ALLIANCE AGREEMENT
This is an Alliance Agreement ("Agreement"), effective September 20, 2000 (the
"Effective Date") by and between Lucent Technologies Inc. ("Lucent"), a
corporation organized and existing under the laws of the State of Delaware,
United States of America ("US"), and having an office at 00 Xxxxxxxx Xxxx,
Xxxxxxxx, XX, 00000, XX, and Net2Wireless Corporation ("N2W"), a corporation
organized and existing under the laws of the State of Delaware, US and having an
office at 00 Xxxxxx Xxxxxx, Xxxx Xxxx, Xxxx Xxxxxx 00000, Xxxxxx. Each of the
foregoing entities shall be deemed a "Party" and collectively, the "Parties".
RECITALS
Whereas, Lucent is in the business of designing, developing,
manufacturing, selling, installing, and licensing wireless network equipment and
software for the operation of wireless communications systems on a worldwide
basis; and
Whereas, N2W is in the business of designing, developing,
manufacturing, selling, installing, and licensing wireless switching equipment
and software for the operation of wireless data applications and of providing
data applications for value added services; and
Whereas, N2W's Products (as defined below) may be useful to Lucent
customers who have purchased or may purchase Lucent's wireless network equipment
or software; and
Whereas, Lucent desires to have an arrangement with N2W pursuant to
which Lucent may refer existing and potential Lucent customers to N2W and
facilitate N2W's sales of such services to said customers, and N2W is willing to
enter into such an arrangement;
NOW, THEREFORE, in consideration of the promises and mutual covenants
contained herein and for other good and valuable considerations, the receipt and
sufficiency of which are hereby mutually acknowledged, the parties hereto agree
as follows:
AGREEMENT
1.0 HEADINGS AND DEFINITIONS
1.1 All headings used in this Agreement are inserted for convenience
only and are not intended to affect the meaning or interpretation of this
Agreement or any Article or section. For the purpose of this Agreement, the
following definitions will apply:
(a) "Advertising" means all advertising, sales promotion, press
releases, and other publicity matters relating to this
Agreement or any performance under this Agreement;
(b) "Affiliate" of a corporation means its Subsidiaries, any
company of which it is a Subsidiary, and other Subsidiaries of
such company;
(c) "Collateral Material" means data sheets, applications briefs,
presentation brochures and other advertising or promotional
materials that are not
designated as confidential by N2W and are distributed in the
normal course of business to assist in the marketing of
Products;
(d) "Documentation" means all technical, repair, marketing and end
user documentation that is designated as confidential by N2W
and usually made available by N2W to its customers or
potential customers, subject to Non-Disclosure obligations, in
a form substantially similar to the Non-Disclosure Agreement
executed between the Parties, having an effective date of June
15, 2000, to inform or instruct its customers in the
description, features and function, installation, operation
and maintenance of Products;
(e) "Exhibits" means the documents attached hereto and
incorporated by this reference, as they may be amended from
time to time by written agreement of the Parties. Exhibits
include, without limitation, the following:
Exhibit A - Product Description and List Price Information
Exhibit B - Restricted N2W Account(s) and Registered
Lucent Account(s) Matrix
Exhibit C - Sales Referral Procedure
Exhibit D - Commission Percentage
(f) "Force Majeure" means fires, strikes, riots, embargoes,
explosions, earthquakes, floods, wars, threat of war, warlike
conditions, hostilities, sanctions, blockade, water, the
elements, labor disputes, government requirements, civil or
military authorities, acts of God or by the public enemy,
inability to secure raw materials or transportation
facilities, acts or omissions of carriers or suppliers, or
other causes beyond a Party's control whether or not similar
to the foregoing which shall have a material adverse effect on
the performance of the obligations of the respected Party;
(g) "Information" means any specifications, designs, plans,
drawings, software, data, prototypes, business and/or
technical information in whatever form recorded or unrecorded.
(h) "Lucent Customer(s)" means individually or collectively, as
applicable, all carriers, service providers, and operators of
Wireless Network Equipment: (i) to whom Lucent has sold Lucent
Wireless Network Equipment and to which customers desire to
add N2W's Products, (ii) who have issued a tender, bid
request, or proposal request or similar request for vendor
response to Lucent and not to N2W, and Lucent's response may
include Products or (iii) to whom Lucent may be submitting
unsolicited proposals for Lucent Wireless Network Equipment
and/or Products;
(i) "Lucent Customer Service Area" means a geographical area, as
defined by a Lucent Customer, in which the Lucent Customer has
been authorized to operate Wireless Network Equipment, and in
which the Lucent Customer is using Lucent Wireless Network
Equipment. At any specific time a Lucent Customer may operate
in more than one such area, not all of which are equipped with
Lucent Wireless Network Equipment;
(j) "Lucent's Wireless Innovations Lab(SM)" means those Lucent
testing facilities which are designed test wireless
technologies with Lucent Wireless Network Equipment.
(k) "Products" means, collectively, N2W's 3GateTM system
identified in Exhibit A, as it may exist from time to time;
(l) "Registered Lucent Account(s)" means those Lucent Customers or
Lucent Customer Service Areas which have been referred to and
accepted by N2W as provided in Article 3.0, SCOPE OF
AGREEMENT/IDENTIFICATION OF ACCOUNTS, of this Agreement. A
Registered Lucent Account(s) List will be created and updated
by Lucent and N2W during the term of this Agreement. The
initial list of Registered Lucent Account(s), if any, is set
forth on Exhibit C. Additions and deletions will be made to
the Registered Lucent Account(s) List from time to time in
writing by mutual agreement of Lucent and N2W, to maintain
currency of such list;
(m) "Restricted N2W Account(s)" means those Lucent Customers or
Lucent Customer Service Areas for which N2W can demonstrate
that such Lucent Customer or Lucent Customer Service Area has
previously purchased Products, or with whom N2W can
demonstrate that it is independently pursuing a sales
opportunity directly. A Restricted N2W Account(s) List will be
maintained by Lucent and N2W during the term of this
Agreement. The initial list of Restricted N2W Account(s), if
any, is set forth on Exhibit B. Additions and deletions will
be made to the Restricted N2W Account(s) from time to time in
writing by mutual agreement of Lucent and N2W, to maintain
currency of such list;
(n) "Subsidiary" of a company means a corporation the majority of
whose shares or other securities entitled to vote for election
of directors is now or hereafter owned or controlled by such
Party either directly or indirectly; but any such corporation
shall be deemed to be a Subsidiary of such Party only as long
as such ownership or control exists; and
(o) "Wireless Network Equipment" means equipment and/or software,
typically involving, but not necessarily so, switching
equipment and cell site radio equipment, used by providers of
telecommunications services, as authorized by the responsible
governmental agency, to furnish to the public those wireless
services generally described as cellular services and personal
communications services (but not fixed wireless or wireless
access services) utilizing any one or more of the technologies
currently known as analog, Code Division Multiple Access, Time
Division Multiple Access, Cellular Digital Packet Data and
other technologies as they may, from time to time, be utilized
to provide such services to the public, and including the
technologies known as Global Systems Mobile Communications and
Universal Mobile Telecommunications System.
2.0 TERM OF AGREEMENT
2.1 This Agreement shall be effective on the date written above and, except as
otherwise provided herein, shall continue in effect for a term of forty-two (42)
months or until (a) earlier terminated pursuant to the terms hereof, or (b)
extended or superseded by a written amendment to this Agreement or a subsequent
written agreement mutually agreed upon by the Parties. Notwithstanding any such
expiration or termination, Lucent shall be entitled to commissions to the full
extent set forth herein with respect to transfers of Products by N2W to
Registered Lucent Accounts referred by Lucent and accepted by N2W pursuant to
the terms of this Agreement prior to the effectiveness of such expiration or
termination.
3.0 SCOPE OF AGREEMENT/IDENTIFICATION OF ACCOUNTS
3.1 This Agreement is not intended to establish an exclusive relationship.
Nothing in this Agreement shall be construed as limiting, in any manner, N2W's
marketing or distribution activities or its appointment of other dealers,
distributors, licensees or agents, provided that in engaging in such activities
or appointments, N2W and its other dealers, distributors, licensees or agents do
not violate N2W's obligations to Lucent as set out in this Agreement. Nothing in
this Agreement shall be construed as limiting, in any manner, Lucent's pursuit
of, negotiation with, and establishment of sales referral agreements or other
arrangements with other companies, or to market its own products or those of
other third parties to Lucent Customers even though such products may be
comparable to Products. N2W acknowledges that nothing herein shall be deemed to
bar Lucent from proposing to the same Lucent Customer, at the same time that it
is referring Products, the products of one or more other suppliers, including
Lucent. N2W further acknowledges that Lucent markets through its own sales
personnel and through its Affiliates and that the right of Lucent to refer
Lucent Customers to N2W, and to receive sales referral commissions in respect of
transfers of Products to Registered Lucent Accounts, as set out in Article 6.0,
COMMISSION, shall apply to Lucent and such Affiliates. As used herein, the term
Lucent shall include such Affiliates unless the context otherwise requires.
3.2 Lucent has the right to market its Wireless Network Equipment worldwide. In
the course of such marketing, Lucent may identify Lucent Customers as sales
opportunities for Products. When Lucent sales teams have done so, they are
authorized to provide Lucent Customers with a high level product description of
and Collateral Material for such Products. Either prior to or after providing
such description, Lucent may refer Lucent Customers to N2W as specified in
Exhibit C. Each Lucent Customer referred to N2W and accepted by N2W pursuant to
such procedure shall, to the extent of such acceptance, become a Registered
Lucent Account.
In the case where the Lucent Customer requests a single vendor of
products which are comparable to N2W's Products in its request for proposal
and/or Lucent determines that N2W provides the best opportunity for Lucent
Customer satisfaction and such Lucent Customer is referred to and accepted by
N2W as a Registered Lucent Account, Lucent agrees that it will not seek bids
from other vendors of products which are competitive with N2W's Products for
that Registered Lucent Account until such time as the Registered Lucent Account
rejects the N2W proposal.
3.3 Notwithstanding the provisions above, N2W shall have the sole discretion to
either accept or reject each referral of a Lucent Customer or Lucent Customer
Service Area within seven (7) business days. In the event N2W rejects a certain
referral of a Lucent Customer, N2W will state whether the reason for rejection
of a Lucent Customer referral is:
(a) the Lucent Customer or Lucent Customer Service Area is a
Restricted N2W Account; or,
(b) any other reason.
In the event N2W rejects a Lucent Customer referral for reason (a)
above, N2W will be able to pursue that account directly without Lucent's
approval. In the event N2W rejects a Lucent Customer referral for any reason
other than (a) above, N2W agrees it will not pursue that Lucent Customer
directly for a period of one (1) year after its rejection. In the event that N2W
does not respond to Lucent within seven(7) business days to accept or reject the
Lucent Customer referral, for purposes hereof it will be assumed that N2W has
accepted the referral and the referred Lucent Customer or Lucent Customer
Service Area shall be deemed a Registered Lucent Account.
3.4 When requested by Lucent, and as mutually agreed, N2W personnel shall
accompany Lucent's personnel on visits to Registered Lucent Accounts and provide
necessary materials to be used in N2W's sales and technical presentations to
such customers, and otherwise take affirmative steps intended to cause such
customers to purchase Products.
3.5 In the event that the parties shall mutually agree that a Registered Lucent
Account should no longer be considered such, effective with the date of such
agreement, the Lucent Customer or Lucent Customer Service Area involved shall no
longer be deemed a Registered Lucent Account and N2W will then, at its sole
discretion, be able to pursue that account directly or through another
distribution channel without owing any commission or other such payments to
Lucent, provided, however, that nothing herein shall be deemed to excuse N2W's
obligation under Article 6.0, COMMISSION to pay commissions in respect of
Products or additional growth, upgrades and new features furnished by N2W for
Products transferred to the Lucent Customer or Lucent Customer Service Area
pursuant to arrangements entered into prior to the time the Lucent Customer or
Lucent Customer Service Area ceases to be a Registered Lucent Account.
4.0 RELATIONSHIP OF THE PARTIES
4.1 The relationship of the Parties under this Agreement shall be and at all
times remain one of a referral sales arrangement for the purpose of providing
Lucent Customers, at their discretion, with an integrated technology and
application solution. Each Party shall employ its own personnel and shall be
solely responsible for their acts and be responsible for payment of all
unemployment, Social Security, and other payroll taxes, including contributions
required by law.
4.2 No director, officer, employee, consultant or agent of either Party hereto
or their respective Affiliates shall at any time be deemed to be a director,
officer, employee, consultant or agent of the other Party for any purpose
whatsoever, and the Parties shall use commercially reasonable efforts to prevent
any such misrepresentation. Nothing in this Agreement shall be deemed to create
any joint venture, partnership, or principal-agent
relationship between N2W and Lucent, and neither Party shall hold itself out in
its advertising or in any other manner which would indicate any such
relationship with the other. N2W shall at all times be considered an independent
contractor for the purposes of providing Products to Lucent's Customers.
5.0 LUCENT'S RESPONSIBILITIES
5.1 Lucent shall be responsible for sales support to N2W by providing access to
Registered Lucent Account teams for training and will coordinate and arrange
training sessions; for providing Lucent Customer lead generation and
introduction to Registered Lucent Account; and, when mutually agreed, for
providing consultation on bids and proposals. Lucent will provide a Relationship
Manager and Lucent representative(s) will participate in joint visits to
Registered Lucent Accounts, as and when mutually agreed.
6.0 COMMISSION
6.1 N2W shall pay Lucent a commission (the "Commission") on all transfers
(including, but not limited to, sales, leases, and licenses) of Products (and
related services) to a Registered Lucent Account. The "Commission Percentage" is
defined in Exhibit D to this Agreement.
6.2 The Commission Percentage shall be applied to the Net Invoice Amount for
Product(s), including any additional growth, upgrades, new features, or
additional systems, and including all related engineering, installation, post
warranty support, enhanced warranty support, and any other associated services,
but not including any sales or use taxes, import duties, transportation, freight
or shipping charges, ordered by the Registered Lucent Account, for three (3)
years from the date of the last contract executed by N2W with the Registered
Lucent Account or purchase order issued by such customer and accepted by N2W
during the term of this Agreement. For the purpose of this Article, the term
"Net Invoice Amount" means the net amount billed by N2W, after accounting for
any applicable normal discounts and returns (but not credits or other
adjustments for N2W delays or other faults, including liquidated or agreed
damages).
6.3 Such Commission shall be paid within thirty (30) days after receipt of
payment by N2W from the Registered Lucent Account.
6.4 Notwithstanding the foregoing, with respect to a resale described in
Paragraph 7.6, the "Net Invoice Amount" shall refer to the amount billed by N2W
to Lucent, not the amount billed by Lucent to the Lucent Customer to whom Lucent
resells Products. Further, as a matter of clarification, Commissions on resales
shall be paid to Lucent within thirty (30) days after receipt by N2W of payments
for Products from Lucent.
7.0 PROPOSALS, CONTRACTS AND ORDERS
7.1 N2W will provide to Lucent, at least five (5) business days prior to such
presentation, a copy of each sales proposal to be made by N2W to any Registered
Lucent Account. N2W will consider in good faith to incorporate in its proposal
any changes reasonably requested by Lucent. N2W will present the sales proposal
directly to the Registered Lucent Account.
7.2 When a Lucent Customer issues tenders, bid requests, or proposal requests to
Lucent and Lucent desires N2W to assist in a response that includes Products,
N2W will, if it has accepted or then accepts the Lucent Customer or Lucent
Customer Service Area as a Registered Lucent Account, provide appropriate
personnel and support to work cooperatively with Lucent in providing proposals.
Lucent personnel will take the leadership role in the preparation and
coordination of the response and will be responsible for that portion of the
proposal, if any, involving Lucent Wireless Network Equipment. N2W will assume
responsibility for preparation of that portion of the response involving
Products.
7.3 N2W will contract directly with Registered Lucent Accounts for the sale of
Products, including invoicing and collections, warranty support, post warranty
support, complete technical support, engineering and installation services,
growth on initial sales, product upgrades, etc., all subject to N2W's applicable
charges or price quotation. For use by Lucent in determining whether to refer
Products to a Lucent Customer, N2W shall keep Lucent informed of N2W's list
prices for Products, as they may exist from time to time during the term of this
Agreement. All orders for Products and related services shall be submitted
directly to N2W by Registered Lucent Accounts.
7.4 Lucent shall not have any liability or obligation with regard to such
contracts entered into by N2W or orders submitted by Lucent Customers and Lucent
Customer Service Areas to N2W pursuant to such contracts or otherwise.
7.5 N2W acknowledges that Lucent Customers and Lucent Customer Service Areas may
from time to time pose to Lucent problems or other matters that relate to
Products furnished to them by N2W. Unless the Parties otherwise agree in
writing, which such writing shall address the compensation to which Lucent shall
be entitled for any additional services that the Parties agree that Lucent will
perform, all such problems and other matters shall be referred by Lucent to N2W.
Promptly upon execution of this Agreement, and as necessary through out the term
of this Agreement, N2W will provide Lucent with the current telephone number or
other manner of communicating with N2W for referral of such problems and other
matters to N2W, on a twenty-four (24) hour per day, seven (7) day per week,
basis. Upon referral of a problem by Lucent, N2W shall promptly confirm in
writing an acknowledgment of its receipt thereof and promptly work to solve the
problem. Upon resolution of any referred problem, N2W shall furnish notice to
Lucent in writing a description of the actions taken to clear the problem and
the date the problem was cleared.
7.6 Notwithstanding the foregoing, the parties acknowledge that from time to
time, a Registered Lucent Account may require that Lucent act as the prime
contractor in the provision of Products (the "project"), in which case, the
Products will be passed through Lucent to the account (a "resale"). Any prime
contractor - subcontractor arrangement shall be the subject of a separate
written agreement between Lucent and N2W. Unless otherwise requested by Lucent,
such agreement shall be negotiated with the Lucent Customer Team responsible for
the project, and shall include terms and conditions typical to such an
arrangement, including, but not limited to, terms related to invoicing and
payment, engineering and installation services, warranty support, post warranty
support, growth on initial sales, and product upgrades, provided, however, that
these terms shall be no less favorable to N2W than those offered by N2W under a
direct sale to a Registered Lucent
Account. Lucent shall be entitled to Commission in such circumstances, as if the
transaction between Lucent and its account had been between N2W and a Registered
Lucent Account.
8.0 AUDIT
8.1 N2W shall maintain accurate and complete records of all transactions with
Registered Lucent Accounts for which payment of a sales referral commission may
be owed to Lucent under this Agreement. Such records shall be maintained in
accordance with recognized commercial accounting practices so they may be
readily audited and shall be held until at least the later of (i) one (1)
calendar year after the sales referral commission(s) for all such transactions
have been finally determined under this Agreement and payment or final
adjustment of payment, as the case may be, has been made by N2W, or (ii) one (1)
calendar year after the termination, cancellation or expiration of this
Agreement. N2W shall permit Lucent to examine and audit these records once every
calendar quarter during business hours and provided Lucent has coordinated the
date of such audit at least twenty one (21) days in advance. N2W shall not be
required to allow any such audits after the end of the record retention period
set out above.
8.2 N2W shall provide a statement on a quarterly basis of all transactions with
Registered Lucent Accounts and all Net Invoice Amounts (as described in Article
6.0, COMMISSION) applicable thereto, the date(s) of invoices reflecting such
amounts, the amount(s) of payment(s) received from Registered Lucent Accounts in
respect of such invoices, and the date(s) of such receipt by N2W. This statement
shall be sent to the Lucent contact specified in Article 22, NOTICES.
8.3 In the event that Lucent exercises its right to audit and Lucent reasonably
determines that N2W owes commissions pursuant to Article 6.0, COMMISSION, that
were not paid, N2W will immediately pay to Lucent those amounts not paid,
provided, however, that in the event that N2W disputes such finding the matter
will be resolved pursuant to Article 15.0 DISPUTE RESOLUTION.
9.0 INTEROPERABILITY TESTING
9.1 Prior to any sales referral activity between Lucent and N2W for any Product,
such Product must have completed successful interoperability testing at Lucent's
Wireless Innovation LabSM testing facility and satisfy all requirements of
interoperability. N2W representatives will attend and accompany the testing.
Except as the Parties may otherwise agree in writing, such testing shall be
performed pursuant to a separate written agreement setting forth Lucent's
standard terms and conditions and charges for such testing, as they exist from
time to time. When a Product previously successfully tested is modified and/or
changed in any way that might render the previous test results invalid or
uncertain, N2W must inform Lucent and such Product must repeat interoperability
testing to validate that the modifications and/or changes do not compromise
interoperability status.
9.2 If Lucent Wireless Network Equipment undergoes modification and/or change,
Lucent will notify N2W. Each impacted Product must repeat interoperability
testing, if Lucent determines that the modifications and/or changes could
compromise interoperability status of such Product.
10.0 TRAINING
10.1 N2W will, at Lucent's request and without charge, provide training in the
features, target markets, selling strategies, and technical aspects of Products
for Lucent's personnel such that said personnel will be able to effectively
identify sales opportunities for Products. The Parties will mutually agree on
the level of training required. Training courses may be delivered via
teleconference training, computer based training, video, video teleconference,
or seminar at a mutually agreeable location. The Parties will mutually agree on
the delivery method and the training materials required.
10.2 N2W shall provide each Lucent attendee, at no charge, a complete set of
available training materials, handouts and associated materials pertaining to
Products. Lucent personnel shall not copy or distribute any such training
materials without the prior written permission of N2W.
11.0 COORDINATION OF INSTALLATION AND ACCEPTANCE
11.1 The Parties will integrate, whenever possible, their installation plans to
satisfy requirements of Registered Lucent Accounts to whom they have marketed
their respective products or Products. The Parties will also make reasonable
efforts to cooperate in preparing acceptance criteria and plans that will
satisfy those customers' interest in ensuring that Lucent Wireless Network
Equipment and Products work together as an integrated system.
12.0 FEDERAL COMMUNICATIONS COMMISSION (FCC) REGISTRATION
12.1 When a Product furnished by N2W to Lucent Customers is subject to Part 2,
Part 15, Part 22, Part 68, or any other part of the FCC's Rules and Regulations,
as amended from time to time, N2W, to the best of its knowledge, warrants to
Lucent and will warrant to Lucent Customers and Lucent Customer Service Areas
that such Product complies with the registration, certification, type
acceptance, and/or verification standards of the FCC's Rules and Regulations,
including but not limited to, all labeling and customer instruction
requirements, and the suppression of radiation to specified levels. N2W shall
establish periodic on-going compliance re-testing and follow a quality control
program to assure that Products furnished to Lucent Customers and Lucent
Customer Service Areas will comply with the applicable FCC Rules and
Regulations. Lucent shall be under no obligation to offer N2W Products which
will not comply with the applicable FCC Rules and Regulations.
12.2 In addition, should any Product, which is subject to Part 15 of the FCC
Rules and Regulations, during use generate harmful interference to radio
communications, N2W shall provide Lucent and the impacted Lucent Customers and
Lucent Customer Service Areas with information relating to methods of
suppressing such interference.
13.0 SAFETY CERTIFICATION
13.1 N2W, to the best of its knowledge, warrants to Lucent and will warrant to
Lucent Customers and Lucent Customer Service Areas that Products furnished to
them will comply with the applicable Underwriters Laboratories (UL), Canadian
Standards Association (CSA), and other international standards and regulations.
Upon request of Lucent from time to time during the term of this Agreement, and
at no charge to Lucent, N2W will provide Lucent a
certification in writing by an authorized officer of N2W, that each Product is
in compliance with such standards and regulations as are applicable. N2W shall
be responsible for bringing Products into compliance and maintaining compliance
with said UL, CSA, and international standards and regulations. Lucent shall not
be under any obligation to offer N2W Products which will not comply with such
applicable UL, CSA and international standards and regulations.
14.0 APPLICABLE LAW/UNIFORM LAWS NOT APPLICABLE
14.1 The construction and interpretation of, and the rights and obligations of
the Parties pursuant to this Agreement shall be governed by the laws (other than
its conflict of law rules) of the State of New York, United States. The uniform
laws drawn up pursuant to the Diplomatic Conference on Unification of Law
governing the International Sale of Goods held at the Hague in 1964 (and any
successor thereto), whether or not adopted anywhere, shall not apply to this
Agreement or any order issued hereunder. The stipulations concerning the United
Nations Convention on Contracts for the International Sale of Goods held at
Vienna in 1980 shall not apply to this Agreement.
15.0 DISPUTE RESOLUTION
15.1 The Parties agree to attempt in good faith to resolve any dispute regarding
any right, obligation, duty or liability arising out of the provisions of this
Agreement, including its breach.
15.2 If a dispute is not resolved by such attempt, such dispute shall be
resolved by arbitration in the English language before a single arbitrator in
Xxx Xxxx Xxxx, Xxx Xxxx, Xxxxxx Xxxxxx, pursuant to this clause and the then
current American Arbitration Association ("AAA") rules. The arbitrator shall be
knowledgeable in commercial business transactions and wireless technology and
acceptable to both parties. The arbitrator's decision and award shall be final
and binding and may be entered in any court having jurisdiction thereof. The
arbitrator shall not have the power to award punitive or exemplary damages. Each
Party shall bear its own attorney's fees associated with any arbitration
instituted hereunder and other costs shall be borne as provided by the
applicable AAA rules. The arbitrator, Parties, their representatives and other
participants shall hold the existence, content and result or award in
confidence.
15.3 The procedures specified in this clause shall be the sole and exclusive
procedures for the resolution of disputes arising out of or relating to this
Agreement provided, however, nothing herein shall be deemed to require
arbitration of matters not arbitrable under applicable law, or prohibit a Party
from seeking a preliminary injunction or other preliminary judicial relief if in
such Party's reasonable judgment such action is necessary to avoid irreparable
damage. Despite any such action, the parties will continue to participate in
good faith in the procedures specified herein. All applicable statutes of
limitation shall be tolled while the procedures specified herein are pending,
and nothing herein shall be deemed to bar any Party from taking such action as
may be required to effectuate such tolling.
16.0 ASSIGNMENT AND SUBCONTRACTING
16.1 Neither Party shall assign any right or interest under this Agreement or
delegate or subcontract any obligation to be performed or owed under this
Agreement without the prior written consent of the other Party, which consent
shall not be unreasonably withheld, delayed, or qualified. Any attempted
assignment, delegation or subcontracting in contravention of the above
provisions shall be void and ineffective. In the event that a majority or
greater of the issued and outstanding stock of either Party changes control in
one or a series of related transactions, such event shall not constitute an
assignment.
16.2 Either Party may assign this Agreement to an Affiliate without the consent
of the other Party, provided that 1) the assignment is not to a competitor of
either Party, and 2) the assigning Party shall remain liable for and will
guarantee its assign's performance, including payment of monies, under this
Agreement. Lucent, without N2W's consent, may assign its right to receive
payments hereunder. Each Party shall promptly notify the other Party, in
writing, of any such permitted assignment.
16.3 Nothing herein shall preclude a Party from employing a subcontractor in
carrying out its obligations under this Agreement. A Party's use of such
subcontractor shall not release the Party from its obligations under this
Agreement.
17.0 COLLATERAL MATERIAL
17.1 Within ten (10) business days of the full execution of this Agreement, N2W
will, without charge to Lucent, furnish to the Lucent Alliance Manager listed in
Exhibit C, Collateral Material about Products which N2W makes available to its
own customers or its own sales force in sufficient number, for Lucent to
commence its activities under this Agreement. From time to time during the term
of this Agreement, upon reasonable request of Lucent, N2W will provide
additional copies of then current Collateral Material. N2W will promptly inform
Lucent of any changes to the Collateral Material. Lucent shall have the right to
make reasonable numbers of copies of Collateral Material in any form for use in
accordance with its rights under this Agreement.
18.0 ENGLISH LANGUAGE
18.1 This Agreement has been prepared and executed in the English language which
will be the controlling language for all purposes of this Agreement.
19.0 EXPORT CONTROL
19.1 Each Party acknowledges that the Information and other items (including but
not limited to, any services and training) provided under this Agreement are
subject to US export and re-export laws and regulations and any use or transfer
of such Information and other items must be authorized under those regulations.
Each Party agrees that it will not use, distribute, transfer, or transmit the
Information, and other items (even if incorporated into other materials) except
in compliance with US export regulations. If requested by a Party, the other
Party also agrees to sign written assurances and other export-related documents
as may be required for the requesting Party to comply with US export
regulations.
19.2 Each Party further agrees that it shall not transfer or transmit
Information or other items received under this Agreement (even if incorporated
into other material) to any country outside of the US or Canada or Israel
without the prior written consent of the disclosing Party.
20.0 FORCE MAJEURE
20.1 Neither Lucent nor N2W shall be held responsible for any delay or failure
in performance to the extent that such delay or failure is caused by a Force
Majeure. Each such Party shall notify the other such Party within thirty (30)
days of the occurrence of a Force Majeure. If any Force Majeure occurs and
results in a delay or failure in performance, the Parties may mutually agree to
resume performance once the Force Majeure ceases with an option for the injured
Party to extend the performance date up to the length of time the Force Majeure
endured. Unless written notice is given within thirty (30) days after such
injured Party is apprised of the occurrence of a Force Majeure, the
aforementioned option shall be deemed selected. Nothing contained herein or
elsewhere shall impose any obligation on either Party to settle any labor
difficulty.
21.0 NON-WAIVER
21.1 No waiver of the terms and conditions of this Agreement, or the failure of
any Party strictly to enforce any such term or condition on one or more
occasions shall be construed as a waiver of the same or of any other term or
condition of this Agreement on any other occasion.
22.0 NOTICES
22.1 All notices under this Agreement shall be in writing (except where
otherwise stated) and shall be addressed to the addresses set forth below or to
such other address as either Party may designate by notice pursuant hereto. Such
notices shall be deemed to have been given when delivered by hand or sent
prepaid by reputable international courier service, facsimile or electronic mail
to such applicable address.
Lucent: Xxxxxx Xxxxxx Xxxxxxxxx
000 Xxxx Xxxxx Xxxxxx
Xxxxx, XX 00000
Tel.#: (000) 000-0000
N2W: Net2Wireless Corporation
00 Xxxxxx Xxxxxx
Xxxx Xxxx
Xxxx Xxxxxx 00000
Xxxxxx
Attn.: Xxxxx Xxxxx, General Counsel
Fax #: (+)000-0-0000000
23. PUBLICATION OF AGREEMENT
23.1 The Parties shall keep the provisions of this Agreement submitted hereunder
confidential except as reasonably necessary for performance hereunder or in
connection with any prospective assignments of rights and/or duties hereunder,
and except to the extent disclosure may be required by applicable laws or
regulations, in which latter case, the Party required to make such disclosure
shall promptly inform the other Party prior to such disclosure in sufficient
time to enable each such other Party to make known any objections it may have to
such disclosure, and to take all reasonable steps to secure a protective order
or otherwise assure that the Agreement or order will be withheld from the public
record, provided, however, that the above shall not apply in the event such
disclosure is required under applicable securities law and regulations.
24.0 PUBLICITY
24.1 A Party shall submit to the other proposed copy of all Advertising wherein
the name, trademark, code, specification or service xxxx of another Party or its
Affiliates is mentioned; and no Party shall publish or use such Advertising
without the other's prior written approval.
25.0 RELEASES VOID
25.1 Neither Party shall require (i) waivers or releases of any personal rights
or (ii) execution of documents which conflict with the terms of this Agreement,
from employees, agents, representatives or customers of the other in connection
with visits to its premises and both Parties agree that no such releases,
waivers or documents shall be pleaded by them or third persons in any action or
proceeding.
26.0 RIGHT OF ACCESS
26.1 Each Party shall provide the other such access to its premises and
facilities as is reasonably required in connection with the performance of their
respective obligations under this Agreement. No charge shall be made for such
access. Reasonable prior notification will be given when access is required.
Neither Party shall require releases of any personal rights in connection with
visits to its premises.
27.0 SEVERABILITY
27.1 If any provision in this Agreement shall be held to be invalid or
unenforceable, the remaining portions shall remain in effect. In the event such
invalid or unenforceable provision is considered an essential element of this
Agreement, Lucent and N2W shall promptly negotiate a replacement provision.
28.0 SURVIVAL OF OBLIGATIONS
28.1 The Parties' rights and obligations which, by their nature, would continue
beyond the termination, cancellation, or expiration of this Agreement, shall
survive such termination, cancellation, or expiration.
29.0 TERMINATION OF AGREEMENT FOR CAUSE
29.1 This Agreement may be terminated by either Party upon the failure of the
other Party to cure any material default following written notice and
opportunity of thirty (30) days to cure, provided, however, that either Party
will have the right to terminate this Agreement immediately upon notice to the
other Party in the following circumstances:
(i) If the other Party becomes insolvent or unable to pay its
debts in the ordinary course of its business;
(ii) If a voluntary petition under applicable bankruptcy laws is
filed by or against the other Party;
(iii) If a receiver is appointed for the business affairs of the
other Party or the other Party makes an assignment for the
benefit of creditors;
(iv) If the other Party liquidates or ceases doing business as a
going concern; or
(v) If N2W fails to maintain interoperability compatibility.
30.0 CONDUCT UPON TERMINATION OR EXPIRATION
30.1 In the event this Agreement is not renewed or is terminated, then the
following shall occur, unless the Parties otherwise agree in writing:
(i) Any use of the other Party's marks, use of Collateral
Material, and marketing efforts by Lucent, not previously
commenced, shall terminate on the effective date of
termination or expiration;
(ii) Both parties will honor the terms and conditions of joint or
coordinated proposals submitted to Registered Lucent Accounts
prior to the termination or expiration date. All work on
proposals including Products not yet submitted shall cease.
N2W shall continue to honor all contracts it has executed with
Registered Lucent Accounts;
(iii) N2W shall pay Lucent all amounts then currently owed but not
previously paid to Lucent. N2W will also pay, when they become
due, all amounts which it will owe to Lucent in the future in
accordance with Article 6.0, COMMISSION; and
(iv) Neither Party shall have any liability to the other Party for
damages of any kind, including incidental or consequential
damages, on account of such termination or expiration of this
Agreement. Without limiting the generality of the foregoing,
neither Party shall be liable to the other Party on account of
such termination or expiration for reimbursement or damages
for the loss of goodwill, prospective profits or anticipated
sales, or on account of any expenditures, investment, leases
or commitments made by such Parties or for any reason
whatsoever based upon or growing out of such termination or
expiration, except as provided in paragraph (iii) herein.
31.0 USE OF INFORMATION
31.1 All Information which bears a legend or notice restricting its use, copying
or dissemination, shall remain the property of the furnishing Party and shall be
subject to the provisions of this Article. The furnishing Party grants the
receiving Party the right to use such Information only as follows. Such
Information (1) shall not be reproduced or copied, in whole or part, except for
use as authorized in this Agreement; and (2) shall, together with any full or
partial copies thereof, be returned or destroyed when no longer needed. Unless
the furnishing Party consents in writing, such Information, except for that
part, if any, which is known to the receiving Party free of any confidential
obligation, or which becomes generally known to the public through acts not
attributable to the receiving Party, shall be held in confidence by the
receiving Party. The receiving Party may disclose such Information to other
persons, upon the furnishing Party's prior written authorization, but solely to
perform acts which this clause expressly authorizes the receiving Party to
perform itself and further provided such other person agrees in writing (a copy
of which writing will be provided to the furnishing Party at its request) to the
same conditions respecting use of Information contained in this Article and to
any other reasonable conditions requested by the furnishing Party. Nothing
herein shall be deemed to prevent the receiving Party from disclosing the
Information in response to legal process under applicable law, provided that the
receiving Party (i) takes all reasonable steps available to keep the Information
from the public record, and (ii) promptly notifies the furnishing Party of such
process prior to disclosure so that the furnishing Party may seek an appropriate
protective order and/or waive compliance with the terms hereof.
31.2 N2W acknowledges that Lucent is likely to provide to N2W information about
Lucent Customers in connection with the Parties' cooperation under this
Agreement. N2W understands that all such customer information, including, but
not limited to, names, addresses, telephone numbers, and telecommunications
needs, is confidential to Lucent whether or not available publicly, and whether
or not marked as confidential, and shall be treated in accordance with the
requirements of this article. N2W agrees that such customer information will
only be used to perform services for Lucent Customers pursuant to a contract
with the relevant Lucent Customer, or in connection with the Parties'
cooperation under this Agreement, and will not be used for any other purpose,
including the solicitation or servicing of Lucent Customers or prospective
customers, except as expressly authorized in writing by Lucent.
32.0 LIMITATION OF LIABILITY
32.1 NEITHER PARTY, NOR ITS AFFILIATES, NOR THE DIRECTORS, OFFICERS, EMPLOYEES,
AGENTS, REPRESENTATIVES, SUCCESSORS OR ASSIGNS OF SUCH PARTY OR ITS AFFILIATES,
SHALL IN ANY EVENT BE LIABLE TO THE OTHER PARTY (INCLUDING HEREIN ITS
AFFILIATES) OR TO ANY OTHER COMPANY OR ENTITY FOR ANY INCIDENTAL, CONSEQUENTIAL,
OR ANY OTHER INDIRECT LOSS OR DAMAGE ARISING OUT OF THIS AGREEMENT OR ANY
OBLIGATION RESULTING THEREFROM, WHETHER IN AN ACTION FOR OR ARISING OUT OF
BREACH OF CONTRACT, FOR TORT, OR ANY OTHER CAUSE OF ACTION, EXCEPT WHERE SUCH
LOSS ARISES FROM BREACH OF A PARTY'S OBLIGATION SET OUT IN ARTICLE 31, "USE OF
INFORMATION". EACH PARTY'S ENTIRE LIABILITY FOR ANY CLAIM OR LOSS, DAMAGE OR
EXPENSE FROM ANY CAUSE WHATSOEVER SHALL IN NO EVENT EXCEED, IN THE AGGREGATE,
THE GREATER OF $100,000 OR THE AMOUNT OF MONIES PAID OR PAYABLE TO
COMPANY HEREUNDER. NOTHING HEREIN SHALL BE DEEMED TO EXCUSE COMPANY'S LIABILITY
TO PAY COMMISSIONS TO THE FULL EXTENT PROVIDED IN THIS AGREEMENT OR TO RELIEVE
COMPANY OF ANY EXPRESS REMEDY SET FORTH IN THIS AGREEMENT.
32.2 NO ACTION OR PROCEEDING AGAINST EITHER PARTY MAY BE COMMENCED MORE THAN
EIGHTEEN (18) MONTHS AFTER THE CAUSE OF ACTION ACCRUES.
32.3 THIS CLAUSE SHALL SURVIVE FAILURE OF ANY EXCLUSIVE REMEDY SET OUT IN THIS
AGREEMENT.
33.0 ENTIRE AGREEMENT
33.1 The terms and conditions contained in this Agreement and any subordinate
agreement supersede all prior oral or written understandings between the Parties
with respect to the subject matter thereof and constitute the entire agreement
of the Parties with respect to such subject matter. Such terms and conditions
shall not be modified or amended except by a writing signed by authorized
representatives of both Parties.
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IN WITNESS THEREOF, the Parties have executed this Agreement on the respective
dates entered below.
LUCENT TECHNOLOGIES INC. NET2WIRELESS CORPORATION
By: By:
------------------------------------------ ----------------------------
(Signature) (Signature)
Xxxxxx Xxxxxxxx Xxxxxxx Xxxxxxxx
------------------------------------------ ----------------------------
(Typed Name) (Typed Name)
Director, Product Management & Marketing CEO
------------------------------------------ ----------------------------
(Title ) (Title )
------------------------------------------ ----------------------------
(Date Signed) (Date Signed)
