EXHIBIT 10.92
BUSINESS ALLIANCE AGREEMENT
BETWEEN U.S. WIRELESS, CORPORATION
AND
HEWLETT-PACKARD COMPANY
U.S. Wireless, Corporation ("U.S. Wireless"), a Delaware corporation, and
Hewlett-Packard Company ("HP"), a Delaware corporation hereby enter into this
Business Alliance Agreement ("Agreement"), dated September 14, 2000, (the
"Effective Date").
WHEREAS, U.S. Wireless is in the business of developing and providing
proprietary technology in the area of wireless communications; and
WHEREAS, U.S. Wireless is constructing a nationwide location network
("Location Network") and service bureau for providing real-time location
information and services to wireless communications service providers and other
third party content and/or applications developers, and
WHEREAS, HP manufactures, markets and provides computer products and
related services which can be utilized by U.S. Wireless in the course of its
business; and
WHEREAS, HP and U.S. Wireless desire to form an alliance in which, among
other business dealings, HP shall become U.S. Wireless's preferred supplier for
its network control equipment, storage devices, software and firmware for the
building of U.S. Wireless's network operating center; and
WHEREAS, U.S. Wireless has engaged HP to build its initial network
operating center (the "NOC") pursuant to a statement of work, which services are
being financed by HP in accordance with a loan in the aggregate amount of
$7,000,000 (the "Initial Financing"); and
WHEREAS, HP and U.S. Wireless have agreed to expand their initial working
relationship to include commitments to undertake additional projects together;
and
WHEREAS, the parties desire to enter into this Agreement to set forth the
general terms and conditions of the Relationship to which the parties intend to
be bound.
NOW, THEREFORE, the parties agree as follows:
1. SCOPE OF AGREEMENT
In furtherance of the Relationship between the parties, U.S. Wireless and
HP agree to comply with all of the terms and conditions of this Agreement.
2. ASSOCIATED AGREEMENTS -
U.S. Wireless and HP will simultaneously enter into contracts and negotiate
in good faith certain Associated Agreements. The parties currently contemplate
that the Associated Agreements set forth below will be required, but the parties
agree that this list may be modified from time to time. Neither party will have
an obligation to enter into any such agreement if the parties are unable to
reach agreement on the material terms thereof. Each Associated Agreement shall
constitute a separate and complete agreement between the parties but may
reference or incorporate the terms and conditions of this Agreement if and when
appropriate.
(a) Project Agreement. This agreement would set forth the
terms and conditions governing the purchase and/or license of HP hardware
products and services by U.S. Wireless for U.S. Wireless's internal use. This
agreement would set forth the subsidiaries and ordering points that may procure
HP products and services under any such agreement. In addition, this agreement
would set forth the discounts that will apply to U.S. Wireless's purchase of HP
products. Such discounts shall not be less favorable then those HP provides to
comparable customers under similar circumstances.
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(b) Financing Agreements. These agreements would include the
documentation regarding the financing offering, if any, consistent with the
terms herein. In addition, all financing shall be subject to HP's standard
credit review and financial due diligence process.
(c) Mutual Non-Disclosure Agreement. The parties shall enter
into this Mutual Non-Disclosure Agreement to ensure that all confidential and
proprietary information shared by the parties hereto shall remain protected.
(d) HP Consulting Services Agreement. This agreement will
set forth the business terms and project scope for HP consulting services in
connection with the U.S. Wireless infrastructure build-out, as well as
additional projects requested by U.S. Wireless.
(e) Additional Agreements. In furtherance of the Relationship,
the parties may from time to time agree on additional areas for which Associated
Agreements are necessary or desirable. The parties hereby agree to negotiate in
good faith each such Associated Agreement.
3. HP FINANCING
3.1 Provided that the relationship is meeting the business objectives of
both parties, no event of default has occurred under the note pursuant to the
Initial Financing, and the Company has completed mutually agreed upon milestones
such as equipment deployments, new service and product releases, customer
sign-ups, and revenue forecasts, which milestones shall be mutually agreed upon
by the parties, HP will extend additional funding up to a maximum of $45,000,000
to the Company on comparable terms to those contained above with the exception
of the interest rate which will be adjusted to reflect current market rates, the
use of proceeds, the repayment schedule, and the warrant coverage which will be
determined at the time an agreement is reached for the additional funding
defined herein.
3.2 Any additional financing undertaken shall require additional agreements
between the parties, as referenced in subsection 2(e).
4. CO-MARKETING ACTIVITIES
4.1 Within 90 days of the effective date, HP and U.S. Wireless will develop
and abide by a joint marketing and promotional plan intended to publicize,
advertise, market and/or co-sell the Relationship and both U.S. Wireless's and
HP's products and services. The marketing plan will include, but is not limited
to the following:
The parties shall work together to:
(a) Support U.S. Wireless' marketing activities to
the telecommunications carriers, public safety
agencies, and other application providers.
(b) The announcement of this relationship between
the parties shall be announced in a press
release within 15 days following the execution
of this agreement and all other Associated
Agreements;
(c) The display of the HP logo/brand (i.e. "HP" or
"Powered by HP") in areas deemed appropriate by
HP and U.S. Wireless.
(d) The appropriate provision of joint marketing and
sales support to wireless telecommunications
carriers presently trailing with U.S. Wireless.
(e) HP and U.S. Wireless, at its own cost will
cooperate to market the basic (E911) location
data to additional wireless carriers.
(f) HP and U.S. Wireless shall review, as
appropriate, opportunities in markets outside
the United States similar to the undertaking
herein.
(g) HP and U.S. Wireless will each appoint a
dedicated alliance manager who will be
responsible for the business and technical
leadership of the joint marketing effort.
5. JOINT RESPONSIBILITIES
The parties will work together to:
(a) Identify new location dependent mobile services that can be created through
the USWC location platform.
(b) Develop the "architecture" (between the user/client and the location
platform) necessary to create the gateways for delivering these services.
(c) Develop specific applications that are of mutual interest.
(d) Create between themselves and other third parties the appropriate
partnering needed to accelerate the development and marketing of these
services.
6. PREFFERED TECHNOLOGY PROVIDER
6.1 U.S. Wireless agrees to make Hewlett-Packard Company its preferred
provider for computer products required for its network operating and data
centers, to include equipment such as servers, storage, data processing support,
and network management software, for the owned and outsourced environments.
Preferred Provider shall be the entity whose products and services the Company
uses rather than those of another manufacturer, and the Preferred Provider shall
have a right of first refusal to supply the products and services described
above. This requirement will apply so long as (i) the pricing payment and
delivery terms offered by HP for the relevant products and services will be
competitive with comparable products and terms from other vendors, and (ii) the
performance, functionality, and other specifications of the relevant HP products
and services will be comparable or superior to products of other vendors. Before
Company can cease to provide HP with Preferred Provider status as defined
herein, Except as provided in subsection 6.2, the Company must notify HP in
writing of the reason and justification for terminating the Preferred Provider
status. HP will be given no less than thirty (30) days to respond and cure any
problems hereunder before Company is relieved of its Preferred Provider
obligations.
6.2 The Preferred Provider status can be terminated by Company with 30 days
written notice if the additional funding referenced in Paragraph 3 is not
provided by HP within 12 months of the date hereof.
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7. ALLIANCE MANAGEMENT
7.1 Each party shall name one representative to be the alliance manager for
this Alliance Agreement. The initial Alliance Managers for each party are listed
in Exhibit 1. Either party may replace its Alliance Manager at any time upon
reasonable advance notice to the other, provided however, that if a party is
dissatisfied in any way with such a replacement, such party may use the dispute
resolution process set forth in Section 10.2 to communicate and resolve such
dissatisfaction.
7.2 Meetings of the Alliance Managers shall be held from time to time as
agreed by the Alliance Managers, but not less than once every three months
(quarterly). Such meetings may be conducted either in person or by telephone.
7.3 The Alliance Managers shall be responsible for understanding the full
scope of the Alliance. The Alliance Managers shall further be responsible for
engaging the appropriate representatives of their respective companies to allow
the parties to meet their obligations hereunder. The responsibilities of the
Alliance Managers shall include, but shall not limited, to the following:
(a) Overall management of the collaborative Alliance of the parties as
contemplated by this Agreement.
(b) The responsibility to attempt to resolve expeditiously any
conflict between parties related to this Agreement or the
Associated Agreements.
8. IP LICENSE
Except as otherwise specified in any Associated Agreement, HP and U.S.
Wireless will retain all rights, title, and interest in and to its intellectual
property rights, including but not limited to patents, copyrights, trademarks,
trade dress, and trade secret subject to the specific and express license to the
other to perform under this Agreement. The parties acknowledge and agree that,
except as expressly provided herein, no right, property, license, permission, or
interest of any kind in or to the other party's intellectual property rights is
or is intended to be given or transferred to or acquired by the other party by
the execution, performance, or non-performance of this Agreement or any part
hereof. All use of HP or U.S. Wireless's licensed intellectual property will
inure to the benefit of its respective owner.
9. WARRANTIES
EXCEPT AS EXPRESSLY WARRANTED IN THIS AGREEMENT, U.S. WIRELESS AND HP
EXPRESSLY DISCLAIM ANY OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY,
INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, INFRINGEMENT, AND COURSE OF DEALING OR COURSE OF
PERFORMANCE.
10. AL TERMS AND CONDITIONS.
10.1 No Joint Venture. Notwithstanding any provision hereof, this Agreement
does not create, and is not intended to create, a joint venture, partnership or
agency relationship between the Parties. For all purposes of this Agreement,
each Party shall be and act as an independent contractor and not as partner,
joint venturer or agent of the other and shall not bind nor attempt to bind the
other to any contract. Each Party shall be free to manage and control its
business as it sees fit, without the management, control or assistance of the
other Party, except as otherwise prescribed herein.
10.2 Severability. If one or more of the provisions of this Agreement shall
be found to be illegal, invalid or unenforceable under any applicable law, then
such contravention or invalidity shall not invalidate the entire Agreement. Such
provision shall be deemed to be modified consistent with the intent of the
parties to the extent necessary to render it legal, valid and enforceable, and
if no such modification shall render it legal, valid and enforceable, then such
agreement shall be construed as if not containing the provision held to be
invalid, and the rights and obligations of the parties shall be construed and
enforced accordingly.
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10.3 Governing Law. The validity of any of the terms or provisions as well
as the rights and duties of the parties under such agreements shall be governed
by the laws of the State of California, without reference to any conflict of law
or choice of law principles in the State of California that might result in the
application of the law of another jurisdiction.
10.4 Counterparts. This Agreement and the Associated Agreements may be
executed in multiple original counterparts, each of which shall be deemed an
original and all of which together shall constitute but one and the same
document.
10.5 No Waiver. Neither party's failure to exercise any of its rights under
this Agreement or any Associated Agreement shall constitute or be deemed a
waiver or forfeiture of any such rights.
10.6 Entire Agreement. This Agreement represents the entire understanding
between the parties regarding the subject matter herein, and supersedes any
previous communications, representations or agreements by either party whether
verbal or written. No changes or modifications of any of the terms and
conditions herein shall be valid or binding on either party unless in writing
and signed by an authorized representative of each party.
10.7 Notices. All notices that are required under this Agreement and the
Associated Agreements will be in writing and will be considered given as of
twenty (24) hours after sending by facsimile transmission, overnight courier, or
hand delivery or to such address as either party may substitute by written
notice to the other:
If to U.S. Wireless Corporation:
Attn: Jan A. Klein
Vice President - Business and Market Development
U.S. Wireless Corporation
2303 Camino Ramon
San Ramon, CA 94583
With a copy to: U.S. Wireless Corporation:
Attn: General Counsel's Office
2303 Camino Ramon
San Ramon, CA 94583
If to Hewlett-Packard Company:
Hewlett-Packard Company
333 Logue Avenue
Mountain View, CA 94043
Attn:
With a copy to:
Hewlett-Packard Company
3000 Hanover Street
Palo Alto, CA 94304
Attn: General Counsel
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10.8 Non-Exclusivity. Unless otherwise expressly set forth herein, the
undertaking referenced herein and the relationship between the parties, and all
aspects thereof are non-exclusive. Provided that such activities do not
otherwise constitute a breach of the MNDA, each party may develop itself, or
purchase or otherwise acquire from third parties, any products or services, and
each party may engage in any business, even if such business is competitive with
the business of the other party.
10.9 Assignability. Neither party shall assign this Agreement without the
written consent of the other party, which consent shall not be unreasonably
withheld.
10.10 Basis of Bargain. U.S. Wireless and HP acknowledge that each party
has entered into this Agreement in reliance upon the disclaimers of warranties
and limitations of liability and damages as set forth in this Agreement, and
that such provisions form an essential basis of the bargain between the parties
and do not cause this Agreement, or the remedies available hereunder, to fail of
its or their essential purpose.
10.11 Force Majeure. Excluding the obligation to make payment when due, in
the event that either party is prevented from performing, or is unable to
perform, any of its obligations under this Agreement due to any cause beyond the
reasonable control of the party invoking this provision, the affected party's
performance will be excused and the time for performance will be extended for
the period of delay or inability to perform due to such occurrence.
10.12 Priority. Should there be a conflict between any Associated Agreement
and this Agreement or should this Agreement be silent on a matter addressed in
the Associated Agreement, the Associated Agreement shall prevail as to the
subject matter of such Associated Agreement.
11. TERM AND TERMINATION
11.1 Term. This Agreement shall commence on the Effective Date and shall
continue for three (3) years (the "Term") unless earlier terminated by either
party as defined herein.
11.2 Termination.
(a) This Agreement may be terminated for cause by either party
if the other party is in breach of any of its material obligations under this
Agreement and fails to remedy such breach within 30 days of receipt of a written
notice by the other party that specifies the material breach.
(b) Either party may terminate this Agreement immediately for
cause if the other party has a receiver appointed, or an assignee for the
benefit of other creditors, or in the event of any insolvency or inability to
pay debts as they become due by the other party.
(c) Either party may terminate this Agreement upon written
notice in the event of a Change of Control, provided that the party undergoing
the Change of Control shall use its best efforts to notify the other party of
such event at the earliest time that it is legally permitted and practically
able to do so. As used herein, "Change of Control" means, with respect to either
Party: (a) the direct or indirect acquisition of either (i) the majority of the
voting stock of such party or (ii) all or substantially all of the assets of
Company, by another entity in a single transaction or series of related
transactions; or (b) such party is merged with, or into, another entity.
(d) Either party may terminate this agreement within 30 days
prior written notice if the Preferred Provider status defined in Section 6 is
terminated.
Effect of Termination of this Agreement. Upon any expiration or earlier
termination of this Agreement, the rights and obligations of the parties will
terminate, excluding those provisions which by their nature, extend beyond such
termination. Nothing herein shall terminate any on-going payment obligation
under any Financing Agreement, which obligations shall be governed solely by the
terms of such Financing Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized representatives.
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HEWLETT-PACKARD COMPANY U.S. WIRELESS CORPORATION
By: By:__________________________
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Name: Name:
Title: Title:
By:______________________________
Name:
Title:
By:______________________________
Name:
Title:
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