2nd PURCHASE CONTRACT (YZN/ACL-S13)
EXHIBIT
10.18
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 the Company’s confidential treatment request.
2nd
PURCHASE
CONTRACT (YZN/ACL-S13)
THIS
CONTRACT, made this 13th
day of
September, 2005, by and between YOZAN INCORPORATED, a corporation duly organized
and existing under the laws of Japan, and having its principal place of business
at Sunshine-xxxx Xxxxx Importmart Xxxx. 0X, 0-0-0, Xxxxxxx-Xxxxxxxxx,
Xxxxxxx-xx, Xxxxx, Xxxxx (hereinafter called “YZN”) and AIRSPAN COMMUNICATIONS
LIMITED, a corporation duly organized and existing under the laws of England,
U.K., and having its principal place of business at Xxxxxxxxx Xxxxx, Xxxxxx
Xxxx, Xxxxxxxx, Xxxxxxxxx, XX0 0XX, X. K. (hereinafter called
“ACL”),
WITNESSETH
:
WHEREAS,
YZN is a common carrier of wireless communications services operating its paging
and PHS networks in Metropolitan Tokyo area and is planning to carry out a
new
wireless broadband access services in the areas of Metropolitan Tokyo Area,
etc.
(hereinafter called, “Project”) with WiMAX technology on the radio frequency of
4.9-5.0GHz, which the regulating authorities will allow YZN to use;
and
WHEREAS,
YZN has decided to use ACL’s WiMAX products as key systems for Project ;
and
WHEREAS,
ACL is one of the leading wireless telecommunications equipment manufacturers
and is developing and manufacturing WiMAX products; and
WHEREAS,
ACL has decided to provide YZN with its key WiMAX products to be used in Project
according to the requirements agreed upon with YZN; and
WHEREAS,
the both parties hereto have executed PURCHASE CONTRACT (YZN/ACL-A14) dated
14th
April,
2005, and SUPPLEMENT TO PURCHASE CONTRACT (YZN/ACL-A14S1) dated 15th
August,
2005, (hereinafter collectively called, “ 1st P/C”);
1
NOW,
THEREFORE in consideration of the premises and mutual covenants and agreements
herein contained, the parties hereto hereby agree as follows :
ARTICLE
1. DEFINITIONS
For
the
purpose of This Contract, the following terms shall have the following meanings
:
|
1.
|
“WiMAX”
means a wireless technology for IP-centric service which is made
based
upon the IEEE standard of 802.16 and certified or equivalent to
being
certified by WiMAX Forum as “WiMAX”.
|
|
2.
|
“Contract
Price” or “Contract Prices” mean the amount of money which is calculated
by multiplying the respective unit prices provided in Article 3.
by the
corresponding quantities provided in Article 4..
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|
3.
|
“ST”
or “STs” collectively mean EasyST and ProST, which is defined in the next
Article 2. hereunder.
|
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4.
|
Base
Station” or “B/S” means the completely assembled base station which
functions as a radio station of WiMAX network node connecting with
the
optical fiber loop and STs in YZN network and to be installed outdoor
mainly on power poles or roof of buildings at the center of each
cell for
WiMAX service.
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5.
|
B/S-Products
Set” means a set of Products supplied by ACL to YZN under This Contract
to
form a major part of B/S.
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6.
|
This
Contract” means this PURCHASE CONTRACT including its Appendixes provided
in this PURCHASE CONTRACT.
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7.
|
Delivery”
means delivery of Products CIP Narita Airport as defined in INCOTERMS2000
and in accordance with Article 5..
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8.
|
“IPR”
and “IPRs” mean all intellectual property rights including, without
limitation, patents, copy rights, registered designs, design rights,
trade
marks, mask works, topography rights, know-how and all other similarly
protected rights.
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9.
|
“Lot”
and “Lots” mean certain quantities of the collective products of ACL
specified in Article 7. collected for one time Acceptance of such
products
|
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10.
|
“Phase”
and “Phases” mean collections of Lots bundled and specified under the
Article 7. to recognize the stage of progress of the purchase under
This
Contract.
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|
11.
|
“ACL-Tok””
means Airspan Japan Corp., a wholly-owned subsidiary of Airspan
Networks
Inc. of the city of Boca Raton, Florida, U.S.A., located at XXX
Xxxxxxxxx
Xxxx., 0-0-0, Xxxxxxxxx, Xxxxxx-xx, Xxxxx,
Xxxxx.
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2
ARTICLE
2. PURCHASE AND SUPPLY OF PRODUCTS
YZN
shall
purchase from ACL and ACL shall supply to YZN the products set forth below
in
this Article 2.(hereinafter collectively called “Products”), in addition to the
products purchased by YZN from ACL under 1st P/C, in accordance with the
provisions of This Contract :
|
1.
|
“EasyST”,
which is a subscriber terminal radio unit of WiMAX designed for
indoor use
with an integrated undetachable antenna of chimney-shape, the detailed
specifications of which are described in Appendix-1 to 1st
P/C.
|
|
2.
|
“WiFi-AP
For EasyST”, which is a WiFi access point base for indoor use, integrated
to EasyST, the detailed specifications of which are described in
Appendix-1 to 1st P/C.
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3.
|
“ProST”,
which is a subscriber terminal radio unit of WiMAX designed for
outdoor
use with an internal antenna, the detailed specifications of which
are
described in Appendix-1 to 1st P/C.
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4.
|
“WiFi-AP
For ProST”, which is a WiFi access point base for fixed outdoor use,
integrated and installed into ProST, the detailed specifications
of which
are described in Appendix-1 to 1st P/C.
|
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5.
|
“MicroMAX-SDR”,
which is a base station radio unit board of WiMAX to be installed
and
assembled by ACL into and with ACL’s Enclosure/Aux. or by YZN into a YZN’s
enclosure with YZN’s auxiliary components, the detailed specifications of
which are described in Appendix-1 to 1st P/C.
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|
6.
|
“Radio-Transceiver”,
which is an OBSAI based radio transceiver integrated to MicroMAX-SDR,
the
detailed specifications of which are described in Appendix-1 to
1st
P/C.
|
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7.
|
“Enclosure/Aux.”,
which is a shell to contain MicroMAX-SDR and its auxiliary components
(Ethernet Switch, Power Supply, ONU, Lighting Protection, Fiber
Backhaul,
Connectors, Enclosure and Mounting Bracket.) assembled with MicroMAX-SDR
including its assembling work, the detailed specifications of which
are
described in Appendix-1 to 1st P/C.
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|
8.
|
“Netspan-NMS”,
which is a software package of the network management tool for
WiMAX
network of MicroMAX-SDR and ProST/EasyST, the detailed specifications
of
which are described in Appendix-1 to 1st P/C.
|
|
9.
|
“CSCA
S/W”, which is a software for Carrier Sense and Collision Avoidance
loaded
on B/S Products Set, the detailed specifications of which are described
in
Appendix-1 to 1st P/C.
|
|
10.
|
“External
Cabling”, which is an each 3 meters cabling finished for connecting
MicroMAX-SDR to Radio-Transceiver, the detailed specifications
of which
are described in Appendix-1 to 1st P/C.
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11.
|
“GPS”,
which is integrated into MicroMAX-SDR as a factory built option,
the
detailed specifications of which are described in Appendix-1 to
1st
P/C.
|
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12.
|
“Cable
for GPS”, which is an each 3 meter cable connecting GPS to its antenna,
the detailed specifications of which are described in Appendix-1
to 1st
P/C.
|
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13.
|
“Cable
for Slave MicroMAX-SDR”, which is an each 3 meters cable connecting two
MicroMAX-SDRs for GPS operation, the details of which are described
in
Appendix-1 to 1st P/C.
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14.
|
“Outdoor
PSU”, which is a power supply unit to be used for and attached to ProST,
the detailed specifications of which are described in Appendix-1
to 1st
P/C.
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3
ARTICLE
3. UNIT PRICES
The
unit
prices of the respective Products purchased by YZN from ACL are set forth
herebelow in this Article (hereinafter collectively called “Unit Price(s)”),
which are established in U.S.Dollars on the basis of CIP Narita Airport
INCOTERMS2000 and are subject to the volume discount only applicable to the
purchase quantity of the respective item mentioned in the next Article 4.
hereunder.
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1.
|
MicroMAX-SDR
(one board) U.S.$[*].-
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2.
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Radio-Transceiver
(one piece) U.S.$[*].-
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(A
Single B/S-Products Set consists of 1 of MicroMAX-SDR and 2 of
Radio-Transceiver, while a Double B/S-Products Set consists of
2 of
MicroMAX-SDR and 4 of Radio-Transceiver.)
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3.
|
Enclosure/Aux. for a Single B/S Products Set and assembling U.S.$[*].- |
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4.
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Enclosure/Aux. for a Double B/S Products Set (To be agreed separately) |
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5.
|
Netspan-NMS
U.S.$[*].-
/from 15,001-to 30,000.-STs cumulated from
|
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1st
P/C
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6.
|
EasyST
U.S.$[*].-
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7.
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WiFi-AP
For EasyST U.S.$[*].-
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8.
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ProST
U.S.$[*].-
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9.
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WiFi-AP
For ProST U.S.$[*].-
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10.
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CSCA
S/W Free
|
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11.
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External Cabling U.S.$[*] pair |
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12.
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GPS U.S.$[*].- |
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13.
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Cable for GPS U.S.$[*].- |
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14.
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Cable for Slave MicroMAX-SDR U.S.$[*].- |
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15.
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Outdoor PSU U.S.$[*].- |
4
ARTICLE
4. PURCHASE QUANTITIES AND CONTRACT PRICES
(1)
The
quantities and Contract Prices on CIP Narita Airport basis of Products to be
purchased by YZN from ACL under This Contract are set forth herebelow in this
Article :
(Name
of
Products) (Purchase
Quantities) (Contract Price)
|
1.
|
MicroMAX-SDR
[*]
Units
US$[*].-
|
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2.
|
Radio-Transceiver
[*]
Units
US$[*].-
|
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3.
|
Enclosure/Aux.
for Single B/S Products Set [*]
Units
US$[*].-
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4.
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Enclosure/Aux.
for Double B/S Products Set NIL
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5.
|
Netspan-NMS
1 Set for 10,000STs [*]
(up to cumulated 30,000Units)
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6.
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EasyST
[*]
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7.
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WiFi-AP
For EasyST [*]
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8.
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ProST
[*]Units
US$[*].-
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9.
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WiFi-AP
For ProST [*]
Units
US$[*].-
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10.
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CSCA
S/W 1 set for 1,200 Units Free
|
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11.
|
External
Cabling [*]
Pairs
US$[*].-
|
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12.
|
GPS
[*]
Units
US$[*].-
|
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13.
|
Cable
for GPS [*]
Units
US$[*].-
|
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14.
|
Cable
for Slave MicroMAX-SDR [*]
Units
US$[*].-
|
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15.
|
Outdoor
PSU [*]
Units
US$[*].-
|
| ( Grand Total before volume discount : US$[*].-) |
(2)
ACL
gives YZN a volume discount from the above Grand Total. After this discount,
The
Total Contract Price of This Contract is U.S.$15,000,000.-. The discount amount
shall be calculated and applied on pro-rata basis against each ACL’s
invoice.
ARTICLE
5. DELIVERY CONDITIONS
|
1.
|
Products
shall be delivered to YZN on CIP Narita Airport INCOTERMS2000 basis
subject to the provisions in Article 13. after standard export packing,
the details of which are mutually agreed separately. The shipping
arrangement from U.K. airport, its export customs clearance, and
the
advice and presentation of shipping documents to YZN shall be made
properly by ACL for each respective shipment in accordance with the
standard export procedure, the details of which are mutually agreed
separately. If necessary, partial shipment of each Lot will be allowed
by
YZN after reasonable efforts by ACL to avoid it and the appropriate
notice
by ACL to YZN.
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2.
|
Subject
to Clause 3. of this Article 5., title to and risk of each Lot shall
be
transferred to YZN from ACL upon Delivery CIP Narita Airport
INCOTERMS2000.
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3.
|
The
software will at all times remain the exclusive property of
ACL.
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5
ARTICLE
6. PAYMENT TERMS
The
payment of Contract Price shall be made as follows :
|
1.
|
As
the down payment, 30% of the total Contract Price shall be paid by
YZN to
ACL, by T.T.Remittance within two weeks after the date of This Contract.
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|
2.
|
As
the payment upon each Delivery, 35% of the respective Contract Price
of
each shipment shall be paid by YZN to ACL, by T.T.Remittance within
one
week after the respective Delivery.
|
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3.
|
35%
of the respective Contract Price shall be paid by YZN to ACL, by
T.T.Remittance within two months after the corresponding
Delivery.
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4.
|
The
payment currency shall be
U.S.Dollars.
|
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5.
|
If
YZN does not make any payment by the due date (other than for disputed
invoice),ACL may give written notice of non-payment to YZN, and if
the
overdue payment is not received within 10days of such notice, ACL
will be
entitled to : (1)charge interest on outstanding amount at the rate
of
LIBOR plus 3% calculated daily from the due date; and (2)cease providing
the service and/or cease performing its obligations under This Contract.
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ARTICLE
7. TIME SCHEDULE OF DELIVERY
Delivery
of Products on CIP Narita Airport basis shall be from 1st March, 2006, to 30th
June,
2006. The details of the delivery schedule, Lots and Phases shall be mutually
agreed separately.
ARTICLE
8. DUTIES AND TAXES
YZN
shall
be responsible only for any taxes, duties, surcharges or other similar
assessment imposed on Products or the transaction of YZN in relation to Products
by any taxing authorities in Japan after Delivery.
ARTICLE
9. TEST AND INSPECTION OF PRODUCTS
|
1.
|
ACL
shall perform the factory test and inspection of all units in each
above
Lot of Products at ACL’s factory before the respective shipment
(hereinafter called “Factory Test”), and may ship only the Lot which has
passed Factory Test. The report of Factory Test with the table of
each MAC
address and serial number for each unit shall be submitted by ACL
to YZN
upon Delivery of the respective Lot.
|
6
| 2. | ACL shall receive, if requested by YZN, YZN engineers to visit ACL factory and witness the aforesaid Factory Test. During or after such Factory Test, ACL, according to the request by such YZN engineer, shall perform some items of Factory Test and show such Factory Test itself and its result to such YZN engineer visiting ACL factory, unless it badly affects ACL’s manufacturing cost, shipping schedule of Products or the quality of Products. |
| 3. | YZN shall perform the inspection of quantity and the outlook of all packages (hereinafter called “Outlook Inspection”) and the final test and inspection of random samples for each Lot of Products in Japan (hereinafter called “Acceptance Test of Samples”) within one month after the Delivery of each Lot. In case any failure is found in a sample unit or units of such Acceptance Test of Samples, YZN will, with an immediate written notice of failure (hereinafter called “Notice of Failure”) to ACL, perform the additional test and inspection of the new samples of the corresponding Lot or the test and inspection of all units in the corresponding Lot (hereinafter called “Acceptance Test of All Units”) at the cost of ACL, and ACL shall correct or replace all the defective units immediately till this Lot passes Acceptance Test of Samples or All Units. YZN may use or resell a unit or units which have passed such Acceptance Test of All Units, even before Acceptance of such Lot. In this event, YZN shall issue the written notice of partial acceptance for the units which have passed such Acceptance of All Unit and used or resold by YZN (hereinafter called “Partial Acceptance”). |
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4.
|
The
items, procedure and criteria of the test and inspection of Products
provided in this Article are as per Appendix-2 to 1st
P/C.
|
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5.
|
In
case the respective Products be assembled in Japan, the period of
one
month shall be added on to the above time-line for the assembling
work
period.
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ARTICLE
10. ACCEPTANCE OF PRODUCTS
Acceptance
of Products by YZN shall be done for each Lot which may have passed the
respective Acceptance Test of Samples or of All Units, and YZN shall send a
written notice of acceptance (hereinafter called “Notice of Acceptance”) to ACL
upon the Acceptance of the respective Lot. If and when no Notice of Acceptance
nor Notice of Failure is issued within one month of Delivery in case local
assembling work is not necessary, or within two months of Delivery in case
it is
necessary, the respective Lot of Products shall be deemed to be accepted by
YZN.
7
ARTICLE
11. PERFORMANCE BOND
The
Bank
Guarantee for 10% of the total Contract Price issued by a prime bank in U.K.,
which shall be effective till 6 months after the acceptance of all the Products,
shall be deposited by ACL at YZN. This Bank Guarantee shall be raised by the
end
of January 2006, and effective six months after acceptance of all Products
being
made by YZN. YZN shall return this Bank Guarantee to ACL immediately after
its
expiry.
ARTICLE
12. TECHNICAL SUPPORT AND HANDLING OF PRODUCTS
|
1.
|
Besides
Warranty and Remedy, ACL shall render YZN its technical support for
Product, upon YZN’s request, including but not limited to dispatching
ACL’s qualified engineers with the reasonable charge separately agreed
by
the two parties.
|
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2.
|
YZN
shall undertake that, following the respective Delivery, Products
will be
stored, maintained, and used properly having regard to the Technical
Specifications provided in Appendix-1 to 1st P/C and Requirement
in
Handling of Products provided in Appendix-4 to 1st
P/C.
|
|
3.
|
In
the event WiFi/EasyST integration is done by YZN and YZN requires
ACL to
test interworking of WiFi-Access Point and EasyST, ACL will accept
to
perform such test at YZN’s account on cost(time and material) plus fee
basis.
|
ARTICLE
13. MicroMAX-SDR AND B/S ASSEMBLING
| 1. |
MicroMAX-SDR
may be assembled into and with Enclosure/Aux. by YZN or by ACL-Tok
after
its Delivery and will function as a key component of Base Station.
ACL
shall provide YZN with the detailed specifications of the MicroMAX
interface with Enclosure/Aux. and manual and conditions for assembling
of
MicroMAX-SDR into and with Enclosure/Aux., within one month of
This
Contract. ACL shall support YZN so that assembling of MicroMAX-SDR
into
and with Enclosure/Aux. may be done without any problem. Warranty
and
performance guarantee for MicroMAX-SDR provided in Article 16.
of This
Contract shall be maintained unchanged as far as the said manual
and
conditions is satisfied by YZN and its housing method is approved
by
ACL.
|
| 2. | ACL shall reasonably support YZN for the installation and operation of Base Station including any issues or problems arising from installation, operation and maintenance of MicroMAX-SDR, according to the mutual agreement separately made. |
8
ARTICLE
14. SOFTWARE LICENSE
| 1. |
ACL
hereby grants to YZN a non-exclusive and non-transferable license
to use
Netspan-NMS. The license extends to any correction supplied by ACL
for
Netspan-NMS free of charge.
|
| 2. |
ACL
hereby grants to YZN a non-exclusive license of all the software
loaded on
Products purchased by YZN from ACL. This license of the software
on
Products shall be transferable to the YZN’s
subscribers.
|
ARTICLE
15. THIRD PARTY PROPRIETARY AND IPR
| 1. | Should Products contain third party proprietary equipment or software then, ACL shall pass onto YZN the benefit of whatever warranty support ACL receives from such third party. |
| 2. | ACL will indemnify YZN against liability under any injunction or final court judgment awarded against YZN or any settlement in respect of infringement of third party IPR arising out of YZN’s or its subscriber’s use of Products. |
|
3.
|
Should
such infringement of third party proprietary or IPR or any allegation
thereof occur, ACL shall make best efforts not to involve YZN to
it, and
YZN shall assist, at ACL account, for ACL to settle negotiation
and
litigation caused by such infringement. In such case, YZN shall
promptly
notify ACL in writing of any alleged infringement, and ACL shall
indemnify, defend and hold halmless YZN from any claims, losses,
costs,
damages, fees or expenses in connection with any and all actions,
suits,
claims or demands that may be brought or instituted against any
YZN’s
indemnitee by any third party, up to the limit established in Clause
4. of
Article 19.
|
|
4.
|
Should
such infringement of third party proprietary or IPR or any allegation
thereof occur, ACL will, at its expense, modify, replace Products
or part
thereof so as to avoid such infringement, or procure for YZN the
right to
continue using Products.
|
ARTICLE
16. WARRANTY
ACL,
for
14 months from the Delivery of each respective Lot, warrants Products, as an
independent equipment and/or as a system of Products, free from any defects
and
in strict conformity with the specifications provided in Appendix-1 to 1st
P/C
with the performances guaranteed under Appendix-3 to 1st P/C and suitable for
the YZN’s intended use, which is described in This Contract. YZN shall undertake
that, following Delivery, Products will be stored, maintained, and used properly
as provided in Clause3. of Article12.. The said period of warranty shall be
counted for each Lot from the respective Delivery. The
warrantee period for repaired or replaced Products is ninety (90) days from
its
date
of
Delivery or until the end of its original warrantee period, whichever
longer.
9
ARTICLE
17. REMEDY
|
1.
|
ACL
shall undertake to replace or repair or redesign, at ACL’s
option, any of Products or part thereof which has failed the warranty
conditions provided in Article 16., except where the cause of such
failure
is YZN’s non-compliance with Article 12..
|
|
2.
|
In
any event that frequent or serious failure in warranty occurs, then
ACL
shall take all necessary measure to solve such situation including
but not
limited to changing design, material and/or
workmanship.
|
|
3.
|
YZN
shall advise ACL of a defect or failure in warranty within 30 days
of YZN
becoming aware of it and, except where ACL agrees to replace or repair
Products at the place designated by YZN, YZN promptly returns to
ACL-Tok
such Products of defect or in failure by carriage paid with a written
note
identifying such defect or failure, according to ACL’s
Return Material Authorization (RMA) Procedure. ACL will repair or
replace
such defective item at no additional charge to YZN and return the
repaired
or replacement item to YZN.
|
ARTICLE
18. GUARANTEE FOR SUPPLY AND SUPPORT
|
1.
|
ACL
guarantees, for the period of 5 years from the date of This Contract
to
supply Products, and for the period of 8 years from the date of This
Contract to provide technical support and repair and maintenance
necessary
for Products so that YZN may undertake its Project, with the equivalent
or
more favorable prices and terms and conditions for YZN to This Contract.
The detailed terms and conditions of the said supply of Products
and
technical support by ACL shall be as agreed by a separate agreement
of the
two parties hereto after Delivery of
Products.
|
|
2.
|
If
ACL foresees any difficulty, beyond its reasonable control, in maintaining
to supply of Products or to render technical support or repair and
maintenance, then, by giving 12 months pre-notice to YZN, ACL may
recommend an alternative solution for such difficulty and YZN will
consider such alternative solution.
|
|
3.
|
ACL
reserves the right to substitute Products or part thereof with its
product
equipment or software which will operate in compliance with or in
excess
of the technical specifications provided in Appendix-1 and comply
with the
other provisions in This Contract and be incorporated with Products
under
operation in Project without any problem. Notwithstanding with this
clause, YZN may reject such substitution of Products or part thereof,
in
case such substitution will cause any additional cost for YZN.
|
10
ARTICLE
19. ACCIDENT AND DAMAGE
|
1.
|
ACL
shall indemnify YZN and shall maintain appropriate insurance cover
against
damage (other than Products) and death or injury to the persons to
the
extent caused solely by the negligence of ACL, any defects in Products
that may contribute death, injury or accident or by its personnel
provided
that ACL is immediately notified of any claim and is given full power
to
negotiate and settle all claims in reasonable manner of Japan, and
that
ACL liability for damage to property shall be limited to U.S.$1,000,000
per event or series of connected event and U.S.$2,000,000 in aggregate
under This Contract.
|
|
2.
|
ACL’s
liability hereunder shall extend to all damages directly caused by
the
breach of any of This Contract by
ACL.
|
|
3.
|
ACL
shall not be liable for consequential damages, such as loss of
profit and
loss of use.
|
| 4. | Save for claim ensuing from damage or injury to persons or damage to property as detailed in the above Clause1., ACL’s total liability in respect of all claims arising from this contract in the aggregate shall not exceed the total Contract Price. |
ARTICLE
20. LIQUIDATED DAMAGE
In
the
event that ACL fails to meet the time schedule of Delivery of Products, ACL
will
be liable to pay to YZN agreed liquidated damages for each week of delay of
1%
for the Contract Price of the delayed Lot up to a maximum of 10% of the Contract
Price of that Lot. Partial Acceptance shall be excluded for the purpose of
this
Article. Payment of liquidated damages shall be in full and final satisfaction
of ACL’s liability for delay.
ARTICLE
21. FORCE MAJEUR
Neither
party will be liable for delay in performing or failure to perform obligations
(other than the obligation to make due payments), if the delay or failure result
from circumstances beyond the reasonable control of the other party including
but not limited to an Act of God, refusal or revocation of any license or other
governmental act, fire, explosion, accident, third party industrial disputes,
war, armed conflict, or civil commotion. In the event that such circumstances
continue for ninety days or longer either party may terminate the Contract
or
relevant part of it without further liability to the other.
11
ARTICLE
22. TERMINATION
|
1.
|
In
the event that ether party commits a material breach of This Contract
the
non-defaulting party shall give the defaulting party written notice
of
alleged breach and a reasonable period of time within which to remedy
the
alleged breach. In the event that the defaulting party fails to remedy
the
alleged breach within such period the non-defaulting party may upon
giving
14 days written notice to the defaulting party (without affecting
any
other claim or remedy) immediately terminate This Contract or any
part of
it.
|
|
2.
|
If
either party commits an act of bankruptcy or goes or is put into
liquidation (other than solely for amalgamation or reconstruction)
or if a
receiver is appointed over any part of the party’s
business or if the party suffers the seizure of any property for
non-payment of debt, then the other party may regard any such
circumstances as ground for immediately terminating This Contract
without
notice may terminate This Contract through the same procedure as
provided
in the above clause.
|
|
3.
|
Termination
will not discharge either party from the obligations under This Contract
already becomes due by the
termination.
|
ARTICLE
23. CONFIDENTIALITY
|
1.
|
All
documentation and information supplied by either party to the other
in
whatever form shall be treated as confidential and shall not be disclosed
or used otherwise than for the purpose of performing their obligations
under This Contract save that either party may disclose such information
to its employees who need to know the same for the purpose of carrying
out
their duties in respect of This
Contract.
|
|
2.
|
Neither
party shall be required to keep confidential documentation or information
which (i) is in or comes into the public domain otherwise than through
a
breach of This Contract, or (ii) has been lawfully received from
a third
party without restriction as to its use or disclosure , or (iii)
was
already in the receiving party’s possession free of any restriction prior
to receipt, or (iv) was independently developed by the receiving
party.
|
|
3.
|
The
provisions of this Article shall survive expiry or termination of
This
Contract for a period of three
years.
|
ARTICLE
24. NOTICE
Any
notice or writings required to be given under this Contract, unless expressly
provided otherwise, shall be addressed by international air mail, postage
prepaid, or facsimile to the addresses given below, and except as otherwise
provided be deemed effective 3 days of the time mailed or transmitted
:
12
YZN
:
YOZAN INC.
Sunshine-xxxx
Xxxxx Importmart Xxxx.
0-0-0,
Xxxxxxx-Xxxxxxxxx, Xxxxxxx-xx, Xxxxx
000-0000
Xxxxx
Phone
00-0-0000-0000
Facsimile
00-0-0000-0000
ACL
:
Airspan Communications Ltd.
Xxxxxxxxx
Xxxxx, Xxxxxx Xxxx, Xxxxxxxx, Xxxxxxxxx
XX0
0XX,
X.X.
Phone
00-0000-000-000
Facsimile
44-1895-467-302; and
ACL-Tok:
Airspan-Japan Corp.
IMC
Shinbashi Xxxx. 0X
0-0-0,
Xxxxxxxxx, Xxxxxx-xx, Xxxxx
000-0000
Xxxxx
Phone
00-0-0000-0000
Facsimile
00-0-0000-0000
ARTICLE
25. CONSTRUCTION AND ARBITRATION
|
1.
|
This
Contract shall be governed by, construed and legal relations between
the
parties hereto determined in accordance with the laws of
Japan.
|
|
2.
|
ACL
shall timely obtain the certificate of Telecommunication Engineering
Center (TELEC) at its expense for Products to be Delivered to YZN
after
complete assembling or packaging in a enclosure for immediate
service.
|
|
3.
|
All
dispute, controversies or differences which may arise between the
parties,
out of or in relation to or in connection with This Contract, or
for the
breach thereof, shall be finally settled by arbitration in Japan
in
accordance with the Commercial Arbitration Rules of the Japan Commercial
Arbitration Association. The award rendered by the arbitration shall
be
final and binding upon the both
parties.
|
|
4.
|
All
trade terms provided in This Contract shall be interpreted in accordance
with the latest Incoterms of the International Chamber of
Commerce.
|
13
ARTICLE
26. ASSIGNMENT
No
party
to this Contract shall have the power or ability to assign any part of its
interests in This Contract without the written consent thereto of the other
party.
ARTICLE
27. MISCELLANIOUS
|
1.
|
This
Contract constitutes the entire and only agreement between the parties
relating to the subject matter, and supersedes and cancels all previous
agreements, negotiations, commitments and representatives in respect
thereto, and may not be released, discharged, abandoned, changed
or
modified in any manner except by an instrument in writing of subsequent
date signed by duly authorized officer or representative of each
of the
parties hereto.
|
|
2.
|
This
Contract shall be binding upon YZN and ACL and upon their respective
successors, assigns and legal
representatives.
|
|
3.
|
In
the event that any term of This Contract is unlawful or unenforceable,
such provision shall be of no force nor effect and This Contract
shall
otherwise continue in full force and
effect.
|
IN
WITNESS WHEREOF, each of the parties hereto has caused this Contract to be
executed,
in duplicate, each duplicate of which shall be considered as original, by its
duly
authorized officers or representatives.
YOZAN
INC.
(SIGNED)
By
Xxxxx
Xxxxxxxx, President and CEO
Airspan
Communications Ltd.
(SIGNED)
By
Xxxxxx
Xxxxx-Xxxxxxxx, President Asia Pacific
14
