PURCHASE AGREEMENT
THIS AGREEMENT is made as of Oct. 27, 1999 (the "Effective Date") by and
between ADAPTIVE BROADBAND CORPORATION ("Adaptive Broadband"), a Delaware
corporation with a principal office at 0000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, XX
00000, and GLOBAL PACIFIC INTERNET __________ ("Buyer"), a California
corporation with a principal office at 000 Xxx Xxxx Xxxxx Xxxxx, Xxxxx 0000,
Xxxxxx, XX 00000.
Recital:
Adaptive Broadband is a developer, manufacturer and supplier of wireless
telecommunications equipment. Buyer desires to provide wireless
communications network services in Los Angeles and Orange Counties for
independent internet service providers and to otherwise re-sell the Products
(defined below) to those and other buyers within and for end-use in the United
States. Adaptive Broadband and Buyer each desire for Adaptive Broadband to
sell and Buyer to purchase such products for use in connection with those
services and for re-sale to those buyers, all on the terms and conditions set
forth in this Agreement.
Provisions:
NOW, THEREFORE, in consideration of the mutual representations, warranties and
covenants contained in this Agreement, the parties agree as follows:
1. SCOPE OF AGREEMENT.
a. Equipment. Buyer agrees to buy and Adaptive Broadband agrees to sell
to Buyer the products described in and in accordance with Exhibit A attached
to this Agreement ("Products") and the services described in Exhibit B
attached to this Agreement ("Services") under the terms and conditions of this
Agreement; provided, however, that after the first shipment of Products under
this Agreement, Buyer's obligation to purchase additional Products is subject
to the following:
i. Buyer will install and perform tests on that first shipment of
Products within 45 days after delivery to determine if they perform in
accordance with Adaptive Broadband's published, specifications in all material
respects. By that 45th day, Buyer will send written notice to Adaptive
Broadband indicating whether those first Products performed in accordance with
Adaptive Broadband's published specifications in all material respects and, if
not, provide detailed information concerning the tests performed and results
achieved.
ii. If Buyer's notice indicates proper performance was achieved as
described above or Buyer fails to give any notice within those 45 days, then
its purchase, obligations vest on the sooner of the date of the notice or that
45th day.
iii. If Buyer's notice indicates that proper performance was not
achieved as described above, then Buyer will grant Adaptive Broadband access
to its related facilities, equipment, personnel and test procedures and
records and allow Adaptive Broadband the opportunity to repair, replace, or
otherwise test those Products, with all expenses for Adaptive Broadband time,
travel, and related repairs, replacements and tests being borne by Adaptive
Broadband. If Buyer reasonably determines within 10 days following the initial
45 day period that those first Products still do not perform in accordance
with Adaptive Broadband's published specifications in all material respects,
then Buyer's purchase obligations beyond that first shipment are waived, null
and void. However, if Buyer does not so reasonably determine Product non-
performance within those additional 10 days, then its purchase obligations
vest on that 45th day.
iv. The date on which Buyer's purchase obligations vest as set forth
above (if at all) is referred to as the "Satisfaction Date".
v. Buyer and Adaptive Broadband will use commercially reasonable efforts
to avoid any delays in the initial installation and testing of that first
shipment of Products.
b. Purchase Orders. Buyer may issue purchase orders for any Products or
Services ("Purchase Orders") to Adaptive Broadband via mail or facsimile, in
form and content acceptable to Adaptive Broadband. The terms and conditions of
this Agreement will govern the relationship between the parties and each
Purchase Order. Therefore, each Purchase Order will automatically be deemed
to include all the terms and provisions of this Agreement, and any contractual
terms and conditions contained in a Purchase Order or its reverse side will
not apply and will be null and void, except to the extent that Adaptive
Broadband expressly accepts such other or additional terms and conditions in
writing with specific reference to the conflict or addition.
c. Shipping Fairness. In the event that Adaptive Broadband runs into
Product shortages or other circumstances where Product demand exceeds Adaptive
Broadband's Product supply, it will keep Buyer informed and treat Buyer
equitably with respect to the timing of shipments under Buyer purchase orders
and Adaptive Broadband will negotiate with Buyer in good faith in connection
with the satisfaction of those Adaptive Broadband obligations.
2.PRICING AND PAYMENT.
a. Pricing. All prices are FOB Adaptive Broadband's relevant facility or
its supplier's dock, as may be specified by Adaptive Broadband, and are valid
for the term of this Agreement. The prices for Products and Services are set
forth in Exhibit A and Exhibit B, respectively. Adaptive Broadband warrants
that the prices charged to Buyer now and in the future are not, on a per-unit
basis and concurrent time basis, less favorable than those currently and in
the future extended to other customers for the same or similar purchases in
similar quantities and on the same or similar terms.
b. Payment. All payments by Buyer will be made to Adaptive Broadband
pursuant to the payment terms and conditions set forth in Adaptive Broadband's
Standard Terms and Conditions of Sale, attached to this Agreement as Exhibit
C.
3. FORECASTING.
Each month, Buyer will provide Adaptive Broadband with (a) a rolling six month
forecast of specific Product unit requirements for each of those six months,
and (b) firm Purchase Orders covering its specific Product unit requirements
for a rolling 120 days before desire shipment. In the event that Adaptive
Broadband's scheduled shipment of certain Products ("Delayed Products") is
delayed for any reason other than Buyer's breach of this Agreement, then Buyer
may at its option suspend the shipment of other Products under previously
accepted purchase orders which were otherwise scheduled for shipment after the
Delayed Products, with that suspension being for a period up to the duration
of the delay of Delayed Products.
4. GENERAL TERMS AND CONDITIONS.
Adaptive Broadband's Standard Terms and Conditions of Sale is attached to this
Agreement as Exhibit C and is hereby incorporated by reference into this
Agreement and made a part hereof.
5. TRAINING.
Training is offered by Adaptive Broadband to Buyer as and to the extent set
forth in Exhibit D.
6. REPRESENTATIONS, WARRANTIES, AND COVENANTS.
a. By Adaptive Broadband. Adaptive Broadband represents and warrants to
Buyer and covenants that: (i) Adaptive Broadband has all corporate power and
authority to enter into this Agreement and consummate the transactions
contemplated hereby. (ii) Adaptive Broadband shall not utilize, in any manner
whatsoever the corporate names or any trademark or trade name or copyright
rights belonging to Buyer in connection with any equipment or service without
the prior written
approval of Buyer. This requirement of consent will survive the expiration or
early termination of this Agreement. Adaptive Broadband will not contest the
validity of any of Buyer's or other Product manufacturer's patents,
trademarks, trade names or copyrights used in connection with Products. (iii)
All governmental approvals, permits, and authorizations from all applicable
parties which are necessary for the performance by Adaptive Broadband of its
obligations under this Agreement, and in furtherance of its purposes set forth
in the recitals above, will be timely obtained and maintained by Adaptive
Broadband at its own expense. (iv) Adaptive Broadband is free to make this
Agreement and the making hereof and/or performance hereunder by it or any of
its officers, directors, employees, contractors, consultants, and agents will
not violate the legal and/or equitable rights or interests of any third party.
b. By Buyer. Buyer represents and warrants to Adaptive Broadband and
covenants that: (i) Buyer has all corporate power and authority to enter into
this Agreement and consummate the transactions contemplated hereby. (ii)
Buyer shall not utilize, in any manner whatsoever the corporate names or any
trademark or trade name or copyright rights belonging to Adaptive Broadband or
other Product manufacturers in connection with any equipment or service
without the prior written approval of Adaptive Broadband or the relevant
manufacturer. This requirement of consent will survive the expiration or early
termination of this Agreement. Buyer will not contest the validity of any of
Adaptive Broadband's or other Product manufacturer's patents, trademarks,
trade names or copyrights used in connection with Products. (iii) All
governmental approvals, permits, and authorizations from all applicable
parties which are necessary for the performance by Buyer of its obligations
under this Agreement, and in furtherance of its purposes set forth in the
recitals above, will be timely obtained and maintained by Buyer at its own
expense. (iv) Buyer is free to make this Agreement and the making hereof
and/or performance hereunder by it or any of its officers, directors,
employees, contractors, consultants, and agents will not violate the legal
and/or equitable rights or interests of any third party.
c. Notwithstanding the foregoing, either party may make any public
disclosure it believes in good faith is required by applicable law or any
listing or trading agreement concerning its publicly-traded securities.
7.TERM AND TERMINATION.
a. Term. This Agreement will be effective as of the Effective Date and
will continue for the period ending the earlier of 48 months thereafter or 36
months after the Satisfaction Date (as defined in Exhibit A), subject to
earlier termination in accordance with this Agreement.
b. Termination. Adaptive Broadband and Buyer each may by written notice
to the other terminate this Agreement:
I. If a receiver is appointed for the other party or its property;
ii. If the other party becomes insolvent or unable to pay its debts as
they mature in the ordinary course of business or makes an assignment for the
benefit of its creditors;
iii. If any proceedings are commenced by or for the other party under
bankruptcy, insolvency, or debtor's relief law, and those proceedings will not
be vacated or set aside or stayed within sixty (60) days from the date of the
commencement thereof;
iv. If the other party is sequestered by any government authority;
v. If Buyer is liquidated, dissolved, or sells all or substantially all
of its assets;
vi.If Adaptive Broadband is not satisfied with the sales or promotional
performance of Buyer.
vii.If Buyer is not satisfied with the performance of Adaptive Broadband
under this Agreement.
c. Upon Expiration or Termination. Upon expiration or early termination
of this Agreement for any reason, and notwithstanding that expiration or
termination:
I. All provisions of this Agreement will survive with respect to each
Purchase Order accepted by Adaptive Broadband prior to the effective date of
the expiration or termination until each party's obligations with respect to
that Purchase Order is either satisfied or waived;
ii. Termination of this Agreement shall be without prejudice to the
rights and remedies of the party which may have accrued to either party as at
the date of expiration or termination.
iii. Notwithstanding the expiration or early termination of this
Agreement, Sections 7 and 8 and the provisions of Exhibit C ("Terms and
Conditions") as they apply to any outstanding Purchase Orders shall remain in
full force and effect and Adaptive Broadband shall still make available in
accordance with the terms hereof Services to which Buyer is otherwise entitled
in respect of Products supplied to Buyer prior to the date of termination.
iv. Notwithstanding the expiration or early termination of this
Agreement, the 5% additional payment provisions of Exhibit A and the
prerequisites of those payment provisions will survive until Buyer's
obligations under those provisions, if any exist immediately before that
expiration or termination, are satisfied.
v. Notwithstanding the expiration or early termination of this
Agreement, the "Confidentiality" provision of Exhibit C will survive for a
period of 5 years thereafter.
vi.Buyer will within 30 days after expiration or termination return to
Adaptive Broadband in (at Buyer's sole cost and expense) (or at Adaptive
Broadband's request eradicate or destroy): all literature, manuals and
materials supplied to it by Adaptive Broadband and which are in Buyer's
possession but which are not needed by Buyer in connection with installed
Product; all equipment provided to it by Adaptive Broadband and which Buyer
did not purchase, in the condition in which it was sent by Adaptive Broadband;
all tangible and intangible embodiments of Adaptive Broadband intellectual
property, including software; and any other items which Adaptive Broadband may
reasonably request.
8. MISCELLANEOUS
a. Sole Agreement: Amendment: Waivers. This Agreement (together with its
Exhibits and their attachments which are hereby incorporated into this
Agreement by reference and made a part hereof) contains the entire
understanding between Adaptive Broadband and Buyer with respect to its subject
matter and supersedes all prior discussions, agreements and understandings
between them with respect to that subject matter. All amendments hereto and
all agreements between the parties supplemental to this Agreement must be in
writing and signed by the parties hereto. The waiver by either party of a
breach or violation of any provision of this Agreement must be in writing and
will not operate or be construed as a waiver of any subsequent breach or
violation.
b. Independent Contractor. Each party acknowledges and agrees that this
Agreement establishes an independent contractor relationship and each
disclaims the existence of any employer/employee relationship or partnership
or joint venture relationship between them. Neither party has authority to
act for, represent, or bind the other and neither will take or fail to take
any action inconsistent with this paragraph.
c. Liability and Indemnification. The extent of Adaptive Broadband's
liabilities to Buyer are solely and exclusively set forth in Exhibit C.
Neither Adaptive Broadband nor Buyer will be liable under this Agreement for
any consequential damage including loss of clientele, loss of business, loss
of data, or loss of profits. Buyer will not be entitled to an indemnity for
goodwill or other compensation upon termination of this Agreement at any time
for any reason.
d. Assignment. Neither party may assign either this Agreement or any of
its rights, interests or obligations hereunder without the prior written
approval of the other party, which consent shall not be unreasonably withheld
or delayed. Notwithstanding the foregoing, each party may assign this
Agreement upon notice to, but without consent of the other party, to an
affiliate or successor in interest in the event of a merger, consolidation, or
sale of all or substantially all of the Assignor's business, assets, or
capital stock, or all or substantially all of the business or assets of the
Product line; provided, however, that the assignee shall expressly assume the
assignor's obligations under this Agreement, be subject to all of the terms
and conditions of this Agreement, and have the financial and business strength
to satisfy the assignor's obligations under this Agreement.
e. Severability. If any provision of this Agreement is determined by a
court of competent jurisdiction to be unenforceable or illegal, then it will
be deemed removed from the other provisions of this Agreement which will
remain in effect.
f. Headings. Headings in this Agreement are included for convenience only
and themselves have no force or effect.
g. Property. Without limiting the other provisions of this Agreement, any
ideas, concepts, inventions, know-how, data-processing and other techniques,
software or documentation developed by Adaptive Broadband (alone or jointly
with Buyer) in connection with any Products or Services will be the exclusive
property of Adaptive Broadband.
h. Publicity. Neither party shall issue any press release or make any
public announcement relating to this Agreement or its subject matter without
the prior written approval of the other, provided that either party may make
any public disclosure it believes in good faith is required by applicable law
or any listing or trading agreement concerning its publicly-traded securities
(in which case the disclosing party will use its best efforts to advise the
other party prior to making the disclosure).
i . Governing Law and Related Matters. This Agreement and each purchase
order accepted by Adaptive Broadband will be governed by and construed in
accordance with the internal laws of the State of California, USA, including
the U.C.C. as adopted by that State, but without reference to conflict of laws
principles. The United Nations Convention on the International Sale of Goods
will not apply to this Agreement. Buyer will observe and comply with all
applicable governmental laws, rules and regulations. Buyer will promptly
indemnify Adaptive Broadband for all damages, fines, and related expenses
(including attorneys' fees) resulting from or arising out of Buyer's violation
of any such law, rule or regulation or breach of this paragraph.
j.Notices. Except as otherwise provided in this Agreement, all notices,
requests, and other communications under this Agreement will be in writing and
sent by registered post or facsimile addressed to:
If to Adaptive Broadband, to: If to Buyer to:
Adaptive Broadband Corporation Xxxx Xxxxxxxxx
0000 Xxxxxxxx Xxxxxx Global Pacific Internet
Xxxxxxxxx, XX 00000 000 Xxxx Xxxxx Xxxxx, Xxxxxx
Attn: Xxxxxxxxx Xxxxx Attn: Xxxxx Xxxxxx
Fax: (000) 000-0000 Fax: (000) 000-0000
With a copy to:
Adaptive Broadband Corporation __________N/A_______________
0000 Xxxxxxxx Xxxxxx ____________________________
Xxxxxxxxx, XX 00000 ____________________________
Attn: General Counsel Attn: ______________________
Fax: (000) 000-0000 Fax: ______________________
Any notice sent by fax shall be deemed to be delivered the next working day
following confirmed transmission, and any notice sent by post shall be deemed
to be delivered five working days following the date of posting. Either party
may change the address under this section by giving the other party proper
notice.
IN WITNESS WHEREOF, Adaptive Broadband and Buyer each executed and deliver
this Agreement as of the date fast written above.
Buyer: Adaptive Broadband Corporation:
Co Name: Global Pacific Internet
By: /s/ Xxxx Xxxxxxxxx By: /s/ Xxxxxxxxx X. Xxxxx
Name: Xxxx Xxxxxxxxx Name: Xxxxxxxxx X. Xxxxx
Title: CEO Title: Sr. V.P.
Date: 10/27/99 Date: Oct. 27, 1999
TABLE OF EXHIBITS
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Exhibit A - Products and Related Pricing
Exhibit B - Services and Related Pricing
Exhibit C - Adaptive Broadband's Standard Terms and Conditions of Sale
Exhibit D - Training and Related Pricing
