<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 10-QA
(MARK ONE)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED JUNE 30, 1998
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM ________________ TO
COMMISSION FILE NUMBER 000-28160
WESTERN WIRELESS CORPORATION
- --------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
WASHINGTON 91-1638901
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(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
3650 131ST AVENUE S.E., #400,
BELLEVUE, WASHINGTON 98006
- ---------------------------------------- --------------------
(Address of principal executive offices) (Zip Code)
(425) 586-8700
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(Registrant's telephone number, including area code)
2001 NW SAMMAMISH ROAD, ISSAQUAH, WASHINGTON, 98027
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(Former name, former address and former fiscal year,
if changed since last report.)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes [X] No [ ]
Indicate the number of shares outstanding of each of the issuer's classes
of common stock, as of the latest practicable date.
<TABLE>
<CAPTION>
Title Shares Outstanding as of July 27, 1998
- ------------------------------------------------------------------------------------------------
<S> <C>
Class A Common Stock, no par value 37,098,922
Class B Common Stock, no par value 38,770,029
</TABLE>
This amendment to the form 10-Q is being filed for the sole purpose of filing
Exhibits 10.70, 10.71 and 10.72, which were omitted from the original filing on
August 5, 1998.
<PAGE> 2
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Description
- ------- -----------
<S> <C>
10.70 * Amendment Number 4 to PCS 1900 Project and Supply
Agreement by and between Western PCS Corporation and Northern
Telecom Inc. dated March 26, 1998.
10.71 * Supply Contract by and between Western PCS Corporation and Nokia
Telecommunications Inc. dated March 9, 1998.
10.72 * Purchase and Sale Agreement by and between Nokia Mobile
Phones, Inc. and Western PCS Corporation dated March 9, 1998.
10.73 ** Loan Agreement among Western PCS Holding Corporation, various
financial institutions, and Toronto-Dominion (Texas), Inc. as
Administrative Agent, dated June 26, 1998.
10.74 ** Asset Purchase Agreement by and between Western Wireless
Corporation and Corporate Telecom Services, Inc. dated
November 28, 1997.
10.75 ** Asset Purchase Agreement by and between WWC Holding Co., Inc.,
Western Wireless Corporation, and Celludyne II, Inc. dated
June 10, 1998.
27.1 ** Financial Data Schedule
</TABLE>
- ----------------------
* Portions of these Exhibits have been omitted and filed separately with the
Secretary of the Commission pursuant to the Registrant's Application
Requesting Confidential Treatment under Rule 246-2 of the Securities
Exchange Act of 1934.
** Previously filed with the original Form 10-Q filed on August 5, 1998
2
<PAGE> 3
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.
Western Wireless Corporation
By s:\ Donald Guthrie By s:\ Patricia L. Miller
----------------------------- -----------------------------
Donald Guthrie Patricia L. Miller
Chief Financial Officer Controller (Principal
Accounting Officer)
Dated: August 14, 1998
3
<PAGE> 1
EXHIBIT 10.70
AMENDMENT NO. 4
TO
PCS 1900 PROJECT AND SUPPLY AGREEMENT
BETWEEN
WESTERN PCS CORPORATION
AND
NORTHERN TELECOM INC.
Made as of this 26th day of March, 1998, by and between Western PCS-Corporation
(hereinafter referred to as "Buyer") a Delaware corporation with offices located
at 2001 NW Sammamish Road, Suite 100, Issaquah, Washington 98027 and Northern
Telecom Inc., a Delaware corporation with offices located at 2221 Lakeside
Boulevard, Richardson, TX 75082 (hereinafter referred to as "Seller").
WHEREAS, Buyer and Seller entered into a PCS 1900 Project and Supply
Agreement dated June 30, 1995 (as heretofore amended, the "Agreement"); and
WHEREAS, Buyer and Seller now wish to amend the Agreement, among other
things, to extend the Term and increase Buyer's Commitment by adding the Seattle
and Phoenix BTA markets to the scope, resolve liquidated damages claims, and
incorporate a revised software pricing and hardware discount structure.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, Buyer and Seller agree to amend the Agreement as follows:
1. Amend Article 1, Section 1.36 "Term" by deleting the words * and
replacing them with the words * .
2. Amend Article 5, Section 5.9 (Amendment #3) by deleting the words *
and replacing them with the words * .
3. Amend Article 2, Section 2 by adding the following new Subsection
2.2.6:
2.2.6 Buyer agrees to purchase all of its initial NSS
Equipment requirements for *, and license the associated software, exclusively
from Seller.
4. Amend Article 5 by adding the following Subsection 5.4.1 as follows:
5.4.1 *.
5. Amend Article 7 by adding the following new subsection 7.3.1:
7.3.1 Year 2000 Ready - Warranty. Seller represents and
warrants that Seller's Hardware and/or Software supplied to Buyer under this
Agreement, shall function, during the applicable Warranty Period of the
applicable Hardware and/or Software under this Agreement, with respect to any
date dependent operations, without any material, service-affecting or
* Information omitted and filed separately with the SEC pursuant to request for
confidential treatment under Rule 406 of the Securities Act of 1933, as amended.
<PAGE> 2
operational non-conformance to its applicable specifications, provided that both
any Hardware and/or any specific Software load or release designated as
necessary by Seller has been installed with respect to such Seller Hardware
and/or Software. If Seller's Hardware and/or Software fails to so function,
Buyer's sole remedy and Seller's sole obligation under this warranty is for
Seller, at the earliest practicable time, to correct such failure through, at
Seller's option, the replacement or the repair or modification of the applicable
Hardware and/or Software or such other actions as Seller reasonably determines
to be appropriate.
The foregoing does not constitute a commitment by Seller (a)
to support the Hardware and/or Software beyond its contractually committed
Warranty Period, or (b) that the date format used by the Hardware and/or
Software complies with any particular standard. Some Seller Hardware and/or
Software may continue to use year representations which do not use four digits
where such representations can be interpreted without ambiguity as to century.
6. Article 12, by adding the following new Subsection 12.10:
12.10 *.
(i) *.
(a) *.
(b) *.
(ii) *.
(iii) *.
(iv) *.
(v) *.
(vi) *.
7. Amend Annex 1 by adding Subsection 1.7.4.5, which concerns the
following (net) nodal Software pricing structure which shall apply to Seller's
Software releases following NSS GSM 10 and the corresponding BSS load:
1.7.4.5 SOFTWARE PRICE (non-discountable unless otherwise
noted)
*.
A. NSS
1. *.
-2-
<PAGE> 3
2. *.
3. *.
B. BSS
1. *.
2. *.
3. *.
C. OMC-R
1. *.
2. *.
3. *.
8. Amend Annex 1 by adding the following Subsection 1.7.6:
1.7.6 *.
9. Amend Annex 1, Section 2.1 by deleting the 1999 NSS (non-OEM) 60%
discount and replacing it with the following:
2.1 Discounts
<TABLE>
<CAPTION>
1999 2000 2001 2002 2003
-------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C>
*% *% *% *% *%
</TABLE>
10. Amend Annex 1, Section 2.1.1 by adding the sentence below after the
words *
Notwithstanding the * date set forth above, Seller agrees that
Buyer may use such product credits for payment of not more than * of any invoice
for Seattle and/or Phoenix market NSS Equipment, which has been deferred
pursuant to Section 5.4.1 herein,
This Amendment No. 4 shall be effective upon execution by both
parties.
Except as specifically modified herein, the Agreement shall in
all respects continue in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by their representatives being thereunto duly
authorized.
-3-
<PAGE> 4
WESTERN PCS CORPORATION NORTHERN TELECOM INC.
By: /s/BOB STAPLETON By: /s/MATTHEW J. DESCH
---------------------------------- --------------------------------
Name: Bob Stapleton Name: Matthew J. Desch
-------------------------------- ------------------------------
Title: President Title: President
------------------------------- -----------------------------
Date: 3/30/98 Date: 4/2/98
-------------------------------- ------------------------------
-4-
<PAGE> 1
EXHIBIT 10.71
Confidential & Proprietary
SUPPLY CONTRACT
BY AND BETWEEN
WESTERN PCS CORPORATION
AND
NOKIA TELECOMMUNICATIONS INC.
<PAGE> 2
1
* Information omitted and filed separately with the SEC pursuant to request for
confidential treatment under Rule 406 of the Securities Act of 1933, as amended.
Confidential & Proprietary
CONTENTS
PREAMBLE
ARTICLE 1 - DEFINITIONS
ARTICLE 2 - PURPOSE OF THE SUPPLY CONTRACT
ARTICLE 3 - SCOPE OF SUPPLY
ARTICLE 4 - PURCHASER'S OBLIGATIONS
ARTICLE 5 - PRICE AND PAYMENTS
ARTICLE 6 - DELIVERY
ARTICLE 7 - INSTALLATION
ARTICLE 8 - INSPECTION, TESTING AND ACCEPTANCE
ARTICLE 9 - WARRANTIES, MAINTENANCE AND TECHNICAL SUPPORT
ARTICLE 10 - DELAYS, DAMAGES AND TERMINATION
ARTICLE 11 - FORCE MAJEURE
ARTICLE 12 - GOVERNMENT REGULATIONS
ARTICLE 13 - CONFIDENTIALITY
ARTICLE 14 - INTELLECTUAL PROPERTY RIGHTS
ARTICLE 15 - EFFECTIVE DATE
ARTICLE 16 - GENERAL
SIGNATURES
<PAGE> 3
2
* Information omitted and filed separately with the SEC pursuant to request for
confidential treatment under Rule 406 of the Securities Act of 1933, as amended.
Confidential & Proprietary
APPENDICES
APPENDIX 1A- Scope of Supply-Base Station Subsystem
APPENDIX 1B- Scope of Supply-Network Switch Subsystem
APPENDIX 2A- GSM 1900 Talk Family Base Station
APPENDIX 2B- GSM 1900 PrimeSite Base Station
APPENDIX 3 - Base Station Controller (BSC)
APPENDIX 4 - Transcoder (TCSM)
APPENDIX 5 - Nokia OMC System
APPENDIX 6 - Rolling Forecast and Ordering Procedure for Nokia BSS
Equipment and Services
APPENDIX 7 - Engineering Services
APPENDIX 8 - Project Implementation and Management
APPENDIX 9 - BSS Site Requirements
APPENDIX 10A - Pricing - Nokia Base Station Subsystem
APPENDIX 10B- Pricing - Nokia Network Switch System
APPENDIX 10C- Discounts
APPENDIX 11 - Acceptance Procedures
APPENDIX 12 - Division of Responsibilities between Supplier and
Purchaser
APPENDIX 13 - Software License Agreement
APPENDIX 14 - Support Services Agreement with Appendices A
through D
<PAGE> 4
3
* Information omitted and filed separately with the SEC pursuant to request for
confidential treatment under Rule 406 of the Securities Act of 1933, as amended.
Confidential & Proprietary
THIS SUPPLY CONTRACT, made and entered into this 9th day of March, 1998.
by and between
Western PCS Corporation, a Delaware corporation having its principal
office at 2001 N.W. Sammamish Road, Issaquah, WA 98027 (hereinafter
referred to as the "Purchaser");
and
Nokia Telecommunications Inc., a Delaware corporation having its
principal office at 6000 Connection Drive, Irving, Texas 75039
(hereinafter referred to as the "Supplier").
WITNESSETH THAT
WHEREAS
A The Purchaser or its Affiliates have successfully bid for
broadband Personal Communication Services (hereinafter "PCS")
licenses in auctions conducted by the Federal Communications
Commission (hereinafter "FCC") and have been awarded a number
of PCS licenses by the FCC, including for Seattle and Phoenix,
to build and operate PCS networks in those areas. The
Purchaser, its Affiliates (as defined below) or the *s (as
defined below) may acquire licenses or rights for additional
PCS networks; and
B Purchaser and Supplier entered into a Supply Contract dated
December 14, 1995 (the "Prior Supply Agreement"), which
Purchaser and Supplier now desire to amend and supersede by
entering into this Supply Contract (provided, however, that
warranty provisions, spare parts supply requirements,
indemnities and other provisions which by their nature extend
beyond the term of the Prior Supply Agreement, but which
relate to Equipment, Services and Software that was delivered
prior to the date hereof, shall continue for the period set
forth in the Prior Supply Agreement).
C The Purchaser has decided to deploy GSM 1900 technology
(hereinafter "GSM 1900") for its PCS networks; and
D The Supplier designs, manufactures and sells GSM 1900 Base
Station Sub-System infrastructure equipment and software and
performs related services (hereinafter "BSS Systems"); and
E The Purchaser has issued a request for quotation (hereinafter
"RFQ") to selected vendors to offer BSS Systems for its PCS
networks; and
<PAGE> 5
4
* Information omitted and filed separately with the SEC pursuant to request for
confidential treatment under Rule 406 of the Securities Act of 1933, as amended.
Confidential & Proprietary
F The Supplier has submitted an offer (hereinafter "Offer") in
response to the RFQ for the supply of BSS Systems for the
Purchaser's PCS networks; and
G The Parties have conducted good faith negotiations based on
Nokia's Offer whereby the Purchaser has agreed to purchase
from the Supplier BSS Systems and the Supplier has agreed to
supply the same.
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
ARTICLE 1
DEFINITIONS
In all interpretations of this Supply Contract the following
definitions shall govern:
1.1 "Acceptance" shall mean, in respect of each Site, the
successful completion of testing of Equipment and Software at
such Site as specified in Article 8 of this Supply Contract
and "Acceptance Date" shall mean the date on which Acceptance
has occurred.
1.2 "Additional Order" shall mean an Order issued by the Purchaser
hereunder for Equipment, Software or Services not within the
Total Supply Contract Price.
1.3 "Affiliate" shall mean another entity which controls a Party
hereto, or is controlled by a Party hereto or which is under
common control with a Party hereto. Control, for the purposes
of this Paragraph, shall mean the direct or indirect ownership
of 50% or more of the shares or interests entitled to vote for
the directors thereof or the equivalent, for so long as such
entitlement exists, or equivalent power over management
thereof. Any Affiliate of Purchaser which does not operate a
PCS system under an FCC license in the U.S. shall be excluded
from this definition. For purposes of this Supply Contract,
"Cook Inlet" (defined below) shall be considered to be an
Affiliate of Purchaser, so long as Purchaser's ownership
interest continues to be at least at the same level it is on
the first date above.
1.4 "Certificate of Acceptance" shall mean a document to be issued
by the Supplier and countersigned by the Purchaser upon
Acceptance as set forth in Article 8 below.
1.5 "Consecutive Order" shall mean any Order (including the
Initial Order) of the Purchaser hereunder, for Equipment,
Software or Services within the Total Supply Contract Price.
<PAGE> 6
5
* Information omitted and filed separately with the SEC pursuant to request for
confidential treatment under Rule 406 of the Securities Act of 1933, as amended.
Confidential & Proprietary
1.6 "Cook Inlet" shall mean that certain entity formally known as
Cook Inlet Western Wireless PV/SS PCS L.P., in which Purchaser
has a 49% ownership interest. Cook Inlet shall be considered
an Affiliate of Purchaser for purposes of this Supply
Contract, so long as Purchaser's ownership interest continues
to be at least at the same level it is on the first date
above.
1.7 "Documentation" shall mean the system description documents,
general instructions, drawings, diagrams and other written
material that the Supplier is required to provide to the
Purchaser under this Supply Contract, other than documents
falling within the definition of Equipment. Documentation
includes all documents necessary for the installation,
operation and maintenance of the Equipment and Software.
1.8 "Equipment" shall mean all the telecommunications equipment
(together with the manuals and other equipment-specific
documentation separately itemized in Appendices 1A and 1B
attached hereto and including - without separate itemization -
such installation materials and consumables that are necessary
for installation at the Sites), but not including the
Software. In the event of new items of equipment to be
included into the Supply Contract as Equipment, or items of
existing Equipment to be deleted from the scope of the Supply
Contract, then the Parties shall amend Appendix 1A and 1 B
accordingly. Whenever the Supplier shall have new equipment to
offer to its GSM 1900 customers, then the Supplier shall offer
the same to the Purchaser, and such equipment will then be
included as part of Appendix 1A and 1B.
1.9 "Information" shall mean technical, financial and commercial
information and data relating to a Party's or its Affiliates'
or *s' respective businesses, finances, planning, facilities,
products, techniques and processes and shall include, but is
not limited to, discoveries, ideas, concepts, know-how,
techniques, designs, specifications, drawings, blueprints,
tracings, diagrams, models, samples, flow charts, data,
computer programs, disks, diskettes, tapes, marketing plans,
customer names, prices, and other technical, financial or
commercial information and intellectual properties, whether in
written, oral or other tangible or intangible forms.
1.10 "Initial Order" shall mean the Order or Orders to be submitted
by Purchaser for Equipment and Software for the Seattle and
Phoenix Markets, to be delivered on or before * , not
exceeding * Sites. The Equipment and Software qualifying as
the Initial Order will be eligible for the special payment
provisions in Paragraph 5.2.
1.11 "Iowa Wireless" shall mean Iowa Wireless Services, L.P., in
which Purchaser presently owns a 38% interest.
1.12 "Order" shall mean an Initial Order, a Consecutive Order or an
Additional Order.
<PAGE> 7
6
* Information omitted and filed separately with the SEC pursuant to request for
confidential treatment under Rule 406 of the Securities Act of 1933, as amended.
Confidential & Proprietary
1.13 "Party" shall mean the Purchaser or the Supplier.
1.14 "Project Location" shall mean any place where the Purchaser is
building a System at which management and operations people
are located.
1.15 "PCS Market" shall mean any market operated by Purchaser from
a central location which is served by an MTA license or one or
more BTA licenses.
1.16 *.
1.17 "Services" shall mean the system design, installation,
commissioning, integration supervision, training, consultancy
and technical assistance services that the Supplier is
required to provide to the Purchaser under this Supply
Contract and which are described in Appendix 7. Whenever the
Supplier shall have new services to offer to its GSM 1900
customers, then the Supplier shall offer the same to the
Purchaser, and such services will then be included as part of
Appendix 7.
1.18 "Site" shall mean each physical location where Equipment will
be installed.
1.19 "Software" shall have the meaning set forth therefor in the
software license agreement attached hereto as Appendix 13.
1.20 "Specifications" shall mean the technical requirements and
performance standards of the Equipment and Software as set
forth in Appendices 2-5 attached hereto. The said Appendices
2-5 shall be updated from time to time as and when new items
are included into the definition of the Equipment. However,
unless otherwise agreed, such future amendments of Appendices
2-5 shall not reduce, diminish or otherwise adversely impact
the previously agreed Specifications.
1.21 "Supply Contract" shall mean this Supply Contract and all its
appendices as well as any amendments or addenda that may
subsequently be agreed upon in writing between the Parties.
1.22 "Support Services" means the services described in the Support
Services Agreement attached hereto as Appendix 14, including
hardware repair, operation and maintenance assistance,
software support, technical support and system consultancy
services.
1.23 "System" shall mean any PCS radiotelephone system in the
United States supplied under this Supply Contract which is to
be operated by the Purchaser or its Affiliate.
<PAGE> 8
7
* Information omitted and filed separately with the SEC pursuant to request for
confidential treatment under Rule 406 of the Securities Act of 1933, as amended.
Confidential & Proprietary
1.24 "TCSM" is a transcoder, described in greater detail in
Appendix 4.
1.25 "Time Schedule" shall have the meaning set forth in Paragraph
6.3 below
1.26 "Total Supply Contract Price" shall mean * , which is to be an
aggregate price over five (5) years, after taking into account
all credits and discounts to which Purchaser may be eligible
under Appendix 10C (other than those credits and discounts
referred to in Paragraph 11 of Appendix 10C). In other words,
the total amount of Equipment, Software and Services ordered
under this Supply Contract must equal at least * after 5
years, after all offsetting credits and discounts have been
factored in, except the handset credits as specified in
Paragraph 11 of Appendix 10C. The Total Supply Contract Price
also excludes any sales or similar taxes, payable by the
Purchaser to the Supplier for the Equipment, Software and
Services provided hereunder.
ARTICLE 2
PURPOSE OF THE SUPPLY CONTRACT
2.1 By entering into this Supply Contract, the Purchaser and the
Supplier agree on all the terms and conditions applicable to
their respective rights and obligations regarding the supply
of Equipment, Software or Services by the Supplier to the
Purchaser.
2.2 In addition to this Supply Contract document, the following
documents are hereby expressly incorporated herein by
reference and made part of this Supply Contract:
APPENDIX 1A SCOPE OF SUPPLY - BASE STATION SUBSYSTEM
APPENDIX 1B SCOPE OF SUPPLY - NETWORK SWITCH SYSTEM
APPENDIX 2A GSM 1900 TALK FAMILY BASE STATION
APPENDIX 2B GSM 1900 PRIMESITE BASE STATION
APPENDIX 3 BASE STATION CONTROLLER (BSC)
APPENDIX 4 TRANSCODER (TCSM)
APPENDIX 5 NOKIA OMC SYSTEM
APPENDIX 6 ROLLING FORECAST AND ORDERING PROCEDURE FOR
NOKIA BSS EQUIPMENT AND SERVICES
APPENDIX 7 ENGINEERING SERVICES
APPENDIX 8 PROJECT IMPLEMENTATION AND MANAGEMENT
APPENDIX 9 BSS SITE REQUIREMENTS
APPENDIX 10A PRICING - NOKIA BASE STATION SUBSYSTEM
APPENDIX 10B PRICING - NETWORK SWITCH SYSTEM
APPENDIX 10C DISCOUNTS
APPENDIX 11 ACCEPTANCE PROCEDURES
<PAGE> 9
8
* Information omitted and filed separately with the SEC pursuant to request for
confidential treatment under Rule 406 of the Securities Act of 1933, as amended.
Confidential & Proprietary
APPENDIX 12 DIVISION OF RESPONSIBILITIES BETWEEN
SUPPLIER AND PURCHASER
APPENDIX 13 SOFTWARE LICENSE AGREEMENT
APPENDIX 14 SUPPORT SERVICES AGREEMENT WITH ANNEXES A
THROUGH D
2.3 In case of any discrepancies among the above documents, the
text of this Supply Contract shall always prevail over any of
the Appendices and the Appendices shall apply in the order set
forth above. Each Appendix shall prevail over the documents
referenced in said Appendix. Later made addenda and amendments
alter the contents of this Supply Contract only to the extent
expressly agreed upon between the Parties; all other
conditions shall always remain unchanged.
2.4 Subject to the conditions specified herein, Purchaser's
Affiliate(s) and *(s) will have the right to purchase
Equipment, Software and Services under substantially the same
terms as this Supply Contract (including the identical price,
incentives, credits, warranty and discount terms), excluding,
however, in the case of *s, the handset and module discounts
in Paragraph 11 of Appendix 10C, the NSS pricing in Appendix
10B, and the services and incentives set forth in Paragraphs 8
through 10 of Appendix 10C.
(a) For an Affiliate this right is contingent upon the
following requirements: (i) Supplier must be reasonably
satisfied with the creditworthiness and reputation of
such Affiliate, (ii) such Affiliate must not be a direct
competitor of Supplier; and (iii) such Affiliate must not
be an opposing party in pending litigation against
Supplier. However, if Purchaser elects to directly
purchase items on behalf of an Affiliate and remains
fully liable therefor, no separate agreement will be
required between Supplier and the Affiliate, and the
provisions of subsections (i) through (iii) above will
not be applicable.
(b) * .
(c) Supplier hereby agrees that it is willing to enter
into such agreement(s) with Affiliates and * on
substantially the same terms and conditions as set forth
in this Supply Contract.
(d) If Purchaser desires a pre approval from Supplier of
any proposed * or Affiliate, so that Purchaser may be
assured before a transaction that the resulting entity
will be entitled to purchase Equipment, Software and
Services on acceptable terms, Supplier agrees to review
on an expedited basis any such request, and to
communicate the terms and conditions of its approval to
Purchaser (and not to unreasonably withhold its
approval).
<PAGE> 10
9
* Information omitted and filed separately with the SEC pursuant to request for
confidential treatment under Rule 406 of the Securities Act of 1933, as amended.
Confidential & Proprietary
(e) It is agreed that a separate agreement between
Supplier and an Affiliate or *, as contemplated by this
Paragraph 2.4, need not include a full recitation of all
the terms and conditions of this Supply Contract but may
instead incorporate by reference all relevant terms and
be prepared as an amendment or addendum to this Supply
Contract.
(f) If an Affiliate of Purchaser purchases Equipment,
Software and/or Services under this Supply Contract, it
shall be deemed to be Purchaser for all purposes with
respect to this Supply Contract, provided that a letter
agreement or other written amendment or addendum to this
Supply Contract has been executed by the Affiliate so
stating.
2.5 It is further agreed that the payment terms under any such
agreement(s) shall be * from the issuance of the invoice
subject to the same invoice milestones as set forth in this
Supply Contract.
2.6 Upon execution of this Supply Contract, Purchaser will be
deemed to have satisfied all volume discount requirements in
the Prior Supply Agreement and Supplier will issue an open
credit memo on the resulting additional earned credits, to be
applied against outstanding invoices and future purchases by
Purchaser under this Supply Contract. The amount of such
additional earned credit is *.
2.7 This Supply Contract replaces and supersedes the terms and
conditions of the Prior Supply Agreement, except for the
warranty provisions, spare parts supply requirements,
indemnities and other provisions which by their nature extend
beyond the term of the Prior Supply Agreement, but which
relate to Equipment, Software and Services that was delivered
prior to the date hereof. All interest on late payments
accruing under Section 5.8 of the Prior Supply Contract are
hereby waived by Supplier
ARTICLE 3
SCOPE OF SUPPLY
3.1 The Supplier shall supply to the Purchaser, pursuant to Orders
issued by the Purchaser in accordance with Paragraph 4.2
below, the Equipment, Software, Services, spare parts,
training, Documentation and the special tools and instruments
which are ordered by the Purchaser from time to time.
3.2 A technical description of the BSS System is contained in
Appendices 2-5.
3.3 Appendices 2-5 attached hereto define the technical limits
within which the Equipment and Software are limited as well as
the requirements of the environment, infrastructure and
interworking equipment necessary to achieve
<PAGE> 11
10
* Information omitted and filed separately with the SEC pursuant to request for
confidential treatment under Rule 406 of the Securities Act of 1933, as amended.
Confidential & Proprietary
properly functioning Equipment and Software. The conditions
and procedures for interface arrangement are also specified in
said Appendices 2-5. The Supplier shall, if so requested by
the Purchaser, take project management responsibility for the
implementation of interworking verification between the
Equipment and NSS equipment provided by a third party vendor
on terms and conditions to be mutually agreed upon by the
three parties involved. The Supplier further warrants that the
Equipment and Software shall, at all times, conform to the
A-Interface specifications as provided by the applicable
standard, as the same shall change from time to time. The
Supplier's cooperation with the third party NSS equipment
vendor shall include trouble shooting, interoperability
testing, and good faith effort to cooperate with such third
party to meet the Purchaser's requirements. It is however
expressly agreed that the Supplier shall not be liable in any
way for the functionality of any equipment or software
provided by a third party, or for any acts or omissions of
such third party. The Purchaser shall use all reasonable
efforts to enter into a similar undertaking with the third
party to ensure the third party's cooperation with the
Supplier to facilitate the objectives described herein.
3.4 The Specifications to which the Equipment and Software shall
be required to conform are set forth in Appendices 2-5
attached hereto. The Supplier shall obtain any necessary type
approvals to the extent not heretofore obtained.
3.5 The Supplier may use reliable subsuppliers and subcontractors
in the performance of its obligations hereunder and the
Supplier shall be fully responsible towards the Purchaser for
the performance hereunder. Supplier's warranties in Article 9
will include work performed by such subsuppliers and
subcontractors. The Parties hereby acknowledge that the
following Affiliates of the Supplier may be involved in the
manufacture and delivery under this Supply Contract:
Nokia Telecommunications Oy
Nokia Telecommunications Ltd.
It is agreed that the Purchaser shall have the right to
approve the engagement of major subcontractors or
subsuppliers, such approval not to be unreasonably withheld.
3.6 Additions, deletions and other changes to this Supply Contract
require a written amendment of this Supply Contract. All such
Supply Contract amendments, which will be numbered
consecutively, shall be duly signed and delivered by
authorized representatives of both Parties prior to effecting
any of the changes therein contained. In the case of changes
needed in the timing of Equipment and Software deliveries, the
change order procedure specified in Appendix 6 shall apply.
<PAGE> 12
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* Information omitted and filed separately with the SEC pursuant to request for
confidential treatment under Rule 406 of the Securities Act of 1933, as amended.
Confidential & Proprietary
3.7 The Supplier shall within a reasonable time of receiving a
reasonable request for a change issued by the Purchaser
provide a written offer to the Purchaser. If the change is
with respect to the timing of a delivery or the quantities of
Equipment to be delivered and such change is in accordance
with the provisions of Appendix 6, Supplier will be obligated
to accept the change and will confirm the same as
above-described. If the change does not satisfy the
requirements of Appendix 6, Supplier will use all commercially
reasonable efforts to accommodate the change and will respond
by written offer as aforesaid, if the changed order can be
satisfied.
3.8 Notwithstanding the foregoing provisions, the Supplier may
make minor modifications to the Equipment or Software or
provide new versions or models of individual items of
Equipment or Software, provided that such modifications and/or
new versions or models (i) fully meet the requirements of this
Supply Contract (including the Specifications), (ii) * , and
(iii) *.
Both Parties acknowledge that compatibility problems may arise
for established PCS operators like Purchaser when new
generations of PCS equipment are created and released by
providers such as Supplier. Both Parties also acknowledge that
Supplier needs to have flexibility to innovate and modify its
new products, so that it can achieve and maintain a leading
edge competitive advantage in the marketplace. The Parties
agree to cooperate with each other, to the extent reasonably
and commercially possible, in providing and soliciting
feedback from one another, concerning future generations of
equipment and software to be released by Supplier during the
term of this Supply Contract.
Notwithstanding the development of new generations of
Supplier's products, Supplier agrees that it will support the
products theretofore purchased by Purchaser for a period of
ten (10) years from the date hereof so that Purchaser has the
ability to repair, replace and expand its Systems without
being required to change out its existing Equipment and
Software.
3.9 The Supplier hereby grants to the Purchaser during the term of
this Supply Contract, options to order additional quantities
of Equipment, Software and Services beyond that covered by the
Total Supply Contract Price. Unless otherwise mutually agreed,
all the terms and conditions of this Supply Contract shall
apply to the deliveries of the additional quantities of
Equipment and Software and to the performance of the
additional Services. An Additional Order consistent with the
foregoing shall be duly issued by the Purchaser and accepted
by the Supplier, in the event that the Purchaser elects to
exercise these options.
3.10 The project organizations of Supplier and Purchaser are
described in Appendix 8. With respect to the Phoenix and
Seattle markets, Supplier agrees to provide the project
management services described in Section 7.2.
<PAGE> 13
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* Information omitted and filed separately with the SEC pursuant to request for
confidential treatment under Rule 406 of the Securities Act of 1933, as amended.
Confidential & Proprietary
3.11 The BSS Software provided under this Supply Contract (as
stated in Appendix 1A and the pricing of which is stated in
Appendix 10A) includes * . In the event any BSS Equipment and
Software modifications or any additional BSS Equipment or
Software are required, such modification shall be performed,
or such BSS Equipment or Software shall be supplied, * .
3.12 The software pricing as stated in Appendix 10A shall include *
without any BSS Equipment and Software modifications being
required. In the event any BSS Equipment and Software
modifications or any additional BSS Equipment or Software are
required, such modification shall be performed, or such BSS
Equipment or Software shall be supplied, * .
ARTICLE 4
PURCHASER'S OBLIGATIONS
4.1 The Purchaser shall pay the price of the Equipment, Software
and Services provided by the Supplier in accordance with
Article 5 hereunder.
4.2 Purchaser agrees to provide Supplier with a * of Purchaser's
requirements for Equipment, Software and Services, updated
monthly and prepared in accordance with the forecast
procedures specified in Appendix 6.
The first such forecast has been provided and receipt of same
is hereby acknowledged by Supplier. Purchaser agrees that, in
the aggregate, its Orders (including Orders from Affiliates)
will at least equal the Total Supply Contract Price * . The
lead time for the provision of the Equipment, Software and
Services is specified in Appendix 6. The specified lead times
apply only in case the Equipment, Software and Services have
been subject to the forecast procedure referred to in Appendix
6 or the variances provided for therein. The lead time for
items not included in the forecast shall be subject to
separate agreement; provided, however that Supplier will use
all reasonable commercial efforts to provide such items within
the lead times set forth in Appendix 6.
4.3 The Purchaser shall provide to the Supplier all the
information, in Purchaser's possession, that the Supplier may
reasonably request from time to time and that is necessary for
the proper performance of Supplier's obligations hereunder,
promptly upon request.
4.4 The Purchaser shall obtain all the construction, zoning and
building consents, permits and approvals and operating
licenses necessary for the timely delivery, installation,
testing, commissioning and operation of each System. The
Supplier shall be responsible for obtaining the necessary type
approvals in the United States for the operation of the
Equipment as part of each System. The Supplier
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* Information omitted and filed separately with the SEC pursuant to request for
confidential treatment under Rule 406 of the Securities Act of 1933, as amended.
Confidential & Proprietary
shall manufacture, package, deliver and install all Equipment
and Software and perform all Services in compliance with all
relevant federal, state and local laws and regulations
(including, without limitation, FCC and OSHA) in force on the
date of shipment of such Equipment or Software or provision of
such Services. In addition, Supplier agrees in supplying all
Equipment, Software and Services, that it will comply with all
relevant, generally accepted technical standards in the
industry, unless Supplier reasonably believes that a new
technical standard developed by the industry does not serve
the best interests of Supplier, Purchaser, and the products to
be furnished under this Supply Contract, in which event
Supplier agrees to inform Purchaser of this concern and both
parties agree in good faith to attempt to reach agreement on a
mutually acceptable alternative technical standard.
4.5 The Purchaser shall make available all the required Sites
meeting the site requirements specified in Appendix 9 attached
hereto, as well as access to any standard utility services for
each Site which are necessary to install the Equipment, in
reasonable time to allow for the timely delivery, installation,
testing, commissioning and operation of the Equipment and
Software. Purchaser shall not be required to provide any
customized utility services to Supplier. At each Project
Location, Purchaser agrees to provide Supplier's on-site
employees with * ; provided, however that Supplier shall be
responsible for providing such employees with * . Use of the
Sites and all such facilities by the Supplier for the
performance of its obligations hereunder shall be free of
charge to the Supplier. The Supplier shall have reasonable
access to all Sites and utilities at all reasonable times
(including using reasonable efforts to provide access during
overtime hours, Saturdays, Sundays and holidays).
4.6 Whenever a Site is announced "ready" by Purchaser and handed
over to Supplier, Purchaser also agrees to furnish the
following Site identification information to Supplier: Site
name, number, street address, county where located, legal
description and Site owner's name.
4.7 Both parties agree to have personnel available to each other
who have received training in Supplier's systems training
course, or who are otherwise knowledgeable with respect to
Supplier's systems. Such personnel will be made available by
both parties for purposes of the collaborative activities
contemplated by this Supply Contract, including Site
readiness, Site handover, Site Acceptance and other Site
activities.
ARTICLE 5
PRICE AND PAYMENTS
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* Information omitted and filed separately with the SEC pursuant to request for
confidential treatment under Rule 406 of the Securities Act of 1933, as amended.
Confidential & Proprietary
5.1 Appendices 10A and 10B contain itemized prices for individual
units of Equipment, Software and Services as well as
provisions concerning validity of the prices over time.
Appendix 10C contains additional discounts available to
Purchaser for these items.
5.2 With the exception of Purchaser's Initial Order hereunder, all
Equipment and Software for which Supplier receives Orders
shall be invoiced *. "Delivery" for purposes of this paragraph
shall mean as described in Article 6.1. If Purchaser, an
Affiliate or a * , wishes to develop a new System in a new
market, a payment schedule comparable to the Initial Order
schedule described above will be available to such entity, as
long as at least * base stations are bought for such market
from Supplier, and similar fixed deadlines for each payment
milestone are mutually agreed to..
5.3 Services will be invoiced monthly based on the work completed.
Invoices shall be paid within 30 days of the date of invoice.
5.4 With the exception of the Initial Order described in Article
5.2, all invoices for Equipment and Software shall be paid
within * from the date of invoice. * . In each case, time
periods are measured from the date of Purchaser's receipt of
the invoice (Supplier must fax all invoices to Purchaser, so
that the date of the invoice and the date of Purchaser's
receipt of the invoice are identical).
5.5 Each Party shall designate a person whom the other Party may
contact with respect to all invoicing, pricing and payment
issues, and such person shall have the authority to make
decisions and answer the other Party's questions with respect
to such issues. Purchaser designates * as its initial
designated representative for these purposes. Supplier
designates * as its initial designated representative. Either
Party may designate substitutes or replacements for these
designated representative from time to time, with notice to
the other Party.
5.6 Those additional Services that become necessary due to
Supplier's actions, such as the need to assign additional
installation personnel to make up for time lost or to rectify
the Supplier's errors or omissions in the Supply Contract
work, shall be * .
5.7 All prices are expressed exclusive of any U.S. federal, state
or local sales, transfer and similar taxes levied on account
of sales hereunder. Such taxes and charges shall be invoiced
in addition to the price, if applicable. Purchaser agrees to
provide Supplier with any valid tax exemption certificates
which would permit non-payment of tax and Supplier agrees not
to charge Purchaser any taxes to which such tax certificates
pertain.
<PAGE> 16
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* Information omitted and filed separately with the SEC pursuant to request for
confidential treatment under Rule 406 of the Securities Act of 1933, as amended.
Confidential & Proprietary
5.8 In the event of any delay in payments, Purchaser shall pay
interest on the amount delayed at the prevailing * .
5.9 Prices for Equipment, Software and Services not set forth in
Appendix 10, if not otherwise set forth in this Supply
Contract, shall be * .
5.10 The purchase price for NMS/2000 and BSC Software for each of
the existing networks, which Supplier has provided the BSS
equipment for (meaning Portland and Des Moines), should be
compared to the new price for such Software in Appendix 10A. *
. All future pricing for such Software shall be that which is
set forth in Appendix 10A.
ARTICLE 6
DELIVERY
6.1 All deliveries shall be F.O.B. (as defined in the Uniform
Commercial Code) at the intermediate storage location
designated by the Purchaser. The risk of loss in the Equipment
and Software shall transfer to the Purchaser upon Acceptance
thereof. The title in the Equipment shall transfer to the
Purchaser upon full payment thereof. The title in the Software
shall always remain with the Supplier and/or its licensors,
pursuant to the terms of the Software License attached as
Appendix 13.
6.2 In the event that the Supplier shall not be responsible for
the performance of the implementation Services as set forth in
Paragraph 7.2 below, then the Purchaser shall inspect the
deliveries effected within thirty (30) calendar days of their
arrival to ascertain correct quantities and to record visible
transport damage, if any. In the event of any transport damage
being discovered, the Supplier shall effect replacement
delivery as soon as reasonably possible. In the absence of
manifest error or a written notice from Purchaser to the
contrary within sixty (60) calendar days of the arrival of
each delivery, correct quantities of Equipment and no visible
transport damage shall be deemed to have been effected in
accordance with the documentation issued by the Supplier.
Minor missing items and shortfalls which do not prevent the
erection and installation of the Equipment concerned shall not
render the delivery concerned incomplete for the purposes of
this Supply Contract on condition that the Supplier makes good
such missing items in sufficient time for the proper
installation and testing of the Equipment at the relevant Site
by the Purchaser.
6.3 The time periods applicable to Orders shall be specified in
each such Order, in accordance with the order lead times
specified in Appendix 6 and shall, upon the confirmation of
the Supplier, become incorporated into the Time Schedule which
will be updated from time to time. Supplier is obligated to
confirm receipt or otherwise respond (in accordance with the
terms of this Supply Contract) to any Order received from
Purchaser. Both Parties expressly agree to adhere to said
<PAGE> 17
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* Information omitted and filed separately with the SEC pursuant to request for
confidential treatment under Rule 406 of the Securities Act of 1933, as amended.
Confidential & Proprietary
Time Schedule. Each Party shall, however, be obliged to give
due consideration to any reasonable proposal of the other
Party regarding changes of the Time Schedule which, if agreed
upon, shall be recorded in an amendment of this Supply
Contract in accordance with the provisions of Paragraph 3.6
above.
ARTICLE 7
INSTALLATION
7.1 Supplier and Purchaser have agreed to the implementation
procedures as set forth in Paragraph 3.5 in Appendix 8.
7.2 * .
7.3 Upon completion of the preparation of each Site, a certificate
to that effect shall be signed by the representatives of both
Parties. On that certificate there shall be recorded such
minor discrepancies observed (if any) that do not prevent the
testing and commissioning of the Equipment and Software in
accordance with the requirements of this Supply Contract. If
no certificate is signed by Purchaser due to unavailability or
other reason, the certificate as signed by Supplier will be
deemed accepted once Site has been placed into commercial use
in the market.
7.4 If Equipment and Software can not be tested and commissioned,
even though the electrical and mechanical installation thereof
is substantially complete, the Parties agree to record
evidence of the substantial completion of the installation as
well as the reasons (and the measures to be undertaken by the
responsible Party) for such circumstances.
ARTICLE 8
INSPECTION, TESTING AND ACCEPTANCE
8.1 The testing and quality assurance procedures of the Supplier
at the factory for the Equipment are described in Appendix 11.
The Purchaser shall have the right to be represented at the
factory testing of Equipment. All travel and accommodation
costs of the Purchaser's personnel during such inspection
visits shall be at the cost of the Purchaser. The Supplier
shall provide results of the factory tests of Equipment to the
Purchaser. Supplier agrees, during the term of this Supply
Contract, to keep Purchaser informed of the performance record
of each component and model of Equipment and Software offered
for purchase under this Supply Contract, including all defects
or problems which have occurred with other customers of
Supplier on a recurring basis. To the extent Supplier has
implemented corrective measures in other locations for these
same components
<PAGE> 18
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* Information omitted and filed separately with the SEC pursuant to request for
confidential treatment under Rule 406 of the Securities Act of 1933, as amended.
Confidential & Proprietary
and model, Supplier will inform Purchaser of these corrective
measures and take such measures at its sole cost and expense.
8.2 After completion of installation of each Site by the Supplier,
the Equipment and Software thereat shall be tested by the
Supplier. The Supplier shall notify the Purchaser in writing
not less than * prior to the commencement of such tests. The
Purchaser may, in respect of repeat deliveries of Equipment
and Software identical to items earlier delivered, waive the
performance of these tests in which case such Equipment and
Software shall become accepted, upon putting into commercial
service or, in the absence of written notice of rejection
given prior to the time limits hereinafter specified, thirty
(30) calendar days after completion of installation or * after
delivery, whichever occurs first.
8.3 The program of tests to be conducted in respect of each type
of Equipment is specified in Appendix 11 attached hereto.
8.4 The tests shall be carried out within the periods specified in
Appendix 11 from the date specified in the Supplier's notice
referred to in Paragraph 8.2 above. Upon achieving
satisfactory results of such tests, the Parties shall issue a
Certificate of Acceptance within * of the completion of the
tests in respect of the Site concerned. In the event that the
Purchaser's representative is not present at such tests, the
Certificate of Acceptance shall be issued by the Supplier on
the basis of the Supplier's test report. Minor deficiencies or
discrepancies which do not either prevent satisfactory
commercial operation of the Equipment and Software or result
in an absence of functionality materially affecting (a)
service quality, (b) service functionality, or (c) operations
and/or maintenance, shall not prevent the issuance of the
Certificate of Acceptance. Such deficiencies and discrepancies
shall be recorded in a separate document attached to the
Certificate of Acceptance, together with the corrective action
(and timeframes applicable to such action, which normally
shall not exceed 30 (thirty) days) to be taken by the
Supplier. The Supplier shall use its diligent efforts to cure
all of the deficiencies and discrepancies so recorded.
8.5 In the event that the Equipment and Software at the Site
concerned does not satisfactorily pass the tests, the Supplier
shall rectify the defects as promptly as practicable and the
procedure referred to above in this Article shall be repeated
as many times as is necessary.
8.6 If the Equipment and Software cannot be fully tested because
of reasons not primarily attributable to the Supplier, all
those tests that may be performed shall be carried out,
complemented by such alternative tests (such as simulated
transmission loops) as are possible in the circumstances.
Unless defects that are sufficient grounds for rejection of
Acceptance are discovered, the Equipment and Software
concerned shall be accepted and a Certificate of Acceptance
shall be
<PAGE> 19
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* Information omitted and filed separately with the SEC pursuant to request for
confidential treatment under Rule 406 of the Securities Act of 1933, as amended.
Confidential & Proprietary
issued on condition that the missing tests, if any, shall be
carried out at a later date and the defects that may then be
discovered shall be subject to the Supplier's warranties to
the extent provided in Article 9 below.
8.7 Acceptance of Equipment and Software that is put to commercial
use shall be deemed to have occurred regardless of whether
such Equipment and Software has become tested in accordance
with the foregoing provisions or not and regardless of the
results of any such tests. Commercial use shall be deemed to
have occurred for these purposes when the Purchaser's
customers are being serviced (except for testing purposes) or
are being charged for service which utilizes the Equipment. A
Certificate of Acceptance shall, in these cases and in any
cases where the Purchaser has failed to do so in accordance
with the foregoing provisions, be issued accordingly by the
Supplier without prejudice to the Supplier's obligation to
remedy defects under warranty or to complete agreed testing at
a later date.
ARTICLE 9
WARRANTIES, MAINTENANCE AND TECHNICAL SUPPORT
9.1 Supplier warrants that the Equipment will be new, unused
(except for testing required under this Supply Contract) when
delivered and, subject to the provisions of this Article 9,
will be free from defects in materials and workmanship and
will substantially conform with and perform the functions set
forth in the Specifications during the warranty period of * .
The warranty period for each item of Equipment will begin
either * , whichever date is earlier (the "Warranty Period").
Repaired or replaced units and subassemblies shall have a new
Warranty Period of * from date of delivery to the Purchaser *.
The Supplier further warrants that all Services furnished
under this Supply Contract shall be performed in a
professional and workmanlike manner and shall be free from
defects in materials and workmanship during the Warranty
Period. If defects in material or workmanship or nonconformity
with Specifications appear within the Warranty Period, then
the Supplier shall as promptly as practicable, at its own
expense, repair or replace, at Supplier's own option, any such
defective Equipment or redo such faulty Services. Subject to
the terms of this Supply Contract, the warranties shall
equally apply in the event that the installation of the
Equipment is performed by, or on behalf of, the Purchaser.
9.2 * .
9.3 The Purchaser shall carry out the necessary work to identify
and locate the defect. Supplier shall provide Purchaser, under
appropriate confidentiality and non-disclosure precautions,
with the current specifications and schematic drawings of each
BTS model sold to Purchaser by Supplier. Supplier agrees to
provide reasonable technical assistance for such fault-finding
work upon request.
<PAGE> 20
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* Information omitted and filed separately with the SEC pursuant to request for
confidential treatment under Rule 406 of the Securities Act of 1933, as amended.
Confidential & Proprietary
9.4 The Purchaser shall arrange, at its own cost, the return
shipment of the defective part, subassembly or unit (if
applicable) to the facility in the United Sates therefor
designated by the Supplier, together with the appropriate
documentation required for such shipment and return shipment
thereof. The Supplier shall bear the costs of shipment of the
repaired or replaced unit to the Purchaser. The
re-installation of the repaired or replacement part,
subassembly or unit shall be performed by the Purchaser.
9.5 The Purchaser shall notify the Supplier in writing of each
defect discovered in the Equipment promptly upon its
occurrence but in any event not later * after it has been
discovered. The Purchaser shall provide the following
information in each notice:
(a) identification of the location of the Equipment;
(b) identification of the Equipment (type, serial number,
date of delivery and commissioning);
(c) description of the defect;
(d) identification, if known, of the source of the
defects; and
(e) identification, if known, of the defective
subassembly, if applicable.
The Purchaser shall promptly provide any additional
information known to Purchaser concerning the defect and its
occurrence that the Supplier may reasonably request.
9.6 The warranties of the Supplier under this Article 9 are valid
only on condition that:
(a) the Purchaser has acted substantially in conformity
with these warranty terms;
(b) the Equipment has not been modified or repaired by
any unauthorized party or using any unauthorized
parts, subassemblies or software without the prior
written consent of the Supplier, which consent shall
not be unreasonably withheld.
<PAGE> 21
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* Information omitted and filed separately with the SEC pursuant to request for
confidential treatment under Rule 406 of the Securities Act of 1933, as amended.
Confidential & Proprietary
9.7 The warranties of the Supplier under this Article 9 do not
cover:
(a) components which are normally consumable or
perishable in operation such as lamps, fuses etc.;
(b) any defects arising out of or in connection with any
improper handling or use, due to no fault of the
Supplier, its employees, representatives, agents or
subcontractors, or by external reasons, such as (but
not limited to) excessive physical force, water or
humidity and other detrimental environmental or
operating conditions beyond the limits specified for
each item of Equipment in the Specifications;
(c) electromagnetic interference beyond the limits set
forth in the technical appendices or malfunctions of
interconnected equipment;
(d) damage to property or equipment other than the
Equipment itself; or
(e) damage due to the Equipment not having been
transported, stored, installed and operated, by a
party other than the Supplier, its employees,
representatives, agents or subcontractors ,
substantially in accordance with the instructions and
specifications of the Supplier.
9.7A Notwithstanding the foregoing, if the Purchaser requests the
Supplier to repair any Equipment or component thereof which
has been damaged as a result of any of the events set forth in
Paragraphs 9.6 and 9.7 above, then the Supplier agrees to use
its reasonable efforts to repair or replace such Equipment or
component thereof and cure such defects and shall charge the
Purchaser the Supplier's standard rates for such services.
9.8 The Parties acknowledge that all warranties with respect to
Software included within this Supply Contract shall be as set
forth in a separate software license agreement to be entered
into between the Purchaser and the Supplier in the form of
Appendix 13.
9.9 Each Party hereto shall hold harmless and indemnify the other
Party for any and all liability arising from any accident or
injury to any person or property arising out of the errors,
omissions and other actions of that Party or its employees,
servants and agents and those of its subcontractors engaged in
the activities connected with this Supply Contract, provided
that the Party claiming such indemnity shall immediately
notify the other Party and afford the other Party with every
possibility (at such other Party's option and expense) to
defend against or otherwise dispose of or settle in its
discretion any claim thereof (with respect to which the Party
claiming indemnity shall give the other Party all reasonable
assistance and will not by any act or omission do anything
which may directly or
<PAGE> 22
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* Information omitted and filed separately with the SEC pursuant to request for
confidential treatment under Rule 406 of the Securities Act of 1933, as amended.
Confidential & Proprietary
indirectly prejudice such other Party in connection
therewith). The Supplier hereby confirms that its potential
liability under this Paragraph is sufficiently covered by
insurance. The Purchaser shall take all reasonable measures,
whether or not proscribed by applicable law, to prevent access
of unauthorized persons to the Sites where Equipment is
installed and operated and to install proper warning signs
outside such Sites until the title is transferred to the
Purchaser.
9.10 THE AFORESAID WARRANTIES ARE EXPRESSLY IN LIEU OF ALL
WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT
LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR OF
FITNESS, EACH OF WHICH ARE HEREBY DISCLAIMED.
9.11 The Supplier covenants that it is willing to provide
maintenance and support services to the Purchaser for the
Equipment and Software incorporated in the System for a period
of * from the date hereof. Such services shall be subject to
concluding a separate contract between the Parties in the form
of Appendix 14. Purchaser may order this at any time or from
time to time as Purchaser deems appropriate as long as the
service is ordered for a minimum of one year at a time.
9.12 The Supplier covenants that spare parts or functionally
equivalent replacement or expansion parts, within the limits
of the Specifications, shall be available to the Purchaser, at
prices and other conditions generally offered by the Supplier
and its Affiliates, for a period of * from the date hereof.
The Supplier may, at any time, cease production or purchase,
as the case may be, of any part of the Equipment; provided,
however, that the Supplier shall maintain a sufficient
inventory of such discontinued Equipment to meet the
Supplier's obligations under this Paragraph 9.12. The Supplier
shall notify the Purchaser of Supplier's intent to discontinue
production or purchase, as the case may be, specifying the
approximate number of such parts the Supplier then has in
inventory, * in advance of the final production run or
purchase to allow the Purchaser to purchase any additional
parts it may desire for inclusion in said final production run
or purchase.
In the event that the Supplier ceases production of such
parts, and in the absence of any compatible alternative
solution provided by the Supplier, the Supplier shall, upon
Purchaser's written request, deliver to the Purchaser such
drawings, specifications, special tooling and information as
may be necessary to manufacture or cause to be manufactured
any part of the Equipment as to which the Supplier has
notified the Purchaser of cessation of manufacture, provided
however, that such information is reasonably available to the
Supplier and transferable to the Purchaser without
restrictions from third parties, together with a
non-exclusive, non-transferable (except in the event that this
Supply Contract is
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* Information omitted and filed separately with the SEC pursuant to request for
confidential treatment under Rule 406 of the Securities Act of 1933, as amended.
Confidential & Proprietary
transferred to a third party pursuant to Paragraph 16.4),
royalty-free license to make, use, or have made, any such part
or Equipment exclusively for the purpose of operating,
expanding and maintaining any System of the Purchaser, its
Affiliate or *, and not for any other purpose, to the extent
the Supplier is able to grant such a license. Any such
information furnished hereunder shall be subject to the
restrictions set forth in Article 13.
9.13 In addition to the warranties set forth herein, if Supplier
purchases or subcontracts for the manufacture of any part of
the Equipment or the performance of any of the Services to be
provided hereunder from any other person, the warranties given
to the Supplier by such other person shall inure to the
benefit of Purchaser, and Purchaser shall have the right to
enforce such warranties through Supplier. Such warranties,
when available, shall be in addition to and not in lieu of any
warranties given by the Supplier under this Supply Contract.
9.14 It is the intention of the Parties hereto that any problem,
defect or failure in any System (including, without
limitation, those relating to interference) which
detrimentally prevents satisfactory commercial operation of
the System or results in an absence of functionality
materially affecting (a) service quality, (b) service
functionality, or (c) operations and/or maintenance
("Emergency") shall be corrected as promptly as practicable
and reasonable in the circumstances regardless of fault and in
this regard the Supplier agrees to use all reasonable efforts
to work with and cooperate with the Purchaser and any other
vendor or contractor to Purchaser to correct any such problem,
defect or failure. If the Purchaser and the Supplier disagree
as to the cause of the problem, defect or failure, or the
action to be taken, at Purchaser's request, the Supplier shall
nevertheless correct any problem, defect or failure in the
System (whether or not such problem, defect or failure is the
responsibility of the Supplier) as promptly as practicable and
bill the Purchaser for such; provided, however, that the
Supplier shall not be required to repair or modify any
equipment purchased by the Purchaser from a third party. The
Parties shall thereafter negotiate in good faith to determine
whether such problem, defect or failure was the responsibility
of the Supplier (including its employees, representatives,
agents, or subcontractors) or any other party. If determined
that such problem, defect or failure was not the
responsibility of the Supplier (including its employees,
representatives, agents or subcontractors), the Supplier shall
charge the Purchaser the Supplier's standard rates for such
service.
9.15 The Supplier shall, at its sole cost and expense, cause to be
maintained at all times during the term of this Supply
Contract the following insurance:
(a) Worker's Compensation insurance in the form and
amount prescribed by law of the state in which Services
are performed; and
<PAGE> 24
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* Information omitted and filed separately with the SEC pursuant to request for
confidential treatment under Rule 406 of the Securities Act of 1933, as amended.
Confidential & Proprietary
(b) Employer's liability insurance with limits of at
least $ * for each occurrence; and
(c) Comprehensive general liability insurance with a
broad form endorsement which includes, but is not limited
to, coverage for products liability, personal injury,
broad form property damage, coverage for completed
operations, and contractual liability, with respect to
the liability assumed by the Supplier hereunder. Limits
will not be less than $ * combined single limit for each
occurrence; and
(d) Umbrella liability insurance with limits of at least
$ * for each occurrence.
9.16 All of Supplier's products delivered under this Supply
Contract will be made Millennium compatible and are covered by
Supplier's standard warranty provisions hereunder. "Millennium
compatible" for these purposes will mean that the product will
record, store, process and present calendar dates falling on
or after January 1, 2000, in substantially the same manner,
and with substantially the same functionality as such product
handled calendar dates falling on or before December 31, 1999,
and that such product will do so without material interruption
and with no material ambiguity as to century.
ARTICLE 10
DELAYS, DAMAGES AND TERMINATION
10.1 * .
10.2 In the event that the Supply Contract work is prevented or
impeded by reasons not attributable to the Supplier, its
employees, agents, representatives or subcontractors, then the
applicable time periods contained in the Time Schedule shall
be extended (without prejudice to other possible consequences
under this Supply Contract) correspondingly.
10.3 NOTWITHSTANDING ANY OTHER PROVISION OF THIS SUPPLY CONTRACT,
NEITHER PARTY (NOR ITS AFFILIATES) SHALL UNDER ANY
CIRCUMSTANCES BE LIABLE FOR ANY SPECIAL, INDIRECT,
CONSEQUENTIAL OR INCIDENTAL DAMAGES OR LOST PROFITS, LOST
OPPORTUNITIES, LOST REVENUES OR DAMAGES ARISING FROM LOSS OF
USE HOWSOEVER ARISING UNDER OR IN CONNECTION WITH THIS SUPPLY
CONTRACT AND THAT THE SUPPLIER'S (AND ITS AFFILIATES')
LIABILITY FOR BREACH OF WARRANTY HEREUNDER SHALL BE STRICTLY
LIMITED TO, IN THE SUPPLIER'S DISCRETION, REPAIR OR
REPLACEMENT OF THE NON-
<PAGE> 25
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* Information omitted and filed separately with the SEC pursuant to request for
confidential treatment under Rule 406 of the Securities Act of 1933, as amended.
Confidential & Proprietary
CONFORMING GOODS OR PARTS THEREOF OR THE REPAYMENT OF AMOUNTS
THERETOFORE PAID WITH RESPECT THERETO. Nothing in this
paragraph 10.3 is intended to limit, modify or rescind the
provisions of paragraph 10.1 * or paragraph 14.2 (trade
infringement indemnity).
10.4 In the event that a Party is in default of a material
obligation under this Supply Contract (other than a payment
obligation) and fails to remedy (or, as applicable, to take
sufficient action to remedy) such default within a reasonable
time fixed by the non-defaulting Party (which period shall not
be less than * in a written notice drawing the attention of
the defaulting Party to the default and requiring the same to
be remedied, then the non-defaulting Party shall have the
right to terminate this Supply Contract within * of the expiry
of the period fixed, provided that the period during which the
defaulting Party shall have the right to cure such a default
shall be extended as long as the defaulting Party is
diligently and promptly taking all reasonable actions to cure
such a default. In the event that a Party is in default of a
payment obligation, the terms of the preceding sentence shall
apply except that the reasonable time period to be fixed by
the non-defaulting Party shall not be less than *. In the
event of bankruptcy, receivership or comparable procedure
under applicable law of a Party hereto or in case the default
is not capable of being remedied, then the non-defaulting
Party may terminate this Supply Contract forthwith.
Termination shall apply to such part of the Supply Contract as
remains unperformed unless it would be manifestly unreasonable
to require the terminating Party to retain the part performed
by the defaulting Party.
10.5 In the event that the Purchaser's license to operate any market
which is being deployed with the Supplier's Equipment, Software
or Services is subsequently revoked, then the Purchaser may
terminate this Supply Contract with respect to that market, but
not with respect to any other market being deployed at the
time, if applicable. In such case the Purchaser shall
compensate the Supplier for all Equipment and Software
delivered and Services performed and for all the Equipment
ordered prior to the date of notice to terminate the Supply
Contract, provided however that the Supplier has commenced the
manufacture of the same, and provided further that the Supplier
can not reasonably dispose of the same with other customers. In
any such case the Purchaser's commitment with respect to the
Total Supply Contract Price shall be proportionately reduced
based on the value of the markets being deployed and canceled.
ARTICLE 11
FORCE MAJEURE
11.1 Neither Party shall be liable to the other for any delay or
non-performance of its obligations hereunder in the event and
to the extent that such delay or non-performance is due to an
event of Force Majeure (as hereinafter defined).
<PAGE> 26
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* Information omitted and filed separately with the SEC pursuant to request for
confidential treatment under Rule 406 of the Securities Act of 1933, as amended.
Confidential & Proprietary
11.2 The following events shall be recognized as events of Force
Majeure:
War, civil unrest, strikes, lock-outs and other general labor
disputes, acts of government, natural disasters, exceptional
weather conditions, breakdown or general unavailability of
transport facilities, accidents, fire, explosions, and general
shortages of energy, materials and components, and other
similar events, in each case which are beyond the control of
the Party and which occur after the date of signing of this
Supply Contract and which were not reasonably foreseeable at
the time of signing of this Supply Contract and whose effects
are not capable of being overcome without unreasonable expense
to the Party concerned.
11.3 Each Party shall inform the other Party of the occurrence of
any event of Force Majeure, its expected duration and
cessation, respectively without delay.
11.4 In the event that performance of Supply Contract work becomes
substantially suspended as the result of an event of Force
Majeure for a continuous period exceeding *, then the other
Party has the right to cancel the Supply Contract in respect
of the unperformed part of the Supply Contract. The Party
whose performance is affected by Force Majeure shall not incur
any liability to the other Party as a result of cancellation
pursuant to this Paragraph 11.4. For the sake of clarity it is
recorded here that the Party whose performance is so affected
by Force Majeure shall not have the right to cancel this
Supply Contract due to such Force Majeure.
11.5 Delay or non-performance arising in the performance by a
subcontractor of a Party hereto shall be excusable only if the
subcontractor itself would be excused under the foregoing
provisions if said subcontractor had contracted directly with
the Purchaser.
ARTICLE 12
GOVERNMENT REGULATIONS
12.1 Each Party hereto shall be solely responsible for complying
with all applicable legislation or regulations when performing
its activities under or in connection with this Supply
Contract. All Equipment and Software furnished to Purchaser by
Supplier hereunder shall be manufactured in compliance with
applicable Federal Communications Commission rules and
regulations in effect at the time of manufacture and delivery
of the particular item of Equipment or Software.
12.2 Each Party hereto agrees not to export or re-export, as the
case may be, any Equipment or information to any country
without obtaining any licenses and permits that may be
required under any applicable legislation or regulations.
<PAGE> 27
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* Information omitted and filed separately with the SEC pursuant to request for
confidential treatment under Rule 406 of the Securities Act of 1933, as amended.
Confidential & Proprietary
12.3 Without limiting the generality of the foregoing, each Party
shall be responsible for compliance with the applicable tax,
social security and similar regulations applicable to its
activities hereunder. Purchaser will be responsible for any
property taxes levied against the Equipment once delivered to
a PCS Market warehouse. Supplier shall be responsible for any
customs duties or customs taxes on the Equipment and Software
delivered hereunder.
ARTICLE 13
CONFIDENTIALITY
13.1 Each Party (hereinafter the "Receiving Party") shall keep all
Information received from the other Party (hereinafter the
"Disclosing Party") in whatever form as strictly confidential
and shall not disclose it to third parties without the prior
written consent of the Disclosing Party. Information shall not
be used by the Receiving Party for any purpose other than in
connection with the purposes of this Supply Contract or the
operation of the System. The foregoing obligations shall not
apply to any Information which:
(a) is in the public domain at the time of disclosure or
later becomes part of the public domain through no
fault of the Receiving Party;
(b) was known to the Receiving Party prior to disclosure
by the Disclosing Party as proven by the
contemporaneous written records of the Receiving
Party;
(c) is disclosed to the Receiving Party by a third party
who did not obtain such Information, directly or
indirectly, from the Disclosing Party subject to any
confidentiality obligation;
(d) is at any time independently developed by the
Receiving Party as proven by its contemporaneous
written records;
(e) is expressly authorized in writing by the Disclosing
Party; or
(f) is required by law, court order or a governmental
agency to be disclosed (in which case the Receiving
Party will give the Disclosing Party as much notice
thereof as reasonably practicable and which will be
done subject to confidentiality protection to the
extent reasonably available).
13.2 The Parties recognize that each of them is part of an
organization of multiple legal entities in several
jurisdictions and that it may be necessary or appropriate for
<PAGE> 28
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* Information omitted and filed separately with the SEC pursuant to request for
confidential treatment under Rule 406 of the Securities Act of 1933, as amended.
Confidential & Proprietary
each Party to provide Information to its Affiliates. For this
purpose, each Party agrees (both as the Disclosing Party and
as the Receiving Party hereunder) that:
(a) the Receiving Party may disclose Information to an
Affiliate but only to the extent that such Affiliate
has a need to know such Information in order to carry
out the purpose described herein. The Purchaser may
disclose Information to a * only subject to prior
consent of the Supplier which consent shall not be
unreasonably withheld;
(b) disclosure by or to an Affiliate of a Party hereto
shall be deemed to be a disclosure by or to that
Party, as applicable; and
(c) each Party guarantees the observance and proper
performance by all of its Affiliates of the terms and
conditions of this provision.
13.3 Information shall be deemed the property of the Disclosing
Party, and the Receiving Party will, upon receipt of a written
request from the Disclosing Party, return all Information
received in tangible form to the Disclosing Party or destroy
all such Information and all copies thereof or documents
containing Information (except that a single copy may be
retained by counsel for record purposes, to be used only if a
dispute arises which relates to the Information). It is
however agreed that the Purchaser shall have the right to
retain Information necessary for the proper installation,
expansion, operation and maintenance of the System.
13.4 Each Party shall limit access to Information to those of its
employees, representatives, contractors or advisors to whom
such access is reasonably necessary or appropriate for the
proper performance of Supply Contract work or installation,
expansion, operation or maintenance of the System.
13.5 Notwithstanding the foregoing, neither Party shall be liable
to the other for any unauthorized disclosure of Information if
it can be established that it has exercised the same degree of
care in protecting the Information from such disclosure as it
exercises in respect of its own confidential information and
business secrets.
13.6 The provisions of this Article 13 shall bind the Parties for a
period of * from the date of signing of this Supply Contract
or, in respect of every item of Information later disclosed
hereunder, a period of * from disclosure, whichever period is
longer regardless of any earlier termination, cancellation or
completion of this Supply Contract.
ARTICLE 14
INTELLECTUAL PROPERTY RIGHTS
<PAGE> 29
28
* Information omitted and filed separately with the SEC pursuant to request for
confidential treatment under Rule 406 of the Securities Act of 1933, as amended.
Confidential & Proprietary
14.1 Ownership of the copyright and all other intellectual property
rights in all drawings, specifications, manuals, documents,
and data, provided by one Party hereto to the other under this
Supply Contract shall remain with the Party first referred to
above but the receiving Party shall be deemed to have a
non-exclusive royalty-free license (subject to any fees
therefor set forth in Appendix 10A or Appendix 10B) to use
such copyright or other intellectual property rights in
accordance with the terms of this Supply Contract for the
performance of the Supply Contract work as well as for the
operation and maintenance of the System in the United States.
Such license shall not include any right to grant sublicenses
except as set forth in Paragraph 16.4 below. Unauthorized
copying shall be strictly prohibited.
14.2 Subject to the conditions and limitations set forth below, the
Supplier undertakes to defend, at its own expense, and to
indemnify the Purchaser for any cost, loss or damage arising
out of infringement of United States patents, copyrights or
registered designs or other intellectual property rights of
third parties by use of the Equipment or Software for their
intended purposes in any System governed by this Supply
Contract (within the United States), and the Supplier shall
pay all sums, including without limitation, attorneys fees and
other costs which, by final judgment or degree, or in
settlement of any such suit or claim, may be assessed against
the Purchaser on account of such infringement, provided that:
(a) in case of any claim of infringement, the Purchaser
shall promptly notify the Supplier and afford the
Supplier with every possibility to, at Supplier's
option, but with an obligation to find a solution
which will enable the operation of the System
affected by such claim (and at no cost to the
Purchaser) to modify the Equipment or Software so as
to make it non-infringing, provided that such
modified Equipment or Software substantially conforms
to the Specifications and any work to be performed in
conjunction therewith shall, to the extent possible,
be performed during off-hours or otherwise with
minimum interruption of service, to obtain a license
from the owner of the right that is alleged to be
infringed by Equipment or Software and/or to defend
against or otherwise dispose of or settle in its
discretion, but with the obligation to find a
solution that will enable the operation of the
System, the claim of infringement (with respect to
which the Purchaser shall give the Supplier all
reasonable assistance and will not by any act or
omission do anything which may directly or indirectly
prejudice the Supplier in connection therewith); and
(b) the foregoing shall not apply in cases where (and to
the extent that) the claim for infringement is based
on any unauthorized modification of the Equipment or
Software, use of Equipment or Software for purposes
other than that they were designed for or if the
infringement results from compliance by the Supplier
with any part of the specification that is a
<PAGE> 30
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* Information omitted and filed separately with the SEC pursuant to request for
confidential treatment under Rule 406 of the Securities Act of 1933, as amended.
Confidential & Proprietary
requirement which is designed by the Purchaser and
which is not reasonably capable of being complied
with without infringement of the intellectual
property right on which the third party has based its
claim; and
(c) to the extent that a third party makes a claim of
infringement against the Supplier or its Affiliates
engaged in Supply Contract work based on the
exceptions specified in the foregoing subparagraph
(b) above, the Purchaser shall indemnify the Supplier
in respect of any cost, loss or damage arising out of
such action, subject to the same conditions (mutatis
mutandis) as are specified in subparagraph (a) above.
14.3 The use of any Software within the Equipment shall be subject
to a separate license agreement in the form of Appendix 13.
ARTICLE 15
EFFECTIVE DATE
15.1 This Supply Contract becomes effective on the date when this
Supply Contract has been signed by the duly authorized
representatives of both Parties and delivered by each Party to
the other Party.
15.2 This Supply Contract shall remain valid for a period of five
(5) years from the date of signature hereof, unless earlier
terminated pursuant to Paragraph 10.4. 10.5 or 11.4.
ARTICLE 16
GENERAL
16.1 Any and all disputes that may arise between the Parties (and
any claim by a Party against an Affiliate of the other Party)
under or in connection with this Supply Contract shall be
finally settled (together with any counterclaims and any
disputes under or in connection with the Support Services
Agreement or the Software License Agreement) in arbitration by
a single arbitrator, or if no such arbitrator can be
identified, by a panel of three (3) arbitrators, in accordance
with the Commercial Arbitration Rules of the American
Arbitration Association then in effect unless otherwise agreed
by the Parties. The Parties agree to seek to mutually
designate an independent technical expert in the field to act
as the arbitrator of any dispute with respect to technical
issues. In the event that the Parties hereto cannot agree upon
a mutually acceptable arbitrator, then each Party shall
appoint one (1) arbitrator, and such two (2) arbitrators shall
in turn appoint a third arbitrator, and such three (3)
arbitrators shall constitute the panel. In the
<PAGE> 31
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* Information omitted and filed separately with the SEC pursuant to request for
confidential treatment under Rule 406 of the Securities Act of 1933, as amended.
Confidential & Proprietary
event that the two (2) arbitrators appointed by the Parties
are unable to agree on the third arbitrator, then such third
arbitrator shall be appointed by the American Arbitration
Association. Should either Party fail to appoint an arbitrator
and to notify the other Party of such appointment within
thirty (30) days after a demand has been made in writing by
the other Party for such appointment, or should either
arbitrator so appointed decline to serve and no replacement is
appointed within thirty (30) days thereof, then the arbitrator
duly appointed and willing to serve shall be the sole
arbitrator to consider the dispute. The compensation, cost and
expense of single arbitrator, technical expert, or the panel
of the three (3) arbitrators, as applicable, shall be paid by
the Party found to be at fault, as stated in the arbitration
award, unless otherwise determined by the arbitrators to be
reasonable in the circumstances. The arbitration shall be
conducted on a confidential basis in New York, New York in the
English language. The award shall be final and binding on the
Parties and enforceable in any court of competent
jurisdiction. Neither Party shall institute a proceeding
hereunder unless at least sixty (60) days prior thereto such
Party shall have furnished to the other notice of its intent
to do so. Neither Party shall be precluded hereby from seeking
provisional remedies in the courts of any jurisdiction,
including, but not limited to, temporary restraining orders
and preliminary injunctions, to protect its rights and
interests, but such shall not be sought as a means to avoid or
stay arbitration, nor shall either Party be precluded from
pursuing any available remedies with respect to protection of
its Software or Information.
16.2 No failure or delay of either Party in exercising its rights
hereunder (including but not limited to the right to require
performance of any provision of this Supply Contract) shall be
deemed to be a waiver of such rights unless expressly made in
writing by the Party waiving its rights. This Supply Contract
may not be terminated, modified, amended or waived orally but
only through a writing signed by an authorized representative
of the Party against whom it is sought to be enforced. There
are no representations or warranties except as expressly
stated herein.
16.3 Any notice given by one Party to the other shall be deemed
properly given if specifically acknowledged by the receiving
Party in writing or when delivered to the recipient by
certified or registered mail, return receipt requested, or by
confirmed telecopier, or other form of confirmed electronic
transmission, telex transmission, or other form of confirmed
electronic transmission, to the following addresses:
(a) if to the Purchaser, to:
Western PCS Corporation
2001 N.W. Sammamish Road
Issaquah, WA 98027
<PAGE> 32
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* Information omitted and filed separately with the SEC pursuant to request for
confidential treatment under Rule 406 of the Securities Act of 1933, as amended.
Confidential & Proprietary
Attention: Executive Director of Legal Affairs
Fax: 425/313-7960
with a copy to:
Western PCS Corporation
3650 131st Avenue S.E., #400
Bellevue, WA 98006
Attention: Vice President, Engineering
Fax: 425/586-8814
with a copy to:
Rubin Baum Levin Constant & Friedman
30 Rockefeller Plaza
New York, NY 10112
Attention: Mr Barry A. Adelman
Fax: 212/698-7825
(b) if to the Supplier, to:
Nokia Telecommunications Inc.
6000 Connection Drive
Irving, Texas 75039
Fax: 972/894-5811
Attention: Chief Legal Officer
with a copy to:
Nokia Telecommunications Inc.
6000 Connection Drive
Irving, Texas 75039
Fax: 972/894-6009
Attention: Account Manager, Western Wireless
or to such other address or addresses as a Party shall
designate by notice given in such manner to the other Party.
16.4 Neither Party shall assign or transfer to any third party,
without the prior written consent of the other Party, this
Supply Contract or any of its share or interest therein. Such
consent shall not be unreasonably withheld in case of
assignment to an Affiliate of the assigning Party, on
condition that the assigning Party shall remain fully
responsible towards the other Party for the proper fulfillment
of this Supply Contract.
<PAGE> 33
32
* Information omitted and filed separately with the SEC pursuant to request for
confidential treatment under Rule 406 of the Securities Act of 1933, as amended.
Confidential & Proprietary
Notwithstanding the beforesaid, in the event that the
Purchaser transfers its assets in any PCS Market which deploys
the Supplier's Equipment to another entity which shall take
over the ownership and operation of that market, then the
Purchaser shall be entitled to assign the Purchaser's rights
under this Supply Contract to such party with respect to such
market, provided however, that the party in question agrees in
writing to be bound by the terms and conditions of this Supply
Contract and any associated agreements then in effect between
the Parties, and that the Supplier is reasonably satisfied of
the creditworthiness of such party and its ability to fulfill
the terms and conditions of this Supply Contract and the other
agreements then associated therewith. It is however expressly
agreed that such assignment shall not extend to any
indebtedness of the Purchaser. In the event of an authorized
assignment as described above, purchases made by such Assignee
shall be applied against the Total Supply Contract Price.
Any assignment in violation of the foregoing shall be null and
void.
16.5 The relationship between the Supplier and the Purchaser during
the term hereof shall be solely that of vendor and vendee; the
Purchaser, its agents, employees, representatives or
Affiliates shall under no circumstances be deemed agents or
representatives of the Supplier or its Affiliates, nor shall
the Supplier, its agents, employees, representatives or
Affiliates under any circumstances be deemed agents or
representatives of the Purchaser or its Affiliates, and the
Purchaser and its agents, employees, representatives or
Affiliates shall have no right to enter into any contracts or
commitments in the name of or on behalf of the Supplier and
its Affiliates, or to bind the Supplier and its Affiliates, in
any respect whatsoever, nor shall Supplier and its agents,
employees, representatives or Affiliates have any right to
enter into any contracts or commitments in the name of or on
behalf of the Purchaser and its Affiliates, or to bind the
Purchaser and its Affiliates, in any respect whatsoever.
16.6 This Supply Contract contains the entire understanding between
the Parties in respect of the subject matter hereof and all
previous correspondence, memoranda, minutes of meetings,
offers, enquiries, leaflets, brochures, agreements (including
without limitation, the Prior Supply Agreement) and other
documents exchanged between the Parties prior to the date of
this Supply Contract shall be canceled and superseded by this
Supply Contract unless, in respect of any particular document,
expressly incorporated herein by reference or as an attachment
hereto. No waiver of any term or condition shall be deemed a
waiver of any such term or condition in the future, unless
such change, amendment, modification or waiver shall be in
writing and signed by authorized representatives. Without
limitation on the foregoing, neither the warranties or the
limitations thereto nor any other term or condition set forth
in this Supply Contract may be changed, amended, modified or
waived as a result of any purchase Order submitted by the
Purchaser nor by the
<PAGE> 34
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* Information omitted and filed separately with the SEC pursuant to request for
confidential treatment under Rule 406 of the Securities Act of 1933, as amended.
Confidential & Proprietary
acceptance of any such purchase Order or by any acknowledgment
thereof submitted by the Supplier. In the event of any
conflict or inconsistency between the terms of any purchase
Order or acknowledgment, the terms and conditions of this
Supply Contract shall control.
16.7 This Supply Contract may be executed in any number of
counterparts, each of which shall constitute an original, but
all of which, when taken together, shall be considered one
document.
16.8 This Supply Contract is governed and interpreted in accordance
with the laws of the state of New York, without regard to its
conflict of laws principles, as if wholly performed therein.
The Parties hereby exclude the application hereto of the
United Nations Convention on Contracts for the Sale of Goods.
16.9 If any provision of this Supply Contract is declared by a
court of competent jurisdiction to be invalid, illegal or
unenforceable, (a) the validity, legality and the
enforceability of the remaining provisions contained herein
shall not in any way be affected or impaired thereby, (b) such
provision shall be substituted by a valid and enforceable
provision as similar as possible to the provision at issue,
which substituted provision shall be effective in the
jurisdiction in which the initial provision was declared to be
invalid, illegal or unenforceable, and (c) such invalid,
illegal or unenforceable provision shall remain in full force
and effect in any jurisdiction in which it is not held to be
invalid, illegal or unenforceable.
IN WITNESS WHEREOF this Supply Contract has been signed by the duly
authorized representatives of each Party hereto.
Western PCS Corporation Nokia Telecommunications Inc.
By: /s/BOB STAPLETON By: /s/JYRKI SALO
------------------------ ---------------------------
Name: Bob Stapleton Name: Jyrki Salo
---------------------- -------------------------
Title: President Title: President
--------------------- ------------------------
Date: March 9, 1998 Date: March 9, 1998
<PAGE> 1
EXHIBIT 10.72
NOKIA
PURCHASE AND SALE AGREEMENT
THIS AGREEMENT is hereby made on this 9th day of March, 1998 by and
between Nokia Mobile Phones, Inc. (hereinafter called "NOKIA"), having a place
of business at 6000 Connection Drive, Irving, Texas 75039; and Western PCS
Corporation (hereinafter called "WESTERN") having a place of business at 2001
N.W. Sammamish Road, #100, Issaquah, WA 98027.
RECITALS; OVERVIEW OF TRANSACTION
NOKIA has agreed to make available for purchase by WESTERN and its Affiliates
(including Cook Inlet Western Wireless PV/SS PCS L.P.), certain handsets,
modules and associated accessories for the prices described below. The parties
agree that this Agreement and the Attachments will be amended from time to time
to include all future GSM compatible and dual mode "Products" (defined below)
that NOKIA introduces into the North American market. This is not an exclusive
Agreement for either party -- WESTERN may purchase similar equipment from other
vendors and NOKIA may sell similar equipment to other carriers. This Agreement
is also being entered into simultaneously with an infrastructure supply contract
between Nokia Telecommunications Inc. and Western PCS Corporation; the two
contracts are in part consideration for each other.
1. PRODUCTS, PRICES, QUANTITY.
1.1 NOKIA hereby agrees to sell, and WESTERN hereby agrees to purchase, the
wireless communication terminals which are more fully described in
ATTACHMENT "1" attached hereto and made a part hereof and hereinafter
referred to as the "Handsets". NOKIA further agrees to offer for sale
to WESTERN those certain accessories for the Handsets which are more
fully described in ATTACHMENT "2" attached hereto and made a part
hereof and hereafter referred to as the "Accessories". The Handsets and
Accessories are hereafter collectively referred to as the "Products".
1.2 The prices for the Handsets shall be as set forth in ATTACHMENT "1".
The prices for the Accessories shall be as set forth in ATTACHMENT "2".
From time to time NOKIA may issue revised and restated ATTACHMENTS "1"
or "2" which upon receipt by WESTERN shall be deemed incorporated into
this Agreement and shall supersede the then existing ATTACHMENT "1" or
ATTACHMENT "2" as applicable. Notwithstanding the foregoing, NOKIA
shall not increase the price of any Products without the prior written
approval of WESTERN.
1
* Information omitted and filed separately with the SEC pursuant to request for
confidential treatment under Rule 406 of the Securities Act of 1933, as amended.
<PAGE> 2
1.3 All GSM and dual mode GSM/AMPS handsets sold to WESTERN will be
configured with embedded software so as to function only with a SIM
supplied by WESTERN (SIM lock), unless otherwise specifically requested
by WESTERN. More information about the SIM lock software are included
in the WINLOCK USER's GUIDE in ATTACHMENT "7" and the WINLOCK USER'S
GUIDE APPENDIX: OPENING SIM LOCKS, in ATTACHMENT "8".
1.4 * If NOKIA fails to meet this requirement, then WESTERN may return any
discontinued Product (and if the Product is a handset, all related
accessories) on hand at the time of the notice or any time thereafter
for a full refund.
1.5 * The prices stated previously do not include the cost of the dual mode
module. The tentative release date for this handset is * , and Nokia
will exercise reasonable commercial efforts to meet such date.
*
1.6 NOKIA agrees to use reasonable commercial efforts in the development
and sale of a * .
1.7 *.
A. *.
B. *.
C. *.
D. *.
E. *.
F. *.
1.8 *
2. PURCHASE ORDERS AND FORECASTS.
2.1 All orders for Products must be accompanied by a purchase order from
WESTERN to NOKIA. Specific purchase orders shall specify the type and
quantity of Products ordered, unit and extended pricing as well as
desired shipping schedule and ship-to instructions. Acknowledgment of
receipt of purchase orders shall not constitute acceptance.
2.2 Each month during the term of this Agreement, WESTERN will provide
NOKIA with * . The purpose of the Forecast is merely to assist NOKIA in
maintaining an orderly
2
* Information omitted and filed separately with the SEC pursuant to request for
confidential treatment under Rule 406 of the Securities Act of 1933, as amended.
<PAGE> 3
production flow so that WESTERN's delivery requirements can be met.
"Forecast" means a *.
WESTERN may change the shipping destination within * of the requested
ship date. In addition to the specific time frames set forth above,
NOKIA will exercise reasonable commercial efforts to fill orders and
accommodate change requests which do not meet the specific time
parameters set forth above.
2.3 *.
2.4 The minimum order quantity shall be three hundred ninety (390) Handsets
per each ship-to address on an order (except for any Handset with a
unit price above $500, for example the Communicator 9000i). The minimum
order value for Accessories shall be One Thousand and 00/100 USD
($1,000.00) per each ship-to address on an order.
2.5 *.
3. PACKING AND SHIPMENT.
3.1 The Handsets shall be packed in bulk in accord with NOKIA's standard
bulk product packaging procedures, which procedures are subject to
reasonable changes from time to time upon notice from NOKIA to WESTERN.
Any WESTERN request for different or additional packing and fulfillment
services shall be subject to NOKIA's reasonable approval and mutual
agreement as to any increases in prices related to the provision of
such services.
3.2 All shipments will be made F.O.B. destination on NOKIA's designated
freight carrier with freight charges to be borne by WESTERN (these
freight charges will be added to the relevant invoice, to be paid by
WESTERN). NOKIA will bear the risk of loss to the destination and
arrange for and absorb the cost of insurance to cover such shipments.
Any claims of visible, shipment-related loss or damage concerning the
Products shipped to WESTERN or drop-shipped for WESTERN must be
reported to NOKIA within * of delivery. NOKIA will make reasonable
efforts to expedite shipments which are expected to be delayed if
shipped through normal channels, with the costs of such expediting to
be the responsibility of NOKIA, unless caused by the actions of
WESTERN.
3.3 If WESTERN designates their own freight forwarder of WESTERN then the
shipment will be F.O.B. Fort Worth with freight charges to be borne by
WESTERN ("freight collect"). WESTERN shall bear the risk of loss
relating to such shipments. It shall be WESTERN's sole responsibility
to procure insurance for each such shipment in an amount to cover the
replacement cost of the shipment. WESTERN will provide proof of
insurance to NOKIA upon request. In the event WESTERN discovers
shortages or damages related to the shipment WESTERN will be solely
responsible to file necessary claims and pursue recovery from its
insurer. NOKIA
3
* Information omitted and filed separately with the SEC pursuant to request for
confidential treatment under Rule 406 of the Securities Act of 1933, as amended.
<PAGE> 4
agrees to reasonably cooperate with WESTERN in furnishing information
WESTERN needs to file such shipment-related insurance claims. Provided
the bill of lading is in order indicating the proper number of
undamaged cartons (weighing the proper number of pounds) were placed
into the hands of WESTERN's designated freight carrier, NOKIA shall not
be required to replace such lost or damaged goods nor shall WESTERN be
entitled to deduct the value thereof from the payment of the
corresponding invoice as NOKIA shall not have any insurance covering
such shipments.
3.4 If WESTERN requests that any of the Products be drop-shipped to
separate locations, such instructions and authorization must be
submitted to NOKIA in writing. The number of drop-ship locations
specified by WESTERN may not exceed * .
3.5 * .
3.6 NOKIA hereby offers packaging of individual units for * per unit (which
covers the cost of the box and labor associated with inserting the
unit, literature and standard accessories).
4. CREDIT AND PAYMENT.
4.1 The terms of payment shall be net due thirty (30) days from date of
invoice. NOKIA shall invoice WESTERN for the Products at the time of
shipment. But penalties for late payments will not accrue until sixty
(60) days after date of invoice (see Section 4.3).
4.2 WESTERN shall have an initial credit line under this Agreement of *.
NOKIA shall determine in its reasonable discretion from time to time
the credit line which is to be available to WESTERN. NOKIA may withhold
the granting of credit if WESTERN has not paid its undisputed invoices
to NOKIA within 60 days. If NOKIA withholds the granting of credit (or
additional credit as the case may be) for any reason WESTERN may
continue to order and receive Products on a "cash in advance" basis.
4.3 WESTERN shall pay NOKIA interest at the rate of one and one-half
percent (1-1/2%) per month (pro rated for any partial months) on all
late payments. Payment will be considered late if not received within *
of date of invoice.
4.4 WESTERN shall be responsible for all taxes, fees or other charges
imposed by any governmental entity arising with respect to the sales of
Products and accessories to WESTERN, except any taxes that may be based
on NOKIA's net income or any import duties incurred by NOKIA in
bringing the Products into the U.S.. All amounts due NOKIA hereunder
shall be net of any such charges. If WESTERN provides NOKIA with
appropriate documentation confirming exemption to sales taxes NOKIA
agrees not to invoice for sales taxes, on any applicable transactions.
4
* Information omitted and filed separately with the SEC pursuant to request for
confidential treatment under Rule 406 of the Securities Act of 1933, as amended.
<PAGE> 5
4.5 Unless expressly stipulated to the contrary, all rebates, credits,
co-ops or accruals which may from time to time be due from NOKIA to
WESTERN either pursuant to the terms of this Agreement, or under any
special or promotional programs which the parties may agree upon during
the term hereof, shall be paid to WESTERN in the form of an open credit
memo which WESTERN may use towards payment of any outstanding amounts
owed to NOKIA. If at the end of the term of this Agreement, WESTERN has
any remaining open credit memos or portions thereof and shall not owe
any additional sums to NOKIA, WESTERN may endorse and return such open
credit memos to NOKIA in exchange for a cash payment in the amount of
such open credit memos. Such payment will be made within thirty (30)
days.
5. CO-OP ADVERTISING ACCOUNT; SPECIAL MARKETING ACCOUNT.
5.1 NOKIA agrees to make a co-op advertising program available to WESTERN
in accord with the terms and conditions set forth in ATTACHMENT "4"
attached hereto and made a part hereof which terms and conditions are
subject to reasonable changes from time to time upon notice from NOKIA
to WESTERN. WESTERN may use the available balance in such account for
advertising and promotion in accord with the provisions of ATTACHMENT
"4".
5.2 *.
6. PRICE PROTECTION.
6.1 *.
6.2 *.
6.3 *:
6.3.1 *.
6.3.2 *.
6.3.3 *.
6.3.4 *.
6.4 *:
6.4.1 *.
6.4.2 *.
5
* Information omitted and filed separately with the SEC pursuant to request for
confidential treatment under Rule 406 of the Securities Act of 1933, as amended.
<PAGE> 6
6.4 *.
7. TERRITORY AND TRANSSHIPMENT.
7.1 Except as otherwise provided herein, WESTERN is authorized to resell
Products purchased under this Agreement to end-users only if carrying the
"Voice Stream" brand (or other WESTERN-owned or licensed brand) and only
in those certain cellular geographical statistical areas, major trading
areas and/or basic trading areas in which WESTERN, its "Affiliate" or a *
is a system operator or system manager. The foregoing area shall be
referred to as the "Territory". The right to resell into any Territory
will also be contingent on WESTERN, its Affiliate or * continuing to be a
"carrier" as that term is commonly used in the telecommunications
industry.
7.2 During the term of this Agreement, WESTERN shall not transship, sell, or
otherwise transfer the Products outside the Territory. *. Further, except
as set forth above, WESTERN shall not knowingly sell, or continue to
sell, the Products to any other person or entity who intends to
distribute the Products outside the Territory. WESTERN for these purposes
will include Affiliates.
7.3 NOKIA agrees that, when commercially reasonable, it will include WESTERN
in its pre-launch testing of new or next generation products, with at
least * advance notice to WESTERN. In such cases, NOKIA agrees to deliver
*.
7.4 *.
7.5 NOKIA agrees to keep WESTERN reasonably apprised of its current and
planned revisions to software and hardware for its Products, including,
if reasonably feasible, quarterly reports showing current and planned
software and hardware revisions for all models, current functionality
issues affecting current models, any planned fix dates for software or
hardware problems, and a monthly summary of quantities shipped each month
to WESTERN.
8. WARRANTY, RETURNS, SERVICE.
8.1 NOKIA warrants the Products to WESTERN, its purchasers and to end-users
according to the applicable limited warranty documentation that
accompanies the Products, a copy of which is included in Attachment 5.
8.2 Warranty returns shall be subject to NOKIA's reasonable repair and
return policies in effect from time to time. If no-fault-found Handset
returns directly from WESTERN exceed * of all returns from WESTERN then
WESTERN will * pay per each no-fault-found Handset in excess of the *
threshold that have been returned to NOKIA for warranty repair. NOKIA
agrees to give WESTERN reasonable notice before imposing this fee on
no-fault found Handsets. NOKIA also agrees to provide regular reports
of the aggregate types of Handset problems encountered and repaired
received by NOKIA from WESTERN's markets (limited to those Products
6
* Information omitted and filed separately with the SEC pursuant to request for
confidential treatment under Rule 406 of the Securities Act of 1933, as amended.
<PAGE> 7
which are clearly identified as WESTERN's with the VoiceStream brand or
otherwise). The parties agree to reasonably cooperate with each other
in the investigation of no-fault found units, particularly in
situations where one party has identified a defect but the other party
has found no defect.
8.3 WESTERN shall comply with NOKIA's reasonable procedures related to the
tracking of in-bound returned Products and accessories.
8.4 NOKIA agrees to offer for sale to WESTERN functionally equivalent
replacement and repair parts for Handsets and "Standard Kit
Accessories" (defined herein) until the later of: (i) five (5) years
after the last delivery of Handsets hereunder; or (ii) the period of
time required by applicable law. "Standard Kit Accessories" for these
purposes shall mean the battery, rapid travel charger, warranty card
and owner's manual that are included with the Handset in a standard
sale to end-users.
8.5 *.
8.6 WESTERN shall not modify the Products in any manner without NOKIA's
written consent. WESTERN will not in any manner modify, remove or alter
the documentation accompanying the Products, without NOKIA's written
consent. If WESTERN adds any additional documentation to accompany the
Products, WESTERN shall indemnify and hold harmless NOKIA for any
third-party claims related to any information contained within the
additional documentation which contradicts any information contained in
NOKIA's User's Manual.
8.7 Unless prohibited by law, WESTERN agrees not to knowingly sell
non-NOKIA approved accessories with NOKIA Products in violation of the
Product documentation. WESTERN hereby indemnifies and holds harmless
NOKIA for any claims, liabilities, loss or damage for injury or damage
caused by a non-NOKIA approved accessory, arising out of any sales by
WESTERN in violation hereof, up to a maximum of WESTERN's available
insurance limits (assuming WESTERN maintains insurance limits in
amounts customary in the industry). NOKIA agrees to review and make
reasonable efforts to approve any non-NOKIA accessories, that are
compatible with the Nokia Products offered for sale hereunder. NOKIA
further agrees to provide WESTERN with updated lists of authorized
accessory providers.
8.8 All of NOKIA's Products delivered under this Agreement will be made
Millennium compatible and are covered by the standard warranty
provisions hereunder. "Millennium compatible" for these purposes will
mean that the Product will record, store, process and present calendar
dates falling on or after January 1, 2000, in substantially the same
manner, and with substantially the same functionality as such Product
handled calendar dates falling on or before December 31, 1999, and that
such Product will do so without material interruption and with no
material ambiguity as to century.
9. LIMITATION OF LIABILITY.
7
* Information omitted and filed separately with the SEC pursuant to request for
confidential treatment under Rule 406 of the Securities Act of 1933, as amended.
<PAGE> 8
9.1 NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, NEITHER PARTY
(NOR ITS AFFILIATES) SHALL UNDER ANY CIRCUMSTANCES BE LIABLE FOR ANY
SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES OR LOST PROFITS,
LOST OPPORTUNITIES, LOST REVENUES OR DAMAGES HOWSOEVER ARISING UNDER OR
IN CONNECTION WITH THIS AGREEMENT (INCLUDING LATE DELIVERY). This
provision is not intended to limit, modify or rescind the provisions of
Section 3.5 (late delivery damages) and Section 13 (trade infringement
indemnity).
10. FORCE MAJEURE.
10.1 Neither party shall be liable to the other for any delay or
non-performance of its obligations hereunder in the event and to the
extent that such delay or non-performance is due to an event of Force
Majeure (as hereinafter defined). The following events shall be
recognised as events of Force Majeure: War, civil unrest, strikes,
lock-outs and other general labor disputes, acts of government, natural
disasters, exceptional weather conditions, breakdown or general
unavailability of transport facilities, accidents, fire, explosions,
and general shortages of energy, materials and components, and other
similar events, in each case which are beyond the control of the party
and which occur after the date of signing of this Agreement and which
were not reasonably foreseeable at the time of signing of this
Agreement and whose effects are not capable of being overcome without
unreasonable expense to the party concerned. Each party shall inform
the other party of the occurrence of any event of Force Majeure, its
expected duration and cessation, respectively without delay. The party
whose performance is affected by Force Majeure shall not incur any
liability to the other party as a result of cancellation pursuant to
this Paragraph 10.1. WESTERN may cancel (in writing) the undelivered
portion of any order if the delay due to a force majeure event exceeds
thirty (30) days from the shipment date originally confirmed by NOKIA.
For the sake of clarity it is recorded here that the party whose
performance is so affected by Force Majeure shall not have the right to
cancel this Agreement due to such Force Majeure. Delay or
non-performance arising in the performance by a subcontractor of a
party hereto shall be excusable only if the subcontractor itself would
be excused under the foregoing provisions as if said subcontractor had
contracted directly with the other party. If NOKIA can not ship full
quantities of Products to WESTERN due to a Force Majeure event, NOKIA
agrees to equitably allocate its available quantities between WESTERN
and NOKIA's other customers.
11. TERM AND TERMINATION.
11.1 Unless sooner terminated in accordance with the provisions herein, the
initial term of this Agreement will begin on the effective date hereof
and extend until February 28, 2003 (five years).
8
* Information omitted and filed separately with the SEC pursuant to request for
confidential treatment under Rule 406 of the Securities Act of 1933, as amended.
<PAGE> 9
11.2 Either party has the right to terminate this Agreement if the other
party rejects or fails to perform or observe any of its obligations
hereunder, and such condition is not remedied within thirty (30) days
after written notice is given to the defaulting party.
11.3 Either party has the right to terminate this Agreement, if the other
party assigns this Agreement or any of its rights hereunder. Provided,
however, either party may assign this Agreement to a successor entity
which purchases all or substantially all of the ownership interest or
assets in such party.
11.4 Termination of this Agreement, howsoever caused, shall not terminate
WESTERN's liability to pay for any Products previously shipped to
WESTERN in accordance with Section 2 of this Agreement.
11.5 Sections 3.5 (damages), 8 (warranty), 9 (limitation of liability), 11
(termination), 12 (indemnity for product liability), 13 (indemnity for
infringement), 14 (governing law), 16 (publicity), 17 (trademarks), and
19 (general terms), and any other provisions which by their nature
should survive termination, shall survive termination of this
Agreement. The obligations contained in Section 15 shall survive
termination of this Agreement for two (2) years.
12. INDEMNITY.
12.1 NOKIA agrees to defend and indemnify WESTERN, its affiliates,
customers, subsidiaries, parent company, shareholders, officers,
directors, agents, employees, assigns and successors from and against
any losses, damages, claims, demands, suits, liabilities and expenses
(including reasonable attorney's fees) that arise out the use of the
Products or NOKIA's actions in connection with this Agreement, provided
that: (i) WESTERN notifies NOKIA in writing within thirty (30) days of
the claim; (ii) NOKIA has sole control of the defense and all related
settlement negotiations; and, (iii) WESTERN provides NOKIA with the
assistance, information and authority necessary for NOKIA to perform
its obligations under this Section 12.1; provided always that WESTERN
will not admit liability under any circumstances. Reasonable
out-of-pocket expenses incurred by WESTERN in providing such assistance
will be reimbursed by NOKIA.
13. INDEMNITY FOR INFRINGEMENT, INJUNCTION.
13.1 NOKIA agrees to defend and indemnify WESTERN against any claim that the
Products sold by NOKIA hereunder infringe the intellectual property
rights of third parties provided that: (i) Products are not modified by
WESTERN or by any other party at the direction of WESTERN; (ii) WESTERN
notifies NOKIA in writing within thirty (30) days of the claim; (iii)
NOKIA has sole control of the defense and all related settlement and
licensing negotiations; and, (iv) WESTERN provides NOKIA with the
assistance, information and authority necessary to perform NOKIA's
obligations under this Section 13.1; provided always that WESTERN shall
not
9
* Information omitted and filed separately with the SEC pursuant to request for
confidential treatment under Rule 406 of the Securities Act of 1933, as amended.
<PAGE> 10
admit liability under any circumstances. Reasonable out-of-pocket
expenses incurred by WESTERN in providing such assistance will be
reimbursed by NOKIA.
13.2 If the use or sale of any Products furnished hereunder is enjoined as a
result of any suit, NOKIA at its option and at no expense to WESTERN
shall: (i) obtain for WESTERN the right to use, sell or re-sell said
items or shall (ii) substitute an equivalent product reasonably
acceptable to WESTERN and extend this indemnity thereto, or if (i) or
(ii) cannot be reasonably attained for commercial reasons, NOKIA shall
accept the return of the Products and/or accessories and reimburse
WESTERN the purchase price thereof, less a reasonable charge for wear
and tear.
13.3 WESTERN covenants not to sue and agrees not to assert any of its own
patents, or patents it controls, against NOKIA with respect to any
Products purchased by WESTERN from NOKIA hereunder.
14. GOVERNING LAW, ATTORNEY'S FEES.
14.1 This Agreement shall be governed by, and construed and enforced in
accordance with the laws of New York, without giving effect to conflict
of laws principles.
14.2 Except as set forth in Section 1.7, in the event either party shall at
any time institute any legal action or proceedings of any nature for
the enforcement of this Agreement, or any of the terms and provisions
hereof, the prevailing party in such action or proceeding shall be
entitled to recover all costs, including attorney's fees incurred in
connection therewith, or in connection with appellate proceedings if
said party shall prevail upon appeal.
15. CONFIDENTIALITY.
15.1 Each party shall keep confidential and shall not without the prior
consent in writing of the disclosing party, copy or disclose to any
third party (except Affiliates, and *s on a need-to-know basis) the
content of any documents or information, which is identified as being
confidential and which is acquired from the other party in connection
with this Agreement or the Products. Each party shall copy and use the
same solely for the purpose of this Agreement and the normal use of the
Products.
15.2 The obligations imposed upon either party under Section 15.1 above
shall not apply to information whether or not designated as
"Confidential": (i) which is made public by the disclosing party; (ii)
which the receiving party can reasonably demonstrate is already in the
possession of the receiving party and not subject to an existing
agreement of confidence; (iii) which is received from a third party
without restriction and without breach of this Agreement; (iv) which is
independently developed by the receiving party as evidenced by its
records; (v) which the receiving party is required to disclose pursuant
to a valid order of a court or legal requirements of other governmental
body or any political subdivision
10
* Information omitted and filed separately with the SEC pursuant to request for
confidential treatment under Rule 406 of the Securities Act of 1933, as amended.
<PAGE> 11
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.
15.3 The parties agree that this Agreement (including all exhibits attached
hereto) is confidential and shall not be disclosed to any third party.
15.4 The obligations in this Section 15 shall survive termination of this
Agreement for two (2) years.
16. PUBLICITY.
16.1 WESTERN and NOKIA agree to submit to each other for approval all
publicity matters whenever the other's name is used in connection with
matters pertaining to the relationship established by this Agreement.
17. TRADEMARKS.
17.1 It is expressly agreed and understood that trademarks, trade names,
insignia, etc. (herein "Marks") involving the words "Nokia" or
WESTERN's owned or licensed trademarks ("WESTERN's Marks") are and
shall remain the exclusive property of NOKIA or WESTERN (as applicable)
and that the other party shall have no right to such trademarks and
trade names. All use of Marks involving the words "Nokia" or "WESTERN's
Marks" (as applicable) in the promotion and sale of goods in the
Territory shall be deemed to be inure only for the benefit of the owner
of such Marks. Neither party without the express written consent of the
other shall have the right to use any Marks in the sale, lease or
advertising of any products or on any product container, component
part, sales, advertising or promotional materials. Any approved use of
the Marks shall be in accord with such party's policies governing the
size, typeface and other usage requirements.
17.2 If WESTERN requests that any of the Products are to be sold to WESTERN
bearing any trademark other than the "Nokia" trademark, the terms and
conditions concerning such private labeling of the Products shall be
subject to the mutual written agreement of the parties. WESTERN shall
indemnify and save NOKIA harmless from any liability, judgments,
decrees, costs and expenses, including reasonable attorney(s) fees
incurred by NOKIA suits brought by any party against NOKIA related to
NOKIA affixing any trade names, logos or trademark(s) on the Products
in accord with any instructions given by WESTERN.
17.3 Products not purchased by WESTERN under this Agreement which contain
WESTERN's trademarks or trade names shall have all such trademarks or
trade names removed prior to any sale, use or disposition thereof by
NOKIA. NOKIA agrees to indemnify and hold WESTERN harmless from any
actual damage arising out of failure to do so.
11
* Information omitted and filed separately with the SEC pursuant to request for
confidential treatment under Rule 406 of the Securities Act of 1933, as amended.
<PAGE> 12
17.4 The NOKIA trademark must not be removed from any Product supplied under
this Agreement, without NOKIA's approval.
18. AFFILIATES.
18.1 For the purpose of this Agreement the term "Affiliate" shall mean
another entity which controls a party hereto, or is controlled by a
party hereto or which is under common control with a party hereto.
Control, for the purposes of this Paragraph, shall mean the direct or
indirect ownership of 50% or more of the shares or interests entitled
to vote for the directors thereof or the equivalent, for so long as
such entitlement exists, or equivalent power over management thereof.
Any Affiliate of Purchaser which does not operate or manage a licensed
PCS system in the U.S. shall be excluded from this definition. Cook
Inlet Western Wireless PV/SS PCS, L.P. shall be considered an
"Affiliate" under this Agreement.
19.2 Each Affiliate shall be entitled to purchase Products under the terms
and conditions of this Agreement provided (i) the Affiliate executes a
written acknowledgement agreeing to be bound by the terms and
conditions of this Agreement; (ii) NOKIA must be reasonably satisfied
with the creditworthiness and reputation of such Affiliate, and (iii)
such Affiliate must not be a direct competitor of NOKIA or an opposing
party in pending litigation against NOKIA. However, if WESTERN elects
to directly purchase items on behalf of an Affiliate and remains fully
liable therefor, no separate agreement will be required between NOKIA
and the Affiliate and subsections (i) through (iii) above will not be
applicable.
18.3 * .
18.4 * .
19. GENERAL.
19.1 This Agreement expresses the entire understanding and agreement of the
parties with reference to the sale of NOKIA Products and other items to
WESTERN, and is a complete and exclusive statement of the terms of this
Agreement, and no representations, amendments, or agreements modifying
or supplementing the terms of this Agreement, shall be valid unless in
writing, signed by persons authorized to sign agreements on behalf of
both parties. This Agreement supersedes any prior agreement between the
parties related to the subject matter hereof.
19.2 During the term of this Agreement, WESTERN's purchase of Products, or
any accessories for the Products, from NOKIA, shall be deemed to be
purchased under the terms and conditions of this Agreement. The terms
and conditions of WESTERN's purchase orders, NOKIA's acknowledgments or
any other writings by either party which differ from the terms and
conditions hereunder shall not be effective unless specifically
accepted in writing by amendment to this Agreement
12
* Information omitted and filed separately with the SEC pursuant to request for
confidential treatment under Rule 406 of the Securities Act of 1933, as amended.
<PAGE> 13
made separate and apart from said terms and conditions. All orders are
subject to acceptance at NOKIA's home office in Tampa, Florida. No
person shall have the authority to accept any order on behalf of
NOKIA's Tampa office.
19.3 No waiver by NOKIA or WESTERN of any of the terms, conditions,
covenants or agreements of this Agreement shall be binding unless in
writing and signed by the party to be charged, and no such waiver shall
be deemed or taken as a waiver at any time thereafter of the same or
any other term, condition, covenant or agreement herein contained, nor
of the strict and prompt performance thereof. A waiver by course of
performance to any of the terms and provisions hereunder on one
occasion shall not be construed as a waiver for any other occasion.
19.4 If any one or more provisions of this Agreement is deemed to be
unenforceable, the parties hereby express by agreement that the
remainder of this Agreement is nevertheless to be fully enforced and to
be interpreted as valid in every respect except for such unenforceable
provisions.
19.5 The status of NOKIA shall be that of independent contractor only, not
under any circumstances is this Agreement intended to be a partnership
or joint venture.
19.6 The parties mutually agree that the headings and captions contained in
this Agreement are inserted for convenience or reference only, and are
not to be deemed part of, or to be used in construing, this Agreement.
19.7 *.
19.8 The parties agree that the right to return defective Products to NOKIA,
as provided herein, is intended to apply regardless of whether the
original NOKIA Products were purchased directly from NOKIA or from an
approved distributor of NOKIA. The parties agree to cooperate in
developing a mutually acceptable procedure to implement this provision
in a manner acceptable to each party.
***********
ATTACHMENTS:
1. HANDSET PRICING
2. ACCESSORIES PRICING
3. EXAMPLES OF ESSENTIAL HANDSET FUNCTIONS [for purposes of Section 8.5]
4. CO-OP ADVERTISING PROGRAM
5. WARRANTY DOCUMENTATION
6. FORM OF NOKIA CONFIRMED SHIPPING DATE REPORT
7. WINLOCK USER GUIDE
8. WINLOCK USER GUIDE APPENDIX: OPENING SIM LOCKS
13
* Information omitted and filed separately with the SEC pursuant to request for
confidential treatment under Rule 406 of the Securities Act of 1933, as amended.
<PAGE> 14
IN WITNESS WHEREOF, this Agreement was entered into as of the day and
year first written above.
ACCEPTED: ACCEPTED:
WESTERN PCS CORPORATION NOKIA MOBILE PHONES, INC.
By: /s/BOB STAPLETON By: /s/JYRKI SALO
------------------------ ------------------------
Title: President Title: President
------------------------ ------------------------
Date: March 9, 1998 Date: March 9, 1998
14
* Information omitted and filed separately with the SEC pursuant to request for
confidential treatment under Rule 406 of the Securities Act of 1933, as amended.
