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EXHIBIT 10.7
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Exchange Commission. Asterisks denote omissions.
PROCUREMENT AGREEMENT
BETWEEN
BROADWING COMMUNICATIONS SERVICES INC.
AND
CORVIS CORPORATION
DATED MARCH 17, 2000
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TABLE OF CONTENTS
Page
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Recital 1
Article 1 Laboratory System 1
Article 2 Transport Field Trial 2
Article 3 Reserved 4
Article 4 Volume Deployment; Quantities and Delivery Schedules 5
Article 5 Commercial Testing; Product Discontinuation 7
Article 6 Pricing, Invoicing, Payment and Other Financial Terms 8
Article 7 Term 9
Article 8 Documentation and Reports 9
Article 9 Delivery and Installation 9
Article 10 Force Majeure 10
Article 11 Training 10
Article 12 Software License 11
Article 13 Software Changes 13
Article 14 Product Changes 13
Article 15 Proprietary Information 15
Article 16 Warranties, and Warranty Exclusions and Limitations 16
Article 17 Representations and Other Warranties 18
Article 18 Remedies and Limitations 18
Article 19 Support and Other Services 20
Article 20 Insurance 20
Article 21 Indemnification 21
Article 22 Patents, Copyright and Trade Secrets 21
Article 23 Termination 22
Article 24 Dispute Resolution 23
Article 25 Notice and Representatives of the Parties 24
Article 26 General 25
Article 27 Incorporation of Documents 26
Article 28 Definitions 26
Article 29 Entire Agreement 29
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Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
PROCUREMENT AGREEMENT
BETWEEN BROADWING COMMUNICATIONS SERVICES INC.
AND CORVIS CORPORATION
THIS PROCUREMENT AGREEMENT ("Agreement"), made effective as of this 17th
day of March, 2000 ("Effective Date"), by and between Broadwing Communications
Services Inc., a Delaware corporation, having its principal place of business
at 1122 Capital of Texas Highway South, Austin, Texas 78746-6426 (hereinafter
referred to as "Customer"), and Corvis Corporation, a Delaware corporation,
having its principal place of business at 7015 Albert Einstein Drive, Columbia,
MD 21046-9400 (hereinafter referred to as "Corvis").
A. Customer is a leading telecommunications service provider offering a
broad range of telecommunications services requiring ever-increasing
bandwidth.
B. Corvis is a manufacturer of next-generation optical network equipment
whose ultra-long transmission capacity and high channel count products
coupled with its optical router create substantially greater capacity
while simultaneously reducing the overall cost-per-bit to the lowest
levels in the industry.
C. Customer desires to deploy commercially, and Corvis desires to supply,
Corvis equipment and software in Customer's network contingent upon
such equipment and software performing in accordance with the Transport
Field Trial Test Criteria, as defined below.
NOW, THEREFORE, in consideration of the foregoing premises and the
representations, warranties, covenants and agreements herein contained, the
parties agree as follows:
DEFINITIONS: Defined terms and definitions are set forth in Article 28 of this
Agreement.
ARTICLE 1. LABORATORY SYSTEM.
1.1 Equipment and Software. Corvis [*] to Customer, and Customer [*], the
Equipment and Software identified in Attachment 1 (the "Laboratory System")
for the prices set forth in such attachment.
1.2 [*]
1.3 Shipment of Laboratory System. Corvis will ship to Customer the
Laboratory System by the date for such delivery set forth in Attachment
1.3.
1.4 [*]
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ARTICLE 2. TRANSPORT FIELD TRIAL.
2.1 Scope. Customer will conduct a field trial of the Corvis transport
equipment and software by deploying Corvis Equipment and Software in the
configuration set out in Attachment 2 ("Transport Field Trial") to determine
whether such Equipment and Software (the "Transport Field Trial Equipment and
Software") fulfill the test criteria set forth in Attachment 2 ("Transport Field
Trial Test Criteria").
2.2 Equipment and Software
(a) Corvis will sell to Customer, and Customer will purchase, the
Transport Field Trial Equipment and Software identified in Attachment
2 for the prices set forth in such attachment.
(b) In connection with the Transport Field Trial, Corvis will provide
Customer required installation services, maintenance, training, and
technical support [*].
2.3 Payment
(a) [*], Customer will pay Corvis, within [*] after the Effective
Date, an amount equal to [*] of the Equipment and license fees for
Transport Field Trial Software to be paid by Customer to Corvis for
the Transport Field Trial Equipment and Software as specified in
Attachment 2.
(b) Customer will pay [*] the purchase price for the Transport Field
Trial Equipment and license fees for Transport Field Trial Software
[*] the Transport Field Trial, which will be deemed to occur on the
date the Transport Field Trial Equipment and Software meet the
Transport Field Trial Test Criteria.
(c) Should the Transport Field Trial not be successfully completed
(as described above)[*] after system turn-up, either party may elect
to terminate the Transport Field Trial upon written notice to the
other party. In the event of such termination, Customer will promptly
return the Transport Field Trial Equipment and Software to Corvis [*].
[*]
2.4 Shipment of Transport Field Trial Equipment and Software. Corvis will
ship to Customer the Transport Field Trial Equipment and Software by the
date for such shipment set forth in Attachment 1.3.
2.5 Duration of Transport Field Trial. Customer will complete the
Transport Field Trial as soon as practicable, but in any event not later
than [*] after delivery, installation and turn-up of the Transport Field
Trial Equipment and Software. If the Transport Field Trial Equipment and
Software fulfill the Transport Field Trial Test Criteria, Customer will,
[*]
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thereafter, commence deployment of Corvis Transport Equipment and
Software in its network pursuant to Article 4. Customer will acknowledge in
writing the successful completion of the Transport Field Trial [*] after
such completion.
ARTICLE 3. RESERVED.
ARTICLE 4. VOLUME DEPLOYMENT; QUANTITIES AND DELIVERY SCHEDULES.
4.1 Initial Deployment. Upon successful completion of the Transport Field
Trial, Customer will purchase from Corvis and deploy the Corvis Transport
Equipment and Software in quantities and in configurations priced at
U.S.$200,000,000.00 (the "Minimum Deployment Commitment"), U.S.
$100,000,000.00 of which (the "First Year Deployment Commitment") must be
ordered within 12 months after the successful completion of the Field Trial
with delivery no later than [*] after such 12 month period, in each case
based on the prices and license fees set forth in Attachment 6. Customer
will be [*] in accordance with the terms and conditions of Attachment 6.
4.2 (a) Quantity Forecast. By the [*] business day of each [*] (the
[*] hereafter being "[*]"), Customer will provide to Corvis a [*]
month rolling forecast (the "Rolling Forecast") of deliveries for
the [*] period commencing at the beginning of the [*] after the
[*] in which the forecast is made the Rolling Forecast ([*]
through [*]) will show the quantity of each Product by product
code which Customer anticipates it will need to be delivered
during the specified [*].
(b) Initial Rolling Forecast; Capacity. Notwithstanding anything to
the contrary contained herein, the parties shall discuss the
initial Rolling Forecast issued under this Agreement to better
anticipate Product requirements and availability.
4.3 During the Term of this Agreement, Customer will issue Purchase Orders
specifying the Products ordered, the quantities necessary, the delivery
site or sites (hereinafter the "Specified Site[s]") for the Products and
its proposed delivery schedule.
4.4 All deliveries of Products will be made [*]. Customer agrees to pay
[*] charges. The preceding provisions of this clause are valid for
deliveries in the United States, its possessions and territories only. All
deliveries outside the aforementioned areas will be mutually agreed upon on
a case by case basis.
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4.5 Customer will have the right to alter the destination site at least
[*] prior to Corvis' scheduled shipment date for Products, without cost or
expense to Customer, by timely transmitting Notice to Corvis of the new
Specified Site(s).
4.6 Corvis will execute and deliver to Customer an order acknowledgment
within [*] after Corvis' receipt of each Purchase Order or, if Corvis
cannot meet the proposed delivery times, the parties shall mutually agree
to appropriate delivery times. If Corvis and Customer cannot agree upon
delivery times, Corvis shall have the right to reject a Purchase Order.
Product order lead times shall be [*] unless otherwise specified by Corvis.
4.7 Customer will purchase on-site installation spares parts and
components of the Equipment ("Spares Kits" or "Kits") reasonably designated
by Corvis and agreed upon by Corvis and Customer from time to time as the
quantity necessary to enable Corvis to provide the warranty and support
services required by this Agreement. The quantity and locations of the Kits
may change with installation requirements and changes in the topology of
Customer's network.
4.8 [*]
4.9 [*]
ARTICLE 5. CUSTOMER TESTING; PRODUCT DISCONTINUATION.
5.1 Customer will have [*] after receipt of Product at its location to
perform any acceptance testing that Customer wishes to perform to confirm
that the Product complies with its applicable Technical Requirements.
Unless Customer notifies Corvis within that [*] period of any defects in
such Product, Customer will be deemed to have accepted the Product.
Customer's inspection or failure to inspect and/or its acceptance of any
Product will not relieve Corvis of its warranty obligations in respect of
such Product.
5.2 Corvis will notify Customer promptly upon learning of any material
defects in any of the Products.
5.3 (a) Corvis will support all Licensed Software and Equipment for its
expected useful life, as set forth in Attachment 5.3 ("Product Life"),
subject to the support limitations for Licensed Software contained in
Attachment 19.
(b) If Corvis discontinues manufacture and/or support of the
Equipment, Corvis will at Customer's request, to the extent of Corvis'
legal rights to do so, without obligation or charge to Customer
deliver to Customer all of the technical information owned and
possessed by Corvis relating to the manufacture and/or support of the
Equipment, in the form being used in Corvis' factories in its day-to-
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day operations of manufacture, or arrange for the replacement and
repair spare parts for the Equipment to Customer's reasonable
satisfaction. Customer may use such technical information only to
manufacture, have manufactured, obtain such spare parts from other
sources in connection with the Equipment and System Software obtained
from Corvis and owned and operated or licensed by Customer. Title to
Corvis' technical information and intellectual property rights will
remain with Corvis.
ARTICLE 6. PRICING, INVOICING, PAYMENT AND OTHER FINANCIAL TERMS.
6.1 Prices for Products are set forth in Attachment 6. In addition,
Customer will pay the right to use fee (the "Right to Use Fee") for the
Equipment and/or Software and intellectual property associated with Corvis
Equipment as specified in Attachment 6.
6.2 The prices in this Agreement do not include any federal, state or
local sales, use, excise or similar taxes, however designated, which may be
levied or assessed on the Products or Services provided hereunder, and any
personal property taxes levied or assessed on Products which has been
delivered but as to which title has not passed to Customer. With respect to
such taxes, Customer will either furnish Corvis with an appropriate
exemption certificate applicable thereto, or pay to Corvis, such amounts as
Corvis may by law be required to collect or pay.
6.3 Payment terms are set forth as follows:
(a) Customer will remit payment to Corvis for invoiced amounts within
[*] after the receipt of the invoice, which will be issued upon
shipment of the Product or completion of Services, as applicable.
Charges for Services and Equipment will be invoiced and paid
separately by Customer.
(b) Customer will not be required to pay for Products or Services
which are rightfully rejected.
6.4 In the event Corvis fails to receive payment from Customer as required
herein, Customer will have [*] calendar days to cure such non-payment after
its notice of non-payment from Corvis. Payments provided for in this
Agreement, when overdue, will bear interest at a rate per month equal to
[*] % for the time period from and including the due date until payment is
received by Corvis.
6.5 Invoicing instructions will be as follows:
Original Invoice Sent To:
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Exchange Commission. Asterisks denote omissions.
Broadwing Communication Services
Attn: Accounts Payable
1122 Capital of Texas Highway South
Austin, Texas 78746
ARTICLE 7. TERM.
Subject to the terms and conditions of this Agreement, the initial term of
this Agreement will be two (2) years from the successful completion of the
Transport Field Trial ("Initial Term"). [*] The Initial Term in combination
with any extensions is also referred to in this Agreement as the "Term".
ARTICLE 8. DOCUMENTATION AND REPORTS.
Corvis will provide to Customer, one electronic copy of the Documentation
necessary to operate and maintain the Products provided hereunder for each
Specified Site at which such Product is installed. Corvis will provide
Customer with (a) updates to the Documentation, as such updates are made
generally available, and (b) new and/or revised data incorporating any
changes to the Products which affect form, fit, or function,[*]. Such
Documentation may be reproduced by Customer for its internal use, provided
that any copyright notice of such Documentation is copied as well. Soft
copies of such Documentation will be available upon Customer's request.
Such Documentation will be used solely for Customer's internal use only on
a need-to-know and need-to-use basis.
ARTICLE 9. DELIVERY AND INSTALLATION.
9.1 Corvis will mark each shipment to Customer with Corvis name, the
Purchase Order number, and the identity and quantity of Product. Final
destination, interim staging area or any special shipping instructions and
any applicable charge will be specified on each Purchase Order.
9.2 Corvis will perform installation services for the Products at Corvis'
then standard rates for such services and on terms and conditions agreed by
the parties.
ARTICLE 10. FORCE MAJEURE
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10.1 Except as otherwise provided herein, neither Corvis nor Customer will
be liable to the other for any delay in performing in accordance with this
Agreement if such delay arises out of an Act of God including fire, flood,
earthquake, explosion, casualty, or accident, or out of war, riot, civil
commotion, labor dispute, the requirement of any governmental agency or
instrumentality, industry-wide shortages of raw materials or transportation
facilities, or any other cause beyond the control of the party claiming
force majeure.
10.2 The party asserting that an event of force majeure has occurred will
send the other party prompt notice thereof setting forth a description of
the event of force majeure, an estimate of its effect upon the party's
ability to perform its obligations under this Agreement and the duration or
expected duration thereof.
10.3 The party asserting that an event of force majeure has occurred will
be excused, on a day-to-day basis, from the performance of its obligations
under this Agreement to the extent prevented or delayed by such event (and
the other party likewise will be excused, on a day-to-day basis, from the
performance of its obligations under this Agreement to the extent such
party's obligations related to the obligations are so prevented or
delayed); provided, however, that the party asserting the occurrence of a
force majeure event will use diligent efforts to avoid or remove such force
majeure event.
ARTICLE 11. TRAINING.
11.1 Corvis will provide, upon Customer's request and at the time or times
required by Customer during the Term of this Agreement, training classes
and training materials for Customer personnel. Training will take place at
the Corvis facilities in Columbia, MD. The training programs necessary for
full installation, operation and maintenance of the Corvis Products are
summarized in Attachment 11.1, which shall be subject to change by Corvis
from time to time to reflect updates to the training methodology and
courses. Such training will be kept current to encompass the latest
Licensed Software and Equipment, or any other Software revision level
and/or Equipment revision level directed by Customer. Subject to the
foregoing, course content and material will be designed [*]. Customer will
have the right to copy Corvis' training materials for its internal use
provided that any copyright notice included in such material is copied as
well. Courses will be limited to a maximum of [*] attendees in each course
session. Corvis will provide [*] a total of [*] seats in the aggregate to
Corvis training programs that will train attendees in the installation,
testing or operation of Corvis Equipment. Such training programs will be
offered [*] by Customer of the Corvis equipment. Corvis will implement
commencing in [*] training and certification programs and will certify that
participants in such training courses received information sufficient for
installation, testing or operation of Corvis Equipment and Corvis will
provide that the [*] individuals utilizing the [*] seats provided by Corvis
as set out above are provided training sufficient to certify them. Such
certification shall not make Corvis liable for any negligence of or damage
caused by such certified individuals. Subsequent training
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programs will be charged at a rate of U.S.$[*] per person-day of training.
In all cases, Customer is obligated to pay for all travel and lodging of
Customer personnel. All training will be conducted at Corvis' Maryland
location, [*].
11.2 Corvis will certify attendees upon successful completion of the
course. Such course content and materials [*] Customer for its internal use
only.
ARTICLE 12. SOFTWARE LICENSE.
12.1 Subject to payment of any and all applicable license fees set out in
Attachment 6, Corvis grants to Customer a perpetual (subject to termination
pursuant to the terms of this Agreement), personal, nontransferable (except
as provided in this Agreement), and nonexclusive license (or, with respect
to the Third Party Software, a sublicense) to use the Software and its
related Documentation provided pursuant to the terms of this Agreement. Use
of the Software is restricted to the specified number of Network Elements
or the designated equipment, as applicable ("Designated Equipment") set
forth on Customer's Purchase Order(s). If a Designated Equipment becomes
inoperative, Customer will have the right to use the Software on comparable
backup equipment until such Designated Equipment is restored to operable
status. [*] The license grants Customer no right to and Customer will not
sublicense such Software, or modify, decompile, or disassemble Software
furnished as object code to generate corresponding Source Code. Customer
and its customers will be entitled to modify only the user-controlled
features of the Software as provided for in the related Documentation. With
respect to any Third Party Software, in addition to the terms and
conditions herein, Customer will abide by the applicable terms and
conditions for such Third Party Software. Attachment 12.1 lists the Third
Party Software licenses that are applicable as of the date of this
Agreement.
12.2 The CEM Software provided for use on Sun Workstations may only be
used on such workstation if such Software is the only software running on
such workstation and access to such workstation is password protected.
12.3 All Software (whether or not part of firmware) and its related
documentation furnished by Corvis, and all copies thereof made by Customer,
including translations, compilations, and partial copies, are and will
remain the exclusive property of Corvis and its licensors. Customer will
hold such Software and related documentation in strict confidence, and will
not, without Corvis' prior written consent, disclose, provide, provide
access to, or otherwise make available, in whole or in part, any Software
or related documentation including any description of the [*] sections of
the Software to anyone, except to its employees, and those agents and
subcontractors that are not competitors of Corvis having a need-to-know for
purposes of operating or maintaining the related Product, and except to its
customers to the extent necessary to permit them to utilize customer-
controlled features in accordance with the applicable Documentation. Such
availability shall be limited to only those portions of
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the Software and its related documentation for which there is a need-to-
know for purposes of operating or maintaining the related Product. All
persons to whom the Software and relative documentation is made available
shall have agreed in writing to obligations of confidentiality at least as
protective as those set forth herein. Customer shall maintain an accurate
and complete list of all persons having access to the Software and its
related documentation and shall maintain a log of persons accessing the
Software and its related documentation and the nature of the access, e.g.,
edit, view, copy, etc. Customer shall provide Corvis with prompt written
notice of any unauthorized use of the Software and its related
documentation and fully cooperate with Corvis in enforcing Corvis'
proprietary rights in the Software and its related documentation.
Customer shall not, and shall not permit any other person to copy,
duplicate, modify, alter, enhance, revise, summarize, or prepare derivative
works from any portion of the [*] sections of the Software. Customer will
not copy Software embodied in firmware. Customer will not make any copies
of any other Software or related documentation except as necessary for
maintaining archival copies in accordance with Customer's customary
practices. Such archival copies shall be stored in a locked and secured
container. Customer will reproduce and include any Corvis copyright and
proprietary notice on all such necessary copies of the Software and its
related documentation. Customer will take appropriate action, by
instruction, agreement, or otherwise, with the persons permitted access to
the Software and related documentation to enable Customer to satisfy its
obligations under this Agreement. When the Software and related
documentation are no longer needed by Customer, or if Customer's license is
canceled or terminated, Customer will return all copies of such Software
and related documentation to Corvis or follow written disposition
instructions provided by Corvis.
12.4 Subject to Corvis' approval which will not be unreasonably withheld,
Customer may transfer its right-to-use Software furnished under this
Agreement without the payment of an additional right-to-use fee by third
party transferee, except for additional fees which would have been
applicable to Customer with respect to usage sensitive factors (e.g.,
feature pricing based on activation level). Such transfer can be made to
another end user for their own internal use, but not to any competitor of
Corvis and only under the following conditions:
(a) Such Software will be used only within the United States and such
other countries for which such Software may be licensed from time to
time under the terms of this Agreement.
(b) The right to use such Software may be transferred only together
with the Designated Equipment with which Customer has a right to use
such Software, as long as such transfer of the Designated Equipment is
permitted pursuant to Section 15.3, and such right to use the Software
will continue to be limited to use with such Designated Equipment;
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(c) Before any such Software will be transferred, Customer will
notify Corvis in writing of such intended transfer and the transferee
will have agreed in writing (a copy of which will be provided to
Corvis before such transfer) to the terms of this Agreement and any
amendments thereto.
12.5 Subject to Section 12.2, upon advance written notice to Corvis,
Customer may physically transfer Software or optional feature packages, for
which Customer has the right to use, from one Customer-owned workstation
computer and relocate them to another Customer-owned workstation computer,
provided that (a) the Product from which the Software has been transferred
will cease to be Designated Equipment for such transferred Software and the
workstation to which the Software has been transferred will thereafter be
deemed to be the Designated Equipment, and (b) the Software delivered by
Corvis pursuant to a Purchase Order will not be resident at any time on
more than the total number of items of Designated Equipment for such
Software set forth on the applicable Purchase Order. Customer will not be
required to pay additional right-to-use fees as a result of such
relocation, except for additional fees which would have been applicable to
Customer with respect to usage sensitive factors.
12.6 Provided that Customer has proceeded with volume deployment pursuant
to Section 4, Corvis and Customer will enter into an escrow agreement, in
the form set forth in Attachment 12.6 and acceptable to both parties
("Escrow Agreement"). The escrow agent for the Escrow Agreement will be [*]
or another escrow agent acceptable to both parties. Corvis will bear the
cost of providing Corvis' Source Code to the Escrow Agent. Customer will
pay the Escrow Agent's charges, including any costs associated with testing
the Source Code in Escrow or with release of such Source Code. Upon
execution of the Escrow Agreement by both parties, Corvis will place in
escrow the source code version of the Software (excluding Third Party
Software). Thereafter, Corvis will supplement the materials in escrow to
include upgrades and new releases of the Software (excluding Third Party
Software) then in use by Customer. The Escrow Agreement will provide for
the availability of the materials in escrow, subject to the terms and
conditions of the Escrow Agreement.
ARTICLE 13. SOFTWARE CHANGES.
13.1 Corvis will furnish to Customer preliminary planning information and
documentation for new releases of the Software. Such information will be
provided [*] to Customer. New generally available releases of the Software
may be licensed by Customer at Corvis' then-current standard license fees,
except to the extent such releases are included in the Maintenance and
Support Services then in effect pursuant to the terms of this Agreement.
13.2 Software licensed to Customer under this Agreement may contain
supplemental optional features or enhancements that are separately priced.
Customer agrees not to
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activate such optional feature or enhancements without written
authorization from Corvis and Customer's payment of the appropriate license
fees. If, in spite of Customer's best efforts to comply with this
restriction, such features are activated, Customer agrees to so notify
Corvis promptly and to pay Corvis the license fees for the activated
features as well as the reasonable cost of money not exceeding the prime
rate of interest for the period in which such features were activated.
Corvis will have the right to audit Customer's usage of Corvis Equipment
and Software to assure compliance with the terms of this Agreement.
ARTICLE 14. PRODUCT CHANGES.
14.1 Prior to shipment, Corvis may at any time make changes in
Products or modify the drawings and specifications relating thereto or
substitute Products of later design, provided the changes, modifications or
substitutions under normal and proper use do not impact upon form, fit or
function of the ordered Equipment or materially adversely affect the use,
function, or performance of the ordered Software, as provided in the
Technical Requirements. Unless otherwise agreed, such Software substitution
will not result in any additional charges to Customer with respect to
licenses for which Corvis has quoted fees to Customer. With respect to
changes, modifications, and substitutions which affect the form, fit,
function, use or performance of an ordered Product, Corvis will notify
Customer in writing [*] prior to their effective dates. In the event any
such change is not desired by Customer, Customer will notify Corvis within
[*] from the date of notice and Corvis will not furnish any such changed
Products to Customer on any orders in process at the time Corvis is so
notified. In no event will Corvis change the form, fit, function, use or
performance of any Product if such change causes the Product not to conform
to the Technical Requirements, except to the extent such change conforms to
changes in network telecommunications standards generally accepted in the
industry.
Corvis may discontinue any Product or Software version if Corvis gives
Customer at least [*] notice thereof. In such event, Corvis will provide
Customer with a suggested product replacement at the same time for the
remainder of the term of this Agreement. Customer will have the right to
substitute the replacement product for the Product under this Agreement, at
a price to be negotiated by the parties. [*] Customer may give a last order
("One Time Buy Order") immediately prior to the end of the [*] period. The
One Time Buy Order is non-cancelable, non-reschedulable and non-returnable;
except as otherwise provided in this Agreement. Products ordered with the
One Time Buy Order will be delivered to Customer as requested by Customer
but no later than [*] after the notice of discontinuance.
14.2 Class Changes.
(a) After Corvis Equipment has been shipped to Customer, if Corvis
issues a Class A Change or Class B Change, or where modification to
correct an error in
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Documentation is to be introduced, Corvis will promptly notify
Customer of such change through Corvis' designated notification
procedure ("Change Notification"). Corvis will promptly provide, or
cause the respective manufacturer to provide, to Customer any changes
comparable to Class A and Class B Changes to the extent they are made
available by manufacturers with respect to Vendor Items sold to
Customer by Corvis; it being understood that the respective
manufacturers of the Vendor Items may not provide such changes for
the same period of time for which Corvis is obligated to provide
Class A and Class B changes.
(b) Corvis will, [*], furnish the parts and documentation necessary
for Customer to implement such Class A Change if it is issued within
the Product Life for the applicable Product.
(c) In any of the instances above, if Corvis determines that the
Equipment or part thereof subject to such change is readily
returnable (e.g. plug-in items), Customer, at its expense, will
remove and will return such Equipment or part to Corvis' facility and
Corvis, [*], will implement such change at its facility and return
such changed Equipment or part to Customer's designated location.
Reinstallation will be performed by Customer at its expense.
(d) Corvis' undertaking under this Section 14 with respect to Vendor
Items is limited to the extent changes comparable to Class A Changes
are provided by the respective manufacturers of Vendor Items.
(e) If Customer does not make or permit Corvis to make a Class A
Change Notification within [*] after the date of the related Change
Notification, or a Class B Change within [*] after the date of the
related Change Notification, subsequent changes, repairs, or
replacements affected by the failure to make such change may, at
Corvis' option, be billed to Customer whether or not such subsequent
change, repair, or replacement is covered under warranty.
(f) If Corvis or any applicable manufacturer of a Vendor Item issues
a Class B Change (or comparable change in the case of such
manufacturer) after Equipment has been shipped to Customer, Corvis
will promptly notify Customer of such change if it is being generally
offered to Corvis' customers. When a Class B Change is requested by
Customer, billing will be at Corvis' applicable prices or the
respective manufacturer's then current prices to Corvis, as the case
may be. Notwithstanding the above, there will be [*] for any Class B
Change (or, in the case of a Vendor Item, a comparable change) if
such change is included in the Maintenance or Support Services then
in effect pursuant to the terms of this Agreement.
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14.3 Corvis reserves the right to discontinue any product that is a
Product under this Agreement if Customer has not ordered any of that
Product for [*]. Corvis will provide [*] notice for Products being
discontinued.
14.4 Corvis reserves the right to develop, manufacture and market Products
incorporating new features, functionality, or performance characteristics
identified as a result of its relationship with Customer. Customer
acknowledges that such Products will be the sole and exclusive property of
Corvis.
ARTICLE 15. PROPRIETARY INFORMATION.
15.1 Each party acknowledges the other party's ownership of trade secrets,
proprietary or confidential information, including but not limited to
products, planned products, services or planned services, the identity of
or information concerning customers or prospective customers, data,
financial information, computer software, processes, methods, knowledge,
inventions, ideas, marketing promotions, discoveries, current or planned
activities, research development or other information relating to the other
party's business activities or operations and those of its customers or
subcontractors, as well as the pricing and other terms and conditions of
this Agreement (collectively referred to hereinafter as the "Proprietary
Information").
15.2 (a) This Agreement creates a confidential relationship between
Customer and the Corvis and, in the course of, negotiating or
performing this Agreement, including providing Products pursuant to
this Agreement, the disclosing party may disclose Proprietary
Information to the receiving party. The receiving party will keep
Proprietary Information confidential and, except as directed or
authorized in writing, will use Proprietary Information only to
provide the Products and services pursuant to this Agreement and will
not disclose to any person or entity, directly or indirectly, in
whole or in part, any Proprietary Information, information prepared
from Proprietary Information, or information that comes into
possession by reason of services hereunder. Dissemination of
Proprietary Information will be limited to the personnel within the
receiving party's organization with a need to know and solely for the
purpose of the performance of duties hereunder. Upon cessation of
work hereunder, the receiving party will return or destroy and
certify to the disclosing party such destruction of all documents,
papers and other materials in its control that contain or relate to
Proprietary Information. To the extent practicable all proprietary
information disclosed to the receiving party will be promptly
identified as such [*].
(b) The receiving party will protect the Proprietary Information
from unauthorized use or disclosure by exercising the same degree of
care that it uses with respect to information of its own of a similar
nature, but in no event less than reasonable care.
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15.3 Customer acknowledges and agrees that the Products constitute and
embody the valuable trade secrets and intellectual property of Corvis
developed at great expense to Corvis. Customer may not sell, assign or
otherwise transfer any of the Products to a third party other than a
telecommunications carrier for its own internal use in providing
telecommunication services, without the prior written consent of Corvis,
which consent will not be unreasonably withheld. Customer agrees that it
would be reasonable for Corvis to withhold its consent to any such sale,
assignment or transfer of any Product to a company involved in the
development, marketing, distribution or sale of any products that are
competitive with the Products.
15.4 Notwithstanding anything to the contrary contained herein, no
information will be deemed Proprietary Information if the party receiving
such information hereunder or any of its Affiliates ("Receiving Party") can
demonstrate that such information: (a) is generally known to the public on
the date of disclosure of same or becomes generally known to the public
after such date through no breach of this Agreement or any other obligation
of confidentiality; (b) was known by the Receiving Party without any
obligation to hold it in confidence at the time of disclosure; (c) is
received by the Receiving Party after the date of disclosure by the other
party or any of its affiliates ("Disclosing Party") from a third party
without breach of any obligation of confidentiality and without any
obligation of confidentiality binding upon the Receiving Party; (d) is
independently developed by the Receiving Party after the date of disclosure
by employees without access to Proprietary Information of the Disclosing
Party; (e) is approved for release by written authorization of the
Disclosing Party, but only to the extent of and subject to such conditions
as may be imposed in such written authorization; (f) is required by law,
rule or regulation, including requirements of the applicable securities
exchanges, to be disclosed, but only to the extent and for the purposes of
such required disclosure and subject to Section 15.5; or (g) is disclosed
in response to a valid order of a court or other governmental body, but
only to the extent of and for the purposes of such order and subject to
Section 15.5.
15.5 If a Receiving Party is or may be required by law or court order to
disclose any Proprietary Information of a Disclosing Party, such Receiving
Party: (a) will provide to such Disclosing Party immediate notice of such
possible disclosure; and (b) will permit such Disclosing Party, at its
expense, to take all reasonable actions to eliminate such requirement of
such disclosure, to limit the scope of same and to obtain protective orders
to protect the confidentiality of such Proprietary Information, including,
without limitation, filing motions and otherwise making appearances before
the court.
15.6 The provisions of this Article 15 will survive any termination or
expiration of this Agreement.
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ARTICLE 16. WARRANTIES, AND WARRANTY EXCLUSIONS AND LIMITATIONS.
16.1 Corvis warrants, to Customer only, that (i) for the applicable
warranty period set forth in Attachment 16.1 ("Warranty Period") and
subject to the support limitations set forth in Attachment 19, the Corvis
Equipment and Software (as applicable) will be free from defects in
material and workmanship, will conform in all material respects to its
Technical Requirements, (ii) upon delivery, the Equipment will be free from
all liens and encumbrances, and (iii) Corvis' Services will be performed in
a workmanlike manner and in accordance with good usage and accepted
practices in the community in which services are provided. With respect to
any Third Party Software or any Equipment furnished by Corvis but neither
manufactured by Corvis nor purchased by Corvis pursuant to its procurement
specifications (e.g., items such as personal computers and products offered
as accessories to the Corvis Products) ("Vendor Items"), Corvis does hereby
assign to Customer the warranties given to Corvis by its vendor(s) of such
Vendor Items to the fullest extent permitted by such warranties.
16.2 With respect to Products repaired or replaced during the applicable
Warranty Period, Corvis warrants, for a period equal to the greater of (i)
the remaining unexpired portion of such Warranty Period, or (ii) [*] from
the date the repair is effected, in the case of Products repaired at the
installation site, and from the date a replacement is shipped to Customer,
in the case of defective Products that are replaced, that such Products
will satisfy and perform in accordance with the warranty set forth in
clause (i) in Section 16.1, throughout such time period.
16.3 Corvis will continue to make available for purchase by Customer
repair parts for Corvis' Products furnished pursuant to this Agreement so
long as Corvis is manufacturing or stocking such equipment or repair parts,
but in no event less than the Product Life for the Product.
16.4 Corvis may use either new or remanufactured, reconditioned or
refurbished Equipment or parts if in like-new condition, or functionally
equivalent Equipment or parts (at equivalent or comparable prices) in the
furnishing of repairs or replacements under this Agreement. Corvis will
have appropriate safeguards and systems in place to assure that parts
previously determined to be defective are not reused unless they have been
proven to be in compliance with applicable specifications.
16.5 Corvis warrants that it has good marketable title to the Equipment,
that it has the full power and authority to grant the license granted
Customer under this Agreement with respect to the Licensed Software, and to
Corvis' knowledge, neither the license to nor use by Customer of the
Licensed Software or Equipment, as permitted under this Agreement, will
constitute an infringement or other violation of any copyright, patent,
trade secret, trademark, non-disclosure, or any other intellectual property
right of any third party.
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16.6 THE FOREGOING WARRANTIES IN THIS ARTICLE 16 ARE THE EXCLUSIVE
WARRANTIES WITH RESPECT TO ANY OF THE PRODUCTS OR SERVICES PROVIDED
HEREUNDER, AND ARE IN LIEU OF ALL OTHER EXPRESS AND IMPLIED WARRANTIES,
INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR
A PARTICULAR PURPOSE. CUSTOMER'S SOLE AND EXCLUSIVE REMEDY WILL BE CORVIS'
OBLIGATION TO REPAIR OR REPLACE OR, SUBJECT TO THE CONDITIONS STATED IN
THIS ARTICLE 16 AND IN ARTICLE 18, TO CREDIT OR REFUND AS SET FORTH SECTION
18.1.
16.7 In the event that Customer (i) makes any unauthorized modifications
to the Equipment or Software, or (ii) uses the Equipment or Software in the
core optical network in connection with any other equipment or software not
approved by Corvis, the Equipment and Software warranty will be voided with
respect to the Equipment or Software modified or used with unapproved
equipment or software. Corvis and Customer agree to cooperate to plan the
configuration of Customer's network to optimize its efficiency.
16.8 Corvis makes no warranty with respect to defective conditions or non-
conformities resulting from the following: Customer (including third
parties contracted by Customer) modifications, misuse, neglect, accident or
abuse; improper wiring, repairing, splicing, alteration, installation,
storage or maintenance by Customer (or third parties contracted by
Customer); use in a manner not in accordance with the applicable
specifications, or operating instructions or failure of Customer to apply
previously applicable Corvis' modifications or corrections. In addition,
Corvis makes no warranty with respect to Products which have had their
serial numbers or month and year of manufacture removed, altered and with
respect to expendable items. Corvis makes no warranty with respect to
defects related to Customer's database errors. Moreover, no warranty is
made that Software will run uninterrupted or error free.
16.9 Customer agrees not to use any third party equipment or software in
connection with the Corvis Equipment and Software other than to the [*]
interfaces of the Corvis [*] and [*] modules, the [*] and order wire
interfaces, or to the network management interfaces provided on the Corvis
Equipment and Software. Customer shall pay Corvis a right to use annual
license fee equal to [*] of the current price of the Corvis products
equivalent to any third party equipment or software used in connection with
Corvis Equipment and Software other than in a manner set forth above.
Customer represents and warrants that the Products are being acquired
hereunder for Customer's internal use and not for resale to any third
party.
ARTICLE 17. REPRESENTATIONS AND OTHER WARRANTIES.
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17.1 Each party represents and warrants that it is duly organized,
existing and in good standing under the laws of its State of organization,
and is duly qualified as a foreign corporation and in good standing in all
jurisdictions in which the failure to so qualify would have a materially
adverse impact upon its business and assets.
17.2 Each party represents and warrants that it has the corporate power
and requisite authority to execute, deliver and perform this Agreement, any
Escrow Agreement entered into pursuant to this Agreement, and all Purchase
Orders to be executed pursuant to or in connection with this Agreement, and
that it is duly authorized to, and has taken all corporate action necessary
to authorize, the execution, delivery and performance of this Agreement and
such other agreements and documents.
17.3 Each party represents and warrants that neither the execution and
delivery of this Agreement and the agreements or documents stated in
Section 17.2 above executed by it pursuant to or in connection with this
Agreement, nor the consummation of any of the transactions herein or
therein contemplated, nor compliance by it with the terms and provisions
hereof or with the terms and provisions thereof will (i) contravene or
materially conflict with any provision of applicable law to which it is
subject or any judgment, license, order or permit applicable to it, or any
indenture, mortgage, deed of trust, or other agreement or instrument to
which it is a party or by which it or its property may be bound, or to
which it or its property may be subject, (ii) violate any provision of its
articles of incorporation or bylaws or partnership agreement, if any or
(iii) require the consent or approval of, the giving of notice to, or the
registration, recording or filing of any document with, or the taking of
any other action in respect of, any person, entity or governmental agency.
17.4 Each party represents and warrants that this Agreement and the
agreements or documents stated in Section 17.2 above executed by it
pursuant to or in connection with this Agreement will constitute when
executed in full the legal, valid and binding obligations of said party,
enforceable in accordance with their respective terms, subject to
applicable bankruptcy, insolvency, reorganization, fraudulent transfer,
moratorium or similar laws affecting the enforcement of creditors rights
generally and to general principles of equity.
ARTICLE 18. REMEDIES AND LIMITATIONS.
18.1 If, under normal and proper use (i.e., as approved by Corvis or as
provided in the applicable Technical Requirements) any Product fails to
conform to the warranty specified in Article 16 during the applicable
Warranty Period, Corvis will promptly repair or replace, at its option and
expense, all such defective or nonconforming Product so as to cause it to
satisfy, and perform in accordance with, its applicable Technical
Requirements. If Corvis cannot repair or replace such Product, it will
provide a refund or credit for the original purchase price or license fee
paid by Customer for such Product. If Corvis' installation
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services prove not to be performed as warranted, within a [*] period
commencing on the date of Acceptance of the Services, Corvis, at its
option, either will correct the defect or non-conforming Services or render
a full or pro-rated refund or credit based on the original charges for the
Services. No Product will be accepted for repair or replacement without the
written authorization of and in accordance with reasonable instructions of
Corvis. Removal and reinstallation expenses as well as transportation
expenses associated with returning such Product to Corvis for readily
returnable Products (e.g., plug-in items) will be borne by Corvis only if
Corvis performed improper installation services necessitating such removal
and reinstallation. Corvis will [*] of the repaired or replaced Product to
the destination designated by Customer. In repairing or replacing any
Equipment or Software medium under this warranty, Corvis may use either new
Products or parts or remanufactured, reconditioned or refurbished Products
or parts if in like-new condition or functionally equivalent Products or
parts. Replaced Products or parts will be retained by Corvis and become
Corvis' property. Replacement Products or parts become the property of
Customer.
18.2 In the event Customer returns Products for repair that are not
defective, Corvis may require that Customer pay with respect to any
subsequently returned Products which prove not to be defective a fee which
reflects Corvis' cost of handling, inspecting and testing and, if
applicable, travel and related expenses by Corvis' employees.
18.3 The parties acknowledge that disclosure of any Proprietary
Information other than as allowed by Articles 12 or 15 may give rise to
irreparable injury and may be inadequately compensable in monetary damages
and therefore the non-disclosing party will be entitled to seek and to
obtain injunctive or other equitable relief against the breach or
threatened breach of the obligations of said Articles 12 or 15, in addition
to any other remedies which may be available.
18.4 The remedies available to either party under this Agreement are
cumulative. The exercise of any one remedy will not be deemed an election
of such remedy to the exclusion of other remedies; and the rights and
remedies of the parties as set forth in this Agreement are not exclusive
and are in addition to any other rights and remedies available to it at law
or in equity.
18.5 EXCEPT FOR CORVIS' INDEMNITY OBLIGATIONS SET FORTH IN ARTICLES 21 AND
22, ANYTHING IN THIS AGREEMENT TO THE CONTRARY NOTWITHSTANDING, (I) THE
MAXIMUM AGGREGATE AMOUNT THAT CUSTOMER WILL BE PERMITTED TO RECOVER BECAUSE
OF A DEFECTIVE PRODUCT OR DEFICIENT SERVICE WILL NOT EXCEED THE NET PRICE
OF SUCH PRODUCT OR SERVICE INVOICED TO CUSTOMER, AND (II) CORVIS' LIABILITY
TO CUSTOMER UNDER THIS AGREEMENT OR IN CONNECTION WITH ANY OTHER MATTERS
WILL NOT EXCEED IN THE AGGREGATE NET PRICE PAID TO CORVIS UNDER THIS
AGREEMENT DURING THE [*] PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
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18.6 NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, CORVIS AND ITS
AFFILIATES, AND THEIR DIRECTORS, EMPLOYEES AND AGENTS WILL NOT BE LIABLE
FOR ANY INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES
OR LOST PROFITS, REVENUES OR SAVINGS ARISING OUT OF THIS AGREEMENT, OR THE
USE OR PERFORMANCE OF ANY PRODUCT OR SERVICES, WHETHER IN AN ACTION FOR OR
ARISING OUT OF BREACH OF CONTRACT, TORT, INCLUDING NEGLIGENCE, INDEMNITY OR
STRICT LIABILITY. THIS PARAGRAPH WILL SURVIVE FAILURE OF AN EXCLUSIVE OR
LIMITED REMEDY. THE FOREGOING WILL NOT BE DEEMED TO LIMIT CORVIS' INDEMNITY
OBLIGATIONS UNDER SECTION 22.
18.7 ANY ACTION OR PROCEEDING BY EITHER PARTY UNDER THIS AGREEMENT MUST BE
BROUGHT WITHIN [*] AFTER THE DATE SUCH PARTY KNOWS OR SHOULD HAVE KNOWN
THAT SUCH CAUSE OF ACTION HAS ACCRUED.
ARTICLE 19. SUPPORT AND OTHER SERVICES.
19.1 Customer will purchase the maintenance and support services
("Maintenance and Support Services") identified in Attachment 19 for the
Products. Customer may purchase additional maintenance and support services
at Corvis prevailing time and materials rates, upon mutually agreeable
terms.
ARTICLE 20. INSURANCE.
20.1 Corvis will procure and maintain, during the Term of this Agreement
insurance in not less than the following amounts:
(a) Worker's Compensation insurance in accordance with the
provisions of the applicable Workers' Compensation or similar law of
the state with jurisdiction applicable to Corvis' personnel.
(b) Commercial General Liability, including Contractual Liability
insurance with a coverage limit of not less than [*] dollars ($[*])
combined single limit per occurrence for bodily injury or property
damage liability
(c) If the use of any automobile is required by the Corvis or any
third party acting on behalf of Corvis in the performance of this
Agreement, Corvis will also obtain and maintain business auto
liability insurance for the operation of all owned, non-owned and
hired automobiles with a coverage limit of not less than [*] dollars
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($[*]) combined single limit per accident for bodily injury or
property damage liability.
20.2 Corvis will deliver to Customer certificates of insurance
satisfactory in form and content to Customer evidencing that all of the
insurance required by this Agreement is in force, and that no policy may be
canceled or materially altered without first giving Customer at least [*]
days prior written notice.
ARTICLE 21. INDEMNIFICATION.
21.1 Corvis will be responsible for and agree to indemnify and hold
harmless Customer from and against all losses, liabilities, demands,
claims, actions, proceedings, suits and damages (including reasonable legal
fees) for injury to persons or damage to tangible property to the extent it
results directly from the intentional or negligent acts or omissions, or
strict liability, of Corvis, its officers, agents, employees, or
contractors.
21.2 Customer will be responsible for and agrees to indemnify and hold
harmless Corvis from and against all losses, liabilities, demands, claims,
actions, proceedings, suits and damages (including reasonable legal fees)
for injury, including death, to persons or damage to tangible property to
the extent it results directly from the intentional or negligent acts or
omissions, or strict liability, of Customer, its officers, agents,
employees or contractors.
21.3 With respect to each of Sections 21.1 and 21.2 above, the indemnified
party will give the indemnifying party prompt written notice of all such
claims, actions, proceedings or suits and the indemnifying party will have
the sole defense thereof, including appeals, and the sole right to settle
the same; provided, however, that the indemnifying party will not agree to
any settlement which imposes liability or obligation on the indemnified for
which the indemnified party is not fully indemnified without first
obtaining the indemnified party's consent. The indemnified party will, upon
the indemnifying party's request and at the indemnifying party's expense,
furnish all relevant information available to the indemnifying party and
cooperate and assist the indemnifying party in every reasonable way to
facilitate the defense and/or settlement of any such claim, action,
proceeding or suit.
ARTICLE 22. PATENT, COPYRIGHT AND TRADE SECRET.
22.1. In the event of any claim, action, proceeding or suit by a third
party against Customer alleging an infringement of any patent, copyright,
or trademark, or a violation or misappropriation of any trade secret or
other proprietary rights by reason of the purchase, license or use, in
accordance with Corvis' specifications, of any Product (other than Third
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Party Software) furnished by Corvis to Customer under this Agreement,
Corvis, at its expense, will defend Customer, subject to the conditions and
exceptions stated below. Corvis will reimburse Customer for any reasonable
cost, expense or attorneys' fees, which Customer is required to incur
cooperating with Corvis at Corvis' request in the defense or settlement of
such action. Corvis will indemnify Customer against any liability assessed
against Customer by final judgment on account of such action, proceeding or
suit. The foregoing indemnity with respect to patent, trademark and
copyright infringement arising from Products sold or licensed for use in
the United States or another designated country is limited to the patents,
trademarks, and copyrights enforced under the laws of the United States or
such other designated country, as applicable.
22.2. Corvis' obligation to indemnify Customer pursuant to this Article 22
is contingent upon (i) Customer giving Corvis prompt written notice of all
such claims, actions, proceedings or suits alleging infringement or
violation, (ii) Customer tendering to Corvis full and complete authority to
assume the sole defense thereof, including appeals, and the sole right to
settle same, and (iii) Customer furnishing to Corvis all relevant
information available to Customer and cooperating with and assisting Corvis
in every reasonable way to facilitate the defense and/or settlement of any
such claim, action, proceeding or suit.
22.3. If Customer's use is enjoined or in Corvis' opinion is likely to be
enjoined, Corvis will, at its expense and at its option, either (1) replace
the enjoined Product furnished pursuant to this Agreement with a suitable
substitute free of any infringement, provided such substitute has
comparable functionality and performance characteristics; (2) modify it so
that it will be free of the infringement, provided such modification does
not result in a material degradation in performance or functionality; or
(3) procure for Customer a license or other right to use it. If none of the
foregoing options are available to Corvis on a commercially reasonable
basis, Corvis will remove the enjoined Product, and refund to Customer any
amounts paid to Corvis therefor less the amortized value of the Product(s)
based on the applicable Product Life.
22.4. No undertaking of Corvis under this Article will extend to any such
alleged infringement or violation to the extent that it: (1) arises from
adherence to design modifications, specifications, drawings, or written
instructions which Corvis is directed by Customer to follow; or (2) arises
from adherence to instructions to apply Customer's trademark, trade name or
other company identification; or (3) arises from a third party products,
including any Third Party Software, furnished by Customer to Corvis for use
under this Agreement; or (4) relates to uses of a Product provided by
Corvis in combinations with other products furnished either by Corvis or
Customer. In the foregoing cases numbered (1) through (4), Customer will
defend and save Corvis harmless, subject to the same terms and conditions
and exceptions stated above, with respect to the Corvis' rights and
obligations under this Article. Corvis hereby assigns to Customer any
rights which Corvis may have to indemnity from the original manufacturer
with respect to any Vendor Item provided under this Agreement.
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22.5. The liability of Corvis with respect to any and all claims, actions,
proceedings or suits by third parties alleging infringement of patents,
trademarks or copyrights or violation of trade secrets or other proprietary
rights because of, or in connection with, any Products furnished pursuant
to this Agreement will be limited to the specific undertakings contained in
this Article.
ARTICLE 23. TERMINATION.
23.1 Either party may terminate this Agreement and any outstanding
Purchase Order, in whole or in part, in the event of a default by the
other, provided that the non-defaulting party so advises the defaulting
party in writing of the event of alleged default and affords the defaulting
party [*] within which to cure the default. Default is defined to include:
(a) Either party becomes insolvent, makes a general assignment for
the benefit of creditors, files a voluntary petition in bankruptcy
or an involuntary petition in bankruptcy is filed against such party
which is not dismissed within [*] after the date such petition is
filed, or suffers or permits the appointment of a receiver for its
business, or its assets become subject to any proceeding under a
bankruptcy or insolvency law, domestic or foreign, or has liquidated
its business;
(b) Either party's material breach of any of the terms or
conditions hereof;
(c) The execution by either party of an Assignment for the benefit
of creditors or any other transfer or assignment of similar nature;
or
(d) Termination by either party of the Transport Field Trial
pursuant to Section 2.1(c).
23.2 Neither the expiration of this Agreement according to its terms nor
its termination under the provisions of Section 23.1 will prejudice any
claim for any outstanding amount owed Corvis and Customer to each other,
damages or any other rights or remedies that any party may have under this
Agreement or at law or in equity or relieve any party from the duty to hold
in confidence proprietary information and otherwise comply with, and
exercise the rights set forth in, Articles or Sections 5.3, 6.1 (Right to
Use Fee), 14.1, 15, 16, 18, 19, 20, 21, 22, 23, 24, 25, 26, and 28 hereof,
each of which will survive such termination.
ARTICLE 24. DISPUTE RESOLUTION.
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24.1 The parties will attempt in good faith to resolve promptly any
controversy or claim arising out of or relating to this Agreement or any
subsequent performance by the parties before resorting to other remedies
available to them. Any such dispute will be referred to appropriate
executives of each party who will have the authority to resolve the matter.
If the executives are unable to resolve the dispute, the parties may by
agreement refer the matter to an appropriate form of alternative dispute
resolution such as mediation. If the parties cannot resolve the matter or
if they cannot agree upon an alternative form of dispute resolution, then
either party may pursue resolution of the matter through arbitration in
accordance with the rules of the American Arbitration Association (the
"AAA") applying the substantive law of the State of Delaware without regard
to any conflict of laws provisions. The arbitration will be conducted by a
panel of three (3) arbitrators selected in accordance with the rules of the
AAA. Each arbitrator will be an attorney familiar with telecommunications
technology and the telecommunications industry. The arbitration will be
governed by the United States Arbitration Act, 9, U.S.C. Section 1, et.
seq. and judgment upon the award rendered by the arbitrators may be entered
by any court with jurisdiction. The arbitrators are not empowered to award
damages in excess of compensatory damages, and each party waives any
damages in excess of compensatory damages.
24.2 Notwithstanding the foregoing, either party may bring a claim [*] as
provided in Section 18.3 in any court of competent jurisdiction without
first submitting the claim to arbitration.
ARTICLE 25. NOTICE AND REPRESENTATIVES OF THE PARTIES.
Any notice ("Notice") required or permitted under this Agreement must be
given in writing to the address or facsimile number provided for a party
below (or such other address or number as any party may provide to the
other in writing in the manner contemplated hereby) and will be deemed
effective as follows:
(a) if delivered in person or by courier, on the date it is
delivered;
(b) if sent by facsimile transmission, on the date that the
transmission is received by the recipient party in legible form;
(c) if sent by certified or registered mail or the equivalent
(return receipt requested), on the date that mail is delivered or
its delivery is attempted but acceptance is refused; unless the date
and time of any delivery or receipt, as applicable, is not during
normal working hours on a local business day, in which case Notice
will be deemed given and effective on the first following day that
is a local business day. For purposes hereof, a "local business day"
is a business day in the city specified in the address for notice
provided by the recipient.
The Notices provided for by this Article 25 will be given to the following:
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If to Customer:
Broadwing Communications Services Inc.
ATTN: Mike Guess, Vice President of Engineering
1835-B Kramer Lane
Austin, Texas 78758
If to Customer:
Broadwing Communications Services Inc.
Attn: Contract Administration
Rm 102-260
201 E. Fourth Street
Cincinnati, OH 45202
With a copy to:
Broadwing Communications Services, Inc.
Office of General Counsel
1122 Capital Texas Highway South
Austin, Texas 78746
If to Corvis:
Corvis Corporation
ATTN: General Counsel
7015 Albert Einstein Drive
PO Box 9400
Columbia, Maryland 21046-9400
Telephone: 443.259.4110
ARTICLE 26. GENERAL
26.1 Assignment. Neither party to this Agreement may assign, transfer,
pledge, encumber or hypothecate its interest in this Agreement or any of
its rights hereunder or delegate its obligations hereunder without the
prior written consent of the other party to this Agreement, which consent
will not be unreasonably withheld, and any attempted assignment which does
not comply fully with this Article 26.1 will be null and void.
Notwithstanding the foregoing, (i) Customer may assign or sublicense its
rights and obligations under Article 12 as provided in Section 12.1; and
(ii) either Customer or Corvis may, upon prompt written notice, assign
their respective rights and obligations pursuant to this Agreement to any
Affiliate, as appropriate, or to their respective successors
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by consolidation or merger, or the transferee of substantially all of the
assets of either, so long as Customer or Corvis, as appropriate, remains
liable under this Agreement and in such event this Agreement will be
binding upon and inure to the benefit of each such successor or transferee.
26.2 Governing Law. This Agreement will be construed in accordance with
and governed by the law of the State of Delaware without regard to the
conflict of law provisions of such state or any other jurisdiction.
26.3 Laws and Regulations. The parties hereby agree to comply with all
local, municipal, state, federal, foreign, governmental and regulatory
laws, orders, codes, rules and regulations that are applicable to their
respective performance of this Agreement.
26.4 Amendment. Any provision of this Agreement, or any schedule, exhibit
or rider hereto, may be amended only if such amendment is in writing and
signed by all the parties hereto. Additions to the Corvis Products in
Attachment 6 may be made by each party signing an additional Attachment 6
page containing the following information: Corvis Product, Equipment
Description, and Price.
26.5 Waiver. Any waiver or delay in the exercise by either party of any
of its rights under this Agreement will not be deemed to prejudice such
party's right of termination or enforcement for any further, continuing or
other breach by the other party.
26.6 Successors and Assigns. The provisions of this Agreement will be
binding upon and inure to the benefit of the parties hereto and their
respective permitted successors and permitted assigns.
26.7 Public Disclosures. Neither party will issue or release for
publication any materials relating to the existence of this Agreement, the
Products or any services to be performed pursuant to this Agreement without
the prior written consent of the other party, which consent will not be
unreasonably withheld.
26.8 Severability. Whenever possible, each provision of this Agreement,
as well as any schedule, exhibit or rider attached hereto, will be
interpreted in such manner as to be effective and valid under applicable
law, order, code, rule or regulation, but if any provision of this
Agreement, as well as any schedule, exhibit or rider hereto, is held to be
invalid, illegal or unenforceable in any respect under any applicable law,
order, code, rule or regulation, such invalidity, illegality or
unenforceability will not affect any other provision, schedule, exhibit or
rider of this Agreement, but this Agreement, schedule, exhibit or rider
will be reformed, construed and enforced in such jurisdiction as if such
invalid, illegal or unenforceable provision, schedule, exhibit or rider had
never been contained herein or attached hereto.
25
<PAGE>
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
26.9 Descriptive Headings. The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a part of this
Agreement.
26.10 Counterparts. This Agreement may be executed in separate
counterparts each of which will be an original and all of which taken
together will constitute one and the same Agreement.
26.11 Relationship of Parties. Neither Corvis, its subcontractors,
employees or agents will be deemed to be employees or agents of Customer,
it being understood that Corvis, its subcontractors, employees or agents
are independent contractors with respect to Customer for all purposes and
at all times. This Agreement will not be construed as establishing a
partnership or joint venture between Customer and Corvis.
26.12 Supersession of PO. The terms and conditions of this Agreement
supersede any pre-printed terms and conditions on any Purchase Order, both
front and back, unless otherwise agreed by the parties in writing. Any pre-
printed terms or conditions on any Purchase Order, other than the ordering
information required by this Agreement, will be of no force or effect
whatsoever.
26.13 Customer will comply with the export control laws and regulations
of the United States with respect to the Products purchased under this
Agreement
ARTICLE 27. INCORPORATION OF DOCUMENTS.
This Agreement hereby incorporates by reference the Attachments
referred to herein. In the event of an inconsistency or conflict between or
among the provisions of this Agreement, the inconsistency will be resolved
by giving precedence in the following order:
(1) Agreement
(2) Attachments
(3) Purchase Orders (excluding any preprinted terms and
conditions)
ARTICLE 28. DEFINITIONS.
"Affiliate" means, with respect to any entity, any other entity which
controls, is controlled by, or under common control with, such entity; and
"control" means ownership of a majority of the voting equity or similar
rights of an entity.
26
<PAGE>
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
"Catastrophic Failure" means any event where/when a large amount of
Customer equipment fails at a site or multiple sites thus rendering Corvis'
Equipment to be inoperable due to Acts of God or acts not within Customer's
control, and such repair of Equipment is beyond the normal repair and
return or sparing capabilities established for routine maintenance. Such
events will include but not be limited to floods, fires, malicious acts,
vandalism and sabotage.
"Change Notification" is defined in Section 14.2
"Class A Change" means a modification of existing Corvis manufactured
Equipment to remedy a non-conformance to Technical Requirements required to
correct design defects of a type that results in electrical or mechanical
inoperative conditions or unsatisfactory operating conditions, or which is
recommended to enhance safety. Corvis will use standards consistent with
its practices for all its customers in determining which modifications
constitute Class A changes.
"Class B Change" means an optional change, available to Customer at an
additional cost, that provides Equipment enhancements resulting in new
features or improved service capabilities to Corvis Equipment.
"Committed Amounts" is defined in Section 4.3.
"Designated Equipment" is defined in Article 12.
"Documentation" with respect to any Product means Corvis' technical
documentation and operating manuals for such Product.
"Effective Date" is defined in the Preamble.
"Equipment" or "Corvis Equipment" means the equipment that may be purchased
from Corvis pursuant to this Agreement.
"Final Deployment Date" is defined in Section 4.1.
"Initial Deployment Shortfall" is defined in Section 4.2.
"Initial Term" is defined in Section 7.
"Licensed Software" means the Corvis software and third party software,
each of which in machine-readable form, and subsequent Software upgrades,
necessary to install, operate, and maintain the Products purchased or
licensed by Customer pursuant to this Agreement.
"Maintenance and Support Services" is defined in Section 19.
27
<PAGE>
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
"Net Price" means the final price paid by any Customer after all sales
discounts, price reductions, sales rebates, volume discounts or similar
adjustments of any kind are applied, whether under the original contract of
purchase or any supplemental, separate, or complimentary transaction.
"Network Element" means a material component of Corvis' fiber optic
transmission system, including, but not limited to, optical amplifiers,
optical routers, optical add-drop multiplexers or end nodes at given sites
or nodes in the network.
"Product Life" for each Product is as set out in Attachment 5.3.
"Products" means Equipment and Software.
"Proprietary Information" is defined in Section 15.1.
"Purchase Order" means the document issued by Customer which identifies the
Products and specifies the scope of work, quantities and dates for
delivery, billing instructions, and any other necessary information.
"Rolling Forecast" is defined in Section 4.3.
"Services" means the services provided by Corvis to Customer as specified
in a Purchase Order to the extent such Services are not included in the
supply of other Products.
"Software" refers to all the programs, computer languages, and operations
used to make Equipment perform a useful function or used to enable human
access to the Equipment for the purposes of installing, operating, or
maintaining such Equipment
"SONET" means a Synchronous Optical Network which adheres to the interface
standard of the same name created by the Exchange Carriers Standards
Association for the American National Standards Institute ("ANSI"), and
promulgated by Bellcore on behalf of the Regional Bell Operating Companies.
"Source Code" means all intellectual information including but not limited
to Documentation, Software in human-readable form, flow charts, schematics
and annotations which comprise the pre-coding detailed design
specifications for Licensed Software (excluding Third Party Software).
"Specified Site" is defined in Section 4.4.
"System" means a configuration of Equipment with two (2) end terminals, any
intermediate line amplifiers connected by fiber to the end terminals, all
associated Software, which has the ability to communicate to an element
management system such that traffic can be
28
<PAGE>
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
transmitted from end terminal to end terminal and operation can be
monitored by the element management system.
"Technical Requirements" means (i) the specifications set forth in
appropriate industry standard telecommunications technical requirements
where applicable or as such specifications may be most currently modified
or amended pursuant to mutual agreement of the parties.
"Third Party Software" means Software which is independently developed by a
third party, sub-licensed to Customer under this Agreement or otherwise
provided with the Products hereunder.
"Transport Field Trial" is defined is Section 2.1.
"Transport Field Trial Test Criteria" is defined in Section 2.1
"Vendor Items" is defined in Section 16.1.
"Warranty Period" is defined in Section 16.1.
ARTICLE 29. ENTIRE AGREEMENT.
This Agreement together with all Exhibits and Attachments constitutes the
entire Agreement between Customer and Corvis with respect to the subject
matter hereof and supersedes all prior agreements and understandings, both
written and oral, between the parties with respect to such subject matter,
and is not intended to confer upon any person other than the parties hereto
any rights or remedies hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the day and year below
written.
CORVIS CORPORATION BROADWING COMMUNICATIONS SERVICES INC.
/s/David R. Huber
BY: David R. Huber BY: /s/ Richard G. Ellenberger
TITLE: President and CEO TITLE: President, COO
29
<PAGE>
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
DATE: March 20, 2000 DATE: March 17, 2000
/s/ Michael R. Jones
Michael R. Jones
Sr. Vice President
Engineering
30
<PAGE>
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
LIST OF ATTACHMENTS
-------------------
Attachment 1.1 - Laboratory System
Attachment 1.3 - Estimated Project Schedule
Attachment 2 - Transport Field Trial Equipment, Software, and Services
Pricing
Attachment 2.1 - Transport Field Trial Configuration and Test Criteria
Attachment 5.3 - Product Life
Attachment 6 - Prices for Products and Services
Attachment 11.1 - Corvis Training
Attachment 12.1 - Third Party Software Licenses
Attachment 12.7 - Escrow Agreement
Attachment 16.1 - Warranty Period
Attachment 19 - Maintenance and Support Services and Other Services
Attachment 28 - Product Specifications
<PAGE>
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
ATTACHMENT 1
LABORATORY SYSTEM
-----------------
<TABLE>
<CAPTION>
-----------------------------------------------------------------------------------------
Corvis Products & Services Net Units Extended
Price Price [*]
-----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Network Elements
ONG-160 [*] [*] [*] [*] [*]
OADM-160 [*] [*] [*] [*] [*]
OA3200 [*] [*] [*] [*]
OC [*] Tx/Rx Interfaces [*] [*] [*] [*]
ONG-160 [*] RTUs [*] [*] [*] [*]
OADM [*] RTUs [*] [*] [*] [*]
OA3200 RTUs [*] [*] [*] [*]
NOC
CorManager NOC Equipment SUN 450 [*] [*] [*] [*]
CorManager Applications Software [*] [*] [*] [*]
CorManager Annual Maintenance [*] [*] [*] [*]
CorManager Installation [*] [*] [*] [*]
Corvis CorManager Services
Engineering, Installation, System Turn-Up and Test [*] [*] [*] [*]
Training (per [*] Day Course) [*] [*] [*] [*]
Remote TAC (per Hour) [*] [*] [*] [*]
On-Site Technical Support (per Day) [*] [*] [*] [*]
Documentation [*] [*] [*] [*]
-----------------------------------------------------------------------------------------
Total Extended Price [*]
-----------------------------------------------------------------------------------------
Total [*]
-----------------------------------------------------------------------------------------
</TABLE>
<PAGE>
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
ATTACHMENT 1.3
ESTIMATED PROJECT SCHEDULE
--------------------------
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------------------------------
Event Date Location Objective
---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
CUSTOMER Installation complete: CUSTOMER Install, test and turn-up trial system.
Laboratory System [*]
Installed, Tested And Test and Turn-up: [*]
Turned-Up
---------------------------------------------------------------------------------------------------------
CUSTOMER Field Trial Commence shipment: CUSTOMER Install field trial system. Delivery of
System Installation [*] equipment for field trial installation.
Test and Turn-up
Complete: [*]
---------------------------------------------------------------------------------------------------------
Formal CUSTOMER Commencing [*] CUSTOMER Evaluate the Corvis system.
Field Trial Evaluation
---------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
ATTACHMENT 2
TRANSPORT FIELD TRIAL EQUIPMENT, SOFTWARE, AND SERVICES PRICING
---------------------------------------------------------------
<PAGE>
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
[*] to [*] Transport Field Trial Pricing
The Corvis CorWave(TM) Transport Field Trial system configuration is activated
with [*] circuits. All required Network Elements, , NOC network management,
engineering & installation, and documentation prices and configurations for the
Transport Field Trial system is outlined in the following table.
<TABLE>
<CAPTION>
-----------------------------------------------------------------------------------------
Corvis Products & Services Net Units Extended
Price Price [*]
-----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Network Elements
ONG-160 [*] [*] [*] [*] [*]
OADM-160 [*] (previously OADM-E) [*] [*] [*] [*]
OA3200 [*] [*] [*] [*]
OC [*] Tx/Rx Interfaces [*] [*] [*] [*]
ONG-160 [*] 6 RTUs [*] [*] [*] [*]
OADM [*] RTUs [*] [*] [*] [*]
OA3200 RTUs [*] [*] [*] [*]
NOC
CorManager NOC Equipment SUN 450 [*] [*] [*] [*]
CorManager Applications Software [*] [*] [*] [*]
CorManager Annual Maintenance [*] [*] [*] [*]
CorManager Installation [*] [*] [*] [*]
Corvis CorManager Services
Engineering, Installation, System Turn-Up and Test [*] [*] [*] [*]
Training (per [*] Day Course) [*] [*] [*] [*]
Remote TAC (per Hour) [*] [*] [*] [*]
On-Site Technical Support (per Day) [*] [*] [*] [*]
Documentation [*] [*] [*] [*]
-----------------------------------------------------------------------------------------
Total Extended Price [*]
-----------------------------------------------------------------------------------------
Total [*]
-----------------------------------------------------------------------------------------
</TABLE>
<PAGE>
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
ATTACHMENT 2
TRANSPORT FIELD TRIAL CONFIGURATION AND TEST CRITERIA
-----------------------------------------------------
[*] to [*] Field Trial Summary
The Corvis CorWave(TM) product is used to establish a Field Trial system that
spans from [*] to [*]. The Field Trial system is configured in a [*]
configuration, shown in the following figure. Optical Network Gateways (ONGs)
are located in [*] and [*]. These ONGs are connected through [*] Optical Line
Amplifiers (OLAs) and an Optical Add/Drop Multiplexer (OADM), located in [*].
The initial configuration supports [*].
[Diagram of [*] to [*] field trial system
overlayed on a map of the United States]
<PAGE>
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
Transport Field Trial Responsibilities
Corvis will conduct site surveys, fiber plant qualification, equipment
installation, equipment testing and turn-up, fiber splicing within the Broadwing
equipment rooms and limited on-site training at no charge. Corvis is planning
to provide the appropriate number of installation and testing teams to support
the system. Corvis will deliver, install, test and turn-up the system as
outlined in the Master Project Schedule.
Broadwing agrees to a joint press release announcing the strategic partnership
with Corvis starting with the Corvis CorWave(TM) Field Trial.
Transport Field Trial Test Criteria
Network Operations
. Gain Flatness/Gain Profile
Demonstrates the spectral profile at points throughout the system. Signal
amplitudes remain level after passing through many amplifiers for normal
operating mode.
. End-to-End Jitter Test
Demonstrates system meets Telcordia Jitter specs. (Transfer, Tolerance and
Generation) at [*] reach interfaces.
. Eye Mask Test
Verify Eye mask at Corvis Rx module (customer [*] Tributary Side).
. Adjacent Channel Crosstalk ([*])
[*] Monitor BER [*]. Drop and restore traffic [*] and verify no change in BER
[*].
. FEC Error Correction Verification Test
Demonstrates FEC circuitry functionality at the System level.
. Wavelength Accuracy & Control of Tx Channels
Verifies the wavelength control of the laser diodes in the Tx module.
Verifies the control loop [*] that maintains wavelength accuracy.
Dynamic Performance
. [*] OSNR
Demonstrates minimum system OSNR where system can maintain [*]. Also
demonstrates system margin by measuring difference between nominal OSNR and
minimum OSNR [*].
. [*] Gain Flattening
[*] Input power is adjusted (increased or decreased) for a particular span on
the network with the [*] or through other internal means. The [*] operator
monitors the [*] and [*] data throughout the span to view increases and
decreases in parameter values.
. [*]([*] Interface) Sensitivity Test
Demonstrates the rapid response and settling time of the system as [*] data
channels are [*] at the [*]. [*] Also measure BER during test to verify that
no bit errors occur [*].
<PAGE>
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
. [*] Dynamic Range Characterization
Typically, channel assignments are performed using the Corvis Wave Planner
(CWP) and the Corvis Provisioning tool (CPT). The CEI application also
provides technicians with the ability to [*]. This test verifies the CEI
application and the CPT application can be used to [*]. The test sequence
will include first [*] at the receiver ONG and then [*] at the transmitter
ONG to avoid unnecessary [*] alarms generated by the receiver. The test will
also verify that CEI and CPT users with the appropriate privileges may [*].
Network Provisioning
. ONG Channel [*]
This test verifies the CEI application and the CPT application can be used to
[*].
Fault Management
. Fiber Cut/Eye Safety Test
Fiber cuts may occur between Line Amplifiers and a GNE (Gateway Node Element)
or between Line Amplifiers. This test verifies that when a fiber cut occurs,
different alarms are generated by different NEs. All affected network
elements generate the appropriate alarms and go into eye safety shutdown
mode.
. Failed Data Communication Network
The CEM monitors the status of the DCN. If a failure is detected, then an
alarm is generated by the CEM. This test verifies that an alarm is generated
when a DCN failure occurs
. Failed CPM
Each rack contains a [*] CPM [*]. When the [*] CPM fails,[*] and [*] has the
Ethernet connection to be able to take over that communication. Therefore,
the CEM [*]. If a [*] fails, the CEM detects the failure alarm, but the NE is
still able to communicate with the CEM. Based on the type of failure, either
a technician replaces it with a new CPM card or a new software module is
downloaded.
Under both conditions the other modules in the shelf should continue to work
properly.
. Pump Failure
Demonstrates the system's ability to [*] for various Amplifier pump failures
in a span. Also demonstrates the capability of the firmware/software to
report the appropriate alarms to the CEM operator in the event of a
catastrophic pump module failure.
. Tx Failure
Failure of a Transmitter (Tx) Module causes the next [*] down the span [*] to
generate a loss of input alarm. The CEM receives the alarm and notifies the
operator. The CEM will also receive the alarm from the module's [*]
indicating that the module has failed. This test verifies that the
appropriate alarms are generated when a Transmitter Module fails.
<PAGE>
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
Operations
----------
. Environmental Control Unit
This test case verifies the functionality of the Environmental Control Unit
(ECU), which includes fan control, electrical power and breaker monitoring, and
the output relays. The test will also demonstrate the Corvis Rack can operate
with [*] disabled for at least [*] at normal operating temps.
. [*]
Demonstrate functional orderwire and [*] link of the [*].
. Module Hot Swap Tests
Demonstrates the systems ability to hot swap various modules [*] without
interrupting service or system performance.
<PAGE>
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
ATTACHMENT 5.3
PRODUCT LIFE
------------
The Product Life for each Product is [*] years.
<PAGE>
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
ATTACHMENT 6
PRICES FOR PRODUCTS AND SERVICES
--------------------------------
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------------------------------------------
CORVIS Product Equipment Description Unit Price
---------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
ONG160/[*] Optical Network Gateway with support for up to [*] Gbps of capacity (any [*]
combination of OC-48/192) Channels. Includes: ONG, Racks, Tx/Rx Shelves,
NE Firmware, Power Supplies
---------------------------------------------------------------------------------------------------------------------
ONG160/[*] Optical Network Gateway with support for up to [*] Gbps of capacity (any [*]
combination of OC-48/192). Includes: ONG, Racks, Tx/Rx Shelves, NE
Firmware, Power Supplies
---------------------------------------------------------------------------------------------------------------------
ONG160/[*] Optical Network Gateway with support for up to [*] Gbps of capacity (any [*]
combination of OC-48/192). Includes: ONG, Racks, Tx/Rx Shelves, NE
Firmware, Power Supplies
---------------------------------------------------------------------------------------------------------------------
ONG160/[*] Optical Network Gateway with support for up to [*] Gbps of capacity (any [*]
combination of OC-48/192). Includes: ONG, Racks, Tx/Rx Shelves, NE
Firmware, Power Supplies
---------------------------------------------------------------------------------------------------------------------
ONG160/[*] Optical Network Gateway with support for up to [*] Gbps of capacity (any [*]
combination of OC-48/192). Includes: ONG, Racks, Tx/Rx Shelves, NE
Firmware, Power Supplies
---------------------------------------------------------------------------------------------------------------------
ONG160/[*] Optical Network Gateway with support for up to [*] Gbps of capacity (any [*]
combination of OC-48/192). Includes: ONG, Racks, Tx/Rx Shelves, NE
Firmware, Power Supplies
---------------------------------------------------------------------------------------------------------------------
ONG RTUs Optical Network Gateway Right to Use: Corvis CorManager ONG-160 Node [*]
Software
---------------------------------------------------------------------------------------------------------------------
OADM-[*] Optical Add/Drop Mux with [*] capacity support for OC48. Includes: [*]
Optical Amplifier, OADM, Racks, NE Firmware, Power Supplies
---------------------------------------------------------------------------------------------------------------------
OADM-[*] Optical Add/Drop Mux with [*] capacity support up to [*] Gbps of capacity [*]
(any combination of OC-48/192). Includes: Optical Amplifier, OADM, Racks,
Tx/Rx Shelves, NE Firmware, Power Supplies
---------------------------------------------------------------------------------------------------------------------
OADM-[*] Optical Add/Drop Mux with [*] capacity support up to [*] Gbps of capacity [*]
(any combination of OC-48/192). Includes: Optical Amplifier, OADM, Racks,
Tx/Rx Shelves, NE Firmware, Power Supplies
---------------------------------------------------------------------------------------------------------------------
OADM-[*] Optical Add/Drop Mux with [*] capacity support up to [*] Gbps of capacity [*]
(any combination of OC-48/192). Includes: Optical Amplifier, OADM, Racks,
Tx/Rx Shelves, NE Firmware, Power Supplies
---------------------------------------------------------------------------------------------------------------------
OADM-[*] Optical Add/Drop Mux with [*] capacity support up to [*] Gbps of capacity [*]
(any combination of OC-48/192). Includes: Optical Amplifier, OADM, Racks,
Tx/Rx Shelves, NE Firmware, Power Supplies
---------------------------------------------------------------------------------------------------------------------
OADM-[*] Optical Add/Drop Mux with [*] capacity support up to [*] Gbps of capacity [*]
(any combination of OC-48/192). Includes: Optical Amplifier, OADM, Racks,
Tx/Rx Shelves, NE Firmware, Power Supplies
---------------------------------------------------------------------------------------------------------------------
OADM-[*] RTUs Optical Add/Drop Mux Right to Use: Corvis CorManager OADM-[*] Node Software [*]
---------------------------------------------------------------------------------------------------------------------
OA3200 Optical Line Amplifier. Equipment Includes: Optical Amplifier, NE [*]
Firmware, Power Supplies
---------------------------------------------------------------------------------------------------------------------
OA3200 RTUs Optical Line Amplifier Right to Use: Corvis CorManager OA3200 Node Software [*]
---------------------------------------------------------------------------------------------------------------------
OC-192 OC-192 Interface [*]
---------------------------------------------------------------------------------------------------------------------
OC-48 OC-48 Interface [*]
---------------------------------------------------------------------------------------------------------------------
CORWave NOC 3rd Party CorWave TM NOC Equipment (NMS 3rd party Hardware & software).
H/W + S/W
---------------------------------------------------------------------------------------------------------------------
SUN Server E450 [*]
Class
---------------------------------------------------------------------------------------------------------------------
SUN Server E3500 [*]
Class
---------------------------------------------------------------------------------------------------------------------
SUN Server E3500 [*]
High Availability
Class
---------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
<TABLE>
<S> <C> <C>
---------------------------------------------------------------------------------------------------------------------
CorWave TM NOC CorWave TM NOC Application Software (required for each NOC work station) [*]
Application Software
---------------------------------------------------------------------------------------------------------------------
License Fee Required for each seat [*] per licensed copy of the NOC Application Software [*]
---------------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<S> <C> <C>
---------------------------------------------------------------------------------------------------------------------
Annual Software Annual Maintenance Fee for Corvis CorWave software. [*]
Maintenance Fee for
CorWave NOC
---------------------------------------------------------------------------------------------------------------------
Engineering, Installation, Engineering, Installation, System Turn-Up and Test for Network Management [*]
System Turn-Up and (per NOC install).
Test
---------------------------------------------------------------------------------------------------------------------
Engineering, Installation, Engineering, Installation, System Turn-Up and Test for Network Elements [*]
System Turn-Up and (percentage of all NE costs).
Test
--------------------------------------------------------------------------------------------------------------------
Remote TAS Non- Remote TAS Non-Emergency Assistance @ [*]/hour. [*]
Emergency Assistance
--------------------------------------------------------------------------------------------------------------------
On site Technical On site Technical Support @ [*]/day. [*]
Support
--------------------------------------------------------------------------------------------------------------------
Training Training: [*] per seat (a seat is a [*] day course). [*]
--------------------------------------------------------------------------------------------------------------------
Documentation Per additional copy beyond what Corvis is obligated to provide pursuant [*]
to Section 8.1 and per hard copy supplied
--------------------------------------------------------------------------------------------------------------------
</TABLE>
(A) [*]
[*]
In consideration of Customer's commitment to purchase from Corvis and deploy
during the Term a total dollar value of Products equal to the Minimum Deployment
Commitment and Customer's agreement to make a jointly approved press
announcement of this Agreement, Corvis agrees as follows:
(a) [*]
(b) [*]
(c) If, during Calendar Year 2000, Customer purchases from Corvis a total
dollar value of Products equal to or greater U.S. [*], then Customer may
apply the Product Credits against orders placed on and after [*] up to [*]
of the purchase price of Products ordered by Customer [*].
(d) Definitions.
--- -----------
(i) "Calendar Year 2000" means the period commencing on and including
------------------
January 1, 2000 and ending on and including December 31, 2000.
(ii) "Calendar Year 2001" means the period commencing on and including
------------------
January 1, 2001 and ending on and including December 31, 2001.
(iii) "[*] Expiration Date" means either:
-------------------
i. December 31, 2001; or
<PAGE>
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
ii. if the total aggregate dollar value of Products purchased by
Customer from Corvis during Calendar Year 2000 and Calendar
Year 2001 exceeds the Minimum Revenue Commitment, [*].
(iv) "Extended Pricing" means the prices and license fees for the
----------------
Products set forth in this Attachment 6, as such prices and license
fees may, from time to time, be adjusted in accordance with
subsection (a) above.
(v) "Qualifying Products" means Products purchased from Corvis for
-------------------
commercial deployment in North America, but not for laboratory
testing, field trials or other similar purposes.
(vi) [*]
<PAGE>
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
ATTACHMENT 11.1
CORVIS EQUIPMENT TRAINING CLASSES
---------------------------------
<TABLE>
<CAPTION>
------------------------------------------------------------------------------------------------------------
Code Class Target Audience Duration Pre-requisites
------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Corvis Transport Introduction and Basic
T-1 ---------------------------------------
Operation (HW and SW): All operations [*] days
--------------------- personnel
. Overview
. Operation
. Safety
. Turn-up, Provisioning and
Maintenance
. Interpretation of alarm conditions
------------------------------------------------------------------------------------------------------------
Corvis Switching Introduction and
T-2 ---------------------------------
Basic Operation (HW and SW):
--------------------------- All operations [*] days Course T-1
Overview personnel
Operation
Safety
Turn-up, Provisioning and
Maintenance
Interpretation of alarm
conditions
------------------------------------------------------------------------------------------------------------
Transport Installation, Turn-up and
T-3 -----------------------------------
Test:
---- Installation personnel [*] days Course T-1
Safety
Installation, turn-up and test of
Corvis transport Network
Elements (ONG, OA, OADM)
------------------------------------------------------------------------------------------------------------
Switching Installation, Turn-up and
T-4 -----------------------------------
Test:
---- Installation personnel [*] days Courses T-1,
Safety T-2, T-3
Installation, turn-up and test of
Corvis switching Network
Elements (OR)
------------------------------------------------------------------------------------------------------------
Network Operations:
T-5 ------------------ Network Management [*] days Courses T-1 and
Network Management System Center personnel T-2
overview
Installation
Configuration
Performance monitoring
Surveillance
Fault management
------------------------------------------------------------------------------------------------------------
Network Planning and Equipment
T-6 ------------------------------
Engineering:
----------- Network Planning and [*] days Courses T-1, T-2
HW and SW configurations and Engineering personnel and T-5
deployment
Route and capacity planning
Protection schemes
------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
<TABLE>
<S> <C> <C> <C> <C>
------------------------------------------------------------------------------------------------------------
Wavelength planning
Capacity Upgrade strategies
------------------------------------------------------------------------------------------------------------
Field Operations:
T-7 ---------------- Field Technical [*] days Courses T-1, T-2
Safety personnel and T-5
Fault interpretation and
troubleshooting
Capacity upgrade implementation
-------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
ATTACHMENT 12.1
THIRD PARTY SOFTWARE LICENSES
-----------------------------
<TABLE>
<CAPTION>
-------------------------------------------------------------------------------
Item Version
-------------------------------------------------------------------------------
<S> <C>
SNMP (v1) (AdventNet) 2.0
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Solstice Enterprise Manager 3.0
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Solstice OSI 8.1.1 Comm. Platform 8.1.1
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JRE/JVM 1.1.7b and 1.1.8
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</TABLE>
<PAGE>
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
ATTACHMENT 12.6
ESCROW AGREEMENT
----------------
Account Number ______________________
This Agreement is effective _________________, ______ ("Effective Date") among
_____________________________________ ("Escrow Agent"), Corvis Corporation
("Depositor") and Broadwing Communications Services, Inc. ("Preferred
Beneficiary"), who collectively may be referred to in this Agreement as "the
parties."
A. Depositor and Preferred Beneficiary have entered into a Procurement
Agreement dated ________________, ______ regarding certain proprietary
technology of Depositor (referred to in this Agreement as the "Procurement
Agreement").
B. Depositor desires to avoid disclosure of its proprietary technology except
under certain limited circumstances.
C. The availability of the proprietary technology of Depositor is critical to
Preferred Beneficiary in the conduct of its business and, therefore, Preferred
Beneficiary needs access to the proprietary technology under certain limited
circumstances.
D. Depositor and Preferred Beneficiary desire to establish an escrow with
Escrow Agent to provide for the retention, administration and controlled access
of the proprietary technology materials of Depositor.
E. The parties desire this Agreement to be supplementary to the Procurement
Agreement pursuant to 11 United States Bankruptcy Code, Section 365(n).
ARTICLE 1 -- DEPOSITS
1.1 Obligation to Make Deposit. Within thirty (30) days following successful
--------------------------
completion of the Transport Field Trial (as defined in the Procurement
Agreement), Depositor will deliver to Escrow Agent the proprietary technology
and other materials ("Deposit Materials") identified on Exhibit A attached
hereto. Exhibit A will be prepared and signed by Depositor and Preferred
Beneficiary. Escrow Agent will have no obligation with respect to the
preparation, signing or delivery of Exhibit A. (Exhibit A will be defined after
the Field Trial.)
1.2 Identification of Tangible Media. Prior to the delivery of the Deposit
--------------------------------
Materials to Escrow Agent, Depositor will conspicuously label for identification
each document, magnetic tape, disk, or other tangible media upon which the
Deposit Materials are written or stored. Additionally, Depositor will complete
Exhibit B to this Agreement by listing each such tangible media by the item
label description, the type of media and the quantity. The Exhibit B (to be
defined after the field trial) must be signed by Depositor and delivered to
Escrow Agent with the Deposit Materials. Unless and until Depositor makes the
initial deposit with
<PAGE>
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
Escrow Agent, Escrow Agent will have no obligation with respect to this
Agreement, except the obligation to notify the parties regarding the status of
the deposit account as required in Section 2.2 below.
1.3 Deposit Inspection. When Escrow Agent receives the Deposit Materials and
------------------
the Exhibit B, Escrow Agent will conduct a deposit inspection by visually
matching the labeling of the tangible media containing the Deposit Materials to
the item descriptions and quantity listed on the Exhibit B. In addition to the
deposit inspection, Preferred Beneficiary may elect to cause a verification of
the Deposit Materials in accordance with Section 1.6 below.
1.4 Acceptance of Deposit. At completion of the deposit inspection, if Escrow
---------------------
Agent determines that the labeling of the tangible media matches the item
descriptions and quantity on Exhibit B, Escrow Agent will date and sign the
Exhibit B and mail a copy thereof to Depositor and Preferred Beneficiary. If
Escrow Agent determines that the labeling does not match the item descriptions
or quantity on the Exhibit B, Escrow Agent will (a) note the discrepancies in
writing on the Exhibit B; (b) date and sign the Exhibit B with the exceptions
noted; and (c) mail a copy of the Exhibit B to Depositor and Preferred
Beneficiary. Escrow Agent's acceptance of the deposit occurs upon the signing
of the Exhibit B by Escrow Agent. Delivery of the signed Exhibit B to Preferred
Beneficiary is Preferred Beneficiary's notice that the Deposit Materials have
been received and accepted by Escrow Agent.
1.5 Depositor's Representations. Depositor represents as follows:
---------------------------
a. Depositor lawfully possesses all of the Deposit Materials deposited
with Escrow Agent;
b. With respect to all of the Deposit Materials, Depositor has the right
and authority to grant to Escrow Agent and Preferred Beneficiary the
rights as provided in this Agreement;
c. The Deposit Materials are not subject to any lien or other
encumbrance;
d. The Deposit Materials consist of the proprietary technology and other
materials identified in Exhibit A; and
e. The Deposit Materials are readable and useable in their current form
or, if the Deposit Materials are encrypted, the decryption tools and
decryption keys have also been deposited.
1.6 Verification. Preferred Beneficiary will have the right, at Preferred
------------
Beneficiary's expense, to cause a verification of any Deposit Materials. A
verification determines, in different levels of detail, the accuracy,
completeness, sufficiency and quality of the Deposit Materials. If a
verification is elected after the Deposit Materials have been delivered to
Escrow Agent, then only Escrow Agent, or at Escrow Agent's election an
independent person or company selected and supervised by Escrow Agent , may
perform the verification.
1.7 Deposit Updates. Unless otherwise provided by the Procurement Agreement,
---------------
Depositor will update the Deposit Materials within 60 days after each release of
a new version of the product that is subject to the Procurement Agreement. Such
updates will be added to the existing deposit. All deposit updates will be
listed on a new Exhibit B and the new Exhibit B will be signed by Depositor.
Each Exhibit B will be held and maintained separately within the escrow account.
An independent record will be created which will document the activity for each
Exhibit B. The processing of all deposit updates will be in accordance with
Sections 1.2 through 1.6 above. All references in this Agreement to the Deposit
Materials will include the initial Deposit Materials and any updates.
<PAGE>
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
1.8 Removal of Deposit Materials. The Deposit Materials may be removed and/or
----------------------------
exchanged only on written instructions signed by Depositor and Preferred
Beneficiary, or as otherwise provided in this Agreement.
ARTICLE 2 -- CONFIDENTIALITY AND RECORD KEEPING
2.1 Confidentiality. Escrow Agent will maintain the Deposit Materials in a
---------------
secure, environmentally safe, locked facility which is accessible only to
authorized representatives of Escrow Agent. Escrow Agent will have the
obligation to reasonably protect the confidentiality of the Deposit Materials.
Except as provided in this Agreement, Escrow Agent will not disclose, transfer,
make available, or use the Deposit Materials. Escrow Agent will not disclose the
content of this Agreement to any third party. If Escrow Agent receives a
subpoena or other order of a court or other judicial tribunal pertaining to the
disclosure or release of the Deposit Materials, Escrow Agent will immediately
notify the parties to this Agreement. It will be the responsibility of Depositor
and/or Preferred Beneficiary to challenge any such order; provided, however,
that Escrow Agent does not waive its rights to present its position with respect
to any such order. Escrow Agent will not be required to disobey any court or
other judicial tribunal order. (See Section 7.5 below for notices of requested
orders.) Notwithstanding the foregoing, in the event that Escrow Agent receives
any subpoena or order that is not issued pursuant to the procedure detailed in
Section 7.3, Escrow Agent will not comply with such order without first
notifying the parties and permitting the Depositor the opportunity to challenge
such order or to seek to have such order narrowed in a manner acceptable to the
Depositor, as owner of the proprietary information embodied on the Deposit
Materials.
2.2 Status Reports. Escrow Agent will issue to Depositor and Preferred
--------------
Beneficiary a report profiling the account history at least semi-annually.
Escrow Agent may provide copies of the account history pertaining to this
Agreement upon the request of any party to this Agreement.
2.3 Audit Rights. During the term of this Agreement, Depositor and Preferred
------------
Beneficiary will each have the right to inspect the written records of Escrow
Agent pertaining to this Agreement. Any inspection will be held during normal
business hours and following reasonable prior notice.
ARTICLE 3 -- GRANT OF RIGHTS TO ESCROW AGENT
3.1 Title to Media. Depositor hereby transfers to Escrow Agent the title to
--------------
the media upon which the proprietary technology and materials are written or
stored. However, this transfer does not include the ownership of the
proprietary technology and materials contained on the media including any
copyright, trade secret, patent or other intellectual property rights. Title to
all such intellectual property will at all times remain vested in Depositor.
3.2 Right to Make Copies. Escrow Agent will have the right to make copies of
--------------------
the Deposit Materials as reasonably necessary to perform its obligations under
this Agreement. Escrow Agent will copy all copyright, nondisclosure, and other
proprietary notices and titles contained on the Deposit Materials onto any
copies made by Escrow Agent. With all Deposit Materials submitted to Escrow
Agent, Depositor will provide any and all instructions as may be necessary to
duplicate the Deposit Materials including but not limited to the hardware and/or
software needed.
<PAGE>
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
3.3 Right to Transfer Upon Release. Depositor hereby grants to Escrow Agent a
------------------------------
non-exclusive, non-transferable, perpetual and royalty-free license to
sublicense the Deposit Materials to Preferred Beneficiary upon any release of
the Deposit Materials for use by Preferred Beneficiary in accordance with
Section 4.5. Except upon such a release or as otherwise provided in this
Agreement, Escrow Agent will not sublicense or otherwise transfer the Deposit
Materials or permit Preferred Beneficiary to make use of the Deposit Materials.
It is expressly understood and agreed that Escrow Agent is not authorized to
enter into any sublicense or similar agreement with Preferred Beneficiary that
alters the terms of this Section 3.3. In case of any conflict between the
provisions of this Section 3.3 (or Section 4.5) and the provisions of the
Procurement Agreement relating to the scope of the Preferred Beneficiary's
license upon release from escrow, the provisions of the Procurement Agreement
will control.
ARTICLE 4 -- RELEASE OF DEPOSIT
4.1 Release Conditions. As used in this Agreement, "Release Condition" will
------------------
mean the following:
a. Depositor is in material breach of its support obligations, as
described in the Maintenance and Support Services and Other Services
pursuant to Article 19 of the Procurement Agreement, that is not cured
within a reasonable period of time and that has a material adverse
impact on Preferred Beneficiary's ability to conduct its business with
the Depositor's Products; or
b. Depositor is the subject of a voluntary or involuntary bankruptcy or
dissolution proceedings (that are not discharged within 60 days after
they are filed, in the case of involuntary proceedings).
4.2 Request for Release. If Preferred Beneficiary believes in good faith that
-------------------
a release condition has occurred, Preferred Beneficiary may provide Escrow Agent
written notice that a Release Condition and a request for release of the Deposit
Materials. The request will include instructions to Escrow Agent for
accomplishing the release, and a description in full detail of the release
condition that Preferred Beneficiary believes occurred. Escrow Agent will
immediately send the notice to Depositor by overnight carrier.
4.3 Release by Escrow Agent. Escrow Agent will 10 days after Depositor's
-----------------------
receipt of the notice of request for release, release the Deposit Materials to
Preferred Beneficiary pursuant to the instructions included in the request for
release, unless Depositor disputes that a release condition has occurred.
Subject to section 5.2, Escrow Agent will continue to store the Deposit
Materials without release pending (a) joint instructions from Depositor and
Preferred Beneficiary, (b) resolution pursuant to the Dispute Resolution
provisions or (c) order of a court.
4.4 Release of Deposit. If Escrow Agent does not receive notice that Depositor
------------------
disputes the condition of release and demand for submission to arbitration then
Escrow Agent is authorized to release the Deposit materials to the Preferred
Beneficiary or if more than one beneficiary is registered to the deposit, to
release a copy of the Deposit Materials to the Preferred Beneficiary. However,
Escrow Agent is entitled to receive any fees due Escrow Agent before making the
release. Any copying expense in excess of $300 will be chargeable to the
Preferred Beneficiary. This Agreement will terminate upon the release of the
Deposit Materials held by Escrow Agent. In the event that Escrow Agent does
receive notice that Depositor disputes the release condition and demands
arbitration and subsequently receives (a) joint instructions from Depositor and
Preferred Beneficiary; (b) resolution pursuant to the Dispute Resolution
provisions; or (c) order of a
<PAGE>
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
court, Escrow Agent will release a copy of the Deposit Materials to the
Preferred Beneficiary in accordance with such joint instructions from Depositor
and Preferred Beneficiary; resolution pursuant to the Dispute Resolution
provisions; or court order. The provisions of the second, third and fourth
sentences of this Section 4.4 will apply to any such release.
4.5 Right to Use Following Release. Unless otherwise provided in the
------------------------------
Procurement Agreement, upon release of the Deposit Materials in accordance with
this Article 4, Preferred Beneficiary will have the non-exclusive, non-
transferable, right to use the Deposit Materials for the sole purpose of
continuing the benefits afforded to Preferred Beneficiary by the Procurement
Agreement. Preferred Beneficiary will be obligated to maintain the strict
confidentiality of the released Deposit Materials, including maintaining such
Deposit Materials in a single, access restricted, and locked location.
Preferred Beneficiary will provide access to the released Deposit Materials to
only those of its personnel who require such access for supporting Customer's
use of the Products sold or licensed to Customer under the Procurement Agreement
and Customer will maintain a written list of such personnel. Without limiting
the foregoing, the Deposit Materials will also be protected as Corvis'
Proprietary Materials under Article 15 of the Procurement Agreement. Receipt by
Preferred Beneficiary of the Deposit Materials pursuant to this Article 4 does
not in any way convey title or ownership of the Depositor products or the
intellectual property rights embodied in the products. Preferred Beneficiary
may subcontract to third parties maintenance and support work permitted under
this Section 4.5; provided all such third parties enter into a written agreement
containing terms equivalent to those contained in the Procurement Agreement
regarding Depositor's confidential information and preservation of Depositor's
proprietary rights. Preferred Beneficiary will provide signed copies of all
such agreements to Depositor before providing any such party with access to the
Deposit Materials.
4.6 Preferred Beneficiary will place all Deposit Materials (including all
copies and extracts thereof) in another escrow under terms similar to this
Agreement if and when Depositor is able to demonstrate to Preferred
Beneficiary's reasonable satisfaction that Depositor is able and willing to
resume performance of its support obligations, as described in the Maintenance
and Support Services pursuant to Article 19 of the Procurement Agreement.
ARTICLE 5 -- TERM AND TERMINATION
5.1 Term of Agreement. The initial term of this Agreement is for a period of
-----------------
one year. Thereafter, this Agreement will automatically renew from year-to-year
unless (a) Depositor and Preferred Beneficiary jointly instruct Escrow Agent
in writing that the Agreement is terminated; or (b) the Agreement is terminated
by Escrow Agent for nonpayment in accordance with Section 5.2. If the Deposit
Materials are subject to another escrow agreement with Escrow Agent, Escrow
Agent reserves the right, after the initial one year term, to adjust the
anniversary date of this Agreement to match the then prevailing anniversary date
of such other escrow arrangements.
5.2 Termination for Nonpayment. In the event of the nonpayment of fees owed to
--------------------------
Escrow Agent, Escrow Agent will provide written notice of delinquency to all
parties to this Agreement. Any party to this Agreement will have the right to
make the payment to Escrow Agent to cure the default. If the past due payment is
not received in full by Escrow Agent within one month of the date of such
notice, then Escrow Agent will have the right to terminate this Agreement at any
time thereafter by sending written notice of termination to all parties. Escrow
Agent will have no obligation to take any action under this Agreement so long as
any payment due to Escrow Agent remains unpaid.
<PAGE>
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
5.3 Disposition of Deposit Materials Upon Termination. Upon termination of this
-------------------------------------------------
Agreement, Escrow Agent will destroy, return, or otherwise deliver the Deposit
Materials in accordance with Depositor's instructions. If there are no
instructions, Escrow Agent may, at its sole discretion, destroy the Deposit
Materials or return them to Depositor. Escrow Agent will have no obligation to
return or destroy the Deposit Materials if the Deposit Materials are subject to
another escrow agreement with Escrow Agent.
5.4 Survival of Terms Following Termination. Upon termination of this
---------------------------------------
Agreement, the following provisions of this Agreement will survive:
a. Depositor's Representations (Section 1.5);
b. The obligations of Escrow Agent and Preferred Beneficiary to maintain
confidentiality with respect to the Deposit Materials;
c. The rights granted in the sections entitled Right to Transfer Upon
Release (Section 3.3) and Right to Use Following Release (Section
4.5), if a release of the Deposit Materials has been made using the
procedure described in Article 4 prior to termination;
d. The obligation to pay Escrow Agent any fees and expenses due; and
e. The provisions of Sections 7.1 and 7.2.
ARTICLE 6 -- ESCROW'S FEES
6.1 Fee Schedule. Escrow Agent is entitled to be paid its standard fees and
------------
expenses applicable to the services provided. Escrow Agent will notify the party
responsible for payment of Escrow Agent's fees at least 90 days prior to any
increase in fees. For any service not listed on Escrow Agent 's standard fee
schedule, Escrow Agent will provide a quote prior to rendering the service, if
requested.
6.2 Payment Terms. Escrow Agent will not be required to perform any service
-------------
unless the payment for such service and any outstanding balances owed to Escrow
Agent are paid in full. Fees are due upon receipt of a signed contract or
receipt of the Deposit Materials whichever is earliest. If invoiced fees are not
paid, Escrow Agent may terminate this Agreement in accordance with Section 5.2.
Late fees on past due amounts will accrue interest at the rate of one and one-
half percent per month (18% per annum) from the date of the invoice.
ARTICLE 7 -- LIABILITY AND DISPUTES
7.1 Right to Rely on Instructions. Escrow Agent may act in reliance upon any
-----------------------------
instruction, instrument, or signature reasonably believed by Escrow Agent to be
genuine. Escrow Agent may assume that any employee of a party to this Agreement
who gives any written notice, request, or instruction has the authority to do
so. Escrow Agent will not be responsible for failure to act as a result of
causes beyond the reasonable control of Escrow Agent.
7.2 Indemnification. Escrow Agent will be responsible to perform its
---------------
obligations under this Agreement and to act in a reasonable and prudent manner
with regard to this escrow arrangement. Provided Escrow
<PAGE>
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
Agent has acted in the manner stated in the preceding sentence, Depositor and
Preferred Beneficiary each agree to indemnify, defend and hold harmless Escrow
Agent from any and all claims, actions, damages, arbitration fees and expenses,
costs, attorney's fees and other liabilities incurred by Escrow Agent relating
in any way to this escrow arrangement.
7.3 Dispute Resolution. (a) Any dispute relating to or arising from this
------------------
Agreement will be resolved by arbitration under the Commercial Arbitration Rules
of the American Arbitration Association. Unless otherwise agreed by Depositor
and Preferred Beneficiary, arbitration will take place in Boston, Massachusetts,
U.S.A. Service of a petition to confirm the arbitration award may be made by
First Class mail or by commercial express mail, to the attorney for the party
or, if unrepresented, to the party at the last known business address. Depositor
and Preferred Beneficiary will submit any dispute relating to the release of
Deposit Materials to the jurisdiction of a board of arbitrators (the "Board")
sitting in Boston, Massachusetts for resolution and will so notify Escrow Agent.
The Board will be selected within thirty (30) days from the date of the filing
of the notice of a dispute by Escrow Agent under Section 4.3 (or other location
or time mutually agreeable to Depositor and Preferred Beneficiary). The Board
will comprise three (3) members, one selected by Depositor, one selected by
Preferred Beneficiary and the third chosen by the two members so selected, or if
they cannot agree, by the American Arbitration Association. The sole question
before the Board will be whether or not Depositor or Preferred Beneficiary is
entitled to have the Deposit Materials released from escrow. The Board will have
no authority to order a modification or amendment of this Agreement or the
Procurement Agreement. The decision of the Board will be forthwith delivered to
Escrow Agent, Depositor and Preferred Beneficiary, will be final and binding on
Depositor and Preferred Beneficiary, and judgment thereon may be entered in any
court of competent jurisdiction. Service of a petition to confirm the
arbitration award may be made by First Class mail or by commercial express mail,
to the attorney for the party or, if unrepresented, to the party at the last
known business address. The dispute resolution procedures outlined above may be
followed for any other dispute arising out of this Agreement, but the timetables
established above will be adjusted by agreement of the effected parties to
account for the event that triggers the desire of any party to seek arbitration.
The limitations on the authority of the Board enumerated above will apply to any
arbitration pursued under this Agreement.
(b) All fees charged by the Board will be paid by the nonprevailing party
to the arbitration. Each of Depositor and Preferred Beneficiary, however, will
be responsible for payment of all fees and expenses connected with the
presentation of its respective case, except that the Board may award such
reasonable fees and expenses of presentation, including counsel fees, to the
prevailing party in the event that the Board determines that the contentions of
the nonprevailing party were made in bad faith or without reasonable
justification.
7.4 Controlling Law. This Agreement is to be governed and construed in
---------------
accordance with the laws of the State of New York, without regard to its
conflict of law provisions.
7.5 Notice of Requested Order. If any party intends to obtain an order from
-------------------------
the arbitrator or any court of competent jurisdiction that may direct Escrow
Agent to take, or refrain from taking any action, that party will:
a. Give Escrow Agent at least two business days' prior notice of the
hearing;
b. Include in any such order that, as a precondition to Escrow Agent's
obligation, Escrow Agent be paid in full for any past due fees and be
paid for the reasonable value of the services to be rendered pursuant
to such order; and
<PAGE>
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
c. Ensure that Escrow Agent not be required to deliver the original (as
opposed to a copy) of the Deposit Materials if Escrow Agent may need
to retain the original in its possession to fulfill any of its other
duties.
ARTICLE 8 -- GENERAL PROVISIONS
8.1 Entire Agreement. This Agreement, which includes the Exhibits described
----------------
herein, embodies the entire understanding among the parties with respect to its
subject matter and supersedes all previous communications, representations or
understandings, either oral or written. Escrow Agent is not a party to the
Procurement Agreement between Depositor and Preferred Beneficiary and has no
knowledge of any of the terms or provisions of any such Procurement Agreement.
Escrow Agent's only obligations to Depositor or Preferred Beneficiary are as set
forth in this Agreement. No amendment or modification of this Agreement will be
valid or binding unless signed by all the parties hereto, except that Exhibit A
need not be signed by Escrow Agent, Exhibit B need not be signed by Preferred
Beneficiary and Exhibit C need not be signed.
8.2 Notices. All notices, invoices, payments, deposits and other documents and
-------
communications will be given to the parties at the addresses specified in the
attached Exhibit C. It will be the responsibility of the parties to notify each
other as provided in this Section in the event of a change of address. The
parties will have the right to rely on the last known address of the other
parties. Unless otherwise provided in this Agreement, all documents and
communications may be delivered by First Class mail.
8.3 Severability. In the event any provision of this Agreement is found to be
------------
invalid, voidable or unenforceable, the parties agree that unless it materially
affects the entire intent and purpose of this Agreement, such invalidity,
voidability or unenforceability will affect neither the validity of this
Agreement nor the remaining provisions herein, and the provision in question
will be deemed to be replaced with a valid and enforceable provision most
closely reflecting the intent and purpose of the original provision.
8.4 Successors. This Agreement will be binding upon and will inure to the
----------
benefit of the successors and assigns of the parties. However, Escrow Agent
will have no obligation in performing this Agreement to recognize any successor
or assign of Depositor or Preferred Beneficiary unless Escrow Agent receives
clear, authoritative and conclusive written evidence of the change of parties.
8.5 Regulations. Depositor and Preferred Beneficiary are responsible for and
-----------
warrant compliance with all applicable laws, rules and regulations, including
but not limited to customs laws, import, export, and re-export laws and
government regulations of any country from or to which the Deposit Materials may
be delivered in accordance with the provisions of this Agreement.
8.6 Conflict of Interest. Escrow Agent will not pay any commissions, fees or
--------------------
rebates of significant value to any employees of Depositor or Preferred
Beneficiary, nor favor any employee of Depositor or Preferred Beneficiary with
gifts or entertainment of significant value. If Depositor or Preferred
Beneficiary has reasonable cause to believe that this provision has been
violated, Escrow Agent agrees to cooperate with Depositor or Preferred
Beneficiary in its investigation.
<PAGE>
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
Corvis Corporation Broadwing Communications Services, Inc.
Depositor Preferred Beneficiary
By:_________________________________ By:___________________________________
Name:_______________________________ Name:_________________________________
Title:______________________________ Title:________________________________
Date:_______________________________ Date:_________________________________
[*]
Escrow Agent
By:
Name:
Title:
Date:
<PAGE>
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
ATTACHMENT 16.1
WARRANTY PERIOD
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The Warranty Period shall be [*] years.
<PAGE>
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
ATTACHMENT 19
MAINTENANCE AND SUPPORT SERVICES AND OTHER SERVICES
---------------------------------------------------
The Corvis Support Program includes the following maintenance services:
. 24 X 7 Corvis Networks Technical Assistance Center (TAC)
. Emergency priority access to TAC
. Non-emergency Technical Assistance Center (TAC)
. Basic software maintenance (patches and maintenance releases)
. Repair and Return - Basic
. Repair and Return - Advanced Replacement
The price for the Corvis Support Program is as follows:
<TABLE>
<CAPTION>
Standard Services Optional
Maintenance Services Annual Fee as a % Fee as of %
of Network Element Price of Network Element Price
--------------------------------------------------------------------------------------------------
<S> <C> <C>
Repair and Return - Basic [*]%
Emergency TAC Telephone Support [*]%
Basic software maintenance support [*]% $[*] per hour
Non-emergency TAC Telephone Support [*]% [*]%
Repair and Return - Advanced Replacement -
--------------------------------------------------------------------------------------------------
</TABLE>
Customer must include all Corvis Products under the Standard Corvis Support
Program in order to be eligible for maintenance of any Products or the Repair
and Return - Advanced Replacement program. The Annual Fees for the Corvis
Support Program and the Repair and Return - Advanced Replacement Program are due
upon shipment of the associated Network Element (pro rated for the portion of
the calendar year remaining). The term of the Corvis Support Program for
individual shipments made during a calendar year shall end on December 31 of
each applicable year, and shall be renewed for the ensuing 12-month period
effective January 1 of each year. Corvis shall invoice Customer for the Corvis
Support Program at the commencement of each calendar year for such calendar
year.
Maintenance Services descriptions are provided below:
1.0 Corvis Emergency Technical Assistance Center (TAC)
.1 Staffing and Availability The Corvis Support Program provides priority
Customer telephonic access to the Corvis Technical Assistance Center
(TAC) 7 days per week and 24 hours per day. Corvis will provide
Customer with the proper telephone number and procedures for contacting
the TAC. TAC personnel provide problem status information to Customer
for serious problems and are the interface to Corvis Management and
Development Engineering.
<PAGE>
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
.2 Scope of Activities In addition to support on problem determination
and resolution, the following information and services are available
through the TAC: technical tips, hardware information, software release
notes, information on pending software updates, problem status report
updates, and documentation updates.
.3 Problem Handling Procedures All problems reported to the TAC will be
assigned a Severity Classification. The Severity Level will be agreed
upon between Corvis and Customer according to the table below.
<TABLE>
<CAPTION>
----------------------------------------------------------------------------------------------------------------------------------
Severity Description Escalation Procedure/Response Time
----------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C>
1 Critical - Customer is experiencing a network outage Corvis [*] and Customer Service will be immediately notified.
that prevents its customers from accessing service and Corvis personnel will update Customer at least hourly and will
for which there is no workaround or recovery action work on the problem until resolution.
possible.
----------------------------------------------------------------------------------------------------------------------------------
2 Major - Customer is experiencing a problem that Corvis Level 3 personnel will resolve the problem within four
affects service but for which there is a work-around hours or escalate to Development Engineering. Corvis personnel
or recovery action. Business can continue although will update Customer at least every two hours.
performance may be degraded.
----------------------------------------------------------------------------------------------------------------------------------
3 Minor - Customer is experiencing problems and requires Severity 3 problems will be resolved by Corvis in a reasonable
technical advice or a recommendation for the best period of time or will be escalated to Development Engineering.
solution. Severity 3 problems have a reliable
workaround and have, at most, a slight impact on the
operational environment.
----------------------------------------------------------------------------------------------------------------------------------
4 Questions (Non Emergency) Questions received by the TAC will be logged and answered in a
timely manner.
----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Corvis will meet its priority response goal as provided herein at a [*]
effectiveness level for any calendar month. Should Corvis fail to meet its
response goal at least [*] in any calendar month, Customer maintenance Service
credits of [*] will be credited back and may be applied towards renewals/future
service contracts.
The effectiveness level shall be calculated for any given month in
accordance with the following formula with Total Missed Calls being the number
of Severity 1 and Severity 2 Support calls for which priority support was not
delivered within [*] (Missed Calls) of the initial call.
Effectiveness Calculation equals: Total Calls per Month - Total Missed Calls
------------------------------------------
Total Calls per Month
2.0 Software Maintenance Support. Software Maintenance Support is also
provided through the TAC. Software Maintenance includes patch releases of
software to correct reported problems, maintenance releases, upgrades to system
base software in new releases and other software updates that are made generally
available at no additional charge from time to time. Software maintenance
releases will be made available via magnetic media or remote download, as
appropriate. Major releases are anticipated to be made by Corvis [*]. New
software features and functionality offered in major new releases, if priced
separately, are not included in Software Maintenance Support. Additionally, any
incremental hardware required to support additional software is priced
separately.
<PAGE>
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
In addition to software patches and maintenance releases, Corvis will provide
Customer with revision releases, including installation, verification, and
uninstall procedures, and other documentation, pertaining to problem status,
code corrections, work-around procedures and known limitations of Corvis
products.
In addition to the individual software releases referred to above, Corvis
will from time to time make available to Customer, subject to the applicable
license fees, "Baseline Package Releases" consisting of groups of Corvis'
software Products. Notwithstanding anything to the contrary in the Agreement,
Corvis will only be obligated to provide support for the current and [*]
Baseline Package Releases made available by Corvis. Corvis' obligation to
support any version of Third Party Software will be subject to the continuing
availability of support from the third party vendor for such version. Corvis
will not be obligated to provide services to correct any error or defect in any
Corvis Product that can be corrected by Customer's installation of a more recent
software release available from Corvis.
3.0 Repair and Return. Basic
Corvis will supply replacement components for Products that have failed. The
customer is responsible for first calling Corvis Customer Repair and getting a
Return Material Authorization number. The customer is responsible for sending
the faulty component to the Corvis designated location along with the assigned
RMA# for that module/component. Customer is responsible for packing material,
shipping enclosure and all necessary documentation to facilitate the return of
the defective component to Corvis. Requests for Basic Repair and Return on
replacement module/components received by Corvis by 3:00 p.m. Eastern Time will
generally be processed and sent back to customer within [*] of receiving the
faulty module/component. Requests made after 3:00 p.m. Eastern Time or on
weekends or Corvis holidays will be processed the next business day.
4.0 Repair and Return. Advanced Replacement
Corvis will supply replacement components for products that have failed. As a
prerequisite to advance replacement service, Customer must establish a sparing
depot. Depot inventory must be maintained at the Corvis recommended minimum
sparing levels.
Should Corvis determine that the failure is due to faulty hardware, Corvis
will send replacement component(s) to the designated depot location. Included
with such component(s) will be packing material, a prepaid shipping enclosure
and all necessary documentation to facilitate the return of the defective
component to Corvis by Customer or Customer personnel. Corvis will assume all
costs associated with the shipment of the replacement component(s) and the
return of the failed component(s). Customer shall return the malfunctioning
hardware product to Corvis within [*] of the receipt of the replacement product.
Should Corvis determine that the cards are fully functional and are "no fault
found" in accordance with Corvis fault diagnostic and testing procedures, Corvis
will invoice customer for the replacement component, associated testing and all
shipping and shipping related costs.
<PAGE>
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
Advance replacement requests received at the Corvis TAC by 3:00 p.m. Eastern
Time will be processed [*]. Corvis will make all reasonable commercial efforts
to effect delivery of the replacement hardware component into the designated
sparing depot(s) by [*] for those locations where international customs need not
be cleared. Requests made after 3:00 p.m. Eastern Time or on weekends or Corvis
holidays will be processed on the [*].
It is Corvis' intention to use Customer's preferred carrier for shipments to
Customer contingent upon availability, quality, pricing, and terms and
conditions of service that such carrier makes available to Corvis. In all cases,
Corvis will use an internationally recognized carrier. Should Corvis elect not
to use Customer's preferred carrier, Corvis will notify Customer and will, at
Customer's option, assume responsibility for package tracking.
<PAGE>
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
ATTACHMENT 28
PRODUCT SPECIFICATIONS
----------------------
Corvis System Specifications
The Corvis system comprises a number of network elements, which can be
configured to form point to point and mesh network connections. The maximum
span distance that any of the [*] channels can traverse before electronic
regeneration depends on the individual fiber types and span losses between
optical amplifier sites. The Corvis Wave Planner automatically determines
appropriate locations for each of the network elements and regeneration sites
based on the actual span losses and fiber types in the system.
Tables 2 and 3 specify the system performance under the following assumptions:
1. all span losses in the system are identical;
2. absolute value of fiber dispersion is greater than [*] for all
channels;
3. all spans consist of Corning-LS or Lucent TrueWave-Classic, Plus, or RS
fiber and have an average [*];
4. the maximum transmission distance is 3200 km; and,
5. the system is operated using the parameters listed in Table 1.
Table 1: System Parameters
<TABLE>
<CAPTION>
--------------------------------------------------------------------------
Parameter Value Units
--------------------------------------------------------------------------
<S> <C> <C>
Amplifier Input Connector Loss 0.2 dB
--------------------------------------------------------------------------
Amplifier Output Connector Loss 0.2 dB
--------------------------------------------------------------------------
Operating Range 1530-1564 nm
--------------------------------------------------------------------------
Maximum System Gain Flatness Variation [*] dB
--------------------------------------------------------------------------
Maximum Amplifier Gain [*] [*] dB
--------------------------------------------------------------------------
[*] (See note 1) [*] dB
--------------------------------------------------------------------------
Nominal Fiber Launch Power / Channel [*] dBm
--------------------------------------------------------------------------
Equivalent OSNR at Fiber Launch [*] dB.nm
--------------------------------------------------------------------------
Maximum accumulated dispersion (See note 2) [*] ps/nm
--------------------------------------------------------------------------
Receiver Sensitivity [*] [*] dB.nm
--------------------------------------------------------------------------
Minimum EOL System Margin (See Note 3) [*] dB
--------------------------------------------------------------------------
Additional EOL System Margin Connector Penalty [*] dB
--------------------------------------------------------------------------
</TABLE>
Note 1: Total loss = span loss + amplifier module loss.
Note 2: [*]
Note 3: The Minimum EOL margin includes the following:
[*]dB [*]
[*]dB [*] variation across all [*] Channels
[*]dB Unallocated margin
<PAGE>
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
Table 2: System Performance using [*]/4-6/
<TABLE>
<CAPTION>
---------------------------------------------------------------
[*] [*] [*]
[*] Number of Spans Number of Spans
EOL Span w/[*] w/[*]
Loss (dB)
---------------------------------------------------------------
<S> <C> <C> <C>
[*] [*] [*] [*]
---------------------------------------------------------------
[*] [*] [*] [*]
---------------------------------------------------------------
[*] [*] [*] [*]
---------------------------------------------------------------
</TABLE>
Table 3: System Performance using [*]/4-6/
<TABLE>
<CAPTION>
[*] [*] [*] [*]
EOL Span Loss (dB) Number of Spans Number of Spans w/[*]
w/[*]
----------------------------------------------------------------------------
<S> <C> <C> <C>
[*] [*] [*] [*]
----------------------------------------------------------------------------
[*] [*] [*] [*]
---------------------------------------------------------------------------
[*] [*] [*] [*]
---------------------------------------------------------------------------
[*] [*] [*] [*]
---------------------------------------------------------------------------
[*] [*] [*] [*]
---------------------------------------------------------------------------
[*] [*] [*] [*]
---------------------------------------------------------------------------
[*] [*] [*] [*]
---------------------------------------------------------------------------
[*] [*] [*] [*]
---------------------------------------------------------------------------
[*] [*] [*] [*]
---------------------------------------------------------------------------
[*] [*] [*] [*]
---------------------------------------------------------------------------
</TABLE>
Note 4: [*]
Note 5: [*]
Note 6: Based on an Amplifier Module Loss for [*] of [*] dB and a [*] dB
respectively.
The transmission distance can be calculated based on the average loss per km
(dB/km) for a span using the equation:
[*] transmission distance (km) = Minimum (3200,([*] EOL Span Loss)x(# of
spans)/(Average Loss/km).
A sample calculation is shown below for a system with an average loss per km of
0.245 dB/km and a 17 dB EOL span loss using [*].
<TABLE>
<CAPTION>
-------------------------------------------------------------------------------------------------------------------------------
Amp System w/[*] System w/[*]
-------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
[*] Max Distance = (17 dB/span)*([*] spans)/(0.0245 dB/km) Max Distance = (17 dB/span)*([*] spans)/(0.0245 dB/km)
= Min(3200, [*] km) = 3200 km = Min(3200, [*] km) = 3200 km
-------------------------------------------------------------------------------------------------------------------------------
[*] Max Distance = (17 dB/span)*([*] spans)/(0.0245 dB/km) Max Distance = (17 dB/span)*([*] spans)/(0.0245 dB/km)
= Min(3200, [*] km) = 3200 km = Min(3200, [*] km) = [*] km
-------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
Corvis Optical Amplifier
The Corvis Optical Amplifier provides optical amplification of up to [*]
channels that allows for transmission distances up to 3,200 km without
electrical regeneration using Corvis transmitters and receivers. Two Corvis
Optical Amplifiers are provided on a single [*] amplifier shelf for use in two
fiber systems. A single rack can house up to [*] amplifier shelves. The Corvis
Optical Amplifier can be provided in [*] to amplify spans with losses up to [*].
A [*] can be added to either [*] as required to [*] for [*] and the [*] loss is
added to the span loss. The Corvis Optical Amplifier is equipped to transmit
and receive [*] carrying [*] channels, Corvis system supervisory information,
and [*] order wires. A Craft Interface and Environmental Control Unit (ECU) are
provided for local control of the amplifier.
<TABLE>
<CAPTION>
[*] Amplifier
-----------------------------------------------------------------------------------------------
Parameter Nominal Value Units Notes
-----------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Max. Amplifier Gain [*] dB Based on LS, TW-C, TW-P and TW-RS
fiber spans having an average [*]
-----------------------------------------------------------------------------------------------
Operating Range 1530-1564 nm
-----------------------------------------------------------------------------------------------
Gain Flatness over Operating [*] dB
Range
-----------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
[*] Amplifier
-----------------------------------------------------------------------------------------------
Parameter Nominal Value Units Notes
--------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Max. Amplifier Gain [*] dB Based on LS, TW-C, TW-P and TW-
[*] [*] dB RS fiber spans having an average [*]
--------------------------------------------------------------------------------------------
Operating Range 1530-1564 nm
--------------------------------------------------------------------------------------------
Gain Flatness over Operating [*] dB
Range
--------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
-----------------------------------------------
Size and Weight Specification
-----------------------------------------------
<S> <C>
Power -48 volts @ [*] Amps
-----------------------------------------------
Heat Dissipation [*] Watts /Shelf
-----------------------------------------------
Size 84"x24"x24"
-----------------------------------------------
Weight (OA3200L[*]) [*]
-----------------------------------------------
</TABLE>
<PAGE>
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
Corvis Optical Network Gateway
The Corvis Optical Network Gateway (ONG) can be configured to transmit and
receive up to [*] optical signal channels for up to 3,200 km without electrical
regeneration when used with Corvis Optical Amplifiers. [*] racks are required
to house equipment for [*] transmit channels and [*] receive channels according
to the channel plan provided below. [*] ONG rack includes [*] transmit channels
and [*] receive channels along with multiplexing, demultiplexing, and monitoring
equipment. In addition, [*] rack is equipped to transmit and receive [*] and
provides a Craft Interface for local access to the ONG.
<TABLE>
<CAPTION>
------------------------------------------------------------------------------
Parameter Min Typ Max Units Comments
------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Number of channels 160
------------------------------------------------------------------------------
[*] [*] [*] [*]
------------------------------------------------------------------------------
Data Rate per channel [*] Gb/s [*]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Tx Output Power per channel [*] dBm
------------------------------------------------------------------------------
Fiber Launch power per channel [*] dBm
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Rx Input Power per channel [*] dBm
------------------------------------------------------------------------------
Receiver Sensitivity at [*] [*] [*] dB.nm
------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------------
Parameter Value Units Comments
---------------------------------------------------------------------------------------
<S> <C> <C> <C>
Number of Racks - up to [*] Tx/Rx Channels [*]
---------------------------------------------------------------------------------------
Number of Racks - up to [*] Tx/Rx Channels [*]
---------------------------------------------------------------------------------------
Number of Racks - up to [*] Tx/Rx Channels [*]
---------------------------------------------------------------------------------------
Number of Racks - up to [*] Tx/Rx Channels [*]
---------------------------------------------------------------------------------------
Number of Racks - up to [*] Tx/Rx Channels [*]
---------------------------------------------------------------------------------------
Number of Racks - up to [*] Tx/Rx Channels [*]
---------------------------------------------------------------------------------------
Voltage requirements -48 V Standard Voltage
---------------------------------------------------------------------------------------
Power requirements/Rack [*] W
---------------------------------------------------------------------------------------
Dimensions per Rack (WxDxH) 19x24x84 Inches
---------------------------------------------------------------------------------------
</TABLE>
<PAGE>
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
CORVIS Optical Add/Drop Multiplexer [*] (OADM [*])
The OADM [*] allows up to 160 channels of Add Drop access, [*], and [*] of
channels. The OADM [*] is partitioned into [*] section that provides for [*]
and [*], which can be upgraded to provide add/drop functionality by addition of
ONGs. The rack configuration and space requirements depend on the number of
channels accessed in each direction.
<TABLE>
<CAPTION>
-------------------------------------------------------------------------------
Parameter Min Typ Max Units Comments
-------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Number of channels [*] 160
-------------------------------------------------------------------------------
Wavelength range 1530 1564 nm
-------------------------------------------------------------------------------
[*] [*] [*]
-------------------------------------------------------------------------------
[*] [*] [*]
-------------------------------------------------------------------------------
Output optical power per channel [*] [*] [*] dBm
-------------------------------------------------------------------------------
Output optical power (160 channels) [*] [*] [*] dBm
-------------------------------------------------------------------------------
[*] [*] [*] [*]
-------------------------------------------------------------------------------
[*] [*] [*]
-------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
--------------------------------------------------------------------------------------
Parameter Value Units Comments
--------------------------------------------------------------------------------------
<S> <C> <C> <C>
Number of Racks: [*] [*] [*]
--------------------------------------------------------------------------------------
Number of Racks: OADM [*] [*] Up to [*] channels Add/Drop in
each direction
--------------------------------------------------------------------------------------
Number of Racks: OADM [*] [*] Up to [*] channels Add/Drop in
each direction
--------------------------------------------------------------------------------------
Number of Racks: OADM [*] [*] Up to [*] channels Add/Drop in
each direction
--------------------------------------------------------------------------------------
Voltage requirements -48 V Standard Voltage
--------------------------------------------------------------------------------------
Power requirements/Rack [*] W
--------------------------------------------------------------------------------------
Dimensions per Rack (WxDxH) 19x24x84 Inches
--------------------------------------------------------------------------------------
</TABLE>
<PAGE>
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
Channel Plan:
The Corvis system transmits and receives [*] channels [*] as shown in the table
below. [*] resulting in total system capacity of 400 Gb/s. [*] are allocated
in the channel plan [*].
<TABLE>
<CAPTION>
--------------------------------------------------
WavelengthNumber Frequency Wavelength(nm)
(THz)
--------------------------------------------------
<S> <C> <C>
[*] [*] [*]
--------------------------------------------------
</TABLE>
<PAGE>
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
[BROADWING LETTERHEAD]
April 7, 2000
Kim Larsen
General Counsel
Corvis Corporation
7015 Albert Einstein Drive
PO Box 9400
Columbia, Maryland 21046-9400
Dear Kim,
As we discussed, please note the following items which should revised in
the Procurement Agreement between Broadwing Communications Services Inc. and
Corvis Corporation, dated March 17, 2000.
Article 4 "Volume Deployment; Quantities and Delivery Schedules" shall be
amended to read as follows:
4.1 Initial Deployment. Upon successful completion of the Transport Field
Trial, Customer will purchase from Corvis and deploy the Corvis Transport
Equipment and Software in quantities and in configurations priced at U.S.
$200,000,000.00 (the "Minimum Deployment Commitment"), U.S. $100,000,000.00
of which (the "First Year Deployment Commitment") must be ordered within 12
months after the successful completion of the Field Trial with delivery no
later than [*] after such 12 month period, in each case based on the prices
and license fees set forth in Attachment 6. The Minimum Deployment
Commitment and the First Year Deployment Commitment shall be adjusted for
late delivery by Corvis as provided in Section 4.2. Customer will be [*] in
accordance with the terms and conditions of Attachment 6.
4.2 Initial Deployment Schedule; Late Deliveries. Within [*] after
successful completion of the Transport Field Trial, Customer and Corvis
shall agree upon a [*] estimated deployment schedule (the "Estimated
Deployment Schedule") for the Corvis Transport Equipment and Software
constituting the Minimum Deployment Commitment.
<PAGE>
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
If Customer submits Purchase Orders for Corvis Transport Equipment and Software
in accordance with applicable lead times and the amount ordered and previously
shipped does not exceed the Estimated Deployment Schedule, the Minimum
Deployment Commitment and the First Year Deployment Commitment shall each be [*]
the Corvis Transport Equipment and Software Corvis [*] after the agreed delivery
date.
4.3 Non-binding Forecasts. Quantity Forecast. By the [*] business day of
each [*] (the [*] hereafter being "[*]"), Customer will provide to Corvis
a [*] month rolling forecast (the "Rolling Forecast") of deliveries for the
[*] commencing at the beginning of the [*] after the [*] in which the
forecast is made. The Rolling Forecast ([*] through [*]) will show the
quantity of each Product by product code which Customer anticipates it will
need to be delivered during the specified month.
4.4 During the Term of this Agreement, Customer will issue Purchase Orders
specifying the Products ordered, the quantities necessary, the delivery
site or sites (hereinafter the "Specified Site[s]") for the Products and
its proposed delivery schedule.
4.5 All deliveries of Products will be made [*]. Customer agrees to pay
[*] charges. The preceding provisions of this clause are valid for
deliveries in the United States, its possessions and territories only. All
deliveries outside the aforementioned areas will be mutually agreed upon on
a case by case basis.
4.6 Customer will have the right to alter the destination site at least
[*] days prior to Corvis' scheduled shipment date for Products, without
cost or expense to Customer, by timely transmitting Notice to Corvis of the
new Specified Site(s).
4.7 Corvis will execute and deliver to Custumer an order acknowledgment
within [*] after Corvis' receipt of each Purchase Order or, if Corvis
cannot meet the proposed delivery times, the parties shall mutually agree
to appropriate delivery times. If Corvis and Customer cannot agree upon
delivery times, Corvis shall have the right to reject a Purchase Order.
Product order lead times shall be [*] unless otherwise specified by Corvis.
4.8 Customer will purchase on-site installation spares, parts and
components of the Equipment ("Spares Kits" or "Kits") reasonably designated
by Corvis and agreed upon by Corvis and Customer from time to time as the
quantity necessary to enable Corvis to provide the warranty and support
services required by this Agreement. The quantity and locations of the
Kits may change with installation requirements and changes in the topology
of Customer's network.
<PAGE>
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
4.9 [*]
4.10 [*]
Article 28 "Definitions" shall be amended as follows:
"Committed Amounts" shall be deleted.
"Final Deployment Date" shall be deleted.
"Initial Deployment Shortfall" shall be deleted.
"Specified Site" shall reference the definition contained in Section 4.4.
All other definitions shall remain in full force and effect.
Please execute your concurrence by counter-execution below and return at
your earliest convenience.
Sincerely,
/s/ Angela L. Jones
Angela L. Jones
_________________________________
