Exhibit 10.55
WIRELESS BROADBAND SYSTEM
SERVICES AGREEMENT
BETWEEN
MOTOROLA, INC.
AND
CLEARWIRE US LLC
MOTOROLA/CLEARWIRE CONFIDENTIAL
WIRELESS BROADBAND SYSTEM
SERVICES AGREEMENT
This Wireless Broadband System Services Agreement ("Services Agreement") is
between Motorola, Inc., a Delaware corporation, ("Motorola", which term
will also mean, where the context requires, Motorola subsidiaries or
subcontractors involved in providing services or materials for this
Purchase Agreement) and Clearwire US LLC, a Nevada limited liability
company ("Clearwire" which term will also mean, where the context requires,
"Clearwire Affiliates").
RECITALS:
1. Clearwire has obtained or will obtain a license to operate wireless
broadband communications systems in the United States and other countries.
2. Motorola desires to sell and Clearwire may choose to purchase services for
Clearwire's (and Clearwire's Affiliates) Wireless Broadband Infrastructure
System (as hereinafter defined) as set forth in this Services Agreement and
in the attached Exhibits, all of which are incorporated herein.
AGREEMENT:
The parties agree as follows:
1. DEFINITIONS (capitalized terms used within a definition are defined in this
Section in alphabetical order). Defined terms will be capitalized
throughout this Services Agreement and will be read in the singular, plural
or the tense as the context requires. Definitions are contained in Exhibit
"D".
2. SCOPE OF AGREEMENT
2.1 Motorola will furnish to Clearwire (or Clearwire Affiliates, as
applicable), and Clearwire may purchase from Motorola the Services as
defined herein and listed within Exhibit "A".
2.2 This Services Agreement may be canceled only upon the terms and
conditions contained herein.
2.3 Affiliates of Clearwire may also purchase Services from Motorola under
this Services Agreement and Clearwire will guarantee payment for any
Services Motorola provides.
2.4 Examples of potential Services are contained in Exhibit "B",
Deployment Program examples, and the following listing of Services:
- Planning and Design of Network, including capacity and
coverage considerations
- Site selection
- Installation and commissioning of network elements
- Integration of Network Elements into network
- Acceptance testing of network
- Program management and project administration
- Design, provision and integration of Network Management
System to manage network from a single NOC
- Custom OSS Integration to interface to existing (or supply
new) CRM, Order Manager, Subscriber provisioning and
Activation, Network Inventory, Performance and SLA
Monitoring, Service Assurance solutions
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- Billing integration
- Over-the-air Provisioning of hand sets and CPE
- Network Performance and Optimization including SLA and QoS
management
- Network Security design, including provision of appropriate
firewalls and intrusion detection and prevention devices
- Security vulnerability assessment and remediation services
- Security monitoring and management
- Network operations and maintenance
- Spares management
2.5 [***]
3. OBLIGATIONS OF CLEARWIRE
Clearwire will:
3.1 Make the payments according to the schedule set forth in Section 5 of
this Services Agreement.
3.2 Perform all of its other obligations set out in this Services
Agreement and the Exhibits attached hereto.
4. OBLIGATIONS AND REPRESENTATIONS OF MOTOROLA
With regard to providing Services, Motorola will:
4.1 Comply with the SOW for the specific project agreed between the
parties.
4.2 Otherwise perform all of its obligations under this Agreement and
Exhibits for the particular Service to be provided.
5. PAYMENT AND PRICING
Clearwire will pay to Motorola the price for the particular Services, as
set forth in Exhibit "A", in U.S. dollars (except as may be specifically
set forth below) and according to the following terms and payment
schedules:
5.1 General Payment Terms
5.1.1 Clearwire will be invoiced [***] for installation or training
Services rendered upon their completion. Payment for other
Services are as mutually agreed in writing or as listed in
Exhibit "A".
5.1.2 Payment for all service and related materials will be net [***]
from invoice date.
5.1.3 Clearwire will be responsible for the payment of all applicable
sales, use, retailers occupation, excise, property and other
assessments in the nature of taxes however designated, on the
Products and Services provided to Clearwire pursuant to this
Agreement, exclusive however, of any taxes measured by
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Motorola's net income or based on Motorola's franchise. Personal
property taxes assessable on the Products will be the
responsibility of Clearwire. To the extent Motorola is required
by law to collect such taxes (state or local), one hundred
percent (100%) thereof will be added to invoices as separately
stated charges and paid in full by Clearwire, unless the
Clearwire is exempt from such taxes and furnishes Motorola with a
certificate of exemption in a form reasonably acceptable to
Motorola. In the event Clearwire claims exemption from sales, use
or other such taxes under this Agreement, Clearwire will hold
Motorola harmless from any and all subsequent assessments levied
by a proper taxing authority for such taxes, including interest,
penalties and late charges.
5.1.4 Clearwire will use commercially reasonable efforts to notify
Motorola of any disputed amounts under any invoice in writing
prior to the invoice due date; provided that Clearwire shall pay
to Motorola the undisputed portion of any invoice within the time
frame set forth in Section 5.1.1. Clearwire's failure to notify
Motorola of any disputed amount prior to the invoice due date
will not constitute a waiver by Clearwire of any dispute
regarding any previously paid invoice; provided that, in no event
shall Clearwire dispute any invoice submitted by Motorola
hereunder more than [***] after the date of such invoice. For any
undisputed amount due hereunder which remains unpaid, Clearwire
will pay Motorola a service fee at the rate of [***] of the
amount due for each month or portion thereof that the amount
remains unpaid.
6. WARRANTIES
6.1 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 Clearwire reasonably
determines that any work has not been performed in a good and
workmanlike manner or in accordance with the specifications, Clearwire
will promptly notify Motorola. If Motorola determines that the
Services were defective, then Motorola will take prompt remedial
action to repair or replace the defective Services at Motorola's cost
and expense.
6.2 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. FURTHERMORE, BECAUSE EACH WIRELESS
RADIOTELEPHONE SYSTEM IS UNIQUE, MOTOROLA DISCLAIMS LIABILITY FOR
RANGE, COVERAGE, SUBSCRIBER CAPACITY, SERVICE LEVEL OR OPERATION OF
THE SYSTEM, AS A WHOLE, EXCEPT AS SPECIFICALLY SET FORTH IN THE
WARRANTIES CONTAINED IN THIS AGREEMENT.
7. CONFIDENTIALITY
During the entire term of this Agreement, Section 1 of the Side Agreement
between Clearwire and Motorola, dated June 28, 2006, applies to define
Confidential Information, each party's use of the other's Confidential
Information, and dissemination of information about this Agreement to third
parties in any form.
8. TRADEMARK AND PUBLICITY
Nothing contained in this Services Agreement will 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.
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Any publicity, advertising, etc. with regard to this Services Agreement or
the System which mentions the other party will be mutually agreed upon
prior to use.
9. FORCE MAJEURE
Except for payment due, neither party will be liable for any delay or
failure to perform due to any cause beyond its reasonable control. Causes
include strikes, acts of God, interruptions of transportation. The delivery
schedule will be considered extended by a period of time equal to the time
lost because of any excusable delay.
10. TERMINATION
10.1 Either party may terminate this Services Agreement without liability
by notice pursuant to Section 18 if the other makes a general
assignment for the benefit of creditors, or if a petition in
bankruptcy or under any insolvency law is filed by or against the
other and such petition is not dismissed within [***] after it has
been filed or the other commits a material breach of its obligations
hereunder. However, in the case of any such breach which is capable of
being cured, neither party will terminate this Services Agreement
unless and until the other will have failed to make good such default
within [***] after it will have been served with a notice requiring
that such default be made good and stating its intention to terminate
the Services Agreement if compliance with the notice is not met.
10.2 The termination of this Services Agreement will not affect or
prejudice any provisions of this Services Agreement, which are
expressly or by implication provided to continue in effect after such
termination.
11. INDEMNIFICATION; LIMITATION OF LIABILITY
During the term of this Services Agreement, the parties will indemnify and
hold harmless each other together with their officers, agents and employees
from any and all loss, damage, expense, judgment, lien, suit, cause of
action, demand or liability for personal injury, including death and
tangible property damage, which may be imposed on or incurred by one party
arising directly out of the negligent acts or omissions of the other, its
agents, subcontractors, or employees during the performance of any work
hereunder. The offending party will, at its sole expense, defend any suit
based upon a claim or cause of action and satisfy any judgment that may be
rendered against the other resulting therefrom, provided that the offending
party will be given (i) prompt notice of any such claim or suit; and (ii)
full opportunity to defend such suit The offended party may, at its
election, participate in the defense and will cooperate fully in defending
any claim or suits. The offending party will pay all costs, expenses, and
reasonable attorney's fees incurred by the offended party in connection
with any such claim or suit or in enforcing this indemnity provision,
provided a valid claim is presented.
EXCEPT AS PROVIDED IN THIS SECTION 11 AND BREACHES OF CONFIDENTIALITY,
NEITHER PARTY, WHETHER AS A RESULT OF BREACH OF CONTRACT, WARRANTY, TORT
(INCLUDING NEGLIGENCE), PATENT INFRINGEMENT, COPYRIGHT INFRINGEMENT OR
OTHERWISE, WILL 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, FACILITIES OR SERVICE, OR DOWNTIME COSTS. EXCEPT FOR
THE INDEMNITY OBLIGATION IN THIS SECTION 11, BREACHES OF CONFIDENTIALITY
AND FOR PAYMENTS DUE, A PARTY'S TOTAL LIABILITY TO THE OTHER FOR ANY BREACH
OF THIS SERVICES AGREEMENT WILL IN NO EVENT EXCEED THE GREATER OF [***] OR
THE TOTAL VALUE OF. SERVICES INVOICED BY MOTOROLA TO CLEAR WIRE IN THE
PRIOR [***]
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12. CHANGES
Certain changes may be made within the scope of this Services Agreement
without formal amendment thereto by written "Change Orders" signed by
duly-authorized representatives of both parties.
Within ten (10) days of the signing of this Services Agreement, the parties
will agree, in writing, on the authority of their respective duly
authorized representatives, to sign such Change Orders on their behalf.
13. ASSIGNMENT
The Services Agreement will accrue to the benefit of and be binding upon
the parties hereto and any successor entity into which either party will
have been merged or consolidated or to which either party will have sold or
transferred all or substantially all its assets, but it will not be
otherwise assigned by either party (other than an assignment by operation
of law), without the prior written consent of the other party. It is the
intention of the parties that the exclusive and preferred supplier
commitments survive any change of control of Clearwire. The parties agree
that any consent to a requested assignment will not be unreasonably
withheld or delayed.
14. GOVERNING LAW
The laws of the State of New York, USA, will govern the validity,
performance and all matters relating to the effect of this Services
Agreement and any amendment hereto.
15. EXPORT CONTROLS
15.1 If, at the time or times of Motorola's performance hereunder, a
validated export license is required for Motorola, or its
subcontractor, to lawfully export the goods or technical data from the
United States of America or the such other country of origin, then the
issuance of such license to Motorola, or its subcontractor in
accordance with the rules and regulations of the applicable
country(ies), will constitute a condition precedent to Motorola's
performance of its obligations hereunder. Motorola will apply for the
export license for the products supplied hereunder based upon
information timely supplied by the Clearwire. Clearwire is responsible
for any applicable import license requirements. Clearwire and Motorola
acknowledge and agree that any delay in the grant of such licenses
and/or approvals may impact the schedule of performance.
15.2 If, at the time or times of Motorola's performance hereunder,
regulatory approval is required for the provision of Services or any
part thereof, then such approval will constitute a condition precedent
to Motorola's performance of its obligations hereunder.
15.3 Clearwire and Motorola agree to comply with all applicable export laws
and regulations of the United States of America or such other country
of origin.
16. ORDER OF PRECEDENCE
IN the event of an inconsistency in this Services Agreement, the
inconsistency will be resolved by giving precedence in the following order:
16.1 Exhibit "A" and all duly executed amendments to Exhibit "A";
16.2 All other Exhibits and all duly executed amendments to said Exhibits
(provided, however, that Exhibit "B" is a list of examples of possible
areas of Service); and
16.3 This Services Agreement and duly executed amendments to this Services
Agreement, with the latest amendment taking precedence over earlier
amendments.
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17. LANGUAGE OF AGREEMENT
In the event that this Services Agreement is translated into any other
language, the English language version hereof will take precedence and
govern.
18. NOTICE
18.1 Notices required to be given by one party to another will be in the
English language unless expressly agreed otherwise. Said notices will
be deemed properly given if reduced to writing and personally
delivered or transmitted by registered or certified post to the
address below, postage prepaid, and will be effective upon receipt.
18.1.1 Motorola will send notices as follows:
Clearwire US LLC
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
With a copy to:
Clearwire US LLC
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Legal Department
And with a copy to:
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
18.1.2 Clearwire will send notices as follows:
Motorola, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ Heights, II. 60004
Fax ▇▇▇-▇▇▇-▇▇▇▇
Attention: Clearwire Program Management
CC: Senior Commercial Attorney, Law Department
18.2 Either party may change the addresses for giving notice from time to
time by written instructions to the other of such change of address.
19. SURVIVAL OF PROVISIONS
The parties agree that where the context of any provision indicates an
intent that it will survive the term of this Services Agreement then it
will survive.
20. WAIVER
Failure or delay on the part of Motorola or Clearwire to exercise any
right, power or privilege hereunder will not operate as a waiver thereof.
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21. SEVERABIL1TY
In the event any one or more of the provisions of this Services Agreement
is held to be unenforceable under applicable law, (a) such unenforceability
will not affect any other provision of this Services Agreement; (b) this
Services Agreement will be construed as if said unenforceable provision had
not been contained therein; and (c) the parties will negotiate in good
faith to replace the unenforceable provision by such as has the effect
nearest to that of the provision being replaced.
22. AUTHORITY
Each party hereto represents and warrants that (i) it has obtained all
necessary approvals, consents and authorizations of third parties and
governmental authorities to enter into this Services Agreement and to
perform and carry out its obligations hereunder; (ii) the persons executing
this Agreement on its behalf have express authority to do so, and, in so
doing, to bind the party thereto; (iii) the execution, delivery and
performance of this Services Agreement does not violate any provision of
any bylaw, charter, regulation or any other governing authority of the
party; and (iv) the execution, delivery and performance of this Services
Agreement has been duly authorized by all necessary partnership or
corporate action and this Services Agreement is a valid and binding
obligation of such party, enforceable in accordance with its terms.
23. TERM
The initial term of this Agreement will be for eight (8) years from the
Effective Date. This Agreement will be automatically renewed for
consecutive one (1) year terms unless either party notifies the other party
in writing of its intent to terminate the Agreement at least 120 days prior
to the expiration of the initial term or any renewal thereof.
24. COVENANT NOT TO EMPLOY
During the period of time beginning with the execution of this Agreement
and ending at the conclusion of the initial term, Clearwire will not employ
or offer employment to any employee formerly employed by NextNet Wireless,
Inc. and who became an employee of Motorola on the Effective Date who is
involved in the performance of Services to Clearwire. If at any time this
provision is found to be overly broad under the laws of an applicable
jurisdiction, then this provision will be modified as necessary to conform
to such laws rather than be stricken.
25. UNITED STATES OF AMERICA ("U.S.") - GOVERNMENT COMPLIANCE
This Agreement is a commercial contract and is governed by the terms and
conditions negotiated by the parties. Clearwire represents and warrants
that: (i) it is not a governmental entity; (ii) it is not owned in whole or
in part, directly or indirectly, by any governmental entity; (iii) the
purchases contemplated under this Agreement will not be financed using any
funds obtained from any government entity (including, without limitation,
OPIC, Eximbank or other similar agencies); and (iv) there is no other basis
on which any regulations, decrees or laws applicable to sales to a
governmental entity could be deemed applicable to this Agreement. The term
"governmental entity," as used herein, will include agencies and
instrumentalities of U.S. federal, state and local governments as well as
of governments outside of the U.S.
In the event that Clearwire elects to sell the products to a governmental
entity, Motorola makes no representations with respect to the ability of
its goods, services, or prices to satisfy any statutes, regulations or
provisions relating to such governmental sales.
26. ENTIRE AGREEMENT
This Services Agreement and the Exhibits hereto, together with Section 1 of
the Side Agreement referred to in Section 7, constitute the entire
understanding between the parties concerning the provision of Services to
Clearwire and supersede all prior discussions, agreements and
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representations, whether oral or written and whether or not executed by
Motorola and Clearwire. No modification, amendment or other change may be
made to this Services Agreement or any part thereof unless reduced to
writing and executed by authorized representatives of both parties.
The terms and conditions of this Services Agreement will prevail
notwithstanding any variance with the terms and conditions of any order
submitted by Clearwire following execution of this Services Agreement. In
no event will the preprinted terms and conditions found on any Clearwire
purchase order, acknowledgment or other form be considered an amendment or
modification of this Services Agreement, even if such documents are signed
by representatives of both parties; such preprinted terms and conditions
will be null and void and of no force and effect
27. COUNTERPARTS
This Services Agreement may be executed in multiple counterparts, each of
which will be deemed an original and all of which taken together will
constitute one and the same instrument. Facsimile or digital signatures
will be treated as originals.
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Executed as of this 29th day of August, 2006 ("Effective Date").
MOTOROLA, INC. CLEARWIRE US LLC
By: /s/ ▇. ▇. ▇▇▇▇▇▇ By:
--------------------------------- ------------------------------------
(Signature) (Signature)
Name: ▇. ▇. ▇▇▇▇▇▇ Name:
(Print - Block Letters) ----------------------------------
(Print - Block Letters)
Title: SENIOR VICE-PRESIDENT Title:
(Print - Block Letters) ---------------------------------
(Print - Block Letters)
Date: 8/29/06 Date:
----------------------------------
Clearwire Corporation hereby guarantees payment of the purchase price for any
Services purchased by Clearwire or any Clearwire Affiliate under this Agreement,
subject to the exercise of any rights of Clearwire or such Clearwire Affiliate
with respect to such payment. Motorola need not exhaust remedies against
Clearwire and Clearwire Affiliates (other than to demand payment and to allow
for the passage of the applicable cure period) prior to pursuing this guarantee
of Clearwire Corporation.
CLEARWIRE CORPORATION
By:
---------------------------------
(Signature)
Name:
-------------------------------
(Print - Block Letters)
Title:
------------------------------
(Print - Block Letters)
Date:
-------------------------------
Executed as of this 29th day of August, 2006 ("Effective Date").
MOTOROLA, INC. CLEARWIRE US LLC
By: By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------- ------------------------------------
(Signature) (Signature)
Name: Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------- (Print - Block Letters)
(Print - Block Letters) Title: Co-President & Co-CEO
Title: (Print - Block Letters)
------------------------------ Date: 8/29/06
(Print - Block Letters)
Date:
-------------------------------
Clearwire Corporation hereby guarantees payment of the purchase price for any
Services purchased by Clearwire or any Clearwire Affiliate under this Agreement,
subject to the exercise of any rights of Clearwire or such Clearwire Affiliate
with respect to such payment. Motorola need not exhaust remedies against
Clearwire and Clearwire Affiliates (other than to demand payment and to allow
for the passage of the applicable cure period) prior to pursuing this guarantee
of Clearwire Corporation.
CLEARWIRE CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
(Signature)
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
(Print - Block Letters)
Title: Co-President & Co-CEO
(Print-Block Letters)
Date: 8/29/06
EXHIBIT "A"
TO THE
WIRELESS BROADBAND SYSTEM
SERVICES AGREEMENT
SERVICES AND PRICE LIST
1. TBD based on quotes for specific Services.
2. Other Services or Training may be added by mutual agreement of the parties
and Motorola may provide quotes for specific Services for Clearwire's
consideration.
A-1
EXHIBIT "B"
TO THE
WIRELESS BROADBAND SYSTEM
SERVICES AGREEMENT
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B-2
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B-3
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B-4
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EXHIBIT "C"
TO THE
WIRELESS BROADBAND SYSTEM
SERVICES AGREEMENT
RESERVED
C-1
EXHIBIT "D"
TO THE
WIRELESS BROADBAND SYSTEM
SERVICES AGREEMENT
DEFINITIONS
ACCEPTANCE TEST PLAN
The agreed-upon testing described and administered after installation services.
CLEARWIRE AFFILIATES
Entities which are controlled with greater than 50% ownership by Clearwire.
EQUIPMENT
The Motorola-supplied hardware for the System, but excluding Subscriber
Equipment.
PRODUCT
All Equipment and Software purchased for use in Clearwire's wireless broadband
network.
SERVICES
Those Motorola functions included in this Services Agreement including, but not
limited to, the listing of functions in Section 2.4, and such other functions as
may be more fully set forth in Exhibit "A" or an individual SOW.
SOFTWARE
The object-code computer programs, including Firmware object code, licensed by
Motorola for use solely in conjunction with the Equipment, which enables the
Equipment to perform their functions and procedures. Any reference to Software
being "sold" or "purchased" is understood in fact to be a reference in fact to
the Software being licensed.
SUBSCRIBER EQUIPMENT
Any device or portable radiotelephone equipment intended for System use, whether
or not in actual use.
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