EXHIBIT 10.21
AMENDMENT NO. 1 to SUPPLY AGREEMENT
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BETWEEN GRUPO IUSACELL CELULAR S.A. DE C.V.
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AND METAWAVE COMMUNICATIONS CORPORATION
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This Amendment No. 1 is made as of August 16, 2000 to the Supply Agreement by
and between Grupo Iusacell Celular S.A. de C.V . ("Customer") (previously named
Grupo Iusacell S.A. de C.V.) and Metawave Communications Corporation ("Seller"),
dated December 17, 1999 (the "Agreement"). All defined terms used in this
Amendment shall have the same meanings as in the Agreement, unless otherwise
indicated.
WHEREAS, Customer has agreed to purchase [*] of Products from Seller for
delivery by [*] pursuant to the Agreement;
WHEREAS, Seller has agreed to provide to Customer amended financial terms for
payment of those Products, provided that [*]
WHEREAS both parties wishes to amend several Sections of the Agreement in order
to read as follows.
NOW, THEREFORE, THE PARTIES AGREE:
1. Section 3(e) of the Agreement is replaced in its entirety by the following:
Customer may cancel or delay delivery of Products contained in any Purchase
Order or Change Order prior to Seller's shipment of the Products subject to
the terms herein. Any such cancellation or delay must be made by written
notification to Seller. Customer may delay the delivery date for any
Products on any Purchase Order or Change Order, provided that such delay
shall not exceed [*] days. Customer endeavors not to cancel or delay any
Purchase Order or Change Order with less than [*] days written notice from
the delivery date specified in the Purchase Order or Change Order.
2. Section 4(a) of the Agreement is replaced in its entirety by the following:
Subject to Section 3, Seller shall ship in accordance with Seller's
standard shipping practices all Products to Customer's designated
representative at the designated delivery destination on or before the
delivery date(s) specified in a Purchase Order. Seller shall ship complete
Products to Laredo, Texas as specified by Customer in the Purchase Order or
otherwise agreed in writing by Customer and Seller. If any Products
require temporary warehousing in Laredo as a result of incomplete
shipments, or by any direct or indirect acts or omissions attributable to
Seller (i.e. documents incomplete or inaccurate), Seller shall bear all
costs and expenses of such warehousing. Seller shall not be responsible
for shipping Products into Mexico or for any compliance with Mexican import
or customs requirements, other than those necessary for the Customer to
import the Products
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into Mexico, including documentation required by the North American Free
Trade Agreement.
[*]
3. Section 4(d) of the Agreement is replaced in its entirety by the following:
Title to and risk of loss or damage to Products sold by Seller to Customer
hereunder shall pass to Customer upon delivery to Customer's representative
at the delivery destination specified on the Purchase Order, except that
with respect to Products which are warehoused pursuant to section 4(a)
hereof as a result of incomplete shipment or documentation, title and risk
of loss shall pass to Customer when the Products and related documentation
are complete. Title to Software shall remain with Seller in all cases
pursuant to the terms of the Software License attached as Exhibit D hereto.
4. Section 5(a) of the Agreement is replaced in its entirety by the following:
In the event that Customer orders installation and commissioning services
by Seller, Seller shall install and commission each Product in accordance
with a mutually agreed upon deployment schedule. Customer agrees to furnish
reasonable access to the cell sites and the necessary resources to assist
Seller during installation and optimization. Such deployment schedule shall
be agreed to in writing by Seller and Customer.
5. Section 5(b) of the Agreement is replaced in its entirety by the following:
If Seller fails to complete installation and commissioning of a Product
within the specified deadline (or any extension agreed to in writing by the
parties), and such failure is due to delays or causes directly or
indirectly attributable to Seller, then Seller will not charge Customer for
the installation and commissioning of that Product at the designated site.
In the event of any delay beyond the reasonable control of Seller, the
date(s) of installation and commissioning shall be extended for as many
days as are reasonably required due to the delay.
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6. Section 5(c) is replaced in its entirety by the following:
If requested by Customer, Seller will offer Product training courses at
Seller's own expense in Mexico at least 3 times per quarter during the
period September 1, 2000 to September 30, 2001. Each course will last no
more than three days and will be for a minimum of five people and no more
than ten people. The schedule will be mutually agreed by the parties. In
addition, employees of Customer may train on an informal basis by observing
and participating during installation and optimization of Products when
such services are provided by Seller. Seller will provide at no cost to
Customer one set of manuals and documentation with each Product.
7. Section 6(a) of the Agreement is replaced in its entirety by the following:
Customer has agreed to purchase an amount [*] of Products pursuant to the
terms and conditions set forth in the "Whereas" clauses of this Agreement.
For Products to be installed by Seller, Seller shall render invoices to
Customer as follows: [*]
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8. Section 6(b) of the Agreement is replaced in its entirety by the following:
All invoices issued pursuant to Section 6(a) shall be computed on the basis
of the prices set forth in Exhibit A [*] and shall separately identify
categories of charges, including but not limited to quantities of Products,
type of Services, total amounts for each item, shipping charges, applicable
sales or use taxes and total amount due in U.S. dollars.
For Products purchased pursuant to the terms and conditions set forth in
the "Whereas" clauses of this Amendment, Customer shall promptly pay Seller
the amount due on invoices within [*] of the date of invoice. For all
Services purchased by Customer and performed by Seller in the year 2000
which are related to the Products purchased pursuant to the terms and
conditions set forth in the "Whereas" clauses of this Amendment, and for
which Customer has signed a Commissioning Certificate or an Engineering and
Optimization Certificate, Seller shall invoice Customer [*]
9. Section 6(c) is replaced in its entirety by the following:
The prices specified in Exhibit A do not include any taxes. Customer shall
pay all local and government sales, excise, or any other taxes, fees,
duties, tariffs, or other governmental charges or customs processing fees
which may be levied upon the use, sale, transfer of ownership, or
installation of Product or Services purchased hereunder or the import,
movement, delivery, possession of Products, including the replacement and
repair of Products, excluding, however, any taxes on the income, business
or licenses of Seller. Any such taxes or fees required to be paid or
collected by Seller shall be added to the invoice as separate charges and
paid by Customer to Seller unless Customer provides Seller with proof of
exemption acceptable to the appropriate authority or in the event that
Customer must withhold payment pursuant to the provisions of the Mexican
Income Tax Law and/or the Treaty for Avoiding Double Taxation between
Mexico and the United States (in which case Customer shall provide Seller
with appropriate documentation so that Seller can claim any tax credit to
which it may be entitled).
10. Section 7(a) is replaced in its entirety by the following:
Seller warrants the Products for a period of [*] ("Warranty Period").
During the Warranty Period, Seller warrants that (i) all Products furnished
hereunder will be
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free from defects in materials, workmanship and title; (ii) all Products as
delivered and properly installed and operated will function as described in
the user documentation and specifications provided by Seller; and (iii) the
media on which the Software is contained will be free from defects in
material and workmanship under normal use. THE WARRANTIES IN THIS
AGREEMENT ARE GIVEN IN LIEU OF ALL OTHER WARRANTIES EXPRESS OR IMPLIED
WHICH ARE SPECIFICALLY EXCLUDED, INCLUDING, WITHOUT LIMITATION, IMPLIED
WARRANTIES OF MERCHANTIBILITY AND FITNESS FOR A PARTICULAR PURPOSE.
11. Section 7(b) is replaced in its entirety by the following:
Customer and Seller shall handle all warranty claims in accordance with the
procedures set forth in Exhibit C, the Product Maintenance Program. The
actions taken by Seller under the Product Maintenance Program procedures
shall be the full extent of Seller's liability and Customer's exclusive
remedy with respect to a claim under this Section 7. The supplied
Products provided hereunder by Seller to Customer (i) shall perform on
and after January 1, 2000 in as good a manner as before such date, and (ii)
shall at all times manage, manipulate and report data involving dates
(including the year 2000, dates before and after the year 2000, and single-
century and multi-century formulas) without generating incorrect values or
dates or causing an abnormally-ending scenario within an application
without generating incorrect values or dates or causing an abnormally-
ending scenario within an application. Notwithstanding the above, Seller
shall be liable to Customer for warranty claims under this Section up to an
amount equal to the Purchase Order.
12. Section 8(a) is replaced in its entirety by the following:
Seller shall indemnify and hold harmless Customer against any and all
liabilities, losses, costs, damages and expenses, including reasonable
attorney's fees, associated with any claim or action for actual or alleged
infringement by any Product or Software supplied in accordance with this
Agreement of any patent, trademark, copyright, trade secret or other
intellectual property right incurred by Customer as a result of Customer's
use of such Products or Software in accordance with this Agreement provided
that (i) Customer promptly notifies Seller in writing of the claim; (ii)
Customer gives Seller full opportunity and authority to assume sole control
of the defense and all related settlement negotiations; and (iii) Customer
gives Seller information and assistance for the defense (Customer will be
reimbursed for reasonable costs and expenses incurred in rendering such
assistance, against receipt of invoices therefor) and (iv) such claim or
action for actual or alleged infringement is being pursued or carried out
by third parties with whom Seller, its parent, branches, subsidiaries,
affiliates or any entity over which Seller has control, directly or
indirectly, has any contractual relationship of any type. Seller shall
indemnify and hold harmless Customer from
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all payments, which by judgments in such claims, may be assessed against
Customer on account of such alleged infringement and shall pay resulting
settlements, costs and damages finally awarded against Customer by a court
of law, arbitration or other adjudication of the claim.
13. Section 8(c) is replaced in its entirety by the following:
Seller shall have no obligation to Customer with respect to any claim of
patent or copyright infringement which is based upon (i) adherence to
specifications, designs or instructions furnished by Customer; (ii) the
combination, operation or use of any Products supplied hereunder with
products, software or data with which the Products are not intended to be
used or for which the Products are not designed; (iii) the alteration of
the Products or modification of any Software made by any party other than
Seller; or (iv) the Customer's use of a release of some or all of the
Software if infringement would have been avoided by the use of a subsequent
unaltered release of the Software that is provided to the Customer.
14. Section 9(a) is replaced in its entirety by the following:
Seller shall indemnify Customer, its employees and directors, and each of
them, against any loss, damage, claim, or liability, arising out of, as a
result of, or in connection with the use of the Product in accordance with
this Agreement or the acts or omissions, negligent or otherwise, of Seller
in the performance of this Agreement, or a contractor or an agent of Seller
or an employee of anyone of them, except where such loss, damage, claim, or
liability arises from the gross negligence or willful misconduct of
Customer, agents or its employees. Seller shall, at its own expense,
defend any suit asserting a claim for any loss, damage or liability
specified above, and Seller shall pay any costs, expenses and attorneys'
fees that may be incurred by Customer in connection with any such claim or
suit or in enforcing the indemnity granted above, provided that Seller is
given (i) prompt notice of any such claim or suit and (ii) full opportunity
to assume control of the defense or settlement.
15. Section 9(b) is replaced in its entirety by the following:
Except with respect to claims pursuant to Section 8(a) of this Agreement,
in no event will either party be liable under this Agreement for (i) the
cost of substitute procurement, special, indirect, incidental, or
consequential damages, or (ii) any damages resulting from the loss of use
or profits arising out of or in connection with this Agreement, the
furnishing of Services, or the use or performance of Products even if
informed of the possibility of such damages. Except for damages resulting
from bodily injury or death to persons, and claims arising under Section
8(a) of this Agreement, in no event will Seller's total liability for (i)
any damages in any action based on or arising out of or in connection with
this Agreement exceed the total amount paid to Seller for such Products
under this Agreement, or
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(ii) claims based upon Seller's obligations for Services exceed the total
amount paid to Seller for such Services.
16. Section 11(a) is replaced in its entirety by the following:
Any assignment by either party to this Agreement or any other interest
hereunder without the other party's prior written consent, shall be void,
except assignment to a parent company, subsidiary or person or entity who
acquires all or substantially all of the assets, business or stock of
either party, whether by sale, merger or otherwise provided that the
assignee undertakes in writing to be obliged by the provisions of the
Agreement, as amended.
17. Section 12 is amended as follows:
"....To Customer: Grupo Iusacell Celular S.A de C.V.... Attn: Henry
Ruiz..."
18. Section 14(c) is replaced in its entirety by the following:
When Customer imports the Products into Mexico, Customer shall comply with
all importation formalities and obtain any customs or regulatory permits
required to import the Products into Mexico, including but not limited to
NOM certificates issued by the Mexican Government through the Mexican
Ministry of Commerce and Industrial Development relating to the compliance
with electrical safety standards (NOM certificate). Seller agrees to
indemnify Customer, its employees and directors, and each of them, against
any loss, damage, claim or liability arising out of or as a result of, or
in connection with the issuance of the NOM certificate to, and the holding
or maintenance of the NOM certificate by, Customer except where such loss,
damage, claim or liability arises from the gross negligence or willful
misconduct of Customer, its agents or employees. Seller shall, at its own
expense, defend any suit asserting a claim for any loss, damage or
liability specified above, and Seller shall pay any costs, expenses and
attorney's fees that may be incurred by Customer in connection with any
such claim or suit or in enforcing the indemnity granted above, provided
that Seller is given (i) prompt notice of any such claim or suit and (ii)
full opportunity to assume control of the defense or settlement.
In addition, Seller shall be responsible for maintaining the
Products'compliance with applicable NOM standards and for conducting
additional testing if needed to maintain the NOM certificate. Customer and
Seller agree that the NOM certificate shall only be issued by Customer as
the importer of Products for its own use, and that Seller shall not rely on
the NOM certificate issued to Customer for importation on behalf of Seller
or any other purchaser of the Products in Mexico.
19. Section 15 is replaced in its entirety by the following:
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Except for payment of moneys due, neither party shall be liable for delays
in delivery or performance or for failure to manufacture, deliver or
perform resulting from acts beyond the reasonable control of the party
responsible for performance. Such acts shall include, but not be limited
to (a) acts of God, acts of a public enemy, acts or failures to act by the
other party, acts of civil or military authority, governmental priorities,
strikes or other labor disturbances, hurricanes, earthquakes, fires,
floods, epidemics, embargoes, war, riots, and loss or damage to goods in
transit; (b) as a result of the foregoing events in subsection (a), the
inability to obtain necessary products, components, services or facilities
on account of causes beyond the reasonable control of the delayed party or
its suppliers; or (c) delay in obtaining or the failure to obtain the
necessary customs clearances, equipment authorizations, licenses, permits,
governmental approvals and any other documentation required for the
delivery, installation and operation of the Products at the Sites,
including visas and work permits for Seller's personnel. In the event of
any such delay, the date(s) of delivery or performance shall be extended
for as many days are reasonably required due to the delay. If such delay
continues for forty-five (45) days, either party may terminate the Purchase
Order affected by the event by providing written notice. Notwithstanding
the above, if the force majeure event could have been avoided by the prompt
fulfillment of the obligations of the parties, it will not be considered as
an event of force majeure.
20. Section 16(b) is amended as follows:
"Any dispute, controversy or claim arising out of or in connection with
this Agreement, as amended, shall first be settled by non-binding mediation
to be conducted in English by a mutually agreed non-affiliated neutral
party. This mediation process shall commence within the next ten (10) days
following the notification of the claim and shall be completed within the
twenty (20) days following the notification of the claim. In the event
mediation is unsuccessful or is not carried out for any reason within the
above-referred time limits, the matter shall be finally settled by binding
arbitration in New York, New York, under the rules of the International
Chamber of Commerce in effect at the time of the arbitration to be
conducted in English. The arbitration decision shall be final and binding
upon the parties and judgment upon the award rendered by the arbitrator may
be entered in any court having jurisdiction thereof. Notwithstanding the
above, regarding intellectual property claims, Metawave reserves the right
to initiate and conduct litigation proceedings in any court it deems
appropriate.
21. A new Section 20 is added to the Agreement as follows:
SECTION 20. ADDITIONAL OBLIGATIONS OF SELLER
a. Seller shall [*]
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b. Seller shall [*]
1. [*] to coordinate all RF activities relating to Customer's
Products, make recommendations to Customer for current and future
Product applications and manage technical issues arising from
Product installations and optimizations. This [*] may be extended
by mutual agreement of the parties.
2. [*] to develop RF plans, perform initial optimization on Products
after installation and perform the initial and ongoing evaluation
of Product performance statistics.
3. [*] to coordinate all logistics, including shipping, installing
and optimizing Customer's Products.
4. [*] to perform routine maintenance on Customer's Products and
perform troubleshooting functions. These engineers will be
dedicated to working [*] on Customer's Products and will be
charged to Customer pursuant to [*]. Such services will be
invoiced upon completion of the services and shall be payable
within [*] days of the date of invoice.
c. Seller may use the above personnel (except for the maintenance
engineers whose time is charged to customers) on other non-Customer
projects provided that such redeployment does not affect service
quality to Customer.
d. [*] Seller shall provide Customer with a written procedure for
submitting, tracing and resolving technical Product problems,
including Product modifications and bug fixes. Such procedures shall
include an escalation procedure.
e. Seller agrees to discuss with Customer the possibility of Seller
providing turnkey services to Customer which would include site
preparation, RF engineering services and antenna installation. Such
services, if offered, would be invoiced upon completion of the
services and be payable within [*] of the date of invoice.
f. Seller will provide a monitoring and alarm facility within Customer's
network operations center (NOC) for all Products that have SiteNet
installed and operational at a price to be mutually agreed by the
parties.
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22. Exhibit A of the Agreement is amended as follows:
[*]
23. All other terms and conditions of the Agreement remain the same.
Metawave Communications Corporation Grupo Iusacell Celular S.A. de C.V.
By: /s/ Richard Henderson By: /s/ Henry Ruiz
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Name: Richard Henderson Name: Henry Ruiz
Title: VP, Sales and Marketing Title: VP, Network Operations
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