1
Exhibit 10.26
*** CERTAIN CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED WITHIN THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT.
SATELLITE MODEM DEVELOPMENT, PRODUCTION AND PURCHASE AGREEMENT
BY AND BETWEEN
WILDBLUE COMMUNICATIONS, INC.
AND
VIASAT, INC.
EFFECTIVE AS OF MARCH 5, 2001.
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TABLE OF CONTENTS.
1. CONSTRUCTION AND INTERPRETATION...................................... 1
2. DEFINITIONS.......................................................... 2
3. CONTRACT DOCUMENTS; POST EXECUTION MATTERS........................... 7
4. TERM................................................................. 7
5. SATELLITE MODEM DEVELOPMENT.......................................... 7
5.1. Statement of Work............................................. 7
5.2. WildBlue Responsibilities..................................... 8
5.3. Contractor Responsibilities................................... 8
5.4. Milestone and Payment Schedule................................ 8
5.5. Failure to Achieve Milestones................................. 9
6. ACCEPTANCE AND PRODUCTION............................................ 9
6.1. Contractor Responsibilities................................... 9
6.2. Acceptance Testing............................................ 9
6.3. Quality Assurance............................................. 12
7. PHYSICAL APPEARANCE AND BRANDING..................................... 12
7.1. Physical Appearance........................................... 12
7.2. XX Xxxxx...................................................... 12
7.3. Use of Contractor Marks....................................... 12
7.4. Dispute Resolution............................................ 13
8. ORDERING............................................................. 13
8.1. Orders Generally.............................................. 13
8.2. Order and Delivery Forecast................................... 13
8.3. Initial Order................................................. 13
8.4. Orders from Affiliates and Authorized Resellers............... 13
8.5. Shortfalls and Cancellation of WildBlue Orders................ 14
8.6. Minimum Order Quantity........................................ 15
9. SHIPPING AND RELATED MATTERS......................................... 15
9.1. Serial Numbers................................................ 15
9.2. Packing and Packaging......................................... 15
9.3. Delivery and Storage.......................................... 15
10. LICENSES, PROPRIETARY RIGHTS AND ESCROW.............................. 16
10.1. Ownership..................................................... 16
10.2. Grants of Licenses to Contractor.............................. 17
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10.3. Grant of Licenses to WildBlue................................. 17
10.4. Software Licenses and Rights.................................. 18
10.5. Documentation................................................. 19
10.6. Intellectual Property Pool.................................... 19
10.7. Source Materials License...................................... 19
10.8. Contractor's Rights of Sale to Other Service Providers and End
Users......................................................... 19
11. TRAINING............................................................. 19
11.1. Training...................................................... 19
12. CHANGE PROCEDURES.................................................... 20
12.1. Development Phase Change Procedures........................... 20
12.2. Post-Development Phase Change Procedures...................... 20
12.3. Contractor-Proposed Changes................................... 21
12.4. Change Orders ................................................ 21
13. PROGRAM MANAGEMENT................................................... 22
14. CONTRACTOR'S USE OF SUBCONTRACTORS AND MANUFACTURING FACILITY........ 22
15. FORCE MAJEURE AND DELAYS............................................. 24
15.1. Force Majeure................................................. 24
15.2. Excusable Delay............................................... 25
15.3. Delay due to Satellite Construction........................... 25
15.4. Delay Due to Launch or Satellite Failure...................... 26
16. PRICES............................................................... 26
16.1. General....................................................... 26
16.2. SM Prices by Configuration.................................... 26
16.3. Most Favored Customer and Royalty............................. 26
16.4. Taxes......................................................... 27
17. WILDBLUE PAYMENTS TO CONTRACTOR AND INVOICING........................ 27
17.1. Payments...................................................... 27
17.2. Invoicing..................................................... 28
17.3. Payment Due................................................... 28
17.4. Disputed Charges.............................................. 29
17.5. Encumbrances.................................................. 29
18. INFORMATION; CONFIDENTIALITY......................................... 29
18.1. Contractor Information........................................ 29
18.2. WildBlue Information.......................................... 29
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18.3. Confidentiality............................................... 30
19. WARRANTIES AND TECHNICAL SUPPORT..................................... 32
19.1. Pass-Through Warranties....................................... 32
19.2. SM Warranty................................................... 32
19.3. Monthly Reports............................................... 33
19.4. Epidemic Failures............................................. 33
19.5. Ownership or Use.............................................. 33
19.6. Disclaimer.................................................... 33
19.7. Technical Support............................................. 34
20. INDEMNITIES.......................................................... 34
20.1. Indemnity by Contractor....................................... 34
20.2. Indemnity by WildBlue......................................... 34
20.3. Intellectual Property Infringement............................ 35
20.4. Indemnification Procedures.................................... 36
20.5. Subrogation................................................... 36
21. LIABILITY............................................................ 37
22. DISPUTE RESOLUTION................................................... 37
22.1. Informal Dispute Resolution................................... 37
22.2. Arbitration................................................... 37
22.3. Independent Expert Dispute Resolution......................... 40
22.4. Injunctive Relief............................................. 40
22.5. Venue and Jurisdiction........................................ 40
23. TERMINATION.......................................................... 40
23.1. Termination for Cause......................................... 40
23.2. Termination for Convenience................................... 41
23.3. Effect of Termination or Expiration; Wind Down................ 42
24. LIMITATION OF LIABILITY.............................................. 42
25. GENERAL.............................................................. 43
25.1. Binding Nature and Assignment................................. 43
25.2. Entire Agreement.............................................. 43
25.3. Compliance with Laws and Standards............................ 43
25.4. Notices....................................................... 44
25.5. Counterparts.................................................. 44
25.6. Relationship of Parties....................................... 44
25.7. Severability.................................................. 44
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25.8. Consents and Approval......................................... 45
25.9. Waiver of Default; Cumulative Remedies........................ 45
25.10. Survival...................................................... 45
25.11. Public Disclosures............................................ 45
25.12. Third Party Beneficiaries..................................... 45
25.13. Amendment..................................................... 46
25.14. Incorporation by Reference and Order of Precedence............ 46
25.15. Governing Law................................................. 46
25.16. Covenant of Good Faith........................................ 46
25.17. Authorization................................................. 46
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LIST OF SCHEDULES.
1. Satellite Modem Product Description
2. WildBlue Radio Frequency Interface Specification
3. SM/SMTS Functional Specification
4. IDU/ODU Interface Specification
5. WildBlue Responsibilities
6. Statement of Work
7. Milestone and Payment Schedule
8. Minimum Order Commitment and Maximum Capacity Commitment
9. Order and Delivery Forecast
10. Labor Rates
11. SM Pricing Schedule
12. Contractor's Marks
13. Technical Support, Warranty Support and Maintenance
14. Post Warranty Support and Maintenance
15. Documentation Reproduction Guidelines
16. Warranty Related Fee Schedule
17. Satellite Physical Layer MIB Objects
18. Master Preferred Escrow Agreement.
SATELLITE MODEM DEVELOPMENT, PRODUCTION AND PURCHASE AGREEMENT
BY AND BETWEEN
WILDBLUE COMMUNICATIONS, INC.
AND
VIASAT, INC.
This Satellite Modem Development, Production and Purchase Agreement,
including those Schedules and Attachments attached hereto (the "AGREEMENT"),
effective as of the Effective Date, is entered into by and between WildBlue
Communications, Inc., a Delaware corporation with offices located at 0000 Xxxxx
Xxxxxxxx, Xxxxx 000, Xxxxxx, XX 00000 ("WILDBLUE"), and ViaSat, Inc., a Delaware
corporation with offices located at 0000 Xx Xxxxxx Xxxx, Xxxxxxxx, Xxxxxxxxxx
00000 ("CONTRACTOR"). As used in this Agreement, "PARTY" means either WildBlue
or Contractor, as appropriate, and "PARTIES" means WildBlue and Contractor.
The Parties, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, agree as follows:
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1. CONSTRUCTION AND INTERPRETATION
1.1. Terms other than those defined in this Agreement shall be given
their plain English meaning, and those terms, acronyms and
phrases known in the satellite telecommunications technology
products and services industries shall be interpreted in
accordance with their generally known meanings.
1.2. Unless the context otherwise requires, words importing the
singular include the plural and vice-versa.
1.3. References to an "Article," "Section" and "Subsection" shall be
references to an article, section, or subsection of this
Agreement, unless otherwise specifically stated.
1.4. References to this Agreement and the words "herein," "hereof,"
"hereto," and "hereunder" and other words of similar import refer
to this Agreement as a whole and not to any particular Article,
Section or Subsection.
1.5. The Article, Section and Subsection headings in this Agreement
are intended to be for reference purposes only and shall in no
way be construed to modify or restrict any of the terms or
provisions of this Agreement.
1.6. The word "including" and words of similar import (such as
"include" and "includes") mean "including, but not limited to."
1.7. A reference to "days" means calendar days, unless otherwise
specifically stated in a reference. A reference to a monthly
"date" is the last day of the month unless another day is
specified.
2. DEFINITIONS
As used in this Agreement, the following defined terms shall have the
meanings set forth below. Other capitalized terms used in this Agreement
are defined in the context in which they are used and shall have the
meanings there indicated.
2.1. "ACCEPTANCE" or "ACCEPTED" means written notification of
acceptance from the WildBlue Program Manager to the Contractor
Program Manager (or lapse of the required time for notice of
rejection set forth in the Acceptance Test Plan or herein as
applicable) in accordance with the Acceptance Test Plan that a
Deliverable meets the applicable Acceptance Criteria.
2.2. "ACCEPTANCE CRITERIA" means the criteria used to confirm that
Deliverables meet the requirements of the Acceptance Test Plan
and/or the Statement of Work.
2.3. "ACCEPTANCE TEST PLAN" means the defined criteria, processes, and
time frame to be mutually agreed upon by the Parties in
accordance with Section 6.2 below, which are necessary to
evaluate and demonstrate that Deliverables subject to Acceptance
Testing in accordance with the Statement of Work satisfy the
applicable requirements for the relevant Milestone or that the
Deliverables provide the applicable Features and conform to the
applicable Specification in all material respects as set forth in
the Statement of Work.
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2.4. "ACCEPTANCE TESTING" means the acceptance tests to be conducted
in accordance with the procedures and timeframes set forth in the
Acceptance Test Plan.
2.5. "AFFILIATE" means, with respect to a Party, any person or entity
Controlling, Controlled by or under common Control with such
entity (but only as long as such person or entity meets these
requirements).
2.6. "AUTHORIZED RESELLER" means a person or entity that is authorized
by WildBlue to buy SMs from Contractor for use with the WildBlue
System.
2.7. "CONTRACTOR BACKGROUND INFORMATION" means all information and
technology, and all Intellectual Property Rights therein,
developed by or for Contractor prior to the Effective Date or
developed by or for Contractor at any time independent of this
Agreement. Contractor Background Information expressly excludes
all Third Party Information.
2.8. "CONTRACTOR FOREGROUND INFORMATION" means all information and
technology, and all Intellectual Property Rights therein,
developed by or for Contractor in connection with the development
of SMs under this Agreement, excluding Joint Foreground
Information.
2.9. "CONTROL" and its derivatives mean the possession, directly or
indirectly, of the power to direct or cause the direction of the
management and policies of a person or entity, whether through
the ownership of voting stock, by contract or otherwise.
2.10. "DEFECT" means any failure of an SM, including any components
thereof (but excluding failures of any third party components
provided by WildBlue), to operate in conformance with the
applicable Specification.
2.11. "DELIVERABLES" means the products and services set forth in
Schedule 6 (Statement of Work), including, without limitation,
all incidental related products and services, provided by
Contractor under this Agreement.
2.12. ***
2.13. "DOCUMENTATION" means documentation required to be prepared and
delivered by Contractor under this Agreement in accordance with
Schedule 6.
2.14. "EFFECTIVE DATE" means March 5, 2001.
2.15. "END USER" means a person or entity (other than WildBlue,
Authorized Resellers or Service Providers) that purchases (other
than for resale or distribution) an SM for use outside the
WildBlue System.
2.16. "ESCROW AGREEMENT" means the Escrow Agreement for Source
Materials to be agreed to by the parties and attached to this
Agreement as Schedule 18.
2.17. "EXECUTABLE CODE" means the fully compiled version of a software
program that can be executed by a computer and used by an end
user without further compilation.
2.18. "FEATURE" means a function, innovation or performance improvement
to the SMs that is made generally available to any User. New
Features may be offered by Contractor to WildBlue separately or
bundled. The term "Feature" does not include Point Releases or
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Software Patches, or hardware or software changes which correct
and/or fix Defects in such current release.
2.19. "HARDWARE" means the hardware components of SMs, excluding any
Software.
2.20. "INITIAL ORDER" is defined in Section 8.3 below.
2.21. "INITIAL SM DELIVERY" is defined in Section 5.4(d).
2.22. "INSOLVENCY EVENT" is defined in the Escrow Agreement.
2.23. "INTELLECTUAL PROPERTY RIGHTS" means any and all rights in the
following:
(a) patents whether registered or unregistered;
(b) inventions whether or not capable of protection by patent
or registration;
(c) rights in commercial information and technical
information, including know-how, research and development
data, manufacturing methods and data, specifications and
drawings, formulas, trade secrets, algorithms, prototypes
and research materials;
(d) copyrights (including without limitation any application,
registration or renewal related thereto), registered
designs or design rights (whether or not capable of
protection by registration), trademarks (whether
registered or unregistered, including without limitation
service marks, logos, sound logos, certification marks,
and trade names, together with any applications,
registrations and renewals for any of the foregoing and
the goodwill associated with each), domain names, mask
work rights, database rights, and moral rights;
(e) applications for the grant of rights of the foregoing
descriptions;
(f) rights of a similar or analogous nature to any of the
foregoing whether in existence now or in the future and
wherever located in the world.
2.24. "INTERFACE SPECIFICATION" means the written specifications
defined in Schedules 2 and 4 and each subsequent revision of such
documents (including any modifications and derivative works
thereof), but shall not include Specification Embodiment and IS
Background Information.
2.25. "IS BACKGROUND INFORMATION" means that Contractor Background
Information developed by Contractor prior to the Effective Date
or developed by or for Contractor at any time independent of this
Agreement that incorporated into or essential to the application
of the Interface Specification, and all Intellectual Property
Rights therein, but shall not include Specification Embodiment.
2.26. "IS FOREGROUND INFORMATION" means that Contractor Foreground
Information developed by Contractor in the course of performance
of this Agreement that relates to the Interface Specification,
and all Intellectual Property Rights therein, but shall not
include Specification Embodiment.
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2.27. "JOINT FOREGROUND INFORMATION" means all information and
technology, and all Intellectual Property Rights therein, jointly
developed by Contractor and WildBlue in connection with the
development of SMs under this Agreement. The determination of
whether Contractor and WildBlue are joint authors for
copyrightable foreground information or joint inventors for
patentable foreground information shall be based on federal
copyright and federal patent law respectively.
2.28. "LEGAL REQUIREMENTS" means all laws, statutes, codes, acts,
ordinances, orders, judgments, decrees, injunctions, directions
and requirements of all governmental agencies applicable to or
required in connection with the SMs.
2.29. "LIEN" means any lien (including subcontractor and other mechanic
liens), imperfection in title, security interest, claim, charge,
restriction or other encumbrance.
2.30. ***
2.31. "LOSSES" means all losses, costs, expenses, liabilities and
damages reasonably incurred resulting from or relating to under
any settlement, litigation or final judgment, and all related
reasonable costs and expenses, including reasonable legal fees,
fines, interest and penalties.
2.32. "MAJOR COMPONENT" is defined in Section 14.
2.33. "MAJOR COMPONENT VENDOR" is defined in Section 14.
2.34. "MAJOR RELEASE" means the issue of Software and any superseding
issue thereof which adds new Features or functionality to, or
substantially enhances, the existing Software. A Major Release
may also correct defects in earlier releases.
2.35. "XXXX" means any trademark, service xxxx, trade name, domain
name, logo or other indicia of source or origin of a product or
service.
2.36. "MILESTONE PAYMENT" means an NRE Payment (as defined in Section
17.1) made by WildBlue to Contractor in accordance with Section
17.2 below upon the achievement by Contractor of certain
Milestones and Acceptance by WildBlue of the corresponding
Milestone.
2.37. "MILESTONES" is defined in Section 5.4.
2.38. "NRE PAYMENT" is defined in Section 17.1.
2.39. "ORDER" means a purchase order issued by WildBlue to Contractor
confirming the purchase of SMs and providing carrier, shipping
destination and other similar information.
2.40. "OUT-OF-BOX FAILURE" means the inoperability of any SM or failure
of any SM to operate in accordance with the applicable
Specification either (a) if initially tested after delivery to
WildBlue but before initial installation, or (b) failure to so
operate during the two (2) day period immediately following such
initial installation. Out-of-Box failure does not include failure
of any third party components provided by WildBlue.
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2.41. "POINT RELEASE" means a reissue of the existing Software which
revises or improves the Software with which it is associated; a
Point Release may also correct and/or fix defects in the current
release of Software.
2.42. "PRICE" means the price of an SM to WildBlue as set forth on
Schedule 11, FOB those Contractor's designated sites in the
contiguous Unites States.
2.43. "SERVICE PROVIDER" means persons or entities other than WildBlue,
Authorized Resellers, or End Users that acquire SMs from
Contractor and resell or distribute such SMs.
2.44. "SM" means the satellite modem, designed, developed and
manufactured by Contractor substantially in accordance with the
applicable Specification and as authorized under the terms and
conditions of this Agreement, and any other substantially similar
satellite modem in design and function manufactured by or for
Contractor.
2.45. "SM-A" and "SM-B" mean those versions of the SM with the
applicable requirements and Specifications set forth in the
Statement of Work.
2.46. "SOFTWARE" means the machine readable computer programs
(including firmware, files, databases, interfaces, documentation
and other materials related thereto, any third party Software
sublicensed by Contractor hereunder), as such Software is
revised, upgraded, updated, corrected, modified, and enhanced
from time-to-time and provided to WildBlue pursuant to this
Agreement.
2.47. "SOFTWARE PATCHES" means Software that corrects or removes a
reproducible anomaly or "bug," whether or not such anomaly
applies to software furnished to WildBlue under this Agreement.
Software Patches do not include Point Releases or Major Releases,
and do not represent an upgrade to or enhancement of existing
Software specifications.
2.48. "SOURCE MATERIALS" means the human readable version of the
Software written in a high level language, including source code
listings as then commented, system and program flowcharts, and
such other components, programs and documents to fully utilize,
modify and maintain the Software consistent with standards set
forth herein, including all necessary support routines that
enable the software program to be compiled into Executable Code,
all of which, where applicable, shall be on media that allows the
program to be read and processed. Source Code includes all
documentation and know-how reasonably necessary to allow a person
reasonably skilled in computer programming to understand and
utilize such programs.
2.49. "SPECIFICATION" means, with respect to each Deliverable, those
functional, performance and other requirements specified in the
Statement of Work for such Deliverable. For SMs, the
Specification includes the following documents as may be amended
from time to time in accordance with the terms of this Agreement:
(a) Satellite Modem Product Description (set forth in Schedule
1)
(b) WildBlue Radio Frequency Interface Specification (set
forth in Schedule 2)
(c) SM/SMTS Functional Specification (set forth in Schedule 3)
(d) IDU/ODU Interface Specification (set forth in Schedule 4)
(e) Satellite Physical Layer MIB Objects (set forth in
Schedule 17).
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2.50. "SPECIFICATION EMBODIMENT" means all Intellectual Property Rights
throughout the world now or hereafter owned by a Party hereof
contained in any embodiment of the SMs apart from the Interface
Specification.
2.51. "STATEMENT OF WORK" or "SOW" means the description of the work to
performed by Contractor under this Agreement as set forth in
Schedule 6.
2.52. "THIRD PARTY INFORMATION" means information and technology, and
all Intellectual Property Rights therein, owned by a third party.
2.53. "UNITED STATES" or "U.S." means the United States of America.
2.54. "USER" means a person or entity (other than WildBlue, any
Authorized Reseller, or a Service Provider) that purchases other
than for resale or distribution an SM for use in the WildBlue
System.
2.55. "USER DOCUMENTATION" means the user documentation furnished to
WildBlue by Contractor for distribution along with the SMs.
2.56. "WAIVER" means a written authorization to accept an item of
equipment or software after manufacture which is found to depart
from specified requirements but is nevertheless considered
suitable for use, "as is," or after rework by an appropriate
method.
2.57. "WBSM" means the SM-A or SM-B or other production versions of the
SM produced for WildBlue under this Agreement after Acceptance
for production by WildBlue in accordance with Section 6.2.
2.58. "WILDBLUE BACKGROUND INFORMATION" means all information and
technology, and all Intellectual Property Rights therein,
developed by or for WildBlue prior to the Effective Date or
developed by or for WildBlue at any time independent of this
Agreement.
2.59. "WILDBLUE FOREGROUND INFORMATION" means all information and
technology, and all Intellectual Property Rights therein,
developed by or for WildBlue in connection with the development
of SMs under this Agreement, but excluding all Joint Foreground
Information.
2.60. "WILDBLUE SYSTEM" means the broadband internet access system
operated by WildBlue, as further described in the Specification.
3. CONTRACT DOCUMENTS; POST EXECUTION MATTERS
3.1. The contract documents consist of this Agreement and each of the
Schedules, each as may be amended from time to time in accordance
with the terms of this Agreement, which are attached hereto and
incorporated into this Agreement by this reference.
3.2. The Parties acknowledge that as of the Effective Date, following
Schedules are incomplete: 16 and 17 . Within sixty (60) days
after the Effective Date, or such later time as the Parties may
mutually agree, the Parties will agree on and deliver a final
version of such Schedules.
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4. TERM
The term of this Agreement shall begin upon the Effective Date and shall
expire five (5) years thereafter (the "INITIAL TERM"). Prior to the
expiration of the Initial Term or the first two Extended Terms (as
defined below), WildBlue may, at its option, extend the term of this
Agreement for additional one (1) year terms (for a maximum Term of eight
years), by providing at least sixty (60) days written notification to
Contractor of such extension prior to the end of the then current term
(each such extension is referred to as an "EXTENDED TERM"); provided
that the then current SM Order and Delivery Forecast is at least five
thousand (5,000) SMs per month. The Initial Term and all of Extended
Terms (as they may be earlier terminated), are collectively referred to
as the "TERM."
5. SATELLITE MODEM DEVELOPMENT
5.1. STATEMENT OF WORK. The Parties each agree to perform their
respective obligations set forth in the Statement of Work,
setting forth the development schedule, Milestones, Deliverables,
Acceptance Criteria and other criteria relating to the
Deliverables to be provided by Contractor under this Agreement.
In accordance with the terms of this Agreement and the Statement
of Work, Contractor shall develop and provide WildBlue with the
Deliverables.
5.2. WILDBLUE RESPONSIBILITIES. WildBlue shall deliver to Contractor
those documents and items set forth on and in accordance with
Schedule 5. WildBlue agrees to provide such other WildBlue
Background Information and WildBlue Foreground Information to
Contractor as required by Section 10.1. WildBlue shall use
commercially reasonable efforts to obtain any government
approvals or certifications applicable to the WildBlue System,
apart from approvals or certifications applicable to SMs, that
are reasonably necessary for Contractor to fulfill its
obligations set forth in Section 5.3(b) below.
5.3. CONTRACTOR RESPONSIBILITIES.
(a) Contractor shall design, construct and deliver the
Deliverables that meet the requirements of the
Specification in accordance with the Statement of Work.
Further, promptly upon the completion of each development
phase, and no later than the relevant Milestone date,
Contractor will deliver to WildBlue the portion of the
Deliverables and any other materials required to be
provided by Contractor under such development phase as
described in the Statement of Work (such other materials
being included in the definition of the term
"Deliverables"). The Deliverables subject to Acceptance
Testing in accordance with Schedule 7 that are produced by
Contractor hereunder shall be tested by Contractor and
delivered to WildBlue for Acceptance, as more fully
described in Section 6 below.
(b) Contractor shall obtain the appropriate and necessary
government approvals and certifications applicable to the
WBSM which allow the WBSM to be sold in the United States
and Canada. Further, for all other countries in North and
South America, provided that WildBlue has obtained the
necessary and applicable government approvals for landing
rights, Contractor shall at commercially reasonable rates
(including reimbursement for reasonable travel, legal, and
other related expenses) and, upon a written request from
WildBlue, use commercially reasonable efforts to obtain
the appropriate and necessary government approvals and
certifications applicable to the WBSM and to make any
necessary
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modifications to the WBSM as soon as reasonably
practicable after the WildBlue request that allow the WBSM
to be sold in such other countries. To the extent
practicable, Contractor shall upon request provide
WildBlue a non-binding estimate of the costs associated
with obtaining such approvals or consents within such
countries. Subject to WildBlue's obligations set forth in
this Section 5.3(b), Contractor warrants that WBSMs will
comply fully with the applicable Legal Requirements in the
country for which the WBSMs have been approved as of the
date of delivery of such WBSMs.
5.4. MILESTONE AND PAYMENT SCHEDULE.
(a) MILESTONES. Critical milestones in the development and
manufacture of the SM (each a "MILESTONE"), the deadline
for achievement for each Milestone (each a "MILESTONE
DATE") and the payments required upon the completion of
each Milestone, are set forth on Schedule 7 hereto (the
"MILESTONE AND PAYMENT SCHEDULE"). Contractor acknowledges
and agrees that time is of the essence in the performance
of its obligations hereunder and that Contractor's failure
to complete its development or manufacturing obligations
in a timely fashion will cause serious damage to WildBlue,
the amount of which will be difficult to ascertain.
Accordingly, Contractor will complete each Milestone on or
before the corresponding Milestone Date.
(b) FAILURE TO MEET MILESTONES. If Contractor fails to
complete each Milestone on or before the corresponding
Milestone Date, (1) Contractor will develop a correction
plan demonstrating that Contractor can recover from
Contractor's failure to achieve such Milestone and present
such a correction plan to WildBlue within fourteen (14)
days after WildBlue's request for such correction plan;
and (2) the Parties will work in good faith to devise a
plan of action to achieve the next Milestone by the
specified Milestone Date or arrive at a mutually
acceptable revised schedule within five (5) business days
after WildBlue's receipt of Contractor's plan; and (3)
Contractor's performance will be measured against the
revised schedule (in no event to exceed ninety (90) days
after the original Milestone Date) in such plan of action;
provided that Contractor shall not be in breach of this
Agreement until the later of five (5) weeks after the
Original Milestone Date or the date for performance set
forth in the revised schedule.
(c) ***If Contractor fails to meet Milestones as set forth in
Section 5.4(a), WildBlue will ***.
(d) ***Notwithstanding anything to the contrary herein, if
Contractor delivers at least *** production SMs which
conform to the Specification and satisfactorily pass all
Acceptance Testing (the "INITIAL SM Delivery") by the
delivery date for Milestone 11 of Schedule 7, WildBlue
shall ***.
5.5. FAILURE TO ACHIEVE MILESTONES. Subject to the Statement of Work,
but without prejudice to any remedies WildBlue may have available
pursuant to Section 5.4, if Contractor fails to achieve an
original Milestone or a revised Milestone by the corresponding
Milestone Date, Contractor shall use its reasonable best efforts
to complete the Milestone as quickly as possible thereafter.
6. ACCEPTANCE AND PRODUCTION
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6.1. CONTRACTOR RESPONSIBILITIES. Contractor shall perform all work
necessary for the manufacturing and delivery of SMs, in
accordance with the Specification and the Statement of Work.
6.2. ACCEPTANCE TESTING.
(a) ACCEPTANCE CRITERIA. A mutually acceptable Acceptance Test
Plan will be created by the Parties and used to verify
that each Deliverable subject to Acceptance Testing in
accordance with the Statement of Work meets the Acceptance
Criteria defined in the SOW for such Deliverable. Each
such Acceptance Test Plan shall include the scope,
Acceptance Criteria, parameters to be tested, and an
objective measurement for passing or failing, as well as
other mutually agreed-upon parameters. If the Parties
agree to conduct future Acceptance Testing in relation to
new versions of SMs (including new versions of SM Hardware
and SM Software), the Acceptance Test Plan, Approval and
Acceptance process will follow the process described in
this Agreement. For Deliverables in the Milestone Payment
Schedule which do not require testing, Acceptance will
occur upon satisfying the Acceptance Criteria defined in
the SOW for that Milestone.
(b) ACCEPTANCE TEST PLAN APPROVAL. Contractor shall submit an
Acceptance Test Plan to WildBlue for each Deliverable that
is subject to Acceptance Testing no later than sixty (60)
days before the relevant Milestone subject to Acceptance
Testing. WildBlue will have two (2) weeks to provide a
written response to Contractor with respect to the
proposed Acceptance Test Plan and have the right to make
reasonable modifications to such draft to make it conform
to the Specifications and the requirements of this
Agreement. Each final Acceptance Test Plan must be
approved by both Parties within two (2) weeks after
WildBlue's written response to Contractor. If the Parties
cannot reach agreement regarding an applicable Acceptance
Test Plan in accordance with the two (2) week time frame
set forth above, the expedited dispute resolution process
of Section 22.2(b) will be applied.
(c) ACCEPTANCE TESTING. For each Deliverable that is subject
to Acceptance Testing, Contractor shall perform formal
testing on first article production units in accordance
with the approved Acceptance Test Plan on or prior to the
date specified for initial delivery of such Deliverable.
WildBlue representatives shall be invited to review the
test configuration and witness the formal testing. Upon
successful completion of testing, Contractor will deliver
to WildBlue a certification that the applicable
Deliverable has met the applicable Acceptance Criteria, a
copy of the Acceptance Test results and any request for
waivers or deviations. Upon delivery of these items
WildBlue shall have five (5) days to notify Contractor in
writing confirming that Acceptance Testing has been
satisfactorily completed or indicating that the
Deliverable has failed to pass the Acceptance Testing. Any
determination of failure shall be based solely on
nonconformity with the Acceptance Test Plan and shall be
accompanied by a notice containing reasonably detailed
information regarding the reasons for the failure and
copies of applicable test documents. Any Deliverable that
meets the applicable Acceptance Criteria or that is not
rejected or provisionally accepted within such five (5)
day period shall be deemed to have been "Accepted." In the
event Contractor receives notification that a Deliverable
has failed the relevant
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Acceptance Test Plan, Contractor agrees to use its
commercially reasonable best efforts to correct the
defects identified in the notice and upon completion of
acceptance testing resubmit the items listed above to
WildBlue. Contractor will not be authorized to deliver or
invoice WildBlue for SM units of a given version until
that version has been "Accepted." The failure of an SM
version to satisfy the applicable Acceptance Test Plan
shall be subject to the cure period and procedures set
forth in Section 5.4 above. In the event that Contractor
is unable to deliver an SM that satisfies the applicable
Acceptance Test Plan within the cure period, WildBlue
shall have the remedies set forth in Section 5.4.
(d) INDEPENDENT TESTING. WildBlue may perform additional
testing on Deliverables. If Acceptance testing, performed
by WildBlue after the Deliverable has been Accepted in
accordance with 6.2(c) identifies a Defect in that
Deliverable, WildBlue shall inform Contractor in writing
and describe the alleged Defect and the test conditions
under which the Defect was identified. Contractor will
have fourteen (14) days to provide a response either
disputing the allegation of failure, requesting a Waiver
or concurring with the alleged Defect. If Contractor
concurs with WildBlue's finding, Contractor will submit a
corrective action plan covering SMs of the affected
version which are under Warranty or Extended Warranty
coverage and Contractor will suspend future deliveries of
that version until successful demonstration of the fixes
called out in the corrective action plan. A request for a
Waiver will be handled in accordance with the provisions
of this Agreement. If Contractor disputes WildBlue's
allegation of failure, Contractor will provide WildBlue
with a written response describing the reasons why the
WildBlue test results do not indicate a Defect along with
any supporting test data.
(e) PROVISIONAL ACCEPTANCE.
(i) Without waiving any of its rights under this
Section 6.2, WildBlue may, prior to Acceptance,
provisionally accept the initial *** SMs described
in Schedule 8 that have not satisfied the
Acceptance Test Criteria by notifying Contractor in
writing of WildBlue's "provisional acceptance."
Such provisional acceptance shall be accompanied by
a notice indicating the Defects identified in such
SMs (including copies of the applicable test
documents, if any) and requiring Contractor to
correct such Defects within the Make-Good Period
defined below.
(ii) SMs provisionally accepted under paragraph (i)
above are counted as full deliveries for purpose of
the WildBlue's obligation to make payment
(including the associated NRE Payment) and for ***.
If (1) the provisionally accepted SMs have Hardware
related Defects and SMs with Hardware that meets
the Specifications in all respects are not
available for delivery forty-five (45) days from
the Initial SM Delivery date (Milestone 12 of
Schedule 7) or (2) the provisionally accepted SMs
have a Software Defect and Contractor has not
corrected the Software Defect through a Major
Release, Point Release or Software Patch, within
two and one half (2.5) months after the Initial SM
Delivery Date (each a "Make Good Period"),
Contractor shall refund such NRE Payment associated
with delivery of those provisionally accepted SMs
within thirty (30) days after the end of the Make
Good Period. Notwithstanding the foregoing, if the
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satellite delivery to WildBlue occurs prior to ***,
thirty (30) days will be added to the each of the
Make Good Periods.
(iii) WildBlue has the right to return to Contractor SMs
provisionally accepted pursuant to paragraph (i)
above that contain Hardware Defects, at any time
within twelve (12) months of the SMs having been
delivered to WildBlue. Contractor shall provide to
WildBlue a credit of fifty percent (50%) of the
original unit purchase Price of any such returned
SMs and permit WildBlue to apply such credit
towards the purchase Price for SMs that meet the
requirements of the Acceptance Test Plan in all
respects.
6.3. QUALITY ASSURANCE. Contractor shall maintain compliance with its
ISO 9001 series approach to quality in the performance of its
obligations under this Agreement. As part of its quality
assurance obligations, Contractor shall conduct testing of SMs
after Acceptance (or provisional acceptance) of such SM version
in accordance with reasonable industry practices. If testing of
SMs indicates a problem with the quality of the SMs generally
based on evidence of failure of the SMs, then Contractor will
provide an plan to correct problem within two (2) weeks after
notice of such problems by WildBlue.
7. PHYSICAL APPEARANCE AND BRANDING
7.1. PHYSICAL APPEARANCE. Contractor shall submit a physical design to
WildBlue for review and approval. Contractor shall incorporate
all reasonable suggestions made by WildBlue regarding physical
design and appearance of the WBSMs. If incorporating WildBlue's
suggestions regarding physical design and appearance (including
XX Xxxxx) materially impacts Contractor's cost or schedule,
Contractor shall be entitled to receive an equitable adjustment
in Price and/or schedule in a manner consistent with Section 12.1
below.
7.2. XX XXXXX. Branding of WBSMs shall be determined solely by
WildBlue. WildBlue has the right (but not the obligation) to put
a Contractor logo (provided by Contractor, which may be a name
other than "ViaSat"), another logo (excluding that of a competing
manufacturer of satellite terminals) and/or a WildBlue logo on
the WBSM at a location and size of WildBlue's choosing. If
WildBlue opts not to include a Contractor logo, WildBlue will
include a unique brand name which distinguishes Contractor's
WBSMs from other manufacturer's WBSMs and will not use such brand
name on WBSMs from any other manufacturer. WildBlue agrees that
it will treat Contractor no less favorably regarding the
placement of brand name and logos on the WBSMs than other
manufacturers of WBSMs for WildBlue. Contractor shall affix to
each production WBSM, the Marks selected by WildBlue for
inclusion on WBSMs, in the form and location determined by
WildBlue.
7.3. USE OF CONTRACTOR MARKS. Contractor grants WildBlue a
non-exclusive, non-transferable (except as permitted under
Section 25.1 (Assignment)), royalty-free license (without the
right to grant sublicenses) to use and reproduce the Contractor
Marks set forth on Schedule 12, as may be amended upon mutual
agreement of the Parties from time to time, in accordance with
Contractor's reasonable guidelines solely for use on WBSMs, or
for advertising, promotional or other purposes having to do with
the WildBlue business. WildBlue agrees to state in appropriate
places on all materials using Contractor Marks that the
Contractor Marks are trademarks of Contractor and to include the
symbol (TM) or (R) as appropriate. Contractor agrees that
WildBlue may utilize Contractor Marks to advertise Contractor's
participation as a SM vendor. Contractor must obtain permission
in writing
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from WildBlue to use the WildBlue logo or the WildBlue trade
name. Subject to Section 25.11, Contractor may use the WildBlue
logo or WildBlue trade name in connection with listing and
describing WildBlue as a customer of Contractor in its
advertising, promotion, marketing and sales materials.
Notwithstanding the foregoing, neither Party shall make any
statement that acts as an implied or direct endorsement of any
product (except for the WBSM) or service of the referencing Party
by the other Party without such other Party's prior written
consent.
7.4. DISPUTE RESOLUTION. If the Parties cannot reach agreement
regarding matters arising under Section 7.1, the Parties will
engage in the Dispute Resolution procedure set forth in Section
22.
8. ORDERING
8.1. ORDERS GENERALLY. During the Term of this Agreement, Orders for
SMs shall be issued in accordance with Section 8.2. Any term or
condition set forth in an Order or other document submitted by
either Party that is inconsistent with or in addition to this
Agreement will be of no force or effect, unless mutually and
expressly agreed by the Parties in writing. Subject to the terms
of this Agreement, Contractor shall accept all Orders issued by
WildBlue in accordance with the terms of this Agreement and
deliver such Orders in accordance with the terms of the Order and
the terms and conditions of this Agreement. Title and risk of
loss or damage shall transfer, upon Contractor's delivery to the
carrier of WildBlue's choice at Contractor's designated shipping
point within the contiguous U.S. Except as expressly set forth
herein, delivery schedule changes must be mutually agreed to in
writing. If Contractor obtains shipping insurance on behalf of or
for the benefit of WildBlue, WildBlue shall be responsible for
filing, processing and pursuing all claims under such insurance
policy.
8.2. ORDER AND DELIVERY FORECAST. WildBlue shall provide Contractor
with a delivery forecast and order commitment as required by
Schedule 9 (the "SM ORDER AND DELIVERY FORECAST"). A monthly
delivery forecast becomes an Order through the process defined in
Schedule 9. Subject to the terms hereof, each Order shall include
delivery instructions, packaging type, purchase order number,
quantity, applicable Price (set forth in Schedule 11) and
statement that the Order is being placed under this Agreement.
Contractor acknowledges that the WildBlue Order Forecast will be
binding only as set forth in Schedule 9. WildBlue may vary the
forecast as provided in Schedule 9.
8.3. INITIAL ORDER. Subject to Contractor delivering the XX-Xx by ***,
WildBlue agrees to purchase from Contractor *** thousand WBSMs
(the "INITIAL ORDER"), which includes the Initial SM Delivery.
The delivery schedule for the Initial Order shall be established
with the first WBSM Order and Delivery Forecast provided by
WildBlue in accordance with Schedule 9. The delivery schedule and
quantities for the Initial Order shall be consistent with
Schedule 8 (Minimum Order Commitment and Maximum Capacity
Commitment). The delivery schedule may be modified in subsequent
months consistent with Schedule 8 and Schedule 9. The time period
during which WildBlue must complete purchase of the Initial Order
is a function of the actual date for the completion of First
Article Testing for the SM-B version as defined in Schedule 8.
8.4. ORDERS FROM AFFILIATES AND AUTHORIZED RESELLERS. Affiliates and
Authorized Resellers shall be entitled to purchase WBSMs from
Contractor under Price, Order, Delivery and Warranty terms
consistent with this Agreement and such orders shall count toward
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satisfaction of all minimum purchase commitments of WildBlue
hereunder, including the Initial Order; provided that *** shall
not be required in such Authorized Reseller agreements.
Contractor and WildBlue shall use commercially reasonable efforts
to mutually agree on a form of purchase agreement within ninety
(90) days after the Effective Date, under which Authorized
Resellers may order and purchase WBSMs. Such purchase agreement
will include a license of Contractor Marks to Authorized
Resellers consistent with the terms of this Agreement. Contractor
shall notify WildBlue of orders for WBSMs placed by Affiliates
and Authorized Resellers on a quarterly basis. Contractor agrees
that, without the prior written consent of WildBlue, no Order by
an Affiliate or Authorized Reseller shall be delivered unless and
until all Orders for the relevant time period by WildBlue have
been delivered.
8.5. SHORTFALLS AND CANCELLATION OF WILDBLUE ORDERS.
(a) Without WildBlue's prior written approval, Contractor
shall not deliver incomplete Orders. WildBlue may refuse
to accept a partial delivery or an overage. If Contractor
fails to deliver all of the SMs in a WildBlue Order as
required by the Order (a "SHORTFALL"), and the delivery
delay is not requested by WildBlue or excused under
Section 15 (an "UNEXCUSED SHORTFALL"), then on the date
the Order was due Contractor shall give WildBlue a written
schedule setting forth the schedule on which Contractor
will deliver the shortfall (the "MAKE-UP ORDER"). Within
five (5) days after WildBlue receives such schedule from
Contractor, WildBlue may elect, by giving written notice
to Contractor, to delay delivery of all or any portion of
the Unexcused Shortfall beyond the dates in Contractor's
schedule (for a period not to exceed 120 days), or delete
all or any portion of the Unexcused Shortfall from the
Order commitment. If WildBlue accepts a partial delivery,
WildBlue will have no obligation to pay for any portion of
the delivery until the earlier of (i) delivery of the
Shortfall by Contractor, and (ii) notice from WildBlue
that it has elected to delay (for a period not to exceed
120 days) or delete all or any undelivered portion of the
affected Order (in which case WildBlue shall be required
to pay for only that portion of the Order actually
received). Notwithstanding any of the foregoing,
WildBlue's acceptance of partial deliveries will not
constitute a waiver of WildBlue's rights or a release of
Contractor's obligations under this Agreement.
(b) For the Initial Order, if WildBlue elects to take delivery
of an Unexcused Shortfall, Contractor shall ***. For
purposes of determining when Contractor has delivered an
SM for which Contractor is required to *** to WildBlue ***
under this Section 8.5(b), units of SMs delivered after
the Unexcused Shortfall shall be applied first to make up
the Unexcused Shortfall. If the delay in making up an
Unexcused Shortfall exceeds four (4) weeks, the minimum
commitment agreed to by WildBlue for the applicable
monthly period and for the Initial Order shall be reduced
by the amount of the entire Order to which the Unexcused
Shortfall relates.
(c) After the completion of the Initial Order, if WildBlue
elects to take delivery of an Unexcused Shortfall,
Contractor shall *** WildBlue *** subject to the Unexcused
Shortfall.
(d) If Contractor becomes aware of any circumstance involving
Contractor or a sub-contractor of Contractor that would
threaten the timely or full delivery of an Order,
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Contractor shall immediately notify WildBlue of such delay
and the cause of such delay. If requested by WildBlue,
Contractor shall promptly provide a written plan for
correction of such delay.
8.6. MINIMUM ORDER QUANTITY. After completion of the Initial Order, if
WildBlue places an Order for fewer than five thousand (5,000) SMs
during any month, Contractor shall have the right to refuse to
accept such Order. If Contractor elects to accept an Order for
fewer than 5,000 SMs, Contractor shall deliver such SMs in
accordance with the terms of this Agreement. If WildBlue fails to
order 5,000 SMs for two (2) consecutive months or three (3) out
of any period of six (6) consecutive months and thereafter places
an Order of greater than 5,000 SMs, Contractor will be entitled
to a one time payment to cover reasonable costs associated with
reinitiating volume production of SMs to enable Contractor to
fulfill the Order.
9. SHIPPING AND RELATED MATTERS
9.1. SERIAL NUMBERS. Contractor shall xxxx each WBSM produced with a
unique serial number. Contractor shall keep accurate records as
to the WBSMs, by serial number, that were delivered to WildBlue
and Authorized Resellers. Upon WildBlue's request, Contractor
shall provide a report in electronic format which identifies the
serial numbers received by any purchaser.
9.2. PACKING AND PACKAGING. To the extent possible, orders will be
packaged in blocks of twenty-four (24) individual WBSMs or
multiples thereof. All deliveries to WildBlue pursuant to this
Agreement shall be packaged in a manner consistent with industry
standards for cable modems and packed for safe delivery to their
destinations without damage. Wholesale, single color packaging is
included in the purchase price. Contractor shall submit a retail
outside packaging design and cable options package (to include
Ethernet and USB cables) ("RETAIL PACKAGE") to WildBlue for
WildBlue's approval on or before ***. The price for the Retail
Package will be negotiated between the two parties. The Retail
Package shall be an option for WildBlue. If the Retail Package
option is requested WildBlue may purchase WBSMs with both the
standard packaging and Retail Packaging. Packaging type will be
specified on Orders.
9.3. DELIVERY AND STORAGE. Unless otherwise specified in an Order
accepted by Contractor, all shipments hereunder shall be FOB
Contractor's designated site within the contiguous U.S. WildBlue
may upon five (5) days prior written notice elect to defer a
scheduled shipment for up to ninety (90) days and Contractor will
store SMs in its designated warehouses for up to ninety (90) days
at no cost to WildBlue and Contractor shall retain title and risk
of loss during storage. Thereafter, Contractor shall continue
storage and WildBlue shall pay Contractor *** per unit per month
for such continued storage. Such election to store SMs does not
relieve WildBlue of the requirement to pay the purchase Price for
such SM units, which may be invoiced on the originally scheduled
delivery date.
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10. LICENSES, PROPRIETARY RIGHTS AND ESCROW
10.1. OWNERSHIP.
(a) BACKGROUND INFORMATION. As between the Parties, each Party
hereto shall have and retain exclusive ownership of its
Background Information, subject to the rights granted to
the other Party under this Section 10.
(b) FOREGROUND INFORMATION.
(i) As between the Parties, and except as provided in
Section 10.1(b)(iv), Contractor shall have and
retain exclusive ownership of Contractor Foreground
Information, subject to the rights granted to
WildBlue under this Section 10.
(ii) As between the Parties, WildBlue shall have and
retain exclusive ownership of WildBlue Foreground
Information, subject to the rights granted to
Contractor under this Section 10.
(iii) JOINT FOREGROUND INFORMATION. Contractor and
WildBlue shall have and retain joint ownership of
all Joint Foreground Information without any
appropriate right or obligation of accounting to
the other Party for profits from exploitation of
the rights. With respect to jointly owned patent
rights and rights in inventions, the Parties will
provide reasonable cooperation and assistance to
one another in the preparation, filing and
prosecution of any such patents. The Parties will
divide any costs and expenses incurred by the
Parties preparing, filing, and prosecuting a
particular patent application or patent. If a Party
does not wish to pay the costs and expenses
associated with preparing or filing a particular
patent application, it may notify the other Party
in writing. In such case, the notified Party may
either abandon the patent application in question
or may proceed with the application, in which event
the other Party will not have any ownership of any
resulting patent.
(iv) INTERFACE SPECIFICATION IS FOREGROUND INFORMATION.
As between the Parties, WildBlue shall have and
retain exclusive ownership of all IS Foreground
Information. Except for Contractor's rights in the
Contractor Background Information, Contractor
hereby irrevocably assigns to WildBlue all right,
title and interest worldwide in and to the IS
Foreground Information and all applicable
Intellectual Property Rights related to the IS
Foreground Information that Contractor has or may
acquire. Contractor will execute, verify and
deliver such documents and perform such other acts
(including appearances as a witness) as WildBlue
may reasonably request for use in applying for,
obtaining, perfecting, evidencing, sustaining and
enforcing such it rights in the IS Foreground
Information and the assignment thereof. Contractor
hereby irrevocably designates and appoints WildBlue
and its duly authorized officers and agents as its
agent and attorney in fact, which appointment is
coupled with an interest, to act for and in its
behalf to execute, verify and file any such
documents and to do all other lawfully permitted
acts to further the purposes of this
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paragraph with the same legal force and effect as
if executed by Contractor.
(c) RESERVATION OF RIGHTS. There are no implied licenses under
this Agreement, and any rights not expressly granted by a
Party to the other Party hereunder shall be reserved by
such Party.
10.2. GRANTS OF LICENSES TO CONTRACTOR.
(a) DEVELOPMENT LICENSE TO USE WILDBLUE INFORMATION. WildBlue
hereby grants Contractor a perpetual, worldwide,
royalty-free (except as set forth in Section 16.3(b)),
non-exclusive, non-transferable (except in accordance with
Section 25.1 hereof) license to use, reproduce, modify,
and create derivative works of WildBlue Background
Information, WildBlue Foreground Information, IS
Foreground Information and Third Party Information
provided by WildBlue and required by Contractor for the
sole purpose of designing and developing SMs(the
"DEVELOPMENT LICENSE").
(b) WILDBLUE SM PRODUCTION AND DISTRIBUTION LICENSE FOR WBSMS.
WildBlue hereby grants to Contractor a worldwide,
royalty-free, non-exclusive, non-transferable (except in
accordance with Section 25.1 hereof) license to (1) use
WildBlue Background Information, WildBlue Foreground
Information, IS Foreground Information and Third Party
Information provided to Contractor by WildBlue
(collectively, "WB IP"), solely to produce, manufacture,
distribute and support WBSMs on behalf of WildBlue (the
"WBSM PRODUCTION LICENSE").
(c) WILDBLUE SM PRODUCTION AND DISTRIBUTION LICENSE FOR OTHER
SMS. WildBlue hereby grants to Contractor a worldwide,
royalty-free, perpetual, non-exclusive, non-transferable
(except in accordance with Section 25.1 hereof) license to
use the WB IP, apart from the performance enhancing proxy
("PEP"), solely to produce, manufacture, distribute and
support SMs on behalf of third parties (the "SM PRODUCTION
LICENSE").
10.3. GRANT OF LICENSES TO WILDBLUE.
(a) Distribution License. Subject to Sections 10.4 and 10.7,
Contractor hereby grants to WildBlue a worldwide,
perpetual, royalty-free, non-exclusive, right and license
(with the right to sublicense) to use, have used, operate,
display, demonstrate, market, distribute, lease and/or
sell, without out rights to manufacture or have made, and
authorize others to perform the foregoing, the Contractor
Background Information and Contractor Foreground
Information as incorporated with and into SMs.
(b) IS Background Information License. Contractor grants to
WildBlue a worldwide, nonexclusive, royalty-free,
perpetual and irrevocable right and license to the IS
Background Information, with a right to sublicense to
other WBSM manufacturers, to:
(i) make, have made, use, reproduce, market,
distribute, offer to sell and sell, and import
WBSMs; and
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Xxxxx 0, 0000
(xx) copy, reproduce, publish, display (publicly or
otherwise), and make derivative works of the IS
Background Information.
Contractor acknowledges that the IS Background Information
will be publicly disseminated and Contractor waives any
right of trade secret in and to the IS Background
Information. Contractor further acknowledges that, in the
event the license granted in this Section 10.3(b) is
terminated, User licenses in effect at the time of such
termination shall be unaffected by the termination and
shall remain in full force.
(c) Development Source Code License. Contractor hereby grants
to WildBlue a non-exclusive, royalty free, worldwide,
non-transferable (except as provided in the Assignment
provision) license to access, utilize, modify and adapt
(without the right to distribute) source code versions of
Contractor Background Information and the Contractor
Foreground Information solely for internal evaluation,
development and testing purposes in connection with WBSMs
or products related thereto.
10.4. SOFTWARE LICENSES AND RIGHTS. Commencing upon delivery of the
WBSMs to Users, Contractor shall grant to Users a perpetual,
nontransferable, nonexclusive, fully-paid, royalty-free,
irrevocable, and a world-wide right and license (or sublicense
for third party software) to use, copy, access, display, operate
and process the Software in connection with the intended use of
the WBSMs. Such User license shall contain, at Contractor's
option, the following terms:
(a) Users shall agree not to decompile or reverse assemble all
or any portion of the Software in an effort to obtain the
Source Code for the Software, nor shall it authorize
others to do so, nor rent, lease, grant a security
interest in, or otherwise transfer rights to the Software.
(b) Users will not create derivative works of the Software or
modify the code to the Software, nor shall it authorize
others to do so; provided, however, the foregoing shall
not in any manner whatsoever limit WildBlue's, its
Authorized Resellers and User's rights to use the Software
in accordance with Contractor's instructions or otherwise
limit WildBlue's rights to use any tools provided with the
Software.
WildBlue hereby agrees to use the Software in conformance with
the requirements set forth in paragraphs (a) -and (b) above.
10.5. DOCUMENTATION. Contractor shall deliver to WildBlue at no
additional charge, the Documentation in accordance with Schedule
6. Subject to Contractor's copyrights and the restrictions set
forth in Schedule 15, Contractor hereby grants WildBlue a
perpetual, world wide, non-exclusive, sublicensable (to
Authorized Resellers) license to use, reproduce, publish, modify,
and create derivative works of Documentation. WildBlue may elect
upon one hundred eighty (180) days prior written notice to not
include Contractor's manual within the WBSM and have the unit
Price reduced by ten cents ($0.10).
10.6. INTELLECTUAL PROPERTY POOL. WildBlue intends to create an
intellectual property pool similar to that created by CableLabs
for the DOCSIS standard. Contractor will negotiate in good faith
with WildBlue to enter into the agreement for such intellectual
property pool.
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10.7. SOURCE MATERIALS LICENSE. Subject to the terms and conditions of
this Agreement, the Escrow Agreement and any restrictions set
forth in third party license agreements (including Major
Component Vendors), Contractor hereby grants to WildBlue a
current non-exclusive, perpetual, royalty free, worldwide,
non-transferable (except as provided in the Assignment provision)
license to access, utilize, modify and adapt Source Materials,
make, have made, use, have used, sell, lease or otherwise
transfer WBSMs and to provide or have a third party provide
support and maintenance or Feature Work (as defined below) for
WBSMs in accordance with Section 12.2(a)(iii). WildBlue hereby
covenants not to exercise the rights granted to it in this clause
10.7 except upon the valid release of the Source Materials
pursuant to a release event ("RELEASE EVENT") as provided in this
Agreement and the Escrow Agreement. WildBlue shall be obligated
to maintain the confidentiality of the released Source Materials
as Confidential Information hereunder. Release Events shall
include the following events: (a) ViaSat is unable or unwilling,
after fourteen (14) days notice from WildBlue, to provide support
and maintenance for WBSMs in accordance with this Agreement; (b)
ViaSat is subject to an Insolvency Event; (c) WildBlue requires
Feature Work to be performed on WBSMs and ViaSat is unwilling to
perform the Feature Work or the parties are unable to agree on
the terms under which ViaSat would perform such Feature Work in
accordance with Section 12.2(a)(iii); (d) termination due to
breach of a material term of the Agreement by ViaSat; or (e) at
the end of the Term, ViaSat will not extend the Agreement on
commercially reasonable terms. While WildBlue is in material
breach of the Agreement, such Source Materials shall not be
released to WildBlue. The Parties shall execute the Escrow
Agreement in the form attached hereto as Schedule 18, subject to
modifications reasonably requested by the escrow agent thereunder
and mutually agreed to by the Parties, upon the earlier of (1)
execution of an agreement between the Parties relating to the
production of SMTS and (2) sixty (60) days from the date hereof.
10.8. CONTRACTOR'S RIGHTS OF SALE TO OTHER SERVICE PROVIDERS AND END
USERS. Subject to Contractor's compliance with the terms and
conditions of this Agreement, Contractor is entitled to and
authorized to sell SMs to Service Providers and End Users
consistent with the terms and conditions of this Agreement.
11. TRAINING
11.1. TRAINING. Contractor will provide WildBlue training in accordance
with the following:
(a) Within thirty (30) days after the delivery of the first
production WBSMs, Contractor shall provide WildBlue
employees (or their designees), at no additional cost or
expense (other than attendees own travel and related
expenses to Contractor's training facility, which shall be
paid for by WildBlue), one comprehensive training course
(with content sufficient to train employees in the use and
installation of the WBSM) for attendance by up to
twenty-five (25) WildBlue designated individuals. Such
training course shall include written course materials for
each attendee.
(b) Contractor shall develop and furnish all training
materials for the initial training referred to in
paragraph (a) in a form that is sufficient to enable
WildBlue's designated representatives to provide Tier 1
support for WBSMs.
(c) Contractor shall provide up to twice a year remedial
training and training on any changes, updates and
enhancements to the WBSMs, or training otherwise
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requested by WildBlue to enable WildBlue and its
Authorized Resellers to be capable of performing all
necessary services, including installation, operation,
maintenance, provisioning, monitoring and control of the
WBSMs. Such additional training shall be at Contractor's
expense if changes to the WBSMs were made due to a Defect
in the WBSMs . Other training will be provided at the
rates set forth in Schedule 10. Contractor will provide
WildBlue with all updates, if appropriate, to the training
materials provided in order to enable WildBlue to maintain
the skill level of its personnel in light of Contractor's
changes to the WBSM.
(d) Subject to Schedule 15, Contractor grants to WildBlue
license to use, modify and distribute all training
materials provided by Contractor to WildBlue under this
Section 11.
12. CHANGE PROCEDURES
12.1. DEVELOPMENT PHASE CHANGE PROCEDURES. During the Term, WildBlue
may require changes to the Specification. Within thirty (30) days
of WildBlue's written requested change, Contractor shall provide
WildBlue with a summary of the effect of such changes on the
Price (recurring and non-recurring) and time required for
performance, and WildBlue shall elect whether to pursue such
change. Should any such change increase or decrease the Price of
or time required for performance of Contractor's or its
subcontractors' obligations hereunder, Contractor shall be
entitled to a reasonable adjustment in the Milestone Payments,
Price, development schedule or delivery schedule, as applicable.
Price adjustments shall account only for the net cost impact
incurred by Contractor as a result of the change plus a
reasonable profit thereon. Contractor will provide reasonably
detailed back-up cost data to support its claim for adjustment.
12.2. POST-DEVELOPMENT PHASE CHANGE PROCEDURES.
(a) If WildBlue desires to add or remove WBSM Features or
functions, WildBlue shall make available to Contractor a
right of first offer to perform such Feature/function work
("FEATURE WORK"):
(i) WildBlue shall provide to Contractor in writing
details relating to the proposed Feature Work
("WILDBLUE PROPOSED CHANGE");
(ii) Not more than thirty (30) days after receipt of a
WildBlue-proposed Change, Contractor shall propose
a Price and a development, acceptance and delivery
schedule for the WildBlue Proposed Change;
(iii) During the thirty (30) days after WildBlue's
receipt of Contractor's proposal, the Parties shall
negotiate in good faith regarding the terms and
conditions (including price and schedule) for the
incorporation of the WildBlue Proposed Change into
the WBSM. If Contractor and WildBlue reach
agreement on such terms and conditions, Contractor
shall design, develop and/or manufacture or have
manufactured such WildBlue Proposed Change in
accordance with the negotiated terms. Should the
Parties not agree upon terms within this thirty
(30) day period, WildBlue will have the right to
engage a third party to design, develop and
manufacture WBSMs incorporating the WildBlue
Proposed Change (the
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"REVISED SM"). If WildBlue engages a third party to
develop the new Features or functions of the
Revised SM, Contractor will, subject to any
restrictions set forth in third party license
agreements (including Major Component Vendors),
provide WildBlue (and/or its third party designee)
(1) a worldwide, non-exclusive, non-transferable,
perpetual, royalty free license to access, utilize
copy, modify and adapt Contractor Source Materials
solely for the development, distribution and
support of the new Features and functions, and (2)
such other resources at fair market rates as are
necessary to enable the third party to develop the
new Features and functions. To the extent that any
such new Features or functions incorporate or are
based on the Contractor Background Information or
Contractor Foreground Information, the use of such
Intellectual Property is limited to the licenses
granted under Section 10.
(b) Contractor shall not make changes to the WBSMs to be
distributed hereunder unless approved in writing by the
WildBlue Program Manager; provided however, that
Contractor is authorized, without WildBlue's prior
approval, to make changes that do not affect an SM's
compliance with the Specifications.
12.3. CONTRACTOR-PROPOSED CHANGES. All Contractor-proposed changes to
the Specification shall be submitted to WildBlue in a written
proposal that describes in reasonable detail the proposed change
and the technical, performance and economic (including unit
price, non-recurring costs and delivery) effects on the SMs and
the WildBlue System. The Parties shall negotiate in good faith
and, if agreement is reached, Contractor's Price, non-recurring
payments and delivery schedules shall be adjusted as applicable;
provided, however, in no event shall WildBlue be required to
accept a Contractor proposed change.
12.4. CHANGE ORDERS. All changes agreed to by the Parties pursuant to
this Section 12 shall be in writing signed by both Parties
("CHANGE ORDERS").
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13. PROGRAM MANAGEMENT
Each Party shall designate one employee with decision-making authority
to serve as the principal technical contact for such Party during the
Term (each a "PROJECT MANAGER"). The Project Managers shall work
together to ensure that the development and manufacturing efforts
hereunder proceed in a timely manner. Either Party may change its
Project Manager at any time and from time to time by giving the other
Party written notice. Each Party shall bear its own costs and expenses
incurred in connection with participation in such meetings.
14. CONTRACTOR'S USE OF SUBCONTRACTORS AND MANUFACTURING FACILITY
14.1. Excluding components provided by WildBlue or its suppliers,
Contractor shall be solely responsible in all respects for
obtaining the components necessary to manufacture the WBSMs,
including without limitation, managing relationships with
component vendors and sub-contractors and maintaining adequate
controls on component quality and supply. Contractor will not
enter into exclusive arrangements with component vendors that
would preclude the manufacture of WBSMs by other SM
manufacturers.
14.2. In the event that Contractor becomes aware of circumstances
suggesting that a component vendor or sub-contractor is likely to
breach its obligations to provide components and/or services to
Contractor for any reason and if such breach will materially
impact Contractor's ability to meet its obligations hereunder,
Contractor shall so notify WildBlue. Upon such breach Contractor
will develop an action plan to recover from such breach and
promptly present said plan to WildBlue for recommended changes,
if any, to such plan.
14.3. Contractor shall notify WildBlue in writing of all Major
Component Vendors that Contractor selects to assist Contractor
with the development, modification and supply of WBSMs hereunder.
"MAJOR COMPONENT VENDOR" means a vendor, supplier or
subcontractor selected by Contractor to develop, modify or supply
existing application specific integrated circuits for MAC
processing, downstream demodulation and decoding and upstream
modulation and coding required to meet the Specification (such
components referred to as "MAJOR COMPONENTS"). The selection of
Major Component Vendors is subject to WildBlue's prior written
approval, which consent shall not be unreasonably withheld,
conditioned or delayed. Contractor shall make no change in a
Major Component Vendor without the prior written consent of
WildBlue, which consent shall not be unreasonably withheld,
conditioned or delayed. Contractor shall ensure that its contract
with Major Component Vendors shall be on a non-exclusive basis
such that the Major Component Vendor can provide components to
other manufacturers of WBSMs. In the event that Contractor
becomes aware of circumstances suggesting that a Major Component
Vendor is likely to breach its obligations to provide components
and/or services to Contractor for any reason, Contractor shall so
notify WildBlue, and shall use commercially reasonable best
efforts to enforce its contractual rights against such vendor or
sub-contractor to minimize the adverse impact to the WildBlue
program and schedule. WildBlue may reasonably reject or request
replacement of any Major Component Vendor by specifying the
reasons therefor. WildBlue can require the assignment of
contracts for Major Components if Contractor is in breach of
those contracts. Contractor will ensure that WildBlue will be
named a third party beneficiary in any contracts with Major
Component Vendors.
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14.4. Contractor shall use a facility (including a third party
facility) for the manufacture of WBSMs approved by WildBlue, such
approval not to be unreasonably withheld.
14.5. If Contractor selects a Major Component Vendor pursuant to
section 14.3, Contractor shall use commercially reasonable
efforts to negotiate terms and conditions that are consistent
with the following provisions:
(a) Contractor will ensure that Major Components Vendors will
agree to sell and/or license to other WBSM manufacturers
on fair and reasonable terms no less favorable than terms
Contractor receives. Any difference in material terms
between other WBSM manufacturers and Contractor must be
approved in writing by WildBlue. Contractor will ensure
that Major Component Vendors are required to notify
WildBlue if Contractor is in breach of the agreement with
such Major Component Vendor.
(b) WildBlue may purchase Major Components under substantially
the same terms, cost and timeframe as Contractor.
(c) The interfaces to the downstream physical layer and
upstream physical layer components shall be well
documented and such documents must be made available to
WildBlue for distribution to competing vendors of such
components at no cost. Such documentation must be thorough
enough so that other components built in compliance with
such documentation will interoperate within the WildBlue
system.
(d) To the extent required to develop the SMs, any cable modem
and SM reference designs, evaluation boards, software
releases and MAC source code releases shall be made
available to WildBlue, and other manufacturers identified
by WildBlue, at the same time, and on the same terms and
conditions (including, without limitation, cost) as such
materials are made available to Contractor.
(e) Cable modem and SM reference designs, evaluation boards
and source code releases must include the same features
and capabilities for all WBSM manufacturers.
(f) If a Major Vendor fails to deliver in a timely fashion so
as to materially breach their subcontract, remedies
available to the Contractor shall include reasonable
license rights and technical support to allow Contractor
to minimize the impact on the SM delivery schedule.
14.6. Within 30 days of Effective Date, WildBlue may chose to contract
directly with a Major Component Vendor to provide a selected
Major Component to Contractor and any other SM supplier and may
direct the Contractor to utilize the selected Major Component in
their WBSM. In that event, the following terms and conditions
will be included in the contract between WildBlue and the Major
Component Vendor:
(a) Major Components Vendors will agree to sell and/or license
to Contractor the components or other deliverables on fair
and reasonable terms no less favorable than terms WildBlue
receives;
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(x) Contractor may purchase Major Components under
substantially the same terms, cost and timeframe as
WildBlue; and
(c) To the extent required to develop the SMs, any cable modem
and SM reference designs, evaluation boards, software
releases and MAC source code releases shall be made
available to Contractor at the same time as such materials
are made available to WildBlue and at no additional cost.
The Parties acknowledge and agree that WildBlue has entered into a
development agreement ***, the terms of which are sufficient to satisfy
the terms of this section. WildBlue shall designate the Contractor as a
WildBlue SM Manufacturing Partner (as defined in such development
agreement).
15. FORCE MAJEURE AND DELAYS
15.1. FORCE MAJEURE.
(a) Except for payment obligations hereunder, no Party shall
be liable for any failure or delay in the performance of
its obligations under this Agreement if and to the extent
it is caused by fire, flood, lightning, earthquake,
elements of nature or acts of God, Governmental acts
(including government approvals of the SM and
import/export issues provided that Contractor has complied
with its obligations to obtain such approvals or
import/export clearances), riots, civil disorders,
rebellions or revolutions in any country, or any other
cause beyond the reasonable control of such Party;
provided, however, that the non-performing Party is
without fault in causing such default or delay, and such
default or delay could not have been prevented by
reasonable precautions and cannot reasonably be
circumvented by the non-performing Party through the use
of alternate sources, workaround plans or other means (any
of the foregoing, a "FORCE MAJEURE EVENT").
(b) In the event of a Force Majeure Event, the non-performing
Party shall be excused from further performance or
observance of the obligation(s) so affected for as long as
such circumstances prevail and such Party continues to use
its commercially reasonable efforts to recommence
performance or observance whenever and to whatever extent
possible without delay. Any Party so delayed in its
performance shall immediately notify the Party to whom
performance is due by telephone (to be confirmed in
writing within five (5) business days of the inception of
such delay) and describe at a reasonable level of detail
the circumstances causing such delay.
(c) If any Force Majeure Event substantially prevents,
hinders, or delays Contractor's performance for more than
one hundred twenty (120) consecutive days, then at
WildBlue's option, WildBlue may terminate or modify any
affected portion of any Order, or terminate this Agreement
in whole or in part, and the charges payable hereunder to
the date of termination shall be appropriately adjusted to
reflect such termination.
(d) Notwithstanding the foregoing provisions of this Section
15.1, if the U.S. Federal Communications Commission or
other U.S. or foreign regulatory or governing body
rescinds or otherwise invalidates WildBlue's
communications license or fails to issue such license in
due course, which substantially impairs the economic
viability of WildBlue (any of the foregoing, a "REGULATORY
FORCE MAJEURE EVENT"), the Parties agree to renegotiate
this Agreement on commercially
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reasonable and mutually acceptable terms in light of the
effects arising from the Regulatory Force Majeure Event,
to the extent such Regulatory Force Majeure is not caused
by the gross negligence or willful misconduct of WildBlue.
15.2. EXCUSABLE DELAY. "EXCUSABLE DELAY" shall mean (i) a Force Majeure
Event that prevents Contractor from timely performing its
obligations hereunder, (ii) WildBlue's failure to timely meet its
material obligations hereunder (following the applicable cure
period, if any, and provided that WildBlue receives written
notice describing in reasonable detail its failure within fifteen
(15) days after the applicable due date, or in the case of
WildBlue Major Component Vendor deliverables as set forth in
Schedule 5, 30 days after the applicable due date) which
adversely affects Contractor's ability to timely perform its
obligations hereunder (but only to the extent of such adverse
effect). In the event of an Excusable Delay, Contractor may stop
work until Contractor can resume performance following cessation
of the Force Majeure Event in accordance with Section 15.1 hereof
or WildBlue resumes or cures performance, as the case may be. In
addition, Contractor shall be entitled to an appropriate
adjustment in the Milestone Dates, Statement of Work or other
applicable production schedule obligations hereunder for any
Excusable Delay (only to the extent not already covered pursuant
to Section 15.3 except that the incentive payment dates in
Schedule 11 shall be adjusted by the delay in the applicable
delivery) and, in the event of an Excusable Delay caused by
WildBlue's failure to perform its obligations hereunder, an
appropriate payment adjustment as mutually agreed by the Parties.
Payment adjustments shall account only for the net non-recurring,
production and other related cost impact incurred by Contractor
as a result of the change plus a reasonable profit thereon.
Contractor will provide reasonably detailed back-up data to
support its claim for such adjustment.
15.3. DELAY DUE TO SATELLITE CONSTRUCTION. If WildBlue reasonably
believes that shipment of the first WildBlue Satellite will be
after *** ("SATELLITE Delay"), WildBlue, will provide written
notice to Contractor. If, at WildBlue's option, WildBlue requests
that Contractor wind down and restart the development program
because of Satellite Delay, WildBlue shall pay reasonable and
mutually agreed upon expenses associated with Contractor's wind
down and restart of the development program. If WildBlue provides
Contractor with written notice of a Satellite Delay, Milestone
Dates, Statement of Work schedules, manufactured SM commitments
(excluding the incentive payment dates in Schedule 11) will be
extended in proportion to the delay relative to Milestone 11
(Initial SM Delivery) (only to the extent not already extended
pursuant to section 15.2). For example, if one quarter (_) of the
way through the development program the satellite ship date is
delayed by 8 weeks, then the Milestone(s) one quarter (_) of the
way between Effective Date and the Initial SM Delivery will be
postponed by 2 weeks, the Milestone(s) half way between Effective
Date and the Initial SM Delivery will be postponed by 4 weeks,
the Milestone 11 and subsequent Milestones by 8 weeks.
15.4. DELAY DUE TO LAUNCH OR SATELLITE FAILURE. In the event of a
launch or satellite failure with respect to a WildBlue satellite,
Contractor shall be entitled to complete its development effort
and receive payment for such effort in accordance with Schedule
7. For Orders in place at the time of such launch failure or
satellite failure, WildBlue shall pay, pursuant to the normal
invoice schedule. If directed by WildBlue in writing, Contractor
shall store such SMs for up to eighteen (18) months at an
additional price of Two Dollars ($2) per unit per month. If, at
WildBlue's option, WildBlue suspends the Order process set forth
in Section 8.2 because of launch failure or satellite failure,
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WildBlue shall pay reasonable and mutually agreed upon expenses
associated with Contractor's wind down and restart of the
production program.
16. PRICES
16.1. GENERAL. Contractor shall offer WBSMs for sale to WildBlue,
Affiliates, and Authorized Resellers at the unit Prices set forth
in Section 16.2. Provided that the monthly delivery order
requirements are consistent with Schedule 8 and subject to the
provisions of Section 8.6, the WBSM unit Prices will not exceed
the volume prices defined in Schedule 11 (SM Pricing Schedule),
subject to equitable increase for changes to the WBSM
requirements.
16.2. SM PRICES BY CONFIGURATION. The Price per unit for the SM
described in the "iSKY Satellite Modem Development Partner &
Manufacturer Request for Proposal" dated July 7, 2000 is ***. It
is WildBlue's intention to purchase SM-A's and SM-B's. The Price
of each WBSM delivered hereunder shall be as set forth in
Schedule 11. WildBlue may, elect to change the configuration by
adding Features or removing Features in accordance with the terms
of this Agreement.
16.3. *** CUSTOMER AND ***.
(a) *** CUSTOMER. If during the Term, Contractor sells SMs to
a Service Provider or End User ,***. The purchase price to
a Service Provider or End User shall be calculated to be
net of any volume discounts, rebates and other similar
adjustments.
(b) ***. For a period of *** years after the Effective Date,
Contractor shall *** to WildBlue *** for each SM purchased
by any Service Provider; provided, however, that ***
received and retained by Contractor hereunder (exclusive
of any NRE Payments made to a Major Component Vendor
pursuant to Schedule 7). This paragraph will survive
termination of this Agreement
16.4. TAXES. Unless otherwise agreed to by the Parties in an Order, the
Parties' respective responsibilities for taxes arising under or
in connection with this Agreement shall be as follows:
(a) Each Party shall be responsible for any personal property
taxes on property it owns or leases, for franchise and
privilege taxes on its business, and for taxes based on
its net income or gross receipts.
(b) Contractor shall be responsible for any sales, use,
excise, value-added, services, consumption, and other
taxes, customs and duties assessed or otherwise payable by
Contractor on any goods or services that are used or
consumed by Contractor in designing, manufacturing, and
providing the SMs where the tax is imposed on Contractor's
acquisition or use of such goods or services and the
amount of tax is measured by Contractor's costs in
acquiring such goods or services.
(c) WildBlue shall be responsible for any sales, use, excise,
value-added, services, consumption, or other tax, customs
and duties assessed on any particular SM or Service
purchased by WildBlue and delivered by Contractor to
WildBlue or designee hereunder. Such taxes are in addition
to the prices set forth herein and shall be identified
separately on invoices.
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(x) The Parties agree to cooperate with each other to enable
each to more accurately determine its own tax liability
and to minimize such liability to the extent legally
permissible. Contractor's invoices shall separately state
the amounts of any taxes Contractor is collecting from
WildBlue. Each Party shall provide and make available to
the other any resale certificates, information regarding
out-of-state or out-of-country sales or use of equipment,
materials or services, and other exemption certificates or
information reasonably requested by either Party.
(e) Contractor shall promptly notify WildBlue of, and
coordinate with WildBlue the response to and settlement
of, any claim for taxes asserted by applicable taxing
authorities for which WildBlue is responsible hereunder,
it being understood that with respect to any claim arising
out of a form or return signed by a Party to this
Agreement, such Party shall have the right to elect to
control the response to and settlement of the claim, but
the other Party shall have all rights to participate in
the responses and settlements that are appropriate to its
potential responsibilities or liabilities. If WildBlue
requests Contractor to challenge the imposition of any
tax, Contractor agrees to do so and WildBlue shall
reimburse Contractor for all reasonable legal fees and
expenses it incurs. WildBlue shall be entitled to any tax
refunds or rebates granted to the extent such refunds or
rebates are for taxes that were paid by WildBlue.
17. WILDBLUE PAYMENTS TO CONTRACTOR AND INVOICING
17.1. PAYMENTS. Provided that Contractor has completed the Milestones
set forth on Schedule 7 in accordance with the terms and
conditions of this Agreement, WildBlue shall pay Contractor
nonrecurring engineering payments in the aggregate of *** plus
any amount paid by Contractor to a Major Component Vendor for
non-recurring development (the "NRE PAYMENTS") in accordance with
the Schedule 7 and this Section 17.
17.2. INVOICING.
(a) Following Contractor's successful completion of each
Milestone in accordance with the terms hereof, Contractor
may invoice WildBlue for the applicable Milestone Payment.
Each invoice shall be accompanied by Contractor's written
certification that each Milestone to which the invoice
relates has been fully and successfully completed.
(b) Upon successful completion of a payment Milestone earlier
than the required date specified in Schedule 7, Contractor
may invoice immediately provided that Contractor has
provided WildBlue at least sixty (60) days notice of the
intent to deliver early.
(c) Upon shipment of SMs pursuant to an Order (including the
Initial Order), Contractor will invoice WildBlue for
amounts due pursuant to this Agreement for such SMs. Such
invoice shall include invoice date, Order number, SM part
numbers and descriptions, quantities, unit Prices and
total amount due.
(d) For deliverables or services provided by Contractor,
Contractor will invoice WildBlue upon delivery or at such
time as otherwise mutually agreed. For Services,
Contractor will invoice WildBlue upon reasonably
satisfactory completion of the performance of such
Services or at such times as mutually
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agreed at the hourly rates set forth in Schedule 10. All
such invoices shall include invoice date, Order number,
description, quantities, unit Prices and total amount due.
17.3. PAYMENT DUE.
(a) Invoices submitted to WildBlue in accordance with this
Section 17 shall be due and payable by WildBlue within
thirty (30) days of the date of such invoice.
(b) Invoices for payment of *** hereunder and any undisputed
amounts owed by Contractor to WildBlue shall be due and
payable by Contractor within thirty (30) days of the date
of such invoice.
(c) Any undisputed payment that is not made after the due date
hereunder will be subject to an interest charge at the
lesser of (i) one percent (1%) per month, or (ii) the
highest rate permitted by applicable law, plus reasonable
attorneys' fees and other reasonable collection expenses.
(d) Payments to Contractor shall be made in U.S. Dollars via
check or wire transfer to the following Contractor
account:
Union Bank of California
000 X Xxxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000-0000 XXX
9 digit Routing Transit Number: ***
Depositor Account Title: ViaSat General Account
Depositor Account Number: ***
(e) WildBlue may set-off against amounts owed to Contractor
hereunder any amounts owed by Contractor to WildBlue that
are not disputed in good faith.
17.4. DISPUTED CHARGES. Either Party may withhold payment of particular
charges that such Party disputes in good faith. Each Party shall
notify the other Party if it disputes any charges hereunder
within ten (10) days after receipt of the invoice for such
disputed charges, and will set forth its reasons for such dispute
in reasonable detail. All disputes under this Section shall be
resolved in accordance with Section 22 below.
17.5. ENCUMBRANCES. Contractor shall not perfect any Lien upon any SM
or Software provided pursuant to this Agreement except as
otherwise expressly permitted by this Agreement.
18. INFORMATION; CONFIDENTIALITY
18.1. CONTRACTOR INFORMATION.
(a) Contractor Background Information and Contractor
Foreground Information shall constitute Confidential
Information of Contractor. WildBlue shall not possess or
assert any Lien against or to Contractor Background
Information or Contractor Foreground Information. No
Contractor Background Information or Contractor Foreground
Information, or any part thereof, shall be sold, assigned,
leased, or otherwise disposed of to third parties by
WildBlue or commercially exploited by or on behalf of
WildBlue, its employees, vendors, contractors or agents,
except as expressly provided herein.
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Xxxxx 0, 0000
(x) Except as expressly provided herein, Contractor
Confidential Information shall not be disclosed to any
party without the prior written consent of Contractor, nor
utilized by WildBlue for any purpose other than that of
performing its obligations or exercising it rights
hereunder.
18.2. WILDBLUE INFORMATION.
(a) WildBlue Background Information and WildBlue Foreground
Information shall constitute Confidential Information of
WildBlue. Contractor shall not possess or assert any Lien
against or to any WildBlue Background Information or
WildBlue Foreground Information. No WildBlue Background
Information or WildBlue Foreground Information, or any
part thereof, shall be sold, assigned, leased, or
otherwise disposed of to third parties by Contractor or
commercially exploited by or on behalf of Contractor, its
employees, vendors, contractors or agents, except as
expressly provided herein.
(b) Upon WildBlue's request, but subject to any continuing
need of Contractor to fulfill its obligations hereunder,
the termination or expiration of this Agreement (in whole
or in part) for any reason (including termination for
cause) or, with respect to any particular data, on such
earlier date that the same shall be no longer required by
Contractor in order to render the Services hereunder, such
WildBlue Confidential Information (including copies
thereof) shall be promptly returned to WildBlue by
Contractor in a form reasonably requested by WildBlue or,
if WildBlue so elects, shall be destroyed. Contractor
shall certify to WildBlue in writing that Contractor has
fully complied with the letter and the spirit of this
Subsection.
(c) Except as expressly provided herein, WildBlue Confidential
Information shall not be disclosed to any party without
the prior written consent of WildBlue, nor utilized by
Contractor for any purpose other than that of performing
its obligations or exercising its rights hereunder.
18.3. CONFIDENTIALITY.
(a) CONFIDENTIAL INFORMATION. Contractor and WildBlue each
acknowledge that they may be furnished with, receive, or
otherwise have access to information of or concerning the
other Party which such Party considers to be confidential,
proprietary, a trade secret or otherwise restricted. As
used in this Agreement and subject to Subsection (c)(i) of
this Section, "CONFIDENTIAL INFORMATION" means all
information, in any form, furnished or made available
directly or indirectly by one Party to the other,
including such information developed by either Party
hereunder and used in or with the SMs, which is marked
confidential, restricted, proprietary, or with a similar
designation, including all WildBlue Background
Information, WildBlue Foreground Information, Contractor
Background Information and Contractor Foreground
Information. Confidential Information also shall include,
whether or not designated "Confidential Information": (i)
all specifications, designs, documents, correspondence,
software, documentation, Source Code, data and other
materials and work products produced by either Contractor
or its subcontractors in the course of performance of this
Agreement; (ii) all information concerning the operations,
affairs and businesses of a Party, the financial affairs
of a Party, and the relations of a Party with its
customers, employees and Authorized
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Resellers (including customer lists, customer information,
account information and consumer markets); (iii) software
provided to a Party by or through the other Party; (iv)
other information, systems designs and architecture, and
data stored on magnetic media or otherwise or communicated
orally by either Party, which a reasonable person would
assume to be confidential, and obtained, received,
transmitted, processed, stored, archived, or maintained by
the other Party under this Agreement; and (v) WildBlue
equipment forecasts and orders.
(b) OBLIGATIONS.
(i) Each Party's Confidential Information shall remain
the property of that Party or its licensors except
as expressly provided otherwise by the other
provisions of this Agreement. WildBlue and
Contractor shall each use at least the same degree
of care, but in any event no less than a reasonable
degree of care, to prevent disclosing to third
parties the Confidential Information of the other
as it employs to avoid unauthorized disclosure,
publication or dissemination of its own information
of a similar nature; provided that the Parties may
disclose such Confidential Information to entities
performing services required hereunder including
subcontractors, suppliers or agents where (i) use
of such entity is permitted to be used under this
Agreement, (ii) such disclosure is necessary or
otherwise naturally occurs in that entity's scope
of responsibility, and (iii) the entity agrees in
writing to assume the obligations described in this
Section 18.3.
(ii) As requested by a Party during the Term and upon
expiration or any termination of this Agreement (in
whole or in part) and completion of the other
Party's obligations under this Agreement subject to
any continuing need to fulfill its obligations
hereunder, the requested Party shall return or
destroy, as the requesting Party may direct in
writing, all material in any medium that contains,
refers to, or relates to the requesting Party's
Confidential Information, and retain no copies. The
requesting Party shall certify to the other Party
in writing that it has compiled with the spirit and
the letter of this Subsection.
(iii) Each Party shall take reasonable steps to ensure
that its employees comply with this Section 18.3.
(c) EXCLUSIONS.
(i) "Confidential Information" shall exclude any
particular information which Contractor or WildBlue
can demonstrate (1) was, at the time of disclosure
to it, in the public domain; (2) after disclosure
to it, is published or otherwise becomes part of
the public domain through no fault of the receiving
Party; (3) was in the possession of the receiving
Party at the time of disclosure to it; (4) was
received after disclosure to it from a third party
who had a lawful right to disclose such information
to it without any obligation to restrict its
further use or disclosure; or (5) was independently
developed by the receiving Party without reference
to Confidential Information of the furnishing
Party. In addition, a Party shall not be considered
to have breached its obligations by disclosing
Confidential Information of the other Party as
required to satisfy any legal requirement
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or regulations of a competent government body
provided that, immediately upon receiving any such
request and to the extent that it may legally do
so, such Party advises the other Party promptly and
prior to making such disclosure in order that the
other Party may interpose an objection to such
disclosure, take action to assure confidential
handling of the Confidential Information, or take
such other action as it deems appropriate to
protect the Confidential Information.
(ii) Either Party may disclose the terms and conditions
of this Agreement to third parties that (1) have
expressed a bona fide interest in consummating a
significant financing, merger or acquisition
transaction between such third parties and the
disclosing Party, (2) have a reasonable ability
(financial and otherwise) to consummate such
transaction, and (3) have executed a nondisclosure
agreement that includes within its scope the terms
and conditions of this Agreement. Each Party shall
endeavor to delay the disclosure of the terms and
conditions of this Agreement until the status of
discussions concerning such transaction warrants
such disclosure. In addition, either Party may
disclose the terms and conditions of this Agreement
to its subcontractors, suppliers and agents under
confidentiality obligations having a need to know.
(d) LOSS OF CONFIDENTIAL INFORMATION. In the event of any
disclosure or loss of, or inability to account for, any
Confidential Information of the furnishing Party, the
receiving Party shall promptly, at its own expense: (i)
notify the furnishing Party in writing; (ii) take such
actions as may be necessary or reasonably requested by the
furnishing Party to minimize the violation; and (iii)
cooperate in all reasonable respects with the furnishing
Party to minimize the violation and any damage resulting
therefrom.
(e) NO IMPLIED RIGHTS. Nothing contained in this Section shall
be construed as obligating a Party to disclose its
Confidential Information to the other Party, or as
granting to or conferring on a Party, whether express or
implied, any rights or license to the Confidential
Information of the other Party.
19. WARRANTIES AND TECHNICAL SUPPORT
19.1. PASS-THROUGH WARRANTIES.
(a) Contractor will from time to time provide certain SM
components, Software and other items for which Contractor
is entitled to warranties from the manufacturers, lessors
or licensors of such items. Contractor shall pass through
to WildBlue the benefits of such warranties to the extent
that Contractor is able to do so pursuant to any
agreements between Contractor and such manufacturers,
lessors or licensors. Contractor will use commercially
reasonable best efforts to obtain warranties from such
manufacturers, lessors and/or licensors to provide to
WildBlue hereunder.
(b) WildBlue shall make no promises or representations to its
customers on the behalf of Contractor and its employees
and suppliers.
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19.2. SM WARRANTY.
(a) SM PERFORMANCE WARRANTIES. All WBSMs (including WBSM
Software) are hereby warranted by Contractor in accordance
with Schedule 13.
(b) NONCONFORMING SM. Contractor's obligations and WildBlue's
remedies for WBSMs which fail to meet the warranties set
forth in the preceding paragraph are as set out in
Schedule 13.
(c) WARRANTY NOT APPLICABLE. This warranty shall not apply to
any WBSM or parts thereof, that (a) has had the Serial
Number, Model Number, or other identification markings
altered, removed or rendered illegible, (b) has been
damaged by or subject to improper installation or
operation, misuse, neglect or use with improper equipment;
or (c) has been repaired or altered by other than
Contractor personnel or has been subject to the opening of
any sealed cabinet boxes without Contractor's prior
written consent. Additionally, this warranty shall not
apply to any parts of the WBSM that have been provided by
WildBlue or WildBlue supplier.
(d) COMPONENTS. Contractor represents, warrants and covenants
that all SM components (excluding components provided by
WildBlue or its suppliers) provided under this Agreement
shall be new, not refurbished, reconditioned or
re-manufactured. Notwithstanding the foregoing, Contractor
may use refurbished, reconditioned or re-manufactured
parts for warranty repair or replacement actions.
(e) SM SOFTWARE. During the Warranty Period (as defined in
Schedule 13), or any Extended Warranty Period (as defined
in Schedule 14) purchased by WildBlue, for each SM under
warranty Contractor shall provide to WildBlue, at no cost,
all Software Patches, Point Releases, Major Releases and
other Software error corrections, bug fixes, patches and
mandatory updates (collectively, "SOFTWARE CORRECTIONS")
for distribution to WildBlue, Authorized Resellers and
Users in accordance with Schedule 13. After the Warranty
Period, Contractor shall provide Software Corrections and
Major Releases in accordance with Schedule 14 at the
prices determined by Contractor from time to time. In
addition, Contractor shall make available to WildBlue
during the Term of this Agreement all updates, upgrades,
enhancements and releases (collectively, "SOFTWARE
UPDATES") related to SMs that Contractor makes available
to other SM customers, for prices that are no less
favorable than the prices under which the Software Updates
are made available to such other SM customers. Software
Corrections and Software Updates shall be considered to
form part of the SM Software for purposes of this
Agreement. Software Corrections and Software Updates shall
be tested prior to release.
(f) POST-WARRANTY SM SUPPORT. Contractor shall offer to
WildBlue and its Authorized Resellers, Affiliates and
Users post-warranty SM maintenance and support in
accordance with the terms of Schedule 14 and Schedule 16.
19.3. MONTHLY REPORTS. Contractor shall submit to WildBlue monthly
reports, which summarize the number and types of problem and
reasons for return (if known) warranty returns or WBSM field
failures. These monthly reports shall be submitted within thirty
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(30) business days of the end of each month commencing after the
Month 1 Production shipment.
19.4. EPIDEMIC FAILURES. If Epidemic Failures (as defined in Schedule
13) occur the Parties shall have the rights and obligations set
forth in Schedule 13.
19.5. OWNERSHIP OR USE.
(a) Contractor represents, warrants and covenants that, upon
delivery to WildBlue, all right, title and interest in SM
Hardware will pass to WildBlue free of all Liens,
imperfections in title, claims, charges, restrictions, or
other encumbrances.
(b) Contractor represents and warrants that it has the right
to license to WildBlue the SM Software, the Contractor
Background Information and Contractor Foreground
Information as provided in this Agreement (collectively,
"CONTRACTOR IP").
19.6. DISCLAIMER. THE EXPRESS WARRANTIES IN THIS SECTION 19 AND
SCHEDULE 13 AND 14 ARE WILDBLUE'S SOLE REMEDY FOR SMs FOUND TO BE
DEFECTIVE AFTER ACCEPTANCE AND ARE IN LIEU OF ALL OTHER
WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE
USE OF THE SMs. EXCEPT FOR THE EXPRESS WARRANTIES IN THIS SECTION
19 AND SCHEDULE 13 AND 14, THE SMs ARE PROVIDED "AS IS" AND
CONTRACTOR MAKES NO OTHER REPRESENTATION OR WARRANTY, EXPRESS OR
IMPLIED OF ANY KIND WITH RESPECT TO THE SMs, WHETHER WRITTEN OR
ORAL, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR BASED ON
ANY SAMPLE OR MODEL.
19.7. TECHNICAL SUPPORT. Contractor shall provide technical support to
WildBlue to the extent set forth in Schedule 13 and this
Agreement.
20. INDEMNITIES
20.1. INDEMNITY BY CONTRACTOR. Contractor shall indemnify, defend and
hold harmless WildBlue and its affiliates and their respective
officers, directors, employees, agents, successors, and assigns
from any and all Losses from claims arising from, in connection
with, or based on allegations of any of the following:
(a) third party claims arising out of Contractor's performance
hereunder, including breach of this Agreement;
(b) third party claims arising out of Contractor's failure to
observe or perform any duties or obligations to third
parties, including its subcontractors;
(c) third party claims arising out of the manufacture,
distribution, or intended use of SMs, due to Contractor's
negligence or willful misconduct;
(d) third party claims (including claims by any employee,
agent, customer, business invitee or business visitor or
other person) for death or personal injury caused by the
SMs or the tortious conduct of Contractor or its
Affiliates;
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(e) claims for damage to real or tangible property caused by
the SMs or the tortious conduct of Contractor or its
Affiliates;
(f) Contractor's breach of its obligations with respect to
WildBlue Confidential Information;
(g) governmental claims arising out of Contractor's failure to
comply with applicable law that it is required to comply
with under this Agreement or to obtain those permits it is
required to obtain under the Contract;
(h) any third party claim, demand, charge, action, cause of
action, or other proceeding asserted against WildBlue but
resulting from an act or omission of Contractor in its
capacity as an employer of a person.
20.2. INDEMNITY BY WILDBLUE. WildBlue shall indemnify, defend and hold
harmless Contractor and its Affiliates and their respective
officers, directors, employees, agents, successors, and assigns,
from any and all Losses from claims arising from, in connection
with, or based on allegations of any of the following:
(a) third party claims arising out of WildBlue's failure to
observe or perform any duties or obligations to third
parties;
(b) third party claims arising out of WildBlue's breach of its
obligations with respect to Contractor Confidential
Information;
(c) third party claims (including claims by any employee,
agent, customer, business invitee or business visitor or
other person) for death or personal injury caused by the
tortious conduct of WildBlue or its Affiliates;
(d) governmental claims arising out of WildBlue's failure to
comply with applicable law that it is required to comply
with under this Agreement or to obtain those government
approvals it is required to obtain under this Agreement;
(e) claims for damage, loss or destruction of any real or
tangible personal property caused by tortious conduct of
WildBlue or its Affiliates;
(f) any third party claim, demand, charge, action, cause of
action, or other proceeding asserted against Contractor
but resulting from an act or omission of the WildBlue in
its capacity as an employer of a person; and
20.3. INTELLECTUAL PROPERTY INFRINGEMENT. Contractor shall indemnify,
defend and hold harmless WildBlue from and against any claim,
suit or proceeding ("SUIT") brought against WildBlue based on a
claim that the SMs furnished hereunder when used in accordance
with Contractor specifications infringes any Intellectual
Property Right (including misappropriation of trade secrets) of
any third party. If the use or distribution of an SM is in such
suit held to constitute infringement and the use thereof is
enjoined or in the event of institution of a Suit or notification
of the reasonable possibility thereof, Contractor shall at its
own expense, at its option, either (a) procure for WildBlue the
right to continue exercising the rights of WildBlue under this
Agreement, (b) replace or modify the SMs, or such Xxxx, so that
it becomes non-infringing and remains functionally equivalent,
or, in the event that neither (a) nor (b) can be achieved, using
reasonable commercial best
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efforts, (c) refund to WildBlue any payments made by WildBlue to
Contractor (to the extent that such payments have not been
recouped through credits against accrued royalties), and
terminate this Agreement by written notice to WildBlue, subject
to Article 23 (Termination). The foregoing states the entire
liability of Contractor and the exclusive remedy of WildBlue with
respect to any alleged patent, copyright or other infringement by
SMs provided hereunder.
The foregoing shall not apply and Contractor shall have no
liability for infringement based on: (a) any change or
modification made by WildBlue or others without Contractor's
consent after delivery of the SMs; (b) any use of any SM in
combination with other hardware or software products or in any
manner for which the SMs were not designed, to the extent such
infringement was based on such use; (c) compliance by Contractor
with WildBlue's designs, specifications or instructions; (d) use
of any release or version of any SM Software other than the most
current release made available by Contractor, if infringement
could have been avoided by use of such release, (e) any use of
WildBlue Background Information, WildBlue Foreground Information
or Third Party Information provided by WildBlue hereunder, or (f)
use of WildBlue's trademarks or third party trademarks designated
by WildBlue under the terms hereof. WildBlue shall indemnify
Contractor for any Suit brought against Contractor to the extent
attributable to infringement or misappropriation excluded from
Contractor's indemnity obligations under the foregoing clauses
(a)-(f).
20.4. INDEMNIFICATION PROCEDURES. With respect to third party claims,
the following procedures shall apply:
(a) NOTICE. Promptly after receipt by any entity entitled to
indemnification under Sections 20.1 through 20.3 of notice
of the commencement or threatened commencement of any
civil, criminal, administrative, or investigative action
or proceeding involving a claim in respect of which the
indemnitee will seek indemnification pursuant to any such
Section, the indemnitee shall notify the indemnitor of
such claim in writing. No failure to so notify an
indemnitor shall relieve it of its obligations under this
Agreement except to the extent that it can demonstrate
actual damages attributable to such failure. Within
fifteen (15) days following receipt of written notice from
the indemnitee relating to any claim, but no later than
ten (10) days before the date on which any response to a
complaint or summons is due, the indemnitor shall notify
the indemnitee in writing if the indemnitor elects to
assume control of the defense and settlement of that claim
(a "NOTICE OF ELECTION").
(b) PROCEDURE FOLLOWING NOTICE OF ELECTION. If the indemnitor
delivers a Notice of Election relating to any claim within
the required notice period, the indemnitor shall be
entitled to have sole control over the defense and
settlement of such claim; provided that (i) the indemnitee
shall be entitled to participate in the defense of such
claim and to employ counsel at its own expense to assist
in the handling of such claim, and (ii) the indemnitor
shall obtain the prior written approval of the indemnitee
before entering into any settlement of such claim or
ceasing to defend against such claim. After the indemnitor
has delivered a Notice of Election relating to any claim
in accordance with the preceding paragraph, the indemnitor
shall not be liable to the indemnitee for any legal
expenses incurred by the indemnitee in connection with the
defense of that claim. In addition, the indemnitor shall
not be required to indemnify the indemnitee for any amount
paid or payable by the indemnitee in the settlement of any
claim for which the
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indemnitor has delivered a timely Notice of Election if
such amount was agreed to without the written consent of
the indemnitor.
(c) PROCEDURE WHERE NO NOTICE OF ELECTION IS DELIVERED. If the
indemnitor does not deliver a Notice of Election relating
to any claim within the required notice period, the
indemnitee shall have the right to defend and/or settle
the claim in such manner as it may deem appropriate, at
the cost and expense of the indemnitor. The indemnitor
shall promptly reimburse the indemnitee for all such
Losses.
20.5. SUBROGATION. If an indemnitor shall be obligated to indemnify an
indemnitee pursuant to Sections 20.1 through 20.3, the indemnitor
shall, upon payment of such indemnity in full, be subrogated to
all rights of the indemnitee with respect to the claims to which
such indemnification relates.
21. LIABILITY
Each Party shall have a duty to use commercially reasonable efforts to
mitigate damages for which the other Party is responsible.
22. DISPUTE RESOLUTION
Any dispute between the Parties arising out of or relating to this
Agreement, including with respect to the interpretation of any provision
of this Agreement and with respect to the performance by Contractor or
WildBlue, shall be resolved as provided in this Article 22. Each Party
agrees that during any dispute resolution process or procedure it will
use reasonable commercial efforts to continue to perform under the
agreement until such dispute is resolved in accordance with this Article
22.
22.1. INFORMAL DISPUTE RESOLUTION. Subject to Section 22.3, prior to
the initiation of formal dispute resolution procedures, the
Parties shall first attempt to resolve their dispute informally
pursuant to this Section 22.1. Upon the written request of a
Party, each Party shall appoint a designated representative who
does not devote substantially all of his or her time to
performance under this Agreement, whose task it will be to meet
for the purpose of endeavoring to resolve such dispute.
(a) The designated representatives shall meet as often as the
Parties reasonably deem necessary in order to gather and
furnish to the other all information with respect to the
matter in issue which the Parties believe to be
appropriate and germane in connection with its resolution.
The representatives shall discuss the problem and attempt
to resolve the dispute without the necessity of any formal
proceeding.
(b) During the course of discussion, all reasonable requests
made by one Party to another for non-privileged
information, reasonably related to this Agreement, shall
be honored in order that each of the Parties may be fully
advised of the other's position.
(c) The specific format for the discussions shall be left to
the discretion of the designated representatives.
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(x) If the designated representatives fail to resolve the
dispute, the Parties agree to escalate the dispute
resolution process to a higher executive level, and then
to the CEO level. Each level of informal dispute
resolution will be allowed no more than fifteen (15) days,
unless otherwise mutually agreed by the Parties.
22.2. ARBITRATION.
(a) Subject to Subsection 22.2(b), and 22.4, if the Parties
fail to resolve a dispute pursuant to Section 22.1 above,
either Party may then refer such dispute to be settled by
submission to the CPR Institute for Dispute Resolution
("CPR") for binding arbitration in Denver, Colorado if
Contractor is demanding such arbitration and San Diego,
California if WildBlue is demanding such arbitration under
the then current CPR "Non-Administered Arbitration Rules"
or any successor CPR rules, and the procedures specified
under this Section 22.2. Each Party consents to the
enforcement of any such arbitration award or judgement in
its home jurisdiction. Any arbitration shall be conducted
and enforced in accordance with the following principles:
(i) STANDARD ARBITRATION. Selection of Arbitrators.
Arbitration shall be conducted by three (3)
arbitrators with each Party to this Agreement
selecting one arbitrator each and the two selected
arbitrators then selecting the third arbitrator.
Each arbitrator shall be independent of the Parties
and shall have at least ten (10) years of
experience in commercial transactions, including
transactions involving communications technology
companies.
(ii) LIMITED DISCOVERY. Prior to the commencement of the
arbitration, each Party shall be entitled to take
limited discovery, including the rights to request
a reasonable number of documents, to serve no more
than twenty (20) interrogatories and to take no
more than three (3) depositions. Each Party may
seek the right to serve additional interrogatories
and to take additional depositions upon a showing
of good faith to the arbitrators, who can grant or
deny any such request, in whole or part, in their
sole discretion. This limited discovery shall be
conducted in accordance with the Federal Rules of
Civil Procedure, which shall be interpreted and
enforced by the arbitrators. Any disputes regarding
whether a Party has requested a "reasonable" number
of documents shall be determined by the arbitrators
in their sole discretion.
(iii) HEARING AND DECISION. The arbitrators shall, as
soon as practicable and upon fifteen (15) days
written notice to each Party, conduct an
arbitration hearing and proceeding on the merits of
the dispute giving effect to this Agreement as
interpreted under New York law and thereafter shall
issue a preliminary written decision citing the
basis for the decision, including findings of fact
and conclusions of law. The Parties shall have two
(2) business days to file a written response to
such preliminary decision, and thereafter the
arbitrators shall as soon as practicable issue a
final and binding decision. The decision of the
arbitrators shall be based on a majority vote. As
part of such decision, the arbitrators shall also
be required to determine if any equitable
adjustment to the applicable schedules for
performance herein is appropriate and the extent of
such adjustment.
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(x) ACCEPTANCE TEST PLAN ARBITRATION.
(i) Any dispute, claim or controversy between the
Parties arising out of or relating to the creation
of Acceptance Test Plans in accordance with Section
6.2 ("ATP DISPUTE"), upon written request by a
Party, will be resolved under this Section 22.2(b)
and subject to final, binding arbitration in
accordance with this Section 22.2(b). ATP Disputes
do not include any dispute, claim or controversy
between the parties regarding whether or not a
Deliverable actually meets the Acceptance Criteria.
The ATP Dispute shall be submitted before CPR
within five (5) days after the requesting notice in
accordance with the then-existing CPR arbitration
rules as modified by this Section.
(ii) The arbitrator under this Section 22.2(b) shall not
limit, expand or modify the terms of this Agreement
nor award damages in excess of damage limitations
contained in this Agreement, and each party waives
any claim to such excess damages.
(iii) Within ten (10) days after the fact-find hearing
held in accordance with said CPR arbitration rules,
each Party to the ATP Dispute shall submit to each
other and the arbitrator its respective proposal
for resolution of the ATP Dispute, and the
arbitration shall be limited to the sole question
of determining which of the two written proposals
is to be accepted. The arbitrator shall have no
authority to compromise between the proposals,
provided however that prior to issuing a decision
the arbitrator will attempt to negotiate a
resolution and may suggest one or more compromise
resolutions. Such negotiation process shall
commence within ten (10) days of submission of the
proposed resolutions by the parties. If resolution
of the ATP Dispute is not reached pursuant to such
negotiations within ten (10) days of commencement
thereof, the arbitrator shall, within five (5)
business days, select to be the single binding
decision, one of the two submitted proposals,
excising from such proposal any term that limits,
expands or modifies the terms of this Agreement or
awards damages in excess of damage limitations
contained in this Agreement. As part of such
decision, the arbitrators shall also be required to
determine if any equitable adjustment to the
applicable schedules for performance herein is
appropriate and the extent of such adjustment.
(iv) If the parties disagree on the choice for an
arbitrator, the parties shall jointly request CPR
to furnish a list of five available arbitrators.
After receipt of such list and an opportunity to
consider the names, each party may designate in
writing to CPR not more than two names to be
eliminated from the selection process. If more than
one name remains after such eliminations are made,
the selection of the arbitrator shall be made by
lot from the remaining names. The arbitration
proceeding shall be conducted in as expedited a
manner as is then permitted by the CPR commercial
arbitration rules (formal or informal).
(c) COSTS AND EXPENSES. The arbitrators may award to the
prevailing Party all reasonable fees, costs and expenses
of the arbitration, including, without limitation, such
reasonable fees and expenses of attorneys and experts.
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(x) CONSOLIDATION AND JOINDER. Any arbitration arising out of
or relating to this Agreement or breach thereof may
include by consolidation, joinder or other manner any
other person or persons which or whom a Party to the
arbitration reasonably believes to be substantially
involved in a common question of fact or law.
(e) ENFORCEMENT. The agreement to arbitrate shall be
specifically enforceable under prevailing arbitration law.
Any award rendered by the arbitrators shall be final,
binding and enforceable by any Party to the arbitration,
and judgment may be rendered upon it in accordance with
applicable law in a court of competent jurisdiction.
(f) UNITED STATES ARBITRATION ACT. The Parties acknowledge
that this Agreement evidences a transaction involving
interstate commerce. The United States Arbitration Act
shall govern the enforcement of any arbitration awards
entered pursuant to this Section 22.2.
22.3. INDEPENDENT EXPERT DISPUTE RESOLUTION. Any dispute, claim or
controversy between the Parties arising out of or relating to
whether a Deliverable that is subject to Acceptance Testing, has
met the applicable Acceptance Criteria in accordance with Section
6.2(c), will be resolved under this Section 22.3. Upon the
written request of a Party, the Parties shall appoint a expert to
resolve such disputes. If the Parties disagree on the choice for
an expert, the Parties shall jointly request CPR to furnish a
list of five available experts. After receipt of such list and an
opportunity to consider the names, each party may designate in
writing not more than two names to be eliminated from the
selection process. If more than one name remains after such
eliminations are made, the selection of the arbitrator shall be
made by lot from the remaining names. The role of the expert
shall be limited to the sole question of whether the applicable
Deliverable has met the agreed upon Acceptance Test Plan. As part
of such decision, the arbitrators shall also be required to
determine if any equitable adjustment to the applicable schedules
for performance herein is appropriate and the extent of such
adjustment. The expert under this Section 22.3 shall not limit,
expand or modify the terms of this Agreement or any ATP. The
decision made by the expert shall be final, binding and
enforceable by a Party.
22.4. INJUNCTIVE RELIEF. Notwithstanding Subsections 22.1, 22.2 or
22.3, either Party may obtain preliminary or temporary injunctive
relief, including specific performance, or relief in and of
arbitration at any time from a court of competent jurisdiction
where immediate irreparable harm to that Party is threatened by
the other Party's acts or omissions; provided, however, that
requests for permanent injunctive relief shall be arbitrated
pursuant to Section 22.2(a).
22.5. VENUE AND JURISDICTION. Each Party consents to the exclusive
jurisdiction and venue in a competent court in the County of
Denver, State of Colorado and the County of San Diego, State of
California, in the event of any dispute between the Parties
arising out of or relating to this Agreement that is permitted
under this Article 22 to be resolved by litigation or in the
enforcement of any award granted pursuant to this Article 22, and
each Party agrees that it shall file any suit against the other
Party only in such courts.
23. TERMINATION
23.1. TERMINATION FOR CAUSE.
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(a) If Contractor:
(i) commits a material breach of this Agreement and, in
the case of a breach capable of being cured, fails
to cure such breach within thirty (30) days (except
as expressly set forth herein) after written notice
from WildBlue to Contractor detailing the
particulars of such breach and requiring that it be
remedied; or
(ii) ceases to carry on its business; a receiver or
similar officer is appointed for Contractor and is
not discharged within sixty (60) days; admits in
writing its inability to pay debts as they mature,
is adjudicated bankrupt, or makes an assignment for
the benefit or its creditors or another arrangement
of similar import; or proceedings under bankruptcy
or insolvency laws are commenced by or against
Contractor and are not dismissed within ninety (90)
days;
then WildBlue may, by giving written notice to Contractor,
terminate this Agreement, in whole or in part, as of a date
specified in the notice of termination ("TERMINATION DATE"). If
WildBlue chooses to terminate this Agreement in part, the charges
payable under this Agreement will be appropriately adjusted to
reflect those services that are terminated. Any of the foregoing
reasons for which WildBlue may terminate this Agreement shall be
referred to as "CAUSE." Except as expressly limited by this
Agreement, if WildBlue terminates this Agreement for Cause,
WildBlue shall have all remedies available to it in law and at
equity.
(b) If WildBlue:
(i) commits a material breach of this Agreement and, in
the case of a breach capable of being cured, fails
to cure such breach within thirty (30) days (except
as expressly set forth herein) after written notice
from Contractor to WildBlue detailing the
particulars of such breach and requiring that it be
remedied; or
(ii) fails to pay Contractor undisputed charges when due
under the Agreement and fails to cure such breach
within thirty (30) days of written notice from
Contractor of such breach; or
(iii) ceases to carry on its business; a receiver or
similar officer is appointed for WildBlue and is
not discharged within thirty (30) days; admits in
writing its inability to pay debts as they mature,
is adjudicated bankrupt, or makes an assignment for
the benefit or its creditors or another arrangement
of similar import; or proceedings under bankruptcy
or insolvency laws are commenced by or against
WildBlue and are not dismissed within sixty (60)
days;
Contractor may, by giving written notice to WildBlue,
terminate this Agreement as of a Termination Date and any
such reason for termination shall be referred to as
"Cause". Except as expressly limited by this Agreement, if
Contractor terminates this Agreement for Cause, Contractor
shall have all remedies available to it in law and at
equity.
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23.2. TERMINATION ***.
(a) WildBlue may terminate this Agreement, in whole or in
part, for *** by giving Contractor written notice of
termination; provided such notice of termination is sent
to Contractor on or before ***. Such notice shall
designate a Termination Date, which date shall be not less
than sixty (60) days after the date of such notice (but
not later than ***).
(b) If WildBlue elects to terminate this Agreement for *** in
accordance with this Section 23.2, as soon as practicable
following the Termination Date, Contractor shall provide
WildBlue with a complete statement of all of its costs
incurred, unpaid amounts due and owing for work performed
hereunder and other amounts that are due to Contractor
hereunder as of the Termination Date and a reasonable
profit to be specified by Contractor and agreed to by
WildBlue thereon (the "FINAL STATEMENT"). The Final
Statement and all previous milestone payments will not
exceed (i) $*** for termination within thirty (30) days of
the Effective Date, (ii) $*** for termination within sixty
(60) days of the Effective Date, (iii) $*** for
termination within ninety (90) days of the Effective Date,
or (iv) the total NRE Payment amount. WildBlue shall
review the Final Statement within thirty (30) days of
receipt thereof and, if reasonably satisfactory to
WildBlue, shall pay Contractor within thirty (30) days of
approval all or part of the Final Statement, all
undisputed amounts due thereunder. If WildBlue disputes
any amounts set forth in the Final Statement, the Parties
shall resolve such disputes as provided herein, and
following resolution of such disputes, WildBlue shall pay
Contractor all remaining undisputed amounts, if any,
within thirty (30) days after resolution of such disputes.
If a purported termination for Cause by WildBlue under
Section 23.1 is determined by a competent authority not to
be properly a termination for cause, then such termination
shall be deemed to be a termination for *** by WildBlue
under this Section 23.2.
23.3. EFFECT OF TERMINATION OR EXPIRATION; WIND DOWN.
After expiration or termination of the Agreement, Contractor
agrees to provide Post Warranty Support and Maintenance (in
accordance with Schedule 14) for *** after the date of the last
WBSM delivery and technical support services as identified in
Schedule 14 Section 1, for *** after the effective date of
expiration or termination of the Agreement. WildBlue will pay
Contractor for Post Warranty Support and Maintenance and
technical support services in accordance with the applicable
Schedules; provided that if the Agreement is terminated by
WildBlue for cause, then Contractor will provide such technical
support as reasonably requested to support WildBlue's transition
to another supplier at no cost for up to four (4) months after
the effective date of termination.
24. LIMITATION OF LIABILITY.
EXCEPT FOR (A) CONTRACTOR'S POTENTIAL LIABILITY FOR ***, (B) DAMAGES
RESULTING FROM EITHER PARTY'S BREACH OF SECTION 18 (CONFIDENTIALITY),
AND (C) A PARTY'S INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT
SHALL EITHER PARTY BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE,
SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOST
PROFITS, REVENUE, GOOD WILL OR LOSS OF USE OR DATA) ARISING OUT OF OR
RELATED TO: (I) THE SMS; (II) THE USE OF AN SM; (III) THE RESULTS OF ANY
USE
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OF AN SM; (IV) THE INTEGRATION OF SMS WITH EQUIPMENT NOT PROVIDED BY
CONTRACTOR; (V) OTHERWISE RELATING TO THE FUNCTIONING OF AN SM; OR (VI)
A PARTY'S PERFORMANCE (OR FAILURE TO PERFORM) ITS OBLIGATIONS UNDER THIS
AGREEMENT, EVEN IF SUCH PARTY HAD BEEN ADVISED, KNEW OR SHOULD HAVE
KNOWN OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS.
EXCEPT WITH RESPECT TO (A) WILDBLUE'S PAYMENT OBLIGATIONS PURSUANT TO
SECTION 17, (B) CONTRACTOR'S OBLIGATIONS WITH RESPECT TO THE PAYMENT OF
***, AND (C) FOR BREACHES OF SECTION 18, THE MAXIMUM AGGREGATE LIABILITY
OF CONTRACTOR OR WILDBLUE, THEIR RESPECTIVE OFFICERS, DIRECTORS,
SHAREHOLDERS, EMPLOYEES, SUBCONTRACTORS AND AGENTS, UNDER THIS AGREEMENT
FOR ALL LOSSES, DAMAGES, EXPENSES OR INJURIES, WHETHER UNDER CONTRACT,
TORT (INCLUDING WITHOUT LIMITATION, NEGLIGENCE AND STRICT LIABILITY), BY
STATUTE, OTHER LEGAL THEORY OR OTHERWISE, ARISING OUT OF THE
PERFORMANCE, NON-PERFORMANCE OR IMPROPER PERFORMANCE BY CONTRACTOR OR
WILDBLUE, AS THE CASE MAY BE, OF ITS OBLIGATIONS HEREUNDER, SHALL BE
LIMITED TO, IN ANY AND ALL EVENTS, THE GREATER OF (X) $3.0 MILLION, AND
(Y) THE AGGREGATE AMOUNT PAID BY WILDBLUE TO CONTRACTOR HEREUNDER IN THE
12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE
CLAIM.
25. GENERAL
25.1. BINDING NATURE AND ASSIGNMENT. This Agreement shall be binding on
the Parties hereto and their respective successors and permitted
assigns. Neither Party may, or shall have the power to, assign
this Agreement or delegate such Party's obligations hereunder
without the prior written consent of the other, except no consent
shall be required in connection with the merger, consolidation,
sale, or other transfer of all or substantially all the business
and/or assets of such Party.
25.2. ENTIRE AGREEMENT. This Agreement, including any Schedules
referred to herein and attached hereto, constitutes the entire
agreement between the Parties with respect to the subject matter
hereof and supersedes all prior agreements, whether written or
oral, with respect to the subject matter contained in this
Agreement. In particular, this Agreement supersedes the letter
agreement between the Parties dated October 11, 2000, as amended
("LETTER AGREEMENT"), and all works of authorship, Intellectual
Property and other deliverables provided by either Party to the
other thereunder or developed by either Party thereunder shall be
treated in accordance with the terms of this Agreement,
notwithstanding any conflicting term or condition contained in
the Letter Agreement and the Letter Agreement shall be null and
void and of no further force or effect.
25.3. COMPLIANCE WITH LAWS AND STANDARDS.
(a) Each Party agrees that its execution, delivery, and
performance of this Agreement shall not constitute (i) a
violation of any judgment, order, or decree; (ii) a
material default under any material contract by which it
or any of its material assets are bound; or (iii) an event
that would, with notice or lapse of time, or both,
constitute such a default as described in (ii).
(b) Subject to Contractor's obligations under Sections 5.3(b)
hereof, each Party shall be responsible for, and shall
coordinate and oversee compliance with the laws and
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regulations in respect of items exported or imported
hereunder by it. The Parties acknowledge that certain
Intellectual Property Rights, including those related to
the SM Software and technical data to be provided
hereunder and certain transactions hereunder, may be
subject to export controls under the laws and regulations
of the United States and other countries. Neither Party
shall export or re-export any such items or any direct
product thereof or undertake any transaction in violation
of any such laws or regulations.
25.4. NOTICES. All notices, requests, demands, and determinations under
this Agreement (other than routine operational communications),
shall be in writing and shall be deemed duly given (i) when
received if delivered by hand, (ii) one (1) day after being given
for next day delivery to an express, overnight courier with a
reliable system for tracking delivery, or (iii) five (5) days
after the day of mailing, when mailed by United States mail,
registered or certified mail, return receipt requested, postage
prepaid, and addressed as follows:
If to WildBlue:. If to Contractor:.
WildBlue Communications, Inc. ViaSat, Inc.
0000 Xxxxx Xxxxxxxx Xx., Xxxxx 000 0000 Xx Xxxxxx Xxxx
Xxxxxx, XX 00000 Xxxxxxxx, XX 00000
Phone: 000-000-0000 Phone: 000-000-0000
Fax: 000-000-0000 Fax: 000-000-0000
Contact Persons: Contact Persons:
Xxxxx Xxxxxxxxxx, Vice President Xxxxxxx X. Cable, Vice President
Program Management Broadband Systems (xxxxxx@xxxxxx.xxx)
(xxxxxxxxxxx@XxxxXxxx.xxx)
Xxxxxxx X. Xxxxxxx, Vice President
Xxxxx X. Xxxxx, Vice President & Administration & General Counsel
General Counsel (xxxxxxxx@xxxxxx.xxx)
(xxxxxx@XxxxXxxx.xxx)
A Party may from time to time change its address or designee for
notification purposes by giving the other prior written notice of the
new address or designee and the date upon which it will become
effective.
25.5. COUNTERPARTS. This Agreement may be executed in several
counterparts, all of which taken together shall constitute one
single agreement between the Parties hereto.
25.6. RELATIONSHIP OF PARTIES. Contractor, in furnishing SMs hereunder,
is acting as an independent contractor, and Contractor has the
sole right and obligation to supervise, manage, direct, procure,
perform or cause to be performed, all work to be performed by
Contractor under this Agreement. Neither Party is an agent of the
other Party nor has a Party any authority to represent the other
Party as to any matters, except as expressly authorized in this
Agreement.
25.7. SEVERABILITY. If any provision of this Agreement conflicts with
the law under which this Agreement is to be construed or if any
such provision is held invalid by an arbitrator or a court with
jurisdiction over the Parties, such provision shall be deemed to
be restated to reflect as nearly as possible the original
intentions of the Parties in accordance with applicable law. The
remainder of this Agreement shall remain in full force and
effect.
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25.8. CONSENTS AND APPROVAL. Except where expressly provided as being
in the discretion of a Party, where agreement, approval,
acceptance, consent, or similar action by either Party is
required under this Agreement, such action shall not be
unreasonably delayed or withheld. An approval or consent given by
a Party under this Agreement shall not relieve the other Party
from responsibility for complying with the requirements of this
Agreement, nor shall it be construed as a waiver of any rights
under this Agreement, except as and to the extent otherwise
expressly provided in such approval or consent.
25.9. WAIVER OF DEFAULT; CUMULATIVE REMEDIES.
(a) No waiver or discharge hereof shall be valid unless in
writing and signed by an authorized representative of the
Party against which such amendment, waiver, or discharge
is sought to be enforced. A delay or omission by either
Party hereto to exercise any right or power under this
Agreement shall not be construed to be a waiver thereof. A
waiver by either of the Parties hereto of any of the
covenants to be performed by the other or any breach
thereof shall not be construed to be a waiver of any
succeeding breach thereof or of any other covenant herein
contained.
(b) Except as otherwise expressly provided herein and subject
to Section 19.2 above, all remedies provided for in this
Agreement shall be cumulative and in addition to and not
in lieu of any other remedies available to either Party at
law, in equity or otherwise.
25.10. SURVIVAL. All provisions with respect to payment obligations
hereunder and THE following provisions of this Agreement shall
survive any termination or expiration of this Agreement (in whole
or in part, as applicable) and continue in full force and effect,
but shall not extend the applicable statute of limitations:
SECTIONS 10, 12.2(a)(iii), 16.3(b), 16.4, 17, 18, 19, 20, 22, 24
AND 25.
25.11. PUBLIC DISCLOSURES. Except as may be required by applicable law
or in response to an order of a court of competent jurisdiction
or government agency, neither Party nor its subcontractors will
issue a press release or other public announcement concerning the
subject matter of this Agreement without the prior approval of
the other Party, which approval shall not be unreasonably
withheld or delayed. Such approval must be provided (or the
notice that such approval is withheld must be provided) as soon
as practicable but in not event later than five (5) days after
the request of the other Party. Except as authorized by Sections
7.3 or 18, all media releases, public announcements, and public
disclosures relating to this Agreement or the subject matter of
this Agreement, including promotional or marketing material, but
not including announcements intended solely for internal
distribution or disclosures to the extent required to meet legal
or regulatory requirements beyond the reasonable control of the
disclosing Party, shall be coordinated with and approved in
writing by both Parties prior to release.
25.12. THIRD PARTY BENEFICIARIES. Except as specifically provided in
this Agreement, this Agreement is entered into solely between,
and may be enforced only by, WildBlue and Contractor. This
Agreement shall not be deemed to create any rights in third
parties, including suppliers and customers of a Party, or to
create any obligations of a Party to any such third parties.
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25.13. AMENDMENT. This Agreement shall not be modified, amended or in
any way altered except by an instrument in writing signed by both
Parties.
25.14. INCORPORATION BY REFERENCE AND ORDER OF PRECEDENCE.
(a) The Schedules and Attachments attached hereto are hereby
incorporated by reference into this Agreement. Any
amendments to Schedules and Attachments, and any other
Schedules and Attachments that are agreed upon in writing
by the Parties subsequent to the Effective Date, shall
likewise be incorporated by reference into this Agreement.
(b) Any conflict among or between the documents making up this
Agreement will be resolved in accordance with the
following order of precedence (in descending order of
precedence):
(i) Change Orders;
(ii) This Agreement;
(iii) The Schedules (Any conflict among or between the
following Schedules will be resolved in accordance
with the following order of precedence (in
descending order of precedence): Schedule 1
(Satellite Modem Product Description), Schedule 6
(Statement of Work), Schedule 3 (SM/SMTS Functional
Specification), Schedule 4 (IDU/ODU Interface
Specification), Schedule 2 (WildBlue Radio
Frequency Interface Specification), Schedule 17
(Satellite Physical Layer MIB Objects)); and
(iv) Orders.
25.15. GOVERNING LAW. This Agreement and performance under it shall be
governed by and construed in accordance with the laws of state of
New York without regard to its choice of law principles. The
International Sale of Goods Convention shall not apply to this
Agreement.
25.16. COVENANT OF GOOD FAITH. Each Party agrees that, in its respective
dealings with the other Party under or in connection with this
Agreement, it shall act in good faith.
25.17. AUTHORIZATION. Each Party represents and warrants to the other
that:
(a) it has the requisite corporate power and authority to
enter into this Agreement and to carry out the
transactions contemplated by this Agreement;
(b) the execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated by
this Agreement have been duly authorized by the requisite
corporate action on the part of such Party; and
(c) is not subject to any contractual or other obligation that
would prevent it from entering into or performing this
Agreement.
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IN WITNESS WHEREOF, this Agreement has been executed and delivered by
the undersigned officers, thereunto, duly authorized, as the Effective Date.
WILDBLUE COMMUNICATIONS, INC. VIASAT, INC.
By: _________________________ By: __________________________________
_________________________ Xxxxxxx X. Cable
_________________________ Vice President, Broadband Systems.
Date: March 5, 2001 Date: March 5, 2001.
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SCHEDULE 1
SATELLITE MODEM PRODUCT DESCRIPTION
VERSION 9, DATED 2/23/2001
***
53
SCHEDULE 2
WILDBLUE RADIO FREQUENCY INTERFACE SPECIFICATION
DATED JANUARY 24, 2001
***
54
SCHEDULE 3
SM/SMTS FUNCTIONAL SPECIFICATION
REVISION W06 DATED JANUARY 23, 2001
***
55
SCHEDULE 4
IDU/ODU INTERFACE SPECIFICATION.
DRAFT 1, FEBRUARY 22, 2001
***
56
SCHEDULE 5
WILDBLUE RESPONSIBILITIES
***
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SCHEDULE 6
STATEMENT OF WORK
REVISION 7 DATED 2/22/2001
***
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SCHEDULE 7
MILESTONE AND PAYMENT SCHEDULE
***
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SCHEDULE 8
MINIMUM ORDER COMMITMENT AND MAXIMUM CAPACITY COMMITMENT
***
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SCHEDULE 9
ORDER AND DELIVERY FORECAST
The Initial SM Delivery is identified as a milestone in Schedule 7 and becomes a
firm Order upon the effective date of this contract.
Within a 5 day window of the first of each month, beginning *** and continuing
through the Term, WildBlue will provide an Order and Delivery Forecast to the
Contractor. The Order and Delivery Forecast will include a firm commitment for
the amount of the SMs required for delivery with specified configuration for the
one month period commencing on the first day of the third month following the
date of the Order and Delivery Forecast and a forecast for the subsequent five
months. Coincident with providing the Order and Delivery Forecast, WildBlue will
issue an Order for the units identified as the firm commitment. For example, an
Order Delivery Forecast on January 1st will include a firm commitment and an
accompanying Order for deliveries commencing on April 1st, with April deliveries
required to be delivered prior to the month end. A month as set forth herein is
a calendar month. After the initial Order and Delivery Forecast, subsequent
submittals shall be consistent with Schedule 8 and the constraints on month to
month forecast changes set forth below for a forecast submitted 3 months prior
to the first day of month 1.
Month Specified Qty Requirement(1)
----- ------------- --------------
1 A +/- 15% of Previous Month 2
2 B +/- 25% of Previous Month 3
3 C +/- 50% of Previous Month 4
4 D Consistent with Schedule 8
5 E Consistent with Schedule 8
6 F Consistent with Schedule 8
If at the time of an Order and Delivery Forecast, the SM-B version has not gone
through Acceptance Testing and been Accepted, WildBlue shall provide a forecast
for both SM-A and SM-B versions. For the purposes of Section 8.5, Contractor may
fulfill its commitment by delivering the ordered quantity of either version by
the required delivery date.
Upon receipt of the Order and Delivery Forecast, Contractor shall accept Month 1
as a firm Order subject to the terms and conditions of the Agreement. If
Contractor has information that parts shortages, supplier quality issues or
other factors would preclude Contractor's ability to meet the forecast
deliveries in any or all of months 2 through 6, Contractor has 12 days to submit
a revised forecast proposal to WildBlue. The revised forecast proposal shall
include Contractor's plan of action to minimize the impact on the forecast and
Contractor's proposed revision. Upon WildBlue's approval of the plan, which
shall not be unreasonably withheld, the revised forecast becomes the formal
Order and Delivery Forecast for that period.
--------
(11) WildBlue may request a delayed delivery schedule subject to the terms
agreed to in this Agreement. If WildBlue desires to purchase a greater number
during any month than is permitted in the forecast schedule, Contractor will
provide WildBlue with a written response indicating the additional units above
the previous forecast which can be committed to in the forecast.
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If WildBlue fails to deliver any forecast as required in this Agreement,
Contractor shall be entitled to proceed based on the last previous forecast
delivered.
FOR CLARIFICATION ONLY OF THE FORECAST PROCESS, THE FOLLOWING EXAMPLE IS
PROVIDED:
Previous Forecast - each month, non-cumulative
Order and Delivery Forecast Provided July 1st
------------------------------------------------------------------------------------------
Month 1 Month 2 Month 3 Month 4 Month 5 Month 6
(Oct.) (Nov.) (Dec.) (Jan.) (Feb.) (Mar.)
*** (Firm *** *** *** *** ***
Order) (Forecast (Forecast (Forecast
only) only) only)
------------------------------------------------------------------------------------------
Updated Forecast
Order and Delivery Forecast Provided August 1
------------------------------------------------------------------------------------------
Month 1 Month 2 Month 3 Month 4 Month 5 Month 6
(Nov.) (Dec.) (Jan.) (Feb.) (Mar.) (April)
*** *** *** *** *** ***
(within +/- (within +/- (within +/- (Forecast (Forecast (Forecast
15% of 25% of 50% of Only) Only) Only)
previous previous previous
forecast for forecast forecast for
Nov.) for Dec.) Jan. but
cannot exceed
(now Firm) *** per
Schedule 8)
------------------------------------------------------------------------------------------
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SCHEDULE 10
LABOR RATES
The rates and guidelines for expenses and travel set forth on this Schedule
apply only to those Services identified in the Agreement
***
1) The rates set forth above are in effect through the Calendar Year 2001.
Thereafter, Contractor will increase the labor rates at the end of each
Calendar Year, beginning 12/31/01 to reflect Contractor's then current
rates; provided that Contractor shall ensure that the rates charged to
WildBlue are no less favorable than the rates charged for similar services
and terms to any other customer or affiliated party of Contractor and that
such rates shall not increase by more than ten percent (10%) at the end of a
calendar year.
2) Contractor shall also be reimbursed for its reasonable, documented expenses
related to travel, per diem and other related expenses. Such reimbursement
shall be at Contractor's cost in accordance with its accounting system plus
an administrative fee of ten percent (10%). WildBlue will not be obligated
to reimburse Contractor for any expenses related to travel, per diem and
other related expenses in excess of two thousand dollars ($2,000), unless
WildBlue has provided its written consent, which consent shall not be
unreasonably withheld, conditioned or delayed, prior to such expenses being
incurred.
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SCHEDULE 11
SM PRICING SCHEDULE
Note: The ODU power supply is not priced. WildBlue reserves the right to remove
the SM power supply from the SMs and contract for it separately from Contractor
or a third party vendor.
***
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SCHEDULE 12
CONTRACTOR MARKS
1. ViaSat(R)
2. ViaSat Satellite Networks(TM) (Not for use on SM).
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SCHEDULE 13
TECHNICAL SUPPORT, WARRANTY SUPPORT AND MAINTENANCE
1. TECHNICAL SUPPORT FOR SM
During the Term, Contractor will make available to WildBlue at Contractors then
current commercial rates (except as noted below) technical support and services,
which shall include, but not be limited to, the provision of the following
services:
1.1 At no additional charge, telephone support to the WildBlue technical
team, 24 hours per day, seven days per week for SM related problems during
development, testing, and the first six months of SMs operating in the field and
communicating through a WildBlue satellite.
1.2 Contractor must provide at no additional charge, via a web-based
application, a list of the number of times WildBlue's personnel contacted
Contractor's technical support, with the date and time of contact, the problem,
and disposition of the call. Such application must be updated such that status
of the call must be provided via the web within 24 hours. As the problem is
solved/escalated status must be provided on the web based application within a
reasonable period of time.
1.3 Assistance in the diagnosis and resolution of hardware and software
problems.
1.4 Assistance in expediting priority replacement parts or systems
required on an emergency basis.
1.5 Assistance in the support of the initial implementation of SMs and
during installation of significant SM updates and/or changes.
1.6 Support in the preparation and analysis of failure and discrepancy
reports, as required.
1.7 Cooperation in providing reasonable guidelines and documentation to
ensure the necessary tracking and resolution of engineering, installation and
service complaints.
2. WARRANTY
2.1 Contractor warrants to WildBlue that upon delivery of the SM to
WildBlue all right, title and interest in SM Hardware will pass to WildBlue free
of all liens, imperfections in title, claims, charges, restrictions, or other
encumbrances. Contractor warrants to WildBlue that the SM Hardware (except for
operating systems SM Software furnished) shall be new, free from defects in
material and workmanship, and that the SM Hardware and SM Software shall perform
in material conformance with the Specifications, for a period of one (1) year
from installation date but in no event more than *** months from delivery. (the
"WARRANTY PERIOD"). All warranties shall survive inspection, acceptance and
payment. WildBlue shall reasonably cooperate with Contractor in implementing the
most cost efficient, cost effective warranty procedures.
2.2 During the Warranty Period, SMs that are subject to Defects shall be
returned to Contractor for repair or replacement at no charge or cost to
WildBlue, Authorized Reseller or User. Unless otherwise agreed by Contractor and
WildBlue, for SMs that are returned to Contractor for repair, Contractor shall,
at its option and cost, either complete repairs and return the repaired SM, or
ship replacement SM, within *** days of receipt of defective SM at Contractor's
designated repair location. All SMs returned for warranty repair hereunder shall
be returned in accordance with certain standard
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procedures, to be mutually agreed upon by the parties, which may be amended from
time to time. Alternatively, the option of having a replacement SM shipped to
either WildBlue, an Authorized Reseller or a User within *** business days of
receipt by Contractor of the returned SM for a *** processing fee payable by the
sending Party shall be provided. The sending Party shall bear the risk of loss
or damage of a returned SM while such is in WildBlue's, Authorized Resellers' or
Users' custody until such SM is delivered to Contractor's designated repair
facility. The sending party shall bear the cost of transportation charges for
shipment to Contractor (FOB destination; freight prepaid) of SMs under warranty
to be repaired or replaced. For return shipments from Contractor to WildBlue,
Authorized Reseller or User, Contractor shall bear the risk of loss or damage
during transit and shall prepay and bear the cost of transportation charges for
shipment of SM that has been repaired or replaced. If, during any one (1) year
period, more than *** of the SM's returned solely by WildBlue to Contractor for
repair or replacement under this warranty are diagnosed as not defective by
Contractor, WildBlue will pay for processing of Post Warranty Repair charges in
accordance with Schedule 16.
2.3 For units under warranty, Contractor will make available to the
WildBlue technical team, telephone helpdesk support from 8 am to 8 p.m. (EST),
at no additional charge, with a maximum one hour telephone response time.
Callers to the helpdesk must have an option to leave a message if the call is
not answered within two (2) minutes. If engineering technical support is needed
beyond the basic helpdesk services, Contractor will make such support available
within 24 hours at the rates defined in Schedule 10.
2.4 In addition to the standard warranty provisions stated herein,
instances of Epidemic Failure and Out of Box Failure shall be governed by the
following provisions:
2.4.1 "Epidemic Failure" means within any consecutive *** period a
failure of *** or more of the total number of SMs delivered to WildBlue in ***
during the Warranty Period or Extended Warranty Period, as applicable, to
conform to the Specifications. In the event of an Epidemic Failure, the
Contractor shall do as follows:
(i) Within ten (10) business days after receiving a written
notification of an Epidemic Failure by WildBlue, Contractor shall initiate
implementation of an action plan, in a form reasonably satisfactory to WildBlue,
to mitigate the future impact of the cause of this high failure rate on the
WildBlue service;
(ii) As required by the action plan, Contractor may undertake to
repair or replace affected WBSMs. In that case, Contractor shall bear the cost
of repair or replacement of the WBSMs which includes the shipping,
transportation and other costs of gathering and redistributing the affected
WBSMs in the manner defined by the action plan. Contractor's liability for costs
of shipping, transportation and other costs of gathering such WBSMs for repair
or replacement shall be limited to actual costs; and
(iii) Contractor shall take all commercially reasonable efforts
to ensure that all WBSMs shipped after the repair or replacement of the
defective WBSMs are free of similar faults.
2.4.2 In the event of an Out-of-Box Failure (as defined in the
Agreement) affecting *** or more of any shipping lot of WBSMs equal to or
greater than *** units, Contractor shall do as follows:
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(i) Contractor shall send replacement SM(s) to WildBlue (FOB
destination; prepaid) in the number identified by WildBlue within three days of
receiving shipment of the SMs from WildBlue (which shall be sent to Contractor
FOB destination; collect) subject to such Out-of-Box Failure;
(ii) Contractor shall also bear all costs of any repair or
replacement of Out-of-Box Failure SM(s) including shipment, transportation and
other costs of gathering and redistributing the affected SMs.
2.5 Any replacement, repair, modification, installation or other service
performed by Contractor shall be warranted, commencing with the date upon which
repaired SM is returned to the sending party, for the remainder of the unexpired
period of the warranty or ninety (90) days, whichever is greater.
2.6 The warranties stated above do not extend to SM or SM Software that
has been subjected to misuse, neglect or abuse not caused by Contractor or been
used in violation of approved written instructions furnished by Contractor with
the SM, if such action is the cause of the damage or malfunction, nor do they
apply to cosmetic problems or defects resulting from normal wear and tear in
ordinary use and which do not affect product performance or use.
3. SM REPAIR RETURN
3.1 Contractor will provide electronically to WildBlue a list of (or
mechanism for generating) Return Service Authorization (RSA) numbers to be used
for returned merchandise through a mutually agreed upon interface.
3.2 The following information shall be furnished with SMs returned to
Contractor for repairs:
3.2.1 Name of User, complete address and phone number;
3.2.2 "Ship to" address for return of repaired SM, if different from
(1 );
3.2.3 A reasonable description of the nature of the defect or
failure, if known;
3.2.4 SM warranty status via receipt, or RSA.
3.2.5 RSA number; and
3.2.6 SM Serial Number.
3.3 All SMs shipped to Contractor for repair shall have repair tags
attached by Contractor which shall contain the above stated information.
3.4 SMs repaired by Contractor shall have the repair completion date
stenciled or otherwise identified in a permanent manner in a readily visible
location on SM and the repaired SM shall be returned with a tag or other
documentation describing the repairs that have been made. If Contractor
maintains statistical records for repaired SM, the information shall be made
available to WildBlue upon reasonable request.
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SCHEDULE 14
POST WARRANTY SUPPORT AND MAINTENANCE
1. TECHNICAL SUPPORT FOR SM
The terms for post-warranty technical support are identical to those outlined in
Schedule 13 under the section "Technical Support for SM."
2. POST-WARRANTY
2.1 Repair charges for SM Hardware out of warranty shall be as specified
in Schedule 16 and shall not be changed by Contractor without written notice to
WildBlue thirty (30) days in advance of such change. WildBlue shall be
responsible for payment of all charges for out of warranty repair, SM
replacement and return shipment hereunder.
2.2 Defective WBSM Hardware out of warranty may be returned to
Contractor for repair or replacement. Contractor shall complete repairs and ship
repaired SM Hardware or replacement SM within twenty (20) days of receipt of
defective SM Hardware at Contractor's designated repair location.
2.3 Sending Party shall bear the risk of loss or damage of SM being
shipped to Contractor for post-warranty servicing and shall prepay and bear the
cost of transportation charges for shipment to Contractor of SM to be repaired
or replaced. Return shipments shall be sent FOB origin; freight prepaid and
charged.
If Contractor determines that a returned SM is not subject to Defects,
Contractor shall return SM to the location designated by WildBlue in its "as
received" condition and WildBlue will be charged a fee as outlined in Schedule
16. Determination of fee payment is the same as defined in Schedule 13, Section
2.2. If Contractor determines that a returned SM is irreparable, Contractor
shall promptly notify WildBlue.
2.4 SM Software maintenance which includes the download of Point
Releases and Software Patch releases will be made available electronically to
WildBlue. Under this agreement Contractor will provide Wild Blue with one copy
of software that contains Point Releases and Software Patch releases. WildBlue
is responsible for distribution to its end users.
2.5 Any replacement, repair, modification, installation or other service
performed by Contractor shall be warranted, commencing with the date upon which
repaired SM is delivered to WildBlue, for a period of ninety (90) days.
3. SM REPAIR RETURN
3.1 The terms for product repair return are identical to those outlined
in Schedule 10 under the section "SM Repair Return."
4. EMERGENCY REPLACEMENT SERVICE
4.1 WildBlue has the option to request expedited service for repair and
replacement. Charges for this emergency service are shown in Schedule 16. In
addition to the ability to expedite individual units, Contractor may sign a
maintenance agreement that covers all SMs shipped to Contractor
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according to the terms of the agreement. If WildBlue has paid all applicable
fees, or if WildBlue elects to expedite a specific repair case and agrees to pay
the fees listed in Schedule 16, then:
4.1.1 Contractor agrees to ship replacement SM or SM Software by the
most expedient means available, within forty-eight (48) hours after receipt of
the defective unit at Contractor authorized repair facility.
4.1.2 Contractor shall return such repaired unit to WildBlue or its
designated location after repair (FOB origin; freight collect) and charge
WildBlue the Out of Warranty fees listed in Schedule 16.
4.1.3 If the defective SM or SM Software is not returned to
Contractor within fifteen (15) days from the date of shipment of the new
replacement SM or SM Software, Contractor may invoice WildBlue for such new
replacement SM or SM Software at Contractor's then current list price, less
WildBlue's applicable discount.
In order to schedule shipment of replacement SM, WildBlue may telephone
Contractor during normal working hours. Fees for such emergency service are
outlined in Schedule 16.
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SCHEDULE 15
Document Reproduction License and Guidelines
1. APPLICABILITY AND DEFINITIONS
This license applies to any documentation or written materials that are prepared
by Contractor and delivered to WildBlue under the terms of the Agreement
(collectively, "DOCUMENTS").
"ATP DOCUMENTS" means Documents required to be prepared by Contractor and
delivered to WildBlue in connection with the Acceptance Testing conducted by
Contractor under the Agreement.
"ESCROW DOCUMENTS" means all Documents delivered to the escrow agent under the
Escrow Agreement.
A "MODIFIED VERSION" of the document means any work containing the document or a
portion of it, either copied verbatim, or with modifications and/or translated
into another language.
A "SOFT" copy of the document means a machine-readable copy, represented in a
format whose specification is available to the general public, whose contents
can be viewed and edited directly and straightforwardly with generic text
editors or (for images composed of pixels) generic paint programs or (for
drawings) some widely available drawing editor, and that is suitable for input
to text formatters or for automatic translation to a variety of formats suitable
for input to text formatters. A copy made in an otherwise Soft copy format that
has been designed to thwart or discourage subsequent modification by readers or
is in paper form is not Soft. A copy that is not "Soft" is called "HARD".
"TRAINING DOCUMENTS" means all training Documents delivered to WildBlue in
accordance with Section 11 of the Agreement.
"TECHNICAL DOCUMENTS" means all technical Documents, excluding Escrow Documents,
User Documents, and Training Documents, that are delivered to WildBlue by
Contractor under the terms of the Agreement."
"USER DOCUMENTS" means all SM user instruction manuals and other user
information necessary for the operation and use of the SM delivered to WildBlue
by Contractor under the terms of the Agreement.
2. COPYING
ATP DOCUMENTS. WildBlue may copy and distribute the ATP Documents in Hard copy
format, in connection with its analysis of the SM test results, provided that
this License, the copyright notices, and the license notice saying this License
applies to the Technical Documents are reproduced in all copies. Distribution of
ATP Documents to third parties shall be limited to those parties assisting
WildBlue in conducting acceptance testing or analysis thereof and provided that
such third parties assume the obligations described in Section 18.3 of the
Agreement.
ESCROW DOCUMENTS. WildBlue may copy and distribute the Escrow Documents in Soft
or Hard format, in accordance with Section 10.7 of the Agreement, provided that
this License, the copyright notices, and the license notice saying this License
applies to the Escrow Documents are reproduced in all copies. Distribution of
Escrow Documents shall be limited to entities performing services related to the
Escrow Documents, including subcontractors, suppliers or agents where (i) use of
such entity is permitted to be
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used under this Agreement, (ii) such disclosure is necessary or otherwise
naturally occurs in that entity's scope of responsibility, and (iii) the entity
agrees in writing to assume the obligations described in Section 18.3 of the
Agreement.
USER DOCUMENTS. WildBlue may copy and distribute the User Documents in
connection with the sales, service or marketing of SMs, provided that this
License, the copyright notices, and a license notice saying this License applies
to the User Documents are reproduced in all copies. User Documents that are
meant to be distributed along with SMs may be included in the packaging and
shipment of such product (one copy only). One copy may also be included in a
"read me" or "help file" or other similar digital form; provided that such items
include Contractor's copyright notice and a link to Contractor's web site.
Distribution of User Documents to third parties shall only be distributed in
Hard copy format and shall be limited to users of the SM and all other third
parties that WildBlue deems to reasonably require use of User Documents in that
entity's scope of responsibility and provided that such third parties assume the
obligations described in Section 18.3 of the Agreement.
TRAINING DOCUMENTS. WildBlue may copy and distribute the Training Documents in
Soft or Hard format, in connection with service and operation of the SMs in the
WildBlue satellite system, provided that this License, the copyright notices,
and the license notice saying this License applies to the Training Documents are
reproduced in all copies. Distribution of Training Documents to third parties
shall be limited to those parties WildBlue reasonably requires use of Training
Documents in that parties scope of responsibility and provided that such third
parties assume the obligations described in Section 18.3 of the Agreement.
TECHNICAL DOCUMENTS. WildBlue may copy and distribute the Technical Documents in
Soft or Hard format, in connection with its service and operation of the
WildBlue satellite system, provided that this License, the copyright notices,
and the license notice saying this License applies to the Technical Documents
are reproduced in all copies. Distribution of Technical Documents shall be
limited to entities performing services related to the Technical Documents,
including subcontractors, suppliers or agents where (i) use of such entity is
permitted to be used under this Agreement, (ii) such disclosure is necessary or
otherwise naturally occurs in that entity's scope of responsibility, and (iii)
the entity agrees in writing to assume the obligations described in Section 18.3
of the Agreement.
Notwithstanding the foregoing, WildBlue shall not transfer (nor permit any third
party to transfer) any Documents (except Escrow Documents permitted in
accordance with Section 10.7 of the Agreement and this Schedule) to other
satellite modem manufacturers. All Documents transferred to third parties that
requires a confidentiality agreement hereunder shall include a third party right
of enforcement term for Contractor.
3. MODIFICATIONS
WildBlue may copy and distribute a Modified Version of the Escrow Documents,
User Documents, Technical Documents and the Training Documents under the
conditions of Section 2 above. In addition, WildBlue must do these things in the
Modified Version:
1. List on the title page or first page, Contractor as original author,
and, at WildBlue's option, one or more persons or entities
responsible for authorship of the modifications in the Modified
Version
2. Preserve all the copyright notices of the Documents.
3. Include restrictions on use and distribution consistent with this
License.
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4. Do not retitle the Documents.
5. Provide one copy of all Modified Versions to Contractor.
4. COMBINING DOCUMENTS
WildBlue may extract a portion of a Document, and distribute it individually
under this License, provided WildBlue follow this License in all other respects
regarding verbatim copying of that document.
5. TRANSLATION
Translation is considered a type of Modification, so WildBlue may distribute
translations of the Documents under the terms of Section 3. WildBlue may include
a translation of this License provided that WildBlue also include the original
English version of this License. In case of a disagreement between the
translation and the original English version of this License, the original
English version will prevail.
6. GENERAL RESTRICTIONS.
Notwithstanding anything to the contrary herein, no Document prepared by
Contractor and delivered to WildBlue (except Escrow Documents properly released
to WildBlue under the Agreement) shall be distributed to other satellite
terminal manufacturers.
Nothing herein shall in any way restrict WildBlue's use, distribution,
reproduction or modification of the Interface Specifications.
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SCHEDULE 16
WARRANTY FEE SCHEDULE
WildBlue may purchase Extended Warranty coverage for SMs purchased under this
Agreement at the time the Order is placed or at any time during the original
Warranty Period. The Extended Warranty coverage will include the standard
warranty services defined in Schedule 13, Section 2 (excluding Section 2.3). The
prices for Extended Warranty for SM-A and SM-B versions are listed in the table
below.
TABLE 1 EXTENDED WARRANTY PRICING
------------------------- ----------------------- ----------------------- -----------------------
1 year 2 years 3 years
beyond basic warranty beyond basic warranty beyond basic warranty
------------------------- ----------------------- ----------------------- -----------------------
SM-A or SM-B $*** $*** $***
------------------------- ----------------------- ----------------------- -----------------------
The period of the Extended Warranty listed in Table 1 is defined to cover the
period from the expiration of the original warranty defined in Schedule 13
through the number of additional years identified in the table.
A pricing schedule for post warranty repair services will be added to this
schedule prior to the delivery of the first production terminals. This pricing
schedule will be no less favorable than that offered by Contractors to other
customers for similar services and terms.
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SCHEDULE 17
SATELLITE PHYSICAL LAYER MIB OBJECTS.
***
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SCHEDULE 18
MASTER PREFERRED ESCROW AGREEMENT.
Master Number ______________________.
THIS MASTER PREFERRED ESCROW AGREEMENT (the "Agreement") is entered into and
effective as of February ___, 2001 ("Effective Date") by and among DSI
TECHNOLOGY ESCROW SERVICES, INC. ("DSI"), VIASAT , INC., a Delaware corporation
with its principal place of business at 0000 Xx Xxxxxx Xxxx, Xxxxxxxx,
Xxxxxxxxxx 92009("ViaSat") and WILDBLUE COMMUNICATIONS, INC., a Delaware
corporation with it principal place of business at 0000 Xxxxx Xxxxxxxx, Xxxxx
000, Xxxxxx, Xxxxxxxx 00000 ("WildBlue"), who may be referred to in this
Agreement individually as a "Party" or collectively as the "Parties." WildBlue
may sometimes be referred to as "Preferred Beneficiary."
A. ViaSat and WildBlue have entered or will enter into an agreement regarding
certain proprietary technology developed by ViaSat.
B. ViaSat desires to avoid disclosure of its proprietary technology except under
certain limited circumstances.
C. The availability of the proprietary technology of ViaSat is critical to
WildBlue in the conduct of its business and, therefore, WildBlue need access to
the proprietary technology under certain limited circumstances.
D. ViaSat and WildBlue desire to establish an escrow with DSI to provide for the
retention, administration and controlled access of certain proprietary
technology materials of ViaSat.
E. The Parties desire this Agreement to be supplementary to the Relevant
Agreements pursuant to 00 Xxxxxx Xxxxxx Bankruptcy Code, Section 365(n).
ARTICLE 1 -- DEPOSITS.
1.1 Obligation to Make Deposit. Within ninety (90) days after the signing of
Satellite Modem Development, Production and Purchase Agreement between WildBlue
and ViaSat, dated March 5, 2001, and the Satellite Modem Termination System
Development, Production and Purchase Agreement between WildBlue and ViaSat,
dated ______________, 2001 (collectively referred to herein as the "Relevant
Agreements"), ViaSat shall begin to deliver to DSI the proprietary technology
and other materials ("Source Materials") as required by the Relevant Agreements
to be deposited and identified on Exhibit A. Exhibit A is to be prepared and,
once the Parties have agreed, signed by ViaSat and WildBlue. DSI shall have no
obligation with respect to the preparation, signing or delivery of Exhibit A.
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1.2 Identification of Tangible Media. Prior to the delivery of the Source
Materials to DSI, ViaSat shall conspicuously label for identification each
document, magnetic tape, disk, or other tangible media upon which the Source
Materials are written or stored. Additionally, ViaSat shall complete Exhibit B
to this Agreement by listing each such tangible media by the item label
description, the type of media, the quantity and whether such Source Materials
relate to the WBSM or SMTS. The Exhibit B shall be signed by ViaSat and
delivered to DSI with the Source Materials. Unless and until ViaSat makes the
initial deposit with DSI, DSI shall have no obligation with respect to this
Agreement, except the obligation to notify the Parties regarding the status of
the deposit account as required in Section 2.2 below.
1.3 Deposit Inspection. When DSI receives the Source Materials and the Exhibit
B, DSI will conduct a deposit inspection by visually matching the labeling of
the tangible media containing the Source Materials to the item descriptions and
quantity listed on the Exhibit B. In addition to the deposit inspection,
WildBlue may elect to cause a verification of the Source Materials in accordance
with Section 1.6 below.
1.4 Acceptance of Deposit. At completion of the deposit inspection, if DSI
determines that the labeling of the tangible media matches the item descriptions
and quantity on Exhibit B, DSI will date and sign the Exhibit B and mail a copy
thereof to ViaSat and WildBlue. If DSI determines that the labeling does not
match the item descriptions or quantity on Exhibit B, DSI will (a) note the
discrepancies in writing on Exhibit B; (b) date and sign Exhibit B with the
exceptions noted; and (c) mail a copy of Exhibit B to ViaSat and WildBlue. DSI's
acceptance of the deposit occurs upon the signing of Exhibit B by DSI. Delivery
of the signed Exhibit B to WildBlue is WildBlue's notice that the Source
Materials have been received and accepted by DSI.
1.5 ViaSat's Representations. ViaSat represents as follows:.
a. ViaSat lawfully possesses all of the Source Materials deposited with DSI;.
b. With respect to all of the Source Materials, ViaSat has the right and
authority to grant to DSI and WildBlue the rights as provided in this
Agreement;.
c. The Source Materials are not subject to any lien or other encumbrance;.
d. The Source Materials consist of the proprietary technology and other
materials identified in the Relevant Agreements and Exhibit A; and.
e. The Source Materials are readable and useable in their current form or, if
any portion of the Source Materials are encrypted, the decryption tools and
decryption keys have also been deposited.
1.6 Verification. A verification determines, in different levels of detail, the
accuracy, completeness, sufficiency and quality of the Source Materials. .
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a. DSI shall perform a Level 1 verification of the Source Materials upon the
initial deposit and for each update. A Level 1 verification is defined as
follows: DSI will cause a technically qualified DSI employee to evaluate the
Source Materials in order to identify (a) the hardware and software
configurations reasonably necessary to maintain the Source Materials; (b) the
hardware and software configurations reasonably necessary to compile the Source
Materials; and (c) the compilation instructions. DSI will then prepare and
deliver to ViaSat and WildBlue a report describing the information so
identified. It shall be the responsibility of ViaSat, and not DSI, to ensure
that the Source Materials contain the information so identified in DSI's report,
as well as any other information that may be required in the Relevant Agreements
and Exhibit A.
b. WildBlue shall have the right to cause a verification of any Source
Materials, at WildBlue's expense. WildBlue shall notify ViaSat and DSI of
WildBlue's request for verification. ViaSat shall have the right to be present
at the verification. If a verification is elected after the Source Materials
have been delivered to DSI, then only DSI, or at DSI's election an independent
person or company selected and supervised by DSI who has executed a
confidentiality agreement consistent with this Agreement to protect the
confidentiality of the Source Materials, may perform the verification.
1.7 Deposit Updates.
a. Generally. Unless otherwise provided by the Relevant Agreements, ViaSat shall
update the Source Materials within sixty (60) days after ViaSat reaches a
Milestone as defined the Relevant Agreements or each release of a Major Release,
Point Release, new version of the product which is subject to the Relevant
Agreements. Such updates will be added to the existing deposit. All deposit
updates shall be listed on a new Exhibit B and the new Exhibit B shall be signed
by ViaSat. Each Exhibit B will be held and maintained separately within the
escrow account. An independent record will be created which will document the
activity for each Exhibit B. The processing of all deposit updates shall be in
accordance with Sections 1.2 through 1.6 above. All references in this Agreement
to the Source Materials shall include the initial Source Materials and any
updates. .
b. DeposiTrack Service. DSI shall notify ViaSat in writing quarterly of ViaSat's
obligation to make updated deposits. Within sixty (60) days of receipt of such
notice, ViaSat shall certify in writing to DSI that (a) it has made the updated
deposits as required in the immediately preceding paragraph; or (b) there has
not been a release of a new version of the product since the last deposit.
Within seven (7) days after such sixty (60) day period, DSI shall notify
WildBlue that DSI has received (a) an updated deposit from ViaSat; (b) a
statement from ViaSat advising there has not been a release of a new version of
the product since the last deposit; or (c) no response from ViaSat. Unlimited
deposit updates and two (2) storage units are included in the fees for this
Agreement.
1.8 Removal of Source Materials. The Source Materials may be removed and/or
exchanged only on written instructions signed by ViaSat and WildBlue, or as
otherwise provided in this Agreement.
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ARTICLE 2 -- CONFIDENTIALITY AND RECORD KEEPING.
2.1 Confidentiality. DSI shall maintain the Source Materials in a secure,
environmentally safe, locked facility which is accessible only to authorized
representatives of DSI. DSI shall have the obligation to reasonably protect the
confidentiality of the Source Materials. Except as provided in this Agreement,
DSI shall not disclose, transfer, make available, or use the Source Materials.
DSI shall not disclose the content of this Agreement to any third party. If DSI
receives a subpoena or other order of a court or other judicial tribunal
pertaining to the disclosure or release of the Source Materials, DSI will
immediately notify the Parties to this Agreement unless prohibited by law. It
shall be the responsibility of ViaSat and/or WildBlue to challenge any such
order; provided, however, that DSI does not waive its rights to present its
position with respect to any such order. DSI will not be required to disobey any
court or other judicial tribunal order. (See Section 7.5 below for notices of
requested orders.).
2.2 Status Reports. DSI will issue to ViaSat and WildBlue a report profiling the
account history at least semi-annually including details of any deposit updates
made by ViaSat in accordance with Section 1.7. DSI may provide copies of the
account history pertaining to this Agreement upon the request of a Party to this
Agreement.
2.3 Audit Rights. During the term of this Agreement, ViaSat and WildBlue shall
each have the right to inspect the written records of DSI pertaining to this
Agreement. Any inspection shall be held during normal business hours and
following reasonable prior notice.
ARTICLE 3 -- GRANT OF RIGHTS TO DSI.
3.1 Title to Media. ViaSat hereby transfers to DSI the title to the media upon
which the proprietary technology and materials are written or stored. However,
this transfer does not include the ownership of the proprietary technology and
materials contained on the media such as any copyright, trade secret, patent or
other intellectual property rights.
3.2 Right to Make Copies. DSI shall have the right to make copies of the Source
Materials as reasonably necessary to perform its obligations under this
Agreement. DSI shall copy all copyright, nondisclosure, and other proprietary
notices and titles contained on the Source Materials onto any copies made by
DSI. With all Source Materials submitted to DSI, ViaSat shall provide any and
all instructions as may be necessary to duplicate the Source Materials including
but not limited to the hardware and/or software needed.
3.3 Right to Transfer Upon Release. ViaSat hereby grants to DSI the right to
transfer Source Materials to WildBlue upon any release of the Source Materials
for use by WildBlue in accordance with Section 4.5. Except upon such a release
or as otherwise provided in this Agreement, DSI shall not transfer the Source
Materials.
ARTICLE 4 -- RELEASE OF DEPOSIT.
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4.1 Release Conditions. As used in this Agreement, "ViaSat" shall included all
of ViaSat's subsidiaries and "Release Conditions" shall mean the existence of
any one or more of the following circumstances:.
a. ViaSat is unable or unwilling, after fourteen (14) days written notice from
WildBlue, to provide support and maintenance for SMs or SMTSs, as applicable, in
accordance with the Relevant Agreements;.
b. ViaSat is subject to an Insolvency Event as follows:.
(i) ViaSat makes an assignment for the benefit of creditors or is
generally unable to pay its debts as such debts become due for
sixty (60) days; or
(ii) any decree or order for relief in respect of ViaSat is entered,
under any bankruptcy, reorganization, insolvency, dissolution, or
liquidation or similar law, whether now or hereafter in effect
(herein called the "Bankruptcy Law") of any relevant
jurisdiction; or
(iii) ViaSat petitions or applies to any tribunal for, or consents to
the appointment of, or taking possession by, a trustee, receiver,
custodian, or liquidator, of any substantial part of the assets
of ViaSat, or commences a voluntary case under the Bankruptcy Law
of the United States or any proceedings relating to ViaSat under
the Bankruptcy Law of any other jurisdiction, that is not stayed
or dismissed within sixty (60) days; or
(iv) any such petition or application is filed, or any such
proceedings are commenced, against ViaSat by a third party that
are not stayed or dismissed within sixty (60) days and ViaSat, by
any act, indicates its approval thereof, consent thereto or
acquiescence to such petition, application or proceedings; or.
c. WildBlue requires Feature Work (as defined in the Relevant Agreements) to be
performed on SMs or SMTSs, as applicable, and ViaSat is unwilling to perform the
Feature Work or the Parties are unable to agree on the terms under which ViaSat
would perform such feature work in accordance with the applicable Relevant
Agreement; .
d. termination due to breach of a material term of a Relevant Agreement by
ViaSat; or .
e. at the end of the Term, ViaSat will not extend the Relevant Agreement on
commercially reasonable terms. .
4.2 Filing for Release. If WildBlue believes in good faith that a Release
Condition has occurred, WildBlue may provide to DSI written notice of the
occurrence of the Release Condition and a request for the release of the Source
Materials for the WBSM or SMTS, as applicable; provided, that in the case of a
Release Condition event described in Section 4.1(c) above, WildBlue shall only
be entitled to request release of those materials
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described in paragraph 1 of the definition of Source Materials set forth on
Exhibit A hereto. WildBlue shall only be entitled to request a release of both
WBSM and SMTS Source Materials if a Release Condition exists under both Relevant
Agreements. Upon receipt of such notice, DSI shall provide a copy of the notice
to ViaSat by commercial overnight mail. .
4.3 Contrary Instructions. From the date ViaSat receives a request for release
of the all or part of the Source Materials, ViaSat shall have fourteen (14)
calendar days to deliver to DSI Contrary Instructions. "Contrary Instructions"
shall mean the written representation by ViaSat that a Release Condition has not
occurred or has been cured or that the list of Source Materials requested by
WildBlue is beyond the scope of Source Materials permitted to be released under
this Agreement or the Relevant Agreement(s). Upon receipt of Contrary
Instructions, DSI shall send a copy to WildBlue by commercial express mail.
Additionally, DSI shall notify both ViaSat and WildBlue that there is a dispute
to be resolved pursuant to the Dispute Resolution section of this Agreement
(Section 7.3). Subject to Section 5.2, DSI will continue to store the Source
Materials without release pending (a) joint instructions from ViaSat and
WildBlue; (b) resolution pursuant to the Dispute Resolution provisions; or (c)
order of a court.
4.4 Release of Deposit. If DSI does not receive Contrary Instructions from
ViaSat, DSI is authorized to release the requested Source Materials (the
"Released Source Materials") to WildBlue. However, DSI is entitled to receive
any fees due DSI before making the release. Any copying expense in excess of
$300 will be chargeable to WildBlue. Upon any such release, the escrow
arrangement will be suspended as it relates to ViaSat and WildBlue involved in
the release.
4.5 Right to Use Following Release.
Subject to the terms and conditions of this Agreement and the Relevant
Agreements, ViaSat hereby grants to WildBlue a current non-exclusive, perpetual,
royalty free, worldwide, non-transferable (except as provided in the Assignment
provision) license to access, utilize modify and adapt the Released Source
Materials, make, have made, use, have used, sell, lease or otherwise transfer
SMs and SMTSs (as defined in the Relevant Agreements), as applicable, and to
provide or have a third party provide support and maintenance or Feature Work
(as defined below) for SMs and SMTSs, as applicable, in accordance with the
terms of the applicable Relevant Agreement; provided, that in the case of a
Release Condition event described in Section 4.1(c) above, such license shall be
limited to a world-wide, non-exclusive, non-transferable, perpetual, royalty
free license to access, utilize, modify and adapt the Released Source Materials
solely for the development, distribution and support of the new Features and
functions . WildBlue hereby covenants not to exercise the rights granted to it
in this clause 4.5 except upon the valid release of the Released Source
Materials pursuant to a Release Event as provided in this Agreement and the
Relevant Agreements. WildBlue shall be obligated to maintain the confidentiality
of the Released Source Materials and treat such Released Source Materials as
"Confidential Information" in accordance with the terms of the applicable
Relevant Agreement. .
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ARTICLE 5 -- TERM AND TERMINATION.
5.1 Term of Agreement. The initial term of this Agreement is for a period of one
year. Thereafter, this Agreement shall automatically renew from year-to-year
unless (a) ViaSat and WildBlue jointly instruct DSI in writing that the
Agreement is terminated; or (b) the Agreement is terminated by DSI for
nonpayment in accordance with Section 5.2. If the Acceptance Form has been
signed at a date later than this Agreement, the initial term of the Acceptance
Form will be for one year with subsequent terms to be adjusted to match the
anniversary date of this Agreement. If the Source Materials are subject to
another escrow agreement with DSI, DSI reserves the right, after the initial one
year term, to adjust the anniversary date of this Agreement to match the then
prevailing anniversary date of such other escrow arrangements.
5.2 Termination for Nonpayment. In the event of the nonpayment of fees owed to
DSI, DSI shall provide written notice of delinquency to the Parties to this
Agreement affected by such delinquency. Each Party shall have the right to make
the payment to DSI to cure the default. If the past due payment is not received
in full by DSI within one month of the date of such notice, then at any time
thereafter DSI shall have the right to terminate this Agreement to the extent it
relates to the delinquent Party by sending written notice of termination to such
affected Parties. DSI shall have no obligation to take any action under this
Agreement so long as any payment due to DSI remains unpaid.
5.3 Disposition of Source Materials Upon Termination. Upon termination of this
Agreement, DSI shall destroy, return, or otherwise deliver the Source Materials
in accordance with instructions. If there are no instructions, DSI may, at its
sole discretion, destroy the Source Materials or return them to ViaSat. DSI
shall have no obligation to return or destroy the Source Materials if the Source
Materials are subject to another escrow agreement with DSI.
5.4 Survival of Terms Following Termination. Upon termination of this Agreement,
the following provisions of this Agreement shall survive:.
a. ViaSat's Representations (Section 1.5) if a release of the Source
Materials has occurred prior to the termination;.
b. The obligations of confidentiality with respect to the Source
Materials;.
c. The rights granted in the sections entitled Right to Transfer
Upon Release (Section 3.3) and Right to Use Following Release
(Section 4.5), if a release of the Source Materials has occurred
prior to termination;.
d. The obligation to pay DSI any fees and expenses due;.
e. The provisions of Article 7; and.
f. Any provisions in this Agreement which specifically state they
survive the termination or expiration of this Agreement.
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ARTICLE 6 -- DSI'S FEES.
6.1 Fee Schedule. DSI is entitled to be paid its standard fees and expenses
applicable to the services provided. Unless otherwise stated in this Agreement
or agreed in a writing signed by DSI, WildBlue will pay DSI's fees. DSI shall
notify the Party responsible for payment of DSI's fees at least sixty (60) days
prior to any increase in fees. For any service not listed on DSI's standard fee
schedule, DSI will provide a quote prior to rendering the service, if requested.
6.2 Payment Terms. DSI shall not be required to perform any service unless the
payment for such service and any outstanding balances owed to DSI are paid in
full. Fees are due upon receipt of a signed contract or receipt of the Source
Materials whichever is earliest. If invoiced fees are not paid, DSI may
terminate this Agreement in accordance with Section 5.2. Late fees on past due
amounts shall accrue interest at the rate of one and one-half percent per month
(18% per annum) from the date of the invoice.
ARTICLE 7 -- LIABILITY AND DISPUTES.
7.1 Right to Rely on Instructions. DSI may act in reliance upon any instruction,
instrument, or signature reasonably believed by DSI to be genuine. DSI may
assume that any employee of a Party to this Agreement who gives any written
notice, request, or instruction has the authority to do so. DSI shall not be
required to inquire into the truth or evaluate the merit of any statement or
representation contained in any notice or document. DSI shall not be responsible
for failure to act as a result of causes beyond the reasonable control of DSI.
7.2 Indemnification. ViaSat and WildBlue each agree to indemnify, defend and
hold harmless DSI from any and all claims, actions, damages, arbitration fees
and expenses, costs, attorney's fees and other liabilities ("Liabilities")
incurred by DSI relating in any way to this escrow arrangement unless such
Liabilities were caused solely by the negligence or willful misconduct of DSI.
7.3 Dispute Resolution. Unless otherwise agreed by ViaSat or WildBlue, any
dispute relating to or arising from this Agreement shall be initiated and
maintained in a court of competent jurisdiction in Denver, Colorado, USA or San
Diego, California, USA.
7.4 Controlling Law. This Agreement is to be governed and construed in
accordance with the laws of the State of New York, United States of America,
without regard to its conflict of law provisions.
7.5 Notice of Requested Order. If any Party intends to obtain an order from the
arbitrator or any court of competent jurisdiction which may direct DSI to take,
or refrain from taking any action, that Party shall:.
a. Give DSI at least two business days' prior notice of the hearing;.
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b. Include in any such order that, as a precondition to DSI's obligation,
DSI be paid in full for any past due fees and be paid for the reasonable
value of the services to be rendered pursuant to such order; and.
c. Ensure that DSI not be required to deliver the original (as opposed to a
copy) of the Source Materials if DSI may need to retain the original in
its possession to fulfill any of its other escrow duties.
ARTICLE 8 -- GENERAL PROVISIONS.
8.1 Entire Agreement. This Agreement, which includes the Acceptance Form and the
Exhibits described herein, and the Relevant Agreements embodies the entire
understanding among all of the Parties with respect to its subject matter and
supersedes all previous communications, representations or understandings,
either oral or written. DSI is not a party to the Relevant Agreements between
ViaSat and WildBlue and has no knowledge of any of the terms or provisions of
any such Relevant Agreements. DSI's only obligations to ViaSat or WildBlue are
as set forth in this Agreement. No amendment or modification of this Agreement
shall be valid or binding unless signed by all the Parties hereto, except that
Exhibit A need not be signed by DSI, Exhibit B need not be signed by WildBlue,
Exhibit C need not be signed, and the Acceptance Form need only be signed by the
Parties identified therein.
8.2 Notices. All notices, invoices, payments, deposits and other documents and
communications shall be given to the Parties at the addresses specified in the
attached Exhibit C and Acceptance Form. It shall be the responsibility of the
Parties to notify each other as provided in this Section in the event of a
change of address or facsimile number. The Parties shall have the right to rely
on the last known address or facsimile number of the other Parties. Unless
otherwise provided in this Agreement, all notices must be in writing and all
notices, documents and communications may be delivered by a reputable courier
service, by electronic facsimile (followed by a copy by mail), or by certified
or registered mail, (postage prepaid and return receipt requested). Notices sent
by overnight courier shall be deemed received the day after the notice was sent.
8.3 Severability. In the event any provision of this Agreement is found to be
invalid, voidable or unenforceable, the Parties agree that unless it materially
affects the entire intent and purpose of this Agreement, such invalidity,
voidability or unenforceability shall affect neither the validity of this
Agreement nor the remaining provisions herein, and the provision in question
shall be deemed to be replaced with a valid and enforceable provision most
closely reflecting the intent and purpose of the original provision.
8.4 Successors. This Agreement shall be binding upon and shall inure to the
benefit of the successors and assigns of the Parties. However, DSI shall have no
obligation in performing this Agreement to recognize any successor or assign of
ViaSat or WildBlue unless DSI receives clear, authoritative and conclusive
written evidence of the change of Parties.
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8.5 Regulations. ViaSat and WildBlue are responsible for and warrant compliance
with all applicable laws, rules and regulations, including but not limited to
customs laws, import, export, and re-export laws and government regulations of
any country from or to which the Source Materials may be delivered in accordance
with the provisions of this Agreement.
VIASAT, INC. DSI TECHNOLOGY ESCROW SERVICES, INC.
By: ________________________________ By: _______________________________.
Name: ______________________________ Name: _____________________________.
Title: _____________________________ Title: ____________________________.
Date: ______________________________ Date: _____________________________.
WILDBLUE COMMUNICATIONS, INC.
By: ________________________________
Name: ______________________________
Title: _____________________________
Date: ______________________________
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PREFERRED BENEFICIARY ACCEPTANCE FORM.
Account Number ________________.
ViaSat, WildBlue and DSI Technology Escrow Services, Inc. ("DSI"), hereby
acknowledge that WildBlue Communications, Inc. is WildBlue referred to in the
Master Preferred Escrow Agreement ("Agreement") effective January ___, 2001 with
DSI as the escrow agent and ViaSat as the depositor of the Source Materials.
WildBlue hereby agrees to be bound by all provisions of such Agreement.
Notices and communications to and invoices for WildBlue should be addressed to:.
WildBlue Communications, Inc.
0000 Xxxxx Xxxxxxxx Xxxxxx, #000
Xxxxxx, XX 00000
Attention: Xxxxxxxx Xxxxx
With a copy to Xxxxx X. Xxxxx
Notices and communications to ViaSat should be addressed to:
ViaSat, Inc.
0000 Xx Xxxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Xxx Xxxxxxxxxx.
VIASAT, INC. DSI TECHNOLOGY ESCROW SERVICES, INC.
By: ________________________________ By: _______________________________.
Name: ______________________________ Name: _____________________________.
Title: _____________________________ Title: ____________________________.
Date: ______________________________ Date: _____________________________.
WILDBLUE COMMUNICATIONS, INC.
By: ________________________________
Name: ______________________________
Title: _____________________________
Date: ______________________________
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EXHIBIT A.
MATERIALS TO BE DEPOSITED.
Account Number _________________.
ViaSat represents to WildBlue that Source Materials delivered to DSI shall
consist of the following:
SOURCE MATERIALS means:
1. the human readable version of the Software written in a high level
language, including source code listings as then commented, system and
program flowcharts, and such other components, programs and documents to
fully utilize, modify and maintain the Software consistent with
standards set forth herein, including all necessary support routines
that enable the software program to be compiled into Executable Code,
all of which, where applicable, shall be on media that allows the
program to be read and processed. Source Code includes all documentation
and know-how reasonably necessary to allow a person reasonably skilled
in computer programming to understand and utilize such programs; and
2. notebooks, technical data, know-how, designs and other information with
respect to the design, development and production of the SMs and SMTSs,
as applicable, sufficient to enable WildBlue to access, utilize, modify
and adapt the Source Materials, make, have made, use, have used, sell,
lease or otherwise transfer SMs and SMTSs and to provide or have a third
party provide support and maintenance or Feature Work for the SMs and
SMTSs. .
VIASAT, INC. WILDBLUE COMMUNICATIONS, INC.
By: ________________________________ By: ________________________________
Name: ______________________________ Name: ______________________________
Title: _____________________________ Title: _____________________________
Date: ______________________________ Date: ______________________________
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EXHIBIT B.
DESCRIPTION OF SOURCE MATERIALS.
Depositor Company Name: ViaSat Networks Inc.
Account Number: __________________________.
Product Name: ____________________________ Version: _____________
(Product Name will appear as the Exhibit B Name on Account History report).
SM/SMTS RELATIONSHIP.
__________ SM __________SMTS.
DEPOSIT MATERIAL DESCRIPTION:
Quantity Media Type & Size Label Description of Each Separate Item.
____ Disk 3.5" or ____
____ DAT tape ____mm
____ CD-ROM
____ Data cartridge tape ____
____ TK 70 or ____ tape
____ Magnetic tape ____
____ Documentation
____ Other ______________________.
PRODUCT DESCRIPTION:
Environment: ______________________________________________________________
DEPOSIT MATERIAL INFORMATION:
Is the media or are any of the files encrypted? Yes / No If yes, please include
any passwords and the decryption tools.
Encryption tool name________________________ Version:__________________
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Hardware required: _________________________________________________________
Software required: _________________________________________________________
Other required information: ________________________________________________
I certify for ViaSat that the above described Source Materials have been
transmitted to DSI:.
Signature: ________________________
Print Name: _______________________
Date: _____________________________
DSI has inspected and accepted the above materials (any exceptions are noted
above):.
Signature: _________________________
Print Name: ________________________
Date Accepted:______________________
Exhibit B#:_________________________
Send materials to: DSI, 0000 Xxx Xxxx Xx., Xxxxx 000, Xxx Xxxxx, XX 00000 (858)
499-1600.
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EXHIBIT C.
DESIGNATED CONTACT.
Account Number: _________________.
Notices and communications Invoices should be addressed to:
should be addressed to
For ViaSat Networks:
For WildBlue Communications Company:
Requests to change the designated contact should be given in writing by the
designated contact or an authorized employee.
Contracts, Source Materials and Invoice inquiries and fee
notices to DSI should be addressed: remittances addressed to:.
DSI DSI
Contract Administration Accounts Receivable
Xxxxx 000 X.X. Xxx 00000
0000 Xxx Xxxx Xxxxx Xxx Xxxxxxxxx, XX 00000-0000
Xxx Xxxxx, XX 00000
Tel: (000)000-0000 Tel: (000) 000-0000
Fax: (000)000-0000 Fax: (000) 000-0000.
Date:__________________
