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EXHIBIT 10.1
VOLUME PURCHASE AGREEMENT
This agreement ("AGREEMENT") dated September 29, 2000 ("EFFECTIVE DATE") between
GLENAYRE ELECTRONICS, INC., a Colorado corporation with its principal offices at
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ("GEI") and
WebLink Wireless, Inc, a Delaware corporation, ("CUSTOMER") with its principal
offices at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, consists of the General Terms and
Conditions ("GTC") below and the following exhibits ("EXHIBITS"): A -
Definitions; B - Software for Capacity Enhancement on WebLink's ReFLEX Network;
C - Training; D - Payment Instructions; E - Software License; F - Warranty; and
G - Software Commitments
GENERAL TERMS AND CONDITIONS
GEI manufactures or supplies paging terminals, radio transmitters and various
other products and provides certain services related to the design,
installation, maintenance and support of the products. Customer desires to
purchase certain of those products. GEI is willing to sell certain products at a
discount from their standard price in exchange for Customer's assistance in
testing of the products and software and volume commitment, provided Customer
purchases sufficient quantities of those products in order for GEI to
manufacture those products at reduced costs through economies of scale, such as
lower costs of components, greater efficiency of production and improved
long-term planning. Customer will provide GEI periodic forecasts of Customer's
product purchases to enable GEI to achieve economies of scale and to meet
Customer's desired delivery schedule.
In consideration of the covenants and promises in the Agreement, Customer and
GEI agree as follows:
1. DEFINITIONS AND CONFLICTS. Capitalized terms used in this Agreement and
not defined within have the meanings set forth in Exhibit A. The GTC
and the Exhibits are integral parts of the Agreement. In the event of
an unavoidable conflict between the GTC and the terms in any Exhibit,
the terms in the Exhibit shall control.
2. PURCHASE OF EQUIPMENT AND SERVICES AND LICENSING OF SOFTWARE.
2.1. During the Term and in accordance with the terms and
conditions of the Agreement, GEI agrees to sell Equipment and
Services and to license Software to Customer. All such items
that may be purchased or licensed by Customer are listed in
GEI's Equipment and Software current price book that may be
modified from time to time by GEI in its reasonable
discretion, or in Exhibit B (Software for Capacity Enhancement
on WebLink's ReFLEX Network). GEI will provide Customer with
the most current price book upon request by Customer. For each
item of Software supplied to Customer by GEI, GEI grants to
Customer the licenses set forth in Exhibit E (Software
License) subject to the terms and conditions also set forth
therein. GEI has made additional Software commitments to
Customer as set forth in Exhibit H (Software Commitments).
2.2. Customer agrees to purchase Equipment and Services and to
license the Software by issuing signed purchase orders
itemizing the description, price, quantity (including number
of users or ports, if applicable, for Software licenses),
Designated System (if applicable), Customer Premises, Site
location, "ship-to" location, any additional locations as
required in Section 4.7 herein, and proposed delivery time for
each item of Equipment, Software or Service ordered. All
purchase orders shall indicate that items are purchased or
licensed pursuant to the terms and conditions of this Volume
Purchase Agreement Contract #6706 dated September 29, 2000.
GEI shall acknowledge and accept the purchase order by signing
an order acknowledgement. All orders shall be governed by the
terms and conditions of this Agreement. Any provision in a
purchase order that conflicts with or attempts to modify this
Agreement shall have no effect. Neither party is obligated to
notify the other party that such terms and conditions do not
apply. Any
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modification to a term as set forth in this Agreement must be
agreed to, in a separate writing, signed by each party's
authorized personnel.
2.3. Enterprise-wide License. During the Term and in accordance
with, and subject to, the terms and conditions of the
Agreement, Customer agrees to purchase and GEI agrees to
grant:
(1) an Enterprise-wide license for Capacity Enhancement
Channels (ReFLEX25 2.7) pursuant to the terms of
Exhibit E (Software License) which shall survive the
expiration of this Agreement and continue in effect
only for so long as the Software License associated
with the Capacity Enhancement Channels continues. The
marginal cost of additional capacity enhancement
channels will be ******; provided, however, Customer
acknowledges and agrees that this enterprise-wide
license applies only to ****** provided to Customer
and that Customer shall pay hardware costs
(transmitters, receivers, etc.) and other software
charges (GL3000 subscriber upgrades, RFD node charges
etc.) for any additional charges associated with the
use of Capacity Enhancement Channels at prices to be
mutually agreed upon by the parties,
and
(2) an Enterprise-wide license for Landing Strip Channels
pursuant to the terms of Exhibit E (Software License)
which shall survive the expiration of this Agreement
and continue in effect only for so long as the
Software License associated with the Landing Strip
Channels continues. Customer acknowledges and agrees
that this enterprise-wide license applies only to
****** and that Customer shall pay hardware costs and
other software charges for any additional charges
associated with use of Landing Strip Channels at
prices to be mutually agreed upon by the parties.
****** During the Term, Customer shall be allowed to purchase
additional licenses for the prices included in this Agreement.
2.4. For a fee agreed upon in advance, GEI, at Customer's request,
shall reconfigure the Equipment or Software.
2.5. Delay or Cancellation of Order and Early Shipments.
(a) Delay of Order. At no charge to Customer, GEI shall
permit Customer to request a one time delay of all or
any part of a purchase order for Equipment, Software
or Services for no greater than 30 days from its
originally scheduled shipment date. If Customer
requests delay for the same Equipment, Services or
Software more than one time or the requested delay
date exceeds 30 days from its originally scheduled
shipment date, then the request shall be treated as a
cancellation and shall be subject to the terms and
conditions of Section 2.5(b). If Customer requests
such one-time delay, any associated shipment dates
for the items delayed, including those shipment dates
with penalties attached to them pursuant to Section
3.2 below, shall be extended to reflect the number of
days delayed.
(b) Cancellation of Order.
(i) Early Cancellation. At no charge to
Customer, GEI shall permit Customer to
cancel all or part of a purchase order for
Equipment, Software or Services, provided
(a) Customer requests such cancellation in
writing, (b) GEI receives the written
cancellation request at least ninety (90)
days prior to the scheduled shipping date;
and (c) GEI receives such written
cancellation request by Customer no greater
than thirty (30) days from the date GEI
received the purchase order which is being
partially or fully canceled by Customer's
cancellation request.
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(ii) Late Cancellation. If Customer fails to
comply with the requirements set forth in
Subsection 2.5(b)(i), GEI shall charge and
Customer agrees to pay a restocking fee of
fifteen percent (15%) of the price of all
Equipment, Services or Software that is
canceled, plus all costs incurred by GEI due
to GEI's return of (or inability to return)
Equipment or Software supplied by third
party vendors.
(c) Early Shipments. Customer acknowledges and agrees
that GEI may ship an order up to ten (10) days in
advance of the proposed shipment date.
3. SHIPMENT AND DELIVERY.
3.1. Shipment. GEI shall (a) arrange shipping and insurance and
shall ▇▇▇▇ Customer separately for the cost of such items and
(b) ship each item of the Equipment and Software FOB GEI's
location that supplied or assembled the Equipment or Software.
Delivery, for purposes of this Agreement, including, without
limitation, Section 3.2 below, shall be deemed to have
occurred when the Equipment or Software is received by the
carrier pursuant to the FOB terms of this Section 3.1.
3.2. Penalties. If GEI fails to deliver the Software items
identified in sections (a) or (d) of Exhibit G pursuant to the
dates established in those respective sections, then GEI shall
pay Customer penalties in the amount of one thousand dollars
($1,000) per release (beta or commercial) per business day
that delivery is late, provided Customer has not caused the
delay. The total penalty for each Software item shall not
exceed ten percent (10%) of the purchase price for each
Software item. In no event shall the delivery of any other
Equipment or Software under this Agreement be subject to any
penalties. GEI shall pay penalties in the form of credits
applied against the amount owed by Customer for the purchase
of the Software giving rise to the penalty. These penalties
shall be Customer's sole and exclusive remedy as it relates to
GEI's obligations in this Section 3.2.
3.3. Acceptance. Acceptance of the Equipment and Software shall not
be unreasonably withheld and shall be deemed to have taken
place on the earliest to occur of: (a) thirty (30) days, plus
an additional four (4) days for shipment of the Equipment or
Software to Customer, have elapsed since the date of delivery
of the Equipment and Software pursuant to Article 3, without
Customer having given to GEI a written notice of a defect, or
(b) Customer notifies GEI in writing that Customer accepts the
Software, or (c) immediately upon Customer's commercial use of
the Software and Equipment in a fashion whereby Customer is or
would be entitled to receive any revenue from such use. If
Customer rejects the Software during the thirty (30) day
period after delivery of the Equipment and Software, it shall
provide written notice to GEI of the Defect in sufficient
detail to permit GEI to replicate the Defect, whereupon GEI
shall have thirty (30) days within which to remedy the Defect
and resubmit the Equipment and Software. Customer shall have a
fifteen (15) day period commencing on the date of such
resubmission within which to accept or reject the Software in
accordance with the procedures set forth above. If GEI cannot
resubmit the equipment or software within a reasonable time,
or if GEI cannot remedy the Defect after repeated efforts over
a period of at least sixty (60) days after the Equipment or
Software is resubmitted to Customer, then either party may
terminate that purchase order and the Equipment and Software
shall be returned; provided, however, Customer shall be deemed
to have purchased such Equipment and Software for purposes of
calculating Customer's volume commitment in Section 5.1. GEI
shall, within sixty (60) days upon return of the Equipment or
Software, (1) credit Customer's account, in the amount of any
purchase price actually paid, previously to GEI by Customer,
if Customer has any amounts owed to GEI; and, (2) if no
outstanding amounts are owed, then reimburse Customer for any
purchase price paid with respect to such Equipment or Software
rejected by Customer in accordance with the terms of this
Section 3.3. Upon return of the Equipment or Software and
payment of any related reimbursement, neither party shall bear
any further liability or obligation for such Equipment or
Software.
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3.4. Returns and Shortages
(a) Shortages. Customer shall make any claim for
shortages (items invoiced but not delivered) promptly
upon discovery. In no case shall Customer make such
claims later than thirty (30) days after the delivery
date.
(b) Returns for Non-Defective Items. Customer may return
non-defective Equipment or Software only if (i) the
shipment does not correspond to Customer's purchase
order or (ii) Customer orders the wrong Equipment or
Software and GEI agrees to exchange the delivered
Equipment or Software for different GEI equipment or
software. To return Equipment or Software, Customer
shall first obtain a return authorization, including
a tracking number and return address. Each item of
Equipment or Software being returned by Customer
shall have affixed to it a label showing the tracking
number of the return authorization. Customer shall
not return Equipment and Software under this
Subsection 3.4(b) unless the returned items are in
undamaged condition, in the original configuration,
and where appropriate, in the original packing.
Customer shall return Equipment or Software
authorized for return under this Subsection 3.4(b)
within thirty (30) days after the item is delivered.
GEI shall be responsible for shipping, insurance and
other expenses incurred in returning Equipment or
Software not corresponding to Customer's purchase
order; otherwise, Customer shall be responsible for
such charges.
(c) Credits. Provided Customer complies with the
requirements set forth in Subsection 3.4(b), GEI
shall issue credits for returned items by issuing
Customer a credit for the net sales price of the
returned Equipment or Software plus the original
shipping and insurance as shown on the applicable
invoice within sixty (60) days of the return of the
Equipment or Software. If Customer fails to comply
with the requirements set forth in Subsection 3.4(b),
GEI shall have no obligation to issue a credit for
non-defective returned Equipment or Software and
Customer shall pay the full invoice amount.
(d) Defective Equipment and Software. The return of
defective items supplied hereunder by GEI shall be in
accordance with such terms and conditions set forth
in the Warranty attached hereto as Exhibit F.
4. PRICES AND PAYMENT TERMS.
4.1. License Fees. In consideration of the undertakings of GEI and
the licenses granted herein, GEI agrees to invoice Customer
and Customer agrees to pay to GEI the license fees for the
Software in the amounts and at the times specified in this
Agreement, unless other financing arrangements have been
agreed upon and signed in writing by GEI and Customer. The
current prices for Software licenses are indicated on Exhibit
B; however, subject to the provisions of Section 5.4 herein
GEI reserves the right to modify GEI's prices for such items
at any time and from time to time without notice. GEI will
provide Customer with the most current price book upon
request.
4.2. Equipment. In consideration of the sale of the Equipment (if
any) by GEI under this Agreement, GEI agrees to invoice
Customer and Customer agrees to pay to GEI the fees for the
Equipment determined in accordance with this Agreement, unless
other financing arrangements have been agreed upon and signed
in writing by GEI and Customer. The current prices for items
of Equipment are indicated in the Equipment and Software price
book; however, subject to the provisions of Section 5.4
herein, GEI reserves the right to modify GEI's prices for such
items at any time and from time to time without notice. GEI
will provide Customer with the most current price book upon
request.
4.3. Customization Fees. If Customer requests GEI to customize the
Equipment or Software, then Customer and GEI shall enter into
a separate agreement which sets forth the terms, conditions
and pricing related to such customization. Unless otherwise
provided in an agreement signed by a GEI officer, GEI shall
solely own all intellectual property rights to all
customization of the Equipment or Software, except, if
applicable, the customization shall be licensed in accordance
with the Software License. For avoidance of doubt, GEI shall
have no ownership interest in third party equipment as
provided to GEI by Customer.
4.4. Payment Terms.
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******
4.5 Payment Dispute Process. If Customer disputes any invoice
amount in good faith, then Customer shall do the following
("PAYMENT DISPUTE PROCEDURE") within thirty (30) days of
Customer's receipt of such invoice: (a) pay GEI the undisputed
amount of the invoice; and (b) provide GEI's Credit Department
a detailed written description of the disputed amount and the
basis for Customer's dispute with such amount. GEI may charge
a service fee equal to the lesser of (i) one and one half
percent (1-1/2%) per month or (ii) the highest interest rate
legally permitted on any unpaid amounts, unless such amounts
are ultimately determined not due in accordance with the
Payment Dispute Procedure. Customer shall cooperate with GEI
in resolving disputed invoice amounts and then promptly paying
amounts due, if any. Customer shall reimburse GEI for all
reasonable collection expenses. If Customer fails to follow
the Payment Dispute Process as set forth in this Section 4.5
for any invoice, then such invoice shall be considered an
undisputed invoice.
4.6 Taxes. Prices represented herein and on all notifications
issued by GEI pursuant to this Agreement are exclusive of all
government excise, sales, service, use, occupational, or like
taxes and, accordingly, are subject to an increase equal in
amount to any tax GEI may be required to collect or pay upon
the licensing, delivery or installation of the Equipment,
Software or Services provided hereunder. Unless Customer
provides GEI with a valid resale exemption certificate prior
to shipment of the Equipment or Software or the performance of
the Service, Customer is responsible for payment of any taxes
resulting from or imposed upon this Agreement, the Software or
the Equipment delivered hereunder, except taxes based on GEI's
net income.
4.7 Security Interest. Intentionally Deleted.
4.8 Credit Facility. The Parties agree that only the Purchase
Orders received by GEI after June 13, 2000 and before August
1, 2000, which indicated that payment terms were subject to
this Agreement, shall be financed under the Promissory Note
and Security Agreement between the parties (dated March 21,
1997) ("Promissory Note"). In no event shall the aggregate
amount of the Purchase Orders to be financed pursuant to the
Promissory Note exceed ten million dollars ($10,000,000).
5. PRICING AND COMMITMENTS.
5.1 Volume Commitment. Customer agrees to purchase or license from
GEI a minimum amount of Equipment and Software in the
quantities and time frame as detailed in the table below:
******
5.2 Volume Purchase Discount. Provided Customer is not delinquent
on any of its obligations under the Agreement at the time of
shipping an order, unless in dispute pursuant to Section 4.5
(Payment Dispute Process) herein, GEI shall give Customer a
discount off the price of GEI-manufactured infrastructure
Equipment and GEI-owned Software. For the 2001 calendar year
(January 1, 2001 - December 31, 2001), . For the 2001 calendar
year (January 1, 2001 - December 31, 2001), the amount of the
discount shall be determined based upon the ******. Beginning
January 1, 2002(and on January 1st for each renewal year
thereafter), the amount of the discount offered to Customer
for the subsequent calendar year shall be based upon Customer
submitting to GEI a twelve-month "good faith" forecast of
purchase volume for that year for purchases of all GEI
manufactured or distributed equipment or software by Customer.
After an evaluation by both Parties of the probable purchase
volumes forecast by Customer, GEI shall provide the applicable
discount rate to Customer per the chart below. Additionally,
on or before the first working day of each calendar quarter,
Customer shall provide GEI with a "good faith" forecast of
purchase volume during the next six-month period. Customer
shall promptly provide GEI with revised "good faith" forecasts
upon the reasonable conclusion by either party that
adjustments are necessary to the prior forecast provided to
GEI. Promptly at the end of each
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calendar year or the Term (if applicable) (but within thirty
(30) days after the end of the calendar year, the parties
shall "settle up" with each other. If Customer did not
purchase and pay at the purchase volume levels forecast for
that preceding calendar year which would have resulted in
Customer obtaining a lesser discount level, Customer shall owe
to GEI a Recapture Amount, which shall be equal to the
difference between the prices charged by GEI to Customer based
on Customer's forecast and the prices GEI would have charged
Customer based on actual purchase volume for the year. If
Customer purchases and pays for more than the purchase volume
forecast for the year and Customer would have been eligible
for a higher discount level, GEI shall owe to Customer a
Volume Credit, which shall be equal to the difference between
the prices Customer was charged and the applicable higher
discount level.. GEI shall pay the Volume Credit to Customer,
or Customer shall pay the Recapture Amount to GEI, as the case
may be, by adjusting the current year's discount level (based
on the forecast in accordance with the process described
above) by applying the highest discount level (if GEI owes
Customer a Volume Credit) or the lowest discount level (if
Customer owes GEI a Recapture Amount) provided for in the
Purchase Discount level listed in the table below, until GEI
has been paid the entire Recapture Amount or has paid the
entire Volume Credit, as the case may be. Customer shall be
responsible for issuing purchase orders or amending
previously-issued purchase orders to reflect the Recapture
Amount or Volume Credit adjustments discussed in the preceding
sentence. For avoidance of doubt, the party owing the
Recapture Amount or Volume Credit payable under this
Agreement, as the case may be, shall immediately pay in full
to the other party such amount upon the termination or
expiration of this Agreement; provided, however, GEI may set
off against any other monies owed by Customer to GEI.
The following tables sets forth the volume purchase levels and
the applicable discounts available depending on the year in
which the Equipment is invoiced:
For Equipment invoiced on or before 12/31/2000, the discount
shall be as follows:
******
For Equipment shipped on or after 01/01/2001 the Volume
discount shall be as follows:
******
5.3 ******
5.4 ******
6. TRAINING AND SUPPORT.
6.1 Training. Upon Customer's request and payment of the
applicable fees, GEI shall provide the training services
requested by Customer at a mutually agreeable location and
time. Training classes and pricing are attached as Exhibit "C"
to this Agreement. Training class fee paid by Customer to GEI,
including, without limitation, those fees paid by Customer to
GEI related to the Trainer Qualification Program, shall
contribute to the Volume Purchase requirements of Customer.
6.2 Maintenance and Support.
a) GEI will provide Customer with warranty Defect
support, subject to and in accordance with the terms
and procedures set forth in Exhibit F (Warranty) for
the Warranty Period. If Customer desires additional
support, Customer shall enter into GEI's standard
maintenance agreement, as in effect from time to time
(the "MAINTENANCE AGREEMENT"). Customer acknowledges
that if the parties are unable to reach accord on the
terms and provisions of the Maintenance Agreement,
then Customer shall be responsible for all such
maintenance and support except as set forth
specifically in this Agreement for warranty Defects.
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b) Notwithstanding Section 6.2(a) above, in
consideration for the Software Enterprise-wide
licenses purchased by Customer pursuant to Section
2.3 above, GEI shall provide software maintenance,
limited to annual maintenance releases and bug fixes,
and telephone support on the Radio Frequency Director
(RFD) ******, at no charge to Customer. For the
avoidance of doubt, such "no charge" maintenance
shall not include Software Feature Keys or additional
functionality not previously licensed by Customer.
******, GEI shall offer Customer, as mutually agreed
upon in a separate agreement, ongoing maintenance and
support on the Equipment and Software at the then
published rate. The maximum annual increase in GEI's
published list price for Glenayre Care maintenance
provided in accordance with GEI's then standard terms
and conditions shall be ******
6.3 Reimbursement of Expenses. Customer shall reimburse GEI for
all reasonable expenses, unless these expenses are in dispute
pursuant to Section 4.5 (Payment Dispute Process) herein,
incurred by GEI in providing training and support services
beyond those described in this Article 6 as "no charge" items,
as invoiced by GEI.
7. LIMITED WARRANTY; LIMITATION ON REMEDIES.
7.1 Subject to the terms and conditions of the Agreement, the
Software and Equipment is warranted in accordance with the
terms and conditions set forth in Exhibit F (Warranty). GEI
does not represent or warrant that Customer's use of the items
provided hereunder by GEI shall be uninterrupted or error-free
or that all program defects in the Software shall be
corrected.
7.2 Limitations; Remedies. GEI's entire liability and Customer's
exclusive remedy as to Defects, or any other performance or
nonperformance by GEI of its obligations hereunder shall be
the warranties and remedies as set forth in this Article 7,
regardless of the theory of claim or form of action. THE
WARRANTIES MADE IN SECTION 7.1 ARE THE ONLY WARRANTIES OF ANY
KIND, EITHER EXPRESS OR IMPLIED, THAT ARE MADE BY GEI, AND GEI
DISCLAIMS ALL OTHER WARRANTIES INCLUDING, BUT NOT LIMITED TO,
ANY WARRANTY OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT OR
FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SOFTWARE,
THE EQUIPMENT OR ANY OTHER ITEMS OR SERVICES PROVIDED
HEREUNDER. NEITHER GEI NOR ANYONE ELSE WHO HAS BEEN INVOLVED
IN THE CREATION, PRODUCTION OR DELIVERY OF EQUIPMENT, SOFTWARE
OR SERVICES PROVIDED HEREUNDER SHALL BE LIABLE FOR DAMAGES
ARISING FROM ANY MODIFICATIONS MADE BY CUSTOMER OR ANY THIRD
PARTY.
7.3 NO OTHER DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN
NO EVENT SHALL GEI OR CUSTOMER OR ANYONE ELSE WHO HAS BEEN
INVOLVED IN THE CREATION, PRODUCTION OR DELIVERY OF EQUIPMENT,
SOFTWARE OR SERVICES PROVIDED HEREUNDER BE LIABLE TO THE OTHER
PARTY OR ANY THIRD PARTY FOR INDIRECT, CONSEQUENTIAL, SPECIAL,
PUNITIVE OR INCIDENTAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF
BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS
INFORMATION, AND THE LIKE) ARISING FROM OR RELATED TO THE
DELIVERY, USE OR PERFORMANCE OF THE EQUIPMENT OR SOFTWARE OR
THIS AGREEMENT REGARDLESS OF TYPE OF CLAIM, WHETHER IN
CONTRACT, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE
THEORY, WHETHER SUCH PARTY OR ITS AGENTS HAVE BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES.
7.4 IN NO CASE SHALL GEI'S AGGREGATE LIABILITY FOR ALL MATTERS
ARISING OUT OF THE SUBJECT MATTER OF THIS AGREEMENT, WHETHER
IN CONTRACT, TORT OR OTHERWISE, EXCEED THE LESSER OF (1) THE
AMOUNT ACTUALLY RECEIVED BY GEI UNDER THIS AGREEMENT FOR THE
TWELVE (12)
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MONTHS PRIOR TO THE CLAIM OF DAMAGE OR LOSS OR (2) FIVE
MILLION DOLLARS ($5,000,000).
7.5 Customer acknowledges that the limitations of liability and
remedies set forth herein represent bargained-for allocations
of risk, and GEI's prices reflect the allocations of such
risk. However, if any one or more of such restrictions shall
either taken by itself or themselves together be adjudged to
go beyond what is reasonable in all the circumstances but
would be adjudged reasonable if any particular restriction or
restrictions were deleted or if any parts of the working
thereof were deleted, restricted or limited in a particular
manner then the said restrictions shall apply with such
deletions, restrictions or limitations as the case may be.
8. INDEMNIFICATION.
8.1 Infringement.
(a) Defense. In the event of any claim or allegation
against Customer of infringement or misappropriation
of United States patent, copyright, trade secret, or
mask work rights by reason of the use by Customer of
the GEI-manufactured Equipment or GEI-owned Software
as permitted hereunder and provided that Customer
provides GEI prompt and timely written notice of the
claim or allegation, GEI will, at its expense, defend
such claim, and pay any costs, expenses and damages
actually awarded in connection therewith, including
the fees and expenses of the attorneys engaged by GEI
for such defense. GEI shall have the sole and
exclusive authority to defend and/or settle any such
claim or action. For purposes of Sections 8.1 (and
all subsections) and 8.2 (and all subsections)
herein, "GEI-manufactured Equipment" and "GEI-owned
Software" specifically excludes any third party
Equipment or Software. However, GEI agrees to
cooperate and assist Customer in defending third
party infringement claims against Customer that may
arise under this Agreement, but Customer shall be
solely responsible for its own defense costs and any
damages awarded or incurred as a result of such third
party infringement claims.
(b) Certain Actions in Response to Infringement. Upon
GEI's sole determination, or if use of any
GEI-manufactured Equipment or GEI-owned Software is
prohibited, GEI, at its election shall, at its own
cost and expense, either (a) procure for Customer the
right to continue the use of such GEI-manufactured
Equipment or GEI-owned Software; (b) modify the
GEI-manufactured Equipment or GEI-owned Software, in
such a way that the use thereof does not infringe
upon the rights of third parties; but has similar
functionality; or (c) terminate this Agreement by
notice to Customer and refund to Customer the a
pro-rata amount of the license fees paid by Customer
for the infringing (or potentially infringing)
GEI-manufactured Equipment or GEI-owned Software,
based on a 5-year amortization schedule.
8.2 LIMITATION OF INDEMNIFICATION FOR GEI.
(a) No Liability. GEI shall have no liability or
obligation hereunder with respect to any infringement
claim (or defense thereof) if such infringement is
caused by (i) compliance with designs, guidelines,
plans or specifications of Customer or any third
party (including, without limitation, any customized
version GEI-manufactured Equipment or GEI-owned
Software); (ii) a modification made by any party
other than GEI; (iii) use of GEI-manufactured
Equipment or GEI-owned Software in an application or
environment other than as specified in the
Documentation; (iv) use of a non-current version if
the current version is non-infringing; or (v) the
combination, operation or use of any GEI-manufactured
Equipment or GEI-owned Software with other product(s)
not supplied by GEI. Customer agrees to indemnify and
hold harmless GEI from and against all liabilities,
obligations, costs, expenses and judgments, including
court costs, reasonable
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attorneys fees and expert fees, arising out of any of
the circumstances stated in this Paragraph 8.2(a).
(b) ENTIRE LIABILITY. THIS ARTICLE 8 STATES GEI'S ENTIRE
LIABILITY AND OBLIGATION, WHETHER STATUTORY,
CONTRACTUAL, EXPRESS, IMPLIED OR OTHERWISE, FOR
CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT. THE
INDEMNIFICATION PROVIDED IN THIS ARTICLE 8 SHALL NOT
BE LIMITED BY THE TERMS OF ARTICLE 7 HEREUNDER.
8.3 By Customer. Except where GEI is obligated to indemnify
Customer under Section 8.1, and without limiting any other
obligation of Customer to indemnify GEI hereunder, (i)
Customer shall indemnify, defend and hold GEI harmless from
any and all claims, damages, losses, liabilities, costs and
expenses (including reasonable attorney's fees) arising out of
or in connection with Customer's use of the items supplied
hereunder by GEI and (ii) Customer shall have the sole and
exclusive authority to defend and/or settle any such claim or
action.
9. OWNERSHIP RIGHTS.
9.1 Ownership. Except as explicitly provided otherwise in this
Agreement, all right, title and interest, including all
copyright, trademark, trade secret and patent rights in the
Software, Equipment, Documentation and any other items
supplied by GEI under this Agreement shall be owned
exclusively by GEI or its third-party licensors or suppliers.
9.2 No Decompilation. Customer shall not decode, reverse engineer,
reprint, transcribe or reproduce, in whole or in part, any
Software or Documentation supplied under this Agreement for
any reason, including, but not limited to, in an attempt to
obtain the source code of any Software supplied by GEI to
Customer.
10. CONFIDENTIAL INFORMATION.
10.1 Confidentiality. Customer and GEI shall each safeguard the
other's Confidential Information in the same manner as it
safeguards its own valuable Confidential Information. The
parties each agree that the amount of license or other fees
payable hereunder, and the payment terms, shall be deemed
Confidential Information for purposes of this Article 10. Each
party acknowledges that the disclosing party's Confidential
Information constitutes such party's valuable Confidential
Information and trade secrets. Each party expressly agrees and
acknowledges that it is entering into this Agreement, and
providing the receiving party with copies of its Confidential
Information hereunder, in reliance upon the receiving party's
foregoing promise of confidentiality. Neither party shall use,
disclose, make or have made any copies of the disclosing
party's Confidential Information in whole or in part, except
as provided herein, without the prior express written
authorization of the disclosing party.
10.2 Exceptions. Any provisions herein concerning non-disclosure
and non-use of Confidential Information of the disclosing
party shall not apply to any such information which (a) is
already known to the receiving party when received; (b) is or
becomes publicly known through publication or otherwise and
through no wrongful act of the receiving party; (c) is
received from a third party without similar restriction and
without breach of this Agreement; (d) is approved for release
or use by written authorization of the disclosing party; or
(e) is required to be disclosed by law or order of a
regulatory or judicial authority, provided the disclosing
party is given a reasonable opportunity to seek a protective
order or similar judicial constraint.
10.3 Secure Handling. Customer shall require that the Software and
the Documentation be kept on Customer Premises and be
maintained in a manner so as to reasonably preclude
unauthorized persons from having access thereto.
10.4 Proprietary Legends. Customer shall not remove any copyright
notice or other proprietary or restrictive notice or legend
contained or included in any material provided by GEI, and
Customer shall reproduce and copy all such information on all
copies made hereunder.
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10.5 Obligations of Parties Having Access. Customer shall limit use
of and access to the Confidential Information to such Customer
Personnel as are directly involved in the operation or
maintenance of Customer Existing Equipment, Software or
Equipment.
11. TERM AND TERMINATION.
11.1 Term. This Agreement shall commence on the Effective Date and
continue until December 31, 2001, unless sooner terminated
pursuant to Section 12 ("TERM"). However, all the terms and
conditions of this Agreement shall also apply to all purchase
orders as identified in 14.2 below . Unless either party gives
the other party thirty (30) days written notice prior to
expiration of the then current Term, this Agreement shall
renew automatically for one (1) year periods ("Renewal Term")
at a maximum of two (2) consecutive automatic Renewal Terms.
If applicable, at the end of the second automatic Renewal
Term, this Agreement shall terminate, unless the parties
mutually agree in writing to extend the Agreement.
11.2 Term of the Licenses. The Licenses are effective upon delivery
and shall continue until the first to occur of the following:
(a) Customer attempts to assign, transfer or sublicense the
Software or the Documentation without GEI's prior written
consent; (b) Customer or a third party acting at Customer's
direction moves the Equipment or Customer Existing Equipment
or Software from Customer's Premises, unless GEI is notified;
(c) Customer sells the related Equipment without GEI's prior
written consent; or (d) Customer ceases to use the Software
with the Equipment or Customer's Existing Equipment. Upon
termination of the Licenses and at GEI's request, Customer
shall promptly return or destroy all Confidential Information.
If such is destroyed, Customer shall certify within ten (10)
days to GEI in writing that all Confidential Information has
been destroyed.
12. TERMINATION.
12.1 This Agreement shall be terminated:
(a) with the consent of both parties hereto;
(b) by GEI if Customer fails (i) to pay any amount due
under this Agreement in accordance with this
Agreement or (ii) to comply with any obligations
under the Software License, if Customer does not cure
the failure (if the failure can be cured) within five
(5) days after written notice from GEI, or under the
Warranty, if Customer does not cure the failure (if
the failure can be cured) within thirty (30) days
after written notice from GEI or (iii) to comply with
any obligation set forth in the Agreement, other than
those specified in Subsection 12.1(b)(I) or (ii), and
Customer does not cure the failure within thirty (30)
days after written notice from GEI;
(c) by Customer if GEI fails to comply with any material
obligation set forth in the Agreement, and GEI fails
to cure the failure within thirty (30) days after
written notice from Customer; or
(d) by either party, immediately, and without any notice
to the other party, if (i) a party makes an
assignment for the benefit of its creditors or admits
its insolvency or fails to pay its debts generally as
they become due, (ii) a proceeding is commenced by or
against such party for relief under any bankruptcy,
insolvency or other similar law, unless the
proceeding is commenced involuntarily against such
party and is dismissed within sixty (60) days after
the commencement, (iii) a receiver or trustee is
appointed for such party or any substantial part of
its assets and is not discharged within sixty (60)
days after the appointment; (iv) a proceeding is
instituted for the dissolution or the full or partial
liquidation of such party and is not dismissed or
discharged within sixty (60) days after
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the commencement; or (v) such party discontinues its
business,; or (vi) GEI discontinues its business as a
paging infrastructure manufacturer and seller.
12.2 Obligations on Termination. Upon any termination of this
Agreement, all copies of the Software and Documentation
supplied by GEI and all works in progress shall immediately be
delivered to GEI. All amounts payable by Customer shall be
immediately payable in full, unless otherwise agreed upon by
GEI and Customer. Termination of this Agreement shall not
affect the rights or liabilities for any amounts then
currently due under this Agreement for products and services
actually provided.
13. NOTICE. All notices, consents and requests under this Agreement shall
be in writing and shall be deemed to have been delivered and received
(i) on the date of personal delivery, (ii) three business days after
being mailed if by first class mail, (iii) on the next or second
business day after proper delivery to a commercial courier service that
guarantees delivery on the next or second business day (unless the
return receipt or the courier's records evidence a later delivery), or
(iv) on the date of receipt (if it is a business day, otherwise on the
next business day) by facsimile, in each case addressed as follows:
TO GEI: with a copy to:
Glenayre Electronics, Inc. Glenayre Electronics, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Senior Vice President Attention: Legal Department
Facsimile: ****** Facsimile: ******
For Payment Disputes
Glenayre Electronics, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Credit Department
Facsimile: ******
TO Customer: with a copy to:
WebLink Wireless, Inc. WebLink Wireless, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ Attention: Network Services, 12th Floor
Facsimile: ****** Facsimile: ******
14. MISCELLANEOUS.
14.1 Representations. Each party hereto represents and warrants
that this Agreement is valid and legally binding upon it and
enforceable in accordance with its terms. By submitting a
purchase order to GEI, Customer represents and warrants that
it (a) has the financial capability to pay the price and all
related charges for all items ordered and (b) shall maintain
that financial capability until that amount is fully paid. For
this purpose, "financial capability" means sufficient assets,
after deducting liabilities, to pay that amount without
becoming insolvent (as defined under any applicable law).
14.2 Termination of Existing VPA. The Parties hereby expressly
terminate the Volume Purchase Agreement between the Parties
with an effective date of December 31, 1997. All purchase
orders received by GEI on or after June 1, 2000, shall be
deemed to be controlled by the terms and conditions herein
this Agreement.
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14.3 Force Majeure. Neither party shall be responsible for delays
or failures in performance resulting from causes beyond the
control of such party, including without limitation, any act
of God, fire, casualty, delay or disruption in transportation,
flood, earthquake, war, strike, lockout, epidemic, destruction
or shut-down of production facilities, shortage or
curtailment, riot, insurrection, governmental acts or
directives, or financial requirements or manufacturing
limitations imposed by third-party manufacturers, suppliers,
or vendors.
14.4 Dispute Settlement. Except as otherwise provided in Section
14.3, if there is a dispute arising out of or related to this
Agreement, the parties shall (a) agree to negotiate in good
faith to settle the dispute in an amicable manner and (b) if
the parties are unable to agree within sixty (60) days of
dispute settlement discussions, the disputes arising out of or
in connection with this Agreement shall be referred to and
finally resolved by arbitration under the rules of the
American Arbitration Association in Atlanta, Georgia. The
language of arbitration shall be in English. The number of
arbitrators shall be one. Notwithstanding the preceding,
nothing herein in Section 14.3 shall restrict the right of
either party to apply to a court of competent jurisdiction for
a temporary restraining order, preliminary injunction, or
other equitable relief to preserve the status quo or prevent
irreparable harm, and for the right of GEI to bring suit in
federal court regarding violation of its copyright or other
proprietary rights.
14.5 Permits and Authorizations. Each party is solely responsible
for obtaining any government licenses and authorizations
required to operate its business and for complying with the
rules and regulations of the government and regulatory
agencies. Neither GEI nor any of its employees or agents are
an agent for, nor a representative of Customer in matters
pertaining to the rules and regulations of any such
governmental agency.
14.6 Export Provisions. Customer shall comply with all export laws
of the United States and Canada and agrees to not, whether
directly or indirectly (including facilitating a third party),
export or re-export any Equipment, Software, Documentation or
other GEI Confidential Information to any country in violation
of the laws of the United States or Canada. Customer agrees to
indemnify GEI against any liability incurred by GEI due to
Customer's violation of this Section 14.6.
14.7 Publicity. Each party shall obtain the other party's prior
written consent before issuing any press release or otherwise
making any public announcement concerning this Agreement.
14.8 Assignment. This Agreement shall not be assigned by either
party without the other party's advance written consent. This
Agreement shall be binding upon and inure to the benefit of
the parties, their successors and permitted assigns.
14.9 Survival. After expiration or termination of this Agreement,
all provisions relating to payment shall survive until
completion of required payments. In addition to those
provisions which specifically provide for survival beyond
expiration or termination, all provisions contained in this
Article 14 and all provisions, if any, regarding ownership,
indemnification, warranty, liability and limits thereon, and
confidentiality and/or protection of proprietary rights and
trade secrets shall survive indefinitely or until the
expiration of any time period specified elsewhere in this
Agreement with respect to the provision in question.
14.10 No Amendments. No amendment to this Agreement shall be
effective unless it is in a writing signed by a duly
authorized representative of each party. The term "Agreement",
as used herein, includes any future written amendments,
modifications, or supplements made in accordance herewith.
14.11 No Nuclear, Aircraft or Life-Support Applications. None of the
items supplied by GEI are designed or intended for use as a
component in the maintenance or operation of a nuclear
facility, aircraft or air traffic system or a life-support or
medical-monitoring system. If the Customer uses
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any of the GEI-supplied items in such an application, the
Customer agrees to indemnify and hold GEI harmless against any
claim arising out of that application.
14.12 Waiver. No term or provision hereof shall be deemed waived and
no breach excused, unless such waiver or consent shall be in
writing and signed by the party claimed to have waived or
consented. Any consent by any party to, or waiver of, a breach
by the other, whether express or implied, shall not constitute
a consent to, waiver of, or excuse for any other different or
subsequent breach.
14.13 Severability. If any provision of this Agreement is held
illegal, void or unenforceable, to any extent, in whole or in
part, as to any situation or person, the balance shall remain
in effect and the provision in question shall remain in effect
as to all other persons or situations, as the case may be.
14.14 Governing Law. This Agreement shall be deemed to have been
made in the State of Georgia and shall be governed by and
construed in accordance with the laws of the State of Georgia
exclusive of its rules governing choice of law and conflict of
laws.
14.15 Entire Agreement. The Agreement and all schedules and exhibits
hereto and Amendment #1 (which is attached hereto for
reference as Exhibit H) constitutes the entire agreement
between the parties hereto concerning the subject matter of
the Agreement and supersedes and replaces all prior and
contemporaneous agreements and representations between such
parties concerning such subject matter. No person is
authorized for either party to make any agreement or
representation not expressly contained in the Agreement. No
change, termination, modification, or waiver of any term or
condition of the Agreement shall be valid unless in a writing
signed by each party hereto. The section headings contained in
the Agreement are for convenience of reference and shall not
in any way affect the meaning or interpretation of the
Agreement. This Agreement shall not create any rights in, or
be enforceable by, persons other than the parties hereto,
their successors and permitted assigns. If there is a conflict
between the General Terms and Conditions and the terms and
conditions of any Exhibit, the General Terms and Conditions
shall control, except that terms applicable to Third Party
Software shall control with respect to such Third Party
Software (including, without limitation, Section 10 of the
Software License). However, to the extent possible, the
General Terms and Conditions and the Exhibits shall be
construed as complementary to each other. The Agreement may be
executed in one or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute
the same instrument.
IN WITNESS WHEREOF, each party has caused this Agreement to be executed by its
duly authorized representative, effective as of the Effective Date.
GLENAYRE ELECTRONICS, INC.: WEBLINK WIRELESS, INC.:
By: By:
-------------------------- --------------------------
Name: Name:
------------------------ ------------------------
Title: Title:
----------------------- -----------------------
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EXHIBIT A
DEFINITIONS
1. DEFINITIONS. In addition to terms elsewhere defined in this Agreement,
the following terms shall have the following meanings:
1.1. "Advanced Background Scanning" means support for
make-before-break sub-zone hand-off, registration flow control
in puddle sub-zones, robust pager state management in multiple
sub-zones, and fault-tolerant retry algorithm utilizing the
inherent redundancy in RF coverage.
1.2. "Ancillary Equipment" means any equipment ancillary or
peripheral to the Equipment, including antennae system
products, system consoles, remote system consoles, printers,
video screens and modems, that are either (i) not manufactured
by GEI or (ii) manufactured by GEI but listed in the Price
Book as a non-discountable item.
1.3. "Basic Background Scanning" ability to specify the location of
SCI frame pairs, the local scan list, signal strength
measurement parameters, and zone and sub-zone priorities as
defined in ReFLEX 2.7.
1.4. "Capacity Enhancement Channels (ReFLEX 25 2.7)" means a set of
features that can be enabled on a zone-by-zone basis to
enhance the capacity in large zones without a massive
build-out of transmitters and receivers, and without
degradation in the subscriber's experience. These features
include reverse channel hot spots, basic background scanning,
and advanced background scanning for ReFLEX25 version 2.7.
1.5. "Confidential Information" means the confidential and valuable
information of the respective parties which the parties desire
to protect against disclosure or competitive use and which is
in written or tangible form and designated either orally or in
writing as proprietary or confidential or is disclosed
visually or orally and is designated either orally or in
writing as being proprietary or confidential. GEI's
Confidential Information includes, without limitation, the
Software and Documentation.
1.6. "Data Unit Coasting" means the ability to schedule inbound
data units on the reverse channel during those frames when the
transmitters in the sub-zone are not transmitting ReFLEX
frames. Pagers that are scheduled to send such data units are
expected to have internal clocks that can "coast" through a
period with no forward channel activity while still
maintaining synchronization with the network.
1.7. "Defect" means any material error, problem, or defect in the
Equipment or Software which renders the Licensed Programs
inoperable or causes the Equipment or Software to fail to
perform substantially in accordance with the Specifications.
1.8. "Documentation" means the Specifications, drawings, user
manuals and other documents pertaining to the Software or
Equipment.
1.9. "Enterprise-wide license" is a pricing structure for only
Capacity Enhancing Channels and Landing Strip Channels in
which the respective software license is purchased whereby
instead of paying for each individual channel license, the
Customer pays one fee which covers the purchase of as many
channels as is needed for Customer's paging services.
1.10. "Equipment" means OEM Hardware, GEI-Manufactured Hardware and
other hardware components supplied by GEI to Customer pursuant
to this Agreement.
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1.11. "Expansion Parts" means assemblies (including trunk cards),
new software or spare cards for upgrading the features, or
increasing the capacity, of Terminal Equipment.
1.12. "Forecast" means a good faith, non-binding forecast by
Customer of the Products to be purchased by it from GEI within
6 months after any specified date or, if less, during the
remainder of the Term.
1.13. "Forward Channel" means a database entry in the GL3100 that
represents a control or data channel within a ReFLEX sub-zone.
Each forward channel carries up to 6400 bits/second of data
from the network to paging devices.
1.14. "GEI-Manufactured Hardware" means GEI-manufactured hardware
and devices (from new parts, or new and used parts, and in
some cases previously installed hardware and devices, each of
which is warranted by GEI as if new) (but excluding Software),
if any, supplied hereunder by GEI to Customer.
1.15. "Landing Strip Channel" means a database entry in the GL3100
that specifies the timing, content, and network address of
landing-strip re-director frames for a sub-zone. These frames
have the effect of re-directing pagers to their designated
control channels. A different landing-strip channel must be
configured for each sub-zone.
1.16. "Latency Enhancement Features" means a set of features that
can be enabled on a sub-zone-by-sub-zone basis to enhance
message latency. These features include time-of-day sub-zone
configuration, optimized forward channel work-ahead, reduced
inbound paging protocol delay, data in partially filled
control frames, pager class support for latency reduction,
auto collapse support as defined in ReFLEX 2.7, and priority
differentiation.
1.17. "Licensed Programs" means the object code (i.e.,
machine-readable) form of the Software programs developed and
owned by GEI for use in its paging systems, but excludes Third
Party Software.
1.18. "Narrowband Personal Communication Services ("NPCS")
Equipment" means R9000 Series Receivers, NPCS Preselector
Filters and RF Input Distribution Amplifiers.
1.19. "Net Price" means, for any Equipment or Software license, its
price listed in the then-current Price Book less any discount
given and excluding any sales and use taxes, goods and
services taxes, duties, V.A.T. taxes, transportation and
insurance costs and all other similar charges.
1.20. "OEM Hardware" means the third party manufactured hardware and
devices (from new parts, or new and used parts, and in some
cases previously installed hardware and devices, each of which
is warranted by the manufacturer as if new) (but excluding
Software), if any, supplied hereunder by GEI to Customer.
1.21. "Price Book" means the then current (as of the date of the
purchase order) GEI-published document that contains GEI's
standard prices in effect for the country for which the
Software or Equipment is to be supplied.
1.22. "Reverse Channel" means a database entry in the GL3100 that
represents a reverse channel within a ReFLEX sub-zone or a
reverse channel within a reverse channel hot spot. A reverse
channel may be configured for ALOHA messaging, scheduled
inbound data, or both.
1.23. "Reverse Channel Hot Spot" means a group of sites in a ReFLEX
sub-zone where the carrier installs one or more receivers
operating on reverse channel frequencies that are not
available everywhere in the sub-zone. The carrier must ensure
that pagers in one reverse channel hot spot do not interfere
with those in another reverse channel hot spot; this can be
done by either separating
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hot spots by a RF barrier, or by choosing different reverse
channel frequencies in different hot spots.
1.24. "RF Equipment" means any transmitter and accessory products,
control equipment and radio link equipment, manufactured or
supplied by GEI to its customers generally from time to time,
but shall not include NPCS equipment.
1.25. "Services" means any services, other than services under a
Maintenance Agreement (Glenayre Care-Product Service
Agreement) between the parties, by GEI for Customer as agreed
by the parties in writing.
1.26. "Software" means the object code form of the software
contained in the Equipment and the object code form of
software otherwise supplied by GEI to Customer and shall
include Licensed Programs and Third Party Software.
1.27. "Software Feature Keys" means the codes which when entered
enable specific chargeable software features.
1.28. "Special Offers" means "Introductory Specials," "Show
Specials," "Trade-In Offers" and other similar special offers.
1.29. "Specifications": The functional specifications relating to
the design and performance of the applicable Software or
Equipment.
1.30. "Terminal Equipment" means Expansion Parts and paging terminal
equipment, distributed network configuration server ("DNCS"),
GL3200 gateway, GL3100 RF Director equipment manufactured or
supplied by GEI to its customers from time to time.
1.31. "Term" shall have the meaning set forth in Section 11.1 of the
General Terms and Conditions of this Agreement.
1.32. "Third Party Software" means any Software other than Licensed
Programs and shall include, without limitation, Software
contained in OEM Hardware, Oracle software and Sun software.
1.33. "Time of Day Subzone Configuration" means the ability for the
GL3100 to change key sub-zone parameters such as battery cycle
according to an operator-defined schedule. The time-of-day
sub-zone configuration schedule is typically used to vary the
battery cycle several times a day to improve latency during
busy hours while maintaining acceptable battery life.
2. Terms defined in Incoterms (1990) and used in this Agreement shall
apply to the Agreement. "Including" means including without limitation.
All references in the Agreement to "dollars" and "$" mean United States
dollars. All payments under the Agreement shall be in United States
dollars.
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EXHIBIT B
SOFTWARE PRICING FOR CAPACITY ENHANCEMENT ON WEBLINK'S REFLEX NETWORK
******
Assumptions:
o At least two capacity enhancement feature licenses are needed to
activate capacity enhancement features in a sub-zone, one for the
forward channel and the other for the reverse channel. Additional
licenses are needed if there is more than one forward channel or more
than one reverse channel in the sub-zone.
o If there are multiple sub-zones in a zone, capacity enhancement
features must be enabled in all or none of the sub-zones.
o It is understood that capacity enhancement features are not necessary
in order to operate a fully functioning landing-strip system.
Conversely, it is also understood that landing strip is not necessary
to operate the capacity enhancement features. The enterprise license
shall include the features identified in the Definitions section above.
o Pricing for the interference-based reverse channel reuse feature will
be provided in a subsequent proposal.
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EXHIBIT C
TRAINING
TRAINING CLASS INFORMATION CAN BE FOUND AT:
▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇/▇▇▇▇/
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EXHIBIT D
PAYMENT INSTRUCTIONS
PAYMENT INSTRUCTIONS PROVIDED TO CUSTOMER IF DEEMED REQUIRED BY
GEI UNDER THIS AGREEMENT
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EXHIBIT E
SOFTWARE LICENSE
RECITALS
1.1 To enable the Customer to operate equipment sold by GEI to the Customer,
GEI wishes to grant to the Customer and the Customer wishes to acquire from
GEI a non-exclusive right to use computer software in object code form
only, to practice inventions protected by issued patents or pending
applications, and to use materials, subject to the provisions of this
License Agreement. The Software Licenses, the User Material Licenses and
the Patent Licenses granted by GEI under this License Agreement are
referred to collectively as the "Licenses".
LICENSE FEES
2.1 The purchase price of the Equipment includes the fees for the Licenses (the
"License Fees").
SOFTWARE LICENSES
3.1 GEI grants to the Customer a non-exclusive license or sublicense to use, in
object code form only, the Software (the "Software Licenses"). The
"Software" collectively means the software owned by GEI and itemized in
GEI's Quotation/Sales Order Acknowledgment or contained in the equipment
listed in GEI's Quotation/Sales Order Acknowledgment (the "Equipment") and
any third party owned software contained in the Equipment. The Software
Licenses are effective upon installation of the Software and the Equipment
and are specifically limited to the Customer's use of the Software in the
Equipment in the country designated by the Customer prior to delivery. The
software Licenses do not include any rights with respect to the source code
form of the Software.
USER MATERIAL LICENSES
4.1 GEI may provide the Customer with materials, including drawings, diagrams,
specifications, documentation, training manuals and user manuals, for the
use and servicing of the Equipment and the Software (the "User Materials").
GEI licenses or sublicenses the Customer the non-exclusive right to use the
GEI owned User Materials and any third party owned User Materials in
conjunction with the use and servicing of Equipment and Software (the "User
Material Licenses"). GEI and the third parties reserve all rights in their
respective User Materials.
NO TRANSFER OF SOFTWARE OR USER MATERIALS
5.1 The Customer shall not assign, transfer or sublicense the Software or the
User Materials, whether separately or as part of a sale of the Equipment,
without the prior written consent of GEI, which will not be unreasonably
withheld.
ACKNOWLEDGMENT OF PATENT RIGHTS
6.1 The Customer acknowledges that various components of the Equipment and
Software are the subject of one or more GEI patents or pending patent
applications, or third party patents or pending patent applications under
which GEI is licensed.
LIMITED, NON-EXCLUSIVE LICENSE UNDER PATENTS
7.1 GEI grants the Customer a non-exclusive right (the "Patent License") to
practice the inventions protected by GEI's patents or pending patent
applications or third party patents or pending patent applications that are
embodied in either the Equipment or Software.
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7.2 If any improvements to the Equipment or Software are claimed in any
patents, or any patents issuing from any pending patent applications, owned
by or licensed to the Customer, the Customer shall grant GEI a
royalty-free, transferable license to make, use or sell, and to grant
sublicenses to make, use or sell the Equipment, Software and improvements.
The provisions of this Paragraph 7.2 shall survive the termination of this
License Agreement.
TERMINATION OF LICENSES
8.1 The Licenses shall terminate if:
(a) the Equipment or Software is moved by the Customer outside of the
country in which the Equipment and Software were first installed;
(b) the Equipment is sold, except as provided in Paragraph 8.2; or
(c) the Software is no longer used in connection with the Equipment.
PROPRIETARY INFORMATION
9.1 "Proprietary Information" means any scientific, technical or business
information relating to GEI's products or business that is valuable to GEI
and not generally known to those outside GEI, or relating to the third
party's products or business that is valuable to the third party and not
generally known to those outside the third party.
9.2 The Customer acknowledges that:
(a) the Software and all materials supplied in connection with the
Software, including flow charts, object code and input data formats,
contained Proprietary Information that has been developed by GEI or
third parties at great expense and considerable effort of skilled
professions, and is entrusted by GEI to the Customer under this
License Agreement for use only as specifically set out in this License
Agreement;
(b) to carry out the terms and conditions of this License Agreement, GEI
may have to disclose to the Customer certain Proprietary Information;
and
(c) GEI and the third parties claim and reserve all rights in the
Software, and all materials supplied or produced in connection with
the Software, as an unpublished copyrighted work.
9.3 The Customer acknowledges the Proprietary Information has substantial value
and that any use or disclosure of Proprietary Information by the Customer
or its personnel in a manner not authorized by this License Agreement would
likely cause GEI and the third parties irreparable damage that could not be
fully remedied by monetary damages. So, the customer:
(a) shall maintain all Proprietary Information in strict confidence and
shall neither use, copy or disclose, nor permit any Customer personnel
to use, copy or disclose, the Proprietary Information for any purpose
not specifically authorized under this License Agreement;
(b) shall ensure that the Software and all copies of it and User
Materials, when not in use, are kept in a secure place, subject to
restricted access only by those persons authorized to use and maintain
the Equipment and Software;
(c) shall not decode, reverse engineer, reprint, transcribe or reproduce,
in whole or in part, the Software and User Materials without the prior
written consent of GEI;
(d) shall not in any way modify or enhance the Software without the prior
written consent of GEI;
(e) shall not assign, timeshare or rent the Software; and
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(f) grants to GEI the right to seek injunctive or other equitable relief
from a court of competent jurisdiction to prevent unauthorized or
unlawful action.
9.4 The Customer may make a reasonable number of copies of the object code
version of the Software for backup purposes only.
9.5 The Customer's rights under this License Agreement shall terminate upon
breach of any of the provisions set out in Section 9. The provisions of
Paragraph 9.3 shall survive termination of this License Agreement. The
Customer shall promptly return all copies of the Proprietary Information,
including the Software and all User Materials provided for the Software,
if:
(a) this License Agreement is terminated for any reason; or
(b) the Customer ceases control, possession or use of the Equipment, the
Software or the User Materials.
9.6 To assist GEI in the protection of the proprietary rights of GEI and the
third parties, and upon thirty (30) days written notice to Customer, the
Customer shall permit representatives of GEI to enter the Customer's
premises and inspect the Equipment and Software at any reasonable time.
REVISED VERSIONS OF THE SOFTWARE
10.1 The Customer agrees that if GEI provides revised versions of the Software
to use in the Equipment, the revised versions shall be covered by the
provisions of this License Agreement.
CERTAIN THIRD PARTY LICENSED PROGRAMS AND TERMS.
11.1 The Customer acknowledges that the items supplied by GEI may be or contain
Software owned by third parties ("Third Party Software"). The Customer's
continuing right to use Third Party Software and associated documentation
is conditioned upon the Customer's agreement to abide by: (a) shrink
wrapped or other agreements between the Third Party Software vendor and the
Customer; (b) specifically indicated terms and conditions in this
Agreement; and (c) terms and conditions that may from time to time be
supplied by the Third Party Software vendors or GEI; provided, however,
except as necessary to comply with applicable law, no subsequent change in
the terms and conditions applicable to Third Party Software shall affect
the Customer's license to use the Third Party Software previously supplied
to the Customer by GEI if the Third Party Software is not thereafter
updated or otherwise modified (including any new version or release level).
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EXHIBIT F
NORTH AMERICAN WARRANTY
GENERAL TERMS
1.1 Subject to the provisions of this Warranty, GEI warrants that the equipment
and software described in Paragraph 1.2 shall conform to their
specifications in all material respects and that the equipment shall be
free from material defects in materials and workmanship.
1.2 This Warranty applies to all original purchases of GEI supplied equipment,
including disk drives and CPU's, and software (collectively the
"Equipment").
1.3 This Warranty does not apply to consumable items or to the following items
which are covered by the Original Equipment Manufacturer's warranty,
including, but not limited to :
(a) peripheral equipment, such as printers, modems, fax servers, personal
computers, data loggers and video display terminals;
(b) OEM satellite items, such as antennas, mounts or LNB's uplinks.; and
(c) equipment or software which is not commercially available, including,
without limitation, any Beta software.
1.4 The effective period of this Warranty shall start on the later of the date
of shipment of the Equipment or the date of installation by a GEI, or GEI
approved, technician and shall end, for all RF Equipment, two (2) years
later, for all feature enhancements, component parts and system expansions,
ninety (90) days later, and, for all other Equipment, one (1) year later
(in each case the "Warranty Period").
1.5 The Customer acknowledges that GEI does not represent or warrant that the
services provided by GEI under this Warranty will ensure uninterrupted or
error-free operation of the Equipment, nor that all program defects in the
software will be corrected.
RETURN OF EQUIPMENT UNDER WARRANTY
2.1 If an item of Equipment malfunctions or fails in normal use within the
applicable Warranty Period:
(a) the Customer shall promptly notify GEI of the problem and the serial
number of the defective item;
(b) GEI shall, at its option, either resolve the problem over the
telephone, or provide the Customer with a Return Authorization ("RA")
Number and the address of a GEI Service Center to which the Customer
may ship the defective item;
(c) if the problem is not resolved over the telephone, the Customer shall
attach a label showing the RA Number to each returned item, and shall
include a description of the fault. The Customer shall include a
description of the fault. The Customer shall, at its cost, properly
pack the item to be returned, prepay the insurance and shipping
charges, and ship the item to the specified GEI Service Center;
(d) GEI shall either repair or replace the returned item. The replacement
item may be new or refurbished. If refurbished, it shall be equivalent
in operation to new Equipment. If a returned item is replaced by GEI,
the Customer agrees that the returned item shall become the property
of GEI;
(e) GEI shall complete the repair or exchange of GEI manufactured
equipment returned under this Warranty within ten (10) business days,
and of OEM equipment within twenty (20) business days, of receipt of
the Equipment; and
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(f) GEI shall, at its cost, ship the repaired item or replacement to the
Customer. If the Customer has requested express shipping, the Customer
shall pay GEI an expediting fee.
2.2 Equipment which is repaired or replaced by GEI under this Warranty shall be
covered under all of the provisions of this Warranty for the remainder of
the applicable Warranty Period or ninety(90) days from the date of repair
or replacement, whichever is longer.
ADVANCE REPLACEMENTS
3.1 If the Customer has maintained a satisfactory credit standing with GEI, GEI
may supply to the Customer the advance replacement parts requested by the
Customer during the Warranty Period.
3.2 Subject to Paragraph 3.1, if stock is available at a GEI service stock
location, GEI shall ship the advance replacement parts within 24 hours of
the Customer's request. If stock is not available, GEI will make every
reasonable effort to locate and provide the advance replacement parts to
the Customer within ten (10) business days.
3.3 The Customer shall return the defective item to GEI within thirty (30) days
from the date of shipment of the advance replacement parts; failing which,
GEI shall invoice the Customer for the full current list price of the
advance replacement part, and the Customer shall pay the invoice within
thirty (30) days.
TELEPHONE TECHNICAL ASSISTANCE
4.1 During the applicable Warranty Period, GEI shall provide the Customer with
over-the-telephone technical fault analysis during business hours, and
emergency support after business hours.
UPGRADES
5.1 During the applicable Warranty Period, GEI shall, at no charge, provide the
Customer with non-feature software updates and, if the Equipment is sent to
GEI for Warranty repair, those revision level updates deemed necessary by
GEI.
5.2 Non-feature software updates and revision level updates do not generally
include additional equipment, such as hardware memory, which enable the
upgrades to function in the existing equipment of the Customer. The
Customer may purchase this additional equipment from GEI.
DEFAULT AND TERMINATION
6.1 GEI may immediately terminate this Warranty and all of its performance
under this Warranty, upon notification to the Customer, if the Customer:
(a) makes any unauthorized modifications to the Equipment;
(b) assigns or transfers the Customer's rights or obligations under this
Warranty without the prior written consent of GEI;
(c) becomes bankrupt or insolvent, or is put into receivership; or
(d) has not paid GEI all amounts for services, advance replacement parts
supplied under this Warranty, or other additional charges within
thirty (30) days of receipt of written notice from GEI, unless other
arrangements have been agreed upon between GEI and Customer.
6.2 If this Warranty is terminated by GEI, the Customer shall remain liable for
all amounts due to GEI.
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FORCE MAJEURE
7.1 "Force Majeure" has the same meaning as defined in the then-current written
agreement signed by the parties.
7.2 GEI shall not be responsible for failure to discharge its obligations under
this Warranty due to Force Majeure.
LIMITATIONS AND QUALIFICATIONS OF WARRANTY
8.1 This Warranty does not apply to any damage, defect or failure caused by:
(a) any part of the Equipment having been installed, modified, adapted,
repaired, maintained, transported or relocated by any person other
than GEI personnel, a GEI authorized service agent, or GEI approved
technician without GEI's prior written consent;
(b) storage or environmental characteristics which do not conform to the
applicable sections of the appropriate GEI Equipment Manual;
(c) failure to conform with the Equipment Operating Instructions in the
applicable GEI Equipment Manual;
(d) external causes, including external electrical stress or lightning, or
use in conjunction with incompatible equipment, unless such use was
with GEI's prior written consent;
(e) cosmetic damage;
(f) accidental damage, negligence, neglect, mishandling, abuse or misuse,
other than by GEI personnel, a GEI authorized service agent or GEI
approved technician; or
(g) Force Majeure.
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EXHIBIT G
SOFTWARE COMMITMENTS
GEI agrees to the following Software delivery schedule:
******
GEI will make reasonable efforts to assist Customer technical staff in
testing the Beta software releases. under field conditions, to dedicate
resources available to resolving any technical issues, and to strive for an
earlier commercial release date.
Customer will make reasonable efforts to assist GEI technical staff in
testing the Beta software under field conditions, including dedicating the
Dallas test bed as needed in testing the software and testing the beta
software with commercial traffic in the Dallas zone for a period of three
(3) weeks, provide timely feedback to GEI, comply with GEI requirements for
the Beta testing and cooperate in good faith with GEI in conducting Beta
testing. If Customer fails to provide this support, GEI shall not be
responsible for the commercial release commitments stated herein.
--------------------------------------------------------------------------------
ADDITIONAL UPGRADES:
GEI has agreed to make the following upgrades to existing Customer systems:
******
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EXHIBIT H
AMENDMENT #1 TO THE VPA
SEE ATTACHED PAYMENT LETTER AGREEMENT
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September 29, 2000
▇▇. ▇▇▇▇ ▇▇▇▇▇
Chief Financial Officer
Glenayre Electronics, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear ▇▇. ▇▇▇▇▇:
Any purchase of Equipment, Software or Services (as defined in the Volume
Purchase Agreement, dated September 29, 2000 ("VPA")) between WebLink Wireless,
Inc. ("WebLink Wireless") and Glenayre Electronics, Inc. ("GEI") that is not
financed through the Promissory Note and Security Agreement dated March 21, 1997
as modified and amended March 12, 1998 and March 26, 1999 and as subsequently
modified or amended from time to time ("Promissory Note"), will be paid for as
follows:
- GEI will establish a shipment date which shall be the date
communicated to Weblink Wireless by GEI's Credit Department
("Shipment Date") and which shall occur on a regular business day
Monday through Friday, excluding banking holidays (unless
otherwise agreed by Weblink Wireless).
- ******
- ******
- ******
- ******
- ******
- Notwithstanding anything to the contrary in the VPA, GEI shall
bear no responsibility for shipment delays due to Weblink
Wireless' failure to comply timely with its obligations set forth
in this letter agreement.
This understanding, which replaces the last sentence of Section 4.4(a) of the
VPA and modifies Section 4.5, may be changed at any time by the authorized
officers signing a mutually agreed-upon written agreement by WebLink Wireless
and GEI. The terms of this letter do not amend the terms of the VPA except as
explicitly stated herein. All the other terms of the VPA remain in full force
and effect. GEI agrees that WebLink Wireless' failure to meet the terms set
forth herein will not by itself constitute a default under that portion of
Section 8.1(f) of the Promissory Note that pertains to Weblink Wireless' default
of any agreement between Weblink Wireless and GEI. For avoidance of doubt, the
parties agree that the preceding sentence should not be construed, and shall not
in any way modify, the rights and remedies available to GEI associated with
Weblink Wireless' default in its performance of its obligations with any other
lender as set forth in Section 8.1 (f) (e.g., if Weblink Wireless' failure to
comply with its obligations hereunder causes Weblink Wireless to be in default
with its agreement with such other lender, then such would constitute an Event
of Default under the Promissory Note). Furthermore, except as explicitly
provided and then only to the extent provided herein, nothing herein shall
restrict or otherwise limit GEI's right to pursue any and all remedies available
at law or equity to enforce its rights under this letter agreement, the
Promissory Note and/or the VPA.
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If you agree to the above, please countersign below.
Sincerely yours,
▇▇▇▇ ▇. ▇▇▇▇▇
Chief Financial Officer
Acknowledged and Agreed to by:
Name:
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Title:
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Date:
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