MASTER CUSTOMER AGREEMENT Clarent® Softswitch Products THIS MASTER CUSTOMER AGREEMENT (the “Agreement”), dated as of _____________, 200_ (the “Effective Date”), is entered into by and between VERSO TECHNOLOGIES, INC., a Minnesota corporation with offices at 400 Galleria Parkway, Suite 300, Atlanta, Georgia 30339, USA (“Verso”), and ______________________, a ____________ corporation with principal offices at the address specified on the signature page hereto (“Customer”). WHEREAS, Verso provides telephony and IP hardware and software products and related services; WHEREAS, Customer desires to order certain of these products and related services from time to time; WHEREAS, the parties desire to set forth the terms under which Verso is prepared to sell to Customer and Customer is prepared to purchase from Verso for any such orders. NOW, THEREFORE, in consideration of the mutual promises contained herein, the parties agree as follows: 1. DEFINITIONS 1.1 “End User” means a person or entity that acquires one or more Products for its own internal use, and not for resale, remarketing, lease, loan or redistribution. A service provider that acquires Products for its own internal use for the purpose of providing telecommunications services to its own customers will be considered to be an “End User” within the meaning of this Agreement. 1.2 “General Terms of Sale” means the terms and conditions pursuant to which Verso sells products to Customer set forth in the Product Exhibit. 1.3 “List Price” shall mean Verso's established applicable suggested list price for a single unit of a Product as specified in the Price List at the time Verso receives an Order from Customer. 1.4 “Order” means a written purchase order pursuant to which Customer orders Products. 1.5 “Price List” means the Product price information applicable to Customer as set forth in the Product Exhibit. 1.6 “Product Exhibit” means the exhibit attached hereto as Exhibit A which is incorporated herein by reference. Customer acknowledges and agrees that Verso may modify the Product Exhibit at its discretion from time to time effective thirty (30) days after Verso gives Customer written notice of such modification. 2 1.7 “Products” shall mean the Verso hardware products, the Software, and related services that Customer is authorized to purchase as set forth in the Product Exhibit. 1.8 “Software” means Products consisting of the proprietary software owned or licensed by Verso, in executable form only, along with its related documentation. 1.9 “Standard RMA Procedures” means the terms and conditions pursuant to which Verso generally accepts product returns as set forth in the Product Exhibit. 2. DELIVERY 2.1 Scope of Available Products. During the term of this Agreement, Customer may order Products from Verso only for Customer’s application as an End User and not for resale. 2.2 Ordering. Customer may order Products as permitted under this Agreement by submitting an Order to Verso. Notwithstanding anything to the contrary in an Order, each Order is subject to and governed by the General Terms of Sale. In the event of any conflict between this Agreement and the General Terms of Sale, the General Terms of Sale shall govern. Orders for professional services from Verso are subject Verso’s professional service terms. 2.3 Product Pricing 2.3.1 Customer Discount. Customer agrees that during the term of this Agreement any purchase of Products it makes will be at a price equal to (a) the List Price for the corresponding Product, discounted by (b) the applicable discount rate (the “Customer Discount”) set forth in the Product Exhibit. 2.3.2 Changes to Price List and/or Customer Discount. Verso may amend the Price List and or Customer Discount for some or all Products from time to time in its sole discretion as provided in Section 1.6. The amended Price List and/or Customer Discount shall apply to all orders received by Verso thirty (30) days after notification of Customer. 3. TERM AND TERMINATION 3.1 Term. This Agreement shall become effective on the Effective Date and shall continue indefinitely thereafter; provided, that either party may terminate this Agreement on not less than thirty (30) days advance written notice at any time. Any such termination shall only be effective as to new Orders and shall have no effect with respect to Orders placed before the termination date. Verso is not entitled to damages if Customer fails to order any Product under this Agreement. Customer is not entitled to damages if Verso refuses any order, changes pricing or discounts or terminates this Agreement. 4. MISCELLANEOUS 4.1 Independent Contractors. Each party hereto is an independent contractor of the other and neither shall be deemed an employee, agent, partner or joint venture of the other. 3 Neither party shall make any commitment, by contract or otherwise, binding upon the other or represent that it has any authority to do so. 4.2 Assignment. Neither this Agreement nor any right or duty under this Agreement may be assigned or delegated by Customer, by operation of law or otherwise, without the prior written consent of Verso, which may be withheld in its sole and absolute discretion, and any attempted assignment and delegation without such consent shall be void and without effect. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective representatives, heirs, administrators, successors and permitted assigns except as otherwise provided herein. 4.3 Notices. Any and all notices or other communications required or permitted by this Agreement or by law to be served on or given to either party hereto by the other party shall, unless otherwise provided, be in writing and shall be deemed duly served and given when personally delivered to either of the parties to whom it is directed, or in lieu of such personal service, (a) on the same day of transmission by confirmed facsimile, (b) seven (7) days after deposit in the mail, first class air mail postage prepaid, or (c) two (2) business days after being sent by express courier, addressed to the respective addresses set forth on the signature page to this Agreement or such updated addresses as the parties may indicate in writing from time to time. In addition, Verso may provide notice to Customer by email to the Customer email address specified on the signature page hereto. 4.4 Language. This Agreement, and the exhibits hereto, are prepared and executed in the English language only, which language shall be controlling in all respects. Any translations of this Agreement into any other language are for reference only and shall have no legal or other effect. Any notice, which is required or permitted to be given by one party to the other under this Agreement, shall be in the English language and shall be in writing. 4.5 No Waiver. Any waiver (express or implied) by either party of any breach of this Agreement shall not constitute a waiver of any other or subsequent breach. No provision of the Agreement shall be waived by any act, omission or knowledge of a party or its agents or employees except by an instrument in writing expressly waiving such provision and signed by a duly authorized officer of the waiving party. 4.6 Compliance with Laws. Customer shall obey all applicable laws and regulations in the performance of its duties and tasks under this Agreement. Customer shall indemnify, defend, and hold Verso harmless from and against any claims, liabilities, damages, losses, costs or expenses, including attorneys’ fees, incurred by Verso as a result of any failure to comply with all applicable laws. 4.7 Severability. In the event any provision of this Agreement is held to be invalid or unenforceable, the valid or enforceable portion thereof and the remaining provisions of this Agreement will remain in full force and effect. 4.8 Governing Law and Jurisdiction. This Agreement shall for all purposes be governed by and interpreted in accordance with the laws of the State of Georgia without giving 4 effect to any conflict of laws principles that require the application of the laws of a different state. The parties expressly agree that the United Nations Convention on the International Sale of Goods shall not apply to this Agreement. No action, regardless of form, arising out of this Agreement may be brought by Customer more than two (2) years after the cause of action has arisen. Any dispute arising out of or relating to this Agreement may be commenced in a federal court in Atlanta, Georgia or in state court in Fulton County, Georgia, and each party irrevocably submits to the jurisdiction and venue of such courts. Subject to the mutual agreement of the parties, any dispute arising out of or relating to this Agreement may be resolved by binding arbitration conducted by a panel of three (3) arbitrators to be held in Atlanta, Georgia under the Rules of Arbitration of the International Chamber of Commerce. Any such arbitration shall be conducted in the English language and the arbitrators will issue a final written, English-language opinion supporting their decision. The arbitrators will not have the authority to assess indirect, consequential, indirect or punitive damages. 4.9 Construction. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Unless otherwise provided, the term “including” as used herein shall mean “including without limitation.” 4.10 Entire Agreement. This Agreement (including its exhibits) constitutes the entire agreement of Verso and Customer with regard to the subject matter hereof and supersedes all prior and contemporaneous negotiations, statements and agreements, whether written or oral. No prior or contemporaneous representation or warranty related to the subject matter hereof shall be deemed effective or part of this Agreement, except when made in writing and signed by a duly authorized representative of the respective party. This Agreement may be amended only by a written document executed by duly authorized representatives of Verso and Customer. No amendment or modification of this Agreement or an Order or waiver thereof shall be binding upon Verso unless approved by Verso in writing. ANY OF THE TERMS AND PROVISIONS OF CUSTOMER'S PURCHASE ORDER OR OTHER DOCUMENTS WHICH ARE DIFFERENT FROM, IN ADDITION TO, OR INCONSISTENT WITH CONDITIONS HEREOF OR WHICH CREATE ADDITIONAL OBLIGATIONS ON VERSO ARE REJECTED AND SHALL NOT BE BINDING ON VERSO. 4.11 Counterparts; Facsimile Signatures. This Agreement, and any amendment or waiver of the terms hereof, may be signed in counterparts, each of which will constitute an original and all of which together shall constitute one and the same instrument. Any signature may be delivered by facsimile, which shall have the effect of an original signature. 5 IN WITNESS WHEREOF, the parties have caused this Master Customer Agreement to be executed and delivered effective as of the Effective Date. CUSTOMER By: Name: Title: Date: Address: ________________________ ________________________ ________________________ Attention: ________________ Phone: ___________________________ Fax: _____________________________ e-mail: ___________________________ VERSO CORPORATION By: Name: Title: _________________________________ Date: Address: Verso Technologies, Inc. 400 Galleria Parkway, Suite 300 Atlanta, GA 30339 USA Attention: Chief Financial Officer Phone: +1-678-589-3500 Fax: +1-678-589-3750 Exhibit A: Product Exhibit Version dated April 16, 2003 A-1 EXHIBIT A TO MASTER CUSTOMER AGREEMENT PRODUCT EXHIBIT 1. PRODUCTS. Customer is authorized to purchase all of the Products on the Price List with the exception of the following: [None unless listed here]. 2. PRICE LIST. The initial Price List is attached as Appendix A to this Product Exhibit. 3. GENERAL TERMS OF SALE. These General Terms of Sale (“Terms”) govern all sales by Verso to Customer under the Master Customer Agreement (the “Agreement”). Capitalized terms referenced but not defined herein shall have the meaning ascribed to them in the Agreement. 3.1 Orders. All Orders shall reference the Agreement but shall be subject to this Agreement whether or not such reference is made. All Orders shall state at a minimum, the quantities of Products ordered, the requested shipment date, and the shipment destination and requested shipment instructions. All Orders are subject to acceptance by Verso in its sole discretion. Orders cannot be canceled or rescheduled by Customer, in whole or in part, once accepted by Verso. Any terms or conditions contained in Orders shall be without legal effect and are hereby expressly rejected, irrespective of whether Verso accepts such Order or fails to notify Customer of such rejection unless Verso expressly accepts such terms in a written document signed by Verso that specifically refers to the acceptance of such terms. Verso reserves the right to cancel any accepted Order from Customer or to refuse or delay its shipment if Customer (a) fails to timely make any payment to Verso, (b) fails to meet reasonable credit or financial requirements established by Verso (which may be revised from time to time by Verso), or (c) otherwise fails to comply with these Terms or the Agreement. The foregoing shall in no way limit any other remedy available to Verso. 3.2 Shipment; Mis-Shipment Returns. Shipping dates will be established by Verso upon its acceptance of the Order. Verso will use commercially reasonable efforts to (a) assign shipping dates as close as practicable to Customer’s requested shipment date; and (b) meet shipping dates, but shall not be liable to Customer in any way for any late shipment, error in filling any Orders for any reason, or failure to give notice of any delay or error unless due to the gross negligence of Verso. Verso may make partial shipments in its sole discretion and may invoice Customer upon such shipments. All shipments of Products shall be FCA (Incoterms 2000) shipping point, freight and insurance prepaid and billed to Customer. Verso will use commercially reasonable efforts to comply with Customer’s specific shipping instructions; however, if Customer’s designated carrier fails to promptly accept the delivery of goods when notified by Verso, Verso may tender shipment to an alternative carrier. Absent specific instructions from Customer in selecting a carrier, Verso shall exercise its own discretion in A-2 selecting a carrier. Risk of loss of, and title to, hardware Products shall pass to Customer and delivery will have been deemed to have occurred upon delivery to the carrier. Customer is entitled to inspect any assembled shipment prior to shipment by Verso upon reasonable advance notice. Except as provided in the express warranty set forth in Section 3.4 below, after a Product is delivered to Customer, Customer may only return or reject the Product (whether in whole or in part) if the return or rejection is due to a Verso shipping or orderproceessin error that is reported by Customer to Verso no later than five (5) days after Customer’s receipt of the shipment. Verso will promptly respond to any mis-shipment with replacement product as soon as available. Customer will comply with Verso’s Standard RMA Procedures set forth in this Product Exhibit in connection with any permitted mis-shipment returns and Verso will credit or reimburse Customer for any reasonable return shipping costs incurred in connection therewith. 3.3 Payment. Verso invoices upon shipment and payment is due upon invoice. Subject to Customer’s available credit limit, the terms of payment are net thirty (30) days from the invoice date. If Verso determines that Customer is not eligible for credit, then Verso may require Customer to make payment in advance or provide a letter of credit in form acceptable to Verso for the purchase amount. Customer shall not apply any offsets or credits against invoiced amounts without Verso’s prior written approval. Verso is entitled to recover its costs of collection of any overdue invoice, including costs of any proceeding or lawsuit for collection brought by Verso and any costs, including attorneys’ fees, costs and fees on appeal and costs of collection of judgment. For any amount that is past due, Customer shall pay to Verso a late charge equal to one and one-half percent (1½%) per month (or the maximum legal rate in effect, whichever is less) of all outstanding amounts, accruing from the due date until final payment. The foregoing shall in no way limit any other remedy available to Verso. 3.4 Limited Warranty Software: Verso warrants to Customer that for a period of ninety (90) days (the “Software Warranty Period”) beginning upon the date of shipment, the Software will substantially conform to its associated documentation when used in a computing environment (including on computer hardware and with operating systems) specified as “compatible” in the documentation. Verso’s sole and exclusive obligation, and Customer’s sole and exclusive remedy, for breach of the foregoing warranty shall be, at Verso’s option, to (a) correct any reproducible error in the Software; (b) replace the Software with a substantially equivalent substitute that conforms to the warranty set forth above; or (c) refund to Customer the fees actually paid by Customer to Verso for the non-conforming Software. Hardware: Verso warrants to Customer that for a period of twelve (12) months (the “Hardware Warranty Period”) beginning upon the date of shipment, the Hardware, when used in accordance with the documentation provided by Verso, shall be free of manufacturing defects in materials or workmanship. Verso’s sole and exclusive obligation, and Customer’s sole and exclusive remedy, for breach of the foregoing warranty shall be, at Verso’s option, to (a) repair any Hardware so that it conforms to the foregoing warranty; (b) replace the Hardware with a A-3 conforming replacement; or (c) refund to Customer the fees actually paid by Customer to Verso for the nonconforming Product, less a reasonable charge for past beneficial use calculated on a straight-line basis over a deemed useful service life of three (3) years. Any replacement provided to Customer shall be warranted for the remainder of the original Hardware Warranty Period or thirty (30) days, whichever is longer, and may consist of new or refurbished product. This warranty does not apply to any Hardware that has been damaged, altered or repaired or used outside of its specifications (including operating, storage or shipping conditions). In order to receive any remedies under this warranty, Customer must ship the non-conforming Hardware to Verso in compliance with Verso’s Standard RMA Procedures set forth in the Product Exhibit. Customer shall bear the cost of freight and insurance of returned Products, and Verso shall bear the cost of freight and insurance of repaired Products. All returned Products shall be in the original, or substantially similar, packaging and container and shall conspicuously display a valid RMA number. Service: Verso provides no warranties under these Terms for Products that consist of services, including installation services and professional services. Professional services shall be warranted exclusively in accordance with Verso’s standard professional service terms. Support and maintenance, shall be warranted exclusively in accordance with the applicable support and maintenance agreement. In the event that the legally mandated minimum warranty in a particular jurisdiction exceeds the warranty provided in this Section in any respect, then Verso shall be entitled to assess a reasonable supplemental warranty surcharge to the price of the Product for the additional warranty coverage to be provided THE EXPRESS WARRANTIES IN THIS SECTION ARE IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE PRODUCTS INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINNGEMEN OF THIRD-PARTY RIGHTS, QUIET ENJOYMENT, AND ACCURACY. NEITHER VERSO NOR ITS SUPPLIER REPRESENT OR WARRANT THAT THE OPERATION OF THE PRODUCTS (INCLUDING THE SOFTWARE) WILL BE UNINTERRUPTED OR ERROR-FREE. CUSTOMER ACKNOWLEDGES THAT IT HAS RELIED ON NO WARRANTIES OTHER THAN THE EXPRESS WARRANTIES IN THIS SECTION AND THAT NO WARRANTIES ARE MADE BY VERSO OR ANY OF ITS SUPPLIERS. The warranties set forth in this Section are personal to Customer and are not transferable. Some jurisdictions do not allow the disclaimer of implied warranties, so the above disclaimer of implied warranties may not apply to Customer. In that case, the duration of the implied warranties is sixty (60) days from when the Product is received by Customer. 3.5 LIMITATION OF LIABILITY. IN NO EVENT WILL VERSO OR ITS SUPPLIERS BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL, A-4 CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS) ARISING UNDER THE AGREEMENT, THESE TERMS, ANY ORDER OR IN CONNECTION WITH THE PRODUCT REGARDLESS OF THE FORM OF ACTION GIVING RISE TO SUCH DAMAGES (WHETHER IN CONTRACT, TORT, OR OTHERWISE), EVEN IF VERSO OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES ARE FORESEEABLE. VERSO’S TOTAL AGGREGATE LIABILITY IN CONNECTION WITH THE AGREEMENT, THESE TERMS, AN ORDER AND THE PRODUCTS REGARDLESS OF THE FORM OF ACTION GIVING RISE TO SUCH LIABILITY (WHETHER IN CONTRACT, TORT OR OTHERWISE), SHALL NOT EXCEED THE ORIGINAL COST TO CUSTOMER OF THE SPECIFIC PRODUCT, PRO-RATED ON A MONTHLY BASIS OVER THE SIXTY (60) MONTH PERIOD BEGINNING ON ITS INSTALLATION DATE. THE BUYER AGREES THAT SECTIONS 3.4 AND 3.5 SHALL BE ENFORCEABLE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND ARE FUNDAMENTAL PARTS OF THE BASIS OF VERSO’S BARGAIN HEREUNDER, AND VERSO WOULD NOT BE ABLE TO PROVIDE THE PRODUCT TO CUSTOMER ABSENT SUCH LIMITATIONS. "DAMAGES" AS USED IN THESE TERMS MEANS CLAIMS, LIABILITIES, DAMAGES, LOSSES AND EXPENSES OF ANY KIND. NEITHER VERSO NOR ITS SUPPLIERS SHALL BE LIABLE FOR ANY THIRD PARTY CLAIMS RELATING TO THE PRODUCTS AND CUSTOMER AGREES TO INDEMNIFY, DEFEND AND HOLD VERSO AND ITS SUPPLIERS HARMLESS AGAINST ANY SUCH CLAIMS OR DAMAGES RELATED THERETO. 3.6 Software License. The Software is licensed, not sold, to Customer, and is provided in object code form only. Subject to these Terms, Verso hereby grants to Customer a personal, non-transferable, non-exclusive license to use the object code of the Software described in the Order solely for Customer’s own internal business purposes (or the provision of telecommunication services to Customer’s direct customers) in accordance with the documentation, in the country in which Customer acquired the Software, and only on the computer on which the Software is first installed (or a similar replacement unit) (the “License”). UNLESS OTHERWISE PROVIDED, EACH COPY OF THE SOFTWARE MAY BE USED ONLY ON A SINGLE COMPUTER. NOTWITHSTANDING ANYTHING TO THE CONTRARY, THE LICENSE IS LIMITED TO CUSTOMER AND IS NONTRANSFEERRABLE Any attempted transfer of the Software in violation of this restriction will be void. Customer shall not (nor shall Customer permit any third party to): (i) use the Software to manage, use or control telephony resources in excess of those for which Customer have validly acquired the right to do so (e.g. the maximum number of “ports”, “spans” or other measures for which a valid and accepted Sales Order has been placed with Verso or its authorized resellers); (ii) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code of the Software; (iii) embed the Software, in whole or in part, within another product; (iv) modify, adapt, translate, copy, create derivative works of the Software; (v) distribute, sell or resell, assign, pledge, sublicense, lease, loan, rent, timeshare, use in a service bureau, assign, deliver or A-5 otherwise transfer the Software; and (vi) remove from the Software or alter any of the trademarks, trade names, logos, patent or copyright notices or markings, or add any other notices or markings to the Software. Customer may copy the Software solely for archival and back-up purposes or to replace a worn or defective copy. All copies of the Software and Product documentation including, without limitation, translations, compilations, or partial copies, are the proprietary property and confidential information of Verso and may not be used or disclosed except as permitted by these Terms. Customer shall not disclose, provide or otherwise make available the Software or Product documentation or any part or copies thereof to any person other than employees of the Customer who have a legitimate need to know. Customer shall take all appropriate actions necessary to extend Customer's confidentiality obligations under these Terms to any person permitted access to the Software or Product documentation. All right, title and interest to, and all applicable rights in patents, copyrights, trademarks, trade names and trade secrets and other proprietary rights relating to or in the Software or any of its parts shall remain solely vested in Verso or its suppliers. The License is strictly limited to its express terms and Verso reserves any rights in the Software not explicitly granted to Customer. Any use of the Software outside the scope of the License will be deemed to be a material breach of these Terms. 3.7 License Termination. Verso may terminate the License if (i) Customer breaches any of the provisions of these Terms or the Agreement and fails to cure such breach within fifteen (15) days after receipt of written notice thereof from Verso or (ii) if payment to Verso for Product is more than thirty (30) days past due. Customer agrees that upon expiration of the License, it will immediately return or destroy all copies of the Software of portions thereof and, if requested by Verso, will certify in writing to Verso the destruction or return of the Software and all copies thereof. Customer acknowledges that Products may contain features that would prevent the use of the Products without a valid license. Customer agrees that Verso may update, upgrade or revise its software products at any time and in doing so incurs no obligation to furnish the same to Customer under these Terms. Additional restrictions may apply if a new or updated version of the Software is provided to Customer. 3.8 Intellectual Property Infringement. Verso will defend any action brought by a third party against Customer to the extent that the action is based upon a claim that Product in its original manufactured form when used strictly in accordance with the Verso documentation and specifications infringes any U.S. patent, copyright or trademark or misappropriates any trade secret, and will pay those costs and damages finally awarded in any such action that are specifically attributable to such claim, provided that Verso is notified promptly in writing of the action, and at Verso's request and at its expense, is given control of such action and Customer provides all requested information and assistance to settle or defend the same. Verso may also, at its option, (a) obtain for Customer the right to continue to use the Product; (b) modify or replace the Product with non-infringing Product; or (c) require Customer to return the Product and upon its return refund the value of the Product as amortized over a presumed sixty (60) month depreciation period. Verso shall have no obligation to defend or A-6 indemnify Customer for any claims arising out of (i) combinations of the Product with other products not of Verso’s original manufacture or (ii) any use of the Product not in accordance with the documentation or these Terms. THE FOREGOING STATES THE SOLE AND EXCLUSIVE LIABILITY OF VERSO AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR CLAIMS AND ACTIONS RELATING TO OR ARISING OUT OF THE INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS AND IS IN LIEU OF ANY WARRANTY AGAINST INFRINGEMENT OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY. 3.9 Seller's Rights. Verso reserves the right to supply Product consisting, in whole or in part, of new components or, if necessary to meet Customer’s requested shipment date and otherwise not prohibited by terms expressly and conspicuously stated as a special term on the face of the Order, refurbished components that are warranted as new. To secure Customer’s obligations to Verso under these Terms, including Customer’s payment obligations, Customer hereby grants to Verso a first priority, purchase money security interest in the Products shipped to Customer under these Terms or any order and all proceeds thereof. Verso will have all rights and remedies available to a secured party under the applicable law governing the locations of Verso, Customer, and the Product, in addition to all other available rights and remedies of Verso. If Customer materially breaches any of these Terms or the Agreement, Verso shall have the right, in its sole discretion, to (i) suspend shipment of any pending orders, (ii) suspend the further provision of maintenance or other services to Customer, (iii) withhold any other performance due to Customer from Verso under any agreement. The foregoing shall in no way limit any other remedy available to Verso. 3.10 Customer Responsibilities. Customer is responsible for (i) providing all connections to and programming of equipment that interfaces with the Products and an Internet connection to enable maintenance and remote diagnostics by Verso; (ii) compliance with Product’s operating, storage and shipping documentation and (iii) obtaining all training and certifications necessary to use and operate the Products. Customer warrants that its acquisition and use of the Products will comply with all applicable laws (including applicable export control laws and regulations of the U.S. Government and any foreign government to which it exports such Products). Customer shall defend, indemnify and hold Verso and all Verso suppliers harmless from any claims or damages arising out of or related to its use of the Products. Customer shall defend, indemnify and hold Verso and all Verso suppliers harmless from any claims or damages arising out of or related to Customer’s breach of this warranty. Customer represents and warrants to its knowledge that it has not and will not, directly or indirectly, use Verso funds to pay for the Products or to procure the order. Customer acknowledges that Customer has no rights to return Products to Verso (except for those limited conditional return rights set forth in Section 3.2 (mis-shipments) and Section 3.4 (limited warranty)). A-7 3.11 Taxes. All prices set forth in these Terms or any Order are exclusive of any sales, use, valued added, excise, property or any other taxes imposed by any government applicable to sales, use, or delivery of the Products, including import duties and withholding taxes, now or hereafter enacted, all of which will be paid by Customer separately or added by Verso to the invoice where Verso is required by law to collect the same, unless Customer provides Verso with a proper exemption certificate. 3.12 Excusable Delays. Neither party shall be liable for any delay or failure of performance hereunder due solely to conditions beyond its reasonable control including, but not limited to: acts of God, fires, floods, wars, riots or sabotage, accidents, terrorism, strikes, freight embargoes or transportation delays, shortage of labor, or inability to secure transportation, material, equipment, or containers on account of shortages. In the event of interruption of Verso’s manufacture or shipment for reasons beyond Verso’s control, Verso may allocate production and shipment among its customers in a fair and reasonable manner. 3.13 U.S. Government End Users. The Software is a "commercial item" as that term is defined at 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Software with only those rights set forth therein. 3.14 Miscellaneous. All prices are in U.S. dollars unless otherwise indicated or apparent from the context. Signatures on documents may be in counterparts, which together constitute one and the same document. Signatures may be transmitted by facsimile and are deemed delivered when transmitted to the other party. 4. DISCOUNT SCHEDULE TO MASTER CUSTOMER AGREEMENT. All discounts will be applied as set forth in Section 2.3 of the Agreement. Discounts levels are based on the aggregate List Price of the total sale net of taxes, shipping, custom fees and other charges. Clarent Customer Discount Schedule Softswitch Products Total List Price of Sale Greater than $1,500,000 $750,000 to $1,500,000 $250,000 to $750,000 $100,000 to $250,000 Less than $100,000 Discount percentage Negotiable 32.5% 27.5% 22.5% 17.5% Clarent Softswitch Products covered by this discount schedule are: Clarent Command Center software and servers, Gatekeeper software and servers, CG1200 gateways, GC400 A-8 gateways, CG800 gateways, C7/SS7 in-gateway cards, Codec licenses, Connect and Roaming Software, Clarent Element Management System (CEMS) Software & Servers, Back-Bone High-Density Gateways (BHGs), Class 4 and 5 Call Managers (C4CM/C5CM) Software and Servers, Multipoint Signaling Server (MPSS) Software and Hardware, Announcement Server Software and Servers, and any other products expressly designated as Softswitch Products on the Price List. The Softswitch Products covered by this discount schedule do not include NetPerformer products. Other Discount Terms: The above discounts apply only to the products listed below the discount schedule and do not apply to any Clarent product or service offerings that are either (a) not expressly listed above or (b) listed on the Price List with a discount exception. Without limiting the foregoing, Customer acknowledges and agrees that all Clarent services, including support services, professional services, training, education or consulting services, are not eligible for the foregoing discounts. 5. STANDARD RMA PROCEDURES. All requests for material returns should be directed to Clarent Technical Support where the team will review and process each request. The RMA team will verify warranty and support coverage prior to authorizing any RMA. 5.1 All customer returns should be initiated through technical support for problem resolution. Technical support will email the RMA form to Customer when an RMA is appropriate. Customer must return the completed RMA form to Verso for validation and processing. Verso will issue an RMA number for valid requests. No material should be sent to the receiving department prior to the completion of this form and authorization, via the RMA number from the Verso RMA team. 5.2 The RMA form can be used for all of the following situations: evaluation returns, internal order returns, customer/external returns, and customer failure analysis request. 6. STANDARD SUPPORT TERMS. Verso and Customer may enter into a separate support agreement in the form attached hereto as Appendix B pursuant to which Verso would provide support of the Products to Customer. Verso shall have no obligation to provide any support to Customer unless a support agreement is entered into between Verso and Customer. Appendices Appendix A: Price List Appendix B: Customer Support Agreement