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EXHIBIT 10.19
CONFIDENTIAL TREATMENT REQUESTED
PURCHASE AGREEMENT
THIS AGREEMENT is made as of July 23, 1999 by and between ADAPTIVE BROADBAND
CORPORATION ("Adaptive Broadband"), a Delaware corporation with a principal
office at 0000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000, and I(3)S, INC. ("Buyer"),
a Texas corporation with a principal office at 0000 Xxxxxxxxx Xxxxx, Xxxxxx, XX
00000.
RECITALS:
A. Adaptive Broadband is a developer, manufacturer and supplier of wireless
telecommunications equipment.
B. Buyer desires to provide wireless communications network services in
the U.S. ("Territory") for residential non-commercial multiple dwelling
unit ("MDU") markets ("Markets").
C. Adaptive Broadband and Buyer each desire for Adaptive Broadband to sell and
Buyer to purchase such products for use in connection with those services,
all on the terms and conditions set forth in this Agreement.
PROVISIONS:
NOW, THEREFORE, in consideration of the mutual representations, warranties and
covenants contained in this Agreement, the parties agree as follows:
1. SCOPE OF AGREEMENT.
a. Equipment and Services. Buyer agrees to buy and Adaptive Broadband
agrees to sell to Buyer the products described in Exhibit A attached
to this Agreement ("Products") and the services described in Exhibit B
attached to this Agreement ("Services").
b. Purchase Orders. Buyer may issue purchase orders for any Products or
Services ("Purchase Orders") to Adaptive Broadband via mail or
facsimile, in form and content acceptable to Adaptive Broadband.
Purchase orders will be considered accepted by Adaptive Broadband when
expressly acknowledged and accepted by Adaptive Broadband in writing
within the term of this Agreement. Subject to the exception in the
following sentence, the terms and conditions of this Agreement will
govern the relationship between the parties and each Purchase Order.
Therefore, each Purchase Order will automatically be deemed to include
all the terms and provisions of this Agreement, and any contractual
terms and conditions contained in a Purchase Order or its reverse side
will not apply and will be null and void, except to the extent that
Adaptive Broadband expressly and specifically accepts such other or
additional terms and conditions in writing. Buyer shall provide to
Adaptive Broadband firm purchase orders 120 days in advance of Buyer's
intended delivery, which purchase orders will become effective only
upon written acknowledgment and acceptance by Adaptive Broadband.
Buyer may make one change in quantity under a given purchase order,
+/- 20% of the dollar amount under that order, by written notice to
Adaptive Broadband at least 30 days before the delivery date contained
in Adaptive Broadband's order acceptance.
2. PRICING AND PAYMENT.
a. Pricing. All prices are FOB Adaptive Broadband's relevant U.S.
facility or its supplier's dock, as may be specified by Adaptive
Broadband, and are valid for the term of this Agreement. The first
quoted prices for Products and Services are set forth in Exhibit A and
Exhibit B, respectively. For so
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long as Buyer is in material compliance with its material obligations
under this Agreement, the prices set forth in Exhibit A for Products
will be at least as favorable as those offered by Adaptive Broadband
to customers purchasing Products in substantially like quantities on
substantially like delivery schedules.
b. Payment. All payments by Buyer will be made to Adaptive Broadband
pursuant to the payment terms and conditions set forth in Adaptive
Broadband's Standard Terms and Conditions of Sale, attached to this
Agreement as Exhibit C.
3. QUANTITY COMMITMENTS.
a. Firm Commitment. Buyer agrees to purchase a minimum of * AB-Access
units (in any combination of access points and subscriber units)
during the term of this Agreement in accordance with Exhibit A,
provided (i) the field trial verification and Acceptance Test
Procedure described in Section 8 and both Exhibit E and Exhibit F are
completed and materially satisfied in accordance with their terms,
(ii) Adaptive Broadband is in material compliance with the material
provisions of this Agreement, and (iii) Adaptive Broadband receives
FCC certification for the Products.
b. Initial Purchase Order. Buyer will issue a Purchase Order within 30
days of the effective date of this Agreement for one access point and
three subscriber units for use in the field trial verification of the
Product outlined in Exhibit E in accordance with the Acceptance Test
Procedure and parameters set forth in Exhibit F.
c. Forecasts. Each quarter (as specified by Adaptive Broadband from time
to time), Buyer will provide Adaptive Broadband with a non-binding
rolling quarterly forecast covering the period of 12 calendar months
beginning with the quarter in which that forecast is provided. Each
forecast will specify the number of units of Products (separating
access points and subscriber units) which Buyer anticipates it will
purchase during each quarter of that 12-month period.
4. SOFTWARE LICENSE.
a. License. Adaptive Broadband grants to Buyer a royalty-free, perpetual,
and non-exclusive license to use the Software (defined below) within
the Territory and Market in connection with the Products and Buyer's
wireless communications network services. Buyer's right to use the
Software shall be subject to the terms and conditions set out in
Exhibit D.
b. Sub-License. Adaptive Broadband grants to Buyer a royalty-free,
perpetual, and non-exclusive license to sub-license the Software to
Buyer's customers and other parties contracting with Buyer for the
delivery, of broadband wireless data access, each of which utilizes
Products in the Territory and Market in connection with Buyer's
wireless communications network services. When granting to customers
the right to use Software, Buyer shall incorporate in such
sub-license terms that offer no less degree of protection to Adaptive
Broadband's (or its licensor's) interest in the Software as those set
out in Exhibit D.
c. "Software". As used in this Agreement, "Software" means any program in
machine readable code (howsoever provided to Buyer), and intended to
be loaded into the memory of a Product's processor unit(s) which
provides operating instructions and user-related application
instructions (as well as associated documentation used to describe,
maintain and use such programs), incorporated in any of the Products
by Adaptive Broadband or supplied to Buyer by Adaptive Broadband for
use on or in connection with any of the Products; however, Software
shall not mean any source code.
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d. Third Party Software. The Products and Software include software which
is licensed by third parties to Adaptive Broadband ("Third-Party
Software"). Adaptive Broadband will provide Buyer with a copy of the
requirements and restrictions of all licenses which apply to existing
and then future Third-Party Software. Each party ("Licensee") agrees
to defend, indemnify and hold the other ("Other Party") harmless from
and against any loss, damages, costs, fees (including reasonable
attorneys' fees) and expenses awarded against or incurred by the Other
Party as a result of the Licensee's failure to comply with the
requirements and restrictions of Third-Party Software licenses and
sub-licenses applicable to the Licensee pursuant to the terms of the
relevant license or sublicense, or as a result of the Licensee's
failure to comply with the reasonable requests of the Other Party in
the Other Party's efforts to comply with the Third-Party Software
license or sub-license requirements and restrictions imposed upon it.
5. SOFTWARE MAINTENANCE.
a. Notification. Throughout the term of this Agreement and the first 12
months thereafter, each party will promptly notify the other of any
defect or error it becomes aware of in any Product or Software or
documentation.
b. Maintenance. For the 12 months immediately following shipment of
Product and Software ("Software Maintenance Period"), Adaptive
Broadband will provide to Buyer, free of charge, an element management
system and all Software bug fixes which are released by Adaptive
Broadband and made available to the general public solely as a "bug
fix." These will be provided to Buyer for Buyer to load into
previously shipped Products and Adaptive Broadband will provide them
with subsequently shipped Products. Those bug fixes will be governed
by the provisions of this agreement as "Software."
c. Limitations. Adaptive Broadband has no obligation to correct any
defect or error in the Software to the extent it arises from any
improper or unauthorized use or operation of the Software by the Buyer
or its employees or agents, or the adaptation, modification or
alteration of any part of the Software without Adaptive Broadband's
prior consent, or any failure by Buyer to install any corrected
version or any update or improvement of the Software or documentation
supplied by Adaptive Broadband.
d. Third Party Software. Adaptive Broadband will, during the relevant
warranty period, be responsible for maintenance and support of any
Third-Party Software which Buyer may use in conjunction with the
Software or Products. Thereafter, Adaptive Broadband will quote the
price and details for extended warranty coverage upon request.
e. Updates. Buyer acknowledges that updates may involve the use of new
versions of Third-Party Software or operating systems. Adaptive
Broadband shall not be responsible for the cost of any new Third-Party
Software required by Buyer or any related charges if Buyer decides to
utilize an update provided by Adaptive Broadband.
f. Replacements. Buyer shall upon written request by Adaptive Broadband
return to Adaptive Broadband the replaced version of any updated
Software and documentation.
g. Hardware Updates. Subject to Exhibit A's provisions regarding
competitive technology, updated Product hardware may become available
from time to time and will be supplied to Buyer upon Adaptive
Broadband's terms.
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6. GENERAL TERMS AND CONDITIONS.
Adaptive Broadband's Standard Terms and Conditions of Sale is attached to
this Agreement as Exhibit C and is hereby incorporated by reference into
this Agreement and made a part hereof.
7. CHANGES, MODIFICATIONS AND ENHANCEMENTS.
Adaptive Broadband will provide the Product enhancements as and how
described in Exhibit E attached to this Agreement and, with those
enhancements, the Products will be covered under the product warranty set
forth in Exhibit C. Throughout the term of this Agreement, Adaptive
Broadband will maintain the availability of those enhancements in its
then current generally available Product (except as otherwise agreed to by
Adaptive Broadband and Buyer in writing), subject only to materials and
technology availability. Except as otherwise specifically provided in
Exhibit E, any changes, modifications, or enhancements of the Products
requested by Buyer which affects either software or hardware modules
contained therein will be quoted by Adaptive Broadband separately; no
change order will be implemented until the parties mutually agree in
writing to the price for this change. Any changes, modifications, or
enhancements of the Products made by Adaptive Broadband at its own
initiative and made a part of its then standard Product will become part
of the Product without additional charge to Buyer. Any changes,
modifications, or enhancements of the Products made by Adaptive Broadband
at its own initiative which are not made a part of its then Standard
Product but are instead offered as an optional feature or upgrade will be
available to Buyer at an additional agreed upon price.
8. ACCEPTANCE TESTING AND FIELD TRIALS.
a. Exhibit E contains the details of the field trials procedures and
parameters applicable to the Products purchased by Buyer, which tests
will be performed at a Buyer location within the continental United
States. Exhibit F contains the details of the acceptance test
procedures, specifications, and parameters applicable to Products
purchased by Buyer. Adaptive Broadband will give Buyer reasonable
notice of the date of the test and Buyer will make available all
staff, materials and facilities which Adaptive Broadband reasonably
requires for the performance of the test. Buyer may not reject any
Product which has successfully completed all acceptance tests in
accordance with Exhibit F and field trials in accordance with Exhibit
E. If an acceptance test is not successfully completed in accordance
with Exhibit F, and/or if a field trial is not successfully completed
in accordance with Exhibit E, then Adaptive Broadband and Buyer will
mutually agree within the ensuing 10 days on a later date when the
relevant test shall be repeated and the provisions of the relevant
exhibit will apply to each repeat test conducted. The date on which
the field trials are successfully completed in accordance with Exhibit
E is referred to as the "Trial Completion Date."
b. All acceptance tests will be at Buyer's location in Irving, Texas. Any
inspections or testing beyond that those set forth in Exhibit F
(including any secondary or follow-up inspections or tests) or which
otherwise exceed, in scope or duration, those normally provided by
Adaptive Broadband in like circumstances, will be subject to approval
by Adaptive Broadband, be at additional cost to Buyer, may be deemed
by Adaptive Broadband to be an event of force majeure for Adaptive
Broadband's benefit to the extent they affect Adaptive Broadband's
and/or Buyer's other obligations hereunder, and Adaptive Broadband may
impose cancellation or rescheduling charges accordingly.
c. Buyer agrees that it will initiate the acceptance tests sets forth in
Exhibit F within 10 business days after delivery of Adaptive
Broadband's designated final version of the Product enhancements with
appropriate network management support, and Buyer will complete those
acceptance tests within 5 business days thereafter. Buyer agrees that
it will initiate the field trials set forth in Exhibit E within 10
business days after the successful completion of the Exhibit F
acceptance tests, and Buyer will complete those field trials within 90
days thereafter. Those tests and trials which are not completed
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successfully will be repeated as necessary in accordance with the
provisions of this Agreement including without limitation Section
8(a). Subject to the foregoing, Buyer will use commercially reasonable
efforts to promptly, successfully and satisfactorily complete all
tests and trials, and any and all repeat tests and trials.
9. DOCUMENTATION.
Adaptive Broadband will provide to Buyer its standard documentation in
Adaptive Broadband's standard forms, formats, and quantities based on the
size and scope of the relevant order. Additional copies, and any changes in
this documentation required by customization of the Products or software
changes made in response to Buyer requests will be at an additional charge.
10. PRE-APPROVAL SHIPMENTS.
Buyer may desire to have Adaptive Broadband build and ship Products for
actual use in the Territory and Market without Adaptive Broadband having
FCC Product certification and/or without Buyer having a license required
by it as a Product operator, whether from the FCC or other or additional
licensing and approval authorities.
a. In order to induce Adaptive Broadband to do build and ship Products
for actual use in the Territory and Market without Adaptive Broadband
having FCC Product certification, Buyer agrees as follows: (i) Buyer
will assist Adaptive Broadband in any labeling requirements, (ii) If
the Product does not get all requisite approvals, licensing and
certification on the first round and without additional input from
Adaptive Broadband, Buyer will honor Adaptive Broadband's reasonable
requests regarding the scope of the use of those Products until that
requisite approval, licensing and certification is secured, (iii) If
Adaptive Broadband deems it necessary or appropriate by reason of the
approval and/or licensing process for Products to be returned to
Adaptive Broadband, whether for modification or replacement, then all
costs and expenses associated with shipping to Adaptive Broadband and
back to Buyer, as well as all costs and expenses associated with that
modification or replacement, will be borne by Buyer, (iv) These and
any other terms for the premature building and shipping of Products
are binding upon Buyer but are subject to the prior approval,
requirements, and business judgment of Adaptive Broadband in each
instance.
b. In order to induce Adaptive Broadband to do build and ship Products
for actual use in the Territory and Market without Buyer having a
license required by it as a Product operator, whether from the FCC or
other or additional licensing and approval authorities, Buyer agrees
as follows: (i) If Adaptive Broadband deems it necessary or
appropriate by reason of the approval and/or licensing process for
Products to be returned to Adaptive Broadband, whether for
modification or replacement, then all costs and expenses associated
with shipping to Adaptive Broadband and back to Buyer, as well as all
costs and expenses associated with that modification or replacement,
will be borne by Buyer, (ii) If Adaptive Broadband deems it necessary
or appropriate for Adaptive Broadband to send someone on-site to
facilitate the licensing and/or approval process, then all costs and
expenses associate therewith will be borne by Buyer, (iii) Buyer will
defend, indemnify and hold Adaptive Broadband harmless from and
against any and all judgments, fines, amounts paid in settlement,
damages, claims, costs, expenses (including attorneys' fees) and
liabilities incurred and arising out of or related to the premature
shipping and use of Products.
11. CONFIDENTIALITY.
a. Definition of Confidential Information: Each party ("Disclosing
Party") may, either orally, in written form, or otherwise disclose to
the other party ("Recipient") or the Recipient may otherwise obtain
the Disclosing Party's confidential information ("Confidential
Information"). If any of the following
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apply to any information, such information shall not be considered as
Confidential Information: (i) it is or becomes available to the public
through no wrongful act of the Recipient, (ii) it is already in the
possession of the Recipient as evidenced by documentation in the
Recipient's possession, and not subject to any agreement of confidence
between the parties, (iii) it is received from a third party without
any restriction known to the Recipient for the benefit of the
Disclosing Party, or (iv) it is independently developed by the
Recipient without regard to that Confidential Information disclosed by
the Disclosing Party.
b. Use and Care of Confidential Information: Confidential Information
disclosed or obtained hereunder during the term of this Agreement
shall only be used by the Recipient only in the performance of its
obligations or exercise of its rights under this Agreement, and it
shall not be disclosed by the Recipient for a period of three (3)
years from the date of disclosure, except to those employees,
affiliates, advisors, and consultants of the Recipient who have a need
to know and an obligation to treat Confidential Information in
accordance with the provisions of this Agreement. The Recipient may
disclose the Disclosing Party's Confidential Information pursuant to a
requirement of a duly empowered government agency or a court of
competent jurisdiction after due notice and an adequate opportunity to
intervene is given to the Disclosing Party unless such notice is
legally prohibited. Notwithstanding the expiration or early
termination or cancellation of this Agreement, the obligations under
this Section 12(b) shall survive until they expire in accordance with
their terms.
c. Return of Confidential Information: Upon receipt of a written request
from the Disclosing Party, the Recipient shall, at the Disclosing
Party's direction, either return to the Disclosing Party or destroy
all of the Disclosing Party's Confidential Information and so
certify in writing.
12. REPRESENTATIONS, WARRANTIES, AND COVENANTS.
a. By Adaptive Broadband. Adaptive Broadband represents and warrants to
Buyer, and covenants that:
i. Adaptive Broadband has all corporate power and authority to enter
into this Agreement and consummate the transactions contemplated
hereby; and
ii. Adaptive Broadband has all the rights necessary to license the
rights and to supply the Products to Buyer as provided in this
Agreement.
iii. Adaptive Broadband covenants that, for the two year period
beginning the Trial Completion Date and during that two year
period for so long as Buyer is and remains in material compliance
with the material provisions of this Agreement, Adaptive
Broadband will not sell "AB-Access Product With Data Envelope
Interface Enhancements" (defined below) with the Functionalities
(defined below) enabled to either: (A) any company which competes
with Buyer by providing broadband wireless data access to MDUs
and which Adaptive Broadband Knows, at the time it accepts the
relevant purchase order, intends for those Products to be used in
connection with broadband wireless data access services in MDUs
in the United States; or (B) any company which Adaptive
Broadband Knows, at the time it accepts the relevant purchase
order, will re-sell those Products to companies described in
subsection 12(a)(iii)(A) immediately above.
Notwithstanding the foregoing in this Section 12(a)(iii), that
covenant shall not apply to the sale of AB-Access Product With
Data Envelope Interface Enhancements with the Functionalities
enabled to either: (X) any telecommunications service provider
which at the time it seeks to purchase AB-Access Product With
Data Envelope Interface Enhancements Products provides
telecommunications services other than Product services, or (Y)
any other company not specifically included within the class of
companies covered by Section 12(a)(iii)(A) or (B).
As used in this Section 12(a)(iii), Adaptive Broadband "Knows" of
a fact only if one of its corporate officers has timely evidence
of the fact, without any duty to investigate. "AB-Access
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Product with Data Envelope Interface Enhancements" means a
Product configured with the following functionalities
("Functionalities"):
For subscriber unit Products:
o Pass-through forwarding of all upstream traffic
o Isolation of layer 2 data streams for upstream traffic
For access point Products:
o Pass-thru upstream forwarding of all upstream traffic
o Layer two learning bridge functionality applied to all
downstream traffic
o Layer two learning bridge implementation using the
multiplexing of a single 1483 bridge mapping multiple ATM
PVCs among all learned addresses contained in the layer two
bridge table.
iv. Adaptive Broadband shall not utilize, in any manner whatsoever
the corporate names or any trademark or trade name or copyright
rights belonging to Buyer in connection with any equipment or
service without the prior written approval of Buyer. This
requirement of consent will survive the expiration or early
termination of this Agreement.
v. Except as otherwise specifically provided in this Agreement, all
approvals, permits, and authorizations from all applicable
parties which are necessary for the performance by Adaptive
Broadband of its obligations under this Agreement, and in
furtherance of its purposes set forth in the recitals above, will
be timely obtained and maintained by Adaptive Broadband at its
own expense.
vi. Adaptive Broadband is free to make this Agreement and the making
hereof and/or performance hereunder by it or any of its officers,
directors, employees, contractors, consultants, and agents will
not violate the legal and/or equitable rights or interests of
any third party.
b. By Buyer. Buyer represents and warrants to Adaptive Broadband and
covenants that:
i. Buyer has all corporate power and authority to enter into this
Agreement and consummate the transactions contemplated hereby;
ii. Buyer shall not utilize, in any manner whatsoever the corporate
names or any trademark or trade name or copyright rights
belonging to Adaptive Broadband or other Product manufacturers in
connection with any equipment or service without the prior
written approval of Adaptive Broadband or the relevant
manufacturer. This requirement of consent will survive the
expiration or early termination of this Agreement. Buyer will
not contest the validity of any of Adaptive Broadband's or other
Product manufacturer's patents, trademarks, trade names or
copyrights used in connection with Products; and
iii. All approvals, permits, and authorizations from all applicable
parties which are necessary for the performance by Buyer of its
obligations under this Agreement, and in furtherance of its
purposes set forth in the recitals above, will be timely obtained
and maintained by Buyer at its own expense.
iv. Buyer is free to make this Agreement and the making hereof and/or
performance hereunder by it or any of its officers, directors,
employees, contractors, consultants, and agents will not violate
the legal and/or equitable rights or interests of any third
party.
13. TERM AND TERMINATION.
a. Term. This Agreement will be effective as of the date first written
above and will continue for the period ending sixty months after the
Trial Completion Date, subject to earlier termination in accordance
with this Agreement.
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b. Termination. Adaptive Broadband and Buyer each may by written notice
to the other terminate this Agreement:
i. If a receiver is appointed for either party or its property:
ii. If either party becomes insolvent or unable to pay its debts as
they mature in the ordinary course of business or makes an
assignment for the benefit of its creditors:
iii. If any proceedings are commenced by or for either party under
bankruptcy, insolvency, or debtor's relief law, and those
proceedings will not be vacated or set aside or stayed within
ninety (90) days from the date of the commencement thereof:
iv. If either party is sequestered by any government authority:
v. If either party is liquidated, dissolved, or sells all or
substantially all of its assets:
vi. If either party defaults in the performance of any material term
or condition of this Agreement and that default continues
unremedied to the non-defaulting party's satisfaction for a
period of thirty (30) days after notice of default; provided any
deviation from the terms of this Agreement which is required in
order to be in compliance with the applicable laws, rules, or
regulations of any government or subdivision thereof will not be
considered a default hereunder:
c. Upon Expiration or Termination. Upon expiration or early termination
of this Agreement for any reason, and notwithstanding that expiration
or termination:
i. All provisions of this Agreement will survive with respect to
each order accepted by Adaptive Broadband prior to the effective
date of the expiration or termination until each party's
obligations with respect to that order is either satisfied or
waived:
ii. Termination of this Agreement shall be without prejudice to the
rights and remedies of the party which may have accrued to
either party as at the date of termination.
iii. Notwithstanding the expiration or early termination of this
Agreement, Section 11 ("Term and Termination") and the provisions
of Exhibits C ("Terms and Conditions"), D ("Software License and
Sub-Licensing"), and F ("Acceptance Testing") as they apply to
any outstanding Purchase Orders shall remain in full force and
effect and Adaptive Broadband shall still make available in
accordance with the terms hereof Services to which Buyer is
otherwise entitled in respect of Products supplied to Buyer prior
to the date of termination.
iv. Notwithstanding the expiration or early termination of this
Agreement, Section 12 ("Confidential Information") will survive
for a period of 3 years after the date of disclosure.
v. Buyer will within 30 days after expiration or termination return
to Adaptive Broadband in (at Buyer's sole cost and expense) (or
at Adaptive Broadband's request eradicate or destroy): all
literature, manuals and materials supplied to it by Adaptive
Broadband and which are in Buyer's possession; all equipment
provided to it by Adaptive Broadband and which Buyer did not
purchase, in the condition in which it was sent by Adaptive
Broadband; all tangible and intangible embodiments of Adaptive
Broadband intellectual property, including software (except that
which is in Products purchased by Buyer); all Information covered
under Section 3.3; and any other items which Adaptive Broadband
may reasonably request.
14. MISCELLANEOUS.
a. Sole Agreement; Amendment; Waivers. This Agreement (together with its
Exhibits and their attachments which are hereby incorporated into this
Agreement by reference and made a part hereof) contains the entire
understanding between Adaptive Broadband and Buyer with respect to its
subject matter and supersedes all prior discussions, agreements and
understandings between them with respect to that subject matter. All
amendments hereto and all agreements between the parties supplemental
to this Agreement must be in writing and signed by the parties hereto.
The waiver by either party of a breach or violation of any provision of
this Agreement must be in writing and will not operate or be construed
as a waiver of any subsequent breach or violation.
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b. Independent Contractor. Each party acknowledges and agrees that this
Agreement establishes an independent contractor relationship and each
disclaims the existence of any employer/employee relationship or
partnership or joint venture relationship between them. Neither party
has authority to act for, represent, or bind the other and neither
will take or fail to take any action inconsistent with this
paragraph.
c. Liability and Indemnification. (i) Subject to the provisions of
Sections 5, 7, and 12 of Exhibit C, each party ("Indemnifying Party")
agrees to indemnify and hold the other party and its successors and
assigns ("Indemnified Party") harmless from and against any and all
judgments, fines, amounts paid in settlement, damages, claims, costs,
expenses (including reasonable attorneys' fees) and liabilities
actually incurred and arising out of or related to the Indemnifying
Party's breach or threatened breach of this Agreement or any act or
omission by any of the Indemnifying Party and its agents, employees,
successors and assigns. (ii) The extent of Adaptive Broadband's
liabilities to Buyer are solely and exclusively set forth in
sections 5, 7, and 12 of Exhibit C. (iii) Neither Adaptive Broadband
nor Buyer will be liable under this Agreement for any consequential
damage including loss of clientele, loss of business, loss of data, or
loss of profits. Neither party will be entitled to an indemnity for
goodwill or other compensation upon termination of this Agreement at
any time for any reason.
d. Buyer Affiliates. Notwithstanding the provisions of Section 14(d), if
(i) Buyer is or becomes a party to a definitive written agreement
with a third party for the delivery of broadband wireless data access
and that third party can use Products in connection with that
agreement and the delivery of that access, and (ii) Adaptive Broadband
and that third party enter into a separate definitive written
agreement for that third party's purchase of Products for that planned
use, then each Product purchased by that third party under that
separate Adaptive Broadband agreement will be credited towards the
satisfaction of Buyer's quantity purchase obligations under this
Agreement.
e. Severability. If any provision of this Agreement is determined by a
court of competent jurisdiction to be unenforceable or illegal, then
it will be deemed removed from the other provisions of this Agreement
which will remain in effect.
f. Headings. Headings in this Agreement are included for convenience only
and themselves have no force or effect.
g. Publicity. Neither party shall issue any press release or make any
public announcement relating to this Agreement or its subject matter
without the prior written approval of the other; provided that either
party may make any public disclosure it believes in good faith is
required by applicable law or any listing or trading agreement
concerning its publicly-traded securities (in which case the
disclosing party will use its best efforts to advise the other party
prior to making the disclosure).
h. Order of Precedence. In the event of conflict between any of the
provisions of this Agreement, the terms set forth above shall govern
over Adaptive Broadband's Standard Terms and Conditions.
i. Governing Law and Related Matters. Any dispute or controversy between
the parties regarding or arising out of this Agreement, an Exhibit or
a purchase order which a party wants to resolve in litigation shall be
brought by that party as follows:
i. If the plaintiff is Adaptive Broadband, then (i) it shall
adjudicate its claim, and Buyer shall adjudicate any related
cross-claims and counter-claims, in Dallas County, Texas, the
jurisdiction, venue, and personal jurisdiction to which, for such
claim or claims, the parties irrevocably consent; and (ii) for
those claims, cross-claims and counter-claims, this Agreement,
the Exhibits
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and related purchase orders shall be construed in accordance with
and governed by the internal laws of the State of Texas without
reference to conflict of laws principles.
ii. If the plaintiff is Buyer, then (i) it shall adjudicate its
claim, and Adaptive Broadband shall adjudicate any related
cross-claims and counter-claims, in Santa Xxxxx County,
California, the jurisdiction, venue, and personal jurisdiction to
which, for such claim or claims, the parties irrevocably consent;
and (ii) for those claims, cross-claims and counter-claims, this
Agreement, the Exhibits and related purchase orders shall be
construed in accordance with and governed by the internal laws of
the State of California without reference to conflict of laws
principles.
Buyer will observe and comply with all applicable governmental laws,
rules and regulations. Buyer will promptly indemnify Adaptive
Broadband for all damages, fines, and related expenses (including
attorneys' fees) resulting from or arising out of Buyer's violation
of any such law, rule or regulation or breach of this paragraph.
j. Notices. Except as otherwise provided in this Agreement, all notices,
requests, and other communications under this Agreement will be in
writing and sent by registered post or facsimile addressed to:
If to Adaptive Broadband, to: If to Buyer, to:
Adaptive Broadband Corporation I(3)S, Inc.
0000 Xxxxxxxx Xxxxxx 0000 Xxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000 Xxxxxx, XX 00000
Attn: Sr. VP Broadband Systems Attn: President
Fax: (000) 000-0000 Fax: (000) 000-0000
With a copy to: With a copy to:
Adaptive Broadband Corporation I(3)S, Inc.
0000 Xxxxxxxx Xxxxxx 0000 Xxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000 Xxxxxx, XX 00000
Attn: General Counsel Attn: General Counsel
Fax: (000)000-0000 Fax: (000) 000-0000
Any notice sent by fax shall be deemed to be delivered the next
working day following confirmed transmission, and any notice sent by
post shall be deemed to be delivered five working days following the
date of posting. Either party may change the address under this
section by giving the other party proper notice.
[The rest of this page is intentionally left blank.]
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IN WITNESS WHEREOF, Adaptive Broadband and Buyer each executed and deliver this
Agreement as of the date first written above.
I(3)S, INC. ADAPTIVE BROADBAND CORPORATION
/s/ J. R. PRICE /s/ XXXX XXXXXXXX
------------------------------ ------------------------------
Signature Signature
J. R. Price Xxxx Xxxxxxxx
------------------------------ ------------------------------
Print Name Print Name
CEO/CHAIRMAN CHAIRMAN/CEO
------------------------------ ------------------------------
Title Title
7/23/99 7/23/99
------------------------------ ------------------------------
Date Date
Legal Approval:
--------------------
Date:
-----------------------
Finance Approval:
------------------
Date:
-----------------------
TABLE OF EXHIBITS
Exhibit A - Products, Pricing, and Commitments
Exhibit B - Services and Related Pricing
Exhibit C - Adaptive Broadband's Standard Terms and
Conditions of Sale
Exhibit D - Software License and Sub-License
Exhibit E - Enhancements and Field Trial Verification
Exhibit F - Acceptance Test, Procedures and Parameters
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EXHIBIT A
PRODUCTS, PRICING, AND COMMITMENTS
PRODUCTS: AB-Access UNII point to multi-point radio system (access points and
subscriber units).
AB-Access UNII point-to-point radio system (access points and
subscriber units).
PRICING AND COMMITMENTS: Unit price
------------------------ --------------------
subscriber access
Time frame Quantity Commitment* units points
---------- -------------------- ---------- ------
0-36 months after * units * *
Trial Completion Date
0-60 months after additional * units * *
Trial Completion Date
*Buyer may purchase any combination of Product subscriber units and access
points so long as in the aggregate it has purchased at least that number of
total units required of it by the end of the relevant period.
*Buyer may purchase and Adaptive Broadband will ship up to * units (in any
combination of subscriber units and access points) through March 31, 2000.
Buyer may purchase and Adaptive Broadband will ship additional units during
that time period only upon Adaptive Broadband's prior consent. Subject to
Buyer's * -unit and cumulative * -unit quantity obligations, there is no
restriction on the number of units Buyer may purchase after March 31.
2000."
1. Notwithstanding anything to the contrary:
(a) If Buyer fails to satisfy its *-unit purchase obligation by the end of
the relevant 36-month period, then with respect to its purchase
deficiency from * units, Buyer shall pay to Adaptive Broadband a
non-refundable amount equal to * of the agreed upon purchase price of
the units it was obligated to but failed to purchase.
(b) If buyer fails to satisfy its * -unit purchase obligation by the end
of the relevant 60-month period, then with respect to its purchase
deficiency from * . Buyer shall pay to Adaptive Broadband a
non-refundable amount equal to the difference between (i) * of the
agreed upon purchase price of the units it was obligated to but failed
to purchase by the end of that 60-month period, less (ii) the amount
Buyer paid (if any) pursuant to Section 1(a) of this Exhibit A.
(c) If Buyer terminates or cancels this Agreement for any reason prior to
purchasing * units, then with respect to its purchase deficiency from
* . Buyer shall pay to Adaptive Broadband a non-refundable amount
equal to * of the agreed upon purchase price of the units it was
obligated to but failed to purchase.
Buyer shall pay these obligations net 30 days after the end of that 36th
month, net 30 days after the end of that 60th month, and net 30 days after
that cancellation or termination date, as appropriate.
2. In any subsequent Product purchase agreement(s) entered into between
Adaptive Broadband and Buyer, Adaptive Broadband will give Buyer credit for
the Products purchased by it under this Agreement in
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determining the quantity discounts applicable to Buyer for Products
purchased by it under that other agreement(s).
3. Throughout the term of this Agreement, Adaptive Broadband agrees to
maintain current Product technology which is competitive in the wireless
broadband data access markets as measured on a bit-per-Hz basis,
dollars-per-bit basis, and the general commercial availability of general
features and functions in the wireless broadband data access markets. To
define and satisfy that obligation, every six months throughout the term
of this Agreement Adaptive Broadband and Buyer shall meet to review Buyer's
upcoming Product technology preferences and Adaptive Broadband's Product
development plans.
If Buyer requests that Adaptive Broadband develop a general Product feature
or function that is generally commercially available in the wireless
broadband data access markets, then Adaptive Broadband will adjust its
Product development schedule accordingly. If Adaptive Broadband at its own
initiative develops a Product feature or function that is not so generally
commercially available, then it will be available to Buyer at an
additional agreed upon price.
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EXHIBIT B
SERVICES AND RELATED PRICING
ENGINEERING SERVICES AND PRICING:
Adaptive Broadband will provide up to * man-days of engineering and
integration services to I(3)S, free of charge, during the field trial
and acceptance test phases contemplated by this Agreement and Exhibit
E. Thereafter, Adaptive Broadband will provide engineering and
integration services at the rate of */day/man, plus materials and
travel, lodging and subsistence expenses.
NON-ENGINEERING, INSTALLATION SUPPORT SERVICES:
* /day/man plus materials and travel, lodging and subsistence
expenses.
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EXHIBIT C
ADAPTIVE BROADBAND'S STANDARD TERMS AND CONDITIONS OF SALE
The following are the terms and conditions under which Adaptive Broadband
Corporation ("ADAP") sells products, except as otherwise agreed to by ADAP in
writing:
1. PRICES AND TAXES. The prices will be those set forth in ADAP's quotation or
bid valid at the time of order. If a quotation has expired, ADAP reserves
the right to extend the validity of the quotation or issue a new quotation
at its discretion. Prices are F.O.B. shipping point (North American orders)
/ EX-WORKS (Incoterms, 1990) ADAP's relevant shipping facility
(International orders), in U.S. dollars and are exclusive of all taxes,
tariffs, duties and fees. In addition to all charges and fees due under any
agreement or order between ADAP and Buyer, Buyer is solely responsible for
and agrees to pay amounts equal to any taxes, tariffs, duties and fees
(however designated) and any interest, fines and penalties (collectively,
"Tax") resulting from or arising out of that agreement or order, exclusive
of taxes based on ADAP's net income. Without limiting the generality of the
foregoing, Buyer is solely responsible for and agrees to pay, either
through the relevant product invoice or a separately issued invoice, all
sales taxes resulting from or arising out of that agreement or order
unless, within 30 days after shipment, ADAP receives export documentation
satisfactory to ADAP evidencing the export of the relevant products out of
the United States. If a Buyer within the United States wishes to have the
agreement or order treated as sales tax exempt, ADAP must receive a resale
or exemption certificate satisfactory to ADAP prior to shipment. Buyer will
pay on ADAP's behalf any Tax levied upon ADAP or reimburse ADAP for any
such Tax paid by ADAP. This Section will apply during and after termination
of any agreement between the parties.
2. ORDERS. No order submitted by Buyer will be deemed accepted by ADAP unless
and until confirmed in writing by ADAP's authorized representative. No
order which has been accepted by ADAP may be canceled by the Buyer except
with the agreement in writing of ADAP and on terms that the Buyer
will indemnify ADAP in full against all loss (including loss of profit),
costs (including the cost of all labor and materials used), damages,
charges and expenses incurred by ADAP as a result of cancellation
including, at a minimum, the terms set forth in Section 10 below.
3. PAYMENT. All payments by Buyer will be made in U.S. dollars in the U.S.
pursuant to one of the following terms, without offset:
Option 1: Confirmed. Irrevocable Letter of Credit acceptable to ADAP and
payable in U.S. dollars at sight upon presentation of documents confirming
shipment (i.e. Invoice, Packing List, Air Waybill) through any major
United States state or national bank. Validity must be at least 120 days
for shipment and 150 days for negotiation of documents: partial shipments
must be allowed: the Letter of Credit value must state F.O.B. shipping
point (North American orders) or EX-WORKS (Incoterms, 1990) ADAP's relevant
shipping facility (International orders). Estimated freight and handling
charges can be provided upon request. All banking charges are to Buyer's
account.
Option 2: 25% down-payment in U.S. dollars at the time of order with the
balance due two weeks prior to shipment. Wire transfer information: Bank of
America, 0000 Xxxxxxx Xxxx., Xxxxxxx, XX 00000, ABA# 000000000, Acct Name
Adaptive Broadband Corporation, Acct Number 1233727981. Reference Invoice #
and PO # and Contract #. By Order Of [Buyer's Name]: or such other wire
transfer information as ADAP may indicate.
Option 3: If Buyer continually satisfies ADAP's credit approval process and
requirements and if ADAP provides Buyer with prior written approval of
credit terms, then net 3O days after the relevant invoice date.
If ADAP agrees in writing to Option 3 above or if ADAP agrees in writing to
different or additional payment terms, then:
a. If during the period of performance of an order the financial
condition of the Buyer is determined by ADAP not to justify the terms
of payment specified, ADAP may demand that payment be made in
accordance with one of the two options above.
b. ADAP reserves the right to make deliveries in installments, all
installments to be separately invoiced and paid for by Buyer when due
per invoice without regard to other scheduled deliveries. If shipments
are delayed by the Buyer for any reason, payment will become due from
the date on which ADAP is prepared to make shipment and storage will
be at Buyer's risk and expense.
c. In the event of default in payment by Buyer: (i) ADAP may suspend
performance of its obligations; (ii) Buyer agrees to pay ADAP's
standard late charges plus interest on the delinquent payment from the
due date thereof until such payment and all interest thereon is
received at the rate of 1 1/2% per month, but not in excess of the
lawful maximum (which charges and interest are not in lieu of any
other right ADAP may have for Buyer's breach); and (iii) in the event
of litigation or collection activity arising out of Buyer's
non-payment, Buyer will promptly pay the reasonable costs and
expenses incurred by ADAP, including attorney's fees.
4. DELIVERY, SECURITY INTEREST, DELAYS. Delivery will be F.O.B. shipping
point (North American orders)/ EX-WORKS (Incoterms, 1990) ADAP's relevant
shipping facility (International orders). Freight and handling charges are
to be either remitted in advance or collected under a confirmed,
irrevocable Letter of Credit as outlined above. All shipments are subject
to availability and
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all references to dates are references to delivery F.O.B. shipping point
(North American orders) / EX-WORKS (Incoterms l99O) ADAP's relevant
shipping facility (International orders). Any dates for delivery quoted by
ADAP or provided in an accepted order are approximations only and ADAP will
not liable for delay in shipment for any reason. Title to product transfers
and Buyer assumes all risk of loss upon delivery of product by ADAP to the
initial carrier. Insurance will be provided by ADAP upon request and
collected with freight and handling charges. In the absence of instructions
to the contrary, ADAP on behalf of Buyer, will select the carrier but will
not be deemed thereby to assume any liability in connection with the
shipment nor will the carrier be construed to be an agent of ADAP. Claims
for loss or damage to products in transit must be made to the carrier and
not to ADAP. Buyer will be responsible for all storage, nagging, drayage
and other charges to and at Buyer's site. Buyer hereby grants ADAP a
security interest in the products and all cash and non-cash proceeds
thereof as security for all of Buyer's obligations hereunder. Upon request
by ADAP, Buyer will promptly execute any instrument required to perfect
such security interest, provided that in any event ADAP is hereby appointed
Buyer's attorney-in-fact to do all acts which ADAP deems reasonably
necessary or desirable to perfect and continue to perfect such security
interest and to protect the collateral. ADAP will not be liable for any
damages or penalty for delay in delivery or for failure to give notice of
delay when such delay is due to the elements, acts of God, delays in
transportation, delay in delivery by ADAP's vendors or any other causes
beyond the reasonable control of ADAP. The delivery schedule will be
extended by a period of time equal to the time lost because of such delay.
5. INTELLECTUAL PROPERTY.
If notified promptly in writing of any action (and all prior claims
relating thereto) brought against Buyer alleging that Buyer's use or other
disposition of product infringes a United States patent or copyright or
trade secret, ADAP will defend such action at its expense and will pay the
costs and damages awarded against Buyer in such action, provided that ADAP
will have sole control of and authority with respect to the defense of any
such action and all negotiations for is settlement or compromise. If a
final injunction is obtained in such action against Buyer's use of the
product or if in ADAP's opinion the product is likely to become the subject
of claim or infringement, ADAP will, at its option and at its expense:
procure for Buyer the right to continue using the product: or replace or
modify the same so that they become non-infringing: or accept return of the
product and refund or credit the amount of the original net purchase price,
less a reasonable charge for depreciation and damage. ADAP will not have
any liability to Buyer if the alleged infringement is based upon: (a) use
or sale of the product in combination with other products or devices which
are not made by ADAP; (b) use of the product in practicing any process: or
(c) the furnishing to Buyer of any information, service or other
assistance. No costs nor expenses will be incurred for the account of ADAP
without the prior written consent of ADAP. In no event will ADAP's total
liability to Buyer under or as a result of compliance with the provisions
of this clause exceed the sum paid to ADAP by Buyer for the allegedly
infringing product. The foregoing states the entire liability of ADAP with
respect to alleged infringement of patents and copyrights by the product or
any part thereof or by its operation. This Section states the entire
liability of ADAP for any infringement of patent, copyright, trademark,
trade secret, or other intellectual property rights.
If notified promptly in writing of any action (and all prior claims
relating thereto) brought against ADAP alleging that ADAP's use of or
compliance with Buyer's designs, specifications, or instructions infringes
a United States patent or copyright or trade secret. Buyer will defend such
action at its expense and will pay the costs and damages awarded against
ADAP in such action, provided that Buyer will have sole control of and
authority with respect to the defense of any such action and all
negotiations for its settlement or compromise. No costs nor expenses will
be incurred for the account of Buyer without the prior written consent of
Buyer. The foregoing states the entire liability of Buyer with respect to
alleged infringement of patents and copyrights and trade secrets by the
product or any part thereof or by its operation by reason of ADAP's use of
or compliance with Buyer's designs, specifications or instructions.
6. PRODUCT CHANGES. ADAP reserves the right, without prior approval from but
with notice to Buyer, to make changes to products or their specifications
(a) which do not materially adversely affect the performance of the product
or reduce performance below any contract specification: (b) when required
for purposes of safety: (c) to meet product specifications, or (d) when
required to conform with any applicable statutory or regulatory
requirements. ADAP reserves the right to make product improvements without
incurring any obligation or liability to make the same changes in products
previously manufactured or purchased. ADAP also reserves the right to
modify the availability of models in its product lines based on market
conditions, component availability, and other business considerations: and
to require that Buyer implement and utilize software upgrades as a
condition of maintenance contracts and warranty.
7. WARRANTY
PRODUCT MANUFACTURED BY ADAP:
a. Products manufactured by ADAP are warranted against defects in
material and workmanship for a period of one (1) year from date of
delivery as evidenced by ADAP's packing slip or other transportation
receipt.
b. ADAP's sole responsibility under this warranty will be to either
repair or replace, at its option, any component which fails during the
applicable warranty period because of a defect in material or
workmanship, provided Buyer has promptly reported same to ADAP in
writing. All replaced products and parts will become ADAP's
property.
c. ADAP will honor the warranty at the repair facility designated by
ADAP. It is Buyer's responsibility to return, at its expense, the
allegedly defective product to ADAP. Buyer must obtain a Return
Material Authorization (RMA) number and shipping instructions from
ADAP prior to returning any product under warranty. Transportation
charges for the return of the product to Buyer will be paid by ADAP
within the United States. For all other locations, the warranty
excludes all costs of shipping,
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customs clearance and other related charges. If ADAP determines in
good faith that the product is not defective within the terms of this
warranty, Buyer will pay ADAP all costs of handling, transportation
and repairs at the then prevailing repair rates.
d. All the above warranties are contingent upon proper use of the
product. These warranties will not apply (i) if adjustment, repair, or
product or parts replacement is required because of accident, unusual
physical, electrical or electromagnetic stress, neglect, misuse,
failure of electric power, environmental controls, transportation,
failure to maintained properly or otherwise in accordance with ADAP
specifications, or abuses other than ordinary use, (ii) if the
product has been modified by Buyer or has been repaired or altered
outside ADAP's repair facility unless ADAP specifically authorizes
such repairs or alterations in each instance; or (iii) where ADAP
serial numbers, warranty data or quality assurance decals have been
removed or altered.
e. No person, including any dealer, agent or representative of ADAP is
authorized to assume for ADAP any other liability on its behalf except
as set forth herein. If any payment is due ADAP for services performed
hereunder, it will be subject to the same payment terms as the
original purchase.
PRODUCTS MANUFACTURED BY OTHERS:
For products not manufactured by ADAP, the original manufacturer's or
licensor's warranty will be assigned to Buyer to the extent permitted by
the manufacturer or licensor and is in lieu of any other warranty,
expressed or implied. For warranty information on a specific product, a
written request should be made to ADAP.
ALL PRODUCTS:
THE FOREGOING WARRANTIES AND REMEDIES ARE EXCLUSIVE AND ARE IN LIEU OF ALL
OTHER EXPRESS OR IMPLIED WARRANTIES, OBLIGATIONS, AND LIABILITIES ON THE
PART OF ADAP. EXCEPT FOR THE EXPRESS WARRANTIES STATED HEREIN, ADAP
DISCLAIMS ALL WARRANTIES ON PRODUCTS FURNISHED HEREUNDER. INCLUDING,
WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE. ADAP WILL HAVE NO RESPONSIBILITY FOR ANY
PARTICULAR APPLICATION MADE OF ANY EQUIPMENT. Any description of equipment,
whether in writing or made orally by ADAP or its agents, specification
sheets, models, bulletins, drawings, or similar materials used in
connection with Buyer's order are for the sole purpose of identifying the
equipment and will not be construed as an express warranty. Any
suggestions by ADAP or its agents regarding use, application or
suitability of the equipment will not be construed as an express
warranty. No warranties may be implied from any course of dealing
or usage of trade. Buyer agrees that the exclusion of all warranties,
other than those expressly provided herein, is reasonable.
8. ACCEPTANCE OF PRODUCTS. Unqualified acceptance of products will occur
upon delivery, unless ADAP is notified in writing within ten days from
Buyer's receipt that the products do not meet ADAP's specifications or
that Buyer is making a claim for shortages or other errors in delivery.
Failure to give such timely notice constitutes a waiver of all such
claims by Buyer. ADAP's sole obligation for any non-conforming products
will be limited to repair or replacement, at ADAP's option, pursuant to
the provisions of the foregoing warranty clause.
9. INSTALLATION. In the event ADAP agrees with Buyer to install or perform
maintenance on any product(s) to be supplied. Buyer will pay ADAP'S then
current standard charges for such installation or maintenance.
10. CANCELLATION AND RESCHEDULE CHARGES. In the event Buyer defaults, ADAP may
decline to make further shipments and/or may terminate Buyer's order
without affecting ADAP's rights and remedies including, but not limited
to, any right to cancellation charges and quantity price adjustments. If
ADAP continues to make shipments after Buyer's default, ADAP's action
will not constitute a waiver nor affect ADAPs legal remedies. In the
event Buyer (a) cancels any order or portion thereof with the requisite
ADAP consent; or (b) fails to meet any obligation hereunder, causing
cancellation or rescheduling of any order or portion thereof; or (c)
requests a rescheduling of scheduled product and such request is accepted
by ADAP. Buyer agrees to pay ADAP cancellation/reschedule charges as a
percentage of the list price of the canceled/rescheduled product, said
charges having been agreed upon not as a penalty, but as a result of the
difficulty of computing actual damages. Such cancellation/rescheduling
charges may be set by ADAP in its business judgment in each instance. Buyer
may not cancel or reschedule any order or portion thereof after shipment.
11. EXPORT. Regardless of any disclosure made by Buyer to ADAP of an ultimate
destination of the product(s). Buyer will not export, either directly or
indirectly, any product(s) or non-ADAP equipment incorporating such
product(s) without first obtaining a license from the U.S. Department
of Commerce or any other agency or department of the United States
Government, as required. Buyer will use its best efforts to insure that
none of the products will reach any country where U.S. laws would forbid
ADAP to market or distribute the products.
12. DISCLAIMER AND LIMITATION OF LIABILITY.
A. ADAP'S TOTAL LIABILITY IS LIMITED TO THE NET PRICE OF THE PRODUCTS
SOLD HEREUNDER, EXCLUDING ANY CHARGES STATED SEPARATELY FROM THE
PRODUCT PRICE ON THE INVOICE. BUYER'S SOLE REMEDY FOR LIABILITY OF ANY
KIND, INCLUDING NEGLIGENCE, WITH RESPECT TO THE PRODUCTS, SOFTWARE,
AND DOCUMENTATION FURNISHED HEREUNDER IS LIMITED TO THE REQUEST FOR
ADAP, AT ADAP'S OPTION, TO REFUND THAT NET PRICE FOR THE ITEMS AND
MATTERS INVOLVED, EXCEPT THAT IN THE CASE OF A BREACH OF WARRANTY,
BUYER'S SOLE REMEDY IS TO RETURN THE PRODUCT TO ADAP FOR REPAIR OR
REPLACEMENT IN ACCORDANCE WITH THE "WARRANTY" SECTION OF THESE TERMS
AND CONDITIONS.
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B. WITH RESPECT TO SERVICES, ADAP'S LIABILITY FOR ANY SERVICE IS
LIMITED TO THE RE-PERFORMANCE OF THE SERVICE. ADAP DOES NOT WARRANTY
PROPOGATION OR PATH PERFORMANCE. ALL SURVEYS ARE ACCURATE AS OF THE
DATE THE SURVEY WAS CONDUCTED.
C. IN NO EVENT WILL ADAP BE LIABLE TO BUYER, OR WILL BUYER BE LIABLE
TO ADAP, FOR (I) REPROCUREMENT COSTS; (II) INDIRECT, INCIDENTAL,
SPECIAL, OR CONSEQUENTIAL DAMAGES; (III) ANY DAMAGES WHATSOEVER
RESULTING FROM LOSS OF USE, DATA OR PROFITS ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF ADAP
PRODUCTS, WHETHER IN AN ACTION OF CONTRACT OR TORT, INCLUDING
NEGLIGENCE AND STRICT LIABILITY, EVEN IF THE OTHER PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
D. NO ACTION, WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE, ARISING
OUT OF OR IN CONNECTION WITH THIS AGREEMENT MAY BE BROUGHT BY EITHER
PARTY MORE THAN EIGHTEEN (18) MONTHS AFTER THE CAUSE OF ACTION HAS
ACCRUED, EXCEPT THAT AN ACTION FOR NON-PAYMENT MAY BE BROUGHT
WITHIN EIGHTEEN (18) MONTHS OF THE DATE OF LAST PAYMENT.
13. GENERAL PROVISIONS.
a. The rights and obligations under these terms and conditions may not be
assigned without ADAP's prior written consent and any attempt to
do so without such consent will be void.
b. Buyer will pay to ADAP all costs, fees and expenses (including
attorneys' fee) incurred by ADAP in enforcing, or attempting to
enforce, any of its rights under these terms and conditions or any
contract of sale between them.
c. All rights and remedies, whether conferred hereby or by any other
instrument or law will be cumulative and may be exercised singularly
or concurrently. Failure by either party to enforce any contract
terms will not be deemed a waiver of future enforcement of that nor
of any other term. If any provisions of this contract are held invalid
under any applicable law, rule, regulation or treaty, such invalidity
will not affect other provisions of this contract which can be given
effect without the invalid provisions and to this end, the
provisions of this contract are declared to be severable.
Notwithstanding the above, such invalid provision or clause will be
construed, to the extent possible, in accordance with the original
intent of the parties.
d. Any typographical, clerical or other error or omission in any sales
literature, quotation, price list, acceptance of offer, invoice or
other document or information issued by ADAP will be subject to
correction without any liability on the part of ADAP.
e. Where products include radio frequency communications equipment,
certain regulations of telecommunications regulatory authorities
apply. It is the sole responsibility of the Buyer to ensure
compliance with all such regulations and all other applicable
laws and rules and to procure and maintain at its own expense any
relevant license from such regulatory authority to install, operate
and maintain the equipment.
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EXHIBIT D
SOFTWARE LICENSE AND SUB-LICENSE
Set out below are the terms and conditions of the software license granted by
Adaptive Broadband to Buyer. In sub-licensing software to its customers, Buyer
shall incorporate in such sub-licenses terms which offer no less degree of
protection than those set out below:
1. The Software and the documentation are unpublished copyright works and may
be used on any installation with a configuration mentioned in the
Agreement, provided the Software is in use on only one installation at any
one time.
2. Neither the Software nor the documentation may be copied in whole or in
part, except for backup and archival purposes.
3. The copyright notices and trademarks contained in the Software, on the data
medium, and in the documentation as supplied to Buyer must appear on all
copies made by Buyer.
4. Save for Buyer's right to grant sub-licenses to its customers in the
Territory and Market to use the Software in object code form, Buyer may not
transfer part, download, or in other way make available to others the
Software and the documentation delivered to it.
5. Buyer shall not have the right to modify the Software or to create
derivative works based on the Software, save as provided under applicable
laws.
6. No warranty applies if failure of the Software has resulted from misuse or
misappropriation.
If a new release of the Software contains new functions, and Buyer wants to use
these new functions, the new release shall be subject to a supplementary charge.
No license is granted for any new release until Buyer pays associated
additional fees. Buyer will be responsible for costs of software/hardware
upgrades of equipment supplied by third parties to support such new releases.
Any replacement of the Software will be guaranteed for the remainder of the
original warranty period or 3 months, whichever is longer.
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EXHIBIT E
ENHANCEMENTS AND FIELD TRIAL VERIFICATION
APPENDIX E
USE OF ADAPTIVE BROADBAND WITHIN I(3)S DATA ENVELOPE(TM)
This attachment is an analysis of how I(3)S can use the Adaptive Broadband
equipment as part of the I(3)S Data Envelope(TM) product architecture for
delivering broadband access to the Internet over forward deployed Ethernet
switches and other in-unit technologies. Below is a link-by-link and
device-by-device description of a property network architecture, detailing what
operations are required and what operations must not be performed along the
path. At the end is a detailed list of required changes to the Adaptive
Broadband product to satisfy the architectural model as well as other security,
configuration and management items.
[FLOW CHART]
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WORKING FROM THE PC TO THE CPE ROUTER
F 10 Mbps Ethernet
PCs are attached to the Edge Ethernet Switch via 10 Mb Ethernet.
Edge Ethernet Switch
Conforming to the requirements of the Data Envelope(TM), the switch does
not perform any subscriber port (S) to subscriber port (S) switching. All
traffic (broadcast and unicasts) which enters a subscriber port (S) must be
switched out the trunk port (T). The Edge Ethernet Switch will function as
a learning bridge and create a MAC table to identify all MAC addresses out
each port. Multiple PCs (and MAC addresses) may be attached to a hub on a
single switch port.
E 10/100 Mbps Ethernet
The aggregation of traffic from multiple 10 Mbps sources requires a higher
bandwidth trunk.
Adaptive Broadband Subscriber Unit
This device must provide a 10/100 Mbps Ethernet interface at the subscriber
port (S). Any bit presented to S must be sent out T. There is no need to
perform any MAC layer or IP layer analysis. All traffic must be presented
to the router, even IP layer peer to peer traffic.
D 25 Mbps Pt-Mpt Wireless
Adaptive Broadband Access Point
This device must provide a 10/100 Mbps Ethernet interface at the trunk port
(T). Any bit presented to S must be sent out T. All traffic must be
presented to the router, even IP layer peer to peer traffic.
C 10/100 Mbps Ethernet
Hub Ethernet Switch
Conforming to the requirements of the Data Envelope(TM), the switch does
not perform any subscriber port (S) to subscriber port (S) switching. All
traffic (broadcast and unicasts) which enters a subscriber port (S) must be
switched out the trunk port (T). The Hub Ethernet Switch will function as a
learning bridge and create a MAC table to identify all MAC addresses out
each port.
B 10/100 Mbps Ethernet
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Router
The main element in the Data Envelope(TM), all packets transmitted on the
property enter the router for processing, accounting, and forwarding. The
router sees all PCs on the property on the same IP subnet and in the same
broadcast domain. The router can communicate with all PCs via broadcasts or
multicasts, which will be replicated as necessary by the Ethernet switches.
A T1 or greater to POP
WORKING FROM THE CPE ROUTER TO THE PC
A T1 or greater from POP
Router
The main element in the Data Envelope(TM), all packets transmitted on the
property enter the router for processing, accounting, and forwarding. The
router sees all PCs on the property on the same IP subnet and in the same
broadcast domain. The router can communicate with all PCs via broadcasts or
multicasts, which will be replicated as necessary by the Ethernet switches.
The router can ARP for all PCs by sending a Layer 2 broadcast. The ARP
reply is only seen by the router.
B 10/100 Mbps Ethernet
Hub Ethernet Switch
Functioning as a standard Ethernet switch, the switch will flood broadcast
frames and search its MAC table for the correct port to send an outbound
unicast packet. At this layer, the switch will have the MAC address of all
the PCs attached to a downstream switch.
C 10/100 Mbps Ethernet
Adaptive Broadband Access Point
This device must provide a 10/100 Mbps Ethernet interface at the trunk port
(T). Any frame presented to t must be sent out s and vice-versa.
D 25 Mbps Pt-Mpt Wireless
All downstream traffic shares the 25 Mbps data rate.
Adaptive Broadband Subscriber Unit
This device must provide a 10/100 Mbps Ethernet interface at the subscriber
port (S). Any frame presented to T must be sent out S.
E 10/100 Mbps Ethernet
Edge Ethernet Switch
This Ethernet switch will receive all traffic transmitted from the Access
Point on the Pt-Pt PVC to which its Subscriber Unit is attached. The switch
will drop all traffic with a
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destination MAC address which has not been learned on a subscriber
port (S). Any traffic with a destination MAC address learned on a
subscriber port (S) will be forwarded out the appropriate port only.
F 10 Mbps Ethernet
PCs are attached to the Edge Ethernet Switch via 10 Mb Ethernet.
REQUIRED CHANGES TO ADAPTIVE BROADBAND EQUIPMENT TO MEET I(3)S DATA ENVELOPE(TM)
REQUIREMENTS
Access Point
o The Access Point (AP) must function at layer 1 and layer 2 only.
o The AP will support a secure handshake with Subscriber Unit (SU) and/or
encryption of data to SU
o The AP will only connect to an SU with the properly configured PVC to
establish a PVC connection.
o The AP will function as a Layer 2 MAC Learning Bridge. The AB Access Point
equipment will function as a Layer 2 MAC learning bridge, providing Pt-Pt
PVCs to each Subscriber Terminal. The Access Point will correctly implement
the S to T isolated data flow model correctly, ensuring no S to S
communication of broadcast or unicast packets. The Access Point will place
the downstream packet on the correct PVC to be received by only a single
Subscriber Terminal and forwarded to the correct Ethernet switch.
Subscriber Unit
o The SU will not function at Layer 3 for subscriber traffic flow.
o The SU will not learn IP addresses.
o The SU will not require an IP Subnet per SU.
o The SU will function at layer 1 and layer 2 only for subscriber traffic
flow.
o The SU will support a secure handshake with AP and/or encryption of data to
the AP.
o The SU will only connect to an AP with the properly configured PVC to
establish a PVC connection.
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EXHIBIT F
ACCEPTANCE TEST, PROCEDURES AND PARAMETERS
APPENDIX F
ACCEPTANCE TESTING REQUIREMENTS
Revision E
General System tests
Item Description
Number
GS-01 Configuration data is stored locally on each SU and AP device and may
be power cycled, reboot, and begin forwarding traffic appropriately
without communication with the network server or network management
station.
GS-02 Configuration files may be downloaded to an SU or AP device remotely
via secure RUPEE over TCP/IP (Specifically: PVC configuration, IP
address assignments, wireless interface configuration, all firmware
and software).
SU - General tests
Item Description
Number
SU-G-01 The SU builds a bridge table based on Ethernet MAC address only as it
receives packets in the S and T interface of the SU.
SU-G-02 The bridge table may be viewed via network management, direct SNMP to
the SU or through a management station proxy.
SU-G-03 The SU maintains counters for received and transmitted MAC layer
frames and cells.
SU-G-04 The SU will accept all input ethernet traffic on the S interface of
the device on a standard RJ-45 - 10 Mb half-duplex Ethernet
connection.
SU - Upstream from PC tests
Item Description
Number
SU-U-01 Valid upstream unicast packets received on an S interface of the SU
are always forwarded out the T interface of the SU.
SU-U-02 Valid upstream broadcast packets received on an S interface of the SU
are always forwarded out the T interface of the SU.
SU-U-03 Valid upstream multicast packets received on an S interface of the SU
are always forwarded out the T interface of the SU.
SU-U-04 The SU does forward packets with source and destination MAC addresses
on the S interface of the SU out the T interface, and the T interface
only.
SU-U-05 All packets arriving at the S interface of the SU are forwarded out
the T interface of the SU.
SU-U-06 No packets arriving at the S interface of the SU are forwarded back
out the S interface of the SU.
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SU - Downstream to PC tests
Item Description
Number
SU-D-01 Valid downstream unicast packets received on a T interface of the SU
are either:
-Always forwarded out the S interface of the SU (With the
exception of datagrams terminated within the SU itself)
SU-D-02 Valid downstream broadcast packets received on a T interface of the SU
are always forwarded out the S interface of the SU.
SU-D-03 Valid downstream multicast packets received on a T interface of the
SU are always forwarded out the S interface of the SU with the
exception of some management packets addressed to the SU which are not
passed on
SU-D-04 The SU does not forward packets with source and destination MAC
addresses on the T interface of the SU out the S interface; the
packets are discarded.
SU-D-05 No packets arriving at the T interface of the SU are forwarded back
out the T interface of the SU.
AP - General tests
Item Description
Number
AP-G-01 The AP builds a bridge table based on Ethernet MAC address only as it
receives packets in the S and T interface of the SU.
AP-G-02 The bridge table may be viewed via network management, direct SNMP to
the AP or through a management station proxy.
AP-G-03 The AP maintains counters for received and transmitted MAC layer
frames and cells.
AP-G-04 The AP will accept all input ethernet traffic on the T interface of
the device on a standard RJ-45-10 Mb half-duplex Ethernet
connection.
AP - Upstream from PC tests
Item Description
Number
AP-U-01 Upstream unicast packets received on an S interface of the AP are
always forwarded out the T interface of the AP with the exception of
some SU management information packets.
AP-U-02 Upstream broadcast packets received on an S interface of the AP are
always forwarded out the T interface of the AP.
AP-U-03 Upstream multicast packets received on an S interface of the AP are
always forwarded out the T interface of the AP with the exception of
some SU management information packets.
AP-U-04 The AP does forward packets with source and destination MAC addresses
on the S interface of the AP out the T interface, and the T interface
only.
AP-U-05 All packets arriving at the S interface of the AP are forwarded out
the T interface of the AP with the exception of some SU management
information packets.
AP-U-06 No packets arriving at the S interface of the SU are forwarded back
out the S interface of the SU.
AP-U-07 All packets forwarded out the T interface of the AP will be forwarded
out the 10 Mb Ethernet interface identical to the packets received on
the S interface of the SU; no additional headers from the original PC
authored Ethernet packet will be presented.
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AP - Downstream to PC tests
Item Description
Number
AP-D-01 Downstream unicast packets received on a T interface of the AP are
only forwarded out the S interface of the AP if the destination MAC
address is located in the bridge table and designates the S interface
as the interface on which the address was learned
AP-D-02 Downstream broadcast packets received on a T interface of the AP are
always forwarded out the S interface of the AP.
AP-D-03 Downstream multicast packets received on a T interface of the AP are
always forwarded out the S interface of the AP with the exception of
some AP management information packets.
AP-D-04 The AP does not forward packets with source and destination MAC
addresses on the T interface of the AP out the S interface; the
packets are discarded.
AP-D-05 No packets arriving at the T interface of the AP are forwarded back
out the T interface of the AP.
AP 1483 bridge tests
Item Description
Number
AP-BR-01 The 1483 bridge table in any AP must support a minimum of 250
simultaneous bridge entries.
AP-BR-02 As packets are learned from upstream traffic, the MAC address is
placed into a bridge table associated with the PVC on which the packet
was received.
AP-BR-03 Learned MAC addressed must time-out every hour.
AP-BR-04 Entries in an instance of the 1483 bridge tables must capable or being
cleared via network management interaction
AP-BR-05 Downstream packets will consult the bridge table and forward the
packet out the S interface on the appropriate PVC.
AP-BR-06 If a PVC to a SU goes down, the bridge table must be cleared.
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Network Management tests
Item Description
Number
NM-01 A single ADAP NMS will be located in the Irving, TX NOC and can
support up to 100 ADAP Control Servers.
NM-02 The ADAP NMS will communicate with the ADAP Control Servers via a TCP
over IP connection.
NM-03 The ADAP Control Server may be configured to only accept network
management IP connections from a designated subnet and from a discrete
set of IP addresses. All other network management connections are
refused and logged.
NM-04 The ADAP Control Server and ADAP NMS connection must be validated
through a security mechanism, such as shared key.
NM-05 The ADAP Control Server will be located in I3S POPs and communicated
with on-property APs via a TCP over IP connection.
NM-06 The ADAP Control Server will support up to 1000 simultaneous TCP
connections to the APs and maintain a response time of less than 2
seconds.
NM-07 The AP may be configured to only accept network management IP
connections from a designated subnet and from a discrete set of IP
addresses. All other network management connections are refused and
logged.
NM-08 The ADAP Control Server and ADAP NMS connection must be validated
through a security mechanism, such as shared key.
NM-09 The information exchanged, gathered, etc... between the AP and ADAP
Control Server can be controlled, minimized, and tailored.
NM-10 The ADAP Control Server will initiate and establish a session based
UDP over IP connection with each configured AP or SU. UDP packets
which arrive and violate the session flow will be discarded and
logged.
NM-11 An AP will forward network management traffic between the ADAP Control
Server and the designated SU over the specified and designated network
management PVC configured between the AP and SU.
NM-12 The AP and SU connection must be validated through a security
mechanism, such as shared key.
NM-13 An AP can be configured to connect to a primary and a secondary ADAP
Control Server. If the primary is not available after a reasonable
effort, the AP will connect to the secondary.
NM-14 The IP addresses assigned to AP and SU devices for network management
may be changed dynamically and through network management.
NM-15 AP and SU devices are assigned a single IP address for network
management. The IP address may be from the globally non-routable
ranges. An AP and all subordinate SU devices must share a common IP
subnet for network management. All devices must support variable
length subnet masks.
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