EXHIBIT 10.7
REDACTED
CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
INTERWAVE COMMUNICATIONS B.V.
PURCHASE/RESALE AGREEMENT
This Agreement, effective as of February 27th, 1997, (the
"EFFECTIVE DATE"), is made by and between INTERWAVE Communications B.V., at
Xxxxxxxxx 0, 0000 XX Xxxxxxxxx, Xxx Xxxxxxxxxxx, with affiliated offices at
000 Xxxx Xxxxxx Xxxx, Xxxxx 000, Xxxxxxx Xxxx XX 00000 ("INTERWAVE"), and
ADC Telecommunications, Inc., a Minnesota corporation with its principal
place of business at 0000 X. 00xx Xx., Xxxxxxxxxxx, XX 00000 ("ADC").
RECITALS
Whereas, INTERWAVE develops, manufactures and distributes certain
wireless communications products, including the products set forth on
APPENDIX A hereto (the "Products"), and,
INTERWAVE and ADC desire that ADC act as a non-exclusive reseller of
the Products under the terms and conditions set forth below,
NOW, therefore, INTERWAVE and ADC agree as follows:
SECTION 1 AUTHORIZATION
(a) APPOINTMENT. Subject to the terms of this Agreement,
INTERWAVE appoints ADC, and ADC accepts such appointment, as a non-exclusive
reseller of the Products in and limited to the territory set forth in EXHIBIT
B (the "TERRITORY"). This Agreement applies only to those INTERWAVE products
which are listed in Appendix A as amended from time-to-time upon agreement
between the Parties and as herein provided.
(b) FORMAT. ADC may use or resell the Products as either
stand-alone products, or in combination with other products of ADC's choice
that meet the technical standards of the Products. INTERWAVE makes no
representation that the Products will be appropriate for combination with any
other product(s).
(c) NATURE OF AGREEMENT. To the extent that any Product
contains or consists of software, ADC's appointment only grants to ADC a
license to distribute and use such software Product as provided herein, and
does not transfer any right, title or interest to any such software Product
to ADC or ADC's customers. INTERWAVE will transfer title to Products to ADC
only to the extent that such Products consist of non-software items on the
terms specified herein. To the extent that such Products contain software,
such software (including firmware) will be licensed to ADC and its customers
on a right to use basis with all copyright, priority, or intellectual rights
remaining the property of INTERWAVE. Use of the terms "sell", "license",
"purchase", "license fees" and "price" will be interpreted in accordance with
this Section. INTERWAVE License Agreement is attached hereto as Exhibit F.
SECTION 2 PRICE
2.1 Prices for the INTERWAVE Products to be sold to ADC for resale
are based on market prices to end-users, and the discount schedule shown as
Appendix A to Exhibit "A" to this Agreement, as may be modified from time to
time. Initial ices are shown at Appendix B to Exhibit "A".
2.2 Additional Products will be introduced by INTERWAVE from time to
time during the course of this Agreement and such products will be priced and
offered for resale by ADC through periodic amendments to Exhibit A.
SECTION 3 AGREEMENT COMMENCEMENT DATE
3.1 For purposes of timely execution of several of the terms and
conditions hereof, the "Agreement Commencement Date" shall be that date on
which ADC and INTERWAVE agree that (i) the initial INTERWAVE product has been
independently certified to be GSM compliant, AND (ii) that the initial
INTERWAVE product meets the jointly agreed product specifications and
acceptance criteria. Such specifications and criteria shall be agreed to
prior to May 1, 1997. Such specifications and acceptance criteria shall be
based on INTERWAVE's "Release 1.1" feature set.
SECTION 4 WARRANTY
4.1 Limited Warranty. INTERWAVE MAKES NO WARRANTIES OR
REPRESENTATIONS AS TO PERFORMANCE OF PRODUCTS OR AS TO SERVICE TO ADC OR TO
ANY OTHER PERSON. EXCEPT AS SET FORTH IN INTERWAVE'S LIMITED WARRANTY
ATTACHED HERETO AS EXHIBITS E AND F, INTERWAVE MAY PROVIDE A DIFFERENT
WARRANTY ON NEW PRODUCTS OR SERVICES ADDED TO APPENDIX A.
SECTION 5 OBLIGATIONS OF THE PARTIES
5.1 ADC OBLIGATIONS
5.1.1 COMPLIANCE WITH LAW. ADC will comply with all applicable
international, national, state, regional and local laws and regulations in
execution of this Agreement.
5.1.2 COMPLIANCE WITH U.S. EXPORT LAWS. ADC acknowledges that the
Products, including related documentation and other technical data
(collectively, "TECHNICAL DATA"), are subject to export controls imposed by
the U.S. Export Administration Act of 1979, as amended (the "Act"), and the
regulations promulgated thereunder ("BXA REGULATIONS") and by International
Traffic in Arms Regulations (ITAR). ADC will not export or re-export
(directly or indirectly) the Technical Data without complying with the Act
and the BXA Regulations. ADC certifies that: (a) neither the Technical Data
nor its direct product is intended to be used for any purposes prohibited by
the BXA regulations, including but not limited to nuclear proliferation, and
(b) unless ADC first obtains written permission to do so from the appropriate
U.S. governmental agencies or to any other country to which the U.S. has
prohibited shipment.
5.1.3 ADC shall not reverse assemble, reverse compile or reverse
engineer the Product hardware or software supplied by INTERWAVE in any way.
5.1.4 ADC will market INTERWAVE Product to selected cellular
operators in specified geographies as enumerated on Exhibit B with a
commitment to achieve a minimum of [***] in purchases form INTERWAVE
during the initial twenty-four (24) months following the Agreement
Commencement Date.. ADC will advance [***] on or before the
Agreement Commencement Date, for deposit on initial product purchases, to be
credited at the rate of [***] against purchases until the first [***]
[***] purchases are achieved.
5.1.5 ADC will provide a twelve (12) month rolling forecast to
INTERWAVE for planning purposes. The forecast will identify the quantity and
part number of INTERWAVE marketing modules required by ADC per month will be
updated on a monthly basis.
5.1.6 During the first twelve (12) months after the Agreement
Commencement Date, ADC will budget a minimum of $2.5 million ($3.5 million
run-rate by the end of such period) in internal ADC infrastructure investment
in 1997 in order to develop, market, and distribute the INTERWAVE Product.
5.1.7 ADC will make no warranty, guarantee or representation on
INTERWAVE's behalf. In the event that ADC makes unauthorized representations
or guarantees beyond those contained in Exhibit "E", and "F", ADC shall hold
harmless and indemnify INTERWAVE for any expenses, claims, damages or
liability of any nature whatsoever arising from or related to such
unauthorized representations or guarantees, including without limitation,
attorney's fees.
5.1.8 ADC will have end users of the Products ("End Users") execute
a software license agreement in the form attached hereto as Exhibit F ("the
Software License Agreement"). ADC may not negotiate the terms of the Software
License Agreement with any prospective End User, nor may it agree to any
conflicting, different, or additional terms from those set
*Certain information on this page has been omitted and filed separately with
the SEC. Confidential treatment has been requested with respect to the omitted
portions.
forth in the Software License Agreement. Any such negotiations, if required,
shall be conducted exclusively by INTERWAVE in INTERWAVE's sole and absolute
discretion. In no event shall INTERWAVE be liable to ADC for the failure of a
prospective End User to enter into a Software License Agreement.
5.2 INTERWAVE OBLIGATIONS
5.2.1 INTERWAVE will provide its Products to ADC for resale to the
territory and support such sales, when requested. Such support may include
joint sales calls, training, systems engineering, and export compliance.
Charges for such support will be as mutually agreed, based on rates specified
in Exhibit "C" and "C-1" Service and Support
5.2.2 INTERWAVE, insofar as practical, will provide modifications
and/or enhancements to its Products requested by ADC as mutually agreed by
the Parties. For modifications or enhancements beyond the jointly agreed
specifications (Section 3.1) INTERWAVE will provide engineering resources (up
to a maximum of 24 man-months per calendar year) to perform custom
engineering to accommodate ADC requests for specific product features or
changes. Such engineering resources will be billed to ADC on an as-used basis
at the rate of $100 per hour. INTERWAVE will attempt to provide additional
resources to meet ADC's custom engineering needs on an as-requested basis. In
lieu of paying INTERWAVE for its engineering resources, in certain instances,
ADC may supply its own resources to perform certain custom engineering or
enhancement work.
5.2.3 INTERWAVE will provide ADC with most favored customer status
for discounts, deliveries and support in consideration for the commitments
and obligations described herein. Most favored customer status will apply to
contracts INTERWAVE enters into after the Agreement Commencement Date with
customers of like class, terms and commitments.
5.2.4 INTERWAVE will not compete directly with ADC in the sales of
the INTERWAVE Product as enhanced or modified pursuant to the Agreement to
the specified cellular system operators as described in Exhibit "B" unless:
1. Customer states that it will only do business directly
with the manufacturer, or,
2. Customer does not wish to do business directly with ADC, or
3. Customer is purchasing a private labeled or co-branded
product from an INTERWAVE OEM.
Should a conflict arise, INTERWAVE agrees to cooperate with ADC in
good faith to attempt to resolve the issue in ADC's behalf.
5.2.5 INTERWAVE will provide Products to ADC which comply with
availability dates and specifications as indicated in Exhibit A attached. All
such products will meet applicable FCC and UL requirements (or equivalent
requirements of corresponding international standards bodies).
5.2.6 INTERWAVE will grant ADC the right to assign or sub-license on
a non-exclusive basis to its Affiliates the marketing, distribution, and
other rights set forth herein, provided that ADC will give written notice to
INTERWAVE prior to such assignment or sub-license.
5.2.7 COMPLIANCE WITH LAW. INTERWAVE will comply with all applicable
international, national, state, regional and local laws in the execution of
the Agreement.
5.2.8 INTERWAVE will support warranty and post warranty repairs of
Product sold to ADC for five (5) years after the date last shipment of the
Product.
5.2.9 Following receipt of the $3 million advance deposit referred
to in Section 5.1.4, INTERWAVE will commence development of a PCS 1900
version of the INTERWAVE Products, with a target initial trial date of 10-12
months following commencement.
SECTION 6 INSPECTIONS RECORDS AND REPORTING
6.1 REPORTS. Within thirty (30) days of the end of each calendar
quarter, ADC will provide to INTERWAVE, and INTERWAVE will provide to ADC, a
written point of sale report showing for the quarter ending each Company's
shipments of the Products by purchased dollar volume, location ordered, and
product type.
6.2 NOTIFICATION. ADC will: (i) notify INTERWAVE in writing of any
claim or proceeding involving the Products within ten (10) working days after
ADC learns of such claim or proceeding; (ii) report promptly to INTERWAVE all
claimed or suspected product defects. In the event of a suspected product
defect INTERWAVE will respond within five (5) days of notification with the
status of their analysis of the problem and if applicable a plan for
correction of the verified defect
6.3 RECORDS. ADC and INTERWAVE will maintain, for at least two (2)
years after termination of this Agreement, its records, contracts, and
accounts relating to distribution of the Products, and will permit
examination thereof by authorized representatives with the examined company's
approval, not more frequently than once in any twelve (12) month period. Such
approval will not be unreasonably withheld.
SECTION 7 MARKETING REVIEW
7.1 Representatives of both INTERWAVE and ADC shall meet promptly
after completion of the first three-month period of this Agreement, and at
least quarterly thereafter (while this Agreement remains in force) to review
INTERWAVE and ADC's sales, market strategies, and objectives, Product support
activities, promotion and advertising plans, and competition. Meeting
location shall be agreed upon for the mutual convenience of the parties.
SECTION 8 ADC DETERMINES ITS OWN PRICES AND LICENSE FEES
8.1 Although INTERWAVE may publish suggested wholesale or retail
prices, these are suggestions only and ADC will be entirely free to determine
the actual prices and license fees at which the Products will be sold or
licensed to its customers. INTERWAVE will provide ADC notice of pending
price changes in its list price catalog.
SECTION 9 ORDERS
9.1 All orders from ADC or its subsidiaries are subject to
acceptance and acknowledgment at INTERWAVE's Corporate office. INTERWAVE will
acknowledge ADC's order using INTERWAVE's Sales Order Acknowledgment form or
equivalent. This Agreement supersedes the terms of ADC's Purchase Order and
INTERWAVE Order Acknowledgement. Orders shall specify:
(a) equipment and options description (including item
numbers and part numbers if shown for that item in the price list);
(b) purchase price;
(c) tax status for each "ship to" location including
exemption certificate number if tax exempt;
(d) all ADC orders, including orders for customer trials,
must have firm shipment schedules, with shipment date:
(e) exact "ship to" and "invoice to" place of business.
9.2 All orders shall be sent to:
INTERWAVE Communications International, Ltd.
c/o INTERWAVE Communications, Inc.
000 Xxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxx Xxxx, XX 00000
9.3 Delivery: approximately 60 days ARO providing such order volumes
are approximately as forecasted. INTERWAVE will attempt to satisfy short-term
orders requested by ADC as reasonably practical.
9.4 INTERWAVE may cancel all outstanding orders if ADC is not in
good standing or, at INTERWAVE's option, require C.O.D. payment for such
orders.
SECTION 10 TERMS AND CONDITIONS OF SALE
10.1 Terms of payment will be full payment within 30 days of
invoice. A two percent (2%) discount may be applied for net ten (10) day
payment Delivery will be FOB Seller's factory. In-transit insurance will be
acquired and invoiced to ADC unless specifically declined by ADC when the
order is placed. Shipments will be made to the place or places listed on
ADC's releases. ADC has a period of thirty (30) days following date of
receipt of the Product within which to notify INTERWAVE in writing of any
discrepancies in the shipment.
10.2 ADC shall be invoiced and agrees to pay for all transportation
charges, and all sales, use, excise, and any other taxes, except for those
based on INTERWAVE's income, duties, license fees, assessments and other
charges imposed by reason of or in connection with the purchase, sale,
transportation or delivery of any of the products hereunder received from
INTERWAVE. Delivery to a carrier F.O.B., INTERWAVE's place of business for
shipment to ADC or its nominee shall constitute delivery to ADC within the
meaning of this Agreement. Delivery to ADC's non-US based locations or
customers will be CIF Delivery Point, outside the USA.
10.3 Security Interest. INTERWAVE reserves and retains a security
interest in the Products and the proceeds thereof until payment in full has
been made by ADC.
SECTION 11 CANCELLATIONS AND RESCHEDULES
11.1 Shipments of standard products scheduled under this Agreement
may be canceled or rescheduled subject to the provisions and charges
specified in Exhibit "D".
SECTION 12 ROLE OF PARTIES: INDEPENDENT CONTRACTORS
12.1 The parties hereto expressly understand and agree that
INTERWAVE is in no manner associated or otherwise connected with the actual
performance of this Agreement on the part of ADC. ADC is an independent
contractor in the performance of each and every part of this Agreement, and
is solely and personally liable for all labor and expenses in connection
therewith and for any and all claims, liabilities, damages and debts of any
type whatsoever that may arise on account of ADC's activities, or those of
its employees or agents, or the performance of this Agreement. Either Party
will not have, and will not represent that it has, any power, right or
authority to bind the other Party, or to assume or create any obligation or
responsibility, express or implied, on behalf of the other Party or in the
other Party's name.
12.2 The parties hereto expressly agree that they will not solicit
or otherwise recruit employees of the other company for hire without the
express written consent of the current employer.
12.3 ADC agrees that it will not develop or deliver a product that
is competing with the INTERWAVE products during the term of this Agreement.
If ADC decides to develop or deliver such competing products upon termination
of the Agreement, it shall notify INTERWAVE at least 18 months in advance of
its first delivery.
SECTION 13 TRADEMARKS: TRADE NAMES, LOGOS, DESIGNATIONS AND COPYRIGHTS
13.1 USE DURING AGREEMENT Subject to Section 13.6 below, ADC is
authorized during the term of this Agreement by INTERWAVE to use the
trademarks, trade names, logos and designations INTERWAVE uses for INTERWAVE
Products (the "Marks") in connection with ADC's advertisement of INTERWAVE
Products. ADC further agrees not to use any
INTERWAVE Xxxx in connection with any non-INTERWAVE Product.
13.2 COPYRIGHT AND TRADEMARK NOTICES. ADC will include on each
INTERWAVE Product that it distributes, and on all containers and storage
media therefore, all trademark, copyright and other notices of proprietary
rights included by INTERWAVE on such INTERWAVE Product ADC agrees not to
alter, erase, deface or overprint any such notice on anything provided by
INTERWAVE. ADC also will include the appropriate trademark notices when
referring to any INTERWAVE Product in advertising and promotional materials.
13.3 PROPRIETARY RIGHTS. ADC acknowledges that INTERWAVE owns and
retains all Marks and other proprietary rights in or associated with
INTERWAVE Products and agrees that it will not at any time during or after
this Agreement assert or clam any interest in or do anything that may
adversely affect the validity of any Xxxx or copyright belonging to or
licensed to INTERWAVE (including, without limitation any act which may
infringe or lead to the infringement of any of INTERWAVE' proprietary rights).
13.4 NO CONTINUING RIGHTS. Upon expiration or termination of this
Agreement, ADC will immediately cease use of all INTERWAVE Marks and will not
thereafter use, advertise or display any Xxxx which is similar to or
confusing with any Xxxx associated with any INTERWAVE Product.
13.5 OBLIGATION TO PROTECT. ADC agrees to use reasonable efforts to
protect INTERWAVE's proprietary marks and to cooperate in INTERWAVE' efforts
to protect its proprietary rights.
SECTION 14 PROPRIETARY INFORMATION: NONDISCLOSURE
14.1 The Parties have executed a Non-Disclosure Agreement ("NDA")
which is herein attached as Exhibit J. The term of the NDA is hereby modified
to coincide with the term of this Agreement. The NDA will apply to
information disclosed by the parties in connection this agreement. The
"purposes" for which such information may be used is hereby expanded to
include sales and marketing support.
14.2 Escrow. On the Agreement Commencement Date, and within ten (10)
days after each Product Release by INTERWAVE thereafter, and within ten (10)
days after INTERWAVE reduces to a tangible form any change to a Product or
any improvement thereto after the general release thereof, INTERWAVE will
deliver, at its sole expense, to an escrow agent acceptable to ADC, one copy
of all INTERWAVE manufacturing and test documentation and any other
information reasonably required to make, use, sell, import and market units
of such Products and improvements. INTERWAVE hereby acknowledges that ADC's
business could be severely harmed if such Products were no longer available
to ADC or its customers and, for the purpose of Xxxxx 00, Xxxxxx Xxxxxx Code,
if INTERWAVE hereafter files a petition or if a petition is filed against it
for relief under the U.S. Bankruptcy Code, ADC's continued sale, importation,
use and marketing of the Products are non-executory. If INTERWAVE (i) fails to
cure an event of default under this Agreement; or (ii) files or has filed
against it a voluntary or involuntary petition in bankruptcy; then ADC may
obtain, at no cost to ADC, the materials from the escrow agent regarding such
Products or improvements and INTERWAVE hereby grants to ADC, at no cost to
ADC, an irrevocable, transferable, worldwide, non-exclusive license thereto,
reasonably required to practice INTERWAVE intellectual property and to make,
use, sell, import and market units of such improvements or Products.
SECTION 15 TERM AND TERMINATION
15.1 This Agreement will remain in effect for four (4) years from
the date hereof. This Agreement may be canceled as herein set forth and may
be renewed or extended in writing by mutual agreement.
15.2 Either Party may cancel this Agreement in the event of any
material breach of the terms or conditions of this Agreement, or if there are
instituted by or against the Party, any proceedings in bankruptcy or under
insolvency laws or for reorganization, receivership or dissolution,
assignment for the benefit of creditors. A notice of breach and pending
cancellation must be provided by the breached party providing for 90 days for
the breach condition to be remedied.
15.3 Upon termination or cancellation of this Agreement, ADC, at its
option, may place a one-time end-of-life order for delivery within one
hundred and twenty (120) days of cancellation. INTERWAVE agrees to allow ADC
to purchase
maintenance spares for support of installed customers under mutually
agreeable terms.
15.4 Neither party shall not be liable in any manner whatsoever on
account of termination or cancellation of this Agreement, except that
INTERWAVE shall return to ADC the unused balance of the advance described in
Section 5.1.4. The right of termination and cancellation is absolute and both
INTERWAVE and ADC have considered the possibility of expenditures necessary
in preparing for performance of this Agreement and the possible losses and
damage incident to each in the event of termination or cancellation.
15.5 No Damages For Termination or Expiration. NEITHER INTERWAVE NOR
ADC SHALL BE LIABLE TO THE OTHER FOR DAMAGES OR ANY KIND, INCLUDING
INCIDENTAL OR CONSEQUENTIAL DAMAGES, ON ACCOUNT OF THE TERMINATION OR
EXPIRATION OF THIS AGREEMENT IN ACCORDANCE WITH THIS SECTION. ADC WAIVES ANY
RIGHT IT MAY HAVE TO RECEIVE ANY COMPENSATION OR REPARATIONS ON TERMINATION
OR EXPIRATION OF THIS AGREEMENT UNDER THE LAW OF THE TERRITORY OR OTHERWISE,
OTHER THAN AS EXPRESSLY PROVIDED IN THIS AGREEMENT. [THE PARTIES ACKNOWLEDGE
THAT THIS SECTION HAS BEEN INCLUDED AS A MATERIAL INDUCEMENT FOR BOTH PARTIES
TO ENTER INTO THIS AGREEMENT AND THAT NEITHER PARTY WOULD NOT HAVE ENTERED
INTO THIS AGREEMENT BUT FOR THE LIMITATIONS OF LIABILITY AS SET FORTH HEREIN.]
SECTION 16 PATENT INFRINGEMENT AND INDEMNIFICATION
16.1 INTERWAVE shall defend, or at its option, settle and hold ADC (and its
subsidiaries, customers and end-users) harmless from any claim or proceeding
brought against ADC (and/or its subsidiaries, customers or end-users) to the
extent that it is based on an assertion that a Product furnished to ADC by
INTERWAVE including, without limitation, the use, sale or sub-licensing of
Product, infringes any patent, copyright, trademark, or trade secret of any
other property rights of any third party. Promptly after learning of any such
claim or proceeding, ADC shall notify INTERWAVE in writing thereof and shall
give INTERWAVE authority, information, and assistance to defend, compromise or
settle the claim. ADC hereby grants to INTERWAVE sole control of the defense
and all negotiations for the compromise or settlement of such claim or
proceeding. Should an injunction against the continued sale, use or
sublicensing the Product be issued, INTERWAVE shall, at its option, either
procure for ADC the right to continue sale, use or sublicensing of the
Product or replace or modify the Product so that it becomes non infringing by
functionally equivalent or refund to ADC the advance described in Section
5.1.4. INTERWAVE shall have no liability to the extent the alleged
infringement is the result of INTERWAVE, compliance with ADC custom
specifications or designs or its use in conjunction with other non-INTERWAVE
equipment
16.2 INTERWAVE agrees that it will indemnify and hold harmless ADC
against and from any and all claims, damages, and liability, including
expenses and reasonable attorney's fees, suffered by ADC resulting from
personal injury and/or tangible property damage to third parties, including
without limitation, ADC's employees, caused by the failure of the Products to
conform to specifications or defects in materials and workmanship of the
Products, or the negligent acts of INTERWAVE, arising out of the performance
under this Agreement or INTERWAVE's breach of this Agreement; provided,
however, that this obligation shall not cover any damage to the Products
themselves. ADC agrees that it will indemnify and hold harmless INTERWAVE
against and from any and all claims, damages and liability, including
expenses and reasonable attorney's fees, suffered by INTERWAVE resulting from
personal injury and/or tangible property damage to third parties, including
without limitation INTERWAVE's employees, caused by defects in components
supplied by ADC and incorporated into the Products, or the acts of ADC or
ADC's breach of this Agreement provided that such defects in such components
do not result from defects in the Products. In the event any claim covered by
this indemnity is asserted against either party, the other party shall
provided reasonable cooperation and assistance in the defense thereof and the
other party will grant the indemnifying party control over the defense of any
action.
16.4 INTERWAVE shall sell the Products to ADC without right of return
except as expressly provided in Exhibits E and F hereto.
SECTION 17 PRODUCT DISCONTINUANCE
17.1 INTERWAVE agrees to notify ADC at least six (6) months prior to
the discontinuance of any Products listed in Exhibit A of this Agreement New
Products that are introduced to replace a discontinued Product will be
functionally equivalent to the Product being replaced. INTERWAVE agrees to
provide ADC with the right to make an end of cycle buy for the Product
being replaced, providing that such Product is delivered to ADC within
twelve (12) months of Product discontinuance. INTERWAVE will provide repair
services for such discontinued Products for a period of five (5) years
providing that the component parts required remain commercially available.
17.2 In the event INTERWAVE decides to discontinue the manufacture
of the Products, INTERWAVE will provide ADC with the notification described
in the preceding subsection and will negotiate in good faith with ADC for a
mutually agreeable manufacturing license agreement which may include royalty
payments, a subcontract manufacturing agreement or an outright purchase of
the Product. The sum of material plus labor and overhead plus license fee
shall not exceed the current purchase price of finished product from
INTERWAVE as a result of good faith discussions. Additionally, the License
will be non-exclusive and INTERWAVE would retain ownership to all
intellectual property rights associated with its manufacturing process.
SECTION 18 ASSIGNMENTS
18.1 This Agreement may not be assigned or transferred by either
Party without the other Party's written consent, executed by an authorized
official of both Parties, however, ADC may, without being obligated to obtain
INTERWAVE's consent prior thereto, assign this Agreement to any entity which
is at least thirty percent (30%) owned by ADC.
SECTION 19 WAIVER
19.1 A waiver by the parties of any term or condition of this
Agreement or breach whether expressed or implied, in any one instance, shall
not be construed as consent to be a waiver of any other different or
subsequent breach thereof.
SECTION 20 PUBLICITY RELATED TO AGREEMENT
20.1 ADC shall obtain the prior written approval of INTERWAVE as to
the issue, content, and timing or news releases, articles, brochures,
advertisements, prepared speeches, or other informational releases
("Releases") relating to the Agreement to be issued by ADC or any of its
employees, agents, subsidiaries or affiliates.
20.2 INTERWAVE shall obtain the prior written approval of ADC as to
the issue, content, and timing or news releases, articles, brochures,
advertisements, prepared speeches, or other informational releases
("Releases") relating to the Agreement to be issued by INTERWAVE or any of
its employees, agents, subsidiaries or affiliates.
SECTION 21 NOTICE
21.1 All notices or communications of any kind made or required to
be given pursuant to this Agreement shall be in writing and delivered by
personal service to an officer of the other party or sent by telegraph or by
first class mail, postage prepaid. Notice shall be considered given when
delivered in person or when deposited in the United States mail. Notices
shall be addressed as follows unless either party gives notice to the other
party of a change of address:
To INTERWAVE: To ADC:
INTERWAVE Communications, B.V.
c/o INTERWAVE Communications, Inc. ADC Telecommunications, Inc.
000 Xxxx Xxxxxx Xxxx, Xxxxx 000 0000 Xxxx 00xx Xxxxxx
Xxxxxxx Xxxx, XX 00000 Xxxxxxxxxxx, XX 00000
ATTN: Contract Administration ATTN: Contracts Manager, MS76 Phone: (415) 482-
2100 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
cc: General Counsel
Fax: (000) 000-0000
SECTION 22 APPLICABLE LAW
22.1 This Agreement shall be construed in accordance with the laws of
the State of California.
SECTION 23 EXCUSABLE DELAYS
23.1 While INTERWAVE shall use its best efforts to fill orders
placed by ADC hereunder with reasonable promptness, it shall not be liable
for delays or non-delivery or non-delivery of any such orders for any reason
beyond its control. However, ADC with most favored customer status, will be
given highest priority. See Exhibit D hereto for specific charges relating to
cancellation or rescheduling of orders.
SECTION 24 DISPUTES
24.1 Any dispute, controversy, claim or question arising out of or
relating to this Agreement, or breach thereof which cannot be settled,
agreement of the parties may be settled by appropriate legal proceedings,
including arbitration, and judgment upon the award rendered may be entered by
any court having jurisdiction thereof.
SECTION 25 COMPLETE AGREEMENT
25.1 This Agreement together with Exhibits "A" (including Appendix A
and B thereof), "B", "C", "D", "E", "F", "G", "H", "I", and "J" and any
Addendum thereto, supersedes and cancels any previous understanding or
Agreements between the parties relating to the subject material hereof. It
expresses the complete and final understanding with respect to the subject
matter hereof and may not be changed in any way except by an instrument in
writing by both parties. No representations or statements of any kind made by
any representative of INTERWAVE nor any notice or instruction from ADC
received subsequent to the commencement date of this Agreement including
supplementary information contained in a confirming purchase order which
are not stated herein shall be binding on the Parties.
SECTION 26 SEVERABILITY
26.1 If any term, provision, covenant or condition of this Agreement
is held by a court of competent jurisdiction to be invalid or unenforceable,
the remainder of the provision shall remain in full force and effect and
shall not be affected, repaired or invalidated.
XXXXXXX 00 XXXXX XXXXXXX
27.1 Nonperformance of either party shall be excused to the extent
that performance is rendered impossible by strike, fire, flood, governmental
acts or orders or restrictions, failure of suppliers, or any other reason
where failure to perform is beyond the reasonable control of and is not
caused by the negligence of the nonperforming party.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement and
initialed Exhibits "A" (including Appendix A thereto), "B", "C", "D", "E",
"F", "G", "H", "I", and "J", as of the day and year first above written and
said date shall be deemed the effective date of this Agreement.
ADC TELECOMMUNICATIONS, INC.:
By: /s/ [ILLEGIBLE]
Title: Vice President, Business Development
INTERWAVE COMMUNICATIONS B.V.
By: /s/ [ILLEGIBLE]
Title: Sr. Vice President, CFO
EXHIBIT A
PRODUCTS AND PRICING
LIST PRICES
------------------------------------------------------------------------------------------------------------
WAVEXPRESS/BTS 1.0 (INCLUDES 1 ABIS INTERFACE)
(1) TRX [***] or
(1) 1800 TRX [***]
Additional 900 TRX [***] or
Additional 1800 TRX [***]
Additional Power Supply [***]
Additional Software Feature Releases: [***] of
product cost depending on feature content
------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------
WAVEXPRESS/BSC 1.0 (STAR CONFIGURATION ONLY)
(2) A, (2) Abis Interface [***]
Additional A-int Trunk module [***]
Additional Abis interface trunk card
- with 32 channel TRAU capacity [***]
- with 64 channel TRAU capacity [***]
Additional Power Supply [***]
BTS Management Software [***] TRX
Additional Software Feature Release: [***] of
product cost depending on feature content
------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
WAVEXPRESS OUTDOOR ENCLOSURE
Environmental Cabinet [***]
Celware Filter Kit, Outdoor [***]
Heat Exchanger, Outdoor [***]
UPS, Outdoor [***]
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
WAVEXCHANGE SWITCH 1.0 [INCLUDES (1) A & (1) A/ABIS INTERFACE)
(1) 2-port E1/switch [***]
module
Additional CPU module [***]
Additional 2-port E1/switch module [***]
Integrated BSC [***]
-------------------------------------------------------------------------------------------------------------
*Certain information on this page has been omitted and filed separately with
the SEC. Confidential treatment has been requested with respect to the omitted
portions.
-------------------------------------------------------------------------------------------------------------
Subscriber management [***]
HLR/VLR
Up to 500 subscribers [***]
501 - 1,000 subscribers [***]
AUC [***]
Call data records
Up to 500 subscribers [***]
501 - 1,000 subscribers [***]
Radio Channel Control [***] per Tr Channel
Integrated TRAU [***] per DSP module
Echo [***] per DSP module
Cancellation
Additional Power Supply [***]
Additional Software Feature Releases: [***] of
Product cost depending on feature content
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
WAVEVIEW OMC-R (UNIX/MOTIF)
OMC UNIX platform server workstation [***]
(SPARC 20 WS, E1 interface, & Oracle DB) [***]
OMC UNIX SPARC 4 client workstation [***]
WAVEView OMC-R Server Software [***]
WAVEView OMC-R Client Software [***] per copy
X-terminal client license per copy [***] per copy
TRX Management [***] per TRX
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
WAVEVIEW OMC-S
OMC UNIX platform workstation [***]
WAVEView OMC-S Server Software [***]
WAVEView OMC-S Client Software [***]
Radio channel management [***] per voice channel
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
CRAFT INTERFACE PC
Craft Hardware and Software [***]
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
MICROXPRESS/BTS
Base System (900 MHz) [***] or
Base System (1800/1900 MHz) [***]
Optional Wall Mount Kit [***]
Optional Pole Mount Kit [***]
Addit'l Software Feature Releases:
12% - 15% of product cost
-------------------------------------------------------------------------------------------------------------
*Certain information on this page has been omitted and filed separately with
the SEC. Confidential treatment has been requested with respect to the omitted
portions.
depending on feature content
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
DOCUMENTATION
WAVEXpress/BTS Installation Guide [***]
WAVEXpress/BSC Installation Guide [***]
WAVEXpress/BS+ Installation Guide [***]
WAVEView UNIX Installation Guide [***]
WAVEView UNIX Operator's Manual [***]
Craft Interface Operators Manual
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
INSTALLATION (ONE-TIME EXPENDITURE)
of hardware price
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
HARDWARE SUPPORT (YEARLY)
5x8x8 [***] of total hardware cost
5x8x4 [***] of total hardware cost
7x24x4 [***] of total hardware cost
7x2472 [***] of total hardware cost
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
SOFTWARE SUPPORT (YEARLY)
[***] of total hardware cost
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
TRAINING (OFFERED REGIONALLY)
Custom quote
-------------------------------------------------------------------------------------------------------------
See Exhibit C-1 for Service and Support Pricing
*Certain information on this page has been omitted and filed separately with
the SEC. Confidential treatment has been requested with respect to the omitted
portions.
APPENDIX A TO EXHIBIT A
DISCOUNT SCHEDULE BASED ON VOLUME ($ MILLIONS)
ANNUAL PURCHASE COMMITMENT: $0-10 $10-20 20-40 $40+
----- ------ ----- ----
Discount from "Market" Price
Years after Agreement Commencement Date:
----------------------------------------
First [***] [***] [***] [***]
Second [***] [***] [***] [***]
Third and beyond [***] [***] [***] [***]
"Market Price" means: the end user price recorded by IWC and ADC for their
respective end-user (operator) sales accounts, by geographic region (Europe,
Asia-Pacific and North America.).
Average sales over the preceding three months will be used to determine the
"market" price.
Pricing will be reviewed and modified as necessary on a quarterly basis.. In
cases where special circumstances dictate a greater than normal discount from
list for an end-user (such as when an operator elects to make an equity
investment in conjunction with his product purchase arrangement) those
transactions will be excluded from the calculation of "average"; likewise if
ADC has a special case requiring an usual discount, then INTERWAVE will
cooperate and share the pain in terms of margin impact.
Depending on market price erosion over time, INTERWAVE and ADC reserves the
right to re-negotiate the ADC discount.
* Certain information on this page has been omitted and filed separately
with the SEC. Confidential treatment has been requested with respect to
the omitted portions.
APPENDIX B TO EXHIBIT "A"
INITIAL MARKET PRICES
-------------------------------------------------------------------------------------------------
WAVEXPRESS/BTS 1.0 (INCLUDES 1 ABIS INTERFACE)
(1) TRX [***] or
(1) 1800 TRX [***]
Additional 900 TRX [***] or
Additional 1800 TRX [***]
Additional Power Supply [***]
Additional Software Feature Releases: [***] of
product cost depending on feature content
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
WAVEXPRESS/BSC 1.0 (STAR CONFIGURATION ONLY)
(1) A, (1) Abis Interface [***]
Additional A-int Trunk module [***]
Additional Abis interface trunk card
- with 32 channel TRAU capacity [***]
- with 64 channel TRAU capacity [***]
Additional Power Supply [***]
BTS Management Software 50 TRX
Additional Software Feature Releases: of
product cost depending on feature content
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
WAVEXPRESS OUTDOOR ENCLOSURE
Environmental Cabinet [***]
Celwave Filter Kit, Outdoor [***]
Heat Exchanger, Outdoor [***]
UPS, Outdoor [***]
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
WAVEVIEW OMC-R (UNIX/MOTIF)
WAVEVIEW OMC-R Server Software [***]
WAVEVIEW OMC-R Client Software [***] per copy
X-terminal client license per copy [***] per copy
TRX Management [***] per TRX
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
CRAFT INTERFACE PC
Craft Hardware and Software [***]
-------------------------------------------------------------------------------------------------
* Certain information on this page has been omitted and filed separately
with the SEC. Confidential treatment has been requested with respect to
the omitted portions.
-------------------------------------------------------------------------------------------------
MICROXPRESS/BTS
Base System (900 MHz) [*****] or
Base System (1800/1900 MHz) [*****]
Optional Wall Mount Kit [*****]
Optional Pole Mount Kit [*****]
Addit'l Software Feature Releases:
12% - 15% of product cost
depending on feature content
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
DOCUMENTATION
WAVEXpress/BTS Installation Guide [***]
WAVEXpress/BSC Installation Guide [***]
WAVEXpress/BS+ Installation Guide [***]
WAVEView UNIX Installation Guide [***]
WAVEView UNIX Operator's Manual [***]
Craft Interface Operators Manual
-------------------------------------------------------------------------------------------------
Note: Spares are typically quoted at ** of the system configuration
Support and Training are separately quoted depending on the operator
requirements
* Certain information on this page has been omitted and filed separately
with the SEC. Confidential treatment has been requested with respect to
the omitted portions.
EXHIBIT B
TERRITORY AND ACCOUNTS
The following accounts shall be specifically targeted by ADC, and INTERWAVE will
not compete with ADC at such accounts so long as a minimum of $4 million is
purchased during the first two years of this Agreement, and a minimum of $2
million per year are purchased thereafter by each account:
Geography Account
------------ -------
Europe 3 AirTouch affiliates (to be named by ADC and agreed
by INTERWAVE by 5/1/97 - Such agreement not to be unreasonably
withheld)
Telecom Italia Mobile (XXX)
Australia OPTUS
Vodaphone
India Xxxx Xxxxxx (Calcutta)
1 additional operator to be named
China Beijing Unicom
Malaysia Binariang
US & Canada 3 Operators (to be
named by ADC and agreed
by INTERWAVE by 5/1/97 - such agreement not to be
unreasonably withheld)
ADC will have the non-exclusive rights to market the Product worldwide
subject to the terms and conditions set forth herein.
ADC agrees, however, that the following named accounts are the purview
of INTERWAVE or prior distribution relationships, and shall not be available for
ADC distribution unless expressly agreed in writing by INTERWAVE:
UK Orange
Hong Kong Xxxxxxxxx Telecom
Thailand TAC/UCOM
Philippines Globe Telecom
Singapore Singapore Telecom (and affiliates)
Australia Telstra
China Ministry of Post and Telecommunications (MPT)
and its affiliates;
France France Telecom
Buoygues
South Africa MTN (DiData)
EXHIBIT C
INTERWAVE COMMUNICATIONS INTERNATIONAL, LTD.
TRAINING AND CONSULTING PRICE SCHEDULE
TRAINING
INTERWAVE offers installation and maintenance training at its
headquarters in Redwood City, California and at its location in Bracknell,
England, and in Wanchai, Hong Kong.
TRAINING CHARGES AT INTERWAVE SITE:
$400 per student per day during scheduled classes Includes course
material
Students pay all travel and living expenses Class size is
limited to eight (8) students, maximum
INITIAL TRAINING
INTERWAVE will provide 60 person days (minimum 6 persons per class),
free of charge at INTERWAVE's facilities to ADC, for purposes of
training ADC employees. If training is held at ADC facilities, trainer
travel expenses and equipment transportation costs as incurred will
be invoiced.
COURSE MATERIAL
ADC may reproduce INTERWAVE's documentation to develop ADC's own training
program for ADC employees and ADC's customers. ADC will accept full
responsibility for any errors or omission in reproducing such information.
Documentation will be provided electronically to participating students.
CONSULTING SERVICES
- ON-SITE CONSULTING
INTERWAVE personnel available at $1,500 per day, plus reasonable travel
and living expenses.
- SYSTEMS ENGINEERING/SALES SUPPORT
INTERWAVE personnel available at $1,500 per day, plus reasonable travel
and living expenses.
EXHIBIT C-1*
SERVICE AND SUPPORT PRICING
A. INSTALLATION & COMMISSIONING
------------------------------- RECOMMENDED PRICE PER UNIT
PRODUCT TYPE LIST PRICE PRICE % OF LIST PRICE
WAVExpress BTS 1 Radio [***] [***] [***]
WAVExpress BTS 2 Radios
Micro BTS [***] [***] [***]
BSC [***] [***] [***]
OMC-R [***] [***] [***]
B. TELEPHONE SUPPORT AND SOFTWARE UPDATES LIST PRICE PRICE PER % OF LIST
-------------------------------------------------------------------------------------------
WAVExpress BTS 1 Radio [***] [***] [***]
WAVExpress BTS 2 Radios
Micro BTS [***] [***] [***]
BSC [***] [***] [***]
OMC-R [***] [***] [***]
C. FULL MAINTENANCE SUPPORT* LIST PRICE 9-5 COVERAGE % LIST 16 7/24/02
HR.
WAVExpress BTS 1 Radio [***] [***] [***] [***] [***] [***]
WAVExpress BTS 2 Radios [***] [***] [***] [***] [***] [***]
Micro BTS [***] [***] [***] [***] [***] [***]
BSC [***] [***] [***] [***] [***] [***]
OMC-R* [***] [***] [***] [***] [***] [***]
* Spares Not included Add 3%
D. EMERGENCY CALL OUT** STANDARD WEEKNIGHTS NIGHTS/WEEKENDS SUNDAYS/HOLIDAYS
Junior Engr. [***] [***] [***] [***]
Engineer [***] [***] [***] [***]
Sr. Engineer/Specialist [***] [***] [***] [***]
Project Manager [***] [***] [***] [***]
**Based Upon Local Labor Rates - All Prices in U.S. Dollars Per Hour, Minimum 4 Hour Call Out
E. REPAIR
PRICING
Model # Description List Price Repair Price
M340014 X-0, Xxxx Xxxx, 0 Xxxx, 000 Xxx [***] [***]
M340033 X-0, Xxxx Xxxx, 0 Xxxx, 00 Xxx [***] [***]
M640025 Fan, 12V Pwr Sply
M640012 Fan, 12V. Cards [***] [***]
M340012 IWP [***] [***]
M340039 IWP, 250 meg HD [***] [***]
M4022 MicroXpress DCS 1800 [***] [***]
M40200 MicroXpress GSM 900 [***] [***]
* Certain information on this page has been omitted and filed separately
with the SEC. Confidential treatement has been requested with respect
to the omitted portions.
M640034 Power Supply, 350W, Hi24, 115V AC [***] [***]
M640027 Power Supply, 50A, 115V AC [***] [***]
M640015 Power Supply, 250W, 115V AC [***] [***]
M640014 Power Supply, 250W, 230V AC [***] [***]
M640035 Power Supply, 350W, Hi24, 230V AC [***] [***]
M640026 Power Supply, 350W, -48V DC [***] [***]
M640032 Power Supply, 350W, 1800MHz, 115/230V [***] [***]
AC
M640033 Power Supply, 350W, Hi24, 48V DC [***] [***]
M640028 Power Supply, 50A, 230V AC [***] [***]
M340015 XX Xxxxxxxxxxxx 0000 XXx Xx Band [***] [***]
M340065 RF Distribution 1800 MHz Lo Band [***] [***]
M340010 RF Distribution 900 MHz [***] [***]
M340046 T-1, DB15 [***] [***]
M340018 Trau module [***] [***]
M340074 TRX 1800 MHz Hi Band [***] [***]
M340075 TRX 1800 MHz Lo Band
M340030 TRX 900 MHz
M640047 WAVEXpress Chassis
* The parties agree that these prices will be adjusted thru time as list and
market prices for the product change.
* Certain information on this page has been omitted and filed separately
with the SEC. Confidential treatement has been requested with respect
to the omitted portions.
EXHIBIT D
CANCELLATIONS AND RESCHEDULES
1. Cancellation policy and restocking fee applies to order cancellation
other than orders specifically for those circumstances as described in
Section 5.2.4.
a) l-less than 15 days prior to shipment 20% of item list price
b) 15-30 days prior to shipment 15% "
c) 30-45 days prior to shipment 10% "
d) Over 45 days prior to shipment 5% "
Above restocking charges apply to standard product. Cancellations with
respect to non-standard (i.e. customized) products will bear a
settlement charge equal to fifty percent (50%) of the agreed purchase
price and/or license fee for the customized portion of the canceled
products.
2. Reschedule Delivery of Products:
(Note: Delivery of any Product may only be rescheduled once)
Number of days prior to delivery Maximum % of purchase order Maximum number of days
that notice of rescheduling is that can be rescheduled Customer can delay delivery
received by INTERWAVE
-------------------------------- --------------------------- ---------------------------
120 or more no restriction no restriction
91 - 120 100% up to 120 days
61 - 90 50% up to 90 days
31 - 60 50% up to 60 days
0 - 30 0% none
EXHIBIT E
HARDWARE WARRANTY
1. WARRANTY PERIOD. Subject to the terms of this Agreement, Seller
warrants to Distributor that for a period of one (1) year from the date of
Distributor's shipment of the Products to its' customer, each Product (other
than the Software, to which the separate warranty in Exhibit C shall apply) will
conform in all material respects to Sellers written specifications for the
Product and will be free from defects in materials and workmanship, provided
that installation is commenced within forty-five (45) days after the date of
shipment by Seller. The warmth, period shall be reduced by one day for each day
complete installation is delayed beyond sixty (60)days after the date of
shipment. Seller's sole obligation under this warranty is limited to repairing
or replacing, at Seller's option, at a Seller-designated location, any
non-Software Products or parts thereof that Seller determines do not conform to
this warranty.
2. OBLIGATION TO NOTIFY. Distributor shall promptly notify Seller in
writing of any alleged non-conformities or defects in the Products and
specifically describe the problem. Seller shall have no obligations under this
warranty with respect to any non-conformity or defect unless Seller receives
notice and a description of such non-conformity or defect no later than five (5)
business days after the expiration of the warranty period. Upon receipt of such
notice, Seller shall (i) instruct Distributor as to the element or elements of
the Products that Distributor shall return to Seller and (ii) designate Seller's
location to which such element(s) shall be shipped.
3. SHIPMENT UNDER WARRANTY. Warranty service and repair and parts
replacement will be performed at a Seller location designated by Seller. In
performing warranty service, Seller will furnish parts on an exchange basis and
the replaced parts will become the property of Seller Charges for shipping
Products or Product elements to Seller are the responsibility of Distributor and
shall be prepaid by Distributor. If Products or Product elements are determined
by Seller to be non-conforming or defective, Seller shall be responsible for the
cost of shipping both the non-conforming or defective Product or Product element
to Seller and shipping the repairing or replaced Product or Product element to
Distributor. If such Products or Product elements are determined by Seller not
to be non-conforming or defective, Distributor shall bear all costs of such
return.
4. PACKAGING. Distributor agrees to request and use the shipping
containers designated and provided by Seller and to ship the Products and
Products elements in the manner prescribed by Seller. Except for loss or damage
caused by Seller's gross negligence, Distributor relieves Seller of
responsibility for and shall indemnify Seller against liability howsoever
arising from all risks of loss or damage to the Products and Product elements
during the period such Products and Product elements are in transit to and from
a Seller location or are in the possession of Seller at such location.
5. WARRANTY EXCLUSION. The warranties provided by Seller under this
Agreement do not include:
(a) performance of preventive maintenance;
(b) repair of damage or delays in service caused by: failure to provide
an installation environment, ,use of the Products for other than the purposes
for which they were designed, accident, neglect, disaster, damage incurred in
transit, alterations to the Products or other work on the Products not permitted
or not performed as specified by Seller or other damage not arising under normal
operating conditions; or
THE FOREGOING WARRANTIES APPLY ONLY THE DISTRIBUTOR AND ITS CUSTOMERS AND ARE
IN LIEU OF ALL OTHER WARRANTIES, CONDITIONS OR OTHER TERMS, EXPRESS, IMPLIED
OR STATUTORY ALL OF WHICH ARE EXPRESSLY EXCLUDED, INCLUDING WITHOUT
LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE. THE REMEDIES SPECIFIED IN THIS SECTION ARE DISTRIBUTOR'S SOLE AND
EXCLUSIVE REMEDIES FOR BREACH OF THE WARRANTIES SET OUT IN THIS SECTION.
EXHIBIT F
SOFTWARE LICENSE AGREEMENT
(END USER)
This Software License Agreement ("Agreement") is made and entered into as of
the__ day of, ___________, (Execution Date), between the parties, INTERWAVE
Communications BV. a company incorporated under the laws of the Netherlands,
(herein referred to as "LICENSOR") and _______________, a corporation of
_______________, with offices at __________________________ hereinafter
"LICENSEE ").
RECITALS
WHEREAS, LICENSOR is a manufacturer and supplier of telecommunications
equipment and related Software Products and has developed certain software,
know-how and secret and confidential information relating thereto;
WHEREAS, LICENSEE desires to use LICENSOR's Software Products for use
with equipment approved by LICENSOR,
NOW, THEREFORE, in consideration of the covenants, terms and conditions
hereinafter set forth, the parties agree as follows:
1. DEFINITIONS
1.1 "Software Product" means the computer programs identified
by Software Product name in Schedule A, together with all related documentation,
updates and releases. LICENSOR may amend Schedule A from time to time by issuing
new price lists, to delete discontinued Software Products, to add new Software
Products, or to otherwise change Schedule A.
1.2 "Single Machine Use" means use of a Software Product only
on a single Designated Machine.
1.3 "Update" means any corrections or modifications, issued by
LICENSOR for a Software Product and identified by LICENSOR as an "Update" in
accordance with LICENSOR's procedure for software identification.
1.4 "Release" means any new releases or new versions issued by
LICENSOR for a Software Product and identified by LICENSOR as a "Release" in
accordance with LICENSOR's procedure for software identification.
1.5 "Designated Machine" means a machine marketed directly by
LICENSOR or indirectly by others with the approval of LICENSOR and on which the
Software Products are identified for use.
1.7 "Designated Site" means the building location housing a
Designated Machine connected in a LICENSEE's Network.
2. SOFTWARE LICENSE
LICENSOR hereby grants to LICENSEE a personal non-exclusive,
non-transferable (except as provided in Section 3.2) license for the Single
Machine Use of Software Products for which the single machine use fee has been
paid for LICENSEE's own internal business purposes.
3. SOFTWARE RESTRICTIONS AND LIMITATIONS
3.1 This Agreement, the Software Products and any licenses and
rights granted hereunder may not be sold, leased, assigned, sublicensed or
otherwise transferred, in whole or in part, by LICENSEE except as provided in
Section 3.2 below.
3.2 LICENSEE may relocate any Designated Machine, provided
LICENSEE promptly informs LICENSOR in writing of the subsequent location. If
such location is outside the country in for which the original license was
granted, the LICENSEE must obtain approval from the LICENSOR and the relevant
U.S. Government Export Agency. regarding such relocation.
3.3 LICENSEE may make and maintain a single backup copy of a
Software Product during the term of this Agreement, provided that LICENSEE shall
reproduce all copyright, trademark, confidential or other proprietary notices
appearing thereon or contained therein.
3.4 LICENSEE shall not disassemble, de-compile or reverse engineer
any Software Product in any form or manner and, except as provided in Section
3.3, LICENSEE shall not duplicate any Software Product. Interface information
necessary to achieve interoperability with the Software Product is available
upon written request to LICENSOR and payment of any then current administration
fee.
3.5 LICENSEE shall hold the Software Products in confidence and
shall not disclose the Software Products to any person other than employees of
LICENSEE for purposes specifically related to LICENSEE's (as applicable)
licensed use of the Software Products. Licensee shall take appropriate steps by
instruction, agreement, or otherwise to prevent unauthorized disclosure by its
officers, agents or employees.
4. SOFTWARE FEES AND PAYMENT
4.1 Software Products delivered to LICENSEE by LICENSOR become
licensed under this Agreement when the applicable license fee has been paid.
LICENSOR reserves the right to change its fees for Software Products.
4.2 Payments under this agreement are due within thirty(30) days
after the date of the relevant invoice. LICENSOR may charge interest on any
invoices not paid within this time at the rate of 1 1/2% per month until payment
in full has been made or the highest rate permitted by law, whichever is the
lower.
5. SOFTWARE WARRANTY
5.1 LICENSOR warrants that Software Products licensed under this
Agreement will perform in all material respects in accordance with the
then-current published documentation for a period of twelve(12) months from the
date of shipment, hereinafter referred to as "Warranty Period."
5.2 During the Warranty Period, LICENSOR shall take all reasonable
steps without charge to correct errors or defects in any Software Product and
any corrections for errors or defects may, at LICENSOR's election, be provided
to LICENSEE directly and/or incorporated in subsequent Updates from LICENSOR.
This claim, 5.2 shall constitute LICENSOR's sole obligation and LICENSEE'S sole
remedy for breach of the warranty in Clause 5.1.
5.3 Any modifications or alteration of a Software Product without
the approval of LICENSOR shall void LICENSOR's obligations under this Section 5
unless and until the Software Product is returned to its unaltered state.
5.4 LICENSOR does not warrant that the Software Products will
operate in accordance with the published documentation in the combinations which
may be selected for use by LICENSEE, or will meet LICENSEE's requirements.
LICENSOR does not warrant that the operation of the Software Products will be
uninterrupted or error free, or that all Software Product errors will be
corrected.
5.6 THE WARRANTIES SET FORTH IN THIS SECTION 5 CONSTITUTE THE ONLY
WARRANTIES WITH RESPECT TO ANY SOFTWARE PRODUCT. THEY ARE IN LIEU OF ALL OTHER
WARRANTIES, CONDITIONS OR OTHER TERMS, WRITTEN OR ORAL, STATUTORY, EXPRESS OR
IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTY OF MERCHANTABILITY AND THE
WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE EXPRESSLY
EXCLUDED.
6. INTELLECTUAL PROPERTY RIGHTS AND AUDIT
6.1 The Software Products are protected by copyright, trade secret
and other rights. Except for the limited rights set out in clause 2, LICENSEE is
receiving no title or other interest in the Software Products all of which shall
remain vested in LICENSOR.
6.2 Subject to ten days prior written notice LICENSEE shall permit
the LICENSOR, or its authorized representatives access to any machine where the
software is stored, for the purpose of enabling LICENSOR to audit the LICENSEE's
use of the Software Product. LICENSEE shall, at not cost to LICENSOR provide
forthwith such assistance as LICENSOR may reasonably require to enable LICENSOR
or its authorized representatives to audit LICENSEE's use of the Software.
6.3 LICENSOR or is authorized representative shall not in any
circumstance be liable for any disruption to the business of the LICENSEE or for
any losses or costs, caused by or arising out of the audit.
7. INFRINGEMENT
7.1 LICENSOR will defend, at its own expense, any suit or
proceeding against LICENSEE based on a claim the Software constitutes an
infringement of any copyright or other intellectual property right subsisting in
(fill in jurisdiction in which equipment shall be used)provided that:
7.1.1 LICENSOR shall be notified promptly in writing by LICENSEE
of any notice or threat of such claim;
7.1.2 LICENSOR shall have the sole control of the defense of any
action of such claim and all negotiations for settlement or
compromise; and
7.1.3. LICENSOR shall allow it's name to be used in proceedings if
necessary and provide all reasonable assistance in defending any
action.
7.2 LICENSOR will pay all damages and costs (including reasonable
legal costs) awarded against LICENSEE as a result of any action
for infringement.
7.3 REMEDIES FOR INFRINGEMENT. If in any such suit or proceeding
LICENSEE's continued use of any item of Software Products is enjoined, or if by
reason of any claim or potential claim of infringement LICENSOR deems it
advisable to do so, LICENSOR may, at its option and expense, (i) procure for
LICENSEE the right to continue using such Software Products, (ii) modify or
replace such Software Products with non-infringing Software Products, provided
that such modification does not materially adversely affect performance or (iii)
remove such Software Products and grant LICENSEE a credit based upon the
remaining beneficial use of the Software Product and its depreciated value. If
infringement is alleged prior to completion of deliveries of the Software
Products, LICENSOR may decline to make further shipments without being in
breach of this Agreement.
7.4 NON-STANDARD SOFTWARE PRODUCTS OR USES. LICENSOR shall not be
obligated to defend any suit or proceeding, or otherwise take any action, or be
liable for any costs or damages, if the infringement arises out of (i)
compliance with LICENSEE's instructions or specifications or any marking or
branding applied at the request of LICENSEE, (ii) modification of Software
Products other than by LICENSOR or not in accordance with LICENSOR's written
instructions, (iii)use of Software Products for other than the purposes for
which they were designed or (iv) use of other than LICENSOR's most recent
release of the Software Product.
8 LIMITATIONS OF LIABILITY
LICENSOR SHALL IN NO EVENT HAVE OBLIGATIONS OR LIABILITIES TO LICENSEE OR ANY
OTHER PERSON IN CONTRACT TORT OR OTHERWISE, FOR DAMAGED TANGIBLE PROPERTY,
CONSEQUENTIAL LOSS OR DAMAGE, HOWSOEVER ARISING. THIS SHALL INCLUDE WITHOUT
LIMITATION, LOSS OF PROFITS, LOSS OF USE, LOSS OF DATA, LOSS OF OPPORTUNITY, OR
INCIDENTAL, INDIRECT, SPECIAL DAMAGES, EVEN IF LICENSOR KNEW,
SHOULD HAVE KNOWN OR HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. THIS EXCLUSION
OF LIABILITY SHALL APPLY TO ANY LOSS OR DAMAGE ARISING OUT OF OR IN CONNECTION
WITH THIS AGREEMENT, ANY OBLIGATION HEREUNDER, OR THE SALE, DELIVERY, USE,
REPAIR OR PERFORMANCE OF THE SOFTWARE OR ANY FAILURE OR DELAY IN CONNECTION WITH
ANY OF THE FOREGOING.
LICENSOR'S LIABILITY UNDER OR FOR BREACH OF THIS AGREEMENT SHALL IN NO EVENT
EXCEED THE PURCHASE/LICENSE PRICE FOR THE SOFTWARE PRODUCTS LICENSED HEREUNDER.
IN NO EVENT SHALL LICENSOR BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE
GOODS. NOTHING IN THIS AGREEMENT SHALL LIMIT LICENSOR'S LIABILITY FOR DEATH OR
PERSONAL INJURY RESULTING FROM LICENSOR'S NEGLIGENCE.
9 TERM AND TERMINATION
9.1 This agreement shall commence on (the effective date) and
shall continue indefinitely until terminated by either party, in accordance with
this clause 9.
9.2 LICENSOR may terminate this agreement forthwith at any time by
written notice if the LICENSEE: commits an irremediable breach of this
Agreement, persistently repeat a remediable breach or commits any remediable
breach and fails to remedy it within thirty (30) days after receipt of notice of
the breach: or becomes insolvent, bankrupt, or has a receiver, manager,
administrative receiver or similar officer appointed over the whole or any part
of its assets; or has a change of ownership, management or control. LICENSOR
shall not be liable to LICENSEE for any loss or damage however caused, resulting
from termination of this Agreement. In the event of termination for breach, all
rights and license granted hereunder shall forthwith terminate and the LICENSEE
shall immediately cease using and destroy all copies of the LICENSOR's Software.
9.3 LICENSEE shall not be relieved of its obligation of
confidentiality upon termination of this Agreement.
10. GENERAL
10.1 This Agreement is governed by English Law and the parties
submit to the exclusive jurisdiction of the English courts. This Agreement
constitutes the entire agreement and understanding between the parties and
supersedes all prior negotiations, representations, or agreements, whether
written or oral.
10.2 This Agreement may be amended only by a written instrument
signed by a duly authorized representative of the party to be bound.
10.3 Failure by either party at any time to require performance by
the other party or to claim breach of any provision of this Agreement shall not
be construed as affecting any subsequent breach or the right to require
performance with respect thereto or to claim a breach with respect thereto.
10.4
IF ANY PART OF THIS AGREEMENT SHALL BE INVALID OR UNENFORCEABLE, SUCH INVALIDITY
OR UNENFORCEABILITY SHALL NOT AFFECT THE VALIDITY OR ENFORCEABILITY OF THE
REMAINING TERMS AND CONDITIONS
EXHIBIT G
PRODUCT CHANGE NOTICES
INTERWAVE may, at any time, make changes to the Products or modify the
drawings and specifications relating thereto, or substitute Products of later
design to fill an order (hereinafter referred to as "Product Change"),
provided that any such Product Change, under normal and proper use, does not
affect form, fit or function of the Products or the interchangeability of the
Products with other Products, and that INTERWAVE notifies ADC in writing
thereof as soon as practicable. In the event any Product Change affects form,
fit or function of the Products, INTERWAVE shall notify ADC in writing
thereof prior to any planned change, except Class D Changes - non Customer
Affecting. In the event ADC may reject the planned change and so notifies
INTERWAVE within ten (10) days and INTERWAVE fails to reach agreement
thereon, ADC shall have the right to terminate any and all orders, in whole
or in part, for the Products affected by such change. Notwithstanding any
notice requirement above to the contrary, INTERWAVE shall immediately notify
ADC when it determines that a Class A Product Change (as defined hereinafter)
shall be made. INTERWAVE shall be authorized to make Class A Product changes
as soon as practical.
Notwithstanding any notice requirements to the contrary elsewhere in this
Agreement, all Class A Product Change Notices shall be provided, at no
charge, and forwarded in accordance with section titled "Notices". Product
Change Notices shall contain all the information set forth in Notices. If
INTERWAVE cancels a Product Change Notice, INTERWAVE must provide
notification in accordance with clause title "Notices" hereto and state the
reason for cancellation and what action, if any, is to be taken in locations
where the change may already have been implemented.
INTERWAVE shall determine the classification per the requirements of Bellcore
Technical Requirement Document TR-OPT-000209 of any proposed Product Change.
If ADC disagrees with any classification assigned by INTERWAVE, ADC shall
have the right to challenge such classification, and INTERWAVE shall, in good
faith, re-evaluate its classification. In the event that ADC and INTERWAVE
fail to reach agreement on any such classification, then ADC shall have the
right to terminate any or all Orders, in whole or in part, for Products
affected by such Product Change without penalty or obligation of any kind.
CLASS A PRODUCT CHANGE
Class A Product Changes are changes required to correct a Product deficiency
(e.g., safety or fire hazard, electrically or mechanically inoperative,
unsatisfactory operation, design defects. Product does not operate as
documented). Class A Product Changes require immediate action by INTERWAVE to
correct all affected Products, whether in the hands of INTERWAVE or ADC or
their customers including spare Products. In some cases, however, it may be
necessary to make a change to only a limited number of a particular type or
Product. (This occurs when it is necessary to correct a condition that occurs
only in certain Product combinations or with the use of certain options).
Such conditions shall be described in the Product Change Notice.
INTERWAVE shall, no later than thirty (30) days from the date of the
notification of a Class A Product Change, provide a schedule, acceptable to
ADC for promptly implementing, at INTERWAVE' expense, such changes with
respect to Products in ADC or their customer's possession. Such
implementation shall include the deinstallation, if necessary, of existing
Products and the engineering and installation of replacement or modified
Products or any additional materials.
NOTICES
INTERWAVE shall furnish monthly status reports to ADC for all Class A Product
Changes of which INTERWAVE has notified ADC. This report shall contain the
following information:
- Product Change Notice Number
- Identity of the Products
- Model or part number and issue
- Date Product Change Notice issued
- Product ship date
- Installation or application responsibility
- Locations at which change is to be made (to be supplied by
ADC)
- Date completed, by location - Changes on hold at any location
CLASS B PRODUCT CHANGE
Class B Product Changes are changes made to incorporate improvements in
design resulting in better operation, improved testing, better maintenance,
longer life, service improvements, cost reductions, addition of essential
features, and the like.
All Products shipped to ADC after the effective date of any Class B Product
Change shall incorporate such change. Any Products shipped to ADC prior to
such date may be modified by ADC at its option and expense.
No Class B changes shall effect interoperability of the product
CLASS D PRODUCT CHANGE
Class D Product Changes are design improvements, component changes, new
features, or other minor improvements not sufficiently significant as to
require a Class B classification. Class D Product Changes are also used when
a change is required to facilitate manufacture or to effect a cost reduction
not sufficiently important to justify a Class B classification.
No Class D changes shall effect the interoperability of the product
INTERWAVE shall furnish in accordance with the "Notices" Section a quarterly
report listing all Product Change Notices released during the previous twelve
(12) months. This report will contain the following information: (a) Product
Change Notice Number, (b) Issue Date of Change, (c) Drawing Number, (d)
Change Classification, and (e) Modification Expiration Date. INTERWAVE will
provide ADC a copy of all change notices as soon as they become available.
EXHIBIT H
SUPPORT AND UPGRADE POLICY
1. This policy describes the responsibilities of INTERWAVE and ADC with
respect to hardware and software upgrades that are required to resolve
demonstrated problems with the equipment. These are known as "problem
fix upgrades". Hardware and software upgrades whose purpose is to
enhance the functionality of the equipment ("feature upgrades") are
quoted by INTERWAVE on a case-by-base basis and are not covered by this
policy.
2. For software problems that are reported by ADC, verified and/or
recreated by INTERWAVE and which are fixed on a subsequent revision of
software, INTERWAVE shall provide to ADC two (2) master copies of the
software revision that incorporates the fix. The software will be
accompanied by a completed "Engineering Change Request (Software)" form
which, among other information, states the severity of the problem
("Class of Change") and a non-binding recommendation to ADC on the
handling of the change in the field ("Field Effectivity Status"). The
decision on the deployment, if any, of the software fix to one or more
end-users in the field is the responsibility of ADC and all costs
associated with that deployment will be borne entirely by ADC. This
paragraph describes the totality of INTERWAVE' responsibilities which
are limited to the provision of the two master sets of software and of
the accompanying Engineering Change Request (ECR) notification.
3. For hardware problems that are reported by ADC, verified and/or
recreated by INTERWAVE and which are fixed by a hardware modification to
the card, module or subsystem, INTERWAVE shall provide to ADC a
completed "Engineering Change Request (Hardware)" form which, among
other information, states the severity of the problem ("Class of
Change"). The Class of Change defines INTERWAVE' responsibilities with
regard to the performance of the hardware upgrade to units that are
already installed in the field.
a. If the assigned Class of Change is "A", then INTERWAVE will perform
the required hardware upgrade to effected units at no charge.
b. If the assigned Class of Change is "AC" or "AR", then INTERWAVE will
perform the required hardware upgrade to effected units at no charge
if ADC so requests in writing within thirty (30) days of receipt of
the associated ECR.
c. If the assigned Class of Change is "B" or "D", then INTERWAVE will
not upgrade any installed units at no charge. At ADC's request,
INTERWAVE will quote such upgrades on a case-by-case basis.
In all instances where the Class of Change obligates INTERWAVE to
perform no-charge hardware upgrades. ADC shall request and receive a
Return Authorization and shall promptly return all parts requiring the
upgrade, freight prepaid to INTERWAVE' Service Department INTERWAVE
shall have twenty (20) business days to perform the upgrade and return
the part, freight prepaid, to ADC.
4. For enhancements or new feature upgrades, ADC may send the Product to be
upgraded freight prepaid to INTERWAVE' Service Department. ADC must
issue a purchase order for the upgrade cost as specified in INTERWAVE'
then current upgrade price list. A Return Authorization must be included
with the Product sent to INTERWAVE. The upgraded Product will be
returned to ADC within twenty (20) business days.
5. Advance Replacement Service. If necessary, ADC may request an advance
replacement exchange for the unit to be upgraded for those cases in
which ADC can not wait the standard return period. ADC may arrange for
this service as follows:
- Secure a Return Authorization for the Product to
be exchanged.
- Issue a purchase order for the Product required
at INTERWAVE' then current list price plus the
cost of the upgrade and a $750 exchange service
fee.
- Upon receipt of the proper purchase order.
INTERWAVE will ship to ADC an upgraded product
for exchange. Upon receipt of the Product ADC
should immediately return the exchanged Product
in the same container.
- Upon receipt of the returned Product INTERWAVE
will issue a credit against ADCs purchase order
for the list price of the returned Product
If the exchanged Product is not returned within thirty (30) days ADC will be
invoiced for the Product shipped at the list price and ADC agrees to pay said
invoice due upon receipt
CLASS OF CHANGE DEFINITIONS
CLASS A CHANGES
A. Changes which are (1) needed to correct (a) conditions which result in safety
hazards, or (b) conditions which result in non-compliance with federal
registration or radiation requirements or other federal, state or local safety
regulations or UL requirements; and (2) judged by Customer severe enough to have
to be made to all hardware in process, in stock or installed.
CLASS AC CHANGES
Changes which are (I) needed to correct (a) inoperative electrical
or mechanical conditions, or unsatisfactory maintenance or operating
conditions, or (b) conditions which result in safety hazards, where
the conditions in (a) or (b) are caused by circuit combinations or
options which exist only on certain hardware; (2) needed to
compensate for marginal (worse circuit) cases where the inoperative
or unsatisfactory conditions exist on certain hardware and cannot be
associated with specific circuit combinations or options. Such
changes shall be made on Products in process and if requested by
Buyer on Products in stock or returned to an authorized repair
center.
CLASS AR CHANGES
Changes which are needed to correct unsatisfactory electrical,
mechanical or operating conditions, which may be allowed to exist on
a temporary basis. Such changes shall be made to Products in
process, except that in some cases, if Customer gives written
consent, Products may be shipped for a period of time specified by
Customer without incorporating the change at that time to Products
in process. If Customer requests that such changes be made to
Products in stock or already installed, supplier shall make such
changes.
CLASS B - CHANGES
Changes which are sufficiently important to require their application to
Products being manufactured (as soon as reasonably possible) and/or which may
also be recommended for application to existing stock and installations in
the field. Examples of this class of changes may include, but are not limited
to:
a) Providing new features that directly affect Product operability.
b) Providing design improvements which result in better service
capabilities, longer life or improved operability margins.
c) Providing changes in design which result in important cost
savings to Customer.
CLASS BU CHANGES
For conditions of a mandatory nature, for example, the fulfillment
of future federal registration or future compatibility requirement
or for conditions of sufficient importance to be intended for
universal application. Such changes would only be required of
Products in process.
CLASS D CHANGES- NON-CUSTOMER AFFECTING
D. Other changes not sufficiently important to justify application to
Products being manufactured within any specified time frame and not
sufficiently important to recommend for application to existing stock and
installations in the field.
EXHIBIT I
DIAGNOSTIC SUPPORT SERVICES
I. INTERWAVE' RESPONSIBILITIES
INTERWAVE will provide at prevailing rates either via annual service
agreement or time and materials, to ADC the following support
services to ADC during the term of this Agreement, except that
during the warranty period, such support services shall be free of
charge.
A. Dial-in Diagnostics:
INTERWAVE shall provide, during its principal period of
service (PPS), a dial-in diagnostic service which will
allow INTERWAVE technical support engineers remote dial-in
access to an End User node in order to perform on-line
diagnostics and problem determination. Problem
determination and resolution will be performed with ADC not
the End User. INTERWAVE will make every reasonable effort
to respond to service requests promptly.
B. Network Emergency Assistance:
1. A "Network Emergency" shall be defined as the failure
of a previously operating INTERWAVE Product which
renders the Product inoperable.
2. INTERWAVE will provide access to INTERWAVE technical
support engineers via a telephone "Hot Line" to assist
ADC with Network Emergencies twenty-four (24) hours a
day, seven (7) days a week.
3. INTERWAVE reserves the right to invoice ADC at the time
and material rates then in effect, for support services
requested by ADC outside the PPS which is determined not
to be a Network Emergency.
C. "Principal Period of Support" ("PPS") means the period of 8
am. to 5 p.m. Pacific Time, Monday through Friday,
excluding INTERWAVE observed holidays.
D. Problem Resolution
For each network emergency, INTERWAVE will assign a systems
engineer to follow through and report status to ADC until
such time as the problem is resolved.
II. RESPONSIBILITIES OF ADC
A. ADC Support Staff:
1. ADC shall maintain a technically competent staff
sufficiently trained to provide direct support of
INTERWAVE Products to the End User. At least one ADC
technical support representative must attend INTERWAVE'
training program prior to the date of any support
services request
2. ADC shall designate in writing (by name, title, address
and phone number) to INTERWAVE a primary technical
support representative.
(i) the ADC support representative shall be the
primary contact with INTERWAVE for all support
services provided hereunder.
(ii) ADC may designate in writing to INTERWAVE up to
two (2) alternate technical support
representatives who will be authorized to place
support calls with INTERWAVE.
(iii)ADC agrees that only the primary or alternate
technical support representatives will request
support services provided hereunder and that such
representatives will be knowledgeable in the
support of the Products.
(iv) ADC may change primary and alternate technical
support representative(s) by issuing written
notice to INTERWAVE.
B. When use of the INTERWAVE dial-in diagnostics capability is
requested by ADC and/or determined by INTERWAVE to be necessary:
1. ADC shall insure that a telephone line is available to be
attached to the integral modem on the End User node.
2. ADC shall obtain from the End User and be responsible for
all necessary authorizations for remote access by
INTERWAVE to the End User node.
3. ADC agrees that during any such remote access INTERWAVE
shall at all times be acting as an agent for ADC.
C. ADC shall use system support provided hereunder only in support
of its End Users and any internal Products used by ADC.
III. GENERAL PROVISIONS
All INTERWAVE test and diagnostic software and documentation, whether on
ADC's site, accessible by
remote inquiry or incorporated into the Products, shall be and remain
the confidential and proprietary property of INTERWAVE.
AMENDMENT #1 TO
PURCHASE/RESALE AGREEMENT
DATED FEBRUARY 27, 1997
1) MODIFICATION TO RECITALS AND SECTION 1 (AUTHORIZATION)
"RECITALS
Whereas, INTERWAVE develops, manufactures and distributes certain
wireless communications products, including the products set forth on APPENDIX A
hereto (the "Products"), and,
INTERWAVE and ADC desire that each act as a non-exclusive reseller of
the other company's Products under the terms and conditions set forth below,
except for the areas identified in Exhibit B which define an exclusive
arrangement for the sale of InterWave produced equipment,
NOW, therefore, INTERWAVE and ADC agree as follows:
SECTION 1 AUTHORIZATION
(a) APPOINTMENT. Subject to the terms of this Agreement,
INTERWAVE appoints ADC, and ADC accepts such appointment, as a non-exclusive
reseller of the InterWave Products except for the territories as set forth in
EXHIBIT B (the "TERRITORY"). This Agreement applies only to those INTERWAVE
products which are listed in Appendix A as amended from time-to-time upon
agreement between the Parties and as herein provided. In addition, subject to
the terms of this Agreement, ADC appoints InterWave, and InterWave accepts such
appointment, as a non-exclusive reseller of certain ADC Products as identified
in Exhibit A for InterWave territories as set forth in EXHIBIT B (the
"TERRITORY").
(b) FORMAT. ADC and InterWave may use or resell the other
party's Products as either stand-alone products, or in combination with other
products of their choice that meet the technical standards of the Products. ADC
and INTERWAVE makes no representation that the other company's Products will be
appropriate for combination with any other product(s)."
2) MODIFY SECTION 2 (PRICE) AS FOLLOWS:
"SECTION 2 PRICE
2.1 Prices for the INTERWAVE Products to be sold to ADC for resale are
based on market prices to end-users, and the discount schedule shown as Appendix
A to Exhibit "A" to this Agreement, as may be modified from time to time.
Initial prices are shown at Appendix B to Exhibit "A". Prices for the ADC
Products sold by INTERWAVE are shown as Appendix C to Exhibit "A"; these ADC
products are to be sold by INTERWAVE according to the terms in Appendix C to
Exhibit A".
2.2 Additional Products will be introduced by ADC and/or INTERWAVE from
time to time during the course of this Agreement and such products will be
priced and offered for resale by the other company through periodic amendments
to Exhibit A."
1
3) MODIFY SECTION 3 (AGREEMENT COMMENCEMENT DATE) AS FOLLOWS:
"SECTION 3 AGREEMENT COMMENCEMENT DATE
3.1 For purposes of timely execution of several of the terms and
conditions hereof, the "Agreement Commencement Date" shall be that date on which
ADC and INTERWAVE agree that (i) the initial INTERWAVE product has been
independently certified to be GSM compliant (11.21 compliant), AND (ii) that the
initial INTERWAVE product meets the jointly agreed ADC product specifications
and acceptance criteria which are contained in Appendix D of Exhibit A. Such
specifications and acceptance criteria shall be initially based on INTERWAVE's
Release 3.0 (previously noted as Release 1.1) feature set. Modifications may be
necessary to comply with the product specifications and acceptance criteria in
Appendix D of Exhibit A and shall be concluded by Release 5.0. In order to
establish the "Agreement Commencement Date", the GSM compliant product (11.21
compliant and Release 3.0) shall be available to ADC and applicable agencies for
certification activities no later than October 31, 1997 in order to allow
production and shipment by INTERWAVE of compliant equipment by end of year,
1997. Provided these conditions are met, the "Agreement Commencement Date" shall
be established on November 1, 1997.
4) MODIFY SECTION 5.1.4 (ADC OBLIGATIONS) AS FOLLOWS:
"5.1.4 ADC will market INTERWAVE Product to various cellular
operators with exclusivity to operators in specified geographies as
enumerated on Exhibit B with a commitment to achieve a minimum of [***] in
purchases from INTERWAVE during the first 12 months following the Agreement
Commencement Date. In the second 12 months following the Agreement
Commencement Date, ADC has a non-binding forecast to an additional [***] in
purchases from INTERWAVE. ADC has advanced [***] in cash to INTERWAVE in
April, 1997; these funds will be used to purchase INTERWAVE assets and
demonstration systems in the ADC exclusive countries shown in Exhibit B. Any
portion of the [***] not used for asset transfer will be credited towards the
[***] in purchases during the first 12 months following the Agreement
Commencement Date.
5) ADD NEW SECTION 5.1.4.1 (PERFORM REGULAR CONTRACT MAINTENANCE)
"5.1.4.1 ADC and INTERWAVE will perform regular maintenance on the
Agreement (i.e.; quarterly) to reflect any required modifications (e.g.; in
conjunction with material changes in INTERWAVE's equity ownership)."
6) DELETE SECTION 5.1.6 (ADC OBLIGATIONS)
7) MODIFY SECTION 5.2.2 (INTERWAVE OBLIGATIONS) AS FOLLOWS:
"5.2.2 INTERWAVE, insofar as practical, will provide modifications
and/or enhancements to its Products requested by ADC as mutually agreed by the
Parties. For modifications or enhancements beyond the jointly agreed
specifications (Section 3.1) INTERWAVE will provide engineering resources (up to
a maximum of 24 man-months per calendar year) to perform custom engineering to
accommodate ADC requests for specific product features or changes. Such
engineering resources will be billed to ADC on an as-used basis at the rate of
$100 per hour. INTERWAVE will attempt to provide additional resources to meet
ADC's custom engineering needs on an as-requested basis. In lieu of paying
INTERWAVE for its engineering resources, in certain instances, ADC may supply
its own resources to perform certain custom engineering or enhancement work. In
turn, INTERWAVE may request engineering resources from ADC
2
* Certain information on this page has been omitted and filed separately
with the SEC. Confidential treatment has been requested with respect to
the omitted portions.
in aiding the design, development and testing of the INTERWAVE
specified product which will be billed to INTERWAVE on an as-used basis at the
raze of $100 per hour plus any additional expenses that are required to
interface with INTERWAVE's design team."
8) MODIFY SECTION 5.2.4 (INTERWAVE OBLIGATIONS) AS FOLLOWS:
5.2.4 INTERWAVE will not compete directly with ADC in the sales of the
INTERWAVE Product as enhanced or modified pursuant to the Agreement to the
specified geographical areas and cellular system operators as described in
Exhibit "B" unless:
1. Customer states that it will only do business directly
with INTERWAVE, or,
2. Customer does not wish to do business directly with ADC, or
3. Customer is purchasing a private labeled or co-branded
product from an INTERWAVE OEM.
Should a conflict arise, INTERWAVE agrees to cooperate with ADC in good
faith to attempt to resolve the issue in ADC's behalf. Additionally, INTERWAVE
shall obtain ADC's approval prior to the consummation of any OEM relationship
that INTERWAVE wishes to enter into other than this Agreement; this approval
shall not be unreasonably withheld."
9) MODIFY SECTION 5.2.9 (INTERWAVE OBLIGATIONS) AS FOLLOWS:
"5.2.9 Following receipt of the initial [***] advance deposit
referred to in Section 5.1.4, INTERWAVE will commence development of a PCS 1900
version of the INTERWAVE Products, with a target initial customer trial (beta
release) date no later than April 30, 1998; this beta release will fully support
the requirements outlined in Appendix E of Exhibit A. Additionally, INTERWAVE
will support an initial customer alpha trial for PCS 1900 no later than
February, 1998 with a minimum commitment of six (6) 1900 Transceiver (TRX) cards
for the WAVEXpress base station."
10) MODIFY SECTION 7 (MARKETING REVIEW) AS FOLLOWS:
"SECTION 7 MARKETING AND TECHNICAL REVIEW
7.1 Representatives of both INTERWAVE and ADC shall meet promptly after
completion of the first three-month period of this Agreement, and at least
quarterly thereafter (while this Agreement remains in force) to review INTERWAVE
and ADC's sales, market strategies, and objectives, product support activities,
promotion and advertising plans, and competition. Meeting location shall be
agreed upon for the mutual convenience of the parties.
7.2 Representatives of both INTERWAVE and ADC shall meet on a regular
basis (i.e.; monthly program review) to review product development and
operations support activities in order to develop and manage the specification
of new requirements and/or necessary corrections for existing products. Meeting
location and logistics shall be agreed upon for the mutual convenience of the
parties."
11) MODIFY, AS FOLLOWS, SECTION 13 (TRADEMARKS: TRADE NAMES, LOGOS,
DESIGNATIONS, AND COPYRIGHTS) TO INCLUDE SECTION 13.6 (NEW):
"13.6 INTERWAVE agrees to allow ADC to add the ADC
logo/branding information, markings and identification information (e.g.; bar
codes) that are not in conflict with the other items in Section 13."
3
* Certain information on this page has been omitted and filed separately
with the SEC. Confidential treatment has been requested with respect to
the omitted portions.
The forecast will be updated Quarterly starting in 4Q97. All deliveries made
prior to Release 5.0 will be upgraded to Release 5.0 software at ADC's
request at no additional charge.
Any Forecast stated on behalf of ADC is non-binding on the part of ADC nor
would any forecasted products and services not taken result in any additional
xxxxxxxx, obligations or legal recourse if ADC does not accept, achieve or
take shipment of this Forecast.
SECTION IV CALL OFF ORDERS
The initial call off order will be issued for the first 20 systems
as shown in Section III. This call off order will be issued by September
26, 1997. Subsequently, call off orders will be issued two quarters in
advance beginning in 2Q98 for delivery in 4Q98.
SECTION V SPECIAL PAYMENT TERMS
Payment terms are as specified in the Purchase/Resale Agreement
with the exception of the first 10 systems shipping in calendar year 1997.
Full payment on these 10 systems will be within 75 day from the interWAVE
invoice date.
SECTION VI TERMS AND CONDITIONS
All terms and conditions not specifically covered in this
Frame Contract will be as stated in the Purchase/Resale Agreement in
existence on the date of the shipment
ADC Telecommunications, Inc. interWAVE Communications
International, Ltd.
By: /s/ [ILLEGIBLE] By: /s/ [ILLEGIBLE]
----------------------------- --------------------------
Title: SENIOR VICE PRESIDENT Title: Sr VP CFO
-------------------------- -----------------------
Date: Date: 10/14/97
--------------------------- ------------------------
4
APPENDIX A TO EXHIBIT A
DISCOUNT SCHEDULE BASED ON VOLUME ($ MILLIONS)
ANNUAL PURCHASE COMMITMENT: $0-10 $10-20 20-40 $40+
----- ------ ----- ----
Discount from "Market" Price
YEARS AFTER AGREEMENT COMMENCEMENT DATE (NOTE 1):
First [***] [***] [***] [***]
Second [***] [***] [***] [***]
Third and beyond [***] [***] [***] [***]
"Market Price" means: the end user price recorded by IWC and ADC for their
respective end-user (operator) sales accounts, by geographic region (Europe,
Asia-Pacific and North America.).
Average sales over the preceding three months will be used to determine the
"market" price.
Pricing will be reviewed and modified as necessary on a quarterly basis..
In cases where special circumstances dictate a greater than normal discount from
list for an end-user (such as when an operator elects to make an equity
investment in conjunction with his product purchase arrangement) those
transactions will be excluded from the calculation of "average"; likewise if ADC
has a special case requiring an usual discount, then INTERWAVE will cooperate
and share the pain in terms of margin impact.
Depending on market price erosion over time, INTERWAVE and ADC reserves the
right to re-negotiate the ADC discount.
Note:
1. In conjunction with a commitment purchase agreement between ADC and
INTERWAVE, ADC shall receive an additional [xxx] off of the
discounted price for the first and second year of the purchase
agreement. For example, the first year discount for purchases
between $ 0 - 10 M is now [xxx] rather than [xxx].
* Certain information on this page has been omitted and filed separately with
the SEC. Confidential treatment has been requested with respect to the
omitted portions.
APPENDIX B TO EXHIBIT "A"
INITIAL MARKET PRICES
-------------------------------------------------------------------------------------------------------------------------------
WAVEXPRESS/BTS - 900 MHz (INCLUDES 1 ABIS
INTERFACE)
(1) TRX [***] or
(1) 1800 TRX [***] or
(1) 1900 TRX [***]
Additional 900 TRX [***] or
Additional 1800 TRX [***] or
Additional 1900 TRX [***]
Additional Power Supply [***]
Additional Software Feature Releases: 15% of product cost
depending on feature content
--------------- ------------------------------------------------------------------ ---------------- ---------------------------
-------------------------------------------------------------------------------------------------------------------------------
WAVEXPRESS/BSC
(2) A, (2) Abis Interface [***]
module
Additional A-int Trunk module [***]
Additional Abis interface trunk card
- with 32 channel TRAU capacity [***]
- with 64 channel TRAU capacity [***]
Additional Power Supply [***]
BTS Management Software [***] per TRX
Additional Software Feature Releases:
product cost depending on feature content 1[***]% of
--------------- ----------------------------------------------------------------------------------- ---------------------------
-------------------------------------------------------------------------------------------------------------------------------
WAVEXPRESS OUTDOOR ENCLOSURE
Environmental Cabinet [***]
Celwave Filter Kit, Outdoor [***]
Heat Exchanger, Outdoor [***]
UPS, Outdoor [***]
--------------- ------------------------------------------------------------------ ---------------- ---------------------------
-------------------------------------------------------------------------------------------------------------------------------
WAVEVIEW OMC-R (UNIX/MOTIF)
WAVEView OMC-R Server Software [***]
WAVEView OMC-R Client Software [***] per copy
X-terminal client license per copy [***] per copy
TRX Management [***] per TRX
--------------- ------------------------------------------------------------------ ---------------- ---------------------------
-------------------------------------------------------------------------------------------------------------------------------
CRAFT INTERFACE PC
Craft Hardware and Software [***]
--------------- ------------------------------------------------------------------ ---------------- ---------------------------
*Certain information on this page has been omitted and filed separately with
the SEC. Confidential treatment has been requested with respect to the omitted
portions.
APPENDIX B TO EXHIBIT "A"
INITIAL MARKET PRICES
-------------------------------------------------------------------------------------------------------------------------------
MICROXPRESS/BTS
Base System (900 MHz) [***] or
Base System (1899/190 MHz) [***]
Optional Wall Mount Kit [***]
Optional Pole Mount Kit [***]
Addit'l Software Feature Releases:
12%-15% of product cost
depending on feature content
--------------- ------------------------------------------------------------------ ---------------- ---------------------------
-------------------------------------------------------------------------------------------------------------------------------
DOCUMENTATION
WAVEXpress/BTS Installation Guide [***]
WAVEXpress/BSC Installation Guide [***]
WAVEXpress/BS+ Installation Guide [***]
WAVEView UNIX Installation Guide [***]
WAVEView UNIX Operator's Manual [***]
Craft Interface Operators Manual [***]
--------------- ------------------------------------------------------------------ ---------------- ---------------------------
*Certain information on this page has been omitted and filed separately with
the SEC. Confidential treatment has been requested with respect to the omitted
portions.
APPENDIX B TO EXHIBIT "A"
INITIAL MARKET PRICES
-------------------------------------------------------------------------------------------------------------------
WAVEXCHANGE SWITCH 1.0 [INCLUDES (1) PTSN & (1)A/ABIS INTERFACE
MODULES)
(1) 2-port E1/switch module [***]
Additional CPU module [***]
Additional 2-port E1 A-interface trunk module [***]
Additional 2-port E1 PSTN interface trunk module [***]
- with 32 channel Echo capacity [***]
- with 65 channel Echo capacity [***]
Additional 2-port E1/switch module [***]
Integrated BSC [***]
Subscriber management [***]
HLR/VLR
Up to 500 subscribers [***]
501 - 1,000 subscribers [***]
AUC [***]
Call data records
Up to 500 subscribers [***]
501 - 1,000 subscribers [***]
Radio Channel Control [***] per Tr Channel
Integrated TRAU [***] per DSP module
Echo Cancellation [***] per DSP module
Additional Power Supply [***]
Additional Software Feature Releases:
product cost depending on feature content [*****]% of
------------- ------------------------------------------------------------------------- ---------------------------
-------------------------------------------------------------------------------------------------------------------
WAVEVIEW OMC-S
WAVEView OMC-S Server Software [*****]
WAVEView OMC-S Client Software [*****]
Radio channel management [*****] per voice channel
------------- ---------------------------------------------------------- -------------- ---------------------------
NOTE: SPARES ARE TYPICALLY QUOTED AT 5% OF THE SYSTEM CONFIGURATION
SUPPORT AND TRAINING ARE SEPARATELY QUOTED DEPENDING ON THE OPERATOR
REQUIREMENTS
*Certain information on this page has been omitted and filed separately with
the SEC. Confidential treatment has been requested with respect to the omitted
portions.
8
APPENDIX C TO EXHIBIT "A"
LIMITED DISTRIBUTION AGREEMENT
& PRICING FOR ADC PRODUCTS
ADC CityRFx - Distributed Antenna System
---------------------------------------------------------------------------------------------------------
MODEL DESCRIPTION LIMITED DISTRIBUTOR
PRICE/UNIT
---------------------------------------------------------------------------------------------------------
900 MHZ GSM
---------------------------------------------------------------------------------------------------------
CFXB-900AA BEX, 60 vac [***]
---------------------------------------------------------------------------------------------------------
CFXB-900AD BEX, 28 vdc [***]
---------------------------------------------------------------------------------------------------------
CFXM-900AA MEX, 60 vac [***]
---------------------------------------------------------------------------------------------------------
CFXM-900AD MEX, 28 vdc [***]
---------------------------------------------------------------------------------------------------------
CFXI-900FA In-line MEX;60vac [***]
---------------------------------------------------------------------------------------------------------
CFXI-900FD In-line MEX;28vdc [***]
---------------------------------------------------------------------------------------------------------
1800 MHZ PCN
---------------------------------------------------------------------------------------------------------
All PCN MEX Xxxxx, 00 vac [***]
---------------------------------------------------------------------------------------------------------
All PCN BEX Xxxxx, 00 vac [***]
---------------------------------------------------------------------------------------------------------
1900 MHZ PCS
---------------------------------------------------------------------------------------------------------
CFXM-190AA A-block EMEX, 60 vac [***]
---------------------------------------------------------------------------------------------------------
CFXM-190BA B-block EMEX, 60 vac [***]
---------------------------------------------------------------------------------------------------------
CFXM-190CA C-block EMEX, 60 vac [***]
---------------------------------------------------------------------------------------------------------
CFXM-190DA D-block EMEX, 60 vac [***]
---------------------------------------------------------------------------------------------------------
CFXM-190EA E-block EMEX, 60 vac [***]
---------------------------------------------------------------------------------------------------------
CFXM-190FA F-block EMEX, 60 vac [***]
---------------------------------------------------------------------------------------------------------
CFXB-190XA 1900 MHz BEX, 60 vac [***]
---------------------------------------------------------------------------------------------------------
CFXI-190XA 1900 MHz IMEX, 60 vac [***]
---------------------------------------------------------------------------------------------------------
ACCESSORIES
---------------------------------------------------------------------------------------------------------
01-61985001 3 dB In-line Attenuator, pwr passing [***]
---------------------------------------------------------------------------------------------------------
01-61986001 6 dB In-line Attenuator, pwr passing [***]
---------------------------------------------------------------------------------------------------------
01-61987001 10 dB In-line Attenuator, pwr passing [***]
---------------------------------------------------------------------------------------------------------
01-61988001 20 dB In-line Attenuator, pwr passing [***]
---------------------------------------------------------------------------------------------------------
01-61989001 75 ohm "F"-male Termination [***]
---------------------------------------------------------------------------------------------------------
01-61982001 8 dB Directional Coupler [***]
---------------------------------------------------------------------------------------------------------
01-61983001 12 dB Directional Coupler [***]
---------------------------------------------------------------------------------------------------------
01-61984001 16 dB Directional Coupler [***]
---------------------------------------------------------------------------------------------------------
01-61980001 2-Way Splitter, pwr passing [***]
---------------------------------------------------------------------------------------------------------
01-61981001 3-Way Splitter, pwr passing [***]
---------------------------------------------------------------------------------------------------------
CFXP4060A Pwr Transformer, 120 vac In/60 vac Out [***]
---------------------------------------------------------------------------------------------------------
CFXP-4028A Pwr Supply, 120 vac In/28 vdc Out Quote [***]
---------------------------------------------------------------------------------------------------------
00-000-00000 RG-6 Plenum Cable Quote [***]
---------------------------------------------------------------------------------------------------------
01-61979001 "F" Male Crimp Connector for RG-6 Quote [***]
---------------------------------------------------------------------------------------------------------
PE4508 "N" Male Crimp Connector for RG-6 Quote [***]
---------------------------------------------------------------------------------------------------------
01-61978101 RG-11 Plenum Coaxial Cable Quote [***]
---------------------------------------------------------------------------------------------------------
01-61979101 F-11 Connector for RG-11 Quote [***]
---------------------------------------------------------------------------------------------------------
* ALL PRICES SHOWN ARE $USD; F.O.B. HILLSBORO, OR
*Certain information on this page has been omitted and filed separately with
the SEC. Confidential treatment has been requested with respect to the
omitted portions.
9
APPENDIX C TO EXHIBIT "A"
LIMITED DISTRIBUTION AGREEMENT
& PRICING FOR ADC PRODUCTS
ADC CityLink - F1/F2 Repeater
---------------------------------------------------------------------------------------------------
MODEL DESCRIPTION LIMITED
DISTRIBUTOR
PRICE/UNIT
---------------------------------------------------------------------------------------------------
CLRA-1112AW CityLink 1900; A-block; 1 Ch; 1.25 MHz BW: AC Pwr [***]
---------------------------------------------------------------------------------------------------
CLRB-1112AW CityLink 1900; B-block; 1 Ch; 1.25 MHz BW: AC Pwr [***]
---------------------------------------------------------------------------------------------------
CLRA1212AW CityLink 1900; A-block; 2 Ch; 1.25 MHz BW: AC Pwr [***]
---------------------------------------------------------------------------------------------------
CLRB1212AW CityLink 1900; B-block; 2 Ch; 1.25 MHz BW: AC Pwr [***]
---------------------------------------------------------------------------------------------------
TBD Field Kit; Add Second CDMA Channel [***]
---------------------------------------------------------------------------------------------------
TBD Spare Kit; Replaces Fwd and Rev Link Modules [***]
---------------------------------------------------------------------------------------------------
* ALL PRICES SHOWN ARE $USD; F.O.B. HILLSBORO, OR
INTERWAVE and ADC agree to negotiate in good faith terms and conditions which
shall cover the products listed in this Appendix C. Such negotiations shall be
completed no later than October 31, 1997
*Certain information on this page has been omitted and filed separately with
the SEC. Confidential treatment has been requested with respect to the
omitted portions.
10
APPENDIX D TO EXHIBIT "A"
INTERWAVE SPECIFICATIONS AND AVAILABILITY DATES
BSS PRODUCT PLAN
RELEASE 1.0
RELEASED
--------
CONTENT FROZEN
- 1-10 TRX per BSC
- 1-10 BSC per BSC
- No cycling of MS Power
- MS Dynamic Power Control on
RxQual and RxLev
- Separate Settable HO Margins
- Settable handover priorities
- MS Fast Power Down
- Speed Sensitive microcell HO
- MX Daisy Chain (up to 4)
- 12.21 std Abis Interface to BTS
- Racal BSS Testing Support
- TRX Hot Swap
- Enh Network Perf Statistics
- Nodule Serial Number ID
- BSS Increased Capacity
RELEASE 2.0
GENERAL RELEASE
---------------
DEC 97
------
CONTENT FROZEN
- Quality Updates (PRs Bug Fix)
- Non-Encrypted Software Release
- IWP MMU Support
- BSS Eng Guidelines / Cap. Rules
- BTS Standalone Diagnostics
- Radio Compatibility / Support
- GSM Data Services
- .nm File Cleanup
- Intelligent Software Upgrades
- MicroXpress Battery Backup
RELEASE 3.0
GENERAL RELEASE
---------------
1Q98
CONTENT FREEZE: SEP 97
- DCS1800 Full Band Radio (WE/MX & GSM900 Radios (WE)
-11.21 Compliant Prod Units
-Temp Comp (-40DEG.C to 55DEG.C)
-2w (33dBm) at Antenna Port
- Environmentally Hardened MX
-Temp Comp (-40DEG.C to 55DEG.C
-Humidity, Solar, Rain, Dust
- Antenna Receive Diversity
- Dynamic Power Control
- Directed Retry (phase 1 and phase 2 mobiles)
- WE 3 TRX BTS support
- WE Integrated high Power TRX
-2-10 Xxxxx
-1800/900 Frequencies
- External high power masthead
-WX/MX
-900/1800 Frequencies
- OMC Support
- Quality Improvements
11
APPENDIX D TO EXHIBIT "A"
INTERWAVE SPECIFICATIONS AND AVAILABILITY DATES
BSS PRODUCT PLAN (CON'T)
RELEASE 4.0
GENERAL RELEASE
---------------
2Q98
CONTENT FREEZE: OCT 97
- 1 to 20 TRX per BSC
- 1 to 20 BTS per BSC
- Xxxxxxx `A' WE Enclosure
- Cell Broadcast
- Idle Chan Intf Msmt & Notif
- HO on congestion w/ threshold
- Force HO to second best cell
- DTX downlink (uplink by MS)
- Call Trace
- T1 Support 900/1800 (WE BSC/BTS Adjunct)
- Underlay test and HO test
- Handover margins for each cell
- OMC support
- Quality Improvements (PRs)
- Double BCCH Allocation
- Very Early Assignment
- Call Queuing
RELEASE 5.0
GENERAL RELEASE
---------------
4Q98
CONTENT FREEZE: 1Q98
- 1 to 20 TRX per BSC
- 1 to 20 BTS per BSC
- A5/2 Encryption
- Paging Group Reorganization
- Windows based Craft PC (should be R4)
- Adj of uplink/downlink volume (should be R4)
- CRC4 support to get performance data on E1/T1 trunk
- Improved diagnostics (off-line, X0, XXX, XXX, Xxxxx Module)
- OMC Support
- Quality Improvements
- SW Download / N-2 support
- MX 900 (Compliant Radio)
- MX2-TRX (New TRX - 1800)
-Frequency Hopping
-
RELEASE 5.0 (CON'T)
GENERAL RELEASE
---------------
4Q98
CONTENT FREEZE: 1Q98
PCS1900
- PCS1900 Radio (WE/MX)
-N.A Compliant prod Units
-Temp Comp (-40DEG.C to 55DEG.C)
-2w (33dBm) at Antenna Port
-Operation over full 1900 Band
- Enhanced Full Rate Vocoder
- Integrated T1 Support (MX / WE)
- ANSI SS7 / Protocol Stack Support
- Mu-law support
- Call Processing modifications
- IMP Microcellullar Algorithms
- 3 Digit MNC support
- E911 Services (Cell-id)
12
APPENDIX D TO EXHIBIT "A"
INTERWAVE SPECIFICATIONS AND AVAILABILITY DATES
BSS PRODUCT PLAN (CON'T)
RELEASE 6.0
GENERAL RELEASE
---------------
2Q99
CONTENT FREEZE: 2Q98
- Next Generation BTS
- Dynamic Channel Alloc (DCA)
- MX 2-TRX (New TRX - GSM900 and PCS1900
- Enh. Overload / Congestion Control
- Improved Threshold Alarms (include changes, rate of changes, link
balance)
- 14.4 Kbps Data
- OMC Support
- Quality Improvements
13
APPENDIX D TO EXHIBIT "A"
INTERWAVE SPECIFICATIONS AND AVAILABILITY DATES
OMC PRODUCT PLAN
RELEASE 1.0 RELEASE 2.0 RELEASE 3.0
RELEASED GENERAL RELEASE GENERAL RELEASE
4Q97 1Q98
CONTENT FROZEN CONTENT FROZEN CONTENT FREEZE: SEP 97
- Object to Alarm Link - BSS 2.0 Support - BSS 3.0 Support
- Lost Alarm / Event Report Rec. - .nm File Cleanup - Manageability Improvements
- Audible Alarm - Display of Vector Map - Quality Improvements
- Multiple Alarm Windows - Most Current Sun Machines - Migration to TCSI OSP 4.0.5
- E1, TRX & TRX Ch Diagnostics - System Configuration - Upgrade to Latest Oracle 7
- Export of Perf Statistics - BSC R1.0 to R2.0 DB Conv. - DB Conversion Utilities
- Batch Audit - Quality Improvements
- Display BSC Software version OMC-S
- Cell Plan Import and Export OMC-S - Support of OMC-R base Enhancements
- BTS / Cell Creation Templates - WAVEXchange Release 2.0 - Integrated OMC-R-S-HLR
- NMI Password Support - Basic System Admin Support - Performance Mgmt
- PC Client support
- On-line help support
- MicroXpress / BTS Support
- Mgt of Daisy Chain Config.
OMC-S
- General Admin via NMI
14
APPENDIX D TO EXHIBIT "A"
INTERWAVE SPECIFICATIONS AND AVAILABILITY DATES
OMC PRODUCT PLAN (CON'T)
RELEASE 4.0 RELEASE 5.0 RELEASE 6.0
GENERAL RELEASE GENERAL RELEASE GENERAL RELEASE
2Q98 4Q98 2Q99
CONTENT FREEZE: OCT 97 CONTENT FREEZE: 1Q98 CONTENT FREEZE: 3Q98
- Quality Improvements - Quality Improvements - Quality Improvements
- Performance Improvements - Performance Improvements - Performance Improvements
- DB Conversion Utilities - DB Conversion Utilities - DB Conversion Utilities
- Disk Redundancy
OMC-R OMC-R
OMC-R - BSS 5.0 Support - BSS 6.0 Support
- BSS 4.0 Support - PCS1900 Support - Interfaces to managers of managers
- Alarm Mgmt (e.g. FTP Alarms) - GUI Redesign - Peer to peer OMC comm
- Enhances E1 Mgmt - PC Client Support - Quality Improvements
- Enhanced Map Mgmt - Multi CAI Support
- Enhanced SW Download for BSS - Enhanced Alarm Management OMC-S
- Support for Mgmt Interfaces - OMC Perf Assessment - Support of OMC-R base Enhancements
- Access Management - Increased Capacity -
Enhanced Performance Meas.
- GUI Enhancements - High Availability Platform
- Comm Module Re-design - Process management
- Software Management - TRAU - Select EFR
- Configuration Mgt Re-design - 3 Digit MNC
- OMC Sync w/BSS DB - T1 I/F on OMC Server
- Cell Mgmt Re-design - T1 Mgt.
- Template Mgt
- Help system Re-design OMC-S
- Support of OMC-R base
OMC-S Enhancements
- Support of OMC-R base - Enhanced Alarm Mgmt
Enhancement - Enhanced Translation
- Integral OMC-S Combo Server Management
- Ext. Translations - Support of Service Management
- Enhanced Performance Meas. - Centralized HLR
- Software Release Mgmt.
- Enhanced CDR Mgmt
15
APPENDIX D TO EXHIBIT "A"
INTERWAVE SPECIFICATIONS AND AVAILABILITY DATES
SWITCH PRODUCT PLAN
RELEASE 1.0 RELEASE 2.0 RELEASE 3.0
GENERAL RELEASE GENERAL RELEASE GENERAL RELEASE
--------------- --------------- ---------------
3Q97 4Q97 1Q98
CONTENT FROZEN CONTENT FROZEN CONTENT FROZEN**
- Support BSS / OSS Release 1.0 - Support BSS / OSS Release 1.0 - Support BSS / OSS Release 1.0
- Support for GSM900/DCS1800 Basic OMC-S -
- (2) BSC; (10) BTS; (20) TRX total - Abbr. Dial Plan (
- 500 subs @ 0.1E - MFCR2 Trunks - Integrated OMC-R-S-HLR
- `A' Interface to iWV BSC - DTMF / MF Tones - Data / Fax (intra WX)
- HLR / VLR Support - Call Barring (Operator Determined) - Caller ID
- Authentication - Call Forwarding Unconditional -
- Ciphering - Echo Cancellation
- Emergency Call - Performance Measurements
- NMI Based Switch Admin - Trunk Group Management
- ISDN PRI Trunks - Engineering Guidelines
- Dial Plan (E.164 psuedo)
- DTMF Tones
- Call Detail Records (CDR)
16
APPENDIX D TO EXHIBIT "A"
INTERWAVE SPECIFICATIONS AND AVAILABILITY DATES
SWITCH PRODUCT PLAN (CON'T)
RELEASE 4.0 RELEASE 5.0 RELEASE 6.0
GENERAL RELEASE GENERAL RELEASE GENERAL RELEASE
2Q98 4Q98 2Q99
CONTENT FREEZE: OCT 97 CONTENT FREEZE: 1Q98 CONTENT FREEZE: 3Q98
- Support BSS / OSS Release 4.0 - Support BSS / OSS Release 5.0 - Support BSS / OSS Release 6.0
- Support (5) BSC (BSS 4.0 rules) for - Support (5) BSC (BSS 5.0 rules) for - Support (10) BSC (BSS 6.0 rules) for
a maximum of (60) TRX a maximum of (60) TRX a maximum of (60) TRX
- 2000 Subs @ 0.1E - Basic PCS 1900 System - 5000 Subs @ 0.1E
- Combo Switch/BSC/BTS/HLR - Centralized HLR - QSIG (Integrated)
- Support for (2) TRX - T1 Trunk support/PRI (NI1) - Fax / Data (PSTN IWF)
- up to 200 subs @ .025E - Multi-party - Short Message Service (SMS)
- Modular expansion - Call Waiting - serves up to (10) WX
- Recorded Announcement - Hold - max 25,000 subs
- Call Forwarding Conditional - IWV MAP (WX Networks) - scalable (entry to max)
- Private A-Link Multiplex (PALIM) - Quality Improvement - MAP (v2)
- MFCR2 Country Variants - Redundancy
- QSIG (Adjunct) - CPU
- Quality Improvement - Hard Disk Drove
- GSM Phase 2+ ASCl
- GSM 2.68 / 3.68 VGCS
- GSM 2.69 / 3.69 VBS
- Broadcast Calls
- Group Calls
- Priority & Pre-emption
- Quality improvement
17
APPENDIX D TO EXHIBIT "A"
INTERWAVE SPECIFICATIONS AND AVAILABILITY DATES
INTERWAVE FEATURE DEFICIENCIES
The following deficiencies as of September 22, 1997, have been identified by ADC
Wireless as necessary requirements for the targeted ADC customer base. INTERWAVE
will commit to the development of features that close these deficiencies by R5.
BSS SUPPORTED
--- ---------
1. Support of data or fax below 9.6Kbit/s, R2 (Fund Spec to be provided)
2. Support for dual band 900/1800 MHz operation. R5
3. Support for drop/insert on Abis for wavexpress. R3 (no bypass)
4. Support for Cell Broadcast (may be an issue with some operators) R 4.0
5. Enhanced Wavexpress Outdoor Design R3?
6. Support for frequency hopping. R5.0
7. Integrated battery backup on indoor Wavexpress. ??
8. Support for sectored BTS. R3 or R4
9. Microcell handover algorithm. R5
10. Remote transcoder option. R5?
11. Kill/Restart individual processor without dropping existing calls R5??
12. Alternate speech/fax support. ??
OMC
---
1. Limited help on OMC, no context sensitive help. R4.0 (fixed)
2. Change site names etc. without deleting/recreating a site on OMC. R2.0
3. Performance Management on OMC R5?
4. Q3 interface from OMC to high level NMS ??
5. OMC on HP Server Platform R4?
6. OMC on PC Client R5
(NOTE: PART FUNCTIONALITY IS DESIRED ON R4; FEATURE IS ON THE R5 RELEASE PLAN)
00
XXXXXXXX X TO EXHIBIT "A"
PCS 1900 BSS HIGH LEVEL MARKET REQUIREMENTS
1. GENERAL
The purpose of this paper is to define the high level market requirements for an
initial release of PCS 1900 BSS equipment. The PCS 1900 equipment (hardware and
software) shall in general have the same functionality as the corresponding DCS
1800 products at the same time. As such this paper describes only the
differences required for the PCS 1900 BSS products.
2. 0000 XXX XXXXXXXXX BAND
The PCS 1900 BSS shall use the 1900 MHz frequency band, namely 1850 to 1910 MHz
for uplink, MS to BTS and 1930 to 1990 MHz for downlink, BTS to MS, channel
numbers 512 to 812 inclusive. All equipment shall operate over the full
frequency band and be compliant and tested to JTC PCS Air interface
Specification, PN3389.
The transmitter shall meet the FCC Code of Federal Regulations, volume 47,
section 24.238. titled - `emission limits' which defines the performance at the
band edge.
3. TRANSCODING
The system shall support the GSM/JTC approved Enhanced Full Rate (EFR) vocoder
as well as the standard Full Rate (FR) vocoder. Both coders will be required to
operate for any TRX and TRAU timeslot at any time and shall allow handover from
FR to EFR and vice versa.
The design shall (if possible) enable a software upgrade to support another
speech coder at a later date.
Due to the T1 interface only supporting 24 64 kbit/s timeslots less DSP/TRAU
boards may be needed on the T1 board for the Abis interface at the BSC.
4. T1 INTERFACE
The interface between BTS and BSC (Abis interface) and between BSC and MSC (A
interface) shall be 1.544 Mbit/s T1 format. This shall be compliant with ITU T
G.703, ANSI T1.403-1995 and all other appropriate standards.
The interface shall be configurable to support standard super frame (SF) or
extended super frame (ESF) formats, and shall use B8ZS line coding for 64 kbit/s
clear channel capability. The line build out shall be automatically set based on
the level received from the transmission network.
All the ESF CSU/DSU functions shall be supported. This includes local and remote
loopbacks and all performance measurement statistics.
Synchronization to the T1 incoming signal needs consideration due to the
extensive use of SONET networks for delivery of T1 services which may cause
disruptions after pointer alignment changes.
5. A INTERFACE
The A interface signaling shall use ANSI based protocol stack (MTP and SCCP) for
connection of the BSC to a MSC.
Voice traffic on the A interface shall use mu-law encoding.
6. 3 DIGIT MNC
The PCS 1900 BSS shall support the use of both a 2 or 3 digit MNC.
19
7. ENVIRONMENTAL
Full NEBS (GR 63) compliance will be required for any equipment that may be
placed in any of the AT+T or RBOC central office sites. Special attention should
be made to the burn, brush fire and seismic tests and lightning protection on T1
lines for all equipment and seismic tests for indoor equipment. The bullet
proofing is not required but any outdoor equipment should be tested to verify
what can be achieved.
Outdoor equipment shall meet TA-NWT-487 but for an operating ambient temperature
of -30 to +45 degC plus a solar load of 1120 W/sq.M..
All equipment shall also meet all national and other local standards in the
U.S. and Canada.
8. OMC-R
All workstations shall use the US country kit.
The OMC-R server shall use a T1 interface (as per section 4) to a MSC or BSC for
communication with the BSS.
The OMC-R shall provide full support of all the above functionality changes.
9. CRAFT
The craft interface shall provide full support of all the above changes.
10. QUALIFICATION
- FCC part 15, part 47 and part 00
- XX
- XXX, XX 0000
- Xxxxxxxx XX 63 NEBS, GR1089 and TA-NWT-487
- Health and safety
- CSA
- Environmental, EMC etc.
11. LABELING
The equipment shall comply with all national and local labeling requirements in
the U.S. and Canada.
12. WAIVERS
The following are areas of waivers that may be acceptable if the fully compliant
solution is overly complex, expensive or will take too long to develop.
- If the full band solution is overly complex or expensive to implement
it may be acceptable to change this so that two versions of the RF
distribution card in the Wavexpress exist creating a split band. The
target frequency coverage for the two version shall be:
High Band Uplink - 1864 to 1910 MHz Downlink- 1944 to 1990 MHz
Low Band: Uplink - 1850 to 1896 MHz Downlink- 1930 to 1976 MHz
- 2 TRX Wavexpress instead of 3 TRX?
20
EXHIBIT B
TERRITORY AND ACCOUNTS
The following countries and accounts shall be specifically targeted by ADC and
lnterWave for a two year period (ending on September 30, 1999) under an
exclusive right to market and sell arrangement for the InterWave products which
are identified in Exhibit A.
-------------------------------------------------------------------------------------------------------------------
ADC EXCLUSIVE INTERWAVE EXCLUSIVE
---------------------------------------------------- --------------------------------------------------------------
China Asean (Thailand, Vietnam, Malaysia, Philippines,
United Kingdom Indonesia, Singapore)
France (except for France Telecom) Taiwan
Italy Hong Kong
Germany Myanmar
Spain India
Optus in Australia Pakistan
Australia (except Optus)
Saudi Arabia
Syria
Egypt
Algeria
Yemen
Jordan
France Telecom in France
ADC will have for a period of 3 months starting October 1, 1997 to identify to
InterWave other areas of exclusivity for inclusion in this document. For all
other areas, ADC will have the non-exclusive rights to market the Product
worldwide subject to the terms and conditions set forth herein.
21
AMENDMENT NO. 2 TO PURCHASE/RE-SALE AGREEMENT
This AMENDMENT NO. 2 TO PURCHASE/RESALE AGREEMENT (the
"Amendment") is made and entered into this ___ day of March, 1998, by and
between interWAVE Communications B.V., a company organized under the laws
of The Netherlands ("interWAVE"), and ADC Telecommunications, Inc., a Minnesota
corporation ("ADC").
RECITALS
A. The parties hereto are party to that certain Purchase/Resale Agreement dated
February 27, 1997, as amended by that certain Amendment # 1 dated October 14,
1997 (the "Amendment"), and as supplemented by that certain Frame Contract dated
October 14, 1997 (the "Frame Contract") (collectively referred to as the
"Agreement").
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants, representations, warranties, conditions and agreements herein
contained, the parties hereto hereby agree as follows:
1) MODIFY SECTION 5.2.4 OF AMENDMENT NO. 1 AS FOLLOWS:
Remove the phrase "Additionally, INTERWAVE shall obtain ADC's approval prior to
the consummation of any OEM relationship that INTERWAVE wishes to enter into
other than this Agreement; this approval shall not be unreasonably withheld."
And replace with "Additionally, INTERWAVE shall notify ADC prior to the
consummation of any OEM relationship that INTERWAVE wishes to enter into other
than this Agreement. This notice will be provided thirty (30) days in advance of
any public announcement of INTERWAVE entering into an OEM relationship"
2) Modify section 13.6 by adding the following:
"ADC will be allowed to badge the INTERWAVE products with ADC's logo in place
of the INTERWAVE logo. Should ADC elect to exercise this option, ADC will
notify INTERWAVE thirty (30) days prior to shipment of such product."
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the
day and year first above written.
interWAVE Communications B.V. ADC Telecommunications, Inc.
By: /s/ By: /s/
--------------------------------- --------------------------------
Title: Chairman, CEO & President Title: Senior Vice President
------------------------------ -----------------------------
Date: 3/30/98 Date: 3/30/98
------------------------------ -----------------------------
AMENDMENT NO. 3 TO PURCHASE/RESALE AGREEMENT
This AMENDMENT NO. 3 TO PURCHASE/RESALE AGREEMENT (the "Amendment") is
made and entered into this 4th day of September, 1998, by and between interWAVE
Communications B.V., a company organized under the laws of The Netherlands
("interWAVE"), and ADC Telecommunications, Inc., a Minnesota corporation
("ADC").
RECITALS
A. The parties hereto are party to that certain Purchase/Resale
Agreement dated 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 "Agreement").
B. The parties now desire to amend the Agreement to revise certain
terms and conditions thereof.
C. Unless specifically defined herein, all capitalized terms shall have
the meanings ascribed to them in the Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants and agreements herein contained, and for good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto hereby agree as follows:
1. AMENDMENT TO SECTION 1 (c). Section 1 (c) of the Agreement is hereby
deleted in its entirety and replaced with new Sections 1 (c), (d), (e), (f), (g)
and (h) as follows:
"(c) NATURE OF AGREEMENT. The Products delivered by INTERWAVE
that are covered by this Agreement include both hardware components (the
"Hardware") and computer software (the "Software"). Hardware and Software
hereinafter shall be referred to collectively as Products, although it is
understood ADC is not purchasing the Software, but instead is being granted the
right to use (and further sublicense the use of) the Software in accordance with
the terms and subject to the conditions set forth below. ADC shall not obtain
title to, or any proprietary rights in, such Software, except as expressly
provided below. ADC shall comply strictly with all restrictions on the use of
the Software licensed by INTERWAVE to ADC hereunder and shall require such
compliance by ADC's customers. It is hereby acknowledged and agreed that the
Software and features thereof constitute either the copyrighted property of
INTERWAVE or the proprietary trade secret information of INTERWAVE, or both.
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(d) GRANT OF LICENSE. INTERWAVE hereby grants to ADC, subject
to the performance by ADC of its obligations under this Agreement, a
non-exclusive, non-transferable world-wide license to:
(i) copy the Software onto Read Only Memory chips
("ROMs") or onto diskettes/CDs solely for the purposes of incorporating the
Software into Products, or for supplying such diskettes/CDs to ADC's resellers
or customers in conjunction with sales of Products; and
(ii) make such copies of the Software as are
reasonably necessary for the purpose of back-up and support.
(e) OBLIGATIONS OF INTERWAVE. As soon as practicable
hereafter, INTERWAVE shall deliver to ADC one master copy of the Software by
such means as INTERWAVE shall reasonably prescribe or as the parties shall
agree, so that ADC may copy the Software as permitted by the license granted
under Section 1 (d) above. At ADC's request, INTERWAVE shall provide ADC with
technical support and advice regarding integration of the Software into the
Products as agreed from time to time, at INTERWAVE's then-current rates and upon
INTERWAVE's then-current terms for providing the same.
(f) LIMITATIONS ON LICENSE.
(i) The Software is licensed for use only on Products
supplied by INTERWAVE, and ADC shall not remove any pre-loaded Software or
attempt to execute the Software on any hardware other than the Hardware
purchased by ADC hereunder, with the sole exception of the OMC Software, which
INTERWAVE acknowledges may be run on workstations procured directly from the
vendor so long as such Software and work-stations are run in the overall
INTERWAVE environment. Except as expressly authorized herein, ADC may not copy
the Software or the human-readable features thereof for any purpose without
INTERWAVE's prior written consent.
(ii) ADC shall not attempt to decompile,
reverse-engineer or otherwise disassemble the Software. Information necessary to
achieve interoperability of the Software with independently created computer
programs is available on written request to INTERWAVE and payment to INTERWAVE
of a reasonable fee.
(iii) In no event shall ADC license or deliver to any
customer or third person any source code for the Software, in whole or in part,
without the prior written consent of INTERWAVE. If a customer of ADC insists on
licensing the underlying source code for interoperability and/or maintenance
purposes, ADC shall notify INTERWAVE thereof, and INTERWAVE will consider in
good faith licensing the source code to the Software directly to such customer
on such terms and conditions as INTERWAVE deems appropriate.
(g) RIGHT TO SUBLICENSE. ADC may sublicense the Software to
any subsequent purchaser or ADC reseller of the Products in the Territory for
use solely in connection with the
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Products; provided that: (i) each ADC customer executes an End-User License
Agreement containing terms at least as protective of the licensor as those
contained in Exhibit F attached hereto (the "End-User License"), provided that
INTERWAVE acknowledges that ADC may add to and or modify the terms of the
End-User License so long as the foregoing requirement is met; and (ii) INTERWAVE
is given a copy of the End-User License entered into with each ADC customer
promptly following its execution or any subsequent amendment thereto.
(h) ADC'S OBLIGATIONS. During the term of this Agreement ADC
shall:
(i) use commercially reasonably efforts to enforce
against all resellers or customers that obtain the Products from ADC the
provisions of the End-User License that affect proprietary or confidentiality
rights of INTERWAVE or its licensors in the Products; and
(ii) inform INTERWAVE, immediately upon becoming
aware of the same, of any breach by resellers or end users of the terms of the
End-User License and take, at INTERWAVE's expense, such reasonable steps as
INTERWAVE shall request and otherwise assist INTERWAVE in enforcing the terms of
the End-User License, including, where appropriate, availing itself of actions
for seizure or injunctive relief. If ADC fails to take these steps in a timely
and adequate manner, INTERWAVE or its licensors may take them in its own or
ADC's name."
2. AMENDMENT TO EXHIBIT F. From and after the date hereof, Exhibit F to
the Agreement is hereby deleted in its entirety and replaced with a new Exhibit
F in the form attached hereto.
3. AMENDMENT TO SECTION 4.1. Section 4.1 is hereby deleted in its
entirety and replaced with the following:
"4.1 LIMITED WARRANTY. INTERWAVE hereby warrants to ADC that the
Software will perform in all material respects in accordance with the
then-current published documentation for a period of twelve (12) months from the
date of shipment to ADC's customer (hereinafter referred to as the "Warranty
Period"). During the Warranty Period, INTERWAVE shall take all reasonable steps
without charge to correct errors or defects in any Software and any corrections
for errors or defects shall be provided to ADC directly and/or incorporated in
subsequent updates to the Software from INTERWAVE. Such corrections may be used
and distributed by ADC as permitted by Section 1 of this Agreement. INTERWAVE
MAKES NO WARRANTS OR REPRESENTATIONS AS TO PERFORMANCE OF PRODUCTS OR AS TO
SERVICE TO ADC OR TO ANY OTHER PERSON, EXCEPT AS SET FORTH IN THIS SECTION 4.1
AND IN INTERWAVE'S LIMITED WARRANTY ATTACHED HERETO AS EXHIBIT E. INTERWAVE MAY
PROVIDE A DIFFERENT WARRANTY ON NEW PRODUCTS OR SERVICES ADDED TO APPENDIX A."
4. NEW SECTION 4.2. A new Section 4.2 is hereby added to the Agreement
as follows:
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"4.2 NO CONSEQUENTIAL DAMAGES. UNDER NO CIRCUMSTANCES SHALL INTERWAVE
OR ITS AFFILIATES BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE,
OR INCIDENTAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, BASED ON CLAIMS OF
ADC OR ITS CUSTOMERS (INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR LOSS OF DATA,
GOODWILL, PROFITS, USE OF MONEY OR USE OF THE PRODUCTS, INTERRUPTION IN USE OR A
VAILABILITY OF DATA, STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS),
ARISING OUT OF BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY, BREACH OF
CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE,
EXCEPT ONLY IN THE CASE OF DEATH OR PERSONAL INJURY WHERE AND TO THE EXTENT THAT
APPLICABLE LAW REQUIRES SUCH LIABILITY. IN NO EVENT SHALL THE AGGREGATE
LIABILITY WHICH INTERWAVE AND ITS AFFILIATES MAY INCUR IN ANY ACTION OR
PROCEEDING EXCEED THE TOTAL AMOUNT ACTUALLY PAID TO INTERWAVE BY ADC FOR THE
SPECIFIC PRODUCT THAT DIRECTLY CAUSED THE DAMAGE."
5. DELETION OF SECTION 5.1.8. Section 5.1.8 is hereby deleted in its
entirety.
6. DELETION OF SECTION 12.3. Section 12.3 is hereby deleted in its
entirety.
7. Amendment of Section 18.1. Section 18.1 of the Agreement is hereby
deleted in its entirety and replaced with a new Section 18.1 as follows:
"This Agreement may not be assigned or transferred by either party
without the other party's written consent, which consent must be executed by an
authorized official of such party."
8. AMENDMENT TO SECTION 25. The first sentence of Section 25 of the
Agreement is hereby deleted in its entirety and replaced with the following
sentence:
"This Agreement together with Exhibits "A" (including Appendix
A, B and D thereof), "B" (as amended by Amendment No. 2), "C," "D," "E," "F,"
"G," "H," "I," and "J" and any addendum thereto, as amended by Amendment Xx. 0,
Xxxxxxxxx Xx. 0 and Amendment No. 3, and as supplemented by the Frame Contract,
supersedes and cancels any previous understanding or Agreements between the
parties relating to the subject matter hereof."
9. CONTINUED EFFECT OF AGREEMENT. All provisions of the Agreement,
except as expressly modified by this Amendment, shall remain in full force and
effect and are hereby reaffirmed by the parties. In the event of any conflict
between the Agreement and this Amendment, the provisions of this Amendment shall
govern and control.
10. ENTIRE AGREEMENTS, AMENDMENTS. This Amendment and the Agreement
contain the entire understanding of the parties with regard to the subject
matter contained herein or therein and supersede all prior agreements or
understanding between or among any of the
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Partners with respect thereto. This Amendment shall not be amended, modified or
supplemented except by a written instrument signed by an authorized
representative of each of the parties hereto.
11. GOVERNING LAW. This Amendment shall be governed by and construed in
accordance with the laws of the State of California.
12. EXECUTION IN COUNTERPARTS. This Amendment may be executed in one or
more counterparts, each of which shall be considered an original instrument, but
all of which shall be considered one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the day and year first above written.
interWAVE Communications B.V. ADC Telecommunications, Inc.
By: By: /s/ Xxxx Xxxxx
-------------------------------- --------------------------------
Name: Name: Xxxx Xxxxx
------------------------------ ------------------------------
Title: Title: Sr. Vice President
----------------------------- -----------------------------
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EXHIBIT "F"
MANDATORY TERMS OF END-USER LICENSE AGREEMENT
ADC hereby grants to Customer, and Customer hereby accepts from ADC, an
indefinite, non-exclusive and non-transferable right to use the software
described in Section 1 below (the "Software") on the hardware described in
Section 2 below (the "Hardware"), subject to the terms and conditions specified
below (the "License").
1. SOFTWARE
"Software" means (i) the machine-readable object code version of the computer
programs described in the Product Schedule, whether embedded on disc, tape or
other media (the "Programs"); (ii) the user manuals and documentation for the
Programs that are provided to the Customer (the "Documentation"); (iii) the
fixes, customizations or revisions of the Programs or Documentation that are
provided to Customer (the "Enhancements"); and (iv) any copy of the Programs,
Documentation or Enhancements. Nothing in this License shall entitle Customer to
receive the source code of the Programs or Enhancements, in whole or in part.
2. HARDWARE
"Hardware" means the hardware equipment configuration identified in the
Product Schedule on which the Software is first installed or for which it is
first provided. Customer may use the Programs and Enhancements only on the
Hardware while it possesses and operates the Hardware. Any other use or
transfer of the Programs or Enhancements requires ADC's prior approval, which
may be subject to additional charges.
3. USE
Customer may use the Software only in and for Customer's own internal purposes
and business operations. Customer shall not permit any other person to use the
Software, whether on a timesharing, remote entry or other multiple user
arrangement. Customer may not copy any of the Documentation except for internal
use. Customer may copy the Programs and Enhancements solely for archival and
back-up purposes. Customer shall reproduce all confidentiality and proprietary
notices on each of these copies and maintain an accurate record of the location
of each copy the Programs or Enhancements. Customer may not otherwise copy,
translate, modify, adapt, decompile, disassemble or reverse engineer the
Software, except as and to the extent specifically permitted under applicable
law.
4. CONFIDENTIALITY
Customer acknowledges that the Software embodies confidential and proprietary
information developed or acquired by or licensed to interWAVE Communications
International, B.V., a company organized under the laws of The Netherlands
("interWAVE"). Customer shall take all reasonable precautions necessary to
safeguard the confidentiality of the Software, including (i)
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those taken by Customer to protect Customer's own confidential information and
(ii) those which ADC may reasonably request from time to time. Customer shall
not allow the removal or defacement of any confidentiality or proprietary notice
placed on the Software. If an unauthorized use or disclosure occurs, Customer
shall immediately notify ADC and take, at Customer's expense, all steps which
may be available to recover the Software and to prevent their subsequent
unauthorized use or dissemination. Customer shall have no confidentiality
obligation with respect to any portion of the Software that (i) Customer
independently developed before receiving the Software from ADC, (ii) Customer
lawfully obtained from a third party under no confidentiality obligation or
(iii) became available to the public other than as a result of an act or
omission by Customer or any of its employees or consultants.
5. OWNERSHIP
All patents, copyrights, trademarks, service marks, trade secrets and other
proprietary rights in or related to the Software are and shall remain the
exclusive property of ADC or its licensors, whether or not specifically
recognized or perfected under local applicable law. Customer shall not take any
action that jeopardizes ADC's or its licensors' proprietary rights or acquire
any right in the Software, except the limited use rights specified in this
License. ADC or its licensors shall own all rights in any copy, translation,
modification or adaptation of, or derivative work based on, the Software.
Customer shall obtain, at ADC's request, the execution of any instrument that
may be appropriate to assign these rights to ADC or its licensors or perfect
these rights in ADC's or its licensor's name.
6. INFRINGEMENT
If an action is brought against Customer claiming that the Software supplied by
ADC infringes a patent, copyright, trade secret or trade xxxx within the country
of installation (the "Territory"), ADC shall defend Customer, but only if: (i)
Customer notifies ADC promptly upon learning that the claim might be asserted;
(ii) ADC has sole control over the defense of the claim and any negotiation for
its settlement or compromise; and (iii) Customer takes no action that, in ADC's
reasonable judgment, is contrary to ADC's interest. If a claim described in this
Section may be or has been asserted, Customer shall permit ADC or its licensors,
at ADC's option, to: (i) procure the right to continue using the Software; (ii)
replace or modify the Software to eliminate the infringement while providing
functionally equivalent performance; or (iii) accept the return of the Software
and refund to Customer the amount actually paid to ADC for such Software, less
depreciation based on a 5-year straight-line depreciation schedule. ADC shall
have no indemnity obligation to Customer under this Section if the infringement
claim results from: (i) a correction or modification of the Software not
provided by ADC; (ii) the failure to promptly install an Enhancement; or (iii)
the combination of the Software with other items not provided by ADC.
7. DISCLAIMER
Customer acknowledges that the warranties, conditions, guarantees or
representations granted with respect to the Software, if any, are or shall be
binding only on ADC. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER ADC NOR ITS
LICENSORS GRANT
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CUSTOMER ANY WARRANTY, GUARANTEE, CONDITION OR REPRESENTATION WITH RESPECT TO
THE SOFTWARE, AND ADC AND ITS LICENSORS DISCLAIM ALL IMPLIED WARRANTIES,
INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR
FITNESS FOR PARTICULAR PURPOSE. Any claim for breach of warranty, guarantee,
condition or representation, whether express or implied, may be brought solely
against ADC, except only as and to the extent otherwise specifically permitted
under applicable law, despite the foregoing disclaimer.
8. EXCLUSION AND LIMITATION
UNDER NO CIRCUMSTANCES SHALL ADC OR ITS LICENSORS BE LIABLE FOR ANY
CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES OR LOST
PROFITS, WHETHER FORESEEABLE OR UNFORESEEABLE, BASED ON CUSTOMER'S CLAIMS OR
THOSE OF ITS CUSTOMERS (INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR LOSS OF DATA,
GOODWILL, USE OF MONEY OR USE OF THE PRODUCTS, INTERRUPTION IN USE OR
AVAILABILITY OF DATA, STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS),
ARISING OUT OF BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY, BREACH OF
CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE.
IN NO EVENT SHALL THE AGGREGATE LIABILITY WHICH ADC OR ITS LICENSORS MAY INCUR
IN ANY ACTION OR PROCEEDING EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY CUSTOMER
FOR THE SPECIFIC ITEM THAT DIRECTLY CAUSED THE DAMAGE. THIS SECTION SHALL NOT
APPLY ONLY WHEN AND TO THE EXTENT THAT APPLICABLE LAW SPECIFICALLY REQUIRES
LIABILITY, DESPITE THE FOREGOING EXCLUSION AND LIMITATION.
9. TERMINATION
ADC may terminate this License, upon reasonable notice and without judicial or
administrative resolution, if (i) Customer or any of its employees or
consultants breach any term or condition hereof, (ii) Customer permanently
discontinues the use of the Software, or (iii) Customer becomes insolvent or
enters into bankruptcy, suspension of payments, moratorium, reorganization or
any other proceeding that relates to insolvency or protection of creditors'
rights. Upon the termination of this License for any reason, all rights granted
to Customer hereunder shall cease, and Customer shall promptly: (i) purge the
Programs and Enhancements from the Hardware and all of Customer's other computer
systems, storage media and other files; (ii) destroy the Software and all copies
thereof; and (iii) deliver to ADC an affidavit which certifies that Customer
have complied with these termination obligations. The provisions of Sections 4,
5, 7, 8 and 10 shall survive the termination of this License.
10. U.S. EXPORT RESTRICTIONS
Customer acknowledges that the Software and all related technical data are
subject to export controls under the U.S. Export Administration Regulations.
Customer may not re-export or disclose the Software or any related technical
data, or any direct product thereof, unless
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Customer has obtained an appropriate authorization from ADC, its licensors and
the U.S. Commerce Department.
11. INSPECTION
During the term of this License, ADC or its designees may, upon prior notice to
Customer, inspect the files, computer processors, equipment and facilities of
Customer during normal working hours to verify Customer's compliance with this
License. While conducting such inspection, ADC or its designees shall be
entitled to copy any item that Customer may possess in violation of this
License.
12. BENEFICIARIES
The provisions of this License are intended to inure to the benefit of ADC, its
licensors and their related persons. If Customer breaches any of these
provisions, ADC and its licensors shall be entitled to enforce this License
directly against Customer, whether in ADC's or its licensors' own names.
Customer acknowledges that ADC executes the document setting forth this License
as principal on its own behalf and, exclusively to accept or otherwise perfect
its licensors' rights against Customer, as agent on behalf of such licensors.
13. ASSIGNMENT
Customer shall not assign, delegate or otherwise transfer this License or any of
its rights or obligations hereunder, in whole or in part, without ADC's prior
approval. ADC may in its sole discretion assign, delegate or otherwise transfer
this License or an of its rights or obligations hereunder, in whole or in part,
without Customer's prior approval.
14. DISPUTE RESOLUTION
Either party may, without inconsistency with this Agreement, seek from a court
of competent jurisdiction any interim or provisional relief that may be
necessary to protect the rights or property of that party, pending the
establishment of the arbitral tribunal or pending the arbitral tribunal's
determination of the merits of the controversy.
15. MISCELLANEOUS
Any waiver or modification of this License shall not be effective unless
executed in writing and signed by ADC. This License shall bind Customer's
successors-in-interest. If any provision of this License is held to be
unenforceable, in whole or in part, such holding shall not affect the validity
of the other provisions of this License, unless ADC in good xxxxx xxxxx the
unenforceable provision to be essential, in which case ADC may terminate this
License effective immediately upon notice to Customer. No failure or delay on
the part of ADC to exercise any right or remedy specified herein shall be
construed as a waiver of such right or remedy. This License constitutes the
complete and entire statement of all conditions and representations with respect
to its subject matter and supersedes all prior writings or understandings.
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