朗讯公司标准OEM采购协议书范本.doc

. . LUCENT TECHNOLOGIES INC. STANDARD OEM PURCHASE AGREEMENTTERMS AND CONDITIONS Agreement No. SC11990054 Sheet 1 of 28Packeteer Inc.10495 N. De Anza Blvd.Cupertino, CA 95014This Agreement is made by and between Lucent Technologies Inc. <"Company">having an office at 188 Mt Airy Road, Basking Ridge, NJ 07920 and Packeteer Inc.<"Supplier"> having an office at 10495 N. De Anza Blvd., Cupertino, CA 95014.Company agrees to purchase and Supplier agrees to sell in accordance with theterms and conditions stated in this Agreement and any attachments to thisAgreement.WHEREAS, Company wishes to purchase products of Supplier's <design and>manufacture for resale to Company's customers, andWHEREAS, Supplier desires to sell such materials to Company for resale toCompany's customers,THEREFORE, the parties agree as follows1. AGREEMENT EFFECTIVE PERIOD The term of this Agreement shall commence on, June 25, 1999, and shall, except as otherwise provided in this Agreement, continue in effect thereafter until September 21, 2003.2. MATERIAL "MATERIAL" as used in this Agreement shall mean Supplier's PacketShaper Products as listed in APPENDIX A, attached and made a part of this Agreement. Such MATERIAL is hereby offered for sale of hardware and license to software by Supplier and may be purchased by Company in accordance with the terms, conditions and specifications stated in this Agreement. This Agreement is a non-commitment agreement and MATERIAL shall be furnished by Supplier on an as-ordered basis.<PAGE> 2 Agreement No. SC11990054 Sheet 2 of 28 "Specification<s>" as used in this Agreement shall mean all of the specifications made part of this Agreement.3. OPTION TO EXTEND Company shall have the right to extend the period specified in the section "AGREEMENT EFFECTIVE PERIOD" for up to twelve <12> months by giving Supplier at least thirty <30> business days prior written notice. Within ten <10> business days of the date of Company's notice to extend the period, Supplier shall notify Company in writing whether Supplier proposes to revise the price<s> under this Agreement. If the parties fail to agree on the revised price<s> within twenty <20> business days after the date of Supplier's notice, Company's notice of extension shall be considered withdrawn and prices for outstanding orders or orders placed during the term of this Agreement shall not be revised.4. PRICE AND DISCOUNTS Prices shall be as shown in APPENDIX A. Prices as listed in Appendix A shall remain in effect during the period June 25, 1999 through June 24, 2000. Thereafter, Supplier may increase prices once in the remaining twelve <12> months term of the Agreement. Supplier shall notify Company sixty <60> business days in advance of any proposed price increase. Orders placed prior to the proposed effective date shall not be affected by the proposed price revision. If Company and Supplier fail to agree upon prices by the proposed effective date, Company reserves the right to terminate this Agreement and any outstanding purchase orders placed against this Agreement without any cost to or liability or obligation of Company.5. COST REDUCTION Both parties shall endeavor to reduce the costs of products furnished under this Agreement.6. BEST PRICE If, at any time during the term of this Agreement Supplier should sell to any customer other than to affiliates or subsidiaries of Supplier, material at least equal or similar quality and volume at a price lower than that in effect under this Agreement, Company shall pay such lower price on all deliveries of MATERIAL which are made during the period when such lower price is in effect Subject to Company's obligations including without limitation, Company's obligations of confidentiality, and upon ten <10> days written notice and not more than twice per calendar year, a qualified third party, reasonably acceptable to both parties, may audit Supplier's applicable books and records for the purpose of verifying Supplier's compliance with this provision. Such third party shall be subject to a confidentiality agreement and any report shall be limited to verifying Supplier's obligations under this section.7. TERMS OF PAYMENT Net thirty <30> business days from the date of shipment of the MATERIAL to Company, or designate, or receipt of the applicable invoice.* Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions.<PAGE> 3 Agreement No. SC11990054 Sheet 3 of 288. FORECASTS Company shall provide Supplier with a * forecast submitted to Supplier by the fifth <5th> business day of each calendar month. Such forecast shall be used by Supplier for planning purposes only and shall not be deemed a commitment by Company to purchase the MATERIAL shown in the forecast.9. FOB The MATERIAL shall be shipped FOB Supplier's location < or such other Supplier's location as may be designated by Supplier>. Company shall select the carrier<s> and provide the name<s> of the carrier<s> and Company's account number<s> with said carriers to Supplier within thirty <30> days of execution of this Agreement.10. FREIGHT CLASSIFICATION MATERIAL purchased under this Agreement shall be shipped to Company or Company's customers subject to freight charges appropriate for goods classified as Data Communication Products. Supplier shall indicate on the bill of lading that Company's contract rates apply.11. NON-EXCLUSIVE MARKET RIGHTS This Agreement neither grants to Supplier an exclusive right or privilege to sell to Company any or all products of the type described in the MATERIAL section which Company may require, nor requires the purchase of any MATERIAL or other products from Supplier by Company. Therefore, Company may contract with other manufacturers and suppliers for the procurement of comparable products. In addition, Company shall, at its sole discretion, decide the extent to which Company will market advertise, promote, support or otherwise assist in further offerings of the MATERIAL. Purchases by Company under this Agreement shall neither restrict the right of Company to cease purchasing nor require Company to continue any level of such purchases. Company's right to any supply of MATERIAL hereunder is non-exclusive except for MATERIAL marked with INSIGNIA. Supplier shall have the right to supply comparable products to third parties.12. SPECIFICATIONS OR DRAWINGS Supplier's standard commercial specifications <data sheets> are included by reference and further defined in APPENDIX B <"Specifications">. Supplier shall manufacture MATERIAL in accordance withSpecifications, so that MATERIAL conforms to such Specifications. In accordance with the notification requirements outlined in Section "PRODUCT CHANGES", Supplier shall provide Company with at least thirty <30> business days prior written notice of any hardware change, and any notification of any software change* Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions.<PAGE> 4 Agreement No. SC11990054 Sheet 4 of 28 to be made by Supplier in the MATERIAL furnished pursuant to said Specifications under this Agreement. If Company, in its sole discretion, does not agree to the change proposed by Supplier, Company may submit a Modification Request to address the change. If the Company's Modification Request is not an acceptable solution, then in lieu of all other rights and remedies at law or equity or otherwise, and without any cost to or liability or obligation of Company, Company shall have the right to terminate this Agreement . Supplier shall continue to supply MATERIAL to Company pursuant to the Specifications for the term of the Agreement. If Supplier is unable to continue to thus supply or discontinues manufacture of MATERIAL, Company shall be entitled to three <3> month's advance notice, provided <i> the discontinuance is at Supplier's election and <ii> there has been a reasonable amount of purchases during the period preceding Supplier's notice of discontinuance.13. ASSIGNMENT Supplier shall not assign any right or interest under this Agreement <excepting solely for moneys due or to become due> without the prior written consent of Company, provided however, no such consent shall be required in connection with the sale of all or substantially all of the business of Supplier related to MATERIAL or in connection with any merger, reorganization or sale of Supplier. Except where Company has specified a designated subcontractor, Supplier shall be responsible to Company for all work performed by Supplier's subcontractor<s> at any tier. In the event of an assignment, Company may terminate this Agreement or an order, in whole or in part, by written notice to Supplier. In such case, Company's liability shall be limited to payment of the amount due for Work performed and/or MATERIAL provided by Supplier up to and including the date of termination.14. BANKRUPTCY AND TERMINATION FOR FINANCIAL INSECURITY Either party may terminate this Agreement by notice in writing: <i> if the other party makes an assignment for the benefit of creditors <other than solely an assignment of monies due> or: <ii> if the other party evidences an inability to pay debts as they become due, unless adequate assurance of such ability to pay is provided within thirty <30> days of such notice. If a proceeding is commenced under any provision of the United States Bankruptcy Code, voluntary or involuntary, by or against either party, and this Agreement has not been terminated, the non-debtor party may file a request with the bankruptcy court to have the court set a date within sixty <60> days after the commencement of the case, by which the debtor party will assume or reject this<PAGE> 5 Agreement No. SC11990054 Sheet 5 of 28 Agreement, and the debtor party shall cooperate and take whatever steps necessary to assume or reject the Agreement by such date.15. CFC PACKAGING Supplier warrants that all packaging materials furnished under this Agreement and all packaging associated with MATERIAL furnished under this Agreement were not manufactured using and do not contain chlorofluorocarbons. "Packaging" means all bags, wrapping, boxes, cartons and any other packing materials used for packaging. Supplier shall indemnify and hold Company harmless for any liability, fine or penalty incurred by Company to any third party or governmental agency arising out of Company's good faith reliance upon said warranty.16. CHOICE OF LAW This Agreement and all transactions under it shall be governed by the laws of the State of New Jersey excluding its choice of laws rules and excluding the Convention for the International Sale of Goods. Supplier agrees to submit to the jurisdiction of any court wherein an action is commenced against Company based on a claim for which Supplier has agreed to indemnify Company under this Agreement.17. COMPLIANCE WITH LAWS Supplier and Company and all persons furnished by Supplier and Company shall comply at their own expense with all applicable laws, ordinances, regulations and codes, export regulations, including the identification and procurement of required permits, certificates, licenses, insurance, approvals and inspections in performance under this Agreement.18. CONTINUING AVAILABILITY Supplier shall offer for sale to Company, during the term of this Agreement and for at least six <6> months after the expiration of this Agreement, MATERIAL conforming to the Specifications set forth in this Agreement. Supplier further shall offer for sale to Company, during the term of this Agreement and until * after the expiration of this Agreement, maintenance, replacement, and repair parts <"Parts"> which are functionally equivalent for the MATERIAL covered by this Agreement. The price for the MATERIAL and Parts shall be the price set forth in Supplier's then current agreement with Company for said MATERIAL or Parts or, if no such agreement exists, at a price agreed upon by Company and Supplier. If the parties fail to agree on a price, the price shall be a reasonably competitive price for said MATERIAL or Parts at the time for delivery. The MATERIAL and Parts shall be warranted as set forth in the "WARRANTY" section of this Agreement. The term "Parts" is included in the term "MATERIAL." In the event Supplier fails to supply such MATERIAL or Parts and Supplier is unable to obtain another source of supply for Company, then Company and Supplier shall endeavor to develop an alternative method of provisioning MATERIAL or parts, which* Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been reque