Exhibit 10.101
ORIGINAL EQUIPMENT MANUFACTURING AGREEMENT
This OEM Agreement (the "Agreement") is made effective on the 1st day of July,
2002 (the "Effective Date"), by and between P-COM, INC., a corporation organized
under the laws of the State of Delaware, USA, with its principal place of
business at 0000 Xxxxx Xxxxxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000 XXX
("P-COM"), and SHANGHAI DATANG MOBILE COMMUNICATIONS EQUIPMENT COMPANY LIMITED,
a company registered in the People's Republic of China with its office at
Xxxxxxxx 00, 000 Xxxxxxxx Xxxx, Xxxxxxxx 200233, PRC ("SDTM").
WHEREAS P-COM manufactures and sells the high frequency, high capacity wireless
access products set forth in Exhibit A (the "OEM Products"), which are comprised
of hardware (the "OEM Equipment") and software (the "OEM Software"); and
WHEREAS pursuant to the terms of this Agreement, P-COM desires to sell to SDTM
and SDTM desires to purchase, distribute and sell the OEM Products in the
Peoples Republic of China (the "Territory") and to incorporate the OEM Products
into wireless networks installed or supplied by SDTM in the Territory for end
users and projects; and
NOW THEREFORE, in consideration of the mutual promises and covenants set forth
herein, the parties agree as follows:
1. PURCHASE AND SALE OF OEM PRODUCTS
1.1 Offer to Sell P-COM hereby offers to sell to SDTM and SDTM agrees to
purchase from P-COM a minimum of US$100,000,000 (One Hundred Million
Dollars) OEM Products during the next three years of this Agreement on
a non-exclusive basis for the Territory in accordance with the terms
and conditions set forth herein. Further, SDTM agrees to purchase the
OEM Products at the minimum rate of US$25,000,000 (Twenty-Five Million
Dollars) during the first year, with the first US$3,000,000 (Three
Million Dollars) to be purchased and shipped (if P-COM desires) prior
to September 30, 2002; Pursuant to this Agreement, SDTM shall have the
right to (i) distribute, sell, lease and maintain the OEM Products in
the Territory to end users and projects; and (ii) to incorporate the
OEM Products into SDTM's wireless networks installed or supplied in
the Territory to end users and projects. SDTM shall not solicit sales,
or distribute the OEM Products outside of the Territory, or to any
person or entity in the Territory that SDTM believes intends to sell
the OEM Products outside of the Territory, without the prior written
consent of P-COM.
1.2 Nothing in this Agreement shall be construed to grant SDTM any rights
or license to manufacture, modify, duplicate, or otherwise copy or
reproduce any of the OEM Products, in and out of the Territory.
Further, nothing herein shall be construed to grant SDTM any title,
rights, or other interest, whether express or implied, in any OEM
Products and technology, except as may be expressly provided herein.
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1.3 SDTM shall have no authority to act for or to bind P-COM in any way,
to alter any of the terms or conditions of P-COM's standard forms, to
warrant or to execute agreements on behalf of P-COM, or to represent
that P-COM is in any way responsible for the acts or omissions of
SDTM. SDTM shall be an independent contractor only.
1.4 OEM Products will use SDTM brand, trademark and product model. OEM
Products made by P-COM will exclude external identifications such as
brand, trademark and model, etc. SDTM shall be responsible for the
design, making and posting of brand, trademark and model on OEM
Products, as well as the translation and compiling of Chinese manuals
according to product technical materials provided by P-COM. If
requested by SDTM, P-COM will modify the corresponding markers on the
P-COM software interface. Prior to its final release, SDTM reserves
the right to approve such software modifications.
1.5 If SDTM requests, P-COM shall affix to designated OEM Products,
shipping boxes, manuals and documentation certain of SDTM's logos,
labels or marks. SDTM will pay P-COM's mutually agreed reasonable
set-up costs plus the variance in product cost for such product
labeling. SDTM represents and warrants to P-COM that it has the full
right to use such logos, labels or marks. P-COM and SDTM must mutually
agree in writing the affixation, use or other display of a logo, label
or xxxx on OEM Products, and the manner of such affixation.
2. SDTM OBLIGATIONS
2.1 SDTM shall, at SDTM's own cost and expense:
(a) maintain an adequate and aggressive sales organization in the
Territory;
(b) use its reasonable efforts to promote, advertise, sell,
distribute, and create demand for the OEM Products, and to assure
adequate advisory, installation, maintenance and support services
for the OEM Products in the Territory;
(c) obtain and maintain all necessary licenses, permits and approvals
as may be required to import, install and supply the OEM Products
in the Territory, and assist P-COM in obtaining necessary
permits, licenses, visas, and other approvals required for P-COM
personnel to travel to and visit at SDTM's sites, or the sites of
SDTM's customers;
(d) comply with all safety regulations and standards and such other
regulations and/or licensing requirements as are or may be
promulgated by authorized governmental authorities and required
in order to carry out the terms of this Agreement, including
obtaining required governmental licenses or other certificates in
the Territory;
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(e) maintain a sufficient stock of spare parts for the OEM Products
sold in the Territory in order to satisfy market demand for
prompt delivery;
(f) clear the OEM Products and all related materials through customs,
including payment at the port or airport of entry of all duties,
taxes, fees, levies, storage charges, and other charges related
to the customs clearance, provided that SDTM receives from P-COM
all custom documentation reasonably specified in advance by SDTM;
(g) submit an annual business plan within thirty (30) days of signing
this Agreement, and thirty (30) days before the end of every year
thereafter during the Term of this Agreement. The business plan
shall include as a minimum an annual forecast of sale of the OEM
Products and the steps that SDTM shall take to achieve sales in
line with such forecast. SDTM shall use its best efforts to
follow the business plan and achieve the sales forecast. On or
before the first day of each fiscal quarter during the Term of
this Agreement, SDTM shall provide detailed quarterly forecasts
of estimated Product purchases covering the succeeding three (3)
month period;
(h) advise P-COM regularly of sales results and promptly notify P-COM
of market changes in the Territory that affect, or which may
affect, sales of OEM Products;
(i) coordinate with P-COM's technical support personnel on all
matters relevant to maintaining effective and efficient pre-sales
and post-sales service;
(j) act in the best interests of P-COM and refrain from engaging in
any activity or publishing or announcing any information that
could be deemed to be detrimental to the best interests and/or
business reputation of P-COM;
(k) ensure that SDTM's personnel attending P-COM's training courses
shall be qualified and with a command of English, and are bound
by and notified of the confidentiality obligations set forth in
Section 12;
(l) ensure that SDTM's employees involved in marketing and selling
P-COM's OEM Products are bound by and notified of the
confidentiality obligations set forth in Section 12.
2.2 Representations of SDTM
2.2.1 SDTM represents and warrants that, in performing work for P-COM
under this Agreement, it shall not use any confidential
information of any person or entity without such person or
entity's consent.
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2.2.2 SDTM represents and warrants that it shall not disclose P-COM
Confidential Information to any manufacturer, representative, or
agent for products that compete with P-COM's OEM Products without
P-COM's advance written consent.
2.2.3 SDTM represents and warrants to P-COM that SDTM has obtained all
licenses, permits, certificates, approvals or other documentation
("Approvals") necessary to perform SDTM's duties hereunder,
whether domestic or foreign, and is duly qualified to transact
business in the Territory. SDTM further represents and warrants
that its performance of this Agreement will not violate any
applicable regulation, rule, law or agreement, instrument, or
writing, by which SDTM or any of its assets are bound.
2.2.4 SDTM represents that there are no contracts, restrictive
covenants, or any other restrictions preventing full performance
of SDTM's duties hereunder. SDTM further represents that the
execution, delivery and performance of this Agreement will not
constitute a default under or breach of any agreement or other
instrument to which SDTM is, or in the future shall be, a party
or by which SDTM is bound, including without limitation, any
confidentiality or noncompetition agreement.
3. P-COM OBLIGATIONS
3.1 P-COM shall:
(a) deliver the OEM Products set forth in purchase orders issued by
SDTM and accepted by P-COM pursuant to the terms of this
Agreement;
(b) comply with all safety regulations and standards and such other
regulations and/or licensing requirements as are or may be
promulgated by authorized governmental authorities and required
in order to carry out the terms of this Agreement, including
obtaining required governmental licenses or other certificates in
the Territory;
(c) provide to SDTM, at no cost, technical Product information which
is provided generally to P-COM's other customers ("Technical
Materials") and technical advice for the OEM Products;
(d) provide SDTM with marketing and sales literature for the OEM
Products ("Marketing Materials"). P-COM shall provide Technical
Materials and Marketing Materials without charge in reasonable
quantities, or, in the case of larger quantities as shall be
determined by P-COM, SDTM shall pay for such materials in
accordance with P-COM's then current price list.
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(e) supply, per mutually agreed terms and conditions, SDTM personnel
with favorable product training conditions and trainer; the
training includes marketing, sales and engineering training, not
less than three times per year, including one time high-level
training abroad.
(f) guarantee that OEM Products conform to China related industry
standard; responsible to reasonably assist SDTM in obtaining
product network-access permit necessary to product sales within
the Territory, including model approval, network access
examination, etc.
(g) supply SDTM with competitive pricing for OEM Products and spare
parts. According to change in market conditions, the price may be
reviewed and adjusted once per year, if mutually agreed. Under
the condition of equal sale (product types, quantities and other
terms and conditions being equal), the price for SDTM shall be
the lowest one in the current pricing offered by P-COM within the
Territory, or to the plants and traders, including distributors /
agents or OEM, etc. within the Territory.
(h) on a quarterly basis, supply SDTM with the latest information and
material about the product and technology concerning the OEM
Products, including modification of product and technology, the
explanation of latest software edition, the issue plan on product
upgrade or up-generation and other technical information, etc.
3.2 Representations of P-COM
3.2.1 P-COM represents and warrants that it shall not disclose SDTM
Confidential Information to any manufacturer, representative, or
agent for marketing & sales that compete with SDTM, without
SDTM's advance written consent.
3.2.2 P-COM represents and warrants to SDTM that P-COM has obtained
all licenses permits, certificates, approvals or other
documentation ("Approvals") necessary to perform P-COM's duties
hereunder, whether domestic or foreign. P-COM further represents
and warrants that its performance of this Agreement will not
violate any applicable regulation, rule, law or agreement,
instrument, or writing, by which P-COM or any of its assets are
bound.
3.2.3 P-COM represents that there are no contracts, restrictive
covenants, or any other restrictions preventing satisfactory
performance of P-COM's duties hereunder. P-COM further represents
that the execution, delivery and performance of this Agreement
will not constitute a default under or breach of any agreement or
other instrument to which P-COM is, or in the future shall be, a
party or by which P-COM is bound, including without limitation,
any confidentiality or noncompetition agreement.
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4. ORDER AND SUPPLY OF OEM PRODUCTS
4.1 Purchase Orders. For all purchase orders (each individually a
"Purchase Order"), SDTM shall issue a written order which shall
reference this Agreement and specify the OEM Products desired by SDTM,
including the Purchase Order number, relevant quantities, part
numbers, ship dates, prices (including total price of order),
destination, carrying method, consignee at destination, and other
necessary shipping instructions. SDTM shall deliver all Purchase
Orders to P-COM by facsimile or by e-mail, unless otherwise agreed in
writing by the parties.
4.2 All purchase orders should be addressed to:
P-COM, Inc.
0000 X. Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, XX, XXX 00000
4.3 Purchase Order acceptance (the "Order Acceptance") or purchase order
rejection by P-COM shall be made by facsimile or e-mail no later than
five (5) USA business days from receipt of a purchase order from SDTM.
4.4 The placing by SDTM of a Purchase Order and P-COM's Order Acceptance
thereof in accordance with this Agreement shall create a contract of
sale between P-COM and SDTM on the terms of such purchase order and of
this Agreement. A Purchase Order issued by SDTM and accepted by P-COM
is non-cancelable.
4.5 Unless mutually agreed in writing, the terms and conditions of any
Purchase Order issued by SDTM or any Order Acceptance issued by P-COM
shall not alter the terms and conditions of this Agreement, which
shall prevail if in conflict with any such Purchase Order or Order
Acceptance.
5. DELIVERY AND INSPECTION OF OEM PRODUCTS
5.1 Delivery. All OEM Products shall be delivered Ex Works P-COM's USA or
European facility (Incoterms 2000), unless otherwise agreed by the
parties, all in accordance with SDTM's shipping instructions. P-COM
shall ship within [*] after P-COM's receipt and acceptance of SDTM's
letter of credit or wire transfer. Delivery of OEM Products sold
hereunder shall be in accordance with the applicable Purchase Order.
P-COM shall notify SDTM when the OEM Products are ready for shipment.
5.2 Risk of Loss and Title. Risk of loss or damage and title with respect
to OEM Products delivered to SDTM shall pass from P-COM to SDTM upon
delivery of unloaded OEM Products to the initial carrier Ex Works
P-COM's USA or European facility (Incoterms 2000).
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5.3 Inspection. P-COM shall conduct product testing according to its
standard production test program. SDTM or its officially assigned
agent reserves the right to inspect the products in P-COM's factory
and bears the corresponding expenses itself, provided that said
inspection is timely and does not delay shipment as scheduled by
P-COM.
6. PRICES
6.1 The prices payable for the OEM Products and the services hereunder
shall be per Exhibit B. Prices shall be quoted in U.S. Dollars. All
prices for OEM Products are Ex Works P-COM's USA or European facility
(Incoterms 2000). The prices exclude charges for site survey, site
preparation, civil works, utilities, maintenance, VAT, and other
applicable taxes, duties, import charges, transportation, handling and
insurance during transit. According to change in market conditions,
the price may be reviewed and adjusted once per year if mutually
agreed. Under the condition of equal sale (product types, quantities
and other terms and conditions being equal), the price for SDTM shall
be the lowest one in the current pricing offered by P-COM within the
Territory, or to the plants and traders, including distributors /
agents or OEM, etc. within the Territory.
6.2 The prices for all services will be quoted by P-COM to SDTM on a
case-by-case basis.
7. PAYMENT
7.1 P-COM shall deliver an invoice to SDTM in the full amount of the
purchase order upon shipment of the OEM Products. All payments shall
be made in full in U.S. dollars by irrevocable letter of credit and
per the P-COM Letter of Credit Guidelines attached as Exhibit C.
7.2 Taxes. SDTM shall be responsible for the payment of any and all
currently applicable or hereinafter imposed taxes, duties, levies,
fees and other charges that are imposed by any local, national, public
or quasi-public government entity that arise out of or affect the sale
and importation of the OEM Products.
8. PRODUCT MODIFICATIONS/DISCONTINUATIONS
8.1 P-COM shall have the right to modify, alter, or improve any or all of
the OEM Products that do not affect its form, fit or function, and
shall have the right to discontinue manufacture of specific OEM
Products. Written notice shall be given to SDTM at least ninety (90)
days prior to discontinuation of a Product. SDTM may place a one-time
final buy for any discontinued Product. After discontinuing the OEM
Products and for 3 years from the date of the written notice, P-COM
shall make available to SDTM spare parts; for a period of two years
from the written notice, prices shall not exceed the pricing in the
most recent orders for like products.
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8.2 SDTM acknowledges and agrees that variations in SDTM's requirements
may result in the need for additional Equipment and/or Software. Any
changes, modifications or enhancements of the Product or system design
requested by SDTM which affect the hardware or software modules
contained therein, will be quoted separately by P-COM. If required, an
equitable adjustment in the delivery schedule will also be made to
accommodate the requested changes and modifications. No change order
will be implemented until the parties have mutually agreed, in
writing, to the price and schedule for the change.
8.3 P-COM may periodically issue upgraded versions of the Software. SDTM
shall be given the opportunity to purchase such upgrades at mutually
agreed prices and other terms and conditions.
9. SPARE PARTS
9.1 Commitment. P-COM shall have available for supply and shall supply to
SDTM spare parts for the Equipment for three (3) years from the
Effective Date, unless otherwise agreed by the parties on a
case-by-case basis. P-COM reserves the right to provide notice that a
particular part or parts will be discontinued.
9.2 Stock of Parts. SDTM agrees to purchase from P-COM (at the prices set
forth in Exhibit B) an adequate supply of spare parts to be stocked by
SDTM at such places and in such quantities recommended by P-COM. Upon
request of SDTM and to the extent that it is available, P-COM shall
supply failure rate information on the OEM Products.
10. PROPERTY RIGHTS AND MARKS.
10.1 P-COM and SDTM agree that SDTM may use SDTM's trademark on the OEM
Products and that SDTM shall not use P-COM's trademark, logo, trade
name or service xxxx. SDTM shall not transfer to P-COM any right to
the SDTM trademark and SDTM has no rights to P-COM's trademark, logo,
trade name or service xxxx.
10.2 SDTM acknowledges and agrees that: (a) all intellectual property
rights subsisting in or related to P-COM's trademark, logo, trade name
or service xxxx, the OEM Products and the Software, including but not
limited to patents and other know-how and copyright, both registered
and unregistered, owned and/or otherwise used by P-COM and all
goodwill related thereto (collectively the "IP Rights") are and shall
remain at all times the exclusive property of P-COM or, as the case
may be, its vendors and/or licensors; (b) the IP Rights may not be
exploited, reproduced or used by SDTM except as expressly permitted in
this Agreement, and (c) SDTM shall not have or acquire any right,
title or interest in or otherwise become entitled to any IP Rights by
taking delivery of, making payment for, distributing and/or selling or
otherwise using or transferring the OEM Products. SDTM shall take all
reasonable measures to ensure that all IP Rights of P-COM shall remain
with P-COM.
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11. SOFTWARE LICENSE
11.1 P-COM hereby grants to SDTM a non-transferable, non-exclusive license
to (i) use the Software in order to operate the OEM Products; and (ii)
sublicense the Software to end users that purchase the OEM Products or
who purchase or use wireless networks installed or supplied by SDTM in
the Territory, or otherwise have authorized access to the OEM Products
or SDTM's wireless networks, in order to operate the OEM Products.
SDTM is expressly prohibited from using or transferring the Software
or any portions thereof, except as expressly provided herein.
11.2 SDTM shall only sublicense the Software pursuant to a written
sublicense incorporating the limitations set forth in this Section.
SDTM's sub licensees are prohibited from copying or licensing the
Software and all sublicenses between SDTM and SDTM's sublicensees
shall expressly contain this prohibition.
11.3 SDTM shall not modify, reproduce, copy, reverse compile, reverse
assemble, disassemble, or decompile or attempt to derive the source
code and algorithms in any such Software, or any portions thereof,
without P-COM's prior written consent, except that SDTM may make one
copy for back up purposes.
11.4 The term of the License is perpetual provided that the Software is
used to operate the OEM Products in accordance with this License.
12. CONFIDENTIALITY
12.1 From time to time, either party may make available to the other party
information of a confidential and/or proprietary nature including, but
not limited to, technical and commercial information, in a written
form or orally. All confidential and/or proprietary information
transmitted by one party to the other shall be treated by the
receiving party with the same care as such receiving party would
exercise in the handling of its own confidential and/or proprietary
information, but not less than reasonable care. Such receiving party
shall not disclose such confidential and/or proprietary information to
any person, employees, consultants and/or contractors unless it
receives the prior written consent of the disclosing party and subject
to such terms and conditions as the disclosing party specifies. Upon
termination or cancellation of this Agreement for any reason, all such
confidential and/or proprietary information of the disclosing party
shall be immediately returned to the disclosing party it and the
limitations and undertakings specified in this Section shall remain in
effect from the date of termination or expiration of this Agreement.
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12.2 Confidential Information shall not include information or matter that
(a) was already known to the recipient prior to its disclosure by the
other party or is independently developed by the recipient, as
demonstrated by reasonable and tangible evidence satisfactory to the
disclosing party; (b) has appeared in any printed publication or
patent or shall become a part of the public knowledge except as a
result of breach of this Agreement by the recipient; (c) has been
received by the recipient from another person or entity having no
obligation to the disclosing party or its affiliates; or (d) is
approved in writing by the disclosing party for release by the
recipient.
12.3 The parties agree that information embodied within the Product, as
well as in the Technical Materials, Marketing Materials, and pricing
information provided by P-COM to SDTM from time to time, constitutes
valuable trade secrets and is proprietary to P-COM and that SDTM will
protect and keep confidential such P-COM information and will make no
attempt to copy, alter, misuse or otherwise violate such information
and will keep it confidential in accordance with this Section. P-COM
grants to SDTM a non-exclusive and nontransferable license to use such
information for the sole purpose of enabling SDTM to obtain and
utilize the OEM Products and to market and sell the OEM Products.
13. LIMITED WARRANTY
13.1 P-COM warrants to SDTM that the OEM Products to be delivered hereunder
shall be free of defects in material and workmanship for a period of
[*] from the date of shipment to SDTM, unless otherwise agreed by the
parties on a case-by-case basis (the "Warranty Period").
13.2. Under the warranty, P-COM shall, at its sole option and expense,
repair or replace any Equipment found to be defective during the
Warranty Period, provided that SDTM notifies P-COM within thirty (30)
days of discovery of such defect. Such defective Equipment shall be
returned to P-COM's premises at SDTM's expense. Return of the repaired
or replacement Equipment to SDTM's original destination shall be at
the expense of P-COM, unless P-COM determines that the Equipment is
not defective within the terms of the warranty, in which event SDTM
shall pay P-COM the costs of handling, transportation and labor at
P-COM's then prevailing rates. SDTM shall comply with P-COM's return
material authorization ("RMA") procedures for all warranty service
requests pursuant to this Section. Attached in Exhibit D is the Return
Material Process.
13.3. Limitation on Warranties.
13.3.1 The warranty does not apply to normal wear items or to items
normally consumed in operation, such as lamps and fuses.
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13.3.2 This warranty does not apply to any Equipment that: (a) has had
the serial number, model number or any other identification
markings removed or rendered illegible; (b) have been damaged by
improper operation, maintenance, misuse, accident, neglect,
failure to continually provide a suitable operating environment
(including necessary ventilation, electricity, protection from
power surges, cooling and/or humidity), or from any other cause
beyond P-COM's reasonable control, including force majeure, and
without P-COM's fault or omission or negligence or the fault or
negligence or omission of P-COM's employees, agents or other
representatives; (c) have been used in contravention of the
instructions supplied by P-COM; (d) have been subject to the
opening of any sealed components without P-COM's prior written
approval; (e) have had changes made by SDTM or SDTM's agents to
the physical, mechanical, electrical, software or interconnection
components of the Equipment supplied by P-COM without written
authorization of P-COM to do so; or (f) have been repaired or
otherwise altered by anyone not under the control of, or not
having the written authorization of P-COM to do such repair or
alteration.
13.3.3 The Software is provided "as is" and without warranty of any
kind. P-COM does not warrant that the Software will be error free
or uninterrupted in its use or operation. P-COM will endeavor to
correct any material software defects in a timely fashion and
free of charge.
13.3.4 The warranties provided in this section constitute P-COM's sole
and exclusive liability for defective or nonconforming equipment,
software and services and shall constitute SDTM's sole and
exclusive remedy for defective or nonconforming equipment,
software and services. These warranties are in lieu of all other
warranties express or implied or statutory, including, but not
limited to, implied warranties of merchantability or fitness for
a particular purpose, and are in lieu of all obligations or
liabilities on the part of P-COM for damages.
13.4 SDTM shall be responsible to its customers for any and all warranties
which SDTM makes to its customers relating to the OEM Products and for
ensuring all requirements in connection with such warranties.
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14. TECHNICAL SUPPORT AND EXTENDED MAINTENANCE
14.1 Support Services. During the Warranty Period (and thereafter, subject
to SDTM's payment of extended warranty fees), P-COM shall provide the
SDTM with reasonable technical support by phone during regular working
hours. During the Warranty Period, P-COM shall provide, at no charge
to SDTM, Software Updates as are generally provided to P-COM's
customers. The term "Software Updates" refers to changes made to the
Software to correct errors after P-COM has confirmed said errors.
14.2 P-COM shall supply technical support for problems with the OEM
Products. Unless SDTM or P-COM notifies the other party in writing of
a new contact person, the technical support contacts for SDTM and
P-COM are:
XXXX(xxxxx)(0)Xxxx XxxXx
Xxx(xxxxx)(0)00-00-00000000-000
FAX(pound)(0)00-00-00000000
E-Mail(pound)(0)xxxxxxxxx@xxxx.xxxxxx.xx.xx
P-COM: Ren Zhihua
Tel: 00-00-00000000 Ext: 305
Fax: 00-00-00000000
Email: xxxxx_xxx@X-XXX.xxx.xx
SDTM may purchase extended warranty services in accordance
with P-COM's current price list for such services at the time
of ordering thereof. P-COM shall provide extended maintenance
services at the expiration of the applicable Warranty Period
if and to the extent ordered by SDTM.
15. TRAINING
15.1 Technical Training
In connection with the sale of Products hereunder, P-COM shall provide
10 of SDTM's employees initial technical training sufficient to sales,
installation, configuration, and maintenance of P-COM Products for
five days of eight hours per day. P-COM's trainers shall provide
SDTM's trainees with adequate training materials, such materials being
part of the documentation. P-COM shall also provide additional
training to SDTM as necessary with respect to new features of the
Products that are released by P-COM from time to time. Unless
otherwise agreed to by the parties in writing, all oral training and
training materials shall be in the English language and the initial
training hereunder shall be provided in Shanghai, China. [*]
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15.2 Training Materials
P-COM shall provide to SDTM one set of reproducible training materials
free of charge, including such materials as usually utilized by P-COM
when instructing its own customers (e.g. Video clips). Such training
materials shall be in English. SDTM shall be entitled to copy, modify
and translate such training materials and to attach to any copy its
own copyright notices. SDTM and its subsidiary companies and other
sales outlets may utilize any copy of P-COM's training materials for
performing own training courses for their own customers.
16. LIMITATION OF LIABILITY
16.1 No Consequential Damages. UNDER NO CIRCUMSTANCES SHALL EITHER P-COM OR
SDTM BE LIABLE FOR INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL
DAMAGES (HOWEVER ARISING), INCLUDING, BUT NOT LIMITED TO, LOSS OF
PROFIT, LOSS OF USE, LOSS OF REVENUES OR DAMAGES TO BUSINESS OR
REPUTATION ARISING FROM THE PERFORMANCE OR NON-PERFORMANCE OF ANY
ASPECT OF THIS AGREEMENT OR ANY PURCHASE ORDERS THEREUNDER WHETHER OR
NOT P-COM OR SDTM SHALL HAVE BEEN MADE AWARE OF THE POSSIBILITY OF
SUCH LOSS. THE FOREGOING NOTWITHSTANDING, IN THE CASE OF DEATH OR
INJURY TO ANY PERSON OR DAMAGE TO TANGIBLE PERSONAL PROPERTY OF THIRD
PARTIES THIS SECTION SHALL NOT BE APPLICABLE TO ANY DAMAGES ARISING
FROM SUCH DEATH, PERSONAL INJURY, OR PROPERTY DAMAGE. THIS SECTION
APPLIES TO ALL OTHER LIABILITY, LOSSES OR CLAIMS UNDER THIS AGREEMENT,
HOWEVER ARISING.
16.2 Damage Limitation. The extent of P-COM's liability hereunder is
limited to the repair or replacement of defective Equipment or parts
of the Equipment, under the conditions and in the manner provided
above, and in no event shall P-COM's liability exceed the purchase
price paid by SDTM hereunder for the OEM Products.
17. INDEMNIFICATION
17.1 General Indemnity. Each party shall indemnify the other for losses,
costs, damages and amounts awarded against the other in a
non-appealable court decision in connection with a claim, suit or
proceeding that arises from injury or death to persons or damage to
tangible property, to the extent such injury or death is caused by the
negligence or willful misconduct of such other Party.
[*] Confidential treatment requested
13
17.2 Intellectual Property Indemnification
17.2.1 P-COM shall indemnify, defend and hold harmless SDTM, from any
and all suits, claims, actions or proceedings brought against
SDTM alleging that the OEM Products infringe any US patent,
copyright, trademark, or other intellectual property right, or
misappropriates any trade secret. P-COM agrees to defend SDTM, at
P-COM's expense, against any such claims and to pay all
settlement payments, costs and legal expenses, including
reasonable attorneys' fees, and any damages arising from such
suit, claim, action or proceeding. Such liability and defense are
conditioned on SDTM promptly advising P-COM of any such suit,
claim, or proceeding, reasonably cooperating with P-COM in the
defense or settlement of such suit, claim or proceeding, and
P-COM having sole control thereof.
17.2.2 SDTM further agrees that it will indemnify P-COM on the same
terms as P-COM is obligated to indemnify SDTM pursuant to this
Section, should any claim of infringement be made against P-COM
because of SDTM's particular design requirements or instructions,
or SDTM's use of the Product in combination with other apparatus
or software not supplied by P-COM under any purchase order issued
hereunder, or SDTM's modification of the Product.
17.2.3 The obligation of P-COM hereunder with respect to any
infringement claim shall not apply and SDTM shall be liable to
P-COM in regards to the indemnity obligations set forth above in
case infringement claims are based on: (a) use of OEM Products by
SDTM in combinations with other products not recommended by
P-COM, and/or not contemplated, nor suggested by P-COM's Product
documentation existing as of the Effective Date of this
Agreement; (b) modifications to a Product made by SDTM; (c)
SDTM's use of equipment supplied by third parties.
17.2.4 In the event that any Product is held, or in SDTM's reasonable
opinion may be held, to constitute an infringement, P-COM, at its
expense, will either (i) obtain for SDTM or its Customers the
right to continue to use such OEM Products as contemplated under
this Agreement, (ii) modify such OEM Products so that they become
non-infringing, but without altering their functionality, or
(iii) replace such OEM Products with functionally equivalent
non-infringing OEM Products.
[*] Confidential treatment requested
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18. TERM AND TERMINATION
18.1 This Agreement shall be valid for a period of three [*] from the
Effective Date (the "Initial Term"), unless otherwise terminated in
accordance with the terms of this Agreement. Following such Initial
Term, this Agreement shall be automatically renewed for successive one
year additional terms ("Additional Terms"), unless either party
notifies the other in writing of an intention not to renew the
Agreement within sixty (60) days of the end of the Initial Term or any
Additional Term.
18.2 Either Party may immediately terminate this Agreement on thirty (30)
calendar days notice in the event that: (i) a receiver, trustee, or
liquidator of the other party is appointed for any of its properties
or assets; (ii) the other party admits in writing to its inability to
pay its debts on time: (iii) the other party makes a general
assignment for the benefit of its creditors: (iv) the other party is
adjudicated as bankrupt or insolvent; (v) a petition for the
re-organization of the other party or an arrangement with its
creditors, or readjustment of its debts, or its dissolution or
liquidation is filed under any law or statute; (vi) the other party
ceases its business activities, commences dissolution or liquidation;
(vii) the other party becomes affiliated with any firm or company that
sells products which directly compete with the OEM Products.
18.3 In the event of a Force Majeure event that continues for longer than
ninety (90) days, either party will have the option to terminate this
Agreement immediately upon providing written notice to the other
party.
18.4 This Agreement may be terminated by either Party, upon ninety (90)
calendar days written notice in the case of a material breach of any
of the covenants, representations, warranties, or other terms and
conditions of this Agreement, or any material default in the
obligations hereunder, by the other party, if such breaching party
fails to remedy the default within sixty (60) calendar days from the
date of such notice.
19. EFFECT OF TERMINATION
19.1 Upon termination or expiration of this Agreement, SDTM's rights to
purchase the OEM Products and sublicense the Software set forth in
this Agreement shall immediately terminate. In addition, upon
termination, SDTM shall (i) cease the use of the Trademarks; and (ii)
return to P-COM any property of P-COM, including, but not limited to,
Marketing Materials and Technical Materials, as defined in Section 3.
19.2 Provided that the reason for termination or expiration of this
Agreement is not due to non-payment by SDTM, purchase orders placed by
SDTM and confirmed by P-COM prior to the expiration or termination
date of this Agreement shall be delivered by P-COM in accordance with
the confirmed delivery schedule in the purchase order, and SDTM shall
pay for all delivered OEM Products in accordance with the terms and
conditions of the confirmed purchase order.
[*] Confidential treatment requested
15
19.3 In the event of termination of this Agreement due to a Force Majeure
event as described in Section 20, SDTM shall pay P-COM the balance of
all charges and payments due to P-COM up to the date of termination.
20. FORCE MAJEURE
20.1 Neither party will be liable for any loss or damage resulting from
delay or failure to perform any of its contractual obligations within
the time specified as a result of causes beyond its control ("Force
Majeure"). Force Majeure may include, by way of example but not
limitation, those circumstances beyond the control of the affected
party such as acts of God, the public enemy, acts of government, or
any department or agency thereof, as well as fire, flood, earthquakes,
epidemics, quarantines, riots, wars, civil insurrections, freight
embargoes, labor disputes, and unusually severe weather.
20.2 In the event of a Force Majeure, the affected party will be excused
from performance during the existence of the Force Majeure and the
date of performance of the work will be extended for a period of time
equal to the impact of the delay on the schedule. When a Force Majeure
occurs, the affected party will immediately notify the other party in
writing of the existence of the Force Majeure and will attempt to
mitigate the effect of the Force Majeure as much as possible. If such
delaying cause shall continue for more than ninety (90) days, the
party injured by the inability of the other to perform shall have the
right, upon written notice to the other party, to terminate this
Agreement or the applicable Purchase Order.
20.3 The above is without prejudice to the rights already accrued to the
parties as the result of their performance or failure to perform,
either in whole or in part pursuant to their obligations under the
Agreement, prior to the occurrence of events of Force Majeure. All
amounts due and receivable prior to the occurrence of the Force
Majeure will remain due and receivable despite the Force Majeure.
21. EXPORT RESTRICTIONS
21.1 P-COM shall be responsible for obtaining any applicable export
licenses for delivery of the OEM Products.
21.2 SDTM understands that P-COM is subject to regulation by agencies of
the United States Department of Commerce and other countries, which
prohibit export or diversion of equipment, including the OEM Products,
to certain countries. SDTM agrees not to export the OEM Products or
the Software directly or indirectly, to any country for which U.S. and
other export license is required without first receiving confirmation
that the U.S. Department of Commerce or other applicable authority has
approved such export. SDTM shall comply with all laws and regulations
concerning importation of the OEM Products or the Software and will
use its best efforts and timely action to obtain and maintain all
necessary approvals for import licenses and other similar permits.
[*] Confidential treatment requested
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22. SETTLEMENT OF DISPUTES/GOVERNING LAW
22.1 Arbitration. All disputes arising in connection with the Agreement or
in the execution thereof, should be settled amicably through
negotiations. If no mutually acceptable settlement of such dispute is
reached within sixty (60) days of the written notice of such dispute
by a party, then such dispute shall be finally and exclusively settled
by arbitration as provided herein. Arbitration shall be conducted in
Singapore by the Singapore International Arbitration Center in
accordance with the provisions hereof and in accordance with the rules
of the Singapore International Arbitration Center in force at the time
such dispute is submitted for arbitration, which rules are deemed to
be incorporated by reference herein. All proceedings in any such
arbitration shall be conducted in English. The arbitration award shall
be non-appeasable, final and binding on all parties. The costs of
arbitration shall be borne by the losing party, unless otherwise
specified in the arbitration award.
22.2 Governing Law. This Agreement shall be governed and construed under
the laws of HONG KONG.
23. MISCELLANEOUS PROVISIONS
23.1 Publicity. It is agreed that P-COM may identify SDTM as a user of
P-COM's OEM Products in advertisements, promotional literature, and
reports to P-COM's shareholders. It is further agreed that SDTM may
identify to its Customers that P-COM is a supplier of the OEM Products
to SDTM. [*]
23.2 Survival. Upon termination of this Agreement the following Sections of
this Agreement shall survive: 2.2.1, 9.1, 10-16, 18, and 20-22.
23.3 Notices. All notices and requests required or authorized hereunder,
shall, except where specifically provided otherwise, be given either
in writing by personal delivery or sent by registered mail, addressed
to the party intended at its address set forth in the caption, or by
facsimile. Notice shall be effective as of the date of delivery in the
case of (i) personal delivery and (ii) facsimile transmission. For
registered mail delivery, notice shall be effective ten (10) days
after the date upon which such notice is deposited for registered mail
delivery, addressed to the party intended at its proper address.
23.4 Integration. This Agreement (with the Exhibits referred to herein)
sets forth the entire agreement between the parties on the subject
hereof and supersedes any previous oral or written agreements,
understandings, memoranda, letters or representations on the subject
matter hereof. This Agreement may be amended only by a writing signed
by the duly empowered representatives of the parties.
[*] Confidential treatment requested
17
23.5 Severance. If any one or more of the terms of this Agreement shall for
any reason be held to be invalid or unenforceable, such term shall be
construed in a manner to enable it to be enforced to the extent
compatible with applicable law. Any determination of the invalidity or
unenforceability of any provision of the Agreement shall not affect
the remaining provisions hereof unless the business purpose of this
Agreement is substantially frustrated thereby.
23.6 Binding Effect. This Agreement shall be binding on the parties and
their respective affiliates, subsidiaries and successors.
23.7 No Waiver. No delay or failure to exercise any right, power, or remedy
accruing to either party upon breach or default under this Agreement
shall be deemed a waiver of any prior or subsequent breach or default
of this Agreement, nor affect the validity of any provision of this
Agreement.
23.8 Relationship of Parties. The relationship of the parties is that of
seller and purchaser only. This Agreement is not intended by the
parties to constitute or create an employer-employee relationship, a
joint venture, pooling arrangement, partnership, agency or formal
business organization of any kind. P-COM and SDTM shall be independent
contractors with each other for all purposes at all times and no party
shall act as or hold itself out as agent for the other, unless so
designated in a separate agreement signed by the principal, nor shall
any party create or attempt to create liabilities for the other party
or parties. Neither party shall bind or attempt to bind the other
party to any agreement or to the performance of any obligation, nor
shall any party represent that it has the right to enter into any
undertaking on behalf of the other.
23.9 English Language. This Agreement and all communications and notices
shall be in the English language.
23.10 Assignment. SDTM is expressly prohibited from assigning or
transferring this Agreement and any of the rights and obligations
granted hereunder without the express advance written authorization of
P-COM. P-COM may assign this Agreement or any of the rights hereunder
in P-COM's discretion with prompt written notice to SDTM thereafter.
[*] Confidential treatment requested
18
IN WITNESS HEREOF, the parties hereto have executed this Agreement the day and
year first above written.
P-COM, INC. SHANGHAI DATANG MOBILE
COMMUNICATIONS EQUIPMENT
COMPANY, LIMITED
By: /s/ Xxxxxxx X. Xxxx By: /s/ Xxxx Xxxx
---------------------------------- -------------------------------
Name: Xxxxxxx X. Xxxx Name: Xxxx Xxxx
Title:Sr Vice President, Worldwide Sales Title:Chief Executive Officer
[*] Confidential treatment requested
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Exhibit A
OEM Products
P-COM's AirPro Xxxx.00.Xxx provides 11 Mbps wireless Ethernet connectivity in
both the 2.4 GHz and the 5.8GHz Spread Spectrum bands. AirPro Gold remains
competitively priced while boasting four major improvements: higher throughput,
improved spectral efficiency, routing capability and Non-Line-of-Sight Mode. The
throughput of AirPro Gold is 11 Mbps, and the spectral efficiency is improved by
a factor of 20. Attainment of the 11 Mbps throughput requires only 20 MHz of
bandwidth. And with the properly selected topology, AirPro Gold can operate in
Non-Line-of-Sight Mode. AirPro Gold claims a range in excess of 28 miles, full
routing capability, and real data throughput of 8.5 Mbps. These performance
improvements equate to an efficiency of 77%, with an associated throughput that
is 40% higher than most competitive products. Additionally, AirPro Gold provides
multiple physical topologies (Point-to-Multipoint, Peer-to-Peer, and
Point-to-Point), Quality of Service, downloadable firmware and software, and
optional 1 + 1 Hot-Standby protection. Underscoring AirPro Gold's exceptional
quality is an industry-leading three-year warranty. The AirPro Gold family will
provide new and expanded solutions at affordable prices to help satisfy the pent
up demand for such services.
P-COM's AirPro Gold 1E1/2E1, the newest addition to the AirPro Gold family of
products, has again set the industry standard for performance in Spread Spectrum
Communications. AirPro Gold 1E1/2E1 offers unmatched spectral efficiency of
0.4b/Hz/sec, plus scalability, burst synchronization and upgrade capabilities to
Point-to-Multipoint. AirPro Gold 1E1/2E1 is available in two models, 1E1 and
2E1, and offers easy configuration through dip switches, Command Line Interface,
SNMP, or P-COM's optional new element manager, SiteView Windows application.
P-COM's M400 Spread Spectrum Modem provides a 4xT1/E1 solution for voice and
data applications between two locations up to 30 miles (50 km) apart. This
technology delivers very low bit error rate links that have high immunity to
interference. A pair of M400 Modems with line-of-sight access create a robust
wireless link using spread spectrum microwave transmission.
P-COM's Tel-Link Radio System, operating at frequencies from 7 GHz to 50 GHz,
provides a cost-effective and immediate solution to voice and data transmission
requirements in capacities from 1E1 through 16E1. The Tel-Link Radio System is
available in both protected (1+1) and non-protected (1+0) configurations.
Consisting of an Outdoor Unit (ODU), an Indoor Unit (IDU), and a single coaxial
cable for the ODU-IDU interconnection, the Tel-Link system is ideally suited for
networks operated by personal communications and cellular service providers,
utilities, public telephone network operators, local governments and private
users.
[*] Confidential treatment requested
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Exhibit A
OEM Products
(continued)
P-COM's Tel-Link Encore Radio System provides a cost-effective solution to voice
and data transmission requirements in capacities from 2E1 to 16E1. Operating
from 7 to 38 GHz, the Tel-Link Encore features a new compact IDU and ODU with
enhanced features that include line interface, digital multiplexing, alarms and
diagnostics, service channel and network management interfaces. Tel-Link Encore
features user accessibility functions including Transmit Power, Receive Signal
Level (RSL), and operating frequency. Additionally, the Tel-Link Encore features
enhanced software allowing downloadable field upgrades and an optional embedded
SNMP agent for advanced network management capabilities. The advanced system
features and enhanced capabilities of the Tel-Link Encore make it the ideal
solution for networks operated by mobile service providers, Internet Service
Providers (ISP), utilities, public telephone operators, local governments and
corporate users.
P-COM's Point-to-Multipoint (PMP) System is an advanced digital broadband fixed
wireless access system and is a cost -effective solution for voice, data, video,
and internet communications. PMP supports Asynchronous Transfer Mode (ATM) and
Time Division Multiplexing (TDM) based services over 10GHz to 38GHz frequency
bands via highly efficient QPSK, 16QAM and 64QAM modulation techniques. PMP
employs both FDMA and TDMA access methods, providing efficient wireless access
to multi-users buildings, Small/Medium/Large Businesses, and network service
providers. PMP system delivers data throughput of 200 Mbps/Sector and 40
Mbps/Remote (uplink and downlink) in sectors ranging from 15o to 90o wide that
can extend up to 10 km. Multiple sectors can be arranged to provide full
360ocoverage at a base station. PMP IDUs and XXXx, connected via a single IFL
coaxial cable, contain all the necessary elements to provide a complete wireless
solution to ever increasing user bandwidth demands. Its operations and choices
of system interfaces are compatible to existing PBXs, Switches, Routers, LANs
and Bridges to provide a highly adaptable solution to varying network design
requirements.
[*] Confidential treatment requested
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Exhibit B
Prices
(Discount % to be determined)
AirPro Gold Wireless Routers (5.8GHz) Unit price
---------------------------------------------------------------------------------------------
AirPro Xxxx.00X.XXX [*]
---------------------------------------------------------------------------------------------
AirPro Gold.20F.2xE1 [*]
---------------------------------------------------------------------------------------------
AirPro Gold.20F.1xE1 [*]
---------------------------------------------------------------------------------------------
Xxx-Xxxx Xxx-xxxxxxxxx 0x0 Xxxxxxxx Unit price
---------------------------------------------------------------------------------------------
Tel-Link 7/8GHz, Universal Capacity (1E1~4E1) [*]
---------------------------------------------------------------------------------------------
Tel-Link 7/8GHz, Universal Capacity (8E1~16E1) [*]
---------------------------------------------------------------------------------------------
Tel-Link 13/15GHz, Universal Capacity (1E1~4E1) [*]
---------------------------------------------------------------------------------------------
Tel-Link 13/15GHz, Universal Capacity (8E1~16E1) [*]
---------------------------------------------------------------------------------------------
Tel-Link 18/23/26GHz, Universal Capacity (1E1~4E1) [*]
---------------------------------------------------------------------------------------------
Tel-Link 18/23/26GHz, Universal Capacity (8E1~16E1) [*]
---------------------------------------------------------------------------------------------
Data Channel #1: external RS-232 data (up to 9.6K bps) [*]
---------------------------------------------------------------------------------------------
NMS Data Port or Data Channel #2 [*]
---------------------------------------------------------------------------------------------
Conversion Panel (Non-Protected 8E1-16E1,120U to 75U ) [*]
---------------------------------------------------------------------------------------------
Link Manager [*]
---------------------------------------------------------------------------------------------
Tel-Link PMP Unit price
---------------------------------------------------------------------------------------------
Sector IDU Subsystem, DC, Non-Redundant [*]
---------------------------------------------------------------------------------------------
ODU Power Supply Shelf, DC, Non-Redundant [*]
---------------------------------------------------------------------------------------------
ODU Combiner Card [*]
---------------------------------------------------------------------------------------------
Modulator Card [*]
---------------------------------------------------------------------------------------------
FDMA Demodulator Card [*]
---------------------------------------------------------------------------------------------
TDMA Demodulator Card. 14.755Mbps@16-QAM [*]
---------------------------------------------------------------------------------------------
Sector ATM Controller Card [*]
---------------------------------------------------------------------------------------------
Xxxxxx XXX, 00XXx, Band 1, Standard Power [*]
---------------------------------------------------------------------------------------------
Xxxxxx Xxxxxxx , 00 XXx, 00 degrees [*]
---------------------------------------------------------------------------------------------
Remote IDU, 4x155 UTP, ANSI, AC [*]
---------------------------------------------------------------------------------------------
Remote ODU, 26GHz, Band 3, Standard Power [*]
---------------------------------------------------------------------------------------------
26 GHz, 1ft (30cm) Parabolic, Dual polarization [*]
---------------------------------------------------------------------------------------------
E1 CES Service Module, 8xG.703, AC [*]
---------------------------------------------------------------------------------------------
X0 XX Service Module, 6xG.703, AC [*]
---------------------------------------------------------------------------------------------
Ethernet Service Module, 4x10BaseT (RJ-45), AC [*]
---------------------------------------------------------------------------------------------
Local Site Manager, Single Copy, CD [*]
---------------------------------------------------------------------------------------------
Tel-View NMS, Single Seat License [*]
---------------------------------------------------------------------------------------------
[*] Confidential treatment requested
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Exhibit B
Prices (continued)
(Discount % to be determined)
MODEL 400 E1 Wireless Modem (5.8GHz) Unit Price
---------------------------------------------------------------------------------------------
MODEL 400-5 TERMINAL [*]
---------------------------------------------------------------------------------------------
Tel-Link Encore Non-protected 1+0 Terminal Unit price
---------------------------------------------------------------------------------------------
Tel-Link Encore 7GHz, Universal Capacity (2E1~4E1) [*]
---------------------------------------------------------------------------------------------
Tel-Link Encore 7GHz, Universal Capacity (8E1~16E1) [*]
---------------------------------------------------------------------------------------------
Tel-Link Encore 13/15GHz, Universal Capacity (2E1~4E1) [*]
---------------------------------------------------------------------------------------------
Tel-Link Encore 13/15GHz, Universal Capacity (8E1~16E1) [*]
---------------------------------------------------------------------------------------------
Tel-Link Encore 18/23/26GHz, Universal Capacity (2E1~4E1) [*]
---------------------------------------------------------------------------------------------
Tel-Link Encore 18/23/26GHz, Universal Capacity (8E1~16E1) [*]
---------------------------------------------------------------------------------------------
Conversion Panel (Non-Protected 8E1-16E1,120U to 75U ) [*]
---------------------------------------------------------------------------------------------
P-COM Service Module ( Contains the interface ports, RJ-45, for Full
Bridging Engineering Orderwire, P-COM NMS and a Data Channel) [*]
---------------------------------------------------------------------------------------------
SNMP Service Module w/2 Port 10BaseT Hub ( Contains the interface ports,
RJ-45, for Full Bridging Engineering Orderwire, NMS channel, Data channel and a
two port 00XxxxX Xxx) [*]
---------------------------------------------------------------------------------------------
SNMP Service Module w/4 Port 10BaseT Hub (Contains the interface ports,
RJ-45, for NMS channel, Data channel and a 4 port 10BaseT Hub) [*]
---------------------------------------------------------------------------------------------
Link Manager [*]
---------------------------------------------------------------------------------------------
Element Manager Software for the Tel-Link and Encore radio [*]
---------------------------------------------------------------------------------------------
[*] Confidential treatment requested
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Exhibit C
P-COM LETTER OF CREDIT GUIDELINES
We have indicated below those terms and conditions acceptable in a Letter of
Credit (LC) issued by your bank. You and your banks' efforts to comply with
these terms and conditions will help to ensure prompt dispatch of your order. If
your bank is unable to issue the LC within the following guidelines, please
contact us providing information on those areas that must be discussed. This
will help to minimize the cost and time involved in amendments, and avoid delay
after the LC has been opened.
1) The Letter of Credit is to be irrevocable and subject to the Uniform
Customs and Practice Documentary Credit (UCP) and its revisions,
International Chamber of Commerce (ICC) Publications Number 500.
GUIDELINE: YOUR BANK MOST LIKELY HAS ACCEPTABLE LANGUAGE TO THIS
EFFECT.
2) The Letter of Credit is to be ADVISED. Please request your Bank to
advise through:
XXXXX FARGO HSBC TRADE BANK, NA OPERATIONS
000 XXXXXX XXXXXX, 00XX XXXXX
XXX XXXXXXXXX, XX 00000
XXX
TELEX: 184904 XXXXX TELEX
SWIFT: XXXXXX0X
ATTN: Xx XXXXX XXXXX
000-000-0000
3) The Beneficiary of the Letter of Credit shall be:
P-COM, INC.
0000 X. XXXXXXXXXX XXXX.
XXXXXXXX, XX 00000
XXX
4) Expiry Date and Last Ship Date: Importers / Buyers should work closely
with their Contact at P-COM to negotiate proper Expiry Date and Last
Ship Date to be as extended as possible to avoid delays and amendments
at a later date. GUIDELINE: A MINIMUM 90 DAYS SHOULD BE ALLOWED FROM
LC ISSUE DATE TO THE LAST SHIP DATE AND A MINIMUM OF 21 DAYS BETWEEN
THE LAST SHIP DATE TO THE EXPIRY DATE.
[*] Confidential treatment requested
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Exhibit C
P-COM LETTER OF CREDIT GUIDELINES (continued)
5) The Letter of Credit shall include or reflect:
To be freely negotiable with reimbursement at the counter of any U.S.
Bank
The Drawee must be the Bank (with notice to the Applicant)
Shall expire in the country of the Beneficiary (USA)
To be payable "60-days Sight"
Payable in US currency (USD) only
Provide minimum 21 days after last ship date to present documents
Port of Departure: Any USA Airport (or other Country as applicable)
Banking charges outside the Applicant's (buyer / importer) country are
for the account of the Applicant (buyer / importer).
Consignee shall always be the Issuing Bank with (instructions to
notify Buyer)
Partial shipments and Transshipments are to be allowed
Insurance to be provided by the Buyer / Importer / Applicant (EXW)
Freight Terms shall be expressed as EX-WORKS (EXW) with freight
charges PAYABLE AT DESTINATION unless prior agreement with P-COM and
as reflected in the Purchase Order.
Description Of Goods should read (or similar language): COMMUNICATIONS
EQUIPMENT AS PER PURCHASE ORDER NO. DATED . NOTE: LC's
------ ------
REQUIRING COMPLETE DESCRIPTION OF EQUIPMENT MAY RENDER THE LC
UNACCEPTABLE AND DELAY SHIPMENT OF THE ORDER.
[*] Confidential treatment requested -
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Exhibit D
Return Material Process
Introduction
After a suspect unit is verified as faulty through the PCOM Technical
Services Group the faulty unit will be required have an RMA (Return
Material Authorization) issued. The P-COM return material process is
available to cover all P-COM supplied product, both in and out of warranty.
The service will be provided free of charge for units covered by warranty.
A RMA number is required for each item of equipment to be returned.
The process for returning a suspected faulty unit is by contacting the
P-COM RMA Logistics Dept. on x0-000-000-0000 during normal working hours
and requesting a Return Material Authorization (RMA) Number. To obtain a
RMA reference, the caller will be required to supply details regarding the
suspect unit.
No units shall be returned to P-COM without a RMA number, if they are they
will be quarantined and no repairs will begin on the unit(s) until an RMA
is issued.
In order that P-COM can provide an efficient return/repair facility, it is
most important that the return of suspected faulty units to the P-COM RMA
Logistics Center be as soon as possible after the failure has been
diagnosed.
Requesting a RMA Number
To obtain a RMA number, the representative should always ensure they have
the following information available regarding the suspect unit:
a) Serial Number
b) Part Number
c) Revision Level
d) Point of Failure (Installation & Commissioning or In-Service)
e) Description of fault (Summary)
f) Site name (from where unit originated)
g) Original customer support call reference number (if relevant)
h) The name of the Engineer diagnosing the problem (if possible)
As an alternative to calling P-COM customer support for an RMA number, the
fault report can be faxed to P-COM at 0-000-000-0000 marked for the "URGENT
ATTENTION" of the RMA Logistics Manager. The request will then be processed
and a copy of the fax will be returned stating the RMA number to be used to
return the product.
[*] Confidential treatment requested -
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Exhibit D
Return Material Process (continued)
It is the responsibility of the customer to recover the faulty unit from
site, pack it in adequate packaging (original P-COM packaging preferred)
and return it to the P-COM RMA Logistics Center. An PCOM fault report
(CIFR) clearly identifying the relevant P-COM RMA Number shall be included
with the returned unit.
Receipt of RMA Unit
On receipt of the RMA unit, it will be subjected to an inspection to check
for physical damage that may have been caused by mishandling or incorrect
use. This is required to determine whether the unit will be covered by
warranty or not. The warranty seals will also be checked and the details of
the inspection will be recorded on the Database. If the unit is considered
to be out of warranty due to any of the above reasons, it will be
identified as such on the database including the reason identified.
In the event that a requested RMA unit is not received within 1 month of
request, the RMA number may be cancelled.
RMA Process
Fault verification is conducted on a FIFO basis unless the customer has
requested a special investigation, and is initially conducted at ambient
temperature using other dedicated test units. If the reported fault cannot
be detected at ambient temperature, the unit will then be temperature
cycled as defined in the fault verification process before being identified
as No Fault Found. If the unit is found to contain a fault, it is then
repaired at the relevant repair center. If the unit is found to contain no
faults, it will be shipped back to the customer and subject to the No Fault
Found (NFF) charge.
Units which are received for the third time during their lifecycle are to
be investigated to see if the problems are with a specific module. If this
is the case, the module is to be replaced.
Repair of Units
All units subjected to repair are processed in accordance with QAP
06.00.017. All units returned to the repair center shall also have
mandatory ECO's incorporated. Mandatory ECO's are defined as improving
performance or reliability of the product but would exclude any additional
features. All repaired units are supplied with system test results
included. All repaired units have an extended warranty of 90 days from date
of completion of repair.
Out Of Warranty Repair Charges.
To be determined.
[*] Confidential treatment requested
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