PURCHASE AGREEMENT
THIS AGREEMENT is made as of December 22nd, 1999 (the "Effective Date") by
and between ADAPTIVE BROADBAND CORPORATION ("Adaptive Broadband"), a Delaware
corporation with a principal office at 0000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, XX
00000, and TELECOM WIRELESS CORPORATION ("Buyer"), a Utah corporation with a
principal office at 0000 XXX XXXX. XXXXX #0000, XXXXXXXXX, XX. 00000.
RECITAL:
Adaptive Broadband is a developer, manufacturer and supplier of wireless
telecommunications equipment. Buyer desires to provide wireless
communications network services in North America ("Territory") for
Small/Medium Businesses and Consumers ("Markets"). 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. Buyer agrees to buy and Adaptive Broadband agrees to
sell to Buyer the products described in and in accordance with
EXHIBIT A attached to this Agreement ("Products") and the services
described in EXHIBIT B attached to this Agreement ("Services")
under the terms and conditions of this Agreement.
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.
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 accepts such other
or additional terms and conditions in writing with specific
reference to the conflict or addition.
2. PRICING AND PAYMENT.
a. PRICING. All prices are FOB Adaptive Broadband's relevant facility
or its supplier's dock, as may be specified by Adaptive Broadband,
and are valid for the term of this Agreement. The prices for
Products and Services are set forth in EXHIBIT A and EXHIBIT B,
respectively. For so long as Buyer is in compliance with its
obligations under this Agreement, the prices charged to Buyer for
Products under this Agreement will be at least as favorable as
those offered by ADAP to customers purchasing those Products on
like quantities, on like terms, over like periods of time.
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. FORECASTING AND QUANTITY COMMITMENTS.
a. FORECASTS. Each month, Buyer will provide Adaptive Broadband with
(a) a rolling six month forecast of specific Product unit
requirements for each of those six months, and (b) firm Purchase
Order covering its specific Product unit requirements for a
rolling 90 days before desired shipment.
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b. FIRM COMMITMENT. Buyer agrees to purchase a minimum of 173,400
AB-Access units (in any combination of access points and
subscriber units) during the term of this Agreement as and when
described in EXHIBIT A.
c. INITIAL PURCHASE ORDER. Within 7 days after the Effective Date,
Buyer will submit to Adaptive Broadband a Purchase Order for
total value of Exhibit D attached. From that Purchase Order,
Buver will accept delivery of the equipment required for initial
UNII trial identified in Exhibit E, within the first 45 days
after the Effective Date. Adaptive Broadband will provide a Test
Plan for the Trial. Telecom Wireless Corp will install this
equipment within 2 weeks after receipt. Then Adaptive Broadband
and Telecom Wireless will jointly conduct that Test Plan and,
upon successful completion of the Test Plan or by March 15th
2000, whichever first occurs, Telecom Wireless Corp agrees to
remit payment in full for all equipment identified in Exhibit D
column "Q1". By June 1st 2000, Telecom Wireless Corp agrees to
take delivery of all equipment in Exhibit D column "Q2". By
September 1st 2000 Telecom Wireless Corp agrees to take delivery
of all equipment in Exhibit D column Q3 and by December 1st 2000
Telecom Wireless Corp agrees to take delivery of all equipment in
Exhibit D column Q4. Subject to the remaining provisions of this
Agreement, Telecom Wireless Corp retains the right to move
Quarterly shipment dates forward or backward, provided that at
the end of Q4 calendar Year 2000, minimum commitments in Exhibit
"A" have been met.
4. 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.
5. 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.
6. REPRESENTATIONS, WARRANTIES, AND COVENANTS.
a. BY ADAPTIVE BROADBAND. Adaptive Broadband represents and warrants
to Buyer 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 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. (iii) All
governmental 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
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its officers, directors, employees, contractors, consultants, and
agents will not violate the legal and/or equitable rights or
interests of any third party.
7. TERM AND TERMINATION.
a. TERM. This Agreement will be effective as of the Effective Date
and will continue for the period ending December 22th 2004
thereafter, subject to earlier termination in accordance with this
Agreement.
b. TERMINATION. Adaptive Broadband and Buyer each may by written
notice to the other terminate this Agreement (i) If a
receiver is appointed for the other party or its property; (ii)
if the other 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 the other party under
bankruptcy, insolvency, or debtor's relief law, and those
proceedings will not be vacated or set aside or stayed within
sixty (60) days from the date of the commencement thereof; (iv)
if the other party is sequestered by any government authority; or
(v) if Buyer is liquidated, dissolved, or ceases actively doing
business in connection with the Products. In addition, Adaptive
Broadband may by written notice terminate this Agreement if it is
not satisfied with the sales or promotional performance of Buyer.
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 Purchase Order
accepted by Adaptive Broadband prior to the effective date of the
expiration or termination until each party's obligations with
respect to that Purchase 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 expiration or termination. (iii)
Notwithstanding the expiration or early termination of this
Agreement, Section 7 ("Term and Termination") and Section 8
("Miscellaneous") and the provisions of Exhibit C ("Terms and
Conditions") as they apply to any outstanding Purchase Orders and
Products purchased shall remain in full force and effect. (iv)
The "Confidentiality" provision of EXHIBIT C will survive for a
period of 5 years thereafter. (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 but which are not needed by Buyer in
connection with installed Products; 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; and any other items
which Adaptive Broadband may reasonably request. (vi) Any
additional payment provisions tied to Buyer's failure to purchase
minimum quantities of Products and Services and the prerequisites
of those payment provisions will survive until Buyer's
obligations under those provisions, if any exist immediately
before or upon that expiration or termination, are satisfied.
8. 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.
b. INDEPENDENT CONTRACTOR. Each party acknowledges and agrees that
this Agreement establishes an independent contractor relationship
and each disclaims the
Page 3
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) The extent of Adaptive
Broadband's liabilities to Buyer and indemnification obligations
are solely and exclusively as set forth in EXHIBIT C. (ii) Buyer
agrees to indemnify and hold Adaptive Broadband and Adaptive
Broadband's successors and assigns harmless from and against any
and all judgments, fines, amounts paid in settlement, damages,
claims, costs, expenses (including attorneys' fees) and
liabilities actually incurred and arising out of or related to
Buyer's breach or threatened breach of this Agreement or any act
or omission by any of Buyer and its agents, employees, successors
and assigns. (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. Buyer will not be entitled to an indemnity for
goodwill or other compensation upon termination of this Agreement
at any time for any reason.
d. ASSIGNMENT. Neither party may assign either this Agreement or any
of its rights, interests or obligations hereunder without the
prior written approval of the other, which approval will not be
unreasonably withheld or delayed; provided, however, that ADAP may
upon notice to, but not with the consent of Buyer assign this
Agreement to an affiliate, a successor in connection with a
merger, acquisition or consolidation, or to the purchaser in
connection with the sale of all or substantially all of ADAP's
assets or all or substantially all of ADAP's assets related to the
Product line. For purposes of this subsection, a change in
ownership or control of 50% or more of the voting control of Buyer
will be deemed an assignment of this Agreement by it.
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. PROPERTY. Without limiting the other provisions of this
Agreement, any ideas, concepts, inventions, know-how,
data-processing and other techniques, software or documentation
developed by Adaptive Broadband (alone or jointly with Buyer) in
connection with any Products or Services will be the exclusive
property of Adaptive Broadband.
h. 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).
i. GOVERNING LAW AND RELATED MATTERS. This Agreement and each
purchase order accepted by Adaptive Broadband will be governed by
and construed in accordance with the internal laws of the State
of California, USA, including the U.C.C. as adopted by that
State, but without reference to conflict of laws principles. The
United Nations Convention on the International Sale of Goods will
not apply to this Agreement. Any controversy or claim which
arises out of or relates to this Agreement will be triable only
in a court with jurisdiction located in Santa Xxxxx County,
California, and Adaptive Broadband and Buyer each irrevocably
consent to that venue and to the personal jurisdiction thereof.
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:
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If to Adaptive Broadband, to: If to Buyer, to:
Adaptive Broadband Corporation TELECOM WIRELESS CORP.
---------------------
0000 Xxxxxxxx Xxxxxx 0000 XXX Xxxx.
Xxxxxxxxx, XX 00000 Suite #1200
Attn: Xxxxxxxxx Xxxxx Xxxxxxxxx, XX 00000
Attn: General Council
Fax: (000) 000-0000 Fax: (000) 000-0000
WITH A COPY TO: WITH A COPY TO:
Adaptive Broadband Corporation _____________________________
0000 Xxxxxxxx Xxxxxx _____________________________
Xxxxxxxxx, XX 00000 _____________________________
Attn: General Counsel Attn:________________________
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.
IN WITNESS WHEREOF, Adaptive Broadband and Buyer each executed and deliver this
Agreement as of the date first written above.
BUYER: ADAPTIVE BROADBAND CORPORATION:
CO NAME: TELECOM WIRELESS CORPORATION
By: By:
-------------------------------- -------------------------------
Name: Xx. Xxxxx X. Xxxxxxx Name: Xxxxxxxxx X. Xxxxx
------------------------------ -----------------------------
Title: Chairman and CEO Title: Senior Vice President
----------------------------- ----------------------------
Date: Dec 22nd 1999 Date: Dec 22nd, 1999
------------------------------ -----------------------------
TABLE OF EXHIBITS
Exhibit A - Products and Related Pricing
Exhibit B - Professional Services & Training
Exhibit C - Adaptive Broadband's Standard Terms
and Conditions of Sale
Exhibit D - Year One Equipment Requirement
Exhibit E - UNII Trial Equipment
Page 5
EXHIBIT A
TO PURCHASE AGREEMENT
PRODUCTS AND RELATED PRICING
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
------------ -------------------- --------------- -----------
1/1/00 - 12/31/00 First 8,400 units $1437 $1920
------- ----- -----
Calendar year 2001 Additional 15.000 units $1437 $1920
-------- ----- -----
Calendar year 2002 Additional 30,000 units $1365 $1824
-------- ----- -----
Calendar year 2003 Additional 45,000 units $1317 $1760
----- -----
Calendar year 2004 Additional 75,000 units $1197 $1600
----- -----
*Buyer may purchase any combination of Product subscriber units ("SUs")
and access points ("APs") so long as it has ordered and taken delivery
of an aggregate of at least that number of total units listed under
"Quantity Commitment" from January 1st 2000 through the end of the
relevant Time Frame period (e.g., by December 31, 2001, ordered and
taken delivery of at least 23,400 units). To the extent Buyer submits
valid and irrevocable purchase orders in recognition of ADAP's delivery
lead times, Buyer will be deemed to have met its quantity obligation
and Buyer's only obligation with respect to such orders is to take
delivery by such dates.
(a) If Buyer fails to satisfy its unit purchase obligation by the end
of each Time Frame listed above, then with respect to its purchase
deficiency from the quantity commitment related to that Time
Frame, Buyer shall pay to Adaptive Broadband a nonrefundable
amount equal to 5% of the agreed upon subscriber unit purchase
price of those units (whether subscriber units or access points)
which it was obligated to but failed to purchase.
(b) Buyer shall pay to Adaptive Broadband a non-refundable amount
equal to 5% of the agreed upon purchase price of the respective
subscriber units which it was otherwise obligated to but failed to
purchase during the period beginning on the first day of the Time
Frame period in which the termination or cancellation occurs
through the stated expiration date of the Agreement, if.
(i) Buyer terminates or cancels the Agreement for any reason
prior to satisfying its unit Product purchase obligations
set forth above in this Exhibit A, and Adaptive Broadband
has not been in material breach of this agreement after
written notice of breach from Buyer and a thirty (30) day
opportunity to cure (excluding days of force majeure
affecting Adaptive Broadband's ability to perform), or
(ii) Adaptive Broadband terminates or cancels the Agreement for
any reason prior to Buyer satisfying its unit Product
purchase obligations set forth above in this Exhibit A, and
Buyer has been in material breach of this Agreement after
written notice of the breach from Adaptive Broadband and a
thirty (30) day opportunity to cure (excluding days of force
majeure affecting Buyer's ability to perform).
1
Buyer shall pay these obligations net 30 days after the end of the
applicable Time Frame period and net 30 days after that
cancellation or termination date, as appropriate; provided,
however, that any such penalty payment obligation is contingent
upon Adaptive Broadband maintaining, throughout substantially all
of the relevant time period, current Product technology which is
reasonably competitive in the fixed wireless broadband (25 to 100
megabit data rate per sector) market as measured on a bit-per-Hz
basis and dollars-per-bit basis or other reasonable competitive
analysis bases.
OTHER PRODUCTS:
Control Server Hardware $14,000 each
(Includes Control Server Software License)
Element Management System Software $50,000 (one time)
Activation Keys (Unlimited number of SU's)
ATM Switch As per attached pricing
sheet dated 11/24/99
Version 1.4.2
Element Management Server $7,600
Backhaul Transceivers (Master/Slave) As per Page (1) Exhibit "A"
For SU's and AP's
Cabling and Installation Manuals, Rack Tray for As per attached pricing
Server, Rack Tray with monitor, Keyboard and Mouse sheet dated 1 1/24/99
Control Server Software License, ATM WAN Access Version 1.4.2
Interfaces, ATM LAN Access Interfaces, ATM Switch
Video Networking Interface, Power Supply and UPS backups,
SU and AP Mounting Brackets.
2
EXHIBIT B
PROFESSIONAL SERVICES AND
TRAINING - RELATED PRICING
Per attached documents entitled "Adaptive Broadband Training," and
"Professional Services".
Page 7
ADAPTIVE BROADBAND
TRAINING
As of December 14, 1999
COURSE OFFERINGS AND SAMPLE SYLLABUS
NETWORKING TECHNOLOGY (ABA 100) 3 DAYS 12 SESSIONS INCLUDING LAB
COST PER STUDENT $995
Intended Audience: Engineers and technicians familiar with telephonic technology
who need a comprehensive view of networking technology
Description: This is a three day course covering
Length: 3 days
Text: Workbook provided.
Prerequisites: A general knowledge of electronics, wireless telephonics, and
computer basics Certificate Issued: Certificate of Completion Issued. Those who
wish to take more advanced AB Access courses must pass a final exam.
1. AB ACCESS SYSTEM (ABA 101) 2 DAYS 6 CLASS SESSIONS & 1 LAB SESSION COST PER
STUDENT $995
Intended Audience: Engineers and technicians with a need to be technically
familiar with the AB Access System
Description: This is a two day course covering the Base Station and the Remote
CPE Equipment. Topics covered include: theory of operation of both radios,
troubleshooting of AB-Access. systems in general and ADAP equipment in
particular, installation information, and detailed coverage of Adaptive
Broadband's Element Management System.
Length: 2 days
Text: Workbook provided.
Prerequisites: A general knowledge of electronics, wireless telephonics, and
computer basics
Certificate Issued: Certificate of Completion Issued. Those who wish to take
more advanced AB Access courses must pass a final exam.
2. AB ACCESS SYSTEM OPERATOR (ABA 121)
COST PER STUDENT $495
Intended Audience: AB Access System Operator candidates
Description: This course trains the AB Access Operator to recognize and issue
keyboard commands, to become familiar with AB Access System screens, and to
understand and interpret system messages
Length: 1 day
Text: Workbook provided.
Prerequisites: ABA 100 & ABA 101
Certificate Issued: AB Access System Operator Certification upon passing
3. AB ACCESS SYSTEM ADMINISTRATOR (ABA 131)
COST PER STUDENT $995
Intended Audience: AB Access System Administrator candidates
Description: This course trains the AB Access System Administrator to configure
AB Access network elements, to access AB Net Manager and to control access to AB
Net Manager.
Length: 2 days
Text: Workbook provided.
Prerequisite: AB Access Operator Certification
Certificate Issued: AB Access System Administrator Certification upon passing
4. AB ACCESS NETWORK ADMINISTRATOR (ABA 141)
COST PER STUDENT $995
Intended Audience: AB Access Network Administrator candidates
Description: This course trains the AB Access Network Administrator to (1)
upgrade network elements, (2) to control all access to AB Net Manager, (3) to
install and configure the AB Access network and network elements and (4) to
perform nonAB Access network functions.
Length: 2 days
Text: Workbook provided.
Prerequisite: AB Access System Administrator Certification
Certificate Issued: AB Access Network Administrator Certification on passing:
4.1 AB ACCESS SUBSCRIBER UNIT INSTALLATION (ABA 51)
COST PER STUDENT $495
4.1.1 Intended Audience: AB Access Subscriber Unit Installers
Description: This course trains the student to install and operate the AB Access
Subscriber Unit.
Prerequisites: A general knowledge of electronics, wireless telephonics, and
computer basics
Length: 1 day
Text: AB ACCESS SUBSCRIBER UNIT (SU) INSTALLATION AND OPERATIONS GUIDE
Certificate Issued: AB Access Subscriber Unit Installer Certification on passing
5. AB ACCESS BASS STATION INSTALLATION (ABA 61)
COST PER STUDENT $495
Intended Audience: AB Access Base Station Installers
Description: This course trains the student to install and operate the AB
Access
Base Station.
Prerequisites: A general knowledge of electronics, wireless telephonics, and
computer basics
Length: 1 day
Text: AB ACCESS BASE STATION SUBSYSTEM (BSS) INSTALLATION AND OPERATOR GUIDE
Certificate Issued: AB Access Base Station Installer Certification on passing
6. AB ACCESS SYSTEM: A NON-TECHNICAL GUIDE (ABA 21) 1 DAY 4 CLASS SESSIONS
INCLUDING LABS
COST PER STUDENT $495
Intended Audience: Administrators and others for whom a general knowledge of the
AB Access system would be useful, but who do not need an engineer's or
technician's level of detailed understanding
Description: Workbook provided
Prerequisites: None. A general knowledge of computers is recommended.
Length: 1 day
Certificate Issued: Certificate of Completion issued.
ABA 101: AB Access System Syllabus
Length 2 days 6 Class Sessions & an Afternoon Lab Session
DAY ONE
9:30 AM-10:20 AM INTRODUCTION TO WIRELESS BROADBAND
11:00 AM-11:50 AM AB ACCESS SYSTEM AND THE SU
I. Introduction to the AB Access System
A. Basic Operation Philosophy
B. System Applications
II. Theory of Operations
A. Specifications D. Transmitter
B. Features E. Antenna
C. Receiver F. Interfaces
III. Subscriber Unit
A. Subscriber Unit D. Power, Interface
B. Wall Box Considerations
C. Field Alignment E. Associated
Issues
IV. Field Troubleshooting
A. No RF Link D. Poor Data Performance
B. Weak RF Link E. Hands on Exercise
C. No Data Link
LUNCH BREAK
1:00 PM - 1:50 PM BASE STATION
I. Introduction:
A. Hot Standby Master Station Capabilities
B. Specifications
C. Features
II. Theory of Operation
A. Access Point C. Control Server
B. ATM Switch D. Element Management
Server
III. Installation
A. RF Planning
B. Network Planning
C. Physical Installation
D. Interfaces
E. Feedlines
F. Verification of System Operation
IV. Field Alignment/Troubleshooting
A. Test Equipment E. Poor Data Performance
B. No RF Link F. Weak RF Link
C. Weak RF Link G. Hands-on Exercise
D. No Data Link
2:30 PM - 3:20 PM ELEMENT MANAGEMENT SYSTEM
I. Introduction:
A. Basic Operational Philosophy
B. System Elements
C. Functionality
II. System Setup
A. Management Server Requirements
B. Checking for Connectivity
C. Software Installation
D. Interfaces to the WAN
E. Checking for Connectivity
DAY TWO
9:30 AM - 10:20 AM ELEMENT MANAGEMENT SYSTEM
III. Initialization and Configuration A. Setting Up & Configuring an
Access Point B. Setting Up & Configuring an ATM Switch C. Setting
Up & Configuring a Management Server D. Setting Up & Configuring a
Subscriber Unit
IV. System Maintenance
A. RF Frequencies D. Subscribers
B. PVCs E. IP Address
C. Sub-networks
V. Fault Reporting
A. Subscriber Unit Faults
B. Access Point Faults
C. ATM Switch Faults
D. Management Server Faults
E. Unknown Faults
F. Diagnosing Network Problems
G. Diagnosing RF Problems
11:00 AM-11:50 AM WIRELESS BROADBAND AND THE FUTURE
LUNCH BREAK
1:00 PM - 3:20 PM ELEMENT MANAGEMENT SYSTEM
Hands On Session
ADAPTIVE BROADBAND CORPORATION
PROFESSIONAL SERVICES
As of December 15, 1999
Capabilities and Services
ADAP'S COMPLETE RANGE OF TELECOMMUNICATIONS SERVICE CAPABILITIES ENABLES US TO
OFFER THE BROADEST SCOPE OF SERVICES POSSIBLE TO MEET THE VARIED AND SPECIFIC
NEEDS OF OUR CLIENTS. ADAP CAPABILITIES ARE PROVIDED THROUGH OUR OWN STAFF AND
AUGMENTED THROUGH THE USE OF THIRD-PARTY TELECOM SERVICE CONSULTANTS. THIS
ABILITY TO BUILD TEAMS OF ADAP EMPLOYEES AND TELECOM SERVICE CONSULTANTS,
PROVIDES THE CUSTOMER THE BENEFIT OF HAVE THE MOST KNOWLEDGEABLE ENGINEERS,
PROGRAM MANAGERS, TECHNOLOGISTS, AND PROJECT MANAGERS.
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1.1.1.1 INSTALLATION AND MAINTENANCE
Identifies with the customer's need for quality, flexibility, and rapid
response time to installation and maintenance requirements. ADAP's highly
motivated staff ensures that the customer is able to generate revenue as
quickly as possible by providing high quality, timely installation. By
providing operational maintenance and repair for the equipment, ADAP makes
sure that the customer's revenue stream keeps flowing. ADAP is available to
provide these services for all PCS and cellular air interface standards and
equipment manufacturers ADAP products.
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1.1.1.2 PROGRAM MANAGEMENT
ADAP customizes a solution for customers to maximize resources, coordinate
activities, and ensure quality. Our program management services are designed
to promote the most successful system launch for our clients:
- Sophisticated project management software tools
- Creating project implementation strategies
- Establishing project goals including project costs and
schedules
- Scheduling, tracking, and reporting project progress
- Monitoring budget and costs
- Assessing quality control
- Providing site bid procedures and packages
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RADIO FREQUENCY (RF) ENGINEERING
ADAP provides full service RF engineering. Through our own technical staff and
our staff of consultants, ADAP has provided RF engineering services to assist
customers in planning their network capacity and coverage. Our engineers using
various state-of-the-art design tools. We have also developed unique software
programs to enhance the efficiency of the following services offered by our
organization:
ANALYSIS AND DESIGN:
- Establish design assumptions. Collect design criteria for RF link
budget including coverage area, criteria, and quality, fade
margin, and traffic requirements
- Establish penetration and traffic projections for the service area
- Perform nominal RF system design
- Provide preliminary testing to verify coverage and propagation
characteristics
- Establish initial cell layout based on design criteria and
existing microwave facilities
- Perform microwave interference analysis
- Issue search areas to site acquisition personnel
- Work with site acquisition personnel 'in the process of selecting
the optimum site
- Perform microwave path design
- Determine optimum site parameters: ERP, channel plan, antenna
height and type
- Microcell modeling
- Propagation analysis and coverage design
- Site selection and approval
- Site surveys
- Frequency planning
- Interference control
- System parameter optimization
- Field measurement
- Drive testing
- Traffic analysis and growth planning
- Microwave interference analysis
SYSTEM OPTIMIZATION:
- Perform system field testing and parameter optimization
- Perform functional testing and optimization for implemented sites
- Test plan development
- System drive test and data analysis
- System parameter settings
- Interference control
NETWORK PERFORMANCE AND SYSTEM MAINTENANCE
- Traffic channel utilization forecast per sector
- Floating busy hour traffic per sector (Monday - Friday, weekend)
- Network footprint (RSSI)
- Network quality drive test (call quality and bit error)
- Frequency planning and neighbor list update
- Network parameter setting
- Antenna orientation and down-tilt request
- Network trouble shooting
- Competitive footprint data
- Current 10 worst performance list
- Daily statistical report, including historical data and trends,
weekly and monthly averages
- Investigate and resolve all RF-related problems
TECHNOLOGY AND SPECIAL PROJECTS:
- Proposal support
- Evaluation of existing and emerging technologies
- Acceptance test plans
- Coverage threshold and link budget evaluation
- Technical evaluation of radio equipment
-- Tower top amplifiers
-- Cell enhancers
-- Filters
-- Combiners and duplexers
-- Antenna systems
TRAINING:
- Propagation and technology courses
- Information systems application development and implementation
- Managing with information
- Quality management
--------------------------------------------------------------------------------
NETWORK ENGINEERING
- Perform ATM switch engineering
- Network Consulting Services
- Conduct switch translations and definitions
- Identify wireline public switch network connection considerations
BELOW IS ADAP'S PROFESSIONAL SERVICES PRICING SCHEDULE AS OF 9/1/1999:
--------------------------------------------------------------------------------
Service Type Employment Category Hourly Rate
Program Management: Program Manager $170
Project Manager $150
Project Coordinator $120
Training: Trainer $100
RF Engineering: Principal Engineer $180
Senior Engineer $150
Design Engineer $108
Associate Engineer $96
Installation & Maintenance: Cell-Site Technician $84
Switch Technician $102
Survey & Install Engineer $120
--------------------------------------------------------------------------------
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.
1. 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.
1. 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 120days 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 30 days after the relevant invoice date.
If ADAP agrees 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 Buver 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 1.5_% 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.
1. 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 all references to dates are
references to delivery F.O.B. shipping point (North American orders) /
EX-WORKS (Incoterms, 1990) ADAP's relevant shipping facility
(International orders). Any dates for delivery
Page 8
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, rigging, 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.
1. PATENTS. 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, 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 its 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. Buyer will defend, indemnify and hold ADAP harmless against any
loss, damages, costs, fees (including attorneys' fees) and expenses
awarded against or incurred by ADAP for alleged infringement of any
patents, copyrights, trademarks, or other intellectual property rights
of any person or entity which result from ADAP's use of or compliance
with Buyer's designs, specifications or instructions.
1. PRODUCT CHANGES. ADAP reserves the right, without prior approval from
or 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 pricing and 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.
1. 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, customs clearance and
other related charges. If ADAP determines that the product is
notdefective 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
Page 9
specifically authorizes such repairs or alterations in each
instance; or (iii) when 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 au thori zed 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.
1. 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-confoming products
will be limited to repair or replacement at ADAP's option, pursuant to
the provisions of the foregoing Warranty clause.
1. 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.
1. 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 ADAP's 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 or rescheduled product, said charges having been agreed
upon not as a penalty, but as a result of the diffculty 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.
1. 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.
1. SOFTWARE LICENSE AND SUB-LICENSE.
a. ADAP grants to Buyer the non-exciusive license to use the Software
(defined below) in connection with the Products, subject to the
terms and conditions set forth below. ADAP grants to buyer the
non-exclusive license to sub-license the Software to those of
Buyer's customers which utilize Products. 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
ADAP's (or its licensor's) interest in the Software as those set
out below.
b. "Software" means any program in machine readable code (howsoever
provided by ADAP to Buyer), and intended to be loaded into the
memory of a 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 ADAP or supplied
to Buyer by ADAP for use on or in connection with any of the
Products; however, Software shall not mean any source code.
c. The Products and Software include software which is licensed by
third parties to ADAP ("Third-Party Software"). Buyer agrees to
comply with all of the requirements and restrictions of all
licenses which apply to Third-Party Software, and Buyer authorizes
ADAP to execute and deliver all agreements and documents on
Buyer's behalf in order to comply with the foregoing obligations.
Page 10
d. Set out below are the terms and conditions of the software
license granted by ADAP 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: (i) 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. (ii) Neither the Software nor the documentation
may be copied in whole or in part, except for backup and
archival purposes. (iii) 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. (iv) Save for Buyer's right to grant
sub-licenses to its customers 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. (v) 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.
(vi) No warranty applies if failure of the Software has
resulted from misuse or misappropriation.
e. 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.
1. CONFIDENTIALITY.
a. Buyer and ADAP each agree to use the other's Confidential
Information (defined below) it receives or otherwise obtains
solely for purposes of benefiting the business relationship
between them. The receiving party ("Recipient") shall not
duplicate any Confidential Information of the other party
("Disclosing Party") except as may be strictly necessary in
furtherance of that purpose. The Recipient agrees to maintain
all of the Disclosing Party's Confidential Information it
receives or otherwise obtains in confidence, using at least
that standard of care which it accords its own Confidential
Information to protect the Disclosing Party's Confidential
Information. The Recipient agrees not to disclose the
Disclosing Party's Confidential Information to any other party
except those of the Recipient's directors. officers,
employees, agents, consultants, advisors and affiliates
(collectively, "Agents") involved in furthering that purpose
whose duties justify the need to know such Confidential
Information. The Recipient's Agents who are to receive
Confidential Information shall be advised of the confidential
nature of the Confidential Information and shall have agreed
in writing to be bound by the terms of this Section. The
Recipient agrees that at no time shall it or its Agents use or
knowingly permit any other person or entity to examine, use,
or derive benefit from the Confidential Information. These
obligations will survive for a period of ten years from the
date of the relevant disclosure or for such longer period as
such Confidential Information may be entitled to legal
protection from disclosure by operation of law.
b. "Confidential Information" means information in its broadest
sense, including but not limited to computer programs,
databases, trade secrets, know-how, inventions, improvements,
discoveries, techniques. business and marketing records,
merchandising and marketing techniques, plans and data,
strategies, new products, financial data. budgets,
projections, work papers, files, contracts, and client and
supplier information and lists; provided, however, that this
Section 13 shall not apply to Confidential Information which
(i) is or becomes generally available to the public other than
as a result of disclosure by or through the Recipient or its
Agents; (ii) was available to the Recipient on a
non-confidential basis prior to disclosure by the Disclosing
Party as evidenced by documentation in the Recipient's
possession (unless the Recipient knows that such Confidential
Information is subject to another confidentiality agreement);
(iii) becomes available to the receiving party on a
non-confidential basis from a source other than the Disclosing
Party (unless the Recipient knows that such Confidential
Information is subject to another confidentiality agreement);
or (iv) was developed by or for the Recipient independently of
and without reference to any of the Disclosing Party's
Confidential Information. Any Confidential Information
developed by ADAP (alone or jointly with Buyer) in connection
with any Products or services provided by ADAP will be the
exclusive property of ADAP.
c. Upon the Disclosing Party's request, the Recipient shall
immediately (i) return all Confidential Information it has
received, including tangible items containing or representing
Confidential Information and all copies thereof made by such party
or its Agents; (ii) erase or destroy all Confidential Information
it has received which is contained in computer memory or data
storage apparatus; and (iii) destroy all materials incorporating
or based on such Confidential Information which were prepared by
or for such party or its Agents.
d. Notwithstanding the foregoing, either party may disclose any
Confidential Information to the extent required by a valid
subpoena or order issued by a court of competent jurisdiction
or by a governmental body, provided that the party subject to
such requirements shall (i) immediately notify the Disclosing
Party of the existence, terms and circumstances relating to
the requirement, if permitted by law; and (ii) cooperate with
the Disclosing Party in asserting objections or providing a
defense to such requirement or obtaining a protective or
equivalent order. Buyer and ADAP agree that the obligations
under this Section 13 are of great importance to ADAP and form
a substantive condition of any transaction by it. Since
monetary compensation may not adequately cover the failure of
such obligations, Buyer and ADAP specifically agrees to submit
to injunctive relief from the courts where suitable and
adequate relief may be obtained in order to give effect to
these confidentiality obligations.
1. 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
Page 11
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.
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 FOR (I) REPROCUREMENT
COSTS; (II) INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL
DAMAGES; (III) ANY DAMAGES WHATSOEVER RESULTING FROM LOSS OF USE,
DATA OR PROFITS ARISING OUTOF 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 ADAP 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.
1. GENERAL PROVISIONS.
a. These terms and conditions together with the Purchase Agreement to
which it is attached together constitute the entire agreement
between the parties with respect to the subject matter hereof and
thereof and supersede all proposals, oral and written, all
previous negotiations and all other communications between the
parties with respect to that subject matter. These terms and
conditions will prevail and govern notwithstanding any different,
conflicting or additional terms and conditions which may appear on
any order or other document submitted by Buyer, all of which will
be deemed null and void. Deviations from these terms and
conditions are not valid unless confirmed in writing by an
authorized representative of ADAP.
b. 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.
c. These terms and conditions will be governed by and construed in
accordance with the internal laws of the State of California
without reference to conflict of laws principles and not including
the United Nations Convention on Contracts for the International
Sale of Goods. Any controversy or claim arising out of or relating
to these terms and conditions or any matter or transaction
contemplated hereby will be triable only in a court with
jurisdiction located in Santa Xxxxx County, California, and ADAP
and Buyer each irrevocably consent to that venue and to the
personal jurisdiction thereof.
d. 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.
e. 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.
f. 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.
g. 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.
Page 12
Exhibit "D" To Purchase Agreement - Year One Equip.
FROM
---------------------------------
Adaptive Broadband Corporation
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx
TO ADDRESS CORRESPONDENCE TO
--------------------------------- -----------------------------------
Telecom Wireless Corporation Adaptive Broadband Corporation
0000 XXX Xxxx 00000 Xxxxxxx Xxxx #000
Xxxxx 0000 Xxxxxx Xxxxxx, XX 00000
Xxxxxxxxx, XX 00000 Attention: Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxx
Tel: Telephone (000) 000-0000
Quote date: 20-Dec-99 Fax: Fax (000) 000-0000
------------- email xxxxxxxxx0@xxxxxxxxxxxxxxxxx.xxx
This quotation number must appear
on all quotations and related
correspondence.
--------------------------------------------
QUOTATION NUMBER ADAP 122099-DR
--------------------------------------------
Delivery required by: Terms: Per Agreement Date of earliest
shipment: March 2000
Reply required by: F.O.B.: Sunnyvale, CA Ship via: Surface
------------------------------------------------------------------------------------------------------------
Item Quantity Description Unit Price Amount
------------------------------------------------------------------------------------------------------------
SU-F051B 8,280 Single UNII Band Subscriber Transceiver, Supports 1,437.00 11,898,360.00
Both ATM and Ethernet Autosensing, Encryption
APT051B 120 Single UNII Band Access Point Transceiver, Supports 1,920.00 230,400.00
Both ATM and Ethernet Autosensing, Encryption
CA-030 8,400 CAT-5 Cable with RJ-45 Interface to transceiver 75.00 630,000.00
MASU-01 1 Subscriber Unit Install Manual 50.00 50.00
MA-BS-01 1 Base Station Installation Manual 50.00 50.00
MA-NM01 1 Network Management Manual 100.00 100.00
BS-CS-01 20 Control Server (Cell 4350) w/Control Server License 14,000.00 280,000.00
RKMN-01 20 Rack Tray with Monitor, Keyboard and Mouse 3,000.00 60,000.00
NMSE-01 1 Element Management System, Tower Config. 7,600.00 7,600.00
NM-K05 1 EMS S/W Activation Keys (Unlimited License) 50,000.00 50,000.00
BR-01 8,400 Tilt Brackets - Azimuth and Elevation List 16.00 134,400.00
Wall Box 8,400 AB-Access Wall Box 40.00 336,000.00
---------------
Total $13,635,375.00
===============
-------------
Item Q1 Q2 Q3 Q4
-------------
SU-F051B 2,070 2,070 2,070 2,070
APT051B 30 30 30 30
CA-030 2,100 2,100 2,100 2,100
MASU-01 1
MA-BS-01 1
MA-NM01 1
BS-CS-01 5 5 5 5
XXXX-00 0 0 0 0
XXXX-00 0
XX-X00 0
BR-01 2,100 2,100 2,100 2,100
Wall Box 2,100 2,100 2,100 2,100
3,450,090 3,392,290 3,392,290 3,392,290
Remarks:
TWC will provide own ATM Switches, complete with (7) ATM-23 or 10BaseT
Interfaces, necessary routers or hubs that will install behind remote SU's, and
PC Workstations, and all necessary cabling.
Pricing does not include shipping nor installation.
Exhibit "E" To Purchase Agreement - UNII Trial Equip.
FROM
---------------------------------
Adaptive Broadband Corporation
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx
TO ADDRESS CORRESPONDENCE TO
--------------------------------- -----------------------------------
Telecom Wireless Corporation Adaptive Broadband Corporation
0000 XXX Xxxx 00000 Xxxxxxx Xxxx #000
Xxxxx 0000 Xxxxxx Xxxxxx, XX 00000
Xxxxxxxxx, XX 00000 Attention: Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxx
Tel: Telephone (000) 000-0000
Quote date: 20-Dec-99 Fax: Fax (000) 000-0000
------------- email xxxxxxxxx0@xxxxxxxxxxxxxxxxx.xxx
This quotation number must appear
on all quotations and related
correspondence.
--------------------------------------------
QUOTATION NUMBER ADAP 122199-DR
--------------------------------------------
Delivery required by: Terms: Per Agreement Date of earliest
shipment: January 2000
Reply required by: F.O.B.: Sunnyvale, CA Ship via: Surface
------------------------------------------------------------------------------------------------------------
Item Quantity Description Unit Price Amount
------------------------------------------------------------------------------------------------------------
SU-F051B 3 Single UNII Band Subscriber Transceiver, Supports 1,437.00 4,311.00
Both ATM and Ethernet Autosensing, Encryption
APT051B 6 Single UNII Band Access Point Transceiver, Supports 1,920.00 11,520.00
Both ATM and Ethernet Autosensing, Encryption
CA-030 9 CAT-5 Cable with RJ-45 Interface to transceiver 75.00 675.00
MASU-01 1 Subscriber Unit Install Manual 50.00 50.00
MA-BS-01 1 Base Station Installation Manual 50.00 50.00
MA-NM01 1 Network Management Manual 100.00 100.00
BS-CS-01 1 Control Server (Cell 4350) w/Control Server License 14,000.00 14,000.00
RKMN-01 1 Rack Tray with Monitor, Keyboard and Mouse 3,000.00 3,000.00
NMSE-01 1 Element Management System, Tower Config. 7,600.00 7,600.00
NM-K01 1 EMS S/W Activation Keys (100 SU's) 2,500.00 2,500.00
BR-01 9 Tilt Brackets - Azimuth and Elevation List 16.00 144.00
Wall Box 9 AB-Access Wall Box 40.00 360.00
---------------
Total $44,310.00
===============
Remarks:
TWC will provide own ATM Switches, complete with (7) ATM-25 or 10BaseT
Interfaces, necessary routers or hubs that will install behind remote SU's, and
PC Workstations, and all necessary cabling.
Pricing does not include shipping nor installation.
AB-Access Price List v1.4.2
