EXHIBIT 10.6
REVISED OEM PURCHASE AGREEMENT
THIS AGREEMENT NO. [ ........] is made this [ 27TH ] day of [March ] 1998
BETWEEN
A) NORTHERN TELECOM LIMITED, a company incorporated under the laws of
Canada, having an office at 0000 Xxxxx Xxxx, Xxxxxxxx, Xxxxxxx, X0X 0X0
Xxxxxx, (hereafter referred to as "NTL")
AND
B) interWAVE Communications International, a B.V. company incorporated in
the Netherlands with offices at Xxxxxxxxx 0, 0000 XX Amsterdam, X.X.
Xxx 00000x 0000 Xxxxxxxxx, Xxx Xxxxxxxxxxx, (hereinafter referred to as
"the Supplier").
collectively referred to as the "Parties" and individually as "Party".
WHEREAS the Purchaser desires to purchase Goods and Services in accordance with
the Specifications and requirements detailed in the Agreement and the Supplier
agrees to supply the same, subject to the terms and conditions set out hereunder
and the Schedules comprising part of the Agreement.
IT IS HEREBY AGREED BETWEEN THE PARTIES AS FOLLOWS:
1. Definitions
The following definitions shall apply to the Agreement and all Purchase Orders:
a) "Affiliates" shall, in the case of NTL, include the parent
corporation Northern Telecom Limited, and Northern Telecom
Inc., and any corporation which the parent corporation
controls directly or indirectly, through the ownership or
control of shares or securities in such other corporation, or
otherwise, and in the case of the Supplier shall include the
parent corporation interWAVE Communications International,
Ltd., a Bermuda corporation, and any corporation which the
parent corporation controls directly or indirectly, through
the ownership or control of shares or securities in such other
corporation, or otherwise.
b) "Agreement" shall mean this agreement between the Purchaser
and the Supplier for the supply of Goods and Services,
including herein all documents to which reference may properly
be made in order to ascertain the rights and obligations of
the Parties.
c) "Customer(s)" shall mean any customer of the Purchaser for
which Goods and/or Services may ultimately be required.
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d) "Equipment" shall mean the materials and hardware described in
Schedule 10.
e) "Goods" shall be the collective term given to Equipment and
Software.
f) "OEM Purchase Agreement Number" shall mean the Agreement No.
first above written.
g) "Purchase Order(s)" shall mean the Purchaser's order placed on
the Supplier in accordance with Clause 4 of the Agreement for
the supply of Goods and/or Services for which the terms and
conditions under the relevant Schedule and those referred to
under Clause 6 shall apply.
h) "Purchaser" shall mean NTL and any Amliate issuing Purchase
Orders under this Agreement.
i) "Services" shall mean the services to be provided by the
Supplier to the Purchaser as detailed in any Purchase
Order(s), including but not limited to, engineering services
and Technical Support.
j) "Specification" shall mean the document(s) detailed in
Schedule 3.
k) "Software" shall mean software programs and associated
documentation described in Schedule 10.
l) "Technical Support" shall mean the provision, by the Supplier,
of the support and maintenance services for Equipment and
Software as detailed in Schedule 4, Clause 4.
m) The singular includes the plural and vice versa, where the
context so requires.
n) The masculine includes the feminine and vice versa.
2. SCOPE
The Agreement provides a simplified procedure under which, from lime m
time, the Purchaser may place Purchase Orders for the supply of Goods
and/or Services in accordance with the terms detailed therein. The
Goods and Services which may be supplied under the Agreement are:
2.1 Supply of Goods;
2.2 Engineering/Installation Services (only to the extent mutually
agreed upon by the parties);
2.3 Spares of Equipment;
2.4 Support services in accordance with the provisions of Schedule
4;
2.5 Training courses for Purchaser and Customer personnel in
accordance with Schedule 5; and
2.6 Documentation for Goods as described in Schedule 3.
3. TERM AND TERMINATION OF THE AGREEMENT
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3.1 The Agreement shall commence on the date first above written
and shall, subject to the earlier termination in accordance
with the provisions contained therein, continue for a period
of five (5) years wherein it shall terminate unless extended
for such further period or periods as shall be agreed, in
writing, between the Parties.
3.2 Without prejudice to other rights, either party shall have the
right forthwith to terminate the Agreement upon written
notice, including all Purchase Orders, and to claim for any
resulting losses or expenses if the other party commits a
breach of the Agreement and fails to remedy the breach within
60 days of written notice from the non-defaulting parties
indicating: (i) the nature and basis of such default with
reference to the applicable provisions of this Agreement, and
(ii) the non-defaulting party's intention to terminate this
Agreement under this sub-clause 3.2 if such default continues.
3.3 Termination of this Agreement shall not affect the validity of
software licenses for Equipment previously sold by Supplier.
Upon termination of the Agreement pursuant to sub-clause 3.2,
all obligations of both parties accruing after the date of
termination, shall be terminated (except as set forth in
sub-clause 3.4), including Purchaser's obligation to pay
penalties for subsequent quarters pursuant to Schedule 9,
provided that any such termination shall have no effect on the
terminating party's rights to claim for any resulting losses
and expenses as set forth in sub-clause 3.2.
3.4 The provisions of Clauses 7, 10 and sub-clause 11.5 shall
survive any termination or expiration of this Agreement.
4. ORDERING PROCEDURE AND FORECAST
4.1 Goods and Services shall be supplied in accordance with
accepted Purchase Order submitted by the "Procurement
Administrator" of the Purchaser. Such Procurement
Administrator is detailed in Schedule 7.
4.2 Purchase Orders will be sent to the address detailed in
Schedule 7.
4.3 All Purchase Orders will quote the "OEM Purchase Agreement
Number" and the Supplier's Part Number (as shown in Schedule
2 ).
4.3.1 This Agreement will be supplemented by a
configuration guide to be completed jointly by the
Purchaser and Supplier within 30 days of signing this
Agreement. The material in the configuration guide
shall be created to assist the Purchaser in
developing sales materials and to facilitate the
ordering process as further described in sub-clause
4.3.2.
4.3.2 This Agreement will be supplemented by an ordering
guide to be completed jointly by the Purchaser and
Supplier within 45 days of signing this Agreement.
The material in the ordering guide will contain
further clarifications to Schedule 2 and will be
consistent with the contents of this Agreement. In
the case of dispute between this agreement and the
ordering guide, this agreement shall prevail. The
sole purpose of these actions will be to simplify the
ordering and delivery of the goods and is not meant
to alter or modify this agreement.
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4.4 The Supplier hereby agrees to acknowledge all Purchase Orders
which conform to the terms of the Agreement. The Supplier
shall forward a written acknowledgement of receipt of Purchase
Orders within 2 working days of receipt thereof to the address
given in Schedule 7 (sub-clause 3.1), and written acceptance
or rejection within seven (7) days, failing which the Purchase
Order shall be deemed accepted by the Supplier. Supplier shall
use best efforts to accept Purchase Orders for aggregate
quantities up to those in Purchaser's forecast for the
corresponding period as described in Schedule 2. All Purchase
Orders once accepted shall constitute separate and individual
contracts under the Agreement.
4.5 The delivery/performance lead times for Goods and Services are
detailed in Schedule 2 Paragraph 4.
4.6 Periodic Reviews and Goods Volume Forecast
4.6.1 Purchaser shall provide forecasts of the Purchaser's
required volume of Goods as set forth in Schedule 2.
Manufacture of Goods in advance of receipt of valid
Purchase Orders shall be at the Supplier's sole risk
and expense, except as set forth in Schedule 9.
4.6.2 The Parties will meet monthly to review each other's
performance of its obligations under the Agreement.
Such reviews will include:
4.6.2.1 The Suppliers performance in respect off
quality requirement stock holding levels,
lead times;
4.6.2.2 Price;
4.6.2.3 Forward order book;
4.6.2.4 Forecasts and orders and open technical
issues; and
4.6.2.5 under the Agreement.
4.7 Each Affiliate may, but shall not be obligated to, issue
Purchase Orders to the Supplier, and the Supplier shall
fulfill such Purchase Order in accordance with the provisions
of this Agreement. Each Purchase Order issued to Supplier
shall create rights and obligations solely between the
Supplier and the Affiliate which issues the Purchase Order. No
Affiliate shall be liable to Supplier for performance of any
obligation of another Affiliate arising in connection to this
Agreement. For purpose of this Agreement, an Affiliate issuing
a Purchase Order shall be considered as Purchaser in terms of
the rights and obligations set forth in this Agreement. Such
Purchase Orders shall be submitted to the Supplier by the
Affiliate through the Procurement Administrator as set forth
in Schedule 7.
5. PRICE
5.1 The price(s) to be paid by the Purchaser for the supply of
Goods and Services:
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- are detailed in Schedule 2 of the Agreement., as may
be amended from time to time in accordance with the
provisions detailed therein;
- will be stated on the Purchase Order and shall be
consistent with this Agreement;
- are exclusive of VAT, sales and all other like taxes,
customs, duties, tariffs, and other similar charges,
provided that the Supplier agrees not to assess any
applicable excise or sales tax where the Purchaser
furnishes Supplier a valid tax exemption certificate,
a certificate of authority, a direct pay permit
and/or any equivalent acceptable to the applicable
taxing authority.
- do not include all shipping, freight, delivery and
insurance charges for shipments to the address
detailed on the Purchase Order in the United States,
which will be born by the Purchaser, and unless
otherwise agreed to in writing, the Supplier shall be
entitled to invoice the Purchaser for the price of
Goods shipped outside the United States including any
transport, packaging, and insurance charges.
- shall be set forth on the invoice billed to Purchaser
along with a reference to the Purchase Order for such
Goods.
5.2 Supplier shall use all reasonable efforts to provide accurate
tax, delivery, and insurance information on all invoices where
appropriate.
5.3 The Purchaser shall withhold taxes required to be withheld
from payments made by the Purchaser to the Supplier.
5.4 The price(s) stated in Schedule 2 are FOB Supplier's plant.
6. PURCHASE ORDER TERMS AND CONDITIONS
6.1 Unless otherwise agreed in writing by both parties, the terms
and conditions detailed in Schedule 1 shall apply to all
Purchase Orders and shall prevail over and be to the exclusion
of any terms. and conditions proposed by either party in any
Purchase Order acknowledgment or any other document.
6.2 Sub-clause 6.1 shall not serve to prevent either party
requesting amendments to the terms and conditions detailed in
Schedule 1 to reflect Customer, supplier or other requirements
for specific projects. The Parties agree to discuss, in good
faith, any such requested amendments.
7. CONFIDENTIALITY
7.1 Each of the parties recognizes and agrees that the
unauthorized use or disclosure of the other party's
confidential or proprietary information relating to such
party's business plans, technology, and products
("Confidential Information") would cause irreparable injury to
the disclosing party for which it would have no adequate
remedy at law, and that an actual or
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threatened breach of this Clause shall entitle the disclosing
party to obtain immediate injunctive relief prohibiting such
breach, in addition to any other rights and remedies available
to it. If Confidential Information is disclosed orally, the
disclosing party shall notify the receiving party of the
confidential nature of the Confidential Information at the
time of disclosure and such Confidential Information shall be
reduced to writing, marked as confidential and delivered to
the receiving party within thirty (30) days after oral
disclosure.
7.2 For the period during and for three (3) years following the
last clay of the term all Confidential Information shall be
subject to the following:
7.2.1 The recipient shall restrict disclosure of the
Confidential Information to recipient's employees and
contractors with a "need to know" (i.e. employees and
contractors that require the Confidential Information
to perform their responsibilities in connection with
this Agreement) and shall not disclose it to any
other person or entity without the prior written
consent of the disclosing party,
7.2.2 The recipient shall use the Confidential Information
only for the purposes of performing under this
Agreement;
7.2.3 The recipient shall advise those employees and
contractors who access the Confidential Information
of their obligations with respect thereto;
7.2.4 The recipient shall copy the Confidential-Information
only as necessary for those employees and contractors
who are entitled to receive it and ensure that all
confidentiality notices are reproduced in full on
such copies; and
7.2.5 The recipient shall return all copies of such
Confidential Information to the disclosing party at
the disclosing party's request.
7.2.6 If any Confidential Information is required to be
disclosed in response to a valid order of the court
or lawful request of a government agency, the
recipient shall first notify the disclosing party of
the order or request and permit the disclosing party
to seek an appropriate protective order.
7.3 The confidentiality obligations set forth in this Clause 7
will not apply to any Confidential Information that:
- becomes known to the general public without fault or
breach on the part of the receiving party;
- the receiving party obtains from a third party
without breach of a nondisclosure obligation and
without restriction on disclosure;
- is furnished to a third party by the disclosing party
without a similar restriction on such third party's
rights;
- can by written records be shown to have been known by
the receiving party at the time of disclosure; or
PAGE 6 OF 58
- the receiving party can demonstrate to the reasonable
satisfaction of the disclosing party was developed
independently by employees or contractors of the
receiving party who had no access to Confidential
Information directly related to such independent
development
7.4 Neither party shall publicly disclose any information
regarding the terms and conditions contained herein without
having received prior approval, in writing, from the other
party.
8. QUALITY REQUIREMENTS
The quality requirements detailed in Schedule 6 shall apply to all
Goods and Services supplied under or in connection with the Agreement.
9. ENTIRE AGREEMENT
This Agreement, together with its Schedules and all Purchase Orders,
along with the Series G Preferred Stock and Warrant Purchase Agreement,
the Technical Information Agreement, and the Patent License Agreement,
together constitute the complete statement of the obligations of the
Parties as to the subject matter hereof and supersedes all previous
agreements and understandings between the Parties, whether oral or
written, and may not be modified except in writing signed by the duly
authorized representatives of both Parties. The OEM Purchase Agreement
entered into between the parties and dated March 17, 1998 is superseded
and replaced in its entirety by this Revised OEM Purchase Agreement.
10. DISPUTES AND GOVERNING LAWS
10.1 In the event the Parties are unable to amicably settle
disputes between them, and unless the Parties mutually elect
to pursue an alternative dispute procedure, whether binding or
non-binding, all actions or proceedings to enforce, or which
arise in connection with or relate to, this Agreement, any of
the agreement in the form of Exhibits hereto or any of the
transactions contemplated hereby or thereby shall be brought
and litigated exclusively in the United States District Court,
Northern District of California (or, in the event such court
does not have jurisdiction, the courts of the State of
California located in such district), unless such actions or
proceedings are required to be brought in another court to
obtain subject matter jurisdiction over the matter in
controversy. In any such actions or proceedings, service of
process may be made upon the other Party hereto by registered
or certified mail, return receipt requested, to its address
indicated herein, which service shall be deemed effective 10
days after mailing, Each of the Parties hereto (i) consents to
the jurisdiction of such court or courts and to service of
process by registered or certified mail, as provided above, or
by any other manner provided by the laws of the State of
California and the rules of such courts and (ii) waives any
right it may have to assert the doctrine of FORUM NON
CONVENIENS, to assert that it is not subject to the
jurisdiction of such courts or to object to venue to the
extent any action or proceeding is brought in accordance with
this sub-clause.
10.2 WAIVER OF TRIAL BY JURY. THE SUPPLIER AND NTL WAIVE THE RIGHT
TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING UNDER THIS
AGREEMENT OR ANY
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ACTION OR PROCEEDING ARISING OUT OF THE TRANSACTIONS
CONTEMPLATED HEREBY, REGARDLESS OF WHICH PARTY INITIATES
ANY SUCH ACTION OR PROCEEDING.
10.3 This Agreement and all Purchase Orders shall be governed by
the laws of the State of California, without application of
conflict of law rules. The Vienna International Convention for
the Sale of Goods shall not apply.
11. GENERAL
11.1 Any notice to be given under the Agreement must be in writing
and may either be delivered by hand or sent by prepaid post to
the appropriate "Authorized Representative" or "Procurement
Administrator" at the address given in Schedule 7.
11.2 Nothing in this Agreement shall prevent either Party from
entering ,into other supply and/or marketing arrangements with
third parties for similar Goods and Services except as
specified in Schedule 9 or in a manner which otherwise
conflicts with the rights granted to the Purchaser under
sub-clause 11.1 of Schedule 1.
11.3 No claim or right arising out of breach of the Agreement by
either party may be discharged in whole or in part by any
waiver or renunciation of the claim or right unless such
waiver or renunciation is in writing, signed by the other
party.
11.4 Neither party may novate or assign this Agreement or any of
its rights benefits or obligations arising thereunder without
the prior written consent of the other party, except that
either party may assign and delegate all of is rights and
obligations hereunder in conjunction with a sale of all or
substantially all of it business or assets to which the
Agreement relates, and that Supplier may assign this Agreement
to a Supplier Affiliate provided that Supplier shall remain
liable for its obligations hereunder.
11.5 EXCEPT FOR INDEMNIFICATION UNDER SCHEDULE 1, SECTION 19 (FOR
WHICH LIABILITY IS ADDRESSED IN SECTION 19.7) OK WILLFUL
BREACH OF CLAUSE 7, IN NO EVENT SHALL EITHER PARTY'S LIABILITY
ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE NET
AMOUNTS PAID OR OWED BY PURCHASER TO SUPPLER HEREUNDER DURING
THE PREVIOUS TWELVE MONTHS. IN NO EVENT SHALL EITHER PARTY BE
LIABLE HEREUNDER, WHETHER IN CONTRACT, TORT (INCLUDING
NEGLIGENCE) OR OTHERWISE FOR ANY FORM OF INDIRECT OR
CONSEQUENTIAL LOSS, INCLUDING BUT NOT LIMITED TO, LOSS
(WHETHER DIRECT OR INDIRECT) OK USE, PRODUCTION, BUSINESS,
ANTICIPATED SAVINGS, INCOME OR PROFITS EVEN IF SUCH LOSS WAS
REASONABLY FORESEEABLE OR IF SUCH PARTY HAD BEEN ADVISED OF
THE POSSIBILITY OF THE OTHER PARTY INCURRING THE SAME.
SCHEDULE 1 TERMS AND CONDITIONS FOR SUPPLY
SCHEDULE 2 PRICES
PAGE 8 OF 58
SCHEDULE 3 SPECIFICATIONS
SCHEDULE 4 SUPPORT REQUIREMENTS
SCHEDULE 5 TRAINING PROGRAMS
SCHEDULE 6 QUALITY REQUIREMENTS
SCHEDULE 7 ORDERING AND BILLING DETAILS
SCHEDULE 8 ESCROW
SCHEDULE 9 PURCHASING BASELINE AND EXCLUSIVITIES
SCHEDULE 10 PRODUCT DESCRIPTIONS
PAGE 9 OF 58
IN WITNESS WHEREOF the Parties have entered into this Agreement the day and year
first above written
SIGNED BY
a duly authorized person on
behalf of Northern Telecom Limited
Signature } /s/: Xxxxx Xxxxxxxx
-----------------------
Name }XXXXX X. XXXXXXXX
------------------------
Position }MANAGER M & A
------------------------
Signature }
-----------------------
Name }
-----------------------
Position }
-----------------------
SIGNED BY
a duly authorized person on
behalf of interWAVE Communications International
Signature }/s/: xxxx
------------------------
Name }XXXXXX X. XXXXX
------------------------
Position }Sr. VP CFO
------------------------
PAGE 10 OF 58
SCHEDULE 1
TERMS AND CONDITIONS FOR SUPPLY
CONTENTS PAGE
1. DEFINITIONS...........................................................................................................12
2. STANDARD AND SCOPE OF WORK............................................................................................12
3. PURCHASER SUPPLIED ITEMS..............................................................................................12
4. DELIVERY..............................................................................................................13
5. QUALITY ASSURANCE.....................................................................................................14
6. REGULATORY COMPLIANCE.................................................................................................14
7. INSPECTION, ACCEPTANCE AND REJECTION..................................................................................15
8. ACCESS................................................................................................................16
9. PAYMENT ..............................................................................................................16
10. TITLE AND RISK.......................................................................................................17
11. LICENSES - GENERAL...................................................................................................17
12. SOFTWARE LICENSE RIGHTS..............................................................................................18
13. BADGING..............................................................................................................18
14. VARIATIONS...........................................................................................................18
15. GUARANTEE............................................................................................................19
16. DELAYS...............................................................................................................23
17. TERMINATION..........................................................................................................23
18. CANCELLATION.........................................................................................................23
19. INTELLECTUAL PROPERTY................................................................................................24
20. INDEMNIFICATION AND INSURANCE........................................................................................25
21. CONFIDENTIALITY......................................................................................................25
22. FORCE MAJEURE........................................................................................................25
23. PROPRIETARY NOTICES..................................................................................................26
24. RECOVERY OF SUMS DUE.................................................................................................26
25. GENERAL..............................................................................................................26
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1. DEFINITIONS
In addition to the definitions detailed in Clause 1 of the Agreement,
the following definitions shall apply to the Purchase Order:
a) "Acceptance" shall mean that the Goods or part thereof have
been completed in accordance with the terms of the Purchase
Order and to the satisfaction of the Purchaser.
b) "Acceptance Tests" shall mean the inspection and testing,
including field testing, to be carried out by the Purchaser to
establish that the Goods have been completed in accordance
with the Purchase Order. The inspection and testing to be
carried out are detailed in the Acceptance Test Specification,
identified in Schedule 3, and/or such other tests as may be
agreed in writing between the Purchaser and the Supplier.
c) "Design Defect" shall mean a defect inherent in the design or
manufacture of the Goods.
d) "Factory Tests" shall mean the inspection and testing of
Goods, to be carried out by the Supplier at his works prior to
shipment, in accordance with the Factory Test Specification
identified in Schedule 3.
2. STANDARD AND SCOPE OF WORK
2.1 Goods and Services shall be supplied in accordance with the
Specification(s) and Schedules of the Agreement and any other
requirements as may be agreed in writing by the parties .
2.2 The Supplier shall use good quality materials, techniques and
standards and execute the Purchase Order with the care, skill
and diligence required in accordance with best engineering and
telecommunications practice and the provisions of this
agreement.
3. PURCHASER SUPPLIED ITEMS
All property issued (hereinafter referred to as "Issued Property") by
the Purchaser to the Supplier under the Purchase Order shall be subject
to the following:
3.1 Title in Issued Property shall remain at all times with the
Purchaser;
3.2 Issued Property shall be used solely for the purpose of
carrying out the requirements of the Purchase Order, and
3.3 Issued Property shall be at the risk of the Supplier from
delivery to the Supplier's site or other premises, as agreed,
until the Issued Property is returned to the Purchaser in
accordance with 3.3.1 or 3.3.2, as appropriate.
3.3.1 Where Issued Property is embedded in or combined with
the Goods, risk in such Issued Property shall revert
to the Purchaser when such Issued Property has been
delivered to the Purchaser in accordance with the
Purchase Order.
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3.3.2 Any issued Property not used by the Supplier for
his performance of the Purchase Order shall be
returned to the Purchaser within fourteen (14) days
of completion of the Purchase Order, in good
condition and at the Supplier's expense.
3.4 Unless the Supplier advises the Purchaser to the contrary
within five (5) days of receiving Issued Property, such Issued
Property shall be deemed to have been delivered to the
Supplier in a satisfactory condition and be fit for the
purpose detailed in the Purchase Order.
3.5 While Issued Property is at the risk of the Supplier in
accordance with sub-clause 3.3, the Supplier shall maintain
adequate insurance policies to cover such risk. On request, by
the Purchaser, the Supplier shall provide evidence that such
insurance is in effect. Where the Supplier cannot demonstrate,
to the reasonable satisfaction of the Purchaser, the existence
of such insurance, the Purchaser shall have the right to
effect such insurance as may be necessary. The cost of such
insurance shall be for the Supplier's account.
3.6 While in the Supplier's custody, the Goods shall be clearly
marked as the property of the Purchaser. The Purchaser shall
be permitted access to the Supplier's. premises at any time to
inspect and/or remove Issued Property.
4. DELIVERY
4.1 The Goods and Services are to be supplied/performed in
accordance with the time scales stated on the Purchase Order
and consistent with the time frames and lead times of Clause 4
of Schedule 2 in the provisions of this agreement.
4.2 The Goods and Services shall be delivered to or performed at
the address(es) stated on the Purchase Order. No shipments
shall be made to such address(es) without the prior
notification of the Purchaser.
4.3 The Supplier shall:
4.3.1 package the Goods in such a manner to ensure their
delivery undamaged to the delivery address(es). Each
package shall be clearly marked with the Purchaser's
name, delivery address and the number of packages;
and
4.3.2 supply an advice note showing the Purchase Order
number, the Purchaser's part number, quantity
delivered, number of packages, method and route of
transportation to the Purchasers "Goods-In Receiving
Office". One copy of such advice note shall accompany
the Goods on delivery.
4.4 The Supplier shall give the Purchaser such prior written
notice as the Purchaser may require of delivery of Goods or
any other items having a toxic hazard or other hazard to the
safety or health of persons or property. Such notice shall
identify the hazards and give full details of any precautions
to be taken by the Purchaser on receipt of such Goods or other
items and their appropriate storage or handling requirements.
PAGE 13 OF 58
4.5 The Supplier shall notify the Purchaser immediately where any
event occurs that will or is likely to delay delivery of the
Goods or performance of Services. Such notification shall
include details of the Supplier's recovery plan to remedy the
delay. The submission of such notification shall not release
the Supplier from the performance of its obligations under the
Purchase Order.
5. QUALITY ASSURANCE
The Supplier shall comply with the quality requirements detailed in Schedule 6
of the Agreement.
6. REGULATORY COMPLIANCE
6.1 To the extent applicable all Goods delivered to Purchaser or
Affiliate-under this Agreement shall:
a) be approved and listed and listed as authorized to
bear the CE Xxxx certifying the product as meeting
all safety and emissions standards as required for
the equipment;
b) be verified, accepted and approved by Underwriter's
Laboratories ("U.L") and in compliance with Class B
under part 15 and other applicable limits under part
24 of the Regulations of the U.S. Federal
Communications Commission.
6.2 To the extent applicable, all user manuals or other operator
manuals and/or written material supplied with the Products
shall contain any appropriate warning notices.
6.3 Supplier agrees it shall ship no Goods prior to issuance of
the approvals set forth in sub-clause 6.1 or those identified
in 6.4 without the prior written consent of the Purchaser or
its Affiliate.
6.4 Both parties agree to the following steps to determine if all
necessary approvals have been issued by the appropriate
agencies before committing to delivery.
6.4.1 Supplier shall provide to Purchaser a list of
regulatory/compliance approvals it has received. This
list will be updated on a quarterly basis.
6.4.2 Purchaser shall identify and provide to Supplier
information on the nature and scope of additional
regulatory/compliance approvals required to pursue an
opportunity within 30 days after the country specific
requirement appears in the 12 month forecast
Based upon the information in sub-clause 6.4.2 the Parties will agree
to do one of the following.
6.4.2.1 Supplier may agree to obtain regulatory plus
government approvals within 120 days of the
initial notification stated in sub-clause
6.4.2. Supplier must confirm its intentions
to do so within 30 days after receipt of a
written request. If Supplier agrees to
obtain the necessary approvals it must
provide to Purchaser written verification of
such approvals within the 90 day period
after has stated its intentions to do so.
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6.4.2.2 If Supplier declines to obtain such
approvals, the Purchaser may agree to obtain
the necessary approvals and Purchaser shall
be compensated for its out-of-pocket costs
by the Supplier after obtaining such
approval.
6.4.2.3 If both Purchaser and Supplier decline to
obtain such approvals ,the Purchaser's
volume commitment shall be reduced by the
dollar amount of the forecast for the
affected countries.
7. INSPECTION, ACCEPTANCE AND REJECTION
7.1 Factory Inspection and Testing
7.1.1 Prior to shipment, all Goods shall be subject to
Factory Tests.
7.1.2 The Purchaser shall make a request to the Supplier to
attend and witness Factory Testing of Goods five (5)
days prior to the commencement of Factory Tests, if
the Purchaser so desires. If the Purchaser fails to
attend Factory Tests, the Supplier shall nevertheless
carry out Factory Tests, the results of which shall
accompany the Goods when delivery takes place, unless
otherwise agreed.
7.1.3 Without prejudice to the Supplier's obligations to
deliver Goods by the due date(s), Goods shall not be
shipped to the Purchaser until they have successfully
completed all Factory Tests.
7.2 Inspection and Testing after Delivery
7.2.1 Goods shall, at the Purchaser's discretion be subject
to Acceptance Tests by the Purchaser after delivery.
On successful completion of the Acceptance Tests, the
Purchaser will, subject to 7.2.2, issue to the
Supplier a certificate of "Acceptance" which shall
detail the date the Acceptance Tests were
successfully completed or commercial service
whichever is first.
7.2.2 Where Goods do not successfully complete the
Acceptance Tests, the Purchaser will issue within two
(2) days of completion of Acceptance Tests to the
Supplier, a notice of rejection which shall detail
the faults complained of. The Supplier shall:
- within a period of fifteen (15) days,
immediately following notification, remedy
such faults.
7.2.3 The Purchaser in accordance with sub-clause 7.2.2
shall be subject to repeat Acceptance Tests.
7.2.4 Where the Supplier fails to remedy faults within the
period detailed in 7.2.2, the Purchaser shall without
prejudice to any other rights or remedies, have the
option to either:
PAGE 15 OF 58
- extend the period for remedy of faults by
the Supplier, or
- remedy the faults, or have the faults
remedied by a third party and recover from
the Supplier any costs and expenses recurred
in so doing with prior notification from the
Purchaser. Remedy of faults under this
clause shall not invalidate the guarantee
given under Clause 15.
7.2.5 In the event that neither the Supplier nor the
Purchaser chooses to remedy the faults, the Purchaser
shall be allowed to cancel that portion of the
Purchase Order that relates to the faulty Goods.
8. ACCESS
8.1 The Purchaser, and if required its Customer, shall be
permitted to enter the Supplier's premises, at any reasonable
time, for any purpose in connection with the Purchase Order,
provided that the Purchaser gives to the Supplier at least two
(2) working days prior written notice.
8.2 The Supplier shall make best efforts possible to ensure that
any sub-contracts relating to the Purchase Order permit
similar access rights to the sub-contractor's premises for the
Purchaser's and, if required, its Customer's personnel.
9. PAYMENT
9.1 The Supplier may submit invoices for payment to the Purchaser:
9.1.1 for Goods based upon the following schedule
30% on Order
50% on Shipment
20% payment of invoice due upon the earlier of:
- completion of the Acceptance Tests, or
- Goods in commercial service, or
- 120 days after shipment where the Goods have
not been rejected or returned in accordance
with sub-clause 7.2.2. in Schedule 1.
9.1.2 for spares; on shipment; or
9.1.3 ten (10) days after shipment of documentation
conforming to the requirements of this Agreement; or
9.1.4 for training; on completion of the training course;
or
9.1.5 unless otherwise agreed, monthly in arrears for the
provision of engineering/installation services; or
PAGE 16 OF 58
9.1.6 quarterly in advance for the provision of Technical
Support.
9.1.7 for Shortfall Payments at the end of the
corresponding quarter as per Schedule 9.
9.2 Payment of valid invoices is due within 45 days of date of
invoice by the Purchaser.
9.3 Invoices must be submitted to the address detailed in
sub-clause 3.2 of Schedule 7 to the Agreement, quote the
Purchase Order number and detail the Goods and Services to
which they relate.
10. TITLE AND RISK
10.1 Title in Goods (excluding Software for which a license to use
will be granted in accordance with Clause 12) shall pass to
the Purchaser FOB Supplier's plant for shipments within the
United States and title in Goods for all other shipments shall
pass to the Purchaser at port of entry of the country
addressed on the Purchase Order.
10.2 Risk of loss or damage to the Goods shall pass according to
sub-clause 10.1. Where Goods are rejected in accordance with
sub-clause 7.2.2, risk in the Goods shall revert back to the
Supplier if rejected Goods are not remedied and re-delivered
in accordance with sub-clause 7.2.2.
11. LICENSES- GENERAL
11.1 It is acknowledged by the Supplier that procurement of Goods,
by the Purchaser, may be for direct or indirect re-sale
(including installation), lease or hire to Customers anywhere
in the world in accordance with 11.4.
11.2 In pursuance of 11.1, the Supplier hereby grants to the
Purchaser a non-exclusive, irrevocable, royalty free license
to:
11.2.1 use, lease, hire, sell (including installation) and
maintain Equipment anywhere in the world; and
11.2.2 use, copy and reproduce in whole or in part any
literature whatever relating to Goods for the
purposes of such lease, hire, maintenance and sale of
Goods anywhere in the world.
11.3 The Supplier warrants that it has the right to grant the
licenses detailed under Clause 11.2.
11.4 Purchaser shall have sole responsibility for ensuring that it
has obtained all necessary approvals and licenses from the
relevant export authorities prior to the delivery date for any
Purchase Order for delivery outside the United States, or
before re-exporting any Goods outside the United States. The
Supplier shall provide the information to assist the Purchaser
in obtaining necessary licenses for re-exportation of Goods to
any ultimate destination outside of the United States.
PAGE 17 OF 58
Further, the supplier shall provide such assistance as the
Purchaser may reasonably require to obtain import duty
relief for onward sale of Goods.
11.5 The Supplier undertakes, without delay, to notify the
Purchaser of any export restrictions that arise that may
affect the Purchaser's ability to maintain or offer for sale,
lease or hire Goods in a particular country. The Supplier
shall provide written notification to the Purchaser
immediately after cessation of such export restrictions.
12. SOFTWARE LICENSE RIGHTS
12.1 Where Software is supplied under the Purchase Order whether
incorporated in any Equipment or otherwise, then without
prejudice to any other licenses or rights granted to the
Purchaser under the Purchase Order, the Supplier hereby grants
to the Purchaser a non-exclusive, irrevocable, royalty free
license to use, sell, lease, hire, install repair, maintain
and/or dispose of the Software anywhere in the world. Such
license shall include the right for the Purchaser to
sub-license the Software directly or indirectly on
substantially the same terms to Customers and the right to:
12.1.1 use the Software for the purpose of training,
operating networks, maintaining and supporting
Customer's telecommunications networks and making
copies for back-up purposes;
12.1.2 modify documentation provided to the Purchaser and
distribute such modified documentation directly or
indirectly to Customer's.
12.2 The Supplier confirms that it has full right and title to
grant to the Purchaser the Software license rights included
under this Clause 12.
12.3 The provisions of this Clause 12 shall survive the expiry or
termination of the Purchase Order..
13. BADGING
13.1 The Purchaser shall sell or sub-license Goods under the
Northern Telecom name or for that of its Customer(s), with
prior written consent of the Supplier, which is not to be
unreasonably withheld. If requested, by the Purchaser, the
Supplier shall supply Goods complete with the appropriate logo
affixed to the Goods.
13.2 Where the Purchaser exercises its rights under sub-clause
13.1, the Purchaser shall provide details of the logo and
positioning not later than three (3) weeks prior to the due
date for delivery.
14. Variations
14.1 The Purchaser shall make every effort to place Purchase Orders
in accord with this agreement. In the event of unusual
circumstances, the Purchaser may request the Supplier to make
modifications to the Purchase Order. The Supplier shall make
best efforts to furnish details of the effect such Variation
will have on the Goods and Services within ten (10) days of
receipt of the Purchaser's request or such other period as may
be agreed.
PAGE 18 OF 58
14.2 Where the Supplier shows that a Variation in accordance with
sub-clause 14. 1 involves a change in the cost or time scales
for the Goods and/or Services, the Supplier shall use best
efforts to keep the change to the time scales and extra costs
or savings arising from the Variation reasonable. The
provisions of Schedule 2 of the Agreement sub-clause 3.2 shall
apply.
14.3 The Supplier shall not vary the Goods and Services to be
supplied under the Purchase Order in any respect unless
instructed in writing to do so by the Purchaser and so long as
the variations still conform with and are included in this
Agreement.
15. GUARANTEE
15.1 If during a period of sixteen (16) months from shipment
acceptance or during the "Guarantee Period", the Supplier is
notified of a material defect in the Goods that is due to
faulty design, manufacture, materials, workmanship, inadequate
performance against Specification or the negligence of the
Supplier, the Supplier shall, at the Supplier's option,
correct, modify, repair or replace the Goods at the Supplier's
expense. Such correction, modification, repair or replacement
shall be carried out:
- for Equipment; within a period of thirty (30) days of
return of the Equipment to the Supplier's works; and
- for Software; within the time scales detailed in
Schedule 4, Clause 4.2, appropriate to the category
of defect; and
- the parties agree to make their best effort to work
together to reduce the above lead time in the future.
15.2 All Goods shall be marked (in a manner to be agreed by the
Purchaser) with a date code which corresponds to the date that
the Equipment was finished being Factory Tested at the
Supplier's works.
15.3 All Goods corrected, modified, repaired or replaced in
accordance with sub-clause 15.1 shall from the date of
shipment of the repaid Equipment to the Customer site, be
re-warranted for the remainder of the original Guarantee
Period or for a period of seven (7) calendar months, whichever
is the longer.
15.4 If any defect notified in accordance with sub-clause 15.1 is
not remedied within the period specified, the Purchaser may,
without prejudice to its other rights and remedies in respect
of the Supplier's failure to remedy such defect, proceed to do
the work at the Supplier's risk and expense with the
Supplier's prior approval. Remedy of defects under this
sub-clause 15.4 shall not invalidate the guarantee given under
sub-clause 15. 1.
15.5 Equipment Deficiency and Product Change Notices
Supplier may, at any time, make Class A, Class B or Class D
product changes to the Equipment or modify the drawings and
specifications relating thereto (hereinafter referred to as
"Product Change"), provided that any such Product Change, does
not affect form, fit or function of the
PAGE 19 OF 58
Equipment or the interchangeability of the Equipment with
other Equipment, or with spare parts, and that Supplier
notifies the Purchaser in writing thereof as soon as
practicable. In the event any Product Change affect form, fit
or function or interchangeability of the Products, Supplier
shall notify the Purchaser in writing thereof prior to any
planned changes 120 days in advance, except Class D Changes -
non Customer Affecting, and if such change adversely affects
Purchaser or its Customers, Purchaser may reject such Product
Change. In the event the Purchaser rejects the planned change
and so notifies Supplier within ten (10) days and Supplier
fails to reach agreement thereon, the Purchaser shall have the
right to terminate any and all orders, in whole or in part,
for the Equipment affected by such change. Notwithstanding any
notice requirement above to the contrary, Supplier shall
immediately notify the Purchaser when it determines that a
Class A Product Change (as defined hereinafter) shall be made.
Supplier shall be authorized to make Class A Product Changes
as soon as practical.
15.5.1 Class A Product Change
Class A Product Changes are changes required to
correct an Equipment deficiency (e.g., safety or fire
hazard, electrically or mechanically inoperative,
unsatisfactory operation, design defects, Equipment
does not operate as specified). If after at least 750
units of a board or equipment are in service, the
monthly board or equipment failure rate (Number of
board or equipment returned within a month/Total
Number of board or equipment in service), as
specified by the Purchaser's trouble tickets,
averages higher than 2% over a three (3) month
period, a Class A Product Change will be required.
The number of board or equipment failures shall not
include the number of "No Fault Founds" or any
failures due to improper operation, handling or
maintenance as described in the Supplier's relevant
Equipment documentation. Class A Product Changes
require immediate action by Supplier to correct all
affected Equipment, whether in the hands of Supplier
or the Purchaser or their Customers including spare
Products. In some cases, however, it may be necessary
to make a change to only a limited number of a
particular type of Equipment. (This occurs when it is
necessary to correct a condition that occurs only in
certain Equipment combinations or with the use of
certain options). Such conditions shall be described
in the Product Change Notice.
Supplier shall, no later than thirty (30) days from
the date of the notification of a Class A Product
Change, provide a schedule, acceptable to the
Purchaser for promptly implementing, at Supplier's
expense, such changes with respect to the Equipment
in the Purchaser's or their Customer's possession.
Such implementation shall include the
de-installation, if necessary, of existing Equipment
and the engineering and installation of replacement
or modified Equipment or any additional materials.
The Guaranty period for redesigned Equipment will be
twelve (12) calendar months from the date of shipment
and for repaired Equipment seven (7) calendar months
from date of shipment.
15.5.2 Class B Product Change
Class B Product Changes ere changes are made to
incorporate improvements in design resulting in
better operation, improved testing, better
maintenance, longer life, service
PAGE 20 OF 58
improvements, cost reductions, new features, and the
like.
All Equipment shipped to the Purchaser after the
effective date of any Class B Product Change shall
incorporate such change. Any Equipment shipped to the
Purchaser prior to such date may be modified by the
Purchaser at its option and expense.
No Class B changes shall effect interoperability of
the Equipment.
15.5.3 Class D Product Change
Class D Product Changes are design improvements,
component changes, or other minor improvements not
sufficiently significant as to require a Class B
classification. Class D Product Changes are also used
when a change is required to facilitate manufacture
or to effect a cost reduction not sufficiently
important to justify a Class B classification.
No Class D changes shall effect the interoperability
of the Equipment.
15.5.4 Notices
Supplier shall furnish monthly status reports to the
Purchaser for all Class A Product Changes of which
Supplier has notified the Purchaser. This report
shall contain the following information:
- Product Change Notice Number
- Identity of the Equipment
- Model or part number and issue
- Date Product Change Notice issued
- Equipment ship date
- Installation or application responsibility
- Locations at which change is to be made (to
be supplied by the Purchaser)
- Date completed, by location - Changes on
hold at any location
Supplier shall furnish in accordance with the
"Notices" sub-clause a quarterly report listing all
Product Change Notices released during the previous
twelve (12) months. This report will contain the
following information: (a) Product Change Notice
Number, (b) Issue Date of Change, (c) Drawing Number,
(d) Change Classification, and (e) Modification
Expiration Date. Supplier will provide the Purchaser
a copy of all change notices as soon as they become
available.
Notwithstanding any notice requirements to the
contrary elsewhere in this Agreement, all Class A
Product Change Notices shall be provided, at no
charge, and forwarded in accordance with the
sub-clause titled "Notices". Product Change Notices
shall contain all the information set forth in
Notices. If Supplier cancels a Product Change Notice,
Supplier must provide notification in accordance with
clause tide "Notices" hereto and state the reason for
cancellation and what action, if any, is to be taken
in locations where the change may already have been
implemented.
PAGE 21 OF 58
Supplier shall determine the classification per the
requirements of Bellcore Technical Requirement
Document TR-OPT-000209 or any successor document
agreed to between the Parties of any proposed Product
Change. If the Purchaser disagrees with any
classification assigned by Supplier, the Purchaser
shall have the right to challenge such
classification, and Supplier shall, in good faith,
re-evaluate its classification. In the event that the
Purchaser and Supplier fail to reach agreement on any
such classification, then the Purchaser shall have
the right to terminate any or all Orders, in whole or
in part, for Equipment affected by such Product
Change without penalty or obligation of any kind
until this Agreement is reached.
15.6 The Supplier shall provide, Technical Support for the Goods as
detailed in Clause 4 of Schedule 4 to the Agreement,
throughout the Guarantee Period.
15.7 Guarantee Period Extension
The Purchaser may elect, at any time during the Guarantee
Period, to extend the Guarantee Period for such further period
or periods as detailed in Schedule 2. The price to paid by the
Purchaser for extending the Guarantee Period shall be as
detailed in Schedule 2.
15.8 EXCEPT FOR THE WARRANTIES SET FORTH IN THIS CLAUSE 15,
SUPPLIER HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER
EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT
LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY,
NONINFRINGEMENT OR FITNESS OR A PARTICULAR PURPOSE.
15.9 The provisions of sub-clauses 15.1-15.8 shall survive
termination of the Agreement and/or Purchase Order howsoever
caused.
15.10 The Supplier represents and warrants that the Software
contains no authorization strings, time limiting codes or any
other limiting codes that will disable the operation of the
Software.
15.11 The Supplier represents and warrants that, to the best of
Supplier's knowledge, the Software contains no computer
viruses or other contaminates programmed or installed in the
Software by Supplier, including but not limited to, any code
or instructions that may be used to damage, disable, or
compromise the security of any Purchaser products, Customer
networks or Purchaser computer systems or networks.
15.121 The Supplier represents and warrants that the Software shall
(i) process date and time related data without causing any
processing interruptions, abnormal terminations, or changes in
performance characteristics, and, (ii) shall process and
manipulate all date and time related functions correctly.
Without limiting the generality of the foregoing, all Software
shall:
- correctly handle date and time related data
before, during and after January 1, 2000,
including but not limited to accepting date and
time input, output, and performing ongoing
operations on dates and times and portions of
dates and times including, but not limited to,
calculating, comparing and sequencing of dates
and times (in both forward and backward
operations spanning century boundaries).
PAGE 22 OF 58
15.13 The supplier shall immediately notify the Purchaser of any
Software that is not in compliance with sub-clauses 15.10,
15.11, or 15.12 and shall correct such Software as set forth
in sub-clause 15.1.
16. DELAYS
16.1 Time shall be of the essence for the performance of the
Supplier's obligations under the Purchase Order, and the
Supplier shall make good faith efforts to meet dates specified
in the Purchase Order.
16.2 In the event that the Supplier fails to deliver Goods, the
Purchaser shall not be obligated to pay for any shortfalls and
shall be given relief against their commitments as described
in Schedule 9.
17. TERMINATION
Without prejudice to its other rights, either party shall have the
right forthwith to terminate a Purchase Order, in whole or in part, and
to claim for any resulting LOSSES or expenses if the other party:
- commits a breach of the Purchase Order and fails to remedy
the breach within 60 days of written notice from the
non-defaulting party indicating: (i) the nature and basis of
such default with reference to the applicable provisions of
this Agreement, and (ii) the non-defaulting party's intention
to terminate the Purchase Order under this Clause 17 if such
default continues; or
- commits any act of bankruptcy; or compounds with its
creditors; or a petition or receiving order in bankruptcy is
presented or made against the other party, or a petition for
an administration order is presented in relation to the other
party or a resolution or petition to wind up the other party
(otherwise than for a legal reconstruction or amalgamation) or
a receiver or administrative receiver is appointed; and such
act or petition is not cured, dismissed, or withdrawn within
60 days thereafter, or
- ceases to carry on business.
18. CANCELLATION
The Purchaser shall have the right to cancel any Purchase
Order for which the Purchaser provides to the Supplier written
notice of such a cancellation at least 90 days prior to the
requested delivery date in such Purchase Order. In addition,
the Purchaser shall have the right to reschedule any Purchase
Order to delay the delivery date by no more than 60 days after
the requested delivery date in such Purchase Order, provided
that the Purchaser provides to the Supplier written notice of
such rescheduling at least 45 days prior to the requested
delivery date in such Purchase Order. Any Purchase Order may
only be rescheduled once, and once rescheduled may not be
cancelled. Except as set forth in this Clause 18, the
Purchaser shall have no right to cancel or reschedule any
Purchase Order.
PAGE 23 OF 58
19.1 The Supplier shall indemnify and shall keep fully indemnified
the Purchaser against all actions, claims, proceedings,
damages, costs and expenses arising from any claim of
infringement, anywhere in the world, of any trade secret,
trademark, service xxxx, copyright, or patent arising solely
by reason of the Purchasers use, possession, re-sale, hire or
lease of Goods as provided by Supplier, as expressly
authorized in the Agreement. Notwithstanding the foregoing,
supplier assumes no liability for infringement claims related
to (i) the combination of Goods with other products not
provided by Supplier, if such infringement would have been
avoided by the use of such Goods alone, (ii) modification of
Goods after delivery by Supplier, or (iii) failure by
Purchaser, its employees, and agents after it becomes aware of
infringement to take all reasonable actions to prevent or
mitigate losses, damages, costs or expenses. Supplier shall
not be obligated to pay any liability, costs, or expenses
until finally adjudicated or settled without right of further
appeal.
19.2 Supplier's obligation to indemnify Purchaser under this Clause
19 shall be subject to Purchaser providing Supplier: (i)
prompt notice of the claim giving rise to the indemnity, (ii)
sole control and authority regarding the defense and
settlement of such claim; and (iii) all information and
assistance reasonably requested the Supplier in connection
with the defense and/or settlement of such claim. The Parties
shall immediately on becoming aware notify the other promptly
in writing of any infringement or alleged infringement
referred to in 19.1.
19.3 In the event of infringement as set forth in sub-clause 19.1,
the Supplier shall, at its own option and expense:
19.3.1 secure a license, the Supplier being responsible for
the payment of any and all royalty fees due or
becoming due, allowing the Purchaser use of the
infringing Goods and Services in and to exercise its
other rights granted under the Purchase Order and as
set out in the Agreement in respect of the Goods and
Services, provided that Purchaser agrees to cooperate
with Supplier and use all reasonable afforts to
assist Supplier; or
19.3.2 modify or replace the Goods and Services to avoid the
claim of infringement and any injunction or court
order, provided that such modification or replacement
does not affect materially performance of the Goods
and Services; or
19.3.3 if neither of the remedies in sub-clause 19.3.1 or
19.3.2 are reasonably practicable in Supplier's
reasonable judgement, Supplier may terminate this
Agreement and refund to Purchase the amounts paid for
the infringing Goods which cannot be used or sold due
to such infringement, depreciated on a five year
straight-line basis.
19.4 The copyright and all other intellectual property rights in
all documents, drawings and information supplied by the
Purchaser in connection with this Purchase Order shall remain
vested in the Purchaser. Such documents, drawings and
information shall not be copied, disclosed or used except in
the performance of Supplier's obligations and exercise of its
rights pursuant to this Agreement and other agreements between
Supplier and Purchaser without the prior written consent of
the Purchaser.
PAGE 24 OF 58
19.5 THE FOREGOING CLAUSE 19 STATES THE SOLE OBLIGATIONS OF
SUPPLIER AND THE SOLE AND EXCLUSIVE REMEDY OF PURCHASER FOR
ANY ACTUAL OR ALLEGED INTELLECTUAL PROPERTY INFRINGEMENT.
19.6 EXCEPT FOR INDEMNIFICATION HEREUNDER FOR WILLFUL TRADE SECRET
MISAPPROPRIATION OR WILLFUL COPYRIGHT INFRINGEMENT, IN NO
EVENT SHALL SUPPLIER'S LIABILITY AND OBLIGATION UNDER THIS
CLAUSE 19 EXCEED THE NET AMOUNTS PAID BY PURCHASER TO SUPPLIER
FOR THE INFRINGING SYSTEMS GIVING RISE TO SUCH LIABILITY.
20. INDEMNIFICATION AND INSURANCE
20.1 Each party (the "Indemnifying Party") shall indemnify and save
harmless the other party (the "Indemnified Party") from any
liability or claim (including, without limitation, the costs
and reasonable attorney's fees in connection therewith) that
may be made by a third party for injury, including death, to
persons or damage to property arising directly out of the
Indemnifying Party's negligent acts or omissions in connection
with such Indemnifying Party's performance of its obligations
or exercise of its rights under this Agreement provided that
the indemnified Party has no contributory fault in connection
with such liability or claim.
20.2 Without thereby limiting its responsibilities under the
Purchase Order Supplier shall maintain during its performance
under this Agreement General Liability Insurance, including
contractual, products liability and broad form vendors'
property damage endorsement with the limits of either
$5,000,000 combined single limit per occurrence for bodily
injury and property damage or $3,000,000 bodily injury per
occurrence and $2,000,000 property damage per occurrence.
Supplier must provide property insurance to cover all
consigned Purchaser material on Supplier's premises during the
term of the Agreement.
20.3 The Supplier shall supply to the Purchaser written evidence
that such cover is in force for the required period. On
receipt of the Purchaser's request, the Supplier shall provide
evidence that such insurance is in force. Where the Supplier
cannot demonstrate, to the reasonable satisfaction of the
Purchaser the existence of adequate insurance, the Purchaser
shall have the right to effect such insurance as may be
necessary. The cost of such insurance shall be for the
Supplier's account.
21. CONFIDENTIALITY
The provisions of Clause 7 of the Agreement shall similarly apply to
the Purchase Order(s).
22. FORCE MAJEURE
Except to obligations to pay money, (other than with respect to a
Purchase Order which is itself subject to an event of force majeure
declared by the Supplier), neither Party shall be liable for any breach
of the Purchase Order owing to any of the following causes, or any
similar causes, anywhere in the world, to the extent beyond its
reasonable control: Act of God, fire, industrial action or lock-outs
(except for industrial
PAGE 25 OF 58
action or lock-outs by the Supplier's employees), the act or omission
of Government, war, military operations or riot.
23. PROPRIETARY NOTICES
Purchaser agrees that all Goods and accompanying documentation shall
include re-productions of the copyright notices and other proprietary
legends of the supplier and its vendors. Purchaser shall not remove,
efface or obscure any such notice or legends without approval of
Supplier.
24. RECOVERY OF SUMS DUE
Whenever a sum of money due to one party from the other party, in
relation to the Purchase Order or otherwise, is not paid by the due
date, it may be deducted from any sum then due, or which at any time
thereafter may become due to the other party under the Purchase Order
or any other contract between the parties. Any sums due and not
recovered by such deductions may be recovered as a debt.
25. GENERAL
25.1 The invalidity or unenforceability for any reason of any
provision of the Purchase Order shall not prejudice or affect
the validity or enforceability of its other provisions.
25.2 The headings to these clauses are for reference only and shall
not affect their interpretation.
25.3 Any notice to be given under the Purchase Order must be in
writing and may be delivered by hand or sent by prepaid post
to the "authorized representative" at the address given in
Schedule 7.
25.4 No claim or right arising out of breach of the Purchase Order
by either party may be discharged in whole or in part by any
waiver or renunciation of the claim or right unless such
waiver or renunciation is in writing, signed by the other
party.
25.5 Neither party may novate or assign this Purchase Order or any
of its rights benefits or obligations arising thereunder
without the prior written consent of the other party, except
that either party may assign and delegate all of its rights
and obligations hereunder in conjunction with a sale of all or
substantially all of its business or assets to which this
Purchase Order relates.
25.6 The settlement of any dispute shall be done as per article 10
of the Agreement.
25.7 Supplier represents that it has the rights which herein are
granted to Purchaser to sell the Goods for resale throughout
the world (subject to any applicable export control
restrictions), and that Supplier has taken appropriate action
with any of its existing distributors of similar goods to
remove any restrictions which would impede the granting of
these rights to Purchaser.
PAGE 26 OF 58
SCHEDULE 2
PRICES AND PRODUCT DESCRIPTION
1. The prices detailed hereunder are firm and fixed for the calendar year
in which this Agreement commenced (the "Initial Period"). Sixty (60)
days prior to the expiration of the Initial Period, and each subsequent
twelve (12) month period the Parties shall review and agree upon the
prices that shall apply to Goods and Services for the next twelve (12)
month period. The prices listed below include warranty during the
Guarantee Period and technical support for 12 months.
The prices listed below are subject to amendments according to the
clauses below:
- As for the BSC and the NSS, the prices are applicable only for
a period of three months following the Signature of this
Agreement As soon as the configurations and functions of the
BSC and NSS are clarified by the Supplier, the prices of the
BSC and of the NSS will be adjusted for price coherence
between the functions provided by the BSC and the NSS and
between this equipment and the NSS/BSC functions integrated in
the Combo. This adjustment should not impact the price of the
Combo nor the aggregate prices.
- In the event that the market prices have substantially
decreased, the Purchaser may request good faith efforts from
the Supplier to re-negotiate prices accordingly. Such price
reduction will become effective for all following deliveries
to the Purchaser.
- The Purchaser will discuss with the Supplier any single
opportunity for the Supplier's Goods that is greater than
twenty (20) million (U.S.) dollars. In the event that the
single opportunity pricing is granted to the Purchaser by the
Supplier, it will not impact the OEM pricing at that time.
- For each of the calendar years, the Purchaser and Supplier
will use their best efforts to agree upon and execute an
amendment to this Agreement that sets forth the prices and
volume discounts applicable for such a calendar year. The
Supplier guarantees a minimum of 5% decrease of price for the
Products from one calendar year to the next.
- The prices listed will be subject to a volume discount
according to the table below:
------------------------------- -----------------------------
NUMBER OF TRX'S DISCOUNT*
------------------------------- -----------------------------
1 to 999 0%
------------------------------- -----------------------------
1000 to 1499 2%
------------------------------- -----------------------------
1500 to 1999 4%
------------------------------- -----------------------------
2000 and over 10%
------------------------------- -----------------------------
*These volume discounts do not apply to the WAVEView OMC-200 or its
associated software
- The Supplier represents to the Purchaser that the prices
listed herein for Goods and Services are no higher than those
charged by the Supplier to other parties who purchase similar
goods for resale (excluding exceptions for flexibility in
markets and for Customers Purchaser is not pursuing, and other
special circumstances on an agreed upon individual basis). At
the request of the Purchaser, Supplier shall internally review
its compliance with this requirement on an annual calendar
year basis and shall credit any overcharge to the Purchaser in
accordance with Schedule 1, Clause 24. In
PAGE 27 OF 58
any event, the Purchaser shall receive a minimum sixty-five (65) %
discount off the Supplier then current list prices.
1.1 PRICES FOR GOODS
-------------------------------------------------------------- -------------------------------- ----------------------------------
DESCRIPTION OF GOODS PART NUMBER PRICE (US$)
-------------------------------------------------------------- -------------------------------- ----------------------------------
WAVEXpress 1-TRX BTS (900MHz) M5120N 10,500
-------------------------------------------------------------- -------------------------------- ----------------------------------
WAVEXpress 2-'TRX BTS (900MHz) M5220N 15,750
-------------------------------------------------------------- -------------------------------- ----------------------------------
WAVEXpress 3-TRX BTS (900MHz) M5320N 23,625
-------------------------------------------------------------- -------------------------------- ----------------------------------
WAVEXpress 1-TRX BTS (1800MHz) M5122N 10,500
-------------------------------------------------------------- -------------------------------- ----------------------------------
WAVEXpress 2-TRX BTS (1800MHz) M5222N 15,750
-------------------------------------------------------------- -------------------------------- ----------------------------------
WAVEXpress 3-TRX BTS (1800MHz) M5322N 23,625
-------------------------------------------------------------- -------------------------------- ----------------------------------
WAVEXpress 1-TRX BTS (1900MHz) N/A N/A
-------------------------------------------------------------- -------------------------------- ----------------------------------
WAVEXpress 2-TRX BTS (1900MHz) N/A N/A
-------------------------------------------------------------- -------------------------------- ----------------------------------
WAVEXpress 3-TRX BTS (1900MHz) N/A N/A
-------------------------------------------------------------- -------------------------------- ----------------------------------
TurboWAVE 4 Watt(900 MHz) M640154N 4,200
-------------------------------------------------------------- -------------------------------- ----------------------------------
TurboWAVE 8 Watt(900 MHz) M640157N 4,200
-------------------------------------------------------------- -------------------------------- ----------------------------------
TurboWAVE 16 Watt(900 MHz) M640158N 8,925
-------------------------------------------------------------- -------------------------------- ----------------------------------
TurboWAVE 4 Watt (1800 MHz) M648154N 4,200
-------------------------------------------------------------- -------------------------------- ----------------------------------
TurboWAVE 8 Watt (1800 MHz) M648157N 4,200
-------------------------------------------------------------- -------------------------------- ----------------------------------
TurboWAVE 16 Watt (1800 MHz) M648158N 8,925
-------------------------------------------------------------- -------------------------------- ----------------------------------
TurboWAVE 4 Watt (1900 MHz) NIA N/A
-------------------------------------------------------------- -------------------------------- ----------------------------------
TurboWAVE 8 Watt (1900 MHz) N/A N/A
-------------------------------------------------------------- -------------------------------- ----------------------------------
TurboWAVE 6 Watt (1900 MHz) N/A N/A
-------------------------------------------------------------- -------------------------------- ----------------------------------
WAVEXpress BSC-30 M5030N 24,850
-------------------------------------------------------------- -------------------------------- ----------------------------------
Combo 1-TRX (900 MHz) M5131N 14,335
-------------------------------------------------------------- -------------------------------- ----------------------------------
Combo 2-TRX (900 MHz) M5132N 19,590
-------------------------------------------------------------- -------------------------------- ----------------------------------
Combo 1-TRX (1800 MHz) M5831N 14,335
-------------------------------------------------------------- -------------------------------- ----------------------------------
Combo 1-TRX (1800 MHz) M5832N 19,590
-------------------------------------------------------------- -------------------------------- ----------------------------------
Combo 1-TRX (1900 MHz) N/A N/A
-------------------------------------------------------------- -------------------------------- ----------------------------------
Combo 2-TRX (1900 MHz) N/A N/A
-------------------------------------------------------------- -------------------------------- ----------------------------------
XXXXXxxxxxx XXX X0000X 40,645
-------------------------------------------------------------- -------------------------------- ----------------------------------
XXXXXxxx,XXX-000 X0000XX 23,670
-------------------------------------------------------------- -------------------------------- ----------------------------------
-------------------------------------------------------------- -------------------------------- ----------------------------------
Combo S/W - 1 TRX S500200N 7,350
-------------------------------------------------------------- -------------------------------- ----------------------------------
Combo S/W - 2 TRX S500300N 13,125
-------------------------------------------------------------- -------------------------------- ----------------------------------
WAVEXchange NSS S/W- Base S500400N 11,025
-------------------------------------------------------------- -------------------------------- ----------------------------------
WAVEXchange NSS S/W- Base S500500N 3,675
-------------------------------------------------------------- -------------------------------- ----------------------------------
WAVEView,OMC-200 S/W - Base S500600N 11,025
-------------------------------------------------------------- -------------------------------- ----------------------------------
WAVEView,OMC-200 S/W - per TRX (not to exceed $70k/ OMC) S500700N 735
-------------------------------------------------------------- -------------------------------- ----------------------------------
PAGE 28 OF 58
1.2 PRICES FOR ENGINEERING SERVICES
EMERGENCY CALL OUT SERVICES *
BASE RATES
EMERGENCY CALL OUT Standard Weeknights Nights/Weekends Sundays/Holidays
8am-5pm 5pm-11pm 11pm-8am
Junior Engineer $ 90 $110 $125 $150
Engineer $110 $130 $150 $185
Sr. Engineer/Spec. $150 $180 $185 $250
Project Manager $190 $225 $250 $315
Purchaser will be offered a discount of 30% from these rates
for these rates during the first year of the agreement. These
rates are subject to a six month adjustment based upon good
faith negotiations, and an agreed to, price escalation
table(s).
*Rates do not include transportation, nor a Per Diem for food
and lodging, nor out-of-pocket expenses for personnel
rendering such services.
1.3 PRICES FOR SPARES
--------------------------------- ------------------------------------------------------ --------------------------------
Part Number Description of Field Replaceable Unit Spares Price (US$)
--------------------------------- ------------------------------------------------------ --------------------------------
M340220 Clock, 13MHz 1,370
--------------------------------- ------------------------------------------------------ --------------------------------
M340014 E-l, Long Haul, 2 Port 5,670
--------------------------------- ------------------------------------------------------ --------------------------------
M340098 E-1 with 2 TRAUS 8,400
--------------------------------- ------------------------------------------------------ --------------------------------
M340121 IWP 3,970
--------------------------------- ------------------------------------------------------ --------------------------------
M640034 Power supply 350W, Hi24, 115v AC 1,370
--------------------------------- ------------------------------------------------------ --------------------------------
M640035 Power supply 350W, Hi24, 230v AC 1,370
--------------------------------- ------------------------------------------------------ --------------------------------
M640026 Power supply 350W, Hi24, -48V DC 1,370
--------------------------------- ------------------------------------------------------ --------------------------------
M640027 Power Supply 50A, 115V AC 1,660
--------------------------------- ------------------------------------------------------ --------------------------------
M640028 Power Supply 50A, 230V AC 1,660
--------------------------------- ------------------------------------------------------ --------------------------------
M340063 RF Distribution 900 MHz 3,150
--------------------------------- ------------------------------------------------------ --------------------------------
M340088 RF Distribution 1800 MHz 3,150
--------------------------------- ------------------------------------------------------ --------------------------------
X/X XX Xxxxxxxxxxxx 0000 XXx X/X
--------------------------------- ------------------------------------------------------ --------------------------------
M640116 TRX 900 MHz 7,875
--------------------------------- ------------------------------------------------------ --------------------------------
M640117 TRX 1800 MHz 7,875
--------------------------------- ------------------------------------------------------ --------------------------------
N/A TRX 1900 MHz N/A
--------------------------------- ------------------------------------------------------ --------------------------------
M640025 Fan, 12V Power Supply 450
--------------------------------- ------------------------------------------------------ --------------------------------
M640021 Cable kit, full set, indoor 450
--------------------------------- ------------------------------------------------------ --------------------------------
M640048 WAVEXpress Chassis 1,850
--------------------------------- ------------------------------------------------------ --------------------------------
PAGE 29 OF 58
1.4 Prices for Post Guarantee Repair Service
--------------------------------- ------------------------------------------------------ ----------------------------------
Part Number Description of Field Replaceable Unit Repair Price (US$)
--------------------------------- ------------------------------------------------------ ----------------------------------
M340220 Clock, 13MHz 600
--------------------------------- ------------------------------------------------------ ----------------------------------
M340014 E-l, Long Haul, 2 Port 1,900
--------------------------------- ------------------------------------------------------ ----------------------------------
M340098 E-1 with 2 TRAUS 3,200
--------------------------------- ------------------------------------------------------ ----------------------------------
M340121 IWP 1,300
--------------------------------- ------------------------------------------------------ ----------------------------------
M640034 Power supply 350W, Hi24, 115v AC 450
--------------------------------- ------------------------------------------------------ ----------------------------------
M640035 Power supply 350W, Hi24, 230v AC 450
--------------------------------- ------------------------------------------------------ ----------------------------------
M640026 Power supply 350W, Hi24, -48V DC 450
--------------------------------- ------------------------------------------------------ ----------------------------------
M640027 Power Supply 50A, 115V AC 500
--------------------------------- ------------------------------------------------------ ----------------------------------
M640028 Power Supply 50A, 230V AC 500
--------------------------------- ------------------------------------------------------ ----------------------------------
M340063 RF Distribution 900 MHz 350
--------------------------------- ------------------------------------------------------ ----------------------------------
M340088 RF Distribution 1800 MHz 350
--------------------------------- ------------------------------------------------------ ----------------------------------
X/X XX Xxxxxxxxxxxx 0000 XXx X/X
--------------------------------- ------------------------------------------------------ ----------------------------------
M640116 TRX 900 MHz 2,500
--------------------------------- ------------------------------------------------------ ----------------------------------
M640117 TRX 1800 MHz 2,500
--------------------------------- ------------------------------------------------------ ----------------------------------
N/A TRX 1900 MHz N/A
--------------------------------- ------------------------------------------------------ ----------------------------------
M640025 Fan, 12V Power Supply N/A
--------------------------------- ------------------------------------------------------ ----------------------------------
M640021 Cable kit, full set, indoor N/A
--------------------------------- ------------------------------------------------------ ----------------------------------
M640048 WAVEXpress Chassis N/A
--------------------------------- ------------------------------------------------------ ----------------------------------
1.5 PRICES FOR TECHNICAL SUPPORT
Telephone Support and Software Updates shall include third
level support from the Supplier's Technical Support Center in
Redwood City, CA and shall include those items identified in
Schedule 4. Prices are calculated at the beginning of each
quarter based upon the cumulative volume of Goods shipped
during the term of this agreement except that the purchaser
shall have, no obligation to pay for support for Goods shipped
in the 12 months prior to the beginning of the current
quarter. Payment for such services are provided in Schedule 1,
Clause 9.
1.5.1 The rate will be 2.28% of the Price of the Goods per
year measured on a quarterly basis
1.5.2 The Purchaser will make available for a period of not
less than 12 calendar months following Agreement
signing, 2 or 3 senior technical Level 3 (Product
Support) specialists. At least one of these
specialists will be NSS trained.
1.5.3 Supplier will make available Product Support
Specialists on an emergency call basis and use best
efforts to meet Purchasers requirements.
1.5.4 Purchaser will provide 6 person- months of assistance
during the first four month period following the
signing of this Agreement in the area of OSS and NSS
curriculum development at locations to be determined
by both parties in an effort to accelerate the
availability of the courses and familiarity of the
instructors with the Supplier's product.
PAGE 30 OF 58
1.6 PRICES FOR TRAINING
Customer Training will be provided if available resources
permits as it is expected that Purchaser will train it own
personnel and personnel of its Customers
-----------------------------------------------------------------------------------------------------------------------------------
PART NO. NAME OF TRAINING COURSE CHARGE IN U.S.$ DURATION (DAYS)
-----------------------------------------------------------------------------------------------------------------------------------
T100 GSM Overview $400 1
-----------------------------------------------------------------------------------------------------------------------------------
T200 Product Overview $200 1/2
-----------------------------------------------------------------------------------------------------------------------------------
T300 OMC-R system Administration $800 2
-----------------------------------------------------------------------------------------------------------------------------------
T400 OMC-R Network Operations $1200 3
-----------------------------------------------------------------------------------------------------------------------------------
T500 BSS Operations & Maintenance $1200 3
-----------------------------------------------------------------------------------------------------------------------------------
T600 BSS Installation & Commissioning $800 2
-----------------------------------------------------------------------------------------------------------------------------------
T700 OMC-s System Administration $800 2
-----------------------------------------------------------------------------------------------------------------------------------
T800 OMC Network Operations $1200 3
-----------------------------------------------------------------------------------------------------------------------------------
T900 WAVEXchange Operations & Maintenance $1200 3
-----------------------------------------------------------------------------------------------------------------------------------
See Supplier's Training Guide for further details.
Train the Trainer courseware shall be developed and agreed
upon within 30 days of the agreement signing. During this
period of time Funding and Pricing will be negotiated in good
faith and be consistent with the above training course pricing
table.
1.7 PRICES FOR DOCUMENTATION
A. Sample Customer Documentation Structure
---------------------------------------------------------------------
D640134C 2.0 Includes the Following:
WAVEXpress/BTS Installation and
Commissioning Guide
WAVEXpress/BSC Installation and
Commissioning Guide
WAVEXpress OMC-R Installation and
Commissioning Guide
WAVEXpress OMC-R System
Administrator's Guide
WAVEView Operations and Maintenance Guide
Craft PC Guide
InterWAVE Parameter Dictionary
Network Implementation Guide
BSS Maintenance Guide
---------------------------------------------------------------------
B. Training Material
Includes Instructor and Student Xxxxx
X. Documentation Cost
$52,500 Annual Fee. All documentation to be
distributed on electronic media.
PAGE 31 OF 58
1.8 PRICES FOR GUARANTEE PERIOD EXTENSION
---------------------------------------------------------------------------------------------------
STANDARD PERIOD OF EXTENSION
---------------------------------------------------------------------------------------------------
FIRST YEAR ONE YEAR TWO YEARS
---------------------------------------------------------------------------------------------------
Equipment Return to Factory - No Charge 1.33% of Price N/A
---------------------------------------------------------------------------------------------------
Software No Charge N/A N/A
---------------------------------------------------------------------------------------------------
1.9 PRODUCT DESCRIPTIONS
See Schedule 10
2. Notwithstanding Clause 1 above, the prices for individual Purchase
Orders once issued shall remain firm and fixed for their duration,
unless otherwise provided for by operation or: any other term of the
Agreement.
3. PRICING OF ENHANCEMENTS
3.1 Where the Supplier enhances the Goods above and beyond the
requirements of the relevant Specification, including the new
features or facilities, the Supplier shall state in writing
the effect such enhancement will have on the Goods and what
adjustment, if any, will be required to the Agreement. The
Supplier shall furnish such details in a time scale agreed
between the Parties.
3.2 Where the Supplier shows that an enhancement involves a change
in the price or lead times for the Goods, the Supplier shall
make best efforts as to the reasonableness of the changes
arising therefrom.
3.3 The Supplier shall not enhance the Goods in any respect unless
instructed in writing to do so, by the Purchaser.
3.4 The Supplier shall demonstrate best faith efforts to ensure
that the price for enhancements does not include any work that
should be performed under any other term of the Agreement or
any Purchase Order. This shall include, but not be restricted
to, enhancements in respect of operational support, repair,
build management and guarantee.
4. FORECASTING MECHANISM FOR GOODS
The forecasting mechanism for Goods volume shall be as follows:
4.1. The Purchaser will provide monthly a rolling 12 month
forecast, broken down by country, of their requirements as
precise as possible of the Goods to the Supplier by a date
to be agreed. The
PAGE 32 OF 58
Purchaser shall use best efforts to forecast and purchase at
least the amounts set forth in the Purchase Baseline in
Schedule 9.
4.2 The forecast, broken down by country, for the current month
and the two months following are firm and not subject to
change. The third month following the current month can have
the quantity changed by ten percent up or down and each item
forecast as precisely as possible. Global bulk Purchase Orders
for the third month following the current month are due at the
end of the current month. Specific Purchase Orders as
described in Schedule 7 are due six (6) weeks before shipment.
The fourth month can have the quantity change by twenty per
cent up or down and each forecast item as precisely as
possible twenty per cent up or down. The fifth month can have
the quantity changed twenty per cent up or down and each item
forecast as precisely as possible. The sixth month can have
the quantity changed ten per cent up or down and each item
forecast as precisely as possible. For all other months the
forecast is given as information.
4.3 The parties agree from time to time to discuss in good faith
whether the three (3) month fixed forecast period should be
reduced to conform with market requirements.
5. CREDIT FOR TECHNICAL SUPPORT FROM THE PURCHASER
In consideration of the Purchaser providing first and second level
support to its Customers and the value of other assistance being
provided to the Supplier hereunder, including product evolution and
marketing support, the Supplier shall provide a credit to the Purchaser
equal to five (5%) percent of the net Price of Goods, excluding
Services, until such time as the Parties have developed more detailed
information on the reasonableness of such charges in relation to the
services provided by the Purchaser and have reached mutual agreement on
alternate charges. The credit shall be indicated on each invoice
submitted by the Supplier to the Purchaser and may be deducted by the
Purchaser from such invoice. The Supplier shall not provide any similar
credit to any other distributor of its products (including OEM
distributors) unless such other distributor provides similar support
services and assistance to the Supplier.
PAGE 33 OF 58
SCHEDULE 3
SPECIFICATIONS
FACTORY TEST SPECIFICATIONS
ACCEPTANCE TEST SPECIFICATIONS
Supplier will provide to Purchaser these documents within thirty calendar days
of the signing of the Agreement.
A meeting to accept those documents will be held within 60 days of the signing
of this Agreement.
PAGE 34 OF 58
SCHEDULE 4
SUPPORT REQUIREMENTS
For the purposes of this Schedule 4 "Support Period" shall mean a period of time
commencing from the date of Agreement and terminating five (5) years from the
date of delivery of the last Goods supplied under the Agreement.
1. POST GUARANTEE REPAIR SERVICE
The Supplier hereby undertakes to maintain a repair capability for
Goods throughout the Support period. In accordance with this
undertaking, the Supplier shall, if required by the Purchaser, provide
a "post guarantee repair service" for Goods. The Supplier's charges for
such repair are detailed in Schedule Goods repaired in accordance with
such "post guarantee repair service" shall be repaired and re-delivered
to the Purchaser within 30 days of return of the Goods to the Supplies
works.
If the product is damaged beyond reasonable cost to repair or due to
improper maintenance because of being modified or incorrectly repaired
by a non-authorized third party, the Supplier will not be obliged to
effect a repair but will offer the Purchaser a replacement product at a
price defined in this agreement. The Supplier's repair obligation does
not extend to defects arising out of improper handling or uses of Goods
such as, but not limited to, excessive water, or other environmental
conditions, excessive force or vandalism, etc. In those case the
Supplier will offer to the Purchaser replacement Goods at the prices
quoted for Spares below with an explanation regarding the reasons not
to repair the Goods.
2. SPARES
2.1 The Supplier shall, if requested, during the Support Period,
provide the Purchaser with any spare or replacement parts as
may be required subject to the field replaceable units defined
by the Supplier. Where agreed prices do not exist, such spares
or replacement parts shall be provided at prices and in time
scales that are fair and reasonable.
2.2 The Supplier accepts that the Purchaser requires continuity of
supply and hereby undertakes to give the Purchaser at least
six (6) months written notice of its being unable to supply
Goods, spares or replacement parts covered by the Agreement.
In such an event the Supplier shall, without any additional
cost whatsoever to the Purchaser, maintain such stocks of
Goods, spares, replacements parts as the Supplier believes
necessary, to fulfill its obligations under existing Purchase
Orders and guarantee obligations.
2.3 For future requirements, the Supplier will undertake to
propose an alternative source of supply or will offer to the
Purchaser the opportunity of a last time buy in respect of
such Goods, spares and replacements parts for stock. Such
offer shall remain open for acceptance, by the Purchaser, for
a period of not less than three (3) months from the date of
submission. Where agreed prices do not exist, such Goods,
spares and replacement parts shall be provided at prices and
in time scales that are fair and reasonable.
PAGE 35 OF 58
3. DOCUMENTATION
The Supplier shall, if requested, during the Support Period, provide
the Purchaser with such information and documentation as the Purchaser
may reasonably require in order to fulfill Customer maintenance and
support requirements. Where agreed prices do not exist, such
information and documentation shall be provided at prices and in time
scales that are fair and reasonable.
4. TECHNICAL SUPPORT
4.1 FOR EQUIPMENT
The Supplier hereby agrees to make available to the Purchaser
a support service for Equipment for the Support Period in
successive renewable twelve (12) month periods. The Equipment
support service shall as a minimum provide for:
4.1.1 A service desk (contacted through a telephone
helpline) to enable the Purchaser to obtain a quick
response to the Purchaser's fault enquiries. The
service desk shall operate between 8:30a.m. -
5:30p.m. Pacific Standard Time for logging and
tracking fault reports Alternatively, the Purchaser
may use the mail or email to communicate with the
Supplier relative to such support. A central number
will be provided for 24 hour pager support for after
hours calls on emergency situations.
4.1.2 The allocation of a case number upon placing of a
fault report. The Purchaser shall use the case number
in all communications associated with the fault
report.
4.1.3 The investigation, by the Supplier, of any
fault/technical queries in the Equipment reported by
the Purchaser. If such investigation reveals an
error, defect or malfunction the Equipment, to
provide a return to service using a temporary
solution, acceptable to the Purchaser ("Workaround")
in event of failure in the time frame provided in
4.1.7 has upon the severity of the problem.
4.1.4 The Supplier shall keep the Purchaser informed of the
progress in resolving any fault/technical query.
4.1.5 Visits to the Purchaser's/Customer's sites where
deemed necessary for the purpose of investigation or
fault resolution. Attendance at the
Purchaser's/Customer's sites shall be on a best
efforts basis. The charge for such site visits is
detailed in Schedule 2.
4.1.6 The Supplier shall also provide the following
services as part of the support service for
Equipment:
- Co-ordination of 3rd party support
- Simulation of problems using equipment
available in Suppliers test facilities
- Multi-vendor product expertise
- Prioritization of faults/events and escalate
as required to next level
- Access to the system design authorities and
highest level design documentation.
- Specific designs or modifications to
Equipment will be developed, as required.
- Documentation Updates
PAGE 36 OF 58
4.1.7 Case Seventy Definition and Closure Policy
The parties will agree to perform a comparison of
their case severity classifications within sixty days
of the signing of this Agreement to ensure
understanding and consistency of such classifications
using the definitions below as the guideline.
S1 EMERGENCY System or network is down
and unusable as a result
of a problem which causes
fails, or results in
severe intermittent
operations with no Customer
acceptable work-arounds, or
the Customer states the
problem has a critical
impact on their operation.
S2 SIGNIFICANT Impact System or network
is up and will run,
however, the problem
exists with significant
impact and which has
difficult or no
work-arounds causing
substantial performance
degradation, or prevents
the Customer from using a
critical feature of the
product or the system.
S3 LIMITED IMPACT System or network is up
and running, but minor
problems exist having
limited impact. Customer
can use the system or
product with limitation
or workarounds that are not
critically impacting the
overall operations. This
could be a non-problematic
information issue such as a
documentation error as
well.
S4 RMA Logging a request for a
Return Material
Authorization.
S5 ENHANCEMENT Required for a new
product or feature. This
is used by both the
Customer Advocacy function
and Marketing to prioritize
future releases(includes
documentation).
S6 INFORMATIONAL Used for Customer
Information Requests
4.1.8 Escalation Table
------------------ --------------------- -------------------- -------------------- ---------------------- ------------------
VICE PRESIDENT
INITIAL RESPONSE RELEVANT ENGR. CUSTOMER
SEVERTY (VIA TELEPHONE) MANAGER TAC DIRECTOR/MGR. ADVOCACY/ENGR EXECUTIVE STAFF
------------------ --------------------- -------------------- -------------------- ---------------------- ------------------
S1 15 Minutes To+4 hours To+8 hours To+4 hours To+24 hours
------------------ --------------------- -------------------- -------------------- ---------------------- ------------------
S2 15 Minutes To+24 hours To+36 hours To+4 hours N/A
------------------ --------------------- -------------------- -------------------- ---------------------- ------------------
S3 Next Working Day To+48 hours To+120 hours N/A N/A
------------------ --------------------- -------------------- -------------------- ---------------------- ------------------
TO = time of receipt of initial call
4.1.9 Target Time to Resolve within Receipt of Initial
Fault Report
Supplier shall use all reasonable effort to provide
resolution in accord with table below
PAGE 37 OF 58
------------------ ------------------------ ------------------------ --------------------------------------------------
SEVERTY NSS WORKAROUND BSS WORKAROUND FULL FIX
------------------ ------------------------ ------------------------ --------------------------------------------------
S1 Within 24 Hours Within 48 hours 2 Weeks Via Patch
------------------ ------------------------ ------------------------ --------------------------------------------------
S2 1 Week 1 Week 90 Days with maintenance release
------------------ ------------------------ ------------------------ --------------------------------------------------
S3 Not Required Not Required Commitment will be made within 60 days to a
scheduled full or maintenance release
------------------ ------------------------ ------------------------ --------------------------------------------------
4.2 FOR SOFTWARE
The Supplier hereby agrees to make available to the Purchaser
a Software maintenance and support service for the Support
Period in successive renewable twelve (12) month periods. The
Software maintenance and support service shall provide for:
4.2.1 A service desk (contacted through a telephone help
line) to enable the Purchaser to obtain a quick
response to the Purchaser's Software Problems. The
service desk shall operate during 8:30a.m. - 5:30p.m.
Pacific Standard Time for logging and tracking fault
response Alternatively, the Purchaser may use the
mail to communicate with the Supplier relative to
such support
4.2.2 The allocation of a case log number upon placing of a
fault report. The Purchaser shall use the call case
number in all communications associated with the
fault report.
4.2.3 The investigation, by the Supplier, of any Software
Problem in the Software reported by the Purchaser. If
such investigation reveals an error, defect or
malfunction in the Software, to provide Correction
according to the following time scales based upon the
severity as defined in sub-clause 4.1.7:
Supplier shall use all reasonable effort to
provide resolution in accord with table below
------------------ ------------------------ ------------------------ --------------------------------------------------
SEVERTY NSS WORKAROUND BSS WORKAROUND FULL FIX
------------------ ------------------------ ------------------------ --------------------------------------------------
S1 Within 24 Hours Within 48 hours 2 Weeks Via Patch
------------------ ------------------------ ------------------------ --------------------------------------------------
S2 1 Week 1 Week 90 Days with maintenance release
------------------ ------------------------ ------------------------ --------------------------------------------------
S3 Not Required Not Required Commitment will be made within 60 days to a
scheduled full or maintenance release
------------------ ------------------------ ------------------------ --------------------------------------------------
4.2.4 The Supplier shall keep the Purchaser informed of the
progress in resolving any Software Problem.
4.2.5 The Supplier shall notify the Purchaser:
- as soon as practicable when a new Release or
new Version is issued; and
- when issued new Releases or new Versions
bear upon a Software Problem which the
Purchaser has reported.
PAGE 38 OF 58
4.2.6 The Supplier shall deliver to the Purchaser at an
agreed upon price, new Releases and or new Versions
of the Software, as soon as practicable, including
any new documentation or portions thereof.
4.2.7 Visits to the Purchaser's/Customer's sites where
deemed necessary for the purpose of investigation or
for the installation of new Software. Attendance at
the Purchaser's/Customer's sites shall be on a best
efforts basis in response with the Purchaser's
request. The charge for such site visits is detailed
in Schedule 2.
4.2.8 The Supplier shall, when in-depth analysis is
required, provide direct access to its support
computer for the purposes of downloading critical
patches or provide information needed by the
Purchaser to access the computer over telephone
lines.
4.2.9 The Supplier agrees to support the then current
version and two previous versions of Software under
pricing conditions stated in sub-clause 1.5 of
Schedule 2. Upon release of the third Version of the
Software provided to the Purchaser under this
Agreement, the Parties agree to discuss in good faith
whether any modifications to this support policy is
required.
4.2.10 Supplier will issue a first root cause analysis
report within48 hours on S1 severity cases. A final
root cause analysis will be issued within thirty (30)
days on these cases.
4.2.11 The Supplier and Purchaser will hold weekly
conference calls to discuss and prioritize technical
issues.
For the purpose of 4.2 above, the following definitions
shall apply:
a) "Release" or "Update" means a maintenance
revision to the Software (including
documentation) designed to correct an error
or improve performance. A new Release
(Update) is indicated by a change in
characters to the right of the decimal point
in the Product version number (e.g. V1.1
changes to V1.2).
b) "Versions" or "Upgrade" means a new version
of the Software (including documentation)
which incorporates a series of new releases
of Software and may incorporate other
changes, improvements and new features. A
new Version (Upgrade) is indicated by a
change in characters to the left of the
decimal point in the Software version number
(e.g. V I. 1 changes to V2.1).
c) "Previous Sequential Releases" shall mean
the new Version of the Software which has
been replaced by a subsequent Version which
is supported as indicated in paragraph
4.2.9.
d) "Software Problem" means a defect in the
Software distribution media and or Software
function which is inconsistent with the
Software Specification.
PAGE 39 OF 58
e) "Correction" of a Software Problem means the
replacement of defective software
distribution media and or making the
function of Software consistent with the
Software Specification.
f) "Workaround" shall mean an alternative
method to provide a temporary solution to a
reported problem with Software to enable the
continued operation of the Software that is
reasonably acceptable to the Purchaser.
PAGE 40 OF 58
SCHEDULE 5
TRAINING PROGRAMS
SUPPLIER OBLIGATIONS
The Supplier shall make available the necessary documentation and
training courseware to enable the Purchaser and its Customers to use
and perform maintenance and provide support for the Goods. The courses
available to the Purchaser and Customers are detailed below:
COURSES FOR THE PURCHASER PERSONNEL
Are the same as those stated in sub-clause 1.6 of Schedule 2.
For details please refer to the Supplier's Training Catalog
COURSES FOR CUSTOMER PERSONNEL
Are the same as those stated in sub-clause 1.6 of Schedule 2.
For details please refer to the Supplier's Training Catalog
PURCHASER OBLIGATIONS
The Purchaser will make the necessary facilities available for the
training of their employees and Customers.
OBLIGATIONS OF BOTH PARTIES
The Supplier shall develop a plan with the Purchaser to train the
trainers identified by the Purchaser who will be conducting the
training at sites to be mutually agreed to.
PAGE 41 OF 58
SCHEDULE 6
QUALITY REQUIREMENTS
1. QUALITY CONTROL
1.1 The Supplier shall operate a quality system that meets the
requirements of ISO 9001 within twelve (12) months of signing
this Agreement and to the reasonable satisfaction of the
Purchaser at all locations undertaking activities in support
of the Agreement.
1.2 The Purchaser's and the Supplier's named contacts who have
management responsibility for quality assurance for all
activities covered by the Agreement are identified below:
The Supplier's Quality Manager Xxxx Xxxxxxxxx
000 Xxxx Xxxxxx Xxxx
Xxxxxxx Xxxx, XX, 00000
The Purchaser's Quality Manager Xxxxxx Xxxx
Nortel Matra Cellular
Guyancourt, France
1.3 The Supplier shall provide access to the premises',
undertaking work relating to the Agreement, for the personnel
of the Purchaser and its Customers' to carrying out any
assessments deemed necessary to ensure the Supplier's
compliance with ISO 9001, process capability, and any other
reasonable requirements of the Purchaser.
1.4 All activities associated with the Agreement, and in
particular all release activities associated with procurement,
manufacturing, testing and repairs, shall be clearly
documented to show the sequence of activities and the
acceptance criteria. This information shall be documented such
that a controlled copy is supplied to the Purchaser within
three (3) months of signing the Agreement. Such documentation
shall be kept up to-date at all times by the Supplier.
1.5 Final Factory Test results will be supplied with the shipment
of the Goods.
1.6 All Goods shall be new, of sound design, materials and
workmanship.
2. REPORTS AND SUPPLIER PERFORMANCE
2.1 The Supplier shall provide regular monthly reports, to be
submitted on a date to be agreed between the Parties, on the
performance of Goods and Services in relation to:
- delivery against lead time;
- reject rate at manufacturing release;
- Commissioning Failure Rate;
- Reliability;
- repair turn-around-time;
PAGE 42 OF 58
- level of no fault found; and
- repair diagnostics for Customer returned product.
The above reports shall provide data for each performance
measure in relation to the preceding calendar month. The
performance levels to be achieved by the Supplier, where
appropriate, are detailed in the Appendix to this Schedule 6.
Where the Supplier fails to achieve the required level(s), the
Purchaser and the Supplier shall agree a corrective action
plan which shall put in place activities and procedures to
remedy such non-achievement. Such corrective action plan shall
be without prejudice to any rights or remedies available to
the Purchaser under the Agreement. The performance levels
shall be reviewed and agreed annually.
2.2 The Purchaser shall provide monthly reports of the failure
rate of Goods prior to going into service and the "In service"
reliability of Goods.
3. MANUFACTURING CHANGES
3.1 The Supplier shall formally document, in accordance with the
Supplier's "Change Control Procedure", all changes and/or
concessions approved by the Purchaser according to Clause 15
of Schedule 1 which affect the Goods' configuration or
compatibility.
3.2 Goods will only be accepted and paid for on condition that no
Product Change in design has been introduced by the Supplier
without notifying the Purchaser in writing.
4. Reliability
4.1 The Supplier shall submit to the Purchaser as part of its
deliverable documentation a "Reliability Plan" for each Goods
type required under the Agreement. The Reliability Plan shall
be provided to the Purchaser for review and approval not later
than 90 days from the date of the Agreement.
4.2 The content and format of the Reliability Plan shall be agreed
with the Purchaser and shall include details of the Suppliers
method's, process and activities for predicting, demonstrating
and improving reliability of the Goods. The Reliability Plan
shall also identify the planned test phases and activities
during manufacture, to demonstrate the Goods compliance with
the Purchaser's requirements.
4.3 As part of the Reliability Plan, the Supplier shall provide to
the Purchaser reports and results of the outcome/output of
those activities detailed in the Reliability Plan.
5. GENERAL
5.1 The Supplier shall co-operate with the Purchaser in
investigating and resolving any Customer inquiries and
complaints.
PAGE 43 OF 58
5.2 The Supplier shall keep the Purchaser informed of its
manufacturing capacity and the effect of any changes including
process and location that may impact upon the manufacturing
capability. This information shall be provided so as to be
complimentary to the forecasting process.
PAGE 44 OF 58
APPENDIX TO SCHEDULE 6
This Appendix provides details of the performance measures for Goods and
Services. Supplier fully intends to meet the Target Performance Levels described
below and shall use all reasonable efforts to do so.
1. DELIVERY
The quantifies of Goods delivered by the due date as a percentage of
the total quantity of Goods required to be delivered during any
Supplier fiscal quarter shall be measured and communicated to the
Purchaser no later than fifteen (15) days after the end of the
Supplier' s quarter and track a four (4) quarter history.
Target Performance Level = 100%
2. MANUFACTURING RELEASE FAILURE RATES
The number of Goods passing the final test stage on first submission,
as a percentage of the total number of Goods submitted to the final
test during any Supplier fiscal quarter shall be measured and
communicated to the Purchaser no later than fifteen (15) days after the
end of the Supplier's quarter. The data shall be tracked for four (4)
consecutive quarters.
Target Performance Level = > 95%
3. COMMISSIONING FAILURE RATE
The number of Goods returned to the Supplier for repair from test stage
prior to be being placed in service, as a percentage of the Goods that
have been supplied within the "window". The data shall be tracked for
four (4) consecutive quarters.
Target Performance Level = TBD In next 60 days
4. RELIABILITY
The MTBF of each unit measured using the in-services returns for repair
and the in-service equipment services population. The data shall be
tracked for four (4) consecutive quarters.
Target Performance Level= > Agreed MTBFs
--------------------------------- ------------------------------------------------------ --------------------------------
PART NUMBER DESCRIPTION OF FIELD REPLACEABLE UNIT ESTIMATED MTBF - HOURS
--------------------------------- ------------------------------------------------------ --------------------------------
M340220 Clock, 13MHz 1,344,267
--------------------------------- ------------------------------------------------------ --------------------------------
M340014 E-l, Long Haul, 2 Port 406,861
--------------------------------- ------------------------------------------------------ --------------------------------
M340098 E-1 with 2 TRAUS 244,141
--------------------------------- ------------------------------------------------------ --------------------------------
M340121 IWP 188,621
--------------------------------- ------------------------------------------------------ --------------------------------
M640034 Power supply 350W, Hi24, 115v AC 297,300
--------------------------------- ------------------------------------------------------ --------------------------------
M640035 Power supply 350W, Hi24, 230v AC 297,300
--------------------------------- ------------------------------------------------------ --------------------------------
M640026 Power supply 350W, Hi24, -48V DC 297,300
--------------------------------- ------------------------------------------------------ --------------------------------
M640027 Power Supply 50A, 115V AC 297,300
--------------------------------- ------------------------------------------------------ --------------------------------
M640028 Power Supply 50A, 230V AC 297,300
--------------------------------- ------------------------------------------------------ --------------------------------
M340063 RF Distribution 900 MHz 305,437
--------------------------------- ------------------------------------------------------ --------------------------------
PAGE 45 OF 58
--------------------------------- ------------------------------------------------------ --------------------------------
M340088 RF Distribution 1800 MHz 305,437
--------------------------------- ------------------------------------------------------ --------------------------------
X/X XX Xxxxxxxxxxxx 0000 XXx X/X
--------------------------------- ------------------------------------------------------ --------------------------------
M640116 TRX 900 MHz 122,392
--------------------------------- ------------------------------------------------------ --------------------------------
M640117 TRX 1800 MHz 122,392
--------------------------------- ------------------------------------------------------ --------------------------------
N/A TRX 1900 MHz N/A
--------------------------------- ------------------------------------------------------ --------------------------------
M640154 TurboWAVE (900 MHz) 100,000
--------------------------------- ------------------------------------------------------ --------------------------------
M648154 TurboWAVE (1800 MHz) 100,000
--------------------------------- ------------------------------------------------------ --------------------------------
M640025 Fan, 12V Power Supply 66,241
--------------------------------- ------------------------------------------------------ --------------------------------
M640021 Cable kit, full set, indoor N/A
--------------------------------- ------------------------------------------------------ --------------------------------
M640048 WAVEXpress Chassis N/A
--------------------------------- ------------------------------------------------------ --------------------------------
5. REPAIR TURN AROUND TIME
The number of Goods repaired and returned to the Purchaser within the
turnaround time, as a percentage of the total number of Goods repaired
and returned to the Purchaser
The turnaround time is thirty (30) days measured from receipt by the
Supplier to dispatch by the Supplier to the Purchaser.
Target Performance Level = 100%
6. NO FAULT FOUND
The number of units diagnosed as no fault found as a percentage of the
units returned to the Purchaser during each Supplier fiscal quarter
shall be measured and communicated to the Purchaser no later than
fifteen (15) days after the end of the Supplier's quarter. The data
shall be tracked for four (4) consecutive quarters.
Target Perforce Level = 75%
7. REPAIR DIAGNOSTICS
Details of the reported fault and repair action taken on each unit
diagnosed during the Supplier's fiscal quarter will be gathered and
returned to the Purchaser no later than twenty-one (21) days after the
end of each quarter. Both parties will strive to reduce this reporting
interval over the next twelve months with the targeting a one month
turnaround time.
Performance Level = No target applicable.
PAGE 46 OF 58
SCHEDULE 7
ORDERING AND BILLING DETAILS
1. Purchase Orders shall contain the following details:
- Unique Purchase Order Number,
- The Purchaser's Address;
- Description, Part Number, Specification and Quantity of Goods;
- Description of Services required;
- Delivery Date;
- Delivery Address;
- Price;
- Name of the Purchaser's Authorized Procurement Administrator,
and
- Reference to the Agreement.
Purchase Orders shall be sent to the following address:
000 Xxxx Xxxxxx Xxxx
Xxxxxxx Xxxx, XX, 00000
The Supplier's Authorized Representative is Xxxxxxx Xxxxxxxx
2. Signed Purchase Order acknowledgments shall be returned to the
Purchaser's Contract Administration Department at the address given in
clause 3, below.
3. THE PURCHASER'S ADDRESSES AND PROCUREMENT ADMINISTRATOR
3.1 PURCHASING AND CONTRACT ADMINISTRATION
Nortel-Malra Cellular
XX 00
0 Xxxxx des fres Montgolfier
00000 Xxxxxxxxxx
Xxxxxx
The Procurement Administrator is Xxxx Xxxxxx
3.2 INVOICING
Invoices should be sent to the following address. They will be
forwarded by the Procurement Administration for payment by the
appropriate Purchaser.
Nortel-Malra Cellular
1 Place des fres Montgolfier
78042 Guyancourt
PAGE 47 OF 58
France
The Purchaser's Authorized Invoicing Administrator is Xxxx Xxxxxx
PAGE 48 OF 58
SCHEDULE 8
ESCROW
1. The Supplier shall, within thirty (30) days of receipt of a written
request from the Purchaser, enter into an escrow agreement with a
reputable escrow agent for the deposit of Software source code
information and hardware design information relating to Goods
(hereinafter collectively referred to as "Escrow Information"). The
terms of the escrow agreement are to be agreed between the Parties, but
shall at minimum provide:
1.1 an undertaking by the Supplier that all modifications, updates
and changes to the Escrow Information are deposited within
thirty (30) days of them becoming available;
1.2 that if Supplier fails, through no fault of Purchaser, to
provide a Correction or Workaround for an S1 severity Software
Problem within ninety (90) days of Purchaser's fault report to
Supplier, then copy of the Escrow Information necessary to
remedy such Software Problem shall be released to Purchaser,
provided that Purchaser may only use such Escrow information
to remedy such Software Problem, and all such Escrow
Information shall be returned to the escrow agent immediately
after resolution of thc Software Problem;
1.3 that if Supplier commits any act of bankrupt, or compounds
with its creditors, or a petition or receiving order in
bankrupt is presented or made against the Supplier, or a
petition for an administration order is presented in relation
to the Supplier, or a resolution or petition to wind up the
Supplier, or a receiver or administrative receiver is
appointed, other than for reconstruction reorganization or
amalgamation, and such act or petition is not cured,
dismissed, or withdrawn within 90 days thereafter, or Supplier
ceases to carry on business, then the Escrow Information shall
be released to Purchaser, provided that Purchaser shall only
be entitled to use the Escrow Information to enable the
continued supply of Goods and the provision of maintenance a
support services to existing Customers.
2. All costs associated with the deposit and update of Escrow
Information shall be for the Purchaser's account.
PAGE 49 OF 58
SCHEDULE 9
PURCHASING BASELINE AND EXCLUSIVITIES
1. The Purchaser's Purchase Baseline is defined as follows (all revenues
are net of service credit as described in Schedule 2, clause 5):
---------------------------------------------------------------------------------------------------------------------------
US$M 1998 1999 2000 2001 2002
Calendar Quarter Q2 Q3 Q4 Q1 Q2 Q3 Q4
Quarterly Revenue 3 5 8 11 5 5 0
Annual Revenue 16* 21* 50* 82* 131
Cumulative Revenue 16 37 87 169 300
---------------------------------------------------------------------------------------------------------------------------
* Purchaser does not have the obligation to place these Purchase Order,
except as set forth in Schedule 9, sub-clause 2.1 and Schedule 2, Clause 4
and subject to the payment of the sums described in sub-clause 1.2 below
upon the Purchaser's failure to purchase Goods as anticipated in 1998 and
1999.
1.1 The Purchase Baseline can be adjusted, by good faith
negotiations, if, any material microcellular product
milestones as defined in the Development Plan (as stated in
Schedule 10, and subject to revision by mutual agreement of
the parties within 30 days after signing this Agreement) are
not met within 90 days of the target date in the Development
Plan.
1.2 If the purchases by the Purchaser, during any quarter of 1998
or 1999 are less than those indicated in the Purchase Baseline
above, the Purchaser shall pay the Supplier, at the end of
such quarter sum equal to 38.1% of the Price of the shortfall
of Goods not purchased by the Purchaser ("Shortfall Payment").
1.2.1 To the extent that the Purchaser makes up the
shortfall with an excess in the following quarter
(over the purchase baseline for such following
quarter), the Supplier will credit the Purchaser for
the shortfall payment.
1.2.2 The Purchaser shall not be obligated to pay for any
shortfalls due to the Supplier's failure to deliver
Goods which meet mutually agreed acceptance criteria.
2. Reflecting the fact that the Purchaser will supply
substantial, valuable and proprietary technology, technical
information and know-how to the Supplier pursuant to the
Technical Information Agreement being entered into between the
Parties, the Supplier shall be restricted from entering into
an OEM or distributor agreement with Nokia or Ericsson until
December 31, 1999 ("Limited Exclusivity"). After such time,
the Purchaser's Limited Exclusivity shall be terminated only
if the annual purchase of Goods by the Purchaser is less than
eighty (80%) percent of the annual Purchase Baseline at the
end of any of the calendar years 2000, 2001, 2002. Nothing in
this Agreement shall be construed to prevent the Supplier from
developing other products, whether or not competing with the
Goods, for supply to Nokia or Ericsson or any other purchaser,
provided that the Supplier complies with all provisions of
this Agreement, the Technical Information Agreement and the
Patent License Agreement.
2.1 If, however, the Purchaser's failure to meet an
eighty (80%) percent annual target is attributable
solely to the Supplier's delay in meeting a material
microcellular product milestone, or the Supplier's
delay in delivering goods which meet mutually agreed
PAGE 50 OF 58
acceptance criteria, the annual period for determining
achievement of the annual target shall be extended for the
length of such delay
3. On or before the Second Closing Date, the parties shall, by exercise of
their commercially reasonable best efforts acting in good faith, agree
upon a methodology for periodic reviews of the market forces, including
pricing and other factors that are materially impacting the Purchaser's
ability to achieve the commitments in the Purchaser's Purchase Baseline
and related commitments hereunder and from time to time to negotiate in
good faith any clarifications or modifications that may be appropriate
and equitable in the interests of each of the parties by reasons of
conditions prevailing from time to time in markets for the Goods.
PAGE 51 OF 58
SCHEDULE 10
PRODUCT DESCRIPTIONS
EQUIPMENT
1. WAVEXpress BTS
SPECIFICATIONS
Cellular Standards Supported ETSI GSM Phase 2
Features Supported Base transceiver
station (BTS); GSM RF
management, data and fax,
short message service,
antenna receive diversity,
encryption, optional power
supply redundancy
Transmit RF Frequency GSM 935- 960 MHz
DCS 1805 - 1880 MHz
Receive RF Frequency GSM 890- 000 XXx
XXX0000 - 0000 XXx
Xxxxxxx Power Up to 2.0 xxxxx at antenna
port (may be extremely
amplified for greater
transmit power)
Cell Size (Range) Up to 3 kilometers maximum
radius depending on
topography and environment
Number of TRXs per BTS 1 - 3
Channels per BTS 7- 22 simultaneous
Mobile Stations Supported GSM/DCS-compliant mobile
station (Phase 1, 2 or 2+)
GSM/PCS Interfaces Supported Abis and Radio (Phase 2)
Processors Distributed Motorola 68040
and 68360
Mobile Interfaces Supported GSM full-rate RF interface,
2400 bps -- 9600 bps
transparent
data/FAX
Trunk Network Interfaces G.703-compliant. E1, T1
planned
Power Requirements Power consumption: 150
xxxxx, 110/220 volts 50-60
Hz ac, -48 volts dc planned
Dimensions (h x w x d) 55 x 23 x 41 centimeters
(21.5 x 9 x 16 inches)
Weight 20 kg (44 lbs.)
Operating Environment Temperature: -10 DEG. to
45 DEG. C
Humidity: 10% to 90%
noncondensing,
10% to 95%
noncondensing
(outdoor)
2. WAVEXpress BSC
SPECIFICATIONS
Cellular Standards Supported ETSI GSM Phase 2
Features Supported Base station
controller (BSC); GSM RF
power management, data and
fax, short message service,
optional CPU and power
supply redundancy, optional
local transcoding (TRAU)
BTS RF Protocols Supported GSM 900
DCS 1800
Number of E1/T1 Ports per BSC 2 - 14
Number of BTSs per BSC 1 - 20
Number of TRXs per BSC 1 - 20, 1 - 30 in Release 3
PAGE 52 OF 58
BTSs Supported interWAVE WAVEXpress/BTS
others supporting GSM Abis
interface (requires
verification testing with
interWAVE)
Mobile Stations Supported GSM/DCS-compliant mobile
station (Phase 1, 2 or 2+)
GSM/PCS Interfaces Supported A and Abis
Processors Distributed Motorola 68040
and 68360
Mobile Interfaces Supported GSM full-rate RF interface,
2400 bps- 9600 bps
transparent
data/FAX
Trunk Network Interfaces G.703-compliant. El, T1
planned
Power Requirements Power consumption: 150
xxxxx, 110/220 volts 50-.60
Hz ac, -48 volts dc planned
Dimensions (h x w x d) 55 x 23 x 41 centimeters
(21.5 x 9 x 16 inches)
Weight 20 kg (44 lbs.)
Operating Environment Temperature: -10 DEG. to
45 DEG. C
Humidity:. 10% to 90%
noncondensing,
10% to 95%
noncondensing
(outdoor)
3. TurboWAVE BTS
SPECIFICATIONS
Cellular Standards Supported ETSI GSM Phase 2
Features Supported Base transceiver
station (BTS); GSM RF
management, data and fax,
short message service,
encryption, optional power
supply redundancy
Transmit RF Frequency GSM 935 - 960 MHz
DCS 1805- 1880 MHz
Receive RF Frequency GSM 890- 915 MHz
DCS 0000 - 0000 XXx
Xxxxxxx Power Up to 4.0 xxxxx at antenna
port with 2 TRXs and 1
antenna
Up to 8.0 xxxxx at antenna
port with 2 TRXs and 2
antenna
Up to 16.0 xxxxx at antenna
port with 1 TRX and 1
antenna
Cell Size (Range) Up to 15 kilometers maximum
radius depending on
topography and environment
Number of TRXs per BTS 1 - 2
Channels per BTS 7- 14 simultaneous
Mobile Stations Supported GSM/DC-compliant mobile
station (Phase 1, 2 or 2+)
GSM/PCS Interfaces Supported Abis and Radio (Phase 2)
Processors Distributed Motorola 68040
and 68360
Mobile Interfaces Supported GSM full-rate RF interface,
2400 bps- 9600 bps
transparent
data/FAX
Trunk Network Interfaces G.703-compliant E1, T1
planned
Power Requirements Power consumption: 250
xxxxx, 110/220 volts 50-60
Hz ac, -48 volts dc planned
Dimensions (h x w x d) 55 x 23 x 41 centimeters
(21.5 x 9 x 16 inches)
Weight 20 kg (44 lbs.)
Operating Environment Temperature: -10 to 45
DEG. C
Humidity:. 10% to 90%
noncondensing,
10% to 95%
noncondensing
(outdoor)
4. WAVEXchange
SPECIFICATIONS
PAGE 53 OF 58
Applications GSM mobile networks,
wireless local loop, or
wireless PBX adjunct
Base Functionality Speech Services:
GSM900/DCS1800/PCS1900
(future)
Inter/lntra BSC handover,
Integral VLR/HLR per GSM
3.08 and GSM 9.02 MAP Call
management (GSM 4.08)
Mobility management (GSM
4.08)
- Ciphering,
identification,
location update,
identification, IMSI
attach/detach, TMSl
reallocation,
BSSMAP per GSM 8.08, both
connection/connectionless
Unified OMC, integrating
OMC-S/OMC-R applications
Call data records per GSM
12.05, ASCII formatted
Performance per GSM 12.04,
with proprietary extensions
Alarm/event management,
with proprietary extensions
Base Platform 9-slot VME backplane with
TDM bus (16 lines x 8Mbps)
IWP Module (68040 CPUI68360
Comm. Proc.)
- OMC connectivity via
Ethernet DB15 connector
- Craft Interface (RS-232c
9-pin); external alarms
(RJ45)
- Hard disk drive and
flash memory
Dual port El/T1 module
(68360 Comm. Proc.) planned
- Support for 14 E1 ports
per chassis
- Integral 64kbps time/
space switch"
- Available with BNC 75
omega or DB15 120 omega
connectors
- Echo cancellation/tones
available
- 1->N trunk redundancy
(future)
Redundant power supply
(optional)
Services Emergency calls
Call Barring (Operator
Determined - ODB), GSM 2.88
Call Forwarding
Unconditional (CFU - OD),
GSM 2.82 Intra WAVEXchange
FAX/data services, GSM
2.02/2.03
Performance Call processing
capabilities: 100 Erlangs
providing -8000 BHCA
Performance goals: per
GSM 3.05
Environmental Temperature: 0 DEG. C to
45 DEG. C
Humidity 0% to 95%,
noncondensing
5. Combo
SPECIFICATIONS
Applications GSM mobile networks,
wireless local loop, or
wireless PBX adjunct
Base Functionality Speech Services:
GSM900/DCS1800/PCS1900
(future)
Integral VLR/HLR per GSM
3.08 and GSM 9.02 MAP Call
management (GSM 4.08)
Mobility management (GSM
4.08)
- Ciphering,
identification,
location update,
identification, IMS1
attach/detach, TMSI
reallocation,
BSSMAP per GSM 8.08, both
connection/connectionless
Call data records per GSM
12.05, ASCII formatted
Performance per GSM 12.04,
with proprietary extensions
Alarm/event management,
with proprietary extensions
Features Supported GSM RF management, data and
fax, short message service,
encryption,
Transmit RF Frequency GSM 935- 960 MHz
DCS 1805 - 1880 MHz
Receive RF Frequency GSM 890- 915 MHz
DCS 1710- 1785 MHz
PAGE 54 OF 58
Antenna Power Up to 16.0 xxxxx at antenna
port with 1 TRX and 1
antenna
Cell Size (Range) Up to 15 kilometers maximum
radius depending on
topography and environment
Number of BTS per Combo 1 - 3 planned
Number of TRXs per Combo 1 - 2, 1 - 10 planned
(3TRX per BTS and 1TRX
in Combo)
Channels per Combo 7 - 14 simultaneous
Mobile Stations Supported GSM/DCS- compliant mobile
station (Phase 1, 2 or 2+)
Base Platform 9-slot VME backplane with
TDM bus (16 lines x 8Mbps)
IWP Module (68040 CPU/68360
Comm. Proc.)
- OMC connectivity via
Ethernet DB15 connector
- Craft Interface (RS-232c
9-pin); external alarms
(RJ45)
- Hard disk drive and
flash memory
Dual port E1/T1 module
(68360 Comm. Proc.) planned
- Support for 14 E1 ports
per chassis
- Integral 64kbps time/
space switch
- Available with BNC
75omega or DB15
120omega connectors
- Echo cancellation/tones
available
- 1->N trunk redundancy
(future)
Redundant power supply
(optional)
Services Emergency calls
Call Barring (Operator
Determined - ODB), GSM 2.88
Call Forwarding
Unconditional (CFU - OD),
GSM 2.82
GSM/PCS Interfaces Supported Abis and Radio (Phase 2)
Processors Distributed Motorola 68040
and 68360
Mobile Interfaces Supported GSM full-rate RF interface,
2400 bps - 9600 bps
transparent data/FAX
Trunk Network Interfaces G.703-compliant. El, T1
planned
Power Requirements Power consumption: 250
xxxxx, 110/220 volts 50-60
Hz ac, -48 volts dc planned
Dimensions (h x w x d) 55 x 23 x 41 centimeters
(21.5 x 9 x 16 inches)
Weight 20 kg (44 lbs.)
Operating Environment Temperature: -10 DEG. to
45 DEG. C
Humidity 10% to 90%
noncondensing,
10% to 95%
noncondensing
(outdoor)
6. WAVEView OMC
APPLICATIONS
Configuration Management
- Region-wide configuration
database
- Modification of network
elements and network
parameters
- Remote download of
software to network
elements
- Audit functions that upload
current configuration of
network elements
- Region map that displays
the network elements and
connectivity
- Addition and deletion of
network elements (MSC, BSC,
and BTS)
- Full support of cell and
frequency configuration
management
- Region map displays current
network element states'
Fault Management
- Real-time monitoring of the
network for faults and
problems
- Visual indication of
problem areas using
detailed views
- Polling of the wireless
access network to determine
the status of
- the operations and
maintenance communication
links
- Maintenance of daily event
logs
- Tracking of active alarm
conditions
- Audible alarms based on
severity
PAGE 55 OF 58
- Clearing and acknowledgment
of alarms
- Alarm seventy can be
altered
Performance Management
- Collects network
performance statistics
- Building of a knowledge
base of network resource
usage for strategic
business and network
planning decisions
- Use of performance data for
troubleshooting and
monitoring network
performance
Data Import and Export
- Integrates with existing
network management support
tools
- Import cell configuration
data from existing cell
planning tools
- Export of network
performance data and
statistics to cell
planning tools
- Periodic collection BSC/BTS
statistics into ASCII files
for export to external
tools
- Export of historical event
and alarm logs
Access Security Management
- Definition of user access
privileges settable by the
administrator
- Definition of different
classes of WAVEView users,
privileges, and passwords
- Two levels of security
control beyond normal UNIX
login security
- Password authorized use
of WAVEView
- User restrictions based
on domains and object
class access control
PAGE 56 OF 58
DEVELOPMENT PLAN FOR BSS RELEASES
1 BSS Release 2.0 (Currently Shipping) 3. BSS Release 4.0 (Calendar Q3, 1998)
MAIN FEATURES ADDITIONAL FEATURES
- No cycling of MS power on handover - SMS Cell Broadcast
- MS Dynamic Power Control on - Handover on congestion with threshold
RxQual and RxLev - Force handover to second best cell
- Separate Settable HO Margins - DTX downlink (uplink by MS)
- MS fast Power Down - Call Trace
- Speed Sensitive microcell HO - Double BCCH allocation lists
- GSM 12.21 standard Abis interface - Call Queuing
- Racal BSS Testing Support - Idle Channel interference
- TRX Hot Swap measurement and notification
- Enh Network Perf Statistics Module - Very early assignment
Serial Number Id - Handover margins for each cell
- Non-Encrypted Software Release
- GSM Data Services
2. BSS Release 3.0 (Calendar Q2, 1998) 4. BSS Release 5.0 (Calendar Q1, 1999)
ADDITIONAL FEATURES ADDITIONAL FEATURES
- WAVEXpress BSC Capacity - New E1/T1 module for up to 8 BTS per BSC E1/T1 card
Increase - -16Kb switching
- -30 TRXs per BSC - Enhanced Full Rate Vocoder
- -15 BTSs per BSC - Cost Reduced TRX with
- Antenna Receive Diversity - -frequency hopping
- Dynamic Power Control - -forward and reflected
- Directed Retry (phase 1 and 2 power detection
mobiles) - Paging Group Reorganization
- 3 TRXs per WAVEXpress BTS - Adjustment of uplink/downlink volume
- TurboWAVE Integrated high power - Automatic E1/T1 module hardware occupancy detect
- -2-16 Xxxxx - More flexible SDCCH Channel configuration
- -900 MHz and 1800 MHz - Dynamic Channel Allocation (DCA)
- WAVEXpress BTS Daisy Chain
- HDSL Modem (OEM Adjunct)
Page 57 of 58
DEVELOPMENT PLAN FOR NSS RELEASES
1. NSS Release 2.0 (Currently Shipping) 3. NSS Release 4.0 (Calendar Q3, 1998)
MAIN FEATURES ADDITIONAL FEATURES
- Support (2) BSC; (5) BTS; (2) TRX each - Support (5) BSC (BSS 4.0 rules),
- 500 Subs @ 0.1 Erlang max 30TRX
- 'A' Interface to interWAVE BSC - 1,000 Subs @ 0.1 Erlang
- HLR/VLR Support - 2,000 Subs @ 0.05 Erlang
- Authentication - Combo Switeh/BSC/BTS
- Ciphering - Support for (2) TRX
- Emergency Call - 200 Subs @ 0.025Erlang
- ISDN PRI Trunks - integrated HLR
- Dial Plan (E. 164) - modular expansion
- DTMF / MF Tones - Private A-Link Multiplexer
- Call Detail Records (CDRs) (PALIM)
- Abbreviated Dial Plan - QSIG (Adjunct)
- MFCR2 Trunks - Call Forwarding Conditional
- Call Barring (Operator Determined) - Call Waiting
- Call Hold
- Call Transfer
2. NSS Release 3.0 (Calendar Q2, 1998) - Trunk Group Management
- SMS (in investigation)
ADDITIONAL FEATURES - Voice Mail (in investigation)
- Integrated OMC-R-S-HLR - MAP for central HLR
- Call Forwarding Unconditional
- Data/Fax (intra WX)
- Callid (CLIR/CLIP) 4. NSS Release 5.0 (Calendar Q1, 1999)
- Echo Cancellation via external box ADDITIONAL FEATURES
- Performance Measurements - Support (5) BSC (BSS 5.0 rules),
max 60TRX
- 2,000 Subs @ 0.1 Erlang
- 5,000 Subs @ 0.04 Erlang
- Call Conference (multi-party)
- Multi-site WAVEXchange Networks
- 16 Kb switching
Page 58 of 58
AMENDMENT NO. 2 TO OEM AGREEMENT
This Amendment No. 2 (this "Amendment") to the Revised OEM Purchase Agreement
between the parties effective March 27. 1998 and previously amended by an
Amendment No. 1 effective April 29, 1998 (together the "Agreement") is made and
entered into this 21st day of April, 1999 by and between Northern Telecom
Limited, a company incorporated under the laws of Canada, and interWAVE
Communications International, a B. V. company incorporated under the laws of the
Netherlands.
The parties agree as follows:
1. The Agreement is amended by deleting Schedules 2, 9 and 10 and
replacing them with the attached Schedules.
2. Except as otherwise provided in this Amendment, all terms and
conditions of the Agreement remain in full force and effect.
3. This Amendment may be executed in a number of counterparts,
and all such counterparts taken together shall constitute one
and the same agreement.
IN WITNESS WHEREOF the parties have entered into this Amendment to the Agreement
the day and year first above written.
SIGNED BY
a duly authorized person on
behalf of Northern Telecom Limited
Signature }
-------------
Name }
-------------
Position }
-------------
Signature }
-------------
Name }
-------------
Position }
-------------
SIGNED BY
a duly authorized person on behalf of
interWAVE Communications International
Signature } /s/: xxxx
-------------
Name }Xxxxxxxx Xx
-------------
Position }Chairman,
CEO, President
---------------
SCHEDULE 2
1. PRICES AND PRODUCT DESCRIPTION
The prices detailed hereunder are firm and fixed for the calendar year
in which this Agreement commenced (the "Initial Period"). Sixty (60)
days prior to the expiration of the Initial Period, and each subsequent
twelve (12) month period the Parties shall review and agree upon the
prices that shall apply to Goods and Services for the next twelve (12)
month period. The prices listed below include warranty during the
Guarantee Period and technical support for 12 months.
The prices listed below are subject to amendments according to the
clauses below:
1.0.1 In the event that the market prices have substantially decreased, the
Purchaser may request good faith efforts from the Supplier to
re-negotiate prices accordingly. Such price reduction will become
effective for all following deliveries to the Purchaser.
1.0.2 The Purchaser will discuss with the Supplier any single opportunity for
the Supplier's. In the event that the single opportunity pricing is
granted to the Purchaser by the Supplier, it will not impact the
pricing at that time of other products.
1.0.3 For each of the calendar years, the Purchaser and Supplier will use
their best efforts to agree upon and execute an amendment to this
Agreement that sets forth the prices and volume discounts applicable
for such a calendar year. The Supplier guarantees a minimum of 5%
decrease of price for the Products from one calendar year to the next.
1.0.4 The Purchaser may agree to fund any cost reduction program with the
Supplier that provides an in year pay back to the Purchaser. The
benefit of the cost reduction will be shared equally between the
Purchaser and the Supplier and will be reflected in revised purchase
prices by the supplier from the time that the cost reduction is
realized in the product cost.
1.0.5 The Purchaser may agree to provide to the Supplier, where applicable,
opportunities to reduce costs by subcontracting to the Purchaser's
manufacturing facilities.
1.0.6 The Supplier agrees to provide the Purchaser with a monthly status on
their cost reduction programs in part with the ordering and forecast
review.
1.0.7 The Supplier represents to the Purchaser that the prices listed herein
for Goods and Services are no higher than those charged by the Supplier
to other similar parties who purchase similar goods for resale
(excluding exceptions for flexibility in markets and for the Customers
that the Purchaser is not pursuing, and other special circumstances on
an agreed upon individual basis). At the request of the Purchaser,
Supplier shall internally review its compliance with this requirement
on an annual calendar year basis and shall credit any overcharge to the
Purchaser in accordance with Schedule 1, Clause 24. In any event, the
Purchaser shall receive a minimum sixty-five (65)% discount off the
Supplier's then current list prices.
1.0.8 The Supplier shall provide a ten (10%) percent discount on Combos
ordered for installation into the "Corporate Market Applications" The
Supplier agrees to provide a 5% discount on Base Stations for accounts
and bids made by the Purchaser prior to the signing of this amendment
but not going forward.
1.0.9 The supplier will provide the following discounts for 1999. These
discounts are not incremental to the ten (10%) percent discount on
Combos for "Corporate Market Applications"
1
--------------------------------------- -----------------------------------------------
$0 to $7.0M 1998 prices (Net of credit)
--------------------------------------- -----------------------------------------------
$7.0M to $15.0M 8% discount
--------------------------------------- -----------------------------------------------
$15.0M and over 12% discount including Combos
--------------------------------------- -----------------------------------------------
2
1.1 Baseline Prices for Goods
------------------------------------------------------------------------- ------------------------------- -----------------------
DESCRIPTION OF GOODS PART NUMBER PRICE (US$)
------------------------------------------------------------------------- ------------------------------- -----------------------
WAVEXpress 1-TRX BTS (900MHz) M5120A $9,975
------------------------------------------------------------------------- ------------------------------- -----------------------
WAVEXpress 2-'TRX BTS (900MHz) M5220A $14,963
------------------------------------------------------------------------- ------------------------------- -----------------------
WAVEXpress 3-TRX BTS (900MHz) M5320A $22,444
------------------------------------------------------------------------- ------------------------------- -----------------------
WAVEXpress 1-TRX BTS (1800MHz) M5122 $9,975
------------------------------------------------------------------------- ------------------------------- -----------------------
WAVEXpress 2-TRX BTS (1800MHz) M5222 $14,963
------------------------------------------------------------------------- ------------------------------- -----------------------
WAVEXpress 3-TRX BTS (1800MHz) M5322 $22,444
------------------------------------------------------------------------- ------------------------------- -----------------------
WAVEXpress 1-TRX BTS (1900MHz) M5124 $9,975
------------------------------------------------------------------------- ------------------------------- -----------------------
WAVEXpress 2-TRX BTS (1900MHz) M5224 $14,963
------------------------------------------------------------------------- ------------------------------- -----------------------
WAVEXpress 3-TRX BTS (1900MHz) M5324 $22,444
------------------------------------------------------------------------- ------------------------------- -----------------------
TurboWAVE 4 Watt(900 MHz) M640154 $3,990
------------------------------------------------------------------------- ------------------------------- -----------------------
TurboWAVE 8 Watt(900 MHz) M640157 $3,990
------------------------------------------------------------------------- ------------------------------- -----------------------
------------------------------------------------------------------------- ------------------------------- -----------------------
TurboWAVE 4 Watt (1800 MHz) M640159 $3,990
------------------------------------------------------------------------- ------------------------------- -----------------------
TurboWAVE 8 Watt (1800 MHz) M640160 $3,990
------------------------------------------------------------------------- ------------------------------- -----------------------
------------------------------------------------------------------------- ------------------------------- -----------------------
BSPLUS 1-TRX 2W (900 MHz) tbd $27,360
------------------------------------------------------------------------- ------------------------------- -----------------------
BSPLUS 2-TRX 2W (900 MHz) tbd $34,865
------------------------------------------------------------------------- ------------------------------- -----------------------
BSPLUS 1-TRX 2W (1800 MHz) tbd $27,360
------------------------------------------------------------------------- ------------------------------- -----------------------
BSPLUS 2-TRX 2W (1800 MHz) tbd $34,865
------------------------------------------------------------------------- ------------------------------- -----------------------
BSPLUS 1-TRX 2W (1900 MHz) tbd $27,360
------------------------------------------------------------------------- ------------------------------- -----------------------
BSPLUS 2-TRX 2W (1900 MHz) tbd $34,865
------------------------------------------------------------------------- ------------------------------- -----------------------
------------------------------------------------------------------------- ------------------------------- -----------------------
WAVEXpress BSC-11 (2 E1) See Config Guide $14,060
------------------------------------------------------------------------- ------------------------------- -----------------------
WAVEXpress BSC-32 (5 E1) M5130 $23,608
------------------------------------------------------------------------- ------------------------------- -----------------------
WAVEXpress BSC-53 (8 E1) tbd $33,155
------------------------------------------------------------------------- ------------------------------- -----------------------
Combo 1-TRX (900 MHz) M5150A $13,618
------------------------------------------------------------------------- ------------------------------- -----------------------
Combo 2-TRX (900 MHz) M5152A $18,611
------------------------------------------------------------------------- ------------------------------- -----------------------
Combo 1-TRX (1800 MHz) M5152 $18,611
------------------------------------------------------------------------- ------------------------------- -----------------------
Combo 1-TRX (1800 MHz) M5252 $13,618
------------------------------------------------------------------------- ------------------------------- -----------------------
Combo 1-TRX (1900 MHz) M5154 $18,611
------------------------------------------------------------------------- ------------------------------- -----------------------
Combo 2-TRX (1900 MHz) M5254 $13,618
------------------------------------------------------------------------- ------------------------------- -----------------------
WAVEXchange NSS -11 (2 E1) See Config Guide $12,350
------------------------------------------------------------------------- ------------------------------- -----------------------
WAVEXchange NSS -32 (5 E1) M5060 $21,375
------------------------------------------------------------------------- ------------------------------- -----------------------
WAVEXchange NSS -53 (8 E1) tbd $30,400
------------------------------------------------------------------------- ------------------------------- -----------------------
WAVEView,OMC-Ultra 10 M640191 $22,487
------------------------------------------------------------------------- ------------------------------- -----------------------
------------------------------------------------------------------------- ------------------------------- -----------------------
Combo S/W - 1 TRX S500200N $6,983
------------------------------------------------------------------------- ------------------------------- -----------------------
Combo S/W - 2 TRX S500300N $12,487
------------------------------------------------------------------------- ------------------------------- -----------------------
WAVEXchange NSS S/W- Base S500400N $27,712
------------------------------------------------------------------------- ------------------------------- -----------------------
WAVEXchange NSS S/W- Base S500500N $3,325
------------------------------------------------------------------------- ------------------------------- -----------------------
WAVEView,OMC-200 S/W - Base S500600N $10,474
------------------------------------------------------------------------- ------------------------------- -----------------------
WAVEView,OMC-200 S/W - per TRX (not to exceed $70k/ OMC) S500700N
------------------------------------------------------------------------- ------------------------------- -----------------------
3
1.21.2 Prices for Software Release Upgrades
The fee for upgrading from Release 4.x to 5.x is as follows-
US $400 per TRX for the BSS
US $100 per TRX for the OSS
US $1000 per TRX for the NSS/Combo
1.3 PRICES FOR ENGINEERING SERVICES
EMERGENCY CALL OUT SERVICES *
------------------------------ ----------------------- --------------------- ------------------------------ -----------------------
EMERGENCY CALL OUT STANDARD WEEKNIGHTS NIGHTS/WEEKENDS SUNDAYS/HOLIDAYS
------------------------------ ----------------------- --------------------- ------------------------------ -----------------------
($/HOUR) 8AM-5PM 5PM-11PM 11PM-8AM
------------------------------ ----------------------- --------------------- ------------------------------ -----------------------
------------------------------ ----------------------- --------------------- ------------------------------ -----------------------
Junior Engineer $90 $110 $125 $150
------------------------------ ----------------------- --------------------- ------------------------------ -----------------------
Engineer $110 $130 $150 $185
------------------------------ ----------------------- --------------------- ------------------------------ -----------------------
Sr. Engineer/Spec. $150 $180 $185 $250
------------------------------ ----------------------- --------------------- ------------------------------ -----------------------
Project Manager $190 $225 $250 $315
------------------------------ ----------------------- --------------------- ------------------------------ -----------------------
*Rates do not include transportation, nor a Per Diem for
food and lodging, nor out-of-pocket expenses for personnel
rendering such services. Minimum 4 hour call out.
LEVEL 1 CALL-IN SUPPORT*
------------------------------ ----------------------- --------------------- ------------------------------ -----------------------
CALL IN STANDARD WEEKNIGHTS NIGHTS/WEEKENDS SUNDAYS/HOLIDAYS
------------------------------ ----------------------- --------------------- ------------------------------ -----------------------
($/HOUR) 8AM-5PM 5PM-11PM 11PM-8AM
------------------------------ ----------------------- --------------------- ------------------------------ -----------------------
Sr. Engineer/Spec. $150 $180 $185 $250
------------------------------ ----------------------- --------------------- ------------------------------ -----------------------
Project Manager $190 $225 $250 $315
------------------------------ ----------------------- --------------------- ------------------------------ -----------------------
*Purchaser shall reimburse Supplier for support provided
that is deemed not consistent with the responsibilities of
the Supplier for support. This shall include, but not be
limited to, supporting Xxxxx 0 type issues such as
configuration, installation and commissioning as well as
supporting non-Supplier provided equipment.
4
1.4 PRICES FOR SPARES
---------------------------------------------------------------------------------------------------------------------------
PART NUMBER DESCRIPTION OF FIELD REPLACEABLE UNIT SPARES PRICE (US$)
---------------------------------------------------------------------------------------------------------------------------
M340220 Clock, 13MHz $1,302
---------------------------------------------------------------------------------------------------------------------------
M340128 X0, Xxxxx, 000 Xxx for BTS $5,387
---------------------------------------------------------------------------------------------------------------------------
M340126 X0, Xxxxx, 000 Xxx for BSC or MSC $5,387
---------------------------------------------------------------------------------------------------------------------------
M340129 X0, Xxxxx, 00 Xxx for BTS $5,387
---------------------------------------------------------------------------------------------------------------------------
M340127 X0, Xxxxx, 00 Xxx for BTS or MSC $5,387
---------------------------------------------------------------------------------------------------------------------------
M640180 E1, Abis with 2 Traus, 120 Ohm for BSC $7,980
---------------------------------------------------------------------------------------------------------------------------
M640181 E1, Abis with 2 Traus, 75 Ohm for BSC $7,980
---------------------------------------------------------------------------------------------------------------------------
M640182 E1, Abis with 4 Traus, 120 Ohm for BSC $10,735
---------------------------------------------------------------------------------------------------------------------------
M640183 E1, Abis with 4 Traus, 75 Ohm for BSC $10,735
---------------------------------------------------------------------------------------------------------------------------
M640178 E1, PSTN w/ DSP, 120 Ohm for MSC $7,980
---------------------------------------------------------------------------------------------------------------------------
M640179 E1, PSTN w/ DSP, 75 Ohm for MSC $7,980
---------------------------------------------------------------------------------------------------------------------------
M340123 IWP W/O Hard disk $3,040
---------------------------------------------------------------------------------------------------------------------------
tbd IWP 64 MB, 810 w/HD $3,772
---------------------------------------------------------------------------------------------------------------------------
M640034 Power supply 350W, Hi24, 115v AC $1,302
---------------------------------------------------------------------------------------------------------------------------
M640035 Power supply 350W, Hi24, 230v AC $1,302
---------------------------------------------------------------------------------------------------------------------------
M640026 Power supply 350W, Hi24, -48V DC $1,302
---------------------------------------------------------------------------------------------------------------------------
M640027 Power Supply 50A, 115V AC $1,577
---------------------------------------------------------------------------------------------------------------------------
M640028 Power Supply 50A, 230V AC $1,577
---------------------------------------------------------------------------------------------------------------------------
M340103 RFD, 900 MHz $2,993
---------------------------------------------------------------------------------------------------------------------------
M340088 RFD, 1800 MHz $2,993
---------------------------------------------------------------------------------------------------------------------------
M340119 RFD, 1900 MHz $2,993
---------------------------------------------------------------------------------------------------------------------------
M640116 TRX 900 MHz $7,481
---------------------------------------------------------------------------------------------------------------------------
M640117 TRX 1800 MHz $7,481
---------------------------------------------------------------------------------------------------------------------------
M640145 TRX 1900 MHz $7,481
---------------------------------------------------------------------------------------------------------------------------
M640025 Fan, 12V Power Supply $428
---------------------------------------------------------------------------------------------------------------------------
M640021 Cable kit, full set, indoor $428
---------------------------------------------------------------------------------------------------------------------------
M640047 BTS Chassis $1,758
---------------------------------------------------------------------------------------------------------------------------
M640048 BSC Chassis $1,758i
---------------------------------------------------------------------------------------------------------------------------
M640173 Front Panel Blanks (4 pack) 70.00
---------------------------------------------------------------------------------------------------------------------------
M640055 Wall Mount Kit $214
---------------------------------------------------------------------------------------------------------------------------
M640050 Rack Mount kit 90' $219
---------------------------------------------------------------------------------------------------------------------------
M640065 Table Mount Kit $95
---------------------------------------------------------------------------------------------------------------------------
5
1.5 PRICES FOR POST GUARANTEE REPAIR SERVICE
----------------------------------------------------------------------------------------------------------------------------
Part Number Description of Field Replaceable Unit Repair Price (US$)
----------------------------------------------------------------------------------------------------------------------------
M340220 Clock, 13MHz $600
----------------------------------------------------------------------------------------------------------------------------
M340014 E-l, Long Haul, 2 Port $1,900
----------------------------------------------------------------------------------------------------------------------------
M340098 E-1 with 2 TRAUS $3,200
----------------------------------------------------------------------------------------------------------------------------
M340121 IWP $1,300
----------------------------------------------------------------------------------------------------------------------------
M640034 Power supply 350W, Hi24, 115v AC $450
----------------------------------------------------------------------------------------------------------------------------
M640035 Power supply 350W, Hi24, 230v AC $450
----------------------------------------------------------------------------------------------------------------------------
M640026 Power supply 350W, Hi24, -48V DC $450
----------------------------------------------------------------------------------------------------------------------------
M640027 Power Supply 50A, 115V AC $500
----------------------------------------------------------------------------------------------------------------------------
M640028 Power Supply 50A, 230V AC $500
----------------------------------------------------------------------------------------------------------------------------
M340063 RF Distribution 900 MHz $350
----------------------------------------------------------------------------------------------------------------------------
M340088 RF Distribution 1800 MHz $350
----------------------------------------------------------------------------------------------------------------------------
M340119 RF Distribution 1900 MHz $350
----------------------------------------------------------------------------------------------------------------------------
M640116 TRX 900 MHz $2,500
----------------------------------------------------------------------------------------------------------------------------
M640117 TRX 1800 MHz $2,500
----------------------------------------------------------------------------------------------------------------------------
M640145 TRX 1900 MHz $2,500
----------------------------------------------------------------------------------------------------------------------------
M640025 Fan, 12V Power Supply N/A
----------------------------------------------------------------------------------------------------------------------------
M640021 Cable kit, full set, indoor N/A
----------------------------------------------------------------------------------------------------------------------------
M640048 WAVEXpress Chassis N/A
----------------------------------------------------------------------------------------------------------------------------
1.6 PRICES FOR TRAINING
Customer Training will be provided if available resources permit as it
is expected that Purchaser will train its own personnel and personnel
of its Customers.
------------------------------------------------------------------------------------------------------------------
PRICE
SERIES COURSE DAYS (PER STUDENT)
------------------------------------------------------------------------------------------------------------------
T100 GSM OVERVIEW 2 $1000USD
------------------------------------------------------------------------------------------------------------------
T300 OMC SYSTEM ADMINISTRATION 3 $1500USD
------------------------------------------------------------------------------------------------------------------
T400 OMC-RADIO NETWORK OPERATIONS 3 1500USD
------------------------------------------------------------------------------------------------------------------
T500 BSS OPERATIONS & MAINTENANCE 3 $1500USD
------------------------------------------------------------------------------------------------------------------
T600 BSS INSTALLATION & COMMISSIONING 1 $500USD
------------------------------------------------------------------------------------------------------------------
T700 NIB OPERATIONS 5 $2500USD
------------------------------------------------------------------------------------------------------------------
T800 OMC NETWORK OPERATIONS 5 $2500USD
------------------------------------------------------------------------------------------------------------------
T900 WXC SWITCH OPERATIONS & MAINTENANCE 5 $2500USD
------------------------------------------------------------------------------------------------------------------
T510 RELEASE 4 BSS DELTA 2 $1000USD
------------------------------------------------------------------------------------------------------------------
See Supplier's Training Guide for further details.
6
1.7 PRICES FOR DOCUMENTATION
A. Training Material
Includes Instructor and Student Guide
B. Documentation Cost
$52,500 Annual Fee. All documentation to be distributed on
electronic media.
C. Feature Guide
BSS, NSS, and OSS feature guides for each software release
D. "Nortelization" Cost
Where Nortelize means replace with interWAVE specific names,
the Nortel version of those names, the supplier shall agree to
"Nortelize", customer documentation as follows:
Initial Customization Setup Fee (NRE type) $US 30,000
For each "set" (defined as document version,
a,b,c,d etc.) $US 15,000
Where the Supplier issues an unplanned increment to the documentation
-- for example, to correct errors of documentation, or to document
changed behavior of the system following patches -- the supplier shall
provide the "Nortelized" documentation update for that revision at no
incremental cost to Nortel Networks.
Each "set" of documents shall consist of the following documents for
each release:
Installation and Commissioning guides:
WAVEXpress/BTS
WAVEXpress/BSC
WAVEXchange
WAVEView/OMCR Setup & System Administration Guide
WAVEView/OMCR Operations and Maintenance Guide
Craft PC Guide
InterWAVE Parameter Dictionary
BSS Maintenance Guide
WAVEView System Administrator's Guide
BSS Network Implementation Guide
InterWAVE Glossary of Terms
The Purchaser shall provide a list or mapping of all of the items that
the Purchaser would like converted from the Supplier's terms to the
Purchaser's terms to "Nortelize" the documents.
7
1.8 PRICES FOR GUARANTEE PERIOD EXTENSION
---------------------- --------------------------------------- -------------------------------------------------------
STANDARD PERIOD OF EXTENSION
---------------------- --------------------------------------- -------------------------- ----------------------------
FIRST YEAR ONE YEAR TWO YEARS
---------------------- --------------------------------------- -------------------------- ----------------------------
Equipment Return to Factory - No Charge 1.33% of Price N/A
---------------------- --------------------------------------- -------------------------- ----------------------------
---------------------- --------------------------------------- -------------------------- ----------------------------
1.9 PRODUCT DESCRIPTIONS
See Schedule 10
1.9.1 Notwithstanding Clause 1 above, the prices for individual
Purchase Orders once issued shall remain firm and fixed for
their duration, unless otherwise provided for by operation of
any other term of the Agreement.
2.0 PRICING OF ENHANCEMENTS
2.1 Where the Supplier enhances the Goods above and
beyond the requirements of the relevant
Specification, including the new features or
facilities, the Supplier shall state in writing the
effect such enhancement will have on the Goods and
what adjustment, if any, will be required to the
Agreement. The Supplier shall furnish such details in
a time scale agreed between the Parties.
2.2 Where the Supplier shows that an enhancement involves
a change in the price or lead times for the Goods,
the Supplier shall make best efforts as to the
reasonableness of the changes arising therefrom.
2.3 The Supplier shall demonstrate best faith efforts to
ensure that the price for enhancements does not
include any work that should be performed under any
other term of the Agreement or any Purchase Order.
This shall include, but not be restricted to,
enhancements in respect of operational support,
repair, build management and guarantee.
3.0 FORECASTING MECHANISM FOR GOODS
3.1 DELIVERIES IN 1999. Prior to acceptance by the
supplier of any Orders issued by the purchaser, the
Parties shall review the Orders on a case by case
basis for 1999 to mutually agree upon the monthly
Delivery Dates. The monthly forecast(s) for 1999 for
Products provided to the supplier other than those
forecasts specified as Orders are for informational
purposes only. The purchaser further agrees to
provide the supplier with the shortfall between firm
Orders and monthly/quaterly/annual commitments to
purchase. In the second month of the quarter, the
Purchaser shall place orders to meet the commitment
for the quarter.
8
3.2 Deliveries in 2000. Prior to the first day of the
ninth month of 1999, the purchaser shall provide to
the supplier, a twelve (12) month forecast of the
quantities of Products required and the Delivers
Dates within each month for such Products commencing
in the first month of 2000 (the "Forecast"). This
first twelve (12) month Forecast shall include any
deliveries for Orders accepted by the purchaser in
1999, and by mutual agreement at the time of the
Order having a Delivery Date in 2000. Thereafter the
purchaser shall provide to the supplier, prior to the
first day of each month, an adjusted twelve (12)
month rolling Forecast setting forth the Delivery
Dates within each month and the unit quantities of
Products for such Delivery Dates that the purchaser
expects it will Order from the supplier commencing in
the first month of 2000.
3.3 With respect to Products forecasted for which the
purchaser has not issued Orders, the purchaser may
adjust the Forecast from one Forecast to the next
within the following limitations:
FORECAST MONTH FORECAST ADJUSTMENT
-------------- -------------------
Month 1-2 zero
Months 3-5 25%
Months 6-12 no limitation
3.4 The purchaser shall make Reasonable Efforts to ensure
that the adjustments to the Forecasts pursuant to
Article 3.3 shall be no more onerous than the
adjustments the purchaser must bear in the normal
course of the Purchaser's operations.
3.5 The purchaser shall ensure that there are sufficient
Orders placed with the supplier in advance of the
Delivery Date to provide for the delivery within the
Maximum Delivery Period of all of the Products which
the purchaser forecasted to be delivered during the
first month of each Forecast in accordance with
Article 3.3. Except as set forth above, the purchaser
shall not be obligated to issues Orders based on
Forecasts except as it supports minimum quarterly
contractual commitments. For the purposes of this
Article 3, the purchaser shall in the normal course
place Orders through a central purchaser order point.
3.6 The supplier shall accept any Order issued by the
purchaser for Products for delivery within the
Maximum Delivery Period to the extent such Products
were within the most recent Forecast. If the
purchaser orders Products in excess of the number of
units contained in the Forecast, the supplier and
purchaser shall mutually agree on the Delivery Dates
of such Orders, but the supplier shall use Reasonable
Efforts to ensure that the Delivery Date for Products
not Forecasted does not exceed sixty (60) consecutive
days. All deliveries of Orders shall be FOB the
Shipping Location.
3.7 The Purchaser, wherever possible will provide monthly
a rolling 12 month forecast, broken down by country,
of their requirements as precise as possible of the
Goods to the Supplier within forty-five days of
execution of this amendment. The Purchaser shall use
best efforts to forecast at least the amounts set
forth in the Purchase Baseline in Schedule 9. The
Supplier will give the Purchaser an overview of their
position with respect to supporting compliance into
the country's market.
9
SCHEDULE 9
4.0 PURCHASING BASELINE AND EXCLUSIVITIES
4.1 The Purchaser's Purchase Baseline is defined as follows:
-----------------------------------------------------------------------------------------------------
USSM 1999 2000
Calendar Quarter Q1 Q2 Q3 Q4 Q1 Q2 Q3 Q4
Quarterly Revenue 1.3 2.5 2.7 3.5 5 7 8 10
Annual Revenue 10 31
Cumulative Revenue 10 41
-----------------------------------------------------------------------------------------------------
4.2 The Purchase Baseline can be adjusted, by good faith
negotiations, if any material microcellular product milestones
as defined in the Development Plan are not met within 90 days
of the target date stated in Schedule 10. It is further agreed
that if the Supplier is unable to deliver "support for EFR
Ready Hardware in Release 4.5" the purchase baseline for 1999
can be reduced by $1 million in each of quarters 3 and 4.
Also, if the agreed upon subset of MAP E is not delivered in
Release 5 NSS, then the purchase baseline for 2000 can be
reduced by $1.25 million per quarter. Furthermore, if the
Supplier is unable to meet GPRS, ISUP, and Freq. Hopping for
Release 6 the purchase baseline may be reduced by $5.0 million
in the second half of the year 2000. These reductions shall
not change the conditions in clause 4.3 below.
4.2.1 Both companies agree that they will work toward
defining and developing solutions to features (such
as tromboning ) that are required to meet market
opportunities.
4.3 If the purchases by the Purchaser, during any quarter of 1999
or 2000 are less than those indicated in the Purchase Baseline
above, the Purchaser shall pay the Supplier, at the end of
such quarter, a sum equal to 38.1% of the Price of the
shortfall of Goods not purchased by the Purchaser ("Shortfall
Payment")
4.3.1 To the extent that the Purchaser makes up the
shortfall with excess in the following quarter (over
the purchase baseline for such following quarter),
the Supplier will credit the Purchaser for the
shortfall payment.
4.3.2 The Purchaser shall not be obligated to pay for any
shortfalls due to the Supplier's failure to deliver
Goods which meet mutually agreed acceptance criteria.
4.4 Reflecting the fact that the Purchaser will supply
substantial, valuable and proprietary technology, technical
information and know-how to the Supplier pursuant to the
Technical Information Agreement being entered into between the
parties, the Supplier shall be restricted from entering into
an OEM or distributor agreement with Nokia or Ericsson until
December 31, 1999 ("Limited Exclusivity"). After such time,
the Purchaser's Limited Exclusivity shall be terminated only
if the annual purchase of Goods by the Purchaser is less than
eighty (80%) percent of $50 million, $70 million and $95
million at the end of any of the calendar years 2000, 2001, or
2002, respectively. The purchases by the Purchaser in excess
of $10 million in the year 1999 can be counted towards
fulfilling the requirement to purchase 80% of $50 million in
the year 2000 to retain the Limited Exclusivity. Any overage
in subsequent years will be applied on the same basis. Nothing
in this Agreement shall be construed to prevent the Supplier
from developing other products, whether or not competing with
the Goods, for supply to Nokia or Ericsson or any other
purchaser, provided that the Supplier complies with all
provisions of this Agreement, the Technical Information
Agreement and the Patent License Agreement.
10
4.4.1 If. however, the Purchaser's failure to meet an
eighty (80%) percent annual target is attributable
solely to the Supplier's delay in meeting a material
microcellular product milestone, or the Supplier's
delay in delivering goods which meet mutually agreed
acceptance criteria, the annual period for
determining achievement of the annual target shall be
extended for the length of such delay.
4.5 Product markets
4.5.1 The Supplier warrants that it has obtained the
necessary approvals, including but not limited to GSM
11.21 certification, CE Xxxx, and interconnect. These
approvals allow the goods to be sold into many
countries. For the countries where the incremental
requirements are limited to "paper filings" and not
substantive testing and development, the Supplier
agrees to support entry into those countries.
4.5.2 The Supplier and Purchaser further agree that it will
put in place a mechanism by which the two parties can
address the requirements needed for the countries
where the Supplier currently does not meet all of the
requirements to enter the countries.
4.5.3 The Supplier and Purchaser agree to use the framework
below to identify and classify the countries.
4.5.3a the products may be sold today without
additional regulatory modifications;
4.5.3b the product is being actively marketed, but
where incremental regulatory activities may
be required to sell;
4.5.3c the Purchaser intends to market ultimately,
and where incremental regulatory activities
may be required to sell;
4.5.3d The Purchaser does not plan to market the
products or where the Seller or Purchaser is
legally prohibited from selling the product.
The current view of the markets being addressed is summarized in the table
below:
SECTION 4.5.3aCOUNTRIES SECTION 4.5.3b COUNTRIES SECTION 4.5.3c COUNTRIES SECTION 4.5.3d COUNTRIES
----------------------- ------------------------ ------------------------ ------------------------
Europe: All countries except Asia: All countries not Cuba
Europe: France, United Serbia specifically named
Kingdom, Luxembourg,
Netherlands, Ireland, Austria
Asia: Taiwan, Hong Kong, Asia: China, India, Philippines, Caribbean and Latin America: Iraq
Thailand Hong Kong, Taiwan All countries not specifically
named
Australia Iran
Americas: Canada, USA, Brazil, Japan
Mexico, French Guiana
Central African Republic, South Middle East and Africa: All Libya
Africa. Congo, Somalia countries, unless specifically
excluded
Xxxxx Xxxxx
00
Xxxxxx
Xxxxx Xxxxx
Sudan
Syria
4.5.4 It is understood that the list of countries will change over
time. It is agreed that a more precise view of near term
requirements for new market entry will be provided as part of
the forecast procedure defined in Schedule 2 and regulatory
compliance procedures defined in Schedule 1 of this agreement.
12
SCHEDULE 10
5.0 PRODUCT DESCRIPTIONS
EQUIPMENT
1. WAVEXpress BTS
SPECIFICATIONS
Cellular Standards Supported ETSI GSM Phase 2
Features Supported Base transceiver station (BTS); GSM RF management, data and
fax, short message service, antenna receive diversity, encryption,
optional power supply redundancy
Transmit RF Frequency GSM 935- 960 MHz
DCS 1805 - 1880 MHz
Receive RF Frequency GSM 890- 000 XXx
XXX0000 - 0000 XXx
Xxxxxxx Power Up to 2.0 xxxxx at antenna port (may be extremely amplified
for greater transmit power)
Cell Size (Range) Up to 3 kilometers maximum radius depending on topography
and environment
Number of TRXs per BTS 1 - 3
Channels per BTS 7- 22 simultaneous
Mobile Stations Supported GSM/DCS-compliant mobile station (Phase 1, 2 or 2+)
GSM/PCS Interfaces Supported Abis and Radio (Phase 2)
Processors Distributed Motorola 68040 and 68360
Mobile Interfaces Supported GSM full-rate RF interface, 2400 bps -- 9600 bps transparent
data/FAX
Trunk Network Interfaces G.703-compliant. E1, T1 planned
Power Requirements Power consumption: 150 xxxxx, 110/220 volts 50-60 Hz ac,
-48 volts dc planned
Dimensions (h x w x d) 55 x 23 x 41 centimeters (21.5 x 9 x 16 inches)
Weight 20 kg (44 lbs.)
Operating Environment Temperature: -10DEG. to 45DEG.C
Humidity: 10% to 90% noncondensing,
10% to 95% noncondensing (outdoor)
2. WAVEXpress BSC
SPECIFICATIONS
Cellular Standards Supported ETSI GSM Phase 2
Features Supported Base station controller (BSC); GSM RF power management,
data and fax, short message service, optional CPU and power
supply redundancy, optional local transcoding (TRAU)
BTS RF Protocols Supported GSM 900
DCS 1800
Number of E1/T1 Ports per BSC 2 - 14
Number of BTSs per BSC 1 - 20
13
Number of TRXs per BSC 1 - 20, 1 - 30
BTSs Supported interWAVE WAVEXpress/BTS others supporting GSM Abis
interface (requires verification testing with interWAVE)
Mobile Stations Supported GSM/DCS-compliant mobile station (Phase 1, 2 or 2+)
GSM/PCS Interfaces Supported A and Abis
Processors Distributed Motorola 68040 and 68360
Mobile Interfaces Supported GSM full-rate RF interface, 2400 bps- 9600 bps transparent
data/FAX
Trunk Network Interfaces G.703-compliant. El, T1 planned
Power Requirements Power consumption: 150 xxxxx, 110/220 volts 50-.60 Hz ac,
-48 volts dc planned
Dimensions (h x w x d) 55 x 23 x 41 centimeters (21.5 x 9 x 16 inches)
Weight 20 kg (44 lbs.)
Operating Environment Temperature: -10DEG. to 45DEG.C
Humidity:. 10% to 90% noncondensing,
10% to 95% noncondensing (outdoor)
3. TURBOWAVE BTS
SPECIFICATIONS
Cellular Standards Supported ETSI GSM Phase 2
Features Supported Base transceiver station (BTS); GSM RF management, data and
fax, short message service, encryption,
optional power supply redundancy
Transmit RF Frequency GSM 935 - 960 MHz
DCS 1805- 1880 MHz
Receive RF Frequency GSM 890- 915 MHz
DCS 0000 - 0000 XXx
Xxxxxxx Power Up to 4.0 xxxxx at antenna port with 2 TRXs and 1 antenna
Up to 8.0 xxxxx at antenna port with 2 TRXs and 2 antenna
Up to 16.0 xxxxx at antenna port with 1 TRX and 1 antenna
Cell Size (Range) Up to 15 kilometers maximum radius depending on topography
and environment
Number of TRXs per BTS 1 - 2
Channels per BTS 7- 14 simultaneous
Mobile Stations Supported GSM/DC-compliant mobile station (Phase 1, 2 or 2+)
GSM/PCS Interfaces Supported Abis and Radio (Phase 2)
Processors Distributed Motorola 68040 and 68360
Mobile Interfaces Supported GSM full-rate RF interface, 2400 bps- 9600 bps transparent
data/FAX
Trunk Network Interfaces G.703-compliant E1, T1 planned
Power Requirements Power consumption: 250 xxxxx, 110/220 volts 50-60 Hz ac,
-.48 volts dc planned
Dimensions (h x w x d) 55 x 23 x 41 centimeters
(21.5 x 9 x 16 inches)
Weight 20 kg (44 lbs.)
Operating Environment Temperature: -10 to 45DEG.C
Humidity:. 10% to 90% noncondensing,
10% to 95% noncondensing (outdoor)
14
4. WAVEXCHANGE
SPECIFICATIONS
Applications GSM mobile networks, wireless local loop, or wireless PBX
adjunct
Base Functionality Speech Services: GSM900/DCS1800/PCS1900 (future)
Inter/lntra BSC handover,
Integral VLR/HLR per GSM 3.08 and GSM 9.02 MAP
Call management (GSM 4.08)
Mobility management (GSM 4.08)
- Ciphering, identification, location update, identification,
IMSI attach/detach, TMS1 reallocation,
BSSMAP per GSM 8.08, both connection/connectionless
Unified OMC, integrating OMC-S/OMC-R applications
Call data records per GSM 12.05, ASCII formatted
Performance per GSM 12.04, with proprietary extensions
Alarm/event management, with proprietary extensions
Base Platform 9-slot VME backplane with TDM bus (16 lines x 8Mbps)
IWP Module (68040 CPUI68360 Comm. Proc.)
- OMC connectivity via Ethernet DB15 connector
- Craft Interface (RS-232c 9-pin); external alarms (RJ45)
- Hard disk drive and flash memory
Dual port El/T1 module (68360 Comm. Proc.) planned
- Support for 14 E1 ports per chassis
- Integral 64kbps time/space switch"
- Available with BNC 75 omega or DB15 120 omega connectors
- Echo cancellation/tones available
- 1->N trunk redundancy (future)
Redundant power supply (optional)
Services Emergency calls
Call Barring (Operator Determined - ODB), GSM 2.88
Call Forwarding Unconditional (CFU - OD), GSM 2.82
Intra WAVEXchange FAX/data services, GSM 2.02/2.03
Performance Call processing capabilities: 100 Erlangs providing -8000 BHCA
Performance goals: per GSM 3.05
Environmental Temperature: 0DEG.C to 45DEG.C
Humidity 0% to 95%, noncondensing
5. Combo
SPECIFICATIONS
Applications GSM mobile networks, wireless local loop, or wireless PBX
adjunct
Base Functionality Speech Services: GSM900/DCS1800/PCS1900 (future)
Integral VLR/HLR per GSM 3.08 and GSM 9.02 MAP
Call management (GSM 4.08)
Mobility management (GSM 4.08)
- Ciphering, identification, location update, identification, IMSI
attach/detach, TMSI reallocation,
15
BSSMAP per GSM 8.08, both connection/connectionless
Call data records per GSM 12.05, ASCII formatted
Performance per GSM 12.04, with proprietary extensions
Alarm/event management, with proprietary extensions
Features Supported GSM RF management, data and fax, short message service,
encryption,
Transmit RF Frequency GSM 935- 960 MHz
DCS 1805 - 1880 MHz
Receive RF Frequency GSM 890- 915 MHz
DCS 1710- 1785 MHz
Antenna Power Up to 16.0 xxxxx at antenna port with 1 TRX and 1 antenna
Cell Size (Range) Up to 15 kilometers maximum radius depending on topography
and environment
Number of BTS per Combo 1 - 3 planned
Number of TRXs per Combo 1 - 2, 1 - 10 planned (3TRX per BTS and 1TRX in Combo)
Channels per Combo 7 - 14 simultaneous
Mobile Stations Supported GSM/DCS- compliant mobile station (Phase 1, 2 or 2+)
Base Platform 9-slot VME backplane with TDM bus (16 lines x 8Mbps)
IWP Module (68040 CPU/68360 Comm. Proc.)
- OMC connectivity via Ethernet DB15 connector
- Craft Interface (RS-232c 9-pin); external alarms (RJ45)
- Hard disk drive and flash memory
Dual port E1/T1 module (68360 Comm. Proc.) planned
- Support for 14 E1 ports per chassis
- Integral 64kbps time/space switch
- Available with BNC 75omega or DB15 120omega connectors
- Echo cancellation/tones available
- 1->N trunk redundancy (future)
Redundant power supply (optional)
Services Emergency calls
Call Barring (Operator Determined - ODB), GSM 2.88
Call Forwarding Unconditional (CFU - OD), GSM 2.82
GSM/PCS Interfaces Supported Abis and Radio (Phase 2)
Processors Distributed Motorola 68040 and 68360
Mobile Interfaces Supported GSM full-rate RF interface, 2400 bps - 9600 bps transparent
data/FAX
Trunk Network Interfaces G.703-compliant. E1, T1 planned
Power Requirements Power consumption: 250 xxxxx, 110/220 volts 50-60 Hz ac,
-48 volts dc planned
Dimensions (h x w x d) 55 x 23 x 41 centimeters (21.5 x 9 x 16 inches)
Weight 20 kg (44 lbs.)
Operating Environment Temperature: -10DEG. to 45DEG.C
Humidity 10% to 90% noncondensing,
10% to 95% noncondensing (outdoor)
6. WAVEView OMC
APPLICATIONS
Configuration Management
- Region-wide configuration database
- Modification of network elements and network parameters
- Remote download of software to network elements
16
- Audit functions that upload current configuration of network elements
- Region map that displays the network elements and connectivity
- Addition and deletion of network elements (MSC, BSC, and BTS)
- Full support of cell and frequency configuration management
- Region map displays current network element states
Fault Management - Real-time monitoring of the network for faults and problems
- Visual indication of problem areas using detailed views
- Polling of the wireless access network to determine the status of
the operations and maintenance communication links
- Maintenance of daily event logs
- Tracking of active alarm conditions
- Audible alarms based on severity
- Clearing and acknowledgment of alarms
- Alarm seventy can be altered
Performance Management - Collects network performance statistics
- Building of a knowledge base of network resource usage for
strategic business and network planning decisions
- Use of performance data for troubleshooting and monitoring
network performance
Data Import and Export - Integrates with existing network management support tools
- Import cell configuration data from existing cell planning tools
- Export of network performance data and statistics to cell planning tools
- Periodic collection BSC/BTS statistics into ASCII files for export to
external tools
- Export of historical event and alarm logs
Access Security Management - Definition of user access privileges settable by the administrator
- Definition of different classes of WAVEView users, privileges, and passwords
- Two levels of security control beyond normal UNIX login security
* Password authorized use of WAVEView
* User restrictions based on domains and object class access control
17
DEVELOPMENT PLAN
RELEASE 4.5
SCHEDULE
interWAVE's Gate 5 date: August 31, 1999
interWAVE's GA date: October 3l, 1999
Beta software to Nortel: August 15, 1999
Nortel's VO start date: September 13, 1999
Nortel's Ramp Start date: October 15, 1999
RELEASE 4.5 NSS
R2 Country specific variants
MAP/D, per interWAVE Functional Specifications Roaming - 98-WX-2010,
MAP 98-WX-2000 and SS7 Enhancements for Roaming -
Intelligent Call Management, per interWAVE Functional
Specification 840165FS-00 Dated 3/16/99.
E164+Handling, per interWAVE Functional Specifications El64
99-WX-xxx dated 4/9/99 and + Key Handling for GSM Handset
International Access Prefix dated 3/31/99
RELEASE 4.5 BSS
Enhanced Full Rate Vocoder (EFR)-ready hardware
RELEASE 4.5 OSS
Support for R4.5 NSS & BSS Features.
RELEASE 5
SCHEDULE
interWAVE's Gate 5 date: November 30, 1999
interWAVE's GA date: Xxxxx 00, 0000
Xxxx software to Nortel: November 15, 2000
Nortel's VO start date: January 17, 2000
Nortel's Ramp Start date: February 28, 2000
RELEASE 5 NSS
R2 and ISDN country specifics
AoC, AoCC, AoCI (CAI) for Prepaid
MAP E, Inter MSC HO*
Full implementation of EFR
American NSS and North American Combo with defined feature set
NSS Capacity Enhancement - 100E NSS
PBX connectivity, ISDN master
Purge VLR
Compliant GSM 12.04 CDR
E1/T1 hot swap
RELEASE 5 BSS
Full implementation of EFR
Static Uplink/downlink volume control
North American BSS, including ANSI BSC and 1900
MHz BTS with T1
E1/ T1 hot swap
RELEASE 5 OSS
OMC Off-site alarming (pager dial-up modem),
OMC audible alarm
Call Trace Debugging
Historical Alarm Browser
Improved Manageability of the Turbo
On Line Help
Dual NSS- BSS Actions
Support for R5 NSS & BSS Features
RELEASE 6
SCHEDULE
interWAVE's Gate 5 date: June 30, 2000
interWAVE's GA date: September 17, 2000
Beta software to Nortel: June 16, 2000
Nortel's VO start date: July 17, 2000
Nortel's Ramp Start date: August 28, 2000
RELEASE 6 NSS, BSS AND OSS
R2 and ISDN country specifics implementations
ETSI/ANSI ISUP, SSP
Support for Nortel GPRS system (SGSN/GGSN)
IWP Redundancy
Frequency Hopping
High Power Receiver Diversity
Forced Handover
MSC+BSC Combo
SoLSA (subset only for user restriction)
AuC, SMS and EIR support for standalone Networks
Release Link Trunk
Call Intercept
* - Specific requirements for MAP E shall be confirmed by both parties to
determine the actual parts of the specs to be included in the release.
