Beta-Site Agreement - InterDigital Communications Corp. and Worldwide Wireless Corp. Inc.
BETA-SITE AGREEMENT
THIS AGREEMENT, made as of the last date indicated below (hereinafter
"Effective Date"), by and between InterDigital Communications Corporation, a
Company, having offices located at 781 Third Avenue, King of Prussia, PA,
19406-1409 (hereinafter "IDC"), and Worldwide Wireless Corporation, Inc.,
having offices at 6 East 43rd St., New York, N.Y., 10017 (hereinafter
"WWW");
WHEREAS IDC is in the process of commercializing a wireless local loop
equipment ("TrueLink(TM) ") based upon IDC's proprietary Broadband Code
Division Multiple Access(TM) (B-CDMA(TM)) wireless communications technology
product;
WHEREAS IDC is desirous of deploying initial commercial TrueLink(TM)
equipment at a site in the United States;
WHEREAS WWW is in the business of operating wireless CATV networks,
including various service territories located in Vermont and desires to
expand the scope of services to include wireless voice and other services
provided by TrueLink(TM);
WHEREAS WWW is desirous of acquiring such TrueLink(TM) equipment for use in
the Vermont Beta-Site (as hereinafter defined); and
NOW THEREFORE, in consideration of the premises and of the mutual covenants
and agreements hereinafter set forth IDC and WWW covenant and agree as
follows:
1.0 - DEFINITIONS In addition to the definitions in SCHEDULE-A (TECHNICAL
SPECIFICATION) and SCHEDULE-B, IDC's standard Terms and Conditions sheet
(Terms and Conditions), both of which are incorporated herein, the following
terms and conditions shall apply:
"TrueLink(TM) equipment" shall mean a broadband code division multiple
access wireless local loop product (including base stations and subscriber
units) as embodied in the technical specifications identified in "SCHEDULE -
A" attached hereto and made a part hereof, or as modified from time to time
according to the terms of this Agreement.
"INTELLECTUAL PROPERTY RIGHTS" shall mean the legally recognized and
enforceable ability to prohibit others from making, having made, using or
selling ideas, articles of manufacture or methods for use of articles of
manufacture, embodying B-CDMA Wireless Local Loop Product including PATENTS,
COPYRIGHTS, KNOW-HOW and TRADE SECRETS.
"BETA-SITE" shall mean a location in Vermont, mutually agreeable to
IDC and WWW where the "TrueLink(TM) " equipment is to be installed and which
is suitable for providing subscriber service to the surrounding area.
"Vendor" when referred to in SCHEDULE-B shall mean IDC.
"Purchaser" when referred to in SCHEDULE-B shall mean WWW.
"Material Breach" small mean those conditions as defined herein and
any other condition which substantially impairs the value of this Agreement
to the non-aggrieved party.
"MMDS" - Multichannel Multipoint Distribution Service. Two sets of
four channels, commonly referred to as "Wireless Cable".
2.0 - OBLIGATIONS OF IDC IDC agrees, subject to WWW's obligations
hereunder, to supply to WWW and WWW agrees to purchase from IDC,
TrueLink(TM) equipment for the purpose of providing, from a base station
location, wireless services (as specified according to SCHEDULE - A)
pursuant to a joint effort between IDC and WWW as part of what is
hereinafter referred to as a Beta-Site effort capable of supporting up to
***** numbers of lines when fully loaded, in a post Beta operative mode, as
these terms is used in the industry;
IDC agrees to cooperate with and jointly decide upon, with WWW, a
suitable site for the Beta-Site effort and appropriate specific use of the
TrueLink(TM) equipment;
IDC agrees to provide all reasonably necessary and appropriate
installation services with respect to the TrueLink(TM) equipment;
IDC agrees to provide all reasonably necessary and appropriate
propagation services utilizing the coordination and other relevant
information to be supplied by WWW;
IDC agrees, subject to receipt of WWW's payments provided hereunder,
to provide an extended limited warranty (as recited in SCHEDULE-B) covering
maintenance and operation the TrueLink(TM) equipment and Software therein,
commencing upon final Acceptance of the operation of the TrueLink(TM)
equipment and for an additional period of six (6) months beyond the warranty
period of SCHEDULE-B. Thereafter IDC agrees to provide maintenance for the
TrueLink(TM) equipment and Software according to IDC's then usual and
customary pricing, terms and conditions.
3.0 - OBLIGATIONS OF WWW Purchase Price. WWW shall pay IDC as the purchase
price(s) for the TrueLink(TM) equipment, including all services provided by
IDC herein, as follows:
$1,500.00 for each FSU, as described in SCHEDULE - A;
$80,000.00 for all infrastructure equipment necessary to accommodate
up to ten (10) FSU's, as described in SCHEDULE - A; and thereafter in order
to increase the subscriber capability of the TrueLink(TM) equipment to be
provided;
An additional $70,000.00 for all infrastructure equipment necessary to
accommodate FSU's units eleven (11) through one hundred (100), as described
in SCHEDULE - A; and thereafter in order to increase the subscriber
capability of the TrueLink(TM) equipment to be provided;
An additional $100,000.00 for all infrastructure equipment necessary
to accommodate FSU's units one hundred one (101) through five hundred (500),
as described in SCHEDULE - A
Payment for such amounts shall be as follows:
20% upon initial shipment of each piece or component of the
TrueLink(TM) equipment by or on behalf of IDC;
30% upon substantial completion of installation of the
associated piece or component of the TrueLink(TM) equipment by
or on behalf of IDC;
The remainder of 50% upon final acceptance of the associated
piece or component of the TrueLink(TM) equipment as determined
according to the specifications in SCHEDULE - A
IDC will provide all services specified and required herein for an
amount, in addition to the equipment amounts specified above, which is
estimated as not exceeding $60,000.00, payable as follows:
$600.00 per man-day, to be billed by IDC according to IDC's usual and
customary billing practices.
Travel costs associated with such services, are not included in such
services amount of $60,000.00, but shall be reimbursed in full to IDC on an
actual disbursement basis, plus 5%, billed and payable in the same fashion
as services above.
Transportation. All transportation and shipping costs for the
TrueLink(TM) equipment will be shipped according to IDC's usual and
customary practices.
Test and Design Support. WWW agrees to utilization of and cooperation
with IDC of the Beta Test site for full design and equipment verification of
all TrueLink(TM) equipment supplied by IDC.
Provide Required Access WWW shall arrange for IDC and its
subcontractors to have access to all reasonably necessary WWW facilities,
and to the extent necessary subscriber's premises as required for the
performance of this Agreement.
Information and Data WWW shall make available to IDC upon request
such information and data (such as, but not necessarily limited to: reports,
studies, documents, records, plans, surveys, photographs, drawings, etc.) as
are available to it and as required for the performance of this Contract.
WWW Furnished Facilities and Equipment
WWW shall provide all required building space, including
rehabilitation and modifications as necessary, outside plant systems, and
commercial power as may be necessary or are set forth in the Technical
Specifications in SCHEDULE-A.
The delivery, installation, Hand Over and/or acceptance test dates or
schedule ("delivery dates"), as determined in SCHEDULE-A required of IDC
under this Agreement are based upon the expectation that WWW shall perform,
on a timely basis, its obligations under this Agreement and that WWW
furnished facilities and TrueLink(TM) equipment set forth in this Agreement
are suitable for its intended use and will be available to IDC as required
in this Agreement, or, if not so stated, in sufficient time to enable IDC to
meet such delivery dates. In the event that support services or property
are not delivered to IDC by such time or times, WWW shall, upon timely
written request made by IDC, make a determination of the delay, if any,
occasioned IDC thereby, and shall equitably adjust the delivery date and any
other contractual provision affected by any such delay, in accordance with
the procedures provided for in this Agreement. In the event the facilities
are, as made available to IDC, in a condition not suitable for the intended
use, IDC shall, upon receipt thereof, notify WWW of such fact and , as
directed by WWW and at WWW's expense, effect repair or modification, in
accordance with this Agreement. Failure by WWW to render or authorize WWW
to render such facilities as suitable shall be deemed a Material Breach of
this Agreement.
4.0 - COORDINATION & TIME FOR PERFORMANCE Technical Liaison. Within ten
(10) days of the effective date of this Agreement, WWW and IDC agree to each
appoint a individual Technical Liaison ("Liaison") who shall act as
intermediaries for their respective companies. Each Liaison shall be
responsible for coordinating the exchange of all information, providing
formal review and approval of that companies technical obligations
hereunder. All technical or technically coordinated issues must be approved
in writing by each Liaison in order to be effective.
Site Selection. WWW and IDC agree to mutually select and each Liaison
shall approve an appropriate geographical location for installation of the
TrueLink(TM) equipment utilizing the mapping capabilities and related
information and assistance supplied by IDC and other relevant criteria as
defined in SCHEDULE - A within _____days of the effective date of this
Agreement.
Engineering Design & Specifications. Within _____days of the
effective date of this Agreement WWW and IDC agree to draft an appropriate
Engineering Design & Specification Document suitable to the Beta-Site and
consistent with the specifications of TrueLink(TM), and addressing relevant
technical issues such as protocols, equipment characteristics, power and the
like and when finalized and approved by each Liaison shall become a part of
SCHEDULE - A hereto. Such Engineering Design & Specifications shall address
and include, in addition to TrueLink(TM) equipment operating and performance
characteristics :
Testing (Partial & Full Loading), including testing schedules, test
parameters and the like;
B-CDMA TrueLink(TM) Equipment Acceptance criteria; and
Commercial Availability which shall be upon successful TrueLink(TM)
equipment design, installation, testing and acceptance.
ACCEPTANCE The TrueLink(TM) equipment shall be considered complete
and ready for Acceptance tests pursuant to IDC's relevant Installation
Verification Test Procedure ("IVTP") when the network base station of the
TrueLink(TM) equipment is, in IDC's judgement, in working order.
IDC shall inform WWW in writing of the completion and readiness for
Acceptance testing of the TrueLink(TM) equipment at least one (1) week in
advance of the scheduled testing. The IVTP shall be conducted by IDC for a
period of time as mutually determined in SCHEDULE-A. IDC shall promptly
correct any substantive defect for which it may be responsible.
Upon successful completion of an IVTP for the TrueLink(TM) equipment,
a certificate of Acceptance shall be issued by WWW within two (2) weeks
therefrom. If WWW does not issue the certificate of Acceptance within said
period, the Acceptance shall be deemed to have been made on the date IDC
informed WWW that the TrueLink(TM) equipment is ready for Acceptance tests,
and IDC may execute such certificate on WWW's behalf. In addition, if WWW
puts the TrueLink(TM) equipment into commercial operation before Acceptance
without IDC's consent, the Acceptance certificate shall be deemed to have
been issued by WWW as of the time commercial operations commenced, and IDC
may execute such certificate on WWW's behalf.
5.0 - INDEPENDENT RELATIONSHIP IDC and WWW are independent entities and
neither is the agent or representative of the other. Neither is authorized
to enter into any agreements to bind the other. The commercial relationship
between IDC and WWW shall remain that of seller and purchaser and nothing
herein shall create or imply any partnership, franchise, employment or
otherwise.
6.O - EXCHANGE AND RESTRICTION OF INFORMATION WWW shall not use for any
purpose other than implementation of this Agreement any portion of the
CONFIDENTIAL INFORMATION or TRADE SECRETS supplied by or garnered from IDC
hereunder or any patent, trademark, or other INTELLECTUAL PROPERTY RIGHTS of
IDC nor copy any IDC designs of any IDC products, including but not limited
to the TrueLink(TM) equipment. Acknowledging that the damages sustainable
by IDC as a consequence of any breach of WWW's obligations under this
Section may be difficult to measure in monetary terms, WWW hereby agrees
that IDC shall be entitled (1) to have the continuation of any such breach
permanently enjoined and (2) to an award of exemplary damages in an
appropriate amount determined by arbitration as provided herein.
It is understood and acknowledged by WWW that during the course of
this Agreement, WWW will be exposed to and may receive CONFIDENTIAL
INFORMATION and/or TRADE SECRETS from IDC. Accordingly, IDC agrees to make
known to WWW, and WWW agrees to receive CONFIDENTIAL INFORMATION only for
the purposes allowed by and consistent with this Agreement and subject to
SCHEDULE-B.
Upon the expiration or termination of the Agreement, unless otherwise
agreed between the parties, WWW shall promptly return to IDC all proprietary
information furnished hereunder together except for those necessary for the
use, operation and maintenance of the TrueLink(TM) equipment.
Any material or substantive change to any documents or manuals
provided by IDC requires the prior written approval of IDC.
7.0 - DISCLOSURE OF INFORMATION TO IDC WWW shall promptly disclose to IDC
the details of any and all authorized modifications, changes, or
improvements in and to said TrueLink(TM) equipment. All unauthorized
modifications, changes, or improvements in and to said TrueLink(TM)
equipment shall from that point forward void all warranties provided herein.
This clause shall survive termination of this Agreement.
8.0 - INTELLECTUAL PROPERTY RIGHTS WWW agrees to assign to IDC all
INTELLECTUAL PROPERTY RIGHTS from any modifications, changes or improvements
by WWW, whether authorized or not, or any of its employees or
subcontractors thereto, developed during the course of this Agreement or as
a result of WWW's use of the TrueLink(TM) equipment. WWW agrees to assist
IDC in perfecting such rights and warrants that its employees and/or
subcontractors are contractually and legally required to assign such rights
to or on behalf of WWW. IDC agrees to grant back to WWW personally, a
perpetual, royalty-free, non-exclusive, non-transferable, non-assignable
license to use INTELLECTUAL PROPERTY RIGHTS only on the TrueLink(TM)
equipment under this Agreement.
9.0 - COMPLIANCE WITH LAWS Compliance. Both parties herein shall comply
with all applicable federal, provincial and local laws, ordinances and
regulations in connections with their performance of this Agreement.
Licenses, Permits etc. All licenses, permits, government approvals,
customs duties, and any other documents or payments, which are required to
be executed and paid in connection with the lawful use, shipment to, and
installation of the TrueLink(TM) equipment at the Selected Site, shall be
obtained and paid for by WWW.
WWW acknowledges, represents and warrants that they have obtained all
usual and necessary licenses to operate the TrueLink(TM) equipment which
specifically include frequency and bandwidth allocation and usage permits
and/or licenses with respect to the TrueLink(TM) equipment.
10.0 - TIME TO CURE Upon the occurrence of a Material Breach, the non-
breaching party shall send Notice to the breaching party, stating with
particularity the nature of such breach and, if appropriate, a suggested
remedy. In the event that the breaching party fails to correct or cure any
material breach under this Agreement within sixty (60) calendar days after
receipt by the other party of a written notice from such party specifying
such breach, the non-breaching party shall send Notice to the breaching
party of that parties failure to cure, stating such reasons with
particularity. As a result thereof the non-breaching party, may at its
discretion, deem the contract to be breached and entitled to and pursue
relief as provided for in this Agreement.
11.0 - ASSIGNMENT OR SALE Acquisition, Assignment or Sale. With the
exception of a contemplated Initial Public Offering by WWW, WWW shall not
sell, assign, delegate, or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of IDC. Any such
attempted sale, assignment, delegation or transfer in contravention of the
terms of this Agreement shall be void and of no effect.
12.0 TERMINATION Rights of Parties on Termination. The following
provisions shall apply on the termination of this Agreement.
All indebtedness of WWW to IDC shall become immediately due and
payable without further notice or demand, which is hereby expressly waived,
and IDC shall be entitled to reimbursement for any reasonable attorneys'
fees that it may incur in collecting or enforcing payment of such
obligations.
WWW shall remove from its property and immediately discontinue all
use, directly or indirectly, of trademarks, designs, and markings owned or
controlled, now or hereafter, by IDC, or of any word, title, expression,
trademark, design, or marking that, in the opinion of IDC, is confusingly
similar thereto.
IDC shall have no obligation to repurchase or to credit WWW for its
TrueLink(TM) equipment and/or inventory of the TrueLink(TM) equipment at the
time of termination of this Agreement. IDC may, at its sole option and
without any obligation whatsoever to do so, repurchase from WWW, without
WWW's consent, the TrueLink(TM) equipment at IDC's price to WWW, less costs
and expenses incurred by IDC to that point.
If the period of non-performance or delay due to Force Majeure shall
exceed ninety (90) days from the giving of notice pursuant to this Agreement
then both parties shall meet to consult and agree on the necessary
arrangements for the further implementation of the Contract. In case no
mutual agreement is reached, then either party may, following the giving of
thirty (30) days notice to the other, terminate the Contract. In the event
of such termination, IDC shall be paid by WWW for all work undertaken. In
addition, the settlement of any other expense that IDC may have incurred in
relation to termination of this Contract by WWW pursuant to this Clause
shall be subject to negotiation by the parties. In case the parties fail to
come to an agreement, the matter shall be settled through arbitration as
provided for in this Agreement.
Termination for WWW's Default
IDC may, upon fifteen (15) days prior written notice, terminate this
Contract if WWW:
(a) should be adjudged bankrupt;
(b) should make a general assignment for the benefit of its creditors;
(c) should have a receiver appointed on account of its insolvency; or
(d) should have an attachment made upon its properties and it is not
vacated or the claim otherwise secured within fifteen (15) days
thereafter.
If WWW cures or commences cure, and diligently prosecutes the same to
completion, a default during the fifteen (15) day notice period, IDC shall
not terminate this Contract.
If this Contract is terminated as provided for immediately above, IDC
may require WWW to accept title and delivery by IDC in the manner and to the
place directed by WWW (i) any completed supplies, and (ii) such
manufacturing materials as IDC has specifically acquired for the performance
of this Contract; and WWW shall, upon direction of IDC protect and preserve
property in the possession of WWW in which IDC has an interest.
13.0 - NOTICES All notices under this Agreement shall be in writing and
given by express mail service with copy by facsimile addressed to the
parties at the addresses immediately below or to such other address of which
either party may advise the other in writing. Notices will be deemed given
when sent.
If to IDC:
InterDigital Communications Corporation
781 Third Avenue
King of Prussia, Pennsylvania 19406
Attention: General Counsel
Phone: (610) 878-7800
Fax: (610) 992-9432
With a copy to:
Technical Liaison
If to WWW:
Attention: ______________________________
Phone: (____) ________________
Fax: (____) __________________
With a copy to:
Technical Liaison
14.0 - CHANGE OF PRODUCT IDC shall have the absolute right without advance
notice to WWW to change or modify any TrueLink(TM) equipment in a manner
which does not change its functionality or performance characteristics. IDC
shall have the absolute right at any time upon ninety (90) days prior notice
to WWW to cease to manufacture and sell or otherwise supersede the
TrueLink(TM) equipment. IDC shall have no liability to WWW with respect to
any such change.
15.0 - NEW OR ENHANCED PRODUCT It is understood that WWW intends to
ultimately expand its service it provides to its subscribers to MMDS
services including POTS and ISDN services as described in SCHEDULE - A. As
such migration becomes available from IDC, IDC agrees to offer and provide
WWW the ability and assistance to migrate from the capabilities of the
"TrueLink(TM) equipment" supplied hereunder to such MMDS capable equipment,
upon reasonable terms and conditions.
16.0 - TRADEMARK AND PUBLIC DISCLOSURES WWW agrees to keep the information
contained in this Agreement, and the negotiations preceding it in
confidence.
However, it is understood that WWW may wish to disclose and/or make
public milestones and the like pursuant to this Agreement and to that end,
WWW agrees to provide IDC with a copy of any proposed disclosure and to
allow IDC to make modifications thereto in order to ensure the accuracy
thereof, including correct and appropriate use of IDC trademarks or
TrueLink(TM) descriptions, specifications or performance. WWW agrees to
provide such proposed disclosure in sufficient time to allow IDC to do such.
WWW agrees that both during the term of this Agreement and after
termination thereof, WWW will not use any trademark, service mark or trade
name of IDC or terms similar thereto in connection with the business of WWW
without the review and written approval of IDC.
17.0 - MISCELLANEOUS The headings in the Agreement are included for
convenience only and shall not be construed as limiting in any manner.
Failure to enforce any of the terms and conditions of this Agreement
shall not be deemed a waiver of any rights and privileges that a party has
under this Agreement. In order for there to be a waiver of any term or
condition of this Agreement, such waiver must be in writing and signed by
the party making the waiver.
This Agreement shall be fairly interpreted in accordance with its
terms and conditions and the terms and conditions shall not be strictly
interpreted in favor of or against either party. The use of the singular or
plural form shall include the other form and the use of the masculine,
feminine or neuter gender shall include the other.
Either party shall be excused from delays in performing or from its
failure to perform hereunder to the extent that such delays or failures
result from causes beyond the reasonable control of such party; provided
that, in order to be excused from delay or failure to perform, such party
must act diligently to remedy the cause of such delay or failure.
IDC does not grant to WWW any right or license under any INTELLECTUAL
PROPERTY RIGHTS other than those rights specifically set forth herein.
In the event of a conflict of terms as between this Agreement proper
and either SCHEDULE-A or SCHEDULE-B, the terms of this Agreement proper
shall prevail.
18.0 - ARBITRATION All issues concerning the interpretation, validity and
performance of this Agreement for non-Patent or non-Copyright-related rights
shall be governed by the laws of the Commonwealth of Pennsylvania as if this
Agreement was negotiated, executed and fully performed entirely within the
State.
IDC and WWW waive court litigation of disputes arising under this
Agreement, and agree to resolve any such disputes through binding
arbitration in King of Prussia, Pennsylvania. Both parties wish to complete
arbitration proceedings as expeditiously and as cost effectively as
possible, preferably within one hundred twenty days from initiation of
proceedings. The arbitration shall be governed by the United States
Arbitration Act, 9 U.S.C. Sections 1-16, and any award arising from the
arbitration can be enforced in a court of law having subject matter and
personal jurisdiction.
Arbitration shall be conducted in accordance with the Center for
Public Resources Rules for Non-Administered Arbitration of Business Disputes
by a sole arbitrator. The arbitrator shall render his or her decision
strictly in accordance with the terms and provisions of this Agreement. The
arbitrator should have no authorization to award any punitive or
consequential damages. The arbitrator shall render a decision by stating
reasons therefor in a written opinion. Arbitration shall be a private
proceeding between the parties and it shall have no collateral estoppel
effect with respect to non-parties.
The arbitrator shall be an attorney having at least ten (10) years
experience in relevant wireless local loop technology. If the parties
cannot agree on an arbitrator, then one will be picked by the Center for
Public Resources from its list of arbitrators having such qualifications who
are not retained or regularly employed by IDC or WWW, or any of the
respective parties competitors.
If any accounting is ordered after a determination of liability, then
such accounting shall be conducted by a Certified Public Accountant mutually
agreeable to the parties, or if there is no agreement, one appointed by the
arbitrator, whose CPA firm is not engaged by IDC or WWW, or any of the
respective parties competitors.
The costs payable to the Center for Public Resources, the arbitrator
or the Certified Public Accountant immediately above shall be equally shared
by IDC and WWW.
IN WITNESS WHEREOF, and intending to be legally bound, the undersigned
parties have duly executed this Agreement under seal effective as of the
date last written below.
ATTEST: INTERDIGITAL COMMUNICATIONS
CORPORATION
By: /s/ William A. Doyle
------------------------------------
William A. Doyle Date August 12, 1997
President
ATTEST: WORLDWIDE WIRELESS INC.
By: /s/ Scot A. Wendel
____________________________________
Scott A. Wendel Date August 12, 1997
Chief Operating Officer
SCHEDULE - A
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TECHNICAL SPECIFICATION
-----------------------
Initial frequency contemplated at being 1.8gHz;
Equipment Provided:
The Central Office Terminal (COT) and Radio Distribution Unit (RDU)
equipment connect the TrueLink(TM) Radio Carrier Station (RCS) to the phone
network switch. The RCSs are the "base stations". The Fixed Subscriber
Units (FSUs) are installed at the customers premises. The Local Craft
Terminals (LCTs) and Field Measurement Units (FMUs) are used for
installation and system control.
The site, when completely built-out will consist of 1 RDU, 17 COTs, 5 LCTs,
2 RCSs, 500 FSUs and 2 FMUs.
Time Frame:
The equipment, and more importantly the system's operation, will be
installed and made operational on a phased schedule. During this period
service may be interrupted as RDU, COT and RCS capacity is increased and /
or modified. The final schedule will depend on material availability,
availability of installation personnel and system performance. Phases shall
not be initiated until the installation and verification of system
performance is verified for the previous stage.
The installation of the base station equipment will start on 31 January,
1998. By 28 February, 1998, the RDU, a COT for 30 users, an RCS, and 2 test
FSUs will be installed and operating. It is anticipated the first
residential user will be making phone calls by mid March.
Starting 3 March, 1998, the initial 10 FSUs will be installed and brought
on-line in sequential order over a period of approximately 2 weeks. The
installation schedule will then proceed as follows:
From 17 Mar. to 28 Mar. 10 additional users will be brought on-line, 2 at
a time.
From 31 Mar. to 11 Apr. 15 additional users, up to 3 at a time.
From 14 Apr. to 30 Apr. 20 additional users, up to 4 at a time.
From 1 May to 30 May 30 additional users, up to 5 at a time.
From 2 Jun. on 50 to 100 additional users per month, depending on
installers available and deployment area.
Provided Services / Capabilities
32 Kbit/s ADPCM - Voice call - with dial and D(TM)F capability.
64 Kbit/s PCM channel for up to 14.4 Kbit/s FAX and 28.8 Kbit/s modem data.
All equipment is supplied for indoor installation and use only.
Network interface will be 2 wire analog provided by conversion of V5.1
interface with COT. RCS Antenna height will be the maximum that WWW can
provide. The RCS antenna will be omni-directional.
The FSU antenna height shall not extend beyond the roof line, except
where an existing TV antenna mast can be used, unless permission of the
owner is granted. There may be situations where a "line of sight" antenna
installation aimed toward the base station will not be possible without
extending above the roof line.
The FSU will require 120 VAC, 60 Hz at a maximum of 30 watts. IDC
will assume no responsibility for installation or upgrading of customer's
electrical service or outlets.
Miscellaneous
Subsequent to Beta-site installation, the capability for POTS (as that
term is used in the industry), and thereafter ISDN data capability, upon
terms and conditions as agreed upon at that time between the parties.
SCHEDULE - B
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TERMS AND CONDITIONS OF SALE
----------------------------
THIS CONTRACT AND THESE TERMS AND CONDITIONS, WHEN ACCEPTED BY THE
PURCHASER EXPLICITLY, BY ACCEPTANCE OF GOODS OR OTHERWISE, SHALL CONSTITUTE
AGREEMENT BETWEEN VENDOR AND PURCHASER, AND SHALL BE GOVERNED BY AND
CONSTRUED ACCORDING TO THE INTERNAL LAWS OF THE COMMONWEALTH OF
PENNSYLVANIA, AND THE UNITED STATES OF AMERICA.
1. Delivery and Delay. All quoted delivery dates and/or periods are
approximate. The delivery periods shall commence when Vendor shall have
acknowledged receipt of complete specifications and/or applicable documents
required to effect shipment, such as letter of credit, import license,
exchange permit, shipping instructions, etc. Risk of loss or damage in
transit shall pass to the purchaser at the point where Vendor has fulfilled
its obligations under the shipping term specified in this contract. To the
extent legal title to the goods shall be deemed by law to pass to the
purchaser at the time of delivery to the freight forwarder and prior to
performance of all of the purchaser's obligations hereunder, equitable title
shall remain in Vendor until payment in full of the purchase price, and the
purchaser shall grant, and by acceptance of the goods shall be deemed to
have granted, to Vendor a first security interest and charge in all goods to
secure payment of the purchase price and other amounts owing by the
purchaser and performance of all the purchaser's obligations under this
contract of sale. Vendor may reclaim any goods delivered to the purchaser
or in transit if the purchaser shall fail to make payments when due.
Vendor reserves the right to make delivery in installments, unless
otherwise expressly stipulated in this contract; and all such installments,
when separately invoiced, shall be paid for when due per invoice, without
regard to subsequent deliveries. Delay in delivery of any installment shall
not relieve the purchaser of its obligations to accept remaining deliveries.
Vendor shall not be liable for any damage as a result of any delay due
to any cause beyond Vendor's reasonable control, including but not limited
to any act of God, act of purchaser, embargo or other governmental act,
regulation or request, fire, accident, strike, slow-down, war, riot, delay
in transportation, delayed delivery by suppliers, and inability to obtain
necessary labor and materials. In the event of any such delay, the date of
delivery shall be extended for a period equal to the time lost by reason of
the delay.
Claims for shortages or other errors must be made in writing to Vendor
within thirty (30) days after receipt of shipment, and failure to give such
notice shall constitute unqualified acceptance and a waiver of all such
claims by the purchaser.
2. Descriptive Literature and Substitutes. Catalogues, product
brochures, photographs, and other illustrations are a general representation
of the products offered but shall not be taken as precise and shall not form
part of this contract.
3. Storage. If the products are not shipped within fifteen (15) days
after notification to the purchaser that they are ready for shipping, for
any reason beyond Vendor's reasonable control, including the purchaser's
failure to give shipping instructions, Vendor may store such products at the
purchaser's risk in a warehouse or yard or on Vendor's premises: and the
purchaser shall pay handling, transportation, and storage charges at the
prevailing commercial rates on submission of invoices therefore.
4. Price and Payment. The prices for the goods covered by this offer
are Vendor's prices for such goods and/or services with (i) the exclusive
Warranty of repair or replacement of defective parts as found in Paragraph 7
(Warranties) below, and (ii) the Exclusion of Consequential Damages and
Disclaimer of Liability, as found in Paragraph 8 (Exclusion ...) below,
including the disclaimer of negligence, strict liability, and other tort
liability, enforceable against the purchaser. If the purchaser desires for
Vendor to provide a greater or additional warranty and/or to be liable for
some or all of the matters disclaimed in Paragraph 8 (Exclusion...), and/or
to be liable for consequential or incidental damages, then the purchaser
must notify Vendor before the purchaser accepts (or is deemed to accept)
this offer pursuant to Paragraph 1 (Delivery and Delay), in which event
Vendor will amend this offer to reflect higher sales prices reasonably
compensating Vendor for assuming that additional exposure. In the absence of
such a notification, by accepting this offer the purchaser is accepting such
limitations and disclaimers in exchange for the lower prices set forth
herein.
All prices listed are payable in United States Dollars. Except as
otherwise set forth in this offer, payment shall be by letter of credit. The
purchaser shall, no later than sixty (60) days prior to each scheduled
shipment date, cause to be issued for Vendor's benefit an irrevocable letter
of credit in U.S. Dollars in the full amount of the purchase price, plus
prepaid freight and insurance, such letter of credit (a) to be issued or
confirmed by a prime U.S. bank acceptable to Vendor, (b) to be subject to
and governed by the Uniform Customs and Practice for Documentary Credits
(ICC Publication No. 400) and to be otherwise acceptable in form and
substance to Vendor, and (c) to provide for payment to Vendor of the full
amount of the purchase price plus prepaid freight in U.S. Dollars, on
presentation by Vendor of sight drafts, Vendor's invoice, and such other
documents as shall be required by the letter of credit at Vendor's U.S.
bank. All banking and other charges for such letter of credit are for the
account of the purchaser.
Payment shall be "net 30"; terms of payment are cash in full no later
than thirty (30) days from the date of shipment, without discount. Payments
not made when due shall bear interest at the rate of one and one-half
percent (1 1/2%) per month from date of shipment until paid in full. If,
during the period of performance of an order, the financial condition of the
purchaser is determined by Vendor not to justify the terms of payment
specified, Vendor may demand full or partial payment in advance before
proceeding with the work, or satisfactory security or guarantees that
invoices will be promptly paid when due, or, at its option without prejudice
to other lawful remedies, may defer delivery or cancel this contract. If
delivery is deferred, the goods may be stored as provided herein and Vendor
may submit a new estimate of costs for completion based on prevailing
conditions. If the purchaser defaults on any payment when due, or in the
event any voluntary or involuntary bankruptcy or insolvency proceedings
involving the purchaser are initiated by or against the purchaser, then the
whole contract price shall immediately become due and payable on demand, or
Vendor, at its option without prejudice to its other lawful remedies, may
defer delivery or cancel this contract.
5. Taxes and Other Charges. Any manufacturer's tax, occupation tax,
use tax, sales tax, excise tax, value-added tax, duty, custom, inspection or
testing fee, or any other tax, fee, or charge of any nature whatsoever
imposed by any governmental authority on or measured by the transaction
between Vendor and the purchaser shall be paid by the purchaser in addition
to the prices quoted or invoiced. In the event the Vendor is required to
pay any such tax, fee, or charge, the purchaser shall reimburse Vendor
therefor.
6. Shipment. Except as otherwise stated hereon, prices are F.O.B.
King of Prussia, Pennsylvania USA and any charges Vendor may be required to
pay or collect with respect to the sale, purchase, delivery, storage,
processing, use, consumption, or transportation of the goods shall be for
the purchaser's account.
Method and route of shipment will be at the discretion of Vendor
unless the purchaser shall specify otherwise, and any additional expense of
the method or route of shipment specified by the purchaser shall be borne by
the purchaser.
7. Warranties. Vendor warrants equipment and parts manufactured by
it and supplied hereunder to be free from defects in materials and
workmanship (or if software, free from material defects) for a period of
twelve (12) months from date of shipment. If within such period any such
equipment or parts or software shall be proved to Vendor's satisfaction to
be so defective, such equipment or parts or software shall be repaired or
replaced at Vendor's option. Vendor's warranty obligations shall be limited
to such repair or replacement, shall be purchaser's exclusive remedy
hereunder, and shall be conditioned on Vendor's receiving written notice of
any alleged defect within ten (10) days after its discovery and, at Vendor's
option, return of such items to Vendor's factory, Duty Paid. This warranty
shall not apply to equipment or parts or software not manufactured by Vendor
or to equipment or parts or software which shall have been subject to
modification, negligence, accident, damage by circumstances beyond Vendor's
control, or improper operation, maintenance, modification, or storage, or to
other than normal use or service. With respect to equipment and parts and
software not manufactured by Vendor, the warranty obligations of Vendor
shall in all respect conform and be limited to the warranty extended to
Vendor by its supplier.
THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER
EXPRESS AND IMPLIED WARRANTIES WHATSOEVER, INCLUDING BUT NOT LIMITED TO
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
This exclusive remedy shall not be deemed to have failed its essential
purpose so long as the Vendor is willing and able to replace defective
products or issue a credit to the purchaser within a reasonable time after
the purchaser proves to Vendor that a defect is involved.
The warranties in this Clause are personal to Purchaser and are non-
assignable and non-transferable. Further, these warranties do not apply to
defects not caused by Vendor (such as acts of God, abuse, misuse, vandalism
or improper installation or operation, unusual physical or electrical
stress, accident, neglect, or any Force Majeure as defined herein), nor to
Equipment or Materials which have been altered or improperly repaired by a
party other than Vendor or persons expressly authorized to alter or repair
Equipment or Materials on behalf of Vendor. These warranties also exclude
any problems directly or indirectly related to interfaces, interconnections
or protocols not supplied by Vendor.
8. Exclusion of Consequential Damages and Disclaimer of Liability.
Vendor's liability with respect to breaches of warranty shall be limited as
provided in Paragraph 7 (Warranties) hereof. With respect to other breaches
of this contract, Vendor's liability shall in no event exceed the contract
price. VENDOR SHALL NOT BE SUBJECT TO AND DISCLAIMS: (1) ANY OTHER
OBLIGATIONS OR LIABILITIES ARISING OUT OF BREACH OF CONTRACT OR OF WARRANTY;
(2) ANY OBLIGATIONS WHATSOEVER ARISING FROM TORT CLAIMS (INCLUDING
NEGLIGENCE AND STRICT LIABILITY) OR ARISING UNDER OTHER THEORIES OF LAW WITH
RESPECT TO PRODUCTS SOLD OR SERVICES RENDERED BY VENDOR, OR ANY
UNDERTAKINGS, ACTS, OR OMISSIONS RELATING THERETO; AND (3) ALL
CONSEQUENTIAL, INCIDENTAL, AND CONTINGENT DAMAGES WHATSOEVER. Without
limiting the generality of the foregoing, Vendor specifically disclaims any
liability for penalties (including administrative penalties), special or
punitive damages, damages for lost profits or revenues, loss of use of
products or any associated equipment, cost of capital, facilities, or
services, downtime, shut-down, or slowdown costs, spoilage of material, or
for any other types of economic loss.
9. Technical and Other Information. Any sketches, models, samples,
or designs submitted by Vendor shall remain the property of Vendor and shall
be treated as confidential information unless the Vendor has in writing
indicated a contrary intent. No use or disclosure of such sketches, models,
and samples, or any design or production process or techniques revealed
thereby, shall be made without the express written consent of the Vendor.
CONFIDENTIAL INFORMATION shall mean information and data of a
confidential nature, including but not limited to proprietary, technical,
developmental, marketing, sales, operating, performance, cost, know-how,
business and process information, computer programming techniques, and all
record-bearing media containing or disclosing such information and
techniques which is disclosed pursuant to this AGREEMENT. CONFIDENTIAL
INFORMATION shall include any samples, models or prototypes, or parts
thereof. CONFIDENTIAL INFORMATION includes all work product generated
during the course of performance of this Agreement.
TRADE SECRET shall mean information, including a formula, pattern,
compilation, program, device, method, technique, or process, that: (i)
derives independent economic value, actual or potential, from not being
generally known to, and not being readily ascertainable by proper means by
other persons who can obtain economic value from its disclosure or use, and
(ii) is the subject of efforts that are reasonable under the circumstances
to maintain its secrecy.
All CONFIDENTIAL INFORMATION delivered pursuant to this Agreement
shall, if in written or physical form, be marked "Confidential" or similarly
labeled by Vendor before being turned over to Purchaser; shall not be
distributed, disclosed, or disseminated in any way or form by Purchaser
outside its business organization (with the exception that such
distribution, disclosure or dissemination to an associated company is
acceptable hereunder, provided the associated company agrees in writing to
Vendor to be bound by the terms and conditions of this Agreement), without
the prior written consent of Vendor; shall be maintained in confidence, and
may only be disclosed to those employees of Purchaser which are informed of
the confidentiality obligations of this Agreement and who have a need to
know the CONFIDENTIAL INFORMATION for the purposes described above; and
shall not be used by Purchaser for any purposes, except as expressly stated
herein, without the express prior written permission of Vendor.
The obligations of the immediately preceding paragraphs shall not
apply, however, to any information which: is already in the public domain at
the time of disclosure or later becomes available to the public through no
breach of this Agreement by Purchaser; was, as between Purchaser and Vendor,
lawfully in Purchaser's possession prior to receipt from Vendor without
obligation of confidentiality; or is received by Purchaser independently
from a third party free to disclose lawfully such information to the
Purchaser without any obligation of confidentiality.
Unless mutually agreed otherwise in writing, Purchaser's obligations
hereunder with respect to CONFIDENTIAL INFORMATION which do not constitute
TRADE SECRETS shall terminate ten (10) years from the date of the receipt
thereof by the Purchaser. Confidentiality obligations for TRADE SECRETS
shall survive for the life of the Trade Secret. Confidentiality obligations
shall survive termination of this Agreement.
10. Purchaser's Property. Any property of the purchaser placed in
Vendor's custody for performance of this contract is not covered by
insurance, and no risk is assumed by Vendor in the event of loss or damage
to such property by fire, water, burglary, theft, civil disorder, or any
accident beyond the reasonable control of the Vendor.
11. Force Majeure. Vendor shall not be liable for any loss or damage
as a result of Vendor's delay in or failure of delivery due to (i) any cause
beyond Vendor's reasonable control; (ii) any act of God, act of the
purchaser, embargo or other governmental act, authority, regulation or
request, fire, theft, accident, strike, slowdown, or other labor
disturbance, war, riot, delay in transportation; (iii) inability to obtain
necessary labor, materials, components, supplies, or facilities; or (v)
inability to obtain necessary export licenses, import licenses, exchange
permits, etc. Should any of the aforementioned events of force majeure
occur, Vendor, at its option, may cancel the purchaser's order with respect
to any undelivered goods or extend the delivery date for a period equal to
the time lost because of delay. Notice of such election shall be given
promptly to the purchaser. In the event Vendor elects to so cancel the
order, Vendor shall be released of and from all liability for failure to
deliver the goods, including, but not limited to, any and all claims on
behalf of the purchaser for lost profits, or for any other claim of any
nature which the purchaser may have. If shipping or progress of the work is
delayed or interrupted by the purchaser, directly or indirectly, the
purchaser shall pay Vendor for all addition charges resulting therefrom.
12. Separability. If any provisions of these Terms and Conditions of
Sale supplemented as provided herein shall be deemed illegal or
unenforceable, such illegality or unenforceability shall not effect the
validity and enforceability of any legal and enforceable provisions hereof
which shall be construed as if such illegal and unenforceable provision or
provisions had not been inserted herein, unless such illegality or
unenforceability shall destroy the underlying business purpose of these
Terms and Conditions.
13. Software License. All software products used in, for or in
connection with the equipment, parts, subsystems or derivatives thereof (the
"System") purchased hereunder, in whatever form, including, without
limitation, source code, object code, microcode and mask works, including
any computer programs and any documentation relating to or describing such
software, such as, but not limited to logic manuals and flow charts provided
by Vendor, including instructions for use of the software and formulation of
theory upon which the software is based, is furnished to the purchaser only
under a personal, non-exclusive, non-transferable license solely for
purchaser's own use only on the System equipment furnished to purchaser by
Vendor.
The software may not be copied or modified, in whole or in part, for
any purpose whatsoever. The software may not be reversed, compiled,
disassembled or otherwise reverse engineered in whole or in part.
No title to or ownership of the software or any of its parts is
transferred to purchaser or end user. Title to all patents, copyrights,
trade secrets and any other applicable rights shall remain in Vendor.
The term of the paid up license for the software is from the date
first above written to such time as purchaser or end user discontinues use
of the applicable software on the System Equipment described herein.
Notwithstanding the foregoing, Vendor shall have the right to
terminate purchaser's or end user's license and retake possession of the
System if purchaser or end user fails to pay any and all required license
fees, any other payments due to Vendor by purchaser or end user for
purchase, lease or use of the System, or otherwise fails to comply with
these terms and conditions.
14. Hold Harmless and Limitation of Liability. All persons furnished
or utilized by Purchaser pursuant to this Agreement shall be considered
solely Purchaser's employees or agents and Purchaser shall be responsible
for compliance with all laws, rules, and regulations including, but not
limited to, employment, labor, working conditions, payment of wages, and
payment of taxes, such as unemployment, social security and other payroll
taxes, including applicable contributions from such persons when required by
law.
Purchaser shall save, indemnify and hold harmless Vendor its officers,
directors, employees, successors and assigns, against all losses, damages,
or expenses of whatever form or nature, including attorneys' fees and other
costs of legal defense (for litigation or out of court settlements), whether
direct or indirect, that they, or any of them, may sustain or incur as a
result of any acts or omissions of Purchaser or any of its directors,
officers, employees, or agents, including, but not limited to, (1) breach of
any of the provisions of this Agreement, (2) negligence or other tortious
conduct, (3) representations or statements not specifically authorized by
the Vendor herein or otherwise in writing, (4) violation by Purchaser (or
any of its directors, officers, employees or agents) of any applicable law,
regulation, or order in the United States.
15. INSURANCE OF THE PROJECT
Vendor shall insure the Equipment and Materials for each System, on a
System by System basis, against all risks until Hand Over covering such
System. Coverage shall include transit insurance, warehouse and storage,
inland transportation, builders all-risk and theft, all without gaps or
exceptions, except to the extent such coverage may be commercially
unavailable or inapplicable. Such insurance shall be procured by Vendor,
upon terms and conditions consistent with sound commercial practice and
shall insure the full value of the Equipment and Materials used for
completion of the System so insured.
Any indemnification received under such insurance shall be used to
replace or repair any material damage or any loss of the Equipment and
Materials so insured or shall be used to reimburse for the replacement or
repair of such goods. Insurance shall include the cost of removal,
demolition, reinstallation, replacement or re-erection (collectively
"rework") of the Equipment and Materials and cover all services for such
rework to the extent to that Vendor is responsible for such rework under
this Contract.