EXHIBIT 10.1 ORIGINAL EQUIPMENT MANUFACTURER/PRIVATE LABEL AGREEMENT
CONFIDENTIAL TREATMENT
Original Equipment Manufacturer/
Private Label Agreement
This Agreement is made this 4/th/ day of January, 2001 by and between G3M
Corporation, with its principal place of business at 0000 Xxxxxxx Xxxxx Xxxx,
Xxx Xxxx, XX 00000, (hereinafter "SELLER") and Larscom Incorporated, with its
principal place of business at 0000 XxXxxxxxxx Xxxxx, Xxxxxxxx, XX 00000,
(hereinafter "BUYER"). This Agreement sets forth the terms and conditions for
the sale of Products by SELLER, and the purchase of the same by BUYER.
1. DEFINITIONS
1.1 "SELLER's Products" shall mean all SELLERS hardware products
set forth in Exhibit "A" hereto, including all firmware
incorporated as part of the hardware, and all necessary
Documentation relating thereto.
1.2 "SELLER's Software" shall mean all software incorporated in
SELLER's Products which includes all software listed in
Exhibit "A", all software upgrades, and all necessary
Documentation relating thereto.
1.3 "Documentation" consists of all manuals, release notices, and
other materials generally made available to the customers of
SELLER with the sale of SELLER's Products and/or Software.
2. EFFECTIVE DATE OF AGREEMENT AND TERM
This Agreement shall become effective as of the date set forth above
and shall continue in full force and effect for ***** from such date.
At the end of the initial ***** term, BUYER shall have the right to
renew this Agreement, upon the same terms and conditions provided
herein, for additional ***** terms. In the event BUYER does not wish to
exercise its rights under the preceding sentence, BUYER shall provide
written notice to SELLER not later than ***** prior to the end of the
initial and/or subsequent term(s) of this Agreement.
3. PRICING AND DISCOUNTS
3.1 Pricing - The List Prices for the Products are set forth in
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Exhibit "A" and shall not be increased during the *****
period. The List Prices may be increased by SELLER once at
each ***** period provided that the List Price has changed for
all customers and that SELLER provides BUYER with a *****
prior written notice of such proposed price increase. In the
event that BUYER does not accept the increased prices, or that
discounts offered are unacceptable to BUYER, BUYER shall have
the right to terminate this Agreement, and/or any underlying
purchase orders, without penalty.
3.2 Discounts - SELLER shall sell to BUYER the Products at the
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List Prices less the applicable discounts specified in Exhibit
"B" as ordered by BUYER on BUYER's purchase orders pursuant to
this Agreement.
Confidential treatment has been requested for portions of this exhibit. The copy
herewith omits the information subject to the confidentially request. Omissions
are designated as *****. A complete version of this exhibit has been filed
separately with the Securities and Exchange Commission.
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CONFIDENTIAL TREATMENT
3.3 ***** Customer - SELLER represents that the ***** are ***** by
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the SELLER to ***** in the ***** under similar terms and
conditions. Should SELLER ***** to any *****, SELLER shall, at
the same time, ***** for the ***** under *****. Such *****
shall apply to ***** shipped within thirty (30) days prior to
the *****, and to ***** but not yet shipped, and to *****
thereafter purchased pursuant to this Agreement.
3.4 Taxes - Prices set forth in this Agreement are exclusive of
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any and all Federal, state and local excise, sales, use or
similar taxes. When applicable, such items shall appear as
separate additional items on SELLER's invoices and shall be
paid by BUYER.
4. TERRITORY
This agreement provides for BUYER to sell Products on a ***** basis
except for those countries listed in Exhibit E.
5. SPARE PARTS
5.1 Availability - SELLER shall maintain a supply of spares to
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perform warranty and out-of-warranty repairs to Products, or
make such spares available for sale to BUYER as described
below, for a period of seven (7) years after the delivery of
the last unit of Product to BUYER under this Agreement, or
discontinuation of such Product, whichever is later.
5.2 Purchase - BUYER may, at any time, opt to purchase spare parts
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to directly support its installed customer base. SELLER agrees
to make available to BUYER the spare parts as may be mutually
agreed upon for specific items and prices. Emergency orders
for spare parts placed as a result of a machine down condition
shall be shipped within one business day, after receipt of
BUYER's purchase order number, (transmitted by facsimile or
e-mail), by SELLER. Routine orders for spare parts shall be
shipped within thirty (30) days after receipt of BUYER's
purchase order number by SELLER. In the event that SELLER
cannot comply with the agreed to delivery schedules set forth
above, Seller agrees to provide completed units of Product
(versus individual spare parts) for use by BUYER for
replacement of its customers' equipment, within the same
time-frames.
6. TERMS OF PAYMENT
Invoices shall be rendered by SELLER no earlier than the date of
shipment of Products or completion of services rendered hereunder.
Payment shall be made on undisputed invoices, in full, net thirty (30)
days after receipt of invoice; provided however, that BUYER need not
pay for unsatisfactory Products rejected under this Agreement and
returned. Payment shall not constitute acceptance of any Products by
BUYER.
7. ORDERING
7.1 Purchase Orders - SELLER agrees to be prepared to ship the
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Products listed in Exhibit "A". BUYER shall provide SELLER
with purchase orders from time to time directed to the
attention of Order Administration at SELLER's Principal
location, and SELLER agrees to deliver said Products. Said
purchase orders shall refer to and indicate that they are
being submitted subject to the terms and conditions of this
OEM Agreement between BUYER and SELLER. All purchase orders
submitted under this Agreement shall be governed and
controlled by the conditions of this Agreement, which shall
take precedence over any conflicting terms and conditions
contained in any purchase order or acknowledgement. Purchase
orders submitted under this Agreement will specify:
***** Confidential treatment has been requested for the redacted portions. The
confidential redacted portions have been filed separately with the Securities
and Exchange Commission.
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CONFIDENTIAL TREATMENT
a) identity of the Products ordered;
b) the quantity of each such Product ordered;
c) the discounted unit price for each such Product;
d) shipping instructions;
e) date of delivery at BUYER's or BUYER's Customer
dock; and
f) any other special information required by this
Agreement or by the circumstances of the order.
7.2 Product Forecasts - At the request of the SELLER, BUYER will
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provide monthly forecasts of Products which BUYER estimates it
will need, for at least the subsequent six (6) month period;
however, in no event shall BUYER be obligated to purchase the
amounts of Products set forth in the forecast.
7.3 Quotas - There are no minimum quotas or quantities which BUYER
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is required to purchase under this Agreement.
8. DELIVERY
8.1 Delivery/Shipping - All deliveries will be made F.O.B.
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SELLER's factory at 0000 Xxxxxxx Xxxxx Xxxx, # 000, Xxx Xxxx,
XX 00000. SELLER agrees to drop-ship Products directly to
BUYER's Customers in accordance with BUYER's instructions.
Products shall be packed in accordance with SELLER's best
standard commercial practices as approved by BUYER or in
accordance with BUYER's instructions, if any are given, so as
to prevent damage during shipment.
8.2 Title, Risk of Loss, Freight Charges - Title and risk of loss
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shall, subject to proper packing and proper delivery of the
subject Products to the carrier, pass to BUYER upon delivery
to the common carrier or BUYER's representative at the F.O.B.
point. All transportation charges shall be freight collect
unless otherwise specified. BUYER will notify SELLER relative
to any shipment shortage within thirty (30) days from BUYER's
receipt of the shipment.
8.3 Rescheduling - BUYER shall be entitled to, at any time between
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31 and 90 days prior to the scheduled shipment date,
reschedule and postpone up to ninety (90) days, Products
having up to 50% of the dollar value of the Products scheduled
for shipment. Buyer shall also be entitled to, at any time
prior to 90 days before any scheduled shipment date,
reschedule and postpone up to 90 days, the delivery of any
products scheduled for shipment.
8.4 Lead Times - Purchase orders shall specify a mutually agreed
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to delivery lead time not to exceed thirty (30) days after
receipt of BUYER's verbal purchase order. Reduced lead times
may be requested by BUYER ("Expedited Orders") for reasonable
quantities of Products. SELLER agrees to provide BUYER with
timely notice of any delay in Product production or delivery.
BUYER's knowledge of such delays is not a waiver, direct or
implied, of SELLER's production or delivery obligations
hereunder.
8.5 Safety Stock - SELLER agrees to maintain a safety stock equal
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to five percent (5%) of the total previously shipped units up
to a maximum of twenty-five (25) units, but no less than five
(5) units, in order to promptly support Expedited Orders and
handle unforeseen BUYER requirements.
8.6 Late Deliveries - In the event SELLER does not ship Products
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within the agreed to time frame as shown on BUYER's purchase
order(s), and if the shipment is more than five (5) days late,
BUYER will advise Seller of requirements imposed by its
customer. BUYER and SELLER will then use their best efforts to
meet customer requirements and if these are not met in the
next 30 days, then BUYER may cancel the order(s) without
penalty.
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CONFIDENTIAL TREATMENT
9. CHANGES
BUYER may at any time request SELLER to make changes within the general
scope of this Agreement in any of the following: (i) the Specification;
(ii) SELLER's method of shipment or packing; (iii) the quantities of
Products to be delivered hereunder; (iv) the place of delivery; and/or
(v) the delivery schedule. If any such change causes an increase in the
cost of, or time required for, performance under this Agreement, SELLER
shall have ninety (90) days to submit a proposal detailing the
adjustments in the price and/or delivery schedule for Products directly
affected by requested BUYER's changes.
10. TESTING AND INSPECTION, ACCEPTANCE
Payment for the Products delivered hereunder shall not constitute
acceptance thereof. The BUYER may elect at anytime, and from time to
time, to source inspect any and all of the Products for the BUYER in
the SELLER's facility before shipment to the BUYER or BUYER's
customers. The BUYER may, at its option, elect to either source inspect
the Product, or waive source inspection in favor of in-house inspection
for that shipment. BUYER shall have the right to reject any or all of
said Products within thirty (30) days after BUYER'S receipt of the
Products, which are, in BUYER's reasonable judgment defective or
nonconforming. Products rejected and Products supplied in excess of
quantities called for in BUYER's purchase order may be returned to
SELLER at its expense. In the event BUYER or BUYER's customer receives
Products whose defect or nonconformity are not apparent on inspection,
BUYER reserves the right to require replacement. Nothing contained in
this Agreement shall relieve in any way SELLER from the obligation of
testing, inspection and quality control.
11. QUALITY ASSURANCE
SELLER agrees to maintain a formal Quality Assurance Program which may
be reviewed by BUYER for approval. On a periodic basis and/or upon
determination of need based upon problems, SELLER shall be subject to a
quality audit. These audits to be performed by BUYER's Quality
Representative, shall serve to verify that SELLER is maintaining or
improving quality and operational capabilities.
12. AGENCY APPROVALS
SELLER agrees that all Products sold hereunder shall meet UL and CSA
specifications and have been recognized and labeled accordingly. SELLER
shall provide BUYER with a copy of the UL and CSA
recognition/certification. SELLER agrees that all Products sold
hereunder shall meet the FCC Part 15, Subpart J regulations for Class A
computer devices and FCC Part 68, and any other applicable FCC
regulations, and shall be labeled accordingly. SELLER shall provide
BUYER with a copy of the FCC recognition/certifications.
13. WARRANTY
13.1 Warranty Coverage - SELLER warrants that the Products and/or
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Software sold hereunder will conform to the applicable
specifications (attached hereto as Exhibit "D") and will be
free from defects in material and workmanship for a period of
twenty four (24) months from the date of receipt of Product
and/or Software at BUYER's facility or twenty four (24) months
from the date of receipt of Product and/or Software at BUYER's
customer facility if product is drop-shipped by SELLER.
13.2 Repair/Replacement - If any Products are defective in
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materials or workmanship, or do not conform to specifications,
BUYER or BUYER's customers shall have the right to return them
to SELLER. The defective Products will be returned, with a
description of the failure, freight prepaid. The defective
Products will either be repaired or replaced at SELLER's
option and at no charge to BUYER or BUYER's customer, within
ten (10) working days of receipt, and returned freight prepaid
to BUYER or BUYER's customer as directed by BUYER. SELLER
shall notify BUYER if the Product will be replaced. In the
event that the same unit of Product
CONFIDENTIAL TREATMENT
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is sent to SELLER for repair more than once due to the same
mode of failure, then SELLER must replace the unit or
defective components with new Product.
13.3 Dead On Arrival - If a product arrives "Dead on Arrival"
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(DOA), SELLER will, within twenty-four (24) hours from
notification, ship a replacement unit to BUYER or BUYER's
customer freight pre-paid. BUYER agrees to return DOA product
to SELLER within 15 days, freight collect.
13.4 Breach of Warranty - Should SELLER, for any reason, fail to
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honor the warranty provisions herein, SELLER shall be deemed
in breach of this Agreement. BUYER may pursue any and all
other remedies available as discussed in paragraph 46. Dispute
Resolution. SELLER acknowledges that BUYER has an independent
reputation with its customers which BUYER may desire to
protect despite any breach by SELLER.
13.5 Out-of Warranty Repairs - SELLER shall provide out-of-warranty
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repair and replacement services for all Products furnished
under this Agreement for a period of seven (7) years from date
of discontinuation of the Product, or the date of delivery of
the Product, whichever is later. Charges for such
out-of-warranty repairs shall be at SELLER'S then current
charges less any applicable discounts.
14. *****
14.1 Grant *****- BUYER acknowledges that the software and firmware
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resident in the Products is confidential, proprietary and/or
copyrighted by SELLER. SELLER hereby grants to BUYER a *****
and *****, under all patents and proprietary interests owned
or controlled by SELLER and pertaining to the Products herein,
to use ***** the Products.
14.2 Restrictions - The software and firmware provided hereunder,
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including any subsequent improvements or updates, are
furnished to BUYER under a ***** and ***** for use in a *****.
BUYER agrees that all software and firmware shall not be sold
or distributed or otherwise made available to customers or
other third parties separate from the Product in which it is
resident, nor copied or tampered with, nor shall its removal
be attempted, except for copies made for archival purposes.
BUYER agrees that, in connection with the transfer of any
Product to its customer and in connection with any subsequent
transfer by its customer to a third party, it will
contractually restrict all such transferees such that they
shall:
a) limit the use of the software and firmware thereof to
that Product transferred by BUYER, and
b) not reverse assemble or reverse compile any of the
software or firmware.
15. EPIDEMIC OF FAILURES
Notwithstanding the warranty provisions of this Agreement, or any other
provision of this Agreement, if an epidemic of failures of functional
specifications or nonconformity's of the Products occur, due to the
same specifically identified symptom, at rate greater than five percent
(5%), within any two (2) month period, of a five (5) year span, from
date of shipment by SELLER regardless of whether the Products are in or
out of warranty, SELLER agrees to use its best efforts (at its expense)
to remedy the failed Products and to prevent the problem from occurring
in future deliveries
***** Confidential treatment has been requested for the redacted portions. The
confidential redacted portions have been filed separately with the Securities
and Exchange Commission.
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CONFIDENTIAL TREATMENT
In the event that SELLER is unable to remedy the problem in the
Products, BUYER may, at its option, cancel any and all purchase orders
or portions thereof for Products which are experiencing the epidemic
failures and BUYER may return, for full credit, the Products which are
under warranty and are experiencing the epidemic failures and which
have already been received by BUYER or BUYER's Customers. BUYER may at
its option, elect to replace said Products with products which fulfill
BUYER's customer's needs and invoice SELLER for all reasonable expenses
incurred. Further, BUYER may cancel any and all purchase orders or
portions thereof for Products which were used in, or in conjunction
with, the Products experiencing the epidemic of failures (e.g., spare
parts, accessories, etc.), and BUYER may return freight collect and for
full credit, such Products which have already been received.
16. EMERGENCY SUPPORT
In the event of an emergency involving SELLER's Product at BUYER's
facilities or BUYER's customer's site, SELLER will provide to BUYER
qualified factory technical support when such assistance is required by
BUYER within twenty-four (24) hours, not to exceed forty-eight (48)
hours, upon notice given by the Manager or Director of Customer Service
Operations, or other persons designated by BUYER. SELLER shall
designate one or more contact persons who will be responsible for
assuring that the emergency support is provided. Whether the cost of
the emergency assistance shall be borne by SELLER or BUYER depends on
whether the Products are under warranty and in compliance with SELLER's
specifications. If the Product is in compliance with the
specifications, or if the product is not under warranty, BUYER will
bear the cost and will be billed (except in situations involving
epidemic failures as described in Section 15, above) at SELLER's then
prevailing published rates. If the Product is under warranty or not in
compliance with SELLER's specifications, then SELLER shall bear the
cost of the emergency assistance.
17. TECHNICAL SUPPORT AND DOCUMENTATION
17.1 Technical Support - SELLER will provide the following support
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at BUYER's plant or BUYER's customer site:
a) Engineering Support, *****, to BUYER's Engineering
personnel in the form of telephone consultation by
SELLER's Engineering personnel during normal work
hours.
b) Field Support, *****, to BUYER's Customer Service
Engineering personnel in the form of telephone,
facsimile or e-mail consultation by SELLER's support
organization and technical assistance specialists on
a 24 hour-a-day seven day-a-week basis.
c) Emergency Support, *****, to BUYER's Customer Service
Engineering personnel, to include appropriate
escalation procedures, by SELLER'S support
organization and technical assistance specialists on
a 24 hour-a-day, seven day-a-week basis.
17.2 Documentation - Concurrent with the date of this Agreement,
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SELLER will provide BUYER with a list of all
documentation/manuals available or planned for general
information, training and for maintenance of the Products.
Such documentation may include, but not be limited to,
maintenance manuals (which typically include site preparation,
installation, operation, functional description, preventative
maintenance, maintenance procedures, logic block diagrams for
the Products), logic card manuals which include card layout,
technical memos or bulletin file, and copies of documentation
covering any Product changes (as described in
***** Confidential treatment has been requested for the redacted portions. The
confidential redacted portions have been filed separately with the Securities
and Exchange Commission.
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CONFIDENTIAL TREATMENT
paragraph 23, herein). SELLER hereby grants, at no charge to
BUYER, the right to reproduce, translate into other languages,
and prepare derivative works, distribute, sell, perform and
display, in whole or in part, manuals and documentation
specified herein. During the term of this Agreement, SELLER
shall provide BUYER with written notification sixty (60) days
or more prior to the general release of said documentation.
BUYER may integrate such changes into its version of the
documentation at BUYER's option.
18. TRAINING
SELLER agrees to provide ***** training courses per year to BUYER
*****. Additional training courses shall be provided at a cost to be
mutually agreed upon. For training courses taught at locations other
than SELLER's facilities, BUYER agrees to reimburse SELLER for
reasonable travel and living expenses of the instructor.
19. ESCROW
At BUYER's request and expense and at any time during the term of this
Agreement, SELLER will be prepared to place in escrow all documentation
necessary for the production and manufacture of Products covered under
this Agreement, such as, but not limited to, engineering, manufacturing
and software source code documentation ("Escrow Material"). The
designated escrow agent will be instructed to deliver to BUYER said
documentation and source code in the event of an arbitration event
relating to a default by SELLER as outlined in Article 30 herein, so
that BUYER may manufacture and support the Products and/or Software.
All intellectual properties remain as property of SELLER.
20. CONFIDENTIAL INFORMATION
Any knowledge or information which either party has disclosed or may
hereafter disclose to the other, which is marked with a confidential or
proprietary notice in connection with the purchases hereunder, shall
not be disclosed, revealed, or transmitted to anyone by the other party
nor shall either party permit such to be disclosed, revealed, or
transmitted to any third party. This provision shall survive the
expiration or termination of this Agreement.
With the exception of software and firmware resident in the Products,
SELLER agrees that it will not disclose to BUYER any information which
it deems as confidential or proprietary unless BUYER agrees in advance
to such disclosure and it is done pursuant to a separate Confidential
Disclosure Agreement entered into by BUYER and SELLER which is part of
this Agreement by an Addendum hereto as Exhibit D.
21. PATENT AND SIMILAR INDEMNITY
Except as hereinafter limited, SELLER shall defend at its own expense
and indemnify BUYER from and against any liability (including
attorneys' fees and costs) arising out of any claim that any Product
and/or Software purchased hereunder infringes a valid patent or is a
violation of copyright, trade secret, or other proprietary rights of
third parties, provided that, BUYER shall promptly give SELLER timely
written notice thereof and reasonable cooperation, information and
assistance in connection therewith, and SELLER shall have sole control
and authority with respect to defense, settlement, or compromise
thereof. Should Products delivered hereunder become or, in SELLER's
opinion, be likely to become the subject of such a claim, SELLER may at
its option, either procure for BUYER the right to continue using such
Products, or replace or modify the Products so that they become
non-infringing.
***** Confidential treatment has been requested for the redacted portions. The
confidential redacted portions have been filed separately with the Securities
and Exchange Commission.
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CONFIDENTIAL TREATMENT
22. INDEMNIFICATION
SELLER shall defend, indemnify, and hold BUYER harmless from property
damage, personal injury or expense, including attorneys fees and costs,
incurred by any employee, agent, invitee or ***** of BUYER, or any
other person, regardless of how caused if arising out of the use or
possession of the Products and/or Software by BUYER or BUYER's
customers unless such loss, property damage, personal injury, or
expense, including attorneys fees, was caused solely by the gross
negligence or willful misconduct of BUYER, its employees, its
authorized agents or its customers.
23. PRODUCT CHANGES; DISCONTINUANCE
23.1 Product Changes - SELLER shall have certain rights, except as
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stated herein, to make changes to the Products. A "material
change" is defined as one which affects the Products'
specified performance, maintainability, operation, safety,
reliability, backward compatibility, interface, form, fit, or
function. A "minor change" is a change which would not be a
"material change". SELLER shall have full freedom to make
minor changes so long as such changes are not deemed to be
material changes.
Prior to instituting any change, whether minor or material,
SELLER will provide BUYER with six (6) months advance notice
of the proposed change. The notice shall include SELLER's
change control forms for both hardware, software and firmware.
In said notice, SELLER shall state whether it deems such
proposed change to be minor or material. As to "material
changes", SELLER shall work with BUYER to discuss the impact
of such change and shall assist BUYER in minimizing the impact
of such changes upon BUYER's customers. If it is determined
that sample parts or Products are required to assess such
impact, SELLER will provide at least two (2) sets of such
parts or Products at no charge for evaluation. BUYER will
either approve or reject, with just cause, all material
changes within thirty (30) business days after receipt of
written notification and/or required sample parts or Products
from SELLER. If change for Product reliability is needed on an
emergency basis, the change will be immediately sent to BUYER
who will make best efforts to respond within seventy-two (72)
hours.
The SELLER will supply BUYER with upgrade kits to incorporate
all field mandatory changes and retrofit all Products
delivered to BUYER's customers prior to the change at no
charge. Such upgrade kits may include hardware and/or
software.
In the event that BUYER rejects a material change, then BUYER
may either,
a) terminate any and all purchase orders or portions
thereof for Products and/or spare parts affected
by the change without cost or penalty, or
b) request SELLER to continue manufacture and support
the Products which are the subject of the proposed
change, as it is then being manufactured, for so long
as BUYER requires said Product and with no increase
in the purchase price except as provided by 3.1
23.2 Discontinuance - SELLER agrees to notify BUYER in writing not
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less than six (6) months in advance of the discontinuance of
any Product. SELLER agrees to support such discontinued
Products for a period of seven (7)
***** Confidential treatment has been requested for the redacted portions. The
confidential redacted portions have been filed separately with the Securities
and Exchange Commission.
CONFIDENTIAL TREATMENT
28
23.3 years from the date of notice of such discontinuance. For the
purposes of this paragraph "support" shall mean supplying
hardware, repair and replacement services, software systems,
and supplying associated documentation,
23.4 and all that is required to maintain the Products. The support
shall be furnished at SELLER's then current prices, less the
same discount, which BUYER was receiving prior to the
discontinuance.
24. PRODUCT ENHANCEMENT, UPGRADES AND NEW PRODUCTS
SELLER shall provide BUYER with non-confidential information regarding
future enhancements and upgrades to be made to the Products, as well as
information regarding releases of new Products. These enhancements,
upgrades, and new Products will, at BUYER's option and under mutually
agreed terms, be included in this Agreement as "Products", when
released. As soon as reasonably possible after each phase of testing of
enhancements, upgrades, or new Products, SELLER agrees to make such
enhancements, upgrades, or new Products and/or information regarding
the testing performed with such, available to BUYER for analysis and
review; the purpose of this provision is to allow BUYER to be aware of,
and familiar with, Product enhancements, upgrades, and new Products
prior to their release. SELLER agrees that prices for the upgrades,
enhancements, and new Products will be consistent with SELLER's OEM
pricing policies in this Agreement.
25. REPAIRS
25.1 Repairs - SELLER shall establish a repair service for Products
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in or out-of-warranty. SELLER will have the option to repair
or replace components of the returned Product. SELLER shall
ensure that the replacement or repair turnaround will not
exceed ten (10) working days from the time the Product is
received at SELLER's repair facility. Furthermore, in the
event that SELLER is consistently late in repairing or
replacing Products, SELLER shall be deemed in breach of this
Agreement, and in such event, BUYER shall give SELLER notice
and a thirty (30) day period of time in which to cure such
breach. SELLER agrees to notify BUYER immediately of any
replacement or repair which is likely to exceed the ten (10)
day turn-around time.
SELLER agrees to provide BUYER with a monthly report of all
repair and/or replacement activities on SELLER's products
received from BUYER or BUYER's customer for servicing.
SELLER agrees to make all necessary repairs to parts and/or
components of Products at the mandatory revision level or
equivalent for a period of seven (7) years after the last
delivery of such Products under this agreement or seven (7)
years from the date of discontinuance of any Products from the
product line of SELLER, whichever is later. SELLER agrees to
supply spare parts during the periods described above for
delivery within thirty (30) days of placement of the order by
BUYER; prices for such spare parts shall be at SELLER's then
current prices less the same discounts which BUYER was
receiving prior to the end of this Agreement.
In the event of unavailability of any spare part or suitable
substitute which is interchangeable and backward compatible,
SELLER shall make available to BUYER, SELLER's manufacturing
drawings and specifications for the parts, tools or test
equipment which are unavailable for purchase from SELLER or
its vendor. In addition, SELLER shall also grant to BUYER
and/or BUYER'S vendors, such manufacturing rights as SELLER
may have and be able to convey to be used by BUYER or BUYER's
vendors at no additional charge. Prior to the discontinuance
of production, BUYER and SELLER will work together to
establish a plan to support BUYER's installed base.
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CONFIDENTIAL TREATMENT
25.2 Emergency Repairs - During the warranty period, SELLER agrees to
-----------------
provide a twenty-four (24) hour turn around time for emergency out
of service conditions, at no additional cost to BUYER or BUYER'S
Customer.
For out-of-warranty emergency service, SELLER agrees to
provide expedited repair services at a mutually agreed cost.
26. PRIVATE LABELING/DOCUMENTATION
26.1 Private Labeling - The parties agree that Product may be
----------------
distributed under BUYER's private label. SELLER agrees to fill all
orders under this Agreement with unique "Larscom" labeling as
requested by BUYER, unless otherwise specified on the order.
Products designated with Larscom labeling shall only be supplied by
SELLER to BUYER or such third parties as BUYER may specifically
designate in writing.
SELLER agrees to affix any labels, numbering, or symbols to the
products, packaging, software, and documentation accompanying the
Products, as reasonably requested by BUYER. BUYER will provide the
art work and instructions as required by SELLER's manufacturer.
BUYER shall have the opportunity to approve the first faceplate
with affixed labeling.. BUYER agrees to pay SELLER upon the signing
of this Agreement, a one time private labeling charge of _____ for
each faceplate labeled. BUYER's purchase orders must specify that
products be so labeled.
26.2 Documentation - BUYER may edit or create documentation (i.e.,
-------------
manuals, data sheets, product brochures) by substituting the
"Larscom" name for that of SELLER, and may make any other changes
as necessary to indicate private labeling. SELLER will provide the
documentation to BUYER in suitable form for the editing as the
parties may reasonably agree. BUYER will supply SELLER with
sufficient quantities of such manuals to accommodate drop-ship
requirements. SELLER shall enclose one (1) set of manuals with each
system drop-shipped to BUYER's Customers.
27. CUSTOM FEATURES/FUNCTIONALITY
BUYER may request that SELLER develop additional features and/or functions
that will be unique to the private labeled products purchased by BUYER
under this Agreement where such features are not contemplated by SELLER for
inclusion in its standard product range. SELLER agrees that such custom
features and/or functionality will be available for distribution by BUYER
on an exclusive basis, and that said custom features and/or functionality
will not be integrated into SELLER's standard products, or the products
which SELLER sells, distributes, private labels or furnishes to any of its
other Customers. SELLER agrees that all interest, right and title in and to
such custom features and/or functionality shall remain in BUYER. Design
specifications, cost and development schedules for such custom
features/functionality will be negotiated by the parties on a case-by-case
basis.
28. COMPETITIVE RESTRICTION
SELLER agrees that, during the term of this Agreement and any extensions
thereof, it will not enter into any other Reseller or OEM agreement,
directly or indirectly, with any of BUYER's competitors, specifically: ADC,
Verilink, Quick Eagle, or Adtran.
29. PACKAGING
SELLER agrees to package all orders in plain boxes with clear tape, or as
otherwise reasonably instructed by BUYER. This will be done at no
additional cost.
30
CONFIDENTIAL TREATMENT
30. TERMINATION OF AGREEMENT
30.1 This Agreement may be terminated by either party, at anytime during
the initial and any renewal term hereof, upon the occurrence of
certain events of default by the other party. The following events
shall constitute an event of default by a party:
(a) if either party hereto applies for or consents to the
appointment of a receiver, trustee or liquidator of itself
or any of its property;
(b) if either party hereto makes a general assignment for the
benefit of creditors;
(c) if either party hereto is adjudicated as bankrupt or
insolvent;
(d) if either party hereto files a voluntary petition in
bankruptcy or a petition or answer seeking reorganization or
an arrangement with the creditors or seeks to take advantage
of any insolvency law or in an answer admits the material
allegations of a petition filed against it in any
bankruptcy, reorganization or insolvency proceeding, or an
order, judgment or decree is entered without the
application, approval or consent of the party, by any court
or governmental agency of competent jurisdiction, approving
a petition seeking reorganization of such party, or of all
or a substantial part of such party's assets, and such
order, judgment or decree continues unstayed and in effect
for any period of sixty (60) consecutive days;
(e) In the event of breach of any term or condition of this
Agreement, the non-defaulting party shall give written
notice to the defaulting party of the defaulting conditions
and of its intention to terminate the Agreement at some
future date not earlier than ninety (90) days from the
mailing date of said notice. Unless such default is
corrected by the defaulting party, as evidenced by the
concurrence of the non-defaulting party, prior to said
future date, the termination shall be effective as of said
future date.
30.2 BUYER or SELLER may elect to continue to make or receive shipments
of SELLER Products and/or Software despite a default by the other
party. Such election shall not constitute a waiver of the default
by BUYER or SELLER for any such default.
31. COOPERATION
SELLER agrees that it will fully cooperate with BUYER by executing and
preparing any and all documents necessary in order to allow BUYER to have
the Products included in the GSA schedule or equivalent government
schedules.
Further, in the event that BUYER becomes aware of and desires to
participate in a project which is out of the ordinary course of business
hereunder or one that has requirements which differ from usual application
of SELLER's Products, then SELLER agrees to, in a timely manner, provide
all reasonable and necessary information and assistance to BUYER which
would allow BUYER to adequately respond to the opportunity. Examples of
such projects include Requests for Proposals (RFP) and Requests for
Information (RFI) issued by Service Providers.
Where any United states government contract of BUYER's requires the
inclusion of certain provisions in subcontracts, BUYER and SELLER agree to
consult and reasonably cooperate relative to same.
32. TRADEMARKS, TRADE NAMES
SELLER recognizes the right of BUYER to the name "Larscom", and other BUYER
symbols, trademarks, trade names, logos and any variance thereof ("BUYER's
Marks") and SELLER agrees not to use BUYER's Marks without the express
written consent of BUYER. SELLER agrees not to raise or
31
CONFIDENTIAL TREATMENT
cause to be raised any question concerning the validity of BUYER's Marks,
and to notify BUYER promptly of any unauthorized use of BUYER's Marks by a
third party.
BUYER recognizes the right of G3M Corporation, to the name " Panthera", and
other SELLER symbols, trademarks, trade names, logos and any variance
thereof ("SELLER's Marks"). BUYER agrees not to use SELLER's marks without
the express written consent of SELLER.
33. FORCE MAJEURE
The obligations of the parties hereunder shall be suspended by the
occurrence of any unforeseeable event beyond the control of the parties
which renders performance impossible or onerous, such as acts of God, or,
riot, sabotage, fire, explosion, flood, casualty, inability to obtain
suitable and sufficient labor or materials, or law or regulation
restricting performance.
34. PRESS RELEASES
No press release or any other announcement will be made by either party
regarding this Agreement unless both parties agree to its content in
writing. SELLER will not, without the prior written consent of BUYER, in
any public matter refer to the BUYER'S purchase and resale of SELLER's
Products hereunder.
35 NO WAIVER OF CONDITIONS
Failure of either party to insist upon strict performance of any of the
terms and conditions hereunder, or the delay in exercising any of its
remedies, shall not constitute a waiver of such terms and conditions nor a
waiver of any default nor a waiver of any remedy.
36. COMPLIANCE WITH LAWS
SELLER shall comply with all applicable Federal, State and Local laws
including, but not limited to, those which specifically represent that any
product to be delivered hereunder will be produced and sold in compliance
with the requirements of the Fair Labor Standards Act of 1938, the
Occupational Safety & Health Act, Federal Communication Commissions Act and
the Consumer Products Safety Act, and all regulations issued pursuant to
such statutes, as amended and applicable.
37. EXPORT AUTHORIZATION AND TERRITORY
Unless otherwise agreed to by SELLER in writing, BUYER shall assume all
responsibility of obtaining any required export authorizations necessary to
export from the United States any Products purchased hereunder or technical
data or documents to be supplied hereunder by SELLER. BUYER shall not re-
export Products or technical data or documentation supplied by SELLER,
directly or through others, or the product of such data, to the prescribed
countries for which such prohibition exists pursuant to sections of the
U.S. Export Administration Regulations unless properly authorized by the
U.S. Government.
38. RELATIONSHIP OF THE PARTIES
The relationship of the parties under this Agreement shall be and shall at
all times remain one of independent contractor only. Neither party is an
employee, agent, or joint venture partner of the other party. Neither party
shall have the authority to assume or create obligation on behalf of the
other party with respect to the Products or otherwise, and shall not take
any action which has the effect of creating the appearance of its having
such authority.
39. TERMS AND CONDITIONS OF SALE
All purchase orders and acknowledgements for Products of SELLER shall be
subject to the terms and conditions of this Agreement. No other conditions
or modifications of terms and conditions of this
32
CONFIDENTIAL TREATMENT
Agreement shall be effective unless specifically agreed to in writing by an
authorized representative of both parties. Failure of either party to
object to provisions contained in any purchase order, acknowledgement or
other communication from the other party shall not be construed as a waiver
of these terms nor an acceptance of any such provision.
40. SEVERABILITY
If any one or more of the provisions, or portions of provisions of this
Agreement shall be deemed by any court of competent jurisdiction to be
invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions, or portion of provisions
contained herein, shall not in any way be affected or impaired thereby, so
long as the Agreement still expresses the intent of the parties. If the
intent of the parties cannot be preserved, this Agreement shall either be
renegotiated or rendered null and void.
41. NOTICES
All notices from one party to the other shall be in writing and either
personally delivered or sent via certified mail, postage prepaid and return
receipt requested to:
SELLER: G3M Corporation
0000 Xxxxxxx Xxxxx Xxxx #000
Xxx Xxxx, XX 00000
BUYER: Contracts Administration
Larscom Incorporated
0000 XxXxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
or to such persons or places as either party may designate from time to
time by notice hereunder. Such notices shall be deemed effective upon
personal delivery or deposit in the mails in accordance herewith.
42. AWARENESS
It is understood by SELLER that BUYER and its affiliates are designers,
manufacturers and distributors and are now in the market selling
telecommunications products. Further, it is understood that this Agreement
is for the purpose of supplementing BUYER's current product line and that
some time in the future BUYER may cease to purchase SELLER's Products and
offer only BUYER and/or associated companies' products, and/or other
company's products. SELLER understands that BUYER may in the future,
design, manufacture, and sell products equivalent or similar to those on
Exhibit "A" hereto. However, this agreement may not be considered a license
or permit to copy SELLER's proprietary intellectual property, except as
provided for by this agreement and in the normal course of business.
43. LIMITATION OF LIABILITY
NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR
CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS OR
REVENUE, LOSS OF USE OF THE EQUIPMENT OR ANY ASSOCIATED EQUIPMENT, OR COST
OF SUBSTITUTED FACILITIES, EQUIPMENT OR SERVICES WHICH ARISE OUT OF
PERFORMANCE OR FAILURE TO PERFORM ANY OBLIGATION CONTAINED WITHIN THIS
AGREEMENT, WHETHER THE CLAIM IS IN CONTRACT, TORT (INCLUDING NEGLIGENCE),
STRICT LIABILITY OR OTHERWISE EXCEPT AS PROVIDED UNDER ARTICLE 21 OR 22 OF
THIS AGREEMENT.
33
CONFIDENTIAL TREATMENT
44. HEADINGS
The section headings in this Agreement are for reference only and shall
have no substantive effect.
45. ASSIGNMENT
Neither party shall delegate any duties nor assign any rights or claims
under this Agreement, without prior written consent of the other party,
such consent not to be unreasonably withheld; and any such attempted
delegation or assignment without consent shall be of no effect.
46. DISPUTE RESOLUTION
Seller and Buyer will attempt to settle any claim or controversy through
consultation and negotiation in good faith and a spirit of mutual
cooperation. If those attempts fail, then the dispute will be mediated by a
mutually-acceptable mediator to be chosen by Seller and Buyer within 45
days after written notice by a party demanding mediation.
In the event that any dispute or disagreement under this Agreement, cannot
be resolved mutually between the parties, such dispute or disagreement
shall be submitted to arbitration in San Francisco, California under the
rules of the American Arbitration Association. Any award or decision made
in such arbitration process shall be final, binding upon the parties and
enforceable through application to any court of competent jurisdiction.
Each party shall bear its own costs in connection with such proceeding,
except that the prevailing party in any arbitration shall be reimbursed by
the other party for any reasonable expenses, including legal fees. No
arbitration award shall include punitive damages.
47. GOVERNING LAW
The laws of the State of California shall govern the construction and
performance of this Agreement.
48. ENTIRE AGREEMENT
This Agreement, together with material incorporated herein by reference,
sets forth the entire and only agreement between BUYER and SELLER
concerning the subject matter hereof. No provisions of this Agreement can
be modified except by a written amendment signed by both parties.
49. AUTHORITY
BUYER and SELLER each represent to the other that it has due and proper
authority to make and perform all duties and obligations set forth and
contemplated by this Agreement.
This Agreement shall be construed as containing, as part of it, the
following enclosures:
Exhibit A - Products / List Prices
Exhibit B - Discounts
Exhibit C - Product Specifications
Exhibit D - Confidentiality Agreement
Exhibit E Territory
34
CONFIDENTIAL TREATMENT
IN WITNESS WHEREOF, the parties have executed this Agreement on the dates
set forth below their respective signatures.
ACCEPTED BY:
G3M Corporation LARSCOM INCORPORATED
By: /s/ Xxxx Xxxxxx By: /s/ Xxxxxx Xxxxxxx
Name: Xxxx Xxxxxx Name: Xxxxxx Xxxxxxxx
Title: President Title: President & Chief Executive Officer
Date: 1/4/2001 Date: 1/4/2001
35
CONFIDENTIAL TREATMENT
EXHIBIT A
PRODUCTS / LIST PRICES
G3M Corporation Price List (FOB San Jose, CA)
-----------------------------------------------------------------------------------------
Panther Optical Matrix
Basic OC-48 Chassis with PM 50-HR
Power Module and Management *****
Module.
-------------------------------------------------------------------------------------------
Catalog PM 50-HR High Reliability Dual Feed Power *****
1291 Supply. Up to two Power modules may be used for
applications that require full redundancy. Each PM
power module may be driven with 48VDC or standard AC
voltages
[A single unit is included with the basic Panthera]
-------------------------------------------------------------------------------------------
PM-48VDC Power Module. Provides filtering, switching,
Catalog and SNMP monitoring for power management where -48VDC
1292 is provided. Can be used where the dual voltage *****
PM-50HR is not required
-------------------------------------------------------------------------------------------
Management Module
Allows configuration and SNMP management of the
system. Allows automatic configuration of the Panthera
Catalog modules.
1201 Console(RS-232) and LAN (10Base-T) Interfaces *****
[The Management Module is included with the basic
Panthera]
-------------------------------------------------------------------------------------------
DS3 Module
Catalog
1231 Supports Voice and Packet data *****
75 Ohm BNC
-------------------------------------------------------------------------------------------
36
-------------------------------------------------------------------------------------------
Quad 100Base-TX
Each module includes four separate
100Base-TX Ethernet connections that are *****
mapped to the STS payloads
4 RJ-45
-------------------------------------------------------------------------------------------
OC-3 mm Optical Module
Catalog Multi-Mode *****
1211 Dual SC connector
-------------------------------------------------------------------------------------------
OC-3 sm Optical Module
Catalog Single Mode *****
1212 Dual SC connector
-------------------------------------------------------------------------------------------
OC-12 mm Optical Module
Catalog Multi-Mode *****
1213 Dual SC connector
-------------------------------------------------------------------------------------------
OC-12 sm Optical Module
Catalog Single Mode *****
1214 Dual SC connector
-------------------------------------------------------------------------------------------
Catalog Quad T1 Interface Module *****
1232 4 RJ-45
-------------------------------------------------------------------------------------------
***** Confidential treatment has been requested for the redacted portions. The
confidential redacted portions have been filed separately with the Securities
and Exchange Commission.
37
CONFIDENTIAL TREATMENT
EXHIBIT B
DISCOUNTS
BUYER has the right under the terms of this agreement to purchase the products
shown in Exhibit A, together with such other products as may be added to BUYER's
catalog and price list, at a discount of ***** from BUYER's list prices.
***** Confidential treatment has been requested for the redacted portions. The
confidential redacted portions have been filed separately with the Securities
and Exchange Commission.
38
CONFIDENTIAL TREATMENT
EXHIBIT C
PRODUCT SPECIFICATIONS
39
CONFIDENTIAL TREATMENT
EXHIBIT D
CONFIDENTIALITY AGREEMENT
This Agreement is made and entered into effective this 1st day of September,
2000, (hereinafter "Effective date"), by and between Larscom Incorporated a
Delaware corporation, having its principal office at 0000 XxXxxxxxxx Xxxxx,
Xxxxxxxx, XX 00000 and G3M Corporation, a California corporation, having its
principal office at 0000 Xxxxxxx Xxxxx Xxxx., Xxx Xxxx, XX 00000.
Confidential Information in the form of trade secrets, plans, know-how,
corporate procedures and programs, specifications, software, prototypes, and/or
other business, technical, confidential and proprietary information may be
disclosed under this Agreement. A party to this Agreement who receives the
Confidential Information of another party to this Agreement agrees to not use or
disclose to others such Confidential Information subject to the terms and
conditions herein.
Permitted Use of Confidential Information: Until the period of the time that the
Confidential Information is held in confidence expires, a party who has received
Confidential Information of another party will use the information only as
permitted by the disclosing party.
Duty of Care: A recipient of Confidential Information shall protect its
confidentiality by using the same degree of care, but no less than reasonable
care, to prevent the unauthorized use, dissemination, or publication as the
recipient uses to protect its own confidential information of a like nature.
Accordingly, the recipient agrees not to reproduce, disclose to any third party,
or use for any purpose not authorized by the disclosing party, any Confidential
Information or materials which (a) are disclosed to the recipient as being
confidential, or (b) bearing the designation "PROPRIETARY AND CONFIDENTIAL
INFORMATION" or similar designation in writing.
Exceptions to the Duty of Confidentiality: This Agreement imposes no obligations
with respect to proprietary information which: a) was in recipient's possession
before receipt from the disclosure; b) is now or later becomes public knowledge
through no fault of the recipient; c) is known to the recipient prior to the
effective date of this Agreement as substantiated by documentation; d) is
rightfully received from a third party without any accompanying secrecy
obligation; e) is independently developed by the recipient; f) disclosing party
expressly gives receiving party written permission to disclose or otherwise use;
or g) is disclosed under operation of law.
No Additional Rights or Obligations: No party listed herein will acquire any
intellectual property rights of the other under the terms of this Agreement.
Neither party under this Agreement has an obligation to purchase any service or
item, nor does any party have the obligation or the right to make, use, or sell
products or processes incorporating Confidential Information disclosed under
this Agreement.
Term and Termination: Disclosure of Confidential Information under this
Agreement may take place for a period of two (2) years from the Effective Date.
The confidentiality obligations of the receiving party shall survive and
continue beyond the expiration of the Information disclosure period for three
(3) years from the date of disclosure.
General: No party intends that any partnership, joint venture, or agency be
created by this Agreement. No party will publicly announce or otherwise disclose
to parties not subject to this Agreement the existence of this Agreement, its
purpose, or any of its terms and condition. Any additional or modifications to
this Agreement must be made in writing and signed by the parties to be bound by
the additions or modifications. This Agreement is made under and will be
construed in accordance with the laws of the State of California, U.S.A. This
Agreement shall not be assigned by either party without the written consent of
the other.
40
CONFIDENTIAL TREATMENT
This Agreement is the entire agreement between the parties concerning the
Confidential Information and supersedes all prior oral and written agreements
between them. This Agreement inures to the benefit of and binds the parties and
their successors, assigns or other legal representatives. No waiver, alteration
or cancellation of any of the provisions of this Agreement shall be binding
unless made in writing and signed by the party to be bound.
The undersigned warrants that he or she has the authority to enter into this
Agreement on behalf of the person or entity identified above his or her
signature.
IN WITNESS HEREOF, the parties have executed this Agreement on the date first
written above.
Larscom Incorporated G3M Corporation
By:______________________________ By:______________________________
Print Name:______________________ Print Name:_______________________
Title:____________________________ Title:____________________________
41
CONFIDENTIAL TREATMENT
EXHIBIT E
TERRITORY
Countries not included in this ***** agreement are:
*****
***** Confidential treatment has been requested for the redacted portions. The
confidential redacted portions have been filed separately with the Securities
and Exchange Commission.
42
