specifications.
With respect to all changes, modifications, and substitutions of Licensed
Materials, and changes, modifications and substitutions of Products that do
impact the Form, Fit, or Function of the ordered Product, Seller shall notify
Customer in writing at least thirty (30) days prior to the date the changes
become effective. For products provided through an OEM arrangement and
Customer's purchase of such product through Seller is based upon that
arrangement, Seller will notify Customer and discuss with Customer proposed
changes that affect such purchases prior to making material changes in the
product or the relationship with such OEM. In the event the Customer objects
to any change, modification or substitution of Products and Licensed
Materials, Customer shall notify Seller within thirty (30) days from the date
of its notice from Seller. Upon receipt of notice, Seller shall not furnish
changed, modified or substituted Products or Licensed Materials to Customer
on any orders in process.
1.8 PRICES:
(i) To the extent Customer's order is subject to a Firm Price Quote made by
Seller, prices, fees and charges (hereinafter "Prices") shall be as set
forth in Seller's Firm Price Quote. In no event shall
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Prices, whether subject to a Firm Price Quote or otherwise, exceed the prices
agreed upon in the Customer's Pricing/Discount Schedule.
(ii) Except as expressly stated in this Agreement, in all other cases Prices
shall be those contained in Customer's price discount schedule. Prices
for Products and license fees for Licensed Materials to be shipped, or
Services to be performed beyond the published shipping interval will be
based upon the date required for order entry by Seller in accordance
with Customer's requested date and applying the Price from the
Customer's price discount schedule in effect as of that date.
(iii) Seller may amend its Prices, other than those subject to Firm Price
Quotes and those on the Customer's Pricing/Discount Schedule. Seller
agrees to provide thirty (30) days written notice of any increase in
Prices.
(iv) Seller reserves the right to remove any product from the price discount
schedule upon at least ninety (90) prior written notice to Customer.
(V) SELLER ACKNOWLEDGES THE STRATEGIC RELATIONSHIP BETWEEN CUSTOMER AND
SELLER AND CUSTOMER'S EXPECTATION OF [ * ]. IN FURTHERANCE THEREOF,
SELLER AGREES TO DO THE FOLLOWING:
(a) SELLER SHALL NOTIFY CUSTOMER IN WRITING OF ANY [ * ] FOR THE
PRODUCTS COVERED BY THIS AGREEMENT AND SHALL OFFER SUCH
PRODUCTS TO CUSTOMER AT [ * ]. THE NEW PRICES SHALL BE
EFFECTIVE WITH RESPECT TO PRODUCTS DELIVERED AFTER THE
EFFECTIVE DATE OF THE NEW PRICE LIST.
(b) UPON NOTICE BY CUSTOMER THAT THE PRICES TO CUSTOMER HAVE
BECOME [ * ], SELLER AGREES TO NEGOTIATE IN GOOD
FAITH WITH CUSTOMER WITH A VIEW TOWARD [ * ] TAKING INTO
CONSIDERATION THE OTHER TERMS OF THIS AGREEMENT AND THE
RELATIONSHIP OF THE PARTIES.
(c) UPON NOTICE BY CUSTOMER THAT IT BELIEVES THAT THE [ * ] AND
OTHER TERMS, CONDITIONS AND CIRCUMSTANCES WHICH WOULD HAVE A
BEARING ON [ * ] WARRANTIES, ALLOCATION OF RISKS, SPECIAL
SERVICES, ETC.) AGREED TO BY SELLER AND ANOTHER CUSTOMER FOR
THE SAME OR SIMILAR PRODUCTS ARE [ * ] THAN APPLICABLE TO
CUSTOMER, SELLER AGREES TO REVIEW THE ENTIRE ARRANGEMENT WITH
THE OTHER CUSTOMER IN GOOD FAITH. IF, IN SELLER'S GOOD FAITH
JUDGMENT SELLER DETERMINES THAT THE ENTIRE ARRANGEMENT WITH
THE OTHER CUSTOMER ARE [ * ] THEN SELLER SHALL OFFER
A COMPARABLE ARRANGEMENT TO CUSTOMER. CUSTOMER UNDERSTANDS
THAT THE TERMS AND CONDITIONS OF SELLER'S AGREEMENTS WITH ITS
CUSTOMERS ARE TREATED IN CONFIDENCE BY SELLER AND SELLER SHALL
NOT BE OBLIGATED TO DISCLOSE THE TERMS AND CONDITIONS OF ANY
AGREEMENT THAT SELLER HAS WITH ANY OF ITS CUSTOMERS EITHER IN
THE EXECUTION OF THIS CLAUSE NOR IN ANY LEGAL OR OTHER
PROCEEDING BROUGHT TO ENFORCE THIS CLAUSE AND SELLER'S FAILURE
TO DISCLOSE SUCH SHALL NOT HAVE ANY EVIDENTIARY BEARING IN ANY
SUCH HEARING. SELLER'S GOOD FAITH DETERMINATION WITH RESPECT
TO FAVORABILITY AND COMPARABILITY SHALL BE CONCLUSIVE.
1.9 INVOICES AND TERMS OF PAYMENT:
(a) Payment for Products, Licensed Materials and Services (including
transportation charges and taxes, if applicable) will be due net 30
from the date of Seller's invoice. For orders which Seller is
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* INDICATES CONFIDENTIAL TREATMENT REQUESTED
6
responsible for installation, the payment will be invoiced upon
Turnover or as soon thereafter as practical. For furnish only orders
the payment will be invoiced upon shipment or as soon as practical
thereafter. In either case the final payment is due for receipt by
Seller net 30.
(b) For Products, Licensed Materials and Services (including transportation
charges and taxes, if applicable) that are not required to be paid in
advance, Seller will invoice Customer, all amounts due for Products and
Licensed Materials upon shipment and all amounts due for Services, upon
completion of Services or, in either event, as soon as practical
thereafter. Customer shall pay such invoiced amounts for receipt by
Lucent net 30 from the invoice date.
(c) Customer shall pay all amounts due Seller hereunder using check of
immediately available funds or Electronic Funds Transfer ("EFT")
whether amounts have been invoiced by Seller. EFT payments by Customer
shall be made to the following account of Seller or such other account
as is subsequently designated by Seller in writing and, concurrent with
the EFT payment, Customer shall fax a copy of the remittal to Seller's
Manager Cash Operations at ▇▇▇-▇▇▇-▇▇▇▇.
Chase Manhattan Bank
New York, New York
Account Name: Lucent Technologies Inc.
ACCT. 910144-9099
ABA ▇▇▇▇▇▇▇▇▇
(d) If Customer fails to pay any invoiced amount when due, the invoiced
amount shall be subject to a late payment charge at the rate of one and
one half percent (1-1/2%) per month, or portion thereof, of the amount
due (but not to exceed the maximum lawful rate). Customer agrees to pay
Seller's reasonable attorneys' fees and other costs incurred by Seller
in the collection of any amounts invoiced hereunder.
(e) Customer agrees to review all invoices furnished by Seller hereunder
upon receipt and, to use commercially reasonable efforts to notify
Seller of any billing discrepancies within ten (10) days of receipt of
the applicable invoice. Such inquiries can be directed to Seller in
writing or by telephone. Inquiries shall be made to the telephone
number or, if in writing, to the address identified on the invoice.
1.10 PURCHASE MONEY SECURITY INTEREST:
CUSTOMER AND SELLER ARE IN THE PROCESS OF NEGOTIATING FINANCING ARRANGEMENTS
WHEREBY SELLER WILL BE PROVIDING FINANCING FOR PURCHASES MADE BY CUSTOMER
HEREUNDER. THE PARTIES AGREE THAT THE TERMS OF THE FINANCING ARRANGEMENTS, IF
CONCLUDED, SHALL SUPERSEDE THIS SECTION. UNTIL SUCH ARRANGEMENTS ARE CONCLUDED,
OR IN THE EVENT THAT CUSTOMER ELECTS TO MAKE PURCHASES HEREUNDER OUTSIDE OF SUCH
FINANCING ARRANGEMENTS, THIS SECTION SHALL APPLY.
(a) Seller reserves and Customer agrees that Seller shall have a purchase
money security interest in Products and Licensed Materials supplied to
Customer by Seller under this Agreement until any and all payments and
charges due Seller under this Agreement related to such Products or
Licensed Materials, including, without limitation, shipping and
installation charges, are paid in full. Seller shall have the right at
any time during the Term upon, written notice to Customer, to file in
any state or local jurisdiction such financing statements (e.g., UCC-1
financing statements) as Seller deems necessary to perfect its purchase
money security interest hereunder. Upon request by Seller, Customer
hereby agrees to execute all documents necessary to secure and perfect
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Seller's purchase money security interest hereunder, including without
limitation UCC-1, Power of Attorney, if required, to appoint Seller as
Customer's attorney-in-fact for purposes of executing and filing such
financing statements, or such other documents Seller deems reasonably
necessary. Customer also agrees that this Agreement may be filed by
Seller in any state or local jurisdiction as a financing statement (or
as other evidence of the Seller's purchase money security interest).
(b) In addition to any other remedy available to Seller as provided herein,
by common law and by statute, Seller may exercise its right to reclaim
all Products and Licensed Materials sold to Customer pursuant to
UCC-2-702 or such other applicable provision as it may exist from state
to state, upon discovery of Customer's insolvency, provided Seller
demands in writing reclamation of such goods before ten (10) days after
receipt of such goods by Customer, or if such ten (10) day period
expires after the commencement of a bankruptcy case, before twenty (20)
days after receipt of such goods by the Customer.
1.11 TAXES:
Customer shall be liable for all taxes and related charges, however
designated, imposed upon or based upon its provision, sale, license or Use of
Products, Licensed Materials or Services levied upon the sale, excluding
taxes on Seller's net income, unless Customer provides Seller with a valid
tax exempt certificate. Seller's failure to collect taxes in accordance
herewith shall not be deemed to be an authorization to resell Products or
Services or sublicense Licensed Materials. Seller is responsible for all
collection and remittance of applicable taxes at the time of Customer payment.
1.12 TRANSPORTATION AND PACKING:
Seller, in accordance with its normal practices, shall arrange for prepaid
transportation to destinations in the contiguous United States and shall
invoice actual transportation charges to Customer. All transportation charges
invoiced to Customer shall be at the actual costs charged by the
transportation carrier and no price or cost ▇▇▇▇ up will be added by Seller.
Premium transportation will be used only at Customer's request. Seller shall
pack Products for delivery in the contiguous United States, in accordance
with its standard practices for domestic shipments. Where, in order to meet
Customer's requests, Seller packs Products in other than its normal manner or
for destinations outside the contiguous United States, Customer shall pay the
additional charges for such packing and transportation.
1.13 TITLE AND RISK OF LOSS:
Title to Products only and risk of loss to Products and Licensed Materials
shall pass to Customer upon delivery to the Customer. Title to all Licensed
Materials (whether or not part of Firmware) furnished by Seller, and all
copies thereof made by Customer, including translations, compilations and
partial copies are, and shall remain, the property of Seller. Customer shall
notify Seller promptly of any claim with respect to loss which occurs while
Seller has the risk of loss and shall cooperate in every reasonable way to
facilitate the settlement of any claim. For purposes of this section,
"delivery" shall mean the point at which Seller or Seller's supplier or agent
turns over possession of the Product or Licensed Materials to Customer,
Customer's employee, Customer's designated carrier, Customer's warehouse, or
other Customer's agent and not necessarily the final destination shown on the
order.
1.14 WARRANTY:
(a) Seller warrants to Customer only, that during the applicable warranty
period, which shall in no event be less than ninety (90) days from the
date of delivery, (i)Seller's manufactured Products (exclusive of
Software) will be free from defects in material and workmanship and
will conform to
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Seller's Specifications for such Products; (ii)Licensed Materials
developed by Seller will be free from those defects which materially
affect function or performance in accordance with Seller's
Specifications; and (iii) Services will be performed in a workmanlike
manner and in accordance with good usage and accepted practices in the
community in which Services are provided. With respect to Products or
Licensed Materials or partial assembly of Products furnished by Seller
but neither manufactured by Seller nor purchased by Seller pursuant to
its procurement Specifications ("Vendor Items"), Seller, to the extent
permitted, does hereby assign to Customer the warranties given to
Seller by its vendor(s) of such Vendor Items.
(b) If, under normal and proper use, a defect or non-conformity appears in
Seller's manufactured Products or Licensed Materials during the
applicable warranty period and Customer promptly notifies Seller in
writing of such defect or non-conformance and follows Seller's
instructions regarding return of defective or non-conforming Product or
Licensed Materials, Seller, at its option, will either repair, replace
or correct the same without charge at its manufacturing or repair
facility or provide a full refund or credit based on the original
purchase price or license fee. If engineering or installation Services
prove not to be performed as warranted within a three (3) month period
commencing on the date of completion of the Services, Seller, at its
option, either will correct the defect or non-conforming Services or
render a full refund or credit based on the original charges for the
Services. No Product or Licensed Materials will be accepted for repair
or replacement without the written authorization of and in accordance
with instructions of Seller. Seller shall pay all costs and expenses
associated with (i) removal and reinstallation of the Product or
Licensed Materials, (ii) transportation expenses associated with
returning such Product or Licensed Materials to Seller, and (iii)
transportation of the repaired or replaced Product or Licensed
Materials to any United States destination designated by Customer
(collectively, the "Return Costs"). If Seller determines, in good
faith, that returned Product or Licensed Materials are not defective,
Customer shall pay Seller's costs of handling, inspecting, testing and
transportation and, if applicable, travel and related expenses and
shall reimburse Seller for all Return Costs previously paid by Seller.
In repairing or replacing any Product, part of Product, or Licensed
Materials medium under this warranty, Seller may use either new,
remanufactured, reconditioned, refurbished or functionally equivalent
Products or parts. Replaced Products or parts shall become Seller's
property.
(c) With respect to Seller's manufactured Products which Seller has
ascertained are not readily returnable for repair, Seller, at its
option, may elect to repair or replace the Products at Customer's site
and shall pay all costs and expenses associated therewith, including
but not limited to restoring the site after completion of the repairs
or replacement.
(d) Seller makes no warranty with respect to defective conditions or
non-conformities resulting from any of the following: Customer's
modifications, misuse, neglect, accident or abuse; Customer's improper
wiring, repairing, splicing, alteration, installation, storage or
maintenance; use by Customer in a manner not in accordance with
Seller's or its vendor's Specifications, or operating instructions or
failure of Customer to apply previously applicable Seller's
modifications or corrections. In addition, Seller makes no warranty
with respect to Products which have had their serial numbers or month
and year of manufacture removed, altered and with respect to expendable
items that could not be reasonably inspected and replaced by Customer,
including, without limitation, fuses, light bulbs, motor brushes and
the like. No warranty is made that Software will run uninterrupted or
error free, and in addition Seller makes no warranty with respect to
defects related to Customer's data base errors.
(e) THE FOREGOING WARRANTIES ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER
EXPRESS AND IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES
OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER'S
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9
SOLE AND EXCLUSIVE REMEDY SHALL BE SELLER'S OBLIGATION TO REPAIR,
REPLACE, CREDIT, OR REFUND AS SET FORTH ABOVE IN THIS WARRANTY.
1.15 INFRINGEMENT:
(a) In the event of any claim, action, proceeding or suit by a third party
against Customer alleging an infringement of any United States patent,
United States copyright, or United States trademark, or a violation in
the United States of any trade secret or proprietary rights by reason
of the use, in accordance with Sellers Specifications, of any Product
or Licensed Materials furnished by Seller to Customer under this
Agreement, Seller, at its expense, will defend Customer, subject to the
conditions and exceptions stated below. Seller will reimburse Customer
for any cost, expense or attorneys' fees, incurred at Seller's written
request or authorization, and will indemnify Customer against any
liability assessed against Customer by final judgment on account of
such infringement or violation arising out of such use.
(b) If Customer's use shall be enjoined or in Seller's opinion is likely to
be enjoined, Seller will, at its expense and at its option, either (1)
replace the enjoined Product or Licensed Materials furnished pursuant
to this Agreement with a suitable substitute free of any infringement;
(2) modify it so that it will be free of the infringement; or (3)
procure for Customer a license or other right to use it. If none of the
foregoing options are practical, Seller will remove the enjoined
Product or Licensed Materials and refund to Customer any amounts paid
to Seller therefor less a reasonable charge for any actual period of
use by Customer.
(c) Customer shall give Seller prompt written notice of all such claims,
actions, proceedings or suits alleging infringement or violation and
Seller shall have full and complete authority to assume the sole
defense thereof, including appeals, and to settle same. Customer shall,
upon Seller's request and at Seller's expense, furnish all information
and assistance available to Customer and cooperate in every reasonable
way to facilitate the defense and/or settlement of any such claim,
action, proceeding or suit.
(d) No undertaking of Seller under this section shall extend to any such
alleged infringement or violation to the extent that it: (1) arises
from adherence to design modifications, specifications, drawings, or
written instructions which Seller is directed by Customer to follow,
but only if such alleged infringement or violation does not reside in
corresponding commercial Product or Licensed Materials of Sellers
design or selection; or (2) arises from adherence to instructions to
apply Customer's trademark, trade name or other company identification;
or (3) resides in a product or licensed materials which are not of
Seller's origin and which are furnished by Customer to Seller for use
under this Agreement; or (4) relates to uses of Product or Licensed
Materials provided by Seller in combinations with other Product or
Licensed Materials, furnished either by Seller or others, which
combination was not installed, recommended or otherwise approved by
Seller, where the Product or Licensed Materials would not infringe if
not deployed in such combination. In the foregoing cases numbered (1)
through (4), Customer will defend and save Seller harmless, subject to
the same terms and conditions and exceptions stated above, with respect
to the Seller's rights and obligations under this section.
(e) The liability of Seller and Customer with respect to any and all
claims, actions, proceedings or suits by third parties alleging
infringement of patents, trademarks or copyrights or violation of trade
secrets or proprietary rights because of, or in connection with, any
Products or Licensed Materials furnished pursuant to this Agreement
shall be limited to the specific undertakings contained in this
section.
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Use Pursuant to Company Instructions
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1.16 CUSTOMER'S REMEDIES:
(a) CUSTOMER'S EXCLUSIVE REMEDIES AND THE ENTIRE LIABILITY OF SELLER, ITS
AFFILIATES AND THEIR EMPLOYEES, AND AGENTS, AND ITS SUPPLIERS FOR ANY
CLAIM, LOSS, DAMAGE OR EXPENSE OF CUSTOMER OR ANY OTHER ENTITY ARISING
OUT OF THIS AGREEMENT, OR THE USE OR PERFORMANCE OF ANY PRODUCT,
LICENSED MATERIALS, OR SERVICES, WHETHER IN AN ACTION FOR OR ARISING
OUT OF BREACH OF CONTRACT, TORT, INCLUDING NEGLIGENCE, INDEMNITY, OR
STRICT LIABILITY, SHALL BE AS FOLLOWS:
1) FOR INFRINGEMENT -- THE REMEDY SET FORTH IN THE "INFRINGEMENT"
SECTION;
2) FOR THE NON-PERFORMANCE OF PRODUCTS, SOFTWARE, AND SERVICES
DURING THE WARRANTY PERIOD -- THE REMEDY SET FORTH IN THE
APPLICABLE "WARRANTY" SECTION;
3) FOR TANGIBLE PROPERTY DAMAGE AND PERSONAL INJURY CAUSED BY
SELLER'S NEGLIGENCE -- THE AMOUNT OF THE PROVEN DIRECT
DAMAGES;
4) FOR EVERYTHING OTHER THAN AS SET FORTH ABOVE -- THE AMOUNT OF
THE PROVEN DIRECT DAMAGES NOT TO EXCEED $100,000.00 per
occurrence PLUS AWARDED COUNSEL FEES AND COSTS.
(b) NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, SELLER, ITS
AFFILIATES AND THEIR EMPLOYEES, AND AGENTS, AND ITS SUPPLIERS SHALL NOT
BE LIABLE FOR ANY INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES OR
LOST PROFITS, REVENUES OR SAVINGS ARISING OUT OF THIS AGREEMENT, OR THE
USE OR PERFORMANCE OF ANY PRODUCT, LICENSED MATERIALS, OR SERVICES,
WHETHER IN AN ACTION FOR OR ARISING OUT OF BREACH OF CONTRACT, TORT,
INCLUDING NEGLIGENCE, OR STRICT LIABILITY. THIS SECTION, 1.16(B), SHALL
SURVIVE FAILURE OF AN EXCLUSIVE OR LIMITED REMEDY.
(c) CUSTOMER SHALL GIVE SELLER PROMPT WRITTEN NOTICE OF ANY CLAIM. ANY
ACTION OR PROCEEDING AGAINST SELLER MUST BE BROUGHT WITHIN TWENTY-FOUR
(24) MONTHS AFTER THE CAUSE OF ACTION ACCRUES.
1.17 USE OF INFORMATION:
All technical and business information in whatever form recorded which bears
a legend or notice restricting its use, copying, or dissemination or, if not
in tangible form, is described as being proprietary or confidential at the
time of disclosure and is subsequently summarized in a writing so marked and
delivered to the receiving party within thirty (30) days of disclosure to the
receiving party (all hereinafter designated "Information") shall remain the
property of the furnishing party. The furnishing party grants the receiving
party the right to use such Information only for purposes expressly permitted
in this section. Such Information (1) shall not be reproduced or copied, in
whole or part, except for use as authorized in this Agreement; and (2) shall,
together with any full or partial copies thereof, be returned or destroyed
when no longer needed. Moreover, when Seller is the receiving party, Seller
shall use such Information only for the purpose of performing under this
Agreement, and when Customer is the receiving party, Customer shall use such
Information only (1) to order; (2) to evaluate the Products, Licensed
Materials or Services; or (3) to install, operate and maintain the particular
Products or Licensed Materials for which it was originally furnished. Unless
the furnishing party consents in writing, such Information, except for that
Lucent Technologies Proprietary
Use Pursuant to Company Instructions
11
part, if any, which is known to the receiving party free of any confidential
obligation, or which becomes generally known to the public through acts not
attributable to the receiving party, shall be held in confidence by the
receiving party. The receiving party may disclose such Information to other
persons, upon the furnishing party's prior written authorization, but solely
to perform acts which this section expressly authorizes the receiving party
to perform itself and further provided such other person agrees in writing (a
copy of which writing will be provided to the furnishing party at its
request) to the same conditions respecting use of Information contained in
this section and to any other reasonable conditions requested by the
furnishing party.
1.18 DOCUMENTATION:
Seller shall furnish to Customer, at no additional charge, one (1) copy of
the documentation for Products and/or one (1) copy of the Related
Documentation for Software licensed to Customer. Such documentation shall be
that which is customarily provided by Seller to its customers at no
additional charge. Such documentation shall be sufficient to enable Customer
to operate and maintain such Products and Software in accordance with
Seller's qualifications. Such documentation shall be provided either prior
to, included with, or shortly after shipment of Products and/or Software from
Seller to Customer. Additional copies of such documentation are available at
prices set forth in Seller's Customer Price Lists.
1.19 NOTICES:
(a) Any notice, demand or other communication (other than an order)
required, or which may be given, under this Agreement shall, unless
specifically otherwise provided in this Agreement, be in writing and
shall be given or made by nationally recognized overnight courier
service, confirmed facsimile, or certified mail, return receipt
requested and shall be addressed to the respective parties as follows:
If to Seller:
Lucent Technologies Inc.
Global Commercial Markets
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Contract Manager
If to Customer:
Jato Communications Corporation
1099 18' Street, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇
Any such notice shall be effective upon receipt. Each party may change its
designated representative who is to receive communications and notices and/or
the applicable address for such communications and notices by giving written
notice thereof to the other party provided herein.
1.20 FORCE MAJEURE:
Except for payment obligations, neither party shall be held responsible for
any delay or failure in performance to the extent that such delay or failure
is caused by fires, strikes, embargoes, explosions, earthquakes, floods,
wars, water, the elements, labor disputes, government requirements, civil or
military
Lucent Technologies Proprietary
Use Pursuant to Company Instructions
12
authorities, acts of God or by the public enemy, inability to secure raw
materials or transportation facilities, acts or omissions of carriers or
suppliers, or other causes beyond its reasonable control whether or not
similar to the foregoing.
1.21 ASSIGNMENT:
Except as provided in this section, neither party shall assign this Agreement
or any right or interest under this Agreement, nor delegate any work or
obligation to be performed under this Agreement, (an "assignment") without
the other party's prior written consent. Any attempted assignment in
contravention of this section shall be void and ineffective. Nothing shall
preclude a party from employing a subcontractor in carrying out its
obligations under this Agreement. A party's use of such subcontractor shall
not release the party from its obligations under this Agreement.
Notwithstanding the foregoing, Seller has the right to assign this Agreement
and to assign its rights and delegate its duties under this Agreement, in
whole or in part, at any time and Customer's consent, to any present or
future subsidiary or "Affiliate" of Seller or to any combination of the
foregoing. Such assignment or delegation shall release Seller from any
further obligation or liability thereon. Seller shall give Customer prompt
written notice of the assignment. For the purposes of this section, the term
"Agreement" includes this Agreement, any subordinate agreement placed under
this Agreement and any order placed under this Agreement or subordinate
agreement.
1.22 TERMINATION OF AGREEMENT FOR BREACH:
In the event either party is in material breach or default of the terms of
this Agreement and such breach or default continues for a period of ten (10)
days with respect to payment obligations or thirty (30) days with respect to
any other obligations after the receipt of written notice from the other
party, then the party not in breach or default shall have the right to
terminate this Agreement without any charge, obligation or liability except
for Products or Licensed Materials already delivered and Services already
performed. The party not in breach or default shall provide full cooperation
to the other party in every reasonable way to facilitate the remedy of the
breach or default hereunder within the applicable cure period.
Notwithstanding the foregoing, if the nature of the material breach or
default is such that it is not a payment obligation and it is incapable of
cure within the foregoing thirty (30) day period, then the thirty (30) day
cure period may be extended for a reasonable period of time (in no event to
exceed an additional thirty (30) days), provided that the party in breach or
default is proceeding diligently and in good faith to effectuate a cure.
1.23 ARBITRATION:
If a dispute arises out of or relates to this Agreement, or its breach, the
parties agree to escalate such dispute to their respective senior executives
for good faith negotiations seeking a mutually agreeable resolution. This
demand for escalation shall be in writing and notice shall be served in
accordance with the notice provision of this Agreement. If the dispute is not
resolved through such escalation within fifteen (15) days after the date of
escalation, either party shall have the right to submit the dispute to a sole
mediator selected by the parties or, at any time at the option of a party, to
mediation by the American Arbitration Association ("AAA"). If not thus
resolved, it shall be referred to a sole arbitrator selected by the parties
within thirty (30) days of the mediation or, in the absence of such
selection, to AAA arbitration which shall be governed by the United States
Arbitration Act, and judgment on the award may be entered in any court having
jurisdiction. The arbitrator may determine issues of arbitrability, but may
not award punitive damages or limit, expand or otherwise modify the terms of
this Agreement. The parties, their representatives, other participants and
the mediator and arbitrator shall hold the existence, content and result of
mediation and arbitration in confidence, except as such disclosure may be
necessary for the purpose of recording or otherwise acting upon the
arbitrator's award.
Lucent Technologies Proprietary
Use Pursuant to Company Instructions
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1.24 NON-SOLICITATION:
During the term of this Agreement and for a period of one (1) year from the
termination of this Agreement or a Statement of Work, the parties agree not
to solicit any employee of the other party who is directly involved with the
delivery of Services under this Agreement, except upon the prior written
consent of the affected party.
1.25 INDEPENDENT CONTRACTOR:
All work performed by either party under this Agreement shall be performed as
an independent contractor and not as an agent of the other, and no persons
furnished by the performing party shall be considered the employees or agents
of the other.
1.26 RELEASES VOID:
Neither party shall require releases or waivers of any personal rights from
representatives or employees of the other in connection with visits to its
premises, nor shall such parties plead such releases or waivers in any action
or proceeding.
1.27 PUBLICITY:
Neither party shall issue or release for publication any articles,
advertising, or publicity material relating to Products, Licensed Materials,
or Services under this Agreement or mentioning or implying the name,
trademarks, logos, trade name, service ▇▇▇▇ or other company identification
of the other party or any of its Affiliates or any of its personnel without
the prior written consent of the other party. Notwithstanding the foregoing,
the parties will prepare and issue a joint press release in connection with
the execution of this Agreement.
1.28 CONFIDENTIALITY OF AGREEMENT:
Notwithstanding the obligations contained in Section 1.17 (Use of
Information) of this Agreement the parties shall keep all provisions of this
Agreement and any order submitted hereunder (including, without limitation,
prices and pricing related information) confidential except as reasonably
necessary for performance by the parties hereunder and except to the extent
disclosure may be required by applicable laws or regulations, in which latter
case, the party required to make such disclosure shall promptly inform the
other prior to such disclosure in sufficient time to enable such other party
to make known any objections it may have to such disclosure. The disclosing
party shall take all reasonable steps and exercise all reasonable efforts
directed by Seller to secure a protective order, seek confidential treatment,
or otherwise assure that this Agreement and/or any order will be withheld
from the public record.
1.29 AMENDMENTS:
Any supplement, modification or waiver of any provision of this Agreement
must be in writing and signed by authorized representatives of both parties.
1.30 SEVERABILITY:
If any portion of this Agreement is found to be invalid or unenforceable, the
parties agree that the remaining portions shall remain in effect. The parties
further agree that in the event such invalid or unenforceable portion is an
essential part of this Agreement, they will immediately begin negotiations
for a replacement.
Lucent Technologies Proprietary
Use Pursuant to Company Instructions
14
1.31 WAIVER:
If either party fails to enforce any right or remedy available under this
Agreement, that failure shall not be construed as a waiver of any right or
remedy with respect to any other breach or failure by the other party.
1.32 SURVIVAL:
The rights and obligations of the parties which by their nature would
continue beyond the termination cancellation, or expiration of this
Agreement, shall survive such termination, cancellation or expiration.
1.33 SECTION HEADINGS:
The section headings in this Agreement are inserted for convenience only and
are not intended to affect the meaning or interpretation of this Agreement.
1.34 CHOICE OF LAW:
The construction and interpretation of, and the rights and obligations of the
parties pursuant to this Agreement, shall be governed by the laws of the
State of New York without regard to its conflict of laws provision.
Lucent Technologies Proprietary
Use Pursuant to Company Instructions
15
2. ARTICLE II
PROVISIONS APPLICABLE TO LICENSED MATERIALS
2.1 LICENSE FOR LICENSED MATERIALS:
(a) Upon delivery of Licensed Materials pursuant to this Agreement, Seller
grants to Customer a personal, nontransferable, and nonexclusive
license to Use Licensed Materials in the United States for its own
business operations. No license is granted to Customer to Use the
Licensed Materials outside the United States or to sublicense such
Licensed Materials furnished by Seller without prior written approval
from Seller. Customer shall not reverse engineer, decompile or
disassemble Software furnished as object code to generate corresponding
Source Code. Unless otherwise agreed in writing by Seller, Customer
shall not modify Software furnished by Seller under this Agreement.
Notwithstanding the above, Customer is granted a further right to
sublicense its end-users to use the Software in connection with the
performance of Customer's services.
(b) Customer shall not copy Software embodied in Firmware. Customer shall
not make any copies of any other Licensed Materials except as necessary
in connection with the rights granted hereunder. Customer shall
reproduce and include any Seller copyright and proprietary notice on
all such necessary copies of the Licensed Materials. Customer shall
also ▇▇▇▇ all media containing such copies with a warning that the
Licensed Materials are subject to restrictions contained in an
agreement between Seller and Customer and that such Licensed Materials
are the property of Seller. Customer shall maintain records of the
number and location of all copies of the Licensed Materials. Customer
shall take appropriate action, by instruction, agreement, or otherwise,
with the persons permitted access to the Licensed Materials so as to
enable Customer to satisfy its obligations under this Agreement. If
Customer's license is canceled or terminated, Customer shall return all
copies of such Licensed Materials to Seller or follow written
disposition instructions provided by Seller.
2.2 CHANGES IN LICENSED MATERIALS:
Prior to shipment, Seller at its option may at any time modify the
Specifications relating to its Licensed Materials, provided the
modifications, under normal and proper Use, do not materially reduce or
adversely affect the Use, Function, or performance of the ordered Licensed
Materials. Unless otherwise agreed in writing, such substitution shall not
result in any additional charges to Customer with respect to licenses for
which Seller has quoted fees to Customer.
2.3 CANCELLATION OF LICENSE:
Notwithstanding any other section in this Agreement to the contrary, if
Customer fails to comply with any of the material terms and conditions of
this Agreement with respect to the Use of Licensed Materials, and such
failure is not corrected within thirty (30) days of receipt of written notice
thereof by Customer, Seller, upon written notice to Customer, may cancel any
affected license for Licensed Materials without further notification.
Lucent Technologies Proprietary
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16
3. ARTICLE III
ENTIRE AGREEMENT:
3.1 ENTIRE AGREEMENT.
The terms and conditions contained in this General Agreement supersede all
prior oral or written understandings between the parties with respect to the
subject matter hereof and constitute the entire agreement between the parties
with respect to such subject matter. The preprinted terms and conditions on
Customer's purchase orders or Seller's sales forms are deleted. The typed or
handwritten provisions of an order which are consistent with the terms of
this General Agreement along with the terms of this General Agreement shall
constitute the entire Agreement between the parties relating to said order.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives on the date(s) indicated.
JATO COMMUNICATIONS CORPORATION LUCENT TECHNOLOGIES INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇ By: /s/ S. ▇▇▇ ▇▇▇▇▇
--------------------------- ---------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇ Name: S. ▇▇▇ ▇▇▇▇▇
------------------------ ------------------------
Title: Customer Team Vice
Title: President President, West
----------------------- ------------------------
Date: 2-12-99 Date:
------------------------ ------------------------
Lucent Technologies Proprietary
Use Pursuant to Company Instructions
17
*** Text Omitted and Filed Separately
Confidential Treatment Requested
Under 17 C.F.R. Sections 200.80(b)(4),
200.83 and 240.24b-2
AMENDMENT ONE
TO
GENERAL AGREEMENT
BETWEEN
JATO COMMUNICATIONS CORPORATION
AND
LUCENT TECHNOLOGIES, INC
This Amendment Number One ("Amendment") is made this 20th day of August,
1999, by and between JATO Communications Corporation, with offices located at
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Customer") and Lucent
Technologies, Inc., a Delaware Corporation with offices located at ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ("Seller") (collectively known
as the "Parties").
WHEREAS, Customer and Seller have previously entered into a General Agreement
Number LNM99PK000005L effective February 15, 1999 ("General Agreement"); and
WHEREAS, Seller and Customer have agreed to fund a co-marketing arrangement;
and
NOW THEREFORE, in consideration of the premises contained herein and other
good and valuable consideration,, the receipt and sufficiency of which are
hereby acknowledged, the Parties hereto agree to incorporate this Amendment
One into the General Agreement as follows.
1. TERM
This Amendment shall be coterminous with the General Agreement, unless
earlier terminated as provided by this Amendment or the General Agreement,
and shall remain in effect for so long as the General Agreement remains in
effect. The term of this Amendment shall be referred to as the "Term."
2. SCOPE
The terms and conditions of this Amendment incorporate by reference and
attach hereto the General Agreement except as expressly modified,
supplemented, or deleted herein. Any such modifications, supplements, or
deletions shall apply only to this Amendment and shall not apply to any other
agreement, unless so provided therein. In the event of any conflict between
the terms of this Amendment and the General Agreement, the terms and
conditions of this Amendment shall apply only to the Products and Licensed
Materials herein.
3. MARKETING DEVELOPMENT FUND
Section 1.35, MARKETING DEVELOPMENT FUND, is hereby added in its entirety as
follows:
"1.35. MARKETING DEVELOPMENT FUND
Seller agrees to create a Marketing Development Fund ("MDF") of [ * ]. Said
allocation shall be calculated by Seller pursuant to the guidelines set forth
in the attached Exhibit A and shall be retroactive back to the
* INDICATES CONFIDENTIAL TREATMENT REQUESTED
1
effective date of the General Agreement. Any amounts allocated to the MDF
hereunder shall be subject in all respects to and may be utilized by Customer
only in accordance with the MDF guidelines in Exhibit A to and must be used
prior to term expiration or forfeited.*
4. MODIFICATIONS
Section 1.19, NOTICES, is hereby amended as follows to change Seller's point
of notification:
*If to Seller Lucent Technologies, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTN: Contract Manager
5. ENTIRE AGREEMENT
This Amendment, together with exhibits attached hereto and made a part of the
General Agreement constitute the entire agreement between the Parties with
respect to the subject matter hereof and supersede all prior oral and written
communications, agreements, and understandings of the Parties on such subject
matter.
IN WITNESS WHEREOF, the Parties hereto have caused this Amendment One to be
executed by their duly authorized officers or representatives on the date(s)
indicated.
JATO COMMUNICATIONS CORPORATION LUCENT TECHNOLOGIES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇. ▇. ▇▇▇▇▇▇▇
-------------------------- ------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇. ▇. ▇▇▇▇▇▇▇
------------------------ ----------------------
Title: VP Marketing Title: Sales VP
----------------------- ---------------------
Date: 8/20/99 Date: 8/24/99
----------------------- ---------------------
2
EXHIBIT A
MARKETING DEVELOPMENT FUND GUIDELINES
1. MARKETING DEVELOPMENT FUND
The Marketing Development Fund (MDF) is a cooperative approach to
marketing and promotion. The program provides assistance for
pre-approved market development and promotional activities executed by
authorized Lucent Technologies Global Service Provider (GSP) customers to
stimulate Customer's marketing and business activity.
1.1 MDF FUNDING
- Funding is based on the year's purchases of products only.
- For customers to be eligible for MDF, a written marketing plan must
be jointly approved by the Lucent Technologies GSP Marketing
Administrator and sales organization and the customer's marketing
and sales organization prior to submission of any MDF reimbursement
claims.
- Proper MDF forms shall be submitted by the customer along with
supporting documentation for pre-approval. After approval, copies of
original paid invoices are submitted. MDF reimbursements are issued
as cash payments or credits to be applied to current or future
Lucent Technologies invoices.
- MDF reimbursements apply to marketing activity within the approval
plan only, and only up to the current accrued MDF balance.
- MDF payments are made quarterly.
1.2 IT'S A FIVE STEP PROCESS
1. Jointly prepare a Marketing Development Business Plan. This plan
must at a minimum include:
- Marketing opportunities or projects designed to stimulate
marketing and business activities
- Forecasts of new revenues produced with corresponding cost
summaries, and
- Specific "measurements of success."
2. Submit a completed MDF Submittal Form for pre-approval.
3. When the project is completed, the approved MDF Submittal Form will
be returned to Lucent Technologies along with PAID invoices and
substantiating documents.
4. The MDF program administrator will process the reimbursement claim,
verify that funding is available, and, if so, forward the approval
documentation to the customer with a credit memo.
5. When submitted by the customer, the amount of the credit memo will
be credited to the customer's account.
1.3 ANSWERS TO YOUR QUESTIONS ...
Your primary MDF contact with Lucent Technologies is your Account
Representative. Your Representative can provide whatever assistance
you may need in providing direction and planning marketing
strategies.
1
Lucent Technologies has appointed a Marketing Development Fund
Administrator who handles day-to-day details of tracking and
coordinating reimbursement claims within Lucent Technologies.
1.4 ACTIVITIES ELIGIBLE FOR MDF REIMBURSEMENT
1.4.1 DIRECT MARKETING
Direct marketing may include advertising, e.g. print ads and radio
spots, collateral salesware, catalogs, trade show fees, Lucent
Technologies product displays, direct mail and telemarketing
programs and other pre-approved activities. MDF funds may be
utilized to assist with individual company customization of direct
marketing materials, including development, printing, and one-time
production costs on authorized mailings.
1.4.2 EVENTS
MDF allowances may be used to off-set Lucent Technologies
sponsorship of events such as technology forums, conferences,
seminars, trade shows or other business related activities.
Pre-approval requests must clearly demonstrate goals and objectives
of the event. Reimbursement claims must include a list of any other
co-sponsors, a copy of guest invitations to the event, detailed
event cost estimates, and a full description of the participation,
involvement, and activity by the Lucent Technologies Representative
who would attend or support the event.
1.4.3 DATABASE ACQUISITION
MDF can be utilized to fund a variety of pre-approved database
tools such as market-based automated pricing tools (which could
include basic Centrex rates, standard features, and ISDN rates and
features), and Marketing Information Databases (such as MKIS) for
client prospecting, lead generation and infrastructure modeling.
1.4.4 SALES INCENTIVE PROGRAMS
Incentive programs to stimulate marketing and business activities
are designed and administered by the customers. A jointly
established target for service activity penetration must be in
effect and tracked for the duration of the program. Proposed
incentive programs must conform to the following guidelines:
- An outline of procedures to administer, track and audit the
program is provided.
- Estimated program costs, award descriptions and values are
identified.
- A complete program activity description with specific
time-frames is established.
- A list of participating Account Executives and Sales Managers
and their incentive program objectives is submitted to Lucent
Technologies.
1.4.5 MDF PERSONNEL
Under the MDF program, the Lucent Technologies customer may fund
technical consultants and/or marketing sales consultant personnel
to implement marketing and sales programs to stimulate marketing
and business activity. All pre-approved personnel funded by MDF
must be dedicated 100% to stimulating Lucent Technologies product
sales. All expenses must conform to standard Lucent Technologies
voucher guidelines. All expenses require pre-approval and must
include overall project concept, opportunity identification,
program cost, and a detailed action plan with measurable milestones
and start-stop dates. MDF payments for personnel are made quarterly.
2
*** Text Omitted and Filed Separately
Confidential Treatment Requested
Under 17 C.F.R. Sections 200.80(b)(4),
200.83 and 240.24b-2
AMENDMENT TWO
TO
GENERAL AGREEMENT
BETWEEN
JATO COMMUNICATIONS CORPORATION
AND
LUCENT TECHNOLOGIES, INC.
This Amendment Number Two ("Amendment") is made this 24th day of August 1999,
by and between JATO Communications Corporation, with offices located at ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Customer") and Lucent
Technologies, Inc., a Delaware Corporation with offices located at ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ("Seller") (collectively known
as the "Parties").
WHEREAS, Customer and Seller have previously entered into a General Agreement
Number LNM99PK000005L effective February 15, 1999 and Amendment One dated
August 9, 1999 ("General Agreement"), and
NOW THEREFORE, in consideration of the premises contained herein and other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties hereto agree to incorporate this Amendment
Two into the General Agreement as follows,
1. TERM
This Amendment shall be coterminous with the General Agreement, unless
earlier terminated as provided by this Amendment or the General Agreement,
and shall remain in effect for so long as the General Agreement remains in
effect. The term of this Amendment shall be referred to as the "Term."
2. SCOPE
The terms and conditions of this Amendment incorporate by reference and
attach hereto the General Agreement except as expressly modified,
supplemented or deleted herein. Any such modifications, supplements, or
deletions shall apply only to this Amendment and shall not apply to any other
agreement, unless so provided therein. In the event of any conflict between
the terms of this Amendment and the General Agreement, the terms and
condition of this Amendment shall apply only to the Products and Licensed
Materials herein.
3. AGREEMENT MODIFICATIONS
Article III, Entire Agreement, is hereby changed to Article VI, Entire
Agreement.
JATO amendment II 1 08/24/99
Lucent Technologies Proprietary
Use Pursuant to Company Instructions
Article III, Provisions Applicable To Installation And Other Services, is
hereby added in its entirety as attached.
Article IV, Provisions Applicable to Maintenance, is hereby added in its
entirety as attached.
Article V, Provisions Applicable to Network Management Services.
4. ENTIRE AGREEMENT
This Amendment, together with attachments and made a part of the General
Agreement constitute the entire agreement between the Parties with respect to
the subject matter hereof and supersede all prior oral and written
communications, agreements, and understandings of the Parties on such subject
matter.
IN WITNESS WHEREOF, the Parties hereto have caused this Amendment Two to be
executed by their duly authorized officers or representatives on the date(s)
indicated.
JATO COMMUNICATIONS CORPORATION LUCENT TECHNOLOGIES, INC.
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇.▇. ▇▇▇▇▇▇▇
-------------------------------- ----------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇ Name: ▇.▇. ▇▇▇▇▇▇▇
------------------------------ --------------------------
Title: VP & CTO Title: Sales VP
----------------------------- -------------------------
Date: 8-24-99 Date: 8/24/99
----------------------------- -------------------------
JATO amendment II 2 08/24/99
Lucent Technologies Proprietary
Use Pursuant to Company Instructions
ARTICLE III
PROVISIONS APPLICABLE TO INSTALLATION AND OTHER SERVICES
GENERAL: The provisions of this Article III shall serve as the
Statement of Work (SOW) for and shall apply to the Services ordered by
Customer and furnished by Seller under this Agreement.
3.1 SITE REQUIREMENTS:
(a) Customer is solely responsible for ensuring that the installation site
is compliant with any site requirements identified by Seller for the
installation and/or operation of any Products, Licensed Materials, or
Services furnished by Seller under this Agreement. Such site
requirements shall include, without limitation, those site requirements
set forth in this Article. Seller agrees to cooperate with Customer to
ensure compliance with all site requirements, provided that such
cooperation shall not require Seller to incur any out-of-pocket costs
unless the parties expressly agree otherwise in writing.
(b) Customer shall be solely responsible for ensuring that the installation
site complies with all applicable laws, orders, and regulations of
federal, state and local governmental entities including, without
limitation, those relating to environmental conditions.
(c) Notwithstanding anything contained in this Agreement to the contrary,
Seller shall have no liability to Customer, its employees, agents, and
customers for any delay by Seller in completion of any installation or
other Service to be provided by Seller under this Agreement if such
delay is attributable to the failure by Customer to comply with any
site requirements or to provide any other items which are the
responsibility of Customer under this Article Ill.
(d) The site requirements which are solely the Customer's responsibility
shall include but are not limited to the following:
- Co-Location implementations will be based on a standard
configuration, specified by Customer in conjunction with
Lucent, to include; electronic equipment (such as ATM
concentrators, DSLAM, routers, etc.), equipment racks,
cabling, and ancillary materials. Site specific requirements
will be identified by Customer and adapted to specific
configurations.
- All implementations must be in compliance with the Co-Location
Agreements between Customer and the ILEC for each site. It is
Customer's responsibility to review and apply the requirements
of these agreements to the Co-Location implementations.
- It is the intent of Customer to implement cageless
installations wherever possible, and caged and virtual
installations only when necessary due to the availability of
ILEC facilities, scheduling and costs.
JATO article III 1 08/24/99
Lucent Technologies Proprietary
Use Pursuant to Company Instructions
Customer will perform all engineering functions associated with the
implementation of their network, including but not limited to the
following list:
- Develop and maintain floor plans, wiring and installation
drawings
- Develop and maintain instructions to guide Lucent
installation forces
- Understand and intemperate ILEC interconnect agreement
- Develop long range plans for hardware evaluation and
selection / substitutions
- Collect site survey information to identify equipment rack
layout (ILEC provided and/or Lucent installed), cable routes,
cable distances, verify MDF frame, DSX bay, BDFB, and CO
grounding positions and availability.
- Identify changes to the standard configuration drawings and
▇▇▇▇ of Materials
- Develop and maintain site-specific ▇▇▇▇ of materials (BOM's)
and CAD drawings.
- Develop and maintain appropriate technical documentation.
- Determine Content and filing requirements of Co-Location
agreements with ILECs.
- Placement of Purchase Order(s) for Co-Location sites will
begin the Implementation processes by Lucent.
3.2 ADDITIONAL ITEMS TO BE PROVIDED BY CUSTOMER
In the event the site survey conducted by the parties pursuant to
the site acceptance meeting criteria established determines that the
necessary requirements are not met at the commencement of the installation of
the Products and the Customer needs to arrange for alterations and/or
repairs, the order will be placed on hold until such time as requirements are
met. During such interval, Seller reserves the right to determine any
schedule and price impacts
3.2.1 ADDITIONAL RESPONSIBILITIES OF CUSTOMER
(a) In addition to other deliverables and requirements of Customer defined
herein, Customer shall:
- Develop Installation Specifications, Test Verification Procedures
and final Co-Location Cage Installation Checklist.
- Participate in ILEC MOP meetings (only when needed).
- Provide required assistance to Seller to gain access to
Co-Location facilities.
- Perform verification testing of remote access to site equipment.
- Sign off on the final Co-Location Cage Installation Checklist.
JATO article III 2 08/24/99
Lucent Technologies Proprietary
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3.3 ITEMS TO BE FURNISHED BY SELLER
3.3.1 SERVICES:
(a) The following items will be furnished by Seller (as required by the
conditions of the particular Services ordered by Customer):
- Implementation Services for the installation of Customer
network equipment and communications facilities in ILEC
Central Office co-location facilities (CO), and offsite
co-location facilities (collectively referred to as
Co-Locations.) This includes:
- Procurement of Customer network equipment supplied
and/or OEM'ed through Lucent Technologies.
- Materials and logistics management of network
equipment and associated components.
- Kitting of network equipment and associated
components.
- Installation of network equipment and associated
components.
- Project management of all of the above
Implementation Services processes, tasks and
deliverables.
- Maintenance services of Customer network equipment and
communications facilities per the terms and conditions of
separate definition of services.
- Network monitoring of Customer network equipment and
communications facilities per the terms and conditions of
separate definition of services.
- Program management and coordination of all services provided
by Seller to Customer. Seller Program Management Deliverables
include:
- Establishment and maintenance of a complete list of
specific deliverables as described in this Agreement.
- Create a comprehensive schedule based on Customer's
rollout plan for all Seller deliverables, including
linkages and hand-offs between Customer, NetCare (a
division of Seller's), and other involved third parties.
This includes Order Acceptance and processing, manufacture
of equipment, kitting, installation and testing.
- Track implementation status against plan. Coordinate
with Customer for priority installation
- Document and implement a Change Control Plan (rollout
schedule, site/city priority changes, staging
implications, etc.) to maintain the integrity of the
project. This Change Control Plan will include a change
control procedure to document changes during the project.
These changes may result in schedule accelerations or
delays as well as monetary increases or decreases with
respect to overall project results.
- Maintain Action Item Register
- Implement Jeopardy Plan
JATO article III 3 08/24/99
Lucent Technologies Proprietary
Use Pursuant to Company Instructions
- Provide a Project Communications Plan that will provide
weekly progress reports on items such as: jeopardy
escalation issues, weekly status meetings, action item
resolution and schedule status.
- Implement a bi-monthly executive meeting to communicate
pertinent issues at a project executive level.
- Provide Completion Notices to customer on a site-by-site
basis.
- Participate in ILEC MOP meetings.
(b) WAREHOUSING, DELIVERY, RECEIPT & ON-SITE STORAGE OF EQUIPMENT AND
GENERAL CLEANING Seller's personnel will be on-site at the time the Products
are delivered. Such personnel will accept the Products, unpack for inventory
purposes and inspect such Products for damage. Seller will resolve all
shipping errors, inventory discrepancies and damage issues. This function
shall be performed in an area previously designated for the storage and
unpacking of equipment and Product(s). Such area will be selected based on a
location that minimizes movement of material and personnel through the work
site. In the event storage is limited or inadequate, as determined by Seller,
temporary storage facilities such as trailers or containers may be required.
Any fees associated with the procurement of temporary storage facilities are
not included in Seller's quoted prices and shall be solely the responsibility
of the Customer as per customer approval. Materials such as plywood or
masonite will be utilized as necessary, to prevent cable reels, iron work and
other heavy objects from damaging floors, walls and doors. Seller shall
perform general cleaning of the equipment and storage areas (e.g. clearing
floors of debris, packing material, etc.) on a regular basis throughout the
installation period. Rubbish shall be disposed of at Seller's expense and in
compliance with local requirements.
(c) HARDWARE ASSEMBLY Hardware assemblies and overhead cable rack, iron work
and conduit (collectively "Components") will be delivered for specific bays
and cabinets as identified in the firm price quote provided by Seller to
Customer. Unless included herein or under separate agreement. additions of
these components to provide access to other locations (i.e. power rooms,
computer rooms, distributing frames not located with Products, or Products
located on separate floors) will be specifically excluded from the
installation services. Such additions will only be included in the
installation services for an additional charge. Seller will place and secure
all ordered products in the location specified in the engineering
specifications.
(d) INSTALLATION Seller installation crews will construct the configuration
per Customer supplied installation instructions, drawings and check lists.
Installation will verify that the system or individual components power up,
Installation will perform the following services:
- Receive packaged materials for installation at the Co-Location
- Schedule on-site Technician for Hardware Installation
- Unpack, Inspect, and Inventory Equipment
- Installation of rack equipment per specifications
- Connection to facilities power supply per specifications
- Verify successful power-up and diagnostics per specifications
- Connect and verify all cables and connections (10baseT, serial, etc.)
per specifications
JATO article III 4 08/24/99
Lucent Technologies Proprietary
Use Pursuant to Company Instructions
- Dressing of all cabling per specifications
- Termination of customer's circuits on equipment per design
specifications
- Label all circuit numbers on both ends per specifications
- Provide information for ILEC MOPs
- Update documentation with site specific information
- Site clean up following installation
- Disposal of all packing materials and waste
- Completion of Final Co-Location Cage Installation Checklists as
developed by Customer
(e) MATERIAL LOGISTICS AND KITTING Material logistics and kitting includes
all of the ordering, materials logistics and pre-installation preparation of
the equipment and materials for installation at Customer specified
Co-Location sites. Kitting will be based upon a standard configurations
specified by Customer. Specific changes to the standard configuration
requested by Customer will be defined in the Purchase Order, including
addition or subtraction of equipment and/or services. Customer will determine
site specific requirements that may also result in changes to the standard
configurations.
Lucent will perform these tasks:
- Ordering of all equipment and materials based upon the bills of
materials (BOM's) as specified in the Customer PO for installation at
Customer specified sites.
- Ordering of any cabling, equipment racks or ancillary materials varying
from the standard configuration that must be adapted to meet site
specific requirements as identified by Customer.
- Record configuration, mode/serial numbers, and shipping information.
- Packaging of all equipment racks, electronic equipment, cables and
ancillary materials.
- Shipment of all the above materials to the Co-Location site for
installation.
- Development and implementation of all materials logistics and kitting
processes, procedures, documentation and quality assurance monitoring.
(f) CABLE AND WIRE Seller will wire, attach, terminate and affix all cable
and wire including fiber optic cables supplied with purchased Products. This
may include but is not limited to mechanical wire wrapping, soldering,
crimping, plugging in of pre-terminated cables or polishing of fiber optics
for purchased Product. Seller will run alarm cabling, terminate and test for
the identified equipment including Customer provided environmental scan
points of fire detection and door entry which are less than fifty (50) feet
away and pre-terminated. Seller will verify all copper wiring placed by the
Seller for continuity to detect and analyze opens, shorts, reversals, and
incorrect wiring. Where pairs, quads or groupings are indicated, the grouping
will be verified. Seller will ensure the functionality and integrity of all
fiber directly associated with the installed Products and the fiber optic
cables installed by Seller Within the building structure. Seller will "Dress"
all cabling and wiring and provide physical protection. Seller will properly
protect cables at all "break-off" locations, such as the vertical turns from
the overhead cable rack to bay frame work.
JATO article III 5 08/24/99
Lucent Technologies Proprietary
Use Pursuant to Company Instructions
(g) REPRESENTATION Represent Customer at each ILEC site acceptance meeting
utilizing site acceptance criteria as developed by Customer.
(h) DOA PARTS REPLACEMENT Seller is responsible for dead on arrival
materials.
(i) EXECUTIVE REVIEW MEETINGS Seller's Sales Director and Program Manager
designated for Customer Will monitor the installation process on a weekly
basis and update Customer on an ongoing basis as needed. A monthly executive
review meeting will be set up to Cover any issues, concerns, or hems that
need to be escalated with the Customer.
3.4 ACCEPTANCE
(a) All installation Services shall be considered complete and ready for
acceptance by Customer on turnover for warranty provisions. Upon completion
of the installation, Seller will submit to Customer a notice of completion
or, if Customer has elected advance-turnover of subsystems, a notice of
completion of advance-turnover.
(b) Customer shall promptly make b final inspection of substantial conformance
with the Specifications and do everything necessary to expedite acceptance
of the job. Seller will promptly correct any defects for which it is
responsible. All work will be considered as fully accepted unless Seller
receives notification to the contrary within thirty (30) days after
submitting its notice of completion. Notwithstanding the foregoing,
Customer shall be deemed to have accepted any Products and Licensed
Materials upon the placement of the same into service.
3.5 WORK OR SERVICES PERFORMED BY OTHERS:
Work or services performed at the site by Customer or its other
vendors or contractors shall not interfere with Seller's performance of
Services. Seller shall have no responsibility or liability with respect to
such work or services performed by others. If Customer or its other vendors
or contractors fail to timely complete the site readiness or if Customer's or
its other vendors' or contractors' work interferes with Seller's performance,
the scheduled completion date of Seller's Services under this Agreement shall
be extended as necessary to compensate for such delay or interference.
JATO article III 6 08/24/99
Lucent Technologies Proprietary
Use Pursuant to Company Instructions
ARTICLE IV
(MAINTENANCE - DEFINITION OF SERVICES)
ATTACHMENT A
SERVICE LEVEL AGREEMENT
All service levels, for non-performance, shall be reviewed [ * ] and shall
be computed [ * ]. SLA credits have been defined based on the Service Level
Agreement ("SLA") for the site. The level of the defined credits directly
relates to the critical nature of each node within the Jato network. Events
shall be reviewed on a [ * ]. At the end of [ * ], all SLA credits shall
be expunged and the SLA credits shall start anew. In the event SLA Credits
are issued [ * ], where three or more events occur in [ * ], in addition
to the SLA Credits provided for herein, customer may terminate this
Agreement, upon sixty (60) days written notice based on non-performance. In
the event Lucent has not met the defined service level for the site the
following SLA credits shall apply:
[ * ] SERVICE LEVEL AGREEMENT FOR THOSE SITES IDENTIFIED WITH A CUSTOMER
PROVIDED AND SELLER ACCEPTED PURCHASE ORDER - PRICING SCHEDULE OR ANY
ADDITIONAL SITES MUTUALLY AGREED UPON:
EVENT 1: NO SLA CREDIT.
EVENT 2: [ * ] OF THE ANNUAL SERVICES CHARGES FOR ALL SITES
WITH A CUSTOMER PROVIDED AND SELLER ACCEPTED PURCHASE ORDER.
EVENT 3: [ * ] OF THE ANNUAL SERVICES CHARGES FOR ALL SITES
WITH A CUSTOMER PROVIDED AND SELLER ACCEPTED PURCHASE ORDER.
EVENT 4: [ * ] OF THE ANNUAL SERVICES CHARGES FOR ALL SITES
WITH A CUSTOMER PROVIDED AND SELLER ACCEPTED PURCHASE ORDER.
EVENT 5: EXECUTIVE MEETING SHALL BE HELD BETWEEN BOTH COMPANIES TO
DETERMINE CONTINUATION OF THE AGREEMENT. THE VICE
PRESIDENT, WORLDWIDE NETCARE SALES AND VICE PRESIDENT,
WORLDWIDE NETCARE OPERATIONS SHALL REPRESENT LUCENT
TECHNOLOGIES.
JATO article IV attachment A 1 08/24/99
Lucent Technologies Proprietary
Use Pursuant to Company Instructions
* INDICATES CONFIDENTIAL TREATMENT REQUESTED
NEXT DAY SERVICE LEVEL REQUEST:
EVENT 1: NO SLA CREDIT.
EVENT 2: $[ * ] SERVICES CREDIT.
EVENT 3: $[ * ] SERVICES CREDITED.
EVENT 4: $[ * ] SERVICES CREDITED.
EVENT 5: $[ * ] SERVICES CREDITED.
EVENT 6: EXECUTIVE MEETING SHALL BE HELD BETWEEN BOTH COMPANIES TO
DETERMINE CONTINUATION OF THE AGREEMENT. THE VICE
PRESIDENT, WORLDWIDE NETCARE SALES AND VICE PRESIDENT,
WORLDWIDE NETCARE OPERATIONS SHALL REPRESENT LUCENT
TECHNOLOGIES.
Non-performance, which triggers an event, is defined by the following
criteria: Jato expects the field technician to be ON TIME, carrying the
PROPER TOOLS, and COMPETENT to resolve the problem until there is a CLOSED
TICKET.
DEFINITIONS:
ON TIME means the technician will arrive on site within the
specified response time for the site/equipment.
PROPER TOOLS means the technician has the correct hardware
replacement requested at the time of the maintenance dispatch
and all required tools to replace the faulty hardware.
COMPETENT means that the field technician is skilled to
replace the faulty hardware without effecting the performance
of additional equipment on site. The technician should be
competent to interface with the appropriate Service Provider
in resolution of circuit issues, work with a DSX-1 and DSX-3
panels, and to replace DC powered equipment.
CLOSED TICKET means that the technician has completed entering
the trouble cause and resolution information, time and travel,
and parts requirements information into the trouble ticketing
system and has manually closed the ticket.
SLA CREDITS WILL BE APPLIED TO NEXT SCHEDULED INVOICE.
JATO article IV attachment A 2 08/24/99
Lucent Technologies Proprietary
Use Pursuant to Company Instructions
* INDICATES CONFIDENTIAL TREATMENT REQUESTED
ARTICLE IV
PROVISIONS APPLICABLE TO MAINTENANCE SERVICES OF SELLER
GENERAL: The provisions of this Article IV shall serve as the Statement of
Work (SOW) for and shall apply to the services ordered by Customer and
furnished by Seller under this Agreement.
4.0 MAINTENANCE SERVICES
Seller will maintain the Seller provided data networking equipment and other
vendor equipment, as mutually agreed upon.
Seller will furnish the following items.,
- Maintenance Services
- Full system support
- Problem management and resolution
- Dispatch
- Equipment replacement
- Software maintenance updates
- Customer initiated service escalation
- Hardware maintenance
- Preventative hardware maintenance
4.1 HOURS OF COVERAGE AND RESPONSE TIME OBJECTIVES:
The hours of coverage and response objectives for a Seller Technologies
Customer Engineer dispatched to the Customer site are as follows:
PRODUCT MODEL DESCRIPTION COVERAGE RESPONSE
LUCENT AC 60,120 ATM SWITCH [ * ] [ * ]
COPPER CF200 CE200 DSLAM [ * ] [ * ]
MOUNTAIN
TURNSTONE 600000/3/4 CX100 [ * ] [ * ]
WTI RSM-800DC/288DC REMOTE SITE MANAGER and RACK [ * ] [ * ]
MOUNT MODEM, -48VDC
CISCO 2514 CISCO 2514-DC, [ * ] [ * ]
CISCO 2507-DC CISCO 2505-DC, 8 PORT HUB, 2- [ * ] [ * ]
PORT ASYNC/SYNC
GDC 010B226- SPECTRACOM 2000 CHASSIS, [ * ] [ * ]
002/76P016-001 -48VDC with T1/FT1 DSU/CSU
MODULE
*[ * ], including holidays
**[ * ], excluding holidays
Holidays are defined as New Year's Day, Memorial Day. Independence
JATO article IV 1 08/24/99
Lucent Technologies Proprietary
Use Pursuant to Company Instructions
* INDICATES CONFIDENTIAL TREATMENT REQUESTED
Day, Labor Day, Thanksgiving Day and the day after Thanksgiving, and
Christmas Day.
The response objective for a Seller Technologies Customer Engineer dispatched
to the Customer site is to arrive within [ * ] of the time the request for
dispatch was received by Seller provided that the site is within 50 miles of
the Seller Service Support Center (SSC) and that service is provided during
the contracted hours of coverage. This on-site response objective is from the
time of field Technician dispatch, and does not include any remote diagnosis
that may be required to determine the cause of the failure and the
appropriate resolution.
FAILURE TO MEET CONTRACTED RESPONSE TIMES:
For those sites where response time is contracted, should a Seller Technician
not arrive onsite within the contracted time of dispatch, Seller shall
provide remedy in accordance with the Service Level Agreement (ATTACHMENT A)
attachment to this Definition of Services.
4.2 FULL SYSTEM SUPPORT:
This service provides telephone access to the Seller Customer Assistance
Center (CAC.) and onsite response with spare parts from the Seller
Technologies SSC located near the Customer site. Since Seller is providing
Network Management Services to Customer, Seller will contact the CAC for any
required assistance and/or dispatch. The CAC can also be accessed directly by
Customer by calling the 24 hour hotline number 1-800-WE2-CARE. The direct
service activities provided by the CAC include consultation service, problem
management and problem resolution.
4.3 PROBLEM MANAGEMENT AND RP-SOLUTION
The CAC fields requests for assistance and dispatch under the Full System
Support service. Problem management and resolution involves specific steps
appropriate to the nature of the problem.
- PROBLEM DIAGNOSIS AND CAUSE ISOLATION - The first step includes
troubleshooting actions to identify the cause of the problem and
to separate software-related problems from those caused by
hardware. Seller may, with Customer's permission, remotely access
the Customer network product to assist in the diagnosis of
troubles.
- TROUBLE RESOLUTION - Once the problem has been located, diagnosed
and its cause identified, the CAC will recommend appropriate
actions to resolve the problem.
- RESOLUTION MANAGEMENT - The CAC, working with the Sellers Network
Management Center, will manage the resolution of Customer's
request for assistance to Customer's satisfaction, even when it
necessitates engaging other Seller Technologies or vendor support
groups to acquire the needed expertise. The CAC will continue to
assume responsibility for managing the problem until it is
resolved or until there is mutual agreement that the problem
belongs to another support group for resolution.
4.4 SOFTWARE MAINTENANCE UPDATES
JATO article IV 2 08/24/99
Lucent Technologies Proprietary
Use Pursuant to Company Instructions
* INDICATES CONFIDENTIAL TREATMENT REQUESTED
Software maintenance updates contain the changes made to correct or enhance
functionality or performance. They apply only to current generics or releases
of the supported Seller Products.
- OCCASIONAL UPDATES - Software Maintenance Updates sent in response
to problem reports received at the CAC as part of a software
maintenance service.
- CUMULATIVE SOFTWARE MAINTENANCE UPDATES - Cumulative updates
contain all previously developed corrections and selected
enhancements when necessary to keep software current.
4.5 CUSTOMER INITIATED SERVICE ESCALATION
Customer can escalate any problem to the CAC management by calling the CAC
hotline number. The CAC manager will work out a mutually acceptable Plan of
Resolution. The CAC manager will then monitor the execution of the plan and
keep Customer informed of progress.
4.6 HARDWARE MAINTENANCE
If the reported problem is hardware-caused, services are provided locally by
the Seller Technologies SSC nearest Customer's location. For all covered
hardware problems, a Seller Technologies Customer Engineer will be
dispatched. Seller is responsible to maintain adequate levels of hardware
spares in order to meet SLA objectives. Seller is responsible for cost of all
replacement parts and spares.
4.7 PREVENTIVE HARDWARE MAINTENANCE
Preventive Maintenance is performed in accordance with the manufacturer's
recommendations. Preventive maintenance will be performed during the selected
hours of coverage at a mutually agreed upon schedule.
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ARTICLE V
PROVISIONS APPLICABLE TO NETWORK MANAGEMENT SERVICES
GENERAL: The provisions of this Article V shall serve as the statement of
work (SOW) for and shall apply to the services ordered by Customer and
furnished by Seller under this Agreement.
5.0 SCOPE OF SERVICES
5.0.1 INTRODUCTION
Customer is requesting Seller Network Management Services to support their
service data network. This Definition of Services (DOS) details the
associated activities Customer is requesting Seller to provide for management
of this network. After a final review Seller will produce a Customer
Operations Support Plan to detail service delivery processes. Associated
pricing agreed to by Customer and Seller will be requested and provided in a
separate price schedule. The following sections outline the engagement scope,
deliverable details, and responsibilities of Seller and Customer.
5.0.2 PROJECT SCOPE
In an effort to clarify the services, requested by Customer and to be
delivered by Seller, this document will outline those network management
services to be performed by Seller. All information contained in this
document refers to network management services for the following Customer
network elements: Lucent AC 60/120, Lucent CE200, WTI, Cisco routes,
Spectracom GDC, Turnstone CX100 and other equipment as specified and agreed
upon by Customer and Seller.
Specific areas outside this DOS's scope are:
- Tasks not specifically identified in the Definition of Services in
this document.
- Services not specifically identified in the Definition of Services in
this document.
5.1 DEFINITION OF SERVICES
The following table outlines the major services to be performed by Seller for
this DOS (detailed descriptions are outlined in subsequent paragraphs of this
document):
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TABLE 1
PRODUCT FAULT MANAGEMENT CONFIRMATION RECOVERY PERFORMANCE REPORTING
------------------------- ---------------- --------------------- ----------------------
Lucent AC 60, 120 Yes Yes No
Lucent CE 200 Yes Yes No
Turnstone CX100 Yes Yes No
CISCO 2514 Router Yes No No
CISCO 2507 Router Yes No No
5.1.1 NETCARE NETWORK MANAGEMENT SERVICE CENTER
The NetCare Network Management Services Center (NMSC) is operational 7 days a
week, 24 hours a day, to support critical customer networks. The performance
and productivity of the NMSC Technicians is greatly enhanced through the use
of internally and externally sourced software tools. For example, the NMSC
service request record system stores extensive information on customer
equipment, networks, and locations. NMSC and Field Technicians can input and
access real-time service request information using this system. This
information sharing capability enables Lucent Technicians to coordinate their
testing and repair efforts minimizing resolution time and customer impact.
Our service tracking system includes diverse functionality, allowing
Technicians to perform in-band and out-of-band testing without needing to
switch between tools - a feature increasing productivity and accuracy.
Using a base platform which includes HP OpenView and Seagate Nerve Center
Pro, ▇▇▇▇ Laboratories engineers have developed a state-based artificial
intelligence capability which independently verifies and filters network
events. The collected data presents NMSC Technicians with a specific issue to
investigate, along with complete information about the problem.
NetCare Service engineers' combination of experience, training, and advanced
tools, allows NMSC Technicians to remotely resolve approximately 75 % of our
customers' network problems remotely - without dispatching an onsite
Technician. By vastly reducing onsite dispatches, our average problem
resolution time is less than 1.5 hours, average circuit availability above
99.5 %, and customer satisfaction survey ratings of good to excellent
averaging 95%.
5.1.2 MANAGING YOUR SERVICES
NetCare NMS will assign a Service Implementation Manager (SIM) to the
Customer account. The SIM will become familiar with the specifics of your
network and configurations. While providing coordination of the NetCare NMS
staff, the SIM will measure the Customer is provided all necessary
information and support to implement contracted services. When the SIM has
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verified your devices and services are operating properly, your account will
be migrated to a NetCare NMSC Operations Service Manager for continued
monitoring and service.
5.3 NETWORK FAULT MANAGEMENT SERVICES
5.3.1 STANDARD SERVICES
The NMSC will pro-vide real-time, 24 hour a day, seven day a week fault
management of Customer network elements (per Table 1) using the NMSC's SNMP
Network Management System. This service requires a dedicated circuit to
connect Customer network with the NetCare NMSC. NetCare will provide this
circuit as described herein. The NetCare NMSC will serve as Customer single
point of contact for all network management activities pursuant to this
Agreement
5.3.2 FAULT ISOLATION AND RESOLUTION SERVICES
SNMP Fault Management
This service provides real-time fault management for Customer SNMP compatible
devices using our base platform as described in the NETCARE NETWORK
MANAGEMENT SERVICE CENTER section of this document. The service utilizes
Customer dedicated access line to the NetCare NMSC to provide constant
monitoring of network devices under our care to assure they are operational.
The network management system polls and registers traps and alarms generated
by managed devices automatically creating a service request record.
Trouble Reporting Process
Depending on the type of fault, a trouble will either be reported via a:
1. Trap forwarded to the NMSC monitoring platform by a monitored device.
2. Manual call to the NMSC.
To manually initiate a service request, the Customer team member will contact
the NMSC at ▇▇▇-▇▇▇-▇▇▇▇ and provide either the network address or device name
and your three or four character customer code. All service requests reported
via telephone or SNMP alerts (monitored by the NMSC platform) will be logged and
tracked by the NetCare NMSC. When the NetCare Technician calls to update status
or close a service request, we will use the Data Maintenance Operations System
(DMOS) service request record number.
Fault Isolation and Resolution
The NetCare NMSC will initiate trouble diagnosis, isolation, and resolution
activities for the faulty network device or refer the service request to the
appropriate organization (third party vendor or within Lucent Technologies).
The type of device and circuit trouble will determine the tests to be
performed. The NMSC will diagnose and resolve trouble conditions from
Customer AC120 interface to the CE200 local loop line interface when SNMP
alerts are sent from these network devices to the NMSC SNMP Network
Management System or when a service request is
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reported to NetCare directly by the Customer. The NetCare NMSC will manage
these service requests to resolution. The NMSC is not responsible for
monitoring, diagnosing, or resolving transport facility, customer local loop,
and/or customer promise equipment problems.
The dispatch of repair personnel (pursuant to the terms and conditions of this
Agreement) is governed by and limited to the terms and conditions of the
appropriate service organization's maintenance agreement with the Customer. The
NetCare NMSC will keep the Customer informed concerning service request
resolution progress whenever a significant change or event has occurred in the
status of the service request ticket. Disruptive testing will not be initiated
unless coordinated with and agreed to by the Customer. When a service request
has exceeded mutually agreed upon time limits (as defined in the Seller's
Customer Operation Support Plan), the NetCare NMSC will escalate to the next
appropriate level of management responsible for resolving the service request,
and will continue to escalate until the request is resolved. The NMSC will
provide the Customer with progress reports (as defined in the Seller's Customer
Operations Support Plan).
The NetCare NMS Technician may refer the problem to a third party vendor for
resolution, depending on the problem and the services you have contracted, and
will manage the third party vendor until the problem is resolved (commonly
referred to as Agency). The Technician will also provide status updates at
agreed upon intervals, and escalate any issues not meeting agreed to
requirements. Once resolved, the Customer will be advised of the problem
resolution, and with Customer concurrence the service request record will be
closed and stored in our database.
5.3.3 NETCARE NETWORK MANAGEMENT SUPPORT CENTER RESPONSIBILITIES
1. Maintain a network profile at the NMSC and update the profile with
changes taking place in Customer network. The NetCare NMSC
Add/Change/Delete form and/or Seller installation plans will be the
vehicle for the Customer to convey information to the NetCare NMSC.
2. For contracted devices, the NetCare NMSC will filter incoming SNMP
traps, disregard irrelevant traps, and act upon consequential traps.
The NMSC will coordinate with Customer Network Operations Organization
to review trouble activities.
3. For contracted devices, the NetCare NMSC will refer service requests to
the appropriate vendor (as described above). The NetCare service
request record will remain open until service request resolution.
Should further diagnosis be required, NetCare will work with the vendor
to resolve the service request
4. The NMSC will have one hour from the creation of a service request
(whether generated through the NMSC platform or via a manually
generated call from the Customer) to determine the need for a Seller's
field maintenance dispatch for contacted managed network elements. At
the one hour ▇▇▇▇, the Seller's NetCare NMSC will initiate a field
dispatch request 100% of the time unless contributing factors do not
warrant a field dispatch. For these types of service requests, the
Seller's NetCare NMSC will coordinate with the Customer's Network
Operations Center to gain concurrence. The joint Customer/Seller team
will monitor performance on a minimum of a monthly basis.
5. Web based monthly network status reports will summarize network
troubles, resolutions, and monthly service transaction totals.
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6. NetCare will provide a dedicated circuit from the NetCare NMSC platform
to the Customer defined network ingress point.
CUSTOMER RESPONSIBILITIES
1. Provide Seller accurate information regarding the network to be managed
including the number and types of devices (manufacturer and model).
2. Monitored devices added or deleted from the network must be reported to
the NMSC. The NetCare NMSC will be unable to provide service on devices
added to Customer network until written notification is received
requesting their addition. Deleted devices will continue to be invoiced
until such written notification is received. The information for adds
and deletes will comply with the format of the NetCare NMSC
Add/Change/Delete form
3. Customer will provide escalation contacts and telephone numbers to the
NetCare NMSC.
4. Customer will provide the NetCare NMSC with a detailed and current
network drawing prior to network management turn-up.
5. Customer will assign all IP addresses.
6. NetCare requires a dial-line to all network elements managed by the
NMSC to ensure 7x24 access. Customer will be responsible for providing
monitored device dial-lines and the associated dial-line fees. Without
this dial-line, if inband access is lost, NetCare cannot be held
accountable for continuous 7x24 hour delivery of the services outlined
in this Definition of Services and the associated Service Level
Agreements (SLA).
5.4 NETWORK CONFIGURATION RECOVERY
The NetCare NMSC will provide configuration recovery for Customer network
devices (per Table 1, for those devices under contract). The device back-up
schedules and number of images stored will be outlined in the Seller's
Customer Operations Support Plan. This information will be available, should
it be needed, to replace lost configurations as a result of device/network
failure or disaster. Upon Customer request, NetCare will load the appropriate
stored configuration into the affected device(s), and verify successful
completion. Affected network devices, which may have been physically damaged
or Impairment must first be repaired and verified operable by the NetCare
NMSC.
5.0 NETWORK PERFORMANCE REPORTING
The NetCare NMSC will remotely obtain and report performance data from the
Customer's network elements supporting remote access and retrieval of element
performance information (for those devices under contract). The NetCare NMSC
will not provide analysis of this data. This information will be forwarded to
Customer Network Engineering Team for analysis. The monthly reporting of
performance data will commence 45 days after the NetCare NMSC begins managing
Customer network.
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