EXHIBIT 10.9
360 degrees PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (this "Agreement") is made as of this 21st day of
October, 1997 (the "Effective Date") between Metawave Communications
Corporation, a Delaware corporation ("Seller"), and 360 COMMUNICATIONS COMPANY,
a Delaware corporation (the "Company").
The parties, in consideration of the mutual covenants, agreements and
promises of the other set forth in this Agreement and intending to be legally
bound, agree as follows:
1. AGREEMENT
Seller agrees to manufacture, sell and deliver to the Company, and the
Company agrees to purchase, the Products identified in Exhibit A to this
Agreement (the "Initial Order") in accordance with the specifications and the
terms and conditions hereof. As part of the Initial Order, Seller agrees to
provide and the Company agrees to purchase, the Services identified in Exhibit A
to this Agreement. Notwithstanding any other provision of this Agreement or any
other contract between the parties to the contrary, the provisions of this
Agreement shall apply to the Initial Order as well as all additional Orders for
the Products in excess of the Initial Order (the "Additional Orders") during the
term of this Agreement unless the parties expressly agree by written
modification to this Agreement that the provisions of this Agreement shall not
apply. ANY ADDITIONAL OR DIFFERENT TERMS IN ANY ACKNOWLEDGMENT, INVOICE OR
OTHER COMMUNICATION TO THE COMPANY SHALL BE DEEMED OBJECTED TO BY THE COMPANY
WITHOUT NEED OF FURTHER NOTICE OF OBJECTION AND SHALL BE OF NO EFFECT AND NOT IN
ANY CIRCUMSTANCE BINDING UPON THE COMPANY UNLESS EXPRESSLY ACCEPTED BY THE
COMPANY IN WRITING.
2. DEFINITIONS
As used in this Agreement, the following terms shall have the meanings set
forth below:
"Acceptance Test Procedure" shall mean the testing procedures and protocols
described and administered as set forth in Exhibit C.
"Certification of Acceptance" shall mean the Company's certification of
Seller's satisfactory completion of the Acceptance Test Procedure in the form
set forth in Exhibit C.
"Order" shall mean this Agreement, together with any purchase order or
other communication the Company may deliver to Seller for the purchase of the
Products and Services which incorporates the terms and conditions of this
Agreement and which has been accepted by Seller.
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"Products" shall mean the products listed on Exhibit A hereto and the
Software referenced in Exhibit E or any additional products set forth in any
amendments to Exhibit A or E as may be subsequently agreed to from time to time
by Seller and the Company or in an Order.
"Purchase Price" shall mean the price of the Products shown on Exhibit A
attached hereto and incorporated herein or any other amount set forth in any
amendments to Exhibit A as may be subsequently agreed to from time to time by
Seller and the Company.
"Software" shall mean the object-code computer programs, including firmware
object code, licensed by Seller for use solely with the Products which enables
the Products to perform its functions and processes.
"Software License" shall mean the software license for the software to be
delivered to the Company for use with the Products set forth in Exhibit E.
"Specifications" shall mean the specifications for the Products set forth
in Exhibit B attached hereto and incorporated herein.
3. PURCHASE PRICE
The Purchase Price(s) for the Products set forth in Exhibit A are no higher
than the prices quoted by Seller to the Company in Seller's written bid
therefor, unless agreed to by the Company in writing.
4. DELIVERY OF PRODUCTS
All dates for delivery of Products are firm, and time is of the essence.
Seller shall deliver the Products in the Initial Order to the Company's
designated location on or before the date(s) specified in Exhibit A hereto, or
to the location on or before the date specified in an Order, failing which
Seller shall pay to the Company a charge, for every [***] of delay, equal to the
rate of [***] of the Purchase Price of the Products which have been delayed,
such charge to begin to accrue [***] after the date specified for delivery.
Such charges shall not exceed in the aggregate [***]. In the event that the
delivery of an Order is delayed more than [***] beyond the delivery date
specified in such Order, Customer shall have the right to cancel such Order
without penalty.
5. SHIPPING INSTRUCTIONS, CHARGES AND PACKING
a. Unless otherwise instructed by the Company, Seller shall (1) ship all
Products for a designated location complete; (2) ship to the destination
designated in Exhibit A or in an Order; (3) enclose a packing memorandum with
each shipment; (4) reference this Agreement on all packages and shipping papers;
and (5) render
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invoices in accordance with Section 10 below. The Company shall be responsible
for payment of all shipping charges.
b. Shipping charges to the destinations specified in Exhibit A shall be
as specified in Exhibit A. If the Company rejects or cancels for good cause any
Products, Seller shall bear all shipping charges relating to such Products.
c. Products shall be packed by Seller, at no additional charge to the
Company, in containers adequate to prevent damage during shipping, handling and
storage.
6. ORDERS; CHANGES AND CANCELLATIONS
a. The Company shall order all Products and Services pursuant to this
Agreement (other than the Initial Order set forth in Exhibit A) by an Order,
which shall be delivered to Seller not later than [***] days prior to the date
of delivery for such Products and Services specified in the Order. Each Order
shall only become binding on Seller and Customer when agreement has been reached
by the parties on all of the terms therein and Seller has confirmed its
acceptance of the Purchase Order.
b. Customer shall give Seller, for planning purposes, a non-binding
forecast of its estimated requirements for the Products and Services for the
forthcoming [***] and such forecast shall be updated on a quarterly basis. The
first such forecast shall be delivered by the Company to the Seller in December
1997.
c. The Company may, by 30 days' written notice to Seller at any time
before delivery is made, make changes, including changes to quantities,
specifications, destinations or other terms set forth in an Order, [***].
d. In the event of destruction of all or a portion of a Product located
at one of Customer's cell sites (e.g., by fire, flood, theft or other natural
or man-made causes), the Company shall ship a replacement Product (or parts)
within [***] of receipt of notice from Customer to be followed within [***] by
an Order from Customer.
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7. TITLE; RISK OF LOSS
a. Unless otherwise specified herein, title to Products sold by Seller to
the Company shall vest in the Company when the Products have been delivered to
the Company to the location specified in Exhibit A hereto or in an Order (except
title to software shall never pass).
b. Seller shall bear the risk of loss of or damage to any Product until
delivery of the Product to the destination specified in Exhibit A or in an Order
and acceptance by the Company.
8. PERFORMANCE EVALUATION FOR INITIAL ORDER
a. At the end of the Performance Evaluation Period for the Initial Order,
Seller and the Company shall review the data for the Products in the Initial
Order in accordance with the methodology set forth in Exhibit D and shall
mutually agree on the Performance Results. [***].
b. There shall be no Performance Evaluation Period for any Additional
Order.
9. WARRANTY
a. Seller warrants that all Products furnished hereunder will conform in
all material respects with the requirements of this Agreement and the
Specifications; that all Products are free from defects in design, materials,
workmanship and title. These warranties shall survive delivery, acceptance and
payment of the Purchase Price for a period of [***] from the date of delivery of
each such Product to the Company. 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.
b. If the Company believes that there is a breach of any warranty set
forth herein, the Company will notify Seller, setting forth in writing the
nature of the claimed
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breach. Seller shall promptly investigate such breach and advise the Company of
Seller's planned corrective action. Thereafter, Seller shall promptly repair or
replace such Product or Products or take such other action as may be acceptable
to the Company to correct such breach of warranty at no additional charge to the
Company. If such breach of warranty has not been corrected to the Company's
satisfaction within a reasonable time (not to exceed thirty (30) days from the
date of the Company's notice to Seller of the breach), the Company may, in
addition to all other rights and remedies provided by law or this Agreement,
suspend delivery of any then undelivered portion of the Products to be sold by
the Seller to the Company under this Agreement.
c. This warranty is void if (i) the Product is used in other than its
normal and customary manner; (ii) the Product has been subject to misuse,
accident, neglect or damage; (iii) the Product has been installed, optimized or
moved from its original installation site by any person other than Seller or a
person who has been trained by Seller to provide such services; or (iv)
unauthorized alterations or repairs have been made, or unapproved parts used in
the equipment.
d. Seller warrants that the Software will not abnormally end or provide
invalid or incorrect results arising from the use of date data beyond the year
1999.
10. INVOICES AND PAYMENT
a. Seller shall render an invoice for the Initial Order promptly
following agreement by the parties on the Performance Results. Seller shall
render an invoice for Additional Orders promptly upon Acceptance of the Products
and Services. In either case, the invoice shall be computed on the basis of the
prices set forth in Exhibit A [***] and shall identify and show separately
quantities, type of Services, total amounts for each item, shipping charges,
applicable sales or use taxes and total amount due. The Company shall promptly
pay Seller the amount due within 30 days of the date of invoice, unless it is in
dispute; provided, however, that unless otherwise agreed, payment for shortages
and/or non-conforming Products may be withheld by the Company. The Company shall
pay a late fee at the rate of one and one-half percent (1.5%) of the amount due
for each month or portion thereof that the amount remains unpaid.
b. If the Company disputes any invoices rendered or amount paid, the
Company will so notify Seller, and the parties will use their reasonable efforts
to resolve such dispute expeditiously. [***].
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11. TAXES
The Purchase Price(s) set forth herein include all taxes of whatever nature
except state sales and use taxes, which shall be added as applicable and stated
as separate items on the invoice applicable to each delivery of Products.
12. INFRINGEMENT INDEMNITY
a. Seller shall defend the Company against (or, at its option, settle) a
claim that the Products supplied hereunder infringe a United States patent or
copyright provided that (i) the Company promptly notifies Seller in writing of
the claim, (ii) the Company gives Seller full opportunity and authority to
assume sole control of the defense and all related settlement negotiations, and
(iii) the Company gives Seller information and assistance for the defense (the
Company will be reimbursed for reasonable costs and expenses incurred in
rendering such assistance, against receipt of invoices therefor). Subject to
the conditions and limitations of liability stated in this Agreement, Seller
shall indemnify and hold harmless the Company from all payments, which by final
judgments in such suits, may be assessed against the Company on account of such
alleged infringement and shall pay resulting settlements, costs (including
reasonable attorneys' fees) and damages finally awarded against the Company by a
court of law.
b. The Company agrees that if the Products become, or in Seller's opinion
are likely to become, the subject of such a claim, the Company will permit
Seller, at its option and expense, either to procure the right for the Company
to continue using such Products or to replace or modify same so that they become
non-infringing, and, if neither of the foregoing alternatives is available on
terms which are acceptable to Seller, the Company shall at the written request
of Seller, return the infringing or potentially infringing Products. The Company
shall receive a refund of the prorated undepreciated portion of the Purchase
Price actually paid by the Company to Seller for the returned portion of the
Products. The Purchase Price shall be depreciated over a five (5) year period.
c. Seller disclaims any and all liability for any claim of patent or
copyright infringement (i) based upon adherence to specifications, designs or
instructions furnished by the Company, (ii) based upon the combination,
operation or use of any Products supplied hereunder with products, software or
data not supplied by Seller, or (iii) based upon alteration of the Products or
modification of any Software made by any party other than Seller.
13. [***]
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14. INDEPENDENT CONTRACTOR
Seller hereby declares and agrees that Seller is engaged in an independent
business and will perform its obligations under this Agreement as an independent
contractor and not as the agent or employee of the Company; that the persons
performing services hereunder are not agents or employees of the Company; that
Seller has and hereby retains the right to exercise full control of and
supervision over the performance of Seller's obligations hereunder and full
control over the employment, direction, compensation and discharge of all
employees assisting in the performance of such obligations; that Seller will be
solely responsible for all matters relating to payment of such employees,
including compliance with workers' compensation, unemployment, disability
insurance, social security, withholding and all other federal, state and local
laws, rules and regulations governing such matters; and that Seller will be
responsible for Seller's own acts and those of Seller's agents, employees and
contractors during the performance of Seller's obligations under this Agreement.
15. NONEXCLUSIVE MARKET RIGHTS
It is expressly understood that this Agreement does not grant Seller an
exclusive privilege to furnish to the Company any or all of the type of products
which are the subject of this Agreement which the Company may require. The
Company expressly reserves the right to contract with others for the purchase of
products comparable or identical to the products and services which are the
subject of this Agreement.
16. INDEMNIFICATION
Seller shall indemnify the Company, its employees and directors, and each
of them, against any loss, cost, damage, claim, expense or liability, including
but not limited to liability as a result of injury to or death of any person or
damage to or loss or destruction of any property arising out of, as a result of,
or in connection with the performance of this Agreement and directly caused, in
whole or in part, by the acts or omissions, negligent or otherwise, of Seller or
a contractor or an agent of Seller or an employee of anyone of them, except
where such loss, cost, damage, claim, expense or liability arises from the sole
negligence or willful misconduct of the Company or its employees. As used in the
preceding sentence, the words "any person" shall include but shall not be
limited to, a contractor or an agent of the Company or Seller, and an employee
of the Company, Seller or any such contractor or agent; and the words " any
property" shall include, but shall not be limited to, property of the Company,
Seller or any such contractor or agent, or an employee of any of them. 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 and
attorneys' fees that may me incurred by the Company in connection with any such
claim or suit or in enforcing
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the indemnity granted above, provided that Seller (i) is given prompt notice of
any such claim or suit and (ii) full opportunity to assume control of the
defense or settlement.
17. TERM AND TERMINATION
The term of this Agreement shall be [***] from the Effective Date. If
either party is in material default of any of its obligations under this
Agreement and such default continues for thirty (30) days after written notice
thereof by the party not in default, the nondefaulting party may cancel this
Agreement and/or the delivery of any Products which may be affected by such
default.
18. ASSIGNMENT
a. Any assignment by Seller of this Agreement or any other interest
hereunder without the Company's prior written consent, shall be void, except
assignment to a person or entity who acquires all or substantially all of the
assets, business or stock of Seller, whether by sale, merger or otherwise.
b. The Company reserves the right to assign this Agreement or any portion
hereof to any present or future affiliate, subsidiary or parent corporation.
c. Subject to the provisions of paragraphs a and b above, this Agreement
shall inure to the benefit of and be binding upon the respective successors and
assigns, if any, of the parties hereto.
19. NOTICES
Except as otherwise specified in this Agreement, all notices or other
communications hereunder shall be deemed to have been duly given when made in
writing and delivered in person or deposited in the United States mail, postage
prepaid, certified mail, return receipt requested, or by a reputable overnight
courier service providing proof of delivery, or by confirmed facsimile
transmission and addressed as follows:
TO SELLER TO THE COMPANY:
Metawave Communications Corporation 360 degrees Communications Company
8700 148th Avenue NE 8725 Higgins Road
Redmond WA 98052 Chicago, Illinois 60636
Attn:VP, Sales Attn: Tim Thompson
Copy to: General Counsel Copy to: Steve Podrzycki
Fax: 425 702 5970 Fax: 773-399-7291
The address to which notices or communications may be given to either party
may be changed by written notice given by such party to the other pursuant to
this section 18.
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20. COMPLIANCE WITH LAWS
Seller shall comply with all applicable federal, state and local laws,
regulations and codes, including the procurement of permits and licenses when
needed, in the performance of this Agreement. Seller shall indemnify the Company
against any loss or damage that may be sustained by reason of Seller's failure
to comply with such federal, state and local laws, regulations and codes.
21. FORCE MAJEURE
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; or (b) inability to obtain
necessary products, components, services or facilities on account of causes
beyond the reasonable control of the delayed party or its suppliers. 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.
22. GENERAL PROVISIONS
a. All information, data and materials provided by either party under
this Agreement shall be subject to the terms and conditions of the Non-
Disclosure Agreement between the parties dated March 26, 1996.
b. Except as otherwise provided in this Agreement, the provisions of this
Agreement are for the benefit of the parties hereto and not for any other
person.
c. Waiver by either party of any obligation or default by the other party
shall not be deemed a waiver by such party of any other obligation or default.
d. The section and paragraph headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
e. This Agreement and each Order shall be construed in accordance with
the internal laws of the State of Illinois, without regard to its choice of law
provisions .
f. Any rights of cancellation, termination or other remedies prescribed
in this Agreement are cumulative and are not intended to be exclusive of any
other remedies to which the injured party may be entitled at law or equity
(including but not limited to the remedies of specific performance and cover) in
case of any breach or threatened breach by the other party of any provision of
this Agreement, unless such other remedies which are not prescribed in this
Agreement are specifically limited or excluded by this Agreement. The use of one
or more available remedies shall not bar the use of any other remedy for the
purpose of
enforcing the provisions of this Agreement; provided, however, that a party
shall not be entitled to retain the benefit of inconsistent remedies.
g. If any of the provisions of this Agreement shall be invalid or
unenforceable, such invalidity or unenforceability shall not invalidate or
render unenforceable the entire Agreement, but rather the entire Agreement shall
be construed as if not containing the particular invalid or unenforceable
provisions, and the rights and obligations or Seller and the Company shall be
construed and enforced accordingly.
h. This Agreement, including all Exhibits attached to or referenced in
this Agreement, shall constitute the entire agreement between the Company and
Seller with respect to the subject matter hereof.
i. No provision of this Agreement shall be deemed waived, amended or
modified by any party hereto, unless such waiver, amendment or modification is
in writing and signed by a duly authorized representative of each of the
parties.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective duly authorized representatives.
Metawave Communications Corporation 360 degrees Communications Company
By:/s/ Robert Hunsberger By:/s/ Gary Burge
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Title: President & CEO Title: Senior Vice President of
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Engineering & Network Operations
--------------------------------
Date Signed: 10/20/97 Date Signed: 10/21/97
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EXHIBITS ATTACHED:
A Products and Services Pricing
B Product Specifications
C Acceptance Test Procedure
D Performance Criteria for Initial Order
E Software License
EXHIBIT A
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TO THE PURCHASE AGREEMENT
BETWEEN
METAWAVE COMMUNICATIONS CORPORATION ("SELLER")
AND
360 COMMUNICATIONS COMPANY ("COMPANY")
PRODUCTS AND SERVICES PRICING
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For the purposes of uniformity and brevity, references to Agreement or to an
Exhibit shall refer to the Purchase Agreement to which this document is Exhibit
A and to the other Exhibits to that Agreement. All definitions set forth in the
Agreement shall apply hereto unless otherwise expressly defined herein.
INTRODUCTION
This Exhibit A (Products and Services Pricing) lists the pricing for the Initial
Order of Products and Services as of the Effective Date of the Agreement. All
payments for the Products and Services shall be made according to the terms set
forth in the Agreement.
EXHIBIT A: PRODUCTS AND SERVICES PRICING (CONT.)
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SPOTLIGHT PRICING (LPAS WITH 30 WATT MODULES)
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SPOTLIGHT
CONFIGURATIONS [***] [***] [***] [***]
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* The software licensing fee for the current version of LampLighter is included
in the purchase price of each unit.
SPOTLIGHT PRICING
(LPAS WITH 40 WATT MODULES)
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SPOTLIGHT
CONFIGURATIONS [***]
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SPOTLIGHT RECOMMENDED SPARES
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PART NUMBER DESCRIPTION [***] [***]
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TOTAL [***]
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EXHIBIT A: PRODUCTS AND SERVICES PRICING (CONT.)
INITIAL ORDER
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EXHIBIT A: PRODUCTS AND SERVICES PRICING (CONT.)
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EXHIBIT A: PRODUCTS AND SERVICES PRICING (CONT.)
2.0 SPOTLIGHT FIELD REPLACEABLE UNITS PRICING LIST
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Exhibit B: Performance Specifications
to the Products and Services Purchase Agreement
SpotLight(TM) Multibeam Antenna Platform 2.0
Transmit/Receive
(for use with Motorola HDII Base Station Equipment)
________________________________________________________________________________
This document and the information in it is the proprietary and confidential
information of Metawave Communications Corporation and is provided by Metawave
under an agreement of nondisclosure to the Customer for internal evaluation
purposes only and is protected by applicable copyright and trade secret law.
This document may only be disclosed or disseminated to those employees of the
Customer who have a need to use it for evaluation purposes; no other use or
disclosure can be made by Customer without Metawave's consent.
(C)1997 METAWAVE COMMUNICATIONS CORPORATION
CONFIDENTIAL PROPRIETARY
________________________________________________________________________________
1. INTRODUCTION........................................................ 3
2. SYSTEM DESCRIPTION.................................................. 4
2.1 Introduction.................................................... 4
2.2 General System Overview......................................... 4
2.2.1 Operational Overview.................................... 5
2.2.2 SIG/SCAN................................................ 7
2.2.3 Antennas................................................ 7
2.2.4 Lightning Arrestor...................................... 7
2.2.5 Rack Mounted Components................................. 7
2.2.6 Interfaces.............................................. 9
2.3 SpotLight Specifications........................................ 10
2.3.1 RF Performance.......................................... 10
2.3.2 Electrical Specifications............................... 10
2.3.3 Environmental Specifications............................ 10
2.3.4 Physical Specifications................................. 11
2.3.5 Alarming................................................ 11
2.3.6 Reset................................................... 11
2.3.7 SMAP Frequency Reference................................ 11
2.4 RF Performance.................................................. 11
2.4.1 Angular Diversity....................................... 11
2.4.2 Improved C/I Ratio...................................... 12
2.4.3 Increased Range Extension............................... 12
2.4.4 Transmit Output Power................................... 12
2.4.5 Transmit Spurious Emissions............................. 12
2.5 System Software................................................. 12
2.5.1 LampLighter Software.................................... 12
2.5.2 Embedded System Software................................ 13
2.6 Software Performance............................................ 13
2.6.1 Program Upgrades........................................ 13
2.6.2 Programming and Development Standards................... 13
2.6.3 Built-In-Self-Test...................................... 14
2.6.4 Response Times.......................................... 14
3. REGULATORY REQUIREMENTS............................................. 14
3.1 US.......................................................... 14
For purposes of uniformity and brevity, references to Agreement or to an Exhibit
shall refer to the Products and Services Purchase Agreement to which this
document is Exhibit B and to the other Exhibits to that Agreement. All
definitions set forth in the Agreement shall apply hereto.
1. INTRODUCTION
The purpose of this document is to describe and specify Metawave's
SpotLight 2.0 Multibeam Antenna Platform including:
. System operation
. Hardware and software elements of the SpotLight equipment
. Interconnect between SpotLight equipment and the base station equipment
While the specifications contained in this document are based on the most
current information available, such information is based on cell site
specific data and may not apply to all cell sites contained within a
system. The specifications contained in this document may change from cell
site to cell site. Metawave reserves the right to make changes to any
design, specification, manufacturing techniques and/or product testing
procedures.
ACRONYMS AND TERMS DEFINITION
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C/I Carrier to Interference Ratio
FRU Field Replaceable Unit
LNA Low Noise Amplifier
LPA Linear Power Amplifier
RCU Radio Channel Unit (P/O Motorola Cell Equipment)
RF Radio Frequency
RX Receive
SMAP Spotlight Multibeam Antenna Platform
SMU Spectrum Management Unit
TX Transmit
TXCD Transmit Combiner Driver
2. SYSTEM DESCRIPTION
2.1 Introduction
The Spotlight Multibeam Antenna Platform (SMAP) brings enhanced performance
to existing cellular technology. The system replaces the existing antenna
components at a cell site with a high performance antenna array coupled to
an RF switch matrix and control system. This upgrade provides a
dramatically improved carrier-to-interference ratio (C/I) and is the basis
for many other performance enhancements, such as improved audio quality,
extended range and greater traffic capacity.
2.2 General System Overview
The SMAP provides the necessary hardware and software to allow the most
appropriate narrow beam antennas (2 receive paths and 1 transmit path) to
be connected to base station RCUs. The major subsystem components which
make up the SpotLight Multibeam Antenna Platform (SMAP) including antennas,
RF switch matrix, and controller are depicted in Figure 1.
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[***] CERTAIN INFORMATION ON THIS PAGE(S) HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
3. REGULATORY REQUIREMENTS
This section specifies requirements which are set primarily by local and/or
national governing bodies, consortiums and standards committees.
3.1 US
The SpotLight system complies with appropriate US FCC regulations
(includes both RF and EMI). Specifically, the SMAP shall comply with the
regulations defined in CFR 47 part 22 and part 15.
EXHIBIT C: ACCEPTANCE TEST PROCEDURE
(ATP)
TO THE PRODUCTS AND SERVICES PURCHASE AGREEMENT
SPOTLIGHT MULTIBEAM ANTENNA PLATFORM
Metawave Communications Corporation
8700 148th Avenue NE
Redmond, WA 98052 USA
Tel. 425 702-5600
Fax 425 702-5970
http://www.metawave.com
________________________________________________________________________________
This document and the information in it is the proprietary and confidential
information of Metawave Communications Corporation and is provided by Metawave
under an agreement of nondisclosure to the Customer for internal evaluation
purposes only and is protected by applicable copyright and trade secret law.
This document may only be disclosed or disseminated to those employees of the
Customer who have a need to use it for evaluation purposes; no other use or
disclosure can be made by Customer without Metawave's consent.
(C)1997, Metawave Communications Corporation
CONFIDENTIAL PROPRIETARY
________________________________________________________________________________
TABLE OF CONTENTS
1. INTRODUCTION...................................................... 3
2. ACCEPTANCE TESTS.................................................. 3
2.1. LampLighter Installation Test................................ 4
2.2. System Configuration Test.................................... 5
2.3. Transmit Effective Radiated Power (Tx ERP) Test.............. 6
2.4. Receive Sensitivity Test..................................... 7
2.5. Call Processing Test......................................... 8
2.6. Alarm Functionality Test..................................... 9
SPOTLIGHT ACCEPTANCE TEST PROCEDURE
For purposes of uniformity and brevity, references to Agreement or to an
Exhibit shall refer to the Products and Services Purchase Agreement to
which this document is Exhibit C and to the other Exhibits to that
Agreement. All definitions set forth in the Agreement shall apply hereto.
1. INTRODUCTION
The objective of the Acceptance Test Procedure (ATP) is to demonstrate the
proper installation and operation of the SpotLight Multibeam Antenna
Platform ("SpotLight"). Acceptance shall occur upon the demonstration of
the proper installation and optimization of SpotLight. Within [***] after
Metawave has advised Customer that installation and optimization are
complete, Customer shall furnish representatives to witness the Acceptance
Tests as set forth in this Exhibit C. The representatives shall then be
available on a continuous basis to witness the ATP. A SpotLight Certificate
of Acceptance, included at the end of this Exhibit C, contains a test
results checklist that Metawave and Customer fill out and sign.
2. [***]
[***] CERTAIN INFORMATION ON THIS PAGE(S) HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
[***]
[***] CERTAIN INFORMATION ON THIS PAGE(S) HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
EXHIBIT D
---------
TO THE PURCHASE AGREEMENT
BETWEEN
METAWAVE COMMUNICATIONS CORPORATION ("SELLER")
AND
360 DEGREES COMMUNICATIONS COMPANY ("COMPANY")
SPOTLIGHT PERFORMANCE CRITERIA
------------------------------
For the purposes of uniformity and brevity, references to Agreement or to an
Exhibit shall refer to the Purchase Agreement to which this document is Exhibit
D and to the other Exhibits to that Agreement.
360 degrees Communications - Southeast Region
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[***] CERTAIN INFORMATION ON THIS PAGE(S) HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
EXHIBIT E
TO THE PURCHASE AGREEMENT
BETWEEN
METAWAVE COMMUNICATIONS CORPORATION ("SELLER")
AND
360 DEGREES COMMUNICATIONS COMPANY ("COMPANY")
SOFTWARE LICENSE
----------------
For purposes of uniformity and brevity, references to Agreement or to an Exhibit
shall refer to the Purchase Agreement to which this document is Exhibit E and to
the other Exhibits to that Agreement. All definitions set forth in the
Agreement shall apply hereto.
1. SCOPE
Pursuant to the above-identified Agreement, Software will be delivered by
Seller to Company for use with the Products according to the terms of the
Agreement and this Exhibit. Company shall then become a licensee with
respect to such Software.
2. LICENSING GRANT
2.1 Concurrent with execution of the Agreement, Seller grants to Company a
revocable, non-exclusive and non-transferable license under Seller's
applicable proprietary rights to use Software delivered to Company
hereunder in accordance with the terms and conditions set forth
herein.
2.2 Company agrees to pay the Licensing Fees for the right to use the
Software and features and for any support thereof as set forth in
Exhibit A (Price List) or in an Amendment thereto.
3. LIMITATIONS ON USE OF SOFTWARE
3.1 Without the prior written consent of Seller, Company shall only use
the Software in conjunction with a single Product existing within the
site specified in the Order ("Designated Product").
3.2 Company may use the Software to routinely operate and maintain the
Designated Product. For purposes of this Subsection, "maintain" shall
be construed to mean performing diagnostic testing consistent with
Company's obligation to provide the first level of maintenance. Under
no condition shall the Software be used for any other purpose,
including, but not limited to, substituted products, or products not
owned by Company, or products located at a location other than the
site specified in the Order.
3.3 The License granted to Company in Section 2 is personal and may not be
transferred to another product or site without the written consent of
Seller.
3.4 To the extent specified in Exhibit A or an Amendment thereto and
provided Company has paid any applicable licensing fees, Company shall
have the right to use features in accordance with the terms of this
Exhibit. Company acknowledges that the Software may contain therein
several additional features which are each covered by separate
licensing fees. Company agrees not to use, and the license
specifically does not extend to, such additional features unless they
are specified in Exhibit A or an amendment thereto and provided
Company has paid the applicable licensing fees for such additional
features.
3.5 The Software is subject to laws protecting trade secrets, know-how,
confidentiality and copyright.
3.6 Company shall not translate, modify, adapt, decompile, disassemble, or
reverse engineer the Software or any portion thereof.
3.7 Unless otherwise expressly agreed by Seller, Company shall not permit
its directors, officers, employees or any other person under its
direct or indirect control, to write, develop, produce, sell, or
license any software that performs the same functions as the Software
by means directly attributable to access to the Software (e.g. reverse
engineering or copying).
3.8 Company shall not export the Software from the United States without
the written permission of Seller. If written permission is granted for
export of the Software, then Company shall comply with all U.S. laws
and regulations for such exports and shall hold Seller harmless,
including legal fees and expenses for any violation or attempted
violation of the U.S. export laws.
4. RIGHT TO COPY, PROTECTION AND SECURITY
4.1 Software provided hereunder may be copied (for back-up purposes only)
in whole or in part, in printed or machine-readable form for Company's
internal use only, provided, however, that no more than two (2)
printed copies and two (2) machine-readable copies shall be in
existence at any one time without the prior written consent of Seller,
other than copies resident in the Products.
4.2 With reference to any copyright notice of Seller associated with
Software, Company agrees to include the same on all copies it makes in
whole or in part. Seller's copyright notice may appear in any of
several forms, including machine-readable form. Use of a copyright
notice on the Software does not imply that such has been published or
otherwise made generally available to the public.
4.3 Company agrees to keep confidential, in accordance with the terms of
the Agreement, and not provide or otherwise make available in any form
any Software or its contents, or any portion thereof, or any
documentation pertaining to the Software, to any person other than
employees of Company or Seller.
4.4 Software, including features is the sole and exclusive property of
Seller and no title or ownership rights to the Software or any of its
parts, including documentation, is transferred to Company.
4.5 Company acknowledges that it is the responsibility of Company to take
all reasonable measures to safeguard Software and to prevent its
unauthorized use or duplication.
5. REMEDIES
Company acknowledges that violation of the terms of this Exhibit or the
Agreement shall cause Seller irreparable harm for which monetary damages
may be inadequate, and Company agrees that Seller may seek temporary or
permanent injunctive relief without the need to prove actual harm in order
to protect Seller's interests.
6. TERM
Unless otherwise terminated pursuant to Section 7 herein, the term of the
license granted pursuant to Section 2 herein shall be co-extensive with the
term of any licensing and/or maintenance fees paid by Company to Seller
pursuant to Exhibit A or an Amendment thereto.
7. TERMINATION
7.1 The license granted hereunder may be terminated by Company upon one
(1) month's prior written notice.
7.2 Seller may terminate the license granted hereunder if Company is in
default of any of the terms and conditions of the Agreement or
Exhibits, and such termination shall be effective if Company fails to
correct such default within ten (10) days after written notice thereof
by Seller. The provisions of Sections 4 and 5 herein shall survive
termination of any such license.
7.3 Within one (1) month after termination of the license granted
hereunder, Company shall furnish to Seller a document certifying that
through its best efforts and to the best of its knowledge, the
original and all copies in whole or in part of all Software, in any
form, including any copy in an updated work, have been returned to
Seller or destroyed. With prior written consent from Seller, Company
may retain one (1) copy for archival purposes only.
8. RIGHTS OF THE PARTIES
8.1 Nothing contained herein shall be deemed to grant, either directly or
by implication, estoppel, or otherwise, any license under any patents
or patent applications of Seller; except that Company shall have a
non-exclusive, license under Seller's patents and patent applications
to use, in Seller-supplied equipment only, Software supplied
hereunder, when such license is implied or otherwise arises by
operation of law by virtue of the purchase of such copies from Seller.
8.2 Rights in programs or operating systems of third parties, if any, are
further limited by their license agreements with such third parties,
which agreements are hereby incorporated by reference thereto and made
a part hereof as if fully set forth herein. Company agrees to abide
thereby.
8.3 During the term of the license granted pursuant to Section 2 herein
and for a period of one (1) year after expiration or termination,
Seller, and where applicable, its licensor(s), or their
representatives may, upon prior notice to Company, a) inspect the
files, computer processors, equipment, facilities and premises of
Company during normal working hours to verify Company's compliance
with this Agreement, and b) while conducting such inspection, copy or
retain all Software,
including the medium on which it is stored and all documentation that
Company may possess in violation of the license or the Agreement.
8.4 Company acknowledges that the provisions of this Exhibit E are
intended to inure to the benefit of Seller and its licensors and their
respective successors in interest. Company acknowledges that Seller or
its licensors have the right to enforce these provisions against
Company, whether in Seller's or its licesnsor's name.
9. LIMITATIONS ON SOFTWARE
Company understands that errors occur in Software and Seller makes no
warranty that the Software will perform without error. Company agrees that
it is Company's responsibility to select and test the Software to be sure
it meets Company's needs. Company accepts the Software "as is".
10. ENTIRE UNDERSTANDING
Notwithstanding anything to the contrary in other agreements, purchase
orders or order acknowledgments; the Agreement and this Exhibit E set forth
the entire understanding and obligations regarding use of Software, implied
or expressed.