MASTER PURCHASE AGREEMENT FOR TECHNICAL EQUIPMENT AND RELATED SERVICES

Exhibit 10.15

 

MASTER PURCHASE AGREEMENT FOR

TECHNICAL EQUIPMENT AND RELATED

SERVICES

 

BETWEEN

 

SPRINT/UNITED MANAGEMENT COMPANY

 

AND

 

SYCAMORE NETWORKS, INC.

TABLE OF CONTENTS

 

 

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MASTER PURCHASE AGREEMENT FOR TECHNICAL EQUIPMENT

 

AND RELATED SERVICES

 

This Master Purchase Agreement for Technical Equipment and Related Services (the “Agreement”) dated as of April 22, 2004 (“Effective Date”) is between Sprint/United Management Company, a Kansas corporation (“Sprint”), and Sycamore Networks, Inc., a Delaware corporation (“Supplier”).

 

BACKGROUND

 

A.	Supplier is in the business of providing certain products, systems and services to its customers.

 

B.	Sprint and Supplier contemplate that they will enter into one or more Purchase Orders for the provision of Deliverables by Supplier to Sprint.

 

C.	Sprint and Supplier desire to specify the standard terms that will apply to those Purchase Orders.

 

OPERATIVE PROVISIONS

 

1.0	DEFINITIONS

 

“Acceptance” is defined in Section 9.0 and Schedule D.

 

“Agreement” refers to this Agreement and its Schedules.

 

“Backwards Compatibility” means the referenced prior Software Feature Enhancement Revision Level(s) of the applicable Product or System remain fully functional after the integration with the [ * ] Software Feature Enhancement Revision Levels and that after such integration the prior Software Feature Enhancement Revision Level(s) do not lose any functionality and the new Revision Level(s) or Interoperates with all functionalities of the [ * ] Software Feature Enhancement Revision Levels.

 

“Confidential Information” means information identified in written or oral format by the disclosing party as confidential, trade secret or proprietary information and, if disclosed orally, summarized in written format within [ * ] days of disclosure, including (i) this Agreement and the discussions, negotiations and proposals related to this Agreement, and (ii) any information exchanged in connection with this Agreement concerning the other party’s business including, tangible, intangible, visual, electronic, or written information, such as: (w) trade secrets, (x) financial information and pricing, (y) technical information, such as research, development, procedures, algorithms, data, designs, and know-how, and (z) business information, such as operations, planning, marketing interests, and products, and (iii) that in any event the receiving party should reasonably be expected to judge as confidential, trade secret or proprietary whether, under any of the clauses (i), (ii) or (iii) of this definition, received directly or indirectly from the other party.

 

*	Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential Treatment has been requested with respect to the omitted portions. Asterisks within brackets denote omission.

 

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“Control” means: (i) the power to vote 50% or more of the voting interests of an entity; or (ii) ownership of 50% or more of the beneficial interests in income or capital of an entity unless otherwise mutually agreed.

 

“Deliverable” means any Product, System or Service delivered or to be delivered by Supplier under this Agreement and any applicable Purchase Order.

 

“Documentation” means all written instructions, manuals, descriptions, and any other documents (i) related to the Deliverables, (ii) necessary for Sprint to support Sprint’s business requirements (such as provisioning, testing, certificates of compliance, operating and troubleshooting) in connection with the Deliverables and (iii) detailed, comprehensive, and prepared in conformance with generally accepted industry standards of professional care, skill, diligence and competence applicable to telecommunications and operational practices similar to Sprint’s.

 

“Embedded Software” means software that is embedded in hardware and is not intended to be separated from the hardware to function.

 

“Equipment” means all hardware and other items of personal property as well as Embedded Software, that are provided or to be provided by Supplier under this Agreement, including the Equipment listed in the applicable Schedule and Equipment Modifications and Equipment Feature Enhancements.

 

“Equipment Feature Enhancement” means (i) feature enhancements that materially improve functionality or performance of Equipment and that Supplier markets as separate commercially available product or (ii) custom developed features for Sprint or another customer of Supplier.

 

“Equipment Modifications” means any patch, fix, alteration, improvement, correction, revision, release, new version or any other change to the Equipment that is required to address a field affecting change, except for Equipment Feature Enhancements.

 

“Feature Delivery Date” means the date on which Supplier has agreed that a Technical Annex Deliverable will be made commercially available.

 

“FRU” means field replaceable unit, for example cards, inter-bay cabling and power supplies, and does not include chassis.

 

“Full Protection Services” is defined in Schedule O.

 

“Illicit Code” means any Deliverable containing code that the Supplier intends to use or uses to gain unauthorized in-band access to Sprint systems or networks via call completion or transport device transponders or ports, network or any form of “back-door” access to Sprint networks. Notwithstanding the above, Supplier shall retain the ability to provide support to Sprint and Sprint Customers on a remote basis.

 

“Installation Related Materials” are described in a work statement attached to a Purchase Order. Installation Related Materials may include third-party branded equipment, software, or other materials and are not Products. A bill of materials listing the Installation Related Materials will be provided to Sprint at the end of the engineering phase of engineering, furnishing, installation & test services (“EFI&T”).

 

*	Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential Treatment has been requested with respect to the omitted portions. Asterisks within brackets denote omission.

 

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“Interexchange Carrier” means a telephone company that is allowed to provide long distance telephone service between LATAs. LATA means local access and transport area (also known as service area) as set forth in the Modified Final Judgment between the United States Department of Justice and AT&T.

 

“Interoperability” or “Interoperate” means the Product and/or System may interconnect and successfully operate with other products and systems in accordance with current industry standards and as set forth in the Specification.

 

“IXC” means Interexchange Carrier (also known as an “IEC” or “IC”).

 

“LEC” means local exchange carrier. Local exchange carrier means any person that is engaged in the provision of telephone exchange service or exchange access.

 

“Maintenance Services” means the hardware support provided by Sycamore under the terms and conditions contained in Schedule G Section 5 and the prices contained in Schedule J. The Maintenance Service is in addition to the Warranty Services.

 

“Malicious Software” means any key, node, lock, time-out, “virus,” “back door,” trapdoor,” “booby trap,” “drop dead device,” “data scrambling device,” “Trojan Horse,” means for enabling self-help, restraint, disabling program codes or other functions, whether implemented by electronic, mechanical or other means, which restricts or may restrict use or access to any portion of any Software data or information created by or accessed using the Software. Notwithstanding the above, Supplier shall retain the ability to provide support to Sprint and Sprint Customers on a remote basis.

 

“Net Price” means the final price paid by Sprint and Sprint Affiliates after all discounts are applied.

 

“Network Services” are the services provided by Sprint or a Sprint Affiliate to Sprint Customers, which services may include, but are not limited to, the following: (a) access to the Internet, (b) data and voice transmission and (c) telecommunications services related to such access and transmission, including managed network services whereby Sprint or a Sprint Affiliate manages network elements belonging to Sprint or a Sprint Affiliate, but located at the premises of a Sprint Customer in conjunction with Sprint’s or a Sprint Affiliate’s providing services to the Sprint Customer.

 

“Purchase Order(s)” means any written purchase order for Deliverables issued by Sprint to Supplier under this Agreement.

 

“Product” means the collective reference to Equipment and Software.

 

“Resolution” means the satisfactory conclusion of a service request. Resolution can be one of the following occurrences: (a) the identified problem has been resolved; or (b) a documented action plan containing the solution and timeframe for delivery. Resolution may include Supplier providing one or more interim patches or workarounds. The provision of a mutually acceptable patch(s) or workaround(s) shall reduce the severity level of the case.

 

*	Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential Treatment has been requested with respect to the omitted portions. Asterisks within brackets denote omission.

 

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“Revision Level” means, with respect to any Product or System, any change from the immediately preceding version, including, any Software Upgrade, Software Feature Enhancement, Equipment Modifications and Equipment Feature Enhancement.

 

“Services” means any services related to the Products or System that Supplier may offer, such as Warranty Services, Software Support Plan, other Software support, installation services and training services.

 

“Software” means the computer software programs provided or to be provided by Supplier under this Agreement, including the Software listed in the applicable Schedule, any Software Upgrade, Software Feature Enhancement, Embedded Software and any related Documentation.

 

“Software Feature Enhancement” means (i) feature enhancements that materially improve functionality or performance of Software and that Supplier markets as a separate commercially available product or (ii) custom developed features for Sprint or another customer of Supplier. A Software Feature Enhancement in Supplier’s Revision Level numbering convention is denominated by the second character of its numbering system. For example in the Revision Level 6.2.1, the “Software Feature Enhancement” number is “2.”

 

“Software Support Plan” means the software support provided by Sycamore under the terms and conditions contained in Schedule G Section 6 and the prices contained in Schedule J. The Software Support Plan is in addition to the Software Warranty.

 

“Software Upgrade” means any commercially available upgrade, enhancement, modification, patch, fix, alteration, improvement, correction, revision, release, new version or any other change to the Software or Documentation, except for Software Feature Enhancements. A Software Upgrade in Supplier’s Revision Level numbering convention is denominated by the third character of its numbering system. For example in the Revision Level 6.2.1, the “Software Upgrade” number is “1.”

 

“Specification(s)” means the technical requirements and associated performance standards set forth in Schedule A.

 

“Sprint Affiliate” means (i) any entity, directly or indirectly, Controlling, Controlled by or under common Control with Sprint; and (ii) any entity that is listed in Schedule K, which may be amended from time to time as mutually agreed; and (iii) any entity to which any Sprint Affiliate as defined in clause (i) or (ii) of this definition is required by law or regulation to provide services or products and (iv) as the Parties otherwise mutually agree.

 

“Sprint Customer” means the entity to which Sprint or a Sprint Affiliate provides managed Network Services through use of the Products.

 

“Sprint Routing Guide” is attached as Schedule H.

 

“Supplier Personnel” means any employees, subcontractors or agents of Supplier who perform Services, act on Supplier’s behalf or are paid by Supplier in connection with this Agreement.

 

“Supplier Personnel Compensation” means wages, salaries, fringe benefits and other compensation, including contributions to any employee benefit, medical or savings plan and all payroll taxes, unemployment compensation benefits, including withholding obligations.

 

*	Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential Treatment has been requested with respect to the omitted portions. Asterisks within brackets denote omission.

 

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“System” means an SN16000 MC, SN16000 SC or SN3000 or other Sycamore Product that may be added to this Agreement by mutual written consent.

 

“Technical Annex” means Schedule A.

 

“Technical Annex Deliverable” means any Equipment or Software required to gain compliance with a Specification identified in the applicable Schedule as a “Future Deliverable” or “Delayed Closure.”

 

“Unmitigated Vulnerabilities” means any Deliverables (i) containing items listed by Carnegie Mellon CERT ^® Coordination Center (www.cert.org), (ii) containing items listed in the Mitre Common Vulnerabilities and Exposures List (www.cve.mitre.org), or (iii) that must be configured in a manner inconsistent with due diligence or industry-accepted best practices such that the Supplier is only able to provide contracted features or functionality under this Agreement with Deliverables configured in a manner susceptible to exploitation.

 

“Warranty Service(s)” means the services with respect to the Products and Systems further described in this Agreement and in Schedule G.

 

2.0

SCOPE

 

2.1

General

 

This Agreement sets forth general terms and conditions that apply to any Purchase Order Sprint or a Sprint Affiliate may issue to Supplier for Deliverables. Purchase Orders may be issued to Supplier for use by Sprint or Sprint Customers. Each Purchase Order specifically incorporates the terms of this Agreement.

 

All references to “Sprint” refer equally to Sprint or the Sprint Affiliate issuing a Purchase Order under this Agreement.

 

2.2

[ * ]

 

[ * ] Sprint’s issuance of a Purchase Order is Sprint’s offer to pay for Deliverables and is conditioned upon Supplier’s acceptance of the Purchase Order, in each case in accordance with this Agreement and the applicable Purchase Order.

 

2.3	Forecasting

 

Sprint will provide, on a [ * ] basis, a [ * ] forecast for Deliverables to Supplier to assist Supplier in planning in accordance with the appropriate Schedule. Any forecast will not be a Purchase Order or otherwise considered a commitment by Sprint. Each forecast will be provided to Supplier’s North American Sales Vice President or an assigned representative during the [ * ] program review or as otherwise mutually agreed.

 

2.4	Sprint Services

 

Supplier will allow Sprint to submit a proposal for Supplier’s telecommunications services as its current commitments expire. Telecommunications services include voice (wireline

 

*	Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential Treatment has been requested with respect to the omitted portions. Asterisks within brackets denote omission.

 

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and wireless), data, Internet connectivity, local, phone systems, teleconferencing and video.

 

3.0	AFFILIATE TRANSACTIONS

 

Any Sprint Affiliate may issue a Purchase Order under this Agreement. Supplier is obligated to provide the Deliverables to the Sprint Affiliate in accordance with this Agreement and the applicable Purchase Order. All references to Sprint in this Agreement refer equally to Sprint or the Sprint Affiliate executing a particular Purchase Order. Only the Sprint Affiliate executing the Purchase Order incurs any obligation or liability to Supplier with respect to the particular Purchase Order.

 

If Supplier deems a Sprint Affiliate to be not creditworthy, then Supplier may reasonably reject any Purchase Order from that Sprint Affiliate. Supplier will inform Sprint of such rejection within [ * ] days after Supplier’s receipt of the Purchase Order. If Supplier elects to accept a Purchase Order from a Sprint Affiliate that Supplier has reasonably deemed to be not creditworthy, then Supplier has the right to require letters of credit from that Sprint Affiliate.

 

4.0	PRICES, INVOICING AND PAYMENT

 

4.1

Prices

 

Prices (including any applicable discounts) for Products and Systems are set forth in Schedule J. [ * ]

 

The prices for Services are set forth in the Schedule describing the particular Services (see Section 11.0).

 

4.2

Expenses

 

Sprint will reimburse Supplier for travel, living, and other expenses if they are (i) authorized in the Purchase Order, (ii) reasonably incurred and documented, and (iii) in conformance with Sprint’s travel and reimbursement policy set forth below:

 

(a)

Sprint will reimburse Supplier only for expenses if Supplier submits the expense report for reimbursement to Sprint within [ * ] days after the relevant expenses are incurred.

 

(b)

Unless otherwise mutually agreed, Supplier must book all travel arrangements, including, without limitation, air travel, vehicle rentals and hotel accommodations, through the Sprint Business Travel Center by calling (800) 347-2639. All air travel must be coach or economy. When making travel arrangements, Supplier must identify itself as a supplier for Sprint.

 

(c)

Sprint will reimburse Supplier for use of a personal vehicle for business purposes at the rate set forth in the IRS regulations in effect at the time the expense is incurred. Sprint will not reimburse Supplier for personal expenses, including, without limitation, phone calls, meals and vehicle use not related to the Services or Products supplied under this Agreement.

 

*	Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential Treatment has been requested with respect to the omitted portions. Asterisks within brackets denote omission.

 

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(d)

For reimbursement, Supplier must submit, as applicable, the following in Supplier’s expense report: (i) passenger flight coupon and travel itinerary, (ii) the original receipt for meals and parking and toll fees, in excess of $15 (tear tab receipts are not accepted), (ii) the original receipt for hotel accommodations, vehicle rental costs, fuel costs for rental vehicle usage, parking fees and toll fees (regardless of the amount).

 

4.3

Taxes

 

Sprint is responsible for any sales, use, excise, value added or similar municipal, state, county or federal taxes (“Taxes”) which may be levied on the sale, license or transfer, ownership or installation of the Equipment and Software and the delivery of Services. Supplier will disclose the Taxes on Supplier’s invoices. Except as otherwise provided in this Agreement, Supplier is responsible for all other taxes imposed upon [ * ]. If Sprint is exempt from taxation for the purposes of a Purchase Order, it will submit an exemption certificate to the Supplier prior to shipment.

 

4.4	Invoicing, Itemization and Payment Procedures

 

Supplier must send invoices to the following address:

 

Sprint/United Management Company

Supplier Disbursements Department

Mailstop: KSOPKD0101

6860 W. 115th Street

Overland Park, Kansas 66211

 

Each invoice must include: (i) Supplier’s name and remit address, (ii) invoice number, (iii) invoice date, (iv) the name of Supplier’s contact, (v) the contract number that Sprint assigned to this Agreement, and (vi) the Purchase Order. With respect to Products, the invoice must include a description of the Products being ordered, the date shipment was made and the shipping origination and destination. In addition, the line item on the invoice must match the line item on the Purchase Order to the extent reasonably practicable, including the Net Price and description. Unless otherwise specified in a Schedule, undisputed amounts will be paid within [ * ] days of date of Supplier’s invoice. Sprint must inform Supplier if it disputes an amount within [ * ] days of the date of Supplier’s invoice. Disputed amounts will be paid, if owed, within [ * ] days of resolution of the dispute.

 

4.5	No Payment in the Event of Material Breach

 

In the event the Supplier materially breaches any Purchase Order, Sprint will provide a written notice to the Supplier allowing it [ * ] days to correct any material breach. If Supplier fails to correct the material breach within the [ * ] days, Sprint will not be obligated to make payment on the disputed portion of the Purchase Order. If the Supplier produces a mutually agreed upon plan to cure the default within [ * ] days of receipt of the material breach notice, then upon Supplier proceeding to diligently cure the default in accordance with the plan, Sprint will pay the disputed portion of the Purchase Order.

 

4.6	Prompt Invoicing

 

[ * ]

 

*	Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential Treatment has been requested with respect to the omitted portions. Asterisks within brackets denote omission.

 

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4.7	Electronic Transactions

 

Sprint and Supplier will facilitate invoicing and payment through either the use of an electronic data interchange or an Internet-based e-commerce solution within [ * ] days of the Effective Date. Sprint and Supplier will work towards facilitating electronic ordering through either the use of an electronic data interchange or an Internet-based e-commerce solution upon the shipment of approximately [ * ] FRU’s. The requirements that will govern electronic transactions are attached as Schedule B.

 

5.0

ORDERING

 

5.1	Purchase Orders

 

Sprint will purchase Deliverables by issuing Purchase Orders to Supplier. Each Purchase Order will specify, at a minimum, Sprint contact name and billing address, Purchase Order Number and date of issuance (i) with respect to Products the quantity, item number, the Net Price, the requested ship date, the shipping method and the carrier, the delivery date, and the ship-to location, (ii) with respect to Services, the service offering, the Net Price, requested start and completion dates and the location for the Supplier provided Services, (iii) the signature of the Sprint employee or agent who possesses the authority to place the order (iv) the engineering, furnishing, installation and testing Services requested by Sprint in respect of Products covered by the order as set forth in the applicable work statement incorporated into the order, (v) Maintenance Services and Software Support Plan services, training or resident engineer services requested by Customer in respect of Products covered by the order, (vi) if an engineering, furnishing, installation and testing order includes the purchase of Installation Related Materials, the bill of materials and a requested ship date, ship to address and installation address for such Installation Related Materials, and (vii) if the Products for which Services are being ordered have been separately ordered, a complete list of the Products to which the Services relate (which may be made by cross-referencing Product purchase orders already accepted by Supplier hereunder).

 

5.2

Kits

 

Supplier agrees to offer Kits to Sprint as described in Schedule J. Sprint shall only issue Purchase Orders for Kits that contain a minimum of no less than [ * ] cards per Kit and must require that the cards be delivered at the same time as the Kits. As used above “cards” is defined to mean line cards and not the common cards.

 

5.3

Lead Time

 

Supplier will provide Products to Sprint in the time frames set forth below:

 

[ * ]

 

5.4	System Substitution

 

Supplier may not ship unauthorized substitute System or System components to Sprint or Sprint’s customers without Sprint’s prior written consent.

 

*	Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential Treatment has been requested with respect to the omitted portions. Asterisks within brackets denote omission.

 

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5.5	Purchase Order Acknowledgement

 

Supplier will provide Sprint with an electronic notice of receipt of the Purchase Order within [ * ] hours. Supplier will issue a written acknowledgement (via email, or other electronic means) of acceptance or rejection within [ * ] business days of receipt of a Purchase Order from Sprint. Such acknowledgement will set forth either: (a) the Supplier scheduled ship date for accepted Purchase Orders; or (b) the reasons for Supplier’s rejection of the Purchase Order. Sprint may rescind (cancel or replace), in writing, a Purchase Order without penalty at any time within such [ * ] day period. A Purchase Order may be rejected by Supplier for any reason. [ * ]; and (b) the terms of such Purchase Order are in accordance with the terms of this Agreement, including, without limitation, Net Price and lead time for Deliverables. In the event Supplier rejects any terms, Sprint may deliver a revised Purchase Order to Supplier, the acceptance of which shall be handled in accordance with this Section. With respect to any Purchase Order issued by Sprint and rejected by Supplier, Supplier may, in lieu of a rejection notice thereof, counteroffer revised terms in writing to Sprint. Sprint shall notify Supplier in writing within [ * ] days of receipt of such counteroffer whether it will accept or reject the counteroffer; provided that no notification within such [ * ] period shall constitute rejection of such counteroffer.

 

This Agreement shall control over pre-printed portions of Purchase Order(s) and/or acknowledgments, and such pre-printed portions of Purchase Order(s) and/or acknowledgments shall have no force and effect.

 

Any term in the acknowledgment that is inconsistent with this Agreement is of no force and effect. Unless otherwise agreed, Supplier will use best commercial efforts to ship [ * ] prior to the Purchase Order due date.

 

5.6

[ * ]

 

5.6.1 [ * ]

 

Sprint may cancel all or any part of any Purchase Order for any reason for Products following Purchase Order acceptance in the time frames set forth below:

 

[ * ]

 

5.6.2 For Cause

 

Prior to Acceptance, in the event the Supplier materially breaches any Purchase Order, Sprint will provide a written notice to the Supplier allowing it [ * ] days to correct any material breach. If Supplier fails to correct the material breach within the [ * ] days, Sprint will not be obligated to make payment for the disputed portion of the Purchase Order. If the Supplier produces a plan for the cure of the default within such [ * ]-day period and proceeds diligently to cure the default in accordance with the plan, Sprint will pay the disputed portion of the Purchase Order. If a Purchase Order is terminated for cause and the Deliverables have been shipped or delivered, Sprint will return the Deliverables at Supplier’s expense.

 

If termination of a Purchase Order is partial, if practicable Supplier must continue to perform the remaining portion of the Purchase Order and Sprint will pay for such remaining portion.

 

*	Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential Treatment has been requested with respect to the omitted portions. Asterisks within brackets denote omission.

 

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5.7	Sprint’s Purchase Order Change Rights

 

Sprint may upon [ * ] days prior written notice to Supplier prior to shipment direct, in writing, changes, including but not limited to changes in any one or more of the following: [ * ].

 

Notwithstanding the foregoing, Sprint may reschedule the delivery of Products scheduled for shipment [ * ].

 

Any claim by Supplier for adjustment under this Section must be made within [ * ] business days from the date of receipt by Supplier of the notification of Changes or such other time period as mutually agreed to otherwise by the parties in writing. Supplier shall proceed with the Purchase Order, as changed, upon receipt of Sprint’s written amendment or revision detailing the agreed upon changes in price or schedule, or both.

 

6.0	SHIPPING AND RISK OF LOSS OF PRODUCT

 

6.1

General

 

All shipments will be identified with large, easily readable type, including the shipping location, the Purchase Order number, and any other special purchase or shipping instructions required by Sprint. Supplier may not ship partial Purchase Orders without Sprint’s prior written consent; however, such consent will not be unreasonably withheld if, upon Sprint’s sole determination, the partial shipment provides substantial useful functionality to Sprint. [ * ]

 

6.2

Shipping

 

Delivery of Equipment or Software will be [ * ] for shipments delivered in the United States and shall be [ * ] from any Supplier premises for shipments delivered outside of the United States. Title (except title to Software) and risk of loss for Equipment will pass [ * ]. Supplier will ship all Orders following the Sprint Routing Guide set forth in Schedule H of this Agreement, unless otherwise mutually agreed in writing.

 

6.3	Export Control Regulations

 

The parties undertake to comply with all relevant export control laws, orders, regulations and restrictions such as, but not limited to, those imposed by the United States of America, the United Nations and the European Union. Sprint specifically acknowledges that the System and technology supplied by Supplier, its affiliates, subsidiaries, or subcontractors hereunder may be subject to trade sanctions and the aforementioned export control laws, orders, regulations and restrictions and shall not be exported, re-exported, transshipped, diverted or transferred, directly or indirectly, contrary to such laws, orders, regulations or restrictions.

 

6.4	Late Shipment

 

6.4.1 If Supplier is late in shipping Product, following a [ * ] business day cure period, as [ * ].

 

[ * ] will be responsible for all expedited shipping charges. Further, Supplier hereby verifies that it does not discriminate the demands of one customer versus another and

 

*	Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential Treatment has been requested with respect to the omitted portions. Asterisks within brackets denote omission.

 

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stipulates that Sprint will receive the same priority in terms of availability, shipping, and delivery of Deliverables as any other valued customer under similar circumstances.

 

6.5	Early Shipment

 

If Supplier ships materially ahead of the time period required under Section 5.4, Sprint may, at its option, (i) return the Product to Supplier at [ * ] expense for timely re-delivery, or (ii) [ * ].

 

7.0	RETURN AUTHORIZATION PROCESS

 

Upon request by Sprint for a return authorization for repair or replacement of Product, whether or not under warranty, Supplier will either issue a return authorization or provide Sprint with written substantiation for the refusal to issue the return authorization within [ * ] of receipt of a request to return. [ * ] Upon delivery of the replacement Product, Sprint will make all reasonable efforts to return the defective Product in a timely manner.

 

8.0	INSPECTION OF PRODUCT

 

8.1	Inspection

 

Sprint may inspect or test any Product at Supplier’s location before Supplier ships it provided that it obtains permission in advance from Supplier. The parties will mutually agree on any out-of-pocket expenses associated with an inspection charged by Supplier’s contract manufacturer. Supplier must provide, at its expense, reasonable assistance for inspections and tests. Sprint also may test and inspect the Product after its receipt at Sprint’s location.

 

Sprint’s right to inspect and test (i) does not relieve Supplier from any of its other obligations under this Agreement, including warranty and quality control obligations and (ii) does not constitute Acceptance of the Product.

 

9.0	ACCEPTANCE PROCESS AND CRITERIA FOR THE FIELD EVALUATION SYSTEM, EQUIPMENT AND SOFTWARE

 

[ * ]

 

10.	HOMOLOGATION

 

Upon the Effective Date, Supplier has met the applicable Homologation requirements for the Systems as set forth in Schedule L. “Homologation” means that the Supplier has:

 

i)

obtained [ * ] approvals needed [ * ];

 

ii)

made required revisions to signaling code; and

 

iii)

obtained all certifications [ * ].

 

[ * ]. For all Systems purchased for installation in a country set forth in Schedule L, Sprint shall indicate on the Purchase Order the country in which the System is to be installed.

 

If Supplier, its distributor or a Supplier affiliate complies with the Homologation requirements for such Equipment, Software or System in any country not set forth in Schedule L, then Sprint shall have the right to use the results of such Homologation.

 

*	Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential Treatment has been requested with respect to the omitted portions. Asterisks within brackets denote omission.

 

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If Sprint desires to purchase any Equipment, Software or System for a country not set forth in Schedule L and the mandatory Homologation requirements for such have not yet been complied with, then Sprint and Supplier shall mutually agree on pricing, terms and conditions relating to such Homologation.

 

11.0

SERVICES

 

11.1	Training Services

 

Schedule E details Supplier provided training services and fees.

 

11.2	Installation Services

 

Schedule F details Supplier provided installation services and fees.

 

11.3	Warranty Services & Performance Measures

 

Schedule G details Supplier provided Warranty Services and Performance Measures.

 

11.4	Miscellaneous Provisions Related to Services

 

11.4.1 Personnel Compliance

 

Supplier will require Supplier personnel to comply with the applicable terms of this Agreement.

 

11.4.2 Sprint’s Right to Remove Supplier Personnel

 

In the event that Sprint reasonably determines that particular Supplier Personnel are not conducting himself or herself in accordance with this Section or not providing satisfactory service, Sprint may require the removal of such personnel. Supplier shall promptly investigate the matter and take appropriate action which may include removing the applicable person from working on Sprint Services (and provide Sprint with prompt notice of such removal). The parties will mutually agree on any impacts to any schedule changes and [ * ] related to the removal of any Supplier Personnel.

 

11.4.3 Weapons Prohibition

 

Supplier’s personnel are prohibited from carrying weapons or ammunition onto Sprint’s premises and from using or carrying weapons while conducting any ancillary services for Sprint or while attending Sprint-sponsored activities. Supplier agrees to comply with any postings and notices located at Sprint’s premises regarding safety, security, or weapons.

 

11.4.4 Background Checks

 

Supplier will perform background checks on all Supplier personnel assigned to provide Services under this Agreement. Background checks will include: (i) employment checks, and (ii) reference checks. Sprint may require Supplier to perform more extensive background checks for Supplier’s personnel that may be working on Sprint premises.

 

11.4.5 Security Requirements and Access

 

Supplier will adhere to Sprint security requirements. Security access rights to Sprint premises will be designated by Sprint according to Sprint’s security guidelines. Supplier will abide by

 

*	Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential Treatment has been requested with respect to the omitted portions. Asterisks within brackets denote omission.

 

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all procedures and policies applica