<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K/A
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported):
April 16, 1996
---------------------------------------------
OMNIPOINT CORPORATION
(Exact Name of Registrant as Specified in Charter)
Delaware 0-27442 04-2969720
---------------- --------------- -------------------
(State of Incorporation) (Commission File Number) (IRS Employer
Identification No.)
2000 North 14th Street, Suite 500
Arlington, VA 22201
----------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
(703) 522-7778
-------------------------------
(Registrant's telephone number)
<PAGE>
Item 5. Other Events.
------------
On April 16, 1996, Omnipoint Corporation (the "Company") and Ericsson
Inc. ("Ericsson") entered into definitive agreements governing (i) the licensing
and OEM arrangement relating to the Company's proprietary IS-661 technology,
(ii) the purchase by the Company's affiliates, including Omnipoint
Communications Inc., of PCS 1900 handsets, (iii) the sale by Ericsson of
infrastructure equipment, subject to completion of vendor financing agreements,
for which the parties have entered into a non-binding commitment letter
regarding the Company's New York MTA network, and (iv) cooperation on marketing,
standards and technical activities. Also in April 1996, the Company and Orbitel
Mobile Communications Limited ("Orbitel"), a wholly-owned subsidiary of
Ericsson, have entered into a non-binding memorandum of understanding involving
Orbitel's development of IS-661 and dual mode IS-661/PCS 1900 handsets. Over
the next five years, Ericsson could receive more than $350 million of network
equipment and services as well as $100 million for purchases of IS-661 and PCS
1900 handsets.
The agreements are for a combination of IS-661 and PCS 1900
technologies, which both utilize GSM-based network architecture. The initial
system configuration includes mobile switching centers, base station controllers
and radio base station equipment as well as implementation and support services.
<TABLE>
<CAPTION>
Item 7. Exhibits
Exhibit No. Description
----------- -----------
<S> <C>
1* Acquisition Agreement for Ericsson CMS 40 Personal
Communications Systems (PCS) Infrastructure
Equipment, dated as of April 16, 1996, by and
between Ericsson Inc. and Omnipoint Communications
Inc.
2* Acquisition Supply and License Agreement for
Omnipoint Personal Communications Systems (PCS)
Infrastructure Products, dated as of April 16,
1996, by and between Ericsson Inc. and Omnipoint
Corporation
3* Agreement for Purchase and Sale of Ericsson Inc.
Mobile Terminal Units, dated as of April 16, 1996,
by and between Ericsson Inc. and Omnipoint
Communications Inc.
4* Memorandum of Understanding, dated April 2, 1996,
by and between Omnipoint Corporation and Orbitel
Mobile Communications Ltd.
</TABLE>
* Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's Application Requesting
Confidential Treatment under Rule 24b-2 of the Securities Exchange Act of 1934,
as amended, filed on June 27, 1996.
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<PAGE>
SIGNATURES
----------
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Date: June 27, 1996 OMNIPOINT CORPORATION
By: /s/ Edwin M. Martin, Jr.
----------------------------------------
Edwin M. Martin, Jr., Secretary
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<PAGE>
OMNIPOINT CORPORATION
FORM 8-K
EXHIBIT INDEX
<TABLE>
<CAPTION>
Sequentially
Exhibit No. Description Numbered Pages
- ----------- ----------- --------------
<S> <C> <C>
1* Acquisition Agreement for Ericsson
CMS 40 Personal Communications
Systems (PCS) Infrastructure
Equipment, dated as of April 16,
1996, by and between Ericsson Inc.
and Omnipoint Communications Inc.
2* Acquisition Supply and License
Agreement for Omnipoint Personal
Communications Systems (PCS)
Infrastructure Products, dated as
of April 16, 1996, by and between
Ericsson Inc. and Omnipoint
Corporation
3* Agreement for Purchase and Sale of
Ericsson Inc. Mobile Terminal
Units, dated as of April 16, 1996,
by and between Ericsson Inc. and
Omnipoint Communications Inc.
4* Memorandum of Understanding, dated
April 2, 1996, by and between
Omnipoint Corporation and Orbitel
Mobile Communications Ltd.
</TABLE>
* Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's Application Requesting
Confidential Treatment under Rule 24b-2 of the Securities Exchange Act of 1934,
as amended, filed on June 27, 1996.
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<PAGE>
Exhibit 1
FINAL
EXECUTION COPY
CONTRACT NO.: 9107
------------------
ACQUISITION AGREEMENT
FOR
ERICSSON CMS 40 PERSONAL COMMUNICATION SYSTEMS (PCS)
INFRASTRUCTURE EQUIPMENT
BY AND BETWEEN
ERICSSON INC.
AND
OMNIPOINT COMMUNICATIONS INC.
<PAGE>
CONFIDENTIAL
TABLE OF CONTENTS
Article 1 DEFINITIONS.....................................1
Article 2 SCOPE OF AGREEMENT..............................9
Article 3 TERM OF AGREEMENT...............................9
Article 4 PRICES..........................................9
Article 5 TERMS OF PAYMENT...............................12
Article 6 ORDERS AND SCHEDULING..........................16
Article 7 ORDER CANCELLATION AND MODIFICATION............19
Article 8 INSTALLATION...................................19
Article 9 ACCEPTANCE TESTING AND ACCEPTANCE..............20
Article 10 DELAY..........................................22
Article 11 BUYER'S RESPONSIBILITIES.......................25
Article 12 SELLER'S RESPONSIBILITIES......................30
Article 13 WARRANTIES.....................................36
Article 14 SYSTEM SUPPORT SERVICES........................48
Article 15 CONTINUITY OF EXPANSION FUNCTIONALITY..........48
Article 16 AMENDMENTS.....................................48
Article 17 TITLE AND RISK OF LOSS.........................48
Article 18 INSURANCE......................................49
Article 19 SOFTWARE; CONFIDENTIAL INFORMATION.............50
Article 20 TAXES..........................................52
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<PAGE>
Article 21 INDEMNIFICATION AND LIMITATION OF LIABILITY....53
Article 22 INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT......54
Article 23 DISPUTES.......................................55
Article 24 TERMINATION AND DEFAULT........................57
Article 25 ADVERTISING....................................60
Article 26 LATE PAYMENTS..................................60
Article 27 COVENANT NOT TO RECRUIT........................61
Article 28 ASSIGNMENT AND EQUITABLE REMEDIES..............61
Article 29 NOTICES........................................62
Article 30 AUTHORITY AND COMPLIANCE WITH LAWS.............62
Article 31 HEADINGS AND PLURALS...........................63
Article 32 GOVERNING LAW; SEVERABILITY....................63
Article 33 NO WAIVER......................................63
Article 34 ENTIRETY OF AGREEMENT; NO ORAL CHANGES.........63
Article 35 ATTACHMENTS AND INCORPORATION..................64
Article 36 COUNTERPARTS...................................65
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<PAGE>
FINAL
EXECUTION COPY
--------------
ACQUISITION AGREEMENT
FOR
ERICSSON CMS 40 PERSONAL COMMUNICATION SYSTEM (PCS)
INFRASTRUCTURE EQUIPMENT
THIS ACQUISITION AGREEMENT (the "Agreement"), is made and effective as of the
16th day of April, 1996, by and between Omnipoint Communications Inc., a
Delaware corporation, with its principal place of business in Mountain Lakes,
New Jersey ("OCI" or "Buyer") and Ericsson Inc., a Delaware corporation, with
its principal place of business in Richardson, Texas, acting through its Radio
Systems Division ("Ericsson"), and this Agreement shall permit the addition of
such of Buyer's Affiliates (as defined below) as may from time to time desire to
make purchases of Ericsson equipment and services pursuant to the terms and
conditions set forth herein.
ARTICLE 1 DEFINITIONS
-----------
As used herein, the following definitions apply:
AMPS means Advanced Mobile Phone Service (i.e., the analog transmission
technique used in the United States for 800 MHz cellular service.)
ASIC means Application Specific Integrated Circuit.
Applicable Purchases has the meaning ascribed at Section 11.9.1.
BSC means Base Station Controller.
BTA means a Basic Trading Area, a geographic area designated by the
Federal Communications Commission for the purpose of granting
authorizations to construct and operate PCS networks.
BTS or Base Station means or refers to a single physical location and
enclosures thereof of one or more base transceiver stations in the
System.
Base Station Configuration means the Equipment, Software and Installation
at a Base Station required to operate and control a particular base
transceiver station at a Base Station.
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CONFIDENTIAL
Base Station Configuration Engineering means the engineering required, on
a site-specific basis, to establish the Base Station Configuration
Installation specifications, including, but not limited to: preparing
Equipment lists, Equipment layout drawings, Equipment labels, cable
ladder layout drawings, and "as-built" drawings and documentation. Base
Station Configuration Engineering also includes the design for DC power
distribution for Base Station Configurations.
Base Station Facilities Engineering means the engineering required to
design a specific Base Station, including, but not limited to: property
survey, soil report, Base Station layout, drawings and specifications for
the construction of the Base Station, shelters, towers, generators,
grounding analysis, and all other items required to make the Base Station
functional. Base Station Facilities Engineering does not include Base
Station Configuration Engineering.
Buyer's Affiliate(s) means any partnership, corporation or other entity
in which Buyer owns a twenty percent (20%) or greater equity interest or
any entity controlling, controlled by or under common control with Buyer
after applying the attribution rules of Section 318 of the Code which
operates or is authorized to operate a Cellular System or PCS system in
North America including the Caribbean Islands. Affiliate shall also refer
to any corporation, partnership or other entity which has a marketing
affiliation agreement with Buyer to market its Cellular System or PCS
system under the brand name used by Buyer to market its Cellular Systems
and/or PCS systems in North America including the Caribbean Islands
("Marketing Affiliates"). Among other things such marketing affiliation
agreement shall require a Marketing Affiliate to use Buyer's billing
system and have a roaming agreement with Buyer.
CODEC means Coder-Decoder.
Change of Control means and shall be deemed to have ensued upon the first
to occur of the following events:
(A) any person becomes the beneficial owner, directly or
indirectly, of securities of a company representing 50% or more of the
combined voting power of the company's then outstanding voting securities
and such person has the ability to elect a majority of the members of the
company's Board of Directors, if such ownership is not in place on the
date of grant;
(B) any person becomes the beneficial owner, directly or
indirectly, of securities of the company sufficient to elect a majority
of the members of the Board of Directors of the company; or
(C) the sale of all or substantially all the assets of the
company, or a merger, consolidation, or similar transaction of the
company in which the company is not the surviving entity or the company's
stockholders immediately prior
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CONFIDENTIAL
*CONFIDENTIAL INFORMATION;
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
to such transaction hold less than 50% of the voting securities of the
surviving entity.
A Change in Control shall not include either of the following
events:
(A) a transaction, the sole purpose of which is to change the
state of the company's incorporation; or
(B) a transaction, the result of which is to sell all or
substantially all of the assets of the company to another entity (the
"surviving entity"); provided that the surviving entity is owned directly
or indirectly by the company's stockholders immediately following such
transaction in substantially the same proportions as their ownership of
the company's voting capital stock immediately preceding such
transaction.
Civil Work means the labor and materials necessary in the performance of
demolition, construction and renovation work (e.g., roads, grading,
fencing, structural improvements, etc.) at a Network Element location and
at each Base Station to assure that each Base Station and Network Element
location is ready for Installation of the Equipment.
Civil Work Supervision means the supervision of Civil Work.
Code means the Internal Revenue Code of 1986, as amended.
Commercial Service means the commercial use of the System, or a portion
thereof, exclusive of operation for purposes of conducting Acceptance
Tests, where (i) for the New York BTA more than*
paying customers are receiving service on the System in question and (ii)
for all markets excluding the New York BTA such number of paying
customers receiving service on the System in question shall be* of
the POPs for such market or* whichever is greater, and that
revenue is expected to be received from such customers . Commercial
service shall exclude the traditional "friendly user" pre-commercial test
operation, even though revenue may be received from the "friendly users".
Confidential Matters means all information about the business and
financial matters (including costs, profits and plans for future
development, training materials, documentation, methods of operation and
marketing concepts) and any other proprietary information relating to a
party hereto or its affiliates and their respective operations,
businesses and financial affairs, that is obtained by the other party
hereto as a result of the working relationship between the parties hereto
with respect to the subject matter hereof, whether obtained prior to or
after the date hereof; provided, however, that Confidential Matters shall
not include information that (a) is or becomes generally available to the
public other than as the result of wrongful disclosure by the recipient
hereunder, its affiliates or their respective representatives, or (b) was
available to the recipient or its affiliates or their respective
representatives on a
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<PAGE>
CONFIDENTIAL
nonconfidential basis prior to disclosure hereunder, or (c) is
independently developed by the recipient hereunder, or (d) becomes
rightfully available to the recipient from a third party that is under no
obligation to maintain such information as confidential.
Critical Fault has the meaning ascribed in Section 13.13.1.
Deliverables has the meaning ascribed in Section 2.3.
Documentation means all the documentation (including all books, manuals,
memoranda and other written materials) needed to understand and operate
the System, and all components thereof, described and set forth in
Attachment E. All Documentation provided to Buyer and its Affiliates
shall be printed in English and provided in CD ROM format to the extent
such documentation represents Seller's standard documentation or to the
extent such documentation is presently available in CD ROM format. For
those documentation items that are not presently available in CD ROM
format, Ericsson shall use commercially reasonable efforts to provide
such items in CD ROM format.
EI&T means Engineering, Installation and Testing.
Electronic Deliverables has the meaning ascribed at Section 20.1.
Equipment means equipment specified in Attachment A to this Agreement,
all Network Elements and such other PCS equipment as Seller may hereafter
make available to Buyer and which Buyer hereafter orders from Seller
under this Agreement. Equipment does not include subscriber equipment,
which shall mean subscriber handsets, mounting hardware, test equipment,
antennas and similar subscriber equipment, or any equipment purchased by
Buyer from another supplier.
Expansions means Equipment, Software, any Installation or other services
purchased under this Agreement for addition to or improvement of the
Initial Configuration.
Facilities Preparation Services means Civil Work, Civil Work Supervision,
Ground Plan Architectural Work, Structural Architectural Work, and
Utilities Work.
Features means new Software functionality or substantial performance
improvement that is made available to all users for the then-current
Software release. Features are licensed to Buyer individually and may be
subject to an additional license fee. Once licensed they become a part of
the Software.
GSM means Global System for Mobile communications.
Ground Plan Architectural Work means the preparation of architectural
drawings necessary to obtain zoning permits and conditional use permits.
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<PAGE>
CONFIDENTIAL
Handset means a mobile station intended to be used while in motion or
during halts at unspecified points and conforming to PCS 1900 standard,
IS-661 standards, or both as the context requires. Handsets include
handheld portable units and units installed in vehicles.
Handset Agreement means that separate agreement by and between Buyer and
Seller governing the supply and purchase of PCS 1900 Handsets.
Initial Configuration means for each BTA or MTA in which a new Network
Element is installed, the portion of the System intended by the parties
to be constructed and installed and optimized as a unit, as described and
set forth in Attachment A. Commercial service in the BTA or MTA will be
initiated using the Initial Configuration. Initial Configuration does not
include Expansions thereto (e.g., additional Base Station Configurations
or additional Network Element Configurations added to a previously
constructed system).
Installation means the performance and supervision by Seller of all
installation purchased from and performed by Seller of Equipment and
Software and as described in Article 8.
MSC means Mobile Switching Center.
MTA means a Major Trading Area, a geographic area designated by the
Federal Communications Commission for the purpose of granting
authorizations to construct and operate PCS networks, or where Buyer is
awarded an authorization by an equivalent authority of the Mexican
government (or the appropriate subdivision thereof), MTA shall be deemed
to mean the analogous area authorized to Buyer; and Seller shall sell
Deliverables to Buyer hereunder for use in Mexico, with such Deliverables
being trans-shipped or otherwise delivered into Mexico.
MTBF means Mean Time Between Failures.
MTTR means Mean Time To Repair.
Material Default means the occurrence of any of the following events: (i)
Seller's failure to deliver Deliverables as ordered by Buyer after being
given reasonable opportunity to cure such condition pursuant to the terms
of this Agreement or (ii) any such breach or default of the terms and
conditions of this Agreement that either directly or indirectly result in
a materially adverse impact on Buyer.
Network Element means the Equipment and Software purchased from SELLER
required to perform switching, transmission or network node functions for
a System (e.g., Authentication Center ("AUC"), BSC, Equipment Identity
Register ("EIR"), Messaging System ("MXE"), Mobile Switching
Center/Visitor Location Register ("MSC/VLR"), Mobile Intelligent Network
("MIN"), Service Signaling Point ("SSP"),
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<PAGE>
CONFIDENTIAL
Home Location Register ("HLR"), Service Control Point ("SCP") and MSC).
For purposes of this Agreement, the term Network Element includes Base
Stations.
Network Element Configuration means the Equipment, Software, Installation
and other applicable services rendered by Seller hereunder at a Network
Element Location required to perform the switching or network node
functions as referenced in Article 1.16 above; provided, however, that a
Network Element expansion shall not be deemed a Network Element
Configuration unless such expansion includes, or is a major modification
of, a central processing unit (e.g. APZ 212, BSC, HLR, MSC/VLR, etc.).
Network Element Configuration Engineering means the engineering required
to establish Network Element Installation specifications, including;
preparing Equipment lists, Equipment layout drawings, Equipment labels,
cable tray layout drawings, and "as-built" drawings and Documentation.
Network Element Configuration Engineering also includes the design for DC
power distribution for Network Elements.
Network Element Facilities Engineering means the engineering required to
design a specific Network Element Location, including; property survey,
soil report, building layout, drawings and specifications for the
construction of the building, towers, generators, and all other items
required to make the Network Element facility or facilities functional.
Network Element Facilities Engineering does not include Network Element
Configuration Engineering.
Network Element Location means generally the physical location and
enclosures thereof for a Network Element.
Nortel shall mean Northern Telecom, Ltd.
OAM&P means Operations and Maintenance Procedures.
OEM means Original Equipment Manufacturer.
Omnipoint means Omnipoint Corporation, a Delaware corporation with its
executive offices located at 1365 Garden of the Gods Road, Colorado
Springs, CO 80907
Operations Support System ("OSS") means a combination of hardware and
software platforms which provide tools for operating, maintaining,
analyzing and provisioning the System, as further described in Attachment
B.
Orbitel means Orbitel Mobile Communications, Ltd.
Orbitel Handset Supply Agreement means that certain and separate
agreement by and between Buyer and Orbitel governing the supply and
purchase of dual mode PCS1900/IS-661 Handsets and single mode IS-661
Handsets.
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CONFIDENTIAL
PCS means Personal Communications Systems
Primarily means (i) greater than 50% or (ii) the party who is more than
50% responsible, as the context requires.
Professional Services means those services offered by Seller relating to
System design, construction, enhancement and optimization as described
and set forth in Attachment C and as priced in Attachment A.
Punch List means that list prepared in conjunction with the Acceptance
Tests and included in the Acceptance Certificate pursuant to Article 9,
which contains one or more items which have not been fully completed by
Seller as of Acceptance of the System or any System segment.
Purchase Order has the meaning ascribed at Section 6.6.
RBS or Radio Base Station means a Base Station.
Section means when used without any other reference, sections, including
subsections, within this Agreement
Seller means Ericsson and any Affiliate of Ericsson from which Buyer or
any of Buyer's Affiliates purchase equipment pursuant to the terms of
this Agreement.
Service Affecting Fault has the meaning ascribed at Section 13.13.6.
Site Acquisition Services means the services described and set forth in
Attachment C, which are necessary for identifying, acquiring, and making
ready the System sites.
Software means (a) all computer software furnished hereunder by Seller to
Buyer for use primarily in conjunction with the Equipment including, but
not limited to, computer programs contained on a magnetic or optical
storage medium, in a semiconductor device, on a disk or in another memory
device or system memory consisting of (i) hard-wired logic instructions
which manipulate data in central processors, control input-output
operations, and error diagnostic and recovery routines, (ii) instruction
sequences in machine-readable code that control call processing,
peripheral equipment and administration and maintenance functions; (b)
Software Enhancements, Software Features and Software Updates furnished
by Seller to Purchaser hereunder; and (c) Documentation furnished
hereunder for use and maintenance of the Software.
Software Enhancements means modifications or improvements made to the
Software that improve performance or capacity of the Software, and such
Software Enhancements may also include bug fixes.
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<PAGE>
CONFIDENTIAL
Software Features means distinct programs that constitute additional
functions to the Software.
Software Updates means periodic updates to the Software issued by Seller
to customers under Warranty and Software Maintenance obligations to
correct defects in the Software.
Specifications means the specifications and performance standards of the
System as set forth on Seller's Product Marketing Reference Document
current at the time of the order.
Structural Architectural Work means the preparation of all architectural
drawings and blueprints relating to the structural specifications for the
Network Element Locations or Base Stations.
System Support Services means those services offered by Seller for
maintenance of Equipment and Software pursuant to Article 14, which are
described and set forth in Attachment D and as priced in Attachment A.
System means the Initial Configuration and all Expansions thereto
purchased by Buyer from Seller pursuant to this Agreement, including all
Equipment, Software, Installation and other services purchased from
Seller by Buyer hereunder relating to the System.
TRAU or Transcoder Rate Adaptation Unit means a device that modulates and
demodulates a user's voice or data transmissions and multiplexes or de-
multiplexes the 16 kb/s intermediate data rate used for transmission
between a BSC and BTS to and from the standard 64 kb/s data rate used in
the external network and certain Network Elements within the PCS 1900
system.
TRU or Transmitter Receiver Unit means a transmitting and receiving
module intended to be installed as a separate module into a BTS.
Technical Education means the training courses offered by Seller as set
forth in Attachment Q.
Utilities Work means the installation of electric and telephone utilities
at the Network Element Locations and Base Stations.
VOCODER means Voice Coder.
-8-
<PAGE>
CONFIDENTIAL
*CONFIDENTIAL INFORMATION;
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
ARTICLE 2 SCOPE OF AGREEMENT
2.1 INITIAL CONFIGURATION. UPON THE TERMS AND CONDITIONS HEREIN SET FORTH,
BUYER HEREBY AGREES TO PURCHASE FROM SELLER, AND SELLER HEREBY AGREES TO
SELL TO BUYER FOR INSTALLATION AND OPERATION IN THE NEW YORK MTA MARKETS,
THE INITIAL CONFIGURATION OF THE SYSTEM, INCLUDING THE EQUIPMENT,
SOFTWARE, INSTALLATION AND ANY DOCUMENTATION ORDERED THEREFOR, OSS, AS
WELL AS ANY OTHER SERVICES DESCRIBED HEREIN THAT MAY BE ORDERED BY BUYER
AS PART OF THE INITIAL CONFIGURATION.
2.2 ADDITIONAL GOODS AND SERVICES. IN ACCORDANCE WITH THE PROCEDURES SET
FORTH IN ARTICLE 6, BUYER MAY ORDER ADDITIONAL EQUIPMENT AND SOFTWARE FOR
EXPANSIONS TO THE INITIAL CONFIGURATION, AND TO THE EXTENT AVAILABLE
UNDER THIS AGREEMENT, HANDSETS, AS WELL AS BASE STATION FACILITIES
ENGINEERING, FACILITIES PREPARATION SERVICES, NETWORK ELEMENT FACILITIES
ENGINEERING, SITE ACQUISITION SERVICES, SYSTEM SUPPORT SERVICES,
PROFESSIONAL SERVICES, AND SUCH OTHER SERVICES AS SELLER MAY FROM TIME TO
TIME OFFER TO ITS CUSTOMERS.
2.3 DELIVERABLES DEFINED. THE GOODS AND SERVICES DESCRIBED IN SECTIONS 2.1
AND 2.2 ARE SOMETIMES HEREIN REFERRED TO AS "DELIVERABLES."
ARTICLE 3 TERM OF AGREEMENT
This Agreement shall commence on the date first written above and continue until
the fifth (5th) anniversary thereof (hereinafter, the "Term") unless terminated
on an earlier date as provided herein, except as to those provisions that, by
their express terms, survive such termination.
ARTICLE 4 PRICES
4.1 UNIT PRICES AND APPLICABLE VOLUME DISCOUNTS. The eqipmennt list,
associated unit prices and applicable volume discounts are set forth in
Attachment A. The equipment list set forth in Attachment A constitutes a
------------ ------------
complete identification of all seller equipment offered under Seller's
PCS 1900 product line. The prices set forth in Attachment A and the
------------
volume discounts to be included therein are calculated on the basis that
Buyer will receive a * "initial discount" on all of its purchases
hereunder coupled with additional volume discounts of * on all
Equipment purchases and *
on all Software purchases.
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<PAGE>
*CONFIDENTIAL INFORMATION; CONFIDENTIAL
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
4.2 PRICE VARIATION. Subject to the conditions of Aection 4.8 below, the
prices for Deliverables shown in Attachment A-1 are firm, fixed prices,
--------------
except where a material price adjustment is necessary and permitted in
accordance with the terms and criteria of the variation formula as set
forth in Attachment A-1. Prices for Deliverables or other goods and
--------------
services not set forth in Attachment A-1, if not otherwise established in
--------------
this Agreement, shall, subject to the terms and conditions of Section
4.8, *
4.3 PRICES INCLUDE DELIVERY. The unit prices of the Equipment are
delivered prices, with the Equipment delivered by common carrier to a
Network Element Location, a central storage site, or Base Station
specified by Buyer. The Installation prices include (i) delivery charges
by common carrier from the Network Element Location or central storage
site to the site of Installation, and (ii) Base Station Configuration
Engineering and Network Element Configuration Engineering, as applicable.
Seller's unit prices also include any warehousing, staging or other
storage fees necessary to seller's performance, however, installation
charges specifically exclude any costs for cranes or helicopters utilized
to install any of Equipment to be installed pursuant to this Agreement.
Buyer understands that costs for cranes and helicopters shall be borne by
it, provided that Seller obtains Buyer's prior written consent to utilize
such installation methods. In the event a crane, helicopter or other
such extraordinary means are required to install equipment, Seller agrees
that Seller's actual costs for such services will be passed on directly
to Buyer with no additional markup thereon.
4.4 PRICES FOR OPERATION SUPPORT SYSTEM. THE PRICES FOR THE SERVICE PORTION
OF OSS ARE SET FORTH IN ATTACHMENT A.
------------
4.5 PRICES FOR OTHER SERVICES. The prices of System Support Services,
including Professional Services, and Documentation are set forth in
Attachment A. The prices for Technical Education courses are set forth
------------
in Attachment A.
------------
4.6 CERTAIN ENGINEERING SERVICES. Network Element Configuration Engineering
and Installation must be purchased for Network Element Configurations
based on Seller's AXE architecture ordered hereunder. The prices of Base
Station Facilities
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<PAGE>
*CONFIDENTIAL INFORMATION; CONFIDENTIAL
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
Engineering, Base Station Configuration Engineering and Network Element
Facilities Engineering shall be determined by Seller on a quote basis, if
such services are purchased from Seller.
4.7 FACILITIES PREPARATION AND SITE ACQUISITION SERVICES. The price for any
Facilities Preparation Services and Site Acquisition Services shall be
determined in accordance with the procedure set forth in Section 6.4.
4.8 *
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<PAGE>
*CONFIDENTIAL INFORMATION; CONFIDENTIAL
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
ARTICLE 5 TERMS OF PAYMENT
5.1 MONTHLY INVOICES. Seller shall invoice Buyer no more than twice per month
for all amounts due hereunder. Upon request by Buyer, the parties will
work in good faith to develop an electronic invoicing and payment
management system upon a schedule to which the parties mutually agree,
which system may include disk copies of invoices or electronic
transmission of data. Unless specified otherwise herein, all invoices
submitted by Seller to Buyer pursuant to this Agreement shall be due and
payable *
5.2 *
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<PAGE>
CONFIDENTIAL
*CONFIDENTIAL INFORMATION;
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
*
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<PAGE>
*CONFIDENTIAL INFORMATION; CONFIDENTIAL
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
5.3 INITIAL CONFIGURATION. Buyer shall pay for the Initial Configuration
Equipment and Software as follows:
5.3.1 *
5.3.2 ACCEPTANCE. Where Installation is performed by Seller, an
additional *
of the total price (with the aggregate amount invoiced
under Section 5.3.1 and 5.3.2 being equal to *
including *
may be invoiced upon Acceptance of an Initial
Configuration. Should installation of any BTSs in an Initial
Configuration be performed by Buyer, the remaining *
of the total price for such BTSs shall be due thirty
(30) days after receipt of such BTSs by Buyer.
5.3.3 PUNCH LIST BALANCE. On a site by site basis, the
* unpaid balance of the price will be due after Seller has
cleared and Buyer approved final disposition of all Punch List
items, including receipt by Buyer of "as-built" drawings.
Notwithstanding anything to the contrary contained in the previous
sentence, if the average time required by Seller to clear open
Punch List items * the
amount of purchase price to which Seller shall be entitled to
invoice Buyer for Seller installed items under Section 5.3.2
shall be reduced to *
* of the total price, and the amount of the total price to which
buyer shall be entitled to hold back until final clearance of open
Punch List items shall *
For purposes of determining the average length of time required by
Seller to clear open Punch List items, Seller shall be entitled *
5.4 EQUIPMENT EXPANSIONS. On a Network Element by Network Element basis,
Buyer shall pay for any Equipment ordered for Expansions as provided
below.
5.4.1 SELLER TO INSTALL. * may be
invoiced upon completion of Installation.
5.4.2 BALANCE. The balance of the price, including charges for
Installation, will be
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* due *
5.4.3 BUYER TO INSTALL. One hundred percent (100%) may be invoiced upon
delivery to Buyer's premises.
5.5 INSTALLATION AND SOFTWARE EXPANSION. Seller shall invoice the price in
full of all Software and Installation ordered for Expansions upon
Acceptance.
5.6 OPERATIONS SUPPORT SYSTEM SERVICES. Seller shall invoice for Operations
Support System Services in accordance with the terms set forth in
Attachment A.
5.7 TECHNICAL EDUCATION. Seller shall invoice the price in full of each
Technical Education course upon completion. Notwithstanding anything to
the contrary contained in the foregoing sentence, Seller shall provide
certain Technical Education courses to Buyer * in
accordance with the provisions of Section 12.24.
5.8 SYSTEM SUPPORT SERVICES. Seller's System Support Services, as described
in Attachment D and as priced in Attachment A-1, shall be purchased in
one-year service intervals and shall be invoiced on a month-to-month
basis in equal amounts of one-twelfth (1/12th) of the annual price, with
such invoicing to occur in advance of each month's performance.
5.9 ENGINEERING. If installation is not purchased from Seller, Seller shall
invoice Base Station Configuration Engineering and Network Element
Facilities Engineering upon completion, or monthly if applicable.
5.10 OTHER SERVICES. Seller shall invoice any Facilities Preparation Services,
Professional Services and Site Acquisition Services upon completion, or
monthly if applicable.
5.11 SOFTWARE AND HARDWARE STABILITY. Seller shall demonstrate the stability
of its software and hardware as provided below.
5.11.1 INITIAL TEST IN NEW YORK BTA. Seller shall demonstrate a period
of service where there has been no Critical Fault in the New York
BTA system (the "Stability Test"). The Stability Test shall
commence when Seller shall certify to Buyer that the System is
ready to commence stability testing, which date shall not be
earlier than the completion of Acceptance Testing for the System.
The Stability Test shall be completed upon the last to occur of
the following two events:
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5.11.2 NO PUNCH LIST PAYMENT. Until completion of the Stability Test
described in Section 5.11.1, for the purpose of determining
whether payment is due to Seller, completion of the Punch List for
the New York BTA System shall be deemed not to have occurred for
any portion of the System, notwithstanding Seller's clearance of
the Punch List items in whole or in part. For purposes of this
Section 5.11.2 and 5.3.3, Seller shall be entitled to receive
payment from Buyer on the later of *
5.11.3 SUBSEQUENT MAJOR SOFTWARE RELEASES. Seller shall also be required
to conduct a Stability Test as provided in Section 5.11.1 for
every major Software release occurring subsequent to the execution
of this Agreement. Notwithstanding any other provision of this
Agreement to the contrary, Seller shall not be entitled to any
payment for the major Software release until completion of the
Stability Test. For purposes of this Section 5.11.3 Seller shall
be entitled to receive payment from Buyer on the later of *
5.11.4 AMENDMENT BY MUTUAL CONSENT Buyer and Seller agree that this
Section 5.11 may be modified or amended by the mutual consent of
the parties.
ARTICLE 6 ORDERS AND SCHEDULING
6.1 SCHEDULES. Attachment H sets forth all final engineering and preparatory
details, and the time schedule therefor, necessary for delivery and
installation of the Initial Configuration. Buyer and Seller shall be
responsible for the successful completion of their respective items set
forth in Attachment F.
6.2 INITIAL CONFIGURATION. Buyer and Seller will cooperate to define the
specific Deliverables needed for each initial Configuration to be
supplied under this Agreement. Initial Configurations shall include BSCs
but may or may not include MSCs. Buyer and Seller shall cooperate to
ensure that IS-661 technology-based PCS equipment can be integrated in
Initial Configurations, as specifically agreed by the parties on an
initial configuration by Initial Configuration basis. Seller shall
prepare a bill of materials, at a level of detail reasonably acceptable
to Buyer, for each such Initial Configuration. The agreed plans shall
include documents corresponding to separate Attachments F and H. Buyer
and Seller shall be responsible for the timely completion of their
responsibilities as defined in such documents.
6.3 ENGINEERING SERVICES INFORMATION. When Buyer desires to place an order
with Seller for System Support Services or for Base Station Facilities
Engineering, Base Station
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Configuration, or Network Element Facilities Engineering, Buyer shall
submit to Seller all information in Buyer's possession or any information
requested by Seller reasonably necessary for Seller to complete the
order.
6.4 FACILITIES PREPARATION SERVICES, SITE ACQUISITION SERVICES AND OTHER
SERVICES. Facility Preparation Services, Site Acquisition Services and
other services shall be administered as provided in this Section 6.4.
6.4.1 PROPOSAL FOR SERVICE. When Buyer desires to place an order for any
Facilities Preparation Services, Site Acquisition Services or
other services, Buyer shall submit to Seller all information in
Buyer's possession or any information requested by Seller
reasonably necessary for the furnishing by Seller of a proposal.
Seller proposals generated for each such request shall include the
complete purchase price of such service, including, without
limitation, all costs of equipment, materials and supplies, labor,
transportation and other related costs, terms of payment, and
completion dates for such services. In the case of any such
service performed in accordance with this Section 6.4.1, Seller
shall be responsible for the execution, delivery, and timely
performance of such service.
6.4.2 REJECTION OF SELLER OFFER. If Buyer rejects a proposal for
services submitted by Seller under Section 6.4.1 above, such
rejection not to be unreasonable, Buyer may elect
have such services performed *
6.4.3 SELLER NOT RESPONSIBLE FOR BUYER-PERFORMED SERVICES. In the case
of any services performed pursuant to clauses (i) and (ii) of
Section 6.4.2, Seller shall have no responsibility whatsoever for
such services, notwithstanding that such services may have been
performed in accordance with suggestions from Seller.
6.4.4 THIRD PARTY SUBCONTRACTOR. In the case of any services performed
in accordance with clause (iii) of Section 6.4.2, *
* shall have mutually agreed to such rates of markup as set
forth in Attachment A.
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6.4.5 OTHER SERVICES. Seller agrees that, from time to time as
requested by Buyer, Seller shall provide Buyer with certain
ancillary services. Seller agrees that, when such services are
rendered by third parties, Seller shall not impose any markup on
such third party services, except to the extent Seller adds value
to such services and Buyer has agreed to the amount of any
markup. Buyer and Seller acknowledge and agree that Seller takes
no responsibility for the performance by third parties of the
services to be rendered by such third parties under this Section
6.4.5. Seller hereby expressly disclaims, and is absolved from
providing, any and all warranties whatsoever on the services
obtained from third parties and managed by Seller under this
Section 6.4.5.
6.5 METHOD OF ACCEPTING SERVICES PROPOSALS. Proposals submitted by Seller
pursuant to Sections 6.3 and 6.4, may be accepted by Buyer by issuance of
Buyer's order referencing or incorporating the proposal. Orders issued
pursuant to this Agreement shall be governed by and performed in accordance
with the terms and conditions of this Agreement, unless the parties
mutually agree otherwise in accordance with Article 16.
6.6 ORDERS FOR INITIAL CONFIGURATION AND EXPANSIONS. At any time during the
term of this Agreement, Buyer may at its option direct the Seller to supply
any part of the Deliverables pursuant to one or more purchase orders issued
periodically by Buyer in accordance with this Agreement ("Purchase Order").
The Purchase Orders shall be confirmed by Seller in accordance with Section
6.7 of this Agreement. The Purchase Order shall be priced using the unit
prices in Attachment A-1.
6.7 CONFIRMATION OF PURCHASE ORDERS. Buyer may issue Purchase Orders and
Seller shall within * following receipt of such confirm Purchase
Orders provided that the Purchase Order is in accordance with the terms and
conditions of this Agreement or amendment thereto, including the schedules
established in Attachments H and E hereto. In the event that Buyer's
Purchase Order falls outside these requirements, Buyer and Seller shall
work together in good faith to solve Buyer's delivery needs. A Purchase
Order may not change any of the terms and conditions of this Agreement or
its schedules or attachments.
6.8 ORDERING INTERVALS AND CONFIRMATION. The intervals for ordering
Expansion Deliverables shall conform to those set forth in Attachment S
hereto. The ordering interval for an Initial Configuration shall be as
set forth in Attachment H. For systems not identified at the time of
execution of this Agreement, the parties shall negotiate a schedule for
ordering similar to Attachment H.
6.9 MODIFICATIONS TO PURCHASE ORDER. Buyer retains the right to modify or
cancel, in whole or in part, any Purchase Order subject to the terms and
conditions of Article 7 and Attachment L hereto.
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ARTICLE 7 ORDER CANCELLATION AND MODIFICATION
Subject to the terms and conditions set forth in Attachment L hereto, and except
as provided below, *
In the event of a cancellation permitted hereunder, Buyer
shall pay to Seller order cancellation charges in accordance with
Attachment L. *
* where any of the Equipment or Software specified in such order is
subsequently re-directed to a different location of Buyer's choice and where the
re-direction delivery is accomplished * Buyer agrees to give Seller
* advance notice of any such re-direction. Seller shall use
commercially reasonable efforts to minimize or eliminate order cancellation
charges consistent with Attachment L.
Buyer agrees that it will not cancel a Purchase Order for the Initial
Configuration and Network Element Configuration Engineering and Installation
services, but Buyer shall have the right to modify such Purchase Orders to
reflect those normal changes that result from the practicalities of site
leasing, zoning, permitting, marketing and competitive circumstances, etc.
Seller shall be entitled to claim additional compensation from Buyer for such
modifications as provided in Attachment L.
ARTICLE 8 INSTALLATION
This Article 8 applies to Installations performed by Seller, directly by
Seller's personnel or through a third party contractor selected by Seller.
8.1 SELLER TO MEET SCHEDULES. Provided that Buyer has met all of its
obligations under this Agreement, Seller shall install the Equipment at the
sites to be selected by Buyer (or the sites agreed to by Buyer in the event
that Seller has been engaged to provide Site Acquisition Services) so as to
be ready for Acceptance Tests with regard to any Initial Configuration in
accordance with the procedures set forth in the applicable provisions of
Seller's then current Installation manual(s) and the time schedule set
forth in Attachment H.
8.2 NON-INTERFERENCE. Seller shall install the System so as to cause no
unreasonable interference with or obstruction to lands and thoroughfares or
rights of way on or near which the Installation work may be performed.
Seller shall exercise every reasonable safeguard to avoid damage to
existing facilities, and if repairs or new construction are required in
order to replace facilities damaged by Seller due to its carelessness or
negligence, such repairs or new construction shall be at Seller's own
expense. Seller agrees that it shall comply with any commercially
reasonable instruction or request of Buyer respecting the Installation of
the System so long as compliance with Buyer's instructions or requests will
not cause Seller to violate and federal, state or local law, ordinance or
regulation.
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8.3 INSTALLATION QUALITY. Seller's installation services shall be performed
in a workmanlike fashion and shall comply with Seller's written
installation guidelines. Seller's installation services shall include
complete testing of all equipment, and Seller shall provide Buyer with
complete documentation of the testing procedures and protocols followed,
as set forth in Attachment E, and the results of the testing thereof.
Seller shall be responsible for removing all packing and shipping
material and shall leave the premises in as clean and neat a fashion as
it was originally found.
8.4 FIREPROOF OR FIRE RESISTANT MATERIAL. All cables, connectors, harnesses,
strapping material and other similar equipment and supplies used in
installing Deliverables shall comply with all federal, state and local
laws, regulations and codes. Where Seller has fireproof or fire
retardent materials available in its normal stock of materials, Seller
shall use such materials regardless of whether required by law,
regulation or code.
8.5 SECURITY OF INSTALLATION SITE. Seller shall comply with Buyer's
reasonable security rules. Seller shall ensure that premises are locked
and secured from unauthorized access when Seller leaves the site. If
Seller detects, through its normal Installation activities, a security
risk or unauthorized access risk at a site, Seller shall promptly notify
Buyer and cooperate with Buyer in securing the site. Seller acknowledges
and agrees that, with respect to Buyer's MSCs, Buyer may have stricter
security requirements than the foregoing requirements to which Seller
shall adhere. Seller agrees that no unauthorized individuals will be
permitted access to an MSC.
8.6 INSTALLATION TESTING COMPLIANCE WITH INDUSTRY STANDARDS. In addition to
any and all post-installation of the System, Seller shall perform advance
testing of all components contained in a system. All testing procedures
and protocols employed by Seller shall comply with all applicable
industry standards and shall include such tests as are normally applied
in the industry (e.g., Swept SWR checks will be performed on all antennas
and transmission lines installed by Seller with a System).
ARTICLE 9 ACCEPTANCE TESTING AND ACCEPTANCE
9.1 ACCEPTANCE TESTING. Set forth in Attachment J are descriptions of various
testing procedures ("Acceptance Tests") to be conducted, and Deliverables
related thereto (e.g., test results, inventory reports, Acceptance
Certificates, regarding Installation of an Initial Configuration
Equipment and Software (and, as applicable, regarding Installation of
Equipment and Software added to an Initial Configuration to demonstrate
that the Equipment and Software installed by Seller will operate
substantially in accordance with the Specifications)). Attachment J
includes procedures for testing/verifying: (i) Network Element
Installation and operation; (ii) Network Element integration; (iii)
traffic network verification; and (iv) overall System operation, as each
of the foregoing may be applicable.
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9.2 ADMINISTRATION. The following procedures shall govern the administration
of Acceptance Tests.
9.2.1 NOTICE OF TEST. Seller shall notify Buyer as soon as it knows,
but at least * the date on which Acceptance Tests shall
be conducted. At the first practicable date thereafter, each of
Seller and Buyer shall approve in writing on any pretest forms
provided as part of the particular Acceptance Test to be
conducted. If Buyer or its nominee does not attend the Acceptance
Tests, Seller shall proceed with the tests and immediately
forward the test results to Buyer.
9.2.2 SELLER TO CORRECT PROBLEMS. If, during the performance of
Acceptance Tests by Seller, the Equipment, Software or the
System, as a whole, comprising the Initial Configuration does not
fulfill the requirements of the Acceptance Tests, Seller shall,
at its expense, correct the defects as soon as commercially
practicable. The Acceptance Tests (or such portion of them as
necessary) shall be recommenced immediately after such correction
in accordance with this Article 9.
9.2.3 CERTIFICATION. Upon the successful completion of any Acceptance
Tests conducted by Seller, Seller shall submit to Buyer an
Acceptance Certificate certifying that: (i) the Acceptance Tests
have been successfully completed, (ii) the Equipment and
Software, to that stage completed, have been installed in
accordance with the requirements of this Agreement, subject to
resolution of Punch List items, and (iii) that the System (or
System segment) is ready to be placed in Commercial Service.
Buyer shall acknowledge same by signing the Acceptance
Certificate prior to the System (or System segment) being placed
in Commercial Service. At such time, Punch List items will be
documented and the Equipment, Software or Installation covered by
such certificate shall be deemed "Accepted," (i.e., "Acceptance"
shall have occurred). Items may be added to the Punch List by
Buyer * Defects in components
arising after Acceptance that are covered by Section 13.1 (c)
shall not be considered Punch List items.
9.2.4 DELAY OF ACCEPTANCE. Only service-affecting deficiencies arising
out of Acceptance Testing in accordance with Attachment J, in
conjunction with this Article 9, shall be grounds for delay of
Acceptance of the System.
9.2.5 COMMERCIAL SERVICE DEEMED ACCEPTANCE. Buyer's use of any part of
the Initial Configuration Equipment in Commercial Service shall
constitute an Acceptance of such part of the Equipment, and the
date upon which such Commercial Service first occurs shall be the
Acceptance date. Seller agrees that Buyer shall be permitted to
conduct "friendly user" pre-commercial test
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operations, even though Buyer may be receiving revenue from such
"friendly users." Accordingly, Acceptance shall not be deemed to
have occurred under this Section 9.2.5 until more than the number
of paying customers specified in the definition of Commercial
Service are receiving service on the System.
9.2.6 EXPANSION ORDERS ACCEPTED ON DELIVERY. Equipment ordered for
Expansions to the Initial Configuration shall, for purposes of
Articles 13 and 17, be deemed to be Accepted by Buyer at time of
delivery.
9.2.7 PUNCH LIST CLEARANCE. The Punch List for each site shall be
cleared on a Network Element by Network Element basis only when
every item set forth on the Punch List, has been cleared or
delivered to Buyer's satisfaction. The parties explicitly agree
that, before the Punch List is considered resolved, all
documentation and drawings required under this Agreement,
including "as-built" drawings, regardless of whether specifically
listed on the Punch List, must be supplied to Buyer. Upon
resolution of Punch List items by Seller, Seller shall submit to
Buyer, and Buyer shall sign, a certificate verifying that no
additional Punch List items remain unresolved. The date upon
which Buyer signs such certificate shall be the Punch List
Clearance Date. With respect to the Initial Configuration, the
items set forth on the Punch List shall be cleared on a site by
site basis. *
ARTICLE 10 DELAY
10.1 DELAY BY SELLER. In the event of delay by Seller, the parties shall have
the following rights and responsibilities.
10.1.1 LIQUIDATED DAMAGES. If, due solely to the fault or negligence of
Seller, Installation and Acceptance of any Initial Configuration
does not occur upon the schedule set forth in Attachment H, Buyer
shall be entitled to, and Seller shall pay to Buyer, damages in
accordance with this Section 10.1.
10.1.2 COMPUTATION OF DAMAGES. The parties agree that damages for delay
are difficult to calculate accurately and, therefore, agree to
fix as liquidated damages, and not as a penalty, an amount
determined according to the table below.
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The amount of liquidated damages due and payable hereunder shall
be calculated by multiplying the applicable liquidated damages
percentage, for each week of delay or fraction of a week,
determined in accordance with the table above, by the aggregate
of (i) the total price, on a Network Element by Network Element
basis and calculated in accordance with Attachment A, of the
Equipment and Software, which comprise or are to comprise an
Initial Configuration and which has not completed Acceptance
Testing upon the date scheduled as set forth on Attachment H as a
result of such delay ("Delayed Equipment or Software"). *
If any portion of the Initial Configuration has
passed Acceptance Testing, the liquidated damages percentage
shall be applied against the full price of all Delayed Equipment
and/or Software and any portion of the balance of the Initial
Configuration that may not be used because of Seller's delay.
Subject to Section 24.1.1, liquidated damages under this Section
10.1 shall be Buyer's exclusive remedy for any delay by Seller in
delivering and installing the Initial Configuration. Liquidated
Damages shall accrue under this Agreement until such time as the
delay period has ended, and the Liquidated Damages that may
accrue hereunder shall be limited in amount to *
of cost of the aggregate Network Element associated with, and
resulting in, such delay *
Notwithstanding anything to the contrary contained elsewhere in
this Section 10.1, so long as a Change in Control of either Buyer
or Omnipoint has not occurred subsequent to the date hereof,
Buyer acknowledges and agrees that, if the sole reason for
Seller's delay in performance hereunder is due to either:
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then liquidated damages shall not accrue under this Section 10.1
for such delay and Seller shall be excused from paying the same
in such instance.
10.2 DELAY BY BUYER. In the event of delay caused solely by the actions of
Buyer, the parties shall have the following rights and
responsibilities.
10.2.1 DATE ADJUSTMENT. A day-to-day delay in performance of
Seller's obligations, or a longer adjustment if Seller has
reassigned Installation personnel or suspended deliveries of
Equipment as a result of Buyer's delay; and
10.2.2 REIMBURSEMENT OF CERTAIN EXPENSES. Buyer shall reimburse
Seller for: (i) any reasonable out-of-pocket expenses
incurred by Seller (e.g., subcontractor labor charges, extra
storage or delivery charges, etc.); (ii) salaries of
Seller's Installation personnel; and (iii) capital costs on
delayed Equipment resulting from Buyer's delay or the
resumption of work following such delay; provided, however,
that Seller shall use reasonable efforts to minimize such
expenses by working around delays caused by Buyer.
Notwithstanding Buyer's obligation to reimburse Seller for
its out-of-pocket expenses pursuant to subsection (i) above,
Buyer shall only pay such reasonable costs as are allowed
and contained in Buyer's normal guidelines, as amended from
time-to-time, as set forth in Attachment T, and such
reimbursements shall be made at Buyer's guideline or per
diem rates.
10.3 EXCUSABLE DELAY. In the event of a delay that is not caused solely by
the actions of either Buyer or Seller, as applicable, the parties
shall have the following rights and obligations.
10.3.1 EXCUSABLE DELAYS. Neither Seller nor Buyer will be liable
for nonperformance, defective performance, or late
performance of any of their obligations hereunder, to the
extent and for such periods of time as such nonperformance,
defective performance or late performance is due to acts of
God, war (declared or undeclared), unforeseeable acts
(including failure to act) of any governmental authority
(de jure or de facto), riots, revolutions, fire, floods,
explosions, sabotage, nuclear incidents, earthquakes,
storms, sinkholes, epidemics, strikes, or delays of
suppliers or subcontractors if no equivalent source for
such supplies or services can
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reasonably be obtained for the same causes.
10.3.2 EXCEPTIONS TO EXCUSABLE DELAYS. Seller shall not be entitled
to claim excusable delay under Section 10.3.1, for delays
resulting from strikes or other labor disturbance at any of
Seller's manufacturing plants.
10.3.3 NOTICE. The party claiming the benefit of excusable delay
hereunder shall promptly notify the other of the
circumstances creating the delay and provide a statement of
the impact.
10.3.4 ADJUSTMENT OF DATES. Upon the determination that an
excusable delay has occurred or is likely to occur, the
parties shall meet to determine whether it is necessary to
adjust the time schedule set forth in Attachment H or
whether it is feasible to find alternative methods to make
up part or all of the potential delay. The parties shall use
their reasonable efforts to minimize the effect of an
excusable delay (e.g., alternative shipping techniques,
different suppliers, etc.). Unless explicitly agreed by
Buyer, any adjustment in the time schedule set forth in
Attachment H shall not exceed a day-for-day extension of
time based upon the duration of the excusable delay.
ARTICLE 11 BUYER'S RESPONSIBILITIES
This Article 11 defines the responsibilities of Buyer and certain
joint Buyer and Seller responsibilities.
11.1 PERFORM ACCORDING TO SCHEDULE.
11.1.1 Buyer's obligations as set forth in Attachment F shall be
performed by Buyer in a timely fashion in accordance with
the schedule set forth in Attachment H or, with respect to
items which Seller may have inadvertently omitted from
Attachment F on the date hereof, in a timely fashion on
reasonable notice received from Seller to allow Seller to
perform its obligations under this Agreement. Any delay by
Buyer shall be subject to Article 10.2 of this Agreement.
11.1.2 Notwithstanding anything to the contrary contained elsewhere
in this Agreement, Seller acknowledges and agrees that Buyer
may from time to time make special requests of Seller for
purchases of equipment and services that are not in
accordance with the terms and conditions of this Agreement.
There shall be no penalty to Buyer for making such special
requests. Seller agrees that it shall not unreasonably
refuse such requests and that it shall take all reasonable
action necessary to accommodate such requests. The terms and
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conditions of such special requests shall be mutually agreed upon by
the parties immediately prior to seller's consent to such special
requests.
11.2 Licenses and Permits. Buyer will obtain and pay the fees for operating
licenses, and obtain approvals from the Federal Aviation Administration,
Federal Communications Commission and state public utility commissions,
and other required federal, state and local approvals. At Seller's
request, Buyer shall provide Seller with evidence that such licenses or
permits have been obtained and are in force.
11.3 Buyer-Obtained Services. Unless Seller expressly undertakes the
responsibility therefor as set forth in Attachment F, Buyer shall
complete (or cause subcontractors to complete) services equivalent to
Facilities Preparation Services, Base Station Facilities Engineering,
Base Station Configuration Engineering, Network Element Facilities
Engineering, Site Acquisition Services, and Professional Services
necessary for Installation of the Initial Configuration or Expansions
thereto.
11.4 System Access. Buyer shall provide seller complete access to the System
and acknowledges that Seller may, upon reasonable advance notice to Buyer
and when necessary, interrupt operation of the System while conducting
testing or correcting deficiencies.
11.5 Information. Buyer shall provide Seller all information reasonably
requested from Buyer that Buyer has in its possession and that is
necessary for Seller to properly install the system or as otherwise
required by Seller to perform its obligations under this agreement.
Seller shall deliver to Buyer all information and Documentation necessary
for the understanding, operation and maintenance of the System.
11.6 Space and Utilities. Buyer will provide, at its own expense, (i) adequate
work space for Installation personnel and storage space for Equipment,
and (ii) utilities (e.g., heat, light, ventilation, electric current and
outlets) required for Installation and testing.
11.7 Security. *
for safeguarding the Network Element Location, Base Stations, and storage
areas for Equipment
* activities at such locations.
11.8 Buyer to Assist. Buyer agrees to reasonably assist Seller to obtain and
maintain (i) licenses, permits or approvals for importation, re-
exportation of the Equipment and Software on a duty and customs free
basis, and (ii) entry or work permits or visa required for personnel
engaged by Seller to perform work under this Agreement.
11.9 Minimum Infrastructure Commitment. Buyer agrees to purchase from Seller
a minimum of eighty-five million dollars ($85,000,000) (the "Minimum
Purchase Requirement") of infrastructure Equipment, Software,
as described in
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Section 11.9.1. Such eighty-five million dollar ($85,000,000) purchase
amount shall be based upon the net of discount prices offered to Buyer
hereunder. For purposes of determining whether the minimum purchase
requirement obligation has been satisfied, all Equipment and related
services, as provided in Section 11.9.1, ordered by Buyer prior to the
fifth anniversary of the date hereof shall be deemed a "purchase,"
regardless of whether Buyer has received such Equipment and services and
regardless of whether Buyer continues to have payment obligations with
respect to any Equipment and services delivered prior to such fifth
anniversary date.
11.9.1 Applicable Purchases. All infrastructure Equipment, Software,
* ordered by Buyer and delivered by Seller or to be
delivered by Seller shall be credited as satisfying in the
Minimum Purchase Requirement, including Base Station subsystems,
MSCs, BSCs, HLRs, VLRs, power equipment, OAM&P systems,
transmission equipment, ancillary equipment, related Software and
related Services ("Applicable Purchases"). Handset purchases,
however, are specifically excluded from Applicable Purchases.
11.9.2 New York MTA. Of the eighty-five million dollars ($85,000,000)
of Applicable Purchases to be made for use in the New York MTA,
at least *
shall relate to PCS 1900/GSM
based equipment and services and the remaining *
or less shall relate to IS-661 based equipment and
services. For purposes of the purchase commitment contained in
this Section 11.9.2, Network Element Configurations purchased
from Seller that are used Primarily to provide switching
functionality for IS-661 BSCs and IS-661 BTS equipment shall not
be considered PCS 1900/GSM based equipment.
11.9.3 C Block BTA Licenses. Should any of Buyer's affiliates acquire
C-Block BTA licenses covering in aggregate at least twenty-seven
million (27,000,000) people (beyond those in the New York MTA),
Buyer's affiliates shall be required to make additional
applicable purchases aggregating no less than one hundred sixty-
five million dollars ($165,000,000), of which at least *
shall relate to PCS 1900/GSM based equipment and related
services. To the extent Buyer's Affiliates acquire C-Block BTA
licenses but the coverage in aggregate of such licenses is less
than twenty-seven million (27,000,000) people (beyond those in
the New York MTA), Buyer's Affiliates shall remain obligated to
make additional Applicable Purchases, but the one hundred
sixty-five million dollar ($165,000,000) and *
purchase commitment levels set forth above shall be
reduced proportionately to the actual coverage level obtained by
Buyer's Affiliates or such purchase level commitments shall be
reduced in such other manner as the parties agree is equitable.
Buyer and each of Buyer's Affiliates ordering and purchasing
Deliverables pursuant to the
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terms and conditions of this Agreement shall be severally liable
for payment of the orders and purchases made by such entity, and
Buyer and each of Buyer's Affiliates shall not be liable or
obligated to pay for any orders or purchases made by any other of
Buyer's Affiliates hereunder. In connection with the several
liability of Buyer and each of Buyer's Affiliates, any breach of
the terms and conditions of this Agreement by Buyer or any
individual Buyer Affiliate, as the case may be, shall not be
deemed to be a breach of this Agreement nor attributed as a breach
of this Agreement by the remainder of Buyer or Buyer's Affiliates,
as the case may be, ordering and purchasing Deliverables
hereunder. *
11.9.4 Conditions Precedent. Buyer's purchase commitments under this
Section 11.9 are subject to the conditions precedent as set forth
below. Should any of these conditions precedent be initially
satisfied but subsequently fail, Buyer's commitment requirement
shall be adjusted as set forth herein.
11.9.4.1 Buyer Relieved of Minimum Purchase Commitment
Obligation. In the event that any of the conditions
precedent set forth in this Section 11.9.4.1 are not
met, Buyer shall be relieved, in its entirety, of the
Minimum Purchase Commitment. The conditions precedent
for which Buyer shall be relieved of its Minimum
Purchase Commitment obligation are as follows:
(a) Seller fails to provide vendor financing to Buyer as
described in Section 12.22 hereof for any purchase
of Deliverables or *
(or group of purchases of Deliverables or
if a single invoice is issued by Seller) equal or
exceeding ten thousand dollars ($10,000) made under
this agreement;
(b) Orbitel and Omnipoint fail to sign the Orbitel
Handset Supply Agreement, *
11.9.4.2 Buyer's Minimum Purchase Commitment Obligation Equitably
Reduced. In the event that any of the conditions
precedent set forth in this Section 11.9.4.2 are not
met, Buyer's Minimum Purchase Commitment shall be
equitably reduced. The conditions precedent which, if
not satisfied, will result in Buyer's Minimum Purchase
Commitment being equitably reduced are as follows:
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(a) *
(c) Seller shall not be in Material Default of this
Agreement or the Handset Agreement. The equitable
reduction of Buyer's Minimum Purchase Commitment
pursuant to this Section 11.9.4.2 shall be based upon
the magnitude and duration of Seller's Material Default
and the long-term effect upon Buyer's business resulting
from such Material default, including the cost to
operations and the impact on Buyer's ability to attract
and maintain customers.
11.10 Responsibility Matrix. Buyer shall discharge those responsibilities
identified as those of Buyer, including Buyer's portion of
responsibilities that are to be jointly performed by Buyer and Seller,
set forth in the "Responsibility Matrix," Attachment F hereto. Attachment
F contains a high-level summary of many responsibilities of the parties
and Buyer's particular responsibilities under any item of this attachment
shall be discharged in accordance with the particulars as may be further
defined elsewhere in this agreement.
11.11 Pay-As-You-Grow Fees Information. Buyer agrees to provide Seller with all
information necessary and appropriate for calculation of the Pay-As-You-
Grow software fees referenced under Section 19.2.
11.13 Other Obligations. Buyer shall perform all other of its obligations set
out in this agreement and any other agreement delivered in connection
therewith.
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ARTICLE 12 Seller's Responsibilities
12.1 Licenses and Permits. Any licenses, permits or approvals required by any
federal, state, or other governing authority relating to the manufacture,
importation, safety or use of the equipmnet throughout the United States
or any state shall be the sole responsibility of Seller. At Buyer's
request, Seller shall furnish Buyer with evidence that such licenses or
permits have been obtained and are in force. Any licenses, permits or
approvals required by any federal, state or local governing authority
relating to use of the Equipment or System in a specific locality shall
be the sole responsibility of Buyer.
12.2 Eligibility. Seller shall be responsible for ensuring that Seller and
Seller's subcontractors are and remain eligible under local laws to
perform the work under this Agreement in the several jurisdictions
involved.
12.3 CMS-40 Commitment. Seller agrees to develop and supply Base Station
Equipment to Buyer as provided below.
12.3.1 2 TRU Micro-RBS. Seller shall commence deliveries to Buyer of a
two (2) TRU capable version of the micro-BTS not later than July
1, 1997 (the "First Stage Micro-RBS"). Seller shall make available
for sale to Buyer a minimum of fifty (50) of such first stage
micro-RBS units per month through the end of 1997. Seller agrees
and that it will maintain such minimum production volumes as are
necessary to ensure sufficient supply to meet all quantities
forecast for purchase and receipt by Buyer in accordance with the
forecasting procedures set forth in Attachment H hereto. Provided,
however, that, except as set forth in Attachment H, Buyer shall
not be required to purchase any minimum volume of such equipment.
12.3.2 Failure to Meet Delivery Dates-Substitute Equipment. Should Seller
fail to comply with the dates and availability quantities required
in Section 12.3.1, Seller shall furnish Buyer the most closely
functionally equivalent base station available (such replacements
being referred to as "Substitute Equipment"). Buyer understands
that substitute equipment might be larger or heavier than the
Micro-BTS and may possess additional functionalities. The price
for the Substitute Equipment shall be the price defined in this
agreement for the equipment originally requested by Buyer in the
ordered configuration but unavailable from Seller. At Buyer's
request or at Seller's option, Seller will replace Substitute
Equipment when the originally-ordered equipment becomes available.
12.4 Interface Assistance. Subject to the terms and conditions of Section
12.9 below, *
provide reasonable assistance to
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Buyer in arranging, testing and negotiating interfaces to the PSTN.
12.5 Engineering Review. subject to the terms and conditions of Section 12.9,
during the course of Seller's performance of its obligations hereunder,
Seller shall review engineering and other information supplied to Seller
by Buyer pursuant to Section 11.5, in the course of Buyer's performance
under this agreement, including, without limitation, engineering
parameters, site locations and frequency plans. *
Where, during the course of Seller performing its review of
Buyer's information supplied pursuant to Section 11.5 Seller identifies
an error in Buyer's information, Seller shall inform Buyer of the error
and propose resolution of the same.
12.6 Modifications; Notice of Defects. Seller shall promptly advise Buyer of
defects or modifications required in Network Elements or Software.
Seller's obligation to correct defects or provide modifications is
defined elsewhere in this Agreement.
12.7 Retrofits. Seller shall offer for sale to Buyer a retrofit package for
any change in PCS 1900 standards subsequently enacted by the government,
regulatory agencies, the TIA, the Electronic Industry Association
("EIA"), etc., on terms to be negotiated by Buyer and Seller. With
respect to any IS-661 based equipment developed and manufactured by
Seller and sold to Buyer, Seller shall offer for sale to Buyer a Retrofit
package for any change in IS-661 standards subsequently enacted by the
government, regulatory agencies, the TIA, the EIA, etc., on terms to be
negotiated by Buyer and Seller.
12.8 Documentation. Seller shall provide documentation to Buyer that, in
conjunction with Seller's training program, shall be sufficient to enable
Buyer to operate and maintain the networks contemplated under this
Agreement. Seller shall provide Buyer with Documentation as set forth in
Attachment E. Seller shall also provide to Buyer provisioning
documentation and software, to the extent available.
12.9 Consultation. Seller shall make available its experts for reasonable
consultation with Buyer's representatives, *
Buyer shall not use such consultation as a substitute for
services offered for sale by Seller to Buyer, including but not limited
to System Support Services and Professional Services.
12.10 Special Product Software. "Special Products Software" shall include
Software providing features requested only by Buyer, or with features
capable of wider application but on a different time schedule than
contemplated by Seller. Seller shall provide a reasonable price quotation
for Special Product Software as may be requested by Buyer and, if Buyer
accepts such quotation, develop such Special Product Software. In
general, the terms for Special Product Software may provide an optional,
separately-priced, exclusivity period during which the Special Product
Software is only available to Buyer. The Seller's price quotation shall
take into consideration the
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subsequent marketability of the feature to other customers of Seller.
12.11 Technical Education. seller shall provide the Technical Education courses
and manuals for Buyer's employees as set forth in Attachment Q, including
the Technical Education identified * in
Attachment Q.
12.12 Conformity with Law . As of the date of Conditional Acceptance thereof,
all systems ordered hereunder shall comply with applicable FCC rules then
in effect and with all other applicable federal, state and local laws and
rules and regulations promulgated thereunder and with the specifications
set forth in Attachment M, provided such systems are maintained and
operated by Buyer in accordance with Seller's specifications.
12.13 Emergency Deliverables. In the event of an emergency, Seller shall use
its best reasonable efforts to ship reasonable quantities of equipment
within *
of receipt of a written or facsimile Purchase Order from Buyer.
12.14 Safety and Legal Standards. Seller is responsible for assuring that
proper safety measures are taken to avoid accidents and that all work
performed is done in accordance with the relevant health and occupational
safety laws, whether the work is performed by Seller or by Seller's
subcontractors.
12.15 Expert Assistance. For the first initial configuration established within
an MTA, Seller shall provide to Buyer:
(i) *
and
(ii) at the prices set forth in Attachment A, for the period of time
commencing on the completion of the Stability Period applicable to such
Initial Configuration and for the balance of the Term, *
such number of experts, as described below, as Buyer shall require and
Seller can reasonably provide to Buyer. At a minimum, Seller shall
provide Buyer experts possessing switching and BTS expertise and
knowledge as follows:
(a) Switching Experts. For each Initial Configuration with an
MSC, MSC/OAM&P experts and BSC experts, knowledgeable in both
hardware and Software components, and
(b) Base Station Experts. BTS experts for each Initial
Configuration.
For all subsequent Initial Configurations established within an MTA,
Seller shall provide such Switching Experts and Base Station Experts as
Buyer shall request at the prices set forth in Attachment A.
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12.16 Right of First Refusal for Test Systems. Seller may offer, on a case-by-
case basis as new software and other deliverables become available, Buyer
the initial opportunity to become a beta test site, first office
application or controlled roll-out of such Software and other
Deliverables. Buyer shall have the right to decline any offer.
12.17 *
12.18 Attachment Completion. Buyer and Seller agree to work together in good
faith to complete all uncompleted Attachments to this agreement as
detailed in Article 35 hereof upon the schedule set forth therein, or
upon such schedule as Buyer and Seller shall mutually agree.
12.19 Cooperate with testing certain third-party BTS Equipment. Seller agrees
to work with Buyer to test the performance of "cell enhancers" and/or
"repeaters" provided by third parties with Seller's BTS equipment. Seller
agrees to support the testing in a time-frame upon which Buyer and Seller
have mutually agreed. Within forty-five (45) days after Seller has
received Buyer's request, Buyer and Seller shall determine specific terms
and conditions of this testing, including but not limited to: (i)specific
products to be tested; (ii) timing of the testing; (iii) Seller's role in
performing the tests and evaluating the test results; and (iv) the cost
of such testing to Buyer.
The testing described above in no way obligates Seller to modify BTS
hardware or software (if deemed to be necessary to support such third
partly products). If BTS hardware and/or software changes are deemed to
be necessary, Seller shall evaluate the feasibility of making such
changes and, if feasible, propose the same to Buyer under commercially
reasonable terms. In addition, Buyer and Seller recognize that the
warranty and performance sections of the Agreement (including but not
limited to Section 9 and Attachment M) do not cover failures to perform
in the System where such failures result from the use of third party
products referenced here. As specific products are identified, tested,
and integrated into Seller-provided Systems, certain portions of the
warranty and performance sections of this Agreement (including but not
limited to Section 9 and Attachment M) may require modification.
12.20 Upgraded and New MSC or BSC Platform. Buyer and Seller acknowledge that
Seller may introduce a new MSC or BSC Platform (i.e., an updated
replacement for Seller's AXE-10-based equipment) during the Term. Seller
and Buyer will work together to maximize the value of Buyer's investment
in PCS 1900 and IS-661 technology. In connection therewith, Seller
acknowledges and agrees that the following principles will govern its
business and technical decision making processes throughout the term of
Buyer's and Seller's business relationship:
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12.20.1 The platform provided by Seller to Buyer will be capable of
supporting all the services set forth in Attachment M.
12.20.2 Seller shall continue to support Equipment and associated
Software components of PCS 1900 products as set forth in
Articles 14 and 15, so long as Buyer implements software updates
and basic releases as they become commercially available. This
support shall include documentation, utilization of engineering
and planning tools, installation and growth procedures,
training, availability of replacement, growth and repair
material, availability of spares as well as technical support.
The discontinuance or significant reduction of support as
described above shall carry the presumption of functional
obsolescence. Should seller decide to offer new products and
discontinue the manufacturing of existing products, Seller will
provide buyer the opportunity to place a last order for existing
products. Additionally, Seller warrants that any new products
will be backwards compatible with the prior two generations of
discontinued products.
12.20.3 In the event the PCS 1900 platform becomes functionally
obsolete, as described above, Seller shall provide incentives,
such as purchase credits, to Buyer (with appropriate
consideration for the competitive environment and the in-service
life of existing equipment) for Buyer to acquire such
replacement architecture from Seller. Buyer and Seller shall
jointly agree upon and determine the amount of credits to be
provided. As a guideline, the value of these credits should be
approximately equivalent to the full replacement costs initially
and reduced to zero (0) at the end of the discontinued product's
normally depreciated useful life. Should Buyer and Seller be
unable to reach agreement on the amount of credits due Buyer,
the issue shall be resolved pursuant to the arbitration process
contained in Article 23.
12.20.4 *
12.21 Updated Codec. All BTS equipment delivered shall be equipped with dual-
mode CODECS, capable of supporting both the GSM/PCS standard 13 kb/s
VOCODER and the enhanced full-rate VOCODER. Seller's equipment shall be
designed to permit modular upgrading to include half-rate speech coding,
should Buyer so desire. The parties acknowledge that the TRAUs identified
and priced in Attachment A are
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equipped with the enhanced full-rate VOCODER described herein.
12.22 Seller Financing. *
* Notwithstanding anything to the contrary contained in the
immediately preceding sentence, Buyer's obligations with respect to (i)
paying Seller for Deliverables already received by Buyer or ordered by
Buyer that are to be received and accepted by Buyer, at Buyer's option;
(ii) warranty claims made pursuant to Article 13; and (iii) all
obligations imposed on Buyer as set forth in Article 19 hereof shall
continue until the amounts owed under clause (i) are paid in full and for
the duration of any warranty period under which Buyer may make claims.
12.23 Seller Advertising, Marketing and Promotion. Seller agrees that, to help
ensure the success of Buyer's network, Seller shall employ, *
the advertising, marketing and promotional campaigns that it has
traditionally undertaken with operators of other PCS and cellular
systems. Such campaigns shall include, but not be limited to, placement
of print advertisement with various newspapers printed and widely
distributed in the New York MTA.
12.24 Technical Education Courses. Seller agrees and acknowledges that, in
addition to the Technical Education courses Buyer shall purchase from
Seller pursuant to Section 5.7, Seller shall provide the certain
Technical Education courses *
in accordance with the following criteria:
(a) *
Buyer shall be able to send *
to (i) Seller's CMS 40 AXE 10 Operation and Maintenance
course (15 days) and (ii) Seller's CMS 40 MSC Operation and
Maintenance course (5 days); and
(b) for *
* as the case may be) personnel to Seller's RBS 2000
Operation and Maintenance Course (5 days).
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12.25 *
12.26 Handset Bundling with Infrastructure Purchases. Seller acknowledges and
agrees that, at any time during the term, Buyer may request to bundle
Equipment and Software purchases with Handset purchases. Seller shall
sell and deliver such quantity or quantities of bundled Equipment,
Software and Handsets at a bundled price that is based upon the Equipment
and Software prices that are then in effect under this Agreement and
based on the Handset prices that are then in effect under the Handset
Agreement.
Article 13 Warranties
13.1 General. In addition to any other warranties contained elsewhere in
this Agreement, the following warranties shall be applicable to
deliverables supplied pursuant to this Agreement.
13.2 Equipment and Installation Services. Equipment and Installation Services
are warranted as provided in this section 13.2
13.2.1 Duration and Duty to Repair or Replace. Seller warrants that, for
a *
(the "Warranty Period"), Equipment and the Installation
thereof shall materially conform with and perform the functions
set forth in the Specifications and shall be free from defects in
material or workmanship that impair: (i) service to subscribers,
(ii) System performance, (iii) billing, (iv) administration, or
(v) maintenance. If notified by Buyer of any such defects in
material or workmanship or nonconformity with Specifications
within the Warranty Period, Seller shall, at its election and
expense, repair or replace any such defective Equipment or
Installation. Such repair or replacement includes material, labor
and services, and shall be Buyer's sole remedy and Seller's sole
obligation in the event this warranty is breached. Any Equipment
repaired or replaced under this Section 13.1 shall be subject to
the original Warranty Period, or * whichever is
longer. In the event the repair of Equipment results in an
extension of the original warranty period pursuant to the
immediately preceding sentence, Buyer agrees to monitor such
extension period and inform Seller that such repaired equipment
continues to be subject to the warranty provisions of this
Agreement, if a subsequent repair is to be performed during such
extended warranty period. Notwithstanding anything to the
contrary contained in the Equipment
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warranty provision set forth above, Buyer acknowledges and agrees
that the length of warranty period Seller shall provide Buyer for
equipment that Seller originally purchases from Buyer or one of
Buyer's Affiliates shall only be of the same period duration as
that provided offered by Buyer or Buyer's Affiliate to Seller.
13.2.2 Notice of Claim. If Buyer claims a breach of warranty under this
Section 13.1, it shall notify Seller promptly of the claimed
breach. Buyer will allow Seller to inspect the Equipment or
Software at Buyer's location, or, upon Seller's request, return
the equipment to Seller's U.S. repair facility.
13.2.3 Circuit Boards. During the Warranty Period, electronic circuit
board components will be repaired or replaced, with Buyer
responsible for normal "first echelon" fault isolation (except to
the extent that Buyer could not have reasonably been expected to
isolate such fault without the assistance of Seller), removal of
defective boards and replacement from spare stock (except to the
extent that such removal and replacement requires the specialized
expertise of Seller), and packing and shipping to Seller's U.S.
repair facility. Buyer will maintain a stock of spare board
assemblies as recommended by Seller for this purpose. The parties
will review Seller's recommended spares level periodically to
ensure that Buyer is not maintaining excessive spares holdings. In
the event that Buyer experiences board assembly failures that
materially exceed the number and frequency of such failures
contemplated by the spare board assembly stock recommended by
Seller, at the request of Buyer, Seller shall supply to Buyer
additional spare board assemblies of each type so depleted, as
necessary to maintain an adequate emergency replacement stock,
without charge to buyer, until implementation of a permanent
remedy. Upon implementation of such remedy, all excess boards
supplied under this Section shall be returned to Seller.
13.2.4 Freight. Buyer agrees that the freight charges incurred to send
equipment from Buyer's point of origin to Seller's U.S. repair
facility shall be borne by Buyer. Seller agrees that freight
charges incurred to send repaired equipment from Seller's U.S.
repair facility to Nuyer's point of origin in connection with
Seller's obligations under this Section 13.2 shall be borne by
Seller, unless the equipment returned is not defective or
otherwise not covered by Seller's limited warranty, in which case
Buyer shall pay for all freight charges between Buyer's point of
origin and Seller's U.S. repair facility. Where circuit boards are
returned to Seller by air express service, Seller shall ship the
repaired or replacement circuit board by air express service.
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13.3 Software Warranty.
13.3.1 General Warranty. Seller warrants that during the Warranty Period,
the Software, Software Updates, Software Enhancements and Software
Features shall materially conform with and perform the functions
set forth in the specifications, and shall be free from defects in
material and workmanship which impair service to subscribers,
System performance, billing, administration or maintenance. If,
during the warranty period, Seller is notified that the software
is defective or fails to so perform, Seller shall correct such
defects or failure and ensure that the software, software updates,
Software Enhancements and Software Features conform with, and
perform the functions set forth in, the specifications. Seller's
obligation under this warranty is limited to correction of any
Software, Software Update, Software Enhancement or Software
Feature failures and Seller's performance thereof shall be Buyer's
sole remedy in the event this warranty is breached.
13.3.2 *
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*
13.4 Time for Remedy-Normal. Seller will return to buyer the repaired or
replaced equipment or provide the remedy for the defect in software or
installation within * working days from
the date Buyer makes a request for service under this warranty to
Equipment, Software or Installation not materially impairing service with
respect to subscribers, System performance, billing, administration or
maintenance.
13.5 Time for Remedy-Service Affecting. Seller agrees to commence work on all
Equipment, Software or Installation defects materially impairing service
to subscribers, System performance, billing, administration or
maintenance as soon as practicable, but in no event later than twenty-
four (24) hours after notification of such defect, and will cure such
defect as promptly as practicable.
13.6 Exclusions to Warranty. Seller's limited warranty under this Article 13
shall not apply to:
13.6.1 Buyer's Negligence. Damage or defects caused by Buyer's
negligence, including, but not limited to:
13.6.1.1 Exposure of Equipment or Software by Buyer to
environmental conditions other than set forth in
Attachment G and Attachment M, or use by Buyer other
than in accordance with written instructions furnished
by Seller;
13.6.1.2 Modification by Buyer of Equipment or Software without
Seller's written consent;
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13.6.1.3 Interaction with the System caused by Buyer of equipment
or software not purchased under this Agreement, unless
Seller expressly consents in writing to such; or
13.6.1.4 Operation or Servicing of the System by Buyer's
personnel or contractors who have not received Technical
Education from seller commensurate with the operational
or servicing tasks performed by such personnel.
13.6.2 Certain Damage. Any Equipment or Software damaged by accident or
disaster, including without limitation, fire, flood, wind, water,
lightning or power failure; or
13.6.3 Consumable Supplies. Fuses, lamps and soft magnetic storage media
are excluded from Seller's limited warranty under this Article 13,
but Seller warrants all such items shall be free from defects for
a period of ninety (90) days following the punch list clearance
date.
13.7 Non-Warranty Expenses. Buyer shall reimburse Seller for Seller's
reasonable out-of-pocket expenses incurred, at Buyer's request, in
responding to and/or remedying Equipment, Software, or Service
deficiencies not covered by the warranties set forth herein or by the
obligations established under an agreement for System Support Services
between Seller and Buyer. Upon request by either party, if it appears
that Buyer is regularly purchasing non-warranty repair services, Buyer
and seller shall negotiate, in good faith, the means to minimize Buyer's
costs in so doing (e.g., Seller's establishment of local repair centers,
flat-rate repair instead of time-and-materials, etc.).
13.8 Third Party Goods and Services. If Seller purchases or subcontracts for
the manufacture of any part of the System or the performance of any of
the services to be provided hereunder from a third party, the warranties
given to Seller by such third party shall inure, to the extent applicable
or permitted, to the benefit of Buyer, and Buyer shall have the right to
enforce such warranties directly or through Seller. The warranties of
such third parties shall not be in lieu of any warranties given by Seller
under this agreement.
13.9 MSC Call Capacity Warranty
13.9.1 Warranties Defined. Seller warrants the call processing capacity
of its MSC and BSC Network Elements as defined below. In the
event of a breach in this warranty, Seller shall furnish
additional equipment necessary as contemplated at Section 13.11
13.9.2 Call Model and statistics. Buyer understands that the precise
call
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processing capacity of MSC and BSC Network Elements is
influenced by the nature of the call statistics in the System.
Seller's initial Call Capacity Warranty is based, in the absence
of actual information upon subscriber behavior, upon certain
assumptions in a "call model." In addition, the call processing
capacities are defined for a certain set of system Features. Buyer
acknowledges and agrees that to ascertain whether Seller is in
breach of its Call Capacity Warranty, the scope of the Call
Capacity Warranty will be recalculated, based upon a new "call
model" reflecting the actual subscriber behavior observed in the
System and upon those Features implemented in the System. The call
model and Features used in defining the initial Call Capacity
Warranty are set forth in Attachment M.
------------
13.9.3 Adjusting Warranty. The call processing capacities set forth in
Attachment M shall be adjusted as reasonably necessary to reflect
(a) changes in the values specified in the call model to reflect
actual subscriber behavior and (b) degradation, if any, associated
with features introduced after the date of this agreement. The
algorithm Seller uses to develop the warranted call processing
capacities, and how the results should be adjusted to reflect
actual subscriber behavior, is set forth in Attachment M.
The impact on call capacity of Features introduced after the date
hereof will be evaluated on a case by case basis. Seller may not
change this algorithm during the term of this warranty except to
supplement it as necessary to reflect new or modified hardware,
Network Elements or Features. Any disputes concerning these
adjustments or application of the algorithm or the warranty shall
be resolved by the Third-Party Engineer.
13.9.4 Remedies. In the event Seller breaches the warranty established
in this Section 13.9, Seller shall use its best efforts to
diagnose and correct the breach upon a schedule satisfactory to
buyer in its reasonable discretion, without charge to Buyer.
Should additional or modified deliverables be necessary to correct
the breach, Seller shall provide the deliverables without charge,
as contemplated in Section 13.11. The remedies provided under this
Section 13.9 shall be without prejudice to Buyer's claims for
remedies under other provisions of this agreement *
13.9.5 Warranty Term. This call capacity warranty shall be in effect
for the term and for any renewal or extension period subsequent to
the term.
13.10 Performance of System and Deliverables. The Seller expressly
warrants as provided in this Section 13.10 with respect to the
performance of the deliverables. In the event of a breach in this
warranty, Seller shall furnish additional equipment necessary as
contemplated at Section 13.11.
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13.10.1 Dependability Performance. The dependability performance
specifications set forth in Attachment M shall be binding upon
all deliverables supplied by Seller. Without limiting any other
remedy of Buyer, if any equipment fails to operate in material
accordance with this criterion, seller, at its sole cost, shall
immediately take all reasonable measures necessary to resolve
the problem. In determining whether Seller is in compliance with
this section 13.10.1, the travel time of maintenance forces
shall be excluded. seller's dependability performance values
assume that the repairing technician has completed the relevant
courses offered by Seller and is equipped with Seller's
recommended spare parts, test equipment and tools. An equitable
adjustment shall be made in Buyer's measured Dependability
Performance figures should these assumptions fail to be correct
for Buyer's maintenance forces.
13.10.2 TRU Dependability Performance. In the case of TRU modules, in
addition to the remedy provided at Section 13.10.1, Buyer shall
also be compensated *
The compensation shall
include the *
In the event of a claim under this Section 13.10.2,
Buyer and Seller shall, in good faith, negotiate the most cost-
efficient method of compensating Buyer, while still maintaining
Buyer's commercially reasonable network maintenance standards.
The method of compensation may include but is not limited to:
*
13.10.3 Dropped Calls. Seller warrants that, *
the System target performance shall be a dropped call
rate, regardless of the cause thereof, not to exceed *
Seller and Buyer agree that if the System is not
performing in accordance with expectations or at the designated
performance levels, Buyer and Seller shall investigate jointly
the cause of such substandard performance. If Buyer and Seller
determine that such substandard performance is the fault of
Seller, then Seller shall take corrective action in accordance
with the terms of Seller's warranty provided herein. In
determining the cause of the System's substandard performance,
the following items shall be given consideration:
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*
In cases where multiple vendors are involved in Buyer's network,
Seller's liabilities under this Section 13.10.3 shall be only
with respect to Seller's portion of the network. Claims of
inadequate processor power are excluded from this Section 13.10.3
and instead are warranted under Section 13.9. System downtime and
System restarts are also excluded from this Section 13.10.3
warranty.
13.10.4 Seller to Act. Without limiting any other remedy of Buyer, if
the systems fails to operate in accordance with the criteria set
forth in Sections 13.10.2 and 13.10.3 above, Seller, *
shall immediately take all reasonable measures neceesary to
resolve the program.
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13.10.5 Promised Performance Specifications. The Seller warrants that the
Deliverables shall provide the capacity and functionality as set
forth in Attachment M provided, however, that Seller is not
responsible for under-specifying the equipment needed where the
under-specification results from Buyer's provision of incorrect
data to Seller. Buyer's remedy for a breach of this Section
13.10.5 shall be as provided in Section 13.11.
13.10.6 Compliance with PCS 1900 or IS-661 specifications. upon
acceptance of any equipment delivered hereunder, *
Seller represents and warrants that the System will
function in accordance with the then-current PCS 1900 (or IS-661,
as appropriate) standards in effect at the time of such
Acceptance, as implemented under Seller's Software schedule set
forth in Attachment M and with such exceptions or partial
compliance as defined in Seller's compliance statement as set
forth in Attachment M. If such performance is not maintained,
Seller shall promptly replace or repair any non-performing item,
without cost to Buyer.
13.11 Additional Products and Services Remedy. Seller has made certain
capacity and performance warranties in Article 13 and elsewhere in this
Agreement. In the event of a breach of such warranties, Seller shall, at
no additional cost to Buyer, provide such additional Deliverables as are
required to remedy the shortfall. The additional Deliverables identified
in this Section 13.11 shall include, but not be limited to, replacement
Deliverables, upgrades, and retrofits. in the event that one or more new
sites are reasonably required to correct the shortfall, Seller shall
provide all Deliverables for the new site(s). Buyer shall be responsible
for site acquisition and site preparation costs and Seller shall pay all
costs for moving, Installation and Optimization of the Deliverables
related to such sites. If, in the future, Deliverables can be enhanced to
meet the warranted capacity or functionality, and Seller provides such
enhancements to Buyer, Buyer shall, at Buyer's option, either return or
purchase, for an agreed upon price, those Deliverables that were provided
earlier to remedy a breach of warranty. The remedies provided under this
Section 13.11 shall be without prejudice to Buyer's claims under any
other provision of this Agreement.
13.12 Link Budget. Seller warrants the equipment link budget set forth in
Attachment M. in the event that the link budget is not met in practice,
Seller shall furnish additional equipment necessary as contemplated in
Section 13.11.
13.13 Critical Fault Warranty. Seller warrants that the Deliverables will not
experience Critical Faults Beyond those permitted in this Section 13.13.
13.13.1 Critical Fault Defined. "Critical Fault" is defined as an
unplanned outage meeting the criteria defined below that
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*
For purposes of calculating the number of BTS sites, *
The "Utilized Capacity" for a particular period is the
measurement of the *
At certain times of day, the capacity of the System,
even if it is experiencing a reduction or outage, will still be
greater than the Utilized Capacity for such period. In such case,
no Critical Fault shall have occurred.
*
For Systems with multiple MSCs, the Critical Fault warranty shall
be determined on an MSC-by-MSC basis.
Events or activities outside of or beyond Seller's control,
including but not limited to power failures, failure of network
facilities, or Network Elements that are not deployed in a fully
redundant configuration, where such configuration is offered by
Seller, shall not be deemed to be a Critical Fault.
13.13.2 WARRANTY DEFINED. Seller warrants that, during the warranty
term set forth in subsection 13.14.3, each system shall not
experience a Critical Fault
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13.13.3 WARRANTY TERM. The warranty term shall commence upon
Conditional Acceptance of each Initial Configuration and shall end
three (3) years later.
13.13.4 REMEDY-ON SITE ASSISTANCE. Seller shall immediately, but no
later than * after Buyer has made a request
for on-site assistance to remedy a Critical Fault, (if such
Critical Fault has not previously been remedied) dispatch
appropriate technical personnel to provide on-site assistance on *
until such Critical Fault is remedied. This assistance, *
provided, however, Seller reserves the right *
if the Critical Fault is not caused by failure of
Deliverables to perform as warranted hereunder. The remedy defined
in this Section 13.13.4 shall be without prejudice to any other
remedy available to Buyer.
13.13.5 REMEDY-LIQUIDATED DAMAGES. On a non-cumulative basis:
*
In no event shall the aggregate of the damages payable pursuant to
this sub-section 13.13.5 exceed *
13.13.6 SERVICE AFFECTING FAULTS. A Service Affecting Fault is defined
as a single unplanned outage meeting the criteria below that
exceeds *
in duration.
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*
During the warranty period set forth in Section 13.13.3, should
Buyer experience a Service Affecting Fault, Seller shall, within
twenty-four (24) hours after a Service Affecting Fault, if not
previously remedied, dispatch appropriate technical personnel to
provide on-site assistance on a seven (7) days-a-week, twenty-four
(24) hours-a-day basis until such Service Affecting Fault is
remedied. This assistance, *
if the Service Affecting Fault is not caused by failure
of Deliverables to perform as warranted hereunder. The remedy
defined in this Section 13.13.6 shall be without prejudice to any
other remedy available to Buyer.
13.13.7 EXCEPTIONS TO CRITICAL FAULT WARRANTY. Seller shall not be
liable for a breach of the Critical Fault Warranty where the
breach is Primarily due to actions of Buyer in operating or
maintaining the System provided that Buyer's actions are
inconsistent with Seller's explicit instructions as provided in
the Documentation. Seller is also not responsible for Critical
Fault or Service Affecting Fault warranties where the outage is
caused by the actions of a third party, where the third party is
not under the control of Seller. Excluded from the time
calculation shall be the travel time of Buyer's maintenance forces
where travel is necessary to reach a defective Network Element.
Where a breach is due to errors jointly attributable to Buyer and
Seller, any liquidated damages due to Buyer shall be pro-rated
according to the degree of responsibility borne by the parties.
The Third-Party Engineer shall assess the responsibility for fault
and the relative percentages of responsibility should this be in
dispute.
13.14 LIMITATION ON WARRANTIES. THE LIMITED WARRANTIES IN THIS ARTICLE 13
CONSTITUTE THE ONLY WARRANTIES OF SELLER WITH RESPECT TO THE EQUIPMENT OR
SOFTWARE, AND ARE IN LIEU OF ALL OTHER WARRANTIES, WRITTEN OR ORAL,
STATUTORY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO
WARRANTIES ARE MADE BY SELLER ON BEHALF OF ANY OTHER PARTY THAT MAY HAVE
INDEPENDENTLY SUPPLIED ANY PART OF THE SYSTEM TO BUYER. SELLER'S WARRANTY
OBLIGATIONS UNDER THIS ARTICLE 13 SHALL NOT BE ENLARGED, DIMINISHED OR
AFFECTED BY, AND NO WARRANTY OBLIGATION OR LIABILITY SHALL ARISE FROM
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SELLER'S PERFORMANCE OF SYSTEM SUPPORT, SYSTEM SUPPORT SERVICES OR
PROFESSIONAL SERVICES OR OTHER ADVICE OR SERVICE MADE IN CONNECTION WITH
THE SYSTEM.
ARTICLE 14 SYSTEM SUPPORT SERVICES
Seller agrees to make the System Support Services available to Buyer as
substantially set forth in Attachment D.
ARTICLE 15 CONTINUITY OF EXPANSION FUNCTIONALITY
Through December 31, 2010, Seller shall make available for sale to Buyer,
Equipment and Software to enable Buyer to expand the System. Such Equipment and
Software will provide equivalent functionality for and shall be compatible with
the System. Following the term of this Agreement, the prices for such Equipment
and Software shall be Seller's list prices or such price as Buyer and Seller may
then negotiate.
ARTICLE 16 AMENDMENTS
The terms and conditions of this Agreement, including the provisions of the
Attachments, may be amended by mutually agreed contract amendments. Each
amendment shall be in writing and shall identify the provisions to be changed
and the changes to be made. Contract amendments shall be signed by duly
authorized representatives of Seller and Buyer. Any acknowledgment form or other
document of Seller or Buyer containing terms and conditions of sale or purchase
shall not have the effect of modifying the terms and conditions of this
Agreement, and all Deliveries and Installation of goods and performance of
services by Seller shall be deemed to be only upon the terms and conditions of
this Agreement, unless modified terms are specifically agreed to in writing and
signed by an authorized representative of each party.
ARTICLE 17 TITLE AND RISK OF LOSS
17.1 TITLE. Title to each item of Equipment shall pass to Buyer upon
Acceptance. Prior to acquiring title to the Equipment, *
17.2 RISK OF LOSS. Risk of loss to each item of Equipment shall pass to Buyer
upon Acceptance; provided, however, that Buyer shall assume the risk of
loss prior to Acceptance for any Equipment (i) damaged by causes that
could have been prevented by the use of safety devices recommended by
Seller but declined by Buyer, (ii)
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damaged or stolen when such could have been prevented by security
measures pursuant to Buyer's responsibilities under Article 11, or (iii)
damaged by the failure of Buyer to provide and maintain the environmental
conditions set forth in Attachment G.
ARTICLE 18 INSURANCE
18.1 SELLER TO MAINTAIN. Seller shall maintain and keep in force all risk
insurance, in form and substance and with insurers reasonably
satisfactory to Buyer, covering all Equipment delivered to Buyer the risk
of loss to which has not passed to Buyer, and shall furnish Buyer with
proof that such insurance has been obtained and is in force.
18.2 BUYER TO MAINTAIN. Upon risk of loss passing to Buyer, Buyer shall
maintain and keep in force all risk insurance, in form and substance and
with insurers reasonably satisfactory to Seller, covering all Equipment
delivered to Buyer the title to which has not passed to Buyer, and shall
furnish Seller with proof that such insurance has been obtained and is in
force.
18.3 LEVEL OF INSURANCE. Seller shall at all times while performing services
on Buyer's premises carry insurance with limits not less than the limits
described as follows:
18.3.1 Employer's General Liability - Limits $1,000,000.
18.3.2 Comprehensive General Public Liability: $1,000,000 single
limit bodily injury and property damage combined; such
coverage shall include a broad form liability rider, completed
operations coverage rider and contractual liability rider.
18.3.3 An umbrella policy with $1,000,000 single limit bodily injury
and property damage combined.
18.3.4 Workmen's Compensation shall be maintained at least at the
level required by statute in the states in which seller is to
perform work under this Agreement.
18.4 CERTIFICATES OF INSURANCE. Each party shall provide, when requested to do
so by the other party, certificates of insurance (i) evidencing the
insurance to be carried under this Article 18, naming the other party as
an additional insured and (ii) including provisions that such insurance
policy shall not be subject to cancellation, expiration or reduction
without thirty (30) days written notice to the other party.
18.5 NO WAIVER. Notwithstanding the requirements as to the type and coverage
levels of insurance to be carried by each party, the insolvency,
bankruptcy or failure of any
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insurance company carrying insurance for either party, or failure of any
such insurance company to pay claims accruing, shall not be held to waive
any of the provisions of this agreement or relieve either party from any
obligations under this agreement.
ARTICLE 19 SOFTWARE; CONFIDENTIAL INFORMATION
19.1 SOFTWARE LICENSE. Subject to the limitations of this Agreement and
payment in full of the applicable license fee(s), Seller grants Buyer a
non-exclusive, nontransferable license to use Software (including
Software Updates, Software Enhancements and Software Features) delivered
to Buyer under this Agreement solely in conjunction with the operation of
the System. Any other intended use of the Software not specifically
authorized herein shall be subject to a separate licensing arrangement
between Seller and Buyer.
19.2 PAY-AS-YOU-GROW. Software required for operation of the Equipment,
Software Features and other optional Software are licensed on a "pay-as-
you-grow basis." Pay-as-you-grow fees are calculated in accordance with
the terms set forth in Attachment A. Buyer's right to continued use of
Software licensed on a pay-as-you-grow basis will be contingent *
The term of the license granted for each module of Software
delivered under this Agreement shall be specified in the order for the
Software. Payments under this Section 19.2 shall be subject to the
conditions precedent contained in Section 5.2.
19.3 OWNERSHIP OF SOFTWARE. Buyer acknowledges that the Software is the
property and confidential proprietary information of Seller, Seller's
suppliers, or third party licensors, title and ownership rights to
Software, including any reproductions, modifications or derivatives
thereof, shall remain at all times with Seller, Seller's suppliers, or
third party licensors, as applicable. Buyer may not sell, assign,
transfer, sublicense, or otherwise make available the Software to any
third party (except as provided herein) without the consent of the owner
of the Software, nor shall Buyer adapt or create any derivative work
using Software or decompile or reverse engineer the Software, without the
prior written consent of Seller. In no event may Buyer sell, assign,
transfer, license, or otherwise make available any of the Software to any
person not purchasing the System, without the consent of the owner of the
Software. Buyer may not copy or duplicate the Software, except that Buyer
may make one (1) copy of the Software solely for back-up or archival
purposes, provided that such copy bears such copyright or other
proprietary notices as are contained on the original copy (or as Seller
may reasonably require from time to time). Buyer shall not alter or
remove any copyright or other proprietary notices on or in copies of the
Software. Except as expressly permitted in this Article 19, Buyer agrees
not to disclose or cause to be disclosed the Software to any person other
than employees or contractors of Buyer duly authorized to use the
Software on Buyer's behalf and who have been informed by
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Buyer of the use and disclosure restrictions set forth herein.
19.4 HARDWARE LIMITATION. The Software supplied under this Agreement shall
not, without the prior written consent of the Seller, or the owner of the
Software if different from the Seller, be implemented on or used to
directly control hardware other than that purchased under this Agreement.
19.5 SOFTWARE TRANSFER. Buyer may transfer this Software license to any
subsequent purchasers of the System from Buyer without further approval
of Seller provided the subsequent purchasers are not direct competitors
of Seller and further provided the subsequent purchasers agree in a
writing delivered to Seller to assume Buyer's obligations set forth in
this Agreement relating to the Software.
19.6 SOFTWARE ENHANCEMENTS AND FEATURES. Software Enhancements or Software
Features may be ordered by Buyer at the prices set forth in Attachment A,
and if not therein set forth, at Seller's then current prices therefor.
Software Updates shall be provided to Buyer without charge during the
Warranty Period. Thereafter, Software Updates shall be made available to
Buyer pursuant to agreements for System Support Services.
19.7 CONFIDENTIALITY. The parties agree, except as may be required to comply
with any applicable law, regulation or order of any governmental or other
authority, to:
19.7.1 maintain, or cause to be maintained, the confidentiality of
Confidential Matters of the other party and not disclose, or
permit to be disclosed, any such Confidential Matters, unless
authorized in writing by such other party;
19.7.2 not use, or permit to be used, any such Confidential Matters,
except in accordance with the scope of this Agreement;
19.7.3 restrict, or cause to be restricted, disclosure of such
Confidential Matters to those officers, employees and agents who
need to know such Confidential Matters in the performance of work
relating to the subject matter of this Agreement (it being
understood that such officers, employees and agents shall be
informed of the confidential nature of such Confidential Matters
and shall be directed to treat such Confidential Matters
confidentially and not use such Confidential Matters other than
for the purpose described above); and
19.7.4 take precautions necessary or appropriate to guard the
confidentiality of such Confidential Matters.
19.8 DISCLOSURE UNDER ORDER. In the event that any party hereto becomes
obligated to disclose Confidential Matters pursuant to an order of any
governmental or other authority, such party shall seek a protective order
or other appropriate remedy that will
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permit such party to avoid such disclosure. In the event that such
protective order or other remedy is not obtained, such party will
disclose only that portion of the Confidential Matters as it is obligated
to disclose pursuant to such order, and will use all reasonable efforts
to obtain assurances that confidential treatment will be accorded to any
Confidential Matters so disclosed.
19.9 INJUNCTIVE RELIEF. Notwithstanding the provisions of Article 23 of this
Agreement, the parties agree that Buyer or Seller may enforce provisions
of this Article 19 by an action for injunctive relief or other equitable
remedies.
19.10 NO IMPLIED LICENSE GRANT. Except as expressly provided herein, nothing
contained in this Agreement shall be construed or deemed to grant, either
directly or indirectly or by implication, any license under any existing
or future intellectual property rights of Seller.
ARTICLE 20 TAXES
20.1 SALES AND USE TAX COLLECTION BY SELLER. The amounts to be paid by Buyer
under this Agreement do not include any state or local sales, use, excise
or personal property taxes, however designated, that may be levied or
assessed on Deliverables, including, but not limited to, services. With
respect to such taxes, Buyer shall either furnish Seller with an
appropriate exemption certificate applicable thereto or pay to Seller,
upon presentation of invoices therefor, such amounts thereof as Seller
may by law be required to collect or pay. Where Buyer able, Buyer intends
to obtain a direct pay certificates enabling Buyer to pay all sales and
use taxes directly to the applicable taxing authority; and if buyer is
able to obtain such certificates, Buyer shall furnish such to Seller. In
those instances where Buyer assumes the obligation to pay sales, use,
excise personal property taxes directly to a taxing authority because
buyer possesses a direct pay certificate, Seller agrees that Buyer shall
be entitled to finance all such tax amounts under the vendor financing
agreement described in Section 12.22 and all such tax amounts shall be
treated as though they had been collected by Seller.
In addition to the foregoing, *
for any property taxes incurred by with respect to the
Equipment and Software following Installation of such Equipment or
Software but prior to the passage of title thereof to *
including, but not
limited to, those relating to franchise, net or gross income or revenue,
license, occupation, other real or personal property, and fees relating
to importation of the Equipment and Software.
20.2 SALES, USE AND PROPERTY TAX MINIMIZATION. Seller acknowledges that Buyer
wishes to minimize the amounts of sales, use, excise and property taxes
to be paid by Buyer. Seller agrees to assist Buyer with its tax
minimization strategy. In furtherance of this tax minimization strategy,
where sales, use, excise or personal property taxes can be
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reduced or eliminated because of the method by which Seller delivers or
prices Deliverables to Buyer (e.g., delivering Software electronically
rather than via magnetic storage medium), Seller agrees to employ such
tax minimizing delivery method, when and if requested to do so by Buyer.
20.3 REFUNDS OF OVERPAYMENTS AND INTEREST. *
20.4 SELLER TO ASSIST BUYER IN SEEKING REFUNDS. In the event Buyer believes
that it is entitled to a refund or judicial review of all or a portion of
the sales, use, excise or personal property taxes paid by Buyer on
purchases made under this Agreement, then Seller agrees to provide all
commercially reasonable assistance requested by Buyer of Seller in
obtaining such refund or judicial review. Seller's assistance with such
matters shall include, but not be limited to: (i) assigning all of
Seller's rights, if any, to a claim of refund; (ii) completing and
processing any documents and forms necessary to request or effect a
refund or judicial review; and (iii) providing Buyer will all relevant
information requested by Buyer in connection with Buyer's claim of a
refund or request for judicial review. If Seller can provide such
assistance at a nominal cost to Seller, then Seller shall bear the burden
of such additional cost. If Seller cannot provide such assistance at a
nominal cost to Seller, then Seller shall provide Buyer with an estimate
of the cost of such assistance. Buyer can elect to pay Seller for such
assistance or forego having Seller assist with Buyer's request.
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ARTICLE 21 INDEMNIFICATION AND LIMITATION OF LIABILITY
21.1 INDEMNIFICATION. Seller and Buyer agree to indemnify and hold each other
harmless from and against all claims, demands or causes of action brought
against the other for injury to persons (including death), or loss or
damage to tangible property (including reasonable legal fees) resulting
from the intentional or negligent acts or omissions, or strict liability,
of either party, its officers, agents, employees, or subcontractors in
the performance of this Agreement. If Seller and Buyer jointly cause
such losses, claims, demands, damages, or causes of action, the parties
shall share the liability in proportion to their respective degree of
causal responsibility.
21.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN
NO EVENT, WHETHER AS A RESULT OF BREACH OF CONTRACT, WARRANTY, TORT
(INCLUDING BUT NOT LIMITED TO NEGLIGENCE OR INFRINGEMENT), SHALL SELLER
OR BUYER BE LIABLE UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL OR
INCIDENTAL DAMAGES OF ANY NATURE WHATSOEVER, INCLUDING LOST PROFITS OF
THE OTHER PARTY, BEFORE OR AFTER ACCEPTANCE, WHETHER OR NOT SUCH DAMAGES
ARE FORESEEABLE OR WHETHER A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES.
21.3 INDEMNITY FOR PRODUCT LIABILITY. Notwithstanding anything contained
herein to the contrary, Seller agrees to defend and indemnify Buyer, its
officers, agents and employees, from and against any damages, claims,
demands, liabilities and expenses (including reasonable attorneys' fees)
that arise out of or result from the death or bodily injury to, or damage
to property of any third party resulting solely from a defect in a
product delivered by Seller except to the extent the defect is in a
design or specification provided by Buyer. Seller shall pay all costs,
damages and reasonable attorneys' fees that a court awards as a result of
such claim provided that: (i) Seller has sole control of the defense and
related settlement negotiations; (ii) Buyer provides Seller with
assistance, information and authority reasonably necessary for Seller to
perform its obligations under this Section 11.3 and (iii) Buyer notifies
Seller in writing within thirty (30) days of the discovery of the claim.
Seller shall not be responsible for any settlement made without its
consent. The word "products" as used in this Section 21.3 shall not be
deemed to include any Handsets.
ARTICLE 22 INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT
22.1 Seller agrees that it will defend, at its own expense, all suits and
claims against Buyer for infringement or violation of any patent,
trademark, copyright, trade secret, or other intellectual property rights
of any third party (collectively, "Intellectual Property Rights"),
covering, or alleged to cover, the Equipment, Software, or the System or
any component thereof, in the form furnished or as subsequently modified
by Seller, and
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Seller agrees that it will pay all sums, including, without limitation,
attorneys' fees and other costs, which, by final judgment or decree, or in
settlement of any suit or claim, may be assessed against Buyer on account
of such infringement or violation, provided (a) Seller shall be given
prompt written notice of all claims of any such infringement or violation
and of any suits or claims brought or threatened against Buyer or Seller
of which Buyer has express knowledge, and Seller shall be given full
authority to assume control of the defense thereof through its own counsel
at its expense and to compromise or settle any suits or claims so far as
this may be done without prejudice to the right of Buyer to continue the
use, as contemplated, of the Equipment, the Software or the System or any
component thereof so furnished; and (b) Buyer shall cooperate fully with
Seller in the defense of such suit or claims and provide Seller such
assistance as Seller may reasonably require in connection therewith.
22.2 If in any such suit so defended, all or any part of the Equipment,
Software, or the System, or any component thereof is held to constitute an
infringement or violation of any other person's Intellectual Property
Rights and its use is enjoined, or if in respect of any claim of
infringement or violation Seller deems it advisable to do so, Seller shall
at its sole option take one or more of the following actions *
22.3 Seller's obligations under this Article 22 shall not apply to any
infringement or violation of Intellectual Property Rights caused by
modification of the Equipment or Software by other than Seller or Seller's
authorized contractor or any infringement caused solely by Buyer's use of
the Equipment other than in accordance with the Specifications and the
purposes contemplated by this Agreement, except as expressly authorized or
permitted by Seller. Buyer shall indemnify Seller against all liability
and costs, including reasonable attorney's fees, for defense and
settlement of any and all claims against Seller for infringements or
violations based upon the foregoing.
22.4 THE REMEDIES STATED IN THIS ARTICLE 22 SHALL BE THE PARTY'S EXCLUSIVE
REMEDIES FOR INFRINGEMENT OR VIOLATION OF ANY INTELLECTUAL PROPERTY
RIGHTS.
ARTICLE 23 DISPUTES
23.1 THIRD PARTY ENGINEER. If there is a disagreement relating to installation
and
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Acceptance of Equipment and Software, or equipment performance or other
similar technical-based issue, the parties will attempt to negotiate a
solution within fourteen (14) days of notification of such disagreement.
If no solution can be reached, the parties shall select a third party
engineer ("Third Party Engineer") (whose fees and expenses will be shared
equally by Buyer and Seller) who will, after conducting such examination
or testing as he/she deems necessary, render a decision in the matter by
stating whether the Equipment, Software or Installation in question shall
be Accepted. The third party engineer shall be selected from the list of
third party engineers set forth in Attachment R, in the order of
appearance. If none of the candidates set forth in Attachment R are able
to serve and if the parties are unable to agree on the selection of a
substitute the Third Party Engineer within five (5) working days, the
Third Party Engineer will be selected by the then President of the
Institute of Electrical & Electronics Engineers.
The Third Party Engineer's decision shall be final and binding and
neither party shall appeal or otherwise contest it, where the matter at
dispute is ten million dollars ($10,000,000) or less in value. Once a
Third Party Engineer is selected for resolving a dispute, he or she shall
be selected for the resolution of any further disputes hereunder relating
to Installation and Acceptance unless otherwise agreed to by both parties
or unless The Third Party Engineer refuses to continue to serve in that
function.
Upon request by either Buyer or Seller, the Third Party Engineer, in
resolving any dispute, shall render a written report concerning the facts
of the dispute, the resolution thereof and the reasoning behind the
resolution. The Third Party Engineer shall be instructed that it is the
desire of the parties to reach resolution in the matter with dispatch. In
rendering a decision, the Third Party Engineer shall impartially evaluate
the facts and circumstances of the claim. The parties shall cooperate in
supplying the Third Party Engineer with information requested and shall
certify the accuracy of the information supplied.
23.2 ARBITRATION OF DISPUTES. Any controversy or claim arising out of or
relating to this Agreement for the breach hereof which cannot be settled
by the parties except for (i) disputes to be settled by a Third Party
Engineer under Section 23.1, or (ii) action for equitable relief under
Articles 19 or 28 that shall be resolved as provided therein, shall be
settled by arbitration in accordance with the commercial arbitration
rules of the American Arbitration Association as set forth herein.
23.2.1 SELECTION OF ARBITRATORS. Each party may select one arbitrator.
Selection shall be completed within ten (10) days of the receipt
of a demand for arbitration. If either party fails to select an
arbitrator within such ten (10) day period, the one selected
shall act as sole arbitrator. If two (2) arbitrators have been
selected, the two arbitrators selected shall select a third
within fifteen (15) days after their selection. If they fail to
do so, the third arbitrator shall be selected by the American
Arbitration Association. The arbitrators
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shall set a date of hearing no later than sixty (60) days from the
date all arbitrators have been selected.
23.2.2 LANGUAGE. All proceedings shall be conducted in the English
language.
23.2.3 LOCATION. The arbitration shall take place at a location to be
agreed upon by the parties. if the parties are unable to agree,
the arbitrators shall select a location in the District of
Columbia or the Counties of Arlington or Fairfax, Virginia for the
arbitration.
23.2.4 FRCP TO APPLY. In any such arbitration proceeding the arbitrators
shall adopt and apply the provisions of the Federal Rules of Civil
Procedure relating to discovery so that each party shall allow and
may obtain discovery of any matter not privileged which is
relevant to the subject matter involved in the arbitration to the
same extent as if such arbitration were a civil action pending in
a United States District Court; provided, however, that each party
shall be entitled to no more than four (4) depositions upon oral
examination of no more than one (1) day in length each.
23.2.5 FINAL AWARD. The award of any arbitration shall be final,
conclusive and binding on the parties hereto.
23.2.6 REMEDY. The arbitrators may award any legal or equitable remedy.
The arbitration award shall include an award of attorney's fees,
in the amount of such fees, to the prevailing party. Judgment upon
any arbitration award may be entered and enforced in any court of
competent jurisdiction.
23.2.7 INJUNCTIVE RELIEF. Either party to an arbitration hereunder may
bring an action for injunctive relief against the other party if
such action is necessary to preserve jurisdiction of the
arbitrators or to maintain status quo pending the arbitrators
decision. Any such action called pursuant to this Section shall be
discontinued upon assumption of jurisdiction by the arbitrators
and their opportunity to consider the request for equitable relief
pending final decision in the arbitration.
ARTICLE 24 TERMINATION AND DEFAULT
24.1 TERMINATION BY BUYER. The rights of the parties upon termination by Buyer
shall be as provided below.
24.1.1 CIRCUMSTANCES OF TERMINATION. Buyer may, upon written notice to
Seller, terminate this Agreement in whole or in part, at its
option, without penalty:
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24.1.1.1 If the initial configuration in general, as opposed to
base station configuration equipment at a specific site,
(other than by the fault of Buyer or due to an event
specified in section 10.3) has been rightfully rejected by
Buyer and has not thereafter been Accepted *
or *
24.1.1.2 If Seller fails to perform its obligations under section
22.2 and such failure results in a judicial imposition of
legal damages or injunctive relief upon Buyer.
24.1.1.3 Seller fails to meet its schedule as defined in
attachment H and the liquidated damages provided in section
10.1 have reached the maximum amount specified therein.
24.1.1.4 Seller fails to meet its schedule as defined in
Attachment H as a result of excusable delay under section
10.3, *
Notwithstanding the foregoing, *
24.1.1.5 BANKRUPTCY. Seller (i) applies for or consents to the
appointment of, or the taking of possession by a receiver,
custodian, trustee, or liquidator of itself or of all or a
substantial part of its property, (ii) makes a general
assignment for the benefit of its creditors, (iii)
commences a voluntary proceeding under the federal
bankruptcy code or under any other law relating to relief
from creditors generally, or (iv) fails to contest in a
timely or appropriate manner, or acquiesces in writing to,
any petition filed against it in an involuntary proceeding
under the bankruptcy code or under any other law relating
to relief from creditors generally, or any application for
the appointment of a receiver, custodian, trustee, or
liquidator of itself or of all or a substantial part of its
property, or its liquidation, reorganization, dissolution,
or winding-up.
24.1.2 RIGHTS OF BUYER IN CASE OF TERMINATION. In the event Buyer
terminates this Agreement in accordance with this section 24.1,
Buyer may, at its option, return to Seller, freight collect, in
all or in part such equipment
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delivered but not yet accepted (as acceptance is described in
sections 5.3 AND 5.4), in which event Seller shall refund to
Buyer all amounts paid to Seller under this Agreement and shall
compensate Buyer for the cost of removal.
24.2 TERMINATION BY BUYER FOR MATERIAL BREACH BY SELLER. The rights of the
parties upon termination by Buyer where Seller shall be in material
breach of the Agreement shall be as provided below.
24.2.1 UNCURED BREACH. Buyer may, at its option and upon written notice
to Seller, terminate this Agreement (or any order issued pursuant
to this Agreement) in whole or in part, if Seller is in default
under any material terms of this Agreement, other than those
specified in section 24.1.1.1 and section 24.1.1.2, and action to
correct such default is not commenced within sixty *
cannot complete such cure within such period for reasons beyond
its control and Seller is continuing to diligently pursue the
cure, in which case such default shall be cured no later than
24.2.2 RETURN. In the event Buyer terminates this Agreement (or an
order) in accordance with section 24.2.1, Buyer may at its option
return to Seller, freight collect, any specific items of
equipment delivered or software installed which is the subject of
the default above, in which event Seller shall refund to Buyer
all amounts paid to Seller under this Agreement with regard to
such equipment, software and the installation thereof and shall
compensate Buyer for the cost of removal.
24.2.3 EXCLUSIVE REMEDY. Except as expressly provided elsewhere in this
Agreement, the remedies provided in sections 24.1 and 24.2 shall
be Buyer's exclusive remedies in case of termination for default.
24.3 TERMINATION BY SELLER. Seller may terminate this Agreement (or any order
issued pursuant to this agreement), in whole or in part, without any
obligation to deliver equipment, software or services not yet delivered,
or, at its option, temporarily suspend its performance, without
liability, under this Agreement or the system support Agreement or the
order, in the event that:
24.3.1 DEFAULT. Buyer is in material default under this Agreement,
except as provided for in section 24.3.3 and correction is not
commenced *
or such other length
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of time as mutually agree to by the parties; or *
24.3.2 FINANCING. Buyer is in material default under any loan or
financing agreement entered into with Seller, and Seller has
provided Buyer with notice of such default and correction is not
commenced within *
or such other length of time as mutually agreed to by
the parties; or *
24.3.3 CONFIDENTIALITY. Buyer materially breaches any confidentiality
agreement with Seller, including the provisions of Article 19, and
Seller, while reserving all other remedies available under this
Agreement for such a breach, has provided Buyer with notice of
such breach; or *
24.3.4 BANKRUPTCY. Buyer (i) applies for or consents to the appointment
of, or the taking of possession by a receiver, custodian, trustee,
or liquidator of itself or of all or a substantial part of its
property, (ii) makes a general assignment for the benefit of its
creditors, (iii) commences a voluntary proceeding under the
federal bankruptcy code or under any other law relating to relief
from creditors generally, or (iv) fails to contest in a timely or
appropriate manner, or acquiesces in writing to, any petition
filed against it in an involuntary proceeding under the bankruptcy
code or under any other law relating to relief from creditors
generally, or any application for the appointment of a receiver,
custodian, trustee, or liquidator of itself or of all or a
substantial part of its property, or its liquidation,
reorganization, dissolution, or winding-up.
24.4 CONTINUING OBLIGATIONS IN EVENT OF TERMINATION. Except as provided in
sections 24.1 and 24.2, if either party terminates this agreement,
Seller's obligations hereunder with respect to equipment previously
delivered, installed and not returned, and Buyer's obligations with
respect to payments for accepted equipment not returned, shall continue
in full force and effect.
ARTICLE 25 ADVERTISING
Neither Seller nor Buyer shall publicly advertise or, except as required by law,
publish information concerning the entry into, execution or delivery of this
Agreement, its nature, or the terms and conditions hereof, without the other
party's prior written consent; provided, however, that Seller or its parent
company may refer generally to Seller's performance of this Agreement in its
annual report to shareholders.
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ARTICLE 26 LATE PAYMENTS
26.1 PAST DUE PAYMENTS. Any payment not made * shall be subject to
a late payment charge applied against the unpaid portion of the charge.
The late payment charge shall be applied daily after the due date until
payment is received. The daily late payment charge shall be calculated by
multiplying the outstanding balance for the day by that certain quotient,
*
Any payments more than *
shall be considered a Seller's right to terminate under Section
24.3, except where such sums are in dispute as provided in Section 26.2.
26.2 DISPUTED PAYMENTS. Should Buyer dispute any sums due to Seller under this
agreement, Buyer shall pay, in accordance with the terms and conditions
of this agreement, all amounts not in dispute. Buyer shall not be liable
to Seller for late payment charges for the amounts paid to seller when
the dispute is resolved. If the sum is dispute (or the cumulative sums in
multiple ongoing disputes) exceeds five million dollars ($5,000,000)
Seller may require Buyer to deposit the amount in dispute into as escrow.
The escrow shall be treated for federal income tax purposes as a grantor
trust by Buyer. In this event, the interest earned in the escrow account
and the fees in establishing and maintaining the escrow account shall be
divided by the parties in proportion to the resolution of the disputed
sum, provided, however, that Buyer/Seller shall receive on an annual
basis a distribution from the escrow equal to the product of the accrued
interest income and Buyer's/Seller's marginal combined federal and state
income tax rate.
ARTICLE 27 COVENANT NOT TO RECRUIT
Buyer and Seller shall not solicit and/or hire any employees of the other party
or any of its affiliates who are assigned to perform work on the project, during
the period of such assignment and for * thereafter, without the
express written consent of employing party.
ARTICLE 28 ASSIGNMENT AND EQUITABLE REMEDIES
28.1 ASSIGNMENTS. Neither party may assign this agreement or any of its rights
or obligations hereunder, without obtaining the prior written consent of
the other party, such consent not to be unreasonably withheld.
notwithstanding anything to the contrary contained in the foregoing
sentence, either party may assign this agreement and any of its rights or
obligations hereunder to an affiliate of such assigning party without
obtaining the prior written consent of the non-assigning party, provided,
however, that the assigning party shall provide the non-assigning party
with no less
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than * of any such assignment. In the event of an
assignment by seller to a non-affiliate, and upon request of Buyer,
Seller shall provide a written guarantee of the timely performance of the
assigned duties and responsibilities hereunder.
28.2 EQUITABLE REMEDIES. Not withstanding the provision of article 23 of this
Agreement, the parties agree that seller may enforce provisions of this
article 28 regarding assignment by an action for injunction or other
equitable remedies.
ARTICLE 29 NOTICES
29.1 METHOD OF GIVING NOTICE. Any notice required under this Agreement shall
be given in writing by hand delivery, registered mail (return receipt
requested), or overnight courier to the appropriate party at the
following addresses:
If to Buyer:
OMNIPOINT COMMUNICATIONS INC.
49 Old Bloomfield Road
Mountain Lakes, NJ 07046
Attention: Vice President/Chief Financial Officer
If to Seller:
ERICSSON INC.
Radio Systems
740 E. Campbell Rd.
Richardson, TX 75081
Attention: General Counsel
29.2 CHANGE IN ADDRESS. Either party may change the address to which notice to
it shall be sent by notifying the other party of the change and the new
address on thirty (30) days notice given in accordance with this article.
29.3 EFFECTIVE UPON RECEIPT. Notice given under this Article 29 shall be
deemed to have been given upon receipt by the other party.
ARTICLE 30 AUTHORITY AND COMPLIANCE WITH LAWS
30.1 APPROVALS. Buyer and Seller represent and warrant that (a) all necessary
approvals and authority to enter into this agreement and bind the parties
have been obtained, (b) the person executing this agreement on behalf of
Buyer or Seller has express authority
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to do so and, in so doing, to bind Buyer or Seller hereto, and (c) the
execution of this Agreement by Buyer or Seller does not violate any
provision of any by-law, charter, regulation or any other governing
authority of such party. Each party agrees to furnish the other with such
documents as either party may reasonably request showing proof of
authority in accordance with this Article.
30.2 COMPLIANCE WITH LAW. Buyer and seller shall comply with all applicable
laws in the performance of this agreement, including the laws and
regulations of the united states department of commerce and state
department and any other applicable agency or department of the united
states regarding the export or re-export of products or technology; and
(b) indemnify each other for any loss, liability or expense incurred as
the result of breach of this section 30.2.
ARTICLE 31 HEADINGS AND PLURALS
31.1 SECTION HEADINGS. The headings given to the articles and sections
contained herein are inserted only for convenience and are in no way to
be construed as or constitute a limitation of the scope of the particular
article or section to which the title refers.
31.2 PLURALS. Any reference herein to singular shall mean plural and vice
versa as the context may so require.
ARTICLE 32 GOVERNING LAW; SEVERABILITY
THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND GOVERNED
BY THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO
PRINCIPLES OF CONFLICTS OF LAW THEREOF. Whenever possible, each provision of
this Agreement shall be interpreted in such a manner as to be effective and
valid under such applicable law, but, if any provision of this Agreement shall
be held to be prohibited or invalid in any jurisdiction, the remaining
provisions of this Agreement shall remain in full force and effect and such
prohibited or invalid provisions shall remain in effect in any jurisdiction in
which it is not prohibited or invalid.
ARTICLE 33 NO WAIVER
The failure of either party to insist, in any one or more instances, upon the
performance of any of the terms, covenants or conditions of this Agreement, or
to exercise any right hereunder, shall not be construed as a waiver or
relinquishment of the future performance of any such terms, covenants, or
conditions or the future exercise of such right, and the obligation of the other
party with respect to such future performance shall continue in full force and
effect.
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ARTICLE 34 ENTIRETY OF AGREEMENT; NO ORAL CHANGES
This Agreement and the Attachments referenced herein constitute the entire
Agreement between the parties with respect to the subject matter hereof, and
supersedes all proposals, oral or written, all previous negotiations, and all
other communications between the parties with respect to the subject matter
hereof. No modifications, alterations or waivers of any provisions herein
contained shall be binding on the parties hereto unless evidenced in writing
signed by duly authorized representatives of both parties as set forth in
Article 16.
ARTICLE 35 ATTACHMENTS AND INCORPORATION
35.1 INCORPORATION. The following documents attached hereto, are
hereby incorporated by reference herein, and made a part of this
agreement with the same force and effect as though set forth in their
entirety herin (such documents together with this agreement are herein
referred to as the "Agreement").
Attachment A-1 Equipment List and Itemized Price List (Unit
Prices)
Attachment A-2 Pricing Assumptions
Attachment A-3 Not Included Items (Options)
Attachment B Operations Support System Software License and
Support Services
Attachment C Professional Services
Attachment D System Support Services
Attachment E CMS 40 Documentation
Attachment F Responsibility Matrix
Attachment G Environmental Conditions
Attachment H Time Schedule
Attachment I Radio Network Design
Attachment J Acceptance Tests/Certificate
Attachment K CMS 40 R1 Features and R2 Planned Features
Attachment L Order Cancellation Policy
Attachment M CMS 40 Technical and Functional Specifications
Attachment N Intentionally Omitted
Attachment O Support Organization
Attachment P Intentionally Omitted
Attachment Q Technical Education
Attachment R Third Party Engineers
Attachment S Order & Delivery Intervals
Attachment T Reimbursement Policy
35.2 ORDER OF PRIORITY. In the event of any conflict or inconsistency
among the provisions of this agreement and the documents attached and
incorporated herein, such conflict or inconsistency shall be resolved, by
giving precedence to this
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Agreement and thereafter to the Attachments.
ARTICLE 36 COUNTERPARTS
This Agreement may be executed in two counterparts, each of which shall be
deemed an original, but both of which together shall constitute one and the same
instrument.
In Witness Whereof, the parties have executed this Agreement as of the date
first written above.
ERICSSON INC. OMNIPOINT COMMUNICATIONS INC.
By: /s/ Bo Hedfors By /s/ George F. Schmitt
--------------------- ----------------------------
Name: Bo Hedfors Name: George F. Schmitt
------------------- -------------------------
[Print] [Print]
Title: President Title: President
__________________ _________________________
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ATTACHMENTS
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<C> <S>
Attachment A Pricing
Attachment B Operations Support System Software License and Support Services
Attachment C Professional Services
Attachment D System Support Services
Attachment E CMS 40 Documentation
Attachment F Responsibility Matrix
Attachment G Environmental Conditions
Attachment H Time Schedule
Attachment I Radio Network Design
Attachment J Acceptance Tests/Certificate
Attachment K CMS 40 R1 Features and R2 Planned Features
Attachment L Order Cancellation Policy
Attachment M CMS 40 Technical and Functional Specifications
Attachment N Intentionally Omitted
Attachment O Support Organization
Attachment P Intentionally Omitted
Attachment Q Technical Education
Attachment R Third Party Engineers
Attachment S Order & Delivery Intervals
Attachment T Reimbursement Policy
</TABLE>
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*CONFIDENTIAL INFORMATION;
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*CONFIDENTIAL INFORMATION;
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ATTACHMENT A-18
*CONFIDENTIAL INFORMATION; ACQUISITION AGREEMENT
HAS BEEN OMITTED AND FILED #9107
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*
1
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ATTACHMENT A-20
*CONFIDENTIAL INFORMATION; IS-661 PRICING
HAS BEEN OMITTED AND FILED --------------
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*
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*CONFIDENTIAL INFORMATION; Attachment A-21
HAS BEEN OMITTED AND FILED ---------------
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AGREEMENT 9107
OMNIPOINT COMMUNICATIONS INC.
ATTACHMENT B
OSS SUPPORT
1. Hardware Support
----------------
Any third party hardware equipment purchased through Seller for use in the
Buyer's OSS application shall be warranted * during
the Warranty Period. Buyer may purchase at the completion of the Warranty
Period an Extended Hardware Maintenance Agreement from Seller, or other
post-warranty support from the third party providing the OSS hardware. The
prices Seller charges for Extended Hardware Maintenance support are set
forth in Exhibit I to this Attachment B. Should additional third party
hardware purchased through Seller be added to the OSS system subsequent to
the initial installation, the equipment Extended Hardware Maintenance
Agreement may be amended to include the new equipment.
2. Software Support
----------------
2.1 Buyer shall receive and be licensed to use all OSS Software
Enhancements during the Warranty Period. For purposes of this
Attachment B, "Software Enhancements" means modifications or
improvements made to the System software, but not including new
software features, which improve performance or capacity of the
software but which are not necessary to ensure that the software
operates according to the original specification.
2.2 During the Warranty Period, Seller will provide: (i) assistance in the
implementation of new OSS Software purchased by Buyer; (ii) 24-hour
telephone assistance; (iii) fault tracking reporting and resolution;
and (iv) emergency software patches when required.
2.3 After expiration of the Warranty Period, Buyer may purchase the
support services described in paragraphs 2.1 and 2.2 above at the
prices set forth in Exhibit I to this Attachment B.
3.4 Upon request by Buyer, Seller shall make available on-site technical
assistance at Seller's standard rate then in effect.
3. Limits on Support Services
--------------------------
The parties agree that the limitations set forth in Section 13.6 of the
Acquisition Agreement to which this Attachment B is made a part shall apply
to the warranty and post-warranty support obligations of Seller. In
addition, Seller may, without liability to Buyer, terminate, or suspend
performance of, provisions of the Support Services affected if, in Seller's
reasonable judgment:
-1-
<PAGE>
(a) The System is not maintained to two (2) revisions prior to the
latest OSS Software Release level; or
(b) Seller is not provided access to the System and to such
information and facilities as Seller may reasonably require in
order to provide the Support Services;
4. Support Responsibilities of Seller
----------------------------------
4.1 Seller may access OSS equipment and software for the purposes of
providing support services under the following conditions:
(i) Seller shall notify Buyer in advance with a Work Order of the purpose
of the work.
(ii) Seller shall notify Buyer at least forty-eight (48) hours in advance
and in writing of changes to NIS tables and X.25 addresses.
(iii) Seller shall notify the Buyer in writing with a Work Report within
forty-eight (48) hours after completing any modifications made to
Buyer files that involve the following:
. changes to .cshrc,.login, NIS tables and any file in the /etc
director
. changes to root directory structure
. changes to disk mounts
. changes to the OSS Authority database
. changes to the OSS X.25 control tables
. changes to installed software provided by Seller
. addition and removal of OSS userids
. changes to IOG11 parameters
. changes to Unix partitions
. changes to Unix kernel
(iv) Seller shall notify the Buyer at least twenty-four (24) hours in
advance of any network operations Buyer needs to perform to fulfill
the Work Order. Network operations include but are not limited to:
scheduling of network measurements and recordings, modifications to
network configurations, collection of network configuration
printouts.
4.2 Seller shall always use the same maintenance user identification with
root privileges provided by the Buyer to perform the operations
listed in paragraph 4.1(iii).
5. Support Responsibilities of Buyer
---------------------------------
5.1 Buyer shall perform system management operations on systems provided
by Seller according to practices outlined in the documentation
provided by Seller or communicated in writing by Seller from time-to-
time.
-2-
<PAGE>
5.2 Buyer shall notify Seller of any of the following changes performed on
systems provided by Seller:
. changes made to NIS tables (includes host names and TCP/IP
addresses falling under files provided by Seller)
. changes made to files in /etc directory
. changes to .cshrec, login of default userids provided by Seller
. changes to root directory structure
. changes to disk mounts
. changes to the OSS Authority Database for default userids
. changes to the OSS Authority Database structure of authority
. changes to the OSS X.25 control tables
. changes to installed software provided by Seller
. removal of default userids provided by Seller
. changes to IOG11 parameters
. changes to Unix partitions on machines running systems provided by
Seller
. changes to Unix kernel on machines running systems provided by
Seller
. installation of additional software on Assets provided by Seller
5.3 Buyer shall provide to Seller access to the maintenance user
identification, including outside normal working hours.
5.4 Buyer shall enable remote modem access to Seller on a 7 day/24 hour
availability basis.
5.5 Buyer shall perform routine hardware preventative maintenance
and cleaning, and prior to requesting support from Seller, Buyer shall
comply with all published operating and troubleshooting procedures. If
such efforts are unsuccessful in eliminating the malfunction, Buyer
shall promptly notify Seller of the malfunction.
5.6 Buyer shall regularly back up data to the extent the OSS
hardware and software permits.
5.7 Buyer shall provide Seller with (i) reasonable and safe access
to OSS systems; (ii) adequate working space and facilities at the
Installation Address; (iii) access to and use of all facilities of
Buyer necessary for Seller or its representatives to provide support
services; and (iv) cooperation in maintaining a site activity log.
6. The examination, replacement, and handling of hardware components can be
hazardous. All related support tasks should be performed by qualified
service personnel with the appropriate technical training and experience to
recognize these hazards (e.g., electrostatic discharge) and observe all
protection procedures and precautions. Buyer agrees to use qualified
service personnel or to employ adequate safety precautions in the
performance of its obligations hereunder.
-3-
<PAGE>
ATTACHMENT B
ACQUISITION AGREEMENT #9107
OMNIPOINT COMMUNICATIONS INC.
EXHIBIT 1
TO
ATTACHMENT B - OSS SUPPORT
OSS MAINTENANCE FEES
Software Support
- ----------------
Following the Warranty Period described herein and in the Acquisition Agreement,
a fifteen percent (15%) percent maintenance fee shall be applied to all OSS
Software Buyer Fees, including pay-as-you-grow fees.
Hardware Support
- ----------------
Seller offers the Silver SunSpectrum Support Service as its SUN Hardware Support
solution. This hardware support service includes the following:
. 7x24 on-site response and telephone assistance
. Four-hour, on-site response is provided for Urgent problems
<TABLE>
<CAPTION>
PRICING
- ------------------------------------------------------------------------------
MODEL 7X24 SUPPORT/UNIT/MONTH
- ------------------------------------------------------------------------------
<S> <C>
SPARCstation 4 $ 75.00
- ------------------------------------------------------------------------------
SPARCstation 5 $120.00
- ------------------------------------------------------------------------------
p- 20 $180.00
- ------------------------------------------------------------------------------
SPARCsystem 1000 $228.00
- ------------------------------------------------------------------------------
SPARCprinter II $ 40.50
- ------------------------------------------------------------------------------
</TABLE>
. SUNSPECTRUM SILVER PROGRAM TRAVEL ZONE UPLIFTS*
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------
ZONE MILES CHARGE
- ------------------------------------------------------------------------------
<S> <C> <C>
A 0-50 None
- ------------------------------------------------------------------------------
B 51-100 MMC + 5%
- ------------------------------------------------------------------------------
C 101-150 MMC + 15%
- ------------------------------------------------------------------------------
D 151-250 MMC + 30%
- ------------------------------------------------------------------------------
E 251-300 MMC + 50%
- ------------------------------------------------------------------------------
</TABLE>
* Based on distance from nearest Sun Support Location
-4-
<PAGE>
OMNIPOINT CORPORATION ATTACHMENT C
---------------------
WIRELESS SERVICES ACQUISITION AGREEMENT #9107
-----------------
In witness hereof, all parties signed below are in agreement to the enclosed
Attachment C, Revision A, dated December 18, 1996.
ERICSSON INC. OMNIPOINT CORPORATION
/s/ Per Nachmanson /s/ Christopher Resavy
- ------------------------------------- ----------------------------------------
Per Nachmanson Christopher Resavy
Account Manager - Northeastern Region Senior Director of Engineering/Operations
/s/ Curt Gervelii
----------------------------------------
Network Engineer on behalf of Mr. Resavy
<PAGE>
ERICSSON
THE ALLIANCE
CUSTOMER SERVICES
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
SECTION DESCRIPTION PAGE
- ------- ----------- ----
<S> <C>
1. INTRODUCTION............................................................2
------------
2. PROFESSIONAL SERVICES...................................................3
---------------------
2.1 NETWORK PLANNING AND EXPANSION..........................................4
2.2 SYSTEM PERFORMANCE EVALUATION...........................................5
2.3 SYSTEM OPERATION CONSULTING.............................................6
2.4 NETWORK MANAGEMENT CONSULTING...........................................7
2.5 BUSINESS OPERATIONS CONSULTING..........................................8
3. IMPLEMENTATION & INTEGRATION SERVICES...................................9
-------------------------------------
3.1 SITE ACQUISITION.......................................................10
3.2 CIVIL CONSTRUCTION.....................................................11
3.3 SITE EQUIPMENT ENGINEERING.............................................12
3.4 EQUIPMENT INSTALLATION AND COMMISSIONING...............................13
3.5 SYSTEM OPTIMIZATION....................................................14
4. MAINTENANCE AND SUPPORT SERVICES.......................................15
--------------------------------
4.1 SYSTEM SUPPORT.........................................................16
4.2 SPARE PART MANAGEMENT SERVICE..........................................17
4.3 HARDWARE REPAIR........................................................18
4.4 OPERATION AND MAINTENANCE MANAGEMENT...................................19
4.5 OPERATION AND MAINTENANCE ASSISTANCE...................................20
4.6 CONFIGURATION MANAGEMENT...............................................21
4.7 NETWORK MANAGEMENT SYSTEM ADMINISTRATION...............................22
4.8 PERFORMANCE REPORT CUSTOMIZATION.......................................23
4.9 REMOTE NETWORK MONITORING..............................................24
4.10 REMOTE NETWORK OPERATIONS..............................................25
5. TRAINING SERVICES......................................................26
-----------------
5.1 CERTIFICATION PROGRAM..................................................27
5.2 COMPETENCE DEVELOPMENT PROGRAM.........................................28
</TABLE>
Page 1
<PAGE>
1. INTRODUCTION
------------
Choosing Ericsson as your Personal Communications Services
(wireless) vendor provides you with the latest in telecommunication
equipment, the CMS 40 system. Equally important to your business
is Ericsson's extensive line of customer service offerings.
Ericsson's turnkey services provided your customers with an
operational system as quickly as possible. Faster system
implementation time safeguards your infrastructure and facilitates a
quicker return on your investment.
Our Technical Support Center as well as our Regional Support
Organization provide you with the expertise, resources, and time
necessary to build, operate, and maintain your wireless network. In
addition, Ericsson offers several service and support options custom
tailored to address your system and subscriber needs. Whether you
require minimum involvement or maximum participation, Ericsson
provides the services critical in handling your network operations.
This document presents a variety of services such as, Professional
Services, Implementation and Integration Services, Maintenance and
Support Services as well as Training Services.
Ericsson is committed to providing value added service offerings to
our customers, which in turn establishes a long-term, mutually
beneficial business relationship. Please feel free to discuss any
of the specific service requirements with your Ericsson Services
Sales Manager.
Page 2
<PAGE>
2. PROFESSIONAL SERVICES
---------------------
As a leading supplier of wireless system infrastructure, Ericsson
has developed proven expertise in value added Professional Service
offerings. The Ericsson Alliance works with you to define specific
characteristics for a new or expanded wireless network. Detailed
reviews of system performance and strategic recommendations for
network planning and expansion are a few of the many service
offerings available to you.
Ericsson analyzes your business and systems operations to reduce
costs and improve system performance. In addition, Ericsson's
experienced personnel works with you to review and improve internal
processes and competence by providing customized solutions for
business and system operations.
The following sections highlight individual Professional Service
offerings, please feel free to discuss any of your service
requirements with your Ericsson Services Sales Manager.
Page 3
<PAGE>
2.1 NETWORK PLANNING AND EXPANSION
Network Planing and Expansion provides initial radio frequency (RF)
design, network dimensioning, and expansion planning for wireless
systems. This service can be provided with customer defined levels
of Ericsson support or as a total turnkey design.
KEY FEATURES AND BENEFITS
-------------------------
. Provides quick time to market of wireless service for your
customers.
. Provides proven capabilities to ensure a quality system design.
. Provides a network platform for future expansion that adapts to
new technologies and customer demands.
DESCRIPTION OF SERVICE
----------------------
Ericsson's Network Planning and Expansion Service provides you with
plans and/or recommendations on initial development or systematic
expansion of your wireless network.
Ericsson provides personnel with an in-depth knowledge of cell,
frequency, transmission, and network planning principles. Ericsson
team members also have the expertise for performing border, trunk,
and signaling network analysis as well as system capacity analysis.
In an effort to better meet your current and future customer
demands, Ericsson engineers provide a plan which shows how, when,
and where to configure your wireless network, whether it be to
develop/improve route capacity or to develop/improve network node
configurations.
Page 4
<PAGE>
2.2 SYSTEM PERFORMANCE EVALUATION
Ericsson's System Performance Evaluation (SPE) service provides an
in-depth analysis of coverage, capacity, efficiency, reliability,
and quality of your wireless system. In addition, SPE makes
recommendations critical for improving the performance of your
system.
KEY FEATURES AND BENEFITS
-------------------------
. Identifies subscriber-perceived quality concerns such as speech
quality, call delivery, call setup, and handoff success as well
as issues critical for system reliability.
. Provides recommendations for improving the capacity, reliability,
and efficiency of the wireless network.
. Provides a plan of action to meet the needs of chaining traffic
patterns and subscriber growth.
DESCRIPTION OF SERVICE
----------------------
Ericsson's System Performance Evaluation Service evaluates your
system at various levels of network configurations and traffic
patterns. This service is divided into several sections: An
Overall System Performance Analysis is performed regularly on the
entire network and is intended to focus on subscriber perceived
quality of service. The overall performance evaluation highlights
any problems found and provides a list of the most problematic cells
in each performance area.
If required, a more detailed investigation can be performed for the
most problematic cells using the Detailed Problem Analysis. this
problem analysis will provide corrective action recommendations in
areas such as:
. Handoff
. Cell capacity
. Voice quality
. Call delivery
A performance evaluation can also be applied to specific nodes in
your system to ensure that areas such as power, grounding, or data
transcripts are in appropriate conditions. This evaluation becomes
essential when planning extensive expansions, updates, and/or
enhancements to your system.
Page 5
<PAGE>
2.3 SYSTEM OPERATION CONSULTING
The System Operation Consulting service provides Ericsson certified
consultants to improve Operations and Maintenance processes and
procedures while establishing a platform for location based
mentoring.
The results of implementing the System Operations Consulting service
include:
Evaluation and recommendations of process and procedures, routines
and in-house competence levels.
Introduction of Maintenance Operations Procedures (MOP) into the
operator's networks.
Coordination of network operations and maintenance.
Event based systematic knowledge transfer to operator's technicians.
Competency transfer of MSC/BSC, NMC/OMC and BTS operations,
maintenance and support.
Improved network and in-service performance.
Greater end-user satisfaction.
Examples of the areas addressed by this service are:
Documentation of current processes, practices and procedures of AXE
element operations and maintenance.
Alarm handling, shift hand over and escalation procedures.
Power and synchronization areas.
OMC establishment, staffing and security issues.
Necessary methods and tools provisioning.
O&M organization planning and emergency support handling.
Subscriber feature related O&M training
Activity-based on-site training
The System Operations Consulting Service itself is delivered by
Ericsson consultants with a high level of appropriate expertise.
Customer feedback and O&M statistics help ensure that corrective
actions implemented meet your performance requirements. This
information is also used to continuously improve the service
delivery process.
Page 6
<PAGE>
2.4 NETWORK MANAGEMENT CONSULTING
Ericsson's Network Management Consulting addresses the operators
need for centralized operations and provides a plan for the
implementation of either or all of the following:
> Network Management System
> Network Management Center
> Operations Management Center
Ericsson engineers also analyze network operations and management to
provide solutions addressing additional Network Management
solutions.
KEY FEATURES AND BENEFITS
--------------------------
OPERATIONS AND MAINTENANCE. Ericsson engineers are available to
provide technical recommendations for network operations and
maintenance during daily activities.
IMPLEMENTATION OF NMC DESIGN. Ericsson provides NMC control room
design, architecture development, network documentation, alarm
presentation and customizing support systems based on the Ericsson
NMS product.
PROCESSES AND PROCEDURES. Provides expertise for the development of
methods and procedures required for NMC/OMC functions.
OPERATIONS AND VERIFICATION. Ericsson verifies the operation of the
NMC/OMC prior to endorsing responsibility to the operator.
CENTRALIZED OPERATIONS. The Network Management Center allows for
easier management and maintenance of your telecommunications network
from one centralized location.
DESCRIPTION OF SERVICE
----------------------
The Network Management Consulting service provides you with
recommendations for development of a Network management System,
Network Management Center and/or Operations Management Center.
Additionally, Ericsson engineers provide onsite consulting of the
operators current network management solution to recommend network
performance improvements using Ericsson's Network Management System
product.
Page 7
<PAGE>
2.5 BUSINESS OPERATIONS CONSULTING
Ericsson provides a consulting service which reviews your business
processes and procedures and provides ideas and suggestions for
improvement. Business Operation Consulting addresses areas such as
subscriber administration, customer care, and billing
administration. Additionally, this service identifies new business
possibilities and opportunities.
KEY FEATURES AND BENEFITS
-------------------------
o Constantly improved system administration.
o Integration consultancy of third party billing
DESCRIPTION OF SERVICE
----------------------
Ericsson's Business Operations Consultancy service provides you with
information on areas of your business operation that are critical
for revenue enhancing opportunities. Some of these areas include:
o Customer care and subscriber administration procedures.
o Fraud prevention activities in the network.
o Issues related to churn (subscriber or employee turnover)
minimization.
o Wireless data and Intelligent Network (IN) related businesses.
Page 8
<PAGE>
3 IMPLEMENTATION & INTEGRATION SERVICES
-------------------------------------
As the design and planning of your wireless network evolves, the
Implementation and Integration Services of The Ericsson Alliance
provides you with true turn-key solutions.
The Ericsson Alliance handles the technical and political realities
associated with the Site Acquisition process, to help avoid costly
delays. We ensure the quality construction of sites with our Civil
Construction Service and safeguard your system performance with our
Site Equipment Engineering and Equipment Installation and
Commissioning Services. As your network begins operations, we
provide the expertise for the construction of a Network Management
Center to administer day-to-day O&M activities. To excel in
customer satisfaction, Ericsson also provides a Customer Care
Implementation Service to handle your subscriber related activities.
The following sections highlight individual Implementation and
Integration Service offerings, please feel free to discuss any of
the specific service requirements with your Ericsson Services Sales
Manager.
Page 9
<PAGE>
3.1 SITE ACQUISITION
Ericsson's Site Acquisition service provides an expedient solution
for your site acquisition needs. This service provides optimal site
locations for various system nodes as well as real estate
procurement assistance, essential for your rapid deployment needs.
KEY FEATURES AND BENEFITS
-------------------------
Provides Ericsson's expertise as well as partnerships with qualified
contractors to ensure quality real estate, zoning, legal, and
environmental expertise.
Eliminates your need to dedicate additional personnel for site
acquisition activities.
Ericsson represents you in obtaining the best possible site
locations, both economically and geographically.
DESCRIPTION OF SERVICE
----------------------
The Site Acquisition Service provides you with a number of optimally
located sites, as determined by your initial cell and plans and
search rings. Ericsson handles all activities involved in acquiring
these sites, such as:
o Initial Zoning review
o Site location and permit assistance
o Negotiating and execution of leasing agreements
o Site surveys and mapping
o Title and environmental review
o Architectural and engineering/analysis
Page 10
<PAGE>
3.2 CIVIL CONSTRUCTION
Ericsson's Civil Construction service provides general contracting
service for the construction and preparation of your base station,
switching center, Network Management Center and other construction
needs.
KEY FEATURES AND BENEFITS
-------------------------
. Ericsson assumes the burdens associated with general contracting,
. Provides shorter time to commercial operation by utilizing
Ericsson's proven construction management techniques.
. Ensure that only those personnel and/or contractors with proven
abilities will construct your sites.
DESCRIPTION OF SERVICE
----------------------
Ericsson will coordinate all activities related to the civil
construction of cell sites, switch rooms, and network management
rooms, serving as your general contractor. The range of commitment
covers areas such as:
. Customer approved site plans.
. Site preparation.
. Construction/project management.
. Provisioning and/or installation of equipment shelters.
. Tower and monopole erection.
. Electrical and telco installation.
. Antenna and feeder installation.
. Generator, environmental, and security installation.
Page 11
<PAGE>
3.3 SITE EQUIPMENT ENGINEERING
Ericsson's Site Equipment Engineering service provides site surveys,
preparation, and specifications for the physical layout and
dimensioning of switch, radio, OSS, transmission, and other operator
equipment. This service is performed for multi-vendor equipment.
KEY FEATURES AND BENEFITS
-------------------------
. Provides expert advice on expansion possibilities and efficient
equipment layout.
. Minimizes future expansion problems when additional equipment is
added.
. Provides a complete set of site documentation including
installation specifications, commissioning procedures, and
interconnection diagrams.
DESCRIPTION
-----------
Experienced Ericsson engineers collect all relevant data when a new
installation or expansion is being planned. They advise on the
requirements for site preparation, space, building structures,
environmental controls, and efficient equipment layout.
Ericsson also recommends optimal ways to implement an extension to
an existing installation, taking into account factors such as spare
positions in existing cabinets, main distribution frames, digital
distribution frames, and power frames.
Examples of output from site equipment engineering are: floor plans,
cabling tables, and equipment labels. Reports, including graphical
computer-aided design layouts, are presented as the result.
Page 12
<PAGE>
3.4 EQUIPMENT INSTALLATION AND COMMISSIONING
Ericsson provides a full range of installation services for Ericsson
equipment, as well as third-party equipment. This service will
ensure fast, professional installation and commissioning work of
switch, network, radio, OSS, transmission and other Ericsson
modules.
KEY FEATURES AND BENEFITS
-------------------------
. Assurance of quality installation, commissioning by Ericsson's
experienced installation personnel with proven installation
methods.
. Ericsson resources complement your own personnel to facilitate
installation knowledge transfer.
. Efficient commercial availability when using Ericsson's
experience in system equipment turnup and/or changeout.
DESCRIPTION OF SERVICE
----------------------
Ericsson's Installation and Commissioning services covers the
installation, commissioning and testing of new equipment and/or
extensions of live installations. Ericsson can also re-allocate
and/or re-install existing equipment as well as dismantle obsolete
equipment.
Three levels of Equipment Installation and Commissioning services
are offered:
Turnkey installation and commissioning. Ericsson provides all
installation and commissioning work, necessary personnel,
documentation, tools and instruments according to an agreed
schedule.
Quality Assurance Supervision. Ericsson provides quality assurance
personnel to ensure that non-Ericsson installation and commissioning
work meets Ericsson's specified requirements and quality standards.
Installation Audits. Ericsson will perform post-installation
inspections to ensure that inhouse installers and/or third party
installers conform to quality specifications.
Page 13
<PAGE>
3.5 SYSTEM OPTIMIZATION
Ericsson's System Optimization service implements improvements
recommended by Ericsson's System Performance Evaluation, RF
engineering, and/or other performance improvement tools or experts.
This service is designed to improve the performance and quality of
the operators wireless network.
KEY FEATURES AND BENEFITS
-------------------------
. Implements recommendations from Network Planning and Expansion,
System Performance Evaluation as well as other RF performance
improvements tools.
. Reduces the lead time for implementation of extensive and/or
complex improvements to system data.
. Minimizes disrupted service to end users during performance
activities.
. Enables improvement activities to be performed securely and
rapidly.
DESCRIPTION
-----------
Ericsson engineers translate optimization recommendations into
system data inputs for implementation into the wireless network.
Activities covered are:
. Baseline drive testing, data acquisition, and modification prior
to implementation of data changes.
. Translation of planning and evaluation information to system data
MML formats and commands.
. Preparation, distribution and implementation of customized cell
design data information and switch files.
Page 14
<PAGE>
4. MAINTENANCE AND SUPPORT SERVICES
--------------------------------
Ericsson maintains a long-standing tradition of prompt equipment
maintenance and reliable customer support. Our dedicated and
certified service personnel are centrally located to ensure rapid
repair turnaround times. In addition, Ericsson's global support
organizations are easily accessed through a central point-of-
contact, facilitating rapid troubleshooting responses.
Ericsson provides a System Support Service for routine as well as
emergency handling of activities such as fault identification and
analysis. We also provide Hardware Maintenance and Replacement
Services to ensure current hardware usage and rapid replacement
delivery. Ericsson provides you with "cradle to grave" tracking of
your equipment inventories with our Configuration Management
Service. Our worldwide expertise can assist you in Operations and
Maintenance or can be dedicated to you with our Operations and
Maintenance Management Service. As your system evolves, Ericsson's
Network Management and System Administration Service can operate
your OSS network to ensure optimal system performance.
The following sections highlight individual Maintenance and Support
Service offerings, please feel free to discuss any of the specific
service requirements with your Ericsson Services Sales Manager.
Page 15
<PAGE>
4.1 SYSTEM SUPPORT
Ericsson's System Support Service is a package of services including
Consultation and 24-hour Emergency Support, Software Maintenance
Service and Hardware Maintenance.
KEY FEATURES AND BENEFITS
-------------------------
. Immediate assistance in resolution of operations and maintenance
issues; a single access point to Ericsson's Customer Support
Organization, which ensures appropriate expertise are available
to resolve performance issues.
. Contractually defined response times and internal-audited quality
control by Ericsson.
. Minimizes the impact to network and service operation during
updates and corrections.
. Reduced need for in-house competence of Ericsson network element
software handling.
DESCRIPTION OF SERVICE
----------------------
Ericsson's System Support provides you with an instant access to a
strong local presence, while simultaneously taking advantage of
centrally coordinated and integrated services. The Consultation and
24-hour Emergency Service, with optional on-site visits, resolves
non-critical, day-to-day issues as well as emergencies in your
wireless network. One or several telephone lines are dedicated to
you for rapid access to our Technical Assistance Center (TAC).
Experienced system engineers are available for on-site visits should
telephone consultation be insufficient in resolving problems or
requests.
Each issue handled by TAC is logged as a Customer Request (CR). The
CRs will be analyzed and responded to within the contractually
defined response times. TAC also has access to Ericsson's worldwide
expertise and databases to quickly identify and resolve customer
and/or end-user issues.
The System Maintenance service regularly introduces software updates
into the network elements for optimum system performance. The input
for Software Maintenance arises from issues identified in your own
network, as well as other similar networks around the world.
Page 16
<PAGE>
4.2 SPARE PART MANAGEMENT SERVICE
Ericsson's Spare Parts Management Service eliminates the need for
you to maintain your own buffer stock of spare parts. Instead,
spare parts will be delivered to where they are needed from
Ericsson's own resources.
KEY FEATURES AND BENEFITS
-------------------------
. Reduces your spare parts stock and eliminates obsolete spares,
thereby releasing working capital and reducing administrative
workload.
. Guaranteed, rapid delivery of parts where they are needed,
minimizing uninterrupted network operation.
. Eliminates repair concerns by always providing replacement
spares.
DESCRIPTION
-----------
This service supplies you with spares from Ericsson's spare
resources, when needed, to replace units in your wireless network.
Spare parts management eliminates the turnaround time associated
with hardware repair.
Deliveries are made directly to required locations. Additionally
this service dimensions field technician spare parts and enables you
to maintain only those parts crucial to your operation.
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4.3 HARDWARE REPAIR
Ericsson's Hardware Repair Services handles the repair and/or
replacement of hardware elements for your wireless network. In
addition, Ericsson provides you with rapid repair turnaround time
through Ericsson's international repair centers.
KEY FEATURES AND BENEFITS
-------------------------
. Reduced wireless network service interruption due to
rapid turnaround of hardware repair.
. Guaranteed high-quality repair according to
original design specifications.
. Hardware shipped from Ericsson has the latest
revision upgrade installed at no additional charge.
. Contractual delivery time for repaired units.
. Reports, as requested by the customer, on repair
activity, ie-MTBF, and historical data.
DESCRIPTION OF SERVICE
----------------------
ADVANCED SWAP AND REPAIR - A replacement unit is sent from Ericsson
to any location designated by the customer, within 48 hours, BEFORE
their faulty unit has reached Ericssons's hardware services center.
The unit(s) can be sent directly to a field technician or warehouse
reducing the number of spares a customer or technician needs to keep
on hand. The rapid turnaround time for unit(s) reduces the
customer's capital investment in spare stock, less administrative
work, reduces transportation costs, and reduces obsolescence. The
customer has two days to have the faulty unit back to the Ericsson
hardware services center or they will be invoiced the purchase price
of theunit.
SWAP AND RETURN - On receipt of the customer's faulty unit, a
replacement unit is delivered within 5 working days to the
customer's warehouse. The rapid turnaround time for unit(s) reduces
the customer's capital investment in spare stock, less
administrative work, reduces transportation cost, and reduces
obsolescence.
REPAIR AND RETURN - The same faulty unit the customer sends in is
repaired and returned within 15 working days. This feature is known
as "Same for Same." The unit is shipped directly back to the
customer's warehouse.
EMERGENCY REPAIR - A customer calls the Ericsson Hardware Services
center and requests an emergency shipment. The unit(s) are shipped
at a moments notice from Ericsson and charged at Ericsson's then-
current fee for this service. The cost of this service is billed on
an ad-hoc basis and prices may vary. The unit will be received at
the customer's site within 24 hours. Shipping options can include
overnight service or airport counter to counter. This service
requires little capital investment for the customer.
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4.4 OPERATION AND MAINTENANCE MANAGEMENT
Ericsson's Operation and Maintenance Management Service provides you
with reliable Ericsson technicians for the day-to-day handling of
O&M activities within selected areas of your wireless system.
KEY FEATURES AND BENEFITS
-------------------------
. Ericsson leads the daily O&M handling of base stations, OMC/NMCs,
switching nodes, and regional maintenacne offices.
. Establishes proper procedures and routines for O&M of Ericsson
products.
. Provides Ericsson's technicians to perform daily testing,
operating and maintenacne of various network elements.
DESCRIPTION OF SERVICE
----------------------
The Operation and Maintenance Management responsibilities range from
the handling of field maintenance to the replacement of hardware. In
addition Ericsson provides O&M of the entire system with continuous
monitoring of system performance and service quality. All in an
effort to implement operations and maintenance actions.
Ericsson's Operation and Maintenance Management service is a long-
term commitment to the operator in managing the hands-on activities
related to AXE and base station operation. Ericsson, by various
means, places its personnel on site and worldwide to access various
expertise and tools in ensuring efficient system operations.
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4.5 OPERATION AND MAINTENANCE ASSISTANCE
Ericsson's Operation and Maintenance Assistance service provides
experienced technicians who are placed in your maintenance
organization, to assist your staff with perations and maintenance of
your wireless network. Ericsson provides you with proven expertise
during periods of high resource demands.
KEY FEATURES AND BENEFITS
-------------------------
. Use of Ericsson expertise to fill your short-term personnel
needs, expansion needs, or staff shortage needs.
. Provides Ericsson's technicians to perform short term (as needed)
testing, operations and maintenance of various network elements.
DESCRIPTION OF SERVICE
----------------------
Ericsson's Operation & Maintenance Assistance service provides
hands-on assistance by experienced Ericsson O&M personnel. These
personnel are placed in pivotal positions to work at your switching,
radio, OMC/NMC, or regional maintenance sites on a short-term basis.
Assistance can be given for any type of support or O&M work, such as
daily O&M and emergency routines, or any of the following:
. OSS administration.
. Alarm handling.
. Preventive maintenance.
. Subscriber and trunk line maintenance.
. Base station (RBS/BTS) maintenance.
. Trouble reporting.
. Software updates and upgrades.
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4.6 CONFIGURATION MANAGEMENT
This service tracks, traces, maintains, and controls the equipment
inventory of your wireless network. Ericsson provides quick and
precise responses to your infrastructure needs by managing your
existing configuration and identifying critical configuration
enhancements to improve your system performance.
KEY FEATURES AND BENEFITS
-------------------------
. Ensures equipment traceability from engineering through
installation and repair.
. Ensures the maintenance and control of your equipment assets.
. Monitors equipment related warranty issues to safeguard against
warranty neglect.
DESCRIPTION OF SERVICE
----------------------
Configuration Management handles all of your equipment traceability
needs from "cradle to grave". This service incorporates traceability
by embracing the needs of four major areas:
. Tracking of equipment from the factory (manufacturing).
. Tracking of equipment through shipping, receiving, preassembly,
and pretest.
. Tracking of equipment at the site.
. Tracking of equipment through the repair process.
Regular support between you and Ericsson facilitates the elements of
the traceability system. This service provides valuable data to
areas such as acceptance, billing, support and repair.
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4.7 NETWORK MANAGEMENT SYSTEM ADMINISTRATION
The Network Management System Administration service provides the
operator with an efficient solution for the operation and
administration of their Network Management System.
KEY FEATURES AND BENEFITS
-------------------------
. NMS User Provisioning. Adding and deleting NMS users, creating
and modifying user workspace menus, and provisioning for new user
authority types.
. Database Monitoring. Monitoring of NMS databases for system
capacity, turning databases to help meet operator's network
capacity needs, setting up an efficient database backup plan, and
monitoring database activity.
. UNIX File System Maintenance. Monitoring NMS file systems'
capacity, turning file systems to help meet operator's network
capacity needs, setting up an efficient file system backup and
restoration plan, and identifying and restoring corrupted file
systems.
. Hardware Administration. Monitoring servers, workstations, hard
disks, printers, and modems and forecasting necessary hardware
for system performance improvement.
. NMS Monitoring and Tuning. Monitoring NMS applications for
suspect behavior, tuning of NMS processes for network efficiency
. NMS Application Administration. Providing NMS administration for
the TMOS platform and developed applications.
DESCRIPTION OF SERVICE
----------------------
The Network Management System Administration service provides
Ericsson system administration based on proven UNIX, database, and
NMS application operations and maintenance procedures.
System administration support is offered either locally or remotely.
Remote administration is available either by way of a dedicated
high-speed link to the Ericsson Network Management Center or through
a modem connection. System administration duties requiring physical
activities such as connecting printers and workstations or removing
tapes from backup devices are provided via on-site support.
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4.8 PERFORMANCE REPORT CUSTOMIZATION
This service provides customized reports to help monitor and
optimize network performance. Customization provides operator-
defined reports for processing traffic measurement data.
KEY FEATURES AND BENEFITS
-------------------------
. Simple and Efficient Operations. Customized reports rapidly
generate traffic reports and well as schedule and export these
reports in different formats with simplified point and click
operations.
. Multiple Format Flexibility. The output formats can include
columnar lists (both detailed and summary), six types of charts
(bar, stacked bar, pie, line, scatter and area), and matrices (or
cross-tabulation reports).
. Third Party Application Integration. Traffic measurements or
statistics can be exported to applications that read ASCII files
in both delimited and fixed-length fields Third party
applications include dBASE II and III, Microsoft Excel, Lotus
1-2-3, Microsoft Word for Windows (documents or mail-merge
format), and WordPerfect.
. Hassle Free Upgrades. Ericsson will maintain, test, and
implement any changes to the customized reports as necessary
for Application System upgrades.
DESCRIPTION OF SERVICE
----------------------
Ericsson's Performance Report Customization service allows the
operator the ability to easily monitor the performance of the
network by review of customized statistical indicators. The
customized report user's guide and executable program are provided
to the operator at the completion of the service.
Customized reports are generated and scheduled according to the
network operator's requirements. These requirements are agreed upon
by both Ericsson and the operator and are clearly defined in a
project specification.
Page 23
<PAGE>
4.9 REMOTE NETWORK MONITORING
Ericsson's Remote Network Monitoring service provides expert
monitoring of site alarms and alarm handling for base stations,
switching centers, and other network elements.
KEY FEATURES AND BENEFITS
-------------------------
. Alarm Monitoring. Monitoring of network alarms for all network
nodes by experienced Ericsson engineers located in Ericsson's
Network Management Center.
. Immediate Action. Immediate action on all major network outages
is provided by an experienced team of wireless network
troubleshooters.
. Improved In-Service Performance. 24-hour monitoring of network
alarms with immediate action improves the system's in service
performance.
DESCRIPTION OF SERVICE
----------------------
Remote Network Monitoring utilizes Ericsson's Network Management
System applications. Ericsson NMS engineers provide proven NMS
solutions for network monitoring.
Remote Network Monitoring is available via a dedicated high-speed
link to the Ericsson Network Management Center.
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<PAGE>
4.10 REMOTE NETWORK OPERATIONS
A turn-key solution to network operations and maintenance is
provided by Ericsson's Remote Network Operations service.
KEY FEATURES AND BENEFITS
-------------------------
. Turn Key Operation. Network performance monitoring, alarm
monitoring, cellular configuration, and other network operations
are provided by Ericsson NMS engineers via the Network Management
Center.
. Effieicnt Network Troubleshooting. Identification and correction
of network faults is provided by a team of experienced Ericsson
network troubleshooters.
. Improve In-Service Performance. 24-hour operations allows for an
improvement in the system's in-service performance.
DESCRIPTION OF SERVICE
----------------------
Remote Network Monitoring utilizes Ericsson's Network Management
System applications. Ericsson NMS engineers provide proven NMS
solutions for network monitoring.
Remote Network Monitoring is available via a dedicated high-speed
link to the Ericsson Network Management Center.
Page 25
<PAGE>
5. TRAINING SERVICES
-----------------
Ericsson's customer training programs are designed to
transfer Ericsson system, performance and support
knowledge to your dedicated resources. Ericsson
provides its Training Services using state-of-the-art
training facilities to combine theoretical discussion
and ideas with "real-world", hands on experience.
The Training Services of The Ericsson Alliance provide
your personnel with a wide range of training programs.
Ericsson has programs designed for CMS 40 System
Training to enhance the technical knowledge of your
selected resources. We also provide NMC/OMC platform.
In addition Ericsson provides Customer Care Training to
focus and safeguard your subscriber related interfaces.
The following sections highlight NMC/OMC and customer
care training offerings. Additional training courses
are described in Ericsson's training catalog. Please
feel free to discuss any of the specific service
requirements with your Ericsson Services Sales Manager.
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<PAGE>
5.1 CERTIFICATION PROGRAM
The Ericsson Certification Program is a program of
training courses designed specifically for the
achievement of technical certification in wireless
network elements.
KEY FEATURES AND BENEFITS
-------------------------
. Established competence levels within your
organization.
. Pre-defined individual competence development
plan.
. Basic courses for core competence and special
courses for subject area expertise.
DESCRIPTION OF SERVICE
----------------------
Ericsson's Certification program is a combination of
basic sources with concentration courses. Certification
ensures that the participant has acquired the necessary
theoretical and practical training to complement the
experience gained from hands-on work within your
organization. Currently, the areas of concentration are
MSC, BSC, and BTS. Within each area of concentration,
multiple levels of technical competence are possible.
The first competence level (Level 1) provides training
for performance routine administration with minimal
guidance. The second competence level (Level 2) provides
training in performing normal operation and maintenance
activities using Ericsson exchange documentation. Level
3 certification provides training for diagnosing and
remedying hardware faults as well as for performing
extended operation and maintenance. Level 4
certification provides training in troubleshooting
hardware and software faults as well as trianing in
advanced command functions, features, and capabilities.
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5.2 COMPETENCE DEVELOPMENT PROGRAM
The Ericsson Competence Development program provides courses to develop
in-house resources in aspects of systems activation, operation, and
maintenance.
Key Features and Benefits
-------------------------
. Career related training paths and courses for your O&M professionals.
. Courses at Ericsson's international training centers, or at your
premises.
. Provide an introduction to new features and network technologies.
Description of Service
----------------------
Training in the handling of wireless system is necessary for various
personnel within your organization. For many years, Ericsson has developed
training courses at many levels including products and systems. Aside from
traditional classroom training, many courses are in the form of Computer-
Based Training, available for use on your desktop computers.
Training courses are available in areas such as radio system, switching
system, and centralized operation. An example of the competence development
structure is shown below:
----------------------------------------
System Introduction
----------------------------------------
MSC O&M
----------------------------------------
MSC Digital O&M
----------------------------------------
Advanced MSC O&M
----------------------------------------
IOG-11 Operations
----------------------------------------
Measurement Functions
----------------------------------------
Signaling System #7
----------------------------------------
In addition to product related courses, Ericsson offers courses in other
areas, such as new system features, new system technologies, and customer
care. These courses are designed for the development of your operational,
business, and marketing personnel.
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<PAGE>
EQUIPMENT COMPATIBILITY EVALUATION
The Ericsson Equipment Compatibility Evaluation service ensures the
compatibility between Ericsson's products as well as products from
other vendors.
Key Feature and Benefit
-----------------------
. Verifies that your network equipment and software (Ericsson and
non-Ericsson) interface properly to maintain a high performance
system.
Description of Service
----------------------
Ericsson tests and evaluates other vendor products for compatibility
and performance with Ericsson's technical specifications for
equipment. This service assures that equipment will interface and
function properly prior to commissioning into your wireless network.
In addition, this service provides compatibility testing for new and
upgraded software features for Ericsson and non-Ericsson equipment.
<PAGE>
AGREEMENT 9107
OMNIPOINT COMMUNICATIONS INC.
ATTACHMENT D
SYSTEM SUPPORT SERVICES
-----------------------
In addition to the provisions of the Acquisition Agreement, of which this
Attachment D is made a part, including without limitation, Article 13 -
Warranties, which provisions shall supersede these provisions in the event of
any inconsistency, Seller agrees to render System Maintenance Services to Buyer
on the following terms and conditions:
1. EQUIPMENT MAINTENANCE SUPPORT
-----------------------------
(a) After the Warranty Period and for a period of ten (10) years
thereafter, Buyer has the option to purchase, Equipment Maintenance
Support Services on an annual basis or to purchase such services on
per board ad hoc basis.
(b) Hardware Maintenance Support includes repair and replacement of all
Seller-manufactured Base Station and Network Element Equipment,
excluding batteries.
(c) In accordance with the terms of Article 13 of the Acquisition
Agreement, Equipment faults in units or printed circuit boards shall
be corrected by Seller's Repair Center on a repair-or-replacement
basis.
(d) Buyer shall dismantle and ship, at its expense, faulty components to
Seller's Richardson, Texas, location (or such other location
designated by Seller) where Seller will repair or replace the
components and reship, at Seller's expense, to Buyer within twenty
(20) working days of receipt. Special one (1) day emergency turnaround
is available at Seller's then-current fee for such service. Seller
will utilize overnight air shipment to return these emergency boards
to Buyer's location.
(e) (i) Ad hoc Service: If Buyer selects the option to purchase
Maintenance on a per board ad hoc basis, such services shall be
charged at Seller's then current repair fee for such boards or
Equipment, which charges shall be paid on a per shipment basis
within thirty (30) days of invoice therefor.
(ii) Annual Service: If Buyer elects to purchase Equipment
Maintenance Support on an annual basis, the annual fee, such
services shall be charged at Seller's then-current fee for annual
services for the Equipment set forth in the order for Maintenance
Support, which fee shall be payable monthly in advance upon
invoice therefor. The fee for the first year, if it is not a full
calendar year, shall be prorated
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for the number of days remaining in such year. There shall be an
additional monthly charge per radio channel for related Equipment
whose warranty expires prior to the warranty expiration for the
radio channel itself.
(iii) The Maintenance Support option selected by Buyer shall be valid for
the entire year, at the end of which Buyer shall have the right to
exercise either option for the following year thereafter.
(f) At Buyer's request, Seller will provide Maintenance Support Service
as described herein for third party equipment purchased from or
through Seller pursuant to the Acquisition Agreement at cost plus
sixteen percent (16%) for handling.
2. SOFTWARE MAINTENANCE SUPPORT
----------------------------
(a) After the Warranty Period and for a period of ten (10) years
thereafter, Buyer has the option (required for Small Node Switches)
to purchase Software Maintenance Support services on an annual basis
from Seller.
(b) Software Maintenance Support shall include: (i) all Software
Updates issued by Seller as part of the standard maintenance
service; (ii) in accordance with Article 13 of the Acquisition
Agreement, correction of faults that are determined to be software
based (including emergency Software patches, if required); (iii)
24-hour telephone assistance (TAC) for problem resolution, fault
report handling, tracking and resolution; and (iv) "Tech Tips" on
radio and MSC operation. The right to use new Software Features or
Software Enhancements are priced separately and are not released as
part of this maintenance plan.
(c) The price for Software Maintenance Support shall be Seller's
then current fee for the applicable Software, payable monthly in
advance. The fee for the first year, if it is not a full calendar
year, shall be prorated for the number of days remaining in such
year.
3. SERVICE LIMITATIONS
-------------------
(a) Maintenance Support Service as described in sections 1 and 2
above covers malfunctions in Equipment and Software that impair
service to subscribers, System performance, billing, administration
or maintenance, except for malfunctions that are: (i) caused by
deliberate or negligent acts of persons other than Seller (including
but not limited to those acts or causes listed in Section 13.6 of
the Acquisition Agreement) or (ii) any other causes external to the
System. Buyer shall pay Seller's then current rate for any technical
assistance rendered and the actual cost of labor, freight and
materials for the repair or replacement, at Buyer's request, of any
Equipment and Software faults not covered by Maintenance Support.
(b) Software Maintenance Support Services will be provided for the
latest released
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<PAGE>
version of the Software and the last two (2) previous released version
of that Software. If Buyer chooses to freeze on a prior released
version of the Software, Seller may, at its option, provide a quote
for maintenance service for such Software, require Buyer to bring the
installed Software up to a supported version, or significantly reduce
the level of support services. Any loss of System functionality due to
the inability or unwillingness of Buyer to keep the Software current
shall be the sole responsibility of and liability of Buyer.
(c) Seller's performance of its obligations hereunder is dependent
upon Buyer providing access to the System and to such information and
facilities as Seller may reasonably require in order to provide the
Maintenance Support Service.
(d) Buyer may request the Seller provide on-site technical assistance
or expert services on matters not covered by Maintenance Support in
accordance with Article 6 of the Acquisition Agreement. Such services
will be provided at Seller's then current rate for such services or on
a time and materials basis, as appropriate.
4. DISCONTINUATION OF SERVICES BY Seller
-------------------------------------
In the event that the Seller intends to discontinue either its Hardware
Maintenance Support services or its Software Maintenance Support services
after the ten (10) year periods set forth in paragraphs 3 and 4, above, or
in either case, as applicable, Seller shall provide Buyer with sufficient
advance notice of such intention, together with all reasonably necessary
information, so as to enable Buyer to perform such services itself or
arrange for them to be performed by a third party.
5. TERMINATION OF SERVICE
----------------------
(a) Buyer Seller may terminate Maintenance Support for its convenience
by giving Seller thirty (30) days advance written notice.
(b) In the event of such termination of Maintenance Support, neither
party shall have any further obligation to the other with respect to
Maintenance Support, except that (i) Seller shall refund to Buyer any
portion of the charge paid by Buyer for Maintenance Support for the
period subsequent to the effective date of termination, less any
amounts then due Seller; and (ii) Buyer shall pay Seller for the
Maintenance Support Services performed prior to the effective date of
termination.
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*CONFIDENTIAL INFORMATION; ATTACHMENT E
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OMNIPOINT CORPORATION
---------------------
RESPONSIBILITY MATRIX
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OMNIPOINT CORPORATION
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*
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OMNIPOINT CORPORATION
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OMNIPOINT CONTRACT 2/27/96 Attachment I
OMNIPOINT CORPORATION
---------------------
RADIO NETWORK DESIGN
--------------------
Omnipoint Corporation will be providing providing their own Radio Design. When
such information has been developed it will be provided to Ericsson Inc.
Ericsson, Inc.-Not for use of disclosure outside Omnipoint except under written
agreement
<PAGE>
- --------------------------------------------------------------------------------
ATTACHMENT J
ACQUISITION AGREEMENT #9107
- --------------------------------------------------------------------------------
OMNIPOINT CORPORATION
---------------------
ERICSSON CMS 40 ACCEPTANCE TESTS
--------------------------------
GENERAL SCOPE
- -------------
SELLER will perform Acceptance Tests to demonstrate that the Equipment and
Software installed by SELLER operate materially with the Specifications and that
the System or System segment is ready for commercial service. Appendix 1
presents a graphic overview of the Systems Implementation and Acceptance Tests
for the Equipment and Software.
SELLER Acceptance Tests are performed in the following areas when Installation
and other related services for Equipment and Software are purchased from SELLER:
. Network Element Acceptance
. System Acceptance
. Commercial Acceptance
1. NETWORK ELEMENT ACCEPTANCE
Each standalone Network Element (equipment and software) is tested
separately and independent from other Network Elements to verify that it
operates in accordance with the applicable Specification. Network Elements
will be installed and tested in accordance with applicable provisions of
the latest version of SELLER's installation and test manual. An Acceptance
Certificate will be signed at the completion of this test. Appendix 2
lists the Network Element test objects.
Included in Network Element Acceptance are:
(a) Network Element integration tests are designed to verify that the
hardware connections and interfaces between the Network Elements are
installed and working properly and that network data and the concerned
traffic data are correct. Appendix 3 lists the Network Element
integration test objects.
(b) Traffic Network tests are designed to verify that different traffic
cases to and from mobile telephones, as well as handover, locating and
charging functions are working properly in accordance with the
Specifications. Traffic Network tests include (i) Traffic Case Tests
which are designed to verify that different traffic cases to and from
mobile telephones, as well as handover, locating and charging functions
are working property in accordance with the Specifications; and (ii)
the Radio Network Performance test which is designed to verify that the
performance of the radio network (e.g., check the cell data, coverage
and handover on major roads) is in accordance with the Specifications.
The Radio Network Performance test is only part of the acceptance tests
procedure when SELLER is responsible for the radio network planning.
Traffic Network Tests are performed on the agreed minimum part of the
System required to verify the System's functionality. Appendix 4 lists
the Traffic Network test objects.
- --------------------------------------------------------------------------------
NOTICE
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- --------------------------------------------------------------------------------
1
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ATTACHMENT J
ACQUISITION AGREEMENT #9107
- --------------------------------------------------------------------------------
2. SYSTEM ACCEPTANCE
After successful completion of all other Acceptance Tests described
above, SELLER will demonstrate that a predefined portion of the System
mutually agreed to the parties parties hereto operates in accordance with
the Specifications for the entire System. The System test is performed by
applying a mutually agreed upon number of tests to a predetermined portion
of the System in accordance with the applicable provisions of the latest
version of SELLER's installation and test manuals. An Acceptance
Certificate will be signed at the completion of this test. Appendix 5
lists the System test objects. Acceptance of the remainder of the
standalone Network Elements shall be accepted on a Network Element basis as
set forth above.
3. COMMERCIAL ACCEPTANCE
Commercial Acceptance shall take place upon the earlier to occur of (i)
use of any part of the System In Revenue Service, or (ii) when the System
or any part thereof, is capable of being placed In Revenue Service (i.e.,
no service affecting deficiencies exist).
4. CONDUCT OF ACCEPTANCE TESTS
(a) Generally, all tests will be performed as part of the Installation of
the System and will be performed according to SELLER's standard
procedures. The following documentation will be provided, as
appropriate, for each of the Acceptance Tests described above:
. Inventory Statement
. Test Data Forms (Inst./Demo Checklist/Test Object Lists)
. Acceptance Certificates (which are attached hereto)
. Exceptions List Report (if needed)
. Exceptions List Resolution Certificate (if needed)
(b) SELLER shall notify PURCHASER as soon as it knows, but at least ten
(10) days before, the date on which Acceptance Tests shall be
conducted and shall provide PURCHASER with a detailed Acceptance Test
Procedure. At the first practicable date thereafter, SELLER and
PURCHASER shall each sign off on any pretest forms provided as part of
the particular Acceptance Test being conducted. If PURCHASER or its
nominee does not attend the Acceptance Tests, SELLER shall proceed
with the tests and immediately forward the test results to PURCHASER.
(c) If, in the performance of Acceptance Tests by SELLER, the Equipment,
Software or the System, as a whole, comprising the Initial System
Acceptance System Configuration does not fulfill the requirements of
the Acceptance Tests, SELLER shall, at its expense, correct the
defects as soon as practicable. The Acceptance Tests (or so much of
them as necessary) shall be recommenced immediately after such
correction in accordance with this Attachment J.
(d) Upon the successful completion of an Acceptance Test conducted by
SELLER, SELLER shall, if applicable, submit to PURCHASER an Acceptance
Certificate certifying (i) successful completion of the Acceptance
Tests, (ii) the Equipment and Software, to that stage completed, have
been installed in accordance with the requirements of this Agreement,
subject to resolution of Punch list items, and (iii) that the System
(or System segment) is ready to be placed In Revenue Service.
PURCHASER shall acknowledge same by signing the Acceptance Certificate
prior to the System (or System segment) being placed In Revenue
Services. At such time, Punch list items will be documented and
Equipment, Software or Installation covered by such certificate shall
be deemed "Accepted" (i.e., "Acceptance"
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NOTICE
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- --------------------------------------------------------------------------------
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ATTACHMENT J
ACQUISITION AGREEMENT #9107
- --------------------------------------------------------------------------------
shall have occurred). Items may be added to the Exceptions List by
PURCHASER up to fifteen (15) days after Acceptance unless such items
should reasonably have been detected by visual inspection by PURCHASER
at the time the Exceptions List was initially prepared. Defects in
components arising after Acceptance that are covered by Article 13 -
Warranty shall not be considered Punch list items. Upon resolution of
Punch list items by SELLER, SELLER shall submit to PURCHASER, and
PURCHASER shall sign, a ceritificate verifying that no further Punch
list items remain unresolved. In the event of any dispute as to the
results of any Acceptance Tests, such dispute shall be resolved by a
Third Party Engineer selected pursuant to Article 23 - Disputes.
(e) Testing of Equipment and Software purchased as Expansions to the
Initial Configuration will be conducted in accordance with the
Acceptance Tests procedure set forth in the order for such Expansions.
Reference documentation Acceptance Test Procedure and Acceptance Test
Procedure Appendices EUS/RO/XT-95:148 and EUS/RO/XT:149.
Rev. 1/22/96
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NOTICE
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3
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ATTACHMENT J
ACQUISITION AGREEMENT #9107
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APPENDIX 1 - MOBILE TELEPHONE SYSTEMS IMPLEMENTATION AND ACCEPTANCE
BLOCK DIAGRAM
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NOTICE
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4
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ATTACHMENT J
ACQUISITION AGREEMENT #9107
- --------------------------------------------------------------------------------
APPENDIX 2 - NETWORK ELEMENT TEST CMS 40 R1
NETWORK ELEMENT TEST CMS 40 R1
NETWORK ELEMENT
MSC/VLR Mobile Switching Center/Visiting Location Register
MSC/VLR/HLR Mobile Switching Center/Visiting Location Register/Home
Location Register
HLR Home Location Register
BSC Base Station Controller
BTS Base Transceiver Station RBS 2000
AUC/EIR Authentication Center Equipment Identity Register
OSS Operation and Maintenance System (See Appendix 2A)
SOG Service Order Gateway (See Appendix 2B)
BgW Billing Gateway (See Appendix 2C)
GIWU GSM Interworking Unit
- --------------------------------------------------------------------------------
NOTICE
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- --------------------------------------------------------------------------------
5
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ATTACHMENT J
ACQUISITION AGREEMENT #9107
- --------------------------------------------------------------------------------
APPENDIX 2A - CMS40 OPERATION SUPPORT SYSTEM ACCEPTANCE TESTS
CMS40 OPERATION SUPPORT SYSTEM
ACCEPTANCE TESTS
TEST OBJECT LISTS
-----------------
Platform Line PLL - Sun Hardware Platform
1/1532-3/APA 101 02
Platform Line PLL - Common Application Platform
2/1532-4/APA 101 02
Platform Line PLL - Fault Management Application
2/1532-4/APA 101 02
Platform Line PLL - TAP Support Functions
2/1532-4/APA 101 02
Platform Line PLL - Log Administration
2/1532-4/APA 101 02
Cellular Network Administration
1532-16/AOM 201 02
Cellular Network Administration Interface
1532-16/AOM 201 02
Radio Alarm Handling
1532-16/AOM 201 02
AUC/EIR Alarm Handling
1532-16/AOM 201 02
Tellnet External Access
1532-16/AOM 201 02
Network Administration
1532-16/AOM 201 02
Radio Network Measurement
1532-16/AOM 201 02
Radio Network Recording Functions
1532-16/AOM 201 02
Network Element Software Register
1532-16/AOM 201 02
- --------------------------------------------------------------------------------
NOTICE
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6
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ATTACHMENT J
ACQUISITION AGREEMENT #9107
- --------------------------------------------------------------------------------
APPENDIX 2A
Continued
BTS Software Management
1532-16/AOM 201 02
Map Information and Installation Tool
1532-16/AOM 201 02
Text file Alarm Adaptation Unit
1532-16/AOM 201 02
MXE Alarm and Command Interface
1532-16/AOM 201 02
Command Handling - AXE
2/1532/AOM 201 02
File Handling - AXE
2/1532/AOM 201 02
Performance Measurement - AXE
2/1532/AOM 201 02
External Alarm Interface - AXE
2/1532/AOM 201 02
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NOTICE
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7
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ATTACHMENT J
ACQUISITION AGREEMENT #9107
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APPENDIX 2B - CMS 40 SERVICE ORDER GATEWAY ACCEPTANCE TESTS
CMS 40
SERVICE ORDER GATEWAY
ACCEPTANCE TESTS
TEST OBJECT LISTS
-----------------
1. Customer Administration Interface
153 21-FAB 760 179
Message Syntax
Control Messages
HLR Subscription Administration
HLR IMSI Changeover Administration
AUC Subscription Administration
EIR Equipment Range Administration
2. Customer Administration Interface
1/153 21-FAB 760 179
HLR Administration
Control Ranges
Equipment Handling
HLR Subscription Handling
Transaction Log
3. Platform Line PLL - Sun Hardware Platform
1/1532-3/APA 101 02
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NOTICE
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- --------------------------------------------------------------------------------
8
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ATTACHMENT J
ACQUISITION AGREEMENT #9107
- --------------------------------------------------------------------------------
APPENDIX 2C - CMS 40 BILLING GATEWAY ACCEPTANCE TEST
CMS 40
BILLING GATEWAY
ACCEPTANCE TEST
TEST OBJECT LISTS
-----------------
Application Builder
15321-FAB 102 75
Application Software
15321-FAB 102 70
- --------------------------------------------------------------------------------
NOTICE
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- --------------------------------------------------------------------------------
9
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ATTACHMENT J
ACQUISITION AGREEMENT #9107
- --------------------------------------------------------------------------------
APPENDIX 3 - INTEGRATION TEST CMS 40 R1
INTEGRATION TEST CMS 40 R1
TEST TYPE
MSC other CMS NE
MSC/PSTN
APPENDIX 4 - TRAFFIC NETWORK TEST CMS 40 R1
TRAFFIC NETWORK TEST CMS 40 R1
TEST TYPE
Traffic Case Test
Radio Network
Performance Test
APPENDIX 5 - SYSTEM TEST CMS 40 R1
SYSTEM TEST CMS 40 R1
TEST TYPE
MSC/VLR/HLR
System Test
BSC/BTS
System Test
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NOTICE
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10
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ATTACHMENT J
ACQUISITION AGREEMENT #9107
- --------------------------------------------------------------------------------
OMNIPOINT CORPORATION
---------------------
ACCEPTANCE TEST PROCEDURES
--------------------------
In witness hereof, all parties signed below are in agreement to the enclosed
Attachment J, Revision C, dated February 14, 1996.
ERICSSON INC. OMNIPOINT CORPORATION
/s/ Lars Skoglund /s/ Curt Gervelis
- ---------------------------------- -------------------------------
Lars Skoglund Curt Gervelis
Project Manager Network Engineer
Both parties agree that customer has the right to submit additional test plans
to be included in the acceptance procedures. Vendor will review & comment as to
which sections can be included and if not accepted documented why it is not.
- --------------------------------------------------------------------------------
NOTICE
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- --------------------------------------------------------------------------------
<PAGE>
ERICSSON
AXE SWITCH ACCEPTANCE CERTIFICATE
================================================================================
Customer Name: Date:
-------------------------------------------------- -----------
Site Location/Number:
-----------------------------------------------------------
Project Description:
------------------------------------------------------------
Ericsson PIO Number(s):
---------------------------------------------------------
Customer P.O. Number(s):
--------------------------------------------------------
The above referenced Switch project(s) has/have passed all applicable Acceptance
tests, (ii) has/have been installed properly, subject to resolution of
outstanding punch list items, and (iii) is ready to be placed in revenue
service.
Any discrepancies are specified on the following Punch List Report or
Attachment(s):
SYSTEM ACCEPTANCE (SYSTEM READY FOR SERVICE)
[_] Not Applicable [_] No Discrepancies
[_] Discrepancies - Qty. Date Confirmed:
----------- ------------
1. FEATURE PROFILE VERIFICATION (See Profile List)
[_] Not Applicable [_] No Discrepancies
[_] Discrepancies - Qty. Date Confirmed:
----------- ------------
2. CALL DEMONSTRATION TESTS (Subscriber Features & Routing)
[_] Not Applicable [_] No Discrepancies
[_] Discrepancies - Qty. Date Confirmed:
----------- ------------
3. OTHER ( )
------------------------------------------------------------------
[_] Not Applicable [_] No Discrepancies
[_] Discrepancies - Qty. Date Confirmed:
----------- ------------
NETWORK ELEMENT ACCEPTANCE (NODE/S READY)
[_] Not Applicable [_] No Discrepancies
[_] Discrepancies - Qty. Date Confirmed:
----------- ------------
1. APZ/APT DEMONSTRATION TESTS (AXE)
[_] Not Applicable [_] No Discrepancies
[_] Discrepancies - Qty. Date Confirmed:
----------- ------------
2. MATERIAL INVENTORY (Floor Plan Spec., Spares, Documentation, etc.)
[_] Not Applicable [_] No Discrepancies
[_] Discrepancies - Qty. Date Confirmed:
----------- ------------
3. INSTALLATION & TEST COMPLETE (See Check List)
[_] Not Applicable [_] No Discrepancies
[_] Discrepancies - Qty. Date Confirmed:
----------- ------------
4. OTHER ( )
------------------------------------------------------------------
[_] Not Applicable [_] No Discrepancies
[_] Discrepancies - Qty. Date Confirmed:
----------- ------------
CUSTOMER REPRESENTATIVE ERICSSON REPRESENTATIVE
Signature: Signature:
------------------------- ----------------------------
Printed Name: Printed Name:
---------------------- -------------------------
Title: Title:
----------------------------- --------------------------------
Date: Date:
------------------------------ ---------------------------------
================================================================================
DISTRIBUTION: CUSTOMER, REGIONAL OPERATIONS MANAGER, PROJECT MANAGER, SWITCH
OPERATIONS
<PAGE>
[LOGO OF ERICSSON]
No. 4201
PUNCH LIST REPORT
================================================================================
Customer Name: Date:
------------------------- ------------------
Site Location/Number:
---------------------------------------------
Project Description:
----------------------------------------------
Ericsson PIO Number(s):
-------------------------------------------
Customer P.O. Number(s):
------------------------------------------
The following is a final list of discrepancies for this project as identified by
a joint inspection with the customer and Ericsson.
<TABLE>
<CAPTION>
Correction Ericsson Customer
No. Discrepancy or Action Required Date Initial Initial
- --- ------------------------------ ---- ------- -------
<C> <S> <C> <C> <C>
1.
- -- ------------------------------ ------- ------- -------
2.
- -- ------------------------------ ------- ------- -------
3.
- -- ------------------------------ ------- ------- -------
4.
- -- ------------------------------ ------- ------- -------
5.
- -- ------------------------------ ------- ------- -------
6.
- -- ------------------------------ ------- ------- -------
7.
- -- ------------------------------ ------- ------- -------
8.
- -- ------------------------------ ------- ------- -------
9.
- -- ------------------------------ ------- ------- -------
10.
- --- ------------------------------ ------- ------- -------
11.
- --- ------------------------------ ------- ------- -------
12.
- --- ------------------------------ ------- ------- -------
13.
- --- ------------------------------ ------- ------- -------
14.
- --- ------------------------------ ------- ------- -------
15.
- --- ------------------------------ ------- ------- -------
16.
- --- ------------------------------ ------- ------- -------
17.
- --- ------------------------------ ------- ------- -------
18.
- --- ------------------------------ ------- ------- -------
19.
- --- ------------------------------ ------- ------- -------
20.
- --- ------------------------------ ------- ------- -------
================================================================================
</TABLE>
DISTRIBUTION: CUSTOMER, REGIONAL OPERATIONS MANAGER, PROJECT MANAGER, SWITCH
OPERATIONS
FORM EUS-PLR-0195
<PAGE>
[LOGO OF ERICSSON]
No. 4251
PUNCH LIST RESOLUTION CERTIFICATE
================================================================================
Customer Name: Date:
--------------------------------------- ------------------
Site Location/Number:
----------------------------------------------------------
Project Description:
-----------------------------------------------------------
Ericsson PIO Number(s):
--------------------------------------------------------
All outstanding punch list items for the above referenced project have been
resolved to the satisfaction of the customer.
[_] See attachments (if any)
CUSTOMER REPRESENTATIVE ERICSSON REPRESENTATIVE
Signature: Signature:
-------------------------- -----------------------------
Printed Name: Printed Name:
----------------------- --------------------------
Title: Title:
------------------------------ ---------------------------------
Date: Date:
------------------------------- ----------------------------------
================================================================================
DISTRIBUTION: CUSTOMER, REGIONAL OPERATIONS MANAGER, PROJECT MANAGER, SWITCH
OPERATIONS
<PAGE>
- -------------------------------------------------------------------------
ATTACHMENT K
ACQUISITION AGREEMENT #9107
=========================================================================
<TABLE>
<CAPTION>
LIST OF CMS 40 R1 FEATURES IN MSC/VLR AND HLR
- -------------------------------------------------------------------------
FEATURE TITLE BASIC OPTION NODE
- -------------------------------------------------------------------------
<C> <S> <C> <C> <C>
1.2 Basic Traffic Control in MSC/VLR y MSC/VLR
- -------------------------------------------------------------------------
4.1 Roaming in MSC/VLR y MSC/VLR
- -------------------------------------------------------------------------
5.1 Basic Mobility Handling in HLR y HLR
- -------------------------------------------------------------------------
6.1 Call Routing in MSC/VLR y MSC/VLR
- -------------------------------------------------------------------------
7.1 IMSI Attach/Detach in MSC/VLR y MSC/VLR
- -------------------------------------------------------------------------
8.2 Basic Mobile Switching Service y MSC/VLR
- -------------------------------------------------------------------------
9.1 DTMF Signaling in MSC/VLR y MSC/VLR
- -------------------------------------------------------------------------
11.3 Call Forwarding Services in MSC/VLR y MSC/VLR
- -------------------------------------------------------------------------
12.2 Call Forwarding Services in HLR y HLR
- -------------------------------------------------------------------------
13.1 Call Barring Services in MSC/VLR y MSC/VLR
- -------------------------------------------------------------------------
14.2 Call Barring Services in HLR y HLR
- -------------------------------------------------------------------------
15.4 Advice of Charge in MSC/VLR y MSC/VLR
- -------------------------------------------------------------------------
16.1 Advice of Charge in HLR y HLR
- -------------------------------------------------------------------------
17.4 Handover in MSC/VLR y MSC/VLR
- -------------------------------------------------------------------------
18.3 Basic Security Features in MSC/VLR y MSC/VLR
- -------------------------------------------------------------------------
19.4 Toll Ticketing y MSC/VLR
- -------------------------------------------------------------------------
20.1 Accounting y MSC/VLR
- -------------------------------------------------------------------------
23.1 Service Quality y MSC/VLR
- -------------------------------------------------------------------------
24.1 Administration of Data in MSC/VLR y MSC/VLR
- -------------------------------------------------------------------------
26.1 Code Answer y MSC/VLR
- -------------------------------------------------------------------------
27.1 Long Term Monitoring y MSC/VLR
- -------------------------------------------------------------------------
33.2 Performance Management in MSC/VLR y MSC/VLR
- -------------------------------------------------------------------------
34.2 Performance Management in HLR y HLR
- -------------------------------------------------------------------------
35.2 Handling of Reset in MSC/VLR y MSC/VLR
- -------------------------------------------------------------------------
36.2 Tracing y MSC/VLR
- -------------------------------------------------------------------------
38.3 Basic Subscription Handling y HLR
- -------------------------------------------------------------------------
42.1 Activity Supervision y MSC/VLR
- -------------------------------------------------------------------------
50.3 Mobile Application Part in MSC/VLR y MSC/VLR
- -------------------------------------------------------------------------
51.3 Mobile Application Part in HLR y HLR
- -------------------------------------------------------------------------
52.3 Base Station Application Part in MSC/VLR y MSC/VLR
- -------------------------------------------------------------------------
54.1 Basic Network Traffic Management y MSC/VLR
- -------------------------------------------------------------------------
55.1 Announcement of ringtone time out y MSC/VLR
- -------------------------------------------------------------------------
57.1 Measurement of Network Performance y MSC/VLR
- -------------------------------------------------------------------------
61.1 Group Switch Control in MSC/VLR y MSC/VLR
- -------------------------------------------------------------------------
63.1 National Roaming y MSC/VLR
- -------------------------------------------------------------------------
64.3 Data Services Platform y MSC/VLR
- -------------------------------------------------------------------------
65.2 Modem Services and Basic PAD y MSC/VLR
- -------------------------------------------------------------------------
66.2 Short Message Services in MSC/VLR y MSC/VLR
- -------------------------------------------------------------------------
67.1 Short Message Services in HLR y HLR
- -------------------------------------------------------------------------
68.2 Fax Service y MSC/VLR
- -------------------------------------------------------------------------
69.2 Call Waiting and Call Hold y MSC/VLR
- -------------------------------------------------------------------------
</TABLE>
==========================================================================
NOTICE
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3
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ATTACHMENT K
ACQUISITION AGREEMENT #9107
LIST OF CMS 40 R1 FEATURES IN MSC/VLR AND HLR (CONT.)
<TABLE>
<CAPTION>
FEATURE TITLE BASIC OPTION NODE
- -------------------------------------------------------------------------
<C> <S> <C> <C> <C>
70.1 IN Services Access [X] MSC/VLR
- -------------------------------------------------------------------------
71.1 Immediate Call Itemization [X] MSC/VLR
- -------------------------------------------------------------------------
72.1 Single Personal Number in HLR [X] HLR
- -------------------------------------------------------------------------
73.1 Single Personal Number in MSC/VLR [X] MSC/VLR
- -------------------------------------------------------------------------
77.1 Selective Authentication [X] MSC/VLR
- -------------------------------------------------------------------------
79.2 Equipment Identity Control in MSC/VLR [X] MSC/VLR
- -------------------------------------------------------------------------
81.1 Handling of MSISDN in MSC/VLR [X] MSC/VLR
- -------------------------------------------------------------------------
82.1 Blue MTP [X] MSC/VLR
- -------------------------------------------------------------------------
84.1 MAP-based interface HLR-AUC [X] HLR
- -------------------------------------------------------------------------
85.1 MAP-based interface MSC/VLR-EIR [X] MSC/VLR
- -------------------------------------------------------------------------
86.2 MAP-based interface MSC/VLR-SMS-C [X] MSC/VLR
- -------------------------------------------------------------------------
88.1 Basic Packet Service (BS 32-34) [X] MSC/VLR
- -------------------------------------------------------------------------
90.1 Multi Party Service [X] MSC/VLR
- -------------------------------------------------------------------------
93.1 Operator-Determined Barring in MSC/VLR [X] MSC/VLR
- -------------------------------------------------------------------------
94.1 Operator-Determined Barring in HLR [X] HLR
- -------------------------------------------------------------------------
95.1 Dual Numbering in MSC/VLR [X] MSC/VLR
- -------------------------------------------------------------------------
96.1 Suppression of Announcement at Diverted [X] HLR
Call
- -------------------------------------------------------------------------
97.1 Announcement at Disconnection (Post [X] MSC/VLR
Answer)
- -------------------------------------------------------------------------
99.1 Routing of Call from a Grey-listed IMEI [X] MSC/VLR
- -------------------------------------------------------------------------
101.1 Subscription Procedure Charging [X] MSC/VLR
- -------------------------------------------------------------------------
102.1 Direct File Output [X] MSC/VLR
- -------------------------------------------------------------------------
103.1 IMSI Changeover [X] HLR
- -------------------------------------------------------------------------
104.1 File Output for Subscriber Data in HLR [X] HLR
- -------------------------------------------------------------------------
105.2 Remote Control Equipment [X] MSC/VLR
- -------------------------------------------------------------------------
107.1 Blue ISUP [X] MSC/VLR
- -------------------------------------------------------------------------
108.1 File Transfer Access and Management [X] MSC/VLR
- -------------------------------------------------------------------------
109.1 More Powerful SP (CP-5) in MSC/VLR [X] MSC/VLR
- -------------------------------------------------------------------------
110.2 Basic Call Handling in HLR [X] HLR
- -------------------------------------------------------------------------
111.1 Basic Operation and Maintenance [X] HLR
- -------------------------------------------------------------------------
112.1 Charging File Management [X] MSC/VLR
- -------------------------------------------------------------------------
113.1 IN Subscription [X] HLR
- -------------------------------------------------------------------------
114.1 Immediate Call Itemization Subscription [X] HLR
- -------------------------------------------------------------------------
115.1 Dual Numbering in HLR [X] HLR
- -------------------------------------------------------------------------
119.1 General Performance Management in [X] MSC/VLR
MSC/VLR
- -------------------------------------------------------------------------
122.1 Magnetic Transfer Group (MTG) [X] MSC/VLR
- -------------------------------------------------------------------------
129.1 Geographical Differentiated Charging [X] MSC/VLR
- -------------------------------------------------------------------------
131.1 Definition of Geographical Locations [X] MSC/VLR
- -------------------------------------------------------------------------
132.1 Provision of Location Numbers [X] MSC/VLR
- -------------------------------------------------------------------------
135.1 Administration of ZoneCodes [X] HLR
- -------------------------------------------------------------------------
138.1 Local Subscription [X] MSC/VLR
- -------------------------------------------------------------------------
139.1 Regional Subscription [X] MSC/VLR
- -------------------------------------------------------------------------
</TABLE>
NOTICE
- ----------------------------------------------------------------------------
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4
<PAGE>
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ATTACHMENT K
ACQUISITION AGREEMENT #9107
- --------------------------------------------------------------------------------
LIST OF CMS 40 R1 FEATURES IN MSC/VLR AND HLR (CONT.)
<TABLE>
<CAPTION>
FEATURE TITLE BASIC OPTION NODE
- -------------------------------------------------------------------------
<C> <S> <C> <C> <C>
142.1 Telephony Subscription [X] HLR
- -------------------------------------------------------------------------
143.1 Modem Services and Basic PAD [X] HLR
Subscription
- -------------------------------------------------------------------------
144.1 Fax Service Subscription [X] HLR
- -------------------------------------------------------------------------
145.1 Call Waiting and Call Hold Subscription [X] HLR
- -------------------------------------------------------------------------
146.1 Basic Packet Service Subscription [X] HLR
- -------------------------------------------------------------------------
147.1 Multi Party Service Subscription [X] HLR
- -------------------------------------------------------------------------
148.1 Calling Line Identification Services [X] HLR
Subscription
- -------------------------------------------------------------------------
150.2 Authentication Data Handling [X] HLR
- -------------------------------------------------------------------------
153.1 Alternate Speech/Fax Subscription in [X] MSC/VLR
MSC/VLR
- -------------------------------------------------------------------------
154.1 Alternate Speech/Fax Subscription in HLR [X] HLR
- -------------------------------------------------------------------------
156.1 Roaming Restriction per HLR [X] HLR
- -------------------------------------------------------------------------
157.1 Roaming Restriction per Subscription [X] MSC/VLR
- -------------------------------------------------------------------------
158.1 Load Management [X] MSC/VLR
- -------------------------------------------------------------------------
159.1 Test and Fault Localization [X] MSC/VLR
- -------------------------------------------------------------------------
160.1 Fault Isolation [X] MSC/VLR
- -------------------------------------------------------------------------
161.1 Operation and Maintenance of the Group [X] MSC/VLR
Switch
- -------------------------------------------------------------------------
162.1 Supervision [X] MSC/VLR
- -------------------------------------------------------------------------
164.2 Software File Congestion Supervision [X] MSC/VLR
- -------------------------------------------------------------------------
171.1 Interactive Announcement Machine [X] MSC/VLR
EriVoice 500
- -------------------------------------------------------------------------
185.1 Ericsson Echo Canceler [X] MSC/VLR
- -------------------------------------------------------------------------
186.1 Optical Disc Control [X] HLR
- -------------------------------------------------------------------------
188.1 GSM Phase 2 Signaling for Suppementary [X] MSC/VLR
Services
- -------------------------------------------------------------------------
190.2 Sema Group - AUC [X] AUC
- -------------------------------------------------------------------------
191.2 Sema Group - EIR [X] EIR
- -------------------------------------------------------------------------
266.1 White TCAP-ANSI in HLR [X] HLR
- -------------------------------------------------------------------------
278.1 Operation and Maintenance of R1 [X] MSC/VLR
Signaling - ANSI
- -------------------------------------------------------------------------
298.1 White TCAP-ANSI in MSC/VLR [X] MSC/VLR
- -------------------------------------------------------------------------
759.1 More Powerful SP (CP-5) in HLR [X] HLR
- -------------------------------------------------------------------------
762.1 APZ 212 11 Control in HLR [X] HLR
- -------------------------------------------------------------------------
763.1 APZ 212 11 Control in MSC/VLR [X] MSC/VLR
- -------------------------------------------------------------------------
792.1 AXE 10/IOG 11 Interface to OSS in [X] MSC/VLR
MSC/VLR
- -------------------------------------------------------------------------
793.1 AXE 10/IOG 11 Interface to OSS in HLR [X] HLR
- -------------------------------------------------------------------------
798.3 Cell Traffic Recording [X] MSC/VLR
- -------------------------------------------------------------------------
826.1 Back-up in Main Store in MSC/VLR [X] MSC/VLR
- -------------------------------------------------------------------------
827.1 Back-up in Main Store in HLR [X] HLR
- -------------------------------------------------------------------------
835.1 APZ 212 20 Control in HLR [X] HLR
- -------------------------------------------------------------------------
901.1 APZ 212 20 Control in MSC/VLR [X] MSC/VLR
- -------------------------------------------------------------------------
1069.1 ANSI ISUP [X] MSC/VLR
- -------------------------------------------------------------------------
1071.1 Equal Access in MSC/VLR [X] MSC/VLR
- -------------------------------------------------------------------------
1072.1 Equal Access in HLR [X] HLR
- -------------------------------------------------------------------------
</TABLE>
- --------------------------------------------------------------------------------
NOTICE
NOT FOR USE OR DISCLOSURE OUTSIDE OMNIPOINT EXCEPT UNDER WRITTEN AGREEMENT
- --------------------------------------------------------------------------------
5
<PAGE>
- --------------------------------------------------------------------------------
ATTACHMENT K
ACQUISITION AGREEMENT #9107
- --------------------------------------------------------------------------------
LIST OF CMS 40 R1 FEATURES IN MSC/VLR AND HLR (CONT.)
<TABLE>
<CAPTION>
FEATURE TITLE BASIC OPTION NODE
- -------------------------------------------------------------------------
<C> <S> <C> <C> <C>
1073.1 Feature Group B and D [X] MSC/VLR
- -------------------------------------------------------------------------
1074.1 Emergency Number 911 [X] MSC/VLR
- -------------------------------------------------------------------------
1076.1 Transmission Maintenance of T1 [X] MSC/VLR
- -------------------------------------------------------------------------
1078.1 ANSI MTP in HLR [X] HLR
- -------------------------------------------------------------------------
1079.1 ANSI MTP in MSC/VLR [X] MSC/VLR
- -------------------------------------------------------------------------
1080.1 Signaling Connection Control Part in HLR [X] HLR
- -------------------------------------------------------------------------
1083.1 Signaling Connection Control Part in [X] MSC/VLR
MSC/VLR
- -------------------------------------------------------------------------
1085.1 SS7 Supervision in MSC/VLR [X] MSC/VLR
- -------------------------------------------------------------------------
1086.1 SS7 Performance Management in MSC/VLR [X] MSC/VLR
- -------------------------------------------------------------------------
1087.1 R1 Signaling [X] MSC/VLR
- -------------------------------------------------------------------------
1088.1 SS7 Performance Management in HLR [X] HLR
- -------------------------------------------------------------------------
1089.1 SS7 Supervision in HLR [X] HLR
- -------------------------------------------------------------------------
</TABLE>
- --------------------------------------------------------------------------------
NOTICE
NOT FOR USE OR DISCLOSURE OUTSIDE OMNIPOINT EXCEPT UNDER WRITTEN AGREEMENT
- --------------------------------------------------------------------------------
6
<PAGE>
- ----------------------------------------------------------------------------
ATTACHMENT K
ACQUISITION AGREEMENT #9107
============================================================================
LIST OF CMS 40 R2 FEATURES IN MSC/VLR, HLR, AUC, AND EIR
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------
NEW
FEATURE TITLE BASIC OPTION NODE
- ---------------------------------------------------------------------------
<C> <S> <C> <C> <C>
3.1 Transmission Performance Supervision of y MSC/VLR
T1 Trunks with Superframe or Extended
Superframe
- ----------------------------------------------------------------------------
31.1 Mobile Subscriber Purging y MSC/VLR
- ----------------------------------------------------------------------------
120.1 ANSI ISUP2 y MSC/VLR
- ----------------------------------------------------------------------------
177.1 Unstructured Supplementary Services y MSC/VLR
Data in MSC/VLR
- ----------------------------------------------------------------------------
178.1 Unstructured Supplementary Services y HLR
Data in HLR
- ----------------------------------------------------------------------------
222.1 Support of Multiple Speech Coders y MSC/VLR
- ----------------------------------------------------------------------------
1054.1 Mobile Subscriber Purging y HLR
- ----------------------------------------------------------------------------
1115.1 Unstructured Supplementary Services y HLR
Data to external node
- ----------------------------------------------------------------------------
1116.1 Default Call Forwarding y HLR
- ----------------------------------------------------------------------------
1117.1 Mobile Subscriber priority level for y MSC/VLR
Channel Allocation in MSC/VLR
- ----------------------------------------------------------------------------
1123.1 Mobile Subscriber priority level for y HLR
Channel Allocation in HLR
- ----------------------------------------------------------------------------
1131.1 Enhanced IMEI check y MSC/VLR
- ----------------------------------------------------------------------------
1132.1 Release of Sequential Events (FORLOPP) y MSC/VLR
- ----------------------------------------------------------------------------
1140.1 Monitoring of Call Forwarding y HLR
Registrations
- ----------------------------------------------------------------------------
1155.1 Circuit Pool Handling y MSC/VLR
- ----------------------------------------------------------------------------
1157.1 Indication of Mobile Tariff Area to y MSC/VLR
Mobile Subscriber
(Home Zone Charging)
- ----------------------------------------------------------------------------
1159.1 Supervision and disconnection of long y MSC/VLR
duration calls
- ---------------------------------------------------------------------------
ENHANCED
FEATURE TITLE BASIC OPTION NODE
- ---------------------------------------------------------------------------
14.3 Call Barring Services y HLR
- ---------------------------------------------------------------------------
50.4 Mobile Application Part in MSC/VLR y MSC/VLR
- ---------------------------------------------------------------------------
51.4 Mobile Application Part in HLR y HLR
- ---------------------------------------------------------------------------
91.2 Calling Line Identification Services y MSC/VLR
- ---------------------------------------------------------------------------
94.2 Operator Determined Barring y HLR
- ---------------------------------------------------------------------------
104.2 Enhanced file output of Subscriber Data y HLR
from HLR and command initiated sending
of resets to VLR
- ---------------------------------------------------------------------------
105.3 Remote Control Equipment y MSC/VLR
- ---------------------------------------------------------------------------
164.4 Software File Congestion Supervision y MSC/VLR
- ---------------------------------------------------------------------------
184.1 Interactive Announcement Machine y MSC/VLR
EriVoice 700
- ---------------------------------------------------------------------------
190.3 Sema Group - AUC y AUC
- ---------------------------------------------------------------------------
191.3 Sema Group - EIR y EIR
- ---------------------------------------------------------------------------
</TABLE>
===========================================================================
NOTICE
NOT FOR USE OR DISCLOSURE OUTSIDE OMNIPOINT EXCEPT UNDER WRITTEN AGREEMENT
- ---------------------------------------------------------------------------
7
<PAGE>
- --------------------------------------------------------------------------------
ATTACHMENT K
ACQUISITION AGREEMENT #9107
- --------------------------------------------------------------------------------
LIST OF CMS 40 R2 FEATURES IN BSC
<TABLE>
<CAPTION>
NEW
FEATURE TITLE BASIC OPTION NODE
- --------------------------------------------------------------------------------
<C> <S> <C> <C> <C>
37.1 Selective Restart [X] BSC
- --------------------------------------------------------------------------------
59.1 Transceiver Handler Load Distribution [X] BSC
- --------------------------------------------------------------------------------
87.1 Support of 1020 Transceivers in the BSC [X] BSC
- --------------------------------------------------------------------------------
117.1 Flexible Channel Allocation [X] BSC
- --------------------------------------------------------------------------------
165.1 RBS 2000 Digital Path Supervision [X] BSC
- --------------------------------------------------------------------------------
195.1 Alarm Coordination [X] BSC
- --------------------------------------------------------------------------------
197.1 Alarm Suppression [X] BSC
- --------------------------------------------------------------------------------
198.1 Automatic Recovery at Frequency Hopping [X] BSC
- --------------------------------------------------------------------------------
904.1 Double BCCH Allocation Lists [X] BSC
- --------------------------------------------------------------------------------
909.1 Idle Channel Measurement [X] BSC
- --------------------------------------------------------------------------------
911.1 Cell Load Sharing [X] BSC
- --------------------------------------------------------------------------------
913.1 Immediate Assignment on Traffic Channel [X] BSC
- --------------------------------------------------------------------------------
915.1 Channel Administration [X] BSC
- --------------------------------------------------------------------------------
923.1 Differential Channel Allocation [X] BSC
- --------------------------------------------------------------------------------
ENHANCED
FEATURE TITLE BASIC OPTION NODE
- --------------------------------------------------------------------------------
260.3 Dynamic Mobile Station Power Control [X] BSC
- --------------------------------------------------------------------------------
910.2 Dynamic BTS Power Control [X] BSC
- --------------------------------------------------------------------------------
</TABLE>
- --------------------------------------------------------------------------------
NOTICE
NOT FOR USE OR DISCLOSURE OUTSIDE OMNIPOINT EXCEPT UNDER WRITTEN AGREEMENT
- --------------------------------------------------------------------------------
8
<PAGE>
- --------------------------------------------------------------------------------
ATTACHMENT K
ACQUISITION AGREEMENT #9107
================================================================================
<TABLE>
<CAPTION>
LIST OF CMS 40 R2 FEATURES IN OSS AND BGw
- --------------------------------------------------------------------------------
NEW
FEATURE TITLE BASIC OPTION NODE
- --------------------------------------------------------------------------------
<C> <S> <C> <C> <C>
2.1 Statistical Reports, Basic y OSS
Package
- --------------------------------------------------------------------------------
10.1 XM, Operations Procedure y OSS
Support
- --------------------------------------------------------------------------------
22.1 XM, Log Book y OSS
- --------------------------------------------------------------------------------
29.1 FM Alarm Log Analysis y OSS
- --------------------------------------------------------------------------------
30.1 XM, Integrated Document y OSS
Tool
- --------------------------------------------------------------------------------
39.1 DXX Alarm Interface y OSS
- --------------------------------------------------------------------------------
98.1 BTS Alarm Management y OSS
- --------------------------------------------------------------------------------
134.1 Application Builder y BGw
- --------------------------------------------------------------------------------
196.1 Specified Alarm Interface y OSS
- --------------------------------------------------------------------------------
292.1 TMOS Toolbox y OSS
- --------------------------------------------------------------------------------
475.1 BTS Hardware Management y OSS
- --------------------------------------------------------------------------------
476.1 BTS Configuration y OSS
- --------------------------------------------------------------------------------
480.1 AXE 10 Software Management y OSS
- --------------------------------------------------------------------------------
ENHANCED
FEATURE TITLE BASIC OPTION NODE
- --------------------------------------------------------------------------------
405.6 Cellular Network y OSS
Administration
- --------------------------------------------------------------------------------
406.3 XM, Fault Management y OSS
- --------------------------------------------------------------------------------
408.3 XM, Traffic Measurement y OSS
Tool
- --------------------------------------------------------------------------------
409.4 XM, Traffic Measurement y OSS
for AXE 10
- --------------------------------------------------------------------------------
412.4 Radio Network Measurement y OSS
Functions
- --------------------------------------------------------------------------------
413.4 Radio Network Recording y OSS
Functions
- --------------------------------------------------------------------------------
417.4 Cellular Network y OSS
Administration Interface
- --------------------------------------------------------------------------------
418.2 BTS Software Management y OSS
- --------------------------------------------------------------------------------
420.3 Basic OSS Administration y OSS
- --------------------------------------------------------------------------------
421.2 Cellular Network Activity y OSS
Manager
- --------------------------------------------------------------------------------
439.3 Database y OSS
- --------------------------------------------------------------------------------
440.3 Security y OSS
- --------------------------------------------------------------------------------
</TABLE>
================================================================================
NOTICE
NOT FOR USE OR DISCLOSURE OUTSIDE OMNIPOINT EXCEPT UNDER WRITTEN AGREEMENT
- --------------------------------------------------------------------------------
9
<PAGE>
AGREEMENT 9107
OMNIPOINT COMMUNICATIONS INC.
ATTACHMENT L
ORDER CANCELLATION POLICY
-------------------------
Listed below are specific charges to be assessed to Buyer that represent the
reasonable, non-recoverable costs expected to be incurred by Ericsson prior to,
or in connection with, the cancellation of an order, including, where
applicable, labor charges of Ericsson personnel, reasonable restocking charges,
and shipping charges.
RBS EQUIPMENT (SUPPLIER - ERICSSON)
Situation Cancellation Penalty Percentage
- -------------------------------------------------------------------------------
. Order is canceled before shipment
to requested customer site. 5% of order value
. Order is canceled after shipment
to requested customer site but
before ordered equipment is installed. 15% of order value
. Custom Order* (i.e., cable
construction) canceled before
manufacturing has commenced on
that portion of the order. 5% of order value
. Custom Order* (i.e., cable
construction) canceled after
manufacturing has commenced on
that portion of the order. 100% of the value of the portion
of the order for which
manufacturing has commenced
* Custom orders: If, for example, 10 custom cables were ordered but
manufacturing has commenced on only 3 cables, a 100% charge will be levied
against 3 cables and a 5% charge will be levied against the remaining seven of
the order.
-1-
<PAGE>
SWITCH EQUIPMENT (SUPPLIER - ERICSSON)
Switch equipment refers to any AXE switching equipment component order. Switch
equipment specifically excludes the ordering of an entire switch (e.g., Mini,
211, 212).
Situation Cancellation Penalty Percentage
- --------------------------------------------------------------------------------
. Order is canceled before shipment
to requested customer site. 5% of order value
. Order is canceled after shipment
to requested customer site but before
installation of switch equipment. 15% of order value
SOFTWARE FEATURES
Situation Cancellation Penalty Percentage
- --------------------------------------------------------------------------------
. Order is canceled before
application engineering
(i.e., station parameters or
data transcription) has commenced. 5% of software order value
. Order is canceled after application
engineering (i.e., station parameters
or data transcription) has commenced. 10% of software order value
NOTE: All switch hardware associated with the software features is subject to
the cancellation charge listed for Switch Equipment.
-2-
<PAGE>
DOMESTIC SUPPLIERS OTHER THAN ERICSSON
Situation Cancellation Policy
- --------------------------------------------------------------------------------
. Ericsson orders materials from a
domestic supplier and the material
CAN be resold by the domestic supplier
to Ericsson or another vendor. 25% of order value
. Ericsson orders materials from a
domestic supplier and the material
CANNOT be resold by the domestic
supplier to Ericsson or another
vendor (i.e., specifically measured
coax cable for an antenna run). 100% of order value - and such
material will be delivered to
Buyer**
** In essence, such orders are noncancelable.
-3-
<PAGE>
*CONFIDENTIAL INFORMATION; ATTACHMENT M-1
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
*
1
<PAGE>
*CONFIDENTIAL INFORMATION;
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
*
2
<PAGE>
*CONFIDENTIAL INFORMATION;
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
*
3
<PAGE>
*CONFIDENTIAL INFORMATION;
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
*
4
<PAGE>
*CONFIDENTIAL INFORMATION;
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
*
5
<PAGE>
*CONFIDENTIAL INFORMATION;
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
*
6
<PAGE>
*CONFIDENTIAL INFORMATION;
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
*
7
<PAGE>
*CONFIDENTIAL INFORMATION;
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
*
8
<PAGE>
*CONFIDENTIAL INFORMATION;
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
*
9
<PAGE>
*CONFIDENTIAL INFORMATION;
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
*
10
<PAGE>
*CONFIDENTIAL INFORMATION;
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
*
11
<PAGE>
*CONFIDENTIAL INFORMATION;
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
*
12
<PAGE>
*CONFIDENTIAL INFORMATION;
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
*
13
<PAGE>
*CONFIDENTIAL INFORMATION;
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
*
14
<PAGE>
*CONFIDENTIAL INFORMATION;
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
*
15
<PAGE>
*CONFIDENTIAL INFORMATION;
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
*
16
<PAGE>
*CONFIDENTIAL INFORMATION;
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
*
17
<PAGE>
*CONFIDENTIAL INFORMATION;
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
*
18
<PAGE>
*CONFIDENTIAL INFORMATION;
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
*
19
<PAGE>
*CONFIDENTIAL INFORMATION;
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
*
20
<PAGE>
*CONFIDENTIAL INFORMATION; ATTACHMENT M-2
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
*
1
<PAGE>
*CONFIDENTIAL INFORMATION;
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
*
1
<PAGE>
*CONFIDENTIAL INFORMATION;
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
*
2
<PAGE>
*CONFIDENTIAL INFORMATION;
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
*
4
<PAGE>
*CONFIDENTIAL INFORMATION;
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
*
5
<PAGE>
*CONFIDENTIAL INFORMATION;
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
*
6
<PAGE>
*CONFIDENTIAL INFORMATION; ATTACHMENT M-3
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
*
1
<PAGE>
*CONFIDENTIAL INFORMATION;
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
*
2
<PAGE>
*CONFIDENTIAL INFORMATION;
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
*
3
<PAGE>
*CONFIDENTIAL INFORMATION; ATTACHMENT M-4
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
*
1
<PAGE>
*CONFIDENTIAL INFORMATION;
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
*
2
<PAGE>
*CONFIDENTIAL INFORMATION;
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
*
3
<PAGE>
*CONFIDENTIAL INFORMATION;
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
*
4
<PAGE>
*CONFIDENTIAL INFORMATION;
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
*
5
<PAGE>
*CONFIDENTIAL INFORMATION;
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
*
6
<PAGE>
*CONFIDENTIAL INFORMATION;
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
*
7
<PAGE>
Attachment N
OMNIPOINT CORPORATION
---------------------
This section has been intentionally omitted.
Ericsson, Inc.-Not for use of disclosure outside Omnipoint except under written
agreement
<PAGE>
Attachment O
OMNIPOINT CORPORATION
---------------------
This section has been intentionally omitted.
Ericsson, Inc.-Not for use of disclosure outside Omnipoint except under written
agreement
<PAGE>
Attachment P
OMNIPOINT CORPORATION
---------------------
This section has been intentionally omitted.
Ericsson, Inc.-Not for use of disclosure outside Omnipoint except under written
agreement.
<PAGE>
ATTACHMENT Q
ACQUISITION AGREEMENT #9107
OMNIPOINT CORPORATION
---------------------
TECHNICAL EDUCATION
-------------------
The actual training program will be developed jointly by Ericsson and Omnipoint
for off-site and on-site training after signing of the contract.
In witness hereof, all parties signed below are in agreement to the enclosed
Attachment Q, Revision B, dated February 15, 1996.
ERICSSON INC. OMNIPOINT CORPORATION
/s/ Lars Skoglund /s/ Curt Gervelis
- ----------------------------- -------------------------------
Lars Skoglund Curt Gervelis
Project Manager Network Engineer
NOTICE
NOT FOR USE OR DISCLOSURE OUTSIDE OMNIPOINT EXCEPT UNDER WRITTEN AGREEMENT
<PAGE>
ATTACHMENT Q
ACQUISITION AGREEMENT #9107
OMNIPOINT CORPORATION
---------------------
TECHNICAL EDUCATION
-------------------
INTRODUCTION
This attachment offers alternatives to meet the CMS 40 Mobile Switching Center
(MSC), Base Station Controller (BSC), and Base Transceiver Station (BTS) minimal
technical training requirements. An expanded list of CMS 40 courses is enclosed
for your review and after contract signing a CMS 40 course catalogue will be
provided.
TECHNICAL EDUCATION CENTER STUDENT CERTIFICATION PROGRAM
The program is a competency development program with basic core courses and
several areas of concentration. CMS 40 offers three areas of concentration:
MSC, BSC, and BTS. Within each area of concentration, multiple levels of
technical competence are possible (MSC has 4 levels and BTS has 3 levels).
. LEVEL 1 Provides training required to perform basic routines and
administration under the guidance of a technician certified at Level 3
through this student certification program.
. LEVEL 2 For the technician required to perform normal operation and
maintenance activities using standard Ericsson exchange documentation.
. LEVEL 3 For the technician who will diagnose and repair both hardware
and some software faults, as well as perform extended operation and
maintenance functions.
. LEVEL 4 For the technician/engineer who is trained to be a trouble
shooter on both hardware and software, as well as have a strong command
of advanced functions, features and system capabilities.
NOTE: A Technical Education Student Certification is required as a prerequisite
to the corresponding level of Operations and Maintenance (O&M) Certification.
NOTICE
NOT FOR USE OR DISCLOSURE OUTSIDE OMNIPOINT EXCEPT UNDER WRITTEN AGREEMENT
1
<PAGE>
ATTACHMENT Q
ACQUISITION AGREEMENT #9107
STEPS:
To become certified, through the Technical Education Center's Student
Certification Program, three steps must be completed. The student must:
1. Successfully complete the courses identified (80% or better score in each
course). These required courses are listed in the ETEC course catalog.
2. Have the specified amount of work field experience.
3. Submit an application for certification, at which time Ericsson Inc. will
notify the employee's supervisor or team leader of student competency
development certification eligibility. If the employee has met all
requirements for level requested, Ericsson will send a certificate of
certification to the employee's supervisor.
NOTES:
A Credit for passing courses will not be automatic. Students will be
evaluated via written quizzes, performance of lab exercises, and
observation of the student's ability to perform.
B All instructors teaching concentration courses are required to be certified
to teach the class. Instructor certification includes two elements:
Professional Certification and Technical Certification.
C All courseware has been revised to include the new evaluation criteria, as
well as recent Cellular Network Administration's (CNA) improvements.
Also, additional lab exercises are added as needed.
D In the event that a student wishes to waive a course that is required for
certification, his/her supervisor must submit a course description or
outline of an equivalent course plus a certificate of completion for the
substituted course. The Certification Office will determine the
eligibility of the substituted course description or outline needs to be
submitted per customer, so that additional course descriptions or outlines
need not be submitted for that customer's employees.
NOTICE
NOT FOR USE OR DISCLOSURE OUTSIDE OMNIPOINT EXCEPT UNDER WRITTEN AGREEMENT
2
<PAGE>
ATTACHMENT Q
ACQUISITION AGREEMENT #9107
CURRICULUM
The Ericsson Technical Education Center suggests the following CMS 40 course for
O&M personnel:
CMS 40 SYSTEM INTRODUCTION, 4 DAYS
This course provides management and non-management personnel a basic knowledge
and understanding of Ericsson's PCS 1900 equipment located at the Mobile
Switching Center (MSC), Base Station Controller (BSC) and Base Transceiver
Station (BTS).
The CMS 40 System Introduction course is a prerequisite for all CMS 40 Operation
and Maintenance courses. The AXE-10 O&M course meets the prerequisite for the
MSC and BSC O&M courses.
The CMS 40 System Introduction course can be presented the week prior to the
AXE-10 O&M training in Richardson. Subject to instructor availability, it could
be presented at the customer location.
AXE -10 OPERATION AND MAINTENANCE TRAINING, 15 DAYS
This course provides managers, engineers, and switch technicians a working
knowledge of the AXE 10, its equipment, operation, and maintenance. The AXE 10
is the basis of the switching system in CMS 40, Ericsson's PCS 1900 system.
This course will precede the MSC and BSC Operation and Maintenance courses.
This course relies extensively on hands-on practices for competence development.
Although it is not recommended for use at customer location, this can be
accommodated with proper provisioning.
CMS 40 MSC OPERATION AND MAINTENANCE, 5 DAYS
This course provides managers, engineers, and switch technicians a working
knowledge of the Mobile Switching Center (MSC), Visitor Location Register (VLR)
and Home Location Register (HLR) operation and maintenance.
This course relies extensively on hands-on practices for competence development.
Although it is not recommended for use at customer location, this can be
accommodated with proper provisioning.
CMS 40 BSC OPERATION AND MAINTENANCE, 5 DAYS
This course provides managers, engineers, and switch technicians a working
knowledge of the Base Station Controller (BSC) operation and maintenance.
NOTICE
NOT FOR USE OR DISCLOSURE OUTSIDE OMNIPOINT EXCEPT UNDER WRITTEN AGREEMENT
3
<PAGE>
ATTACHMENT Q
ACQUISITION AGREEMENT #9107
This course relies extensively on hands-on practices for competence development.
Although it is not recommended for use at customer location, this can be
accommodated with proper provisioning.
RBS 2000 OPERATION AND MAINTENANCE TRAINING, 5 DAYS
This course provides managers, engineers, and radio base station technicians a
working knowledge of the RBS 2000 Base Transceiver Stations (BTS)
commissioning, operation and maintenance
This course relies extensively on hands-on practices for competence development.
Although it is not recommended for use at customer location, this can be
accommodated with proper provisioning.
OPERATION SUPPORT SYSTEM TRAINING, 5 DAYS
This course provides BTS technicians, RF engineers, and switch technicians a
working knowledge of the Operation Support System (OSS).
This course relies extensively on hands-on practices for competence development.
Although it is not recommended for use at customer location, this can be
accommodated with proper provisioning.
NOTICE
NOT FOR USE OR DISCLOSURE OUTSIDE OMNIPOINT EXCEPT UNDER WRITTEN AGREEMENT
4
<PAGE>
ATTACHMENT Q
ACQUISITION AGREEMENT #9107
PRICING - CONTAINED IN SECTION A-15.
Advanced training is available for developing the system analysis skills for the
Employee. BSC training is advised for the more advanced field technician.
1996 TRAINING SCHEDULE
Ericsson's CMS 40 technical training schedule for minimal courses required for
certification is as follows.
<TABLE>
<CAPTION>
SYSTEM INTRO. (4 DAYS) LZU 108 3336/1
<S> <C> <C> <C>
Jan 9-12 Feb 27-Mar 1
Jan 30-Feb 2 Mar 19-22
AXE 10 O&M (15 DAYS) LZU 108 3354/1
Jan 15-Feb 2
Mar 4-22
MSC O&M (5 DAYS) LZU 108 3355/1
Jan 15-19 Mar 4-8
Feb 5-9 Mar 25-29
BSC O&M (5 DAYS) LZU 108 3356/1
Jan 22-26 Mar 11-15
Feb 12-16 Apr 1-5
RBS 2000 (5 DAYS) LZU 108 3357/1
Jan 15-19 Mar 4-8
Feb 5-9 Mar 25-29
OSS OPERATION (4 DAYS) LZU 108 3359/1
Jan 8-11 Mar 4-7
Feb 5-8
</TABLE>
Note: Schedule is subject to change. All courses must be checked for
availability by calling the training center at (214) 437-8294.
NOTICE
NOT FOR USE OR DISCLOSURE OUTSIDE OMNIPOINT EXCEPT UNDER WRITTEN AGREEMENT
5
<PAGE>
ATTACHMENT Q
ACQUISITION AGREEMENT #9107
COURSE REGISTRATION
On the following page is Ericsson technical training course registration form.
NOTICE
NOT FOR USE OR DISCLOSURE OUTSIDE OMNIPOINT EXCEPT UNDER WRITTEN AGREEMENT
6
<PAGE>
<TABLE>
<CAPTION>
ERICSSON
TECHNICAL EDUCATION CENTER PLEASE PRINT ALL INFORMATION BILLING INFORMATION
ENROLLMENT FORM
<S> <C> <C>
CLASSES TO BE ATTENDED Coordinator's
Name:
--------------------------
Student
Name:
--------------------------------
Course Number: LZU - Manager/Supervisor's Name:
Social Security No.: ------------------------
-----------------
Course Name:
---------------------------
Title: -------------------------------
------------------------------- Printed
Company: Date Class Begins: (MM/DD/YY)
-----------------------------
1st Choice:
Mail Stop: ----------------------
--------------------------- 2nd Choice: -------------------------------
----------------------
Mailing
Address:-----------------------------
Course Number: LZU - Manager/Supervisor's Tel. No.:
- ------------------------------------- -------------------------
-------------------------------
City: Course Name:
-------------------------------- ---------------------------
State: Zip Code: Date Class Begins: (MM/DD/YY)
------------- ---------
Country: 1st Choice: Cost Center:
----------------------------- ---------------------- -------------------
Postal Code: 2nd Choice: Purchase Order No.:
------------------------- ---------------------- ------------
Tel. No.:
----------------------------
Include Country Code if outside USA.
Fax. No.
-----------------------------
Mail applications to:
FOR OFFICE USE ONLY
QUESTIONS?
CMS 8800 Courses call: Registrar: ERICSSON, INC.
-----------------------------
214/437-8135 Date: M/S Training
---------------------------------- 740 E. Campbell
Confirmation# Richardson, TX 75081
CMS 40 Courses call: --------------------------
214/437-8294
Cancellation# or Fax form to:
-------------------------- 214/705-8522
</TABLE>
<PAGE>
ATTACHMENT Q
ACQUISITION AGREEMENT #9107
CMS 40 COURSES
- --------------
CMS 40 AXE Installation Testing
AXE Construction Technique, BYB 202
AXE Installation Methods for Supervisors
Power Systems Installation Test & Expansion
AXE Software
AXE Advanced Software Fault Handling
Telecool Compact Overview
Telecool Compact Operation & Maintenance
AXE 10 Operation & Maintenance (CBT)
CCITT No. 7 Signaling System (CBT)
AXE 10 Survey (CBT)
Telecom 2000: An Overview (CBT)
Telecom 2000: Fundamentals (CBT)
CMS 40 System Overview
CMS 40 System Introduction
CMS 40 AXE 10 Operation & Maintenance
CMS 40 MSC Operation & Maintenance
CMS 40 BSC Operation & Maintenance
CMS 40 RBS 2000 Operation & Maintenance
CMS 40 Data Translations
CMS 40 OSS Operations & Basic Administration
CMS 40 STS Operation
CMS 40 AUC/EIR Operation
CMS 40 Toll Ticketing Workshop
CMS 40 Advanced System Technique
CMS 40 Power Systems Operation & Maintenance
CMS 40 RF Engineering 2
CMS 40 Home Location Register (HLR) Operation
CMS 40 GIWU Operation & Maintenance
CMS 40 Charging Subsystem (CHS) Operation
CMS 40 RF Engineering 1
Introduction to the Intelligent Network (IN)
NOTICE
NOT FOR USE OR DISCLOSURE OUTSIDE OMNIPOINT EXCEPT UNDER WRITTEN AGREEMENT
8
<PAGE>
ATTACHMENT R
ACQUISITION AGREEMENT #9107
- --------------------------------------------------------------------------------
OMNIPOINT CORPORATION
---------------------
THIRD PARTY ENGINEERS
---------------------
In witness hereof, all parties signed below are in agreement to the enclosed
Attachment R, Revision C, dated February 15, 1996.
ERICSSON INC. OMNIPOINT CORPORATION
/s/ Lars Skoglund /s/ Curt Gervelis
___________________________ ___________________________________
Lars Skoglund Curt Gervelis
Product Manager Network Engineer
NOTICE
NOT FOR USE OR DISCLOSURE OUTSIDE OMNIPOINT EXCEPT UNDER WRITTEN AGREEMENT
<PAGE>
<TABLE>
<CAPTION>
Attachment R
-------------
<S> <C>
Donald Cox Professor, Electrical Engineering
Stanford University
Department of Electrical Engineering
Durand 305
Stanford, California 94305-4055
(415) 723-5443
Bruce Lusignian Professor, Electrical Engineering
Stanford University
Department of Electrical Engineering
Durand 305
Stanford, California 94305-4055
(415) 723-5443
Michael B. Pursley Holcombe Professor
Clemson University
Department of Electrical & Computer Engineering
102 Riggs Hall, Box 340915
Clemson, SC 29634-0915
(803) 656-1528
Theodore S. Rappaport Professor, Electrical Engineering
Virginia Polytechnic Institute & State University
Blacksburg, Virginia 24061
(703) 231-5643
Jack Holtzman WINLAB
Rutgers University
(908) 932-3849
John Litva Professor, Chair in Antennas and Director
Communications Research Laboratory
McMaster University
Hamilton, Ontario Canada
(905) 525-9140 ext. 23142
fax: (905) 521-2922
-1-
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
Elvino S. Sousa Associate Professor, Dept. of Electrical Engineering
University of Toronto
10 Kings College Road SF1 107
Toronto, Ontario M5S 1A4
(416) 978-3651
fax (905) 978-7423
Robert Bultitude Manager, Land Mobile and Indoor
Radio Propagation Research, Radio Science
Communications Research Centre
[Canada]
(613) 998-2775
fax: (613) 998-4077
</TABLE>
-2-
<PAGE>
ATTACHMENT S
ACQUISITION AGREEMENT #9107
- --------------------------------------------------------------------------------
OMNIPOINT CORPORATION
---------------------
ORDER & DELIVERY INTERVALS
--------------------------
In witness hereof, all parties signed below are in agreement to the enclosed
Attachment S, Revision B, dated February 14, 1996.
ERICSSON INC. OMNIPOINT CORPORATION
/s/ Lars Skoglund /s/ Curt Gervelis
_______________________________ _________________________________
Lars Skoglund Curt Gervelis
Product Manager Network Engineer
NOTICE
NOT FOR USE OR DISCLOSURE OUTSIDE OMNIPOINT EXCEPT UNDER WRITTEN AGREEMENT
1
<PAGE>
ATTACHMENT S
ACQUISITION AGREEMENT #9107
- --------------------------------------------------------------------------------
OMNIPOINT CORPORATION
---------------------
ORDER & DELIVERY INTERVALS
--------------------------
Ericsson intends to provide OCI with competitive Delivery Intervals consistent
with the following standard intervals. The intervals of the Network Elements
assume standard configuration and an accurate forecasting.
Forecasting within Ericsson is done on monthly bases. The Forecast has a 18
month horizon.
It is assumed that OCI give Ericsson a monthly review of the Forecast.
For the equipment to be delivered for the initial configuration, Ericsson will
meet these intervals provided that OCI maintains the general scope and timing
set forth in Attachment H (Project Schedule).
<TABLE>
<CAPTION>
NETWORK ELEMENT DELIVERY
- ---------------- --------------
<S> <C>
MSC 8 weeks
HLR 8 weeks
BSC 8 weeks
MXE 16 weeks
OSS 8 weeks
BILLING GATEWAY 8 weeks
SOG 8 weeks
AUC/EIR 16 weeks
RBS 2 weeks
</TABLE>
NOTICE
NOT FOR USE OR DISCLOSURE OUTSIDE OMNIPOINT EXCEPT UNDER WRITTEN AGREEMENT
1
<PAGE>
Attachment T
------------
OMNIPOINT TRAVEL HANDBOOK
TABLE OF CONTENTS
INTRODUCTION
SCOPE
OBJECTIVE
EXCEPTIONS TO POLICY
TRAVEL ARRANGEMENTS
AIR TRAVEL
Lowest Fare Routing
Travel Restrictions
Frequent Flyer Benefits
Class of Service
Travel Profile Forms
Prepaid Tickets
Unused Tickets
Extending Travel over a Weekend
Air Travel Insurance
LODGING
Hotels
Guidelines for Rates
Accommodations with Friends or Relatives
CAR RENTAL
Booking
Refueling
Automobile Insurance
Notification of Accidents
Personal Automobiles
MEALS AND ENTERTAINMENT
Personal Meal Allowance
Entertainment
MISCELLANEOUS EXPENSES
Phone Calls
Reimbursable Expenses
Non-Reimbursable Expenses
EXPENSE REIMBURSEMENT PROCESS
Forms and Receipts for Expenses
Procedure and Time Cycle
<PAGE>
OMNIPOINT CORPORATION
---------------------
REIMBURSEMENT POLICY
--------------------
INTRODUCTION
- ------------
We are pleased to provide you with your personal copy of the Omnipoint Employee
Travel Handbook. The information contained in the Handbook represents a
compilation of policy statements and travel guidelines which are designed to
assist you in performing your travel related activities in an efficient and
cost-effective manner. In addition, they will ensure compliance with Internal
Revenue Service requirements.
Business travel and entertainment costs represent a large operating expense for
the company. Our business relationship with Garber Travel should enable us to
take full advantage of savings opportunities whenever possible. Only with your
support and cooperation will we be able to control the significant and ever-
rising expenses related to business travel.
Please keep in mind that not every situation can be covered by a set of written
policies. Employees should use god judgment and common sense whenever the
appropriate action is not clear from the face of these policies. Please consult
your manager or your Human Resources representative if you have questions.
Thank you for your continuing support and cooperation.
SCOPE
- -----
This travel Handbook is applicable to all Omnipoint employees. It is intended to
serve as a guide for all business related travel.
OBJECTIVE
- ---------
Omnipoint's objective is to reimburse our employees for their reasonable and
actual travel expenses. All such expenses incurred by our employees are
eligible for reimbursement subject to the guidelines contained in this handbook.
In order to provide convenient and cost-effective travel services, Omnipoint
requires that all airline reservations, hotel reservations and car rental
reservations, as well as all en route changes, be made through Garber Travel.
Omnipoint has chosen Garber Travel as its exclusive designated corporate travel
agency. Garber Travel is located on-site at Omnipoint's office in Colorado
Springs. In addition, Garber Travel's offices in Montvale, NJ, Arlington, VA,
and Newport Beach, CA will handle travel arrangements for Omnipoint headquarters
and field locations.
EXCEPTION TO POLICY
- -------------------
Unless specifically authorized in this policy, expenditures to the contrary are
not authorized. Employees submitting expense reports that are not in compliance
risk delayed or partial reimbursement, unless the exception has the prior
approval of the Vice President of Human Resources. Cases of significant or
willful abuse may result in disciplinary action.
<PAGE>
TRAVEL ARRANGEMENTS
- -------------------
AIR TRAVEL
Employees must make all travel arrangements through Garber Travel. The
locations, telephone numbers and hours of operation are as follows:
Garber Travel
c/o Omnipoint
1365 Garden of the Gods Road
Colorado Springs, CO 80907
(719) 548-1200
Monday-Friday, 9:00am-6:00pm, Mountain Time
Garber Travel
4000 MacArthur Boulevard, Suite 102
Newport Beach, CA
(714) 752-7080 direct
(800) 245-2835 toll-free
(714) 752-8347 fax
Monday-Friday, 8:00am-5:00pm, Pacific Time
Garber Travel
210 Summit Avenue
C Building, 1st Floor
Montvale, NJ 07645
(201) 391-6300 direct
(800) 359-7949 toll-free
(201) 391-6300 fax
Monday-Friday 8:00am-5:00pm, Eastern Time
Garber Travel
Stafford Place
4201 Wilson Boulevard
Arlington, VA 22203
(703) 807-0300 direct
(800) 816-8717 toll-free
(703) 807-0307 fax
Monday-Friday, 8:30am-5:30pm, Eastern Time
All travelers are required to take the lowest possible coach fare for air
travel. Reservations should be booked as early as possible to take full
advantage of any discounts or economy fares that are available. Air travel
arrangements will not be influenced by airline preferences or frequent flyer
mileage programs if there is increased cost to Omnipoint. In addition, personal
travel plans may be arranged through Garber Travel, should anyone want this
service from them. When combining business and personal travel, employees are
responsible for any additional cost above what the lowest cost business trip
would be.
<PAGE>
Lowest Fare Routing
Omnipoint's intent is to achieve maximum practical savings on air travel
expenses. All employees will travel coach class, or on specially reduced fares
when available. Garber Travel will book the lowest available fare for direct
routing. (Employees will not be requested to make unnecessary connections for
fare savings.) Any exceptions must be based on business need, and will be noted
in Garber Travel's management reports to Omnipoint.
Travel Restrictions
The frequency of air travel will, on occasion, create situations where several
individuals may be scheduled for the same flight. To minimize the loss to the
company should a single accident occur, some restrictions regarding joint
traveling are important. Therefore, no more than three executive officers or a
total of ten employees may travel together on the same flight.
Garber Travel has been authorized to enforce these restrictions.
Frequent Flyer Benefits
Employees may express an airline preference and are personally entitled to
accumulate points on airline frequent flyer programs, as long as no unnecessary
additional expenses are incurred by the company.
Class of Service
Coach Class will be used for all domestic flights. Business class may be
selected for international flights over eight hours long, or for shorter
international flights where a full business day has been scheduled for the
arrival day.
Travel Profile Forms
All employees expected to travel once a year or more must submit a completed
Travel Profile to Garber Travel. It is the traveler's responsibility to notify
Garber Travel, via telephone or in writing, of any changes or updates to
existing profile. Additional profile forms can be obtained from Garber Travel.
Prepaid Tickets
Prepaid tickets (to be picked up at the airport) are more costly to Omnipoint,
and should only be used in emergency situations.
Unused Tickets
Unused tickets should be returned immediately to Garber Travel so that a prompt
refund may be obtained.
Extending Travel over a Weekend
Travel over a Saturday night can result in substantial saving in air fare. If
the total cost of the trip to the business destination is lowered by the
traveler staying over a Saturday night, and the traveler wishes to do so,
Omnipoint will assume the cost of additional hotel, car rental and reasonable
meal expenses as long as there is a net savings to the company.
<PAGE>
Air Travel Insurance
Omnipoint provides travel accident insurance coverage for employees while
traveling on company business in accordance with Omnipoint policy in effect at
that time.
Management Reports
Each month Garber Travel will provide Omnipoint reports documenting all travel
that has occurred. Analysis of these reports, including exceptions to policy
which have occurred, will help assure the company is operating in a cost
effective manner.
LODGING
Hotels
Hotel accommodations for each night away from home on company business will be
reimbursed at actual cost. All hotel reservations must be made through Garber
Travel, unless attendance at a convention, seminar or other business function
dictates otherwise.
Hotel charges should be limited to room, tax, meals and telephone expenses as
required. Room service and other miscellaneous services should not be used
unless necessary. On business trips which extend beyond seven days,
reimbursement will be made for reasonable hotel laundry and valet service
expenses.
It is strongly recommended that on all business long distance telephone calls
(particularly calls made from hotel rooms) you use a telephone credit card if
possible, as there is a substantial savings from hotel phone rates.
Lodging charges are to be billed to the traveler's credit card, and reported on
an expense report. The original hotel folio bill is always required
documentation for reimbursement of lodging charges, regardless of hotel cost.
For overseas travel a copy of the credit card voucher is also required.
Guidelines for Rates
Garber Travel will usually make hotel reservations in most travel situations.
At time, employees may have to make their own arrangements. Employees should
always exercise care in obtaining only moderately price rooms. In cities where
we have negotiated hotel rates, those hotel should be used first. In other
instances, reasonable and moderate accommodations should be considered.
Accommodations with Friends or Relatives
Should an employees stay overnight with friends or family while on company
business, the employee may on occasion buy a gift or a meal for the host, and
will be reimbursed for the expense. For tax purposes, a receipt is always
required for this reimbursement.
<PAGE>
CAR RENTAL
Booking
All car rental reservations must be booked through Garber Travel. Omnipoint
has designated National Car Rental Company as its primary car rental supplier.
Employees traveling alone should use a compact to intermediate size car while on
company business.
Cars should be rented only when other means of transportation are unavailable,
more expensive or impractical. The use of a rental car should be based on
business and/or transportation need, not as a matter of personal convenience.
Refueling
Prior to returning the rental car, please refuel the car to eliminate the
refueling service charge by the car rental company. The gasoline expense should
be included, with a receipt, on the expense report. Car rental agencies charge
a very large premium price for gasoline when refueling at the airport.
Automobile Insurance
When renting with National in the U.S., employees should decline optional
insurance coverage, as it is included under our contract with National. If
National is not used, additional coverage may be purchased if it isn't provided
under the employee's personal insurance on rentals.
When renting internationally, additional coverage should be accepted regardless
of which rental company is being used.
Notification of Accidents
If you are involved in an accident while operating a rental car on company
business, immediately make the following notifications:
1. the local police station
2. the local car rental agency representative
3. Omnipoint Human Resources representative
The notification should include the date, time and place the accident occurred,
the name(s) of the other driver(s), passengers or witnesses, and the drivers
license number(s) of the other driver(s).
Personal Automobiles
Employees using their personal car for Omnipoint business should receive
authorization to do so from their immediate manager. Employees will be
reimbursed $.30 per mile plus parking and toll charges, for which receipts are
required for reimbursement.
Omnipoint covers excess liability insurance which covers employees driving
personal cars on company business. This is excess liability insurance over the
above the employee's own liability insurance. Omnipoint doesn't carry insurance
protection for property damage to personal cars. No personal car should be used
on Omnipoint business that does not meet with individual State statutory limits
and requirements.
<PAGE>
MEALS AND ENTERTAINMENT
Personal Meal Allowance
Reasonable and actual meal expenses, including tax and gratuity, will be
reimbursed. The dollar limit of "reasonable" will vary from city to city, and
employees are asked to use good judgment when selecting appropriate dining
establishments.
When two or more employees are dining while on business travel, they may divide
the check and each be reimbursed for their costs, or the senior ranking employee
present may pay and be reimbursed for the total bill. All meal expenses of
$25.00 or more must be accompanied by a restaurant receipt.
Entertainment
Business practice includes the necessity from time to time to host business
contacts under conditions conducive to discussion. The IRS requires
documentation to support each such instance of business entertainment. Included
with the expense report should be a receipt which identifies the persons in
attendance, the date and location of the event, and the business purpose. All
such entertainment should be paid for by the most senior Omnipoint employee
present.
On-site business meetings, employees recognition events, interview meals or
seminars are acceptable on an occasional basis. These expenses must be
accompanied by a receipt from the appropriate manager.
MISCELLANEOUS EXPENSES
Phone Calls
Business calls and fax charges while traveling are reimbursable. Calling from
home or office is less expensive than using a company calling card, mobile or
cellular phone. Reimbursement will be made by submitting an expense report with
a copy of the phone bill, with the business calls identified.
Mobile or cellular phones, given their much higher cost of operation, should
only be used when necessary. Administrative or other matters which are not
urgent or critical should be handled when access to an office or other lower
cost phone is available.
Reimbursable Expenses
The following are reimbursable miscellaneous expenses:
- Laundry, dry cleaning and shoe shines for trips over one week in
duration
- Gratuities paid in accordance with local custom
- Telephone and fax charges, limited to business need and reasonable
personal calls
- Passport and/or visa expenses related to international travel
- Travel expenses related to professional meetings, conferences, seminars,
educational or professional conventions, when properly approved in
advance.
<PAGE>
Non-Reimbursable Expenses
The following are normally not reimbursable expenses:
- Annual fees for personal credit cards
- Dues or charges for airline clubs
- Any type of personal trip insurance
- Barber and manicurist expenses
- Laundry, dry cleaning and shoe shines on trips less than seven days long
- Traffic fines and court costs incurred while traveling on business
- Personal reading matter or other personal services
- Prescriptions
- Toiletries
- Installation charges and monthly fees for mobile phones
- Flowers and gifts for other employees
EXPENSE REIMBURSEMENT PROCESS
- -----------------------------
Normal Business Expenses
Normal business expenses are reimbursed by submission of a Travel Expense Report
(sample copy attached), and include such items as transportation, lodging,
meals, gratuities and normal business entertainment. Original receipts and
vouchers should be obtained where appropriate, and attached to the Report in
support of the included expenses. Receipts are required for all transportation,
lodging and entertainment expenses, and for any meals costing $25.00 or more.
Ordinarily, no business charges should be billed directly to Omnipoint by the
provider. Employees should pay all charges directly and be reimbursed through
submission of a Travel Expense Report.
Procedure
Travel Expense Reports, with appropriate receipts and documentation and approved
by the traveler's manager, should be submitted to Liz Slocum in the Colorado
Springs office no later than seven (7) day after completion of the trip.
Properly documented and approved reports will be reimbursed within two (2) weeks
of being submitted to Liz Slocum.
<PAGE>
[LOGO OF OMNIPOINT CORPORATION]
<TABLE>
<CAPTION>
TRAVEL EXPENSE REPORT
- ------------------------------------------------------------------------------------------------
Name Fred Walsh Date of Report 4/22/95
- ------------------------------------------------------------------------------------------------
Dept 987 Purpose of Trip Tech meetings in C.S.
- ------------------------------------------------------------------------------------------------
Date of Trip 4/11-13/95
- ------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------
SUN MON TUE WED THU FRI SAT Weekly Totals
- ------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Date 11 12 13
- ------------------------------------------------------------------------------------------------
Nature of Expenses
- ------------------------------------------------------------------------------------------------
Auto Rental 63.30
- ------------------------------------------------------------------------------------------------
Taxi, Bus, and Parking 12.00
- ------------------------------------------------------------------------------------------------
Personal Auto Mileage 5.10 5.10
- ------------------------------------------------------------------------------------------------
Airfare 480.00
- ------------------------------------------------------------------------------------------------
Meals for Self 18.00 31.15 4.80
- ------------------------------------------------------------------------------------------------
*Entertaining
- ------------------------------------------------------------------------------------------------
Lodging 74.10 74.10
- ------------------------------------------------------------------------------------------------
Telephone 6.75
- ------------------------------------------------------------------------------------------------
Gratuities 1.00
- ------------------------------------------------------------------------------------------------
*Conf/Seminar Fees
- ------------------------------------------------------------------------------------------------
*Misc 8.10
- ------------------------------------------------------------------------------------------------
Daily Totals 584.95 105.25 93.30 783.50
- ------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------
Explanation of Expenses Advance --
- ------------------------------------------------------------------------------------------------
Entertaining Difference 783.50
- ------------------------------------------------------------------------------------------------
(Please include name of person or company, place,purpose, and amount)
- ------------------------------------------------------------------------------------------------
Conf/Seminar Fees
- ------------------------------------------------------------------------------------------------
(Please include name, place and amount)
- ------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------
Misc. $8.10 Gasoline for rental car
- ------------------------------------------------------------------------------------------------
(Please include explicit details)
- ------------------------------------------------------------------------------------------------
- -----------------------------------------
- -----------------------------------------
- -----------------------------------------
Comments
- -----------------------------------------
- ------------------------------------------------------------------------------------------------
Signature: /s/ Fred Walsh Approved Signature:
------------------------ -----------------------------
- ------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
Exhibit 2
FINAL
EXECUTION COPY
--------------
ACQUISITION SUPPLY AND
LICENSE AGREEMENT
FOR
OMNIPOINT
PERSONAL COMMUNICATION SYSTEMS (PCS)
INFRASTRUCTURE PRODUCTS
BETWEEN:
ERICSSON INC.
and
OMNIPOINT CORPORATION
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
SECTION DESCRIPTION PAGE
- ------- ----------- ----
<S> <C> <C>
1. Definitions 1
2. Grant of Rights From OMNIPOINT to Ericsson 7
3. Supply Commitment 9
4. Ordering and Delivery 10
5. Delay 13
6. Technology License Fees 15
7. Purchase Price 17
8. Payment and Risk of Loss 18
9. BTS Performance Warranty 19
10. Software Performance Warranty 21
11. Limitation of Warranty; Limitation of Liability 22
12. Post Warranty Support Services 22
13. Technical Assistance 23
14. Product Documentation 24
15. Incoming Inspection 24
16. Ownership of Marks, Copyrights, Trade 24
Secrets and Labeling
17. Quality Standards 25
18. Reports and Audits 25
19. Termination 26
</TABLE>
-i-
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
20. Information Exchanges 27
21. Class A Changes 28
22. Patent, Copyright and Intellectual Property 28
Rights Indemnification
23. Legal and Regulatory Compliance 29
24. Hazardous Materials 30
25. Force Majeure 31
26. Arbitration 31
27. Marketing Efforts 31
28. General 32
Appendix A BTSs and Minimum Prices
Appendix B Software License Agreement
Appendix C EDI Procedures
Appendix D Technical Specifications
Appendix E Quality Standards
Appendix F Class A Changes
Appendix G Mutual Non-Disclosure Agreement
Appendix H BTS and Software Maintenance Services: Post-Warranty
Appendix I Initial Benchmark Prices
Appendix J [Reserved]
</TABLE>
-ii-
<PAGE>
*CONFIDENTIAL INFORMATION;
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
Final
Execution Copy
--------------
ACQUISITION SUPPLY AND LICENSE AGREEMENT
FOR
OMNIPOINT PCS INFRASTRUCTURE PRODUCTS
This Acquisition Supply and License Agreement (the "Agreement") made and entered
into as of the 11th day of April, 1996 by and between ERICSSON INC., a
Delaware corporation, having an office in Richardson, Texas, acting through its
Radio Systems Division (hereinafter called "Ericsson"), and OMNIPOINT
CORPORATION, a Delaware corporation, having its executive offices at 1365 Garden
of the Gods Road, Colorado Springs, Colorado 80907 (hereinafter called
"OMNIPOINT").
1. DEFINITIONS.
-----------
"Actual Price(s)" shall mean the actual Net Sale Price of BTSs sold by
Ericsson to Customers.
"Base Station Controller ('BSC')" shall mean Ericsson engineered equipment
providing channel management between the MSC and the BTS.
"Base Transceiver Station ('BTS')" shall mean OMNIPOINT supplied equipment,
including all necessary Software resident in the BTS, that incorporates
OMNIPOINT's IS-661 technology (regardless of whether manufactured by
OMNIPOINT, Nortel, or such other equipment manufacturer with whom OMNIPOINT
has a manufacturing agreement), providing the radio link with mobile
subscribers, excluding third-party OEM antennas, for use in any and all
applications in the 1850-1990 MHz frequency band only.
*
"Blanket Order" shall mean an Order that does not contain a Delivery Date.
"BTS Firmware" shall mean any set of programs owned by OMNIPOINT in machine
readable object code residing in hardware memories, including fixed code
instructions resident in memories or equivalent devices forming part of
hardware, for application in Ericsson Equipment, that provides basic logic,
operating instructions and user-related application instructions, as well
as associated software documentation, and is used in conjunction with
hardware.
<PAGE>
"Business Day" shall mean any day other than Saturday, Sunday or a
statutory holiday observed by either party.
"Change of Control" shall mean and shall be deemed to have occurred upon
the first of the following events:
(A) any person becomes the beneficial owner, directly or
indirectly, of securities of a company representing 50% or more of the
combined voting power of the company's then outstanding voting securities
and such person has the ability to elect a majority of the members of the
Company's Board of Directors, if such ownership is not in place on the
date of grant;
(B) any person becomes the beneficial owner, directly or
indirectly, of securities of the company sufficient to elect a majority
of the members of the Board of Directors of the company; or
(C) the sale of all or substantially all the assets of the
company, or a merger, consolidation, or similar transaction of the
company in which the company is not the surviving entity or the company's
stockholders immediately prior to such transaction hold less than 50% of
the voting securities of the surviving entity.
A Change in Control shall not include either of the following
events:
(A) a transaction, the sole purpose of which is to change the
state of the company's incorporation; or
(B) a transaction, the result of which is to sell all or
substantially all of the assets of the company to another entity (the
"surviving entity"); provided that the surviving entity is owned directly
or indirectly by the company's stockholders immediately following such
transaction in substantially the same proportions as their ownership of
the company's voting capital stock immediately preceding such
transaction.
"Customer" shall mean any person, firm or corporation which purchases,
leases, sublicenses or otherwise acquires a right to use any of the BTSs or
Ericsson Equipment directly or indirectly from Ericsson.
"Delivery Date" shall mean the date when a BTS shall be delivered to the
Delivery Location.
"Delivery Location" shall mean the Ericsson or Customer location to which
the BTS shall be delivered.
-2-
<PAGE>
"EDI" shall mean electronic data interchange of information related to
Orders and Releases.
"Effective Date" shall mean the date first written above.
"Ericsson Affiliate" shall mean all subsidiaries or affiliates wholly owned
or controlled, directly or indirectly, by Ericsson Inc., and also includes
Orbitel Mobile Communications Ltd.
"Ericsson Equipment" shall mean all Ericsson supplied hardware components,
software and firmware used or useful as part of or in connection with a
System, including without limitation, Ericsson's base station subsystems,
power supplies, OAM&P systems, transmission equipment, BSC, TRAU, MSC, HLR,
VLR, Operational Support Systems ("OSS") and other ancillary equipment, but
not including any equipment that can be shown to have been previously owned
by a Customer or purchased by a Customer for a primary purpose other than
to provide PCS type services.
"Ericsson IS-661 PCS Infrastructure Equipment" shall mean Ericsson
Equipment where such equipment is used in conjunction with one or more IS-
661 based BTSs or incorporates IS-661 technology.
"First Commercial Production Date" shall mean the date upon which both (i)
a revenue producing System is fully operational in the New York MTA and
(ii) the first BTS is used and incorporated in such revenue producing
System.
"Infrastructure Supply Agreement" shall mean that certain Acquisition
Agreement for Ericsson CMS 40 Personal Communication Systems (PCS)
Infrastructure Equipment by and between Ericsson Inc. and Omnipoint
Communications Inc. entered into contemporaneously with the signing of this
Agreement.
"MSC" shall mean Mobile Switching Center. MSCs may also include, without
limitation, MSC components.
"Marks" shall mean the trademarks, trade names and service marks now owned
by, licensed, or hereafter obtained by OMNIPOINT for the hardware and
Software.
-3-
<PAGE>
*CONFIDENTIAL INFORMATION;
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
"Maximum Shipping Period" shall mean:
-----------------------
(i) with respect to prior to
following the First Commercial Production Date, a period upon which the
parties mutually agree to be the maximum period of time after which BTSs
for which an Order has been received by OMNIPOINT must be shipped from the
Shipping Location in accordance with Section 4.3 and
(ii) with respect to any period
following the First Commercial Production Date, a period equal to
if the BTSs covered by an Order were scheduled for shipment at such time in
a Firm Forecast in accordance with Section 4.3 and (b)
the BTSs were not so forecasted.
By way of illustration, the Maximum Shipping Periods allowable under this
Agreement are as follows:
*
"Net Sale Price" shall mean the total invoiced amount from the sale, lease,
sublicense or other disposition of Ericsson Equipment (including spares
sold therewith) and Operating Software (including any upgrades or Version
Releases thereto) to a Customer, less (a) transportation and insurance
charges for the delivery of Ericsson Equipment to the
-4-
<PAGE>
Customer or other purchaser, (b) customs duties and similar governmental
charges, and (c) sales, excise or other taxes or governmental charges
levied on the sale, lease or other disposition of the Ericsson Equipment
and Operating Software.
"Network Element" shall mean the Ericsson Equipment, Ericsson IS-661 PCS
Infrastructure Equipment and Operating Software purchased from Ericsson by
a Customer required to perform switching, transmission or network node
functions for a System (e.g., Authentication Center ("AUC"), BSC, Equipment
Identity Register ("EIR"), Messaging System ("MXE"), Mobile Switching
Center/Visitor Location Register ("MSC/VLR"), Mobile Intelligent Network
("MIN"), Service Signaling Point ("SSP"), Home Location Register ("HLR"),
Service Control Point ("SCP") and MSC). For purposes of this Agreement, the
term Network Element includes BTSs.
"Nortel" shall mean Northern Telecom Inc., Northern Telecom Canada Limited
and Northern Telecom (CALA) Corporation.
"OCI" shall mean Omnipoint Communications Inc.
"OMNIPOINT Affiliate" shall mean all subsidiaries or affiliates wholly
owned or controlled, directly or indirectly, by OMNIPOINT.
"Operating Software" shall mean Ericsson supplied software provided in
connection with the Sale of Ericsson IS-661 Infrastructure Equipment or for
the purpose of expanding or upgrading an existing System and does not
include Programs.
"Orbitel" shall mean Orbitel Mobile Communications, Ltd.
"Order" shall mean either the document issued or the output of an
electronic "paperless" process, in either case the process initiated by
Ericsson by which a BTS is ordered under this Agreement.
"Product Documentation" shall mean the master copy of the documentation
required for the installation, maintenance and use of BTSs.
"Product Specifications" shall mean the specifications for BTSs, which will
be provided to Ericsson as soon as such specifications are available.
OMNIPOINT shall obtain Ericsson's consent to any such specifications and
any changes made to such specifications which materially affect performance
of the System, such consent not to be unreasonably withheld.
"Program" shall mean OMNIPOINT's computer programs constituting BTS
Firmware, OMNIPOINT provided Software for vocoder cards and, if so
provided, OMNIPOINT developed Software for RLICs, including Updates
thereto, and as implemented from time to time by OMNIPOINT.
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Purchase Price(s)" shall mean the amounts to be paid to OMNIPOINT by
Ericsson as established or to be negotiated pursuant to Section 1 hereof.
"Release" shall mean either the document issued or the output of an
electronic "paperless" process, in either case the process initiated by
Ericsson pursuant to a Blanket Order by which the Delivery Date for such
Blanket Order is established.
"Sale" or "Sold" shall mean the sale, lease, license, sublicense or other
transfer or use by Ericsson and shall be deemed to occur upon invoicing or
putting into use by Ericsson, whichever shall occur first.
"Serial Number" shall mean the bar-code readable number specified by
Ericsson to identify OMNIPOINT or Nortel, as applicable, as the
manufacturer to be affixed to each field replaceable BTS that indicated the
manufacturing location, year and week of manufacture and a set of numeric
characters identifying the unique serial number.
"Services" shall mean all services invoiced by Ericsson in connection with
the Sale of any System, Ericsson Equipment or Operating Software, including
without limitation installation, system integration, support, maintenance
and training.
"Shipping Date" shall mean the date when a BTS shall be delivered to the
carrier at the Shipping Location for shipment to the Delivery Location.
"Shipping Location(s)" shall mean the location(s) from which a BTS shall be
shipped by OMNIPOINT.
"Software" shall mean a disk, tape, PROM, EPROM, or other magnetic or
electronic storage devices on which has been placed a machine readable
expression of a Program and the machine readable expression of that Program
together with a copy of the User Manual explaining the use of that Program.
"Subsidiary" shall mean a corporation or company in which a party hereto
effectively owns or controls, and continues to own or control, directly or
indirectly, more than fifty percent (50%) of the voting stock of shares,
and with respect to Ericsson, Orbitel shall also be considered a Subsidiary
for purposes of this Agreement.
"System" shall mean an Initial Configuration and all Expansions thereto (as
the terms Initial Configuration and Expansion are defined in the
Infrastructure Supply Agreement) purchased by a Customer from Ericsson,
including all Ericsson Equipment, Ericsson IS-661 PCS Infrastructure
Equipment, Operating Software, installation and other services purchased
from Ericsson by a Customer relating to a System.
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"Term" shall mean the period beginning on the Effective Date and ending on the
fifth anniversary thereof, unless terminated earlier in accordance with the
terms and conditions hereof, or unless extended by the mutual written consent of
the parties hereto. The Term shall automatically be extended for such period of
time as Infrastructure Supply Agreement is extended beyond December 31, 2001.
"Territory" shall mean the world.
"Update" shall mean a release of a Program in which only bug fixes to that
Program are supplied.
"User Manual" shall mean OMNIPOINT's copyrighted user information about a
particular Program, and as revised from time to time by OMNIPOINT.
"Version Release" shall mean a release of a Program in which new
functionality has been added in addition to the normal complement of bug
fixes also being supplied.
"Warranty Period"
beginning on the date of manufacture of each BTS by OMNIPOINT or Nortel, as
applicable.
"Warranty Repair Period" shall mean *
commencing on the date that OMNIPOINT receives any of the following from
Ericsson: (a) a BTS which does not conform to the warranty set forth in
Section 8.1 if the repair or replacement is to be performed at a location
of OMNIPOINT, or (b) notice that a BTS does not conform to the warranty set
forth in Section 8.1 if the repair or replacement is to be performed at a
location of Ericsson or its Customers, or (c) notice that Software does not
conform to the warranty set forth in Section 9.1.
2. GRANT OF RIGHTS FROM OMNIPOINT TO ERICSSON
2.1 Subject to the terms and conditions set forth herein, OMNIPOINT hereby:
(a) agrees to sell and Ericsson shall have the right to purchase (or
otherwise procure, in the case of Software), for the purpose of use, resale
or sublicense in the Territory, completed and fully operational BTSs from
OMNIPOINT at the prices set forth in Section 6 and
(b) grants to Ericsson a non-exclusive right and license to use, sell and
lease BTSs as a constituent part of an integrated System or Ericsson
Equipment and to use, market and sublicense the Programs as a constituent
part of an integrated System or Ericsson Equipment only in object form, in
each case under the Marks respectively applicable, if any, directly or
indirectly, to Customers within the Territory.
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*CONFIDENTIAL INFORMATION;
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Ericsson hereby agrees to include, in accordance with 35 U.S.C. (S)287, all
appropriate and applicable patent numbers on any equipment sold
incorporating BTSs.
Ericsson shall have the right to market and distribute Ericsson Equipment
incorporating BTSs and to market and sublicense Software in object form
under its own trademarks, service mark and/or trade dress with appropriate
reference to OMNIPOINT in a form reasonably acceptable to OMNIPOINT.
2.2 For the Software in object form which Ericsson distributes directly to
Customers, Ericsson shall require every such Customer to execute an
agreement, containing provisions in which such Customers agree not to
decompile any Software program delivered to such Customers substantially in
the form of Appendix B hereto, to grant to Customers the right to use
Ericsson proprietary and third party software products.
*
2.4 OMNIPOINT grants to Ericsson the right to distribute copies of Updates,
either directly or indirectly, to Customers that have signed the license
agreement normally used by Ericsson in sublicensing rights to use the
Program(s). OMNIPOINT agrees to make available for purchase by Ericsson
all Version Releases at OMNIPOINT's then current prices therefor, and upon
such purchase grants to Ericsson the right to distribute copies of
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such Version Releases, either directly or indirectly, to Customers that
have signed the license agreement normally used by Ericsson in sublicensing
rights to use the Program(s).
2.5 In order to ensure adherence to the OMNIPOINT Common Air Interface ("CAI"),
in the event that OMNIPOINT makes available to Ericsson an Upgrade or
Version Release of the CAI that requires corresponding upgrades in the BTS
or BSC, Ericsson hereby undertakes to implement such upgrades and make them
available for purchase or license by its Customers. Nothing in the
Agreement shall permit Ericsson to make any modification or change to the
CAI. OMNIPOINT shall use commercially reasonable efforts to ensure that
all Upgrades or Version Releases of the CAI shall be backward compatible
with the most recent and prior two generations of BTSs purchased by
Ericsson pursuant to this Agreement.
2.6 OMNIPOINT warrants that, title conveyed under Section 8.5 to all BTSs
shipped to Ericsson or drop shipped directly to Customers shall pass to
Ericsson or a Customer, as the case may be, free and clear of any liens,
charges, encumbrances, restrictions or rights created in, by or against the
BTSs or against OMNIPOINT, except any patent rights of OMNIPOINT and/or one
or more of OMNIPOINT's licensors in the BTSs, if any. In no event shall
title to any Programs, pass to Ericsson or any Customer.
2.7 Nothing in the Agreement shall permit Ericsson to make any modification or
change to the Software. Ericsson shall have the right to download an
Update or Version Release, after payment of any applicable fee, directly to
BTS memories. Ericsson agrees not to translate, decompile, disassemble,
reverse engineer, create derivative works or take any steps intended to
produce a source language statement of the object code version of the
Programs, without the express written consent of OMNIPOINT.
3. SUPPLY COMMITMENT
3.1 During the Term, Ericsson may, but shall not be obligated to, issue Orders
or Releases to OMNIPOINT and OMNIPOINT shall fulfill such Orders or
Releases in accordance with the provisions of this Agreement.
3.2 OMNIPOINT shall notify Ericsson * to the
discontinuation of production or sale of a BTS; and *
to implementing any manufacturing, engineering or other changes which will
materially affect the form, fit or function of a BTS.
3.3 Ericsson may purchase out-of-warranty repair parts for BTSs, at OMNIPOINT's
(a) the effective date of each change to or discontinuance of any BTS
component which has been changed or discontinued, and (b) the date of
termination or expiration of this Agreement. Notwithstanding the
foregoing, OMNIPOINT may, in lieu of providing
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4. ORDERING AND DELIVERY
4.1 An Order or Release issued shall create contractual rights and obligations
solely between Ericsson and OMNIPOINT. Notwithstanding the foregoing,
Ericsson Affiliates shall have the ability to place orders under this
Agreement, with Ericsson guaranteeing the performance of their obligations.
4.2 (a) Ericsson shall, using reasonable efforts, provide OMNIPOINT on a
monthly basis *
a written *
of Orders
and Releases. The forecast shall include *
of such forecast and monthly forecasts to *
thereafter. No such forecast shall be binding on Ericsson except as
provided in 4.3(b) and 4.3(c) below. Ericsson shall report any significant
changes to the forecasts to OMNIPOINT without delay.
(b) The first thirteen (13) weeks of Ericsson's forecast for BTSs
shall become a binding commitment (the "Firm Forecast") as to the quantity
of BTSs specified therein. OMNIPOINT shall meet the Shipping Date for each
Order or Release provided:
(i) the total quantity of BTSs Ordered or Released for delivery
during any of the first four (4) weeks of a forecast does not exceed
the quantity forecasted for that week, such quantity becoming fixed in
the 4th week of the forecast; and
(ii) the actual quantity of BTSs Ordered or Released for the 5th
through 8th weeks does not exceed the quantity forecasted for such
week by more then 25%; such base quantity becoming established for any
given week when it first rolls into the 8th week of the forecast; and
(iii) the actual quantity of BTSs Ordered or Released for the 9th
through 17th weeks does not exceed the quantity forecasted for such
week by more then 50%; such base quantity becoming established for any
given week when it first rolls into the 17th week of the forecast; and
(iv) the actual quantity of BTSs Ordered or Released for the 18th
through 26th weeks does not exceed the quantity forecasted for such
week by more then 100%; such base quantity becoming established for
any given week when it first rolls into the 26th week of the forecast.
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In the event that Ericsson requires quantities of BTSs during the 1st
through 26th week of a forecast in excess of those provided for within this
Section, the parties shall negotiate in good faith the Shipping Date for
those excess quantities.
In the event that Ericsson requires an adjustment to the weekly volume
profile during any of the first four (4) weeks, but not the total quantity
during such period, the parties will negotiate in good faith such
adjustment.
Notwithstanding the foregoing, during the period *
the First Commercial Production Date and with respect to any Orders or
Releases which contemplate delivery of BTSs that contain Ericsson specified
design changes, the parties shall review any Orders or Releases issued by
Ericsson on a case by case basis to mutually agree upon a Shipping Date.
(c) The delivery of all quantities of BTSs committed by Ericsson to be
purchased within the Firm Forecast or any Order may at Ericsson's option be
delayed upon * prior notice *
from the original Firm Forecast or Order Delivery Date, at which time
Ericsson shall be obligated to purchase delayed quantities of BTSs. Any
commitment to delayed quantities of BTSs shall be considered met once it
has been placed in a Firm Forecast or Order, over and above any amounts
included in a previously delivered Firm Forecast or Order, and a Release
has been issued therefor. OMNIPOINT shall have no obligation to deliver a
delayed quantity of BTSs until it has been placed in a Firm Forecast or
Order and a Release has been issued therefor.
4.3 Except as otherwise set forth in this Section, OMNIPOINT shall accept, in
accordance with the terms of this Agreement any Order or Release issued
hereunder. This Agreement shall continue to apply to all Orders and
Releases issued during the Term until all obligations herein are performed.
4.4 If Ericsson uses EDI to issue an Order or a Release, such transaction shall
be carried out in accordance with the provisions set forth in Part I of
Appendix C.
4.5 Should the terms of any Order or Release conflict with the terms of this
Agreement, the terms of this Agreement shall govern unless the parties
expressly agree in writing to the contrary. Notwithstanding that an Order
or a Release does not refer to this Agreement, any Order issued by Ericsson
during the Term shall be deemed to have been issued pursuant to this
Agreement unless the parties expressly agree to the contrary.
4.6 An Order shall set forth a description of the following: (a) Delivery
Location, (b) the location where the invoice shall be rendered for payment,
(c) method of shipment, (d) quantity and (e) Delivery Date and/or Shipping
Date. All shipping documents shall reference the number of the Order
issued for the BTSs contained in the shipment.
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4.7 No later than *
Order or a Release, OMNIPOINT shall either confirm the Delivery Date or
propose an alternate Delivery Date. If OMNIPOINT fails to do so, it shall
be deemed to have agreed to the Delivery Date set forth by Ericsson.
Notwithstanding anything to the contrary contained in the first sentence of
this Section 4.7, OMNIPOINT shall use reasonable efforts to confirm the
Delivery Date contained in Ericsson's Order or Release, as applicable, as
soon as practicable after OMNIPOINT has received such Order or Release. If
OMNIPOINT proposes an alternate Delivery Date, then Ericsson *
Delivery Date notify OMNIPOINT that either
such alternate Delivery Date is acceptable or such Order or Release is
canceled. If Ericsson fails to give such notice, it shall be deemed to
have agreed to the alternate Delivery Date. Notwithstanding the above,
OMNIPOINT shall comply with any Delivery Date specified by Ericsson which
is to occur on or after the end of the Maximum Delivery Period.
4.8 OMNIPOINT shall perform all administrative actions required to qualify each
BTS for preferential treatment under the rules of any applicable trade
treaty among Canada, Mexico and the U.S.A., including, without limitation,
the North American Free Trade Agreement ("NAFTA"). If a BTS qualifies
under NAFTA, OMNIPOINT shall prepare and distribute a NAFTA Certificate of
Origin according to Section 4.10 or 4.11, whichever applies, and any other
documents required. OMNIPOINT shall respond to requests for information
regarding any NAFTA Certificate of Origin and assist Ericsson in resolving
any BTS eligibility issues. OMNIPOINT shall be solely responsible for all
penalties and costs resulting from a NAFTA Certificate of Origin
subsequently being determined to be invalid.
4.9 If a NAFTA Certificate of Origin is prepared for each shipment, OMNIPOINT
shall: (a) retain the original NAFTA Certificate of Origin in OMNIPOINT's
files with appropriate backup documentation, (b) attach a copy of the NAFTA
Certificate of Origin to the customs/shipping documents for the qualifying
BTS, and (c) mark the customs/shipping documents with legend: "Copy of
NAFTA Certificate of Origin Attached."
4.10 If a blanket NAFTA Certificate of Origin is prepared, OMNIPOINT shall: (a)
retain the original NAFTA Certificate of Origin in OMNIPOINT's files with
appropriate backup documentation, (b) mark the customs/shipping documents
for the qualifying BTS with the legend: "Copy of blanket NAFTA Certificate
of Origin on file at Ericsson's customs offices in Richardson, TX
(U.S.A.)", and (c) mail copies of the NAFTA Certificate of Origin to the
following offices:
Ericsson Inc.
Radio Systems
740 Campbell Road
Richardson, Texas 75801
Attention: Joe De La Luz
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4.11 OMNIPOINT shall deliver an Order or a Release complete unless Ericsson
otherwise agrees. If OMNIPOINT fails to ship a BTS *
of the Shipping Date, Ericsson may, in addition to any other right
available to it under the law, cancel or reschedule, without charge, the
unshipped portion of the Order or Release upon written notice to OMNIPOINT
prior to shipment of such unshipped portion of an Order or Release by
OMNIPOINT.
5. DELAY
5.1 Delay by OMNIPOINT. In the event of delay by OMNIPOINT subsequent to the
First Commercial Production Date, Ericsson shall have the following
rights and responsibilities.
5.1.1 Liquidated Damages. If, after the First Commercial Production
Date, due solely to the fault or negligence of OMNIPOINT: (i)
receipt or acceptance of any complete BTS by Ericsson does not
occur in accordance with Sections 4 and 15; (ii) Ericsson has a
contract or other agreement with a Customer pursuant to which
Ericsson is required to pay liquidated damages; and (iii) the
delay of receipt of BTSs by Ericsson from OMNIPOINT causes
Ericsson to pay liquidated damages pursuant to the terms and
conditions of the contract or agreement referenced in (ii), then
Ericsson shall be entitled to, and OMNIPOINT shall pay to
Ericsson, damages in accordance with this paragraph 5.1.
5.1.2 Computation of Damages. The parties agree that damages for delay
are difficult to calculate accurately and, therefore, agree to fix
as liquidated damages, and not as a penalty, an amount equal to
the lesser *
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*
5.1.3 The amount of liquidated damages due and payable hereunder shall
be calculated by multiplying the applicable liquidated damages
percentage, determined in accordance with the table above, by the
aggregate price of the amount of such delayed BTS or BTSs
("Delayed Equipment"), for each week, or fraction thereof, of
delay. Subject to the other provisions of this Agreement,
liquidated damages under this paragraph 5.1 shall be Ericsson's
exclusive remedy for any delay by OMNIPOINT in delivering BTSs.
Liquidated Damages shall accrue under this Agreement until such
time as the delay period has ended, and the Liquidated Damages
that may accrue hereunder, regardless of whether computed pursuant
to Section 5.1.2 (i) or Section 5.1.2 (ii), *
of the Delayed Equipment associated with
such delay. Ericsson agrees that OMNIPOINT may, at its option, pay
all liquidated damages owed pursuant to this Section 5.1 in the
following manner:
5.2 Excusable Delay. In the event of delay not the responsibility of
OMNIPOINT, the parties shall have the following rights and obligations.
5.2.1 Excusable Delays. OMNIPOINT will not be liable for nonperformance
or defective or late performance of any of its obligations
hereunder to the extent and for such periods of time as such
nonperformance, defective performance or late performance is due
to an act deemed to be force majeure under Section 25 hereof or
delays of suppliers or subcontractors if no equivalent source for
such supplies or services can reasonably be obtained for the same
causes.
5.2.2 Exceptions to Excusable Delays. OMNIPOINT shall not be entitled to
claim excusable delay under Section 5.3.1 above, for delays
resulting from strikes or other labor disturbance at OMNIPOINT's
manufacturing facilities.
5.2.2 Notice. In the event that OMNIPOINT claims the benefit of
excusable delay hereunder, OMNIPOINT shall promptly notify
Ericsson of the circumstances creating the delay and provide a
statement of the impact.
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5.2.3 Adjustment of Dates. Upon the determination that an excusable
delay has occurred or is likely to occur, the parties shall meet
to determine whether it is necessary to adjust the scheduled
delivery of BTSs required by the firm forecast delivered pursuant
to Section 4.2 or whether it is feasible to find alternative
methods to make up part or all of the potential delay. The parties
shall use their reasonable efforts to minimize the effect of an
excusable delay (e.g., alternative shipping techniques, different
suppliers, etc.). Unless explicitly agreed by Ericsson, any
adjustment in the firm forecast delivery dates shall not exceed a
day-for-day extension of time based upon the duration of the
excusable delay.
6. TECHNOLOGY INTEGRATION FEES
---------------------------
6.1 In consideration of the licenses granted pursuant to Section 2 hereunder,
Ericsson shall pay to OMNIPOINT technology integration fees according to
the following timing schedule:
6.1.1 Pursuant to the Infrastructure Supply Agreement, upon Ericsson
receiving orders for any combination of any type of Ericsson
Equipment and all services performed in connection therewith
placed by OMNIPOINT and/or an OMNIPOINT Affiliate for whom
Ericsson has provided vendor financing (under the terms of such
vendor financing agreement as executed by Ericsson and such
OMNIPOINT Affiliate (a "Financing Agreement"))
6.1.2 Pursuant to the Infrastructure Supply Agreement, upon Ericsson
receiving additional orders in excess of those described in
subsection (a) above for any combination of any type of Ericsson
Equipment and all services performed in connection therewith
placed by OMNIPOINT and/or an OMNIPOINT Affiliate for whom
Ericsson has provided vendor financing under the terms of a
Financing Agreement *
6.1.3 Pursuant to the Infrastructure Supply Agreement, upon Ericsson
receiving additional orders in excess of those described in
subsection (b) above for any combination of any type of Ericsson
Equipment and all services performed in connection therewith
placed by OMNIPOINT and/or an OMNIPOINT Affiliate for whom
Ericsson has provided vendor financing under the terms of a
Financing Agreement
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6.1.4 *
orders for Ericsson IS-661 PCS Infrastructure Equipment ordered by
any third party or combination of third parties -
6.1.5 Once OMNIPOINT, OMNIPOINT Affiliates or any combination thereof
have ordered *
of Ericsson Equipment and all services performed in connection
therewith pursuant to subsections 6.1.1, 6.1.2 and 6.1.3 above,
orders for Ericsson IS-661 PCS
Infrastructure Equipment and services performed in connection
therewith received by Ericsson from OMNIPOINT and/or an OMNIPOINT
Affiliate - *
Therefore, once OMNIPOINT and/or OMNIPOINT Affiliates have ordered
an aggregate of * for any type of Ericsson
Equipment and all services performed in connection therewith
pursuant to subsections 6.1.1, 6.1.2 and 6.1.3 above, all orders
for Ericsson IS-661 PCS Infrastructure Equipment and services
performed in connection therewith placed by OMNIPOINT and/or
OMNIPOINT Affiliates will be aggregated with all third party
orders for Ericsson IS-661 PCS Infrastructure Equipment, and for
in orders received by Ericsson, Ericsson shall pay OMNIPOINT
*
For example, if, after OMNIPOINT and/or OMNIPOINT *
6.2 At Ericsson's option, all technology integration fees owed under Section
6.1 may be paid to OMNIPOINT either
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* under the Infrastructure Supply Agreement, and as set forth in
Appendix A to the Infrastructure Supply Agreement.
6.3 Ericsson acknowledges and agrees that if, subsequent to the date hereof,
a Change in Control of either OMNIPOINT or Omnipoint Communications Inc.,
has occurred, OMNIPOINT shall be entitled to require that any and all
payments for technology integration fees due under this Section 6 shall
be payable *
6.4 Ericsson agrees that, if an inquiry is made of Ericsson or if OMNIPOINT
wishes to make a public disclosure, Ericsson will publicly acknowledge *
7. PURCHASE PRICE
--------------
7.1 Subject to an annual market/technology review pursuant to Section 7.3
below, the unit prices (the "Purchase Price") for BTSs shall be set forth
in the manner set forth in Appendix A attached hereto.
7.2 Either party may, not less than twelve (12) months after the date hereof or
the conclusion of any renegotiation provided for herein, request that the
prices established in the manner set forth in Appendix A be renegotiated
and agreed upon in good faith by the parties in connection with a
market/technology review. Such renegotiation shall commence within fifteen
(15) days and be completed within thirty (30) days after one party has
notified the other party of its request to renegotiate and shall be based
upon reasonable commercial terms. Any such renegotiated prices shall be
added to Appendix A by amendment. If the parties are unable to agree to
renegotiated prices within such thirty (30) day period, the prices
established in the manner set forth in Appendix A, as previously amended,
shall remain in effect.
7.3 OMNIPOINT will provide to Ericsson, *
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8. PAYMENT AND RISK OF LOSS
------------------------
8.1 All prices set forth in Section 7 are: (a) in U.S. dollars; (b) exclusive
of any applicable excise and sales taxes now existing or hereinafter
imposed by any applicable excise and sales taxes now existing or
hereinafter imposed by any applicable taxing authority; and (c) for all
deliveries within the U.S., inclusive of transportation charges and duty
applicable between the Shipping Location and the Delivery Location (but
specifically exclusive of any export packaging costs or any other costs
associated with shipments outside the U.S.). Any taxes, transportation
charges and duty for which Ericsson is liable shall be separately stated on
the invoice. OMNIPOINT agrees not to assess any applicable excise or sales
tax where Ericsson furnishes OMNIPOINT, in a form reasonably acceptable to
the taxing authority, prior to invoicing, a valid tax exemption
certificate, certificate of authority, direct pay permit or any equivalent
acceptable to the applicable taxing authority. Ericsson shall indemnify
and hold OMNIPOINT harmless from any and all subsequent assessments levied
by a proper taxing authority for such taxes for which Ericsson is liable,
including any interest, penalties or late charges due to Ericsson's failure
to perform hereunder.
8.2 The Purchase Price for BTSs *
which invoice shall not be sent by OMNIPOINT prior to the applicable
Shipping Date.
8.3 * Ericsson shall deliver to OMNIPOINT a
report showing the actual orders by OMNIPOINT and its affiliates received
during such calendar quarter for all Ericsson Equipment and Ericsson IS-661
PCS Equipment. The report required to be delivered under this Section 8.3
shall specify the date of receipt of each order, the dollar amount of each
order, the type of equipment ordered and the calculation of the technology
fees, computed on a rolling basis of orders
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received, of the technology fees owed to OMNIPOINT. Ericsson shall remit
payment of such quarter's technology fees to OMNIPOINT within ten (10) days
thereafter.
8.4 In the event any part of a payment is not made on or before the date due,
OMNIPOINT shall be entitled, for each month or portion thereof that such
amounts remain unpaid, to assess a late payment charge applied against the
unpaid portion of such amount due OMNIPOINT. The late payment charge shall
be applied daily after the due date until payment is received. The daily
late payment charge shall be calculated by multiplying the outstanding
balance for the day by that certain quotient, *
8.5 Title and risk of loss or damage to a product shall pass to Ericsson when a
BTS is delivered to Ericsson's designated carrier at the Delivery Location.
If Ericsson returns a BTS, risk of loss or damage for such BTS shall pass
to OMNIPOINT when Ericsson delivers a BTS to a carrier.
9. BTS PERFORMANCE WARRANTY
------------------------
9.1 OMNIPOINT warrants to Ericsson that, during the applicable Warranty Period,
all BTSs will, under normal use and service, be free of defects in
materials and workmanship and shall conform to the BTS specifications or,
to OMNIPOINT's then current authorized, written functional BTS
specifications. OMNIPOINT's sole obligation and Ericsson's sole remedy
under this warranty are limited to the repair or replacement, at
OMNIPOINT's option, of the defective BTS or BTS component. Ericsson shall
be responsible for actually removing and replacing any defective BTS.
OMNIPOINT's obligation and Ericsson's remedy under this Section 9.1 are
conditioned upon:
(a) OMNIPOINT's receipt of written notice of a defect from Ericsson within
the applicable Warranty Period; and
(b) the BTS not having been altered or repaired by others without
OMNIPOINT's written consent; and
(c) the alleged defect not being the result of mishandling, improper
servicing or improper operation including use in conjunction with hardware
electrically or mechanically incompatible.
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*CONFIDENTIAL INFORMATION;
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
This warranty shall survive inspection, acceptance and payment. The
performance by OMNIPOINT of its obligations hereunder shall not extend the
Warranty Period. Any BTS repaired or replaced during the Warranty Period
shall continue to be warranted for the balance of the Warranty Period. *
OMNIPOINT agrees that, with respect to all resales of fully operational
BTSs by Ericsson to Omnipoint Communications Inc. in connection with sales
of equipment under the Infrastructure Supply Agreement, the Warranty Period
for BTSs hereunder shall be the same as the warranty period extended by
Ericsson to Omnipoint Communications Inc. under the Infrastructure Supply
Agreement.
9.2 OMNIPOINT warrants to Ericsson that all BTSs shipped pursuant to this
Agreement will be manufactured and/or assembled from new and unused
components. In warranty replacement situations, OMNIPOINT shall be
permitted to use equivalent to new parts in the place of new parts and
shall track these warranties through the use of Serial Numbers and date
codes. Ericsson shall have the right to audit this process at any time
during normal working hours, subject to prior notification of
9.3 No BTS shall be returned to OMNIPOINT without OMNIPOINT's prior
authorization. OMNIPOINT shall have the option of repairing or replacing
the defective BTS at OMNIPOINT's factory or at Ericsson's or at a
Customer's facilities, upon the prior written consent of the party from
which the Customers of the defective BTSs received such BTS. In any event,
the costs and risk of loss associated with shipping defective BTS to
OMNIPOINT's factory shall be borne by Ericsson. Costs and risk of loss
associated with returning repaired or replacement BTS to Ericsson shall be
borne by OMNIPOINT. OMNIPOINT shall return the repaired BTS or a
replacement within the applicable Warranty Repair Period.
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<PAGE>
*CONFIDENTIAL INFORMATION;
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
9.4 OMNIPOINT shall send all change notices to the following Ericsson
personnel, which may be amended from time to time.
Ericsson Inc.
Radio Systems
740 East Campbell Road
Richardson, Texas 75801
Attention: Purchasing Manager
10. SOFTWARE PERFORMANCE WARRANTY
-----------------------------
10.1 OMNIPOINT warrants that, during the applicable Warranty Period, each
Program will under normal use and service be free of defects in materials
and workmanship attributable to OMNIPOINT and shall conform to the BTS
Specifications or, in the case of Software added to Appendix A after the
effective date of this Agreement, to OMNIPOINT's then current authorized,
written functional BTS Specifications relating to such Software. This
warranty is applicable only so long as Ericsson does not make modifications
or enhancements to, or translations of, the Program(s) as originally
delivered by OMNIPOINT. A master copy of each Update created and issued by
OMNIPOINT for each Program or Version Release licensed by Ericsson shall be
provided to Ericsson within fourteen (14) days of its completion by
OMNIPOINT. The performance by OMNIPOINT of its obligations hereunder shall
not extend the Warranty Period *
days, whichever is longer.
10.2 The exclusive remedy of Ericsson and the sole measure of recoverable damage
by Ericsson of the Software warranty is the repair or replacement by
OMNIPOINT, at OMNIPOINT's risk and expense, of any program containing
critical and/or serious problems and the correction of any substantive
incompleteness and/or inaccuracy in the User Manual(s), if any, as quickly
as practicable following the date on which OMNIPOINT receives written
notice regarding the existence of any such critical problem, and in the
case of a serious problem, with the next Update or Version Release to be
issued by OMNIPOINT. OMNIPOINT will establish procedures designed to
minimize its response times for Software warranty claims. Remedy is
provided only if (a) Ericsson notifies OMNIPOINT in writing of any claim of
defect in a Program or a substantive incompleteness and/or inaccuracy in
the User Manual for a Program within the Warranty Period, (b) the Program
and/or User Manual is returned to OMNIPOINT at Ericsson's risk and expense
after authorization for its return is obtained from OMNIPOINT (repaired or
replacement Programs and/or corrections for User Manuals will be shipped to
Ericsson at OMNIPOINT's risk and expense), and (c) upon examination by
OMNIPOINT, the Program(s) and/or User Manual(s) are found to contain
critical problems and/or the User
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<PAGE>
*CONFIDENTIAL INFORMATION;
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
Manuals are found to contain substantive inaccuracies or are incomplete or
are inaccurately reproduced.
11. LIMITATION OF WARRANTY; LIMITATION OF LIABILITY
-----------------------------------------------
THE WARRANTIES SET FORTH IN SECTION 9 AND SECTION 10, RESPECTIVELY, OF THIS
AGREEMENT CONSTITUTE THE ONLY LIABILITIES OF OMNIPOINT FOR BREACH OF
WARRANTY AND ARE IN LIEU OF ALL OTHER WARRANTIES, WRITTEN OR ORAL,
STATUTORY, EXPRESS OR IMPLIED, IN REGARD TO BTSs AND SOFTWARE, INCLUDING
THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE. NEITHER PARTY SHALL BE LIABLE FOR ANY LOSS OF DATA, LOSS OF
PROFITS, LOSS OF GOODWILL OR ANY OTHER INCIDENTAL, CONSEQUENTIAL OR SPECIAL
DAMAGES OF ANY NATURE WHATSOEVER FOR ANY ACTION ARISING UNDER THIS
AGREEMENT, EXCEPT IN THE CASE OF A BREACH BY A PARTY OF ITS OBLIGATIONS
UNDER SECTIONS 2.3, 14, 16, 20 or 23.
12. POST WARRANTY SUPPORT SERVICES
------------------------------
12.1 * prior
to the First Commercial Production Date, Ericsson and OMNIPOINT shall
negotiated in good faith and mutually agree upon the nature and level of
post-warranty support to be provided by OMNIPOINT hereunder. At such time
as Ericsson and OMNIPOINT reach mutual agreement upon the nature and level
of post-warranty support to be provided by OMNIPOINT, the obligations of
OMNIPOINT shall be specified in Appendix H to this Agreement.
12.2 * following the expiration of the Warranty Period,
OMNIPOINT shall offer to Ericsson and Customers, as appropriate, all out-of
warranty support services normally offered to OMNIPOINT's customers at
OMNIPOINT's then current prices under like conditions. After
discontinuation of OMNIPOINT support, OMNIPOINT shall make available to
Ericsson, on reasonable terms, documentation so that Ericsson can
independently service and support a BTS.
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<PAGE>
12.3 Each party shall designate one (1) senior representative for the purpose of
discussing and resolving OMNIPOINT BTS warranty and technical support
issues and disputes. The senior representatives of the parties shall meet
(face to face or through telephone conferences) on an as needed basis and
shall discuss, in general, the matters related to technical support and
issues and disputes brought to their attention by their respective
organizations. Agreements reached by the senior representatives related to
technical support shall be final. As of the Effective Date, the names of
the senior representatives of the parties are as follows:
for Ericsson:
Ericsson Inc.
Radio Systems
740 East Campbell Road
Richardson, Texas 75801
Attention: Purchasing Manager
and
for OMNIPOINT:
Omnipoint Corporation
1365 Garden of the Gods Road
Colorado Springs, Colorado 80907
Attention: Alan Longshore
Fax: (719) 548-1393
Telephone: (719) 548-1200
13. TECHNICAL ASSISTANCE
--------------------
13.1 During the term OMNIPOINT shall make available to Ericsson to the extent
reasonably possible, upon the latter's written request, technical
assistance to facilitate the integration, sale, lease and/or distribution
of BTSs.
13.2 Such technical assistance as may be available shall be scheduled by
OMNIPOINT to serve the needs of Ericsson but not so as to unduly
inconvenience OMNIPOINT.
13.3 Technical assistance shall include both technical services and consulting
services of OMNIPOINT and visits of Ericsson's engineering, technical and
testing personnel to OMNIPOINT's facilities.
13.4 OMNIPOINT shall be paid in return for such services and visits based on
OMNIPOINT's then current list prices therefor, and shall be reimbursed for
all reasonable travel, living
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<PAGE>
*CONFIDENTIAL INFORMATION;
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
and out-of-pocket expenses of the personnel rendering such services.
Invoices shall be rendered by OMNIPOINT to Ericsson for such technical
assistance and reimbursement of expenses, and shall be paid by Ericsson *
after receipt of the invoice therefor.
Notwithstanding the foregoing, OMNIPOINT shall *
14. PRODUCT DOCUMENTATION
---------------------
14.1 On or before the date on which OMNIPOINT is scheduled to deliver the BTSs
to Ericsson for BTS verification tests, OMNIPOINT shall deliver to Ericsson
a master copy of the Product Documentation in commercially usable size and
format and shall thereafter in a timely manner, provide Ericsson with all
necessary amendments and updates thereto. Such Product Documentation shall
be considered Confidential Information hereunder unless such Product
Documentation is marked by OMNIPOINT as "Suitable for Distribution."
14.2 Ericsson shall have the right to make copies of any Product Documentation
marked "Suitable for Distribution" and distribute such copies to its
Customers, and, subject to the prior written approval of OMNIPOINT, shall
have the right to reformat and package such Product Documentation, make
copies thereof, modify as necessary and distribute such copies to its
Customers.
14.3 OMNIPOINT shall deliver to Ericsson interim draft copies of the Product
Documentation as soon as reasonably available.
15. INCOMING INSPECTION
-------------------
All BTSs shall be subject to inspection at the Delivery Location and such
inspection shall be deemed to occur *
If a BTS does not conform to the requirements of an Order the entire
quantity delivered may be returned to OMNIPOINT at Ericsson's expense,
provided that any replacement Order shall be shipped at OMNIPOINT'S
expense. Payment shall neither be deemed to constitute acceptance nor be a
waiver of Ericsson's right to cancel any Order or Release. Nothing herein
shall be deemed to lessen Ericsson's rights under this Agreement.
16. OWNERSHIP OF MARKS, COPYRIGHTS, TRADE SECRETS AND LABELING
----------------------------------------------------------
16.1 Ericsson hereby acknowledges and agrees that nothing herein grants to it
any right, title or interest in the Marks or in OMNIPOINT's copyrights for
the Software and that upon
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<PAGE>
termination of this Agreement by expiration or for any other reason,
Ericsson shall no longer use the Marks in advertising or in any other
manner. Ericsson shall not challenge the validity of OMNIPOINT's ownership
of or right to use any of the Marks or OMNIPOINT copyrights, nor otherwise
impair the interest of OMNIPOINT in the Marks or such copyrights. Ericsson
shall not use any mark which is confusingly similar to, or a colorable
imitation of, any Mark. Except as otherwise set forth herein, no license
or other grant is expressed or implied to Ericsson (i) to change or
otherwise modify the Program(s) or the User Manual(s), or (ii) to know,
use, reproduce, copy, market, sell, disclose or distribute the source code
form of any Program of OMNIPOINT received under this Agreement, if any.
16.2 Ericsson shall remain obligated, both during the Term and thereafter, to
hold in strict confidence its knowledge of the BTSs as a trade secret for
the benefit of OMNIPOINT, and Ericsson shall treat such information in the
same manner in which it treats its own trade secrets, including instituting
and maintaining all appropriate security measures in order to protect the
confidential, proprietary trade secrets of OMNIPOINT with respect to the
BTSs.
16.3 OMNIPOINT agrees to affix, upon each BTS supplied to Ericsson, the
appropriate Ericsson insignia as specified in written instructions from
Ericsson, and shall be marketed by Ericsson directly or indirectly to
Customers.
17. QUALITY STANDARDS
-----------------
Ericsson acknowledges and agrees that OMNIPOINT is not presently in
compliance with the ISO 9001 manufacturing quality standards. OMNIPOINT
agrees that it shall employ commercially reasonable efforts to achieve and
maintain manufacturing quality standards equivalent to ISO 9001.
18. REPORTS AND AUDITS
------------------
18.1 OMNIPOINT shall submit monthly to Ericsson a report showing for each
Ericsson location the Orders and Releases issued and BTSs delivered during
the immediately preceding month, the status of the undelivered portion of
any past due Order or Release and any other similar information as may
reasonably be requested by Ericsson from time to time.
18.2 Ericsson shall submit the reports required pursuant to Sections 4.2, 4.3,
8.3 and 8.4.
18.3 Ericsson shall keep full, true and accurate books of account containing all
particulars that may be necessary for the purpose of showing the amounts
payable to OMNIPOINT hereunder. Such books and the supporting data shall
be open and made available, at all
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<PAGE>
*CONFIDENTIAL INFORMATION;
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
reasonable times and upon reasonable notice during the Term of this
Agreement and for *
after its termination or expiration, to the inspection of a firm of
certified public accountants selected by OMNIPOINT and reasonably
acceptable to Ericsson, the cost of which is to be paid by OMNIPOINT, for
the purpose of verifying the amounts paid to OMNIPOINT hereunder; provided,
however, that such examination shall not take place more often *
In the event any such audit reveals a deficiency in
the amounts paid to OMNIPOINT by Ericsson for the period covered by the
audit, Ericsson shall pay to OMNIPOINT *
If Ericsson notifies OMNIPOINT of its disagreement with
the results of the audit * then disputed amounts shall
In the event any such audit reveals a
deficiency * of the amounts paid to OMNIPOINT by Ericsson for the
period covered by the audit, Ericsson shall pay,
interest, the fees and expenses of such accountants
19. TERMINATION
-----------
19.1 In the event of any material breach of this Agreement by either party,
which breach shall continue for * or more days after written
notice of such breach (including a reasonably detailed statement of the
nature of such breach) shall have been given to the breaching party by the
aggrieved party, the aggrieved party shall be entitled to avail itself
cumulatively of any and all remedies available at law or in equity and:
(a) if the aggrieved party is Ericsson, Ericsson may (i) *
or (ii) cancel any * outstanding by Ericsson
for so long as the breach continues uncorrected; and *
(b) if the aggrieved party is OMNIPOINT, OMNIPOINT may (i) *
or (ii) suspend performance under any *
for so long as the breach continues uncorrected.
19.2 Ericsson may terminate this Agreement if OMNIPOINT is or becomes a party to
any bankruptcy or receivership proceeding which is uncontested by OMNIPOINT
for fifteen (15) days, or, if contested, is not remedied within sixty (60)
days, or if OMNIPOINT seeks to make a compromise, arrangement or assignment
for the benefit of its creditors or if a receiver or receiver-manager is
appointed over any of OMNIPOINT's assets.
19.3 OMNIPOINT may terminate this Agreement if Ericsson is or becomes a party to
any bankruptcy or receivership proceeding which is uncontested by Ericsson
for fifteen (15)
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<PAGE>
days, or, if contested, is not remedied within sixty (60) days, or if
Ericsson seeks to make a compromise, arrangement or assignment for the
benefit of its creditors or if a receiver or receiver-manager is appointed
over any of Ericsson's assets.
19.4 Upon any termination of this Agreement, each party shall return to the
other party all property owned by that other party, including all copies of
all items containing "Confidential Information" of the other party, except
as specifically elsewhere provided herein. Both parties shall fulfill any
obligations pursuant to Sections 5 and 7 then outstanding.
19.5 In the event either party wishes to terminate this Agreement either in its
entirety for reasons not expressly provided for in this Agreement, it shall
so advise the other party in writing and, forthwith thereafter, the parties
shall negotiate in good faith (without prejudice to other rights they may
have under this Agreement) a mutually satisfactory arrangement for such
termination. In the event the parties are unable to reach a mutually
satisfactory arrangement within sixty (60) days of the commencement of such
negotiations, then the party having given the notice contemplated above in
this Section 18.5 shall have the right to terminate this Agreement upon
further notice to the other party given within the immediately succeeding
thirty (30) days, such termination to become effective two hundred seventy
(270) days from the date of such further notice.
19.6 In the event of a sale of OMNIPOINT, all contractual obligations as related
to this Agreement shall be transferred to the new ownership.
20. INFORMATION EXCHANGES
---------------------
Ericsson and OMNIPOINT shall hold all technical and commercial information,
documentation and know-how of every kind and description, whether oral or
written, that is received from each other, whether received before or after
execution of this Agreement, in strictest confidence as being confidential
and the exclusive property of the disclosing party or as representing trade
secrets of the disclosing party ("Confidential Information"). The parties
executed a mutual non-disclosure Agreement on June 16, 1993 (the
"Confidentiality Agreement"), a copy of which is attached hereto as
Appendix G, and the terms and conditions of the Confidentiality Agreement
are incorporated herein by reference as though repeated and restated in
their entirety herein. Accordingly, the parties agree that the treatment
of all Confidential Information disclosed to one another pursuant to this
Agreement shall be governed and controlled by the terms and conditions of
the Confidentiality Agreement and that the terms thereof shall remain in
full force and effect for the term of this Agreement.
During the Term of this Agreement, Ericsson shall take reasonable,
commercial steps to ensure that Customers agree in the case of the Programs
not to translate, decompile,
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<PAGE>
*CONFIDENTIAL INFORMATION;
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
disassemble, reverse engineer, create derivative works or take any steps
intended to produce a source language statement of the object code version
of the Programs.
The parties agree that any breach of this Section 19 will constitute
irreparable harm, and that either party shall be entitled to specific
performance or injunctive relief to enforce this Section 19 in addition to
whatever remedies such party may otherwise be entitled to at law or in
equity.
21. CLASS A CHANGES *
---------------
or sale of any BTS by OMNIPOINT hereunder, OMNIPOINT shall
provide Class "A" BTS changes to Ericsson consistent with the procedures
for such changes as set forth in Appendix F, "Class A Changes."
22. PATENT. COPYRIGHT AND INTELLECTUAL PROPERTY RIGHTS INDEMNIFICATION
------------------------------------------------------------------
22.1 OMNIPOINT agrees to indemnify and hold Ericsson harmless as set forth below
from damages and costs (including reasonable attorney's fees) awarded from
claims, suits or proceedings brought against Ericsson or its Customers
based on a claim that the sale or use of the BTSs or of any portion
thereof, excluding Ericsson Equipment, infringes any registered copyright,
trademark, patent or other intellectual property, or breaches any trade
secret, of any third party, which intellectual property right is in force
within the United States at the time in which the BTSs are manufactured,
sold or used, provided that OMNIPOINT is informed promptly in writing of
such claim, suit or proceeding and furnished a copy of each communication,
notice or other action relating to the alleged infringement and is given
all authority, information and assistance (at OMNIPOINT's expense)
necessary to defend or settle such claim, suit or proceeding. In the case
of such a claim by a third party, OMNIPOINT shall, at its option:
(a) defend and settle at its expense any claim, suit or proceeding brought
against Ericsson, which claim, suit or proceeding is based on a claim as
previously stated, and OMNIPOINT shall pay all damages and costs that
finally are awarded against Ericsson in such a proceeding or suit; or
(b) replace at its own cost such infringing BTS or any portion thereof
with a BTS or portion thereof which does not infringe any intellectual
property rights, or change the BTSs so as to avoid intellectual property
infringement, provided that form, fit and function of the BTSs are not
materially affected by such change or replacement; or
(c) purchase on behalf of Ericsson the right to continued sale or use
without additional cost or fee for Ericsson.
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<PAGE>
In the event that OMNIPOINT is unable to perform under clauses (a), (b) and
(c) above, OMNIPOINT shall accept the return of the infringing portion of
the BTSs and repay Ericsson an amount equal to the depreciated value of
such BTS after deducting the time for Ericsson's and its Customers'
uninterrupted use and operation of the BTS prior to the time of any final
adjudication of infringement.
Ericsson acknowledges and agrees that the indemnification provided by
OMNIPOINT under this Section 22.1 does not apply to any claim made against
Ericsson arising from modifications Ericsson makes to a third party's
equipment (e.g., a BSC) necessary for Ericsson to use a BTS.
22.2 The preceding paragraph shall not apply to any claim based upon (i)
compliance with designs, plans or specifications of Ericsson to the extent
compliance with such designs, plans or specifications cause any
infringement as specified in Section 22.1, (ii) use of the BTS in
combination with devices or products not purchased and/or licensed
hereunder where the BTS would not itself be infringing, (iii) use of the
BTS in an application or environment for which such BTS was not designed or
contemplated, (iv) modifications of a BTS by Ericsson or a Customer, or (v)
any claims of infringement of a patent, copyright or trade secret in which
Ericsson or any affiliate or Customer of Ericsson has a controlling
interest or license which would negate the alleged infringement. Where and
to the extent the use of any design, specification or combination by
Ericsson results in infringement, Ericsson shall indemnify and hold
OMNIPOINT harmless against any infringement claims arising from the use of
such design, specification or combination.
23. LEGAL AND REGULATORY COMPLIANCE
-------------------------------
23.1 At no additional charge to Ericsson, OMNIPOINT shall comply in all material
respects with and obtain all licenses and permits required by the relevant
United States governmental authorities in order to perform its obligations
hereunder, and shall comply in all material respects with all applicable
United States governmental regulations. A BTS shall comply in all material
respects with all applicable United States federal laws and governmental
orders and regulations in effect at the time of shipment of a BTS. At
OMNIPOINT's expense, Ericsson shall use reasonable efforts to assist
OMNIPOINT in obtaining any such approvals, permits or licenses required.
23.2 At no additional charge to OMNIPOINT, Ericsson shall comply in all material
respects with and obtain all licenses and permits required by the relevant
governmental authorities in order to perform its obligations hereunder, and
shall comply in all material respects with all applicable governmental
regulations. At Ericsson's expense, OMNIPOINT shall use reasonable efforts
to assist Ericsson in obtaining any such approvals, permits or licenses
required.
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<PAGE>
23.3 Ericsson acknowledges that exportation of the information, industrial and
intellectual property rights and documentation relating to the BTSs may be
subject to compliance with the Export Administration Act of 1979 of the
United States of America, as amended, and the rules and regulations
promulgated from time to time thereunder (collectively, the "Export Act"),
which restrict exports and reexports of software media, technical data and
direct products of technical data. If a license is required under the
Export Act before OMNIPOINT can transfer the information, industrial or
intellectual property rights or documentation relating to the BTSs to
Ericsson, Ericsson understands and acknowledges that no such transfer can
occur until such license is obtained. In the event that a license is so
required, OMNIPOINT (with the reasonable assistance of Ericsson) shall use
its reasonable best efforts to obtain such license.
23.4 Ericsson agrees not to knowingly export or reexport the information,
industrial or intellectual property rights or documentation relating to the
BTSs or any part thereof or any direct product thereof, directly or
indirectly, without first obtaining permission to do so from the United
States Office of Export Administration or other appropriate government
agencies, into any of those countries listed from time to time at the time
of any shipment of BTSs in supplements to Part 370 to Title 15 of the Code
of Federal Regulations of the United States as "prohibited or restricted"
countries or any other country to which exports or reexports may be
restricted (collectively, "Prohibited Countries"). Ericsson agrees not to
distribute or supply the BTSs to any person if Ericsson has reason to
believe that such person intends to export, reexport or otherwise take the
same to, or to use the same in, any of the Prohibited Countries. Ericsson
agrees to indemnify and hold OMNIPOINT harmless from or in connection with
any violation of this Section by Ericsson. Without limitation of the
foregoing, each party agrees to commit no act which, directly or
indirectly, would cause the other party to violate any applicable law,
regulation, treaty or agreement relating to the export or reexport of the
BTSs.
24. HAZARDOUS MATERIAL
------------------
OMNIPOINT shall supply to Ericsson a list of all materials incorporated
into a BTS which are classified as toxic or hazardous under applicable laws
and regulations, information on the safe handling of each BTS and any
pertinent information concerning any adverse effects on people or the
environment that may result from use of, exposure to, or disposal of such
BTS. OMNIPOINT warrants to Ericsson that each BTS provided by OMNIPOINT is
safe for its normal use. OMNIPOINT shall indemnify Ericsson for any
expenses that Ericsson may incur by reason of recall or prohibition of use
of a BTS. Ericsson shall cooperate with OMNIPOINT to facilitate and
minimize the expense of any recall or prohibition against such use.
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*CONFIDENTIAL INFORMATION;
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
25. FORCE MAJEURE
-------------
If the performance of this Agreement or any obligation hereunder except for
the obligations set forth in Sections 6 and 8 is prevented, restricted or
interfered with by reason of any circumstance beyond the reasonable control
of the party affected including, but not limited to, fires, breakdown of
plant, labor disputes, embargoes, government ordinances or requirements,
civil or military authorities, acts of god or of the public enemy, acts or
omissions of carriers, or inability to obtain necessary materials or
services from suppliers, then the party affected shall be excused from such
performance on a day-for-day basis to the extent of such interference (and
the other party shall likewise be excused from performance on a day-for-day
basis to the extent such party's obligations relate to the performance so
interfered with); provided that the party so affected shall use reasonable
efforts to remove such causes of non-performance.
26. ARBITRATION
-----------
In the event any disagreement should arise between the parties, whether as
to the interpretation or operation of this Agreement, or any rights or
obligations hereunder, such disagreement shall be finally settled in
Washington, D.C. under the rules of the American Arbitration Association.
This Section shall not limit the right of either party to seek injunctive
relief from a court of law.
27. MARKETING EFFORTS. Ericsson and OMNIPOINT shall cooperate with each other
on the marketing and development of IS-661 based equipment and the parties
shall negotiate in good faith the formulation and execution of agreements
governing the collaborative marketing, deployment and industrialization of
IS-661 based equipment and the joint marketing of such IS-661 based
equipment.
Ericsson and OMNIPOINT will cooperate on technical trials of IS-661 based
equipment and technology * Ericsson and
OMNIPOINT will co-market IS-661 based PCS systems *
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<PAGE>
28. GENERAL
-------
28.1 Any notices to be given under this Agreement, except for notices under
Sections 3.2 and 4.10, shall be sent by facsimile, reliable overnight
courier or hand delivery to the other party at the following addresses to
the attention of:
If to OMNIPOINT:
Omnipoint Corporation
1365 Garden of the Gods Road
Colorado Springs, Colorado 80907
Fax: (719) 548-1393
Telephone: (719) 548-1200
with a copy to:
Edwin M. Martin, Jr.
Piper & Marbury L.L.P.
1200 Nineteenth Street, N.W.
Washington, DC 20036
Fax: (202) 223-2085
Telephone: (202) 861-3900
If to Ericsson:
Ericsson Inc.
Radio Systems
740 East Campbell Road
Richardson, Texas 75801
Attention: General Counsel
28.2 Notices shall be deemed to have been received one Business Day after
sending if given by facsimile or overnight courier or upon delivery if
given by hand.
28.3 The failure of a party to enforce any provision of this Agreement shall not
constitute a waiver of such provision or the right of such party to enforce
such and every other provision.
28.4 The validity, interpretation and performance of this Agreement, the rights
and obligations arising hereunder and any purchase made hereunder shall be
governed by the laws of the State of New York without reference to the
UNCITRAL Conventions on Contracts for the International Sale of Goods.
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<PAGE>
28.5 Neither party shall assign this Agreement or any rights hereunder or
subcontract any of its obligations under this Agreement without the prior
written consent of the other party, such consent not to be unreasonably
withheld. Notwithstanding anything to the contrary contained in the
previous sentence, Ericsson acknowledges and agrees that OMNIPOINT
presently has, or in the future may have, contractual agreements with
certain vendors, including Nortel, for the production and manufacture of
BTSs and BTS components, and Ericsson hereby consents to OMNIPOINT
contracting with such vendors for the production and manufacture of BTSs
and BTS components. Notwithstanding the restrictions on assignment
contained in the first sentence of this subsection 27.5, either party may
assign this Agreement in the event of a bona fide sale of the party to a
third party, and both parties consent in advance to an assignment of this
Agreement in the event of such bona fide sale of the other party to a third
party.
28.6 Section headings are inserted for convenience only and shall not be used to
interpret this Agreement.
28.7 All obligations and liabilities which, by their nature, are intended to
survive the expiration or termination of this Agreement shall remain in
effect beyond any expiration or termination of this Agreement.
28.8 If any provision of this Agreement is or becomes illegal or unenforceable
in whole or in part in a country, the remaining provisions shall
nevertheless be valid and binding with respect to that country so long as
they continue to express the original intent of the parties. If not, this
Agreement shall not apply in that country, but the parties shall negotiate
in good faith to extend the benefit of this Agreement to that country in
some other manner.
28.9 This Agreement and the Appendices to it, together with the [Insert name of
all agreements] entered into on the date hereof, constitute the entire
agreement between the parties on the subject matter hereof and supersede
all prior agreements and communications. This Agreement may not be modified
except by means of an amendment which expressly references this Agreement
and is duly executed by each of the parties.
-33-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have signed this Agreement by their duly
authorized representatives.
ERICSSON INC. OMNIPOINT CORPORATION
By: /s/ Bo Hedfors By: /s/ George F. Schmitt
------------------------- ------------------------------
Print Name: Bo Hedfors Print Name: George F. Schmitt
----------------- ----------------------
Title: President Title: President
---------------------- ---------------------------
Date: April 16, 1996 Date: April 16, 1996
----------------------- ----------------------------
-34-
<PAGE>
*CONFIDENTIAL INFORMATION;
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
APPENDIX A
----------
BASE TRANSCEIVER STATION (BTS) PRICES
A. Ericsson shall pay to OMNIPOINT the greater of *
Upon shipment OMNIPOINT shall invoice
Ericsson the following: *
B. OMNIPOINT and Ericsson shall establish and mutually agree upon *
to the First Commercial Production Date, and such prices shall be set
forth Appendix I hereto. Subsequent shall be
negotiated as provided in Section 7.2 and shall be attached hereto as Appendix
J.
C. *
D. If the Corrected Amount is greater than the Amount Paid, Ericsson shall pay
the difference to OMNIPOINT; if the Amount Paid is greater than the Corrected
Amount, Ericsson shall take the credit against the next payment to OMNIPOINT of
an invoiced amount.
E. At the written request of either Party, the negotiations contemplated in
paragraph B of this Appendix A shall commence within *
Any such renegotiated Benchmark Price shall be added hereto by
amendment. Until the Parties agree to renegotiated Benchmark Prices, the
Benchmark Prices, as previously amended, shall remain in effect.
<PAGE>
*CONFIDENTIAL INFORMATION;
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
In determining the Benchmark Prices to be renegotiated, the parties shall
consider the following:
(a) the prices are intended to provide OMNIPOINT a *
A-2
<PAGE>
APPENDIX B
----------
SOFTWARE LICENSE AGREEMENT PROVISION
SOFTWARE; CONFIDENTIAL INFORMATION
SOFTWARE LICENSE. Subject to the limitations of this Agreement and
payment in full of the applicable license fee(s), Seller grants Buyer a
non-exclusive, nontransferable license to use Software (including
Software Updates, Software Enhancements and Software Features) delivered
to Buyer under this Agreement solely in conjunction with the operation of
the System. Any other intended use of the Software not specifically
authorized herein shall be subject to a separate licensing arrangement
between Seller and Buyer.
OWNERSHIP OF SOFTWARE. Buyer acknowledges that the Software is the
property and confidential proprietary information of Seller, Seller's
suppliers, or third party licensors, title and ownership rights to
Software, including any reproductions, modifications or derivatives
thereof, shall remain at all times with Seller, Seller's suppliers, or
third party licensors, as applicable. Buyer may not sell, assign,
transfer, sublicense, or otherwise make available the Software to any
third party (except as provided herein) without the consent of the owner
of the Software, nor shall Buyer adapt or create any derivative work
using Software or decompile or reverse engineer the Software, without the
prior written consent of Seller. In no event may Buyer sell, assign,
transfer, license, or otherwise make available any of the Software to any
person not purchasing the System, without the consent of the owner of the
Software. Buyer may not copy or duplicate the Software, except that Buyer
may make one (1) copy of the Software solely for back-up or archival
purposes, provided that such copy bears such copyright or other
proprietary notices as are contained on the original copy (or as Seller
may reasonably require from time to time). Buyer shall not alter or
remove any copyright or other proprietary notices on or in copies of the
Software. Except as expressly permitted in this Agreement, Buyer agrees
not to disclose or cause to be disclosed the Software to any person other
than employees or contractors of Buyer duly authorized to use the
Software on Buyer's behalf and who have been informed by Buyer of the use
and disclosure restrictions set forth herein.
HARDWARE LIMITATION. The Software supplied under this Agreement shall
not, without the prior written consent of the Seller, or the owner of the
Software if different from the Seller, be implemented on or used to
directly control hardware other than that purchased under this Agreement.
SOFTWARE TRANSFER. Buyer may transfer this Software license to any
subsequent purchasers of the System from Buyer without further approval
of Seller provided the
<PAGE>
subsequent purchasers are not direct competitors of Seller and further
provided the subsequent purchasers agree in a writing delivered to Seller
to assume Buyer's obligations set forth in this Agreement relating to the
Software.
SOFTWARE ENHANCEMENTS AND FEATURES. Software Enhancements or Software
Features may be ordered by Buyer at the prices set forth in Attachment
__, and if not therein set forth, at Seller's then current prices
therefor. Software Updates shall be provided to Buyer without charge
during the Warranty period. Thereafter, Software Updates shall be made
available to Buyer pursuant to agreements for System Support Services.
CONFIDENTIALITY. The parties agree, except as may be required to comply
with any applicable law, regulation or order of any governmental or other
authority, to:
(a) maintain, or cause to be maintained, the confidentiality of
Confidential Matters of the other party and not disclose, or
permit to be disclosed, any such Confidential Matters, unless
authorized in writing by such other party;
(b) not use, or permit to be used, any such Confidential Matters,
except in accordance with the scope of this Agreement;
(c) restrict, or cause to be restricted, disclosure of such
Confidential Matters to those officers, employees and agents who
need to know such Confidential Matters in the performance of work
relating to the subject matter of this Agreement (it being
understood that such officers, employees and agents shall be
informed of the confidential nature of such Confidential Matters
and shall be directed to treat such Confidential Matters
confidentially and not use such Confidential Matters other than
for the purpose described above); and
(d) take precautions necessary or appropriate to guard the
confidentiality of such Confidential Matters.
DISCLOSURE UNDER ORDER. In the event that any party hereto becomes
obligated to disclose Confidential Matters pursuant to an order of any
governmental or other authority, such party shall seek a protective order
or other appropriate remedy that will permit such party to avoid such
disclosure. In the event that such protective order or other remedy is
not obtained, such party will disclose only that portion of the
Confidential Matters as it is obligated to disclose pursuant to such
order, and will use all reasonable efforts to obtain assurances that
confidential treatment will be accorded to any Confidential Matters so
disclosed.
B-2
<PAGE>
INJUNCTIVE RELIEF. Notwithstanding the provisions of Article ____ of this
Agreement, the parties agree that Buyer or Seller may enforce provisions
of this Article ___ by an action for injunctive relief or other equitable
remedies.
NO IMPLIED LICENSE GRANT. Except as expressly provided herein, nothing
contained in this Agreement shall be construed or deemed to grant, either
directly or indirectly or by implication, any license under any existing
or future intellectual property rights of Seller.
B-3
<PAGE>
APPENDIX C
ELECTRONIC DATA INTERCHANGE ("EDI") TRANSMISSION
This Appendix C contemplates the future issuance and transmission by electronic
means between OMNIPOINT and Ericsson of information and Orders, Blanket Orders,
(all hereinafter in this Appendix C referred to as "Orders"), acknowledgments
thereof by OMNIPOINT, and "Invoices." The EDI transactions between OMNIPOINT
and Ericsson shall be in accordance with this Agreement. This Appendix C shall
not apply to Orders delivered solely in hard copy document form.
OMNIPOINT and NT shall conduct EDI transactions by forwarding their EDI
transmissions through a third-party computer network with which Ericsson and
OMNIPOINT have a services agreement (the "Network"). Ericsson and OMNIPOINT
shall provide such authorization to the Network as may be necessary to
accomplish the electronic transmission of such party's data as contemplated
hereunder.
The EDI transactions between Ericsson and OMNIPOINT shall be made in accordance
with the version of the American National Standards Institute ("ANSI") Business
Data Interchange Standards ANSI X12, inclusive of transaction sets, data
dictionary, data elements and transmission control, unless other EDI
transmission standards are agreed to in writing by the parties. Each party
shall be responsible for its respective costs incurred in sending and receiving
EDI transmissions.
Each Order placed through EDI transmission between Ericsson and OMNIPOINT shall
reference both the agreement number of this Agreement and the applicable
Ericsson Order number. Drawings, specifications and the like that pertain to an
Order will not be sent by EDI transmission, but instead by TDI or delivered to
OMNIPOINT by Ericsson in tangible form referencing the Order number. The
parties may, but shall not be required to, deliver hard copy documents of the
electronically transmitted Orders and acknowledgments thereto.
An Order (ANSI X12, Transaction Set 850) shall be transmitted electronically by
Ericsson to OMNIPOINT through the Network. OMNIPOINT shall be required to
access at least once on each business day the agreed upon Network to determine
whether it has received any Orders. A functional Acknowledgment of Receipt of
Transmission (ANSI X12, Transaction Set 997) shall be provided by the receiving
party to the sending party immediately upon receipt of an EDI transmission. A
full Transaction Acknowledgment (ANSI X12, Transaction Set 855) shall be
transmitted by OMNIPOINT within two (2) business days after transmittal of the
functional Acknowledgment of Receipt of Transmission.
Each Order shall contain and each full Transaction Acknowledgment shall confirm
the price, quantity, Delivery Location, location to which the invoice shall be
rendered for payment, method
<PAGE>
of shipment, Delivery Date and/or Shipping Date. In the event that OMNIPOINT
cannot comply with the price, quantity, and other terms referenced above as set
forth in the electronically transmitted Order, OMNIPOINT shall notify Ericsson
to that effect in the full Transaction Acknowledgment. Upon such notification,
Ericsson shall, in addition to any remedies available to it under the Agreement,
have the option to require OMNIPOINT's compliance with the Agreement, accept
OMNIPOINT's revised order data, counter OMNIPOINT's revised Order data with a
modified Ericsson request, or cancel the Order in whole or in part. Shipment of
BTSs shall be made by OMNIPOINT to Ericsson accordance with the terms of the
Agreement.
If Ericsson reschedules, cancels or otherwise changes an Order in accordance
with the terms of the Agreement, Ericsson will transmit electronically to
OMNIPOINT a Purchase Order Change (ANSI X12, Transaction Set 860) and OMNIPOINT
will transmit electronically a Purchase Order Change Acknowledgment (ANSI X12,
Transaction Set 865) to Ericsson within two (2) business days after receipt by
OMNIPOINT of the Purchase Order Change.
Any forecast information (ANSI X12, Transaction Set 830 with a quantity status
code of "D" shown in the applicable time period field on such Transaction Set)
provided to OMNIPOINT by Ericsson ordering location utilizing EDI transmission
is solely intended for use in OMNIPOINT's forward planning and is not to be
construed or interpreted as an Order or as a commitment by Ericsson to buy and
quantity of BTSs except as set forth in the Agreement.
A Transaction Set 830 Release (ANSI X12, Transaction Set 830 with a quantity
status code of "C" shown in the applicable time period field on such Transaction
Set) shall be provided to OMNIPOINT by Ericsson ordering location to confirm a
Delivery Date and/or Shipping Date for firm shipping quantities bought by
Ericsson pursuant to a Blanket Order where Ericsson requires that OMNIPOINT send
an Advanced Shipment Notice (ANSI X12, Transaction Set 856) prior to shipment.
Upon receipt of such Transaction Set 830 Release, OMNIPOINT shall thereafter
transmit to Ericsson such Advanced Shipment Notice not less than the number of
days agreed upon between the Delivery Location and OMNIPOINT prior to shipment
of the quantity of BTSs covered by such Transaction Set 830 Release.
Each party acknowledges and agrees that neither party shall have any liability
for Orders erroneously transmitted to or received due to the malfunction of or a
defect in the Network's system or other causes beyond the transmitting party's
reasonable control. If OMNIPOINT receives a distorted EDI transmission,
OMNIPOINT shall promptly contract the Network to reject the distorted
transmission and request that such transmission be resent. If OMNIPOINT
receives an Order by EDI transmission stating a quantity and/or price
significantly higher or lower than the typical quantity and/or price shown on
Orders issued by Ericsson, OMNIPOINT shall promptly contract such ordering
location to confirm the accuracy of the electronically transmitted Order.
An "Invoice" (ANSI X12, Transaction Set 810) may be transmitted electronically
by OMNIPOINT to Ericsson through the Network. Ericsson, when ordering under
this Agreement, shall be required to access at least once on each business day
the agreed upon Network to
C-2
<PAGE>
determine whether it has received any invoices. A functional acknowledgment of
receipt of transmission (ANSI X12, Transaction Set 997) shall be provided by the
receiving party to the sending party immediately upon receipt of an EDI
transmission.
Each Invoice shall contain at least the price per unit, quantity, invoice
number, invoice date, all relevant extra charges and taxes, purchase order
number, total invoice amount, unit of measure, packing slip number, and shipping
date.
Each party acknowledges and agrees that neither party shall have any liability
for Invoices erroneously transmitted to or received by Ericsson due to the
malfunction of or a defect in the Network's system or other causes beyond the
transmitting party's reasonable control.
Each party shall adopt as its signature an electronic identification consisting
of symbol(s) or code(s) which are to be affixed to or contained in each document
transmitted by such party ("Signatures"). Each party agrees that any Signature
of such party affixed to or contained in any transmitted document shall be
sufficient to verify that such party originated such document. Each party shall
use reasonable efforts to not disclose the Signature of the other party to any
unauthorized third party.
This Appendix C shall evidence the intent of the parties to create binding
purchase and sale obligations pursuant to the electronic transmission and
receipt of documents specifying at a minimum the applicable terms which are
required by this Agreement to be included in such documents.
Any document properly transmitted pursuant to this Appendix C shall be
considered, in connection with any transaction and this Agreement, to be a
"writing" or "in writing"; and any such document when containing, or to which
there is affixed, a Signature ("Signed Documents") shall be deemed for all
purposes (a) to have been "signed" and (b) to constitute an "original" when
printed from electronic files or records established and maintained in the
normal course of business.
The conduct of the parties pursuant to this Appendix C, including the use of
Signed Documents properly transmitted pursuant to this Appendix C, shall, for
all legal purposes, evidence a course of dealing and a course of performance
accepted by the parties in furtherance of this Appendix C and this Agreement.
The parties agree not to contest the validity or enforceability of Signed
Documents under the provisions of any applicable law relating to whether certain
agreements are to be in writing or signed by the party to be bound thereby.
Signed Documents, if introduced as evidence on paper in any judicial,
arbitration, mediation or administrative proceedings, shall be admissible as
between the parties to the same extent and under the same conditions as other
business records originated and maintained in documentary form. Neither party
shall contest the admissibility of copies of Signed Documents under either the
business records exception to the hearsay rule or the best evidence rule on the
basis that the Signed Documents were not originated or maintained
C-3
<PAGE>
in documentary form. In the absence of a notice that a transmitted electronic
document was received with garbled information or other evidence of faulty EDI
transmission, the originating party's records of the contents of an electronic
document so transmitted shall control in the event of a conflict between the
records of the parties as to such electronic document.
C-4
<PAGE>
APPENDIX D
----------
TECHNICAL SPECIFICATIONS
<PAGE>
*CONFIDENTIAL INFORMATION;
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
APPENDIX E
----------
QUALITY STANDARDS
1. Quality Standards.
-----------------
OMNIPOINT shall be required to have its processes for design, procurement,
manufacturing, delivery and other related areas qualified to meet the
requirements of Ericsson's corporate standard (as reasonably amended by
Ericsson from time to time) and shall allow Ericsson reasonable access,
upon five (5) Business Days notice, during normal business hours, to its
facilities and data for source inspection and process audits, provided that
in such cases Ericsson personnel involved shall be subject to OMNIPOINT's
normal safety, security and confidentiality requirements and shall not
unreasonably interfere with the business operations of OMNIPOINT. Should
Ericsson reasonably believe that a source inspection is necessary, such
inspection may include a review of any or all function tests.
2. Quality Measurements.
--------------------
2.1 OMNIPOINT agrees to respond to quality concerns expressed by Ericsson,
following receipt from Ericsson of appropriate data and suspect material,
in the following manner: *
2.2 OMNIPOINT agrees to monitor and report to Ericsson BTS reliability
through laboratory testing.
<PAGE>
APPENDIX F
----------
CLASS A CHANGES
1. The following describes Class "A" change types and applications procedures
for each:
1.1 Change Type "A"
---------------
Changes which are needed to correct inoperative electrical or mechanical
conditions, extremely unsatisfactory operating conditions, or conditions
which result in safety hazards. The use of the Class A designation has the
following impact:
(a) Shipment of the affected BTS materials will stop until the change is
incorporated. Analysis will determine at what stage of production the
change will be incorporated. In many cases, the change may cause
factory production of the affected BTSs to be stopped.
(b) OMNIPOINT-owned Products will be modified.
(c) Requires OMNIPOINT change notice action to inform Ericsson of the
change. This could possibly affect installation dates or necessitate
origination of a remedial order to correct equipment which has been
delivered to Ericsson.
(d) Requires OMNIPOINT action which assures Ericsson notification of Class
A changes through change notice procedures.
Application: Immediate action shall be taken by OMNIPOINT and Ericsson to
correct the condition on all jobs or BTSs in the hands of OMNIPOINT or
Ericsson.
Record: No record of figures and options (such as wiring and apparatus)
previously shown on the drawing shall be maintained.
1.2 Change Type "AC"
----------------
Changes which are needed to correct inoperative electrical or mechanical
conditions, or unsatisfactory maintenance or operating conditions, or
conditions which result in safety hazards, except that the conditions are
caused by circuit combinations or options which exist only on certain jobs
or BTSs.
To compensate for marginal (worse circuit) cases where the inoperative or
unsatisfactory conditions exist on certain jobs or BTSs and are not or
cannot be associated with specific circuit combinations or options, for
example, high traffic usage problems (where a specific unit cannot meet the
design intent), environmental problems (not including local
F-1
<PAGE>
conditions under which a BTS was never intended to operate), etc. The
applicable condition shall be described on the change authorization.
Regardless of the condition, the use of the Class AC designation may have
the following impact:
(a) Shipment of the affected BTS will stop until the change is
incorporated. Analysis will determine at what stage of production the
change will be incorporated. In many cases, the change may cause
factory production of the affected BTS to be stopped.
(b) The BTS will be modified if specified in the change authorization.
(c) Requires OMNIPOINT change notice action to inform Ericsson of the
change. This could possibly affect installation dates or necessitate
origination of remedial order to correct equipment which has been
delivered to Ericsson.
(d) Requires OMNIPOINT action which assures Ericsson notification of
changes through change notice procedures.
Application: Action shall be taken by OMNIPOINT and Ericsson to
selectively correct the condition on those jobs or BTSs affected. The
charge shall be applied as specified in the change authorization.
Record: A detailed record of figures and options (such as wiring and
apparatus) previously shown on the circuit drawing shall be maintained.
1.3 Change Type "AR"
----------------
Changes which are needed to correct unsatisfactory electrical or
mechanical, or unsatisfactory operating conditions, which may be allowed to
exist on a temporary basis. Regardless of the condition, the use of the
Class AR designation has the same impact as Class A except that in some
cases, jobs may be delivered to Ericsson without incorporating the change
as noted under application.
Application: This change shall be made by Ericsson and OMNIPOINT on all
jobs in the hands of Ericsson or OMNIPOINT as soon as possible. Those jobs
in the hands of OMNIPOINT shall have the change made before delivery to
Ericsson except where delivery is approved by Ericsson, in which case the
change shall be applied as soon as possible after delivery.
Record: No record of figures and options (such as wiring and apparatus)
previously shown on the drawing shall be maintained.
F-2
<PAGE>
2. For Class A changes, OMNIPOINT shall perform replacements or repairs, at no
charge to Ericsson.
All changes that require only like-for-like circuit pack swap will be
shipped to Ericsson. Ericsson requirements for OMNIPOINT to be on-site to
perform the circuit pack swaps will be a billable issue and Ericsson will
be billed for job labor and expenses.
F-3
<PAGE>
APPENDIX G
----------
MUTUAL NON-DISCLOSURE AGREEMENT
G-1
<PAGE>
OMNIPOINT CORPORATION
---------------------
MUTUAL NON-DISCLOSURE AGREEMENT
-------------------------------
This Agreement is made by and between ERICSSON NETWORK SYSTEMS, INC.
("Erisccon") its subsidiaries and affiliates a Delaware corporation, having its
principal place of business at 730 International Parkwat, Richardstown, Texas
75081 and OMNIPOINT CORPORATION ("Omnipoint") a Delaware corporation having its
principal place of business at 7150 Campus Drive, Suite 155, Colorado Springs,
CO 80920.
The parties are evaluating the possibility of entering into a contractual
arrangement relating to the design, development and/or production of wireless
telecommunications services, products or equipment. In furtherance of that
evaluation process and for such other purposes as the parties may agree in
writing, the parties may wish to disclose to each other Proprietary Information
(as defined below).
Both parties acknowledge and agree that their relationship with respect to
such discussions and other exchanges of information is one of mutual trust and
confidence and that both parties will have, through such discussions and other
exchanges of information, access to Proprietary Information (as defined below).
Both parties agree that it and each of its officers, directors, employees,
agents, accountants and counsel will maintain the confidentially of all such
Proprietary Information as follows:
1. PROPRIETARY INFORMATION. "Proprietary Information", for the purposes
of this Agreement, shall mean all information and know-how, whether ornot in
writing, disclosed by one party to the other party and relating to the business,
technical or financial affairs of the disclosing party or its subsidiarie,
affiliates, customers, potential customers, suppliers or potential suppliers.
Proprietary Information may include, by way of illustration and not limitation,
any invention, product, formula, method, technique, composition, compound,
project, development, plan, vendor information, customer information, apparatus,
equipment, trade secret, process, research, reports, clinical data, financial
data, technical data, computer program, software, software documentation,
hardware design, technology, marketing or business plan, forecast, unpublished
financial statement, budget, license, price, cost and personnel data.
Notwithstanding the public knowledge through legal means without fault by the
receiving party, is already public knowledge prior to the disclosing party's
disclosure of the same to the receiving party, or is known to the receiving
party to the disclosure of the same pursuant to this Agreement.
-1-
<PAGE>
2. OBLIGATIONS.
------------
a. The receiving party will not disclose any of the disclosing
party's Proprietary Information or part thereof to others outside the receiving
party, and will not use the same for any purpose other than as expressly
contemplated by this Agreement.
b. The receiving party agrees that all files, letters, memoranda,
reports, records, data, sketches, drawings, labatory notebooks, program
listings, or other written, photographic, or other tangible material containing
disclosing party Proprietary Information which the receiving party creates or
which shall come into its custody or possession shall be and are the exclusive
property of the disclosing party to be used by the receiving party only for the
purposes expressly contemplated by this Agreement. All such records or copies
thereof and all tangible property of the disclosing party in the custody or
possession of the receiving party shall be delivered to the disclosing party
upon the request by the disclosing party. After such delivery, the receiving
party shall not retain any such records or copies thereof or any such tangible
property.
3. PRESERVATION OF CONFIDENTIALITY. The receiving party will use the same
degree of care in safeguarding the Proprietary Information as it uses for its
own confidential or like information and shall restrict disclosure of the
Proprietary Information to thos employees and agents authorized by the receiving
party to receive the same in furtherance of the purposeses of this Agreement.
4. GENERAL.
--------
a. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement.
b. No delay or ommission by eother party in exercising any right
under this Agreement will operate as a waiver of that or any other right. A
waiver or consent given by either party on any one occasion is effective only in
that instance and will not be construed as a bar to or waiver of any right on
any other occasion.
c. This Agreement is governed by and will be construed in accordance
with the laws of the State of Delaware.
d. Both parties acknowledge that breach of the foregoing obligations
may cause injury to the disclosing party and that the disclosing party may seek
and obtain injunctive or other equitable relief against such breach or
threatened breach without prejudice to any other remedies which may be available
to it.
e. Nothing in this Agreement shall be construed as establishing or
implying any partnership between the parties and nothing in this Agreement shall
be deemed to constitute either of the parties hereto as the agent of the other
-2-
<PAGE>
party or to authorize either party to incur any expenses on behalf of the other
party or to commit the other party in any way whatsoever, without obtaining the
other party's prior written consent.
f. Nothing contained in the Agreement shall be construed as implying
any commitment or agreement by either party to make any investment in the other
party or in any business of the other party or to enter into any other business
arrangement of any nature whatsoever with the other party.
g. The obligations of confidentiality hereunder in respect of any
Proprietary Information shall terminate five (5) years from the date of the
disclosure of such Proprietary Information.
BOTH PARTIES READ ALL OF THE PROVISIONS OF THIS AGREEMENT AND
UNDERSTAND AND AGREE TO EACH OF SUCH PROVISIONS.
ERICSSON NETWORK SYSTEMS, INC.
By: /s/ Michael L. Margolis
---------------------------------------------------
Name: Michael L. Margolis
---------------------------------------------------
Title: Vice President - Marketing
---------------------------------------------------
Date: June 15, 1993
----------------------------------------------------
OMNIPOINT CORPORATION
By: /s/ Evelyn Goldfine
---------------------------------------------------
Name: Evelyn Goldfine
---------------------------------------------------
Title: Director of Administration
---------------------------------------------------
Date: June 16, 1993
---------------------------------------------------
-3-
<PAGE>
APPENDIX H
TO BE PROVIDED
<PAGE>
APPENDIX I
TO BE PROVIDED
<PAGE>
APPENDIX J
RESERVED
<PAGE>
Exhibit 3
FINAL
EXECUTION COPY
--------------
AGREEMENT FOR PURCHASE AND SALE
OF
ERICSSON INC. MOBILE TERMINAL UNITS
BETWEEN
ERICSSON INC.
AND
OMNIPOINT COMMUNICATIONS INC.
<PAGE>
*CONFIDENTIAL INFORMATION;
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
TABLE OF CONTENTS
<TABLE>
<CAPTION>
<S> <C>
RECITALS........................................................................... 1
AGREEMENT.......................................................................... 1
1. DEFINITIONS..................................................................... 2
2. PRODUCTS; PURCHASE ORDERS AND SCOPE OF SUPPLY................................... 4
2.1 SCOPE OF AGREEMENT; PRODUCTS................................................ 4
2.2 PRODUCTS.................................................................... 4
2.3 PERSONS AUTHORIZED TO PURCHASE; SUPPLY OF DELIVERABLES AND PURCHASE ORDERS.. 5
2.4 TECHNICAL INTERFACE......................................................... 6
2.5 POINT-OF-SALE PACKAGING..................................................... 7
2.6 PRODUCT TEST INSTRUMENTATION................................................ 8
2.7 ACCESSORIES................................................................. 8
2.8 UPDATE TO CHANGED STANDARDS................................................. 8
2.9 CO-BRANDED PRODUCTS......................................................... 9
2.10 ALLOCATION OF PRODUCTION................................................... 10
* ................................................... 11
* ................................................... 11
2.13 SOFTWARE LICENSE........................................................... 12
2.14 DATABASE................................................................... 12
2.15 COUNTRY OF ORIGIN.......................................................... 12
.......................................................... 12
2.17 ADVERTISING DISPLAY MATERIAL............................................... 12
2.18 COMPATIBILITY WITH DISABLED OR HANDICAPPED END-USERS....................... 12
2.19 CONTINUING PURCHASES....................................................... 13
* ....................................................... 13
3. CUSTOMER REPRESENTATIVE......................................................... 13
3.1 CUSTOMER REPRESENTATIVE..................................................... 13
3.2 CUSTOMER REPRESENTATIVE DUTIES.............................................. 13
3.3 UPDATE MEETINGS............................................................. 13
3.4 BUYER'S PARTICIPATION IN PRODUCT DEVELOPMENT................................ 14
4. QUALITY ASSURANCE............................................................... 14
4.1 MARKET VERIFICATION TEST; COMMERCIAL TEST PROCEDURE......................... 14
4.2 SAMPLE TESTING.............................................................. 15
4.3 ISO 9000 COMPLIANCE; AUDITS................................................. 15
4.4 INCOMING INSPECTION......................................................... 15
5. PRICES......................................................................... 15
5.1 PICE LIST ................................. 15
* ..................................................... 17
5.3 RETURN POLICY.............................................................. 19
5.4 TAXES AND OTHER CHARGES.................................................... 19
5.5 PRICES INCLUDE............................................................. 19
5.6 SELLER TO HOLD BUYER HARMLESS.............................................. 19
5.7 PRICES DETERMINED AT TIME OF SHIPMENT...................................... 19
</TABLE>
-i-
<PAGE>
*CONFIDENTIAL INFORMATION;
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6. INVOICING AND TERMS OF PAYMENT......................................... 19
6.1 INVOICE UPON SHIPMENT................................................ 19
6.2 INVOICE DETAIL AND ELECTRONIC VERSION................................ 19
6.3 PAYMENT.............................................................. 19
6.4 PAST DUE PAYMENTS.................................................... 19
6.5 AMOUNTS IN DISPUTE................................................... 20
* ................................................... 20
8. TRADEMARKS AND LOGOS .................................................. 20
8.1 BUYER'S LOGO ON PRODUCTS; ADVANCE CONSENT OF BUYER FOR OTHER LOGOS.. 20
8.2 LIMITED USE OF MARKS................................................ 20
8.3 ARTWORK AND REPRODUCTION............................................ 21
9. ORDERS ................................................................ 21
9.1 ORDER FORECAST; INITIAL ORDER....................................... 21
9.2 ISSUANCE, ACKNOWLEDGMENT AND ACCEPTANCE OF PURCHASE ORDER........... 24
9.3 ELECTRONIC DOCUMENT INTERCHANGE..................................... 25
9.4 WAREHOUSING......................................................... 25
9.5 INABILITY TO MEET REQUIRED SHIPPING DATE............................ 25
* ............................ 25
9.7 DISCREPANCIES....................................................... 26
9.8 DELIVERY............................................................ 27
9.9 MODIFICATIONS TO PURCHASE ORDER..................................... 27
9.10 FURTHER DESCRIPTION................................................ 28
10. TERM.................................................................. 28
10.1 TERM............................................................... 28
10.2 EXTENDED TERM FOR CERTAIN PROVISIONS............................... 28
11. TITLE AND RISK OF LOSS................................................ 28
12. PRODUCT SUPPORT....................................................... 28
12.1 TRAINING SUPPORT................................................... 28
12.2 TECHNICAL SUPPORT.................................................. 29
12.3 DOCUMENTATION...................................................... 29
12.4 SURVIVAL AND EXTENDED TERM......................................... 29
13. TERRITORY AND TRANS-SHIPMENT.......................................... 30
13.1 TERRITORY.......................................................... 30
13.2 NO TRANS-SHIPMENT.................................................. 31
14. WARRANTY AND SERVICE REPAIR........................................... 31
14.1 PRODUCT WARRANTY................................................... 31
14.2 SOLE REMEDY; EXCESSIVE FAILURE..................................... 32
14.3 LIMITATION......................................................... 32
14.4 EXTENDED WARRANTY.................................................. 32
14.5 END-USER WARRANTY.................................................. 33
14.6 SERVICE REPAIR AND REPLACEMENT..................................... 33
14.7 SURVIVAL AND TERM.................................................. 33
15. TERMINATION; LIMITATION OF LIABILITY.................................. 33
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15.1 DEFAULT........................................................... 33
15.2 FAILURE TO PURCHASE............................................... 33
15.3 BANKRUPTCY........................................................ 34
15.4 LIMITATION OF LIABILITY........................................... 34
15.5 RIGHTS OF PARTIES UPON TERMINATION BY SELLER...................... 35
16. CONFIDENTIALITY...................................................... 35
16.1 CONFIDENTIAL INFORMATION DEFINED.................................. 35
16.2 EXCEPTIONS........................................................ 36
16.3 SURVIVAL.......................................................... 36
17. FORCE MAJEURE........................................................ 36
17.1 FORCE MAJEURE..................................................... 36
17.2 BUYER'S RIGHT TO TERMINATE FOR FORCE MAJEURE...................... 37
17.3 SELLER'S RIGHT TO TERMINATE FOR FORCE MAJEURE..................... 37
18. PRODUCT LIABILITY INDEMNIFICATION..................................... 37
19. INTELLECTUAL PROPERTY INDEMNIFICATION ............................... 38
20. DISPUTE RESOLUTION................................................... 38
20.1 INTERNAL ESCALATION............................................... 38
20.2 MEDIATION......................................................... 38
20.3 ARBITRATION OF DISPUTES........................................... 39
20.4 CONTINUE TO PERFORM............................................... 40
21. * ...................................... 40
22. INSURANCE............................................................ 40
22.1 SELLER TO MAINTAIN................................................ 40
22.2 BUYER TO MAINTAIN................................................. 40
22.3 LEVEL OF INSURANCE................................................ 40
22.4 CERTIFICATES OF INSURANCE......................................... 41
22.5 NO WAIVER......................................................... 41
23. ASSIGNMENT........................................................... 41
23.1 CONSENT REQUIRED.................................................. 41
23.2 INVALID WITHOUT COMPLIANCE........................................ 41
23.3 ASSIGNS........................................................... 41
24. NOTICES.............................................................. 42
25. PUBLICITY............................................................ 42
26. COMPLIANCE WITH LAWS; GOVERNING LAW.................................. 43
27. WAIVERS OF DEFAULT................................................... 43
28. AMENDMENTS........................................................... 43
29. ORDER OF PRECEDENCE.................................................. 43
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30. HEADINGS............................................................. 44
31. SEVERABILITY......................................................... 44
32. SURVIVAL............................................................. 44
33. LICENSE.............................................................. 44
34. PARTY RELATIONSHIP................................................... 44
35. COUNTERPARTS......................................................... 44
36. ATTACHMENTS AND INCORPORATION........................................ 45
36.1 INCORPORATION..................................................... 45
36.2 ORDER OF PRIORITY................................................. 45
37. ENTIRE AGREEMENT..................................................... 45
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*CONFIDENTIAL INFORMATION;
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LIST OF CONTRACT ATTACHMENTS
ATTACHMENT DESCRIPTION
Attachment A-1 Description of CH337/CF337 (specifications)
Attachment A-2 Description of CH388/CF388 (specifications)
Attachment A-3 Description of CA318 EFR (specifications)
Attachment B Forecasting and Ordering Processes (on an "if
required basis")
Attachment C Dates for Completion of Attachments
Attachment D Prices
Attachment E Sample Testing Protocol
Attachment F (Reserved)
Attachment G *
Attachment H End-user warranty
Attachment I Database Format
Attachment J Advertising Display Material
Attachment K Return Policy
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<PAGE>
EXECUTION COPY
Agreement for Purchase and Sale
of
Ericsson Inc. Mobile Terminal Units
This Agreement for Purchase and Sale of Ericsson Inc. Mobile Terminal Units (the
"Agreement"), is made and effective as of the ____ day of April, 1996, by and
between Omnipoint Communications Inc., a Delaware corporation, with its
principal place of business in Arlington, Virginia ("Buyer") and Ericsson Inc.,
a Delaware corporation, with its principal place of business in Richardson,
Texas ("Seller").
RECITALS
A. Buyer has received authority from the FCC (as defined hereinbelow) to
construct and operate PCS (as defined hereinbelow) networks in certain
areas within the jurisdiction of the United States and may receive
authority to operate additional such systems.
B. Seller, or an affiliate of Seller, and Buyer, contemporaneously herewith,
are entering into the Infrastructure Agreement (as defined hereinbelow)
whereby Buyer's Affiliate (as defined hereinbelow) agrees to purchase
certain network infrastructure goods and services for certain of such PCS
Systems from Seller or Seller's affiliate.
C. Seller has offered to sell to Buyer the wireless communications
subscriber devices and accessories described herein at the prices and
discounts specified herein.
D. Buyer's entry into the Infrastructure Agreement is conditioned upon
Seller's commitment to supply the wireless communications subscriber
devices and accessories upon the terms and price defined in this
Agreement.
E. Seller wishes to sell and Buyer wishes to buy certain wireless
communications subscriber devices and accessories under the terms and
conditions set forth in this Agreement and the associated Attachments
that are incorporated herein.
AGREEMENT
Now, Therefore, in consideration of the premises and mutual covenants set
forth herein and for other good and valuable consideration, the sufficiency
of which is hereby acknowledged, the parties, intending to be legally
bound, agree as follows:
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1 DEFINITIONS
-----------
Capitalized terms used within this Agreement or within an Attachment to this
Agreement are defined in this Section in alphabetical order or in an
Attachment.
AFFILIATE means any partnership, corporation or other entity in which Buyer owns
a twenty percent (20%) or greater equity interest or any entity
controlling, controlled by or under common control with Buyer after
applying the attribution rules of Section 318 of the Internal Revenue Code
of 1986, as amended (the "Code"), which operates or is authorized to
operate a Cellular System or PCS system in North America including the
Caribbean Islands.
ANNUAL FORECAST means that annual forecast of purchase volume, updated
quarterly, supplied by Buyer to Seller, as more specifically described in
Section 9.1.
*
BTA means Basic Trading Area, a geographic area designated by the Federal
Communications Commission for the purpose of granting authorizations to
construct and operate PCS networks.
BUYER means Omnipoint Communications, Inc.
- -----
COMMERCIAL SERVICE means "Commercial Service" as that term is defined in the
- ------------------
Infrastructure Agreement.
CONFIDENTIAL INFORMATION means information that the parties are obligated to
protect as more fully provided in Section 16.
END-USER means the customer of a Permitted Purchaser (i.e., the person that buys
- --------
and uses a Product).
FCC OR FEDERAL COMMUNICATIONS COMMISSION means the agency of the United States
Government charged with authorizing PCS networks, currently the Federal
Communications Commission, or its successor agency.
GUARANTEED ORDER PERIOD means that * of time
- -----------------------
commencing on the date hereof and terminating on the *
of the date hereof.
HANDSET(S) means a mobile station in the PCS service intended to be used while
in motion or during halts at unspecified points and conforming to the PCS
1900 specifications, as appropriate. Handsets include handheld portable
units and units installed in vehicles.
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INFRASTRUCTURE AGREEMENT means that certain contract, captioned "Acquisition
Agreement for Ericsson CMS 40 Personal Communications System (PCS)
Infrastructure Equipment," entered into contemporaneously herewith between
Buyer and Seller (or Seller's affiliate) covering the purchase and sale of
network infrastructure equipment and related services.
INTELLECTUAL PROPERTY CLAIM (IP CLAIM) means a claim involving Seller's
intellectual property rights, as more fully described in Section 19.1
INVENTORY means all Products owned and held by Buyer for resale or use.
IS-661 means the TIA/ATIS Interim Standard or proposed Interim Standard
TIA/ATIS/IS-661, first proposed to the Joint Technical Committee on
Wireless Access on November 1, 1993.
MTA means Major Trading Area, a geographic area designated by the Federal
Communications Commission for the purpose of granting authorizations to
construct and operate PCS networks. Where the authorization is granted for
a BTA, references to MTAs shall include BTAs.
ORDER LEAD TIME means the time between the date of a Purchase Order and the
Requested Shipping Date of the Product.
PERMITTED PURCHASER means those persons identified or described in Section
2.3.1.
PERSONAL COMMUNICATIONS SERVICE ("PCS") means a system authorized by the FCC to
provide public correspondence using cellular radio techniques and operating
in the frequency band 1850 MHz to 1910 MHz and 1930 MHz to 1990 MHz.
PRODUCTS means the wireless communication devices and accessories supplied by
Seller to Buyer in accordance with this Agreement, including, without
limitation, Handsets, Accessories and related documentation as the same may
be modified, added or discontinued during the term of this Agreement (where
the addition, modification or discontinuance is in accordance with this
Agreement) and available for purchase by Buyer or otherwise supplied to
Buyer under this Agreement.
PURCHASE ORDER means Buyer's order to Seller for specific Products, as more
fully described in Section 2.
REQUESTED SHIPPING DATE means the date, as shown in a Purchase Order or
otherwise, upon which Buyer requests shipping of certain Products, as more
fully described in Section 9.
REQUIRED SHIPPING DATE means that date upon which Seller has agreed to ship
Products, as more fully described in Section 9.
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SECTION means, when used without any other reference, sections, including
subsections, within this Agreement.
SOFTWARE means (a) all computer software furnished hereunder for use with
Products including, but not limited to, computer programs contained on a
magnetic or optical storage medium, in a semiconductor device, or in
another memory device or system memory consisting of (i) hardwired logic
instructions which manipulate data in central processors, control input-
output operations, and error diagnostic and recovery routines, (ii)
instruction sequences in machine-readable code that control call
processing, peripheral equipment and administration and maintenance
functions; and (b) documentation furnished hereunder for use and
maintenance of the Software.
SPARE PARTS means those replacement parts needed to maintain Products in working
order.
SUBSCRIBER IDENTITY MODULE (SIM) means mean an electronic module, either in the
form of an integrated circuit "smart card" or otherwise, that contains
personalization information concerning a user and is intended to be
inserted in and removed from a SIM reader in Handset Products.
TERRITORY means all MTAs or BTAs in which Buyer operates PCS businesses.
2 PRODUCTS; PURCHASE ORDERS AND SCOPE OF SUPPLY
---------------------------------------------
2.1 SCOPE OF AGREEMENT; PRODUCTS The terms and principles established in
this Agreement cover the supply by Seller of Products, as well as
ancillary services and Software, and other information and services as
required under this Agreement. Except as limited by Section 13,
Products may be sold or leased by Buyer to its customers or its
dealers or agents or to other parties. In addition, Products may be
used for Buyer's administrative, marketing and operational purposes.
Attachment A-1 through Attachment A-3 set forth and establish the
specifications for specific Products and Attachment D describes the
price for specific Products. Neither Buyer, nor any Affiliate, nor
any Authorized Purchaser has any obligation hereunder to buy any
Product from Seller, except upon the issuance of a purchase order. At
any time during the term set forth in Section 10, Buyer may, at its
option, direct Seller to supply any part of the Products pursuant to
one or more purchase orders issued by Buyer in accordance with this
Agreement (such individual or multiple purchase orders being referred
to as a "Purchase Order").
2.2 PRODUCTS. Seller shall sell and deliver the Products described and
set forth in Attachment A-1 through Attachment A-3, or as otherwise
provided in this Agreement, upon the terms and conditions established
in this Agreement, to Buyer in such quantities as may be requested by
Buyer pursuant to this Agreement and in the manner set forth herein.
Seller agrees to update the Products
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*CONFIDENTIAL INFORMATION;
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available to Buyer under this Agreement, as new versions of existing
Products and new Product models become available from Seller upon the
terms and conditions set forth herein, including those set forth in
Section 5.
2.3 PERSONS AUTHORIZED TO PURCHASE; SUPPLY OF DELIVERABLES AND PURCHASE
ORDERS.
2.3.1 PERSONS PERMITTED TO BUY PRODUCTS. This Agreement contemplates
purchases by Buyer and certain other persons, as defined below.
The entities defined in Sections 2.3.1.1 through 2.3.1.3 are
collectively referred to as "Permitted Purchasers."
2.3.1.1 BUYER. Buyer is permitted to purchase under the terms and
conditions applicable to Buyer.
2.3.1.2 AFFILIATES. Affiliates are permitted to purchase under the
terms and conditions in this Agreement applicable to Buyer,
except that each Affiliate is severally liable, and Buyer is
not responsible for payments owed by an Affiliate to Seller.
2.3.1.3 *
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2.3.2 RESPONSIBILITY FOR PAYMENT. Buyer has no responsibility for
payments of obligations incurred by any purchaser except for
itself. Seller shall not seek payment from Buyer for any sums
owed by any purchaser except Buyer.
2.3.3 CREDITWORTHINESS. For any Permitted Purchaser other than
Buyer, Seller may establish commercially reasonable, non-
discriminatory credit (and other) qualifications as a pre-
condition to sales.
2.3.4 NO THIRD PARTY BENEFICIARY. Affiliates and Authorized
Purchasers shall be entitled to the benefit of this Agreement
only to the extent so indicated, shall not be deemed to be third-
party beneficiaries of this Agreement and, except when
specifically permitted to make purchases hereunder, shall not
have the right to enforce this Agreement against Buyer or Seller.
2.3.5 EXCLUSIVE PURCHASES. Nothing in this Agreement shall require
Buyer, or any other Permitted Purchasers, to purchase exclusively
from Seller.
2.3.6 ORDERS BY AUTHORIZED PURCHASERS. Authorized Purchasers shall
place orders for Products using a commercially reasonable
mechanism established by Seller, including order confirmation, as
may be established by Seller.
2.3.7 NON-INTERFERENCE. Seller agrees that it shall not intentionally
interfere in the relationship between Buyer and Buyer's
Affiliates, dealers and agents.
2.3.8 PARALLEL CONTRACT BY AFFILIATES. To simplify administration of
purchases by Affiliates, unless otherwise agreed by Buyer, Seller
and the respective Affiliate, each Affiliate shall enter into a
separate contract with Seller consistent with Seller's
obligations to provide to such Affiliate(s) the same terms and
conditions provided to Buyer herein.
2.3.9 MINIMUM ORDER. Orders under this Agreement shall be for a
minimum quantity of two hundred (200) units of the Product
ordered for delivery to a single location.
2.3.10 LOCUS OF SALES. Sales to Buyer, Affiliates or Authorized
Purchasers shall be intended for resale or use within the
Territory.
2.4 TECHNICAL INTERFACE. *
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2.5 POINT-OF-SALE PACKAGING.
Seller shall use Universal Product Code ("UPC") stock control
numbering ("SKU") markings or other customer-specific bar code
markings on the outside of the point-of-sale package for each of the
packaging options described below. Seller shall provide information to
Buyer concerning Seller's bar coding and serial number coding for
Products, sufficient to permit Buyer to properly electronically read
Seller's bar coding and to be able to monitor and track Products
received. Invoices and shipping notices shall include electronic
copies of serial numbers and other information reasonably needed by
Buyer to track and control inventory.
Buyer shall select, from time-to-time, its desired packaging format
from among the options described below, subject to the limitations
established therein. In the event that Buyer wishes to change its
desired packaging format, Buyer and Seller shall meet to discuss the
lead time necessary to effect such change. Seller may establish
commercially reasonable minimum order quantities for each type of
packaging.
2.5.1 SELLER-LABELED BOX. The Product is shipped in Seller's
standard size rectangular box labeled with Seller's trade name.
2.5.2 GENERIC BOX. The Product is shipped in Seller's standard size
rectangular box without any labels, in a plain white cardboard
format. In the event that any labels, packaging or identifying
marks are attached to,
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*CONFIDENTIAL INFORMATION;
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or wrapped around such box, the label, packaging or identifying
marks shall include the "Ericsson Inc." logo.
2.5.2 GENERIC BOX. The Product is shipped in Seller's standard size
rectangular box without any labels, in a plain white cardboard
format. In the event that any labels, packaging or identifying
marks are attached to, or wrapped around such box, the label,
packaging or identifying marks shall include the "Ericsson
Inc." logo.
2.5.3 BULK-SHIP. The Product is shipped in a bulk package, without
individual packages for each unit of Product. Under this
option, Buyer has the obligation to arrange for individual unit
packaging. In the event that any labels, packaging or
identifying marks are attached to, or wrapped around any
individual unit packaging, the label, packaging or identifying
marks shall include the "Ericsson Inc." logo.
2.5.4 CUSTOM PACKAGE. The Product is shipped in Seller's standard
size rectangular box with Buyer's artwork and inserts
("Commercial Product" packaging). Buyer shall provide the
necessary artwork in such format and upon such schedules as may
be reasonably agreed by the parties. *
Seller shall ensure that the proper materials and information
are inserted in the corresponding Commercial Product packaging
and are delivered to the corresponding geographical regions.
Seller may impose a commercially reasonable charge to recover
its increased cost in providing custom packaging.
2.6 PRODUCT TEST INSTRUMENTATION. At no cost to Buyer, beginning on or
before July 1, 1996, Seller shall provide Buyer the quantity of
Seller's "download box" specified below and provide on-site training
in the proper use of such equipment. Seller shall provide Buyer
with *
under this Agreement, but in no event shall *
Additional quantities of download boxes shall be available
for purchase at the price set forth in Attachment D. Once *
Buyer and
Seller shall review the ratio of Handsets to download boxes and make
an appropriate adjustment based upon the experience of the parties.
2.7 ACCESSORIES. Seller will include a standard set of accessories with
each Handset as identified and set forth in Attachment A-1 through
Attachment A-3. In addition, Seller will offer a set of optional
accessories available at additional cost as identified in Attachment
D.
2.8 UPDATE TO CHANGED STANDARDS. *
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*
2.8.3 In no event shall Seller be required to install such updates,
or reimburse any Permitted Purchaser or any End-User for any
costs of installing the updated Software pursuant to this
Section.
2.8.4 Notwithstanding anything to the contrary contained herein,
Seller shall comply with the final order of any court or
administrative body with respect to any required modification
of any Product.
2.9 CO-BRANDED PRODUCTS.
2.9.1 CO-BRANDED PRODUCTS. Buyer may wish to receive all or part of
its orders in the form of co-branded Products, whereby Buyer's
name appears on the Product in addition to Seller's name (such
Products being referred to as "Co-Branded Products"). Such Co-
Branded Products may be in slightly different form, different
color, etc. as may be mutually agreed by Buyer and Seller. Co-
Branded Products shall be available to Permitted Purchasers to
the extent determined by Buyer. Seller's logo shall also appear
on Co-Branded Products.
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2.9.2 PRICES FOR CO-BRANDED PRODUCTS. The parties shall negotiate any
price change for Co-Branded Products consistently with this
Section 2.9.2. Where the change necessary for a Co-Branded
Product requires the addition of Buyer's artwork to the Product,
where Buyer provides any necessary camera-ready artwork and where
more than an aggregate of twenty-five thousand (25,000) units of
the particular Co-Branded configuration is to be purchased by
Buyer or Authorized Purchasers, no additional charges shall be
made for the changed labeling. In other instances, the additional
charge for a Co-Branded Product shall be based upon *
Notwithstanding anything to the contrary contained in
the preceding sentences, *
Seller's charges for packaging of a Co-Branded Product
are to be determined in the manner set forth in Section 2.6.
2.9.3 TYPE APPROVAL. Where FCC or other regulatory agencies require Type
Approval or other regulatory approval for a Co-Branded Product, Seller
shall cooperate with Buyer in seeking and obtaining such approval.
Seller's cooperation shall include, if so requested by Buyer, copies
of data from other filings or testing of Products and submission of
requests for approval as Buyer's agent. Seller's charge for services
under this Section 2.9.3 *
2.10 ALLOCATION OF PRODUCTION. In the event that Seller is unable to meet
its orders for Products, Seller shall use a fair, non-discriminatory
method of allocating production among its customers. Seller's
allocation of production shall not relieve Seller from liability for
damages as may be provided elsewhere in this Agreement. In the event
that Seller believes that it is, or that it will reasonably be, unable
to meet Buyer's forecast orders, Seller shall promptly inform Buyer of
the method of allocation that it employs, the percentage of supply
allocated to Buyer and Affiliates, the number of Products that Buyer
and Affiliates shall receive under Seller's allocation methodology and
when Seller expects that such allocation shall cease. Seller shall
maintain this information up-to-date and promptly inform Buyer of
changes.
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2.11 *
2.13 SOFTWARE LICENSE. Subject to the limitations set forth elsewhere in
this Agreement, * Seller hereby grants
to Buyer a nonexclusive license to use Software associated with
Products delivered to Buyer.
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2.14 DATABASE. Seller shall provide electronic format data concerning
each Handset Product shipped, in the format set forth in Attachment I.
The form of data and its media may be changed from time-to-time by
mutual agreement of the parties.
2.15 COUNTRY OF ORIGIN. Upon request by Buyer, Seller shall provide Buyer
with evidence of country of origin of Products, including the usual
and customary certificates of country of origin, signed by an
appropriate authorized official of Seller.
*
2.17 ADVERTISING DISPLAY MATERIAL. Seller shall create the normal and
customary point-of-sale display material, product brochures, dummy
mobile telephones, etc. and furnish reasonable quantities of the same
to Permitted Purchasers at the prices set forth in Attachment D.
Seller shall cooperate with Buyer in producing this material and, upon
request by Buyer, add reasonable Buyer-defined information to the
point-of-sale material. Reasonable quantities of the sales material
described in Attachment J will be provided by Seller to Buyer without
charge. Such quantities shall be consistent with those quantities
offered to other customers of Seller under similar circumstances.
2.18 COMPATIBILITY WITH DISABLED OR HANDICAPPED END-USERS. Seller warrants
that, upon delivery, Products will comply with all FCC rules or other
regulations concerning compatibility with disabled or handicapped End-
Users, including hearing impaired End-Users using hearing aids, blind
End-Users, etc., applicable as of the date of such delivery. Seller
also warrants that, to the extent applicable to Seller or Buyer,
Seller's Products comply with the requirements of the Americans With
Disabilities Act, 42 U.S.C. (S)12101. Seller shall add to its
instruction manuals information concerning use of Products by disabled
or handicapped persons. Further, Seller agrees to use commercially
reasonable efforts to make modifications to the Products to
accommodate disabled or handicapped End-Users.
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*
2.20 COMPETITIVE FEATURES DEVELOPMENT. Seller acknowledges that it is of
significant interest to Buyer that Buyer be able to offer End-Users
data and fax capabilities in conjunction with Handsets. Accordingly,
Seller agrees that it will continue to explore the possibilities of
adding and improving upon fax and data capabilities, and other
features, as, in its discretion, Seller deems commercially fit.
3 CUSTOMER REPRESENTATIVE
-----------------------
3.1 CUSTOMER REPRESENTATIVE. Seller shall identify a customer
representative (the "Customer Representative") with overall
responsibilities as described below. Seller shall delegate to the
Customer Representative such authority within Seller's organization as
is necessary for proper discharge of the duties and obligations set
forth in this Agreement.
3.2 CUSTOMER REPRESENTATIVE DUTIES. The Customer Representative shall
provide timely information to Buyer concerning shipping and delivery
schedules, manufacturing of co-branded or other custom Products,
specifications, features and functions, inter-operability, and other
related matters. The Customer Representative shall be Buyer's primary
point of contact for all issues arising from the implementation and
execution of the terms and conditions of this Agreement.
3.3 UPDATE MEETINGS. The parties shall meet not less than once every
calendar quarter to review Buyer's needs for Products, and discuss new
Products (such meeting being referred to as an "Update Meeting"). At
least thirty (30) days prior to each Update Meeting, Buyer shall
submit to Seller a written, proposed agenda, outlining the development
issues Buyer would like addressed by Seller. Seller shall review such
proposed agenda and will provide an update to Buyer on any such issue
where Seller has provided, or is willing to provide, an update to any
customer or other third party. Further, at each Updated Meeting,
Seller will provide to Buyer an update on the status of the
development of any features Seller anticipates will be launched within
the forthcoming two (2) years, provided that Seller has disclosed, or
is willing to disclose, such information to any customer or other
third party.
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3.4 BUYER'S PARTICIPATION IN PRODUCT DEVELOPMENT.
3.4.1 From time to time Seller may request that Buyer participate in
Seller's design process for Products, including but not limited
to the following activities:
*
3.4.2 To the extent that Seller so requests Buyer's participation in
any of the above, or any other development activity, including,
but not limited to, Beta testing, Buyer shall consider Seller's
request on a reasonably timely basis and, to the extent Buyer
participates in such development activity, Buyer agrees to do so
in good faith.
4 QUALITY ASSURANCE
-----------------
4.1 MARKET VERIFICATION TEST; COMMERCIAL TEST PROCEDURES.For each new
model of Product, *
Seller will provide
Buyer, * prototypes for market
testing. Buyer shall test the units according to any protocols
submitted by Seller and may additionally test the units as Buyer deems
appropriate. In addition, for each new model of Product, *
Seller will provide Buyer, *
units for Beta testing in accordance with Seller's protocols. Buyer
shall conduct all such testing in good faith and shall submit the
results to Seller *
In addition, if Seller so requests, all test units,
including all Beta units, shall be returned to Seller upon completion
of the tests.
4.2
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4.3 ISO 9000 COMPLIANCE; AUDITS. Seller shall produce Products in
accordance with a quality system meeting the requirements established
in ISO Standard 9001. Seller shall maintain ISO 9001 certification and
shall, upon request by Buyer, furnish Buyer a copy of Seller's ISO
certification. Buyer may conduct quality audits of Seller's
manufacturing facilities up to four times a year, with advance notice
of five (5) working days.
4.4 INCOMING INSPECTION. In addition to the sample testing described in
Section 4.2, Buyer shall have the right to conduct up to one hundred
percent (100%) inspection of all incoming products ("Incoming
Inspection"). Any Incoming Inspection shall be completed within thirty
(30) days of receipt of the Product undergoing inspection. The
Incoming Inspection shall determine completeness of shipment, physical
and electrical condition of Products, and otherwise verify conformance
of the Products with the specifications thereof. Buyer shall have the
right to reject any Product failing Incoming Inspection. Buyer,
however, shall not have the right to delay payment, where payment to
Seller is otherwise due, by virtue of Buyer's failure to complete
Incoming Inspection *
Buyer's performance of Incoming Inspection, however, shall not prevent
Buyer from making claims under other provisions of this Agreement for
defective, mis-delivered or otherwise incorrect Products.
5 PRICES
------
5.1 PRICE LIST; CHANGES AS NEW PRODUCTS ARE INTRODUCED. The prices for the
Products as set forth in Attachment D are firm and shall be adjusted
only as provided in this Agreement. Notwithstanding anything to the
contrary contained in the previous sentence or contained elsewhere in
this Agreement, Seller acknowledges and agrees that, with respect to
that certain Purchase Order (as defined hereinbelow) placed by Buyer
on or about March 7, 1996 for one hundred thousand (100,000) Handsets,
the price(s) to be charged to Buyer upon delivery of such Handsets
shall be equal to or less than the base price of Handsets identified
for the third and fourth quarters of 1996 as set forth in Attachment
D. If, at any time during the term of this Agreement, Seller
implements changes in the Products, modifies the drawings and
specifications relating thereto, or substitutes therefor products of
more recent design through proposed amendments to this Agreement, in
addition to any other requirements provided in this Agreement, any
changes, modifications or substitutions must comply with each of the
following requirements with respect to changes to existing Products or
new Products intended as replacements for existing Products:
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5.1.1 INTERCHANGEABILITY. Where the new or changed Product is
intended to be physically interchangeable with an existing
Product, such new or changed Product must not adversely affect
physical or functional interchangeability with existing Products
or performance, unless otherwise agreed in writing by Buyer.
5.1.2 PRICE. The price for equivalent Product (i.e., with similar
form (including size and weight), features, functionality and
accessories) must be at or below the price provided in this
Agreement, unless otherwise agreed in writing by Buyer.
*
5.1.3 ACCESSORY COMPATIBILITY. Where a new Product is introduced,
Seller shall ensure that, to the greatest extent reasonably
feasible, the new Product is plug-compatible with older Products
for accessories. It is not Buyer's intention to limit Seller's
ability to introduce smaller or lighter Products through this
Section 5.1.3. However, Seller shall give due consideration to
ensuring compatibility of, among other things, battery chargers,
hands-free kits, etc., when introducing new Products.
5.1.4 NO REDUCTION IN SELLER'S OBLIGATIONS. The introduction by
Seller of a new Product in substitution of a Product set forth in
Attachment A will not in any way reduce or in any way diminish
Seller's obligations under the warranties provided in this
Agreement nor will it reduce or diminish in any way the scope of
warranties and representations provided to Buyer under this
Agreement.
5.1.5 ADVANCE NOTICE.
5.1.5.1 Seller will provide Buyer with advance written notice of
any substantial change, modification or substitution, including
notice of Seller's intention to change the Product's price.
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However, notice is not necessary where Seller
reasonably considers the change as minor, where there is no price
change and where there has been compliance with the provisions of
Sections 5.1.1 through 5.1.4. *
5.1.5.2 Notwithstanding anything to the contrary contained in
Section 5.1.5.1, Seller shall give Buyer
5.1.6 AMENDMENTS. Where each of the requirements established in
Sections 5.1.1 through this Section 5.1.6 has been met to Buyer's
reasonable satisfaction, Buyer and Seller shall agree upon an
amendment to this Agreement reflecting the agreement of the
parties, such amendment to be accomplished as required in Section
28. *
New Products that are not substitutes or replacements for existing
Products need not comply with Section 5.1.
5.2 *
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*
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5.3 RETURN POLICY. Buyer shall have the right to return Product, subject
to re-stocking charges and other limitations set forth in Seller's
"Standard Return Policy," as amended from time to time, a copy of the
current version being attached hereto as Attachment K.
5.4 TAXES AND OTHER CHARGES. Seller shall calculate its prices as provided
below.
5.5 PRICES INCLUDE. Seller's prices are exclusive of charges for freight
and insurance for delivery to the Buyer's designated destination.
Seller shall bear the cost of all taxes, import and export duties, and
other governmental fees of whatever nature except sales and use taxes,
which shall be added to the net invoice prices as applicable and
stated as separate items on the invoice applicable to each Purchase
Order.
5.6 SELLER TO HOLD BUYER HARMLESS. Seller agrees to pay, and to hold Buyer
harmless from and against, any penalty, interest, tax or other charge
that may be levied or assessed as a result of the delay or failure of
Seller for any reason to pay any tax or file any return or information
required by law, rule or regulation or by this Agreement to be paid or
filed by Seller.
5.7 PRICES DETERMINED AT TIME OF SHIPMENT. The price invoiced Buyer shall
be the price determined in accordance with this Agreement, as of the
date of shipment of the Product.
6 INVOICING AND TERMS OF PAYMENT
------------------------------
6.1 INVOICE UPON SHIPMENT. Seller shall issue an invoice to Buyer for
Products at the time of shipment.
6.2 INVOICE DETAIL AND ELECTRONIC VERSION. Seller shall submit invoices to
Buyer in detail satisfactory to Buyer. Upon request by Buyer and when
implemented by Seller, Seller shall provide invoices in an electronic
format mutually agreed that meets Buyer's reasonable needs.
6.3 PAYMENT. Buyer guarantees to Seller to pay invoices within thirty (30)
calendar days of Buyer's receipt of an invoice.
6.4 PAST DUE PAYMENTS. Any payment not made within thirty (30) days of
receipt of invoice shall be subject to a late payment charge applied
against the unpaid portion of the charge. The late payment charge
shall be applied daily after the due date until payment is received.
The daily late payment charge shall be calculated
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by multiplying the outstanding balance for the day by that certain
quotient, the numerator of which is *
6.5 AMOUNTS IN DISPUTE. Where Buyer disputes the amount due under an
invoice, Buyer shall pay the sum not in dispute. Sums disputed in good
faith shall not be considered late under Section 6.4. Where the sum in
dispute, or the cumulative sum in all outstanding disputes, exceeds
two million dollars ($2,000,000), Seller may require Buyer to deposit
the amounts in dispute into an escrow account. In this event, the
interest earned in the escrow account and the fees in establishing and
maintaining the escrow account shall be divided by the parties in
proportion to the resolution of the disputed sum. The escrow shall be
treated for federal income tax purposes as a grantor trust by Buyer.
In the event Seller requires the escrowing of such amounts, the
interest earned in the escrow account and the fees in establishing and
maintaining the escrow account shall be divided by the parties in
proportion to the resolution of the disputed sum, provided, however,
that Buyer/Seller shall receive, on an annual basis, a distribution
from the escrow equal to the product of the accrued interest income
and Buyer's/Seller's marginal combined federal and state income tax
rate. *
8 TRADEMARKS AND LOGOS
--------------------
8.1 BUYER'S LOGO ON PRODUCTS; ADVANCE CONSENT OF BUYER FOR OTHER LOGOS'.
At Buyer's request, the individual Products shipped under this
Agreement shall carry Buyer's designated logo and/or labeling as
described in Section 2.9
8.2 LIMITED USE OF MARKS. To ensure protection of each party's trademarks,
trade names, corporate slogans, corporate logo, goodwill and product
designations,
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Seller, without the express written consent of Buyer, and Buyer,
without the express written consent of Seller, shall have no right to
use any such marks, names, slogans or designations of Buyer or Seller,
as the case may be, in the sales, lease or advertising of any Products
or on any Product container, component part, business forms, sales,
advertising and promotional materials or other business supplies or
material, whether in writing, orally or otherwise.
8.3 ARTWORK AND REPRODUCTION. To the extent requested by Buyer and in
accordance with Sections 2.9 and 8.1, Buyer shall provide Seller with
camera-ready artwork of Buyer's trademarked logo labels. Buyer hereby
authorizes Seller to reproduce such trademarked labels to Buyer's
satisfaction for the sole purpose of affixing such trademarked labels
to the Products and point-of-sale packaging in accordance with Buyer's
specifications. Buyer represents and warrants to Seller that it has
the right, by way of ownership or otherwise, to use such logo and
further agrees to indemnify and hold Seller harmless for any losses,
damages or other liabilities resulting from the use of Buyer
designated logo. The parties will agree upon reasonable provisions for
samples and approval of trademarked labels added to Products.
9 ORDERS
------
9.1 ORDER FORECAST; INITIAL ORDER. This Section defines the mechanism by
which Buyer provides periodic forecasts of its demand and delivery
requirements with a corresponding delivery time from Seller and
provides a mechanism for certain firm orders to be placed with
guaranteed delivery.
9.1.1 FORECAST OF DEMAND. Once each month, Buyer shall furnish
Seller with a rolling forecast, showing Buyer's projected
purchases month-by-month during the forthcoming twelve (12)
months. The initial forecast shall be provided no later than
sixty (60) days from the date hereof. Buyer and Seller shall
agree upon the level of detail to be provided in the
forecast and the mechanism and location of delivery.
9.1.2 *
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9.1.2.1 ORDER SO IDENTIFIED. Buyer must indicate in writing on
the face of such order, by transmittal letter, or in
some other form of written direction, that the Purchase
Order be given Guaranteed Order status. With respect to
the placement of the initial Guaranteed Order, the
parties hereby acknowledge and agree that the Purchase
Order submitted by Buyer to Seller on or about
that Buyer and Seller shall mutually agree to the
shipment dates for such Guaranteed Order
9.1.2.2 MINIMUM QUANTITIES. The Purchase Order must meet the
minimum delivery location and quantities defined
elsewhere in this Agreement for the Product
configuration ordered.
9.1.2.3 *
9.1.2.4 MULTIPLE DELIVERIES. The Purchase Order may call for
multiple deliveries over a defined interval, where each
delivery complies with this Section 9.1.2.
9.1.2.5 *
9.1.2.6 *
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*
9.1.2.7 CHANGE OF MODEL MIX. Buyer may change the model mix of
any shipment of any Guaranteed Order and Seller shall
honor such changes subject to the following:
9.1.2.7.1 All such changes must be made in writing.
9.1.2.7.2 For changes requested where Products are
sought to be substituted for other Products
within that same model family (i.e., flip v.
non-flip versions of otherwise identical
items), requests for changes made at least
ninety (90) days prior to the Required Shipping
Date shall be honored, without adjustment to
the Required Shipping Date.
9.1.2.7.3 For changes requested where (a) Products are
sought to be substituted for other Products
within that same model family, but the request
is made less than ninety (90) prior to the
Required Shipping Date or (b) Products are
sought to be substituted for other Products
outside the model family, Seller shall, within
ten (10) days of receipt of such request,
notify Seller whether the requested change is
acceptable and/or whether such changes will
necessitate a change in the Required Shipping
Date. *
9.1.4 OTHER ORDERS. Other than for Guaranteed Orders, which are
addressed elsewhere herein, Seller shall use its best
commercially reasonable efforts to meet Buyer's Purchase
Orders. Where the Purchase Order is within the quantity
forecast in the rolling forecast provided in this Section 9.1,
Seller shall normally be able to meet Buyer's requirements.
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In the event that Seller believes that it will not be able to
meet Buyer's requirements, Buyer and Seller shall cooperate in
developing a mutually agreeable plan to provide appropriate
quantities of Products to mitigate the effects on Buyer's
operations.
9.2 ISSUANCE, ACKNOWLEDGMENT AND ACCEPTANCE OF PURCHASE ORDER. Buyer shall
issue and Seller shall handle Purchase Orders in accordance with the
following requirements:
9.2.1 ISSUANCE AND ACKNOWLEDGMENT OF RECEIPT; INVENTORY REPORTS.
Buyer shall order Products under this Agreement by issuing and
delivering to Seller one or more Purchase Orders transmitted by
facsimile, electronic document interchange ("EDI") or otherwise
delivered in writing to Seller. Seller shall confirm receipt of
the Purchase Order in writing within two (2) business days of
receipt thereof. Where technologically feasible, Seller shall
confirm receipt and acceptance of such Purchase Order using the
same transmission technique used by Buyer in placing the
Purchase Order. This confirmation shall not be deemed
acceptance of the Purchase Order. To assist Buyer in placing
Purchase Orders promptly, Seller shall make available to Buyer
a monthly inventory report, detailing Seller's inventory count
and planned production runs for the *
categorized by model of Product for Buyer's Co-Branded
Products. Seller's planned production runs shall be a good
faith statement of Seller's plans, but Seller shall not be held
to any particular production quantity by virtue of the planned
production run information furnished under this Section 9.2.1.
9.2.2 REQUESTED SHIPPING DATE; DETAILS IN PURCHASE ORDER. Each
Purchase Order shall reference this Agreement, and shall state
the model number, Product description, quantity of Products
ordered, Buyer's desired shipping date (the "Requested Shipping
Date"), method of shipment, delivery/ship-to location, unit
price for each Product ordered and total purchase price for the
Purchase Order. Any Purchase Order intended by Buyer to be a
Guaranteed Order shall include the information required in
Section 9.1.2.
9.2.3 ACCEPTANCE. Where the Purchase Order is in accordance with this
Agreement, Seller shall, *
confirm its acceptance in writing. Should Seller
believe that the Purchase Order is not in accordance with this
Agreement, Seller shall, in writing, reject such Purchase Order
and inform Buyer of the reasons for Seller's rejection *
In such case, Seller is not
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deemed to have accepted the Purchase Order, unless Seller's
rejection is arbitrary, in bad faith or is frivolous or is
otherwise inconsistent with this Agreement. Seller's failure to
reject any Purchase Order within the five (5) day period shall be
deemed acceptance of the Purchase Order.
9.2.4 REQUIRED SHIPPING DATE. Except for Guaranteed Orders, upon
acceptance of each Purchase Order, Seller shall indicate the
shipping date to which it commits ("Required Shipping Date.").
With respect to Guaranteed Orders, where Buyer's Requested
Shipping Date allows for the minimum Order Lead Time required on
Guaranteed Orders, as specified in Section 9.1.2.3, Seller shall
commit to a shipping date not later than Buyer's Requested
Shipping Date.
9.3 ELECTRONIC DOCUMENT INTERCHANGE. To facilitate transactions under this
Agreement, the parties shall, upon the request of Buyer, substitute
electronic data exchange for conventional paper-based documents when
feasible. Each party agrees to provide "Electronic Data Interchange"
access for Purchase Order transmission, acknowledgment of
order/shipment, invoicing, order ship confirmation, inventory status
and other related information. The parties shall cooperate in making
their respective data processing and communications systems properly
interact to provide Electronic Data Interchange and shall mutually
agree upon a schedule and format for introducing Electronic Data
Interchange.
9.4 WAREHOUSING. Seller shall provide warehousing facilities sufficient to
ensure timely delivery to all locations that Buyer has identified for
delivery of Products. Should Seller's standard warehousing and
shipping arrangements prove inadequate to meet Buyer's reasonable
requirements, Seller shall remedy the problem promptly. Seller's
warehousing facilities may be supplied by Seller or a third party.
9.5 INABILITY TO MEET REQUIRED SHIPPING DATE. Once a Purchase Order has
been accepted, Seller is expected to deliver the Products in such
quantities, in such manner and in such time as specified in the
Purchase Order, unless Buyer agrees upon otherwise. If Seller believes
that Seller will be unable to comply with the terms of a Purchase
Order that Seller has previously accepted, including accepting Buyer's
Requested Shipping Date as the Required Shipping Date, Seller shall
provide notice to Buyer of Seller's inability to comply as described
below. Seller's notice, however, shall not relieve it of liability
for delay in performance unless the delay is otherwise excused under
this Agreement.
9.6 *
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9.7 DISCREPANCIES. Buyer shall report to Seller any discrepancies
concerning the quantity of Products shipped or drop-shipped within
five (5) days following delivery, or whenever Buyer discovers the
discrepancy, whichever comes later.
9.8 DELIVERY. All Products shall be delivered freight prepaid to the
delivery point provided in the Purchase Order. Buyer's delivery points
include, but are not limited to, Buyer's or Affiliate warehouse,
customer or retailer sites and other drop-ship locations, all such
drop shipments being limited to a two hundred (200) unit minimum. Any
Purchase Order may specify multiple delivery points, and Buyer shall
be able to alter the delivery point address by notice to Seller, in
writing, at least three (3) days prior to the shipping date.
9.9 MODIFICATIONS TO PURCHASE ORDER. Except to the extent restricted by
this Agreement, Buyer retains the right to modify or cancel, in whole
or in part, any Purchase Order prior to complete performance thereof
by Seller. Any such modification or cancellation shall be subject to
the provisions set forth below and to this Agreement.
9.9.1 MODIFIED OR CANCELED PURCHASE ORDER. Excepting for Guaranteed
Orders, Buyer may modify or cancel any Purchase Order through
notice to Seller and acknowledgment by Seller in accordance
with the procedure established in Section 9 for new Purchase
Orders, including scheduling. In the event of modification or
cancellation of a Purchase Order by Buyer, Seller may be
entitled to claim compensation as provided in Section 9.9.2.
9.9.2 CHANGE IN COSTS. If any modification or cancellation of a
Purchase Order under this Section 9 causes a change in the cost
of Seller's performance of the Agreement, except modifications
or cancellations for cause as provided in Sections 9.8.1 and
9.10.1 or elsewhere in this Agreement, the purchase price to be
charged by Seller shall be equitably adjusted. Buyer shall
inform Seller of its intention to demand a price decrease due
to the variation, and Seller shall inform Buyer of its
intention to demand a price increase due to the variation *
after the receipt by the Seller of the modified or
canceled Purchase Order. Provided, however, that Buyer need not
give notice to Seller of Buyer's intention to claim a payment
reduction due to any cancellation or reduction in quantity of
Products. In such instances, Seller shall reduce appropriately
and automatically the invoice amount to reflect the reduced
quantity of Product ordered. The determination of any price
adjustment shall in no event delay any performance by Seller
under this Agreement. Where Seller claims a price adjustment
under this Section 9.9 upon the theory that it has performed
work that is not reusable in fulfilling its obligations under
other Purchase Orders issued
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by Buyer, Seller must so demonstrate. In addition, Seller must
demonstrate that such non-reusable work cannot reasonably be
restocked or otherwise used by Seller in fulfillment of its
obligations to other customers.
9.10 FURTHER DESCRIPTION. If mutually deemed necessary by the parties, a
description of the forecasting and ordering processes, consistent with
the terms hereof, may be developed to more specifically describe such
processes, and such description will be set forth in Attachment B, to
be attached to this Agreement subsequent to the date hereof. *
10 TERM
----
10.1 TERM. Unless sooner terminated in accordance with the provisions of
this Agreement, the initial term of this Agreement shall commence upon
the date hereof and end on the fifth (5th) anniversary of the date
hereof (such period of time being referred to as the "Term").
10.2 EXTENDED TERM FOR CERTAIN PROVISIONS. As explicitly provided herein,
certain provisions of this Agreement may have a longer term and shall
survive the termination of other portions of this Agreement.
11 TITLE AND RISK OF LOSS
----------------------
Title and risk of loss shall pass to Buyer upon delivery of the
Products. Upon the conveyance of title to Products, Seller shall
convey to Buyer all rights and title therein by appropriate documents
with warranty of title, free and clear of all liens and encumbrances.
Title to Seller's intellectual property, including software, patents,
copyrights, trademarks and tradenames, shall not be conveyed to Buyer
at any time.
12 PRODUCT SUPPORT
---------------
12.1 TRAINING SUPPORT. Seller shall provide *
training support to Buyer as provided below:
12.1.1 TECHNICAL TRAINING. Seller will train Buyer's personnel in
connection with the installation, re-programming, use, and
maintenance of the Products. Consistent with the requirements
of Section 12.3, Seller shall give Buyer a reasonable number
of copies of Product documentation, including, but not limited
to, re-programming and installation instructions, standards
and specifications, maintenance procedures and
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usage instructions, except as Seller considers to be
proprietary or confidential.
12.1.2 SALES TRAINING. Seller shall train Buyer's sales personnel on
the Products, including training materials for on-site sales
personnel training, providing detailed feature and benefits
summaries, configuration drawings, accessory descriptions,
programming instructions and the like.
12.1.3 CUSTOMER SERVICE TRAINING. Seller shall train Buyer's
customer operations personnel, including training materials for
on-site customer service training, providing detailed feature,
configuration drawings, trouble shooting Q&A, and programming
instructions.
12.1.4 REPRODUCTION RIGHTS; UPDATED TRAINING MATERIAL.
*
Seller will provide Buyer with training documentation in both
paper and electronic formats and for on-line documentation to be
shared by multiple users. Seller will provide Buyer with updates
to training manuals and training equipment and software at no
charge to Buyer. Buyer will work with Seller to establish the
training guidelines and modules. Seller will conduct training at
Buyer's sites of choice with no each category of
training defined in Sections 12.1.1 through 12.1.3. Seller will
provide Buyer with *
Buyer will provide Seller with a single point of
contact for updates and resolutions.
12.2 TECHNICAL SUPPORT. Seller shall provide
technical support to Buyer as described below:
TELEPHONIC CONSULTATION. Beginning on the date hereof, Seller
shall maintain, during normal business hours, a technical product
support ("800") telephone "hotline" covering the Products. Buyer,
by calling this number, shall have the ability to receive
detailed technical support for Products, including answers to
technical questions involving Product operation, fault diagnosis,
inter-operability and other technical aspects of the Products.
12.3 DOCUMENTATION. Seller shall supply Buyer with the documentation
described below in both printed format and on upon magnetic storage
medium. Where documentation exists in draft or preliminary form, it
shall be supplied to Buyer in such draft or preliminary form, and
updated as described in Section 12.4. All
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documentation supplied shall be in accordance with the best standards
for similar Products, whether from Seller or other suppliers.
12.3.1 TECHNICAL DOCUMENTATION. Except as Seller considers to be
proprietary or confidential, technical documents to be
supplied include, but are not limited to: block diagrams;
service manual (including theory of operation); spare parts
catalog; installation and preventive maintenance procedures;
training manual; configuration guide; installation and
planning guide; commercial/sales training instructions.
12.3.2 FIRMWARE. Except as Seller considers to be proprietary or
confidential, Seller shall provide to Buyer a firmware manual,
including general description of firmware architecture, to the
extent appropriate for the level of maintenance performed by
Buyer.
12.3.3 DELIVERY DATES AND REPRODUCTION. Complete sets of the
documents described in Sections 12.3.1 and 12.3.2, inclusive,
shall be delivered promptly on execution of this Agreement and
in correspondence with any addition or modification to
Products or the addition of new Products to this Agreement.
12.3.4 SPARE PARTS. Seller shall prepare and provide to Buyer a
recommended list of spare parts identifying the quantities and
types recommended for maintenance of the Products the first
large quantity shipment of Products.
12.3.5 TECHNICAL BULLETINS AND NOTES. Except as Seller considers to
be proprietary or confidential, Seller shall provide to Buyer,
without charge, all technical bulletins and notes related to
Products, whether issued periodically or aperiodically.
12.3.6 TEST AND DIAGNOSTIC MODE INFORMATION. Except as Seller
considers to be proprietary or confidential, Seller shall
provide the information specified at Section 2.5 concerning
the technical interface to Products, including test and
diagnostic mode information.
12.4 SURVIVAL AND EXTENDED TERM. Seller shall be responsible for revising
and issuing its documentation and for providing Buyer with complete
and up-to-date documentation as provided in Section 12.3 and for
providing Buyer with technical support as provided in Section 12.2.
Seller's obligations under Sections 12.2, 12.3 and this Section 12.4
shall survive the term of this Agreement and shall end five (5) years
after the delivery of the last unit of any Product under this
Agreement.
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13 TERRITORY AND TRANS-SHIPMENT
----------------------------
13.1 TERRITORY. Buyer shall be appointed as a nonexclusive distributor of
the Products in the Territory.
13.2 NO TRANS-SHIPMENT. During the term of this Agreement, Buyer shall not
knowingly trans-ship, sell, or otherwise transfer the Products
outside the Territory, but Buyer may ship products within its
Territory, even if outside of an MTA. *
14 WARRANTY AND SERVICE REPAIR
---------------------------
14.1 PRODUCT WARRANTY. Without reducing the scope of warranties provided
by Seller elsewhere in this Agreement or that may be imposed upon
Seller at law or in equity, Seller hereby warrants to Buyer as
follows:
14.1.1 INTER-OPERABILITY TESTING. Seller shall certify that it has
tested its PCS 1900 Products with PCS 1900 network
infrastructure manufactured by Seller, Northern Telecom,
Motorola, Nokia and AT&T, to the extent these manufacturers
have a functioning PCS 1900 test system and are willing to
cooperate with Seller in such compatibility testing, and that
the results of such tests demonstrate proper inter-
operability as of the date of testing. Seller shall
periodically inform Buyer of the status of its compatibility
testing and shall provide such information to Buyer when
Seller introduces a new configuration Product.
14.1.2 REGULATORY APPROVALS. Seller warrants that all Products have
received all necessary regulatory approvals.
14.1.3 COMPLIANCE. Seller warrants that all Products will work on
the full PCS spectrum, Bands A through F, inclusive, except
as may be specifically excluded on a product-by-product basis
in Buyer's sole discretion.
14.1.4 GOOD TITLE. Seller warrants that it has good title to the
Products and the right to sell them to Buyer free of any
proprietary rights of any other party, security interest,
lien or any other encumbrance whatsoever.
14.1.5 OPERATIONS WARRANTY. Seller warrants that Products furnished
by Seller hereunder shall be free from defects in material,
workmanship and title, and shall conform to its published
specifications at its time of original purchase. Seller's
obligations set forth below are conditioned on Buyer's giving
written notice to Seller. *
Sellers obligations under this Section 14.1.5 shall not apply
to any Product, or part thereof, which (i) has been modified
or otherwise altered
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<PAGE>
*CONFIDENTIAL INFORMATION;
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
other than pursuant to Seller's written instructions or written
approval, (ii) is normally consumed in operation or, (iii) is not
properly stored, installed, used, maintained or repaired, or,
(iv) has been subjected to any other type of misuse or
detrimental exposure, or has been involved in an accident.
14.1.6 If a Product fails to meet the foregoing Warranties, Seller
shall correct the failure at its option (i) by repairing any
defective or damaged part or parts thereof, or (ii) by making
available at Seller's factory any necessary repaired or
replacement parts. Any repaired or replacement part furnished
hereunder shall be warranted for the remainder of the warranty
period of the Products in which it is installed. Where such
failure cannot be corrected by Seller's reasonable efforts, the
parties will negotiate an equitable adjustment in price. To be
eligible for no-charge labor, service must be performed by an
authorized "Ericsson Servicer" approved for these purposes, at
its place of business, during normal business hours for mobile or
personal equipment.
14.2 SOLE REMEDY; EXCESSIVE FAILURE RATES. Seller's sole and exclusive
obligation under these Warranties is the repair or replacement of
Products manufactured or shipped by Seller that are defective, and the
return shipment of such repaired or replacement items; provided,
however, in the event that more than *
Seller shall: *
14.3 LIMITATION. THE WARRANTIES SET FORTH IN THIS SECTION 14 ARE THE ONLY
WARRANTIES, EITHER EXPRESS OR IMPLIED, THAT ARE MADE BY SELLER TO
BUYER AS TO THE PRODUCTS, AND ALL OTHER WARRANTIES, EXPRESS OR
IMPLIED, STATUTORY OR COMMON LAW, ARE HEREBY EXPRESSLY DISCLAIMED,
INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTIBILITY AND FITNESS FOR A PARTICULAR PURPOSE.
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<PAGE>
*CONFIDENTIAL INFORMATION;
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
14.4 EXTENDED WARRANTY. Seller shall offer Buyer and shall make available
to Buyer's customers, either directly or through Buyer, optional
extended warranty coverage for the Products in one (1) year increments
at additional cost as specified in Attachment D.
14.5 END-USER WARRANTY. In addition, each Product shall come with such
warranty to the End-User, as Seller shall establish as its standard
End-User warranty for the Products from time to time, the current such
standard warranty to the End-User being substantially in the form
attached hereto as Attachment H.
14.6 SERVICE REPAIR AND REPLACEMENT. Seller shall maintain one or more
authorized service centers. The authorized service centers shall be
equipped to repair or exchange, at no cost to the owner of the
Product, defective Products that are within the warranty period, as
described above. For products requiring repair or replacement after
expiration of the applicable warranty period, Seller's authorized
service center shall implement an exchange and repaid policy at
reasonable rates.
14.7 Survival and Term. THE RIGHTS AND WARRANTIES GRANTED IN THIS SECTION
14 SHALL SURVIVE THE TERM OF THIS AGREEMENT AND SHALL REMAIN VALID FOR
THE PERIODS DURING WHICH THE RIGHT OR WARRANTY IS PROVIDED AS
DESCRIBED IN THIS SECTION 14.
14.15 TERMINATION; LIMITATION OF LIABILITY
------------------------------------
15.1 DEFAULT. In the event of a monetary breach of this Agreement, the
non-breaching party shall have the right to terminate this Agreement
upon *
In the event of a non-monetary material breach of this
Agreement, the non-breaching party shall have the right to terminate
this Agreement * unless such breach and any
intervening breaches have been cured within *
provided, however, in the event that such breach shall not reasonably
be capable of being cured within *
the Agreement shall not terminate, unless the breaching party has
failed to diligently pursue cure of the breach within *
or in any event, has failed to cure the breach within *
provided, further, however, that in the event of a breach under
Section 23, the non-breaching party shall have the right to terminate
this Agreement for cause immediately upon the occurrence of such
breach.
15.2 FAILURE TO PURCHASE *
If, in any calendar year during the Term, Buyer purchases from Seller
less than * Seller may, in its discretion,
within *
terminate this Agreement upon written notice, in which
event:
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<PAGE>
*CONFIDENTIAL INFORMATION;
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
(a) Seller may decline any further orders for Product; and
(b) All orders scheduled to be shipped *
shall be shipped and otherwise provided according to
the terms of this Agreement, except that payment for such
shipment shall be C.O.D.; and
(c) For orders scheduled to ship more than Seller may cancel such
orders by written notice included with the notice of
termination referenced herein.
15.3 BANKRUPTCY. Either party may terminate this Agreement by written
notice in the event that the other party (i) applies for or consents
to the appointment of, or the taking of possession by a receiver,
custodian, trustee, or liquidator of itself or of all or a substantial
part of its property, (ii) makes a general assignment for the benefit
of its creditors, (iii) commences a voluntary proceeding under the
Federal Bankruptcy code or under any other law relating to relief from
creditors generally, or (iv) fails to contest in a timely or
appropriate manner, or acquiesces in writing to, any petition filed
against it in an involuntary proceeding under the Federal Bankruptcy
Code or under any other law relating to relief from creditors
generally, or any application for the appointment of a receiver,
custodian, trustee, or liquidator of itself or of all or a substantial
part of its property, or its liquidation, reorganization, dissolution,
or winding-up.
15.4 LIMITATION OF LIABILITY.
15.4.1 THE TOTAL LIABILITY OF SELLER, ON ANY AND ALL CLAIMS, WHETHER
IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE OR PATENT
INFRINGEMENT) OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, OR
RESULTING FROM THE PERFORMANCE OR NON-PERFORMANCE OF ANY AGREEMENT
RESULTING HEREFROM OR FROM THE MANUFACTURE, SALE, DELIVERY, RESALE,
REPAIR, REPLACEMENT OR USE OF THE PRODUCTS OR THE FURNISHING OF ANY
SERVICE, SHALL NOT EXCEED THE PRICE ALLOCABLE TO THE PRODUCT OR
SERVICE WHICH GIVES RISE TO THE CLAIM. EXCEPT AS TO TITLE, ANY SUCH
LIABILITY SHALL TERMINATE UPON THE EXPIRATION OF THE APPLICABLE
WARRANTY PERIOD SPECIFIED IN THE ARTICLE ENTITLED "WARRANTY".
15.4.2 Where a remedy, including a series of optional remedies or
multiple remedies, is set forth in the Agreement, and/or the
Infrastructure Agreement, those remedies shall be the sole and
exclusive remedies for the breach or event for
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<PAGE>
*CONFIDENTIAL INFORMATION;
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
which it is specified. Where no specific remedy is provided, the non-
defaulting party shall have the right to recover from the defaulting
party only its direct damages arising out of that breach or event.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT,
IN NO EVENT, WHETHER AS A RESULT OF BREACH OF CONTRACT, WARRANTY, TORT
(INCLUDING BUT NOT LIMITED TO NEGLIGENCE OR INFRINGEMENT) SHALL SELLER
OR BUYER BE LIABLE UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL OR
INCIDENTAL DAMAGES OF ANY NATURE WHATSOEVER, INCLUDING LOST PROFITS,
OF THE OTHER PARTY, REGARDLESS OF WHETHER SUCH DAMAGES ARE FORESEEABLE
OR WHETHER A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
15.5 RIGHTS OF PARTIES UPON TERMINATION BY EITHER PARTY. In the event of a
termination by Buyer or Seller pursuant to the terms hereof, the
further obligations of the parties under this Agreement shall be
terminated, except as may be specifically provided in this Agreement
for provisions that survive termination. The obligation of the parties
to maintain the confidentiality of information as provided in Section
16, however, shall continue as provided in Section 16.4. The parties
shall make an equitable accounting of any sums due Seller for partial
deliveries, such accounting to be completed *
16 CONFIDENTIALITY
---------------
16.1 CONFIDENTIAL INFORMATION DEFINED. During the term of this Agreement
and thereafter it may be necessary for the parties to mutually
exchange certain information, data and material of a proprietary
nature whether relating to marketing, technical, financial and other
matters. To be treated as confidential hereunder ("Confidential
Information"), information disclosed in writing shall be marked as
confidential or proprietary, and the disclosing party shall indicate
the confidential nature of verbal information at the time of
disclosure. All Confidential Information shall:
16.1.1 BE HELD IN CONFIDENCE. Be received and retained in the
strictest confidence by the parties and will be deemed to be
proprietary information of the disclosing party and the
recipient(s) of such Confidential Information agree(s) that it
(or they) will not disclose it to third parties and further,
will treat such information, data or material as proprietary
using the same degree of care that it (or they) would normally
use in protecting its (or their) own proprietary information.
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<PAGE>
*CONFIDENTIAL INFORMATION;
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
16.1.2 LIMITED USE. Be used by the parties hereto solely for the
purpose of implementing this Agreement.
16.2 EXCEPTIONS. The provisions of Section 16.1 above shall not apply to
any Confidential Information which:
(a) Is known by the receiving party prior to the date hereof, and
is not subject to or in violation of an obligation of
confidentiality;
(b) Is or becomes public knowledge other than by default of the
receiving party;
(c) Is obtained by the receiving party from a bona-fide third
party having free right of disposal of such information;
(d) Is wholly and independently developed by receiving party
without reference to the Confidential Information; or
(e) The receiving party is required to disclose pursuant to a
valid order of a court or other governmental body or any
political subdivision thereof, provided, however, that the
recipient of the information shall first have given notice to
the disclosing party and made a reasonable effort to obtain a
protective order requiring that the information and/or
documents so disclosed be used only for the purposes for
which the order was issued.
16.3 SURVIVAL. This Section 16 shall survive any termination of this
Agreement for a period of *
17 FORCE MAJEURE
-------------
17.1 FORCE MAJEURE. Neither of the parties hereto shall be liable for any
damages or penalty for delay in performance of its obligations under
this Agreement when such delay is due to acts of God, acts of civil or
military authority, fires, floods, epidemics, war or riots, industry-
wide strikes, lockouts or other labor disputes, delays in
transportation or shortage of materials, or any other causes beyond
the reasonable control of such party. The party so affected shall,
upon giving prompt written notice to the other party of the delay and
the cause therefore, be excused from performance to the extent of the
prevention, restriction or interference; provided, however, that the
party so affected shall use reasonable efforts to avoid or remove such
causes of nonperformance and shall continue performance hereunder with
the utmost dispatch whenever such causes are removed. In the event of
Force Majeure delays, the time for performance shall be extended by
mutual agreement of the parties as provided above, but in no case
shall the
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<PAGE>
*CONFIDENTIAL INFORMATION;
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
extension exceed a day-for-day extension based upon the duration of
the act of Force Majeure.
17.2 BUYER'S RIGHT TO TERMINATE FOR FORCE MAJEURE'. Should Force Majeure
prevent Seller from timely performing under this Agreement, where the
Force Majeure delays Seller's performance by such time that, in
Buyer's reasonable judgment, Buyer has lost the benefit of the bargain
or where the delay is such that Buyer must reasonably look to
substitute supplies to protect Buyer's position, Buyer has the right
to terminate this Agreement, notwithstanding the provisions of Section
17.1.
17.3 SELLER'S RIGHT TO TERMINATE FOR FORCE MAJEURE'. Should Force Majeure
prevent Buyer's performance under this Agreement for a period of more
than *
Seller has the right to terminate this Agreement, notwithstanding
the provisions of Section 17.1.
18 PRODUCT LIABILITY INDEMNIFICATION
---------------------------------
Notwithstanding anything to the contrary contained herein, Seller agrees to
defend and indemnify Buyer, its officers, agents and employees, from and
against any damages, claims, demands, liabilities and expenses (including
reasonable attorneys' fees) that arise out of, or result from, the death or
bodily injury to, or damage to tangible property of any third party
resulting from solely from the use of a Product produced by Seller or
Seller's affiliate, except (a) to the extent the defect is in a design or
specification provided by Buyer or (b) the operation of the PCS network or
system caused the use of the Product to result such injury or loss. Seller
shall pay all costs, damages and reasonable attorneys' fees that a court
awards as a result of such claim provided that: (i) Seller has sole control
of the defense and related settlement negotiations; (ii) Buyer provides
Seller with assistance, information and authority reasonably necessary for
Seller to perform its obligations under this Section 18; and (iii) Buyer
notifies Seller in writing within thirty (30) days of the discovery of the
claim. Seller shall not be responsible for any settlement made without its
consent.
19 INTELLECTUAL PROPERTY INDEMNIFICATION
-------------------------------------
19.1 Seller warrants that the Products furnished hereunder shall be
delivered free of any rightful claim of any third party for
infringement of any United States patent, copyright, trademark, or
trade secret. If Buyer notifies Seller promptly of the receipt of any
claim that the Products infringe a United States patent, copyright,
trademark, or trade secret and gives Seller information assistance
and exclusive authority to settle and defend such claim, Seller at
its own expense shall defend, or may settle, any suit or proceeding
against Buyer so far as based on a claimed
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<PAGE>
infringement which breaches this warranty. If, in any such suit
arising from such claim, the continued use of the Products for the
purpose intended is enjoined by any court of competent jurisdiction,
Seller shall, at its expense and option, either: (i) procure for Buyer
the right to continue using the Products, or (ii) modify the Products
so that they become non-infringing, or (iii) replace the Products or
portions thereof so that they become non-infringing, or (iv) accept
the return of the Products and refund the purchase price (less
reasonable depreciation for use). The foregoing states the entire
liability of Seller for patent, copyright, trademark, or trade secret
infringement by the Products and is subject to any limitation of total
liability set forth in this Contract.
19.2 The preceding subsection 19.1 shall not apply to: (i) any portion of
the Products that is manufactured to Buyer's design, or (ii) the use
of the Products for a purpose not intended or in conjunction with any
other apparatus or material not supplied by Seller to the extent that
such conjoined use causes the alleged infringement. As to any portion
of the Products or use described in the preceding sentence, Seller
assumes no liability whatsoever for patent, copyright, trademark or
trade secrets infringement.
19.3 Seller will not be responsible for any compromise or settlement made
without its written consent. In no event shall Seller indemnify
purchaser for consequential damages.
20 DISPUTE RESOLUTION
------------------
20.1 INTERNAL ESCALATION. In the event that a dispute arises over the
interpretation or application of any provision of this Agreement or
the grounds for termination hereof, any party may request that the
parties meet within ten (10) days of such request and seek to resolve
the dispute by negotiation of the appropriate officers of each party,
with the request for resolution being passed to each officer at the
next higher level of authority, in turn. Such meetings shall be
attended by individuals with decision-making authority, to attempt in
good faith to negotiate a resolution of the dispute prior to pursuing
other available remedies. If, within ten (10) days after the first
such meeting, the parties have not succeeded in negotiating a
resolution of the dispute, or if it has not been possible to schedule
a meeting within ten (10) days following request thereof by a party, a
party may request that such dispute be mediated in accordance with
Subsection 20.2. Notwithstanding anything to the contrary contained in
the foregoing, any disputes with respect to intellectual property
rights shall be submitted to the courts and not subject to the
provisions of Subsection 20.2, unless otherwise agreed by both Buyer
and Seller.
20.2 MEDIATION. If the attempts to resolve a dispute described in
Subsection 20.1 fail, then such dispute will be mediated by a mutually
acceptable mediator to be
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<PAGE>
chosen by Seller and Buyer within twenty (20) days after written
notice by either party demanding mediation. A party may not
unreasonably withhold consent to the selection of a mediator, and
Seller and Buyer shall share the costs of mediation equally. Each
party shall pay its own attorneys' fees. By mutual agreement, however,
Seller and Buyer may postpone mediation until each has completed some
specified but limited discovery regarding the dispute. The parties may
also agree to replace mediation with some other form of alternate
dispute resolution, such as neutral fact-finding or mini-trial.
20.3 ARBITRATION OF DISPUTES. Any controversy or claim arising out of or
relating to this Agreement for the breach hereof which cannot be
settled by the parties pursuant to Section 20.1 and 20.2, shall be
settled by arbitration in accordance with the commercial arbitration
rules of the American Arbitration Association as set forth herein.
20.3.1 SELECTION OF ARBITRATORS. Each party may select one
arbitrator. Selection shall be completed within ten (10) days
of the receipt of a demand for arbitration. If either party
fails to select an arbitrator within such ten (10) day period,
the one selected shall act as sole arbitrator. If two (2)
arbitrators have been selected, the two arbitrators selected
shall select a third within fifteen (15) days after their
selection. If they fail to do so, the third arbitrator shall
be selected by the American Arbitration Association. The
arbitrators shall set a date of hearing no later than sixty
(60) days from the date all arbitrators have been selected and
shall enter a decision within thirty (30) days at the end of
the proceeding
20.3.2 LANGUAGE. All proceedings shall be conducted in the English
language.
20.3.3 LOCATION. The arbitration shall take place at a location to be
agreed upon by the parties. If the parties are unable to
agree, the arbitrators shall select a location in the District
of Columbia or the Counties of Arlington or Fairfax, Virginia
for the arbitration.
20.3.4 FRCP TO APPLY. In any such arbitration proceeding the
arbitrators shall adopt and apply the provisions of the
Federal Rules of Civil Procedure relating to discovery so that
each party shall allow and may obtain discovery of any matter
not privileged which is relevant to the subject matter
involved in the arbitration to the same extent as if such
arbitration were a civil action pending in a United States
District Court; provided, however, that each party shall be
entitled to no more than four (4) depositions upon oral
examination of no more than one (1) day in length each.
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<PAGE>
20.3.5 FINAL AWARD. The award of any arbitration shall be final,
conclusive and binding on the parties hereto.
20.3.6 REMEDY. The arbitrators may award any legal or equitable
remedy. The arbitration award shall include an award of
attorney's fees, in the amount of such fees, to the prevailing
party. Judgment upon any arbitration award may be entered and
enforced in any court of competent jurisdiction.
20.3.7 INJUNCTIVE RELIEF. Either party to an arbitration hereunder
may bring an action for injunctive relief against the other
party if such action is necessary to preserve jurisdiction of
the arbitrators or to maintain status quo pending the
arbitrators decision. Any such action called pursuant to this
paragraph shall be discontinued upon assumption of
jurisdiction by the arbitrators and their opportunity to
consider the request for equitable relief pending final
decision in the arbitration.
20.4 CONTINUE TO PERFORM. The parties shall continue to perform all
obligations under the Agreement pending the above-described dispute
resolution proceedings, subject to full reservation of rights at law
or under this Agreement.
21 NON-EXCLUSIVE AGREEMENT
-----------------------
This Agreement is a nonexclusive agreement. Buyer expressly reserves the
right to contract with others for any of the goods or services it may
require, including those that may duplicate Products.
22 INSURANCE
---------
22.1 SELLER TO MAINTAIN. Seller shall maintain and keep in force all risk
insurance, in form and substance and with insurers reasonably
satisfactory to Buyer, covering all Products delivered to Buyer the
risk of loss to which has not passed to Buyer, and shall furnish
Buyer with proof that such insurance has been obtained and is in
force.
22.2 BUYER TO MAINTAIN. Upon risk of loss passing to Buyer, Buyer shall
maintain and keep in force all risk insurance, in form and substance
and with insurers reasonably satisfactory to Seller, covering all
Products delivered to Buyer the title to which has not passed to
Buyer, and shall furnish Seller with proof that such insurance has
been obtained and is in force. Upon request from Seller, Seller shall
be named a co-insured with respect to the amount of all unpaid
invoices.
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<PAGE>
22.3 LEVEL OF INSURANCE. Seller shall at all times while performing
services on Buyer's premises carry insurance with limits not less
than the limits described as follows:
(a) Employer's General Liability: Limits $1,000,000.
(b) Comprehensive General Public Liability: $1,000,000 single
limit bodily injury and property damage combined; such coverage
shall include a broad form liability rider, completed operations
coverage rider and contractual liability rider.
(c) An umbrella policy: with $1,000,000 single limit bodily
injury and property damage combined.
(d) Workmen's Compensation: maintained at least at the level
required by statute in the states in which Seller is to perform
work under this Agreement.
22.4 CERTIFICATES OF INSURANCE. Each party shall provide the other with
certificates of insurance (i) evidencing the insurance to be carried
under this Article 22, naming the other party as an additional insured
and (ii) including provisions that such insurance policy shall not be
subject to cancellation, expiration or reduction without thirty (30)
days written notice to the other party.
22.5 NO WAIVER. Notwithstanding the requirements as to insurance to be
carried, the insolvency, bankruptcy or failure of any insurance
company carrying insurance for either party, or failure of any such
insurance company to pay claims accruing, shall not be held to waive
any of the provisions of this Agreement or relieve either party from
any obligations under this Agreement.
23 ASSIGNMENT
----------
23.1 CONSENT REQUIRED. Except as otherwise expressly provided in this
Agreement, no party shall have the right to assign its rights or
delegate its duties under this Agreement or any Purchase Order
hereunder, without the prior written consent of the other party
hereto, which consent shall not be unreasonably withheld; provided,
however, that Seller hereby consents to Buyer's assignment of its
rights and delegation of its duties either in whole or in part under
this Agreement or any Purchase Order hereunder to any present or
future Affiliate of such Buyer, provided that Buyer shall guarantee
the payment by, and performance of, any such Affiliate and Buyer shall
give written notice of any such assignment.
23.2 INVALID WITHOUT COMPLIANCE. Any attempted assignment or delegation in
contravention of this Section 23 shall be void and of no effect and
shall be
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<PAGE>
grounds for immediate termination by the non-breaching party,
for cause, as provided in Section 15 hereof.
23.3 ASSIGNS. Subject to the provisions of Section 23.1 above, this
Agreement shall inure to the benefit of and be binding upon the
respective successors and assigns, if any, of the parties hereto.
24 NOTICES
-------
Except as otherwise provided in this Agreement, or applicable Purchase
Order, all notices or other communications hereunder shall be deemed to
have been duly given when made in writing and mailed by certified mail,
return receipt request, facsimile transmission upon confirmation of
receipt, overnight courier or hand delivery to the parties at the addresses
set forth below or at such other addresses as may be designated by the
parties in writing:
To: Seller:
ERICSSON INC.
Triangle Drive Address
Research Triangle Park, NC 27709
Attn: Carlton Peyton
Phone: 919-990-7336
Fax: 919-990-7456
To: Buyer:
Omnipoint Communications, Inc.
Attn: Stephen W. McCrudden
Mountain Lakes Corporate Center
49 Old Bloomfield Rd.
Mountain Lakes, New Jersey 07046
Phone: 201-257-2481
Fax: 201-257-2425
with a copy, which shall not constitute notice, to:
Edwin M. Martin, Jr.
Piper & Marbury L.L.P.
1200 Nineteenth Street, N.W.
Washington, DC 20036
Fax: (202) 223-2085
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<PAGE>
Telephone: (202) 861-3900
25 PUBLICITY
---------
Except with respect to Co-Op Advertising (for which Seller is allowed to
use Buyer's name in accordance with Buyer's guidelines), Seller shall
submit to Buyer and Buyer shall submit to Seller, as the case may be, all
advertising, sales promotion, press releases and other publicity relating
to the subject matter of this Agreement wherein Buyer's or Seller's name or
names (including the names of Affiliates) are mentioned or language, signs,
markings or symbols are used from which the connection of a Buyer's or
Seller's name or names therewith may, in Buyer's or Seller's judgment, as
applicable, be reasonably inferred or implied. Seller or Buyer, as
applicable, shall not publish or use such advertising, sales promotion,
press release or publicity matter without Buyer's Seller's, as applicable,
prior written approval, which approval may be withheld or delayed for any
or no reason.
26 COMPLIANCE WITH LAWS; GOVERNING LAW
-----------------------------------
Each party shall comply with all applicable federal, state and local laws,
regulations and codes, including the procurement of permits and licenses
when needed, in the performance of this Agreement. Each party shall
indemnify the other party against any loss or damage that may be sustained
by reason of such party's failure to comply with such federal, state and
local laws, regulations and codes. This Agreement shall be construed and
enforced in accordance with the laws of the State of New York, without
regard to the conflict of laws of New York or any other state.
27 WAIVERS OF DEFAULT
------------------
Waiver by a party of any default by another party shall not be deemed a
waiver by the non defaulting party of any other default. Failure of a
party to exercise a right or remedy shall not be deemed a waiver of that
right or remedy.
28 AMENDMENTS
----------
No provisions of this Agreement or any Purchase Order shall be deemed
waived, amended or modified by a party, unless such waiver, amendment or
modification is in writing and signed by the authorized representative of
the party against whom it is sought to enforce such waiver, amendment or
modification.
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<PAGE>
29 ORDER OF PRECEDENCE
-------------------
During the Term, Buyer's purchase of Products from Seller shall be deemed
to be purchased under the terms and conditions of this Agreement. The terms
and conditions of Buyer's Purchase Order, Seller's acknowledgments,
invoices or any other writings by either party which differ from the terms
hereunder shall not be effective unless specifically accepted in writing by
amendment to this Agreement made separate and apart from said terms and
conditions and signed by all of the parties to this Agreement.
30 HEADINGS
--------
The section headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Agreement.
31 SEVERABILITY
------------
If any provision or any part of a provision of this Agreement shall be
invalid or unenforceable, such invalidity or unenforceability shall not
invalidate or render unenforceable the entire Agreement, but rather the
entire provision or the Agreement shall be construed as if not containing
the particular invalid or unenforceable provision or provisions, and the
rights and obligations of the parties shall be construed and enforced
accordingly, provided, that the deletion of such provision does not change
the intent of the Agreement.
32 SURVIVAL
--------
The provisions contained in this Agreement that by their sense and context
are intended to survive the cancellation or termination of this Agreement
or any Purchase Order hereunder shall survive such Cancellation and
termination.
33 LICENSE
-------
Except as specifically provided in Section 9 hereof, no licenses, express
or implied, under any patents, copyrights, trademarks or trade secrets are
granted by Buyer or Seller to the other hereunder.
34 PARTY RELATIONSHIP
------------------
It is expressly understood that the parties intend by this Agreement to
establish the relationship of independent contractors. No party shall have
any authority to create or assume in the name of or on behalf of the other
party any obligation, express or implied,
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<PAGE>
*CONFIDENTIAL INFORMATION;
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
nor to act or to purport to act as the agent or legally empowered
representative of the other party hereto for any purpose whatsoever.
35 COUNTERPARTS
------------
This Agreement may be executed in two (2) separate counterparts, each of
which shall be deemed an original and both of which taken together shall
constitute one and the same instrument.
36 ATTACHMENTS AND INCORPORATION
-----------------------------
36.1 INCORPORATION. The following documents attached hereto are
incorporated herein by reference and made a part of this Agreement
with the same force and effect as though set forth in their entirety
herein (such documents together with this Agreement are herein
referred to as the "Agreement").
ATTACHMENT DESCRIPTION
---------- -----------
Attachment A-1 Description of CH337/CF337 (specifications)
Attachment A-2 Description of CH388/CF388 (specifications)
Attachment A-3 Description of CA318 EFR (specifications)
Attachment B Forecasting and Ordering Processes (on an "if required
basis")
Attachment C Dates for Completion of Attachments
Attachment D Prices
Attachment E *
Attachment F (Reserved)
Attachment G *
Attachment H End-user warranty
Attachment I Database Format
Attachment J Advertising Display Material
Attachment K Return Policy
36.2 ORDER OF PRIORITY. In the event of any conflict or inconsistency
among the provisions of this Agreement and the documents attached and
incorporated herein, such conflict or inconsistency shall be resolved,
by giving precedence to this Agreement and thereafter to the
Attachments.
37 ENTIRE AGREEMENT
----------------
This Agreement constitutes the entire agreement between the parties with
respect to the subject matter thereof. All prior agreements,
representations, statements, negotiations, understandings and
undertakings are superseded hereby.
-45-
<PAGE>
In Witness Hereof, the Parties Hereby Execute this Agreement Below.
<TABLE>
<CAPTION>
SELLER: BUYER:
<S> <C>
Ericsson Inc., Omnipoint Communications Inc.,
a Delaware Corporation a Delaware Corporation
By: /s/Anders Torstensson By: /s/George F. Schmitt
------------------------------ -----------------------------------
Name: [Print]Anders Torstensson Name: [Print]George F. Schmitt
------------------------------ ----------------------------------
Title: Executive Vice President Title: President
---------------------------- -------------------------------
</TABLE>
-46-
<PAGE>
ATTACHMENT A-1 TO EXHIBIT 3
<PAGE>
Attachment A-1
Omnipoint Communications Inc./Ericsson Inc.
PCS 1900 SINGLE-MODE HANDSET SPECIFICATIONS - CH-337 / CF337
THE 337 FAMILY OF PHONES
- ------------------------
Ericsson is now selling its first generation PCS 1900 phone, the CH 337, in the
US market. The CH 337 was the first commercially available PCS 1900 phone and
was the first product used to place an official PCS 1900 call. The handset was
also used for American Personal Communication's first commercial call during
their network launch on November 15, 1995. This product is the market leader in
size, weight, talk time and standby time
There will also be a flip version of this phone, the CF 337, with basically the
same functionality as the CH 337 handset
-1-
<PAGE>
1.1. HANDSET GENERAL
- - Flip and non-flip style phones are offered to give a greater sense of physical
differentiation. Changes in feature set, plastic housing color, and
accessories can also be made to drive product derivatives into Basic and
Advanced segments. Minimum volume requirements will vary depending on the
degree and type of customization required .
- - The Ericsson 337 operates in all licensed PCS 1900 bands, A-F.
- - Battery life:
------------
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
CH337 & CF337 550mAh NiMH 600mAh NiMH 1200mAh NiMH
- --------------------------------------------------------------------------------
<S> <C> <C> <C>
Standby with DRX
22 hours 24 hours 48 hours
- --------------------------------------------------------------------------------
Talk Time at
1.0W output
without DTX 140 minutes 160 minutes 300 minutes
- --------------------------------------------------------------------------------
</TABLE>
DRX - Discontinuous Reception, DTX-Discontinuous Transmission
Estimated battery performance for the 337-family of handsets as of 2Q.96.
- - Ericsson handsets are lightweight and compact and have been ergonomically
designed to fit comfortably in the user's hand and against the ear and face.
1.2. SIM
- - All Ericsson PCS 1900 handsets support mini-SIM cards as specified in the
applicable GSM standards.
- - SIM cards are located underneath the battery where they are easily accessible,
but well protected.
-2-
<PAGE>
1.3. KEYPAD
- - Keypad keys are raised, offer tactile response, depress to flush when pressed
and facilitate one-handed operation of the phone.
- - The power up button must be pressed and held in order to power the phone on
or off.
- - All Ericsson PCS 1900 models have a keyguard function. Calls to the emergency
number can be made when the keypad is locked. Answering a call will
automatically unlock the keypad. In addition, flip models offer an extra
degree of keypad protection.
- - All Ericsson PCS 1900 models can insert special characters such as "+" and
pause into numeric dialing strings.
- - Ericsson's MMI does not require a dedicated alpha key.
- - "Yes/YES" (i.e. Send) and "On Hook/No" (i.e. End) keys are color coded green
and red respectively.
- - Keys are backlit to facilitate use in the dark; backlighting is activated
automatically following a key press or incoming call and remains illuminated
20 seconds.
- - Pips are molded into the 5 key and menu keys to facilitate tactile feel and
use.
1.4. DISPLAY
- - The 337 utilizes a 5 x 7 pixel dot matrix LCD with 3 rows of 12 characters.
All icons are displayed in the same 3 by 12 area.
- - The display continuously shows: signal strength, battery status, SMS text
message waiting (if any and supported by the network), voice message waiting
(if any and supported by the network), and network/roaming information.
Diverted call status is displayed during power on cycle and can be checked by
accessing the menu system. Home zone indicators are not currently specified,
but once standards are set, Ericsson intends to comply.
- - Display backlighting is activated automatically following a key press or
incoming call and remains illuminated for 20 seconds.
1.5. RING TONE AND AUDIBLE ALERTS
- - Ring level, pitch and melody are adjustable (8 choices of tones and
melodies).
- - Two short beeps indicate that a voice or SMS message has been received.
- - It is possible to select silent ringing for voice-calling and SM. (In the
silent mode the indicator light and backlight will flash.)
- - A vibrating accessory is planned for release on the US market during 1Q96.
- - Audible tones indicate keystroke confirmation and error alerts.
1.6. VOLUME CONTROLS
- - The 337 utilizes two keys to control earpiece volume.
- - Ringing tone volume controls and silent ringing are provided as a menu
functions.
- - Confidence tones can be turned off while alarm tones will always be
supported.
- - The 337 stores separate settings for loudspeaker and microphone volume
control for use with a handset and with the car kit.
-3-
<PAGE>
1.7. BASIC MMI
- - The 337 uses a unique patent pending user interface. This user friendly
interface is the result o of extensive market research with a broad range of
prospective users. Most of the 337 features are accessible through a multi-
level menu system. The 36 character display shows the user what menu they are
accessing and setting options.
- - Ericsson's MMI is designed to fulfill the needs of experienced cellular users
as well as novice users, that is the MMI is designed to be both easy to use
for quick interactions from a experienced user as well as intuitive for an
inexperienced user. (See items 21 and 23.)
- - Most GSM based features are supported by the SIM card. In most cases these
features can be activated and deactivated, that is hidden or shown, by
settings on the SIM card. Ericsson's objective with the user interface is to
remove unnecessary and unused features in order to reduce the complexity for
the end user.
- - English, French, and Spanish language menus are currently supported.
Language setting is supported by the menu system
1.8. GREETING MESSAGE
- - A greeting message will be displayed on switch-on. This message is generally
stored in the handset and editable by the user. Also, other features, such as
Network Greeting (CPHS feature) have been supported for DCS vendors, where the
handset will read and display the greeting from the SIM. This SIM based
greeting can be presented as an editable or un-editable greeting and it can
also be updated over the air via SMS class 2. Note that Network Greeting may
require unique software and may therefore be volume dependent. Please also
note that Network Greeting may become standardized for PCS 1900 and Ericsson
then intends to support it as basic functionality.
1.9. PIN MANAGEMENT
- - The 337 utilizes several PINs; one that locks the SIM and an additional
"Security Code" that can be used to lock the phone. PINs are also required to
activate or change features like Call Barring.
- - The 337 user has the ability to turn PINs on and off as well as change PINs.
Note the SIM card may be programmed to block the user from changing the SIM's
PIN code.
-4-
<PAGE>
1.10. NETWORK SELECTION
- - When the 337 locates an available network, the identity of the host network
is displayed.
- - The home network will always be sought first.
- - Within the home network coverage area, the availability of other networks
will not show on handset display. However, if the user initiates a search for
alternate networks the phone will show all networks found. These networks may
be classified as Home, Preferred, Ordinary, or Forbidden.
- - When roaming, the handset will display the Preferred PLMN as defined by the
SIM card if a network on the Preferred PLMN List can be found. If no Preferred
PLMN can be found, the handset will display any other, non forbidden, network
it can find. Again, if the user initiates a search, the phone will show all
the available networks as well as the classifications as defined by the SIM
(Preferred, Ordinary, or Forbidden
1.11. SERVICE AND SIGNAL QUALITY INDICATORS
- - The display indicates when the MS is in the signal coverage area and in the
idle updated state by displaying the network identifier.
- - Signal strength indicators cover the signal range in a manner that provides a
useful indication to the user.
1.12. DIALING SEQUENCE
- - Digits on the display are dialed when the "Yes" button is pressed. Digits can
be brought to the display by several methods: manually entering the number,
recalling a number from stored memory, recalling a number from a Short
Message, recalling a number from the last number dialed stack or missed call
stack, and from the scratchpad (entered during the last call). The only
exception is when single digits from 1 - 9 are on the display and "Yes" is
pressed, the number stored in corresponding memory location is dialed.
1.13. EMERGENCY CALLS
- - 911 calls can be made without a SIM and without a PIN.
- - Emergency calls are not prevented by SIM locking where another provider's SIM
is inserted in the phone.
1.14. OUTGOING CALLER ID
- - The 337 supports per-call CLID blocking and unblocking by supporting *67 and
*82 dialing, that is the "star-codes" will be sent to the network as a b-party
number, just as for any POT in a wireline network. In addition, the 337
supports the GSM based features of CLI-P and CLI-R, both with menu interface
and the GSM */# base user interface.
1.15. DTMF TONE SIGNALING
- - Currently the 337 gives the user the option of turning DTMF tone signaling
on or off.
-5-
<PAGE>
1.16. ANSWERING CALLS
- - The backlighting and status indicator flash to indicate ringing in all cases
(i.e. both with audible and silent ringing).
- - Any key answer is supported only when the handset is used with a handsfree
(portable or vehicle) kit.
- - Caller ID or "call in progress" is displayed on screen when a call is
received.
- - If the CLID matches a number stored in the SIM directory the 337 shows the
caller's name and number.
1.17. USER MSISDN
- - MSISDN can be stored by the operator on the SIM over the air (via SMS class
2) and will not be editable by the user, if this is specified in the SIM. If
the SIM card supports it, it is possible to change or enter a new number via
the keypad.
1.18. TOTAL CALL TIME
- - Call duration (from connection) is displayed while the call is in progress and
remains on the display for a short time after the call is completed. Total and
last call time can be checked by accessing the menu system.
1.19. USE OF STORED DIRECTORIES
- - Due to a general lack of memory on the SIM cards, the 337 will store speed-
dial information both on the SIM and in the phone (planned phone book size is
100 entries).
- - When received, short messages are first stored in the phone. When the user
reads the message he/she has the option of deleting the message or saving it
on the SIM.
- - The supplementary service, fixed dialing, is scheduled to be available in the
388 product platform.
- - Memory locations 1 to 9 can be dialed by simply entering the single digit and
pressing the "Yes" button. (All other memory locations can be recalled to the
display and dialed by pressing 'Yes').
- - Speed dial numbers can be recalled to the display by entering the first one
or two letters of the name, as appropriate. Entries can then be scrolled in
alphabetical order.
- - Any number entered or recalled to the display can be stored in the directory
(the handset prompts the user to enter the name and automatically suggests the
next available memory location.)
- - The last 10 dialed numbers and last 10 missed calls are automatically stored
and available for redialing or permanent storage. Also, it is very simple for
the user to dial the last called or the last received number (assuming CLI was
presented) if for any reason the call is interrupted or disconnected.
- - The scratchpad features allows the user to enter a number into the handset
during a call for subsequent storage or dialing.
-6-
<PAGE>
1.20. ADVICE OF CHARGE
- - Advice of charge information is supported and AoC Charging is planned to be
supported during 1996.
1.21. CALL BARRING AND DIVERSION
- - The 337 supports both GSM SS call barring and call diversion through a
standard menu interface as well as the GSM */# codes.(Barring and divert menus
can be suppressed via the SIM, using the customer service profile).
- - As specified by the GSM standard, */#-codes are supported. Additional North
American wireline commands are supported as B-party numbers as long as they
are supported by the wireless switch and more than 2 characters.
- - Call diversion is supported for all conditions; unconditional, busy, off, and
no reply.
1.22. CALL WAITING/HOLD
- - The handset supports call waiting and hold. Typically:
- user will hear alert tone and display will indicate a second call (with
CLI, if applicable)
- user will press 'Yes' to answer second call and 'Yes' to toggle between
callers
- display indicates which caller is live and which is on hold.
- - While a call is in progress, the user is able to put caller on hold and place
a second outgoing call using the 'Yes' key to toggle between the two parties.
The first call can be put on hold by pressing the 'Yes' key (if the display is
clear of numbers), dialing the number and pressing the 'Yes' key to place the
call. Alternatively, the user could enter the number while on the first call,
press 'Yes' to put the first call on hold and place the second call.
1.23. CONFERENCE CALLING
- - Ericsson plans to support conference calling and call transfer by no later
than the introduction of the 388 platform.
1.24. SMS MESSAGE SERVICE
- - Fax and Data are currently supported on all models.
- - When an SMS message arrives the phone beeps twice to alert the user and an
'envelope' icon is displayed. The SMS audible alert can be turned of
completely if the user so desires.
- - When the user receives a message two short beeps are heard and the display
shows "Message, Read?". Pressing "YES" displays the first message. The user
can then erase the message or store it on the SIM.
- - If a phone number is embedded in the SMS message, the user can dial the
number directly by pressing the 'Yes' key.
- - Currently the phone number imbedded in the SMS message must be dialed before
it can be saved in the phone book memory.
- - SMS-MO is supported.
-7-
<PAGE>
1.25. VOICE MAIL ALERT
- - The phone supports SMS voice message notification as specified in the CPHS.
When voice mail is received, the phone emits two short beeps and the indicator
lamp on top of the phone flashes rapidly. A tape recorder icon is also
displayed on the LCD.
- - If the phone number to voice mail is stored on the SIM the LCD will display
"Voice mail, Check?". Pressing the "Yes" key automatically connects the user
to the voice mail system.
1.26. SMS SIM CARD AND HANDSET UPDATE
- - Ericsson currently supports and will continue to support SMS Class 2, SIM
specific messages. This standard is currently used in North America and Europe
for over-the-air programming of SIM cards. When a Class 2 SMS is received it
will not trigger the SMS notification in the phone, i.e. the user will not be
notified that an SMS has been received. Faults or failures will cause specific
error messages to be returned, according to the GSM specification.
1.27. CELL BROADCASTS
- - Certain types or all cell broadcast messages can be rejected via a menu
function.
1.28. HOME ZONES
- - The feature Home Zone is currently not supported by the basic Ericsson
software since there is no standardized feature for the US market (J-STD-007).
Ericsson plans to support standards regarding Home Zone when these are
approved. Ericsson may however be willing to customize software to support
Home Zone before standards are set, this is however volume pending.
1.29. CAR KIT AND OTHER ACCESSORIES
- - Vehicle handsfree install kits and a portable handsfree kits (earpiece and
microphone) are available for all phones (note that these kits do not
typically include the external (car) antenna.
- - Competent users may install car kits; however, Ericsson typically recommends
professional installations.
- - All volume control for the car kit is done through the handset. Separate
control settings are stored for handset and car kit operation.
- - A range of slim, regular and high capacity batteries, mains powered and
vehicle battery powered rapid chargers, PCMCIA modem cards with cables,
carrying cases, clips etc. are available.
1.30. TIME
- - The 337 includes a built in clock which displays the time in 24-hour or AM/PM
format
-8-
<PAGE>
*CONFIDENTIAL INFORMATION;
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
1.31. ABILITY TO ACCEPT ONLY SIMS FROM PARTICULAR OPERATOR, NETWORK OR RESELLER
- - Ericsson currently supports a SIM lock where the phone is locked to a
specific network identity, that is the MCC and the MNC for a specific
operator.
- - Handsets can be pre-locked on delivery from the manufacturer, with minimum
volume commitments or the handsets can be locked by the operator or the user
directly from the keypad (when a SIM with the network identity that the
handset shall be locked to is inserted in the handset).
- - If an incorrect SIM is used, the handset will not allow calls, except for 911
emergency calls.
- - The operator will be provided with a disk containing a list of unlock codes
for each handset.
- - This specific code can be entered by the user or the operator to unlock the
phone.
- - Ericsson plans to comply with the anticipated changes to SIM Lock standards
for the North American market that the N-PAG are currently working with.
PCS 1900 SINGLE-MODE HANDSET SPECIFICATIONS - CF-337
The specifications for the CF-337 are the same as the CH-337 with the following
exceptions:
. The front plastic design includes a flip cover over the keypad.
. The addition of a separate power key.
The package includes:
*
-9-
<PAGE>
ATTACHMENT A-2 TO EXHIBIT 3
<PAGE>
Attachment A-2
Omnipoint Communications Inc./Ericsson Inc.
CH388/CF388 (EFR) HANDSET SPECIFICATIONS
(To be provided by Ericsson)
-1-
<PAGE>
ATTACHMENT A-3 TO EXHIBIT 3
<PAGE>
*CONFIDENTIAL INFORMATION;
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
Attachment A-3
Omnipoint Communications Inc./Ericsson Inc.
PCS 1900 SINGLE-MODE HANDSET SPECIFICATIONS - CA-318
The specifications for the CA-318s are the same as the CH-337 with the following
exceptions:
. Dual Full Rate and Enhanced Full Rate Vocoders
. Enhanced Display
. 9.6 Kbps data rate
The package includes:
*
-1-
<PAGE>
ATTACHMENT B TO EXHIBIT 3
<PAGE>
Attachment B
Omnipoint Communications Inc./Ericsson Inc.
Forecasting and Ordering Processes
(To be developed when needed pursuant to Section 9.10)
-1-
<PAGE>
ATTACHMENT C TO EXHIBIT 3
<PAGE>
*CONFIDENTIAL INFORMATION;
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
Attachment C
Omnipoint Communications Inc./Ericsson Inc.
Dates for Completion of Attachments
Attachment Completion Date
- ---------- ---------------
A-2 *
A-3 *
B *
C *
D *
E *
F *
G *
H *
I *
J *
K *
-1-
<PAGE>
ATTACHMENT D TO EXHIBIT 3
<PAGE>
*CONFIDENTIAL INFORMATION;
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
Attachment D
Omnipoint Communications Inc./Ericsson Inc.
*
-1-
<PAGE>
*CONFIDENTIAL INFORMATION;
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
*
-2-
<PAGE>
*CONFIDENTIAL INFORMATION;
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
*
-3-
<PAGE>
ATTACHMENT E TO EXHIBIT 3
<PAGE>
*CONFIDENTIAL INFORMATION;
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
Attachment E
Omnipoint Communications Inc./Ericsson Inc.
SAMPLE TESTING PROTOCOL
*
-1-
<PAGE>
*CONFIDENTIAL INFORMATION;
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
*
-2-
<PAGE>
*CONFIDENTIAL INFORMATION;
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
*
-3-
<PAGE>
ATTACHMENT F TO EXHIBIT 3
<PAGE>
Attachment F
Omnipoint Communications Inc./Ericsson Inc.
(Reserved)
-1-
<PAGE>
ATTACHMENT G TO EXHIBIT 3
<PAGE>
*CONFIDENTIAL INFORMATION;
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
Attachment G
Omnipoint Communications Inc./Ericsson Inc.
*
-1-
<PAGE>
ATTACHMENT H TO EXHIBIT 3
<PAGE>
Attachment H
Omnipoint Communications Inc./Ericsson Inc.
End-User Warranty
WARRANTY CONDITIONS
Dear Customer,
Should your Ericsson PCS Phone need warranty service, you should send the
Product to any Company Authorized Service facility. For information, either
contact the store from which you purchased the Product, or call 1-800-227-3663
(U.S. only) or 804-845-3663. The Product in all cases must be accompanied by
the following items: Your name, address, telephone number, bill of sales
bearing the serial number, date of delivery, or reasonable proof of these dates,
and a detailed description of the problem.
Our Warranty
This warranty is extended by Ericsson, Inc. ("the Company") to the original
purchaser for use only. Ericsson warrants this product to be free of defects in
material and workmanship at the time of its original purchase and for the
subsequent period of one (1) year.
All accessories excluding batteries for the Product are covered for a period of
one (1) year from the date of purchase. Batteries for handheld units are
covered for a period of ninety (90) days from the date of purchase.
What we will do
If, during the period of Warranty, this product proves defective under normal
use and service due to improper materials or workmanship, the Company will
repair or replace the defective item with a new or factory rebuild replacement.
Conditions
1. In the event the Company repairs or replaces the Product, the repaired or
replaced Product shall be warranted under the limited warranty for the
remainder of the warranty period of the warranted cellular telephone or for
ninety (90) days, whichever is longer. Repair may include the replacement of
parts or components with functionally equivalent reconditioned parts or
components.
2. This warranty does not cover any failure of equipment not supplied by the
Company, nor does it cover failure of the Product due to misuse (including
use in other than the normal and
-1-
<PAGE>
customary manner, neglect, accident, improper installation, repair,
alteration, modification or adjustment). Since the cellular system on which
the Product is to operate is provided by a carrier independent from the
Company, we will not be responsible for the operation, availability coverage,
services or range of that system.
3. Company Product, equipment or parts are often sold, installed and serviced by
independent contractors (service stations) and not by the Company, therefore,
the Company does not warranty in any way the installation, modifications,
maintenance, or service performed by non-Company authorized service stations,
nor does the Company warranty any other equipment subsequently attached
thereto or modifications of normal installation whether done by the service
station or anyone else.
4. THERE ARE NO OTHER EXPRESS WARRANTIES, WHETHER WRITTEN OR ORAL, OTHER THAN
THIS PRINTED LIMITED WARRANTY. ALL IMPLIED WARRANTIES, INCLUDING WITHOUT
LIMITATION THE IMPLIED WARRANTIES OR MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, ARE LIMITED TO THE DURATION OF THIS LIMITED WARRANTY. IN
NO EVENT SHALL THE COMPANY BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES
OF ANY NATURE WHATSOEVER, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR
COMMERCIAL LOSS, TO THE FULL EXTENT THOSE DAMAGES CAN BE DISCLAIMED BY LAW.
Some states do not allow the exclusion or limitation of incidental or
consequential damage, or limitation of the duration of implied warranties,
so the preceding limitations or exclusions may not apply to you. This
warranty gives you specific legal rights, and you may also have other
rights which may vary from state to state.
-2-
<PAGE>
ATTACHMENT I TO EXHIBIT 3
<PAGE>
Attachment I
Omnipoint Communications Inc./Ericsson Inc.
Database Format
(To be supplied by Ericsson Inc.)
-1-
<PAGE>
ATTACHMENT J TO EXHIBIT 3
<PAGE>
Attachment J
Omnipoint Communications Inc./Ericsson Inc.
ADVERTISING DISPLAY MATERIAL
(To be supplied by Ericsson Inc.)
-1-
<PAGE>
ATTACHMENT K TO EXHIBIT 3
<PAGE>
Attachment K
Omnipoint Communications Inc./Ericsson Inc.
RETURN POLICY
Recognizing that product sold to our customers is done so in good faith, the
return of stock is considered contrary to the original purchase terms. However,
at your request, Ericsson Cellular Phones will consider the return of customer's
inventory under certain market conditions. Ericsson will only consider credit
returns if our customer has demonstrated active promotion and proper positioning
of our product.
This agreement is necessitated by the cost prohibitive nature of stock returns
and covers the blanket guidelines for processing a return. As a partner with
Ericsson interested in growing our relationship and respective businesses,
customers are asked to share the cost of this burden.
Note that each request for return must be specifically agreed to by the Ericsson
customer representative and Ericsson management. To obtain approval for a
specific restock return for credit, a customer signed agreement in accordance
with the following return guidelines is required:
. The product must be in current production and direct purchased by customer
within the last 90 days. If product is determined to been purchased from
other suppliers, product will be returned to customer.
. The product must be in new, immediate resoluble condition including original
packaging and master cartons.
. Credit will be applied at the current customer wholesale (market) price less a
10% restocking charge to cover basic handling and restocking.
. A return authorization will be provided by your sales representative. It will
be valid for 30 days from issuance.
. Stock is to be returned to the Ericsson Product Return Center, Industrial
Drive, Richardson, TX.
. No custom products are returnable under this policy.
Credit will be provided to customer's account within thirty (30) days.
-1-
<PAGE>
*CONFIDENTIAL INFORMATION;
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
Exhibit 4
1. Memorandum of Understanding
---------------------------
This Memorandum of Understanding (MOU) is made and entered on the 2nd day
of April, 1996 between
OMNIPOINT CORPORATION, a Delaware corporation having its principal place of
business at 1365 Garden of the Gods Road, Colorado Springs, CO 80907, on
behalf of itself and its subsidiaries and affiliates (collectively,
"Omnipoint")
Orbitel Mobile Communications Ltd which is a manufacturer and supplier of
amongst other things GSM related mobile phones and equipment whose
principle place of business is The Keytech Centre, Ashwood Way,
Basingstoke, Hampshire RG23 8BG, England ("Orbitel")
Sets out the basis upon which "Orbitel" will in general co-operate with
"Omnipoint" to enable the generation of a mutually beneficial Commercial
Agreement for the design, development, manufacture and sale of handportable
terminal equipment incorporating the IS 661 standard.
2. Duration
--------
This MOU, one signed by both parties shall remain in full force and effect
until such time as the parties enter into commercial agreement.
Notwithstanding paragraph 6, if the requirements under paragraph 3.1 for
proceeding to commercial agreement have not been met by 14th June 1996,
this MOU will lapse.
3. Principles of co-operation in the generation and execution of a Commercial
--------------------------------------------------------------------------
Agreement
---------
1. Both parties agree that they will use their reasonable efforts to
finalize a Commercial Agreement as soon as is reasonably possible which
will set out the terms and conditions under which the undertakings
expressed in this MOU will be carried out as are judged at this time.
2. Orbitel should undertake a feasibility study to establish the
appropriate level of chipset and product integration that can take
place, with respect to time, in meeting the commercial needs of the
market place for duel mode IS 661 / PCS 1900 handportable terminals
within North America.
3. Orbitel and Omnipoint shall together undertake a feasibility study to
establish what time scales are technically feasible and commercially
appropriate for the market place with an initial view that dual mode IS
661 products should be targeted to be available * and single mode
IS 661 products. The actual commercial product availability dates
agreed by both parties will be based upon the results of the Feasibility
Study. These dates will be specified in the subsequent Commercial
Agreement.
4. In consideration of a single License fee (to be secured by separate
agreement between Orbitel, Ericsson and Omnipoint) Omnipoint shall grant
to Orbitel, a license to design, develop, manufacture and sell IS 661
based handportable terminals and a license to purchase from
Omnipoint * certain ASICs containing Omnipoint Technology.
Orbitel and Omnipoint agree
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<PAGE>
*CONFIDENTIAL INFORMATION;
HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION
5. Orbitel shall undertake a primary role in the following areas:
a) Investigation, definition and productionization in agreement with
Omnipoint of a preferred solution for a single mode IS 661 chipset.
Specific responsibilities for these activities to be mutually agreed by
Orbitel/Omnipoint.
b) Investigation and development with Omnipoint to combine Omnipoint's
IS 661 technology with an Orbitel developed or acquired PCS 1900
technology to produce a "partially integrated" dual mode chipset
solution.
c) Development with Omnipoint of a new "fully integrated" dual mode
solution by working with some of the current chipset suppliers of
Orbitel, Ericsson and Omnipoint, as well as other chipset suppliers
that can provide innovative solutions.
6. Orbitel shall undertake the design, development, manufacture and sale
of IS 661 based handportable terminals, which will include a dual mode
IS 661 / PCS 1900 handportable phone. Such terminals should include
facilities for data and fax capabilities to an agreed specification and
ancillary equipment such as chargers, as well as difference battery
types.
7. Dual mode IS 661 /PCS 1900 handportable phones supplied by Orbitel
shall at least meet a specification to be agreed between Omnipoint and
Orbitel. The intent of this specification will be products re are
judged to be market competitive with respect to price, size, weigh,
function when compared against other dual mode phones that have a
similar complexity, similar volume and available within a similar time
frame.
8. Orbitel shall use its knowledge to introduce and attempt to represent
the use of IS 661 as a standard within the European Telecommunications
Standards Institute, "ERSI" and other mutually agreed standards bodies,
with the assistance of Omnipoint.
9. Orbitel shall endeavour to promote the acceptance of IS 661 based
systems outside of the U.S.
10. Orbitel should endeavour to identify and appoint an independent sales
and distribution partner with North America for the IS 661 based
handportable terminals and shall contribute to an agreed level towards
promotional activities. Omnipoint will offer reasonable assistance in
the introduction and support of potential partners in North America.
11. *
12. Orbitel shall work with Omnipoint in the optimization of IS 661 and/or
the products/systems for new applications (e.g. RLL, Low tier, Home
BTS).
13. Orbitel will further investigate with Omnipoint the opportunities for
the supply of Data Services, including the provision of OEM agreements,
Data Terminal Adaptors and associated support software.
14. Orbitel wishes to undertake an investigation into other applications
for the IS 661 technology including wireless data and wireless in the
local loop with the intent of achieving a product and technology route
map over time for both terminal and infrastructure equipment, which may
require Orbitel to agree to an additional license for further use of
Omnipoint's technology.
15. Orbitel shall make the IS 661 mobile terminals available on an OEM
basis, subject to suitable, commercial arrangements.
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<PAGE>
16. Chose of ASIC vendors to be made jointly by mutual agreement - such
agreement not to be unreasonably withheld by either party.
4. Documentation
-------------
It is expected that this relationship will be embodied in four agreements:
1. A Supply Agreement pursuant to which Orbitel will sell mobile terminals
to Omnipoint Communications, Inc.
2.1. A Statement of work defining the scope of the project(s) and the roles
and responsibilities of both parties.
2.2. If deemed necessary by both parties, a Collaborative Development
Agreement, pursuant to which Omnipoint and Orbitel will pursue the
development projects set forth therein; such Agreement to govern the
rights to joint inventions, if any.
3. An ASIC Supply Agreement pursuant to which Omnipoint will sell ASIC
stock Orbitel to incorporate in mobile terminals if and as required.
4. A Dual Mode Chipset License and/or OEM Agreement pursuant to which
Orbitel will have manufactured and shall sell dual mode chipsets to
Omnipoint or license Omnipoint to make such dual mode chipsets or
provide for Omnipoint to purchase chipsets directly from chipset
supplier.
5. Confidentiality
---------------
(a) Prior to this MOU and hereafter, it has been and will continue to be
necessary for the parties to exchange certain information, data and
material of a proprietary or confidential nature whether relating to
technical, financial or commercial information ("Confidential
Information). All Confidential Information will be received and
retained in the strictest confidence by the recipient, and will not be
disclosed to third parties without the written consent of the
disclosing party and the use thereof will be solely for the purpose
for which it was provided. Each party including its employees, sub-
contractors and other personnel acting under the control of a party,
receiving Confidential Information will treat each item of the
Confidential Information as confidential during a period of 5 years
from the date of receipt.
This confidentiality is also reflected in the mutual non-disclosure
agreement already signed between Omnipoint and Orbitel on 20th day
July 1995.
(b) No release of information relating to this MOU or matters hereto will
be made to the media or any third party without the agreement of both
parties.
6. Binding Obligations
-------------------
Neither party will have any obligation or liability to the other arising
from this MOU with the exception of their confidentiality obligations
contained in Paragraph 5 hereof.
/s/ R.N. /s/ George F. Schmitt
- ----------------------------- ---------------------------
Signed for and on behalf of Signed for and on behalf of
Orbitel Mobile Communications Omnipoint Corporation
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