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EXHIBIT 10.40
SUBSCRIBER UNIT PURCHASE AGREEMENT
FOR NEXTEL INTERNATIONAL, INC.
This Agreement is entered into between Motorola, Inc., by and
through its iDEN Subscriber Group, having a place of business at 0000 Xxxx
Xxxxxxx Xxxxxxxxx; Ft. Xxxxxxxxxx, Xxxxxxx 00000 U.S.A. (hereinafter "Seller" or
"MOTOROLA") and Nextel International, Inc., a corporation of the State of
Washington, with a place of business at 0000 Xxxxxx Xxxxxx Xxxxx, Xxxxxx,
Xxxxxxxx 00000 (hereinafter, together with any wholly-owned subsidiary
previously accepted by the Seller, collectively known as "Buyer").
This agreement applies only for sales of Motorola iDEN subscriber
products for distribution outside of the United States. Buyer agrees to purchase
and Seller agrees to sell selected Motorola iDEN subscriber products
manufactured in Seller's facilities in Plantation, Florida, U.S.A., (hereinafter
"Products") during a term beginning on the date of the last signature hereto
("Effective Date"), and ending April 30, 2000 ("Initial Term"), under the terms
and conditions set forth in this Agreement. Buyer may purchase products
manufactured at Seller's other facilities under terms and conditions acceptable
to both parties at the time such purchases are desired.
PURCHASE ORDERS. All orders by Buyer shall be only upon the terms and conditions
of this Agreement. The only effect of any terms and conditions in Buyer's orders
or elsewhere shall be to request the time and number of units to be delivered,
subject to Seller's acceptance, but they shall not change, alter or add to the
terms and conditions of this Agreement in any other way. Except as provided
below, Seller's invoice shall also not change the terms and conditions of this
Agreement. Cancellation charges which shall include all costs incurred or
committed for may apply for any cancelled order. Seller shall use its reasonable
best efforts, including shipment to other Nextel properties, to mitigate any
costs incurred as a result of the Buyer's cancellation of an order within the
non-cancelable period. Purchase orders are non-cancelable fifteen (15) days or
less before requested ship date.
PRICING. Contract prices for Products require firm and prosecutable orders
thirty (30) days prior to requested ship date. Prices applicable to Products
sold pursuant to this Agreement are those negotiated from time to time by Nextel
Communications, Inc. and Motorola, Inc. In order for these prices to be
applicable, the purchase orders submitted to Seller must reference this
Agreement.
PAYMENT TERMS AND CONDITIONS. Seller will invoice Buyer for the Products on or
about the date of shipment thereof. Payment of each invoiced amount is due
within 30 days of the date of the invoice; [*]. The Buyer may prepay any
invoice, in part or in full, without penalty or premium at any time.
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* Confidential portions omitted and filed separately with the Commission
pursuant to an application for confidential treatment pursuant to Rule 24b-2
under the Securities and Exchange Act of 1934, as amended.
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[ * ]
[ * ]
FORECASTS. During the term of this Agreement, Buyer shall provide Seller,[*] a
continuous usage forecast for [*] to assist Seller in maintaining an orderly
production flow for the purpose of Buyer's delivery requirements. Buyer shall
state in the [*] Forecast the Product model numbers and projected purchase
volume by units for [*]. The [*] Forecast does not constitute a commitment by
the Buyer; however, Buyer's failure to provide such information may be
considered cause by Seller for excusable delivery delay.
DELIVERY AND TITLE. All deliveries are FCA Seller's plant, Plantation, Florida
USA. Each such delivery will be separately invoiced. DELIVERY DATES ARE BEST
ESTIMATES ONLY. Title to the Products will pass to Buyer at the FCA point
(Buyer's transport at Seller's plant). Buyer may purchase Products form Seller's
factory in Brazil under additional terms and conditions to be agreed upon by
both parties prior to such purchases.
FORCE MAJEURE. Neither party shall be liable for any delay or failure to perform
due to any cause beyond its reasonable control. Causes include, but are not
limited to strikes, acts of God, acts of the other party, interruptions of
transportation or inability to obtain necessary labor, materials or facilities,
or default of any supplier, or delays in regulatory authorization or license
grant. The delivery schedule shall be considered extended by a period of time
equal to the time lost because of any excusable delay. To the extent that Seller
is unable to manufacture and deliver the order, such order shall be reduced on a
pro-rata basis. In the event either party is unable to wholly or partially
perform for a period greater than forty-five (45) days because of any cause
beyond its reasonable control, either party may terminate any delayed order
without any liability.
LICENSE DISCLAIMER. Nothing contained herein shall be deemed to grant either
directly or by implication, estoppel, or otherwise, any license under any
patents, copyrights, trademarks or trade secrets of SELLER.
TAXES. Except for the amount, if any, of specific taxes stated in the Agreement,
the prices set forth herein are exclusive of any amount for Federal, State
and/or Local excise, sales, use, property, retailer's, occupation or any other
assessment in the nature of taxes however designated, on the Products and/or
services provided under this Agreement. If any such excluded tax, exclusive
however, of any taxes measured by Seller's net income or taxes based on Seller's
gross receipts or based on Seller's franchise, is determined to be applicable to
this transaction or to the extent Seller is required to pay or bear the burden
thereof, one hundred percent (100%) thereof shall be added to the prices set
forth herein and paid by Buyer. Personal property taxes assessed on the Products
after the date title transfers under this paragraph, shall be the responsibility
of Buyer. In the event Buyer claims exemption from sales, use or other such
taxes under
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* Confidential portions omitted and filed separately with the Commission
pursuant to an application for confidential treatment pursuant to Rule 24b-2
under the Securities and Exchange Act of 1934, as amended.
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this Agreement, Buyer shall hold Seller harmless of any subsequent assessments
levied by a proper taxing authority for such taxes, including interest,
penalties, and late charges.
Upon Seller's request, Buyer shall produce sufficient evidence within thirty
(30) days of such request to prove that Buyer has fulfilled its obligation
relating to all taxes, duties, and fees. If any such taxes, duties, or fees are
determined to be applicable to this transaction and notwithstanding Buyer's
responsibility, Seller is required to pay or bear the burden thereof, then the
prices set forth herein shall be increased by the amount of such taxes and any
interest or penalty, and Buyer shall pay to Seller the full amount of any such
increase no later than thirty (30) days after receipt of an invoice.
Customs clearance, or related costs pertaining to import of the Products are the
responsibility of Buyer. No such costs have been included in Seller's pricing.
TECHNICAL ASSISTANCE. Seller's warranty shall not be enlarged, and no obligation
or liability shall arise out of Seller's rendering of technical advice,
facilities or service in connection with Buyer's purchase of the Products
furnished.
LIMITATION OF LIABILITY. SELLER'S TOTAL LIABILITY, WHETHER FOR BREACH OF
CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE, IS
LIMITED TO THE PRICE OF THE PARTICULAR PRODUCTS SOLD HEREUNDER WITH RESPECT TO
WHICH LOSSES OR DAMAGES ARE CLAIMED. BUYER'S SOLE REMEDY IS TO REQUEST SELLER AT
SELLER'S OPTION TO EITHER REFUND THE PURCHASE PRICE, REPAIR OR REPLACE PRODUCT
(S) THAT ARE NOT AS WARRANTED. IN NO EVENT WILL SELLER BE LIABLE FOR ANY LOSS OF
USE, LOSS OF TIME, INCONVENIENCE, COMMERCIAL LOSS, LOST PROFITS OR SAVINGS OR
OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES TO THE FULL EXTENT SUCH MAY BE
DISCLAIMED BY LAW.
LOGOS AND TRADEMARKS. In order that Seller may protect its trademarks, trade
names, corporate slogans, corporate logo, goodwill and product designations,
Buyer, without the express written consent of Seller, shall have no right to use
any such marks, names, slogans or designations of Seller in the sales, lease or
advertising of any products or on any product container, component part,
business forms, sales, advertising and promotional materials or other business
supplies or material, whether in writing, orally or otherwise. Buyer agrees to
provide Motorola with advertising material containing any Motorola marks for
approval before such marks are used. Motorola agrees to review Buyer's
advertising material in a reasonable time and to not unreasonably withhold
approval thereof. To minimize the impact of this review on the Buyer, Motorola
will provide Buyer with guidelines on the use of Motorola logos. Compliance with
these guidelines shall serve to relieve Buyer from having to submit
advertisements for prior approval.
PARTY RELATIONSHIP. This Agreement does not create any agency, joint venture or
partnership between Buyer and Seller. Buyer shall not impose or create any
obligation or responsibility, express or implied, or make any promises,
representations or warranties on behalf of Seller, other than as expressly
provided herein.
WAIVER. The failure of either party to insist in any one or more instances, upon
the performance of any of the terms or conditions herein or to exercise any
right hereunder shall not be construed as a waiver or relinquishment of the
future performance of any such terms or conditions or the future exercise of
such right but the obligation of the other party with respect to such future
performance shall continue in full force and effect.
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DEFAULT. In the event that either party shall be in breach or default of any of
the terms or conditions of this Agreement and such breach or default shall
continue for a period of thirty (30) days after the giving of written notice by
the non-defaulting party, then subject to the other terms and conditions of this
Agreement, the non-defaulting party, in addition to other rights and remedies it
may have in law or equity, shall have the right to immediately cancel this
Agreement without any charge or liability whatsoever.
DISPUTE RESOLUTION. The parties agree that any claims or disputes will be
submitted to non-binding mediation prior to initiation of any formal legal
process. Costs of mediation will be shared equally.
WARRANTY. The warranty document supplied with the Product at the time of
shipping shall govern the warranty coverage provided under this Agreement.
GENERAL. This Agreement constitutes the entire and final expression of agreement
between the parties pertaining to the subject matter hereof and supersedes all
other communications, oral or written, between the parties. No alterations or
modifications of this Agreement shall be binding upon either Buyer or Seller
unless made in writing and signed by an authorized representative of each. If
any term or condition of this Agreement shall to any extent be held by a court
or other tribunal to be invalid, void or unenforceable, then that term or
condition shall be inoperative and void insofar as it is in conflict with law,
but the remaining rights and obligations of the parties shall be construed and
enforced as if this Agreement did not contain the particular term or condition
held to be invalid, void or unenforceable. Buyer shall make no assignment of
this Agreement or of any right granted herewith without the prior written
consent of SELLER. Any assignment of this Agreement is null and void. The laws
of the State of Illinois of the United States shall govern this Agreement.
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Unless this Agreement is superseded by a new agreement, or otherwise
terminated pursuant to the terms contained herein, this Agreement will continue
in effect beyond its Initial Term until terminated by either party upon thirty
(30) days prior written notice.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized representatives effective as of the 7 day of
September, 1999.
SELLER: BUYER:
MOTOROLA, INC. NEXTEL INTERNATIONAL, INC.
By: /s/ Xxxx Xxxxxxxx By: /s/ Xxxxxx X. Xxxxxx
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Signature Signature
Printed Name: XXXX XXXXXXXX Printed Name: XXXXXX X. XXXXXX
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Title: Vice President & General Manager Title: Vice President and
iDEN International Markets Division Treasurer
iDEN Subscriber Group --------------------
Date: September 7, 1999 Date: September 7, 1999
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