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EXHIBIT 10.11
TECHNOLOGY LICENSE, MANUFACTURING AND PURCHASE AGREEMENT
THIS TECHNOLOGY LICENSE, MANUFACTURING AND PURCHASE AGREEMENT, (the
"Agreement") is entered Into as of the 13th day of October, 1999, (the
"Effective Date") by and between METRICOM, INC., a Delaware corporation, with
its principal offices at 980 University Avenue, Los Gatos, California 95030-2375
("Metricom") and NOVATEL WIRELESS, INC., a Delaware corporation, with its
principal offices at 9360 Towne Centre, Suite 110, San Diego, CA 92121
("Novatel").
WHEREAS, Metricom has developed a Network; and
WHEREAS, the parties desire to enter into an agreement regarding
Metricom's Network whereby Novatel will develop Network interoperable and
compatible Modem as a product; and
WHEREAS, Novatel wishes to obtain from Metricom a technology license to
use Metricom's technology and incorporate the Licensed Technology into a Modem;
and
WHEREAS, Metricom is prepared to grant such a license upon the
terms and conditions of this Agreement; and
WHEREAS, the parties now desire to enter into an agreement whereby
Novatel will manufacture the Modem; and
WHEREAS, Novatel wishes to supply such Modem to the general marketplace,
Metricom's Designee(s) or Metricom; and
WHEREAS, Metricom wishes Novatel to supply Modems built to the
Specifications to Metricom's Designee(s) or Metricom.
NOW THEREFORE, in consideration of the foregoing and the covenants and
premises contained in this Agreement, the parties agree as follows:
PART I: DEFINITIONS
1. DEFINITIONS. As used herein, capitalized terms will have the meanings
set forth below.
1.1 "ACCEPTANCE CERTIFICATE" means a document issued by Metricom
confirming that a Modem shipment meets all applicable Specifications.
1.2 "CONFIDENTIAL INFORMATION" means any confidential or
proprietary information, including without limitation any source code, software
tools, designs, schematics, plans or any other information relating to any
research project, work in process, future development, scientific, engineering,
manufacturing, marketing or business plan or financial or personnel matter
relating to either party, its present or future products, sales, customers,
employees, investors or business, identified by the disclosing party as
Confidential Information, whether in oral, written, graphic or electronic form.
If disclosed in oral form, such Confidential
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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Information must be reduced to writing and marked as Confidential Information
within 30 days following disclosure.
1.3 "DESIGNEE" means a Metricom partner approved, in writing, by
Metricom.
1.4 "EFFECTIVE DATE" means the date first mentioned above.
1.5 "FCC" means the Federal Communications Commission.
1.6 "LICENSED TECHNOLOGY" means the Metricom Know-how, Metricom
Patents, Metricom Technology, Metricom Improvements and the Specifications.
1.7 "METRICOM KNOW-HOW" means techniques, inventions, practices,
methods, knowledge, skill, experience, test data and cost, sales and
manufacturing data relating to the manufacture of the Modem which Metricom
discloses to Novatel under this Agreement, including without limitation any
technology developed by either party on behalf of Metricom.
1.8 "METRICOM PATENTS" means the existing patents and patent
applications listed on Exhibit B hereto and such patents obtained and patent
applications filed by Metricom relating to the patents listed on Exhibit B, and
improvements thereto, including without limitation, all foreign counterparts,
all substitutions, extensions, reissues, renewals, divisions, continuations and
continuations in part relating to such Metricom Patents and their foreign
counterparts.
1.9 "METRICOM SOFTWARE" means certain software developed by
Metricom and embedded in the Modem, and such additional or modified software
features and functions that Metricom may specify from time to time pursuant to
this Agreement.
1.10 "METRICOM SPECIFICATIONS" means the performance, usage and
form factor specifications written by Metricom to which the Guaranteed Volume of
Modems will conform. Such Metricom Specifications shall be attached as Exhibit D
hereto upon completion of development of such Metricom Specifications, which
shall not be later than thirty (30) days from the execution of this Agreement.
1.11 "METRICOM TECHNOLOGY" means (a) the inventions, discoveries
and processes covered under the Metricom Patents and (b) the Metricom Know-how.
1.12 "MODEM" means a portable 900 MHz-enabled data device
interoperable and compatible with Metricom's Ricochet2 data network to be custom
developed and manufactured by Novatel.
1.13 "NETWORK" means Metricom's Ricochet network.
1.14 "NETWORK SPECIFICATIONS" means the software, firmware and
hardware performance and usage specifications for the Network as written by
Metricom with which the Modem must be interoperable and compatible. Such Network
Specifications shall be attached as Exhibit C hereto within thirty (30) days
from the execution of this Agreement.
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1.15 "NOVATEL KNOW-HOW" means techniques, inventions, practices,
methods, knowledge, skill, experience, test data and cost, sales and
manufacturing data relating to those parts that may be specified for inclusion
in the Modem as set forth in Exhibit A.
1.16 "NOVATEL PATENTS" means the existing patents and patent
applications listed on Exhibit B hereto and such patents obtained and patent
applications filed by Novatel relating to the patents listed on Exhibit A, and
improvements thereto, including without limitation, all foreign counterparts,
all substitutions, extensions, reissues, renewals, divisions, continuations and
continuations in part relating to such Novatel Patents and their foreign
counterparts.
1.17 "NOVATEL TECHNOLOGY" means the inventions, discoveries and
processes relating to those parts that may be specified for inclusion in the
Modem as set forth in Exhibit A.
1.18 "NRE COSTS" means foundry, non-recurring engineering and
development costs associated with this Agreement.
1.19 "SPECIFICATIONS" means the Network Specifications and the
Metricom Specifications.
1.20 "ROYALTIES" means those royalties payable by Novatel to
Metricom pursuant to this Agreement.
1.21 "THIRD PARTY SOFTWARE" means any software that belongs to a
third party which is used in the Network and is licensed to Metricom for such
use.
PART II: TECHNOLOGY LICENSE, DEVELOPMENT AND MANUFACTURING
2. LICENSE GRANTS.
2.1 METRICOM LICENSE GRANT.
(a) TECHNOLOGY LICENSE. Subject to the terms and
conditions of this Agreement, Metricom hereby grants to Novatel during the term
of this Agreement a nonexclusive, non-transferable, royalty bearing license,
without right to sublicense, under the Licensed Technology, to develop,
manufacture, market and sell the Modem for use with the Network.
(b) METRICOM SOFTWARE LICENSE. During the term of this
Agreement and subject to the terms and conditions of this Agreement, Metricom
grants to Novatel a nonexclusive, non-transferable license, without right to
sublicense, to reproduce and embed the Metricom Software in object code form
only in the Modem. Except as expressly stated in this Agreement, no rights to
prepare derivative works, perform, display or distribute the Metricom Software
are granted hereunder.
(c) SOURCE CODE. Should Novatel require it and subject to
the terms and conditions of this Agreement, Metricom may disclose to Novatel the
source code for the Metricom Software for purposes of enabling Novatel to port
the Metricom Software to the
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Modem. Any disclosure of source code, and all notes made by Novatel pertaining
thereto, shall be treated as Metricom's Confidential Information pursuant to the
terms of this Agreement.
(i) Novatel shall not make any changes to the
source code other than those changes necessary to run the Metricom Software on
hardware platforms other than as originally developed. Novatel shall provide
Metricom with an electronic copy (ASCII text) of the updated source code in the
event it makes any changes.
(ii) Except as needed to port the Metricom
Software as set forth in this Agreement. No copyright rights to reproduce,
prepare derivative works, perform, display or distribute the Metricom Software
in source code format are granted to Novatel hereunder.
(d) RESTRICTIONS ON USE. Novatel shall not, and shall not
permit any person within its control, to use the Licensed Technology and the
Metricom Software or any of Metricom's Confidential Information for any other
purpose than as expressly set forth in this Agreement.
2.2 NOVATEL LICENSE GRANT. Subject to the terms and conditions of
this Agreement, Novatel hereby grants Metricom a non-exclusive, non-
transferable, royalty-free, perpetual and irrevocable right, with right of
sublicense through multiple tiers of distribution, under the Novatel Patents,
the Novatel Technology, the Novatel Know-how and the Novatel Improvements, to
offer to sell, sell and use the Modems.
2.3 THIRD PARTY SOFTWARE. Should the Metricom Software contain
Third Party Software, Metricom shall, at Novatel's request, assist Novatel in
obtaining the rights to use such Third Party Software. The parties acknowledge
and agree that it is Novatel's obligation to license such Third Party Software.
3. DEVELOPMENT AND MANUFACTURING.
3.1 DEVELOPMENT. Upon execution of this Agreement, Novatel shall
begin development of the Modem in accordance with the Network Specifications and
the terms of this Agreement, and for the Guaranteed Volume, also in accordance
with the Metricom Specifications. Prior to manufacturing, Novatel shall provide
a reasonable quantity of a prototype Modem along with an electronic copy (ASCII
text) of the software source code including release notes to Metricom for
acceptance testing. Novatel shall not commence manufacturing prior to Metricom's
written acceptance of the prototype Modem.
3.2 MANUFACTURING. Novatel shall custom-manufacture, assemble,
test, label, package (includes plastic or other material housing including
retail packaging with approved use of Ricochet brand) and deliver the Modem in
accordance with the Network Specifications and the terms of this Agreement, and,
for the Guaranteed Volume, also in accordance with the Metricom Specifications.
3.3 MARKET AND USE. For the consideration described in this
Agreement, the parties acknowledge and agree that Novatel shall sell the Modems
only for use on the Network.
3.4 NRE COSTS. ***
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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3.5 REGULATORY AGENCY APPROVAL. Novatel shall be responsible for
obtaining any regulatory agency approval, including, but not limited to, FCC
approval, for the Modem. Metricom shall, at Novatel's request and expense,
assist Novatel in obtaining FCC approval.
3.6 MODIFICATIONS REQUESTED BY METRICOM. During the term hereof,
changes to Metricom's Know-how, government regulations (including FCC Part 15
regulations), or other masons may require changes to the Network Specifications
and/or the Metricom Specifications and therefore the Modem.
(a) Metricom shall, from time to time, provide Metricom
Software updates to Novatel. Novatel shall incorporate such changes into the
Modem software and make it available to Level I Technical Support providers
within (i) fourteen (14) days of receipt of such update for critical changes;
and (ii) thirty (30) days of receipt of such update for non-critical changes.
Novatel's changes shall be subject to acceptance testing by Metricom.
(b) In the event Metricom requests an engineering change
to a Guaranteed Volume Modem, Novatel shall notify Metricom in writing of any
impact on the cost and/or scheduled delivery of such Modem within ten (10)
business days of the receipt of Metricom's written change request. This should
include, but not be limited to, a costed bill of materials, scheduled delivery,
and any additional NRE.
(c) Upon receipt by Metricom of such estimate, the parties
shall agree in writing to which such engineering changes shall be made as well
as adjustments, if any, in pricing and delivery schedules and the parties shall
agree in writing upon any such engineering changes prior to their
implementation.
3.7 MODIFICATIONS BY NOVATEL. Novatel may make changes to the
Modem without Metricom's prior written consent; provided, however, that (i) the
Modem shall continue to meet the specifications of the Network, and the terms of
this Agreement and, for the Guaranteed Volume, also meet the Metricom
Specifications; (ii) Metricom receives an electronic copy (ASCII text) of the
modified source code and any related release notes and documentation and
approves such modifications prior to release to end-users; and (iii) is subject
to acceptance testing by Metricom. Novatel may make changes in design,
components or materials that may have the effect of reducing the cost of
production of the Modem or increase reliability or improve performance or expand
procurement options.
3.8 UPDATE MECHANISM. Novatel shall provide a mechanism by which
an end-user can update the software in their Modem and shall make it available
to Level I Technical Support providers at the same time it makes the Modem
software, including any updates, available.
3.9 FUTURE DEVELOPMENTS. The parties envision that Novatel may
develop, custom manufacture, and deliver to the marketplace, Metricom's
Designee(s) or Metricom future generations of the Modems and/or replacement
products, subject to satisfactory performance under this Agreement and future
technical and market conditions.
3.10 UNIT IDENTIFICATION AND SERIAL NUMBERS. Metricom shall
supply Novatel within a range of individual unit identification and serial
numbers to be applied to units of the
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Modem. Novatel shall incorporate in all Modems and any accompanying
documentation therefor one of the individual Metricom-assigned unit
identification and serial numbers for each such Modem. Such unit identification
and serial number shall be clearly marked and visible externally on each Modem
and encoded in the Metricom Software embedded in each Modem. Novatel shall
provide Metricom with the unit identification and serial number of each Modem it
sells, leases or otherwise puts into use at the time of shipment.
3.11 DEVELOPMENT SCHEDULE. Total time between execution of this
Agreement and when the first shipment of the Guaranteed Volume shall be made is
*** for development with the first delivery suitable for distribution to
end-users to occur *** after receipt of both Metricom's and the FCC's approval.
3.12 TESTING. Novatel shall test all Modem deliveries prior to
shipment to confirm conformance with the Network Specifications and the terms of
the Agreement, and additionally, for the Guaranteed Volume, the Metricom
Specifications. Prior to implementation of such testing, Novatel shall submit to
Metricom, and Metricom shall have final approval of, the interoperability and
compatibility test plans. Upon request, Novatel shall provide test data to
Metricom.
3.13 SUPPORT. Except as provided for in Section 8 of this
Agreement, Novatel shall provide for Levels I, II and III Technical Support as
set forth in Exhibit I attached hereto for Modems which it sells, leases or
otherwise puts into use.
4. OWNERSHIP AND INTELLECTUAL PROPERTY.
4.1 OWNERSHIP.
(a) Novatel acknowledges and agrees that Metricom
is and shall remain the sole owner of the Metricom Technology, the Metricom
Patents, the Metricom Know-how, the Specifications and the Metricom Software and
any improvements to the Metricom Patents, the Metricom Know-how, the Metricom
Technology, Specifications and Metricom Software (the "Metricom Improvements")
and that Novatel has no rights in or to the Metricom Technology, the Metricom
Patents, the Metricom Know-how, the Specifications or the Metricom Software and
any Metricom Improvements other than the license rights specifically granted
herein.
(b) Metricom acknowledges and agrees that Novatel
is and shall remain the sole owner of the Novatel Technology, Novatel Patents
and Novatel Know-how and any improvements to the Novatel Technology, Novatel
Patents and Novatel Know-how (the "Novatel Improvements") and that Metricom has
no rights in or to the Novatel Technology, Novatel Patents and Novatel Know-how
and any Novatel Improvements other than the license rights specifically granted
herein.
4.2 FUTURE INVENTIONS AND JOINT INVENTIONS. Each party
acknowledges and agrees that any and all discoveries, know-how, inventions,
methods, ideas and the like ("Inventions") made or discovered pursuant to this
Agreement solely by its employees, agents or subcontractors shall be owned
solely by such party and that any and all Inventions made jointly by employees,
agents or subcontractors of each shall be jointly owned (the "Joint
Inventions"),
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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all as determined in accordance with U.S. laws of inventorship. Notwithstanding
the foregoing, the parties agree that any Inventions made by employees, agents
or subcontractors of either party that result in Metricom Improvements shall be
owned solely by Metricom and licensed to Novatel pursuant to this Agreement.
Novatel shall assign any rights it may obtain in or to such Metricom
Improvements and any patents it obtains for such Metricom Improvements to
Metricom when such Metricom Improvements are first fixed in a tangible medium or
reduced to practice, as applicable. Joint Inventions shall be treated as
Confidential Information of each party.
4.3 PROPRIETARY RIGHTS NOTICES. Each unit of the Modem and any
accompanying documentation shall include all copyright and proprietary legends
provided to Novatel by Metricom.
5. TRADEMARKS.
5.1 Metricom hereby grants Novatel the right to use, and requires
Novatel to place on the Modems and on the packaging for Modems during the term
of this Agreement, the Metricom trademarks and trade names set forth in Exhibit
G hereto (the "Marks") solely to affix the Marks to the Modems in accordance
with the Metricom Corporate Style Guide attached hereto as Exhibit H, the
Network Specifications, and, for the Guaranteed Volume, the Metricom
Specifications or other Metricom requirements. Metricom may alter or replace
such Marks or may revise its policies and guidelines related thereto in its sole
discretion upon ninety (90) day's prior written notice to Novatel. Novatel
hereby admits and recognizes Metricom's exclusive worldwide ownership of such
Marks and the renown of Metricom's Marks. Novatel agrees not to take any action
inconsistent with such ownership and further agrees to take any action, at
Metricom's reasonable expense, including without limitation the conduct of legal
proceedings, which Metricom deems necessary to establish and preserve Metricom's
rights in and to its Marks. Reproductions of Metricom's Mark's, logos, symbols,
etc., shall be true reproductions and done photographically.
6. ROYALTY. Novatel shall pay Metricom *** on all Modems manufactured
and sold, leased or otherwise put into use by Novatel. ***
6.1 ***
6.2 ***
6.3 ***
(a) ***
(b) ***
(c) ALL PAYMENTS DUE BY NOVATEL SHALL BE MADE TO METRICOM
WITHOUT ANY DEDUCTIONS FOR TAXES, DUTIES, FEES OR CHARGES OF ANY KIND.
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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6.4 INSPECTION OF ROYALTY RECORDS.
(a) Novatel shall maintain appropriate books of
account and record, in accordance with generally accepted U.S. accounting
principles, which shall include inventory records, and shall make accurate
entries concerning all transactions relevant to this Agreement (the "Records").
(b) Metricom shall have the right during the term
and for six (6) years thereafter (or in the event of a dispute during the Term
or within five years thereafter involving in any way the Records, until the
dispute is resolved, whichever is later), on reasonable notice to Novatel to
inspect, examine, take extracts and make copies from Novatel's Records to the
extent necessary to verify the ROYALTY and payments made under this Agreement.
(c) If, upon inspection of the Records of
Novatel, Metricom discovers that it did not receive the correct AMOUNT OF
ROYALTIES PAYABLE UNDER THIS AGREEMENT, Metricom shall notify Novatel of such
discovery. In the event Novatel disagrees with such discovery, the parties
shall, acting reasonably and in good faith, work together to resolve such
dispute. Within ten (10) days of receipt of Metricom's notice or, in the case of
dispute within ten (10) days of resolution of such dispute, Novatel shall pay to
Metricom the difference between what was paid and what should have been paid. If
the difference exceeds *** of the amount found by Metricom, then Novatel shall
bear Metricom's reasonable costs in connection with such Inspection, including
all reasonable legal and auditors' fees.
6.5 OBLIGATION TO PAY. ***
PART III: SUPPLY TO AND PURCHASE OF MODEMS BY METRICOM
7. MODEM PURCHASES.
7.1 GUARANTEED VOLUME. Metricom agrees to purchase at least ***
Modems (the "Guaranteed Volume") during the Term of this Agreement. The
Guaranteed Volume may be purchased by either Metricom or its Designee(s). The
Guaranteed Volume shall conform to the Specifications.
7.2 PILOT TEST. Upon completion of Modem development and
Metricom's written acceptance of a prototype Modem that conforms to the
Specifications, approximately *** from execution of this Agreement, Novatel
shall manufacture and deliver *** Modems, which shall be deducted from
Metricom's initial delivery, to Metricom for use in conducting end-user testing
and soliciting feedback relative to the Modem ("Pilot Test").
(a) Metricom shall perform one (1) week of testing at its
facilities to ensure interoperability and compatibility with the Network.
(b) Thereafter, Metricom shall identify and supply
qualified end-users with Modems to conduct Pilot Testing for a period of thirty
(30) days.
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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(c) If any necessary changes may be handled in the
firmware or installation software then manufacturing of the Modems may continue
provided that patches for the necessary changes can be effected as part of the
manufacturing process.
7.3 FORECAST. Metricom shall submit a one-year forecast to
Novatel, attached hereto as Exhibit E. The forecast for the first three months
of shipments shall be given to Novatel at least sixty (60) days in advance of
the scheduled delivery date and shall be considered fixed at sixty (60) days
prior to the delivery date. Thereafter, changes to the forecast for the
remaining months may be made in writing as set forth below, provided, however,
that Metricom shall have the right to forecast for the entire volume guaranteed
within the first six months of shipment by providing seven (7) months advance
notice.
<TABLE>
<CAPTION>
NUMBER OF DAYS PERCENT OF CHANGE TO
ADVANCE WRITTEN NOTICE FORECASTED VOLUME
---------------------- --------------------
<S> <C>
*** ***
*** ***
*** ***
*** ***
</TABLE>
7.4 PURCHASE ORDERS.
(a) Metricom or its Designee(s) agrees to provide Novatel
with binding purchase orders. All purchase orders are binding, and cannot be
cancelled or rescheduled except as set forth In the Agreement. Purchase orders
shall set forth the quantity of Modems ordered, the destination of delivery and
the delivery date required.
(b) Should a Metricom Designee(s) place the purchase
order, Novatel shall ship and bill directly to the Metricom Designee(s). During
the term of this Agreement, unless mutually agreed to by Novatel, Metricom and
the Metricom Designee(s), the terms and conditions of this Agreement shall
govern all Metricom Designee(s) purchase orders. Metricom shall inform its
Designee(s) of the terms of this Agreement.
(c) Any terms or conditions in any purchase order, sales
acknowledgment or receipt that is different from, inconsistent with or
additional to the terms and conditions of this Agreement that are not expressly
accepted by the other party in writing are void, of no effect, and am hereby
rejected by the parties.
7.5 DELIVERY. Novatel shall deliver the Guaranteed Volume of
Modems to Metricom or it's Designee(s), in accordance with the Specifications,
the applicable purchase order and the delivery schedule set forth in Exhibit E,
as may be modified from time to time in accordance with this Agreement, to the
location specified in the applicable purchase order provided, however, that:
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(a) no deliveries shall occur until Metricom has approved
in writing the Modem's compliance with the Specifications and issued an initial
Acceptance Certificate; and
(b) all future deliveries shall also be subject to
acceptance testing by Metricom or its Designee(s) as set forth in this
Agreement.
Title and risk of loss shall pass to Metricom upon Metricom's acceptance of the
Modem shipments. Time is of the essence for all deliveries. Novatel will provide
Metricom or its Designee(s) documentation on all known errors or unresolved
product issues at the time of delivery.
7.6 ACCEPTANCE TEST PROCEDURES. Novatel shall inspect and test
all Guaranteed Volume Modem deliveries prior to shipment to confirm conformance
with the Specifications. Following receipt of delivery of a Modem shipment,
Metricom or its Designee(s), as specified in the applicable purchase order, may
inspect such shipment for conformance with the Specifications.
(a) Upon determination that a shipment does meet
Specifications, Metricom will issue an Acceptance Certificate for such shipment.
Such Acceptance Certificate does not imply acceptance of any other shipment nor
waive the warranty provisions under this Agreement or any other remedy that
Metricom may have for a defective shipment.
(b) In the event that a shipment is rejected for failure
to meet Specifications, Metricom or its Designee(s) shall return the shipment at
Novatels expense and provide Novatel with written notification of the shipment's
nonconformity. Novatel shall undertake to repair or replace the shipment or any
nonconforming portion thereof at no charge to Metricom. or its Designee(s) and
resubmit the shipment to Metricom or its Designee(s) within five (5) days of
receipt of the rejected shipment.
8. MODEM SUPPORT.
8.1 TECHNICAL SUPPORT TRAINING AND DOCUMENTATION. Novatel shall
provide training and documentation for the Modem to service technicians and
engineering support at Metricom and its Designee(s) which shall be sufficient to
allow Metricom or its Designee(s) to provide Level I Technical Support with
reasonable product knowledge and troubleshooting skills. Training shall include,
but not be limited to, general use, support, troubleshooting, functionality,
operation, interoperability and compatibility of the Modem that is developed and
purchased under this Agreement. In addition, all support related documentation,
troubleshooting tools and materials, test equipment, training materials, notes,
frequently asked questions ("FAQ's"), and web based support materials shall be
made available to Metricom or its Designee(s) for their use in supporting the
Modem. In the event any product changes result in new functionality or change in
operation and compatibility, Novatel shall provide additional training to
Metricom and its Designee(s).
8.2 SUPPORT LEVELS. Level I, Level II and Level III Technical
Support shall be defined in Exhibit I of this Agreement.
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8.3 METRICOM SUPPORT OBLIGATIONS.
(a) Metricom or its Designee(s) shall, in a diligent
manner consistent with industry practices, provide Level I Technical Support to
their direct end-user(s) for Modems which Metricom or its Designees have
purchased under the terms of this Agreement.
(b) If Metricom or its Designee is unable to resolve the
question or issues to Customer's satisfaction, Metricom or its Designee shall
forward the request to Novatel Level II Technical Support for further
investigation and resolution.
(c) Upon approval from Novatel, Metricom or its
Designee(s) may refer a Customer directly to Novatel for Level II and Level III
Technical Support.
8.4 NOVATEL SUPPORT OBLIGATIONS.
(a) Novatel support and engineering staff shall provide
Level II and Level III Technical Support directly to Metricom or its Designee(s)
by telephone via a toll free number twenty-four (24) hours a day, seven (7) days
a week for Moderns which Metricom or its Designees have purchased under the
terms of this Agreement. Upon approval from Novatel, Metricom or its Designee(s)
may refer a Customer directly to Novatel for Level II and Level III Technical
Support.
(b) Level II Technical Support issues that remain
unresolved longer than *** after notification of the problem or issues flagged
as sensitive or mission critical, shall be escalated to Level III Technical
Support for final resolution.
(c) Novatel shall provide written explanation to Metricom
or its Designee of the problem, known symptoms, possible causes, and expected
time for resolution for any Level III Support issue that remains unresolved
longer than *** after escalation to Level III Support.
(d) Novatel shall provide Metricom or its Designee(s)
documentation on all known errors or unresolved product issues (i) at the time
of delivery; and (ii) as discovered by Novatel's Level III Support staff after
the initial launch of the Modem.
9. PRICE AND PAYMENT.
9.1 PRICE. Metricom shall pay Novatel *** set forth in Exhibit F
attached hereto.
9.2 DELIVERY. Novatel shall deliver all Modems to Metricom or any
other location Metricom or its Designee(s) shall designate FOB Buyer's Dock.
Novatel shall prepay the freight charges and bill such freight charges to
Metricom for reimbursement by Metricom. Title and risk of loss shall pass to
Metricom upon Metricom's or its Designee(s)'s acceptance of the Modem shipments
as evidenced by an Acceptance Certificate. Metricom or its Designee(s) shall
assume all freight charges which result from expedited shipment dates requested
by Metricom or its Designee(s). The parties acknowledge and agree that time is
of the essence for all deliveries.
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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9.3 PAYMENT.
(a) All payments for Modems purchased by Metricom under
this Agreement shall be due and payable thirty (30) clays following receipt of
valid invoice.
(b) Should Metricom issue the purchase order, invoices
shall accompany applicable Modem shipments or, if the Modem shipments are to be
made to a location other than Metricom's Los Gatos facilities, then such invoice
shall be sent to the Los Gatos facility at the same time the shipment is made to
the alternate destination.
(c) Should a Metricom Designee(s) issue the purchase
order, invoices shall accompany the applicable Modem shipment or, if the Modem
shipments are made to a location other than the billing address, then
such-invoice shall be sent to the Metricom Designee(s)'s billing address at the
same time the shipment is made to the alternate destination.
(d) The parties acknowledge and agree that Metricom shall
have no obligation, financial or otherwise, for purchase orders made by a
Metricom Designee(s).
9.4 TAX. Novatel shall separately state on the invoices delivered
to Metricom all taxes applicable to sale of the Modems to Metricom, excluding
any taxes based on the net income of Novatel. Metricom shall pay Novatel any
such properly invoiced and applicable amounts and Novatel shall pay the relevant
taxing authorities any such amounts when due. Novatel hereby indemnifies and
holds Metricom harmless from and against any and all liabilities, penalties, and
amounts due regarding any taxes or fees due to the applicable government not
properly or timely invoiced or paid by Novatel which was the responsibility of
Novatel.
9.5 FREIGHT. Novatel shall separately stale on the invoices
delivered to Metricom all applicable freight charges, at cost. Metricom shall
pay Novatel any such properly invoiced and applicable amounts.
10. INCENTIVES AND PENALTIES.
10.1 ***
10.2 ***
11. FUTURE RELATIONSHIPS. In the event Novatel enters into a separate
purchase agreement with other parties, Novatel agrees that (i) ***
PART IV: GENERAL
12. CONFIDENTIALITY.
12.1 CONFIDENTIALITY. Each party hereto will maintain in
confidence all Confidential Information disclosed by the other party hereto.
Neither party will use, disclose or grant use of such Confidential Information
except as expressly authorized by this Agreement. To the extent that disclosure
is authorized by this Agreement, the disclosing party will obtain
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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<PAGE> 13
prior agreement from its employees, agents or consultants to whom disclosure is
to be made to hold in confidence and not make use of such information for any
purpose other than those permitted by this Agreement. Each party will use at
least the same standard of care as it uses to protect its own most confidential
information to ensure that such employees, agents or consultants do not disclose
or make any unauthorized use of such Confidential Information. Each party will
promptly notify the other upon discovery of any unauthorized use or disclosure
of the Confidential Information. Notwithstanding any other provision in this
Agreement to the contrary, the obligations set forth in this section shall
survive any termination or expiration of this Agreement for a period of ten
years thereafter.
12.2 EXCEPTIONS. The obligations of confidentiality contained in
this section will not apply to the extent that it can be established by the
receiving party by competent proof that such Confidential Information:
(a) was already known to the receiving party, other than
under an obligation of confidentiality, at the time of disclosure by the other
party;
(b) was generally available to the public or otherwise
part of the public domain at the time of its disclosure to the other party;
(c) became generally available to the public or otherwise
part of the public domain after its disclosure and other than through any act or
omission of the receiving party in broach of this Agreement;
(d) was disclosed to the receiving party, other than under
an obligation of confidentiality, by a third party which had no obligation to
the other party not to disclose such Information to others.
12.3 AUTHORIZED DISCLOSURE. Each party may disclose the
Confidential Information to the extent such disclosure is reasonably necessary
in filing or prosecuting patent applications, prosecuting or defending
litigation or complying with applicable governmental regulations, provided that
if such party is required to make any such disclosure of the Confidential
Information it will to the extent practicable give reasonable advance notice to
the other party of such disclosure requirement and, except to the extent
inappropriate in the case of patent applications, will use its best efforts to
secure confidential treatment of such information required to be disclosed. The
parties acknowledge that the sale of the Modem may necessarily disclose
Confidential Information of the parties and the parties agree to use
commercially reasonable efforts to limit such disclosure. In furtherance
thereof, Novatel agrees to provide Metricom a copy of all documentation.
12.4 OWNERSHIP OF CONFIDENTIAL INFORMATION. All Confidential
Information of a party shall remain the exclusive property of such party, and no
right, title or interest in such information shall be conveyed to the other
party by release of such information to it. Each party receiving such
information agrees to return or destroy all such information upon the written
request of the other party, or upon the reasonable determination by the other
party that the receiving Party no longer has a need for such information. Each
party agrees to notify the other party if it becomes aware of any use of the
information that is not authorized by this Agreement.
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<PAGE> 14
12.5 INJUNCTIVE RELIEF. Each party acknowledges that, in the
event of a breach of this Section by such party or any of its officers,
directors, agents and/or employees, the other party will suffer irreparable
damages that cannot be fully remedied by monetary damages. Each party therefore
agrees that the other party shall be entitled to seek injunctive relief against
any such breach in any court of competent jurisdiction. The rights of each party
under this Section shall not in any way be construed to limit or restrict its
rights to seek or obtain other damages or relief available under this Agreement
or applicable law.
12.6 INDEPENDENT DEVELOPMENT. The terms of this Section shall not
be construed to limit a party's right to independently develop or acquire
products which are similar in functionality to those of the other party so long
as such development or acquisition is made without the use of the Confidential
Information of the other Party. Both parties acknowledge that each of them may
currently or in the future be developing information internally, or receiving
information from other parties, that is similar to the Confidential Information
of the other. Nothing in this Agreement will be construed as a representation or
agreement that the receiving party will not develop or have developed for its
products, concepts, systems or techniques that are similar to or compete with
the products, concepts, systems or techniques contemplated by or embodied in the
Confidential Information provided that the receiving party does not violate any
of its obligations under this Agreement.
13. TERM AND TERMINATION.
13.1 TERM. This Agreement will commence as of the Effective Date
and, unless sooner terminated as provided hereunder, will terminate two (2)
years from the Effective Date. The term may be extended only upon the mutual
written agreement of the parties.
13.2 TERMINATION FOR CAUSE.
(a) The Agreement and the Metricom licenses granted herein
will terminate prior to the end of the term at the option of the non-breaching
party upon thirty (30) days written notice if the other party breaches or
defaults on any material obligation under this Agreement and fails to cure such
breach or default during such thirty (30) day period. In the event such breach
cannot reasonably be cured within such thirty (30) day period, the breaching
party shall be required to (i) commence curing such breach or default during
such thirty (30) day period and diligently pursue such cure until the breach or
default has been cured; and (ii) and provide written notice to the non-breaching
party of the time required to cure such breach or default.
(b) Metricom shall have the right to terminate this
Agreement upon written notice to Novatel in the event Novatel does not agree to
the Specifications for the Guaranteed Volume within sixty (60) days from the
execution of this Agreement. Upon such termination, Metricom will reimburse
Novatel for any expenses related to the development of the Modems incurred prior
to the termination date, ***.
13.3 EFFECT OF TERMINATION.
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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<PAGE> 15
(a) RESTOCKING FEE. If termination occurs as a result of
Metricom's material breach of the Agreement or upon Metricom's request without
cause, end such termination occurs prior to Metricom's receipt and acceptance of
*** that comply with this Agreement, then Metricom shall pay Novatel, ***.
Without limiting the foregoing, Metricom shall still be responsible for paying
any amounts due under any outstanding purchase orders where Novatel has
delivered and Metricom has accepted such deliveries.
(b) DUTIES OF THE PARTIES UPON TERMINATION. Upon any
termination or expiration of this Agreement, Novatel agrees to do the following:
(1) refrain thereafter from representing itself as a distributor or manufacturer
of the Modem; and (2) return to Metricom all tangible items in its possession or
under its control evidencing the Licensed Technology and Confidential
Information of Metricom, including all copies of the Metricom Software, the
source code, modified or otherwise, and any related documentation. Upon any
termination or expiration of this Agreement, Metricom agrees to return to
Novatel all tangible items in its possession or under its control evidencing
Confidential Information of Novatel.
(c) LICENSE TERMINATION. Upon any termination or
expiration of this Agreement, all licenses granted by Metricom under this
Agreement shall be terminated. Upon any termination or expiration of this
Agreement, all licenses, except those for Modems delivered to Metricom or its
Designee(s), granted by Novatel under this Agreement shall be terminated.
(d) SURVIVAL. Except as set forth in the applicable
section, Sections 1, 2, 3.3, 4, 5, 6.4, 6.5, 7, 12, 14, 15, 16 and 18 shall
survive any termination of this Agreement.
14. REPRESENTATIONS AND WARRANTIES.
14.1 REPRESENTATIONS AND WARRANTIES. Each party hereby represents
and warrants:
(a) CORPORATE POWER. Such party is duly organized and
validly existing under the laws of the state or county of its incorporation and
has full corporate power and authority to enter into this Agreement and to carry
out the provisions hereof.
(b) DUE AUTHORIZATION. Such party is duly authorized to
execute and deliver this Agreement and to perform its obligations hereunder,
(c) BINDING AGREEMENT. This Agreement is a legal and valid
obligation binding upon it and enforceable in accordance with Its terms. The
execution, delivery and performance of this Agreement by such party does not
conflict with any agreement, instrument or understanding, oral or written, to
which it is a party or by which it may be bound, nor violate any law or
regulation of any court, governmental body or administrative or other agency
having jurisdiction over it.
14.2 WARRANTY. Novatel represents and warrants that for a period
of twelve (12) months from the Metricom's or its Designee(s)'s acceptance of a
shipment as evidenced by the Acceptance Certificate, all Modems delivered under
this Agreement shall be free of defects in materials or workmanship and shall
conform with the applicable Specifications. In the event
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
-15-
<PAGE> 16
of a breach of this Warranty, Novatel shall repair or replace the defective
Modem(s) at no additional charge to Metricom or its Designee(s).
14.3 DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED
HEREIN, METRICOM HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND
OR NATURE, WHETHER EXPRESS OR IMPLIED, RELATING TO THE METRICOM TECHNOLOGY, THE
METRICOM SOFTWARE OR THE METRICOM PATENTS, INCLUDING WITHOUT LIMITATION ANY
WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. Without limiting the generality of the foregoing, Metricom
expressly does not warrant (i) the patentability of any of the Inventions, or
(ii) the accuracy, safety, or usefulness for any purpose, of the Licensed
Technology or the Modem. Except as set forth in Section 15, Metricom assumes no
liability in respect of any infringement of any patent or other right of third
parties due to any activities of Novatel under this Agreement.
15. INDEMNIFICATION.
15.1 INFRINGEMENT INDEMNITY.
(a) METRICOM INDEMNITY. Metricom shall indemnify and hold
Novatel harmless and will defend Novatel against any actions based on a claim
that the Technology, Metricom Know-How and Metricom Patents relied upon by
Novatel or the Metricom Software, in the absence of any modifications and not in
combination with any other technology, infringes any patent, copyright or other
proprietary rights of any third party, or misappropriates any trade secret of
any third party.
(b) NOVATEL INDEMNITY. Novatel shall indemnify and hold
Metricom harmless from and will defend against any action brought against
Metricom to the extent that it is based on a claim that the manufacture, use or
sale of the Modem infringes any patent, copyright or other proprietary rights of
any third party or misappropriates any trade secret of any third party, but not
to the extent such action is based on the incorporation or use of the
Technology. Metricom Know-How, Metricom Patents relied upon by Novatel or the
Metricom Software in such Modem.
(c) INDEMNIFICATION PROCEDURES. An indemnifying party
hereunder shall be liable for any costs and damages to third parties incurred by
the other party which are attributable to any such claims, provided that such
other party (i) notifies the indemnifying party promptly in writing of the
claim, (ii) permits the indemnifying party to defend, compromise or settle the
claim, and (iii) provides all available information, assistance and authority to
enable the indemnifying party to defend, compromise or settle such claim. Any
indemnifying party hereunder shall diligently pursue any defense required to be
rendered hereunder, shall keep the indemnified party informed of all significant
developments in any action defended by the indemnified party, and shall allow
the indemnified party reasonable opportunity to comment upon any settlement
proposed to be entered into by the indemnifying party on behalf of the
indemnified party.
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<PAGE> 17
15.2 GENERAL INDEMNIFICATION. Both parties agree to indemnify and
save harmless the other party, its subsidiaries, other affiliates, and the
officers, directors, employees, successors and assigns of any of them, from all
costs, damages and expenses including costs of settlement, reasonable attorney's
fees and court costs that arise out of or result from injuries or death to
persons or damage to property, including theft, caused by or on account of
negligence or willful misconduct by the indemnifying party or person furnished
by the indemnifying party.
16. LIMITATION OF LIABILITY.
16.1 WAIVER OF CONSEQUENTIAL DAMAGES. IN NO EVENT WILL EITHER
PARTY BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, LOST SAVINGS, OR ANY OTHER
INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, EVEN IF SUCH PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH
THE GRANTING OR USE OF THE LICENSES HEREUNDER.
16.2 LIMITATION OF LIABILITY. EXCEPT AS SET FORTH IN THIS
AGREEMENT OR IN THE CASE OF A KNOWING OR WILLFUL VIOLATION OF A PARTY'S OR ANY
THIRD PARTY'S INTELLECTUAL PROPERTY RIGHTS BY EITHER PARTY, NEITHER PARTY'S
TOTAL LIABILITY TO THE OTHER HEREUNDER SHALL EXCEED THE NET AMOUNT PAID BY
METRICOM TO NOVATEL UNDER THIS AGREEMENT.
17. INSPECTION AND AUDIT. Metricom shall be entitled, at its sole
expense, upon reasonable request and during normal business hours to witness
testing and manufacturing of the Modem at Novatel's facilities and to audit
Novatel's conformance with the Specification conformance test procedures upon
reasonable written notice. Such notice to exceed 72 hours and inspections not to
exceed five business days. Metricom personnel, in conducting such inspections
for audits, shall be bound by the confidentiality provisions set forth herein.
18. MISCELLANEOUS PROVISIONS.
18.1 RELATIONSHIP OF THE PARTIES. Neither party is, nor will be
deemed to be, an agent or legal representative of the other party for any
purpose. Neither party will be entitled to enter into any contracts in the name
of or on behalf of the other party, and neither party will be entitled to pledge
the credit of the other party in any way or hold itself out as having authority
to do so. No party will incur any debts or make any commitments for the other,
except to the extent, if at all, specifically provided herein.
18.2 ASSIGNMENT. Except as otherwise provided herein, neither
this Agreement nor any interest hereunder will be assignable in part or in whole
by either party without the prior written consent of the other; provided,
however, that Metricom may assign this Agreement to its Designee(s). This
Agreement will be binding upon the successors and permitted assigns of the
parties and the name of a party appearing herein will be deemed to include the
names of such party's successor's and permitted assigns to the extent necessary
to carry out the intent of this Agreement. Any assignment which is not in
accordance with this Section will be void.
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<PAGE> 18
18.3 the disclosing party will obtain prior agreement from its
employees, agents or consultants to whom disclosure is to be made to hold in
confidence and not make use of such information for
18.4 FORCE MAJEURE. Neither party will be liable to the other for
loss or damages or will have any right to terminate this Agreement for any
default or delay attributable to any fire, floods, earthquake, embargo, war, act
of war (whether declared or not), insurrections, riots, civil commotions,
strikes, lockouts or other labor disturbances, acts of God or act, omission or
delay in acting by any governmental authority other than those regulatory
agencies from whom approval or certification must be obtained or the other
party, if the party affected gives prompt notice of any such cause to the other
party. The party giving such notice will thereupon be excused from such of its
obligations hereunder as it is thereby disabled from performing for so long as
it is so disabled and for 30 days thereafter; provided, however, that such
affected party commences and continues to take reasonable and diligent actions
to cure such cause.
18.5 GOVERNING LAW AND VENUE. This Agreement is made in
accordance with and shall be governed and construed in accordance with the laws
of the State of California, without regard to conflicts of laws rules. All
disputes arising hereunder not resolved amicably by discussions between the
appropriate representatives of the parties shall be adjudicated in the state and
federal courts having jurisdiction over disputes arising in Santa Clara County,
California, and Novatel hereby consents to the jurisdiction of such courts. The
official language of this Agreement is English.
18.6 COMPLIANCE WITH LAWS AND REGULATIONS. Each party agrees that
it will comply with all federal, state and local laws and regulations in force
as of the Effective Date.
18.7 EXPORT CONTROL. The parties acknowledge that the manufacture
and sale of the Modem is subject to the export control laws of the United States
of America, including the U.S. Bureau of Export Administration regulations, as
amended, and hereby agree to obey any and all such laws. The parties agree not
to take any actions that would cause either party to violate the U.S. Foreign
Corrupt Practices Act of 1977, as amended.
18.8 NOTICES. All notices and other communications hereunder will
be in writing and will be deemed given if delivered personally or by facsimile
transmission (receipt verified), telexed or sent by express courier service, to
the parties at the following addresses (or at such other address for a party as
will be specified by like notice; provided, that notices of a change or address
will be effective only upon receipt thereof): If to Metricom, addressed to:
Metricom, Inc.
980 University Avenue
Los Gatos, CA 95030
if to Novatel, addressed to:
Novatel Wireless, Inc.
9380 Towne Centre
Suite 110
San Diego, CA 92121
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<PAGE> 19
18.9 AMENDMENT. No amendment, modification or supplement of any
provision of the Agreement will be valid or effective unless made in writing and
signed by a duly authorized officer of each party.
18.10 WAIVER. No provision of the Agreement unless such provision
otherwise provides will be waived by any act, omission or knowledge of a party
or its agents or employees except by an instrument in writing expressly waiving
such provision and signed by a duly authorized officer of the waiving party.
18.11 SEVERABILITY. Whenever possible, each provision of the
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of the Agreement is held to be prohibited
by or invalid under applicable law, such provision will be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of the Agreement.
18.12 HEADINGS. The section headings appearing in this Agreement
are inserted only as a matter of convenience and in no way define, limit,
construe or describe the scope or intent of any such section nor in any way
affect this Agreement.
18.13 PARTIES ADVISED BY COUNSEL. This Agreement has been
negotiated between unrelated parties who are sophisticated and knowledgeable in
the matters contained in this Agreement and who have acted in their own self
interest. In addition, each party has been represented by legal counsel. The
provisions of this Agreement shall be interpreted in a reasonable manner to
effect the purpose of the parties, and this Agreement shall not be interpreted
or construed against any party to this Agreement because that party or any
attorney or representative for that party drafted this Agreement or participated
in the drafting of this Agreement.
18.14 ENTIRE ASSIGNMENT OF THE PARTIES. The Agreement and the
Development Agreement will constitute and contain the complete, final and
exclusive understanding and agreement of the parties and cancels and supersedes
any and all prior negotiations, correspondence, understandings and agreements,
whether oral or written, between the parties respecting the subject matter
thereof.
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<PAGE> 20
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement, including the Exhibits attached hereto and incorporated herein by
reference, as of the Effective Date.
METRICOM, INC. NOVATEL WIRELESS, INC.
/s/ /s/
----------------------------------- ---------------------------------------
Signature Signature
----------------------------------- ---------------------------------------
Printed Name Printed Name
----------------------------------- ---------------------------------------
Title Title
----------------------------------- ---------------------------------------
Date Date
-20-
<PAGE> 21
EXHIBIT A
NOVATEL KNOW-HOW, PATENTS AND TECHNOLOGY
NONE
<PAGE> 22
EXHIBIT B
PATENTS
METRICOM PATENTS
***
***
***
***
***
***
***
***
***
***
***
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
<PAGE> 23
EXHIBIT C
NETWORK SPECIFICATIONS
To be provided within thirty (30) days from the execution of this Agreement.
<PAGE> 24
EXHIBIT D
METRICOM SPECIFICATIONS
GUARANTEED VOLUME MODEMS PERFORMANCE AND USAGE SPECIFICATION
1. SUMMARY OF FEATURES
***
2. PRODUCT REQUIREMENTS
The high level requirements for this product are listed below.
***
2.2. PHYSICAL CHARACTERISTICS
***
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
<PAGE> 25
The antenna shall protrude no further than 1" from the side of
the attached computer and have an extended length of no more than
6".
2.3. EXTERNAL MATERIAL
***
2.4. COLOR
***
2.5. BRAND IDENTIFICATION
***
2.6. STRUCTURAL INTEGRITY
***
2.7. MOUNTING AND ATTACHMENT TO OTHER DEVICES
***
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
<PAGE> 26
2.8. ANTENNA ATTRIBUTES
***
2.9. COMMUNICATION I/O PORT
***
2.10. IN-BOX MATERIAL
***
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
<PAGE> 27
3. USABILITY
3.1. INSTALLATION
***
3.2. USER INTERFACE
***
4. FUNCTIONALITY
4.1. OPERATING LIFE/POWER REQUIREMENTS
***
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
<PAGE> 28
***
4.2 COMPATIBILITY
***
4.3. SOFTWARE/FIRMWARE
***
5. ACCESSORIES
***
6. COMPATIBILITY
***
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
<PAGE> 29
6.2. OPERATING SYSTEMS
***
6.3 USER APPLICATIONS
***
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
<PAGE> 30
EXHIBIT E
INITIAL FORECAST AND DELIVERY SCHEDULE
<TABLE>
<S> <C>
*** ***
*** ***
*** ***
*** ***
*** ***
*** ***
*** ***
*** ***
*** ***
*** ***
*** ***
*** ***
*** ***
</TABLE>
Changes may be made to the Forecast and Delivery Schedule in accordance with
Section 7.3 of this Agreement.
***
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
<PAGE> 31
EXHIBIT F
PRICE
The parties acknowledge and agree that the prices of the initial design Modems
shall be as follows:
<TABLE>
<S> <C>
*** ***
*** ***
*** ***
*** ***
</TABLE>
***
***
***
***
***
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
<PAGE> 32
EXHIBIT G
TRADEMARKS
Metricom(R)
Ricochet(R)
Metricom design logo
Ricochet design logo
<PAGE> 33
EXHIBIT H
METRICOM CORPORATE STYLE GUIDE
To be provided within thirty (30) days from execution of the Agreement.
<PAGE> 34
EXHIBIT I
TECHNICAL SUPPORT LEVEL DEFINITIONS AND ESCALATION PROCESS
I. DEFINITIONS
LEVEL I TECHNICAL SUPPORT:
Level I Technical Support receives Customer calls and answers routine
inquires and frequently asked questions related to the basic operation
of the hardware and software, functionality, interoperability and
capabilities of the Modem using available tools, documentation, test
equipment and other materials provided by Novatel.
LEVEL II TECHNICAL SUPPORT:
Level II Technical Support shall be provided by Novatel support and
engineering staff and includes, but is not limited to, providing
assistance in resolving any outstanding Level I Support issues and
questions. Level II Technical Support shall be provided directly to
Level I Technical support personnel and Level I Technical Support
personnel shall have direct access to designated support staff within
the Novatel support organization for this purpose.
LEVEL III TECHNICAL SUPPORT:
Level III Technical Support shall be provided by Novatel support and
engineering staff and includes, but is not limited to, resolution of any
issues that cannot or have not been satisfactorily resolved by Level I
and Level II Support personnel and any problems with the engineering or
manufacturing of the Modem.
II. ESCALATION PROCESS:
Support issues related to the engineering or manufacturing of the Modem
shall immediately be escalated to Level III Technical Support
Level I Technical Support issues that are not resolved to Customer's
satisfaction will be forwarded to Level II Technical Support for further
investigation and resolution.
Level I Technical Support may refer a Customer directly to Novatel for
Level II and Level III Technical Support upon approval from Novatel.
Level II Technical Support issues that remain unresolved after *** from
the initial notification by Level I Technical Support of the problem, or
problems that are flagged as sensitive or mission critical, shall be
escalated to Level III Technical Support for final resolution.
Novatel shall provide prompt written explanation to Metricom or its
Designee of the problem, known symptoms, possible causes, and expected
time of resolution for any Level III Support issue that remains
unresolved longer than *** after escalation to Level
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
<PAGE> 35
III Support.
