Exhibit 10.1
Note: Portions of this exhibit indicated by "[*]" are subject to a confidential
treatment request, and have been omitted from this exhibit. Complete, unredacted
copies of this exhibit have been filed with the Securities and Exchange
Commission as part of this Company's confidential treatment request.
SUPPLY AGREEMENT
This Supply Agreement (the "Agreement") is made effective as of the 14th
day of September, 2001, (the "Effective Date"), by and between Airspan
Communications Ltd., a company organised under the laws of England and Wales,
with its principal place of business at Xxxxxxxxx Xxxxx, Xxxxxx Xxxx, Xxxxxxxx,
Xxxxxxxxx, XX0 0XX, Xxxxxxx ("ACL"), and Monarch Communications Limited a
company organised under the laws of Nigeria with its principal office at Xxxxxxx
Xxxxx, Xx 000, Xxxxxxx Xxxx, Xxxxx, Xxxxx, Xxxxxxx ("Purchaser").
WITNESSETH:
WHEREAS, ACL is engaged in the design and manufacture of various
telecommunications product lines including, among others, those ACL products
more completely described in Exhibit A hereto (the ACL products described in
Exhibit A of this Agreement, as from time to time amended in accordance with the
provisions of this Agreement, are hereinafter called the "ACL Products"); and
WHEREAS, Purchaser is engaged in the operation of telecommunications systems;
and
WHEREAS, during the Term (as defined below) of this Agreement, ACL desires to
supply to Purchaser, and Purchaser wishes to acquire from ACL, the ACL Products
on the terms and conditions contained in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises herein contained, it is
hereby agreed as follows:
1. SCOPE.
1.1.This Agreement shall remain in effect for a period of 3 years from the
Effective Date (the "Term").
1.2. During the Term, in accordance with each purchase order issued by
Purchaser and accepted by ACL, ACL shall:
SUPPLY AGREEMENT - PAGE 1
(STDUKSA-revised May 2000)
a. Engineer, sell, and deliver that equipment so specified in the
order ("Equipment" being defined as the hardware component of each
product being offered under the terms and conditions of this
Agreement);
x. Xxxxx to Purchaser a non-transferable, non-exclusive, paid-up
licence to use the Software (as defined in Section 10.1) during the
useful life of the associated Equipment on the terms and conditions
set forth in the Software Licence, Section 10; and
c. Test, install and commission the Equipment and/or Software and
integrate the Equipment and/or Software in accordance with ACL's
specification therefor with third party equipment agreed upon by
both parties (the "Installation Services") if such services are
included in the price of the Equipment or Software or if such
services are ordered separately.
d. Train Monarch staff to enable them engineer, operate and maintain
the system. In this regard, training shall be provided by ACL for
all facets of the Hardware and Software components of the ACL
Products as follows:
i. Pre-Installation: against Purchaser's first order only ACL
will provide a single training course in Uxbridge for up to
seven (7) of Purchaser's engineers without additional charge
to Purchaser;
ii. Installation: on-the-job training will be provided to a
limited number of Purchaser's engineers during the provision
of Installation Services by ACL ;
iii. Post Installation [Operation and Maintenance]: training will
be provided by ACL at the times and location(s) agreed upon by
the parties at the rates set forth in Exhibit B, the Price
List.
1.3. ACL will also cooperate with Purchaser to develop Purchaser's post
project operations management strategy , which will incorporate
xxxxxxx levels and skills requirements. The parties will develop a
draft proposal by 30 September 2001 for review by Purchaser.
1.4 ACL will make spare parts available for purchase by Purchaser for a
period of ten years from the date of Shipment of the corresponding
Equipment.
SUPPLY AGREEMENT - PAGE 2
(STDUKSA-revised May 2000)
2. ORDERING PROCEDURE.
2.1 The following procedures shall be followed with respect to each
purchase order issued by Purchaser:
a. During the Term, Purchaser will inform ACL of its intent to purchase
Equipment and Installation Services, and license Software, by sending to
ACL a written order. This written order (the "Purchase Order") will state
the type of Equipment, System, or Installation Services that Purchaser
wants to purchase and the Software Purchaser wants to licence as well as
the price of the ordered items (the "Contract Price").
b. Each Purchase Order shall specifically incorporate by reference the
terms and conditions of this Agreement, and no additional or different
terms and conditions stated in a Purchase Order, any letter, or otherwise
shall be binding unless expressly referred and agreed to by both parties
in writing. In the event of a conflict between the terms and conditions of
this Agreement and of any Purchase Order issued hereunder, or if the
Purchase Order does not reference the terms and conditions of this
Agreement, the terms and conditions of this Agreement shall prevail.
2.2 TYPE APPROVAL
ACL shall provide to the Purchaser a copy of the Nigerian Communications
Commission Type Approval Certificate, which allows the products on order
to be used in Nigeria.
3. EQUIPMENT FOR MONARCH NIGERIA PROJECT
3.1. ACL has agreed to provide and Monarch has agreed to provide
equipment, software and services set forth in the Schedule of Equipment
for the initial order for the Monarch Nigeria Project attached to this
Agreement as Exhibit B. and incorporated herein as part of the agreement
at the price detailed and on the terms and conditions specified in Exhibit
B. The parties agree that the terms and conditions specified in Exhibit B.
shall govern the supply and purchase of the equipment, software and
services listed therein for the initial order.
3.2. CONTRACT PRICE.
3.2.1. The Contract Price for each item of Equipment, Installation
Services, or Software is as specified in Exhibit B and shall be paid to
ACL in US Dollars (USD or US$).
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(STDUKSA-revised May 2000)
3.2.2. The Contract Price for Equipment and Software includes:
a. The price of the Equipment;
b. The fee for the licensing of the Software;
c. The charges for the warranty of the Equipment and Software in
accordance with Section 7;
d. Transportation and insurance charges in accordance with ACL's
Contract Price set forth in Section 3.2.4 and ACL's delivery
obligations set forth in Section 5.1;
e. Charges for training Monarch staff in accordance with
Paragraph 1.2(d).i and 1.2(d).ii; and
3.2.3. The Contract Price for Installation Services includes:
a. The price for installation and commissioning the Equipment and
Software including the integration of the Equipment and/or
Software in accordance with ACL's specification therefor with
third party equipment as agreed upon by both parties. ACL
shall provide all necessary tools and test equipment required
for the installation, testing and commissioning of the
Equipment and Software. Commissioning includes successful
completion of the Commissioning tests agreed upon by the
parties and set forth in Exhibit C.
b. ACL's Contract Price for Installation and Commissioning is
quoted separately for: (i) infrastructure (i.e. ACs and CTs);
and (ii) Subscriber Terminal (STs).
3.2.4. All prices quoted in Exhibit B are CIP, Lagos Port Nigeria .
4. PAYMENT TERMS.
4.1 If a Purchase Order is accepted by ACL, ACL will issue an invoice (the
"Invoice") to Purchaser within fifteen (15) business days of ACL's receipt
of the written Purchase Order from Purchaser. The Invoice specifically
shall identify the Equipment, Software, or Systems so ordered, and the
Contract Price of such items. Installation Services shall separately be
invoiced within fifteen (15) business days of ACL's receipt of a written
Purchase Order for same. The Invoice also shall state the total amount due
to ACL from Purchaser (.
4.2 The Purchaser shall open a confirmed irrevocable documentary Letter of
Credit in favour of ACL with a bank acceptable to ACL in
SUPPLY AGREEMENT - PAGE 4
(STDUKSA-revised May 2000)
respect of payments for Equipment and Software listed in Appendix A and
such installation services to be provided by ACL under this agreement. The
Letter of Credit shall be in an amount equal to the value of the total
Contract Price (equipment and installation) and shall have a validity
period of 180 Days.
4.2.1. Draw down on the Letter of Credit shall be as follows:
a. Ten [10] percent of the total value of the contract price as down
payment for which ACL shall issue a Bank Bond in favour of the
Purchaser.
b. Fifty [50] percent of the value of the Equipment and Software
ordered shall be paid to ACL fifty (50) days after the date of
Delivery on the presentation of the following documents
i. ACL attested Invoice;
ii. Final Invoice;
iii. Airwaybill of lading
iv. Packing List.
v. Clean report of finding.
c. The balance of forty [40] percent of the value of the Equipment and
Software in the Purchase Order shall be paid one hundred and fifty
(150) days after the date of Delivery.
4.2.2. The balance of the 90% of installation charges shall be paid as
follows:
o 50% on the start of installation; and
o 40% on completion of installation.
SUPPLY AGREEMENT - PAGE 5
(STDUKSA-revised May 2000)
4.3 In the case of payment by wire (or telegraphic) transfer, the funds
due must be received in ACL's designated bank. The transfer instructions
are:
Bank: Lloyds Bank
00 Xxxxxxxxxx Xxx
Xxxxxx
Xxxxxx
XX00 0XX
Xxxxxxx
Sort Code: 30-99-80
Account Name: ACL Communications Limited
Account No: 00000000
Further Instructions: Reference (Purchaser's name)
P.O. No. _______,
Payment of Invoice No. _________.
5. DELIVERY, TITLE, AND RISK OF LOSS.
5.1. ACL shall make arrangements for the delivery of all Equipment and
Software ordered by Purchaser as detailed in Exhibit B, CIP Lagos
Port Nigeria as per Incoterms 2000 ("Delivery"); upon which
Purchaser will make arrangements for their collection from the Port.
ACL agrees to use a reputable freight forwarder which it shall
identify to the Purchaser prior to shipment; and the parties shall
agree upon the mode of shipment and the carrier.
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 the Incoterms shall have the same meaning in this
Agreement, but if there is any conflict
SUPPLY AGREEMENT - PAGE 6
(STDUKSA-revised May 2000)
between the provisions of the Incoterms and this Agreement, the
latter shall prevail.
5.2. All risk of loss or damage to the Equipment and Software will pass
to Purchaser upon Delivery.
5.3. Title to the Equipment shall pass to Purchaser on Delivery.
5.4. The Software shall at all times remain the exclusive property of
ACL.
5.5. ACL shall not make partial deliveries of Purchaser's orders unless
the Purchaser has been advised and has agreed in writing to accept
such partial delivery in respect of any particular order, such
agreement not to be unreasonable withheld or delayed
5.6. ACL will use reasonable efforts to meet Purchaser's requested
delivery schedules for Equipment and Software, but ACL reserves the
right to refuse, cancel, or delay delivery to Purchaser when
Purchaser's credit is impaired, when Purchaser is delinquent in
payments or fails to meet other credit or financial requirements
reasonably established by ACL, and agreed by the parties in writing.
Should orders for Equipment and Software exceed ACL's available
inventory, ACL will disclose its available inventory and make
deliveries on a basis discussed and agreed with the Purchaser. ACL
shall not be liable for any indirect, consequential, or special
losses or damages (including, but not limited to, loss of income or
profit and loss of data) that may be suffered by the Purchaser or by
any other person for failure to deliver or for any delay or error in
delivery of Equipment or Software for any reason whatsoever.
5.7. In the event that the actual date of Shipment is later than the
agreed upon date of Shipment for an accepted Purchase Order or part
thereof, Purchaser may levy a penalty of two percent (2%) per week
of the Contract Price of the Equipment and/or Software directly
affected by the delay up to a maximum amount of twelve percent (12%)
of the Contract Price of such affected Equipment or Software. Such
penalty must be invoiced by the Purchaser within thirty (30) days of
the actual date of Shipment and ACL will pay such invoices within
thirty days of receipt or will set-off such amounts against amounts
due and payable to ACL. A two-week grace period will apply before
Purchaser may levy a penalty but if the delayed Equipment or
Software is not delivered during the grace period, the penalty may
be levied from the first day of delay. .
SUPPLY AGREEMENT - PAGE 7
(STDUKSA-revised May 2000)
5.8. If Purchaser has any ACL owned Equipment in its possession then:
a. Purchaser shall ensure that Equipment is clearly marked as the
property of ACL, and if asked, shall inform any third parties that
the Equipment is the property of ACL;
b. Purchaser shall not purport to create any security, mortgage,
lien or pledge over the Equipment, or otherwise deal with the
Equipment without ACL's express written consent; and
c. In the event of any threatened seizure of the Equipment by any
third parties, and on termination or expiration of this Agreement,
or any contract made pursuant to it, ACL shall have the right to
obtain a court order to restrain and /or prevent such seizure;
without prejudice to any other remedy which it may have at law in
respect of the equipment.
6. SUBCONTRACTING
ACL reserves the right to subcontract such portions of: (a) the Equipment
manufacture and/or Software development and supply; and/or (b)
installation to subcontractors of ACL's choice as ACL deems appropriate.
The prior written consent of the Purchaser shall be obtained for any sub
contract or assignment in accordance with Paragraph 6(b) above, such
consent not to be unreasonably withheld or delayed; so however that ACL
shall not be relieved of any of its obligations under this agreement by
reason of such subcontract or assignment.
7. WARRANTY.
7.1 THE WARRANTIES SET FORTH IN SECTIONS 7 AND 8 OF THIS AGREEMENT ARE IN
LIEU OF, AND ACL HEREBY DISCLAIMS, ALL OTHER WARRANTIES AND CONDITIONS,
WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED TERMS
OF SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE.
7.2 Subject to Sections 7.3 and 7.4, ACL warrants that the Equipment sold
to Purchaser under this Agreement shall, under normal use and service, be
free from defects in materials and faulty workmanship, and that the
Software licensed to Purchaser under this Agreement shall conform in all
material respects to ACL's published specifications therefor. The warranty
period for any item of Equipment and related
SUPPLY AGREEMENT - PAGE 8
(STDUKSA-revised May 2000)
Software shall be eighteen (18) months from Delivery (hereinafter, this
period of time shall be referred to as the " Warranty Period.")
7.3 ACL's obligation and Purchaser's sole remedy under this warranty are
limited to the replacement or repair, , of the defective Equipment or
Software within the Warranty Period. ACL shall have no obligation to
remedy any such defect if it can be shown that: (a) the Equipment or
Software was altered, repaired, or reworked by any party other than ACL
without ACL's prior written consent; (b) such defects were the result of
Purchaser's or a third party's improper storage, mishandling, abuse, or
misuse of the Equipment or Software; (c) such defects were the result of
Purchaser's or a third party's use of the Equipment or Software in
conjunction with equipment electronically or mechanically incompatible or
of an inferior quality; or (d) the defect was the result of damage by
fire, explosion, power failure, or any act of nature.
7.4 The Purchaser may require ACL to provide on-site operation and
maintenance services on such terms and conditions agreed by the parties.
7.5 Subject to the provisions of this warranty clause, defective parts
or components must be returned by Purchaser to ACL's point of
manufacture facility, freight prepaid, within the Warranty Period,
and said defective parts will be repaired or replaced by ACL at no
charge to Purchaser. In connection with such return by Purchaser,
Purchaser shall comply with ACL's (Return Material Authorisation
(RMA) procedures.) Risk of loss or damage to Equipment or Software
returned to ACL for repair or replacement shall be borne by
Purchaser until delivery to ACL. Upon delivery of such Equipment or
Software, ACL shall assume the risk of loss or damage until that
time that the Equipment or Software being repaired or replaced is
returned and delivered to Purchaser. Purchaser will pay the
transportation costs for Equipment or Software shipped to ACL for
repair or replacement save where the repair or replacement arose out
of faulty and defective design in workmanship or manufacture of the
equipment or software
7.6 . ACL shall pay all transportation costs associated with returning
repaired or replaced Equipment or Software to Purchaser unless there
was no fault found (NFF), in which event, Purchaser shall pay such
transportation costs along with ACL's then prevailing NFF charge.
7.7 ACL will charge Purchaser for any maintenance carried out which is not
covered by the warranties contained in Section 7.2 or Section 8 at the
rates agreed by the parties for such services.
SUPPLY AGREEMENT - PAGE 9
(STDUKSA-revised May 2000)
8. WARRANTY ON REPAIRED MATERIALS.
ACL warrants that the Equipment or Software returned by ACL following
repair or replacement by ACL shall be free from defects in materials and
faulty workmanship and that the Software will conform in all material
respects to ACL's published specifications therefor for ninety (90) days
from the date of Delivery or until the end of the Warranty Period,
whichever is longer.
9. LIMITATION OF LIABILITY.
9.1 WITHOUT PREJUDICE TO SECTION 9.3, NEITHER ACL NOR ANY OF ITS OFFICERS,
DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, SHAREHOLDERS, OR AFFILIATES
(ACL AND SUCH OTHER PERSONS, THE "ACL PARTIES"), SHALL HAVE ANY LIABILITY
TO PURCHASER IN CONTRACT, TORT OR OTHERWISE (INCLUDING WITHOUT LIMITATION
NEGLIGENCE OR BREACH OF STATUTORY DUTY) FOR LOSS OF PROFITS, INCOME,
REVENUE OR DATA, OR INCIDENTAL, CONSEQUENTIAL, INDIRECT OR PUNITIVE
DAMAGES OR LOSSES, ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT, ANY
PURCHASE ORDER PLACED PURSUANT TO THIS AGREEMENT OR ANY COLLATERAL
CONTRACT, OR FROM OR IN CONNECTION WITH THE EQUIPMENT OR THE SOFTWARE OR
THE USE THEREOF OR THE INABILITY TO USE THEM EITHER SEPARATELY OR IN
COMBINATION WITH OTHER EQUIPMENT OR SOFTWARE,
9.2. ACL shall be liable for physical damage to property due to ACL's
negligence up to a maximum aggregate amount of two million US Dollars
(USD2,000,000).
9.3 Nothing in this Agreement shall exclude or in any way limit ACL
liability for death or personal injury caused by its negligence.
10. SOFTWARE LICENCE.
10.1 ACL shall grant Purchaser a nonexclusive, non-transferrable license
to use the Software, only with the Equipment purchased under this
Agreement. Software licensed under this Agreement is defined as computer
programs contained on a magnetic tape, disc, semiconductor device, or
other memory, including: (a) hardwired logic instructions which manipulate
data in the central processor and which control input-output operations,
error diagnostics, and recovery routine; and (b) instruction sequences in
machine-readable code which control call processing, peripheral equipment,
and administration and maintenance functions as well as associated
documentation used to describe, maintain, and use the programs.
SUPPLY AGREEMENT - PAGE 10
(STDUKSA-revised May 2000)
10.2 Any Software provided to Purchaser by ACL shall be treated as the
exclusive property of ACL, and Purchaser shall: (1) treat such Software as
Confidential Information under Section 12 of this Agreement; (2) utilise
such Software or any portions or aspects thereof (including any methods or
concepts utilised therein) solely in conjunction with the Equipment; (3)
return to ACL all memory media, documentation and/or other material that
has been modified, updated or replaced; (4) not modify, disassemble or
decompile such Software, or reverse engineer any portion of the Software
or functioning of the ACL Products, or permit others to do so, without
ACL's prior written consent; and (5) not reproduce or copy such Software
in whole or in part except for backup and archival purposes or as
otherwise permitted in writing by ACL. (Information to achieve
interoperability of the Software with independently created programs,
within the meaning of Article 6 of the Directive on the Legal Protection
of Computer Programs shall be provided by ACL to the Purchaser upon the
signing of this agreement.
10.3 The obligations of Purchaser under this Section 10 shall survive the
termination of the Agreement for any reason and shall continue even if the
Software is no longer used with the Equipment.
11. DOCUMENTATION.
For the initial Purchase Order, ACL shall furnish six full sets of
documentation, in hard and soft copies to the Purchaser at no extra cost,
for the products specified in Exhibit A including cabling diagrams to be
used for the operation and maintenance of the Equipment and Software.
Thereafter, for documentation updates and further Purchase Orders ACL will
provide a single copy on CD-ROM and in hard copy. All such documentation
is to be treated in accordance with the terms of Section 12. Updates to
the documentation shall be at no charge during the Warranty Period.
12. CONFIDENTIAL INFORMATION.
12.1 The Confidentiality Agreement, dated 22 August 2001 between ACL and
the Purchaser is incorporated herein by reference. The obligations of
Sections 10 and 12 will survive termination or cancellation of this
Agreement.
13. EXCUSABLE DELAY
None of the parties shall suffer any liability for non-performance,
defective performance, or late performance under this Agreement
SUPPLY AGREEMENT - PAGE 11
(STDUKSA-revised May 2000)
due to causes beyond its control and without its fault or negligence such
as, but not limited to, acts of God, war (including civil war), civil
unrest, acts of government, fire, floods, explosions, the elements,
epidemics, quarantine, restrictions, strikes, lock-outs, plant shutdown.
In the event of excusable delay as defined in the preceding sentence, then
the affected party, upon giving prompt written notice to the other shall
be excused from such performance on a day-to-day basis to the extent of
such prevention, restriction, or interference (and the other party shall
likewise be excused from performance of its obligations on a day-to-day
basis to the extent that the party's obligations relate to the performance
so prevented, restricted, or interfered with), provided that the party in
default shall use its best endeavours to avoid or remove such causes of
non-performance and both parties shall proceed to perform with dispatch
whenever such causes are removed or cease to exist.
Each party reserves the right to cancel or otherwise terminate this
Agreement if the other's performance is delayed for a period of more than
ninety (90) days.
14. GENERAL INDEMNITY.
14.1 ACL agrees to indemnify and hold Purchaser harmless against all
costs, expenses, liabilities, damages, losses, claims, or proceedings
incurred by Purchaser in an action by a third party alleging that
Purchaser's use of the Equipment or the Software, separately or in
combination, as a whole or in part, constitutes an infringement of their
intellectual property rights wherever in the world enforceable, including
applications to register and rights to apply for any such rights
("Intellectual Property Rights"). ACL agrees to defend Purchaser against
any such claims and to pay all litigation costs, reasonable lawyer's fees,
settlement payments, and any damages awarded or resulting from any such
claim.
14.2 Purchaser shall promptly advise ACL of any such suit, claim, or
proceeding and shall co-operate with ACL in the defence or settlement
thereof. ACL shall have sole control of the defence of any action
involving such a claim and of all negotiations for its settlement.
14.3 In the event that an injunction is obtained against Purchaser's use
of the Equipment and/or the Software, in whole or in part, as a result of
any such claim under Section 14.1, ACL shall use its best efforts to
either: (a) procure for Purchaser the right to continue using the portions
of the Equipment or the Software enjoined from use; or (b) replace or
modify the same with functionally equivalent or better Equipment and/or
Software so that Purchaser's use is not subject to any
SUPPLY AGREEMENT - PAGE 12
(STDUKSA-revised May 2000)
such injunction. In the event that ACL cannot perform the remedies set
forth in Sections 14.3(a) or 14.3(b), then Purchaser shall have the right
to return such Equipment and the Software to ACL. In the event of such
return, ACL shall refund the full value of the Equipment and the licence
to use the Software within fifteen (15) days of the receipt by ACL of the
Equipment and the Software.
14.4 This indemnity shall not apply to claims arising in respect of the
use of the Equipment or Software supplied by ACL or manufactured by its
suppliers in accordance with any design or any special instruction
furnished by Purchaser, or which Purchaser uses in a manner or for a
purpose not contemplated by this Agreement.
14.5 The provisions of this Section 14 set forth the entire obligation of
ACL with respect to any claim of infringement of Intellectual Property
Rights.
15. REMEDIES AND TERMINATION.
15.1 Either party shall have the right, prior to payment to ACL of the
Invoice Total, to suspend its performance under this Agreement by written
notice to the other Party if that party shall: (a) become insolvent; (b)
have a receiver or manager appointed over the whole or any part of its
assets or business; (c) make any composition or arrangement with its
creditors; (d) take or suffer any similar action in consequence of debt,
or an order or resolution is made for its dissolution or liquidation
(other than for the purpose of amalgamation or reconstruction). .
15.2 In the event of any material breach of this Agreement by either party
which shall continue for thirty (30) or more days after written notice of
such breach (including a reasonably detailed statement of the nature of
such breach) shall have been given to the breaching party by the aggrieved
party, the aggrieved party shall be entitled at its option: (a) to avail
itself of any and all remedies available at law or equity; or (b) to
terminate this Agreement; or (c) if the aggrieved party is ACL, to suspend
performance of all of its obligations under the Agreement for as long as
the breach continues uncorrected or (d) if the aggrieved party is the
Purchaser, to suspend payment of any monies due and payable to ACL until
the breach is corrected.
15.3 In the event (a) either party fails timely to discharge its
obligations under this Agreement and (b) the aggrieved party employs a
lawyer in order to collect any amount due and unpaid or to enforce any
right or remedy hereunder, then the defaulting party agrees that, in
addition to all amounts due hereunder, it shall pay all costs of
SUPPLY AGREEMENT - PAGE 13
(STDUKSA-revised May 2000)
collection or enforcement including court costs and reasonable Lawyer's
fees.
16. PURCHASER'S RESPONSIBILITIES.
To the extent that Purchaser requests Installation Services, and ACL
accepts the Purchase Order for such Installation Services, then:
a. Purchaser shall ensure that all ACL-designated personnel have access
to Purchaser's premises and the Equipment during the times necessary
to install, maintain, and service the Equipment. ACL's personnel
shall comply with site and security regulations as specified by
Purchaser.
b. Purchaser shall provide reasonable working space and facilities
including cooling, light, ventilation, electric current and outlets
for use by ACL's designated personnel. Adequate storage space for
equipment and materials shall be made available by Purchaser as
required. All such facilities shall be provided at no charge to ACL.
c. Any information which ACL reasonably requests from Purchaser and
which is required for ACL to properly install or maintain the
Equipment shall be provided by Purchaser in a timely fashion and
form reasonably specified by ACL.
d. Purchaser shall not perform, or attempt to perform, or cause to be
performed any maintenance or repair to the Equipment during the term
of this Agreement, other than pursuant to this Agreement, without
ACL's prior, written consent.
17. ACL's RESPONSIBILITIES
To the extent that Purchaser requests Installation/or and Maintenance
Services and/or training services, and ACL accepts the Purchase Order for
such Services, then:
a. ACL shall provide all necessary tools and test equipment required
for the installation, testing and commissioning of the Equipment and
Software.
b. ACL shall work in conjunction with other contractors of Monarch for
the interfacing and integration of ACL equipment and Software with
third party software.
SUPPLY AGREEMENT - PAGE 14
(STDUKSA-revised May 2000)
c. ACL shall ensure that Monarch Staff are adequately trained in all
stages of the equipment installation, integration, testing,
commissioning, operations and maintenance stages.
d. ACL shall provide Acceptance Test Procedures, which shall be
agreeable to both parties.
18. NOTICES.
All notices, requests, consents and other communications hereunder must be
in writing and will be deemed to have been properly given when actually
received by the party to whom sent, at the following addresses:
If to ACL: If to PURCHASER:
FAO: Contracts Manager Xxxx Xxxxxxx and X. X. Xxxxxxx
Airspan Communications Ltd. Monarch Communications Ltd.
Cambridge House, Orbital House,
Oxford Road, No. 180 Awolowo Road,
Uxbridge, Middlesex Ikoyi,
UB8 1UN Lagos
England Nigeria
19. HARDWARE AND SOFTWARE VERIFICATION
19.1 If Installation Services are ordered, ACL shall, upon completion of
the installation, test the Equipment. Purchaser may witness the
installation and test performance.
19.2 When the Equipment and Software have satisfactorily completed all of
ACL's tests, ACL shall provide Purchaser with a "Hardware and Software
Verification" certificate. The written acceptance of the certificate by
Purchaser will be deemed, for purposes of this Agreement, as "Completion
of Installation".
19.3 The tests that the ACL Products must successfully complete as part of
the commissioning process are set forth in Exhibit C hereto. Such
commissioning tests may be amended from time to time by agreement of both
parties in writing.
20. PUBLICITY.
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(STDUKSA-revised May 2000)
Both parties agree not to publish any press releases or otherwise
publicise the existence, or any of the terms, of this Agreement without
the prior written consent of the other party.
21. MISCELLANEOUS.
21.1 This Agreement shall be construed in accordance with and governed by
the laws of England, without regard to its conflicts of law rules.
21.2 (a) Any dispute, controversy or claim between the parties arising out
of, or in connection with, this Agreement, or the breach, termination or
validity thereof will be resolved by mutual agreement of the parties. If
any dispute, controversy, or claim arising out of or relating to this
Agreement, or the breach, termination, or validity thereof is unable to be
resolved by mutual agreement of the parties, then any such dispute shall
be finally resolved by arbitration under the Rules of the Chartered
Institute of Arbitrators, England, as then in force, by one or more
arbitrators appointed in accordance with said Rules. The place of
arbitration shall be London, England. The language used during arbitration
shall be the English language. The parties agree that the award of the
arbitrator(s) shall, except as provided below, be the sole and exclusive
remedy between them regarding the claims, counterclaims, issues or
accounting presented or pled to the arbitrator(s) and that the award may
be enforced in other jurisdiction in any manner provided by law. The
arbitrator(s) shall be entitled to award to the substantially prevailing
party its attorneys fees and costs incurred in connection with the
arbitration proceedings and preparation for the same.
(b) Notwithstanding the provisions of item (a) above, the parties hereto
shall be entitled to seek injunctive or similar relief from a court of
competent jurisdiction with respect to any actual, impending or threatened
breach of confidentiality provisions and other provisions of this
Agreement, including provisions intended to protect intellectual property
rights. In any court proceedings contemplated by this item (b), the
substantially prevailing party shall be entitled to recover from the other
party its attorneys fees and costs.
21.3 The delay or failure on the part of any of the parties to enforce at
any time any of the provisions of this Agreement or any right with respect
thereto, or to exercise any option herein provided shall in no way be
construed to be a waiver of such provision, rights, or options, or in any
way to affect its right later to enforce them. The exercise by any of the
parties of its rights hereunder or of any options hereunder under the
terms or covenants herein shall not preclude or prejudice the party
SUPPLY AGREEMENT - PAGE 16
(STDUKSA-revised May 2000)
from thereafter exercising the same or any right which it may have under
this Agreement, irrespective of any previous action or proceeding taken by
the party hereunder.
21.4 This Agreement shall be binding upon and inure to the benefit of the
successors, legal representatives and assigns of both parties.
21.5 This Agreement and any Exhibit hereto shall be modified only by an
instrument in writing that is signed by duly authorised representatives of
the parties.
21.6 The provisions of this Agreement are severable, and if any provision
is held invalid or unenforceable in whole or in part in any jurisdiction,
then such invalidity or unenforceability will affect only such provision
or part thereof in such jurisdiction, and will not in any manner affect
the provision in any other jurisdiction, or any other provision in this
Agreement in any other jurisdiction. To the extent legally permissible, an
arrangement that reflects the original intent of the parties will be
substituted for such invalid or unenforceable provision.
21.7 All obligations that by their nature survive the expiration,
cancellation or termination of this Agreement shall remain in effect after
its expiration, cancellation or termination.
21.8 None of the parties shall be entitled to assign this Agreement or its
rights under it without the prior written consent of the other party, and
such consent shall not to be unreasonably withheld or delayed.
21.9 In the performance of its obligations under this Agreement, the
parties shall at all times strictly comply with all export laws,
regulations, and orders of the United Kingdom and the United States of
America. Purchaser specifically acknowledges that Equipment, Software, or
technology obtained from ACL pursuant to this Agreement shall not be
exported, re-exported, transhipped, disclosed, diverted, or transferred,
directly or indirectly, contrary to U.K. and U.S. laws, orders or
regulations, which ACL shall provide to the purchaser on request.
21.10 TAXES
It is hereby agreed that each party shall be responsible for such taxes,
levies and other charges issued in their respective countries in respect
of this agreement.
22. This document constitutes the entire agreement between the parties with
respect to the subject matter hereof, and supersedes all previous
communications, representations, understandings and agreements,
SUPPLY AGREEMENT - PAGE 17
(STDUKSA-revised May 2000)
either oral or written, between the parties or any official or
representative thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the Effective Date, such parties acting by their
officers, being thereunto duly authorised.
Airspan Communications Ltd. Monarch Communications Ltd.
By:________________________________ By:____________________________
Name:______________________________ Name:__________________________
Title:_____________________________ Title:_________________________
SUPPLY AGREEMENT - PAGE 18
(STDUKSA-revised May 2000)
EXHIBIT A
"ACL Products"
AS4000 and AS8100 products. Purchaser may order the following items:
--------------------------------------------------------------------------------
Catalogue number and Item description
--------------------------------------------------------------------------------
Subscriber Terminal type
--------------------------------------------------------------------------------
801-6319 : ST-R1, 1-line 64k or 32k POTS (Ant, SIU, internal batt) options:
Type 6 Eur
--------------------------------------------------------------------------------
801-6329 : ST-R2, 2-line 64k or 32k POTS (Ant, SIU, internal batt) options:
Type 6 Eur
--------------------------------------------------------------------------------
803-6349 : ST-N4, 4-Line 64k or 32k POTS (Ant, SIU) options: Type 6 Eur
--------------------------------------------------------------------------------
804-6319 : ST-B1, (ISDN 2B+D) (Ant, SIU) options: Type 6 Eur
--------------------------------------------------------------------------------
811-6329 : ST-P1V2, Ethernet+2-Line 64 & 32k POTS (Ant, SIU) options: Type 6
Eur
--------------------------------------------------------------------------------
ST Ancillaries and Spares
--------------------------------------------------------------------------------
890-0009 : ST antenna drop cable kit (300m standard cable)
--------------------------------------------------------------------------------
000-0000-000 : ST Installation toolkit
--------------------------------------------------------------------------------
CT and AC Rack mechanics
--------------------------------------------------------------------------------
700-0002 : CT Rack with RF Combiner shelf + 2 AS4000 Modem shelves (E1)
--------------------------------------------------------------------------------
703-0002 : Rack with 2 AC shelves
--------------------------------------------------------------------------------
CT Antenna Systems
--------------------------------------------------------------------------------
710-6941 : Directional Antenna, 1 feeder port, 90 Deg 3.4-3.7 GHz
--------------------------------------------------------------------------------
CT Antenna Feeder
--------------------------------------------------------------------------------
712-0050 : CT Antenna Feeder 7/8 inch coaxial (1x50m)+ Installation kit
--------------------------------------------------------------------------------
CT RF plug in sets
--------------------------------------------------------------------------------
720-6300 : CT RF full plug in set 3.4-3.6 GHz Plan 1 (2PA+MON+3PSU+2DIPLNA)
--------------------------------------------------------------------------------
CT AS4000 DA Modem shelf card sets and AS4020 Modem shelves
--------------------------------------------------------------------------------
751-6300 : DA Modem shelf full card set (E1) (3.5MHz) 3.4-3.6 GHz Plan 1
(RF+AU+TU+SC+2PSU+5Modems)
--------------------------------------------------------------------------------
AC Shelf plug-ins
--------------------------------------------------------------------------------
780-0000 : AC Basic Shelf card set (Generic E1) (2PSU+SC+CTU+XTU)
--------------------------------------------------------------------------------
000-0000-000 : E1 TU card
--------------------------------------------------------------------------------
000-0000-000 : AC CU card
--------------------------------------------------------------------------------
000-0000-000 : AC PTU card
--------------------------------------------------------------------------------
Software and NMS
--------------------------------------------------------------------------------
870-1000 : AS8100/8200 Sitespan Desktop Hardware Platform (Windows NT PC +
Serial port expansion.)
--------------------------------------------------------------------------------
870-2100 : AS8100 Sitespan Client / Server software (AS4000 support) and RTU
license
--------------------------------------------------------------------------------
870-2300 : AS8100/8200 Sitespan Shelf License
--------------------------------------------------------------------------------
870-2900 : Annual Maintenance/Upgrade charge for Sitespan software
--------------------------------------------------------------------------------
871-xxxx : V5.x License for 1000 subscribers
--------------------------------------------------------------------------------
872-1000 : STMON for Windows 98 and NT
--------------------------------------------------------------------------------
Documentation
--------------------------------------------------------------------------------
880-2000 : AS4000 DA Documentation (CD-ROM)
--------------------------------------------------------------------------------
880-3000 : AS8100/8200 (Sitespan) Documentation (CD-ROM)
--------------------------------------------------------------------------------
Services (NB. Estimate only. Travel and expenses not included)
--------------------------------------------------------------------------------
885-2000 : Installation services (per day, excl T&E)
--------------------------------------------------------------------------------
SUPPLY AGREEMENT - PAGE 19
(STDUKSA-revised May 2000)
EXHIBIT B
"Price List"
SUPPLY AGREEMENT - PAGE 20
(STDUKSA-revised May 2000)
EXHIBIT B
"Price List"
-------------------------------------------------------------------------------------------------------------------------------
Schedule of Equipment for Monarch Nigeria Project Quantities
-------------------------------------------------------------------------------------------------------------------------------
Infrastructure
-------------------------------------------------------------------------------------------------------------------------------
Catalogue number and Item description Price Agro Diyan Ikeja Apapa
-------------------------------------------------------------------------------------------------------------------------------
Subscriber Terminal type
----------------------------------------------------------------------------------------------
801-6319 : ST-R1, 1-line 64k or 32k POTS (Ant, SIU, internal batt) options:
Type 6 Eur *
801-6329 : ST-R2, 2-line 64k or 32k POTS (Ant, SIU, internal batt) options:
Type 6 Eur *
803-6349 : ST-N4, 4-Line 64k or 32k POTS (Ant, SIU) options: Type 6 Eur *
804-6319 : ST-B1, (ISDN 2B+D) (Ant, SIU) options: Type 6 Eur *
811-6329 : ST-P1V2, Ethernet+2-Line 64 & 32k POTS (Ant, SIU) options:
Type 6 Eur *
Total Subscriber Terminals
----------------------------------------------------------------------------------------------
ST Ancillaries and Spares
890-0009 : ST antenna drop cable kit (300m standard cable) *
000-0000-000 : ST Installation toolkit *
Total ST Ancillaries and Spares
----------------------------------------------------------------------------------------------
CT and AC Rack mechanics
700-0002 : CT Rack with RF Combiner shelf + 2 AS4000 Modem shelves (E1) * * * *
703-0002 : Rack with 2 AC shelves * *
Total CT and AC Rack mechanics
----------------------------------------------------------------------------------------------
CT Antenna Systems
710-6941 : Directional Antenna, 1 feeder port, 90 Deg 3.4-3.7 GHz * * * *
Total CT Antenna Systems
----------------------------------------------------------------------------------------------
CT Antenna Feeder
712-0050 : CT Antenna Feeder 7/8 inch coaxial (1x50m)+ Installation kit * * * *
Total CT Antenna Feeder
----------------------------------------------------------------------------------------------
CT RF plug in sets
720-6300 : CT RF full plug in set 3.4-3.6 GHz Plan 1 (2PA+MON+3PSU+2DIPLNA) * * * *
Total CT RF plug in sets
----------------------------------------------------------------------------------------------
CT AS4000 DA Modem shelf card sets and AS4020 Modem shelves
751-6300 : DA Modem shelf full card set (E1) (3.5MHz) 3.4-3.6 GHz Plan 1
(RF+AU+TU+SC+2PSU+5Modems) * * * *
Total CT AS4000 DA Modem shelf card sets and AS4020 Modem shelves
----------------------------------------------------------------------------------------------
AC Shelf plug-ins
780-0000 : AC Basic Shelf card set (Generic E1) (2PSU+SC+CTU+XTU) * *
000-0000-000 : E1 TU card * *
000-0000-000 : AC CU card * *
000-0000-000 : AC PTU card * *
Total AC Shelf plug-ins
----------------------------------------------------------------------------------------------
Software and NMS
870-1000 : AS8100/8200 Sitespan Desktop Hardware Platform (Windows NT PC +
Serial port expansion.) * *
870-2100 : AS8100 Sitespan Client / Server software (AS4000 support) and RTU
license * *
870-2300 : AS8100/8200 Sitespan Shelf License * *
870-2900 : Annual Maintenance/Upgrade charge for Sitespan software * *
871-xxxx : V5.x License for 1000 subscribers * *
872-1000 : STMON for Windows 98 and NT * *
Total Software and NMS
----------------------------------------------------------------------------------------------
Documentation
880-2000 : AS4000 DA Documentation (CD-ROM) * *
880-3000 : AS8100/8200 (Sitespan) Documentation (CD-ROM) * *
Total Documentation
----------------------------------------------------------------------------------------------
Services (NB. Estimate only. Travel and expenses not included)
885-2000 : Installation (per day, excl T&E) * *
885-1000 : Site Survey (per day, excl T&E) *
885-3000 : Radio Planning (per day, excl T&E) *
885-4000 : Airspan Training (per day at Uxbridge for up to 7 students, excl T+E) *
885-4001 : Airspan Training (per day on Customer premises for up to 7 students,
excl T+E) *
885-4002 : Airspan Training (per day per additional student, excl T+E) *
885-5000 : Project Management (per manager per day, excl T&E) *
Total Services
----------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------------
Totals
-------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Schedule of Equipment for Monarch Nigeria Project Quantities
------------------------------------------------------------------------------------------------------------------------------------
Infrastructure Subscribers
------------------------------------------------------------------------------------------------------------------------------------
Catalogue number and Item description Agege Amuwo-Odofin Units
------------------------------------------------------------------------------------------------------------------------------------
Subscriber Terminal type
------------------------------------------------------------------------------------
801-6319 : ST-R1, 1-line 64k or 32k POTS (Ant, SIU, internal batt) options:
Type 6 Eur *
801-6329 : ST-R2, 2-line 64k or 32k POTS (Ant, SIU, internal batt) options:
Type 6 Eur *
803-6349 : ST-N4, 4-Line 64k or 32k POTS (Ant, SIU) options: Type 6 Eur *
804-6319 : ST-B1, (ISDN 2B+D) (Ant, SIU) options: Type 6 Eur
811-6329 : ST-P1V2, Ethernet+2-Line 64 & 32k POTS (Ant, SIU) options:
Type 6 Eur *
Total Subscriber Terminals
------------------------------------------------------------------------------------
ST Ancillaries and Spares
890-0009 : ST antenna drop cable kit (300m standard cable) *
000-0000-000 : ST Installation toolkit
Total ST Ancillaries and Spares
------------------------------------------------------------------------------------
CT and AC Rack mechanics
700-0002 : CT Rack with RF Combiner shelf + 2 AS4000 Modem shelves (E1) * *
703-0002 : Rack with 2 AC shelves
Total CT and AC Rack mechanics
------------------------------------------------------------------------------------
CT Antenna Systems
710-6941 : Directional Antenna, 1 feeder port, 90 Deg 3.4-3.7 GHz * *
Total CT Antenna Systems
------------------------------------------------------------------------------------
CT Antenna Feeder
712-0050 : CT Antenna Feeder 7/8 inch coaxial (1x50m)+ Installation kit * *
Total CT Antenna Feeder
------------------------------------------------------------------------------------
CT RF plug in sets
720-6300 : CT RF full plug in set 3.4-3.6 GHz Plan 1 (2PA+MON+3PSU+2DIPLNA) * *
Total CT RF plug in sets
------------------------------------------------------------------------------------
CT AS4000 DA Modem shelf card sets and AS4020 Modem shelves
751-6300 : DA Modem shelf full card set (E1) (3.5MHz) 3.4-3.6 GHz Plan 1
(RF+AU+TU+SC+2PSU+5Modems) * *
Total CT AS4000 DA Modem shelf card sets and AS4020 Modem shelves
------------------------------------------------------------------------------------
AC Shelf plug-ins
780-0000 : AC Basic Shelf card set (Generic E1) (2PSU+SC+CTU+XTU)
000-0000-000 : E1 TU card
000-0000-000 : AC CU card
000-0000-000 : AC PTU card
Total AC Shelf plug-ins
------------------------------------------------------------------------------------
Software and NMS
870-1000 : AS8100/8200 Sitespan Desktop Hardware Platform (Windows NT PC +
Serial port expansion.)
870-2100 : AS8100 Sitespan Client / Server software (AS4000 support) and RTU
license
870-2300 : AS8100/8200 Sitespan Shelf License
870-2900 : Annual Maintenance/Upgrade charge for Sitespan software
871-xxxx : V5.x License for 1000 subscribers
872-1000 : STMON for Windows 98 and NT
Total Software and NMS
------------------------------------------------------------------------------------
Documentation
880-2000 : AS4000 DA Documentation (CD-ROM)
880-3000 : AS8100/8200 (Sitespan) Documentation (CD-ROM)
Total Documentation
------------------------------------------------------------------------------------
Services (NB. Estimate only. Travel and expenses not included)
885-2000 : Installation (per day, excl T&E)
885-1000 : Site Survey (per day, excl T&E)
885-3000 : Radio Planning (per day, excl T&E)
885-4000 : Airspan Training (per day at Uxbridge for up to 7 students, excl T+E)
885-4001 : Airspan Training (per day on Customer premises for up to 7 students,
excl T+E)
885-4002 : Airspan Training (per day per additional student, excl T+E)
885-5000 : Project Management (per manager per day, excl T&E)
Total Services
------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Total
------------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------- ---------------------------------
Summary Discount Schedule
--------------------------------------------------------------------------------- ---------------------------------
Infrastructure Total >* STs per yr
---------------------------------
Subscribers
--------------------------------------------------------------------------------- ---------------------------------
* R1 *
---------------------------------
R2 *
--------------------------------------------------------------------------------- ---------------------------------
Subscriber Total N4 *
---------------------------------
B1 *
--------------------------------------------------------------------------------- ---------------------------------
Grand Total P1V2 *
---------------------------------
Infrastructure
---------------------------------
*
--------------------------------------------------------------------------------- ---------------------------------
Quote ref 2001-33 R10 -------------------------------------------------
9/14/2001 In event of a further order being placed for
Quote expires 24/09/01 delivery before 15th September 2002 of * STs or
1. All prices are quoted CIP Lagos (as per Incoterms 2000) greater, then the unit price reduces for the
2. Payment is by LOC or other similar means whole volume to that shown in the >* STs column.
3. Please refer to the quote reference number in any communications with Airspan. A purchase credit will be applied to this
4. Payment 10% with order, 50% 50 days after delivery, 40% 140 days after additional order such that the aggregate unit
delivery. price of the total quantity delivered during the
5. Initial Firm Order placed by 15/9/01 for 5 infrastructure sites and 4,000 STs year will equal the prices in the >* STs column.
6. Delivery of infrastructure and 500 STs to freight forwarders by end September -------------------------------------------------
2001, delivery in country by end October 2001. Balance of STs to be delivered by
end December 2001.
7. ACL will provide two site visits in Lagos during the first year FOC
8. ACL will provide 870-2300 and 871-xxxx FOC for later stages of infrastructure.
9. ACL will provide 20 working days of ISTAS time for ST installation and
training FOC.
---------------------------------------------------------------------------------
--------------------------------------- ----------------------------------------
Signature: Signature:
\s\ R Olowude \s\ X. Xxxxx
R Olowude J Paget
Chairman Chief Operating Officer
Monarch Communications Limited Airspan Networks Inc
--------------------------------------- ----------------------------------------
SUPPLY AGREEMENT - PAGE 21
(STDUKSA-revised May 2000)