EXHIBIT 10.12
METAWAVE COMMUNICATIONS CORPORATION
PRODUCT PURCHASE AGREEMENT
THIS PRODUCT PURCHASE AGREEMENT (this "Agreement") is made as of this 5th day of
March, 1998 (the "Effective Date") between Metawave Communications Corporation,
a Delaware corporation ("Seller"), and OJSC St. Petersburg Telecom with offices
at Nevsky Prospect 54 - 10, St. Petersburg 191011 Russia, a Russian corporation
("Customer"), a subsidiary of Millicom International Cellular S.A., a Luxembourg
corporation ("Millicom").
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 TO PURCHASE
Seller agrees to sell to Customer, and Customer agrees to purchase, the Products
identified in Section 4 of Exhibit A to this Agreement in accordance with the
specifications and the terms and conditions hereof at the price (net of VAT) set
forth in Section 4 of Exhibit A ("Purchase Commitment"). 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 Purchase
Commitment 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, Change Order, or other communication from one party to the other shall
be deemed objected to without need of further notice of objection and shall be
of no effect and not in any circumstance binding upon either party unless
expressly accepted by both parties in writing.
2. DEFINITIONS
As used in this Agreement, the following terms shall have the meanings set forth
below:
"Acceptance Date" shall mean the date, following the installation of the
Products at the Sites in Russia, that the Certification of Conditional
Acceptance of the Products occurs.
"Acceptance Test Procedure" or "ATP" shall mean the testing procedures and
protocols set forth in Exhibit F.
"Affiliate" shall mean any partnership, corporation or other entity (i) in which
Customer, directly or indirectly, owns a controlling interest or (ii) which owns
a controlling interest in Customer.
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"Certification of Final Acceptance" shall mean, Customer's certification of the
resolution of all Punchlist items, which shall not be unreasonably withheld.
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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
"Change Order" shall mean any subsequent change to the Purchase Commitment
initiated by either Seller or Customer, including but not limited to, changes in
Site configuration, pricing and delivery date, which is mutually agreed to by
both parties.
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"Equipment Authorizations" shall mean all telecommunication equipment
certifications required for the installation and operation of the Products in
Russia by the Russian Ministry of Posts and Telecommunications, the City of
Saint Petersburg and other authorities (including any temporary waivers needed
to operate the Products prior to the receipt of such certifications).
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"Products" shall mean the products listed in Exhibit A hereto or any additional
products set forth in any amendments to Exhibit A as may be subsequently agreed
to from time to time by Seller and Customer.
"Punchlist" shall mean the list provided by Customer to Seller upon Conditional
Acceptance of a Product which sets forth those mutually agreed items relating to
a Product, if any, to be resolved by Seller using best efforts within ten (10)
working days of such Conditional Acceptance of a Product.
"Site" shall mean each of the Customer cell site locations at which a Product is
installed.
"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 Customer for use with the Products as set forth in Exhibit C.
"Specifications" shall mean the specifications for the Products set forth in
Exhibit B and incorporated herein.
3. SHIPPING AND PURCHASE COMMITMENT
a. The Products identified in the Purchase Commitment shall be shipped on
or before [***] or on a later date mutually agreed upon by the parties
in a Change Order which shall not be later than [***]. At its sole
option, Seller may decline to fulfill the Purchase Commitment if
Seller determines that (i) the costs associated with the sale of the
Products for the Sites are prohibitive or the conditions at such Sites
are unacceptable; (ii) the sale and delivery of the
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Products would contravene Section 17(h) of this Agreement; or (iii)
Seller's personnel may be exposed to unsafe conditions.
b. The Product configurations set forth in Exhibit A hereto are subject
to change following the completion of a Site walk by Seller. A change
to such configurations may result in a change in the Purchase
Commitment or in the delivery date. Any such change shall be agreed to
in a written Change Order executed by both parties.
c. Promptly following execution of this Agreement, Customer shall give
Seller, for planning purposes, a non-binding forecast of its estimated
requirements for the Products for the forthcoming [***] and such
forecast shall be updated on a quarterly basis.
d. Customer may, by written notice, no less than 30 days prior to
Seller's shipment of a Product, make a change to a Site destination
provided the new Site destination is in Russia. Customer shall provide
the address of the new Site destination to Seller in a written Change
Order.
e. Customer may, by written notice no less than 45 days prior to delivery
date agreed upon by the parties pursuant to Section 3(a) hereof, delay
the delivery schedule, provided that such delay does not extend beyond
June 30th 1998.
f. Customer may, by written notice no later than 30 days prior to
Seller's shipment of a Product, cancel delivery of a Product.
g. In the case of non-delivery of the Products to the Delivery
Destination by June 30, 1998, Seller shall return to Customer all
funds received from Customer as prepayment for such Products within
not more than one hundred and eighty (180) calendar days from the date
when the prepayment was made.
h. Seller shall pay to Customer (or credit against amounts owed to Seller
by Customer) a charge, for every [***] of delay in the Acceptance
Date, equal to the rate of [***] of the Purchase Commitment (or that
portion thereof) which has been delayed, provided, however, that such
charge shall not apply to any delay caused by an act set forth in
Section 15 hereof or for failure of Customer to perform the
obligations set forth in Section 7 hereof or the conditions and
obligations of the sale are not met as set forth in Exhibit A or
Exhibit G. Such charges shall not exceed [***] of the Purchase
Commitment.
4. SHIPPING; TITLE; RISK OF LOSS
a. Subject to Section 3(a) hereof and this Section 4, Seller shall ship
all Products CIP (INCOTERMS 1990) to the delivery destination
specified in subsection (f) hereof (the "Delivery Destination") and
render invoices in accordance with Section 6 (Invoices and Payments).
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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
b. Products shall be packed by Seller, at no additional charge to
Customer, in containers adequate to prevent damage during normal
international shipping, handling and storage. Seller shall adequately
insure Products during shipment from Seller's facility to Delivery
Destination.
c. In connection with the delivery of the Products to the Delivery
Destination, Seller shall arrange (for the account of Customer) the
following items: freight, insurance transportation documentation and
export licenses, if any. Customer shall reimburse Seller at cost for
such items, including all shipping costs, insurance costs, customs
clearance charges, duties, levies and any other charges that may be
incurred by Seller in connection with the sale of the Products and
their delivery to the Delivery Destination. Seller shall separately
invoice Customer for such charges in accordance with Section 6 hereof.
Customer shall directly pay for all freight, customs clearance
charges, duties, levies, storage fees and any other charges that may
be incurred at and from the Delivery Destination to the Site.
d. Unless otherwise specified herein, risk of loss or damage to any
Product supplied hereunder shall pass to Customer upon delivery of the
Product to the Delivery Destination.
e. Title to the Products supplied hereunder shall pass to Customer upon
delivery to a carrier at Metawave's factory in Redmond WA, USA (except
title to Software shall remain with Seller pursuant to the terms of
the Software License attached as Exhibit C hereto).
f. "Delivery Destination" of the Products in Russia:
Pulkova Customs
Pulkovskaya Tamozhnya
SVA Avia Terminal Service
LIC 057/10
Pilotov St. 9
Office 20,
St. Petersburg, Russia 196210
5. WARRANTY
a. Seller warrants that for a period of [***] from the date of
Certification of Final Acceptance for each Product (the "Warranty
Period"), (i) all Products furnished hereunder will conform in all
material respects with the requirements of this Agreement and the
Specifications, (ii) all Products are free from defects in materials,
workmanship and title, (iii) the media on which the Software is
contained will be free from defects in material and workmanship under
normal use and (iv) the Software will substantially conform to the
documentation provided by Seller. 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
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RESPECT TO THE OMITTED PORTIONS.
a particular purpose. Such warranty may be extended by increments of
ninety (90) days at the mutual agreement of both parties.
b. If Customer believes that there is a breach of any warranty set forth
herein, Customer shall follow the procedures set forth in Exhibit E
hereto (Product Maintenance). The actions taken by Seller under the
Product Maintenance Program procedures set forth in Exhibit E shall be
the full extent of Seller's liability and Customer's exclusive remedy
hereunder.
c. This warranty does not apply to any claim which arises out of any one
of the following: (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 certified by Seller through
completion of a Seller-sponsored training course to provide such
services; (iv) unauthorized alterations or repairs have been made to
the Product, or unapproved parts have been used in or with the
Product; (v) the Product is not maintained pursuant to Seller
maintenance programs or under the supervision of a person who has been
certified by Seller through completion of a Seller-sponsored training
course to provide such maintenance service; (vi) an event of Force
Majeure has occurred; (vii) the failure of third party antennas, lines
or interconnection facilities at the Site; and (viii) damage which
occurs during shipment of equipment from Customer to Seller. The above
limitations include, without limitation, the modification, removal or
obliteration of the bar code, serial number or other identifying mark
of the equipment through the action or inaction of the Customer.
d. If the returned equipment falls outside of the warranty set forth
above, Seller may elect to return the equipment unrepaired, repair the
equipment at the then current flat rate repair charge or repair the
equipment on a time and materials basis.
6. INVOICES AND PAYMENT
a. [***]
b. [***]
c. All invoices sent by Seller to Customer shall be computed on the basis
of the prices (which are net of VAT) set forth in Exhibit A and
Exhibit E and any Change Orders or amendments and shall identify and
show separately quantities
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of Products, total amounts for each item, shipping charges, other
charges, applicable sales or use taxes and total amount due. For
invoices rendered pursuant to subsection (b) hereof, Section 4(c) and
Exhibit E (Product Maintenance Program), Customer shall promptly pay
Seller by wire transfer (to Seller's bank account designated in
subsection (g) hereof) in U.S. Dollars the amount due within forty-
five (45) days of the date of the invoice. Customer 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 is late.
d. Customer shall be responsible for the payment of all sales, use, VAT
and any other taxes applicable to the Purchase Commitment outside the
United States provided by the Seller pursuant to this Agreement. When
Seller is required by law to collect such taxes, 100% thereof will be
added to invoices as separately stated charges and paid by Customer in
accordance with this Section 6.
e. If Customer disputes any invoices rendered or amount paid, Customer
will so notify Seller, and the parties will use their reasonable
efforts to resolve such dispute expeditiously. Provided that Customer
so notifies Seller of a disputed invoice and there is a good faith
basis for such dispute, the time for paying the portion of the invoice
in dispute shall be extended by a period of time equal to the time
between Seller's receipt of such notice from Customer and the
resolution of such dispute.
f. If financing to fund Customer's purchase of Products pursuant to this
Agreement has been arranged, Customer may utilize such financing in
making payments in accordance with the terms of this Agreement and as
required under this subsection. The parties agree that the foregoing
does not constitute an offer by Seller to make available such
financing, or to arrange such financing for Customer and any such
financing is subject to agreement of the parties and the negotiation
and execution of separate documentation.
g. Except as otherwise specified in this Agreement, all payments from one
party to the other shall be made by wire transfer into the following
accounts:
TO SELLER:
Metawave Communications Corporation
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TO CUSTOMER:
St. Petersburg Telecom
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The bank account designated above may be changed by written notice
given by such party to the other pursuant to Section 13 (Notices).
7. OBLIGATIONS OF THE PARTIES
In addition to performing the other obligations set forth in this Agreement:
a. Customer shall procure from appropriate regulatory authorities and
other persons all necessary permits and station licenses as may be
required to install and operate the cellular network system
incorporating the Products; and
b. Customer shall assist Seller in obtaining any required type
acceptances, permits and licenses (including all Equipment
Authorizations) which shall include providing to Seller the assistance
of Customer's employees or agents in Russia for such purpose.
8. INFRINGEMENT INDEMNITY
a. Seller shall defend Customer against (or, at its option, settle) a
claim that the Products supplied hereunder infringe a United States
patent or copyright 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). Subject to the
conditions and limitations of liability stated in this Agreement,
Seller shall indemnify and hold harmless Customer from all payments,
which by final judgments in such suits, 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.
b. Customer agrees that if the Products become, or in Seller's opinion
are likely to become, the subject of such a claim, Customer will
permit Seller, at its option and expense, either to procure the right
for Customer to continue using such Products
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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, Customer shall at the written request of
Seller, return the infringing or potentially infringing Products.
Customer shall receive a refund of the prorated undepreciated portion
of the price actually paid by Customer to Seller for the returned
portion of the Products. The price shall be depreciated over a seven
(7) year period.
c. Seller shall have no obligation to Customer with respect to any claim
of patent or copyright infringement which is based upon or related to
(i) adherence to customized specifications, designs or instructions
furnished by Customer, (ii) the interconnection or interface of any
Products supplied hereunder with base station products or software not
approved by Seller (such products approved by Seller are set forth in
Exhibit B, Section 2.2.7.), (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 superseded or altered release of some or
all of the Software if infringement would have been avoided by the use
of a subsequently altered release of the Software that is provided to
Customer.
9. 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 Customer.
10. INDEMNIFICATION
Seller shall indemnify Customer, 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 Customer 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 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 (i) is given prompt
notice of any such claim or suit and (ii) full opportunity to assume control of
the defense or settlement. Seller shall not be liable to Customer for indirect
or consequential damages, including but not limited to lost profits.
11. TERM AND TERMINATION
The term of this Agreement shall be [***]. If either party is in material
default of any of its obligations under this Agreement
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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. In
addition, a party may cancel this Agreement if a petition in bankruptcy or under
any insolvency law is filed by or against the other party and is not dismissed
within sixty (60) days of the commencement thereof. Any agreements between the
parties pursuant to the terms and conditions of Exhibit E hereto (Product
Maintenance Program) and the rights and obligations of the parties under
Sections 5, 6, 7, 8, 10, 12, 13, 15, 16, and 17 shall survive the termination of
this Agreement.
12. ASSIGNMENT
a. Any assignment by either party of this Agreement or any other interest
hereunder without the other party's prior written consent, shall be
void, except assignment to an Affiliate.
b. The Software license granted to Customer in the form of Exhibit C
(Software License), may not be sublicensed, assigned or otherwise
transferred by Customer without the prior consent of Seller, except to
an Affiliate.
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.
13. 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 sent by a reputable overnight courier service
providing proof of delivery, or by confirmed facsimile transmission and
addressed as follows:
TO SELLER: TO CUSTOMER:
Metawave Communications Corporation OJSC St. Petersburg Telecom
8700 148th Avenue NE 12 Kantemirovskaya St.
Redmond WA 98052 St. Petersburg, 197042, Russia
Attn.: VP, Sales Attn.: Technical Director
Copy to: General Counsel Copy to:
Fax: 425 702 5976 Fax: 7-812-119-5802
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 13 (Notices).
14. COMPLIANCE WITH LAWS
Subject to Sections 3(a)(ii) and 7(b), Seller shall comply with all applicable
laws, regulations and codes, including the procurement of required type
acceptance, permits and licenses for the Products, [***].
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RESPECT TO THE OMITTED PORTIONS.
15. FORCE MAJEURE
Except for obligations of confidentiality agreed to by the parties, 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, natural disaster, embargoes,
war, riots, and loss or damage to goods in transit; (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 or (c) a
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 personnel)
except that Customer shall not be liable for delays in the payment of, or
failure to pay, moneys due to Seller for Products only as a result of an act set
forth in subsection (a). 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.
16. Governing Law; dispute resolution
a. This Agreement and the Purchase Commitment shall be construed in
accordance with the internal laws of the State of New York, without
regard to its choice of law provisions.
b. Any and all disputes arising between the parties shall be resolved in
the following order: (i) by good faith negotiation between
representatives of Customer and Seller who have authority to fully and
finally resolve the dispute to commence within ten (10) days of the
request of either party; (ii) in the event that the parties have not
succeeded in negotiating a resolution of the dispute within ten (10)
days after the first meeting, then the dispute will be resolved by
nonbinding mediation in a mutually agreed location and to be conducted
in English by a mutually agreed upon non-affiliated neutral party
having experience with or knowledge in the wireless communications
equipment industry to be chosen within twenty (20) days after written
notice by either party demanding mediation(the costs therefor to be
shared equally); and (iii) if within sixty (60) days of the initial
demand for mediation by one of the parties, the dispute cannot be
resolved by mediation, then the dispute shall be submitted by the
parties to final and binding arbitration under the then current
arbitration rules of the International Chamber of Commerce to be
conducted in English by three (3) arbitrators having experience with
or knowledge in the wireless telecommunications industry to be held in
a mutually agreeable location (the costs therefor to be shared
equally).
17. GENERAL PROVISIONS
a. All information, data and materials provided by either party under
this Agreement or prior to the Effective Date of this Agreement shall
be subject to the terms and conditions of the Non-Disclosure Agreement
to be executed by the parties concurrently with this Agreement and
attached hereto as Exhibit D. The parties shall not disclose the
financial value of this Agreement to third parties unless the parties
mutually agree to disclose such information or such disclosure is
required by law.
b. Seller and Customer may issue a joint press release concerning the
execution of this Agreement. Such press release shall be subject to
prior review and written approval by both parties, not to be
unreasonably withheld.
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. 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.
e. 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 Customer shall be construed and enforced
accordingly.
f. This Agreement, including all Exhibits attached thereto and the Non-
Disclosure Agreement shall constitute the entire agreement between
Customer and Seller with respect to the subject matter hereof and
supersedes all prior discussions, agreements and representations,
whether oral or written.
g. 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.
h. Each party shall comply with all applicable U.S. and foreign export
control laws and regulations and shall not export or re-export any
technical data or Products except in compliance with the applicable
export control laws and regulations of the U.S. and any foreign
country.
i In the event that this Agreement is translated into any other
language, the English version hereof shall take precedence and govern.
j. All costs incurred for translating this Agreement, including all
Exhibits attached hereto and any other documents produced in
connection with the execution and performance of this Agreement, into
another language shall be borne by Customer.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective duly authorized representatives.
METAWAVE COMMUNICATIONS CORPORATION OJSC ST. PETERSBURG TELECOM
By: /s/ Richard Henderson By: /s/ Michael Koeho
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Name: Richard Henderson Name: Michael Koeho
-------------------------
Title: Vice President of Sales and Marketing Title: General Director
-------------------------
EXHIBITS ATTACHED:
A Product Pricing
B Performance Specifications
C Software License
D Nondisclosure Agreement
E Product Maintenance Program
F Acceptance Test Procedure
G Responsibility Matrix
H Project Schedule
EXHIBIT A: PRODUCT PRICING
TO THE PRODUCT PURCHASE AGREEMENT
BETWEEN
METAWAVE COMMUNICATIONS CORP. ("SELLER")
AND
ST. PETERSBURG TELECOM ("CUSTOMER")
Metawave Communications Corporation
8700 148th Avenue NE
Redmond, WA 98052 USA
Tel. 425 702-5600
Fax 425 702-5970
http://www.metawave.com
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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)1998, METAWAVE COMMUNICATIONS CORPORATION
CONFIDENTIAL PROPRIETARY
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CONFIDENTIAL AND PROPRIETARY 2/10/98
Product Pricing
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PRODUCT PRICING
For the purposes of uniformity, references to Agreement or to an Exhibit shall
refer to the Product 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.
1. INTRODUCTION
This Exhibit A lists the Product pricing as of the Effective Date of the
Agreement. All payments for the Products shall be in U.S. dollars and in
accordance with the payment terms set forth in the Agreement.
SPOTLIGHT RECOMMENDED SPARES KIT
Part Number DESCRIPTION QTY. PRICE PRICE
(30W LPA) (50W LPA)
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250-0035-XX Tx Driver [***] [***] [***]
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250-0042-XX Voice LNA [***] [***] [***]
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250-0044-XX LNA Alarm [***] [***] [***]
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250-0082-XX LNA Power [***] [***] [***]
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250-0083-XX External I/O card [***] [***] [***]
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270-0002-XX RX SMU Assy. [***] [***] [***]
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270-0026-XX TX SMU Assy. [***] [***] [***]
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275-0000-XX 30 Watt LPA module [***] [***] [***]
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TOTALS: [***] [***]
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Notes:
1. The SpotLight Recommended Spares Kit list is for SpotLight configurations
supporting up to 90 channels.
2. Seller recommends to maintain an inventory of one Recommended Spares Kit
for every SpotLight unit installed.
3. SpotLight Recommended Spares Kits are not discountable.
2. SOFTWARE LICENSING FEE
The software licensing fees for the most current version of LampLighter and
embedded system software (available at the time of purchase of SpotLight) are
included in the purchase price of each SpotLight unit purchased. The software
licensing fees for subsequent upgrades of LampLighter and embedded system
software will depend on the enhancements made to the software and the number and
types of new features available with each new software release.
3. MAINTENANCE FEES
3.1 Software Maintenance Program (SMP) Fees
The SMP annual fee for LampLighter software and the SpotLight embedded system
software is [***] per each RF analog channel support by SpotLight not to exceed
[***] per "Host System" per year where a Host System is defined herein as that
group of SpotLight units serving cellular RF infrastructure equipment connected
to a common Mobile Switching Center.
[***] 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.
Product Pricing
================================================================================
3.2 Hardware Maintenance Program (HMP) Fees
The HMP annual fee planning price is [***] per each RF analog channel supported
by a SpotLight system not to exceed [***] of all SpotLight units covered under
the HMP program.
Seller and Customer agree to negotiate in good faith the HMP fee prior to the
end of the Warranty Period.
4. PURCHASE COMMITMENT
PURCHASE COMMITMENT PRICING (USD)
Product Description UNIT PRICE NO. OF EXTENDED LIST
UNITS PRICE
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PURCHASE COMMITMENT PRICE [***]
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5. GENERAL CONDITIONS FOR THE PURCHASE COMMITMENT:
1. All payments shall be in U.S. dollars.
2. Shipment and delivery of the Products set forth herein is dependent upon
obtaining all necessary licenses, permits, governmental approvals and
customs clearances for the Products. Seller shall not be held liable for
any non-performance due to delays in obtaining any of the above
documentation, approvals and clearances, provided that Seller has made a
reasonable attempt to provide such documentation.
3. Customer shall provide assistance to Seller in obtaining all necessary
licenses, permits, government approvals, customs clearances and any other
required documentation required for the importation of and operation of the
SpotLight systems.
4. Customer shall be responsible for payment of all shipping and delivery
charges, all sales, use, VAT, and any other taxes and all customs and
duties payments applicable to the sale of the Products set forth herein.
5. In the event that Seller is unable to export Seller's test equipment out of
Russia, Customer agrees to purchase such equipment.
6. All prices set forth in the Agreement and any Exhibits to the Agreement are
net of all taxes including but not limited to VAT.
7. Customer shall provide the vehicle, driver, cellular phones and air-time
for all drive testing at no charge to Seller.
8. Performance of Seller's obligations under the Agreement is dependent upon
obtaining all necessary licenses, permits, government approvals, customs
clearances and visas for Seller's Products and or personnel. Seller shall
not be held liable for any non-performance due to delays in obtaining any
of the above documentation, approvals and clearances, provided that Seller
has made a reasonable attempt to provide such documentation.
[***] 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.
SPOTLIGHT 2.0 FIELD REPLACEABLE UNIT (FRU) PRICE LIST
- ------------------------------------------------------------------------------------------
PART NUMBER PART DESCRIPTION PRICE
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CONFIDENTIAL AND PROPRITARY 2/10/98
[***] 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.
Product Pricing
===================================================
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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
EXHIBIT B: PERFORMANCE SPECIFICATIONS
TO THE PURCHASE AGREEMENT
SPOTLIGHT MULTIBEAM ANTENNA PLATFORM 2.0
TRANSMIT/RECEIVE
(for use with Motorola HDII Base Station Equipment)
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.
- --------------------------------------------------------------------------------
01/13/98
SpotLight Multibeam Antenna Platform Performance Specifications
================================================================================
TABLE OF CONTENTS
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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
SpotLight Multibeam Antenna Platform Performance Specifications
================================================================================
PERFORMANCE SPECIFICATIONS
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
-----------------------------
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
SpotLight Multibeam Antenna Platform Performance Specifications
================================================================================
2. System Description
[***]
[***] 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.
The SpotLight system is UL Listed.
EXHIBIT C: SOFTWARE LICENSE
TO THE PURCHASE AGREEMENT
BETWEEN
METAWAVE COMMUNICATIONS CORP. ("SELLER")
AND
ST. PETERSBURG TELECOM ("CUSTOMER")
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.
1998, Metawave Communications Corporation
CONFIDENTIAL PROPRIETARY
- --------------------------------------------------------------------------------
12/5/97
Table of Contents
1. Scope................................................. 3
2. Licensing Grant....................................... 3
3. Limitations On Use Of Software........................ 3
4. Right To Copy, Protection And Security................ 4
5. Remedies.............................................. 4
6. Term.................................................. 5
7. Termination........................................... 5
8. Right Of The Parties.................................. 5
9. Limitations On Software............................... 6
10. Entire Understanding..................................
Software License
================================================================================
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 C 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 Customer for use with the Products according to the terms of the Agreement
and this Exhibit. Customer shall then become a licensee with respect to such
Software.
2. LICENSING GRANT
2.1 CONCURRENT WITH EXECUTION OF THE AGREEMENT, SELLER GRANTS TO CUSTOMER
A REVOCABLE, NON-EXCLUSIVE AND NON-TRANSFERABLE LICENSE UNDER SELLER'S
APPLICABLE PROPRIETARY RIGHTS TO USE SOFTWARE DELIVERED TO CUSTOMER
HEREUNDER IN ACCORDANCE WITH THE TERMS AND CONDITIONS SET FORTH
HEREIN.
2.2 CUSTOMER 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 (PRICING) OR IN AN AMENDMENT THERETO. THE LICENSING FEE IS A
ONE TIME FEE WHICH GRANTS THE CUSTOMER THE RIGHT TO USE THE VERSION OF
SOFTWARE LICENSED FOR AS LONG AS THE CUSTOMER OWNS THE PRODUCT.
3. LIMITATIONS ON USE OF SOFTWARE
3.1 WITHOUT THE PRIOR WRITTEN CONSENT OF SELLER, CUSTOMER SHALL ONLY USE
THE SOFTWARE IN CONJUNCTION WITH A SINGLE PRODUCT EXISTING WITHIN THE
SITE SPECIFIED IN THE PO ("DESIGNATED PRODUCT").
3.2 CUSTOMER 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
CUSTOMER'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 CUSTOMER, OR PRODUCTS LOCATED AT A LOCATION OTHER THAN THE
SITE SPECIFIED IN THE PO.
3.3 THE LICENSE GRANTED TO CUSTOMER 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 CUSTOMER HAS PAID ANY APPLICABLE LICENSING FEES, CUSTOMER
SHALL HAVE THE RIGHT TO USE FEATURES IN ACCORDANCE WITH THE TERMS OF
THIS EXHIBIT. CUSTOMER ACKNOWLEDGES THAT THE SOFTWARE MAY CONTAIN
THEREIN SEVERAL ADDITIONAL FEATURES WHICH ARE EACH COVERED BY SEPARATE
LICENSING FEES. CUSTOMER 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
CUSTOMER 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 CUSTOMER SHALL NOT TRANSLATE, MODIFY, ADAPT, DECOMPILE, DISASSEMBLE,
OR REVERSE ENGINEER THE SOFTWARE OR ANY PORTION THEREOF.
3.7 UNLESS OTHERWISE EXPRESSLY AGREED BY SELLER, CUSTOMER 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 CUSTOMER 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 CUSTOMER 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
CUSTOMER'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, CUSTOMER 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 CUSTOMER 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 CUSTOMER 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 CUSTOMER.
4.5 CUSTOMER ACKNOWLEDGES THAT IT IS THE RESPONSIBILITY OF CUSTOMER TO
TAKE ALL REASONABLE MEASURES TO SAFEGUARD SOFTWARE AND TO PREVENT ITS
UNAUTHORIZED USE OR DUPLICATION.
5. REMEDIES
Customer 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 Customer agrees that Seller may seek temporary or permanent
injunctive relief without the need to prove actual harm in order to protect
Seller's interests.
Software License
================================================================================
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 Customer to Seller pursuant to
Exhibit A or an Amendment thereto.
7. TERMINATION
7.1 THE LICENSE GRANTED HEREUNDER MAY BE TERMINATED BY CUSTOMER UPON ONE
(1) MONTH'S PRIOR WRITTEN NOTICE.
7.2 SELLER MAY TERMINATE THE LICENSE GRANTED HEREUNDER IF CUSTOMER IS IN
DEFAULT OF ANY OF THE TERMS AND CONDITIONS OF THE AGREEMENT OR
EXHIBITS, AND SUCH TERMINATION SHALL BE EFFECTIVE IF CUSTOMER 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, CUSTOMER 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, CUSTOMER
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 CUSTOMER 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. CUSTOMER 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 CUSTOMER, A) INSPECT THE
FILES, COMPUTER PROCESSORS, EQUIPMENT, FACILITIES AND PREMISES OF
CUSTOMER DURING NORMAL WORKING HOURS TO VERIFY CUSTOMER'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 CUSTOMER MAY POSSESS IN VIOLATION OF THE
LICENSE OR THE AGREEMENT.
8.4 CUSTOMER ACKNOWLEDGES THAT THE PROVISIONS OF THIS EXHIBIT C ARE
INTENDED TO INURE TO THE BENEFIT OF SELLER AND ITS LICENSORS AND THEIR
RESPECTIVE SUCCESSORS IN INTEREST. CUSTOMER ACKNOWLEDGES THAT SELLER
OR ITS LICENSORS HAVE THE RIGHT TO ENFORCE THESE PROVISIONS AGAINST
CUSTOMER, WHETHER IN SELLER'S OR ITS LICESNSOR'S NAME.
Software License
================================================================================
9. LIMITATIONS ON SOFTWARE
Customer understands that errors occur in Software and Seller makes no warranty
that the Software will perform without error. Customer agrees that it is
Customer's responsibility to select and test the Software to be sure it meets
Customer's needs. Customer agrees to accept Software in its current condition.
Seller agrees to repair any service effecting Software defect promptly per the
warranty terms during the Warranty Period.
10. ENTIRE UNDERSTANDING
Notwithstanding anything to the contrary in other agreements, purchase orders or
order acknowledgments; the Agreement and this Exhibit C set forth the entire
understanding and obligations regarding use of Software, implied or expressed.
Software License
================================================================================
[LOGO]
NON-DISCLOSURE AGREEMENT
------------------------
This Non-Disclosure Agreement ("NDA"), effective February 4th, 1998
("Effective Date"), is by and between OJSC St. Petersburg Telecom ("Recipient")
having a place of business at Nevsky Prospect 54 - 10, St. Petersburg 191011
Russia, and Metawave Communications Corporation ("Metawave") having a place of
business at 8700 148th Ave. NE, Redmond, WA 98052 U.S.A.
1. The purpose of this NDA is to allow each party to obtain from the other
certain technical and business information related to wireless systems
under terms that will protect the confidential and proprietary nature
of such information.
2. As used in this NDA, "Confidential Information" shall mean any and all
technical or business information furnished, in whatever form or
medium, or disclosed by one party to the other including, but not
limited to, product/service specifications, prototypes, computer
programs, models, drawings, marketing plans, financial data, and
personnel statistics, which are marked as confidential or proprietary
by the disclosing party, or, for information which is orally
disclosed, the disclosing party indicates to the other at the time of
disclosure the confidential or proprietary nature of the information
and confirms in writing to the receiving party within thirty (30) days
after such disclosure that such information is confidential. Any
technical or business information of a third person furnished or
disclosed by one party to the other shall be deemed "Confidential
Information" of the disclosing party unless otherwise specifically
indicated in writing to the contrary.
3. Each party agrees to hold such Confidential Information in confidence for a
period of three (3) years from the date of receipt of same unless
otherwise agreed to in writing by the disclosing party, and that
during such period each party will use such information solely for the
purposes of this NDA unless otherwise allowed in this NDA or by
written permission of the disclosing party. Each party agrees not to
copy such Confidential Information of the other unless specifically
authorized. Each party agrees that it shall not make disclosure of any
such Confidential Information to anyone (including subcontractors)
except employees of such party to whom disclosure is necessary for the
purposes set forth above. Each party shall appropriately notify such
employee that the disclosure is made in confidence and shall be kept
in confidence in accordance to this NDA. Each party also agrees that
it will make requests for Confidential Information of the other only
if necessary to accomplish the purposes set forth in this NDA. The
receiving party agrees that 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.
4. Each party agrees that in the event permission is granted by the other to
copy such Confidential Information, each such copy shall contain and
state the same confidential or proprietary notices or legends, if any,
which appear on the original. Nothing herein shall be construed as
granting to either party any right or license under any copyrights,
inventions, or patents now or hereafter owned or controlled by the
other party.
1
Software License
================================================================================
5. Upon termination of this NDA for any reason or upon request of the
disclosing party, all Confidential Information, together with copies
of same as may be authorized herein, shall be returned to the
disclosing party or certified destroyed by the receiving party upon
the request of the disclosing party. The requirements of use and
confidentiality set forth herein shall survive the termination of this
NDA.
6. The obligations imposed in this NDA shall not apply to any information
that:
(a) is already in the possession of or is independently developed by the
receiving party; or
(b) is or becomes publicly available through no fault of the receiving
party; or
(c) is obtained by the receiving party from a third person who is under no
obligation of confidence to the party whose Confidential Information
is disclosed; or
(d) is disclosed without restriction by the disclosing party.
7. Except for the obligations of use and confidentiality imposed in this NDA
no obligation of any kind is assumed or implied against either party
by virtue of the party's meetings or conversations with respect to
whatever Confidential Information is exchanged. Each party further
acknowledges that this NDA and any meetings and communications of the
parties relating to the same subject matter shall not :
(a) constitute an offer, request, or research, development or other
contract with the other to work; engage in any
(b) constitute an offer, request or contract involving a buyer-seller
relationship, venture, teaming or partnership relationship between the
parties; and
(c) impair or restrict the parties' products or services, now or those
offered by the NDA. right to make, procure or market in the future,
which may be disclosing party, or which any competitive with are the
subject matter of this
The parties expressly agree that any money, expenses or losses expended or
incurred by each party in preparation for, or as a result of this NDA
or the parties meetings and communications, is at each party's sole
cost and expense provided, however, that notwithstanding anything to
the contrary in the NDA, neither party's rights shall be limited in
law or equity to enforce the confidentiality and use obligations
imposed under this NDA.
8. Without prior consent of the other party, neither party shall disclose to
any third person the existence or purpose of this NDA, the terms or
conditions hereof, the fact that discussions are taking place or that
Confidential Information is being shared, except as may be required by
law and then only after first notifying the other party of such
required disclosure. The parties also agree that neither party shall
use any trade name, service mark, or trademark of the other or refer
to the other party in any promotional activity or material without
first obtaining the prior written consent of the other party.
9. Neither this NDA nor any rights hereunder in whole or in part shall be
assignable or otherwise transferable by either party and the
obligations contained in this NDA
Software License
================================================================================
shall survive and continue after termination of this NDA, provided,
that either party may assign or transfer this NDA and rights hereunder
to any current or future affiliates or successor company if such
assignee agrees in writing to the terms and conditions herein.
10. The foregoing shall apply to any subsequent meetings or any communications
between the parties relating to the same subject matter unless this
NDA is modified in writing and such writing is signed by each party.
11. This NDA shall be governed and construed by the laws of the State of
Delaware.
12. Each party shall comply with all applicable U.S. and foreign export control
laws and regulations and shall not export or re-export any technical
data or products except in compliance with the applicable export
control laws and regulations of the U.S. and any foreign country.
13. Any notice to be given under this NDA by either party to the other, shall
be in writing and shall be deemed given when sent by Certified mail.
If either party changes its address during the term of this NDA, it
shall so advise the other party in writing as provided in this NDA and
any notice thereafter required to be given shall be sent by Certified
mail to such new addresses.
14. In the event that this NDA is translated into any other language, the
English version hereof shall take precedence and govern.
15. This NDA, together with any and all exhibits incorporated herein,
constitutes the entire NDA between the parties with respect to the
subject matter of this NDA. No provision of this NDA shall be deemed
waived, amended, or modified by either party, unless such waiver,
amendment or modification is made in writing and signed by both
parties. This NDA supersedes all previous NDAs between Metawave and
Recipient relating to the subject matter in this NDA.
IN WITNESS WHEREOF, the parties have caused their duly authorized
representatives to sign this NDA as of the Effective Date.
METAWAVE COMMUNICATIONS CORP. OJSC ST. PETERSBURG TELECOM
Signature: _______________________ Signature: ________________________
Print Name: Kathy Surace-Smith Print Name: _______________________
Title: General Counsel Title: ____________________________
EXHIBIT E: PRODUCT MAINTENANCE PROGRAM
TO THE PURCHASE AGREEMENT
BETWEEN
METAWAVE COMMUNICATIONS CORP. ("SELLER")
AND
ST. PETERSBURG TELECOM ("CUSTOMER")
Metawave Communications Corporation
8700 148/th/ 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)1998, METAWAVE COMMUNICATIONS CORPORATION
CONFIDENTIAL PROPRIETARY
- --------------------------------------------------------------------------------
Product Maintenance Program
================================================================================
Product Maintenance Program
TABLE OF CONTENTS
1. Introduction......................................................... 3
2. Hardware Maintenance Program......................................... 3
3. Software Maintenance Program......................................... 4
ANNEX A
A. Metawave Customer Support Center................................... 7
B. Return Material Authorization (RMA)................................ 7
C. Return Address..................................................... 7
D. Packing Instructions............................................... 7
E. Purchase Orders.................................................... 7
F. Pricing and Invoicing.............................................. 8
G. Emergency Expedite Service......................................... 8
H. Loaner and Pre-exchange Orders..................................... 9
I. Freight............................................................ 9
J. Duties and Taxes................................................... 9
K. Non-compliance..................................................... 9
L. Conflicting Terms.................................................. 9
Product Maintenance Program
================================================================================
METAWAVE COMMUNICATIONS CORPORATION
PRODUCT MAINTENANCE PROGRAM
1. INTRODUCTION
Seller's product maintenance program includes both a Hardware Maintenance
Program (HMP) and a Software Maintenance Program (SMP). This document describes
each of the two programs.
2. HARDWARE MAINTENANCE PROGRAM
The following details Seller's Hardware Maintenance Program ("HMP"). For each
Product purchased, the HMP is included at no charge during the initial period
described in Section 2.1.1.
2.1 Term
2.1.1 DURING THE WARRANTY PERIOD (AS DEFINED IN SECTION 5 OF THE
AGREEMENT) THE HMP IS INCLUDED IN THE PURCHASE PRICE OF EACH
SPOTLIGHT UNIT PURCHASED. THEREAFTER, HARDWARE REPAIR SERVICES
WILL BE PROVIDED BY SELLER TO CUSTOMER ON A TIME AND MATERIAL
BASIS FOR A PERIOD OF [***] FROM THE DATE OF PRODUCT PURCHASE,
UNLESS CUSTOMER ELECTS TO PURCHASE AN HMP AT THE FEES SET FORTH
IN EXHIBIT A. SUCH HMP CAN ONLY BE PURCHASED DURING THE TERM OF
THIS AGREEMENT.
2.2 Seller shall:
2.2.1 IN THE EVENT A DEFECT OCCURS, EITHER (I) REPAIR THE DEFECTIVE
HARDWARE OR (II) REPLACE SAID HARDWARE WITH NEW OR REFURBISHED
PRODUCT. ANY ITEM REPLACED WILL BE DEEMED TO BE ON AN EXCHANGE
BASIS, AND ANY ITEM RETAINED BY SELLER THROUGH REPLACEMENT WILL
2.2.2 [***] OF RECEIPT OF A DEFECTIVE FIELD REPLACEABLE UNIT (FRU)
FROM CUSTOMER, SHIP THE REPLACEMENT FRU TO CUSTOMER, OR WITHIN
[***] OF RECEIPT OF A DEFECTIVE FRU FROM CUSTOMER, SHIP A
REPAIRED FRU TO CUSTOMER. EQUIPMENT NOT MANUFACTURED BY SELLER
WILL BE REPAIRED OR REPLACED AS PROMPTLY AS ARRANGEMENTS WITH
THE MANUFACTURERS OR VENDORS THEREOF PERMIT.
2.2.3 ISSUE A RETURN MATERIAL AUTHORIZATION ("RMA") NUMBER TO CUSTOMER
PRIOR TO CUSTOMER'S RETURN OF THE DEFECTIVE BOARD.
2.2.4 PAY ALL TRANSPORTATION CHARGES FOR THE RETURN OF THE REPAIRED OR
REPLACEMENT FRU TO CUSTOMER.
2.2.5 PROVIDE TECHNICAL SUPPORT DURING BUSINESS HOURS, 8:00 A.M. TO
5:00 P.M. PACIFIC STANDARD TIME, MONDAY THROUGH FRIDAY AND
PROVIDE PAGER SERVICE AFTER HOURS, WEEKENDS AND HOLIDAYS WITH A
RESPONSE TIME OF WITHIN ONE HOUR.
2.3 Customer shall:
2.3.1 CONTACT SELLER VIA TELEPHONE, EMAIL OR FAX TO OBTAIN AN RMA
PRIOR TO RETURNING A DEFECTIVE FRU.
[***] 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.
Product Maintenance Program
================================================================================
2.3.2 PACKAGE FIELD REPLACEABLE UNIT IN A MANNER TO PREVENT DAMAGE
DURING SHIPMENT. IDENTIFY RMA NUMBER ON OUTSIDE OF PACKAGE.
2.3.3 PACKAGE THE EQUIPMENT BEING RETURNED IN A MANNER NO LESS
PROTECTIVE TO SUCH EQUIPMENT THAN THE MANNER IN WHICH EQUIPMENT
IS PACKAGED BY SELLER.
2.3.4 SHIP THE DEFECTIVE FRU TO AN AUTHORIZED SELLER SERVICE CENTER
DESIGNATED BY SELLER.
2.3.5 PAY ALL COSTS OF TRANSPORTATION FOR SENDING THE DEFECTIVE FRU TO
SELLER.
2.3.6 IF SELLER HAS SHIPPED A FRU IN ADVANCE OF THE CUSTOMER RETURNING
THE DEFECTIVE FRU TO SELLER, CUSTOMER AGREES TO INSURE AND
PROVIDE CONFIRMATION OF SHIPMENT OF SUCH DEFECTIVE FRU, FREIGHT
PREPAID, TO SELLER AT THE AFOREMENTIONED ADDRESS WITHIN 5 DAYS
OF SHIPMENT FROM SELLER OF THE FRU. CUSTOMER AGREES TO PROMPTLY
PAY SELLER'S INVOICE FOR THE THEN CURRENT PRICE OF THE FRU
SHIPPED TO CUSTOMER IF THE DEFECTIVE FRU IS NOT RETURNED WITHIN
THE SPECIFIED 5 DAY PERIOD.
2.3.7 BE RESPONSIBLE FOR THE INITIAL IDENTIFICATION OF PRODUCT
PROBLEMS DOWN TO THE FRU LEVEL AND FOR THE REMOVAL, REPLACEMENT
AND SHIPMENT OF THE MALFUNCTIONING FRU, PACKED IN A MANNER TO
PREVENT DAMAGE TO FRU.
2.4 On-Site Repair
On-Site Repair can be performed at an additional charge. Such charge
will be quoted to Customer and agreed upon in writing before dispatch of
personnel.
2.5 Service Limitations
2.5.1 SELLER SHALL HAVE NO RESPONSIBILITY TO REPAIR OR REPLACE BOARDS
WHICH HAVE BEEN REPAIRED IN AN UNAUTHORIZED MANNER OR WHICH HAVE
HAD THE BARCODE, SERIAL NUMBER, OR OTHER IDENTIFYING MARK
MODIFIED, REMOVED OR OBLITERATED THROUGH ACTION OR INACTION OF
CUSTOMER.
2.5.2 IN THE EVENT THAT CUSTOMER SENDS A FRU TO SELLER WHICH HAVE NO
DEFECTS OR FAILURES, SELLER MAY INVOICE CUSTOMER AT THE THEN
CURRENT FEE FOR THE SERVICES RENDERED DURING THE EVALUATION
PROCESS PROVIDED THAT SELLER'S TECHNICAL SUPPORT HAS NOT
INSTRUCTED CUSTOMER IN WRITING THAT THE FRU BE REPLACED.
3. SOFTWARE MAINTENANCE PROGRAM
The following details Seller's Software Maintenance Program ("SMP"). Annual SMP
fees are shown on Exhibit A or an Amendment thereto. SMP is included in the
Purchase Price of each SpotLight unit purchased for the Initial Term (Section
3.2.1 describes the Initial Term).
3.1 Definitions
Terms which are capitalized have the meanings set forth below or, absent
definition herein, as contained in the Purchase Agreement.
Certification the approval by Seller that Customer's current Software
is in acceptable condition for coverage under SMP.
Feature an innovation or performance improvement to Software
that is made available to all users of the current
Software release. Features are licensed to
Customer individually and may be at additional
cost.
Product Maintenance Program
================================================================================
Firmware Software in object-code form that is implanted/imbedded
in hardware.
Major Release indicates a new version of Software that adds new
Features (excluding Optional Features) or major
enhancements to the currently existing release of
Software.
Point Release indicates a modification to Software resulting from
planned revisions to the current release, or
corrections and/or fixes to the current release of
Software.
Rehosting the integration of Special Project (SP) Software into
Customer's current release of Software.
Software the object-code computer programs, licensed by Seller
for use solely in conjunction with Seller's
Products, which enables a Seller Product to
perform its functions in accordance with the
specifications set forth in Exhibit B (Performance
Specifications). Software includes Major Releases,
Point Releases and, if applicable, Features made
available to Customer under SMP.
Software Patch Software that corrects or removes a reproducible
anomaly or "bug" in an existing Major Release.
SP Software a Software Feature developed by Seller pursuant to a
specific Customer request or Customer funding of
accelerated development of a planned Software
Feature.
3.2 Term
3.2.1 THE INITIAL TERM OF SMP IS [***] FROM THE DATE OF EXECUTION OF
THE CERTIFICATE OF FINAL ACCEPTANCE FOR EACH PRODUCT ("INITIAL
TERM"). THEREAFTER, SMP IS PROVIDED BY SELLER TO CUSTOMER
PURSUANT TO THE TERMS HEREIN AND IS INCLUDED IN THE SMP ANNUAL
FEE SET FORTH IN EXHIBIT A FOR A PERIOD OF [***]. ANY SOFTWARE
PROVIDED TO CUSTOMER DURING THE TERM OF THE SMP WILL BE PROVIDED
PURSUANT TO SELLER'S SOFTWARE LICENSE AS SET FORTH IN THE
SOFTWARE LICENSE EXHIBIT OF THE PURCHASE AGREEMENT.
3.3 Scope
3.3.1 DURING THE TERM OF SMP, ALL MAJOR RELEASES, POINT RELEASES,
SOFTWARE PATCHES AND STANDARD FEATURES MADE GENERALLY AVAILABLE
BY SELLER SHALL BE AVAILABLE TO CUSTOMER AT NO ADDITIONAL
CHARGE. CUSTOMER SHALL INSTALL SUCH SOFTWARE PROMPTLY UPON
RECEIPT.
3.3.2 OPTIONAL FEATURES AND CERTAIN SIGNIFICANT ENHANCEMENTS SHALL BE
AVAILABLE AT AN ADDITIONAL CHARGE. OPTIONAL FEATURES SHALL BE
CARRIED FORWARD FROM RELEASE TO RELEASE AND NEW RELEASES MAY
INCLUDE FIXES AND ENHANCEMENTS TO OPTIONAL FEATURES.
3.3.3 CERTAIN OPTIONAL FEATURES SHALL BE SOLD ON A PER-PLATFORM BASIS
AND MAY HAVE PRICE LEVELS THAT REFLECT PLATFORM CAPACITY.
[***] 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.
Product Maintenance Program
================================================================================
3.3.4 SELLER SHALL ALSO, AT SELLER'S THEN CURRENT PRICE, REHOST
CUSTOMER'S SP SOFTWARE INTO CUSTOMER'S CURRENT RELEASE OF
SOFTWARE. SUCH REHOSTED SP SOFTWARE IS THEREAFTER PART OF
CUSTOMER'S SOFTWARE FOR THAT RELEASE.
3.3.5 CUSTOMER WILL BE RESPONSIBLE FOR THE FIRST LEVEL OF MAINTENANCE,
INCLUDING BUT NOT LIMITED TO PROBLEM IDENTIFICATION OF
REPRODUCIBLE SOFTWARE MALFUNCTIONS. IN THE EVENT OF ANY SUCH
SOFTWARE MALFUNCTION, CUSTOMER SHALL NOTIFY SELLER PROMPTLY OF
THE FAILURE THROUGH CALLING SELLER'S CUSTOMER SUPPORT.
3.3.6 SELLER SHALL PROVIDE, AT A SELLER AUTHORIZED REPAIR DEPOT, SUCH
SERVICE AS IS NECESSARY TO CORRECT SOFTWARE DEFECTS IN ACCORDANCE
WITH THE APPLICABLE DOCUMENTATION PROVIDED BY SELLER AS SOON AS
IS POSSIBLE AND ON A PRIORITY BASIS ACCORDING TO THE SEVERITY OF
THE PROBLEM.
3.3.7 SELLER SHALL PROVIDE TECHNICAL SUPPORT 24-HOUR A DAY, 7 DAYS A
WEEK. ADDITIONALLY, SELLER SHALL PROVIDE TELEPHONE ASSISTANCE AND
GUIDANCE DURING THE INSTALLATION OF NEW SOFTWARE.
3.3.8 SELLER SHALL SUPPORT THE CURRENT MAJOR RELEASE AS WELL AS THE TWO
IMMEDIATELY PRECEDING MAJOR RELEASES.
3.3.9 SELLER SHALL HAVE NO OBLIGATION TO SUPPORT ANY SOFTWARE WHICH IS
OLDER THAN THE TWO IMMEDIATELY PRECEDING MAJOR RELEASES. HOWEVER,
ANY SUPPORT PROVIDED BY SELLER FOR SOFTWARE OLDER THAN THE
IMMEDIATELY PRECEDING MAJOR RELEASE SHALL BE ON A TIME AND
MATERIAL BASIS. AN OPEN PURCHASE ORDER WILL BE REQUIRED BEFORE
ANY SUCH SERVICES ARE RENDERED.
Product Maintenance Program
================================================================================
ANNEX A: PROCEDURES FOR METAWAVE'S HARDWARE
MAINTENANCE PROGRAM
A. METAWAVE'S CUSTOMER SUPPORT CENTER
Services Center: ( 8:00 a.m.- 5:00 p.m. PST, Monday through
Friday) after hours, weekends, and holidays via pager. Customer
Support is available 365 days per year.
Domestic phone: 888-642-2455
International phone: 425-702-6550
B. RETURN MATERIAL AUTHORIZATION (RMA):
The Customer must contact the Customer Support Center via
telephone, e-mail or fax to obtain a Return Material
Authorization (RMA) number. Seller may return shipments without a
RMA number to the Customer unrepaired and at Customer's cost.
The RMA number must be written on the outside of the package.
A RMA number will not be issued until a purchase order is
provided for the repair price for those items not covered under
warranty.
C. Return Address:
All Field Replaceable Units (FRUs) must be shipped to:
Metawave Communications Corporation
8700 148/th/ Avenue NE
Redmond, WA 98052 USA
D. PACKING INSTRUCTIONS:
Customer must pack all returned equipment (including loaners and
pre-exchange equipment) in a manner no less protective to such
equipment than the manner in which Seller packages similar
equipment.
E. Purchase Orders:
Purchase orders are required in the following instances:
1. When the Customer requests Emergency Expedite Service for
out of warranty equipment.
2. When the Customer returns out of warranty equipment for
repair.
3. When Seller sends loaner or pre-exchange equipment to the
Customer prior to the defective board being received at
Seller and the equipment is out of warranty.
Note: The purchase order will only be invoiced against
if the Customer FRU to be exchanged for the loaner or
the pre-exchange equipment is not returned
Product Maintenance Program
================================================================================
within 5 days (19 days for international Customers) after
the date Seller has shipped the repaired or replacement FRUs
to Customer.
Under these circumstances, a facsimile copy of the purchase order
may be transmitted to be followed up by a confirming hard copy in
the mail. The terms and conditions of the Purchase Agreement
between Seller and the Customer shall prevail notwithstanding any
variance with the terms and conditions of any purchase orders
submitted by Customer.
F. PRICING AND INVOICING:
In Warranty Emergency Expedite Request:
---------------------------------------
Seller does not charge an Emergency Expedite Fee for equipment
covered under original warranty or covered by the Hardware
Maintenance Program.
Out of Warranty Emergency Expedite Request:
------------------------------------------
Seller charges an Emergency Expedite Fee of [***] per FRU (plus
the standard Out of Warranty Repair rates shown below) plus
freight for emergency service for equipment not covered under
HMP.
In Warranty Repair:
------------------
Seller does not charge for the repair or return shipment of
equipment that is covered under original warranty.
Out of Warranty Repair:
----------------------
All out of warranty repairs will be calculated on a time and
materials basis at [***]. If the estimated cost to repair the
defective FRU exceeds 50% of the price of a new unit, Seller will
call Customer to inform them prior to repairing defective unit.
Testing Fees:
------------
Seller charges a testing fee [***] per FRU when the Customer
requests loaner Seller equipment in support of out of warranty
equipment.
Invoices:
--------
Invoices are payable in accordance with the terms of the Purchase
Agreement between Seller and Customer.
G. EMERGENCY EXPEDITE SERVICE:
Within 24 hours of notification from Customer of an Emergency,
Seller will ship a replacement Field Replaceable Unit. Customer
must either provide Seller with a new Purchase order (a facsimile
copy of the purchase order may be transmitted to be followed up
by a confirming hard copy in the mail) or have already provided
Seller with a blanket Purchase Order if an out of warranty item
(s). An "Emergency" will constitute at least one sector losing
more than 50% of its nominal capacity.
Emergency service Monday through Friday 8:00 a.m. to 5:00 p.m.
PST will be handled by the Seller's Customer Support Center who
can be reached at 888-642-2455 domestically or 425-702-6550
internationally.
[***] 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.
Product Maintenance Program
================================================================================
After Hours, weekends and holidays via pager with a response-time
of within one hour.
H. LOANER AND PRE-EXCHANGE ORDERS:
Customer may request loaner equipment that may be used while
Customer's equipment is being repaired. Loaners are Supplied at
no cost to the Customer when equipment is covered by warranty.
Seller charges a testing fee when the Customer requests loaner
Seller equipment in Support of out of warranty equipment.
Customer must ship defective equipment within 30 days of the date
of Seller's shipment of loaner equipment to Customer and ship
loaner equipment within 30 days of the date of Seller's shipment
of the repaired equipment to Customer.
I. FREIGHT:
In Warranty:
------------
Customer shall ship the equipment to Seller on a prepaid basis
and Seller will return the equipment to the Customer on a prepaid
basis, not billing Customer for freight.
Out of Warranty:
---------------
Customer shall ship the FRU to Seller for repair on a prepaid
basis and Seller will prepay and invoice the Customer for return
freight.
J. DUTIES AND TAXES:
All duties, customs clearance fees and any and all taxes will be
the responsibility of the Customer.
K. NON-COMPLIANCE:
Failure to comply with any of the procedures may result in delay
or non-delivery of the equipment.
L. CONFLICTING TERMS:
In the event that the terms contained herein conflict with the
terms of the Purchase Agreement between Seller and Customer, the
terms of the Purchase Agreement shall govern.
EXHIBIT F: ACCEPTANCE TEST PROCEDURE (ATP)
(for the SpotLight Multibeam Antenna Platform)
TO THE AGREEMENT
BETWEEN
METAWAVE COMMUNICATIONS CORP. ("SELLER")
AND
ST. PETERSBURG TELECOM ("CUSTOMER")
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)1998, METAWAVE COMMUNICATIONS CORPORATION
- --------------------------------------------------------------------------------
SpotLight Multibeam Antenna Platform Acceptance Test Procedure
================================================================================
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............................................ 8
2.5. Alarm Functionality Test............................................ 9
2.6. Call Processing Test................................................ 11
SpotLight Multibeam Antenna Platform Acceptance Test Procedure
================================================================================
SPOTLIGHT ACCEPTANCE TEST PROCEDURE
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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.
Spotlight Multibeam Antenna Platform Acceptance Test Procedure
================================================================================
[***]
[***] 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 G: RESPONSIBILITY MATRIX
TO THE PURCHASE AGREEMENT
BETWEEN
METAWAVE COMMUNICATIONS CORP. ("SELLER")
AND
ST. PETERSBURG TELECOM ("CUSTOMER")
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.
1998, Metawave Communications Corporation
(C) 1998, METAWAVE COMMUNICATIONS CORPORATION
CONFIDENTIAL PROPRIETARY
- --------------------------------------------------------------------------------
[***]
[***] 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 H: PROJECT SCHEDULE
TO THE PURCHASE AGREEMENT
BETWEEN
METAWAVE COMMUNICATIONS CORP. ("SELLER")
AND
ST. PETERSBURG TELECOM ("CUSTOMER")
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.
1997, Metawave Communications Corporation
(C)1997, METAWAVE COMMUNICATIONS CORPORATION
CONFIDENTIAL PROPRIETARY
- --------------------------------------------------------------------------------
Product Maintenance Program
================================================================================
PROJECT SCHEDULE
METAWAVE SHALL USE REASONABLE EFFORTS TO ACCELERATE THE ATTACHED SCHEDULE.
PERFORMANCE OF THE ATTACHED SCHEDULE IS SUBJECT TO THE TERMS AND CONDITIONS
OF THE AGREEMENT BETWEEN THE PARTIES.
[No Schedule Attached]