EXHIBIT 10.7
ORIGINAL EQUIPMENT MANUFACTURER (OEM) AGREEMENT
This Original Equipment Manufacturer Agreement ("Agreement") is established
between Motorola, Inc., a Delaware corporation, by and through its Network
Solutions Sector with offices at 0000 X. Xxxxx Xxxxx, Xxxxxxxxx Xxxxxxx, XX
00000 (hereinafter "Motorola"), and Airspan Communications, Ltd., a company
incorporated under the laws of England and Wales, with offices at Xxxxxxxxx
Xxxxx, Xxxxxx Xx, Xxxxxxxx, XX0 0XX, Xxxxxx Xxxxxxx (hereinafter "Company).
Motorola and Company may each be referred to individually as a "Party" or
collectively as "Parties" to this Agreement.
Recitals
WHEREAS, Motorola is in the business of designing, developing,
manufacturing, selling and licensing wireless communication system equipment and
software for the operation of cellular and wireless telecommunications systems
on a worldwide basis.
WHEREAS, Company is in the business of developing and licensing certain
hardware and software products for Wireless Local Loop applications and
providing technical support and maintenance services for such products.
WHEREAS, Motorola desires to purchase and license certain hardware
equipment, software and services for products that will be used in Wireless
Local Loop applications in the 3.5 GHz band and Company desires to provide
certain hardware, software and services to support Motorola's line of wireless
communication system products, in accordance with the terms and conditions set
forth in this Agreement.
Agreement
NOW, THEREFORE, in consideration of the promises and mutual covenants
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby mutually acknowledged, the Parties agree as
follows:
1. Scope of Agreement.
1.1 This Agreement sets forth the terms and conditions governing the
purchase and license of the Products (as hereinafter defined) by
Motorola. Motorola shall have the right to purchase and license
Products: for Motorola's own internal use for the purpose of Customer
support; or for resale and sublicense to Customers for worldwide use
except for where a conflict may be created by existing agreements that
Company currently has in place as listed in Exhibit G, as those
agreements may be renewed, modified and assigned, provided that such
modifications do not further limit Motorola's ability to distribute as
set forth in Exhibit G . The Parties agree to follow the procedures for
Key Accounts as set forth in Exhibit L.
1.2 The Parties agree to work together in good faith to develop a
mutually acceptable process for Project Level Agreements that may
extend beyond the scope of this agreement, as set forth in Exhibit E.
1.3 The Parties anticipate that they will cooperate on one or more
opportunities which may include invitations to tender, requests for
proposal or quotation, requests for trial equipment and other
expressions of interest for the sale of Products to potential Customers
that require
-1-
contemplation of terms that fall outside of this Agreement. In that
connection, the Parties may enter into specific Project Level
Agreements, as set forth in Exhibit E, which shall, among other
provisions, specify the terms and conditions of such arrangements
including the respective responsibilities of the Parties in providing
trial equipment to potential Customers. Furthermore, in the event that
system performance guarantees are required by Customers, the Parties
shall work together on a case by case basis to provide such system
performance guarantees.
2. Definitions.
(a) "Affiliate" means any corporation or other entity which
controls, is controlled by, or is under common control with a
Party. A corporation or other entity shall be deemed to
control another if it owns or controls more than fifty percent
(50%) of the voting stock or other ownership interest of the
corporation or entity. References herein to Motorola and
Company shall be deemed to include reference to their
Affiliates unless otherwise specified or the context otherwise
requires. For the avoidance of doubt, Motorola Affiliates
shall include all operating divisions of Motorola, Inc.
(b) "Confidential Information" means confidential or proprietary
data or information of either Party or any of its Affiliates
which is disclosed in oral, written, graphic, machine
recognizable, sample or any other form, by one Party to the
other Party and which is clearly designated or marked as
confidential or proprietary. In order for information
disclosed orally to be considered Confidential Information, it
must be identified as confidential at the time of disclosure
and shall be confirmed in writing by the disclosing Party
within forty-five (45) days after such disclosure.
Notwithstanding anything to the contrary herein, the receiving
Party shall have no obligation to preserve the confidentiality
of any information which was previously known to the receiving
Party free of any obligation to keep it confidential; is
distributed to third parties by the disclosing Party without
restriction; is or becomes publicly available, by other than
unauthorized disclosure by the receiving Party; is
independently developed by the receiving Party; is received
rightfully and without confidential limitation by the
receiving Party from a third party; or is disclosed to a
governmental authority lawfully demanding Confidential
Information provided that the disclosing Party provides prior
written notice to the other Party and assists the other Party
with information as they seek a protective or other such
order, provided confidentiality is otherwise maintained by the
Parties after such disclosure.
(c) "Customers" means, individually or collectively, as
applicable, all entities, their successors and assigns, in the
chain of distribution, sale and use of Products, including
without limitation, Motorola Affiliates (subsidiaries, joint
ventures, third party licensees), resellers, agents,
representatives, distributors, system operators and End Users.
(d) "Documentation" includes, but is not limited to, all product
technical, repair, marketing and user documentation and any
succeeding changes thereto, including, without limitation, all
specifications as set forth in Company's product manuals;
installation, maintenance, operating and Customer manuals,
instructions and diagnostics; system administrative materials;
configuration guides; marketing and sales brochures and
literature; and product guides as listed in Exhibit H.
Documentation shall include, if applicable, documentation
provided to Company by its suppliers or licensors to the
extent Company is authorized by them to provide such material
on the terms in this Agreement. "Documentation" does not
include Source Code.
(e) "End-User" means a customer or prospective customer of
Motorola to whom Motorola offers Products for use in the
regular course of such customer's business and not for resale.
(f) "Epidemic Failure" means a significant repetitive, verifiable
and measurable defect that occurs in any portion of the
Products which is attributable to a failure of the Products to
-2-
operate in accordance with the respective Specifications and
which is of either of the following types: (i) Emergency - The
defect causes network failure or loss of important information
which is essential for the network operator to do business or
a defect that constitutes a safety risk; or (ii) High - The
defect seriously effects the way in which the network operator
conducts business but does not prevent business from
continuing, and there may be some impact on network
subscribers. There is no work-around solution available for an
Epidemic Failure.
(g) "Exhibits" means the documents attached to this Agreement and
incorporated by this reference, as may be amended from time to
time by agreement of the Parties. Exhibits include, without
limitation, the following:
Exhibit "A"--Products and Price List
Exhibit "B"-- Technical Specifications
Exhibit "C"--Acceptance Test Plan
Exhibit "D"--Technical Support and Maintenance
Exhibit"E"--Project Level Agreements Exhibit
Exhibit "F"--Motorola Trademarks
Exhibit "G"--Territories
Exhibit "H"--List of Documentation
Exhibit "I"--Warranty/Repair Procedures
Exhibit "J-1"--Motorola Supplier Assessment
Exhibit "J-2" -Action Plan
Exhibit "K"--Source Code Escrow Agreement
Exhibit "L"- Key Account Sales
(h) "Hardware" means the Company hardware equipment Products set
forth on Exhibit "A", including Spares, and all Documentation
related thereto generally supplied by the Company to its
customers. The Parties may mutually agree in writing to amend
Exhibit "A" to expand or reduce the Hardware covered under
this Agreement.
(i) "Modification" means a revision, new function or minor change
to the Software intended to correct errors or non-conformance
with Specifications and provided as a change in the then
current release of the Software. Modifications may be issued
as a "point release" of the Software (that is, the version
number of which release, in comparison to the previous
release, has not changed in the digits before the decimal
point but has changed in the first digit after the decimal
point).
(j) "Object Code" means computer programs assembled or compiled in
magnetic or electronic binary form on software media, which
are readable and usable by machines, but not generally
readable by humans without reverse-assembly, reverse-compiling
or reverse-engineering.
(k) "Order" means a written purchase order to be provided by
Motorola to Company for Products as provided herein.
(l) "Products" means, collectively, the Hardware and Software that
is listed in Exhibit "A" (which may be amended from time to
time to include new product offerings) and conforms to the
Statement of Work and Specifications.
(m) "Services" means those consulting, engineering, installation,
optimization, maintenance, repair, technical support,
training, and other services referred to herein as being
performed by Company. These Services and pricing for such
Services shall be set forth in Exhibit A. The Parties may
mutually agree in writing to amend Exhibit "A" to expand or
reduce the Services covered under this Agreement.
-3-
(n) "Software" means the computer software (including firmware) of
any form, provided with the Products, which enables the
Products to perform their functions and procedures in
accordance with the Specifications, including all
Modifications and Upgrades, which are listed in Exhibit "A".
The Parties may mutually agree in writing to amend Exhibit "A"
to expand or reduce the Software covered under this Agreement.
Any reference to Software being "sold" or "purchased" is
understood in fact to be a reference to the Software being
licensed.
(o) "Source Code" means the original fully commented form on any
media of the Software in the language as used by Company, or
any translation or modification of such Software which
substantially preserves its original identity together with:
(i) all necessary proprietary information and technical
documentation which will enable a reasonably skilled software
engineer(s) to maintain or enhance the Software without the
aid of Company or any other person or reference to any other
materials; (ii) maintenance tools (test programs and program
specifications); (iii) proprietary or third party system
utilities (compiler and assembler descriptions); (iv) a
description of the Software's system/program generation; and
(v) descriptions and locations of hardware and software, if
any, not owned by Company but required for use and/or support
of the Software.
(p) "Spares" means field replaceable units (FRUs) such as
replacement parts, sub-assemblies, circuit cards, modules and
other electronic and mechanical assemblies necessary to
support routine operation and maintenance of the Products
which may be replaced at an End User site and which may be
purchased separately as set forth in Exhibit "A".
(q) "Specifications" means the technical performance and
functionality requirements for the Products as set forth in
Exhibit "B". From time to time, the Parties shall update
Exhibit B to include Specifications on the latest releases.
(r) "Trademarks" means trademarks, trade names, logos, service
marks, quality designations and any other proprietary words
and symbols that each party uses to identify its business
products and services.
(s) "Upgrades" means new modules, applications or modifications to
Software, or new releases, which provide substantial increase
in functionality, which are deemed to be commercially
marketable as a separate module or application and which
Company offers on a commercial basis to users of the Products
as an upgrade to those products. Upgrades may be included as
part of Maintenance. Upgrades may be made available to
Motorola and both existing and new End Users.
3. Product Requirements.
3.1 Specifications. The Products shall conform to the Specifications
and shall incorporate the features and be delivered within the
timeframes set forth in Exhibit "E".
3.2 Enhanced Features and Upgrades. Additional or enhanced Hardware
features and Upgrades that are developed by Company and offered on a
commercial basis by the Company to users of the Products shall be
incorporated into the Products and included as part of the Products.
Company shall also provide, subject to availability of personnel and
resources, Services as requested by Motorola to develop and support
additional or enhanced Hardware features and Upgrades specific to
Motorola, and the Parties agree to negotiate in good faith prices,
payment, timing and other terms and conditions for such Services.
4. Ordering Products.
-4-
4.1 Rolling Forecasts. As of the Agreement Date, Motorola shall submit
to Company a quarterly rolling order forecast of Products expected to
be ordered during the next twelve (12) months. Every three (3) months
thereafter, Motorola shall submit to the Company a new quarterly
rolling order forecast of the number of central terminals and the
number of subscriber terminals, by type and frequency plan (i.e. upper
or lower band of 3.5 GHz), for Products expected to be ordered during
the next twelve (12) months. All forecasts are for planning purposes
only and are non-binding.
4.2 Orders. Except as provided herein, any requests for the sale and
delivery of Products shall be made by Motorola pursuant to an Order.
Each Order shall be deemed to incorporate the terms of this Agreement,
whether or not this Agreement is specifically mentioned, and shall
clearly state the date of the Order, Order number, quantity,
specification and configuration, method of shipping, preferred carrier,
destination, prices and requested delivery date. Orders shall only be
placed by a designated Motorola entity, to be agreed by the Parties.
This Agreement supersedes any terms or conditions contained on
preprinted forms submitted as, or with, purchase orders, sales
acknowledgments or invoices.
4.3 Acceptance of Orders. Company shall make all reasonable effort to
provide its acknowledgment and acceptance of Orders in writing to
Motorola within three (3) business days of Company's receipt by email
or fax. Company may request revision and resubmittal of Orders that do
not contain required information. If Company is unable to comply with
Motorola's required delivery schedule, Company shall make all
reasonable effort to inform Motorola within such three (3) business
days and the Parties shall agree to a mutually suitable alternative
delivery schedule. If Company fails to provide its acknowledgment and
acceptance of the Order, within such three (3) business days, Company
shall be deemed to have rejected the Order. Company shall make all
reasonable effort to provide its acknowledgment and acceptance of
Emergency Orders in writing to Motorola within twenty-four (24) hours
of Company's receipt by email or fax and Motorola shall confirm
Emergency Orders by a telephone call to Company. If Company fails to
provide its acknowledgment and acceptance of the Order, within such
twenty-four (24) hour period, Company shall be deemed to have rejected
the Order.
4.4 Product Availability.
(a) Standard Lead Time. The lead time for delivery of forecasted
Products shall not exceed six (6) weeks after Company's
acceptance of an Order, provided that Motorola's orders are
not materially different from the volumes of Products to be
supplied under Motorola's forecast submitted to Company under
subsection 4.1. The lead time for delivery of non-forecasted
Products shall not exceed ten (10) weeks after Company's
acceptance of an Order.
(b) Emergency Support Lead Time. Upon a verbal, promptly followed
by a written notification or fax from Motorola that a Customer
requires an emergency order, Company shall make all
commercially reasonable efforts to ensure appropriate Products
are shipped to such Customer or Motorola, as agreed by the
Parties, within twenty-four (24) hours of such request.
Motorola shall provide Company with an Order number as soon as
reasonably possible after such request. Company shall, as soon
as reasonable, provide Motorola (or Customer, if requested by
Motorola) with a waybill number and carrier information.
Invoices for any emergency Orders shall be sent immediately to
Motorola and shall be payable in accordance with the terms
herein.
4.5 Order Rescheduling. Motorola may, at no charge, request
rescheduling of the delivery of an Order by notifying Company not less
than fourteen (14) calendar days prior to the scheduled delivery date
and Motorola will use best efforts to ensure that rescheduling happens
no more than one time per order. In the event that Motorola requests an
Order reschedule less than fourteen (14) days prior to shipment that
reflects a delay of an order exceeding ninety (90) days, such Order
shall be subject to Company's actual costs, but in no event exceed ten
percent (10%) of
-5-
the applicable order. Such rescheduling charges shall be invoiced to
Motorola upon shipment of the Product.
4.6
(a) Cancellation of Order. Motorola shall have the right to cancel
all or a portion of any Order placed with Company, at no
charge, if the Order is cancelled more than thirty (30) days
prior to the scheduled ship date. In the event of a
cancellation (except for Orders canceled in accordance with
Sections 7.2 Late Delivery, 7.3(c) Rejection, 22 Termination
or 29 Force Majeure), Company may invoice Motorola for a
cancellation charge as Company's sole and exclusive remedy for
cancellation of the Order.
If the order is cancelled thirty (30) days or less prior to
the scheduled ship date, the following cancellation charges
may be charged by the Company:
If the price for Products Then the cancellation charge
cancelled is in the following shall be in an amount equal to
amounts ... the actual charges incurred but
shall not exceed the following
percentage of the price of the
Products for the Order in
question:
Less than $1 million 5%
$1 million or more but less than 7%
$10 million
$10 million or more 10%
No Cancellation Charge shall be applied if the rescheduling of
the Order is attributable to any material non-performance of
Company in its obligations hereunder. In addition, in no event
shall Motorola be responsible for any charges related to any
manufacturing or ordering of services or materials by Company
done in advance of the factory lead time necessary to meet the
requested delivery date shown on such Order. Further, in the
event of a cancellation, Company shall take all reasonable
steps to reallocate Products to other Customers.
(b) Special Cancellation Charges. Notwithstanding the foregoing,
the following special cancellation charge schedule ("Special
Cancellation Charge Schedule") shall apply to Orders that
become subject to the Special Cancellation Charge Schedule
pursuant to the procedures set forth below:
If the price for Products Then the cancellation charge
cancelled is in the following shall be in an amount equal to
amounts ... the actual charges incurred but
shall not exceed the following
percentage of the price of the
Products for the Order in
question:
Less than $1 million 10%
-6-
$1 million or more but less than 15%
$10 million
$10 million or more 20%
In order for an Order to become subject to the Special
Cancellation Charge Schedule, it must, if accepted by the
Company and fulfilled in accordance with its terms, result in
a 300% increase in the Company's production rates over the
quarterly run rates. The run rate shall be calculated as the
average number of: ____ # of Central Terminals, _____ # of
Access Concentrators and ____# of Subscriber Units produced in
the previous quarter. If an Order meets the foregoing
requirement, then the Company may, in connection with its
acceptance and acknowledgement of the Order, indicate in
writing to Motorola that such Order shall be treated as being
subject to the Special Cancellation Charge Schedule; if
Company fails to indicate in connection with its acceptance
and acknowledgement of the Order, the Order shall not be
subject to the Special Cancellation Schedule. If the Company
in its Order indicates that such Order shall be treated as
being subject to the Special Cancellation Charge Schedule,
Motorola shall have seven (7) business days to indicate to
Company its acceptance of such treatment; if Motorola fails to
indicate acceptance of such treatment within such time period,
the Order shall be deemed accepted and subject to the Special
Cancellation Charge Schedule. If Motorola indicates its
rejection of such treatment with seven business days, the
order shall be deemed to be cancelled and of no further force
and effect.
4.7 No Minimum Purchase. This Agreement shall not be construed as a
purchase order for any Products. Motorola is under no obligation to
place orders for any minimum quantity of products. Notwithstanding the
foregoing, Motorola will use reasonable commercial efforts to promote
Company products and in the spirit of this Agreement, Motorola has
purchased two (2) demo/lab systems.
4.8 Factory Acceptance Testing. Company is responsible for the
development of the factory acceptance test plan ("FATP") for the
Products. The FATP must be submitted to Motorola for review and
approval or comments four (4) weeks prior to the planned start of
acceptance testing for Products to be delivered to Motorola under this
Agreement. Motorola must provide its comments concerning the FATP, if
any, within two (2) weeks and the FATP must be approved by both
Parties, which approval shall not be unreasonably withheld, prior to
the start of Product factory acceptance testing. The FATP will be a
subset of Company's standard product verification testing. Factory
acceptance testing will take place at Company's facilities. All
Products shall be subjected to factory acceptance testing. Prior to
factory acceptance testing, Company shall provide Motorola with a set
of pre-FATP engineering release notes.
4.9 Acceptance Criteria. The criteria that must be met by the Products
in order for the Products to be deemed factory accepted shall be set
forth in the FATP. Results of factory acceptance testing shall be
recorded in a Manufacturing Test Report.
5. Packaging and Shipping.
5.1 Packing Lists. Company shall include a complete packing list for
each Order stating Order number, Motorola's part number, Company's part
codes, serial number(s) and/or applicable Software version, quantity
and date shipped, and Company's invoice number. A copy of the
Manufacturing Test Report, which shall be a subset of the FATP, shall
also be packed with each Product. Configured Hardware should be
identified by one unique part number. Preloaded Software must be
identified by a separate part number which also identifies the Software
version. A receiving checklist which includes a detailed diagram of the
assembled Hardware shall also be packed in the shipment. For
international shipments, two (2) packing lists shall be provided for
each Order.
-7-
5.2 Markings. Company shall xxxx the outside of all packages with
necessary shipping information including Order number, part number,
quantity shipped, addresses of Company and Customer or Customer's
designee, and other requirements agreed upon between Motorola and
Company. Company shall follow Motorola's reasonable instructions
concerning the use of any Trademarks of Motorola, or any word or symbol
likely to be confused with any Motorola Trademark, either alone or in
any combination with another word or words. Further, when using the
trademarks of Motorola, Company may only use the Trademarks of Motorola
as directed by Motorola for labeling and shipping of the Product as set
forth in Exhibit F.
5.3 Packaging. All Products shall be packaged in such a manner to
prevent physical damage (including damage from electrostatic discharge)
to the Products during shipment and delivery assuming customary and
normal standards of handling. Freight and insurance associated with the
shipment of any replacement Products due to a failure of Company to
properly package the Products shall be the responsibility of Company.
Motorola and Company will agree to work together to determine the best
method of supplying Motorola's logo and labels to Company. Such
materials shall be supplied to the Company at no charge to the Company
and shall be supplied at times and in quantities sufficient for Company
to meet Motorola's Orders.
5.4 FCA, Risk of Loss, Title. The FCA (as defined in Incoterms, 1990
edition), point of shipment shall be at Company's origin in the UK.
Title to Product Hardware and risk of loss of the Products shall pass
to Motorola at origin/Company's plant upon Company's tender of delivery
by Company to Motorola's designated freight forwarder or carrier. Title
to the Software shall not pass to Motorola or its Customer at any time.
Motorola shall pay all freight and insurance costs from point of origin
on a pre-pay and add basis and all applicable customs duties and
similar charges.
5.5 Shipping. All items shall be shipped FCA, as specified above, in
the manner specified in the Orders. If Company ships Products by a
transportation method other than that specified on the Order, Company
shall be liable for the difference, if any, between the cost of freight
incurred and cost of freight which would have been incurred had Company
complied with the Order's shipping instructions. In the event any
shipment will not meet the delivery date (except as provided herein),
routing may be changed to premium transportation at Motorola's request.
In that event, Company shall bear the expense of any difference in
freight cost for the premium transportation unless the failure to meet
the delivery date is due to acts or omissions or delays of Motorola or
its customers or due to force majeure events. Company will, at
Motorola's request, drop ship product directly to Motorola's Customers
worldwide.
5.6 Motorola must inform Company of any loss in transit or damages(s)
to the Equipment and Software, and co-operate with Company in filing
any claims with the carrier for such loss in transit or damage(s).
5.7 In this Agreement, "Incoterms" means the most recent international
rules for the interpretation of trade terms published by the
International Chamber of Commerce as in force at the date when this
Agreement is made. Unless the context otherwise requires, any term or
expression which is defined in or given a particular meaning by the
provisions of Incoterms shall have the same meaning in this Agreement,
but if there is any conflict between the provisions of Incoterms and
this Agreement, the latter shall prevail.
6. Foreign Regulatory Approvals and Export Controls.
6.1 Regulatory Approvals. Motorola and Company will work jointly to
obtain foreign government regulatory approvals for the Products. In the
event that type approval or certification has not previously been
obtained by Company, and is required (as reasonably agreed upon by the
parties), Company and Motorola will work together to secure type
approval and certification as required. In such circumstances, Company
and Motorola shall equally split 50/50 all costs and charges associated
with such approvals. However, each Party is responsible for their own
-8-
internal costs associated with such type approvals or certification.
Company shall be free to use such approvals in its other business
activities.
6.2 Export Controls. Motorola shall obtain all export licenses and
other government authorizations necessary for the shipment of any
Products with such assistance from Company as Motorola may reasonably
request.
7. Delivery.
7.1 Delivery Date. The delivery date shall be the date that is set
forth in the Order. Delivery of Services shall be in accordance with
agreed to milestones stated in the applicable Order.
7.2 Late Delivery.
(a) As soon as Company becomes aware that any delivery is likely
to be late, Company will promptly notify Motorola and keep
Motorola informed about the circumstances causing the delay.
In the event Company fails to make delivery on time, Motorola
may give Company notice of such delinquency, allowing Company
a reasonable time to cure. In no event shall such cure period
exceed fifteen (15) days from the originally scheduled
delivery date, unless otherwise agreed upon by the parties. In
the event Company fails to deliver any portion of the ordered
Products during such period, Motorola, at its option, may
cancel the undelivered portion of such Order at no charge.
(b) Liquidated Damages. In the event Motorola incurs late fees
from its Customers attributable entirely to the fault of
Company, Motorola, at its discretion, may invoice Company for
such liquidated damages. Company shall have no liability for
late fees, liquidated damages, or the like if the delay is
attributable to a Force Majeure Event or any default by
Motorola. Company shall incur no late fees, liquidated damages
or the like unless such fees or damages are imposed on
Motorola by its customer. Under no circumstances, even if
orders submitted by Motorola and accepted by Company provide
for late fees or liquidated damages that are higher, shall the
aggregate amount of late fees or liquidated damages for an
order exceed a maximum of fifteen (15%) of the value of the
delayed items under the applicable Order. The schedule for
payment of late fees or liquidated damages shall not exceed
the following: 0.5% per day of the value of the delayed items
under the applicable Order for each day of delayed delivery
after the date falling fifteen (15) days after the scheduled
delivery date, to the extent such delay is not attributable to
a Force Majeure Event or default by Motorola. In the event
that the system may be put into commercial service without the
delayed items, then the liquidated damages will be limited to
a cap of 15 % of the value of the delayed items. However, if
the delayed items prevent the system to be put into commercial
service due to the delay, then the 15% cap applies to the
value of the total system. Payment of late fees, liquidated
damages or the like shall be the sole exclusive remedy against
Company in respect to late delivery.
7.3 Acceptance and Rejection.
(a) Delivery and Testing. When Company delivers Products to
Motorola or its Customers, Company shall provide a written
statement listing the items delivered and stating that they
are ready for Motorola's Acceptance Testing. Such statement of
readiness will be in Company's standard format and may be
accomplished via electronic transmission if stated in the
Order. Motorola and Company shall develop a joint Acceptance
Test Procedure ("ATP") and acceptance criteria, which shall be
based on the FATP, and incorporate such ATP herein as Exhibit
"C". Such Exhibit "C" shall be jointly approved by Motorola
and Company, which approval shall not be unreasonably
withheld, including how it will be applied to each such
Product delivery. At their sole option, Motorola, with the
assistance of Company for a maximum of three (3) Orders placed
by Motorola under
-9-
this Agreement, may examine, install and test the Products in
accordance with the ATP prior to shipment to Motorola's
Customers to determine whether the Products conform to the
applicable Product Order and Exhibit "B" Specifications.
Company shall assist Motorola in developing additional test
plans as may be required for new customers.
(b) Acceptance. After installation of a Product(s), Motorola's
deployment team may perform acceptance testing upon the
Product(s) to ensure that the Product(s) is properly installed
and substantially performing in accordance with the Product
Specifications. Acceptance testing shall include a detailed
demonstration of the Products by Motorola to the relevant
Customer. This demonstration will include an interactive
operation of the Products with the various components supplied
to the Customer, and will be deemed complete upon confirmation
by Motorola's deployment team that the Products are in proper
working order per the Product Specifications. Upon receipt of
such confirmation, Company shall, for a maximum of (3) Orders
placed by Motorola under this Agreement, assist Motorola
and/or the Customer in conducting acceptance tests using
simulated and/or actual data, at Motorola's discretion, for a
period not to exceed ten (10) days from the conclusion of the
Motorola Testing Period (the "Customer's Testing Period").
Within five (5) days after completion of Customer's Testing
Period, Motorola and Customer shall complete and execute a
Hardware Acceptance Checklist and a Software Acceptance
Checklist in the forms attached as Exhibit C (each a
"Checklist"), which shall state with specificity any aspects
of the Product(s)'s performance which do not substantially
conform to the Product Specifications. If the checklists
demonstrate that the Product(s) substantially conforms to the
Product Specifications, then such Product(s) shall be
considered accepted by Motorola and the Customer.
(c) Rejection. Motorola reserves the right to refuse delivery of
any Products which are not in material compliance with the
provisions of any Order or the material provisions of this
Agreement. Motorola, at its option may return, freight
collect, all Product received, which is not in material
compliance with the order or this Agreement, in its original
condition, to Company at Company's location in the UK or may,
at its option, retain such Product and make an appropriate
adjustment to the Purchase Order agreed upon by Company.
Incorrect or Dead on Arrival (DOA) Delivery. Company will use
all commercially reasonable efforts to deliver Product
replacement to Motorola or its designated freight forwarder,
or Customers ( as designated by Motorola) for materially
incorrect shipments or DOA (i.e. Products that materially fail
to perform "out-of-box" ) shipments within twenty-four (24)
hours of notice Motorola. If Company is unable to meet these
requirements, Company shall contact Motorola and the Parties
will mutually agree upon an alternative delivery schedule.
If Motorola properly rejects the installation of a Product(s)
pursuant to Section 7.3(b), then Company will work promptly,
diligently and continuously to correct the deficiencies such
that the Product(s) is performing substantially in accordance
with the Product Specifications as soon as reasonably
practicable thereafter. If the Product(s) is not so performing
within thirty (30) days following the rejection, Motorola may,
as its sole and exclusive remedy, cancel the Order, return at
Company's cost all of the Product, in its original condition,
( except for ordinary wear and tear and necessary adjustments
for installation and de-installation) to Company at Company's
location in the UK, and receive a full refund of all fees paid
to Company for the Product(s) and associated services.
(d) The provisions of this Section 7 shall also apply to
installations of Hardware or Software on a Product(s) after
the initial installation of such Product(s), except that: (i)
for a maximum of three (3) Orders placed by Motorola under
this Agreement, Company and Motorola and/or its relevant
Customer shall first test the newly-installed Hardware or
Software and subsequently test the Product(s) after
integration of the newly-installed items; (ii) Motorola may
reject such newly-installed Hardware in the manner described
in
-10-
Subsection (b); (iii) Company shall have sixty (60) days to
correct the deficiencies with such Hardware or Software; and
(iv) if Company fails to do so, Motorola may terminate its
obligations with respect to such additional Hardware or
Software within thirty (30) days following expiration of such
60-day period, in which case Company shall refund to Motorola
all fees paid for such newly installed Product following
return by Motorola of the Products to the Company, in their
original condition, ( except for ordinary wear and tear and
necessary adjustments for installation and de-installation) at
the Company's location in the U.K..
7.4 No Waiver. Neither Motorola's acceptance of partial shipments nor
provision for delivery of Products in installments shall relieve
Company of its obligations under this Agreement.
8. Prices and Payment.
8.1 Prices. The prices payable for the Products are as set out in
Exhibit "A". Prices stated shall be firm fixed for orders placed during
the initial term of this Agreement, and thereafter, for periods after
the initial two year term, may be adjusted annually by the Company by
notice given by Company to Motorola at least ninety (90) days prior to
the then applicable contract expiration date. After the initial term of
this Agreement, price changes shall not be made more often than once a
year, effective on the anniversary of the Agreement Date unless agreed
otherwise in writing by both Parties. Company shall provide Motorola
ninety (90) days prior written notice of any intent to change its
prices for Products from those set forth on Exhibit A. Nothing herein
shall prevent the Company from adding new products and prices
associated with those products to the price list and either during or
after the initial term of this Agreement, setting prices for Upgrades
and Products incorporating Upgrades.
8.2 Payment Terms. All payments for the Products shall be made in U.S.
dollars at the applicable prices detailed in Exhibit "A", and are due
net forty-five (45) days after the date on which Motorola receives a
correct invoice therefor. Company's invoices shall contain (i)
Motorola's "Invoice to" and "Ship to" addresses as specified by the
Order, (ii) Order number, (iii) applicable price(s) and discount, and
(iv) reference to this Agreement. Payment of invoices shall not
constitute acceptance of the Products and shall be subject to
adjustments for shipment shortages and other failures of Company to
meet the requirements of this Agreement.
8.3 Late Payment Fee. Payments not made when due shall thereafter bear,
at the option of the receiving party, interest at a rate equal to the
lower of (x) 12% per annum, or (v) highest rate permitted by applicable
law.
8.4 Taxes. The prices set forth in Exhibit "A" for the Products do not
include applicable sales, use, excise or similar taxes. To the extent
Company is required by law to collect such taxes, they shall be a
separate line item on invoices and paid in full by Motorola, unless
Motorola is exempt from such taxes and furnishes Company with an
appropriate certificate of exemption.
8.5 Most Favored Customer. Notwithstanding any other provision of this
Agreement, the prices, services and warranties granted by Company to
Motorola pursuant to this Agreement taken as a whole are hereby
warranted by Company to be comparable to or more favorable to Motorola
than the comparable prices, services and warranties offered by Company
to any of its other customers, purchasing the same Products in the same
or substantially the same quantities, under substantially similar
terms, during the term of this Agreement, including any renewal
thereof. Upon discovery that Company is or has provided more favored
prices, services and warranties, taken as a whole, to any other
customer in violation of the foregoing, Company shall immediately
provide notice to Motorola of such fact and this Agreement shall be
deemed to be automatically amended to include such more favored prices,
services and warranties, taken as a whole.
-11-
8.6 If Company breaches the warranty in 8.5 above, Motorola's sole and
exclusive remedy shall be for Company to provide the more favored price
or warranties to Motorola, effective immediately, from the date
Motorola or Company discovers the breach.
9. Product Changes.
9.1 Company shall provide Motorola ninety (90) days prior written
notice of any intent to change: (a) any material changes in quality
control for manufacturing processes for the Products; (b) any material
functionality or physical characteristics of the Products; or (c) part
number(s) before substituting Products with new numbers for Products
ordered under old numbers. This does not include Modifications that are
provided as part of normal maintenance Services.
9.2 No Discontinuance. Company may not discontinue the production or
availability of any Products at any time during the term of the
Agreement without giving Motorola seven (7) months prior written notice
(with details as to replacement products) or receiving the prior
written approval of Motorola, which will not be unreasonably withheld.
During such seven (7) month notice period, Motorola may purchase or
license additional quantities of the Products being discontinued. In
the event of a Products discontinuance under this Agreement, Company
shall provide substitute Products which under normal and proper use:
(i) shall not materially or adversely affect physical or functional
interchangeability or performance (except where there is written
agreement between the Parties that specific characteristics will be so
affected), (ii) shall not detract from the safety of the Products, and
(iii) shall be type-accepted by the appropriate authority, if required.
Company will use all commercially reasonable efforts, subject to
technology and vendor availability, to provide support for ten (10)
years after notice of product discontinuance.
9.3 Compatibility. Company shall use its commercially reasonable
efforts to ensure that all Products, including any future releases
thereof, shall be backwards compatible with, at a minimum, all
current/inservice Products, both software and hardware, and any
releases made available during the two (2) years prior to the date any
new release is first made available to Motorola; and upwardly
compatible with any future release of any Products which Motorola
purchases or licenses under this Agreement.
9.4 Change Order Process. Notwithstanding Section 9.3, any changes to
Products after acceptance thereof which affect the technical
functionality of the Products in any material respect must be submitted
in writing (in the form of a "Change Order Request") to Motorola
preferably within six (6) months but in no event less than four (4)
months prior to the intent to implement the change. Motorola will
review proposed changes within six (6) weeks of receipt of the Change
Order Request. Motorola will respond in writing with an approval or
alternative recommendation for the change. Proposed changes to Products
Specifications (Exhibit "B") as well as the introduction of future
Upgrades shall be subject to this change process. Such notice period
shall not apply in the event that the change is implemented to
introduce a bug-fix, repair or other modification to restore
functionality to that of the product specification described in Exhibit
B.
10. Product Documentation.
10.1 Documentation Deliverables. Upon execution of this agreement,
Company shall provide Motorola with two (2) complete master sets of
Documentation, of the type it generally provides to Customers of the
Products, at no additional charge. Documentation shall also be provided
to Motorola in a mutually agreed to electronic format. Company shall
notify Motorola of Company's Product release notices so that Motorola
may integrate such notices into the Documentation. Company shall
further provide any content/page updates or revisions, and series
numbers, if affected, on the date of their release for incorporation
into the master set. Prior to the first commercial installation of the
Products, Company and Motorola shall jointly develop a process for
-12-
the delivery and revision of future documentation releases. Once
integrated, Motorola shall provide Product Documentation to Company via
electronic format and Company shall ship such integrated Documentation
to Customers when drop shipping Products.
10.2 Rights to Documentation. Company grants to Motorola a
non-exclusive, worldwide, perpetual, royalty-free license to edit,
reproduce and merge into other Product materials and Documentation or
other written materials, including any revisions thereof, Documentation
provided under this Agreement. Motorola shall be responsible for the
final style edit and formatting, to ensure consistency with the overall
Motorola documentation style, graphics and format. Motorola may use any
Documentation internally, as well as sell or otherwise make available
such Documentation to Customers. Company grants Motorola the right to
remove any trademark, copyright or other notices which may appear in
the body of any such Documentation and to place Motorola's own
trademark, copyright and other notices on such Documentation. Company
grants to Motorola all licenses under any copyrights or trademarks or
other rights which may be necessary in order to provide the foregoing
rights. Company is granted no rights in any Product Documentation or
materials that contain edited, reproduced or merged Documentation.
Motorola shall use the Documentation so licensed to Motorola only for
purposes of providing sales , marketing, maintenance and support of
Products sold by Company hereunder and for purposes of providing such
Documentation to Motorola's Customers only for use in their maintenance
and support of Products sold by Company hereunder.
10.3 Language. Motorola and Company acknowledge and agree that the
Documentation shall be in the English language. Motorola has the option
to contract with Company to have the Documentation translated into one
or more foreign languages at reasonable rates and terms. If Motorola
translates the Documentation into a foreign language, Motorola shall
provide a copy of the translation to Company and Company shall be free
to use such translations, after removing Motorola trademarks and
tradenames, in its other business activities.
11. Training.
11.1 Training Courses. Company shall provide an initial training
courses up to a maximum of three (3) courses for Motorola's personnel
to integrate, install, operate and maintain the Products and utilize
any necessary test equipment for a maximum of twenty (20) employees or
contractors of Motorola. Such courses shall be for a total of forty
(40) hours ( 5 business days) per employee. One of these courses may
include a "Train the Trainer" course. All slides and scripts developed
by Company shall be made available in electronic format for use by
Motorola at no charge, provided that Motorola shall use the same only
for maintenance and training with respect to Products sold by Company
under this Agreement. Motorola personnel sent to such courses shall
have an appropriate technical background. Concurrent with the execution
of this Agreement, Company and Motorola shall mutually agree on the
date on which the initial training course shall commence. In any event,
the initial training course shall commence within thirty (30) days of
Motorola's reasonable request. Such course shall be made available at a
location defined by Company and at no cost to Motorola. Company shall
also provide training for three (3) new Motorola employees per year at
a location defined by Company and at no cost to Motorola. For the
avoidance of doubt, Motorola shall be responsible for all travel, per
diem and accommodation costs incurred by their personnel.
11.2 On-Site and Additional Training Courses. Company shall, at
Motorola's reasonable request, and at a mutually agreeable time,
conduct on-site training courses for Motorola's Customers, or other
additional training courses, at any reasonable location designated by
Motorola on a subcontract basis at the Company's prevailing rates in
effect at the time of scheduling. Current pricing for Company's
training classes are set forth in Exhibit A; such prices shall be firm
for the initial two year term of this Agreement. Motorola shall also
pay all actually incurred, reasonable and customary travel and per diem
expenses for conduct of such courses, provided Motorola has previously
approved of such expenses in writing.
-13-
11.3 Training Material. Company shall supply each trainee a complete
set of appropriate reproducible training aids, lesson plans, handouts
and associated materials pertaining to the Products for use by
Motorola's personnel. Company shall provide Motorola, upon Motorola's
reasonable request and at no charge, additional training material
handouts for use in any Motorola Customer training program. Company
grants to Motorola the right and license to reproduce all or any part
of the documents described in this Subsection and revisions thereof
solely for use in such training programs in connection with the
Products provided that the rights of Company in copyrighted material
that is Confidential Information are safeguarded by Motorola as set
forth in this Agreement (including those of Section 10.2).
12. Warranties.
12.1 Hardware.
(a) Hardware is warranted to be free from defects in material and
workmanship and to conform in all materials respects to the
Product Specifications for twenty-one (21) months from the
date of delivery of the applicable Hardware Products.
This Warranty applies to both domestically as well as
internationally deployed Product(s)s. Replacement or repaired
parts and depot labor at Company's facility (for repair of
parts) will be provided free of charge for the full warranty
period. Replacement or repaired parts may be drop shipped
directly to Motorola's customers or may be dropped shipped to
a Motorola's specified depot.. Motorola (or its Customer)
shall pay for costs of deinstalling defective parts and
installing replacement or repaired parts. Motorola shall
reimburse Company for costs incurred by Company in the event
of NFF (No Fault Found) in accordance with Company's prices as
set forth in Exhibit I Motorola shall prepay for shipping the
Product to Company and Company shall be responsible for the
costs of shipping the Product back to Motorola as specified by
Motorola . Motorola returns shall comply with Company's
standard MRR and other warranty procedures as set forth in
Exhibit I. Twelve month extended warranties for Hardware may
be purchased beyond the initial warranty period. Extended
warranty pricing shall be as set forth in Exhibit "A".
(b) In the event of a breach of Company's warranty in respect of
Hardware, Company shall repair or replace the part according
to the following procedures and those set forth in Exhibit I.
All costs incurred by Company during this process of repair,
repurchase or replacement of Company products, including but
not limited to, costs of repurchase or replacement shall be
borne by Company. In addition, during the warranty period,
Company will perform the following : (i) replace any defective
board with a Spare FRU within five (5) business days, for
emergencies, and ten (10) business days, for non-emergencies,
of receipt of the defective board or repair any defective
board within twenty five (25) working days of receipt.
Hardware not manufactured by Company will be repaired or
replaced within twenty-five (25) working days of receipt or
more promptly as arrangements with the manufacturers or
vendors thereof permit; (ii) provide Motorola with a list of
the Spare FRU model numbers from which the replacement of a
defective board shall be made; modifications to this list may
be made at any time with or without notice to Motorola or its
Customer; (iii) issue a Material Return and Replacement (MRR)
number to Motorola prior to Motorola's Customer's return of
the defective board; (iv) provide Motorola's Customers with
repair tags, return goods shipper forms, and shipping labels,
as reasonably required; (v) pay all transportation charges for
return of the board to Motorola's Customer; (vi) if Motorola
has provided Company with a blanket (call-off) purchase order,
provide emergency service by sending Spare FRUs within one (1)
business day after notification by Motorola to Company of such
emergency; (vii) upon Motorola's request, provide Motorola
with a copy of Company's then-current Policies and Procedures
for repair and replacement of defective equipment; (viii)
on-site repair within the USA can be performed at an
additional charge; such charge shall be quoted to Motorola's
Customer and approved before dispatch of personnel; and (ix)
Company may
-14-
elect to either repair or replace third party equipment with
the assistance of third party service providers. Motorola End
Users shall approve the quote for field support.
12.2 Spares.
(a) Company shall provide spares for all Hardware under contract
according to the following procedures and those set forth in
Exhibit I. All orders for Spare parts then in stock will be
shipped within five (5) business days of receipt of the order,
although Company will use its reasonable efforts to ship
emergency related Spare parts orders within one (1) business
day. If ordered spare item is not in stock at such time, the
order will be shipped when spare item is available. Company
warrants that upon delivery of the Spares to Motorola and for
a period of twenty-one (21) months thereafter, all Spares
purchased hereunder will be free from defects in material,
workmanship and design and will perform in all material
aspects in accordance with the Product Specifications for such
parts. Company further warrants that each Spare will be a fit,
form and function replacement of the part it is designed to
replace and that Spares for Products having a prescribed mean
time between failures ("MTBF") will meet or exceed such MTBF
specifications.
(b) In the event spares delivered hereunder do not meet the
requirements of Section 12.2(a), Motorola may have the same
remedies as set forth with respect to Hardware (Section
12.1(b)).
12.3 Software.
(a) Company further warrants that for a period of twenty-one (21)
months from the date of delivery, the Software licensed under
this Agreement will be free from defects that result in
malfunctions and will perform in all material respects the
functions described in the Specifications in Exhibit "B". If
Motorola finds a defect in the Software's performance during
this period, Company will, replace or modify the Software in
accordance with the terms of Section 12.3(b) and those
procedures set forth in Exhibit I. so that it performs in all
material respects in accordance with the Specifications in
Exhibit "B", all in accordance with the further provisions of
Section 12.3(b).
(b) Correction of Defects. At Company's sole cost and expense,
Company agrees to respond to and make all commercially
reasonable efforts to complete correction of any breach in
warranty, during the applicable warranty period, in the
Software in accordance with Exhibit "D" and the following
definitions and priority classification:
Severity 1 Causes data corruption
or Product(s) crash or
Motorola cannot make
effective use of the
Software
Severity 2 Feature does not work
as documented, no
reasonable work-around
exists and Motorola
has a critical need of
the feature
Severity 3 Feature does not work
as documented but a
reasonable work-around
exists or Motorola can
wait for the next
release for a fix
Severity 4 Enhancement request.
Company shall correct: (i) any Severity 1 problem within
forty-eight (48) hours from verification of such defect; (ii)
any Severity 2 problem within ten (10) business days from
verification of such defect; (iii) any Severity 3 problem
within forty-five (45) days from verification of such defect;
and (iv) any Severity 4 problem on a case-by-case basis.
(c) Updates. Software Modifications shall be provided at no
additional cost to Motorola during the term of this Agreement
and any extension thereof and shall be warranted to the same
extent as the original Software for a period of twenty-one
(21) months from the date of delivery. Software Upgrades shall
be supplied under the terms of this warranty
-15-
for the Software Warranty Period, including any extension
thereof, and during any period in which Motorola has paid or
has deemed to have paid Maintenance fees.
(d) Year 2000 Warranty. Supplier represents and warrants, in
addition to all other representations and warranties, that
until July 31, 2001, the Products supplied will be: (i) free
from any error(s) or defect(s) relating to date data
(including leap year calculations); (ii) will not generate any
invalid and/or incorrect date-related results; and (iii) such
date data will not impair the performance, output or accuracy
of Motorola's systems or products. In the event of a breach of
the foregoing warranty, Company shall repair or replace the
Software that does not comply with such warranty.
12.4 Epidemic Failures
(a) Under Warranty. In the event an Epidemic Failure occurs during
the applicable Warranty period, Company shall immediately take
remedial action at its sole expense, which may include
in-field inspection and onsite Services for replacement of all
Products and/or Software with a reasonable probability for
such a failure.
(b) Out of Warranty. If an Epidemic Failure occurs in any Products
and/or Software that has not continuously been under the
warranty as set forth herein, then within five (5) days of
notification from Motorola, Company shall prepare and propose
a corrective action plan for remedying such Epidemic Failures.
Upon approval of the corrective action plan by Motorola,
Company shall promptly implement the corrective action plan at
an agreed upon fee.
12.5 Services. All Services performed by Company under this
Agreement shall be performed in a good and workmanlike manner
in accordance with the applicable Telecommunications Industry
Standards. All Services and Maintenance obligations, as listed
in Exhibit "D", are warranted for twenty-one (21) months from
date of delivery.
12.6 Extent of Warranties.
(a) The warranties of Company, together with any applicable
service guarantees, shall run to Motorola. However, Company
agrees that Motorola can direct Customers who experience
warranty problems with Products to ship the relevant item, on
behalf of Motorola, directly to the Company and on direction
of Motorola, the Company shall drop ship to the location of
the relevant Customer items that have been repaired or
replaced pursuant to the Company warranty. Any NFF charges in
connection with any such direct shipments shall remain, as
between the Company and Motorola, the responsibility of
Motorola, however, Company shall be responsible for costs of
shipping NFF Products back to Motorola or its Customers.
(b) THE WARRANTIES IN THIS AGREEMENT ARE GIVEN IN LIEU OF ALL
OTHER WARRANTIES, EXPRESS OR IMPLIED, WHICH ARE SPECIFICALLY
EXCLUDED AS TO ANY MATTER WHATSOEVER, INCLUDING WITHOUT
LIMITATION, IMPLIED WARRANTIES OF MERCHANTIBILITY OR FITNESS
FOR A PARTICULAR PURPOSE.
12.7 General
The remedies set forth in this Section for breaches of
Company's warranties are Motorola's sole and exclusive remedy
for breach of such warranties. Company shall have no liability
for any breach of warranty to the extent attributable to the
failure of Motorola or its customer to handle, install, or
maintain the Products in accordance with the Documentation and
good industry practice or to install promptly the latest
Modification supplied by Company.
12.8 Warranty for Repaired Items
-16-
Any repair or replacement of an item of Hardware or Software
provided by Company as a result of its warranty obligation
hereunder shall be warranted to the same extent as the
original item supplied by the Company (and subject to the same
exclusions and other provisions of this Section 12) for a
period equal to the longer of the original warranty period for
the original item subject to repair or replacement or nine (9)
months from the date of delivery of the repaired or
replacement item.
13. Technical Support.
13.1 Technical Assistance. Company shall provide Technical Support and
assistance in accordance with Exhibit "D", including telephone support.
Support shall be 7 x 24. The support provided in this Section shall
extend to both new and old versions of Products for three (3) years
from acceptance of the Products by Motorola. A complete description of
the technical support to be provided by Company is set forth in such
Exhibit "D".
13.2 Problem Reports. Company shall track, summarize and maintain
up-to-date status on all problem reports related to the Products
regardless of whether they are generated by Motorola or Motorola's
Customers (so long as Motorola forwards such Customer data to the
Company). Company shall provide Motorola with reports on demand of
Motorola, but no more than quarterly. Motorola shall have access to the
aforementioned information at no charge. Company shall assign a
specific individual to interface with Motorola's personnel.
14. Quality.
Airspan would have to review all referenced and associated
documentation before agreeing to clause 14 and subclauses.
14.1 Quality System. Company shall maintain a quality system for the
purpose of achieving major quality improvements in the Products and
Services supplied to Motorola. As part of Company's quality system,
Company agrees to qualify with the criteria set forth in the Motorola
Supplier Assessment, as set forth at Exhibit J-1 including Company's
participation in bi-annual or annual Supplier Assessments. Company
agrees to be subject to Supplier Assessment reviews and or audits and
to work with Motorola to endeavor to improve Company's quality systems
based on the outcome of the supplier assessments. For the purpose of
example and not limitation, Services may include training,
documentation, response center, etc.
14.2 Audit. Company shall grant Motorola the right, upon reasonable
notice and at reasonable time, to audit Company's facilities and
documents that pertain to the Products only, for purposes of verifying
compliance with the quality terms set forth in this Agreement. Audits
shall be done no more than once per year.
14.3 Quality Data. Company shall provide Motorola access to quality
data for the purpose of measuring and evaluating Company's continuous
process improvement. Company shall also participate in periodic quality
reviews to discuss product roadmaps and to conduct operation reviews.
14.4 Improvement Action Planning. Company shall create a quality
improvement action plan, coordinated with Motorola (attached hereto as
Exhibit J) and meet with Motorola on a periodic basis to review
progress of action items and their quality impact. Company agrees to
use commercially reasonable efforts to comply with the agreed upon
milestones in the improvement action plan as set forth in Exhibit J-2.
In the event that Company fails to comply with the foregoing, Motorola
may treat such action as a material breach subject to the terms and
cure periods set forth in Section 22.1(a).
-17-
14.5 Participation. Company shall grant Motorola the right to
participate in reviews of milestones and implementation of revisions to
Products under this Agreement, all as reasonably agreed to. Motorola
agrees to promptly provide comments, as applicable.
14.6 Hardware Development. Company shall maintain a documented and
repeatable process for Hardware development and manufacturing for any
Hardware which Company develops and manufactures for Motorola.
14.7 Software Development. Company shall maintain a documented and
repeatable process for Software development for any Software which
Company develops for Motorola.
15. Company's Commitment to Customer Satisfaction.
15.1 Company acknowledges that commitment to total customer
satisfaction is essential to Motorola's continuing success in wireless
radio markets. A malfunction in the Products or Services may create
real or perceived customer satisfaction problems and a loss of goodwill
with customers. It is agreed that such problems may be outside the
scope of Company's warranty obligations set forth in this Agreement.
Company represents that it is committed to Motorola's stated
fundamental objective of Total Customer Satisfaction and will assist
Motorola in endeavoring to solve problems attributable to the Products,
when reasonably requested by Motorola. Under no circumstances however
is this Section, or Section 15.2, intended to give Motorola additional
remedies for breach of Company's warranty or to expand Company's
obligations with respect to Products out of warranty.
15.2 By way of example, and not limitation, at Motorola's reasonable
request, Company may be requested to periodically attend Customer
meetings and/or symposiums for the purpose of promoting and responding
to questions and concerns of Customers utilizing such Products, taking
action items at such meetings and working with Motorola to endeavor to
resolve customer satisfaction problems; be requested to attend on-site
meetings with individual customers who may be experiencing unique
difficulties with Products; etc. The parties shall mutually agree on
the allocation of any expenses to achieve the foregoing.
16. Intellectual Property Rights.
16.1 IPR of Company. All patents, trademarks, copyrights, mask works,
circuit layout rights, design rights, trade secrets and other
intellectual property rights in the Products and Company's Confidential
Information are and shall remain the exclusive property of Company or
its licensor.
16.2 IPR of Motorola. All patents, trademarks, copyrights, design
rights, trade secrets and other intellectual property rights in
Motorola's Confidential Information are and shall remain the exclusive
property of Motorola or its licensors.
16.3 Integration. Company shall not integrate or merge any Motorola
Confidential Information into any of the Products, unless otherwise
specifically directed by Motorola in writing.
16.4 Motorola shall not undertake any modifications to the Software
unless necessary to provide support to Customers in the event that
Motorola is provided Source Code pursuant to the escrow arrangement.
Motorola acknowledges that, except pursuant to the escrow arrangement
contemplated hereby, all Software provided hereunder will be provided
in Object Code only. Motorola shall not decompile, disassemble or
reverse such Software. .
17. Trademarks, Tradenames and Service Marks.
17.1 Right to Use Trademarks. In conjunction with the distribution and
sale of Products, Company grants Motorola the right to use all
trademarks, trade names, logos, service marks, quality designations and
any other proprietary words and symbols ("Trademarks") of Company
-18-
associated with the Products in proposal and promotional activities.
Motorola shall comply with all reasonable rules and regulations
furnished to Motorola by Company with respect to the use of each such
Trademark.
17.2 No Use of Motorola Marks. Company shall not use any Trademarks of
Motorola, or any word or symbol likely to be confused with any Motorola
Trademark, either alone or in any combination with another word or
words, except as authorized by Motorola under section 5.2 and Exhibit F
of this agreement.
18. License Grants.
18.1 Right to Use. Company grants Motorola a perpetual, worldwide,
except as set forth in Exhibit G, non-exclusive, non-transferable,
non-assignable royalty-free right to use the Software solely for
Motorola's internal use in conjunction with sales, maintenance and
customer support in conjunction with Products supplied by Company
hereunder and for the uses contemplated by Sections 18.2, 18.3 and
18.4. The license fee is included in the price of the Products.
18.2 Right to Sublicense. Company grants Motorola a perpetual,
worldwide, except as set forth in Exhibit G, non-exclusive,
non-transferable, non-assignable right to use, reproduce, market and
distribute, and to grant Customers perpetual, worldwide, except as set
forth in Exhibit G, non-exclusive, nontransferable, non-assignable
sublicenses to use, , and copy for backup and archival purposes, the
Object Code form of the Software, in all such cases solely for use in
the Products supplied by the Company hereunder, provided that such
sublicensees agree to be bound by terms and conditions which grant no
more rights concerning the Software than those contained herein, which
includes prohibitions against further sublicensing, disclosing,
disassembling or reverse engineering the Software.
18.3 Right to Copy. Upon execution of this Agreement, Company agrees to
promptly provide Motorola two (2) copies of the Object Code form of the
Software. In lieu of ordering Software from the Company, Company agrees
that Motorola may copy the Software, in object code form, solely for
the purpose of sublicensing the Software to Customers for use in
Products supplied by the Company hereunder. Motorola agrees to provide
Company, on a quarterly basis, a certificate verifying the number of
copies made and sublicensed.
18.4 Right to Use Source Code. Company grants Motorola a perpetual,
non-exclusive, non-transferable, non-assignable, royalty-free license
to use the Source Code of the Software, but solely in the circumstances
and in accordance with the terms of Section 19 herein.
19. Source Code Escrow.
19.1 Source Code Obligation. Motorola may, at its option, enter into a
Software Source Code escrow agreement with Company. Such escrow
agreement shall state that Company shall deposit, concurrently with the
execution of this Agreement and on each anniversary of the date of this
Agreement, with a third party reasonably acceptable to the Company
("Escrow Agent"), the most recent Source Code of the Software. Under
that agreement, in the event Company enters into any voluntary or
involuntary receivership arrangement or other insolvency procedures
(with appropriate cure periods for involuntary procedures, to be set
forth in the Escrow Agreement, attached hereto as Exhibit K), or ceases
to provide, in all material respects, substantially all of the support
services required by this Agreement in respect of Products sold by the
Company hereunder, such cessation continues after appropriate notices
and cure periods as set out in the Escrow Agreement, and there is no
successor to the Company undertaking such support, Motorola may direct
the Escrow Agent to deliver to Motorola the deposited Source Code
unless Motorola is then in material default under this Agreement
according to section 22.1(a) (for these purposes, this Agreement and
Orders placed thereunder shall be taken as a whole). It is understood
that ownership of the Source Code at all times remains with Company and
that any release to Motorola of such Source Code is made as an
accommodation to Motorola and shall
-19-
not vest any ownership or ownership rights in Motorola. In the event
that receivership or insolvency proceedings are dismissed and Company
continues as the primary obligor under this Agreement, Motorola, within
twenty (20) working days of receiving notice thereof, shall return the
Source Code and all copies to the Escrow Agent. During any period of
time in which the Source Code is in the possession of Motorola, it is
agreed that the Source Code shall be used only by Motorola and agents,
such as subcontractors, and may be used and modified solely for the
purposes of providing continuing support for Products sold by the
Company under this Agreement; for avoidance of doubt, the Source Code
shall not be used for development purposes nor duplicated, sold or
licensed to others or marketed in any manner. Motorola agrees to pay
all costs of entering into the Software Escrow Agreement and all annual
renewal costs. Except as specified in this Section, Motorola shall have
no access to the Source Code.
19.2 Specific Performance. Company expressly agrees to promptly comply
with the foregoing obligations and agrees that if Motorola, at its
option, enters into such a Software Escrow Agreement, then Motorola
shall be entitled to an order for specific performance of such
obligation in the event Company's representative, including any trustee
in bankruptcy, refuses to comply with the foregoing obligations. In the
event of bankruptcy, the Parties acknowledge that Motorola shall be
entitled to the full protection provided to licensees of intellectual
property rights specified in 11 U.S.C. ss. 365.
20. Confidentiality.
20.1 Exchange of Confidential Information. From time to time during the
performance of this Agreement, the Parties may deem it necessary to
provide each other with Confidential Information. The Parties agree:
(a) To maintain the confidentiality of such Confidential
Information and not disclose same to any third party, except
as authorized by the original disclosing Party in writing.
(b) To restrict disclosure of Confidential Information to
employees, contractors, and agents who have a "need to know".
Such Confidential Information shall be handled with the same
degree of care which the receiving Party applies to its own
confidential information but in no event less than reasonable
care.
(c) To take precautions necessary and appropriate to guard the
confidentiality of Confidential Information, including
informing its employees, contractors and agents who handle
such Confidential Information that it is confidential and not
to be disclosed to others.
(d) That Confidential Information is and shall at all times remain
the property of the disclosing Party. No use of any
Confidential Information is permitted except as otherwise
expressly provided herein and no grant under any proprietary
rights is hereby given or intended, including any license
implied or otherwise.
20.2 Responsibilities as to Employees. The receiving Party acknowledges
that Confidential Information may contain information that is
proprietary and valuable to the disclosing Party and that unauthorized
dissemination or use of the Confidential Information may cause
irreparable harm to the disclosing Party. Therefore, the receiving
Party shall take appropriate action, by instruction, agreement or
otherwise, with any employee or contractor permitted access to the
Confidential Information so as to enable it to hold the Confidential
Information in confidence or otherwise satisfy its obligations under
this Agreement.
20.3 Survival. Each Party's obligations under this Agreement to keep
confidential and restrict use of the other Party's Confidential
Information shall survive the expiration or termination of this
Agreement for a period of five (5) years.
20.4 Disclosure. Except as may be required by applicable law, neither
Party shall disclose to any third party the contents of this Agreement
or any amendments hereto without the prior written
-20-
consent of the other Party. The foregoing shall not prevent disclosure
to a Party's accountants and lawyers.
20.5 Independent Development. Company acknowledges that Motorola and/or
third parties are, or may be developing, Products similar in
functionality to those developed hereunder by Company. Company agrees
that the receipt of Confidential Information by Motorola from Company
shall in no way prohibit Motorola and/or third parties from developing
such applications, provided that the provisions of this Section 20
regarding the ownership, protection and security of Company's
Confidential Information have not been breached.
21. Limitation of Liability and Indemnification.
21.1 Limitation of Liability. UNLESS SPECIFICALLY SET FORTH HEREIN,
AND EXCEPT FOR UNCURED MATERIAL BREACHES OF CONFIDENTIALITY
OBLIGATIONS IN THIS AGREEMENT, in no event shall either
Motorola or Company (AND THEIR EMPLOYEES, DIRECTORS, AGENTS,
OFFICERS , whether as a result of breach of contract OR
WARRANTY, tort (including WITHOUT LIMITATION negligence),
FAILURE OF ESSENTIAL PURPOSE, or otherwise, have any liability
to each other for any indirect, special, incidental or
consequential damages, LOSS OF PROFITS, LOSS OF REVENUES OR
LOSS OF SALES IN CONNECTION WITH OR RELATED TO THIS AGREEMENT.
THE TERM CONSEQUENTIAL DAMAGES AS USED HEREIN SHALL NOT BE
CONSTRUED TO INCLUDE DAMAGES AS DEFINED IN THE UNITED STATES
CODE 35 U.S.C. 284. THE PARTIES UNDERSTAND AND AGREE THAT
DAMAGES UNDER 35 U.S.C. 284 ARE A FORM OF DIRECT DAMAGES.
21.2 General Indemnity. Subject to the limitations of Section 21.1
(unless otherwise required by applicable law), Motorola and Company
agree to indemnify and save each other harmless from any and all
claims, damages, expenses, suits, loss or liability for any death,
personal injury, or physical damage to tangible property to the extent
caused by, or arising from or connected with the performance of this
Agreement due to or occasioned by the other Party, its officers,
employees, agents or representatives.
21.3 Intellectual Property Indemnification.
(a) Company agrees, subject to the provisions of Section 21.1 (the
foregoing is not a limitation on Company's obligation to
indemnify Motorola for claims of the type covered by Section
21.1 which a third party seeks to recover from Motorola as a
result of actual or claimed infringement but are intended to
limit Motorola's recovery by indemnity for damages of the type
covered by Section 21.1 which are suffered by Motorola) to
indemnify and save harmless Motorola, its successors, assigns
and Customers from any and all expenses, liabilities, damages
or other losses, including court costs and attorney's fees,
arising from or by reason of any actual or claimed
infringement of any patents, trademarks (other than trademarks
of Motorola), copyrights, maskworks, trade secrets or other
intellectual property rights by the Products and/or
Documentation or any part thereof; and to defend at its
expense any action based thereon with respect to the use,
license or sale of the Products and /or Documentation by
Motorola or the Customers. Company shall be given prompt
notice of any claim which is the subject of this Section and
shall be given the right to control the defense of the claim.
(b) If the use of any portion of the Products developed under this
Agreement is enjoined as a result of such suit, then Company,
at no expense to Motorola and the Customers, shall either
procure the right for Motorola and Customers to continue using
the Products or replace or modify same so that they becomes
non-infringing and are of equivalent or superior
functionality. If neither of the foregoing alternatives are
available on terms which are acceptable to Motorola, Motorola
may return all or any part of the Products at
-21-
Motorola's sole option, for no less than a full refund of the
purchase price or license fees paid under this Agreement.
21.4 Cap on Liability.
Except for breach of the Confidentiality obligations,
restrictions in this Agreement on use of intellectual
property, obligations under Section 21.3, and as otherwise
prohibited by law, each party's total aggregate liability
arising from or related to this Agreement shall not exceed the
higher of (x) $8,000,000 (or (y) the amount invoiced by
Company to Motorola for Products and Services sold to Motorola
pursuant to this Agreement, regardless of whether such damages
are based on breach of contract or warranty, tort (including
without limitation negligence) failure of essential purpose or
otherwise.
21.5 Customer Agreement to Limitations.
Motorola shall use reasonable efforts to attempt to secure
from its Customers an agreement to a limitation on indirect,
special, incidental, and consequential damages of the type
contemplated by Section 21.1.
22. Termination.
22.1 Right to Terminate. Either Party may terminate this Agreement upon
notice to the other if:
(a) Material Breach. The other Party breaches a material
obligation under this Agreement and such breach continues
without cure for a period of thirty (30) days after notice or,
if the breach is not one which is capable of being cured
within thirty (30) days and the breaching Party has commenced
to cure the breach within such time and continues to do so
diligently and in good faith, then the breaching Party shall
be granted an extension for a reasonable period of time at the
discretion of the non-breaching Party.
(b) Change of Control. An entity that does not currently control
Company or Motorola, as the case may be, acquires either
direct or indirect control of the other Party (Company or
Motorola, as the case may be) and such Change of Control
materially and adversely affects the rights of the terminating
party. For these purposes, Change of Control shall mean the
possession of the power, directly or indirectly, to direct or
cause the direction of management or policies of the Party,
whether through the ownership of more than fifty percent (50%)
of the then outstanding shares or other equity rights of the
Party or by contract or agency or such similar arrangement. In
such event, if a Party terminates because of a Change in
Control of the other Party, the Parties shall cooperate to
conduct an orderly termination of the Agreement. Motorola
acknowledges that Company is expecting to conduct an initial
public offering in the near future. Motorola agrees that this
event alone will not give rise to a Change of Control event
that will permit Motorola to terminate this Agreement under
this Section 22(b)
(c) Insolvency or Cessation of Business. The other Party ceases to
conduct business in the normal course in a manner that
materially adversely affects the ability of the Party to meet
its obligations under this Agreement, becomes insolvent,
enters into a general suspension of payments, moratorium,
reorganization or bankruptcy, makes a general assignment for
the benefit of creditors, admits in writing its inability to
pay debts as they mature, suffers or permits the appointment
of a receiver for substantially all of its business or assets,
or avails itself of or becomes subject to any other judicial
or administrative proceeding that relates to insolvency or
protection of creditors' rights.
22.2 Rights and Obligations at Termination. Upon expiration or
termination of this Agreement for any reason:
-22-
(a) Cease and Destroy. Each Party will promptly cease using and
destroy and certify such destruction, or return to the other
Party, all items that contain any Confidential Information (as
defined herein) of the other Party, except Motorola may retain
one copy of Confidential Information for the sole and express
purpose of supporting then-existing Customers in connection
with their use of products supplied by Company hereunder.
(b) Sale of Inventory. Motorola may sell any of its then existing
inventory of Products originally purchased from Company.
However, Company shall have no warranty and support
obligations for such product under Sections 22.2(d) and (g) if
this Agreement is terminated because of Motorola's material
default pursuant to Section 22.1(a).
(c) Right to Use. Unless otherwise provided for herein, Motorola
and Customers shall continue to have the right to use Software
in Object Code form associated with the Products sold under
this Agreement, but subject to the limitations of this
Agreement.
(d) Spares. Upon termination of the initial term or any renewal of
this Agreement, or upon termination for any reason other than
Company's total cessation of business, Company agrees to use
all commercially-reasonable efforts, subject to vendor
availability, to offer for sale to Motorola, in accordance
with the provisions set forth herein, functionally equivalent
Spares for a period no less than ten (10) years after the
expiration or termination of this Agreement. In the event
Company is unable to supply such Spares or is unable, after
notice and a reasonable period of time, to obtain another
source of supply for Motorola, then Company shall provide
Motorola and its designated third party manufacturers of such
Spares with a royalty-free, non-exclusive license to use
intellectual property so that Motorola and such manufacturers
will have sufficient information and right to manufacture or
to obtain functionally equivalent Spares from other sources,
but solely for purposes of supplying Spares for Products sold
by Company under this Agreement. Company shall be obligated to
provide support services for Hardware, as set forth in Exhibit
D, attached hereto, for a period of ten (10) years after the
date of termination, and to provide support services for
Software, as set forth in Exhibit D, attached hereto, for a
period of two (2) years after the date of termination, unless
such termination is due to a material breach by Motorola,
pursuant to Section 22.1(a). In the event of a Company
bankruptcy, for purposes of this Agreement, the Parties
acknowledge that Motorola shall be entitled to the full
protection provided to licensees of intellectual property
rights specified in 11 U.S.C. 365.
(e) Outstanding Sums. Company shall invoice Motorola for any
outstanding sums which may be owing from any Order as detailed
in Exhibit "A. In the event that Motorola terminates for
material breach as set forth herein, Motorola reserves the
right to offset any damages it incurs against any sums that
Motorola owes to Company.
(f) Source Code. In the event of a termination due to the
conditions set forth in Subsection 22.1(c) above, Company
shall provide to Motorola Source Code in accordance with the
terms of any escrow agreement entered into pursuant to Section
19.
(g) Continuation of Services. Upon termination at the end of the
initial term or any renewal thereof, unless termination is due
to a material breach by Motorola, pursuant to Section 22.1(a)
Company will provide warranty remedy, support services, of the
type required hereby, until the end of the last applicable
warranty period or term of support or maintenance agreement.
23. Term and Renewal.
This Agreement shall commence as of the Agreement Date and shall be for
an initial term of two (2) years, and may be renewed by the Parties for
successive terms of one-year each, provided that each Party executes a
written consent as to each one year renewal period sixty (60) days in
advance of the expiration date of the previous term.
-23-
24. Product Liability and Compliance with Laws.
24.1 Product Liability. Company represents and warrants that the
Products shall be produced and delivered in accordance in all material
respects with all applicable laws, rules and regulations governing
product safety of those jurisdictions from which Company or Motorola
(with the active cooperation of Company) has obtained or is in the
process of actively obtaining type certification for the Products.
24.2 Defense of Claim. Company agrees, upon receipt of notification, to
promptly assume full responsibility subject to the limitations of
Section 21.1, for the defense of any suit or proceeding which may be
brought against Motorola, its directors, officers, agents or Customers
for personal injury, death, or physical damage to tangible property
based upon a claim that the Products, or any aspect of the Products,
breached the representation of Section 24.1, have caused death or
personal injury, are defective in any way, or were negligently designed
or manufactured or fail to comply with any product safety laws. Company
further, subject to the limitations of Section 21.1, agrees to
indemnify and hold harmless Motorola, its directors, officers, agents
and Customers against any and all expenses, losses and damages,
including court costs and attorney's fees, resulting from any such suit
or proceeding, including any settlement. Motorola may be represented by
and actively participate through its own counsel in any such suit or
proceeding if it so desires, and the cost of such representation shall
be paid by Motorola.
25. Security.
Each Party agrees that, when employees or agents of the visiting Party
are on the premises of the host Party, they will at all times comply
with all security regulations in effect and of which the Party has been
apprised. The visiting Party further agrees to abide at all times with
off premises security regulation when the visiting Party has
Confidential Information of the host Party. Motorola and Company
specifically agree not to disclose to any third party any information,
systems, equipment, ideas, processes or methods of operation observed
at either Party's facilities, all of which shall be deemed Confidential
Information as defined herein.
26. Insurance.
While performing this Agreement, Company shall maintain insurance in
such amounts and in such forms and with such insurers as Motorola may
reasonably request.
27. Notices.
27.1 Form of Notices. All notices and other communications required or
contemplated under this Agreement shall be in writing and shall be
transmitted to the address shown below either by (i) personal delivery,
(ii) expedited messenger service, (iii) airmail postage prepaid return
receipt requested certified mail, or (iv) electronic telefacsimile with
confirmed answerback.
Motorola shall send notices as follows: Airspan Communications Ltd.
Xxxxxxxxx Xxxxx
Xxxxxx Xx
XXXXXXXX, XX0 0XX, XX
Attention: Director of Marketing
Telefax: x00 0000 000000
Company shall send notices as follows: Motorola, Inc.
Network Solutions Sector
0000 Xxxx Xxxxx Xxxxx
Xxxxxxxxx Xxxxxxx, Xxxxxxxx 00000
-24-
Attention:
Xxxx Xxxxx, Wireless Access Systems Division
General Manager
Cc: Xxxxx Xxxxxx, Wireless Access Systems Division
Senior Marketing Manager
Telefax: 000-000-0000
Motorola
Network Solutions Sector
Global Alliance Development Department
0000 X. Xxxxx Xxxxx
Xxxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attn: Legal
Facsimile: 000-000-0000
27.2 When Effective. Notices shall be effective upon the date of
receipt of delivery or at such time as delivery is refused by addressee
upon presentation.
28. Force Majeure.
28.1 Definition. Neither Party shall be liable for delays in delivery
or performance when caused by any of the following which include but
are not limited to, acts or events which are beyond the actual control
of the delayed Party, including but not limited to the following: (i)
acts of God, (ii) acts of the public enemy, (iii) acts or failure to
act by the other Party, (iv) acts of civil or military authority, (v)
governmental priorities, strikes or other labor disturbances, (vi)
hurricanes, (vii) earthquakes, (viii) fires, (ix) floods, (x)
epidemics, (xi) embargoes, (xii) war, (xiii) riots, and (xv) failures
of common carriers.
28.2 Extension. In the event of any such delay the date of delivery or
of performance shall be extended for a period equal to the effect of
time lost by reason of the delay.
28.3 Right to Terminate. Notwithstanding the foregoing, in the event
that such Force Majeure causes Company to be delayed in its delivery or
performance for more than seventy-five (75) days, Motorola shall have
the right to terminate this Agreement with no liability whatsoever.
28.4 Notice. A party claiming delay in delivery or performance, due to
an act of force majeure as set forth herein, shall send written notice
thereof and a statement of particulars to the other party, prior to or
at the time performance would have been required by the non-performing
party.
29. Governing Law and Dispute Resolution.
29.1 Governing Law. The validity, performance, and all matters relating
to the effect of this Agreement and any amendment hereto shall be
governed by the laws of the State of Illinois, U.S.A., which shall be
applied without regard to the U.N. Convention on International
Contracts for the Sale of Goods.
29.2 Escalation. Motorola and Company agree to attempt to settle any
claim or controversy arising out of this Agreement through consultation
and negotiation in good faith and spirit of mutual cooperation. Any
dispute between the Parties relating to this Agreement will first be
submitted in writing to a panel of two senior executives of Company and
Motorola, who will promptly meet and confer in an effort to resolve
such dispute. Each Party's executive will be identified by notice to
the other Party, and may be changed at any time thereafter by notice to
the other. Any agreed decisions of the executives will be final and
binding on the Parties. In the event the executives are unable to
resolve any dispute within thirty days after submission to
-25-
them, either Party may then refer such dispute to mediation in
accordance with Subsection 29.3. Notwithstanding the foregoing, any
disputes with respect to intellectual property rights shall be
submitted to the courts and not be subject to the provisions of this
Section 29.2 or Subsection 29.3.
29.3 Alternate Dispute Resolution ("ADR"). If those attempts fail, then
the dispute will be mediated by a mutually acceptable mediator to be
chosen by Motorola and Company within forty-five (45) days after
written notice by either Party demanding mediation. Such mediation
shall be conducted in a location to be agreed upon by the parties.
Neither Party may unreasonably withhold consent to the selection of a
mediator or location, and Motorola and Company will share the costs of
the mediator equally. Each Party shall pay its own attorneys' fees. By
mutual agreement, however, Motorola and Company may postpone mediation
until each has completed some specified but limited discovery regarding
the dispute. The Parties may also agree to replace mediation with some
other form of alternate dispute resolution, such as neutral
fact-finding or a mini-trial.
29.4 Submittal to Courts. Any dispute which cannot be resolved between
the Parties through negotiation, mediation or other form of ADR within
four (4) months of the date of the initial demand for ADR by one of the
Parties shall then be submitted to a court of competent jurisdiction.
The use of any ADR procedures will not be construed under the doctrines
of laches, waiver or estoppel to affect adversely the rights of either
Party. Nothing in this Section will prevent either Party from resorting
to judicial proceedings if (a) good faith efforts to resolve the
dispute under these procedures have been unsuccessful, or (b) interim
relief from a court is necessary to prevent serious and irreparable
injury to that Party or to others.
30. Subcontracting.
Company shall not, without the prior written consent of Motorola,
subcontract any portion of the work covered by this Agreement except
for the purchase of standard commercial supplies or raw materials
incidental to the work to be performed.
31. Assignment.
Neither this Agreement nor any right under this Agreement may be
transferred, assigned or delegated by either Party without the prior
written consent of the other Party. Any attempted assignment,
delegation or transfer shall be void.
32. Independent Contractors.
Company shall perform activities under this Agreement only as an
independent contractor and nothing contained herein shall be construed
to be inconsistent with this relationship or status. Under no
circumstances shall any personnel of Company be considered to be an
employee or agent of Motorola. Nothing in this Agreement shall be
interpreted as granting either Party the right or authority to make
commitments of any kind for the other, implied or otherwise, without
prior review and written agreement. This Agreement shall not
constitute, create, or in any way be interpreted as a joint venture,
partnership or formal business organization of any kind.
33. Authority.
Each Party hereto represents and warrants that (i) it has obtained all
necessary approvals, consents and authorizations of third parties and
governmental authorities, if applicable, to enter into this Agreement
and to perform and carry out its obligations under this Agreement, (ii)
the persons executing this Agreement on its behalf have express
authority to do so, and, in so doing, to bind the Party thereto; (iii)
the execution, delivery, and performance of this Agreement does not
violate any provision of any bylaw, charter, regulation, or any other
governing authority of the Party; and (iv) the execution, delivery and
performance of this Agreement has been duly
-26-
authorized by all necessary partnership or corporate action and this
Agreement is a valid and binding obligation of such Party, enforceable
in accordance with its terms.
34. No Right to Audit.
Nothing contained herein shall be deemed to grant Company or any third
party, by implication, estoppel or otherwise, any right to inspect or
examine any of Motorola's data, documents, instruments, records,
software, systems, premises or plants related to or in any way
connected with the Products. Motorola shall have no duty to disclose
any financial statements, balance sheets, or any other business records
to Company, Company's representatives or any third party which may
request same. By way of example, and not limitation, Motorola has no
duty to disclose the existence or location of any Customer who has
purchased Products.
35. Cumulative Remedies.
Except as otherwise provided herein, if Company breaches this
Agreement, Motorola shall have the right to assert all legal and
equitable remedies available.
36. Severability and Survivability.
In the event any one or more of the provisions of this Agreement is
held to be unenforceable under applicable law, (i) such
unenforceability shall not affect any other provision of this
Agreement; (ii) this Agreement shall be construed as if said
unenforceable provision had not been contained herein; and (iii) the
Parties shall negotiate in good faith to replace the unenforceable
provision by such as has the effect nearest to that of the provision
being replaced.
The Parties agree that where the context of any provision indicates an
intent that it shall survive the term of this Agreement then it shall
survive. For the avoidance of doubt, the following sections shall
survive: 12 - Warranty; 19 - Source Code Escrow; 20 - Confidential
Information; 21- Limitation of Liability and Indemnification; 22.2
Rights and Obligations at Termination; 29- Governing Law and Dispute
Resolution.
37. Publicity.
Neither party shall issue a press release or make any similar public
announcement regarding the transactions contemplated by this Agreement
without the other party's prior written consent to the specific
language and intended distribution of such press release or
announcement.
38. Entire Agreement.
This Agreement and Exhibits hereto constitute the entire understanding
between the Parties concerning the subject matter hereof and supersede
all prior discussions, agreements and representations, whether oral or
written and whether or not executed by Motorola and Company. In case of
inconsistencies between the terms of this Agreement and the Exhibits,
this Agreement shall govern and supercede the Exhibits. Orders issued
pursuant to this Agreement shall be deemed to be governed by the terms
of this Agreement, and in case of inconsistencies between the terms of
this Agreement and such Orders, this Agreement shall supercede, whether
or not this Agreement is specifically incorporated by reference into
such Orders. For the avoidance of doubt, this Agreement supersedes the
Non-Disclosure Agreement dated April 23rd, 1999 entered into between
the parties hereto. This Agreement or any part or provision hereof
shall not be deemed waived, amended, or modified by either Party unless
such waiver, amendment or modification is in writing and executed by
authorized representatives of both Parties.
-27-
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of
<__________________>, 2000 ("Agreement Date").
Motorola Inc. AIRSPAN COMMUNICATIONS LTD.
NETWORK SOLUTIONS SECTOR
By: By:
--------------------------------------------- ------------------------------------------
(Signature) (Signature)
Name: Name:
--------------------------------------------- ------------------------------------------
(Print - Block Letters) (Print - Block Letters)
Title: Title:
-------------------------------------------- -----------------------------------------
(Print - Block Letters) (Print - Block Letters)
-28-
