EXHIBIT 10.7
ATTACHMENT 4
SERVICES AGREEMENT
BLUE SKY COMMUNICATIONS, INC.
INTERWAVE COMMUNICATIONS, INC.
InterWAVE Confidential
SERVICES AGREEMENT
DATED SEPTEMBER 27, 2000
BETWEEN:
(1) Blue Sky Communications, Inc., 000 Xxxxx Xxxxx Xxxxxx Xxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxxxx 00000 (the "Purchaser"); and
(2) interWAVE Communications, Inc. of 000 Xxxxxxxxxxxx Xxxxx, Xxxxx Xxxx,
XX 00000 (the "Seller").
WHEREAS:
A. By a Master GSM Products Supply Agreement between the Purchaser and the
Seller of even date herewith, the Seller agreed to sell certain
products to Purchaser, and to install, integrate, commission and test
such products ("the Contract").
B. The Seller agrees to perform the services (the "Services") set forth in
this Agreement, described in the attached Scope of Service Work and
Installation Services ("Appendix 1") incorporated by this reference
herein, on the terms set out herein.
1. DEFINITIONS
Capitalized terms shall, except as expressly provided to the contrary
herein, bear the same meanings herein as they bear under the Contract.
2. SCOPE
The Seller agrees to provide Services, on the terms and conditions
herein contained, according to the attached Scope of Services.
3. TERM
This Agreement shall commence on the date hereof and shall remain in
full force and effect until December 31, 2003.
4. FEES AND PAYMENTS
4.1 Fees for Services are listed on Appendix 2, which is incorporated by
this reference herein. Services shall be provided in consideration of
the payments to be made by Purchaser to the Seller under this Agreement
and under the Contract.
4.2 FEES AND PAYMENTS
(a) Fees for the Services, except for Post-Warranty Support, and
for Software I & C Engineering Services, and for Documentation
for Software Releases, shall be invoiced by the Seller upon
shipment of the Products for which Services are ordered.
(b) Each payment shall be paid, in U.S. dollars, following receipt
by the Purchaser of a duly executed invoice, correctly
submitted by the Seller as to the total invoice for the value
of the Services for the Products delivered, on the later of :
(i) sixty days after delivery of the first delivery of
Products for which the Services are ordered, or,
(ii) when a certificate is issued certifying that the
Products and Services invoiced have passed product
compliance testing ("Compliance Certificate") ;
(c) For Post Warranty Support, if ordered by Purchaser, shall be
invoiced and paid quarterly in advance, commencing one year after
issuance of the Compliance Certificate regarding Products to which such
certificate relates.
(d) Any of the Services quoted as Training in Attachment 1 to
the Contract shall be invoiced ten percent (10%) on placement of the
order, and paid ninety percent (90%) on completion of the Training,
paid net thirty (30) days.
4.3 THE PURCHASER'S RESPONSIBILITIES
The Purchaser shall:
(a) Provide qualified technical personnel capable of performing
the tasks described for the Purchaser's personnel in Appendix
1.
(b) Perform the tasks defined under the Purchaser's Scope of
Responsibilities in Appendix 1.
4.4 SELLER PROVIDED SERVICE
The Seller shall:
(a) Provide experienced, duly qualified technical personnel to
perform the Services described for the Seller's personnel in
Appendix 1.
(b) Perform the tasks defined under the Seller's Scope of
Responsibilities in Appendix 1.
(c) Perform the Inspection and Compliance Tests that are the
Seller's responsibility set forth in the Contract, Section 4.
(d) Perform each task that is the Seller's responsibility under
the Contract and, the Software License attached thereto,
including without limitation warranty obligations and
non-warranty repair obligations.
(e) The Seller shall provide all labor and parts which are
necessary for providing the services required hereunder and
shall invoice the Purchaser as provided in the Prices under
this Agreement.
(f) The Seller shall keep accurate, updated, "as installed"
documentation for all system hardware and make such
documentation available to the Purchaser on request.
(g) The Seller shall procure and maintain for itself and its
employees all insurance coverage required by applicable law,
including worker's compensation insurance. Seller shall also
maintain the following insurance:
(i) Commercial general liability insurance, including
broad form contractual liability, broad form
property damage, personal injury, products, completed
operations and contractor's protective liability
coverages in an amount not less than five million
dollars ($5,000,000) combined single limit for bodily
injury and property damages;
(ii) Automobile liability insurance covering all owned,
non-owned and hired vehicles operated by the Seller in
the performance of Services with a coverage limit of
not less than one million dollars ($1,000,000); and,
(iii) Professional errors and omissions insurance with
coverage in an amount not less than one million
dollars ($1,000,000), unless otherwise mutually agreed
in writing by the Parties.
(iv) Purchaser shall be named as additional insured on all
such policies and Seller shall provide to Purchaser
certificates of insurance (with
respect to such policies) evidencing such policies
and coverage. All such policies shall provide that
Purchaser shall be given at least 30 days' prior
notice of cancellation or termination. In the event
of such cancellation or termination, Purchaser may
pay for and provide insurance required for Seller
hereunder, and xxxx Seller for the cost thereof.
(h) The Seller shall prepare and give to the Purchaser a list of
all service personnel who may perform work under this
Agreement, who shall be subject to the approval of the
Purchaser (not to be unreasonably withheld) for the purpose of
granting such personnel access to the Site to perform
Services. Seller shall, at Purchaser's reasonable request,
remove any such personnel for cause, from a Site or Purchaser
facility, and replace such personnel.
(i) Where any service is undertaken by remote access by the
Seller, the Seller shall follow such procedures as the
Purchaser shall consider appropriate including without
prejudice to the generality of the foregoing, the
registration with the Purchaser of all persons requiring
access together with their identification numbers for log
in purpose. The Purchaser shall advise the Seller of the
password to be used for such purposes and access shall be
by confidential password. The Seller shall be wholly
responsible for and bear the risk of all access using such
procedure and the Purchaser shall be under no obligation to
make further inquiry as to the authority of the person
accessing the system. The Seller shall be responsible for
maintaining the security of the System and ensure that
access is protected by such secured ID system permitting
access only to the Seller's authorized personnel.
(j) The Seller shall provide adequate technical training and
technology transfer of the System to the Purchaser, with
training provided on Seller's price list for training courses.
(k) Seller's employees and/or subcontractors shall comply with all
Purchaser safety rules and regulations, job work rules,
security regulations, emergency plans and procedures, as
applicable.
(l) Throughout the term of this Agreement, other contractors and
persons (including personnel of Purchaser) may be required to
render services in or install equipment or software in the
System. Purchaser reserves the right to permit and put such
other contractors and persons to work and to afford them
access to the System at such times and under such conditions
as do not unreasonably interfere with Seller. Seller shall
make commercially reasonable efforts to so conduct and
coordinate its aspects of the work so as to minimize
interference with such other work. In addition, Seller shall
also make commercially reasonable efforts to cooperate with
Purchaser in providing such information and assistance as
requested by Purchaser or such other contractors or persons
for such coordination in a timely manner. Such contractors and
other persons shall be required by Purchaser to sign
non-disclosure agreements of the form of Attachment 6 of the
Contract prior to Seller or Purchaser disclosing Seller's
confidential or proprietary information to such persons.
(m) Upon Purchaser's order, after termination of the warranty
period regarding any Products, Equipment or Software Seller
shall provide the following Services ("Post Warranty
Support") regarding such for the prices listed in Appendix 2
to this agreement:
(i) LEVEL 1 SUPPORT: General Maintenance Services.
Maintain the Products and Equipment and Software in
good working order and remedy any failure of them to
perform in accordance with the specifications
therefor or with the warranties set forth in the
Contract. Such General Maintenance Services shall
include, and Seller shall perform, (i) telephone
support, (ii) certain Equipment installation
services, (iii) remedial maintenance if Product,
Equipment or Software are inoperable or otherwise
fail to meet the specifications therefor or the
warranties therefore, which is necessary to return
the Products and Equipment to these standards
("Remedial Maintenance"), (iv) preventive maintenance
to keep Products in good operating condition
("Preventive Maintenance"), and (v) certain
additional services.
(ii) LEVEL 2 SUPPORT: Telephone Support. Seller shall
provide Purchaser a toll-free number for
"telephone support" to respond to problems in the
installation, use and maintenance of the Products,
Equipment and Software and to provide assistance
with regard to such problems. "Telephone support"
means Seller's provision of operating
instructions, technical advice, and
troubleshooting regarding the Products, Equipment
and Software and reasonable assistance in helping
Purchaser install and operate the updates and
enhancements provided. Telephone support shall be
available 24 hours per day, 7 days per week.
(iii) EQUIPMENT INSTALLATION SERVICES. Installation,
integration, commissioning, and testing of Products
as provided in Appendix 1.
(iv) REMEDIAL MAINTENANCE. Seller shall provide remedial
maintenance regarding defective or non-functioning
Equipment, Products and Software to the same extent,
and within the same timeframes, as it provides under
its warranty obligations in the Contract and, with
respect to Software, the Software License.
(v) PREVENTIVE MAINTENANCE. In addition to the
foregoing, Seller shall
provide Preventive Maintenance services for the
Equipment on a semi-annual basis. Such maintenance
will be performed outside of Purchaser's peak
business hours. Preventive Maintenance is a
routine check-up and includes the installation of
any engineering changes, modifications or
improvements made to the Equipment to meet safety
requirements or maintain performance to
specifications, and testing of any necessary
adjustments.
(n) ADDITIONAL SERVICES. Purchaser may request and Seller may
provide, additional services related to the Equipment,
Products and Software (the "Additional Services") at
Seller's then current time and materials charges as may be
mutually agreed between Purchaser and Seller. Software
enhancements, features or applications are not Additional
Services under this paragraph and may only be requested
under a separate mutually agreed written agreement at
Seller's then prevailing prices or non-recurring
engineering charges.
(o) PURCHASER ORDER AND AVAILABILITY. Purchaser may order Post
Warranty Support on not less than an annual basis. Seller
shall make Post Warranty Support available to Purchaser for a
period of eight (8) years following the date of this
Agreement, or five (5) years following the date of the last
Product compliance of Equipment delivered under the Contract,
whichever is shorter; provided that Seller shall make Software
Post Warranty Support available to Purchase for a period of
ten (10) years following date of last Product Compliance for
such Software, on the condition that Purchaser upgrade its
software to Seller's new release no less often than once every
two years.
(p) TRAINING. Seller shall, at Purchaser's request, provide
training to Purchaser in the installation, integration,
commissioning, testing, maintenance and operation of the
Products. Such training will be at such time and places as
mutually agreed. Such training will be at Seller's then
current prices, which shall be invoiced to Purchaser.
4.5 SOFTWARE UPGRADES, ENHANCEMENTS, FIXES
During the term hereof, Seller shall provide Purchaser with any patches
(including revisions required to address regulatory changes implemented
by Federal, state or local governmental entities, including without
limitation, the FCC), and bug fixes of defects to the software for the
Products of which it learns from any source. For all such patches and
fixes, Seller shall promptly provide Purchaser with corrected copies of
same, without additional charge. For upgrades and enhancements, Seller
shall supply such to Purchaser with the next upgrade or revision to
such software, which shall be provided yearly at a minimum, at Seller's
then prevailing prices for such upgrades, enhancements, revisions and
new releases. Seller will provide complete Documentation conforming to
the requirements set forth in the Contract for all such upgrades,
enhancements and fixes. Seller does not provide new features except by
mutual separate written agreement with Purchaser,
specifying Seller's prices for such features, or as part of Seller's
new releases of Software.
4.6. WARRANTIES OF EQUIPMENT AND SOFTWARE
Without limiting the provision of the Contract or the above provisions,
The Seller shall replace, make good or rectify any Equipment or
Software which does not comply with the Warranties set out in Clause 6
of the Contract.
5. WARRANTIES AND CONDITION OF SERVICE
5.1 Without limiting the warranties and undertakings provided in The
Contract, The Seller warrants that all Services performed hereunder
will be performed in a professional and workmanlike manner by personnel
duly qualified.
5.2 The Seller's obligation to provide service hereunder shall not extend
to faults caused by:
(a) accident caused by the Purchaser or the negligence of the
Purchaser;
(b) failure of the Purchaser to use the System in accordance with
reasonable requirements of the Seller as set out in the
Documentation;
(c) failure or defect of the Purchaser's electrical power,
external electrical circuitry, air conditioning or humidity
control resulting in operating conditions not being in
accordance with the Specifications;
(d) any party other than the Seller, or a customer service
representative authorized by the Seller, modifying, adjusting
repairing, servicing or installing the System.
During an Emergency, the repair of Equipment of any specific work must
be performed by qualified Purchaser staff who have undertaken the
training organized by the Seller. The Purchaser shall inform the Seller
of the details of fault and repair in writing, within 24 hours after
emergency repair and any work so performed by the Purchaser staff shall
not invalidate any Warranties provided reasonable care is taken during
such repair.
6. DEFAULT
6.1 If a party becomes insolvent or enters into any liquidation or
insolvency proceedings, has a receiver, manager, administrator, trustee
or similar officer appointed or has a resolution passed or an order
made against it for winding up or if
a winding-up petition is issued or if any composition or arrangement
with its creditors is made, or if it is unable to pay its debts or
has any execution or attachment levied in respect of any of its
assets which is not discharged within 30 working days, the other
party shall be entitled forthwith to terminate this Agreement
without notice or compensation, except for payment of the amounts
due under this Agreement.
6.2 Either party may terminate this Agreement upon the other's material
breach, which has not been cured within ninety (90) days of the
breaching party's receipt of written notice of such breach, which
notice must describe such breach in reasonable detail.
6.3 Notwithstanding anything herein provided, any termination of this
Agreement shall not affect any accrued rights or liabilities of any
party existing or accruing prior to such termination.
7. COVENANT NOT TO EMPLOY
The Purchaser and the Seller agree that during the term of this
Agreement and for a period of six (6) months thereafter, neither shall
directly solicit for the purpose of employment in relation to
performance of maintenance of the System any employee of the other
involved in the performance of System maintenance. If at any time this
provision is found to be overly broad under the laws of an applicable
jurisdiction, then this provision shall deemed to be deleted from this
Agreement and both parties shall negotiate in good faith in order to
agree the terms of a mutually satisfactory provision to be substituted
for this provision found to be void or unenforceable.
8. INDEMNITY.
Seller shall indemnify each of Purchaser, its officers, directors,
employees, contractors, agents and representatives, against any loss,
cost, damage, claim, expense or liability, including but not limited to
liability as a result of injury to or death of any person or damage to
or loss or destruction of any property, arising out of, as a result of,
or in connection with the performance of this Agreement and directly or
indirectly caused by the acts or omissions of Seller or a contractor or
agent of Seller or an employee of any one of them, except that Seller
shall not be obligated to indemnify any of the foregoing for any such
loss, cost, damage, claim, expense or liability caused directly or
indirectly by the acts or omissions of Purchaser or a contractor or
agent of Purchaser or an employee of any one of them. In the foregoing
sentence, the words "any person" include, but are not limited to, a
contractor or agent of Purchaser or Seller and an employee of
Purchaser, Seller or any such contractor or agent; and the words "any
property" shall include, but not be limited to, property of the
Purchaser, Seller or any such contractor or agent, or an
employee of any one of them. Upon Purchaser's request, Seller shall,
at no cost or expense to Purchaser, defend or settle any suit or
other legal action asserting a claim for any loss, damage or
liability specified above, and Seller shall pay any costs (including
but not limited to attorneys' fees) that may be incurred by
Purchaser in connection with any such claim or suit or enforcing the
indemnity granted above, except that Seller's obligation to
indemnify, defend or settle shall be conditioned on: (i) Purchaser
promptly notifying Seller in writing within thirty (30) days of
Purchaser's receipt of written notice of such claim, (ii) Purchaser
providing Seller with control of the defense and of all related
negotiations, including settlement negotiations, and (iii) Purchaser
providing Seller with reasonable assistance, information and
authority necessary to perform the above obligations. Seller shall
have no liability for any settlement made without its express
written consent. The foregoing indemnity is limited by the
limitations in the Contract, Section 32, page 28.
9. ENTIRE AGREEMENT
9.1 This Agreement and the Contract and its attached schedules and
appendices constitute the entire understanding between the parties
concerning the subject matter hereof and supersedes all prior
discussions, agreements and representations, whether oral or written
and whether or not executed by the Seller and the Purchaser. No
modification, amendment or other change may be made to this Agreement
or any part thereof unless reduced to writing and executed by
authorized representative of both parties.
9.2 Subject to Clause 9.3, the terms and conditions of this Agreement shall
prevail notwithstanding any variance with the terms and conditions of
any order submitted by the Purchaser following execution hereof. In no
event shall the preprinted terms and conditions found on any customer
purchaser order, acknowledgement or other form be considered an
amendment or modification of this Agreement even if such documents are
signed by representatives of both parties; such preprinted terms and
conditions shall be null and void and of no force and effect.
9.3 In the event of any inconsistency between this Agreement and the
Contract, The Contract shall prevail to the extent of the
inconsistency.
10. APPLICABLE LAW
10.1 This Agreement shall be interpreted, construed and governed by the laws
of the State of California and the parties hereto submit to the
non-exclusive jurisdiction of the state and federal courts in Santa
Xxxxx County, California.
11. ARBITRATION, NOTICE, ASSIGNMENT, CUMULATIVE REMEDIES
11.1 The arbitration provisions of the Contract, Section 23, govern any
dispute between the parties; the notice provisions of the Contract,
Section 27, govern notice; the Assignment provisions of the Contract,
Section 35, govern assignment; and the cumulative remedies provisions
of the Contract, Section 38, govern remedies, under this Agreement.
IN WITNESS WHEREOF, this Agreement has been executed on the day and year first
above written.
BLUE SKY COMMUNICATIONS, INC. INTERWAVE COMMUNICATIONS, INC.
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxxxxxxx Xx
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Name: Xxxxx Xxxxxx Name: Xxxxxxxxx Xx
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Title: Chief Executive Officer Title: Chief Executive Officer
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Date: September 27, 2000 Date: September 27, 2000
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