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EXHIBIT 10.1
Confidential: Use or disclosure of this document is subject to the restriction
on the Confidentiality Statement.
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] [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:
--------------------------------
(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.
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 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 [ * ]
shall occur and be evidenced by a notice signed by Customer when
Conditional Acceptance and substantially all Punchlist items have been
resolved.
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.
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, [ * ] above with respect to the System.
For Expansion Product, Equipment or Software purchased without
Installation and Integration Services, [ * ] and such Expansion Product,
Equipment or Software [ * ]. Motorola will warrant the functional
operation of Equipment and Software [ * ] so long as such Equipment and
Software is installed by the Customer [ * ].
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.
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.
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.
FIXED NETWORK EQUIPMENT - FNE
"FNE" shall mean Motorola U.S. supplied Equipment integral to the iDEN
System, including the following major components: [ * ].
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
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.
including termination facilities such as protected termination blocks,
end office termination repeaters and Channel Service Units to permit
direct connection to the System.
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.
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.
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.
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.
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 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.
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 prices
for goods and services set forth in the Price Book are set forth
in [ * ] 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:
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.
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.
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.
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.
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.
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
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.
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 [ * ] upon shipment, 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.
(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
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.
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"):
(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.
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.
(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 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.
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.
3.3 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] 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.
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 [ * ], provided that such forecasts shall not
constitute commitments to purchase
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.
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.
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
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.
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.
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.
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.
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.
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
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.
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 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 [ * ] 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
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.
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 [ * ] 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 [ * ] 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]
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]
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.
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, [ * ] 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:
[ * ]
6.3 Prices Generally
[ * ]
6.4 [Intentionally Omitted]
6.5 [Intentionally Omitted]
6.6 Security Interest
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,
[ * ].
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.
6.9 Additional Assurance Payment Terms
Payment for equipment and services to Motorola requiring
Additional Assurance shall be made in [ * ] either by
wire/telegraphic transfer in advance or through the medium of a
[ * ] Letter of Credit[ * ].
6.9.1 Letter of Credit Terms
At least [ * ] before the first shipment of equipment
under Section 6.9, Customer shall issue a[ * ] 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:
[ * ]
In the event Customer does not proceed with its payment
obligations under this Agreement in a timely manner, and
such failure continues for [ * ] 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.
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.
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 [ * ] 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 [ * ].
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
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.
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 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
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.
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. "▇▇▇▇ 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.
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.
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
[ * ]. 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]
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,
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.
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.
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.
(4) Motorola shall notify Customer of any change
that materially affects performance of the
Equipment.
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.
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.
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 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.
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.
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 (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
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.
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.
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;
Motorola/Nextel International/ 30 Installation Services Agreement
[See Schedule Item 3]
* 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.
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
[ * ] 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 [ * ] 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.
Motorola/Nextel International/ 31 Installation Services Agreement
[See Schedule Item 3]
* 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.
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.
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
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.
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;
22.14 Purchase Orders and duly executed Change Orders thereto, with
the latest Change Order taking precedence over earlier Change
Orders;
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.
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
[ * ]
23.1.2 Nextel International shall receive notices as follows:
Nextel International, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: V. P. Operations
[ * ]
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.
With a copy to:
Nextel International, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel's Office
[ * ]
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
[ * ]
With a copy to:
Motorola, Inc.
Network Solutions Sector
Customer Commercial Relations
North American Region
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Director, Contracts and Regulatory
[ * ]
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.
Motorola/Nextel International/ 35 Installation Services Agreement
[See Schedule Item 3]
* 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.
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
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;
Motorola/Nextel International/ 36 Installation Services Agreement
[See Schedule Item 3]
* 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.
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 [ * ]
unless an Exhibit provides otherwise.
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
Motorola/Nextel International/ 37 Installation Services Agreement
[See Schedule Item 3]
* 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.
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.
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.
Motorola/Nextel International/ 38 Installation Services Agreement
[See Schedule Item 3]
* 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
Confidential: Use or disclosure of this document is subject to the restriction
on the Confidentiality Statement.
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
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
Motorola/Nextel International/
[See Schedule Item 3] 39 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.
40
Confidential: Use or disclosure of this document is subject to the restriction
on the Confidentiality Statement.
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.
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 1]
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇ [See Schedule Item 5]
------------------------------------
(Authorized Signatory)
Name ▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Title: Senior Corporate Vice President Title: President
------------------------------------ ---------------------------------------
NEXTEL INTERNATIONAL, INC.
By: By: /s/ Lo van Gemert
------------------------------------ ---------------------------------------
(Authorized Signatory)
Name Name Lo van Gemert
------------------------------------ ---------------------------------------
Title: Title: President
------------------------------------ ---------------------------------------
Motorola/Nextel International/
[See Schedule Item 3] 40 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.
41
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/ 41 Installation Services Agreement
[See Schedule Item 3]
* 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
Agreement Schedule
iDEN(R) Infrastructure Installation Services 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.
▇. ▇▇▇▇(R) 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: ▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ (▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇),
------------------------- Argentina
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: ▇▇▇▇ ▇▇▇▇▇▇
▇. ▇▇▇▇ 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: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇, ▇(▇)▇▇▇▇▇.
------------------------ City 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
▇. ▇▇▇▇ 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 (▇▇▇) ▇▇▇ ▇▇▇▇
------------
▇. ▇▇▇▇ 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/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------- ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇. ▇▇▇▇ Infrastructure Equipment Supply Agreement by and among Nextel
International, Inc, Motorola, Inc. and Nextel Communications Philippines,
Inc. exectued August 14, 2000.
Item 1 -- Entity Name: Nextel Communications Philippines, Inc.
-----------------------
Item 2 -- Local Address: at ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Avenue, Pasig
------------------------ City, Philippines 1605,
Item 3 -- Country: Philippines
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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
* 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.