InterNetworking Systems SERVICES MAINTENANCE AGREEMENT -
TERMS AND CONDITIONS

Lucent Technologies Inc. ("Lucent") and you, the Customer, agree that the following terms and conditions will govern your order for maintenance Service ("Service") listed on the front of this Agreement or in any separate attachment that the parties may agree to ("Attachment"), as applicable. This Agreement may contain additional pages.

1. CONTRACT TERM - This Agreement shall be effective from the date of Lucent's written acceptance until terminated as set forth in Section 8 of this Agreement. Service will commence upon the expiration of the applicable Lucent warranty period or on the Service Start date noted on the front of this Agreement or in an Attachment, and will be provided for an initial term as specified on the front of this Agreement. Service shall be automatically renewed for successive one (1) year terms at the charges and under the terms and conditions applicable to Lucent's standard one (1) year service agreement at the time of renewal, unless either party gives the other written notice of its intent not to renew at least thirty (30) days prior to the expiration of any initial or renewal term.

2. COVERAGE - A. Service includes preventive maintenance as deemed appropriate by Lucent and remedial maintenance, including replacement parts required for products used under normal operating conditions.
B. REPLACEMENT PARTS AND PRODUCTS MAY BE NEW, REMANUFACTURED OR REFURBISHED. Any removed parts and/or products will become the property of Lucent.
C. Service coverage will be in accordance with the option(s) you have selected as listed on the front of this Agreement or in an Attachment. Lucent's standard maintenance coverage will apply if none is selected. Lucent's maintenance service coverage options are described in Lucent Technologies InterNetworking Systems Service Offerings document.
D. Customer may add products for coverage hereunder by executing an amendment to this Agreement. The maintenance charge for such additional products will be based on Lucent's then current rates or such other rates as agreed to in writing by Lucent. Maintenance for added products will be made coterminous with this Agreement.
E. Customer agrees that Lucent: (i) retains all ownership and intellectual property rights (including patent and copyright) vested in any software distributed to Customer hereunder, and (ii) transfers no proprietary rights (through license or otherwise) by way of the provision of the Services.

3. PRODUCT CONDITION - Except for Service commencing upon expiration of the applicable product warranty for products purchased directly from Lucent, it is your responsibility to ensure that covered products are in good operating condition upon commencement of the Service period. Lucent may, at its option, inspect products prior to the Service Start date to determine whether such products are in good operating condition. The cost of such inspection may be charged to you at Lucent's then current rates. Any Service or parts which are necessary to restore the products to good operating condition will be charged to you at Lucent's then current hourly rates and parts prices.

4. SERVICE EXCLUSIONS - A. LUCENT, ITS SUBSIDIARIES AND THEIR AFFILIATES, SUBCONTRACTORS AND SUPPLIERS, MAKE NO EXPRESS OR IMPLIED WARRANTIES HEREUNDER, AND FURTHER SPECIFICALLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
B. Service does not cover repair for damages or malfunctions caused by: (1) actions of non-Lucent personnel or the attachment of products not supported by Lucent; (2) your failure to follow manufacturer's installation, operation or maintenance instructions, including your failure to permit Lucent timely InterNetworking Systems to your product; (3) failure of products not Serviced by Lucent; (4) abuse, misuse or negligent acts of non-Lucent personnel; or (5) force majeure conditions as stated in Section 10. In addition, Lucent is not obligated to provide maintenance service if you modify the product(s). If you request, Lucent will perform repair or other services not covered by this Agreement to your product at Lucent's standard rates for such additional service.

5. PRICE AND PAYMENT - A. You agree to pay the monthly service charges for the initial term and the applicable charges for any renewal terms. Where applicable, you may prepay the entire initial term of the Agreement at the prices set forth in this Agreement. Payment of invoices is due within thirty (30) days from the invoice date. Delinquent payments on any undisputed balance are subject to a late payment charge of the lower of one and one half percent (1.5%) per month or portion thereof, or the maximum amount allowed by law. Restrictive endorsements or other statements on checks will not apply. You agree to reimburse Lucent for reasonable attorney's fees and any other costs associated with collecting delinquent payments.
B. You shall pay taxes levied upon the sale, transfer of ownership, installation, license or use of products or Services, unless you provide Lucent with a tax exemption certificate. Taxes on Lucent's net income are excluded.

6. YOUR RESPONSIBILITIES - Throughout the term of this Agreement and any extensions thereof, you agree to:

  • (a) Follow all of Lucent's installation, operation, software and maintenance instructions;
  • (b) Provide the proper environment and electrical and telecommunications connections as specified by Lucent;
  • (c) Provide access to the products to enable Lucent to perform maintenance;
  • (d) Provide adequate communications facilities, work space and storage space for Lucent spare parts, if required by Lucent; and
  • (e) Maintain a procedure external to the software program(s) and host computer for reconstruction of lost or altered files, data or programs to the extent you deem necessary. Lucent will not be responsible for the cost of reconstructing data stored on disk files, tapes, memories, etc. lost during the performance of Services hereunder.

7. EXCLUSIVE REMEDIES AND LIMITATIONS OF LIABILITY - A. THE ENTIRE LIABILITY OF LUCENT AND ITS SUBSIDIARIES, AFFILIATES, AND SUBCONTRACTORS, (AND THE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, SUBCONTRACTORS AND SUPPLIERS OF ALL OF THEM) AND YOUR EXCLUSIVE REMEDIES FOR ANY DAMAGES CAUSED BY ANY PRODUCT DEFECT OR FAILURE, OR ARISING FROM THE PERFORMANCE OR NON-PERFORMANCE OF ANY WORK OR SERVICE, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, SHALL BE: (1) FOR LUCENT'S FAILURE TO PERFORM ANY MATERIAL TERM OF THIS AGREEMENT (E.G., LUCENT'S MAINTENANCE SERVICE OBLIGATIONS), YOUR SOLE REMEDY SHALL BE TO CANCEL THIS AGREEMENT WITHOUT INCURRING CANCELLATION CHARGES IF LUCENT FAILS TO CORRECT SUCH FAILURE WITHIN THIRTY (30) DAYS OF RECEIPT OF YOUR WRITTEN NOTICE; (2) FOR DAMAGES TO REAL OR TANGIBLE PERSONAL PROPERTY OR FOR BODILY INJURY OR DEATH TO ANY PERSON FOR WHICH LUCENT'S SOLE NEGLIGENCE WAS THE PROXIMATE CAUSE, YOUR RIGHT TO PROVEN DAMAGES TO PROPERTY OR PERSON; AND (3) FOR CLAIMS OTHER THAN SET FORTH ABOVE, LUCENT'S LIABILITY SHALL BE LIMITED TO PROVEN DIRECT DAMAGES IN AN AMOUNT NOT TO EXCEED $100,000.
B. EXCEPT TO THE EXTENT PROVIDED IN SUBSECTION 7.A.(2), LUCENT SHALL NOT BE LIABLE FOR THE FOLLOWING TYPES OF DAMAGES: (1) INCIDENTAL DAMAGES; (2) SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO: LOST PROFITS, SAVINGS OR REVENUES OF ANY KIND, AND CHARGES FOR COMMON CARRIER TELECOMMUNICATION SERVICES OR FACILITIES ACCESSED THROUGH OR CONNECTED TO PRODUCTS ("TOLL FRAUD"). LUCENT SHALL NOT BE LIABLE FOR THE TYPES OF DAMAGES ENUMERATED ABOVE WHETHER OR NOT LUCENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS PARAGRAPH SHALL SURVIVE THE FAILURE OF ANY EXCLUSIVE REMEDY.

8. CANCELLATION/TERMINATION - A. After commencement of Service, you may terminate Service coverage upon thirty (30) days written notice and: (i) payment of a termination charge equal to twenty percent (20%) of the monthly charges for twelve (12) months or twenty percent (20%) of the charges for the period remaining, whichever is less; or (ii) for prepaid agreements, Lucent will refund or credit the pro rata price of the remaining term less a termination charge of twenty percent (20%) of the price for a twelve (12) month period or twenty percent (20%) of the remaining term, whichever is less.
B. If you fail to perform any material term or condition of this Agreement (e.g., fail to pay any charge when due) and such failure continues for thirty (30) days after receipt of written notice, you shall be in default and Lucent may terminate this Agreement and exercise any available rights. Upon termination by Lucent, you shall be liable for the foregoing cancellation and/or termination charges.

9. DISPUTES - A. Any controversy or claim, whether based on contract, tort, strict liability, fraud, misrepresentation, or any other legal theory, related directly or indirectly to this Agreement ("Dispute") shall be resolved solely in accordance with the terms of this Section 9.
B. If the Dispute cannot be settled by good faith negotiation between the parties, the Dispute will be submitted to non-binding mediation. If complete agreement cannot be reached within thirty (30) days of the mediation hearing, any remaining issues will be resolved by binding arbitration in accordance with Sections 9.C and 9.D below, except that Lucent reserves the right to obtain an injunction in court to prevent your use of the products in violation of this Agreement. The Federal Arbitration Act, 9 U.S.C. Sections 1 to 15, not state law, will govern the arbitrability of all Disputes.
C. A single arbitrator who is knowledgeable in the communications field or in commercial matters will conduct the arbitration. The arbitrator's decision and award will be final and binding and may be entered in any court with jurisdiction. The arbitrator will not have authority to modify or expand any of the provisions of this Agreement (e.g., Section 7-the Exclusive Remedies and Limitation of Liability provision of this Agreement).
D. Any mediation or arbitration commenced pursuant to this Agreement will be conducted under the then current rules of the alternate dispute resolution (ADR) firm selected by the parties. If the parties are unable to agree on an ADR firm, the parties will conduct the mediation and, if necessary, the arbitration under the then current rules and supervision of the American Arbitration Association (AAA). Each party will each bear its own attorneys' fees associated with the mediation and, if necessary, the arbitration. Each party will pay all other costs and expenses of the mediation/arbitration as the rules of the selected ADR firm provide.
E. Any Dispute you have against Lucent with respect to this Agreement must be brought in accordance with this Section 9 within two (2) years after the cause of action arises.

10. FORCE MAJEURE - Lucent shall have no liability for failure to perform, or for any damages due to: fire, explosion, lightning, power surges or failures, strikes or labor disputes, acts of God, the elements, war, civil disturbances, acts of civil or military authorities or the public enemy, inability to secure raw materials, transportation facilities, fuel or energy shortages, acts or omissions of communications carriers, unauthorized use of the products, or other causes beyond Lucent's control whether or not similar to the foregoing.

11. ASSIGNMENT - Neither party may assign this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld. However, Lucent may assign this Agreement to a present or future affiliate, subsidiary, successor or distributor or may assign its right to receive payment without your consent.

12. SUBCONTRACTING - Lucent may subcontract work to be performed under this Agreement, but shall retain responsibility for the work.

13. GENERAL - A. Any supplement, modification or waiver of any provision of this Agreement must be in writing and signed by authorized representatives of both parties.
B. If either party fails to enforce any right or remedy available under this Agreement, that failure shall not be construed as a waiver of any right or remedy with respect to any other breach or failure by the other party.
C. In the event that any provision of this Agreement is held invalid, illegal, or unenforceable, the remaining provisions shall be enforced to the maximum extent permitted by law.
D. This Agreement shall be governed by the laws of the State of California, without application of the principles of conflicts of laws.
E. THIS AGREEMENT AND THE LUCENT TECHNOLOGIES SERVICE OFFERINGS DOCUMENT IS THE ENTIRE AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE SERVICES PROVIDED HEREUNDER AND SUPERSEDES ALL PRIOR AGREEMENTS, PROPOSALS, COMMUNICATIONS AND UNDERSTANDINGS BETWEEN THE PARTIES, WHETHER WRITTEN OR ORAL.

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