EXHIBIT-4.8
EX-4.8
LOCAL MULTI POINT DISTRIBUTION SYSTEM
(LMDS)
PRODUCTS PURCHASE AGREEMENT
NUMBER 99-001
TABLE OF CONTENTS
PAGE
Article 1. PURPOSE 1
Article 2. DEFINITIONS 1
Article 3. PURCHASES AND PURCHASE ORDERS 3
Article 4. GENERAL OBLIGATIONS OF THE PURCHASER 3
Article 5. OBLIGATIONS AND REPRESENTATIONS OF MOTOROLA 4
LMDS PRODUCTS PURCHASE AGREEMENT NO.99-001
LMDS PRODUCTS PURCHASE AGREEMENT (THIS "Agreement") dated as of 09,April 1999,
between MOTOROLA, INC., a Delaware corporation, acting through the Ground
Systems Division of its Satellite Communications Group, with offices at 0000 X.
Xxxxx Xxxx, Xxxxxxxx Xxxxxxx, 00000, X.X.X. ("Motorola"), and American Wireless,
Inc.. a Utah corporation (the "Purchaser"). Motorola and the Purchaser are
hereinafter sometimes referred to collectively as the "Parties".
RECITALS
WHEREAS. Motorola has designed certain hardware and software for use in
connection with wireless broadband systems;
WHEREAS Motorola desires to sell to the Purchaser and the Purchaser
desires to purchase from Motorola from time to time certain Products (as
hereinafter defined) pursuant to the terms and conditions of this Agreement;
NOW' THEREFORE, in consideration of the foregoing recitals and the mutual
obligations herein contained, the Parties agree as follows:
ARTICLE: 1. PURPOSE
the purpose of this Agreement is to establish the terms and conditions
that will apply to the purchase from time to time by the Purchaser from Motorola
of Products. Purchases hereunder will be accomplished by means of Purchase
Orders (as hereinafter defined).
The Parties intend that each Purchase Order will be a part of 7 and be
governed by, the terms and conditions of this Agreement, except with respect to
those terms and conditions negotiated for a specific Purchase Order and
designated in such Purchase Order as taking precedence Ever this Agreement.
ARTICLE 2. DEFINITIONS
Unless otherwise indicated in this Agreement, the following terms, when
written herein with capitalized initial letters, shall have the meanings set
forth below.
"AGREEMENT": This Products Purchase agreement, including all schedules
and exhibits hereto, as amended, supplemented or otherwise modified from time to
time.
"FEATURE": A functionality or performance characteristic of Software.
"FIRMWARE": Software in object code form that is imbedded in Hardware.
-1
LMDS PRODUCTS PURCHASE AGREEMENT NO.99-001
"GOVERMMENTAL AUTHORITY": Any nation or government any state or other
political subdivision therof and any enity exercising executive legislative,
judicial, regulatory or administrative functions of or pertaining to government
"Hardware": The tangible and physical goods portion of the Products
purchased hereunder, but not software or firmwar
"INTELLECTUAL PROPERTY" All trade secrets' know-how' discoveries,
improvements, inventions, technical data, writings' software in whatever form.
Proprietary Information', patents, invention certificates arid applications
therefore, copyright;, and maskworkss and applications therefor
"PERSON": An individual partnership, limited liability company,
corporation, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of whatever
nature.
"PRODUCTS": The Hardware, Software and Services purchased hereunder and
described in the Purhase Orders.
"PROPRIETARY INFORMATION": as defined in Article 12(A).
"PURCHASE ORDER". Each document executed by the Purchaser and Motorola,
substantially in the form of Exhibit A hereto, which sets forth the Product(s)
to be said by Motorola and purchased by Purchaser. All Purchase Orders shall be
listed on Schedule I hereto. Motorola shall update Schedule I from time to time
as necessary to accurately reflect the information therein. Any reference in
this Agreement to Schedule I shall be deemed to be a reference to Schedule I as
ascended and in effect from time to time
"SERVICES": The services to be performed by or on behalf of Motorola from
time to time as set forth in the Purchase Orders.
"SITE": Each of the geographic locations owned, operated or controlled by
the Purchaser at which any Hardware or 'Software purchased hereunder is or is
intended to be installed and/or any Services are or are intended to be
performed.
"SOFTWARE": The object-code computer programs, including Firmware object
code, licensed or sublicensed by Motorola for use solely in conjunction with the
operation of the Products. ANY REFERENCE TO SOFTWARE BEING SOLD"PROVIDED" OR
"PURCHASED ISI UNDERSTOOD TO BE REFERENCE TO THE SOFTWARE BEING LICENSED OR
SUBLICENSED SOLELY AS PROVIDED IN THE SOFTWARE LICENSE.
"SOFTWARE LICENSE": The software license set forth in Exhibit B hereto.
"TAXES": as defined in Article 7(B)(1).
ARTICLE 3. PURCHASES AND PURCHASE ORDERS
A. Motorola agrees to sell to the Purchaser, and the Purchaser agrees to buy
from Motorola, such Products as are described in the Purchase Orders, which
Purchase Orders are made a part hereof if fully set forth herein
B. The terms and conditions of this Agreement unless expressly modified in a
Purchase Order, shall be a part of and shall govern each such Purchase
Order. Any Products purchased under a Purchase Order shall be deemed to be
purchased pursuant to this Agreement
C. The Purchaser and Motorola shall mutually agree upon the terms of any
Purchase Order and shall both sign the Purchase Order to memorialize such
agreement No Purchase: Order shall he binding on either party unless and
until such Purchase Order has been signed by both parties.
ARTICLE 4.~A~4 OBLIGATIONS OF THE PURCHASER
The Purchaser shall, as applicable and at its own cost and expense:
A. Except as otherwise provided in Article 21, acquire in a timely fashion from
the appropriate Governmental Authorities and others and maintain in effect, all
permits and licenses, including, without limitation, radio frequency licenses.
radio operation licenses and any other required governmental, regulatory and
type, approvals, and all other, authorizations and approvals from Governmental
authorities and others as may be required from time to time to (i) import, and
install the Products in accordance with the schedule set forth in each Purchase
Order and (ii) to test and operate such Products.
B. Assist Motorola ire procuring all necessary permits licenses. visas or other
approvals, as may be required or reasonably convenient to allow Motorola
personnel and the personnel of Motorola's suppliers and subcontractors to travel
to, stay in and work in all Sites outside of the United States where the work
hereunder is to be performed, and provide such assistance as necessary to permit
Motorola to perform its obligations under this Agreement in accordance with the
schedule set forth in each Purchase Order.
C. Make in a timely fashion all business and legal arrangements as reasonably
required with Site owners or operators and others to allow she completion of the
Services in accordance with the schedule set forth in each Purchase Order.
D. Acquire and provide in a timely fashion all of the Sites, buildings and other
physical infrastructure, interconnection facilities, telephone service, utility
service, Site security, facilities maintenance, janitorial service and other
services and items necessary or reasonably convenient to allow the completion of
the Services in accordance with the schedule set forth in each Purchase Order.
E. Adhere to the schedule for performance of the Purchaser's responsibilities
set forth in each Purchase Order
F. Make all payments in accordance with Article 7, Payment and Pricing
G. Notify Motorola in writing at least thirty (30) calendar days in advance of
any requirement for a pricing breakout with respect to such item which imposed
by law or by the Purchaser's insurer such notice shall state the level of
pricing detail which is required by such law or by the Purchaser's insurer, as
the case may be.
H. Timely perform all of its other obligations under this Agreement, any
Purchase Order and any other agreement delivered in connection herewith.
ARTICLE 5. OBLIGATIONS AND REPRESENTATIONS OF MOTOROLA
Motorola shall, as applicable:
A. Provide and install the Products in accordance with Motorola's
obligations expressly set forth in each Purchase Order.
B. Adhere to the schedule set forth in each Purchase Order for performance
of its responsibilities set forth therein.
C. Obtain all export licenses or other approvals necessary to export the
Products from their country of origin or manufacture to the applicable
Site
D. Reasonably cooperate with the Purchaser in the Purchaser's performance of
its obligations under Articles 4(A) and (id) hereof
E. Reasonably support the Purchaser in the Purchaser's responses to requests
from
F. Governmental Authorities related to the Products to be installed and
operated within the lawful territory of such Governmental Authority.
F. Upon proper notice Xxx the Purchaser pursuant to Article 4(G) hereof
prior to delivery of any item of Hardware, provide, to the extent
commercially reasonable, a pricing breadcout of such item to the
Purchaser to the extent required by law or by the Purchaser's insurer.
Such pricing breakout shall meet, to the extent commercially reasonable,
the level of pricing detail sp~,~:ed Id; the Purchaser in its notice
given to Motorola pursuant to Article 4(G) hereof.
G. Timely perform all of its other obligations under this Agreement, each
Purchase Order and any other agreement
A. At any time during its performance of this Agreement, Motorola may implement
changes in the Products, modify the drawings and specifications relating
thereto, substitute different prducts therefore of substitute different
components therefore; provided however, that any such changes, modifications or
substitutions, under normal and proper use.:
1. Shall not materially or adversely affect physical or functional
interchangeability or performance of the Product (except where
there is written agreement between-the-Parties that specific
characteristics will be so affected);
2. Shall not detract from the safety of the Product; and
3. Shall be type-accepted by the appropriate authority, if required.
B. If Motorola exercises its right under this Article to change specifications
or Products or to substitute Product then Motorola -will provide reasonable
amounts of free training to Purchaser regarding any differences in Product
installation, operation and maintenance.
C. Changes in specifications for components Motorola purchases from third
parties, changes in manufacturers from whom Motorola buys components; equipment,
and/or Software, and other reasons may make it necessary for Motorola to change
the Specifications for Products from time to time, provided Motorola complies
with the requirements of Article 6 A.
ALL OF WHICH OTHER WARRANTIES BEE SPECIALLY EXCLUDED, INCLUDING,
WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICILAR PURPOSE. IN NO EVENT SHALL MOTOROLA OR
ITS SUPPLIERS OR SUBCONTRACTORS AT ANY LEVEL BE LIABLE
FOR-INDIRECT NCIDENTAIL SPECIAL, PUNITIVE-OR-CONSEQENTIAL
DAMAGES; PROVIDED, HOWEVER, THAT IF THE LAW OF ANY JURISITICITION
APPLICABLE TO THIS AGREEMENT DOES NOT PERMIT SUCH DAMAGES TO BE
COMPLETELY DISCLAIMED THIS CLAUSE SHALL BE INTERPRETED AS
NECESSARY TO GIVE MOTOROLA AND ITS SUPPLIERS AND SUBCONTRACTORS
THE FULL BENEFIT OF ANY
DISCLAIMER OR LIMITATION OF SAID DAMAGES TO THE FULL EXTENT
PERMITTED UNITER SUCH LAW
D. Motorola's additional warranty obligations (if any) with respect
to any Products will be set forth in the applicable Purchase
Order, and for the term and at the additional price (if any) set
forh in the applicable Purchase Order.
1. Motorola shall send notices to the purchaser as follows
American Wireless, Inc.
X.X.Xxx 2500
000 Xxxx Xxxxxxx Xxxx
Xx. Xxxxxx XX 00000 XXX
Attn: Mr. Xxxxx Xxxxx,
President
Telephone: (000) 000 0000
Fax: (000) 000 0000
2. The Purchaser shall send notices to Motorola as follows:
MOTOROLA, INC.
GROUND SYSTEMS DIVISION
0000 X. Xxxxx Xxxx
Xxxxxxxx, Xxxxxxx. 00000-0000
Attn: Xxxxxxx X. Xxxxxxxxxx
Xx Contract Manager
Mail Drop: VLSI
Telephone: (000) 000-0000
Fax: (000) 000-0000
D. Either party may change the address, telefacsimile number, or person for
receiving notices from time to time by Written notice to the other party of
such change.
AGREED AND ACCEPTED BY
AMERICAN WIRELESS, INC. FIRST FLORIDA COMMUNICATIOINS
By By
Name Name
Title Title
Date Date
