EXHIBIT 10.9
FINAL: 9/4/98
PRODUCT DEVELOPMENT SERVICES AGREEMENT
This PRODUCT DEVELOPMENT AND SERVICES AGREEMENT ("AGREEMENT") is made
effective as of Sept. 4, 1998, by and between interWAVE Communications
International Limited, a company organized under the laws of Bermuda
(INTERWAVE"), and ADC Telecommunications, Inc., a Minnesota corporation ("ADC").
RECITALS
A. interWAVE and ADC are parties to that certain Purchase/Resale
Agreement dated effective as of February 27, 1997, as amended by that certain
Amendment #1 dated October 14, 1997 ("Amendment No. 1"), as supplemented by that
certain Frame Contract dated October 14, 1997 ("Frame Contract"), and amended by
that certain Amendment No. 2 dated March 30, 1998 ("Amendment No. 2")
(collectively referred to as the "PURCHASE/RESALE AGREEMENT") under which ADC is
a reseller of interWAVE products.
B. interWAVE desires to obtain the services of ADC to assist in
developing the PCS 1900 version of the BSC Software and BTS Radio Subsystems
(the "GSM 1900 PRODUCT"), according to the Market Requirements Document attached
hereto as EXHIBIT A (the "REQUIREMENTS"), as well as certain other systems test
and documentation services (collectively, the "SERVICES," as defined in more
detail below), and ADC is willing to provide the Services, subject to the terms
and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants, representations and warranties contained in this Agreement, interWAVE
and ADC agree as follows:
1. APPOINTMENT & SERVICES
(a) APPOINTMENT AND ACCEPTANCE.
InterWAVE hereby retains ADC to provide the development and
other services set forth below (individually and collectively, the
"SERVICES"), and ADC hereby accepts such appointment on the terms and
conditions contained herein.
(b) DEVELOPMENT OF THE GSM 1900 PRODUCT.
ADC will use all commercially reasonable efforts to develop
the Production Release of the GSM 1900 Product ("COMPLETION") for
worldwide commercialization in accordance with the Requirements and the
stages of development activities and timelines set forth on the
attached EXHIBIT B (the "DEVELOPMENT PROGRAM"). Exhibit B is intended
only as a general description of the parties' expectations with respect
to the
goals and estimated development costs and timelines with respect to the
GSM 1900 Product, and the specific details of the Development Program,
including the Requirements, may be modified by written agreement of the
parties, which modifications shall be made in good faith to accurately
reflect the actual costs and timeframe for development of the GSM 1900
Product.
(c) SYSTEMS TESTING.
Upon request by interWAVE, ADC shall perform systems
integration level testing in respect of certain interWAVE products.
(d) PRODUCT DOCUMENTATION.
Upon request by interWAVE, ADC shall assist interWAVE in the
preparation of certain product guides, end-user application guides and
other product documentation in respect of certain interWAVE products.
(e) EXPENSES; COOPERATION.
ADC, at its sole cost and expense, will furnish the supplies
and research, engineering and other personnel reasonably necessary to
perform such Services, including in connection with the development of
the GSM 1900 Product for commercialization, interWAVE will fully
cooperate with ADC, at interWAVE's sole expense, in developing the GSM
1900 Product, including, without limitation, providing the necessary
technical and administrative personnel reasonably requested by ADC to
assist in the development efforts and to permit ADC personnel to
utilize interWAVE facilities to the extent reasonably necessary for the
development of the GSM 1900 Product for commercialization.
(f) STANDARD OF CARE.
In performing the Services hereunder, ADC hereby warrants to
interWAVE that it will perform all Services in a professional and
timely manner and substantially in accordance with the standards and
practices of care, skill and diligence customarily observed by similar
companies under similar circumstances at the time they are rendered.
(g) COMPENSATION.
As compensation for ADC's performing the Services hereunder,
interWAVE shall pay to ADC a development fee comprised of the
components set forth below.
(1) In consideration for the performance by ADC of development
Services relating to the GSM 1900 Product, ADC shall be entitled to
receive a development fee equal to $100 per hour; provided, however,
that the aggregate cost of the Services
provided in connection with the development of the GSM 1900 Product
through and including February 1999 shall not exceed, in the aggregate,
$1,785,100 (including any costs already incurred to date). [After the
initial term of this Agreement, such rates may be increased on [ninety
(90)] days written notice by an amount not to exceed (i) the percentage
increase in the Consumers Price Index - All Urban Markets, for the
relevant period, or (ii) [five percent (5%)], whichever is greater.]
(2) In consideration for the performance by ADC of systems
integration level testing Services, interWAVE shall pay to ADC a
service fee of $100 per hour.
(3) In consideration for the performance by ADC of product
documentation Services, interWAVE shall pay to ADC a documentation fee
of $65 per hour.
Attached hereto as EXHIBIT C is a schedule showing all costs incurred
for Services already performed, as well as all projected costs of
Services to be performed through Completion.
(h) INVOICES; PAYMENT.
(1) ADC shall invoice interWAVE for all Services performed on
a quarterly basis. Such invoices shall include such documentation
reasonably required to substantiate the fees and expenses so invoiced.
Except as set forth in Section 1(i) below, all invoices shall be
payable within [thirty (30)] calendar days of the invoice date. All
amounts not paid by interWAVE within the payment period shall bear an
additional charge of [one and one-half percent (1.5%)] per month until
paid.]
(2) The parties hereby acknowledge and agree that through and
including July 31, 1998, ADC has already performed Services having a
value of [$1,089,900], [$755,500] of which relate to the development of
the GSM 1900 Product, [$290,200] of which relate to systems integration
level testing services, and [$44,200] of which relate to product
documentation services, all as reflected in EXHIBIT C.
(i) EQUITY IN LIEU OF CASH.
In lieu of paying cash for ADC's Services, interWAVE may, in
its sole discretion, elect to make payment to ADC in the form of the
issuance of shares of interWAVE's [Preferred Convertible Stock] (the
"Shares") at a valuation of [$7.00] per share.. The valuation of the
Shares to be issued to ADC may be adjusted on a quarterly basis, upon
the mutual agreement of ADC and interWAVE. [At the time that any
invoice is due hereunder, interWAVE may provide ADC with written notice
of its election to convert all or part of such invoice into Shares.
Each year [on June 30 and December 31] interWAVE shall issue to ADC
such number of Shares having a value equal to the aggregate amount of
any invoices so convened.] Concurrent with each such issuance, ADC
agrees to execute and deliver to interWAVE any documentation that
interWAVE reasonably requests in connection therewith, including
interWAVE's
standard investment letter. [ADC shall also be entitled to
registration rights in respect of any Shares issued as described in
EXHIBIT D hereto.]
(j) DISCLAIMER OF WARRANTIES.
EXCEPT AS SET FORTH IN SECTIONS 1(B) and 1(F), THE GSM 1900
PRODUCT AND ALL OTHER MATERIALS AND INFORMATION DELIVERED TO INTERWAVE
AS A RESULT OF THIS AGREEMENT OR ADC's SERVICES PROVIDED HEREUNDER ARE
PROVIDED "AS IS," WITH NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED,
INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AS WELL AS ANY
WARRANTIES ALLEGED TO HAVE ARISEN FROM CUSTOM, USAGE OR PAST DEALINGS
BETWEEN THE PARTIES. Without limiting the generality of the foregoing,
ADC does not guarantee the design, performance, compatibility or use of
the GSM 1900 Product.
2. GRANT OF DISTRIBUTION RIGHTS
(a) GRANT OF DISTRIBUTION RIGHTS IN ACCORDANCE WITH THE PURCHASE/
RESALE AGREEMENT.
Upon completion of the development of the GSM 1900 Product,
the parties shall amend the Purchase/Resale Agreement to include the
GSM 1900 Product as a "Product" for all purposes therein and in
accordance with the terms and subject to the conditions contained
therein; provided, however, that ADC's right to resell the GSM 1900
Product shall be on a non-exclusive basis throughout the world. In
connection therewith, upon completion of the development of the GSM
1900 Product, the parties shall agree in good faith upon the price for
the GSM 1900 Product and shall amend Schedule 2.1.1. of the
Purchase/Resale Agreement accordingly.
3. OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS
(a) OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS ACQUIRED PRIOR TO
THIS AGREEMENT.
Each party acknowledges that, unless specifically otherwise
set forth in this Agreement, the other party will continue to have the
exclusive rights to all Intellectual Property Rights (as hereinafter
defined) that such party owned prior to the execution of this
Agreement. "INTELLECTUAL PROPERTY RIGHTS" means all proprietary rights
and information, including, without limitation, all patents, patent
applications, divisions, continuations and continuations-in-part,
ideas, conceptions and inventions (whether or not patentable, reduced
to practice or made the subject of a pending patent application),
copyrights, copyrighted or copyrightable works and trademarks (whether
or not registered), drawings, designs, mask works or registrations
thereof, semi-conductor topography rights, know-how, trade secrets,
manufacturing and production processes
and techniques, research and development information and other
confidential technical information, as well as all rights in and to
computer programs, data files and software.
(b) INTERWAVE INTELLECTUAL PROPERTY RIGHTS.
The parties acknowledge and agree that all work-product
derived from the Services performed by ADC hereunder (the "WORK
PRODUCT"), including, without limitation, the GSM 1900 Product, the
systems integration level test results and all product guides, end-user
application guides and other product documentation prepared by ADC,
shall be considered to be a "work made for hire" and that such
work-product and the Intellectual Property Rights embodied therein are
and shall become the sole and exclusive property of interWAVE. If and
to the extent that interWAVE does not originally acquire full legal
ownership to the Work Product, ADC shall and hereby does assign to
interWAVE ADC's entire right, title and interest therein. ADC shall
not, and it shall cause its affiliates not to, seek any copyright,
patent, or other protection for the Work Product, and interWAVE shall
have the sole right to seek copyright, patent and other protection for
such Work Product. At interWAVE's reasonable request and expense, ADC
shall take, and shall cause its affiliates to take, all actions
requested by interWAVE in order to protect and perfect its rights in
and to the Work Product in the United States and throughout the world.
4. CONFIDENTIALITY
(a) CONFIDENTIALITY AND USE OF SUPPLIED INFORMATION.
All proprietary information, data, know-how, designs,
drawings, specifications, test and research results, market studies,
price or cost information, supplier or customer lists, regulatory files
to the extent they are not public information by law and other similar
materials (collectively, "CONFIDENTIAL INFORMATION") supplied to one
party (the "RECIPIENT") by the other party (the "DELIVERER") in
connection with this Agreement (whether before or after the date
hereof) will be treated as trade secrets and held in confidence. The
Recipient will use Confidential Information of the Deliverer only in a
manner consistent with this Agreement and may not (i) disclose any
Confidential Information that relates to trade secrets, know-how,
designs, drawings, specifications or other technology-based information
received from the Deliverer to any third party during the term of this
Agreement or for a period of seven (7) years from the date of
disclosure, whichever is longer, without the written permission of the
Deliverer; or (ii) disclose any Confidential Information that is
financial in nature or other nontechnical Confidential Information
received from the Deliverer to any third party during the term of this
Agreement or a period of two (2) years from the date of disclosure,
whichever is longer, without the written permission of the Deliverer.
(b) COMMUNICATION OF CONFIDENTIAL INFORMATION.
Confidential Information may be communicated orally, visually,
in writing or in any other recorded or tangible form. Data and
information shall be considered to be Confidential Information (i) if
Disclosing Party, orally or in writing, has advised Recipient of their
confidential nature; (ii) if, due to their character or nature, a
reasonable person in a like position and under like circumstances as
Recipient would treat them as confidential; or (iii) if Disclosing
Party has marked them as such; provided, however, that failure to xxxx
any of the Confidential Information as confidential shall not affect
its status as part of the Confidential Information under the terms and
conditions of this Agreement.
(c) LIMITATIONS ON RESTRICTIONS.
Confidential Information will not include information which:
(1) was already lawfully in the possession of the Recipient
through independent means at the time of disclosure thereof;
(2) is or later becomes part of the public domain through no
fault of the Recipient;
(3) is lawfully received from a third party having no
obligations of confidentiality to the Deliverer;
(4) is independently developed by the Recipient or its agents
or employees who did not receive or have access to the Confidential
Information;
(5) is required to be disclosed by order of a governmental
agency or by a court of competent jurisdiction; provided, the Recipient
contemplating such a disclosure will give reasonable notice thereof to
the Deliverer and will render such cooperation (at the Deliverer's
expense) as is reasonably requested to limit or mitigate such
disclosure of the Deliverer's Confidential Information; or
(6) is required to be disclosed to a regulatory authority for
the purpose of obtaining necessary approvals, consents or licenses for
the GSM 1900 Product;
provided that in each of the foregoing exceptions the burden of proof
that any information does not constitute Confidential Information shall
be on the Recipient.
(d) CONFIDENTIALITY OF AGREEMENT.
Subject to Section 4(c) above, the terms of this Agreement
will be kept confidential and not disclosed to any third party without
the prior written consent of the
other party; provided, however, that each party hereby consents to the
other party's disclosure of such information:
(1) on a confidential basis to the disclosing party's
professional advisors;
(2) any proceeding brought by one of the parties hereto
against the other party for the enforcement of this Agreement or
seeking remedy for the breach or violation of this Agreement; or
(3) such disclosures as the disclosing party reasonably deems
necessary in order for such party to comply with applicable laws or
regulations or the rules of any stock exchange or trading system on
which such parties' stock is listed or regularly traded.
(e) NON-SOLICITATION OF EMPLOYEES.
Each of interWAVE and ADC, on behalf of itself and its
Affiliates, agrees not to employ or engage any employee of the other
which was involved on the Development Project during the term hereof
and for one (1) year from Completion without obtaining the prior
written approval of the other party.
(f) PRESS RELEASES.
No press release or other written or oral statement to the
public in connection with or alluding to work performed under this
Agreement or the relationship between the parties which has any direct
or indirect reference to interWAVE or ADC will be made by either party
unless the party intending to make such press release or statement
first provides the other party an opportunity to review and comment on
such press release or statement. After such a press release or other
public statement has been made, the substantive contents of such press
release or other public statement may be repeated by either party in
subsequent press releases or public statements.
(g) SPECIFIC PERFORMANCE.
Each of interWAVE and ADC acknowledges and agrees that money
damages may not be an adequate remedy for any material breach of this
Section 4 by a party. Accordingly, in such event the non-breaching
party will be entitled to the remedies of specific performance and/or
injunctive relief to enforce or prevent any violations of any of the
provisions of this Section 4 from any court of law or equity of
competent jurisdiction. Such remedies will be in addition to and not
exclusive of any other remedies available to the non-breaching party
under the terms of this Agreement at law or in equity.
5. TERM AND TERMINATION
(a) TERM.
The term of this Agreement as it relates to the development of
the GSM 1900 Product shall commence on the date hereof and, unless
modified by mutual agreement by the parties or terminated pursuant to
the terms of this Section 5, will continue until Completion.
(b) TERMINATION OF DEVELOPMENT PROGRAM FOR FAILURE TO COMPLETE.
In the event that GSM 1900 Product is not fully developed
within 5 months of the date hereof, then the parties shall meet and
discuss in good faith further necessary revision to the Development
Program. If the parties are unable to agree on the required
modifications to the goals and estimated development costs and
timelines with respect to the GSM 1900 Product, then either party may,
by providing the other party with thirty (30) days advance written
notice, terminate the Development Program.
(c) TERMINATION WITHOUT CAUSE/CANCELLATION OF SERVICES.
THE ABOVE NOTWITHSTANDING, EITHER PARTY MAY TERMINATE THIS
AGREEMENT OR CANCEL A SPECIFIC SERVICE AT ANY TIME AND FOR ANY REASON,
WITH OR WITHOUT CAUSE, UPON THE GIVING OF [NINETY (90)] DAYS ADVANCE
WRITTEN NOTICE TO THE OTHER PARTY. If one or more specific Service(s)
are canceled, ADC shall no longer be obligated to perform such
Service(s) and interWAVE shall no longer be obligated to pay ADC the
fee attributable to such canceled Service(s) from and after the
effective date of such cancellation, but shall remain obligated to pay
for all Services performed prior to such date.
(d) TERMINATION OF DEVELOPMENT PROGRAM FOR MATERIAL BREACH.
Either party may terminate the Development Program, in whole
or in part, immediately by written notice to the other party on the
occurrence of any of the following events:
(1) any material breach or default by the other party,
provided that the non-breaching party shall have notified the breaching
party in writing specifying the nature of the breach or default and
within sixty (60) days after the breaching party's receipt of such
notice, such breach or default has not been remedied or the parties
have not agreed to a plan for curing the breach or default; or
(2) if the other party is adjudicated a bankrupt, becomes
insolvent, admits in writing its insolvency or inability to pay its
debts or perform its obligations as they mature, or has a receiver of
its assets or property appointed because of insolvency,
makes a general assignment for the benefit of creditors, institutes
any proceeding for the reorganization of its affairs, or if any such
proceeding is instituted against such other party and not dismissed
with prejudice within sixty (60) days.
(e) RETURN OF MATERIALS UPON TERMINATION.
Upon termination of this Agreement for any reason, ADC shall
furnish to interWAVE all completed deliverables, work in process,
incomplete work and other material embodying such work performed in
connection with the provision of the Services under this Agreement.
(f) SURVIVAL OF CERTAIN RIGHTS AND OBLIGATIONS.
On termination or expiration of this Agreement, each party
shall immediately return to the other party all Confidential
Information of the other party in its possession, and interWAVE shall
fulfill its obligation to provide payment to ADC pursuant to Section
1(c) above for all costs incurred by ADC up to and including the date
of termination. In addition, notwithstanding anything in this Agreement
to the contrary, Sections 1(g), 1(h), 1(i), 1(j), 2, 3, 4, 6, 7 and 8
shall survive termination of this Agreement, however caused, and shall
continue thereafter in full force and effect
6. REPRESENTATIONS AND WARRANTIES
(a) REPRESENTATIONS AND WARRANTIES OF ADC.
ADC hereby represents and warrants to interWAVE that as of the
date hereof:
(1) ADC is a corporation duly organized, validly existing and
in good standing under the laws of the State of Minnesota, and has the
requisite corporate power and authority to perform its obligations
under this Agreement.
(2) Neither the execution or delivery of, nor the performance
of or compliance with, this Agreement, nor the consummation of the
transactions contemplated hereby will, with or without the giving of
notice or passage of time, result in any breach of, or constitute a
default under, or result in the imposition of any lien or encumbrance
upon any asset or property of ADC pursuant to any agreement or other
instrument to which ADC is a party or by which it or any of its
properties, assets or rights is bound or affected. ADC is not subject
to any restrictions which would prohibit it from entering into or
performing its obligations under this Agreement.
(3) This Agreement has been duly authorized by all necessary
corporate action on behalf of ADC, has been duly executed and delivered
by authorized officers of ADC, and is a valid and binding agreement on
the part of ADC that is enforceable against ADC in accordance with its
terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency, moratorium, reorganization or other similar law
affecting the enforcement of creditors rights generally and to judicial
limitations on the enforcement of the remedy of specific performance
and other equitable remedies.
(4) No representation or warranty in this Agreement contains
any untrue statement of a material fact or omits or will omit to state
any material fact required to be stated herein or therein or necessary
to make the statements herein not misleading.
(b) REPRESENTATIONS AND WARRANTIES OF INTERWAVE.
interWAVE hereby represents and warrants to ADC that as of the
date hereof:
(1) interWAVE is a corporation duly organized,
validly existing and in good standing under the laws of Bermuda, and
has the requisite corporate power and authority to perform its
obligations under this Agreement.
(2) Neither the execution or delivery of, nor the
performance of or compliance with, this Agreement, nor the consummation
of the transactions contemplated hereby will, with or without the
giving of notice or passage of time, result in any breach of, or
constitute a default under, or result in the imposition of any lien or
encumbrance upon any asset or property of interWAVE pursuant to, any
agreement or other instrument to which interWAVE is a party or by which
it or any of its properties, assets or rights is bound or affected.
interWAVE is not subject to any restrictions which would prohibit it
from entering into or performing its obligations under this Agreement.
(3) This Agreement has been duly authorized by all
necessary corporate action on behalf of interWAVE, has been duly
executed and delivered by authorized officers of interWAVE, and is a
valid and binding agreement on the part of interWAVE that is
enforceable against interWAVE in accordance with its terms, except as
the enforceability thereof may be limited by bankruptcy, insolvency,
moratorium, reorganization or other similar law affecting the
enforcement of creditors' rights generally and to judicial limitations
on the enforcement of the remedy of specific performance and other
equitable remedies.
(4) No representation or warranty in this Agreement
contains any untrue statement of a material fact or omits or will omit
to state any material fact required to be stated herein or therein or
necessary to make the statements herein not misleading.
7. LIMITATION OF LIABILITY
IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY HEREUNDER
FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR ECONOMIC LOSSES
OR DAMAGES, REGARDLESS OF THE LEGAL THEORY UNDER WHICH ANY OTHER PARTY
INCURS SUCH
DAMAGES. THIS LIMITATION OF LIABILITY SHALL APPLY EVEN IF THE PARTY
SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR
DAMAGE BY ANY OTHER PARTY. [IN NO EVENT SHALL THE LIABILITY OF ADC
ARISING IN CONNECTION WITH ANY SERVICES PROVIDED HEREUNDER EXCEED THE
ACTUAL AMOUNT PAID BY INTERWAVE TO ADC FOR SERVICES INVOLVED IN SUCH
CLAIM.]
8. MISCELLANEOUS
(a) DISCUSSION AND NON-BINDING MEDIATION.
Except for injunctive relief contemplated by Section 4(g) of
this Agreement, ADC and interWAVE will each use its good faith efforts
to resolve any dispute between them promptly and amicably and without
resort to any legal process, if feasible within forty-five (45) days of
receipt of a written notice by one party to the other party of the
existence of such dispute. Within thirty (30) days of receipt of such
notice, one (1) officer of each of interWAVE and ADC will promptly meet
in good faith to discuss such dispute. If such officers are unable to
resolve such dispute through negotiation within forty-five (45) days
after the receipt of the initial notice of dispute, then, unless the
parties otherwise mutually agree, the dispute will be submitted to
non-bonding mediation in Minneapolis, Minnesota, in accordance with the
Commercial Mediation Rules of the American Arbitration Association, as
modified herein. The parties will jointly appoint a mutually acceptable
independent mediator, seeking assistance in such regard from the
American Arbitration Association or another mutually agreed-upon
organization if they have been unable to agree upon such appointment
within 20 days from the conclusion of the negotiation period. The
parties agree to participate in good faith in the mediation and
negotiations related thereto for a period of 30 days following the
appointment of a mediator. If the parties are not successful in
resolving the dispute through the mediation by the end of such 30-day
period, then the dispute will be resolved through binding arbitration
pursuant to Section 7(b).
(b) ARBITRATION.
Except for injunctive relief contemplated by Section 4(f) of
this Agreement, any dispute or claim arising out of or relating to this
Agreement or the validity, interpretation, enforceability or breach of
this Agreement, which is not settled pursuant to Section 7(a), will be
settled by binding arbitration in accordance with the Commercial
Arbitration Rules of the American Arbitration Association then in
effect, as amended by the following:
(1) The Arbitral tribunal will be composed of three
arbitrators. Each party will appoint one arbitrator and the two
arbitrators so appointed will appoint the Chairman of the Arbitral
Tribunal. Failing the appointment of the arbitrator, or the Chairman
within 30 days, the Board of Arbitration of the American Arbitration
Association will appoint such arbitrator.
(2) All arbitration proceedings will be conducted in the
English language and the proceeding will be located in the County of
Santa Clara, California.
(c) INJUNCTIVE RELIEF.
It is expressly agreed among the parties hereto that monetary
damages would be inadequate to compensate a party hereto for any breach
by any other party of its covenants and agreements in Sections 3 and 4
hereof. Accordingly, the parties agree and acknowledge that any such
violation or threatened violation will cause irreparable injury to the
other and that, in addition to any other remedies which may be
available, such party will be entitled to injunctive relief against the
threatened breach of Sections 3 and 4 hereof or the continuation of any
such breach without the necessity of proving actual damages and may
seek to specifically enforce the terms thereof.
(d) APPLICABLE LAW.
This Agreement will be governed by and construed and enforced
in accordance with the laws of the State of California, excluding its
choice-of-laws or conflicts-of-law rules. Subject to the duties of the
parties to mediate and arbitrate certain disputes under Sections 7(a)
and (b) above, interWAVE and ADC hereby consent to the exclusive
jurisdiction of the state and federal courts of competent jurisdiction
sitting in the State of California. interWAVE and ADC each hereby
consent to service of process in the State of California.
(e) RELATIONSHIP.
This Agreement does not make either party the employee, agent
or legal representative of the other for any purpose whatsoever.
Neither party is granted any right or authority to assume or to create
any obligation or responsibility, express or implied, on behalf of or
in the name of the other party. In fulfilling its obligations pursuant
to this Agreement each party will be acting as an independent
contractor.
(f) ASSIGNMENT.
Neither party may assign or otherwise transfer its rights and
obligations under this Agreement without the prior written consent of
the other party, and any attempted assignment in violation of the
foregoing shall be null and void.
(g) NOTICES.
Notice permitted or required to be given under this Agreement
will be deemed sufficient if given in writing by facsimile, commercial
air delivery service or by registered or certified air mail, postage
prepaid, return receipt requested, addressed to the respective
addresses of the parties set forth below or at such other address as
the
respective parties may designate by like notice from time to time.
Notices so given will be effective upon the earlier of: (i) receipt
by the party to which notice is given (which, in the instance of a
facsimile, will be deemed to have occurred at the time that the
machine transmitting the facsimile verifies a successful
transmission of the facsimile); (ii) on the fifth business day
following the date such notice was deposited in the mail; or (iii)
on the second business day following the date such notice was
delivered to a commercial air delivery service. Notices will be
given as follows:
If to interWAVE: interWAVE Communications International Limited
000 Xxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxx Xxxx, XX 00000
Attn.: Xxxxxxxxx X. Xx, Ph.D.
Fax: (000) 000-0000
If to ADC: ADC Telecommunications, Inc.
00000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
Attn.: General Counsel
Fax: (000) 000-0000
(h) ENTIRE AGREEMENT.
This Agreement, including the exhibits and schedules attached
hereto and incorporated as an integral part of this Agreement,
constitutes the entire agreement of the parties with respect to the
subject matter hereof, and supersedes all previous proposals, oral or
written, and all negotiations, conversations or discussions heretofore
had between the parties related to this agreement.
(i) AMENDMENT.
This Agreement will not be deemed or construed to be modified,
amended, rescinded, canceled or waived, in whole or in part, other than
by written amendment signed by the parties hereto, except as expressly
provided in this Agreement.
(j) SEVERABILITY.
In the event that any of the terms of this Agreement are in
conflict with any rule of law or statutory provision or otherwise
unenforceable under the laws or regulations of any government or
subdivision thereof, such terms will be deemed stricken from this
Agreement, but such invalidity or unenforceability will not invalidate
any of the other terms of this Agreement and this Agreement will
continue in force, unless the invalidity or unenforceability of any
such provisions of this Agreement substantially violates, comprises an
integral part of or is otherwise inseparable from the remainder of this
Agreement.
(k) COUNTERPARTS.
This Agreement may be executed counterparts, and each such
counterpart will be deemed an original hereof.
(l) WAIVER.
No failure by either party to take any action or assert any
right hereunder will be deemed to be a waiver of such right in the
event of the continuation or repetition of the circumstances giving
rise to such right.
(m) FORCE MAJEURE.
In the event that a delay or failure of a party to comply with
any obligation set forth in this Agreement is caused by Force Majeure,
that obligation (other than the obligation to pay money when due and
owing) will be suspended during the continuance of the Force Majeure
condition. For purposes of this Agreement, "FORCE MAJEURE" means any
event beyond the reasonable control of the parties, including, without
limitation, fire, flood, storm, riot, strike, epidemic, war (declared
or undeclared), embargo and governmental action and decree. A party
whose performance is suspended hereunder will give prompt written
notice of any event of Force Majeure and such party's best reasonable
estimate of when such event will xxxxx. If an event of Force Majeure
continues unabated for more than six (6) months, either party will be
entitled to treat such event as a material breach of this Agreement and
may terminate this Agreement in accordance with Article 5 above.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the day and year first above written.
interWAVE Communications ADC Telecommunications, Inc.
International Limited
By: /s/ Xxxxxxxxx X. Xx By: /s/ X.X. Xxxxx
----------------------------------- ---------------------------------
Name: Xxxxxxxxx X. Xx Name: X.X. Xxxxx
----------------------------------- ---------------------------------
Title: Chairman, CEO & President Title: SNR Vice President
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