EXHIBIT 10.24
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Confidential Treatment Requested
Under 17 C.F.R.(S)(S)200.80(b)(4)
200.83 and 230.406
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Agreement
between
Siemens Aktiengesellschaft, Berlin and Munchen,
Federal Republic of Germany,
represented by the Business Unit Mobile Networks,
- hereinafter referred to as "SIEMENS"-
and
Wireless Facilities Inc., San Diego, CA
United States of America
- hereinafter referred to as "CONSULTANT"-
Preamble
Article 1 - Scope of CONSULTANCY-SERVICES
1.1 Siemens' Public Communication Networks Group, Mobile Networks is
performing radio network planning services for worldwide Projects.
Subject to the terms and conditions of this agreement SIEMENS
(including any SIEMENS company which is owned or controlled either
directly or indirectly by Siemens as to 50 % (fifty percent) or more
of the issued share capital and/or voting rights)
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hereby entrusts CONSULTANT with the performance of such radio network
planning projects (hereinafter collectively referred to as,
"CONSULTANCY-SERVICES"):
1.2 SIEMENS will assign the CONSULTANCY-SERVICES to CONSULTANT in advance
on a case by case basis depending on the duration and kind of the
assignment and in accordance with the timetable that follows:
One (1) week: On short notice (up to 2 working days)
Up to (4) weeks support: Two (2) weeks
Up to three (3) months: One (1) month
Over three (3) months support: Mutually agreed between SIEMENS and
CONSULTANT
1.3 Any and all CONSULTANCY-SERVICES shall be rendered in such manner, in
accordance with such standards and specifications, and at such dates
and times or in accordance with such schedules as requested or
prescribed by SIEMENS from time to time. Unless specified and agreed
otherwise specifically between SIEMENS and the CONSULTANT in writing,
all tools and materials required by CONSULTANT shall be provided by
CONSULTANT and any compensation to be paid to CONSULTANT by SIEMENS
includes payment for use of CONSULTANT's facilities, tools, materials
and equipment.
CONSULTANT shall be available through the term of this Agreement so as
to promptly respond to all requests or requirements of SIEMENS, it
being understood by CONSULTANT that time is of the essence in
CONSULTANT's performance of the CONSULTANCY SERVICES under this
Agreement.
1.4 Irrespective of the fact, that rendering CONSULTANCY-SERVICES as set
forth in this Agreement is the sole responsibility and liability of
the CONSULTANT, SIEMENS' personnel shall constantly be involved in the
CONSULTANT'S work at all stages. Such SIEMENS personnel shall be given
full opportunity to become familiar with the relevant aspects
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of CONSULTANT's CONSULTANCY SERVICES and be directly involved in the
preparation of the Deliverables as per Article 5 below.
Article 2 - Basis of this Agreement
2.1 This Agreement is concluded on the basis that:
(a) with regard to the scope of work specified in Article 1 the
CONSULTANT may not assign or subcontract any of its duties
without the prior written consent of SIEMENS. However, the
CONSULTANT may engage other contractors to assist the CONSULTANT
in providing the CONSULTANCY SERVICES under this Agreement,
provided, that the CONSULTANT obtains the prior written consent
(such consent not to be unreasonably withheld) of SIEMENS. The
CONSULTANT will be solely responsible for and pay the fees, and
out-of-pocket expenses of the CONSULTANT's contractor, except
where SIEMENS has initially asked the CONSULTANT to engage
CONSULTANT's contractors, in which event SIEMENS shall be
responsible for such fees and expenses, and provided, that the
CONSULTANT has obtained SIEMENS' prior written approval of the
terms of engagement of such CONSULTANT's contractors.
(b) SIEMENS may engage such other consultants as may in SIEMENS
opinion be required in connection with matters in relation to
which the CONSULTANT is advising including technical consultants,
legal consultants and accountants;
2.2 For rendering the CONSULTANCY-SERVICES the CONSULTANT has set up a
project-team, which consists of experienced CONSULTANT's with broad
expertise in the telecommunication business including the managerial,
administrative and quality aspects. The CONSULTANT hereby represents
and warrants that all consultants have international expertise and, in
addition, all
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consultants' have excellent communication skills and experience in
client oriented projects with needs for organisational development.
The members of the team will not be changed without the prior
written consent of SIEMENS which consent shall not be
unreasonably withheld. Furthermore, the CONSULTANT will replace
upon written request of SIEMENS at any time any member of the
team.
2.3 The CONSULTANT represents and warrants that:
(a) it is duly established and validly existing under the laws of its
jurisdiction of incorporation and has full power, capacity and
authority to conduct its business, and is lawfully qualified to
do business in those jurisdictions in which such qualification is
required;
(b) it has full power and capacity to execute and perform this
Agreement;
(c) it has full power and capacity to undertake and perform the
obligations assumed by it herein;
(d) this Agreement has been duly authorised and executed by it and
constitutes its legal, valid and binding obligations enforceable
in accordance with its terms;
(e) the execution and performance of this Agreement do not and will
not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, its statutes or
articles of incorporation or laws or by-laws or any agreement or
instrument by which it is bound or to which its properties are
subject;
(f) neither it nor any of its subsidiaries is involved in any legal,
arbitration or administrative proceedings nor are any such
proceedings pending against it or any of its subsidiaries which
in either case have or may have a
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material adverse effect on its ability to perform this Agreement,
its financial position or on its and its subsidiaries' financial
position taken as a whole;
(g) all CONSULTANCY-SERVICES provided hereunder shall be performed in
good faith and in a professional manner with due care and
attention and in accordance with good CONSULTANT practice and
standards and according to the latest technical standards;
(h) it recognises the importance of this appointment and will commit
the resources appropriate and necessary to the fulfillment of its
obligations and will assign to it the priority necessary to meet
the milestone schedule as per Article 5.1 below;
(i) it will use all reasonable efforts to meet deadlines reasonably
set by SIEMENS which deadlines shall be in addition to and shall
in no way affect the milestone schedule as mentioned in Article
5.1 below;
(j) it will promptly notify SIEMENS in writing of any potential or
actual conflict of interest on its part of which it becomes
aware.
Article 3 - Duties and obligations of the CONSULTANT
3.1 The CONSULTANCY-SERVICES shall be performed in a workmanlike and
professional manner by the CONSULTANT or employees of the CONSULTANT
having a level of skill in the area commensurate with the requirements
of the Consulting Service to be performed and the applicable
professional standards currently recognized by such profession.
3.2 SIEMENS and the CONSULTANT shall each nominate to the other Party in
writing a project leader who is well experienced to give information
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and support for the implementation and performance of this Agreement
and who shall be in the position to take related decisions or to
introduce them.
3.3 While performing the CONSULTANCY-SERVICES the CONSULTANT will maintain
close contact with SIEMENS.
Additionally SIEMENS and the CONSULTANT agree to consult and, if
necessary to meet with each other in order to resolve any ambiguities
or differences concerning the CONSULTANCY-SERVICES.
Article 4 - Duties and obligations of SIEMENS
4.1 SIEMENS will upon request provide the CONSULTANT with the information
necessary to render the CONSULTANCY SERVICES.
4.2 Furthermore SIEMENS will participate in the project-team as mentioned
in Section 1.3 above, which means that SIEMENS will assist the
CONSULTANT in the performance of the CONSULTANCY-SERVICES.
4.3 CONSULTANT is and shall remain at all times an independent contractor,
and is not an employee, agent or representative of SIEMENS.
Further, CONSULTANT is not authorized to and shall not at any time
attempt to act, or act on behalf of SIEMENS to bind SIEMENS in any
manner whatsoever to any obligation whatsoever. Further, CONSULTANT
shall not engage in any acts which may lead any person whomsoever to
believe that CONSULTANT is a employee, agent or representative of
SIEMENS. SIEMENS shall be promptly notified by CONSULTANT in writing
of any misunderstanding by third parties as to CONSULTANT'S
relationship with SIEMENS.
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Article 5 - Prices, Discounts, Terms of Payment
5.1 The prices which CONSULTANT shall charge SIEMENS are as follows (in
US$ per hour):
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Expertise Level [***] Engineers* [***] Engineers*
--------------------------------------------------------------
Technician $ [***] $ [***]
--------------------------------------------------------------
Associate $ [***] $ [***]
--------------------------------------------------------------
Design Engineer $ [***] $ [***]
--------------------------------------------------------------
Senior Engineer $ [***] $ [***]
--------------------------------------------------------------
Manager $ [***] $ [***]
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*means number of WFI-Engineers contracted
simultaneously in the entirety of SIEMENS-
projects
Per-site-prices for Turnkey-Projects may be mutually agreed on a per
project basis.
The minimum Qualifications for the above Expertise Levels are the
following:
Technician [***]
Associate Engineer [***]
Design Engineer [***]
* Confidential Treatment Requested
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Senior Engineer [***]
Manager [***]
5.2 The foregoing amounts include all costs and expenses, including the
daily allowance fees (per diem rate), incurred by CONSULTANT pursuant
to this Agreement or as may be required or incurred on the performance
of CONSULTANT's obligations under this Agreement; provided that the
prior written consent of SIEMENS is secured in each instance and
CONSULTANT provides to SIEMENS evidence and prove of payment.
For the cities/regions listed in APPENDIX 1, where the allowance fees
substantially exceed the world wide average, a ▇▇▇▇-up to the charges
listed in (S)5.1 may be mutually agreed on a project-specific basis.
* Confidential Treatment Requested
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SIEMENS agrees to reimburse CONSULTANT for any ordinary and reasonable
costs and expenses incurred for traveling pursuant to the terms and
conditions of this Agreement, in general limited to the following
expenses:
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Item Expenses
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accommodation Maximum: four star hotel
Airline ticket (per 3 month) Coach Ticket
Rental cars Will be provided by SIEMENS
(project)
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5.3 Income, sales or any other duties or taxes levied on CONSULTANT by
reason of any payments made by SIEMENS to CONSULTANT shall be the
responsibility of and be borne by CONSULTANT.
Article 6 - Results of CONSULTANCY-SERVICES
6.1 All ideas, inventions, innovations, improvements, know-how, materials,
works, writings, notes, reports, publications and information
collected, assembled, conceived, authored, created, suggested,
originated, developed, constructed, rendered or provided by the
CONSULTANT as a result of or in the course of CONSULTANT's
CONSULTANCY-SERVICES (hereinafter referred to as "Results") shall be
the sole property of SIEMENS.
CONSULTANT expressly acknowledges that all copyrightable materials
written, developed, produced, or which otherwise arise out of the
CONSULTANCY-SERVICES performed by the CONSULTANT under this
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Agreement shall be owned by SIEMENS. CONSULTANT hereby transfers and
assigns to SIEMENS all right, title and interest in and to the same.
6.2 If and to the extent the Results make use of pre-existing information
of the CONSULTANT including but not limited to any kind of
intellectual property rights such as patents, patent applications or
copyrights (hereinafter referred to as "Background Information"), the
CONSULTANT herewith grants to SIEMENS the non-exclusive, perpetual,
fully-paid up license to use and sublicense such Background
Information in any way it wants.
6.3 Without limiting the effect of Sections 6.1 and 6.2 above, CONSULTANT
shall be entitled to use the concepts of general application contained
in the Results (but not those specifically applicable to the Project)
for other projects and may produce and keep copies of the Results for
archival purposes, subject to the CONSULTANTS confidentiality and
other obligations hereunder.
Article 7 - Confidentiality
7.1 All information provided by SIEMENS to the CONSULTANT as well as any
advice, data and information including but not limited to the Results
developed by the CONSULTANT under this Agreement (hereinafter referred
to as "Confidential Information") shall be treated by the CONSULTANT
as confidential and shall not be disclosed by the CONSULTANT to a
third party or published without the prior written consent of SIEMENS.
CONSULTANT will limit the disclosure of Confidential Information to
those of its employees who have a reasonable need to know that
Confidential Information for the performance of this Agreement and who
shall be bound to confidentiality by their employment agreements or
otherwise.
7.2 The obligations as per Section 7.1 above shall not apply, however, to
any information which:
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(a) CONSULTANT can demonstrate, is already in the public domain or
becomes available to the public through no breach by CONSULTANT
of this Agreement;
(b) was rightfully in CONSULTANT'S possession without confidentiality
obligation prior to receipt from SIEMENS as proved by CONSULTANT'
written records;
(c) can be proved to have been rightfully received by CONSULTANT from
a third party without confidentiality obligation;
(d) is independently developed by CONSULTANT as proved by its written
records.
(e) is required to be disclosed by law or the rules of any
governmental organisation.
7.3 This Article 7 shall survive any termination or expiration of this
Agreement.
Article 8 - Force Majeure
8.1 Neither Party shall be liable to the other for failure or delay in the
performance of any of its obligations under this Agreement for the
time and to the extent such failure or delay is caused by force
majeure such as, but not limited to, riots, civil commotion's, wars,
strikes, lock-outs, hostilities between nations, governmental laws,
orders or regulations, actions by the government or any agency
thereof, storms, fires, sabotages, explosions or any other
contingencies beyond the reasonable control of the respective Party
(hereinafter referred to as "Force Majeure"). In such events, the
affected Party shall immediately inform the other Party of such
circumstances together with documents of proof and the performance of
obligations hereunder shall be suspended during, but not longer
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than, the period of existence of such cause and the period reasonably
required to perform the obligations in such cases.
8.2 Should circumstances of Force Majeure uninterruptedly continue for a
period of more than3months,then either Party has the right to
forthwith terminate this Agreement by registered letter Upon notice of
its intention to terminate the Agreement which notice has to be given
not later than fourteen days prior to the intended date of termination
of the Agreement. The Parties may also negotiate for a reasonable
extension or adjustment of this Agreement.
Should the Agreement be terminated according to this Section 8.2 the
CONSULTANT is entitled to the payment which has become due up and
until the date of termination.
Article 9 - Term and Termination
9.1 This Agreement becomes effective with its execution by both Parties.
9.2 Either party shall have the right to terminate this Agreement by
providing three calendar months notice to the other. Should the
Agreement be terminated according to this Section 9.2 the CONSULTANT
is entitled to the payment which has become due up and until the date
of termination.
Article 10 - Substantive Law
All disputes shall be settled in accordance with the provisions of
this Agreement and its Annexes and all other agreements regarding its
performance, otherwise in accordance with the substantive law in force
in the Federal Republic of Germany without reference to other laws.
The United Nations Convention on Contracts for the International Sale
of Goods of April 11, 1980 shall not apply.
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Article 11 - Arbitration
11.1 Any differences or disputes arising out of or in connection with this
Agreement or out of or in connection with agreements regarding its
performance, including any questions regarding the existence, validity
or termination of this Agreement or agreements regarding its
performance, during the term of this Agreement or thereafter shall be
settled by an amicable effort on the part of both Parties hereto. An
attempt to arrive at a settlement shall be deemed to have failed as
soon as one of the Parties so notifies the other Party in writing.
11.2 If an attempt at settlement has failed, the dispute shall be finally
settled under the Rules of Conciliation and Arbitration of the
International Chamber of Commerce in Paris (Rules) by three
arbitrators appointed in accordance with the Rules.
11.3 The place of arbitration shall be Munchen, Federal Republic of
Germany. The procedural law of this place shall apply where the Rules
are silent.
11.4 The arbitral award shall be substantiated in writing. The arbitral
tribunal shall also decide on the matter of costs of the arbitration.
11.5 The arbitration procedure shall be conducted in the English language.
Article 12 - Miscellaneous
12.1 All changes and amendments to this Agreement must be in writing to be
valid. This requirement of written form can only be waived in writing.
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12.2 Notices and communications between the CONSULTANT and SIEMENS shall be
given in writing or by facsimile in the English language to the
following addresses of the Parties or to such other address as the
Party concerned may subsequently notify in writing to the other Party:
If to the CONSULTANT to: Wireless Facilities Inc.
[***]
Director Sales and Marketing
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇
Tel.: +1 (619) 824 2929 ext. 25
Fax: ▇▇ (▇▇▇) ▇▇▇ ▇▇▇▇
If to SIEMENS to: SIEMENS Aktiengesellschaft
[***]
ON MN VN14
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Tel.: +49/89/▇▇▇-▇▇▇▇▇
Fax: +49/89/▇▇▇-▇▇▇▇▇
12.3 Neither Party shall assign its rights nor delegate performance of its
obligations under this Agreement to any third party without the prior
written consent of the other Party and any attempted assignment
without this consent shall be null and void.
12.4 Should individual provisions of this Agreement be legally ineffective
or unfeasible for legal reasons then, unless the basic intentions of
the Parties under this Agreement are substantially jeopardized, the
validity of the remaining provisions of this Agreement shall not be
affected thereby. In such a case the Parties shall come to an
agreement approximating as closely as possible the arrangement
originally envisaged in this Agreement.
* Confidential Treatment Requested
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12.5 A waiver of any default by either Party of any of the terms and
conditions of this Agreement shall not be deemed to be a continuing
waiver or a waiver of any other provisions of this Agreement, but
shall apply solely to the instances to which such waiver is granted.
In Witness Whereof, the Parties hereto have caused these presents to be executed
in duplicate by the respective representatives thereunto duly authorized, on the
dates below and shall keep one executed copy each.
San Diego, Munchen,
Wireless Facilities Incorporated Siemens Aktiengesellschaft
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ illegible signature
▇▇▇▇▇▇ ▇. Yayebi illegible
President
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Appendix 1
List of cities/regions, where a additional ▇▇▇▇-up concerning the charges listed
in (S)5.1 may be mutually agreed on a per project basis:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
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