EXHIBIT 10.2 NON-EXCLUSIVE OEM AGREEMENT
CONFIDENTIAL TREATMENT
NON-EXCLUSIVE OEM AGREEMENT
THIS NON-EXCLUSIVE OEM AGREEMENT is entered into on May 1, 2001 (the "Effective
Date") between Oasys Telecom, Inc., a California corporation with offices at
0000 Xxxx Xxxxxx Xxxxxxx, Xxxxxxxxxx, XX 00000 ("Oasys"), and Larscom
Incorporated, a Delaware corporation with offices at 0000 XxXxxxxxxx Xxxxx,
Xxxxxxxx, XX 00000 ("Larscom").
R E C I T A L S
- - - - - - - -
A. Oasys has developed and manufactures telecommunications equipment, including
products known as EXchange Mux(R) and EXchange Mux(R) II, as more particularly
described on Exhibit A to this Agreement.
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B. Larscom desires to market and distribute the Oasys Product, either separately
or as bundled with its own telecommunications equipment (collectively, the
"Larscom Equipment"), on a private label basis.
A G R E E M E N T
- - - - - - - - -
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the
parties hereby agree as follows:
1. DEFINITIONS
The following capitalized terms shall have these meanings throughout
this Agreement.
1.1 "Customer Documentation" shall mean the user and technical
manuals and other documentation that Oasys will make available
with the Oasys Product and all updates thereof.
1.2 "Intellectual Property Rights" shall mean all patents, trade
names, trade secrets, trademarks, service marks, copyrights, mask
work rights, trade dress rights and other similar proprietary
rights.
1.3 "Order" shall mean a written or electronic purchase order placed
by Larscom to Oasys for purchase of the Oasys Product.
1.4 "Software" shall mean the software and firmware developed or
licensed by Oasys and included in the Oasys Product as listed in
Exhibit A.
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1.5 "Specifications" shall mean the operating requirements and
functionality of the Oasys Product as attached hereto as Exhibit
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B attached hereto and incorporated herein by this reference.
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1.6 "Oasys Product" shall mean the private label version of each
product developed by Oasys listed on Exhibit A and all related
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Customer Documentation.
1.7 "Technical Information" shall mean manufacturing drawings,
specifications, schematics or other drawings pertinent to the
most current revision level of manufacturing of the Oasys
Product; copies of all inspection, manufacturing, test and
quality control procedures and any other work processes; tooling
and tooling designs; Oasys history files; and all other
information and/or technology deemed necessary by Oasys to allow
Larscom to exercise any manufacturing rights provided under this
Agreement.
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CONFIDENTIAL TREATMENT
1.8 "Larscom Equipment" shall mean the telecommunications
equipment manufactured, marketed and/or distributed by Larscom
at any time during the Term (as defined below).
1.9 "Term" shall mean the time period commencing upon the
Effective Date and, unless earlier terminated hereunder,
continuing for a ***** period thereafter.
1.10 "Territory" shall mean the *****.
2. SCOPE OF AGREEMENT
2.1 General. This Agreement sets forth the terms and conditions
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under which Oasys shall sell, license and support the Oasys
Product. The Oasys Product shall be regarded as "Original
Equipment Manufacturer" products that shall either be sold
separately or bundled with Larscom Equipment for resale solely
by or on behalf of Larscom, whether directly or through its
distributors, resellers or independent sales representatives.
Larscom may not distribute, resell or sublicense the Oasys
Product or any portion thereof for distribution by or through
any other OEM manufacturer. The Oasys Product shall be
marketed, serviced and supported by Larscom's field
organization or Larscom's affiliates or agents, subject to the
marketing, service and support obligations of Oasys hereunder.
2.1.1 Restrictions. Larscom may not modify the Oasys
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Product in any way or add any functionality's
thereto.
2.1.2 Ownership. Except for the limited rights expressly
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granted herein, as between the parties, Oasys retains
all right, title and interest in and to the
technology and all related Intellectual Property
Rights and proprietary information incorporated into
the Oasys Product or any other hardware or software
product otherwise distributed or licensed to Larscom
hereunder.
2.2 Appointment. Oasys hereby appoints Larscom to act as a
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non-exclusive distributor of the Oasys Product within the
Territory (including distribution through Larscom's
distributors, resellers or independent sales representatives);
provided that (i) Oasys may continue to market, sell and
distribute the Oasys Product in the Territory on its own
behalf, either directly through its own sales force or
indirectly through independent sales representatives, and (ii)
Oasys may, at its option, distribute the Oasys Product on a
private label basis through other companies.
2.3 Channel Conflict Management. If either party becomes aware of
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any channel conflict hereunder, that party shall promptly
notify the other party and both parties shall work
cooperatively to offer the best solution for that customer.
During the Term, the parties shall work together proactively
to minimize the risk of channel conflict.
2.4 Other Products. Other products may be added to this Agreement
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from time to time on the mutual agreement of the parties.
2.5 Enhancement Requests. Larscom may from time to time request an
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enhancement to the Oasys Product. Oasys shall consider each
such enhancement request and respond to Larscom within 30 days
of the possibility of developing such enhancement. If Oasys,
in its sole and absolute discretion, determines to incorporate
such enhancement into the Oasys Product, the parties shall
negotiate in good faith the terms of the proposed enhancement
within 30 days after Oasys' acceptance of Larscom's proposal.
***** Confidential treatment has been requested for the redacted portions. The
confidential redacted portions have been filed separately with the Securities
and Exchange Commission.
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CONFIDENTIAL TREATMENT
2.6 Condition of Products. All Oasys Products shall be new except
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as otherwise provided by the parties.
3. SHIPMENT AND DELIVERY OF OASYS PRODUCTS
3.1 Orders. Each delivery of Oasys Products shall be initiated by
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an Order which must be accepted by Oasys to be effective;
provided that, if Oasys fails to respond to an Order within 10
business days, such order shall be deemed accepted.
3.2 Delivery Dates. Each Order shall specify the date on which the
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Oasys Products or Parts must be received by Larscom (the
"Delivery Date"). Larscom may schedule regular intervals for
deliveries by an appropriate Order setting forth the
intervals. At Larscom's sole expense, Larscom may utilize drop
shipment options to any designation specified by Larscom and
agreed upon by Oasys.
3.3 Shipment Requirements and Risk of Loss. All shipments of Oasys
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Products hereunder shall be F.O.B. Oasys' place of shipment.
Title to Oasys Products ordered hereunder shall pass from
Oasys to Larscom upon Oasys' delivery to Larscom's designated
delivery location. Oasys shall immediately advise Larscom of
any prospective failure to timely ship the specified quantity
of Oasys Products.
Each delivery of Oasys Products to Larscom shall include a
packing list which contains at least: (a) the Order number and
applicable Larscom part numbers; (b) the quantity of Oasys
Products shipped; and (c) the date of shipment.
3.4 Lead Time. The maximum lead time for the Delivery Date of any
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Oasys Products ordered by Larscom is 30 business days. Oasys
shall, for any proposed variance of the lead time, give
Larscom no less than 20 days' advance notice.
3.5 Packaging. Oasys shall preserve, package, handle and pack all
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Oasys Products so as to protect the Oasys Products from loss
or damage, in conformance with good commercial practice,
government regulations and other applicable standards. Static
protection shall be provided for Oasys Products requiring such
packaging. Normal Oasys Products will be packaged in
appropriate containers labeled with the Larscom xxxx pursuant
to Section 11.3 below.
Each package label shall include the following data: (i)
quantity; (ii) assembly number; (iii) serial number; and (iv)
revision of products in package.
4. PRICES, PAYMENTS, AND FORECASTS
4.1 Initial Fee. Larscom will pay a ***** fee of ***** to Oasys
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upon the execution of this agreement. However, if Oasys
Telecom terminates this agreement during the first ***** of
the initial term, except for breach, according to Section
13.2, Oasys will reimburse to Larscom a prorated amount of
this initial fee based on the number of months the Agreement
was effective.
4.2 *****. Upon execution of this Agreement, Larscom will place an
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initial order to Oasys consisting of ***** (or any
configurations of equivalent value) of Oasys Equipment (any
mix of Oasys Equipment indicated in Exhibit A). At this time
Oasys will invoice Larscom and Larscom will ***** Oasys for
this initial equipment. Delivery to Larscom of Oasys Equipment
specified in this initial order will be evenly spread over a
*****
***** Confidential treatment has been requested for the redacted portions. The
confidential redacted portions have been filed separately with the Securities
and Exchange Commission.
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CONFIDENTIAL TREATMENT
period beginning immediately for ***** equipment as indicated
in Exhibit A or over a ***** period beginning from the date of
availability for ***** unless mutually agreed to otherwise by
the parties.
4.3 List Prices. The list price for the Oasys Product is set forth
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in Exhibit A attached hereto and incorporated herein by this
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reference and shall remain in effect during the Term. All
costs of transportation and handling, including freight and
insurance, and all taxes, duties and other governmental
charges applicable to Larscom's purchase of Oasys Products
hereunder shall be billed to and paid by Larscom or Larscom
shall provide Oasys or the appropriate taxing authority with
an exemption certificate therefor.
4.3.1 Discounts. Oasys shall extend discount pricing to
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Larscom as set forth in Exhibit C, which discounts
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shall remain in effect during the ***** and any *****
(as defined below) and Larscom's sales volume for
purposes of calculating the applicable discount shall
be ***** over the ***** and any *****.
4.3.2 Changed Prices. If, during the Term or any Renewal
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Term, changed prices are put in effect by Oasys, such
prices shall apply to all Orders issued by Larscom
after the effective date of such price change.
4.4 Payment Procedure. Payment for Oasys Products shall be net 30
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days of shipment. Invoices outstanding 45 days after shipment
shall be subject to a late charge equal to the lesser of 1.5%
per month or the maximum amount permitted by law.
4.5 Rolling Forecast. Larscom shall furnish Oasys with a rolling
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six-month forecast on the first day of each calendar month
during the Term.
5. RETURN OF PRODUCTS
5.1 Return Materials Authorization. If any Oasys Product is
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defective or otherwise not in conformity with the requirements
of this Agreement (a "Noncomplying Oasys Products"), in
addition to its other rights and remedies hereunder, Larscom
may return the Noncomplying Oasys Products for replacement or
repair at Oasys's expense.
All Oasys Products returned by Larscom to Oasys, including
Noncomplying Oasys Products, shall be accompanied by a Return
Materials Authorization ("RMA"). Unless further verification
is reasonably required by Oasys, Oasys shall supply an RMA
within three business days of Larscom's request. If Oasys
fails to timely provide the RMA, Larscom may return the Oasys
Products without an RMA.
5.2 Return Charges. All Noncomplying Oasys Products returned by
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Larscom to Oasys, and all replacement or repaired Oasys
Products shipped by Oasys to Larscom to replace Noncomplying
Oasys Products, shall be shipped each way at Oasys' expense,
including transportation charges (round trip charges for
replacement or reworked Oasys Products). Notwithstanding the
foregoing, if Oasys determines that Oasys Products returned
hereunder do not constitute "Noncomplying Oasys Products,"
Larscom shall reimburse Oasys for any and all its shipping and
handling costs hereunder.
5.3 Repair Period. Oasys shall return the replacement or reworked
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Oasys Products as soon as possible but in no event later than
15 business days after receipt of the Noncomplying Oasys
Products from Larscom. If Oasys fails to return the
replacement or repaired Oasys
***** Confidential treatment has been requested for the redacted portions. The
confidential redacted portions have been filed separately with the Securities
and Exchange Commission.
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CONFIDENTIAL TREATMENT
Products to Larscom in a timely manner, Larscom may reject the
Noncomplying Oasys Products and obtain a full refund of all
costs paid by Larscom for the Oasys Products, without any
deductions.
5.4 Duty To Remove Marks. Oasys shall remove from all Oasys
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Products rejected, returned or not purchased by Larscom,
Larscom's name or any of Larscom's trademarks, tradenames,
insignia, part numbers, symbols or decorative designs prior to
any other sale, use, or disposition of such Oasys Products by
Oasys.
6 PROCESS OR DESIGN CHANGES
6.1 Notice Of Change. Oasys shall give Larscom at least 60 days'
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prior written notice of any change to the Oasys Product or its
Specifications affecting the form, fit and function of the
Oasys Product. On Larscom's reasonable request, Oasys shall
provide evaluation samples and other appropriate information
to Larscom.
6.2 Safety Standard Changes. Oasys shall immediately give notice
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to Larscom if any change, upgrade, or substitution is required
to make the Oasys Products meet applicable safety standards or
specifications, excluding any changes which do not affect the
Oasys Product's form, fit or function.
7. QUALITY AND WARRANTY
7.1 Quality Program. Oasys shall maintain an objective quality
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program for all Oasys Products supplied pursuant to this
Agreement. Oasys shall, upon Larscom's request, provide to
Larscom copies of Oasys' program and supporting factory test
documentation.
7.2 Larscom's Right To Inspect. Larscom shall have the right to
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inspect, at Oasys' plant, the Oasys Products and associated
nonproprietary manufacturing processes. Any inspection of
Oasys Products shall be prior to shipment. Manufacturing
processes may be inspected at any time during the Term.
7.3 Product Warranty. Oasys warrants for a period of ***** after
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shipment thereof that each Oasys Product, including the
associated embedded software, shall:
(a) Be manufactured, processed and assembled by Oasys or
by companies under Oasys' direction;
(b) Conform materially to its Specifications;
(c) Comply with governmental and industry certification
requirements, including UL, NEBS, FCC, CSA, and CE
Xxxx (where applicable) certifications, and all other
applicable federal, state and local laws and
regulations;
(d) Be free from material defects in material and
workmanship; and
(e) Be free and clear of all liens, encumbrances,
restrictions and other claims against title or
ownership.
(f) Be Year 2000 compliant.
7.4 Exceptions to Warranty Coverage. This warranty is contingent
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upon proper use of the Oasys Products in the application for
which they were intended as indicated in the Documentation,
and Oasys makes no warranty (express, implied or statutory)
for Oasys Products that are modified or subjected to accident,
misuse, neglect, unauthorized repair or improper testing or
storage.
***** Confidential treatment has been requested for the redacted portions. The
confidential redacted portions have been filed separately with the Securities
and Exchange Commission.
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CONFIDENTIAL TREATMENT
7.5 Software Warranty. Oasys warrants that it owns or has the
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necessary licenses to use the Software incorporated in the
Oasys Products, free of any and all restrictions, settlements,
judgments or adverse claims. Oasys warrants it has full power
and authority to grant Larscom the rights granted herein on a
worldwide basis.
7.6 EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, OASYS MAKES NO
OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, REGARDING ANY
OASYS PRODUCT, INCLUDING AS TO ITS MERCHANTABILITY OR FITNESS
FOR ANY PARTICULAR PURPOSE.
8. SERVICE AND SUPPORT
8.1 Customer Support. Larscom shall provide all direct first-tier
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and second-tier support to its customers. Oasys shall support
Larscom by telephone from 8:00 a.m. through 5:00 p.m., p.t.,
including direct dial into the equipment of any Larscom
customer at any location. On Larscom's reasonable request,
Oasys shall travel with Larscom to a Larscom customer site
and, if there proves to be a defect in the Oasys Product, each
of Oasys and Larscom shall bear their own travel and service
costs for such on-site call. If the Oasys Product is shown not
to be defective in any way, Larscom shall pay Oasys at Oasys'
then-current consulting rate for all time spent by Oasys
personnel and shall reimburse Oasys for its personnel's
reasonable travel and living expenses during that on-site
visit. The current consulting rate as of the effective date of
this Agreement is ***** + expenses (M-F, 8:00 am to 5:00 pm)
and ***** + expenses (Nights and weekends).
8.2 Defect Reports. Oasys shall notify Larscom of the resolution
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of any defects discovered in the Oasys Product and shall
provide Larscom with the necessary data, equipment and/or
software to allow Larscom to distribute the solution to its
customers. Larscom shall periodically supply Oasys with
available repair data or defect reports, including field
failure rate data, inspection tests and strife tests. On
Larscom's request, Oasys shall supply to Larscom available
repair data from Oasys' service facilities.
8.3 Continued Supply. Subject to Section 8.4 below, Oasys shall
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provide Larscom with a continuous supply of Oasys Products for
the Term and any Renewal Term, as well as
functionally-equivalent spares, for no less than five years
after any termination of this Agreement.
8.4 Lifetime Buy Rights. If Oasys determines to discontinue any
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Oasys Product, Oasys shall give notice to Larscom no less than
90 days written advance notice of the last Order date thereof.
After receipt of notice of discontinuance, Larscom may
purchase from Oasys such quantity of the discontinued Oasys
Product as Larscom deems necessary for its future
requirements. Alternatively, on Larscom's request, Oasys shall
grant Larscom a license to manufacture only that discontinued
product pursuant to Section 11.5 below.
9. COUNTRY OF MANUFACTURE
9.1 Country Of Origin Certification. Upon Larscom's request, Oasys
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shall provide Larscom with an appropriate certification
stating the country of origin for Oasys Products, sufficient
to satisfy the requirements of (a) the customs authorities of
the country of receipt and (b) any applicable export licensing
regulations, including those of the United States.
***** Confidential treatment has been requested for the redacted portions. The
confidential redacted portions have been filed separately with the Securities
and Exchange Commission.
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CONFIDENTIAL TREATMENT
9.2 Country Of Origin Marking. If and as required, Oasys shall
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xxxx each Oasys Product, or the container if there is no room
thereon, with the country of origin. Oasys shall, in marking
Oasys Products, comply with the requirements of the customs
authorities of the country of receipt.
10. TRAINING
10.1 Technical Training. Oasys shall provide ***** training classes
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during the ***** of the Agreement, with no more than ***** per
quarter, on the Oasys Products at Oasys' Pleasanton facility
for up to ***** people each at ***** to Larscom, excluding
Larscom's responsibility for the compensation, travel and
living expenses for any Larscom personnel. Training of any
additional people or training outside Oasys' Pleasanton
facility shall be at Larscom's expense. At a
mutually-agreeable time, location and cost, Oasys shall
provide additional training to inform Larscom personnel of
upgraded, enhanced or new versions of the Oasys Products.
Larscom may duplicate and use, either internally or for
Larscom's customers, all training classes, methods and
materials supplied or developed by Oasys pursuant to this
Agreement at no additional charge.
11. MARKETING AND LICENSING
11.1 Marketing and Sales Authority. Subject to Section 2 above,
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Larscom shall market, sell and distribute the Oasys Products
and the Larscom Equipment as it deems appropriate in its sole
discretion and on its own business terms.
11.2 Retention of Copyright Notices. Larscom shall retain all
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copyright notices on the Oasys Products, including in the
Software, and in the Customer Documentation therefor. Larscom
shall do nothing to infringe any rights of Oasys in its
trademarks, copyrights or trade names.
11.3 Private Labeling. At Oasys' sole cost and expense, Oasys shall
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design and manufacture the Oasys Products, including the
Customer Documentation, ordered by Larscom hereunder as
Larscom private label versions, bearing the trademarks, trade
names and logos (the "Larscom Marks") and labeling and
packaging specified by Larscom and conforming to Larscom
specifications for external appearance (which shall not
require any material change in form or dimensions of the
Products or require commercially unreasonable actions).
Neither party is granted any right or interest to the
trademarks, marks or trade names of the other party. However,
Oasys may use and reproduce Larscom's Marks, as provided by
Larscom, as necessary to fulfill its obligations hereunder.
Within 15 days after the Effective Date, Larscom shall deliver
to Oasys the Larscom Marks, in camera-ready format, and all
other requisite labeling and packaging specifications.
11.4 Software and Customer Documentation License. Oasys hereby
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grants to Larscom ***** license to use, reproduce, sell and
distribute the Software and Customer Documentation
incorporated into or accompanying the Oasys Products, whether
directly or through its third party channels of distribution,
provided that "sell" means (in any tense or form) the license
or sub-license of the software in accordance with the terms
hereof.
***** Confidential treatment has been requested for the redacted portions. The
confidential redacted portions have been filed separately with the Securities
and Exchange Commission.
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CONFIDENTIAL TREATMENT
11.5 Manufacturing License. Subject to the terms of this Section
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11.5, Oasys hereby grants to Larscom a ***** license to
manufacture, have manufactured and sell and sublicense the
Oasys Products, such license to be effective only on the
happening of the following events; (i) Oasys liquidates its
business, dissolves, ceases business operations or becomes the
subject of any voluntary or involuntary Chapter 7 bankruptcy
proceeding; or (ii) one or more of the specific Oasys Products
as listed in Exhibit A is discontinued (in which case the
manufacturing license is granted only for the discontinued
items).
Within sixty (60 days of the Effective Date, at Larscom's
request, Oasys shall establish an escrow account with a
mutually satisfactory agent and deposit the Technical
Information in that account. Oasys will update the Technical
Information in the escrow account upon the release of any
major design changes to the Oasys Product and at least every 6
months. The expense for such escrow account will be shared
equally by Oasys and Larscom. The Technical Information will
be released to Larscom from the escrow account in accordance
with this Section 11.5. The Technical Information is deemed
Confidential Information as governed by Section 14.8 and will
only be used for the purpose of manufacturing the Oasys
Product. Larscom shall not communicate to third parties any
Technical Information released from the escrow account except
to Larscom's subcontractors, if applicable, without Oasys'
prior written consent.
12. INTELLECTUAL PROPERTY RIGHTS
12.1 Infringement Indemnity. Oasys shall defend, indemnify and hold
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Larscom and its affiliates and customers harmless from all
claims, actions, damages or other liabilities, including
reasonable attorney's fees (collectively, "Damages") arising
from any claim that any Oasys Product, any portion thereof or
any related Intellectual Property Rights therein constitutes
an infringement or unauthorized use of any third party's
intellectual property rights (each, an "Infringement Action").
Notwithstanding the foregoing, Oasys shall have no obligation
to indemnify Larscom against any Infringement Action arising
out of (i) the Larscom Equipment, (ii) the combination of the
Larscom Equipment and any Oasys Product or (iii) any
modification of the Oasys Products by Larscom, its affiliates
or its customers.
12.2 Duty To Notify. Larscom shall give Oasys prompt notice of any
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Infringement Action and shall give Oasys sole authority,
information and assistance (at Oasys' expense) to defend
against the Infringement Action
13. TERM AND TERMINATION
13.1 Term. Following the Term, this Agreement may be extended upon
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mutual agreement of the parties for successive ***** periods
(each, a "Renewal Term"). The use of "Term" in the Agreement,
unless expressly indicated otherwise, shall refer to both the
Term and any Renewal Term collectively.
13.2 Termination for Convenience. Either party may terminate this
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Agreement at any time for any reason on 90 days' prior written
notice to the other party; provided that, if Larscom
terminates this agreement, Larscom shall purchase Oasys'
inventory on hand, specific to Larscom. Larscom will only be
responsible for inventory and work in process material for
which Oasys has received hard copy purchase orders from
Larscom through the date of termination with payment therefor
due net 15 days after termination. Larscom may at its option,
require Oasys to provide products as per orders placed prior
to termination.
***** Confidential treatment has been requested for the redacted portions. The
confidential redacted portions have been filed separately with the Securities
and Exchange Commission.
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CONFIDENTIAL TREATMENT
13.3 Termination for Breach. If either party materially breaches this
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Agreement, the other party may terminate this Agreement on 30 days'
prior written notice to the other party unless such breach is cured
within such 30-day notice period or, if such breach cannot be cured
in 30 days, the breaching party has commenced good faith efforts to
cure such breach.
13.4 Rights Upon Breach. If Larscom terminates this Agreement on Oasys'
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breach, Larscom will not be required to purchase Oasys' inventory
of Oasys Products or work in progress and Larscom may exercise it
rights under Section 11.5. If Oasys terminates this Agreement on
Larscom's breach, Larscom shall purchase Oasys' inventory on hand,
specific to Larscom. Larscom will only be responsible for inventory
and work in process material for which Oasys has received hard copy
purchase orders from Larscom through the date of termination with
payment therefor due net 15 days after termination.
13.5 Survival. The following Sections of this Agreement shall survive
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any termination hereof: 2.1.2, 7.3 through 7.6, 8.1, 12, 13.4 and
14. In addition, this Agreement shall govern all Orders transmitted
to Oasys prior to termination and to all Oasys Products shipped to
Larscom thereunder.
14. MISCELLANEOUS
14.1 Entire Agreement. This Agreement, including its Exhibits,
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constitutes the entire agreement between the parties, supersedes
all prior communications, representations, negotiations and
agreements, whether oral or written and may only be modified in a
writing signed by an authorized representative of each party. If
any provision of this Agreement is held to be invalid or
unenforceable for any reason, the remaining provisions will
continue in full force without being impaired or invalidated in any
way. Larscom and Oasys agree to replace any invalid provision with
a valid provision which most closely approximates the intent and
economic effect of the invalid provision. The waiver by either
party of a breach of any provision of this Agreement by the other
party will not operate or be interpreted as a waiver of any other
or subsequent breach by such other party.
14.2 Independent Contractors. The parties are entering into this
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Agreement as independent contractors and nothing herein shall be
construed to establish a partnership, joint venture, agency or
other similar relationship between the parties.
14.3 No Assignment. No party hereto shall assign this Agreement without
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the other party's prior written consent except in conjunction with
a merger or sale of substantially all its assets; provided that the
assigning party shall give the other party written notice of such
merger or sale.
14.4 Publicity. No press releases shall be made by one party hereto
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without the prior written consent of the other party.
14.5 Governing Law. This Agreement shall be governed by and construed in
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accordance with California law as applied to transactions taking
place in California between California residents. All disputes
between the parties arising out of or relating to this Agreement
(other than actions seeking only equitable remedies) shall be
settled by binding arbitration pursuant to the Commercial
Arbitration Rules of the American Arbitration Association by an
arbitrator who is knowledgeable about telecommunications equipment.
The arbitrator may award any legal or equitable remedy and may, in
his discretion, require one party to pay the costs of the
arbitration as well as the fees and expenses, including reasonable
attorneys' fees, of the other party. In the absence of any such
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CONFIDENTIAL TREATMENT
ruling, each party shall bear its own costs in connection with an
arbitration proceeding hereunder and the parties shall share the
costs of the arbitration equally.
14.6 Notices. Notices given hereunder shall be effective on receipt and
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shall be sufficient if given in writing, hand-delivered, sent by
telefax with confirmation of receipt, sent by First Class Mail,
return receipt requested (for all types of correspondence), postage
prepaid, or sent by overnight courier service and addressed as
follows:
Oasys Telecom, Inc. Larscom Incorporated
0000 Xxxx Xxxxxx Xxxxxxx 0000 XxXxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000 Xxxxxxxx, XX 00000
Attn: Xx. Xxxxxx Xxxxxx, President Attn: Xxxx Xxxxxxxx
14.7 Insurance. Prior to the delivery of the Oasys Product, Oasys shall
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procure and thereafter maintain, with insurers acceptable to
Larscom, the following minimum insurance protecting Oasys and
Larscom against liability from damages because of injuries,
including death, suffered by persons including employees of
Larscom, and liability from damages to property arising from or
growing out of Oasys' operations in connection with the performance
of this Agreement:
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COVERAGE LIMITS
-------------------------------------------------------------------------------------
Commercial General Liability ***** General/Aggregate
***** Products/Completed Operations Aggregate
***** Combined Limit/Each Occurrence
-------------------------------------------------------------------------------------
Product Liability ***** General Aggregate
-------------------------------------------------------------------------------------
Oasys shall provide certificates evidencing such insurance prior to
beginning delivery of Oasys Product on a form reasonably required
by Larscom. Larscom shall be listed as an additional insured under
the foregoing Commercial General Liability insurance policies, and
Oasys shall cause its insurance carrier to waive all rights of
subrogation against Larscom on the policies listed above.
14.7 Force Majeure. Neither party shall be liable to the other for its
-------------
failure to perform any obligations under this Agreement during any
period in which such performance is rendered impracticable or
impossible due to circumstances beyond its reasonable control,
including acts of God, floods, earthquakes, riots or other
hostilities, strikes or government actions, provided that the party
experiencing the delay promptly notifies the other of the delay.
14.8 Confidential Information. Each party acknowledges that all
------------------------
information relating to the business, products and operations of
the other party which it learns or has learned during or prior to
the Term is the valuable, confidential and proprietary information
of the disclosing party. The receiving party shall maintain all
confidential information disclosed hereunder by the disclosing
party in confidence and shall not disclose such information to any
third party other than those of its employees or contractors with a
***** Confidential treatment has been requested for the redacted portions. The
confidential redacted portions have been filed separately with the Securities
and Exchange Commission.
52
CONFIDENTIAL TREATMENT
need to know such information; provided that each such employee or
contractor must have executed a confidentiality agreement or be
otherwise bound by the obligations of the receiving party
hereunder. The receiving party shall safeguard the confidential
information with the same degree of care which it uses to protect
its own confidential information.
This Section shall not apply to any information which (i) is
already lawfully in the receiving party's possession (unless
received pursuant to a nondisclosure agreement); (ii) is or becomes
generally available to the public through no fault of the receiving
party; (iii) is disclosed to the receiving party by a third party
who may transfer or disclose such information without restriction;
(iv) is required to be disclosed by the receiving party as a matter
of law, governmental order or judicial mandate; provided that the
receiving party will use all reasonable efforts to provide the
disclosing party with prior notice of such disclosure; (v) is
disclosed by the receiving party with the disclosing party's
approval; and (vi) is independently developed by the receiving
party without any use of confidential information. In all cases,
the receiving party will use all reasonable efforts to give the
disclosing party ten days' prior written notice of any disclosure
of information hereunder.
Each party acknowledges that any breach of this Section by a
receiving party will irreparably harm the disclosing party.
Accordingly, on any such breach, the disclosing party shall be
entitled to promptly seek injunctive relief in addition to any
other remedies which it may have at law or in equity. The parties
will maintain the confidentiality of all confidential and
proprietary information learned hereunder for a period of five
years from the date of termination of this Agreement.
14.9 Limitation of Liability. EXCEPT ON ONE PARTY'S MISAPPROPRIATION OF
-----------------------
THE OTHER PARTY'S CONFIDENTIAL INFORMATION OR INTELLECTUAL PROPERTY
OR ON LARSCOM'S BREACH OF SECTIONS 2.1.1 OR 2.1.2, NEITHER PARTY
SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS
OR COST OF PROCUREMENT OF SUBSTITUTE GOODS) ARISING OUT OF THIS
AGREEMENT, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON TORT,
WARRANTY, CONTRACT OR ANY OTHER LEGAL THEORY EVEN IF THE DEFAULTING
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
14.10 Product Liability Indemnification. Subject to Section 14.9 above,
---------------------------------
Oasys shall defend, indemnify and hold Larscom harmless against any
Damages (as defined in Section 12.1 above) specifically resulting
from the injury to or death of any person or damage to, or loss or
destruction of, any real property or tangible personal property and
arising out of any claim that any Oasys Product hereunder is
defective in design or manufacture.
Larscom shall give Oasys prompt notice of any action hereunder and
shall give Oasys sole authority, information and assistance (at
Oasys' expense) to defend against or settle such action in Oasys'
sole discretion.
However, Oasys shall have no indemnification obligation or
liability under this Section 14.10 for damages based on (a) any
party's use of an Oasys Product in a manner other than for which it
was intended, (b) any party's modification of an Oasys Product, (c)
the misuse, neglect, damage, unauthorized repair or improper
testing or storage of any Oasys Product, (d) any party's use of the
Larscom Equipment, or (e) Oasys' adherence to
53
CONFIDENTIAL TREATMENT
Larscom's designs, instructions or directions, in which case
Larscom shall indemnify, defend and hold Oasys harmless from any
Damages on the basis set forth above.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first set forth above.
OASYS TELECOM, INC. ARSCOM INCORPORATED
By: /s/ Xxxxxx Xxxxxx By: /s/ Xxx Xxxxxxxx
----------------- ----------------
Xxxxxx Xxxxxx, President and CEO Xxx Xxxxxxxx, President and CEO
54
CONFIDENTIAL TREATMENT
***** Confidential treatment has been requested for the redacted portions. The
confidential redacted portions have been filed separately with the Securities
and Exchange Commission.
EXHIBIT A
OASYS PRODUCT
----------------------------------------------------------------------------------------------------------------------
Part Number Item List Price
----------------------------------------------------------------------------------------------------------------------
General & International M13 Items (PM13E, E1-to-T3)
----------------------------------------------------------------------------------------------------------------------
000-00000-000 EXchange Mux(R) II Rack Mount Assembly, 23" (Shelf & backplane) *****
----------------------------------------------------------------------------------------------------------------------
000-00000-000 EXchange Mux(R) II Rack Mount Assembly, 19" (Shelf & backplane) *****
----------------------------------------------------------------------------------------------------------------------
000-00000-000 EXchange Mux(R) II 23" Starter Kit (Shelf, Bkplane, 2 MPUs) *****
----------------------------------------------------------------------------------------------------------------------
000-00000-000 EXchange Mux(R) II 19" Starter Kit (Shelf, Bkplane, 2 MPUs) *****
----------------------------------------------------------------------------------------------------------------------
000-00000-000 EXchange Mux(R) II Basic Software *****
----------------------------------------------------------------------------------------------------------------------
000-00000-000 Module, MPU, (Exchange Mux(R) II Use Only), -48V *****
----------------------------------------------------------------------------------------------------------------------
000-00000-000 Module, Field Programmable M13 Multiplexer, Int'l (PM13E), -48V *****
----------------------------------------------------------------------------------------------------------------------
000-00000-000 Output Redundancy Interface Module (RIM), Exchange Mux(R) II PM13E *****
----------------------------------------------------------------------------------------------------------------------
000-00000-000 Input Redundancy Interface Module (RIM), Exchange Mux(R) II PM13E *****
----------------------------------------------------------------------------------------------------------------------
000-00000-000 Module, Blank, 1-Slot Wide *****
----------------------------------------------------------------------------------------------------------------------
000-00000-000 RIM, Blank, EXM II (Covers 1 set of Input and Output RIM slots) *****
----------------------------------------------------------------------------------------------------------------------
000-00000-000 Cable, 28 DS1/E1, RIM-to-Champ Plug, 10' *****
----------------------------------------------------------------------------------------------------------------------
000-00000-000 Cable, Craft, Modular-to-DB9, 6' *****
----------------------------------------------------------------------------------------------------------------------
000-00000-000 Cable, Craft, Modular-to-DB9, 15' *****
----------------------------------------------------------------------------------------------------------------------
000-00000-000 Cable, Craft, Modular-to-DB9, 30' *****
----------------------------------------------------------------------------------------------------------------------
000-00000-000 Cable, Craft, Modular-to-DB9, 50' *****
----------------------------------------------------------------------------------------------------------------------
000-00000-000 Cable, Null Modem, 6' *****
----------------------------------------------------------------------------------------------------------------------
000-00000-000 Cable, Null Modem, 15' *****
----------------------------------------------------------------------------------------------------------------------
000-00000-000 Cable, Null Modem, 30' *****
----------------------------------------------------------------------------------------------------------------------
000-00000-000 Cable, Null Modem, 50' *****
----------------------------------------------------------------------------------------------------------------------
000-00000-000 Air Baffle, 1 Mounting Space *****
----------------------------------------------------------------------------------------------------------------------
000-00000-000 DS3/STS-1 Connector Panel *****
----------------------------------------------------------------------------------------------------------------------
000-00000-000 Manual, Operations, Exchange Mux(R) II *****
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
Domestic M13 Items (PM13, T1-to-T3)
----------------------------------------------------------------------------------------------------------------------
000-00000-000 Module, Field Programmable M13 Multiplexer (PM13), -48V *****
----------------------------------------------------------------------------------------------------------------------
000-00000-000 Output Redundancy Interface Module (RIM), Exchange Mux(R) II PM13 *****
----------------------------------------------------------------------------------------------------------------------
000-00000-000 Input Redundancy Interface Module (RIM), Exchange Mux(R) II PM13 *****
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
OC-3/STM-1 Items
----------------------------------------------------------------------------------------------------------------------
000-00000-000 OC-3/STM-1 OMux Module, -48V *****
----------------------------------------------------------------------------------------------------------------------
000-00000-000 Output Redundancy Interface Module, EXchange Mux(R) II OC-3/STM-1 *****
----------------------------------------------------------------------------------------------------------------------
000-00000-000 Input Redundancy Interface Module, EXchange Mux(R) II OC-3/STM-1 *****
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
Misc Items
----------------------------------------------------------------------------------------------------------------------
000-00000-000 Ethernet Daughter Board for EXM Transmux or EXMII MPU *****
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
EXchange Mux Transmux Items
----------------------------------------------------------------------------------------------------------------------
55
----------------------------------------------------------------------------------------------------------------------
000-00000-000 EXchange Mux(R) Transmux Basic Rack Mount Assy, 23" (Shelf & Bkplane) *****
----------------------------------------------------------------------------------------------------------------------
000-00000-000 EXchange Mux(R) Transmux Basic Software *****
----------------------------------------------------------------------------------------------------------------------
000-00000-000 EXchange Mux(R) Transmux Extended Feature Group #1 Upgrade (Test) *****
----------------------------------------------------------------------------------------------------------------------
000-00000-000 EXchange Mux(R) Transmux SNMP Upgrade (requires MPU Daughter Bd.) *****
----------------------------------------------------------------------------------------------------------------------
000-00000-000 EXchange Mux(R) Transmux 1X6 Redundancy Interface Module (RIM) *****
----------------------------------------------------------------------------------------------------------------------
000-00000-000 Module, MPU (EXchange Mux(R) Transmux use only), -48V *****
----------------------------------------------------------------------------------------------------------------------
000-00000-000 T3-to-STS-1 Transmux Module (ST3), -48V *****
----------------------------------------------------------------------------------------------------------------------
000-00000-000 EXchange Mux(R) Module Blank, 1 slot wide *****
----------------------------------------------------------------------------------------------------------------------
000-00000-000 Air Baffle, 1 Mounting Space *****
----------------------------------------------------------------------------------------------------------------------
000-00000-000 DS3/STS-1 Connector Panel *****
----------------------------------------------------------------------------------------------------------------------
000-00000-000 Cable, DS3/STS-1, Rt. Angle SMB-to-Male BNC, 3.5' *****
----------------------------------------------------------------------------------------------------------------------
000-00000-000 Cable, DS3/STS-1, Rt. Angle SMB-to-Female BNC, 3' *****
----------------------------------------------------------------------------------------------------------------------
000-00000-000 Connector, BNC, 75-ohm, Hand Crimp *****
----------------------------------------------------------------------------------------------------------------------
000-00000-000 Cable, DS3/STS-1, 12 Conductor, 50' *****
----------------------------------------------------------------------------------------------------------------------
000-00000-000 Cable, Craft, EXchange Mux(R) User Interface, 6' *****
----------------------------------------------------------------------------------------------------------------------
000-00000-000 Cable, Craft, EXchange Mux(R) User Interface, 15' *****
----------------------------------------------------------------------------------------------------------------------
000-00000-000 Cable, Craft, EXchange Mux(R) User Interface, 30' *****
----------------------------------------------------------------------------------------------------------------------
000-00000-000 Cable, Craft, EXchange Mux(R) User Interface, 50' *****
----------------------------------------------------------------------------------------------------------------------
000-00000-000 Cable, Null Modem, 6' *****
----------------------------------------------------------------------------------------------------------------------
000-00000-000 Cable, Null Modem, 15' *****
----------------------------------------------------------------------------------------------------------------------
000-00000-000 Cable, Null Modem, 30' *****
----------------------------------------------------------------------------------------------------------------------
000-00000-000 Cable, Null Modem, 50' *****
----------------------------------------------------------------------------------------------------------------------
000-00000-000 Manual, Operations, Exchange Mux(R) Transmux *****
----------------------------------------------------------------------------------------------------------------------
***** Confidential treatment has been requested for the redacted portions. The
confidential redacted portions have been filed separately with the Securities
and Exchange Commission.
56
CONFIDENTIAL TREATMENT
EXHIBIT B
[SEE ATTACHED PRODUCT DATA SHEETS]
57
CONFIDENTIAL TREATMENT
EXHIBIT C
DISCOUNT STRUCTURE
----------------------------------------------------------------------------------------------------------------------
Item Discount from List
----------------------------------------------------------------------------------------------------------------------
All Items in Exhibit A except cables *****, increasing to *****after reaching a
***** of ***** or immediately if an *****
spanning ***** is made.
----------------------------------------------------------------------------------------------------------------------
Cables *****
----------------------------------------------------------------------------------------------------------------------
***** Confidential treatment has been requested for the redacted portions. The
confidential redacted portions have been filed separately with the Securities
and Exchange Commission.
58
