Note: Portions of this exhibit indicated by "[*]" are subject to a confidential
treatment request, and have been omitted from this exhibit. Complete, unredacted
copies of this exhibit have been filed with the Securities and Exchange
Commission as part of this Company's confidential treatment request.
Exhibit 10.22
-------------
RESELLER AGREEMENT
------------------
This Reseller Agreement (the "Agreement") is made effective as of the
28/th/ day of August 2000 (the "Effective Date"), by and between Airspan
Communications Ltd, a company incorporated under the laws of England and Wales,
with registered number 3501881 and with its registered office at Xxxxxxxxx
Xxxxx, Xxxxxx Xx XXXXXXXX, XX0 0XX, Xxxxxx Xxxxxxx ("ACL"), and VADO TELECOM
Kommunikationstechnik-, Planungs- und Errichtungsgesellschaft m.b.H., a company
organised under the laws of Austria, with its principal office at Austria - A -
1100 Vienna, Xxxxxxxxx 0, Xxxxxxx ("Reseller").
WITNESSETH:
WHEREAS, ACL is engaged in the design and manufacture of various
telecommunications product lines including, among others, those ACL products
more completely described in Schedule I hereto (the ACL products described in
Schedule I, as from time to time amended in accordance with the provisions of
this Agreement, are hereinafter called the "ACL Products," the hardware
components thereof are sometimes referred to separately as "Equipment," the
software components thereof are sometimes referred to separately as "Software"
as defined in Section 12.1, and an arrangement of Equipment which, when
interfaced with Software, is operable to perform predetermined functions, is
referred to as a "System").
WHEREAS, Reseller is engaged in the development, manufacture, sale and
resale of telecommunications products; and
WHEREAS, ACL desires to appoint Reseller as its non-exclusive reseller for
the ACL Products for the territory described in Schedule II hereto (the
"Territory").
AGREED TERMS:
NOW, THEREFORE, in consideration of the mutual promises herein contained,
it is hereby agreed as follows:
1. APPOINTMENT AS AUTHORIZED RESELLER.
----------------------------------
1.1 ACL hereby appoints Reseller as a non-exclusive independent reseller
to resell the ACL Products in the Territory, and Reseller hereby accepts such
appointment as of the Effective Date of this Agreement.
1.2 Reseller's appointment as a distributor of the ACL Products grants to
Reseller only a license to resell the ACL Products to Reseller's customers in
the Territory, and does not transfer any right, title, or interest in any of the
ACL Products to Reseller.
2. RELATIONSHIP OF THE PARTIES. The relationship between ACL and Reseller is
---------------------------
solely that of buyer and seller. Reseller is an INDEPENDENT CONTRACTOR and is,
in no way, ACL's sales representative, legal representative, or agent. Reseller
HAS NO AUTHORITY TO ASSUME OR CREATE ANY OBLIGATION ON ACL'S BEHALF, EXPRESS OR
IMPLIED, WITH RESPECT TO ACL PRODUCTS OR OTHERWISE. Reseller agrees not to make
any representation, guarantee, or warranty on ACL's behalf, but will refer
purchasers and prospective purchasers to ACL's printed sales literature.
Reseller will not represent itself as ACL's agent or act in any way which might
imply that ACL and Reseller are not separate and distinct entities. Nothing
contained in this Agreement is to be construed as a limitation or restriction
upon ACL in the sale or other disposition of any of its products to any person,
firm, or corporation either inside or outside of the Territory. ACL will pay no
commissions under this Agreement. Reseller's compensation is to be obtained
solely by the difference between the price Reseller pays to ACL and the price
Reseller charges its customers. The parties also acknowledge that this Agreement
is not intended to create a joint venture or partnership between ACL and
Reseller.
3. SALES AND SUPPORT OBLIGATIONS OF Reseller.
-----------------------------------------
3.1 Reseller will use its best efforts to vigorously and aggressively
promote the sale of ACL Products within the Territory. Such efforts
shall include, but shall not be limited to, that advertising within
the Territory which is reasonably necessary. All such advertising
shall follow the general statements made in advertising prepared by
ACL. All advertising shall contain a prominent reference to ACL,
indicating the actual commercial origin of ACL Products so advertised.
Reseller shall not make any claims in its advertising which exceed or
contradict claims made by ACL in its printed materials.
3.2 Reseller will train and maintain a sufficient number of technical and
sales personnel in order to: (a) serve the demands and needs of its
customers for ACL Products, service, and support; and (b) carry out
the obligations of Reseller under this Agreement.
3.3 Reseller and its staff will be conversant with the technical language
related to ACL Products and will develop sufficient knowledge of the
industry, ACL Products, and products competitive with ACL Products
(including specifications, features, and benefits) so as to be able to
explain in detail to customers the differences between ACL Products
and competitive products. Reseller will conduct or provide for any
training of its personnel which may be necessary to impart such
knowledge.
3.4 Reseller and its staff will research the technical requirements and
specifications of the market for ACL Products in the Territory and
make information known to ACL such that ACL may, at its discretion,
implement appropriate technical changes to the Products to enable them
to be sold in the Territory. ACL acknowledges that, subject to a
further and separate Agreement, such changes may be implemented in the
future by Reseller, with the assistance of ACL.
3.5 Reseller agrees to purchase and stock a comprehensive inventory of
spare parts based upon the recommended list set forth in Schedule III
to this Agreement.
3.6 Reseller agrees to provide to its customers installation services for
all ACL Products. All such installation services shall be performed by
Reseller in accordance with ACL's latest installation standards as
provided by ACL.
3.7 Reseller agrees to train and have readily available a maintenance
staff to efficiently and expeditiously maintain or upgrade all ACL
Products purchased or licensed by Reseller from ACL. Maintenance shall
be performed in accordance with ACL's latest maintenance standards for
ACL Products, as provided by ACL, by Reseller's own personnel and may
not be subcontracted or delegated to any other person or entity
without ACL's prior, written authorisation.
3.8 Reseller agrees to provide and maintain those facilities adequate to
meet the obligations set forth in this section and of the Agreement.
Reseller further agrees to provide all of the sales and support
functions set forth in this section at no charge to ACL.
3.9 Reseller agrees not to actively seek to promote, rent, lease, sell,
sublicense or authorise the rental, sale or sublicense of ACL Products
outside of the Territory [without the prior written approval of ACL],
but nothing in this Agreement shall prevent Reseller from renting,
selling or sublicensing the ACL Products to customers outside of the
Territory in response to an unsolicited request from such customer.
3.10 During the term of this Agreement Reseller agrees that neither it nor
any organisation or entity controlled or directed by it will, without
ACL's prior, written consent, represent a manufacturer or supplier of
products similar in design or performance to or which are of such a
nature as to be competitive with any products contained in the ACL
Products, Reseller
4. RECORDS AND REPORTING.
---------------------
4.1 At ACL's request, within fifteen (15) days of the end of each calendar
month, Reseller will provide to ACL a written report showing, for the just-ended
calendar month: (a) Reseller's shipments of ACL Products by dollar volume, both
in the aggregate and for such categories as ACL may designate from time to time;
(b) forecasts of Reseller's anticipated orders by product; (c) Reseller's
current inventory levels of ACL Products, in the aggregate and by product; and
(d) any other information which ACL may reasonably request.
4.2 Reseller will promptly advise ACL concerning any market information
which comes to Reseller's attention regarding ACL, ACL Products, ACL's market
position, or the continued competitiveness of ACL Products in the marketplace.
Reseller will confer with ACL from time to time, at ACL's request, on matters
relating to market conditions, distribution forecasting, and product planning.
4.3 For at least two (2) years after termination of this Agreement,
Reseller will maintain its records, contracts, and accounts relating to
distribution of ACL
Products, and will permit examination thereof by authorised representatives of
ACL at all reasonable times.
5. PRICES AND PAYMENT TERMS.
------------------------
5.1 The Contract Price for each item of Equipment or Software is as
specified in Schedule IV and shall be paid to ACL in Dollars of the United
States of America. Notwithstanding the above, the Contract Price for the
Equipment and Software to be shipped against Purchase Orders 1 and 2 is
specified in Euro's on these two Purchase Orders and shall be paid to ACL in
Euro's. If the parties agree to vary the Contract Price, currency or payment
terms for future Purchase Orders, such variations will be included on the
Purchase Orders at that time, subject to acceptance of the Purchase Order by ACL
as set forth in Section 6 of this Agreement. The Contract Price includes:
a. The price of the Equipment;
b. The fee for the licensing of the Software;
c. The charges for the warranty of the Equipment and Software in
accordance with Section 15; and
d. Transportation charges in accordance with ACL's delivery
obligations set forth in Section 8.
5.2 The Contract Price shall not include any government levied sales, use,
value added, or other taxes, customs duties, or similar tariffs and fees which
ACL may be required to pay or collect upon the delivery of ACL Products or in
furtherance of this Agreement. Should any tax or levy be made, Reseller agrees
to pay or reimburse such tax or levy demanded. Reseller represents and warrants
to ACL that all ACL Products acquired hereunder are for redistribution in the
ordinary course of Reseller's business, and Reseller agrees to provide ACL with
appropriate resale certificate numbers and other documentation satisfactory to
the applicable taxing authorities to substantiate any claim of exemption from
any such taxes or fees. Notwithstanding anything herein to the contrary, in no
event shall Reseller be required to pay any tax assessed on ACL's income.
5.3 If a Purchase Order is accepted by ACL, ACL will issue an invoice (the
"Invoice") to Reseller within fifteen (15) business days of ACL's receipt of the
written Purchase Order from Reseller. The Invoice specifically shall identify
the Equipment and Software so ordered, and the Contract Price of such items. The
Invoice also shall state the total due to ACL from Reseller (the "Invoice
Total"), which shall include the Contract Price, and any applicable taxes,
duties, and other fees due pursuant to Section 5.2 of this Agreement.
5.4 Payment in full shall be made against the relevant ACL invoice(s). All
invoices are due on presentation. For purposes of this Section 5.4 only, full
payment will be deemed to have been made upon receipt of funds in ACL's bank.
All payments shall be made in United States dollars, free of any withholding tax
and of any currency controls or other restrictions. ACL reserves the right to
charge interest at prevailing rates on any payment not received thirty (30) days
after the date of the invoice.
5.5 The payment instructions are:
Bank: Lloyds Bank plc
Woking Branch
00 Xxxxxxxxxx Xxx
Xxxxxx
Xxxxxx, XX00 0XX
Xxxxxx Xxxxxxx
Sort Code: 30 99 80
Credit: Airspan Communications Ltd
Account No: 11232312
Further Instructions: "Reference (customer name) P.O. No. _______,
Payment of Invoice No. _________."
5.6 If the cost to ACL of performing this Agreement increases as a result
of any change to the law or any reason beyond ACL's reasonable control, such
increase may be added to the Contract Price at ACL's sole discretion. ACL shall
notify Reseller of its reasonable estimate which Reseller shall be deemed to
have accepted unless it notifies ACL to the contrary within 14 calendar days.
6. ORDER PROCEDURE.
---------------
6.1 All purchase orders for ACL Products by Reseller shall be subject to
acceptance in writing by ACL at ACL's principal place of business, and shall not
be binding until the earlier of such acceptance or shipment and, in the case of
acceptance by shipment, only as to the portion of the order actually shipped.
6.2 The terms and conditions of this Agreement and of the applicable ACL
invoice or confirmation will apply to and be deemed to be incorporated into each
purchase order received from Reseller to the exclusion of all other terms and
conditions on the back or on the face of such purchase order with the exception
only of provisions expressly set out on the face of the purchase order referring
to the Agreement and clearly stating that they are to override it where such
overriding terms are accepted in writing by ACL. In the event of any conflict or
inconsistency between the terms and conditions of this Agreement and of any
purchase order issued by Reseller hereunder, or if the purchase order does not
reference the terms and conditions of this Agreement, the terms and conditions
of this Agreement shall prevail unless otherwise agreed in writing by the
parties.
6.3 All purchase orders issued by Reseller hereunder shall include the
following information: (a) model of ACL Products; (b) requested shipment
date(s); (c) delivery instructions (if no carrier is specified, ACL may, but is
not required to, select a carrier); (d) reference to this Agreement; (e) any
other special information required by this Agreement or dictated by the
circumstances of the order; (f) any other information reasonably requested by
ACL in advance. Purchase orders should be sent to:
Airspan Communications Ltd
ATTN: Sales
Xxxxxxxxx Xxxxx
Xxxxxx Xx
XXXXXXXX
XX0 0XX
Xxxxxx Xxxxxxx
Fax: x00 0000 000 000
6.4 ACL reserves the right to cancel any purchase orders placed by
Reseller and accepted by ACL as set forth above, or to refuse or delay shipment
thereof if Reseller: (a) fails to make any payment as provided in this Agreement
or under the terms of payment set forth in any invoice or otherwise agreed to by
ACL and Reseller; (b) fails to meet reasonable credit or financial requirements
established by ACL, including any limitations on allowable credit; or (c)
otherwise fails to comply with the terms and conditions of this Agreement.
7. SHIPMENT, RISK OF LOSS, TITLE, AND DELIVERY.
-------------------------------------------
7.1 All ACL Products will be delivered by ACL CIP, Vienna Airport, Austria
(as defined in Incoterms). If requested by Reseller, ACL may arrange for
shipment to be made to Reseller's identified warehouse facilities or freight
forwarder, subject to approval in writing by ACL in advance of shipment. Unless
specified in Reseller's order, ACL will select the mode of shipment and the
carrier. Reseller will be responsible for and pay all packing, shipping,
freight, and insurance charges, which charges ACL may require Reseller to pay in
advance.
Reseller must inform ACL of any loss in transit or damages(s) to the Equipment
and Software, and co-operate with ACL in filing any claims with the carrier for
such loss in transit or damage(s).
In this Agreement, "Incoterms" means the most recent international rules
for the interpretation of trade terms published by the International Chamber of
Commerce as in force at the date when this Agreement is made. Unless the context
otherwise requires, any term or expression which is defined in or given a
particular meaning by the provisions of Incoterms shall have the same meaning in
this Agreement, but if there is any conflict between the provisions of Incoterms
and this Agreement, the latter shall prevail.
7.2 All risk of loss or damage to the Equipment and Software, and title to
the Equipment, will pass to Reseller upon delivery by ACL to Reseller. The
Software shall at all times remain the exclusive property of ACL.
7.3 Unless Reseller clearly advises ACL to the contrary in writing, ACL
may make partial shipments on account of Reseller's orders. Delay in delivery of
any instalment shall not relieve Reseller of its obligation to accept the
remaining deliveries.
7.4 ACL will use reasonable efforts to meet Reseller's requested delivery
schedules for ACL Products, but ACL reserves the right to refuse, cancel, or
delay shipment to Reseller when Reseller's credit is impaired, when Reseller is
delinquent in payments or fails to meet other credit or financial requirements
reasonably established by ACL, or when Reseller has failed to perform its
obligations under this
Agreement. Should orders for ACL Products exceed ACL's available inventory, ACL
will allocate its available inventory and make deliveries on a basis that ACL
deems equitable, in its sole discretion, and without liability to Reseller on
account of the method of allocation chosen or its implementation. In any event,
except by prior written agreement, ACL shall not be liable for any damages
(direct, consequential, special, or otherwise) to Reseller or to any other
person for failure to deliver or for any delay or error in delivery of ACL
Products for any reason whatsoever.
8. ASSIGNMENT.
----------
Reseller is appointed an authorised ACL distributor because of Reseller's
commitments in this Agreement and, further, because of ACL's confidence in
Reseller, which confidence is personal in nature. This Agreement shall not be
assignable by Reseller, and Reseller may not delegate its duties hereunder
without the prior, written consent of ACL. Any purported assignment or
delegation of the whole or any part of this Agreement by Reseller, including to
a purported sub-distributor, will be null and void and will be deemed to be a
material breach of this Agreement not subject to cure.
9. DURATION AND TERMINATION OF AGREEMENT.
-------------------------------------
9.1 This Agreement is for a term of twelve (12) months from the Effective
Date. Nothing contained herein shall be interpreted as requiring either party to
renew or extend this Agreement, and neither party expects this Agreement to be
renewed. Notwithstanding the provisions of this section or to any other
provisions of this Agreement, this Agreement may be terminated prior to the
expiration of its stated term as set forth below.
9.2 This Agreement may be terminated by ACL for good cause if Reseller:
(a) fails to pay for ACL Products when payment is due in accordance with this
Agreement; or (b) fails to promptly secure or renew any license, registration,
permit, authorisation or approval for the conduct of its business in the manner
contemplated by this Agreement or if any such license, registration, permit,
authorisation or approval is revoked or suspended and not reinstated within
thirty (30) days; or (c) is merged, consolidated, or sells all or substantially
all of its assets, or implements or suffers any substantial change in management
or control; or (d) fails to comply with any other material covenant, term, or
provision of this Agreement; or (e) if ACL is advised by any of its End Users in
the Territory of their dissatisfaction with the performance of Reseller. If
Reseller's failure to comply as contemplated in this Section 9.2(d) is capable
of cure, ACL's right to terminate this Agreement under Section 9.2(d) may not be
exercised unless ACL shall have given Reseller ten (10) days' prior written
notice of the failure, and Reseller has not cured the failure within the ten
(10) day period following notice from ACL. If Reseller's failure to comply is
not capable of cure, ACL may terminate this Agreement immediately upon giving
Reseller written notice of termination.
9.3 This Agreement terminates automatically for just cause, with no
further act or action of either party, if: (a) a receiver is appointed for
Reseller or its property; (b) Reseller makes an assignment for the benefit of
its creditors; (c) any proceedings are commenced by, for, or against Reseller
under any bankruptcy, insolvency, or debtor's relief law; or (d) Reseller is
liquidated, dissolved or otherwise terminates its activities.
9.4 In the event any notice of termination of this Agreement is given, ACL
will be entitled to reject all or part of any purchase orders received from
Reseller after notice, but prior to the effective date of termination if
availability of ACL Products is insufficient at that time to fully meet the
needs of ACL and its customers. In any case, ACL may limit monthly shipments to
Reseller during said period to Reseller's average monthly shipments from ACL
during the three (3) months prior to the date of notice of termination.
9.5 Upon termination of this Agreement, at its option, ACL may reacquire
any or all of ACL Products then in Reseller's possession at prices not greater
than the prices paid by Reseller for such ACL Products (or if ACL Products are
not in unopened, factory-sealed boxes, fifty percent (50%) of such prices). Upon
receipt of any ACL Products so reacquired from Reseller, ACL shall issue an
appropriate credit to Reseller's account.
9.6 ACL SHALL NOT BE LIABLE TO Reseller FOR DAMAGES OF ANY KIND, INCLUDING
INCIDENTAL OR CONSEQUENTIAL DAMAGES, ON ACCOUNT OF THE TERMINATION OF THIS
AGREEMENT IN ACCORDANCE WITH THIS SECTION. Reseller WAIVES ANY RIGHT WHICH IT
MAY HAVE TO RECEIVE ANY COMPENSATION OR REPARATIONS ON TERMINATION OR EXPIRATION
OF THIS AGREEMENT. ACL shall not be liable to Reseller on account of termination
or expiration of this Agreement for reimbursement or damages for loss of
goodwill, prospective profits or anticipated order, or on account of any
expenditures, investments, leases, or commitments made by either party or for
any other reason whatsoever based upon or growing out of such termination or
expiration. Reseller acknowledges and agrees that: (a) Reseller has no
expectation and has received no assurances that its business relationship with
ACL will continue beyond the stated term of this Agreement or its earlier
termination in accordance with this section, that any investment by Reseller in
the promotion of ACL Products will be recovered or recouped, or that Reseller
shall obtain any anticipated amount of profits by virtue of this Agreement; and
(b) Reseller shall not have or acquire by virtue of this Agreement or otherwise
any vested, proprietary, or other right in the promotion of ACL Products or in
any goodwill created by its efforts hereunder. THE PARTIES ACKNOWLEDGE THAT THIS
SECTION HAS BEEN INCLUDED AS A MATERIAL INDUCEMENT FOR ACL TO ENTER INTO THIS
AGREEMENT, AND THAT ACL WOULD NOT HAVE ENTERED INTO THIS AGREEMENT BUT FOR THE
LIMITATIONS OF LIABILITY AS SET FORTH HEREIN.
9.7 ACL's rights and Reseller's obligations to pay ACL all amounts due
hereunder as well as Reseller's obligations under Sections 10, 11, 12, 14, 15,
16, and 19 shall survive termination of this Agreement.
10. ADVERTISING, TRADEMARKS, TRADE NAMES.
------------------------------------
10.1 In the advertising and sale of ACL Products, Reseller may use ACL's
trade names, trademarks, logos, and designations in relation to those ACL
Products. Reseller will not make or permit the alteration or removal of any
tags, labels, or other identifying marks placed by ACL on ACL Products. Reseller
will not use (or give any third party permission to use) the names "Airspan
Communications Ltd", "Airspan Communications Corporation", "ACL", "ACC", or
abbreviations or derivations thereof in Reseller's corporate titles, or in any
way which might result in confusion as to ACL and Reseller being separate and
distinct entities.
10.2 Reseller admits ACL's exclusive ownership of the name "Airspan
Communications Corporation", "Airspan Communications Ltd", "ACC", "ACL", and any
abbreviations thereof and all of ACL's trademarks, trade names, logos, and
designations (whether registered or not). Reseller shall not take any action
inconsistent with ACL's ownership of such trademarks, trade names, logos, and
designations; therefore, Reseller shall treat all of ACL's items distinctively
(as to typography) and shall only use exact reproductions of all ACL's symbols
(including ACL's logo). Reseller shall not adopt or use any trademark or product
name which may be confusingly similar to any ACL trademark, trade name, logo, or
designation. Reseller may use the ACL logo as it appears on ACL's letterhead.
All references to ACL trademarks, trade names, logos, and designations by
Reseller shall be in a manner acceptable to and approved in advance by ACL.
10.3 Reseller advertising and promotional materials, including business
cards and letterheads, will reflect the following guidelines: (a) Reseller's
name must precede ACL's name, and it must be in typescript letters larger and
more prominent than ACL's name; (b) Reseller's name and ACL's name must be
physically spaced apart; (c) Reseller shall refer to ACL as "Airspan
Communications Ltd" or "ACL" (of the two, only "ACL" may be used in the
possessive form; i.e., ACL's); (d) at least the first time Reseller makes
reference to a ACL trademark, an asterisk and footnote identifying it as a
trademark owned by ACL shall be included; (e) ACL's trademarks shall be used
consistently as to spelling and format (abbreviations or shorthand expressions
are not permitted); and (f) at least the first time Reseller makes reference to
a non-trademark ACL product name, the full product name shall be used.
10.4 Reseller has paid no consideration for the use of ACL's trademarks,
trade names, logos, copyrights, trade secrets, or designations, and nothing
contained in this Agreement shall give Reseller any interest in any of them.
Reseller acknowledges that ACL owns and retains all copyrights and other
proprietary rights in all ACL Products, and agrees that it will not at any time
during or after this Agreement assert or claim any interest in or do anything
which may adversely affect the validity or enforceability of any trademark,
trade name, trade secret, copyright, designation, or logo belonging to or
licensed to ACL (including, without limitation, any act or assistance to any act
which may infringe or lead to the infringement of any copyright in ACL
Products). Reseller agrees not to attach any additional trademarks, trade names,
logos, or designations to any ACL Product. Reseller further agrees not to affix
any ACL trademark, trade name, logo, or designation to any non-ACL Products.
10.5 Upon the expiration or termination of this Agreement, Reseller will
forthwith cease all display, advertising, and use of all ACL names, marks,
logos, and designations, and will not thereafter use, advertise, or display any
name, xxxx, or logo which is, or any part of which is, similar to or confusing
with any such designation associated with any ACL Products.
10.6 Reseller agrees to use reasonable efforts to protect ACL's
proprietary rights and to co-operate, without charge, in ACL's efforts to
protect its proprietary rights. Reseller agrees to notify ACL of any known or
suspected breach of ACL's proprietary rights which comes to Reseller's
attention.
11. CONFIDENTIAL INFORMATION.
------------------------
11.1 All technical information, documentation, Software and other
proprietary information (the "Confidential Information") supplied by ACL to
Reseller under this Agreement, except for that which may be in the public
domain, shall as between the parties hereto be treated as the confidential or
proprietary information of ACL. Except as specifically authorised in writing by
ACL, Reseller shall: (a) treat and protect all Confidential Information received
from ACL or its suppliers as confidential or proprietary information; (b) not
reproduce any Confidential Information received from ACL or its suppliers, in
whole or in part, save as provided for in Section 13.3; (c) use any Confidential
Information received by ACL or its suppliers only for operation or maintenance
purposes in connection with the Equipment; (d) indemnify ACL for any loss or
damages resulting from a breach of this Section; and (e) not disclose any
Confidential Information received from ACL to any third parties.
11.2 If this Agreement is terminated or cancelled, or if Reseller is found
to have breached any of the provisions of Sections 11 or 12, Reseller agrees to
immediately return all Confidential Information to ACL. In any event, the
obligations of Sections 11 and 12 will survive termination or cancellation of
this Agreement.
11.3 Any business or product plans disclosed by ACL to Reseller hereunder
may be undergoing development. As such, ACL makes no promise that such plans
will ultimately take place or that such product(s) will ultimately be placed on
the market. ACL reserves the right to cancel or alter the development of such
plans and/or the marketing of such product(s) at any time. Any reliance on the
information disclosed hereunder is at Reseller's own risk.
11.4 Nothing contained in this section shall be construed as granting,
conferring, or implying any rights by license, estoppel or otherwise. The rights
and obligations of the parties hereto under this section shall survive any
termination of this Agreement.
12. SOFTWARE LICENSE.
----------------
12.1 ACL grants Reseller, and Reseller hereby accepts, a nonexclusive,
non-transferrable license to use, and to sublicense as set forth below, Software
provided by ACL hereunder only on a single System or unit of Equipment, as may
be applicable. No license is granted to use the Software on multiple Systems or
in conjunction with Equipment furnished by a party other than ACL, unless
specifically agreed in writing by ACL. Software licensed under this Agreement is
defined as: (a) any digital instruction sequence or control data contained on
any media, including but not limited to, any magnetic-, electronic-, optical-,
or organic device, and the term Software shall include any enhancement,
modification, extension, part, portion or expansion thereof or implementation or
downloading from network of any of the foregoing, for use exclusively on a
System or a unit of Equipment; and (b) all associated documentation used to
describe, maintain and use the Software.
12.2 Any Software provided to Reseller by ACL will be treated as the
exclusive property of ACL, and Reseller will: (a) treat such Software as
Confidential Information under Section 11 of this Agreement; (b) utilise such
Software or any portions or aspects thereof (including any methods or concepts
utilised therein) solely on Systems or Equipment provided by ACL; (c) forthwith
return to ACL all
memory media, documentation and/or other material that has been modified,
updated or replaced; (d) except to the extent permitted by [applicable] law not
modify, disassemble or decompile such Software, or reverse engineer any portion
of the Software or functioning of Systems or Equipment, or permit others to do
so, without ACL's prior written consent; (e) except to the extent permitted by
[applicable] law not reproduce or copy such Software in whole or in part except
for backup and archival purposes or as otherwise permitted in writing by ACL;
(f) not perform or release benchmarks or other comparisons of the Software; and
(g) not remove any trademark, tradename, copyright, notice or other proprietary
notice from the Software and Reseller shall be responsible for the conservation
of the same on any back-up copy of the Software.
12.3 In the event of a breach of this license by Reseller, then ACL may,
in its discretion, terminate the license with immediate effect, whereupon
Reseller shall return to ACL all Software and copies thereof within ten (10)
days.
12.4 This software license also comprises any third party software forming
part of the software delivered hereunder, it being understood that ownership to
such third party software is with ACL's licensors but that the third party
licensor's warranties, guarantees, liabilities, and indemnities relating to such
software do not extend to Reseller or Reseller's use thereof. Reseller, however,
agrees to respect all license requirements of such third party licensor as set
out in the third party's license conditions delivered with the Products to
Reseller.
12.5 The following additional license conditions shall apply to Reseller's
use of any management Software delivered hereunder. Reseller (a) may not
transfer the Software to a computer, location, or site other than that or those,
for which the Software is licensed, without the prior written consent of ACL,
provided, however, that Reseller on a temporary basis only, may transfer the
Software to another computer system in the event that the computer for which the
Software has been licensed becomes inoperable; and (b) shall maintain adequate
records of the installation, location, and site of the Software and make such
records available to ACL or the relevant third party licensor at ACL's request.
12.6 Reseller may grant sublicenses to various sublicensees ("End User")
to use the Software solely on Systems or units of Equipment, as may be
applicable in accordance with the specific license terms (single or multiple
System/Equipment license) between the parties. Reseller agrees to promptly
provide a copy of such End User Agreement to each End User, and no such
sublicense will be effective until the End User has executed such End User
Agreement.
13. EXCUSABLE DELAY.
---------------
ACL shall not suffer any liability for non-performance, defective performance,
or late performance of its obligations under this Agreement due to causes beyond
its control and without its fault or negligence such as, but not limited to,
acts of God, war (including civil war), civil unrest, acts of government, fire,
floods, explosions, the elements, epidemics, quarantine, restrictions, strikes,
lock-outs, plant shutdown, material shortages, or delays in transportation or
delays of its suppliers or subcontractors for like cause. In the event of
excusable delay as defined in the preceding sentence, then ACL, upon giving
prompt written notice to Reseller, shall be excused from such performance on a
day-to-day basis to the extent of such
prevention, restriction, or interference, provided that ACL shall use
commercially reasonable efforts to avoid or remove such causes of non-
performance and to perform with dispatch whenever such causes are removed or
cease to exist.
14. WARRANTY, REMEDIES, AND DAMAGES.
-------------------------------
14.1 Neither party's liability:
(i) for death or personal injury; and
(ii) in relation to any other liability which may not by applicable law be
excluded or limited;
is excluded or limited.
14.2 ACL's maximum liability under this Agreement shall be limited to the
sum of $1million in respect of physical damage to or loss of tangible property,
and $1million in respect of all other events or any one event or series of
connected events.
14.3 Reseller acknowledges that this is a commercial contract and that,
except as expressly set forth in this Agreement, ACL shall not be liable to
Reseller or any person or entity claiming through or under Reseller, directly or
indirectly, for any loss or damage (whether direct, indirect, general, special
or consequential) sustained for any cause or reason whatsoever relating to or
arising out of the ACL Products.
14.4 For the avoidance of doubt the "loss or damage" referred to in clause
14.3 above includes:
(i) any:
(a) loss of profits;
(b) loss of sales;
(c) loss of turnover;
(d) loss of bargain; or
(e) loss of opportunity; or
(ii) any indirect or consequential loss or damage howsoever caused.
14.5 THE FOLLOWING WARRANTIES ARE IN LIEU OF ALL CONDITIONS OR WARRANTIES,
EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED
CONDITIONS OR WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE
AND OF ANY OTHER CONDITION OR WARRANTY OBLIGATION ON THE PART OF ACL. ACL
warrants that each ACL Product will be free from defects in material and
workmanship for a period of one (1) year following delivery to the carrier or
agent of Reseller as set forth above. ACL further warrants that at the time of
delivery, ACL has title to ACL Products free and clear of any and all liens and
encumbrances, and that it has the right to grant licenses for the Software
provided hereunder.
14.6 Save as provided for in Sections 14.1 and 14.2 above ACL's SOLE AND
EXCLUSIVE MAXIMUM LIABILITY AND Reseller's SOLE AND EXCLUSIVE REMEDY under this
Agreement with regard to defective ACL Products shall be to repair or replace
(with new or functionally operative parts) such defective ACL Products.
14.7 Reseller may return ACL Products to ACL's manufacturing plant for
repair or replacement with shipment and in-transit damage at Reseller's risk and
expense. Repaired or replacement products shall be delivered by ACL to a carrier
or agent agreed to by the parties. Such carrier or agent shall be Reseller's
agent. Risk of loss or damage to such products shall pass to Reseller on
delivery to such carrier or agent, but ACL shall be liable for the expense of
returning such products to Reseller's location in the Territory. Reseller agrees
to pay for all service expense not covered by this warranty. Xxxxxxxx shall be
at ACL's then-current service rates. All remedies set forth herein are made on
the condition that: (a) ACL is promptly notified in writing upon discovery by
Reseller that such ACL Products are defective; and (b) ACL's examination of such
ACL Products shall disclose that such alleged deficiencies actually exist and
were not caused by accident, any other hazard, neglect, alteration, Reseller's
improper testing, installation, or attempts to repair, any cause beyond the
range of normal usage, or use of supplies not meeting ACL specification. In the
event ACL elects to repair or replace any defective ACL Product, it shall have
up to thirty (30) calendar days from receipt to repair and return such product
to Reseller's carrier or agent. Such repair, replacement, or correction shall
constitute fulfilment of all liability of ACL to Reseller whether based in
contract, tort, or otherwise.
14.8 Save as provided for in Sections 14.1 and 14.2 above, If ACL breaches
any other provision of this Agreement, ACL's SOLE AND EXCLUSIVE MAXIMUM
LIABILITY AND Reseller's SOLE AND EXCLUSIVE REMEDY, whether based in contract,
tort or otherwise, shall not in any event exceed [those prices set forth on
Schedule IV for the particular item of ACL Products involved].
14.9 Save as provided for in Section 15 below Reseller shall indemnify and
hold harmless and defend ACL and its respective officers, directors, employees,
representatives and agents from and against all claims, demands, actions, suits,
proceedings, writs, judgements, orders and decrees brought, made or rendered
against them or any of them and all damages, losses and expenses suffered or
incurred by them or any of them howsoever arising out of or related to the
breach by Reseller of any of the terms of this Agreement. [ACL shall notify
Reseller forthwith of any claim, demand, action, suit, proceeding, writ,
judgement, order or decree falling within the scope of this Section 7 and shall
permit Reseller sole conduct of the same and shall provide reasonable assistance
in relation thereto, subject to the payment by Reseller of ACL's reasonable
costs and expenses.]
15. INTELLECTUAL PROPERTY RIGHTS INDEMNITY.
--------------------------------------
15.1 ACL agrees to indemnify and hold Reseller harmless with respect to
any suit, claim, or proceeding brought against Reseller by a third party
alleging that Reseller's use of the Equipment or the Software, separately or in
combination, as a whole or in part, constitutes an infringement of any patent or
copyright or misuse of proprietary or trade secret information. ACL agrees to
defend Reseller against any
such claims and to pay all litigation costs, reasonable attorney's fees,
settlement payments, and any damages awarded or resulting from any such claim.
15.2 Reseller shall promptly advise ACL of any such suit, claim, or
proceeding and shall co-operate with ACL in the defence or settlement thereof.
ACL shall have sole control of the defence of any action involving such a claim
and of all negotiations for its settlement or compromise.
15.3 In the event that an injunction is obtained against Reseller's use of
the Equipment and/or the Software, in whole or in part, as a result of any such
claim, ACL shall use its best efforts to either: (a) procure for Reseller the
right to continue using the portions of the Equipment or the Software enjoined
from use; or (b) replace or modify the same with functionally equivalent or
better Equipment and/or Software so that Reseller's use is not subject to any
such injunction. In the event that ACL cannot perform the remedies set forth in
Sections 15.3(a) or 15.3(b), then Reseller shall have the right to return such
Equipment and the Software to ACL. In the event of such return, ACL shall refund
the depreciated value of the Equipment and the license to use the Software
within thirty (30) days of the receipt by ACL of the Equipment and the Software.
15.4 This indemnity shall not apply to claims arising in respect to the
use of the Equipment or Software supplied by ACL or manufactured by its
suppliers in accordance with any design or any special instruction furnished by
Reseller, or which is used by Reseller in a manner or for a purpose not
contemplated by this Agreement.
15.5 The provisions of this Section 15 set forth the entire obligation of
ACL with respect to any claim of patent infringement, copyright infringement, or
misuse of proprietary or trade secret information.
16. EXPORT CONTROLS AND LEGAL COMPLIANCE.
------------------------------------
16.1 If any approval with respect to this Agreement, or the registration
thereof, shall be required at any time during the term of this Agreement, with
respect to giving legal effect to this Agreement in the Territory, or with
respect to compliance with exchange regulations or other requirements so as to
assure the right of remittance abroad of United States dollars pursuant to
Section 5 hereof, Reseller shall immediately take whatever steps may be
necessary in this respect, and any charges incurred in connection therewith
shall be for the account of Reseller. Reseller shall keep ACL currently informed
of its efforts in this connection. ACL shall be under no obligation to ship ACL
Products to Reseller hereunder until Reseller has provided ACL with satisfactory
evidence that such approval or registration is not required or that it has been
obtained.
16.2 In the performance of its obligations under this Agreement, Reseller
shall at all times strictly comply with all export laws, regulations, and orders
of the United Kingdom and the United States of America. Reseller specifically
acknowledges that Equipment, Software or technology supplied or licensed by ACL
under this Agreement are subject to U.K. and U.S. trade sanctions and export
control laws and regulations including, but not limited to, the various Foreign
Assets Control Regulations, the Export Administration Regulations, and the
International Traffic in Arms Regulations. Reseller specifically acknowledges
that Equipment, Software, or technology obtained from ACL pursuant to this
Agreement shall not be exported,
reexported, transhipped, disclosed, diverted, or transferred, directly or
indirectly, contrary to U.K. and U.S. laws, orders or regulations. Reseller
shall also comply with the United States Foreign Corrupt Practices Act and shall
indemnify ACL from any failure to comply or violation of such act by Reseller.
The provisions of this section shall survive any termination of this Agreement.
17. TRAINING AND DOCUMENTATION.
--------------------------
17.1 ACL shall provide a single technical course in the English language
for up to two (2) qualified technicians of Reseller during the first year of
this Agreement. The training course so developed by ACL shall be used to
familiarise Reseller's technicians with the use and maintenance of ACL Products.
Training will be conducted at ACL's facilities in Uxbridge, UK, unless otherwise
agreed to by ACL. The necessary instructors and training facilities will be
provided by ACL at no charge to Reseller. Reseller will pay all additional
expenses of training including, but not limited to, travel and room and board.
Additional training courses may be requested by Reseller at ACL's then current
rates for such courses.
17.2 ACL agrees to provide Reseller at no additional charge with its
standard package of documentation related to the use, maintenance, and
installation of ACL Products. In the event that such documentation is modified
during the term of this Agreement, ACL agrees to provide to Reseller at no
additional charge all such modifications. In addition to the documentation
described above, ACL agrees to provide at no additional charge reasonable
amounts of sales materials such as brochures, press releases, and fact sheets.
All documentation provided by ACL to Reseller shall be in the English language.
All translation of such documentation provided by ACL will be at Reseller's sole
expense. All such translations and advertising material not supplied by ACL
relating to ACL Products and services will be submitted to ACL for approval
before publication or dissemination.
18. CONFLICT OF INTEREST.
--------------------
Reseller confirms that it has revealed all information pertaining to possible
conflicts of interest created by the sale of competing products or services or
arising from other positions or contracts held by Reseller, and represents that
no conflict of interest exists. Any future circumstances which could create
possible conflicts of interest will be revealed to ACL as soon as they become
known by informing ACL of any business relationships, circumstances, or
situations which could prejudice in any way the conduct of ACL marketing
activities according to the highest ethical and business standards, or place ACL
or Reseller in any kind of embarrassing situation.
19. MISCELLANEOUS.
-------------
19.1 This Agreement shall be construed in accordance with and governed by
the laws of the England and Wales, without regard to its conflicts of law rules.
The parties hereby exclude the United Nations Convention on Contracts for the
International Sale of Goods from this Agreement and any transaction between them
which is carried out in connection with this Agreement.
19.2 Any dispute, controversy or claim between the parties arising out of,
or in connection with, this Agreement, or the breach, termination or validity
thereof will
be resolved by mutual agreement of the parties. If any dispute, controversy, or
claim arising out of or relating to this Agreement, or the breach, termination,
or validity thereof is unable to be resolved by mutual agreement of the parties,
each of the parties hereby (i) agrees that any action, suit, or proceeding with
respect to this Agreement (other than an action for injunctive or equitable
relief within the Territory) against it or its properties or revenues must be
brought exclusively in the English courts sitting in London, England, and (ii)
irrevocably submits to the exclusive jurisdiction of any such court and any
appellate court from any order or judgement thereof in any such action, suit, or
proceeding. Reseller hereby irrevocably agrees that all claims in respect of
such action, suit, or proceeding may be heard and determined in such courts.
Reseller hereby irrevocably waives, to the fullest extent it may effectively do
so, the defence of an inconvenient forum to the maintenance of such action,
suit, or proceeding. Reseller agrees that a final judgement in any such action,
suit, or proceeding will be conclusive and may be enforced in other
jurisdictions by suit on the judgement or in any other manner provided by law.
19.3 ACL's failure to enforce at any time any of the provisions of this
Agreement or any right with respect thereto, or to exercise any option herein
provided shall in no way be construed to be a waiver of such provision, rights,
or options, or in any way to affect the validity of this Agreement. ACL's
exercise of any of its rights hereunder or of any options hereunder under the
terms or covenants herein shall not preclude or prejudice ACL from thereafter
exercising the same or any right which it may have under this Agreement,
irrespective of any previous action or proceeding taken by ACL hereunder.
19.4 In the advertising and sale of ACL products, Reseller will utilise
ACL's regular trade names and trademarks only as permitted or directed by ACL,
will not make or permit alteration or removal of any tags, labels, or other
identifying marks placed by ACL on its products, and will not use the name
"Airspan Communications Ltd" or abbreviations thereof in Reseller's corporate
titles or in any other way which might result in confusion as to ACL and
Reseller being separate and distinct entities. Reseller agrees to provide
written notification to ACL within thirty (30) days of the purchase of any
products with ACL or its subsidiaries or affiliates. Reseller will not register
any ACL trademark.
19.5 This Agreement shall be binding upon and inure to the benefit of the
successors and assigns of ACL and shall be binding upon and inure to the benefit
of Reseller's heirs, legal representatives, successors and permitted assigns.
19.6 This Agreement and any attachment hereto shall be modified only by an
instrument in writing and signed by duly-authorised representatives of the
parties.
19.7 All notices, requests, consents, and other communications hereunder
must be in writing and will be deemed effective when actually received by the
party to whom sent, at the following addresses:
To: ACL To: Reseller
Airspan Communications Ltd VADO TELECOM
Cambridge House Kommunikationstechnik-, Planungs- und
Oxford Rd, UXBRIDGE Errichtungsgesellschaft m.b.H.,
Xxxxx, XX0 0XX XX A - 1100 Vienna, Xxxxxxxxx 0, Xxxxxxx
ATTN: Contracts Manager ATTN: Xxxxx X. winter
For the avoidance of doubt, notices to ACL will only be legally effective when
actually received by the Director, Marketing.
19.8 This Agreement is executed in English only, and Reseller hereby
waives any right which it may have under the laws of the Territory to have this
Agreement executed in any other language.
19.9 The provisions of this Agreement are severable, and if any provision
is held invalid or unenforceable in whole or in part in any jurisdiction, then
such invalidity or unenforceability will affect only such provision or part
thereof in such jurisdiction, and will not in any manner affect the provision in
any other jurisdiction, or any other provision in this Agreement in any other
jurisdiction. To the extent permissible under applicable law the parties hereby
agree that they will use their best efforts to agree an alternative provision
with the same commercial effect in substitution for such invalid or
unenforceable provision.
20. Reseller agrees not to publish any press releases or otherwise publicise
the existence, or any of the terms, of this Agreement without the prior written
consent of ACL.
21. This document constitutes the entire agreement between the parties with
respect to the subject matter hereof, and supersedes all previous
communications, representations, understandings and agreements, either oral or
written, with respect to the subject matter hereof, between the parties or any
official or representative thereof.
22. RESELLER'S MINIMUM PURCHASE COMMITMENTS.
---------------------------------------
22.1 Upon the execution of this Agreement, Reseller agrees to, and does
concurrently with its signing of this Agreement, order ACL Products on a firm,
noncancellable basis in the aggregate United States Dollar amount (net of any
applicable discounts) of * US DOLLARS (US$*) for delivery within twelve (12)
months of the Effective Date of this Agreement, as more fully detailed in
Section 23.2 below. Reseller shall make notification of individual Orders on a
timely basis in order to meet these purchase commitments.
22.2 If for any reason Reseller does not purchase and take delivery of the
minimum quantities of ACL Products during any individual stated period of this
Agreement (or extensions thereto) as set forth in the schedule below, ACL shall,
without prejudice to its other available remedies, be entitled immediately to
exercise its right to terminate this Agreement in accordance with Section 9.
AGREEMENT PERIOD (months) MINIMUM PURCHASE AMOUNT (US$)
------------------------- -----------------------------
Period Total Cumulative Total
1 through 3 $* $*
4 through 6 $* $*
7 through 9 $* $*
10 through 12 $* $*
23. CLEARANCE
If either party shall cause this Agreement to be made the subject of an
application for negative clearance and/or notification for exemption to the
Commission of the European Communities (the "Commission") then in the event of
any provision of this agreement being held to be in contravention of Article
85(1) of the Treaty establishing the European Economic Community and not
qualifying for exemption under Article 85(3) of the Treaty, the parties shall
consider jointly such amendment or amendments as would avoid infringement of
that Article and attempt to agree in good faith such amendment or amendments. If
within one calendar month of receipt of advice from the Commission of such
contravention or of this agreement otherwise being considered to contravene
Article 85(1) the parties have not agreed upon such amendment or amendments as
would avoid infringement of that Article or would otherwise validate this
agreement, either party may thereupon terminate this agreement forthwith by
written notice to that effect to the other party.
[*] Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the Effective Date, such parties acting by their officers, being
thereunto duly authorised.
Airspan Communications Ltd VADO TELECOM
Kommunikationstechnik-, Planungs-
und Errichtungsgesellschaft m.b.H
By: /s/ Xxxx Xxxxxxxxxx By: /s/ Xxxxx X. Winter
Name: Xxxx Xxxxxxxxxx Name: Xxxxx X. Winter
Title: Executive Vice President & COO Title: CEO
SCHEDULE I
----------
ACL Products
------------
The ACL Products included under this Agreement are:
. AS4000 range of products; and
. AS8100 network management system.
SCHEDULE II
-----------
Territory
---------
Russia, CIS
Ukraine
----------------------------- End of Schedule II -------------------------------
SCHEDULE III
------------
Spares Inventory
----------------
1. Recommended Spares Quantities
The following are Airspan recommended minimum standard quantities for spares
that will be stocked by the Reseller. The quantities may be increased at the
Reseller's discretion. For example, for a widely dispersed network, it may be
appropriate to increase to quantities to support a number of spares sets held at
regional centres. Airspan may, from time to time, vary the recommended minimum
standard quantities of spares and will notify the Reseller in writing of any
such changes.
Subscriber Terminal (ST) spares
2% of the deployed number of each type of ST, with a minimum quantity of 1 for
each type deployed. The following table shows an example of this:
----------------------------------------------------------------------------------------------------------------
Item Deployed Spare Qty
Qty
----------------------------------------------------------------------------------------------------------------
ST 2%
----------------------------------------------------------------------------------------------------------------
R1 1-line 64k & 32k POTS internal plastic Subs Terminal, Ext Antenna, 5000 100
PSU, batteries and cable
----------------------------------------------------------------------------------------------------------------
N4 4-line 32k POTS modular unit, Antenna, Cable and PSU (no batt) 100 2
----------------------------------------------------------------------------------------------------------------
L128 128kbps internal Subs Terminal, Ext Antenna, PSU and cable 5 1
----------------------------------------------------------------------------------------------------------------
Access Concentrator (AC) and Central Terminal (CT) spares
The quantity and type of spares for CTs are dependent on the environment and the
level of service desired by each customer.
The following table shows Airspan's recommended sparing rate for the main AC and
CT plug in units in a 3.5GHz system.
-------------------------------------------------------------------------------
Ref : Name Recommended qty
(minimum=1 where quoted)
-------------------------------------------------------------------------------
CT-RF
-------------------------------------------------------------------------------
888-0004 : Monitor card 1 per 20 CTs deployed
-------------------------------------------------------------------------------
888-0005 : Monitor PSU card 1 per 20 CTs deployed
-------------------------------------------------------------------------------
888-xx02 : Dual PA 3.4-3.6 GHz 1 per 10 CTs deployed
-------------------------------------------------------------------------------
888-0003 : Combiner Shelf PSU 1 per 20 CTs deployed
-------------------------------------------------------------------------------
888-xx01 : LNA/Diplexer 3.4-3.6 GHz Plan 1 1 per 10 CTs deployed
-------------------------------------------------------------------------------
888-xx06 : DA CT rf card, 3.4-3.6 GHz Plan 1 1 per 10 CTs deployed
-------------------------------------------------------------------------------
Table Continued
-------------------------------------------------------------------------------
Ref : Name Recommended qty
(minimum=1 where quoted)
-------------------------------------------------------------------------------
CT - Modem Shelf
-------------------------------------------------------------------------------
888-0008 : DA TU card 1 per 20 DA Modem shelves deployed
-------------------------------------------------------------------------------
888-0007 : DA Shelf Controller card 1 per 20 DA Modem shelves deployed
-------------------------------------------------------------------------------
888-0010 : DA Modem card 1 per 8 DA Modem shelves deployed
-------------------------------------------------------------------------------
888-0009 : DA AU card 1 per 20 DA Modem shelves deployed
-------------------------------------------------------------------------------
888-0011 : DA Shelf PSU 1 per 20 DA Modem shelves deployed
-------------------------------------------------------------------------------
AC
-------------------------------------------------------------------------------
888-0008 : DA TU card 1 per 10 AC shelves deployed
-------------------------------------------------------------------------------
888-0005 : Monitor PSU card 1 per 10 AC shelves deployed
-------------------------------------------------------------------------------
888-0007 : DA Shelf Controller card 1 per 10 AC shelves deployed
-------------------------------------------------------------------------------
888-0011 : DA Shelf PSU 1 per 10 AC shelves deployed
-------------------------------------------------------------------------------
888-0012 : AC CU card 1 per 10 AC shelves deployed
(if 32k used)
-------------------------------------------------------------------------------
---------------------------- End of Schedule III -------------------------------
SCHEDULE IV
-----------
Prices for ACL Products
-----------------------
--------------------------------------------------------------------------------------------------------------
Item Qty Price
--------------------------------------------------------------------------------------------------------------
ST
--------------------------------------------------------------------------------------------------------------
R1 1-line 64k & 32k POTS internal plastic Subs Terminal, Ext Antenna, 1 $*
PSU, batteries and cable
--------------------------------------------------------------------------------------------------------------
R2 2-line 64k & 32k POTS internal plastic Subs Terminal, Ext Antenna, 1 $*
PSU, batteries and cable
--------------------------------------------------------------------------------------------------------------
N4 4-line 32k POTS modular unit, Antenna, Cable and PSS (no batt) 1 $*
--------------------------------------------------------------------------------------------------------------
N4 4-line 32k POTS modular unit, Antenna, Cable, PSU and batteries 1 $*
--------------------------------------------------------------------------------------------------------------
B1 ISDN 2B+D internal Subs Terminal, Ext Antenna, PSU, batteries and 1 $*
cable
--------------------------------------------------------------------------------------------------------------
L128 128kbps internal Subs Terminal, Ext Antenna, PSU and cable 1 $*
--------------------------------------------------------------------------------------------------------------
P1V2 512kbps data internal Subs Terminal, Antenna, PSU and cable 1 $*
--------------------------------------------------------------------------------------------------------------
M2 2-line 64k & 32k POTS Subs Terminal, Antenna, cable, PSU, batteries 1 $*
and cabinet
--------------------------------------------------------------------------------------------------------------
M4 4-line 32k POTS Subs Terminal, Antenna, cable, PSU, batteries and 1 $*
cabinet
--------------------------------------------------------------------------------------------------------------
M4/64 4-line 64k & 32k POTS Subs Terminal, Antenna, cable, PSU, 1 $*
batteries and cabinet
--------------------------------------------------------------------------------------------------------------
M8 8-line 32k POTS Subs Terminal, Antenna, cable, PSU, batteries and 1 $*
cabinet
--------------------------------------------------------------------------------------------------------------
M8/64 8-line 64k and 32k POTS Subs Terminal, Antenna, cable, PSU, 1 $*
batteries and cabinet
--------------------------------------------------------------------------------------------------------------
M16 16-line 32k POTS Subs Terminal, Antenna, cable, PSU, batteries and 1 $*
cabinet
--------------------------------------------------------------------------------------------------------------
DA Modules
--------------------------------------------------------------------------------------------------------------
CT Rack with combiner & 2 DA shelves 1 $*
--------------------------------------------------------------------------------------------------------------
CT Expansion Rack with alarm & 2 DA shelves 1 $*
--------------------------------------------------------------------------------------------------------------
CT Rack with combiner & 1 DA shelf 1 $*
--------------------------------------------------------------------------------------------------------------
CT Rack with combiner & 1 DA + 2 FA shelves 1 $*
--------------------------------------------------------------------------------------------------------------
CT Expansion Rack with alarm & 1 DA shelf 1 $*
--------------------------------------------------------------------------------------------------------------
Basic RF plug in set for CT (PA+MON+2PSU+DIPLNA) 1 $*
--------------------------------------------------------------------------------------------------------------
RF plug in expansion set for omni/multi-sector CT (PA+PSU+DIPLNA) 1 $*
--------------------------------------------------------------------------------------------------------------
Full redundant DA Card set for 1 rf channel (rf+AU+TU+SC+2PSU+6Modem) 1 $*
--------------------------------------------------------------------------------------------------------------
Basic DA Card set (rf+AU+TU+SC+2PSU) 1 $*
--------------------------------------------------------------------------------------------------------------
[*] Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
Table Continued
---------------------------------------------------------------------------------------------------------------
Item Qty Price
---------------------------------------------------------------------------------------------------------------
DA Modem Card 1 $*
---------------------------------------------------------------------------------------------------------------
AC Rack with alarm & 1 AC shelf 1 $*
---------------------------------------------------------------------------------------------------------------
AC Rack with alarm & 2 AC shelves 1 $*
---------------------------------------------------------------------------------------------------------------
Full redundant AC Card Set (CAS/V5.1) (2PSU+SC+8XTU+2CU+CTU+TU) 1 $*
---------------------------------------------------------------------------------------------------------------
Full redundant AC Card Set (V5.2) (2PSU+SC+2XTU+4CU+3CTU+TU) 1 $*
---------------------------------------------------------------------------------------------------------------
Basic AC Card Set (64kbit/s) (2PSU+SC+CTU+XTU) 1 $*
---------------------------------------------------------------------------------------------------------------
AC XTU card 1 $*
---------------------------------------------------------------------------------------------------------------
AC PTU card 1 $*
---------------------------------------------------------------------------------------------------------------
AC CTU card 1 $*
---------------------------------------------------------------------------------------------------------------
AC CU Card (32kbit/s ADPCM Compression Unit) 1 $*
---------------------------------------------------------------------------------------------------------------
Antenna Modules
---------------------------------------------------------------------------------------------------------------
Omni Antenna System, including feeder and install kit 1 $*
---------------------------------------------------------------------------------------------------------------
Directional Antenna System, including feeder and install kit 1 $*
---------------------------------------------------------------------------------------------------------------
Software
---------------------------------------------------------------------------------------------------------------
Sitespan hardware and full Client/Server software licence 1 $*
---------------------------------------------------------------------------------------------------------------
Sitespan main Licence 1 $*
---------------------------------------------------------------------------------------------------------------
Sitespan Shelf Licence 1 $*
---------------------------------------------------------------------------------------------------------------
Annual Maintenance/Upgrade charge for Sitespan 1 $
---------------------------------------------------------------------------------------------------------------
STMON software 1 $*
---------------------------------------------------------------------------------------------------------------
V5.1 licence per 1000 subs 1 $*
---------------------------------------------------------------------------------------------------------------
V5.2 licence per 2000 subs 1 $*
---------------------------------------------------------------------------------------------------------------
Airplan-Lite licence 1 $*
---------------------------------------------------------------------------------------------------------------
Airplan-full licence 1 $*
---------------------------------------------------------------------------------------------------------------
Other
---------------------------------------------------------------------------------------------------------------
Documentation set (Paper) 1 $*
---------------------------------------------------------------------------------------------------------------
Documentation set (CD ROM) 1 FOC
---------------------------------------------------------------------------------------------------------------
Site Survey (per day, excluding travel+exp) 1 $*
---------------------------------------------------------------------------------------------------------------
Installation (per day, excluding travel+exp) 1 $*
---------------------------------------------------------------------------------------------------------------
Radio Planning (per day, excluding travel+exp) 1 $*
---------------------------------------------------------------------------------------------------------------
Airspan Training (per day, excluding travel+exp) 1 $*
---------------------------------------------------------------------------------------------------------------
Type 55 Station alarm module for addition to any CT or AC rack 1 $*
---------------------------------------------------------------------------------------------------------------
END OF SCHEDULE IV
[*] Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
----------------------------- End of Schedule IV -------------------------------
