EXHIBIT 10.17
COOPERATION AGREEMENT
REGARDING TELEMATICS
This Agreement is made and entered into on the last day set out below by and
between
Unwire AB (publ), 556522-7617, Xxx 0000, 000 00 Xxxxx, Xxxxxx, (hereinafter
referred to as "Unwire")
AND
Ericsson Business Consulting (Malaysia) Sdn Bhd, 474845-K, ISMA Ericsson Jalan
SS 7/19, Kelana Xxxx, 47301 Xxxxxxxx Xxxx, Xxxxxxxx, Xxxxx Xxxxx, Xxxxxxxx,
(hereinafter referred to as "Ericsson").
1. Definitions
For the purpose of this Agreement, the following words and terms shall have
the meanings set forth below:
1.1 The term "the Agreement" shall mean this agreement including its
appendices.
1.2 The term "Know-how" shall mean knowledge, experience, data, technology,
designs, techniques, drawings, software, and other information and
knowledge.
1.3 The term "Products" shall mean Unwire's telematics products set forth in
Enclosure 1.
1.4 The term "Program" shall mean the software developed by Unwire and
installed by Unwire in the Products.
1.5 The term "Shipment" shall mean that the Products have been delivered by
Unwire EXW at the place set out in Unwire's confirmation of Ericsson's
order (Incoterms 1990).
1.6 The term "Territory" shall mean the countries set forth in Enclosure 2.
2. Cooperation
2.1 Subject to the terms and conditions of this Agreement, the parties shall on
a non-exclusive basis cooperate regarding telematics, i.e., products that
enable telecommunication between devices.
2.2 The basis of the parties' cooperation is that Unwire develops and sells the
Products, and that Ericsson desires to purchase the Products for resale as
a part of complete solutions, and also desires to establish indirect
channels to resell such solutions through third party resellers.
2.3 In order to be able to resell the Products as a part of complete solutions,
Ericsson shall maintain sufficient competence to be able to integrate the
Products into complete solutions.
2.4 The parties also intend to jointly and independently develop applications
that can be downloaded into the Products.
2.5 Upon request by either party, the parties shall meet to discuss their
cooperation under this Agreement. Cooperation results that are achieved
shall be documented in the minutes from meetings, which shall be prepared
jointly by the parties.
2.6 For the cooperation under this Agreement, Ericsson shall make the following
persons available:
For the cooperation under this Agreement, Unwire shall make the following
persons available:
...................
...................
Replacement of personnel may only occur with the permission of the
other party.
3. Grant
3.1 Subject to the terms and conditions of this Agreement, Unwire hereby grants
to Ericsson the non-exclusive right to market and sell the Products in the
Territory. Unwire reserves the right to market and sell the Products
directly to customers within the Territory. Unwire shall pay no commission
or other compensation to Ericsson for such direct sales.
3.2 Subject to the terms and conditions of this Agreement, Unwire grants to
Ericsson a non-transferable and non-exclusive license to (either directly
or indirectly through any of its partners) develop by itself or jointly
with Unwire new software for the Products and to market and sell such
software only as an integral part of the Products.
3.3 Subject to the terms and conditions of this Agreement, Ericsson grants to
Unwire a non-transferable and non-exclusive right, unlimited in time, to
freely manufacture, market and sub-license any software developed by
Ericsson for the Products and any software developed jointly by the parties
for the Products. Ericsson shall supply to Unwire the source code and other
documentation relating to such software developed by Ericsson as soon as it
has been developed.
4. New Products
4.1 New products which are marketed by Unwire, shall be covered by the
Agreement after written agreement between the parties.
5. Legal relationship of the parties
5.1 Ericsson shall buy the Products as an independent contractor and shall sell
the Products in its own name, on its own account and at its own risk.
Ericsson may not in any respect represent Unwire or enter into any
agreement or other commitment on Unwire's behalf.
6. Orders and deliveries
6.1 Ericsson's orders shall be made in writing. After receipt of an order,
Unwire shall in writing within five (5) days either confirm the order or
inform Ericsson that Unwire cannot accept the order.
6.2 Shipment of Products shall be made within the time period set forth in
Unwire's confirmation of Ericsson's order.
6.3 If the delivery of the Products is delayed and such delay is due to Unwire,
Ericsson shall be entitled to liquidated damages calculated for each full
week of the duration of the delay at the rate of half a (0.5) percent of
the price for the delayed Products. However, the liquidated damages may not
exceed a total of five (5) percent of the price for the delayed Products.
6.4 Unwire's liability or fault due to a delayed Shipment is limited to the
above-mentioned liquidated damages and Ericsson cannot make any other
claims against Unwire on the grounds of a delayed Shipment. This does not,
however, limit Ericsson's right to terminate the Agreement in accordance
with section 25 below.
7. Ericsson's sales efforts
7.1 Ericsson shall make its best efforts to market and sell the Products within
all markets of the Territory.
7.2 Each calendar year, Ericsson shall buy and sell the Products to the extent
set forth in Enclosure 3. Should Ericsson not comply with the
aforementioned requirement, the Supplier may, by giving six months written
notice, terminate this Agreement. No other remedy may be invoked.
7.3 The remedy provided for above may be invoked against Ericsson only if
Unwire gives Ericsson notice thereof no later than 30 days after Unwire has
been informed of such non-fulfillment.
8. Price and terms of payment
8.1 Ericsson shall purchase the Products EXW at the place set out in Unwire's
confirmation of Ericsson's order (Incoterms 1990).
8.2 Ericsson shall buy the Products at the prices and in the currencies set
forth in the periodically updated price list from Unwire. The current price
list is attached hereto as Enclosure 4. Changes in prices shall take
effect, at the earliest, thirty (30) days after Ericsson has received
written notice to that effect.
8.3 Ericsson shall pay for all Products, at the latest, ten (10) days after the
invoice date specified in Unwire's invoice. In the event that Ericsson
should at any time fail to make payment in full on the due date, Unwire
shall be entitled to claim interest on the sum overdue until payment is
made at the rate of eight (8) percent per annum plus the three months
XXXXXX interest rate quoted each day at or about 11:00 am in Stockholm,
Sweden.
9. Warranty
9.1 Unwire undertakes and warrants that the Products shall at all times be free
from defects in design, materials and workmanship, provided
a) that the Products have not been subject to misuse or neglect by
Ericsson or its customers or
b) that the Products have not been altered or repaired other than by
Unwire or with its approval.
9.2 Unwire shall, at its own option and cost, repair or replace any Products
found to be faulty by reason of defective design, materials or workmanship
for a warranty period of one (1) year starting from the date of Shipment of
such Products. Such replacement or repair of Products shall be made by
Unwire as soon as Ericsson has notified Unwire of the defect, but in no
event later than fourteen (14) days if the Products are in stock and thirty
(30) days if the Products are not in stock.
9.3 The warranty for repaired or replaced Products shall be treated as set
forth in subsections 9.2 and 9.3.
9.4 Unwire's liability or fault due to defective Products is limited to that
stipulated above and Ericsson cannot make any other claims against Unwire
on the grounds of Products being defective. This does not, however, limit
Ericsson's right to terminate the Agreement in accordance with section 25
below.
10. Returned Products
10.1 Products rejected under a warranty claim shall at Unwire's option be
delivered to Unwire at its expense and risk.
10.2 All returned Products shall be accompanied by a report issued by Ericsson
stating the reason for the return of the Products.
10.3 Unwire shall reimburse all payments made by Ericsson for Products returned
to Unwire, in accordance with the preceding section, within thirty (30)
days from the date that Unwire has received the returned Products.
11. Discontinuance of supply
11.1 Unwire may not during the life of the Agreement discontinue the supply of
any of the Products covered by the Agreement. Notwithstanding the
foregoing, Unwire may discontinue the supply of a Product covered by the
Agreement if the Product is no longer a part of Unwire's product line or if
it is no longer profitable to manufacture the Product for sales within the
Territory.
12. Subdistributors and partners
12.1 Ericsson shall not appoint subdistributors, agents or other intermediaries
in the Territory without Unwire's prior written consent. Such consent may
only be withheld on objective and qualitative grounds. If Ericsson appoints
subdistributors, agents or other intermediaries, Ericsson shall cause the
intermediary to act in every respect in conformity with the provisions of
this Agreement. Ericsson is responsible for any act or omission by the
intermediary. Unwire shall have no responsibility in this respect.
12.2 Ericsson shall not allow a partner to develop software in accordance with
section 3.2 above, without Unwire's prior written consent. Such consent may
only be withheld on objective and qualitative grounds. If Ericsson allows a
partner to develop software in accordance with section 3.2 above, Ericsson
shall cause the partner to act in every respect in conformity with the
provisions of this Agreement. Ericsson is responsible for any act or
omission by the partner. Unwire shall have no responsibility in this
respect.
13. Forecasts
13.1 Ericsson shall in November of each year furnish Unwire with a sales
forecast containing Ericsson's intended sales volumes for the subsequent
calendar year. In addition hereto, Ericsson shall one month before the
beginning of every calendar quarter furnish Unwire with a sales forecast
covering the subsequent calendar quarter.
14. Information
14.1 Ericsson shall every six months furnish Unwire with a written business plan
containing information on the marketing and sales efforts to be undertaken
by Ericsson during the next six month period and a brief market analysis of
the Products for the next six month period. In addition hereto, Ericsson
shall inform Unwire about whether Ericsson is developing, manufacturing or
selling any products that may compete with the Products or is furthering
the development, manufacture or sale of such competing products by a third
party.
15. Marketing
15.1 Ericsson shall, at its own expense, market the Products and participate in
sales conferences arranged by Unwire and in fairs and exhibitions of
importance to the marketing of the Products. Unwire shall to a reasonable
extent and free of charge assist Ericsson at exhibitions and demonstrations
of the Products.
15.2 Unwire shall, to the extent Unwire deems necessary, provide Ericsson with
brochures, catalogs, drawings, samples and other sales promotion materials
concerning the Products. Sales promotion materials prepared by Ericsson
shall be approved by Unwire before use.
16. Service
16.1 Ericsson shall, at its own cost, create and maintain a suitable service
organization for the Products throughout the entire Territory. This means
that Ericsson shall be responsible for all contacts with customers and for
accepting all Products returned by customers due to the Products being
defective. When a customer returns a defective Product, Ericsson shall
replace such Product no later than three days after the customer has
returned the Product to Ericsson. Ericsson undertakes at all times to keep
in stock at least three (3) percent of Ericsson's yearly sales of the
Products, which amounts to approximately ... SEK.
17. Training and support
17.1 For the sale of the Products, Unwire shall provide training regarding the
Products to the extent set forth in Enclosure 5. Traveling and living
expenses for Unwires personnel shall be borne by Ericsson. For
training Ericsson shall pay to Unwire SEK 1,100 per hour if else not
agreed.
17.2 For the use of the Products (including the Program) and development of new
software for the Products, Unwire shall provide support to the extent set
forth in Enclosure 6. For such support, Ericsson shall pay to Unwire a fee
of SEK 1,100 per hour (exclusive of value-added tax) and reimbursement for
traveling and living expenses.
18. Changing the Products
18.1 Ericsson shall not remove or change any trademark, trade name, sign or
other xxxx on any Product or its packaging or make any alterations in the
construction or design of any Product.
19. Trademarks and other industrial property rights
19.1 Ericsson shall use Unwire's trademarks and trade names when marketing the
Products. The right and obligation to such use is limited to the period of
the Agreement. Ericsson shall not use any other trademark in conjunction
with Unwire's trademarks. Ericsson shall not acquire any rights whatsoever
in Unwire's trademarks.
19.2 Unwire has ownership of and all other rights to the Products, the Program
and any new software developed by Unwire for the Products, including all
copyright and Know-how relating in any way to the Products, the Program and
the new software developed by Unwire for the Products. Through this
Agreement, Ericsson does not acquire any right whatsoever to Unwire's
copyright, patents, trade secrets or other intellectual property rights.
19.3 Ericsson has ownership of and all other rights to any new software
developed by Ericsson for the Products, including all copyright and
Know-how relating in any way to the new software developed by Ericsson for
the Products. Through this Agreement, Unwire does not acquire any right
whatsoever to Ericsson's copyright, patents, trade secrets or other
intellectual property rights.
19.4 The parties have joint ownership of and all other rights to any new
software developed jointly by the parties for the Products, including all
copyright and Know-how relating in any way to the new software developed
jointly by the parties for the Products.
19.5 Unwire assumes no liability, whether express or implied, for the Products'
(including the Program and any new software developed by Unwire for the
Products) infringement upon present or future patents or other industrial
property rights in the Territory of any third party. Ericsson assumes no
liability, whether express or implied, for any infringement (upon present
or future patents or other industrial property rights in the Territory of
any third party) caused by software developed by Ericsson.
19.6 Either party shall without delay inform the other party of any infringement
or suspected infringement in the Territory of the parties' patents or other
industrial property rights. Neither party is, however, obliged to defend
its or the other party's rights.
20. Right to use the Program
20.1 Subject to the terms and conditions of this Agreement, Unwire grants to
Ericsson a non-transferable and non-exclusive license within the Territory
to grant (either directly or indirectly through a subdistributor) a
non-transferable and non-exclusive license to customers to use the Program
when using the Product.
20.2 Ericsson is only entitled to use the Program in accordance with the license
set forth under section 20.1 above and is thus, among other things, not
allowed to
a) modify, amend, alter, revise, enhance or otherwise change the Program,
b) take any action, such as reverse assembly or reverse compilation, to
derive a source code equivalent to the Program's,
c) copy, sell, license, sub-license, rent, lend or otherwise dispose of
the Program,
d) make the Program or any portion thereof available to any third party,
and
e) use the Program in a way that would endanger its quality as a trade
secret.
20.3 Ericsson may only grant sub-licenses on terms and conditions that are
compatible with the provisions of this Agreement, and Ericsson shall be
responsible towards Unwire for the fulfillment by the sub-licensees of such
terms and conditions. Thus, Ericsson shall be responsible for the
subdistributors granting sub-licenses to customers on terms and conditions
that are compatible with the provisions of this Agreement
20.4 Unwire has a right to update (including amending and modifying) the Program
through downloading software by radio. Ericsson is responsible for ensuring
that subdistributors and customers that purchase the Products allow Unwire
to update (including amending and modifying) the Program through
downloading software by radio
21. Documents
21.1 Any documentation, such as documents, drawings or other data bearing media
and software programs (including information or drawings stored in or made
by software programs) submitted to Ericsson by Unwire shall remain Unwire's
exclusive property and shall be returned to Unwire upon request.
22. Secrecy
22.1 The parties agree without any limitation in time not to reveal to any third
party Confidential Information, which a party obtains from the other party
in accordance with this Agreement.
22.2 "Confidential Information" refers in this Agreement to any item of
information - technical, commercial or of any other nature - regardless of
whether or not such information has been documented or not, with the
exception of
a) information, which is generally known or which becomes a matter of
general knowledge in a manner other than through the party's breach of
the provisions of this Agreement,
b) information, which the party can prove that he possessed before he
received it from the other party, and
c) information, which the party received or will receive from a third
party when the party does not have a duty of secrecy to such party.
22.3 In cases referred to by c) above, the party is not however entitled to
reveal to third parties that the same information has been received from
the other party pursuant to this Agreement.
22.4 Both parties agree to ensure that its employees, consultants, board members
and other representatives for the party do not disclose Confidential
Information to third parties. The parties are thus under a duty to ensure
that persons who can be expected to come into contact with information of a
confidential nature are required to keep such information secret to the
same extent that this Agreement requires the parties themselves to do so.
22.5 Ericsson may only use Confidential Information, which has been supplied by
Unwire, to sell the Products and to develop software for the Products in
accordance with this Agreement.
23. Assignment of the Agreement
23.1 Neither party may wholly or partly assign or pledge its rights and
obligations under the Agreement to any third party except with the prior
written consent of the other party.
24. Term
24.1 The term of this Agreement commences upon the signature of both parties and
continues until ... .The Agreement will be renewed for additional
successive renewal periods of one year unless either party gives written
notice, at least six months prior to the expiration of the preceding
period, that the Agreement shall cease to exist.
25. Premature termination due to breach of contract, etc.
25.1 Without prejudice to any remedy it may have against the other for breach or
non-performance of the Agreement, either party shall have the right to
terminate the Agreement by giving the other party no less than thirty (30)
days notice in writing
a) if the other party should commit or permit a breach or non-performance
of essential importance to the other party and should fail to remedy
such breach within 10 days after receipt of written notice,
b) if the other party should enter into liquidation, either voluntary or
compulsory, or become insolvent or enter into composition or corporate
reorganization proceedings or if execution is levied on any goods and
effects of the other party or the other party should enter into
receivership, or
c) if the ownership of the other party is materially changed.
25.2 Notice of termination shall be given without undue delay after the
circumstance constituting the breach was or should have been known to the
aggrieved party.
26. Consequences of termination
26.1 At the termination of the Agreement, Unwire may at its option repurchase
all or a part of the stock of Products, which Ericsson may have at such
time, at prices equal to the prices Ericsson paid when purchasing the
Products from Unwire.
26.2 If Unwire chooses not to repurchase the Products in accordance with the
preceding paragraph, Unwire shall complete all orders received before the
termination of the Agreement and Ericsson is free to dispose of Products in
stock after the termination of the Agreement. Notwithstanding that delivery
by Unwire might be made after the termination of the Agreement, the
provisions of the Agreement shall apply to such deliveries.
27. Force majeure
27.1 The parties shall be relieved from liability for a failure to perform any
obligation under the Agreement during such period and to the extent that
the due performance thereof by either of the parties is prevented by reason
of any circumstance beyond the control of the parties, such as war, warlike
hostilities, mobilization, civil war, fire, flood, changes in laws and
regulations or in the interpretation thereof, acts of authorities, labor
disputes, blockades, major accidents or other circumstances of similar
importance.
27.2 The party desiring to invoke an event of force majeure shall give immediate
notice to the other party of the commencement and the cessation of such
event of force majeure, failing which the party shall not be discharged
from liability for any non-performance caused by such event of force
majeure.
28. Limitation of liability
28.1 The parties shall not be liable for any indirect, incidental, or
consequential damages, including, without limitation, any lost profits,
data or income, arising out of or in connection with this Agreement.
28.2 The parties' liability for damages payable to the other party shall only
cover compensation for direct loss and shall not exceed a total of fifteen
(15) percent of the price of the Products so far delivered under the
Agreement. This limitation does not include interest and liquidated
damages.
28.3 The limitation of liability for damages under this section is not
applicable with respect to damages which arise in connection with a breach
of section 19 (Trademarks and other industrial property rights), section 20
(Right to use the Program) section 21 (Documents) and section 22 (Secrecy).
29. Governing law
29.1 The Agreement shall be construed in accordance with and be governed by the
laws of Sweden.
30. Notices and language
30.1 Any notice, request, consent and other communication to be given by a party
under the Agreement (hereinafter called a "Notice") shall be in the English
language and deemed to be valid and effective if personally served on the
other party or sent by registered prepaid airmail or by telefax to the
addresses and fax numbers set forth in Enclosure 7.
30.2 A Notice shall be deemed to have been given:
a) in the case of personal service: at the time of service;
b) in the case of prepaid registered mail: at the latest, seven days
after the date of mailing; and
c) in the case of telefax: on the date the telefax is sent, provided
receipt is confirmed by the other party.
30.3 Changes of address are to be notified as set out in this provision.
31. Headings
31.1 The division of the Agreement into separate articles and the insertion of
headings shall not affect the interpretation of the Agreement.
32. Amendments
32.1 Only those amendments and additions to the Agreement that are made in
writing and signed by the parties are valid.
33. Entire Agreement
33.1 The Agreement constitutes the entire agreement between the parties on all
issues to which the Agreement relates. The contents of the Agreement
supersede all previous written or oral commitments and undertakings.
34. Severability
34.1 If any provision of the Agreement or part thereof shall to any extent be
or become invalid or unenforceable, the parties shall agree upon any
necessary and reasonable adjustments of the Agreement in order to secure
the vital interests of the parties and the main objectives prevailing at
the time of execution of the Agreement. Failing an agreement between the
parties on adjustments of the Agreement, such adjustments shall be made
by arbitrators in accordance with the provisions of the arbitration
clause in the Agreement.
35. Waiver
35.1 No consent or waiver, express or implied, by either party of any breach or
default of the other party in performing its obligations under the
Agreement shall be deemed or construed to be a consent or waiver of any
other breach or default by the other party of the same or any other
obligation hereunder. Any failure by one party to complain of any act or
failure to act of the other party or to declare that other party in default
shall not constitute a waiver by the first party of its rights under the
Agreement. No waiver of any rights under the Agreement shall be effective
unless in writing and signed by the party purporting to give the same.
36. Arbitration
36.1 Any dispute, controversy or claim arising out of or in connection with this
contract, or the breach, termination or invalidity thereof, shall be
settled by arbitration in accordance with the Rules of the Arbitration
Institute of the Stockholm Chamber of Commerce.
36.2 The place of arbitration shall be Stockholm.
36.3 The language to be used in the arbitral proceedings shall be English.
37. Miscellaneous
37.1 This Agreement is conditional upon the approval of Unwire's board of
directors.
The Agreement has been executed in two copies of which the parties have taken
one each.
Stockholm, December..., 1999 Stockholm, December..., 1999
UNWIRE AB (PUBL) ERICSSON BUSINESS CONSULTING
(MALAYSIA) SDN BHD
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PS/990028-005
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[GRAPHIC OMITTED]
DIRECTION DES OPERATIONS ET DU DEVELOPPEMENT
DIRECTION DES ACHATS ET DU CONTROLE DE GESTION
00-00 XXXXXXXXX XXXXXX XXXXXXX
00000 XXXXX CEDEX 14
CONTRACT 99 8G ...
Experimentation of the
----------------------
"GSM LOCALISATION" service
Supplier :
CELLPOINT SYSTEMS AB
--------------------------------------------------------------------------------
BETWEEN :
FRANCE TELECOM,
A "societe anonyme" i.e. French-law joint stock company, with
capital of 4,098,458,244 EUROS, entered on the Trade and
Companies Register of Paris, France, under the n(degree) 380
129 866, whose address for service for the purposes of the
present contract is 00-00 Xxxxxxxxx Xxxxxx Xxxxxxx - X-00000
Xxxxx cedex 14, represented by the signatory of the present
Contract,
AND
CELLPOINT SYSTEMS
Company : Cellpoint Systems AB
With capital of :
..................................................................
Entered on the Trade and Companies Register of :
..................................................................
Registered office : Xxxxxxxxxxxxxxxx 0, 000 00 Xxxxxxxxxx , Xxxxxx
Represented by : Xxx Xxxxxxx
Hereinafter "the Parties"
IT HAS BEEN AGREED AND DECIDED AS FOLLOWS :
==================================================
TABLE OF CONTENTS
==================================================
DEFINITIONS 4
ARTICLE 1 - PURPOSE OF THE CONTRACT 5
ARTICLE 2 - EXECUTION OF THE SERVICES 5
ARTICLE 3 - TERM OF THE CONTRACT 5
ARTICLE 4 - THE PARTIES' OBLIGATIONS 6
ARTICLE 5 - CONTRACTUAL DOCUMENTS 6
ARTICLE 6 - AMOUNT OF THE CONTRACT 7
ARTICLE 7 -TERMS AND CONDITIONS FOR DRAWING UP PRICES 7
ARTICLE 8 - LETTERS OF ORDER 8
ARTICLE 9 - INVOICING 8
ARTICLE 10 - METHODS OF PAYMENT 8
ARTICLE 11 - TERMS AND CONDITIONS OF PAYMENT 9
ARTICLE 12 - PROGRESS REPORT 9
ARTICLE 13 - HOST SITES 9
ARTICLE 14 - VALIDATION OF OPERATIONS 10
ARTICLE 15 - QUALITY CRITERIA 10
ARTICLE 16 - EXCLUSIVITY 10
ARTICLE 17 - LIABILITY 11
ARTICLE 18 - RIGHTS ARISING FROM INTELLECTUAL CREATION 11
ARTICLE 19 - THE YEAR 2000 14
ARTICLE 20 - COMPETENCE 14
ARTICLE 21 - LANGUAGE 14
ARTICLE 22 - RIGHT OF TRANSFER 14
ARTICLE 23 - INTEGRALITY 15
ANNEXE 1 : SPECIFICATIONS 16
ANNEXE 2 : PRICE LIST 17
ANNEXE 3 : TESTS SPECIFICATIONS 18
ANNEXE 4 : TECHNICAL SPECIFICATIONS 19
ANNEXE 5 : STANDARD TERMS AND CONDITIONS OF PURCHASE 20
==================================================
DEFINITIONS
==================================================
BLOCKING IRREGULARITY: This means an irregularity making it impossible to issue
the Official Technical Appraisal Report.
SPECIFICATIONS: This means the document issued by FT setting out the technical
and operational specifications for the localisation service.
TECHNICAL APPRAISAL: This means the technical tests carried out by FT with the
assistance of Cellpoint Systems, making it possible to issue the official
Technical Appraisal Report.
EXPERIMENTATION: This includes the Technical Appraisal phase and commercial
experimentation.
COMMERCIAL EXPERIMENTATION: Commercial experimentation follows acceptance of
the Technical Appraisal. This phase makes it possible to carry out
experimentation under real localisation service conditions as defined in the
specifications.
ORDER LETTER: This is the document issued by FT, binding it firmly. It sets out
the price, the types of services, the quantities and the time-limits for
providing them.
MAINTENANCE: This means all services and action ensured by Cellpoint Systems,
in order to ensure maximum reliability of the System.
OFFICIAL TECHNICAL APPRAISAL REPORT: This is a document drawn up by FT, signed
by the Parties, officially acknowledging delivery of the system and making it
possible to declare acceptance of the latter.
OFFICIAL EXPERIMENTATION ACCEPTANCE REPORT: This is a document drawn up by FT,
signed by the Parties, officially acknowledging acceptance of Experimentation,
and making it possible to declare said acceptance of the system, possibly
accompanied by reserves.
SERVER: This refers to Cellpoint Systems' platform. This platform is the
support which makes it possible to check that Cellpoint Systems' services are in
conformity with the operational and technical specifications set out in the
contractual documents. The Server is made up of the actual platform itself and
the associated software.
TECHNICAL SPECIFICATIONS: This is the document issued by Cellpoint Systems,
containing all of the technical information inherent to the System being
experimented.
SYSTEM: This refers to all of the means (software, material and equipment,
operating environment) necessary for the supply of the GSM localisation service,
and all of the means which Cellpoint Systems hereby undertakes to made available
to FT, which shall be in conformity with that which is defined in the present
contract in terms of resources, capacities, and functions.
TECHNICAL TESTS: This refers to all of the tests carried out by FT during the
Technical Appraisal, as defined in the Tests specifications (appendix 3).
ARTICLE 1 - PURPOSE OF THE CONTRACT
-----------------------------------
The purpose of the present contract is to entrust Cellpoint Systems with the
execution of services necessary for Experimentation by FT of a fleet
localisation and management GSM service, as defined in the specifications under
the reference number FTM/DIP/SVA/PR/98/loc/CDC-CPS dated 22 December 1998.
The parties hereby expressly agree that the present contract shall only be
entered into for the purpose of carrying out Experimentation, and that the
provisions thereof do not stipulate that the parties undertake to enter into a
contract again, under any form whatsoever, for the purpose of operating the
service concerned by Experimentation, commercially.
ARTICLE 2 - EXECUTION OF THE SERVICES
-------------------------------------
The present contract is made up of two batches, one of which is conditional.
- BATCH 1: TECHNICAL APPRAISAL
FTM shall carry out the Technical Tests for the GSM localisation system proposed
by Cellpoint Systems. These technical tests shall be carried out in Cellpoint
Systems' premises in Sweden. This phase shall begin on 3 May 1999, and end when
FTM issues the official Technical Appraisal Acceptance Report. This phase shall
last 10 business days.
- BATCH 2 : COMMERCIAL EXPERIMENTATION
This phase shall be subject to FTM's issuing an Official Technical Appraisal
Acceptance Report. It shall begin at the latest one month after said official
report has been issued, and shall end either when FTM issues the Official
Experimentation Acceptance Report, or on October 3. This phase shall last 60
calendar days.
ARTICLE 3 - TERM OF THE CONTRACT
--------------------------------
The contract shall take effect on 3 May 1999, and shall end on the first of the
two following dates:
- The date on which the Official Experimentation Acceptance Report is
issued
- 3 October 1999, if the Official Experimentation Acceptance Report has
not been issued at said date.
ARTICLE 4 - THE PARTIES' OBLIGATIONS
------------------------------------
4.1. Cellpoint Systems' Obligations
In order to enable FT to carry out the Technical Tests and commercial
Experimentation of the GSM localisation system, Cellpoint Systems shall supply
and/or make available to FT, continuously, throughout the entire term of the
present contract, unless the parties agree otherwise :
o the GSM localisation service as defined in appendix 1; to do so, Cellpoint
Systems hereby undertakes to make available to FTM the system as described
in appendix 4, principally made up of a Cellpoint Systems server linked up
to the Itineris network, and to operate and maintain it. This server shall
be configured to manage 200 localisations per user per month and support 50
000 users;
technical assistance - Cellpoint Systems hereby undertakes to provide FT,
as of the contract's coming into effect, with a telephone hotline number
and to ensure this assistance service during business hours and business
days i.e. 5 days per week from 8 a.m. until 7 p.m. (French time). Technical
assistance shall be provided in the French or English languages;
o with all elements and information required for the production of SIM cards,
responsible for adequate SIM Tool Kit implementation;
o support for the FT Hot Line;
o all documentation concerning the System which FT might require in order to
carry out Experimentation of the GSM localisation service;
o training - during the commercial Experimentation phase, Cellpoint Systems
shall ensure 5 days of training, in the English language to 5 persons
representing FT.
4.2. FT 's Obligations
FT hereby undertakes to :
o provide test customers, responsible for testing the service during the
commercial experimentation phase, with compatible STK terminals equipped
with SIM cards, including downloading of the STK application, subject to
Cellpoint Systems providing all elements necessary for the production of
said SIM cards.
o provide technical documentation to each user of the service at the
beginning of the commercial experimentation phase.
o provide geographical configuration data for the network.
ARTICLE 5 - CONTRACTUAL DOCUMENTS
---------------------------------
With respect to interpretation of the present contract, the body of the contract
shall prevail over the content of the appendices, and the contractual documents
are, by decreasing order of priority, as follows :
1 - The text of the present contract and its appendices :
o Appendix n(degree)1 - Operational Specifications bearing the reference
: FTM/DOD/SES/PR/002
o Appendix n(degree)2 - The price list - Commercial proposal bearing the
reference number :
o Appendix n(degree)3 - CPS Tests Specifications bearing the reference
number :
o Appendix n(degree)4 - CPS Technical Specifications bearing the
reference number :
o Appendix n(degree)5 - FT's Standard Terms and Conditions of Purchase -
December 1998 Edition
2 - Order letters
ARTICLE 6 - AMOUNT OF THE CONTRACT
----------------------------------
The amount of orders to be placed by FT under the present contract shall be
between :
a minimum of : 1,213,520 FF before tax
i.e. : one million two hundred and thirteen thousand five hundred and twenty
French francs before tax
a maximum of : 1,500,000 FF before tax
i.e. : one million five hundred thousand French francs before tax
Only the minimum amount of orders shall constitute a firm undertaking for FT.
ARTICLE 7 - TERMS AND CONDITIONS FOR DRAWING UP PRICES
------------------------------------------------------
7.1. Determining prices
The price of the contract shall be determined on the basis of the unit price
shown in the price list appended to the present contract (Appendix 2). This is a
firm, final price, drawn up in French francs. Invoicing and payments shall be
made exclusively in French francs.
7.2. Price list
The price list is an open one and may be completed if necessary by FT.
7.3. X25 links
Should it be necessary for X25 links to be set up by Cellpoint Systems for the
execution of the present contract, the parties hereby agree that Cellpoint
Systems shall be responsible for ordering and installing them. FT hereby
undertakes to reimburse Cellpoint Systems, on presentation of an invoice, for
the amounts involved in the installation, opening, subscription and consumption
of these lines. The X25 links may only be used by Cellpoint Systems for the
execution of services covered by the present contract. At the term of the
contract, or if the latter is terminated for any reason whatsoever, Cellpoint
Systems shall have a maximum time limit of fifteen days to inform Global One of
the termination of contracts relating to execution of the present contract.
Should Cellpoint Systems fail to comply with this time limit, it shall incur all
costs connected to the X25 links, as of the term of the present contract or the
date on which it is terminated.
7.4. Tax
The price of the present contract shall be subject to value added tax (V.A.T.)
at the legal rate in force on the date of invoicing.
ARTICLE 8 - LETTERS OF ORDER
----------------------------
Letters of order issued shall bear :
- reference to the present contract, a number, a date.
- the designation, reference and price of the service ordered, in
conformity with Cellpoint Systems' offer.
- the places and time limits for delivery.
Throughout the entire term of the contract, FT may issue orders. If the duration
of an order is greater than that of the present contract, the clauses of the
present contract concerning execution or interpretation of the order shall
remain in force until the order expires.
ARTICLE 9 - INVOICING
---------------------
The services shall be paid, on presentation of an invoice. Invoices concerning
payment shall be sent in triplicate to the following address :
FRANCE TELECOM MOBILES
DCCG - SERVICE COMPTABILITE
00-00, XXXXXXXXX XXXXXX XXXXXXX
X-00000 PARIS CEDEX 14
Cellpoint Systems shall, obligatorily, set out the reference numbers of the
contract on all invoices, in order to facilitate payment thereof. Cellpoint
Systems shall indicate, on its invoice, the date payment must take place. This
date shall be equal, at the earliest, to t + 60 days, "t" being the date of
issue of the invoice by Cellpoint Systems, and the latter date shall not be
prior to the occurrence giving rise to the drawing up of the invoice.
ARTICLE 10 - METHODS OF PAYMENT
-------------------------------
FT shall properly settle all amounts due under the present contract, by bank
transfer thereof to an account opened in the name of Cellpoint Systems, the
reference numbers of which shall be shown on each of the invoices. Full payment
shall only be made on condition that FT deems that the Experimentation results
are in conformity with those defined in the present contract.
Should, at the term of this contract, FT decide to enter into a contract with
Cellpoint Systems to provide its customers with the GSM localisation service,
Cellpoint Systems hereby undertakes to draw up a credit note for FT
corresponding to the amount of the present contract, and to deduct it from the
first invoice concerning the commercial start-up contract, and the following
invoices if necessary.
Should the Official Experimentation Acceptance Report not be issued before
October 3, Cellpoint Systems shall be bound to reimburse FT for all amounts paid
to it by FT under the present contract.
ARTICLE 11 - TERMS AND CONDITIONS OF PAYMENT
--------------------------------------------
Invoices shall be issued in accordance with the following terms and conditions:
-----------------------------------------------------------------------
Occurrences giving rise to payment Payments
-----------------------------------------------------------------------
Signature of contract by both parties 20%
-----------------------------------------------------------------------
Official Technical Appraisal Acceptance Report 30%
-----------------------------------------------------------------------
Official Experimentation Acceptance Report 50%
-----------------------------------------------------------------------
ARTICLE 12 - PROGRESS REPORT
----------------------------
Cellpoint Systems hereby undertakes to supply every 15 days, a detailed report
setting out :
- services executed
- a detailed schedule of tasks to be continued or begun
- indicator follow-up
The reports shall be sent by Fax to Xx Xxxxxxx XXXX (N(degree) 01 55 22 23 43).
A final overall report shall be supplied by Cellpoint Systems five days before
Experimentation is deemed to have finished, in order to allow for issue of the
Official Experimentation Acceptance Report.
ARTICLE 13 - HOST SITES
CELLPOINT SYSTEMS
Sofielundsvagen 0
X-000 00 Xxxxxxxxxx
Xxxxxx
The server shall be installed on the abovementioned host site, in premises
fitted out by Cellpoint Systems, at its own expense and under its own
responsibility, for the purpose of being equipped with telecommunications
infrastructure equipment. Should the equipment be moved, Cellpoint Systems
hereby undertakes to inform FT at least one month in advance, before moving
begins. Cellpoint Systems hereby undertakes to carry out said moving of
equipment, without interrupting the service.
It shall be Cellpoint Systems' responsibility to take all measures necessary to
prevent accidents, which could harm the proper operation of the present
contract.
Cellpoint Systems hereby undertakes to grant unrestricted access to the entire
system hosted in its premises, to any FT personnel who may have to work there.
ARTICLE 14 - VALIDATION OF OPERATIONS
-------------------------------------
- Stage 1 : The Official Technical Appraisal Acceptance Report shall only be
issued if any blocking irregularity, preventing operations, detected by FT,
shall have been corrected by Cellpoint Systems and FT shall have lifted the
reserves corresponding to it.
Technical Tests to be carried out are set out in a document called " Tests
Specifications ", set up beforehand by FT in collaboration with Cellpoint
Systems. FT reserves the right to carry out tests not provided for in the Tests
Specifications. Any such tests shall be taken into consideration, in agreement
with Cellpoint Systems, in the same manner as the tests initially provided for,
for the purposes of issuing the Official Technical Appraisal Acceptance Report.
By joint agreement, between the parties, these tests shall then be included in
the "Tests Specifications".
- Stage 2 : The Official Experimentation Acceptance Report shall only be issued
by FT where the level of quality attained makes it possible to give approval for
implementation of the service.
Any irregularities discovered shall be corrected gradually as commercial
Experimentation is carried out, by Cellpoint Systems. The means implemented by
Cellpoint Systems shall result in a service in conformity with, and suitable
for, the criteria set out beforehand in the specifications.
ARTICLE 15 - QUALITY CRITERIA
-----------------------------
Cellpoint Systems shall meet FT's quality criteria, by undertaking to supply a
service which complies with the indicators as defined in the Tests
specifications appended to the present contract. FT hereby reserves the right,
at all times, to point out shortcomings in the quality of the services supplied
to Cellpoint Systems. In agreement with FT, Cellpoint Systems shall immediately
take all steps it sees fit to re-establish a level of quality in conformity with
contractual undertakings.
Quality criteria during the period of commercial Experimentation shall be as
follows :
- Rate of service up-time : 99% - 7 days a week from 2 a.m. until
midnight
- Rate of localisation handled by the server : 99%
- Customer Support commitment to reply within 2 hours. Customer Support
available 5 days a week from 8 a.m. until 7 p.m. (French time)
ARTICLE 16 - EXCLUSIVITY
------------------------
Throughout the entire period of Experimentation and for 4 months after it ends,
Cellpoint Systems hereby undertakes
- to refrain from entering into a contract with an FT competitor, on French
territory, for the GSM fleet localisation service, whether directly or
indirectly, for the purpose of carrying out Experimentation, or a
commercialisation phase
- to refrain from entering into a contract with an FT competitor, on French
territory, for any other service arising from the system,whether directly or
indirectly, for the purpose of carrying out Experimentation, or a
commercialisation phase.
By FT competitor shall be meant, in particular, any operator of fixed
telecommunications networks or services, any operator of mobile
radiocommunications (radio phones and e-mail) and any distributor of fixed
telephone message services or mobile radiocommunications.
ARTICLE 17 - LIABILITY
----------------------
Cellpoint Systems hereby undertakes not to cause any dilapidation, disturbance
or loss of data in the information system of FTM, to which it is connected for
the execution of the present contract. Dilapidation, disturbance, or loss of
data shall be deemed to be direct damage.
In the case of damage or dilapidation caused by FTM, with respect to all or part
of the equipment made available to FTM, FTM hereby undertakes either to restore
said equipment to a normal state of operation or to replace it by equivalent
equipment or to pay to Cellpoint Systems the as yet non-amortised value
thereof,excluding damages. The burden of proof shall be on Cellpoint Systems to
show that the damage has been caused directly and exclusively by FTM.
The parties hereby acknowledge that they shall not under any circumstances
whatsoever be liable for any consequential damage they may cause to each other
during performance of the present contract, such as, in particular, operating
loss, shortfall in profit, image prejudice ...
ARTICLE 18 - RIGHTS ARISING FROM INTELLECTUAL CREATION
------------------------------------------------------
The clauses of this article apply to the property rights and utilisation rights
of Cellpoint Systems and FT with respect to the results arising from performance
of the Contract, referred to hereafter as the " results ". These results are
made up of the results of the tests and commercial Experimentation, as well as
any specific developments realised by Cellpoint Systems for the performance of
the present contract.
The results shall be entirely and exclusively those supplied to FT during
execution of the services provided for under the contract, and at the end
thereof. All intellectual creations realised under the contract shall be a part
of the results.
18.1 GUARANTIES WITH RESPECT TO THIRD PARTIES
FT and Cellpoint Systems shall, insofar as each of them is concerned, continue
to have ownership of their knowledge, which may or may not be capable of being
covered by intellectual property rights, held prior to the date of conclusion of
the contract.
Should, for the execution of the Contract, Cellpoint Systems intend to make use
of processes and/or products covered by intellectual property rights, obtained
by itself or by means of a licence, at the date of conclusion of the Contract,
or in the process of being obtained at said date, Cellpoint Systems shall inform
FT thereof.
18.2 INTELLECTUAL PROPERTY RIGHTS AND UTILISATION RIGHTS
Gradually, as they are obtained, Cellpoint Systems shall transfer to FT
all rights concerning the results. The transfer of these intellectual
property rights to FT shall be effected for all countries and for the
terms of legal protection applying to said rights.
Said rights thus transferred shall include, in particular, the right of :
- reproduction, in as many copies as FT shall see fit, by all means, and
on all supports and all sites
- representation, using all techniques, including land-based television
broadcasting and satellites,
- modification to or development of the results,
- adaptation, perfecting, correction, arrangement, decompilation,
reverse engineering, simplification,
addition, incorporation in present or future systems, transcription to
another computer language, or translation into another language,
creation of derivative works, both by FT itself and by third parties,
- publication with respect to third parties,
- use and exploitation on all central and/or local units by any number
of users, in the form of source programmes and object programmes, on
all sites and for the supply of services in shared time,
- commercial exploitation and distribution of the results and their
derivatives under any form whatsoever, whether for or without
consideration.
Each of the abovementioned rights shall apply to all modifications to or
developments of the results which FT shall carry out, or cause to be
carried out, by a third party. All of these rights may be transferred
wholly or partly by FT to any third party of its choice.
Cellpoint Systems hereby undertakes to inform FT promptly of the results,
and to provide it with all assistance and all documents, and more
generally, all information, irrespective of its form or support, necessary
for FT to fully exercise its rights and to enable it to :
- obtain, should it so desire, in its own name and at its own expense,
any intellectual property right over the results which it sees fit,
for all countries, and to carry out all formalities and take all steps
necessary for implementing and protecting said rights,
- use and exploit the Results.
Cellpoint Systems hereby guarantees that contracts binding persons who
shall be working directly or indirectly under the contract, do not
contain any provision restricting FT's intellectual property rights over
the results. Cellpoint Systems hereby undertakes to obtain the same
guarantee from its subcontractors and/or suppliers.
Cellpoint Systems may not exercise any right whatsoever over the results,
except in the case of prior written agreement to the contrary from FT,
and in accordance with terms and conditions which, if applicable, shall
be determined by joint agreement.
Should FT renounce, in writing, after receiving formal notice from
Cellpoint Systems, obtaining intellectual property rights over the
results, the contracting party may obtain such rights in its own name and
at its own expense, on condition that it grants France Telecom, free of
charge and on a non-exclusive basis, the right to exploit or to use said
rights, France Telecom having the faculty of sub-licensing.
ARTICLE 19 - THE YEAR 2000
--------------------------
Cellpoint Systems hereby undertakes to design and supply the GSM localisation
System in such a manner that it can be used between now and the year 2000, at
the date of changeover from the year 1999 to the year 2000, and beyond.
Cellpoint Systems commits itself with respect to continuity of service at the
dates corresponding to the changeover from 1999 to 2000 and beyond. Cellpoint
Systems hereby guarantees FTM against any failure, irregularity, error,
malfunction and, in general, everything which could affect before, during or
after the changeover to the year 2000, FTM's information service, due to the
taking into account of the changeover to the year 2000 in the services covered
by the present contract.
Cellpoint Systems hereby undertakes to carry out all requisite tests in order to
ensure that the processing of dates, the calculation of dates and all references
to dates, of whatever nature, are in accordance with transmillennium criteria,
the characteristics of the year 2000 (a Leap Year, in particular) and all of the
consequences arising therefrom.
As Cellpoint Systems must connect up its system to other equipment by means of
communications interfaces, it hereby undertakes that such connecting up shall
not require any development of, changes to, transformation or arrangement of any
kind whatsoever of all or part of said interfaces.
Should it default on any of these obligations, Cellpoint Systems hereby
undertakes to repair the prejudice incurred by FT.
ARTICLE 20 - COMPETENCE
-----------------------
The parties shall make their best endeavours to settle any disputes arising from
the interpretation and/or execution of the present contract on a friendly basis.
Should they be unable to reach a friendly agreement, all disputes shall be
submitted by either party to the "Tribunal de Commerce" i.e. Trade Court of
Paris, France. The present contract shall be governed by French law.
ARTICLE 21 - LANGUAGE
---------------------
The contract shall be drawn up in the French and English languages. The French
and English versions of the contract shall be signed by both parties, but the
French language contract shall be binding and shall prevail over the English
language version.
ARTICLE 22 - RIGHT OF TRANSFER
------------------------------
As the present contract is entered into with respect to the actual personality
of Cellpoint Systems, the latter hereby undertakes not to transfer or to assign
all or part of its rights and/or obligations arising under the present contract,
in any form or any way whatsoever, without the prior written agreement of FT.
ARTICLE 23 - INTEGRALITY
------------------------
The present contract reflects the entire contractual obligations of FT and
Cellpoint Systems. The provisions of the present contract cancel out and replace
all acceptation, exchange of correspondence and/or agreements prior to the
signature of the present contract. No changes to the terms and conditions of the
present contract shall generate obligations with regard to FT and Cellpoint
Systems if they are not covered by a written additional clause signed by FT and
Cellpoint Systems.
Signed in duplicate, with one copy for each of the parties.
--------------------------------------------------------------------------------------------------------
In on In on
--------------------------------------------------------------------------------------------------------
Signature, name and capacity Signature, name and capacity
--------------------------------------------------------------------------------------------------------
of Cell point Systems of the person empowered to bind France Telecom
--------------------------------------------------------------------------------------------------------
Cellpoint Systems shall affix its company seal
--------------------------------------------------------------------------------------------------------
APPENDIX 1
SPECIFICATIONS
--------------
FTM/DIP/SVA/PR/98/loc/CDC-CPS
-----------------------------
APPENDIX 2
----------
PRICE LIST
----------
Ref :
-----
APPENDIX 3
----------
TESTS SPECIFICATIONS
--------------------
Ref :
APPENDIX 4
----------
TECHNICAL SPECIFICATIONS
------------------------
Ref :
APPENDIX 5
----------
STANDARD TERMS AND CONDITIONS OF PURCHASE
-----------------------------------------
December 1998 Edition
---------------------
[GRAPHIC OMITTED]
[GRAPHIC OMITTED][GRAPHIC OMITTED]
Standard Terms and Conditions
of Purchase
System, Equipment and Services
December 1998 Edition
