1
CONFIDENTIAL TREATMENT GRANTED
EXHIBIT 10.75
REDACTED
CONTRACT NO. LAK412D
CONTRACTUAL AGREEMENT
BETWEEN
LUCENT TECHNOLOGIES INC.
AND
SPECTRAN CORPORATION
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CONTRACT NO. LAK412D
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INDEX
ARTICLE PAGE
INTRODUCTION 1
1.0 MATERIAL 1
2.0 ORDERING COMPANIES 1
3.0 TERM 1
4.0 OPTION TO EXTEND 1
5.0 PRODUCT SPECIFICATION 2
6.0 PACKAGING SPECIFICATION 2
7.0 QUANTITIES 2
8.0 SCHEDULE 2
9.0 CANCELLATION OF PURCHASE ORDER 3
10.0 F.O.B. 3
11.0 TERMS OF PAYMENT 3
12.0 PRICE 3
13.0 [ *** ]
14.0 BANKRUPTCY AND TERMINATION FOR FINANCIAL SECURITY 4
15.0 SHORTFALL 4
16.0 ASSIGNMENT AND SUBCONTRACTING 5
17.0 CFC PACKAGING 5
18.0 CHANGES 5
19.0 CHOICE OF LAW 5
20.0 COMPLIANCE WITH LAWS 5
21.0 FORCE MAJEURE 5
22.0 GOVERNMENT CONTRACT PROVISIONS 6
23.0 HEAVY METALS IN PACKAGING 6
24.0 INDEMNITY 6
25.0 IDENTIFICATION 6
26.0 IMPLEADER 7
27.0 INFRINGEMENT 7
28.0 GRANT OF "HAVE MADE" RIGHTS 7
29.0 INSPECTION 7
30.0 INSURANCE 8
31.0 INVOICING 8
32.0 MEDIATION 8
33.0 NOTICES 8
34.0 OZONE DEPLETING SUBSTANCES LABELING 9
35.0 PAYMENT TERMS 9
36.0 PRODUCT CONFORMANCE 9
37.0 RELEASES VOID 9
38.0 RIGHT OF ENTRY AND PLANT RULES 9
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CONTRACT NO. LAK412D
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39.0 SHIPPING 9
40.0 SURVIVAL OF OBLIGATIONS 9
41.0 TAXES 10
42.0 TITLE AND RISK OF LOSS 10
43.0 USE OF INFORMATION 10
44.0 WAIVER 10
45.0 WARRANTY 10
46.0 WORK DONE BY OTHERS 10
47.0 TOOLS AND EQUIPMENT 10
48.0 ENTIRE AGREEMENT 11
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ACCEPTANCE SHALL BE
INDICATED BY SIGNING AND
RETURNING ORIGINAL TO:
SPECTRAN CORP. LUCENT TECHNOLOGIES INC.
Attn: Ray Jaeger Attn: Global Procurement
50 Hall Road 2000 Northeast Expressway
Sturbridge, Ma. 01566 Norcross, Georgia 30071
Lucent Technologies Inc. ("Company") agrees to purchase and SpecTran Corp. or
any affiliated corporation, partnership or venture of SpecTran Corp.
("Supplier") agrees to sell in accordance with the terms and conditions stated
within this Agreement, and Attachments A and B and C, which are attached hereto
and made part of this Agreement. Notwithstanding the foregoing, SpecTran Corp.
shall be responsible for all MATERIAL provided under this Agreement. The term
"MATERIAL" in this Agreement includes the [*** ] and
any modifications to these specifications which may be made from time to time
in accordance with the PRODUCT SPECIFICATION AND PACKAGING clauses below, or
derivatives of these specifications which are minor modifications to the
Specifications.
The Attachments noted above are listed and described below:
[*** ]
Attachment B - Packaging Specification [ *** ]
Attachment C - Non-Disclosure Agreement Dated 10/21/92.
1.0 MATERIAL--MATERIAL shall be [ *** ] Multimode Optical Fiber manufactured to
[ *** ]
2.0 ORDERING COMPANIES--Lucent Technologies Inc. or any affiliated corporation,
partnership, or venture, as may be designated in writing by Lucent Technologies
Inc. may order under this Agreement. For the purpose of this Agreement, the
term "Company" shall mean the corporation or other entity which enters into or
issues an Order under this Agreement. An affiliated corporation, partnership,
or venture is an entity, a majority of whose voting stock or ownership interest
is owned directly or indirectly by Lucent Technologies Inc. Any Order issued
under this Agreement shall be a contractual relationship between the ordering
Company and Supplier, and Supplier shall look only to the ordering Company for
performance of Company's obligations under such Order.
3.0 TERM--Agreement shall begin on 9/1/96 and end on 12/31/99.
4.0 OPTION TO EXTEND--Company shall have the right to extend the period
specified in the clause TERM for up to one (1) year by giving Supplier written
notice a minimum of six (6) months prior to the expiration of the contract. At
the time of the request to extend this Agreement, pricing for the agreed upon
quantities shall be negotiated and agreed upon by both parties.
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5.0 PRODUCT SPECIFICATION-- [ *** ]
Multimode Optical Fiber. Any changes to the current specifications set forth in
this Agreement can only be made with the consent and agreement of both parties
6.0 PACKAGING SPECIFICATION--Packaging Specification [ *** ]
Any changes to the current specification set forth in this Agreement can only
be made with the consent and agreement of both parties.
7.0 QUANTITIES - Company commits to purchase and Supplier commits to sell [ ***
]
MATERIAL as stated below [ *** ]
(a) [ *** ] Company commits to purchase and Supplier commits to [ ***
]
[ *** ] Company shall also commit to [ *** ]
(b) [ ] Company commits to purchase and Supplier commits to supply
[ *** ] of MATERIAL [ *** ]
[ *** ] Company shall commit to [ *** ]
(c) [ *** ] Company commits to purchase and Supplier commits to supply
[ *** ] of MATERIAL [ *** ]
[ *** ] Company shall commit to [ *** ]
(d) [ *** ] Company commits to purchase and Supplier commits to supply
[ *** ] of MATERIAL [ *** ]
8.0 SCHEDULE [ *** ] the amount Company commits to purchase and Supplier
commits to sell will be [ *** ] Company will
provide to Supplier [ *** ]
Company shall issue orders to Supplier [ *** ] Each
order will have quantities and delivery dates for MATERIAL [ *** ]
Company shall make its best effort to [ *** ]
[ *** ] Company determines that it wishes to purchase [ ***
] Company may notify Supplier in writing [ ***
]
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[ ***
]
9.0 CANCELLATION OF PURCHASE ORDER - Subject to the provisions of clause 7.0
entitled "QUANTITIES", and clause 8.0 entitled "SCHEDULE", [ *** ]
Unless otherwise specified in this Agreement, [ ***
]
10.0 F.O.B.--Destination--Supplier shall be responsible for all transportation
cost for MATERIAL shipped to any U.S. destination.
11.0 TERMS OF PAYMENT--Net thirty (30) days for MATERIAL from date of receipt
of invoice.
12.0 PRICE--Pricing for MATERIAL shall be as follows:
1) [ *** ]
2) [ *** ]
[ ***
]
13.0 [ *** ]
1) [ *** ]
2) [ *** ]
3) [ ***
]
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4) [ ***
]
[ ***
]
a) [ ***
]
b) [ *** ]
c) [ ***
]
5) [ ***
]
14.0 BANKRUPTCY AND TERMINATION FOR FINANCIAL SECURITY--Either party may
terminate this Agreement by notice in writing:
1. If the other party makes an assignment for the benefit of creditors
(other than solely an assignment of monies due); or
2. If the other party evidences an inability to pay debts as they become
due, unless adequate assurances of such ability to pay is provided
within thirty (30) days of such notice.
If a proceeding is commenced under any provisions 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 Agreement, and the debtor party shall cooperate and take whatever
steps necessary to assume or reject the Agreement by such date.
15.0 SHORTFALL - As provided in 8.0 SCHEDULE clause, Company has agreed to
purchase and Supplier has agreed to sell specific quantities of MATERIAL. [ ***
Suppliers stated capabilities to produce. In the ev
[ *** ]
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[ ***** ]
16.0 ASSIGNMENT AND SUBCONTRACTING - Company or Supplier shall not assign any
right or interest under this Agreement (excepting monies due or to become due)
or delegate or subcontract the manufacture of MATERIAL or other obligation to
be performed or owed under this Agreement without the prior written consent of
the other. Any attempted assignment, delegation or subcontracting in
contravention of the above provisions shall be void and ineffective except for
(1) Supplier, a wholly-owned subsidiary whose primary business is the
manufacture of fiber, or (2) for either party in a successor in ownership of
all or substantially all of the assigning party's operations. In case of any
such assignment, the assigning party fully guarantees the performance hereunder
of its assignee. Any assignment of monies shall be void and ineffective to the
extent that (1) Supplier shall not have given Company at least thirty (30) days
prior written notice of such assignment or (2) such assignment attempts to
impose upon Company obligations to the assignee additional to the payment of
such monies, or to preclude Company from dealing solely and directly with
Supplier in all matters pertaining to this Agreement including the negotiation
of amendments or settlements of charges due. All Work performed by Supplier's
subcontractor(s) at any tier shall be deemed Work performed by Supplier.
17.0 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.
18.0 CHANGES - Company may at any time during the manufacture of MATERIAL
require additions to or alterations of or deductions or deviations (all
hereinafter referred to as a "Change") from the MATERIAL called for by the
specifications as required by Industry Standards. No Change shall be considered
as an addition or alteration to or deduction or deviation from the MATERIAL
called for by the specifications nor shall Supplier be entitled to any
compensation for MATERIAL manufactured pursuant to or in contemplation of a
Change, unless made pursuant to a written Change Order issued by Company.
Within ten (10) days after a request for a Change, Supplier shall submit a
proposal to Company which includes any increases or decreases in Supplier's
cost or changes in the MATERIAL schedule necessitated by the Change. Company
shall, within ten (10) days of receipt of the proposal, either (i) accept the
proposal, in which event Company shall issue a written Change Order directing
Supplier to perform the Change or (ii) advise Supplier not to perform the
Change in which event Supplier shall proceed with the original MATERIAL.
19.0 CHOICE OF LAW - The construction, interpretation and performance of 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. The parties agree that the
provisions of the New Jersey Uniform Commercial Code apply to this Agreement
and all transactions under it, including agreements and transactions relating
to the furnishing of services, the lease or rental of equipment or material,
and the license of software. 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.
20.0 COMPLIANCE WITH LAWS - Supplier and all persons furnished by Supplier
shall comply at their own expense with all applicable federal, state, local and
foreign laws, ordinances, regulations and codes, including those relating to
the use of chlorofluorocarbons, and including the identification and
procurement of required permits, certificates, licenses, insurance, approvals
and inspections in performance under this Agreement. Supplier agrees to
indemnify, defend (at Company's request) and save harmless Company, its
affiliates, its and their customers and each of their officers, directors and
employees from and against any losses, damages, claims, demands, suits,
liabilities, fines, penalties and expenses (including reasonable attorney's
fees) that arise out of or result from any failure to do so.
21.0 FORCE MAJEURE - If the performance of this Agreement or of any obligation
hereunder, other than the payment of any money, is prevented, restricted or
interfered with by reason of any act of God, civil disorder, strike,
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Contract No. LAK412D
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governmental act, war or, without limiting the foregoing, by any other cause
not within the control of a party hereto, then the party so affected, upon
giving prompt notice to the other party, shall be excused from such performance
to the extent of such prevention, restriction or interference; provided that
the party so affected shall use its best reasonable efforts to avoid or remove
such causes for nonperformance and shall continue performance hereunder with
the utmost dispatch whenever such causes are removed. If a party's performance
hereunder is continued to be delayed due to such force majeure so that Contract
objectives hereunder are not being carried out, then both parties shall use
their best reasonable efforts to remove the ramifications of the force majeure
so that the parties' performances hereunder may continue.
22.0 GOVERNMENT CONTRACT PROVISIONS - The following provisions regarding equal
opportunity, and all applicable laws, rules, regulations and executive orders
specifically related thereto, including applicable provisions and clauses from
the Federal Acquisition Regulation and all supplements thereto are incorporated
in this Agreement as they apply to work performed under specific U.S.
Government contracts: 41 CFR 60-1.4, Equal Opportunity; 41 CFR 60-1.7, Reports
and Other Required Information; 41 CFR 60-1.8, Segregated Facilities; 41 CFR
60-250.4, Affirmative Action For Disabled Veterans and Veterans of the Vietnam
Era (if in excess of $10,000); and 41 CFR 60-741.4, Affirmative Action for
Disabled Workers (if in excess of $2,500), wherein the terms "contractor" and
"subcontractor" shall mean "Supplier". In addition, orders placed under
this Agreement containing a notation that the material or services are intended
for use under Government contracts shall be subject to such other Government
provisions printed, typed or written thereon, or on the reverse side thereof,
or in attachments thereto.
23.0 HEAVY METALS IN PACKAGING - Supplier warrants to Company that no lead,
cadmium, mercury or hexavalent chromium have been intentionally added to any
packaging or packaging component (as defined under applicable laws) to be
provided to Company under this Agreement. Supplier further warrants to Company
that the sum of the concentration levels of lead, cadmium, mercury and
hexavalent chromium in the package or packaging component provided to Company
under this Agreement does not exceed 100 parts per million. Upon request,
Supplier shall provide to Company Certificates of Compliance certifying that
the packaging and/or packaging components provided under this Agreement are in
compliance with the requirements set forth above in this clause. 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 warranties or any Certificates of Compliance.
24.0 INDEMNITY - All persons furnished by Supplier shall be considered solely
Supplier's employees or agents, and Supplier shall be responsible for payment
of all unemployment, social security and other payroll taxes, including
contributions when required by law. Supplier agrees to indemnify, defend and
save harmless Company, its affiliates and its and their customers and each of
their officers, directors, employees, successors and assigns (all hereinafter
referred to in this clause as "Company") from and against any losses, damages,
claims, demands, suits, liabilities, fines, penalties and expenses (including
reasonable attorney's fees) that arise out of or result from: (1) injuries or
death to persons or damage to property, including theft, in any way arising out
of or occasioned by, caused or alleged to have been caused by or on account of
the performance of the Work or services performed by Supplier or persons
furnished by Supplier; (2) assertions under Workers' Compensation or similar
acts made by persons furnished by Supplier or by any subcontractor or by reason
of any injuries to such persons for which Company would be responsible under
Workers' Compensation or similar acts if the persons were employed by Company;
(3) any failure on the part of Supplier to satisfy all claims for labor,
equipment, materials and other obligations relating directly or indirectly to
the performance of the Work; or (4) any failure by Supplier to perform
Supplier's obligations under this clause or the INSURANCE clause. Supplier
agrees to defend Company, at Company's request against any such claim, demand
or suit. Company agrees to notify Supplier in a timely manner of any written
claims or demands against Company for which Supplier is responsible under this
clause.
25.0 IDENTIFICATION - Supplier shall not, without Company's prior written
consent, engage in advertising, promotion or publicity related to this
Agreement, or make public use of any identification in any circumstances
related
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to this Agreement, "Identification" means any copy or semblance of any trade
name, trademark, service mark, insignia, symbol, logo, or any other product,
service or organization designation, or any specification or drawing of Lucent
Technologies, or its affiliates, or evidence of inspection by or for any of
them. Supplier shall remove or obliterate any Identification prior to any use
or disposition of any material rejected or not purchased by Company, and, shall
indemnify, defend (at Company's request) and save harmless Lucent Technologies
and its affiliates and each of their officers, directors and employees from and
against any losses, damages, claims, demands, suits, liabilities, fines,
penalties and expenses (including reasonable attorneys' fees) arising out of
Supplier's failure to so remove or obliterate.
26.0 IMPLEADER - Supplier shall not implead or bring an action against Company
or its customers or the employees of either based on any claim by any person
for personal injury or death to an employee of Company or its customers
occurring in the course or scope of employment and that arises out of material
or services furnished under this Agreement.
27.0 INFRINGEMENT - [ ***
]
28.0 GRANT OF "HAVE MADE" RIGHTS - The following terms apply to any
infringement, or claim of infringement, of any patent, trademark, copyright
trade secret or other proprietary interest based on the manufacture,
installation, normal use, lease or sale of any equipment, program,
documentation, service or material, including, without limitation, the subject
of this order ("Material") furnished to Company under this Agreement or order or
in contemplation of this Agreement or order. Company agrees to, and hereby does,
exercise any "have made" rights that it may have under all patent license
agreements with third parties, [***
] and commissions Supplier to manufacture and supply the
Material under this Agreement. Company hereby agrees to indemnify and hold
harmless Supplier against patent infringement damages attributable to the
manufacture, supply and sale of the Material by Supplier to Company that
infringe any licensed patent [ *** ]. Company shall at its own expense and
responsibility, defend or settle any demand, action or suit of any claim of
infringement for which it is indemnitor, provided that Supplier notifies
Company in a timely manner of any assertion against Supplier of any claims of
infringement [ *** ] and provided that Supplier cooperates in good faith with
Company to facilitate any such action. Company will have no obligation to
indemnify Supplier with respect to any infringement or claim of infringement of
any patent or other proprietary interest of any third party except the licensed
patents [ *** ] and except as in clause 27.0 entitled "INFRINGEMENT" above.
Supplier will have obligation to indemnify Company with respect to any
infringement, or claim of infringement, of any patent or other proprietary
interest of any third party except the licensed patents under the PLA as in
clause 27.0 entitled "INFRINGEMENT".
29.0 INSPECTION - Company's Representatives shall have with reasonable prior
notice access to the Work for the purpose of inspection or a Quality Review
and Supplier shall provide safe and proper facilities for such purpose.
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30.0 INSURANCE - Supplier shall maintain and cause Supplier's subcontractors to
maintain during the term of this Agreement: (1) Worker's Compensation insurance
as prescribed by the law of the state or nation in which the Work is performed;
(2) employer's liability insurance with limits of at least $300,000 for each
occurrence; (3) comprehensive automobile liability insurance if the use of
motor vehicles is required, with limits of at least $1,000,000 combined single
limit for bodily injury and property damage for each occurrence; (4) Commercial
General Liability ("CGL") insurance, including Blanket Contractual Liability
and Broad Form Property Damage, with limits of at least $1,000,000 combined
single limit for bodily injury and property damage for each occurrence; and (5)
if the furnishing to Company (by sale or otherwise) of products or material is
involved, CGL insurance endorsed to include products liability and completed
operations coverage in the amount of $5,000,000 for each occurrence. All CGL
and automobile liability insurance shall designate Lucent Technologies, its
affiliates, and each of their officers, directors and employees (all
hereinafter referred to in this clause as "Company") as an additional insured.
All such insurance must be primary and required to respond and pay prior to any
other available coverage. Supplier agrees that Supplier, Supplier's insurer(s)
and anyone claiming by, through, under or in Supplier's behalf shall have no
claim, right of action or right of subrogation against Company and its
customers based on any loss or liability insured against under the foregoing
insurance. Supplier and Supplier's subcontractors shall furnish prior to the
start of Work certificates or adequate proof of the foregoing insurance
including, if specifically requested by Company, copies of the endorsements
and insurance policies. Company shall be notified in writing at least thirty
(30) days prior to cancellation of or any change in the policy.
31.0 INVOICING - Supplier shall: (1) render original invoice, or as otherwise
specified in this Agreement, showing Agreement and order number, through
routing and weight; (2) render separate invoices for each shipment within
twenty-four (24) hours after shipment; and (3) mail invoices with copies of
bills of lading and shipping notices to the address shown on this Agreement or
order. If prepayment of transportation charges is authorized, Supplier shall
include the transportation charges from the FOB point to the destination as a
separate item on the invoice stating the name of of the carrier used.
32.0 MEDIATION - If a dispute arises out of or relates to this Agreement, or its
breach, and the parties have not been successful in resolving such dispute
through negotiation, the parties agree to attempt to resolve the dispute
through mediation by submitting the dispute to a sole mediator selected by the
parties or, at any time at the option of a party, to mediation by the American
Arbitration Association ("AAA"). Each party shall bear its own expenses and an
equal share of the expenses of the mediator and the fees of the AAA. The
parties, their representatives, other participants and the mediator shall hold
the existence, content and result of the mediation in confidence. If such
dispute is not resolved by such mediation, the parties shall have the right to
resort to any remedies permitted by law. All such defenses based on passage of
time shall be tolled pending the termination of the mediation. Nothing in this
clause shall be construed to preclude any party from seeking injunctive relief
in order to protect its rights pending mediation. A request by a party to a
court for such injunctive relief shall not be deemed a waiver of the obligation
to mediate.
33.0 NOTICES - Any notice or demand which under the terms of this Agreement or
under any statute must or may be given or made by Supplier or Company shall be
in writing and shall be given or made by telegram, tested telex, confirmed
facsimile, or similar communication or by certified or registered mail
addressed to the respective parties as follows:
To Company: Lucent Technologies Inc.
Attention: Purchasing Representative, Suite C110
2000 Northeast Expressway
Norcross, Ga. 30071
To Supplier: SpecTran Corp.
Attention: Ray Jaeger
50 Hall Road
Sturbridge, Ma. 01566
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Such notice or demand shall be deemed to have been given or made when sent by
telegram, telex, or facsimile, or other communication or when deposited postage
prepaid in the U.S. mail. The previous addresses may be changed at any time by
giving prior written notice as above provided.
34.0 OZONE DEPLETING SUBSTANCES LABELING - Supplier warrants and certifies that
all products, including packaging and packaging components, provided to Company
under this Agreement have been accurately labeled, in accordance with the
requirements of 40 CFR, Part 82 entitled "Protection of Stratospheric Ozone,
Subpart E - The Labeling of Products Using Ozone Depleting Substances."
Supplier agrees to indemnify, defend and save harmless Company, its officers,
directors and employees from and against any losses, damages, claims, demands,
suits, liabilities, fines, penalties and expenses (including reasonable
attorneys' fees) that may be sustained by reason of Supplier's noncompliance
with such applicable law or the terms of this warranty and certification.
35.0 PAYMENT TERMS - Unless payment terms more favorable to Company appear on
Supplier's invoice and Company elects to pay on such terms, invoices shall be
paid in accordance with the terms stated in this Agreement, and due dates for
payment of invoices shall be computed from the date of receipt of invoices by
Company.
36.0 PRODUCT CONFORMANCE - Supplier shall be responsible for providing to
Company all Certified Test Data and any other information requested by Company
to verify that MATERIAL meets Company's specifications. Supplier shall be
responsible for sending the Certified Test Data information to Company's
Representative or others as may be delegated in writing prior to MATERIAL being
received by Company. Company's Representative shall be R. J. (Ron) Smith,
Member of Technical Staff.
37.0 RELEASES VOID - Neither party shall require (i) waivers or releases of
any personal rights or (ii) execution of documents which conflict with the
terms of this Agreement, from employees, representatives or customers of the
other in connection with visits to its premises and both parties agree that no
such releases, waivers or documents shall be pleaded by them or third persons in
any action or proceeding.
38.0 RIGHT OF ENTRY AND PLANT RULES - Each party shall have the right to enter
the premises, with reasonable prior notice, of the other party during normal
business hours with respect to the performance of this Agreement, subject to
all plant rules and regulations, security regulations and procedures and U.S.
Government clearance requirements if applicable.
39.0 SHIPPING - Supplier shall: (1) ship the material covered by this Agreement
or Purchase Order complete unless instructed otherwise (partial shipments will
be accepted, but not preferred); (2) ship to the destination designated in the
Agreement or order; (3) ship according to routing instructions given by Company;
(4) place the Agreement and order number on all subordinate documents; (5)
enclose a packing memorandum with each shipment and, when more than one package
is shipped, identify the package containing the memorandum; and (6) mark the
Agreement number and order number on all packages and shipping papers. Adequate
protective packing shall be furnished at no additional charge. Shipping and
routing instructions may be furnished or altered by Company without a writing.
If Supplier does not comply with the terms of the FOB clause of the Agreement or
order or with Company's shipping or routing instructions, Supplier authorizes
Company to deduct from any invoice of Supplier (or to charge back to Supplier),
any increased cost incurred by Company as a result of Supplier's noncompliance.
40.0 SURVIVAL OF OBLIGATIONS - The obligations of the parties under this
Agreement which by their nature would continue beyond the termination,
cancellation or expiration of this Agreement, including, by way of illustration
only and not limitation, those in the clauses COMPLIANCE WITH LAWS,
IDENTIFICATION, IMPLEADER, INFRINGEMENT, RELEASES VOID, USE OF INFORMATION and
WARRANTY (and INSURANCE and INDEMNITY if included in this Agreement), shall
survive termination, cancellation or expiration of this Agreement.
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41.0 TAXES - Company shall reimburse Supplier only for the following tax
payments with respect to transactions under this Agreement unless Company
advises Supplier that an exemption applies: state and local sales and use
taxes, as applicable. Taxes payable by Company shall be billed as separate
items on Supplier's invoices and shall not be included in Supplier's prices.
Company shall have the right to have Supplier contest any such taxes that
Company deems improperly levied at Company's expense and subject to Company's
direction and control.
42.0 TITLE AND RISK OF LOSS - Title and risk of loss and damage to material
purchased by Company under this Agreement shall vest in Company when the
MATERIAL has been delivered at the FOB point. If this Agreement or order issued
pursuant to this Agreement calls for additional services including, but not
limited to, unloading, installation, or testing, to be performed after
delivery, Supplier shall retain title and risk of loss and damage to the
MATERIAL until the additional services have been performed. Notwithstanding the
foregoing sentence, if Supplier is expressly authorized to invoice Company for
MATERIAL upon shipment or prior to the performance of additional services, title
to such MATERIAL shall vest in Company upon payment of the invoice, but risk of
loss and damage shall pass to Company as provided in the foregoing sentence.
43.0 USE OF INFORMATION - In accordance with the Non-Disclosure Agreement dated
10/21/92, Supplier shall view as Company's property any idea, data, program,
technical, business or other intangible information, however conveyed, and any
document, print, tape, disk, tool, or other tangible information-conveying or
performance-aiding article owned or controlled by Company, and provided to, or
acquired by, Supplier under or in contemplation of this Agreement
(Information). Supplier shall, at no charge to Company, and as Company directs,
destroy or surrender to Company promptly at its request any such article or any
copy of such Information. Supplier shall keep Information confidential and use
it only in performing under this Agreement and obligate its employees,
subcontractors and others working for it to do so, provided that the foregoing
shall not apply to information previously known to Supplier free of obligation,
or made public through no fault imputable to Supplier.
44.0 WAIVER - The failure of either party at any time to enforce any right or
remedy available to it under this Agreement or otherwise with respect to any
breach or failure by the other party shall not be construed to be a waiver of
such right or remedy with respect to any other breach or failure by the other
party.
45.0 WARRANTY - Supplier warrants to Company and its customers that MATERIAL
furnished will be new, merchantable, free from defects in design, material and
workmanship and will conform to and perform in accordance with the
specifications, drawings and samples [***
] Supplier also warrants to Company
and its customers that services will be performed in a first class, workmanlike
manner. [
***
] Supplier shall not be held liable for
any consequential damages arising out of any breach of this warranty.
46.0 WORK DONE BY OTHERS - If any of the manufacture of MATERIAL is dependent
on work done by others, Supplier shall inspect and promptly report to Company's
Representative any defect that renders such other work unsuitable for
Supplier's proper performance. Supplier's silence shall constitute approval of
such work as fit and suitable for Supplier's performance.
47.0 TOOLS AND EQUIPMENT - Unless otherwise specifically provided in this
Agreement, Supplier shall provide all labor, tools and equipment (the "tools")
for performance of this Agreement. Should Supplier actually use any tools owned
or rented by Company or its customer, Supplier acknowledges that Supplier
accepts the tools "as is, where is," that neither Company nor its customer have
any responsibility for the condition or state of repair of the tools and that
14
Contract No. LAK412D
Page 11 of 11
Supplier shall have risk of loss and damage to such tools. Supplier agrees not
to remove the tools from Company's or its customer's premises and to return the
tools to Company or its customer upon completion of use, or at such earlier
time as Company or its customer may request, in the same condition as when
received by Supplier, reasonable wear and tear expected. Any special tooling,
special test equipment, designs or other facilities which are acquired,
produced or used within proprietary processes by Supplier in connection with
this Agreement shall remain the property of Supplier, notwithstanding anything
to the contrary found elsewhere in this Agreement.
48.0 ENTIRE AGREEMENT - The typed or written provisions on Company's orders
issued pursuant to this Agreement shall be subject to this Agreement and its
Attachments and together shall constitute the entire agreement between the
parties with respect to the subject matter of this Agreement and the order(s)
and shall not be modified or rescinded except by a writing signed by Supplier
and Company. All references of these terms and conditions to this Agreement or
to work services material, equipment, products, software or information
furnished under, in performance or pursuant or in contemplation of this
Agreement shall also apply to any orders issued pursuant to this Agreement.
Printed provisions on the reverse side of Company's orders (except as specified
otherwise in this Agreement) and all provisions on Supplier's forms shall be
deemed deleted. Additional or different terms inserted in the Agreement by
Supplier, or deletions thereto whether by alterations, addenda or otherwise
shall be of no force in effect, unless expressly consented to by Company in
writing. Estimates or forecasts furnished by Company shall not constitute
commitments. The provisions of this Agreement supersede all contemporaneous
oral agreements and all prior oral and written quotations, communications,
agreements and understandings of the parties with respect to the subject matter
of this Agreement.
SPECTRAN CORP. LUCENT TECHNOLOGIES INC.
By /s/ R. E. Jaeger By /s/ E. J. Tracy
------------------------- ---------------------------
Name R. Jaeger Name E. J. Tracy
------------------------- ---------------------------
Title President Title Vice President Global Procurement
Organization
----------------------- ---------------------------------
Date 10-3-96 Date 9/27/96
----------------------- ---------------------------------
15
*** CONFIDENTIAL TREATMENT GRANTED
***
Page 1 of 7
LUCENT TECHNOLOGIES NETWORK SYSTEMS
MATERIAL SPECIFICATION
***
Lucent TECHNOLOGIES Proprietary
Not for use or disclosure outside Lucent TECHNOLOGIES
except under written agreement
16
*** CONFIDENTIAL TREATMENT GRANTED
***
Page 2 of 7
***
Lucent TECHNOLOGIES Proprietary
Not for use or disclosure outside Lucent TECHNOLOGIES
except under written agreement
17
*** CONFIDENTIAL TREATMENT GRANTED
***
Page 3 of 7
***
Lucent TECHNOLOGIES Proprietary
Not for use or disclosure outside Lucent TECHNOLOGIES
except under written agreement
18
*** CONFIDENTIAL TREATMENT GRANTED
***
Page 4 of 7
***
Lucent TECHNOLOGIES Proprietary
Not for use or disclosure outside Lucent TECHNOLOGIES
except under written agreement
19
*** CONFIDENTIAL TREATMENT GRANTED
***
Page 5 of 7
***
Lucent TECHNOLOGIES Proprietary
Not for use or disclosure outside Lucent TECHNOLOGIES
except under written agreement
20
*** CONFIDENTIAL TREATMENT GRANTED
***
Page 6 of 7
***
Lucent TECHNOLOGIES Proprietary
Not for use or disclosure outside Lucent TECHNOLOGIES
except under written agreement
21
*** CONFIDENTIAL TREATMENT GRANTED
***
Page 7 of 7
***
Lucent TECHNOLOGIES Proprietary
Not for use or disclosure outside Lucent TECHNOLOGIES
except under written agreement
22
*** CONFIDENTIAL TREATMENT GRANTED
LAK412D ATTACHMENT B
OUTSIDE MANUFACTURING SPECIFICATION NUMBER: ***
AT&T NETWORK CABLE SYSTEMS ISSUE NUMBER: ***
ATLANTA WORKS ISSUE DATE: ***
PACKAGING REQUIREMENTS
FOR MATERIALS
SHIPPED TO ATLANTA WORKS BY SUPPLIERS
1.0 APPLICABILITY
1.1 This specification establishes minimum packaging and marking requirements
for loads of incoming materials received from suppliers. Requirements
contained herein are generic and apply only when material specific
information is not included on orders, drawings, other specifications, or
supplementary information.
1.2 The intent of this specification is only to establish minimum requirements
which are compatible with AT&T - Atlanta Works internal storage and
handling facilities. It remains the supplier's responsibility to provide
packaging which insures adequate protection for the material and will
withstand the rigors of the mode of transportation used.
1.3 Loads greater than 42[inches] in length or in width, weighing more than
3,000 pounds, or having heights greater than 46[inches] (with pallet/skid)
must have separate packaging instructions relating to that specific
material. If this information is not available, contact Purchasing
Department, AT&T, Atlanta Works.
2.0 GENERAL
2.1 Materials regulated by the United States Department of Transportation must
comply with the packaging, labeling, and marking requirements of 43 CPR
established by DOT. International or air shipments in compliance with IATA
or IMC Dangerous Goods Regulations are acceptable.
2.2 Any packaging including strap, stretch wrap, etc., must not be manufactured
using and must not contain chlorofluorocarbons.
2.3 Loads must be free of dirt or other contaminants that would contribute to
or cause deterioration of the material during transport or storage.
2.4 Materials susceptible to deterioration or damage from environmental
elements, such as electrostatic charges, must be protected by appropriate
means.
2.5 Material susceptible to damage by shock or vibration during transport or
handling must be protected by cushioning or equivalent.
2.6 Loads containing fragile or delicate materials must be so marked.
2.7 Any marking must be made with a dark color, waterproof, non-smearing
________________________________________________________________________________
CONTROLLED COPY if cover sheet is red or controlled number is listed
Page 1 of 5
23
*** Confidential Treatment Granted
OUTSIDE MANUFACTURING SPECIFICATION NUMBER: ***
AT&T NETWORK CABLE SYSTEMS ISSUE NUMBER: ***
ATLANTA WORKS ISSUE DATE: ***
ink, and be clear, legible, and as large as space permits.
3.0 HEAVY METALS CONTENT OF PACKAGING
---------------------------------
3.1 Supplier warrants to AT&T that no lead, cadmium, mercury, or hexavalent
chromium have been intentionally added to any packaging or packaging
component to be provided to AT&T.
3.2 Supplier further warrants to AT&T that the sum of the concentration
levels of lead, cadmium, mercury and hexavalent chromium in the
packaging or packaging component provided to AT&T does not exceed 100
parts per million.
3.3 Upon request, Supplier shall provide to AT&T Certificates of Compliance
certifying that the packaging and/or packaging components provided are
in compliance with the requirements set forth in Sections 3.1 and 3.2
above.
3.4 Supplier shall indemnify and hold AT&T harmless for any liability, fine,
or penalty incurred by AT&T to any third party or governmental agency
arising out of AT&T's good faith reliance upon said warrantees or any
Certificates of Compliance provided by Supplier.
3.5 The term "packaging" means a container providing a means of marketing,
protecting, or handling a product. It includes a unit package, an
intermediate package and a shipping container. "Packaging" also means
and includes, but is not limited to, such unsealed receptacles as
carrying cases, crates, cups, pails, rigid foil and other trays,
wrappers and wrapping film, bags and tubs.
3.6 The term "packaging component" includes any individual assembled part of
a package such as, but not limited to, any interior or exterior blocking,
bracing, cushioning, weatherproofing, exterior strapping, coatings,
closures, labels, inks, dyes, pigments, adhesives or any other additives.
4.0 TYPES OF PACKAGES
-----------------
4.1 Unit Package - the first tie, wrap, or container applied to an
individual item, a quantity of the same item, or an item with all its
component parts, that constitutes a complete and identifiable package.
Where specific quantities are desired per unit package, those quantities
will be specified in supplementary information. A unit package must
contain the contents, prevent damage to the material, and allow handling
and storage. When the unit package is also the shipping package/
container, it must also comply with the shipping package/container
requirements.
________________________________________________________________________________
CONTROLLED COPY if cover sheet is red or controlled number is listed
Page 2 of 5
24
*** CONFIDENTIAL TREATMENT GRANTED
OUTSIDE MANUFACTURING SPECIFICATION NUMBER: ***
AT&T NETWORK CABLE SYSTEMS ISSUE NUMBER: ***
ATLANTA WORKS ISSUE DATE: ***
4.2 Intermediate Package - a wrap, box, or bundle that contains two or more
unit packages of identical items. Intermediate packing of unit packages is
acceptable, but not required. When the intermediate package is also the
shipping package/container, it must also comply with the shipping
package/container requirements.
4.3 Shipping Package/Container - final box, bundle, container, or unitized load
(see Section 6) that assembles a group of packages or items into a single
load which allows for handling as a unit throughout the distribution
system. The shipping package must comply with carrier regulations, provide
protection for the contents during transportation, and permit handling in
an economical manner. It should be fully loaded whenever possible and/or
have sufficient damage to fill voids, and immobilize the contents. Unless
stated otherwise in supplementary information, shipping packages over 60
pounds, or those which are large and awkward handling, must be palletized
or skidded to permit unloading and internal transport by materials handling
equipment.
Note: Shipping package/containers described above are not specifically
intended to include intermodal containers used on COFC or ocean shipments.
However, these containers are acceptable if the floors will accept lift
truck traffic and door heights are at least 53 inches.
5.0 MARKINGS
5.1 General - ink used must be a dark color, waterproof and non-smearing.
Information must be as large as space permits, legible, clear, and in the
English language (shipping package information can be accompanied by a
translation to another language). Location must be in a visible spot and in
an area that will not be removed or torn away when the package is opened.
Exceptions such as no markings or additional markings will be specified in
supplementary information. See also Section 2 for regulatory and other
markings.
5.2 Unit Package - unless otherwise specified, minimum markings must be: a)
description of material; b) quantity and unit of measure; and c)
manufacturer's name, trademark, or logo. When the unit package is also the
shipping package/container, it must also comply with the shipping package
container requirements.
5.3 Intermediate Package - unless otherwise specified, minimum markings must
be: a) description of material; b) quantity and unit of measure; and c)
manufacturer's name, trademark, or logo. When the intermediate package is
also the shipping package/container, it must also comply with the shipping
package/container requirements.
________________________________________________________________________________
CONTROLLED COPY if cover sheet is red or controlled number is listed
Page 3 of 5
25
*** CONFIDENTIAL TREATMENT GRANTED
OUTSIDE MANUFACTURING SPECIFICATION NUMBER: ***
AT&T NETWORK CABLE SYSTEMS ISSUE NUMBER: ***
ATLANTA WORKS ISSUE DATE: ***
5.4 Shipment Package/Container - minimum markings must be: a) ship to name
and address; b) ship from name and address; c) AT&T purchase order
number and item number if more that one item number is on purchase
order. Any regulatory or precautionary markings or labels required for
shipping must also be included. When the shipping package is also a
unitized load of the same material, the unitized label is also required
(duplicate markings are not required). When all shipping packages are
unitized loads and are part of a truckload shipment covered by a
shipping paper or transport document, "ship to" and "from" markings may
be those as specified by carrier regulations.
6.0 UNITIZED LOADS OF SAME MATERIAL
-------------------------------
6.1 Loads received must be capable of being handled by lift truck with
standard pallet forks or pallet jack.
6.2 Shipments must be a unitized load on pallet/skid, secured with minimum of
two straps, maximum 42" length x 42" wide x 40" high including pallet/
skid with maximum gross weight of 3500 pounds, or 46" high with maximum
gross weight of 3000 pounds. Shrink or stretch wrap is only acceptable
if wrap is "open" on top of load (sleeve wrap) allowing prewetting by
sprinklers. Each load must be identified (as minimum) with ID label on
fork entry side stating: a) AT&T Purchase order number and item number
if more than one item number is on purchase order, b) Part number (AT&T
9 digit code), c) quantity and unit of measure, d) ship date,
e) supplier's name, trademark, or logo.
6.3 Maximum pallet or skid size is 42" x 42" with minimum 3 1/2" entry for
forks or pallet jack. Pallet can be smaller that 42" x 42" if load is
smaller. Maximum load overhang desired on 42" x 42" pallet is zero,
however, can accept length (dimension parallel to stringer or depth into
rack) of up to 42 1/2" including any protective covering, etc., if
supplier can guarantee that unitized load will not drift out of vertical
plumb by more than 1/4" during transport by highway and handling by lift
truck. Width (dimension parallel to top deckboards of left to right
dimension in rack) of load can be up to 42" including any protective
covering, etc., if supplier can guarantee that load will not drift out
of vertical plumb by more than 1/2" during transport by highway or
handling by lift truck.
7.0 MIXED LOADS ON PALLETS/SKID
---------------------------
7.1 Loads received must be capable of being handled by lift truck with
standard pallet forks or pallet jack.
________________________________________________________________________________
CONTROLLED COPY if cover sheet is red or controlled number is listed
Page 4 of 5
26
*** CONFIDENTIAL TREATMENT GRANTED
OUTSIDE MANUFACTURING SPECIFICATION NUMBER: ***
AT&T NETWORK CABLE SYSTEMS ISSUE NUMBER: ***
ATLANTA WORKS ISSUE DATE: ***
7.2 Mixed loads of several materials on one pallet are not stored in the pallet
rack facility. While a 42" x 42" pallet/skid is desired for mixed loads,
any size is acceptable providing it permits handling by lift truck or
pallet jack and withstands the rigors of the transportation mode. Minimum
fork entry height is 1 1/2 inches. Maximum gross weight is 3,500 pounds.
7.3 The load itself on the pallet/skid must be marked with the "ship to" and
"from" markings as specified by carrier regulations. As a minimum, each
package must be marked with: a) AT&T purchase order number and item number
if more than one item number is on purchase order. If more than one package
is used for each purchase order number, number packages as 1 of x, 2 of x,
etc. If the package is also the unit package, it must also comply with the
marking requirements for the unit package.
8.0 PACKING SLIP
------------
8.1 Packing slips, when attached to outside of packages, must be placed inside
a weather resistant envelope. On truckload shipments, the package with the
packing slip should be next to the door expected to be opened first.
8.2 Information on the packing slip must (as a minimum) include: a) ship to
name and address, b) supplier name and address, c) AT&T purchase order
number and item number if more than one item is on purchase order, and for
each item, d) part number (AT&T 9 digit code), e) quantity and unit of
measure ordered as well as that delivered.
________________________________________________________________________________
CONTROLLED COPY if cover sheet is red or controlled number is listed
Page 5 of 5
27
LAK412D
1DB111580 Attachment C
NON-DISCLOSURE AGREEMENT
THIS AGREEMENT is made and entered into effective 10/21/1992, by and between
SPECTRAN CORPORATION, a Delaware corporation, with offices located at
50 Hall Road Sturbridge, MA. 01566, and AMERICAN TELEPHONE AND TELEGRAPH
COMPANY, a New York corporation, with offices located at 32 Avenue of the
Americas, New York, New York 10013-2412 ("AT&T"), for itself and its
affiliated companies.
WHEREAS, both parties, for their mutual benefit, desire to disclose to the
other certain specifications, designs, plans, drawings, software, data,
prototypes, or other business and/or technical information related to the
manufacturing and inspection of optical fiber and optical fiber preforms
("INFORMATION") which is proprietary to the disclosing party or its
affiliated companies.
NOW, THEREFORE, the parties agree as follows:
1. The receiving party, for 5 years after the disclosure of such INFORMATION,
shall hold such INFORMATION in confidence, shall use such INFORMATION only
for the purpose of the Corporation's preparation and AT&T's evaluation of
a proposal for potential business arrangements between the Corporation and
AT&T regarding the manufacturing and inspection of optical fiber and optical
fiber preforms, shall reproduce such INFORMATION only to the extent
necessary for such purpose, shall restrict disclosure of such INFORMATION
to its employees (and in the case of AT&T, employees of its affiliated
companies) with a need to know (and advise such employees of the obligations
assumed herein), and shall not disclose such INFORMATION to any third party
without prior written approval of the other party.
Each party agrees to protect such INFORMATION disclosed to it by the other
party with at least the same degree of care as it normally exercises to
protect its own proprietary information of a similar nature.
These restrictions on the use or disclosure of INFORMATION shall not apply
to any INFORMATION:
i. which is independently developed by the receiving party or its
affiliated company or lawfully received free of restriction from
another source having the right to so furnish such INFORMATION; or
28
-2-
ii after it has become generally available to the public without breach of
this Agreement by the receiving party or its affiliated company; or
iii which at the time of disclosure to the receiving party was known to
such party or its affiliated company free of restriction as evidenced
by documentation in such party's possession; or
iv which the disclosing party agrees in writing is free of such
restrictions.
2. INFORMATION shall be subject to the restrictions of paragraph 1, if it is
in writing or other tangible form, only if clearly marked as proprietary
when disclosed to the receiving party or, if not in tangible form, only if
summarized in a writing so marked and delivered to the receiving party
within thirty (30) days of such disclosure, in which case the INFORMATION
contained in such summary (not information contained solely in the
non-tangible disclosure) shall be subject to the restrictions herein.
Each party hereto shall endeavor to keep to a minimum the amount of
INFORMATION that is furnished to the other upon which restrictions are
imposed.
Information, other than proprietary INFORMATION identified as provided
above, shall not be subject to any restriction by the transmitting party as
to the receiving party's disclosure or use thereof.
3. No license to a party, under any trademark, patent, copyright, mask work
protection right or any other intellectual property right, is either
granted or implied by the conveying of INFORMATION to such party. None of
the INFORMATION which may be disclosed or exchanged by the parties shall
constitute any representation, warranty, assurance, guarantee or inducement
by either party to the other of any kind, and, in particular, with
respect to the non-infringement of trademarks, patents, copyrights, mask
work protection rights or any other intellectual property rights, or other
rights of third persons or of either party.
4. Neither this Agreement nor the disclosure or receipt of INFORMATION shall
constitute or imply any promise or intention to make any purchase of
products or services by either party or its affiliated companies or any
commitment by either party or its affiliated companies with respect to the
present or future marketing of any product or service.
5. All INFORMATION shall remain the property of the transmitting party and
shall be returned upon written request or upon the receiving party's
determination that it no longer has a need for such INFORMATION.
29
-3-
6. Each party hereby assures the other that it does not intend to and
will not knowingly, without the prior written consent, if required, of the
Office of Export Administration of the U. S. Department of Commerce, P.O.
Box 273, Washington, D.C. 20044, transmit directly or indirectly:
I. any information received from the other hereunder; or
II. any immediate product (including processes and services) produced
directly by the use of such information; or
III. any commodity produced by such immediate product if the immediate
product of such information is a plant or a major component of a
plant;
to (1) Iraq, Afghanistan, the People's Republic of China or any Group Q,
S, W, Y or Z country specified in Supplement No. 1 to Part 770 of the
Export Administration Regulations issued by the U.S. Department of
Commerce or (2) any citizen or resident of any of the aforementioned
countries.
Each party agrees that it will not, without the prior written consent of
the other, transmit, directly or indirectly, the INFORMATION received from
the other hereunder or any portion thereof to any country outside of the
United States.
7. Each party agrees that all of its obligations undertaken herein as a
receiving party shall survive and continue after any termination of this
Agreement.
8. This Agreement constitutes the entire understanding between the parties
hereto as to the INFORMATION and merges all prior discussions between them
relating thereto.
9. No amendment or modification of this Agreement shall be valid or binding
on the parties unless made in writing and signed on behalf of each of the
parties by their respective duly authorized officers or representatives.
10. The parties are familiar with the principles of New York commercial law,
and desire and agree that the law of New York shall apply in any dispute
arising with respect to this agreement.
30
-4-
IN WITNESS WHEREOF, the parties have executed this Agreement on the respective
dates entered below.
AMERICAN TELEPHONE AND SPECTRAN CORPORATION
TELEGRAPH COMPANY
By: /s/J. F. Watson By: /s/C. L. Cutts
-------------------------- --------------------------
(Signature) (Signature)
J. F. Watson Crawford L. Cutts
- ------------------------------ ------------------------------
(Name) (Name)
Manager, Optical Fiber &
Cable Manufacturing and
Maintenance V.P. - Business Development
- ------------------------------ ------------------------------
(Title) (Title)
October 21, 1992 November 4, 1992
- ------------------------------ ------------------------------
(Date Signed) (Date Signed)