EXHIBIT 10.36
SMARTSHARE SYSTEM
PURCHASE AGREEMENT
BY AND BETWEEN
METAWAVE COMMUNICATIONS CORPORATION
AND
CROWN CASTLE MW CORP.
FEBRUARY 26, 2002
* Certain information in this document has been omitted and filed separately
with the Commission. Confidential treatment has been requested with respect to
the omitted portions.
SMARTSHARE PROGRAM PLAN
TABLE OF CONTENTS
1 AGREEMENT 1
2 DEFINITIONS 1
3 TERM 5
4 SCOPE OF DEVELOPMENT 5
5 INTELLECTUAL PROPERTY RIGHTS 7
6 LICENSES/BANKRUPTCY 8
7 TESTING AND VERIFICATION PROCEDURES 9
8 PRODUCT PURCHASE 10
9 PURCHASE ORDERS 15
10 SHIPPING/TITLE/RISK OF LOSS 19
11 INVOICE AND PAYMENT 21
12 WARRANTY 23
13 INFRINGEMENT INDEMNITY 24
14 TERMINATION 26
15 TRADEMARKS 29
16 SERVICES AGREEMENT 29
17 CONFIDENTIALITY 30
18 LEGAL RELATIONSHIP 31
19 ASSIGNMENT 32
20 NOTICES 32
21 COMPLIANCE WITH LAWS/EXPORT ▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
▇▇ GOVERNING LAW/DISPUTE RESOLUTION 33
24 PUBLICITY 34
25 WAIVER 35
26 DISCLAIMER OF CONSEQUENTIAL DAMAGES 35
27 SEVERABILITY 35
28 ENTIRETIES 35
29 SURVIVAL 35
30 AMENDMENTS 36
31 CONSTRUCTION 36
32 FURTHER ASSURANCES 36
33 COUNTERPARTS 36
34 TERRITORY 36
35 TIME IS OF ESSENCE 37
Exhibit A -- Statement of Work and Project Milestones
Exhibit B -- Product Specifications
Exhibit C -- Performance Acceptance Criteria and Procedure
Exhibit D -- Products Price List
Exhibit E -- Ancillary Product Price List
Exhibit F -- Design Package Escrow Agreement
Appendix 1 -- Purchase Order
THIS SMARTSHARE SYSTEM PURCHASE AGREEMENT (together with all its Exhibits and
attachments, the "AGREEMENT") by and between Metawave Communications
Corporation, a Delaware corporation, having its principal place of business at
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("METAWAVE"), and Crown Castle
MW Corp., a Delaware corporation, having a place of business at ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("CROWN"), effective as of the 26th day of
February, 2002 ("EFFECTIVE DATE").
The Parties, in consideration of the mutual covenants, agreements and promises
of the other set forth in this Agreement and intending to be legally bound,
agree as follows:
1 AGREEMENT
Crown designs, deploys, owns and operates wireless communications sites that are
outsourced to multiple wireless network operators and Metawave designs,
develops, manufactures and sells spectrum management systems to increase
capacity of wireless networks. Metawave desires to develop, test and market the
SmartShare System. After the development and testing thereof, Metawave agrees to
sell to Crown the Products and Ancillary Products that incorporate the
SmartShare System in accordance with the terms and conditions hereof and at the
Purchase Prices set forth herein.
2 DEFINITIONS
As used in this Agreement, the following terms shall have the meanings set forth
below:
"2+2 PRODUCT" shall mean a set of two antennae per sector (or 6 antennae per
installation) that supports multiple FCC Cellular and PCS frequency bands
operating simultaneously pursuant to the specifications set forth in Exhibit B.
"ANCILLARY PRODUCTS" shall mean the ancillary products set forth in Exhibit E
that relate to the Products, such as Personality Cards and PCS filter
assemblies.
"AFFILIATE" shall mean any partnership, corporation or other entity directly or
indirectly Controlling, Controlled by or under common Control with a Party.
"CONFIDENTIAL INFORMATION" shall have the meaning set forth in Section 17.
"CONTROL" "CONTROLLING" and "CONTROLLED" shall mean the right to directly or
indirectly control the management and policies, by law or contract, of such
organization.
"CROWN FORECAST" shall mean the non-binding rolling four-quarter forecast
provided by Crown to Metawave and updated on a quarterly basis setting forth
Crown's estimate of its Product requirements (other than the Initial Order) with
the anticipated delivery date for such requirements.
"CROWN INFRASTRUCTURE" shall mean the equipment located at Crown's wireless
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communications sites that is owned by Crown and outsourced to wireless network
operators, excluding the Prototypes, Initial Commercial Products, Products or
Ancillary Products, as the case may be, and any property owned by the wireless
network operators.
"CROWN SPECIFICATIONS" shall have the meaning set forth in Section 4.4.
"CROWN ICP DATE TERMINATION" shall have the meaning set forth in Section 8.1.
"EVENT OF DEFAULT" shall have the meaning set forth in Section 14.1.
"FCC" shall mean the Federal Communications Commission and any successor
thereto.
"FOLLOW-ON ORDER" shall mean any Purchase Order submitted from time to time
following issuance of the Initial Order.
"ICP CONFIRMATION DATE" shall have the meaning set forth in Section 8.1.
"ICP DELIVERY DATE" shall mean the date upon which Metawave will deliver the
Initial Commercial Products to Crown, which date shall be no later than
September 30, 2002. Pursuant to Section 8.1, Metawave may inform Crown in
writing that the anticipated ICP Delivery Date shall be on a date earlier than
September 30, 2002.
"INITIAL COMMERCIAL PRODUCTS" ("ICP") shall mean the first [***] commercial
products and related components provided pursuant to the Initial Order in
accordance with Exhibit B, which shall be evaluated during the Performance
Evaluation Period pursuant to the Product Performance Criteria.
"INITIAL CHANGE ORDER FORECAST" shall have the meaning set forth in Section 9.8.
"INITIAL ORDER" shall mean the Purchase Order issued by Crown for 300 Products
(unless reduced to 100 Products as set forth below) to be delivered by Metawave
to Crown over a 90-day period commencing after the date of Performance
Acceptance, provided that Metawave shall deliver no less than one hundred (100)
Products during each 30-day period on the delivery dates specified by Crown (if
applicable, the delivery of such Products during each 30-day period shall be
referred to herein as a "TRANCHE"). If Crown elects to lower the number of
Products in the Initial Order to 100 Products pursuant to Section 8.1, Metawave
shall deliver the 100 Products over a 60-day period commencing after the date of
Performance Acceptance, provided that Metawave shall deliver no less than fifty
(50) Products during each 30-day period on the delivery dates specified by Crown
(if applicable, the delivery of such Products during each 30-day period shall be
referred to herein as a "TRANCHE"). Notwithstanding the foregoing, if Crown
requests that Metawave deliver more than one hundred (100) Products or fifty
(50) Products, as applicable, during a particular 30-day period, the requirement
to deliver one hundred (100) or fifty (50) Products, as applicable, in the
subsequent 30-day period shall be reduced by the amount of Product delivered in
the preceding 30-day period which
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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exceeds the minimum requirement of one hundred (100) Products or fifty (50)
Products, as applicable. For purposes of the definition of "Initial Order",
notwithstanding the definition of "Products", the Parties acknowledge that the
Initial Order may or may not include PCS Expansion Antennas and Tenant Expansion
Kits, which may be ordered by Crown in its sole discretion.
"INITIAL TERM" shall mean the period of time commencing on the Effective Date
and terminating on the [***] anniversary of the date of Performance Acceptance.
"INTELLECTUAL PROPERTY RIGHTS" shall mean all intellectual property rights,
including (i) any patent, patent application, trademark (whether registered or
unregistered), trademark application, trade name, service ▇▇▇▇ (whether
registered or unregistered), service ▇▇▇▇ application, copyright (whether
registered or unregistered), copyright application, trade secrets, Confidential
Information, know-how, process, technology, development tool, ideas, concepts,
design right, moral right, data base right, methodology, algorithm, or
invention, (ii) any right to use or exploit any of the foregoing, and (iii) any
other proprietary right or intangible asset.
"LIQUIDATED DAMAGES" shall have the meaning set forth in Section 14.4.
"PARTIES" shall mean Crown and Metawave, their successors and assigns as
permitted by this Agreement. "PARTY" shall mean Crown or Metawave, their
successors and assigns as permitted by this Agreement, as applicable.
"PCS EXPANSION ANTENNA" shall mean a PCS antenna, which is used to add a 3rd and
4th PCS tenant to a Product.
"PCS PRODUCT" shall mean a set of two antennae per sector (or 6 antennae per
installation) that supports 2 FCC PCS frequency bands operating simultaneously
pursuant to the specifications set forth in Exhibit B.
"PERFORMANCE ACCEPTANCE" shall apply to the Initial Commercial Products only and
shall mean the Parties' mutual certification that the Initial Commercial
Products satisfy the Product Performance Criteria set forth in Exhibit C.
"PERFORMANCE EVALUATION PERIOD" shall mean a period of thirty (30) days that
commences on the day after Crown notifies Metawave that the Initial Commercial
Products have been installed, are operational for testing purposes and are ready
for evaluation in accordance with the Product Performance Criteria set forth in
Exhibit C.
"PERSONALITY CARDS" shall mean the individual cards to be used in conjunction
with the Products and which define the Product's coverage and service area
performance.
"PRODUCT" or "PRODUCTS" shall mean the commercial version of the products
produced after Performance Acceptance that incorporate the SmartShare System
developed under
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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this Agreement, and any components of such System, including the list of
SmartShare System components and documentation set forth in Exhibit B. Products
shall include all enhancements, variations and subsequent versions of the
SmartShare System or any additional product(s) set forth in any amendments
thereto as may be subsequently agreed to from time to time by Metawave and
Crown. The Products available under this Agreement include the 2+2 Product, PCS
Product, the PCS Expansion Antenna and Tenant Expansion Kit set forth in Exhibit
D.
"PRODUCT PERFORMANCE CRITERIA" shall mean the technical performance measures set
forth in Exhibit C to be used for the evaluation of the Initial Commercial
Products during the Performance Evaluation Period.
"PRODUCT SPECIFICATIONS" shall mean the features and specifications set forth in
Exhibit B, which incorporate the Crown Specifications, as may be amended from
time to time by Metawave; provided, however, that any changes to the Crown
Specifications, shall be discussed and approved in advance by Crown, which
approval shall not be unreasonably withheld.
"PROTOTYPES" shall mean the 2+2 and PCS prototype product versions (and related
components) of the SmartShare System.
"PROTOTYPE FIELD TESTING" or "FIELD TRIALS" shall mean the test procedures used
and services provided to evaluate the performance of the Prototypes as
integrated into the Crown Infrastructure.
"PROTOTYPE PERFORMANCE CRITERIA" shall mean the technical performance measures
set forth in Exhibit C to be used for the evaluation of the Prototypes.
"PURCHASE ORDER" shall mean any purchase order that Crown may submit to Metawave
for the purchase of Products and/or Ancillary Products, which shall be subject
to the terms and conditions of this Agreement, the agreed form of which is
substantially as attached hereto as Appendix 1.
"PURCHASE PRICE" shall mean the price of the Products and the Ancillary Products
shown in Exhibits D and E or any other amount set forth in any amendments to
Exhibits D and E as may be subsequently agreed to from time to time by Metawave
and Crown. All prices shown therein are in U.S. dollars.
"RENEWAL TERM" shall have the meaning set forth in Article 3.
"SHARED INFRASTRUCTURE" shall mean a system, which has the capability of
allowing multiple wireless operators to share a common antenna system among
multiple FCC frequencies.
"SMARTSHARE SYSTEM" shall mean the Shared Infrastructure including all
components
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included within the Products and the Ancillary Products to be developed and
delivered hereunder pursuant to the specifications in Exhibit B. The defined
term "SmartShare System" shall include all enhancements, variations and
subsequent generation products thereof.
"STATEMENT OF WORK" means the plan set forth in Exhibit A, which establishes
project deliverables, timetable, and the responsibilities and obligations of
Crown and Metawave in the development and testing of the SmartShare System.
"SUBSEQUENT CHANGE ORDER FORECAST" shall have the meaning set forth in Section
9.8.
"TENANT EXPANSION KIT" shall mean a tenant kit containing six Personality Cards,
duplexers, combiners and, if required, a filter assembly.
"TERM" shall have the meaning set forth in Article 3.
"UPGRADES" shall have the meaning set forth in Section 4.5.
"WARRANTY PERIOD" shall mean with respect to each Product and Ancillary Product,
the period of time that ends on the earlier of the [***] month anniversary of
the date of installation of each Product or Ancillary Product, as applicable, or
the [***] month anniversary of the date of delivery and acceptance (in
accordance with Section 10.3) of each Product or Ancillary Product, as
applicable (except in the case of the Initial Commercial Products, which are
warranted for a period of [***] months from the date of Performance Acceptance).
3 TERM
This Agreement is effective on the Effective Date and shall continue in full
force and effect for the Initial Term, unless terminated earlier as permitted by
this Agreement. Upon expiration of the Initial Term, this Agreement shall
automatically renew for successive, additional [***] renewal terms (each a
"RENEWAL TERM"), unless either Party provides written notice of its intent to
terminate at least sixty (60) days in advance of the expiration of the Initial
Term or the Renewal Term (as applicable). The Initial Term together with any
Renewal Terms is referred to in this Agreement collectively as the "TERM".
4 SCOPE OF DEVELOPMENT
4.1 Development. Metawave will develop the SmartShare System, Prototypes,
Initial Commercial Products, Products, Ancillary Products and documentation
described in Exhibit A in accordance with the Product Specifications in Exhibit
B and the project milestones set forth in Exhibit A. Metawave will produce the
Prototype units, the Initial Commercial Products and, subject to Performance
Acceptance, the Products and Ancillary Products.
-----------------------------
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
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4.2 Crown Financial Obligations During Development. Crown shall have no
financial obligations to Metawave relating to the development or production
(except as expressly contemplated in Section 9.5) of the SmartShare System, the
Prototypes, the Initial Commercial Products, the Ancillary Products, the
Products or otherwise, except Crown's internal costs and expenses incurred
relating to Crown's participation in the development of the SmartShare System.
4.3 Reports. Commencing on the Effective Date, until all testing is completed
and commercial production of the Products (excluding the Initial Commercial
Products) and Ancillary Products has commenced, Metawave shall keep Crown
regularly informed of the progress of the development of the SmartShare System,
the Prototypes, the Initial Commercial Products, the Ancillary Products and the
Products by providing Crown with biweekly reports (in a format and content to be
mutually agreed upon by the Parties) on the progress of the planned and actual
development, testing, and production of said items. If at any time during the
Term, Metawave commences development, testing or production of (i) enhancements,
variations, new versions or subsequent generations of or Upgrades to the
Products or the Ancillary Products or (ii) any new Shared Infrastructure
products or replacement products as contemplated in Sections 4.4 and 4.5 below,
Metawave shall resume delivery of the above referenced biweekly reports to Crown
until all testing is completed and commercial production of said item has
commenced. Metawave shall contact Crown upon reasonable request to discuss the
matters set forth in such biweekly reports. In addition, during the Term,
Metawave shall convey to Crown any customer concerns or other input received
from such customers in connection with the development of the SmartShare System,
the Prototype, the Initial Commercial Products, the Products and the Ancillary
Products, provided, however, that the obligation to discuss such information
with Crown shall be subject to any confidentiality obligations.
4.4 Crown Specifications. Crown shall provide Metawave with a mutually agreeable
set of minimum functionality and specifications required by Crown for the
SmartShare System ("Crown Specifications"), which shall be incorporated into the
Product Specifications. Metawave agrees to develop a SmartShare System that
meets the Product Specifications. In the event that Metawave develops any
features or capabilities which may improve the functionality of the SmartShare
System or which may exceed the quality, performance or capabilities of any of
the Crown Specifications ("Enhanced Features"), Metawave shall discuss such
Enhanced Features and the associated costs related to same with Crown. Crown
may, in its sole discretion, request that Metawave incorporate such Enhanced
Features into the Products and/or the Ancillary Products to be purchased in the
Initial Order; provided, that such Enhanced Features will be tested with the
SmartShare System during the Prototype Field Testing. To the extent that Crown
does not desire the Enhanced Features, but Metawave does desire the Enhanced
Features, then, to the extent such Enhanced Features are demonstrated, to
Crown's reasonable satisfaction, to not conflict with or affect the Product
Specifications, Metawave may add the Enhanced Features to the Products and/or
the Ancillary Products. Crown shall not, however, be obligated to pay any
additional amount for such Enhanced Features in excess of the prices set forth
in Exhibits D and E hereof, as the case may be.
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4.5 Product Upgrades; New Shared Infrastructure Products. Following the Initial
Order, if Metawave develops any new Enhanced Features, product features or
capabilities ("Upgrades") to the SmartShare System, or if Metawave develops any
alternative products for Shared Infrastructure applications, Metawave shall
notify Crown of such Upgrades or new Shared Infrastructure products, and offer
such Upgrades or Shared Infrastructure products to Crown under substantially
similar terms and conditions as contemplated in this Agreement (but not
including (i) any liquidated damages clauses with respect to the failure to
deliver any initial products or (ii) exclusivity clauses); provided, however,
that Metawave shall not be obligated to offer Crown with substantially similar
terms and conditions as contemplated in this Agreement for those Shared
Infrastructure products where the development effort for same was initiated by
an unsolicited third party. Metawave shall discuss with Crown the technical
feasibility of adopting or using any Upgrades with the Products, Ancillary
Products or the Shared Infrastructure products, as the case may be, the cost
impact associated with same, and the mutually acceptable plans for testing the
Product and/or Ancillary Products containing the Upgrades or the Shared
Infrastructure products, as the case may be. In the event that Crown elects, in
its sole discretion, to purchase replacement products (in the event of a
discontinued product), the Upgrades or the new Shared Infrastructure products,
the definition of "Products" and/or "Ancillary Products" shall be amended to
include the replacement products, Upgrades or the products with the new Shared
Infrastructure applications, as the case may be, and this Agreement shall be
amended to include those replacement products, Upgrades and/or Shared
Infrastructure products, with appropriate modifications to provide Crown with
the benefits of all the preferential rights contemplated herein (e.g., providing
a revised Exhibit D or E with preferential pricing for the Product and/or
Ancillary Product containing the Upgrades or the new Shared Infrastructure
product). To the extent Crown declines any Upgrades to the Products and/or the
Ancillary Products, Metawave may produce the Product and/or Ancillary Product
containing the Upgrades in question, but in any event, it shall also continue
producing and selling to Crown the Products and/or Ancillary Products without
the Upgrades in question at the Purchase Price previously being paid by Crown.
In the event that Metawave would like to discontinue a Product or Ancillary
Product sold to Crown under this Agreement, then prior to proceeding with any
such discontinuation, Metawave shall make available for sale to Crown a suitable
replacement product acceptable to Crown, which shall be subject to mutually
acceptable testing as set forth above, at the lesser of (i) the same price as
the to-be discontinued Product or Ancillary Product, as applicable, or (ii) the
new price for the replacement product. If no suitable replacement is provided to
Crown, Metawave shall continue to produce and sell the Products and/or the
Ancillary Products in question at the Purchase Price previously being paid by
Crown.
5 INTELLECTUAL PROPERTY RIGHTS
Following the Effective Date, any Intellectual Property Rights (other than any
Intellectual Property Rights that are licensed to Metawave pursuant to Section
6.1 below) developed with respect to the SmartShare System, the Products and the
Ancillary Products
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developed or sold under this Agreement by Metawave shall be the property of
Metawave unless Crown can rebut such presumption of ownership in accordance with
applicable law.
6 LICENSES/BANKRUPTCY
6.1 License to Metawave. Crown hereby grants to Metawave an irrevocable,
non-exclusive, perpetual, worldwide license to the Intellectual Property Rights
of Crown disclosed to Metawave and utilized in the Products, Ancillary Products
and the SmartShare System developed and sold by Metawave pursuant to this
Agreement for the purposes of developing, testing, making, having made, using,
copying, enhancing, modifying, preparing derivative works, selling,
distributing, supporting and servicing Products, Ancillary Products and related
services. Metawave hereby agrees that it shall not utilize any patent that it
may acquire utilizing the Intellectual Property Rights of Crown to prevent Crown
from using, enhancing, creating derivative works, adapting, marketing, selling,
leasing or licensing any of Crown's Intellectual Property Rights or any products
or services made or offered by Crown or any upgrades, enhancements, adaptations
or derivative works thereof created by Crown.
6.2 License to Crown. Metawave hereby grants to Crown an irrevocable,
non-exclusive, perpetual, worldwide license to use, support, market, sell (to
the extent any telecommunications sites containing the Products and Ancillary
Products are sold or transferred to other parties), license or sublicense the
use of, lease, sublease and enhance the Products and Ancillary Products
purchased by Crown under this Agreement and to market and re-sell the
Personality Cards purchased by Crown from Metawave under this Agreement.
6.3 Escrow. The parties shall use reasonable commercial efforts to establish an
escrow with a mutually agreeable escrow agent ("Escrow Agent") by no later than
thirty days following the Effective Date. The escrow shall include all
information available to Metawave which is reasonably necessary for Crown to
design, develop and manufacture and support, as applicable, the SmartShare
System, including but not limited to the design packages and documentation
relating to the manufacturing processes (the "Design Package"), for the
Prototypes, the Initial Commercial Products and the Products (including the
SmartShare System and its components such as the Ancillary Products) to be
purchased by Crown from Metawave under this Agreement. The escrowed Design
Packages shall be released to Crown for its use (on the terms and conditions set
forth in that Design Package Escrow Agreement, the form of which is attached
hereto as Exhibit F (the "Escrow Agreement")), in the event that Metawave has
voluntarily filed for bankruptcy or involuntarily been placed in bankruptcy
proceedings and if, at the time of such bankruptcy, the Products have been or
are being manufactured, and Metawave does not continue to sell the Products and
Ancillary Products to Crown as required under this Agreement. If, however, the
Products and Ancillary Products have not been produced prior to the time of such
bankruptcy, the escrow shall be immediately released to Crown. Metawave shall
deposit a Design Package with the Escrow Agent upon execution of the
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Escrow Agreement and thereafter update the Design Package on the first day of
each subsequent calendar month until the first Tranche of Products in the
Initial Order are delivered to Crown; provided, however, that if there are no
updates to the Design Package since the immediately preceding monthly escrow
deposit, Metawave shall provide Crown with a written letter from an authorized
officer attesting to such fact, thereby relieving Metawave from its obligation
to update the Design Package for the month in question only. Following the
delivery of the first Tranche of Products in the Initial Order, Metawave shall
update the escrowed Design Packages as often as necessary, but in any event at
least every six months, so that the escrow contains the most current version of
the Design Packages for the Products and Ancillary Products to enable Crown to
design, develop and manufacture, as applicable, such items for the uses
contemplated in this Agreement; provided, however, that if there are no updates
to the Design Package since the immediately preceding escrow deposit, Metawave
shall provide Crown with a written letter from an authorized officer attesting
to such fact, thereby relieving Metawave from its obligation to update the
Design Package for the period in question only. If Crown exercises its right to
effect the release of the Design Package pursuant to the Escrow Agreement,
Metawave shall confirm in writing, within five days from the exercise of such
right, that the escrowed version of the Design Package is the most current
version of the Design Package or, if such escrowed version does not contain the
most current version of the Design Package, Metawave shall provide the most
current Design Package to the Escrow Agent within five days from such exercise.
Metawave will grant to Crown a license to Metawave's Intellectual Property
Rights to the extent and under the conditions as set forth in the Design Package
Escrow Agreement.
6.4 Bankruptcy Protection. The licenses granted herein and the Escrow Agreement
shall be deemed to be, for purposes of Section 365(n) of the U.S. Bankruptcy
Code (the "Bankruptcy Code"), licenses to rights in "intellectual property" as
defined in Section 101 of the Bankruptcy.
6.5 Disclaimer of Additional Licenses. Except as explicitly provided in this
Agreement, no license rights in any Intellectual Property Rights are granted or
implied by either Party to the other Party under this Agreement. Notwithstanding
anything contained herein to the contrary, the licenses granted under this
Agreement shall not effect the confidentiality obligations of the parties under
Section 17.
7 TESTING AND VERIFICATION PROCEDURES
The Prototype Performance Criteria, Product Performance Criteria and the
verification procedures for testing the Prototypes and Initial Commercial
Products are as set forth in Exhibit C in general terms. Metawave and Crown
shall hereafter jointly define in detail the Prototype Performance Criteria,
Product Performance Criteria, responsibilities of the Parties, schedule, sweep
test and verification procedures during the course of the development activity.
Crown shall have the right and option, at its expense, to have an independent
party, who will be subject to a confidentiality agreement and be approved by
Metawave, which approval shall not be unreasonably withheld, conditioned or
delayed, to
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be present at and involved in the Prototype Field Testing and the Initial
Commercial Product testing. Metawave and Crown will jointly prepare a mutually
acceptable testing plan and perform the Prototype Field Testing and Initial
Commercial Product testing at up to two United States sites to be mutually
agreed upon. Metawave and Crown shall mutually agree on the selected carriers
and sites to be used during such testing. Crown will use commercially reasonable
efforts to obtain approvals from and agreement with Crown's customers, tower
owners, and any regulatory organizations required to accomplish or to be
involved in such testing. Upon delivery of the Prototypes and the Initial
Commercial Products for testing, Metawave shall also deliver appropriate
documentation relating to the assembly, installation and use of the same.
8 PRODUCT PURCHASE
8.1 Initial Order. Simultaneously with the execution of this Agreement and
Exhibits D and E, Crown will issue the Initial Order, which shall be subject to
the terms and conditions of this Agreement. Unless a different time period is
otherwise agreed to by the parties, ninety (90) days before the anticipated ICP
Delivery Date, Metawave will confirm to Crown in writing its intent to deliver
the Initial Commercial Products by such ICP Delivery Date (the date on which
Crown receives such written confirmation from Metawave shall be referred to
herein at the "ICP Confirmation Date"). Upon receipt of such confirmation, Crown
shall have five (5) business days to either (i) indicate Crown's acceptance of
the anticipated ICP Delivery Date, thereby waiving all rights to cancel or
terminate the Initial Order except as otherwise expressly permitted in this
Agreement, (ii) indicate Crown's rejection of the anticipated ICP Delivery Date
and cancel the Initial Order and this Agreement (the "Crown ICP Date
Termination"), in which event Crown shall have no liability to Metawave,
including no liability for Metawave's development, production or other costs
associated with this Agreement, or (iii) indicate Crown's acceptance of the
anticipated ICP Delivery Date, but with Crown's election to reduce the quantity
of Products in the Initial Order from 300 to 100 Products, thereby waiving all
rights to cancel or terminate the Initial Order except as otherwise expressly
permitted in this Agreement. The Parties acknowledge that Crown shall not be
obligated to purchase any Products (i.e. Crown will not be obligated to perform
its obligations under the Initial Order or any subsequent Purchase Orders) if
the Initial Order is cancelled by Crown within 5 business days after the ICP
Confirmation Date and that Metawave shall not be liable for any late delivery
fees or Liquidated Damages in such case. Notwithstanding anything to the
contrary contained in this Agreement, Crown shall not be obligated to order any
Tenant Expansion Kits or PCS Expansion Antennas as part of the Initial Order.
8.2 Performance Acceptance. The Performance Evaluation Period shall be subject
to any postponements due to (i) Force Majeure or (ii) delays attributable to
Metawave. In the event that the Performance Evaluation Period has not been begun
within thirty (30) days after the date the Initial Commercial Products are
delivered to Crown and such delay is not due to an event of Force Majeure, a
Metawave Event of Default or any other act or omission of Metawave, the
Exclusivity Period (as defined in section 8.3 hereof) will be reduced by a
number of days equal to the number of days of delay that come to pass after
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the 30th day of delay. If the Performance Evaluation Period has not begun within
sixty (60) days after the date the Initial Commercial Products are delivered to
Crown and such delay is not due to an event of Force Majeure, a Metawave Event
of Default or any other act or omission of Metawave, the Exclusivity Period (as
defined in section 8.3 hereof) will be cancelled in its entirety and no
additional extensions of the Exclusivity Period (as set forth in section 8.3.1)
shall be available to Crown.
Upon satisfaction of the Product Performance Criteria at any time during the
Performance Evaluation Period, Crown and Metawave shall execute a certificate of
Performance Acceptance (in the form set forth in Exhibit C). If Performance
Acceptance has been certified, to the extent that there are no uncured Events of
Default by either Party, both Parties will perform their obligations under the
Initial Order and Metawave shall issue an invoice to Crown for the amount due on
the Initial Commercial Products, which amount will be based on the Purchase
Prices set forth in Exhibit D. In the event that Performance Acceptance has not
been certified by the end of the Performance Evaluation Period, due to an Event
of Default by Metawave or an act or omission of Metawave, Metawave shall incur
an incremental late fee that will be assessed at the beginning of each week
after the end of the Performance Evaluation Period and calculated as a
percentage of the value of the Initial Order, subject to any changes made to the
Initial Order within five (5) business days following the ICP Confirmation Date,
as follows:
[***]
As an example, if Performance Acceptance occurs at any time during the sixth
week after the end of the Performance Evaluation Period, Metawave shall be
assessed a late fee equal to [***] of the value of the Initial Order, subject to
any changes made to the Initial Order within five (5) business days following
the ICP Confirmation Date. Any late fees that are assessed on Metawave pursuant
to this Section 8.2 shall be credited to the Initial Order Products purchased by
Crown, provided that Crown shall allocate such credits among the Products in the
Initial Order as it deems appropriate.
Furthermore, if Performance Acceptance has not occurred but Crown elects to
accept delivery of Products from Metawave, the late fees referenced above shall
accrue until the earliest of one of the following events occurs: (i) the end of
the sixth week following the end of the Performance Evaluation Period, (ii)
Performance Acceptance or (iii) a Product deployed by Crown for use by a
customer generates rental revenues for Crown. Notwithstanding Crown's acceptance
of Products during the period in which Performance Acceptance has not occurred,
Crown shall have the right to terminate this Agreement as set forth in the
following paragraph.
If Performance Acceptance does not occur by the end of the sixth week after the
end of the Performance Evaluation Period, Crown may, in its sole discretion, (i)
terminate this Agreement, in which case Metawave shall pay to Crown the
Liquidated Damages amount set forth in Section 14.4 (in lieu of late fees)
within five (5) days from the termination of the Agreement or (ii) accept the
accrued late fees and elect to purchase Products under
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the Commission. Confidential treatment has been requested with respect to
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the Initial Order until such date as Performance Acceptance occurs; provided,
that Crown shall continue to have the ability to terminate this Agreement with
no liability to Crown during such time as the Performance Acceptance has not
occurred. If Crown elects to not terminate the Agreement and proceed under
clause (ii) above, Metawave shall have the right to terminate the Agreement at
that time, provided, however, that Metawave shall pay to Crown the Liquidated
Damages amount set forth in Section 14.4 within five (5) days from the
termination of the Agreement.
If, however, the failure to achieve Performance Acceptance by the end of the
Performance Evaluation Period is the result of an Event of Default by Crown, or
an act or omission of Crown or its test customer(s) participating in the testing
of the Initial Commercial Products which interrupts such testing, or an event of
Force Majeure (a "Delay Event"), then such late fees shall not begin to accrue
until such Delay Event is cured, or if such late fees have already begun to
accrue, they will be suspended during the period that such Delay Event is not
cured. In addition, as soon as the Delay Event is discovered, any late fees that
may have accrued during the Delay Event shall be cancelled for the period that
the Delay Event was ongoing. The length of the Performance Evaluation Period
shall be extended by the number of days of the Delay Event(s). Once such Delay
Event is cured, such late fees shall begin to accrue, or continue to accrue, as
the case may be. This process shall apply for each separate Delay Event.
If Crown chooses to terminate this Agreement pursuant to this Section, Metawave
shall de-install such Initial Commercial Products at Metawave's risk and expense
and repair any reasonable damage to Crown's equipment at the site caused by
Metawave during installation and/or removal of the Initial Commercial Products.
Metawave shall arrange for and pay the costs of shipping and assume the risk of
loss and damage to the Initial Commercial Products during shipment back to its
headquarters in Redmond, Washington.
8.3 Crown Exclusivity. Except for the permitted actions contemplated in Section
8.3.2, Crown shall have the exclusive right to purchase the Prototypes, Initial
Commercial Products, Products and Ancillary Products from Metawave commencing on
the Effective Date and terminating ninety (90) days after the date of
Performance Acceptance (the "Initial Exclusivity Period"). Notwithstanding the
foregoing, if Crown elects to reduce the amount of the Initial Order to one
hundred (100) Products pursuant to Section 8.1, the Initial Exclusivity Period
shall be reduced to a period of sixty (60) days following the date of
Performance Acceptance.
8.3.1 Extensions of Initial Exclusivity Period. Crown may extend the
Initial Exclusivity Period by the delivery of Purchase Orders to Metawave for
additional Products and/or Ancillary Products as follows: If Metawave receives
Purchase Orders from Crown no later than 30 days prior to the end of the 90 day
Initial Exclusivity Period and such Purchase Orders (i) are for Products and/or
Ancillary Products valued in an amount no less than [***] pursuant to Exhibits D
and E, and (ii) specify delivery dates during the ninety (90) day period
following the end of the Initial Exclusivity Period, the Initial Exclusivity
Period shall be extended for an additional 90 days. If Metawave
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the Commission. Confidential treatment has been requested with respect to
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receives Purchase Orders from Crown no later than 30 days prior to the end of
the 60 day Initial Exclusivity Period and such Purchase Orders (i) are for
Products and/or Ancillary Products valued in an amount no less than [***]
pursuant to Exhibits D and E, and (ii) specify delivery dates during the
forty-five (45) day period following the end of the Initial Exclusivity Period,
the Initial Exclusivity Period shall be extended for an additional forty-five
(45) days.
8.3.2 Permitted Actions. Subject to the rights of Crown contained in
this Agreement, the Parties agree that during the Initial Exclusivity Period,
and any extensions thereof pursuant to Section 8.3.1 hereof, Metawave will have
the right to enter into sales agreements (conditional or otherwise), field trial
agreements, and binding purchase orders for the Products and Ancillary Products
with other customers, and to deliver a maximum of two Products (together with
the related quantity of Ancillary Products) to each interested customer to
perform testing, evaluations and field trials of such Products and Ancillary
Products, it being expressly acknowledged by the Parties that Metawave shall not
otherwise deliver Products and Ancillary Products to its customers until after
the Initial Exclusivity Period, together with any extensions, has expired.
8.4 Crown Requirements. Throughout the Term, Crown shall have the preferential
right to purchase one hundred percent (100%) of its requirements for the
Ancillary Products and Products (subject to the terms of Section 9.1 hereof)
through issuance of Purchase Orders under this Agreement (not to exceed
Metawave's and its subcontractors' total production capacity, provided, however,
that the lack of production capacity shall not excuse or mitigate Metawave's
obligation to timely deliver Products and Ancillary Products or pay late fees or
Liquidated Damages as required under this Agreement); provided however, that
Crown shall lose the preferential purchase right set forth in this Section 8.4
if Crown fails to submit Purchase Orders for at least 80% of the first quarter
of each Crown Forecast (which shall be updated quarterly on a rolling
four-quarter basis) for two successive quarters. After losing its preferential
purchase right as set forth above, Crown shall only regain such preferential
purchase right by issuing Purchase Orders in excess of 80% of the first quarter
of each Crown Forecast (which shall be updated quarterly on a rolling
four-quarter basis) for two successive quarters.
8.5 Pricing. Exhibits D and E set forth "Not to Exceed" (NTE) pricing for the
purchase of the Products and Ancillary Products. The NTE pricing will be
converted to firm fixed pricing following the completion of the Prototype Field
Testing, which shall be jointly established by the Parties: (i) in accordance
with reasonable standard pricing practices, (ii) taking into account volume
pricing and Crown's discounted pricing from standard list prices and (iii) which
are based on variations in the NTE pricing that are a direct result of
modifications which are jointly defined and agreed upon by the Parties and
incorporated into the final Products and Ancillary Products during the
development and testing process; provided, that Metawave shall inform Crown in
advance as to how the proposed modifications will impact the NTE pricing. Upon
completion of the Prototype Field Testing, the Parties shall review and if
necessary may consent to an
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increase or decrease in the NTE pricing based upon variations that are a direct
result of mutually agreed modifications or design changes, such consent not to
be unreasonably withheld by the Parties. For the avoidance of doubt, unless
mutually agreed to by the parties, in no event shall the firm fixed pricing for
the final Products and Ancillary Products exceed the NTE pricing.
8.6 Crown Most Favored Customer. During the Term, Metawave shall treat Crown as
its most favored customer with respect to the Products and Ancillary Products.
Metawave represents that, the firm fixed prices, including discounts, and
delivery terms (as set forth in Sections 9.1 and 9.4) offered to Crown will be
no less favorable than the lowest firm prices, including discounts, and shortest
delivery terms offered by Metawave to any present or future customer (excluding
Affiliates of Metawave, provided that (i) such Products and Ancillary Products
are resold by such Affiliates on a retail basis and (ii) such sales are not used
as a means to circumvent Metawave's obligations to or the preferential rights of
Crown under this Agreement), without regard to and irrespective of any other
commercial terms agreed to by such other customers, including the quantity,
manner of bundling, or timing for delivery, of Products and/or Ancillary
Products to be purchased by such customer. If, during the Term, Metawave enters
into any other agreements or purchase orders to supply the Products or Ancillary
Products to other Metawave customers at more favorable prices, including
discounts, or delivery terms than those offered to Crown under this Agreement,
then Metawave shall within thirty (30) calendar days after entering into such
agreement or purchase order, as applicable, notify Crown of such fact, and offer
Crown the more favorable terms (and in addition thereto, any applicable Crown
discounts). Crown shall have the right to accept or decline the more favorable
terms; if accepted, this Agreement and all applicable orders following the
effective date of the more favorable price, including discounts, or delivery
terms and this Agreement shall be automatically amended to provide the more
favorable pricing, including discounts (and in addition thereto, any applicable
Crown discounts) and/or delivery terms. Notwithstanding the foregoing, if
Metawave, during the first six months following Performance Acceptance, enters
into any other agreements or purchase orders to supply the Products or Ancillary
Products to other Metawave customers at more favorable prices, including
discounts, or delivery terms than those offered to Crown under this Agreement,
this Agreement and all applicable orders following the effective date of the
more favorable price offering shall be automatically amended to provide Crown
with the more favorable pricing, including discounts (and in addition thereto,
any applicable Crown discounts), effective retroactively; provided, however,
that if this Agreement is no longer in effect at such time, Crown shall have the
option to credit such amount to any other Metawave products purchased by Crown,
if any, or to receive a refund equal to such difference within thirty (30) days
of its request. If, as a result of an audit conducted by Crown under Section
11.5, Metawave is found to have violated this section of the Agreement, this
Agreement and all applicable orders following the effective date of the more
favorable price offering shall be automatically amended to provide Crown with
the more favorable pricing (and in addition thereto, any applicable Crown
discounts), effective retroactively and Metawave will provide to Crown on future
purchases a credit equal to the difference between any favorable price and any
price
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invoiced and paid by Crown within twelve months prior to the more favorable
pricing, provided, however, that if this Agreement is no longer in effect at
such time, Crown shall have the option to credit such amount to any other
Metawave products purchased by Crown, if any, or to receive a refund equal to
such difference within thirty (30) days following the release of the auditor's
findings.
9 PURCHASE ORDERS
9.1 SmartShare System Purchase Order Submission. (a) Subject to the terms of
this Section 9, Crown shall order Products pursuant to this Agreement by
submitting a Purchase Order that provides the information specific to the order,
including the quantity of Products to be ordered, the price of each Product per
Exhibit D, the desired delivery date(s), the delivery destination, and whether
partial shipments are acceptable.
(b) With respect to the Initial Order (excluding the Initial Commercial
Products), if Crown orders 120% or more of the quantity of Products forecasted
in the Initial Change Order Forecast or Subsequent Change Order Forecast, as the
case may be, (i) Metawave shall deliver Products within 120% of the Initial
Change Order Forecast or Subsequent Change Order Forecast, as the case may be,
by the delivery dates specified by Crown for such Products, and the late fees
contemplated in Section 10.6.2 will be assessed for any late delivered Products
and (ii) use best efforts to deliver the Products in excess of 120% of the
Initial Change Order Forecast or Subsequent Change Order Forecast, as the case
may be, by the required delivery date specified by Crown and, if not possible,
propose revised delivery dates for such Products, which dates shall be mutually
agreed to by the Parties, and Metawave will be assessed late fees as
contemplated in Section 10.6.2 for Products not delivered by the revised
delivery dates. If Crown orders less than 80% of the quantity of Products
forecasted in the Initial Change Order Forecast or Subsequent Change Order
Forecast, as the case may be, Crown shall be obligated to purchase that quantity
of Products that is less than the 80% of the quantity of Products forecasted in
the Initial Change Order Forecast or Subsequent Change Order Forecast, as the
case may be.
(c) With respect to Follow-on Orders, Purchase Orders for quantities of
Products that are within 110% of the Crown Forecast shall be submitted by Crown
to Metawave at least forty-five (45) days prior to the required date of delivery
of such Products. Crown shall submit to Metawave any Purchase Orders for
Products that exceed the amounts included within the Crown Forecast by more than
110% at least ninety (90) days prior to the required date of delivery for the
excess Products. Metawave shall (i) deliver Products within 110% of the Crown
Forecast by the required delivery date specified on the Purchase Order, and (ii)
deliver the Products in excess of 110% of the Crown Forecast by the required
delivery date specified on the Purchase Order, unless Metawave proposes a
revised delivery date for such Products (as set forth in Section 9.3) acceptable
to Crown that is sooner than the required delivery date specified on the
Purchase Order.
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(d) Notwithstanding any of the foregoing, the Parties expressly
acknowledge and agree that the Purchase Orders referenced in this Section 9.1
shall expressly exclude Tenant Expansion Kits, which shall be ordered, delivered
and forecast in accordance with Sections 9.4, 9.6(d) and 9.7 below.
9.2 Ancillary Product Purchase Order Submission. Crown shall order Ancillary
Products pursuant to this Agreement by submitting a Purchase Order that provides
the information specific to the order, including the quantity and specifications
for the Ancillary Products to be ordered, the price of each Ancillary Product
per Exhibit E, the desired delivery date(s), the delivery destination, any other
information required in Exhibit E, and whether partial shipments are acceptable.
Metawave shall ship the Ancillary Products within the time periods specified in
Exhibit E.
9.3 Notice of Certain Late Purchase Orders. Upon receipt of a Purchase Order for
Products (other than the Initial Order), Metawave shall have five (5) business
days to provide Crown with notice of its ability or inability to deliver the
requested quantity of Products by the requested delivery date. Such notice shall
include a statement of what quantity of the Products Metawave will be able to
provide by the requested delivery date and the proposed delivery date for the
remainder of the ordered Products. Notwithstanding Crown's receipt of any notice
relating to late deliveries, with respect to Products ordered pursuant to
Section 9.1 that are not delivered by the Crown specified delivery date in the
Purchase Order, Metawave will be assessed late fees as contemplated in Section
10.6 for late delivered Products. With respect to Products that are in excess of
110% of the Crown Forecast and are ordered pursuant to Section 9.1, to the
extent Metawave proposes revised delivery dates that are sooner than those
required by Crown in the Purchase Order, Crown shall provide Metawave with
notice of its acceptance or rejection of any such revised delivery dates within
five (5) business days. If Crown accepts a revised delivery date, Metawave will
be assessed late fees as contemplated in Section 10.6 for any Products that are
not delivered by the revised delivery date.
9.4 Tenant Expansion Kit Purchase Order Submission. Crown shall submit Purchase
Orders for quantities of Tenant Expansion Kits to Metawave at least thirty (30)
days prior to the required date of delivery for such Tenant Expansion Kits, and
Metawave shall deliver such Tenant Expansion Kits by the original delivery dates
required by Crown in such Purchase Orders, except as may otherwise be permitted
pursuant to clause (iii) below. Upon receipt of a Purchase Order for Tenant
Expansion Kits, Metawave shall have two (2) business days to (i) confirm in
writing the delivery of the Tenant Expansion Kits by the original delivery date
requested by Crown; (ii) confirm in writing its inability to deliver the Tenant
Expansion Kits by the original delivery date requested by Crown and propose an
alternative delivery date (or multiple delivery dates in the case of partial
shipments) for delivery of the Tenant Expansion Products, or (iii) confirm in
writing the delivery of the Tenant Expansion Kits by an alternative delivery
date that is sooner than the delivery date originally requested by Crown. With
respect to the matter in clause (iii) above, Crown shall provide Metawave with
notice of its acceptance or rejection of the alternative delivery date(s) within
two (2) business days. Notwithstanding any notice
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from Metawave of its inability to deliver the Tenant Expansion Kits as
contemplated in clause (ii) above, Tenant Expansion Kits that are not delivered
by the original delivery date requested by Crown in the Purchase Order or by the
alternative delivery dates accepted by Crown pursuant to clause (iii) shall
accrue late fees as set forth in Section 10.6.
9.5 Cancellation Fees. Except for the Initial Order (which shall be cancelable
only in accordance with the terms of this Agreement), Crown may cancel Purchase
Orders for Products and Ancillary Products, subject to the following
cancellation fees, which are based on the number of days in advance of the
scheduled shipment date that Crown notifies Metawave of cancellation, and which
are a percentage of the cancelled Products' or Ancillary Products', as
applicable, Purchase Price.
Days Before Ship Date Cancellation Fee
--------------------- ----------------
More than 15 days [***]
Less than 15 days [***]
9.6 Delivery and Shipping; Change Orders. (a) In order to be considered a valid
Purchase Order, delivery dates and locations must be specified on the face of
any Purchase Order, except as otherwise permitted in Section 9.6(d). If not so
specified (except as otherwise permitted in Section 9.6(d)), Metawave shall be
under no obligation to accept the Purchase Order and shall not fabricate any of
the Products covered by any Purchase Order after the Initial Order or procure
any of the materials required for their fabrication, or ship any such Products
or Ancillary Products to Crown. Crown shall have no responsibility for Products
or Ancillary Products for which written delivery instructions were not provided.
Shipments in excess of those specified on a Purchase Order may be returned to
Metawave at Metawave's expense.
(b) With respect to the Initial Order, Crown may make changes to the
Product mix for the entire Initial Order and specify the destination and
delivery dates for the Products in the Initial Order by issuing change orders at
least 45 days prior to the specified delivery dates within the 30-day period
during which the Tranche in question will be delivered.
(c) With respect to Follow-On Orders (not including Follow-on Orders for
PCS Expansion Antennas and related Tenant Expansion Kits for adding a 3rd or 4th
PCS tenant to a Product), Crown may change delivery dates (such resulting change
shall not exceed sixty (60) days from the original delivery date) and
destinations specified in any Purchase Order up to five (5) days prior to the
delivery date with no penalty to Crown, provided that changes to delivery dates
shall be limited to one occurrence per Purchase Order.
(d) With respect to Follow-on Orders for PCS Expansion Antennas and
related Tenant Expansion Kits for adding a 3rd or 4th PCS tenant on a Product,
Crown shall specify the destination and delivery date for the PCS Expansion
Antenna pursuant
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to Section 9.1, but Crown shall not be obligated to specify a destination or
delivery date for the Tenant Expansion Kits in such Follow-on Order. Instead,
Crown will have sixty (60) days from the date of such Follow-on Order to specify
the destination and delivery date for such Tenant Expansion Kits pursuant to
Section 9.4.
9.7 Crown Forecasts. As soon as practicable following completion of Performance
Acceptance, but in any event no later than forty five (45) days thereafter,
Crown shall give Metawave a rolling four quarter Crown Forecast for the
projected quantity of Products to be ordered by Crown pursuant to Follow-On
Orders. The Crown Forecast shall include the quantity of Product required by
Crown for the first full quarter immediately following the delivery of the
Initial Order and the next three (3) quarters thereafter. Crown shall update the
Crown Forecast on a quarterly basis during the Term, providing such updated
Crown Forecast to Metawave no later than ten (10) business days prior to the
beginning of each new quarter to which such Crown Forecast applies. Crown shall
also forecast its requirements for Tenant Expansion Kits in the Crown Forecasts,
it being expressly acknowledged and agreed by Metawave that such forecast is
non-binding and that the failure to accurately forecast such needs will not
constitute a breach of this Agreement, and furthermore that Crown shall not
forfeit any of its rights under this Agreement or in any way be penalized for
its failure to accurately forecast its requirements for Tenant Expansion Kits.
9.8 Forecasts for Products included in the Initial Order. In addition to the
Crown Forecasts contemplated in Section 9.7 above, Crown shall issue a
non-binding forecast, as may be amended (the "Initial Change Order Forecast"),
within 5 business days after the ICP Confirmation Date with respect to the
Product mix (i.e., the quantity of both the 2+2 Product and the PCS Product)
needed in the first Tranche of Products ordered pursuant to the Initial Order
(excluding the Initial Commercial Products). Thereafter, with respect to the
remaining Tranche(s) of Products in the Initial Order, Crown shall provide
Metawave with a non-binding forecast ninety (90) days in advance of the
anticipated delivery dates within the thirty (30) day period during which the
remaining Tranche(s) of Products ordered pursuant to the Initial Order will be
delivered (each such forecast, as may be amended, shall be referred to herein as
a "Subsequent Change Order Forecast"). Notwithstanding the foregoing, if
Performance Acceptance is not achieved during the Performance Evaluation Period,
Crown shall have the right to amend each forecast contemplated in this Section
as necessary and issue additional change orders for all the Products in the
Initial Order at least 45 days prior to the specified delivery dates within the
30-day period during which the Tranche in question will be delivered. Metawave
expressly acknowledges and agrees that the Initial Change Order Forecast and
Subsequent Change Order Forecast(s) are non-binding and that failure to
accurately forecast its Product requirements for the Initial Order will not
constitute a breach of this Agreement, and furthermore that Crown shall not
forfeit any of its rights under this Agreement or in any way be penalized for
its failure to accurately forecast its requirements for Products in the Initial
Order, except as otherwise expressly contemplated in Section 9.1(b). Change
orders for the Initial Order shall be submitted as set forth in Section 9.6(b).
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10 SHIPPING/TITLE/RISK OF LOSS
10.1 Shipment. Metawave shall ship Products and Ancillary Products in accordance
with industry standard shipping practices (unless otherwise instructed by Crown)
to the location designated in a Purchase Order for delivery on or before the
delivery date(s) specified in a Purchase Order, subject to the terms of Sections
9.1, 9.2, 9.3 and 9.4, and render invoices in accordance with Section 11.1. Late
deliveries of Products and Ancillary Products shall incur late fees as set forth
in Section 10.6 below. Crown is responsible for the payment of all shipping and
freight insurance charges. Metawave shall pack products in containers adequate
to prevent damage during reasonable shipping, handling and storage. All
shipments shall be marked and packed so as to secure the lowest transportation
rates. Shipments shall be routed to the shipping address on the Purchase Order,
or as otherwise instructed by Crown in writing in accordance with Section 9.6.
Metawave shall reimburse Crown for all direct expenses incurred by Crown as a
result of improper packing, marking or routing. A packing slip shall accompany
each shipment, enclosed in a package marked "Packing Slip Inside". The packing
slip and other shipping documents shall bear the applicable Purchase Order
Number and shipping destination.
10.2 Premium Shipments. If, because of Metawave's failure to meet the delivery
requirements for any Purchase Order in accordance with this Agreement, Crown
finds it necessary to require shipment of any of the Products or Ancillary
Products covered by a Purchase Order by a different method of transportation
than that originally specified, Metawave shall pay the additional shipping,
handling and other charges associated therewith, which shall not exceed the
costs of express shipment in accordance with customary shipping methods.
10.3 Inspection. Crown shall inspect all Products and Ancillary Products shipped
by Metawave and, unless rejected in writing within ten (10) days of delivery,
such Products and Ancillary Products, as applicable, shall be deemed accepted by
Crown. Rejected Products and Ancillary Products will be returned to Metawave
and/or repaired or replaced within a reasonable time acceptable to Crown. If,
upon inspection, Crown locates a patent defect, which is discernable by visual
inspection, Crown will notify Metawave. If the Parties determine that testing is
required to determine the nature, extent or existence of such defect, and if the
Parties determine that Crown will perform such testing, then Metawave will
reimburse Crown for testing expenses incurred if such testing reveals a defect.
If the parties determine that the defect requires shipment of the Products or
Ancillary Products to Metawave, Crown shall provide notice to Metawave that it
is returning the Products or Ancillary Products to Metawave and Metawave shall
reimburse Crown for all shipping expenses for such shipment. Crown shall return
the Products or Ancillary Products in the original shipping container or in a
container that provides reasonably equivalent protection. Metawave shall use
reasonable efforts to provide either repaired or replacement Products and
Ancillary Products as soon as possible to meet Crown's original delivery
requirements. Metawave shall ship such repaired or replacement Products or
Ancillary Products to Crown at Metawave's sole expense and
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risk.
10.4 Liens. All Products and Ancillary Products to be delivered hereunder and
all property to be returned to Crown shall be free and clear of any and all
liens and encumbrances whatsoever.
10.5 Title and Risk. Title to and risk of loss or damage to Products in the
Initial Order and all Follow-on Orders, as well as Ancillary Products, shall
pass to Crown upon shipment of the Products or the Ancillary Products, as
applicable.
10.6 Late Delivery Charges. The delivery of all Products and Ancillary Products
shall be subject to a late delivery charge in the event delivery of the Products
and Ancillary Products does not occur on the required delivery dates.
10.6.1 Initial Commercial Products. In the event that the Initial
Commercial Products are not delivered by the ICP Delivery Date, Metawave
shall incur an incremental late fee that will be assessed at the
beginning of each week after the ICP Delivery Date and will [***],
subject to any changes made to the Initial Order within five (5)
business days following the ICP Confirmation Date, as follows:
[***]
As an example, if the Initial Commercial Products are delivered to Crown
at any time during the fifth week after the ICP Delivery Date, Metawave
shall be assessed a late fee equal to [***] of the [***] of the Initial
Order, subject to any changes made to the Initial Order within five (5)
business days following the ICP Confirmation Date. Any late fees that
are assessed on Metawave pursuant to this Section 10.6.1 shall be
credited to Initial Order Products purchased by Crown, provided that
Crown shall allocate such credits among the Products in the Initial
Order as it deems appropriate (provided, however, that if this Agreement
is no longer in effect at such time, Crown shall have the option to
credit such amount to any other Metawave products purchased by Crown, if
any, or to receive a [***] within thirty (30) days of its request). If,
however, the Initial Commercial Products have not been delivered to
Crown within six (6) weeks after the ICP Delivery Date, Crown may, in
its sole discretion, terminate the Initial Order, any Follow-on Orders,
and this Agreement, in which case Metawave shall pay to Crown the
Liquidated Damages amount set forth in Section 14.4. The Liquidated
Damages shall be paid to Crown within five (5) days from the termination
of the Agreement.
10.6.2 Initial Order and Follow-on Orders. In the event that Products
ordered by Crown in accordance with a Purchase Order for the Initial
Order (other than the Initial Commercial Products and except as
expressly set forth in Section 9.1(b)) or Follow-on Orders are not
delivered by the specified delivery dates in accordance with Sections
9.1, 9.3 and 9.4, as applicable, Metawave shall incur an incremental
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with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
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late fee that will be assessed at the beginning of each week after the
specified delivery date as follows:
[***]
With respect to Ancillary Products that are not delivered by the
delivery date in accordance with Section 9.2, Metawave will incur an
incremental late fee that will be assessed at the beginning of each week
after the specified delivery date as follows:
[***]
The late fees assessed pursuant to this Section 10.6.2 shall apply to
each separate Product or Ancillary Product in a Purchase Order that is
delivered late, but will not exceed [***] for each such Product or
Ancillary Product, as applicable, in the Purchase Order that is
delivered late. As an example, if any Products or Ancillary Products
covered by the Initial Order (other than the Initial Commercial
Products) or any Follow-On Order are delivered to Crown at any time
during the fourth week after the specified delivery date, Metawave shall
be assessed a late fee of [***] of the Purchase Price for each Product
or Ancillary Product, as applicable, that is delivered late in the
Purchase Order in question. Any late fees that are assessed on Metawave
pursuant to this Section 10.6.2 shall be credited to the purchase of
that Product and or Ancillary Product, as the case may be, and shall be
deducted on the invoice for such Product or Ancillary Product (provided,
however, that if this Agreement is no longer in effect at such time,
Crown shall have the option to credit such amount to any other Metawave
products purchased by Crown, if any, or to receive a refund equal to
such difference within thirty (30) days of its request).
If, after four (4) weeks the late Products in question have not been
delivered, Crown may, at its option, cancel the Purchase Order in
question and/or terminate this Agreement; provided, however, that the
cancellation of a Follow-on Order or termination of the Agreement due to
cancellation of a Follow-on Order by Crown shall not obligate Metawave
to pay the Liquidated Damages contemplated in Section 14.4, but Metawave
will be required to pay the accrued late fees; and further provided,
that Crown will not be penalized pursuant to Section 8.4 for failing to
issue Purchase Orders for at least 80% of the forecasted Products in the
Crown Forecast during the subsequent quarter.
If, after two (2) weeks the late Ancillary Products in question have not
been delivered, Crown may, at its option, cancel the Purchase Order in
question, but Metawave will still be required to pay the accrued late
fees.
11 INVOICES AND PAYMENT
11.1 Metawave Invoices. For Products in the Initial Order (except for the
Initial
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Commercial Products) and for Products and Ancillary Products in the Follow-on
Orders, Metawave shall render invoices for one hundred percent (100%) of the
Purchase Price of each Product and Ancillary Products upon shipment of same to
Crown.
11.2 Payment of Invoices. All invoices shall be computed on the basis of the
prices set forth in Exhibits D and E (including any applicable discounts) and
shall separately identify categories of charges, including quantities of
Products and/or Ancillary Products, total amounts for each item, shipping
charges, applicable sales or use taxes and the total amount due. Crown shall
promptly pay Metawave the amount due within thirty (30) days of the date of the
invoice, except for PCS Expansion Antennas and the related Tenant Expansion Kits
for adding a 3rd or 4th PCS tenant to a Product, which shall be paid within
forty-five (45) days from the date of invoice. Crown shall pay a late fee at the
rate of [***] adjusted on a quarterly basis for each month or portion thereof
that the amount remains unpaid on such date after Crown's receipt of notice of
such past due amounts and expiration of any applicable cure periods.
11.3 Taxes. Crown shall be responsible for the payment of all sales, use and any
other taxes applicable to the sales of the Products and Ancillary Products
purchased by Crown under this Agreement, excluding any income or franchise
taxes, and shall be added as a separate item on Metawave's invoices to Crown.
When Metawave is required by law to collect such taxes, 100% thereof will be
added to invoices as separately stated charges and paid by Crown in accordance
with this Section. Metawave shall indemnify, defend and hold harmless Crown from
any claims arising from Metawave's failure to pay any collected taxes to the
applicable authority.
11.4 Use. The Products, Ancillary Products and services contracted for herein
are to be for the use of Crown, its Affiliates and/or its or their customers.
All Products and Ancillary Products may be subjected to further processes of
manufacture combined with any articles, or put to any articles, or put to any
use whatsoever, by Crown, its Affiliates or its or their customers, as it or
they may elect, and in no event shall any claim for royalty or other additional
compensation be made by Metawave by reason of such manufacture, combination or
use.
11.5 Audit. Crown shall have the right to request to review, and Metawave shall
make available at its office during normal business hours, after reasonable
advance request, any Metawave sales agreement for the Products and Ancillary
Products and related books and records (collectively, the "Sales Documents") to
confirm Metawave's compliance with Crown's preferential rights as set forth in
this Agreement; provided, however, that Metawave can redact from the Sales
Documents any information that may identify a customer or that is not relevant
to the subject matter of the audit, provided that Metawave shall provide a brief
list and description of the sections and topics so redacted. To the extent there
are any discrepancies between Crown's preferential rights under this Agreement
and the provisions of other Sales Documents, the Parties shall meet in an
attempt to resolve such discrepancies. To the extent that such matters cannot be
resolved within a reasonable period of time, Crown shall have the right to
request an independent
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review by a public accountancy firm not otherwise affiliated or engaged by Crown
(of Crown's selection) of the Sales Documents to verify Metawave's compliance
with the terms of this Agreement. In the alternative, Crown may elect to use an
independent party who has expertise in telecommunications equipment sales, for
such a review. Such independent party shall not be an employee, former employee,
contractor or affiliate of either company. The reviewer shall be required to
sign a Non-Disclosure Agreement and shall be provided with the Sales Documents.
Following a review of the Sales Documents, the reviewer shall provide Crown and
Metawave with an assessment of whether any Sales Documents for the Products or
Ancillary Products, contain terms that contravene Crown's preferential rights
under this Agreement. In the event that the independent reviewer determines that
the terms in the Sales Documents are more favorable or contravene the
preferential terms of this Agreement, then Metawave shall pay all expenses
associated with the independent review. In the event that the independent review
does not determine that any Sales Document contravenes the preferential terms of
this Agreement, then Crown shall pay all costs associated with the independent
review. If this Agreement is completely or partially terminated, the records
relating to the work terminated shall be made available to Crown for two (2)
years after such termination, subject to applicable law and Metawave's written
corporate document retention policies. Crown shall be able to exercise its audit
rights hereunder with respect to (i) Section 8.6 of this Agreement at any time
and (ii) Crown's other preferential rights under this Agreement once in a given
calendar year.
12 WARRANTY
12.1. Warranty. Metawave warrants the Products for the Warranty Period. During
the Warranty Period, Metawave warrants that (i) all Products furnished hereunder
will be free from defects in materials, workmanship and title; and (ii) all
Products as delivered and properly installed and operated will function and
perform substantially as described in the Product Specifications set forth in
Exhibit B or in the instance of additional Products subsequently added to this
Agreement, the user documentation and specifications agreed between the Parties
and attached hereto as Exhibit B. THE WARRANTIES IN THIS AGREEMENT ARE GIVEN IN
LIEU OF ALL OTHER WARRANTIES EXPRESS OR IMPLIED WHICH ARE SPECIFICALLY EXCLUDED,
INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE OTHER THAN THOSE SET FORTH IN THE USER DOCUMENTATION
AND SPECIFICATIONS.
12.2 Defective Products. Crown shall send defective Products to Metawave at a
repair facility designated by Metawave. Such shipment of defective Products
shall be at Metawave's cost and expense, in the Products' original shipping
container or in a container that provides reasonably equivalent protection. If a
defective Product is shipped to or delivered to Metawave during the applicable
Warranty Period, Metawave will, at its sole option and expense, either repair or
replace such Product using new Products or materials to make such repair or
replacement, and will ship the repaired or
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replaced Product to Crown at Metawave's expense. If during any calendar quarter
during the Term more than twenty percent (20%) of the Products returned to
Metawave meet the Product Specifications or are not defective within the terms
of the applicable warranty as reasonably determined by Metawave's testing (which
testing methods shall be subject to Crown's reasonable approval), Crown shall
bear the cost of return shipment of all such Products from Metawave's repair
facility to Crown. This Section states Crown's sole remedy, and Metawave's sole
liability, arising out of the warranties provided by Metawave herein. This
warranty does not apply to any claim which arises out of any of the following:
(i) the Product is not used in accordance with its intended use or is combined
with articles with which it is not intended to be combined; (ii) the Product has
been subject to misuse, accident, neglect or damage by Crown, other than
ordinary wear and tear; (iii) unauthorized alterations or repairs have been made
to the Product, or parts have been used in the Product which are not approved by
Metawave; (iv) the Product is not materially maintained pursuant to Metawave's
maintenance programs (a copy of which will be provided to Crown) and such
failure resulted in the damage; (v) an event of Force Majeure has occurred
unless such event was caused by the Product; or (vi) the failure of third party
antennas, antenna lines or interconnection facilities not provided by Metawave
at the site.
12.3 Warranty Enforcement. Crown shall have the right to enforce any warranty
that Crown receives from Metawave on the Products on its behalf and on behalf of
any third party leasing, licensing, using or purchasing the Products from Crown.
Crown shall also have the right to assign its warranty rights to any such third
parties, and Crown shall provide reasonable notice to Metawave of the assignment
of any such warranty rights; provided, however, that Crown shall have no
obligation to provide Metawave with any such notice as it relates to Personality
Cards.
12.4 Ancillary Products. For purposes of this Section 12, the term "Products"
shall also include the Ancillary Products so that the rights and obligations of
the Parties set forth in this Section also encompass the Ancillary Products.
13 INFRINGEMENT INDEMNITY
13.1 Indemnification. Metawave shall indemnify, defend and hold harmless Crown,
its Affiliates, officers, directors, employees, agents and representatives
against damages, claims, liabilities, actions, costs and expenses, including
reasonable attorney's fees, arising from any claim or action for actual or
alleged infringement by any Product supplied in accordance with this Agreement
of any patent, trademark, copyright, trade secret or other Intellectual Property
Rights which do not arise from the Crown Confidential Information as provided by
Crown, incurred by Crown as a result of Crown's sale, distribution, lease,
possession, purchase or use of such Products provided that (i) Crown promptly
notifies Metawave in writing of the claim or action for which Crown intends to
assert such indemnity; (ii) Crown gives Metawave full opportunity and authority
to assume sole control of the defense and all related settlement negotiations
(subject to Section 13.2); (iii) Crown gives Metawave information and assistance
for the
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defense (Crown will be reimbursed for reasonable costs and expenses incurred in
rendering such assistance, against receipt of invoices therefore); and (iv)
Crown does not settle any claim or action without the prior approval of
Metawave, which shall not be unreasonably withheld, delayed or conditioned.
Metawave's obligation to indemnify, defend and hold harmless Crown as set forth
above shall include all amounts paid, by final judgments, arbitration awards or
settlement in such claims, made on account of such alleged infringement and
payment of any and all resulting settlements, costs and damages incurred by
Crown, including any amounts as the result of any final adjudication by a court
of law, arbitration or other final adjudication of the claim. Notwithstanding
the above, any amount paid or to be paid according to final judgments,
arbitration awards or settlement in such claims and any payments resulting from
settlements, costs and damages incurred by Crown shall be indemnified by
Metawave only to the extent not resulting from or apportionable to the Crown
Confidential Information as provided by Crown and then incorporated by Metawave
in any Product supplied or used in accordance with this Agreement. Metawave
shall not have the authority to bind Crown, without Crown's consent, in any
settlement, which consent shall not be unreasonably withheld, conditioned or
delayed by Crown.
13.2 Crown's Remedies. Upon the assertion of a claim by any third party of
infringement by any Product, or any component or technology thereof, supplied in
accordance with this Agreement of any patent, trademark, copyright, trade secret
or other Intellectual Property Rights which do not arise from the Crown
Confidential Information as provided by Crown, Metawave must provide Crown with
reasonable assurance as to non-infringement of the Product or provide a
workaround to avert the infringement claim as soon as possible after such claim
is made. The workaround will consist of Metawave making commercially reasonable
efforts to accomplish the following actions in the following order of priority:
(i) obtaining the right for Crown, its Affiliates and their customers to use,
license or sublicense the use of, lease, sublease, market and enhance the
Product and the Ancillary Products as provided under this Agreement (it being
agreed that Metawave is free to implement actions (ii) and/or (iii) below,
concurrently with implementation of action (i) if, in Metawave's reasonable
opinion, attempts in good faith to obtain this right for Crown are unlikely to
provide a result in accordance with the terms of this Agreement), or (ii)
modifying the infringing Product so that it no longer infringes, but continues
to perform and function in accordance with the Product Specifications, or (iii)
substituting (including deinstallation and installation at Metawave's expense) a
functionally equivalent product that does not infringe and which performs and
functions in accordance with the Product Specifications, as amended from time to
time by the Parties, for the Products sold to Crown, or if Metawave is unable to
perform (i), (ii) or (iii) after a period of ninety (90) days and commercially
reasonable efforts and such option is accepted by Crown, Crown may return the
Products to Metawave, in which case Metawave will de-install the Products from
Crown's property (at Metawave's sole expense), and reimburse Crown for the
Purchase Price paid for the returned Products. In addition to the workaround
remedy set forth above, Crown shall have the right, with reasonable notice to
Metawave, to negotiate, in consultation with Metawave, separately with any
claimant for a license for the claimed infringing technology and Metawave shall
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reimburse the reasonable costs and expenses incurred by Crown in connection with
the acquisition of a license to use such technology and for release of liability
from any prior use of such infringing technology, provided that Metawave shall
have the right to approve the amounts paid to the claimant to obtain such
license and release, which approval shall not be unreasonably withheld,
conditioned or delayed by Metawave.
13.3 Crown Specifications; Exceptions to Intellectual Property Indemnity. To the
extent that Metawave concludes during the developmental stages of the Products
and Ancillary Products that the Crown Specifications infringe on any
Intellectual Property Rights of a third party (and such conclusion is supported
by a legal opinion from Metawave's chief patent counsel), the parties shall
mutually agree on modifications to the Crown Specifications. Metawave shall have
no obligation to Crown with respect to any claim of patent or copyright
infringement which is based upon (i) the combination, operation or use of any
Products supplied hereunder with products, software or data for which Metawave
has not stated (either in an operation, installation or other manual or
documentation for the Products, or otherwise in writing) the Products are to be
used, are to be installed with or are designed; or (ii) the alteration of the
Products by any party other than Metawave (or its authorized subcontractors),
which combination, operation, use or material alteration of the Products gives
rise to the claim of infringement.
13.4 Exclusivity of Remedies. The foregoing provisions of this Section state the
entire liability and obligations of Metawave and the exclusive remedy of Crown
with respect to any alleged infringement of any Intellectual Property Rights by
the Products or any part thereof.
13.5 Ancillary Products. For purposes of this Section 13, the term "Products"
shall also include the Prototypes, the Initial Commercial Products and the
Ancillary Products so that the rights and obligations of the Parties set forth
in this Section also encompass the Prototypes, the Initial Commercial Products
and the Ancillary Products.
14 TERMINATION
14.1 Termination for Cause. Crown or Metawave may terminate this Agreement for
cause if there is an Event of a Default by the other Party.
14.1.1 An "EVENT OF DEFAULT" for Crown shall occur if: (i) Crown
materially breaches any of the terms of this Agreement; (ii) a petition
in bankruptcy or a petition under any insolvency law is filed by or
against Crown and is not dismissed within sixty (60) days of the
commencement thereof; or (iii) with the exception of any Crown
cancellations or terminations that are expressly permitted by this
Agreement, Crown cancels the Initial Order or fails to take delivery of
Products (with the exception of Products rejected pursuant to Section
10.3) covered by the Initial Order.
14.1.2 An "EVENT OF DEFAULT" for Metawave shall occur if: (i) Metawave
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materially breaches any of the terms of this Agreement or the Initial
Order; or (ii) a petition in bankruptcy or a petition under any
insolvency law is filed by or against Metawave and is not dismissed
within sixty (60) days of the commencement thereof or (iii) the Initial
Commercial Products fail to achieve the Product Performance Criteria as
defined in Exhibit C.
14.1.3 Other than in the case of an Event of Default under (i) Section
14.1.1(ii), (ii) 14.1.2(ii) or (iii) with respect to Metawave, a breach
of a covenant where performance is based on a date or period of time for
which a late fee or Liquidated Damages may be assessed (for example,
delivery of the Product by the ICP Delivery Date), the non-defaulting
Party shall provide the other Party with notice of the Event of Default
and the defaulting Party shall have thirty (30) days from the date of
such notice to cure the Event of Default. If the defaulting Party fails
to cure the Event of Default during such period, the non-defaulting
Party shall have the right to terminate this Agreement, the Initial
Order and/or any Follow-on Order and/or to pursue any other remedies
expressly permitted hereunder.
14.2 Non-Renewal. Either party may elect to not renew this Agreement by written
notice at least sixty (60) days prior to the expiration of the Initial Term or
applicable Renewal Term as set forth in Section 3. Crown shall have the right to
place Purchase Orders through the effective date of the termination, and
termination of this Agreement pursuant to this Section shall not affect any
outstanding Purchase Order as of the effective date of the termination.
14.3 Right of Metawave to Terminate. Metawave may terminate this Agreement prior
to confirming the ICP Delivery Date to Crown as contemplated in Section 8.1, if
it determines in its sole discretion that development of the SmartShare System
is not technically or economically feasible, or as expressly set forth in
Section 8.2. Metawave shall provide Crown with 30 days advance written notice of
such decision to terminate. If Metawave does elect to terminate this Agreement
as forth in this Section 14.3, Metawave shall pay to Crown the Liquidated
Damages amount set forth in Section 14.4.
14.4 Liquidated Damages. To the extent that Crown terminates this Agreement
pursuant to Sections 8.2 or 10.6.1 of this Agreement or Metawave terminates this
Agreement pursuant to Sections 8.2 or 14.3, Metawave shall pay to Crown
liquidated damages in an amount equal to [***] of the [***] Order at the time of
termination plus [***] (the "Liquidated Damages"), which sum the Parties agree
is reasonable and appropriate in light of the difficulty of calculating the
total damages that may be suffered by Crown due to such termination.
14.5 Post Termination Rights. Following termination of this Agreement, other
than due to (i) a Crown Event of Default (provided there is no preceding
Metawave Event of Default), or (ii) the Crown ICP Date Termination (provided
there is no preceding Metawave Event of Default), if within twelve (12) months
of the effective date of the termination, Metawave makes available for sale a
Shared Infrastructure product
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developed or sold by Metawave with substantially similar functionality as the
SmartShare System, Ancillary Products or Products (but not products that
primarily utilize technology owned by any competitor of Crown or which, after
unsolicited contact with a third party, were developed exclusively for the use
of such third party or are co-developed with such third party), Crown shall be
entitled to purchase such products under the terms and conditions set forth in
this Agreement, with appropriate modifications to provide Crown with the
benefits of the preferential rights contemplated herein, and without (i) any
liquidated damages clauses with respect to the failure to deliver any initial
products or (ii) exclusivity clauses if the products referenced above are
available for sale ninety (90) days after the effective date of termination. In
addition, for a period of twelve (12) months after the termination of the
Agreement, other than due to (i) a Crown Event of Default (provided there is no
preceding Metawave Event of Default), or (ii) the Crown ICP Date Termination
(provided there is no preceding Metawave Event of Default), Metawave agrees that
if it develops any new ideas or technologies which it believes may lead to the
development of a SmartShare System or of a similar product with substantially
similar functionality (but not products that primarily utilize technology owned
by any competitor of Crown or which, after unsolicited contact with a third
party, were developed exclusively for the use of such third party or are
co-developed with such third party), it will approach Crown as soon as possible
with respect to such potential development so that the parties may discuss its
potential development.
14.6 Remedies and Limitation. A Party may seek any remedy available to it at
equity or in law for an uncured Event of Default, provided, however, that the
payment of late fees or Liquidated Damages and the termination and cancellation
rights provided in connection therewith, shall be Crown's sole remedies with
respect to the non-delivery or late delivery of the Products (including Initial
Commercial Products) and Ancillary Products by Metawave as expressly provided in
Sections 8.2 and 10.6, or for Metawave's termination of this Agreement pursuant
to Sections 8.2 and 14.3. The foregoing, however, shall not be construed or
deemed to limit Crown's rights under Section 6.3 as contemplated therein.
14.7 Metawave Indemnity. Metawave shall defend, indemnify, and hold harmless
Crown, its parents (direct or indirect), subsidiaries (direct or indirect),
Affiliates, successors and assigns and their respective owners, directors,
officers, agents and employees (collectively, the "Indemnified Parties") from
any and all liabilities, claims or demands whatsoever (including the costs,
expenses and reasonable attorneys' fees incurred on account thereof) that may be
made: (i) by any person, specifically including, but not limited to, the
Indemnified Parties for injuries, including bodily injury (including death to
persons) or damage to property (including theft) occasioned by or arising from
(a) the sole or partial negligent acts or omissions or the willful misconduct of
Metawave, its employees, contractors or agents, and (b) any malfunctions or
defects in the Products or Ancillary Products (other than express warranty
claims, which shall be handled in accordance with Section 12 hereof) or (ii) by
persons furnished, employed or contracted by Metawave or any subcontractors
under Worker's Compensation or similar acts, except to the extent such
liability, claim, or demand arises in whole or part from the gross
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negligence or willful misconduct of the Indemnified Parties.
Metawave shall defend Crown against such liability, claim or demand and control
the litigation, settlement or defense thereof, except in instances where the
interests of Metawave and Crown conflict, in which case Crown will have the
option of choosing separate counsel and assuming its own defense, the reasonable
costs of which shall be paid for by Metawave. The foregoing indemnification
shall apply whether the death, injury or property damage is caused by the sole
acts or omissions of Metawave or by the acts or omissions of both Metawave or
the Indemnified Parties, except Metawave shall not be responsible for that
portion of any liability, claim or demand to the extent that it arises from the
negligence or willful misconduct of the Indemnified Parties. Crown agrees to
notify Metawave as soon as reasonably practicable of any written claim or
demands received by Crown against any Indemnified Parties for which Metawave is
responsible hereunder, provided, that late notification shall not be a defense
to the obligations of Metawave hereunder unless such delay shall have resulted
in prejudice to Metawave in any formal proceeding for which indemnification is
sought.
Metawave and Crown, and their employees and agents, shall comply with all
applicable laws and regulations in the performance of this Agreement. Both
Parties agree to indemnify and hold harmless the other Party for any loss or
damage that may be sustained for failure to comply with applicable law and
regulations in the performance of this Agreement. The Parties agree that the
indemnification procedures set forth in the preceding paragraph shall apply for
any claims arising under this paragraph.
15 TRADEMARKS
Crown shall not remove Metawave's name and trademark or the SmartShare logo
placed on the Products or Ancillary Products. Metawave hereby grants to Crown a
non-exclusive, non-transferable, irrevocable, perpetual and royalty-free right
and license to use Metawave's name and trademark, Metawave(R) Communications
Corporation, Metawave's logo, and the trademark SmartShare(TM), in connection
with the promotion, leasing, subleasing, licensing and sublicensing the use of,
advertising, and maintenance of the Ancillary Products and the Products, and the
sale of Personality Cards. Crown shall acquire no right, title or interest in
such name, trademarks, trade name, and logos of Metawave other than the
foregoing limited license. Notwithstanding the above, in the event that Crown is
manufacturing or having the Products and/or Ancillary Products manufactured as
provided for in the Design Package Escrow Agreement in Exhibit F, Crown shall
have the right to private brand or re-brand the Products and Ancillary Products
with Crown's own name and trademarks and utilize such name and trademarks in the
sale, use, lease, sublease, license or sublicense the use of, or other
distribution, promotion, advertising, maintenance, use, lease or exploitation of
the Products and Ancillary Products, provided that Crown acknowledges in its
marketing and product literature that the Products and Ancillary Products were
developed by Metawave.
16 SERVICES AGREEMENT
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Following execution of this Agreement, the Parties agree to use commercially
reasonable efforts to negotiate and execute a Services Agreement defining the
scope of services to be provided to Crown and its end user customers by no later
than the date the Initial Commercial Products are delivered. The Services
Agreement shall include the customization of Personality Cards and on site
testing by Metawave.
17 CONFIDENTIALITY
17.1 Disclosure of Confidential Information. To effectuate this Agreement, the
Parties acknowledge that prior to the execution of this Agreement they (or their
Affiliates) have disclosed, and subsequently thereto it shall be necessary for
the Parties (or their Affiliates) to further disclose, to each other certain
proprietary or confidential information including, but not limited to,
intellectual property, progress during development, business plans, models or
methods, and customer, technical, or business information, in written, graphic,
oral, or other tangible or intangible forms (the "CONFIDENTIAL INFORMATION").
Confidential Information shall also include all information and data of or
pertaining to either Party's or its Affiliates' customers, data, source code and
all information of the disclosing Party, its Affiliates or a third party that
may be reasonably understood from legends, designation, or the nature of such
information to be confidential or proprietary to the disclosing Party, its
Affiliates or to third parties to which the disclosing Party (or its Affiliates)
owes a duty of non-disclosure. In order to protect such Confidential Information
from improper disclosure, the Parties agree:
17.1.1 to identify verbally at the time of oral disclosure and in
writing within thirty (30) days after disclosure any verbal information
provided to the other Party that such disclosing Party deems to be
confidential or proprietary;
17.1.2 that any tangible forms of information that have been disclosed
by a Party (or its Affiliates) to the other Party prior to the Effective
Date shall constitute Confidential Information;
17.1.3 that following the Effective Date, the disclosing Party shall
▇▇▇▇ as confidential or proprietary, any tangible forms of information
which the source deems to be Confidential Information;
17.1.2 that all such Confidential Information shall be and shall remain
the exclusive property of the source;
17.1.3 not to disclose such Confidential Information to any third party
other than its officers, directors, employees, agents, independent
contractors, advisors, consultants, attorneys, investors and others
associated with the business operations of the disclosing Party who have
a need to know such information and which are made aware of the
restrictions contained herein and have executed non-disclosure
agreements with substantially similar protections to those set forth
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herein;
17.1.4 to keep such Confidential Information confidential and to use at
least the same level of care to prevent disclosure or unauthorized use
of the received Confidential Information as the recipient exercises in
protecting its own Confidential Information of a similar nature, but in
no event less than reasonable care;
17.1.5 to return promptly any copies of such Confidential Information to
the source at its request; and
17.1.6 to use such Confidential Information only for purposes of the
Statement of Work and for other stated purposes under this Agreement.
17.2 Exceptions to Confidential Information. These obligations shall not apply
to any Confidential Information which was legally in the recipient's possession
prior to receipt from the source and that:
17.2.1 was received in good faith from a third party not subject to a
confidential obligation to the source;
17.2.2 now is or later becomes publicly known through no breach of
confidential obligation by the recipient;
17.2.3 was developed by the recipient without having access to any of
the Confidential Information received in confidence from the source; or
17.1.4 which is required to be disclosed pursuant to subpoena or other
process issued by a court or administrative agency having appropriate
jurisdiction, provided that the Party receiving the subpoena or process
gives immediate notice to the other to permit the other to seek a
protective order or an exemption from such requirement.
17.3 Survival. This Article 17 shall survive any termination of this Agreement
for a period of two (2) years.
18 LEGAL RELATIONSHIP
18.1 No Agency or Joint Venture. This Agreement is not intended to create, nor
shall it be construed as creating or constituting, by implication or otherwise,
a partnership or other formal business organization between the Parties.
18.2 Employment Responsibilities. Each Party shall be solely responsible for all
aspects of employment of its employees, such as salaries, benefits, insurance
coverage, including
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workers' compensation, and taxes, including payment of any withholding taxes on
salaries. Except as set forth herein, each Party shall be solely responsible for
payment of the travel and living expenses of its employees engaged in work
pursuant to this Agreement.
19 ASSIGNMENT
Neither this Agreement nor any license or other right acquired herein shall be
assigned or otherwise transferred, in whole or in part, by either Party without
the prior consent of the other Party, provided, however, that either Party shall
have the right to effect such assignments without the consent of the other to
any Affiliate or to a third person or entity who acquires all or substantially
all of the assets, business or stock of the other Party, whether by sale, merger
or otherwise, provided such person or entity is not a competitor of the other
Party hereto.
20 NOTICES
Except as otherwise specified in this Agreement, all notices, consents,
requests, waivers or other communications shall only be in written form and
shall be deemed to have been duly given when made in writing and delivered in
person or deposited in the United States mail, postage prepaid, certified mail,
return receipt requested, or by a reputable overnight courier service providing
proof of delivery, or by confirmed facsimile transmission and addressed as
follows:
To Metawave: To Crown:
Metawave Communications Corporation Crown Castle International Corp.
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
[***] [***]
Fax: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
Copy to: [***], Copy to: [***],
General Counsel General Counsel
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
The address to which notices or communications may be given to either Party may
be changed by notice given by such Party to the other pursuant to this
Section20.
21 COMPLIANCE WITH LAWS/EXPORT
21.1 Compliance with Laws. The Parties shall comply with all laws applicable to
their performance as described in this Agreement; however, nothing in this
Agreement
*Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with respect
to the omitted portions.
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shall be construed as providing either Party with a private right of action
against the other Party under any such laws.
21.2 Export Laws. Each Party shall comply with all applicable U.S. and foreign
export control laws and regulations and shall not disclose, transmit, export or
re-export any technical data regarding the Product technology or Products except
in compliance with the applicable export control laws and regulations of the
U.S. and any foreign country. Neither Party shall disclose, transmit, or export,
directly or indirectly, any technical information disclosed to it by the other,
or any direct product of such information, to or for use in any foreign country
unless such disclosure, transmittal, or exportation shall be in compliance of
applicable United States laws or shall have been authorized previously in an
export license granted pursuant to any of such regulations.
22 FORCE MAJEURE
22.1 Conditions of Force Majeure. Except for payment of moneys due or
requirements of payment of moneys for acquisition of materials and services
necessary to meet a Party's commitments hereunder, neither Party shall be liable
for delays in delivery or performance or for failure to manufacture, deliver or
perform resulting from acts beyond the reasonable control of the Party
responsible for performance. Such acts shall include, but not be limited to (i)
acts of God, acts of a public enemy, acts or failures to act by the second Party
(other than due to a breach of the first Party), acts of civil or military
authority, acts of any person engaged in subversive activity or sabotage,
governmental priorities, strikes or other labor disturbances, hurricanes,
tornadoes, earthquakes, fires, floods, explosions, epidemics, embargoes, war,
riots, and loss or damage to goods in transit; or (ii) inability to obtain
necessary products, components, services or facilities on account of causes
beyond the reasonable control of the delayed Party or its suppliers. In the
event of any such delay, the date(s) of delivery or performance shall be
extended for as many days are reasonably required due to the delay, but no
longer than forty-five (45) days without Crown's written consent. After
forty-five (45) days, Crown shall be entitled to obtain Products and/or
Ancillary Products covered by the affected Purchase Order elsewhere for the term
of such failure, and to reduce, pro tanto the quantity or amount of products
ordered from Metawave under the Purchase Order. Upon the occurrence of an event
of Force Majeure, the Party affected by such event shall notify the other Party
in writing within ten (10) days, and if such delay continues for sixty (60) days
following such notice, either Party may terminate the Purchase Order affected by
the event by providing notice.
22.2 Notice of Labor Disputes. Whenever Metawave has knowledge that any actual
or potential labor dispute is delaying or threatens to delay the timely
performance of any Purchase Order, Metawave shall immediately give notice
thereof and all relevant information to Crown.
23 GOVERNING LAW/DISPUTE RESOLUTION
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23.1 Choice of Law. This Agreement and each Purchase Order issued hereunder
shall be construed in accordance with the internal laws of the state of New
York, without regard to its choice of law provisions.
23.2 Dispute Resolution. Except for matters involving equitable relief, any
controversy or claim arising out of or relating to this Agreement, or the breach
thereof, shall be resolved in the following order: (i) by good faith negotiation
between representatives of Crown and Metawave who have authority to fully and
finally resolve the dispute to commence within ten (10) days of the request of
either Party; (ii) in the event that the Parties have not succeeded in
negotiating a resolution of the dispute within ten (10) days after the first
meeting, then the dispute will be resolved by non-binding mediation to be held
in Los Angeles, CA, using a mutually agreed upon non-affiliated neutral Party
(or if the Parties are unable to agree upon a mediator, an impartial mediator
selected by the American Arbitration Association) having experience with or
knowledge in the wireless communications equipment industry, such neutral Party
to be chosen within five (5) days after notice by either Party demanding
mediation (the costs therefore to be shared equally); and (iii) if within thirty
(30) days of the initial demand for mediation by the Parties, the dispute cannot
be resolved by mediation, then the dispute will be resolved by binding
arbitration administered in Los Angeles, CA by the American Arbitration
Association under its Commercial Arbitration Rules, including the Optional Rules
for Emergency Measures of Protection, and judgment on the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction thereof. The
Parties agree that they shall pick the arbitrator(s) within five (5) business
days of the submission from the American Arbitration Association of proposed
arbitrators to the Parties. All discovery in arbitration shall be completed
within thirty (30) days after the selection of the arbitrator(s) and the hearing
shall be held within thirty (30) days of the completion of discovery. All costs
of such arbitration will be shared equally by the Parties with each Party
bearing the cost of its own counsel. The Parties commit to expedite the
arbitration process and not to delay any portion thereof. The parties agree to
abide by and perform any award rendered by the arbitrator(s). A ruling by the
arbitrator(s) shall be non-appealable. If either party seeks enforcement of the
terms of this Agreement or seeks enforcement of any award rendered by the
arbitrator(s), then the prevailing party (designated by the arbitrator(s)) to
such proceeding(s) shall be entitled to recover its legal costs and expenses
(other than the arbitration costs) from the non-prevailing party, in addition to
any other relief to which it may be entitled.
Notwithstanding anything in this Section to the contrary, and subject to Section
14.6, neither party shall be precluded from seeking court action in the event
the action sought is either an injunctive action, a restraining order or other
equitable relief.
24 PUBLICITY
Metawave shall have the right to issue a press release describing in general
terms this Agreement. Any proposed release shall be subject to Crown's approval,
which shall not be unreasonably withheld, delayed or conditioned; provided,
however, that such approval
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shall be in Crown's sole discretion if the identity of Crown is disclosed in
such press release. Any subsequent press release or public notification (other
than notification required by law or regulation) relating to the acceptance
delivery or deployment of the SmartShare Systems covered under this Agreement
shall be as mutually agreed between the Parties and such mutual agreement shall
not be unreasonably withheld by either Party.
25 WAIVER
Any term of this Agreement may be amended or waived only with the consent of the
Parties or their respective permitted successors and assigns. Any amendment or
waiver effected in accordance with this Section shall be binding upon the
Parties and their respective successors and assigns.
26 DISCLAIMER OF CONSEQUENTIAL DAMAGES
Neither Party shall be liable to the other for any indirect, special,
consequential damages or lost profits resulting from obligations under this
Agreement or any breach of this Agreement.
27 SEVERABILITY
If any of the provisions of this Agreement shall be invalid or unenforceable,
such invalidity or unenforceability shall not invalidate or render unenforceable
the entire Agreement, but rather the entire Agreement shall be construed as if
not containing the particular invalid or unenforceable provisions, and the
rights and obligations of Metawave and Crown shall be construed and enforced
accordingly.
28 ENTIRETIES
This Agreement, including all Exhibits that are attached to and hereby
incorporated into this Agreement, shall constitute the entire agreement between
Crown and Metawave with respect to the subject matter hereof and supersedes the
Letters of Intent executed by the Parties, the Confidentiality Agreement dated
October 20, 2000 by and between Crown Castle USA, Inc. and Metawave, and all
prior agreements, covenants, arrangements, communications, representations or
warranties, whether oral or written, by any Party or any officer, employee or
representative of any Party with respect to the subject matter hereof. Any
conflicts between this Agreement and any Purchase Order or Follow-on Order shall
be governed by the terms of this Agreement.
29 SURVIVAL
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The Parties agree that the obligations and protections of Articles 20, 26 and 29
and Sections 11.3 and 11.5 shall survive termination of this Agreement for a
term of 2 years; Sections 12, 14.5 and 17 shall survive termination of this
Agreement for the term set forth or incorporated therein; and Sections 6, 13, 15
and 23 shall survive the termination of this Agreement. Any and all payment
obligations of the Parties under this Agreement shall survive termination for a
period of five (5) years after termination of this Agreement. All other
provisions necessary for the interpretation of the surviving provisions shall
also survive for the purpose of such interpretation.
30 AMENDMENTS
Any amendment or modification of this Agreement or any Exhibit must be in
writing and signed by a duly authorized representative of each of the Parties.
31 CONSTRUCTION
Unless the context requires otherwise: (i) the gender (or lack of gender) of all
words used in this Agreement includes the masculine, feminine, and neuter; (ii)
the word "including" means "including, without limitation"; (iii) references to
Articles and Sections refer to Articles and Sections of this Agreement; and (iv)
references to Schedules, Exhibits and Appendixes are to the Schedules, Exhibits
and Appendixes attached to this Agreement, each of which is made a part hereof
for all purposes.
32 FURTHER ASSURANCES
In connection with these Agreement and the transactions contemplated hereby,
each Party shall execute and deliver any additional documents and instruments
and perform any additional acts that may be necessary or appropriate to
effectuate and perform the provisions of this Agreement and those transactions.
33 COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of which shall
constitute the same instrument.
34 TERRITORY
This Agreement applies to sales of Products in the United States. However, in
the event that Crown or its Affiliates wishes to purchase Products under this
Agreement for export or use outside the United States, the parties shall discuss
and resolve to their mutual agreement (not to be unreasonably withheld,
conditioned or delayed) the issues related to
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such sales, including but not limited to, the cost implications, customs and
duties handling, and export controls, taking into account all of Crown's
preferential rights under this Agreement, prior to any Purchase Orders being
placed by Crown or its Affiliates for Products to be exported outside the United
States.
35 TIME IS OF ESSENCE
Each of the Parties acknowledges that time is of the essence and that its shall
act in good faith and use reasonable commercial efforts to finalize all exhibits
and ancillary agreements contemplated and/or required under this Agreement as
soon as reasonably practicable following the Effective Date.
SIGNATURE PAGE FOLLOWS
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed
by their duly authorized representatives as of the Effective Date hereof.
CROWN CASTLE MW CORP. METAWAVE COMMUNICATIONS CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------- ---------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------- ---------------------------
Title: Vice President Title: Sr. VP Pan America
------------------------------- ---------------------------
Date: 2-26-02 Date: 2-26-02
------------------------------- ---------------------------
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EXHIBIT A - STATEMENT OF WORK AND PROJECT MILESTONES
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▇▇▇▇▇▇▇ ▇ -- PRODUCT SPECIFICATIONS
▇▇▇
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▇▇▇▇▇▇▇ ▇ -- PERFORMANCE ACCEPTANCE CRITERIA AND PROCEDURE
▇▇▇
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▇▇▇▇▇▇▇ ▇ -- PRODUCTS PRICE LIST
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INTRODUCTION
This Exhibit defines the "Not To Exceed (NTE)" price targets for the Products.
These Purchase Prices are based on currently available information and will be
converted to firm fixed prices in accordance with Section 8.5 of the Purchase
Agreement. The firm fixed prices for the Products and Ancillary Products shall
not exceed the NTE pricing, unless otherwise agreed to by the Parties. The
Purchase Prices set forth below will be adjusted as often as necessary to
reflect Crown's status as Metawave's most favored customer in accordance with
Section 8.6 of the Purchase Agreement, which entitles Crown to, among other
things, firm fixed prices no less favorable than the lowest fixed firm prices
offered to other Metawave customers. All discounts set forth in Sections 2 and 4
below are separate and cumulative discounts. To the extent any inconsistencies
or conflicts exist between this Exhibit and the Purchase Agreement, the terms of
the Purchase Agreement shall control.
PRODUCT ANNUAL PURCHASE PRICE REDUCTIONS
The Purchase Prices listed in the tables below shall be reduced by a total
amount of [***] after [***]. The Purchase Prices listed in the tables below
shall be reduced by a total amount of [***] after [***]. The Purchase Price
reductions shall be applied to all orders received following the specified
dates.
PRODUCT PRICING
PRODUCT PRICING FOR 2+2 PRODUCTS WITH VARIABLE DOWN-TILT
Cumulative
2+2 Product Pricing Price (USD) Price (USD)
------------------- ----------- -----------
[***] $[***] $ [***]
[***]
[***] $[***] $ [***]
[***] $[***] $ [***]
[***] $[***] $ [***]
[***] $[***] $ [***]
Notes:
1. For 2+2 Products, if NEXTEL or another SMR tenant is designated as a
Cellular Tenant, then the 2+2 Products shall be limited to 1Cellular/SMR
and two (2) PCS tenants.
[***]
3. Product pricing will be adjusted in accordance with Sections 1 and 2 of
this exhibit and with the terms of the Purchase Agreement.
*Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with respect
to the omitted portions.
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[***]
PRODUCT PRICING FOR PCS PRODUCTS WITH VARIABLE DOWN-TILT
Cumulative
PCS Product Pricing Price (USD) Price (USD)
------------------- ----------- -----------
[***] $[***] $[***]
[***]
[***] $[***] $[***]
[***]
[***] $[***] $[***]
[***]
[***] $[***] $[***]
[***]
[***] $[***] $[***]
[***]
Notes:
5. Product pricing will be adjusted in accordance with Sections 1 and 2 of
this exhibit and with the terms of the Purchase Agreement
[***]
[***]
[***] [***]
[***] [***]
[***] [***]
[***] [***]
Notes:
[***]
TENANT EXPANSION KITS DELIVERY
Tenant Expansion Kits shall be delivered within 30 days following receipt of a
Purchase Order except as otherwise permitted in Section 9.4 of the Purchase
Agreement.
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
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EXHIBIT E -- ANCILLARY PRODUCTS PRICE LIST
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INTRODUCTION
This Exhibit defines the "Not To Exceed (NTE)" price targets for the Ancillary
Products. These prices are based on currently available information and will be
converted to firm fixed prices in accordance with Section 8.5 of the Purchase
Agreement. The Purchase Prices set forth below will be adjusted as often as
necessary to reflect Crown's status as Metawave's most favored customer in
accordance with Section 8.6 of the Purchase Agreement, which entitles Crown to,
among other things, firm fixed prices no less favorable than the lowest fixed
firm prices offered to other Metawave customers. Ancillary products can be
purchased under this Agreement for: i) Revisions, modifications or replacement
components for filtering for a specific Tenant, ii) Modifications or changes to
a specific Tenant's previously deployed antenna patterns, and iii) Provisioning
of component spares or replacement units for Tenants. All Tenant additions to
both 2+2 Products and PCS Products shall only be accomplished using Tenant
Expansion Kits and, where applicable, PCS Expansion Antennas, as defined in
Exhibit D of the Purchase Agreement. All discounts set forth in Section 4 below
are cumulative discounts. To the extent any inconsistencies or conflicts exist
between this Exhibit and the Purchase Agreement, the terms of the Purchase
Agreement shall control.
INDIVIDUAL ANCILLARY PRODUCT COMPONENT PRICING
Replacement Component Product Pricing Price (USD)
------------------------------------- -----------
[***] $[***]
[***] $[***]
[***] $[***]
2. Each Tenant requires six (6) Personality Cards per band per site.
3. Each PCS filter assembly includes 6 PCS filters per band per site.
Ancillary Products Delivery
Delivery of Ancillary Products will be accomplished according to the following
schedule.
Standard Personality Cards (pre-established pattern options)
Orders will be shipped within 72 hours of receipt of order
Custom Personality Cards (custom pattern options)
Orders to be shipped within 5 days of receipt of order and required
pattern generation data.
PCS Filter Assembly
Orders to be shipped within 5 days of receipt of order and required
filter specification data.
*Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with respect to
the omitted portions.
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[***]
[***] [***]
[***] [***]
[***] [***]
[***] [***]
[***] [***]
[***] [***]
[***] [***]
[***] [***]
Notes:
[***]
[***]
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
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EXHIBIT F -- DESIGN PACKAGE ESCROW AGREEMENT
TBD
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APPENDIX 1
PURCHASE ORDER
▇▇▇▇ TO: ORDER NO:
---------------------------------
DATE:
---------------------------------
VENDOR: SHIP TO:
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ENTERED BY:
-------------------------------
TAKEN BY:
-------------------------------
BUYER NAME: DELIVERY:
------------------------------- ---------------------------------
REQUIRED DATE SHIP VIA FOB TERMS ORDER REQ.#
-------------- ---------- ----------- ------ ---- -------- ----------
ITM # P/N DESCRIPTION AMT UM UNIT CST EXTENSION
-------------- ---------- ----------- ------ ---- -------- ----------
THIS PURCHASE ORDER IS SUBJECT TO ALL THE TERMS AND CONDITIONS OF THAT CERTAIN
SMARTSHARE SYSTEM PURCHASE AGREEMENT DATED FEBRUARY ___, 2002 (THE "PURCHASE
AGREEMENT") BY AND BETWEEN METAWAVE COMMUNICATIONS CORPORATION AND CROWN CASTLE
MW CORP, AND IS INCORPORATED HEREIN FOR ANY AND ALL PURPOSES. THE PARTIES AGREE
THAT ANY ADDITIONAL, DIFFERENT OR CONFLICTING TERMS AND CONDITIONS CONTAINED IN
ANY QUOTE, SOLICITATION, PURCHASE ORDER, AGREEMENT OR DOCUMENTATION EXCHANGED BY
THE PARTIES THAT CONFLICT WITH THE TERMS OF THE PURCHASE AGREEMENT SHALL NOT BE
BINDING ON THE PARTIES AND ARE HEREBY REJECTED, UNLESS THE PARTIES EXPRESSLY AND
SPECIFICALLY AGREE TO SUCH CHANGES.
---------------------------------- --------------------------------
PURCHASING DEPARTMENT TOTAL ORDER:
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