Note: Portions of this exhibit indicated by "[*]" are subject to a confidential
treatment request, and have been omitted from this exhibit. Complete, unredacted
copies of this exhibit have been filed with the Securities and Exchange
Commission as part of this Company's confidential treatment request.
Exhibit 10.24
-------------
RESELLER AGREEMENT
------------------
This Reseller Agreement (the "Agreement") is made effective as of the 21st
day of September, 2000 (the "Effective Date"), by and between Airspan
Communications Ltd., a company incorporated under the laws of England and Wales,
with registered number 3501881 and with its registered office at Xxxxxxxxx
Xxxxx, Xxxxxx Xxxx, Xxxxxxxx, XX0 0XX, Xxxxxxx ("ACL"), and Titan Wireless Inc.,
a company organised under the laws of the state of Delaware located in the
United States of America, with its principal office at 0000 Xxxxxxx Xxxx Xxxx,
Xxx Xxxxx, XX 00000, X.X.X. ("Titan").
WITNESSETH:
WHEREAS, ACL is engaged in the design and manufacture of various
telecommunications product lines including, among others, those ACL products
more completely described in Schedule I hereto (the ACL products described in
Schedule I, as from time to time amended in accordance with the provisions of
this Agreement, are hereinafter called the "ACL Products," the hardware
components thereof are sometimes referred to separately as "Equipment," the
software components thereof are sometimes referred to separately as "Software"
as defined in Section 12.1, and an arrangement of Equipment which, when
interfaced with Software, is operable to perform predetermined functions, is
referred to as a "System").
WHEREAS, Titan is engaged in the development, manufacture, sale and resale
of telecommunications products; and
WHEREAS, ACL desires to appoint Titan as its non-exclusive reseller for the
ACL Products for the territory described in Schedule II hereto (the
"Territory").
AGREED TERMS:
NOW, THEREFORE, in consideration of the mutual promises herein contained,
it is hereby agreed as follows:
1. APPOINTMENT AS AUTHORIZED RESELLER.
----------------------------------
1.1 ACL hereby appoints Titan Wireless Inc. as a non-exclusive independent
reseller to resell the ACL Products in the Territory, and Titan hereby accepts
such appointment as of the Effective Date of this Agreement.
1.2 Titan's appointment as a distributor of the ACL Products grants to
Titan only a license to resell the ACL Products to Titan's customers in the
Territory, and does not transfer any right, title, or interest in any of the ACL
Products to Titan.
2. RELATIONSHIP OF THE PARTIES. The relationship between ACL and Titan is
---------------------------
solely that of buyer and seller. Titan is an INDEPENDENT CONTRACTOR and is, in
no way, ACL's sales representative, legal representative, or agent. Titan HAS NO
AUTHORITY TO ASSUME OR CREATE ANY OBLIGATION ON ACL'S BEHALF, EXPRESS OR
IMPLIED, WITH RESPECT TO ACL PRODUCTS OR OTHERWISE. Titan agrees not to make any
representation, guarantee, or warranty, except for those warranties provided for
under Sections 14.5, 14.6, and 14.7 on ACL's behalf, but will refer purchasers
and prospective purchasers to ACL's printed sales literature. Titan will not
represent itself as ACL's agent or act in any way which might imply that ACL and
Titan are not separate and distinct entities. Nothing contained in this
Agreement is to be construed as a limitation or restriction upon ACL in the sale
or other disposition of any of its products to any person, firm, or corporation
either inside or outside of the Territory. ACL will pay no commissions under
this Agreement. Titan's compensation is to be obtained solely by the difference
between the price Titan pays to ACL and the price Titan charges its customers.
The parties also acknowledge that this Agreement is not intended to create a
joint venture or partnership between ACL and Titan.
3. SALES AND SUPPORT OBLIGATIONS OF Titan.
--------------------------------------
3.2 Titan will use its best efforts to vigorously and aggressively
promote the sale of ACL Products within the Territory. Such efforts may
include, but shall not be limited to, that advertising within the
Territory which is reasonably necessary, but Titan will not be obligated
to advertise in the Territory. Any such advertising shall follow the
general statements made in advertising prepared by ACL. All advertising
shall contain a prominent reference to ACL, indicating the actual
commercial origin of ACL Products so advertised. Titan shall not make
any claims in its advertising which exceed or contradict claims made by
ACL in its printed materials.
3.3 Titan will train and maintain a sufficient number of technical and
sales personnel in order to: (a) serve the demands and needs of its
customers for ACL Products, service, and support; and (b) carry out the
obligations of Titan under this Agreement.
3.11 Titan and its staff will be conversant with the technical language
related to ACL Products and will develop sufficient knowledge of the
industry, ACL Products, and products competitive with ACL Products
(including specifications, features, and benefits) so as to be able to
explain in detail to customers the differences between ACL Products and
competitive products. Titan will conduct or provide for any training of
its personnel which may be necessary to impart such knowledge.
3.12 Titan and its staff will research the technical requirements and
specifications of the market for ACL Products in the Territory and make
information known to ACL such that ACL may, at its discretion, implement
appropriate technical changes to the Products to enable them to be sold
in the Territory. ACL acknowledges that, subject to a further and
separate Agreement, such changes may be implemented in the future by
ACL.
3.13 Titan agrees to purchase and stock a comprehensive inventory of
spare parts based upon the recommended list set forth in Schedule III to
this Agreement.
3.14 Titan agrees to provide to its customers installation services for
all ACL Products. All such installation services shall be performed by
Titan in accordance with ACL's latest installation standards as provided
by ACL.
3.15 Titan agrees to train and have readily available a maintenance staff
to efficiently and expeditiously maintain or upgrade all ACL Products
purchased or licensed by Titan from ACL. Maintenance shall be performed
in accordance with ACL's latest maintenance standards for ACL Products,
as provided by ACL, by Titan's own personnel and may not be
subcontracted or delegated to any other person or entity without ACL's
prior, written authorisation.
3.16 Titan agrees to provide and maintain those facilities adequate to
meet the obligations set forth in this section and of the Agreement.
Titan further agrees to provide all of the sales and support functions
set forth in this section at no charge to ACL.
3.17 Titan agrees not to actively seek to promote, rent, lease, sell,
sublicense or authorise the rental, sale or sublicense of ACL Products
outside of the Territory [without the prior written approval of ACL],
but nothing in this Agreement shall prevent Titan from renting, selling
or sublicensing the ACL Products to customers outside of the Territory
in response to an unsolicited request from such customer.
3.18 During the term of this Agreement Titan agrees that neither it nor
any organisation or entity of which Titan owns a majority will, without
ACL's prior, written consent, represent a manufacturer or supplier of
products similar in design or performance to or which are of such a
nature as to be competitive with any products contained in Schedule I to
this Agreement. However, if Titan or any organisation or entity of which
Titan owns a majority does acquire an interest in such a manufacturer or
supplier during the term of this Agreement, it shall immediately notify
ACL of this in writing and ACL shall have the option to terminate this
Agreement by giving Titan notice in writing. During the term of this
Agreement, Titan will notify ACL in writing of all opportunities that it
is aware of in the Territory that could utilise the ACL Products.
However, when licensing and related concerns dictate the use of
equipment in frequency bands where ACL equipment does not operate, Titan
is free to use other equipment.
4. RECORDS AND REPORTING.
---------------------
4.1.1 Within fifteen (15) days of the end of each quarter, commencing
on the Effective Date, Titan will provide to ACL a written report showing: (a) a
twelve (12) month rolling forecast of Titan's anticipated orders for base
stations and subscriber terminals during each three (3) month period (the
"Forecast"); and (b) any other information which ACL may reasonably request and
Titan reasonably
agrees to provide. Titan will provide the first Forecast to ACL covering the
first twelve (12) months of the Agreement within sixty (60) days of the
Effective Date.
4.1.2 By the Effective Date, Titan shall issue a non-cancellable purchase
order(s) to ACL for three (3) systems. At least two (2) of these systems will be
shipped by ACL during September 2000. The third system requires internal
approval by Titan, such approval to be completed by 30 September 2000. ACL will
ship the third system within thirty (30) days of Titan's internal approval.
Titan may amend the configuration of the third system by giving ACL notice in
writing provided that the aggregate value of the third system (i.e. the
discounted price) exceeds two hundred thousand US Dollars (USD200,000). In the
event that the business case for the third system is not approved by Titan by 30
September 2000, Titan shall in any event pay for the third system in full by 31
December 2000.
4.1.3 The level-2 discount set forth in Schedule IV shall apply to all
non-cancellable purchase orders placed by Titan for shipment by ACL within
twelve (12) months of the Effective Date.
4.1.4 For non-cancellable purchase orders placed by Titan for shipment
during the second year or the Agreement, the price to be invoiced will be
calculated based upon the discount level determined using Titan's Forecast
issued at the beginning of the second year of the Agreement. However, if Titan
fails to accomplish its Forecast for the second year of the Agreement, ACL may,
for products shipped during the second year of the Agreement, invoice Titan for
the lesser of:
. the difference between the actual amount invoiced and the price of such ACL
Products calculated using the discount level corresponding to the aggregate
value of ACL Products shipped during the second year of the Agreement; and
. twenty percent (20%) of the actual amount invoiced.
Titan shall pay such invoice within net thirty (30) days of the invoice date.
The values referred to above will be calculated using the prices and applicable
discounts set forth in Schedule IV that are used for invoicing shipped ACL
Products.
4.2 Titan will promptly advise ACL concerning any market information that
comes to Titan's attention regarding ACL, ACL Products, ACL's market position,
or the continued competitiveness of ACL Products in the marketplace. Titan will
confer with ACL from time to time, at ACL's request, on matters relating to
market conditions, distribution, forecasting, and product planning.
4.3 For at least two (2) years after termination of this Agreement, Titan
will maintain its records, contracts, and accounts relating to distribution of
ACL Products, and will permit examination thereof by authorised representatives,
mutually agreed upon between Titan and ACL, such agreement not to be
unreasonably withheld or delayed, of ACL at all reasonable times.
5. PRICES AND PAYMENT TERMS.
------------------------
5.1 The Contract Price for each item of Equipment or Software is as
specified in Schedule IV and shall be paid to ACL in Dollars of the United
States of America. The Contract Price includes:
a. The price of the Equipment;
b. The fee for the licensing of the Software;
c. The charges for the warranty of the Equipment and Software in
accordance with Section 14; and
d. Transportation charges in accordance with ACL's delivery
obligations set forth in Section 7.
5.2 The Contract Price shall not include any government levied sales, use,
value added, or other taxes, customs duties, or similar tariffs and fees which
ACL may be required to pay or collect upon the delivery of ACL Products or in
furtherance of this Agreement. Should any tax or levy be made, Titan agrees to
pay or reimburse such tax or levy demanded. Titan represents and warrants to ACL
that all ACL Products acquired hereunder are for redistribution in the ordinary
course of Titan's business, and Titan agrees to provide ACL with appropriate
resale certificate numbers and other documentation satisfactory to the
applicable taxing authorities to substantiate any claim of exemption from any
such taxes or fees. Notwithstanding anything herein to the contrary, in no event
shall Titan be required to pay any tax assessed on ACL's income.
5.3 If a purchase order is accepted by ACL, ACL will issue a proforma
invoice for review by Titan and also an invoice (the "Invoice") to Titan within
fifteen (15) business days of ACL's shipment to the delivery point. The Invoice
specifically shall identify the Equipment and Software delivered, and the
Contract Price of such items. The Invoice also shall state the total due to ACL
from Titan (the "Invoice Total"), which shall include the Contract Price, and
any applicable taxes, duties, and other fees due pursuant to Section 5.2 of this
Agreement.
5.4 Payment in full shall be made against the relevant ACL invoice(s). All
invoices are due Net 30 days. For purposes of this Section 5.4 only, full
payment will be deemed to have been made upon receipt of funds in ACL's bank.
All payments shall be made in United States dollars, free of any withholding tax
and of any currency controls or other restrictions. ACL reserves the right to
charge interest at prevailing rates on any payment not received seven (7) days
after the date the invoice is due for payment.
5.5 The payment instructions are:
Bank: Lloyds Bank plc
Woking Branch
00 Xxxxxxxxxx Xxx
Xxxxxx
Xxxxxx, XX00 0XX
Xxxxxx Xxxxxxx
Sort Code: 30 99 80
Credit: Airspan Communications Ltd
Account No: 00000000
Further Instructions: Reference 1) (Titan) P.O. No. _______,
and 2) ACL Invoice No. _________."
6. ORDER PROCEDURE.
---------------
6.1 All purchase orders for ACL Products by Titan shall be subject to
acceptance in writing by ACL at ACL's principal place of business, and shall not
be binding until such acceptance.
6.2 The terms and conditions of this Agreement will apply to and be deemed
to be incorporated into each purchase order received from Titan to the exclusion
of all other terms and conditions on the back or on the face of such purchase
order with the exception only of provisions expressly set out on the face of the
purchase order referring to the Agreement. In the event of any conflict or
inconsistency between the terms and conditions of this Agreement and of any
purchase order issued by Titan hereunder, or if the purchase order does not
reference the terms and conditions of this Agreement, the terms and conditions
of this Agreement shall prevail unless otherwise agreed in writing by the
parties.
6.3 All purchase orders issued by Titan hereunder shall include the
following information: (a) model of ACL Products; (b) requested shipment
date(s); (c) delivery instructions (if no carrier is specified, ACL may, but is
not required to, select a carrier); (d) reference to this Agreement; (e) any
other special information required by this Agreement or dictated by the
circumstances of the order; (f) any other information reasonably requested in
writing by ACL in advance. Purchase orders should be sent to:
Airspan Communications Ltd.
ATTN: Sales Order Processing
Xxxxxxxxx Xxxxx
Xxxxxx Xx
XXXXXXXX
XX0 0XX
Xxxxxxx
Fax: x00 0000 000 000
6.4 ACL reserves the right not to accept any purchase orders issued by
Titan to ACL for ACL's acceptance if Titan: (a) fails to make any payment as
provided in this Agreement or Titan; (b) fails to meet reasonable credit or
financial requirements established by ACL, including any limitations on
allowable credit; or (c) otherwise fails to comply with the terms and conditions
of this Agreement.
7. SHIPMENT, RISK OF LOSS, TITLE, AND DELIVERY.
-------------------------------------------
7.1 All ACL Products will be shipped by ACL FCA, Heathrow International
Airport (as defined in Incoterms). If requested in writing by Titan's purchasing
manager, ACL may arrange for shipment to be made to Titan's identified warehouse
facilities or freight forwarder, subject to approval in writing by ACL in
advance of shipment. Unless specified in Titan's order, ACL will select the mode
of shipment and the carrier. ACL shall package the ACL Products suitable for
airfreight and pay for such packing. Titan will be responsible for and pay all
shipping, freight, and insurance charges, for which charges ACL may require
Titan to pay in advance.
Titan must inform ACL of any loss in transit or damages(s) to the Equipment and
Software, and both parties will co-operate in filing any claims with the carrier
for such loss in transit or damage(s).
In this Agreement, "Incoterms" means the most recent international rules
for the interpretation of trade terms published by the International Chamber of
Commerce as in force at the date when this Agreement is made. Unless the context
otherwise requires, any term or expression which is defined in or given a
particular meaning by the provisions of Incoterms shall have the same meaning in
this Agreement, but if there is any conflict between the provisions of Incoterms
and this Agreement, the former shall prevail.
7.2 All risk of loss or damage to the Equipment and Software, and title to
the Equipment, will pass to Titan upon shipment by ACL to Titan. The Software
shall at all times remain the exclusive property of ACL.
7.3 Unless Titan clearly advises ACL to the contrary on the face of the
purchase order or in writing from Titan's purchasing manager, ACL may not make
partial shipments on account of Titan's orders. Any Titan authorized partial
shipment or Titan approved delay in delivery of any instalment shipment shall
not relieve Titan of its obligation to accept the remaining deliveries.
7.4 ACL will use reasonable efforts to meet Titan's requested delivery
schedules for ACL Products specified in Titan issued and ACL accepted purchase
orders. ACL will notify Titan of any known or anticipated delay reasonably known
by it that will delay the planned shipment date. However, ACL reserves the right
to refuse, cancel, or delay shipment to Titan when Titan's credit is impaired,
when Titan is delinquent in payments or fails to meet other credit or financial
requirements reasonably established by ACL, or when Titan has failed to perform
its obligations under this Agreement. Should orders for ACL Products exceed
ACL's available inventory, ACL will allocate its available inventory and make
deliveries on a basis that ACL deems equitable, in its sole discretion, and
without liability to Titan on account of the method of allocation chosen or its
implementation. In any event, except by prior written agreement, ACL shall not
be liable for any damages (direct, consequential, special, or otherwise) to
Titan or to any other person for failure to deliver or for any delay or error in
delivery of ACL Products for any reason whatsoever.
9. ASSIGNMENT.
----------
Titan is appointed an authorised ACL distributor because of Titan's commitments
in this Agreement and, further, because of ACL's confidence in Titan, which
confidence is personal in nature. This Agreement shall not be assignable by
Titan, and Titan may not delegate its duties hereunder without the prior,
written consent of ACL. Any substantiated assignment or delegation of the whole
or any part of this Agreement by Titan, including to a substantiated sub-
distributor, will be null and void and will be deemed to be a material breach of
this Agreement not subject to cure.
9. DURATION AND TERMINATION OF AGREEMENT.
-------------------------------------
9.1 This Agreement is for a term of twenty-four (24) months from the
Effective Date. Nothing contained herein shall be interpreted as requiring
either party to renew or extend this Agreement, and neither party expects this
Agreement to be renewed. Notwithstanding the provisions of this section or of
any other provisions of this Agreement, this Agreement may be terminated prior
to the expiration of its stated term as set forth below.
9.2 This Agreement may be terminated by ACL for good cause if Titan: (a)
fails to pay for ACL Products when payment is due in accordance with this
Agreement; or (b) fails to promptly secure or renew any license, registration,
permit, authorisation or approval for the conduct of its business in the manner
contemplated by this Agreement or if any such license, registration, permit,
authorisation or approval is revoked or suspended and not reinstated within
thirty (30) days; or (c) is merged, consolidated, or sells all or substantially
all of its assets, or implements or suffers any substantial change in management
or control; or (d) fails to comply with any other material covenant, term, or
provision of this Agreement; or (e) if ACL is advised by any of its End Users in
the Territory of their dissatisfaction with the performance of Titan and such
dissatisfaction is deemed to be not due to a Force Majeure. If Titan's failure
to comply as contemplated in Section 9.2(d) is capable of cure, ACL's right to
terminate this Agreement under Section 9.2(d) may not be exercised unless ACL
shall have given Titan thirty (30)) days' prior written notice of the failure,
or ten (10) days notice in the failure is late payment, and Titan has not cured
the failure within the thirty (30) or ten (10) day period following written
notice from ACL. If Titan's failure to comply is not capable of cure, ACL may
terminate this Agreement immediately upon giving Titan written notice of
termination.
9.3 This Agreement terminates automatically for just cause, with no
further act or action of either party, if: (a) a receiver is appointed for Titan
or its property; (b) Titan makes an assignment for the benefit of its creditors;
(c) any proceedings are commenced by, for, or against Titan under any
bankruptcy, insolvency, or debtor's relief law; or (d) Titan is liquidated,
dissolved or otherwise terminates its activities.
9.4 In the event written notice of termination of this Agreement is given
by ACL due to section 9.2 or 9.3, ACL will be entitled to reject all or part of
any purchase orders received from Titan after notice, but prior to the effective
date of termination if availability of ACL Products is insufficient at that time
to fully meet the needs of ACL and its customers. In any case, ACL may limit
monthly shipments to
Titan during said period to Titan's average monthly shipments from ACL during
the three (3) months prior to the date of notice of termination.
9.5 Upon termination of this Agreement, at its option, ACL may reacquire
any or all of ACL Products then in Titan's possession at prices not greater than
the prices paid by Titan for such ACL Products (or if ACL Products are not in
unopened, factory-sealed boxes, fifty percent (50%) of such prices). Upon
receipt of any ACL Products so reacquired from Titan, ACL shall issue an
appropriate credit to Titan's account.
9.6 ACL SHALL NOT BE LIABLE TO Titan FOR DAMAGES OF ANY KIND, INCLUDING
INCIDENTAL OR CONSEQUENTIAL DAMAGES, ON ACCOUNT OF THE TERMINATION OF THIS
AGREEMENT IN ACCORDANCE WITH THIS SECTION. Titan WAIVES ANY RIGHT WHICH IT MAY
HAVE TO RECEIVE ANY COMPENSATION OR REPARATIONS ON TERMINATION OR EXPIRATION OF
THIS AGREEMENT. ACL shall not be liable to Titan on account of termination or
expiration of this Agreement for reimbursement or damages for loss of goodwill,
prospective profits or anticipated order, or on account of any expenditures,
investments, leases, or commitments made by either party or for any other reason
whatsoever based upon or growing out of such termination or expiration. Titan
acknowledges and agrees that: (a) Titan has no expectation and has received no
assurances that its business relationship with ACL will continue beyond the
stated term of this Agreement or its earlier termination in accordance with this
section, that any investment by Titan in the promotion of ACL Products will be
recovered or recouped, or that Titan shall obtain any anticipated amount of
profits by virtue of this Agreement; and (b) Titan shall not have or acquire by
virtue of this Agreement or otherwise any vested, proprietary, or other right in
the promotion of ACL Products or in any goodwill created by its efforts
hereunder. THE PARTIES ACKNOWLEDGE THAT THIS SECTION HAS BEEN INCLUDED AS A
MATERIAL INDUCEMENT FOR ACL TO ENTER INTO THIS AGREEMENT, AND THAT ACL WOULD NOT
HAVE ENTERED INTO THIS AGREEMENT BUT FOR THE LIMITATIONS OF LIABILITY AS SET
FORTH HEREIN.
9.7 ACL's rights and Titan's obligations to pay ACL all amounts due
hereunder as well as Titan's obligations under Sections 4.1.4, 10, 11, 12, 14,
15, 16, and 19 shall survive termination of this Agreement.
10. ADVERTISING, TRADEMARKS, TRADE NAMES.
------------------------------------
10.1 In the advertising and sale of ACL Products, Titan may use ACL's trade
names, trademarks, logos, and designations in relation to those ACL Products.
Titan will not make or permit the alteration or removal of any tags, labels, or
other identifying marks placed by ACL on ACL Products. Titan will not use (or
give any third party permission to use) the names "Airspan Communications Ltd",
"Airspan Communications Corporation", "ACL", "ACC", or abbreviations or
derivations thereof in Titan's corporate titles, or in any way which might
result in confusion as to ACL and Titan being separate and distinct entities.
10.2 Titan admits ACL's exclusive ownership of the name "Airspan
Communications Corporation", "Airspan Communications Ltd", "ACC", "ACL", and any
abbreviations thereof and all of ACL's trademarks, trade names, logos, and
designations (whether registered or not). Titan shall not take any action
inconsistent with ACL's ownership of such trademarks, trade names, logos, and
designations; therefore, Titan shall treat all of ACL's items distinctively (as
to typography) and shall
only use exact reproductions of all ACL's symbols (including ACL's logo). Titan
shall not adopt or use any trademark or product name which may be confusingly
similar to any ACL trademark, trade name, logo, or designation. Titan may use
the ACL logo as it appears on ACL's letterhead. All references to ACL
trademarks, trade names, logos, and designations by Titan shall be in a manner
acceptable to and approved in advance by ACL.
10.3 Any Titan advertising and promotional materials relating to ACL
products, will reflect the following guidelines: (a) Titan's name must precede
ACL's name, and it must be in typescript letters larger and more prominent than
ACL's name; (b) Titan's name and ACL's name must be physically spaced apart; (c)
Titan shall refer to ACL as "Airspan Communications Ltd" or "ACL" (of the two,
only "ACL" may be used in the possessive form; i.e., ACL's); (d) at least the
first time Titan makes reference to a ACL trademark, an asterisk and footnote
identifying it as a trademark owned by ACL shall be included; (e) ACL's
trademarks shall be used consistently as to spelling and format (abbreviations
or shorthand expressions are not permitted); and (f) at least the first time
Titan makes reference to a non-trademark ACL product name, the full product name
shall be used.
10.4 Titan has paid no consideration for the use of ACL's trademarks,
trade names, logos, copyrights, trade secrets, or designations, and nothing
contained in this Agreement shall give Titan any interest in any of them. Titan
acknowledges that ACL owns and retains all copyrights and other proprietary
rights in all ACL Products, and agrees that it will not at any time during or
after this Agreement assert or claim any interest in or do anything which may
adversely affect the validity or enforceability of any trademark, trade name,
trade secret, copyright, designation, or logo belonging to or licensed to ACL
(including, without limitation, any act or assistance to any act which may
infringe or lead to the infringement of any copyright in ACL Products). Titan
agrees not to attach any additional trademarks, trade names, logos, or
designations to any ACL Product. Titan further agrees not to affix any ACL
trademark, trade name, logo, or designation to any non-ACL Products.
10.5 Upon the expiration or termination of this Agreement, Titan will
forthwith cease all display, advertising, and use of all ACL names, marks,
logos, and designations, and will not thereafter use, advertise, or display any
name, xxxx, or logo which is, or any part of which is, similar to or confusing
with any such designation associated with any ACL Products.
10.6 Titan agrees to use reasonable efforts to protect ACL's proprietary
rights in the Territory and with Titan's customers and to co-operate, without
charge, in ACL's efforts to protect its proprietary rights. Titan agrees to
notify ACL of any known or suspected breach of ACL's proprietary rights which
comes to Titan's attention.
11. CONFIDENTIAL INFORMATION.
------------------------
11.1 All technical information, documentation, Software and other
proprietary information (the "Confidential Information") supplied by ACL to
Titan under this Agreement, except for that which may be in the public domain,
shall as between the parties hereto be treated as the confidential or
proprietary information of ACL. Except as specifically authorised in writing by
ACL, Titan shall: (a) treat and protect all Confidential Information received
from ACL or its suppliers as confidential or proprietary information; (b) not
reproduce any Confidential Information received
from ACL or its suppliers, in whole or in part, save as provided for in Section
13.3; (c) use any Confidential Information received by ACL or its suppliers only
for operation or maintenance purposes in connection with the Equipment; (d)
indemnify ACL for any loss or damages resulting from a breach of this Section;
and (e) not disclose any Confidential Information received from ACL to any third
parties.
11.2 If this Agreement is terminated or cancelled, or if Titan is found to
have breached any of the provisions of Sections 11 or 12, Titan agrees to
immediately return all Confidential Information to ACL. In any event, the
obligations of Sections 11 and 12 will survive termination or cancellation of
this Agreement.
11.3 Any business or product plans disclosed by ACL to Titan hereunder may
be undergoing development. As such, ACL makes no promise that such plans will
ultimately take place or that such product(s) will ultimately be placed on the
market. ACL reserves the right to cancel or alter the development of such plans
and/or the marketing of such product(s) at any time. Any reliance on the
information disclosed hereunder is at Titan's own risk.
11.4 Nothing contained in this section shall be construed as granting,
conferring, or implying any rights by license, estoppel or otherwise. The rights
and obligations of the parties hereto under this section shall survive any
termination of this Agreement.
12. SOFTWARE LICENSE.
----------------
12.1 ACL grants Titan, and Titan hereby accepts, a nonexclusive, non-
transferrable license to use, and to sublicense as set forth below, Software
provided by ACL hereunder only on a single System or unit of Equipment, as may
be applicable. No license is granted to use the Software on multiple Systems or
in conjunction with Equipment furnished by a party other than ACL, unless
specifically agreed in writing by ACL. Software licensed under this Agreement is
defined as: (a) any digital instruction sequence or control data contained on
any media, including but not limited to, any magnetic-, electronic-, optical-,
or organic device, and the term Software shall include any enhancement,
modification, extension, part, portion or expansion thereof or implementation or
downloading from network of any of the foregoing, for use exclusively on a
System or a unit of Equipment; and (b) all associated documentation used to
describe, maintain and use the Software.
12.2 Any Software provided to Titan by ACL will be treated as the
exclusive property of ACL, and Titan will: (a) treat such Software as
Confidential Information under Section 11 of this Agreement; (b) utilise such
Software or any portions or aspects thereof (including any methods or concepts
utilised therein) solely on Systems or Equipment provided by ACL; (c) forthwith
return to ACL all memory media, documentation and/or other material that has
been modified, updated or replaced; (d) except to the extent permitted by
[applicable] law not modify, disassemble or decompile such Software, or reverse
engineer any portion of the Software or functioning of Systems or Equipment, or
permit others to do so, without ACL's prior written consent; (e) except to the
extent permitted by [applicable] law not reproduce or copy such Software in
whole or in part except for backup and archival purposes or as otherwise
permitted in writing by ACL; (f) not perform or release benchmarks, except as
provided for under section 3.3, or other comparisons of the Software; and (g)
not remove any trademark, tradename, copyright, notice
or other proprietary notice from the Software and Titan shall be responsible for
the conservation of the same on any back-up copy of the Software.
12.3 In the event of a breach of this license by Titan, then ACL may, in
its discretion and subject to the availability of a cure, as provided for under
section 9.2, terminate the license with immediate effect, whereupon Titan shall
return to ACL all Software and copies thereof within ten (10) days.
12.4 This software license also comprises any third party software forming
part of the software delivered hereunder, it being understood that ownership to
such third party software is with ACL's licensors but that the third party
licensor's warranties, guarantees, liabilities, and indemnities relating to such
software do not extend to Titan or Titan's use thereof. Titan, however, agrees
to respect all license requirements of such third party licensor as set out in
the third party's license conditions delivered with the Products to Titan. ACL
shall provide Titan with written notification of any such software license
requirements on a case by case basis.
12.5 The following additional license conditions shall apply to Titan's
use of any management Software delivered hereunder. Titan (a) may not transfer
the Software to a computer, location, or site other than that or those, for
which the Software is licensed, without the prior written consent of ACL,
provided, however, that Titan on a temporary basis only, may transfer the
Software to another computer system in the event that the computer for which the
Software has been licensed becomes inoperable; and (b) shall maintain adequate
records of the installation, location, and site of the Software and make such
records available to ACL or the relevant third party licensor at ACL's request.
12.6 Titan may grant sublicenses to various sub licensees ("End User") to
use the Software solely on Systems or units of Equipment, as may be applicable
in accordance with the specific license terms (single or multiple
System/Equipment license) between the parties. Titan agrees to promptly provide
a copy of such End User Agreement to each End User, and no such sublicense will
be effective until the End User has executed such End User Agreement.
14. EXCUSABLE DELAY.
---------------
ACL shall not suffer any liability for non-performance, defective performance,
or late performance of its obligations under this Agreement due to causes beyond
its control and without its fault or negligence such as, but not limited to,
acts of God, war (including civil war), civil unrest, acts of government, fire,
floods, explosions, the elements, epidemics, quarantine, restrictions, strikes,
lock-outs, plant shutdown, material shortages, or delays in transportation or
delays of its suppliers or subcontractors for like cause. In the event of
excusable delay as defined in the preceding sentence, then ACL, upon giving
prompt written notice to Titan, shall be excused from such performance on a day-
to-day basis to the extent of such prevention, restriction, or interference,
provided that ACL shall use commercially reasonable efforts to avoid or remove
such causes of non-performance and to perform with dispatch whenever such causes
are removed or cease to exist.
14. WARRANTY, REMEDIES, AND DAMAGES.
-------------------------------
14.1 Neither party's liability:
(i) for death or personal injury; and
(ii) in relation to any other liability which may not by applicable law be
excluded or limited;
is excluded or limited.
14.2 The maximum liability of each party under this Agreement shall be
limited to the sum of $1million in respect of physical damage to or loss of
tangible property, in the aggregate, and $1million in respect of all other
events, in the aggregate, that may arise our of or in connection with this
Agreement or the ACL Products, regardless of whether such events give rise to
claims in tort, contract, breach of warranty or otherwise. The foregoing
limitations shall: (x) not limit Titan's obligation to make payment for purchase
orders placed by TITAN with ACL, (y) apply to matters the subject of Section
14.1, or (z) affect or modify other limitations on or reductions of liability
contained in this Agreement.
14.3 Titan acknowledges that this is a commercial contract and that,
except as expressly set forth in this Agreement, ACL shall not be liable to
Titan or any person or entity claiming through or under Titan, directly or
indirectly, for any loss or damage (whether direct, indirect, general, special
or consequential) sustained for any cause or reason whatsoever relating to or
arising out of the ACL Products.
14.4 For the avoidance of doubt the "loss or damage" referred to in clause
14.3 above includes:
(i) any :
(a) loss of profits;
(b) loss of sales;
(c) loss of turnover;
(d) loss of bargain; or
(e) loss of opportunity; or
(ii) any indirect or consequential loss or damage howsoever
caused.
14.5 THE FOLLOWING WARRANTIES ARE IN LIEU OF ALL CONDITIONS OR
WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ALL
IMPLIED CONDITIONS OR WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE AND OF ANY OTHER CONDITION OR WARRANTY OBLIGATION ON THE PART OF ACL.
ACL warrants that each ACL Product will be free from defects in material and
workmanship for a period of one (1) year following delivery to the carrier or
agent of Titan as set forth above. If the ACL Products are stored by Titan prior
to delivery to its customer, the warranty period will be the earlier of fourteen
(14) months following delivery to the carrier or agent of Titan as set forth
above or the date of delivery to Titan's customer, such delivery date to be
documented to ACL by Titan. ACL further warrants that at the time of delivery,
ACL has title to ACL Products free and clear of any and all liens and
encumbrances, and that it has the right to grant licenses for the Software
provided hereunder.
14.6 Save as provided for in Sections 14.1 and 14.2 above ACL's SOLE AND
EXCLUSIVE MAXIMUM LIABILITY AND Titan's SOLE AND EXCLUSIVE REMEDY under this
Agreement with regard to defective ACL Products shall be to repair or replace
(with new or functionally operative parts) such defective ACL Products.
14.7 Within fourteen (14) days of the date of shipment by ACL or prior to
the installation date of the ACL Products, whichever is the earlier, Titan may,
upon receipt of newly delivered ACL Products, inspect them and if any item is
found to be inoperative, Titan may return such items to ACL's manufacturing
plant for repair or replacement with shipment and in-transit damage at ACL's
risk and expense. After this period, Titan may return ACL Products that have
malfunctioned to ACL's manufacturing plant for repair or replacement with
shipment and in-transit damage at Titan's risk and expense. Repaired or
replacement products shall be delivered by ACL to a carrier or agent agreed to
by the parties. Such carrier or agent shall be Titan's agent. Risk of loss or
damage to such products shall pass to Titan on delivery to such carrier or
agent, but ACL shall be liable for the expense of returning such products to
Titan's location in the Territory. Titan agrees to pay for all service expense
not covered by this warranty. Xxxxxxxx shall be at ACL's then-current service
rates. All remedies set forth herein are made on the condition that: (a) ACL is
promptly notified in writing upon discovery by Titan that such ACL Products are
defective; and (b) ACL's examination of such ACL Products shall disclose that
such alleged deficiencies actually exist and were not caused by accident, any
other hazard, neglect, alteration, Titan's improper testing, installation, or
attempts to repair, any cause beyond the range of normal usage, or use of
supplies not meeting ACL specification. In the event ACL elects to repair or
replace any defective ACL Product, it shall have up to thirty (30) calendar days
from receipt to repair and return such product to Titan's carrier or agent. Such
repair, replacement, or correction shall
constitute fulfilment of all liability of ACL to Titan whether based in
contract, tort, or otherwise.
14.8 Save as provided for in Section 15 below Titan shall indemnify and
hold harmless and defend ACL and its respective officers, directors, employees,
representatives and agents from and against all claims, demands, actions, suits,
proceedings, writs, judgements, orders and decrees brought, made or rendered
against them or any of them and all damages, losses and expenses suffered or
incurred by them or any of them howsoever arising out of or related to the
breach by Titan of any of the terms of this Agreement. ACL shall notify Titan
forthwith of any claim, demand, action, suit, proceeding, writ, judgement, order
or decree falling within the scope of this Section 14 and shall permit Titan
sole conduct of the same and shall provide reasonable assistance in relation
thereto, subject to the payment by Titan of ACL's reasonable costs and expenses.
15. INTELLECTUAL PROPERTY RIGHTS INDEMNITY.
--------------------------------------
15.1 ACL agrees to indemnify and hold Titan harmless with respect to any
suit, claim, or proceeding brought against Titan by a third party alleging that
Titan's use of the Equipment or the Software, separately or in combination, as a
whole or in part, constitutes an infringement of any patent or copyright or
misuse of proprietary or trade secret information. ACL agrees to defend Titan
against any such claims and to pay all litigation costs, reasonable attorney's
fees, settlement payments, and any damages awarded or resulting from any such
claim.
15.2 Titan shall promptly advise ACL of any such suit, claim, or
proceeding and shall co-operate with ACL in the defence or settlement thereof.
ACL shall have sole control of the defence of any action involving such a claim
and of all negotiations for its settlement or compromise.
15.3 In the event that an injunction is obtained against Titan's use of
the Equipment and/or the Software, in whole or in part, as a result of any such
claim, ACL shall use its best efforts to either: (a) procure for Titan the right
to continue using the portions of the Equipment or the Software enjoined from
use; or (b) replace or modify the same with functionally equivalent or better
Equipment and/or Software so that Titan's use is not subject to any such
injunction. In the event that ACL cannot perform the remedies set forth in
Sections 15.3(a) or 15.3(b), then Titan shall have the right to return such
Equipment and the Software to ACL. In the event of such return, ACL shall refund
the depreciated value of the Equipment and the license to use the Software
within thirty (30) days of the receipt by ACL of the Equipment and the Software.
15.4 This indemnity shall not apply to claims arising in respect to the
use of the Equipment or Software supplied by ACL or manufactured by its
suppliers in accordance with any design or any special instruction furnished by
Titan, or which is used by Titan in a manner or for a purpose not contemplated
by this Agreement.
15.5 The provisions of this Section 15 set forth the entire obligation of
ACL with respect to any claim of patent infringement, copyright infringement, or
misuse of proprietary or trade secret information.
16. EXPORT CONTROLS AND LEGAL COMPLIANCE.
------------------------------------
16.1 If any approval with respect to this Agreement, or the registration
thereof, shall be required at any time during the term of this Agreement, with
respect to giving legal effect to this Agreement in the Territory, or with
respect to compliance with exchange regulations or other requirements so as to
assure the right of remittance abroad of United States dollars pursuant to
Section 5 hereof, Titan shall immediately take whatever steps may be necessary
in this respect, and any charges incurred in connection therewith shall be for
the account of Titan. Titan shall keep ACL currently informed of its efforts in
this connection. ACL shall be under no obligation to ship ACL Products to Titan
hereunder until Titan has provided ACL with satisfactory evidence that such
approval or registration is not required or that it has been obtained.
16.2 In the performance of its obligations under this Agreement, Titan
shall at all times strictly comply with all export laws, regulations, and orders
of the United Kingdom and the United States of America. Titan specifically
acknowledges that Equipment, Software or technology supplied or licensed by ACL
under this Agreement are subject to U.K. and U.S. trade sanctions and export
control laws and regulations including, but not limited to, the various Foreign
Assets Control Regulations, the Export Administration Regulations, and the
International Traffic in Arms Regulations. Titan specifically acknowledges that
Equipment, Software, or technology obtained from ACL pursuant to this Agreement
shall not be exported, reexported, transhipped, disclosed, diverted, or
transferred, directly or indirectly, contrary to U.K. and U.S. laws, orders or
regulations. Titan shall also comply with the United States Foreign Corrupt
Practices Act and shall indemnify ACL from any failure to comply or violation of
such act by Titan. The provisions of this section shall survive any termination
of this Agreement.
17. TRAINING AND DOCUMENTATION.
--------------------------
17.1 ACL shall provide a single technical course in the English language
for up to four (4) qualified technicians of Titan during the first year of this
Agreement. The training course so developed by ACL shall be used to familiarise
Titan's technicians with the installation, use, commissioning, and maintenance
of ACL Products. Training will be conducted at ACL's facilities in Uxbridge, UK,
unless otherwise agreed to by ACL. The necessary instructors , training
materials, and training facilities will be provided by ACL at no charge to
Titan. Titan will pay all additional expenses of training including, but not
limited to, travel and room and board. Additional training courses may be
requested by Titan at ACL's then current rates for such courses.
17.2 ACL agrees to provide Titan at no additional charge with its standard
package of documentation related to the use, maintenance, and installation of
ACL Products. In the event that such documentation is modified during the term
of this Agreement, ACL agrees to provide to Titan at no additional charge all
such modifications. In addition to the documentation described above, ACL agrees
to provide at no additional charge reasonable amounts of sales materials such as
brochures, press releases, and fact sheets. All documentation provided by ACL to
Titan shall be in the English language. All translation of such documentation
provided by ACL will be at Titan's sole expense. All such translations and
advertising
material not supplied by ACL relating to ACL Products and services will be
submitted to ACL for approval before publication or dissemination.
19. CONFLICT OF INTEREST.
--------------------
Titan confirms that it has revealed all information pertaining to possible
conflicts of interest created by the sale of competing products or services or
arising from other positions or contracts held by Titan, and represents that no
conflict of interest exists. Any future circumstances which could create
possible conflicts of interest will be revealed to ACL as soon as they become
known by informing ACL of any business relationships, circumstances, or
situations which could prejudice in any way the conduct of ACL marketing
activities according to the highest ethical and business standards, or place ACL
or Titan in any kind of embarrassing situation.
19. MISCELLANEOUS.
-------------
19.1 This Agreement shall be construed in accordance with and governed by
the laws of the England and Wales, without regard to its conflicts of law rules.
The parties hereby exclude the United Nations Convention on Contracts for the
International Sale of Goods from this Agreement and any transaction between them
which is carried out in connection with this Agreement.
19.2 Any dispute, controversy or claim between the parties arising out of,
or in connection with, this Agreement, or the breach, termination or validity
thereof will be resolved by mutual agreement of the parties. If any dispute,
controversy, or claim arising out of or relating to this Agreement, or the
breach, termination, or validity thereof is unable to be resolved by mutual
agreement of the parties, each of the parties hereby (i) agrees that any action,
suit, or proceeding with respect to this Agreement (other than an action for
injunctive or equitable relief within the Territory) against it or its
properties or revenues must be brought exclusively in the English courts sitting
in London, England, and (ii) irrevocably submits to the exclusive jurisdiction
of any such court and any appellate court from any order or judgement thereof in
any such action, suit, or proceeding. Titan hereby irrevocably agrees that all
claims in respect of such action, suit, or proceeding may be heard and
determined in such courts. Titan hereby irrevocably waives, to the fullest
extent it may effectively do so, the defence of an inconvenient forum to the
maintenance of such action, suit, or proceeding. Titan agrees that a final
judgement in any such action, suit, or proceeding will be conclusive and may be
enforced in other jurisdictions by suit on the judgement or in any other manner
provided by law.
19.3 ACL's failure to enforce at any time any of the provisions of this
Agreement or any right with respect thereto, or to exercise any option herein
provided shall in no way be construed to be a waiver of such provision, rights,
or options, or in any way to affect the validity of this Agreement. ACL's
exercise of any of its rights hereunder or of any options hereunder under the
terms or covenants herein shall not preclude or prejudice ACL from thereafter
exercising the same or any right which it may have under this Agreement,
irrespective of any previous action or proceeding taken by ACL hereunder.
19.4 In the advertising and sale of ACL products, Titan will utilise ACL's
regular trade names and trademarks only as permitted or directed by ACL, will
not make or permit alteration or removal of any tags, labels, or other
identifying marks placed by ACL on its products, and will not use the name
"Airspan Communications
Ltd" or abbreviations thereof in Titan's corporate titles or in any other way
which might result in confusion as to ACL and Titan being separate and distinct
entities. Titan will not register any ACL trademark.
19.5 This Agreement shall be binding upon and inure to the benefit of the
successors and assigns of ACL and shall be binding upon and inure to the benefit
of Titan's heirs, legal representatives, successors and permitted assigns.
19.6 This Agreement and any attachment hereto shall be modified only by an
instrument in writing and signed by duly-authorised representatives of the
parties.
19.7 All notices, requests, consents, and other communications hereunder
must be in writing and will be deemed effective when actually received by the
party to whom sent, at the following addresses:
To: ACL To: Titan
Airspan Communications Ltd. Titan Wireless Inc.
Cambridge House 3033 Science Park Road
Oxford Rd, UXBRIDGE San Diego, CA 92121, U.S.A.
Xxxxx, XX0 0XX Attention: General Counsel
England
ATTN: Contracts Manger
For the avoidance of doubt, notices to ACL will only be legally effective when
actually received by the Contracts Manager. Similarly, notices to Titan will
only be legally effective when received by General Counsel.
19.8 This Agreement is executed in English only, and Titan hereby waives
any right which it may have under the laws of the Territory to have this
Agreement executed in any other language.
19.9 The provisions of this Agreement are severable, and if any provision
is held invalid or unenforceable in whole or in part in any jurisdiction, then
such invalidity or unenforceability will affect only such provision or part
thereof in such jurisdiction, and will not in any manner affect the provision in
any other jurisdiction, or any other provision in this Agreement in any other
jurisdiction. To the extent permissible under applicable law the parties hereby
agree that they will use their best efforts to agree an alternative provision
with the same commercial effect in substitution for such invalid or
unenforceable provision.
22. Titan agrees not to publish any press releases or otherwise publicise the
existence, or any of the terms, of this Agreement without the prior written
consent of ACL.
23. This document constitutes the entire agreement between the parties with
respect to the subject matter hereof, and supersedes all previous
communications, representations, understandings and agreements, either oral
or written, with respect to the subject matter hereof, between the parties
or any official or representative thereof.
23. RESELLER'S MINIMUM PURCHASE COMMITMENTS.
-------------------------------------------
23.1 Upon the execution of this Agreement, Titan agrees to, and does
concurrently with its signing of this Agreement, order ACL Products on a firm,
noncancellable basis in the aggregate United States Dollar amount (net of any
applicable discounts) of [*] for three systems, as set forth in Section 4.1
24. CLEARANCE
If either party shall cause this Agreement to be made the subject of an
application for negative clearance and/or notification for exemption to the
Commission of the European Communities (the "Commission") then in the event of
any provision of this agreement being held to be in contravention of Article
85(1) of the Treaty establishing the European Economic Community and not
qualifying for exemption under Article 85(3) of the Treaty, the parties shall
consider jointly such amendment or amendments as would avoid infringement of
that Article and attempt to agree in good faith such amendment or amendments. If
within one calendar month of receipt of advice from the Commission of such
contravention or of this agreement otherwise being considered to contravene
Article 85(1) the parties have not agreed upon such amendment or amendments as
would avoid infringement of that Article or would otherwise validate this
agreement, either party may thereupon terminate this agreement forthwith by
written notice to that effect to the other party.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the Effective Date, such parties acting by their officers,
being thereunto duly authorised.
Airspan Communications Ltd Titan Wireless Inc.
By: ______________________________ By: ________________________________
Name: Xxxx Xxxxxxxxxx Name: Xxxxx X. Xxxxxx
Title: President & CEO Title: General Counsel
[*] Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
SCHEDULE I
----------
ACL Products
------------
Airspan AS4000 Wireless Fixed Access Systems
Airspan AS8100 Sitespan
------------------------------End of Schedule I ------------------------------
SCHEDULE II
-----------
Territory
---------
Titan's joint ventures ("JV's") in which it has either: (i) a majority equity
holding in the JV; or (ii) it has an equity holding in the JV of at least ten
percent (10%) and has management control of the JV as evidenced in writing.
---------------------------------- End of Schedule II ------------------------
Schedule III
------------
Spares Inventory
----------------
2. Recommended Spares Quantities
The following are ACL recommended minimum standard quantities for spares that
will be stocked by Titan. The quantities may be increased at Titan's discretion.
For example, for a widely dispersed network, it may be appropriate to increase
to quantities to support a number of spares sets held at regional centres. ACL
may, from time to time, vary the recommended minimum standard quantities of
spares and will notify Titan in writing of any such changes.
Subscriber Terminal (ST) spares
2% of the deployed number of each type of ST, with a minimum quantity of 1 for
each type deployed. The following table shows an example of this:
----------------------------------------------------------------------------------------------------------------
Item Deployed Spare Qty
Qty
----------------------------------------------------------------------------------------------------------------
ST 2%
----------------------------------------------------------------------------------------------------------------
R1 1-line 64k & 32k POTS internal plastic Subs Terminal, Ext Antenna, 5000 100
PSU, batteries and cable
-----------------------------------------------------------------------------------------------------------------
N4 4-line 32k POTS modular unit, Antenna, Cable and PSU (no batt) 100 2
-----------------------------------------------------------------------------------------------------------------
L128 128kbps internal Subs Terminal, Ext Antenna, PSU and cable 5 1
----------------------------------------------------------------------------------------------------------------
Access Concentrator (AC) and Central Terminal (CT) spares
The quantity and type of spares for CTs are dependent on the environment and the
level of service desired by each customer.
The following table shows ACL's recommended sparing rate for the main AC and CT
plug in units in a 3.5GHz system.
--------------------------------------------------------------------------------------------------------
Ref : Name Recommended qty
(minimum=1 where quoted)
--------------------------------------------------------------------------------------------------------
CT-RF
--------------------------------------------------------------------------------------------------------
888-0004 : Monitor card 1 per 20 CTs deployed
--------------------------------------------------------------------------------------------------------
888-0005 : Monitor PSU card 1 per 20 CTs deployed
--------------------------------------------------------------------------------------------------------
888-xx02 : Dual PA 3.4-3.6 GHz 1 per 10 CTs deployed
--------------------------------------------------------------------------------------------------------
888-0003 : Combiner Shelf PSU 1 per 20 CTs deployed
--------------------------------------------------------------------------------------------------------
888-xx01 : LNA/Diplexer 3.4-3.6 GHz Plan 1 1 per 10 CTs deployed
--------------------------------------------------------------------------------------------------------
888-xx06 : DA CT rf card, 3.4-3.6 GHz Plan 1 1 per 10 CTs deployed
--------------------------------------------------------------------------------------------------------
Table Continued
--------------------------------------------------------------------------------------------------------
Ref : Name Recommended qty
(minimum=1 where quoted)
--------------------------------------------------------------------------------------------------------
CT - Modem Shelf
--------------------------------------------------------------------------------------------------------
888-0008 : DA TU card 1 per 20 DA Modem shelves deployed
--------------------------------------------------------------------------------------------------------
888-0007 : DA Shelf Controller card 1 per 20 DA Modem shelves deployed
--------------------------------------------------------------------------------------------------------
888-0010 : DA Modem card 1 per 8 DA Modem shelves deployed
--------------------------------------------------------------------------------------------------------
888-0009 : DA AU card 1 per 20 DA Modem shelves deployed
--------------------------------------------------------------------------------------------------------
888-0011 : DA Shelf PSU 1 per 20 DA Modem shelves deployed
--------------------------------------------------------------------------------------------------------
AC
--------------------------------------------------------------------------------------------------------
888-0008 : DA TU card 1 per 10 AC shelves deployed
--------------------------------------------------------------------------------------------------------
888-0005 : Monitor PSU card 1 per 10 AC shelves deployed
--------------------------------------------------------------------------------------------------------
888-0007 : DA Shelf Controller card 1 per 10 AC shelves deployed
--------------------------------------------------------------------------------------------------------
888-0011 : DA Shelf PSU 1 per 10 AC shelves deployed
--------------------------------------------------------------------------------------------------------
888-0012 : AC CU card 1 per 10 AC shelves deployed
(if 32k used)
--------------------------------------------------------------------------------------------------------
SCHEDULE IV
-----------
Prices for ACL Products
-----------------------
------------------------------------------------------------------------------------------------------------------
ITEM UNIT VOLUME/1/ XXXXX 0 XXXXX 0 XXXXX 0
------------------------------------------------------------------------------------------------------------------
Subscriber Terminals Units/2/ Supplied 0 to 5,000 5,001 to 20,000 20,000 to 100,00
------------------------------------------------------------------------------------------------------------------
All Terminals (except * * *
i, ii, and iii below)
------------------------------------------------------------------------------------------------------------------
(i) ST R2 * * *
------------------------------------------------------------------------------------------------------------------
(ii) ST L128 * * *
------------------------------------------------------------------------------------------------------------------
(iii) ST P1V2 * * *
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
ITEM UNIT VOLUME XXXXX 0 XXXXX 0 XXXXX 0
------------------------------------------------------------------------------------------------------------------
XX, XX incl. Antennas CT or AC Rack or 0 to 100 101 to 500 501 to higher
Antenna Units
Supplied
------------------------------------------------------------------------------------------------------------------
CT, AC incl. Antennas * * *
------------------------------------------------------------------------------------------------------------------
ITEM UNIT VOLUME XXXXX 0 XXXXX 0 XXXXX 0
------------------------------------------------------------------------------------------------------------------
Per Server 0 to 20 21 to 100 101 to higher
Software
------------------------------------------------------------------------------------------------------------------
Sitespan: Main License * * *
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
ITEM UNIT VOLUME XXXXX 0 XXXXX 0 XXXXX 0
------------------------------------------------------------------------------------------------------------------
0 to 10 11 to 16 17 to higher
Software
------------------------------------------------------------------------------------------------------------------
V5.1 RTU License Per Rack/1000 * * *
subscriber
------------------------------------------------------------------------------------------------------------------
Per Rack/2000 * * *
V5.2 RTU License subscriber
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
ITEM UNIT VOLUME XXXXX 0 XXXXX 0 XXXXX 0
------------------------------------------------------------------------------------------------------------------
Extended Warranty/3/ Per Applicable Per Applicable Per Applicable Per Applicable
Item's Unit Volume Item's Level Item's Level Item's Level
------------------------------------------------------------------------------------------------------------------
Extended Warranty * * *
Price
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
[*] Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
___________________________
/1/ For ST Units, a unit of volume is defined as a 64 kbits/sec line. For the
purpose of applying the discount structure, a ST P1 V2 is defined as 64
kbits/sec.
/2/ Volume levels are calculated starting from the effectivity of the 24 month
agreement.
/3/ Must be purchased prior to expiry of the Warranty period.
-----------------------------------------------------------------------------------------------------------------
Product Price
(Frequency: 3.4-3.6 plan 1) (US Dollars)
-----------------------------------------------------------------------------------------------------------------
Subscriber Terminals
801-6112 : ST-R1 1-line 64k or 32k POTS 3.4-3.6 GHz Plan 1 (Ant,SIU,PSU,batt) $*
801-6122 : ST-R2 2-line 64k or 32k POTS 3.4-3.6 GHz Plan 1 (Ant,SIU,PSU,batt) $*
802-6112 : ST-S1 1-line 64k or 32k POTS 3.4-3.6 GHz Plan 1 (Ant,SIU,PSU,batt) $*
802-6122 : ST-S2 2-line 64k or 32k POTS 3.4-3.6 GHz Plan 1 (Ant,SIU,PSU,batt) $*
803-6122 : ST-N2 2-Line 64k or 32k POTS 3.4-3.6 GHz Plan 1 (Ant,SIU,PSU,batt) $*
803-6121 : ST-N2 2-Line 64k or 32k POTS 3.4-3.6 GHz Plan 1 (Ant,SIU,PSU) $*
803-6142 : ST-N4 4-Line 32k POTS 3.4-3.6 GHz Plan 1 (Ant,SIU,PSU,batt) $*
803-6141 : ST-N4 4-Line 32k POTS 3.4-3.6 GHz Plan 1 (Ant,SIU,PSU) $*
804-6112 : ST-B1 (ISDN 2B+D) 3.4-3.6 GHz Plan 1 (Ant,SIU,PSU,batt) $*
804-6111 : ST-B1 (ISDN 2B+D) 3.4-3.6 GHz Plan 1 (Ant,SIU,PSU) $*
805-6112 : ST-L128 128kbit/s or 1x64kbit/s (DATA) 3.4-3.6 GHz Plan 1 (Ant,SIU,PSU,batt) $*
805-6111 : ST-L128 128kbit/s or 1x64kbit/s (DATA) 3.4-3.6 GHz Plan 1 (Ant,SIU,PSU) $*
805-6122 : ST-L2x64kbit/s (DATA) 3.4-3.6 GHz Plan 1 (Ant,SIU,PSU,batt) $*
805-6121 : ST-L2x64kbit/s (DATA) 3.4-3.6 GHz Plan 1 (Ant,SIU,PSU) $*
806-6122 : ST-M8/32 8-line 32k POTS 3.4-3.6 GHz Plan 1 (Ants,SIUs,batt and M-series ST $*
cabinet)
807-6142 : ST-M8/64 8-line 64 & 32k POTS 3.4-3.6 GHz Plan 1 (Ants,SIUs,batt and M-series $*
ST cabinet)
806-6142 : ST-M16 16-line 32k POTS 3.4-3.6 GHz Plan 1 (Ants,SIUs,batt and M-series ST $*
cabinet)
810-6122 : ST-P1V2 Ethernet+2-Line 64 & 32k POTS 3.4-3.6 GHz Plan 1 (Ant,SIU,PSU,batt) $*
810-6121 : ST-P1V2 Ethernet+2-Line 64 & 32k POTS 3.4-3.6 GHz Plan 1 (Ant,SIU,PSU) $*
-----------------------------------------------------------------------------------------------------------------
ST Ancilliaries
890-0001 : RS530 to V.35 (F) cable for L series STs $*
890-0002 : XXX xxxx mounting bracket $*
890-0003 : Antenna wall mounting kit (antennas are shipped with pole mount bracket as std) $*
890-0004 : Battery for M-series ST $*
890-0005 : Battery for S & R series ST PSU $*
890-0006 : Battery for B,L,N & P series ST PSU $*
890-0007 : M-series ST modular enclosure and PSU $*
890-0008 : External Housing for M-series modular STs $*
890-0009 : ST antenna drop cable kit (300m standard cable) $*
890-0010 : ST antenna drop cable kit (300m low-loss cable) $*
890-0011 : ST antenna drop cable kit (25m) $*
890-0012 : Crimp tool for terminating standard Antenna Drop cable $*
890-0013 : Crimp tool for terminating low-loss Antenna Drop cable $*
[*] Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
-----------------------------------------------------------------------------------------------------------------
CT and AC Rack mechanics
700-0001 : CT Rack with RF Combiner shelf + 1 DA Modem shelf $*
700-0002 : CT Rack with RF Combiner shelf + 2 DA Modem shelves $*
700-0011 : CT Expansion Rack with 1 DA Modem shelf $*
700-0012 : CT Expansion Rack with 2 DA Modem shelves $*
702-0012 : CT Rack with RF Combiner shelf + 1 DA Modem shelf + 2FA Modem shelves $*
703-0001 : AC Rack with 1 AC shelf $*
703-0002 : AC Rack with 2 AC shelves $*
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CT Antenna Systems
710-6932 : Directional Antenna, 2 feeder ports, 65 Deg 3.4-3.6 GHz $*
710-6931 : Directional Antenna, 1 feeder port, 65 Deg 3.4-3.6 GHz $*
710-6961 : Directional Antenna, 1 feeder port, 180 Deg 3.4-3.6 GHz $*
711-6902 : Dual feeder port Omni Antenna system 3.4-3.6 GHz $*
711-6901 : Single feeder port Omni Antenna dipole 3.4-3.6 GHz $*
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CT Antenna Feeder
712-0000 : CT Antenna Feeder (1x50m)+ Installation kit $*
713-0000 : CT Antenna Feeder (2x50m)+ Installation kit $*
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CT FA and DA RF plug in sets
720-6100 : CT RF full plug in set 3.4-3.6 GHz Plan 1 (2PA+MON+3PSU+2DIPLNA) $*
721-6100 : CT RF basic plug in set 3.4-3.6 GHz Plan 1 (PA+MON+2PSU+DIPLNA) $*
722-6100 : CT RF Expansion plug in set 3.4-3.6 GHz Plan 1 (PA+PSU+DIPLNA) $*
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CT DA Modem shelf card sets
750-6100 : DA Modem shelf full card set 3.4-3.6 GHz Plan 1 (RF+AU+TU+SC+2PSU+6Modems) $*
760-6100 : DA Modem shelf basic card set 3.4-3.6 GHz Plan 1 (RF+AU+TU+SC+2PSU) $*
761-0000 : DA Modem card $*
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AC Shelf plug-ins
770-0000 : AC Shelf full card set for CAS (2PSU+SC+8XTU+CTU+CU+spare CU+spare TU) $*
771-0000 : AC Shelf full card set for Data (2PSU+SC+8XTU+CTU+spare TU) $*
772-0000 : AC Shelf full card set for V5.1 (2PSU+SC+8XTU+CTU+CU+spare CU+spare TU) $*
773-0000 : AC Shelf full card set for V5.2 (2PSU+SC+2XTU+3CU+3CTU+spare CU+spare TU) $*
774-0000 : AC Shelf full card set for Packet V5.1 (2PSU+SC+6XTU+2CTU+PTU+spare+2CU+spare $*
CU+spare TU)
775-0000 : AC Shelf full card set for Packet V5.2 (2PSU+SC+2XTU+3CTU+3PTU+spare+3CU+spare $*
CU+spare TU)
780-0000 : AC Basic Shelf card set (Generic) (2PSU+SC+CTU+XTU) $*
781-0000 : AC Basic Shelf card set for Packet (Generic) (2PSU+SC+CTU+PTU) $*
782-0000 : AC TU card $*
783-0000 : AC CU card $*
784-0000 : AC PTU card $*
[*] Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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CT and AC Ancilliaries
886-6102 : CT commissioning tool for DA Modem shelves 3.4-3.6 GHz Plan 1 $*
887-0001 : 1xDA Modem Shelf Upgrade (Mechanics only) $*
887-0002 : 1xAC Modem Shelf Upgrade (Mechanics only) $*
887-0005 : Station alarm module for addition to any CT or AC rack $*
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Software and NMS
870-1000 : AS8100 Sitespan Desktop Hardware Platform (Windows NT PC + Serial port $*
expansion.)
870-1001 : Rack mounting AS8100 Server PC $*
870-1010 : Rack for rack mounting AS8100 PCs $*
870-2100 : AS8100 Sitespan Client / Server software and RTU license $*
870-2200 : AS8100 Sitespan Additional Client/Server software RTU license $*
870-2300 : AS8100 Sitespan Shelf License $*
870-2900 : Annual Maintenance/Upgrade charge for Sitespan software $*
871-1000 : V5.1 License per 1000 subscribers $*
871-2000 : V5.2 License per 2000 subscribers $*
872-1000 : STMON for Windows 98 and NT $*
873-1000 : AS9000 (Airplan) Full licence (500 sites, 1 yr support) $*
873-2000 : AS9000 (Airplan) Lite licence (50 sites, 1 yr support) $*
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Documentation
880-2000 : AS4000 DA Documentation (CD-ROM) $*
880-3000 : AS8100 (Sitespan) Documentation (CD-ROM) $*
880-2001 : AS4000 DA Documentation (Paper) $*
880-3001 : AS8100 (Sitespan) Documentation (Paper) $*
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Installation Tools
882-0000 : Survey Tool (meter box,cables,PSU) $*
883-6102 : DA Survey Head Unit 3.4-3.6 GHz Plan 1 $*
884-0000 : Pump-up mast for use with survey tool $*
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Services
885-1000 : Site Survey per day excluding travel and expenses $*
885-2000 : Installation per day excluding travel and expenses $*
885-3000 : Radio Plannng per day excluding travel and expenses $*
885-4000 : Airspan Training per day at Uxbridge for up to 6 students, excluding travel $*
and expenses
885-4001 : Airspan Training: per day on Customer premises for up to 6 students, excluding $*
travel and expenses
885-4002 : Airspan Training: per day per additional student, excluding travel & expenses $*
885-5000 : Project Management per manager per day excluding travel and expenses $*
[*] Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
-----------------------------------------------------------------------------------------------------------------
Network Interface Equipment
891-0000 : V5.1 to V5.2 converter basic unit: 8xE1 on V5.1 $*
891-0001 : V5.1 to V5.2 converter upgrade: additional 8xE1 on V5.1 $*
891-0005 : Channel Bank basic unit: 30 POTS lines $*
891-0006 : Channel Bank upgrade: 30 additional POTS lines $*
891-0010 : TE1-E1 converter *
-----------------------------------------------------------------------------------------------------------------
[*] Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
