NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY "[*]" ARE SUBJECT TO A CONFIDENTIAL
TREATMENT REQUEST, AND HAVE BEEN OMITTED FROM THIS EXHIBIT. COMPLETE, UNREDACTED
COPIES OF THIS EXHIBIT HAVE BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION AS PART OF THIS COMPANY'S CONFIDENTIAL TREATMENT REQUEST.
EXHIBIT 10.30
SUPPLY AGREEMENT
----------------
This Supply Agreement (the "Agreement") is made effective as of the 14th day of
September, 2001, (the "Effective Date"), by and between AIRSPAN NETWORKS INC., a
corporation organised under the laws of Washington, with its principal place of
business at 00000 Xxxx Xxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx, 00000,
X.X.X. ("ANI"), and MONARCH COMMUNICATIONS LIMITED a company organised under the
laws of Nigeria with its principal office at Xxxxxxx Xxxxx, Xx 000, Xxxxxxx
Xxxx, Xxxxx, Xxxxx, Xxxxxxx ("Purchaser").
WITNESSETH:
WHEREAS, ANI is engaged in the design and manufacture of various
telecommunications product lines including, among others, those ANI products
more completely described in Exhibit A hereto (the ANI products described in
Exhibit A of this Agreement, as from time to time amended in accordance with the
provisions of this Agreement, are hereinafter called the "ANI Products"); and
WHEREAS, Purchaser is engaged in the operation of telecommunications systems;
and
WHEREAS, during the Term (as defined below) of this Agreement, ANI desires to
supply to Purchaser, and Purchaser wishes to acquire from ANI, the ANI Products
on the terms and conditions contained in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises herein contained, it is
hereby agreed as follows:
1. SCOPE.
1.1.This Agreement shall remain in effect for a period of 3 years from
the Effective Date (the "Term").
1.2. During the Term, in accordance with each purchase order issued by
Purchaser and accepted by ANI, ANI shall:
a. Engineer, sell, and deliver that equipment so specified in the
order ("Equipment" being defined as the hardware component
SUPPLY AGREEMENT - PAGE 1
of each product being offered under the terms and conditions of
this Agreement);
x. Xxxxx to Purchaser a non-transferable, non-exclusive, paid-up
licence to use the Software (as defined in Section 10.1) during
the useful life of the associated Equipment on the terms and
conditions set forth in the Software Licence, Section 10; and
c. Test, install and commission the Equipment and/or Software and
integrate the Equipment and/or Software in accordance with ANI's
specification therefor with third party equipment agreed upon by
both parties (the "Installation Services") if such services are
included in the price of the Equipment or Software or if such
services are ordered separately.
d. Train Monarch staff to enable them engineer, operate and
maintain the system. In this regard, training shall be provided
by ANI for all facets of the Hardware and Software components of
the ANI Products as follows:
i. Installation: on-the-job training will be provided to a
limited number of Purchaser's engineers during the provision
of Installation Services by ANI ;
ii. Post Installation [Operation and Maintenance]: training will
be provided by ANI at the times and location(s) agreed upon
by the parties at the rates set forth in Exhibit B, the
Price List.
1.3. ANI will also cooperate with Purchaser to develop Purchaser's
post project operations management strategy , which will
incorporate xxxxxxx levels and skills requirements. The parties
will develop a draft proposal by 30 September 2001 for review by
Purchaser.
1.4 ANI will make spare parts available for purchase by Purchaser for
a period of ten years from the date of Shipment of the
corresponding Equipment.
2. ORDERING PROCEDURE.
2.1 The following procedures shall be followed with respect to each
purchase order issued by Purchaser:
a. During the Term, Purchaser will inform ANI of its intent to
purchase Equipment and Installation Services, and license Software, by
sending
SUPPLY AGREEMENT - PAGE 2
to ANI a written order. This written order (the "Purchase Order") will
state the type of Equipment, System, or Installation Services that
Purchaser wants to purchase and the Software Purchaser wants to
licence as well as the price of the ordered items (the "Contract
Price").
b. Each Purchase Order shall specifically incorporate by reference the
terms and conditions of this Agreement, and no additional or different
terms and conditions stated in a Purchase Order, any letter, or
otherwise shall be binding unless expressly referred and agreed to by
both parties in writing. In the event of a conflict between the terms
and conditions of this Agreement and of any Purchase Order issued
hereunder, or if the Purchase Order does not reference the terms and
conditions of this Agreement, the terms and conditions of this
Agreement shall prevail.
2.2 TYPE APPROVAL
ANI shall provide to the Purchaser a copy of the Nigerian
Communications Commission Type Approval Certificate, which allows the
products on order to be used in Nigeria.
3. EQUIPMENT FOR MONARCH NIGERIA PROJECT
3.1. ANI has agreed to provide and Monarch has agreed to provide
equipment, software and services set forth in the Schedule of
Equipment for the initial order for the Monarch Nigeria Project
attached to this Agreement as Exhibit B. and incorporated herein as
part of the agreement at the price detailed and on the terms and
conditions specified in Exhibit B. The parties agree that the terms
and conditions specified in Exhibit B. shall govern the supply and
purchase of the equipment, software and services listed therein for
the initial order.
3.2. CONTRACT PRICE.
3.2.1. The Contract Price for each item of Equipment, Installation
Services, or Software is as specified in Exhibit B and shall be paid
to ANI in US Dollars (USD or US$).
3.2.2. The Contract Price for Equipment and Software includes:
a. The price of the Equipment;
b. The fee for the licensing of the Software;
SUPPLY AGREEMENT - PAGE 3
c. The charges for the warranty of the Equipment and Software
in accordance with Section 7;
d. Transportation and insurance charges in accordance with
ANI's Contract Price set forth in Section 3.2.4 and ANI's
delivery obligations set forth in Section 5.1;
e. Charges for training Monarch staff in accordance with
Paragraph 1.2(d).i and 1.2(d).ii; and
3.2.3. The Contract Price for Installation Services includes:
a. The price for installation and commissioning the Equipment and
Software including the integration of the Equipment and/or Software in
accordance with ANI's specification therefor with third party
equipment as agreed upon by both parties. ANI shall provide all
necessary tools and test equipment required for the installation,
testing and commissioning of the Equipment and Software. Commissioning
includes successful completion of the Commissioning tests agreed upon
by the parties and set forth in Exhibit C.
b. ANI's Contract Price for Installation and Commissioning is quoted
separately for: (i) infrastructure (i.e. ACs and CTs); and (ii)
Subscriber Terminal (STs).
3.2.4. All prices quoted in Exhibit B are CIP, Lagos Port Nigeria .
4. PAYMENT TERMS.
4.1 If a Purchase Order is accepted by ANI, ANI will issue an invoice (the
"Invoice") to Purchaser within fifteen (15) business days of ANI's receipt
of the written Purchase Order from Purchaser. The Invoice specifically
shall identify the Equipment, Software, or Systems so ordered, and the
Contract Price of such items. Installation Services shall separately be
invoiced within fifteen (15) business days of ANI's receipt of a written
Purchase Order for same. The Invoice also shall state the total amount due
to ANI from Purchaser.
4.2 The Purchaser shall open a confirmed irrevocable documentary Letter of
Credit in favour of ANI with a bank acceptable to ANI in respect of
payments for Equipment and Software listed in Appendix A and such
installation services to be provided by ANI under this agreement. The
Letter of Credit shall be in an amount equal to the value of the total
Contract Price (equipment and installation) and shall have a validity
period of 180 Days.
SUPPLY AGREEMENT - PAGE 4
4.2.1. Draw down on the Letter of Credit shall be as follows:
a. Ten [10] percent of the total value of the contract price as down
payment for which ANI shall issue a Bank Bond in favour of the
Purchaser.
b. Fifty [50] percent of the value of the Equipment and Software
ordered shall be paid to ANI fifty (50) days after the date of
Delivery on the presentation of the following documents
i. ANI attested Invoice;
ii. Final Invoice;
iii. Airwaybill of lading
iv. Packing List.
v. Clean report of finding.
c. The balance of forty [40] percent of the value of the Equipment
and Software in the Purchase Order shall be paid one hundred and
fifty (150) days after the date of Delivery.
4.2.2. The balance of the 90% of installation charges shall be paid as
follows:
o 50% on the start of installation; and
o 40% on completion of installation.
4.3 In the case of payment by wire (or telegraphic) transfer, the
funds due must be received in ANI's designated bank. The
transfer instructions are:
Bank: Bank of America Inc.
Address: 10th Floor, 0 Xxxxxxxxx Xxxxx,
Xxxx Xxxxxxxxxx,
XX 00000
X.X.X.
Sort Code: 063100277
Account Name: Airspan Networks Inc.
Account No: 0034 4784 5294
Further Instructions: Reference (Purchaser's name)
P.O. No. _______,
Payment of Invoice No. _________.
5. DELIVERY, TITLE, AND RISK OF LOSS.
5.1. ANI shall make arrangements for the delivery of all Equipment and
Software ordered by Purchaser as detailed in Exhibit B, CIP Lagos Port
Nigeria as per Incoterms 2000 ("Delivery"); upon which Purchaser will
make arrangements for their collection from the Port. ANI agrees to
use a reputable freight forwarder which it shall identify to the
Purchaser prior to shipment; and the parties shall agree upon the mode
of shipment and the carrier.
In this Agreement, "Incoterms" means the most recent international
rules for the interpretation of trade terms published by the
International Chamber of Commerce as in force at the date when this
Agreement is made. Unless the context otherwise requires, any term or
expression which is defined in or given a particular meaning by the
provisions of the Incoterms shall have the same meaning in this
Agreement, but if there is any conflict between the provisions of the
Incoterms and this Agreement, the latter shall prevail.
5.2. All risk of loss or damage to the Equipment and Software will pass to
Purchaser upon Delivery.
SUPPLY AGREEMENT - PAGE 6
5.3. Title to the Equipment shall pass to Purchaser on Delivery.
5.4. The Software shall at all times remain the exclusive property of ANI.
5.5. ANI shall not make partial deliveries of Purchaser's orders unless the
Purchaser has been advised and has agreed in writing to accept such
partial delivery in respect of any particular order, such agreement
not to be unreasonable withheld or delayed
5.6. ANI will use reasonable efforts to meet Purchaser's requested delivery
schedules for Equipment and Software, but ANI reserves the right to
refuse, cancel, or delay delivery to Purchaser when Purchaser's credit
is impaired, when Purchaser is delinquent in payments or fails to meet
other credit or financial requirements reasonably established by ANI,
and agreed by the parties in writing. Should orders for Equipment and
Software exceed ANI's available inventory, ANI will disclose its
available inventory and make deliveries on a basis discussed and
agreed with the Purchaser. ANI shall not be liable for any indirect,
consequential, or special losses or damages (including, but not
limited to, loss of income or profit and loss of data) that may be
suffered by the Purchaser or by any other person for failure to
deliver or for any delay or error in delivery of Equipment or Software
for any reason whatsoever.
5.7. In the event that the actual date of Shipment is later than the agreed
upon date of Shipment for an accepted Purchase Order or part thereof,
Purchaser may levy a penalty of two percent (2%) per week of the
Contract Price of the Equipment and/or Software directly affected by
the delay up to a maximum amount of twelve percent (12%) of the
Contract Price of such affected Equipment or Software. Such penalty
must be invoiced by the Purchaser within thirty (30) days of the
actual date of Shipment and ANI will pay such invoices within thirty
days of receipt or will set-off such amounts against amounts due and
payable to ANI. A two-week grace period will apply before Purchaser
may levy a penalty but if the delayed Equipment or Software is not
delivered during the grace period, the penalty may be levied from the
first day of delay.
5.8. If Purchaser has any ANI owned Equipment in its possession then:
a. Purchaser shall ensure that Equipment is clearly marked as the
property of ANI, and if asked, shall inform any third parties that the
Equipment is the property of ANI;
SUPPLY AGREEMENT - PAGE 7
b. Purchaser shall not purport to create any security, mortgage, lien
or pledge over the Equipment, or otherwise deal with the Equipment
without ANI's express written consent; and
c. In the event of any threatened seizure of the Equipment by any
third parties, and on termination or expiration of this Agreement, or
any contract made pursuant to it, ANI shall have the right to obtain a
court order to restrain and /or prevent such seizure; without
prejudice to any other remedy which it may have at law in respect of
the equipment.
6. SUBCONTRACTING
ANI reserves the right to subcontract such portions of: (a) the Equipment
manufacture and/or Software development and supply; and/or (b) installation
to subcontractors of ANI's choice as XXX xxxxx appropriate.
The prior written consent of the Purchaser shall be obtained for any sub
contract or assignment in accordance with Paragraph 6(b) above, such
consent not to be unreasonably withheld or delayed; so however that ANI
shall not be relieved of any of its obligations under this agreement by
reason of such subcontract or assignment.
7. WARRANTY.
7.1 THE WARRANTIES SET FORTH IN SECTIONS 7 AND 8 OF THIS AGREEMENT ARE IN
LIEU OF, AND ANI HEREBY DISCLAIMS, ALL OTHER WARRANTIES AND CONDITIONS,
WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED TERMS
OF SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE.
7.2 Subject to Sections 7.3 and 7.4, ANI warrants that the Equipment sold
to Purchaser under this Agreement shall, under normal use and service, be
free from defects in materials and faulty workmanship, and that the
Software licensed to Purchaser under this Agreement shall conform in all
material respects to ANI's published specifications therefor. The warranty
period for any item of Equipment and related Software shall be eighteen
(18) months from Delivery (hereinafter, this period of time shall be
referred to as the " Warranty Period.")
7.3 ANI's obligation and Purchaser's sole remedy under this warranty are
limited to the replacement or repair, , of the defective Equipment or
Software within the Warranty Period. ANI shall have no obligation to remedy
any such defect if it can be shown that: (a) the Equipment or
SUPPLY AGREEMENT - PAGE 8
Software was altered, repaired, or reworked by any party other than ANI
without ANI's prior written consent; (b) such defects were the result of
Purchaser's or a third party's improper storage, mishandling, abuse, or
misuse of the Equipment or Software; (c) such defects were the result of
Purchaser's or a third party's use of the Equipment or Software in
conjunction with equipment electronically or mechanically incompatible or
of an inferior quality; or (d) the defect was the result of damage by fire,
explosion, power failure, or any act of nature.
7.4 The Purchaser may require ANI to provide on-site operation and
maintenance services on such terms and conditions agreed by the parties.
7.5 Subject to the provisions of this warranty clause, defective parts or
components must be returned by Purchaser to ANI's point of manufacture
facility, freight prepaid, within the Warranty Period, and said
defective parts will be repaired or replaced by ANI at no charge to
Purchaser. In connection with such return by Purchaser, Purchaser
shall comply with ANI's (Return Material Authorisation (RMA)
procedures.) Risk of loss or damage to Equipment or Software returned
to ANI for repair or replacement shall be borne by Purchaser until
delivery to ANI. Upon delivery of such Equipment or Software, ANI
shall assume the risk of loss or damage until that time that the
Equipment or Software being repaired or replaced is returned and
delivered to Purchaser. Purchaser will pay the transportation costs
for Equipment or Software shipped to ANI for repair or replacement
save where the repair or replacement arose out of faulty and defective
design in workmanship or manufacture of the equipment or software
7.6 ANI shall pay all transportation costs associated with returning
repaired or replaced Equipment or Software to Purchaser unless there
was no fault found (NFF), in which event, Purchaser shall pay such
transportation costs along with ANI's then prevailing NFF charge.
7.7 ANI will charge Purchaser for any maintenance carried out which is not
covered by the warranties contained in Section 7.2 or Section 8 at the
rates agreed by the parties for such services.
8. WARRANTY ON REPAIRED MATERIALS.
ANI warrants that the Equipment or Software returned by ANI following
repair or replacement by ANI shall be free from defects in materials and
faulty workmanship and that the Software will conform in all material
respects to ANI's published specifications therefor for ninety
SUPPLY AGREEMENT - PAGE 9
(90) days from the date of Delivery or until the end of the Warranty
Period, whichever is longer.
9. LIMITATION OF LIABILITY.
9.1 WITHOUT PREJUDICE TO SECTION 9.3, NEITHER ANI NOR ANY OF ITS OFFICERS,
DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, SHAREHOLDERS, OR AFFILIATES
(ANI AND SUCH OTHER PERSONS, THE "ANI PARTIES"), SHALL HAVE ANY LIABILITY
TO PURCHASER IN CONTRACT, TORT OR OTHERWISE (INCLUDING WITHOUT LIMITATION
NEGLIGENCE OR BREACH OF STATUTORY DUTY) FOR LOSS OF PROFITS, INCOME,
REVENUE OR DATA, OR INCIDENTAL, CONSEQUENTIAL, INDIRECT OR PUNITIVE DAMAGES
OR LOSSES, ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT, ANY PURCHASE
ORDER PLACED PURSUANT TO THIS AGREEMENT OR ANY COLLATERAL CONTRACT, OR FROM
OR IN CONNECTION WITH THE EQUIPMENT OR THE SOFTWARE OR THE USE THEREOF OR
THE INABILITY TO USE THEM EITHER SEPARATELY OR IN COMBINATION WITH OTHER
EQUIPMENT OR SOFTWARE,
9.2. ANI shall be liable for physical damage to property due to ANI's
negligence up to a maximum aggregate amount of two million US Dollars
(USD2,000,000).
9.3 Nothing in this Agreement shall exclude or in any way limit ANI
liability for death or personal injury caused by its negligence.
10. SOFTWARE LICENCE.
10.1 ANI shall grant Purchaser a nonexclusive, non-transferrable license to
use the Software, only with the Equipment purchased under this Agreement.
Software licensed under this Agreement is defined as computer programs
contained on a magnetic tape, disc, semiconductor device, or other memory,
including: (a) hardwired logic instructions which manipulate data in the
central processor and which control input-output operations, error
diagnostics, and recovery routine; and (b) instruction sequences in
machine-readable code which control call processing, peripheral equipment,
and administration and maintenance functions as well as associated
documentation used to describe, maintain, and use the programs.
10.2 Any Software provided to Purchaser by ANI shall be treated as the
exclusive property of ANI, and Purchaser shall: (1) treat such Software as
Confidential Information under Section 12 of this Agreement; (2) utilise
such Software or any portions or aspects thereof (including any methods or
concepts utilised therein) solely in conjunction with the Equipment;
(3)return to ANI all memory media,
SUPPLY AGREEMENT - PAGE 10
documentation and/or other material that has been modified, updated or
replaced; (4) not modify, disassemble or decompile such Software, or
reverse engineer any portion of the Software or functioning of the ANI
Products, or permit others to do so, without ANI's prior written consent;
and (5) not reproduce or copy such Software in whole or in part except for
backup and archival purposes or as otherwise permitted in writing by ANI.
(Information to achieve interoperability of the Software with independently
created programs, within the meaning of Article 6 of the Directive on the
Legal Protection of Computer Programs shall be provided by ANI to the
Purchaser upon the signing of this agreement.
10.3 The obligations of Purchaser under this Section 10 shall survive the
termination of the Agreement for any reason and shall continue even if the
Software is no longer used with the Equipment.
11. DOCUMENTATION.
For the initial Purchase Order, ANI shall furnish six full sets of
documentation, in hard and soft copies to the Purchaser at no extra cost,
for the products specified in Exhibit A including cabling diagrams to be
used for the operation and maintenance of the Equipment and Software.
Thereafter, for documentation updates and further Purchase Orders ANI will
provide a single copy on CD-ROM and in hard copy. All such documentation is
to be treated in accordance with the terms of Section 12. Updates to the
documentation shall be at no charge during the Warranty Period.
12. CONFIDENTIAL INFORMATION.
12.1 The Confidentiality Agreement, dated 22 August 2001 between Airspan
Communications Ltd. and the Purchaser is incorporated herein by reference.
The obligations of Sections 10 and 12 will survive termination or
cancellation of this Agreement.
13. EXCUSABLE DELAY
None of the parties shall suffer any liability for non-performance,
defective performance, or late performance under this Agreement due to
causes beyond its control and without its fault or negligence such as, but
not limited to, acts of God, war (including civil war), civil unrest, acts
of government, fire, floods, explosions, the elements, epidemics,
quarantine, restrictions, strikes, lock-outs, plant shutdown. In the event
of excusable delay as defined in the preceding sentence, then the affected
party, upon giving prompt written notice to the other shall be excused from
such performance on a day-to-day basis to the
SUPPLY AGREEMENT - PAGE 11
extent of such prevention, restriction, or interference (and the other
party shall likewise be excused from performance of its obligations on a
day-to-day basis to the extent that the party's obligations relate to the
performance so prevented, restricted, or interfered with), provided that
the party in default shall use its best endeavours to avoid or remove such
causes of non-performance and both parties shall proceed to perform with
dispatch whenever such causes are removed or cease to exist.
Each party reserves the right to cancel or otherwise terminate this
Agreement if the other's performance is delayed for a period of more than
ninety (90) days.
14. GENERAL INDEMNITY.
14.1 ANI agrees to indemnify and hold Purchaser harmless against all costs,
expenses, liabilities, damages, losses, claims, or proceedings incurred by
Purchaser in an action by a third party alleging that Purchaser's use of
the Equipment or the Software, separately or in combination, as a whole or
in part, constitutes an infringement of their intellectual property rights
wherever in the world enforceable, including applications to register and
rights to apply for any such rights ("Intellectual Property Rights"). ANI
agrees to defend Purchaser against any such claims and to pay all
litigation costs, reasonable lawyer's fees, settlement payments, and any
damages awarded or resulting from any such claim.
14.2 Purchaser shall promptly advise ANI of any such suit, claim, or
proceeding and shall co-operate with ANI in the defence or settlement
thereof. ANI shall have sole control of the defence of any action involving
such a claim and of all negotiations for its settlement.
14.3 In the event that an injunction is obtained against Purchaser's use of
the Equipment and/or the Software, in whole or in part, as a result of any
such claim under Section 14.1, ANI shall use its best efforts to either:
(a) procure for Purchaser the right to continue using the portions of the
Equipment or the Software enjoined from use; or (b) replace or modify the
same with functionally equivalent or better Equipment and/or Software so
that Purchaser's use is not subject to any such injunction. In the event
that ANI cannot perform the remedies set forth in Sections 14.3(a) or
14.3(b), then Purchaser shall have the right to return such Equipment and
the Software to ANI. In the event of such return, ANI shall refund the full
value of the Equipment and the licence to use the Software within fifteen
(15) days of the receipt by ANI of the Equipment and the Software.
SUPPLY AGREEMENT - PAGE 12
14.4 This indemnity shall not apply to claims arising in respect of the use
of the Equipment or Software supplied by ANI or manufactured by its
suppliers in accordance with any design or any special instruction
furnished by Purchaser, or which Purchaser uses in a manner or for a
purpose not contemplated by this Agreement.
14.5 The provisions of this Section 14 set forth the entire obligation of
ANI with respect to any claim of infringement of Intellectual Property
Rights.
15. REMEDIES AND TERMINATION.
15.1 Either party shall have the right, prior to payment to ANI of the
Invoice Total, to suspend its performance under this Agreement by written
notice to the other Party if that party shall: (a) become insolvent; (b)
have a receiver or manager appointed over the whole or any part of its
assets or business; (c) make any composition or arrangement with its
creditors; (d) take or suffer any similar action in consequence of debt, or
an order or resolution is made for its dissolution or liquidation (other
than for the purpose of amalgamation or reconstruction). .
15.2 In the event of any material breach of this Agreement by either party
which shall continue for thirty (30) or more days after written notice of
such breach (including a reasonably detailed statement of the nature of
such breach) shall have been given to the breaching party by the aggrieved
party, the aggrieved party shall be entitled at its option: (a) to avail
itself of any and all remedies available at law or equity; or (b) to
terminate this Agreement; or (c) if the aggrieved party is ANI, to suspend
performance of all of its obligations under the Agreement for as long as
the breach continues uncorrected or (d) if the aggrieved party is the
Purchaser, to suspend payment of any monies due and payable to ANI until
the breach is corrected.
15.3 In the event (a) either party fails timely to discharge its
obligations under this Agreement and (b) the aggrieved party employs a
lawyer in order to collect any amount due and unpaid or to enforce any
right or remedy hereunder, then the defaulting party agrees that, in
addition to all amounts due hereunder, it shall pay all costs of collection
or enforcement including court costs and reasonable Lawyer's fees.
16. PURCHASER'S RESPONSIBILITIES.
To the extent that Purchaser requests Installation Services, and ANI
accepts the Purchase Order for such Installation Services, then:
SUPPLY AGREEMENT - PAGE 13
a. Purchaser shall ensure that all ANI-designated personnel have access
to Purchaser's premises and the Equipment during the times necessary
to install, maintain, and service the Equipment. ANI's personnel shall
comply with site and security regulations as specified by Purchaser.
b. Purchaser shall provide reasonable working space and facilities
including cooling, light, ventilation, electric current and outlets
for use by ANI's designated personnel. Adequate storage space for
equipment and materials shall be made available by Purchaser as
required. All such facilities shall be provided at no charge to ANI.
c. Any information which ANI reasonably requests from Purchaser and which
is required for ANI to properly install or maintain the Equipment
shall be provided by Purchaser in a timely fashion and form reasonably
specified by ANI.
d. Purchaser shall not perform, or attempt to perform, or cause to be
performed any maintenance or repair to the Equipment during the term
of this Agreement, other than pursuant to this Agreement, without
ANI's prior, written consent.
17. ANI's RESPONSIBILITIES
To the extent that Purchaser requests Installation/or and Maintenance
Services and/or training services, and ANI accepts the Purchase Order for
such Services, then:
a. ANI shall provide all necessary tools and test equipment required for
the installation, testing and commissioning of the Equipment and
Software.
b. ANI shall work in conjunction with other contractors of Monarch for
the interfacing and integration of ANI equipment and Software with
third party software.
c. ANI shall ensure that Monarch Staff are adequately trained in all
stages of the equipment installation, integration, testing,
commissioning, operations and maintenance stages.
d. ANI shall provide Acceptance Test Procedures, which shall be agreeable
to both parties.
18. NOTICES.
SUPPLY AGREEMENT - PAGE 14
All notices, requests, consents and other communications hereunder must be
in writing and will be deemed to have been properly given when actually
received by the party to whom sent, at the following addresses:
If to ANI: If to PURCHASER:
FAO: Chief Financial Officer Xxxx Xxxxxxx and X. X. Xxxxxxx
Airspan Networks Inc. Monarch Communications Ltd.
00000 Xxxx Xxxxxxx Xxxxxxxxx, Orbital House,
Suite 430, No. 000 Xxxxxxx Xxxx,
Xxxxxxx, Xxxxx,
Xxxxxxx, 00000, Lagos
U.S.A. Nigeria
With a copy to:
Contracts Manager
Airspan Communications Ltd.
Xxxxxxxxx Xxxxx,
Xxxxxx Xxxx,
Xxxxxxxx, Xxxxxxxxx
XX0 0XX
Xxxxxxx
19. HARDWARE AND SOFTWARE VERIFICATION
19.1 If Installation Services are ordered, ANI shall, upon completion of
the installation, test the Equipment. Purchaser may witness the
installation and test performance.
19.2 When the Equipment and Software have satisfactorily completed all of
ANI's tests, ANI shall provide Purchaser with a "Hardware and Software
Verification" certificate. The written acceptance of the certificate by
Purchaser will be deemed, for purposes of this Agreement, as "Completion of
Installation".
19.3 The tests that the ANI Products must successfully complete as part of
the commissioning process are set forth in Exhibit C hereto. Such
commissioning tests may be amended from time to time by agreement of both
parties in writing.
20. PUBLICITY.
SUPPLY AGREEMENT - PAGE 15
Both parties agree not to publish any press releases or otherwise
publicise the existence, or any of the terms, of this Agreement without
the prior written consent of the other party.
21. MISCELLANEOUS.
21.1 This Agreement shall be construed in accordance with and governed
by the laws of England, without regard to its conflicts of law rules.
21.2 (a) Any dispute, controversy or claim between the parties arising
out of, or in connection with, this Agreement, or the breach,
termination or validity thereof will be resolved by mutual agreement of
the parties. If any dispute, controversy, or claim arising out of or
relating to this Agreement, or the breach, termination, or validity
thereof is unable to be resolved by mutual agreement of the parties,
then any such dispute shall be finally resolved by arbitration under
the Rules of the Chartered Institute of Arbitrators, England, as then
in force, by one or more arbitrators appointed in accordance with said
Rules. The place of arbitration shall be London, England. The language
used during arbitration shall be the English language. The parties
agree that the award of the arbitrator(s) shall, except as provided
below, be the sole and exclusive remedy between them regarding the
claims, counterclaims, issues or accounting presented or pled to the
arbitrator(s) and that the award may be enforced in other jurisdiction
in any manner provided by law. The arbitrator(s) shall be entitled to
award to the substantially prevailing party its attorneys fees and
costs incurred in connection with the arbitration proceedings and
preparation for the same.
(b) Notwithstanding the provisions of item (a) above, the parties
hereto shall be entitled to seek injunctive or similar relief from a
court of competent jurisdiction with respect to any actual, impending
or threatened breach of confidentiality provisions and other provisions
of this Agreement, including provisions intended to protect
intellectual property rights. In any court proceedings contemplated by
this item (b), the substantially prevailing party shall be entitled to
recover from the other party its attorneys fees and costs.
21.3 The delay or failure on the part of any of the parties to enforce
at any time any of the provisions of this Agreement or any right with
respect thereto, or to exercise any option herein provided shall in no
way be construed to be a waiver of such provision, rights, or options,
or in any way to affect its right later to enforce them. The exercise
by any of the parties of its rights hereunder or of any options
hereunder under the terms or covenants herein shall not preclude or
prejudice the party
SUPPLY AGREEMENT - PAGE 16
from thereafter exercising the same or any right which it may have
under this Agreement, irrespective of any previous action or
proceeding taken by the party hereunder.
21.4 This Agreement shall be binding upon and inure to the benefit of
the successors, legal representatives and assigns of both parties.
21.5 This Agreement and any Exhibit hereto shall be modified only by an
instrument in writing that is signed by duly authorised representatives
of the parties.
21.6 The provisions of this Agreement are severable, and if any
provision is held invalid or unenforceable in whole or in part in any
jurisdiction, then such invalidity or unenforceability will affect only
such provision or part thereof in such jurisdiction, and will not in
any manner affect the provision in any other jurisdiction, or any other
provision in this Agreement in any other jurisdiction. To the extent
legally permissible, an arrangement that reflects the original intent
of the parties will be substituted for such invalid or unenforceable
provision.
21.7 All obligations that by their nature survive the expiration,
cancellation or termination of this Agreement shall remain in effect
after its expiration, cancellation or termination.
21.8 None of the parties shall be entitled to assign this Agreement or
its rights under it without the prior written consent of the other
party, and such consent shall not to be unreasonably withheld or
delayed.
21.9 In the performance of its obligations under this Agreement, the
parties shall at all times strictly comply with all export laws,
regulations, and orders of the United Kingdom and the United States of
America. Purchaser specifically acknowledges that Equipment, Software,
or technology obtained from ANI pursuant to this Agreement shall not be
exported, re-exported, transhipped, disclosed, diverted, or
transferred, directly or indirectly, contrary to U.K. and U.S. laws,
orders or regulations, which ANI shall provide to the purchaser on
request.
21.10 TAXES
It is hereby agreed that each party shall be responsible for such
taxes, levies and other charges issued in their respective countries in
respect of this agreement.
22. This document constitutes the entire agreement between the parties with
respect to the subject matter hereof, and supersedes all previous
communications, representations, understandings and agreements,
SUPPLY AGREEMENT - PAGE 17
either oral or written, between the parties or any official or
representative thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the Effective Date, such parties acting by their
officers, being thereunto duly authorised.
AIRSPAN NETWORKS INC. MONARCH COMMUNICATIONS LTD.
By:_____________________________ By:__________________________
Name:___________________________ Name:________________________
Title:__________________________ Title:_______________________
SUPPLY AGREEMENT - PAGE 18
EXHIBIT A
"ANI PRODUCTS"
AS4000 AND AS8100 PRODUCTS. PURCHASER MAY ORDER THE FOLLOWING ITEMS:
--------------------------------------------------------------------------------------------------------------------
CATALOGUE NUMBER AND ITEM DESCRIPTION
--------------------------------------------------------------------------------------------------------------------
SUBSCRIBER TERMINAL TYPE
--------------------------------------------------------------------------------------------------------------------
801-6319 : ST-R1, 1-line 64k or 32k POTS (Ant, SIU, internal batt) options: Type 6 Eur
--------------------------------------------------------------------------------------------------------------------
801-6329 : ST-R2, 2-line 64k or 32k POTS (Ant, SIU, internal batt) options: Type 6 Eur
--------------------------------------------------------------------------------------------------------------------
803-6349 : ST-N4, 4-Line 64k or 32k POTS (Ant, SIU) options: Type 6 Eur
--------------------------------------------------------------------------------------------------------------------
804-6319 : ST-B1, (ISDN 2B+D) (Ant, SIU) options: Type 6 Eur
--------------------------------------------------------------------------------------------------------------------
811-6329 : ST-P1V2, Ethernet+2-Line 64 & 32k POTS (Ant, SIU) options: Type 6 Eur
--------------------------------------------------------------------------------------------------------------------
ST ANCILLARIES AND SPARES
--------------------------------------------------------------------------------------------------------------------
890-0009 : ST antenna drop cable kit (300m standard cable)
--------------------------------------------------------------------------------------------------------------------
000-0000-000 : ST Installation toolkit
--------------------------------------------------------------------------------------------------------------------
CT AND AC RACK MECHANICS
--------------------------------------------------------------------------------------------------------------------
700-0002 : CT Rack with RF Combiner shelf + 2 AS4000 Modem shelves (E1)
--------------------------------------------------------------------------------------------------------------------
703-0002 : Rack with 2 AC shelves
--------------------------------------------------------------------------------------------------------------------
CT ANTENNA SYSTEMS
--------------------------------------------------------------------------------------------------------------------
710-6941 : Directional Antenna, 1 feeder port, 90 Deg 3.4-3.7 GHz
--------------------------------------------------------------------------------------------------------------------
CT ANTENNA FEEDER
--------------------------------------------------------------------------------------------------------------------
712-0050 : CT Antenna Feeder 7/8 inch coaxial (1x50m)+ Installation kit
--------------------------------------------------------------------------------------------------------------------
CT RF PLUG IN SETS
--------------------------------------------------------------------------------------------------------------------
720-6300 : CT RF full plug in set 3.4-3.6 GHz Plan 1 (2PA+MON+3PSU+2DIPLNA)
--------------------------------------------------------------------------------------------------------------------
CT AS4000 DA MODEM SHELF CARD SETS AND AS4020 MODEM SHELVES
--------------------------------------------------------------------------------------------------------------------
751-6300 : DA Modem shelf full card set (E1) (3.5MHz) 3.4-3.6 GHz Plan 1
(RF+AU+TU+SC+2PSU+5Modems)
--------------------------------------------------------------------------------------------------------------------
AC SHELF PLUG-INS
--------------------------------------------------------------------------------------------------------------------
780-0000 : AC Basic Shelf card set (Generic E1) (2PSU+SC+CTU+XTU)
--------------------------------------------------------------------------------------------------------------------
000-0000-000 : E1 TU card
--------------------------------------------------------------------------------------------------------------------
000-0000-000 : AC CU card
--------------------------------------------------------------------------------------------------------------------
000-0000-000 : AC PTU card
--------------------------------------------------------------------------------------------------------------------
SOFTWARE AND NMS
--------------------------------------------------------------------------------------------------------------------
870-1000 : AS8100/8200 Sitespan Desktop Hardware Platform (Windows NT PC +
Serial port expansion.)
--------------------------------------------------------------------------------------------------------------------
870-2100 : AS8100 Sitespan Client / Server software (AS4000 support) and RTU license
--------------------------------------------------------------------------------------------------------------------
870-2300 : AS8100/8200 Sitespan Shelf License
--------------------------------------------------------------------------------------------------------------------
870-2900 : Annual Maintenance/Upgrade charge for Sitespan software
--------------------------------------------------------------------------------------------------------------------
871-xxxx : V5.x License for 1000 subscribers
--------------------------------------------------------------------------------------------------------------------
872-1000 : STMON for Windows 98 and NT
--------------------------------------------------------------------------------------------------------------------
DOCUMENTATION
--------------------------------------------------------------------------------------------------------------------
880-2000 : AS4000 DA Documentation (CD-ROM)
--------------------------------------------------------------------------------------------------------------------
880-3000 : AS8100/8200 (Sitespan) Documentation (CD-ROM)
--------------------------------------------------------------------------------------------------------------------
SERVICES (NB. ESTIMATE ONLY. TRAVEL AND EXPENSES NOT INCLUDED)
--------------------------------------------------------------------------------------------------------------------
885-2000 : Installation services (per day, excl T&E)
--------------------------------------------------------------------------------------------------------------------
SUPPLY AGREEMENT - PAGE 19
EXHIBIT B
"PRICE LIST"
---------------------------------------------------------------- -----------------------------------------------------------
SCHEDULE OF EQUIPMENT FOR MONARCH NIGERIA PROJECT Quantities
-----------------------------------------------------------
Infrastructure Subscribers
--------------------------------------------------------- ----------------------------------------------------- -----------
CATEGORIES NUMBER AND ITEM DESCRIPTION Price Agro Xxxxx Xxxxx Apapa Agege Amuwo-Odofia Units
--------------------------------------------------------- ------------------------------------------------------------------
SUBSCRIBER TERMINAL TYPE
801-6319 : ST-81, 1-line 84k or 32k POTS (Ant, SIU, $* *
internal batt) options: Type 6 Eur
801-6329 : ST-R2, 2-line 64k or 32k POTS (Ant, SIU, $* *
803-6349 : XX-X0, 0-Xxxx 00x xx 00x XXXX (Xxx, XXX) $* *
804-6319 : ST-B1, (ISDN 28+D) (Ant, Siu) options: $I
811-6329 : ST-P1V2, Ethernet+2-Line 64 & 32k POTS $* *
(Ant, SIU) options: Type 6 Eur
---------------------------------------------------------
TOTAL SUBSCRIBER TERMINALS
--------------------------------------------------------- ------
ST ANCILLARIES AND SPARES
800-0009 : ST antenna drop cable kit (300m standard $* *
cable)
000-0000-000 : ST installation toolkit $*
TOTAL ST ANCILLARIES AND SPARES
--------------------------------------------------------- ------
CT AND AC RACK MECHANICS
700-0002 : CT Rack with RF Combiner shelf + 2 $* 2 * * * *
AS4000 Modem shelves (E1)
703-0002 : Rack with 2 AC shelves $* 2
TOTAL CT AND AC RACK MECHANICS
--------------------------------------------------------- ------
CT ANTENNA SYSTEMS
710-6941 : Directional Antenna, 1 feeder port, 90 $* * * * * *
Deg 3.4-3.7 GHz
TOTAL CT ANTENNA SYSTEMS
--------------------------------------------------------- ------
CT ANTENNA FEEDER
712-0050 : CT Antenna Feeder 7/8 inch coaxial $* * * * * *
(1x50m) + installation kit
TOTAL CT ANTENNA FEEDER
--------------------------------------------------------- ------
CT RF PLUG IN SETS
720-8300 : CT RF full plug in set 3.4-3.8 GHz Plan $* * * * * *
1 (2PA+MON+3PSU+2D1PLNA)
TOTAL CT RF PLUG IN SETS
--------------------------------------------------------- ------
CT AS4000 DA MODEM SHELF CARD SETS AND AS4020 MODEM
SHELVES
751-6300 : DA Modem shelf full card set (E1) $* * * * * *
(3.5MHz) 3.4-3.6 GHz Plan 1
(RF+AU+TU+SC+2PSU+5Modems)
TOTAL CT AS4000 DA MODEM SHELF CARD SETS AND
AS4020 MODEM SHELVES
--------------------------------------------------------- ------
AC SHELF PLUG-INS
780-0000 : Ac Basic Shelf card set (Generic E1) $* *
(2PSU+SC+CTU+XTU)
000-0000-000 : E1 TU card $* *
000-0000-000 : AC CU card $* *
000-0000-000 : AC PTU card $* *
TOTAL AC SHELF PLUG-INS
--------------------------------------------------------- ------
SOFTWARE AND NMS
870-1000 : A58100/8200 Sitespan Desktop Hardware $* *
Platform (Windows NT PC + Serial port expansion)
870-2100 : A58100 Sitespan Client / Server software $* *
870-2300 : A58100/8200 Sitespan Shelf License $* *
870-2900 : Annual Maintenance/Upgrade charge for $* *
871-xxxx : V5.x License for 1000 subscribers $* *
872-1000 : STMON for Windows 98 and NT $* *
TOTAL SOFTWARE AND NMS
--------------------------------------------------------- ------
DOCUMENTATION
580-2000 : AS4000 DA Documentation (CD-ROM) $* *
580-3000 : AS8100/8200 (Sitespan) Documentation $* *
TOTAL DOCUMENTATION
--------------------------------------------------------- ------
SERVICES (N9, ESTIMATE ONLY. TRAVEL AND EXPENSES NOT
INCLUDED)
885-2000 : Installation (per day, excl T&E) $* *
885-1000 : Site Survey (per day, excl T&E) $*
885-3000 : Radio Planning (per day, excl T&E) $*
885-4000 : Airspan Training (per day at Oxbridge $*
885-4001 : Airpsan Training (per day on Customer $*
885-4002 : Airspan Training (per day per additional $*
885-5000 : Project Management (per manager per day, $*
TOTAL SERVICES
--------------------------------------------------------- ------ ---- ------ ----- ------ ------ --------- -------
TOTALS $* $* $* $* $* $*
--------------------------------------------------------- ------ ---- ------ ----- ------ ------ --------- -------
---------------------------------------------------- ------- --------------------
SUMMARY DISCOUNT SCHEDULE
---------------------------------------------------- ------- --------------------
Infrastructure Total >10,000 Sts per yr
$* ------- --------------------
Subscribers
---------------------------------------------------- ------- --------------------
-11.00% R1 *
$* R2 *
----------------------------------------------------
Subscriber Total N4 *
$* B1 *
----------------------------------------------------
Grand Total P1V2 *
$* ------- --------------------
---------------------------------------------------- INFRASTRUCTURE
------- --------------------
Quote ref 2001-33 R11a *
14/09/2001 ------- --------------------
1. All prices are quoted CIP Lagos (as per incoterms 2000)
2. Payment is by LOC or other similar means
3. Please refer to the quote reference number in any communications with
Airspan.
4. Payment 10% with order, 50% 50 days after delivery, 40% 140 days after
delivery.
5. Initial Firm Order placed by 15/9/01 for 5 infrastructure sites and 1,700
STs.
6. Delivery of infrastructure and 500 STs to freight forwarders by end October
2001, delivery in country by end November 2001. Balance of STs to be
delivered by end December 2001.
7. ACL will provide two site visits in Lagos during the first year FOC.
8. ACL will provide S70-2300 and 871-xxxx FOC for later stages of
infrastructure.
9. ACL will provide 20 working days of ISTAS time for ST installation and
training FOC
--------------------------------------------------------------------------------
[*] Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
In event of a further order being placed for delivery before 15th September
2002 of 6.000 STs or greater, then the unit price reduces for the whole volume
to that shown in the >10,000 STs column. A purchase credit will be applied to
this additional order such that the aggregate unit price of the total quantity
delivered during the year will equal the prices in the >10,000 STs column.
SUPPLY AGREEMENT - PAGE 20
