Sample Business Contracts

OEM Agreement - SDL Communications Inc. and NetScout Systems Inc.

Popular Free Forms

Sponsored Links

SDL Communications Effective Date: 2/3/98
46 Eastman Street
Easton, Massachusetts 02375
USA

SDL COMMUNICATIONS, INC.
OEM AGREEMENT
Dated as of February 3, 1998 between

SDL Communications, Inc.
with its principal place of business at 46 Eastman St., Easton, 02375
(referred to in this Agreement as SDL)
and

NetScout Systems, Inc.
with its principal place of business at 4
Technology Park Drive, Westford, MA 01886
(referred to in this Agreement as Customer)

TERMS OF AGREEMENT

SECTION:

1. SCOPE OF CUSTOMER'S LICENSE
2. OBLIGATIONS OF SDL
3. OBLIGATIONS OF CUSTOMER
4. PRICING & PAYMENT TERMS
5. ORDERS, SHIPMENTS & RETURNS
6. WARRANTIES, INDEMNITIES & REMEDIES
7. CONFIDENTIAL INFORMATION
8. TERM & TERMINATION
9. GENERAL

EXHIBITS:

A. PRODUCT UNDER OEM AGREEMENT
B. PRODUCT PRICING
C. DELIVERY SCHEDULES

SDL COMMUNICATIONS, INC. NETSCOUT SYSTEMS, INC.

By: [ILLEGIBLE SIGNATURE] By: /S/ CHARLES TILLETT

Title: SENIOR V. PRESIDENT Title: VP FINANCE & ADMINISTRATION

<PAGE>

1. SCOPE OF CUSTOMER'S LICENSE

1.01 GRANT OF LICENSE. SDL grants to Customer a non-transferable right and
OEM license to SDL's product or products listed in the statement of
the Terms of Agreement beginning on the first page of this Agreement
(referred to in this Agreement as the Products). The right and license
granted by this Agreement is effective on the date of this Agreement
and will continue in effect by this Agreement, unless terminated in
accordance with Section 8. No right or license to manufacture, copy,
alter, modify or repair the Products is granted to Customer under this
Agreement. SDL will assist the Customer in private labeling options
for the products described in Exhibit A.

1.02 NON-EXCLUSIVE LICENSE. The license granted by SDL to Customer under
this Agreement is nonexclusive. This Agreement shall not limit the
right of SDL to manufacture, market, distribute, sell or promote
anywhere in the world, directly or indirectly, any or all of the
Products being supplied to Customer under this Agreement, or to
license, appoint, hire, or otherwise engage others to do so.

1.03 ESCROW ACCOUNT. SDL will maintain at SDL's expense in an escrow
account, technical information relating to the products in Exhibit A,
solely for the following purpose:

In the event of a filing by or against SDL of a petition for relief
under the United States Bankruptcy Code or similar petition under the
insolvency laws of any jurisdiction, Customer shall have the right to
manufacture all the products being supplied to Customer at that time
under Exhibit A or other products being supplied by SDL to Customer
for a license fee equal to [CONFIDENTIAL TREATMENT REQUESTED]** per
unit of the most recent unit price paid by the Customer.

The "technical information" will include the following:

a) Manufacturing drawings and specifications of raw materials and
components comprising such parts.

b) Manufacturing drawings and specifications covering any special tooling
and the operation thereof.

c) A detailed list of all commercially available parts and components
purchased by SDL on the open market, disclosing the part number, name
and location of the supplier thereof and the price.

d) One (1) complete copy of the then current diagnostics software source
code and all tools used to build the object code from the source code
used in the preparation of any software acquired by Customer by
license or otherwise from SDL.

**[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

<PAGE>

e) All relevant design and user documentation.

f) This information will be updated as design changes occur.

2. OBLIGATIONS OF SDL

2.01 TECHNICAL SUPPORT. Customer will be entitled to ongoing technical
support from SDL, ongoing technical support will be available to
Customer from SDL at no charge. Customer's technical personnel will be
allowed access to all necessary technical documentation and the
appropriate SDL Technical personnel. SDL will make its best efforts to
respond to all technical questions within 8 (eight) business hours. If
deemed necessary by Customer, Customer and SDL will establish a bug
reporting and tracking mechanism that is acceptable to both parties.
SDL will assist Customer with on-site service calls when mutually
agreed upon.

2.02 FULFILLMENT OF PURCHASE ORDERS. SDL shall make it's best effort to
fulfill Customer's purchase orders, this best effort shall be
consistent with the delivery schedule outlined in Exhibit C of this
agreement. In the event there is an event that forces deviation from
the delivery schedule, SDL will inform Customer within 24 hours of
such an event to establish a mutually agreeable next best delivery
date pertaining to the specific product and quantity being delivered.
SDL and Customer will mutually review the delivery schedule for
adjustments, updates,, new products, and agreed upon enhancements at 6
(six) month intervals from the Effective Date of this agreement.

2.03 COMMERCIALLY AVAILABLE PRODUCTS. SDL shall make available all future
non-customized and commercially available products to Customer. SDL
will provide sufficient notification to Customer of the availability
of such products as to allow Customer a reasonable period of time to
integrate such products into Customer, s product offerings. SDL will
also make the relevant technical resources available to Customer to
assist Customer in this product integration process. These products
will be available to Customer for the entire term of this agreement.
Customer will have the right to integrate and utilize such
commercially available SDL products as deemed necessary to Customer's
business interest. SDL will notify Customer on all future commercially
available products within 30 days of the initiation of design by SDL
of all such produces.

2.04 CUSTOMIZED PRODUCTS. SDL may develop mutually defined customized
products for Customer on a forward going basis. SDL and Customer will
define the NRE (Non Recurring Engineering) cost SDL will charge
Customer prior to initiation of the development of such products. In
addition to such costs, Customer will agree to purchase [CONFIDENTIAL
TREATMENT REQUESTED]** upon [CONFIDENTIAL TREATMENT REQUESTED]** of
such customized products from SDL.

<PAGE>

2.05 ENGINEERING CHANGE ORDERS. In the event SDL determines an Engineering
Change Order (ECO) implementation necessary that does not affect in
any way Customer's end-product (finished product) reliability,
functionality or performance (for all the products listed in Exhibit
A, Commercially Available Products defined in Section 2.03 or
Customized Products as defined in Section 2.04), SDL will inform
Customer within 24 hours of the completion of such an Engineering
Change Order (ECO). Whenever requested by Customer, SDL will make
available to Customer, sample products with such ECO changes to allow
customer to verify that such changes do not affect in any way
Customer's end-product reliability, functionality or performance. SDL
will forward an Electronic copy of this ECO detailing the change.
Whenever possible, SDL shall make an effort to inform Customer in
advance of implementation of such ECOs that do not affect the
Customer's end-product reliability, functionality or performance. SDL
will not implementation any ECOs that affect in any way the Customer's
end-product reliability, functionality or performance without prior
approval of Customer. SDL will make its technical personnel available
to assist Customer in fully understanding the nature of any and all
ECOs implemented to the related products. Upon Customer's request, SDL
shall supply Customer sample products for acceptance testing after
completion of ECOs that affect Customer's end-product reliability,
functionality or performance.

2.06 FUNCTIONALITY, MANUFACTURING & QUALITY. In the event SDL is unable to
meet Customer's needs on mutually agreed upon functionality, or
Customer's needs in manufacturing quantity and or reasonable quality
standards in light of volume and other considerations relevant to the
manufacture of the nonconforming shipments of the products listed in
Exhibit A. Customer and SDL will define a mutually agreeable time
period in which SDL will attempt to meet Customer's requirements. If
SDL is still unable to meet Customer's requirements at the end of this
negotiated period, Customer will then receive the manufacturing rights
for that specific nonconforming product, subject, however, to payment
by Customer of a licensing fee to SDL equal to [CONFIDENTIAL TREATMENT
REQUESTED]** per unit of the last purchase price paid by Customer for
such product.

2.07 CONTINUITY OF PRODUCT SUPPLY. SDL will make all reasonable efforts to
supply products listed in Exhibit A to Customer for a period of
[CONFIDENTIAL TREATMENT REQUESTED]** . If discontinuance of a critical
component from SDL's vendors deems it impossible for SDL to
manufacture a specific product, SDL will inform Customer within 24
hours of receipt of such information by SDL. In this event, SDL will
make all reasonable efforts, upon Customer's approval, to initiate
design of a replacement product that is similar to the product in
jeopardy, taking into account that the replacement product matches the
form, functionality and pricing of the product being replaced.
Customer will

<PAGE>

make all reasonable efforts to commit the necessary resources to
integrate the replacement product into Customer's product offerings.

2.08 [CONFIDENTIAL TREATMENT REQUESTED]** CUSTOMER. SDL hereby represents
that [CONFIDENTIAL TREATMENT REQUESTED]** for the entire term of this
agreement will [CONFIDENTIAL TREATMENT REQUESTED]** as those that will
be [CONFIDENTIAL TREATMENT REQUESTED]** to any of its other
[CONFIDENTIAL TREATMENT REQUESTED]**. Further, if at any time in the
future, SDL [CONFIDENTIAL TREATMENT REQUESTED]** another [CONFIDENTIAL
TREATMENT REQUESTED]** , SDL shall immediately make those
[CONFIDENTIAL TREATMENT REQUESTED]** to Customer.

2.09 NOTIFICATION OF CHANGE OF CONTROL. SDL will inform Customer within 24
hours of the consummation of a purchase of all or substantially all of
SDL's business by a Third Party. (for purposes hereof, all or
substantially all of SDL's business shall include, the sale of all or
a substantial portion of SDL's right, title and interest in and to the
products listed in Exhibit A or any products being supplied to
Customer at that time.)

2.10 QUALITY ASSURANCE. SDL will establish within 60 days of the effective
date of this Agreement documented quality assurance procedures that
provide the following:

a. Incoming inspection criteria for acceptance, rejection and
purging of material.

b. A product ship or product hold quality process.

c. Minimum Statistical techniques to measure and monitor process
yield.*

d. A signature authority ECO process.*

e. A revision control system for assembly Bill of Materials.*

f. A segregated rejected material location.*

g. The latest test procedures are available to operators.*

* Items c through g have been in place at SDL since November 1, 1997.

2.11 COMPLIANCE. On all products that are developed under Section 2.03
Commercially Available Products and Section 2.04 Customized Products,
SDL will complete the minimum FCC & CE mark Compliance tests necessary
and

<PAGE>

customary in providing such products to its present OEM Customers.
Wherever applicable, SDL's Engineering design methodologies
incorporate consideration for the above minimum FCC & CE mark
compliance tests in the design process. When requested by Customer,
SDL will present a schedule that provides Customer with the expected
compliance testing completion dates for the above stated compliance
tests for products under Section 2.03 and 2.04. If, due to Customer's
urgent need of completion of the above mentioned Compliance tests,
Customer requests that such compliance test be expedited, and if such
request for action is agreed to by SDL, then Customer will reimburse
SDL for all related expenses specific to such compliance testing, not
including the cost of utilizing SDL's technical personnel in the
conducting or completion of such compliance tests. In the event,
Customer requires Compliance testing for products developed under
Section 2.03 and 2.04 that is above and beyond the minimum FCC and CE
mark compliance testing as described above, Customer will be
responsible for all costs associated with such compliance tests
relating to these products. SDL will, however, provide the necessary
technical personnel in assisting Customer with the completion of such
compliance tests for SDL products incorporated into Customers
end-products (finished products).

2.12 FORCE MAJEURE. Except as to payment due and owing under this
Agreement, neither SDL nor Customer shall be liable to the other party
for failure or delay in performance of any obligation hereunder or for
any damage caused thereby if such delay is due to any cause beyond the
reasonable control of the party. Such cause may, include but is not
limited to natural disasters, war accidents, strikes or utility
shortage or curtailment, governmental regulations, or to any other
cause or causes beyond the control, or without the fault or
negligence, of either party.

2.13 END-USER WARRANTY AND LICENSE. SDL warrants that at the time of
shipment the Product shall be free from defect in material and
workmanship. SDL warrants that the Product will meet the standard
specifications of each product listed in Exhibit A hereto at the time
of shipment. This warranty excludes damage resulting from mishandling,
tampering, improper installation and misuse by the purchaser. SDL
warrants all Products for a period of 12 months from the date of
Invoice.

3. OBLIGATIONS OF CUSTOMER

3.01 TRADEMARKS.

(a) SDL grants to Customer a nonexclusive license to use SDL's trade
name and those of SDL's trademarks and service marks that pertain
to any of the Products, solely in Customer's advertising and
other promotion of the Products. SDL will assist the Customer in
private labeling options for the prouducts described in Exhibit
A. SDL will allow Customer to use its trademark for private
labeling purposes.

<PAGE>

(b) Whenever Customer uses in writing a registered trademark of SDL,
it shall place next to that trademark, at least the first time
that it appears in any given advertisement or publication, an
encircled "R" in superscript and a footnote stating that
trademark is a registered trademark of SDL. Whenever Customer
uses in writing a trademark of SDL for which SDL has applied for
registration, it shall place next to that trademark, at least the
first time that it appears in any given advertisement or
publication, the letters "TNF' in superscript and a footnote
stating that that trademark is a trademark of SDL.

(c) This Agreement shall not provide Customer any interest in SDL's
name or any of its trademarks or service marks except as
expressly provided in this Agreement. Customer's license to use
SDL's name and its trademarks and service marks shall cease upon
the termination of this Agreement.

3.02 END-USER WARRANTY AND LICENSE. Customer shall not make or grant,
orally or in writing, expressly or by implication, any other warranty
or license other than that which SDL has stated in the End-user
warranty and license.

3.03 COMPLIANCE WITH LAWS. Customer shall not, nor shall Customer permit
any other reseller of any of the Products supplied by SDL under this
Agreement, to export any of the Products, directly or indirectly, to
any foreign country in violation of any United States statute or
regulation in effect at the time of export. Customer shall be
responsible for obtaining all required agency, governmental or safety
certifications for the Products listed in Exhibit A.

4. PRICING AND PAYMENT TERMS

4.01 PRODUCT PRICING. Product Pricing to Customer shall be consistent with
the pricing reflected in Exhibit B of this Agreement. Pricing and
Terms for all other products to be supplied by SDL to Customer will be
negotiated separately. SDL will not be responsible for any
International Duties and Taxes relating to the shipment of SDL
products by Customer.

4.02 PURCHASE ORDER CHANGES AND CANCELLATIONS. All changes, rescheduling of
shipment, or cancellations of the Purchase Order must be made in
writing. Customer will be allowed to reschedule a specific Purchase
Order one-time without incurring any rescheduling penalty. Beyond
this, orders rescheduled within [CONFIDENTIAL TREATMENT REQUESTED]**
of shipping date are subject to a rescheduling fee of [CONFIDENTIAL
TREATMENT REQUESTED]** of the net Purchase Order amount. Orders
canceled within [CONFIDENTIAL TREATMENT REQUESTED]** of shipping date
are subject to a restocking charge of [CONFIDENTIAL TREATMENT
REQUESTED]** of the net Purchase Order amount of the items restocked.
Orders that are

<PAGE>

rescheduled or canceled outside of [CONFIDENTIAL TREATMENT
REQUESTED]** shall not be subject to any charges.

4.03 PRICE CHANGES. SDL may change the prices of any of the Products being
supplied under this Agreement at upon [CONFIDENTIAL TREATMENT
REQUESTED]** prior written notice to customer. In the event there is a
price increase for a specific product or products, SDL will honor all
outstanding orders on existing Purchase Orders from Customer at prices
prior to any and all such price increases.

4.04 RESALE PRICES. SDL shall have no control of the price or prices at
which Customer actually resells SDL's products, which Customer shall
determine without the involvement of SDL.

4.05 CUSTOMER'S FAILURE TO PAY. Customer's failure to pay after a 90 day
period following the due date of any undisputed Invoice shall
constitute a material breach of this Agreement. Before a material
breach can be declared, SDL shall notify Customer in writing of the
outstanding Invoices & amounts due within 45 days after the due date
of such Invoices & allow customer 30 days from date of such notice or
90 days after the due date to pay all such undisputed Invoices in
full. Interest shall accrue on all unpaid amounts at the rate of
[CONFIDENTIAL TREATMENT REQUESTED]** per month, compounded daily, or
the highest rate then permitted by law (whichever is the lower) from
the date on which payment was due through the date on which SDL
receives payment and SDL, at its option, may cancel or defer shipment
of any previously accepted or future orders until it has received
payment in full of all amounts due from Customer, whether or not
overdue.

4.06 CREDIT LIMIT. The maximum amount of credit that SDL is required to
extend to Customer is [CONFIDENTIAL TREATMENT REQUESTED]**. This
Credit Limit can be increased by SDL upon receipt of relevant
Financial Information from Customer allowing SDL to make such a
decision.

4.07 TERMS OF PAYMENT. All Products sold hereunder shall be invoiced in
full upon shipment. Unless otherwise specified. terms of payment are
net thirty (30) days on approved credit. Any undisputed amounts owing
after thirty (30) days shall accrue interest at the rate of
[CONFIDENTIAL TREATMENT REQUESTED]** per month from date of shipment.
SDL shall have the right to change credit terms of the Customer with
60 days prior notice, and to hold up shipment of Products if payment
for a previous order has not been received.

5. ORDERS, SHIPMENTS AND RETURNS

5.01 PURCHASE ORDERS. Purchase Orders shall specify shipment dates no later
than 12 months from the issuance thereof. Customer will provide SDL
with a [CONFIDENTIAL

<PAGE>

TREATMENT REQUESTED]** of products required for a given Quarter
(90-Day period), no later than Forty Five (45) days before the
beginning of the Quarter in which these purchases are to take place.

5.02 ACKNOWLEDGMENTS. Any terms or conditions specified in the Purchase
Order which differ from or conflict with the terms of this Agreement
in any material respect shall be void unless specifically accepted by
SDL.

5.03 SHIPMENT AND DELIVERY. Shipment shall be F.O.B. from SDL's location in
Easton. Massachusetts, by the method specified by the Customer. If any
conditions arise which prevent compliance with delivery schedules, SDL
will not be liable for any damage for delay in delivery. SDL will,
however, use its best efforts to notify Customer of delays,. SDL will
not make shipment ahead of schedule without Customer's approval. All
freight charges on shipments will be billed to Customer.

5.04 RETURNS. Customer may return Products to SDL only if Customer has
first requested and obtained from SDL a Return Merchandise
Authorization number, to which Customer shall refer in the shipping
documents accompanying the returned Products.

6. WARRANTIES, INDEMNITIES AND REMEDIES

6.01 WARRANTIES. SDL product Warranty is specified in Section 2.13 . SDL
shall repair or replace free of charge any Product that does not
comply with that warranty. Customer may replace any defective SDL
products that it has sold, and SDL shall replace in Customer's
inventory, free of charge, the same number of Products that Customer
has had to replace pursuant to the Warranty specified in Section 2.13.

6.02 INDEMNITY OF SDL. Customer shall Indemnify SDL and hold it harmless
from any and all actions, claims, damages. expenses (including
attorney's fees) and liabilities that arise from Customer's act,
omission or misrepresentation in the marketing, OEM, sale or promotion
of all Products supplied under this Agreement, including particularly
those that arise from Customer's breach of it's obligations.

6.03 INDEMNITY OF CUSTOMER. SDL shall indemnify and hold harmless Customer
from and against any damages, liabilities, costs and expenses
(including reasonable attorneys' fees and court costs) arising out
third party claims alleging that the products being provided in
Exhibit A or any other products supplied by SDL to Customer infringe
on any Patent, Trademark, Copyright or trade secret. Should any of the
products in Exhibit A or any product being supplied by SDL to Customer
become the subject of a claim of infringement, SDL shall (a) obtain
for SDL the right to continue using such specific products pursuant to
the terms and conditions of this Agreement, or (b) replace or modify
the products so that they become non-infringing but functionally
equivalent.

<PAGE>

6.04 LIMITATIONS OF WARRANTY AND LIABILITY. THE WARRANTY STATED IN THIS
SECTION IS A LIMITED WARRANTY AND IS THE ONLY WARRANTY, EXPRESS OR
IMPLIED, MADE BY SDL. ANY AND ALL OTHER WARRANTIES, INCLUDING
SPECIFICALLY WARRANTIES, OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED. NEITHER SDL NOR CUSTOMER
SHALL BE LIABLE OR OBLIGATED TO THE OTHER IN ANY MANNER FOR ANY MANNER
FOR ANY CONSEQUENTIAL OR INDIRECT DAMAGES EVEN IF IT HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES.

7. CONFIDENTIAL INFORMATION

7.01 SDL and Customer each acknowledges that, during the course of
performing its duties under this agreement, it may obtain information
relating to the business or products of the other that is confidential
and proprietary ("Confidential Information"). Each party shall use the
Confidential Information for the sole purpose of exercising its rights
and performing its duties under this Agreement and shall not disclose
any of the other party's Confidential Information to anyone other than
those of its employees, agents or consultants who (i) have a need to
know the Confidential Information in order to enable the receiving
party to exercise its rights and perform its duties under this
agreement; and (ii) who have signed an agreement with the receiving
party obligating them (a) not to disclose any of the Confidential
Information to anyone other than other employees or agents of the
receiving party who have signed similar agreements with the receiving
party and (b) not to use any of the Confidential Information for any
purpose other than to enable the receiving party to exercise its
rights and perform its duties under this Agreement. Before disclosing
any of the disclosing party's Confidential Information to any of its
employees or agents, the receiving party shall advise each employee or
agent that the disclosing party's Confidential Information is
confidential and subject to the restriction stated in this Agreement.

7.02 The receiving party and its employees and agents shall return to the
disclosing party all of its Confidential Information, including the
originals and copies of documents containing any of the disclosing
party's Confidential Information, upon the termination of this
Agreement. Nothing in this Agreement, nor the disclosure of any
Confidential Information by the disclosing party, shall be construed
to grant to the receiving party any rights of any kind in any of the
Confidential Information.

7.03 This Agreement shall not apple to information that (I) on the date of
this Agreement was already known to the receiving party or available
to the public; (II) after the date of this Agreement becomes known to
the receiving party or available to the public other than unauthorized
disclosure; or (III) was or is developed by the receiving party
Independently without any use of any of the disclosing party's
Confidential Information.

<PAGE>

7.04 The terms and conditions of this Agreement cannot be disclosed by
either party to a third party entity or individual without the express
written consent of the party to this agreement (either SDL or
Customer) that is not initiating this disclosure. The Customer's
trademark cannot be used in any shape or form by SDL without the prior
written consent of the Customer. This agreement shall not provide SDL
any interest in Customer's name or any of its trademarks or service
marks.

8. TERM AND TERMINATION. Subject to the other provisions of this Section 8,
this Agreement shall have a duration of 60 months. Either party may cancel
this Agreement for breaching the obligations of this contract by giving
written notice to the other party at least 60 days before effective date of
the cancellation. Upon termination of this Agreement, (a) each party shall
immediately return to the other all copies of Confidential Information of
the other then in its possession, custody or control and shall cease to use
any of the other party's Confidential Information for any purpose; and (b)
the license granted by this Agreement shall be terminated Immediately.
Customer shall cease to market, distribute, sell or promote any of the
Products, to use SDL's name or any of its trademarks or service marks or
otherwise hold itself out as a customer of SDL's Products.

RIGHTS UPON TERMINATION. Termination of any Purchase Order of this
Agreement shall not affect SDL's right to be paid for undisputed invoices
for Products already shipped. The termination of this Agreement shall not
affect any of the SDL's warranties, indemnification's or obligations
relating to returns, credits or any other matters set forth in this
Agreement that are to survive this termination in order to carry out their
intended purpose all of which shall survive this agreement. Upon
termination of this Agreement, Customer shall discontinue holding itself
out as a Customer of SDL's products. The expiration of the term of this
Agreement shall not affect the obligations of either party to the other
party pursuant to any Purchase Order previously forwarded to SDL.

9. GENERAL

9.01 ASSIGNMENT; BINDING EFFECT. No party may assign any or all of its
rights or delegate any or all of its duties under this Agreement
without the written consent of the other party. A change in control of
the ownership, or a transfer of all or substantially all of the
assets, of SDL or the Customer shall not be deemed an assignment of
this Agreement and shall not require the other party's consent.

9.02 MISCELLANEOUS. The laws of the Commonwealth of Massachusetts,
excluding the conflicts-of-law principles thereof shall govern the
validity and construction of this Agreement. This Agreement states the
entire agreement and understanding of the parties on the subject
matter of the Agreement, and supersedes all previous agreements,
arrangements, communications and understanding relating to that
subject matter. This Agreement may be amended, modified, superseded or
canceled, and any of the terms thereof may be waived, only by a
written document signed by each party to this Agreement or, in case of
waiver, by the party or parties waiving compliance. No person not a
party to this Agreement (including

<PAGE>

any employee of any party to this Agreement) shall have or acquire any
rights by reason of this Agreement, nor shall any party by this
Agreement have any obligations or liabilities to such other person by
reason of this Agreement. Nothing in this Agreement shall be deemed to
constitute any party a partner, joint venture, employer, employees
master, servant, principal or agent of any other party or any other
person.

<PAGE>

EXHIBIT A: PRODUCTS UNDER OEM AGREEMENT

SDL PRODUCTS PRODUCT DESC. SDL PART NUMBER

[CONFIDENTIAL TREATMENT REQUESTED]**

<PAGE>

EXHIBIT B: PRODUCT PRICING

QUANTITY (UNITS)

SDL PRODUCTS PRODUCT DESC. SDL PART NUMBER 100-299 300+

[CONFIDENTIAL TREATMENT REQUESTED]**

<PAGE>

EXHIBIT C: DELIVERY SCHEDULES

BASED ON PRODUCTS REQUIRED PER SHIPMENT
---------------------------------------

[CONFIDENTIAL TREATMENT REQUESTED]**
Quantity(units): 1-100 101-250 251-500 501+
Delivery Schedule (in working days): 30 35 40 50

[CONFIDENTIAL TREATMENT REQUESTED]**
Quantity(units): 1-100 101-250 251-500 501+
Delivery Schedule (in working days). 30 35 40 50

[CONFIDENTIAL TREATMENT REQUESTED]**
Quantity(units): 1-100 101-250 251-500 501+
Delivery Schedule (in working days): 30 40 50 50

[CONFIDENTIAL TREATMENT REQUESTED]**
Quantity(units): 1-100 101-250 251-500 501+
Delivery Schedule (in working days): 30 35 40 50