SUBSCRIBER PURCHASE AND DISTRIBUTION AGREEMENT
BETWEEN
MOTOROLA, INC.
AND
NEXTEL PARTNERS OPERATING CORP.
This Subscriber Purchase and Distribution Agreement ("AGREEMENT") is
entered into between Motorola, Inc., a Delaware corporation, by and through its
iDEN Subscriber Division, having a principal place of business at ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("MOTOROLA") and Nextel
PARTNERS OPERATING Corp., a Delaware corporation, with offices at ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("PARTNERS").
Whereas MOTOROLA is in the business of designing and manufacturing wireless
communication devices.
Whereas MOTOROLA has designed an integrated wireless digital communication
technology which technology is available under the trademark of iDEN(R)
("iDEN").
Whereas MOTOROLA has developed handheld and mobile wireless devices for
general release ("iDEN SUBSCRIBER EQUIPMENT") and will make such products
available to PARTNERS under the terms and conditions contained herein.
Whereas PARTNERS has been formed to build and operate iDEN networks
("NETWORK") in certain metropolitan rural markets throughout the United States
as listed in Exhibit A ("PARTNERS MARKET") using certain blocks of wireless
licenses from Nextel Communications Inc. ("NEXTEL").
Whereas PARTNERS has agreed to purchase infrastructure equipment ("FNE")
from MOTOROLA to support the NETWORK, pursuant to a separate agreement.
Whereas PARTNERS will purchase iDEN SUBSCRIBER EQUIPMENT for operation on
the NETWORK from MOTOROLA under the terms and conditions contained herein.
Definitions have been capitalized and shall have the same meaning
throughout this AGREEMENT.
1. PRODUCT COMPLIANCE
iDEN SUBSCRIBER EQUIPMENT shall be existing iDEN subscriber products
commercially available as of the Effective Date and shall comply with their
applicable technical specifications, marketing literature, and user guides,
in all material respects.
2. PRICE
2.1. Prices
The prices to PARTNERS, in US dollars, for all iDEN SUBSCRIBER EQUIPMENT
and accessories will be the same as the price paid by NEXTEL to MOTOROLA,
from time to time on a per unit basis plus * *. Under no circumstances will
PARTNERS' price be * *. Specifically excluded from this provision are:
a) * * without * * such as that contained within * * of this AGREEMENT
unless * * with respect to such units.
b) Those * * which was * * or any * * MOTOROLA.
c) * *, on a case by case basis, such as * * outside the scope of the * *
that are not * *.
d) If * * in the * * MOTOROLA in * *, MOTOROLA shall * *.
2.2. Payment Terms
All deliveries are FOB a * * facility located within the U.S. Each such
delivery will be separately invoiced. Payment from PARTNERS shall be due
within * * after shipment and made pursuant to Section 5.1.4. Title to the
iDEN SUBSCRIBER EQUIPMENT and risk of loss shall pass to PARTNERS at the
FOB point which shall be a * * facility within the U.S. PARTNERS shall pay
all * * pursuant to Section 5.6.
Should PARTNERS fail * * times in a * * period to remit a payment within *
* from the date of a shipment, MOTOROLA may require payment for * * .
3. DISTRIBUTORSHIP
3.1. MOTOROLA Trade Names, Trademarks, and Service Marks
3.1.1. PARTNERS acknowledges that the word "MOTOROLA" is the dominant
feature of the trade names of MOTOROLA and its subsidiaries
and affiliated companies which use MOTOROLA in such names
and the ▇▇▇▇ "MOTOROLA", WINGS, stylized "M" within a circle
and derivatives thereof are important trademarks for
products manufactured or sold by MOTOROLA and for services
provided in connection with such products.
** Confidential portions omitted and filed separately with the Commission
pursuant to an application for confidential treatment pursuant to Rule 406 under
the Securities Act of 1933, as amended.
3.1.2. PARTNERS agrees that it will not in any manner use the MOTOROLA
trade names, trademarks, or service marks, or any limitation
or variant thereof as part of PARTNERS' trade name or
company or firm name, nor will it grant or purport to grant
such use to any subsidiary or affiliate of PARTNERS or to
any agent or representative of PARTNERS.
3.1.3. PARTNERS shall not remove, alter, or obliterate any trademark
appearing on the iDEN SUBSCRIBER EQUIPMENT, and PARTNERS
shall not have the right to use any MOTOROLA originated
trademark on any product, or in any advertising or sale
promotion except as such use or the manner of such use is
authorized by this AGREEMENT or separately authorized by
MOTOROLA in writing. PARTNERS shall not publish, cause to be
published, encourage, or approve any advertising or practice
which might mislead or deceive the public or might be
detrimental to the good name, trademark, trade name, service
▇▇▇▇, goodwill, or reputation of MOTOROLA. PARTNERS shall
discontinue any such advertising, practice, or use deemed by
MOTOROLA to have such misleading, deceptive, or detrimental
effect.
3.1.4. Without the prior written consent of MOTOROLA, PARTNERS shall
not have the right to institute proceedings for infringement
of any trademark of MOTOROLA which it is permitted to use
under this AGREEMENT or to institute proceedings against a
competitor for unfair competition on improper use of such
trademarks or incur any cost or obligations on behalf of
MOTOROLA.
3.1.5. If PARTNERS intends to use MOTOROLA's name, trademark or any
logo thereof, PARTNERS shall distribute to MOTOROLA
specimens or photographs of any medium on which they appear.
This includes, but is not limited to, PARTNERS' letterhead,
business cards, telephone directory listing, truck markings,
and business establishment signs and advertising materials
for approval of the form thereof by MOTOROLA, which approval
shall not be unreasonably withheld or delayed, and PARTNERS
will follow MOTOROLA's specifications with respect thereto.
3.1.6. PARTNERS' rights to use any MOTOROLA trademark, tradename, or
service ▇▇▇▇ as stated herein, shall terminate upon termination
of this AGREEMENT unless use thereof is permitted by other
agreements.
3.1.7. PARTNERS agrees that violation of any provision as stated
herein shall constitute just cause for immediate termination
of this AGREEMENT.
3.2. Training
PARTNERS will implement a Training Program on the iDEN SUBSCRIBER
EQUIPMENT and the iDEN System to the distribution channel.
3.3. Cooperative Advertising Policy
MOTOROLA shall provide PARTNERS a cooperative advertising program
as described in Attachment A of this AGREEMENT.
3.4. Parry Relationship
This AGREEMENT does not create any agency, joint venture or
partnership between PARTNERS and MOTOROLA, and PARTNERS shall not
impose or create any obligation or responsibility, express or
implied, or make any promises, representations, or warranties on
behalf of MOTOROLA, other than as expressly provided herein.
3.5. Client Care
PARTNERS will implement/install or include a customer care
process, or other assistance procedures, for End Users to be able
to obtain help and information regarding the iDEN system or iDEN
SUBSCRIBER EQUIPMENT.
3.6. Technical Assistance
MOTOROLA's warranty shall not be enlarged, and no obligation or
liability shall arise out of MOTOROLA's rendering of technical
advise, facilities, or service in connection with PARTNERS'
purchase of the iDEN SUBSCRIBER EQUIPMENT furnished under this
AGREEMENT.
3.8. ** Limitation
Distribution of iDEN SUBSCRIBER EQUIPMENT is ** as such ** may be
**. There is to be **. PARTNERS agrees to incorporate this **
provision into its ** as a condition of sale, i.e. **.
5 Logistics
5.1. Orders/acceptances/shipment/delivery
5.1.1 Orders
All orders shall be only upon the terms and conditions of
this AGREEMENT. The only effect of any terms and conditions
in PARTNERS' orders, or
** Confidential portions omitted and filed separately with the Commission
pursuant to an application for confidential treatment pursuant to Rule 406
under the Securities Act of 1933, as amended.
elsewhere shall be to request the time and place of
delivery, and numbers of units to be delivered, subject to
MOTOROLA's acceptance, but they shall not change, alter, or
add to the terms and conditions of this AGREEMENT in any
other way.
All orders placed by PARTNERS pursuant to this AGREEMENT
must meet the following minimum requirements:
▇. ▇▇▇▇ SUBSCRIBER EQUIPMENT shall be for at least * *
units per requested delivery location.
ii. Order for iDEN SUBSCRIBER EQUIPMENT accessories only
shall be for at least * * per requested delivery
location.
PARTNERS shall submit orders pursuant to the following
format:
▇. ▇▇▇▇ SUBSCRIBER EQUIPMENT and accessories must be
listed as main line items.
b. Options must be listed as sub-items to the main line
item to which they apply.
c. Options must be ordered in the same quantity as the
corresponding main line item.
d. "▇▇▇▇ to" and "Ship To" must be included.
PARTNERS shall submit orders by mailing or transmitting via
facsimile to:
Motorola Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
* *
Fax: * *
Phone: * *
PARTNERS may change orders already submitted to MOTOROLA
only if such change requests are received by MOTOROLA in
writing no later than * * prior to such order's scheduled
ship date.
5.1.2 Order Acknowledgment
MOTOROLA shall acknowledge receipt of order and provide
scheduled ship date within * * after receipt. Should
MOTOROLA, acting in good faith, not find an order
acceptable, MOTOROLA shall, with reasonable
** Confidential portions omitted and filed separately with the Commission
pursuant to an application for confidential treatment pursuant to Rule 406 under
the Securities Act of 1933, as amended.
specificity and clarity, communicate such to PARTNERS within
the associated receipt notification.
5.1.3 Packing and Shipment
a) MOTOROLA shall use commercially reasonable efforts to
ship iDEN SUBSCRIBER EQUIPMENT purchased pursuant to
this AGREEMENT within * * after receipt of a purchase
order acceptable to MOTOROLA.
b) PARTNERS shall elect the carrier and notify MOTOROLA in
writing. If no carrier is so selected, MOTOROLA shall
ship via whatever way MOTOROLA deems best.
c) MOTOROLA shall provide all relevant documents and
cooperate with the carrier in the shipment of iDEN
SUBSCRIBER AGREEMENT.
d) MOTOROLA shall package all iDEN SUBSCRIBER EQUIPMENT in
a commercially reasonable manner to prevent damage to
such equipment during shipment.
5.1.4 Wire Transfer Terms
Wire transfers shall be made to the following address:
* *
Routing No: * *
Account No: * *
Address: * *
5.3. Purchase Forecasts
During the term of this AGREEMENT, PARTNERS shall use reasonable
efforts to update, on a quarterly basis, a continuous usage
forecast to assist MOTOROLA in maintaining an orderly production
flow for the purpose of meeting PARTNERS' delivery requirements.
5.5. Standard Product Offerings
5.5.1 Product Availability
MOTOROLA shall make available to PARTNERS, for purchase, all
available iDEN SUBSCRIBER EQUIPMENT. Except as provided for
in Section 2.1(d), specifically excluded from this provision
are those iDEN
** Confidential portions omitted and filed separately with the Commission
pursuant to an application for confidential treatment pursuant to Rule 406 under
the Securities Act of 1933, as amended.
SUBSCRIBER EQUIPMENT the development of which was
substantially funded by a MOTOROLA customer or group
thereof.
5.5.2 Standard Packages
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STANDARD PHONE HARDWARE
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* *
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STANDARD MOBILE HARDWARE
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* *
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5.5.3. Optional Subscriber Hardware
Any equipment not explicitly included in the unit pricing,
shall be considered an option. Such options shall be
available to PARTNERS pursuant to MOTOROLA's then current
terms and conditions, subject to Section 2.
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PORTABLE OPTIONAL HARDWARE
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* *
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MOBILE OPTIONAL HARDWARE
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* *
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5.5.4. Product Changes or Substitutions
At any time during its performance of this AGREEMENT,
MOTOROLA may implement changes in the products set forth
herein that have been ordered by PARTNERS but not shipped,
modify the drawings and specifications relating thereto, or
substitute therefor products of more recent design;
provided, however, that any such changes, modifications or
substitutions, under normal and proper use:
a. Shall not materially or adversely affect physical or
functional interchangeability or performance (except
where there is written agreement between the parties
that the change can be made after PARTNERS knows the
effect thereof);
b. Shall not detract from the safety of the product;
c. Shall be at no additional cost to PARTNERS; and
** Confidential portions omitted and filed separately with the Commission
pursuant to an application for confidential treatment pursuant to Rule 406 under
the Securities Act of 1933, as amended.
MOTOROLA will notify PARTNERS via its normal Product
and/or Manual releases process of changes that are made to
the product and released to the general customer base and
its use and effect on the equipment currently in the field.
5.6. Taxes and Other Costs
Except for * *, all * * applicable to this transaction, shall be
borne by PARTNERS. Upon MOTOROLA's written request, PARTNERS
shall produce sufficient evidence within * * to prove that
PARTNERS has fulfilled its obligation relating to all such taxes.
If, after this * * period, any such taxes are determined to be
applicable to this transaction and notwithstanding PARTNERS'
responsibility, MOTOROLA is required to pay or bear the burden
thereof, then the prices set forth herein shall be increased by
the amount of such taxes and any interest or penalty thereon and
PARTNERS shall pay to MOTOROLA the full amount of any such
increase no later than * * after receipt of an invoice therefor.
The prices set forth herein also exclude * *.
7. TERM
The term ("Term") of this AGREEMENT shall be for three (3) years from the
EFFECTIVE DATE. At the end of which, this AGREEMENT will automatically
extend for additional * * terms, subject to the parties right to terminate
this AGREEMENT.
After the three (3) year Term of this AGREEMENT, either party may terminate
this AGREEMENT by giving the other party * * notice of intent to terminate.
8. UNIT VOLUME
To qualify for the pricing in section 2 above, Customer agrees to purchase
the minimum quantities of iDEN SUBSCRIBER EQUIPMENT according to the
following table.
TIME PERIOD MINIMUM QUANTITY OF iDEN
SUBSCRIBER EQUIPMENT
* * * *
* * * *
* * * *
* * * *
9. WARRANTY
MOTOROLA WARRANTS GOODS SOLD PURSUANT TO THIS AGREEMENT IN ACCORDANCE WITH
ITS LIMITED WARRANTY PROVIDED WITH iDEN SUBSCRIBER EQUIPMENT. MOTOROLA
MAKES NO REPRESENTATION OR WARRANTY OF ANY OTHER KIND, EXPRESS OR IMPLIED,
WHICH ARE
** Confidential portions omitted and filed separately with the Commission
pursuant to an application for confidential treatment pursuant to Rule 406 under
the Securities Act of 1933, as amended.
SPECIFICALLY EXCLUDED INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES
OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
UPON RESELLING GOODS PURCHASED PURSUANT TO THIS AGREEMENT TO A THIRD PARTY
("END USER"),PARTNERS SHALL TRANSFER THE WARRANTY IN ITS ENTIRETY TO THE
END USER WHO SHALL BE THE SOLE BENEFICIARY OF THIS WARRANTY.
10. WAIVER
The failure of either party to insist in any one or more instances upon the
performance of any of the terms, covenants, or conditions, herein, or to
exercise any right hereunder, shall not be construed as a waiver or
relinquishment of the future performance of any such term, covenant, or
conditions of the future exercise of such right, but the obligation of the
other party with respect to such future performance shall continue in full
force and effect.
11. RE-EXPORTATION OF TECHNICAL DATA OR PRODUCTS
PARTNERS understands that all equipment, proprietary data, know-how,
Software or other data or information obtained by PARTNERS from MOTOROLA is
considered to be United States technology. PARTNERS therefore agrees that
it will not, without prior written consent of MOTOROLA and the Office of
Export Control, United States Department of Commerce, Washington, DC 20230,
U.S.A., knowingly export, re-export, or cause to be exported or
re-exported, either directly or indirectly, any such equipment, proprietary
data, know-how, software, or other data or information, or any direct or
indirect product thereof, to any destination or entity prohibited or
restricted under United States law. PARTNERS understands that the list of
prohibited or restricted destinations and entities may be amended from time
to time by the United States Department of Commerce and that all such
amendments shall be applicable to this AGREEMENT.
12. DISCLAIMER OF INTELLECTUAL PROPERTY LICENSE
Nothing contained in this AGREEMENT shall be deemed to grant, either
directly or by implication, any license under any patents, patent
applications, copyrights, trademarks, or trade secrets of MOTOROLA except
that PARTNERS shall have the normal non-exclusive, royalty-free license to
use which is implied, or otherwise arises by operation of law, in the sale
of a product.
13. PATENT AND COPYRIGHT INDEMNITY
13.1 MOTOROLA shall defend PARTNERS against a claim that MOTOROLA
manufactured iDEN(R) SUBSCRIBER EQUIPMENT infringes a U.S. patent,
provided that:
a. PARTNERS promptly notifies MOTOROLA in writing of the claim.
b. MOTOROLA has sole control of the defense and all related
settlement negotiations.
c. PARTNERS gives MOTOROLA information and, at MOTOROLA's expense,
assistance, for the defense provided, however, that partners'
failure to provide such notice shall not relieve MOTOROLA of
liability under this Section 13 except to the extent MOTOROLA was
prejudiced thereby.
13.2 Subject to the conditions and limitations of liability stated in this
AGREEMENT, MOTOROLA shall indemnify and hold PARTNERS harmless from:
a. All payments which by final judgments in such suits may be
assessed against PARTNERS on account of such infringement and
shall pay resulting settlements, costs and damages finally
awarded against PARTNERS by a court of law; and
b. All costs associated with promptly notifying MOTOROLA of the
claim.
13.3 PARTNERS agrees that if MOTOROLA manufactured products become, or in
MOTOROLA's opinion are likely to become, the subject of such a claim,
PARTNERS will permit MOTOROLA, at its option and expense, either:
a. To ** PARTNERS to **, or
b. To replace or modify same so that they become non-infringing
without affecting the function and capability.
If both of the foregoing alternatives are not available on terms which
are reasonable in both PARTNERS' and MOTOROLA's judgment, PARTNERS can
return MOTOROLA manufactured products for full credit on the entire
unusable portion thereof.
13.4 MOTOROLA has no liability for any claim of patent or copyright
infringement to the extent based upon adherence to specifications,
designs or instructions furnished by PARTNERS, nor for any claim based
upon the combination, operation or use of any MOTOROLA manufactured
products or Software supplied hereunder with products, Software or
data not supplied by MOTOROLA, nor for any claim to the extent based
upon alteration of the products or modification of any Software
supplied by entities other than MOTOROLA.
14. CONFIDENTIALITY
14.1 During the term of this AGREEMENT, PARTNERS and MOTOROLA may deem it
necessary to provide each other with Confidential Information. For a
period not less than three (3) years from the date of disclosure, the
parties agree:
14.1.1 To maintain the confidentiality of such Confidential
Information and not disclose same to any third party, except
as authorized by the original disclosing
party in writing, or as required by a court of competent
jurisdiction or as required by an appropriately empowered
government agency, provided however that the receiving party
shall promptly notify the disclosing party of such
requirement so that the disclosing party may seek a
protective order or other appropriate remedy against such
disclosure. For any such information that MOTOROLA and
PARTNERS believes is confidential, if applicable, MOTOROLA
and PARTNERS will use their best efforts to get confidential
treatment from the SEC. Such Confidential information also
includes oral and visual Confidential Information.
14.1.2. To restrict disclosure of Confideal Information to
employees and technical, legal and financial consultants
who have a "need to know." Such Confidential Information
shall be handled with the same degree of care which the
receiving party applies to its own Confidential Information
but in no event less than reasonable care.
14.1.3. To take precautions necessary and appropriate to guard the
confidentiality of Confidential Information, including
informing its employees and consultants who handle such
Confidential Information that it is confidential and not to
be disclosed to others and as to all technical consultants
obtain a signed Non-Disclosure Agreement consistent herewith
prior to any disclosure.
14.1.4. That Confidential Information is and shall at all times remain
the property of the disclosing party. No use of any
Confidential Information is permitted except as otherwise
provided herein and no grant under any proprietary rights is
hereby given or intended, including any license implied or
otherwise.
14.1.5. To use such Confidential Information only as required in
performance of this AGREEMENT.
14.2. Except as may be required by applicable law, neither party shall
disclose to any third party the contents of this AGREEMENT, the
Exhibits or any Amendments hereto or thereto for a period of two (2)
years from the EFFECTIVE DATE without the prior written consent of
the other; provided, however, PARTNERS may disclose this Agreement
and all Exhibits and Amendments hereto to NEXTEL.
15. TITLE AND INDEMNITY
15.1 Title to Software and underlying intellectual property rights (i.e.
patents, copyrights, proprietary and confidential information, and
know-how) shall at all times remain with MOTOROLA.
15.2 During the term of this AGREEMENT, the parties shall indemnify and
hold harmless each other together with other officers, agents and
employees from any and all loss, damage, expense, judgment, lien,
suit, cause of action, demand or liability for personal
injury, including death and tangible property damage (collectively
loss), which may be imposed on or incurred by one party arising
directly out of the negligent acts or omissions of the other, its
agents, subcontractors, or employees during the performance of any
work hereunder. The indemnifying party shall, at its sole expense,
defend any suit based upon a claim or cause of action within the
foregoing indemnity provision and satisfy any judgment that may be
rendered against the other resulting therefrom, provided that the
indemnifying party shall be given:
a. Prompt notice of any such claim or suit provided, however, that
failure to provide such notice shall not relieve the indemnifying
party of liability under this section except to the extent the
indemnifying party was prejudiced thereby; and
b. Full opportunity to defend such suit.
The indemnified party may, at its election, participate in the defense
of any suit, and shall cooperate fully in defending any claim or
suits.
16. FORCE MAJEURE - EXCUSABLE DELAY
16.1 Neither party shall be liable for delays in delivery or performance,
or for failure to manufacture, deliver or perform when such delay or
failure is caused by any of the following which are beyond the actual
control of the delayed party:
16.1.1 Acts of God, acts of the public enemy, acts or failures to act
by the other party, acts of civil or military authority,
governmental priorities, strikes or other labor disturbances,
hurricanes, earthquakes, fires, floods, epidemics, embargoes,
war, riots, delays in transportation, car shortages, and loss
or damage to goods in transit if such goods have been properly
packaged as stated herein; or
16.1.2 Inability on account of causes beyond the reasonable control of
the delayed party or its suppliers to obtain necessary
products, components, services or facilities.
16.2 In the event of any such delay the date of delivery or of performance
shall be extended for a period equal to the period of time lost by
reason of the delay.
17. TERMINATION
17.1 Either party may terminate this AGREEMENT without liability by written
or telegraphic notice if the other shall commit any material breach of
its obligations hereunder provided, however, that in the case of any
such breach which is capable of being cured, neither party shall
terminate this AGREEMENT unless and until the other shall have failed
to make good such breach within * * after it shall have been
** Confidential portions omitted and filed separately with the Commission
pursuant to an application for confidential treatment pursuant to Rule 406 under
the Securities Act of 1933, as amended.
served with a notice requiring that such breach be made good and
stating its intention to terminate the AGREEMENT if compliance with
the notice is not met.
17.2 The termination of this AGREEMENT shall not affect or prejudice any
provisions of this AGREEMENT which are expressly or by implication
provided to continue in effect after such termination.
18. LIMITATION OF LIABILITY AND INSURANCE
Except as specifically provided herein, neither party, whether as a result
of breach of contract, warranty, tort (including without limitation
negligence), patent infringement, copyright infringement or otherwise,
shall have any liability to the other for incidental or consequential
damages, including, but not limited to, loss of profit or revenues, loss of
use of the products or any associated equipment, cost of capital, cost of
substitute products, facilities or service, or downtime costs or claims of
third parties (except as otherwise indemnified herein).
19. ASSIGNMENT
The AGREEMENT shall accrue to the benefit of and be binding upon the
parties hereto and any successor entity into which either party shall have
been merged or consolidated or to which either party shall have sold or
transferred all or substantially all its assets but it shall not be
otherwise assigned by either party without the prior written consent of the
other party. There shall be no assignment of any Software license given
hereunder.
20. GOVERNING LAW
The validity, performance, and all matters relating to the effect of this
AGREEMENT and any amendment hereto shall be governed by the laws of the
state of Illinois without regard to its conflicts of laws provisions.
21. ORDER OF PRECEDENCE
In the event of an inconsistency in this AGREEMENT, the inconsistency shall
be resolved by giving precedence in the following order:
21.1 This AGREEMENT and duly executed Amendments or Change Orders to this
AGREEMENT, with the latest Amendment or Change Order taking
precedence over earlier Amendments or Change Orders;
21.2. All other Exhibits and all duly executed Amendments or Change Orders
to said Exhibits.
22. NOTICE
22.1 Notices required to be given by one party to another shall be deemed
properly given if reduced to writing and personally delivered or
transmitted by registered or certified post to the address below,
postage prepaid, or by facsimile with a confirmation of transmission
printed by sender's facsimile machine, and shall be effective upon
receipt.
22.1.1 MOTOROLA shall send notices as follows:
Nextel Partners Operating Corp.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Manager
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
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Nextel Partners Operating Corp.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Fax (▇▇▇) ▇▇▇-▇▇▇▇
22.1.2 PARTNERS shall send notices as follows:
MOTOROLA, Inc.
iDEN Subscriber Division
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: * *
Fax: * *
With a copy to:
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MOTOROLA , Inc.
Intellectual Property Section
Law Department
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: * *
Fax: * *
** Confidential portions omitted and filed separately with the Commission
pursuant to an application for confidential treatment pursuant to Rule 406 under
the Securities Act of 1933, as amended.
22.2. Either party may change the addresses for giving notice from time to
time by written instructions to the other of such change of address.
23. SURVIVAL OF PROVISIONS
The parties agree that where the context of any provision indicates an
intent that it shall survive the term of this AGREEMENT then such provision
shall survive.
24. GENERAL
Failure or delay on the part of MOTOROLA or PARTNERS to exercise any right,
power or privilege hereunder shall not operate as a waiver thereof. If any
provision of this AGREEMENT is contrary to, prohibited by or held invalid
by any law, rule, order or regulation of any government or by the final
determination of any provincial or federal court, such invalidity shall not
affect the enforceability of any other provisions not held to be invalid.
Section and paragraph heading used in this AGREEMENT are for convenience
only and are not to be used to construe the provisions of their AGREEMENT.
Neither party shall bring any action, either in law or in equity, more than
one year from the date the event giving rise to the action becomes known to
the party bringing the action.
25. AUTHORITY
Each party hereto represents and warrants that:
a. It has obtained all necessary approvals, consents and authorizations
of third parties and governmental authorities to enter into this
AGREEMENT and to perform and carry out its obligations hereunder;
b. The persons executing this AGREEMENT on its behalf have express
authority to do so, and, in so doing, to bind the party thereto;
c. The execution, delivery, and performance of this AGREEMENT does not
violate any provision of any bylaw, charter, regulation, or any other
governing authority of the party; and
d. The execution, delivery and performance of this AGREEMENT has been
duly authorized by all necessary partnership or corporate action and
this AGREEMENT is a valid and binding obligation of such party,
enforceable in accordance with its terms.
26. DISPUTES AND DISPUTE RESOLUTION
26.1. MOTOROLA and PARTNERS will attempt to settle any claim or controversy
arising out of this AGREEMENT through consultation and negotiation in
good faith and a spirit of mutual cooperation. If those attempts
fail, then the dispute will be mediated by a mutually-acceptable
mediator to be chosen by MOTOROLA and PARTNERS within
** after written notice by the other demanding mediation. Neither
party may unreasonably withhold consent to the selection of a
mediator, and MOTOROLA and PARTNERS will share the costs of the
mediation equally. By mutual agreement, however, the parties may
postpone mediation until they have each completed some specified, but
limited discovery about the dispute. The parties may also agree to
replace mediation with some other form of alternative dispute
resolution (ADR), such as neutral fact-finding or a mini-trial.
27. MISCELLANEOUS
This AGREEMENT constitutes the entire and final expression of agreement
between the parties pertaining to the subject matter hereof and supersedes all
prior and contemporaneous negotiations, offers, discussions, arrangements,
promises, representations, agreements, letters of intent or understanding of the
parties whether written, oral or otherwise, in connection therewith.
IN WITNESS WHEREOF, the parties have caused this AGREEMENT to be executed
by their duly authorized representatives effective as of the date of the last
signature hereto ("Effective Date").
MOTOROLA, INC. NEXTEL PARTNERS
OPERATING CORP.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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(Authorized Signatory) (Authorized Signatory)
Name: ▇▇▇▇▇ ▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Senior Vice President, General
Title: Manager iDEN Subscriber Group Title: V.P. General Counsel
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Date: 1/28/99 Date: 1/29/99
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** Confidential portions omitted and filed separately with the Commission
pursuant to an application for confidential treatment pursuant to Rule 406
under the Securities Act of 1933, as amended.