Purchase/Service Agreement - Avaya Inc. and NetScreen Technologies Inc.
Purchase/Service Agreement
November 21, 2000
Peter Kent
CFO
Netscreen Technologies Inc.
350 Oakmead Parkway
Sunnyvale, CA 94085
Peter,
After review by our credit department, Avaya Financial Services is pleased to
submit this proposal based on our understanding of your financial requirements.
Any changes to these terms, conditions, and assumptions may alter the proposed
financing.
Financial Options True Lease
Lessor Avaya Financial Services
Lessee Netscreen Technologies Inc.
Equipment Description Definity Solution
Equipment Cost $475,899.37 plus applicable taxes.
TRUE LEASE OPTIONS
------------------
Thirty-six month FMV Lease*
---------------------------
* This is based on six (6) advance payments
Payments Rate factor Monthly payment
-------- ----------- ---------------
1-36 .02949 $14,036.12
Proposal Assumptions
Soft Costs Up to 25% of the total amount to be
financed may be comprised of soft costs
(i.e., installation, shipping, training,
wire and software). Once the configuration
is finalized, if the soft costs exceed 25%,
the rate(s) quoted will be increased.
Anticipated Acceptance Data 12/21/00
Net Lease Maintenance, insurance, and all taxes
(domestic and foreign as applicable) will be
the responsibility of the Lessee.
Additions Financing of coterminous additions is
available in minimum amounts of $1,000.00.
Minimum term for additions is 12 months.
<PAGE>
Netscreen Technologies Inc. Page 2
November 21, 2000
Lease Termination True Lease Options Upon expiration of the
initial term, at Lessee's option, Lessee,
may: (1) purchase the equipment at the then
existing Fair Market Value; (2) renew the
lease at the then existing Fari Market
Rental Value; or (3) return the equipment to
the Lessor.
Proposal Expiration This proposal expires if not accepted within
30 days after the date hereof. Rates quoted
shall be firm if the lease is commenced
within 90 days after written acceptance of
this proposal.
Pricing Index If the lease is commenced more than 90 days
after written acceptance of this proposal,
and the initial term of the lease is: 36
Months - and if the yield of the 2 year
Treasury Note trading closest to par as
stated in The Wall Street Journal on the
commencement date is different by an amount
greater than 25 basis points from today's
(November 21, 2000) yield of 5.86%, or the
implicit rate will be adjusted upward or
downward in the amount equal to the
difference between the two yields, and the
amount of the periodic payments will be
adjusted accordingly. However, no adjustment
will be made if the adjustment to each
payment is $5.00 or less.
Basis of Proposal This proposal should not be construed as a
commitment by Avaya Financial Services. Such
a commitment requires the execution of a
mutually acceptable lease agreement and
other related documents. The lease agreement
and other related documents, not this
proposal, will set forth the agreement
between the parties.
If the general terms and conditions of this proposal are acceptable, please sign
and return the enclosed copy designating the financial option and term desired.
Sincerely,
Robert R. Crumpley
Area Manager
Avaya Financial Services
<PAGE>
Purchase/Service Agreement
<TABLE>
<CAPTION>
<S> <C> <C>
-------------------
ONE-TIME INVOICE
AVAYA INC.
2300 CAMINO RAMON, STE 129
SAN RAMON, CA 94583
NETSCREEN TECHNOLOGIES, INC.
350 OAKMEAD PKWY
SUNNYVALE, CA 94085
ACCOUNT NUMBER: 020-558-4162
INVOICE NUMBER: 7721546970
EQUIPMENT AT: INVOICE DATE: 11/20/2000
NETSCREEN TECHNOLOGIES, INC. PROJECT CODE:
350 OAKMEAD PKWY BILLING INQUIRIES: (800) 331-3316
SUNNYVALE, CA 94085 TO PLACE AN ORDER: (800) 331-3316
-----------------------------------------------------------------------------------------------------------------------
NEW CHARGES LEASE AND RENTAL: $0.00
MONTHLY MAINTENANCE: $0.00
PURCHASES: $0.00
PROGRESS PAYMENTS: $230,021.76
TOTAL NEW CHARGES: $230,021.76
FEDERAL EXCISE TAX: $0.00
STATE AND LOCAL TAXES: $0.00
TOTAL TAXES ON NEW CHARGES: $0.00
TOTAL NEW CHARGES AND TAXES: $230,021.76
-----------------------------------------------------------------------------------------------------------------------
BALANCE BROUGHT FORWARD
BALANCE AS OF LAST MONTH: $0.00
ADDITIONAL BILLING: $0.00
PAYMENTS RECEIVED: $0.00
NET ADJUSTMENTS: $0.00
BALANCE BROUGHT FORWARD: $0.00
-----------------------------------------------------------------------------------------------------------------------
REMITTANCE AMOUNT
TOTAL PAYABLE 50% AT CONTRACT SIGNING $230,021.76
-----------------------------------------------------------------------------------------------------------------------
To insure proper credit, please detach this portion and return with remittance.
-----------------------------------------------------------------------------------------------------------------------
REMITTANCE DOCUMENT
NETSCREEN TECHNOLOGIES, INC.
350 OAKMEAD PKWY
SUNNYVALE, CA 94085
BRANCH OFFICE:
BILLING INQ: (800) 331-3316
EQUIPMENT AT: ACCOUNT NUMBER: 020-558-4162
NETSCREEN TECHNOLOGIES, INC. INVOICE NUMBER: 7721546970
350 OAKMEAD PKWY INVOICE DATE: 11/20/2000
SUNNYVALE, CA 94085 AMOUNT DUE: $230,021.76
----------------------
AMOUNT ENCLOSED:
----------------------
</TABLE>
<PAGE>
Purchase/Service Agreement
<TABLE>
<CAPTION>
CONTRACT 00205584162 ORDER 21546970 DATE 11/20/2000
CPS PROJECT CODE: 00SF1889
NETSCREEN TECHNOLOGIES INC. AVAYA INC. AVAYA CONTRACT INFORMATION
350 OAKMEAD PKWY 2300 CAMINO RAMON MICHELLE MCKENNA
SUNNYVALE CA 94085 SAN RAMON CA 94583 415-834-2920
TRANSACTION TYPE: ___ PURCHASE ___ PURCHASE-IN-PLACE ___ POST WARRANTY SERVICE ___ LICENSE FEE PAGE 1 OF 5
PRICE
PRODUCT/SERVICE ELEMENT WARRANTY POST WARRANTY LIC. PURCHASE PRICE/ INSTALLATION/ TOTAL MONTHLY
DESCRIPTION CODE TERM (MOS) CVG* TERM (YRS) CVG* FEE QTY LICENSE FEE ONE-TIME CHG SRV CHARGE
--------------- --------- ---------- ---- ---------- ---- --- --- -------------- ------------ -------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
CC RS ELITE 0-50 1227-842 012 1 4 1 1 23072.00 1000.00 46.90
DEP. PC CNSL 10ER LIC 3900-201 012 3 1 3 1 1484.10 225.00 15.00
TRNSTLX CARR ASMBLY 3204-CR3 012 1 5 1 1 143.50 25.00 6.44
TRANS DCP PKT PHONE 3229-W1D 012 1 5 1 2 1586.20 200.00 15.64
DEF RB LIC DSA R1.5 1336-DAS 003 1 1 1 X 1 0.00 100.00 25.00
TELSET 6408D+ ENG GR 3304-8UG 012 1 5 1 224 52606.40 10080.00 0.00
TELSET 6416D+ ENG G 3306-MUG 012 1 5 1 36 11410.56 1620.00 0.00
R6CSI SYS SFW [GREATER
THAN] 500 PT 1272-CS3 012 1 5 1 X 2 8034.00 0.00 0.00
PRT SENS SFW 101-500 1272-CS8 012 1 5 1 X 4 9888.00 0.00 0.00
----------- --------- ------------
TOTAL 108224.76 13250.00 108.08
SUBTOTAL FROM ATTACHED (4) PAGE(S) 258293.30 77512.08 3026.85
ESTIMATED SHIPPING CHARGES 2763.39
----------- --------- ------------
GRAND TOTAL 366518.06 93525.47 3134.83
ALL PRICES AND RATES ABOVE ARE EXCLUSIVE OF SALES/USE TAXES
-----------------------------------------------------------
*WARRANTY/POST WARRANTY COVERAGE: PROGRESS PAYMENT SCHEDULE*
---------------------------------------------
BUSINESS DAY (1) 8:00AM-8:00PM; MON-FRI. (6) $ 230021.76 CONTRACT SIGNING
AROUND-THE-CLOCK (2) 9:00AM-9:00PM; MON-FRI. (7) 0.00 / /
MAINTENANCE EXPIRES (3) 8:00AM-MIDNIGHT; MON-SAT. (8) 0.00 / /
CUSTOMER INVENTORY MGMT (4) CUSTOMER ON-SITE EXCHANGE (9) 0.00 / /
7:00AM-7:00 PM; MON-FRI. (5) AVAYA ON-SITE EXCHANGE (10) 0.00 / /
------------------------------- --------------------------------
BALANCE AS INVOICED UPON INSTALLATION
COMPLETION
CUSTOMER CONTRACT RETURN DATE: 11/22/00
CHANGE CONTROL DATE (CCD): T/B/D
DELIVERY DATE: T/B/D
IN SERVICE DATE: T/B/D
SERVICE COMMENCEMENT DATE: T/B/D
EQUIPMENT LOCATION AVAYA INC.
330 OAKMEAD PKWY AUTHORIZED SIGNATURE
SUNNYVALE CA 94085
NETSCREEN TECHNOLOGIES INC. TYPED NAME MARCY PAUL
AUTHORIZED CUSTOMER SIGNATURE TITLE SALES MANAGER
ADDRESS
2300 CAMINO RAMON
TYPED NAME CITY STATE ZIP CODE
TITLE SAN RAMON CA 94583
DATE DATE
</TABLE>
--------------------------------------------------------------------------------
YOUR SIGNATURE ACKNOWLEDGES THAT YOU HAVE READ AND UNDERSTAND THE TERMS AND
CONDITIONS ATTACHED TO THIS AGREEMENT AND THESE TERMS AND CONDITIONS APPLY TO
THIS ORDER AND ANY SUBSEQUENT ORDERS ACCEPTED BY AVAYA. YOUR SIGNATURE
ACKNOWLEDGES AUTHORIZATION FOR AVAYA TO REQUEST CREDIT INFORMATION FROM ANY
CREDIT REPORTING AGENCY OR SOURCE.
--------------------------------------------------------------------------------
REMARKS SEE (4) ADDITIONAL PAGE(S)
<PAGE>
Purchase/Service Agreement
<TABLE>
<CAPTION>
CONTRACT 00205584162 ORDER 21546970 DATE 11/20/2000
CPS PROJECT CODE: 00SF1889
NETSCREEN TECHNOLOGIES INC. AVAYA INC. AVAYA CONTRACT INFORMATION
350 OAKMEAD PKWY 2300 CAMINO RAMON MICHELLE MCKENNA
SUNNYVALE CA 94085 SAN RAMON CA 94583 415-834-2920
TRANSACTION TYPE: ___ PURCHASE ___ PURCHASE-IN-PLACE ___ POST WARRANTY SERVICE ___ LICENSE FEE PAGE 2 OF 5
PRICE
PRODUCT/SERVICE ELEMENT WARRANTY POST WARRANTY LIC. PURCHASE PRICE/ INSTALLATION/ TOTAL MONTHLY
DESCRIPTION CODE TERM (MOS) CVG* TERM (YRS) CVG* FEE QTY LICENSE FEE ONE-TIME CHG SRV CHARGE
--------------- --------- ---------- ---- ---------- ---- --- --- -------------- ------------ -------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
ISDN-PRI SFTW 1272-PR2 012 1 5 1 X 6 8352.00 220.50 0.00
ISDN PRI/100PT [LESS
THAN] 500PT 1272-PRI 012 1 5 1 X 1 1245.00 404.25 0.00
RSI BASIC SFTW RTG 1272-SI8 012 1 X 1 9000.00 630.00 0.00
ECS TELCONTG RTU 1272-TM3 012 1 5 1 X 1 1200.00 210.00 0.00
DEFIP SOFTPEN CD-ROM 1888-001 001 1 1 30.00 0.00 0.00
DEF 468IESCC PPN MOD 6300-146 012 1 5 1 1 8700.00 3360.00 0.00
DEF PPM SW & TERM 6300-STM 012 1 5 1 456 0.00 0.00 1299.60
CO TRUNK INTERFACE 63115 012 1 5 1 1 1205.40 89.25 0.00
AUX TRX INTF CP 63118 012 1 5 1 1 809.40 89.25 0.00
ANNOUNCEMENT BOARD 63141 012 1 5 1 1 3893.40 162.75 0.00
UNIVERSAL COUPLER 63150 012 1 5 1 1 188.40 110.25 0.00
120A1 CSU MODULE 63185 012 1 5 1 3 2966.40 299.25 0.00
SWRM SNEAK FUSE 63210 012 1 5 1 1 231.60 138.60 0.00
SWRM AUXILIARY FIELD 63213 012 1 5 1 1 216.60 42.00 0.00
SWRM 1PR JUMPER WIRE 63214 012 1 5 1 1 12.60 0.00 0.00
SWRM 2PR JUMPER WIRE 63215 012 1 5 1 1 27.60 0.00 0.00
C-LAN W/SYNCH LINKS 63232 012 1 5 1 1 750.00 160.00 0.00
CABLE BLACK MANAGER 63302 012 1 5 1 1 123.60 162.75 0.00
DS1 INTFC FOR PRI 63316 012 1 5 1 2 5926.80 262.50 0.00
DS1 INTFC FOR PRI 63316M 012 1 5 1 1 0.00 0.00 0.00
CALL CLASSIFIER PACK 63532 012 1 5 1 1 1149.60 110.25 0.00
DEF R6 SCC PORT CAB 63751 012 1 5 1 1 3090.00 1286.25 0.00
110 XCONN W/10 CBL 63858 012 1 5 1 3 1049.40 315.00 0.00
TM2224 24PT 2WR DCP 63869 012 1 5 1 11 39732.00 1443.75 0.00
TM2224 24PT 2WR DCP 63869M 012 1 5 1 2 0.00 0.00 0.00
4 MEGABIT FLASH CD 63876 012 1 5 1 1 494.40 0.00 0.00
----------- --------- ------------
SUBTOTAL 90394.20 9496.60 1299.60
</TABLE>
<PAGE>
Purchase/Service Agreement
<TABLE>
<CAPTION>
CONTRACT 00205584162 ORDER 21546970 DATE 11/20/2000
CPS PROJECT CODE: 00SF1889
NETSCREEN TECHNOLOGIES INC. AVAYA INC. AVAYA CONTRACT INFORMATION
350 OAKMEAD PKWY 2300 CAMINO RAMON MICHELLE MCKENNA
SUNNYVALE CA 94085 SAN RAMON CA 94583 415-834-2920
TRANSACTION TYPE: ___ PURCHASE ___ PURCHASE-IN-PLACE ___ POST WARRANTY SERVICE ___ LICENSE FEE PAGE 3 OF 5
PRICE
PRODUCT/SERVICE ELEMENT WARRANTY POST WARRANTY LIC. PURCHASE PRICE/ INSTALLATION/ TOTAL MONTHLY
DESCRIPTION CODE TERM (MOS) CVG* TERM (YRS) CVG* FEE QTY LICENSE FEE ONE-TIME CHG SRV CHARGE
--------------- --------- ---------- ---- ---------- ---- --- --- -------------- ------------ -------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
81 LOOPBACK JACK 63878 012 1 5 1 3 223.20 31.50 0.00
MALOG LINE 24 PORT 63890 012 1 5 1 2 7174.80 262.50 0.00
MERGENCY TRNSFR PNL 65262 012 1 1 1 2 957.60 672.00 0.00
RI IBDN LINE 65512 012 1 5 1 1 3213.60 99.25 0.00
ACILITY TEST BOARD 65524 012 1 5 1 1 1020.00 162.75 0.00
ALLMASTER V TERM 3179-500 012 1 5 1 39 16243.50 2340.00 89.70
B ADMIN DOC 63886 000 1 2 0.00 0.00 0.00
B MAINT & INSTL DOC 63887 000 1 1 0.00 0.00 0.00
R RTO ACT W/100 1253-DAT 012 1 1 1 X 1 0.00 0.00 0.00
PARALLEL PRINTER 6951-417 012 1 1 1 1 429.60 50.00 0.00
306 PAR INTERFACE 69641 012 1 1 30.00 10.00 0.00
MOP VS ANAL BDL 6P 7024-802 012 1 4 1 1 30770.60 2637.48 404.80
ITSTR PANEL ASSEMBLY 70336 012 1 4 1 1 180.60 15.00 2.76
ITHER PCI LAN BD 70561 012 1 4 1 1 525.00 150.00 23.00
CVCS T/R CARD 71802 012 1 4 1 2 4620.00 396.00 60.72
I8 ANALOG RTO & PT 1322-161 012 1 2 3290.00 282.00 0.00
IRACLE SRV ENTP EDIT 1322-171 012 3 4 3 1 2240.00 168.00 32.20
COVERSANT VS ADM CD 1477-007 001 3 1 1025.00 0.00 0.00
IRACLE DOCS PAPER 70998 000 3 1 360.50 0.00 0.00
JUST DOC SET-PAPER 71247 012 1 1 360.50 0.00 0.00
CONVERSANT X600-CON 012 1 5 1 2 0.00 0.00 0.00
CA VLCTY M4D 600X18 7070-d42 012 1 5 1 1 57000.00 8728.00 496.00
CNTFAX ADMIN/TEST 0360-FAX 000 1 1 0.00 400.00 0.00
IPSO ONSITE ASSIST 0375-WMI 000 1 1 0.00 12500.00 0.00
1000VAUPS (120V) W/O 2403-516 012 1 5 1 1 3966.00 550.00 32.20
ALARM CONN DB25AMPH 24432 000 1 1 15.00 0.00 0.00
----------- --------- ------------
TOTAL 133645.50 29444.48 1150.18
</TABLE>
<PAGE>
Purchase/Service Agreement
<TABLE>
<CAPTION>
CONTRACT 00205584162 ORDER 21546970 DATE 11/20/2000
CPS PROJECT CODE: 00SF1889
NETSCREEN TECHNOLOGIES INC. AVAYA INC. AVAYA CONTRACT INFORMATION
350 OAKMEAD PKWY 2300 CAMINO RAMON MICHELLE MCKENNA
SUNNYVALE CA 94085 SAN RAMON CA 94583 415-834-2920
TRANSACTION TYPE: ___ PURCHASE ___ PURCHASE-IN-PLACE ___ POST WARRANTY SERVICE ___ LICENSE FEE PAGE 4 OF 5
PRICE
PRODUCT/SERVICE ELEMENT WARRANTY POST WARRANTY LIC. PURCHASE PRICE/ INSTALLATION/ TOTAL MONTHLY
DESCRIPTION CODE TERM (MOS) CVG* TERM (YRS) CVG* FEE QTY LICENSE FEE ONE-TIME CHG SRV CHARGE
--------------- --------- ---------- ---- ---------- ---- --- --- -------------- ------------ -------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
120V BATT CAB W/CBGR 24453 012 1 1 1 1 4850.00 80.00 40.00
G1 SHIP LOOSE X600-SHL 012 1 1 0.00 0.00 0.00
CVCMS 25/50/75 KAS 1208-SES 012 3 X 1 4326.00 200.00 0.00
CMS U5 LITE 50 A RTU 1208-950 012 1 1 1 X 1 8610.00 2145.00 0.00
CVOMS U5 HDW 1208-9HK 012 1 1 1 X 1 7000.00 0.00 0.00
CV LITE VB U5 MEDIA 12112 012 1 1 1 1 1000.00 0.00 495.00
INTFACE SCSI NT CARD 12168 012 1 1 1 1 927.00 350.00 40.00
NO MATERIAL X600-AAP 000 1 1 0.00 0.00 0.00
CVCMS VB DOC HC & CD 1208-9CN 000 1 X 1 522.90 0.00 0.00
NON CVA DSGN/INTGRTS 0424-046 000 1 18540 0.00 18540.00 0.00
REM ACT NWRK PRTR 0424-NWP 000 1 1 0.00 2600.00 0.00
G3 MAINT STA & TRKS 1264-MS8 012 1 X 1 0.00 60.00 0.00
SUPRA MONO VT 3122-040 012 3 39 3978.00 0.00 0.00
PROP SVC-VR-ADL AIS 0390-3EX 000 1 9000 0.00 9000.00 0.00
PROVISION ASSOC CON 0700-CON 000 1 5000 0.00 5000.00 0.00
PWR UPS 2000VA 2403-760 012 1 1 1785.00 370.00 0.00
CP-TN799C 63399 012 1 1 750.00 160.00 0.00
CALLMASTER VI 8315-C10 012 1 5 1 1 504.70 66.00 2.07
----------- --------- ------------
SUBTOTAL 34253.60 38571.00 577.07
</TABLE>
<PAGE>
Purchase/Service Agreement - Reports
<TABLE>
<CAPTION>
<S> <C> <C> <C>
CONTRACT 00205584162 ORDER 21546970 DATE 11/20/2000
CPS PROJECT CODE: 00SF1889
NETSCREEN TECHNOLOGIES INC. AVAYA INC. AVAYA CONTRACT INFORMATION
350 OAKMEAD PKWY 2300 CAMINO RAMON MICHELLE MCKENNA
SUNNYVALE CA 94085 SAN RAMON CA 94583 415-834-2920
PAGE 5 OF 5
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</TABLE>
PURSUANT TO NETSCREEN'S REQUEST, THIS PROJECT WILL BE INSTALLED IN TWO PHASES.
NETSCREEN WILL BE BILLED FOR PHASE 1 AFTER INSTALLATION OF PHASE 1 IS COMPLETE,
ON TERMS NET 30 DAYS. LIKEWISE, NETSCREEN WILL BE BILLED FOR PHASE 2 AFTER
INSTALLATION OF PHASE 2 IS COMPLETE. THE WARRANTY PERIOD BEGINS ON THE
IN-SERVICE DATE OF EACH PHASE. THE PRICING PROPOSED ON CTI INTEGRATION, INTERNET
CALL CENTER, AND THE REMOTE MAX WILL BE EXTENDED FOR 180 DAYS FROM TODAY'S DATE
BUT CANNOT BE GUARANTEED, IF INSTALLATION IS NOT COMPLETE BY THAT DATE.
**POST WARRANTY SERVICE COMMENCES UPON EXPIRATION OF WARRANTY.
THE CHANGE CONTROL, DELIVERY AND IN-SERVICE DATES WILL BE NEGOTIATED WITHIN A
MUTUALLY AGREEABLE TIMEFRAME BASED ON YOUR REQUIREMENTS AND THE AVAILABILITY OF
AVAYA INC.'S RESOURCES.
*IF YOU ELECT TO FINANCE THIS TRANSACTION THROUGH AN AVAYA, INC. APPROVED THIRD
PARTY LESSOR, THE PROGRESS PAYMENT SHOWN ON THIS DOCUMENT WILL BE WAIVED.
YOU WILL BE RESPONSIBLE FOR PROVIDING A SEPARATE DEDICATED ACCESS LINE DURING
AVAYA INC.'S WARRANTY AND SERVICE AGREEMENT COVERAGE PERIODS FOR REMOTE SUPPORT
OF THE DEFINITY SYSTEM BEING PURCHASED UNDER THIS AGREEMENT.
SEE ATTACHMENT `A' ADDENDUM FOR SOFTWARE PERMISSIONS TO MAINTAIN STATIONS AND
TRUNKS.
<PAGE>
AMENDMENT TO
PURCHASE/SERVICE AGREEMENT
BETWEEN
AVAYA INC.
AND
NETSCREEN TECHNOLOGIES, INC.
Avaya Inc., and you, the Customer, hereby agree to amend and modify the
Purchase/Service Agreement between the parties dated November 21, 2000 as
follows:
Section 15, Subsection A(3) (EXCLUSIVE REMEDIES AND LIMITATIONS OF LIABILITY) is
hereby deleted in its entirety and replaced with the following:
15.A(3) For delays in the in-service date, Avaya agrees to pay you, as fixed and
liquidated damages and in lieu of all other damages, the sum of $500.00 for each
calendar day of delay commencing on the 24th day of January, 2001 and continuing
for a maximum of up to fifteen (15) days thereafter, provided, however, that
Avaya shall not be liable for such damages:
(a) unless you have either paid to Avaya the required advance
payment of $230,021.76, or you have received an unconditional
approval of financing of this equipment purchase by Avaya
Financial Services, on or before November 22, 2000;
(b) unless Avaya is granted access to the said premises on or
before December 18, 2000;
(c) if there are any changes to the configuration of the equipment
order herein;
(d) if the delay is caused by matters beyond the control of Avaya,
including those specified in Section 19 of this Agreement
(force majeure); or
(e) if the delay was not caused solely and directly by Avaya's
failure to perform.
<PAGE>
Netscreen Technologies Page 4
November 21, 2000
The general terms and conditions of this proposal are accepted and agreed to
this 21st day of November, 2000.
Thirty-six month True Lease with six advance payments
Signature: /s/ Peter Kent
--------------------------------------------------
Name: Peter Kent
-------------------------------------------------------
Title: CFO
------------------------------------------------------
<PAGE>
TERMS AND CONDITIONS
Avaya Inc. ("Avaya") and you, the Customer, agree that the following terms and
conditions will govern your order for equipment and software ("Products") and
installation, warranty and post-warranty services and related services
("Services") listed on the front of this Agreement. This Agreement may contain
additional pages and covers Products and Services for use only in the United
States.
1. CONTRACT PERIOD - This Agreement shall be effective from the date of Avaya's
written acceptance until terminated as set forth in Section 17 of this
Agreement. If you order post-warranty service it will commence on the expiration
of the applicable Avaya warranty period and will be provided for an initial term
as specified on the front of this Agreement. Post-warranty service shall be
automatically renewed for successive one (1) year-terms at the charges and under
the terms and conditions applicable to Avaya'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. Avaya can also notify you ninety (90)
days in advance of the time of renewal that Service for specific Products
covered under this Agreement will not be renewed.
2. ORDERS - A. Avaya's acceptance of this Agreement is subject to credit
approval and to the remittance of an advance payment, progress payments, or
other form of security which may be specified by Avaya. Terms and conditions on
any non-Avaya form shall not apply. B. The Customer Contract Return Date is the
date Avaya must receive from you an executed copy of this Agreement and any
required payment(s). If this date is not met, Avaya may reschedule the Delivery
Date and/or In-Service Date and Avaya may change the prices specified on the
front of this Agreement. C. When applicable, Avaya and you will agree upon all
dates and activities required to meet the scheduled Delivery Date for
Customer-installed Products, or the scheduled In-Service Date for
Avaya-installed Products, and complete the Project Milestone and
Responsibilities document, which document is incorporated by reference into this
Agreement. The installation responsibilities of each party with respect to this
Agreement are described in the Avaya Service Offerings and Support Plans
("SOSP") document, which is incorporated by reference into this Agreement.
D. The terms and conditions of this Agreement, at the time the order is accepted
by Avaya, will govern orders for modifications or additions to the Products
acquired hereunder placed after the Delivery Date or In-Service Date (as
applicable).
3. CHANGE CONTROL DATE - The Change Control Date ("CCD") is the last date Avaya
will accept changes to the Products ordered for delivery on the Delivery Date
for Customer-installed Products or for installation on the In-Service Date for
Avaya-installed Products. The CCD is the date Avaya accepts this Agreement,
unless a different date is shown on the front of this Agreement or on the
Project Milestones and Responsibilities document, when applicable. Changes to
the original order received by Avaya prior to the CCD will be reflected on a
Change Order Form (which is included as Exhibit C in the SOSP) and must be
approved in writing by authorized representatives of both parties. Changes
received and accepted by Avaya after the CCD will be treated as separate orders
and will be delivered after the Delivery Date for Customer-installed Products or
will be installed after the In-Service Date for Avaya-installed Products. The
CCD for subsequently placed orders for modifications or additions will be the
date Avaya accepts that order. All orders for modifications or additions to the
Products acquired hereunder will be governed by the terms and conditions of this
Agreement.
4. CUSTOMER-INSTALLED PRODUCTS - A. The ("Delivery Date") is the date Avaya
delivers the Products to you. B. Avaya will make reasonable accommodations if
you request a delay in the original Delivery Date if you give Avaya written
notice prior to the CCD. If you give notice of a request for a delay in the
original Delivery Date after the CCD, request more than one delay in the
Delivery Date prior to the CCD, or
<PAGE>
cause a delay in the Delivery Date as a result of your failure to meet your
obligations under this Agreement, Avaya may cancel the order and bill you for
cancellation charges as set forth in Section 17. C. Shipping charges may be
adjusted if you change the location for delivery.
5. AVAYA-INSTALLED PRODUCTS - A. For Avaya-installed Products, the ("In-Service
Date") is the date Avaya notifies you that the Products are installed in good
working order in accordance with Avaya's standard specifications or
documentation accompanying the Product (collectively the "Documentation").
B. Avaya will make reasonable accommodations if you request a delay in the
original In-Service Date, if you give Avaya written notice prior to the CCD. If
you give notice of a request for delay in the original In-Service Date after the
CCD, request more than one delay in the In-Service Date prior to the CCD, or
cause a delay in the In-Service Date as a result of your failure to meet your
obligations under this Agreement (e.g., Section 5.C.), Avaya may: (i) ship the
Products and commence billing, in which case installation will be rescheduled at
a mutually agreeable time and additional installation charges may apply; or (ii)
cancel the order and bill you for cancellation charges as set forth in Section
17. C. You are responsible for notifying Avaya of the presence of any hazardous
material (e.g., asbestos) on your premises prior to the commencement of any
Services. You are also responsible for removal of any such hazardous material or
correction of any hazardous condition that affects Avaya's performance of
Services. Services will be delayed until you remove or correct the hazardous
condition; Avaya shall not be liable to you as a result of such delays. D. For
Avaya-installed Products, Avaya may, at its option, perform a site survey to
identify your specific installation requirements. If the site survey can not be
performed prior to the execution of this Agreement, it will be scheduled and
conducted as soon as your facilities are available. Upon completion of the site
survey, Avaya will identify and communicate to you any additional charges that
may apply. If the additional charges identified during the site survey exceed
five percent (5%) of the total purchase price listed on the front of this
Agreement you may cancel the Agreement without incurring cancellation charges if
you notify Avaya in writing within ten (10) days of your receipt of the notice
from Avaya of the additional charges. E. Installation and shipping charges may
be adjusted if you change the installation location.
6. WARRANTY - A. Avaya warrants that during the warranty period the Products
will operate in accordance with the Documentation. If a Product does not operate
in accordance with the Documentation during the warranty period, you must
promptly notify Avaya. Avaya, at its option, will either repair or replace that
Product without charge. You have the right as your exclusive remedy, to return
that Product for a refund of the purchase price or license fee if Avaya is
unable to repair or replace the Product. B. The warranty period shall be
specified on the front of this Agreement and shall begin on the Delivery Date
for Customer-installed Products or on the In-Service Date for Avaya-installed
Products. Avaya's standard warranty period will apply if none is specified.
7. WARRANTY/POST-WARRANTY SERVICE EXCLUSIONS - A. EXCEPT AS STATED IN SECTION 6,
AVAYA, ITS SUBSIDIARIES AND THEIR AFFILIATES, SUBCONTRACTORS AND SUPPLIERS, MAKE
NO WARRANTIES, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIM ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. B. The warranty provided in
Section 6 and post-warranty service do not cover repair for damages,
malfunctions, or performance characteristics caused by: (1) use of non-Avaya
furnished equipment, software, or facilities with the Products; (2) your failure
to follow Avaya's installation, operation or maintenance instructions, including
your failure to permit Avaya timely remote access to your Products; (3) failure
or malfunction of equipment, software, or facilities not serviced by Avaya; (4)
actions of non-Avaya personnel; or (5) force majeure conditions as stated in
Section 19. Avaya does not warrant uninterrupted or error free operation of the
Products. In addition, Avaya is not obligated to provide warranty or
post-warranty service if you modify the Products. If you request, Avaya may
perform repair or other services not covered by this Agreement to your Avaya
Products at Avaya's standard rates for such service.
<PAGE>
C. Although Products are designed to be reasonably secure, Avaya makes no
express or implied warranty that Products are immune from or prevent fraudulent
intrusion, unauthorized use or disclosure or loss of proprietary information.
Certain Software features, is purchased, such as Password Reset, Conference
Mailbox, Skip Password and Monitor Mailbox, when enabled, could be improperly
used in violation of privacy laws. By ordering Products with these features, or
separately ordering such features, you assume all responsibility for assuring
their proper and lawful use. D. You agree to notify Avaya prior to moving a
Product. Additional charges may apply if Avaya incurs additional costs in
providing warranty or post-warranty services as a result of a move of a Product.
E. If the Product supports Telephony over Transmission Control Protocol/Internet
Protocol (TCP/IP) facilities, you may experience certain compromises in
performance, reliability and security even when the Product performs as
warranted. These compromises may become more acute if you fail to follow Avaya's
recommendations for configuration, operation and use of the Product. YOU
ACKNOWLEDGE THAT YOU ARE AWARE OF THESE RISKS AND THAT YOU HAVE DETERMINED THEY
ARE ACCEPTABLE FOR YOUR APPLICATION OF THE PRODUCT. YOU ALSO ACKNOWLEDGE THAT,
UNLESS EXPRESSLY PROVIDED IN ANOTHER AGREEMENT, YOU ARE SOLELY RESPONSIBLE FOR
(1) ENSURING THAT YOUR NETWORKS AND SYSTEMS ARE ADEQUATELY SECURED AGAINST
UNAUTHORIZED INTRUSION, AND (2) BACKING UP YOUR DATA AND FILES.
8. POST-WARRANTY SERVICE - A. Post-warranty service includes preventive
maintenance as deemed appropriate by Avaya and remedial maintenance, including
replacement parts required for Products used under normal operating conditions.
B. If you subsequently purchase products ("Added Products") from Avaya or a
third party and co-locate those products with the existing ones, those Added
Products will be automatically covered under this Agreement. For Added Products
purchased from Avaya or an authorized Avaya reseller, post-warranty service
coverage will be effective upon Avaya's warranty expiration. Added Products
purchased from a party other than Avaya or an authorized Avaya reseller, are
subject to certification by Avaya at Avaya's then current rates for such
certification; post-warranty service coverage will be effective immediately
after Avaya certifies the Added Products. Charges for Added Products will be at
the then current rate, and coverage will be coterminous with the coverage for
the existing Products.
9. WARRANTY AND POST-WARRANTY COVERAGE AND SUPPORT - A. PURCHASED OR REPLACEMENT
PARTS AND PRODUCTS MAY BE NEW, REMANUFACTURED OR REFURBISHED. Any removed parts
and/or Products will become the property of Avaya. B. Warranty and post-warranty
service coverage will be in accordance with the option(s) you have selected as
listed on the front of this Agreement. Avaya's standard warranty and
post-warranty coverage will apply if none is specified. Avaya's warranty and
post-warranty service coverage options including Avaya's Year 2000 Compliance
Commitment, and your responsibilities, are described in the SOSP. C. If you have
ordered post-warranty service, during Avaya's warranty and post-warranty service
periods. Avaya is responsible for damage (excluding loss or corruption of data
records) to your voice Products (e.g., DEFINITY'ECS, and intuity *AUDIX* systems
but not any data or video products) from power surges as long as you have
installed to the Products and the electrical protection which complies with the
National Electrical Code, any applicable local standards, and any
Avaya-specified site requirements. A pending or active Avaya post-warranty
service agreement is a prerequisite for this power surge coverage. D. Avaya may,
at its discretion, electronically monitor your system for the sole purpose of
collecting and recording the configuration of and the number and kinds of
products in your system. Such monitoring will serve three (3) principal
purposes: (1) the information will permit more accurate remote diagnostics and
corrective actions, (2) the information will be used once a year, before the
renewal date of any Service Agreement, or the annual anniversary date of a
multi-year Agreement, to determine applicable charges; (3) the information will
verify compliance with the Software License as set forth in Section 14. Products
identified in the annual data collection will be treated as Added Products under
Section 8.B. You will cooperate with Avaya in such data collection, including
making remote access available to Avaya for this purpose.
<PAGE>
10. PRICE AND PAYMENT - A. Avaya will Invoice recurring charges in advance and
will invoice nonrecurring charges no sooner than the Delivery Date for
Customer-installed Products or the In-Service Date for Avaya-installed Products,
whichever is applicable, or in the case of remotely enabled Software, and
enablement of such Software, unless Avaya renders an invoice sooner pursuant to
Sections 2.A., or 5.B. Except for payments due under Section 2.A., 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 ___ thereof, or the maximum
amount allowed by law. Restrictive endorsements or other statements on checks
___ apply. You agree to reimburse Avaya for reasonable attorneys' fees and any
other costs associated with ________ 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 Avaya with a tax exemption certificate.
Excluded are taxes on Avaya's net income. C. You shall pay all shipping,
handling, rigging and other destination charges.
11. TITLE/RISK OF LOSS - Title and risk of loss for Customer-installed equipment
shall pass to you on the Delivery Date. Title to Avaya-installed equipment shall
pass to you on the In-Service Date; risk of loss shall pass to you on the
Delivery Date. Title and risk of loss for equipment previously used under a
Avaya Term Plan or equivalent shall pass to you at the time the agreement to
purchase is accepted by Avaya.
12. SECURITY INTEREST - Avaya or its assignee shall have a purchase money
security interest in the Products to secure payment of the purchase price and
any installation charges until they are paid in full. You agree to execute and
deliver all documents requested by Avaya to protect and maintain Avaya's
security interests. You appoint Avaya as your agent to sign and file a financing
statement to perfect Avaya's security interest.
13. PATENT AND COPYRIGHT INDEMNITY - A. Avaya will defend or settle, at its own
expense, any claim or suit against you alleging that any Avaya Products
furnished under this Agreement infringe any United States patent or copyright.
Avaya will also pay all damages and costs that by final judgment may be assessed
against you due to such infringement. Avaya's obligation is expressly
conditioned upon the following: (1) you shall promptly notify Avaya in writing
of such claim or suit; (2) Avaya shall have sole control of the defense or
settlement of such claim or suit; (3) you shall cooperate with Avaya in a
reasonable way to facilitate the settlement or defense of such claim or suit;
and (4) the claim or suit does not arise from your modifications, or from use or
combinations of Products provided by Avaya with products provided by you or
others. B. If any Avaya Products become, or in Avaya's opinion are likely to
become, the subject of an infringement suit, Avaya will, at its option: (1)
procure for you the right to continue using the applicable Products; (2) replace
or modify the Products to provide you with a non-infringing product that is
functionally equivalent in all material respects; or (3) refund the purchase or
one-time software license fee less a reasonable allowance for use.
14. SOFTWARE LICENSE - A. Avaya grants you a personal, non-transferable and
non-exclusive right to use, in object code form, all software and related
documentation furnished under this Agreement. Title to and ownership of all
software shall remain with Avaya or its suppliers. This grant shall be limited
to use with the equipment for which the software was obtained or, on a temporary
basis, on back-up equipment when the original equipment is inoperable. Use of
software on multiple processors is prohibited unless otherwise agreed to in
writing by Avaya. You will refrain from taking any steps, such reverse assembly
or reverse compilation, to derive a source code equivalent of the software or to
develop other software. You will not enable or attempt to permit any third party
to enable software features or capacity (e.g., additional storage hours, ports
or mailboxes) which Avaya licenses as separate products without Avaya's prior
written consent. You will use your best efforts to ensure that your employees
and users of all software licensed under this Agreement comply with these terms
and conditions. B. You may make a single archive copy of software. Any such copy
must contain the same copyright notice and proprietary markings that the
original software contains. Use of software on any equipment other than that for
which it was obtained removal of software from the United States, or any
<PAGE>
other material breach of the software license shall immediately and
automatically terminate this license. C. If the terms of this Agreement differ
from the terms of any license agreement packaged with software, the terms of the
license agreement in the packaged software shall govern. D. If the equipment
purchased hereunder is sold or assigned to another party Avaya requires that the
new owner or assigned execute a new software license and pay the then current
software license fee, if any Upon written request, Avaya will grant the new
owner or assignee of the equipment the right to use any related software,
provided the new owner or assignee agrees, in writing, to Avaya's terms and
conditions and pays Avaya's then current software license fee. If the new owner
or assignee of the equipment refuses to execute a new software license agreement
or pay the applicable software license fee, or if the equipment is no longer to
be used by you, you shall either return the software, together with any copies,
or destroy the software and all copies, and provide Avaya with prompt written
notice of such destruction.
15. EXCLUSIVE REMEDIES AND LIMITATIONS OF LIABILITY - A. THE ENTIRE LIABILITY OF
AVAYA 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 OF 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
INFRINGEMENT, THE REMEDIES STATED IN SECTION 13; (2) FOR FAILURE OF PRODUCTS
DURING THE WARRANTY PERIOD, THE REMEDIES STATED IN SECTION 6; (3) FOR DELAYS IN
THE DELIVERY OR IN-SERVICE DATE, WHICHEVER IS APPLICABLE, AVAYA SHALL HAVE NO
LIABILITY UNLESS THE DELIVERY OR IN-SERVICE DATE IS DELAYED BY MORE THAN THIRTY
(30) DAYS BY CAUSES NOT ATTRIBUTABLE TO EITHER YOU OR FORCE MAJEURE CONDITIONS,
IN WHICH CASE YOUR SOLE REMEDY SHALL BE TO CANCEL THE ORDER WITHOUT INCURRING
CANCELLATION CHARGES; (4) FOR AVAYA'S FAILURE TO PERFORM ANY OTHER MATERIAL TERM
OF THIS AGREEMENT (E.G., AVAYA'S POST-WARRANTY SERVICE OBLIGATIONS), YOUR SOLE
REMEDY SHALL BE TO TERMINATE THIS AGREEMENT WITHOUT INCURRING CANCELLATION
CHARGES IF AVAYA FAILS TO CORRECT SUCH FAILURE WITHIN THIRTY (30) DAYS OF
RECEIPT OF YOUR WRITTEN NOTICE; (5) FOR DAMAGES TO REAL OR TANGIBLE PERSONAL
PROPERTY OR FOR BODILY INJURY OR DEATH TO ANY PERSON FOR WHICH AVAYA'S SOLE
NEGLIGENCE WAS THE PROXIMATE CAUSE, YOUR RIGHT TO PROVEN DAMAGES TO PROPERTY OR
PERSON AND (6) FOR CLAIMS OTHER THAN SET FORTH ABOVE, AVAYA'S LIABILITY SHALL BE
LIMITED TO PROVEN DIRECT DAMAGES IN AN AMOUNT NOT TO EXCEED THE PURCHASE PRICE
OF THE PRODUCT OR SERVICE GIVING RISE TO THE LIABILITY OR $100,000, WHICHEVER IS
LESS. B. EXCEPT TO THE EXTENT PROVIDED IN SUBSECTION 15.A.(5), AVAYA SHALL NOT
BE LIABLE FOR THE FOLLOWING TYPES OF DAMAGES: (1) INDIRECT OR INCIDENTAL
DAMAGES, (2) SPECIAL OR CONSEQUENTIAL DAMAGES; INCLUDING BUT NOT LIMITED TO:
LOST PROFITS, SAVINGS OR REVENUES OF ANY KIND, LOST, CORRUPTED, MISDIRECTED OR
MISAPPROPRIATED DATA OR MESSAGES; AND CHARGES FOR COMMON CARRIER
TELECOMMUNICATION SERVICE OR FACILITIES ACCESSED THROUGH OR CONNECTED TO
PRODUCTS ("TOLL FRAUD"). AVAYA SHALL NOT BE LIABLE FOR THE TYPES OF DAMAGES
ENUMERATED ABOVE WHETHER OR NOT AVAYA HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. THIS PARAGRAPH SHALL SURVIVE THE FAILURE OF ANY EXCLUSIVE REMEDY.
16. THIRD PARTY PRODUCTS - The decision to acquire or use hardware software (in
any form), networks, supplies facilities or services from parties other than
Avaya ("Third Party Products") is yours, even if Avaya helps you identify,
evaluate or select them. EXCEPT AS SPECIFICALLY AGREED TO IN WRITING, AVAYA IS
NOT RESPONSIBLE FOR, AND EXPRESSLY DISCLAIMS LIABILITY FOR,
<PAGE>
PERFORMANCE OR QUALITY OF THIRD PARTY PRODUCTS OR THEIR SUPPLIERS AND THEIR
FAILURE TO MEET YOUR EXPECTATIONS WILL NOT AFFECT YOUR OBLIGATIONS To AVAYA; any
claim that you have in connection with the Third Party Products and any remedies
for such claim will be against the supplier of such Third Party Products.
17. CANCELLATION/TERMINATION - A. If you cancel the whole or a substantial
portion of a Product order after this Agreement is signed but prior to the CCD,
you will pay a fee equal to ten percent (10%) of the purchase price license fee
for the canceled Products. If you cancel an order in whole or part after the CCD
but before installation has begun, or enablement of remotely enabled software,
you will pay a fee equal to twenty percent (20%) of the purchase price/license
fee for the canceled Products plus all incurred shipping costs. If you cancel
after installation has begun, you will pay the full purchase price and/or
license fee, shipping charges and installation charges to the cancellation date.
B. Prior to the commencement of post-warranty service, you may cancel coverage
and receive a full refund of any prepaid amount. After commencement of any
initial or renewal term of post-warranty service, you may terminate Service
coverage upon thirty (30) days written notice. If you provide notice of you
intent to terminate during the first thirty (30) days of coverage, you will only
be responsible for the charges for the period of coverage up until the effective
date of termination. After the first thirty (30) days of coverage, you may
provide notice to terminate the Agreement subject to a termination charge equal
to the monthly charges for twelve (12) months or the period remaining, whichever
is less. For prepaid agreements, Avaya will refund or credit the pro rate price
of the remaining term less the applicable termination charge. C. Except for
Avaya's termination rights as stated in Section 14.B., if you fail to perform
any material term or conditions 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 Avaya may terminate this Agreement
and exercise any available rights. Upon termination by Avaya, you shall be
liable for cancellation and/or termination charges and any other applicable
charges.
18. 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 18. B. If a Dispute arises, the
parties will endeavor to resolve the Dispute through good faith negotiation
within forty-five (45) days of notification of the Dispute. If the Dispute
cannot be settled through good faith negotiation, Avaya and you will submit the
Dispute to nonbonding mediation conducted by the American Arbitration
Association ("AAA") or any other mutually acceptable alternate dispute
resolution organization. Each party shall bear its own expenses but those
related to the compensation of the mediator shall be borne equally. The parties,
their representatives, other participants and the mediator or (and arbitrator,
if any) shall hold the existence, content and result of mediation in confidence.
If the Dispute is not resolved through mediation, claims may be brought in a
state or federal court ___ competent jurisdiction or resolved through binding
arbitration. C. Any Dispute you have against Avaya with respect to this
Agreement must be brought in accordance with this Section 18 within two (2)
years after the cause of action arises.
19. FORCE MAJEURE - Avaya shall have no liability for delays, failure in
performance or damages due to: fire explosion, power failures, pest damage,
lightning or power surges (except as provided in Section 9.C.), strikes of labor
disputes, water, 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, performance or
availability of communications services or network facilities, unauthorized use
of the Products, or other causes beyond Avaya's control whether or not similar
to the foregoing.
20. ASSIGNMENT - Neither party may assign this Agreement without the prior
written consent of the other party; which consent shall not be unreasonably
withheld. However, Avaya may assign this Agreement to present or future
affiliate, subsidiary, successor or distributor or may assign its right to
receive payment without
<PAGE>
your consent. Notwithstanding the foregoing, any assignment of software shall be
governed exclusively by Section 14.D., above.
21. SUBCONTRACTING - Avaya may subcontract work to be performed under this
Agreement, but shall retain responsibility for the work.
22. 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. You
certify that the Products acquired hereunder are intended for your use in the
ordinary course of your business and not for the purpose of resale. D. This
Agreement shall be governed by the local laws (as opposed to the conflict of law
provisions) of the State of New Jersey. E. THIS AGREEMENT, THE PROJECT
MILESTONES AND RESPONSIBILITIES DOCUMENT, WHEN APPLICABLE, AND THE SOSP IS THE
ENTIRE AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE PRODUCTS AND SERVICES
PROVIDED HEREUNDER AND SUPERSEDES ALL PRIOR AGREEMENTS, PROPOSALS,
COMMUNICATIONS BETWEEN THE PARTIES AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL.
YOUR SIGNATURE BELOW ACKNOWLEDGES THAT YOU HAVE RECEIVED AND READ THE ABOVE
TERMS AND CONDITIONS.
<PAGE>
ATTACHMENT `A'
ADDENDUM TO PURCHASE/SERVICE AGREEMENT
CONTRACT NO. CA110002861
FOR AVAYA SOFTWARE PERMISSIONS TO MAINTAIN
STATIONS AND TRUNKS
Avaya Inc. ("Avaya") and you, NetScreen Technologies, Inc., agree that this
Addendum amends, and to the extent it differs, modifies the above referenced
Agreement ("Agreement").
Add the following new Section:
I. STATIONS AND TRUNKS MAINTENANCE RIGHT TO USE
A. As part of your Agreement, Avaya agrees to provide you, for a one time
installation charge of $60.00, a personal, non-transferable and
non-exclusive right to use the Avaya Software Permissions to Maintain
Stations and Trunks.
B. Use of this software is governed by the terms of the software license
and the patent and copyright indemnity sections in the above referenced
Agreement.
C. Upon the termination of your Avaya Service Agreement, you agree to
allow Avaya either remote access to your system, or access to your
premises if your remote access line has been disconnected, to
de-activate the Avaya Software Permissions to Maintain Stations and
Trunks. You will continue to be billed the monthly charges for your
Service Agreement until Avaya has been allowed access to de-activate
these Permissions. If you choose to, you may continue your right to use
the Avaya Software Permissions to Maintain Stations and Trunks, by
signing Avaya's terms and conditions for the Maintenance Assist Offer
and paying Avaya's then current charges for such Maintenance Assist
Offer.
Except as modified above, all other terms and conditions of the above referenced
Agreement shall remain in full force and effect.
NetScreen Technologies, Inc. Avaya, Inc.
/s/ Benshad Beheshti /s/ Illegible
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Director of Information Technology (left blank)
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November 21, 2000 (left blank)
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