EXHIBIT 10.19
GENERAL PURCHASING AGREEMENT
BETWEEN CELLCO PARTNERSHIP
AND
METAWAVE COMMUNICATIONS CORPORATION
[***] CERTAIN INFORMATION ON THIS PAGE(S) HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
TABLE OF CONTENTS
ARTICLE I
TERMS AND CONDITIONS APPLICABLE TO
THE ENTIRE AGREEMENT
SECTION TITLE PAGE
------- ----- ----
PREAMBLE 9
1. DEFINITIONS 9
2. TERM OF AGREEMENT 10
3. ORDERS 10
4. TERMINATION OF ORDERS 10
5. PRICING AND DELIVERY 11
6. INVOICES AND PAYMENT 11
7. PRICE PROTECTION 12
8. MOST FAVORED CUSTOMER 13
9. AUDIT 13
10. TERMINATION 13
11. TRAINING 14
12. MANUALS AND DOCUMENTATION 14
13. WARRANTIES 15
14. BENCHMARK TESTING, PRODUCT & SOFTWARE TRIAL 16
15. FORCE MAJEURE 16
16. TAXES 17
17. NOTICE 18
18. INDEPENDENT CONTRACTORS 18
19. INDEMNIFICATION 18
20. INFRINGEMENT 19
21. USE & PROTECTION OF INFORMATION 20
22. METAWAVE'S INFORMATION 21
23. AVAILABILITY 21
24. LICENSES 21
25. ASSIGNMENT 21
26. SUBCONTRACTING 22
27. PUBLICITY AND ADVERTISING 22
28. CHOICE OF LAW 22
29. WAIVER AND ESTOPPEL 22
30. SEVERABILITY 22
31. HEADINGS 23
32. INSURANCE 23
33. RELEASES VOID 24
2
ARTICLE I - cont.
TERMS AND CONDITIONS APPLICABLE TO
THE ENTIRE AGREEMENT
SECTION TITLE PAGE
------- ----- ----
34. OCCUPATIONAL SAFETY & HEALTH ACT (OSHA) 24
35. NON-DISCRIMINATION COMPLIANCE 24
36. SUCCESSORS & ASSIGNS 24
37. BAM'S PROPERTY 24
38. LAWS, RULES & REGULATIONS 24
39. ATTORNEYS FEES & COSTS 25
40. COUNTERPARTS 25
3
ARTICLE II
EQUIPMENT ACQUISITION
SECTION TITLE PAGE
------- ----- ----
1. SCOPE 26
2. FORM OF ORDER 26
3. SITE PREPARATION 26
4. TRANSPORTATION 27
5. TITLE AND RISK OF LOSS 27
6. INSTALLATION AND COMMISSIONING 27
7. SELF INSTALLATION 28
8. INSTALLATION, ASSISTANCE & TECHNICAL SUPPORT 28
9. STANDARD OF PERFORMANCE FOR ACCEPTANCE 29
10. CABLES AND RELATED ITEMS 29
11. ENGINEERING CHANGES 29
12. TRADE - IN 29
13. RELOCATION OF EQUIPMENT 29
14. SUPPLIES AND/OR REPLACEMENT PARTS 30
15. CONVERSION OF FINANCIAL ARRANGEMENT 30
16. TRANSFER OF TITLE TO A THIRD PARTY 30
17. NEW EQUIPMENT 30
18. REMOVAL OF EQUIPMENT 30
4
ARTICLE III
TERMS AND CONDITIONS APPLICABLE TO THE
METAWAVE'S HARDWARE MAINTENANCE PROGRAM
SECTION TITLE PAGE
------- ----- ----
1. SCOPE 31
2. FORM OF ORDER 31
3. AVAILABILITY OF MAINTENANCE AND SPARE PARTS 32
4. METAWAVE'S RESPONSIBILITIES FOR TYPE 1 EMERGENCY 33
5. METAWAVE'S RESPONSIBILITIES FOR TYPE 2 EMERGENCY 33
6. BAM'S RESPONSIBILITIES 33
7. ON -SITE MAINTENANCE 34
8. NOTIFICATION AND RESPONSE 34
9. MAINTENANCE TERM AND MAINTENANCE CHARGES 34
10. ENGINEERING COMPLAINTS 35
11. ENGINEERING CHANGES 35
12. EQUIPMENT NONPERFORMANCE CREDIT 35
13. REMEDIES FOR EQUIPMENT FOR FAILURE TO MEET 36
OPERATION XXXXX
00. XXXXXXXX 00
00. ESCALATION GUIDELINES 36
16. PROCEDURES FOR METAWAVE'S HMP 36
5
ARTICLE IV
TERMS AND CONDITIONS APPLICABLE TO ANY PURCHASE THAT
INCLUDES LICENSED SOFTWARE AND/OR MAINTENANCE SERVICE
SECTION TITLE PAGE
------- ----- ----
1. SCOPE 39
2. DEFINITIONS 39
3. FORM OF ORDER 39
4. LICENSE 40
5. LICENSE TERM 41
6. LICENSE FEE 41
7. SOFTWARE DELIVERY 41
8. RISK OF LOSS 42
9. INSTALLATION 42
10. STANDARD OF PERFORMANCE FOR ACCEPTANCE 42
11. NEW RELEASES 42
12. SOFTWARE MAINTENANCE 43
13. SOFTWARE MAINTENANCE CHARGE 44
14. TERMINATION OF MAINTENANCE 45
15. OBJECT CODE AND TECHNICAL DOCUMENTATION 45
16. RELOCATION OF SOFTWARE 45
17. ENHANCEMENT OF SERVICES 45
18. SOFTWARE EVALUATION 46
19. SOFTWARE VIRUS PROTECTION 46
6
ARTICLE V
ENTIRE AGREEMENT
SECTION TITLE PAGE
------- ----- ----
1. ENTIRE AGREEMENT 61
2. SIGNATURES 61
SCHEDULE A PRODUCT AND RELATED SERVICES - DESCRIPTION AND PRICE LIST
SCHEDULE B MUTUAL NONDISCLOSURE AGREEMENT
SCHEDULE C NONDISCRIMINATION COMPLIANCE UNDERTAKING
EXHIBIT 1 COMMISSIONING CERTIFICATE
7
ARTICLE I
TERMS AND CONDITIONS APPLICABLE TO
THE ENTIRE AGREEMENT
THIS GENERAL PURCHASE AGREEMENT is between Cellco Partnership, a
Delaware Limited Partnership, doing business as Xxxx Atlantic Mobile,
(hereinafter called "BAM") having an office and place of business at 000
Xxxxxxxxxx Xxxxxx Xxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000, on behalf of itself and
its Affiliates and Metawave Communications Corporation, a Delaware Corporation,
having its principal office and place of business at 00000 Xxxxxxx Xxxx XX,
Xxxxxxx, Xxxxxxxxxx 00000 (hereinafter called "Metawave").
WHEREAS, BAM may place Orders for the purchase of Product, Software
and/or Related Services from Metawave; and
WHEREAS, BAM and Metawave each desire that the terms and conditions
controlling all such purchases be consistent, uniform, and agreed to by both
parties in advance of the placement of any such Orders; and
WHEREAS, this Agreement is intended to establish consistent and
uniform terms and conditions for all purchases that BAM may make from Metawave;
NOW, THEREFORE, in consideration of the mutual promises, covenants,
and conditions herein contained, BAM and Metawave agree as follows:
1. DEFINITIONS
1.1 "Affiliate" refers to any parent, U.S. subsidiary or successor of
BAM, or any partnership, corporation or other entity operating in the U.S. in
which BAM, or a parent, subsidiary or successor of BAM, directly or indirectly,
owns at least fifty percent (50%) equity interest, or has at least fifty percent
(50%) voting control.
1.2 "Agreement" refers to this General Purchase Agreement.
1.3 "Commissioning" refers to the procedures described in Metawave's
Product system manual to place the Equipment into commercial service at a
particular site which is documented by BAM's signature on the Commissioning
Certificate attached hereto as Exhibit 1.
1.4 "Equipment" refers to goods, including software necessary for the
operation of the equipment, available from Metawave hereunder.
1.5 "Order" refers to a written order from BAM for the purchase,
lease or license from Metawave of a Product and/or Related Services.
1.6 "Outstanding Order" refers to an Order for which
title/lease/license to the Product and/or license to Software described therein
has not passed to BAM or for which any Related Services described therein have
not been accepted.
1.7 "Party" refers to either BAM or Metawave, as the context
requires; both BAM and Metawave may be collectively referred to as the
"Parties."
1.8 "Product" refers to the Equipment and Software described on
Schedule A hereto.
1.9 "Related Services" means those services such as installation,
technical support, development, maintenance, and training, which Metawave will
provide to BAM hereunder. Those Related Services which will be provided by
Metawave, and the charges therefore, if any, are set forth on Schedule A.
1.10 "Software" refers to software purchased by or provided to BAM
including (i) computer programs embedded in the Equipment or Product which
control and monitor the operation of the Equipment ("Embedded System Software"),
as described in Schedule A; and (ii) the PC-based graphical user interface
computer program for the Equipment, and all Features, Major Releases, Point
Releases, Software Patches (as defined in Article IV), and other updates and
modifications to such Software and any documentation in support thereof.
1.11 "Subcontractor" means any person who or entity which enters into
a contract with Metawave but with whom BAM has no contractual relationship, and
all employees, agents and representatives of that person or entity.
1.12 "Worcester Equipment" refers to Product tested by BAM pursuant
to the Test Agreement with Metawave dated December 29, 1998 attached hereto as
Exhibit 2.
2. TERM OF AGREEMENT
This Agreement shall be effective on ________, 1999 (the "Effective
Date"). Unless terminated in accordance with Section 10 of this Article
(Termination), this Agreement shall continue in effect for [***] from the
Effective Date ( the "Term"), and will be automatically renewed for subsequent
one-year terms at each annual anniversary of the "Effective Date" (a "Renewal
Term").
3. ORDERS
3.1 All Orders made by BAM from Metawave shall be in the form of a
BAM purchase order document that contains the items in the Section "Form of
Order" located in each Article of this Agreement. Each Order shall reference
and be deemed to incorporate the specifications applicable to the Product or
Related Services being ordered and any special terms, in addition to those set
forth in this Agreement made in writing by Metawave in BAM and accepted by BAM.
3.2 If notice of rejection of an Order is not received by BAM within
[***] days from the date of the Order, such Order shall be deemed to have been
accepted by Metawave.
3.3 Whenever the provisions of an Order conflict with the provisions
of this Agreement, the provisions of the Order which are not preprinted as part
of a form shall control. Printed provisions on the reverse side of BAM's Orders
and all provisions on Metawave's forms whether in Metawave's notice of
acceptance, catalogue, invoice, confirmation, or otherwise, shall be deemed
deleted and of no force or effect. An Order may be modified only by a written
instrument signed by BAM and Metawave.
3.4 It is expressly understood and agreed that this Agreement is
intended solely to establish uniform and consistent terms and conditions for any
Orders BAM may choose to place with Metawave on behalf of itself and its
Affiliates, that BAM is not obligated to place any Orders with Metawave and that
this Agreement does
-9-
not grant Metawave an exclusive privilege to sell to BAM any or all Products,
Software and/or Related Services which BAM may require by contract with other
manufacturers and suppliers for the procurement of comparable products, software
and/or services. By incorporating the terms and conditions of this Agreement,
any Affiliate may order Products from Metawave by issuance of a Purchase Order.
BAM shall not be liable for purchases made directly by Affiliates. Affiliates
shall be solely liable for compliance with this Agreement. Metawave shall have
the right to refuse to do business with and reject Purchase Orders from
Affiliates for valid business reasons.
3.5 BAM assumes no liability for Product produced, processed or
shipped in excess of the amount specified in the Order placed with Metawave.
3.6 If following the completion of the site survey, Metawave
reasonably determines that Equipment configuration or the Related Services set
forth in the Order must be changed, Metawave shall notify BAM with a written
proposal for changes to the purchase Order. Upon receipt, BAM shall have [***]
business days to accept or reject the written proposal for changes. If accepted,
BAM shall execute a written change Order to reflect the required changes
identified by the site survey. If BAM rejects the written proposal for changes,
BAM may terminate the purchase Order subject to Section 4 of Article I.
3.7 The terms and conditions of this Agreement also apply to the
Worcester Equipment upon completion of testing. The Test Agreement shall
terminate upon completion of testing and this Agreement shall supersede and
replace the Test Agreement, including the Survival provisions of section 27 of
the Test Agreement.
4. TERMINATION OF ORDERS
BAM, prior to delivery, may terminate any Order, or portion thereof.
In the event BAM terminates an Order or portion thereof, the following table
will determine termination charges for undelivered Product. No termination
charge shall apply to Software not delivered or Related Services not performed.
Time of Cancellation Prior to | Maximum Termination Charge
Requested Delivery Date | (% of Price)
[***] [***]
[***] [***]
[***] [***]
Before Metawave applies these cancellation charges it will take into
consideration Metawave's ability to recommit such Product toward the fulfillment
of order(s) from other customers; and Metawave agrees to use every reasonable
effort to recommit such equipment.
5. PRICING AND DELIVERY
5.1 Upon placement by BAM of an Order, Metawave agrees to sell to BAM
those Products and/or Software specified on the Order for the applicable price
-10-
set forth on Schedule A. The price in Schedule A is exclusive of such taxes as
may be applicable pursuant to Section 16 of Article 1 (Taxes).
5.2 Metawave shall arrange for the delivery, and, if applicable,
installation of the Product or Provision of the Related Services on the date(s)
specified in the Order. Time is of the essence as to all dates for provision,
delivery and installation, unless mutually agreed to by both Parties.
6. INVOICES AND PAYMENT
6.1 Invoices shall be sent to the billing address noted on the Order
and shall contain a detailed list of charges which shall include, where
applicable, type, description, and serial number of Equipment, Software,
description of Related Services, basic charge for the Equipment, Software, or
Related Service, and other applicable charges. Any taxes, transportation costs
or other associated costs billable hereunder are to be stated separately.
Applicable sales/use taxes shall be paid to the state in which taxable items are
delivered, based on final destination as noted in the Order for each item. If
Order requires shipment to multiple states, than each item invoiced must
indicate final shipping destination. Metawave shall attach to the invoices a
copy of bills of lading and shipping notice showing through routing and weight.
Each invoice shall be paid within thirty (30) days of receipt unless it is
disputed by BAM.
For all Orders, Metawave shall render invoices as follows: for
Equipment to be installed by Metawave, [***] for Equipment to be installed by
BAM, [***] and for Related Services, [***] unless otherwise agreed to by both
Parties.
6.2 The following detailed information is required on each invoice in
order to assure prompt remittance:
(1) BAM's Order number
(2) Metawave's invoice number.
(3) Quantity and price of each item shipped.
(4) Applicable sales/use tax:
i) the value of the taxable Product/Related Service by
individual taxing jurisdiction;
ii) the sales/use tax for each such Product/Related
Service by individual taxing jurisdiction;
iii) the value of nontaxable Product/Related Services; and
iv) Metawave's sales/use tax registration number for each
applicable taxing jurisdiction.
(5) Other charges (if applicable).
-11-
(6) Final total cost.
(7) Contract number.
6.3 Charges payable by BAM will apply and shall be calculated from
the date of acceptance for Equipment or Software and the commencement date for a
Service. For any period of less than a calendar month, the charges shall be
prorated on the basis of a thirty (30) day month.
7. PRICE PROTECTION
Metawave shall not increase the prices for any Equipment, Software
and/or Related Services set forth on Schedule A during the Term. During a
Renewal Term, if any, Metawave may increase the price of Product, Software
and/or Related Service not more than [***] in any annual Renewal Term effective
upon sixty (60) days prior written notice and such increased price shall apply
only to Orders placed after the effective date of such price increase.
8. [***]
For the Term and each Renewal Term of this Agreement, Metawave shall
treat BAM [***] Metawave represents that all of the [***] by Metawave hereunder
are [***]. If during the Term or any Renewal Term of this Agreement Metawave
[***] then:
(1) Metawave shall, within thirty (30) calendar days after the
effective date of such [***]
(2) This Agreement and all applicable Orders shall [***]; and
(3) [***]
Metawave's compliance with this paragraph shall be subject, at BAM's option, to
independent verification in accordance with Section 9 of this Article (Audit).
9. AUDIT
Metawave shall prepare and maintain complete, legible, and accurate
records relating to this Agreement during the Term and maintain such for two (2)
years from the date of termination. BAM shall have the right, through its
designated representatives, to examine and audit, at all reasonable times, all
such records and such other records and accounts as may, under recognized
accounting practices, contain information bearing upon this Agreement.
-12-
10. TERMINATION
This Agreement may be terminated, by written notice only, as follows:
a. By either Party, at least [***] with such termination being
effective as of the end of the Term or Renewal Term. BAM shall have the right to
place Purchase Orders up until the effective date of the termination, and
termination of this Agreement pursuant to this subsection (a) shall not affect
any Outstanding Purchase Order as of the effective date of the termination.
b. By either Party, in the Event of Default or breach of this
Agreement and/or Order by either Party, when the breach or Default has not been
cured after thirty (30) day written notice by the non-breaching Party. Any of
the following shall be considered an "Event of Default":
i) Either Party is judged bankrupt or insolvent; or
ii) Either Party makes a general assignment for the
benefit of its creditors; or
iii) A trustee or receiver is appointed for either
Party or for any of its property; or
iv) Any petition by or on behalf of either Party is
filed to take advantage of any debtor's act or to
reorganize under the bankruptcy or similar laws;
or
v) Either Party disregards laws, ordinances, rules,
regulations or orders of any public authority.
In the event of termination pursuant to this subsection (b), BAM shall have the
right, at its option, to confirm in whole or in part any Outstanding Order, in
which case Metawave shall be obligated to fulfill the Order to the extent it is
confirmed, or to cancel, in whole or in part, any outstanding Order without any
liability to BAM. The foregoing right is in addition to, and not in limitation
of, any other remedy BAM may have at law or equity.
11. TRAINING
11.1 Metawave shall, at Metawave's published rates, provide
sufficient training, training materials and technical support to BAM to enable
BAM to properly and effectively use the Product. Such training shall be
conducted at a site selected by BAM, or at Metawave's offices located in
Redmond, Washington, and on dates that are mutually agreed to.
11.2 Metawave shall provide a training class on site in each BAM MSA
where Equipment is installed. Additionally, Metawave shall provide a Refresher
course annually at a site selected by BAM. The content of each course shall
include, but not be limited to site preparation, installation, remedial
maintenance, failure recovery/backup, failure repair techniques, test equipment,
diagnostic software use, and full documentation requirements, and may be changed
by Metawave when, in its judgment, such change is warranted. Metawave shall
provide sufficient personnel to conduct said course and shall furnish, at no
additional cost, instructional aids appropriate for each course, including
books, pamphlets and diagrams.
-13-
11.3 BAM may reproduce any training materials originated by Metawave
for the purpose of training BAM personnel. Any such reproductions shall include
any copyright or similar proprietary notices contained in the items being
reproduced.
12. MANUALS AND DOCUMENTATION
12.1 Metawave shall provide, on or before the installation date for
Product and at no additional charge, an updated CD Rom covering the
installation, maintenance and operation of the Equipment and Software for every
Spotlight ordered. Metawave shall provide all future updates of such CD Rom at
Metawave's then published rates.
12.2 BAM may reproduce any manuals for the purpose of installing,
maintaining and operating the Equipment and Software. Any such reproductions
shall include copyright or similar proprietary notices contained in the items
being reproduced. BAM may purchase additional sets of manuals at Metawave's
published rates.
13. WARRANTIES
13.1 Metawave at no cost to BAM, warrants to BAM that the Equipment
and Software furnished will be free from defects in design (except to the extent
designed by BAM), material and workmanship and will conform to and perform in
accordance with the specifications and documentation. Metawave also warrants to
BAM that Services will be performed in a fully workmanlike manner to BAM's
reasonable satisfaction. In addition, if Equipment or Software furnished
contains one or more manufacturers' warranties, Metawave hereby assigns such
warranties to BAM. All warranties shall survive inspection, acceptance and
payment. Equipment or Software not meeting the warranties will, at BAM's option,
be repaired, adjusted or replaced by at no cost to BAM.
13.2 Except as otherwise stated herein, the warranty period for
purchased Equipment (other than Linear Power Amplifiers (LPA)), Software or
Related Services will be in effect for [***] months after the date of
acceptance or execution of the Commissioning Certificate, where applicable. LPAs
will be warranted by Third Party Suppliers or Metawave as detailed in Schedule
D. However, such warranty period shall be extended by a period equal to the time
during which such Equipment or Software or LPA is not operational as a result of
such Equipment or Software or LPA not meeting its warranties. The warranty
period for replacement Product shall be the remaining warranty period of the
replaced Product or ninety (90) days, whichever is greater.
13.3 If any breach of warranty occurs with respect to Equipment or
Software and if such breach has not been corrected within a reasonable time (not
to exceed thirty (30) days from BAM notice to Metawave of the breach) or if two
(2) or more such breaches of warranty occur within any thirty (30) day period,
BAM may cancel any Outstanding Orders covering such defective Equipment or
Software and any other Outstanding Orders for Equipment or Software affected by
such breach. In the event a breach occurs during the warranty period on accepted
Equipment or Software, and Metawave is unable to correct such breach through the
procedures set forth in Articles III and IV within [***] days from BAM
-14-
notice to Metawave of the breach, Metawave shall promptly remove such defective
portion of Equipment or Software and refund to BAM all monies previously paid to
Metawave for such defective portion of Equipment or Software affected by the
uncorrected breach.
13.4 Metawave warrants that BAM shall acquire good and clear title to
any Product purchased hereunder, free and clear of all liens and encumbrances
and with respect to Software which is licensed, Metawave warrants BAM shall
acquire all rights and interests to use such Software.
13.5 Metawave represents and warrants to BAM that at the time of
delivery, all Products and Software delivered hereunder shall be "CALEA
Compliant," meaning that they shall not adversely affect BAM's ability to comply
with the provisions of Pub L. 103-414, Title 1, October 25, 1994, 108 Stat 4279
as it may be amended from time to time as well as any regulations or industry
standards implementing the provisions of the law.
13.6 Repair or replacement of Equipment under warranty, shall be
performed by Metawave within a period not to exceed [***] business days, from
the date Metawave receives the defective Equipment from BAM. Repair or
replacement of Equipment outside the warranty period, shall be performed by
Metawave within a period not to exceed [***] business days from the date
Metawave receives the defective Equipment from BAM.
13.7 In the event that the quantity of Equipment returned for repair
or replacement is greater than thirty (30) units at any one time, Metawave and
BAM shall agree upon a repair schedule.
13.8 This warranty does not apply to any claim which arises out of
any of the following: (i) the Equipment has been subject to unreasonable misuse,
neglect, damage by BAM or a third party; (ii) only in the event the installation
was provided by someone other than Metawave and the Equipment has not been
installed or optimized according to Metawave's guidelines, or parts have been
used in the Equipment which caused damage to the Equipment; (iii) the Equipment
is not maintained pursuant to Metawave's Maintenance Procedures only in the
event the maintenance was provided by someone other than Metawave; (iv) in the
event of Force Majeure has occurred; and (v) the Equipment is non-performing as
a result of the failure of third party equipment or services including but not
limited to antennas, antenna lines or interconnection facilities not provided by
Metawave at the site.
13.9 THE WARRANTIES IN THIS AGREEMENT ARE GIVEN IN LIEU OF ALL OTHER
WARRANTIES EXPRESS OR IMPLIED WHICH ARE SPECIFICALLY EXCLUDED, INCLUDING,
WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTIBILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
14. BENCHMARK TESTING, PRODUCT AND SOFTWARE TRIAL
14.1 Upon BAM's request, and subject to availability, Metawave shall,
before BAM places an Order, demonstrate any additional functional capabilities
of Equipment and Software at agreed times and places. The result of this
-15-
demonstration or benchmark test may, at BAM's option, be incorporated into the
Order.
14.2 Upon BAM's request, and subject to availability, Metawave shall,
at no additional charge, provide BAM with the use of products similar to
Equipment and Software ordered by BAM, but not yet installed, for purposes of
program testing, conversion, compiling and other activities if Metawave normally
provides similar use of such products to its other customers.
14.3 Metawave and BAM may agree to an Equipment and Software trial(s)
to demonstrate additional functionality which shall be governed by the following
provisions:
(1) Metawave shall bear all expenses related to the trial of
the Equipment and Software, including the cost of
transportation, installation, deinstallation, modification,
repair, maintenance, packing, and unpacking, unless
otherwise agreed to by the Parties.
(2) The trial period will begin the day following BAM's receipt
of Metawave's notice that all Equipment and Software
subject to the trial have been installed and are ready for
testing. The trial will continue for the period agreed to
by Metawave and BAM.
(3) At the end of the trial period, BAM shall notify Metawave
whether or not BAM will order the trialed Equipment and
Software. For any Equipment and Software not ordered by
BAM, Metawave shall remove such Equipment or Software
within seven (7) days after Metawave's receipt of the
notice, and BAM will promptly return any Software to
Metawave.
(4) If, during the trial, BAM decides the trial Equipment and
Software are not performing satisfactorily, BAM may request
the Metawave remove the Equipment and Software and Metawave
shall comply with this request within seven (7) days after
receipt; or BAM may permit Metawave to repair or modify the
Equipment and Software so they perform in a manner
satisfactory to BAM. The trial period may be extended for
this purpose. No repair or modification under this
paragraph shall obligate BAM to order the Equipment and
Software.
15. FORCE MAJEURE
Neither BAM nor Metawave shall be liable or deemed in default for any
delay or failure in performance of an Order or any part of this Agreement to the
extent that such delay or failure is caused by accident, fire, industry-wide
strike, embargo, act of the government, war or national emergency requirement,
act of God, or act of the public enemy ("Force Majeure Conditions").
-16-
If any Force Majeure Condition occurs, the Party delayed or unable to perform
shall promptly give notice to the other Party. The Party affected by the other
Party's delay or inability to perform may elect to:
(1) Terminate the Order or part thereof as to Product or Related
Services not already received; or
(2) Suspend the Order for the duration of the Force Majeure
Condition, and resume performance once the Force Majeure
Condition ceases.
Until notice is given otherwise, option (2) shall be deemed selected.
16. TAXES
16.1 Metawave shall bear the cost of all taxes, including but not
limited to gross receipt taxes, imposed upon Metawave. Metawave shall be
responsible to invoice BAM and remit to the appropriate government authorities
all applicable sales and use taxes imposed by law. BAM shall be responsible to
reimburse Metawave for applicable sales and use taxes billed and remitted as
required hereunder.
16.2 Metawave shall provide to BAM a sales and use tax registration
number for each state in which Related Services are performed or that is the
final destination, as set forth on the Order, of Product provided under this
Agreement. The registration number for each applicable state will be added to
every invoice issued by Metawave to BAM hereunder. Metawave shall remit the
sales/use tax to the state of final destination of Product, or the state in
which the Related Services are performed. Metawave shall notify BAM of any state
for which Metawave does not xxxx and remit sales/use taxes because Metawave does
not have nexus with that state.
16.3 If any of the Related Services include contractor services,
Metawave shall comply with any applicable state's resident and non-resident
contractor laws. Metawave will be responsible for its subcontractors compliance
with such laws. Metawave shall provide BAM with documentation of such compliance
(including subcontractor documentation), which, at minimum, shall include a copy
of the non-resident compliance certificate issued by each applicable state.
16.4 Each invoice issued by Metawave hereunder shall separately set
forth; (i) the value of the taxable Product/Related Service by individual taxing
jurisdiction, (ii) the sales/use tax for each such Product/Related Service by
individual taxing jurisdiction, and (iii) the value of nontaxable
Product/Related Services.
16.5 Metawave agrees to pay, and hold BAM harmless from and against,
any penalty, interest, tax or other charge that may be levied or assessed as a
result of the delay or failure of Metawave for any reason to pay any tax or file
any return or information required by law, rule or regulation or by contract. If
BAM believes that Metawave has failed to comply with any of the terms of this
Section 16, BAM shall discuss such failure with Metawave, and upon the
presentation of evidence that such failure has in fact occurred, BAM may
withhold up to ten percent (10%) of any invoice affected by such noncompliance.
-17-
17. NOTICE
All notices, requests, demands and other communications hereunder
shall be in writing and shall be deemed given when either personally served or
mailed by certified, registered mail, return receipt requested, or delivered by
a reputable overnight delivery service, or by facsimile transmission confirmed
by another form of delivery within one (1) business day, to:
BAM: Xxxx Atlantic Mobile Copy to: Xxxx Atlantic Mobile
000 Xxxxxxxxxx Xxxxxx Xxxx Xxxxxxx Xxxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000 000 Xxxxxxxxxx Xxxxxx Xx.
Attention: Senior RF Engineer Xxxxxxxxxx, XX 00000
Metawave: Metawave Copy to: Metawave
00000 Xxxxxxx Xxxx XX General Counsel
Xxxxxxx, Xxxxxxxxxx 00000 00000 Xxxxxxx Xxxx XX
Attention: V.P. of Sales & Marketing Xxxxxxx, XX 00000
If either Party changes its address during the term hereof, it shall
so advise the other Party in writing, and all notices thereafter required to be
given shall be sent to such new address.
18. INDEPENDENT CONTRACTORS
Neither Metawave nor its officers and directors and its associated
personnel and employees shall be deemed to be employees or agents of BAM, it
being understood that Metawave is an independent contractor for all purposes and
at all times. Metawave shall be solely responsible for the safety and
supervision of its employees as well as for the withholding or payment of all
federal, state and local personal income taxes, social security, unemployment
and sickness disability insurance and other payroll taxes with respect to its
employees, including contributions from them as required by law.
19. INDEMNIFICATION
19.1 Metawave shall defend, indemnify, and hold harmless BAM, its
parents, subsidiaries and affiliates and their directors, officers, agents and
employees from any and all liabilities, claims or demands whatsoever, (including
the costs, expenses and reasonable attorney's fees incurred on account thereof)
that may be made: (i) by any person, specifically including, but not limited to,
Metawave, its agents or subcontractors, for injuries including bodily injury
(including death to persons) or damage to property (including theft) occasioned
by or alleged to have been occasioned by the acts or omissions of the Metawave
its agents or subcontractors whether negligent or otherwise; or (ii) by persons
furnished by Metawave or any subcontractors under Worker's Compensation or
similar acts, except to the extent such liability, claim, or demand arises in
whole or in part from the negligence or willful misconduct of BAM, its agents or
employees.
19.2 Metawave shall defend BAM against any such liability, claim or
demand and control the litigation, settlement and defense thereof. The foregoing
indemnification shall apply whether the death, injury or property damage is
caused
-18-
by the sole acts or omissions of Metawave or by the concurrent acts or
omissions of BAM or Metawave hereunder, except Metawave shall not be responsible
for that portion of any liability, claim or demand to the extent that it arises
from the negligence or willful misconduct of BAM, its employees or agents BAM
agrees to notify Metawave promptly of any written claim or demands against BAM
for which Metawave is responsible hereunder.
19.3 The supplied Equipment, Hardware, Software, Product and Related
Services provided hereunder (i) shall perform on and after January 1, 2000 in as
good a manner as before such date, and (ii) shall at all times manage,
manipulate and report data involving dates (including the year 2000, dates
before and after the year 2000, and single-century and multi-century formulas)
without generating incorrect values or dates or causing an abnormally-ending
scenario within an application. Metawave shall provide BAM with evidence of
successful completion of laboratory testing, that the supplied Equipment,
Hardware, Software, Product and Related Services provided hereunder properly
performs all internal and external time and date processing. Such certification
shall be provided no later than thirty (30) days after the execution of this
Agreement. In addition, Metawave agrees to cooperate with BAM in conducting
Year 2000 interoperability tests to ensure that the supplied Equipment,
Hardware, Software, Product and Related Services do not adversely affect the
operation, output, functionality or other elements of BAM's operation. Further,
Metawave agrees to cooperate with BAM in providing information to third parties,
such as customers, regulatory bodies, and auditors, regarding Metawave's Year
2000 compliance as it relates to the supplied Equipment, Hardware, Software,
Product and Related Services. Metawave shall indemnify BAM and for any loss,
cost, or damages (including attorney's fees) sustained because of Metawave's
Year 2000 noncompliance.
20. INFRINGEMENT
20.1 The following terms apply to any infringement, suit for or claim
or allegation of infringement of any United States patent, trademark, copyright,
trade secret or other proprietary interest (collectively referred to as "IP
Claim") based on the manufacture, use, sale, resale, or importation into the
United States of any Equipment, Software, Related Service, documentation or
other item furnished to BAM under or in contemplation of this Agreement.
Metawave shall indemnify and hold harmless BAM and any of its affiliates,
customers, officers, directors, employees, assigns and successors for any loss,
damage, expense, cost (including, but not limited to, any attorney's fees
incurred in the enforcement of this indemnity) or liability that may result by
reason of any such IP Claim, and Metawave shall defend or settle, at its own
expense, any such IP Claim against BAM.
20.2 BAM shall provide Metawave with prompt written notice of any IP
Claim that identifies Equipment, Software or Related Service provided to BAM
hereunder and tender to Metawave control of any such action or settlement
negotiations to the extent covered by the indemnification provided herein.
Metawave shall keep BAM advised of the status of any such IP Claim and of its
defense and/or negotiation efforts and shall afford BAM reasonable opportunity
to review and comment on significant actions planned to be taken by Metawave on
behalf of BAM. If any such IP Claim involves other vendors of BAM, Metawave
-19-
shall cooperate as reasonably necessary to effectively defend BAM. BAM shall, at
Metawave's expense, reasonably cooperate with Metawave in the defense of BAM.
20.3 If the use, manufacture, sale, or importation in the United
States of any Equipment, Software, or Related Service furnished hereunder
becomes subject to an IP Claim, Metawave shall, at BAM's option and at no
expense to BAM, (i) by license or other release from claim of infringement
obtain for BAM and BAM's customers the right to make, use, sell and/or import
into the United States the Product, Software or Related Service, as appropriate;
or (ii) substitute an equivalent non-infringing Product, Software or Related
Service reasonably acceptable to BAM, which meets the specifications for the
Product, Software or Related Service, and extend this indemnity thereto; or
(iii) modify such Product, Software, or Related Service to make it non-
infringing but continue to meet the specifications therefore, and extend this
indemnity thereto.
20.4 Metawave shall have no obligation to BAM with respect to any
claim of patent or copyright infringement which is based upon (i) adherence to
specifications, designs, or instructions furnished by BAM, unless such
specifications, designs, or instructions are incorporated into Product made
generally available to Metawave's customers, (ii) the combination, operation or
use of any Equipment supplied hereunder with products, software, or data with
which the Equipment is not intended to be used or for which the Equipment is not
designed, unless at Metawave's direction, (iii) the alteration of the Equipment
or modification of any Software made by any party other than Metawave, unless at
Metawave's direction, or (iv) BAM's use of a superseded or altered release of
some or all of the Software if infringement would be avoided by the use of a
subsequent, unaltered release of the Software that is provided to BAM by
Metawave.
21. USE AND PROTECTION OF INFORMATION
The "Non-Disclosure Agreement" executed by the parties on April 23,
1997 as amended is attached hereto as Schedule B. If in the course of
performance of this Agreement Metawave needs to disclose BAM Confidential
Information to a subcontractor or agent, the agent/contractor shall be provided
a copy of the executed "Non-Disclosure Agreement" and shall execute an
"Acknowledgement" in the form attached to the "Non-Disclosure Agreement" as
Exhibit B of Schedule B.
22. METAWAVE'S INFORMATION
No specifications, drawings, sketches, models, samples, tools,
computer programs, technical information, business information, or data, other
than that specified in Section 21 of this Article, written, oral or otherwise,
furnished by Metawave to BAM hereunder or in contemplation hereof shall be
considered by BAM to be confidential or proprietary unless so agreed to by BAM
in writing at the time an Order is placed.
23. AVAILABILITY
The Equipment and Software listed on Schedule A shall be available for
purchase by BAM from Metawave for as long as this General Purchase Agreement is
in effect. During the term of this Agreement, Metawave shall notify BAM in
writing
-20-
if any of the Equipment is to be materially changed technically which affects
the form, fit or function of the Equipment or of any plans to suspend or close
down manufacturing of the Equipment, in order for BAM to place consolidated
Orders for its future demands. BAM shall be entitled to place Orders for the
Equipment within six (6) months of such notice, for delivery within six (6)
months of the date of such an Order. Metawave shall provide out-of-warranty
repair parts and services at Metawave's then current prices for each Equipment
for a minimum of five (5) years after the date of termination or expiration of
this Agreement for each Product as then supplied. .
24. RIGHTS IN INFORMATION
If BAM has contracted with and is paying Metawave for engineering
development pursuant to paragraph 11.3 of Article II and III of this Agreement,
then Metawave agrees that if any inventions, discoveries or improvements
relating solely to BAM peripheral equipment and infrastructure, are conceived,
first reduced to practice, made or developed, in the course of, or as a result
of, or in the preparation for, the performance of services by Metawave and its
employees, contractors, agents and subcontractors and their employees,
contractors and agents under this Agreement, Metawave hereby does assign and
will assign to BAM all right, title and interest in and to such inventions,
discoveries and improvements and any patents, copyrights or other forms of legal
protection that may be granted thereon in any country.
25. LICENSES
No licenses, express or implied, under any patents, trademarks or
copyright are granted by BAM to Metawave. No licenses, express or implied, under
any patents, trademarks or copyright are granted by Metawave to BAM except for
Software licenses contained in Article IV.
26. ASSIGNMENT
26.1 Any assignment of the work to be performed, in whole or in part,
or of any other interest hereunder by Metawave without the prior written consent
of BAM, except an assignment confined solely to monies due or to become due,
shall be void. It is expressly agreed that any such assignment of monies shall
be void to the extent that it attempts to impose upon BAM obligations to the
assignee additional to the payment of such monies, or to preclude BAM from
dealing solely and directly with Metawave in all matters pertaining hereto,
including the negotiation of amendments or settlements of amounts due. BAM, upon
five (5) days prior written notice to Metawave, may assign all its rights,
duties and obligations under this Agreement to an affiliate or affiliates of BAM
or to a partnership or partnerships to which BAM or its affiliate has an
ownership interest.
26.2 BAM shall not (i) assign, sublicense or otherwise transfer the
Software license set forth in Article IV, to any third party without the prior
consent of the Metawave, except as permitted in Section 25.1, (ii) purchase the
Equipment solely for the purpose of reselling or distributing it to a third
party (third party does not include BAM's affiliates); or (iii) permit its
directors, officers, employees, agents or any other third person to reverse
engineer the Equipment or the Software.
-21-
27. SUBCONTRACTING
Metawave shall not, without BAM's prior written approval, subcontract
any portion of the work to be performed on BAM property hereunder, except for
the purchase of standard commercial supplies and materials.
28. PUBLICITY AND ADVERTISING
Metawave shall submit to BAM all advertising, sales promotion, press
releases and other publicity matters relating to the Equipment or Software
furnished or the Related Services performed by Metawave under this Agreement
wherein BAM's name, marks or the name or xxxx of any Xxxx Atlantic Company is
mentioned or language from which the connection of said names or marks therewith
may be inferred or implied. Metawave shall not publish or use such advertising,
sales promotion, press releases, or publicity matters without BAM's prior
written approval. Metawave shall post no signs at any site at which Equipment or
Software is being installed or serviced except those required by local, state or
federal law.
29. CHOICE OF LAW
This Agreement shall be governed by the laws of the State of New York
without reference to its conflicts of law provisions and the Software shall have
the definition of goods under the U.C.C. The exclusive jurisdiction for any
legal proceeding regarding this Agreement shall be the state or federal courts
in New York and the Parties expressly submit to the jurisdiction of said courts.
30. WAIVER AND ESTOPPEL
Either Party's failure at any time to enforce any of the provisions of
this Agreement or any right with respect thereto, or to exercise any option
herein provided, will in no way be construed to be a waiver of such provisions,
rights, or options or in any way to affect the validity or enforcement of this
Agreement. The exercise by either Party of any right or options under the terms
or covenants herein shall not preclude or prejudice the exercising thereafter of
the same or any other right under this Agreement.
31. SEVERABILITY
If any provision or portion of a provision of this Agreement is
invalid under applicable statute or rule of law, it is only to that extent to be
deemed omitted, and such unenforceability shall not affect any other provision
of this Agreement, but this Agreement shall then be construed as if such
unenforceable provision(s) had never been contained herein.
32. HEADINGS
The headings in this Agreement are for convenience only and shall not
be construed to define or limit any of the terms herein.
33. INSURANCE
33.1 Metawave shall maintain, during each Term and Renewal Term of
this Agreement, at its own expense, the following insurance:
-22-
a. Worker's Compensation insurance as prescribed by the law of
the state in which the work is performed;
b. Employer's liability insurance with limits of at least
$1,000,000 each occurrence:
c. Comprehensive general liability insurance (including
products liability insurance) and, if the use of automobiles
is required, comprehensive automobile liability insurance,
each with limits of at least $1,000,000 for bodily injury,
including death, to any one person, and $1,000,000 on
account of any occurrence, and $1,000,000 for each
occurrence of property damage; and
d. Excess liability insurance with a combined single limit of
$5,000,000.
33.2 The insuring carriers and the form of the insurance policies
shall be subject to approval by BAM. BAM shall be named as an additional
insured on all such policies. Metawave shall furnish to BAM certificates of
such insurance within ten (10) days of the execution of this Agreement. The
certificates shall provide that ten (10) days prior written notice of
cancellation or material change of the insurance to which the certificates
relate shall be given to BAM. The fulfillment of the obligations hereunder in
no way modify Metawave's obligations to indemnify BAM.
33.3 Metawave shall also require Metawave's subcontractors, if any,
who may enter upon BAM's premises to maintain similar insurance and to agree to
furnish BAM, if requested, certificates or adequate proof of such insurance.
Certificates furnished by Metawave's subcontractors shall contain a clause
stating that BAM is to be notified in writing at least ten (10) days prior to
cancellation of, or any material change in, the policy.
33.4 BAM may reasonably require Metawave at any time, and from time
to time, subject to Metawave's ability to obtain such additional insurance, to
obtain and maintain in force additional insurance with coverage or limits in
addition to those above described. However, the additional premium costs of any
such additional insurance required by BAM shall be borne by BAM, and Metawave
shall arrange to have such costs billed separately and directly to BAM by the
insuring carrier(s). BAM shall be authorized by the Metawave to confer directly
with the agent or agents of the insuring carrier(s) concerning the extent and
limits of Metawave's insurance coverage in order to assure the sufficiency
thereof.
34. RELEASES VOID
Neither Party shall require waivers or releases of any personal rights
from representatives or customers of the other in connection with visits to its
premises and both Parties agree that such releases or waivers shall not be
pleaded by them or by third persons in any action or proceeding.
35. OCCUPATIONAL SAFETY AND HEALTH ACT (OSHA)
-23-
Metawave shall be responsible for the safety of its work and shall
maintain all lights, guards, signs, temporary passages, and any other necessary
protection and precautions for that purpose. Metawave and its Subcontractors
shall give access to the authorized representatives of the Secretary of Labor or
any state or local official for the purpose of inspecting or investigating or
carrying out of any of the duties under the Occupational Safety and Health Act
of 1970, and any amendments thereto, or any applicable state, or local laws,
rules, or regulations affecting safety and health. Metawave shall be
responsible for any violation by it or its subcontractors of any safety or
health standards issued thereunder, shall immediately remedy any citation giving
rise to such violations, and Metawave shall defend, indemnify, and hold harmless
BAM from any penalty, fine or liability in connection therewith.
36. NON-DISCRIMINATION COMPLIANCE
The applicable provisions in Schedule C, entitled "Non-Discrimination
Compliance Agreement" shall form a part of this Agreement and any amendments
thereto.
37. SUCCESSORS AND ASSIGNS
This Agreement shall inure to the benefit of, and shall be binding
upon the Parties hereto and their respective successors and permitted assigns.
38. BAM'S PROPERTY
38.1 Title to all property owned by BAM and furnished to Metawave
shall remain in BAM.
38.2 Any property to which BAM has title and which is in Metawave's
possession or control shall be used only in the performance of this Agreement
unless authorized in writing by BAM. Metawave shall adequately protect such
property, and shall deliver or return it to BAM or otherwise dispose of it as
directed by BAM.
39. LAWS, RULES AND REGULATIONS
39.1 Metawave shall comply, at its own expense, with the applicable
provisions of the EEO, Fair Labor Standards Act of 1938, as amended, The
Occupational Safety and Health Act, and all other applicable federal, state and
local laws, ordinances, regulations and codes including identification and
procurement of required permits, certificates, approvals and inspections in
performance under this Agreement.
39.2 The employee and agents of each Party shall, while on the
premises of the other, comply with all governmental rules and regulations in
effect at such premises, including security requirements. Metawave's right of
entry shall be subject to applicable governmental security laws.
39.3 Both Parties agrees to indemnify and hold the other Party
harmless for any loss or damage that may be sustained by reason of any failure
to comply with this Section 39.
-24-
40. ATTORNEYS' FEES AND COSTS
In the event that this Agreement or any Order is breached by Metawave,
then, in addition to all other rights and remedies BAM may have, at equity and
in law, Metawave shall be liable for BAM's reasonable attorneys' fees and costs
incurred in collecting any sums that are due and owing under this Agreement or
in taking any legal action that is necessary in order to enforce the terms and
conditions of this Agreement.
41. COUNTERPARTS
This Agreement may be executed in counterparts, all of which shall be
considered an original and together they shall constitute one (1) agreement.
-25-
ARTICLE II
TERMS AND CONDITIONS APPLICABLE TO
EQUIPMENT ACQUISITION
1. SCOPE
Metawave shall provide to BAM the Equipment and Related Services as
described in the Orders BAM may from time to time place hereunder.
2. FORM OF ORDER
Each Order for Equipment and Related Services shall contain the
following:
(1) Date of Order and Order Number;
(2) The incorporation by reference of this Agreement:
(3) The incorporation by reference of specifications which differ
from those in published guides;
(4) A detailed list of the Equipment or Related Services that are
required. Such list is to include where applicable quantities,
model numbers, features, descriptions, specifications, prices,
charges, purchase option credits, and discounts. The last will
indicate which equipment is purchased and which is leased;
(5) The billing and delivery addresses;
(6) The required dates for delivery and installation of Equipment or
Related Services;
(7) The name and telephone number of the BAM person to contact
regarding delivery and the coordination of other activities; and
(8) Any other special terms and conditions that are not provided for
elsewhere in the Order or this Agreement.
3. SITE PREPARATION
3.1 Metawave shall promptly perform a site survey and shall promptly
furnish to BAM site preparation specifications in such detail as to ensure that
the Equipment to be installed shall operate efficiently from an environmental
point of view. BAM shall prepare the site at its own expense and in accordance
with the site specifications. Metawave shall reimburse BAM for any site
preparation expenses needlessly incurred because of inaccurate site preparation
specifications, or because the site was prepared for Equipment which was
returned for failure to conform to the provisions of this Agreement.
3.2 The following items are not included in the prices shown on
Schedule A and are the responsibility of BAM: [***]
-26-
3.3 BAM shall use reasonable efforts to provide safe and secure
access to the sites for Metawave's employees during the performance of Services.
BAM shall make each site available to Metawave during a mutually agreed upon
period of time.
3.4 If performance of Services by Metawave is delayed for reasons
beyond the control of Metawave, or if additional Services are required by BAM,
the prices for Services shown herein may be adjusted accordingly upon mutual
written consent of the parties.
3.5 Performance of the Services set forth herein is dependent on BAM
and/or Metawave obtaining any and all necessary licenses, permits and
governmental approvals required to perform the Service. Metawave shall be held
liable for any non-performance due to delays in obtaining any of the above
documentation and/or approvals which are the responsibility of BAM.
4. TRANSPORTATION
4.1 Metawave shall deliver the Equipment complete and in accordance
with BAM instructions, if any, with transportation charges prepaid by Metawave.
Metawave shall deliver the Equipment in sufficient time to meet the required
installation date. BAM may delay the delivery of the Equipment by giving the
Metawave notice prior to shipment.
4.2 Metawave shall, at no additional charge, properly pack the
Equipment in connection with the shipment of such Equipment to the delivery
location and in connection with the removal of such Equipment, if such Equipment
is returned to Metawave pursuant to this Agreement.
4.3 Unless BAM provides special shipping instructions, transportation
charges shall not exceed the cost of shipment via surface common carrier between
the delivery location and Metawave's facility. BAM shall reimburse Metawave for
such transportation charges for the shipment of the Equipment to the delivery
location. BAM shall reimburse Metawave for rigging and drayage costs incurred
at the delivery location.
4.4 If Metawave removes or replaces any Equipment because such
Equipment is non-conforming with the provisions of this Agreement, Metawave
shall bear all transportation charges including rigging and drayage costs. If
BAM has already paid Metawave for such charges, Metawave shall promptly refund
such payment.
4.5 Metawave shall be responsible for dealing with carriers to ensure
delivery of shipments, locating missing or late shipments, resolving billing for
transportation charges, and submitting and resolving all claims arising from
loss of or damage to such shipments.
-27-
4.6 Claims for transportation damage shall be filed and processed by
Metawave. Without cost to BAM, and at BAM's option, damaged Product, Software
shall be promptly repaired to the satisfaction of BAM or replaced, with all
replacement parts to be handled on an expedited shipping basis.
5. TITLE AND RISK OF LOSS
On all Orders for Equipment title shall vest in BAM and risk of loss
pass to BAM only when Equipment has been delivered at the F.O.B. point of
destination.
6. INSTALLATION AND COMMISSIONING
6.1 Metawave shall install the Equipment, perform its standard test
procedures and prepare the Equipment for Commissioning, all on or before the
ordered Commissioning date and Metawave shall certify to BAM that such Equipment
is ready for the Commissioning. There shall be no installation or Commissioning
charges associated with any Equipment except those charges that are listed in
the Order. Metawave shall remove and dispose of all packing materials and other
surplus materials upon completion of the installation.
6.2 No Equipment shall be deemed to be installed until all Equipment
and all Software required by the Order has been installed. However, the Parties
may agree that Commissioning can be certified on a site by site basis.
6.3 If Metawave fails to complete such Commissioning and deliver to
BAM its certification of Commissioning on or before the ordered Commissioning
date, BAM may either cancel the Order or extend such ordered Commissioning date
to a subsequent date. If BAM elects to extend the ordered Commissioning date,
the Parties agree that BAM will be damaged in an amount which will be difficult
to determine with certainty. Therefore, Metawave agrees to pay BAM as a late
Commissioning-charge, and not as a penalty, an amount equal to one percent (1%)
of the purchase price for each week or part thereof of delay occurring after the
ordered Commissioning date originally specified on the Order until either the
Commissioning date or the date on which BAM cancels the Order, whichever first
occurs. Such late Commissioning-charge shall not accrue beyond twelve (12) weeks
of delay and shall take the form of a credit against the purchase price of the
Equipment in favor of BAM.
6.4 The foregoing not withstanding, in the event that construction
delays or other causes not covered by Section 15 of Article I (Force Majeure)
and not within the reasonable control of Metawave, force postponement of the
installation of a Product, the Product, shall be stored until installation can
be resumed. Transfer and storage charges incurred shall be paid by BAM. Labor
costs for loading and unloading shall be based upon an hourly rate to be
determined by agreement between BAM and Metawave. The cost of special services,
such as design, warehousing, inventory, etc., shall be negotiated between BAM
and Metawave prior to placement of the Order.
-28-
7. SELF INSTALLATION
7.1 BAM may, at its option, install the Equipment. Such election
shall be stated in the Order or anytime prior to delivery. If BAM so elects to
install the Equipment, Metawave shall, if requested by BAM, provide services
relating to installing, Commissioning, and optimizing, at a mutually agreed upon
rate.
7.2 If BAM elects to install the Equipment and Metawave fails to
deliver the Equipment by the ordered delivery date, Metawave shall be subject to
a late delivery charge in the form of a credit against the purchase price of the
Equipment as provided for in Section 6 of this Article (Installation and
Commissioning), except that the calculation of damages will be based on the
delay occurring after the ordered delivery date until the actual delivery date
rather than after the ordered Commissioning date. In addition, BAM may cancel
the Order.
8. INSTALLATION, ASSISTANCE AND TECHNICAL SUPPORT
8.1 At the reasonable request of BAM, Metawave shall promptly make
available at the installation site a field engineer to render installation
assistance as required by BAM. Such service shall be as referenced in
Section 7.
8.2 Metawave shall provide BAM with ongoing technical support,
including, field service and assistance. During the Warranty period, such
technical support shall be provided without charge to BAM, unless otherwise
specified in Schedule A. The availability or performance of this technical
support service shall not be construed as altering or affecting Metawave's
warranties or any other obligation of Metawave under this Agreement.
9. CABLES AND RELATED ITEMS
An Order shall be deemed to include all items necessary for the proper
operation of the Equipment as ordered by BAM, provided by Metawave, and includes
any other components or materials necessary to enable the operation of the
Equipment in accordance with the specifications.
10. ENGINEERING CHANGES
10.1 If any engineering change(s) is generally adopted by Metawave
affecting the Products hereunder, BAM will be notified of such engineering
change(s). Engineering changes which are (i) generally made available by
Metawave to customers on the same Equipment provided hereunder and (ii) are
intended to correct defects in the Equipment, shall, with the consent of BAM, be
made by Metawave to the Equipment at no charge. The administration and
installation of engineering changes shall be accomplished by Metawave, unless
otherwise agreed to by the Parties.
10.2 Engineering changes which correct a safety defect shall be made
as soon as possible at no charge. Metawave shall notify BAM of any such safety
defect and recommended interim safety measure to be taken.
10.3 Any change occurring in BAM peripheral equipment and
infrastructure which affect the form, fit or function of the supplied Equipment
(e.g. engineering changes or adjustment to Products that may be required by BAM)
shall be addressed
-29-
by the Metawave within thirty (30) days following written notification by BAM.
Depending on the nature and scope of such change, Metawave will advise BAM of
lead-time and any costs, if necessary, to provide engineering changes.
[***]
12. RELOCATION OF EQUIPMENT
BAM may move Equipment from one location to another. At BAM's request,
Metawave shall arrange for and supervise the dismantling, packing and moving of
any purchased Equipment and shall inspect and reinstall such Equipment at the
new location. In addition, Metawave shall specify to BAM, prior to any move,
which of the existing cables and ancillary equipment associated with the
Equipment to be moved are reusable at the new site. BAM shall pay Metawave for
such Related Services at Metawave's published rates.
13. SUPPLIES AND/OR REPLACEMENT PARTS
Metawave shall provide BAM with specifications for all supplies or
replacement parts which are used or required to operate any Equipment. The
relevant supplies shall be available from Metawave upon BAM request for a
minimum of [***] years following the acquisition of the Equipment.
14. CONVERSION OF FINANCIAL ARRANGEMENT
BAM may elect to convert any part or all of an Order for purchase
Equipment, any time prior to shipment to a third party lease, or, subject to
availability by Metawave, to any of Metawave's purchase, installment sale,
lease, rental plan, or other marketing pricing policy and may do so with no
liability.
15. TRANSFER OF TITLE TO A THIRD PARTY
In connection with the financing of Equipment, BAM may request
Metawave to pass title to the Equipment directly to an assignee designated by
BAM. If BAM requests, Metawave shall execute a xxxx of sale conveying title to
the Equipment to the assignee. In such event, the assignee shall succeed to all
of BAM's rights under the Order with respect to the Equipment, although BAM
shall continue to exercise such rights on behalf of the assignee until Metawave
is otherwise notified. Notwithstanding the foregoing, BAM guarantees payment of
the purchase price for the Equipment to Metawave. The right of BAM to request
Metawave to pass title to the Equipment to the assignee shall include the right
to sublicense any licensed Software relating to the Equipment without the
payment of any additional license fees to Metawave.
-30-
16. NEW EQUIPMENT
Metawave warrants that the Equipment shall be new and of original
manufacture in the United States.
17. REMOVAL OF EQUIPMENT
17.1 Promptly after the cancellation of an Order, pursuant to this
Agreement Metawave shall, at its expense, pack and remove the Equipment affected
thereby. In addition, Metawave shall make all necessary transportation
arrangements to ship the Equipment away from BAM premises.
17.2 If Metawave for any reason does not remove the Equipment within
ten (10) days after the cancellation of an Order or the termination of a lease,
BAM may, at Metawave's expense and risk, arrange to have the Equipment packed
and shipped to Metawave. In such event, Metawave shall promptly, after receipt
of BAM invoices, reimburse BAM for any costs which may thereby be incurred.
-31-
ARTICLE III
TERMS AND CONDITIONS APPLICABLE TO THE METAWAVE'S HARDWARE
MAINTENANCE PROGRAM
1. SCOPE
1.1 Metawave shall provide to BAM Metawave's Hardware Maintenance
Program ("HMP") which is necessary to maintain the Equipment in accordance with
its specifications and to keep the same in good working order and operating
condition as described in the Orders BAM may from time to time place hereunder.
1.2 Equipment maintained hereunder shall include Equipment ordered
under this Agreement, and Metawave's equipment acquired from other sources which
has been maintained to Metawave's specifications, inspected by Metawave and
refurbished, as necessary, to specifications by Metawave at Metawave's published
rates.
1.3 Metawave shall make available to BAM, prior to commencement of
HMP, at Metawave's published rates, documentation to facilitate installation,
operation and preventive and remedial maintenance. If the originally produced
documentation is changed as a result of the application of an engineering change
to a field installation, BAM shall be provided with the updated documentation at
no charge.
1.4 Pursuant to the terms of this Agreement, Metawave shall provide
BAM with Metawave owned or licensed diagnostic software which is made available
by Metawave for commercial use and which is necessary for BAM's maintenance of
the Equipment.
2. FORM OF ORDER
Each Order for maintenance Related Services or HMP shall contain the
following:
(1) Date of Order and Order Number;
(2) The incorporation by reference of this Agreement;
(3) The billing and Equipment location addresses;
(4) The required commencement dates for maintenance Related Services,
and the length of term for such Related Services;
(5) The name and telephone number of the BAM contact person regarding
the coordination of the activities;
(6) A detailed list of the Equipment to be maintained. Such list is
to include serial number, quantities, model numbers, features,
descriptions and maintenance charges; and
-32-
(6) Any other special terms and conditions that are not provided for
elsewhere in the Order or this Agreement.
3. AVAILABILITY OF MAINTENANCE AND SPARE PARTS
3.1 Metawave shall assist BAM in determining BAM's requirements for
an inventory of spare parts by providing BAM with a standard spare parts list
and the current usage statistics for such parts.
3.2 Metawave shall make available to BAM spare parts and HMP for a
period of not less than [***] from the date of the each Order. The price for
such spare parts and HMP will be listed in Metawave's published rates. If
subsequent to such [***] period Metawave no longer makes available a spare part,
Metawave shall notify BAM one (1) year in advance of its decision to discontinue
the spare part. If during the seven (7) year period, Metawave fails to provide
such HMP or spare parts or is unable to obtain an alternate source acceptable to
BAM, then such inability shall be deemed noncompliance with this Agreement. In
addition to the other rights and remedies BAM may have at law and equity under
this Agreement, BAM shall have the right to require Metawave, without charge, to
provide technical information and any other rights to allow BAM to obtain such
HMP and spare parts through its own manufacture or contracts with other vendors.
3.3 The technical information noted above shall include, but is not
limited to: (a) manufacturing drawings and specifications of raw materials and
components comprising such parts; (b) manufacturing drawings and specifications
covering special tooling and the operation thereof; (c) a detailed list of all
commercially available parts and components purchased by Metawave on the open
market disclosing the part number, and name and location for the purchase
thereof; and (d) one (1) complete set of equipment diagrams and maintenance
procedures.
3.4 Metawave shall provide spare parts on an emergency basis to BAM
through Metawave's field service channels upon request on an overnight basis.
Such parts may be new or refurbished parts and may be exchanged at Metawave's
standard exchange rates.
3.5 Throughout the warranty period, Metawave shall repair or replace,
and return to BAM within thirty (30) days defective parts which are shipped to
Metawave. The estimated cost of repair shall be specified at the time the
request for repair is made by BAM. If during the repair of the part Metawave
determines that the cost of repair will deviate by ten percent (10%) or more
from the estimate, Metawave shall notify BAM. If a part is deemed irreparable,
Metawave shall notify BAM.
3.6 The Party shipping any part under this Section 3 shall bear the
cost of transportation and risk of loss.
-33-
3.7 Metawave shall use only new parts or parts of equal quality and
operating specifications in performing maintenance. Parts that are removed and
replaced shall become the property of Metawave. All parts placed into operation
shall become the property of the owner of the Equipment.
4. METAWAVE RESPONSIBILITIES FOR TYPE 1 EMERGENCY
4.1 During the warranty period or subsequent HMP, Metawave shall
provide telephone support for Type 1 Emergencies during Metawave's normal hours
of operation. Type 1 Emergencies are defined as those incidences that are non-
Service affecting. Response time shall be within one (1) hour from the time BAM
makes contact with Metawave. Telephone support shall include, but not be limited
to: engineering change information, diagnostic error interpretation, diagnostic
updates information, etc. Metawave shall provide BAM with the procedure and name
of the responsible contact for providing requested telephone support.
4.2 If required, Metawave shall respond to an emergency repair
request for Type 1 Emergency by dispatching qualified personnel within twenty-
four (24) hours of the time the request is placed with Metawave. Metawave shall
make available such technical support for Type 1 Emergencies during Metawave's
normal hours of operation.
5. METAWAVE RESPONSIBILITIES FOR TYPE 2 EMERGENCY
5.1 During the warranty period or subsequent HMP, Metawave shall
provide telephone support for Type 2 Emergency on a twenty-four (24) hour per
day basis, seven (7) days a week. Type 2 Emergencies are defined as those
incidences that prohibit or severely limit BAM's ability to provide services.
Response time shall be within one (1) hour from the time BAM makes contact with
Metawave. Telephone support may include, but not be limited to: engineering
change information, diagnostic error interpretation, diagnostic updates
information, etc. Metawave shall provide BAM with the procedure and name of the
contact responsible for providing requested telephone support.
5.2 If required, Metawave shall respond to an emergency repair
request for Type 2 Emergencies by dispatching qualified personnel within eight
(8) hours of the time the request is placed with Metawave. Metawave shall make
available technical support for Type 2 Emergencies twenty-four (24) hours per
day, seven (7) days a week.
5.3 On all requests for Type 2 Emergencies, Metawave shall provide
continuous effort until the Equipment is restored to operational condition.
Metawave's escalation guidelines as specified in Section 15 of this Article 3
(Escalation Guidelines) shall apply from the time the Metawave's representative
arrives at BAM's site.
6. BAM's RESPONSIBILITIES
6.1 Unless otherwise requested of Metawave by BAM, BAM shall perform
all preventive and remedial maintenance.
-34-
6.2 BAM shall maintain, at BAM's site or within a convenient
distance, an inventory of spare parts including tools, documentation,
diagnostics, and test equipment for all Equipment covered hereunder and shall
continually replenish the inventory based upon, but not necessarily in
conformity with, Metawave's recommended level. Access to and use of the parts
shall be provided to Metawave when providing HMP hereunder.
7. ON-SITE MAINTENANCE
7.1 BAM may order dedicated On-Site field engineers at Metawave's
published rates. These rates shall be provided to BAM upon request.
7.2 On-Site maintenance coverage shall include for the charge
specified in the Order, any time during a consecutive ten (10) hour period,
daily, Mondays through Fridays, excluding New Year's Day, Washington's Birthday,
Memorial Day, Independence Day, Labor Day, Thanksgiving Day and Christmas Day.
Unless otherwise specified in that Order, such ten (10) hour period shall be
from 7:00 a.m. to 5:00 p.m. local time, with one (1) hour for lunch normally
taken between 12:00 noon and 1:00 p.m.
7.3 On-Site maintenance coverage may be extended to include
additional time periods and weekends at an additional charge and may be
increased to twenty-four (24) hours a day seven (7) days a week for three
hundred sixty-five 365 days a year.
7.4 Any absences from the shift described herein shall be by mutual
agreement prior to such absences with credit on invoices for such absences. For
any extended absences such as during vacation periods, Metawave agrees to assign
an alternate resident field engineer for the duration of such absences.
7.5 Additional temporary support personnel shall be sent to support
the resident field engineer when this requirement is deemed necessary to assure
continued efficient operation.
7.6 On-Site maintenance coverage shall be at the direction of BAM.
7.7 The coverage period for On-Site maintenance may be changed by BAM
upon thirty (30) days prior notice to Metawave, subject to the terms of Section
7.2 of this Article.
8. NOTIFICATION AND RESPONSE
8.1 Metawave shall furnish its designated point of contact to enable
BAM to promptly notify Metawave of the need for maintenance.
8.2 Metawave shall provide continuously updated charts on its
maintenance organization up to and including the national support level. Such
charts shall include twenty-four (24) hour contact information.
-35-
9. MAINTENANCE TERM AND MAINTENANCE CHARGES
9.1 Metawave's HMP is included in the purchase Price of each piece of
Equipment purchased by BAM and shall extend throughout the duration of the
Warranty Period, as set forth in Section 13.2 of Article 1 ("Initial HMP").
Following the expiration of the Initial HMP, BAM has a choice of (i) subscribing
to Metawave's HMP on an annual basis pursuant to the terms herein and at the HMP
fees set forth in Schedule A ("Extended HMP") for the duration of the term of
the Agreement and thereafter at Metawave's then current HMP fees, or (ii) having
defective Field Replaceable Units ("FRUs") repaired or replaced with refurbished
FRUs at Metawave's then current repair rates.
9.2 The HMP charge set forth in Schedule A is not subject to increase
during the initial maintenance term. Thereafter the HMP charge is subject to
change by Metawave upon ninety (90) days prior written notice to BAM; provided,
however, that such HMP unit charge shall not be increased more than once in any
twelve (12) month period and in no event shall any increase exceed five percent
(5%) of the HMP unit charge applicable to the preceding year.
9.3 Metawave shall have no responsibility to repair or replace FRUs
which have been repaired or altered in an unauthorized manner not in accordance
with Metawave's Maintenance Program, or which have had the bar code, serial
number, or other identifying xxxx modified, removed or obliterated through an
intentional action by BAM. In the event that BAM sends a FRU to Metawave for
which no defects or failures can be found, Metawave may invoice BAM at the then
current fee for the services rendered during the evaluation process. Such
charges shall only be rendered after three (3) such occurrences within a sixty
(60) day period.
10. ENGINEERING COMPLAINTS
10.1 Receipt of an engineering complaint from BAM shall be
acknowledged by Metawave within fifteen (15) days. Such acknowledgment shall
include the proposed resolution of the stated problem, or the date by when a
solution might be expected. In the event that Metawave anticipates that the
solution to the engineering complaint will exceed thirty (30) days, then
Metawave shall issue biweekly progress reports to BAM, reporting actions taken
and progress made during the reporting period. In addition, such reports will
indicate the approximate date by which Metawave anticipates that the ongoing
engineering complaint may be successfully resolved.
10.2 In the event that the engineering complaint is marked service
emergency, then Metawave agrees to exert effort which goes beyond that which is
customarily provided to resolve engineering complaints. Metawave further agrees
to provide status reports to BAM's Manager, Engineering/Inspection Coordination,
as frequently as may be mutually determined.
10.3 BAM's point of contact for all engineering complaint information
and correspondence shall be BAM CTO, 000 Xxxxxxxxxx Xxxxxx Xxxx, Xxxxxxxxxx, Xxx
Xxxxxx 00000. All such engineering complaints should be directed to the numbers
identified in 16.1 of this Article.
-36-
11. ENGINEERING CHANGES
11.1 Engineering changes which are (i) generally made available by
Metawave to customers on the same Equipment provided hereunder and (ii) are
intended to correct defects in the Equipment shall, with the consent of BAM, be
made by Metawave to the Equipment at no charge. The administration and
installation of engineering changes shall be accomplished by Metawave, unless
otherwise agreed to by the Parties.
11.2 Engineering changes which correct a safety defect shall be made
as soon as possible at no charge. Metawave shall notify BAM of any such safety
defect and recommended interim safety measure to be taken.
11.3 Any change occurring in BAM peripheral equipment and
infrastructure which affect the form, fit or function of the supplied Equipment
(e.g. engineering changes or adjustment to the Products that may be required by
BAM) shall be addressed by Metawave within thirty (30) days following written
notification by BAM. Depending on the nature and scope of such change, Metawave
will advise BAM of lead-time and any costs, if necessary, to provide engineering
changes.
12. EQUIPMENT NON-PERFORMANCE CREDIT
If any Equipment furnished by Metawave hereunder for commercial
service experiences Equipment non-performance period(s) due to malfunction of
Equipment as specified below, the credits contained in this Article 3, Section
12, shall apply to BAM's HMP monthly maintenance charge. If the Equipment is
operating at less than [***] call processing capacity, (as measured by traffic
usage over the previous thirty (30) day period) (i) for any eight (8)
consecutive hour period or (ii) for a more than twenty-four (24) total hours in
any thirty (30) day period, then Metawave shall grant BAM a credit against the
HMP monthly maintenance charge for each such hour in the amount of [***] of the
monthly maintenance charge for such defective Equipment. An Equipment non-
performance period shall begin upon BAM's notification to Metawave and shall end
when the Equipment has achieved [***] call processing capacity. BAM shall issue
a debit memorandum and associated documentation to Metawave reflecting the
amount of such credit. The Equipment non-operational periods shall be for
periods of time directly caused by the non-performance of the Equipment. Any
non-performance caused by third party equipment, force majeure or other events
outside the control of Metawave shall not be counted toward non-operational
periods. If BAM receives a credit under this Article III, Section 12, for a
particular non-performance period, then BAM shall not be eligible to receive a
credit under Article IV, Section 12.7. If the non-performance is caused by both
Equipment nonperformance and Software nonperformance, BAM shall receive the
higher credit.
13. REMEDIES FOR EQUIPMENT FOR FAILURE TO MEET OPERATIONAL LEVEL
If any Equipment maintained hereunder fails to perform at an
operational level of as defined in Article III, Section 12, during two (2)
consecutive calendar months, BAM may, at its option, require Metawave to within
thirty (30) days after notification to Metawave, replace such Equipment at no
additional cost to BAM. Any Equipment that cannot be restored to good working
order and operating condition shall be removed at Metawave's expense.
-37-
14. WARRANTY
14.1 In lieu of the warranty period specified in Section 13 of
Article I (Warranties), the warranty period for spare parts under this Article
III shall be for ninety (90) days from the date shipment to BAM.
14.2 Metawave's responsibility under this warranty shall be to either
replace or repair the defective spare part.
15. ESCALATION GUIDELINES
Metawave shall endeavor to initiate support within the specified
response time. If the trouble has not been corrected within twenty-four (24)
hours after the request for support, the trouble shall be escalated to
Metawave's engineering laboratories. No charge will be made for any escalation.
16. PROCEDURES FOR METAWAVE'S HMP
16.1 Metawave's Customer Support
Customer Support can be reached by call the following numbers:
Domestic phone: 000-000-0000
International phone: 000-000-0000
16.2 Return Material Authorization (RMA)
BAM must contact Customer Support via telephone, e-mail or fax to
obtain a Return Material Authorization (RMA) number. Metawave may return
shipments without a RMA number to the BAM unrepaired and at BAM's expense. The
RMA number must be clearly written on the outside of the package. A RMA number
will not be issued until an Order is provided for the repair price for those
items not covered under warranty.
16.3 Return Address
All Field Replaceable Units (FRUs) must be shipped to:
Metawave Communications Corporation
00000 Xxxxxxx Xxxx X.X.
Xxxxxxx, XX 00000-0000 XXX
c/o BAM Returns
16.4 Packing Instructions
BAM must pack all returned equipment in a manner no less protective to
such Equipment than the manner in which Metawave packages similar equipment.
16.5 Repair Purchase Orders
Repair purchase orders are required in the following instances:
When BAM returns out of warranty FRUs for repair; or
-38-
When Metawave sends pre-exchange FRU to BAM prior to the defective FRU
being received by Metawave, and if defective FRU is not received within five (5)
days of shipment of replacement FRU.
Under these circumstances, a facsimile copy of the purchase order may
be transmitted to Metawave and followed up by a confirming hard copy in the
mail.
16.6 Expedite Service
In an emergency situation that requires an expedited shipment,
Metawave offers Expedite Services upon BAM's request at no additional charge
except that BAM shall pay for additional expedite freight charges, if any. If
the HMP has expired, such expedite service will carry an additional fee of $300
plus freight charges (plus the price of FRU if out of warranty) per FRU.
16.7 Invoices and Payment
Invoices are payable in accordance with the terms of the Agreement
between Metawave and BAM. In the event pre-exchanged FRU's are not returned by
BAM to Metawave within five (5) days then Metawave shall invoice BAM for the
amount of the exchanged FRU's.
16.8 Duties and Taxes
All duties, customs clearance fees and any and all taxes will be the
responsibility of the Customer.
16.9 Non-compliance
Failure to comply with any of the procedures may result in delay or
non-delivery of the FRUs.
-39-
ARTICLE IV
TERMS AND CONDITIONS APPLICABLE TO
ANY PURCHASE THAT INCLUDES LICENSED SOFTWARE
AND/OR SOFTWARE MAINTENANCE SERVICE
1. SCOPE
Metawave shall provide to BAM Metawave's Software and Related Services
as described in Orders BAM may from time to time place hereunder.
2. DEFINITIONS
Terms which are capitalized have the meanings set forth below or,
absent definition herein, as contained in the Agreement.
2.1 "Feature" refers to an innovation or performance improvement to
Software that is made available to all users of the current Software release.
Features are licensed to BAM individually and may be at additional cost.
2.2 "Major Release" indicates a new version of Software that adds new
Features (excluding Optional Features) or major enhancements to the currently
existing release of Software.
2.3 "Point Release" indicates a modification to Software resulting
from planned revisions to the current release, or corrections and/or fixes to
the current release of Software.
2.4 "Software Patch" refers to software that corrects or removes a
reproducible anomaly or "bug" in an existing Major Release.
3. FORM OF ORDER
Each Order for Software and Related Services shall contain the
following:
(1) Date of Order and Order Number;
(2) The incorporation by reference of this Agreement;
(3) The incorporation by reference of additional specifications;
(4) If, applicable, a detailed list of the Software or Related
Services that are required. Such list is to include
quantities, descriptions, specifications, prices, charges,
and discounts;
(5) The billing and delivery addresses;
(6) The required dates for delivery and installation of the
Software, commencement dates for licenses or Related
Services, and the length of term for licenses or Related
Services;
-40-
(7) The name and telephone number of the BAM person to contact
regarding the coordination of activities; and
(8) Any other special terms and conditions that are not provided for
elsewhere in the Order or this Agreement.
4. LICENSE
4.1 Metawave grants to BAM a non-exclusive, nontransferable license,
except as otherwise provided herein, for the use including remote access usage
of Metawave's Software ordered hereunder, to routinely operate and monitor the
Equipment with which the Software was delivered. During the warranty period, all
purchased future releases, patches, fixes, corrections, enhancements,
improvements and updates relating to such Software are included. Thereafter, all
such fixes and enhancements shall be made available to BAM under Metawave's
Software Maintenance Program as described herein. Remote access functionality
requires the purchase of the Remote Software option.
4.2 With each license of Software ordered hereunder, Metawave shall
provide BAM documentation which either is provided by Metawave to any of its
other customers for the Software or is reasonably necessary to enable BAM to
adequately use such Software. Documentation shall comply with commonly accepted
industry standards with respect to content, size, legibility and
reproducibility.
4.3 BAM shall have the right to reproduce all documentation including all
machine-readable documentation for the Software, provided that such reproduction
is made solely for BAM's permitted use hereunder. Any such reproductions shall
include any copyright or similar proprietary notices contained on the items
being reproduced.
4.4 Metawave warrants that it has the sole and exclusive right to grant
the licenses ordered thereunder.
4.5 No title or ownership rights to the Software or any of its parts,
including documentation, except as provided herein, is transferred to BAM.
4.6 BAM acknowledges that it is the responsibility of BAM to take
reasonable measures to safeguard Software and to prevent its unauthorized use,
distribution, or duplication.
4.7 BAM shall not reverse engineer, decompile, disassemble, or modify the
Software or any portion thereof.
5. LICENSE TERM
5.1 The license term for Software shall commence on the date of
acceptance for the Initial Order and upon shipment for all other Orders of the
-41-
Equipment and Software and shall continue perpetually or until canceled or
terminated as provided herein.
5.2 BAM may terminate the license term of any Software by giving
Metawave thirty (30) days prior written notice. Termination of such license term
shall also automatically terminate any maintenance Related Services for such
Software.
5.3 Metawave may terminate the license granted hereunder if BAM is in
material default of any of the terms and conditions of this License Agreement
and such termination shall be effective if BAM fails to correct such default
within sixty (60) days after written notice thereof by Metawave.
5.4 In the event that BAM is required to return the Software,
pursuant to the Agreement or in the event that BAM returns the Equipment, this
license shall terminate immediately upon such return of the Software or
Equipment to Metawave.
5.5 Within one (1) month after termination of the license granted
hereunder, BAM shall furnish to Metawave a document certifying that through its
best efforts and to the best of its knowledge, the original and all copies in
whole or in part of all Software, in any form, including any copy in an updated
work, have been returned to Metawave or destroyed.
6. LICENSE FEE
6.1 The Software licensing fees for the most current versions of the
Software (available at the time of purchase of Equipment) are included in the
purchase price of the Equipment. Software Updates are available under the
Software Maintenance Program described herein for additional licensing fees.
6.2 If the license term is not perpetual, the license fee set forth
in the Order is not subject to increase during the first year. Thereafter, the
license fee may be changed by Metawave following the end of the initial license
term upon ninety (90) days prior written notice to BAM; provided, however, that
such license fee shall not be increased more than once in any twelve (12) month
period and in no event shall any increase exceed [***] of the
license fee applicable to the preceding year.
7. SOFTWARE DELIVERY
7.1 Metawave shall deliver the Software complete and in accordance
with BAM's instructions, if any, with transportation charges paid by Metawave.
Metawave shall deliver the Software in sufficient time to meet the required
delivery date. BAM may delay the delivery of the Software by giving the Metawave
notice prior to shipment. BAM shall arrange and pay for transportation for
Software required to be returned to Metawave under this Agreement.
7.2 If Metawave fails to complete such delivery of Software ordered
by BAM on or before the ordered delivery date, BAM may either cancel the Order
or extend such ordered installation date to a subsequent date. If BAM elects to
extend
-42-
the ordered installation date, the Parties agree that BAM will be damaged in an
amount difficult to determine with certainty. Therefore, Metawave agrees to pay
BAM as a late delivery charge, and not as a penalty, an amount equal to [***] of
the purchase price for that Software Feature for each week, or part thereof, of
delay occurring after the ordered delivery date originally specified. Such late
delivery charge shall not accrue beyond twelve (12) weeks of delay and shall
take the form of a credit against the purchase price of the Software or any
future Software in favor of BAM.
8. RISK OF LOSS
8.1 Metawave shall bear the risk of loss of or damage to the Software
during shipment. Metawave shall promptly replace such Software when lost or
damaged at no additional charge.
8.2 BAM shall bear the risk of loss or damage to the Software media
or documentation in its possession. Metawave shall promptly replace the
Software, Software media or documentation when lost or damaged at the charge for
the media or documentation. No additional license fee will be charged for
replacement of the Software.
9. INSTALLATION
Metawave shall install the embedded Software on the Equipment
specified on the Order, perform its standard test procedures and prepare the
Software required for Commissioning. With respect to the Initial Order, when
Metawave certifies that the Software has passed all of Metawave's acceptance
testing, the Software shall be certified as ready for BAM's acceptance testing,
in accordance with Article V.
10. NEW RELEASES
10.1 During the warranty period and if BAM elects to purchase
Software Maintenance, new versions of any Software to be provided as a generic
release common to all licensees of such Software, shall be supplied at the
prices specified in Schedule A or at Metawave's then current published rates.
10.2 Metawave shall support the current Major Release and associated
Point Releases and Features for a minimum period of two (2) years after the
issuance of such Software. However, any support provided for Software older than
two (2) years from the issue date may be on a time and material basis. An Order
is required to render such service.
11. SOFTWARE MAINTENANCE
During the warranty period and if BAM elects to purchase Software Maintenance
the following shall apply:
11.1 Metawave shall provide maintenance described herein including
error corrections, upgrades and modifications to keep the Software in good
working order and operating condition or to restore such Software to good
working order and operation condition.
-43-
11.2 BAM will be responsible for problem identification of
reproducible Software malfunctions. In the event of any such Software
malfunction, BAM shall notify Metawave promptly of the failure through calling
Metawave's Customer Support.
11.3 Metawave shall provide a telephone contact point to which BAM
can notify Metawave of the need for maintenance Related Services twenty-four
(24) hours per day, seven days (7) per week. Within one (1) hour of
notification, a trained, knowledgeable, technically qualified Metawave
representative will respond. Such response will serve to acknowledge receipt of
notification and to obtain a verbal description of the nature of the need for
maintenance Related Services.
11.4 Metawave shall correct any and all errors in the Software in
accordance with this Section 12. For major errors substantially effecting
Equipment performance, Metawave shall continue error correction activity on a
twenty-four (24) hour basis until a permanent correction is made. If Metawave
determines that such errors cannot be corrected within twenty-four (24) hours,
Metawave shall immediately initiate an escalation procedure to:
(1) Immediately assign sufficient skilled personnel to correct
the error; and
(2) Immediately notify Metawave management personnel that such
error has not been corrected and that the escalation
procedure has been activated; and
(3) Metawave will provide verbal status reports on errors at
intervals of not less that twice per day to BAM on the
status of each error correction.
11.5 BAM shall provide Metawave, at the time of the notification,
data required by Metawave to properly analyze the error condition and to provide
the proper resolution.
11.6 Metawave shall give notice, on each error reported, to all BAM
locations of Software upon receipt by Metawave and error corrections will be
transmitted to all such locations.
11.7 If any Equipment furnished by Metawave hereunder experiences
non-performance periods due to malfunction of the Software, as specified below,
the credits contained herein shall apply to BAM's Software monthly maintenance
charge. If the Equipment is operating at less than fifty percent (50%) call
processing capacity (as measured by traffic usage over the previous thirty (30)
day period), (i) for any eight (8) consecutive hour period or (ii) for a period
more than twenty-four (24) hours in any thirty (30) day period, then Metawave
shall grant BAM a credit against the Software monthly maintenance charge for
each such hour in an amount of one-half (1/2) of one percent (1%) of the monthly
Software maintenance charge for such defective Equipment. A non-performance
period shall begin upon BAM's notification to Metawave and shall end when the
Equipment has achieved ninety
-44-
percent (90%) call processing capacity. BAM shall issue a debit memorandum and
associated documentation to Metawave reflecting the amount of such credit. The
Equipment non-operational periods shall be for periods of time directly caused
by the non-performance of the Software on the Equipment. Any non-performance
caused by third-party equipment or software, force majeure or other events
outside the control of Metawave shall not be counted toward non-performance
periods. If BAM receives a credit under this section, for a particular non-
performance period, then BAM is not able to receive a credit under Article III,
Section 12.
11.8 Unless requested by BAM or necessary to correct performance
failures or degradation, Metawave shall introduce maintenance releases no more
than once per calendar quarter. Such maintenance releases shall include program
code changes and revised documentation necessitated by correction of such error
condition. Maintenance releases shall include improvements and updates relating
to the Software which are developed by Metawave. Metawave shall notify BAM the
expected date of release and the error corrections or improvements to be
included.
12. SOFTWARE MAINTENANCE CHARGE
12.1. The annual charge for Software Maintenance is specified in the
Price List attached hereto as Schedule A. Metawave's Software Maintenance is
included in the purchase Price of each piece of Equipment purchased by BAM and
shall extend throughout the duration of the Warranty Period, as set forth in the
Warranty section of the Agreement. Thereafter, Software Maintenance is provided
by Metawave to BAM pursuant to the terms herein and is included in the Software
Maintenance charges set forth in Schedule A for a period of 12 months. Any
Software provided to BAM during the term of the Software Maintenance will be
provided pursuant to this Software License Agreement.
12.2 The Software maintenance charge is not subject to increase
during the first twelve months following the commencement of such charge. The
Software maintenance charge is subject to change by Metawave following the end
of such twelve (12) month period upon ninety (90) days prior written notice;
provided, however, that such Software maintenance charge shall not be increased
more than once in any twelve (12) month period and in no event shall any
increase exceed [***] of the Software maintenance charge applicable to the
preceding year, for like volumes of Equipment. The total increase for Software
Maintenance charges shall not exceed [***] for the term plus any subsequent
renewal term for like volumes not to exceed [***] per market system per year as
defined in Schedule A.
12.3 During the term of Software Maintenance, all Major Releases,
Point Releases, Software Patches and standard Features made generally available
by Metawave shall be available to BAM at no additional charge. BAM shall
promptly install such Software.
12.4 Optional Features and certain significant enhancements shall be
made available to BAM at an additional charge and are not include in the price
of Software Maintenance.
-45-
12.5 Certain optional Features shall be sold on a per-unit basis and
may have price levels that reflect unit capacity.
13. TERMINATION OF MAINTENANCE
13.1 BAM may terminate maintenance for Software by giving Metawave
thirty (30) days prior written notice.
13.2 Metawave may terminate maintenance for Software by providing one
(1) year prior notice of its intent to terminate. In such event, Metawave shall
furnish the latest version of Software object code, operating and design
documentation, training material and any other necessary information to enable
BAM to maintain and enhance such Software or to contract with others for such
work.
14. OBJECT CODE AND TECHNICAL DOCUMENTATION
In the event Metawave becomes insolvent, ceases to carry on business
on a regular basis or fails to perform its maintenance obligations herein,
Metawave shall furnish the latest version of Software object code, operating and
design documentation, training material and any other necessary information to
enable BAM to maintain and enhance such Software or to contract with others for
such work.
15. RELOCATION OF SOFTWARE
BAM may redesignate the location at which the Software will be used,
and shall notify Metawave of the new location and the effective date of the
relocation. Concurrent operation of the Software at a second location for a
period not to exceed ninety (90) days to achieve uninterrupted operation and
orderly cut over shall not require an additional license.
16. ENHANCEMENT OF SERVICES
16.1 BAM may request Metawave to make changes to the Software. Such
requests will describe in detail the changes to the Software desired by BAM.
16.2 Metawave will respond within sixty (60) days of receipt of such
request, and if the response indicates a development cost to BAM, such response
shall provide estimates of time and costs to develop the change described in the
request.
16.3 BAM, at its option, may provide Metawave authorization to
proceed with the work described in Metawave's response by placing an Order.
17. SOFTWARE EVALUATION
17.1 Metawave, at no charge, will provide new Software features and
functionality on a trial basis to allow BAM to evaluate the applicability of
such Software to its business needs and purposes.
(1) BAM shall issue an Order to Metawave in accordance with this
Agreement.
-46-
(2) The term of the evaluation shall be thirty (30) days unless
otherwise stated in the Order.
(3) BAM shall use the Software provided under this Section 18for
the sole purpose of evaluation. Use of the Software for
evaluation shall not obligate BAM to license Software for
future use.
17.2 BAM shall promptly return the Software and accompanying
documentation to Metawave upon completion of the evaluation period or shall
notify Metawave of its intent to license the Software. If BAM intends to license
such Software, BAM shall issue an Order.
17.3 BAM shall not duplicate the Software, any portion thereof, or
any associated documentation, unless necessary for the evaluation.
18. SOFTWARE VIRUS PROTECTION
18.1 Metawave represents and warrants to BAM that the Software
provided to BAM by Metawave does not contain or will not contain any Self-Help
Code or any Unauthorized Code (defined below).
18.2 As used in this Agreement, "Self-Help Code" means any back door,
"time bomb", drop dead device, or other software routine designed to disable a
computer program automatically with the passage of time or under the positive
control of a person other than a licensee of the program. Self-Help Code does
not include software routines in a computer program, if any, designed to permit
the licenser of the computer program (or other person acting by authority of the
licensor) to obtain access to a licensee's computer system(s) (e.g., remote
access via modem) for purposes of maintenance or technical support.
18.3 As used in this Agreement, "Unauthorized Code" means any virus,
Trojan horse, worm, or any other software routines or hardware components
designed to permit unauthorized access to disable, erase, or otherwise harm
software, hardware, or data or to perform any other such actions. The term
Unauthorized Code does not include Self-Help Code.
18.4 Metawave shall remove promptly any such Self-Help Code or
Unauthorized Code in the Software of which it is notified or may discover.
18.5 Metawave shall indemnify BAM against any loss or expense arising
out of any breach of this warranty.
-47-
ARTICLE V
ENTIRE AGREEMENT
1. ENTIRE AGREEMENT
1.1 This Agreement, together with all Orders, Articles, and subordinate
documents incorporated by reference and all descriptions, drawings,
specifications, and other literature published by Metawave in connection with or
in contemplation of any Order or of this Agreement shall constitute the entire
agreement between the Parties with respect to the subject matter.
1.2 This Agreement may not be modified except by an instrument in writing
signed by a duly authorized representative of each of the Parties.
2. SIGNATURES
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed by their duly authorized officers or representatives.
Cellco Partnership Metawave Communications Corporation
by Xxxx Atlantic Mobile, Inc.
its managing general partner
/s/ Xxxxxxx X. Xxxxx /s/ Xxxxxx X. Xxxxxxxxxx
By:______________________________ By:______________________________
Xxxxxx X. Xxxxxxxxxx
Xxxxxxx X. Xxxxx Name:____________________________
President and CEO
Executive VP & CTO Title:___________________________
12/16/1999 12/20/1999
Date:_____________________________ Date:____________________________
-48-
Schedule A
1. Product Pricing Summary
The prices shown below are fixed and net of all discounts. They are in
consideration of BAM's commitment and are applicable up to 200 SpotLight
Systems.
[***]
-49-
[***]
-50-
