EXHIBIT 10.13
AT&T
General Agreement for the Procurement of
Data Processing Equipment, Services and Supplies,
The License of Software, Between
Clarent Corporation
and
AT&T Corp.
Agreement made September 17, 1998, by and between Clarent Corporation,
("Supplier") a California corporation, having a place of business at 000
Xxxxxxxxxx Xxxxx, Xxxxxxx Xxxx, XX 00000 and AT&T Corp. ("AT&T Corp."), a New
York corporation, having a place of business at 00 Xxxxxxxxxxxx Xxxx. Xxxxxx,
Xxx Xxxxxx, to facilitate the anticipated future procurement of Data Processing
Equipment, the license of Software, and the purchase of Maintenance Services and
Materials.
On the basis of Supplier's representations and in reliance upon Supplier's
expertise in analyzing, designing and providing Internet Protocol (IP)
Telephony, (defined as the conversion of true speech to TCPIP packet technology
for transport and then back to true speech; hardware and/or software appropriate
for the routing and transport of such packets) transport, and related services
for Company's applications, the parties agree as follows:
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CONTENTS
ARTICLE DESCRIPTION PAGE
--------- ---------------------------------------------- -----
I. Definitions Applicable To The Entire Agreement 7-9
II. Provisions Applicable To Purchase
Of Equipment And Materials 10-15
III. Provisions Applicable To License
Of Software 16-23
IV. Provisions Applicable To Maintenance
Services For Equipment 24-30
V. General Provisions Applicable
To Entire Agreement 31-47
Signature Page 48
Attachment A Pricing 49-50
Attachment B Worldwide Clarent Care 51-60
Premium Support Offerings
Attachment C Escrow Agreement 61-72
Attachment D Acceptance Test Process 73-79
Attachment E Site Preparation Specifications 80-82
Attachment F Site Specific Term Sheet 83-89
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TABLE OF CONTENTS
ARTICLE DESCRIPTION PAGE
------- ----------- ----
I. Definitions Applicable To The Entire Agreement 7-9
II. Provisions Applicable To Purchase 10-15
Of Equipment And Materials
Contents Of Order 11
Definitions 11
Equipment Modification 12
Operating System Software 12
Price Adjustment 12
Return Of Equipment 12
Return Of Materials 12-13
Risk Of Loss 13
Sale 13
Site Preparation And Installation 13
Standard Of Performance And Acceptance Of
Equipment 14
Title 14
Training And Technical Service 15
Warranty 15
III. Provisions Applicable To License 16-23
Of Software
Contents of Order 17-18
Definitions 17
Enhancements And Maintenance 18
Intellectual Property Rights 18
License Fee 17
License Grant 17
Modifications 18-19
Redesignation Or Transfer Of Designated
Site Or Computer 19
Remote Access 19
Risk Of Loss 19
Software And Programming Aids 20
Source Programs And Technical Documentation 20
Standard Of Performance And
Acceptance Of Software 20-21
Training And Technical Service 21
Warranty 21-23
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ARTICLE DESCRIPTION PAGE
------- ----------- ----
IV. Provisions Applicable To Maintenance 24-30
Services For Equipment
Audit 26
Breakage, Disappearance and Condition 26-27
Contents of Maintenance Order 25-26
Contingency 27
Definitions 25
Eligibility for Maintenance Services 27
Engineering Changes 27
Identification Credentials 27-28
Maintenance Charge Changes 28
Maintenance Credit 28
Maintenance Facilities 28
Maintenance Services 25
Precautions 29
Technical Information, Software and Programming Aids 29
Title 29
Training and Technical Service 29
Type of Maintenance Services 29
Warranty 30
V. General Provisions Applicable 31-47
To Entire Agreement
Assignment and Subcontracting 34
Assignment by Company 33-34
CFC Packaging 34
Change 34-35
Choice of Law 35
Clause Headings 35
Clean-up 35
Compliance with Laws 35
Default 36
Effective Date and Duration of Agreement 33
Emergency 36
Entire Agreement 47
Force Majeure 36-37
Future Improvements and Benefits 37
Government Contract Provisions 37
Harmony 37
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ARTICLE DESCRIPTION PAGE
------- ----------- ----
Heavy Metals in Packaging 38
Identification 38
Impleader 38
Indemnity 38-39
Infringement 39
Insurance 40
Invoices and Terms of Payment 40-41
Mediation 41
Non-exclusive Market Rights 41-42
Notices 42
Order 33
Order Termination 43
Ordering Companies 33
Ozone Depleting Substances 43
Publicity 42
Quarterly Reports 43
Releases Void 43
Right of Entry and Plant Rules 43
Scope of Agreement 33
Severability 44
Shipping 44
Standards 44
Supplier's Information 45
Survival of Obligations 45
Taxes 45-46
Timely Performance 46
Tools and Equipment 46
Use of Information 46
Variation of Quantity 46
Waiver 46
Work Done by Others 47
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ARTICLE DESCRIPTION PAGE
------- ----------- ----
Signature Page 48
Attachment A Pricing 49-50
Attachment B Premium Support Offerings 51-60
Clarent Care(TM) Premium Support Offerings: 53
Support Schedule: 53
Installation and Implementation Offering: 53-54
Hardware: 53-54
Software: 54
Planning: 54
Pricing: 54-55
Premium Support Offerings 54-55
APPENDIX A: Definitions 56-57
APPENDIX B: Premium Support Schedule 00
XXXXXXXX X: Copy of the North American Support Contract 58
Definitions, Premium Support Plan Provisions 59-60
Attachment C Escrow Agreement 61-72
Attachment D Acceptance Test Process 73-79
Attachment E Site Preparation Specifications 80-82
Attachment F Site Specific Term Sheet 83-89
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Article I
Definitions Applicable To
The Entire Agreement
DEFINITIONS
The definitions of this Article, which are set forth below, apply to all the
Articles of this Agreement:
Acceptance Test Process or ATP means the process by which Supplier will
test the System(s)'compliance with the Specifications and is set out on
Attachment D.
Associated Entity means a corporation, partnership or venture, a majority
of whose voting stock or ownership interest is owned directly or indirectly
by AT&T Corp.
Company means AT&T Corp. or an Associated Entity which enters into or
issues an Order under this Agreement.
Customer means someone who obtains the System through AT&T and is a user of
that System under a License from the Supplier.
Equipment means Internet Protocol Telephony and similar equipment, and also
includes options, accessories and attachments for additional Supplier's
equipment. Equipment includes as a component thereof any Media fixedly
embedded therein in that it is not normally replaced except for maintenance
and repair. Equipment may include in its meaning, depending upon context,
a system or systems consisting of tangible Equipment and intangible
Software.
Identification means any copy or semblance of any trade name, trademark,
service xxxx, insignia, symbol, logo, or any other product, service, or
organization designation, or any specification or drawing of AT&T Corp. or
an Associated Entity, or evidence of inspection by or for any of them.
Indemnitees means Company, its Customers, officers, directors, employees
and representatives, others doing work under its immediate or ultimate
direction and control, its intermediaries in the distribution chain, and
its successors and assigns.
Information means any idea, data, program, technical, business or other
intangible information, however conveyed.
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Maintenance Services mean all services required to operate the Equipment
and Software in conformance with all Statements of Work and Specifications
in the contract and the mutually agreed to detection and correction of any
Equipment or Software errors.
Materials mean repair, maintenance or replacement parts for Equipment,
Media not fixedly embedded in Equipment, and tangible supplies of other
kinds which are for or associated with Equipment.
Media or Medium means any document, print, tape, disc, tool, semiconductor
chip or other tangible information-conveying article.
Order means Company's form of purchase order or contract used for the
purpose of ordering Equipment, Software, Services or Materials which is
accepted by Supplier.
Services mean (1)Maintenance Services and other services in support of
purchased Equipment and (2) the subject matter called for by any Order,
specifications, drawings, and samples.
Site means each Company location where Company requests pursuant to an
accepted Order for installation and use of System.
Site Preparation Specifications means the Supplier specifications of the
requirements for preparation of each Company Site in order to prepare the
Site for installation and use of System. The initial Site Preparation
Specifications are set out on Attachment E.
Site Specific Term Sheet means the Supplier Site Survey of the needs and
requirements of each Company Site and any Site specific terms and
conditions. The initial Site Specific Term Sheet Form is set out on
Attachment F.
Software means intangible Information provided in object code form
constituting one or more computer or apparatus programs and the
informational content of such programs, together with any documentation
supplied in conjunction with and supplementing such programs, the foregoing
being provided to Company by way of electronic transmission or by being
fixed in Media furnished to Company.
Specifications means the specifications for the Equipment and Software as
set forth in this Agreement and in the mutually agreed upon Order, or if
not so set forth, shall mean Supplier's current published specifications,
user documentation, and other information for the Equipment and Software as
of the date of the Order and any additional mutually agreed to
specifications furnished by Company. Any provisions
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contained in Supplier's specifications in conflict with the provisions of
this Agreement shall be deemed deleted.
Statement of Work means a mutually agreed upon Order which provides a
clear, concise and complete description of the work to be performed by
Supplier.
Supplier means the other party to this Agreement with Company to whom an
Order is issued under this Agreement.
System means the Clarent Gateway system, consisting of Software combined
with certain hardware.
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Article II
Provisions Applicable To Purchase of Equipment And Materials
CONTENTS
CLAUSE PAGE
------ ----
CONTENTS OF ORDER 11
DEFINITIONS 11
EQUIPMENT MODIFICATION 12
OPERATING SYSTEM SOFTWARE 12
PRICE ADJUSTMENT 12
RETURN OF EQUIPMENT 12
RETURN OF MATERIALS 12-13
RISK OF LOSS 13
SALE 13
SITE PREPARATION AND INSTALLATION 13
STANDARD OF PERFORMANCE AND ACCEPTANCE OF EQUIPMENT 14
TITLE 14
TRAINING AND TECHNICAL SERVICE 15
WARRANTY 15
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DEFINITIONS
The definitions of Article I apply to this Article. Also, the definitions set
forth below, apply to this Article:
Installation Date means the dates by which the Equipment or Materials which have
been delivered are to be installed and ready for use in accordance with ATP.
Sale means the Supplier shall sell its Equipment and Materials to Company upon
the provisions set forth in this Agreement and in accepted Orders placed by
Company pursuant to this Article.
CONTENTS OF ORDER
An Order for the purchase of Equipment or Materials shall be written on
Company's purchase order form and shall contain the following:
1. The incorporation by reference of this Agreement;
2. The incorporation by reference of the applicable functional performance
Specifications;
3. A complete list of the Equipment or Materials to be purchased specifying
quantity, type, model, feature description and purchase price to be paid
(net of purchase option credit if applicable) and the invoice address;
4. The location at which the Equipment is to be installed or the Materials
to be delivered and used including xxxxx, xxxxxx, xxxx and state;
5. The Installation Date; and
6. A complete list of the Services and associated costs, if any, such as,
but not limited to, training, if any required, and a schedule of their
performance;
7. A complete and signed, by Company, Site Specific Term Sheet for each
Site and System.
8. In the event of any conflict of terms, the terms of an accepted Order,
and of the Site Specific Term Sheet will prevail over the terms of this
Agreement
Ordered items shall be shipped complete on date(s) specified in an accepted
Order unless otherwise agreed to by Company.
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EQUIPMENT MODIFICATION
In the event that supplier cannot provide the requested modifications, Company
may substitute components or supplement the Equipment by making alterations or
installing attachments to modify the range or features that the Equipment
provides. Company shall notify Supplier in advance of its intent to modify, and
supplier shall grant a trade-in allowance against the purchase price of the new
items in accordance with applicable allowances in effect at the time of
modification. Should Company modify equipment without the consent of Supplier,
the Equipment warranty for that particular Equipment shall become void.
OPERATING SYSTEM SOFTWARE
Title to intellectual property rights in operating system software shall remain
in Supplier and/or its Licensor. For the life of the Equipment listed in the
Order for purchased Equipment, Supplier grants to Company and any subsequent
purchaser of the Equipment a nonexclusive license to use, and have used
therefor, Software on the Equipment on or for which it was delivered. Company
and any subsequent purchaser may copy the Software for use on such Equipment
with or for which it was delivered, and for archival purposes, but shall not
knowingly reproduce either the original operating system software or other of
the Software for distribution to other users. Company and any subsequent
purchaser may add to, delete from or modify the Software to extent that
modifications do not alter source code, in any manner, but no changes, however
extensive, shall alter Supplier's intellectual property rights to such delivered
Software. Intellectual property rights to any such modification or addition to
the Software shall remain in the entity which creates the modification or
addition.
PRICE ADJUSTMENT
If Supplier's published price for any Equipment or Materials is lower on the
delivery date for Materials or the Installation Date for Equipment than the
price stated in an Order, the price for the Equipment or Materials shall be
reduced to the published price.
RETURN OF EQUIPMENT
Whenever Equipment under warranty is shipped for repair or replacement purposes
from and then back to Company, Supplier shall furnish all labor and Materials
necessary for packing the Equipment at no charge to Company. Supplier shall
arrange for and bear all costs including, but not limited to, those of packing,
rigging, transportation and insurance. Supplier shall also bear all risk of
loss or damage from the time the Equipment is removed from Company's site until
the Equipment is returned to the site. If returned equipment is found not to be
in breach of warranty, Supplier's costs for packing, rigging, transportation and
insurance will be reimbursed by Company upon receipt of documentation
demonstrating such, and company's concurrence with such findings.
RETURN OF MATERIALS
Supplier shall accept for credit Materials returned under any of the following
circumstances:
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1. Company termination or cancellation of an Order for Supplier's Equipment or
exchange by Company of one Supplier machine for another Supplier machine
within thirty (30) days of the termination or cancellation, provided
Materials are not usable in other equipment within the location;
2. Supplier or Company error in the ordering or shipping process, provided the
Materials are returned by Company to Supplier within ninety (90) days of
receipt; or
3. Receipt of defective Materials or failure of Materials under the applicable
warranty.
Materials returned for credit or replacement must be in complete cartons and in
good resalable condition, except where the Materials are defective or fail under
the applicable warranty.
RISK OF LOSS
Supplier shall retain risk of loss and damage to the Equipment or Materials
prior to the passage of title pursuant to the Title clause unless caused by the
willful or negligent acts of Company or its employees. Company will promptly
notify Supplier of any damage incurred to Equipment.
SITE PREPARATION AND INSTALLATION
Supplier shall promptly furnish to Company detailed written site preparation
specifications to ensure that the Equipment to be installed will operate in an
efficient and environmentally safe manner. Company shall prepare the site at
its own expense and in accordance with the specifications furnished by Supplier
and Site Specific Term Sheet. Any alterations or modifications in site
preparation that are attributable to Supplier's incomplete or erroneous
specifications shall be made at Supplier's expense.
Supplier shall, per pricing agreement, ship and remote install the System
(unless on-site Installation has been ordered) ready for ATP Exhibit by the
Installation Date. Company shall (unless onsite installation has been ordered)
furnish all labor and materials necessary for unpacking, placement and
installation of the Equipment ready for remote install by Supplier on or before
the Installation Date, all in accordance with instructions of Supplier. If on-
site Installation has been ordered per pricing agreement, Supplier shall furnish
all labor and Materials necessary for unpacking, placement and installation of
the Equipment ready for ATP on or before the Installation Date. Not later than
the Installation Date, Supplier shall be ready to perform ATP and Company shall
provide a qualified person from Company to verify the ATP. Upon completion of
ATP, Supplier shall certify in writing to Company that the Equipment meets
Specifications. If the Equipment is certified to be ATP ready for use prior to
the day before the Installation Date, Company may elect to use the Equipment and
change the Installation Date accordingly. At any time prior to the date
indicated in an accepted Order for delivery of the Equipment, Company may, upon
written notice to Supplier, delay the Installation Date, but such delay shall
not exceed thirty (30) days.
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STANDARD OF PERFORMANCE AND ACCEPTANCE OF EQUIPMENT
1. The intent of this clause is to establish Company's standard of performance
which must be met before the Equipment is accepted by Company. Upon
certification by Supplier that the Equipment is ready for ATP, the ATP
period shall begin. Company shall promptly provide a qualified
representative of Company to verify the ATP with Supplier upon Supplier's
certification that the Equipment is ready for ATP. Supplier shall have
thirty (30) days from the start of ATP to certify that Equipment meets
Specifications in accordance with the ATP.
2. If the Equipment, operates in conformance with the Specifications in
accordance with ATP, it shall be deemed to have met Company's standard of
performance and shall be accepted by Company. Company's acceptance shall not
be unreasonably withheld. If the Equipment does not operate in substantial
conformance with the Specifications in accordance with the ATP within sixty
(60) days after Installation Date, Company shall have the right to notify
Supplier in writing and Supplier shall use reasonable commercial efforts to
make the Equipment substantially meet the Specifications in accordance with
the ATP within thirty (30) days after receipt of notice from Company.
Supplier will work with vigilance to address all substantial non conformance
with Specifications in accordance with the ATP. If Supplier fails to make
Equipment substantially comply with Specifications in accordance with ATP
within the second thirty (30) day period, Company shall promptly notify
Supplier in writing and may promptly return the Equipment to Supplier. Upon
such return, Company shall receive full refund of any payments made for such
Equipment and Company shall have no further obligation to make any payment
to Supplier for such Equipment.
3. If Supplier certifies that Equipment meets Specifications in accordance with
ATP and Company does not provide a qualified representative to verify that
the Equipment meets Specifications in accordance with ATP within ten (10)
business days of Supplier's certification, the Equipment will be deemed to
have been accepted.
4. Company shall maintain appropriate daily records to reflect operation of
the Equipment during the ATP period.
5. Upon successful completion of the ATP, the Equipment shall be accepted in
writing by Company.
TITLE
Company shall accept title to the Equipment after the Equipment satisfactorily
attains the standard of performance pursuant to the Standard of Performance and
Acceptance of Equipment clause. Upon receipt of payment, Supplier shall furnish
Company a xxxx of sale and all other documents requested by Company to enable it
to perfect unencumbered title to the Equipment. Title to Materials shall rest
in Company upon their acceptance which shall be deemed to occur upon receipt of
the Materials at Company's receiving dock unless otherwise specified by Company
before or promptly after such receipt.
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TRAINING AND TECHNICAL SERVICE
Supplier shall provide, per Pricing Attachment A, the assistance and advice, if
requested, necessary to assist in the use of the Equipment. Supplier shall
provide, at no additional charge, the training it normally provides without
charge to users of the Equipment.
WARRANTY
Supplier warrants to Company and its Customers that the Equipment and Materials
furnished shall be free from defects in, material and workmanship and shall
conform to and perform in accordance with the Specifications. These warranties
extend to the future performance of the Equipment and Materials and shall
continue for the longer of (a) one year after the date of acceptance of ATP, or
(b) a greater period if specified elsewhere in this Agreement or an Order.
Supplier also warrants to Company and its Customers that the Equipment and
Materials shall be new or remanufactured and that Service shall be performed in
a first class, workmanlike manner. In addition, if the Equipment or Materials
furnished contains one (1) or more manufacturers' warranties, Supplier hereby
assigns those warranties to Company and its Customers to the extent it has the
authority to do so. Equipment, Materials or Services not meeting the warranties
will, at Company's option, (a) be returned for or subject to, repair,
replacement, or reperformance by Supplier at no cost to Company or its customers
and with transportation costs and damage in transit borne by Supplier, or (b) be
subject to refund. If returned equipment is found not to be in breach of
warranty, Supplier's costs for packing, rigging, transportation and insurance
will be reimbursed by Company upon receipt of documentation demonstrating such
and Company's concurrence with such findings, which shall not be unreasonably
withheld.
Supplier shall not charge Company for any repair or maintenance of Equipment or
Materials covered by this warranty.
All warranties shall continue in full force and effect notwithstanding transfer
of title to the Equipment or Materials by Company, so long as Company, its
Customers or its Associated Entities shall remain the user of the Equipment or
Materials. All warranties shall also survive inspection, acceptance and
payment.
The warranty shall not apply and terminate if any form of the Software and/or
System shall have been subject to accident, abuse, misuse, not used in
accordance with Supplier's instructions as delineated in Supplier's
operations/user manual, misapplication, breach of License or modified by a party
not authorized by Supplier.
The warranty shall not apply and terminate if any hardware component of the
System is opened, altered, or repaired by a repair facility not authorized by
Supplier.
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Article III
Provisions Applicable to License of Software
CONTENTS
CLAUSE PAGE
------ ----
CONTENTS OF ORDER 17-18
DEFINITIONS 17
ENHANCEMENTS AND MAINTENANCE 18
INTELLECTUAL PROPERTY RIGHTS 18
LICENSE FEE 17
LICENSE GRANT 17
MODIFICATIONS 18-19
REDESIGNATION OR TRANSFER OF DESIGNATED SITE OR COMPUTER 19
REMOTE ACCESS 19
RISK OF LOSS 19
SOFTWARE AND PROGRAMMING AIDS 20
SOURCE PROGRAMS AND TECHNICAL DOCUMENTATION 20
STANDARD OF PERFORMANCE AND ACCEPTANCE OF SOFTWARE 20-21
TRAINING AND TECHNICAL SERVICE 21
WARRANTY 21-23
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DEFINITIONS
The definitions of Article I apply to this Article. Also, the definitions which
are set forth below apply to this Article:
Enhancements mean all Software changes which will be defined as:
a. Updates
b. Fixes/patches, and
c. Upgrades
Modifications mean Company additions to the Software, deletions from the
Software, or merges of the Software with one or more programs owned or licensed
by Company forming an updated and otherwise modified Software.
Specifications means the specifications for the Software as set forth in
Attachment to this Agreement or the mutually agreed upon Order, or if not so set
forth, shall mean Supplier's current applicable published. Any provisions
contained in Supplier's specifications not mutually agreed upon or set out in an
Order or Company's mutually agreed to specifications shall be deemed deleted.
Use means use by any individual having authorized access to the computer on
which the Software is operated.
LICENSE GRANT
Supplier hereby grants to Company, its Customer and any subsequent leasing
company, purchaser for lease and saleback of the Equipment an irrevocable
nonexclusive, worldwide, perpetual, without right to sublicense, license to Use
the Software on the Equipment for which it was ordered or other equipment as
authorized pursuant to the Equipment Modification Section of this Agreement.
However, if Supplier ceases to deliver the Equipment or cannot support the
Equipment delivered hereunder, Company has the right to use the Software on
other hardware platforms. Upon delivery to Company, all media shall become the
property of Company except that fixed in Equipment, title to which shall pass to
Company upon acceptance of the Equipment. Company agrees not to disassemble or
otherwise reverse engineer the Software for the purpose of deriving source code
therefrom.
CONTENTS OF ORDER
An Order for Software shall be written on Company's purchase order form and
shall contain the following:
1. The incorporation by reference of this Agreement;
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2. A complete list of the Software to be included in the license,
including a reference to and incorporation of the applicable Software
reference manuals;
3. The name or names of the manufacturer and model number or numbers of
the data processing equipment with which the Software shall be
compatible in accordance with Supplier's specifications;
4. The location or locations at which the Software is to be delivered and
invoiced;
5. The date or dates by which the Software shall be delivered;
and
6. Support services including technical Services and training.
7. Any other special provisions agreed upon by both parties.
8. A complete and signed, by Company, Site Specific Term Sheet for each
Site and System.
ENHANCEMENTS AND MAINTENANCE
Supplier shall promptly furnish to Company during the duration of the Order, at
an agreed upon charge, if any, all Software Enhancements, Maintenance Services
and telephone technical assistance made available by Supplier to any of its
customers and shall promptly provide to Company any revisions to the basic
Software items defined in the SOFTWARE AND PROGRAMMING AIDS clause to reflect
the Enhancements. All Enhancements shall be considered Software subject to the
provisions of the Order. Company may incorporate the Enhancements into the
Software or continue using the previous version of the Software, at Company's
option in accordance with this Agreement. Company may, at any time and at its
discretion, discontinue maintenance of the Software. Supplier shall only be
obligated to support compatibility of one backward upgrade version of Software.
INTELLECTUAL PROPERTY RIGHTS
Title to the Software and to intellectual property rights therein shall remain
in Supplier or Supplier's licensor, as applicable. Company shall have the right
to make a reasonable number of copies of the Software directly related to the
needs of the business of Company for backup, archival and developmental test lab
purposes for Use. Company however, shall not knowingly reproduce copies of the
Software for the purpose of supplying it to others except individuals authorized
herein.
MODIFICATIONS
Company may make Modifications to the Software. Company shall have all right,
title and interest to any Modifications and resulting derivative works and the
intellectual property rights in such Modifications or works except as set out
differently in the Order. Moreover, nothing
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contained in this Agreement or an Order shall limit Company's right to reproduce
and Use the modified Software in as many copies as Company, in its sole
discretion, deems appropriate. However, any portion or aspect of the modified
Software which is licensed from Supplier under this Agreement or an Order shall
continue to be subject to all the provisions of this Agreement and the Order,
and nothing contained herein grants to Company any rights to Use the Software
other than as recited in this Agreement or the Order.
REDESIGNATION OR TRANSFER OF DESIGNATED SITE OR COMPUTER
If the Order specifies that Company's Use of the Software is limited to a
designated site or a designated computer within Company or affiliate, the
provisions of this clause shall apply. For purposes of this clause, site shall
include computer, as applicable to the Order. A redesignation shall refer to a
change of site and shall include the movement of Software to upgraded equipment.
A transfer shall refer to a temporary change of site of the Software.Without an
additional charge or fee or any requirement for any additional license, Company
may:
1. Redesignate the site at which the Software will be used and shall
notify Supplier of the new site and the effective date of the
redesignation; and
2. Concurrently operate the Software at another site for a period not to
exceed three (3) months for the purpose of redesignating the assigned
using site.
The license granted under the Order for a designated site may be transferred
with written notice to Supplier but at no additional charge or fee to Company:
(a) to a backup site if the computer at the designated site is inoperative due
to malfunction, due to performance of preventive or remedial maintenance, due to
engineering changes or due to changes in features or model, until the computer
is restored to operative status and processing of the data already entered in
the computer at the backup site has been completed or (b) to one other site for
assembly or compilation of the Software if the specifications of the computer at
the designated site are such that the Software cannot be assembled or compiled
on the computer.
REMOTE ACCESS
Company shall have the right, at no additional charge or fee, to have the
Software used at any other location by means of remote electronic access.
RISK OF LOSS
If any Software fixed in Media is lost, damaged or made invalid during shipment,
Supplier will promptly replace the Software and Media therefor at no additional
charge to Company. If any Software is lost or damaged while in the possession
of Company, Supplier will promptly replace the Software at the established
charge for the associated Media unless such is provided by Company. Company
will notify Supplier of any damage incurred to Software.
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SOFTWARE AND PROGRAMMING AIDS
On the delivery date pursuant to an Order that includes any or all of the items
set out below, Supplier shall furnish to Company, at no additional charge or
fee, at least the following basic items:
1. Object code (the fully compiled or assembled series of instructions,
written in machine language, ready to be loaded into the computer, that
guides the operation of the computer) stored in a Medium compatible with
the Equipment described in the Order;
2. Program implementation and user instructions and required procedures in the
Order;
3. The Software Specifications, as well as the required machine configuration
in the Order;
4. Sample data output, such as printouts or typical screen displays, and any
other programs, routines, subroutines, utility or service programs,
normally provided to users or Customers, descriptive Specifications and ATP
or related material Supplier may have which is necessary or useful for the
full implementation and Use of the Software and which Supplier normally
furnishes to users of the Software without additional charge or fee in the
Order.
5. Source program (the computer program expressed in a source language) if
licensed by Supplier as part of the Software ordered hereunder in the
Order.
SOURCE PROGRAMS AND TECHNICAL DOCUMENTATION
Supplier shall, at Company's request, enter into an Escrow Agreement
substantially the same in form and substance to the form attached (Attachment C)
to this Agreement to safeguard Supplier's Software Specifications and source
program at any time during the duration of this Agreement. Both parties shall
negotiate in good faith such Escrow Agreement
STANDARD OF PERFORMANCE AND ACCEPTANCE OF SOFTWARE
1. Site Preparation shall be completed in accordance with Article I, Section
"SITE PREPARATION AND INSTALLATION."
2. The intent of this clause is to establish Company's standard of performance
which must be met before the Software is accepted by Company. Upon
certification by Supplier that the Software is ready for ATP, the ATP period
shall begin. Company shall promptly provide a qualified representative of
Company to verify the ATP with Supplier upon Supplier's certification that the
Software is ready for ATP. Supplier shall have thirty (30) days to certify that
Software meets Specifications in accordance with ATP.
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3. If the Software, operates substantially in conformance with the
Specifications in accordance with ATP, it shall be deemed to have met Company's
standard of performance and be accepted by Company. Acceptance shall not be
unreasonably withheld. If the Software does not operate in substantial
conformance with the Specifications in accordance the ATP within sixty (60) days
after Installation Date, Company shall have the right to notify Supplier in
writing and Supplier shall use reasonable commercial efforts to make Software
meet the Specifications in accordance with the ATP within thirty (30) days after
receipt of notice from Company. Supplier will work with vigilance to address
all substantial non conformance with Specifications in accordance with ATP. If
Supplier fails to make Software substantially comply with Specifications in
accordance with ATP within the second thirty (30) day period, Company shall
promptly notify Supplier and may promptly return the Software to Supplier. Upon
such return, Company shall receive full refund of any payments made for such
Software and Company shall have no further obligation to make any payment to
Supplier for such Software.
4. If Supplier certifies that Software meets ATP and Company does not provide a
qualified representative to verify that the Software meets ATP within ten (10)
business days of Supplier's certification, the Software will be deemed to have
been accepted.
5. Company shall maintain appropriate daily records to reflect operation of the
Software during the ATP period.
6. Upon successful completion of the ATP, the Software shall be accepted in
writing by Company.
TRAINING AND TECHNICAL SERVICE
Supplier shall provide per pricing attachment assistance and advice, as may be
reasonably requested by Company necessary to assist in the Use of the Software.
Supplier will provide to Company at no charge any training as it normally
provides without charge to users of the Software.
WARRANTY
Supplier warrants to Company and its Customers all of the following:
1. The Software will be free from significant errors which cause it not
to substantially comply with Specifications, and will conform to and
substantially perform in accordance with the Specifications. The
Media conveying the Software will be free from material defects in
material and workmanship. The Software will be compatible with and
may be used in conjunction with other Software as described in the
Specifications. If an accepted Order states that the Software is to
be used in conjunction with certain data processing equipment, the
Software shall be compatible with that Equipment. The foregoing
21
warranties extend to the future performance of the Software and shall
continue for the longer of (a) the warranty period applicable to
sublicense by Company to its Customers of the Software or of products
which incorporate the Software, not to exceed twelve (12) months after
the Software is accepted by Company, (b) twelve (12) months after the
Software is accepted by Company, or (c) a greater period specified
elsewhere in this Agreement or an accepted Order.
2. Services will be performed in a first-class, workmanlike manner.
3. There are no copy protection or similar mechanisms within the Software
which will, either now or in the future, interfere with the grants
made in this Agreement or an Order.
4. As to Software for which Supplier does not solely own all intellectual
property rights, Supplier has full right, power and authority to
license the Software to Company and its customers as provided in this
Agreement or an Order.
5. If the Software, or any portion thereof, fails to substantially meet
Specifications or becomes unusable, totally, or in any material
respect during the applicable warranty period, Supplier will use
commercially reasonable efforts to correct significant errors, defects
and nonconformities and restore the Software to conforming condition
free of significant errors that cause Software to not substantially
meet Specifications, at no cost to Company or its Customers.
6. Supplier certifies and warrants that its Software does not contain any
malicious code, program, or other internal component. of the nature of
a computer virus, computer worm, computer time bomb, or similar
component), which could damage, destroy, or alter Software, firmware,
or hardware or which could, in any manner, reveal, damage, destroy, or
alter any data or other information accessed through or processed by
the Software in any manner. Supplier shall immediately advise
Company, in writing, upon reasonable suspicion or actual knowledge
that the Software provided under this Agreement or an accepted Order
may result in the harm described above. Supplier shall indemnify and
hold Company and its customers harmless from any damage resulting from
the harm described above.
7. Supplier warrants that Software will record, store, process and
present calendar dates falling on or after January 1, 2000, in the
same manner and with the same functionality as it performed before
January 1, 2000. This maintenance will be considered part of and
covered under the maintenance provisions of the Agreement at no
additional charge to Company.
8. All warranties shall survive inspection, acceptance and payment.
22
The warranty shall not apply and terminate if any form of the Software and/or
System shall have been subject to accident, abuse, misuse, not used in
accordance with Supplier's instructions as delineated in Supplier's
operations/user manual, misapplication, breach of License or modified by a party
not authorized by Supplier.
The warranty shall not apply and terminate if any hardware component of the
System is opened, altered, or repaired by a repair facility not authorized by
Supplier.
23
Article IV
Provisions Applicable To Maintenance Services for Equipment
CONTENTS
CLAUSE PAGE
------ ----
DEFINITIONS 25
MAINTENANCE SERVICES 25
CONTENTS OF MAINTENANCE ORDER 25-26
AUDIT 26
BREAKAGE, DISAPPEARANCE AND CONDITION 26-27
CONTINGENCY 27
ELIGIBILITY FOR MAINTENANCE SERVICES 27
ENGINEERING CHANGES 27
IDENTIFICATION CREDENTIALS 27-28
MAINTENANCE CHARGE CHANGES 28
MAINTENANCE CREDIT 28
MAINTENANCE FACILITIES 28
TYPE OF MAINTENANCE SERVICES 29
PRECAUTIONS 29
TECHNICAL INFORMATION, SOFTWARE AND PROGRAMMING AIDS 29
TITLE 29
TRAND TECHNICAL SERVICE 29
WARRANTY 30
24
DEFINITIONS
The definitions of Article I apply to this Article. Also, the definitions which
are set forth below apply to this Article:
Maintenance Order means an order for Maintenance Services written on Company's
purchase order form.
Maintenance Services includes all Services in accordance with Supplier's Support
Program as set forth in Attachment B including what is defined as Supplier
Premium Support.
MAINTENANCE SERVICES
Supplier shall provide all Maintenance Services required by this Agreement upon
the provisions set forth in this Agreement and in accepted Orders placed by
Company pursuant to this Article for Maintenance Services as set out on
Attachment B. At any time, Company may terminate individual accepted Orders for
Maintenance, at no charge, pursuant to the Order Termination clause of Article V
of this Agreement, provided Company gives at least thirty (30) days prior
written notice to Supplier. If the charges for a terminated Order were paid
annually in advance, Supplier shall promptly refund to Company the unused
prorata portion of the charges.
In the event Supplier sets up specific service centers or locations specifically
for Company per an accepted Order, Company may cancel that specific accepted
Order with thirty (30) days prior written notice but will be liable to Supplier
for three (3) months' additional maintenance fees for the Sites affected.
In the event any Software, Equipment or System is modified by Company without
the consent of Supplier, ("Modified System") any Maintenance Services relating
to that Modified System or Systems affected by it, shall be cancelable by
Supplier upon written notice to Company or, at Supplier's option, the prices for
such Maintenance Services may be changed by Supplier upon written notice to
Company.
CONTENTS OF MAINTENANCE ORDER
A Maintenance Order shall contain the following:
1. The incorporation by reference of this Agreement;
2. A complete list of Equipment to be maintained specifying quantity and
type, description of Maintenance Services, duration of Order, monthly,
quarterly or annual maintenance charges for each item of Equipment,
total monthly maintenance charges payable by Company and invoice
address;
3. The location at which the Equipment is to be installed and used,
including xxxxx, xxxxxx, xxxx and state;
25
4. Designation of a point of contact from whom Supplier's maintenance
representative shall receive notification of Equipment becoming
inoperative;
5. Company's observed holidays; and
6. Any other special terms agreed upon by both parties.
7. A complete and signed, by Company, Site Specific Term Form for each
Site and System.
AUDIT
With the exception of the fixed basic monthly, quarterly or annual maintenance
charge set forth in this Agreement, Supplier shall maintain complete, clear and
accurate records of (1) all hours of direct labor employees engaged in Services
for which payment under this Agreement is to be computed on the basis of actual
hours worked, at a fixed rate per hour or other unit of time specified in this
Agreement and (2) billable costs payable by Company under this Agreement
including a physical inventory, if applicable. These records shall be
maintained in accordance with generally accepted accounting principles so they
may be readily audited and shall be held until costs have been finally
determined under this Agreement and payment or final adjustment of payment, as
the case may be, has been made. Supplier shall permit Company or Company's
representative to examine and audit these records and all supporting records at
all reasonable times. Audits shall be made not later than one (1) calendar
year after the expiration or termination of an accepted Order, and the
correctness of Supplier's billing hereunder shall be determined from the results
of that audit. In making arrangements with a vendor for the furnishing of
labor, material, or other items for which Company will be charged separately
from the fixed basic monthly maintenance charges as set forth in this Agreement,
Supplier shall require its vendor to keep separate records, and make separate
invoices, covering only what is so supplied, so that no part of the records or
invoices shall apply to jobs not covered by this Agreement.
In making payments to a vendor for labor, material, or other items for which
Company will be charged separately from the fixed basic monthly maintenance
charges as set forth in this Agreement, Supplier shall show its vendor's invoice
number and date on Supplier's payment advice, and no part of that payment shall
apply to other jobs not covered by this Agreement.
BREAKAGE, DISAPPEARANCE AND CONDITION
Supplier shall take whatever precautions Supplier deems necessary or desirable
(which do not violate Company's plant rules or cause inconvenience or delay to
Company) regarding tools, equipment, and Materials, whether or not owned by
Supplier, which Supplier causes to be brought to Company's premises. Company
shall have no responsibility for their care,
26
safekeeping, or operating condition. Company shall not bear any cost or expense
associated with their breakage or disappearance unless resulting from Company's
negligence.
CONTINGENCY
If Supplier fails to perform the Maintenance Services and Company has given
Supplier written notice of forty-eight (48) hours to cure the problem, Company
may arrange for the performance of the Maintenance Services by another party.
Supplier shall be responsible for all expenses incurred by Company and capped at
20% above Supplier's own fees for the same services.
ELIGIBILITY FOR MAINTENANCE SERVICES
Equipment shall automatically be eligible for Supplier Premium Support
Maintenance Services provided it shall have been under Supplier Premium Support
Maintenance Service or warranty by Supplier on the date of commencement of
Supplier Premium Support Maintenance Services. Any other Equipment off service
for 90 (ninety) days or more shall be inspected by Supplier at no charge to
determine whether it is in good working order and can be maintained in that
condition. Supplier shall notify Company in writing about the eligibility of
the Equipment. If the Equipment is not eligible, but can be made eligible,
Company may, at its expense, make or have made those changes required to upgrade
the Equipment to eligibility status with the Supplier.
ENGINEERING CHANGES
All engineering changes which Supplier provides to its customers at no
additional charge will also be provided to Company at no additional charge.
Mandatory safety changes shall also be made at no additional charge. If Company
refuses to allow Supplier to make mandatory safety changes, or Company fails to
implement mandatory safety changes, Company will release Supplier from the
indemnity associated with consequences of failure to implement safety changes,
as long as said mandatory safety changes are provided free of charge and do not
negatively impact the features and functionality of the System, or cause it not
to perform in accordance with Specifications.
IDENTIFICATION CREDENTIALS
Company may, at its discretion, require Supplier's employees and subcontractors
to exhibit identification credentials, which Company may issue, in order to
gain access to Company's premises for the performance of the Services. If for
any reason, any of Supplier's employees or subcontractors are no longer
performing Services, Supplier shall immediately inform Company's Representative
in the speediest manner possible. Notification shall be followed by the prompt
delivery to Company's Representative of the identification credentials involved
or a written statement of the reasons why the identification credentials cannot
be returned. Supplier
27
shall be liable for any damage or loss sustained by Company if the
identification credentials are not returned to Company.
MAINTENANCE CHARGE CHANGES
If during the duration of this Agreement, Supplier's commercial rates for
maintenance service comparable to the Maintenance Services are reduced below the
maintenance charges set forth in this Agreement, the maintenance charges to
Company shall be reduced to be at least as low as such commercial rates. Such
reduction under this Agreement shall be effective on the date Supplier so
reduces such commercial rates.
MAINTENANCE CREDIT
If Equipment fails to operate as provided in its Specifications, Company shall
notify Supplier, either orally or in writing, of the failure. Supplier shall act
in Accordance with its Maintenance Agreement and if the Equipment is under a
Supplier Maintenance Agreement in accordance with Attachment B and inoperative,
other than through the fault or negligence of Company, for a continuous period
of twenty-four (24) hours or longer from the time of Company's notice, Company
shall be entitled to credit against the maintenance charges computed as follows:
for each hour during which the Equipment is inoperative, the credit shall be
one, two hundred-fortieth (1/240) of the monthly maintenance charges for the
Equipment; provided, however, the credit shall in no event exceed one-thirtieth
(1/30) of the monthly maintenance charges for the Equipment for any calendar
day nor the monthly maintenance charge for the Equipment for any month. Company
shall have the option of either (1) extending the duration of the Order by
applying the credit against the maintenance charges going beyond the duration of
the Order or (2) reducing the maintenance charges during the duration of the
Order. Company shall, in addition, be entitled to a credit against the charges
for the time any office systems equipment item, regardless of supplier, is
rendered inoperative and made not useable as a result of the inoperativeness of
the Equipment. Supplier only warrants network uptime when N+1 configurations
are ordered with the System, and redundant account manager is deployed on
redundant or fault tolerant platforms. If Company chooses not to accept
Supplier's recommended redundant practices for any System or Site, Supplier will
not be liable for maintenance credit.
MAINTENANCE FACILITIES
Company shall provide Supplier with adequate storage space for spare parts and
adequate working space, including heat, light, ventilation, electric current and
outlets for use by Supplier's maintenance personnel. These facilities shall be
within a reasonable distance of the Equipment to be serviced and shall be
provided at no charge to Supplier. Company shall not be responsible for any
damage to Supplier's Equipment or Materials stored on Company's premises unless
the damage results from Company's negligence.
28
TYPE OF MAINTENANCE SERVICES
Supplier shall recommend, but Company may designate in an Order, the type of
Maintenance Services for each item of Equipment. Supplier shall provide Company
Maintenance Services in accordance with Attachment B.
Maintenance Services provided under this Agreement may be limited to specific
geographic areas, and Supplier reserves the right to impose additional mutually
agreed upon charges for travel outside Supplier's normal service areas.
Per Call Service - Supplier shall provide Maintenance Services requested by
----------------
Company in addition to Supplier Premium Support Maintenance Services and
performed at Supplier's then standard rates or those as may be agreed upon by
Supplier and Company ("Per Call Service").
PRECAUTIONS
Supplier shall take care in all operations to safeguard people as well as
property and not to interfere with or curtail Company or customer operations at
the Services site.
TECHNICAL INFORMATION, SOFTWARE AND PROGRAMMING AIDS
Supplier shall furnish to Company on the agreed-upon delivery date without
additional charge any technical information, programs, routines, subroutines,
documentation, or related material it has or may develop or modify, necessary
for the general use or maintenance of Equipment under Maintenance Service, which
are normally so furnished to maintenance customers.
TITLE
Title to replacement and repair parts and components shall vest in Company upon
installation and payment on Equipment owned by Company. Any parts replaced
shall become the property of Supplier. Title to enhancements and modifications
and to intellectual property rights therein (other than those originating as a
result of development Services funded by Company) shall remain in Supplier.
Title to updates and modifications originating as a result of development
Services funded by Company and to intellectual property rights therein, shall
vest in Company upon origination or development. Ownership of modifications
requested by and or funded by Company will be negotiated on a case by case
basis.
TRAINING AND TECHNICAL SERVICE
Supplier shall provide, without additional charge to Company, the training and
assistance as it normally provides without charge to maintenance customers under
the applicable maintenance agreement (see Attachment B).
29
WARRANTY
Supplier warrants to Company and its customers that replacement and repair parts
and components furnished under this Agreement or an Order shall be new, or
refurbished so as to perform as new, free from defects in design, material and
workmanship and shall conform to and perform in accordance with the
Specifications. These warranties extend to the future performance of the parts
and components and shall continue for the longer of (a) one (1) year from the
date of Company's acceptance of their installation, or (b) a greater period as
may be specified elsewhere in the Maintenance Order. Supplier further warrants
to Company that the Maintenance Services shall be performed with promptness and
diligence, in a first-class, workmanlike manner in accordance with Supplier's
Premium Support Maintenance Agreement and Specifications and to Company's
satisfaction and that the Equipment shall function in good operating condition
during the duration of the Maintenance Order. In addition, if the parts or
components bear one (1) or more manufacturers' warranties, Supplier hereby
assigns those warranties to Company to the extent it has the authority to do so.
All warranties shall survive inspection, acceptance and payment.
Equipment, parts, components or Maintenance Services not meeting the warranties
will, at Company's option, (a) be returned for or subject to repair, replacement
or reperformance by Supplier at no cost to Company or its Customers or (b) be
subject to refund.
Whenever Equipment, repair parts or components under warranty are shipped for
repair or replacement purposes, Supplier shall bear all costs, including but not
limited to, costs of packing, rigging, transportation and insurance. Supplier
shall also bear all risk of loss or damage from the time the Equipment, repair
parts or components are removed from Company's site until the Equipment, repair
parts or components are returned to that site and installed by Supplier. If
returned Equipment, repair parts or components is found not to be in breach of
warranty, Supplier's costs for packing, rigging, transportation and insurance
will be reimbursed by Company upon receipt of documentation demonstrating such
and Company's concurrence with such findings, which shall not be unreasonably
withheld and risk of loss shall transfer to Company upon delivery of the
Equipment, parts or components to the carrier by Supplier.
The warranty shall not apply and terminate if any form of the Equipment, parts
or components shall have been subject to accident, abuse, misuse, not used in
accordance with Supplier's instructions as delineated in Supplier's
operations/user manual, misapplication, breach of License or modified by a party
not authorized by Supplier.
The warranty shall not apply and terminate if any hardware component of the
System is opened, altered, or repaired by Company, Customer or a repair facility
not authorized by Supplier.
30
Article V
General Provisions Applicable To Entire Agreement
CONTENTS
CLAUSE PAGE
------ ----
Assignment and Subcontracting 34
Assignment by Company 33-34
CFC Packaging 34
Change 34-35
Choice of Law 35
Clause Headings 35
Clean-up 35
Compliance with Laws 35
Default 36
Effective Date and Duration of Agreement 33
Emergency 36
Entire Agreement 47
Force Majeure 36-37
Future Improvements and Benefits 37
Government Contract Provisions 37
Harmony 37
Heavy Metals in Packaging 38
Identification 38
Impleader 38
Indemnity 38-39
Infringement 39
Insurance 40
Invoices and Terms of Payment 40-41
Mediation 41
Non-exclusive Market Rights 41-42
Notices 42
Order 33
Order Termination 43
Ordering Companies 33
Ozone Depleting Substances 43
Publicity 42
Quarterly Reports 43
Releases Void 43
31
CLAUSE PAGE
------ ----
Right of Entry and Plant Rules 43
Scope of Agreement 33
Severability 44
Shipping 44
Standards 44
Supplier's Information 45
Survival of Obligations 45
Taxes 45-46
Timely Performance 46
Tools and Equipment 46
Use of Information 46
Variation of Quantity 46
Waiver 46
Work Done by Others 47
32
ORDERING COMPANIES
Company may order under this Agreement. Also, those additional Associated
Entities, both U.S. and foreign, designated in writing by AT&T Corp. may order
under this Agreement.
Any Order issued under this Agreement shall be a contractual relationship
between the ordering Company and Supplier, and Supplier shall look only to the
ordering Company for performance of Company's obligations under such an Order.
SCOPE OF AGREEMENT
This Agreement is applicable to the procurement by Company from Supplier of
Equipment, Software, intellectual property rights, Services, and Materials.
EFFECTIVE DATE AND DURATION OF AGREEMENT
This Agreement shall become effective as of the date set forth above and shall
continue in effect for a period of one (1) year, renewable by AT&T Corp.
annually on the anniversary of contract execution, and thereafter until
terminated by either Supplier or AT&T Corp. upon thirty (30) days' prior written
notice to the other party. The amendment or termination of this Agreement shall
not affect the obligations of Company or Supplier under any then existing Order
issued under this Agreement, but the Order shall continue in effect as though
this Agreement had not been amended or terminated, as the case may be, and were
still in effect with respect to the Order.
ORDER
Each Order shall reference this Agreement thereby incorporating the provisions
of this Agreement in the Order. If notice of rejection of an Order is not
received by Company within twenty (20) days from the date of receipt of an Order
by Supplier, the Order shall be deemed to have been accepted by Supplier.
Supplier shall provide Company with a written acknowledgement of the receipt of
an Order.
ASSIGNMENT BY COMPANY
AT&T Corp. shall have the right to assign this Agreement or an Order and to
assign its rights and delegate its duties under this Agreement or an Order
either in whole or in part at any time and without Supplier's consent to (i) any
present or future Associated Entity of AT&T Corp., (ii) the Customer(s) (who is
not a competitor of Supplier or has an adverse claim with Supplier), successors
and assigns of AT&T Corp. or its present or future Associated Entities, or (iii)
any other entity resulting from the sale, reorganization or other transfer of
all or part of the assets of AT&T Corp. or any Associated Entity. Company shall
give Supplier written notice of any assignment and delegation. Supplier may
terminate this Agreement should Company assign contract to a non-associated
entity one of whose primary interests is Internet
33
Protocol telephony. The assignment and delegation shall not affect any rights or
duties that Supplier or Company may then or thereafter have as to Equipment,
Software, Services or Materials ordered by Company prior to the effective date
of the assignment and delegation. Upon acceptance of the assignment and
delegation and assumption of the duties under this Agreement or an Order,
Company shall be released and discharged, to the extent of the assignment and
delegation, from all further duties under this Agreement or the Order as to
Equipment, Software, Services or Materials so assigned.
ASSIGNMENT AND SUBCONTRACTING
Supplier shall not assign any right or interest under this Agreement or an Order
(excepting monies due or to become due) nor delegate any Services or other
obligation to be performed or owed by Supplier under this Agreement without the
prior written consent of Company, which consent shall not be unreasonably
withheld. However, Supplier shall have the right to assign this Agreement and
all accepted Orders, without Company's consent, to any other entity resulting
from an IPO of Supplier, and further, Supplier shall have the right to assign
this Agreement and all accepted Orders, with Company's consent which shall not
be unreasonably withheld, to any other entity resulting from a change in
control, the sale, reorganization or other transfer of all or part of the assets
of Supplier to which this Agreement pertains. It is understood that Supplier
will sub-contract Maintenance Services under this Agreement. Any attempted
assignment, delegation, or subcontracting in contravention of the above
provisions shall be void and ineffective. Any assignment of monies shall be void
and ineffective if any of the following occur: (1) Company receives less than
thirty (30) days' prior written notice of the assignment from the Supplier or
(2) the assignment attempts (i) to impose upon Company obligations to the
assignee additional to the payment of monies, or (ii) to preclude Company from
dealing solely and directly with Supplier in all matters pertaining to this
Agreement including the negotiation of amendments or settlements of charges due.
All Services performed by Supplier's subcontractors at any tier shall be deemed
Services performed by Supplier.
CFC PACKAGING
Supplier warrants that all packaging materials furnished by Supplier under this
Agreement and all packaging associated with Equipment, Software, or Materials
furnished under this Agreement were not manufactured using and do not contain
chlorofluorocarbons. "Packaging" means all bags, wrappings, boxes, cartons and
any other packing materials used for packaging. Supplier agrees to indemnify,
defend (at Company's request), and hold harmless Indemnitees from and against
any losses, damages, claims, demands, suits, liabilities, fines, penalties, and
expenses (including reasonable attorneys' fees) that arise out of or result from
Company's good faith reliance upon this warranty.
CHANGE
Company may at any time during the progress of the Services request additions to
or alterations of or deductions or deviations from the Services ("Change")
called for by the
34
specifications. Supplier shall not be entitled to any compensation for Services
done pursuant to or in contemplation of a Change, unless made pursuant to a
written Change Order issued by Company. Within ten (10) business days after a
request for a Change, Supplier shall use commercially reasonable efforts to
submit a proposal to Company which includes any increases or decreases in
Supplier's costs or changes in the delivery or Services schedule necessitated by
the Change. Company shall, within ten (10) business days of receipt of the
proposal, either (i) accept the proposal, in which event Company shall issue a
written Change Order directing Supplier to perform the Change or (ii) advise
Supplier not to perform the Change, in which event Supplier shall proceed with
the original Services.
CHOICE OF LAW
The construction, interpretation and performance of this Agreement and all
transactions under it shall be governed by the laws of the State of New York,
excluding its choice of law rules and excluding the Convention for the
International Sale of Goods. The provisions of the New York Uniform Commercial
Code apply to this Agreement and all transactions under it, including agreements
and transactions relating to the furnishing of Services, the Lease or rental of
Equipment or Materials, the procurement of intellectual property rights and the
license of Software. Supplier shall submit to the jurisdiction of any court
wherein an action is commenced against Company based on a claim for which
Supplier has agreed to indemnify Company under this Agreement.
CLAUSE HEADINGS
The headings of the clauses in this Agreement are inserted for convenience only
and are not intended to affect the meaning or interpretation of this Agreement.
CLEAN-UP
Upon completion of installation or removal of the Equipment or of any other
Services performed by Supplier or any subcontractor on Company's or its
customer's premises, Supplier shall, at its expense, promptly remove all
implements, surplus materials and debris used in or produced by those
activities.
COMPLIANCE WITH LAWS
Supplier and all persons furnished by Supplier shall comply, at their own
expense, with all applicable federal, state, local and foreign laws, ordinances,
regulations and codes, including those relating to the use of
chlorofluorocarbons, and including the identification and procurement of
required permits, certificates, licenses, insurance, approvals and inspections,
in the performance of the Agreement. Supplier agrees to indemnify, defend (at
Company's request) and hold harmless Indemnitees from and against any losses,
damages, claims, demands, suits, liabilities, fines, penalties, and expenses
(including reasonable attorneys' fees) that arise out of or result from any
failure to do so.
35
DEFAULT
In the event Supplier shall be in breach or default of any of the terms,
conditions, or covenants of this Agreement or any purchase order and such breach
or default shall continue for a period of ten (10) days after the giving of
written notice to Supplier thereof by Company, then in addition to all other
rights and remedies which Company may have at law or equity or otherwise,
Company shall have the right to cancel this Agreement and/or purchase orders
placed by Company without any charge to or obligation or liability of Company.
EMERGENCY
Supplier shall use its best efforts to assist Company in obtaining components
and equipment compatible with the Equipment in an emergency.
FORCE MAJEURE
Neither party shall be held responsible for any delay or failure in performance
of any part of an Order to the extent the delay or failure is caused by fire,
flood, explosion, war, strike, embargo, government requirement, civil or
military authority, act of God, or other similar cause beyond its control and
without the fault or negligence of the delayed or nonperforming party or its
subcontractors ("Force Majeure Conditions"). Notwithstanding the foregoing,
Supplier's liability for loss or damage to Company's Equipment, Software,
Materials or other tangible article in Supplier's possession or control shall
not be modified by this clause. If any Force Majeure Condition occurs, the
party delayed or unable to perform shall give immediate notice to the other
party, stating the nature of the Force Majeure Condition and any action being
taken to avoid or minimize its effect, and the party affected by the other's
delay or inability to perform may elect to:
1. suspend the specific performance directly associated with the Force Majeure
Condition for the duration of the Force Majeure Condition, and
a. at the affected party's option, as applicable:
i. obtain a license elsewhere for Software to perform the functions of
the Software licensed under the Order and deduct from the duration
of the Order the time for which such other license was obtained,
or
ii. buy or sell elsewhere Equipment, Materials or Services to be bought
or sold under an Order and deduct from any commitment the
Equipment, Materials or Services bought or sold or for which
commitments have been made elsewhere, and
b. resume performance under the Order for the remainder of the duration
(once the Force Majeure Condition ceases) with an option in the
affected party to extend
36
such duration up to the length of time the
Force Majeure Condition endured and/or,
2. terminate the Order (at no charge) as to any Equipment, Software or
Materials which have not been shipped or as to any Services which has not
been commenced, when the delay or nonperformance continues for a period of
at least fifteen (15) days.
Unless written notice is given within forty-five (45) days after the affected
party is notified of the Force Majeure Condition, 1 shall be deemed selected.
FUTURE IMPROVEMENTS AND BENEFITS
As Supplier announces improvements, Supplier shall advise Company of their
features and advantages. Supplier assures Company that all prices, terms,
warranties and benefits granted to Company by Supplier for the Equipment,
Software, Materials, Services and improvements, are at least as favorable as
those now offered by Supplier to any of its commercial customers under similar
conditions. If, during the duration of this Agreement, Supplier should enter
into an arrangement with any other customer providing greater benefits or more
favorable terms, this Agreement shall be deemed amended to provide the same to
Company under the same conditions.
GOVERNMENT CONTRACT PROVISIONS
The following provisions regarding equal opportunity, and all applicable laws,
rules, regulations and executive orders specifically related thereto, including
applicable provisions and clauses from the Federal Acquisition Regulation and
all supplements thereto, are incorporated in this Agreement as they apply to
Services performed under specific U.S. Government contracts: 41 CFR 60-1.4,
Equal Opportunity; 41 CFR 60-1.7, Reports and Other Required Information; 41
CFR 60-1.8, Segregated Facilities; 41 CFR 60-250.4, Affirmative Action for
Disabled Veterans and Veterans of the Vietnam Era (if in excess of $10,000); and
41 CFR 60-741.4, Affirmative Action for Disabled Workers (if in excess of
$2,500), wherein "contractor" and "subcontractor" mean "Supplier". In
addition, Orders placed under this Agreement containing a notation that the
Equipment, Software, Services or Materials are intended for use under U.S.
Government contracts shall be subject to the other U.S. Government provisions
printed, typed or written thereon, or on the reverse side thereof, or in
attachments thereto. Supplier will be afforded thirty (30) days to review
government contract provisions, and will act in accordance with these provisions
to the extent Supplier is required to by law.
HARMONY
Supplier shall be entirely responsible for all persons furnished by it working
in harmony with all others when Supplier is working on Company's premises.
37
HEAVY METALS IN PACKAGING
Supplier warrants to Company that no lead, cadmium, mercury or hexavalent
chromium have been intentionally added to any packaging or packaging component
(as defined under applicable laws) to be provided to Company under this
Agreement. Supplier further warrants to Company that the sum of the
concentration levels of lead, cadmium, mercury and hexavalent chromium in the
package or packaging component provided to Company under this Agreement or an
Order does not exceed one hundred (100) parts per million. Upon request,
Supplier shall provide to Company Certificates of Compliance certifying that the
packaging and/or packaging components provided under this Agreement are in
compliance with the requirements set forth above in this clause. Supplier
agrees to indemnify, defend (at Company's request), and hold harmless
Indemnitees (all hereinafter referred to in this clause as "Company") from and
against any losses, damages, claims, demands, suits, liabilities, fines,
penalties, and expenses (including reasonable attorneys' fees) that arise out
of or result from Company's good faith reliance upon said warranties or any
certifications of compliance.
IDENTIFICATION
Supplier shall not, without Company's prior written consent, engage in
advertising, promotion or publicity related to this Agreement, or make public
use of any Identification in any circumstances related to this Agreement.
IMPLEADER
Supplier shall not implead or bring any action against Company or its customers
or the employees of Company or its customers based on any claim by a person for
personal injury or death to an employee of Company or its customers occurring in
the course or scope of employment and that arises out of Equipment, Software,
Services or Materials furnished under this Agreement or an Order, except for
Company's gross negligence or willful misconduct.
INDEMNITY
All persons furnished by Supplier shall be considered solely Supplier's
employees or agents, and Supplier shall be responsible for payment of all
unemployment, social security and other payroll taxes, including contributions
when required by law. Supplier shall indemnify, defend (at Company's request),
and hold harmless Indemnitees from and against any losses, damages, claims,
demands, suits, liabilities, fines, penalties, and expenses (including
reasonable attorneys' fees) that do, or allegedly do, arise out of or result
from:
1. injuries or death to persons or damage to property, including theft, in any
way arising out of, occasioned by, caused or alleged to have been caused
by the performance of the Services performed by Supplier or persons
furnished by Supplier, except for those instances caused by Indemnitees' or
Company's negligence, gross negligence or willful misconduct,
2. assertions under Workers' Compensation or similar acts made by persons
furnished by Supplier or by any subcontractor, or by reason of any
injuries to persons for which
38
Company would be responsible under Workers' Compensation or similar acts if
the persons were employed by Company,
3. any failure on the part of Supplier to satisfy all claims against it for
labor, equipment, materials, intangible items and other obligations
relating directly or indirectly to the performance of the Services; or
4. any failure by Supplier to perform Supplier's obligations under this clause
or the Insurance clause.
Supplier shall defend Indemnitees, at Company's request, against any of these
claims, demands or suits. Company agrees to notify Supplier in a timely manner
of any written claim or demands against Company for which Supplier is
responsible under this Clause. Company shall cooperate in good faith with
Supplier to facilitate the defense of any such claim or demand.
Supplier's liability for any indemnification to Company under this Section of
the Agreement shall not exceed fifty million dollars ($50,000,000.00) in the
aggregate for the entire Agreement.
INFRINGEMENT
Supplier shall indemnify, and hold harmless Indemnitees from and against any
losses, damages, liabilities, fines, penalties, and expenses (including
reasonable attorneys' fees) that arise out of or result from any proved or
unproved claim (1) of infringement of any patent, copyright, trademark or trade
secret right, or other intellectual property right, private right, or any other
proprietary or personal interest, and (2) related by circumstances to the
existence of this Agreement or an Order or performance under or in contemplation
of either of them ("Infringement Claim"). However, if the Infringement Claim
arises solely from Supplier's adherence to Company's written instruction
regarding Services or tangible or intangible goods provided by Supplier
("Items") and if the Items are not (1) commercial items available on the open
market or the same as such items, or (2) items of Supplier's designated origin,
design or selection, Company shall indemnify Supplier. The indemnifying party
shall defend or settle, at its own expense, any demand, action or suit on any
Infringement Claim for which it is the indemnitor under the preceding
provisions. Company or Supplier (at Company's request) shall defend or settle,
at its own expense, any demand, action or suit on any Infringement Claim for
which it is the indemnitor under the preceding provisions and shall timely
notify the other of any assertion against it of any Infringement Claim and shall
cooperate in good faith with the other to facilitate the defense of any such
claim.
Any claim and liability for all claims of infringement shall not exceed a cap of
one hundred million dollars ($100,000,000.00) in the aggregate for the entire
Agreement.
39
INSURANCE
Supplier shall maintain and cause Supplier's subcontractors to maintain during
the duration of this Agreement all of the following:
1. Workers' Compensation insurance as prescribed by the law of the state or
nation in which the Services is performed;
2. employer's liability insurance with limits of at least $500,000 for each
occurrence;
3. comprehensive automobile liability insurance if the use of motor vehicles
is required, with limits of at least $1,000,000 combined single limit for
bodily injury and property damage for each occurrence;
4. Commercial General Liability ("CGL") insurance, including Products Blanket
Contractual Liability and Broad Form Property damage, with limits of at
least $1,000,000 combined single limit for bodily injury and property
damage for each occurrence;
5. if the furnishing to Company (by sale or otherwise) of Equipment, products
or Materials is involved, CGL insurance endorsed to include products
liability and completed operations coverage in the amount of $5,000,000 for
each occurrence; and
6. Errors and Omissions insurance in the amount of at least $1,000,000 per
claim with an annual aggregate of at least $3,000,000 inclusive of legal
defense costs.
All CGL and automobile liability insurance shall designate AT&T Corp., its
Associated Entities and each of their officers, directors and employees (all
hereinafter referred to in this clause as "Company') as an additional insured.
All such insurance must be primary and required to respond and pay prior to any
other available coverage.
Supplier, Supplier's insurer(s) and anyone claiming by, through, under or in
Supplier's behalf shall have no claim, right of action or right of subrogation
against Company and its Customers based on any loss or liability insured against
under the foregoing insurance. Supplier and Supplier's subcontractors shall
furnish prior to the start of Services certificates or adequate proof of the
foregoing insurance including, if specifically requested by Company, copies of
the endorsements and insurance policies. Company shall be notified in writing at
least thirty (30) days prior to cancellation of or any change in the policy.
INVOICES AND TERMS OF PAYMENT
Invoices for the charges specified in an Order shall be submitted by Supplier to
the address specified in the Order. Unless payment terms more favorable to
Company are stated on Supplier's invoices and Company elects to pay on such
terms, undisputed invoices (invoices may only be disputed for nonconformance
with the accepted Order or any term and condition
40
in the Agreement) for purchased Equipment, Materials, annual Maintenance
Services or licensed Software shall be payable no later than the thirtieth (30)
day after (a) the date of receipt of undisputed invoices or (b) the date of
acceptance of the Equipment or Software or Materials or delivery of Materials at
Company's dock, whichever is later. The initial invoice for leased Equipment or
licensed Software shall be payable no later than the thirtieth (30) day after
acceptance of the Equipment or licensed Software. Subsequent invoices for
monthly charges for Equipment and Software and all invoices for monthly charges
for Services shall be submitted prior to completion of such monthly period and
shall be payable no later than thirty (30) days after receipt of such invoice.
All authorized charges in excess of regular rental or maintenance charges, if
any, shall be listed separately on the invoice. Supplier shall (1) render proper
original invoices showing Order number, through routing, weight and unit price
per the denomination specified in the Order, (2) render separate invoices for
each shipment and (3) forward xxxx of lading and shipping notices with invoice.
If prepayment of transportation charges is authorized, Supplier shall include
the transportation charges from the FOB point to the destination as a separate
item on the invoice stating the name of the carrier used. Company shall pay
Supplier in U.S. Dollars, via wire transfer.
MEDIATION
If a dispute arises out of or relates to this Agreement, or its breach, and the
parties have not been successful in resolving the dispute through direct
negotiation, the parties shall attempt to resolve the dispute first between
district managers; failing that, next by going through division managers and not
exceeding in total a period of sixty (60) days through non-binding mediation by
submitting the dispute to a sole mediator selected by the parties or, at the
option of a party, to mediation by the American Arbitration Association ("AAA").
Each party shall bear its own expenses and an equal share of the expenses of the
mediator and the fees of the AAA. The parties, their representatives, other
participants and the mediator shall hold in confidence the existence, content
and result of the mediation. If the dispute is not resolved by the mediation,
the parties shall have the right to resort to any remedies permitted by law.
Defenses based on the passage of time are suspended upon submitting the dispute
to the mediator and during the mediation. The time period during the mediation
shall be disregarded in calculating such defenses. Nothing in this clause
shall be construed to preclude any party from seeking injunctive relief in order
to protect its rights during mediation. A request by a party to a court for
injunctive relief shall not be deemed a waiver of the obligation to mediate.
NON-EXCLUSIVE MARKET RIGHTS
This Agreement neither grants to Supplier an exclusive right or privilege to
sell, license or Lease to Company any or all Equipment, Software, Services or
Materials described in this Agreement which Company may require, nor requires
the purchase, license or Lease of any Equipment, Software, Services or Materials
from Supplier by Company. Company may contract with other manufacturers and
suppliers for the acquisition of comparable Equipment, Software, Services or
Materials. Purchases, licenses or leases by Company under this Agreement shall
be initiated by the placement of an Order by Company and the Order shall not
41
restrict the right of Company to cease acquisition nor require Company to
continue any level of acquisition from Supplier.
NOTICES
Any notice, demand or other communication (other than an Order) required, or
which may be given, under this Agreement shall, unless specifically otherwise
provided in this Agreement, be in writing and shall be given or made by
overnight courier service, confirmed facsimile, registered or certified mail
(return receipt) or other media which provides the sender with written record of
delivery, and shall be addressed to the respective parties as follows:
To Supplier: Xxxx Xxxxx
Chief Operating Officer
Clarent Corporation
000 Xxxxxxxxxx Xxxxx
Xxxxxxx Xxxx, XX 00000
cc: Xxxx XxXxxxxx
Clarent Corporation
0000 Xxxxxxxx Xxxxx Xxxxx 000
Xxxxxxxxxx, XX 00000
To Company or AT&T Corp.: Xxxx Xxxxxx
AT&T Corp.
Supplier Management Division
00 Xxxxxxxxxxxx Xxxxxxxxx
Xxxx 0X00
Xxxxxx, XX 00000
The notice, demand or other communication (other than an Order) shall be deemed
to have been given or made when picked up by the delivery services mentioned
above. The above addresses may be changed at any time by giving thirty (30)
days prior written notice.
PUBLICITY
Supplier agrees to submit to Company all advertising, sales promotion, press
releases, and other publicity matters relating to the material furnished or the
services performed by Supplier under this Agreement wherein Company's names or
marks are mentioned or language from which the connection of said names or marks
therewith may be inferred or implied; and Supplier further agrees not to publish
or use such advertising, sales promotion, press releases, or publicity matters
without Company's prior written approval.
42
ORDER TERMINATION
An Order may be terminated by Company, at no charge unless specified in an
Order, at any time prior to shipment from Supplier's plant or commencement of
Services. Company shall notify Supplier in writing of any such termination.
OZONE DEPLETING SUBSTANCES
Supplier warrants and certifies that all Equipment, Software, and Materials,
including packaging and packaging components, provided to Company under this
Agreement have been accurately labeled, in accordance with the requirements of
40 CFR Part 82 entitled "Protection of Stratospheric Ozone, Subpart E - The
labeling of Products Using Ozone Depleting Substances." Supplier agrees to
indemnify, defend and save harmless Indemnitees from and against any losses,
damages, claims, demands, suits, liabilities, fines, penalties, and expenses
(including reasonable attorneys' fees) that may be sustained by reason of
Supplier's non-compliance with such applicable law or the terms of this warranty
and certification.
QUARTERLY REPORTS
Upon request, Supplier shall render quarterly reports covering Orders placed
under this Agreement for Equipment, Software, Services and Materials as early in
the subsequent quarter as possible. This report shall be submitted in a
mutually agreed upon format.
RELEASES VOID
Neither party shall require (i) waivers or releases of any personal rights, or
(ii) execution of documents which conflict with the provisions of this
Agreement, from employees, representatives or customers of the other in
connection with visits to its premises, and no such releases, waivers, or
documents shall be pleaded by them or third persons in any action or proceeding.
RIGHT OF ENTRY AND PLANT RULES
Each party shall have the right to enter the premises of the other party during
normal business hours with respect to the performance of this Agreement, subject
to all plant rules and regulations, security regulations and procedures and U.S.
Government clearance requirements, if applicable. Supplier shall become
acquainted with conditions governing the delivery, receipt and storage of
Materials and Equipment at the site of the Services so that Supplier will not
interfere with Company's operations. Storage space will not necessarily be
provided adjacent to the site of the Services. Therefore, Supplier shall be
expected to select, uncrate, remove and transport Materials and Equipment from
the storage areas provided. Company is not responsible for the safekeeping of
Supplier's property on Company's premises. Supplier shall not stop, delay or
interfere with Company's work schedule without the prior approval of Company's
Representative. Supplier shall provide and maintain sufficient covering and
take any other precautions necessary to protect Company's stock, equipment and
other property from damage due to Supplier's performance of the Services.
43
SEVERABILITY
If any of the provisions of this Agreement shall be invalid or unenforceable,
the invalidity or unenforceability shall not invalidate or render unenforceable
the entire Agreement or Order, but rather the entire Agreement or Order shall be
construed as if not containing the particular invalid or unenforceable provision
or provisions, and the rights and obligations of the parties shall be construed
and enforced accordingly.
SHIPPING
Supplier shall, at its expense, do all of the following:
1. Ship the Equipment, Software and Materials to the site designated in an
accepted Order by the date set forth in the accepted Order in accordance
with specific shipping instructions. If Supplier anticipates that an
accepted Order will be delayed more than 24 hours past the due date stated
in the accepted Order, Supplier will immediately notify Company's
representative as designated on the accepted Order,
2. Place the accepted Order number on all subordinate documents,
3. Enclose a packing memorandum with each shipment, and when more than one (1)
package is shipped, identify the one containing the memorandum,
4. Xxxx the accepted Order number on all packages and shipping papers, and.
5. Furnish adequate protective packing at no additional charge.
If Supplier does not comply with the F.O.B. terms of an Order or with Company's
shipping or routing instructions, Supplier authorizes Company to deduct from any
invoice of Supplier (or charge back to Supplier), any increased costs incurred
by Company as a result of Supplier's noncompliance.
STANDARDS
Employees of Supplier with records of criminal convictions, other than minor
traffic violations, shall not be assigned to Company's premises until a detailed
statement of the circumstances is furnished to Company for its review, and
Company has given its written approval of such assignment. In fulfilling
Supplier's obligations under this clause, Supplier shall comply fully with all
laws relating to the making of investigative reports and the disclosure of
information contained therein.
44
SUPPLIER'S INFORMATION
Except for documentation provided hereunder, and notification of significant
bugs, Supplier shall not provide under, or have provided in contemplation of,
this Agreement any Information or Medium, unless Supplier has the right to do
so, and Supplier shall not view any of the Information as confidential or
proprietary. Further, there are no limitations on the Use of Software except as
otherwise agreed to in this Agreement. Notwithstanding the above, Company will
protect Software received from Supplier with the same degree of care that
Company normally uses to protect its own Software that it does not wish to
become public knowledge, and Company will advise any recipient of such Software
of that obligation under this Agreement.
SURVIVAL OF OBLIGATIONS
The obligations of the parties under this Agreement, which by their nature would
continue beyond the termination, cancellation or expiration of this Agreement,
including, by way of illustration only and not limitation, those in the
COMPLIANCE WITH LAWS, IDENTIFICATION, IMPLEADER, INDEMNITY, INFRINGEMENT,
INSURANCE, RELEASES VOID, USE OF INFORMATION, LICENSE GRANT, INTELLECTUAL
PROPERTY, SOURCE CODE LICENSE, MEDIATION and WARRANTY clauses, shall survive
termination, cancellation or expiration of this Agreement.
TAXES
Company agrees to pay any applicable sales, use, excise, import or export tax,
value-added or similar tax, customs, duties, tariffs and similar charges levied
upon the delivery of Supplier's products (hereinafter referred to as "Tax" or
"Taxes"); provided, however, that Company shall not pay or be responsible for
any taxes (i) with respect to which Company has advised Supplier of an exemption
and provided all reasonably required substantiation, (ii) imposed on or in
respect of Supplier's net or gross income, or (iii) imposed on or in respect of
bringing Supplier's products to Supplier's shipping point. Taxes payable by
Company shall be shown as separately billed items on Supplier's invoices in a
form adequate to obtain any applicable recovery or credit and shall not be
included in Supplier's prices. Supplier shall make every reasonable effort to
assist and inform Company of the possible Taxes that may apply.
Company shall have the right to have Supplier contest any such Taxes that
Company deems improperly levied, at Company's expense and subject to Company's
direction and control. If the non-taxability of the subject transaction is
disputed in any audit or assessment of Supplier or a claim for refund for such
Taxes is refused by any jurisdiction, then Supplier shall promptly notify
Company in writing of such assessment or refusal. Company shall have the right,
by notifying Supplier within 30 days of receipt by Company of such notice, to
assume control of the conduct and resolution of such dispute, provided that
Company shall have acknowledged in writing that it shall indemnify and hold
harmless Supplier from and against any damages, liabilities, fines, penalties,
and expenses (including reasonable attorneys' fees) that arise out of or
45
result from any claim that Company has failed to pay any such Taxes and fees.
Failure by Supplier to provide this notification to Company shall relieve
Company of its indemnification obligation to the extent that such failure
materially prejudices the rights of Company to fully defend its position with
respect to the non-taxability of these transactions.
TIMELY PERFORMANCE
If either party has knowledge that anything prevents or threatens to prevent the
timely performance of the Services under this Agreement, either party shall
immediately notify the other party thereof and include all relevant information
concerning the delay or potential delay.
TOOLS AND EQUIPMENT
Unless otherwise specifically provided in an Order, Supplier shall be
responsible for providing all labor, tools and equipment ("Tools") for
performance of an Order. If Supplier actually uses any Tools owned or rented by
Company or its customers, Supplier acknowledges that Supplier accepts the Tools
"as is, where is" and that neither Company nor its customers have any
responsibility for the condition or state of repair of the Tools and that
Supplier shall have risk of loss and damage to such Tools. Supplier shall not
remove the Tools from Company's or its customers' premises and shall return the
Tools to Company or its customers upon completion of use, or at such earlier
time as Company or its customers may request, in the same condition as when
received by Supplier, reasonable wear and tear excepted.
USE OF INFORMATION
Supplier shall view as Company's property any Information or Medium, however
conveyed, provided to, or acquired by, Supplier under or in contemplation of
this Agreement or an Order. Supplier shall, at no charge to Company, and as
Company directs, destroy or surrender to Company promptly at its request any
such Medium or any copy of such Information. Supplier shall keep Information
confidential and use it only in performing under this Agreement or an Order and
obligate its employees, subcontractors and others working for it to do so,
provided that the foregoing shall not apply to Information previously known to
Supplier free of obligation, made public through no fault imputable to Supplier.
VARIATION OF QUANTITY
Company assumes no liability for Equipment, Software, or Materials produced,
processed or shipped in excess of the amount specified in any Order placed with
Supplier.
WAIVER
The failure of either party at any time to enforce any right or remedy available
to it under this Agreement or otherwise with respect to any breach or failure by
the other party shall not be construed to be a waiver of that right or remedy
with respect to any other breach or failure by the other party.
46
WORK DONE BY OTHERS
If any part of the Services performed by Supplier is dependent upon Services
done by others, Supplier shall inspect and promptly report to Company any defect
that renders the other work unsuitable for Supplier's proper performance.
Supplier's silence shall constitute approval of the other work as fit, proper
and suitable for Supplier's performance of the Services or other work.
ENTIRE AGREEMENT
This Agreement shall incorporate the typed or written provisions on Company's
Orders issued pursuant to this Agreement and shall constitute the entire
agreement between the parties with respect to the subject matter of this
Agreement and the Order(s) and shall not be modified or rescinded, except by a
writing signed by duly authorized representatives of Supplier and AT&T Corp.
The provisions of this Agreement shall apply to:
1. any Orders issued pursuant to this Agreement, and
2. any Services, Material, Equipment, intellectual property rights and
Software or other Information furnished under, in performance of,
pursuant to, or in contemplation of, this Agreement.
Printed provisions on the reverse side of Company's Orders (except as specified
otherwise in this Agreement) and all provisions on Supplier's forms shall be
deemed deleted. Additional or different provisions inserted in this Agreement
by either party, or deletions thereto, whether by alterations, addenda, or
otherwise, shall be of no force and effect, unless expressly consented to by
both parties in writing. Estimates or forecasts furnished by Company shall not
constitute commitments. The provisions of this Agreement supersede all
contemporaneous oral agreements and all prior oral and written quotations,
communications, agreements and understandings of the parties with respect to
the subject matter of this Agreement.
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AGREED:
Clarent Corporation AT&T Corp.
/s/ Xxxx XxXxxxxx /s/ Xxxxxxxx X. Xxxxxxxxx
By:________________________ By:__________________________
(signed) (signed)
Xxxx XxXxxxxx Xxxxxxxx X. Xxxxxxxxx
Name:______________________ Name:_________________________
(printed) (printed)
Vice President Group Procurement
Worldwide Sales Manager
Title:______________________ Title:__________________________
10/15/98 10/15/98
Date:______________________ Date:________________________
48
