Contract
Exhibit
10.27
XXXXX
INDICATES MATERIAL THAT WAS OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT WAS
REQUESTED. ALL SUCH OMITTED MATERIAL WAS FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED.
Agreement
For
the Purchase and Sale of GigaBeam WiFiberTM
Links
EMPIRE
TELECOM SOLUTIONS
GigaBeam
agrees
to
sell and Empire Telecom Solutions, Inc. (Empire) agrees to purchase, pursuant
to
the terms of this purchase order, twenty (20) Full Duplex GigE WiFiber™ wireless
fiber communication links to be used for connectivity between designated
Empire
customer locations as listed in the table below.
|
Link
#
|
Bullding
|
Demarc
Location
|
Building
|
Demarc
Location
|
Link
Distance
|
|
0
|
00
Xxxxxx Xxxx
|
TBD
|
2
Lafayette Street
|
XXX
|
XXX
|
|
2-20
|
XXX
|
XXX
|
XXX
|
XXX
|
TBD
|
Pricing
|
Link
#
|
Model
|
Description
|
[XXXXX]
|
[XXXXX]
|
Total
|
|
1-20
|
G-1.25-24
|
Full
Duplex GigE Transceiver Link Pair with [XXXXX]
|
$[XXXXX]
|
$
[XXXXX]
|
$[XXXXX]
|
|
Total
20 units
|
$[XXXXX]
|
$[XXXXX]
|
$[XXXXX]
|
In
the
event GigaBeam decreases its list price during the term of this agreement,
GigaBeam will offer Empire the [XXXXX] discount on any decreased list pricing
provided Empire is installing and paying for links in accordance with the
Installation Schedule below and is in compliance with all other terms and
conditions of this agreement.
Installation
Installation
will be performed by GigaBeam or certified GigaBeam Install partners.
Empire Telecom Solutions must be certified by GigaBeam to install the GigaBeam
WiFiber links prior to Empire’s first link installation. GigaBeam will provide
certification training at the rate of $[XXXXX]
per
Empire Telecom Solutions [XXXXX].
GigaBeam may also provide a wholesale installation service through direct
personnel or another certified third party GigaBeam install company.
GigaBeam
will perform [XXXXX]services
at the [XXXXX]rate
of
$[XXXXX].
Installation
Schedule
|
Link
#
|
Location
|
Site
Survey
|
Site
Prep
|
Installation
|
|
1
|
TBD
|
By
2/15/2006
|
2/28/2006
|
by
3/1/2006
|
|
2-5
|
EMPIRE
|
XXX
|
XXX
|
by
9/30/2006
|
|
6-10
|
EMPIRE
|
XXX
|
XXX
|
by
12/31/2006
|
|
11-20
|
EMPIRE
|
XXX
|
XXX
|
by
3/1/2007
|
Xxxxxx
agrees to complete installation of all twenty links in accordance with the
foregoing schedule. Empire will update the installation schedule on a
[XXXXX]
basis.
Empire understands that GigaBeam lead time to delivery may be a [XXXXX].
Empire
will request [XXXXX]
in
writing.
Monitoring
and Maintenance
In
the
event Empire elects link monitor services, GigaBeam will monitor
deployed links from its Link Monitoring Center (LMC). GigaBeam will
monitor link performance and key link transceiver parameters and will provide
the following level of support: 24/7 link monitoring and service, [XXXXX]reports,
[XXXXX]
within
[XXXXX],
[XXXXX]access
to
[XXXXX],
[XXXXX].
Empire
will provide [XXXXX]GigaBeam
[XXXXX].
GigaBeam
will provide Monitoring and Maintenance services at the rate of [XXXXX].
This
sale
represents [XXXXX],
which
is strictly confidential, in consideration for Empire role providing GigaBeam
with [XXXXX]
and [XXXXX].
In
addition, the [XXXXX]to
Empire
is based on its firm commitment to purchase and install a minimum of 20 links
no
later than 3/1/2007.
Each
link
will be deemed accepted by Empire [XXXXX].
If
GigaBeam offers more favorable prices, terms, conditions, warranties, or
other
benefits on GigaBeam [XXXXX]subject to this Agreement to any other [XXXXX]during
the term of this Agreement (the “[XXXXX]”)
then,
Buyer shall be entitled to order such [XXXXX] under
identical terms and conditions offered to the [XXXXX].
The
[XXXXX] will be extended to Empire for future purchases of additional links
[XXXXX] for all purchases beyond the initial 20 units (“Additional Link”) placed
with GigaBeam prior to December 31, 2006 and installed prior to 03/31/07,
provided that Empire is in compliance with all terms and conditions of this
agreement.
For
purposes of this Agreement, a “[XXXXX]”
is any [XXXXX] GigaBeam [XXXXX]
(limited
to the [XXXXX]) and the [XXXXX] in the [XXXXX] that
has
purchased and paid for the GigaBeam equipment specified in this Agreement
during
the Term of this Agreement.
In
the
event Empire fails to accept delivery of at least 5 links by 9/30/2006, Empire
will pay GigaBeam the dollar amount equal to the [XXXXX].
In the
event that Empire accepts less than 20 links by 3/1/2007, Empire will pay
GigaBeam damages equal to [XXXXX].
For
example, if Empire only accepts [XXXXX]
links,
the penalty is [XXXXX]).
The
[XXXXX]
is
due no
later than [XXXXX].
Any
Additional Links ordered under this agreement will be considered as a firm
commitment requiring full payment on or before [XXXXX].
All
link
purchases are subject to the standard terms and conditions on the last page
of
this document.
EMPIRE
/s/Xxxxx
Xxxxxx Date
01/29/06
GigaBeam
Corporation /s/Xxx
Xxxxxxx Date
02/01/06
STANDARD
TERMS & CONDITIONS FOR PURCHASE AGREEMENT
1.
GENERAL.
As used
herein, the term "Seller" shall refer to GigaBeam Corporation and the term
"Buyer" shall refer to the person or entity desiring to purchase products
and or
services from Seller. ALL ORDERS ARE SUBJECT TO ACCEPTANCE BY SELLER AT ITS
CORPORATE HEADQUARTERS. NO FORM OF ACCEPTANCE EXCEPT SELLER'S WRITTEN
ACKNOWLEDGMENT OR SELLER'S COMMENCEMENT OF PERFORMANCE SHALL CONSTITUTE A
VALID
ACCEPTANCE OF THE BUYER'S ORDER. ANY SUCH ACCEPTANCE IS EXPRESSLY CONDITIONED
UPON ASSENT TO THE TERMS HEREOF TO THE EXCLUSION OF ALL OTHER TERMS; BUYER
SHALL
BE DEEMED TO HAVE ASSENTED TO THE TERMS HEREOF UPON ACCEPTING DELIVERY OF
ANYTHING SHIPPED BY SELLER IF TENDER OF THESE TERMS IS DEEMED AN OFFER.
ACCEPTANCE IS EXPRESSLY LIMITED TO THE TERMS HEREOF.
2.
PRICES.
Prices for all of Seller's products or services shall be in accordance with
the
applicable purchase order accepted by Seller in writing. Transportation charges
from Seller's shipping location, insurance premiums, taxes and other
governmental charges related to the manufacture, sale, possession or resale
of
the products specified herein, shall be the sole responsibility of the Buyer
and
shall be paid to Seller in addition to the purchase price of the products
and
services, unless otherwise agreed in writing.
3.
TERMS
OF PAYMENT. Invoices shall be due and payable within thirty (30) days from
the
date of invoice, until Seller in its sole discretion and at any time revokes
credit approval at which time all amounts shall become immediately due and
payable. All payments shall be made in U.S. dollars unless otherwise
specifically agreed to in writing by Xxxxx and Seller. Seller shall have
the
option of requiring the Buyer to make advance and/or progress payments during
the course of manufacture. Amounts that remain unpaid when due to Seller
shall
accrue a service charge of one and one-half percent (1.5%) per month (or
such
higher rate as may be the maximum allowable by law) from any such due date
until
date of full payment. Seller reserves the right at any time and for any reason
to require payment in advance or C.O.D., or otherwise to modify, suspend,
or
terminate any credit terms previously extended to Buyer.
4.
DELIVERY AND TITLE. All sales are made Ex Works Seller's warehouse or place
of
production. Delivery dates are quoted from [XXXXX]., where applicable, whichever
is later. Delivery [XXXXX]. In the absence of specific shipping instructions,
Seller shall select a carrier that shall be deemed to act as Xxxxx's agent,
notwithstanding any payment by Seller of freight charges made for Buyer's
account. Unless otherwise specified, Buyer is obligated to obtain insurance
against damage to the products being shipped. Seller shall have no liability
for
any events occurring during shipment. Unless otherwise specified, the product
will be shipped in standard commercial packaging.
5.
SHIPMENTS. All shipping dates are [XXXXX]. Seller will not be liable for
any
loss, damages or penalty resulting from delay in delivery when such delay
is due
to causes beyond the reasonable control of Seller, including but not limited
to
supplier delay, force majeure, act of God, act of Government, labor unrest,
flood, fire, explosion, earthquake, or by excess demand for its products.
If
Buyer requests [XXXXX]. Buyer will bear the risk of loss of the equipment
during
such [XXXXX].
6.
CLAIMS.
Buyer
shall be deemed to have accepted the products [XXXXX]. Buyer expressly waives
any right to revoke [XXXXX] thereafter. Claims of late delivery are barred
unless made prior to receipt of products and the receipt of any products
shall
constitute a waiver of any claim that such items were delivered
late.
7.
LIMITED
WARRANTY. Seller warrants to BUYER ONLY that the products will be substantially
free from defects in material and workmanship for 12 months after delivery
to
Buyer. Products purchased from Seller which do not comply with the warranty
and
are returned to the Seller during such period will be repaired or replaced
at
Seller's option. SELLER MAKES NO OTHER WARRANTIES WITH RESPECT TO THE PRODUCTS
OR ANY SERVICES AND DISCLAIMS ALL OTHER WARRANTIES, INCLUDING WARRANTIES
OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. The
above
warranty does not extend to any product that is modified or altered, is not
maintained to Seller's maintenance recommendations, is operated in a manner
other than that specified by Seller, or is subject to abuse, misuse, accident,
disaster, alterations, neglect or other improper treatment. Xxxxx's sole
remedy
with respect to any warranty or defect is as stated above.
8.
LIMITATION OF LIABILITY. SELLER WILL NOT BE LIABLE UNDER ANY PROVISION OF
THESE
TERMS OR UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL
OR
EQUITABLE THEORY (A) FOR ANY AMOUNTS IN EXCESS IN THE AGGREGATE OF THE AMOUNTS
PAID TO SELLER HEREUNDER DURING THE TWELVE MONTH PERIOD PRIOR TO DATE THE
CAUSE
OF ACTION AROSE, OR (B) FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR (C)
FOR
COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES.
9.
PROPRIETARY RIGHTS. Unless otherwise agreed to in writing, any and all
commercial or technical information disclosed in any manner or at any time
by
Seller to Buyer shall be deemed secret and confidential. Except as expressly
allowed herein, Buyer shall not use or disclose any such information and
Seller
expressly reserves all rights with respect thereto. Buyer acknowledges that
the
products sold by Seller hereunder contain trade secrets and other proprietary
information belonging to Seller, and the products sold by Seller hereunder
are
proprietary to Seller. Buyer shall not disassemble, decompile or otherwise
reverse engineer the Seller's products.
10.
TAXES
AND DUTIES. Any taxes, fees, charges or assessments of any nature levied
by any
governmental authority other than the U.S.A. whether levied against Buyer,
Seller, or Sellers subcontractors or partners, will be paid by Xxxxx. If
Seller
is required by law or otherwise to pay any such levy and/or fines, penalties,
or
assessments as a result of Xxxxx's failure to comply with any applicable
laws,
the amount of payment so made by Seller will be fully reimbursed by Xxxxx
to
Seller upon submission of Seller's invoices. Xxxxx agrees to pay a 1.5% per
month, from date of invoice, service charge on unpaid amounts.
