EXHIBIT 10.17
Certain information in this Exhibit has been omitted and filed separately
with the Securities and Exchange Commission pursuant to a confidential treatment
request.
EXHIBIT 10.17
METAWAVE COMMUNICATIONS CORPORATION/
GTE Wireless Inc.
Purchase Agreement
Document Number #1003-PA
Metawave Communications Corporation
10735 Willows Road NE
Redmond, WA 98073-9769 USA
Tel. 425 702-5600
Fax 425 702-5970
http://www.metawave.com
TABLE OF CONTENTS
1. AGREEMENT.............................................................. 3
2. DEFINITIONS............................................................ 3
3. PURCHASE ORDERS / CANCELLATIONS........................................ 5
4. SHIPPING, TITLE, RISK OF LOSS.......................................... 6
5. INVOICES AND PAYMENT................................................... 6
6. WARRANTY............................................................... 8
7. OBLIGATIONS OF CUSTOMER................................................ 9
8. INFRINGEMENT INDEMNITY................................................. 10
9. INDEMNIFICATION........................................................ 11
10. TERM AND TERMINATION................................................... 11
11. ASSIGNMENT............................................................. 11
12. NOTICES................................................................ 12
13. COMPLIANCE WITH LAWS................................................... 12
14. FORCE MAJEURE.......................................................... 12
15. GOVERNING LAW; DISPUTE RESOLUTION...................................... 13
16. CONFIDENTIALITY........................................................ 13
17. GENERAL PROVISIONS..................................................... 14
EXHIBIT A: PRODUCTS AND SERVICES PRICING
EXHIBIT B: PRODUCT SPECIFICATIONS
EXHIBIT C: PERFORMANCE ACCEPTANCE PROCEDURE
EXHIBIT D: PRODUCT MAINTENANCE PROGRAM
EXHIBIT E: SOFTWARE LICENSE
EXHIBIT F: COMMISSIONING CERTIFICATE
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METAWAVE COMMUNICATIONS CORPORATION
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (this "Agreement") is made as of this eighth
day of September, 1998 (the "Effective Date") between Metawave
Communications Corporation, a Delaware corporation ("Seller"), and GTE
Mobilnet of California Limited Partnership, by GTE Wireless Incorporated,
its General Partner on its behalf and its Affiliates ("Customer").
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 sell to Customer, and Customer agrees to purchase by
submitting a Customer Purchase Order to Seller, the Products and Services
identified on Exhibit A to this Agreement in accordance with the
specifications and the terms and conditions hereof and at the Purchase
Prices set forth in Exhibit A. 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 all Purchase Orders for the
Products and Services 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 different or
inconsistent terms in any acknowledgment, confirmation, invoice, Purchase
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:
"Affiliate" shall mean any partnership, corporation or other entity
which is incorporated in the United States and in which GTE Wireless
Incorporated, directly or indirectly, owns more than fifty percent (50%) of
the voting shares, or owns a controlling interest.
"Change Order" shall mean any subsequent change to a Purchase Order
initiated by either party and mutually agreed to by both parties, including
but not limited to, changes in Site configuration and Products and Services
needed at the Site.
"Commissioning" shall mean the procedures required to place the
Product into commercial service at a particular Site as described in the
Product system manual and the
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completion of which for Follow-on Orders is shown by evidence of Customer's
signature on the Commissioning Certificate attached hereto as Exhibit F.
"Follow-on Order" shall mean any Purchase Order in excess of the
Initial Order submitted by Customer.
"Initial Order" shall mean Customer's initial purchase of one or more
Products (and any associated Services) for deployment in the Customer's
California market and ordered as a part of this Purchase Agreement and as
described in Exhibit A.
"Performance Acceptance" shall mean, for the Initial Order,
Customer's written notification to Seller of the Certificate of Performance
Acceptance specified in Exhibit C, that the Products satisfy the
Performance Criteria set forth in Exhibit C.
"Performance Acceptance Procedure" shall mean, for the Initial Order,
the testing procedures and protocols used to determine Product performance
levels as described in Exhibit C.
"Performance Criteria" shall mean the [**] set forth in Exhibit C,
Section 3.7.3. to be [**] for the [**] Products [**] Initial Order [**]
Performance Evaluation Period.
"Performance Evaluation Period" shall mean the [**] in Exhibit C
3.7.2.1. [**] Products will [**] in [**] Performance Criteria.
"Products" shall mean the SpotLight(TM) 2000 spectrum management
systems, consisting of hardware and Software, listed in Exhibit A hereto or
any additional products set forth in any amendments thereto as may be
subsequently agreed to from time to time by Seller and Customer.
"Purchase Order" shall mean any purchase order Customer may deliver to
Seller for the purchase of the Products and/or Services which incorporates
the terms and conditions of this Agreement and which has been accepted by
Seller.
"Purchase Price" shall mean the price of the Products and the price of
the Services shown in Exhibit A 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 Customer.
"Services" shall mean the engineering services set forth in Exhibit A
or any additional services set forth in any amendments to Exhibit A as may
be subsequently agreed to from time to time by Seller and Customer.
"Site" shall mean each of the Customer cell site locations at which a
Product is installed.
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RESPECT TO THE OMITTED PORTIONS.
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"Site Survey" shall mean the survey of a Site performed by Seller to
determine the Product configuration and scope of services required for the
proper installation and Commissioning of the Product.
"Software" shall mean the (i) object-code computer programs embedded
in the Product which control and monitor the operation of the Product
("Embedded System Software"), and (ii) the Lamplighter/TM/ PC-based
graphical user interface computer program for the Product, and all
Features, Major Releases, Point Releases, and Software Patches (as such
terms are defined in Exhibit D), other updates and modifications to such
Software (the "Software Updates") and any documentation in support thereof.
"Software License" shall mean the software license set forth in
Exhibit E.
"Specifications" shall mean the specifications for the Products set
forth in Exhibit B and incorporated herein.
3. PURCHASE ORDERS/CANCELLATIONS
a. When Customer wishes to purchase Products and Services pursuant to this
Agreement, Customer shall notify the Designated Representative of
Seller specified in Section 12 hereof. Seller's Designated
Representative (or his agents) shall, with a representative of
Customer, conduct a Site Survey for each Site to determine the
configuration, Products, scope of Services and any other ancillary
equipment required for each Site. The Designated Representative shall
then develop an equipment list and price sheet for the Products and
Services required for each Site using the prices set forth in Exhibit A
(the "Quotation").
b. Following receipt of the Quotation, Customer shall order Products and
Services by submitting a Purchase Order to which the Quotation shall be
attached and made a part thereof. The Purchase Order shall also include
the desired delivery date and whether partial deliveries are
acceptable. Purchase Orders should be submitted by Customer to Seller
at least 90 days prior to date of delivery for such Products and
Services. Upon receipt of the Purchase Order, Seller shall have five
(5) business days to accept or reject the Purchase Order in writing.
c. In the event that the Customer submits a Purchase Order without a
Quotation, such Purchase Order shall be subject to completion of a Site
Survey by Seller. If following the completion of the Site Survey,
Seller determines that Product configurations and or the Services set
forth in the Purchase Order must be changed, Seller shall, within ten
(10) days of completion of the Site Survey, notify Customer with a
written proposal for changes to the Purchase Order. Upon receipt,
Customer shall have five (5) business days to accept or reject the
written proposal for changes. If accepted, Customer shall execute a
written Change Order to reflect the required changes identified by the
Site Survey. If Customer rejects the Change Order Customer may cancel
the Purchase Order subject to Section 3(d) below.
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d. Customer may cancel or delay delivery of a Product contained in any
Purchase or Change Order prior to Seller's shipment of the Product
subject to the terms herein. Any such cancellation or delay must be
made by written notification. If Customer directs such cancellation or
delay with less than 30 days written notice from the delivery date
specified in Purchase Order or Change Order, Customer shall pay to
Seller any reasonable costs associated with such cancellation or delay
provided, however, that any such costs shall not exceed in the
aggregate ten percent (10%) of the Purchase Price of each canceled or
delayed Product. Customer shall not be obligated to pay any such costs
if Customer timely exercises its cancellation rights under section 3(c)
hereof.
e. Within thirty days following execution of this Agreement, Customer
shall give Seller a non binding forecast of Customer's estimated
requirements for the Products and Services for the forthcoming twelve
(12) months such forecast shall be updated by Customer on a monthly
basis.
4. SHIPPING, TITLE, RISK OF LOSS
a. Unless otherwise instructed by Customer, and subject to Section 3,
Seller shall ship all Products to the destination designated in a
Purchase Order on or before the delivery date(s) specified in a
Purchase Order and render invoices in accordance with Section 5 below.
Customer is responsible for the payment of all reasonable shipping
charges, except as noted in Section 4(b) below.
b. Products shall be packed by Seller, at no additional charge to
Customer, in containers adequate to prevent damage during reasonable
shipping, handling and storage. Customer shall be responsible for
payment of any warehousing or storage charges for the Products
following delivery of the Products to Customer.
c. For the Initial Order, title to and risk of loss or damage to Products
sold by Seller to Customer hereunder shall pass to Customer upon
Performance Acceptance. For all Follow-on Orders title to and risk of
loss or damage to Products sold by Seller to Customer hereunder shall
pass to Customer upon shipment of Products to Customer. Title to
Software shall remain with Seller in all cases pursuant to the terms of
the Software License attached as Exhibit E hereto.
5. INVOICES AND PAYMENT
a. For the Products in the Initial Order only, the payment schedule shall
be as follows:
1. Seller shall render an invoice for one hundred percent (100%) of
the Purchase Price of the Products and one hundred percent (100%)
of the Purchase Price of the Services associated with such Products
upon Performance Acceptance.
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2. In the event that Performance Acceptance for the Products in the
Initial Order does not occur and Seller has indicated in writing
that it will no longer pursue Performance Acceptance, Customer
shall have the option of either (i) completing the purchase of the
Products in which case Seller shall render an invoice for the
balance due or (ii) returning the Products to the Seller. If
Customer chooses to return the Products to Seller, Seller shall de-
install such Products at Seller's expense and repair any damage to
or reverse any modifications to the Customer's equipment at the
Site caused by Seller during installation of the Products and
during the Performance Evaluation Period. Seller shall arrange for
and pay the costs of shipping and assumes the risk of loss and
damage to Products during shipment of the Products back to its
headquarters in Redmond, Washington.
b. For Follow-on Orders for Products, to be installed by Seller, Seller
shall render invoices as follows: (i) [**] of the Purchase Price of
each Product upon shipment of a Product to Customer, and (ii) [**] of
the Purchase Price of each Product and one hundred percent (100%) of
any associated Services promptly following the Commissioning of a
Product. For Follow-on Orders, to be installed by Customer, Seller
shall invoice Customer for one hundred percent (100%) of the Purchase
Price of each Product upon shipment of Product to Customer.
c. For Follow-on-Orders for Services only, Seller shall render invoices
for 100% of the Purchase Price upon the completion of the Services, or
on alternative milestones based upon mutual agreement of the parties.
d. All invoices shall be computed on the basis of the prices set forth
in Exhibit A (including any applicable discounts) and shall identify
and show separately quantities of Products, type of Services, total
amounts for each item, shipping charges, insurance charges, applicable
sales or use taxes and total amount due. Customer shall promptly pay
Seller the amount due within thirty (30) days of the date of receipt of
the invoice, except for the Initial Order only which shall be due
ninety (90) days of the date of receipt 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 remains
unpaid.
e. Excluding income, business and licensing taxes, Customer shall be
responsible for the payment of all sales, use and any other taxes
applicable specifically to the sale of the Products and Services
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.
f. 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
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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.
6. WARRANTY
a. Seller warrants, for the Initial Order, for a period of [***] from the
date of Performance Acceptance and for all Follow-on Orders, for a
period of [***] from the shipment of a Product to Customer (the
"Warranty Period") that (i) all Products furnished hereunder will be
free from defects in materials, workmanship and title, (ii) all
Products will conform in all material respects to the documentation and
specifications provided by the Seller herein, (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 conform in all
material respects 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 merchantability and fitness for a
particular purpose.
b. Seller represents that, in connection with Calendar-Related data and
Calendar-Related processing of Date Data or of any System Date, the
Product will not malfunction, will not cease to function, will not
generate incorrect data, and will not produce incorrect results. Seller
further represents that, in connection with providing Calendar-Related
data to and accepting Calendar-Related data from other automated,
computerized, and/or software systems and users via user interfaces,
electronic interfaces, and data storage, the Product represents dates
without ambiguity as to century. Seller further represents that Seller
has verified through testing that the Products are century compliant
and that testing included, without limitation, each of the following
specific dates and the transition to and from each date: December 31,
1998; January 1, 1999; September 9, 1999; September 10, 1999; December
31, 1999; January 1, 2000; February 28, 2000; February 29, 2000; March
1, 2000; December 31, 2000; January 1, 2001; December 31, 2004; and
January 1, 2005. These representations survive the expiration or
earlier termination of this Agreement. For purposes of this section,
"Calendar-Related" refers to date values based on the Gregorian
calendar, as defined in Encyclopedia Britannica, 15th edition, 1982,
page 602, and to all uses in any manner of those date values, including
without limitation manipulations, calculations, conversions,
comparisons, and presentations; "Date Data" means any Calendar-Related
data value in the inclusive range January 1, 1900 through December 31,
2094, which the Product uses in any manner; and "System Date" means any
Calendar-Related data value in the inclusive range January 1, 1985
through December 31, 2094 (including the natural transition between
such values), which the Product shall be able to use as its current
date while operating.
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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
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c. Customer and Seller shall handle all warranty claims in accordance with
the procedures set forth in Exhibit D hereto (Product Maintenance). The
actions taken by Seller under the Product Maintenance Program
procedures set forth in Exhibit D shall be the full extent of Seller's
liability and Customer's exclusive remedy with respect to a claim under
this Section 6.
d. This warranty does not apply to any claim which arises out of any 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 by Customer; (iii) the Product has been
installed, Commissioned, 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 parts have been used in
the Product which are not approved by Seller; (v) the Product is not
maintained pursuant to Seller maintenance programs or under the
supervision of a person who has been certified by Seller to provide
such maintenance service through completion of a Seller-sponsored
training course; (vi) an event of Force Majeure has occurred; (vii) the
failure of third party antennas, antenna lines or interconnection
facilities not provided by Seller at the Site.
7. OBLIGATIONS OF CUSTOMER
In addition to performing the other obligations set forth in this
Agreement, Customer shall:
a. Procure from appropriate regulatory authorities all zoning approvals,
necessary permits and station licenses as may be required to install
and operate Customer's wireless system incorporating the Products prior
to the date agreed by the parties for the commencement of installation
of those Products;
b. Prepare the Site for the installation of the Product and performance of
the Services as specified in the Scope of Work to be mutually agreed by
both parties for each Site prior to the date agreed by the parties for
the commencement of installation of those Products;
c. Agree with Seller on a date for the commencement of Services and in the
event that the commencement of Services is delayed due to the failure
of Customer to comply with the foregoing obligations, Seller shall be
entitled to recover reasonable costs and expenses associated with
mobilizing and compensating Seller personnel during the delay.
d. Provide safe and secure access to the Sites for Sellers employees
during the performance of Services.
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8. INFRINGEMENT INDEMNITY
a. Seller shall indemnify and hold harmless Customer against any and all
liabilities, losses, costs, damages and expenses, including reasonable
attorney's fees, associated with any claim or action for actual or
alleged infringement by any Product or Software supplied in accordance
with this Agreement of any United States patent, trademark, copyright,
trade secret or other intellectual property right incurred by Customer
as a result of Customer's use of such Products or Software in accordance
with this Agreement provided that (i) Customer promptly notifies Seller
in writing of the claim, (ii) Customer gives Seller full opportunity and
authority to assume sole control of the defense and all related
settlement negotiations, and (iii) Customer gives Seller information and
assistance for the defense (Customer will be reimbursed for reasonable
costs and expenses incurred in rendering such assistance, against
receipt of invoices therefor). 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
claims, may be assessed against Customer on account of such alleged
infringement and shall pay resulting settlements, costs and damages
finally awarded against Customer by a court of law, arbitration or other
adjudication of the claim.
b. Customer agrees that if the Products or Software become, or in Seller's
opinion are likely to become, the subject of such a claim, Customer will
permit Seller, at Seller's option and expense, either to procure the
right for Customer to continue using such Products or Software or to
replace or modify same so that they become non-infringing as long as
they continue to conform in all material respects to the specifications
contained in this Agreement and Exhibits, 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 or Software and all the
rights thereto at Seller's expense. Customer shall receive a refund of
the prorated undepreciated portion of the Purchase Price actually paid
by Customer to Seller for the returned portion of the Products. The
Purchase Price shall be straight-line depreciated over a five (5) year
period.
c. Seller shall have no obligation to Customer with respect to any claim of
patent or copyright infringement which is based upon (i) adherence to
specifications, designs or instructions furnished by Customer, (ii) the
combination, operation or use of any Products supplied hereunder with
products, software or data with which the Products are not intended to
be used or for which the Products are not designed, (iii) the alteration
of the Products or modification of any Software made by any party other
than Seller; or (iv) the Customer's use of a superseded or altered
release of some or all of the Software if infringement would have been
avoided by the use of a subsequent unaltered release of the Software
that is provided to the Customer.
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9. INDEMNIFICATION
Seller shall indemnify Customer, its employees and directors, and each
of them, against any loss, damage, claim, or liability, arising out of, as
a result of, or in connection with the use of the Product in accordance
with this Agreement or the acts or omissions, negligent or otherwise, of
Seller in the performance of this Agreement, or a contractor or an agent of
Seller or an employee of anyone of them, except where such loss, damage,
claim, or liability arises from the sole negligence or willful misconduct
of Customer, agents or its employees. Seller shall, at its own expense,
defend any suit asserting a claim for any loss, damage or liability
specified above, and Seller shall pay any costs, expenses and attorneys'
fees that may be incurred by Customer in connection with any such claim or
suit or in enforcing the indemnity granted above, provided that Seller (i)
is given prompt notice of any such claim or suit and (ii) full opportunity
to assume control of the defense or settlement. Customer shall, at its
discretion, have the right to reasonably participate in the defense and
settlement of any claim asserted against Customer, including, but not
limited to, choice of counsel and any settlement, but Seller shall have
final authority to choose counsel and determine whether or not to settle a
claim. Neither Seller nor Customer shall not be liable to the other for
indirect or consequential damages, including but not limited to lost
profits or revenue.
10. TERM AND TERMINATION
The term of this Agreement shall be three (3) years 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. 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.
11. ASSIGNMENT
a. Any assignment by either party to this Agreement or any other interest
hereunder without the other party's prior written consent, shall be
void, except assignment to a person or entity who acquires all or
substantially all of the assets, business or stock of Seller, whether by
sale, merger or otherwise.
b. Customer shall not (i) assign, sublicense or otherwise transfer the
Software License set forth in Exhibit E, to any third party other than
an Affiliate without the prior consent of the Seller, (ii) purchase a
Product solely for the purpose of reselling or distributing it to
another party, (iii) transport, relocate, or otherwise transfer the
Products or the Software outside the United States, or (iv) permit its
directors, officers, employees, agents or any other third person to
modify, copy, decompile, disassemble or reverse engineer the Products or
the Software.
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.
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12. 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 Customer:
Metawave Communications GTE Mobilnet of California
Corporation 12677 Alcosta Blvd
10735 Willows Road NE Dept. 500, PO Box 5011
Redmond, WA 98073 San Ramon, CA 94583-0811
Attn.: Richard Henderson Attn.: Hal Horton, Manager
VP, Sales Area Programs
Copy to: Kathy Surace-Smith Copy to: Randy Golden
General Counsel Regional Counsel
Fax: 425 702 5976 Fax: 925 904 3624
Seller's Designated Representative for Section 3 shall be Mike
Kavanagh or Mike Lewandowski.
The address to which notices or communications may be given to either
party or the names of the Designated Representatives may be changed by
written notice given by such party to the other pursuant to this Section
12.
13. 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.
14. 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. If
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such delay continues for 45 days, either party may terminate the Purchase
Order affected by the event by providing written notice.
15. GOVERNING LAW; DISPUTE RESOLUTION
a. This Agreement and each Purchase Order shall be construed in accordance
with the internal laws of the State of California, 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 to be held in a mutually agreed location in the
United States, using 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 the parties, the dispute cannot be resolved by
mediation, then a party may institute litigation in a court having
subject matter jurisdiction, and the parties expressly consent and
submit themselves to the personal jurisdiction of such court. If
compliance with this section would result in expiration of any statute
of limitations for the filing of a court action, the statute of
limitations shall be tolled for the period of time required to comply
with this section.
16. CONFIDENTIALITY
a. During the term of this Agreement and thereafter it may be necessary for
Seller and Customer to mutually exchange certain information, data and
proprietary material relating to marketing, sales, technical, financial
and other matters involving the Products, this Agreement or the
relationship between the Seller and Customer. In order to be treated as
confidential hereunder ("Confidential Information"), information
disclosed in writing shall be marked as confidential or proprietary, and
the disclosing party shall indicate the confidential nature of oral
information at the time of disclosure and provide written confirmation
thereof within fifteen (15) days following such disclosure. All
Confidential Information shall:
1. Be received and retained in the strictest confidence by the parties
and will be deemed to be proprietary information of the disclosing
party and the recipient(s) agree(s) that it will not disclose it to
third parties and further will treat such information, data or
material as proprietary using the same degree of care that it (or
they) would normally use in protecting its (or their) own proprietary
information; and
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2. Be used by the parties hereto solely for the purpose of implementing
this Agreement.
b. This provision shall not apply to any Confidential Information which:
(i) is known by the receiving party prior to the date of disclosure by
the disclosing party, and is not subject to or in violation of an
obligation of confidentiality; (ii) is or become public knowledge other
than by default of the receiving party; (iii) is obtained by the
receiving party from a bona-fide third party having free right of
disposal of such information; (iv) is wholly and independently developed
by receiving party without reference to the Confidential Information; or
(v) the receiving party is required to disclose pursuant to any law,
regulation or a valid order of a court or other governmental body or any
political subdivision thereof, provided, however, that the recipient of
the information shall first have given notice to the disclosing party
and made a reasonable effort to obtain a protective order requiring that
the information and/or documents so disclosed be used only for the
purposes for which the order was issued.
c. Subject to the foregoing, this Agreement shall also be treated
confidentially by all parties hereto.
d. This section shall survive any termination of the Agreement for a period
of three (3) years.
17. GENERAL PROVISIONS
a. 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.
b. Any waiver by any party of any breach or failure to comply with any
provision of this Agreement by the other party must be in writing and
shall not be construed as, or constitute, a continuing waiver or such
provision, or a waiver of any other provision of this Agreement.
c. 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 of Seller
and Customer shall be construed and enforced accordingly.
d. This Agreement, including all Exhibits which are attached to and hereby
incorporated into this Agreement, shall constitute the entire agreement
between Customer and Seller with respect to the subject matter hereof
and supersedes all prior agreements, covenants, arrangements,
communications, representations or warranties, whether oral or written,
by any party or any officer, employee or representative of any party
with respect to the subject matter hereof.
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e. Any amendment or modification of this Agreement or any Exhibit must be
in writing and signed by a duly authorized representative of each of the
parties.
f. This Agreement applies only to sales of Products and Services in the
United States.
g. 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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective duly authorized representatives.
Metawave Communications Corporation GTE Mobilnet of California Limited
Partnership by GTE Wireless, Inc., its
General Partner
By:/S/ Richard Henderson By: /S/ Annette M. Jacobs
Name: Richard Henderson Name: Annette M. Jacobs
Title: Vice President Sales Title: Area President, California
and Marketing
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SOFTWARE LICENSE AGREEMENT
EXHIBIT E
TO THE PURCHASE AGREEMENT
BETWEEN
METAWAVE COMMUNICATIONS CORPORATION ("SELLER")
AND
GTE ("CUSTOMER")
1. DEFINITIONS
"Agreement" shall mean the Purchase Agreement between Seller and Customer
executed concurrently herewith, and the Exhibits attached thereto,
including this Exhibit E (Software License).
"Software" shall mean the (i) object-code computer programs embedded in the
SpotLight System which control the operation of the SpotLight System
("Embedded System Software"), and (ii) the LampLighter PC-based graphical
user interface computer program used to monitor the operation of a
SpotLight System and all Features, Major Releases, Point Releases, Software
Patches (as such terms are defined in Exhibit D Product Maintenance
Program), updates and modifications ("Software Updates") and any
documentation in support thereof.
"SpotLight System" shall mean a single SpotLight(TM) 2000 spectrum
management system as described in Exhibit B.
Any terms not defined herein shall have the same meanings as in the
Agreement and the Exhibits thereto.
2. SCOPE
Pursuant to the Agreement, Software will be delivered by Seller to Customer
for use with a SpotLight System according to the terms of the Agreement and
this Exhibit. Customer shall then become a licensee with respect to such
Software.
3. LICENSING GRANT
3.1 Concurrent with execution of the Agreement, and subject to the terms
and conditions set forth herein, 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 to routinely operate and monitor the SpotLight System with
which the Software was delivered.
3.2 The Software licensing fees for the most current versions of the
Embedded System Software and LampLighter Software (available at the
time of purchase of a
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SpotLight System) are included in the Purchase Price of a SpotLight
System. Software Updates are available under the Software Maintenance
Program described in Exhibit D or for additional licensing fees.
4. LIMITATIONS ON USE OF SOFTWARE
4.1 Without the prior written consent of Seller, Customer shall only use
the Software in conjunction with a single SpotLight System delivered
to Customer under the terms of the Agreement.
4.2 The license granted to Customer in Section 3 is personal and may only
be transferred to another SpotLight or site or another entity in
accordance with Section 11(b) of the Agreement.
4.3 The Software is subject to laws protecting patents, trade secrets,
know-how, confidentiality and copyright.
4.4 Customer shall not translate, modify, adapt, decompile, disassemble,
or reverse engineer the Software or any portion thereof.
4.5 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).
4.6 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.
4.7 Customer acknowledges that Seller owns the Software and that any
rights therein not specifically granted in this License are the
exclusive property of Seller.
5. RIGHT TO COPY, PROTECTION AND SECURITY
5.1 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
three (3) printed copies and three (3) machine-readable copies shall
be in existence at any one time without the prior written consent of
Seller, other than copies electronically resident in SpotLight
Systems.
5.2 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.
5.3 Customer agrees to keep confidential, in accordance with the terms of
the Agreement or a non disclosure agreement signed by the parties, and
not provide or otherwise make available in any form any Software or
its contents, or any portion
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thereof, or any documentation pertaining to the Software, to any
person other than employees of Customer or Seller.
5.4 Software 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.
5.5 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.
6. 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, in addition to any
other legal or equitable remedy, seek temporary or permanent injunctive
relief without the need to prove actual harm in order to protect Seller's
interests.
7. TERM
Unless otherwise terminated, pursuant to Section 8 hereof, the term of the
license granted pursuant to Section 3 herein shall be perpetual.
8. TERMINATION
8.1 The license granted hereunder may be terminated by Customer upon one
(1) month's prior written notice.
8.2 Seller may terminate the license granted hereunder if Customer is in
material default of any of the terms and conditions of this Exhibit E
and such termination shall be effective if Customer fails to correct
such default within thirty (30) days after written notice thereof by
Seller, provided, however, that if such default cannot reasonably be
cured within thirty (30) days after written notice by Seller, and
Customer diligently commences to correct such default within such
thirty (30) days of written notice, the termination by Seller shall
become effective if Customer fails to correct such default within
ninety (90) days of such written notice. The provisions of Sections 4
and 5 herein shall survive termination of any such license.
8.3 In the event that Customer is required to return the Software,
pursuant to Section 8(b) of the Purchase Agreement, or in the event
that Customer returns a SpotLight System pursuant to Section 5(a)(2)
of the Purchase Agreement, this license shall terminate immediately
upon such return of the Software or Product to Seller.
8.4 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.
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9. RIGHTS OF THE PARTIES
9.1 Nothing contained herein shall be deemed to grant, either directly or
by implication, estoppel, or otherwise, any license under any patents,
patent applications or copyrights of Seller except as expressly
granted herein.
9.2 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.
9.3 During the term of the license granted pursuant to Section 3 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 reasonable 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 and/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.
9.4 Customer 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. Customer acknowledges that Seller
or its licensors have the right to enforce these provisions against
Customer, whether in Seller's or its licensor's name.
10. 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
determine that is meets Customer's needs. Customer accepts the Software "as
is" subject to the warranty set forth in Section 6 of the Purchase
Agreement.
11. SOFTWARE OBJECT CODE AND DOCUMENTATION
In the event Seller becomes insolvent, ceases to carry on business on a
regular basis or fails to perform its maintenance obligations herein and
Customer purchases Seller's annual Hardware and Software Product
Maintenance Program, then Seller shall immediately furnish to Customer the
latest version of Product object code and documentation, training materials
and any necessary information to enable Customer to maintain such Products
or contract with others for such work.
12. ENTIRE UNDERSTANDING
12.1 This Exhibit E is a part of, and is to be read together with, the
Agreement which contains additional terms and conditions, warranties
and indemnities applicable to the Software.
12.2 Notwithstanding anything to the contrary in other agreements,
purchase orders or order acknowledgments, the Agreement, the Software
specifications set forth in Exhibit B and this Exhibit E set forth
the entire understanding and obligations regarding use of Software,
implied or expressed.
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