Exhibit 10.1


 


ANI and Vyyo Proprietary & Confidential


 


EQUIPMENT PURCHASE AGREEMENT


 


BETWEEN


 


VYYO INC.


 


AND


 


ARCADIAN NETWORKS INC.


 


Vyyo Inc. has requested confidential treatment pursuant to the rules
and regulations of the Securities Exchange of 1934, as amended, for certain
portions of this exhibit identified by ***


 

















 


THIS EQUIPMENT PURCHASE AGREEMENT (this
“Agreement”) is entered into effective as of March 31, 2006 (the “Effective
Date”), by and between Vyyo Inc., a Delaware corporation, having its principal
place of business at 4015 Miranda Avenue, First Floor, Palo Alto, California
94304, United States (hereinafter referred to as “Vyyo”), and Arcadian Networks
Inc., a Delaware corporation, having its principal place of business at 26
Broadway, 21st Floor, New York, New York 10004(hereinafter referred
to as “ANI”).


 


WHEREAS, Vyyo is
engaged in the business of manufacturing, selling and installing the Products,
including the Spare Parts (as defined below) described in Schedules A-1 and A-2 respectively.


 


WHEREAS, Vyyo also
provides certain Services (as defined below) relating to the Products.


 


WHEREAS, ANI desires
to purchase the Products (including the Spare Parts) and Services from Vyyo and
Vyyo desires to sell the Products (including the Spare Parts) and deliver the
Services to ANI, upon the terms and conditions set forth herein.


 


NOW THEREFORE, the
parties agree as follows:


 


ARTICLE 1.
CERTAIN DEFINITIONS


 


“Agreement” means this Agreement and the following schedules and
exhibits which are attached hereto and form part of this Agreement:


 


	
  Schedule A-1 -

  	
   

  	
  Product (not including Spare Parts) list
  and Pricing

  
	
  Schedule A-2 -

  	
   

  	
  Spare Parts list and Pricing

  
	
  Schedule A-3 -

  	
   

  	
  New Product Pricing Procedure

  
	
  Schedule B-1 -

  	
   

  	
  Minimum Product Purchase Amounts

  
	
  Schedule B-2 -

  	
   

  	
  Forecast Amount

  
	
  Schedule B-3 -

  	
   

  	
  Exclusivity Amount

  
	
  Schedule C-1 -

  	
   

  	
  Support Services and Rates

  
	
  Schedule C-2 -

  	
   

  	
  Maintenance Services and Rates

  
	
  Schedule C-3 -

  	
   

  	
  Extended Warranty and Rates

  
	
  Schedule C-4 -

  	
   

  	
  Training Services and Rates

  
	
  Schedule C-5 -

  	
   

  	
  Miscellaneous Services and Rates

  
	
  Schedule D -

  	
   

  	
  Escrow Agreement

  
	
  Exhibit 1 -

  	
   

  	
  Initial Purchase

  
	
  Exhibit 2 -

  	
   

  	
  Insurance

  



 

















 


“Product” or “Products” shall mean (i) the products set forth in Schedule A-1 and any revisions or
upgrades thereto, including products intended to replace any products on Schedule A-1, (ii) new wireless
products introduced by Vyyo (other than revisions, replacements or upgrades to
the products set forth in Schedule A-1,
which the parties agree are covered in item (i)) and any other new products as may be agreed upon by the
parties in writing from time to time, and any revisions or upgrades thereto
(collectively “New Products”), and (iii) Spare Parts (as defined below). All
such products (excluding Spare Parts) shall be added to Schedule A-1.


 


“Spare Part” or “Spare Parts” shall mean (i) the spare parts set
forth in Schedule A-2 and any
revisions or upgrades thereto, including spare parts intended to replace any
spare parts on Schedule A-2, (ii) new
spare parts introduced by Vyyo (other than revisions, upgrades or spare parts
intended to replace any spare parts on Schedule A-2,
which the parties agree are covered in item (i)) and any revisions or upgrades
thereto, (iii) any spare parts necessary for New Products added to Schedule A-1, and (iv) any other
new spare parts as may be agreed upon by the parties in writing from time
to time (collectively, (ii) – (iv) referred to herein as “New Spare
Parts”). All such spare parts shall be added to Schedule A-2.


 


“Product End of Life” or “Product EOL” shall mean such time when (i) Vyyo
reasonably concludes that it will no longer manufacture or procure a Product, (ii) such
Product has been replaced by the next generation of such Product and Vyyo has
determined not to continue to manufacture or procure such earlier generation
Product, or (iii) Vyyo reasonably concludes that it can no longer obtain
the components it requires to manufacture a Product on a commercially
reasonable basis.


 


“Material Component End of Life” or “Material Component EOL” shall mean
such time when (i) Vyyo reasonably concludes that it will no longer obtain
a material Product component(s) it requires to manufacture a Product on a
commercially reasonable basis, or (ii) a material Product component has
been replaced by the next generation of such component and the manufacturer has
determined not to continue to manufacture such earlier generation component.


 


“Minimum Product Purchase Amount” or “Minimum Product Purchase Amounts”
shall have the meaning set forth in Schedule B-1.


 


“Forecast Amount” shall mean the amount for a specified period as set
forth in Schedule B-2.


 


“Exclusivity Amount” shall mean the amounts set forth in Schedule B-3.


 


 “Price” or “Prices” shall mean
the prices payable to Vyyo in consideration for the sale of Products and/or
Services as set forth in Schedule A-1,
A-2, C-1, C-2, C-3, C-4 and C-5.


 

















 


“Product Purchase Amount” shall mean, for each year (or other
applicable period) of the Term, the aggregate Prices paid or to be paid by ANI
to Vyyo for Products shipped and to be shipped within such year (or other
applicable period) based upon the shipping dates set forth in accepted Purchase
Orders, provided however that if any Products are shipped by Vyyo on a date
that is later than the shipping date set forth in an accepted Purchase Order as
requested by ANI pursuant to Section 6.4 below the relevant year (or other
applicable period) shall be based on the actual shipping date for such
Products.


 


“Relevant Market” shall have the meaning set forth in Article 18.


 


“Relevant Territory” shall have the meaning set forth in Article 18.


 


“Miscellaneous Services” shall have the meaning set forth in Section 2.3.


 


“Standard Services” means the Services described in Schedules C-1, C-2, C-3, and C-4.


 


“Services” means the Standard Services and the Miscellaneous Services.


 


“Software” shall mean the Vyyo proprietary and third party software
provided with any of the Products purchased hereunder, including without
limitation the network management software (“NMS”).


 


ARTICLE 2.
SALE AND PURCHASE OF EQUIPMENT AND SERVICES


 


2.1           ANI
may, from time to time, purchase Products from Vyyo at the Prices set forth in Schedules A-1 and A-2. Vyyo agrees to sell
to ANI and ANI agrees to purchase from Vyyo such Products in accordance with
the terms of this Agreement.


 


2.2           ANI
may, from time to time, purchase the Standard Services from Vyyo at the Prices
set forth in Schedules C-1, C-2, C-3 and C-4. Vyyo agrees to sell to ANI such
Standard Services in accordance with the terms of Schedules C-1, C-2, C-3,
and C-4 respectively and this
Agreement.


 


2.3           ANI
may request, during the eighteen (18) months following the Effective Date,
to purchase additional services to be performed by Vyyo employees which
services are within such employees’ areas of expertise (the “Miscellaneous
Services”). The Miscellaneous Services shall not include software or product
development services. Vyyo shall provide Miscellaneous Services to ANI in
accordance with the hourly and/or daily (as applicable) Prices set forth in Schedule C-5, subject to such
employees’ reasonable availability given such 


 

















 


employees’ work commitments for Vyyo. The parties shall negotiate in
good faith and set forth in a statement of work any such Miscellaneous Services
to be performed by Vyyo employees hereunder, which statement of work shall be
attached to the applicable Purchase Order for such Miscellaneous Services and
shall include a performance schedule, any applicable deliverables and any
additional terms applicable to such Miscellaneous Services. Any Miscellaneous
Services shall be performed by Vyyo’s employees subject to the direction and
control of ANI.


 


2.4           There
shall be an initial purchase (the “Initial Purchase”) of Products and Services,
which Initial Purchase shall consist of the quantity, type and shipment schedule of
Products and Services to be delivered and be subject to the additional terms
and conditions set forth in Exhibit 1.
The parties shall mutually agree upon shipment dates for the Products
identified in the Initial Purchase.


 


2.5           Vyyo
shall assist ANI, during the 12 months following the Effective Date, in
identifying any standard off-the-shelf test equipment which may be used to
test and maintain the Products and in specifying any customization of such test
equipment appropriate for such purpose.


 


2.6           Vyyo
may only remove a Product from Schedule A-1
or A-2 at the Product EOL for such
Product. 

Except as set forth below with respect to third party Products or Products
containing material third party components (collectively “Third Party Products”),
if a Product is approaching its Product EOL, Vyyo shall provide a minimum of 12
months advance written notice of such Product EOL to ANI before such Product
can be removed from Schedules A-1 or A-2.
Notwithstanding any Product EOL of such Product, Vyyo shall continue to support
any such Product for the lesser of (A) a period of 5 years from the last
date of sale of such Product to ANI or (B) 2 years from the Product EOL of
such Product. Notwithstanding the foregoing, if a Third Party Product is
reaching its Product EOL , Vyyo may remove such Third Party Products from Schedules A-1 and A-2 at such Third Party Product’s Product
EOL as determined by the third party manufacturer, but shall provide ANI with “back-to-back”
advance written notice of the Product EOL of any such Third Party Products
promptly after Vyyo’s receipt of notice thereof from such third party
manufacturer(s) and will provide “back-to-back” support as provided by such
third party manufacturers. Any Purchase Orders issued within the 12 month
notice period or “back-to-back” notice period, as the case may be, for any
Product (or Third Party Product, as the case may be) at its Product EOL
shall be filled by Vyyo in accordance with the provisions of Article 4.


 


2.7           In
the case of Material Component EOL that does not affect functionality (if
functionality is affected, the event shall be treated the same as a Product
EOL), 


 

















 


Vyyo shall provide six (6) months advance written notice to ANI
prior to changing such material component.


 


ARTICLE 3.
PRICE


 


3.1           For
each Product set forth on Schedules A-1 and
A-2 as of the Effective Date there is a Price for such Product
listed on Schedules A-1 or A-2, respectively.
For Products added to Schedules A-1 or A-2
after the Effective Date the initial Prices for such Products will be
determined in accordance with the New Product Pricing Procedure set forth on Schedule A-3. For the avoidance of
doubt, Prices for Products shall be fixed upon acceptance of a Product Purchase
Order without regard to the shipping date.


 


3.2           For
the Products set forth on Schedules A-1 and
A-2 as of the Effective Date, the parties agree that the Prices set
forth on Schedule A-1 and A-2
are fixed for a period of 24 months after the Initial Purchase, and then shall
be adjusted as follows:


 


3.2.1        Provided
that ANI’s annual Product Purchase Amount between the first day of the 13th
month after the Initial Purchase through and including the last day of the 24th
month after the Initial Purchase (“Year 2”) is equal to or greater than *** but
less than the Forecast Amount for Year 2, commencing as of the first day of the
25th month after the Initial Purchase, (i) ANI shall be entitled to an
aggregate credit equal to 2% of the total Product Purchase Amount for Year 2 (“Year
2 Credit”), which credit shall be applied toward all new Product Purchase
Orders until the credit is fully used provided however that the credit applied
to any given Product Purchase Order shall not exceed 30% of the amount of such
Product Purchase Order and any balance of such credit shall be carried forward
and applied to subsequent Product Purchase Orders in the same manner until
fully used, and (ii) the Prices for Product purchases during the twelve
(12) months commencing on that date (“Year 3”) shall be reduced by 2%.


 






*** Denotes language for which
Vyyo Inc. has requested confidential treatment pursuant to the rules and
regulations of the Securities Exchange Act of 1934, as amended


 

















 


3.2.2        Provided that ANI’s annual
Product Purchase Amount for Year 3 is equal to or greater than the Minimum
Product Purchase Amount for such year but less than the Forecast Amount for
such year, commencing as of the first day of the next year (“Year 4”), (i) ANI
shall be entitled to an aggregate credit equal to 4% of the total Product
Purchase Amount for Year 3 (“Year 3 Credit”), which credit shall be applied
toward all new Product Purchase Orders until the credit is fully used provided
however that the credit applied to any given Product Purchase Order shall not
exceed 30% of the amount of such Product Purchase Order and any balance of such
credit shall be carried forward and applied to subsequent Product Purchase
Orders in the same manner until fully used, and (ii) the Prices for
Product purchases during Year 4 shall be reduced by 4%.


 


3.2.3        Provided
that ANI’s annual Product Purchase Amount for Year 4 is equal to or greater
than the Minimum Product Purchase Amount for such year but less than the
Forecast Amount for such year, commencing as of the first day of the next year
(“Year 5”), (i) ANI shall be entitled to an aggregate credit equal to 4%
of the total Product Purchase Amount for Year 4 (the “Year 4 Credit”), which
credit shall be applied toward all new Product Purchase Orders until the credit
is fully used provided however that the credit applied to any given Product
Purchase Order shall not exceed 30% of the amount of such Product Purchase
Order and any balance of such credit shall be carried forward and applied to
subsequent Product Purchase Orders in the same manner until fully used, and (ii) the
Prices for Product purchases during Year 5 shall be reduced by 4%.


 


3.2.4        Provided
that ANI’s annual Product Purchase Amount for Year 5 is equal to or greater
than the Minimum Product Purchase Amount for such year but less than the
Forecast Amount for such year, commencing as of the first day of the next year
(“Year 6”), (i) ANI shall be entitled to an aggregate credit equal to 4%
of the total Product Purchase Amount for Year 5 (the “Year 5 Credit”), which
credit shall be applied toward all new Product Purchase Orders until the credit
is fully used provided however that the credit applied to any given Product
Purchase Order shall not exceed 30% of the amount of such Product Purchase
Order and any balance of such credit shall be carried forward and applied to
subsequent Product Purchase Orders in the same manner until fully used, and (ii) the
Prices for Product purchases during Year 6 shall be reduced by 4%.


 


3.2.5        Provided
that ANI’s annual Product Purchase Amount for Year 2 is equal to or greater
than the Forecast Amount for such year, (i) the Year 2 Credit shall be
equal to 4% of the total Product Purchase Amount for Year 2 rather than 2% and (ii) the
amount of Price reduction for Product purchases in Year 3 shall be 4% rather
than 2%. Provided that ANI’s annual Product Purchase Amount for Year 3 is equal
to or greater than the 


 

















 


Forecast Amount for such year, (i) the Year 3 Credit shall be
equal to 6% of the total Product Purchase Amount for Year 3 rather than 4% and (ii) the
amount of Price reduction for Product purchases in Year 4 shall be 6% rather
than 4%. Provided that ANI’s annual Product Purchase Amount for Year 4 is equal
to or greater than the Forecast Amount for such year, (i) the Year 4
Credit shall be equal to 6% of the total Product Purchase Amount for Year 4
rather than 4% and (ii) the amount of Price reduction for Product
purchases in Year 5 shall be 6% rather than 4%. Provided that ANI’s annual
Product Purchase Amount for Year 5 is equal to or greater than the Forecast
Amount for such year, (i) the Year 5 Credit shall be equal to 6% of the
total Product Purchase Amount for Year 5 rather than 4% and (ii) the
amount of Price reduction for Product purchases in Year 6 shall be 6% rather
than 4%.


 


3.3           For
each New Product added to Schedule A-1
or New Spare Part added to Schedule A-2
after the Effective Date, the parties agree that the initial Price for such New
Product or New Spare Part (as determined in accordance with Schedule A-3) is fixed for a period of
24 months after the initial accepted Purchase Order for such New Product and/or
New Spare Part, as applicable, and thereafter shall be reduced for the
immediately subsequent three (3) year periods in accordance with the same
discount structure as with respect to Products (as set forth in Sections 3.2.1
through 3.2.5, above). By way of example, the Year 3 discount for existing
Products would apply during the third year after the initial accepted Purchase
Order for a New Product.


 


3.4           For
purposes of clarification, if ANI’s Product Purchase Amount for any given year
is less than the Minimum Product Purchase Amount for such year, ANI shall not
qualify for the applicable credit for such year or the applicable reduction in
Price for the immediately subsequent year. Thereafter, if ANI’s Product
Purchase Amount for any given year meets or exceeds the Minimum Product
Purchase Amount for such year, ANI shall again qualify for the applicable
credit for such year and the applicable reduction in Price for the immediately
subsequent year.


 


3.5           The
Prices of Standard Services are set forth in Schedules
C-1, C-2, C-3 and C-4
and the Prices for Miscellaneous Services shall be at the hourly or daily rates
(as applicable) specified in Schedule C-5.


 


3.6           The
prices of Products shall be on an Ex-Works (EXW) basis packed for export at
Vyyo’s facility, and are exclusive of any and all taxes and/or import duties
applicable to the sale or use of the Products sold. Any such tax(es), except
taxes based upon Vyyo’s net income shall be separately itemized on Vyyo’s
invoice(s) and ANI agrees to assume and pay or cause to be paid any and all
such taxes and/or other charges incidental to the purchase or sale of such
Products or, in lieu 


 

















 


thereof, ANI shall furnish Vyyo with a
properly executed tax exemption certificate prior to shipment. The prices of
Products may be quoted by Vyyo on a CIP basis, at ANI’s request.


 


3.7           Vyyo
agrees that the Product prices, excluding Spare Parts and NMS, set forth in
this Agreement shall, at all times, represent Vyyo’s best Product pricing terms
available to any Vyyo customer that purchases, in the Relevant Territory,
Products in similar or lesser quantities to those purchased by ANI hereunder
for reasonably similar types of usage (a “Vyyo Comparable Customer”). In the event
Vyyo grants a Vyyo Comparable Customer a better Product price than that
provided to ANI hereunder, Vyyo shall, unless prohibited by law, (i) promptly
notify ANI of such lower Product price, and (ii) extend to ANI the more
favorable Product price effective as of the date on which such more favorable
Product prices became effective with respect to such Vyyo Comparable Customer,
which more favorable price will be available to ANI to the extent that ANI (x)
commits to purchase at least the same volume as committed to purchase by the
Vyyo Comparable Customer and (y) accepts all of the other terms and conditions
offered to the Vyyo Comparable Customer and reasonably applicable to a purchase
by ANI (other than terms not reasonably related to the pricing of such
Products). This Section 3.6 shall not apply retroactively, nor shall it be
construed as entitling ANI to the return of or credit for any money paid by it
prior to the date such more favorable Product price became effective. If more
favorable prices for the Products are added pursuant to this Section 3.7
the parties shall promptly amend Schedule A-1
to include such more favorable Product prices for the length of time as such
more favorable Product price is available to the Vyyo Comparable Customer. For
the avoidance of doubt, all provisions of this Agreement relating to Product
prices shall continue to apply to such revised Price, including without
limitation Sections 3.2 and 3.3.


 


ARTICLE 4. PURCHASE ORDERS


 


4.1           Sales
of Products by Vyyo to ANI shall be subject to the terms and conditions of this
Agreement. The terms and conditions of this Agreement shall not be modified or
supplemented by any communication, purchase order, or other document from ANI
or Vyyo unless such communication is in writing, identified as an amendment to
this Agreement, and subsequently accepted in writing by an authorized officer
of Vyyo and ANI, as applicable.


 


4.2           Vyyo
agrees to sell to ANI the Products and Services in accordance with purchase
orders (each a “Purchase Order”) placed by ANI and accepted by Vyyo pursuant to
this Agreement. All Purchase Orders submitted by ANI to Vyyo shall:  (i) reference this Agreement and specify
a delivery date for Products no sooner than 90 days from the date of the
Purchase Order; (ii) contain definitive list prices 


 

















 


(based on Schedules A-1 and A-2),
Product and Service numbers, quantities, discounts and credits to the extent
applicable; and (iii) shall be signed and dated by an authorized
representative of ANI. Purchase Orders shall be binding on Vyyo only when
accepted in writing (including by facsimile notification) by Vyyo; provided,
however, that Vyyo will accept Purchase Orders if by using reasonable
commercial efforts it could fill the Purchase Orders in accordance with the
delivery schedules set forth therein (subject always to the EOL provisions set
forth in Section 2.6 and 2.7). During the first two (2) years of the
Agreement Vyyo agrees to extend ANI a credit line of 5 million dollars
($5,000,000). The amount of the credit line that Vyyo will extend to ANI after
the initial two (2) years of the Agreement shall be discussed in good
faith by the parties and mutually agreed upon in writing prior to the end of
the initial two (2) years of the Agreement. For purposes of clarification,
notwithstanding anything to the contrary herein, if at any time during the Term
of the Agreement the amount of ANI’s outstanding invoices to Vyyo hereunder,
together with the Price for any submitted Purchase Order, exceeds ANI’s
then-current credit line extended by Vyyo to ANI, Vyyo may reject such
Purchase Order unless ANI is willing to pre-pay for such Purchase Order. In no
event shall the foregoing permit Vyyo to reject, or require ANI to pre-pay, the
Initial Purchase; provided however, the parties acknowledge and agree that Vyyo
may, upon notice to ANI, delay the shipment of Product pursuant to such Initial
Purchase to the extent that the then-current outstanding amount owed by ANI
pursuant to such Initial Purchase is greater than 5 million dollars ($5,000,000)
until such time as the then-current outstanding amount owed by ANI pursuant to
such Initial Purchase is less than 5 million dollars ($5,000,000).


 


ANI’s forecasts do not bind either party, and
Vyyo will conduct such preparation towards the fulfillment of Purchase Orders
to an extent and manner as decided by Vyyo. Vyyo will confirm acceptance of
each Purchase Order by notifying ANI in writing (including by facsimile
notification) of the anticipated date of delivery within seven (7) business
days of receipt of the Purchase Order. If Vyyo cannot reasonably meet a
delivery schedule requested in a Purchase Order, Vyyo may reject such
Purchase Order and notify ANI in writing of Vyyo’s commercially reasonable schedule for
fulfillment of such Purchase Order. ANI may, in its discretion, promptly
resubmit such Purchase Order with a revised delivery schedule. If a Purchase
Order submitted by ANI does not conform to the requirements of this
Article, Vyyo shall promptly inform ANI of such fact and shall provide ANI
with the opportunity to submit a corrected Purchase Order. Each accepted
Purchase Order shall be governed by this Agreement.


 

















 


ARTICLE 5. FORECASTS


 


5.1.          ANI
shall provide Vyyo non-binding forecasts of its anticipated purchase of
Products as set forth in this Section 5.1. Each forecast submitted
hereunder shall state ANI’s anticipated purchase of Products for the succeeding
12 month period based on (i) ANI’s actual signed contracts with customers
(high-level abstracts of which shall be provided to Vyyo, subject to any ANI
confidentiality obligations) and (ii) other anticipated Product purchases
forecasted by ANI. The first such forecast shall be provided within 60 days
after the execution of this Agreement. Thereafter, subsequent 12 month
forecasts will be provided on March 1 and September 1 of each year,
commencing on September 1, 2006.


 


ARTICLE 6.
DELIVERY


 


6.1           Vyyo’s delivery period
of Products from the effective date of the Purchase Order hereunder to the date
of delivery shall be as stated in the Purchase Order accepted by Vyyo as
specified in Article 4.


 


6.2           Vyyo
shall inform ANI of the readiness of the shipment of Products ten (10) business
days in advance of the expected date for shipment by fax / e-mail which shall
contain the following information:


 


(a)           Purchase
Order number and description of the Product;


(b)           Unit
price and total value of the Product to be shipped;


(c)           Estimated
net, gross weight and measurement of the packages to be shipped (if on an EXW
basis).


 


6.3           Vyyo
shall ship the Products to ANI at the location designated by ANI in the
applicable Purchase Order, which may be the premises of ANI’s customer. The
parties shall mutually agree upon the method of shipment for Products. The
title as well as the risk of the loss or damage to Products shall pass to ANI
from Vyyo at the time of EXW delivery at Vyyo’s facility as defined in
INCOTERMS 2000. Further, for the avoidance of doubt, all shipping and handling
costs incurred to ship the Products to ANI at the location designated by ANI in
the applicable Purchase Order, which may be the premises of ANI’s
customer, will be borne by ANI. In the event of a CIP price quote by Vyyo and
an acceptance of the CIP price quote by ANI, the risk of loss shall pass in
accordance with CIP as defined in INCOTERMS 2000.


 

















 


6.4           ANI
may reschedule Product deliveries in advance of Vyyo’s scheduled
delivery dates as follows:


 


	
  Days prior to original

  	
   

  	
  Rescheduled Product Delivery

  
	
  Product Delivery Date

  	
   

  	
  (“push out”) Dates

  
	
   

  	
   

  	
   

  
	
  0-30

  	
   

  	
  None

  
	
  31-60

  	
   

  	
  up to 15 days from original date

  
	
  61-90

  	
   

  	
  up to 30 days from original date

  
	
  91+

  	
   

  	
  up to 60 days from original date

  



 


provided
however that no rescheduled Product delivery dates shall be permitted if the
effect of such rescheduling is to change the calendar quarter in which such
delivery was originally scheduled.


 


6.5           A
Product delivery date may only be rescheduled (whether in whole or in
part) once from its original Product delivery date, except for the shipment and
delivery dates for the Initial Purchase which may be rescheduled by ANI
more than once provided that ANI shall notify Vyyo of any rescheduled shipping
date for Product covered by the Initial Purchase at least three (3) months
in advance of the scheduled shipping date for such Product and provided further
that 70% of the Products contained in the Initial Purchase are shipped within
2006 and 100% of the Products contained in the Initial Purchase are shipped
within 12 months from the Effective Date.


 


6.6           Upon
ANI’s request Vyyo will use its commercially reasonable efforts to accelerate
Product delivery dates and subject to ANI agreeing to meet any increased costs
as a result of such activity.


 


6.7           ANI
shall have the right to re-sell the Products within the Relevant Territory to
end-users (and only to end-users) in the Relevant Market.


 


6.8           ANI
agrees that following completion of the fourth year of the Term of this
Agreement, ANI shall use all commercially reasonable efforts to re-sell the
Products (or obtain contracts for the provision of services that ANI offers
based on the Products) in the Relevant Territory to end-users in the Relevant
Market. ANI agrees that its commercially reasonable efforts shall include, in
accordance with such priorities as ANI may reasonably establish and
consistent with the size of ANI’s business and then-existing sales force,
seeking to re-sell the Products (or services) throughout the Relevant Territory
and to end-users in all portions of the Relevant Market.


 

















 


ARTICLE 7. ACCEPTANCE TEST


 


7.1           Vyyo
shall provide ANI (or its customers or designees) with the opportunity from
time to time to observe factory processes and procedures with respect to the
Products, upon reasonable advance request and during normal business hours and
subject to normal confidentiality procedures.


 


7.2           Acceptance
Tests:


 


7.2.1        With
respect to the Initial Purchase, ANI shall accept the “A-Band Base Stations” as
and when such base stations are accepted by Great River Energy (“GRE”)
according to the GRE “SAT” field test that was agreed to by Vyyo and GRE (and
reasonably acceptable to ANI). Thereafter, there shall not be any field
acceptance requirements for the Initial Purchase and the Products shall be
deemed accepted when delivered, subject to Sections 7.2.2 (regarding the V-290i
Product) and 7.2.3 (regarding the New Products).


 


7.2.2        With
respect to the V-290i Product, such V-290i Product shall be accepted by ANI at
such time as Vyyo delivers the first V-290i Product to ANI (or its designee)
and demonstrates that such V-290i Product performs in accordance with its
specifications.


 


7.2.3        If
Vyyo develops New Products to be added to Schedules
A-1 or A-2 hereunder, the parties shall agree on an initial purchase
acceptance procedure for such New Products.


 


7.3                           Specifications for
each Product shall be initially generated by Vyyo in the ordinary course
consistent with its customary practices based on the expected performance of
such Product in actual use. If ANI reasonably requests, Vyyo shall provide more
detailed specifications for a Product if such specifications can be provided
through commercially reasonable means, including by addressing types of Product
functionality not part of the original specification for such Product (but
within the then-current design capability of the Product - this requirement to
provide additional detail will not require Vyyo to redesign or modify the
Product).


 


7.4           ANI,
from time to time, either for itself or for its customer, may request that
Vyyo develop new functionality for an existing Product or develop one or more
New Products. In such a case, ANI shall notify Vyyo in writing of such a
request. If Vyyo agrees to develop such new functionality or New Products, Vyyo
will, within a commercially reasonable period, provide ANI with a change
proposal. Such change proposal shall include: (i) the technical changes
required as a result 


 

















 


of the change request; (ii) any corresponding changes in delivery
schedule; (iii) any corresponding change in the price; and/or (iv) the
engineering costs associated with such change request. ANI may at its sole
discretion, approve the change proposal, or reject the change proposal, by
providing written notice thereof to Vyyo. Upon written approval of the change
by the parties, Schedule A-1 and
A-2 as applicable, shall be
amended to reflect the new Product, new specification and/or Price.


 


ARTICLE 8. PAYMENT


 


8.1           As
to all Product purchases, payment shall occur no later than 30 days after the
first day of the calendar month following the date of shipment (as stated in
the related invoice which shall accompany each Product shipment). All Products
shall be shipped in accordance with Article 6. Payments made later than 30
days after the first day of the calendar month following the date of shipment
will be subject to interest at a rate of 15% per year.


 


8.2           All
Payments shall be in U.S. dollars.


 


8.3           All
invoices shall be prepared by Vyyo in good faith and in accordance with this
Agreement. Notwithstanding anything to the contrary herein, if ANI reasonably
disputes any amounts invoiced hereunder in good faith, ANI shall (i) provide
Vyyo with written notice of such dispute, (ii) pay to Vyyo the undisputed
amount, if any, on or before the due date, and (iii) (subject to the
following) shall have the right to place the disputed amount in escrow on or
before the due date rather than paying such amount to Vyyo. The parties shall
use good faith efforts to resolve any such dispute within thirty (30) days, but
at any time either party may refer such matter to expedited arbitration. In
the event that ANI deposited the disputed amount into escrow and it is
determined in such arbitration that such amount was due and owing as invoiced,
the disputed amount shall be released to Vyyo with interest earned while in the
escrow account from the initial due date. If an arbitrator determines more than
once in any two year period that ANI did not have a reasonable basis for any
dispute where ANI deposited the disputed amount into escrow, then ANI shall no
longer have the ability to withhold and deposit into escrow any payments in
accordance with this process. For the avoidance of doubt, an arbitrator’s
finding in favor of Vyyo regarding a disputed amount shall not be automatically
construed to mean that ANI’s dispute was unreasonable nor shall ANI’s use of
the dispute mechanism set forth in this Section 8.3 be deemed a breach of
this Agreement. ANI is not obligated to withhold and escrow payment to dispute
any amount. ANI always has the right to pay any amount when due, dispute such
amount within a reasonable time frame thereafter, and receive a refund of any
improperly invoiced amount. Similarly, if the arbitrator determines more than
once in any two year period that Vyyo did not have a reasonable basis 


 

















 


for the submission of an invoice, then ANI
shall no longer need to deposit payment for a disputed amount into escrow to
dispute an invoice in accordance with this Section.


 


ARTICLE 9. PACKING AND MARKING


 


9.1           Unless
otherwise instructed by ANI in writing, the packing and marking of Products
shall be made for U.S. shipment in accordance with then current Vyyo standard
for shipment, which is and shall be proper and sufficient to withstand all
modes of shipment under normal transportation conditions.


 


9.2           Vyyo
shall not be responsible for any damage or loss caused by any instructed
packing and/or marking by ANI, except to the extent caused by Vyyo’s negligence
or willful misconduct.


 


ARTICLE 10. INSURANCE


 


10.1         ANI
is responsible to arrange and obtain all insurance covering the shipment from
EXW delivery to ANI’s (or ANI’S designated) facilities at ANI’s own cost.


 


10.2         In
the event of an accepted CIP price quote for a Product, Vyyo is responsible to
arrange and obtain all insurance covering the shipment of the Product from the
CIP point of shipment/delivery to ANI’s (or ANI’s designated) facilities.


 


ARTICLE 11. INTELLECTUAL PROPERTY


 


11.1         Nothing
herein contained shall be construed as the transfer or grant of license of any
trade names, trademarks, patents, designs, copyrights and/or any other
intellectual property rights that Vyyo owns in connection with Products or
Services, except for those license rights specifically set forth herein.


 


11.2         In
the event any improvements, revisions, or changes are made to any Products or
in connection with any Services, whether offered by Vyyo or requested and/or
suggested in anyway by ANI, shall be the sole property of Vyyo. At Vyyo’s
discretion, ANI agrees to cooperate in any manner necessary (and at Vyyo’s
expense), including, but not limited to the execution of documents to assign
and/or secure, in Vyyo’s name, any and all Intellectual Property rights related
to such improvements, revisions, or changes. Vyyo hereby grants to ANI a
perpetual, nonexclusive, fully paid-up right and license to use any such
Product improvements, revisions or changes to which ANI is entitled pursuant to
this Agreement (either pursuant to Vyyo’s warranty obligations or through the
purchase of applicable Maintenance Services) and the results of any such
Services as necessary to use, operate, maintain and support the Products as
permitted 


 

















 


herein or for any other purpose for which
they were developed, with the right to sublicense any such rights (i) to
ANI’s customers that use the Product in connection with products and services
provided by ANI or to any one that purchases the Product directly from ANI, and
(ii) to third party agents of ANI that assist ANI in connection with the
Product.


 


ARTICLE 12.
WARRANTY


 


12.1         Limited
Warranty. Vyyo warrants that the Products sold by it hereunder shall be
free of defects in materials and workmanship and shall perform in
accordance with their specifications for a period of eighteen (18) months from
the date of delivery. Vyyo’s obligations under this limited warranty are
limited to promptly and on a priority basis replacing or repairing any Product
which fails to conform to this warranty. Vyyo shall not be responsible for
any warranty failures caused by misuse, neglect, improper installation, repair,
alteration or accident relating to the applicable Product which is material and
not consistent with ordinary wear and tear, unless caused by any act or
omission of Vyyo, its agents or employees. Any Product which has either been
repaired or replaced by Vyyo under the terms of the warranty provisions of this
Agreement shall have warranty coverage for the greater of (i) three (3) months
from the date of return to ANI, or (ii) the remaining warranty period
calculated from the date of original delivery. ANI will pay transportation and
insurance costs to ship the Products to the repair depot designated by Vyyo. Vyyo
will reimburse ANI for such costs and pay the transportation cost of returning
Products if the Products, or a component of the Products, were defective. If a
Product is determined to be out of warranty or not defective, Vyyo will
promptly advise ANI and, if repairable, offer to repair the Product at Vyyo’s
standard out-of-warranty rates as set forth on Schedule C, all shipping to be paid by ANI.


 


Vyyo warrants that all Services performed
pursuant to this Agreement shall be performed in a professional and workmanlike
manner, by experienced individuals, and in accordance with generally accepted
industry standards.


 


12.2         Limitations
and Exclusions. THE WARRANTY PROVIDED IN THIS AGREEMENT IS PERSONAL TO ANI
AND IS A LIMITED WARRANTY, BUT IT MAY BE ASSIGNED BY ANI TO ANY CUSTOMER
OF ANI OR ANY TRANSFEREE OF SUCH PRODUCT. IT IS THE ONLY WARRANTY MADE BY VYYO
TO ANI. VYYO MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, AND ALL WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED.


 

















 


12.3         Limitation
of Liability. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, AND
WHETHER ASSERTED BY ANI OR ANY OTHER THIRD PARTY UNDER CONTRACT, STRICT OR
PRODUCT LIABILITY, ACTIVE OR PASSIVE NEGLIGENCE, OR OTHER TORT CLAIMS, OR
OTHERWISE:  (i) EXCEPT FOR VYYO’S
INDEMNITY OBLIGATIONS HEREUNDER AND VYYO’S OBLIGATIONS TO REPAIR OR REPLACE
PRODUCTS, VYYO’S LIABILITY AND OBLIGATION IN ANY WAY RESULTING OR ARISING FROM
OR RELATING TO THE PRODUCTS SOLD OR SERVICES PROVIDED TO ANI UNDER THIS
AGREEMENT SHALL IN NO EVENT EXCEED THE CUMMULATIVE TOTAL AMOUNTS PAID BY ANI
FOR THE PRODUCTS FROM THE EFFECTIVE DATE OR $10,000,000.00
IN THE AGGREGATE, WHICHEVER IS LESS; AND (ii) NEITHER PARTY
SHALL BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR, BUSINESS INTERRUPTION,
LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF DATA OR TRANSMISSIONS, LOSS OF
CUSTOMERS, OR OTHER INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL
DAMAGES OF ANY KIND WHATSOEVER, RESULTING OR ARISING FROM OR RELATING TO THIS
AGREEMENT OR THE PRODUCTS AND WHETHER OR NOT THE OTHER PARTY IS ADVISED OF THE
POSSIBILITY OF ANY OF THE FOREGOING. EACH PARTY WAIVES ALL REMEDIES FOR BREACH
OR NONPERFORMANCE BY THE OTHER PARTY TO THE EXTENT INCONSISTENT WITH THE
FOREGOING. NOTHING IN THIS AGREEMENT OR IN ANY OTHER AGREEMENT BETWEEN VYYO AND
ANI RELATING TO THE PRODUCTS OR ANY SERVICES SHALL BE CONSIDERED FOR THE
BENEFIT OF ANY THIRD PARTY OR AS GIVING ANY THIRD PARTY ANY RIGHTS AGAINST
EITHER PARTY.


 


ARTICLE 13.
INFRINGEMENT AND OTHER INDEMNIFICATION


 


13.1         If a third party raises a
claim of an alleged infringement of patent, trade name, trademark, design,
copyright or any other intellectual property rights against ANI or any ANI
customer in connection with the Products, ANI shall:


 


(a)           inform Vyyo
promptly of such claim,


(b)           not,
of its own accord, admit or settle such claim, and


(c)           provide
reasonable assistance to Vyyo, at Vyyo’s expense, to defend against such claim,
and


(d)           act
only in accordance with written instructions of Vyyo with respect to such
claim.


 

















 


13.2         In
case of a claim set forth in this article 13, Vyyo will at its own cost
and expenses:


 


(a)           defend
against such claim and indemnify and hold ANI and its affiliates, directors,
officers, employees, agents and direct customers harmless from and against any
and all damages, losses, liabilities, costs, expenses and fees incurred in
connection with any such claim (including reasonable attorneys’ fees), and


(b)           acquire
the right for ANI and ANI’s customers to continue to use such Product,
including without limitation by obtaining any necessary patent licenses from
the person or company entitled to enforce such patent, or


(c)           modify
the Product so as to become non-infringing provided that such modified Product
maintains substantially the same functionality as the original Product.


 


13.3         Vyyo
shall have no liability in the case of a patent infringement which results from
modification made by ANI in or to the Products or from the combination of
Products with other product not sold hereunder.


 


13.4         Each
party shall indemnify and hold the other party and its affiliates, directors,
officers, employees, agents and customers harmless from and against any and all
damages, losses, liabilities, costs, expenses and fees (including reasonable
attorneys’ fees) arising out of or resulting from any third party claim caused
by personal injury or physical property damage caused by the negligence or
willful misconduct of such party or its employees or agents.


 


13.5         Vyyo
shall obtain and maintain in effect the insurance coverage set forth in Exhibit 13.5.


 


ARTICLE 14.
CONFIDENTIALITY


 


14.1         All
non-public documentation, technical information, software, business
information, or other materials that are disclosed by one party (the “Disclosing
Party”) to the other (the “Receiving Party”) in the course of
performing this Agreement shall be considered the proprietary information (“Proprietary
Information”) of the Disclosing Party, provided that such information is
identified or marked as confidential at the time of disclosure or otherwise
should be reasonably understood by the Receiving Party to be confidential to
the Disclosing Party based upon the manner and means of disclosure or the type
of information or materials disclosed.


 


14.2         The
Receiving Party shall: (a) hold the Disclosing Party’s Proprietary
Information in strict confidence; (b) use the Disclosing Party’s
Proprietary Information solely 


 

















 


for the purposes of performing this
Agreement; and (c) not disclose the Disclosing Party’s Proprietary
Information except to the Receiving Party’s employees and agents having
a need-to-know such information for purposes of performing this Agreement and
provided that such employees and agents are bound by written obligations of
confidentiality with respect to such Proprietary Information that are
comparable to those set forth herein).


 


14.3         The
restrictions set forth in this Article 14
shall not apply to any information that (i) is independently developed by
the Receiving Party without use of the Disclosing Party’s Proprietary
Information; (ii) is lawfully received by the Receiving Party free of any
obligation to keep it confidential; or (iii) is or becomes generally
available to the public other than by breach of this Agreement. In addition,
either party may disclose the other party’s Proprietary Information to the
extent required by law or regulation provided that, prior to disclosure, the
Receiving Party provides written notice to the Disclosing Party to the extent
legally permissible and practicable so that the Disclosing Party may seek a
protective order or other limitations on disclosure.


 


ARTICLE 15.
TERM AND TERMINATION


 


15.1         This
Agreement shall become effective as of the Effective Date and shall remain in
effect for a period of ten (10) years (the “Initial Term”). Thereafter,
this Agreement may be renewed by the mutual written agreement of the
parties. The Initial Term and any renewal term shall collectively be referred
to as the “Term”.


 


15.2         ANI
may terminate this Agreement in the event of a material breach of the
terms and conditions contained in this Agreement by Vyyo following ANI sending
notice in writing to Vyyo demanding that Vyyo rectify any breach specified in
the said notice within sixty (60) days from the date of receipt of such notice
and failure of Vyyo to rectify such breach. Following receipt of any such
proposed termination notice, the parties shall attempt in good faith to reach
agreement with respect to the cure of the matter underlying the material
breach, and upon reaching such agreement and such cure being effected, the
notice of termination shall be deemed rescinded and of no further force or
effect. If such material breach is not rectified within such period, and no
agreement is reached by the parties to defer or cancel such termination, ANI may effect
termination of this Agreement by giving Vyyo another written notice specifying
the date on which the termination is to take effect.


 


15.3         During
the first two years of the Term, in consideration of ANI making a substantial
up-front payment for the exclusive rights granted pursuant to Article 18.2 hereof, Vyyo may suspend
performance, but may not terminate this 


 

















 


Agreement, in
the event of a material breach of the terms and conditions contained in this
Agreement by ANI. Thereafter, Vyyo may terminate the Agreement in the
event of a material breach of the terms and conditions contained in this
Agreement by ANI. Any such suspension or termination, as applicable, for
material breach shall follow Vyyo sending notice in writing to ANI demanding
that ANI rectify any breach specified in the said notice within sixty (60) days
from the date of receipt of such notice and failure of ANI to rectify such
breach. Following receipt of any such proposed suspension or termination
notice, as applicable, the parties shall attempt in good faith to reach
agreement with respect to the cure of the matter underlying the material
breach, and upon reaching such agreement and such cure being effected, the
notice of suspension or termination, as applicable, shall be deemed rescinded
and of no further force or effect. If such material breach is not rectified
within such period, and no agreement is reached by the parties to defer or
cancel such termination or suspension, Vyyo may effect termination or
suspension, as applicable, of this Agreement by giving written notice to ANI
specifying the date on which such suspension or termination is to take effect.


 


15.4         Either
party may terminate this Agreement at any time if insolvency or
reorganization proceedings or any other proceedings analogous in nature or
effect are instituted by or against the other party hereto, the other party is
dissolved or liquidated whether voluntarily or involuntarily, a receiver or
trustee is appointed for all or a substantial part of the assets of the
other party or the other party makes an assignment for the benefit or
creditors.


 


ARTICLE 16. EFFECT OF TERMINATION


 


16.1         No
expiration or termination of this Agreement shall release either party from any
liability that at such time has already accrued to the other party, or in any
way affect the survival of any right, duty or obligation of either party that
is contemplated to be performed as of the date of or after such expiration or
termination.


 


ARTICLE 17. LICENSING AND ESCROW


 


17.1         Vyyo
hereby grants to ANI a perpetual, nonexclusive, fully paid-up right and license
to use any Software provided in connection with a Product as necessary to use,
operate, maintain and support such Product, with the right to sublicense any
such rights (i) to ANI’s customers that use the Product in connection with
products and services provided by ANI or to any one that purchase the Product
directly from ANI, and (ii) to third party agents of ANI that assists ANI
in connection with the Product. ANI agrees that it will not sublicense the
Software provided in connection with the Products except as permitted in (i) or
(ii) above, 


 

















 


without Vyyo’s prior written consent. ANI
agrees not to reverse engineer, disassemble or decompile the Software.


 


17.2         Within
two business days after the execution of this Agreement, the parties shall
execute the Escrow Agreement set forth on Schedule D
among themselves and an independent escrow agent selected by mutual agreement
of the parties. The Escrow Agreement will require Vyyo to place on deposit with
the escrow agent complete engineering design documentation, software source
code and manufacturing documentation relating to the Products and any vendor
authorization (such materials collectively called the “BOM Documentation”)
reasonably required for ANI to acquire tooling and components and to
manufacture the Products (including any Software) with minimal delay. The
escrow agreement shall also require Vyyo to update the deposited materials on
an annual basis or more frequently if there is a change in any Product or Software
to include any updates or upgrades to same.


 


17.3         In
the event Vyyo ceases to manufacture the Products for any reason or Vyyo is in
material breach of this Agreement then ANI may, without in any manner limiting
its legal and equitable remedies in the circumstances, serve upon Vyyo a
written notice requiring Vyyo to continue to manufacture the Products or cause
such default to be corrected forthwith, and ANI shall be entitled to specific
performance therefor. Unless within ten business days after the service of such
notice upon Vyyo such default shall be corrected or arrangements for the
correction thereof reasonably satisfactory to ANI shall be made, ANI shall be
entitled to the remedies set forth in the Escrow Agreement and ANI shall
possess a perpetual, non-exclusive, royalty-free fully-paid up license under
all Vyyo intellectual property (other than trademarks) to develop, have
developed, manufacture, have manufactured, use and sell the Products and to
sublicense the Software. Vyyo agrees that ANI shall have the right to designate
third party customers of ANI as beneficiaries of the escrow agreement entitled
to receive the deposited materials under the escrow agreement and to have the
same license under Vyyo intellectual property.


 


ARTICLE 18. EXCLUSIVITY


 


18.1         During
the Term of this Agreement, so long as ANI (i) pays the Exclusivity Amount
for the first two years, and (ii) meets the Minimum Product Purchase
Amounts and (iii) for the first two (2) years has no undisputed
outstanding invoice payment to Vyyo hereunder which is larger than $2,000,000
for more than 90 days after the required payment date and after the first two (2) years of the Term has no undisputed outstanding invoice
payment to Vyyo hereunder which is larger than $250,000 for more than 90 days
after the required payment date, Vyyo shall be prohibited from selling Products
(i) in the Relevant Territory and (ii) to the 


 

















 


Relevant
Market. Further, for the avoidance of doubt, nothing in this Agreement shall
prohibit Vyyo from (i) selling Products outside of the Relevant Territory;
(ii) selling Products within the Relevant Territory to end users or
resellers other than those engaged in the Relevant Market (and without limiting
the foregoing but for the avoidance of doubt cable television customers are not
considered to be engaged in the Relevant Market); and (iii) selling
non-wireless products or non-wireless equipment other than the Products within
the Relevant Territory to end users or resellers in the Relevant Market.


 


18.2         For
purposes of this Agreement, the term “Relevant Territory” shall mean the United
States, Canada and the Gulf of Mexico (whether deemed U.S. or Mexican
territorial waters).


 


18.3         For
purposes of this Agreement, the term “Relevant Market” shall mean end users
engaged in or resellers selling long range data communications products to the following
businesses, industries or governmental functions:  (i) electricity generation, transmission
or distribution (both downstream and upstream); (ii) oil or gas
exploration, manufacture, transportation or distribution; (iii) water
utility; (iv) chemical manufacture; (v) mining; (vi) environmental
monitoring or protection; (vii) transportation facilities (including
railroads); (viii) border control, and (ix) public safety (e.g., police, fire departments, rescue,
but not general public communications such as broadband internet, cable,
consumer level entertainment, etc.).
Vyyo shall use commercially reasonable efforts to ensure that any sale of its
products to resellers within the Relevant Territory are not intended for resale
to end users within the Relevant Market.


 


ARTICLE 19. ASSIGNMENT


 


19.1         Vyyo
may assign its rights and obligations under this Agreement and/or any
individual Purchase Order without ANI’s consent including, without limitation,
in whole or in part, to any affiliate or successor in interest of Vyyo or in
connection with any financing, in each case upon prior written notice to ANI;
provided that any such assignee of Vyyo’s obligations is reasonably capable of
fulfilling Vyyo’s obligations under this Agreement. If Vyyo consummates a
transaction or series of transactions whereby its wireless assets and/or
business are assigned or otherwise transferred to a successor in interest, this
Agreement must be assigned to such successor in interest. If this Agreement is
assigned or otherwise transferred to a successor in interest of Vyyo’s wireless
assets and/or business, the exclusivity provisions of Section 18 and the intellectual
property licenses from Vyyo in Sections 11 and 17 of this Agreement shall apply
only to that portion of Vyyo’s wireless assets and/or business that has been
assigned or transferred (including any updates, upgrades, modifications and
enhancements thereto), and such exclusivity provisions shall not apply to any
other assets or business or 


 

















 


intellectual
property of the successor in interest or of the remaining businesses of Vyyo. ANI
may assign its rights and obligations under this Agreement and/or any
individual Purchase Order without Vyyo’s consent including, without limitation,
in whole or in part, to any affiliate or successor in interest of ANI or in
connection with any financing, in each case upon prior written notice to Vyyo,
and also to any third party (including any ANI customer); provided that any
such assignee of ANI’s obligations is reasonably capable of fulfilling ANI’s
obligations under this Agreement. Except as provided in this paragraph, neither
party may, in whole or in part assign this Agreement hereunder nor any
rights or obligations created there under without the prior written consent of
the other party. Any assignment in violation of this Article shall be null
and void and of no effect between the parties.


 


ARTICLE 20. FORCE MAJEURE


 


20.1         Neither
party shall be responsible for failure or delay to comply with this Agreement
and/or any individual Purchase Order hereunder, in case such failure or delay
is caused by any acts that are beyond their reasonable control and the parties
hereto have used their best endeavor to carry out their obligation under this
Agreement.


 


ARTICLE 21. RESOLUTION OF DISPUTE


 


21.1         Any
dispute arising out of or relating to this Agreement which can not be resolved
within a reasonable time directly by the parties shall be settled by
arbitration, by a panel of three (3) arbitrators (unless otherwise agreed
by the parties) in accordance with the Rules & Regulations of the
American Arbitration Association (“AAA”), and judgment upon the award rendered
by the arbitrator(s) may be entered in any court having jurisdiction
thereof. Each party shall select one arbitrator and those arbitrators shall
select the third arbitrator. If they cannot agree on the third arbitrator, then
such arbitrator shall be selected by the AAA. The location of any such
arbitration shall be New York, New York. All discussions and correspondence
among the representatives, during said arbitration shall be treated as
confidential information, exempt from discovery, and shall not be admissible in
any lawsuit without the agreement of the parties. The cost of the arbitration,
including the fees and expenses of the arbitrator(s), shall be shared equally
by the parties unless the arbitration award provides otherwise. Each party
shall bear the cost of preparing and presenting its case. The arbitrator(s) are
not empowered to award damages in excess of compensatory damages and each party
irrevocably waives any damages in excess of compensatory damages. The parties
agree to undertake all reasonable steps to expedite the arbitration process.
Judgment upon any award rendered by the arbitrator may be entered in any
court having jurisdiction.


 

















 


ARTICLE 22. NOTICE


 


22.1         All
notices, Purchase Orders, acceptances thereof, requests, demands, claim letters
and other communications to be given or made under this Agreement or individual
Purchase Orders hereunder shall be given by airmail, telex or facsimile
addressed to the party to be notified at the addressed and to the attention as
set


forth below :


 


	
  If to Vyyo:

  	
  Vyyo Inc.

  
	
   

  	
  4015 Miranda Ave., First Floor

  
	
   

  	
  Palo Alto, CA 94304

  
	
   

  	
  Attention

  	
  :

  
	
   

  	
  Telephone

  	
  :

  
	
   

  	
  Facsimile

  	
  :

  
	
   

  	
   

  
	
  With a copy to:

  	
  Vyyo Inc.

  
	
   

  	
  4015 Miranda Ave., First Floor

  
	
   

  	
  Palo Alto, CA 94304

  
	
   

  	
  Attention:

  	
  General Counsel

  
	
   

  	
  Telephone:

  	
  650.319.4021

  
	
   

  	
  Facsimile:

  	
  650.319.4022

  
	
   

  	
   

  
	
  If to ANI:

  	
  Arcadian Networks, Inc.

  
	
   

  	
  26 Broadway

  
	
   

  	
  21st Floor

  
	
   

  	
  NY, NY 10004

  
	
   

  	
  Attn:  Gil Perez, CEO

  
	
   

  	
   

  
	
  With a copy to:

  	
  Arcadian Networks, Inc.

  
	
   

  	
  26 Broadway

  
	
   

  	
  21st Floor

  
	
   

  	
  NY, NY 10004

  
	
   

  	
   

  
	
   

  	
  Attn: Andrew Fradkin, General
  Counsel

  



 


or to
such other address or addresses as the respective party hereto may designate
from time to time. Such notices shall be considered to have been sufficiently
given on the fifth ( 5th ) business day following transmission, if
by mail, and on the next business day if by telex or facsimile.


 

















 


ARTICLE 23. LAW APPLICABLE


 


23.1         This Agreement and each individual
Purchase Order hereunder shall be governed by and construed in accordance with
the laws of the State of New York, excluding its conflicts of law principles
(other than Section S-1401 of the New York General Obligations Law).


 


ARTICLE 24. SEVERABILITY AND
PUBLICITY


 


24.1         The parties hereto agree that invalidity
or unenforceability of any of the provisions, in part or in whole of this
Agreement or any individual Purchase Order hereunder shall not in any way
affect the validity or enforceability of any other parts or provisions thereof
except those which comprise an integral part of or those which are
otherwise clearly inseparable from such invalid or unenforceable parts or
provisions.


 


24.2         Neither party shall issue any press
release, public announcement, news release or, except as may be required
by law, any other public announcement, written or oral, whether to the public
press, stockholders or otherwise, relating to this Agreement, any amendment
hereto or performance hereunder, or use the other party’s trademark, trade
name, service mark and domain name, and any visual representations thereof
(including logos, designs, symbols, word marks, images, colors and color
combinations, trade dress and characters) in any publicity, news release or
other public announcement without the written consent of the other party, which
written consent shall not be unreasonably withheld.


 


24.3         Vyyo shall ensure that all Products sold
to ANI under this Agreement contain the “Arcadian Networks” name and logo in
the manner and format reasonably designated by ANI, provided that ANI agrees to
pay for any additional costs associated with inclusion of such name and/or logo
as notified by Vyyo to ANI in advance of expenditure. Vyyo shall ensure that
the “Dallager” name and logo does not appear on any of the Products.


 


ARTICLE 25. COMPLIANCE
WITH LAWS


 


25.1         In connection with this Agreement, each
party will comply with all laws, rules and regulations applicable to its
business. As between the parties, ANI shall be responsible to obtain and
maintain in effect all permits, licenses and approvals required for ANI to
operate a communications network and to act as a communications service
provider, including without limitation any required FCC spectrum licenses. As
between the parties, Vyyo shall be responsible to obtain and maintain in effect
all permits, licenses and approvals required for Vyyo to manufacture, sell and
distribute the Products and to provide the Services. Vyyo 


 

















 


shall
ensure that all Products which are required to comply with FCC regulations
comply with such regulations, including without limitation the obtaining of any
required approvals needed before commercial sale of the Products, and are
properly labeled in compliance with FCC and other applicable laws, except those
specifically set forth on Schedule A-1 or A-2.


 


ARTICLE 26. RE-BANDING


 


Vyyo acknowledges that ANI’s spectrum lessor(s) may seek to “re-band”
the existing “A band” by replacing it with another band in the upper 700-MHz
spectrum as required by law or otherwise (the “New Band”). In the event of any
such “re-banding” during the first three (3) years of the Agreement, and
solely to the extent that ANI is required (by contract or law) to support such “re-banding,”
and to the extent that ANI requests it from Vyyo during the first three (3) years
of the Agreement, Vyyo agrees to use all commercially reasonable efforts to
develop Product re-banding kits and Spare Parts (“Product Re-Banding Kits”) for
Products that have been purchased by ANI that when applied to such Products
will allow ANI to utilize the  New Band in a manner
consistent with the use of the “A-band” and that will comply with the FCC
regulations for the New Band. The Product Re-Banding Kits will be added to
Schedules A-1 and A-2 and shall be subject to the terms of this Agreement. Vyyo
agrees to take into account “re-banding” requirements while developing New
Products in the first three (3) years of the Agreement with the intention
to reduce Product Re-banding Kits cost. The parties will work together in good
faith, with such advance notice to each other as can reasonably be given under
the circumstances, to minimize the costs of such “re-banding”  and of services outages, delays or other
similar effects resulting from implementation of a Re-banding. Each party shall
bear one-half of the direct costs of efforts dedicated specifically and
exclusively to developing Product Re-Banding Kits and incurred from and after
the Effective Date of this Agreement, provided that ANI’s share of such
expenses shall not exceed an aggregate amount of $500,000. In any event, Vyyo
shall provide ANI in writing in advance a description of all such development
efforts to be undertaken by Vyyo, and shall provide to ANI an itemized list of
all such costs incurred within [60] days after they are incurred. In the event
that any such re-banding occurs after the first three (3) years of the
Agreement, the parties shall discuss in good faith any support in connection
therewith to be provided by Vyyo and the fees relating thereto.


 


ARTICLE 27. ENTIRE
AGREEMENT


 


27.1         This Agreement contains the entire
agreement between both parties concerning the subject matter hereof and
supersedes all previous negotiations, commitments and writings in respect to
such subject matter and no provision of this Agreement 


 

















 


may be waived, modified or amended, in whole or in part, except by
a writing executed by duly authorized representatives of both parties.


 

















 


IN WITNESS
WHEREOF,
the parties hereto have caused this Agreement to be executed as of the day and
year first above written, by their duly authorized representatives.


 


 


	
  Signed for and on behalf of VYYO INC.

  
	
   

  
	
   

  
	
  Signature

  	
  : /s/ Arik Levi

  	
   

  
	
  Name

  	
  : Arik Levi

  
	
  Title

  	
  : CFO

  
	
  Date

  	
  : 3/31/2006

  
	
   

  	
   

  
	
   

  	
   

  
	
  Signed for and on behalf of ARCADIAN NETWORKS INC.

  
	
   

  
	
   

  
	
  Signature

  	
  : /s/ Gil Perez

  	
   

  
	
  Name

  	
  : Gil Perez

  
	
  Title

  	
  : President & CEO

  
	
  Date

  	
  : 3/31/06

  



 

















 


Schedule A-1


Product list and Pricing


 


Products shall be uniquely
identified by their Vyyo Part Number (P/N).


 


	
   

  	
   

  	
  P/N

  	
   

  	
  Description

  	
   

  	
  Price per unit*

  
	
  1

  	
   

  	
  4KT0001-A

  	
   

  	
  Single Sector Band A Base
  Station

  	
   

  	
  $***

  
	
  2

  	
   

  	
  4KT0004-A

  	
   

  	
  Dual Sector Band A Base
  Station

  	
   

  	
  $***

  
	
  3

  	
   

  	
  4KT0007-A

  	
   

  	
  Triple Sector Band A Base
  Station

  	
   

  	
  $***

  
	
  4

  	
   

  	
  4RF0037-A

  	
   

  	
  Dual panel, tuned sector
  directional vertical antenna with mounting kit

  	
   

  	
  $***

  
	
  5

  	
   

  	
  4RF0056-A

  	
   

  	
  Dual panel, tuned sector
  directional horizontal antenna with mounting kit

  	
   

  	
  $***

  
	
  6

  	
   

  	
  4RF0033-A

  	
   

  	
  Vertical Omni Antenna with
  mounting Kit

  	
   

  	
  $***

  
	
  7

  	
   

  	
  4RF0057-A

  	
   

  	
  Antenna Bracket

  	
   

  	
  $***

  
	
  8

  	
   

  	
  9VY002-A

  	
   

  	
  V290i

  	
   

  	
  $***

  
	
  9

  	
   

  	
  4RF0054-A

  	
   

  	
  CPE Yagi antenna

  	
   

  	
  $***

  
	
  10

  	
   

  	
  4RF0050-A

  	
   

  	
  CPE flat antenna

  	
   

  	
  $***

  



 






*** Denotes language for which Vyyo Inc. has requested
confidential treatment pursuant to the rules and regulations of the
Securities Exchange Act of 1934, as amended


 

















 


Each base station purchased by
ANI hereunder shall be shipped with the results of the Factory Acceptance
Test(s) performed on such base station.


 


Each V290i provided by Vyyo
hereunder shall perform in accordance with the following performance
metrics:


 


	
  Layer 3
  Throughput(2)

  	
  Downstream: 1 Mbps

  
	
   

  	
  Upstream: 200 Kbps

  
	
  Round trip
  delay (Ethernet)(3)

  	
  90 ms

  
	
  Round trip
  delay (Serial)(4)

  	
  170 ms

  



 


Under the following conditions:


 


	
  Sector
  configuration

  	
   

  	
  Downstream: 330 KHz @ 64QAM

  Upstream: 325 KHz @ 16QAM

  
	
   

  	
   

  	
   

  
	
  Radio link
  quality

  	
   

  	
  Downstream RF SNR: 27 dB

  Upstream RF SNR(5): 24 dB

  
	
   

  	
   

  	
   

  
	
  Number of
  active modems / sector

  	
   

  	
  1

  
	
   

  	
   

  	
   

  
	
  Demarcation
  points

  Base station side

   

  CPE side

  	
   

  	
   

  WMTS Ethernet port connected
  to 

  the backbone network

  V290iA Ethernet port

  
	
   

  	
   

  	
   

  
	
  Configuration

  	
   

  	
  V290iA default configuration:

  Single best effort serviceNo classification, filters, firewall or other per
  packet functionality

  



 






(2) Tested with DOS FTP
running on Windows 2003 server


(3) Round trip delay is
tested as the average time of at least 10 measurements of ICMP ECHO (PING) with
smallest packet size,


(4) Additional latency is
introduced by the serial port


(5) RF SNR measured at the
receiver input


 

















 


Schedule A-2


Spare Parts list and Pricing


 


Spare Parts shall be uniquely
identified by their Vyyo Part Number (P/N).


 


	
   

  	
   

  	
  P/N

  	
   

  	
  Description

  	
   

  	
  Price*

  
	
  1

  	
   

  	
  4RF0036-A

  	
   

  	
  Up converter

  	
   

  	
  $***

  
	
  2

  	
   

  	
  4RF0010-A

  	
   

  	
  Down convertor (Cadco)

  	
   

  	
  $***

  
	
  3

  	
   

  	
  9 VY0003-A

  	
   

  	
  V3100-A Down Converter (Vyyo)

  	
   

  	
  $***

  
	
  4

  	
   

  	
  4RF0035-A

  	
   

  	
  40 Watts Power amplifier

  	
   

  	
  $***

  
	
  5

  	
   

  	
  4RF0034-A

  	
   

  	
  UHF combiner/splitter (Diplexer)

  	
   

  	
  $***

  
	
  6

  	
   

  	
  4GN0010-A

  	
   

  	
  RCU

  	
   

  	
  $***

  
	
  7

  	
   

  	
  4GN0011-A

  	
   

  	
  Uninterrupted power supply (UPS)

  	
   

  	
  $***

  
	
  8

  	
   

  	
  4RF0039-A

  	
   

  	
  Band Pass Filter

  	
   

  	
  $***

  
	
  9

  	
   

  	
  4RF0041-A

  	
   

  	
  First stage preamplifier

  	
   

  	
  $***

  
	
  10

  	
   

  	
  4RF0040-A

  	
   

  	
  Second stage preamplifier

  	
   

  	
  $***

  
	
  12

  	
   

  	
  4RF0042-A

  	
   

  	
  Multy Sector Modem Sample Port

  	
   

  	
  $***

  
	
  13

  	
   

  	
  6290-070

  	
   

  	
  Band-A base station monitoring modem

  	
   

  	
  $***

  
	
  14

  	
   

  	
  7290-4200-01

  	
   

  	
  WMTS IP AC 200W

  	
   

  	
  $***

  
	
  15

  	
   

  	
  3290-610

  	
   

  	
  UC Card

  	
   

  	
  $***

  
	
  16

  	
   

  	
  3290-616

  	
   

  	
  Hex Card

  	
   

  	
  $***

  
	
  17

  	
   

  	
  3290-617

  	
   

  	
  Quad Card

  	
   

  	
  $***

  
	
  18

  	
   

  	
  3290-618

  	
   

  	
  Host Master

  	
   

  	
  $***

  
	
  19

  	
   

  	
  1191-030

  	
   

  	
  PS 200W

  	
   

  	
  $***

  



 






*** Denotes language for which Vyyo Inc. has requested
confidential treatment pursuant to the rules and regulations of the
Securities Exchange Act of 1934, as amended


 

















 


Schedule A-3


New Product Pricing Procedure


 


For a New Product (not
including a Spare Part) added to Schedule A-1
after the Effective Date, and except as set forth below with
respect to Product Re-Banding Kits the following process will apply:


 


The parties will jointly engage
an Independent Party to determine the initial New Product Price for any New
Product added to Schedule A-1
after the Effective Date. Such Price shall be determined as follows: (i) the
“Product’s Average Gross Margin” shall be calculated as Vyyo’s average gross
margin for all Schedule A-1
Products other than the NMS or other Software for the calendar year preceding
the year in which the New Product was added to Schedule A-1, (ii) The
“New Product Cost” shall be Vyyo’s cost of manufacturing or procuring the New
Product, (each of (i) and (ii), as determined by the Independent Party),
and (iii) the New Product Price shall be calculated by dividing the New
Product Cost by [one (1) minus the Product’s Average Gross Margin].

Example: Assume that the New Product Cost is $130 and that the Products Average
Gross Margin is 35%. The Price for the New Product shall be equal to $130
divided by (1-.35) or $200.


 


Notwithstanding the foregoing the “Product’s Average Gross Margin” for
Product Re-Banding Kits is set to 35%.


 


For a New Spare Part added
to Schedule A-2 after the
Effective Date, and except as set forth below with respect to
Product Re-Banding Kits the
following process will apply:


 


The parties will jointly engage
an Independent Party to determine the initial new Spare Part Price for any
new Spare Part added to Schedule A-2
after the Effective Date. Such Price shall be determined as follows: (i) the
“Spare Part’s Average Gross Margin” shall be calculated as Vyyo’s average gross
margin for all Schedule A-2 Spare
Parts for the calendar year preceding the year in which the New Spare Part was
added to Schedule A-2, and (ii) The “New Spare Part Cost” shall
be Vyyo’s cost of manufacturing or procuring the New Spare Part, (each of (i) and
(ii), as determined by the Independent Party), and (iii) The New Spare Part Price
shall be calculated by dividing the New Spare Part Cost by [one (1) minus
the Products Average Gross Margin minus 5%].

Example: Assume that the New Product Cost is $75 and that the Products Average
Gross Margin is 20%. The Price for the New Product shall be equal to $75
divided by (1 -.20 -.05) or $100.


 


Notwithstanding the foregoing the “Spare Part’s Average Gross Margin”
for Product Re-Banding Kits is set to 35%.


 

















 


The parties shall instruct such
Independent Party to make a determination as to Price within thirty (30) days.
Vyyo will reasonably cooperate with such Independent Party to provide any
records, books and information deemed necessary by such Independent Party to
make the determination required herein. The Independent Party shall be subject
to reasonable obligations of confidentiality with respect to such books,
records and information. The determinations of the Independent Party shall be
binding on the parties unless there is a manifest error in such determinations.
If either party reasonably believes that the Independent Party committed such
an error, such party can request the Independent Party to promptly reexamine
the matter, and if an error has been committed, the Independent Party shall
make the appropriate correction. The fees and expenses of the Independent Party
shall be borne 50%/50% by ANI and Vyyo.


 


“Independent Party” shall mean
Duff & Phelps or any other accounting, financial consulting or similar
firm reasonably capable of reviewing Vyyo’s financial records and making a
determination regarding Vyyo’s costs and profits margin relating to a Product
that has not performed a significant amount of work for ANI or Vyyo, as
selected by the parties from time to time.


 

















 


Schedule B-1


Minimum Product Purchase Amounts


 


The “Minimum Product Purchase
Amount” for each year of the Term shall have the following meaning:


 




	
  Year

  	
   

  	
  Minimum Product

  Purchase Amount

  
	
  Year 1

  	
   

  	
  $***

  
	
  Year 2

  	
   

  	
  $***

  
	
  Year 3

  	
   

  	
  $***

  
	
  Year 4 (and +)

  	
   

  	
  $***

  






 


The Minimum Product Purchase
Amount relates only to purchases of Products and is used in this Agreement
solely to determine ANI’s exclusivity rights in relation to the Products and
does not represent a commitment by ANI to purchase Products in any particular
amount.


 


The Minimum Product Purchase
Amounts set forth above are non-cumulative except as follows:  in the event ANI submits accepted Product
Purchase Orders for Products with shipment dates designated in a given year
(provided such shipment dates are not pushed back by ANI) for an amount in
excess of the Minimum Product Purchase Amount for such  year, such excess shall “roll over” to the
next successive year, provided however that such amount rolled over shall not
exceed 25% of such successive year’s Minimum Product Purchase Amount (the
result being that the successive year’s Minimum Product Purchase Amount will be
no less than 75% of the amount stated above). For the avoidance of doubt, the “roll
over” only applies for the immediate successive year and cannot serve to create
or increase a “roll over” for the next year. For purposes of example only:  if the Product Purchase Amount for year 1 is
equal to $20.0, $2.5 million would roll over (25% of the year 2 Minimum Product
Purchase Amount). If the accepted Product Purchase Orders with shipment dates
designated in year 2 equaled $9 million, the minimum in year 2 would be
satisfied due to the roll over from year 1, but no amount would roll over to
year 3.


 


In order to maintain its
exclusivity rights hereunder, ANI shall purchase at least 25% of the Minimum
Product Purchase Amount for each year within the first half of such applicable
year. The parties acknowledge and agree that the 25% in the foregoing sentence
shall instead equal 32% for any year if ANI purchases in the preceding year
more than fifteen percent (15%) of products with similar functionality to the
Products from a third party. For purposes of this paragraph, the term “purchase”
shall mean 


 

















 


submission by ANI of accepted
Product Purchase Orders for Products with shipment dates designated for the
first half of such applicable year.


 






*** Denotes language for which Vyyo Inc. has requested
confidential treatment pursuant to the rules and regulations of the
Securities Exchange Act of 1934, as amended


 

















 


Schedule B-2


Forecast Amounts


 




	
  Year

  	
   

  	
  Forecast Amounts

  
	
  Year 1

  	
   

  	
  $***

  
	
  Year 2

  	
   

  	
  $***

  
	
  Year 3

  	
   

  	
  $***

  
	
  Year 4

  	
   

  	
  $***

  
	
  Year 5 (and +)

  	
   

  	
  $***

  






 


The Forecast Amounts relate
only to purchases of Products and are used in this Agreement solely to
determine any applicable Price discounts and do not represent a commitment by
ANI to purchase Products in any particular amount.


 






*** Denotes language for which Vyyo Inc. has requested
confidential treatment pursuant to the rules and regulations of the
Securities Exchange Act of 1934, as amended


 

















 


Schedule B-3


Exclusivity Amounts


 




	
  Year

  	
   

  	
  Exclusivity Amount

  
	
  Year 1

  	
   

  	
  $4.0 million

  
	
  Year 2

  	
   

  	
  $4.0 million

  
	
  Year 3 (and +)

  	
   

  	
  None

  






 


In order to maintain
exclusivity in accordance with Section 18, the Exclusivity Amount shall be
paid in accordance with the following schedule:


 


The first Exclusivity Amount
payment of $4.0 million shall be paid by ANI to Vyyo within ten (10) days
of the Effective Date of this Agreement.


 


The second Exclusivity Amount
payment of $4.0 million shall be paid by ANI to Vyyo no later than twelve (12)
months after the Effective Date of this Agreement.


 


These Exclusivity Amounts are
used in this Agreement solely to determine ANI’s exclusivity rights in Year 1
and Year 2 only in relation to the Products and do not represent a commitment
by ANI to purchase Products in any particular amount. For purposes of
clarification, there is no Exclusivity Amount after Year 2.


 

















 


Schedule C-1


Support Services


 


General
terms:


 


1.     All service
calls will be made by ANI to Vyyo. There shall be no services calls initiated
by ANI’s customers to Vyyo.


 


2.     ANI technical
staff will have the required knowledge to reasonably try to address the
customer issues.


 


3.     ANI technical
staff will reasonably try to address the customer issues prior to calling upon
Vyyo.


 


4.     ANI will
approach Vyyo for support if it reasonably suspects that the problem is with a
malfunction of Vyyo equipment or software.


 


5.     Any contact by
Vyyo with ANI’s customers regarding Customer support issues shall include a
representative of ANI’s technical staff, unless expressly agreed otherwise by
Vyyo and ANI.


 


6.     Every request by
ANI for support will include, but not be limited to, the following information
to the extent necessary: a detailed description of the problem, a detailed
description of the configuration of the network at the relevant site and the
actions taken to resolve the problems or  find workarounds prior to the request for
support.


 


Call Center services:


Prices quoted are for 36 months
following the Effective Date.


 


	
  Part Number (P/N)

  	
   

  	
  Service description

  	
   

  	
  Rate

  
	
  TBD

  	
   

  	
  Regular hours (9AM-6PM EST)
  per call payment.

  	
   

  	
  $*** per hour, $*** minimum
  per call.

  
	
  TBD

  	
   

  	
  24*7, 365 days

  	
   

  	
  $*** yearly payment for up to
  250 hours. Any additional hours will be charged in accordance with the
  following:$*** per hour during Regular Hours, with a $*** minimum per call
  during Regular Hours; and $*** per hour outside Regular Hours, with a $***
  minimum per call outside Regular Hours.

  



 


On-Site services:


Priced quoted are for 24 months
following the Effective date.

Expenses (transportation, accommodation and hospitality will be charged on top
of that.


 

















 


Time will be measured in full
days starting at arrival to site and ending at departure  from site and adding one day for travel


 


	
  Part Number (P/N)

  	
   

  	
  Service Description

  	
   

  	
  Rate

  
	
  TBD

  	
   

  	
  Best effort

  	
   

  	
  $*** a day

  
	
  TBD

  	
   

  	
  Departure within 6 hours of
  call, pending transportation availability. No more than one person in the
  field at one time.

  	
   

  	
  $*** yearly payment for up to
  50 days. Any additional day will be charged at $*** a day.

  



 






*** Denotes language for which Vyyo Inc. has requested
confidential treatment pursuant to the rules and regulations of the
Securities Exchange Act of 1934, as amended

















 


Schedule C-2


Maintenance Services


 


Vyyo will be releasing from
time to time and upon its own discretion software and firmware updates, as
appropriate, to the Products. Such updates will include both fixes and
enhancements and will be made available to ANI for such products under
maintenance. Vyyo shall make commercially reasonable efforts to meet ANI
requests for Product enhancements but makes no commitments to do so unless
otherwise agreed upon by the parties in writing. Vyyo shall use commercially
reasonable efforts to promptly provide fixes or workarounds for any bugs
identified in the Products (including applicable software).


 


Initial Maintenance Services may be
purchased for a Product only at the time ANI purchases such Product from Vyyo,
unless otherwise agreed upon by the parties. Maintenance can only be purchased
for one year at a time and renewal Maintenance Services may be purchased
only prior to the expiration of prior maintenance period.


 


Cost of 12 months maintenance
for all base station Products (without antenna) is ***% of the price for such
Product set forth in Schedule A-1.


 


Cost of 12 months maintenance
for all CPE Products (without antenna) is ***% of the price for such Product
set forth in Schedule A-1.


 


Cost of 12 months maintenance
for the Network Management Software is ***% of the NMS Software price set forth
in Schedule A-1.


 






*** Denotes language for which Vyyo Inc. has requested
confidential treatment pursuant to the rules and regulations of the
Securities Exchange Act of 1934, as amended


 

















 


Schedule C-3


Extended Warranty and Rates


 


Vyyo offers Extended Warranty
service (the “Extended Warranty”) for the Hardware Products at ***% (flat rate)
of the product list price for one (1) twelve (12) months beyond the
initial 18 month Standard Warranty period, subject to the same terms and
conditions as set forth in the Standard Warranty.


 


This Extended Warranty is
applicable only as an extension/continuation of the Standard Warranty.


The Extended Warranty must be
purchased prior to the expiration of the Standard Warranty period.


The Extended Warranty repair
service is rendered upon customer’s request according to Vyyo’s RMA (Return
Material Authorization) policy.


 






*** Denotes language for which Vyyo Inc. has requested
confidential treatment pursuant to the rules and regulations of the
Securities Exchange Act of 1934, as amended


 

















 


Schedule C-4


Training Services and Rates


 


Vyyo
will offer Product Training which will target ANI technical personnel and will
provide them the required knowledge on how to operate and maintain the
Products.


 


Cost
of course (up to 20 trainees) - $*** per day, minimum 3-days


Reasonable
and Documented Expenses (meals, travel, and accommodations) of Vyyo’s trainer
will be charged in addition to the above.


Pricing
is limited for 24 months following the Effective Date.


 






*** Denotes language for which Vyyo Inc. has requested
confidential treatment pursuant to the rules and regulations of the
Securities Exchange Act of 1934, as amended


 

















 


Schedule C-5


Miscellaneous Services and Rates


 


Vyyo will offer other services
to ANI for the 18 months after the signing of this Agreement.


ANI shall provide a PO for
those services.


 


	
  Vyyo employee

  	
   

  	
  Price per day

  
	
  Engineer

  	
   

  	
  $***, minimum 3-days

  
	
  Senior Engineer

  	
   

  	
  $***, minimum 3-days

  



 


Notes:


 


1.     The rates do not include expenses such as meals, transportation
(flights and ground) and accommodation. ANI shall also be responsible to
reimburse Vyyo for such reasonable and documented expenses incurred in
connection with the performance of Miscellaneous Services.


2.     The parties acknowledge and agree that Vyyo’s employees shall perform any
such Miscellaneous Services under the direction and control of ANI (or its
designee). Vyyo makes no representation or warranty with respect to the
provision of any such miscellaneous services.


3.     Vyyo will provide such services only if the required engineer is
available.


 






*** Denotes language for which Vyyo Inc. has requested
confidential treatment pursuant to the rules and regulations of the
Securities Exchange Act of 1934, as amended


 

















 


Exhibit 1


Initial Purchase


 


*** Denotes language for which
Vyyo Inc. has requested confidential treatment pursuant to the rules and
regulations of the Securities Exchange Act of 1934, as amended