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MARKET DEVELOPMENT AGREEMENT BETWEEN CLEARWIRE COMMUNICATIONS LLC AND INTEL CORPORATION

Advertising or Marketing Agreement

MARKET DEVELOPMENT AGREEMENT BETWEEN CLEARWIRE COMMUNICATIONS LLC AND INTEL CORPORATION | Document Parties: CLEARWIRE CORP /DE | CLEARWIRE COMMUNICATIONS LLC | EVP, Intel Corp | INTEL CORPORATION | Post Contract Management You are currently viewing:
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CLEARWIRE CORP /DE | CLEARWIRE COMMUNICATIONS LLC | EVP, Intel Corp | INTEL CORPORATION | Post Contract Management

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Title: MARKET DEVELOPMENT AGREEMENT BETWEEN CLEARWIRE COMMUNICATIONS LLC AND INTEL CORPORATION
Governing Law: Delaware     Date: 3/26/2009

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Exhibit 10.27

EXECUTION COPY

CONFIDENTIAL TREATMENT REQUESTED UNDER
17 C.F.R. SECTIONS 200.80(b)(4), 200.83 AND 230.24b-2.
[*****] INDICATES OMITTED MATERIAL THAT IS THE
SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST
FILED SEPARATELY WITH THE COMMISSION.
THE OMITTED MATERIAL HAS BEEN FILED
SEPARATELY WITH THE COMMISSION.

MARKET DEVELOPMENT AGREEMENT

BETWEEN

CLEARWIRE COMMUNICATIONS LLC

AND

INTEL CORPORATION

 


 

EXECUTION COPY

TABLE OF CONTENTS

SECTION REFERENCES

 

 

 

 

 

1. PREAMBLE

 

 

4

 

 

 

 

 

 

2. PURPOSE AND SCOPE

 

 

5

 

 

 

 

 

 

3. TERM AND MVNO OPTION

 

 

5

 

 

 

 

 

 

4. DEVICE EMBEDDING RATES, DISTRIBUTION INCENTIVES AND EMBEDDING SUPPORT ACTIVITIES

 

 

7

 

 

 

 

 

 

5. ACTIVATION FEES FOR EMBEDDED DEVICES

 

 

10

 

 

 

 

 

 

6. CLEARWIRE COMMUNICATIONS NETWORK DEPLOYMENT

 

 

11

 

 

 

 

 

 

7. REMEDIES FOR MISSED PERFORMANCE TARGETS

 

 

12

 

 

 

 

 

 

8. [*****]

 

 

13

 

 

 

 

 

 

9. DATABASE, TRACKING OF ACTIVATIONS AND AUDITS

 

 

14

 

 

 

 

 

 

10. MARKETING AND CO-BRANDING

 

 

16

 

 

 

 

 

 

11. [*****]

 

 

21

 

 

 

 

 

 

12. REVENUE SHARE

 

 

21

 

 

 

 

 

 

13. RESERVED

 

 

22

 

 

 

 

 

 

14. OPEN PATENT ALLIANCE

 

 

22

 

 

 

 

 

 

15. QUARTERLY MANAGEMENT REVIEW

 

 

23

 

 

 

 

 

 

16. REPORTS AND PAYMENTS

 

 

23

 

 

 

 

 

 

17. PRIOR AGREEMENTS

 

 

24

 

 

 

 

 

 

18. WIMAX DEVELOPMENT ROADMAP AND SUPPORT

 

 

25

 

 

 

 

 

 

19. RESERVED

 

 

27

 

 

 

 

 

 

20. WIMAX CHIPSET SOURCING TERMS

 

 

27

 

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21. COLLABORATION ON GLOBAL ADOPTION

 

 

27

 

 

 

 

 

 

22. CUSTOMER RELATIONS

 

 

28

 

 

 

 

 

 

23. DEMONSTRATION AND TEST ACCOUNTS

 

 

28

 

 

 

 

 

 

24. NETWORK DATA

 

 

29

 

 

 

 

 

 

25. INTELLECTUAL PROPERTY OWNERSHIP

 

 

29

 

 

 

 

 

 

26. DISCLAIMER OF WARRANTIES

 

 

30

 

 

 

 

 

 

27. GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS OF INTEL

 

 

30

 

 

 

 

 

 

28. GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS OF CLEARWIRE COMMUNICATIONS

 

 

31

 

 

 

 

 

 

29. CONFIDENTIAL INFORMATION

 

 

31

 

 

 

 

 

 

30. SEC FILING

 

 

33

 

 

 

 

 

 

31. INDEMNITY

 

 

34

 

 

 

 

 

 

32. LIMITATION OF LIABILITY

 

 

36

 

 

 

 

 

 

33. TERMINATION

 

 

36

 

 

 

 

 

 

34. REGULATORY REQUIREMENTS AND STANDARDS

 

 

42

 

 

 

 

 

 

35. COMPLIANCE WITH LAWS

 

 

42

 

 

 

 

 

 

36. MARKS

 

 

42

 

 

 

 

 

 

37. TAXES, DUTIES AND APPLICABLE TAX LAWS

 

 

43

 

 

 

 

 

 

38. FORCE MAJEURE

 

 

43

 

 

 

 

 

 

39. NOTICES

 

 

44

 

 

 

 

 

 

40. RESERVED

 

 

45

 

 

 

 

 

 

41. CHOICE OF LAW; DISPUTE RESOLUTION

 

 

45

 

 

 

 

 

 

42. SEVERABILITY

 

 

49

 

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43. SURVIVAL

 

 

49

 

 

 

 

 

 

44. BINDING EFFECT; ENTIRE AGREEMENT

 

 

50

 

 

 

 

 

 

45. AMENDMENTS; NO WAIVER

 

 

50

 

 

 

 

 

 

46. CONSTRUCTION AND INTERPRETATION

 

 

50

 

 

 

 

 

 

47. INCORPORATION BY REFERENCE

 

 

51

 

 

 

 

 

 

48. COUNTERPARTS; FAX SIGNATURES

 

 

51

 

INDEX OF APPENDICES

 

 

 

Appendix A

 

Definitions List

 

 

 

Appendix B

 

Intel MVNO Bundling Requirements

 

 

 

Appendix C

 

Method of Measuring POPs Coverage

 

 

 

Appendix D

 

[*****]

 

 

 

Appendix E

 

Technical Performance Requirements

 

 

 

Appendix F

 

Trademark License Agreement

 

 

 

Appendix G

 

RFI/RFP Provisions

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MARKET DEVELOPMENT AGREEMENT
BETWEEN
CLEARWIRE COMMUNICATIONS LLC
AND
INTEL CORPORATION

This Market Development Agreement (“ Agreement ”) dated November 28, 2008, is by and between Clearwire Communications LLC, a Delaware limited liability company (“ Clearwire Communications ”), having an office at 4400 Carillon Point, Kirkland, WA 98033 and Intel Corporation , (“Intel”) a Delaware corporation, having an office at 2200 Mission College Boulevard, Santa Clara, California, 95052. Clearwire Communications and Intel are each a “ Party ”, and collectively are referred to as the “ Parties ”. Initially capitalized terms not defined when first used are defined in Appendix A , “ Master Definitions List ”.

1. PREAMBLE

1.1 WHEREAS, Clearwire Communications, together with various subsidiaries and affiliated companies, owns, controls, and operates telecommunications systems and is licensed by the FCC to provide telecommunications and information services over the 2.5GHz spectrum in specified market segments;

1.2 WHEREAS, Clearwire Communications is in the process of building and deploying a wireless broadband 2.5 GHz telecommunications network in the United States using the WiMAX technology standard;

1.3 WHEREAS, Clearwire Communications desires that its Customers be able to use a variety of WiMAX enabled Devices on the Clearwire Communications Network;

1.4 WHEREAS, Intel has developed, and intends to develop, one or more WiMAX Chipsets suitable for embedding in Devices;

1.5 WHEREAS, Clearwire Communications and Intel wish to work together to market and promote WiMAX to consumers and original equipment manufacturers of Devices in an effort to accelerate deployment and adoption of WiMAX Devices and WiMAX Services in the United States;

1.6 WHEREAS, Sprint and Intel, and Clearwire and Intel, have each previously entered into separate agreements for the development and deployment of WiMAX-based chipsets and a WiMAX-based network;

1.7 WHEREAS, Clearwire Communications’ predecessor in interest and Intel are entering into the Transaction Agreement pursuant to which Intel will make an investment

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in Clearwire Communications at the Closing (as defined therein) thereunder, the occurrence of which is a condition precedent to the Parties entering into this Agreement.

NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

2. PURPOSE AND SCOPE

2.1 Under this Agreement, the Parties contemplate the good faith commitment by Clearwire Communications to deploy the Clearwire Communications Network in the United States and promote the use of Qualifying Intel Devices, and Intel’s good faith commitment to develop, market, sell, and support certain WiMAX Chipsets for use in Devices that may be used on the Clearwire Communications Network.

2.2 The objective of the Parties is to jointly accelerate deployment and adoption of WiMAX products and services in the United States across a broad array of devices for use on the Clearwire Communications Network, by the deployment of the Clearwire Communications Network and, subject to applicable law, by providing incentives to OEMs and ODMs to incorporate WiMAX Chipsets into Devices in commercial quantities as soon as possible. To that end, Clearwire Communications is making certain commitments to build out the Clearwire Communications Network, and Intel is making certain commitments to meet certain Embedding Rates. Intel and Clearwire Communications also, among other things, are agreeing to certain appropriate [*****] commitments, subject to applicable law, to accelerate the deployment and adoption of WiMAX products and services by OEMs and ODMs.

2.3 Both Parties understand that their efforts to accelerate deployment and adoption of WiMAX products and services are, among other things, dependent on competitive pricing of WiMAX Chipsets and WiMAX broadband Services that are sufficiently low to encourage OEMs and ODMs to incorporate WiMAX Chipsets into a large segment of OEM and ODM Device product lines and to encourage a large number of potential Clearwire Communications Customers to use WiMAX broadband Services on the Clearwire Communications Network.

3. TERM AND MVNO OPTION

3.1 The term of this Agreement will be from the date that this Agreement has been executed by both Parties (“ Effective Date ”) and for seven (7) years thereafter (the “ Initial Term ”). After the Initial Term, but only for so long as Intel (a) each year after the Initial Term continues to meet its Annual Spending Requirements, (b) each year after the Initial Term achieves an Embedding Rate of not less than [*****] (c) each year after Year Six achieves an Embedding Rate for [*****] that is greater than or equal to [*****] of the Embedding Rate that was achieved by Intel in the prior year for each such Device, provided that the Embedding Rate is never less than [*****] and (d) is not otherwise in material breach of this Agreement at the time of commencement of an Intel Renewal

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Term, then Intel may, at its sole option, extend this Agreement for successive one (1) year terms (each an “ Intel Renewal Period ”) up to a maximum of thirteen (13) times for a total potential term of twenty (20) years by giving written notice to Clearwire Communications of Intel’s election to renew at least ninety (90) calendar days before the expiration of the Initial Term or an Intel Renewal Period, as applicable. Notwithstanding the foregoing, if Intel has elected to extend this Agreement for the maximum period set forth in the preceding sentence, then beginning with the twentieth (20th) year, this Agreement will automatically renew for successive one (1) year renewal periods (each a “ Renewal Period ”), provided however that at the beginning of the twentieth (20th) year of this Agreement or no later than the first day of any subsequent year, either Party my terminate this Agreement by giving written notice to the other Party at least one (1) year prior to the commencement of the next Renewal Period (for example only, if this Agreement were extended by Intel through the twentieth (20th) year, Clearwire Communications may terminate this Agreement effective at the end of the twentieth (20th) year by giving written notice to Intel no later than the first day of the twentieth (20th) year). The Initial Term, together with any applicable Intel Renewal Periods and any applicable Renewal Periods, is referred to as the “ Term .”

3.2 3G MVNO Option. Concurrent with the execution of this Agreement and subject to the provisions of Section 3.3 below, the Parties contemplate that Intel will enter into a separate written agreement with a Sprint subsidiary pursuant to which Intel and the Sprint subsidiary will agree upon the terms and conditions under which Intel shall, if it so elects, have the right to become a Party (as defined therein) to that certain MVNO Support Agreement dated as of May 7, 2008, as amended, modified or supplemented from time to time (the “ 3G MVNO Agreement ”) among Sprint Spectrum; Comcast MVNO II, LLC; TWC Wireless, LLC; and BHN Spectrum Investments, LLC.

3.3 At any time during the Initial Term, Intel shall have the right to elect to become either (a) a Party (as defined therein) to that certain 4G MVNO Agreement dated as of the Effective Date, as amended, modified or supplemented from time to time (the “ 4G MVNO Agreement ”) among Clearwire Communications; Sprint Spectrum; Comcast MVNO II, LLC; TWC Wireless, LLC; and BHN Spectrum Investments, LLC (a “ 4G MVNO Election ”), or (b) a Party to both the 4G MVNO Agreement and the 3G MVNO Agreement (a “ Combined MVNO Election ”). Any 4G MVNO Election shall be on terms and conditions that are the same as those offered to any MSO Member who is a Party (as defined therein) to the 4G MVNO Agreement with Clearwire Communications, executed concurrently with this Agreement, and which will include an obligation on Intel to bundle additional services with WiMAX access service (whether such additional services are Intel branded or are provided through an arrangement with a third party provider of additional services) as provided in Appendix B to this Agreement (the “ Intel Bundled Services ”), subject to the following conditions:

3.3.1 At both the time of any 4G MVNO Election or Combined MVNO Election, and at the time a 4G MVNO Election or a Combined MVNO Election

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becomes effective, Intel must (a) be in compliance with its Intel MDF commitment in the calendar year just prior to when the 4G MVNO Election or Combined MVNO Election becomes effective in accordance with Section 10.1 , (b) have met its Embedding Rate commitment for the year just prior to when the 4G MVNO Election or Combined MVNO Election becomes effective for [*****] as provided in Table 4.1 , and (c) not be in material breach of this Agreement; and

3.3.2 If Intel makes a 4G MVNO Election or a Combined MVNO Election in the first three (3) years of this Agreement, then this Agreement shall terminate three (3) years after the Effective Date. If Intel makes a 4G MVNO Election or Combined MVNO Election more than three (3) years after the Effective Date, but before the end of the seventh year of this Agreement, then this Agreement shall terminate at the time such 4G MVNO Election or Combined MVNO Election becomes effective. In either case, if Intel exercises either a 4G MVNO Election or a Combined MVNO Election, it will do so in good faith by making commercially reasonable efforts to (a) develop, promote, and sell a WiMAX mobile broadband service, and (b) make available WiMAX chipsets to OEMs for, and work with such OEMs to accomplish, the embedding of WiMAX Chipsets in Intel Devices during the seven (7) year period immediately following the Effective Date.

3.4 Procedure for making a MVNO Election. If Intel makes a 4G MVNO Election, it will do so by delivery of the joinder agreement that is an exhibit under the 4G MVNO Agreement. If Intel makes a Combined MVNO Election, it will do so by delivery of the joinder agreement that is an exhibit under both the 3G MVNO Agreement and the 4G MVNO Agreement. Prior to execution of a joinder agreement, Clearwire Communications will provide to Intel copies of amendments, if any, to the 3G MVNO Agreement and 4G MVNO Agreements.

3.5 Notwithstanding anything to the contrary in this Agreement or in the 4G MVNO Agreement between the Parties, and notwithstanding anything to the contrary in the 3G MVNO Agreement between Intel and a Sprint subsidiary, if Intel is in material breach of this Agreement and/or in material breach of any 4G MVNO Agreement between the Parties, or is in material breach of any 3G MVNO Agreement between Intel and a Sprint Subsidiary, and has not cured such material breach as provided for in this Agreement for breaches related to this Agreement or any such 4G MVNO Agreement for breaches related to such 4G MVNO Agreement or any such 3G MVNO Agreement, then Clearwire Communications may terminate this Agreement and the 4G MVNO Agreement (solely with respect to Intel and not as to any other party to such agreements) between the Parties by giving written notice of termination to Intel.

4.

 

DEVICE EMBEDDING RATES, DISTRIBUTION INCENTIVES AND

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EMBEDDING SUPPORT ACTIVITIES

4.1 Intel Device Commitments.

4.1.1 Intel shall achieve the Embedding Rate for Intel-Based Devices as set forth in Table 4.1 and, if Intel elects to extend this Agreement under Section 3.1 , in Section 4.1.2 below:

TABLE 4.1

Intel Embedding Rate Commitment for [*****]
Sold to [*****]
[*****]

4.1.2 Notwithstanding anything to the contrary, during the Initial Term, [*****].

4.2 Annual Reviews and Embedding Rate Targets. Within forty-five (45) days after June 30 of each year as part of the Parties’ annual goal setting process, Intel shall translate the Embedding Rates specified above into [*****] for the forthcoming year. Intel shall use commercially reasonable efforts to obtain relevant sales data from its OEMs and their respective distributors in order to determine the number of [*****] that are sold to [*****] each year. If Intel is, after using commercially reasonable efforts, unable to obtain such data, the Parties shall meet and confer in good faith and shall agree on a mutually acceptable method of determining the number of [*****] that are sold to [*****] each year.

4.3 [*****]. Except as otherwise provided in this Agreement, subject to applicable law, [*****] Clearwire Communications shall not directly or indirectly provide [*****].

4.4 [*****].

4.5 Design-Win and Design-In Engineering and Validation Support. During the Term, Intel shall provide and perform appropriate and necessary Design-Win and Design-In engineering and validation support for such activities as thermal and electrical testing, layout, antenna specification design and placement, and lab/field testing to ensure that Qualifying [*****] are available for use, and function properly, on the Clearwire Communications Network.

4.6 Interoperability Testing. As part of its support of its OEM and ODM customers and certain other third parties, Intel shall support and coordinate IOT on the Clearwire Communications Network to ensure Qualifying Intel Devices, infrastructure equipment, and services interoperate pursuant to a mutually agreed upon IOT schedule, which IOT schedule the Parties will use good faith efforts to accomplish promptly after execution of

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this Agreement. Clearwire Communications shall coordinate with Intel to facilitate any required IOT with the OEMs and ODMs that manufacture Qualifying [*****] that are intended to operate on the Clearwire Communications Network, and upon Intel’s reasonable request, Clearwire Communications shall make its personnel reasonably available to discuss the Clearwire Communications Network with OEMs that manufacture Qualifying [*****] in an effort to reasonably assist Intel in meeting its Embedding Rate commitments.

4.7 Automatic Updates. Intel shall make commercially reasonable efforts to implement and make available to consumers one or more systems that will provide automatic software updates including without limitation new releases, correction patches, bug fixes and promotional offers, to Devices containing Qualifying WiMAX Chipsets.

4.8 Device Certification.

4.8.1 Streamlined Certification Requirements. Certification requirements for Devices on the Clearwire Communications Network shall conform to the certification standards established by the WiMAX Forum and any additional reasonable streamlined certification requirements established by Clearwire Communications. If such certification requirements require access to Clearwire Communications facilities and/or personnel, Clearwire Communications shall provide the same level and scope of access to Intel or Intel’s designated third party engineering partners (subject to execution of an appropriate non-disclosure agreement by such third party engineering partners), as Clearwire Communications provides to other parties seeking certification. Access shall not be unreasonably withheld or delayed. Clearwire Communications shall make available to Intel or its designated third party engineering partners estimated schedules and timelines for the streamlined certification process to support the development of product launch timelines.

4.8.2 The certification requirements and Clearwire Communications’ Quarterly Services Roadmap are among other things Clearwire Communications anticipates discussing with its MSO Members during the Forum discussions between such parties. Clearwire Communications shall use good faith reasonable efforts to include provisions in its MVNO agreements that afford Intel the opportunity to participate in all Forum discussions between Clearwire Communications and the MSO Members. If Intel is unable to participate as described herein, Clearwire Communications will provide a reasonably detailed update to Intel of Clearwire Communications’ Quarterly Services Roadmap after each Forum meeting, unless such information is deemed confidential by the members of the Forum.

4.8.3 The Parties will confer in good faith to discuss support and certification for Non-Standard Network Service features, but Intel shall not be obligated to support any such non-standard features.

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4.8.4 Intel will be responsible for the certification identified in Section 4.8.1 , including any associated costs incurred by Intel directly and reasonable associated direct costs of Clearwire Communications, if requested by Clearwire Communications, for any Qualifying Intel Devices on the Clearwire Communications Network (“ Certification Costs For Intel Qualifying Devices ”) consistent with the certification process described in this Agreement provided however that such Certification Costs For Intel Qualifying Devices are no greater than any other cost reimbursement Clearwire Communications receives from any other third party for such certification process. In the event Clearwire Communications requests Intel to reimburse Clearwire Communications for such Certification Costs For Intel Qualifying Devices, Clearwire Communications will first provide Intel with written documentation estimating such Clearwire Communications Certification Costs For Intel Qualifying Devices and upon completion of such certification all final documentation specifying in detail the actual Clearwire Communications Certification Costs For Intel Qualifying Devices.

5. ACTIVATION FEES FOR EMBEDDED DEVICES

5.1 Payments to Intel. Commencing on the Start Date and for the period specified in Table 5.1 below, as consideration for Intel achieving the Embedding Rates set forth in Section 4.1 above, Clearwire Communications shall pay to Intel Embedded Device Activation Fees as set forth in Table 5.1 below, subject to any adjustments, for each Qualifying Intel Device Activated on the Clearwire Communications Network:

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TABLE 5.1

Intel Embedded Device Activation Fees

[*****]

5.2 [*****]. Subject to Section 5.2.1. , Embedded Device Activation Fees shall [*****].

5.2.1 [*****]. Notwithstanding the provisions of Section 5.2 , [*****]:

[*****]

5.2.2 [*****], then in order to determine whether [*****] in Section 5.2 above [*****] under Section 5.1 , [*****] as the basis for calculating the amount of [*****] referenced in Section 5.2 , and the resulting amount will be used to determine if [*****]. Unless the Parties agree otherwise, the method of calculation in this Section 5.2.2 shall not apply to [*****] and the provisions of Section 5.2 shall be used to determine if [*****].

5.3 [*****]. If in any year (as measured on the first day of July for the preceding twelve (12) month period) [*****]. For the purposes of this Section 5.3 , [*****] as provided in this Section 5.3 , then within thirty (30) calendar days after the [*****] in this Section 5.3 . For the avoidance of doubt, the Parties acknowledge that the [*****] under this Agreement.

5.4 [*****]. Clearwire Communications will pay to Intel the Embedded Device Activation Fees due in accordance with the payment terms specified in Section 16.3 . Subject to Section 5.2 , the Parties agree that [*****].

5.5 Clearwire Communications and Intel shall engage in good faith discussions regarding Embedded Device Activation Fees and/or other joint activities to agree on [*****]. Notwithstanding anything to the contrary in this Agreement, until the Parties have (a) agreed that a particular [*****] and (b) agreed upon deliverables specific to those agreed upon [*****]. Nothing herein shall obligate either Party to enter into an agreement concerning [*****].

6. CLEARWIRE COMMUNICATIONS NETWORK DEPLOYMENT

6.1 Clearwire Communications shall achieve the POPs Coverage set forth in Table

6.1 below:

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TABLE 6.1

Clearwire Communications POPs Coverage Commitment

 

 

 

 

 

 

 

POPs Coverage to be Achieved by Clearwire

Time Period

 

Communications

[*****]

 

 

[*****]

 

6.2 Network Coverage Service Level. Solely for the purposes of this Section 6 and for no other purpose, Clearwire Communications’ POPs Coverage shall be determined by the methodology set forth on Appendix C to this Agreement.

6.3 Notwithstanding anything to the contrary in this Agreement, if Clearwire Communications has (or in the case where December 31, 2008 is prior to the Effective Date, then if Clearwire and Sprint acting independently have in the aggregate) [*****]. If Clearwire Communications (or in the case where December 31, 2008 is prior to the Effective Date, then if Clearwire and Sprint acting independently but in the aggregate) [*****]. Notwithstanding anything to the contrary in this Agreement, [*****]. In the event December 31, 2008 is after the Effective Date, Clearwire Communications will within thirty (30) days thereafter provide Intel with written notice as to the total number of POPs Coverage as of December 31, 2008 in major metropolitan service areas in the United States. Clearwire and Sprint each have separately acknowledged in a written agreement that they will provide their respective POPs Coverage numbers, as of December 31, 2008, to Intel.

7. REMEDIES FOR MISSED PERFORMANCE TARGETS

7.1 RESERVED

7.2 Except as otherwise provided in Section 7.3 , the remedies specified in the following Table 7.2 are in addition to any other remedies the respective Parties have in the event either Intel fails to meet its Embedding Rate targets and/or Clearwire Communications fails to meet its POPs Coverage targets.

TABLE 7.2

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Remedies for Missed Performance Targets

[*****]

7.3 Sole and Exclusive Remedies. Notwithstanding the provisions of Section 7.2 , in the event that Intel uses commercially reasonable efforts to [*****] and still fails to do so and/or Clearwire Communications uses commercially reasonable efforts to meet the POPs Coverage targets and still fails to do so, then the respective remedies set forth in Table 7.2 shall be the other Party’s sole and exclusive remedy with respect to the [*****]. In the event that Intel elects to renew this Agreement after the Initial Term as provided for in Section 3.1 above and uses commercially reasonable efforts to [*****] or any subsequent applicable yearly period and still fails to do so, the sole remedy of Clearwire Communications shall be that Intel shall not have any right under Section 3.1  to extend the Term for any additional Intel Renewal Periods.

8. [*****]

8.1 OEM/ODM Incentives. Subject to applicable law, as between Intel and Clearwire Communications [*****] shall be responsible for providing necessary and appropriate engineering support, technical support and commercially reasonable financial incentives to OEMs and ODMs in order to achieve the Embedding Rates specified in Section 4.1 of this Agreement for [*****]. In order to (a) facilitate accelerated embedding of Qualifying WiMAX Chipsets in [*****] and (b) further the Parties’ mutual goal to accelerate the deployment of a leading edge wireless broadband network with related services, [*****] shall, subject to applicable law, act as [*****] with respect to providing commercially reasonable [*****] including conducting all [*****] related thereto, and [*****] shall provide such commercially reasonable [*****] shall have no obligation or responsibility to provide [*****] under this Agreement to [*****] with respect to Embedding Rates or the [*****]. For the avoidance of doubt, the Parties hereby acknowledge and agree that [*****] the Embedded Device Activation Fees payable under this Agreement is [*****] obligations under Section 4.1 of this Agreement, and [*****] over the duration of the Term. Notwithstanding the foregoing, nothing herein shall restrict or otherwise prevent [*****] provided that such activities are not designed to circumvent the provisions of this Section 8.1 , or Section 4.3 .

8.2 OEM/ODM Promotional Activities. If Clearwire Communications desires that Intel pursue and engage in reasonable specific promotions or other like activities with OEMs and/or ODMs to improve Embedding Rates or Activation Rates, Clearwire Communications may provide reasonable suggestions in writing to Intel, and Intel shall use commercially reasonable efforts to implement such suggestions in a timely manner.

8.3 Retail Channels. Except as otherwise provided in this Agreement, Intel shall have

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no responsibility for providing appropriate incentives, financial or otherwise, to retail or other sales channels for the promotion of WiMAX related products and services.

8.4 Customer Care. Clearwire Communications shall use commercially reasonable efforts to (a) coordinate with OEMs to establish a customer care process, subject in all instances to Clearwire Communications’ policies and procedures for customer care, pursuant to which OEMs may redirect customers to Clearwire Communications to resolve performance issues concerning the Clearwire Communications Network, (b) assist customers in resolving verified performance issues with the Clearwire Communications Network, and (c) include a disclaimer of liability notice to end users with respect to Clearwire Communications Network performance for Clearwire Communications, OEMs and Intel.

9. DATABASE, TRACKING OF ACTIVATIONS AND AUDITS

9.1 Subject to applicable law, Intel or a third party retained by Intel shall (a) use commercially reasonable efforts to develop, maintain and operate a database, along with appropriate accounting software, to track and correlate sales, shipments and activations of Qualifying Intel Devices, [*****], and Intel-based MIDs (the “ Activation Database ”); and (b) administer, maintain and operate the Activation Database to track and settle any financial incentives owed to its OEM and/or ODM customers. Clearwire Communications and Intel shall cooperate in good faith in an effort to appropriately integrate Intel’s Activation Database with Clearwire Communications’ network operating systems to ensure automatic, cost-effective, and timely reconciliation of accounts.

9.2 Audits. Intel and Clearwire Communications will each maintain complete and accurate records of (a) all amounts owed, all Marketing Tonnage and payments made, by Intel and Clearwire Communications hereunder, and (b) all data concerning POPs Coverage, Device volumes and activations, and any other data that is reasonably related to the scope and purpose of, or reasonably necessary to determine compliance with, this Agreement, all in accordance with U.S. generally accepted accounting principles. Intel and Clearwire Communications will each retain such records for a period of three (3) years from the date of expiration or termination of this Agreement. Subject to applicable law, Intel and Clearwire Communications agree to provide reasonable supporting documentation to each other concerning any discrepancies within thirty (30) calendar days after receipt of written notification of such discrepancies.

9.2.1 Upon at least thirty (30) calendar days’ prior written notice, either Party may, at its own expense, retain an independent third party auditing firm to conduct an audit of the other Party’s relevant records and documents for the purpose of determining compliance with the terms of this Agreement (an “ Audit ”). A Party may conduct such Audit only once per year during the Term at the audited Party’s business offices during the audited Party’s normal business

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hours at such facility and in such a manner as to not interfere with the audited Party’s normal business operations. Notwithstanding the foregoing, the Parties shall utilize commercially reasonable efforts to mutually agree on timing of any such Audit and shall use reasonable good faith efforts to avoid conducting such Audit during a Party’s year end and quarterly financial preparation and internal audit processes. The auditing firm (the “ Auditor ”) will be required to execute a confidentiality agreement, and the data utilized for the independent Audit and the results of the independent Audit will be confidential and will be disclosed only to Clearwire Communications and Intel, except in the case of CPNI which shall not be disclosed to Intel. The Auditor shall discuss its preliminary findings with Intel and Clearwire Communications representatives prior to reducing its finding to writing and afford both Intel and Clearwire Communications an opportunity at such meeting and for at least three (3) business days thereafter to provide additional information or suggest alternate views of the reported results. Thereafter, the Auditor who conducts the examination shall simultaneously provide Intel and Clearwire Communications with a copy of the Auditor’s written report. In the case of an Audit by Intel of Clearwire Communications’ records, the Auditor shall, under the terms of its non-disclosure agreement with Clearwire Communications, be expressly prohibited from sharing any CPNI with Intel. Intel shall use reasonable efforts to also instruct the Auditor not to share any CPNI with Intel. CPNI shall constitute the Confidential Information of Clearwire Communications. If Intel comes into possession of any CPNI it will promptly return to Clearwire Communications, or at the request of Clearwire Communications destroy, such CPNI. Notwithstanding anything to the contrary, if Intel makes a 4G MVNO Election pursuant to this Agreement, at the time of such election the Parties shall meet in confer in good faith to mutually agree on (a) certain restrictions that will be placed on competitively sensitive data, and (b) joint instructions to the Auditor for the handling and use of competitively sensitive data, all of which shall be subject to applicable law.

9.2.2 In the event that the results of such independent Audit shows that a Party has not materially complied with the terms of this Agreement, such Party shall promptly commence reasonable efforts to cure, and shall cure, the material non-compliance within thirty (30) calendar days after receipt of the Auditor’s written report containing such results.

9.2.3 In the event that a Party has, to the extent such Party is obligated to pay any amounts to or for the benefit of the other Party, underpaid any amounts, the Party shall, within thirty (30) days after completion of the Audit, pay such amounts that are due and owing.

9.2.4 If any of the situations described in Section 9.2.2 or Section 9.2.3 occurs, notwithstanding anything to the contrary in this Agreement, in addition to any other remedies under this Agreement that are available to the Party conducting the

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Audit, the audited Party will reimburse the auditing Party for the reasonable out-of-pocket costs of the Audit.

10. MARKETING AND CO-BRANDING

10.1 Intel Market Development Funds. Except as expressly provided in this Section 10 , during the seven (7) year period commencing on the first day of [*****], Intel shall deliver into the United States marketplace not less than [*****] worth of Marketing Tonnage (the “ Intel MDF ”) through [*****] . Intel shall deliver not less than [*****] of the Intel MDF during the [*****] following the Start Date [*****] of the Intel MDF during the remaining [*****] consistent with generally acceptable [*****]. The Intel MDF shall be solely for use in connection with [*****] be spent on programs and activities as reasonably determined by Intel [*****] will include marketing funds spent on [*****] promotional activities as specified in this Section 10 . [*****].

10.1.1 [*****] Clearwire Communications shall provide Intel with a written summary of the cumulative Access Revenues received by Clearwire Communications from [*****]. The summary shall identify what percentage of Access Revenues [*****]. If at the end of [*****] total amount of Access Revenue received by Clearwire Communications [*****] If at the end of [*****] the total amount of Access Revenue received by Clearwire Communications [*****] obligated to deliver into [*****] marketplace in the form of Marketing Tonnage [*****] To the extent that Intel has, at the end of [*****].

10.2 Marketing Program Reviews. As part of the quarterly review specified in Section 15 of this Agreement, the Parties shall discuss the effectiveness of the marketing programs and activities contemplated under this Agreement. If Clearwire Communications desires that Intel pursue and engage in reasonable specific promotions or other activities, Clearwire Communications may provide reasonable marketing and/or reasonable co-branding suggestions in writing to Intel, and Intel shall use commercially reasonable efforts to implement such suggestions in a timely manner. Upon request by Clearwire Communications, Intel shall provide a written summary, in a form to be mutually agreed upon, of its efforts to implement such suggestions.

10.3 Brand Association and Co-Branding. Prior to the first day of Year One, Intel shall commence and complete development of the Co-Branding Construct to promote the Clearwire Communications Network and the Clearwire Communications brand in close association with Intel’s own brand(s). Intel shall keep Clearwire Communications reasonably apprised of Intel’s progress in developing the Co-Branding Construct. Each Party will license to the other Party its Marks necessary for the Co-Branding Construct in accordance with the Trademark License in Appendix F attached hereto. The Co-Branding Construct will be prominently featured in Intel’s own direct advertising

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campaigns in accordance with the Trademark License in Appendix F , and made available for license by Intel, under Intel’s standard license terms, to OEMs and Intel’s other channel partners that [*****] program or other Intel programs for use in their marketing efforts to promote Qualifying Intel Devices that work on the Clearwire Communications Network and where appropriate to support the [*****] efforts of third parties for [*****]. Conceptual drawings of the Co-Branding Construct are set forth in Appendix D to this Agreement, and the final Co-Branding Construct shall be similar to the conceptual drawings contained in Appendix D . Upon completion of the Co-Branding Construct, Intel will provide Clearwire Communications with replacements for the conceptual drawings contained in Appendix D , and these will constitute the Co-Branding Construct. If requested by Clearwire Communications, Intel will meet and confer in good faith to discuss licensing of the Co-Branding Construct or a substantially similar co-branding construct to Clearwire Communications third party Resellers, MVNO Partners, and/or Affiliates.

10.4 Licensing Agreement. Attached to this Agreement as Appendix F is a separate royalty-free trademark license agreement (the “ Trademark License ”) between Intel and Clearwire Communications, which shall be executed concurrent with this Agreement, and which shall remain valid for the Term, unless earlier terminated pursuant to its own terms. Notwithstanding anything to the contrary in this Agreement, the terms and conditions of the Trademark License shall govern the Parties’ respective rights, duties and obligations with respect to each Party’s Marks under this Agreement. In the event of a conflict between the terms of this Agreement and the terms of the Trademark License, the terms of the Trademark License shall govern but only to the extent necessary to resolve the conflict.

10.5 Marketing and Brand Strategy. No later than the first day of [*****], Intel shall commence [*****] of its WiMAX solutions in the [*****] using the final Co-Branding Construct (subject to any pre-existing contractual obligations to provide advance notice under Intel’s [*****]), incorporate the Co-Branding Construct into Intel’s [*****], and permit the Co-Branding Construct [*****]. The Intel MDF shall be used to [*****] as described in more detail in this Section 10 , all of which shall be at Intel’s reasonable choosing, except as otherwise provided in Section 10.6 , and which may include some but not necessarily all, of the marketing activities or environments described in this Section 10 .

10.5.1 Determination of Appropriate Activities. Intel shall, through its customary brand marketing and brand strategy development and approval process, select which marketing and branding activities or environments would be most appropriate in Intel’s reasonable opinion to include in the final marketing and brand strategy (or any specific marketing campaign) for promotion of the Co-Branding Construct. During such process Intel shall obtain Clearwire Communications’ input related to such marketing and brand strategy, but notwithstanding anything to the contrary in this Agreement Intel shall have the right in its reasonable discretion to determine the specific marketing and branding

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programs and/or environments related to Intel’s promotion of the Co-Branding Construct and its implementation details, except as otherwise provided in Section 10.6 .

10.6 Minimum Enabling Requirements. Notwithstanding the provisions of Section 10.5 , during the Term, Intel shall perform all of the marketing and co-branding activities set forth in this Section 10.6 , which activities shall collectively be the minimum enabling requirements (the “ Minimum Enabling Requirements ”) under this Agreement. Intel shall have the right to propose in good faith reasonable alternatives to the Minimum Enabling Requirements. Clearwire Communications shall review such proposals in good faith and may approve or deny such request, provided however that Clearwire Communications shall not unreasonably refuse to approve a proposed alternative. [*****].

10.6.1 [*****]

10.6.2 [*****]

10.6.3 [*****]

10.6.4 [*****]

10.6.5 [*****]

10.7 Additional Marketing Environments. Intel’s marketing campaigns may include a wide range of possible marketing environments at Intel’s reasonable choosing. For purposes of illustration only the following are descriptions of possible marketing environments and the implementation processes, and do not represent a commitment by Intel to pursue or implement any particular environment(s) unless expressly provided for in the final Intel marketing and brand strategy for promotion of the Co-Branding Construct.

10.7.1 Enterprise Sales Materials. Intel has relationships within its management team that call on senior technology staff of Fortune 1000 companies in the United States. If applicable Intel will use commercially reasonable efforts to integrate WiMAX and Clearwire Communications specific educational and promotional messages into Intel’s materials for use with this constituency as appropriate. Subject to applicable law, Intel will similarly fund as appropriate and commercially reasonable the integration of such messages into the enterprise sales efforts of its OEM and other partners who promote WiMAX and call on the Fortune 1000 companies.

10.7.2 Retail Point of Purchase Displays. This category consists of in-store merchandising displays and literature applicable to the Co-Branding Construct designed to educate and assist in the purchase decision of the buyer at the point of purchase so that the buyer understands the benefits of and ultimately selects systems that support the Services. If applicable Intel will integrate the Co-Branding Construct into its own Point of Purchase display and through its indirect marketing programs fund the inclusion of the Co-Branding Construct in the Point of Purchase displays of OEMs as appropriate.

10.7.3 Retail Merchandising & Circulars. This category consists of advertising

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vehicles created by retailers for promotion of sales and merchandise. If applicable, Intel will integrate the Co-Branding Construct in its own efforts to support its platforms in these vehicles and will, through its indirect marketing programs, fund the OEMs to do the same.

10.7.4 Web Ads. If applicable, Intel will integrate the Co-Branding Construct into its direct online advertising as appropriate and will similarly fund through its indirect marketing programs the integration of the Co-Branding Construct into the online advertising of OEMs for their relevant platforms.

10.7.5 Print Advertising. If applicable, Intel will integrate the Co-Branding Construct into its direct print advertising as appropriate and will similarly fund through its indirect marketing programs the integration of the Co-Branding Construct into the print advertising of OEMs for their relevant platforms.

10.7.6 Television Advertisements. If applicable, Intel will integrate the Co-Branding Construct into its direct television advertising as appropriate and would similarly fund through its indirect marketing programs the integration of the Co-Branding Construct into the television advertising of OEMs for their relevant platforms.

10.7.7 Outdoor & Environmental. If applicable, Intel will integrate the Co-Branding Construct into its direct marketing outdoor advertising as appropriate and will similarly fund through its indirect marketing programs the integration of the Co-Branding Construct into the outdoor advertising and other event marketing of OEMs for their relevant platforms.

10.7.8 Trade Shows & Events. If applicable, Intel will integrate the Co-Branding Construct into its direct trade show and events efforts as appropriate and will similarly fund consistent with the “Intel Inside ® ” program the integration of the Co-Branding Construct into the print advertising of OEMs for their relevant platforms.

10.7.9 Promotions & Public Relations. If applicable, Intel will promote the Clearwire Communications Network through public events such as the Consumer Electronics Show and the Intel Developer Forum promoting Qualifying Intel Devices. Within the context of Intel Inside program and other channel marketing programs, if applicable, Intel will make available and promote marketing programs that encourage its customer and channel partners to promote the Services in conjunction with Qualifying Intel Devices. The common purpose of these marketing efforts is to promote the Clearwire Communications Network and Qualifying Intel Devices for use on the Clearwire Communications Network. If applicable, Intel commits to participate as the major launch partner in the top

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Clearwire Communications market launches and likewise, subject to applicable law, create appropriate incentives for participation of Intel’s marketing partners. Subject to applicable law, Intel will continue to make available its cooperative marketing programs to allow its partners to continue to fund and promote the Clearwire Communications Network service using co-op funds and Intel will continue to feature the Co-Branding Construct in its own marketing efforts for as long it is commercially reasonable to do so. Other than industry or technical communications, such as standards work, Intel will use commercially reasonable efforts to refer to Clearwire Communications by name if appropriate in WiMAX-related marketing promotions and public relations in the United States as reasonably determined by Intel.

10.7.10 [*****].

10.7.11 Bezel Promotion. Where applicable, a temporary sticker applied at the point of manufacture of [*****] that is designed to call the user’s attention to the Clearwire Communications Network feature included in the Intel-based Performance Notebook and to encourage the user to sign up for the Services. Consistent with industry practice this sticker will be prominently and visibly positioned on the “palm rest” so that it was visible to shoppers in point of purchase system displays and to the user at the time of use.

10.7.12 Out of the Box Experience. Upon first use, the user is generally walked through an interactive set up process that will include signing up for applications and services. If applicable, Intel will work with, and use commercially reasonable efforts to [*****].

10.8 Remedies Pertaining to Minimum Enabling Requirements. Upon Clearwire Communications’ request, Intel shall document its compliance with the provisions of Section 10.6 and Section 10.7 . During the quarterly management review meetings as proscribed by Section 15 , Intel will provide a status report to Clearwire Communications of Intel’s progress in fulfilling its obligations under Section 10.6 . Clearwire Communications may, in accordance with Section 9.2 , perform an Audit of Intel for the purpose of determining Intel’s compliance with Section 10.6 . If Intel fails to fulfill its Minimum Enabling Requirements set forth in Section 10.6 for any particular Qualifying Intel Device, then, in addition to any other Clearwire Communications remedies, the Embedded Device Activation Fee shall be reduced by [*****], provided however that if Intel uses commercially reasonable efforts to meet the [*****].

10.9 General Marketing Activities. Subject to Section 29.8 , during the Term, Intel will plan and coordinate public relations activities with Clearwire Communications related to the Clearwire Communications Network and the launch of Intel Devices with Clearwire Communications. The Parties will use commercially reasonable efforts to ensure that a

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consistent, mutually agreeable message is communicated to the general public with respect to the marketing of WiMAX technology and services, provided however nothing herein shall prevent a Party from engaging in any specific marketing activity nor shall either Party be obligated to obtain the other Party’s prior approval for its own good faith marketing activities related to WiMAX.

10.10 [*****].

11. [*****]

11.1[*****]

11.1.1[*****]

11.1.2[*****]

11.1.3[*****]

11.2[*****]

11.2.1[*****]

11.2.2[*****]

11.3 No Restriction on Certain Practices. Notwithstanding anything to the contrary in this Agreement, nothing herein shall prevent Intel from (a) continuing its current business and marketing practices as to Intel’s OEM and channel customers, including Intel’s [*****] and the joint marketing program component thereof, [*****], and (b) co-marketing related to WiMAX in a generic manner [*****].

11.4 [*****]

11.4.1 [*****]

11.4.2 [*****]

11.5 [*****]

11.5.1 Notwithstanding anything to the contrary in this Agreement, other than as expressly provided for in Section 11.5.2 , and subject to applicable law, [*****].

11.5.2 [*****]

11.5.3 [*****]  Clearwire Communications will within thirty (30) days of receipt of such notice provide Intel with written assurances specifying Clearwire Communications’ compliance with this Section.  Should Clearwire Communications fail to respond to Intel’s written notice, Clearwire Communications shall be deemed in breach of this Section and Intel will be free to seek specific performance as specified in Section 11.5.4 below.

 

11.5.4 Clearwire Communications agrees that monetary damages alone would be an insufficient remedy to Intel for any breach of this Section 11.5.4 and hereby acknowledges, agrees and consents to the entering of an order of appropriate equitable relief including but not limited to an order granting specific performance to compel Clearwire Communications to comply with the obligations of this Section 11.5.4 .  The Parties hereby agree that in any action or proceeding brought by Intel under this Section 11.5.4 , the initial burden of proof shall be on Clearwire Communications to establish that Intel is not entitled to the issuance of an injunction. Any such equitable relief shall not limit any other remedy to which Intel may be entitled at law or in equity.

12. REVENUE SHARE

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12.1 Access Revenues. Intel shall receive a portion of Access Revenues as described below.

12.1.1 On a calendar quarter basis, Clearwire Communications shall pay to Intel [*****] of Access Revenues received by Clearwire Communications from [*****]. Notwithstanding anything to the contrary in this Agreement, Clearwire Communications’ obligation to pay [*****].

12.1.2 On a calendar quarter basis, Clearwire Communications shall pay to Intel [*****] Access Revenues received by Clearwire Communications [*****]. Notwithstanding anything to the contrary in this Agreement, Clearwire Communications’ obligation to pay [*****].

12.1.3 [*****]

12.1.4 [*****]

12.2 [*****]

12.3 [*****] Notwithstanding anything to the contrary in this Agreement, until the Parties have [*****].

12.4 [*****]

13. RESERVED

14. OPEN PATENT ALLIANCE

14.1 Open Patent Alliance. Intel and other parties in the technology and telecommunications industries are working toward the development of the OPA with the goal of increasing competition by supporting the widespread implementation, adoption and use of WIMAX and fostering a pro-competitive intellectual property landscape.

14.2 Subject to applicable law, Intel will work with the OPA to facilitate Clearwire Communications joining the OPA as a founding LLC Member and Clearwire Communications agrees to join the OPA as a founding LLC Member in accordance with all applicable membership requirements, including the payment of an initial capital contribution of up to [*****] and meeting calls for additional capital contributions of up to [*****] per year in each of the following four (4) years.  The foregoing obligation is contingent upon the following:

14.2.1 The OPA is formed with a minimum of four (4) founding LLC Members (including Intel and Clearwire Communications) as of the Closing Date;

14.2.2 Initial, and any additional, capital contribution payments by Clearwire Communications are no greater than amounts that any other founding LLC Member is required or requested to pay under the membership agreement; and

14.2.3 The OPA is formed, operates and continues to operate in a manner consistent with the Guiding Principles of the OPA.

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14.3 During the Term, Clearwire Communications agrees to use OPA patent pool participation as a major selection criteria in choosing its equipment and device vendors. To the extent Clearwire Communications’ existing vendors as of the Start Date are not members of the OPA, Clearwire Communications will encourage such vendors to join the OPA. In furtherance of this commitment, Clearwire Communications agrees to use substantially similar language in its WiMAX-related Requests for Information (RFI) and/or Requests for Proposals (RFP) as provided in Appendix G to this Agreement.

15. QUARTERLY MANAGEMENT REVIEW

15.1 Quarterly Management Reviews. During the Term, once per calendar quarter at a date, time and place to be mutually agreed to, representatives of senior management of both Parties shall meet in good faith to review progress and provide their respective updates toward the mutual business objectives contained in this Agreement.

16. REPORTS AND PAYMENTS

16.1 Clearwire Communications Reports. Beginning in the first full calendar quarter commencing after the Effective Date, within forty-five (45) days after the close of each calendar quarter, Clearwire Communications will submit a report to Intel, in a form reasonably acceptable to Intel, certified by an authorized representative of Clearwire Communications that includes the following information:

16.1.1 The number of Qualifying Intel Devices Activated on the Clearwire Communications Network, both the cumulative amount since the Effective Date and the additive amount for the prior calendar quarter;

16.1.2 The amount of Embedded Device Activation Fees owed to Intel for the prior calendar quarter;

16.1.3 The total amount of Access Revenue and the amount of Intel Revenue Share for the prior calendar quarter;

16.1.4 The POPs Coverage, both the cumulative amount since the Effective Date and the additive amount for the prior calendar quarter; and

16.1.5 Any other information mutually agreed upon by the Parties that is reasonably necessary to verify Clearwire Communications’ compliance with its obligations under this Agreement. Notwithstanding anything to the contrary in this Agreement, Clearwire Communications shall not be obligated to provide information to Intel that would allow Intel to extrapolate Clearwire

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Communications’ financial results or performance other than with respect to the calculation of amounts owed by Clearwire Communications to Intel under this Agreement.

16.2 Intel Reports. Beginning in the first full calendar quarter commencing after the Effective Date, within forty-five (45) days after the close of each calendar quarter, Intel will provide Clearwire Communications with a written report, in a form reasonably acceptable to Clearwire Communications, certified by an authorized representative of Intel, that includes the following information:

16.2.1 The volume of all Qualifying Intel Devices sold in the United States, both the cumulative amount sold since the Effective Date and the additive amount sold for the prior calendar quarter;

16.2.2 The volume of all Intel Devices sold in the United States, both the cumulative amount sold since the Effective Date and the additive amount sold for the prior calendar quarter;

16.2.3 Any other information mutually agreed upon by the Parties that is reasonably necessary to verify Intel’s compliance with its obligations under this Agreement. Notwithstanding anything to the contrary in this Agreement, Intel shall not be obligated to provide information to Clearwire Communications that would allow Clearwire Communications to extrapolate Intel’s financial results or performance other than with respect to the calculation of amounts earned by Intel or any true up payments due under this Agreement.

16.3 Payments. With respect to any payments due from Clearwire Communications to Intel for Embedded Device Activation Fees and/or Intel Revenue Share, Clearwire Communications shall pay such amounts on a calendar quarterly basis, within forty-five (45) days after the end of a calendar quarter, in accordance with wire transfer instructions it receives from Intel.

17. PRIOR AGREEMENTS

17.1 Termination of Prior Agreements. Concurrent with the Effective Date, the following agreements will become null, void, and shall terminate without any Party having any further liability or obligation to the other Party, except to the extent such agreements contained provisions concerning the confidentiality of information, in which case those confidentiality provisions will, to the extent provided in those agreements, continue to survive:

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17.1.1 That certain WiMAX Market Development and Co-Marketing Agreement between Sprint/United Management Company and Intel Corporation, dated July 28, 2006.

17.1.2 That certain Mobile WiMAX Network Collaboration Agreement between Intel Corporation and Clearwire Corporation dated June 28, 2006.

18. WIMAX DEVELOPMENT ROADMAP AND SUPPORT

18.1 Intel Roadmap. Intel will, as part of its standard business practices, develop a multi-year road map for the development and support of WiMAX. Such WiMAX road map is considered Intel Confidential Information and will be provided to Clearwire Communications for informational purposes only and is subject to change at Intel’s sole discretion. Any such road map will include but not be limited to the following items (a) WiMAX Chipsets that are designed to comply with the WiMAX Forum Wave 2 Profile and (b) integrated WiFi/WiMAX Chipsets (including both base band and RF elements) for Devices supporting industry standard certification profiles.

18.2 Clearwire Communications participation in the Intel roadmap.

18.2.1 Intel will provide Clearwire Communications with periodic reviews of its WiMAX roadmap, and in no event less than once per calendar year, and permit Clearwire Communications to make suggestions and feedback to Intel’s roadmap.

18.2.2 Within ninety (90) days after Effective Date, the Parties will agree on a procedure for Clearwire Communications making suggestions and feedback to Intel’s roadmap and Intel’s use of those suggestions and feedback.

18.2.3 Intel and Clearwire Communications will explore options to develop and deploy features and functionality of WiMAX that may be exclusive or proprietary to Clearwire Communications. Any development or deployment of exclusive or proprietary features for Clearwire Communications in Qualifying WiMAX Chipsets is subject to technical and business due diligence and mutual agreement of the Parties with regard to terms and timelines to be negotiated in such event.

18.3 Support. The Parties will support the collaboration contemplated hereunder by, among other things:

18.3.1 Determining if it is desirable for the Parties to develop a plan to advocate and jointly pursue standardization efforts and profile changes in the WiMAX Forum and 3GPP and 3GPP2-related standards bodies consistent with Clearwire Communications FDD implementation requirements, applicable law and the rules of such standards bodies. To that end, Intel and Clearwire Communications through their respective alliance managers will work together to understand

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Clearwire Communications FDD implementation requirements, including but not limited to: (i) undertaking an FDD feasibility study; and (ii) identifying specific recommendations.

18.3.2 Providing support for both the U.S. and ITU/European WiMAX band plans (2.3 GHz, 2.5 GHz and 3.5 GHz) on a WiMAX Chipset.

18.3.3 Providing support, at Clearwire Communications’ request, for up to one additional WiMAX frequency band plan as mutually agreed by the Parties (based on scope and nature of the business opportunity).

18.3.4 Providing support for Clearwire Communications’ chosen WiMAX broadcasting methods upon mutual agreement by the Parties (subject to additional technical and business due diligence by Intel).

18.4 Middleware.

18.4.1 Upon mutual agreement of the Parties, Intel will support a Clearwire Communications designated common middleware interface for all Qualifying WiMAX Chipsets and WiMAX Chipsets (subject to additional technical and business due diligence by Intel).

18.4.2 In addition, Intel will make available to Clearwire Communications, or its designated vendors and suppliers, its APIs for Intel’s middleware platform for Qualifying WiMAX Chipsets on commercially reasonable terms in conjunction with such Qualifying WiMAX Chipsets.

18.5 Reserved.

18.6 Equipment Certification. Intel and Clearwire Communications will cooperate as provided for herein to obtain WiMAX Equipment Certification, to the extent such certification program is established.

18.7 No Limitations on Clearwire Communications WiMAX Services. Clearwire Communications reserves the right to offer any access, telecommunications, and/or information product or service to its Customers over the Clearwire Communications Network that is compatible with WiMAX, even if Standards Bodies have not yet published ratified standards for such product or service. By way of illustration only, Clearwire Communications may offer over the Clearwire Communications Network, Clearwire Communications proprietary WiMAX services that have not been standardized by industry standard setting organizations.

18.8 Non-WiMAX Clearwire Communications Products and Services. Nothing in this Agreement restricts Clearwire Communications from using the Clearwire Communications Network to offer non-WiMAX products, applications and services to its

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customers, and except as expressly provided for herein no remedies or penalties shall be imposed on Clearwire Communications for doing so.

18.9 [*****]

18.10 Clearwire Communications Quarterly Services Roadmap. Clearwire Communications will provide Intel with the Clearwire Communications Quarterly Services Roadmap at the same time as Clearwire Communications provides such roadmap to any MSO Member, consistent with Clearwire Communications’ MVNO agreements with such MSO Members.

19. RESERVED

20. WIMAX CHIPSET SOURCING TERMS

20.1 Clearwire Communications as OEM. If during the Term, Clearwire Communications and/or its Affiliates choose to undertake the manufacture of products incorporating Qualifying WiMAX Chipsets or WiMAX Chipsets, (either directly or in connection with third party vendors, but if the latter, then only if (i) Clearwire Communications and/or its Affiliates have direct input on chipset selection and purchases and (ii) Clearwire Communications and/or its Affiliates directly purchases such Qualifying WiMAX Chipsets or WiMAX Chipsets on behalf of such third party vendor for Clearwire Communications and/or its Affiliate’s own consumption), the Parties will undertake to negotiate the terms and conditions of a separate and independent purchase agreement between Intel (through its Affiliate Intel Americas) and Clearwire Communications and/or Intel (through its Affiliate Intel Americas) and such Clearwire Communications Affiliate for such purchases of Qualifying WiMAX Chipsets or WiMAX Chipsets, including without limitation, any applicable intellectual property indemnification provisions, pricing and other terms and conditions, in a timely manner.

21. COLLABORATION ON GLOBAL ADOPTION

21.1 Standards Advocacy. The Parties will use commercially reasonable efforts to collaborate on global adoption of WiMAX standards as follows:

21.1.1 Clearwire Communications will publicly support the WiMAX technology standard as a global standard as long as Clearwire Communications determines it is in Clearwire Communications’ interests to do so;

21.1.2 The Parties will work together to encourage other wireless operators outside the United States to deploy WiMAX technology;

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21.1.3 Intel and Clearwire Communications will proactively participate in the WiMAX Forum and in 3GPP and 3GPP2-related industry committees and working groups;

21.1.4 Pursuant to the confidentiality provisions in this Agreement and subject to the rules of an applicable standards body and applicable law, Intel and Clearwire Communications will put forth their best effort to provide each other with advance notice (and opportunity to comment) on submissions to the WiMAX Forum which impact United States deployment of WiMAX, and will support each other’s submissions to the extent that each company deems it commercially feasible; provided that if either Party has an obligation of confidentiality to another party in connection with all or any portion of a proposed submission, the obligated Party shall not be obligated to disclose such confidential information to the other. If either Intel or Clearwire Communications objects to each other’s proposed submission to WiMAX Forum, Intel and Clearwire Communications will work together in good faith to find a mutually acceptable solution.

22. CUSTOMER RELATIONSHIPS

22.1 Clearwire Communications Customer Relationship. At all times the Customer relationship with regard to the Clearwire Communications Network and Devices sold by Clearwire Communications to Customers will be solely between the Customer and Clearwire Communications. Intel acknowledges that Clearwire Communications reserves the right to: (a) discontinue Services to any Customer; (b) change the rates charged for the Services; (c) identify and define which Services may be provided; and (d) define the coverage area of the Services provided to Customers.

22.2 Pricing. Clearwire Communications will retain complete discretion in determining the prices of its Devices and Services sold to Customers by Clearwire Communications and Clearwire Communications authorized sales channels.

22.3 Potential Clearwire Communications Customers. Both Parties acknowledge that Clearwire Communications’ Customer has the ultimate purchasing decision, and may choose a different wireless service to support its business needs. Intel acknowledges that nothing herein shall obligate or require Clearwire Communications to conduct business, negotiate or sign an agreement with any potential Customer if Clearwire Communications desires not choose to deal with such potential Customer for any reason whatsoever.

22.4 Clearwire Communications Right to Terminate Network Service. Clearwire Communications reserves the right in all instances to terminate a Customer Contract or other wireless service agreement with any of its Customers at any time in its sole discretion.

23. DEMONSTRATION AND TEST ACCOUNTS

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23.1 Demonstration and Test Accounts. Clearwire Communications agrees to provide Intel with the following complimentary demonstration service plans to use for testing, demonstration and support of the Clearwire Communications Services: thirty (30) accounts for the Term of this Agreement and twenty (20) ninety-day (90-day) temporary accounts that may be renewed at Intel’s discretion. Intel earns no Embedded Device Activation Fees or Intel Revenue Share in connection with demonstration plans.

23.2 Demonstration Devices. Intel will use commercially reasonable efforts to arrange with its Device OEMs to obtain a reasonable number of demonstration devices containing WiMAX Chipsets. Intel earns no Embedded Device Activation Fees or Intel Revenue Share in connection with the Activation of demonstration devices.

23.3 Unauthorized Products. This Agreement does not authorize Intel to market any other products or services specifically for use on the Clearwire Communications Network except as provided in this Agreement, even if such unauthorized products appears to be compatible or usable with the Clearwire Communications Network.

24. NETWORK DATA

24.1 During the Term, if Intel is given access to data generated, gathered, or otherwise collected by or collectible from the Clearwire Communications Network (collectively the “ Network Data ”), Intel will only use Network Data to the extent necessary to perform its obligations under this Agreement. Intel hereby acknowledges that the provisions of this Section 24.1 are a material element of this Agreement and in the event of a material breach of this Section 24.1 Clearwire Communications will be entitled to obtain equitable and/or injunctive relief as appropriate to enforce its rights, subject to the terms of this Agreement.

25. INTELLECTUAL PROPERTY OWNERSHIP

25.1 Background Intellectual Property. Clearwire Communications shall own all right, title and interest in and to any and all of Clearwire Communications’ Intellectual Property existing prior to the Effective Date (“ Clearwire Communications Background Intellectual Property ”). Intel shall own all right, title and interest in and to any and all of Intel’s Intellectual Property existing prior to the Effective Date (“ Intel Background Intellectual Property ”).

25.2 No Implied Rights. Except as expressly set forth in this Agreement, nothing herein will be deemed to grant to a Party, by implication, estoppel, or otherwise, and neither Party will acquire, any right, interest or license with respect to any Intellectual Property of the other Party.

25.3 To the extent that Intel and Clearwire Communications collaborate on future

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developments or enhancements to WiMAX technology, including but not limited to those related to the Clearwire Communications Network, WiMAX Chipsets, and Devices, the Parties will, prior to undertaking any joint development work, meet in good faith and agree on an ownership structure for such jointly developed technology. If the Parties agree to undertake the joint development of technology, the Parties will give reasonable consideration to a structure under which one of the Parties owns the Intellectual Property rights to the jointly developed technology and that Party grants a license to the other Party, provided however that nothing herein shall compel either Party to agree to any joint development agreement.

26. DISCLAIMER OF WARRANTIES

26.1 No Other Warranties. EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE WARRANTIES GIVEN BY EACH PARTY IN THIS AGREEMENT ARE THE ONLY WARRANTIES GIVEN BY EACH PARTY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED BY STATUTE OR OTHERWISE, ARE SPECIFICALLY EXCLUDED BY THE PARTIES, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTIBILITY; FITNESS FOR A PARTICULAR PURPOSE OR WARRANTIES OF NON-INFRINGMENT.

27. GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS OF INTEL

Intel represents, warrants and covenants that:

27.1 Organization; Authorization. Intel is duly organized, validly existing and in good standing under the laws of its jurisdiction of formation and has all corporate powers and all governmental licenses and consents required to carry on its business as now conducted, except for those governmental licenses and consents the absence of which would not reasonably be expected to result, individually or in the aggregate, in a material adverse effect on Intel. Intel has all requisite power and authority to enter into this Agreement and to perform the obligations to be performed by it under this Agreement.

27.2 The execution and delivery of this Agreement, and the performance by Intel of its obligations under this Agreement, have been duly authorized by all necessary actions on the part of Intel. This Agreement has been, or will be, duly executed and delivered by Intel, and constitutes, and will constitute, a legal, valid and binding obligation of Intel, as the case may be, enforceable against it in accordance with its terms.

27.3 Non-Contravention. The execution, delivery and performance of this Agreement, and the fulfillment of and compliance with the terms and conditions of this Agreement do not or will not (as the case may be), with the passing of time or the giving of notice or

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both, violate or conflict with, constitute a breach of or default under, (a) any term or provision of the charter documents or equivalent organizational documents of Intel, (b) any contractual obligation of Intel, or (c) any judgment, decree or order to which Intel is a party or by which Intel or any of its respective properties are bound.

28. GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS OF CLEARWIRE COMMUNICATIONS

Clearwire Communications represents and warrants that:

28.1 Organization; Authorization. Clearwire Communications is duly organized, validly existing and in good standing under the laws of its jurisdiction of formation and has all corporate powers and all governmental licenses and consents required to carry on its business as now conducted, except for those governmental licenses and consents the absence of which would not reasonably be expected to result, individually or in the aggregate, in a material adverse effect on Clearwire Communications. Clearwire Communications has all requisite power and authority to enter into this Agreement and to perform the obligations to be performed by it under this Agreement.

28.2 The execution and delivery of this Agreement, and the performance by Clearwire Communications of its obligations under this Agreement, have been duly authorized by all necessary actions on the part of Clearwire Communications. This Agreement has been, or will be, duly executed and delivered by Clearwire Communications, and constitutes, and will constitute, a legal, valid and binding obligation of Clearwire Communications, as the case may be, enforceable against it in accordance with its terms. A

28.3 Non-Contravention. The execution, delivery and performance of this Agreement, and the fulfillment of and compliance with the terms and conditions of this Agreement do not or will not (as the case may be), with the passing of time or the giving of notice or both, violate or conflict with, constitute a breach of or default under, (a) any term or provision of the charter documents or equivalent organizational documents of Clearwire Communications, (b) any contractual obligation of Clearwire Communications, or (c) any judgment, decree or order to which Clearwire Communications is a party or by which Clearwire Communications or any of its respective properties are bound.

29. CONFIDENTIAL INFORMATION

29.1 Confidential Information. The confidential, proprietary and trade secret information of the disclosing Party (“ Confidential Information ”) to be disclosed hereunder is (i) information in tangible form that bears a “confidential,” “proprietary,” “secret,” or similar legend, or which based upon the circumstances of disclosure would lead a reasonable person to conclude it is intended to be confidential and (ii) discussions relating to that information whether those discussions occur prior to, concurrent with, or following disclosure of the information.

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29.2 Obligations of Receiving Party. The receiving Party will maintain the confidentiality of the Confidential Information of the disclosing Party with at least the same degree of care that it uses to protect its own confidential and proprietary information, but no less than a reasonable degree of care under the circumstances. The receiving Party will not disclose any of the disclosing Party’s Confidential Information to any employees or to any third parties except to the receiving Party’s employees, parent company and majority-owned subsidiaries who have a need to know and who agree to abide by nondisclosure terms at least as comprehensive as those set forth herein; provided that the receiving Party will be liable for breach by any such entity. For the purposes of this Agreement, the term “employees” shall include independent contractors of each Party. The receiving Party will not make any copies of the Confidential Information received from the disclosing Party except as necessary for its employees, parent company and majority-owned subsidiaries with a need to know.

29.3 Period of Non-Assertion. The disclosing Party will not assert any claims of breach of this Section or misappropriation of trade secrets against the receiving Party arising from the receiving Party’s disclosure of the disclosing Party’s Confidential Information made more than seven (7) years from the date of the disclosure. However, unless at least one of the exceptions set forth in Section 29.4 below has occurred, the receiving Party will continue to treat such Confidential Information as the confidential information of the disclosing Party and only disclose any such Confidential Information to third parties under the terms of a non-disclosure agreement.

29.4 Termination of Obligation of Confidentiality. The receiving Party will not be liable for the disclosure of any Confidential Information which is:

(a) rightfully in the public domain other than by a breach of a duty to the disclosing Party;

(b) rightfully received from a third party without any obligation of confidentiality;

(c) rightfully known to the receiving Party without any limitation on use or disclosure prior to its receipt from the disclosing Party;

(d) independently developed by employees of the receiving Party; or

(e) generally made available to third parties by the disclosing Party without restriction on disclosure.

29.5 Title. Title to Confidential Information as between the parties will remain with the disclosing Party.

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29.6 No Obligation of Disclosure; Termination. Except as expressly provided for herein, neither Party has any obligation to disclose any Confidential Information to the other. Upon termination of this Agreement, each Party shall either return or destroy (and in the case of destruction certify such destruction) all of the other Party’s


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