Oem Agreement

AGREEMENT FOR PURCHASE OF PRODUCTS


OEM AGREEMENT


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AGREEMENT FOR PURCHASE OF PRODUCTS


CONTENTS


PARTIES AND SIGNATURES


Article I DEFINITIONS


1.0 Terms Defined


Article II CONFIDENTIALITY PROVISIONS


2.0 Confidential Information
2.1 Disclosure between the Parties
2.2 Confidential Information of Third Parties
2.3 Return of Confidential Information


Article III PRODUCT


3.0 Product Description
3.1 Time Schedule / Milestone Plan
3.2 Approval of Samples
3.3 Incompatibilities
3.4 Special Products
3.5 Product Changes
3.6 Private and/or Co-Label
3.7 Private Labeling, Trademarks
3.8 Custom Software
3.9 Support for Product Adaptation


Article IV PRICES


4.0 Product Availability for Purchase
4.1 Price Warranty
4.2 Price List
4.3 Forecast
4.4 Discounts
4.5 Purchase Commitment


Article V PURCHASING TERMS AND CONDITIONS


5.0 Order Servicing
5.1 Change Order
5.2 Delivery Terms
5.3 Schedule Commitments


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5.4 Packing
5.5. Receiving and Inspection
5.6 Title and Risk of Loss
5.7 Marketing Rights, Licences


Article VI SALES SUPPORT


6.0 Sales Support


Article VII PAYMENT


7.1 Payment Terms
7.2 Invoicing


Article VIII WARRANTY


8.1 Warranty
8.1 Year 2000 Compliance Warranty
8.3 Warranty Exclusions


Article IX REPAIR SERVICE


9.0 Repairs not covered under Warranty


Article X TRAINING


10.1 Training


Article XI DOCUMENTATION


11.0 Specifications or Drawings
11.1 Documentation
11.2 Use of Information
11.3 Reproduction of Documentation


Article XII COMPLIANCE


12.0 Compliance


Article XIII TERM AND TERMINATION


13.0 Term of Agreement
13.1 Termination of Agreement


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Article XIV EMERGENCY MANUFACTURING RIGHTS/ESCROW AGREEMENT
14.0 Emergency Manufacturing Rights


Article XV GENERAL PROVISIONS


15.0 Performance
15.1 Transferability
15.2 Disclaimer of Agency
15.3 Publicity
15.4 Notices
15.5 Governing Law
15.6 Arbitration
15.7 Non-Waiver
15.8 Execution of Further Documents
15.9 Other Remedies
15.10 Effects of Headings
15.11 Intellectual Property
15.12 Product Liability
15.13 Markings
15.14 Contingency
15.15 Developments by Siemens
15.16 Validity
15.17 Limitation of Liability
15.18 Export Control Laws and Regulations


ATTACHMENTS:


Attachment A Product Structure Attachment B Furnished and Related Materials Attachment C Product Specifications Attachment D Time Schedule / Milestone Plan Attachment E Price Lists Attachment F Forecast Attachment G Bar-Coding Attachment H Siemens Deliverables Attachment I Environmental Regulations


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AGREEMENT FOR PURCHASE OF PRODUCTS


THIS AGREEMENT, having an Effective Date as at Section 13.0, is hereby entered into between ACCELERATED NETWORKS, INC., a California corporation, having a principal place of business at 301 Science Drive, Moorpark, California 93021 (hereinafter referred to as Company), and, SIEMENS AG, 81359 Munich, Hofmannstr. 51, Germany (hereinafter referred to as Siemens). Company and Siemens are hereinafter individually referred to as "Party" and collectively as "Parties".


WHEREAS, Siemens desires to purchase Products (hereinafter described under Section 1.4 ) and thereafter desires to have Product delivered for Siemens', to use in Siemens products that may be offered for resale to third parties, and


WHEREAS, Company is interested in selling Product to Siemens.


NOW THEREFORE, in consideration of the mutual covenants contained herein, it is agreed as follows:


(a) The Articles and Attachments contained in this Agreement
constitute the entire agreement between the Parties;


(b) No modifications or waiver of any of the provisions, or any
future representation, promise, or addition shall be binding upon
the Parties unless agreed to in writing;


(c) This Agreement supersedes and cancels any prior agreements
between the Parties with respect to the subject matter contained
herein.


IN WITNESS WHEREOF, the Parties hereto have as of the Effective Date duly executed this Agreement, including Attachments A through I which are incorporated herein and made a part hereof, by the respective representatives thereunto duly authorized.


ACCELERATED NETWORKS, INC. SIEMENS ATIENGESELLSCHAFT


By: /s/ Suresh Nihalani By: /s/ Martin Stolz


Suresh Nihalani Martin Stolz


Title: Chief Executive Officer Title: President, Division AN


Date: May 8, 2000 Date: May 5, 2000


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ARTICLE I


DEFINITIONS


1.0 TERMS DEFINED


For the purpose of this Agreement, the terms when employed in capital
letters, either in the singular or plural form are defined to mean the
following:


1.1 "Catalog" means any document that describes Company Products that are generally available for sale through normal distribution channels.


1.2 "Customer" means an end-user of Product who, at the time of acquisition of the Product, has taken possession of the Product for its end use and does not intend to further distribute the Product.


1.3 "Effective Date" means the date as specified in Section 13.0.


1.4 "Product" means the Product(s) specified in Attachment A including all generally sold, (i) standard spare parts, (ii) improvements, upgrades, corrections, modifications, alterations, revisions, or updates, to the specified Products made by Company during the Term of this Agreement.


1.5 "Prototype" means a completely built Product that is a pre-production release of the ultimate production version. It is used for testing and verification of design.


1.6 "Specifications" means the technical specifications for the Products, including, but not limited to Functional Requirements Specifications, , Performance Specifications and Configuration Guidelines as set forth in Attachment C and revised by the Company from time to time.


1.7 "Related Materials" means all and any kind of information, whether or not in documentary form, used or useful in or relating to, the use, maintenance or marketing of Product including, but not limited to user manuals, system manuals, program manuals, test and diagnostic information, maintenance information, and operating procedures, as more specifically set forth in Attachment B.


1.8 "Software" means the computer instructions, including but not limited to firmware, in machine-readable language provided as part of a Product or comprising a Product.


1.9 "Source Code" means human-readable source statements for the Software including, without limitation, program listings, data definition models, indices, structure tables, system flow charts, program flow charts, defined terms, file layouts and program narratives.


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1.10 "Object Code" shall mean the machine-readable form of Software resulting from the translation or processing of Source Code by computer equipment into machine language or intermediate code, and which is in that form of computer software programs which is not convenient to human understanding of the program logic, but which is appropriate for execution or interpretation by computer.


1.11 "Spares" means any sub assembly generally provided by Company for field replacement for Products including, but not limited to, components, boards, fasteners, power supplies, cables, wiring, casings and other associated materials as more specifically specified in Attachment A.


1.12 "Special Product" means any special feature or capability that is not a part of the Company's generally offered Product, not contained in the general Product Catalog and Price List, and generally built-to-order. Special Products covered by this Agreement shall be specified in Attachment A.


1.13 "Standard Price List" means Company's published listing of its standard prices for which Company will sell its Products as such list is updated from time to time by the Company as stipulated in Article IV.


1.14 "Siemens Discounted Price List" means the price list at which Siemens will purchase the Company's Product.


1.15 "Term of this Agreement" means the term of this Agreement, including any renewal periods, as specified in Section 13.0.


1.16 "Subsidiary" means any company or other form of business organisation, whether a separate legal entity or not, which is or becomes owned or controlled directly or indirectly by a Party as to at least fifty-one (51) per cent of such company's issued equity share capital, voting rights and/or the like, but such company or business organisation shall be deemed to be a Subsidiary only as long as such ownership or control exists.


1.17 "Epidemic Failure" shall be deemed to exist if five (5)% or more of the installed Product delivered by Company within any six (6) month period are Nonconforming Units due to the same or substantially similar cause.


1.18 "Nonconforming Unit" means any Product unit which deviates, in a material manner affecting form, fit or function, from the corresponding Specification and Environmental Regulations as per Attachment I either during the pre-delivery inspection or at any later time, unless such deviation has been approved in writing by Siemens.


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ARTICLE II


CONFIDENTIALITY PROVISIONS


2.0 CONFIDENTIAL INFORMATION


For the purpose of this Agreement, "Confidential Information" shall mean
any information and data of a confidential nature, including, but not
limited to, proprietary, developmental, technical, marketing, sales,
operating, performance, cost, know-how, business and process
information, computer programming techniques, and all record bearing
media containing or disclosing such information and techniques provided
such information is conspicuously marked as being Confidential.


2.1 DISCLOSURE BETWEEN THE PARTIES


2.1.1 All Confidential Information exchanged between the Parties
pursuant to this Agreement:


(a) shall not be distributed, disclosed, or disseminated in any
way or form by the receiving Party to anyone except its own
or its Subsidiaries' employees, who have a reasonable need
to know such Confidential Information to perform such
Party's obligations hereunder; and who have previously
entered into written confidentiality agreements containing
restrictions on the use and disclosure of third party
confidential information provided to either Party that are
at least as strict as those set forth in this Section
2.1.1.


(b) shall be treated by the receiving Party with the same
degree of care to avoid disclosure to any third party as
is used with respect to the receiving Party's own
information of like importance which is to be kept secret.
The receiving Party shall be liable for disclosure of
Confidential Information of the disclosing Party only if
such care is not used. The burden shall be upon the
receiving Party to show that such care was used; and


(c) shall not be used by the receiving Party for its own
purpose, except as otherwise expressly stated herein,
without the express written permission of the disclosing
Party; and


(d) shall remain the property of and be returned to the
disclosing Party (along with all copies, embodiments and
derivatives thereof) within thirty (30) days of receipt by
the receiving Party of a written


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request from the disclosing Party setting forth the
Confidential Information to be returned.


2.1.2 The obligations of the above paragraph shall not apply, however,
to any information which:


(a) is already in the public domain or becomes available to the
public through no breach of this Agreement by the receiving
Party;


(b) was in the receiving Party's possession prior to receipt
from the disclosing Party as proven by the receiving
Party's written records;


(c) is received independently on a non-confidential basis from
a third party free to disclose such information to the
receiving Party; or


(d) is independently developed by the receiving Party as proven
by its written records prior to receipt from the disclosing
Party; or


(e) is the subject of subpoena or court order.


2.1.3 Either Party shall have the right to refuse to accept any
Confidential Information under this Agreement.


2.1.4 Siemens shall be free to use and distribute Products and Related
Materials in which Company's Confidential Information is embedded
and disclosed; provided, Siemens shall not distribute or disclose
any Related Materials which are not meant to be generally
distributed, including without limitation, test, diagnostic and
maintenance information and which are conspicuously marked
"Confidential".


2.1.5 No license to the receiving Party, under any trademark, patent or
copyright, or applications which are now or may thereafter be
owned by the disclosing Party, is either granted or implied by the
conveying of Confidential Information to the receiving Party.


2.2 CONFIDENTIAL INFORMATION OF THIRD PARTIES


Neither Party shall communicate or otherwise disclose to the other,
during the Term of this Agreement, confidential or proprietary
information of third parties unless such third parties have consented to
such disclosure.


2.3 RETURN OF CONFIDENTIAL INFORMATION


Upon termination of this Agreement and request of the disclosing Party,
copies, derivatives and embodiments of the disclosing Party's
Confidential Information


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shall be returned within thirty (30) days to the disclosing Party by the
receiving Party, except to the extent such information is required by
Siemens to perform its support obligations with respect to the Products.


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ARTICLE III


PRODUCT


3.0 PRODUCT DESCRIPTION


Company shall sell Products to Siemens pursuant to this Agreement,
provided no Software shall be sold. Software shall be licensed to
Siemens pursuant to all the terms and conditions of this Agreement.


Company shall make available for Siemens' purchase (in the case of
hardware) and or license (in the case of Software), all improvements,
upgrades, enhancements, corrections, modifications, alterations,
revisions, updates, made to Product and Related Materials during the
Term of this Agreement on terms substantially as provided herein
provided that none of the foregoing shall include any products,
technology, information or the like developed or resulting from
Company's work for other parties and such are not made generally
available for sale by the Company.


3.1 TIME SCHEDULE / MILESTONE PLAN


The Parties agree to the Time Schedule/Milestone Plan according to
Attachment H. In accordance with this Attachment D, Siemens shall be
entitled to order Products with a first delivery date, at the latest, on
December 1, 2000.


3.2 APPROVAL OF SAMPLES


3.2.1 Company shall prepare and submit to Siemens, for its approval
samples ("Samples") of complete Product on or before the date
specified in Attachment D. Company must obtain Siemens' written
approval of the Prototype prior to proceeding with the
manufacture of those units. If Siemens reasonably determines that
the Samples does not meet the Specifications or other
requirements as mutually agreed herein, Siemens may, upon notice
describing such failure, reject such Samples and require Company
to prepare and submit a modified Samples for Siemens' approval.


3.2.2 Notwithstanding anything to the contrary herein or in any order
issued hereunder, any obligation of Siemens to purchase Products
shall be conditioned upon Siemens' prior written approval of
Sample. Any Sample not rejected by Siemens within thirty (30)
days of its delivery by Company will be deemed approved by
Siemens.


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If any Sample shall not be approved by Siemens in accordance with the
time schedule as per Attachment D due to a material failure of the
Sample to meet the Specification or other mutually agreed upon
requirements and Company has not curred such failure within thirty (30)
days following its receipt of written notice from Siemens describing the
failure in reasonable detail, then Siemens as its sole remedy shall be
entitled to terminate all orders for Product corresponding to such
Sample , if any, by giving written notice which shall become effective
upon receipt thereof by Company.


3.3 INCOMPATIBILITIES


Company may modify the Products provided that such modification does not
materially adversely affect form, design, fit or function as detailed in
the Specifications set forth in Attachment A. Company shall notify
Siemens of any modifications in writing at least sixty (60) days prior
to the first delivery of modified Products.


Company agrees to obtain written approval from Siemens prior to the
implementation of technical changes, enhancements, alterations,
improvements or other modifications to the Products materially affecting
form, design, fit or function, as detailed in the Specifications set
forth in Attachment C.. Company shall provide Siemens with information
at least ninety (90) days prior to delivery of Products with such
changes, enhancements, alterations, improvements or other modifications
to allow Siemens to evaluate,test and determine any necessary
modifications to its equipment or to the Product to ensure the continued
marketability of the modified Product by Siemens.


The Company and Siemens agree to establish a testing strategy that will
minimize the potentiality of Product incompatibility.


3.4 SPECIAL PRODUCTS


Special Products may be requested, quoted and developed from time to
time and added to this Agreement. Such Special Product, and associated
prices shall only become part of this Agreement on written approval of
both Parties. Once a Special Product becomes available in company's
Catalog, it shall no longer be considered a Special Product.


3.5 PRODUCT CHANGES


3.5.1 Company shall advise Siemens in writing of all changes to Product
that impact (a) reliability, (b) the Specifications, or (c) form,
fit or function in accordance with the procedures specified
herein.


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3.5.2 Company may at any time make changes in the Product, or modify
the drawings and Specifications relating thereto, or substitute
Product of later design to fill an order, provided the changes,
modifications or substitutions under normal and proper use do
not impact upon the Product's (a) reliability, (b) the
Specifications, or (c) form, fit or function. For such changes,
Company shall notify Siemens in writing not later than ninety
(90) days prior to the planned implementation of such change.


Except in the case of Mandatory Changes, Company shall send
copies of a written change modification to Siemens ninety (90)
days prior to the effective date of each change to Product which
impacts on form, fit, function, reliability, or Product
Specifications. Company shall provide Siemens' with samples of
the changed Product for testing. Siemens will either return the
Product to the Company or purchase the Product at Siemens
discount price within thirty (30) days.


If both Parties agree to such changes and such changes are
introduced into manufacturing, Company shall inform Siemens using
a change notification as to final technical version of change and
when first shipment may be expected.


3.5.3 "Mandatory Changes" are those changes required to correct an
extremely unsatisfactory condition requiring immediate action,
such as changes for safety or to meet existing Product
Specifications. In such cases Company shall promptly send Siemens
a written change notification. Company shall provide with each
change notification the following information: (a) Product change
number; (b) a detailed description of the change; (c) reason for
the change; (e) description of the impact of the change and (f)
proposed date for changes. Company shall provide Siemens with
samples of the changed Product for testing. Modifications of
Products necessary to comply with the Specification or to fulfil
any other obligation of Company under this Agreement shall be
implemented by Company at no cost to Siemens. In particular,
modifications of Products necessary to comply with applicable
laws and regulations, governmental regulation, environmental
standards, consumer protection and safety approvals shall be
implemented by Company in due time and at no cost to Siemens.


3.5.4 In the event that Siemens reasonably rejects such change to a
Product, Siemens shall advise Company of such determination as
soon as reasonably possible, but in no event more than thirty
(30) days from the date on which the sample of the changed
Product was received by Siemens. Siemens' failure to so notify
Company shall be deemed an acceptance of the change. Company
shall not furnish any such changed Products on any of Siemens
orders if the change has been reasonably rejected.


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At any time within one hundred eighty (180) days after Siemens'
receipt of Company's notice of modification, Siemens may issue
an end-of-life Purchase Order for the then current version of
the Products without any quantity limitation.


3.5.5 In furtherance to any other right and claim Siemens may have
under this Agreement, Siemens is entitled to request
modifications to the Specification, e.g., relating to the
improvement of performance, reliability, adaptations for addition
of country versions or serviceability of the Products. Such
modifications shall be implemented by Company without undue delay
provided that Company's enterprise has the technical and
personnel capacity necessary to implement such modification. The
Parties shall discuss in good faith and agree in writing the
impact, if any, of such modifications upon terms and conditions.


For all modifications, Company shall, either with the notice of
change or thirty (30) days prior to the effective date of the
modification, which ever comes first, at the latest provide
Siemens with appropriate updated copies of the pertinent modified
Documentation as set forth in ARTICLE XI.


3.6 PRIVATE and/or CO-LABEL


3.6.1 Siemens intends to private and/or co-label (hereinafter "Label"
...