1
Confidential: Use or disclosure of this document is subject to the
restriction on the Confidentiality Statement.
EXHIBIT 10.1
iDEN(R) INFRASTRUCTURE INSTALLATION SERVICES AGREEMENT
This Agreement ("Agreement" or "Services Agreement") is between Motorola, Inc.,
a Delaware corporation, by and through its Network Solutions Sector, Customer
Solutions Group with offices at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ("Motorola", which term shall also mean, where the context requires,
Motorola subsidiaries or subcontractors involved in providing services or
materials for this Agreement) and Nextel International, Inc. a company with
offices at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ "Nextel International"
and [See schedule Item 1], a company with offices at [See schedule Item 2]
("Customer").
RECITALS:
Customer or its Affiliates have certain rights to use certain electromagnetic
radio frequencies licensed by the "Spectrum Regulatory Agency" and employs or
intends to employ such frequencies to operate iDEN Systems in the "Area" defined
below in Section 1.
Customer shall purchase and Motorola shall sell, where required by the Customer,
installation and integration services for iDEN Systems and other services
performed in [See schedule Item 3] pursuant to the terms and conditions of this
Agreement.
The Exhibits to this Agreement are incorporated by reference into the Agreement.
Motorola and Customer previously entered into a subscriber agreement, as
subsequently amended, for the sale by Motorola and purchase by Customer of
Subscriber equipment for use on the Systems (the "Subscriber Agreement").
AGREEMENT:
Now therefore, in consideration of the mutual obligations herein contained, the
parties agree as follows:
1.0 DEFINITIONS
Capitalized terms used in this Agreement and the Exhibits shall have the
following meanings:
ACCEPTANCE TEST PLAN
The Acceptance Test Plan (ATP) is the plan in a Project Agreement or
Motorola Quotation for testing a new System or System Expansion. The ATP
consists of specific
---------------------------------------
(R) Registered U.S. Patent & Trademark Office.
Motorola/Nextel International/[See schedule Item 3 ] 1 Installation Services Agreement
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
2
Confidential: Use or disclosure of this document is subject to the
restriction on the Confidentiality Statement.
tests mutually agreed upon and selected from the Generic Acceptance Test
Plan (GATP) provided in Exhibit "C."
AFFILIATE
All wholly owned and majority owned and controlled affiliates of
Customer that operate solely in a country where the Customer operates.
AREA
The geographic area of any of the metropolitan market areas throughout
[See schedule Item 3].
CHANGE ORDER
Any change agreed to in writing, by Customer and Motorola, that modifies
the type or quantity of Services set forth in a "Purchase Order" or
"Project Agreement", which terms are defined in Section 2.4.
COMMERCIAL SERVICE
The point at which Customer has the beneficial use of the System or any
when portion thereof is functional and operative. Beneficial use shall
be defined as when the System has one or more Subscribers, other than
Subscribers specifically connected as part of a test program.
CONDITIONAL ACCEPTANCE AND FINAL ACCEPTANCE
Conditional Acceptance of a System shall occur as follows:
With respect to new Systems, Conditional Acceptance shall occur at the
first of the following: (1) commencement of Commercial Service of the
product purchased, or (2) satisfactory completion of the ATP, which
satisfactory completion shall be evidenced by a notice signed by a
Customer and which notice shall not be unreasonably withheld. Final
Acceptance shall occur and be evidenced by a notice signed by Customer
when Conditional Acceptance and substantially all Punchlist items have
been resolved.
With respect to Expansion Product, in the event Customer purchases
Installation and Integration Services, including an ATP, from Motorola
prior to the date of shipment, Conditional and Final Acceptance shall
occur in the same manner as provided in the "Conditional Acceptance and
Final Acceptance" definition above with respect to the System.
Motorola/Nextel International/[See schedule Item 3 ] 2 Installation Services Agreement
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
3
Confidential: Use or disclosure of this document is subject to the
restriction on the Confidentiality Statement.
For Expansion Product, Equipment or Software purchased without
Installation and Integration Services, the Conditional Acceptance and
Final Acceptance provisions in this Section will not apply and such
Expansion Product, Equipment or Software will be invoiced for [*] of its
invoiced value upon shipment. Motorola will warrant the functional
operation of Equipment and Software purchased without Motorola
installation and integration assistance per Section 8.7 so long as such
Equipment and Software is installed by the Customer in accordance with
Motorola hardware configuration and datafill guidelines.
CONFIDENTIAL INFORMATION
Software, Documentation, Interfaces, and Specifications and information
transferred pursuant to this Agreement which may include, without
implied limitation, formulas, processes, designs, photographs, plans,
samples, equipment, equipment performance reports, Subscriber lists,
pricing information, studies, findings, inventions, ideas, drawings,
schematics, sketches, specifications, parts lists, technical data,
databases, software in any form, flow charts, algorithms and other
business and technical information. The parties shall use reasonable
effort to ▇▇▇▇ all confidential information as confidential or
proprietary. Excluded from Confidential Information is that which (i)
the recipient had in its possession without confidential limitation
prior to disclosure, (ii) which is independently developed by the
recipient, (iii) which is known or becomes known to the general public
without breach of this Agreement, or (iv) which is received rightfully
and without confidential limitation by the recipient from a third party.
Confidential Information shall be subject to the requirements of Section
12 of this Agreement.
EQUIPMENT
Goods, hardware, and products (other than Software) contained in the
Price Book or in a Project Agreement or Motorola Quotation which are
supplied by or through Motorola U.S. to be used in conjunction with and
as part of an iDEN System.
EXPANSION PRODUCT
All Fixed Network Equipment, Software, and other Motorola U.S. supplied
products and services purchased from Motorola or Motorola U.S. to add to
or expand a System.
FCA
When used herein shall be as defined in Incoterms 1990. Motorola shall
deliver to Customer's carrier at a manufacturing site or Motorola
facility.
Motorola/Nextel International/[See schedule Item 3 ] 3 Installation Services Agreement
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
4
Confidential: Use or disclosure of this document is subject to the
restriction on the Confidentiality Statement.
FIXED NETWORK EQUIPMENT - FNE
"FNE" shall mean Motorola U.S. supplied Equipment integral to the iDEN
System, including the following major components: [*]. Equipment which
is not integral to the Sites, such as antennas, transmission line, and
combining equipment (currently not supplied by Motorola), is excluded
from FNE, as are Subscriber Units.
iDEN
iDEN is the trademark for Motorola U.S.'s advanced integrated digital
enhanced network containing the radio-telephone and dispatch
communications system that is described in Exhibit "B".
IMPLEMENTATION SCHEDULE
The schedule set forth in the Project Agreement or Motorola Quotation
for the System or System Expansion.
INITIAL PROGRAM LOAD (IPL)
The Initial Program Load (IPL) Software is delivered with the System or
System Expansion, shall be the most current version of iDEN Software
that is in general release and includes the most current Software
necessary to support all major subsystems or components of the iDEN
System as identified in the Price Book, Project Agreement or Motorola
Quotation. A license fee for the System IPL is identified in the Price
Book.
INTERCONNECT CARRIER
Any local exchange carrier, inter-exchange carrier, or reseller of local
or inter-exchange service that is connected to a System.
INTERCONNECT FACILITIES
The medium connecting the iDEN Network Interconnect Switch to the public
switched telephone network or inter-exchange carrier network of any
Interconnect Carrier including termination facilities such as protected
termination blocks, end office termination repeaters and Channel Service
Units to permit direct connection to the System.
Motorola/Nextel International/[See schedule Item 3 ] 4 Installation Services Agreement
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
5
Confidential: Use or disclosure of this document is subject to the
restriction on the Confidentiality Statement.
MOTOROLA U.S.
Motorola, Inc., a Delaware corporation, by and through its Network
Solutions Sector, Customer Solutions Group with offices at ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
NII AFFILIATES
The term "NII Affiliates" shall mean collectively the following Nextel
International majority-owned subsidiaries: (1) Nextel Argentina S.R.L.,
(2) Nextel Telecomunicacoes Ltda., (3) Nextel de Mexico, S.A. de C.V.,
(4) Nextel del Peru S.A., (5) NEXTEL Communications Philippines, Inc.,
(6) the Nextel International Chile affiliate, and (7) the Nextel
International Uraguay affiliate.
PRICE BOOK
Motorola's iDEN(R) Infrastructure Price Book, which is kept by Motorola
on the iDEN web site for use in the United States and worldwide, as
appropriate, and updated periodically by Motorola.
PUNCHLIST
The list, prepared during the ATP and the [*] subsequent to the date of
Conditional Acceptance and finalized no later than [*] subsequent to the
date of Conditional Acceptance, which sets forth those items, if any,
identified by Customer in good faith and agreed to by Motorola (which
agreement Motorola shall not unreasonably withhold or delay) where the
System or System Expansion or Expansion Product fails to comply with the
applicable specifications and performance standards set forth in Exhibit
"B" and the ATP.
RF
Radio Frequency.
SERVICES
Services shall be as defined in the Price Book or Motorola Quotation.
SITE
Each of the physical locations comprising the System, which contains
FNE, including the geographic location that houses the iDEN mobile
switching office equipment.
Motorola/Nextel International/[See schedule Item 3 ] 5 Installation Services Agreement
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
6
Confidential: Use or disclosure of this document is subject to the
restriction on the Confidentiality Statement.
SMP
The Software Maintenance Program defined in Exhibit "E".
SUBSCRIBER
A person who uses the System entitling the System operator to revenue.
SOFTWARE
The object-code or, in limited cases, source code computer programs
licensed by Customer for use solely in conjunction with the FNE.
SPECTRUM REGULATORY AGENCY
"Spectrum Regulatory Agency" shall mean the agency of the Government of
any country in the Area which is responsible for radio communications
administration and regulation.
SUBSCRIBER UNIT
Any manufactured and assembled, mobile or portable, iDEN
telecommunications unit intended for use by any Subscriber.
SYSTEM
A "System" shall be defined as a specified grouping of Equipment and
Software for an MSO, RSO, or CSO supplied by or through Motorola U.S.,
including related Services, for the construction of a digital mobile
network to provide mobile integrated services for a geographic area
utilizing the basic iDEN technology platform.
SYSTEM EXPANSION
A "System Expansion" shall be defined as a specified grouping of
Equipment and Software for modification of an MSO, RSO, or CSO utilizing
the basic iDEN technology platform, and supplied by or through Motorola
U.S., including related Services, as a single order or a group of
related orders which are received by Motorola U.S. or Motorola within
thirty (30) days from the date on which Motorola U.S. received the first
of such related orders, unless otherwise agreed to, having an aggregate
minimum purchase price of [*]. The specific grouping shall be ordered
for the modification of the existing design, or to increase the
capabilities or capacities of Customer's existing iDEN System.
Motorola/Nextel International/[See schedule Item 3 ] 6 Installation Services Agreement
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
7
Confidential: Use or disclosure of this document is subject to the
restriction on the Confidentiality Statement.
SYSTEM INTEGRATION
"System Integration" shall be as defined in Section 2.2.2(a).
TECHNICAL DEFINITIONS
The definitions set forth in Exhibit "B" shall have the same meaning
herein.
2.0 SCOPE OF AGREEMENT: IMPLEMENTATION
2.1 Customer agrees to order and purchase from Motorola and Motorola
agrees to install and integrate iDEN Systems, System Expansions,
Equipment, and Software and provide other services performed in
[See schedule Item 3] at prices set forth in the Price Book or
applicable Motorola Quotation. The Price Book may be updated by
Motorola periodically, provided that no change shall contradict
agreements made herein. The prices for goods and services set
forth in the Price Book are set forth in United States dollars
unless specifically noted to the contrary. Notwithstanding any
provision of this Agreement to the contrary, no Equipment or
Software is sold or licensed under this Agreement to Customer by
Motorola. No services provided outside [See schedule Item 3] are
sold to Customer by Motorola under this Agreement.
2.2 [Intentionally Omitted]
2.3 Motorola and Customer shall each appoint a Program Manager for
each project. Each such Project Program Manager shall have the
responsibility to make good faith efforts to resolve problems and
disputes prior to initiating the dispute resolution procedures
set forth in Section 30. Other responsibilities are as follows:
2.3.1 The responsibilities of the Motorola Program Manager shall
include:
a. Serve as the primary Customer contact for the project.
b. Serve as the focal point for all Motorola internal
plant and field issues.
c. Deliveries, subcontracts, installation, System testing
and integration, documentation, training and all
duties required to coordinate any work of the various
Motorola team members required by the Customer.
d. Clarify the final definition of all Customer and
project requirements.
Motorola/Nextel International/[See schedule Item 3 ] 7 Installation Services Agreement
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
8
Confidential: Use or disclosure of this document is subject to the
restriction on the Confidentiality Statement.
e. Establish a detailed project schedule and oversee
accomplishment of project milestones.
f. Establish the project team structure and staffing.
g. Establish and maintain project reporting and
measurement procedures.
h. Meet regularly with Customer's Program Manager to
review progress and project issues.
i. Facilitate within Motorola Customer's order placement
and order acceptance procedures.
2.3.2 The responsibilities of the Customer Program Manager shall
include:
a. Serve as primary Motorola contact for the project.
b. Serve as the focal point for all Customer internal
and field issues.
c. Schedule and oversee accomplishment of project
milestones.
d. Review and approve accomplishment of project
milestones.
e. Disseminate project reports and measurement
procedures within Customer's organization.
f. Approve all modifications to specifications.
g. Approve and acquire all Sites, notify the Motorola
Program Manager of Site availability, and coordinate
Motorola's access to the Sites.
h. Meet regularly with the Motorola Program Manager to
review progress and project issues.
2.4 Customer shall order Services on "Purchase Order(s)", defined
below in Section 2.4.1, provided however, that any such documents
incorporate this Agreement by reference and state that this
Agreement supersedes all terms and conditions of such document.
Purchase Orders shall identify quantities of goods and/or
services ordered and shall include shipping dates and/or shipping
locations. All prices shall be as set forth in the then current
Price Book or as specifically provided by Motorola in a
referenced "Motorola Quotation", defined below in Section 2.4.1.
Motorola/Nextel International/[See schedule Item 3 ] 8 Installation Services Agreement
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
9
Confidential: Use or disclosure of this document is subject to the
restriction on the Confidentiality Statement.
For these purposes, the following statement on a Purchase Order
document shall suffice as such incorporation by reference and
supersession:
"All terms and conditions of the Nextel International,
Inc./ [See schedule Item 1]/ Motorola, Inc. iDEN(R)
Infrastructure Installation Services Agreement, dated as
of June 30, 2000, as amended, shall apply to this purchase
order and shall supersede and replace any preprinted or
other terms and conditions contained herein."
Standard Equipment order lead times and installation period shall
be as set forth in the Price Book, as modified by Motorola from
time to time. If a Purchase Order makes reference to a valid
Motorola Quotation, such Motorola Quotation shall become
incorporated into such Purchase Order when the latter becomes
effective. At Customer's request, Motorola shall use commercially
reasonable efforts to reduce lead times. If shortening any such
lead time requires an extra fee, Motorola shall provide Customer
such option.
2.4.1 Additional Definitions:
(a) Authorized Signatory. For the purposes of Section 2.4, an
"Authorized Signatory" is a person authorized by Customer or
by Motorola to execute or acknowledge Purchase Orders,
Project Agreements, Motorola Quotations, or amendments
thereto. Each party shall provide the other written notice of
its respective Authorized Signatories and changes to same.
(b) Purchase Orders. A "Purchase Order" is a purchase order on a
form provided either by Customer or by Motorola, provided
that such form contains the preceding requirements for
incorporation by reference and supersession. A Purchase Order
may be either associated with a "Project Agreement", defined
below, or not so associated. A non-associated Purchase Order
will be billed [*], with payment due within [*] of such
invoice. A Purchase Order in proper form and executed by
Customer becomes effective upon acceptance by Motorola
pursuant to Motorola's order acknowledgment procedures or
other notification. For all Customer purchases, Motorola
shall provide acknowledgment to both Customer and Nextel
International. If Customer subsequently requests a change to
the scope of work required pursuant to a Purchase Order,
Motorola may propose additional charges and address schedule
impact for such changed scope of work. All Purchase Orders or
Change Orders shall be signed by an Authorized Signatory of
Customer.
Motorola/Nextel International/[See schedule Item 3 ] 9 Installation Services Agreement
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
10
Confidential: Use or disclosure of this document is subject to the
restriction on the Confidentiality Statement.
(c) Project Agreements. "Project Agreements" are defined in
Exhibit "A". Project Agreements shall identify all Purchase
Orders related to the Project Agreement. The Project
Agreement is not intended as a reconciliation document, nor
is a Project Agreement intended for the purchase of
Equipment, Software, and/or Services. If Customer requests
changes to the scope of the work required for an executed
Project Agreement, Motorola may propose additional charges
and/or schedule revisions for such changed scope of work.
(d) Motorola Quotations. "Motorola Quotations" are quotations
provided by Motorola to Customer for Equipment, Software,
and/or Services that are not in the Price Book or require
customization or deviate in any way from standard product or
service offering detailed in the Price Book. Such quotations
may include related terms and conditions, including pricing.
All Motorola Quotations are subject to this Agreement, and
any terms and conditions in a Motorola Quotations
inconsistent with those in this Agreement are governed by
those in this Agreement. If after Motorola's acknowledgment,
Customer makes changes to the scope of the work required for
the Motorola Quotation, Motorola may propose additional
charges and/or schedule revisions. If requested by Customer,
Motorola shall use commercially reasonable efforts to seek
reduction of lead time on third party product impacting
Customer's schedule.
2.4.2 Order Process
Purchase Orders for Price Book items may be completed by Customer
without the need for input from Motorola. Receipt of Purchase
Orders will be acknowledged by Motorola. Non-Price Book items
require a Motorola Quotation.
Project Agreements are created by Motorola using the form set out
in Appendix I to Exhibit "A" hereto and sent to Customer for
approval. Customer shall review all documents and indicate its
acceptance by signing and returning an executed copy to Motorola
or shall work with Motorola to achieve mutually acceptable
revisions to the proposed Project Agreement, after which both
Customer and Motorola shall execute such revised Project
Agreement.
2.4.3 Changes in Purchase Orders and Project Agreements
(a) Purchase Order Modification. Any modification after such
Purchase Order has been accepted by Motorola other than
cancellation shall be made only by written mutual agreement
accompanied by a revised or replacement Purchase Order
executed by an Authorized Signatory of Customer, except for
the type of changes set forth below ("Purchase Order
Adjustments"):
Motorola/Nextel International/[See schedule Item 3 ] 10 Installation Services Agreement
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
11
Confidential: Use or disclosure of this document is subject to the
restriction on the Confidentiality Statement.
(i) Changes to Customer requested ship dates, not to
exceed [*] extension;
(ii) Changes to shipping locations to an alternate
authorized Customer location.
Purchase Order Adjustments may be made by the agreement of one
Authorized Signatory from Customer and one Authorized
Signatory from Motorola, provided that such agreement is
confirmed via contemporaneous faxed or emailed confirmations
exchanged between Customer and Motorola.
(b) Purchase Order Cancellation. Customer may cancel a Purchase
Order without charge up to [*] after the order, provided that
shipment has not occurred. Unless otherwise specified in a
proposal, reasonable and customary cancellation fees as set
forth in the Price Book shall apply.
(c) Project Agreement Modification and Cancellation. Any
modification or cancellation of a Project Agreement shall be
made only by written amendment executed by Authorized
Signatories from each party. After the execution of a Project
Agreement or amendment, any change or cancellation by
Customer to an associated Purchase Order requires execution
by Customer and Motorola of an amendment to such associated
Project Agreement. Should such Purchase Order change or
cancellation by Customer change the Project in such a way
that the remaining associated Purchase Orders no longer
constitute a System or System Expansion, as defined for the
purposes of Exhibit "A", then the payment terms for all such
associated Purchase Orders shall revert to [*] of the
purchase price upon shipment. Customer shall pay such
invoices within [*] of issuance.
3.0 OBLIGATIONS OF CUSTOMER
Customer shall:
3.1 Design the RF coverage plan and frequency plan for each Area
including but not limited to Site location, frequencies at each
Site, RF coverage from each Site, co-channel interference caused
from one Site to another Site, co-channel interference from
non-Customer sites.
3.2 Procure necessary Spectrum Regulatory Agency radio station
licenses together with such other authorizations as may be
required to construct and operate the System, including without
implied limitation, Site building permits, zoning variances, and
any other required approval or authorizations from appropriate
government and other authorities, including but not limited to
the Spectrum
Motorola/Nextel International/[See schedule Item 3 ] 11 Installation Services Agreement
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
12
Confidential: Use or disclosure of this document is subject to the
restriction on the Confidentiality Statement.
Regulatory Agency, and any required authorizations from any
local agencies. Assume the responsibility for interfacing with
appropriate carriers and other providers for the provision of
Interconnect Facilities, electrical power and Customer-supplied
equipment in accordance with the Implementation Schedule.
3.3 Make all legal arrangements and pay all expenses that may be
required, to Site owners or to others, to construct and operate
each Site in accordance with the provisions of this Agreement.
3.4 Bear the costs of its own legal fees, as well as charges for Site
acquisition, Interconnect Facilities, telephone and utility
charges and other services and items being supplied by Customer
under this Agreement. Provide ingress and egress to Sites, as
requested by Motorola, and have Sites available for timely
installation of System Equipment.
3.5 Negotiate in good faith the Implementation Schedule and adhere to
the schedule for performance of the responsibilities set forth
therein.
3.6 Negotiate in good faith the Punchlist for the System or System
Expansion and Expansion Product prior to the expiration of the
[*] period following the date of Conditional Acceptance.
3.7 Not unreasonably withhold either Conditional or Final Acceptance
or any other approvals required under this Agreement.
3.8 Assume responsibility for diagnosis, analysis, isolation, and
remedy of problems in the Interconnect Facilities or at the
Interconnect Carrier side of the interface with the System.
3.9 Furnish necessary databases to Motorola in accordance with the
Implementation Schedule.
3.10 Make payments according to the schedule set forth in Section 6 of
this Agreement.
3.11 As required, purchase or provide the services set forth in
Exhibit "D".
3.12 Assume responsibility for lawful operation of the System.
3.13 Be responsible for the timely transportation of all Equipment
from the FCA shipment point to the sites. Be responsible for all
aspects of clearing the Equipment through customs.
Motorola/Nextel International/[See schedule Item 3 ] 12 Installation Services Agreement
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
13
Confidential: Use or disclosure of this document is subject to the
restriction on the Confidentiality Statement.
3.14 Provide and assume all associated costs for warehousing, storage,
inventory, and staging of Equipment prior to transport to the
installation sites.
3.15 Use reasonable best endeavors to provide secure covered storage
areas at each Site and unrestricted access to Motorola and its
identified Contractors (those Motorola has notified Nextel will
be going on the sites) to each Site on a 24-hour basis.
3.16 Furnish and install suitable environmental control facilities in
each building.
3.17 Provide telephone company network configuration including dial
plan and design.
3.18 Within [*] after the execution date of any Project Agreement or
Motorola Quotation, or at such time as may be agreed by Customer
and Motorola, make available the technical details of any and all
Customer-supplied equipment to which the System must be
interfaced. Also provide technical liaison personnel on a
full-time basis with the knowledge of Customer-supplied
equipment.
3.19 Provide any outside cable support bridges required, coaxial, and
transmission line access ports into the buildings, inside conduit
or cable ducts, any necessary inside floor trenches and cable
raceways required for installation.
3.20 Provide insurance coverage for all Equipment from FCA point.
3.21 In response to Motorola's reasonable request, use reasonable best
efforts to provide Motorola with information as may be required
to enable Motorola to comply with all applicable laws and
regulations.
3.22 Provide all Site development services and engineering drawings as
set forth in Exhibit "D", in order to enable Motorola to install
and integrate the System in accordance with the agreed upon
schedule set forth in the Implementation Schedule.
3.23 Provide capable technical personnel in order to be trained in the
operation and maintenance of the System and to interface with
Motorola with regard to operational and maintenance issues.
3.24 Perform all other obligations set forth in this Agreement and any
other agreement delivered in connection herewith.
3.25 Provide forecasts in good faith for Equipment and Services,
addressing 90-day, 180-day and annual requirements, provided that
such forecasts shall not constitute commitments to purchase
Equipment and Services or to submit orders for Equipment and
Services. These forecasts may be revised by the Customer at any
time and for any reason.
3.26 Provide Motorola with reasonable notice of any anticipated delay
in Customer's performance hereunder.
Motorola/Nextel International/[See schedule Item 3 ] 13 Installation Services Agreement
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
14
Confidential: Use or disclosure of this document is subject to the
restriction on the Confidentiality Statement.
4.0 OBLIGATIONS OF MOTOROLA
Motorola shall:
4.1 Conduct analyses to determine the required material, effort, and
services necessary for Installation and Integration at no extra
cost.
4.2 Negotiate in good faith Implementation Schedules and perform
according to such Schedules.
4.3 Negotiate in good faith the Punchlist for the System or System
Expansion and Expansion Product prior to the expiration of the
[*] period following the date of each respective Conditional
Acceptance.
4.4 Install the MSO Equipment and adjust the System or System
Expansion to the standards set out in Exhibits "B" and "C" and in
compliance with Exhibit "D".
4.5 Keep Customer advised of modifications required on a timely
basis.
4.6 Provide, at a reasonable cost to Customer, a retrofit package for
any change in standards subsequently put into effect by the
industry, the government, regulatory agencies, as well as those
promulgated by Motorola.
4.7 Continue to develop operability and reliability improvements to
iDEN technology over time to reduce the Customer's cost of
ownership on a per Subscriber basis and continue to develop and
implement new feature functionalities agreed to by the parties
throughout the term of the Agreement.
4.8 When requested to by Customer, review the frequency plan prepared
by Customer or Customer's consultant at no additional charge to
Customer. Because of differences in radio coverage and
interference models and the timeframe of implementation, this
review will not be a complete detailed alternate engineering of
the System design, but rather a review of selected design
elements in sample areas. It is understood that Motorola's
obligation is only to review the frequency plan as an
accommodation to Customer. Motorola shall not recalculate or
verify the frequency plan preparer's work and shall have no
responsibility or liability whatsoever based on this review.
4.9 Not divert to another customer any Equipment scheduled for
delivery to Customer pursuant to an accepted Purchase Order,
Project Agreement or Motorola Quotation without Customer's
approval.
Motorola/Nextel International/[See schedule Item 3 ] 14 Installation Services Agreement
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
15
Confidential: Use or disclosure of this document is subject to the
restriction on the Confidentiality Statement.
4.10 Make spares and replacement parts available for [*] from the date
of this Agreement. Motorola may substitute equivalent products
subject to Section 9.0. Spare and replacement parts prices shall
be at the then current Motorola prices.
4.11 Install and integrate the System or System Expansion and
Expansion Product in compliance with all applicable federal,
state and local laws and all rules and regulations promulgated
pursuant thereto including all Spectrum Regulatory Agency
approvals and certifications.
4.12 Use commercially reasonable efforts to accept Customer's orders,
to make timely delivery and to install and integrate the System
or System Expansion according to the Schedule set forth in the
Implementation Schedule.
4.13 Use commercially reasonable efforts to remedy all Punchlist
items, defects and problems during the warranty and maintenance
periods.
4.14 In response to Customer's reasonable request, provide Customer
with information known to Motorola which may be required to
enable Customer to comply with all applicable laws and
regulations.
4.15 Use skilled personnel, competent to perform assigned tasks.
4.16 Perform all other obligations set forth in this Agreement and any
other agreement delivered in connection herewith.
4.17 Provide Customer with reasonable notice of any anticipated delay
in Motorola's performance hereunder.
4.18 Prior to shipment Motorola will obtain type approval for any
Equipment sold herein that requires type approval in the Area.
4.19 For any new product development Motorola shall propose special
terms and conditions associated with the purchase of such new
product for the parties' approval.
4.20 All equipment sold to Customer hereunder is new and Motorola will
provide any documents which may be reasonably requested by
Customer evidencing this fact.
4.21 At the time or times contemplated herein for the transfer of
title to any equipment included in the System, Motorola shall
convey to Customer all right in and good title to such equipment
by appropriate title documents. Title to Software shall not be
conveyed to Customer at any time.
Motorola/Nextel International/[See schedule Item 3 ] 15 Installation Services Agreement
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
16
Confidential: Use or disclosure of this document is subject to the
restriction on the Confidentiality Statement.
5.0 SITE CONFIGURATIONS
This Agreement, and the prices provided in the Price Book, Project
Agreement and Motorola Quotation, are predicated on the use of certain
Site configurations provided by Customer. Customer is free to alter Site
configurations during the course of performance of this Agreement.
However, changes in site configurations may result in either increased
or decreased costs for Services related to BSC equipment, MPS equipment
and other related FNE.
6.0 PAYMENT AND PRICING
6.1 General Payment Terms
Customer shall pay to Motorola the price of Services, as set
forth in the Price Book in effect at the time of such Equipment
order or applicable Motorola Quotation, and will use an
appropriate Company purchase order to order all Services in
United States dollars, according to the following terms and
payment schedules:
6.1.1 The Price Book contains standard lead times (which are
updated as market conditions change) and expedite fees
which are incorporated by reference herein. Motorola does
not warrant that lead times can be moved in. At times
Motorola can move in such lead times by paying Motorola's
suppliers expedite fees, paying for overtime or other
methods. If Motorola is requested to perform in such
times Customer shall pay the expedite fees set forth in
the Price Book. The lead times set forth in the Price
Book will be shown for both cases where the product is
forecasted and when it is not forecasted.
6.1.2 For all Services related to [*] and for all Services
related to [*] purchased by Customer hereunder, Motorola
shall invoice [*] of the purchase price upon shipment.
Customer shall pay such invoices within [*] of issuance.
For all Services related to [*] purchased by Customer
hereunder other than [*] Motorola shall invoice [*] of the
purchase price upon shipment, [*] of the purchase price
upon Conditional Acceptance and [*] upon Final Acceptance.
[*]. Customer shall pay such invoices within [*] of
issuance.
Motorola shall from time to time set credit limits for
Customer. The credit limits shall be communicated from
Motorola's iDEN controller to Customer and Nextel
International. Motorola reserves the right to change these
amounts based upon a change in credit condition. Motorola
shall
Motorola/Nextel International/[See schedule Item 3 ] 16 Installation Services Agreement
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
17
Confidential: Use or disclosure of this document is subject to the
restriction on the Confidentiality Statement.
notify Customer and Nextel International in writing of any
credit limit change. Customer and Nextel International
warrant that they will provide and update all the relevant
financial information needed or requested by Motorola to
make these credit decisions.
If (a) any of the credit limits are exceeded by Customer
or (b) if account is delinquent for Customer or any other
NII Affiliate doing business with Motorola, then Motorola
may require (after written notice and three (3) business
day to cure) the Additional Assurance procedures set forth
in Section 6.9 before any subsequent shipment to Customer.
Motorola may hold shipments pending the receipt of
Additional Assurance if there is a material adverse change
in the business or financial condition of Customer, any
other NII Affiliate doing business with Motorola, or
Nextel International.
As long as the total of all billing disputes involving
Customer, any other NII Affiliate doing business with
Motorola, or Nextel International are less than [*],
Motorola will not request Additional Assurance until it
has used its best efforts to clear up any billing disputes
or delinquencies.
6.1.3 Taxes, duties and fees: Exclusive of corporate and
personal income taxes, all taxes applicable to this
transaction, including but not limited to sales, lease,
service rental, use, property, wage, occupation, value
added or similar taxes, customs and import duty, and any
similar provincial or local government obligations shall
be borne by Customer. Upon Motorola's request, Customer
shall produce sufficient evidence within thirty (30) days
of such request to prove that Customer has fulfilled its
obligation relating to all taxes, duties, and fees. If any
such taxes, duties, or fees are determined by the
applicable taxing authorities to be applicable to this
transaction and, notwithstanding Customer's
responsibility, Motorola is required to pay or bear the
burden thereof, then the prices set forth in the Price
Book, Project Agreement or Motorola Quotation shall be
increased by the amount of such taxes and any interest or
penalty, and Customer shall pay to Motorola the full
amount of any such increase no later than thirty (30) days
after receipt of an invoice. Motorola shall, where
possible, use reasonable efforts to minimize Customer's
tax burden unless, in Motorola's sole judgment, the effort
and/or result would be to Motorola's detriment.
6.1.4 [Intentionally Omitted]
Motorola/Nextel International/[See schedule Item 3 ] 17 Installation Services Agreement
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
18
Confidential: Use or disclosure of this document is subject to the
restriction on the Confidentiality Statement.
6.1.5 Except as provided in Section 6.1.8, Customer shall pay
for any training ordered by the Customer per the Price
Book and other appropriate agreements.
6.1.6 Subject to the conditions contained in 4.11 any costs
required to modify the System in order to comply with
local codes or regulations shall be Customer's
responsibility.
6.1.7 For any amount due hereunder which remains unpaid, the
Customer shall pay Motorola [*] of the amount due for each
month or portion thereof that the amount remains unpaid.
6.1.8 [Intentionally Omitted]
6.1.9 All prices quoted herein assume [*]. Where the customer
requires the use of [*], a price increase or decrease
equal to the applicable [*] will apply.
6.1.10 Prices do not include applicable sales, use, excise or
similar taxes or duties. To the extent Motorola is
required by law to collect such taxes, one hundred percent
(100%) thereof shall be added to invoices and paid in full
by Customer.
6.2 Method of Payment
Payment shall be made by wire/telegraphic transfer to the
following address:
[*]
Routing No.: [*]
Account No.: [*]
Address: [*]
6.3 Prices Generally
Under Section 4.22 of the iDEN Infrastructure [*] Supply
Agreement effective as of January 1, 1999 between Motorola, Inc.
and Nextel Communications, Inc., [*]. Pursuant to that Section
4.22, Motorola and Customer agree that throughout the term of the
January 1, 1999 agreement between Motorola and Nextel
Communications, Inc. [*]. Notwithstanding anything to the
contrary in this agreement, [*].
6.4 [Intentionally Omitted]
6.5 [Intentionally Omitted]
6.6 Security Interest
Motorola/Nextel International/[See schedule Item 3 ] 18 Installation Services Agreement
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
19
Confidential: Use or disclosure of this document is subject to the
restriction on the Confidentiality Statement.
In order to secure outstanding payment obligations hereunder,
Customer hereby grants to Motorola a continuing security interest
and right of possession in and to all equipment serviced by
Motorola for Customer under this Agreement whether or not such
goods are manufactured by Motorola, whether now owned or
hereafter acquired by Customer, together with all substitutions,
replacements and renewals thereof, and in all proceeds and
products thereof, including without limitation, insurance
proceeds, all termed collateral. Customer agrees to cooperate in
whatever manner necessary to assist Motorola in perfection of the
security interest upon request. If there is any conflict between
this Paragraph and any other financing agreement(s) with
Motorola, such financing Agreement(s) shall take precedence.
6.7 [Intentionally Omitted]
6.8 Notwithstanding anything to the contrary in this Agreement, [*].
6.9 Additional Assurance Payment Terms
Payment for equipment and services to Motorola requiring
Additional Assurance shall be made in U.S. dollars either by
wire/telegraphic transfer in advance or through the medium of an
irrevocable Letter of Credit, permitting partial and
transshipments.
6.9.1 Letter of Credit Terms
At least [*] before the first shipment of equipment under
Section 6.9, Customer shall issue an irrevocable Letter of
Credit made out in favor of Motorola, Inc., ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇, similar to
the one included in this Agreement as Attachment One and
advised through, and payable at the counters of the [*].
Drafts are to be drawn upon the [*] and full reimbursement
instructions must be provided to the U.S. bank by the
opening bank at the time the Letter of Credit is opened.
6.9.2 Advance Payment
An Advance Payment of [*] of the total amount set forth in
any applicable order is due within [*] of ordering. The
start date for the Implementation Schedule for the
applicable Project Agreement pursuant to Exhibit "A" shall
be the date of receipt of this payment. This advance
payment shall be made by wire/telegraphic transfer to the
following address:
Motorola/Nextel International/[See schedule Item 3 ] 19 Installation Services Agreement
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
20
Confidential: Use or disclosure of this document is subject to the
restriction on the Confidentiality Statement.
[*]
Routing No.: [*]
Account No.: [*]
Address: [*]
In the event Customer does not proceed with its payment
obligations under this Agreement in a timely manner, and
such failure continues for thirty (30) days following
written notice by Motorola to Customer that Motorola
intends to proceed under this Section, Motorola shall
promptly document its non-recoverable costs directly
incurred in the performance of this Agreement, such as,
but not limited to staff hours, travel expenses, equipment
re-stocking charges, etc. and promptly refund only that
portion of the advance payment amount which exceeds the
total of such charges.
The Letter of Credit shall be in the amount of [*] of the
total Exhibit "A" amount and shall be valid for a period
of [*] from the date of issuance. An advance payment of
[*] per Section 6.9.2 shall also be due Motorola shall
notify Customer, in writing, [*] prior to the scheduled
date of each shipment.
The Letter of Credit shall be drawn down as follows:
a) [*] of the commercial invoice gross value of the
equipment shipped is payable after each shipment.
b) [*] of commercial invoice gross value is payable
after presentation of the Conditional Acceptance
Certificate.
c) [*] of the commercial invoice gross value is payable
after presentation of the final Acceptance
Certificate.
If Motorola is prevented from obtaining Conditional
Acceptance because Customer has not completed its
obligations hereunder (except as provided in Section 18)
and such failure continues for ten (10) days from the
scheduled date of Conditional Acceptance, Motorola shall
be entitled to receive the final payments, described in b
and c above, as if Conditional Acceptance had occurred as
scheduled in the Implementation Schedule for the
applicable Project Agreement pursuant to Exhibit "A" upon
showing that Motorola had completed all the work it could
have based on Customer's performance.
Banking charges incurred by the opening bank shall be
borne by [*] and those incurred by the U.S. bank [*] shall
be borne by [*].
Motorola/Nextel International/[See schedule Item 3 ] 20 Installation Services Agreement
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
21
Confidential: Use or disclosure of this document is subject to the
restriction on the Confidentiality Statement.
7.0 ACCEPTANCE TESTING
7.1 Customer and Motorola agree that the acceptance testing shall be
done for all new Systems and a modified ATP shall be performed
for all System Expansions and shall be included in all relevant
Purchase Orders, Project Agreements, and Motorola Quotations. The
ATP tests shall be chosen from the GATP, as set forth in Exhibit
"C", that Customer and Motorola have agreed to and identified on
the Project Agreement or Motorola Quotation when Customer
purchases ATP Services.
This ATP is generic in nature and tests operational features.
Should a certain feature or option not be purchased then it is
agreed that portion of the ATP shall be deleted and will not be
performed. Motorola shall supply new sections to cover new
products or features that Motorola develops. The GATP will be
amended to reflect desired practices for testing Systems in
Commercial Service. Customer and Motorola acknowledge that
different approaches are required for Systems in Commercial
Service and those acceptable for Systems not in Commercial
Service.
7.2 Should Customer request additional testing above and beyond the
ATP, these tests shall not be considered until after Conditional
Acceptance of the System or System Expansion. Motorola shall
prepare and present to Customer a quotation detailing the time
and material charges that such additional testing may require on
a time and material basis. [*].
7.3 Individual Site Tests and the Switch Test shall be performed in
accordance with the ATP as soon as the individual Sites and
Switch are completed. The System Test shall be performed as soon
as the Switch and Site Tests are completed. If all the Sites are
not available and operational due to Customer's failure to obtain
the Sites by the required scheduled time as contained in the
Implementation Schedule hereto ("Unavailable Sites"), the tests
shall still take place.
7.4 The Areas served by the Unavailable Sites shall not be included
in the System Test. When the Unavailable Sites are operational
and available, the Site Test shall be completed. The existence of
Unavailable Sites shall not hold up the ATP or Conditional or
Final Acceptance.
7.5 Additional Testing Costs
The cost of obtaining a passing test for each of the items in the
ATP is included in the purchase price of the ATP. Any additional
testing requested and approved by
Motorola/Nextel International/[See schedule Item 3 ] 21 Installation Services Agreement
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
22
Confidential: Use or disclosure of this document is subject to the
restriction on the Confidentiality Statement.
Customer shall be billed to Customer as set forth in Section 7.2.
This includes, but is not limited to, testing due to:
a. Customer's desire for testing not included in the ATP; and
b. Re-testing that is needed because the Customer's Site team
makes changes to agreed schedules to such an extent Motorola
needs to materially extend the time period its ATP team needs
to complete the ATP; and
c. RF interference from outside sources; and
d. The need to respond to complaints of third parties alleging
Customer's System interferes with their systems, unless the
Equipment sold hereunder is defective or not operating within
licensed parameters; and
e. Unavailable Sites.
8.0 SERVICES WARRANTY AND SOFTWARE MAINTENANCE PROGRAM
8.1 Services Warranty
Motorola represents and warrants that all Services provided
hereunder will be performed in a good and workmanlike manner and
in accordance with Motorola's specifications. In the event that
Customer reasonably determines that any work has not been
performed in a good and workmanlike manner or in accordance with
the specifications, Customer shall promptly notify Motorola. If
Motorola determines that the Services were defective, then
Motorola shall take prompt remedial action to repair or replace
the defective Services [*].
8.2 This Warranty does not cover defects, damage, or malfunctions
resulting from:
8.2.1 Use of the products in other than their normal and
customary manner.
8.2.2 Misuse, accident, neglect, environmental or Site
conditions not conforming to the specifications for the
product as set out in the current Equipment
specifications, or unauthorized access to source or object
code or unauthorized manipulation of Software elements
8.2.3 Unauthorized alterations or repairs, use of un-approved
parts in the products or the combination or interfacing of
the products, use of "▇▇▇▇ market" parts or components, in
each case in a manner not approved by Motorola which
approval shall not be unreasonably withheld or delayed.
Motorola/Nextel International/[See schedule Item 3 ] 22 Installation Services Agreement
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
23
Confidential: Use or disclosure of this document is subject to the
restriction on the Confidentiality Statement.
"▇▇▇▇ market" components or parts are those components or
parts purchased (a) outside the United States or (b) from
unauthorized sellers of such components or parts.
8.2.4 An event of Force Majeure.
8.2.5 Installation, integration, or movement of products from
their original installation Site that is not in accordance
with Motorola hardware configuration and datafill
guidelines.
8.2.6 Failure of antennas, lines, or any part of the
Interconnect Facilities.
8.2.7 Failure of Customer to maintain or provide maintenance for
the System pursuant to Motorola Equipment and Software
maintenance agreements, or other maintenance,
substantially in accordance with the Documentation and
under the supervision of one or more individuals who shall
have completed appropriate Motorola training.
8.2.8 Damage which occurs during shipment of the product to
Motorola for warranty repair.
8.3 Except as associated with an agreed-to assignment, this express
warranty is extended by Motorola to Customer only and is valid
only in the Area.
8.4 Software Maintenance Program (SMP)
8.4.1 Customer commits to purchase in-country SMP services on an
annual basis for each year of the term of this Agreement
for all its iDEN Equipment and Software. The in-country
SMP services are defined in Exhibit "O". The SMP Agreement
shall be evidenced by Customer's Purchase Order indicating
which sections of said proposal are agreed to by Customer
and Motorola. Any additional services agreed to by
Customer and Motorola shall also contain applicable
pricing for such services.
8.4.2 [Intentionally Omitted]
8.4.3 [Intentionally Omitted]
8.5 [Intentionally Omitted]
8.6 [Intentionally Omitted]
Motorola/Nextel International/[See schedule Item 3 ] 23 Installation Services Agreement
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
24
Confidential: Use or disclosure of this document is subject to the
restriction on the Confidentiality Statement.
8.7 THE WARRANTIES IN THIS AGREEMENT ARE GIVEN IN LIEU OF ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, WHICH ARE SPECIFICALLY EXCLUDED,
INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL MOTOROLA BE
LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL OR
PUNITIVE DAMAGES TO THE FULL EXTENT SUCH MAY BE DISCLAIMED BY
LAW.
MOTOROLA WARRANTS THAT FOR THE TERM OF THIS AGREEMENT THAT THE
INDIVIDUAL FNE PRODUCTS WILL OPERATE TOGETHER AS A SYSTEM WITHIN
GENERAL OPERATING LIMITS SPECIFIED IN EXHIBIT "B", SO LONG AS THE
AVERAGE SUBSCRIBER USAGE CHARACTERISTICS OF THE INDIVIDUAL FNE
PRODUCTS AT BUSY HOUR DO NOT CAUSE THE PEAK CAPACITY LIMITS OF
INDIVIDUAL FNE PRODUCTS TO BE EXCEEDED AND ANY EQUIPMENT
INSTALLED BY THE CUSTOMER WITHOUT MOTOROLA INTEGRATION AND GATP
ASSISTANCE IS INSTALLED IN ACCORDANCE WITH MOTOROLA HARDWARE
CONFIGURATION AND DATAFILL GUIDELINES; BATTERIES ARE EXCLUDED BUT
CARRY THEIR OWN SEPARATE LIMITED WARRANTY FROM THEIR
MANUFACTURER. MOTOROLA DISCLAIMS LIABILITY FOR RF COVERAGE UNDER
THIS WARRANTY.
9.0 PRODUCT CHANGES OR SUBSTITUTIONS
At any time during its performance of this Agreement, Motorola
may implement changes in the products set forth in Exhibit "B",
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:
(1) shall not materially or adversely affect physical
or functional interchangeability or performance
(except where there is written agreement between
Customer and Motorola that the change can be made
after Customer knows the effect thereof);
(2) shall not detract from the safety of the product;
and
(3) shall be Spectrum Regulatory Agency type-accepted,
if required.
(4) Motorola shall notify Customer of any change that
materially affects performance of the Equipment.
Motorola/Nextel International/[See schedule Item 3 ] 24 Installation Services Agreement
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
25
Confidential: Use or disclosure of this document is subject to the
restriction on the Confidentiality Statement.
10.0 DISCLAIMER OF PATENT LICENSE AND INTERFACE LICENSES
10.1 Nothing contained in this Agreement shall be deemed to grant,
either directly or by implication, any license under any patents
or patent applications of Motorola, except that Customer 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.
10.2 If Nextel Communications, Inc. obtains a second source for iDEN
infrastructure Equipment, Motorola shall extend Interface
Licenses to qualified licensees on terms to be negotiated to
cover Customer.
11.0 INTELLECTUAL PROPERTY INDEMNITY -- [Intentionally Omitted]
12.0 CONFIDENTIALITY
12.1 From time to time during the performance of this Agreement, the
parties may deem it necessary to provide each other with
Confidential Information. The parties agree:
12.1.1 To maintain the confidentiality of such Confidential
Information and not disclose same to any third party,
except as provided below or as authorized by the original
disclosing party in writing, or in connection with a
public or private debt or equity offering of securities by
any party or its affiliates, or as required by law or a
court or as required for compliance with the United States
federal securities laws and [See schedule Item 3]
securities laws, provided no documents shall be given to
the Securities and Exchange Commission ("SEC") or the [See
schedule Item 3] securities authorities until Motorola has
had an opportunity to review them. Any such information
that Motorola believes is confidential Customer will use
its reasonable best efforts to get confidential treatment
from the SEC and the [See schedule Item 3] securities
authorities. Such Confidential Information also includes
oral and visual Confidential Information.
12.1.2 To restrict disclosure of Confidential 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.
12.1.3 To take precautions necessary and appropriate to guard the
confidentiality of Confidential Information, including
informing its employees and
Motorola/Nextel International/[See schedule Item 3 ] 25 Installation Services Agreement
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
26
Confidential: Use or disclosure of this document is subject to the
restriction on the Confidentiality Statement.
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.
12.1.4 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.
12.1.5 To use such Confidential Information only as required in
performance of this Agreement.
12.2 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 [*]
from the date of execution hereof without the prior written
consent of the other except as provided for in Section 12.1.1.
13.0 TRADEMARK AND PUBLICITY
Nothing contained in this Agreement shall be construed as conferring any
right to use any name, trademark or other designation of either party
hereto, including any contraction, abbreviation, or simulation of any of
the foregoing, in advertising, publicity or marketing activities. No
publicity, advertising, etc. with regard to this Agreement or the System
which mentions the other party shall be released without prior written
consent of the other party.
14.0 [Intentionally Omitted]
15.0 INSURANCE
15.1 [Intentionally Omitted]
15.2 [Intentionally Omitted]
15.3 [Intentionally Omitted]
15.4 DURING THE TERM OF THIS AGREEMENT THE PARTIES SHALL INDEMNIFY AND
HOLD HARMLESS EACH OTHER TOGETHER WITH THEIR DIRECTORS, OFFICERS,
AGENTS, EMPLOYEES, AFFILIATES AND SUBSIDIARIES FROM ANY AND ALL
LOSS, DAMAGE, EXPENSE, JUDGMENT, LIEN, SUIT, CAUSE OF ACTION,
DEMAND OR LIABILITY
Motorola/Nextel International/[See schedule Item 3 ] 26 Installation Services Agreement
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
27
Confidential: Use or disclosure of this document is subject to the
restriction on the Confidentiality Statement.
(COLLECTIVELY, "LOSS") FOR PERSONAL INJURY (INCLUDING DEATH) AND
TANGIBLE PROPERTY DAMAGE WHICH MAY BE IMPOSED ON OR INCURRED BY
ONE PARTY ARISING DIRECTLY OUT OF THE INTENTIONAL MISCONDUCT OR
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 (I) PROMPT NOTICE OF ANY
SUCH CLAIM OR SUIT; AND (II) FULL OPPORTUNITY TO DEFEND 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. THE INDEMNIFIED PARTY MAY, AT ITS
ELECTION, PARTICIPATE IN THE DEFENSE OF ANY SUIT, AND SHALL
COOPERATE FULLY IN DEFENDING ANY CLAIM OR SUITS. THE
INDEMNIFYING PARTY SHALL PAY ALL COSTS, EXPENSES, AND REASONABLE
ATTORNEY'S FEES INCURRED BY THE INDEMNIFIED PARTY IN CONNECTION
WITH ANY SUCH SUIT OR IN ENFORCING THIS INDEMNITY PROVISION,
PROVIDED A VALID CLAIM IS PRESENTED.
WITHOUT LIMITING THE FOREGOING PARAGRAPH, EACH PARTY SHALL
INDEMNIFY AND HOLD HARMLESS THE OTHER PARTY, ITS DIRECTORS,
OFFICERS, AGENTS, EMPLOYEES, AFFILIATES AND SUBSIDIARIES FROM ANY
AND ALL LOSS, AS DEFINED IN THAT PARAGRAPH, WHICH IS BASED UPON
OR ALLEGED TO ARISE FROM, ANY STATEMENT, REPRESENTATION,
INFORMATION OR OTHER COMMUNICATION MADE BY THE PARTY, ITS
OFFICERS, EMPLOYEES, UNDERWRITERS, OR AGENTS TO OFFEREES,
PURCHASERS OR POTENTIAL CUSTOMERS OF CUSTOMER STOCK OR OTHER
SECURITIES, INCLUDING BUT NOT LIMITED TO ANY STATEMENT,
REPRESENTATION, INFORMATION OR OTHER COMMUNICATION CONCERNING
THIS AGREEMENT, THE IDEN SYSTEM, SPECIALIZED MOBILE RADIO SYSTEMS
OR TECHNOLOGY IN GENERAL AND INCLUDING BUT NOT LIMITED TO ANY
LOSS ARISING UNDER APPLICABLE SECURITIES LAWS.
Motorola/Nextel International/[See schedule Item 3 ] 27 Installation Services Agreement
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
28
Confidential: Use or disclosure of this document is subject to the
restriction on the Confidentiality Statement.
15.5 Customer and Motorola each shall be named as additional insured
under the other's comprehensive general liability policy for
claims arising out of work performed hereunder (which includes
but is not limited to product and public liability, property and
all risk insurance).
16.0 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 caused by any of the following which are beyond the
reasonable 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 and regulatory actions,
strikes or other labor disturbances, hurricanes,
earthquakes, fires, floods, epidemics, embargoes, war,
riots, delays in transportation, and loss or damage to
goods in transit, 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
performance shall be extended for a period equal to the period of
time lost by reason of the delay. If any such delay lasts for
more than one hundred eighty (180) days, Customer and Motorola
shall consult with one another for the purpose of agreeing upon
the basis on which the delayed party shall resume work at the end
of the delay. If no reasonable solution to the delay is
available, then either party may, by written notice, cancel that
portion of the Agreement which is delayed, and adjust the
Agreement price appropriately.
17.0 TERMINATION
17.1 Either party may terminate this Agreement without liability by
the giving of notice, in accordance with Section 23, if (i) the
other makes a general assignment for the benefit of creditors or
goes into compulsory or voluntary liquidation, (ii) if a petition
in bankruptcy or under any insolvency law is filed by or against
the other and such petition is not dismissed within sixty (60)
days after it has been filed, or (iii) the other shall commit any
material breach of its obligations hereunder.
In the case of any material breach, neither party shall terminate
this Agreement unless and until the other shall have failed to
cure such breach within thirty (30)
Motorola/Nextel International/[See schedule Item 3 ] 28 Installation Services Agreement
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
29
Confidential: Use or disclosure of this document is subject to the
restriction on the Confidentiality Statement.
days after it shall have been served with a notice, in
accordance with Section 23, (i) stating the nature of the
breach, (ii) requiring that the breach be cured, and (iii)
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.
17.3 If this Agreement is terminated, Motorola shall have the right to
determine whether any unfilled Purchase Orders, Project
Agreements, or Motorola Quotations in existence at the time of
such termination shall be completed under the terms of this
Agreement or canceled.
18.0 LIMITATION OF LIABILITY
NEITHER PARTY, EXCEPT AS SPECIFICALLY OTHERWISE PROVIDED HEREIN, WHETHER
AS A RESULT OF BREACH OF AGREEMENT, WARRANTY, TORT (INCLUDING WITHOUT
LIMITATION NEGLIGENCE), PATENT INFRINGEMENT, COPYRIGHT INFRINGEMENT, OR
OTHERWISE, SHALL HAVE ANY LIABILITY 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, (EXCEPT REPLACEMENT PRODUCTS UNDER SECTIONS
9 AND 13), FACILITIES OR SERVICE, OR DOWNTIME COSTS OR CLAIMS OF THIRD
PARTIES TO THE FULL EXTENT SUCH MAY BE DISCLAIMED BY LAW.
19.0 ASSIGNMENT
19.1 [Intentionally Omitted]
19.2 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. Specifically, Motorola may assign this Agreement,
provided that Motorola, Inc. shall remain liable for performance
hereunder. It is intended that Motorola will assign this
Agreement to its local [See schedule Item 3] subsidiary in order
to perform the services in [See schedule Item 3]. This Agreement
shall not be otherwise assigned by either party without the prior
written consent of the other party.
Motorola/Nextel International/[See schedule Item 3 ] 29 Installation Services Agreement
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
30
Confidential: Use or disclosure of this document is subject to the
restriction on the Confidentiality Statement.
19.3 Notwithstanding anything to contrary elsewhere in this Agreement,
Customer may pledge, mortgage or otherwise assign all or any
portion of this Agreement or any orders hereunder (or any
combination thereof) to one or more providers of debt or equity
financing (provided any such intended assignee is not a person or
entity listed on the United States Department of Commerce Denied
Parties List or to a person or entity residing in a country to
which export of the iDEN Equipment is prohibited under United
States law) upon terms and conditions satisfactory to Customer,
provided that (i) Customer will remain liable for all obligations
arising out of this Agreement, (ii) the assignee agrees in
writing that the terms and conditions of this Agreement shall
apply to and be binding upon the assignee to the same extent as
Customer, to the extent that the assignee is exercising any right
under this Agreement, (iii) in addition to any rights conferred
on the assignee, and Customer shall be treated as having placed
the order and paid for purchases for purposes of all rights and
benefits available to Customer under this Agreement.
19.4 Motorola retains the right to subcontract, in whole or in part,
any effort required to fulfill its obligations under this
Agreement, provided Motorola shall remain liable for performance
hereunder.
19.5 [Intentionally Omitted]
19.6 [Intentionally Omitted]
20.0 [Intentionally Omitted]
21.0 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
[See schedule Item 3] without regard to its conflicts of laws
provisions.
22.0 ORDER OF PRECEDENCE
In the event of an inconsistency in this Agreement, the inconsistency
shall be resolved by giving precedence in the following order:
22.1 This Agreement and duly executed amendments thereto, with the
latest amendment precedence over earlier amendments;
22.12 [Intentionally Omitted]
22.13 The Price Book, as may be amended from time to time by Motorola;
Motorola/Nextel International/[See schedule Item 3 ] 30 Installation Services Agreement
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
31
Confidential: Use or disclosure of this document is subject to the
restriction on the Confidentiality Statement.
22.14 Purchase Orders and duly executed Change Orders thereto, with the
latest Change Order taking precedence over earlier Change Orders;
22.15 Project Agreements or Motorola Quotations and duly executed
Change Orders thereto, with the latest Change Order taking
precedence over earlier Change Orders;
22.6 All other Exhibits in alphabetical order and all duly executed
Amendments or Change Orders to said Exhibits.
Purchase Orders will be used only to identify the quantity, location,
price, and payment terms as allowed by this Agreement for Services
ordered. No pre-printed or other terms and conditions on such Purchase
Orders shall apply, and the terms and conditions herein shall control.
23.0 NOTICE
23.1 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 recognized express mail, 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.
23.1.1 Customer shall receive notices as follows:
[See schedule Item 1]
[See schedule Item 2]
Attention: President
[See schedule Item 6]
23.1.2 Nextel International shall receive notices as follows:
Nextel International, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: V. P. Operations
Fax: [*]
With a copy to:
Motorola/Nextel International/[See schedule Item 3 ] 31 Installation Services Agreement
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
32
Confidential: Use or disclosure of this document is subject to the
restriction on the Confidentiality Statement.
Nextel International, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel's Office
Fax: [*]
23.1.3 Motorola shall receive notices as follows:
Motorola, Inc.
Network Solutions Sector
Customer Solutions Group
North American Region
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
Attention: Vice President and Director iDEN North
American Operations
Fax # : [*]
With a copy to:
Motorola, Inc.
Network Solutions Sector
Customer Commercial Relations
North American Region
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Director, Contracts and Regulatory
Fax #: [*]
23.2 Either party may change the addresses for giving notice from time
to time by written instructions to the other of such change of
address.
24.0 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 it shall
survive.
25.0 COVENANT NOT TO SOLICIT EMPLOYMENT
Customer and Motorola hereto agree that during the period of time
beginning with the execution of this Agreement and ending with the
termination of this Agreement, neither party shall solicit any employee
of the other involved in providing engineering, installation,
integration, maintenance, and/or warranty service or to encourage such
Motorola/Nextel International/[See schedule Item 3 ] 32 Installation Services Agreement
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
33
Confidential: Use or disclosure of this document is subject to the
restriction on the Confidentiality Statement.
employee to work for the other. If, at any time, this provision is found
to be overly broad under the laws of an applicable jurisdiction, this
provision shall be modified as necessary to conform to such laws rather
than be stricken herefrom.
26.0 GENERAL
Failure or delay on the part of Motorola or Customer to exercise any
right, power, or privilege hereunder shall not operate as a waiver. 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 state or federal court, such invalidity
shall not affect the enforceability of any other provisions not held to
be invalid. Section and paragraph headings used in this Agreement are
for convenience only and are not to be used to construe the provisions
of this Agreement.
27.0 AUTHORITY
Each party hereto represents and warrants that:
27.1 It has obtained all necessary approvals, consents and
authorizations of third parties and governmental authorities to
enter into this Agreement and has obtained or will obtain all
necessary approvals, consents and authorizations of third parties
and governmental authorities to perform and carry out its
obligations hereunder;
27.2 The persons executing this Agreement on its behalf have express
authority to do so, and, in so doing, to bind the party thereto;
27.3 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;
27.4 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.
28.0 TERM
The term of this Agreement shall be from June 30, 2000 until December
31, 2003 unless an Exhibit provides otherwise.
Motorola/Nextel International/[See schedule Item 3 ] 33 Installation Services Agreement
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
34
Confidential: Use or disclosure of this document is subject to the
restriction on the Confidentiality Statement.
29.0 RE-EXPORTATION OF TECHNICAL DATA OR PRODUCTS
Customer understands that all equipment, proprietary data, know-how,
software, or other data or information obtained by Customer from
Motorola is considered to be United States technology and is licensed
for export and re-export by the United States Government. Customer
therefore agrees that it will not, without the prior written consent of
Motorola and the Office of Export Control, United States Department of
Commerce, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇, 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 prohibited or restricted under United States law. Customer
understands that the list of prohibited or restricted destinations 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.
30.0 DISPUTES AND DISPUTE RESOLUTION
The parties 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, except for
disputes related to alleged patent, copyright, or trademark
infringement, the dispute will be mediated by a mutually acceptable
mediator to be chosen by the Motorola and Customer within thirty (30)
days after written notice by the other demanding mediation. Neither
party may unreasonably withhold consent to the selection of a mediator,
and Motorola and Customer will share the costs of the mediation equally.
Venue for mediation shall be the United States of America. 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.
Any dispute which the parties cannot resolve through negotiation,
mediation, or other form of ADR within four (4) months of the date of
the initial demand for it may then be submitted to the Federal District
Court of Delaware for resolution. The use of any ADR procedures will not
be construed under the doctrines of latches, waiver, or estoppel to
affect adversely the rights of either party. Nothing in this section
will prevent either party from resorting to judicial proceedings if (a)
good faith efforts to resolve the dispute under these procedures have
been unsuccessful or (b) interim relief from a court is necessary to
prevent serious and irreparable injury to one party or to others.
Motorola/Nextel International/[See schedule Item 3 ] 34 Installation Services Agreement
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
35
Confidential: Use or disclosure of this document is subject to the
restriction on the Confidentiality Statement.
31.0 LANGUAGE
The definitive text of this Agreement and its Exhibits shall be in
English and all communications among the parties in the course of the
present Agreement shall be made in English.
32.0 GOVERNMENT CONTRACTS
In the event that Customer elects to provide goods or services to a
Governmental Entity (defined herein), Customer does so solely at its
option and risk and agrees not to obligate Motorola as a subcontractor
or otherwise to such Governmental Entity. Customer remains solely and
exclusively responsible for compliance with all statutes, regulations,
and provisions governing sales to such entity. Motorola makes no
representations, certifications, or warranties whatsoever with respect
to the ability of its goods, services, or prices to satisfy any
statutes, regulations, or provisions governing sales of goods or
services to such Governmental Entity. The term "Governmental Entity" as
used above includes any government agency, federal, provincial, or
municipal, any United States federal, state, or local government,
agency, or instrumentality as well as any other non-United States
government, agency, or instrumentality. Notwithstanding the above, if
Customer elects to sell goods or services to a Governmental Entity,
Motorola will review any Customer request for, readily available
information which Motorola may, at its option supply.
33.0 SEVERABILITY
In the event that any one or more of the provisions contained in the
Agreement or in any of the Exhibits hereto should be determined to be
invalid, illegal, or unenforceable in any respect, the validity,
legality, and enforceability of the remaining provisions shall not in
any way be affected or impaired. The parties shall endeavor in good
faith to replace any invalid, illegal, or unenforceable provision with a
valid provision, the economic effect of which comes as close as possible
to that of the invalid, illegal, or unenforceable provision.
34.0 ENTIRE AGREEMENT
This Agreement and the Exhibits hereto constitute the entire
understanding among the parties concerning the subject matter hereof and
supersede all prior discussions, agreements, and representations,
whether oral or written, and whether or not executed by the parties. The
subject matter of this Agreement is iDEN Infrastructure installation
services purchases. Documents or agreements relating to the parties'
equity ownership in each other, if any, Customer's purchases of
Subscriber Equipment or Motorola financing agreements are not superseded
by this Agreement. The Equipment and Services purchased on or before
June 30, 2000 under the terms and conditions of the [See schedule
Motorola/Nextel International/[See schedule Item 3] 35 Installation Services Agreement
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
36
Confidential: Use or disclosure of this document is subject to the
restriction on the Confidentiality Statement.
Item 4] shall be governed by such agreements. All in-country Services
purchased on or after June 30, 2000 shall be governed by the terms and
conditions of this Agreement.
No modification, Amendment, or other change may be made to this
Agreement or any Exhibit unless reduced to writing and executed by
authorized representatives of all parties, or in the case of a Change
Order executed by authorized representatives of Customer and Motorola.
The terms and conditions of this Agreement shall prevail notwithstanding
any variance with the terms and conditions of any order submitted by
Customer or any acceptance or acknowledgment by Motorola following
execution of this Agreement. In no event shall the preprinted terms and
conditions found on any Customer purchase order, Motorola
acknowledgment, a Change Order, or other form be considered an
Amendment, or modification of this Agreement, even if such documents are
signed by representatives of all parties. Such preprinted terms and
conditions shall be null and void and of no force and effect.
35.0 COUNTERPARTS
This Agreement may be executed in multiple counterparts, each of which
shall be deemed an original and all of which taken together shall
constitute one and the same instrument.
Motorola/Nextel International/[See schedule Item 3 ] 36 Installation Services Agreement
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
37
Confidential: Use or disclosure of this document is subject to the
restriction on the Confidentiality Statement.
36.0 COMMENCEMENT OF WORK
Motorola's obligations to commence work hereunder shall begin upon the
date which Purchase Orders are acknowledged by Motorola or Project
Amendments are signed and delivered to Customer and Motorola. All time
periods for completion of Motorola's obligations shall commence on such
date.
THIS AGREEMENT IS EFFECTIVE AS OF THE 30 DAY OF JUNE 2000 ("EFFECTIVE DATE").
MOTOROLA, INC. [SEE SCHEDULE ITEM 2]
[SEE SCHEDULE ITEM 5]
By: By:
------------------------------------ ---------------------------------------
(Authorized Signatory) (Authorized Signatory)
Name Name
------------------------------------ ---------------------------------------
Title: Title:
------------------------------------ ---------------------------------------
NEXTEL INTERNATIONAL, INC.
By: By:
------------------------------------ ---------------------------------------
(Authorized Signatory)
Name Name
------------------------------------ ---------------------------------------
Title: Title:
------------------------------------ ---------------------------------------
Motorola/Nextel International/[See schedule Item 3 ] 37 Installation Services Agreement
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
38
Confidential: Use or disclosure of this document is subject to the
restriction on the Confidentiality Statement.
EXHIBIT LIST
EXHIBIT "A" Project Agreements
EXHIBIT "B" Technical Overview: Notes On The iDEN System [The current
version is maintained on the iDEN web site. A hard copy of the
present version (68P81095E55-D dated May 11, 1999) is attached.]
EXHIBIT "C" System Performance Criteria and Acceptance Test Plan
EXHIBIT "D" Implementation Engineering, Site Preparation, Installation and
Integration
EXHIBIT "E" System Maintenance
EXHIBIT "F" [Intentionally Omitted]
EXHIBIT "G" [Intentionally Omitted]
EXHIBIT "H" [Intentionally Omitted]
EXHIBIT "I" [Intentionally Omitted]
EXHIBIT "J" [Intentionally Omitted]
EXHIBIT "K" [Intentionally Omitted]
EXHIBIT "L" Price Book, [*]
EXHIBIT "M" [Intentionally Omitted]
EXHIBIT "N" [Intentionally Omitted]
EXHIBIT "O" Year 2000 SMP Proposal for Customer, dated March 14, 2000
Motorola/Nextel International/[See schedule Item 3 ] 38 Installation Services Agreement
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
39
Motorola/Nextel International Exhibit "A" "A"-1
August 9, 2000 Installation Services Agreement
EXHIBIT "A"
TO iDEN(R) INFRASTRUCTURE INSTALLATION SERVICES AGREEMENT
PROJECT AGREEMENTS
For purposes of uniformity and brevity, references to "Agreement" or "Purchase
Agreement" or to an Exhibit shall refer to the above-referenced Agreement to
which this document is Exhibit "A" and to the other Exhibits to that Agreement.
All definitions set forth in the Agreement shall apply hereto.
1.0 PROJECT AGREEMENT PROCESS
The scope of a Project is limited to the Purchase Orders and the Motorola
Generic Statement of Work referenced in the Project Agreement. The Project
Agreement is intended neither as a reconciliation document nor as a means to
purchase Equipment, Software, and/or Services. All financial transactions shall
be conducted in accordance with the applicable Purchase Orders. A Project
Agreement format and example are attached to this Exhibit "A" as Appendices I
and II, respectively.
1.1 Upon acceptance of one or more Purchase Orders containing a grouping of
items that meets the definition of a System or System Expansion, Motorola shall
initiate a Project Agreement.
1.2 A Motorola Generic Statement of Work that defines the Project shall be
selected from the Price Book and referenced in Section I of the Project
Agreement. In the event an appropriate statement of work is not included in the
Price Book, a custom statement of work shall be incorporated into the Project
Agreement. The project Generic ATP sections will be listed in Section IV of the
Project Agreement.
1.3 The Purchase Order number(s), applicable line items, and values shall be
referenced in Section II of the Project Agreement for identification purposes
only. The total value of the Project Agreement shall reflect the System or
System Expansion requirements as described in the Customer Purchase Order(s).
1.4 Motorola does not warrant that a Project Agreement will contain all
necessary requirements for completion of the specific System or System Expansion
Project stated in the Project Agreement. Motorola is responsible only for the
Equipment, Software, and Services set forth and provided by Customer in the
Purchase Orders issued for the Project. Additional Purchase Orders will be
required and incorporated into the Project Agreement by amendment, as
Confidential: Use or disclosure of this document is subject to the restrictions
in the Confidentiality provision.
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
40
Motorola/Nextel International Exhibit "A" "A"-2
August 9, 2000 Installation Services Agreement
appropriate, in the event additional Equipment, Software, and/or Services are
requested for completion of the Project.
1.5 The Implementation Schedule shall be defined via the format specified in
the Project Agreement, Appendix I, Section III, and may be modified, as
required, via mutual agreement. See Section 4.3 below for additional
Implementation Schedule requirements.
1.6 The completed Project Agreement will be forwarded to Customer for
countersigning within sixty (60) days of the last Purchase Order received that
contains items for the System or System Expansion Project. Execution by Customer
and Motorola of the Project Agreement shall be in accordance with the signatory
requirements of the Supply Agreement.
2.0 PROJECT AGREEMENT AMENDMENTS
Amendments to existing Project Agreements shall be subject to mutual agreement.
Amendments may result in price and schedule changes that shall be addressed by
execution of a revised Implementation Schedule and/or Purchase Order.
3.0 PROJECT AGREEMENT TERMS AND CONDITIONS
3.1 Order of Precedence
This Exhibit "A" is subject to the terms and conditions in the Supply Agreement.
Each Project Agreement will be subject to the Supply Agreement, specifically
including Exhibit "A". In the event of a conflict, the order of precedence shall
be as follows: (1) the Supply Agreement, (2) Exhibit "A", and (3) the Project
Agreement.
3.2 Motorola Generic Statements of Work
The System or System Expansion Project described in each Project Agreement shall
be installed in accordance with the applicable Generic Statement of Work set
forth in the Price Book or as developed by mutual agreement between the parties.
3.3 Implementation Schedule
The System or System Expansion Project defined in a Project Agreement is subject
to the Implementation Schedule contained in Section III of the Project
Agreement. Said schedule shall be mutually agreed to no later than 60 days after
the final Purchase Order is issued and accepted. In the event the Project
includes an MSC expansion, said Implementation Schedule shall include milestones
for completion of the MSC Pre-migration Checklist and the cutover, which are
activities primarily controlled by Customer. Customer understands and agrees
that any Customer
Confidential: Use or disclosure of this document is subject to the restrictions
in the Confidentiality provision.
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
41
Motorola/Nextel International Exhibit "A" "A"-3
August 9, 2000 Installation Services Agreement
caused delay in completion of the MSC Pre-migration Checklist
or the cutover shall not defer any Customer obligations to meet any subsequent
milestones listed in the applicable Implementation Schedule.
The Implementation Schedule may be mutually revised from time to time, as
required. The revised Implementation Schedule shall be dated and shall
incorporate all agreed to changes or modifications, including project additions,
deletions, extensions, and compressions since the previously agreed to
Implementation Schedule. In the event the parties fail to agree on the terms of
the requested changes or modifications then the terms and scope of the existing
Implementation Schedule in force at the time of the request shall govern.
3.4 Acceptance Test Plan (ATP)
The applicable test sections from the GATP that are required for Conditional
Acceptance of a System or System Expansion will be defined in Section IV of the
Project Agreement. The four (4) GATP sections associated with Conditional
Acceptance are listed below; one or more of these sections may apply to a
specific Project:
- Customer Unique Information Testing
- Site Operational Readiness
- Interconnect Voice Circuit Testing
- Administrative Function Test
Refer to Exhibit "C" for a brief discussion of each of these sections. Such
ATP-Conditional Acceptance testing shall apply to all Equipment and Software
supplied pursuant to the Project Agreement.
3.5 Use of Subcontractors
Motorola may either subcontract or use Motorola resources for the Project's
labor effort. Motorola's pricing assumes the use of [*] in accordance with
Motorola's standard pricing practices. Said re-pricing shall be agreed to prior
to work commencing. Upon Customer's acceptance of the re-pricing, Customer shall
issue a Purchase Order, or amend the applicable Purchase Order accordingly.
4.0 APPENDICES
The following appendices to Exhibit "A" are attached and incorporated by
reference into the Supply Agreement:
Appendix Number Appendix Name
Confidential: Use or disclosure of this document is subject to the restrictions
in the Confidentiality provision.
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
42
Motorola/Nextel International Exhibit "A" "A"-4
August 9, 2000 Installation Services Agreement
I Project Agreement Format
II Project Agreement Example
---------------------------
(R)Reg. U.S. ▇▇▇. & Tm. Off.
Confidential: Use or disclosure of this document is subject to the restrictions
in the Confidentiality provision.
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
43
Motorola/Nextel International Exhibit "A" "A"-5
August 9, 2000 Installation Services Agreement
APPENDIX I
PROJECT AGREEMENT FORM
I. PROJECT DESCRIPTION - XXXXXX
Project Title (see Motorola Generic SOWs) Project Location
[* ]
II. The following Purchase Orders pertain to this Project:
Purchase Order # Issue Date Rev. # Revision Date Value Notes/Line Items
---------------- ---------- ------ ------------- -------- ----------------
$ [* ]
[* ]
------------
TOTAL: $ [*]
III. THE IMPLEMENTATION SCHEDULE FOR THIS PROJECT IS AS FOLLOWS:
ID Task Name Start Finish Task Owner
-- --------- ----- ------ ----------
1 [* ]
2 [* ]
3 [* ]
4 [* ]
5 [* ]
6 [* ]
7 [* ]
8 [* ]
9 [* ]
10 [* ]
11 [* ]
12 [* ]
13 [* ]
14 [* ]
IV. THE ACCEPTANCE TEST PLAN FOR THIS PROJECT WILL BE DEVELOPED FROM THE FOLLOWING GATP TEST SECTIONS:
- (Enter test sections )
-
-
V. PREVIOUSLY SUPPLIED EQUIPMENT
Listed below is Customer supplied equipment previously purchased and now
provided in support of this Project. The warranty of this equipment will not
change as a result of its incorporation into this Project. Customer is
responsible for shipment of the equipment to the Project location and to insure
that the equipment is functionally acceptable as a component of this Project.
Page 1 of 2
Confidential: Use or disclosure of this document is subject to the restrictions
in the Confidentiality provision.
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
44
Motorola/Nextel International Exhibit "A" "A"-6
August 9, 2000 Installation Services Agreement
(List equipment descriptions and serial numbers, or state "Not applicable")
1.
2.
.
.
Motorola and Customer hereby agree that the Equipment, Software, and Services
ordered via the Purchase Orders listed in this Project Agreement constitute a
specific System or System Expansion "Project". This Project shall be delivered,
installed, and acceptance tested in accordance with the Implementation Schedule
in Section III. Acceptance testing shall be in accordance with the Motorola
Generic Acceptance Test Plan sections listed in Section IV. Installation shall
also be done in accordance with the Motorola Generic Statement(s) of Work listed
in Section I and defined in the Price Book. This Project Agreement is subject to
the terms and conditions of the Customer/ Motorola iDEN Infrastructure 3 Year
Supply Agreement, effective as of June 1, 2000.
[Customer]. MOTOROLA INC.
(AUTHORIZED SIGNATURE)
By: By:
------------------------------------ ------------------------------------
Name: Name:
------------------------------------ ------------------------------------
Title: Title:
------------------------------------ ------------------------------------
Date: Date:
------------------------------------ ------------------------------------
Page 2 of 2
Confidential: Use or disclosure of this document is subject to the restrictions
in the Confidentiality provision.
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
45
Motorola/Nextel International Exhibit "A" "A"-7
August 9, 2000 Installation Services Agreement
APPENDIX II
PROJECT AGREEMENT EXAMPLE
I. PROJECT DESCRIPTION - TOR001
Project Title (see Motorola Generic TDAP SOW) Project Location
[* ]
II. THE FOLLOWING PURCHASE ORDERS PERTAIN TO THIS PROJECT:
Purchase Order # Issue Date Rev. # Rev. Date Value Notes/Line Items
---------------- ---------- ------ --------- -------- ----------------
[* ]
Total $ [*]
III. THE IMPLEMENTATION SCHEDULE FOR THIS PROJECT IS AS FOLLOWS:
ID Task Name Start Finish Task Owner
-- --------- ----- ------ ----------
1 [* ]
2 [* ]
3 [* ]
4 [* ]
5 [* ]
6 [* ]
7 [* ]
8 [* ]
9 [* ]
10 [* ]
11 [* ]
12 [* ]
13 [* ]
14 [* ]
IV. THE ACCEPTANCE TEST PLAN FOR THIS PROJECT WILL BE DEVELOPED FROM THE FOLLOWING GATP TEST SECTIONS:
- Customer Unique Information Test
- Administrative Function Test
- Interconnect Voice Circuit Test
V. PREVIOUSLY SUPPLIED EQUIPMENT
Listed below is Customer supplied equipment previously purchased and now
provided in support of this Project. The warranty of this equipment will not
change as a result of its incorporation into this Project. Customer is
responsible for shipment of the equipment to the Project location and to insure
that the equipment is functionally acceptable as a component of this Project.
Page 1 of 2
Confidential: Use or disclosure of this document is subject to the restrictions
in the Confidentiality provision.
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
46
Motorola/Nextel International Exhibit "A" "A"-8
August 9, 2000 Installation Services Agreement
(List equipment descriptions and serial numbers, or state "Not applicable")
1.
2.
Motorola and Customer hereby agree that the Equipment, Software, and Services
ordered via the Purchase Orders listed in this Project Agreement constitute a
specific System or System Expansion "Project". This Project shall be delivered,
installed, and acceptance tested in accordance with the Implementation Schedule
in Section III. Acceptance testing shall be in accordance with the Motorola
Generic Acceptance Test Plan Sections listed in Section IV. Installation shall
also be done in accordance with the Motorola Generic Statement(s) of Work listed
in Section I and defined in the Price Book. This Project Agreement is subject to
the terms and conditions of the Customer/ Motorola iDEN Infrastructure 3 Year
Supply Agreement, effective as of June 1, 2000.
[Customer]. MOTOROLA INC.
(AUTHORIZED SIGNATURE)
By: By:
------------------------------------ ------------------------------------
Name: Name:
------------------------------------ ------------------------------------
Title: Title:
------------------------------------ ------------------------------------
Date: Date:
------------------------------------ ------------------------------------
Page 2 of 2
Confidential: Use or disclosure of this document is subject to the restrictions
in the Confidentiality provision.
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
47
Motorola/Nextel International Price Book "B"-1
August 9, 2000 Installation Services Agreement
EXHIBIT "B"
TO iDEN(R) INFRASTRUCTURE INSTALLATION SERVICES AGREEMENT
TECHNICAL OVERVIEW: NOTES ON THE IDEN SYSTEM
68P81095E55-D, VERSION D, DATED MAY 11, 1999
Confidential: Use or disclosure of this document is subject to the restrictions
in the Confidentiality Provision.
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission consisting of 122 consecutive pages pursuant to an
application for confidential treatment pursuant to Rule 24b-2 under the
Securities Act of 1934, as amended.
48
EXHIBIT "C"
TO iDEN(R) INFRASTRUCTURE INSTALLATION SERVICES AGREEMENT
ACCEPTANCE TEST PLAN
For purposes of uniformity and brevity, references to Agreement or to an Exhibit
shall refer to , the above - referenced Agreement to which this document is
Exhibit "C" and to the other Exhibits to that Agreement. All definitions set
forth in the Agreement shall apply hereto, unless otherwise specified herein.
1.0 PURPOSE
The purpose of this Exhibit "C" Acceptance Test Plan is to demonstrate to
Customer that Motorola has delivered the Hardware, Software, and features as
described in and pursuant to the Agreement and its Exhibits.
2.0 SYSTEM AND SYSTEM EXPANSION ACCEPTANCE
Acceptance of all Systems and System Expansions shall be governed by the
requirements set forth below:
2.1 Motorola shall conduct acceptance test procedures in accordance with
Section 4.0, ATP -- Conditional Acceptance, and Section 5.0, ATP -- Final
Acceptance, below. The test procedures shall be contained in the Acceptance Test
Plan (ATP) for each System or System Expansion.
2.2 The ATP shall be based on the Generic Acceptance Test Plan (GATP)
maintained by Motorola and may also include other additional tests mutually
agreed to. The GATP shall be modified as needed to incorporate acceptance test
procedures for newly developed Equipment and Software as part of the Software
general release process and shall reflect the then current acceptance test
procedures available. Any modifications to the GATP shall be made by Motorola to
reflect Equipment or Software or to correct errors or omissions in the GATP. A
copy of the current GATP is attached for reference.
2.3 The scope of the ATP required to achieve ATP -- Conditional Acceptance
and ATP -- Final Acceptance for each specific System or System Expansion shall
be identified and mutually agreed to. The specific System or System Expansion
ATP shall contain only those GATP test procedures required to test the
Equipment, Software, and the associated features ordered and shall be developed
by Motorola based upon portions of the GATP applicable to the mutually agreed
upon scope for ATP -- Conditional Acceptance and ATP -- Final Acceptance. The
Confidential: Use or disclosure of this document is subject to the restrictions
in the Confidentiality provision.
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
49
Motorola/Nextel International EXHIBIT "C" "C"-2
August 9, 2000 Installation Services Agreement
schedule for performance of such specific ATP shall be included in the
Implementation Schedule for the specific System or System Expansion.
2.4 Motorola shall supply to Customer, no later than sixty (60) days prior
to the scheduled commencement of ATP -- Conditional Acceptance or ATP -- Final
Acceptance, as applicable, the particular required test procedures to achieve
the specific System or System Expansion ATP -- Conditional Acceptance and ATP --
Final Acceptance. Customer shall have thirty (30) days following receipt of said
test procedures to review and comment on the content of the test procedures.
2.5 Only those features and items of Equipment and Software supplied by
Motorola in accordance with the definitions of System and System Expansion
contained herein, and installed by Motorola, or installed by Customer in
accordance with Motorola-authored or Motorola-approved published installation
and engineering standards, shall be included in and tested under the ATP for a
System or System Expansion.
2.6 Individual Site tests and the switch test shall be performed in
accordance with the ATP as soon as the individual Sites and switch are
completed. The System test in accordance with the ATP shall be performed as soon
as the switch and Site tests are completed. These tests shall take place even
when all the Sites are not operational if all such unavailable Sites are due to
Customer failure to perform its applicable obligations in accordance with the
Implementation Schedule ("Customer Unavailable Sites"). If there remain
unavailable Sites due to Motorola's failure to perform its applicable
obligations in accordance with the Implementation Schedule, such tests shall be
delayed until the affected Sites become operational.
2.7 The areas served by Customer Unavailable Sites shall not be included in
the System Test. When the Customer Unavailable Sites are completed, the Site
Test shall be completed for any Customer Unavailable Sites. The existence of
Customer Unavailable Sites shall not delay ATP -- Conditional or ATP -- Final
Acceptance as long as the other items necessary for ATP -- Conditional or ATP --
Final Acceptance are complete.
2.8 Customer may order additional testing above and beyond the specific
acceptance test procedures defined in Sections 4.0 and 5.0, below, for a System
or System Expansion. In accordance with Section 7.0 of the Agreement, the
additional test procedures to be performed and the price thereof shall be
identified and mutually agreed to prior to acceptance of an order. The
completion of these additional test procedures shall be outside the scope of the
System or System Expansion ATP and shall not be apart of, nor a precedent to,
ATP -- Conditional Acceptance or ATP -- Final Acceptance of a System or System
Expansion.
2.9 The acceptance test procedures as defined in Sections 4.0 and 5.0 shall
not include, and shall be separate and distinct from, any Software testing
developed and executed in conjunction
Confidential: Use or disclosure of this document is subject to the restrictions
in the Confidentiality provision.
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
50
Motorola/Nextel International EXHIBIT "C" "C"-3
August 9, 2000 Installation Services Agreement
with, and required to achieve, general release of Software under the Software
Maintenance Program (SMP) of the Agreement.
2.10 The conduct of Conditional Acceptance testing procedures shall preclude
Customer from initiating an expansion to a System or System Expansion prior to
the relevant Scheduled Completion Date, unless the parties agree in writing that
such expansion does not result in material delay and/or expense to Motorola in
conducting and/or completing Conditional Acceptance testing procedures in
accordance with the relevant Scheduled Completion Date.
3.0 RESPONSIBILITIES
3.1 Initial System acceptance testing involves both the testing of the FNE
itself and the exercising of interfaces to Systems external to the FNE. For this
reason, testing of all external equipment must be completed prior to
recommencement of FNE acceptance testing to assure its proper functioning. The
Customer is responsible to ensure the proper functioning of equipment not
supplied by Motorola. Initial System acceptance testing shall be a joint
responsibility between Motorola and Customer.
3.2 During Motorola performance of the ATP, Customer shall: (i) place the
System or subsystem in the appropriate condition (i.e. System lockdown)
necessary to permit such testing to be conducted at all reasonable times in
accordance with a schedule to be mutually agreed to by the parties; (ii) make
the Equipment, data, and facilities required for completion of Conditional
Acceptance testing available to Motorola in accordance with such approved
schedule; and (iii) provide free access, ingress and egress to Customer
facilities as reasonably required to perform Conditional Acceptance in
accordance with such approved schedule.
3.3 A qualified member of the Motorola staff, as designated by Motorola,
will serve as acceptance test coordinator. The test coordinator will be
responsible for observing and documenting test results. Customer will provide an
acceptance test monitor who will assist in conducting the test procedure and
observe and verify the tests.
3.4 Motorola shall provide Customer a schedule of the ATP procedures and
notify Customer of the time and place at which such tests are to be conducted.
Customer shall have the right to observe the conduct of the tests and the
results thereof. Customer shall use reasonable efforts to accommodate Motorola's
ATP schedule.
3.5 Customer is responsible for coordinating, with Motorola's assistance,
the activities of any common carrier or other public or private agency, firm,
etc., whose participation may be required in successfully executing the test
plan.
Confidential: Use or disclosure of this document is subject to the restrictions
in the Confidentiality provision.
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
51
Motorola/Nextel International EXHIBIT "C" "C"-4
August 9, 2000 Installation Services Agreement
4.0 TEST PROCEDURES FOR ATP -- CONDITIONAL ACCEPTANCE
4.1 The ATP Conditional Acceptance is comprised of four (4) test sections,
as appropriate, to verify performance and functionality of a System or
subsystem. The defined test methodologies, target performance goals, timing,
reference documents and applicability to a new System or System Expansion are
described below. The test sections include:
- Customer Unique Information Testing
- Site Operational Readiness
- Interconnect Voice Circuit Testing
- Administrative Function Test
4.2 Customer Unique Information Testing
The Customer Unique Information Testing shall evaluate the implementation of
System unique database elements developed by Motorola utilizing specific
information provided by Customer. The test shall ensure that new System elements
are properly provisioned prior to loading of end users on a new network. The
System unique database may consist of the following database elements, but
Motorola shall specify the database requirements based upon the final System
configuration.
a) MSC Dialplan. Verify the MSC translations by generating incoming
and outgoing calls on each NPA-NXX for each call type to include
supplementary services.
b) Dispatch and Interconnect Voice Server Testing. The voice server
tests shall include the confirmation of functional call
processing on all Site time slots provisioned for I6 dispatch
and of functional call processing on all Site time slots
provisioned for I6 and I3 interconnect call applications.
4.3 Site Operational Readiness
Site Operational Readiness will consist of the evaluation of Site Hardware
installations against established Motorola standards. It will follow
installation of each Site when power is available to each Site and all radio
equipment is installed and hooked up. It will ensure that all Motorola-supplied
Equipment is present, properly installed, and connected with other Site
equipment.
4.4 Interconnect Voice Circuit Testing
Interconnect Voice Circuit Testing shall confirm the connectivity and operations
of all voice circuits between the MSC and the BSC Equipment.
4.5 Administrative Function test
Confidential: Use or disclosure of this document is subject to the restrictions
in the Confidentiality provision.
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
52
Motorola/Nextel International EXHIBIT "C" "C"-5
August 9, 2000 Installation Services Agreement
Administrative Function Tests will confirm the operation of primary and common
administrative functions available on the Operations Maintenance Center (OMC).
These functions include, but are not limited to, Site build and load, parameter
changes, System statistics gathering, alarm functionality, and making back-ups
on the System. 4.6 Pass/Fail Criteria
Pass/Fail criteria of individual ATP-Conditional Acceptance tests will be
included within the detailed test procedures delivered by Motorola to Customer
as defined in Section 7.0 below. Pass/fail criteria identified in the ATP --
Conditional Acceptance test procedures will be based on the applicable component
specifications.
4.7 Special Consideration for System Expansions
The ATP for a System Expansion may contain a subset of the acceptance tests for
a System and will be dependent upon the Equipment and Software purchased in the
System Expansion.
4.8 Conditional Acceptance
In the event that commercial service has not yet commenced, ATP -- Conditional
Acceptance for a System or System Expansion shall occur when Motorola has
completed and passed, to mutual agreement, the applicable ATP tests. ATP --
Conditional Acceptance shall not be delayed because of minor (level 4 or below)
test failures. Such defects may be placed on the punchlist for later resolution.
In the event of major test failures caused by level 6 or above defects,
completion of the ATP will be delayed until each such defect is corrected and
the item retested. Defects caused by systemic Software issues that are not
service affecting are covered under the Software Maintenance Program (SMP).
4.9 Customer Performance Test Period
a) Upon completion of the ATP, a Punchlist shall be mutually
developed within [*]. In addition, a [*] Performance Test Period
shall commence immediately following successful completion of
the ATP -- Conditional Acceptance test procedures, to allow
Customer to operate the System to determine if additional
failures are found as a result of Motorola products failure to
operate as specified.
b) Prior to completion of the [*] test, Customer may load the
System or System Expansion for a period not to exceed [*]
(unless otherwise mutually agreed to) with [*], or as otherwise
mutually agreed to, in accordance with the terms of the
Commercial Service definition in Section 1.0 of the Agreement,
provided this activity does not interfere with commissioning or
System testing. Such loading for Customer testing purposes shall
not trigger Commercial Service.
Confidential: Use or disclosure of this document is subject to the restrictions
in the Confidentiality provision.
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
53
Motorola/Nextel International EXHIBIT "C" "C"-6
August 9, 2000 Installation Services Agreement
c) Testing conducted during the [*] Performance Test Period shall
be witnessed by Motorola, and the results, including failures,
must be reproducible and documented by Customer to be included
in the Punchlist. This testing shall be limited to testing of
the System infrastructure functionality tested in the ATP. The
testing shall specifically exclude testing of System RF coverage
and voice quality.
d) To be included in the ATP Punchlist, test failures found during
the Performance Test Period must be Level 6 or above and, upon
mutual agreement, placed on the Punchlist within the [*]
Performance Test Period. Any defects found after the Punchlist
is finalized shall be resolved in accordance with the warranties
provided under the Agreement.
4.10 Customer Certification of Conditional Acceptance
Upon agreement on the contents of the Punchlist, Customer shall endorse the
Motorola provided letter of acceptance signifying occurrence of ATP --
Conditional Acceptance.
5.0 ATP -- FINAL ACCEPTANCE AND CUSTOMER CERTIFICATION
When substantially all Punchlist Items (including all Level 6 and above defects)
are resolved , ATP -- Final Acceptance shall be granted. Such approval shall not
be unreasonably withheld. ATP -- Final Acceptance shall be evidenced by a letter
of acceptance provided by Motorola and signed by Customer.
6.0 ACCEPTANCE GUIDELINES
6.1 In the event that, due to a problem outside Motorola's control, a
particular test or group of tests cannot be completed within the time scheduled,
one of these procedures will be implemented:
a) The affected test or portion of a test may be interrupted and
rescheduled for completion or retesting at some future time.
b) The affected test or portion of a test may be continued to
completion and the Acceptance Test schedule amended as required
to accommodate the remaining tests and the exceptions that
failed the original testing.
Confidential: Use or disclosure of this document is subject to the restrictions
in the Confidentiality provision.
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
54
Motorola/Nextel International EXHIBIT "C" "C"-7
August 9, 2000 Installation Services Agreement
c) If the problem results from Customer action or inaction or due to
non-performance of a Customer responsibility, the affected test
will be rescheduled and any additional costs will be borne by
Customer.
Motorola will confer with Customer and decide, on a case by case basis, which of
these procedures is appropriate and notify Customer.
6.2 In the event of Customer-caused delays in the implementation of a System
or System Expansion, ATP -- Conditional Acceptance shall be deemed granted 60
days after the ATP -- Conditional Acceptance date set forth in the Project
Implementation Schedule and all payments associated with ATP -- Conditional
Acceptance shall be due and payable as of this date. ATP -- Final Acceptance for
such System or System Expansion shall be deemed granted 90 days after the ATP --
Conditional Acceptance date set forth in the Project Implementation Schedule and
all payments associated with ATP -- Final Acceptance shall be due and payable as
of this date.
7.0 REPORTING RESULTS AND RETESTING
7.1 Test Sequencing
At the completion of each test, a pass/fail determination will be made based on
the performance of FNE Equipment supplied by Motorola and subject to Acceptance
Testing under the Agreement. In the event of test failure, other tests not
effected by the failed test will not be delayed and can continue while remedies
are prepared for the failed test. Failed test procedures will be scheduled for
retesting as appropriate
7.2 Regression Testing
After a test failure has been remedied it will be scheduled for retest. Previous
tests that have passed and that logically could be affected by the remedy for
the failed test will be repeated. Previously passed tests that are logically
unaffected by the remedy for the failed test do not require retesting. Motorola
will determine whether a test is or is not logically affected by any remedy.
7.3 Test Failure Severity Levels
The following table defines the Test Severity Levels to be used in recording
Test Results:
TABLE 1
------------ --------------------------------------------------------------------------------------------------------
LEVEL DESCRIPTION
------------ --------------------------------------------------------------------------------------------------------
Confidential: Use or disclosure of this document is subject to the restrictions
in the Confidentiality provision.
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
55
Motorola/Nextel International EXHIBIT "C" "C"-8
August 9, 2000 Installation Services Agreement
------------ --------------------------------------------------------------------------------------------------------
10 Service Affecting. Call processing or traffic handling are severely affected in some manner by the
failure.
------------ --------------------------------------------------------------------------------------------------------
6 Performance Affecting. Some adverse impact on System performance affecting the quality of service on
call processing or traffic handling.
------------ --------------------------------------------------------------------------------------------------------
4 Minor Problem. The failure does not impact call processing, traffic handling, or System performance,
but pass/fail criteria of the test procedure have not been satisfied.
------------ --------------------------------------------------------------------------------------------------------
3 Documentation. Proper System operation has been observed, but System documentation referenced in the
test procedure is ambiguous, misleading, or incorrect.
------------ --------------------------------------------------------------------------------------------------------
1 Procedural. Proper System operation has been observed, but the test procedure is ambiguous,
misleading, or incorrect.
------------ --------------------------------------------------------------------------------------------------------
0 External. Test failure was caused by equipment not supplied by Motorola or Equipment supplied by
Motorola but not subject to Acceptance Testing under the current Agreement or R/F interference
generated by sources outside the System not under control of Motorola.
------------ --------------------------------------------------------------------------------------------------------
0 Change Request. Customer has requested a change to test procedures or System characteristics which is
beyond the scope of the current Agreement.
------------ --------------------------------------------------------------------------------------------------------
7.4 Record of Test Results
During the entire Acceptance Test period, the Motorola Coordinator will maintain
a record of test results on the standard data sheets, which will be made
available for review by Customer's Acceptance Test Monitor. In the event of test
failure, the severity of the failure will be determined and recorded. A
description of the extent of the failure will also be recorded, along with
requirements for retesting to demonstrate that the failure has been cleared.
7.5 Acceptance Report
7.5.1 Upon completion of each ATP test, Motorola shall submit to Customer for
approval all test reports setting forth full and accurate test results obtained.
Customer's approval of such test reports shall not be unreasonably withheld or
delayed. The test reports shall also summarize the results of testing conducted.
Each test report shall contain the necessary analysis and collected data to
support conclusions, and copies of the original test data sheets shall be
provided to the Customer.
7.5.2 The completed data sheet will contain all of the test results. Therefore,
it will form the basis for Acceptance of the System. Information on any
Acceptance Test procedures still pending will be included.
7.6 Acceptance
Neither endorsement of the Acceptance Test results nor the issuance of a Letter
of Acceptance will be delayed because of minor (level 4 or below) defects of
Equipment or Software. Motorola
Confidential: Use or disclosure of this document is subject to the restrictions
in the Confidentiality provision.
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
56
Motorola/Nextel International Exhibit "C" "C"-9
August 9, 2000 Installation Services Agreement
will use commercially reasonable efforts to expeditiously correct such
reproducible defects, if any, within 90 days after ATP -- Conditional
Acceptance.
---------------------------
(R)Reg. U.S. ▇▇▇. & Tm. Off.
Confidential: Use or disclosure of this document is subject to the restrictions
in the Confidentiality provision.
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
57
Motorola/Nextel International Exhibit "C" "C"-10
August 9, 2000 Installation Services Agreement
Confidential: Use or disclosure of this document is subject to the restrictions
in the Confidentiality provision.
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
58
Motorola/Nextel International Exhibit "D" "D"-1
August 9, 2000 Installation Services Agreement
EXHIBIT "D"
TO iDEN(R) INFRASTRUCTURE INSTALLATION SERVICES AGREEMENT
IMPLEMENTATION ENGINEERING, SITE PREPARATION, INSTALLATION AND INTEGRATION
For purposes of uniformity and brevity, references to Agreement or to an Exhibit
shall refer to the above-referenced Agreement to which this document is Exhibit
"D" and to the other Exhibits to that Agreement. All definitions set forth in
the Agreement shall apply hereto.
1.0 SCOPE OF WORK
1.1 Customer shall provide all Site acquisition and Site
development efforts. Customer shall be responsible for
architectural engineering drawings. Motorola shall be
responsible for installation and integration of Fixed Network
Equipment (FNE).
1.2 Customer shall pay the prices for Expansion Engineering,
Installation, and Integration as set forth in the iDEN
Infrastructure Price Book at the then current rate.
1.3 All drawings, specifications and other documentation furnished
by Motorola will be in English. Drawings created by Motorola
specifically for this Agreement will utilize metric
measurements. Standard drawings, specification sheets, and
other documentation will be furnished using the measurements
as published by the provider. Motorola will attempt to obtain
metric measurements if available from the provider.
1.4 All drawings, specifications and other documentation furnished
by Customer, including notations made by Customer on Motorola
furnished drawings, shall be in English.
2.0 COMMENCEMENT OF WORK
2.1 System Implementation Engineering shall commence upon purchase
order execution and formulation of the preliminary System
definition as specified by Customer and Motorola.
2.2 Site acquisition shall commence in accordance with the dates
contained in the Implementation Schedule of the specific
Project Agreement.
2.3 Installation and integration by Motorola shall commence in
accordance with the Project Agreement Implementation Schedule.
Confidential: Use or disclosure of this document is subject to the restrictions
in the Confidentiality provision.
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
59
Motorola/Nextel International Exhibit "D" "D"-2
August 9, 2000 Installation Services Agreement
3.0 SITE ACQUISITION
3.1 All Site Acquisitions must be complete within the time frame
defined in the Project Agreement Implementation Schedule to
assure inclusion in the acceptance testing and Conditional
Acceptance of the System or System Expansion. Site acquisition
by Customer is that process from Site selection through lease
or purchase negotiation. Building permits and other
entitlements, inclusive of zoning deviations, are a part of
Site acquisition. Once the Site is ready for construction
and/or alteration, this responsibility is fulfilled.
3.2 ***NOTE***
Avoid zones which are prone to or consist of: flammable
material storage buildings, frequent grass and brush fires,
hazardous materials and/or processes, flood planes, landfills,
radon gas, excessive vibration, or areas which may be prone to
railroad or vehicular mishaps.
4.0 iDEN SYSTEM IMPLEMENTATION ENGINEERING
After Sites have been released to Motorola by Customer, iDEN
Implementation Engineering, including Site appraisal and installation
analysis, shall be performed as follows:
4.1 Customer will select all Sites. Following Site selection,
Motorola will conduct a Site appraisal and installation
analysis which shall be used to determine the required tasks,
material and effort necessary for Installation and
integration.
4.2 Upon completion of the Site appraisal and installation
analysis Motorola will provide Customer with a list of all
tasks which need to be accomplished prior to the System's
equipment installation and integration.
4.3 Additionally, Motorola shall prepare Site-specific FNE and
Motorola-supplied ancillary equipment lists. Pre-construction
documentation developed therefrom shall include:
4.3.1 Site layouts.
4.3.2 Wiring diagrams.
4.3.3 Rack layout diagrams for equipment to be installed
during the initial construction cycle.
4.3.4 Wiring lists.
4.3.5 Block and level diagrams.
4.3.6 Overall iDEN System diagram and an iDEN System
block and level diagram.
Confidential: Use or disclosure of this document is subject to the restrictions
in the Confidentiality provision.
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
60
Motorola/Nextel International Exhibit "D" "D"-3
August 9, 2000 Installation Services Agreement
4.4 Customer is responsible for the public switched telephone
network ("PSTN") configuration, including the Dial Plan and
design.
5.0 SITE PREPARATION
5.1 Standards
Customer shall provide all Site Development Services. Customer
shall furnish all labor and material necessary to prepare and
complete each Site in compliance with all applicable codes,
inclusive of the Architectural Engineering Drawings and
Motorola applicable standards, and in accordance with the
project's Implementation Schedule. All Site acquisition must
be completed in accordance with the Implementation Schedule to
assure inclusion in acceptance testing and Conditional
Acceptance of the System or System Expansion.
5.2 Scope of Work Existing Site
Below are the standard requirements which should be met in
order for the Sites to be considered acceptable to Motorola
under normal business conditions. Deviations to these criteria
must be reviewed and approved by Motorola on a case-by-case
basis.
5.2.1 Existing Building Site Requirements
5.2.1.1 Structure must safely support the floor load
of current and future system equipment
requirements which is subject to change.
5.2.1.2 Walls, ceilings, and enclosures must
accommodate approved equipment layouts.
5.2.1.3 Area should be a minimum of 200 square feet
usable space with ceilings that will
accommodate approved equipment layouts
(Minimum Ceiling Height 8'6" - Maximum
12'0"). The building must provide adequate
access for construction, installation, and
material movement. Should space be
unavailable which meets the provisions of
this Section, Motorola System Engineering
must be notified prior to equipment
manufacture.
5.2.1.4 A 5 ohm resistance measured between the
building and earth ground in accordance with
the Motorola grounding specification
document R-56 must be available within 20
feet of the equipment to meet Motorola
engineering specifications.
Confidential: Use or disclosure of this document is subject to the restrictions
in the Confidentiality provision.
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
61
Motorola/Nextel International Exhibit "D" "D"-4
August 9, 2000 Installation Services Agreement
5.2.1.5 Power shall be within 20 feet of the
equipment room and provide either 120/240V
AC, single phase, or 208V, three phase at
200 amps to allow for future expansion of
equipment.
5.2.1.6 Motorola suggests that antennas be mounted
within 150 feet of the equipment thus
allowing the use of 7/8 inch coaxial cable.
In those cases where longer feed lines are
necessary, coaxial cable size must be
adjusted accordingly by the change process.
5.2.1.7 Must meet or exceed all local building
codes.
5.2.1.8 Compliance with site specific safety codes
as contained in the local regulations and
codes.
5.2.1.9 Doors, lock sets, and/or security devices
(Customer provided) must be in place and
functioning.
5.2.1.10 Provisions must be made to allow
installation of all cables in a non-plenum
space.
5.2.2 Existing Building Architectural Engineering
Requirements. (This section is a list of the items
that are typically required from the Architectural
Engineering provider. This is Customer's
responsibility.)
5.2.2.1 Site Plan
5.2.2.1.1 Entire property and leased area
fully dimensioned.
5.2.2.1.2 Existing structural drawings.
5.2.2.1.3 Existing street, driveways,
utilities, easements drawings.
5.2.2.1.4 Dimensions from proposed
structures to property lines,
other structures.
5.2.2.1.5 Elevations with dimensions of
existing towers and antennas.
5.2.2.1.6 Ownership identification
documents.
5.2.2.1.7 Legal descriptions.
5.2.2.1.8 Flood plane documents where
required.
5.2.2.1.9 Special city code documentation
where required.
Confidential: Use or disclosure of this document is subject to the restrictions
in the Confidentiality provision.
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
62
Motorola/Nextel International Exhibit "D" "D"-5
August 9, 2000 Installation Services Agreement
5.2.2.1.10 Floor loading-structure
specifications.
5.2.2.2 Mechanical Plans
5.2.2.2.1 For existing structures.
5.2.2.2.2 Floor plans, mechanical equipment,
duct work, piping.
5.2.2.2.3 Specifications.
5.2.2.2.4 Local requirements and
restrictions.
5.2.2.3 Electrical Plans
5.2.2.3.1 Floor plans, single line and panel
schedule.
5.2.2.3.2 Specifications.
5.2.2.3.3 Local requirements.
5.2.2.3.4 Ground systems including details
and specifications.
5.2.2.4 Tower Drawings (by the party performing
tower installation)
5.2.2.4.1 Details (foundations included).
5.2.2.4.2 Structural analysis.
5.2.2.5 Shelter Drawings (by the provider of the
shelter).
5.2.2.5.1 Details with elevations, placement
and dimensions by architectural
engineering provider.
5.2.2.5.2 Approved as necessary by
appropriate governmental
authorities and stamped by shelter
provider.
5.2.3 Site preparation tasks to be performed by Customer
shall include:
5.2.3.1 Install air conditioning system and/or
forced air ventilation system.
5.2.3.2 Install wall feed through port for
transmission lines.
5.2.3.3 Provide three-phase AC distribution system,
including lighting and convenience outlets.
5.2.3.4 Ground system tied to building ground.
Confidential: Use or disclosure of this document is subject to the restrictions
in the Confidentiality provision.
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
63
Motorola/Nextel International Exhibit "D" "D"-6
August 9, 2000 Installation Services Agreement
5.2.3.5 Construction and installation of electrical
shield (if required).
5.2.3.6 Installation of cable ladder.
5.2.3.7 Installation of seismic bracing.
5.2.3.8 Mount and test antennas and transmission
lines and any tower mounted amplifiers that
may be required.
5.2.3.9 Installation and testing of telephone
services.
5.2.3.10 Site clean-up and trash removal.
5.2.3.11 Project Management and field supervision
exclusive of FNE equipment.
5.3 Scope of Work Vacant Property Site (Scope may vary based on
Site specific requirements)
5.3.1 Vacant Property Shelter Site Requirements:
5.3.1.1 Site is assumed to be a vacant plot of
cleared land that has sufficient area and
with ingress and egress which will allow the
installation of the required building and
antenna structure.
5.3.1.2 The site is assumed to have normal soil.
Normal soil is defined as a cohesive soil
with an allowable net vertical bearing
capacity of 4,000 pounds per square foot,
and an allowable net horizontal pressure of
400 pounds per square foot per linear foot
of depth to a maximum of 4,000 pounds per
square foot. Rock, non-cohesive soils, or
saturated or submerged soils are not to be
considered normal soil. In addition, the
soil shall be suitable for mechanical
back-hoe excavation and no forming
requirements for pouring sub-surface
concrete should be considered.
5.3.2 Vacant Property Architectural and Engineering Drawing
Requirements to be provided by Customer. (In all
cases the information furnished for each Site is
based on the specific Site selected and the local
conditions, ordinances, codes, etc.)
5.3.2.1 Site Plan
5.3.2.1.1 Topographic and drainage
information and calculations.
5.3.2.1.2 Existing structural drawings.
Confidential: Use or disclosure of this document is subject to the restrictions
in the Confidentiality provision.
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
64
Motorola/Nextel International Exhibit "D" "D"-7
August 9, 2000 Installation Services Agreement
5.3.2.1.3 Existing street, driveways,
utilities, easements.
5.3.2.1.4 Dimensions from proposed
structures to property lines,
other structures.
5.3.2.1.5 Setbacks.
5.3.2.1.6 Ownership documentation.
5.3.2.1.7 Legal descriptions.
5.3.2.1.8 Flood plane information.
5.3.2.1.9 Local seismic codes.
5.3.2.1.10 Fire Protection.
5.3.2.2 Foundation Plans
5.3.2.2.1 Details, plans and elevations for
tower and shelters.
5.3.2.2.2 Soils recommendations.
5.3.2.3 Tower Drawings
5.3.2.3.1 Details (foundation included by
tower provider).
5.3.2.3.2 Structural steel license (where
required).
5.3.2.3.3 Wooden tower approved as necessary
by appropriate governmental
authorities.
5.3.2.4 Shelter Drawings
5.3.2.4.1 Details (foundations included)
with elevations, placement and
dimensions.
5.3.2.4.2 Approved as necessary by
appropriate governmental
authorities and stamped by shelter
provider.
5.3.2.5 Landscaping Plans
5.3.2.5.1 If required, detail size, species,
number location, irrigation with
details, and material lists.
5.3.3 Vacant property site preparation tasks provided by
Customer shall include where appropriate:
5.3.3.1 Soil boring and analysis.
Confidential: Use or disclosure of this document is subject to the restrictions
in the Confidentiality provision.
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
65
Motorola/Nextel International Exhibit "D" "D"-8
August 9, 2000 Installation Services Agreement
5.3.3.2 Certified drawings for tower, building and
foundations.
5.3.3.3 Appropriate layouts and drawings.
5.3.3.4 Identification of existing or required
utilities.
5.3.3.5 Construction of building and tower
foundation based on soil analysis.
5.3.3.6 Assembly of building on Site (where
required).
5.3.3.7 Erection of tower, installation and test of
antennas, and transmission line.
5.3.3.8 Building electrical wiring connections.
5.3.3.9 Connection and testing of HVAC.
5.3.3.10 Installation and testing of telephone
services.
5.3.3.11 Building and tower grounding system per
Motorola Systems Engineering specifications.
5.3.3.12 Construction and installation of electrical
shielding (if required).
5.3.3.13 Construction of access road or driveway as
required.
5.3.3.14 Site fencing as desired by Customer.
5.3.3.15 Final site grading (where required).
5.3.3.16 Landscaping (where required).
5.3.3.17 Site clean-up and trash removal.
5.3.3.18 Program management and field supervision.
5.3.4 Existing building Site requirements in Section 5.2.1
also apply to buildings constructed on vacant Sites.
5.4 Scope of Work - Switch Site
5.4.1 Switch Site Requirements:
5.4.1.1 Existing building Site requirements in
Section 5.2.1 also apply to the Switch Site,
unless modified in this section.
Confidential: Use or disclosure of this document is subject to the restrictions
in the Confidentiality provision.
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
66
Motorola/Nextel International Exhibit "D" "D"-9
August 9, 2000 Installation Services Agreement
5.4.1.2 Site is assumed to be an existing building
of suitable size to house the Switch
equipment and power supplies, inclusive of
space for offices and storage.
5.4.1.3 Area should accommodate approved equipment
layouts, house support personnel and provide
storage for repair equipment. Cable tray
height of between 8'6" to 9'6" is required,
with adequate access for construction,
installation, and material movement.
5.4.1.4 Power shall be within reasonable distance of
the equipment room and provide AC, three
phase, at sufficient amperage to support the
MSO equipment configuration.
5.4.2 Switch Site Architectural Engineering Requirements:
5.4.2.1 Reference 5.2.2.
5.4.3 When appropriate Customer will provide:
5.4.3.1 Structural analysis and certification for
existing buildings.
5.4.3.2 Certified drawings of building layout
modifications and the appropriate building
subsystems.
5.4.3.3 Air conditioning system as required to
support the equipment configuration and
personnel.
5.4.3.4 Adequate electrical service to support
electrical distribution system, including
lighting and convenience outlets, DC power
plant, and inverters to support the MSO.
5.4.3.5 A stand-by generator, as required, and
transfer equipment.
5.4.3.6 Building ground system compliant with
Motorola grounding standards specified in
R-56.
5.4.3.7 Ground loop tied to building ground.
5.4.3.8 Adequate space for 48 V battery system sized
to provide eight (8) hours of system
operation without recharge.
5.4.3.9 Cable ladder system.
5.4.3.10 Fire suppression, external alarms, and
security systems.
5.4.3.11 Site clean-up and trash removal.
Confidential: Use or disclosure of this document is subject to the restrictions
in the Confidentiality provision.
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
67
Motorola/Nextel International Exhibit "D" "D"-10
August 9, 2000 Installation Services Agreement
5.4.3.12 Program management and field supervision.
6.0 INSTALLATION AND INTEGRATION
6.1 Standards
All Site Preparation must be completed in accordance with the
project's Implementation Schedule to assure inclusion in
acceptance testing and Conditional Acceptance of the System or
System Expansion. Customer shall furnish all labor and
materials necessary to prepare and complete each Site in
compliance with all applicable codes and in accordance with
the Implementation Schedule.
Customer will advise Motorola upon completion of MSO Site
preparation. Motorola will commence installation and
integration only after this notification of "READY for FNE" is
made. The equipment will be installed and integrated by
Motorola in accordance with the following standards:
6.1.1 All work shall be performed by skilled Motorola
personnel and qualified subcontractors approved by
Motorola.
6.1.2 Motorola parts or parts of equal quality will be
used.
6.1.3 The work will be performed in accordance with the
instructions and techniques as described in the
manuals supplied by the equipment vendor.
6.1.4 All grounding shall be in conformance with Motorola
systems engineering requirements.
6.2 Unless otherwise agreed by the parties, Motorola shall install
and integrate the System or System Expansion as specified in
the Agreement when the Site is listed "Ready for FNE." A Site
is "FNE Ready" at the point in time when the installation team
can deliver, install, integrate, and ATP all of the FNE and
associated ancillary equipment in a continuous, uninterrupted
manner. "Ready for FNE" is further defined as, but is not
limited to, the following conditions being met:
6.2.1 Lease agreement commenced.
6.2.2 All construction work has been completed. This
includes but is not limited to the completion of
interior finishes (including all paint and floor
covering), electrical work (including all lighting,
convenience outlets, grounding and bonding), cable
ladder (installed and grounded), and HVAC systems
fully operational.
6.2.3 Final inspection granted.
Confidential: Use or disclosure of this document is subject to the restrictions
in the Confidentiality provision.
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
68
Motorola/Nextel International Exhibit "D" "D"-11
August 9, 2000 Installation Services Agreement
6.2.4 Power activated.
6.2.5 Access and security issues resolved (24 hour access
and theft security provided).
6.2.6 Construction punchlist complete.
6.2.7 Telephone company circuits, and any associated
modems, installed and tested.
6.2.8 Antennas, transmission lines, poly phasers,
grounding, and bonding installed and tested on
prepared support structures, per specifications.
6.3 FNE Installation and Integration
6.3.1 Install and interconnect the battery/charger
equipment to Customer-provided commercial power
source.
6.3.2. Unpack and position cabinets and racks and fasten to
the floor, if required. Include earthquake bracing as
applicable.
6.3.3 Interconnect and lace or tie-wrap all cables and
wiring on the Motorola-supplied equipment.
6.3.4 Connect equipment to Customer-provided commercial
power cables.
6.3.5 Program all iDEN FNE Software with iDEN System data.
6.3.6 Load the System Software.
6.3.8 Perform any other tests or adjustments required by
Motorola to verify that the iDEN System or System
Expansion is operating according to the agreed
specifications.
6.3.9 Verify and test proper operation of alarm system.
6.3.10 Place all refuse in Customer provided trash
receptacles.
6.4 Upon completion of the above procedures, Motorola will inform
Customer that the System is ready for formal acceptance
testing as set forth in Exhibit "C."
7.0 CUSTOMER RESPONSIBILITIES
7.1 Customer is responsible to negotiate all leases and/or
purchases of all Sites.
7.2 Customer is responsible for obtaining any required operating
authority to install or operate the System, including, without
implied limitation, radio licenses, governmental
authorizations and approvals, local zoning approvals,
environmental impact studies and waivers, and building
permits.
Confidential: Use or disclosure of this document is subject to the restrictions
in the Confidentiality provision.
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
69
Motorola/Nextel International Exhibit "D" "D"-12
August 9, 2000 Installation Services Agreement
7.3 Information, documentation, facilities and services under
Customer's control or those documents not furnished by
Motorola shall be furnished by Customer in a timely manner to
facilitate the orderly progress of the work in accordance with
the project's Implementation Schedule. Included, without
implied limitation, shall be: access and right of entry to all
Sites; regulatory filing information; floor plans; and any
supporting documents which may affect Site engineering,
installation analysis, acquisition, permitting and
construction.
7.4 Customer will be responsible for warehousing, reloading,
transporting, off-loading and moving the equipment onto the
permanent Site. Customer will bear the responsibility for
safekeeping and warehousing of the equipment in environmental
conditions as set out in the specifications. Motorola agrees,
with the exception of certain drop ship type equipment
(antennas, lines, combiners, etc.), not to ship equipment
prior to the scheduled dates without Customer's prior
approval. Motorola agrees to make a reasonable effort to batch
the equipment.
7.5 To the fullest extent possible, Customer shall negotiate 24
hour per day Site availability during installation and the
maintenance period. Site access includes providing Motorola
with keys, pass codes, security clearances, escort, etc.,
necessary to gain entrance to and exit from the work area.
Should a specific Site not be made available 24 hours per day,
response will commence at the beginning of the access time
frame. Response time ends at the access route to remote high
Sites.
7.6 Customer is at all times responsible for the costs of
commercial AC power usage, building air conditioning, and
facility access issues.
7.7 Customer is responsible for telephone service, inclusive of
cables and wiring, which shall be run to the immediate area of
the Motorola-supplied equipment, i.e., to the same room or
within 20 cable feet of the termination point of the
equipment, whichever is closer.
7.8 In the event that Customer fails to meet any of its
responsibilities and such failure results in any delays to the
agreed upon Implementation Schedule, Customer and Motorola
shall negotiate in good faith a revised Implementation
Schedule and additional costs, if necessary, reflecting the
effect of those delays.
8.0 RIGHT TO SUBCONTRACT
Motorola and Customer shall have the right to subcontract the Site
installation work in whole or in part.
Confidential: Use or disclosure of this document is subject to the restrictions
in the Confidentiality provision.
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
70
Motorola/Nextel International Exhibit "D" "D"-13
August 9, 2000 Installation Services Agreement
9.0 SUPERVISION
Motorola shall provide Program Management to supervise the installation
and integration of the iDEN System or System Expansion. Customer shall
appoint a System Manager who shall have authority to make changes that
may be required during the installation.
10.0 OUT OF SCOPE WORK
Out of scope work requested by Customer to be performed by Motorola and
not specified in this Exhibit "D" required to complete installation or
integration shall be authorized in writing via a formal change order by
Customer prior to the commencement of such work as set forth in the
Changes section in the Agreement.
11.0 SYSTEM ACCEPTANCE
Within seven days after Motorola has advised Customer that any
increment or all of the System or System Expansion is complete,
Customer shall furnish representatives to witness acceptance testing as
set forth in the Acceptance Test Plan (ATP) and Exhibit "C." In the
event Customer does not furnish representatives within the time frame
above, Motorola may proceed with the acceptance tests and send Customer
a written report of the acceptance test results, which results shall be
as valid as if Customer representatives had personally witnessed the
ATP.
12.0 FREQUENCY MANAGEMENT RECORDS
Provision and maintenance of records required by appropriate frequency
management authorities are the sole responsibility of Customer.
13.0 BUILDING SPECIFICATIONS
No Site buildings are to be provided by Motorola. However, all System
Site buildings are to be in accordance with applicable Motorola
specifications.
----------------------------
(R)Reg. U.S. ▇▇▇. & Tm. Off.
Confidential: Use or disclosure of this document is subject to the restrictions
in the Confidentiality provision.
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
71
Motorola/Nextel International Exhibit "D" "D"-14
August 9, 2000 Installation Services Agreement
Confidential: Use or disclosure of this document is subject to the restrictions
in the Confidentiality provision.
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
72
Motorola/Nextel International Exhibit "E" "E"-1
August 9, 2000 Installation Services Agreement
EXHIBIT "E"
TO iDEN(R) INFRASTRUCTURE INSTALLATION SERVICES AGREEMENT
SYSTEM MAINTENANCE
For purposes of uniformity and brevity, references to Agreement or to an Exhibit
shall refer to the above-referenced Agreement to which this document is Exhibit
"E" and to the other Exhibits to that Agreement. All definitions set forth in
the Agreement shall apply hereto.
This Exhibit sets forth Motorola's technical maintenance obligations
(collectively, the "System Maintenance") with respect to FNE Equipment or
Software during the warranty periods stated in Section 8 of the Agreement and
any maintenance options purchased by Customer.
Motorola shall provide its "Standard Maintenance Services Plan," as set forth in
Schedules A through C below, during the initial warranty period for each item of
FNE Equipment purchased under the Agreement. The maintenance services in
Schedule B are included in the FNE item's warranty purchase price and shall be
provided for a period of 16 months after the date of Equipment shipment; the
services in Schedules A and C are provided under the terms of the annual
Software Maintenance Program (SMP). An optional maintenance service, referred to
as "Optional Local Engineering Support Services," is also offered by Motorola as
set forth in Schedule D, below. The maintenance option, when selected by
Customer, must be procured in accordance with pricing in the iDEN Infrastructure
Price Book.
MAINTENANCE SERVICE PLANS
The following is a description of the scope of work to be provided by Motorola
under Motorola's Standard Maintenance Services Plan (see Schedules A-C in
Sections 3-5) and Optional Local Engineering Support Services (see Schedule D in
Section 6).
1. SCOPE
1.1 Motorola shall maintain each FNE element covered by a
maintenance plan according to the terms and conditions set
forth herein and for the prices referenced above and in
Section 8 of the Agreement.
1.2 The Standard Maintenance Services Plan shall be provided
during the FNE Equipment warranty period as defined in Section
8 of the Agreement. The individual segments of the plan may be
extended thereafter at Motorola's then current rates. The plan
shall consist of the following:
1.2.1 Schedule A: Telephone Technical Support
1.2.2 Schedule B: Depot Repair Maintenance.
Confidential: Use or disclosure of this document is subject to the restrictions
in the Confidentiality provision.
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
73
Motorola/Nextel International Exhibit "E" "E"-2
August 9, 2000 Installation Services Agreement
1.2.3 Schedule C: Software Maintenance.
1.3 The optional maintenance services listed below will be
provided when separately purchased in accordance with the iDEN
Infrastructure Price Book:
1.3.1 Schedule D: Optional Local Engineering Support
Services.
2. CUSTOMER RESPONSIBILITIES
Customer shall:
2.1 Appoint a System Manager for each System and supply Motorola
with the name, address and telephone number of the System
Manager who shall be responsible for coordination with
Motorola personnel and who shall, at the option of the
Customer System Manager, make available a Customer
representative during Motorola performance of Services.
2.2 Control Site environmental conditions including but not
limited to temperature, humidity, voltage, VSWR, etc.
according to FNE specifications.
2.3 Provide reasonable facilities including, but not limited to,
secure storage space, a designated work space with adequate
temperature control and light, and use of all FNE and
communications facilities, including access to a telephone
line.
2.4 Supervise and perform all normal day-to-day System operational
activities.
2.5 Perform System restarts or other maintenance activity as
directed by Motorola service manuals prior to initiating a
service call for any System problem unless previously
instructed otherwise by a Motorola representative.
2.6 Assist Motorola in Motorola's diagnosis of reproducible
Software malfunctions and cooperate with Motorola remote and
local personnel as they provide technical supervision and
support to Customer's maintenance technicians.
2.7 Furnish, maintain and repair equipment, products, and services
supplied by:
2.7.1 The local telephone company (which include but are
not limited to local exchange interface),
2.7.2 Vendors other than Motorola, and
2.7.3 Vendors of mobile and/or other portable subscriber
units.
2.8 Supervise, manage and control its use of the licensed Software
including but not limited to:
2.8.1 Assuring proper machine configuration, program
installation, audit controls and operating methods;
Confidential: Use or disclosure of this document is subject to the restrictions
in the Confidentiality provision.
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
74
Motorola/Nextel International Exhibit "E" "E"-3
August 9, 2000 Installation Services Agreement
2.8.2 Implementing adequate backup plans, based on
alternate procedures to diagnose, patch and repair
Software defects in the event of a Software
malfunction; and
2.8.3 Implementing sufficient procedures and checkpoints to
satisfy Customer's requirements for security and
accuracy of input and output as well as restart and
recovery in the event of malfunction. Such procedures
and checkpoints will be provided to and followed by
Motorola.
2.9 Procure its desired test equipment for its own use.
2.10 Procure and stock Field Replaceable Units ("FRUs").
3. SCHEDULE A: TELEPHONE TECHNICAL SUPPORT
Motorola shall provide Customer a telephone number for access to
unlimited twenty-four (24) hour seven (7) days a week telephone
technical support from a Motorola supplied central support function in
Schaumburg, Illinois, as set forth in the SMP Proposal set forth in
Exhibit "O" of the Agreement.
4. SCHEDULE B: DEPOT REPAIR SERVICE
Motorola shall provide depot repair of Field Replaceable Units (FRUs)
at a Motorola repair facility or a repair facility authorized by
Motorola in accordance with Section 8.1 of the Agreement and the terms
set forth below:
4.1 Customer shall determine and identify all FRUs indicated to be
defective and ship, prepaid by Customer, said defective
equipment to the designated Motorola repair facility.
4.2 Motorola will repair and test all defective FRUs and will
return said FRUs to Customer at a location designated by
Customer within a reasonable time after receipt at the
Motorola authorized repair location. Motorola shall pay for
shipping to Customer's location.
5. SCHEDULE C: SOFTWARE MAINTENANCE PROGRAM ("SMP")
Pursuant to Section 8.4 of the Agreement, (i) Exhibit "K" sets forth
the pricing for SMP, (ii) the subsections below set forth SMP general
terms, (iii) the proposal set forth in Exhibit "O" further defines the
SMP services and pricing for 2000, and (iv) Motorola periodically shall
make proposals governing SMP services and pricing for the remaining
portions of the term of the Agreement. The license for Software
provided during the SMP shall be provided in accordance with Exhibit
"F" to the Agreement.
5.1 Definitions
Confidential: Use or disclosure of this document is subject to the restrictions
in the Confidentiality provision.
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
75
Motorola/Nextel International Exhibit "E" "E"-4
August 9, 2000 Installation Services Agreement
CERTIFICATION - The approval by Motorola that Customer's
current Software is in acceptable condition for coverage under
the Software Maintenance Program.
FEATURE - A new Software functionality or substantial
performance improvement that is made available to Customer for
the then current Software release.
FIRMWARE - Software in object code form that is implanted in
hardware such as, by example and not limitation: ROM (Read
Only Memory); PROM (Programmable Read Only Memory); or EPROM
(Erasable Programmable Read Only Memory).
MAJOR RELEASE - The issue of Software and any superseding
issue thereof which adds to, improves, or enhances existing
Software Features and capabilities involving more extensive
changes to the underlying source code or the user interface
than is the case in a Point Release. A Major Release may also
correct defects in earlier releases.
NEW FEATURE RELEASE - A Major Release which contains one or
more new Features.
POINT RELEASE - A superseding issue of the Software which adds
to, improves, or enhances existing Features and capabilities
of the Major Release of Software with which it is associated.
A Point Release may also correct defects in earlier releases.
REHOSTING - The integration of SP Software into Customer's
current release of Software.
SOFTWARE PATCH - Software that corrects or removes a
reproducible anomaly or "bug" in an existing Major Release.
SOFTWARE UPDATES - Those Software "fixes" and "patches" issued
by Motorola which correct a reproducible service-affecting
defect in a Major Release of the Software, whether or not such
defect applies to Software furnished to Customer under this
Agreement. Software Updates do not include Point Releases or
Major Releases, and do not represent an upgrade to or
enhancement of existing Software performance levels.
SPECIAL PRODUCT SOFTWARE (SP) - Features developed for
Customer which contain Customer unique features and/or
functionality.
5.2 All Major Releases and Software Updates (not Optional
Features) made available by Motorola to any other iDEN
customer shall be made available to Customer free of charge
(except for SMP charges).
Confidential: Use or disclosure of this document is subject to the restrictions
in the Confidentiality provision.
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
76
Motorola/Nextel International Exhibit "E" "E"-5
August 9, 2000 Installation Services Agreement
5.3 Optional Features and SP Software may be included in SMP at
additional cost which shall be added to the base SMP rate and
included as part of the annual audit set forth in Section
5.14.
5.4 Travel and associated expenses for on-site visits by Motorola
personnel are not covered by this SMP unless, in Motorola's
judgment, such travel is required to perform the warranty work
or is provided for under the "iDEN System Software Loading
Support Services"section of the SMP Proposal set forth in
Exhibit "O".
5.5 Customer may purchase Motorola FNE additions required to
accommodate new features and/or functionality at an additional
charge to Customer as set forth in the iDEN Infrastructure
Price Book. Motorola shall notify Customer of any additional
hardware requirements as soon as they are aware that such
additional hardware is necessary. Motorola failure to notify
Customer of material changes in hardware, when known prior to
Customer order of such features or functions, will result in
cancellation of the original order and allowance for the
Customer to reconsider its wish to proceed.
5.6 After completion of an SMP coverage period, if Customer
declines to purchase and extend the SMP for a future term or
if Customer terminates a subsequent SMP and thereby allows SMP
coverage to lapse for a System, Motorola must certify (as
described in Section 5.7 herein) the System before Motorola
will make the SMP available to Customer for such System for
another term.
5.7 Certification for SMP consists of the following: (1) Motorola
will audit Customer's System at Customer's expense; (2)
Motorola will identify the FNE and/or IPL that must be
purchased by Customer, if any, in order to bring Customer's
System to the current release level (this includes back
payment of all lapsed SMP); (3) Customer must acquire such FNE
and/or IPL; and (4) once Customer has purchased the necessary
items, Motorola will certify Customer's System and make SMP
available to Customer at the then current Motorola price.
5.8 While Customer is enrolled in the SMP, Motorola shall provide
all labor necessary to correct any service-affecting Software
defects for the full warranty period and for any period the
Software is covered by the SMP, without charge to Customer,
and in accordance with the warranty provisions contained in
Exhibit "F".
5.9 During the period SMP is purchased by Customer, Motorola shall
provide the services defined in Schedule A (Telephone
Technical Support) under SMP.
5.10 Customer shall be responsible for the first level of
maintenance, including but not limited to diagnosis and
isolation of reproducible Software malfunctions. In the event
of any such Software malfunction, Customer shall notify
Motorola immediately, followed by written confirmation of such
notice. Motorola will
Confidential: Use or disclosure of this document is subject to the restrictions
in the Confidentiality provision.
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
77
Motorola/Nextel International Exhibit "E" "E"-6
August 9, 2000 Installation Services Agreement
acknowledge receipt of verified reproducible Software
malfunctions and will promptly provide such service as is
necessary to correct service-affecting defects in accordance
with the published Motorola specifications. Customer shall be
responsible for the installation of new Releases, Updates and
associated Firmware.
5.11 SMP applies only to the Software as supplied or modified by
Motorola. Modifications, attempted modifications, or additions
to the Software by Customer or by any party other than
Motorola is a breach of the Software License contained in
Exhibit "F" to the Purchase Agreement and will void all
obligations of Motorola under the SMP.
5.12 Motorola shall have no obligation to support any Software
other than the current Release and the immediately preceding
Major Release.
5.13 The SMP supplied to Customer during the warranty period shall
be automatically renewed on a yearly basis.
5.14 Customer shall agree to yearly audits by Motorola of Systems
configurations and capacities in order to calculate the new
SMP price. The new SMP price for the following year shall be
calculated at the end of each calendar year and shall be based
on the Products in Commercial Service at that time. If
Customers' initial SMP coverage expires prior to December 31,
the renewal period shall expire on December 31, and Customer
shall be charged for the pro rata amount of the SMP fee to
cover the period from expiration to December 31 of that year.
The next renewal period shall begin on January 1 of the next
year.
5.15 The Software Maintenance Program (SMP) Proposal set forth in
Exhibit "O" shall be subject to the terms and conditions of
the Agreement into which this Exhibit "E" is incorporated. The
following statement in the "Additional Terms and Conditions"
subsection of Section 4 to Exhibit "O" is therefore
superceded:
Except as modified herein, all terms and conditions
of the [See schedule Item 4] shall apply to any
resultant Purchase Order and shall supersede and
replace any preprinted terms and conditions contained
on said Purchase Order.
6. SCHEDULE D: OPTIONAL LOCAL ENGINEERING SUPPORT SERVICES
The following Service option is offered by Motorola to Customer
concurrently with the maintenance service contained in Schedules A
through C during the warranty period and may be extended on an annual
basis.
Confidential: Use or disclosure of this document is subject to the restrictions
in the Confidentiality provision.
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
78
Motorola/Nextel International Exhibit "E" "E"-6
August 9, 2000 Installation Services Agreement
6.1 LOCAL ENGINEERING SUPPORT
Motorola shall provide local engineering support to Customer
in accordance with the selected MSO warranty in the iDEN
Infrastructure Price Book for each new switch purchased. Said
engineering support shall aid in troubleshooting switch
issues, provide telephone support to troubleshoot issues for
remote BSC and EBTS sites, and be available during Customer's
normal working hours (the equivalent of 8:00 am to 5:00 pm),
Monday through Friday.
7. SERVICE LIMITATIONS AND EXCLUSIONS
The following applies to any of the Maintenance Service Plans contained
in this Exhibit.
7.1 Service does not include installation for System hardware
expansions requested by Customer.
7.2 Service does not include: normal system operating
responsibilities; the provision of operating supplies or
replacement of consumable supplies; electrical work external
to the Switch; or any other functions not required per this
Exhibit "E".
7.3 Service does not include maintenance or repair of towers,
antennas, transmission lines, telephone lines, microwave
equipment, building's HVAC, or back-up generators unless such
products are provided by Motorola.
7.4 Movement of equipment and reinstallation by anyone not
authorized by Motorola may void any obligation or warranty by
Motorola. Such authorization by Motorola will not be
unreasonably withheld.
7.5 Customer shall not modify, remove, or obliterate the bar code,
serial number, or other identifying ▇▇▇▇(s) on the products.
Any Product so altered and in need of repair shall be repaired
at the sole discretion of Motorola.
7.6 Motorola shall have no obligation to repair or replace items
when such repair or replacement is caused by the following:
7.6.1 An event of Force Majeure. However, Motorola agrees,
upon Customer's request, to participate with Customer
and make an assessment with respect to any damage as
a result of such event and to provide a quotation
with respect to the repair and/or replacement of the
items damaged.
7.6.2 Acts of vandalism.
7.6.3 Attempts by other than personnel authorized by
Motorola to repair, maintain, install or modify the
equipment, or if the product is used in other than
its normal and customary manner;
Confidential: Use or disclosure of this document is subject to the restrictions
in the Confidentiality provision.
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
79
Motorola/Nextel International Exhibit "E" "E"-8
August 9, 2000 Installation Services Agreement
7.6.4 Customer's failure to maintain prescribed
environmental conditions or external electrical
tolerances.
7.6.5 Damage which occurs during shipment from Customer to
Motorola.
7.6.6 Replacement or malfunction of consumable items such
as printing ribbons.
7.6.7 Failure of any part of the Interconnected Carrier
equipment.
--------------------------------
(R)Reg. U.S. ▇▇▇. & Tm. Off.
Confidential: Use or disclosure of this document is subject to the restrictions
in the Confidentiality provision.
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
80
Motorola/Nextel International Exhibit "E" "E"-9
August 9, 2000 Installation Services Agreement
Confidential: Use or disclosure of this document is subject to the restrictions
in the Confidentiality provision.
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
81
Motorola/Nextel International Price Book "L"-1
August 9, 2000 Installation Services Agreement
EXHIBIT L
TO iDEN INFRASTRUCTURE INSTALLATION SERVICE AGREEMENT
PRICE BOOK, VERSION 3.1, JULY 28, 2000
Confidential: Use or disclosure of this document is subject to the restrictions
in the Confidentiality provision.
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission consisting of 387 consecutive pages pursuant to an
application for confidential treatment pursuant to Rule 24b-2 under the
Securities Act of 1934, as amended.
82
Motorola/Nextel International Price Book "O"-1
August 9, 2000 Installation Services Agreement
EXHIBIT "O"
TO iDEN(R) INFRASTRUCTURE EQUIPMENT SUPPLY AGREEMENT
SMP PROPOSAL TO CUSTOMER
DATED MARCH 14, 2000
Confidential: Use or disclosure of this document is subject to the restrictions
in the Confidentiality provision.
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission consisting of 51 consecutive pages pursuant to an
application for confidential treatment pursuant to Rule 24b-2 under the
Securities Act of 1934, as amended.
83
Agreement Schedule
iDEN(R) Infrastructure Equipment Supply Agreement
The following is a schedule of omitted information in the attached form of
agreement for each of the agreements being filed pursuant to Item 601(a),
Instruction 2 of Regulation S-K. The items below correspond to the omitted
portions of the agreements in brackets.
▇. ▇▇▇▇ Infrastructure Equipment Supply Agreement by and among Nextel
International, Inc, Motorola, Inc. and Nextel Argentina S.R.L. executed
August 14, 2000.
Item 1 -- Entity Name: Nextel Argentina S.R.L.
Item 2 -- Local Address: Palestina ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇ (▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇), ▇▇▇▇▇▇▇▇▇
Item 3 -- Country: Argentina
Item 4 -- Prior Agreements: Integrated Dispatch Enhanced
Network ("iDEN") Equipment Purchase Agreement and
the Integrated Dispatch Enhanced Network ("iDEN")
Installation and Optimization Agreement, both
between ▇▇▇▇▇-Argentina, c/▇ ▇▇▇▇▇ International,
LTD and Motorola and both dated as of May 26, 1997
as heretofore amended,
Item 5 - Signatory: /s/ ▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇
Item 6 - Fax: [*]
Item 7 - Addressee: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Item 8 - Proposal No. 700.1699
---------------------------
(R) Registered U.S. Patent & Trademark Office.
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
84
Item 9 - Copied to ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Item 10 - The pricing information presented is for the
Argentina entity only; pricing varies by subsidiary
▇. ▇▇▇▇ Infrastructure Equipment Supply Agreement by and among Nextel
International, Inc, Motorola, Inc. and Nextel Telecomunicacoes Ltda.
executed August 14, 2000.
Item 1 -- Entity Name: Nextel Telecomunicacoes Ltda.
Item 2 -- Local Address: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇, ▇(▇)▇▇▇▇▇.
▇▇▇▇ of Sao Paulo, State of Sao Paulo
Brazil
Item 3 -- Country: Brazil
Item 4 -- Prior Agreements: Rio de Janeiro Integrated Dispatch Enhanced Network
("iDEN") Equipment Purchase Agreement and the
Integrated Dispatch Enhanced Network ("iDEN")
Installation and Optimization Agreement, both
between ▇▇▇▇▇ International (Brazil), Ltd. and
Motorola and both dated as of May 9, 1997, as
heretofore amended, and the Sao Paulo Integrated
Dispatch Enhanced Network ("iDEN") Equipment
Purchase Agreement and the Integrated Dispatch
Enhanced Network ("iDEN") Installation and
Optimization Agreement, both between ▇▇▇▇▇
International (Brazil), Ltd. and Motorola and both
dated as of March 21, 1997, as heretofore amended,
Item 5 - Signatory: /s/ Alexis Mozarovski
Name: Alexis Mozarovski
Item 6 - Fax: [*]
Item 7 - Addressee: Mr. Louis Herrra (cc: Egilson ▇▇▇▇▇▇▇▇)
Item 8 - Proposal No. 700.1697
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
85
Item 9 - Copied to ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
Item 10 - The pricing information presented is for the
Argentina entity only; pricing varies by subsidiary
▇. ▇▇▇▇ Infrastructure Equipment Supply Agreement by and among Nextel
International, Inc, Motorola, Inc. and Nextel de Mexico, S.A. de C.V.
executed August 14, 2000.
Item 1 -- Entity Name: Nextel de Mexico, S.A. de C.V.
Item 2 -- Local Address: Comunicaciones Nextel de Mexico, S.A. de C.V., a
company with offices at Blvd. ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇. ▇▇, ▇▇▇▇ ▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇, D.F.
Item 3 -- Country: Mexico
Item 4 -- Prior Agreements: Integrated Dispatch Enhanced Network ("iDEN")
Equipment Purchase Agreement and the Integrated
Dispatch Enhanced Network ("iDEN") Installation and
Optimization Agreement, both between Corporacion
Mobilcom, c/▇ ▇▇▇▇▇ International, LTD, and
Motorola and both dated as of August 28, 1997, as
heretofore amended,
Item 5 - Signatory: /s/ ▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇
Item 6 - Fax: [*]
Item 7 - Addressee: Mr. ▇▇▇▇ ▇▇▇▇▇▇▇
Item 8 - Proposal No. 700.1698
Item 9 - Copied to ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
86
Item 10 - The pricing information presented is for the
Argentina entity only; pricing varies by subsidiary
▇. ▇▇▇▇ Infrastructure Equipment Supply Agreement by and among Nextel
International, Inc, Motorola, Inc. and Nextel del Peru, S.A. executed
August 14, 2000.
Item 1 -- Entity Name: Nextel del Peru, S.A.
Item 2 -- Local Address: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇, ▇▇▇▇ ▇▇, ▇▇▇▇
Item 3 -- Country: Peru
Item 4 -- Prior Agreements: iDEN Infrastructure Equipment Purchase Agreement
and the iDEN Infrastructure Installation and
Optimization Agreement, both between Valorcom, s.a.
and Motorola and both dated as of
February 16, 1998, as heretofore amended,
Item 5 - Signatory: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
Item 6 - Fax: [*]
Item 7 - Addressee: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Item 8 - Proposal No. 700.1700
Item 9 - Copied to ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
Item 10 - The pricing information presented is for the
Argentina entity only; pricing varies by subsidiary
▇. ▇▇▇▇ Infrastructure Equipment Supply Agreement by and among Nextel
International, Inc, Motorola, Inc. and Nextel Communications
Philippines, Inc. executed August 14, 2000.
Item 1 -- Entity Name: Nextel Communications Philippines, Inc.
Item 2 -- Local Address: at ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Building,
Emerald Avenue, Pasig City, Philippines 1605,
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.
87
Item 3 -- Country: Philippines
Item 4 -- Prior Agreements: Integrated Dispatch Enhanced Network ("iDEN")
Equipment Purchase Agreement and the Integrated
Dispatch Enhanced Network ("iDEN") Installation
and Optimization Agreement, both between Infocom
Communications Network Inc. and Motorola and both
dated as of March 16, 1996, as heretofore amended,
Item 5 - Signatory: /s/ ▇▇▇▇ Urera
Name: ▇▇▇▇ Urera
Item 6 - Fax: [*]
Item 7 - Addressee: Mr. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Item 8 - Proposal No. 700.1701
Item 9 - Copied to ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
Igi ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
Item 10 - The pricing information presented is for the
Argentina entity only; pricing varies by subsidiary
* Confidential portions omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment
pursuant to Rule 24b-2 under the Securities Act of 1934, as amended.