EXHIBIT 10.17
------------
GENERAL EQUIPMENT - MASTER PURCHASE AGREEMENT
This Master Purchase Agreement (the "Agreement") is entered into
as of this _______day of ________, 1999 ("Effective Date"),
by and among
Metawave Communications
a Delaware Corporation with its principal place of business at
10735 Willows Road NE
Redmond, WA 98073-9769
("Supplier")
AND
"Customer," Airtouch Support Services, Inc., a Delaware corporation
and wholly-owned subsidiary of Airtouch Communications, Inc.,
on behalf of itself and any Affiliates, with a place of business at
255 Parkshore Drive, Folsom, California 95630
FOR
Spotlight 2000 Smart Antenna Products, Accessories & Supporting Equipment
PROPRIETARY INFORMATION
Not for use or disclosure outside
Customer and Supplier Except
under written agreement.
Confidential--Disclose and distribute solely to those individuals who have a
need to know.
[***] CERTAIN INFORMATION ON THIS PAGE(S) HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
TABLE OF CONTENTS
A. DEFINITIONS..................................................................................... 1
B. PURCHASE PROVISIONS............................................................................. 3
B.1 SCOPE OF AGREEMENT.............................................................................. 3
B.2 TERM OF AGREEMENT............................................................................... 3
B.3 ORDER OF PRECEDENCE............................................................................. 4
B.4 PRICES AND TERMS................................................................................ 4
B.5 ORDERING LEAD TIMES............................................................................. 5
B.6 DELIVERY, TRANSPORTATION AND SHIPPING........................................................... 5
B.7 WARRANTIES...................................................................................... 6
B.8 SPARE PARTS..................................................................................... 8
B.9 SOFTWARE SUPPORT SERVICES....................................................................... 9
B.10 DOCUMENTATION................................................................................... 9
B.11 PRODUCT SUPPORT................................................................................. 10
B.12 SPECIAL PROVISIONS.............................................................................. 11
B.13 DISASTER AVAILABILITY........................................................................... 11
C. GENERAL PROVISIONS.............................................................................. 11
C.1 DISPUTE RESOLUTION.............................................................................. 11
C.2 TAXES AND OTHER CHARGES......................................................................... 14
C.3 CHANGES REQUIRED TO MEET CODES, LAWS OR REGULATIONS............................................. 14
C.4 NOTICES......................................................................................... 14
C.5 YEAR 2000 DATE CHANGE WARRANTY.................................................................. 15
C.6 ENTIRE AGREEMENT................................................................................ 15
C.7 EXCEPTIONS...................................................................................... 16
C.8 COUNTERPARTS.................................................................................... 17
EXHIBIT A-- DOMESTIC PRODUCT AND PRICE LIST......................................................... 18
EXHIBIT B-- DISCOUNT SCHEDULE AND ORDER CONFIGURATION............................................... 19
EXHIBIT C-- SPECIFICATIONS.......................................................................... 20
EXHIBIT D-- WARRANTY................................................................................ 21
EXHIBIT E-- SOFTWARE LICENSE........................................................................ 22
EXHIBIT F-- VENDOR MONTHLY REPORT REQUIREMENTS......................................................
EXHIBIT G-- AFFILIATE AND SUBSIDIARY LIST........................................................... 24
EXHIBIT H-- MUTUAL NONDISCLOSURE.................................................................... 25
Exhibit I-- PRODUCT MAINTENANCE PROGRAM............................................................. 28
EXHIBIT J-- COMMISSIONING CERTIFICATE............................................................... 29
EXHIBIT K-- DIVISION OF RESPONSIBILITY.............................................................. 30
EXHIBIT XX-- TERMS AND CONDITIONS.................................................................... 31
EXHIBIT Y2K--COMPLIANCE CRITERIA... ................................................................. 32
Confidential--Disclose and distribute solely to those individuals who have a
need to know.
i
GENERAL EQUIPMENT - MASTER PURCHASE AGREEMENT
THIS AGREEMENT No. _____________ ("Agreement"), effective ______, 1999, is
between Metawave Communications, a Delaware corporation ("Supplier"), AND
"Customer," comprised of AirTouch Support Services, Inc., a Delaware corporation
and wholly-owned subsidiary of AirTouch Communications, Inc., on behalf of
itself and its Affiliates, with a place of business at 255 Parkshore Drive,
Folsom, California 95630.
Whereas, Supplier has offered to sell to AirTouch Support Services, Inc.,
Spotlight 2000 antenna products, accessories, and supporting equipment described
herein for installation and use in the United States at the discounts and prices
specified herein based upon the volume purchases during this term of this
Agreement that are committed by AirTouch Cellular;
Whereas, AirTouch Support Services, Inc., wishes to take advantage of the
discounts and prices on Products and related services offered by Supplier;
Now Therefore, in consideration of the mutual promises contained herein,
the parties hereto agree as follows:
A. DEFINITIONS
For the purposes of this Agreement, the following terms and all other terms
defined in this Agreement shall have the meanings so defined unless the context
clearly indicates otherwise. A term defined in the singular shall include the
plural and vice versa when the context so indicates.
"Actual Contract Volume" means the total number of Products purchased or
deemed to be purchased during the term of the Agreement by Customer and its
Affiliates hereunder.
"Affiliate" means any parent, U.S subsidiary or successor of AirTouch
Support Services, Inc., or any partnership, corporation or other entity
operating in the United States in which AirTouch Support Services, Inc., or a
parent, subsidiary or successor of Customer, directly or indirectly, owns at
least ten percent (10%) equity interest, or has at least ten percent (10%)
voting control.
"Anniversary" means the annual occurrence of the Effective Date of this
Agreement.
ConfidentiaL--Disclose and distribute solely to those individuals who have a
need to know.
1
"Commercial" refers to any Product intended for sale to wireless service
providers, produced with production tooling, regardless of production volume
levels.
"Commitment" means the agreed upon quantity of Products (i.e., CDMA
SpotLight Smart Antenna systems) to be ordered by Customer and installed by
Supplier during the period of time commencing on or before the Effective Date of
this Agreement and ending on or before June 30th, 2000.
"Customer" means AirTouch Support Services, Inc., acting in its individual
capacity and as a representative for its respective Affiliates and their
assigns, in accordance with the section titled "ASSIGNMENT."
"Effective Date" means the date of this Agreement as specified on the cover
sheet of this Contract.
"Information" means specifications, drawings, sketches, models, samples,
tools, computer programs, technical information, and other confidential business
information of, Supplier or Customer or personnel information or data, whether
written, oral or otherwise.
"Products" means equipment, components, devices, and accessories thereof
including documentation as well as it may include Services and a license to use
Software, as described in this Agreement, provided by Supplier hereunder to
Customer as described in Exhibit A, as the same may be modified, added or
discontinued upon written mutual agreement of the parties during the term of
this Agreement.
"Purchase Order" means each written order executed hereunder ordering
Products and Services which shall be deemed to incorporate (1) the provisions of
this Agreement (including the exhibits attached hereto), as it may from time to
time be amended, (2) the Specifications applicable to such Purchase Order, and
(3) any subordinate documents attached to or referenced in this Agreement or
such Purchase Order or Specifications, if agreed to in writing by both parties.
Each such Purchase Order shall be deemed to be a separate and independent
agreement between the parties with respect to the subject matter thereof.
"Required Delivery Date" means the date on which all Products on a Purchase
Order are to arrive at the location or locations specified on such Purchase
Order, if agreed to by Supplier.
"Services" means all services described in the applicable Purchase Order
and provided by Supplier hereunder to Customer including, but not limited to,
technical product support and repair services relating to the warranty
provisions set forth herein.
"Software" (if applicable for this agreement) shall mean all computer
programs, excluding source codes, consisting of a series of logical instructions
and tables of
Confidential--Disclose and distribute solely to those individuals who have a
need to know.
2
information which guide the functioning of a processor, contained in the
Products. Such programs may be contained in any medium whatsoever, including
Hardware containing a pattern of bits representing such program, but the term
Software does not mean or include such medium.
"Specifications" means (1) Supplier's published specifications, (2) the
equipment manufacturer's specifications (if Supplier is not the equipment
manufacturer), and (3) any other specifications for Products and Services agreed
to by the parties which are attached to or referenced in and made a part of the
applicable Purchase Order.
"Warranty" means the Products warranty provided pursuant to Section B.8.
"Warranty Period" means the period during which a Product is covered by
Supplier's warranties under the section entitled "WARRANTIES."
B. PURCHASE PROVISIONS
B.1 SCOPE OF AGREEMENT
This Agreement establishes the general terms and conditions under which
Customer may purchase Products from Supplier. The products, which means the
equipment, components, devices, accessories thereof including documentation as
well as it may include Services and a license to use Software as indicated in
the Agreement, all of which are manufactured, produced or performed by Seller or
procured by Seller from sub-sellers or sub-contractors. Exhibits A and B to this
Agreement contains the unit prices and discount schedules for the purchase
Commitment of [***] CDMA SpotLight systems to be supplied under this Agreement.
Customer may elect to purchase additional Products beyond the Commitment of
[***] systems and may purchase other Products from Supplier.
B.2 TERM OF AGREEMENT
Unless sooner terminated in accordance with the provisions of this
Agreement or extended by amendment, the initial term of this Agreement shall
commence on January 1, 1999, ("Effective Date"), and extend through December 31,
2000 unless amended by both parties in writing. Except as set forth in this
Agreement, the Termination of this Agreement shall not affect the obligations of
any party pursuant to any purchase commitments or any Purchase Orders previously
executed hereunder, and the terms and conditions of this Agreement shall
continue to apply to such Purchase Orders as if this Agreement had not been
Terminated. Customer shall pay Supplier for all work performed prior to the
effective date of Termination.
Confidential--Disclose and distribute solely to those individuals who have a
need to know.
3
B.3 ORDER OF PRECEDENCE
This Agreement supersedes all agreements, correspondence or statements,
whether oral or written, in whatever form made by either Party prior to the
effective date of the Agreement, except to the extent such documents are
incorporated into this Agreement in an Exhibit. In case of any discrepancies
between individual documents governing the relationship between the Parties, the
following order of precedence shall apply:
Highest priority to lowest priority:
. The Agreement
. Exhibits to the Agreement
. Change Orders
. Purchase Orders
. Exhibits to Purchase Orders
. Written correspondence between the Parties
B.4 PRICES AND TERMS
a. Price Increases. The list prices for Products which are set forth in
----------------
Exhibit A [***] are valid from the effective date of the Agreement through
December 31, 2000, subject to adjustment in accordance with the section entitled
"PRICE PROTECTION."
b. Volume Commitment. During the period of time commencing on or before
------------------
the Effective Date of this Agreement and ending on or before June 30, 2000,
Customer agrees to order from Supplier [***] CDMA SpotLight Smart Antenna
systems, as more fully described in Exhibit A, and Supplier hereby agrees to
provide and install such systems ordered by Customer within the above described
period of time. Provided that [***] no further action is required. In the event
that [***] Supplier and Customer agree to [***]. In the event that actual volume
of Customer's orders falls short of the [***] CDMA SpotLight Smart Antenna
systems, Customer will [***]
Confidential--Disclose and distribute solely to those individuals who have a
need to know.
4
B.5 ORDERING LEAD TIMES
CDMA Spotlight 2000 Smart Antenna systems ordered under the Contract
Volume Commitment of [***] systems will have a lead time of [***] days from
Supplier's acceptance of purchase order, unless otherwise confirmed by Supplier.
B.6 DELIVERY, TRANSPORTATION AND SHIPPING
a. All products shall be delivered F.O.B. destination. Subject to the
provisions of this section entitled "DELIVERY, TRANSPORTATION AND SHIPPING,"
Customer shall bear the transportation charges for each Product from Supplier's
United States location to Customer's designated location as set forth in the
Purchase Order, which may include, but not be limited to, Customer's or
Affiliate's warehouse. Supplier shall ship Products in accordance with
instructions, if any, from Customer with transportation charges prepaid by
Supplier. Supplier shall invoice Customer for any such transportation charges
required to be paid by Customer hereunder. Such prepaid charges shall be at
actual cost and added to and stated separately on the invoice for such Product.
If requested by Customer, Supplier shall provide legible copies of prepaid
freight bills, express receipts, or bills of lading supporting the invoice
amounts. Customer will have the option to arrange and pay for its own shipping.
b. Customer may request that Products purchased under a single Purchase
Order be shipped to [***] provided that Customer submits instructions regarding
multiple delivery in the Purchase Order or other written notice at least ten
(10) business days prior to the requested Shipment Date.
c. Supplier shall use the [***]. All containers shipped by Supplier shall
utilize the specifications, [***]. This standard addresses the transaction
label, which provides information for receiving shipments using bar code
technology. The transaction label should be affixed on final shipping
containers, boxes, cartons, pallets, cases, barrels, etc.. Customer requires bar
code labels to be on each product as well as shipping containers for inventory
management. Information on the bar codes shall be specified by Customer at a
later date.
d. Supplier shall, at its own expense, properly pack each Product in
accordance with Supplier's standard domestic packing practices, in connection
with the shipment of such Product to Customer's site. Payment for such
additional packing expenses shall be upon mutual agreement of the parties. If
such Product is returned to Supplier because of rejection in accordance with the
Exhibit XX section entitled "ACCEPTANCE" or cancellation pursuant to the
provisions of this Agreement, Supplier shall bear all
Confidential--Disclose and distribute solely to those individuals who have a
need to know.
5
transportation charges relating to the return of such Products. If Customer has
already paid Supplier for such charges, Supplier shall refund such payment to
Customer.
e. Unless Customer specifies the carrier, Supplier shall be responsible
for dealing with carriers to coordinate delivery of shipments, locating missing
or late shipments, resolving billing disputes for transportation charges, and
submitting and resolving all insurance claims arising from loss of or damage to
such shipments. If Customer chooses the carrier, Supplier's sole responsibility
shall be assisting Customer with any claims or issues against such carrier.
f. If Customer gives Supplier no fewer than [***] days advance
written notice of shipping delay, no storage charges shall apply for Customer
requested changes to delivery shipment dates up to [***] days requested
delay. This applies only to orders that Customer delays prior to shipment from
Supplier's location.
B.7 WARRANTIES
Seller represents and warrants that the following statements are true on
the date of execution of this Agreement and at all times during the term hereof,
except as may be expressly provided otherwise:
a. General Warranty of Quality. In addition to all other Warranties set
---------------------------
forth herein, Supplier warrants to Customer, for a period of [***] months,
commencing on either; (i) date of receipt by Customer (where Customer shall
perform the installation) or, (ii) completion by Supplier of installation and
commissioning and Product acceptance by Customer at Customer's site as defined
in Exhibit J, of a Product to Customer, that all Products purchased under this
Agreement will be safe for their intended purpose and will be free from defects
in design, material and workmanship and will conform to and perform in
accordance with Supplier's Specifications and other provisions under this
Agreement set forth in Exhibit C ("Specifications") and Supplier warranty set
forth in Exhibit D. All products shall be of the latest design for that
particular product or model as then currently produced and made generally
commercially available to customer by Supplier or its suppliers, unless
identified as otherwise. The Software provided by Supplier, if applicable for
this Agreement, shall perform the functions described in Exhibit E. Where
Supplier performs Installation Services, the workmanship shall conform with good
engineering practices and shall be accomplished in a workmanlike fashion.
Supplier shall be responsible for removing debris, packing material, waste,
etc., resulting from its work and shall leave the premises in a neat and orderly
fashion. Supplier warrants to Customer that all Services provided hereunder
shall be performed in a workmanlike manner and in accordance with applicable
Specifications. All warranties shall survive inspection, acceptance and payment.
In the event that a Customer purchases linear power amplifiers (LPA's)
directly from a third party supplier, and not from Metawave, such LPA's shall be
subject to the
Confidential--Disclose and distribute solely to those individuals who have a
need to know.
6
warranty given by the third party supplier. However, this separate warranty
shall not affect Supplier's warranty set forth above with respect to the
Products or to provide technical support for the Products as outlined in Section
B.11 of this Agreement.
b. Repair and Replacement by Supplier. For Products that fail to comply
----------------------------------
with the Initial Warranty, when the failure occurs prior to installation,
Supplier may, at Supplier's option, repair, replace or refund the full price at
no cost to Customer. For Products that fail to comply with the Initial
Warranty, when the failure occurs after installation of Product, in addition to
the remedy immediately set forth above, Supplier shall remove Product in breach
and replace or repair it. Supplier shall have the right to inspect suspected
defective Product prior to removal from site location to determine reason for
failure. Where replacement of Product not meeting the warranties is made
thereunder, replacement shall include, at Customer's option, expedited
deliveries at a mutually agreed charge to Customer. Supplier shall not be
responsible for defects in material or workmanship that would not have occurred
but for Customer's improper use of Product. Any warranty provided hereunder
does not extend to any Product or Service which has been misused, modified,
repaired, improperly installed or otherwise abused.
c. If Product does not comply with the foregoing warranty and Supplier has
not remedied or attempted to remedy such noncompliance as set forth in B.7 (a)
within a reasonable time (not to exceed [***] calendar days from Customer's
notice to Supplier of the nonconformity) or if [***] Customer can, at its
option, Terminate this Agreement and Commitments, or its Forecasts, and/or any
outstanding Purchase Orders for any other Products affected by such breach.
d. If a breach of warranty is determined to result from a manufacturing
problem that effects Product not yet in nonconformance with the warranty, the
parties shall negotiate in good faith to develop a replacement plan ("recall").
Supplier shall pay all of Customer's out-of-pocket costs, including but not
limited to, removal and installation costs for all Products still under warranty
associated with such recall if such recall is classified an "A" or "AC" change
as defined per BELLCORE document GR-209-CORE "GENERIC REQUIREMENTS FOR PRODUCT
CHANGE NOTICES."
e. Repair or Replacement by Customer. In the event that Supplier is
---------------------------------
unable to fulfill its undertakings under this Section B.7, Customer may, after
expiration of the notice periods as outlined under paragraph "c" of this Section
B.7, at the expense of Supplier, undertake the corrective measures itself. In
this event, Customer shall be entitled to either be reimbursed for the direct
costs related thereof, or to set off an amount corresponding to Customer's costs
for the corrective measures against any sums due to Supplier under this
Agreement. Customer will give Supplier [***] advance notice of its intention to
undertake corrective measures itself. In situations where time is of the essence
due to the nature of the fault, Customer will give Supplier [***] advance notice
of its intention to undertake corrective measures itself.
Confidential--Disclose and distribute solely to those individuals who have a
need to know.
7
f. Supplier represents and warrants that it has good title to Products and
the right to sell them to Customer free of any of the proprietary rights listed
in Exhibit XX section entitled "INTELLECTUAL PROPERTY INDEMNIFICATION," and upon
payment in full by Customer, such Products shall not be encumbered with any
security interest, lien or any other encumbrance whatever.
g. At the request of Customer, prior to the purchase of Products, Supplier
may provide Customer with optional extended warranty coverage for Products in
[***] as set forth in Exhibit I, at additional costs or discounts, as
applicable, from the full invoice price, as mutually agreed upon by Customer and
Supplier and set forth in attached Exhibit A.
h. Supplier's warranty shall remain in effect if Product is moved and
reinstalled by Customer or Customer's subcontractor during the Warranty Period,
unless damage to Product is inflicted by Customer or Customer's subcontractor
during move or reinstallation.
i. All items that are reasonably suspected of being not in conformance
with the warranty will be returned to Supplier by Customer, unless Supplier
waives this requirement based on individual incidents. Supplier will determine
if Product is in fact defective due to Supplier's fault and will report the
results of these findings to Customer. If Product is not defective, Customer
will bear the cost of shipping the item to Supplier. In addition, if Supplier
has sent out emergency replacements, and upon subsequent review finds that the
failure was not due to Suppliers Product, Customer agrees to pay for the
replacement in addition to the original item.
j. Service Warranty. If applicable, Services shall be performed
----------------
promptly, diligently, and in a competent and professional manner, in accordance
with the descriptions of such Services in the applicable Purchase Order and to
Customer's satisfaction.
k. Disclaimer of Implied Warranties: Sole Remedy. Except As Provided In
---------------------------------------------
This Section, Supplier Makes No Other Warranty, Express Or Implied. All
Warranties Of Merchantability And Fitness For A Particular Purpose Are Hereby
Expressly Disclaimed. This Warranty Contains Customer's Sole And Exclusive
Remedies And Is Expressly In Lieu Of All Other Remedies Based In Law Or Equity.
B.8 SPARE PARTS
For a period of [***] after the sale of a Product or discontinuance of a
Product, whichever is later, Supplier shall make spare parts available, or in
the event of a Product discontinuance, a good faith effort to make spare parts
available, to Customer and its Affiliates. The price for spare parts [***] If
Supplier discontinues the supply of spare parts at any time thereafter, and such
Confidential--Disclose and distribute solely to those individuals who have a
need to know.
8
spares are not available from another Supplier, then Supplier shall use its best
efforts to obtain, engage, license or otherwise provide for a third party to
manufacture and supply to Customer or its Affiliates such spares. If Supplier is
unable to secure such third-party manufacturer then Supplier shall provide at no
charge to Customer all technical information and any other rights required so
Customer can manufacture (if permitted by law to do so), have manufactured, or
obtain such parts from other sources. Any information provided by Supplier to
Customer pursuant to this Agreement shall be used solely by Customer for this
purpose and shall remain confidential upon termination or expiration of this
Agreement.
B.9 SOFTWARE SUPPORT SERVICES
If applicable for the products designated in this Agreement, for a period
of [***] from the date of this Agreement, and on the condition that Customer
continues to license the newest Software releases (or additional features or
functionality in existing Software releases) from Supplier no later than [***]
from the date they are first made available by Supplier and [***], Supplier
shall provide support services for the Software licensed to Customer under this
Agreement on terms and conditions (including pricing) which are no less
favorable than Supplier's offerings of support services for the same or similar
software to Supplier's other customers, taking into account local costs, and
other local conditions.
In the event that Supplier ceases to make new Software releases (or
additional features or functionality in existing Software releases) available to
Customer, then Supplier shall for a period of [***] from the date of
the Supplier's last Software release to Customer, continue to provide support
services for the last Software release licensed to Customer under this Agreement
on terms and conditions (including pricing) which are no less favorable than
Supplier's offerings of support services for the same or similar software to
Supplier's other customers in U.S., taking into account local costs, other local
conditions.
B.10 DOCUMENTATION
Supplier shall provide Customer as required, complete sets of standard
documentation, including product specifications as part of Exhibit C, one (1)
set for AirTouch Corporate operations, and one (1) set for each AirTouch
regional headquarters were Product is being or has been deployed. Supplier shall
include one complete set of product and installation documentation with each
CDMA SpotLight system shipped to Customer. Documentation shall be in a format
acceptable to Customer (i.e., printed, CD ROM, HTML, or PDF file format).
Confidential--Disclose and distribute solely to those individuals who have a
need to know.
9
B.11 PRODUCT SUPPORT
a. Technical Support and Training. At the reasonable request of the
------------------------------
Customer, Supplier shall promptly make available at the installation site a
field engineer to render installation assistance as required by Customer. The
foregoing will be provided at the charges set forth in Exhibit A to Customer,
not withstanding the foregoing, within the first 60 days of the warranty period
following installation, as set forth in Section B.7. a, [***] assistance. After
the first sixty (60) of the warranty period following installation, this field
installation assistance shall be paid for by the [***].
b. Supplier shall provide on-going 24-hour technical telephone support,
including field service and assistance during out of service conditions.
Supplier shall maintain an 8:00 a.m. to 5:00 p.m. PST technical product support
telephone hot line (1-(888) 642-2455 and 1-(425) 702-5975 FAX) Monday through
Friday. Supplier shall provide Customers with an emergency reach telephone
number to obtain support for out of service conditions during hours in which the
telephone hot line is not manned or operational. Customer, by calling this
number, shall have the ability to receive detailed technical Product support and
answers to technical questions involving Product operation, fault diagnosis,
interoperability and other technical aspects of Products.
Such telephone technical support shall be provided [***] Customer shall pay
Supplier's reasonable costs and expenses incurred by Supplier in providing any
on-site technical support, including, without limitation, air fare, lodging,
ground transportation, and labor expenses, when these services are identified
and ordered by a Purchase Order or service authorization letter.
c. If requested by Customer, Supplier shall; [***]
Classes shall be available prior to the commercial deployment of Product
and shall be conducted at reasonable intervals at locations agreed upon by
Supplier and Customer, or (ii) at the option of Customer, Supplier shall provide
to Customer training modules or manuals and any necessary assistance, covering
those areas of interest outlined above, in detail, format, and quantity to allow
Customer to develop and conduct a training program.
The foregoing will be provided at the charges set forth in Exhibit A to
Customer, unless otherwise specified in advance by Supplier.
Confidential--Disclose and distribute solely to those individuals who have a
need to know.
10
d. The availability or performance of this technical support and training
service shall not be construed as altering or affecting Supplier's warranties or
any other obligation of Supplier under this Agreement.
B.12 SPECIAL PROVISIONS
a. Invoices. Customer shall receive an [***]
B.1 DISASTER AVAILABILITY
If any Standard Products are rendered inoperative as a result of a natural
or other disaster or emergency, Supplier will make all reasonable efforts to
supply or help locate backup or replacement Products for Customer's use and at
Customer's cost. Supplier must support out of service conditions as a priority
by either maintaining pre-determined inventory or an expedited manufacturing
priority process. Either process selected should typically result in shipment
of product within twenty four (24) hours of out of service notification.
Customer shall pay to Supplier (if required by special circumstance) mutually
agreed expedite charges as needed.
C. GENERAL PROVISIONS
C.1 DISPUTE RESOLUTION
a. In the event that a dispute arises over the interpretation or
application of any provision of this Agreement or the grounds for termination
hereof, any party may request that the parties meet within [***] of such request
and seek to resolve the dispute by negotiation [***]. Such meetings shall be
attended by individuals with decision-making authority, to attempt in good faith
to negotiate a resolution of the dispute prior to pursuing other available
remedies. If, [***] after the first such meeting, the parties have not
succeeded in negotiating a resolution of the dispute, a party may request that:
[***]
11
[***]
b. If the attempts to resolve a dispute described in subsections a. [***]
of this section fail, then the dispute will be mediated by [***] after written
notice by either party demanding mediation. [***]
c. [***]
[***]
Confidential--Disclose and distribute solely to those individuals who have a
need to know.
12
[***]
d. [***]
Nothing in this section will prevent any party from seeking injunctive
relief in a judicial proceeding if interim relief from a court is necessary to
preserve the status quo pending resolution or to prevent serious and irreparable
injury to that party or others.
e. The parties shall continue to perform all obligations under the
Agreement pending the above-described dispute resolution proceedings, subject to
full reservation of rights at law or under this Agreement.
C.2 TAXES AND OTHER CHARGES
a. Supplier's prices are exclusive of charges for freight and insurance.
Supplier shall bear the cost of all taxes, import and export duties, and other
governmental fees of whatever nature, except sales and use taxes levied by
states, municipalities or governmental authorities which shall be added to the
prices as applicable and stated as separate items on the invoice applicable to
each Purchase Order.
b. Supplier agrees to pay, and to hold Customer harmless from and against,
any penalty, interest, additional tax or other charge that may be levied or
assessed as a result of the delay or failure of Supplier for any reason to pay
any tax or file any return or information required by law, rule or regulation or
by this Agreement to be paid or filed by Supplier.
c. Upon Customer's request, the parties shall consult with respect to the
basis and rates upon which Supplier shall pay any taxes for which Customer is
obligated to reimburse Supplier under this Agreement. If Customer determines
that, in its opinion, any such taxes are not payable or should be paid on a
basis less than the full price or at rates less than the full tax rate, Supplier
shall comply with such determinations. If collection is sought by the taxing
authority for a greater amount of taxes than that so determined by Customer,
Supplier shall promptly notify Customer. If Customer desires to contest such
collection, Customer shall promptly notify Supplier. Although Supplier shall
cooperate with and provide reasonable assistance to Customer, Customer shall
direct the conduct of any proceedings, hearings or litigation involved in any
contest with respect to taxes for which Customer is obligated to reimburse
Supplier under this Agreement. Customer shall reimburse Supplier for any taxes,
interest or penalties which Supplier may be required to pay as a result of
Supplier's complying with Customer's determinations with respect to the payment
or contesting of any such taxes.
d. If any taxing authority advises Supplier that it intends to audit
Supplier with respect to any taxes for which Customer is obligated to reimburse
Supplier under this
Confidential--Disclose and distribute solely to those individuals who have a
need to know.
13
Agreement, Supplier shall (i) promptly so notify Customer, (ii) afford Customer
an opportunity to participate on an equal basis with Supplier in such audit with
respect to such taxes, and (iii) keep Customer fully informed as to the progress
of such audit. Each party shall bear its own expenses with respect to any such
audit, and the responsibility for any additional tax, penalty or interest
resulting from such audit, shall be determined in accordance with the applicable
provisions of this section.
C.3 CHANGES REQUIRED TO MEET CODES, LAWS OR REGULATIONS
During the Warranty period at no additional cost to Customer, provided
Customer promptly notifies Supplier of any pending Legislation that the Customer
is aware of that could impact the Products at the time a relevant Purchase Order
is issued to the Supplier or subsequently thereafter as the Customer becomes
aware of such Legislation, Supplier shall make any changes to the Products or
will provide mutually agreed replacements which are required by United States
laws (i) in effect on the Delivery Date of such Equipment, or (ii) enacted
within seven (7) years of such Delivery Date, provided that the enactment of
such law requires retroactive compliance and the enactment of such law was or
could reasonably have been anticipated by Supplier at the time of the original
Delivery Date. Customer agrees to negotiate with Supplier an equitable
adjustment in prices as required by this provision if the Products are out of
Warranty or extraordinary circumstances occur during the Warranty period that
impact the Supplier's ability to anticipate the required changes.
This provision shall not apply to Products, Affiliates or foreign laws to
which Products are or become subject unless and until Customer or Affiliate
affected by any such law has informed Supplier of any applicable Products laws
that are or shall be enacted in the jurisdictions in which Products are intended
to be shipped or used.
C.4 NOTICES
Except as otherwise provided in this Agreement, all notices or other
communications hereunder shall be deemed to have been duly given; (i) when made
in writing and mailed by certified mail, return receipt requested; (ii) upon
transmission when made by facsimile; or (iii) upon confirmation of receipt, when
made by overnight courier or hand delivery to the parties at the addresses set
forth below or at such other addresses as may be designated by the parties in
writing:
Supplier shall send notices to Customer at the following addresses:
Confidential--Disclose and distribute solely to those individuals who have a
need to know.
14
AirTouch Support Services, Inc. With a copy to:
255 Parkshore Drive
Folsom, California 95630 AirTouch Communications
Attn: Director, Strategic Supplier Relations 2999 Oak Road, MS 1025
Infrastructure Procurement Walnut Creek, CA 94596
Phone: (916) 357-3806 Attention: Legal Department
Fax: (916) 357- 3807 Fax: 925-210-3599
Customer shall send notices to Supplier at the following addresses:
Metawave Communications Corp. With a copy to:
10735 Willows Road N.E Metawave Communications Corp.
Redmond, WA 98052 10735 Willows Road N.E
Attn.: Richard Henderson Redmond, WA 98052
Title: VP, Sales & Marketing Attention: Legal Department
Phone: (425) 702-6515 Phone: (425) 702-5648
Fax: (425) 702-5976 Fax: (425)702-5978
The address to which notices or communications may be given by either party
may be changed by written notice given by such party to the other pursuant to
this section entitled "NOTICES".
C.5 YEAR 2000 DATE CHANGE WARRANTY
Supplier warrants by the year 1998, that the software, which is licensed to
Customer hereunder and used by Customer prior to, during or after the calendar
year 2000, includes, at no added cost to Customer, design and performance
according to Customer's "Year 2000 Compliance Standard" as shown in the attached
Exhibit I. This is to ensure Customer shall not experience software abnormally
ending and/or invalid and/or incorrect results from the software in the
operation of the business of Customer. The software design to ensure year 2000
compatibility shall include, but not be limited to, date data century
recognition, calculations that accommodate same century and multicentury
formulas and date values, and date data interface values that reflect the
century.
C.6 ENTIRE AGREEMENT
This Agreement including Exhibits A, B, C, D, E, F, G, H, I, J, K, Exhibit
XX and Exhibit Y2K and each Purchase Order and Acknowledgment issued hereunder
constitutes the entire agreement between the parties with respect to the subject
matter thereof. All prior agreements, representations, statements,
negotiations, understandings and undertakings are superseded hereby.
Confidential--Disclose and distribute solely to those individuals who have a
need to know.
15
C.7 EXCEPTIONS
The following modifications to Exhibit XX entitled "Terms and Conditions"
have been accepted and supersede the corresponding section printed within
Exhibit XX:
Section 1:2: Add the following sentence: "Supplier shall have the right to
-----------
refuse to do business and reject Purchase Orders from Affiliates for valid
business reasons."
Section 1.4 paragraph c: third paragraph: Change [***]
-----------------------
Section 1.4 paragraph g: second sentence: Change "dollars" to "numbers of
-----------------------
"Products".
Section 1.5: Replace the term "prices" throughout the section with the
------------
words "aggregate prices, terms, warranties and benefits"
Section 1.6 paragraph d: Delete the entire paragraph and replace with the
------------------------
following: [***]
Section 1.7 paragraph c: Add at the end of the sentence the words "in
-------------------------
Exhibit G".
Section 1.9: Delete the first sentence and replace with the following
-------------
words: "Customer shall inspect all Products shipped and, unless rejected at
the time of delivery, such product shall deemed accepted by the Customer".
Section 1.10 paragraph a: Change [***]
-------------------------
Confidential--Disclose and distribute solely to those individuals who have a
need to know.
16
Section 1.11: Delete the rest of the sentence following the word "Customer"
-------------
in the second line.C.8 COUNTERPARTS
This Agreement may be executed in multiple counterparts, each of which
shall be deemed an original and all of which taken together shall constitute one
and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective duly authorized representatives.
AirTouch Support Services, Inc.
- ----------------------------------
- ----------------------------------
By: /s/ Richard Henderson By: /s/ Richard Henderson
------------------------------- -----------------------------
Name: Richard Henderson Name: Gary Schindler
----------------------------- ---------------------------
Title: V.P. of Sales and Marketing Title: Executive Vice President,
---------------------------- --------------------------
Shared Services
Confidential--Disclose and distribute solely to those individuals who have a
need to know.
17