EXHIBIT 10.30
CONFIDENTIAL
THIS MASTER SUPPLY AGREEMENT is made as of March 16, 2005.
BETWEEN:
BCE NEXXIA CORPORATION, a
company incorporated pursuant
to the laws of state of
Delaware, and having a place of
business at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇/▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇, and
▇▇▇▇ CANADA, a company
incorporated pursuant to the
laws of Canada, and having a
place of business at ▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇ ▇▇▇
OF THE FIRST PART
AND:
CLEARWIRE CORPORATION, a
company incorporated pursuant
to the laws of state of
Delaware, and having a place of
business at ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇, and
CLEARWIRE LLC, a limited
liability company formed
pursuant to the laws of the
state of Nevada, and having a
place of business at ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
OF THE SECOND PART
WHEREAS Clearwire is a provider of broadband Internet wireless services in the
Territory and wishes to include VoIP Services as part of its offerings of
broadband Internet products and services;
AND WHEREAS Clearwire and BCE Nexxia desire to leverage their respective assets
and core competencies to develop a balanced approach between the highest quality
VoIP services and the lowest possible cost and to enable Clearwire to deliver
those VoIP services to Clearwire customers at competitive rates;
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AND WHEREAS Clearwire wishes to take advantage of BCE Nexxia's abilities to
effectively, efficiently and economically (a) provide or arrange for the
provision of hardware, Software, procurement services, management services, and
other components necessary for Clearwire to provide VoIP Services to its End
Users in the Territory, and (b) provide day-to-day management and operation of
the components and services necessary for Clearwire to provide VoIP Services to
its End Users in the Territory;
AND WHEREAS BCE Nexxia wishes to provide the Services to Clearwire, as set forth
in this Agreement;
AND WHEREAS BCE Nexxia and Clearwire wish to implement this Agreement in support
of the relationship between the Parties described in this Agreement and to
establish a framework for facilitating cooperation between the Parties with
respect to the delivery of the Services to Clearwire and to create a framework
to facilitate the strategic review and the development of Future Services;
NOW THEREFORE in consideration of the premises and the mutual covenants herein
and other good and valuable consideration (the receipt and sufficiency of which
is hereby acknowledged by each of the parties) the Parties hereto covenant and
agree as follows:
SECTION 1
DEFINITIONS & INTERPRETATION
1.1 DEFINITIONS: In this Agreement, unless the context requires otherwise,
"ACCEPTABLE USE POLICY" means the acceptable use policy attached hereto as
Schedule 2.
"ADDITIONAL LINE" has the meaning given to such term in Section 3.2(a).
"ADVERSE MATERIAL IMPACT" means with respect to proposed Changes to either
of Dedicated Systems or Non-Dedicated Systems that results in "dual
logical instances", i.e, a situation wherein BCE Nexxia must establish or
expand the scope of either routine or occasional (e.g., new feature
introduction) processes to support the Services that are materially
different from those required by ▇▇▇▇ Canada to service it's domestic
consumer VoIP customer base, as determined by ▇▇▇▇ Canada acting
reasonably.
"AFFECTED PARTY" has the meaning given to such term set out in
Section 18.1.
"AFFILIATE" means any Person, however organized, that, directly or
indirectly, Controls, is Controlled by or is under common Control with the
applicable Party. For purposes of this Agreement, "CONTROL", and
variations of "CONTROL" means: (a) ownership of a majority of the voting
power of those classes of voting stock entitled to vote in the election of
directors, whether as a result of equity ownership interests, voting
agreements or otherwise; or (b) ownership of a majority of the beneficial
interests in income and capital of an entity other than a corporation.
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"AGREEMENT" means this agreement together with the following Schedules (and any
amendments or additions thereto made in writing in accordance herewith), all of
which are incorporated by reference herein:
Schedule 1 - SOW
Schedule 2 - Acceptable Use Policy
Schedule 3 - Term Sheet - Financing
Schedule 4 - Appointments
Schedule 5 - Take Back Service Elements
Schedule 6 - Future Services
"APPLICABLE LAWS" means all statutes, laws, regulations, ordinances, rules
orders and all amendments thereto, from time to time in force and effect, and
requirements of governmental authorities, Regulatory Authorities or other public
authorities, including interpretations thereof by any such authorities acting
within their jurisdiction with respect to matters involving the Services or VoIP
Services, and not stayed or otherwise made not binding as a result of judicial
or other action of a body with review authority.
"AT RISK PARTY" has the meaning given to such term in Section 4.2(b).
"BCE NEXXIA" means BCE Nexxia Corporation and ▇▇▇▇ Canada (and any of their
respective Affiliates providing or supporting the provision of Services
pursuant to this Agreement). The Parties understand that ▇▇▇▇ Canada and its
Canadian Affiliates are to provide and support those Services to be performed in
Canada and BCE Nexxia Corporation and its U.S. Affiliates are to provide and
support those Services to be performed in the U.S.
"BCE NEXXIA DEPLOYED IP" means the Intellectual Property owned or licensed by
BCE Nexxia and made available to Clearwire by or through BCE Nexxia in order for
Clearwire to provide VoIP Services to End Users. The BCE Nexxia Deployed IP
excludes BCE Nexxia's or any of its Affiliates' brands or other trade-marks
associated with the BCE Nexxia Deployed IP. The BCE Nexxia Deployed IP is
subject to any limitations or restrictions which are imposed by the owners of
such Intellectual Property and is subject to any other third party rights in the
BCE Nexxia Deployed IP.
"BCE NEXXIA FIELD OF USE" means the development, provisioning, management,
support and integration of IP Telephony, together with the marketing, sale and
distribution of related products and services.
"BCE NEXXIA INVENTIONS" means those Inventions that are either (i) made solely
by employees of BCE Nexxia in the performance of this Agreement, (ii)
Derivatives of copyrights or Patents on or to BCE Nexxia Deployed IP whether or
not such Derivatives have been developed jointly by the Parties, or (iii)
developed jointly by employees of Clearwire and BCE Nexxia while performing the
Services, but excluding any Inventions set out in subsection (iii) of Clearwire
Inventions.
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"BCE NEXXIA IS/IT AND TELECOM SYSTEMS" means BCE Nexxia's facilities, platforms,
Software, databases (excluding Confidential Information of Clearwire contained
therein), operational support systems, business support systems, solution
architectures, methodologies, processes, graphical user interfaces, know how,
documentation and prototypes including any Intellectual Property Rights related
to the foregoing and such other equipment or property owned or licensed by BCE
Nexxia or its Affiliates and necessary for or used in the provision of the
Services.
"BCE NEXXIA OUT-OF-POCKET TERMINATION COSTS" means all of the Contract
Termination Costs, together with reasonable, demonstrable, incremental
out-of-pocket costs, fees and expenses incurred by BCE Nexxia in connection with
the termination of the Agreement.
"BUSINESS DAYS" means regular workdays, not including holidays and weekends,
when businesses ordinarily operate in the state of Washington and the province
of Ontario.
"CANADIAN COMPETITOR" means any of the following entities, and their respective
successors, assigns, and Affiliates: [***]
"CHANGE" means any addition, upgrade, update, reduction, replacement, deletion,
modification, improvement, amendment or adjustment to the Services.
"CHANGE COMMUNICATION" means the written communication required under Section 7
and to be exchanged by the Parties with respect to any proposed Changes to the
Services and to Service Elements.
"CHANGE MANAGEMENT PROCESS" has the meaning given to such term in Section 7.1.
"CHANGE OF CONTROL" means, in respect of any Person (the "CONTROLLED PERSON"),
the occurrence of the following, or the execution of an agreement the
performance of which will cause or result in the occurrence of the following
(whether by merger, amalgamation, arrangement, recapitalization, share exchange
or any other transaction or event): that any Person or related group of Persons,
other than the Person that Controls such Controlled Person immediately prior to
the occurrence of such transaction or event or the entering into of such
agreement, would have Control of such controlled Person upon the occurrence of
such transaction or event.
"CHANGE RESPONSE" has the meaning given to such term in Section 7.5(b).
"CHARGES" [***]
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"CLEARWIRE" means Clearwire Corporation and any of its Affiliates providing VoIP
Services from time to time in the Territory.
"CLEARWIRE ENABLING IP" means the Intellectual Property owned or licensed by
Clearwire from parties other than BCE Nexxia and its Affiliates and made
available by Clearwire to BCE Nexxia in order for BCE Nexxia to perform Services
under this Agreement. The Clearwire Enabling IP excludes Clearwire's or any of
its Affiliates' brands or other trade-marks associated with Clearwire Products.
The Clearwire Enabling IP is subject to any limitations or restrictions which
are imposed by the owners of such Intellectual Property and is subject to any
other, third party rights in the Clearwire Enabling IP.
"CLEARWIRE FIELD OF USE" means the deployment of broadband wireless access
systems and the marketing, sale and distribution of related products and
services.
"CLEARWIRE INVENTIONS" means those Inventions that are (i) made solely by
employees of Clearwire in the performance of this Agreement, (ii) Derivatives
of copyrights or Patents on or to Clearwire Enabling IP whether or not such
Derivatives have been jointly developed by the Parties, or (ii) developed
jointly by employees of Clearwire and BCE Nexxia while engaged in work pursuant
to this Agreement, provided that such Inventions are integrated solely into
Clearwire Products and are not part of or integrated into any BCE Nexxia IS/IT
and Telecom Systems related to IP Telephony.
"CLEARWIRE PRODUCTS" means the hardware and Software manufactured by or for
Clearwire for the deployment of broadband wireless access systems by Clearwire.
"CONFIDENTIAL INFORMATION" means all oral, written or machine-readable data or
information that is prominently identified as confidential or by its nature is
confidential and that is not known generally in the trade or industry, and
which pertains to a Party or its business or operations, disclosed or acquired
directly in connection with this Aggrements and includes all documents and
information which incorporate or are derived from any such data or information.
Without in any way limiting the foregoing, Confidential Information includes all
information relating to End Users and other customers of Clearwire, any
research, development or business activities, information disclosed at any
meetings and demonstrations between the Parties at any time before or after the
Effective Date, products, schedules, methodologies, algorithms, processes,
procedures, documentation, policies, pricing, market analysis, equipment,
statistics, technology, sales, projections and corporate/business or financial
information, technical information, network design information, actual and
potential accounts, ideas, concepts,
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techniques, processes, devices, compilations, research, development,
manufacturing, purchasing, data processing, engineering, marketing, drawings,
models, sketches, all written material including programs and subroutines
(whether in source or object code form) and updates and modifications thereto,
tapes, diskettes, listings, and other programming and system documentation,
manuals and copies thereof containing such information.
"CONTRACT TERMINATION COSTS" means BCE Nexxia's reasonable, demonstrable
out-of-pocket costs resulting from the early termination of subcontracts, or
commitment related to the supply or acquisition of Service Elements, including
any penalties or one-time charges incurred by BCE Nexxia in connection
therewith.
"CONVERTIBLE SECURITIES" has the meaning given to such term in Section 3.2(c).
"COSTS" [***]
"DEDICATED" means, with respect to a Service Element, when such Service Element
is provided by a Third Party Provider pursuant to a Dedicated Third Party
Provider Agreement for the sole purpose of providing or facilitating the
provision of Services hereunder.
"DEDICATED SYSTEMS" means the systems provided to Clearwire by BCE Nexxia or by
any Third Party Providers, from time to time, which could include operating
platforms used for purposes such as web sales applications, self-care
applications, order management, activation, customer care, provided that the
same shall not be concurrently used by BCE Nexxia, or any of its Affiliates, for
the provision and management of VoIP services to their respective consumer base.
"DEDICATED THIRD PARTY PROVIDER AGREEMENTS" has the meaning given to such term
in Section 2.6.
"DEFAULTING PARTY" has the meaning given to such term in Section 4.2(a).
"DERIVATIVES" means (i) for material subject to copyright protection, any work
that is based upon one or more pre-existing works, such as a revision,
modification, translation, abridgment, condensation, expansion, collection,
compilation or any other form in which such pre-existing works may be recast,
transformed or adapted, or (ii) for patentable or patented materials, any
adaptation, subset, addition, improvement or combination.
"DEVELOPMENT TEAM" has the meaning given to such term in Section 6.1(d).
"DIRECT EXPENSES" means third party charges that are to be paid directly by
Clearwire and administered by BCE Nexxia as part of the Services.
"DISPUTE" has the meaning given to such term in Section 17.1.
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"EFFECTIVE DATE" shall mean -, 2005.
"END USER(s)" means a consumer of Clearwire's VoIP Services that has a billing
relationship with Clearwire, or a Person receiving Clearwire's VoIP Services
through a reseller where such Person has a billing relationship with such
reseller.
"EXECUTIVE OPERATING COMMITTEE" has the meaning given to such term in
Section 5.1.
"FUTURE SERVICES" means the services which may be identified from time to time
on Schedule 6, as updated from time to time by BCE Nexxia, and which are
provided on a commercial basis by BCE Nexxia to its customers or are under late-
stage development for commercial deployment by BCE Nexxia.
"IMPOSITIONS" means all contribution and commodity taxes, including but not
limited to, all sales, retail, use, goods and services, harmonized, value added,
excise, and similar taxes imposed, levied or assessed by any federal,
provincial, state or local government authority or Regulatory Authorities,
other than taxes on income, capital, owned property and employees, and
withholding taxes or other amounts, if any, that may be required under
Applicable Law to be withheld by Clearwire from payment of the fee referred to
in Section 3.2 (a).
"INDEMNITEE" has the meaning given to such term in Section 9.1.
"INDEMNITOR" has the meaning given to such term in Section 9.1.
"INFORMANT" shall mean a Party to this Agreement (including an Affiliate of such
Party) providing any Confidential Information to another Party to this Agreement
(including an Affiliate of such Party).
"INITIAL QUARTERLY PLANNING DOCUMENT" has the meaning given to such term in
Section 5.2(a)
"INTELLECTUAL PROPERTY" means all (i) Patents and Patent Rights, (ii) copyrights
and other rights in copyrightable works, together with copyright registrations
and applications for registrations, (iii) mask works and registrations and
applications for registration thereof, (iv) proprietary know-how and trade
secrets, (v) trademarks, service marks, trade names, Internet domain names and
applications for registration and registrations therefore, and all goodwill
symbolized thereby and associated therewith, (vi) other proprietary rights
relating to any of the foregoing existing at any time in Canada, the U.S., or
elsewhere throughout the world, (vii) all works protected by any of the above
rights, and (viii) all works protected by any of the above rights.
"INTELLECTUAL PROPERTY RIGHT" means any right, whether granted or recognized
under Canadian, U.S., or other foreign law, by common law, registration,
license, assignment or otherwise, in Intellectual Property.
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"INVENTIONS" means any Software, hardware, systems, material, works,
information, discoveries, inventions, processes, data or products, including
Derivatives, that are (i) copyrightable, patentable or subject to trade secret
protection, and (ii) created by BCE Nexxia or Clearwire in the performance of
this Agreement. Inventions are Clearwire Inventions, BCE Nexxia Inventions or
Joint Inventions.
"IP TELEPHONY" means person-to-person speech and speech related multi-media
communications using Internet Protocol, as the same may evolve over time.
"JOINT INVENTIONS" means those Inventions made jointly by employees of Clearwire
and BCE Nexxia while performing the functions described in this Agreement that
are not BCE Nexxia Inventions or Clearwire Inventions.
"MAJOR PROVIDER" means any of the following entities, and their respective
successors, assigns, and Affiliates: [***].
"MATERIAL BREACH" means any breach by either BCE Nexxia on the one hand or
Clearwire on the other hand, of any covenant, obligation or duty contained in
this Agreement that would materially and adversely affect a fundamental business
purposes or economic and financial benefits of this Agreement to BCE Nexxia or
Clearwire respectively, including but not limited to, BCE Nexxia's failure to
deliver the Services in accordance with and subject to this Agreement, including
Schedule 1, in any material respect, or Clearwire's failure to make payment for
Charges when due as set forth in Section 3.
"NEW ADDITIONAL LINES" has the meaning given to such term in Section 3.2(a).
"NEW DEVELOPMENT INITIATIVES" has the meaning given to such term in
Section 6.1(a).
"NEW END USERS" has the meaning given to such term in Section 3.2(a).
"NEW END USERS PAYMENT" has the meaning given to such term in Section 3.2(a).
"NON-DEDICATED SYSTEMS" means the BCE Nexxia IS/IT and Telecom Systems used by
BCE Nexxia as part of the Services which include OSS platforms used for the
purposes of providing Clearwire with functions such as trouble management,
network management, usage presentment, and SS7 system and where the same are
provided to Clearwire and are concurrently used by BCE Nexxia, or any of its
Affiliates, for the provision and management of VoIP services to their
respective consumer base.
"NOTICE TO ARBITRATE" has the meaning given to such term in Section 17.3.
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"PARTY" means a signatory to this Agreement, and "PARTIES" means all signatories
to this Agreement.
"PASS-THROUGH EXPENSES" [***].
"PATENTS" means all classes or types of patents (including, without limitation,
originals, divisions, continuations, continuations-in-part, extensions or
reissues), and applications for these classes or types of patents in all
countries of the world.
"PATENT RIGHTS" means those rights arising from or related to Patents, and any
equivalent rights in all countries of the world.
"PERMITTED ASSIGN" has the meaning given to such term in Section 19.1.
"PERSON" means any individual, entity or organization, and includes an
individual, a corporation, a partnership, a trust, an unincorporated
organization or association, the government of a country or any political
subdivision thereof, or any agency or department of any such, government, and
the executors, administrators or other legal representatives of an individual in
such capacity.
"PROJECT MANAGEMENT OFFICE" has the meaning given to such term in
Section 5.2.
"QUARTERLY PLANNING DOCUMENT" has the meaning given to such term in
Section 5.2(a).
"RECIPIENT" means the Party (including an Affiliate of such Party) receiving any
Confidential Information from the other Party.
"REGULATORY AUTHORITIES" means the regulatory, or other governmental or
quasi-governmental authorities in Canada, the U.S. or elsewhere with
jurisdiction over the Services or VoIP Services.
"RIGHT OF FIRST PROPOSAL" or "ROFP" has the meaning given to such term in
Section 6.2.
"ROFP NOTICE" has the meaning given to such term in Section 6.2(b).
"SERVICES" means the services provided by BCE Nexxia identified in Schedule 1
attached hereto and any Future Services that may be included from time to time
by BCE Nexxia
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and Clearwire pursuant to the terms and conditions set forth herein, including
without limitation Services or Future Services provided pursuant to the Right of
First Proposal.
"SERVICE ELEMENTS" means, without limitation, tools, systems, equipment,
Intellectual Property, real property, or services of any nature or kind provided
by Third Party Providers in connection with the provision of the Services.
"SERVICE PLANS" has the meaning given to such term in Section 6.1(d).
"SIDE AGREEMENT" has the meaning set out in Section 3.2(f).
"SOFTWARE" includes applications software (which refers to a group of computer
based programs of any format, which performs specific functions or applications,
together with supporting documentation and materials) and systems software
(which refers to the software programs which are generally known as operating
software, utilities or system software that are used in conjunction with the
hardware to perform tasks basic to the functioning of a computer and which are
required to operate the applications software, together with supporting
documentation and materials).
"SOURCE CODE" means, with respect to Software, a complete copy of the source
code version of software, appropriately labeled to denote the version or release
thereof, and the currency date thereof, in each of (i) machine-readable form on
machine-readable storage medium suitable for long term storage and which, when
compiled, will produce the object code version of the Software; and (ii)
human-readable form with annotations in the English language on bond paper
Suitable for long term archival storage.
"SOW" means the statement of work attached hereto as Schedule 1.
"TAKE BACK SERVICE ELEMENTS" has the meaning given to such term in Section 2.8.
"TARIFFS" means the tariffs of ▇▇▇▇ Canada as approved by the Canadian
Radio-television and Telecommunications Commission or other relevant Regulatory
Authorities of competent jurisdiction from time to time.
"TERM" has the meaning given to such term in Section 4.1.
"TERM SHEET" means the term sheet for vendor financing attached hereto as
Schedule 3.
"TERMINATING PARTY" has the meaning given to such term in Section 4.2(b).
"TERMINATION DISPUTE" has the meaning given to such term in Section 4.2(c).
"TERMINATION TRANSITION ASSISTANCE" means the reasonable transition assistance
to be provided by BCE Nexxia in the event of a termination by either BCE Nexxia
or Clearwire, pursuant to Section 4.
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"TERMINATION TRANSITION PERIOD" means the period relating to the performance of
Termination Transition Assistance, which shall be the period designated by
Clearwire, up to a maximum of twelve (12) months and shall commence only upon
the termination of this Agreement.
"TERRITORY" means the U.S.
"THIRD PARTY PROVIDERS" means a Person that is not a Party to this Agreement
which provides services, Intellectual Property, tangible or real property, to
either BCE Nexxia or Clearwire, as the case may be, in order to facilitate the
provision by BCE Nexxia of the Services.
"URGENT DISPUTE" has the meaning given to such term in Section 17.4.
"U.S." means the fifty (50) states of the United States of America and the
District of Columbia.
"VOIP SERVICES" means the various combinations of IP Telephony products and
services provided by Clearwire to its End Users.
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1.2 INTERPRETATION: In this Agreement, unless the subject matter or context
otherwise requires:
(a) All references to a designated "Article", "Section", "Subsection" or
other subdivision or to a Schedule is to the designated Article,
Section, Subsection or other subdivision of, or Schedule to, this
Agreement.
(b) The words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any
particular Article, Section, Subsection or other subdivision or
Schedule.
(c) The headings and captions are for convenience only and do not form
part of this Agreement and are not intended to interpret, define, or
limit the scope, extent or intent of this Agreement or any
provisions hereof.
(d) The singular of any term includes the plural, and vice versa, the
use of any term is equally applicable to any gender and, where
applicable, a body corporate.
(e) The word "or" is not exclusive and the word "including" means
"including, without limitation," and the words "include" and
"includes" have the corresponding meanings.
(f) Any accounting term not otherwise defined has the meaning assigned
to it and all accounting matters will be determined in accordance
with generally accepted accounting principles in the Canada.
(g) Any reference to a statute includes and is a reference to that
statute and to the regulations made pursuant thereto, with all
amendments made thereto and in force from time to time, and to any
statute or regulation that may be passed which has the effect of
supplementing or superseding that statute or regulation.
(h) A reference to a time or date is to the local time or date at New
York, New York.
(i) A reference to an approval, authorization, consent, designation,
waiver or notice means written approval, authorization, consent,
designation, waiver or notice.
SECTION 2
SERVICES AND OBLIGATIONS OF THE PARTIES
2.1 SERVICES TO BE PROVIDED: BCE Nexxia shall provide the Services to Clearwire,
on terms and conditions set forth in this Agreement as the same may be amended
or modified from to time in accordance with the terms and conditions hereof.
2.2 EXCLUSIVE USE OF BCE NEXXIA SERVICES: During the Term of this Agreement,
except during any Transition Assistance Period, and provided that BCE Nexxia is
not in Material Breach of this
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Agreement as agreed among the Parties or as finally determined under Section 17,
Clearwire (and any entity under Clearwire's Control) shall fulfill and discharge
all of its requirements for the Services, or services of a similar nature, in
the Territory, in support of IP Telephony, through BCE Nexxia if Clearwire can
do so without violating its fiduciary duties to a third party and without
breaching any binding agreement with a third party, provided, however, that
"Service Elements" shall not constitute "services of a similar nature" under
this Section 2.2. If Clearwire determines that the potential for a violation of
Applicable Laws, fiduciary duties or agreements with third parties exists,
Clearwire shall provide BCE Nexxia with reasonable advance notice, prior to
relying on the exception provided in this Section 2.2 for potential violation of
Applicable Laws, fiduciary duties or agreements with third parties, setting
forth in sufficient detail the nature of the potential violation, in an effort
to allow consultation between Clearwire and BCE Nexxia regarding Clearwire's
assessment of the applicability of such exception. If it disagrees with
Clearwire's determination BCE Nexxia shall be entitled to invoke the dispute
resolution process provided in Section 17.1; provided, however, specific
performance shall not be a remedy available to BCE Nexxia. Notwithstanding the
foregoing, this Section 2.2 shall not apply to Clearwire's purchase of any
services similar to the Services if BCE Nexxia has elected not to provide such
services to Clearwire. Subject to the terms of this Section 2.2, (a) for
entities under Clearwire's Control, Clearwire shall use commercially reasonable
efforts to promote the Services to such entities and to promote the execution by
such entities of a joinder to this Agreement, pursuant to which such entities
will be bound by this Section 2.2, and (b) for entities in which Clearwire has
an ownership interest but does not have Control, Clearwire shall use
commercially reasonable efforts to promote the Services to such entities.
Nothing in this Agreement shall be construed to limit Clearwire's right to sell
any types of VoIP Services through any channel, including retail and wholesale.
2.3 WARRANTY: BCE Nexxia warrants, and Clearwire recognizes, that the Services
to be supplied under this Agreement shall be of a nature and quality
substantially equivalent to the services of a similar nature BCE Nexxia provides
solely for its own account except that BCE Nexxia does not warrant any portion
of the Services supplied by Third Party Providers. In addition, nothing in this
Agreement shall be construed or interpreted as BCE Nexxia providing a warranty,
as it relates to sufficiency or adequacy of the delivery of VoIP Services to
Clearwire's End Users. With respect to Service Elements provided by Third Party
Providers, BCE Nexxia will use commercially reasonable efforts to include in the
Dedicated Third Party Provider Agreements a provision to pass through to
Clearwire all warranties received by BCE Nexxia from such Third Party Providers.
Furthermore, if the Parties agree in writing after the date of this Agreement
that any specific Service Elements to be supplied under this Agreement are to be
of a lesser nature and quality than those provided by BCE Nexxia for its own
account, then the above mentioned warranty will only extend to such lesser
threshold. Subject to the foregoing limitations, BCE Nexxia also warrants that
the Services shall be provided in a good, careful, and professional manner, in
compliance with Applicable Law. Clearwire and BCE Nexxia will monitor industry
developments of quality and performance standards for services similar to the
Services and VoIP Services. Clearwire and BCE Nexxia agree that, in addition to
the warranties and performance standards stated elsewhere in this Agreement, it
is their intent and BCE Nexxia shall endeavor to achieve the result that the
Services will meet or exceed industry standards for quality and performance as
such standards are developed and as they may change over time.
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2.4. NON-EXCLUSIVITY: Nothing in this Agreement shall be construed or
interpreted as limiting or restricting the rights of BCE Nexxia to promote,
market and sell any services of a nature substantially similar to the Services,
in the Territory or outside the Territory, to any Person, provided that BCE
Nexxia does so without using any Clearwire Enabling IP or any Service Elements
provided on a Dedicated basis paid for by Clearwire and without violating BCE
Nexxia's obligations under Section 12.
2.5 ACCESS BCE NEXXIA IS/IT SYSTEMS AND TELECOM SYSTEMS: During the Term, as
recipient of the Services, Clearwire shall, subject to any restrictions set
forth in this Agreement, and to the extent practicable, be afforded access and
use of BCE Nexxia IS/IT Systems and Telecom Systems, provided that the use or
access to BCE Nexxia IS/IT Systems and Telecom Systems shall not constitute a
transfer or assignment to Clearwire of any rights, property rights or other
form of entitlements or beneficial interest, including any Intellectual Property
Right. The compensation from Clearwire to BCE Nexxia for Clearwire's access to
and use of BCE Nexxia IS/IT Systems and Telecom Systems is included as part of
the Charges.
2.6 DEDICATED THIRD PARTY PROVIDER AGREEMENTS: Subject to Section 2.7, unless
otherwise required by Clearwire from time to time in its discretion with respect
to any particular Service Element (which may be provided by Clearwire, its
contractors or agents as provided in this Agreement), BCE Nexxia shall identify
and recommend Third Party Providers in order to obtain the Service Elements, on
a Dedicated basis, and to negotiate the terms and conditions of all agreements
in such respect with Third Party Providers (the "DEDICATED THIRD PARTY PROVIDERS
AGREEMENTS"). Notwithstanding the foregoing, Clearwire shall approve or reject
Third Party Providers recommended by BCE Nexxia, through the Project Management
Office, for Dedicated Third Party Provider Agreements, provided, however, that
Clearwire agrees that [***] is an approved Third Party Provider for purposes of
VoIP softswitch, VoIP application systems, PSTN gateways and other related VoIP
telecom services equipment, further provided that Clearwire acknowledges that
BCE Nexxia may convert and migrate to an alternative Third Party Provider for
voicemail systems application. Unless doing so would result in Clearwire having
to pay higher Charges than those that would have been payable had a Dedicated
Third Party Provider Agreement been entered into with BCE Nexxia as principal,
Clearwire shall execute such Dedicated Third Party Provider Agreements as
principal and shall be directly liable to the Third Party Provider for all
obligations under such Dedicated Third Party Provider Agreement and will be
entitled to benefit from all rights and recourses thereunder. Otherwise, such
Dedicated Third Party Provider Agreement will be executed by BCE Nexxia as
principal and Clearwire will assume all costs and expenses thereunder as part of
the Charges. Clearwire agrees that, for any Dedicated Third Party Provider
Agreement entered into by BCE Nexxia as principal, BCE Nexxia shall use
commercially reasonable efforts to obtain the right to assign such Dedicated
Third Party Provider Agreements to Clearwire upon Clearwire's request, provided
that Clearwire shall indemnify and hold BCE Nexxia harmless with respect to any
and all obligations or liabilities which arise following the date of an
assignment of a Dedicated Third Party Provider Agreement and shall use
commercially reasonable efforts to obtain a release of all liabilities BCE
Nexxia may have thereunder other than those relating to a BCE Nexxia breach. All
Third Party Provider Agreements in which Clearwire is principal shall include
provisions that identify BCE Nexxia as Clearwire's agent and give to BCE Nexxia
the right as agent to control, at Clearwire's expense,
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all rights to enforce the terms and conditions thereof. Provided BCE Nexxia
exercises its enforcement rights under any such Dedicated Third Party Provider
Agreement, whether as principal or as Clearwire's agent, as the case may be, BCE
Nexxia shall be deemed to have fulfilled all of its obligations and duties to
enforce such Dedicated Third Party Provider Agreements and to provide Services
in accordance with the performance standards and obligations set forth in
Section 2.3 and under this Section 2.6 to the extent of the adverse impact
resulting from the breach of such Dedicated Third Party Provider Agreements.
BCE Nexxia shall (unless otherwise requested by Clearwire in its sole discretion
from time to time), on and from the Effective date, be responsible for managing
on behalf of Clearwire Third Party Providers under the Dedicated Third Party
Provider Agreements. To that end, where BCE Nexxia is acting either as an agent
of Clearwire or as principal under a Dedicated Third Party Provider Agreement,
BCE Nexxia shall conduct itself in such a manner and use commercially reasonable
efforts to reduce the financial responsibility and liabilities of Clearwire
under the applicable Dedicated Third Party Provider Agreements. For greater
certainty, and provided that BCE Nexxia complies with the obligations set out in
this Section 2.6, BCE Nexxia shall not be liable to Clearwire, under any
circumstances, for the performance or non-performance of Third Party Providers
pursuant to Dedicated Third Party Provider Agreements.
2.7 IDEM: Prior to the execution of any Dedicated Third Party Agreements, unless
otherwise directed by Clearwire, and through the Project Management Office, BCE
Nexxia shall:
(a) Consult with Clearwire during the course of the negotiations, and
obtain written approval from Clearwire as provided in Section 2.6;
and
(b) make commercially reasonable efforts to negotiate arrangements that
shall provide Clearwire access to such Third Party Providers'
services on commercially advantageous terms, including appropriate
service level agreements and pricing parameters.
Without limiting the generality of the foregoing and subject to the limitation
on its liability set forth in Section 2.6, BCE Nexxia shall keep Clearwire
informed about performance issues or alleged breaches under any Dedicated Third
Party Provider Agreements, and shall undertake either as principal or as agent
for Clearwire such enforcement actions as may be directed by Clearwire from time
to time (including settlement of the dispute), provided that the action
requested by Clearwire does not violate Applicable Law, that Clearwire agrees to
reimburse BCE Nexxia for its reasonable, out-of-pocket costs in such enforcement
action, and that when acting upon such instructions BCE Nexxia is relieved of
its warranty obligations set forth in Section 2.3 to the extent impacted by such
instructions. Clearwire shall not take any action, or cause any action to be
taken, which would impair or jeopardize the delivery of services pursuant to the
Dedicated Third Party Provider Agreements.
2.8 TAKE BACK OF SERVICE ELEMENTS: Clearwire may, from time to time, request BCE
Nexxia to transfer or otherwise assign the accountability and responsibility for
the Service Elements provided on a Dedicated basis by Third Party Providers and
identified in Schedule 5 (the "TAKE BACK SERVICE ELEMENTS"), and BCE Nexxia
shall promptly accomplish such transfer or
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assignment. Such requests shall be deemed Change Communications hereunder and
shall be managed and administered by the Parties pursuant to Section 7 hereof.
For greater certainty, Clearwire hereby acknowledges that in assuming
accountability and responsibility for the delivery of Service Elements, which
were previously provided by BCE Nexxia, BCE Nexxia's ability to comply with the
obligation set out in Section 2.3 and Section 2.6 may be impacted and BCE Nexxia
shall be released from such obligation to the extent BCE Nexxia's compliance is
adversely affected by such transfer or assignment.
2.9 TITLE: Clearwire and BCE Nexxia agree that Clearwire shall own all rights to
equipment and third party Software, that are paid for by Clearwire and provided
on a Dedicated basis, even if the procurement was arranged and managed by BCE
Nexxia and even if such property is located on the premises of BCE Nexxia or a
Third Party Provider. BCE Nexxia shall deliver to Clearwire, at Clearwire's
request from time to time, bills of sale and other documents evidencing
Clearwire's ownership or other interests under this Agreement.
2.10 COOPERATION: The Parties shall cooperate with each other, including
providing information, approvals and acceptances, and making available
management decisions, as reasonably required by either Party so that it may
accomplish its obligations and responsibilities under this Agreement.
2.11 FULFILLMENT OF OBLIGATIONS: In order to give effect to this Agreement each
Party shall be required to perform its respective obligations under this
Agreement in a manner which is timely and reasonably complete. The Parties
acknowledge that any failure to perform by one Party in this respect may
negatively impact the other Party's ability to perform its own obligations.
2.12 CONDUCT OF BUSINESS: Each Party shall comply with all Applicable Laws and
shall conduct its business in a professional, competent and ethical manner so as
to enhance the business, reputation and goodwill associated with the Services
and VoIP Services.
2.13 OTHER OBLIGATIONS OF CLEARWIRE:
(a) CLEARWIRE PROVIDED EQUIPMENT OR SOFTWARE: Clearwire shall be
responsible for any equipment or Software which it provides, for
the supply, installation and maintenance of such equipment at sites
designated by Clearwire, and for ensuring that such equipment or
Software is (i) installed and maintained according to the
manufacturer's specifications and any specifications of BCE Nexxia
with respect to interoperability for the purpose of providing the
Services, and (ii) compatible with, and does not interfere with, the
Services; and(iii) in compliance with all Applicable Laws;
(b) ACCESS TO INFORMATION: Clearwire shall provide information,
including Confidential Information, and assistance as is reasonably
required by BCE Nexxia in order to enable BCE Nexxia to meet its
obligations under this Agreement;
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(c) FORECASTS: Clearwire shall endeavor to provide BCE Nexxia with
detailed forecast information, including demand for VoIP Service, as
part of the Quarterly Planning Documents, and network capacity
requirements, to assist BCE Nexxia with capacity and other Services
planning. BCE Nexxia acknowledges that Clearwire is a start-up
business, with limited experience forecasting usage of VoIP Service,
and that forecasts provided by Clearwire from time to time under
this Section or otherwise might be materially in error. Clearwire
acknowledges that the lack of accurate forecasts (if such forecasts
are materially in error) may impact BCE Nexxia's ability to
efficiently and effectively deliver the Services in the most cost
effective manner. The Parties acknowledge that such forecasts merely
provide an estimate of future requirements and do not reflect or
create any commitments or obligations which are binding on either
Party;
(d) MAINTENANCE INTERRUPTIONS: Clearwire shall, as reasonably required
by and in the reasonable discretion of BCE Nexxia, permit BCE Nexxia
to interrupt the Services from time to time in order to provide
maintenance in respect of the Services, on reasonable notice to
Clearwire;
(e) OUT OF TERRITORY OBLIGATION: Where Clearwire and/or any of its
Affiliates, may do so without violation of any Applicable Laws,
fiduciary duties or agreements with third parties, Clearwire and/or
its Affiliates shall consider BCE Nexxia as its preferred supplier
for the provision of services of a nature substantially similar to
the Services outside of the Territory, and to that end Clearwire and
its Affiliates shall, subject to the qualifications stated above in
this paragraph, provide BCE Nexxia with a ROFP pursuant mutatis
mutandis to Section 6.2 hereof, in all instances where Clearwire, or
any of its Affiliates, wishes to deploy VoIP services similar to the
VoIP Services outside of the Territory. If Clearwire had determined
that the potential for a violation of Applicable Laws, fiduciary
duties or agreements with third parties exists, Clearwire shall
provide BCE Nexxia with reasonable advance notice, prior to relying
on the exception provided in this Section 2.13 for potential
violation of Applicable Laws, fiduciary duties or agreements with
third parties, setting forth in sufficient detail the nature of the
potential violation in an effort to allow consultation between
Clearwire and BCE Nexxia regarding Clearwire's assessment of the
applicability of such exception. If it disagrees with Clearwire's
determination BCE Nexxia shall be entitled to invoke the dispute
resolution process provided in Section 17.1; provided, however,
specific performance shall not be a remedy available to BCE Nexxia.
In addition, Clearwire shall exercise reasonable efforts to generate
ROFP opportunities for BCE Nexxia for services substantially similar
in nature to the Services in all instances where Clearwire has an
equity or debt interest or otherwise has contracted arrangements
with an entity outside the Territory that is not an Affiliate and
wishes to deploy VoIP services similar in nature to the VoIP
Services outside of the Territory;
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(f) USAGE OF THE SERVICES: Clearwire shall take commercially reasonable
steps to ensure that its End Users do not: (i) use the VoIP Services
in such a manner that causes interference, or tampers with another
authorized user's use of the BCE Nexxia network; (ii) use VoIP
Services in a manner that violates the Acceptable Use Policy; or
(Hi) violate Applicable Laws;
(g) TAMPERING WITH SERVICES: Clearwire, its agents, employees or
representatives, shall not permit or assist others to use the
Services (i) in any manner which interferes unreasonably with BCE
Nexxia's network, or access thereto by other Persons; or (ii) for
any purpose or in any manner directly or indirectly in violation of
Applicable Laws;
(h) IMMEDIATE SUSPENSION OF SPECIFIC SERVICES AS A RESULT OF END-USER
ACTIONS: Clearwire shall include, as part of its End User
agreements, provisions which include an acceptable use policy
containing terms that are substantially similar to the terms of the
Acceptable Use Policy. In addition, Clearwire shall ensure that the
End User agreements include a provision disclaiming liability for
underlying service providers or suppliers (including BCE Nexxia) and
to the extent that any such policy or agreement includes
indemnification from a Clearwire End User, BCE Nexxia, in its
capacity as a service provider or supplier, shall be a beneficiary
thereof. Clearwire shall require each Clearwire End User accessing
the VoIP Services to agree to the terms set forth in an acceptable
use policy as contemplated above. Clearwire shall determine in its
sole discretion how the acceptable use policy will be presented to
its End Users, provided that such presentation shall be in such
manner as to be enforceable under the terms of the End User
agreement. The Parties shall establish within sixty (60) days from
the Effective Date a process respecting discontinuance of VoIP
Services to any particular End User that is identified by BCE Nexxia
or Clearwire as having violated the applicable acceptable use
policy. If the Parties are unable to agree on the foregoing process
respecting discontinuance of VoIP Services, BCE Nexxia shall have
the right, acting reasonably, to discontinue or suspend provision of
the Services, solely with respect to the activities of an End User
which gives rise to a breach of the Acceptable Use Policy and only
after Providing Clearwire with reasonable advance notice in the
circumstances;
(i) CLEARWIRE AFFILIATES: Clearwire shall cause all Persons which
subsequently become Affiliates and which provide VoIP Services in
the Territory to become parties to this Agreement, so long as doing
so is not in violation of Applicable Laws, fiduciary duties or
agreements with third parties. If Clearwire has determined that the
potential for a violation of Applicable Laws, fiduciary duties or
agreements with third parties exists, Clearwire shall provide BCE
Nexxia with reasonable advance notice, prior to relying on the
exception provided in this Section 2.13 for potential violation of
Applicable Laws, fiduciary duties or agreements with third parties
setting forth in sufficient detail the nature of the potential
violation in an effort to allow consultation between Clearwire and
BCE Nexxia regarding Clearwire's assessment of the applicability of
such exception.
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If it disagrees with Clearwire's determination BCE Nexxia shall be
entitled to invoke the dispute resolution process provided in
Section 17.1; provided, however, specific performance shall not be a
remedy available to BCE Nexxia.
2.14 OTHER OBLIGATIONS OF BCE NEXXIA:
(a) BCE NEXXIA PROVIDED EQUIPMENT OR SOFTWARE: Subject to the assistance
of Clearwire in providing maintenance and installation services in
the Territory, BCE Nexxia shall be responsible, for any equipment or
Software which it provides other than through Dedicated Third Party
Provider Agreements, for the supply, installation and maintenance of
such equipment and for ensuring that such equipment or Software is
(i) installed and maintained according to the manufacturer's
specifications, (ii) compatible with, and does not interfere with,
the Services or the VoIP Services, and (iii) in compliance with all
Applicable Laws.
(b) ACCESS TO INFORMATION: BCE Nexxia shall provide information,
including Confidential Information, and assistance as is reasonably
required by Clearwire in order to enable Clearwire to monitor BCE
Nexxia's performance under this Agreement and for Clearwire to
provide VoIP Services to End Users.
2.15 CLEARWIRE REPRESENTATIONS AND WARRANTIES: Clearwire Corporation and each of
its Affiliates signatory to this Agreement represents and warrants to BCE Nexxia
Corporation and ▇▇▇▇ Canada as follows, and agrees that each of their
representations and warranties in this Agreement shall continue to be true and
correct throughout the Term of this Agreement:
(a) ORGANIZATION AND GOOD STANDING. It is a corporation duly organized,
validly existing and in good standing under the laws of its
jurisdiction of incorporation.
(b) AUTHORIZATION AND VALIDITY OF AGREEEMENT. It has full corporate
power and authority to execute and deliver this Agreement and to
perform its obligations hereunder. The execution, delivery and
performance by it of this Agreement have been duly and validly
authorized and no additional corporate authorization or consent is
required in connection with the execution delivery and performance
by it of this Agreement. This Agreement has been duly and validly
executed and constitutes its valid and legally binding obligation,
enforceable against Clearwire in accordance with its terms, subject
to bankruptcy, insolvency, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors'
rights and to general principles of equity.
(c) CONFLICTS WITH OTHER AGREEMENTS. The execution of this Agreement by
it and the performance of its obligations hereunder does not and
will not violate or conflict with the terms and conditions of any
other agreement, arrangement or understanding entered into by it.
(d) AUTHORIZATIONS. It has obtained and shall maintain in full force
during the Term such federal, state and local authorizations,
including, but not limited to, from
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Regulatory Authorities, as are necessary to perform its obligations
under this Agreement.
(e) COMPLIANCE WITH LAW AND EXPORT CONTROLS. It shall at all times
comply with all applicable U.S. and foreign federal, state, and
local laws, rules, and regulations relating to the execution,
delivery, and performance of this Agreement. It shall not export or
re-export such items or any direct product thereof or undertake any
transaction in violation of any such laws or regulations. It shall
cooperate with BCE Nexxia, and shall coordinate compliance with BCE
Nexxia regarding all such export laws in respect of all such items
exported or imported hereunder.
(f) CAPITALIZATION. All Securities when issued and delivered by
Clearwire pursuant to the terms of this Agreement will be duly
authorized, validly issued, fully paid, and non-assessable, and free
and clear of all liens, changes, claims and encumbrances imposed by
or through Clearwire. The number of Class A Shares issuable pursuant
to the terms of this Agreement will be duly authorized, reserved and
maintained for issuance and delivery in accordance with the terms of
this Agreement at the time of issuance or, at any time during the
Term, Clearwire does not have a sufficient number of authorized but
unissued Class A Shares to enable Clearwire to meet its issuance and
delivery obligations pursuant to this Agreement, Clearwire will use
its best efforts to amend its certificate of incorporation to
increase its Class A Shares in an amount sufficient to comply with
its issuance and delivery obligations pursuant to this Agreement.
2.16 BCE NEXXIA REPRESENTATIONS AND WARRANTIES: Each of BCE Nexxia Corporation
and ▇▇▇▇ Canada represents and warrants to Clearwire Corporation as follows and
agrees that each of their representations and warranties in this Agreement shall
continue to be true and correct throughout the Term of this Agreement:
(a) ORGANIZATION AND GOOD STANDING. It is a corporation duly organized,
validly existing and in good standing under the laws of its
jurisdiction of incorporation.
(b) AUTHORIZATION AND VALIDITY OF AGREEMENT. It has full corporate power
and authority to execute and deliver this Agreement and to perform
its obligations hereunder. The execution, delivery and performance
by it of this Agreement have been duly and validly authorized and no
additional corporate authorization or consent is required in
connection with the execution delivery and performance by it of this
Agreement. This Agreement has been duly and validly executed and
constitutes its valid and legally binding obligation of it,
enforceable against it in accordance with its terms, subject to
bankruptcy, insolvency, reorganization, moratorium and similar laws
of general applicability relating to or affecting creditors' rights
and to general principled of equity.
(c) CONFLICTS WITH OTHER AGREEMENTS. The execution of this Agreement by
it and the performance of its obligations hereunder does not and
will not violate or conflict with the terms and conditions of any
other agreement, arrangement, or understanding entered into by it
where such a violation or conflict would have a
BCE NEXXIA/CLEARWIRE MASTER SUPPLY AGREEMENT
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materially adverse effect on it or its ability to perform its
obligations under this Agreement.
(d) AUTHORIZATIONS. It shall obtain and shall maintain in full force
during the Term such federal, state and local authorizations,
including, but not limited to, from Regulatory Authorities, as are
necessary to perform its obligations under this Agreement.
(e) COMPLIANCE WITH LAW AND EXPORT CONTROLS. It shall at all times
comply with all applicable U.S. and foreign federal, state, and
local laws, rules, and regulations relating to the execution,
delivery, and performance of this Agreement and Services, technology
and software covered by this Agreement provided by BCE Nexxia. It
shall not export or re-export such items or any direct product
thereof or undertake any transaction in violation of any such laws
or regulations. It shall cooperate with Clearwire, and shall
coordinate compliance with Clearwire regarding all such export laws
in respect of all such items exported or imported hereunder.
SECTION 3
CHARGES AND FINANCING
3.1 INVOICING TERMS:
(a) FREQUENCY; DETAIL: BCE Nexxia shall invoice Clearwire for Charges on
a monthly baiss specifying in each case whether the Charges were
incurred by it in Canadian or U.S. denominated amounts. Each invoice
shall be accompanied by a detailed description of the Services that
resulted in the Charges, and an itemization of the Charges,
including unit costs, usage calculations, recurring and
non-recurring charges, and other detail.
(b) PRICING PRINCIPLE EXCEPTION: Notwithstanding the general principle
that Services under this Agreement are to be provided by BCE Nexxia
to Clearwire on an [***] nothing herein shall be construed or
interpreted as to impose an obligation on BCE Nexxia to provide the
Services on an [***]
(i) [***]
(ii) [***]
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(c) PAYMENTS:
(i) Except to the extent disputed in good faith pursuant to Section
3.1(d), Clearwire shall pay each invoice in Canadian or U.S.
currency (as specified in the invoice) within thirty (30) days from
the date of its receipt, subject to a late payment charge at the
rate specified in such invoices together with any applicable
Impositions. The interest rate, which rate may vary from time to
time but shall not exceed 1.5% per month (19.56% per year), shall be
calculated from the date an invoice is received, if not paid within
the prescribed period.
(ii) Notwithstanding Section 3.1(b)(i) and subject to the notice
requirements set forth below, BCE Nexxia does not have any
obligation to continue to provide particular Service Elements that
are provided by Third Party Providers if BCE Nexxia's total
financial exposure arising from [***] and commitments made for the
benefit of Clearwire with respect to the Third Party Providers of
such particular Service Elements in the applicable Third Party
Provider Agreements, exceeds [***] Conversion from Canadian to U.S.
funds in making this calculation are to be based upon interbank
rates published in the Wall Street Journal on the day that the test
is applied, or the most recent, prior publication day. BCE Nexxia
shall provide Clearwire with regular written reports reflecting the
calculation of the amount of BCE Nexxia's financial exposure. Ten
(10) Business Days prior to the suspension of Services, BCE Nexxia
shall provide Clearwire with written notice that its financial
exposure exceeds [***] during which time Clearwire may provide BCE
Nexxia with assurances limiting BCE Nexxia's financial exposure in a
manner reasonably acceptable to the Parties, e.g., immediate payment
in cash or cash equivalents, prepayment of amounts due with respect
to the Third Party Provider providing the particular Service
Elements referred to above, the establishment of appropriate letters
of credit, securitization of Clearwire's obligations, or third party
guaranties from financially sound Persons.
(c) CHALLENGE: Subject to the provisions of Section 5.3, if Clearwire
challenges any amounts included within the definition of Charges,
BCE Nexxia shall deliver to Clearwire an officer's certificate
attesting to the accuracy of the challenged Charges and providing
reasonably detailed explanation and support for such Charges. If
Clearwire still challenges the Charges, either Party may submit the
matter to the Dispute resolution process in Section 17. Clearwire
shall not be required to pay the disputed portion of any invoice
until the dispute is resolved, either directly by the Parties or
through the Dispute resolution process in Section 17.
3.2 ADDITIONAL FEE: In addition to any payment for Charges, BCE Nexxia shall be
entitled to an additional fee during the Term of this Agreement, calculated and
payable as follows:
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(a) DETERMINATION OF FEE:
(i) Increase in the Number of End Users: At the end of each calendar
quarter, Clearwire shall promptly, but no later than thirty (30)
days following the end of such quarter, determine the number of
Clearwire End Users as of such date who have paid Clearwire for
three (3) months of VoIP Services where VoIP Services are identified
as a separate line item or charge or, if not identified as a
separate line item or charge, where Clearwire has been paid for
three (3) months of any services comprised at least in part of VoIP
Services. The increase, if any, in the number of End Users over the
highest number of End Users for any calendar quarter preceding such
calendar quarter (the "NEW END USERS") shall be multiplied by
applicable New End User Payment (as defined below) to determine the
amount due to BCE Nexxia and payable as provided below. The "NEW END
USER PAYMENT" shall be equal to [***] until such time as the
aggregate total of all of Clearwire's End Users equals [***] at
which time the amount shall be reduced, on a going forward basis, to
[***] if there are no New End Users for a given calendar quarter or
there is a decrease in the number of Clearwire's End Users for a
given calendar quarter, then no fee shall be payable under this
Section 3.2(a)(i) for such calendar quarter. For purposes of the
calculation of New End Users, only End Users of VoIP Services that
are supported by BCE Nexxia through the arrangement and supply of
the Services as provided herein shall be included.
(ii) ADDITIONAL Lines: An End User may purchase additional service
from Clearwire that enables a separate and distinct simultaneous
conversation ("ADDITIONAL LINES"), as distinguished from multiple
numbers. At the end of each calendar quarter, Clearwire shall
promptly, but no later than thirty (30) days following the end of
such quarter, determine the number of Additional Lines for each
Clearwire End User as of such date who have paid Clearwire for three
(3) months of Additional Lines where Additional Lines are identified
as a separate line item or charge or, if not identified as a
separate line item or charge, where Clearwire has been paid for
three (3) months of any services comprised at least in part of
Additional Lines. The increase, if any, in the number of Additional
Lines over the highest number of Additional Lines for any calendar
quarter preceding such calendar quarter (the "NEW ADDITIONAL LINES")
shall be multiplied by Clearwire's average revenue per New
Additional Line during such quarter, taking into account for
purposes of determining such average only those Additional Lines for
which Clearwire charges its End Users, and payable as provided
below. If there are no New Additional Lines for a given calendar
quarter or there is a decrease in the number of Additional Lines for
a given calendar quarter, then no fee shall be payable under this
Section 3.2(a)(ii) for such calendar quarter. For purposes of the
calculation of this portion of the additional fee, only Additional
Lines of End Users of VoIP Services that are supported by BCE Nexxia
through the arrangement and supply of the Services as provided
herein shall be included.
(b) CHALLENGE: BCE Nexxia may challenge Clearwire's New End User
calculation
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pursuant to Section 3.2 (a), if BCE Nexxia, acting in good faith,
believes that Clearwire's calculation is in error, in which case
Clearwire shall deliver to BCE Nexxia an officer's certificate
attesting to the accuracy of the challenged number of New End Users
and providing reasonably detailed explanation and support for such
calculation. If BCE Nexxia still challenges the number of New End
Users for the purpose of Section 3.2(a), either Party may submit the
matter to the Dispute resolution process in Section 17, in which
event no payment shall be due with respect to the disputed
calculation until resolution of the Dispute in accordance with
Section 17. Notwithstanding the foregoing, Clearwire shall be
required to issue Class A Shares or make cash payment, pursuant to
Section 3.2(c), with respect to any undisputed New End User.
(c) PAYMENT IN EQUITY OR CASH. If Clearwire has closed a round of equity
financing in which shares of Clearwire's Class A common stock
("CLASS A SHARES") or any other equity securities convertible into
Class A Shares ("CONVERTIBLE SECURITIES") were sold to Persons other
than current shareholders of Clearwire exercising conversion rights
previously granted (provided that any sale to any Affiliate of
Clearwire shall be for an amount of at least Ten Million Dollars
($10,000,000) in order to be an admissible round of equity financing
under this Section 3.2), within ninety (90) days prior to the end of
the applicable calendar quarter, the amount, if any, due to BCE
Nexxia for such calendar quarter under Section 3.2(a) shall be paid
by the issuance to BCE Nexxia Corporation or ▇▇▇▇ Canada (as
designated by BCE Nexxia) by Clearwire of additional Class A Shares.
The number of Class A Shares pursuant to Section 3.2(a) to be issued
shall be calculated by dividing the total amount due to BCE Nexxia
for such calendar quarter by the price per share paid for any Class
A Shares (or the conversion price at the time of issuance of any
such Convertible Securities, as applicable) by such Persons in such
equity financing. If no such round of equity financing has been
closed within such ninety (90) day period, Clearwire shall, at its
option, either pay BCE Nexxia Corporation or ▇▇▇▇ Canada (as
designated by BCE Nexxia) the amount due in cash or by the issuance
to BCE Nexxia Corporation or ▇▇▇▇ Canada (as designated by BCE
Nexxia) of Class A Shares based upon the price per share paid for
any Class A Shares (or the conversion price at the time of issuance
of any such Convertible Securities, as applicable) in the most
recently closed round of equity financing regardless of when such
round of equity financing closed (giving effect to any stock split,
stock dividend, reserve stock split, recapitalization,
reorganization or other distribution). In any case, the Class A
Shares shall be issued or the cash payment made within fifteen (15)
days following the date that Clearwire confirms the number of New
End Users. If the fee payable in respect of New End Users receiving
Clearwire's VoIP Services through a reseller becomes unreasonable in
light of Clearwire's arrangements with such reseller in the
reasonable determination of the Parties, then the Parties will
negotiate in good faith appropriate changes to the amount payable to
BCE Nexxia for each such New End User under this Section 3.2. In the
event of a termination of this Agreement for any reason, other than
as a result of a Material Breach by BCE Nexxia, a determination of
the number of New End Users at the date of
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termination (following, for greater certainty, the Transition
Assistance Period) will be made as provided above and Clearwire
shall pay to BCE Nexxia Corporation or ▇▇▇▇ Canada (as designated by
BCE Nexxia) an amount equal to the number of such New End Users
multiplied by the applicable New End User Payment. In all cases,
Clearwire shall be obligated to pay Impositions, if any, applicable
to the payment of the Additional Fees.
(d) TAX EFFICIENCIES. The Parties agree to fully cooperate with each
other to enable each to more accurately determine the proper
treatment of applicable Impositions to the Services provided
pursuant to this Agreement, in order to determine their respective
tax liability and to minimize such liability to the extent legally
permissible. BCE Nexxia shall provide to Clearwire at appropriate
intervals, a completed and executed Form, W-8BEN, Certificate of
foreign Status of Beneficial Owner for United States Tax
Withholding, in support of BCE Nexxia's claim that all or a portion
of the payments made by Clearwire pursuant to Section 3.2 are exempt
from any withholding taxes or are eligible to a reduced rate of
withholding taxes.
(e) REPRESENTATIONS AND WARRANTIES. Each of BCE Nexxia Corporation and
▇▇▇▇ Canada represents and warrants to Clearwire that the following
statements are true and correct on the Effective Date and will be
true and correct on the date of issuance of any Class A Shares under
this Section 3.2:
(i) It is an "accredited investor" as that term is defined in Rule
501 of Regulation D promulgated under the Securities Act of 1933, as
amended (the "SECURITIES ACT"). ▇▇▇▇ Canada is not a "U.S.Person" as
that term is defined under Rule 902 of Regulation S Promulgated
under the Securities Act. ▇▇▇▇ Canada is not acquiring the
Securities for the account or benefit of any U.S. Person.
(ii) The Class A Shares to be acquired under this Section 3.2 (the
"SECURITIES") are being acquired by BCE Nexxia for investment
purpose only, for its own account and not with the view to any
resale or distribution thereof, and it is not participating,
directly or indirectly, in an underwriting of such Securities, and
will not take, or cause to be taken, any action that would cause it
to be deemed an "underwriter" of such Securities as defined in
Section 2(11) of the Securities Act.
(iii) It acknowledges that is has been offered an opportunity to ask
questions of, and received answers from, Clearwire Corporation
concerning Clearwire Corporation and its proposed investments, and
that, to its knowledge, Clearwire Corporation has fully complied
with any request for such information.
(iv) It has been furnished Clearwire Corporation's Disclosure
Memorandum, dated January 10, 2005, the exhibits thereto and any
other documents which may have been made available upon request
(collectively, the "OFFERING DOCUMENTS"). It has carefully read the
Offering Documents and understands and
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has evaluated the risks of a purchase of the Securities, including
the risks set forth in the Offering Documents under "Risk Factors".
(v) It has such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of an
investment in the Securities, is able to bear such risks, and has
obtained, in its judgment, sufficient information from Clearwire
Corporation to evaluate the merits and risks of an investment in the
Securities. It has evaluated the risks of investing in Clearwire
Corporation and has determined that the Securities are a suitable
investment for it.
(vi) Neither Clearwire nor any person acting on Clearwire's behalf
has offered, offered to sell, offered for sale of sold the Class A
Shares to be issued under this Section 3.2 to it by means of any
form or general solicitation or general advertising.
(vii) It is not relying on Clearwire Corporation with respect to tax
and other economic considerations involved in this transaction. It
acknowledges that it has been advised by Clearwire Corporation to
consult with its tax or financial consultants prior to entering
into this Agreement.
(viii) This Agreement has been executed by ▇▇▇▇ Canada outside the
"United States" (as defined in Rule 902 (i) of Regulation S). ▇▇▇▇
Canada is acquiring the Securities in an "offshore transaction" (as
defined in Rule 902(h) of Regulation S). The Securities were not
offered to ▇▇▇▇ Canada in the United States and at the time of
execution of this Agreement and the time of any offer to ▇▇▇▇ Canada
to purchase the Securities hereunder, ▇▇▇▇ Canada was physically
outside of the United States.
(f) RESTRICTED SECURITIES. Each of BCE Nexxia Corporation and ▇▇▇▇
Canada understands that the Securities have not been, and will not
be, registered under the Securities Act, by reason of a specific
exemption from the registration provisions of the Securities Act
which depends upon, among other things, the bona fide nature of the
investment intent and the accuracy of BCE Nexxia Corporation and
▇▇▇▇ Canada's respresentations as expressed herein. Each of BCE
Nexxia Corporation and ▇▇▇▇ Canada understands that the Securities
are "restricted securities" under applicable U.S. federal and state
securities laws, and it agrees not to transfer the Securities unless
the transfer of the Securities is made (i) in accordance with the
provisions of Regulation S under the Securities Act, (ii) pursuant
to an effective registration under the Securities Act and
qualification under any applicable state securities laws, or (iii)
pursuant to an available exemption from such registration and
qualification requirements. Each of BCE Nexxia Corporation and ▇▇▇▇
Canada further agrees not to engage in hedging transactions with
regard to the Securities unless in compliance with the Securities
Act. Each of BCE Nexxia Corporation and ▇▇▇▇ Canada acknowledge that
Clearwire Corporation has no obligation to register or qualify the
Securities for resale, except as set forth in that certain
Registration Rights Agreement between Clearwire and certain of its
stockholders, dated March 16, 2004, and that Clearwire Corporation
is required to refuse to register any transfer not made in
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accordance with the provisions of this Section 3.2 (d) Each of BCE
Nexxia Corporation and ▇▇▇▇ Canada further acknowledges that if an
exemption from registration or qualification is available, it may be
conditioned on various requirements including, but not limited to,
the time and manner of sale, the holding period for the Securities,
and on requirements relating to Clearwire Corporation which are
outside of its control, and which Clearwire Corporation is under no
obligation to satisfy and may not be able to satisfy. Each of BCE
Nexxia Corporation and ▇▇▇▇ Canada also acknowledges that the
certificates representing the Securities shall bear the restrictive
legends required under applicable federal and state securities laws
and the Stockholders Agreement (as defined below).
(g) STOCKHOLDERS AND OTHER AGREEMENTS. As a condition to Clearwire
Corporation's obligation to issue any Class A Shares to BCE Nexxia
Corporation and ▇▇▇▇ Canada hereunder, each of BCE Nexxia
Corporation and ▇▇▇▇ Canada agrees to execute to the extent not
already done a joinder to that certain Amended and Restated
Stockholders Agreement, dated as of March 16, 2004 between Clearwire
Corporation and its stockholders (THE "STOCKHOLDERS AGREEMENT") and
become bound thereby and benefit from the rights thereunder.
Clearwire Corporation also agrees to execute such joinder. In
addition, to the extent BCE Nexxia Corporation or ▇▇▇▇ Canada is not
a party thereof at the time it becomes an owner of Class A Shares
under this Section 3.2, the Parties agree to execute: (i) a joinder
to that certain Registration Rights Agreement between Clearwire
Corporation and certain of its stockholders, dated March 16, 2004
and (ii) that certain side agreement between Clearwire Corporation,
▇▇▇▇ Canada and Eagle River Holdings, LLC, dated as of the date of
this Agreement ("SIDE AGREEMENT").
(h) ASSIGNMENT TO AFFILIATES. Each of BCE Nexxia Corporation and ▇▇▇▇
Canada shall be permitted to assign its rights under this Section
3.2 to any one of its Affiliates; provided, that such Affiliate
makes the representations and warranties set forth in this Section
3.2 to Clearwire and agrees to fulfill BCE Nexxia Corporation and
▇▇▇▇ Canada's obligations hereunder, including, without limitation,
the obligation to execute a joinder to the Stockholders Agreement.
3.3 FINANCING: BCE Nexxia shall make available to Clearwire financing in the
amount of Ten Million Dollars ($10,000,000) as outlined in the Term Sheet,
attached hereto as Schedule 3. Clearwire shall have the right to draw the entire
amount of such financing in one or more draws, on or after the date of execution
of the loan documents evidencing such financing, but Clearwire will not have the
right to re-borrow amounts borrowed and repaid by Clearwire.
3.4 [***]
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[***]
SECTION 4
TERM AND TERMINATION
4.1 TERM: The term and conditions of this Agreement shall remain in effect from
the Effective Date until terminated in accordance herewith (the "TERM");
provided, however, either Party may terminate this Agreement without cause, upon
twelve (12) months prior written notice, which termination notice can be served
by either Party to the other at any time beginning on October 1, 2007 provided
however that BCE Nexxia will be entitled to serve such termination notice at any
time following a Change of Control of Clearwire LLC or Clearwire Corporation in
favor of a Major Provider or a Canadian Competitor, and that Clearwire will be
entitled to serve such termination notice at any time following a Change of
Control of BCE Nexxia, BCE Inc. or ▇▇▇▇ Canada in favor of a Major Provider. A
party that receives a notice of a proposed Change of Control (the "NON-CHANGING
PARTY") in accordance with this Section 4.1 shall respond within sixty days of
receipt of such notice to inform the other Party as to the Non-Changing Party's
election regarding the exercise of its termination rights under this section
4.1. A failure of a Non-Changing Party to respond within such sixty day period
shall constitute a decision by the Non-Changing Party not to terminate this
Agreement as provided in this Section 4.1 as a result of such Change of Control.
For greater certainty and for the purpose of this Agreement, the Term shall also
be deemed to include any Termination Transition Period as contemplated by this
Agreement except as otherwise provided in this Agreement.
4.2 TERMINATION FOR CAUSE:
(a) Either Party (the "NON-DEFAULTING PARTY") may elect to terminate, in
whole or in part, without liability, this Agreement upon the other
Party's (the "DEFAULTING PARTY") failure to cure a curable Material
Breach hereunder within thirty (30) days after delivery of written
notice thereof. Notwithstanding the foregoing, if the Material
Breach by the Defaulting Party reasonably requires more than thirty
(30) days to cure, the Defaulting Party shall be deemed in
compliance with the terms and conditions of the Agreement, provided
that the
[*** Confidential Treatment Requested]
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action taken to cure the Material Breach is promptly commenced upon
receipt by the Defaulting Party of a notice of Material Breach, and
is thereafter continuously prosecuted with due diligence to
completion and is completed within a reasonable period of time, and
provided that the Defaulting Party keeps the Non-Defaulting Party
well informed at all times of its progress in curing the
non-compliance. The failure by Clearwire to pay any undisputed
amounts due or issue any of the equity interests under Section 3
within thirty (30) days after receipt of notice of non-payment,
without any requirement for any additional notice, shall constitute
a Material Breach for which BCE Nexxia may terminate this Agreement.
(b) Either Party (the "TERMINATING PARTY") may elect to terminate this
Agreement with no liability, if the other party, or such other
Party's parent becomes Financially Uncertain (the "AT RISK PARTY").
For the purpose of this Section a Party, or its parent, shall be
considered "Financially Uncertain" if it:
(i) generally fails to pay, or admits in writing its inability to
pay, material debts when they become due, and fails to pay
such debts within thirty (30) days following its receipt of
notice from any other entity that payment is past due;
(ii) subject to any writ, judgement, warrant of attachment,
execution, or similar process issued or levied against a
substantial part of its property, assets, or business; or
(iii) takes or has taken or has instituted against it any action or
proceeding whether voluntary or involuntary which has an
object or may result in the bankruptcy or winding up or
reorganization of a Party, or a Party's parent other than a
voluntary winding up or reorganization by members for the
purpose of a reconstruction or amalgamation, or is placed
under official management or enters into a compromise or other
arrangement with its creditors or any class of them or an
administrator, trustee, receiver, manager, or similar person
is appointed to carry on its business or to take control or
possession of any of its assets for the benefit of its
creditors or any of them.
The At Risk Party shall notify the Terminating Party of the
occurrence of any event specified above within three (3) Business
Days, or within a reasonable period thereafter, of their receipt of
notice of, or knowledge of, any occurrence of such an event, or
alternatively provide confirmation in writing within three (3)
Business Days, or within a reasonable period thereafter, upon
request from the Terminating Party, whether or not any of the above
event has occurred. In addition, if a proceeding is commenced under
any provision of the United States Bankruptcy Code, voluntary of
involuntary, by or against a Party or a Party's parent, and this
Agreement has not been terminated, the other Party may file a
request with the Bankruptcy Court to have the court set a date
within sixty (60)
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days after the commencement of the case, by which the debtor shall
assume or reject this Agreement, and the debtor shall cooperate and
take whatever steps are necessary to assume or reject such contracts
by such date.
A Party shall not be considered an At Risk Party under the foregoing
descriptions if an involuntary bankruptcy procedure is instituted
against that Party by any third party and the Party contests the
involuntary bankruptcy procedure in good faith and within a
reasonable period of time. A Party shall not be considered an At
Risk Party under the foregoing descriptions if a writ, warrant of
attachment, execution, or similar process is issued or levied
against a substantial part of the Party's property, assets or
business as a result of an involuntary bankruptcy procedure filed by
any third party and the Party contests the involuntary bankruptcy
procedure in good faith and within a reasonable period of time.
(c) In the event the Parties are unable to reach an agreement on an
appropriate manner for addressing whether (each of the following a
"TERMINATION DISPUTE"):
(i) a Party is Financially Uncertain pursuant to Section 4.2(b);
(ii) a Material Breach has occurred;
(iii) a Material Breach is cured as contemplated in
Section 4.2(a); or
(iv) a Material Breach is not capable of being remedied,
either Party may request in writing that such matter be referred to the dispute
resolution mechanism set out in Section 17 for an appropriate resolution.
4.3 TERMINATION TRANSITION ASSISTANCE: In the event of a termination for
convenience or for cause by either BCE Nexxia or Clearwire pursuant to Section
4.1, BCE Nexxia shall provide Termination Transition Assistance accordance with
the provisions hereof, including the preparation of one or more plans in respect
thereof which shall include, without limitation, the transfer of possession or
assignment of any Take Back Service Elements pursuant to Section 2.8. The
Parties shall act in good faith and reasonably and shall develop and implement
transition plan(s); with the intent to reduce the likelihood of any material
adverse impact to End Users, including suspension of VoIP Services to End Users
or degradation in the Services. For greater certainty, BCE Nexxia shall not be
required and Clearwire shall not be authorized, as part of Termination
Transition Assistance, to respectively provide or seek the removal of any BCE
Nexxia Deployed IP when such BCE Nexxia Deployed IP was deployed in Canada prior
to the commencement of a Termination Transition Period.
4.4 TERMINATION FOR CONVENIENCE - CHARGES FOR TRANSITION: In the event of a
termination by Clearwire for convenience pursuant to Section 4.1, and in
consideration for providing Termination Transition Assistance to Clearwire, in
accordance with Section 4.3, to the extent that the Services are being provided
on a continuing basis as part of the Termination Transition Assistance,
Clearwire shall pay the Charges, as contemplated in Section 3.1 and any fees
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pursuant to Section 3.2. In addition to the foregoing, Clearwire shall
compensate and indemnify BCE Nexxia for any BCE Nexxia Out-of-Pocket Termination
Costs other than any Contract Termination Costs that result from BCE Nexxia's
breach of an agreement with a Third Party Provider, where such breach has not
been caused by or as a result of the termination of this Agreement by Clearwire
pursuant to this Section 4.4.
4.5 BCE NEXXIA TERMINATION - CHARGES FOR TRANSITION: In the event of a
termination by Clearwire for cause pursuant to Section 4.2, or a termination by
BCE Nexxia for convenience pursuant to Section 4.1, BCE Nexxia shall provide,
during a Termination Transition Period, Termination Transition Assistance in
accordance with Section 4.3. For greater certainty nothing herein shall be
construed as releasing Clearwire, during the Termination Transition Period, from
the obligation to pay to BCE Nexxia the Charges associated with the provision of
the Services, as contemplated in Section 3.1 and the payment of any fees
pursuant to Section 3.2, provided that Clearwire shall not be required to make
any payment to BCE Nexxia with respect to BCE Nexxia Out-of-Pocket Termination
Costs (other than Contract Termination Costs associated with Dedicated Third
Party Provider Agreements) and that if Clearwire terminates this Agreement for
cause, Clearwire shall not be required to pay any fees pursuant to Section 3.2
for any period after termination of this Agreement.
4.6 CLEARWIRE TERMINATION FOR CAUSE - TERMINATION COSTS: In the event of a
termination by BCE Nexxia for cause pursuant to Section 4.2 hereof, provided
that Clearwire agrees to pay in advance all Charges incurred by BCE Nexxia in
the Termination Transition Assistance Period, BCE Nexxia shall provide, during a
Termination Transition Period, Termination Transition Assistance in accordance
with Section 4.3. Clearwire shall pay to BCE Nexxia all Charges associated with
the supply of Services and any additional Fees pursuant to Section 3.2 hereof,
up to and including the actual date of termination of this Agreement, and shall
compensate and indemnify BCE Nexxia for any BCE Nexxia Out-of-Pocket Termination
Costs other than any Contract Termination Costs that result from BCE Nexxia's
breach of an agreement with a Third Parry Provider.
4.7. CONSEQUENCES OF TERMINATION: Upon the termination (on the date specified in
a notice of termination or otherwise herein provided for) and except as
otherwise set forth herein or as otherwise agreed to for the Termination
Transition Period:
(a) each Party shall reconvey, relinquish and release to the other Party
all rights and privileges granted by this Agreement, except that a
Party shall not relinquish any Intellectual Property Rights that
have been perpetually licensed to a a Party under Section 11.6 of
this Agreement with respect to Joint Inventions;
(b) each Party shall cease using Confidential Information and
Intellectual Property of the other Party. All licenses to each
Party's Intellectual Property granted under Section 11 shall
terminate. BCE Nexxia grants to Clearwire, effective as of
termination of this Agreement, a world wide, non-exclusive and fully
paid license to Inventions developed jointly by employees of
Clearwire and BCE Nexxia while engaged in work pursuant to this
Agreement, provided that such Inventions (i) are integrated into
Clearwire Products that exist as of the date of
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termination of this Agreement, and that they are also integrated in
any End Users hardware device (including existing inventory as of
the date of termination of this Agreement) and (ii) are used by
existing End Users as of the date of termination of this Agreement
(save and except with respect to existing inventory as of the date
of termination of this Agreement). Should Clearwire require any
licenses to any specific BCE Nexxia Deployed IP such BCE Nexxia
Deployed IP (except as the same relates to Non-Dedicated Systems)
may be made available, subject to the Parties agreeing to
commercially reasonable terms and only to the extent that such
requested BCE Nexxia Deployed IP is also made available to
non-Affiliated entities of BCE Nexxia; and return of any and all
Clearwire assets located on BCE Nexxia premises, and assignment of
all Take Back Service Elements upon Clearwire's request.
SECTION 5
GOVERNANCE
5.1 EXECUTIVE OPERATING COMMITTEE; The Parties hereby agree to establish an
operating committee (the "EXECUTIVE OPERATING COMMITTEE")to provide strategic
guidance and oversight in connection with the Parties' objectives and
obligations set forth herein.
(a) The Executive Operating Committee shall consist of an equal number
of representatives of each Party. The initial designees to the
Executive Operating Committee are set out in Schedule 4. The members
of the Executive Operating Committee shall be at the senior
executive level of each Party, and each representative shall have
appropriate knowledge and experience relevant to the substance of
the relationship contemplated herein.
(b) The Executive Operating Committee shall facilitate the resolution of
material disagreements between the Parties to the extent they have
not been resolved by the Project Management Office.
(c) The Executive Operating Committee shall review Quarterly Planning
Documents prepared and submitted by the Project Management Office,
including the settlement of any disputes arising out of the
preparation of such Quarterly Planning Documents.
(d) The Executive Operating Committee shall consider and consult on
market trends, sales and marketing strategies, product development,
quality of service, customer satisfaction and other matters agreed
upon by the Parties, for the purpose, among other matters, of
maximizing efficiencies and facilitating the provision of the
Services and the delivery of VoIP Services to End Users.
(e) Each Party, in its reasonable discretion, may replace its
representatives on the Executive Operating Committee, as each Party
deems appropriate upon five (5) days prior written notice to the
other Party. In addition, the number of members
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on the Executive Operating Committee may be increased or decreased
as mutually agreed to by the Parties.
(f) The Parties shall consult with each other prior to appointing their
representatives on the Executive Operating Committee, but
appointments shall be made in the sole discretion of the appointing
Party.
(g) Each Party shall name one of its representatives to serve as a
co-chairperson of the Executive Operating Committee.
(h) The Executive Operating Committee shall meet on a quarterly each
year in person. The meetings shall be held alternatively at each
Party's place of business (or as otherwise agreed from time to time
by the Parties). Except for the regular, quarterly meetings, all
Executive Operating Committee representatives must be present at a
meeting of the Executive Operating Committee either by phone, in
person or by proxy. The Executive Operating Committee shall also
meet (which meeting may be in person or by proxy or by
teleconference) within ten (10) Business Days' written request by
either BCE Nexxia or Clearwire to review an unresolved claim or
issue.
(i) The Executive Operating Committee may appoint subcommittees for
individual projects and for any other activities for which the
Executive Operating Committee determines a subcommittee is
appropriate.
(j) In addition to the foregoing, the Executive Operating Committee
shall meet to: (a) review progress on any projects or initiatives of
the Parties; (b) facilitate the resolution of any disputes between
the Parties; and (c) direct the Project Management Office to perform
additional activities as it sees fit.
(k) At the end of each calendar quarter during the term of the
Agreement, the co-chairpersons of the Executive Operating Committee
shall jointly agree on an "Executive Operating Committee Progress
Report" for delivery to designated senior executives of the Parties.
(l) the Executive Operating Committee shall not have authority to modify
the terms of this Agreement or to waive the rights of either Party.
Any such modification or waiver must be in writing, as provided in
this Agreement. All actions of the Executive Operating Committee are
subject to approval by both Parties.
5.2 PROJECT MANAGEMENT OFFICE: The Parties shall create a project management
office (the "PROJECT MANAGEMENT OFFICE"). The Project Management Office shall
consist of an equal number of representatives of each Party, or any additional
employees or representatives from BCE Nexxia and Clearwire whose involvement
shall be required from time to time. The initial designees to the Project
Management Office are set out in Schedule 4. Staffing requirements of the
Project Management Office shall be reviewed by the Executive Operating Committee
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quarterly, or on "as needed" basis.
(a) The representatives of each Party on the Project Management Office
shall prepare and submit for approval to the Executive Operating
Committee, within forty-five (45) days of the Effective Date, a
quarterly operations plan for the first quarter following the
Effective Date together with a view of the following two quarters
(the "INITIAL QUARTERLY PLANNING DOCUMENT") which shall establish
the expected role of each Party, asset ownership, coordination of
the acquisition of Service Elements and their deployment schedule,
together with, without limitation, roadmaps as the same relate to
the delivery of the Services and the deployment of a VoIP Services
offerings to End Users. Fifteen (15) Business Days prior to the end
each quarterly period, the Project Management Office shall develop
and submit for approval to the Executive Operating Office a revised
operations plan for the following quarter, with a view of the
following two quarters (each such quarterly business plans being a
"QUARTERLY PLANNING DOCUMENT"). Included in the Initial Quarterly
Planning Document and each subsequent Quarterly Planning Document
shall be a complete description of the Charges BCE Nexxia intends to
incur in connection with providing Services to Clearwire together
with a description of all Dedicated Third Party Provider Agreements
it proposes to enter into pursuant to Section 2.7 hereof. The
written approval of the Initial Quarterly Document and any
subsequent Quarterly Planning Document by a Clearwire officer
holding the title of Vice President or President shall constitute
Clearwire's authorization to incur the costs and expenses included
in Charges. Clearwire may not challenge decisions to incur Charges
included in the Initial Quarterly Planning Document or any
subsequent Quarterly Planning Document once it has been approved in
the manner provided in this Section 5.2.
(b) Subject to the Executive Operating Committee's oversight, the
Project Management shall, without limitation:
(i) oversee general operational activities as such activities
relate to the supply by BCE Nexxia and the purchase by
Clearwire of the Services and other day-to-day business
operations;
(ii) oversee the identification of Future Services, including the
development of Service Plans in association therewith,
together with the administration of the First Right of
Proposal pursuant to Section 6.2; and
(iii) perform other activities as the Executive Operating Committee
may from time-to-time direct.
(c) Each Party, in its reasonable discretion, may replace its
representatives on the Project Management Office as each Party deems
appropriate upon five (5) days prior written notice to the other
Party. In addition, the number of members on the Project Management
Office may be increased or decreased as mutually agreed to by the
Parties.
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(d) The Project Management Office shall meet on a monthly basis until
such time as there are twenty thousand (20,000) End Users
subscribing to the VoIP Services and on a quarterly basis, or as
otherwise requested by Clearwire, thereafter. The meetings shall be
held alternatively at each Party's place of business (or as
otherwise agreed from time to time by the Parties). All Project
Management Office representatives must be present at a meeting of
the Project Management Office either by phone, in person or by
proxy. The Project Management Office shall also meet (which meeting
may be in person or by teleconference) within ten (10) Business
Days' of a written request by either BCE Nexxia or Clearwire to
review an unresolved claim or issue.
(e) The Project Management Office shall not have authority to modify the
terms of this Agreement or to waive the rights of either Party. Any
such modification or waiver must be in writing, as provided in this
Agreement. All actions of the Project Management Office are subject
to approval by both Parties.
5.3 BUDGET: Subject to Section 2.13(c), as part of the Services, BCE Nexxia
shall develop and provide Clearwire with, on a quarterly basis, a detailed
budget for the Services, for Clearwire's review and approval which shall be
included in the applicable Quarterly Planning Document. BCE Nexxia shall update
the budget in reasonable intervals, as circumstances warrant, and shall give
Clearwire written notice if any budgeted item or category of expenses or Charges
is expected to exceed the budget for such item in a material amount. BCE Nexxia
shall provide such notice before incurring the charge that is in excess of the
budget for such item. Upon receipt of such notice, Clearwire shall promptly
review the proposed Charges and budget and either approve such Charges or
consult with BCE Nexxia regarding any necessary changes to adhere to the budget.
For greater certainty Clearwire hereby acknowledges that the budget for the
initial period commencing on the Effective Date and including the next two (2)
full calendar quarters, shall represent estimated categories plus amounts for
Charges.
SECTION 6
FUTURE SERVICES AND RIGHT OF FIRST PROPOSAL
6.1 FUTURE SERVICES: Without limiting BCE Nexxia's rights pursuant to Section
6.2 hereof, the Parties agree to work cooperatively and in good faith as
follows:
(a) The Parties intend to explore such opportunities with a view to
increasing the opportunities for the use and deployment of the
Future Services (the "NEW DEVELOPMENT INITIATIVES"). Further to the
development of New Development Initiatives the Parties shall develop
a common understanding of service trends and suggestions for
improved cost effectiveness and enhancement with respect to the
provisioning of Future Services.
(b) The Project Management Office shall, within ninety (90) days
following the appointment of the Project Management Office, develop
an initial list of New Development Initiatives to be examined by the
Executive Operating Committee.
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(c) The list of and relative priority to be accorded to each of the New
Development Initiatives shall be reviewed and updated each quarter
by the Project Management Office. If the Project Management Office
determines not to pursue a New Development Initiative, or cannot
agree as to how to pursue a New Development Initiative, the Project
Management Office, or any of its members, shall report on an
expedited basis the recommendation of the Project Management Office,
or lack thereof, to the Executive Operating Committee.
(d) Upon the determination by the Project Management Office that a
sufficient commonality of interest exists for the joint development
of a New Development Initiative, it shall designate a team
("DEVELOPMENT TEAM") consisting of a representative from each of BCE
Nexxia and Clearwire with the applicable expertise to be responsible
for the New Development Initiative. The Development Team shall be
instructed to prepare and submit to the Project Management Office a
timetable for the presentation of a series of recommendations in
respect of the New Development Initiatives ("SERVICE PLANS"). The
Services Plans shall include long range plans and short range plans
as such plans relate to the evolution and telecommunications
requirements. To that end, the Development Team shall include as
part of the Service Plans, without limitation, a comprehensive and
strategic analysis of network and telecommunications trends and
directions, recommendations regarding price, performance and
technology trends, long range/short range recommendations for
improving cost effectiveness and service levels and an assessment of
the appropriate direction for the applications and network platform
architecture in light of best business practices, strategies,
forecasted demands and competitive market decision. Both Parties
agree that nothing herein shall be construed as requiring any Party
to incur any costs or expenses in connection with the Services Plans
unless otherwise agreed to in writing by the Parties or to disclose
information which is considered, by a Party, as confidential
6.2 RIGHT OF FIRST PROPOSAL: In addition to the rights and obligations of the
Parties pursuant to Section 6.1, the Parties shall:
(a) Where Clearwire has requirements for the delivery of any Future
Services, Clearwire shall grant to BCE Nexxia a Right of First
Proposal ("ROFP") with respect to the supply of all required
services and products in support of the Future Services pursuant to
this Section 6.2.
(b) Where Clearwire has a requirement for the delivery of Future
Services, Clearwire shall provide written notice (the "ROFP NOTICE")
to BCE Nexxia as it relates to such requirements. The ROFP Notice
shall contain Clearwire's requirements with sufficient detail to
enable the formulation of an informed decision by BCE Nexxia. Within
ten (10) Business Days after receipt of the
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ROFP Notice, BCE Nexxia shall notify Clearwire, in writing, of its
interest in supporting the applicable Future Services identified in
the ROFP Notice.
(c) If BCE Nexxia either does not notify Clearwire of its interest
within ten (10) Business Days or advises Clearwire that it is not
interested in pursuing the support of the Future Services, Clearwire
may make alternative arrangements regarding such Future Services
with a third party; provided that, if there is any material change
in Clearwire's requirements or a material change in the terms
Clearwire is prepared to consider or accept with any such third
party, Clearwire shall deliver a new ROFP Notice (before concluding
arrangements with any third party) and the process described in this
Section shall be repeated accordingly.
(d) If BCE Nexxia advises Clearwire that it is interested in providing
to Clearwire the Future Services, then the Parties shall enter into
negotiations, in good faith, with respect to the appropriate terms
and conditions of the arrangement, including without limitation,
price, service standard, ordering and delivery, terms of sale,
reporting, billing format, marketing and promotional materials,
advertising, service specifications product development, service
design and performance, schedule for service delivery, training and
support. Upon agreement between the Parties as it relates to the
Future Services to be provided by BCE Nexxia to Clearwire, such
Future Services shall be considered thereafter as being part of the
services for the purpose of this Agreement.
(e) If BCE Nexxia fails to meet within thirty (30) days (or such longer
period of time reasonably required due to the complexity of the
Future Services sought by Clearwire) any material conditions of the
ROFP (or if the Parties fail to reach agreement on applicable terms
within thirty (30) days after commencement of negotiations, despite
their good faith efforts to do so) and provided that BCE Nexxia has
been given due notice and the reasons for its failure to meet such
ROFP conditions along with a reasonable opportunity to cure such
failure (which shall not exceed ten (10) days), Clearwire shall have
the right, at any time, to terminate any negotiation, acting
reasonably and in good faith, and to pursue alternative arrangements
for the Future Services covered by the ROFP Notice with a third
party; provided that Clearwire notifies BCE Nexxia of such intention
and does not enter into such third party arrangement for a period of
ten (10) Business Days following such notice; and further provided
that, if there is any material change in Clearwire's requirements or
a material change in the terms Clearwire is prepared to consider or
accept with any such third party, Clearwire shall deliver a new ROFP
Notice to BCE Nexxia (before concluding arrangements with any third
party) and the process described in this Section shall be repeated
accordingly.
SECTION 7
CHANGE MANAGEMENT PROCESS
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7.1 CHANGE MANAGEMENT PROCESS: The procedure set forth in this Section 7 (the
"CHANGE MANAGEMENT PROCESS") shall be used for any Change to the Services. All
Change Communications and Change Responses issued by a Party hereunder shall
only be submitted by and accepted through the Project Management Office
representatives of each Party or their authorized designees.
7.2 EXCEPTIONS: All Changes shall be made in compliance with the Change
Management Process with the exception of:
(a) any temporary Changes or Changes reasonably made by BCE Nexxia in
connection with an event described in Section 18, which shall promptly be
documented by BCE Nexxia and reported to Clearwire; and
(b) any Change that BCE Nexxia, acting reasonably, deems necessary to
maintain the continuity or competitiveness of ▇▇▇▇ Canada's consumer VoIP
service that is appropriately documented and reported to Clearwire and
which is otherwise not possible to remedy within sixty (60) calendar days;
and
(c) ordinary course and routine operational changes.
7.3 BCE NEXXIA INITIATED CHANGES TO SERVICES: If BCE Nexxia wishes to make
Changes to the Services, the Parties shall act as follows:
(a) Sixty (60) Business Days prior to making any Changes to the Services,
BCE Nexxia shall provide Clearwire with a change Communication setting out
in reasonable detail, the scope and expected impact of the proposed
Change(s) on the financial, technical, scheduling and other aspects of the
Services.
(b) With respect to a change to a Non-Dedicated System, Clearwire shall
have the right, acting reasonably, to approve or reject any such proposed
Change, but may reject only if such proposed Change would result in
material adverse effect on the delivery of VoIP Services to Clearwire's
End Users, as determined by Clearwire. If Clearwire rejects the proposed
Change to a Non-Dedicated System, BCE Nexxia shall have the right to
terminate this Agreement as provided in Section 4.1 hereof.
(c) With respect to a Change to a Dedicated System, Clearwire shall have
the right, acting reasonably, to approve or reject any such proposed
Change, provided that if Clearwire rejects the proposed Change BCE Nexxia
shall be released of its obligations under Section 2.3 hereof to the
extent that the nature and quality of Services is negatively impacted by
the failure to effectuate the Change. Notwithstanding the foregoing, if
Clearwire rejects the proposed Change and such rejection has an Adverse
Material Impact on BCE Nexxia, BCE Nexxia shall have the right, acting
reasonably, to terminate this Agreement as provided under Section 4.1
hereof.
7.4 CLEARWIRE INITIATED CHANGES: If Clearwire wishes to make Changes to the
Services, the Parties shall act as follows:
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(a) Clearwire may seek Changes at any time and from time to time during
the Term of the Agreement by providing a Change Communication as provided
in Section 7.1 above.
(b) Each such Change Communication shall set out the scope, intent,
description, objective, any expected impact on existing obligations of the
Parties, expected implementation date and any other relevant matters
relating to the proposed Change.
(c) With respect to a proposed Change by Clearwire to a Non-Dedicated
System, BCE Nexxia, acting reasonably, may reject such proposed Change.
(d) With respect to a proposed Change by Clearwire to a Dedicated System,
BCE Nexxia shall accept such proposed Change unless the proposed Change
has an Adverse Material Impact on BCE Nexxia.
(e) If BCE Nexxia accepts a proposed Change from Clearwire to either a
Non-Dedicated System or a Dedicated System, BCE Nexxia shall respond to a
Change Communication, unless otherwise agreed by the Parties, by
delivering a Change Response to Clearwire ("CHANGE RESPONSE") within ten
(10) days, or such longer period as deemed reasonable in the circumstances
due to the complexity of the proposed Change. Each Change Response shall
be reasonably sufficient to permit informed evaluation of the proposed
Change, including any proposed adjustment to the Services and Charges
and/or other amounts payable by Clearwire in connection with such Changes,
and any other relevant matters raised in the Change Communication.
(f) Accepted Changes shall be implemented in accordance with the
applicable provisions of the Change Communication or Change Response, as
the case may be.
7.5 THIRD PARTY PROVIDER INITIATED CHANGES: If a Third Party Provider, under a
Dedicated Third Party Provider Agreement wishes to make any Changes, the Parties
shall act as follows:
(a) BCE Nexxia shall notify Clearwire, through a Change Communication,
promptly following receipt by it of a Third Party Provider proposed
Change, which written notice shall set out in reasonable detail the scope
and expected impact of the proposed Change(s) on financial, technical,
scheduling and other aspects of the Services.
(b) BCE Nexxia shall have the right, acting reasonably and in accordance
with the terms of the Dedicated Third Party Provider Agreement, to approve
or reject the proposed Change. If BCE Nexxia accepts the proposed Change,
Clearwire must accept the proposed Change.
(c) If a Third Party Provider's proposed Change is not in accordance with
the terms of the Dedicated Third Party Provider Agreement, Clearwire may
reject the proposed Change, but only if such proposed Change would result
in material adverse effect on delivery of VoIP Services to Clearwire's End
Users, as determined by Clearwire. If the
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rejected Change related to a Non-Dedicated System, BCE Nexxia shall have
the right to reject such proposed Change or terminate this Agreement
pursuant to Section 4.5 hereof, but only where the proposed Change would
have an Adverse Material Impact on BCE Nexxia.
7.6 CHANGES IN APPLICABLE LAW: If a change in Applicable Laws requires a Change
to the Services, both Parties shall have the right to request the Change, and
Clearwire shall have the right, acting reasonably, to approve or reject the
Change. If approved, BCE Nexxia shall implement the Change unless it would have
an Adverse Material Impact on BCE Nexxia, in which case BCE Nexxia may terminate
this Agreement pursuant to Section 4.5. If rejected, the Parties will take the
following steps in declining order of priority: (a) oppose or seek a Waiver from
the change in Applicable Law; (b) negotiate in good faith any necessary
Change(s) to the Service with the intent of making the smallest and least costly
Change or (c) terminate the Agreement pursuant to Section 4.5.
7.7 GENERAL: A Party making a Change Communication shall be responsible for its
own costs and the reasonable and actual costs incurred by the other Party
directly related to the evaluation and preparation of a Change Communication or
with respect to any response thereto, including the costs incurred in conducting
any investigations required in connection therewith.
SECTION 8
WARRANTY
8.1: EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, (a) BCE NEXXIA MAKES NO
REPRESENTATIONS OR WARRANTIES EXPRESS OR IMPLIED, UNDER THIS AGREEMENT AND
SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT, AND (b) BCE NEXXIA DOES
NOT REPRESENT OR WARRANT THAT THE SERVICES (i) WILL BE UNINTERRUPTED OR
ERROR-FREE, (ii) WILL MEET CLEARWIRE'S REQUIREMENTS OR (iii) WILL PREVENT
UNAUTHORIZED ACCESS BY THIRD PARTIES. BCE NEXXIA DOES NOT AUTHORIZE ANYONE,
EXCEPT FOR AUTHORIZED REPRESENTATIVES OF BCE NEXXIA IN A SIGNED WRITTEN
AGREEMENT, TO MAKE A REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND ON ITS
BEHALF AND CLEARWIRE SHOULD NOT RELY ON ANYONE MAKING SUCH STATEMENTS.
SECTION 9
GENERAL AND INTELLECTUAL PROPERTY INDEMNITY
9.1 GENERAL INDEMNITY: Each Party (in this Section 9.1, the "INDEMNITOR") shall
defend, indemnify and hold the other Party, its Affiliates and their respective
directors, officers and employees (in this Section 9.1, the "INDEMNITEE")
harmless with respect to any claim, demand, action, cause of action, damage,
loss, cost, liability or expense directly resulting from (a) any breach by the
Indemnifying Party of its obligations hereunder including any breach of the
warranties and representations made by that Party herein, and (b) for any
amounts not withheld
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by Clearwire that were required to be withheld under Applicable Law from
payments by Clearwire under Section 3.2, and any fines, penalties or interest
imposed under Applicable Law and relating thereto, in which case, BCE Nexxia
shall be the Indemnitor and Clearwire shall be the Indemnitee for purposes of
this clause (b).
9.2 INTELLECTUAL PROPERTY INDEMNITY: Without limiting the generality of the
foregoing, each Party (as Indemnitor) will defend or settle, at its own expense,
the following third Party claims brought against the other Party (as
Indemnitee), and indemnify and hold the Indemnitee harmless for:
(a) BCE NEXXIA AS INDEMNITOR: claims against Clearwire alleging that a
Service infringes any Intellectual Property Right in Canada, except
to the extent the claim arises out of, or results from: (i)
Clearwire Products or hardware or Software provided by Clearwire to
BCE Nexxia pursuant to this Agreement; (ii) Clearwire's or any End
User's content in connection with the Services; (iii) modifications
to the Services made by, or combinations of the Services with
services or products provided by or at the direction of Clearwire;
(iv) BCE Nexxia's adherence to Clearwire's written instructions to
modify the Services; or (v) use of the Services by Clearwire in
violation of this Agreement.
(b) CLEARWIRE AS INDEMNITOR: claims against BCE Nexxia (i) for libel,
slander, defamation, or violation of a right of privacy or publicity
arising from the use of the VoIP Services by Clearwire or an End
User; or (ii) arising from Clearwire's marketing activities,
including Clearwire's violation of laws and regulations applicable
to the authorization and proof of authorization necessary to convert
an End User to Clearwire's service.
9.3 OBLIGATION TO COOPERATE: In each case under this Section 9 in which an
Indemnitee seeks indemnification, the Indemnitee must (a) promptly notify the
Indemnitor in writing of the claim, provided that failure to do so will not
affect the Indemnitor's obligations except to the extent the Indemnitor is
prejudiced by the failure; (b) give the Indemnitor all requested information
which the Indemnitee has concerning the claim; (c) reasonably cooperate with and
assist the Indemnitor in defending or settling the claim, at the Indemnitor's
expense; and (d) not make any admissions relating to the claim.The Indemnitee
may participate in the defense of the claim at its expense through counsel of
its choosing, and the Indemnitor will in any event consult with the Indemnitee
about the defense of the claim and any proposed settlement at the Indemnitee's
request. If not settled the Indemnitor will pay all damages and costs (including
reasonable attorneys' fees) that by final judgment may be assessed against
Indemnitee.
9.4 IN THE EVENT OF A CLAIM OF INFRINGEMENT: The Indemnitor may at its option
either procure the right to continue using, or replace or modify, the alleged
infringing item so that the item becomes non infringing and substantially
compliant with applicable requirements.
SECTION 10
LIMITATION OF LIABILITY
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10.1 LIMITATION OF LIABILITY: IF NOT OTHERWISE EXPLICITLY LIMITED OR EXCLUDED
ELSEWHERE IN THIS AGREEMENT, AND EXCEPT FOR BREACHES OF SECTION 12, A PARTY'S
OBLIGATION TO INDEMNIFY FOR CLAIMS OF THIRD PARTIES, AND ACTIONS RESULTING IN
PERSONAL INJURY OR DEATH, EACH PARTY'S LIABILITY TO THE OTHER UNDER THIS
AGREEMENT FOR DAMAGES, REGARDLESS OF THE FORM OF ACTION AND WHETHER THE
LIABILITY ARISES IN CONTRACT, (INCLUDING FUNDAMENTAL BREACH) TORT (INCLUDING
NEGLIGENCE), STRICT LIABILITY, BREACH OF REPRESENTATION, WARRANTY, CONDITION OR
OTHERWISE, SHALL BE LIMITED TO DIRECT DAMAGES, AND SHALL NOT EXCEED IN THE
AGGREGATE DURING ANY TWELVE (12) MONTH PERIOD A SUM EQUAL TO TWELVE TIMES THE
MONTHLY GROSS REVENUES OF CLEARWIRE FROM VOIP SERVICES PROVIDED TO END USERS
THAT ARE SUPPORTED BY BCE NEXXIA THROUGH THE MANAGEMENT AND SUPPLY OF THE
SERVICES AS PROVIDED HEREIN FOR THE MONTH IN WHICH THE DAMAGE CLAIM ARISES BUT
NOT MORE THAN [***]
10.2 EXCLUSION OF LIABILITY: EXCEPT FOR BREACHES OF SECTION 12, A PARTY'S
OBLIGATION TO INDEMNIFY FOR CLAIMS OF THIRD PARTIES AND ACTIONS RESULTING IN
PERSONAL INJURY OR DEATH, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY
INCIDENTAL, CONSEQUENTIAL, RELIANCE, SPECIAL OR OTHER INDIRECT DAMAGES,
INCLUDING LOST PROFITS, BUSINESS, GOODWILL OR ANTICIPATED REVENUE, LOSS OF DATA
DOWNTIME OR BUSINESS INTERRUPTION, OR INCREASED COST OF OPERATIONS, OR FOR
EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE
SERVICES, REGARDLESS OF THE FORM OF ACTION AND WHETHER THE LIABILITY ARISES IN
CONTRACT (INCLUDING FUNDAMENTAL BREACH), TORT, (INCLUDING NEGLIGENCE) STRICT
LIABILITY, BREACH OF REPRESENTATION, WARRANTY, CONDITION OR OTHERWISE AND
WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.3 FURTHER LIMITATION OF LIABILITY: EXCEPT AS THIS AGREEMENT MAY OTHERWISE
EXPRESSLY PROVIDE, AND PROVIDED BCE NEXXIA COMPLIES WITH THE TERMS OF THIS
AGREEMENT, BCE NEXXIA SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING OUT OF, OR
RESULTING FROM: (a) SERVICE IMPAIRMENTS OR INTERRUPTIONS OR LOST, ALTERED OR
MISDIRECTED TRANSMISSIONS OR MESSAGES; (b) INTEROPERABILITY, INTERCONNECTION OR
PERFORMANCE PROBLEMS, INCLUDING PROBLEMS CAUSED BY OR WITH APPLICATIONS,
EQUIPMENT, SERVICES OR NETWORKS PROVIDED BY EITHER PARTY OR A THIRD PARTY; (c)
INABILITY OF CLEARWIRE OR ITS END USERS TO ACCESS OR INTERACT WITH OTHER SERVICE
PROVIDERS, NETWORKS, USERS, CONTENT OR SERVICES; (d) CONTENT OR SERVICES OF, OR
INTERACTIONS WITH, A THIRD PARTY, EVEN IF HOSTED, CACHED, SUPPORTED OR OTHERWISE
ENABLED BY BCE NEXXIA; (e) SERVICES, EQUIPMENT OR SOFTWARE PROVIDED BY THIRD
PARTIES; (f) UNAUTHORIZED ACCESS BY A THIRD PARTY TO THE TRANSMISSION FACILITIES
OR PREMISES EQUIPMENT OF CLEARWIRE, ITS END USERS, OR ANY
[*** Confidential Treatment Requested]
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OTHER THIRD PARTY; OR (g) UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT, LOSS OR
DESTRUCTION OF CLEARWIRE'S OR ITS OR END USERS' OR ANY THIRD PARTY'S NETWORKS,
SYSTEMS, CONTENT, APPLICATIONS, DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION
BY ANY MEANS INCLUDING ACCIDENT OR FRAUDULENT MEANS OR DEVICES.
10.4 ALLOCATION OF RISK; Each Party acknowledges that the disclaimers of
representations, warranties and conditions, limitations of liability, and
limitations of remedies in the, Agreement fairly allocate risks between them.
SECTION 11
INTELLECTUAL PROPERTY
11.1 OWNERSHIP: Except for the licenses expressly granted under this Agreement,
(i) BCE Nexxia shall, with respect to Clearwire, possess and retain all
Intellectual Property Rights in the BCE Nexxia Deployed IP; BCE Nexxia IS/IT and
Telecom Systems and (ii) Clearwire shall, with respect to BCE Nexxia, possess
and retain all Intellectual Property Rights in the Clearwire Enabling IP. BCE
Nexxia shall have exclusive ownership of BCE Nexxia Inventions, and Clearwire
shall have exclusive ownership of Clearwire Inventions. The parties' rights in
Joint Inventions are set forth and defined in Sections 11.6 below.
11.2 GRANT OF LICENSE: BCE Nexxia hereby grants to Clearwire, for the Term, a
worldwide, non-exclusive, non-assignable, non-transferable and fully paid
license (without the right to sublicense), but only to the extent that BCE
Nexxia has the right to grant such licenses, to use, reproduce and create
Derivatives of BCE Nexxia IS/IT Systems and Telecom Systems (excluding
Non-Dedicated Systems), components of BCE Nexxia IS/IT Systems and Telecom
Systems (excluding any Non-Dedicated Systems), and to BCE Nexxia Deployed IP
(but excluding in all three (3) cases any Non-Dedicated Systems) but solely for
the purpose of providing VoIP Services to End Users in the Territory (only to
the extent that such End Users of VoIP Services are supported by BCE Nexxia
through the arrangement and supply of the Services that are provided herein) in
accordance with this Agreement, and to provide support services to such End
Users. Clearwire hereby grants to BCE Nexxia, for the Term, a worldwide,
non-exclusive, non-assignable, non-transferable and fully paid license (without
the right to sublicense) to use, reproduce and create Derivatives of Clearwire
Products and/or Clearwire Enabling IP, but solely for the purpose of providing
the Services to Clearwire and only to the extent Clearwire has the right to
grant such a license. With respect to Software, unless specifically otherwise
agreed in writing by the licensing party, and subject to any terms and
conditions which may be reasonably required by the licensing party, the license
rights granted under this Section shall not include any rights or license to
access or use the Source Code of such Software. Moreover, the license rights
granted under this Section shall not include any right to reverse engineer,
decompile and/or disassemble for Clearwire, any of the BCE Nexxia Deployed IP,
and for BCE Nexxia, any of the Clearwire Enabling IP. The Parties understand
that the licenses granted hereunder are for the use of, or the right to use the
specified items set forth above, including know-how, or for the use of, or the
right to use information concerning industrial, commercial or scientific
experience.
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11.3 NOTIFICATION OF AND ASSIGNMENT OF DERIVATIVES: Clearwire shall promptly
notify BCE Nexxia of the creation of any Derivatives of the BCE Nexxia Deployed
IP that are created by or on behalf of Clearwire. Clearwire hereby assigns and
transfers all such Derivatives and all related Intellectual Property Rights in
such Derivatives to BCE Nexxia, and shall promptly execute any document and
perform such further acts to confirm the ownership of such works by BCE Nexxia
as BCE Nexxia may request. BCE Nexxia shall promptly notify Clearwire of the
creation of any Derivatives of the Clearwire Enabling IP that are created by or
on behalf of BCE Nexxia. BCE Nexxia hereby assigns and transfers all such
Derivatives and all related Intellectual Property Rights in such Derivatives to
Clearwire, and shall promptly execute any document and perform such further acts
to confirm the ownership of such works by Clearwire as Clearwire may request.
11.4 THIRD PARTY LICENSES: BCE Nexxia shall make commercially reasonable efforts
to arrange for the Intellectual Property which is licensed from third parties in
connection with the Services to be either sub-licensed by BCE Nexxia to
Clearwire or licensed directly by Clearwire from the third party licensors, and
Clearwire shall be responsible for obtaining any such licenses which may be
required from such third party licensors and shall be responsible for payments
which may be required to be made to any third parties as a result of Clearwire's
use of such Intellectual Property.
11.5 FILING OF PATENT APPLICATIONS: BCE Nexxia, with respect to BCE Nexxia
Inventions, and Clearwire, with respect to Clearwire Inventions, shall have the
exclusive right to file any Patent applications arising from such inventions any
where in the world at its own sole expense, and shall thereafter own all such
applications and any continuations, continuations-in-part, divisions,
extensions, reissues and reexaminations of any such applications, as well as any
Patents resulting from such applications. BCE Nexxia and Clearwire, with respect
to Joint Inventions made pursuant to this Agreement, shall each have the right
to file any Patent applications arising from such Inventions anywhere in the
world at its own sole expense and BCE Nexxia and Clearwire shall there after
co-own all such applications and any continuations, continuations-in-part,
divisions, extensions, reissues and reexaminations of any such applications, as
well as any Patents resulting from such applications. Each party and its
Affiliates shall have the unrestricted right to use (but not license) Joint
Inventions without the consent of, or accounting to, the other party, provided
that (a) Clearwire's copyrights and trade secrets in all such Joint Inventions
(which have been disclosed to BCE Nexxia in the course of performing this
Agreement) shall be licensed to BCE Nexxia under Section 11.8 below for use in
the BCE Nexxia Field of Use, and Clearwire shall take no action that would in
any way jeopardize such license or lead to the public disclosure of any jointly
owned trade secret, and (b) BCE Nexxia's copyrights and trade secrets in all
such Joint Inventions (which have been disclosed to Clearwire in the course of
performing this Agreement) shall be licensed to Clearwire under Section 11.8
below for use in the Clearwire Field of Use and BCE Nexxia shall take no action
that would in any way jeopardize such license or lead to the public disclosure
of any jointly owned trade secret. Any licensing of Joint Inventions to a third
party and any division of resulting royalties must be mutually approved by
Clearwire and BCE Nexxia.
11.6 RECIPROCAL LICENSE TO JOINT INVENTIONS: Clearwire grants to BCE Nexxia a
world-wide, irrevocable, transferable, fully-paid perpetual license (with the
right to sublicense) under
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Clearwire's copyrights and trade secrets (which have been disclosed to BCE
Nexxia in the performance of this Agreement), to reproduce, have reproduced,
prepare and have prepared Derivatives of, translate, display, distribute and
perform Joint Inventions, but only within the BCE Nexxia Field of Use. BCE
Nexxia grants to Clearwire a world-wide, irrevocable, transferable, fully-paid
perpetual license (with the right to sublicense) under BCE Nexxia's copyrights
and trade secrets (which have been disclosed to Clearwire in the performance of
this Agreement), to reproduce, have reproduced, prepare and have prepared
Derivatives of, translate, display and distribute Joint Inventions, but only
within the Clearwire Field of Use.
11.7 LICENSING FREEDOM: For greater certainty, each Party shall have the right
to license independently to any third party any Intellectual Property Rights
arising from any of its own Inventions. All royalties resulting from such
licensing may be retained solely by the licensor, and there shall be no
requirement for accounting to the other party to this Agreement. Each party
shall only have the right to license to a third party (except to an Affiliate)
any Intellectual Property Rights arising from any Joint Inventions with the
expressed written permission of the other party, which shall not be unreasonably
withheld. All division of royalties resulting from such licensing shall be
negotiated between the Parties prior to the effectiveness of any such license.
Notwithstanding the above, each Party shall have the right to license
independently to any Affiliate any Intellectual Property Rights arising from any
Joint Inventions provided that no further sub-license rights are granted to the
said Affiliates. All royalties resulting from such licensing may be retained
solely by the licensor, and there shall be no requirement for accounting to the
other party to this Agreement.
11.8 NO IMPLIED LICENSES: Except as provided for in the fully paid licenses
described herein, no license or other right is granted by either Party or any of
its Affiliates to the other by implication, estoppels or otherwise, under any
Patents, trade secrets, copyrights, or other Intellectual Property now or
hereafter owned or controlled by such Party or any of its Affiliates except for
the licenses and rights granted in this Agreement. Nothing contained in this
Agreement shall be construed as:
(a) a warranty or representation by either Party as to the validity,
enforceability, and/or scope of any Intellectual Property or
Intellectual Property Right;
(b) imposing upon either Party any obligation to institute any suit or
action for infringement of any Intellectual Property or Intellectual
Property Right, or to defend any suit or action brought by a third
party which challenges or concerns the validity, enforceability, or
scope of any Intellectual Property Right;
(c) imposing on either Party any obligation to file any Patent
application or other Intellectual Property Right application or
registration or to secure or maintain in force any Patent or other
Intellectual Property;
(d) a license to any of BCE Nexxia's or its Affiliates' Intellectual
Property, Clearwire's or its Affiliates' Intellectual Property, BCE
Nexxia Inventions or Clearwire Inventions.
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SECTION 12
CONFIDENTIAL INFORMATION
12.1 RESTRICTED USE: Each Recipient shall use the Informant's Confidential
Information solely for the purposes of fulfilling its obligations or exercising
its rights under this Agreement. Each Recipient shall not disclose the
Informant's Confidential Information except as expressly provided by this
Agreement. Confidential Information shall be marked confidential, restricted or
propriety by the Informant, provided, however, that the failure of either Party
to so ▇▇▇▇ any material shall not relieve the Recipient of the obligation to
maintain the confidentiality of any unmarked material which the Recipient knows
or should have reasonably known contains Confidential Information.
12.2 RETURN OF CONFIDENTIAL INFORMATION: Immediately upon receipt an Informant's
request, the Recipient shall return to the Informant, or certify as destroyed,
any and all tangible materials concerning Confidential Information, together
with all copies, whether such materials were made or compiled by the Recipient
or furnished by the Informant. Notwithstanding the foregoing, the Recipient
shall not be obligated to comply with the preceding obligations in this Section
12.2. in the event that the Confidential Information is incorporated into board
of directors or committee minutes of the Recipient or the Recipient's parent
corporation or if the retention by the Recipient of such Confidential
Information is required under applicable law, including but not limited to the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; provided, however, that in any such case the Recipient shall
provide the Informant with written notice describing in detail the nature of the
Confidential Information that is not being destroyed or returned to the
Informant, and identifying the reason that such Confidential Information
qualifies for the exception from the destruction or return requirement.
12.3 SCOPE OF OBLIGATIONS: Each Recipient will take the precautions used by the
Recipient to maintain the secrecy of its own confidential information, which in
no event shall be less than all reasonable precautions, to maintain the secrecy
of all Confidential Information disclosed to it by the Informant.
12.4 RESTRICTED DISCLOSURE: Unless it has received the prior written consent of
the Informant, except as provided in this Section 12 or in the Side Agreement,
the Recipient will disclose Confidential Information of the Informant only to
those directors, officers, employees, agents, subcontractors and professional
advisors of the Recipient with a necessary and direct need to know the
Confidential Information for the purposes of this Agreement, and covenants and
warrants that all Persons to whom Confidential Information is disclosed in
accordance with this will maintain the secrecy of such Confidential Information.
12.5 EXCEPTIONS: The obligations set out in this Section 12 shall not apply to
any Confidential Information that:
(a) at the time of disclosure to the Recipient is in the public domain;
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(b) shall become generally known through no wrongful act of the
Recipient (but only after it is published or becomes part of the
public domain);
(c) was disclosed in good faith to the Recipient by a third party having
legitimate possession and the right to make such disclosure and who
did not require the Recipient to hold it in confidence;
(d) was in legitimate possession of the Recipient prior to its
disclosure by the Informant as evidenced by its business records and
was not acquired by the Recipient under an obligation of confidence;
(e) is independently developed by the Recipient without use of the
Confidential Information as evidenced by its business records; or
(f) the Recipient is required by a judicial, administrative,
governmental body or stock exchange (in the reasonable opinion of
Recipient's counsel) to disclose, provided that prior to disclosing
any Confidential Information, the Recipient promptly notifies the
Informant and cooperates with the Informant to seek appropriate
protective orders with respect to such portion of the Confidential
Information as is the subject of any such required disclosure.
12.6 INFORMANT NOT OBLIGATED TO DISCLOSE: Subject to the terms of this
Agreement, each Party acknowledges that notwithstanding the execution of this
Agreement, the Informant maintains the sole and absolute discretion to determine
what, if any, of the Confidential Information it will release to a Recipient.
12.7 NO RIGHTS OR INTEREST TO CONFIDENTIAL INFORMATION: Ownership of and all
right, title and interest to any and all Confidential Information, copies and
other material shall at all times vest exclusively in the Informant. The
disclosure of Confidential Information shall not be construed as granting to the
Recipient any rights, by license or otherwise under any copyrights, copyright
applications, trade secrets, trade-marks or other Intellectual Property Rights
in any country relating to any of the Confidential Information which the
Informant or an associated corporation may now or hereafter own or to which it
may hold licensing rights.
12.8 RIGHT TO INJUNCTIVE RELIEF: In the event of a breach or threatened breach
of this Section 12, the Parties agree that the harm suffered by the injured
Party would not be compensable by monetary damages alone and, accordingly, that
the injured Party shall, in addition to other available legal or equitable
remedies, be entitled to apply for an injunction or other such equitable remedy
as against such breach or threatened breach without the other Party's consent.
SECTION 13
REGULATORY MATTERS
13.1: Nothing in this Agreement shall require either Party to take any action
prohibited, or omit to take any action required by a Regulatory Authority having
jurisdiction with respect thereto, including, without limitation, as a result of
a change in the Applicable Laws.
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SECTION 14
PUBLICITY
14.1 Except as otherwise provided under the Side Agreement, each Party shall
consult with the other before issuing any press release or making any other
public announcement with respect to this Agreement or the transactions
contemplated hereby (other than any promotional or marketing material of such
Party which merely identifies, to the extent applicable, the other Party as a
customer or supplier, as applicable, of such Party), and none of the Parties
shall issue any such press release or make any such public announcement without
the prior written consent of the other provided, however, that any Party may,
without such consent, make such disclosure if the same is required by Applicable
Law, any stock exchange on which any of the securities of such Party or any of
its Affiliates are listed or posted for trading, or any securities commission or
other similar Regulatory Authorities having jurisdiction over such Party or any
of its Affiliates, and if such disclosure is required, the Party making the
disclosure shall use all commercially reasonable efforts to give prior oral or
written notice to the other, and if such prior notice is not possible, to give
such notice immediately following the making of such disclosure.
SECTION 15
AMENDMENT
15.1 No modification of or amendment to this Agreement shall be valid or binding
unless set forth in writing and duly executed by each of the Parties.
SECTION 16
COSTS
16.1 Each of the Parties shall be responsible for all of its own costs and
expenses incurred in the course of conducting due diligence and negotiating and
preparing the documentation contemplated by this Agreement and in attending
meetings of the Executive Operating Committee, the Project Management Office or
such other meetings as are contemplated in this Agreement.
SECTION 17
DISPUTES
17.1 If a dispute, claim, question or difference between the Parties (a
"DISPUTE") arises with respect to this Agreement or the Parties' performance,
enforcement or breach, the Parties shall use their best reasonable efforts to
settle the Dispute and the representative of each Party on the Project
Management Office, or other designated managers of each Party, shall consult and
negotiate with each other for at least ten (10) Business Days, or such other
longer period of time the Parties may agree, in good faith and understanding of
their mutual interests, in an attempt to reach a just and equitable solution
satisfactory to all Parties, prior to escalating any such Dispute to the
Executive Operating Committee.
17.2 If the Dispute remains unresolved by the Executive Operating Committee
after a period of fifteen (15) Business Days, or such longer period of time the
Parties may agree, the Dispute shall
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be escalated to a senior executive (a direct report to the CEO) of each Party
and such senior executive shall have thirty (30) days, or such longer period as
the Parties may agree, to resolve the Dispute.
17.3 If a settlement cannot be reached at senior executive level pursuant to
Section 17.2, a Party may provide written notice to the other Party (a "NOTICE
TO ARBITRATE") and may refer the Dispute to binding arbitration to be held in
accordance with the provisions of rules of the American Arbitration Association.
The Dispute will be finally settled by the arbitration from which there shall be
no appeal. The arbitration shall be heard by a single arbitrator to be agreed by
the Parties and, failing such agreement, each Party will appoint one arbitrator
and the two arbitrators will mutually select a third one. The Notice to
Arbitrate shall set out a concise description of the Dispute to be submitted to
arbitration and shall be delivered to the other Party. The arbitration shall
take place in New York, New York. The language to be used in the arbitration
shall be English. Nothing in this section precludes a Party from seeking interim
relief by way of an injunction (mandatory or otherwise) or other interim
equitable relief in the courts located in New York, New York in connection with
this Agreement. Judgment of the award rendered by the arbitrator may be entered
in any court having jurisdiction thereof.
17.4 Notwithstanding Section 17.1 and 17.2 hereof, where a Dispute involves a
matter that requires resolution or relief urgently and where there are
reasonable grounds to believe a delay in obtaining such resolution or relief
would cause a Party significant harm that would not practically be compensable
by damages alone (an "URGENT DISPUTE"), that Party may submit the Urgent Dispute
for arbitration in accordance with Section 17.3 hereof at any time and without
having first attempted to resolve the Urgent Dispute in accordance with the
escalation process set forth herein.
17.5 Notwithstanding the foregoing, nothing in this Section 17 shall restrict
either Party from:
(a) seeking injunctive relief, including, but not limited to a temporary
restraining order against the other Party for alleged breaches of
this Agreement; and
(b) taking formal action relating to proprietary rights, including
Intellectual Property Rights and confidentiality.
SECTION 18
FORCE MAJEURE
18.1: If a Party's performance of this Agreement or any obligation (other than
the obligation to make payments for Services rendered) hereunder is prevented,
restricted or interfered with by causes beyond its reasonable control, (and
where such cause could not have been avoided by taking reasonable precautions,
including precautions taken by BCE Nexxia with respect to its own network and
services it provides to its customers), including, but not limited to, acts of
God, fire, explosion, vandalism, power grid outages (beyond any required battery
back-up or generator capacity), storm or other similar occurrence including rain
fade or other atmospheric conditions, any law, order, regulation, direction,
action or requirement of any governmental authority or national, provincial,
state or local governments, or of any department, agency, commission,
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court, bureau, corporation or other instrumentality of any one or more of said
governments, or of any civil or military authority, or by national emergencies,
insurrections, riots, wars, acts of terrorism, strikes, lockouts or work
stoppages or other labor difficulties, supplier failures, shortages, breaches or
delays, then the Party affected by such force majeure event (the "AFFECTED
PARTY") shall be excused from such performance on a day-to-day basis to the
extent of such prevention, restriction or interference. The Affected Party shall
make commercially reasonable efforts under the circumstances to avoid and remove
such causes of non-performance and shall proceed to perform with reasonable
dispatch whenever such causes cease. If an event giving rise to force majeure
should continue for a period of three (3) months, the Party which is not subject
to that force majeure event shall have the right to terminate this Agreement.
SECTION 19
GENERAL PROVISIONS
19.1 ASSIGNMENT: This Agreement may not be assigned in whole or in part without
the prior written consent of the other Party. Notwithstanding the foregoing, but
subject to the provisions of Section 4.1, each Party shall have the right to
assign, in whole or in part, its rights, interests and obligations under this
Agreement, without the prior consent of the other Party, to an Affiliate,
provided such Affiliate agrees in writing to be bound by all of the obligations
of the assigning Party under this Agreement. In addition, subject to the
provisions of Section 4.1, each Party shall have the right to assign in whole or
in part its rights, interests and obligations under this Agreement to a company
with whom it merges or consolidates or who acquires all or substantially all of
the stock or assets of the assigning Party (each such company, a "PERMITTED
ASSIGN"), provided that the Permitted Assign agrees in writing to be bound by
all of the obligations of the assigning Party under this Agreement. In all
circumstances, the assigning Party shall not be released from its liabilities
under this Agreement except to the extent the non-assigning Party otherwise
agrees. Any attempted assignment, sub-license, transfer, encumbrance or other
disposal of this Agreement without such required consent will be void and
ineffective, and will constitute a material default and breach of this
Agreement. This Agreement shall be binding upon and will inure to the benefit of
the Parties and their respective successors and Permitted Assigns.
19.2 ENTIRE AGREEMENT: This Agreement (including the Schedules attached hereto)
constitutes the entire agreement between Clearwire and BCE Nexxia with respect
to the subject matter, merging and superseding all prior agreements,
understandings, commitments, undertakings and representations on the subject
matter.
19.3 ENUREMENT: This Agreement shall be binding upon and enure to the benefit of
the Parties and their respective successors and permitted assigns.
19.4 GOVERNING LAW: Except to the extent governed by the U.S. Communications Act
or other U.S. federal law, this Agreement and all matters related thereto will
be governed by the internal laws of the State of New York, without giving effect
to any choice of law provisions thereof. Each Party consents to jurisdiction of
the provincial or federal courts located in the State of New York, located in
New York, New York in connection with any action brought under this
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Agreement. Neither Party shall commence any such action or claim other than in
the courts located in New York, New York.
19.5 INTERPRETATION: In this Agreement, the headings are for convenience of
reference only and shall not affect its construction or interpretation.
19.6 NON-WAIVER: No waiver of any term or provision or of any breach or default
shall be valid unless in writing and signed by the party giving such waiver, and
no such waiver shall be deemed a waiver of any other terms or provision of any
subsequent breach or default of the same or similar nature.
19.7 NOTICES AND REQUESTS: All notices and requests in connection with this
Agreement shall be deemed to have been duly and properly given as of the earlier
of: (i) the date such notice has been received, including by electronic or
facsimile means, with reliable evidence confirming receipt; (ii) the day of
guaranteed delivery if sent by overnight courier service, charges prepaid and
with designation for next-day delivery; or (iii) five (5) days after deposit of
such notice in the national postal service of the U.S. or Canada, as applicable,
postage prepaid, certified or registered, return receipt requested; addressed to
the recipient Parties at the address shown below or at such address as such
Parties may subsequently designate in writing:
BCE Nexxia
Floor 6N
483 Bay Street
Toronto, Ontario
M5G 2C9
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
and with a cc to: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Floor 37
1000, rue de la Gauchetiere, Ouest
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇.▇▇
and with a cc to: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Floor 39
1000, rue de la Gauchetiere, Ouest
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇.▇▇
CLEARWIRE:
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▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Fax: ▇▇▇.▇▇▇.▇▇▇▇
with a cc to:
Attention: Law Department
Fax: ▇▇▇.▇▇▇.▇▇▇▇
and a cc to:
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Fax: ▇▇▇.▇▇▇.▇▇▇▇
19.8 SEVERABILITY: If any provision of this Agreement is found to be invalid,
illegal or unenforceable, the other provisions of this Agreement shall not be
affected or impaired, and the offending provision shall automatically be
modified to the least extent necessary in order to be valid, legal and
enforceable.
19.9 COUNTERPARTS: This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original and all of which, taken together,
shall constitute one and the same instrument.
19.10 COMPLIANCE: The Parties shall at all times comply with all Applicable
Laws. Without limiting the generality of the foregoing, the Parties shall, where
required, obtain any authorizations, certifications or other forms of approval
from all appropriate regulatory and governmental tribunals, agencies or bodies.
19.11 FURTHER ASSURANCES: The Parties shall, with reasonable diligence do all
such things and provide all such reasonable assurances as may be required for
the carrying out of this Agreement and each Party hereto shall provide such
further documents or instruments required by the other Party as may be
reasonably necessary or desirable to effect the purpose of this Agreement.
19.12 NO THIRD PARTY BENEFICIARIES: This Agreement and each Service Order do not
provide and are not intended to provide third parties (including, but not
limited to, End Users) with any remedy, claim, liability, reimbursement, cause
of action, or any other right. As such, no provision of this Agreement shall be
enforceable by any third party.
19.13 ORDER OF PRECEDENCE: In the event of any conflict or inconsistency among
or between a Schedule and the main body of this Agreement, the main body of this
Agreement shall have precedence.
19.14 RELATIONSHIP OF THE PARTIES: This Agreement shall not form a joint
venture, partnership or similar business arrangement between the parties hereto,
and nothing contained herein shall be
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deemed to constitute a partnership, joint venture or similar business
arrangement
19.15 CURRENCY: Unless otherwise expressly contemplated herein, all references
in this Agreement or any Schedule hereto to sums of money shall be, unless the
contrary is expressly indicated, to lawful money of the U.S.
19.16 SURVIVAL: The following provisions survive termination of this Agreement:
Section 4, 8 through 12, 14, 15, 17, 18, 19.4 through 19.7, 19.13, 19.15 and
19.16, and any other provisions which survive by operation of law.
EACH PARTY ACKNOWLEDGES AND EXPRESSLY AGREES TO THE LIMITATION OF LIABILITY SET
OUT IN THIS AGREEMENT.
AGREED BY THE DULY AUTHORIZED REPRESENTATIVES OF THE PARTIES THIS 16th DAY OF
MARCH, 2005.
CLEARWIRE CORPORATION BCE NEXXIA CORPORATION
SIGNATURE: /s/ ▇▇▇ ▇▇▇▇▇ SIGNATURE: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------- --------------------------
NAME: ▇▇▇ ▇▇▇▇▇ NAME: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
TITLE: Executive Vice President TITLE: V-P, Finance and Corporate Secretary
CLEARWIRE LLC ▇▇▇▇ CANADA
SIGNATURE: /s/ ▇▇▇ ▇▇▇▇▇ SIGNATURE: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------- --------------------------
NAME: ▇▇▇ ▇▇▇▇▇ NAME: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
TITLE: Executive Vice President TITLE: SVP. Technology
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SCHEDULE 1
STATEMENT OF WORK
STATEMENT OF WORK
Subject to the terms and conditions of the Master Supply Agreement ("MSA"),
this document sets forth the responsibilities that each Party has with respect
to the overall accountability for delivering the VoIP Services. Both Parties
acknowledge that the specific boundaries between each Party's areas of
accountabilities are subject to change, from time to time, in accordance with
the terms and conditions set out in the MSA. In performing its obligations as
contemplated herein, BCE Nexxia, subject to the terms and conditions of the
MSA, shall do so in proactive consultation with Clearwire. The delivery of all
Service Elements required for the provision of VoIP Service to End User shall
be performed by Clearwire, except as otherwise expressly contemplated herein as
being required to be performed by BCE Nexxia. For greater certainty, the
functions assigned to BCE Nexxia hereunder shall be deemed the "Services" for
the purpose of this Statement of Work and the MSA. In this Statement of Work,
"CW" has the same meaning as "Clearwire" under the MSA.
Appendix I attached to this Statement of Work as well as the remainder of this
page are a description of the Services that is intended to be used as a
guideline for interpretation of the various obligations of the Parties under
this Statement of Work, but does not create any independent obligations or
supersede any unambiguous provision of this Statement Work or the MSA.
As of the Effective Date, the scope of BCE Nexxia's responsibilities is
summarized (non-exhaustively) as follows:
[o [***]
o [***]
o [***]
o [***]
o [***]
o [***]
o [***]
o [***]
o [***]
o [***]
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[o [***]
o [***]
o [***]
o [***]
o [***]
o [***]
A more complete description of each Party's responsibilities as they relate to
the delivery of Services follows in this Statement of Work and supersedes the
foregoing summary.
1. BCE NEXXIA RESPONSIBILITIES (THE SERVICES)
[***]
o [***]
o [***]
o [***]
o [***]
o [***]
o [***]
o [***]
o [***]
o [***]
o [***]
o [***]
o [***]
o [***]
o [***]
o [***]
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[o [***]
o [***]
o [***]
[***]
o [***]
o [***]
o [***]
o [***]
o [***]
o [***]
o [***]
o [***]
o [***]
o [***]
o [***]
o [***]
o [***]
o [***]
o [***]
o [***]
o [***]
o [***]
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[ o [***]
o [***]
o [***]
o [***] ]
2. CLEARWIRE RESPONSIBILITIES
2.1 IT SERVICE ELEMENTS
Clearwater will work with BCE Nexxia to develop a project plan that defines
deliverables, allocates resources and confirms estimate and schedules. See below
responsibility matrix for proposed responsibility framework.
[ [***]
o [***]
o [***]
o [***]
o [***]
o [***]
3. [***] ]
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[ [***] ]
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4. JOINT CW AND BELL NEXXIA IT/SYSTEMS COMPONENTS MILESTONES AND
RESPONSIBILITY MATRIX
The milestones set out below are estimates and are subject to change.
[***]
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[***]
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[***]
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[***]
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APPENDIX 1
CONSUMER SERVICES DEVELOPMENT
VOICE OVER IP COMMERCIAL SERVICE
PRODUCT DESCRIPTION DOCUMENT
VERSION 2.1
FEBRUARY 24, 2005
BCE NEXXIA RESTRICTED
TABLE OF CONTENTS
1.0 DOCUMENT OBJECTIVES................................................... 4
2.0 INTRODUCTION.......................................................... 5
2.1 NOTATION........................................................... 5
2.2 BACKGROUND......................................................... 5
3.0 PROJECT DESCRIPTION................................................... 6
3.1 REQUIREMENTS....................................................... 6
3.2 OFFERING:.......................................................... 7
3.3 OUT OF SCOPE FOR COMMERCIAL LAUNCH................................. 8
3.4 OVERALL ASSUMPTIONS................................................ 9
4.0 VOIP NETWORK.......................................................... 10
4.1 NETWORK ARCHITECTURE............................................... 10
4.2 SERVICE LEVEL OBJECTIVES (OPS METRICS ARE UNDER DEVELOPMENT)....... 10
4.3 SECURITY (UNDER DEVELOPMENT, CLARIFICATION AND ROLES TBD).......... 11
5.0 END USER EXPERIENCE................................................... 13
5.1 PRIMARY PHONE NUMBERS.............................................. 13
5.2 SECONDARY PHONE NUMBERS............................................ 13
5.3 NUMBER TRANSFERABILITY (NTA) (TO BE CONFIRMED ONCE TELCO PARTNER
RELATIONSHIPS ARE ESTABLISHED):.................................... 14
6.0 STATIC E911........................................................... 16
7.0 MINIMUM SYSTEM REQUIREMENTS........................................... 17
7.1 INTERNET ACCESS SPEED.............................................. 17
7.2 HOME NETWORK REQUIREMENTS.......................................... 17
8.0 WEB APPLICATION - TBD................................................. 18
8.1 REGISTRATION PROCESS / ORDERING PROCESS - (ROLES TO BE CONFIRMED).. 18
8.2 CLASSES OF SERVICE (COS) (TO BE CONFIRMED DUE TO IT IMPACTS -
FURTHER DEFINITION OF END USER EXPERIENCE IN THIS AREA REQUIRED)... 20
9.0 SERVICE PROVISIONING AND FULFILLMENT (TO BE CONFIRMED)................ 21
9.1 DIGITAL VOICE SERVICE END USER KITS (EXAMPLE ONLY - CW TO DEFINE).. 21
9.2 KIT PREPARATION.................................................... 21
9.3 PROCESS FULFILLMENT FLOW CHART..................................... 21
10.0 BILLING.............................................................. 22
10.1 CHARGEABLE ITEMS (TO BE DEFINED)................................... 22
10.2 ▇▇▇▇ COMPONENTS - TO BE MADE AVAILABLE TO CLEARWIRE FOR BILLING
PRESENTMENT........................................................ 22
10.3 PROVISIONING AND BILLING (NEEDS TO BE REVISTED BASED ON CW MODEL).. 23
10.4 BILLING START DATE................................................. 23
10.5 CONTRACTS - RULES AND PENALTY FEE (TBD BY CLEARWIRE)............... 24
10.6 NORTH AMERICA LONG DISTANCE REGION DEFINITION...................... 24
10.7 END USER CARE (VIEWING BILLS AND ADJUSTMENTS)...................... 24
11.0 SUPPORT.............................................................. 25
11.1 HOURS OF OPERATION................................................. 25
11.2 TECHNICAL SUPPORT: PROPOSED MODEL ABOVE WEB PORTAL (END USER
SERVICE LEVEL)..................................................... 25
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12.0 TRACKING & REPORTING:................................................ 28
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REVISION HISTORY
DATE VERSION AUTHOR DESCRIPTION
--------------- ------- ------------ -----------
Jan. 26th, 2005 1.0 ▇▇▇▇ ▇▇▇▇▇▇ Initial CW Draft based on revisions to BCE
Nexxia specific Service Description.
Feb. 3rd, 2005 1.1 ▇▇▇▇▇ ▇▇▇▇▇▇ Revisions to Technology-specific sections
Feb. 8th, 2005 IT ▇▇▇▇▇ ▇▇▇▇▇ Revisions to overall document
Feb. 9th, 2005 1.2 ▇▇▇▇▇ ▇▇▇▇▇▇ Revisions to overall TD
Feb. 11th, 2005 1.3 ▇▇▇▇▇ ▇▇▇▇▇▇ Overall Revisions with Product Input
and ALL
Feb. 13th, 2005 1.4 ▇▇▇▇▇ ▇▇▇▇▇▇ Overall Revisions to final draft
Feb. 14th, 2005 1.5 ▇▇▇▇▇ ▇▇▇▇▇▇ Revisions from various team members re
network and portal piece
Feb. 15th, 2005 1.6 ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇'▇▇▇▇▇ revisions
Added network diagram
Feb. 15th, 2005 1.7 ▇▇▇▇ ▇▇▇▇▇▇ Further revisions to improve clarity and
context, as well as consistency of
document conventions
Feb. 15th, 2005 1.7B ▇▇▇▇ ▇'▇▇▇▇▇ Clarity and grammatical edits only;
version initially forward to Clearwire
for review.
Feb. 17th, 2005 1.8 ▇▇▇▇▇▇▇ ▇▇▇▇▇ Revisions to home networking diagrams,
addition of reports details, change in
the operational support model
Feb. 18th, 2005 1.9 Clearwire CW revisions
Team
Feb. 23, 2005 2.0 ▇▇▇▇▇ ▇▇▇▇▇▇ Added revisions from IT and TD teams
Feb. 24, 2005 2.1 Technology Added provisioning server interactions
Development diagram, removed ▇▇▇▇ Canada logo, replaced
Team, ▇▇▇▇ ▇▇▇▇ Canada with BCE Nexxia, addition of
▇▇▇▇▇, ▇▇▇▇ details on service assurance model
▇'▇▇▇▇▇,
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1.0 DOCUMENT OBJECTIVES
The objective of this document is to provide a detailed description of the Voice
over IP service which may be offered via Clearwire in their US consumer
footprint. This description will be used by the service development teams to
communicate the requirements of the project.
-- THE CONTENTS OF THIS DOCUMENT SHOULD BE CONSIDERED DYNAMIC AND WILL BE
UPDATED ACCORDING TO ONGOING CONSULTATION BETWEEN CLEARWIRE AND BCE CONSISTENT
WITH THE PROVISIONS OF THE MASTER SERVICE AGREEMENT.
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2.0 INTRODUCTION
2.1 NOTATION
Voice over Internet Protocol is commonly referred to as VoIP, Voice over
IP, or more generally, Internet Telephony.
An Analog Terminal Adapter (ATA) is at the heart of the VoIP service from
the consumer perspective. For the purpose of this document, the ATA will be
referred to as the "Voice Adapter". Definitions of the ATA will be included
in this document once BCE Nexxia and Clearwire have finalized CPE plans.
An Internet Sharing Device (ISD), Residential Gateway (RG), and Internet
Gateway (IG) all describe a product that can be referred to as a Router.
For clarity and convenience, the term "Router" will be used throughout this
document to identify that hardware device. Finally, for the purpose of this
document, the term modem should be taken to refer to a broadband or
high-speed modem provided for the Clearwire high speed internet service.
For the purposes of this document, we will refer to the Clearwire VoIP
service as "CW Digital Voice" or simply "Digital Voice".
2.2 BACKGROUND
Commercial launch date is targeted for October 2005.
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3.0 PROJECT DESCRIPTION
3.1 REQUIREMENTS
o Use of 2 Ethernet port Sipura Voice Adapter with appropriate
firmware
o Any GUI development, documentation from BCE Nexxia to CW -
both printed and online - would be available in English
exclusively
o BCE Nexxia and CW will collaborate on content and process for
kits and equipment returns/exchanges
o Customers would have one primary Digital Voice Number (from
local service area only) and would have the ability to
purchase additional numbers from other service areas.
o Fax support is not currently part of the service however it is
on the development plan with expected T-38 or G.711
pass-through being considered. Firm date not yet established
o Number Transferability (NTA) Technical and Business process
would be developed with each CLEC (telco) partner but a common
interface would be developed for integration with Clearwire
processes.
o Unrated usage would be electronically available for
presentation on Clearwire portal.
o CDRs would be made available to CW for presentment to end
users via the end user - facing account management web
application. Date and exact method to be confirmed.
o Service would be from the following cities, but not restricted
to, subject to PSTN/regulatory limitations:
[***]
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[***]
3.2 OFFERING:
o One (1) primary Digital Voice number
o Additional phone numbers - charged at pre-determined rate per
month plus one-time activation fee (only one number per city
due to IT limitations)
o Local Number Transferability to / from wireline local service
(where possible - required comprehensively throughout the US)
o Local and long distance calling in the US and Canada,
including Hawaii and Alaska, but excluding other US
territories, Mexico, and the Caribbean.
o International Overseas calling - charged at pre-determined
rates per month by country
o 611 - Direct connection to Digital Voice End User Support
o Static E911 (BCE Nexxia's patent pending solution architecture
to be adapted pending further design study)
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o 411 without call completion - fee based (Details to be
determined once relationship are established with Telco
Partners)
o Voicemail (Parameters to be set by CW/BCE Nexxia)
o Voicemail to Email (via attached audio file playable in
standard PC media players)
o Caller ID with name, number, date, and time (requires
functionality on telephone set)
o Visual Call Waiting (requires functionality on telephone set)
o Call Forwarding
o Call Forwarding Plus (customization based on what calls to
forward, when to forward, and up to 10 numbers to forward to)
o 3-Way Calling
o Meet Me Conferencing (fee-based)
o Call Screening
o Do Not Disturb (schedule to forward incoming calls directly to
Voicemail)
o International Call Block
o Per-Call Caller ID Blocking (*67)
o 'Block the Blocker' capability desired - inclusion pending
confirmation of technology availability
o Application Programming Interfaces (API's) that enable ONLINE
USER SELF-CARE for access to Digital Voice account info, user
profile, service & feature management including:
o missed calls list
o phone usage reporting
o personal profile / account info updates
o problem reporting interface / trouble ticket
tracking by user
o End User support & FAQ content
o personalization of number of rings before
forwarded to voicemail
o personalization of included features listed
above (Call Forward Plus, Call Screening,
e-Mail destination for Voicemail delivery,
Do Not Disturb parameters, etc).
All of the above features subject to confirmation once
Clearwire product definition complete. Understood that above
list has some constraints related to platform and existing BCE
infrastructure.
3.3 OUT OF SCOPE FOR COMMERCIAL LAUNCH
ITEM STATUS
--------------------------------------------------------------------------------
PIC Long distance Out of Scope
--------------------------------------------------------------------------------
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--------------------------------------------------------------------------------
10-10 long distance and 900 #'s Out of Scope
--------------------------------------------------------------------------------
Operator Assistance Out of Scope
--------------------------------------------------------------------------------
Multiple phone numbers from one city Out of Scope
--------------------------------------------------------------------------------
Multiple ATA's on a single
residential broadband connection Out of Scope
--------------------------------------------------------------------------------
411 Call Completion Out of Scope
--------------------------------------------------------------------------------
Battery Backup Out of Scope
--------------------------------------------------------------------------------
3.4 OVERALL ASSUMPTIONS
o Clearwire will ensure adequate broadband IP connection quality
and sufficient network capacity between the home and the local
Clearwire POP.
CW Digital Voice Service is assumed to be initially based on a
self-install model.
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4.0 VOIP NETWORK
4.1 NETWORK ARCHITECTURE
Network diagrams need to be conformed to the agreed upon Clearwire - BCE Nexxia
architectures.
The consumer VoIP application is based on the Nortel MCS 5200/CS2K platform.
There are two types of sites deployed - a "main site" and a "POP". Main sites
(location to be confirmed by BCE Nexxia) have the MCS/CS2K server complex,
several PSTN gateways, multimedia servers to support offerings such as voicemail
and conferencing as well as voice adapter provisioning servers. Main sites are
fully redundant from a network perspective and BCE Nexxia would work to enable
fail-over functionality between the Main Sites (with delivery timeframe updates
to CW). POP sites provide local "dial tone" for incoming and outgoing calls in
various areas through the means of PSTN gateways. For POP sites, redundancy is
only deployed for outgoing calls. (i.e., in the event of a main site failure it
would still be possible to place calls from the area served by a given POP (by
using PSTN failover i.e. calls would be "backhauled" to our Toronto or Montreal
main sites and routed through our network) but incoming calls to primary or
secondary phone numbers in that site would not be possible.)
The Internet is used to interconnect to the main sites. Such sites must be
protected with a firewall. The current plan anticipates that the VoIP service
may share a firewall with other services delivered through the Clearwire POP.)
4.2 SERVICE LEVEL OBJECTIVES (OPS METRICS ARE UNDER DEVELOPMENT)
The following Operational metrics would be measured and averaged over the month
and would exclude end-user devices:
[***]
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[***]
4.3 SECURITY (UNDER DEVELOPMENT, CLARIFICATION AND ROLES TBD)
4.3.1 INTRODUCTION
The service at a minimum secures the transmission of user passwords,
and information that can compromise the availability of the service and
or its functionality. Devices that are subject to abuse, attack or
intrusion would be protected to ensure the quality and availability of
the service. Standard practices and devices would be available and
regularly monitored by BCE Nexxia's network operations group.
4.3.2 WEB SERVICES PLATFORM (PORTAL)
User interactions with the VoIP web services would be accomplished in a
secure manner. All communications to web services would be encrypted.
Also only known trusted clients would be able to access the VoIP web
services. Security architecture and solution would be mutually agreed
where relevant upon once various impacts (costs, end user impact) have
been considered.
The Web Services Platform (this needs to be defined not clear what this
is) itself will be protected by firewalls and Intrusion Detection
Systems as well the platform will be protected by anti-virus software
if the platform is vulnerable to such intrusions.
4.3.3 PROVISIONING
All provisioning interactions between the Web Services Platform/end
user devices and the End User Provision Platform would be secure.
Provision requests once received by the End user provisioning platform,
would be secured and stored securely on the platform.
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Provisioning request should only be accepted from known trusted devices
to the extent that they can be identified, by the provisioning
platform.
(HIGH -LEVEL ATA AND MCS PROVISIONING PROCESS GRAPHIC)
4.3.4 MCS/CS2K COMPLEX
The MCS/CS2K complex would be protected from unwanted traffic and
intrusion that may affect the service quality and integrity.
Unauthorized attempts would be denied and detected; detected
unauthorized attempts would be analyzed for malicious data and dealt
with in an appropriate manner. In the event malicious data is able to
bypass perimeter defences host level intrusion systems would be in
place to assess the level and severity of the intrusion and minimize
the affect. The platform would be protected by anti-virus software if
the platform is vulnerable to such intrusions.
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5.0 END USER EXPERIENCE
One of the key aspects of the CW Digital Voice service is the ability
to map multiple phone numbers to a single end user account. The list of
multiple numbers must include a single "primary phone number" (Digital
Voice Number) and a mutually agreeable limit of additional "secondary
numbers".
The service supports a maximum of one number, primary or secondary,
from any one city. This means it is not possible to have a primary
Digital Voice Number and a secondary Number from the same city or two
secondary numbers from the same city due to systems limitations. I CW
and BCE Nexxia would work to remove this restriction as part of feature
enhancement efforts.
5.1 PRIMARY PHONE NUMBERS
"Primary phone number" is the term used to describe the main number for
the CW Digital Voice service. All outbound calling charges and taxes
are based on the primary number. The primary number is the E911 number
and the associated address must be valid and in the same city as the
primary number for E911 call routing.
5.1.1 IMPLICATIONS OF PRIMARY NUMBER SELECTION
All calls made by the user Would be charged as though they are made
from the location of the primary phone number. Implications of primary
phone number selection include:
o Dial-in number to access Voicemail would have the
same area code as the user's primary number.
o Primary number is always used as either call
origination point or call termination point for usage
tracking and billing
o Meet-Me-Conferencing dial-in number would have the
same area code as the user's primary number.
5.2 SECONDARY PHONE NUMBERS
A "secondary phone" number allows parties in other cities to call CW
Digital Voice end users by dialling local phone numbers within those
cities, even if the Digital Voice end user resides in, and/or has
selected a primary number from a different city.
(Eg. a user with an Anchorage primary phone number who subscribes to a
secondary phone number in St. Cloud can provide parties within the St.
Cloud calling area with a local St Cloud number that rings through to
his/her Anchorage-based Digital Voice line. Secondary numbers have no
effect on outgoing calls made by the user, as all outgoing calls are
treated as if they are made from the location of the primary number).
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Used to place calls Used to receive calls
------------------- ---------------------
Primary phone number YES YES
Secondary phone number NO YES
5.3 NUMBER TRANSFERABILITY (NTA) (TO BE CONFIRMED ONCE TELCO PARTNER
RELATIONSHIPS ARE ESTABLISHED):
End users would have the option of migrating their existing local wireline
phone number to their CW Digital Voice service to use that number as their
primary Digital Voice number. Conversely, they may have the option of
migrating their Digital Voice number to their local wireline service. End
users would be able to do the following:
o Transfer local wireline phone number to their new or
existing Digital Voice service
o Transfer Digital Voice number to a local wireline
service
o Transfer CLEC (wireline or VoIP) number to CW Digital
Voice service, (depending on system & process
availability)
o Transfer Digital Voice Number to a CLEC (wireline or
VoIP), (depending on system & process availability)
Request Completed from end user
SLA Target to Complete Request Perspective
Port In Transactions X% Complete in X Time X% Complete in X Time
Port Out Transaction X% Complete in X Time X% Complete in X Time
NOTE: It is essential that the Partner Telcos be defined in order to determine
the NTA solution(s). The MapleVoice solution is contingent on Partner Telcos &
their NTA processes.
5.3.1 IMPLICATIONS OF NTA
o Once a Digital Voice primary number is ported to wire line,
the Digital Voice account must have a new primary number
assigned or be terminated.
o Static E911 profile needs to be updated for activation or
deactivation of primary number being ported to either wireline
and Digital Voice service
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o In the event that a new primary number is selected for an
existing Digital Voice account updates may be required for
certain supported features, eg. Dial-in number for access to
Voicemail account, Call Screening list, etc.
5.3.2 OUT OF SCOPE FOR NTA
Porting of numbers that are not supported by wireline is out of scope.
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6.0 STATIC E911
At the time of the creation of this document, the Static E911 end user
experience or architecture has not been finalized for USA market. A BCE Nexxia
patent pending solution has been implemented for BCE Nexxia's service area and
would be leveraged/adapted as appropriate for the CW deployment. As listed in
section 3.1, Static E911 will be part of the initial VOIP offering.
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7.0 MINIMUM SYSTEM REQUIREMENTS
To subscribe to Digital Voice service, end users must meet the following
requirements:
7.1 INTERNET ACCESS SPEED
(*NOTA BENE: the following is based on a pure "over-the-top" implementation and
does NOT yet contemplate the anticipated benefits to VoIP from CW's ability to
prioritize bandwidth for the Digital Voice application vs. browsing/e-mail etc.
This section must be reconciled with CW's Internet access product QoS
implementation
o Minimum: in excess of 64kpbs upstream, and in excess of 128kbps
downstream
o Recommended: in excess of 384kbps upstream, and in excess of l.0Mbps
downstream
o Limitation with CW's low-tier Internet access service:
Current interim 3-Way Calling implementation would NOT offer
acceptable performance (based on current G729 codec working
assumptions). Planned future redesign of this feature would
alleviate the issue with low-tier. Internet access products
such as that which is described as Minimum above.
o Limitation with CW's low-tier Internet access service:
Concurrent use of PC for large file transfer/download and/or
browsing of complex websites may also decrease the sound
quality of a Digital Voice call.
7.2 HOME NETWORK REQUIREMENTS
All Clearwire end users would be provided with a 2 Ethernet LAN port Sipura ATA.
The WAN port on the ATA will connect to the Clearwire CPE and the other will
connect to the end user's computer or home networking equipment.
TYPICAL HOME
(TYPICAL HOME GRAPHIC)
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8.0 WEB APPLICATION - TBD
8.1 REGISTRATION PROCESS / ORDERING PROCESS - (ROLES TO BE CONFIRMED)
8.1.1 NUMBER POOL MANAGEMENT
8.1.1.1 NUMBER STORAGE
Numbers for Voice over IP would be stored and administered
in the VoIP service administration application provided by
BCE Nexxia Numbers for each POP would be loaded by ▇▇▇
Operations, based on demand. All numbers must be
pre-provisioned in order to be eligible for end user
assignment.
8.1.1.2 NUMBER POOL MANAGEMENT TOOL
The Number Pool Management Tool would support activations
and deactivations as well as suspensions and provisioning.
This tool would have the added capability of dealing with
Number Transferability and other services defined in the
additional features and change.
8.1.1.3 THRESHOLDS
Thresholds would be set for each POP to alert the Number
Admin group when additional numbers are required. Thresholds
would vary by POP and would be adjustable.
8.1.1.4 TAGGING
Numbers would be tagged as follows:
o Activated
o Assigned to an end user but not yet activated
o Available
o Unavailable, and in the process of being aged for 60
days
o Unavailable, suspended and not being aged (end user
requested)
8.1.1.5 NUMBER DE-ACTIVATION (CW TO DEFINE PARAMETERS)
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8.1.1.6 METRICS
Data would be available to the Number Admin group in order
to enable them to manage the number database effectively and
efficiently. Some possible metrics by POP include:
o Total working
o Total available
o Total in the aging pool (perhaps broken down further,
by length of time to indicate date of availability)
o Total suspended and not aging
o Total suspended and aging
o Total assigned but not yet activated
o Churn statistics (For example, outs and ins in a given
period of time)
8.1.2 SERVICE/FEATURE MANAGEMENT
End users would be able to configure features in real-time using a web
application. This functionality would be developed and enabled on a
mutually agreeable timetable via a secure feature management page.
Cancellation of service must be made through a CSR.
SOLUTION IS DEPENDENT ON CW OSS SOLUTION & STRATEGY.
8.1.3 PROFILE MANAGEMENT
BCE Nexxia will provide the ability to manipulate the customers VoIP
service features/profile (preferably via an API). The customer profile
information stored by the VoIP services will be the amount necessary
to ensure the switch is provisioned properly and customer features are
accurate per their requests. Clear Wire is the owner of the customer
data however some duplication will be required to support customer
feature selection.
SOLUTION IS DEPENDENT ON CW OSS SOLUTION & STRATEGY.
8.1.4 ACCOUNT MANAGEMENT
BCE Nexxia would provide VoIP services to manage the end user account.
The account information (can we come up with an example here so this
can be clarified) stored by the VoIP services will be minimal as Clear
Wire is the owner of the end user account.
SOLUTION IS DEPENDENT ON CW OSS SOLUTION & STRATEGY.
8.1.5 BILLING MANAGEMENT
Detailed information on billing processes is outlined in section 10.0.
SOLUTION IS DEPENDENT ON CW OSS SOLUTION & STRATEGY.
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8.1.6 HELP/TROUBLESHOOTING
8.1.7 AUTO-GENERATED EMAILS
There would be several instances where the Clear Wire application
would send auto-generated emails. Details of this area will be
confirmed once Clearwire has completed product definition
documentation. Some of the content of these emails is dynamic for the
purpose of personalizing the email for the end user. The following is
a list of the actions that will result in an auto-generated email:
1. Order confirmation
2. 911 service address registration completed and validated
with verified updates across network elements - end user
will receive confirmation email
8.2 CLASSES OF SERVICE (COS) (TO BE CONFIRMED DUE TO IT IMPACTS -- FURTHER
DEFINITION OF END USER EXPERIENCE IN THIS AREA REQUIRED)
Class of Service is available on the platform, should CW wish to take
advantage of this set of features, parameters would need to be defined.
8.2.1 CLASS OF SERVICE LEVELS - NETWORK SIDE
Processes and business rules need to be defined to establish who has
the authority to apply the above rules.
Network based rules over-ride any functionality that users may be
given to define their own service levels.
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9.0 SERVICE PROVISIONING AND FULFILLMENT (to be confirmed)
Digital Voice service kit would be provisioned, fulfilled, and shipped by
utilizing the CW preferred shipping vendor. Both parties will collaborate
to develop as appropriate. A detailed statement of work document that
describes the exact accountabilities, deliverables, processes, fees, and
timeframes between Digital Voice Web application, and CW's preferred
shipping vendor is to be developed in a separate document.
9.1 DIGITAL VOICE SERVICE END USER KITS (EXAMPLE ONLY - CW TO DEFINE)
Digital Voice service installation kit could have the following contents:
o Welcome Letter
o Quick Set-up Guide
o Voice Adapter (Sipura)
o Ethernet Cable
o Power Supply
o Phone Cable
9.2 KIT PREPARATION
Data file exchange to be defined by CW
9.3 PROCESS FULFILLMENT FLOW CHART
TBD (CW and Preferred Shipping Vendor)
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10.0 BILLING
PLEASE NOTE: ALL BILLING ITEMS ARE TO BE FINALIZED PENDING CW OSS SOLUTION.
10.1 CHARGEABLE ITEMS (TO BE DEFINED)
The Digital Voice service charges would be available for the following
items:
o Base package that the end user has registered for - monthly charge
(The number of packages and other details - TBD)
o Service activation charge (can be visible or not visible on ▇▇▇▇, may
be waived)
o Change of Digital Voice (primary) number (can be visible or not
visible on ▇▇▇▇, may be waived)
o Activation of Additional Numbers (can be visible or not visible on
▇▇▇▇, may be waived)
o Change of Additional Number(s)
o Recurring monthly charges for Additional Number(s) (can be visible or
not visible on ▇▇▇▇, may be waived)
o Recurring monthly charge for a la carte features (such as Meet Me
Calling) (can be visible or not visible on ▇▇▇▇, may be waived)
o North American outbound non toll free minutes
o Non-free-calling-area usage (which includes Alaska and Hawaii)
o Tax requirements need to be defined
10.2 ▇▇▇▇ COMPONENTS - TO BE MADE AVAILABLE TO CLEARWIRE FOR BILLING PRESENTMENT
BCE Nexxia would provide unrated voice usage to Clear Wire in CDR or IPDR format
in a near realtime manner. (date and details to be determined)
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10.3 PROVISIONING AND BILLING (NEEDS TO BE REVISITED BASED ON CW MODEL)
End users are encouraged to order Digital Voice service on CW web-site.
Customers would choose to subscribe to Internet Access Services either with
Digital Voice Service or not. They would also need to identify what a la
carte features or Additional Number(s) they wish to order. The actual
selection and configuration of their features, including the cities in
which their Digital Voice Number (i.e. primary number) and Additional
Numbers, is done on a Web application during the ordering process. The
ordering system would need to advise the Digital Voice Web application
which service, package, etc. the customer has subscribed to. On an ongoing
basis, Digital Voice Web application would have to advise the billing group
when certain events take place that trigger billing (such as changing a
primary number). Similarly, the ordering Web application would have to
advise Digital Voice Web application when changes to their profile have
been made (services added/deleted/changed). This area needs further
clarification between CW and BCE. See diagram below for initial integration
focus areas.
(INITIAL INTEGRATION FOCUS AREAS DIAGRAM)
10.4 BILLING START DATE
For existing Clearwire Internet service subscribers, billing for Digital
Voice service begins the day the order is taken for Digital Voice service.
Billing cycle would be the same as Clearwire Internet service.
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For new Clearwire Internet service subscribers, billing for Digital Voice
service begins when Clearwire Internet service is billed; i.e. at
activation of Clearwire Internet service (connection of modem) or xdays
after ordering of Clearwire Internet service. The above is subject to
change once product definition document is completed.
10.5 CONTRACTS - RULES AND PENALTY FEE (TBD BY CLEARWIRE)
10.6 NORTH AMERICA LONG DISTANCE REGION DEFINITION
Included in North America LD:
o Canada
o Continental U.S., Hawaii, Alaska
Excluded from North America LD:
o Mexico
o Caribbean, including all U.S. territories (San ▇▇▇▇, and U.S.
Virgin Islands)
10.7 END USER CARE (VIEWING BILLS AND ADJUSTMENTS)
Clear Wire's OSS will provide these functions.
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11.0 SUPPORT
The diagram below conforms with Section 11.2 and reflects that CW Tier 2 (NOC)
escalates to BCE Nexxia Tier 2. All end user interaction is between CW and the
end user. BCE Nexxia does not interact with CW end users, all BCE Nexxia -CW
interaction is NOC to NOC.
SERVICE ASSURANCE
GENERIC PROCESS VIEW DRAFT
(GENERIC PROCESS VIEW GRAPHIC)
11.1 HOURS OF OPERATION
1. Business Office: Consistent with Clearwire business office hours
2. ▇▇▇ 7x24
3. iTECH 7x24
4. Vendor - varies, but typically 8:00am to 5:00pm Monday to Friday,
off hours duty manager
11.2 TECHNICAL SUPPORT: PROPOSED MODEL ABOVE WEB PORTAL (END USER SERVICE LEVEL)
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DEFINITIONS:
o Starting point is the CW HD -They would contact the
appropriate BCE Nexxia entities to get issues resolved.
Escalated calls to BCE Nexxia should predominately be
network issues in general not end user specific tickets
Accountabilities include:
o Open tickets unless we can share ticket systems somehow
- would be more efficient
o Perform high level testing, including physical customer
infrastructure testing
o Problem resolution
o Manage ticket and determine next course of action
o Sympatico Member Services (referred to as SMS HD) will act
as "passthru" only if the trouble ticketing tools solution
between BCE Nexxia and CW can not align to bypass this step.
o Level 2 support (L2 support) is defined as the BCE Nexxia
Centre of Excellence (▇▇▇). The ▇▇▇ is a "front door" team
who is responsible for all VoIP market segments support.
They interface with the BCE Nexxia downstream operational
teams if/when required. L2 support accountabilities:
o Second line of support
o Determine/fix issues with translations, higher level
MCS complex related troubleshooting
o Manage ticket within internal downstream operations
teams (including Adaptative infrastructure for Portal
and code issues)
o Provisioning server issues - front door to apps
management
o Level 3 support (L3 support) is defined as the BCE Nexxia
iTECH centre. The iTECH centre is responsible for resolving
complex issues as well as testing and validating fixes. L3
accountabilities are:
o Complex troubleshooting on the MCS complex, voice
network and DMS
o Level 4 support (L4 support) is defined as vendor support.
L4 support accountabilities:
o Final point of support for highly complex problems
11.2.1 EXISTING PORTAL INTERNAL INTERFACE (TBD)
11.2.1.1 PASSWORD RESET
o Ability for Helpdesk agents to reset end user passwords -
needs to CW tier 1 function
o Ability for Management level access to reset Agent level
access passwords - CW tier 2 function
26
BCE NEXXIA RESTRICTED
o Ability for Administrator level access to reset Management
level access passwords- CW tier 2 function
o Ability for Administrator level access to reset Management
level access passwords - duplicate of above
o Password support aligned with BCE ▇▇▇▇▇▇.▇▇ single sign-on
method - pending confirmation that CW is adopting this
platform
o Ability for helpdesk agents to reset Voicemail passwords -
needs to be CW Tier 1 function
11.2.1.2 END USER REPORT PROBLEM
The agents would use the CW trouble reporting system (Level 1).
System would auto-populate end user information based available
data. The CW trouble reporting system will interface with the
MVCOM trouble management system (for ▇▇▇▇▇ ▇?)-▇▇▇▇ ▇▇ ▇▇▇▇ ▇ -▇
▇▇▇▇▇▇ ▇▇ CW BEFORE ISSUE GETS TO BCE NEXXIA
27
BCE NEXXIA RESTRICTED
12.0 TRACKING & REPORTING:
CW would have access to the following (but not limited to) reports:
Service quality metric reports based on Section 4.2 parameters are yet to be
defined.
All reports listed in the following table are parameterized reports that can be
viewed in HTML or exported to excel. Figure 1 is an example of the interface to
specify report parameters.
(DASHBOARD REPORT GRAPHIC)
FIGURE 1
REPORT NAME DESCRIPTION FIELDS
----------- ----------- ------
VOIP LD USAGE-OUTSIDE LCA The VoIP LD usage report would o Customer ID
contain the total volume of o First Name
calls by minutes outside the o Last Name
local calling area but within o Number of Calls, Total
Canada. This would be used to Minutes
determine long distance calls o Off-Peak, Full Rate
within Canada. The report would Average Call Length
be generated based on a Number of Days on Service
selected time frame. o Average Minutes per Days on Service
VOIP INTRA USAGE All calls that are initiated in o Customer ID
either Quebec or Ontario and o First Name
the destination is also either o Last Name
Quebec or Ontario is defined as o Number of Calls
an "Intra" call. This can be
28
BCE NEXXIA RESTRICTED
determined by checking the o Total Minutes
originating and destination area o Off Peak
codes against a look up table. The o Full Rate
report would be generated based on o Average Call Length
a specified time frame. Totals o Number of Days on Service
would be required for each o Average Minutes per Days on Service
grouping. The report should be
sorted by 'Total Calls' in
descending order
VOIP Inter Usage All calls that are initiated in o Customer ID
Quebec or Ontario with a o First Name
destination outside Quebec and o Last Name
Ontario but within Canada are o Number of Calls
defined as an "Inter" call. The o Total Minutes
report would be generated based on o Off-Peak
a specified time frame. Totals o Full Rate
would be required for each o Average Call Length
grouping. Inter calls can be o Number of Days on Service
determined by checking the o Average Minutes per Days on Service
originating and destination area
codes against a look up table. The
report should be sorted by 'Total
Calls' in descending order.
VOIP US Usage All calls that have a destination o Customer ID
that is within the continental o First Name
United States would be displayed in o Last Name
this report. The report would be o Number of Calls
generated based on a specified time o Total Minutes
frame. US calls can be determined o Off-Peak
by checking against the provided o Full Rate
look up table. Totals would be o Average Call Length
required for each grouping. The o Number of Days on Service
report should be sorted by 'Total o Average Minutes per Days on Service
Calls' in descending order.
VOIP OverSeas Usage All calls that have a destination o Customer ID
that is not within the continental o First Name
United States or Canada. The report o Last Name
would be generated based on a o Number of Calls
specified time frame. Totals would o Total Minutes
be required for each grouping. The o Off-Peak
report should be sorted by 'Total o Full Rate
Calls' in descending order. o Average Call Length
Overseas calls can be determined by o Number of Days on Service
checking against the provided o Average Minutes per Days on Service
lookup table.
Feature penetration There are six different features o Customer ID
that would be offered through VoIP. o First Name
The report would detail the o Last Name
features a customer has activated. o Voice Mail
It would also total the number of o VM to Email
end user using each feature. o Call Forwarding
o Call Waiting
o Caller Screening
Long Distance Replacement Long distance replacement reporting o Customer ID
Report tracks the usage of long distance. o First Name
29
BCE NEXXIA RESTRICTED
Calls that appear to be local over o Last Name
VoIP telephony but are actually o # of Off Peak INTRA Mins
long distance calls when placed o # of Full Rate INTRA Mins
over the PSTN network. Off-peak o # of Off-Peak INTER Mins
minutes include times between 18:01 o # of Full Rate INTER Mins
and 07:59 Monday to Friday plus all
day weekends. The full rate minutes
are between 0:800 and 18:00 Monday
to Friday. All calls that are
initiated either in Quebec or
Ontario and their destination is
also either in Quebec or Ontario
are INTRA calls. INTER calls are
those that are initiated in Quebec
or Ontario with a destination
outside of Quebec and Ontario.
VOIP to VOIP Usage All calls that start from a Voip o Customer ID
subscriber to another Voip user. o First Name
This can be determined using the o Last Name
call connection type table. o Number of Calls
o Total Minutes
o Off Peak
o Full Rate
o Average Call Length
o Number of Days on Service
o Average Minutes per Days on Service
VOIP Incoming Usage All incoming calls to Voip users o Customer ID
would be recorded in this report. o First Name
These calls can be determined in o Last Name
the T_Usage Details table under o Number of Calls
the call direction field. o Total Minutes
o Off-Peak
o Full Rate
o Average Call Length
o Number of Days on Service
o Average Minutes per Days on Service
VOIP Overall Usage The VoIP overall usage report would o Customer ID
display all usage for each o First Name
customer. The usage can be derived o Last Name
from the T_Usage Details table. o Number of Calls
o Total Minutes
o Off-Peak
o Full Rate
o Average Call Length
o Number of Days on Service
o Average Minutes per Days on Service
Primary/Secondary Numbers The total primary and secondary o POP
by Pop numbers by pop would be captured by o Total Primary Numbers
30
BCE NEXXIA RESTRICTED
this report. The report generated o Total Secondary Numbers
would have a filter for each
region, so that only a specific
region can be viewed as well as all
regions. The report would be
generated based on a specified time
frame
Directory assistance Usage The Directory Assistance usage o Customer ID
Report report would contain the total o First Name
directory assistance usage broken o Last Name
down by customer. A directory o Number of Calls
assistance call is defined when the o Total Minutes
destination of the call is 411 or o Average Call Length
(NPA) 555 - 1212. The report would
be generated based on a selected
time frame
Telephone number The telephone number utilization o POP (NPA - City)
utilization report report would determine the o Switch Name
utilization of numbers allocated to o Assigned TN Ranges
the VoIP Maple Voice number pool. o Available TN Ranges
o Aging TN Ranges
o Total TN
31
SCHEDULE 2
ACCEPTABLE USE POLICY
CLEARWIRE ACCEPTABLE USE POLICY
EFFECTIVE [INSERT EFFECTIVE DATE]
THIS ACCEPTABLE USE POLICY IS A MATERIAL PART OF ANY AGREEMENT WITH CLEARWIRE
FOR PROVISION OF ITS SERVICES TO BUSINESS AND CONSUMER CUSTOMERS. PLEASE READ
AND FOLLOW THIS ACCEPTABLE USE POLICY CAREFULLY. THIS ACCEPTABLE USE POLICY MAY
BE REVISED FROM TIME TO TIME BY CLEARWIRE AS SET FORTH BELOW.
Clearwire LLC and its affiliates (collectively "Clearwire") have designed this
Acceptable Use Policy ("AUP") with a view towards enhancing the use of
Clearwire's fixed wireless broadband and other communication services and
equipment (each separately and collectively, the "Service" or "Services") by our
subscribers and their end users (collectively, "you") by designating standards
for acceptable use and standards for prohibiting unacceptable use. This AUP
forms part of the agreement between Clearwire and you and is incorporated by
reference into Clearwire's Terms and Conditions (the "Terms and Conditions")
found at ▇▇▇.▇▇▇▇▇▇▇▇▇.▇▇▇; terms used in this AUP are used as defined in the
Terms and Conditions. All subscribers of the Service (anyone who uses or
accesses the Service) must comply with, and shall be bound by the terms of, this
AUP.
PROHIBITED ACTIVITIES. For the benefit of all of Clearwire's subscribers, as a
condition of the Service, Clearwire prohibits the following activities:
1. UNLAWFUL OR IMPROPER USE OF THE SERVICE. You may not use the Service in a
manner prohibited by any applicable laws or regulations. Without limiting the
foregoing, you may not use the Service for any unlawful or abusive purpose, in
any way that could damage, disable, overburden, or impair any Clearwire
property, or in any way that directly or indirectly interferes with or disrupts
our network or adversely affects another's use or enjoyment of any Service,
including other Clearwire subscribers. You may not use or attempt to use the
Service in any manner such as to avoid incurring charges for or otherwise being
required to pay for such usage. You may not circumvent or attempt to circumvent
user authentication or security of any host, network, network element, or
account (also known as "cracking" or "hacking"). This includes, but is not
limited to, accessing data not intended for you, logging into a server or
account that you are not expressly authorized to access, or probing the security
of other networks. You may not interfere or attempt to interfere with any
services to any user, host, or network ("denial of service attacks"). This
includes, but is not limited to, "flooding" of networks, deliberate attempts to
overload a service, and attempts to "crash" a host. You may not use any kind of
program/script/command, or send messages of any kind, designed to interfere with
(or which does interfere with) any server or a user's session, by any means,
locally or via the Internet. The Service is intended for periodic, active use.
You may not use the Services on a standby or inactive basis in order to maintain
a connection. Pinging is prohibited.
65
2. EXCESS UTILIZATION OF NETWORK RESOURCES. The excessive use or abuse of
Clearwire's network resources by one subscriber may have a negative impact on
all other subscribers. Accordingly, you may not use the Service or take any
action, directly or indirectly, that will result in excessive consumption or
utilization of the system or network resources, or which may weaken network
performance, as determined in Clearwire's sole discretion. Such prohibited
actions include, but are not limited to: using the Service to host a web server
site which attracts excessive traffic at your location, continuously uploading
or downloading streaming video or audio, usenet hosting, or continuous FTP
uploading or downloading.
3. INTELLECTUAL PROPERTY INFRINGEMENT. You may not use the Service to store,
transmit or receive any material that infringes on any patent, trademark, trade
secret, copyright, or other proprietary or intellectual right of any party,
including, but not limited to, the unauthorized copying of copyrighted material,
the digitization and distribution of photographs from magazines, books, or other
copyrighted sources, or the unauthorized transmittal of copyrighted software.
4. OBJECTIONABLE MATERIAL. You may not use the Service to store, post, transmit,
or disseminate material or information that is unlawful, harmful, threatening,
abusive, harassing, libelous or defamatory, hateful, obscene, indecent, or
otherwise objectionable or which encourages or participates in conduct that
would constitute a criminal offense, gives rise to a civil liability, or
otherwise violates any local, state, national, or international law, order,
rule, or regulation.
5. JUNK E-MAIL. You may not use the Service to transmit or facilitate any
unsolicited or unauthorized advertising, telemarketing, promotional materials,
"junk mail", unsolicited bulk e-mail, unsolicited duplicative e-mail,
unsolicited commercial e-mail, fax broadcasting, or fax blasting (collectively,
"Spam"). Clearwire considers any unsolicited commercial mail to be Spam,
regardless of the amount of mail sent, unless the recipient has specifically
requested the information. An e-mail may be "unsolicited" for purposes of this
AUP if (1) the recipients' e-mail addresses were not obtained through a personal
or customer relationship between recipient and sender, (2) recipients did not
affirmatively consent to receive communications from the sender, or (3)
recipients have opted out of receiving communications from sender when given the
opportunity to do so.
6. FRAUDULENT ACTIVITY. You may not use the Service to make fraudulent offers to
sell or buy products, items, or services or to advance any type of financial
scam such as "pyramid schemes", "Ponzi schemes", or "chain letters." You may not
use techniques to hide or obscure the source of any e-mail or other
communication.
7. IMPERSONATION. You may not use the Service to impersonate any person or
entity, or falsely state or otherwise misrepresent your affiliation with any
person or entity, or to create a false identity for the purpose of misleading
others. Without limiting the foregoing, you may not use invalid or forged
headers, invalid or non-existent domain names or other means of deceptive
addressing.
8. SOFTWARE VIRUSES. You may not use the Service to upload files or transmit any
material that contains viruses, worms, Trojan Horses time bombs, cancelbots,
corrupted files, or other code that manifests contaminating or destructive
properties.
BCE NEXXIA/CLEARWIRE MASTER SUPPLY AGREEMENT
66
9. COLLECTING INFORMATION. You may not use the Service to store or collect, or
attempt to store or collect, personal information about third parties without
their prior knowledge and consent.
10. NEWSGROUPS. You should use your best judgment when posting to any newsgroup.
Many groups have charters, published guidelines, FAQS, or "community standards"
describing what is and is not considered appropriate. You must abide by such
guidelines. You may not post or list articles which are off-topic according to
the description of the group or send unsolicited mass e-mailings to ten or more
people if such e-mail could reasonably be expected to provoke complaints from
its recipients. Without limiting any other rights or remedies that Clearwire may
have under this AUP, the Terms and Conditions or applicable law, Clearwire may
cancel any postings that violate this AUP as determined by Clearwire in its sole
discretion.
11. USE OF YOUR ACCOUNT BY OTHERS. You may not, through action or inaction,
allow others to use the Service for illegal or improper activities or for any
purpose or in any manner prohibited by this AUP. You may not permit your
network, through action or inaction, to be configured in such a way that gives a
third party the capability to use the Service in an illegal or improper manner
or for any purpose or in any manner prohibited by this AUP.
12. RESELLING. You may not directly or indirectly reproduce, duplicate, copy,
sell, provision, resell, rent, lend, pledge, transfer, distribute or exploit any
portion of the Service without Clearwire's prior written consent.
13. SECURITY PRECAUTIONS. You are solely responsible for implementing sufficient
procedures and checkpoints to satisfy your particular requirements for accuracy
of data input and output, and for maintaining a means external to the Service
for the reconstruction of any lost data.
14. ILLEGAL AND FRAUDULENT ACTIVITY. You acknowledge and agree that Clearwire
may cooperate fully with investigations of possible illegal activity or
violations of systems or network security at other sites, including cooperating
with law enforcement authorities in the investigation of suspected criminal
violations. Subscribers who violate systems or network security may incur
criminal and/or civil liability. Clearwire may immediately suspend or terminate
Your Service if Clearwire suspects abuse or fraudulent use of the Service,
interference with our network, or violation of the AUP or Terms and Conditions,
and may notify the appropriate authorities if it reasonably believes that such
abuse or fraudulent use is in violation of applicable law. You must cooperate
with Clearwire in any fraud investigation and use any fraud prevention measures
that Clearwire prescribes. Your failure to provide reasonable cooperation may
result in your liability for all fraudulent usage.
15. VIOLATIONS OF AUP. In the event that you violate this AUP, Clearwire may,
without limitation, restrict your access to Clearwire's network, increase the
fees associated with your Service, including upgrading you to a higher class of
Service, or immediately suspend or terminate your Service. In the event of
termination of your Service, all applicable termination charges will apply.
Except as expressly provided herein, the rights and remedies of Clearwire are
cumulative and not exclusive of any rights or remedies that Clearwire may
otherwise have at law or in equity. Waiver of any violation of this AUP by
Clearwire shall not act as a waiver of any subsequent violation, nor shall it be
deemed to be a waiver of the underlying obligation or term. No failure or delay
by Clearwire in exercising any right or remedy hereunder will operate as a
BCE NEXXIA/CLEARWIRE MASTER SUPPLY AGREEMENT
67
waiver thereof, nor will any single or partial exercise of any right or remedy
preclude any other or further exercise thereof or the exercise of any other
right or remedy. You should read this AUP in conjunction with our Terms and
Conditions and our other Policies which are set forth on our website. Clearwire
has the right but not the obligation to monitor or restrict any uses of the
Service that Clearwire believes in its sole discretion violates this AUP, any
part of the Terms and Conditions, or applicable law. You are solely responsible
for all content that you transmit or receive utilizing the Service, and are
responsible for abuse of your account by others.
16. PRIVACY; MONITORING THE SERVICE, POLICY MANAGEMENT. Clearwire is under no
obligation to monitor the Service, but Clearwire may do so from time to time in
its discretion. Without limiting any other right of Clearwire under this AUP or
the Terms and Conditions, Clearwire may disclose any information regarding you
or your use of the Service for any reason and at its sole discretion in order to
satisfy applicable laws, regulations, orders, or governmental requests, or in
order to operate and deliver the Service in an efficient manner, or to otherwise
protect Clearwire's property or legal interests and those of its subscribers. To
protect its customers and its network Clearwire may, without limitation, block
and allow traffic types as we see fit at any time.
17. PERSONAL WEBSITES. Clearwire offers subscribers a certain amount of disk
space for hosting website(s) ("Web Space"), depending on the Service level
selected. Web Space is defined as a file system allocation on one or more of
Clearwire's publicly available web servers that is used for the sole purpose of
displaying or providing information to the public Internet community. You are
solely responsible for all information, data, text, software, music, sound,
photographs, graphics, video, messages, or other materials (the "Content")
contained within your Web Space, and are further responsible for obtaining any
third-party consent or permission required for the use thereof. Clearwire does
not inspect or otherwise participate in the posting of Content to its
subscribers' Web Space and, as such, does not guarantee the accuracy, integrity,
security, or quality of such Content. Clearwire disclaims any liability for the
security of any Content posted on the Web Space; all such Content is stored at
your risk. Such Web Space is available freely to anyone using the Internet.
Clearwire reserves the right at any time, and periodically, to modify or
discontinue, temporarily or permanently, your Web Space, with or without notice.
Clearwire may, in its sole discretion, terminate your Web Space, and remove any
Content contained on your Web Space for any reason, including, without
limitation, lack of use, or the reasonable belief that you have violated this
AUP. You acknowledge that Clearwire will not be liable to you or to any third
party for any modification, suspension, or discontinuance of your Web Space.
18. REPORTING VIOLATIONS. Clearwire requests that any person who becomes aware
of a violation of this AUP report the information to Clearwire at
▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇. If available, please provide the IP address used to commit
the alleged violation and the date and time of the alleged violation. Clearwire
may take any appropriate action as it deems fit in its sole discretion,
including, but not limited to, one or more of the following actions in response
to a report: issue a warning; suspend the subscriber's newsgroup posting
privileges; suspend the subscriber's account; terminate the subscriber's
account; ▇▇▇▇ the subscriber for administrative costs and/or reactivation
charges; bring appropriate legal action to enjoin violations and/or to collect
damages, if any, caused by violations; or take no action.
BCE NEXXIA/CLEARWIRE MASTER SUPPLY AGREEMENT
68
19. NOTICES AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT. Pursuant
to ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code, Section 512(c)(2) (as amended), notifications
of claimed copyright infringement should be sent to Service Provider's
Designated Agent. Note that inquiries relevant to the following procedure only
will receive a response.
20. REVISIONS; RESERVATION OF RIGHTS. CLEARWIRE reserves all rights including
the right to revise, amend, or modify this AUP or any other Policy at any time,
and any such revisions will be effective ten (10) days after posting on
Clearwire's website. You agree that your continued use of the Service after the
effective date of any such revision, amendment or modification will constitute
your acceptance thereof and you shall thereafter be bound by the terms of this
AUP, as revised, modified or amended. IT IS YOUR RESPONSIBILITY TO CHECK
CLEARWIRE'S WEBSITE REGULARLY, AS ALL OR ANY PART OF THIS AUP MAY CHANGE WITHOUT
NOTICE.
BCE NEXXIA/CLEARWIRE MASTER SUPPLY AGREEMENT
69
SCHEDULE 3
TERM SHEET - FINANCING
Lender: ▇▇▇▇ Canada or an Affiliate thereof ("Bell")
Borrower: Clearwire Corporation ("Clearwire")
Amount of Credit: US$10,000,000
Loan Purpose: The extension of credit is to fund capital expenses and
start-up costs associated with the deployment of VoIP
Services in the Territory.
Loan Structure: Bell will advance funds to Clearwire as requested, in an
amount not to exceed US$10,000,000.
Principal and interest shall be payable on the third
anniversary of the Effective Date.
Interest: Interest will be charged on the outstanding amount of the
loan at an interest rate of 7% per annum net of any and
all withholding taxes than may be exigible with respect
thereto (provided however that Bell will use commercially
reasonable efforts to offset such withholding taxes
against Canadian tax Bell has to pay and if Bell is
successful in doing so there will be a reduction of the
gross up for withholding taxes)
Prepayments: No prepayment penalties. Prepayments applied in inverse
order of loan payments.
Certain Covenants: The loan agreement will have customary terms, conditions
and covenants associated with a credit facility of the
type provided by BCE Nexxia to Clearwire. No disbursements
of loan proceeds shall be made until such time as a
definite loan agreement has been negotiated and entered
into by Clearwire and Bell
Security: Bell shall have a security interest in each item of
tangible personal property purchased by Clearwire and
located on a Canadian premise owned or controlled by Bell
or any of its Affiliates.
BCE NEXXIA/CLEARWIRE MASTER SUPPLY AGREEMENT
70
SCHEDULE 4
APPOINTMENTS
The initial appointees to the Executive Operating Committee are:
For BCE Nexxia: o ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
o ▇▇▇ ▇▇▇▇▇▇
For Clearwire: o Rob ▇▇▇▇▇▇▇▇
▇▇▇▇ Saw
The initial appointees to the Project Management Office are:
For BCE Nexxia: o ▇▇▇ ▇▇▇▇▇▇▇
For Clearwire: o ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
BCE NEXXIA/CLEARWIRE MASTER SUPPLY AGREEMENT
71
SCHEDULE 5
TAKE BACK SERVICE ELEMENTS
Take Back Service Elements relates to the right of Clearwire to assume
responsibility and accountability with respect to Service Elements which are
provided on a Dedicated basis, and as more particularly set forth below.
o POP Site hardware and software including:
o Session Boarder Controllers / RTPs,
o Firewall equipment,
o Media Gateways,
o Switching, cabling and related patch panels.
o Tier II / Tier III Support related to US POP hardware and software and /
or Main Site (Toronto/Montreal) network hardware and software
o US PSTN connectivity ordering and vendor management, including local
connectivity, long distance connectivity, 911 and LNP related services.
o US PSTN vendor selection for new market turn-up after PSTN connectivity
vendor management take back.
o Commissioning of US POP equipment with support from BCE Nexxia in the
scenario where BCE Nexxia continues to support MCS complex facilities
(servers or application servers) located in Canada.
o Main Site network hardware and software including:
o MCS complex facilities including CS2K and dedicated firewall, RTP,
Switching and Routing equipment, cabling and patch panels, as well
as Long Distance Media Gateways
o All related software licenses and RTUs (right to use) purchased
and dedicated to the Clearwire solution
o Main Site OSS / IT Systems;
o All computer hardware (i.e. servers) purchased on a Dedicated
basis to support the delivery of VOIP Services (i.e. 911 and
number portability)
o All custom developed software (specifically custom API software)
purchased or developed on a Dedicated basis to support the
delivery of Clearwire VoIP Services.
o All third party software purchased on a Dedicated basis that is
required to support delivery of VoIP Services
o With respect to the transfer or assignment of accountability and
responsibility to Clearwire, as it relates to the Take Back Service
Elements set forth in this Schedule 5, BCE Nexxia shall deliver to
Clearwire relevant support documentation, including without limitation,
the following documentation:
BCE NEXXIA/CLEARWIRE MASTER SUPPLY AGREEMENT
72
o All as-built documents and diagrams
o Operations training material for the POPs, main sites and dedicated
operational support systems.
o Configuration files for network elements as well as usernames and
passwords, installation, commissioning and maintenance guidelines.
o Network operations reports for performance monitoring, availability,
trouble tickets and capacity utilization.
o All development, test and implementation project plans related to take
back elements.
o Current and detailed billing and payment status for all Take Bake
Service Elements.
o All warranties for Take Service Elements provided on a Dedicated Basis.
o All licenses software and/or equipment being part of Take Back Service
Elements.
BCE NEXXIA/CLEARWIRE MASTER SUPPLY AGREEMENT
73
SCHEDULE 6
FUTURE SERVICES
o [***]
o [***]
o [***]
o [***]
o [***]
o [***]
o [***]
o [***]
o [***]
[*** Confidential Treatment Requested]
BCENEXXIA/CLEARWIRE MASTER SUPPLY AGREEMENT