1
Confidential portions omitted and filed separately with the Commission
pursuant to an application for confidential treatment pursuant to Rule 24b-2
under the Securities and Exchange Act of 1934, as amended.
CONFIDENTIAL TREATMENT
iDEN(R) INFRASTRUCTURE [*] SUPPLY AGREEMENT EXHIBIT 10.2
This Agreement ("Agreement" or "Supply Agreement") is between Motorola, Inc., a
Delaware corporation, by and through its iDEN Infrastructure North American
Division with offices at 1301 East Algonquin Road, Schaumburg, Illinois 60196
("Motorola") and Nextel Communications, Inc. with offices at 1505 Farm Credit
Drive, McLean, VA 22102 ("Customer").
RECITALS:
Customer or its Affiliates have certain rights to use certain electromagnetic
radio frequencies licensed by the Federal Communications Commission (FCC) and
employs or intends to employ such frequencies to operate iDEN Systems in the
"Area" defined below in Section 1.
Customer shall purchase and Motorola shall sell, and where required by the
Customer, shall install and integrate iDEN Systems pursuant to the terms and
conditions of this Agreement for the term of [ * .]
The Exhibits to this Agreement are incorporated by reference into the Agreement.
The parties previously entered into the November 4, 1991 Letter Agreement, as
subsequently amended, for the sale by Motorola and purchase by Customer of
Subscriber equipment for use on the Systems (the "Subscriber Agreement").
AGREEMENT:
Now therefore, in consideration of the mutual obligations herein contained, the
parties agree as follows:
1.0 DEFINITIONS
Capitalized terms used in this Agreement and the Exhibits shall have the
following meanings:
ACCEPTANCE TEST PLAN
Exhibit "C" describes the Generic Acceptance Test Plan ("GATP"). The
Acceptance Test Plan ("ATP") is the plan for testing a new System or
System Expansion that is the specific GATP test the parties agree in
certain Project Orders or Quote Orders to make up the ATP of a specific
test of a System or System Expansion.
- -----------------------------
(R)Registered U.S. Patent & Trademark Office.
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* Confidential portions omitted and filed separately with the Commission
pursuant to an application for confidential treatment pursuant to Rule 24b-2
under the Securities and Exchange Act of 1934, as amended.
AFFILIATE
All wholly owned affiliates of Customer that operate solely in the United
States. See Section 6.6 for other legal entities that may qualify for
special pricing and payment terms covered by this Agreement.
AREA
The geographic area of any of the metropolitan market areas throughout
the United States.
CHANGE ORDER
Any change agreed to in writing, by Customer and Motorola, that modifies
the type or quantity of Equipment, Software or Services set forth in a
"Purchase Order", "Project Order", or "Quoted Order", which terms are
defined in Section 2.4.
COMMERCIAL SERVICE
The point at which the System or any portion thereof is functional and
operative and has one or more Subscribers, other than Subscribers
specifically connected as part of a test program.
CONDITIONAL ACCEPTANCE AND FINAL ACCEPTANCE
Conditional Acceptance of a System shall occur as follows:
With respect to new Systems, Conditional Acceptance shall occur [*]
shall occur and be evidenced by a notice signed by Customer when
substantially all Punchlist items have been resolved.
With respect to Expansion Product, in the event Customer purchases
Installation and Integration Services from Motorola prior to the date of
shipment, [*] above with respect to the System.
For Expansion Product, Equipment or Software purchased without
Installation and Integration Services, [*] and such Expansion Product,
Equipment or Software [*] Motorola will warrant the functional operation
of Equipment and Software [*] so long as such Equipment and Software is
installed by the Customer [*]
CONFIDENTIAL INFORMATION
Software, Documentation, Interfaces, and Specifications and information
marked as confidential or proprietary and transferred pursuant to this
Agreement which may include, without implied limitation, formulas,
processes, designs, photographs, plans, samples,
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* Confidential portions omitted and filed separately with the Commission
pursuant to an application for confidential treatment pursuant to Rule 24b-2
under the Securities and Exchange Act of 1934, as amended.
equipment, equipment performance reports, Subscriber lists, pricing
information, studies, findings, inventions, ideas, drawings, schematics,
sketches, specifications, parts lists, technical data, databases,
software in any form, flow charts, algorithms and other business and
technical information. Excluded from Confidential Information is that
which (i) the recipient had in its possession without confidential
limitation prior to disclosure, (ii) which is independently developed by
the recipient, (iii) which is known or becomes known to the general
public without breach of this Agreement, or (iv) which is received
rightfully and without confidential limitation by the recipient from a
third party. Confidential Information shall be subject to the
requirements of Section 12 of this Agreement.
DOCUMENTATION
The documentation described in Exhibit "H".
EQUIPMENT
Goods, hardware, and products (other than Software) contained in the
Price Book or in a Project Proposal or Quoted Proposal which are supplied
by or through Motorola to be used in conjunction with and as part of an
iDEN System.
EXPANSION PRODUCT
All Fixed Network Equipment, Software, and other products and services
purchased from Motorola to add to or expand a System.
FOB
When used herein shall mean that Motorola shall deliver to Customer's
carrier at a Motorola facility.
FIXED NETWORK EQUIPMENT - FNE
"FNE" shall mean Motorola supplied Equipment integral to the iDEN System,
including the following major components: [*]
iDEN
iDEN is the trademark for Motorola's advanced integrated radio-telephone
and dispatch communications system that is described in Exhibit "B".
IMPLEMENTATION SCHEDULE
The schedule set forth in the Project Order or Quoted Order for the
System or System Expansion.
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* Confidential portions omitted and filed separately with the Commission
pursuant to an application for confidential treatment pursuant to Rule 24b-2
under the Securities and Exchange Act of 1934, as amended.
INITIAL PROGRAM LOAD (IPL)
The Initial Program Load (IPL) Software is delivered with the System or
System Expansion, shall be the most current version of iDEN Software that
is in general release and includes the Software necessary to support all
major subsystems or components of the iDEN System as identified in the
Price Book, Project Order or Quoted Order. A license fee for the System
IPL is identified in the Price Book. Exhibit "N" hereto sets forth
alternate IPL license fees that may be elected by Customer, in whole but
not in part, if Customer meets the qualifications set forth therein.
INTEGRATION KIT
"Integration Kit" shall be as defined in Section 2.4.1(b).
INTERCONNECT CARRIER
Any local exchange carrier, inter-exchange carrier, or reseller of local
or inter-exchange service that is connected to the System.
INTERCONNECT FACILITIES
The medium connecting the iDEN Network Interconnect Switch to the public
switched telephone network or inter-exchange carrier network of any
Interconnect Carrier including termination facilities such as protected
termination blocks, end office termination repeaters and Channel Service
Units to permit direct connection to the System.
PRICE BOOK
Motorola's iDEN(R) Infrastructure Price Book, which is kept by Motorola
on the iDEN web site for use in the United States and updated
periodically by Motorola.
PUNCHLIST
The list, prepared during the ATP and the [ * ] subsequent to the
date of Conditional Acceptance and finalized no later than [ * ]
subsequent to the date of Conditional Acceptance, which sets forth those
items, if any, identified by Customer in good faith and agreed to by
Motorola (which agreement Motorola shall not unreasonably withhold or
delay) where the System or System Expansion or Expansion Product fail to
comply with the applicable specifications and performance standards set
forth in Exhibit "B" and the ATP.
RF
Radio Frequency.
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* Confidential portions omitted and filed separately with the Commission
pursuant to an application for confidential treatment pursuant to Rule 24b-2
under the Securities and Exchange Act of 1934, as amended.
SITE
Each of the physical locations comprising the System, which contains FNE,
including the geographic location that houses the iDEN mobile switching
office equipment.
SMP
The Software Maintenance Program defined in Exhibit "E".
SUBSCRIBER
A person who uses the System entitling the System operator to revenue.
SOFTWARE
The object-code or, in limited cases, source code computer programs
furnished by Motorola to Customer for use solely in conjunction with the
specific FNE identified in the Price Book, Project Order or Quoted Order.
Under the terms and conditions of the Software License in Exhibit "F".
SUBSCRIBER UNIT
Any manufactured and assembled, mobile or portable, iDEN
telecommunications unit intended for use by any Subscriber.
SYSTEM
A "System" shall be defined as a specified grouping of Equipment,
Software and related Services an MSO, RSO, or CSO supplied by or through
Motorola for the construction of a digital mobile network to provide
mobile integrated services for a geographic area utilizing the basic iDEN
technology platform.
SYSTEM EXPANSION
A " System Expansion" shall be defined as a specified grouping of
Equipment, Software and related Services or modification of an MSO, RSO,
or CSO utilizing the basic iDEN technology platform, and supplied by or
through Motorola as a single order or a group of related orders which are
received by Motorola within thirty (30) days from the date on which the
Motorola received the first of such related orders, unless otherwise
agreed to, having an aggregate minimum purchase price of [*] The specific
grouping shall be ordered for the modification of the existing design, or
to increase the capabilities or capacities of Customer's existing iDEN
System.
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* Confidential portions omitted and filed separately with the Commission
pursuant to an application for confidential treatment pursuant to Rule 24b-2
under the Securities and Exchange Act of 1934, as amended.
SYSTEM INTEGRATION
"System Integration" shall be as defined in Section 2.2.2(a).
TECHNICAL DEFINITIONS
The definitions set forth in Exhibit "B" shall have the same meaning
herein.
2.0 SCOPE OF AGREEMENT: IMPLEMENTATION
2.1 Customer agrees to purchase/license from Motorola and Motorola
agrees to sell/license Equipment, Systems, System Expansions, and
Expansion Product at prices set forth in the Price Book. [*] The
prices for goods and services set forth in the Price Book are the
[*] unless specifically noted to the contrary.
2.2 System Strategy
2.2.1 The parties agree to continue to work jointly to enhance
the iDEN technology by:
a) Consulting at [*]; and
b) Following the [*] process to define new features; and
c) [*]; and
d) Pursuing an action plan to attain [*] via changes in
System design, System architecture, operational procedures,
and other vendor actions; and
e) Working to strengthen public awareness of the iDEN
brand.
2.2.2 System Integration Strategy
(a) System Integration: The parties agree that Motorola
will continue to be the only System integrator for
Customer's iDEN Systems. "iDEN System Integration" shall
include but not be limited to System architectural design,
FNE Testing, iDEN standards, etc. All major iDEN switching
components that comprise the FNE will be procured through
Motorola. However, if Customer elects to purchase FNE from
an Alternative Infrastructure Manufacturer contemplated by
the Second Amendment to the 1991 Purchase Agreement
("Alternative iDEN Infrastructure Manufacturer"), it is
recognized that Motorola will continue to be the integrator
of all network elements purchased from such Alternative
iDEN Infrastructure Manufacturer's, [*]. These special
charges shall be negotiated and agreed upon by the Customer
and
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* Confidential portions omitted and filed separately with the Commission
pursuant to an application for confidential treatment pursuant to Rule 24b-2
under the Securities and Exchange Act of 1934, as amended.
Motorola in good faith and shall be [*]. In order to
protect an Alternative iDEN Infrastructure Manufacturer 's
proprietary technology from potential reverse engineering
by Motorola, it is agreed that a separate secure area will
be provided to such Alternative iDEN Infrastructure
Manufacturer in close proximity to Motorola's iDEN
development and test labs to enable Alternative iDEN
Infrastructure Manufacturer integration and type acceptance
testing by Motorola. The Alternative iDEN Infrastructure
Manufacturer will be responsible for all costs incurred by
Motorola in providing such separate secure area and in
performing such integration tests, etc. Notwithstanding the
commitments included in this Section, the Customer and
Motorola will agree to develop a mutually acceptable
arrangement for the integration of iDEN technology [*]
(b) Vendor Access and Information: Customer needs to
receive direct product information from the major vendors
to Motorola iDEN on operational support issues and future
product direction. This will be accomplished by periodic
supplier meetings conducted by Motorola at least twice a
year.
(c) Vendor Substitution: While the parties will continually
search the market for new vendors that can enhance overall
iDEN performance, changes in vendors [*.] If a change in
vendor(s) is at the request of the Customer, [*] multiple
vendor(s), retrofit of existing Systems, and [*] the
introduction of an Alternative iDEN Infrastructure
Manufacturer.
2.2.3 Joint Goal Setting
To reinforce the importance of the strategic relationship
each party has with the other, the parties agree to
annually set joint goals and create incentive plans for its
key employees tied to achieving such joint goals.
2.3 Motorola and Customer shall each appoint a Program Manager for
each System. Each such System Program Manager shall have the
responsibility to make good faith efforts to resolve problems and
disputes prior to initiating the dispute resolution procedures set
forth in Section 30. Other responsibilities are as follows:
2.3.1 The responsibilities of the Motorola Program Manager shall
include:
a. Serve as the primary Customer contact for the System.
b. Serve as the focal point for all Motorola internal plant
and field issues.
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Confidential: Use or disclosure of this document is subject to the restriction
on the Confidentiality Statement
c. Deliveries, subcontracts, installation, System testing
and integration, documentation, training and all duties
required to coordinate any work of the various Motorola
team members required by the Customer.
d. Clarify the final definition of all Customer and project
requirements.
e. Establish a detailed project schedule and oversee
accomplishment of project milestones.
f. Establish the project team structure and staffing.
g. Establish and maintain project reporting and measurement
procedures.
h. Meet regularly with Customer's Program Manager to review
progress and project issues.
i. Facilitate within Motorola Customer's order placement
and order acceptance procedures.
2.3.2 The responsibilities of the Customer Program Manager shall
include:
a. Serve as primary Motorola contact for the System.
b. Serve as the focal point for all Customer internal and
field issues.
c. Schedule and oversee accomplishment of project
milestones.
d. Review and approve accomplishment of project milestones.
e. Disseminate project reports and measurement procedures
within Customer's organization.
f. Approve all modifications to specifications.
g. Approve and acquire all Sites, notify the Motorola
Program Manager of Site availability, and coordinate
Motorola's access to the Sites.
h. Meet regularly with the Motorola Program Manager to
review progress and project issues.
2.4 Customer may order System or Expansion Product on Purchase Orders,
Project Orders, or Quoted Orders as defined in Section 2.4.1,
Customer purchase order forms if such forms incorporate by
reference this Agreement and state that this Agreement supersedes
all terms and conditions that may appear as preprinted items on
the customer purchase order form. The purchase order shall be used
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9
* Confidential portions omitted and filed separately with the Commission
pursuant to an application for confidential treatment pursuant to Rule 24b-2
under the Securities and Exchange Act of 1934, as amended.
only to identify quantities of goods and/or services ordered, and
all prices shall be as set forth in the then current Price Book or
Project Orders or special Quoted Orders. For these purposes, the
following statement on a purchase order shall suffice as such
incorporation by reference and supersession:
"All terms and conditions of the Nextel/Motorola iDEN(R)
Infrastructure [*] Supply Agreement, dated as of
January 1, 1999, as amended, shall apply to this purchase
order and shall supersede and replace any preprinted or
other terms and conditions contained herein."
Standard Equipment order lead times and installation period shall
be as set forth in the then current Price Book. [*.]
2.4.1 It is anticipated that there will be three categories of Orders
hereunder:
(a) Purchase Orders. Purchase Orders shall cover Equipment
(including warranty cost as shown in the Price Book);
Software; Services associated with items that are identified
in the Price Book or a Project Order or Quote Order as
described below.
(b) Project Orders. Project Orders shall cover System Integration
Services and "Integration Kits" that provide standard charges
for cables and connectors, and miscellaneous or unique
hardware, special engineering costs and special parts. If
Customer requests non-standard work, non-standard Integration
Kit charges shall apply and shall be negotiated and agreed by
the parties prior to final submission and shall be reflected
in the final Project Order. Project Orders shall also identify
all Equipment, hardware or Software and all Purchase Orders
related to the Services ordered. If Customer makes changes to
the scope of the work required for the Project Order,
additional or reduced charges may apply. Exhibit "A" contains
a sample Project Order form and a process map of the ordering
process. Project Orders may be made from Customer's ordering
system, subject to use of the Section 2.4 language
incorporating this Agreement.
(c) Quoted Orders. Quoted Orders shall be for Equipment or
Services that are not in the Price Book or require
customization or deviate in any material respect from
standard product or service offering detailed in the Price
Book. If Customer makes changes to the scope of the work
required for the Quoted Order, additional or reduced charges
may apply.
2.4.2 Order Process
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* Confidential portions omitted and filed separately with the Commission
pursuant to an application for confidential treatment pursuant to Rule 24b-2
under the Securities and Exchange Act of 1934, as amended.
Purchase Orders may be completed by Customer without the need for
input from Motorola. Receipt of Purchase Orders will be
acknowledged by Motorola.
Project Orders may be completed by Customer using the form set out
in Exhibit "A" hereto. Motorola shall review all documents and
indicate its acceptance by signing and returning a copy to
Customer or shall work with Customer to modify the Project Order,
which both parties shall sign indicating a binding agreement
between the parties.
Quoted Orders shall be requested by Customer, and Motorola shall
prepare a specific quote for Customer. Customer shall review the
Quoted Order as prepared by Motorola and all related documentation
and indicate its acceptance by signing and returning a copy to
Motorola or shall work with Motorola to modify such Quoted Orders.
Both parties must sign a modified Quoted Order before it will be
accepted by and binding on the parties.
All Purchase Orders, Project Orders, and Quoted Orders shall
contain the applicable System Integration and warranty as outlined
in the Price Book. All applicable System configuration information
and applicable questionnaires shall accompany Purchase Orders,
Project Order, and Quote Order.
2.4.3 Changes in Project Orders
All changes in Project Orders shall be by written Amendment signed
by both parties except for the below type of changes ("Project
Order Adjustments"):
(a) Changes to Customer requested ship dates;
(b) Changes to shipping locations to an alternate
authorized Customer location;
(c) Contemporaneous faxes/emails. Project Order Adjustments
may be made by the oral agreement of one Authorized
Party from Customer and one Authorized Party from
Motorola followed by a contemporaneous faxed or emailed
confirmation from one party to the other. For the
purpose of this Section, "Authorized Party" shall be
the program manager or others agreed to between the
parties.
Customer may cancel orders without charge up to [*] days after the
order (provided shipment has not occurred), thereafter a
cancellation fee may apply.
2.5 Head Start for iDEN Dispatch
Subject to [*] the parties agree as follows:
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* Confidential portions omitted and filed separately with the Commission
pursuant to an application for confidential treatment pursuant to Rule 24b-2
under the Securities and Exchange Act of 1934, as amended.
(a) In any case where competitive suppliers offer [*].
(b) If Motorola's [*]. Further, until [*] any enhancements
beyond the current [*.]
(c) [*]
3.0 OBLIGATIONS OF CUSTOMER
Customer shall:
3.1 Design the RF coverage plan and frequency plan for each Area
including but not limited to Site location, frequencies at each
Site, RF coverage from each Site, co-channel interference caused
from one Site to another Site, co-channel interference from
non-Customer sites.
3.2 Procure necessary FCC radio station licenses together with such
other authorizations as may be required to construct and operate
the System, including without implied limitation, Site building
permits, zoning variances, and any other required approval or
authorizations from appropriate government and other authorities,
including but not limited to the FCC, and any required
authorizations from any local agencies. Assume the responsibility
for interfacing with appropriate carriers and other providers for
the provision of Interconnect Facilities, electrical power and
Customer-supplied equipment in accordance with the Implementation
Schedule.
3.3 Make all legal arrangements and pay all expenses, that may be
required, to Site owners or to others, to construct and operate
each Site in accordance with the provisions of this Agreement.
3.4 Bear the costs of its own legal fees, as well as charges for Site
acquisition, Interconnect Facilities, telephone and utility
charges and other services and items being supplied by Customer
under this Agreement. Provide ingress and egress to Sites, as
requested by Motorola, and have Sites available for timely
installation of System Equipment.
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* Confidential portions omitted and filed separately with the Commission
pursuant to an application for confidential treatment pursuant to Rule 24b-2
under the Securities and Exchange Act of 1934, as amended.
3.5 Negotiate in good faith the Implementation Schedule and adhere to
the schedule for performance of the responsibilities set forth
therein.
3.6 Negotiate in good faith the Punchlist for the System or System
Expansion and Expansion Product prior to the expiration of the [*]
period following the date of Conditional Acceptance.
3.7 Not unreasonably withhold either Conditional or Final Acceptance
or any other approvals required under this Agreement.
3.8 Assume responsibility for diagnosis, analysis, isolation, and
remedy of problems in the Interconnect Facilities or at the
Interconnect Carrier side of the interface with the System.
3.9 Furnish necessary databases to Motorola in accordance with the
Implementation Schedule.
3.10 Make payments according to the schedule set forth in Section 6 of
this Agreement.
3.11 As required purchase or provide the services set forth in Exhibit
"D".
3.12 Assume responsibility for lawful operation of the System.
3.13 Be responsible for the timely transportation of all Equipment from
the FOB shipment point to the sites.
3.14 Provide and assume all associated costs for warehousing, storage,
inventory, and staging of Equipment prior to transport to the
installation sites.
3.15 Use best endeavors to provide secure covered storage areas at each
Site and unrestricted access to each Site on a 24-hour basis.
3.16 Furnish and install suitable environmental control facilities in
each building.
3.17 Provide telephone company network configuration including dial
plan and design.
3.18 Within [*] after the execution date of any Project Order or Quoted
Order, or at such time as may be agreed by the parties, make
available the technical details of any and all Customer-supplied
equipment to which the System must be interfaced. Also provide
technical liaison personnel on a full-time basis with the
knowledge of Customer-supplied equipment.
3.19 Provide any outside cable support bridges required, coaxial, and
transmission line access ports into the buildings, inside conduit
or cable ducts, any necessary inside floor trenches and cable
raceways required for installation.
3.20 Provide insurance coverage for all Equipment from FOB point.
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* Confidential portions omitted and filed separately with the Commission
pursuant to an application for confidential treatment pursuant to Rule 24b-2
under the Securities and Exchange Act of 1934, as amended.
3.21 In response to Motorola's reasonable request, provide Motorola
with information as may be required to enable Motorola to comply
with all applicable laws and regulations.
3.22 Provide all Site development services and engineering drawings as
set forth in Exhibit "D", in order to enable Motorola to install
and integrate the System in accordance with the agreed upon
schedule set forth in the Implementation Schedule.
3.23 Provide capable technical personnel in order to be trained in the
operation and maintenance of the System and to interface with
Motorola with regard to operational and maintenance issues.
3.24 Perform all other obligations set forth in this Agreement and any
other agreement delivered in connection herewith.
3.25 Provide forecasts in good faith for Equipment and Services,
addressing [*], provided that such forecasts shall not constitute
commitments to purchase Equipment and Services or to submit orders
for Equipment and Services. These forecasts may be revised by the
Customer at any time and for any reason.
3.26 Provide Motorola with reasonable notice of any anticipated delay
in Customer's performance hereunder.
4.0 OBLIGATIONS OF MOTOROLA
Motorola shall:
4.1 Conduct analyses to determine the required material, effort, and
services necessary for Installation and Integration at no extra
cost.
4.2 Negotiate in good faith Implementation Schedules and perform
according to such Schedules.
4.3 Negotiate in good faith the Punchlist for the System or System
Expansion and Expansion Product prior to the expiration of the [*]
period following the date of each respective Conditional
Acceptance.
4.4 Install the MSO Equipment and adjust the System or System
Expansion to the standards set out in Exhibits "B" and "C" and in
compliance with Exhibit "D".
4.5 Keep Customer advised of modifications required.
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* Confidential portions omitted and filed separately with the Commission
pursuant to an application for confidential treatment pursuant to Rule 24b-2
under the Securities and Exchange Act of 1934, as amended.
4.6 Provide, at a reasonable cost to Customer, a retrofit package for
any change in standards subsequently put into effect by the
industry, the government, regulatory agencies, as well as those
promulgated by Motorola.
4.7 Continue to develop operability and reliability improvements to
iDEN technology over time to reduce the Customer's cost of
ownership on a per Subscriber basis and continue to develop and
implement new feature functionalities agreed to by the parties
throughout the term of the Agreement.
4.8 When requested to by Customer, review the frequency plan prepared
by Customer or Customer's consultant at no additional charge to
Customer. Because of differences in radio coverage and
interference models and the timeframe of implementation, this
review will not be a complete detailed alternate engineering of
the System design, but rather a review of selected design elements
in sample areas. It is understood that Motorola's obligation is
only to review the frequency plan as an accommodation to Customer.
Motorola shall not recalculate or verify the frequency plan
preparer's work and shall have no responsibility or liability
whatsoever based on this review.
4.9 Not divert to another customer any Equipment scheduled for
delivery to Customer pursuant to an accepted Purchase Order,
Project Order or Quoted Order without Customer's approval.
4.10 Make spares and replacement parts available for [*] from the date
of this Agreement. Motorola reserves the right to substitute
equivalent products. Spare and replacement parts prices shall be
at the then current Motorola prices.
4.11 Install and integrate the System or System Expansion and Expansion
Product in compliance with all applicable federal, state and local
laws and all rules and regulations promulgated pursuant thereto
including all FCC approvals and certifications.
4.12 Use commercially reasonable efforts to accept Customer's orders,
to make timely delivery and to install and integrate the System or
System Expansion according to the Schedule set forth in the
Implementation Schedule.
4.13 Use commercially reasonable efforts to remedy all Punchlist items,
defects and problems during the warranty and maintenance periods.
4.14 In response to Customer's reasonable request, provide Customer
with information as reasonably known to Motorola which may be
required to enable Customer to comply with all applicable laws and
regulations.
4.15 Use skilled personnel, competent to perform assigned tasks.
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15
* Confidential portions omitted and filed separately with the Commission
pursuant to an application for confidential treatment pursuant to Rule 24b-2
under the Securities and Exchange Act of 1934, as amended.
4.16 Perform all other obligations set forth in this Agreement and any
other agreement delivered in connection herewith.
4.17 Provide Customer with reasonable notice of any anticipated delay
in Motorola's performance hereunder.
4.18 Prior to shipment Motorola will obtain type approval for any
Equipment sold herein that requires type approval in the Area.
4.19 For any new product development Motorola shall propose special
terms and conditions associated with the purchase of such new
product for the parties' approval.
4.20 All equipment sold to Customer hereunder is new and Motorola will
provide any documents which may be reasonably requested by
Customer evidencing this fact.
4.21 At the time or times contemplated herein for the transfer of title
to any equipment included in the System, Motorola shall convey to
Customer all right in and good title to such equipment by
appropriate title documents. Title to Software shall not be
conveyed to Customer at any time.
4.22 [*]
5.0 SITE CONFIGURATIONS
This Agreement, and the prices provided in the Price Book, Project Order,
or Quoted Order are predicated on the use of certain Site configurations
provided by Customer. Customer is free to alter Site configurations
during the course of performance of this Agreement. However, changes in
site configurations may result in either increased or decreased costs for
BSC equipment, MPS equipment and other related FNE.
6.0 PAYMENT AND PRICING
6.1 General Payment Terms
Customer shall pay to Motorola the price of subsystem Equipment
and Software components and related Services, as set forth in the
Price Book in effect at the time of such Equipment order and will
use an appropriate Company purchase order to order all Equipment,
Software and/or Services in United States dollars, and according
to the following terms and payment schedules:
6.1.1 The Price Book contains standard lead times (which are
updated as market conditions change) and expedite fees
which are incorporated by reference
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* Confidential portions omitted and filed separately with the Commission
pursuant to an application for confidential treatment pursuant to Rule 24b-2
under the Securities and Exchange Act of 1934, as amended.
herein. Motorola does not warrant that lead times can be
moved in. At times Motorola can move in such lead times by
paying Motorola's suppliers expedite fees, paying for
overtime or other methods. If Motorola is requested to
perform in such times Customer shall pay the expedite fees
set forth in the Price Book. The lead times set forth in
the Price Book will be shown for both cases where the
product is forecasted and when it is not forecasted.
6.1.2 For all [*] and for all [*] purchased by Customer
hereunder, Motorola shall invoice [*] of the purchase price
upon shipment. Customer shall pay such invoices within [*]
of issuance.
For all [*] purchased by Customer hereunder other than [*,]
Motorola shall invoice [*] of the purchase price upon
shipment, [*] of the purchase price upon Conditional
Acceptance and [*] upon Final Acceptance. [*.] Customer
shall pay such invoices within [*] of issuance.
Motorola shall, from time to time, set open account credit
limits for the Customer and notify customer of such limits.
6.1.3 Taxes, duties and fees: Exclusive of corporate and personal
income taxes, all taxes applicable to this transaction,
including but not limited to sales, lease, service rental,
use, property, wage, occupation, value added or similar
taxes, customs and import duty, and any state or local
government obligations shall be borne by Customer. Upon
Motorola's request, Customer shall produce sufficient
evidence within [*] of such request to prove that Customer
has fulfilled its obligation relating to all taxes, duties,
and fees. If any such taxes, duties, or fees are determined
by the applicable taxing authorities to be applicable to
this transaction and, notwithstanding Customer's
responsibility, Motorola is required to pay or bear the
burden thereof, then the prices set forth in the Price
Book, Project Order or Quoted Order shall be increased by
the amount of such taxes and any interest or penalty, and
Customer shall pay to Motorola the full amount of any such
increase no later than [*] after receipt of an invoice.
Motorola shall, where possible, use reasonable efforts to
minimize Customer's tax burden unless, in Motorola's sole
judgment, the effort and/or result would be to Motorola's
detriment.
6.1.4 The licensing fee for Software is set forth in the Price
Book. Subsequent purchases of Equipment, increases to
capacity, SMP renewals or new features [*], as set forth in
the Price Book or as specifically proposed by Motorola.
Exhibit "N" hereto sets forth alternate IPL license fees
that may be elected by Customer, in whole but not in part,
if Customer meets the qualifications set forth therein. In
the event there is an Alternate
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* Confidential portions omitted and filed separately with the Commission
pursuant to an application for confidential treatment pursuant to Rule 24b-2
under the Securities and Exchange Act of 1934, as amended.
Infrastructure Manufacturer, the parties shall agree to a
new method of [*] or, if the parties cannot agree, revert
to the [*] as it appears in the Price Book. All Software
shall be licensed per the terms and conditions set forth in
Exhibit "F".
The software [*] offered in Exhibit "N" is valid only for
the purchase of [*] as a package from Motorola. If any
Motorola [*] hardware is purchased directly from a third
party source, [*] shall be charged in addition to any
applicable fees set forth in Exhibit "N". Motorola does not
accept any liability for System integration or warranty
obligation for such separately purchased hardware or
software, and if Motorola is called on any warranty claim
or other service request involving such hardware or
software, Customer [*] for such calls.
6.1.5 Customer shall pay for any training ordered by the Customer
per the Price Book and other appropriate agreements.
6.1.6 Subject to the conditions contained in 4.11 any costs
required to modify the System in order to comply with local
codes or regulations shall be Customer's responsibility.
6.1.7 For any amount due hereunder which remains unpaid, the
Customer shall pay Motorola [*] of the amount due for each
month or portion thereof that the amount remains unpaid.
6.1.8 For each [*] complex or the equivalent shipped during the
term of this Agreement, Customer shall receive, [*.] For
each group of [*] shipped during the term of this agreement
Customer shall receive [*.] Each "set" of MSO training
classes includes all iDEN technical training courses
currently available in the Exhibit "G" training catalog.
6.1.9 All prices quoted herein assume [*]. Where the customer
requires the use of [*] than a price increase or decrease
equal to the applicable [*] will apply.
6.2 Method of Payment
Payment shall be made by wire/telegraphic transfer to the
following address:
[*]
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* Confidential portions omitted and filed separately with the Commission
pursuant to an application for confidential treatment pursuant to Rule 24b-2
under the Securities and Exchange Act of 1934, as amended.
6.3 Prices Generally
6.3.1 [*.]
6.3.2 [*.]
6.3.3 [*.]
6.3.4 [*.]
6.3.5 [*.]
6.3.6 [*.]
6.3.7 [*.]
6.3.8 [*.]
6.4 [*.]
6.5 [*.]
6.6 [*.]
6.7 Security Interest
Customer hereby grants to Motorola a continuing security interest
and right of possession in and to all equipment sold to Customer
under this Agreement whether or not such goods are manufactured by
Motorola, whether now owned or hereafter acquired by Customer,
together with all substitutions, replacements and renewals
thereof, and in all proceeds and products thereof, including
without limitation, insurance proceeds, all termed collateral.
Customer agrees to cooperate in whatever manner necessary to
assist Motorola in perfection of the security interest upon
request. If there is any conflict between this Paragraph and any
other financing agreement(s) with Motorola, such financing
Agreement(s) shall take precedence.
6.8 For the purpose calculating quantity discounts hereunder equipment
[*] shall be counted in the same manner as if Customer had [*]
directly.
7.0 ADDITIONAL OUT OF SCOPE TESTS
7.1 The parties agree that the acceptance testing shall be done for
all new Systems and a modified ATP shall be performed for all
System Expansions and shall be included in all relevant Purchase
Orders, Product Orders, or Quoted Orders. The
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* Confidential portions omitted and filed separately with the Commission
pursuant to an application for confidential treatment pursuant to Rule 24b-2
under the Securities and Exchange Act of 1934, as amended.
ATP tests shall be chosen from the GATP the parties have agreed to
and set forth as Exhibit "C" and identified on the Project Order
or Quote Order when Customer purchases ATP Services.
This ATP is generic in nature and tests operational features.
Should a certain feature or option not be purchased then it is
agreed that portion of the ATP shall be deleted and will not be
performed. Motorola shall supply new sections to cover new
products or features Motorola develops. The GATP will be amended
to reflect desired practices for testing Systems in Commercial
Service. The parties acknowledge that different approaches are
required for Systems in Commercial Service and those acceptable
for Systems not in Commercial Service.
7.2 Should Customer request additional testing above and beyond the
ATP, these tests shall not be considered until after Conditional
Acceptance of the System. Motorola shall prepare and present to
Customer a quotation detailing the time and material charges that
such additional testing may require on a time and material basis.
[*.]
7.3 Individual Site Tests and the Switch Test shall be performed in
accordance with the ATP as soon as the individual Sites and Switch
are completed. The System Test shall be performed as soon as the
Switch and Site Tests are completed. If all the Sites are not
available and operational due to Customer's failure to obtain the
Sites by the required scheduled time as contained in the
Implementation Schedule hereto ("Unavailable Sites"), the tests
shall still take place.
7.4 The Areas served by the Unavailable Sites shall not be included in
the System Test. When the Unavailable Sites are operational and
available, the Site Test shall be completed. The existence of
Unavailable Sites shall not hold up the ATP or Conditional or
Final Acceptance.
7.5 Additional Testing Costs
The cost of obtaining a passing test for each of the items in the
ATP is included in the purchase price of the ATP. Any additional
testing shall be billed to Customer as set forth in Section 7.2.
This includes, but is not limited to, testing due to:
a. Customer's desire for testing not included in the ATP; and
b. Retesting that is needed because the Customer's Site team makes
changes to agreed schedules to such an extent Motorola needs to
materially extend the time period its ATP team needs to
complete the ATP; and
c. RF interference from outside sources; and
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* Confidential portions omitted and filed separately with the Commission
pursuant to an application for confidential treatment pursuant to Rule 24b-2
under the Securities and Exchange Act of 1934, as amended.
d. The need to respond to complaints of third parties alleging
Customer's System interferes with their systems, unless the
Equipment sold hereunder is not operating within licensed
parameters; and
e. Unavailable Sites.
8.0 FNE WARRANTY AND SOFTWARE MAINTENANCE PROGRAM
8.1 FNE Hardware Warranty
8.1.1 FNE, is warranted to be free from defects in material and
workmanship at time of shipment and will be warranted [*.]
The [*] EBTS Equipment hardware warranty during the
warranty period shall be [*] for all shipments that occur
during the effective dates of this Agreement. All other
warranty charges shall be as per the Price Book. Parts will
[*] except as outlined herein.
8.1.2 Customer shall be responsible for the initial level of
diagnosis (i.e., for identification and isolation of FNE
hardware problems to the board level), for hardware,
firmware and software removal and replacement, and for
sending the malfunctioning product, packed in a manner to
prevent damage, to the [*]. Customer shall be responsible
for [*]. When such products or their replacements are
being returned to Customer, Motorola shall bear such
charges.
8.1.3 Parts and labor at the [*] to repair or replace defective
FNE will be [*.]
8.1.4 In the event a defect occurs during the warranty period
Motorola, at its option, will either repair or replace the
product. Any item replaced will be deemed to be on an
exchange basis, and any item retained by Motorola through
replacement will become the property of Motorola. Repaired
or replaced parts shall have a warranty of the greater of
the remainder of this warranty period or [*.]
8.2 This Warranty does not cover defects, damage, or malfunctions
resulting from:
8.2.1 Use of the products in other than their normal and
customary manner.
8.2.2 Misuse, accident, neglect, environmental or Site conditions
not conforming to the specifications for the product as set
out in the current Equipment specifications, or
unauthorized access to source or object code or
manipulation of Software elements
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* Confidential portions omitted and filed separately with the Commission
pursuant to an application for confidential treatment pursuant to Rule 24b-2
under the Securities and Exchange Act of 1934, as amended.
8.2.3 Unauthorized alterations or repairs, use of unapproved
parts in the products or the combination or interfacing of
the products, use of "gray market" parts or components, in
each case in a manner not approved by Motorola. "Gray
market" components or parts are those components or parts
purchased (a) outside the United States or (b) from
unauthorized sellers of such components or parts.
8.2.4 An event of Force Majeure.
8.2.5 Installation, integration, or movement of products from
their original installation Site that is not in accordance
with Motorola hardware configuration and datafill
guidelines.
8.2.6 Failure of antennas, lines, or any part of the Interconnect
Facilities.
8.2.7 Failure of Customer to maintain or provide maintenance for
the System pursuant to Motorola Equipment and Software
maintenance agreements, or other maintenance, substantially
in accordance with the Documentation and under the
supervision of one or more individuals who shall have
completed appropriate Motorola training.
8.2.8 Damage which occurs during shipment of the product to
Motorola for warranty repair.
8.3 Except as associated with an agreed-to assignment, this express
warranty is extended by Motorola, Inc. to Customer only and is
valid only in the Area.
8.4 Software Maintenance Program (SMP)
8.4.1 Customer commits to purchase SMP [*] and Motorola commits
to offer SMP at the prices set forth in Exhibit K [*]
therein pursuant to the proposal set forth in Exhibit "O".
Forward [*] shown in Exhibit K [*.] Therefore, to the
extent Motorola is able to [*.] The quarterly payment shall
be one-quarter of the calculated annual payment. SMP prices
for [*] are attached. The quoted prices are for the
services defined in Exhibit "O". The SMP Agreement shall be
evidenced by Customer's Purchase Order indicating which
sections of said proposal are agreed to by the parties. Any
additional services agreed to by the parties shall also
contain applicable pricing for such services.
8.4.2 Motorola warrants that at the time of ATP or delivery of
Software, that the Software will cause the System to
operate as required by the ATP. Thereafter, all
reproducible software defects or bugs shall be corrected as
part of SMP.
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Confidential: Use or disclosure of this document is subject to the restriction
on the Confidentiality Statement
8.4.3 Motorola represents and warrants that Software supplied
under this Agreement does not have "Software Traps"
designed to permit unauthorized access, to disable or erase
software, hardware or data or to perform any other such
actions.
8.5 Non-FNE Products
Non-FNE products are warranted only to the extent provided to
Motorola by the manufacturer or supplier of such product.
8.6 Motorola warrants that each hardware, software, and firmware
product delivered under this Agreement and listed on Exhibit "M"
as "Year 2000 Compliant" shall be able to accurately process date
data (including, but not limited to, calculating, comparing, and
sequencing) from, into, and between the year 1999 and the year
2000, including leap year calculations, when used in accordance
with the product documentation provided by Motorola, provided that
all listed or unlisted products (e.g., hardware, software,
firmware) used in combination with such listed product properly
exchange date data with it. This warranty shall extend to
date-related defects discovered through January 1, 2001. Customer
must notify Motorola, in writing, no later than January 1, 2001 of
Product that does not conform to this Express Warranty. The
remedies available for breach of this warranty shall be as defined
in, and subject to, the terms and limitations of Sections 8.1
through 8.5 and Section 8.7. Except as provided herein, nothing in
this warranty statement shall be construed to limit any rights or
remedies provided elsewhere in this Agreement with respect to
matters other than Year 2000 performance.
8.7 THE WARRANTIES IN THIS AGREEMENT ARE GIVEN IN LIEU OF ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, WHICH ARE SPECIFICALLY EXCLUDED,
INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL MOTOROLA BE
LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL OR
PUNITIVE DAMAGES TO THE FULL EXTENT SUCH MAY BE DISCLAIMED BY LAW.
MOTOROLA WARRANTS THAT FOR THE TERM OF THIS AGREEMENT THAT THE
INDIVIDUAL FNE PRODUCTS WILL OPERATE TOGETHER AS A SYSTEM WITHIN
GENERAL OPERATING LIMITS SPECIFIED IN EXHIBIT "B", SO LONG AS THE
AVERAGE SUBSCRIBER USAGE CHARACTERISTICS OF THE INDIVIDUAL FNE
PRODUCTS AT BUSY HOUR DO NOT CAUSE THE PEAK CAPACITY LIMITS OF
INDIVIDUAL FNE PRODUCTS TO BE EXCEEDED AND ANY EQUIPMENT INSTALLED
BY THE CUSTOMER WITHOUT MOTOROLA INTEGRATION AND GATP ASSISTANCE
IS INSTALLED IN ACCORDANCE WITH MOTOROLA HARDWARE CONFIGURATION
AND DATAFILL GUIDELINES; BATTERIES ARE
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Confidential: Use or disclosure of this document is subject to the restriction
on the Confidentiality Statement
EXCLUDED BUT CARRY THEIR OWN SEPARATE LIMITED WARRANTY FROM THEIR
MANUFACTURER. MOTOROLA DISCLAIMS LIABILITY FOR RF COVERAGE UNDER
THIS WARRANTY.
9.0 PRODUCT CHANGES OR SUBSTITUTIONS
At any time during its performance of this Agreement, Motorola may
implement changes in the products set forth in Exhibit "B", modify
the drawings and specifications relating thereto, or substitute
therefor products of more recent design; provided, however, that
any such changes, modifications or substitutions, under normal and
proper use:
(1) shall not materially or adversely affect physical or
functional interchangeability or performance (except
where there is written agreement between the parties
that the change can be made after Customer knows the
effect thereof);
(2) shall not detract from the safety of the product;
and
(3) shall be FCC type-accepted, if required.
(4) Motorola shall notify Customer of any change that is
not downward compatible.
10.0 DISCLAIMER OF PATENT LICENSE AND INTERFACE LICENSES
10.1 Nothing contained in this Agreement shall be deemed to grant,
either directly or by implication, any license under any patents
or patent applications of Motorola, except that Customer shall
have the normal non-exclusive royalty-free license to use which is
implied, or otherwise arises by operation of law, in the sale of a
product.
10.2 For iDEN infrastructure Equipment, Motorola shall provide
Interface Licenses to qualified licensees on terms to be
negotiated.
10.2.1 Motorola shall license on fair and equitable terms, to
qualified applicants who commit to promote iDEN, the
essential patents needed to implement in the United States
and Canada the interfaces listed in 10.2.3 below
("Interface Licenses").
10.2.2 Interface specifications shall include, but not be limited
to, written documentation, drawings, figures and plans
necessary to convey the information which will fully
delineate the requirements for iDEN interoperability.
Specifications will be provided from time to time in the
same level of details as could be expected in standards
documentation
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* Confidential portions omitted and filed separately with the Commission
pursuant to an application for confidential treatment pursuant to Rule 24b-2
under the Securities and Exchange Act of 1934, as amended.
such as [*] although the parties acknowledge that initially
such documents will not be up to such level. Motorola
technical support personnel shall be available on
reasonable request to provide timely answers to licensees
regarding the specifications.
10.2.3 THE BELOW INTERFACES HAVE BEEN FULLY DOCUMENTED AND ARE
AVAILABLE FOR LICENSING BY MOTOROLA: [*]
10.2.4 Motorola will, if there is bona fide interest to
manufacture from a reputable manufacturer with a commitment
on going forward or some other indication it will proceed,
write the [*] and make it available on terms similar to the
above interfaces for licensing.
10.2.5 Motorola shall provide to Customer a copy of the
documentation provided to Interface Licensees for
Customer's internal use only and subject to confidentiality
restrictions and other appropriate restrictions to protect
Motorola's intellectual property rights.
10.2.6 Infrastructure licensee(s) shall have the ability to
procure from Motorola, on reasonable commercial terms,
components (such as unique proprietary integrated circuits,
etc), subassemblies (including component boards), complete
assemblies, and software needed to produce iDEN product.
11.0 INTELLECTUAL PROPERTY INDEMNITY
11.1 Motorola shall defend Customer against a claim that
Motorola-manufactured products or latest unmodified release
of Software supplied hereunder infringe a U.S. patent or
U.S. copyright, provided that (i) Customer promptly
notifies Motorola in writing of the claim, (ii) Motorola
has sole control of the defense and all related settlement
negotiations, and (iii) Customer gives Motorola information
and assistance for the defense of all at Motorola's expense
provided, however, that Customer's failure to provide such
notice shall not relieve Motorola of liability under this
Section 14 except to the extent Motorola was prejudiced
thereby. Subject to the conditions and limitations of
liability stated in this Agreement, Motorola shall
indemnify and hold Customer harmless from all payments
which by final judgments in such suits may be assessed
against Customer on account of such infringement and shall
pay resulting settlements, costs and damages finally
awarded against Customer by a court of law.
11.2 Customer agrees that if Motorola-manufactured products or
Software become, or in Motorola's opinion are likely to
become, the subject of such a claim, Customer will permit
Motorola, at its option and expense, either to procure the
right for Customer to continue using such products or
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Confidential: Use or disclosure of this document is subject to the restriction
on the Confidentiality Statement
Software or to replace or modify same so that they become
non-infringing without affecting the function and
capability, and if neither of the foregoing alternatives is
available on terms which are reasonable in Motorola's
judgment, Customer can return Motorola-manufactured
products and/or Software for full credit on the entire
unusable portion thereof.
11.3 Motorola has no liability for any claim of patent or
copyright infringement to the extent based upon adherence
to specifications, designs or instructions furnished by
Customer, nor for any claim based upon the combination,
operation or use of any Motorola-manufactured products or
Software supplied hereunder with products, software or data
not supplied by Motorola, nor for any claim to the extent
based upon alteration of the products or modification of
any software supplied by entities other than Motorola.
12.0 CONFIDENTIALITY
12.1 From time to time during the performance of this Agreement,
the parties may deem it necessary to provide each other
with Confidential Information. The parties agree:
12.1.1 To maintain the confidentiality of such Confidential
Information and not disclose same to any third
party, except as authorized by the original
disclosing party in writing, or in connection with a
public or private debt or equity offering of
securities, or as required by law or a court or as
required for compliance with the federal securities
laws, provided no documents shall be given to the
Securities and Exchange Commission ("SEC") until
Motorola has had an opportunity to review them. Any
such information that Motorola believes is
confidential Customer will use its best efforts to
get confidential treatment from the SEC. Such
Confidential Information also includes oral and
visual Confidential Information.
12.1.2 To restrict disclosure of Confidential Information
to employees and technical, legal and financial
consultants who have a "need to know". Such
Confidential Information shall be handled with the
same degree of care which the receiving party
applies to its own confidential information but in
no event less than reasonable care.
12.1.3 To take precautions necessary and appropriate to
guard the confidentiality of Confidential
Information, including informing its employees and
consultants who handle such Confidential Information
that it is confidential and not to be disclosed to
others and as to all technical consultants obtain a
signed non-disclosure agreement consistent
therewith.
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Confidential portions omitted and filed separately with the Commission
pursuant to an application for confidential treatment pursuant to Rule 24b-2
under the Securities and Exchange Act of 1934, as amended.
12.1.4 That Confidential Information is and shall at all
times remain the property of the disclosing party.
No use of any Confidential Information is permitted
except as otherwise provided herein and no grant
under any proprietary rights is hereby given or
intended, including any license implied or
otherwise.
12.1.5 To use such Confidential Information only as
required in performance of this Agreement.
12.2 Except as may be required by applicable law, neither party
shall disclose to any third party the contents of this
Agreement, the Exhibits or any amendments hereto or thereto
for a period of [*] years from the date of execution
hereof without the prior written consent of the other
except as provided for in Section 12.1.1.
13.0 TRADEMARK AND PUBLICITY
Nothing contained in this Agreement shall be construed as conferring any
right to use any name, trademark or other designation of either party
hereto, including any contraction, abbreviation, or simulation of any of
the foregoing, in advertising, publicity or marketing activities. No
publicity, advertising, etc. with regard to this Agreement or the System
which mentions the other party shall be released without prior written
consent of the other party.
14.0 SHIPMENT, DELIVERY AND PACKING
14.1 Motorola may ship products at any time during the "Time Frame"
(the interval between the shipment/implementation date and the
completion date for a particular activity as set forth in the
Implementation Schedule) and may invoice Customer upon shipment as
provided in Section 6 of this Agreement. No shipment of products
during said Time Frame shall be considered early for purposes of
invoicing.
14.2 Customer shall select the carrier and notify Motorola in writing
or instruct Motorola to use the best available carrier or any
carrier as previously used by Customer, unless Customer notifies
Motorola not to use such carrier.
14.3 Motorola shall use all reasonable efforts to ship products
directly to the Site or Customer designated warehouse.
14.4 In the event that the Site or Customer designated warehouse is not
available to receive Equipment because Customer has not met its
obligations hereunder to receive the products when shipped,
Motorola, at its option, may ship said products to a warehouse in
or near the area as designated by Customer, and Customer shall
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Confidential: Use or disclosure of this document is subject to the restriction
on the Confidentiality Statement
bear the costs of warehousing, reloading, transporting,
off-loading and moving the products onto the Site when such Site
becomes available.
14.5 Shipping documentation shall be developed to the mutual
satisfaction of the parties. Shipping terms are FOB manufacturing
site or Motorola facility. The manufacturing site may be other
than a USA facility.
14.6 Motorola shall have the Equipment securely packed so as to
withstand numerous handlings and loading as appropriate for
inland, sea and/or air transportation. Motorola shall take
reasonable protective measures to protect Equipment from weather
and shock, considering the different shapes and special features
of the Equipment.
15.0 TITLE, INDEMNITY, INSURANCE
15.1 Good title, free and clear of all liens or other encumbrances to
the FNE and other Motorola provided products supplied hereunder
and risk of loss for all such products shall pass to Customer upon
delivery FOB point of shipment.
15.2 The above notwithstanding, title to Software and underlying
intellectual property rights (i.e., patents, copyrights,
proprietary and confidential information, and know-how) belonging
to Motorola or any other third party shall remain with Motorola or
such third party. This Agreement only grants a right to use such
Software.
15.3 All Equipment sold to Customer hereunder is new and Motorola will
provide any documents which may be reasonably requested by
Customer evidencing this fact.
15.4 DURING THE TERM OF THIS AGREEMENT THE PARTIES SHALL INDEMNIFY AND
HOLD HARMLESS EACH OTHER TOGETHER WITH THEIR DIRECTORS, OFFICERS,
AGENTS, EMPLOYEES, AFFILIATES AND SUBSIDIARIES FROM ANY AND ALL
LOSS, DAMAGE, EXPENSE, JUDGMENT, LIEN, SUIT, CAUSE OF ACTION,
DEMAND OR LIABILITY (COLLECTIVELY, "LOSS") FOR PERSONAL INJURY
(INCLUDING DEATH) AND TANGIBLE PROPERTY DAMAGE WHICH MAY BE
IMPOSED ON OR INCURRED BY ONE PARTY ARISING DIRECTLY OUT OF THE
INTENTIONAL MISCONDUCT OR NEGLIGENT ACTS OR OMISSIONS OF THE
OTHER, ITS AGENTS, SUBCONTRACTORS, OR EMPLOYEES DURING THE
PERFORMANCE OF ANY WORK HEREUNDER. THE INDEMNIFYING PARTY SHALL,
AT ITS SOLE EXPENSE, DEFEND ANY SUIT BASED UPON A CLAIM OR CAUSE
OF ACTION WITHIN THE FOREGOING INDEMNITY PROVISION AND SATISFY ANY
JUDGMENT THAT MAY BE RENDERED AGAINST THE OTHER RESULTING
THEREFROM, PROVIDED THAT THE INDEMNIFYING PARTY SHALL BE GIVEN (I)
PROMPT NOTICE OF ANY
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Confidential: Use or disclosure of this document is subject to the restriction
on the Confidentiality Statement
SUCH CLAIM OR SUIT; AND (II) FULL OPPORTUNITY TO DEFEND SUCH CLAIM
OR SUIT; PROVIDED, HOWEVER, THAT FAILURE TO PROVIDE SUCH NOTICE
SHALL NOT RELIEVE THE INDEMNIFYING PARTY OF LIABILITY UNDER THIS
SECTION EXCEPT TO THE EXTENT THE INDEMNIFYING PARTY WAS PREJUDICED
THEREBY. THE INDEMNIFIED PARTY MAY, AT ITS ELECTION, PARTICIPATE
IN THE DEFENSE OF ANY SUIT, AND SHALL COOPERATE FULLY IN DEFENDING
ANY CLAIM OR SUITS. THE INDEMNIFYING PARTY SHALL PAY ALL COSTS,
EXPENSES, AND REASONABLE ATTORNEY'S FEES INCURRED BY THE
INDEMNIFIED PARTY IN CONNECTION WITH ANY SUCH SUIT OR IN ENFORCING
THIS INDEMNITY PROVISION, PROVIDED A VALID CLAIM IS PRESENTED.
WITHOUT LIMITING THE FOREGOING PARAGRAPH, EACH PARTY SHALL
INDEMNIFY AND HOLD HARMLESS THE OTHER PARTY, ITS DIRECTORS,
OFFICERS, AGENTS, EMPLOYEES, AFFILIATES AND SUBSIDIARIES FROM ANY
AND ALL LOSS, AS DEFINED IN THAT PARAGRAPH, WHICH IS BASED UPON OR
ALLEGED TO ARISE FROM, ANY STATEMENT, REPRESENTATION, INFORMATION
OR OTHER COMMUNICATION MADE BY THE PARTY, ITS OFFICERS, EMPLOYEES,
UNDERWRITERS, OR AGENTS TO OFFEREES, PURCHASERS OR POTENTIAL
CUSTOMERS OF CUSTOMER STOCK OR OTHER SECURITIES, INCLUDING BUT NOT
LIMITED TO ANY STATEMENT, REPRESENTATION, INFORMATION OR OTHER
COMMUNICATION CONCERNING THIS AGREEMENT, THE IDEN SYSTEM,
SPECIALIZED MOBILE RADIO SYSTEMS OR TECHNOLOGY IN GENERAL AND
INCLUDING BUT NOT LIMITED TO ANY LOSS ARISING UNDER APPLICABLE
SECURITIES LAWS.
15.5 Customer and Motorola each shall be named as additional insured
under the other's comprehensive general liability policy for
claims arising out of work performed hereunder (which includes but
is not limited to product and public liability, property and all
risk insurance).
16.0 FORCE MAJEURE - EXCUSABLE DELAY
16.1 Neither party shall be liable for delays in delivery or
performance, or for failure to manufacture, deliver or perform
when caused by any of the following which are beyond the
reasonable control of the delayed party:
16.1.1 Acts of God, acts of the public enemy, acts or failures to
act by the other party, acts of civil or military
authority, governmental priorities and regulatory actions,
strikes or other labor disturbances, hurricanes,
earthquakes, fires, floods, epidemics, embargoes, war,
riots, delays in transportation, and loss or damage to
goods in transit, or;
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* Confidential portions omitted and filed separately with the Commission
pursuant to an application for confidential treatment pursuant to Rule 24b-2
under the Securities and Exchange Act of 1934, as amended.
16.1.2 Inability on account of causes beyond the reasonable
control of the delayed party or its suppliers to obtain
necessary products, components, services, or facilities.
16.2 In the event of any such delay, the date of delivery or
performance shall be extended for a period equal to the period of
time lost by reason of the delay. If any such delay lasts for more
than one hundred eighty (180) days, the parties shall consult with
one another for the purpose of agreeing upon the basis on which
the delayed party shall resume work at the end of the delay. If no
reasonable solution to the delay is available, then either party
may, by written notice, cancel that portion of the Agreement which
is delayed, and adjust the Agreement price appropriately.
17.0 TERMINATION
17.1 Either party may terminate this Agreement without liability by the
giving of notice, in accordance with Section 23, if (i) the other
makes a general assignment for the benefit of creditors or goes
into compulsory or voluntary liquidation, (ii) if a petition in
bankruptcy or under any insolvency law is filed by or against the
other and such petition is not dismissed within sixty (60) days
after it has been filed, or (iii) the other shall commit any
material breach of its obligations hereunder.
In the case of any material breach, neither party shall terminate
this Agreement unless and until the other shall have failed to
cure such breach within [*] after it shall have been served with a
notice, in accordance with Section 23, (i) stating the nature of
the breach, (ii) requiring that the breach be cured, and (iii)
stating its intention to terminate the Agreement if compliance
with the notice is not met.
17.2 The termination of this Agreement shall not affect or prejudice
any provisions of this Agreement which are expressly or by
implication provided to continue in effect after such termination.
17.3 If this Agreement is terminated, Motorola shall have the right to
determine whether any unfilled Purchase Orders, Project Orders or
Quoted Orders in existence at the time of such termination shall
be completed under the terms of this Agreement or cancelled.
18.0 LIMITATION OF LIABILITY
NEITHER PARTY, WHETHER AS A RESULT OF BREACH OF AGREEMENT, WARRANTY, TORT
(INCLUDING WITHOUT LIMITATION NEGLIGENCE), PATENT INFRINGEMENT, COPYRIGHT
INFRINGEMENT, OR OTHERWISE, SHALL HAVE ANY LIABILITY FOR INCIDENTAL OR
CONSEQUENTIAL
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* Confidential portions omitted and filed separately with the Commission
pursuant to an application for confidential treatment pursuant to Rule 24b-2
under the Securities and Exchange Act of 1934, as amended.
DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFIT OR REVENUES, LOSS
OF USE OF THE PRODUCTS OR ANY ASSOCIATED EQUIPMENT, COST OF CAPITAL, COST
OF SUBSTITUTE PRODUCTS, (EXCEPT REPLACEMENT PRODUCTS UNDER SECTIONS 9 AND
13), FACILITIES OR SERVICE, OR DOWNTIME COSTS OR CLAIMS OF THIRD PARTIES
TO THE FULL EXTENT SUCH MAY BE DISCLAIMED BY LAW.
19.0 ASSIGNMENT - RESALE OF EQUIPMENT
19.1 [*.] Resale of Equipment and assignment of software to any
Affiliate shall not require any consent or approval of Motorola.
Any sale-leaseback of equipment by the Customer [*] to provide
appropriate waivers.
19.2 [*.] Services outside the United States may be higher, and
Equipment may require upgrades at an additional charge to comply
with foreign laws.
19.3 The Agreement shall accrue to the benefit of and be binding upon
the parties hereto and any successor entity into which either
party shall have been merged or consolidated or to which either
party shall have sold or transferred all or substantially all its
assets. Specifically, Motorola may assign this Agreement, provided
that Motorola, Inc. shall remain liable for performance hereunder.
This Agreement shall not be otherwise assigned by either party
without the prior written consent of the other party. In
conjunction with any agreed to assignment of this Agreement,
Motorola agrees to license the assignee pursuant to the terms set
forth in Exhibit "F". A reasonable new Software License Fee may be
required of any successive owner of iDEN infrastructure Equipment.
19.4 Notwithstanding anything to contrary elsewhere in this Agreement,
Customer may pledge, mortgage or otherwise assign all or any
portion of this Agreement or any orders hereunder (or any
combination thereof) to one or more providers of debt or equity
financing (provided any such intended assignee is not a person or
entity listed on the United States Department of Commerce Denied
Parties List or to a person or entity residing in a country to
which export of the iDEN Equipment is prohibited under United
States law) upon terms and conditions satisfactory to Customer,
provided that (i) Customer will remain liable for all obligations
arising out of this Agreement, (ii) the assignee agrees in writing
that the terms and conditions of this Agreement shall apply to and
be binding upon the assignee to the same extent as Customer, to
the extent that the assignee is exercising any right under this
Agreement, (iii) in addition to any rights conferred on the
assignee, and Customer shall be treated as having placed the order
and paid for purchases for purposes of all rights and benefits
available to Customer under this Agreement.
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* Confidential portions omitted and filed separately with the Commission
pursuant to an application for confidential treatment pursuant to Rule 24b-2
under the Securities and Exchange Act of 1934, as amended.
19.5 Motorola retains the right to subcontract, in whole or in part,
any effort required to fulfill its obligations under this
Agreement, provided Motorola shall remain liable for performance
hereunder.
19.6 [*.]
20.0 SWITCH IN TECHNOLOGY
20.1 If Customer determines that iDEN technology is no longer
suited to its needs in part or in whole and consequently
commercially viable to provide reliable digital dispatch,
short message service, voice interconnect, circuit switched
data and packet data services, Customer shall give notice
of such determination to Motorola describing, with
reasonable specificity any technology failure(s) and/or the
reasons for Customer's determination at least six (6)
months in advance of any public announcement or formal
contract to purchase alternate technology ("Alternate
Technology").
20.2 In the case of a switch to an Alternate Technology that
Motorola manufactures or elects to manufacture, Customer
shall give Motorola the opportunity to supply Fifty Percent
(50%) of Customer's needs of the Alternate Technology for
infrastructure equipment of the Alternate Technology for a
period of three (3) years following a public announcement
to change the technology.
20.3 If Customer makes a switch to Alternate Technology and
Customer fails to maintain operational iDEN infrastructure
equipment at the majority of its commercial cell sites
deployed at the date such switch is first publicly
announced, all financing outstanding by Motorola or its
affiliates to Customer and its wholly owned or controlled
subsidiaries shall become immediately due and payable upon
written notice by Motorola to Customer.
20.4 If there is a Switch in Technology, the provisions of
Section 7.17 of the Agreement and Plan of Contribution and
Merger among Nextel Communications, Inc., Motorola, Inc.,
ESMR, Inc., and ESMR SUB, Inc. dated August 4, 1994 shall
apply and shall not in any manner be superceded by this
Agreement.
21.0 GOVERNING LAW
The validity, performance, and all matters relating to the effect of this
Agreement and any amendment hereto shall be governed by the laws of state
of Illinois without regard to its conflicts of laws provisions.
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* Confidential portions omitted and filed separately with the Commission
pursuant to an application for confidential treatment pursuant to Rule 24b-2
under the Securities and Exchange Act of 1934, as amended.
22.0 ORDER OF PRECEDENCE
In the event of an inconsistency in this Agreement, the inconsistency
shall be resolved by giving precedence in the following order:
22.1 This Agreement and duly executed amendments thereto, with the
latest amendment precedence over earlier amendments;
22.2 The Price Book, as may be amended from time to time by Motorola;
22.3 Purchase Orders and duly executed Change Orders thereto, with the
latest Change Order taking precedence over earlier Change Orders;
22.4 Project Orders and duly executed Change Orders thereto, with the
latest Change Order taking precedence over earlier Change Orders;
22.5 Quoted Orders and duly executed Change Orders thereto, with the
latest Change Order taking precedence over earlier Change Orders;
22.6 Exhibit "F" and all duly executed Amendments to Exhibit "F";
22.7 All other Exhibits in alphabetical order and all duly executed
Amendments or Change Orders to said Exhibits.
Purchase Orders will be used only to identify the quantity and location
for Equipment, Software or Services ordered. No other terms and
conditions on such Purchase Orders shall apply, and the terms and
conditions herein shall control.
23.0 NOTICE
23.1 Notices required to be given by one party to another shall be
deemed properly given if reduced to writing and personally
delivered or transmitted by recognized express mail, by registered
or certified post to the address below, postage prepaid, or by
facsimile with a confirmation of transmission printed by sender's
facsimile machine, and shall be effective upon receipt.
23.1.1 Motorola shall send notices as follows:
Nextel Communications, Inc.
1505 Farm Credit Drive
McLean, VA 22102
Attention: Chief Technology Officer
[*]
With a copy to the attention of Customer's General Counsel.
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* Confidential portions omitted and filed separately with the Commission
pursuant to an application for confidential treatment pursuant to Rule 24b-2
under the Securities and Exchange Act of 1934, as amended.
23.1.2 Customer shall send notices as follows:
Motorola, Inc.
iDEN Infrastructure Division
1301 East Algonquin Road
Schaumburg, Illinois USA 60196
Attention: General Manager
[*]
With a copy to:
Motorola, Inc.
iDEN Infrastructure Division
1301 East Algonquin Road
Schaumburg, Illinois 60196
Attention: Director, Contracts and Licensing [*]
23.2 Either party may change the addresses for giving notice from time
to time by written instructions to the other of such change of
address.
24.0 SURVIVAL OF PROVISIONS
The parties agree that where the context of any provision indicates an
intent that it shall survive the term of this Agreement then it shall
survive.
25.0 COVENANT NOT TO SOLICIT EMPLOYMENT
The parties hereto agree that during the period of time beginning with
the execution of this Agreement and ending with the termination of this
Agreement, neither party shall solicit any employee of the other involved
in providing engineering, installation, integration, maintenance, and/or
warranty service or to encourage such employee to work for the other. If,
at any time, this provision is found to be overly broad under the laws of
an applicable jurisdiction, this provision shall be modified as necessary
to conform to such laws rather than be stricken herefrom.
26.0 GENERAL
Failure or delay on the part of Motorola or Customer to exercise any
right, power, or privilege hereunder shall not operate as a waiver. If
any provision of this Agreement is contrary to, prohibited by or held
invalid by any law, rule, order, or regulation of any government or by
the final determination of any state or federal court, such invalidity
shall not affect the enforceability of any other provisions not held to
be invalid. Section and paragraph headings used in this Agreement are for
convenience only and are not to be used to construe the provisions of
this Agreement.
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* Confidential portions omitted and filed separately with the Commission
pursuant to an application for confidential treatment pursuant to Rule 24b-2
under the Securities and Exchange Act of 1934, as amended.
27.0 AUTHORITY
Each party hereto represents and warrants that:
27.1 It has obtained all necessary approvals, consents and
authorizations of third parties and governmental authorities to
enter into this Agreement and has obtained or will obtain all
necessary approvals, consents and authorizations of third parties
and governmental authorities to perform and carry out its
obligations hereunder;
27.2 The persons executing this Agreement on its behalf have express
authority to do so, and, in so doing, to bind the party thereto;
27.3 The execution, delivery, and performance of this Agreement does
not violate any provision of any bylaw, charter, regulation, or
any other governing authority of the party; and;
27.4 The execution, delivery, and performance of this Agreement has
been duly authorized by all necessary partnership or corporate
action and this Agreement is a valid and binding obligation of
such party, enforceable in accordance with its terms.
28.0 TERM
The term of this Agreement shall be from January 1, 1999 until [*] unless
an Exhibit provides otherwise.
29.0 RE-EXPORTATION OF TECHNICAL DATA OR PRODUCTS
Customer understands that all equipment, proprietary data, know-how,
software, or other data or information obtained by Customer from Motorola
is considered to be United States technology and is licensed for export
and re-export by the United States Government. Customer therefore agrees
that it will not, without the prior written consent of Motorola and the
Office of Export Control, United States Department of Commerce,
Washington, DC 20230, USA, knowingly export, re-export, or cause to be
exported or re-exported, either directly or indirectly, any such
equipment, proprietary data, know-how, software, or other data or
information, or any direct or indirect product thereof, to any
destination prohibited or restricted under United States law. Customer
understands that the list of prohibited or restricted destinations may be
amended from time to time by the United States Department of Commerce and
that all such amendments shall be applicable to this Agreement.
30.0 DISPUTES AND DISPUTE RESOLUTION
Motorola and Customer will attempt to settle any claim or controversy
arising out of this Agreement through consultation and negotiation in
good faith and a spirit of mutual
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Confidential: Use or disclosure of this document is subject to the restriction
on the Confidentiality Statement
cooperation. If those attempts fail, then, except for disputes related to
alleged patent, copyright, or trademark infringement, the dispute will be
mediated by a mutually acceptable mediator to be chosen by Motorola and
Customer within thirty (30) days after written notice by the other
demanding mediation. Neither party may unreasonably withhold consent to
the selection of a mediator, and Motorola and Customer will share the
costs of the mediation equally. Venue for mediation shall be the United
States of America. By mutual agreement, however, the parties may postpone
mediation until they have each completed some specified but limited
discovery about the dispute. The parties may also agree to replace
mediation with some other form of alternative dispute resolution (ADR),
such as neutral fact-finding or a mini-trial.
Any dispute which the parties cannot resolve through negotiation,
mediation, or other form of ADR within four (4) months of the date of the
initial demand for it may then be submitted to the Federal District Court
of Delaware for resolution. The use of any ADR procedures will not be
construed under the doctrines of latches, waiver, or estoppel to affect
adversely the rights of either party. And nothing in this section will
prevent either party from resorting to judicial proceedings if (a) good
faith efforts to resolve the dispute under these procedures have been
unsuccessful or (b) interim relief from a court is necessary to prevent
serious and irreparable injury to one party or to others.
31.0 LANGUAGE
The definitive text of this Agreement and its Exhibits shall be in
English and all communications between the parties in the course of the
present Agreement shall be made in English.
32.0 GOVERNMENT CONTRACTS
In the event that Customer elects to provide goods or services to a
Governmental Entity (defined herein), Customer does so solely at its
option and risk and agrees not to obligate Motorola as a subcontractor or
otherwise to such Governmental Entity. Customer remains solely and
exclusively responsible for compliance with all statutes, regulations,
and provisions governing sales to such entity. Motorola makes no
representations, certifications, or warranties whatsoever with respect to
the ability of its goods, services, or prices to satisfy any statues,
regulations, or provisions governing sales of goods or services to such
Governmental Entity. The term "Governmental Entity" as used above
includes any United States federal, state, or local government, agency,
or instrumentality as well as any non-United States government, agency,
or instrumentality.
33.0 SEVERABILITY
In the event that any one or more of the provisions contained in the
Agreement or in any of the Exhibits hereto should be determined to be
invalid, illegal, or unenforceable in any respect, the validity,
legality, and enforceability of the remaining provisions shall not in any
way be affected or impaired. The parties shall endeavor in good faith to
replace any
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Confidential: Use or disclosure of this document is subject to the restriction
on the Confidentiality Statement
invalid, illegal, or unenforceable provision with a valid provision, the
economic effect of which comes as close as possible to that of the
invalid, illegal, or unenforceable provision.
34.0 ENTIRE AGREEMENT
This Agreement and the Exhibits hereto constitute the entire
understanding between the parties concerning the subject matter hereof
and supersede all prior discussions, agreements, and representations,
whether oral or written, and whether or not executed by Motorola and
Customer. The subject matter of this Agreement is iDEN Infrastructure
Equipment purchases. Documents or agreements relating to Motorola's
equity in Customer, Customer's purchases of Subscriber Equipment or
Motorola financing agreements are not superseded by this Agreement. The
Equipment and Services purchased on or before December 31, 1998 under the
terms and conditions of the parties' Enhanced Specialized Mobile Radio
System Equipment Purchase Agreement dated as of November 4, 1991 as
heretofore amended shall be governed by such agreement. The terms and
conditions for use of all Software, whenever purchased, shall be as set
forth in this Agreement. All Equipment, Software and Services purchased
after January 1, 1999 shall be governed by the terms and conditions of
this Agreement.
No modification, Amendment, Change Order, or other change may be made to
this Agreement or any Exhibit unless reduced to writing and executed by
authorized representatives of both parties.
The terms and conditions of this Agreement shall prevail notwithstanding
any variance with the terms and conditions of any order submitted by
Customer following execution of this Agreement. In no event shall the
preprinted terms and conditions found on any Customer purchase order,
acknowledgment, a Change Order, or other form be considered an Amendment,
or modification of this Agreement, even if such documents are signed by
representatives of both parties. Such preprinted terms and conditions
shall be null and void and of no force and effect.
35.0 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.
36.0 COMMENCEMENT OF WORK
Motorola's obligations to commence work hereunder shall begin upon the
date which Purchase Orders are acknowledged by Motorola or Project Orders
or Quoted Orders are signed and delivered to both parties. All time
periods for completion of Motorola's obligations shall commence on such
date.
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Confidential: Use or disclosure of this document is subject to the restriction
on the Confidentiality Statement
THIS AGREEMENT IS EFFECTIVE AS OF THE 1ST DAY OF JANUARY, 1999 ("EFFECTIVE
DATE").
MOTOROLA, INC. NEXTEL COMMUNICATIONS, INC.
By: By:
------------------------------------ ------------------------------------
(Authorized Signatory) (Authorized Signatory)
Name Name
------------------------------------ ------------------------------------
Title: Title:
------------------------------------ ------------------------------------
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* Confidential portions omitted and filed separately with the Commission
pursuant to an application for confidential treatment pursuant to Rule 24b-2
under the Securities and Exchange Act of 1934, as amended.
EXHIBIT LIST
EXHIBIT "A" PROJECT ORDER FORM
EXHIBIT "B" TECHNICAL OVERVIEW: NOTES ON THE iDEN SYSTEM [*.]
EXHIBIT "C" SYSTEM PERFORMANCE CRITERIA AND ACCEPTANCE TEST PLAN
EXHIBIT "D" IMPLEMENTATION ENGINEERING, SITE PREPARATION, INSTALLATION AND
INTEGRATION
EXHIBIT "E" SYSTEM MAINTENANCE
EXHIBIT "F" OBJECT-CODE COMPUTER PROGRAM LICENSE
EXHIBIT "G" TRAINING
EXHIBIT "H" DOCUMENTATION
EXHIBIT "I" ANNUAL VOLUME REBATE
EXHIBIT "J" DNUP MULTIPLIER RANGES AND NEXTEL DNUP MULTIPLIER
EXHIBIT "K" SMP PRO FORMA ANALYSIS
EXHIBIT "L" PRICE BOOK, [*]
EXHIBIT "M" LISTING OF "YEAR 2000 COMPLIANT" PRODUCTS
EXHIBIT "N" IPL FEES PER SUBSCRIBER
EXHIBIT "O" SMP PROPOSAL
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