XXXXXX CORPORATION
FARINON DIVISION
PURCHASE AGREEMENT
This Agreement is entered into this 26th day of April, 1996, by and
between Advanced Radio Telecom Corporation, a Delaware corporation with offices
located at 000 000xx Xxxxxx XX, Xxxxx 0000, Xxxxxxxx, XX 00000 ("ART" or
"Customer"), and Xxxxxx Corporation, Farinon Division, a Delaware corporation,
with offices located at 000 Xxxx Xxxxxxx Xxxxx, Xxxxxxx Xxxxxx, XX 00000
("Xxxxxx").
Whereas, Customer desires to purchase microwave transmission equipment, software
and services ("Products") , and
Whereas, Xxxxxx is willing to sell such Products to Customer upon the terms and
conditions as set forth herein and the various annexes attached hereto and
incorporated into this document.
Now, Therefore, in consideration of the mutual
covenants set forth below, ART and Xxxxxx, intending to be legally bound,
hereby agree as follows:
1. EFFECTIVE DATE; RELATED PCS MARKETING AGREEMENT; FINANCING COMMITMENT.
The Effective Date of this Agreement shall be the date of execution by the
parties, provided, however, that the rights and obligations of the parties
hereunder shall not become effective unless and until the parties have executed
a definitive marketing agreement ("PCS Marketing Agreement") for 38 GHz services
as contemplated by Version 5 of a Letter of Intent executed by ART and Xxxxxx
and dated February 22, 1996.
2. SCOPE
Xxxxxx will furnish Products for Customer in accordance with the individual
Purchase Orders issued by Customer from time to time during the Term of this
Agreement based upon the prices provided in Annex A hereto. The Products will
be provided in conformity with the terms, conditions, specifications and other
requirements of this Agreement and each Purchase Order will be governed by the
terms and conditions stated herein.
3. PRICES/TAXES
All prices are exclusive of shipping and insurance charges which shall be billed
separately. All prices are exclusive of all sales, use, excise, and other taxes,
duties or charges. Unless evidence of tax exempt status is provided by
Customer, Customer shall pay, or upon receipt of invoice from Xxxxxx, shall
reimburse Xxxxxx for all such taxes or charges levied or imposed on Customer, or
required to be collected by Xxxxxx, resulting from this transaction or any part
thereof.
All prices are FOB Xxxxxx' Factory. Unless instructed otherwise, Xxxxxx will
arrange for insurance and standard commercial shipping, the costs of which will
be invoiced to the Customer.
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Responsibilities regarding the export of items delivered under this Agreement
are detailed in Articles 8. Prior to delivery, Xxxxxx reserves the right to
make substitutions, modifications and improvements to the equipment and/or
software ordered, provided that such substitutions, modifications or
improvements shall not materially affect performance in the application
originally agreed to with Customer.
4. PURCHASE FORECAST GOALS.
ART shall provide Xxxxxx with MicroStar and MicroStar Plus purchase forecasts,
which shall serve as a baseline to establish pricing levels outlined in Annex
A. ART's initial forecast is attached hereto as ANNEX B. Unless otherwise
agreed by the parties, future forecasts shall be provided by ART on a quarterly
basis.
5. PAYMENT/FINANCING
Payment terms shall be determined on a per order basis and are subject to credit
review by Xxxxxx.
Late payments shall result in the assessment of a late charge equal to one and
one-half (1 1/2%) percent per month on any outstanding balance, or the maximum
amount of interest chargeable by law, whichever is less.
Customer shall remain liable for all payments regardless of the method of
payment or financing of this Agreement, unless otherwise agreed to in writing by
Xxxxxx.
Customer's payment obligations are particular hereto, and Customer has no right
of set-off against other Purchase Orders or other transactions between the
parties.
6. WARRANTIES AND LICENSE
A) EQUIPMENT WARRANTY
Refer to Annex C for terms and conditions related to customer service and
equipment warranty.
Xxxxxx warrants that each product of its own manufacture shall, at the time
of delivery and for a period of twenty-four (24) months thereafter, be free
from defects in materials and workmanship and to conform to Xxxxxx' published
specifications. Such warranty shall not include any consumable components to
which a specific manufacturer's guarantee applies. If any Xxxxxx product
shall prove to be defective in materials or workmanship under normal intended
usage, operation and maintenance during the applicable warranty period as
determined by Xxxxxx after examination of the product claimed to be
defective, then Xxxxxx shall repair, replace or refund the purchase price
of, at Xxxxxx' sole option, such defective product, in accordance with
procedures specified below, at its own expense, exclusive, however, of the
cost of labor by the Customer's own employees, agents or contractors in
identifying, removing or replacing the defective part(s) of the product.
Replacement products may be new, refurbished or remanufactured. Returned
replaced products shall become the property of Xxxxxx. Replacement products
shall be warranted for the balance of the unexpired portion of the returned
products warranty.
In composite equipment assemblies and systems, which include equipment of such
other than Xxxxxx manufacture, Xxxxxx' responsibility under this warranty
provision for the non-Xxxxxx manufactured portion of the equipment shall be
limited to the other equipment manufacturer's standard warranty. Provided,
however, that if the other manufacturer's standard warranty period
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is of a shorter duration than the warranty period applicable to Xxxxxx'
manufactured equipment, then Xxxxxx shall extend additional coverage to such
other equipment manufacturer's warranty equal to the differential in time
between the expiration of the other manufacturer's warranty and the duration
of Xxxxxx' manufactured equipment warranty applicable to such order. Xxxxxx
shall repair, replace or refund the purchase price of, at Xxxxxx'
sole option, such other manufacturer's defective part(s) within sixty (60) days
after receipt of such parts by Xxxxxx in accordance with the below specified
procedures, at Xxxxxx' own expense, exclusive, however, of cost of labor by the
Customer's own employees, agents or contractors in identifying, removing or
replacing the defective part(s) of the product.
A written authorization to return products to Xxxxxx under this warranty must
be obtained from a Xxxxxx representative prior to making shipment to Xxxxxx'
plant, and all returns shall be shipped freight prepaid. Collect shipments
will not be accepted, but Xxxxxx will prepay return freight charges on
repaired and replaced products found to be actually defective.
The warranty provided herein does not cover damage, defects, malfunctions or
service failures caused by:
(1) Customer's failure to follow Xxxxxx' environmental, installation, operation
or maintenance specifications or instructions;
(2) Modifications, alterations or repairs made other than by Xxxxxx;
(3) Customer's mishandling, abuse, misuse, negligence, or improper storage,
servicing or operation of the Equipment (including without limitation use with
incompatible equipment); or
(4) Power failures, surges, fire, flood, accident, actions of third parties or
other like events outside Xxxxxx' control. Repairs necessitated during the
warranty period by any of the foregoing causes may be made by Xxxxxx, and
the Customer shall pay Xxxxxx' standard charges for time and materials,
together with all shipping and handling charges arising from such repairs.
B) SOFTWARE WARRANTY AND LICENSE
(1) LICENSE. Xxxxxx grants to Customer a non-exclusive, non-transferable
license to use the software and related documentation ("Software") provided
hereunder. The Software may include software and documentation that are owned
by third parties and distributed by Xxxxxx under license from the owner. If
Customer is a reseller of the software purchased under this agreement, this
license is assignable only to Customer's customer, subject to Xxxxxx' written
authorization and only if the end customer is bound in writing to the Terms and
Conditions of this license. Customer shall retain a copy of such end Customer
Agreement for Xxxxxx' inspection.
(2) COPIES. Customer shall not make any copies of the Software, except for
a single archival copy solely for internal purposes.
(3) CONFIDENTIALITY. Customer shall maintain the confidentiality of the
Software and shall not sub-license, sell, rent, disclose, make available, or
otherwise communicate the Software to any other person, or use the Software
except as expressly authorized in writing by Xxxxxx.
(4) TITLE. The Software and all copies thereof will at all times remain
the sole and exclusive property of Xxxxxx or its licensor, as applicable, and
Customer shall obtain no title to the Software.
(5) COPYRIGHT. Customer shall reproduce all copyright notices and any
other
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proprietary legends on any copy of the Software made by Customer.
(6) ALTERATION. Customer shall not modify, disassemble, or decompile the
Software.
(7) MEDIA. If Customer sells or otherwise disposes of Customer owned
media on which the software is fixed, such media must be erased before any sale
or disposal.
(8) WARRANTY. Xxxxxx does not warrant that the operation of the Software
will be error free. Xxxxxx will use reasonable efforts to correct any defects
reported to Xxxxxx in writing within twenty-four (24) months of the date of
shipment, exclusive of defects caused by physical defects in Software disks due
to mishandling, operator error or interfacing other systems not approved by
Xxxxxx.
c) LIMITATIONS
LIABILITY OF XXXXXX FOR BREACH OF ANY AND ALL WARRANTIES HEREUNDER IS EXPRESSLY
LIMITED TO THE REPAIR, REPLACEMENT OR REFUND OF THE PURCHASE PRICE OF DEFECTIVE
PRODUCTS AS SET FORTH IN THIS SECTION, AND IN NO EVENT SHALL XXXXXX BE LIABLE
FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES BY REASON OF ANY BREACH OF
WARRANTY OR DEFECT IN MATERIALS OR WORKMANSHIP. XXXXXX SHALL NOT BE
RESPONSIBLE FOR REPAIR, REPLACEMENT REFUND OF PURCHASE PRICE OF PRODUCTS WHICH
HAVE BEEN SUBJECTED TO NEGLECT, ACCIDENT OR IMPROPER USE, OR WHICH HAVE BEEN
ALTERED BY OTHER THAN AUTHORIZED XXXXXX PERSONNEL. THE FOREGOING WARRANTIES ARE
IN LIEU OF ALL OTHER WARRANTIES WHETHER ORAL, WRITTEN, EXPRESSED, IMPLIED, OR
STATUTORY. IN PARTICULAR, THE IMPLIED WARRANTIES OF FITNESS FOR PARTICULAR
PURPOSE AND MERCHANTABILITY ARE HEREBY DISCLAIMED AND SHALL NOT BE APPLICABLE
EITHER FROM XXXXXX OR ANY OTHER EQUIPMENT OR SOFTWARE MANUFACTURER. XXXXXX'
WARRANTY OBLIGATIONS AND CUSTOMER'S REMEDIES THEREUNDER ARE SOLELY AND
EXCLUSIVELY AS STATED HEREIN. IN NO CASE SHALL XXXXXX BE LIABLE FOR INDIRECT
KINDS OF DAMAGES, INCLUDING BUT NOT LIMITED TO SPECIAL, INCIDENTAL, AND
CONSEQUENTIAL DAMAGES, OR LOSS OF CAPITAL, REVENUE, OR PROFITS. IN NO EVENT
SHALL XXXXXX' LIABILITY TO CUSTOMER, OR ANY PARTY CLAIMING THROUGH CUSTOMER, BE
IN EXCESS OF THE ACTUAL SALES PRICE PAID BY CUSTOMER FOR ANY ITEMS SUPPLIED
HEREUNDER.
7. TITLE AND RISK OF LOSS
Risk of loss for all Equipment sold under this Agreement shall pass to Customer
at time of delivery as defined herein. Customer grants to Xxxxxx a security
interest in the Equipment covered by this Agreement in the amount of the unpaid
balance of the purchase price until payment in full of the purchase price at
which time title in the Equipment will pass in accordance with the terms and
conditions set forth herein. A financing statement may be filed with the
appropriate public authorities and Customer agrees to sign any such financing
statements or other documents tendered to it by Xxxxxx from time to time to
protect Xxxxxx' security interest.
8. EXPORT AND RE-EXPORT RESTRICTIONS
Performance and delivery of the equipment, documents, services and Software sold
or delivered hereunder are subject to export control laws and regulations of the
United States and/or Canada, as applicable, and conditioned upon receipt of
required U.S. and/or Canadian Government licenses and approvals by Xxxxxx.
Customers shall not export products or technical data delivered hereunder from
the United States or Canada without complying with regulations of the Bureau of
Export Administration of the United States Department of Commerce and/or the
Export Controls Division of the Canadian Department of Foreign Affairs and
International Trade, as applicable. Customers shall not re-export the products
and technical data delivered hereunder from the country of delivery or to any
facility engaged in the design, development, stockpiling,
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manufacturing or use of missile, chemical or biological weapons without fully
complying with the regulations of the above United States and/or Canadian
government agencies.
9. EXCUSABLE DELAY
Xxxxxx shall be excused from performance under the Purchase Order and not be
liable to Customer for delay in performance attributable in whole or in part to
any cause beyond its reasonable control, including but not limited to, actions
or inactions of government whether in its sovereign or contractual capacity,
judicial action, war, civil disturbance, insurrection, sabotage, act of a public
enemy, labor difficulties or disputes, failure or delay in delivery by Xxxxxx'
suppliers or subcontractors, transportation difficulties, shortage of energy,
materials, labor or equipment, accident, fire, flood, storm or other act of God,
or Customer's fault or negligence.
In the event of an excusable delay, Xxxxxx shall make reasonable efforts to
notify Customer of the nature and extent of such a delay and Xxxxxx (i) will be
entitled to a schedule extension on at least a day-for-day basis, (ii) in the
event of Customer's fault or negligence, will be also entitled to an equitable
adjustment in the price of this contract. Notwithstanding any other term
contained herein, in the event an excusable delay occurs and continues for a
period of ninety (90) days or longer, ART shall have the right to immediately
terminate this Agreement or any Purchase Order given pursuant to the Agreement
without further liability to Xxxxxx.
10. TERM AND TERMINATION
This Agreement shall continue in effect for one (1) year from the date hereof at
which time it will terminate, unless terminated earlier pursuant to this Article
12. Renewal is subject to mutual written agreement signed by both parties.
Cancellation of any Purchase Order hereunder will be accepted only upon the
specific written approval of Xxxxxx and is subject to standard Xxxxxx
cancellation charges of 25 % if cancellations is received 30 days after receipt
of order from ART, provided however, that ART may cancel any Purchase Order
without the approval of Xxxxxx and without incurring cancellation charges if the
delivery of Products under such Purchase Order is delayed, or expected to be
delayed, by ninety (90) days or more from the original delivery date.
In the event that Customer shall become liquidated, dissolved, bankrupt or
insolvent, or shall take any action to be so declared, or shall suffer any such
action brought by another, Xxxxxx shall have the right to terminate this
Agreement and all Purchase Orders immediately and may stop shipment of any
Products in transit.
Either party may terminate this Agreement immediately upon notice in writing to
the other party:
a) if the other party shall breach any provision of this Agreement in any
material respect and such breach remains unremedied thirty (30) days after
notice thereof from the non-breaching party;
b) in the event that the other party breaches any material term, condition
or covenant of the PCS Marketing Agreement referenced in Section 1 above and the
other party fails to cure any default or breach within thirty (30) days of
receipt of written notice of such breach from the non-breaching party; or
c) in the event that the other party has caused the PCS Marketing
Agreement referenced in Section 1 above to be terminated.
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The right of termination provided herein is absolute and neither party
shall be liable to the other for damages or otherwise by reason of such
termination.
11. INFRINGEMENT INDEMNIFICATION
Customer agrees to promptly notify Xxxxxx in writing of any notice, suit, or any
action against Customer based upon a claim that the Product infringes a U.S.
patent, copyright, trademark, or trade secret of a third party. Xxxxxx will
defend at its expense any such action, except as excluded below, and shall have
full control of such defense including all appeals and negotiations, and will
pay all settlement costs, or damages awarded against Customer, but Xxxxxx shall
not be liable to Customer for special, incidental, indirect or consequential
damages. In the event of such notice, suit or action, Xxxxxx will at its
expense procure for the Customer the right to continue using the product, or
modify the Product to render such non-infringing, or accept return and replace
such with substantially equivalent non-infringing equipment, or accept return of
the Product and refund or credit to Customer the amount of the original purchase
price, less a reasonable charge for depreciation and damage.
The preceding agreements by Xxxxxx in this section shall not apply to any
Product or portion thereof manufactured to specifications furnished by or on
behalf of Customer, or to any infringement arising out of the use of the Product
in combination with other equipment or software not furnished by Xxxxxx, or to
use in a manner not normally intended, or to any patent, copyright, trademark or
trade secret in which Customer, or subsidiary or affiliate thereof, has a direct
or indirect interest, or if customer has not provided Xxxxxx with prompt notice,
authority, information and assistance necessary to defend the action. The
foregoing states the entire liability of Xxxxxx for patent, copyright, trademark
and trade secret infringements by the Product or portion thereof.
The rights and obligations of the parties under this Section shall survive
termination of this Agreement.
12. TECHNICAL DATA AND INVENTION
Unless specifically agreed to by Xxxxxx and identified and priced in this
contract as a separate item or items to be delivered by Xxxxxx (and in that
event, except to the extent so identified and priced), the sale of goods
hereunder confers on Customer no right in, license under, access to, or
entitlement of any kind to any of Xxxxxx' technical data including but not
limited to design, process technology, software and drawings, or to Xxxxxx'
inventions (whether or not patentable) irrespective of whether any such
technical data or invention or any portion thereof arose out of work performed
under or in the course of this contract, and irrespective of whether Customer
has paid or is obligated to pay Xxxxxx for any part of the design and/or
development of the goods.
Xxxxxx shall not be obliged to safeguard or hold confidential any data whether
technical or otherwise, furnished by Customer for Xxxxxx' performance of this
contract unless (and only to the extent that) Customer and Xxxxxx have entered
into a separate written confidential agreement.
Customer shall not violate Xxxxxx' copyright of documents or software or
disclose Xxxxxx' confidential or proprietary data to others without Xxxxxx
written permission.
13. ASSIGNMENT
Neither party may assign this agreement in whole or in part without the prior
written consent signed by an officer of the other party. Such consent shall not
be unreasonably withheld.
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14. GOVERNING LAW, VENUE, AND JURISDICTION
This Agreement will be governed by and construed in accordance with the laws of
the State of California. The parties agree that any action to enforce any
provision of this Agreement or arising out of or based upon this Agreement or
the business relationship between Xxxxxx and Customer will be brought in a local
or Federal court of competent jurisdiction in the State of California.
15. ENFORCEABILITY
If any provision of this Agreement shall be held to be invalid, illegal or
unenforceable, the validity, legality or enforceability of the remaining
provisions shall in no way be affected or impaired.
16. NOTICES
All notices shall be in writing and shall be delivered or sent by registered,
certified or express mail, return receipt requested, to the addresses indicated
in this Agreement or to such other addresses as the parties shall specify by
giving notice pursuant hereto. A copy of all notices shall be sent to Xxxxxx
Corporation, Farinon Division, 000 Xxxx Xxxxxxx Xxxxx, Xxxxxxx Xxxxxx, XX 00000,
Attention: Manager of Contracts, and to W. Xxxxxxxx Xxxxxxx, Xx. Executive Vice
President and General Counsel, 0000 X Xxxxxx, XX, Xxxxx 000 Xxxxxxxxxx, XX
00000.
17. INDEMNIFICATION
a) INDEMNIFICATION OF ART BY XXXXXX
Xxxxxx shall indemnify ART against, and hold ART harmless from all liabilities,
demands, claims, damages, losses, demands, costs, judgments and expenses
(including reasonable attorneys' fees) arising out of or in connection with
arising out of or relating to the installation, operation, or use of the
Products for personal injury or damage to tangible property, caused by the
negligent acts or omissions of Xxxxxx or Xxxxxx'x employees, agents or invitees.
In no event shall ART's employees, agents or invitees be deemed to be employees,
agents or invitees of Xxxxxx.
b) INDEMNIFICATION OF XXXXXX BY ART
ART shall indemnify Xxxxxx against, and hold Xxxxxx harmless from all
liabilities, demands, claims, damages, losses, demands, costs, judgments and
expenses (including reasonable attorneys' fees) to the extent they arise out of
or are in connection with or relate to the installation, operation, or use of
the Products for personal injury or damage to tangible property, caused by the
negligent acts or omissions of ART or ART's employees, agents or invitees. In
no event shall Xxxxxx'x employees, agents or invitees be deemed to be employees,
agents or invitees of ART.
c) DUTY TO NOTIFY AND ASSIST
If any claim arises to which the provisions of this Section may be applicable,
the party against whom such claim is made shall notify the other party
immediately upon learning of the claim. If it appears that the other party may
be obligated to provide indemnification as a result of such claim, the other
party, in its discretion, may settle or compromise the claim
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or retain counsel of its own choosing and control and prosecute the defense
against such claim. In no event shall the party against whom the claim is
asserted have the right to pay, settle or compromise such claim without the
prior written consent of the party who may be obligated to indemnify under
this Section and the parties hereto agree that they will not unreasonably
withhold consent to such consent to payment, settlement or compromise. The
party against whom the claim is asserted shall provide the other party such
assistance as may be reasonable in the defense and disposition of such claim.
The rights and obligations of the parties under this Section shall survive
termination of this Agreement.
18. LIMITATION OF LIABILITY
NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS CONTRACT, UNDER NO CIRCUMSTANCES
SHALL XXXXXX BE LIABLE TO CUSTOMER OR ANY THIRD PARTY CLAIMING UNDER CUSTOMER
FOR SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, AS A RESULT OF A
BREACH OF ANY PROVISION OF THIS CONTRACT.
19. ENTIRE AGREEMENT
This Agreement supersedes all previous communications, transactions, and
understandings, whether oral, or written, and constitutes the sole and entire
agreement between the parties pertaining to the subject matter hereof. No
modification or deletion of, or addition to these terms shall be binding on
either party unless made in writing and signed by a duly authorized
representative of both parties.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their duly authorized representatives as of the day and year first stated
above.
ADVANCED RADIO TELECOM CORPORATION
BY: /s/ Xxxxxxx X. Xxxxxxx
______________________________
NAME: /s/ Xxxxxxx Xxxxxxx
___________________________
TITLE: V.P. Bus. Development
___________________________
XXXXXX CORPORATION
FARINON DIVISION
BY: /s/ J. Xxxxxxx Xxxxxxxx
______________________________
NAME: /s/ J. Xxxxxxx Xxxxxxxx
___________________________
TITLE: Division Controller
___________________________
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[Annexes A, B and C omitted due to confidential treatement]
