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EXHIBIT 10.6
CONTRACT NO.
MASTER RESELLER AGREEMENT
BETWEEN
SPRINT/UNITED MANAGEMENT COMPANY
AND
VISUAL NETWORKS
This MASTER RESELLER AGREEMENT ("Agreement") effective August 23, 1996
("Effective Date"), between Sprint/United Management Company, a Kansas
corporation, ("Sprint"), with offices located at 0000 Xxxx Xxxxxxx, Xxxxxx
Xxxx, Xxxxxxxx 00000 and Visual Networks, a Delaware corporation ("Supplier"),
with offices located at 0000 Xxxxxxx Xxxx, Xxxxxxxxx, XX 00000.
BACKGROUND
Supplier designs, develops, manufactures, and sells electronic equipment
("Equipment") and firmware and software as further defined in Section 13, below
("Software"), (collectively, "Products"), including auxiliary installation,
training, and technical and marketing support services ("Services"); and
Sprint desires to purchase or license various Products and Services from
Supplier that Sprint expects to use itself, or resell or sublicense to others
solely in association with Sprint network Services provided to Sprint or
Sprint's customers ("Customers"), and Supplier is willing to sell and license
the Products to Sprint and provide Services subject to the terms of this
Agreement.
The parties agree as follows:
1.0 SCOPE
(a) This Agreement contains the terms that will apply to any
contract or purchase order("Order") that Sprint may place with
Supplier during the term of this Agreement for Products and
Services offered by Supplier more fully described in Exhibit
A, attached to and incorporated in this Agreement.
In addition, Sprint may issue a non-binding yearly Order
("Blanket Order") which will apply to Products ordered during
that year. During a given year, Sprint may amend from time to
time the Blanket Order. The parties agree that the Blanket
Order does not obligate Sprint to any dollar amount or volume
of purchases of Product and is only intended to facilitate in
order administration.
Under a Blanket Order, Sprint will issue a document for the
purchase of Product under it ("Release"). A Release commits
Sprint to the purchase of the specific dollar amount or
quantity set forth in that Release. In addition, a Release
commits Supplier to ship the Product identified in the Release
and invoice Sprint in accordance with this Agreement.
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(b) The terms of this Agreement control over any additional or
inconsistent terms found in any Order under this Agreement or
in any acknowledgment or other form used by Supplier, or any
exhibits attached to this Agreement.
(c) The Order becomes a binding obligation of the parties when
Supplier signs and returns to Sprint an acceptance copy of the
Order or begins performance of the Order, whichever occurs
first.
(d) This Agreement is entered into by Sprint on its own behalf and
for the benefit of all Sprint Corporation affiliated entities
("Sprint Affiliates") as set forth in Exhibit C. The term
Sprint Affiliate includes: a) controlled Sprint Affiliates,
meaning any entity in which Sprint Corporation or its
wholly-owned affiliates has practical management control over
the entity by virtue of majority stock ownership or an
equivalent ownership interest, b) uncontrolled Sprint
Affiliates, meaning any entity in which Sprint Corporation
directly or indirectly holds an equity or similar interest,
but the interest does not give practical management control,
or c) remote Sprint Affiliates, meaning parent entities of
joint ventures of which Sprint or Sprint Affiliates are a
part, telecommunications entities which have an affiliation
with those joint ventures, and business customers of Sprint of
Sprint Affiliates.
Any controlled Sprint Affiliate may automatically execute a
Contract Order under this Agreement. Subject to negotiation
and upon approval by Sprint's Material & Services Management
Department ("M&SM"), Supplier will accept any uncontrolled or
remote Sprint Affiliate Contract Order. All references to
Sprint refer equally to Sprint Affiliates executing Contract
Orders with terms in accordance with this Agreement. No
commitment is made by Sprint or any Sprint Affiliate, nor any
liabilities accepted, except that set forth in a properly
signed Contract Order. All communications and invoices must
be directed to the Affiliate issuing the Contract Order under
the instructions issued in the Contract Order. Services
performed on behalf of any Sprint Affiliate will be billed to
or collected from only that Affiliate. Only the Sprint
Affiliate issuing a specific Contract Order under this
Agreement will incur any obligation or liability to Supplier
for any claim which may arise from or relate to that Contract
Order.
(e) Sprint is not committed to purchasing any minimum Order or
aggregate dollar volume of Products or Services during the
term of this Agreement, however, Sprint may provide monthly
and yearly estimates of Product purchases ("Forecast") for
planning purposes. Any Forecast provided to Supplier by
Sprint is not a commitment on Sprint's part to purchase
certain dollar amounts or quantities.
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Pricing for Year One of this Agreement is as indicated in
Exhibit A, Pricing, Schedule I. If Sprint does not purchase
80% of the amount for the specific period as detailed below,
the pricing for the subsequent year will be as indicated in
Exhibit A, Pricing, Schedule II. If Sprint purchases 80% or
greater than the amount for the specific period, as detailed
below, then the pricing will be as indicated in Exhibit A,
Pricing, Schedule I, for the subsequent period.
Year One of Agreement: $ *** (net of applied discounts)
Year Two of Agreement: $ *** (net of applied discounts)
Year Three of Agreement: $ *** (net of applied discounts)
NOTE: Any purchases made, prior to this Agreement, against the
CUSTOMER-SPECIFIC INTEGRATOR PARTNER AGREEMENT between the
parties, # CSIP-SP-001, will be included toward Year One's
volume.
2.0 TERM & TERMINATION
(a) This Agreement begins on the Effective Date and will remain in
force for a period of 3 years unless terminated as provided in
this Agreement.
(b) Either party may terminate this Agreement upon 30 days' prior
written notice to the other party if the other party
materially breaches the Agreement and fails to cure the breach
within 30 days of written notice of the breach.
(c) Either party may terminate this Agreement upon written notice
to the other party, if the other party is placed in
liquidation or receivership, if a petition of voluntary or
involuntary bankruptcy is filed against it and if the petition
is not dismissed within 30 days, or if it fails to satisfy a
final and valid court judgment for payment of money.
(d) This Agreement, including any Order, may be terminated
immediately at any time by Sprint without penalty if there is
any change in control or ownership of Supplier to a direct
competitor of Sprint (as reasonably determined by Sprint). If
permitted under applicable securities law, Supplier must give
Sprint no less than 30 days written notice of any change in
control or ownership of Supplier. This subsection does not
apply in the event of Supplier's acquisition as a
publicly-traded company.
3.0 PRICE AND TERMS OF SALE
(a) Prices for the Products and Services for the Term of this
Agreement are set forth in Exhibit A.
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*** Confidential Information has been omitted and filed separately with the
Securities and Exchange Commission.
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(b) Supplier warrants that the terms of this Agreement and the
prices on Exhibit A are no less favorable than the terms given
to any third party that purchases or licenses similar Products
or Services from Supplier under similar terms and conditions.
If Supplier offers more favorable prices and terms to any
Customer during the term of this Agreement, the prices and
terms will be applicable to Sprint Orders. Supplier warrants
that the prices on Exhibit A are complete and include, but are
not limited to, purchase price, maintenance fees, taxes,
packaging, labeling, custom duties, storage and insurance. In
determining whether an agreement is of similar scope and the
consideration is less, all the terms of this Agreement and
that agreement will be analyzed as a whole.
(c) Post Term Maintenance. At Sprint's option at the end of the
Term, Supplier will offer maintenance Services under the terms
of this Agreement at an annual cost not to exceed ***% of the
cumulative sales of ASEs, PAMs, PACSs, & MICs, as defined in
Exhibit A.
4.0 INVOICING AND PAYMENT
(a) Invoices must show:
(i) the Contract number, Order number, and Release
number,
(ii) the date shipment was made and the shipping point for
Products;
(iii) that the line item on the Order matches the line item
on the invoice, including the price and description,
unless there has been a price decrease.
(b) Sprint may specify additional invoicing instructions on the
Order. Supplier may not invoice Sprint until Products are
shipped, or Services have been accepted by Sprint.
(c) Payment *** days after receipt of valid invoice for the first
12 months of this Agreement. Thereafter, payment is *** days
from receipt of valid invoice . A legible FAX invoice is
acceptable provided no other copy is provided.
(d) Sprint and Supplier may desire to facilitate certain commercial
transactions between them electronically in Electronic Data Interchange ("EDI")
format in substitution for conventional paper-based documents. EDI
transactions under this Agreement, may include transmitting and receiving EDI
data for ordering, invoicing and payment. Prior to initiating an EDI
transaction, Sprint and Supplier will separately execute Sprint's Trading
Agreement which will set forth the terms and conditions of the EDI transaction.
5.0 DELIVERY, TITLE, RISK OF LOSS
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*** Confidential Information has been omitted and filed separately with the
Securities and Exchange Commission.
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(a) Delivery of Products will be F.O.B. Origination Freight
collect, and title and risk of loss will pass to Sprint, upon
delivery to Sprint carrier. Supplier agrees to follow
Sprint's shipping instructions, as detailed in Exhibit B,
Sprint Transportation Routing Guide.
(b) If Supplier fails to meet the delivery date, Sprint may direct
expedited routing and excess costs will be debited to
Supplier's account, or, in accordance with Paragraph 7,
Cancellation for Cause, cancel all or part of the Order. If
Products are delivered ahead of the delivery date, Sprint may:
(i) return the Products at Supplier's expense for early
delivery; or
(ii) withhold payment for the Products until after the
specified delivery date; or
(iii) place Products in storage for Supplier's account
until the specified delivery date.
(c) *** days before each quarter, Sprint will provide to Supplier
a quarterly Forecast by Product, and upon Sprint's request,
Supplier agrees to deliver any amount of Product included
within that Forecast within ***days. On amounts exceeding
the prorated volumes, delivery will occur consistently within
*** days.
***
(d) The name, addresses and contact person of Supplier's
Affiliates and distributors, through which any Services may be
ordered by Sprint, are set forth in Exhibit C. Supplier will
notify Sprint, in writing, of any changes in the Affiliates
and distributors on Exhibit C.
6.0 INSPECTION, ACCEPTANCE AND QUALITY CONTROL
(a) Sprint may inspect Products according to an agreed upon
incoming inspection procedure and rejection rate. Products
that fail to meet inspection criteria will be returned to
Supplier, at Supplier's expense. Supplier will pay for
reshipping conforming Products to Sprint. Sprint may place a
hold on all pending Orders until Supplier has demonstrated
that the cause for rejection has been corrected. If the cause
for rejection is not corrected within 30 days after rejection,
Sprint may cancel outstanding Orders without further
obligation or liability. Sprint may conduct a site inspection
at Supplier's facility during business hours by providing 7
days notice to Supplier.
(b) If Supplier becomes aware of any problem with a Product that
is of a safety, regulatory compliance, environmental
compliance, or serious performance nature, and changes the
design or documentation related to the Product, Supplier must
implement the change in accordance with Exhibit D.
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*** Confidential Information has been omitted and filed separately with the
Securities and Exchange Commission.
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(c) In order for the Products to be connected to the Sprint public
communications network, the Products must pass Sprint's
certification tests. This includes any material modifications
made to any Products to ensure operability and backward
compatibility with Sprint's network. Such materiality shall
be determined by Sprint. Accordingly, Supplier will provide
Sprint units of Product at no charge, along with cables, and
Documentation, to enable Sprint to perform its certification
process.
7.0 CANCELLATION
(a) Cancellation for Cause. Sprint may cancel an Order, in whole
or in part, if Supplier fails or refuses to deliver Products
or Services as ordered on the delivery date, or if Supplier is
not performing in accordance with Supplier-published
specifications. Sprint's acceptance of all or any part of the
Products or Services will not waive claims which Sprint may
have for delays.
If Sprint cancels an Order in whole or in part for cause,
Sprint may procure similar Products or Services from a third
party, and Supplier must pay Sprint for the excess cost for
the replacement Products or Services to be capped at 200% of
Sprint's purchase price for that Order. If cancellation is
partial, Supplier must continue the performance of the
remaining portion of the Order
(b) Cancellation for Convenience:
(i) Prior to delivery, for Releases and orders under ***,
Sprint may, without penalty or other liability
reschedule or cancel a delivery. For Releases or
Orders over ***, Sprint may cancel a Release or Order
within *** days of the shipment date, or pay
reasonable inventory carrying costs until such
inventory is sold to Sprint.
(ii) After partial delivery, Sprint may cancel any or all
of the remaining portion of the Release or Order upon
written notice. Upon receipt of notice, Supplier
must discontinue work, preserve and protect
materials, work in progress and completed work and
conclude performance in accordance with Sprint's
instructions. Sprint will pay Supplier's costs
properly incurred (substantiated by documentation
satisfactory to Sprint) Supplier will not be entitled
to any additional damages on account of cancellation.
8.0 TERRITORY
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*** Confidential Information has been omitted and filed separately with the
Securities and Exchange Commission.
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The territory will be defined by the address of Sprint's network services
client. Supplier will ship Products only to United States locations at
Sprint's expense. Sprint will be responsible for shipment of Supplier's
Products outside of the United States, at Sprint's expense. Supplier's
Products shall be leased, resold or integrated only into Sprint network
services offerings for clients that are United States based, United States
based multinationals or United States based divisions of international
corporations.
9.0 WARRANTY
(a) Supplier warrants all Equipment against material defects in
material and workmanship and warrants that Equipment will
strictly conform with Supplier's written specification for 5
years from either the date of shipment (or installation if
applicable). Equipment that is repaired or replaced is
warranted by Supplier for the remaining period of the original
warranty, or for 90 days from date of shipment by Supplier,
whichever is longer. All Equipment must be new.
(b) If the Equipment is defective in material or workmanship or
fails to comply with the applicable Equipment specification
during the warranty period, Supplier will repair or replace
the Equipment at Supplier's facility or modify the Equipment
to comply with the Equipment specification. Sprint will
notify Supplier if Sprint requires the original Equipment to
be repaired and returned to Sprint. Sprint will pay the cost
of shipping the defective Equipment to Supplier. The repair
or replacement of the Equipment will be made within 10
business days of receipt by Supplier, at no charge to Sprint.
Shipment of the repaired Equipment to Sprint will be at
Supplier's expense. If Supplier is unable to repair or
replace the Equipment or to modify the Equipment within the 10
business days, Sprint may reject the Equipment and Supplier
will refund to Sprint all monies paid in connection with that
Equipment including but not limited to shipping..
(c) Supplier warrants that all Products, when delivered, conform
to all applicable laws and regulations.
(d) i) Supplier warrants all Software will be in
accordance with Supplier's specifications for a
period of 45 days, from Sprint's acceptance.
Supplier will, at its option, correct or replace any
defective Software version or update at Supplier's
expense, if the Software was installed properly and
used in accordance with Supplier's specification.
ii) Supplier has the full power and authority to grant
the license granted Sprint under this Agreement with
respect to the Software, and neither the license to
nor use by Sprint of the Software, as permitted under
this Agreement, will in any way constitute an
infringement or other violation of any copyright,
patent, trade secret, trademark, nondisclosure, or
any other intellectual property right, moral right,
or right of publicity. The
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Software licensed under this Agreement will be free
and clear of all liens and encumbrances.
iii) To the best of Supplier's knowledge, after
investigation, neither Supplier nor its personnel
performing Services under this Agreement has any
existing obligation that would violate or infringe
upon the rights of third parties, including property,
contractual, employment, trademark, trade secrets,
copyright, patent, proprietary information and non
disclosure rights, that might affect Vendor's ability
to fulfill its obligations under this Agreement.
iv) During Term or when Maintenance is provided after the
Term, Supplier guarantees that its maintenance and
technical support Services described in this
Agreement and the Schedule hereto will be available
for the then-current and immediately preceding
versions of the Software licensed under this
Agreement.
(e) Supplier warrants all Services provided will be performed in a
workmanship like and timely manner, in conformance with the
highest professional standards of the industry and to Sprint's
reasonable satisfaction. Defective or deficient Services will
be corrected, or, at Sprint's option, monies paid to Supplier
in connection with the Services will be refunded.
(f) Additional Supplier warranties and maintenance Services which
must be provided by Supplier are included in Exhibit D.
(g) The warranties are made solely to and for the benefit of
Sprint and its Customer. Supplier makes no other warranties
with respect to the products or any services and disclaims all
other warranties, . Sprint's sole remedy with respect to any
warranty or defect is as stated above.
10.0 SUPPLIER SUPPORT OBLIGATIONS
Supplier agrees to provide to Sprint the support Services detailed in
Exhibit E.
11.0 OWNERSHIP
(a) All Equipment, materials, drawings, Software or data of every
description that Supplier receives directly or indirectly from
Sprint or from a third party on behalf of Sprint, or that is
paid for in whole or in part by Sprint, is the property of
Sprint ("Sprint-owned"). Supplier must xxxx all such property
as Sprint-owned, and must return all Sprint-owned property to
Sprint upon Sprint's request, or upon the termination or
expiration of this Agreement, whichever is earlier. Supplier
is responsible and must account for all Sprint-owned property,
and bears the risk of loss while the property is in Supplier's
possession. Sprint-owned property may only be used in
Supplier's performance of this Agreement. Sprint may inspect
any
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agreements and associated records, including invoices, by
which Supplier acquires Sprint-owned property.
(b) Supplier retains all ownership and unrestricted rights to the
Products. In the future, Sprint and Visual may conduct good
faith negotiations on future product enhancements to the
Products as part of a new and separate executed agreement.
The purpose of such agreement will be to define possible
specific developments unique to Sprint (for which Sprint would
pay for development) and possible specific, defined
restrictions on Supplier's distribution rights for those
developments.
12.0 PROPRIETARY INFORMATION
(a) Supplier and Sprint acknowledge that while performing this
Agreement they may have access to Supplier-owned or
Sprint-owned trade secrets including, but not limited to,
products, planned products, service or planned service,
suppliers, customers, prospective customers, data, financial
information, computer software, processes, methods, knowledge,
inventions, ideas, marketing promotions, discoveries, current
or planned activities, research, development or other
information relating to Sprint's or Supplier's business
activities or operations or those of either's customers or
suppliers ("Proprietary Information").
(b) This Agreement creates a confidential relationship between
Sprint and Supplier. Sprint and Supplier will keep
Proprietary Information confidential and, except as authorized
by Sprint or Supplier in writing, Supplier and Sprint may only
use Proprietary Information to perform the Services or provide
the Products as required under this Agreement, and may only
make copies necessary for performing or reselling the Services
or providing the Products. Supplier or Sprint will label all
Proprietary Information as proprietary or if disclosed in an
intangible format, confirm in writing within 30 days of
disclosure. Upon cessation of work, or upon Sprint's or
Supplier's request, Sprint or Supplier will return all
documents and other materials in their control that contain
or relate to Proprietary Information.
(c) Sprint may require signed non-disclosure agreements from
Supplier's employees, agents or subcontractors.
(d) Proprietary Information does not include information that
Supplier or Sprint can demonstrate by written documentation:
(i) is rightfully known to Supplier or Sprint prior to
negotiations leading to this Agreement;
(ii) is independently developed by Supplier or Sprint
without any reliance on Proprietary Information; or
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(iii) is or later becomes part of the public domain or is
lawfully obtained by Supplier or Sprint from a third
party.
(e) Supplier and Sprint acknowledge that disclosure of Proprietary
Information by Supplier or Sprint will cause irreparable
injury to Sprint or Supplier, Sprint's Customers and other
suppliers, that is inadequately compensable in monetary
damages. Accordingly, Sprint or Supplier may seek injunctive
relief in any court of competent jurisdiction for the breach
or threatened breach of this Section 12, in addition to any
other remedies in law or equity.
13.0 LICENSE OF SOFTWARE
(a) "Software" means any program stored on any media, including
but not limited to, magnetic tape, semiconductor device, disk,
or other memory device, or computer memory and including
related items. Supplier grants to Sprint a non-exclusive,
fully paid-up, perpetual license to use the object code of the
Software with the right to sublicense the object code to its
Customers, provided that the object code will only be used in
connection with the Products for which it was acquired and by
Sprint's consultants and agents on a need-to-know basis. This
right to use and sublicense the object code is subject to
payment of applicable license fees.
(b) Sprint acknowledges that Supplier claims that the Software is
proprietary to Supplier and third parties from whom Supplier
has acquired license rights. Title to the Software will
remain with Supplier or the third-party owners. Sprint will
enter into a software license agreement with its Customers,
prior to providing the object code of the Software. The
software license will be either a separate agreement or a
master sublicense agreement under which various products are
sublicensed by Sprint and will contain provisions that are no
less restrictive than those of this Section 13.
(c) Sprint may copy the object code of the Software for the
purpose of distributing it to its Customers. Additionally,
Sprint, its distributors, Customers and prime contractors may
copy the object code of the Software for back-up or archival
purposes. Each copy of the Software made by Sprint, its
distributors, Customers, and prime contractors will include
the proprietary notice contained in the Software as delivered
by Supplier.
(d) During the Term of this Agreement or when maintenance is
provided following the Term, Sprint may distribute copies of
any Software correction, modification, or update provided to
Sprint or its Customers at no additional cost.
(e) Sprint will not, and will not assist any third party to,
modify, reverse assemble, reverse compile or reverse engineer
the Software.
(f) The expiration or termination of this Agreement will not
terminate the right of Sprint or its Customers to use the
Software.
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(g) Supplier warrants, that it is not necessary for Sprint, or its
Customers to obtain a license from any third party in order to
use the Products, other than the license granted by Supplier
under Sections 13 and 15.
(h) Failure to comply with Section 13 is a material breach of this
Agreement.
14.0 ESCROW AGREEMENT
(a) Within 30 days after the Effective Date, Supplier and Sprint
will enter into an escrow agreement ("Escrow Agreement") with
an escrow agent. The Escrow Agreement will provide for the
delivery of items necessary to recreate, modify, maintain and
use the Software, including without limitation, flow chart and
diagrams, compilers, operating Software, and relevant
documentation, such as design documentation and the document
environment ("Source Code") to the escrow agent, and require
the Supplier to deposit in escrow any modifications or
enhancements to the Source Code of the Software within 45 days
after provision of such modifications and/or enhancements to
Sprint or its Customers. In addition, Sprint will be
permitted to inspect the Source Code, which has been deposited
in escrow, through an independent third-party, to verify that
the Source Code has been deposited and that it contains
everything needed to use and maintain the Software. The fees
of the escrow agent will be paid by Sprint.
(b) Sprint will have the right to obtain a copy of the Source Code
from the escrow agent to maintain, modify and enhance the
Software for itself and sublicensees, subject to the
confidentiality provisions of this Agreement, and only if one
or more of the following events occurs:
(i) Supplier willfully refuses for more than 30 days to
deliver the Software to Sprint, or to support the
Software licensed by Sprint to a Customer, in breach
of Supplier's obligations under this Agreement, or
(ii) Supplier is unable to deliver the Software to Sprint
due to Supplier's voluntary or involuntary
bankruptcy, insolvency, dissolution or cessation of
active business operations for a period of more than
30 days.
If one or more of the above listed events occurs, Supplier
automatically, by the terms of this Agreement, grants to
Sprint a personal (except for third parties permitted to work
with the source code pursuant to Subsection (c) below,
non-exclusive, royalty free, worldwide license to use the
Source Code for the purpose of meeting its support obligations
to itself and its Customers. The 30-day period referred to
in subsections (i) and (ii) commences when Supplier receives
written notice from Sprint that the event has occurred.
(c) In the event of an Escrow withdraw as set forth in this
Section, Sprint may not sublicense the Source Code to any
third party not a Customer. Sprint may permit
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third parties to work with the Source Code on Sprint's behalf,
provided the third-parties are subject to a non-disclosure
agreement.
15.0 USE OF PRODUCTS
(a) The Products purchased under this Agreement may either be used
by Sprint or Sprint may sell, lease, sublicense or distribute
in any manner the Equipment or Software directly to its
Customers. Supplier licenses to Sprint and authorizes Sprint
to sublicense to Customers the right to use any intellectual
property, if any, contained in the Products for use by Sprint
and its customers under this Agreement.
(b) Sprint may make copies of Product documentation if Sprint
reproduces Supplier's proprietary notice on each copy.
16.0 LIABILITY AND INDEMNIFICATION
(a) Supplier and Sprint agree to release, irrevocably and forever
each other, and will defend, pay all judgments, expenses, and
costs (including attorney fees) and generally indemnify,
defend and hold each other harmless from all liability, suit,
claim or proceeding ("claims") resulting from the performance
or non-performance of this Agreement brought against either
party by any person for any damage, loss or destruction of
any kind, including, without limitation, loss to any property
or for any personal injury, including, without limitation,
death, defamation and invasion of privacy, to any person,
including without limitation any personnel of Sprint or
Supplier if the loss, destruction, injury or death results or
allegedly results, in whole or in part, from the act,
negligence, error, omission or willful misconduct or breach of
this Agreement by Supplier or Sprint.
(b) Supplier agrees to handle and defend all claims brought
against Sprint or its Customers, including without limitation,
Sprint's lessees, bailees, transferees and assigns, so far as
based on any claim that the work or Services performed, or the
Products furnished or manufactured by Supplier in the course
of this Agreement or any resulting use or sale of any work,
Services or Products constitutes an infringement of any patent
or copyright of any country, or misappropriation of any trade
secret, or constitutes a breach of any moral right, right of
publicity, or intellectual property right.
(c) If the sale or use of the Products or Services is enjoined,
Supplier must, at Supplier's option and Supplier's expense,
either:
(i) procure for Sprint and its Customers the right to use
the Products or Services; or
(ii) replace the Products or Services with equivalent
non-infringing Products or Services; or
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(iii) modify the Products and Services so they become
non-infringing; or
(iv) remove the Products or Services and refund the
purchase price, including transportation,
installation, removal and other incidental charges.
(d Sprint will notify Supplier in writing of any claims, and will
provide information, assistance and authority for Supplier's
handling and defense of the claim, all at Supplier's expense.
(e) Other than the parties's indemnification obligations under
section 16 of this agreement, neither party will be
responsible to the other for: i) except for indemnifications
made under Section 16b, special, indirect or consequential
loss or damage (including lost data) whether or not such loss
or damage is caused by the fault or negligence of that party,
its employees, agents or subcontractors, ii) for procurement
of substitute goods, technology of services, iii) except for
indemnification obligations under Section 16b, any amounts in
excess, in the aggregate, *** This section does not limit
liability for bodily injury to a person.
17.0 INSURANCE
(a) Supplier will obtain and maintain during the term of this
Agreement, with financially reputable insurers licensed to do
business in all jurisdictions where Product or Services are
delivered or performed and that are reasonably acceptable to
Sprint, not less than the following insurance:
(i) Workers' Compensation as required under any Workers'
Compensation or similar law in the jurisdiction where
the Product is manufactured or work is performed with
an employer's liability limit of not less than
$500,000 per accident; and
(ii) Commercial General Liability, including Product
Liability Insurance and Contractual Liability and
Products/Completed Operations Liability, with a limit
of not less than $1,000,000 combined single limit per
occurrence for bodily injury, personal injury, and
property damage liability, naming Sprint as an
additional insured;
(iii) Business Auto liability insurance covering the
ownership, maintenance or use of any owned, non-owned
or hired automobile with minimum limits of one
million dollars ($1,000,000) combined single limit
per accident for each bodily injury, including death,
and property damage liability, naming Sprint as an
additional insured; and
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*** Confidential Information has been omitted and filed separately with the
Securities and Exchange Commission.
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(iv) "All Risk" Property Insurance covering not less than
the full replacement cost of Supplier's personal
property while installing, training, or servicing on
Sprint or Customer premises.
(b) Certificates of Insurance. Supplier must, as a material
condition of this Agreement, prior to commencement of any work
and prior to any renewal of insurance, deliver to Sprint a
certificate of insurance, satisfactory in form and content to
Sprint, evidencing that the above insurance, is in force and
will not be canceled or materially altered without first
giving Sprint 30 days' prior written notice.
(c) Nothing contained in this Section 17 limits Supplier's
liability to Sprint to the limits of insurance certified or
carried.
18.0 RIGHT OF AUDIT
Supplier will maintain all records pertaining to this Agreement for at
least 3 years after final payment. Sprint may audit, copy and inspect
the records at reasonable times during the term of this Agreement and
for the 3-year period to verify costs incurred. The audit will be
performed by an independent third party mutually agreed upon and paid
for by Sprint, unless issues related to costs charged Sprint or
Supplier's performance are discovered, in which case the Supplier will
incur the cost of the audit.
19.0 NOTICE
Any communication relating to this Agreement must be in writing and
reference the Contract Number and Order number, if applicable and sent
by certified mail, return receipt requested, telex, facsimile or
overnight mail to the following addresses or as may be later
designated by written notice of a party:
Sprint: Xxx Xxxxxxxxx
SPRINT
Switched Data Services
0000 Xxxx Xxxxxxx
Xxxxxx Xxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Copy: Xxx Xxxxxx
Lead Negotiator, Materials & Services Management
SPRINT
000 X. 000xx Xxxxxx
Xxxxxx Xxxx, XX 00000
- 14 -
15
CONTRACT NO.
Phone: 000-000-0000
Fax: 000-000-0000
With a copy of Default Notice to:
SPRINT LAW DEPARTMENT
0000 Xxxx Xxxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Supplier: Xxxxxxx Xxxxxx, VP Finance
VISUAL NETWORKS
0000 Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
20.0 ARBITRATION
(a) Any dispute arising out of or relating to this Agreement,
including any issues relating to arbitrability or the scope of
this arbitration clause, will be finally settled by
arbitration in accordance with the rules of the American
Arbitration Association applying the substantive law of Kansas
without regard to any conflict of laws provision. The
arbitration will be governed by the United States Arbitration
Act, 9 U.S.C. Section 1 et seq., and judgment upon the award
rendered by the arbitrator(s) may be entered by any court with
jurisdiction. The arbitration will be held in the Kansas
City, Missouri metropolitan area. The arbitrators are not
empowered to award damages in excess of compensatory damages
and each party waives any damages in excess of compensatory
damages. Notwithstanding the foregoing, Sprint or Supplier
may bring a claim for injunctive relief as provided in Section
12(e) in a court of competent jurisdiction without first
submitting the matter to Arbitration.
(b) Claims made by Supplier may only be brought against the Sprint
Affiliate which issued the Order giving rise to the claim.
21.0 FEDERAL REQUIREMENTS
(a) Sprint's Status as a Government Contractor. If Sprint or the
federal government determines that this Agreement supports
specific requirements included in a Sprint contract or
subcontract with the federal government, Supplier will be
subject to certain federal acquisition regulations ("FAR's")
contained in Sprint's contract or subcontract. Supplier will
be subject only to FAR's that must be included in all
subcontracts as a matter of law. The applicable FAR will be
attached to the affected Order.
- 15 -
16
CONTRACT NO.
(b) Small Business/Small Disadvantaged Business Reporting. If
this Agreement has subcontracting opportunities, Supplier will
make an accounting of dollars applicable to the Products and
Services purchased by Sprint that are subcontracted to firms
that are Small Businesses, Small Disadvantaged Businesses, or
Women-Owned Businesses under Small Business Administration
Regulations. These dollars will be reported annually in
writing to the following address:
Small Business Coordinator
SPRINT
000 X. 000xx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
22.0 GENERAL
(a) Ethics Code. Supplier agrees to comply with Sprint's Code of
Ethics, where applicable, a copy of which is attached to this
Agreement and is incorporated in this Agreement.
(b) Supplier Performance. Time is of the essence in Supplier's
performance under this Agreement. Sprint is not obligated to
pay for Products delivered or Services performed which do not
conform to Sprint's Order.
(c) Independence of Parties. Neither party is in a joint venture
with or partner or agent of the other. Neither party has the
authority to bind the other in any way. Both parties agree
not to make any commitment in the name of or which purports to
be binding on the other.
(d) Independent Contractor
(i) Supplier must comply with laws, regulations and
orders relating to equal employment opportunity,
workers' compensation, unemployment compensation and
FICA. Upon request, Supplier will furnish Sprint
with
its EEO policies and procedures, verification of
workers' compensation, unemployment compensation,
FICA and the number of hours any individual performs
Services for Sprint within any 12 consecutive month
period.
(ii) Supplier, its subcontractors, employees or agents are
independent contractors for all purposes and at all
times. Supplier has the responsibility for, and
control over, the means and details of performing the
Services, subject to Sprint's inspection. Supplier
will provide all training, hiring, supervising, hours
of work, work policies and procedures, work rules,
compensation, payment for expenses and discipline and
termination of its employees.
- 16 -
17
CONTRACT NO.
(iii) Sprint will incur no responsibility or obligation to
employees, agents, subcontractors or other parties
utilized by Supplier to perform the Services set
forth in this Agreement. Such person or parties
will, at all times, remain employees, agents or
subcontractors (whichever is applicable) of Supplier.
(iv) Supplier is solely responsible for payment of wages,
salaries, fringe benefits and other compensation of,
or claimed by, Supplier's employees including,
without limitations, contributions to any employee
benefit, medical or savings plan and is responsible
for all payroll taxes including, without limitation,
the withholding and payment of all federal, state and
local income taxes, FICA, unemployment taxes and all
other payroll taxes. Supplier is also solely
responsible for compliance with applicable Workers'
Compensation laws with respect to maintenance of
workers' compensation coverages on Supplier's
employees. Supplier will indemnify and defend Sprint
from all claims by any person, government or agency
relating to payment of taxes and benefits, including
without limitation, any penalties and interest which
may be assessed against Sprint. Supplier will
similarly indemnify and defend Sprint from all claims
by any person or governmental agency which arise
directly or indirectly from any failure by Supplier
to comply with applicable Workers' Compensation laws
with respect to maintenance of workers' compensation
coverage on Supplier's employees.
(v) If Sprint determines that a Supplier-provided
employee, agent or subcontractor is not providing
satisfactory service, Sprint will advise Supplier and
may require Supplier to remove that individual or
subcontractor. Sprint will only pay for work
actually performed by the removed individual or
subcontractor prior to Sprint's notice for removal
and not for transportation or per diem costs
associated with replacing the individual. Supplier
will submit additional resumes to Sprint for purposes
of filling a vacancy at no additional charge.
(vi) Supplier and Sprint will require its employees,
agents and subcontractors to comply with the terms
and conditions of this Agreement.
(f) Survival. Numbered provisions 9, 10 ,11, 12, 13, 14, 15, 16,
17, 18, 20, 22(j) and (k) will survive the expiration or
termination of this Agreement, as well as provisions in this
Agreement that by their content are intended to survive the
performance, termination or cancellation of this Agreement.
(g) Severability. If a provision of this Agreement is
unenforceable, the remaining provisions will remain in effect,
to be construed as if the unenforceable provision were
originally deleted.
- 17 -
18
CONTRACT NO.
(h) Waiver. The waiver of a breach of any term of this Agreement
will not constitute the waiver of any other breach of the same
or any other term.
(i) Assignment. Neither party may assign all or any part of this
Agreement without the prior written notice of the other, which
may not be unreasonably withheld, except Sprint may assign
this Agreement to any Sprint controlled Affiliate without
Supplier's consent.
(j) Governing Law. This Agreement will be governed by and
construed in accordance with the laws of the State of Kansas,
without regard to any conflict of laws provision therein.
(k) Publicity. Except as required by law or this Agreement,
neither party will, without the other party's prior written
consent, which shall not be unreasonably withheld:
(i) make any news release, public announcement, denial or
confirmation of this Agreement or its subject matter;
or
(ii) in any manner advertise or publish the fact of this
Agreement
(l) Remedies. Remedies available to either party under this
Agreement are cumulative and may be exercised concurrently or
separately. The exercise of any one remedy is not an election
of that remedy to the exclusion of other remedies. The rights
and remedies of the parties in this Agreement are not
exclusive and are in addition to any other rights and remedies
available in law or in equity.
(m) Security. Supplier warrants and agrees its employees, agents
and subcontractors will abide by Sprint's security
requirements provided by Sprint to Supplier for the designated
premises where services are performed under this Agreement.
Any security breach will be referred to Sprint's Corporate
Security department.
Supplier will be liable for any security breach resulting from
its failure to comply with Sprint Security requirements, and
will indemnify, defend and hold Sprint harmless for any loss
or damage arising out of or relating to any security breach.
(n) Weapons. Supplier is prohibited from carrying weapons or
ammunition onto Sprint's premises or using or carrying weapons
while performing work on Sprint's behalf or attending
Sprint-sponsored activities. Supplier further agrees to
comply with any postings or notices located at Sprint's
premises regarding safety, security or weapons.
23.0 ENTIRE AGREEMENT
This Agreement, including all Exhibits listed below, contains the
entire agreement between the parties with respect to the subject
matter contained. In the event of an
- 18 -
19
CONTRACT NO.
inconsistency between the terms of this Agreement and those of an
Order, the terms of this Agreement control. In the event of an
inconsistency between the body of this Agreement and the exhibits, the
body of this Agreement controls:
Exhibit A including any related Schedules:
Product and Cable prices to Sprint
Post Term Maintenance Support Fees
Post Warranty Equipment Warranty Fees
Installation Fees
Post Term Spare Parts Prices
Exhibit B: Sprint Transportation Routing Guide
Exhibit C: Supplier Affiliates and Distributors
Exhibit D: Warranty and Maintenance Services
Exhibit E: Supplier Support Obligations
- 19 -
20
CONTRACT NO.
SIGNED:
SPRINT/UNITED MANAGEMENT VISUAL NETWORKS COMPANY
/s/ Xxxx Xxxx /S/ Xxxxxxx Xxxxxx
-------------------------------- ----------------------------------
(SIGNATURE) (SIGNATURE)
XXXX XXXX XXXXXXX XXXXXX
-------------------------------- ----------------------------------
(PRINT NAME) (PRINT NAME)
VP - ENTERPRISE SERVICES CHIEF FINANCIAL OFFICER
-------------------------------- ----------------------------------
(TITLE) (TITLE)
8/22/96 8/20/96
-------------------------------- ----------------------------------
(DATE) (DATE)
/S/ XXXX XXXXXXX
--------------------------------
(SIGNATURE
XXXX XXXXXXX
--------------------------------
(PRINT NAME)
AVP - MATERIALS & SERVICES MGMT.
--------------------------------
(TITLE)
AUGUST 23, 1996
--------------------------------
(DATE)
- 20 -
21
CONTRACT NO.
EXHIBIT A, PRICING, SCHEDULE I
EXHIBIT 10.6 (SPRINT)
EXHIBITS
***.
-------------------------
*** Confidential Information has been omitted and filed separately with the
Securities and Exchange Commission.
22
CONTRACT NO.
EXHIBIT A, PRICING, SCHEDULE II
***
-------------------------
*** Confidential Information has been omitted and filed separately with the
Securities and Exchange Commission.
23
CONTRACT NO.
POST PRICING: EQUIPMENT EXTENDED WARRANTY PRICING
EXHIBIT A
After expiration of the Product 5-year warranty, Sprint may extend a
specific piece of Product's warranty by annually paying ***. For each
succeeding year, After Supplier agrees the pricing for the extended
warranty ***.
-------------------------
*** Confidential Information has been omitted and filed separately with the
Securities and Exchange Commission.
24
CONTRACT NO.
POST TERM SOFTWARE MAINTENANCE PRICING
EXHIBIT A
At Sprint's option at the end of the Term, Visual will offer Software
maintenance services under the terms of this Agreement at an annual
cost *** .
-------------------------
*** Confidential Information has been omitted and filed separately with the
Securities and Exchange Commission.
25
CONTRACT NO.
INSTALLATION
EXHIBIT A
Visual will install the ASE hardware for *** per ASE. Installation
will be done by Visual's contractor. Services related to configuring,
tuning or customizing a customer installation will be at ***.
-------------------------
*** Confidential Information has been omitted and filed separately with the
Securities and Exchange Commission.
26
CONTRACT NO.
POST TERM SPARE PARTS PRICING
EXHIBIT A
Visual will offer spare parts at the end of the term *** .
-------------------------
*** Confidential Information has been omitted and filed separately with the
Securities and Exchange Commission.
27
CONTRACT NO.
TRANSPORTATION ROUTING GUIDE
ROUTING: The carriers listed below shall be used for the inbound and outbound
movement of materials to, from, and between Spring Corporation locations and
suppliers.
BILLING: All freight charges which are directly, or indirectly, the
responsibility of Sprint, Sprint International, Sprint Services and Sprint
Telemedia should be billed third party to Sprint Accounts Payable, X.X. Xxx
0000, Xxxxxx Xxxx, XX 00000. Purchase of insurance coverage from transportation
carriers is NOT authorized.
DOCUMENTATION: All shipping documents should reference Purchase Order, Work
Order, or Cost Center number. INTERNATIONAL PAPERWORK SHOULD BE VERIFIED BY
SPRINT'S TRANSPORTATION DEPARTMENT PRIOR TO SHIPMENT.
COMPLIANCE: Failure to comply with Sprint's Transportation Routing Guide
Instructions will result in excess freight chargebacks to your company.
Shipments routed by means other than the guidelines within will be charged back
to the supplier at 50% of the total transportation cost. PENALTIES WILL BE
ENFORCED ON ALL SHIPMENTS BEGINNING May 1, 1995.
SPRINT TRANSPORTATION: Please refer any questions to Sprint's Transportation
Department to the following Transportation Specialist:
***
SMALL PACKAGE SURFACE ROUTING UNDER 150 LBS. TOTAL
(Including to and from Canada)
AUTOMATED RECEIVING LOCATIONS:
If shipments meet UPS guidelines and the materials are going to one of the
receiving locations below, see UPS Consignee Building:
0000 Xxxxxxx Xx. 0-X Xxxxxxx Xxxxxxxxxx 00000 0000 Xxxxxxxx Xx. Xx.Xxxxx Xxxxxxxx 00000
0000 Xxxx Xxxx Xxxxxx Xxxxxxx Xxxxxxxxxx 00000 0000 Xxxx Xxxx. Xxxxxx Xxxx Xxxxxxxx 00000
0000 00xx Xx. Xxxxxx Xxxxxxxxx 00000 000/000 X. 000xx Xx. Xxxxxx Xxxx Xxxxxxxx 00000
0000 Xxxxxxxxxx Xx. Xxxxxxx Xxxxxxx 00000 0000 Xxxx Xx. Xxxxxx Xxxx Xxxxxxxx 00000
0000 X. Xxxxx Xx. Xxxxxxxx Xxxxxxxx 00000 00 Xxxxxx Xx. Xxxxxx Xxx Xxxxxx 00000
0000 Xxxxxxx Xxx. Xxxxxxxx Xxxxxx 00000 0 Xxxxxxxxxxxxxx Xx. Xxxxxxxx Xxx Xxxx 00000
0000 Xxxxxxx Xxxx. Xxxxxxxx Xxxx Xxxxxx 00000 0000 X. Xxxxxxxx Xxxxxx Xxxxx 00000
0000 Xxxxxxx Xxxxxxxx Xxxx Xxxxxx 00000 00000 Xxxxx Xx. Xxxxxxx Xxxxxx Xxxxx 00000
00000 X. 00xx Xx. Xxxxxx Xxxxxx 00000 00000 Xxxxxxx Xxxxxx Xxxxxx Xxxxxxxx 00000
UPS CONSIGNEE BILLING:
1. Inbound materials to the above locations should be routed via 4. Sprint's six digit cost center number must be on
UPS Consignee Billing. each package's address label. This number
can be found on the Express Buy Order Form or on
the distribution account line of the Purchase
Order. Example: Dist. Acct.: 01USS 01
(XXXXXX) 61200000 000
2. If your company is not set up to ship via Consignee Billing, 5. These packages will be picked up with your
please contact UPS at 800/000-0000 to request a Consignee regularly scheduled UPS pickup. No additional
Billing Kit. pickups are required.
3. Each individual package must meet UPS size and weight
-------------------------
*** Confidential Information has been omitted and filed separately with the
Securities and Exchange Commission.
28
CONTRACT NO.
restrictions:
- 150 pounds maximum weight per pkg. UPS Consignee Billing Desk 800/354-7527
- 130 inches combined length & girth
- 108 inches maximum length
SMALL PACKAGES FOR OTHER RECEIVING LOCATIONS:
1. If the receiving location on the purchase order is NOT listed 2. ROADWAY PACKAGE SYSTEM or UNITED PARCEL
above, shipping charges should be added to the invoice for SERVICE may be used for shipments to locations
goods listed on the Purchase Order. NOT listed above.
ROUTE SHIPMENTS WHICH TOTAL 151 POUNDS OR GREATER VIA LTL CARRIERS
29
CONTRACT NO.
TRANSPORTATION ROUTING GUIDE
LTL SURFACE ROUTING OVER 150 LBS. TOTAL
(Including to and from Canada - Region map below)
Shipments above 10,000 lbs. require authorization by Sprint's
Transportation Department prior to shipment
NATIONWIDE LONG HAUL LTL CARRIERS: Consolidated Freightways, Yellow Freight
System
REGIONAL SHORT HAUL LTL CARRIERS:
NORTHWEST MIDWEST NORTHEAST
--------- ------- ---------
Silver Eagle American Freightways Xxxxxx Express
Con-Way Central TNT Red Star
WEST SOUTHWEST SOUTHEAST
---- --------- ---------
Con-Way Western American Freightways AAA Xxxxxx
Con-Way Southern Express Xxxxxxx Express
Southeastern Freightways
Con-Way Southern Express
Regional LTL (Less-than-truckload) shipments are defined as short haul
interstate LTL movements, normally under 500 miles which occur either within a
region, or between a region and the bordering states of a neighboring region or
bordering Canadian Provinces.
DEFINED REGIONS FOR LTL FREIGHT
[Map of United States Appears here]
ELECTRONIC (PADDED) VAN SHIPMENTS
BEKINS VAN LINES (ALL POINTS) 816/000-0000 000/767-1120
NORTH AMERICAN VAN LINES (BELTMANN) 913/000-0000 000/869-6114
UNITED VAN LINES (XXX-XXXXXX) 913/000-0000 000/829-0049
30
CONTRACT NO.
DOMESTIC AIR EXPRESS AND AIR FREIGHT ROUTING
(See Geographic Routing Exceptions for Canada, Alaska, Hawaii, Puerto Rico and
International shipments)
Shipments above 1,000 lbs. require authorization by Sprint Transportation prior
to shipment
WEIGHT SAME DAY NEXT DAY 2ND DAY 3-5 DAYS INTERNATIONAL
LTR - 50 QUICK AIRBORNE EXPRESS* UPS GROUND AIRBORNE EXPRESS
FEDERAL EXPRESS DHL WORLDWIDE*
00-00 XXXXXXX XXXXX XXXXX
XXXXXXXXX WORLDWIDE
71+ BURLINGTON BURLINGTON CALL
AMERTRANZ TRANSPORTATION
PILOT AIR FREIGHT FOR INTERNATIONAL
ROUTING GUIDE
AND INSTRUCTIONS
Air routing is only authorized when expedited service is requested by Corporate
Procurement to meet specific delivery requirements. Packages shipped via air,
without authorization from Corporate Procurement, by the supplier will result
in a 50% chargeback, to that supplier, of the total transportation cost.
GEOGRAPHIC EXCEPTIONS (AIR & SURFACE)
(Inbound and Outbound)
CANADA CANADA ALASKA & PUERTO
WEIGHT (Air) (Surface) HAWAII RICO
LETTER AIRBORNE UPS AIRBORNE EXPRESS*
- DHL WORLDWIDE GROUND FEDERAL EXPRESS
70 FEDERAL EXPRESS
71+ XXXXX CONSOLIDATED BURLINGTON AMERTRANZ
WORLDWIDE FREIGHTWAYS AMERTRANZ BURLINGTON
BURLINGTON YELLOW FREIGHT
SYSTEM
CONTACT INFORMATION
CARRIER CUSTOMER SERVICE CONTACT
Airborne Express* 800/247-2676
AmerTranz Worldwide Contact local station
Bekins Van Lines 800/767-1120 or 816/763-6300, Customer Sercvice
Burlington Contact local station
DHL Worldwide Express* 800/345-3601, Xxxxxx Xxxxxxxx
Xxxxx Worldwide 800/443-6379
Federal Express 800/238-5355
LTL Carriers Contact local terminal - customer service/dispatch
North American Van Lines 800/869-6114 or 913/888-9105, Xxxxxx Xxx
Pilot Air Freight 800/447-4568 or local station
Quick International Courier 800/488-4400, extension 475
Sprint Transportation Dept. ***
*Preferred Carrier for specific service requirement
-------------------------
*** Confidential Information has been omitted and filed separately with the
Securities and Exchange Commission.
31
CONTRACT NO.
SPRINT AFFILIATE LIST
Name Address Telephone No.
CORPORATE
***
SPRINT CORPORATION 0000 Xxxxxxx Xxxxxxx Xxxxxxx,
Xxxxxxxx, Xxxxxx 00000
SPRINT/UNITED MANAGEMENT COMPANY 0000 Xxxxxxx Xxxxxxx Xxxxxxx,
Xxxxxxxx, Xxxxxx 00000
LONG DISTANCE DIVISION
SPRINT COMMUNICATIONS COMPANY L.P. 0000 Xxxx Xxxxxxx, Xxxxxx Xxxx, XX 00000-0000
MAJORCO, L.P. (Sprint Spectrum) 0000 Xxxxx Xxxxxx, Xxxxxx Xxxx, XX 00000
GLOBAL ONE 00000 Xxxxxxx Xxxxxx Xxxxx, Xxxxxx, XX 00000
Sprint International of Canada, Inc. 00000 Xxxxxxx Xxxxxx Xxxxx, Xxxxxx, XX 00000
Sprint International Mexico S.A. de C.V. 00000 Xxxxxxx Xxxxxx Xxxxx, Xxxxxx, XX 00000
ADN (Alcatel) 00000 Xxxxxxx Xxxxxx Xxxxx, Xxxxxx, XX 00000
LOCAL DIVISION
CENTRAL TELEPHONE - ILLINOIS 0000 Xxxxxxx Xxxx, Xxxxxxx, Xxxxxxxx 00000
CENTRAL TELEPHONE - NEVADA 000 X. Xxxxxx Xxxx, Xxx Xxxxx, Xxxxxx 00000
MID-ATLANTIC TELECOM 00000 Xxxxxxx Xxxx., Xxxx Xxxxxx, X.X. 00000-0000
Sprint/Carolina Telephone 000 Xxxxxxx Xxxx., Xxxxxxx, X.X. 00000
Xxxxxx/Xxxxxx - Xxxxx Xxxxxxxx 000 Xxxxx Xxxxxx X.X., Xxxxxxx, X.X. 00000-0000
Sprint/Centel - Virginia 0000 Xxxxxxxxx Xxxx, X.X. Xxx 0000,
Xxxxxxxxxxxxxxx, XX 00000
Sprint/United Telephone - Southeast 000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxx 00000
UNITED TELEPHONE - EASTERN 0000 Xxxxxx Xxxxxx Xxxx, Xxxxxxxx, XX 00000-0000
United Telephone - New Jersey 0000 Xxxxxx Xxxxxx Xxxx, Xxxxxxxx, XX 00000-0000
United Telephone - Pennsylvania 0000 Xxxxxx Xxxxxx Xxxx, Xxxxxxxx, XX 00000-0000
UNITED TELEPHONE OF FLORIDA 000 Xxxx Xxxxxx Xxxxx, Xxxxxx, Xxxxxxx 00000
Vista-United Telecommunications 0000 Xxxxxx Xxxx Xxxx, Xxxx Xxxxx Xxxxx, XX
UNITED TELEPHONE MIDWEST 0000 Xxxx 000xx, Xxxxxxxx Xxxx, Xxxxxx 00000
United Telephone - Kansas 000 Xxxxx Xxxxxxxxxx, Xxxxxxxx Xxxx, Xxxxxx 00000
Xxxxxx Telephone - Minnesota 000 Xxxxxx Xxxx, Xxxxxx, Xxxxxxxxx 00000
United Telephone - Missouri (East) 000 Xxxxxxx Xxxxxx, X.X. Xxx 000, Xxxxxxxxx Xxxx,
Xxxxxxxx 00000
United Telephone - Missouri (West) 000 Xxxx Xxxxxx, X.X. Xxx 00, Xxxxxxxxxxx, Xxxxxxxx 00000
United Telephone - Nebraska 0000 Xxxxxx X, Xxxxxxxxxxx, Xxxxxxxx 00000
Xxxxxx Telephone - Texas 0000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, XX 00000
UNITED TELEPHONE - NORTH CENTRAL 000 Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000
United Telephone - Indiana X.X. Xxx 000 0000 X. Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxx 00000
United Telephone - Ohio P.O. Box 3555, 000 X. Xxxxxxxx Xxxx, Xxxxxxxxx, Xxxx 00000
UNITED TELEPHONE - NORTHWEST 000 Xxxxx Xxxxxx, Xxxx Xxxxx, Xxxxxx 00000
-------------------------
*** Confidential Information has been omitted and filed separately with the
Securities and Exchange Commission.
32
CONTRACT NO.
COMPLEMENTARY DIVISION
SPRINT NORTH SUPPLY 000 Xxx Xxxxxxx Xxxxxxx, Xxx Xxxxxxx,
Xxxxxx 00000
SPRINT PUBLISHING & ADVERTISING 0000 Xxxx 000xx, Xxxxxxxx Xxxx, Xxxxxx 00000
33
CONTRACT NO.
WARRANTY AND MAINTENANCE SERVICES
EXHIBIT D
(a) Equipment that fails within the warranty period will be returned to
Supplier. Sprint will obtain a Returned Material Authorization
("RMA") from Supplier prior to returning. Supplier will provide the
RMA within *** of Sprint's request.
(b) Engineering Change Notices ("ECNs") will be placed, based on the
severity of the problem, into one of 5 classes as follows:
(i) Class 1. The ECN generated change is incorporated into all
existing Products, including Products in the field. This
change must be made when the ECN is received on the
manufacturing floor on the cut-in date assigned and shipments
will be stopped until the ECN is implemented. ECNs that are
safety related will be implemented by Supplier on any affected
Products sold to Sprint at no additional charge, provided
Sprint makes the affected Product available for repair.
Supplier will pay all shipment charges resulting from an
agreed method of Product repair. If the Product must be
shipped back to Supplier in order to implement the ECN,
Supplier will provide and install at no cost an equivalent
Product on a loaned basis until the original Product is
returned to Sprint and is operational.
(ii) Class 2. Rework is required in-house from the origin of the
Product. This change will begin on the cut-in date assigned.
(iii) Class 3. Change will be incorporated in all new production
starts and in new Purchase Orders. Change will be
incorporated into new builds as of the cut-in date assigned.
(iv) Class 4. These changes indicate one of the following: (a) a
document change only to the records of a Product, or (b) a
change in the initial release of some phase of a new Product
design.
(v) Class 5. Indicates a Software change.
(c) Supplier must provide Sprint a written report no less than quarterly
stating:
***
In addition, Supplier must provide Sprint no less than quarterly a
summary of ECNs that affect form, fit, function or safety of the
Products. Supplier will provide a copy of an ECN upon Sprint's
request. In addition, Supplier must provide Sprint quarterly with any
Technical Bulletins that it issues.
-------------------------
*** Confidential Information has been omitted and filed separately with the
Securities and Exchange Commission.
34
CONTRACT NO.
MAINTENANCE:
During the Term of this Agreement, Supplier will provide Software maintenance
Services as described in Exhibit E or under any maintenance following the Term.
For five years after purchase of each Equipment unit, Supplier will provide
warranty support for all Equipment.
(a) During the term of this Agreement, Supplier will provide software
maintenance services as described in Exhibit E. For five years after
purchase of each Equipment unit, Supplier will provide warranty
support. The fee for extended Equipment warranty after expiration of
the five year warranty period is set forth in Exhibit A.
(b) Software maintenance will be as set forth in Exhibit E.
(c) The diagnostic software needed to maintain the Products is included in
the Products.
(d) Supplier will include with each Product a set of the Documentation
that it normally provides with that Product. However, if Supplier
converts the Documentation into a Sprint format, or if Sprint provides
Supplier with copies of the Documentation, Supplier will include the
Sprint version. Sprint will pay additional reasonable costs required
to maintain a separate Sprint format of the documentation.
SPARE PARTS:
(a) During the term of this Agreement and for a period of 5 years
following discontinuance of a Product, Supplier will make all
necessary spare parts and Products, or their functional equivalent,
available for purchase by Sprint. Supplier will also make available
information reasonably required to allow functionally equivalent
Products and spare parts to perform with Products previously
purchased. The prices charged for the spare parts and Products
following the termination of this Agreement will be Supplier's then
current published list prices less a discount as set forth in Exhibit
A for existing Supplier Product.
(b) If Supplier intends to either (i) replace a Product with one that is
functionally equivalent or better or (ii) discontinue a Product,
Supplier will provide Sprint with at least 3 months prior written
notice.
35
CONTRACT NO.
SUPPLIER SUPPORT OBLIGATIONS
EXHIBIT E
1.0 TRAINING:
(a) Supplier will train Sprint representatives with respect to
sales, operation, configuration, installation, service,
maintenance and support of the Products, as well as new
Products, ("Sales and Technical Training"). The Sales and
Technical Training will take place at an agreed facility at
agreed times. Sprint may have *** in each session. Supplier
will provide the Technical Training to Sprint during *** at
Sprint's facility at agreed times as requested by Sprint.
Included in these training sessions may be Sprint's own
trainers. There will be *** to Sprint for this training and
the training documentation. Supplier will provide *** at
Supplier's location ***.
(b) Supplier will provide Sprint with *** copies of its current
training catalog within *** of the Effective Date.
Thereafter, Supplier will provide Sprint with ***
copies of its then current training catalog:
(i) whenever Supplier provides such catalog to other
resellers, distributors and/or Customers, or
(ii) *** whichever date comes first.
Sprint will provide Supplier with the names of the recipients
of this catalog. Sprint may reproduce copies for internal
distribution. In addition, when Supplier provides Sprint with
a copy of a new training catalog, Supplier will provide
additional training as Sprint requests, at a time and place
agreed upon and at the prices set forth in Exhibit A for
training.
(c) Sprint may copy, modify, and use the materials provided to it
by Supplier during a training session, if Sprint reproduces
the proprietary notice contained in the original document.
Sprint may use these materials to train Sprint employees,
Customers and third parties with respect to the Products.
2.0 DOCUMENTATION:
Supplier will provide Sprint with the number of copies of the
Documentation set forth below within *** of the Effective Date.
Supplier will provide Sprint with other Documentation ordered at the
prices set forth in Exhibit A. If Supplier modifies any Documentation,
Supplier will notify Sprint of the changes and provide Sprint with a
copy of the modified Documentation. Documentation is to be made
available in both hard and soft copy form.
-------------------------
*** Confidential Information has been omitted and filed separately with the
Securities and Exchange Commission.
36
CONTRACT NO.
3.0 MARKETING & SALES:
Sprint will feature the "Visual Up Time" and "On Ramp" Product lines
as Sprint's preferred product for Sprint's Customers.
*** Sprint agrees that sales and support personnel covering the
territory will receive detailed information regarding Supplier's
Products within *** of the beginning date of this Agreement.
Sprint will make opportunities available for Supplier's
representatives to present Product and sales training seminars to
groups of Sprint's sales and support representatives to keep them
abreast of current developments.
Where appropriate, Sprint agrees to incorporate portions of Supplier's
sales presentation regarding the Products into Sprint's sales
presentations relative to network management.
Sprint agrees to make reasonable efforts to feature Supplier Products
in marketing collateral which Sprint produces and distributes relating
to network management. Furthermore, Sprint agrees to make reasonable
efforts to include Supplier Products in appropriate sales training of
their field sales force, direct mailings, product fairs and
demonstrations to Sprint's sales force and customers.
4.0 INSTALLATION:
If requested by Sprint, Supplier will install the Products at Customer
locations. The fee for this service is set forth on Exhibit A.
5.0 TECHNICAL ASSISTANCE AND TELEPHONE SUPPORT:
(a) During the term of this Agreement, Supplier will provide
technical assistance in the form of a help desk, remote
diagnostics and network emergency assistance to Sprint with
respect to the use, maintenance, and installation of the
Products. These Services will be available 24 hours per day,
every day of the year through a Sprint toll free number.
Supplier will respond within *** to a request for assistance
made between the hours of 5:00 a.m. and 5:00 p.m., Supplier's
local time, Monday through Friday.
In addition, Supplier will respond within *** to any request
for emergency support, even if made outside of those hours.
Supplier will maintain a system that records Sprint's requests
for support. ***
-------------------------
*** Confidential Information has been omitted and filed separately with the
Securities and Exchange Commission.
*** Confidential Information has been omitted and filed separately with the
Securities and Exchange Commission.
37
CONTRACT NO.
Sprint shall be responsible for 1st level support of its
customers and distribution of maintenance Software releases.
First level support includes:
- providing initial installation and configuration Services
- answering most installation, use and problem queries from
Sprint's customers
- including provisions of existing workarounds to their
customers.
- where practical, replicating an end-user customer problem
and sending all relevant technical data on the replication to
Visual.
- distributing Software updates to their end users
(b) In addition to the technical assistance set forth in Section
5(a), Supplier must provide toll free telephone support to
Sprint for other issues affecting the Product, such as
training. This support will be provided between the hours of
8:00 a.m. and 5:00 p.m., Supplier's local time, Monday through
Friday.
(c) Supplier will, within *** of the Effective Date, provide
Sprint with a list of recommended types and models of tools
and test gear needed to provide Product installation Services
and technical assistance. Supplier must give Sprint written
notice within *** of any change made to the list.
(d) Supplier will provide Product updates that Supplier in its
discretion, makes generally available. Product updates
consist of copies of published revisions to the printed
documentation and copies of revisions to the machine readable
Software which are not designated by Supplier as Products for
which it charges a separate fee. All Product updates provided
to Sprint shall be governed by the terms of the Agreement.
