Exhibit 10.4
CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
PARTS SUPPLY AGREEMENT
BETWEEN
SHARP CORPORATION
AND
UTSTARCOM INC.
INDEX
Article
1. DEFINITIONS
2. PURCHASE AND SUPPLY OF THE SUPPLY PARTS
3. ORDER PROCEDURES
4. PURCHASE PRICE
5. TERMS OF PAYMENT
6. INSPECTION
7. SHIPMENT
8. REMEDY FOR INCOMPLETE SUPPLY OF THE SUPPLY PARTS
9. STOCK OF SPARE PARTS
10. DURATION OF AGREEMENT
11. TERMINATION
12. COMPENSATION FOR DAMAGES
13. ASSIGNMENT
14. NOTICES
15. ENTIRE AGREEMENT
16. EXCEPTIONS
17. ARBITRATION
18. GOVERNING LAW AND TRADE TERMS
19. MISCELLANEOUS
PARTS SUPPLY AGREEMENT
THIS AGREEMENT made and entered into this ______ day of ______________, 2000, by
and between
SHARP CORPORATION, a Japanese corporation, having its principal place of
business at 00-00, Xxxxxxx-xxx, Xxxxx-xx, Xxxxx, 000-0000 Xxxxx (hereinafter
referred to as "SHARP")
and
UTSTARCOM INC., a Delaware corporation, having its principal place of business
at 0000 Xxxxxx Xxx Xxxxxxx, Xxxxx 000, Xxxxxxx, XX 00000, X.X.X. (hereinafter
referred to as "UTSTARCOM")
WITNESSETH:
WHEREAS, SHARP has been engaged in the manufacture and sale of PHS terminal in
Japan; and
WHEREAS, UTSTARCOM is planning to cause EASTCOM (as defined below) to assemble
and manufacture the PRODUCTS (as defined below) and to cause HUTS (as defined
below) to distribute the PRODUCTS in the TERRITORY (as defined below). UTSTARCOM
wishes to purchase from SHARP and SHARP is willing to sell to UTSTARCOM
component parts of the PRODUCTS necessary to assemble, manufacture and repair
the PRODUCTS in the TERRITORY shall be purchased from SHARP; and
WHEREAS, UTSTARCOM and SHARP have entered into a technical collaboration
agreement dated , 2000 (hereinafter referred to as "TCA") with
respect to some license of SHARP's intellectual property rights and technical
know-how required to manufacture and distribute the PRODUCTS in the TERRITORY;
NOW, THEREFORE, the parties hereto hereby agree as follows:
Article 1. DEFINITIONS
Whenever used in this Agreement, unless otherwise clearly required by the
context, the following terms shall have the meaning set forth in the Article and
no other.
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(a) The term "TERRITORY" means [*]
(b) The term "PRODUCTS" means only such models of the products, which are:
i) specified in the EXHIBIT-A attached to TCA; and
ii) carrying the trademark "UTStarcom" or other marks owned by
UTSTARCOM or other marks designated by UTSTARCOM upon prior
written consent of SHARP.
(c) The term "SUPPLY PARTS" means any or all materials and component parts for
the PRODUCTS supplied in any form from SHARP, its subsidiary, related or
affiliated company or designated factory.
(d) The term "HUTS" means UTSTARCOM (HANGZHOU) TELECOM CO., LTD, a corporation
of People's Republic of China, a subsidiary of UTSTARCOM, having its
principal place of business at 0 Xxxx Xxxxxxxxxx Xxxx, Xxxx. 2/3 19 WenYi
Road, Hangzhou, 310012, People's Republic of China, doing business of
manufacturing, sales or distribution, and after-sales service of the
communication related products.
(e) The term "EASTCOM" means EASTERN COMMUNICATIONS CO., LTD, a corporation of
People's Republic of China, having its principal place of business at
No.398. Wen San Road, Hangzhou, Xxx Xxxxx, People's Republic of China,
doing business of assembly and manufacture of the mobile communication
products.
Article 2. PURCHASE AND SUPPLY OF THE SUPPLY PARTS
(a) UTSTARCOM agrees to purchase from SHARP and SHARP agrees to sell to
UTSTARCOM the SUPPLY PARTS subject to and upon the terms and conditions
contained herein.
(b) UTSTARCOM shall not, without the prior written consent of SHARP, cause
EASTCOM and/or HUTS to use the SUPPLY PARTS for any purposes other than for
the manufacture and assembly of the PRODUCTS in the TERRITORY or sell or
otherwise dispose of the SUPPLY PARTS, either directly or indirectly, to
any third party in the TERRITORY or elsewhere in the world.
[*] * CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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Article 3. ORDER PROCEDURES
(a) UTSTARCOM shall place with SHARP monthly purchase orders in writing for the
SUPPLY PARTS at least [*] before the [*] of the production month of the
SUPPLY PARTS thereby ordered or at least [*] before the [*] of the month in
which the SUPPLY PARTS are to be shipped from the relevant port(s) of
shipment, whichever is applicable. By the [*] of each month, non-binding
rolling forecasts for the SUPPLY PARTS order for the period of next [*]
shall be given to Sharp by UTSTARCOM for Sharp's smooth arrangements of the
SUPPLY PARTS. In case the relevant SUPPLY PARTS are to be manufactured
outside Japan, however, the number of months provided above shall be
increased by [*].
(b) The quantity of each model of the SUPPLY PARTS to be ordered by each of
such purchase orders shall be integral multiple of [*].
(c) Such purchase orders shall be deemed only to be offers by UTSTARCOM to
purchase the SUPPLY PARTS on and subject to the terms and conditions of
this Agreement and such other terms and conditions as may be set forth in
any SHARP price-list, estimate or other similar documents in effect at the
date when UTSTARCOM's order is accepted.
(d) SHARP may accept or reject the purchase orders submitted by UTSTARCOM. The
acceptance by SHARP of such purchase orders shall be made only by execution
and delivery by SHARP of the SALES CONTRACT (which form is designated by
SHARP and is subject to revision made from time to time by SHARP at its
sole discretion), thereupon such SALES CONTRACT shall be deemed to be the
final and conclusive contract between the parties for the purchase and sale
of the SUPPLY PARTS therein described. Immediately upon receipt by
UTSTARCOM of the said SALES CONTRACT, UTSTARCOM shall sign and return to
SHARP the duplicate copy of such SALES CONTRACT but failure of UTSTARCOM to
do so shall not affect the validity of such SALES CONTRACT as provided
hereinabove. It is specifically agreed, however, that if any export license
or permission is required for the exportation of the SUPPLY PARTS the SALES
CONTRACT shall come into effect only when such export license or permission
shall have been obtained. UTSTARCOM agrees that due to delay in obtaining
such license or permission the shipping date of the SUPPLY PARTS as set
forth in the SALES CONTRACT may be delayed and that such delay shall not
constitute a breach by SHARP of the SALES CONTRACT; provided, however, that
SHARP will ship the SUPPLY PARTS as soon as practicable after the shipping
date set forth in the SALES CONTRACT. In the event of any conflict or
inconsistency between the terms and conditions
[*] * CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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of this Agreement and those of any SALES CONTRACT, the terms and conditions
of this Agreement shall prevail with respect only to such conflicting or
inconsistent provisions, except for such terms and conditions as may be
typewritten on the face of such SALES CONTRACT.
Article 4. PURCHASE PRICE
All SUPPLY PARTS shall be sold to UTSTARCOM at the prices established or
confirmed by SHARP and in effect at the time when UTSTARCOM's purchase order is
accepted by SHARP. All prices for the sale of the SUPPLY PARTS under any SALES
CONTRACT shall be specified in Japanese yen.
Article 5. TERMS OF PAYMENT
(a) At least [*] before the shipping date specified in the relevant SALES
CONTRACT, UTSTARCOM shall establish, [*], with a leading and first class
bank (such bank shall be changed at the request of SHARP to be made from
time to time), an irrevocable and, if so requested by SHARP, confirmed
letter of credit (not restricted, unless otherwise agreed upon) in full
amount specified in the SALES CONTRACT in Japanese yen (unless otherwise
agreed upon) in favour of SHARP available at [*] after the date of the xxxx
of lading or air waybill for the shipment of Supply Parts to be drawn on
the establishing bank (unless otherwise agreed upon). A confirming bank
shall be a leading and first class international bank acceptable to SHARP
and, unless otherwise agreed upon, be a bank other than the establishing
bank of the letter of credit. Such letter of credit shall provide for
partial shipments and shall remain valid for not less than [*] after the
last day specified for shipment. In the event that the letter of credit is
to be advised by facsimile, UTSTARCOM shall cause a written confirmation
thereof to be air-mailed to SHARP via the advising bank. The said letter of
credit shall also include stipulations to the following effect:
In reimbursement to the negotiating bank by the establishing bank, priority
shall be given to the "debit authorization method" by which the letter of
credit shall have stipulated as a Reimbursement Instruction the following:
"we authorize you to debit our account with you at maturity." If the
foregoing method is not available for some inevitable reason(s), the
"remittance method" will be acceptable, in which case settlement shall be
made by Telegraphic Transfer.
Transfer charge of letter of credit, payment commission, acceptance
commission, confirming
[*] * CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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charge, reimbursement charge, advising charge and amendment charge, if any,
shall be for the account of UTSTARCOM.
(b) If UTSTARCOM fails to provide such letter of credit as prescribed in
paragraph (a) above, SHARP may at its option postpone the time for shipment
of the SUPPLY PARTS then unshipped or cancel any SALES CONTRACT and resell
the involved SUPPLY PARTS without incurring any liability to UTSTARCOM on
the part of SHARP. UTSTARCOM shall be responsible for any loss or damage to
SHARP caused by such postponement or cancellation or failure to establish
such letter of credit as provided above.
Article 6. INSPECTION
The SUPPLY PARTS shall be inspected before the shipment thereof by SHARP at its
relevant factory whether in Japan or elsewhere. The inspection executed pursuant
to the provisions of this Article shall be deemed to be final and conclusive in
respect of the quantity, quality, performance and other conditions of the SUPPLY
PARTS and SHARP shall be under no liability or obligation (including incidental
loss, products liability or other consequential loss) whatsoever except for
those specifically provided in Article 8 hereof, for any defect in quality or
performance or shortage in quantity of the SUPPLY PARTS which have passed such
inspection. UTSTARCOM shall not be entitled to reject such inspected SUPPLY
PARTS nor to claim any refund of the purchase price nor to suspend the due and
punctual performance of its obligations hereunder or under the relevant SALES
CONTRACT.
Article 7. SHIPMENT
(a) Unless otherwise agreed, shipment shall be effected [*] at any Japanese or
foreign port(s) in one shipment or in installments by any carrier of any
flag subject to the carrier's space being available. The quantity of each
shipping lot of the SUPPLY PARTS shall be from time to time determined by
SHARP.
(b) The date of Xxxx of Lading or of similar document(s) shall be deemed to be
conclusive evidence of the date of such shipment.
Article 8. REMEDY FOR INCOMPLETE SUPPLY OF THE SUPPLY PARTS
(a) In the event that after inspection executed pursuant to Article 6 hereof
any defect in quality
[*] * CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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or performance of any SUPPLY PARTS which fails to be repaired or recovered
by UTSTARCOM, HUTS and/or EASTCOM (hereinafter called the "DEFECTIVE
PARTS") or shortage in quantity is found in respect to any shipping lot of
the SUPPLY PARTS, and;
(i) UTSTARCOM shall have notified SHARP in writing to the foregoing effect
in reasonable detail within [*] after the date of the arrival of the
relevant SUPPLY PARTS at the destination specified in the relative
Xxxx of Lading, accompanied by documentary evidence satisfactory to
SHARP showing that such defect or shortage in quantity is the result
of faulty workmanship or mistake on the part of SHARP, or that such
defect or shortage in quantity arises from any cause for which SHARP
is responsible; and
(ii) UTSTARCOM shall have submitted to SHARP a survey report issued by
first-class sworn authorized surveyor(s) satisfactory to SHARP as well
as the report on form established by SHARP for the purpose of
verification by SHARP or SHARP's representative at EASTCOM's factory,
within [*] after the request of SHARP so to submit; and
(iii) the DEFECTIVE PARTS shall have been held by HUTS being retained
intact for SHARP's inspection for a period of [*] after the
notification made by UTSTARCOM pursuant to condition (i) above or
until UTSTARCOM shall have received instructions from SHARP permitting
UTSTARCOM and/or HUTS to dispose of such DEFECTIVE PARTS, whichever is
the earlier; and
(/ /) UTSTARCOM shall have returned the DEFECTIVE PARTS to SHARP, subject
to the instruction of SHARP set forth in condition (iii) above; and
(/ /) the sum of the quantity of any individual DEFECTIVE PARTS and/or that
of the shortage in any individual component, contained in the shipping
lot of the SUPPLY PARTS which shall have satisfied the foregoing
conditions (i) through (iv) shall exceed [*] of the total quantity of
any such individual component contained in each such shipping lot of
the SUPPLY PARTS;
Then, SHARP shall, as soon as possible after satisfaction of the foregoing
conditions (i) through (v), provide UTSTARCOM free of charge with the
replacement parts or supplementary parts of the relevant SUPPLY PARTS in such
quantity which shall be the balance of the sum set forth in condition (v) above
minus [*] of the total quantity of such individual component contained in such
shipping lot of the SUPPLY PARTS. SHARP shall bear the ocean transportation
charges required for its provision of aforementioned parts.
[*] * CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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(b) In the event that UTSTARCOM and/or HUTS fail to satisfy any of the
conditions (i) through (v) above in accordance therewith, UTSTARCOM shall
be deemed to have waived all its claims in respect to any defect or
shortage in quantity of such shipping lot of the SUPPLY PARTS.
(c) SHARP agrees to pay the transportation charges reasonably incurred by
UTSTARCOM in respect of sending back the DEFECTIVE PARTS to SHARP pursuant
to paragraph (a) of this Article. Such payment shall be made by SHARP
without delay after the conditions (i) through (v) set forth in paragraph
(a) above shall have been satisfied.
Article 9. STOCK OF SPARE PARTS
(a) In order to satisfy the orders from UTSTARCOM for repair and replacement
parts or their interchangeable parts, as the case may be, which shall be
necessary for HUTS's after-sales service of the PRODUCTS. SHARP shall be
prepared to supply UTSTARCOM with such parts for each model of the PRODUCTS
for the period commencing with the date of the latest shipment of the
relevant SUPPLY PARTS hereunder and ending on such date after the said
shipment as SHARP deems it reasonable. SHARP may and, if requested by
UTSTARCOM in writing, shall from time to time designate at its sole
discretion the length of such period and notify UTSTARCOM of such period.
UTSTARCOM shall, at least [*] before the termination of such designated
period, place with SHARP the last order for purchasing such parts for the
PRODUCTS as may be required for the after-sales service of the relevant
PRODUCTS during the rest of the life of such relevant PRODUCTS. In the
event that UTSTARCOM fails to place orders for purchasing such parts with
SHARP by the time-limit stated above, SHARP's obligations to supply such
parts under this Article shall cease without any compensation or remedy
whatsoever to UTSTARCOM.
(b) In case SHARP determines the discontinuance of any equivalent model to the
PRODUCTS which results in SHARP's inability to supply the SUPPLY PARTS for
that model, SHARP shall, at least [*] before the date from which the supply
of such SUPPLY PARTS becomes unavailable notify UTSTARCOM of such date and
model of the PRODUCTS. UTSTARCOM shall, within [*] of such notification,
place with SHARP the last order for purchasing such parts for the PRODUCTS
as may be required for the after-sales service of the relevant PRODUCTS
during the rest of the life of the relevant PRODUCTS. Notwithstanding
anything to the contrary contained herein or in paragraph(b) of this
Article, in the event that UTSTARCOM fails to place with SHARP orders for
purchasing any parts of the model of the PRODUCTS in respect of which the
manufacture is to be discontinued as aforesaid by the time-limit stated
above, SHARP's obligations to supply such parts shall
[*] * CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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cease without any compensation or remedy whatsoever to UTSTARCOM.
(c) Purchase and supply of the parts set forth in paragraphs(b) and (c) of this
Article shall, unless otherwise agreed upon by the parties hereto, be made
in compliance with the relevant terms and conditions of this Agreement,
provided, however, that SHARP may not reject such orders to the extent that
the assortment and quantity of such parts are then available to be supplied
by SHARP.
(d) If SHARP deems it necessary or advisable to provide technical information
to UTSTARCOM for assembly and manufacture of the PRODUCTS by using the
SUPPLY PARTS or for after-sales service, sales promotion or the like of the
PRODUCTS, SHARP will do so after consultation with UTSTARCOM subject always
to any necessary license requirements or permission of relevant government
authorities.
Article 10. DURATION OF AGREEMENT
This Agreement shall be deemed to have been come into force on the 1st day of
December, 1999 retroactively, and unless earlier terminated in accordance with
the provision hereof or otherwise shall continue in force and effect until and
including the [*]. It is understood by the parties hereto that this Agreement
shall be, either automatically or with amendment or modification (if any),
renewed hereafter on a [*] basis, unless either of the parties hereto gives to
the other party at least [*] prior written notice to terminate this Agreement
before the expiration of the initial term or any extended term of this
Agreement. If such prior written notice is made by either party, then this
Agreement shall terminate on the initial or, as the case may be, duly extended
expiration date of this Agreement.
Article 11. TERMINATION
(a) In the event of the occurrence of any of the following events to either
SHARP or UTSTARCOM (including HUTS and/or EASTCOM, as the case may be, for
the purpose of this Article), the other party may forthwith terminate this
Agreement by sending a written notice to the first party by registered
airmail:
(i) If either party continues in default of any material obligation
imposed on it herein, in any SALES CONTRACT or any other agreement
concluded hereunder or thereunder or in connection herewith or
therewith for more than two (2) months after written notice has been
despatched by registered airmail by the other party requesting the
party in default to
[*] * CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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remedy such default;
(ii) If either party hereto is subjected to compulsory execution, public
auction, coercive collection for its arrearage of taxes or public
imposts, or suspension of business by public authorities, or
appointment of any receiver or trustee of itself or any substantial
portion of its property, or if an application or petition is submitted
for bankruptcy, corporate arrangement or commencement of corporate
reorganization, or if either party hereto files voluntarily against it
an application or petition for bankruptcy, corporate arrangement or
commencement of corporate reorganization or composition, or if either
party hereto adopts a resolution for discontinuance of its business or
for a substantial decrease of its capital or for dissolution or merger
into another company, or makes general assignment for the benefit of
creditors or if either party hereto becomes unable to pay debts, or if
either party is declared in default of any material contract between
it and any third party and any such contract is cancelled or its
payment obligation under such contract is accelerated (All the
foregoing shall include the likeliness of each occurrence in the
reasonable opinion of the other party);
(iii) If, due to any substantial change in ownership, management or
effective control of either party or in the objects of the company
stated in the Memorandum of Association or Articles of Incorporation
or a similar document of either party, (1) there exist, or in the
reasonable opinion of the other party there is any ground to suspect
the existence of, any obstacles to the effective continuance of this
Agreement or any SALES CONTRACT, or (2) there occurs a situation which
on the reasonable opinion of the other party would be detrimental to
its interests; or
(/ /) If the TCA is terminated or expired for any reason; or
(v) If there is any other cause justifying either party to terminate this
Agreement, such as material and irreparable injury to goodwill or
reputation of the other party, commission by other party of a fraud on
or betrayal of confidence in or criminal act against the first party,
disclosure or divulgence by the other party of the first party's
confidential information.
(b) Except as otherwise specifically provided elsewhere in this Agreement any
termination of this Agreement shall be without prejudice to any right and
remedy which shall have accrued to either party under or in connection with
this Agreement or the SALES CONTRACT prior to such termination.
(c) Notwithstanding the provisions specified in this Article, unless this
Agreement is terminated by a cause or causes which SHARP deems attributable
to UTSTARCOM, UTSTARCOM
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may dispose of the SUPPLY PARTS in the TERRITORY which UTSTARCOM have on
hand at the time of termination of this Agreement within such a reasonable
period of time as may be agreed upon by the parties provided that such
disposal is made without impairing SHARP's reputation in the TERRITORY.
Article 12. COMPENSATION FOR DAMAGES
(a) In the event that either party defaults in the due performance of its
obligations hereunder, under any SALES CONTRACT or under any other
agreement made pursuant to or in connection with this Agreement or any
SALES CONTRACT, or in the event that this Agreement or SALES CONTRACT is
terminated or cancelled pursuant to paragraph (a) of Article 12 hereof, or
any other provisions contained herein or therein, then the other party or
the party dispatching a notice of termination or cancellation pursuant to
relevant provisions contained herein or therein (collectively the "Affected
Party") may demand compensation from the first party for the losses,
damages, incurred or sustained by the Affected Party as a result of any
such default, termination or cancellation.
The foregoing provisions of this Article shall not prejudice the right of
the Affected Party to extend the time for performance of any of its
obligations hereunder or under any SALES CONTRACT to the extent of the
duration of such default of the other party or to cancel any SALES CONTRACT
in respect of which the performance of any terms is then in default.
(b) UTSTARCOM shall defend, indemnify and hold harmless SHARP from and against
any and all actions, claims, demands, suits, losses, damages, costs,
expenses and judgements (including attorney's fee thereof) by whomever
made, brought or prosecuted and in any manner based upon, arising out of,
related to, occasioned by or attributable to any breach by UTSTARCOM and/or
HUTS of any provisions of this Agreement or any act or omission by
UTSTARCOM, its employees or agents in the performance thereof.
(c) SHARP shall defend, indemnify and hold harmless UTSTARCOM from and against
any and all actions, claims, demands, suits, losses, damages, costs,
expenses and judgements (including attorney's fee thereof) by whomever
made, brought or prosecuted and in any manner based upon, arising out of,
related to, occasioned by or attributable to any breach by SHARP of any
provisions of this Agreement or any act or omission by SHARP, its employees
or agents in the performance thereof.
(d) Without prejudicing the right of SHARP to terminate or cancel this
Agreement and/or any SALES CONTRACT and any other rights and remedies of
SHARP contained herein or in
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any SALES CONTRACT, if the SUPPLY PARTS are not shipped on the shipping
date specified in the relevant SALES CONTRACT due to any cause whatsoever
due to UTSTARCOM, including, without limitation, delay in or repudiation of
taking delivery of such SUPPLY PARTS or delay in performance of the
obligations of UTSTARCOM hereunder or under such SALES CONTRACT, UTSTARCOM
shall pay SHARP an overdue interest at the rate of [*] per annum of (i) the
full amount of the price of the relevant SUPPLY PARTS specified in such
SALES CONTRACT, accruing from and including such shipping date to and
including the actual shipping date or the date on which such SALES CONTRACT
is cancelled by SHARP hereunder, whichever date is applicable and (ii) the
losses, damages and expenses incurred or suffered by SHARP due to said
cancellation of the SALES CONTRACT, accruing from and including such
cancellation date to and including the date of actual payment by the
UTSTARCOM of said losses, damages and expenses.
(e) In any event, the parties hereto each disclaim any and all liability for
special, incidental, or consequential damages (including loss of profit)
relating to the terms and conditions of this Agreement.
Article 13. ASSIGNMENT
Neither party shall assign, transfer or otherwise dispose of this Agreement in
whole or in part or any right or obligation hereunder to any individual, firm or
corporation without the prior consent of the other party in writing.
Article 14. NOTICES
(a) Except as otherwise provided herein all notices to be given or made under
this Agreement shall be in writing and sent by registered air-mail and
addressed to the principal office of the parties as indicated hereinabove
or to such other address as either party may hereafter furnish to the other
party in writing.
(b) All notices shall be deemed to have been given or made on the day of
despatch.
Article 15. ENTIRE AGREEMENT
This Agreement constitutes the entire and only agreement between the parties
hereto as to the subject matter contained herein and supersedes all previous
understandings, commitments and
[*] * CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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agreements whether oral or written relating to the subject matter hereof, and no
modification, amendment or supplement of this Agreement shall be binding upon
the parties hereto except by mutual express written consent of subsequent date
signed by authorized representative or officer of each of the parties hereto.
Article 16. EXCEPTIONS
(a) SHARP shall not be liable for any delay in shipment or delivery,
non-delivery or destruction or deterioration, of all or any part of the
SUPPLY PARTS or for any other default in performance under this Agreement
or any SALES CONTRACT, which arises from any lockout, strike, labor trouble
or other industrial disturbance, inevitable accident, export cartel by
governmental authorities or industry or trade association of whatever
nature to limit its export of the SUPPLY PARTS, fire, explosion,
transportation difficulty, materials or labor shortage, SHARP's
subcontractor's or supplier's suspension or inability of or delay in
production or shipment of the SUPPLY PARTS, or from any cause beyond the
control of SHARP, including without limitation, war, blockade, embargo,
mobilizations, governmental, administrative or public direction or guidance
or order of any country including any reasonably anticipated direction or
guidance or order thereof, legal restriction imposed in any country
including any reasonably anticipated restriction thereof, riot, civil
commotion, warlike condition, prolonged failure or shortage of electric
power, gas, or oil, epidemic, earthquake, flood, typhoon, or other Act of
God.
(b) In the event of any delay or failure due to cause or causes given in the
preceding paragraph (a), SHARP shall send by facsimile, e-mail or otherwise
a written notice stating the reason therefor to UTSTARCOM as promptly as
possible. The performance of SHARP shall be deemed suspended as long as,
and to the extent that, any such cause(s) continue, but this Agreement
and/or any SALES CONTRACT then executory shall not be regarded as
terminated, frustrated or cancelled simply as a result of such delay or
failure and the parties hereto shall continue once more with its
performance when the cause or causes of such delay or failure have ceased
or have been eliminated, provided, however, that if such delay or failure
extends or is reasonably anticipated to extend for a period of more than
three(3) months, SHARP may without any liability on its part terminate or
cancel this Agreement and/or the said SALES CONTRACT by sending a written
notice to UTSTARCOM to the extent that SHARP's performance has been
prevented or delayed.
Article 17. ARBITRATION
Any dispute arising from the execution of, or in connection with, this Agreement
shall be settled
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through friendly consultation between the parties. If the dispute cannot be
settled within sixty (60) days from the first date of consultation, the dispute
shall be settled by arbitration consisting of three (3) arbitrators. Arbitration
shall be held in San Francisco, California under the International Arbitration
Rules of the American Arbitration Association if initiated by SHARP, and shall
be held in Osaka, Japan under the Commercial Arbitration Rules of the Japan
Commercial Arbitration Association if initiated by UTSTARCOM. The award rendered
by the arbitration shall be final and binding upon the parties and may be
entered by any court having jurisdiction.
Article 18. GOVERNING LAW & TRADE TERMS
(a) It is mutually agreed that the terms of this Agreement and the performance
hereunder shall in all respects be governed, construed and interpreted in
accordance with the laws of Japan, excluding its provisions regarding
conflict of laws.
(b) If and to the extent applicable the trade terms used in this Agreement
shall have the meaning given to such terms in the International Commercial
Terms (Incoterms 1990).
Article 19. MISCELLANEOUS
(a) SEPARABILITY: The parties hereto agree that, in the event of one or more of
the provisions hereof being subsequently declared invalid or unenforceable
by court or administrative decision, such invalidity or unenforceability of
any of the provisions shall not in any way affect the validity or
enforceability of any other provisions hereof except those which the
invalidated or unenforceable provisions comprise an integral part of or are
otherwise clearly inseparable from such other provisions.
(b) WAIVER: A waiver by a party hereto of any particular provision hereof shall
not be deemed to constitute a waiver in the future of the same or any other
provision of this Agreement.
(c) EXPENSES: Unless otherwise expressly agreed herein, in the SALES CONTRACT
or otherwise in writing by the parties hereto, each party shall bear all
losses, damages, liabilities, expenses and disbursements incurred or made
by itself or any other investment made by itself in connection with or in
pursuance of this Agreement or any SALES CONTRACT, and neither party shall
be entitled to compensation or remedy of any kind whatsoever from the other
party for the said losses, damages, liabilities, expenses, disbursements or
investment whether on termination of this Agreement or any SALES CONTRACT
for any reason whatsoever or otherwise unless otherwise expressly agreed
upon in writing by the other party.
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(d) TITLE: The Article titles in this Agreement have been inserted for
convenience only and shall in no way be used in the interpretation hereof.
(e) GUARANTEE OF HUTS AND EASTCOM: UTSTARCOM hereby unconditionally guarantees
to SHARP the due and punctual performance by HUTS and/or EASTCOM of all the
material terms and conditions of this Agreement to be performed by HUTS
and/or EASTCOM hereunder, and indemnifies and holds SHARP harmless from and
against any damages, costs, expenses and other liabilities incurred by
SHARP by reason of failure of HUTS and/or EASTCOM to fully perform and
comply with the material terms and conditions of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed
by their respective representatives or officers duly authorized thereunto as of
the date first above written.
SHARP CORPORATION UTSTARCOM INC..
BY: BY:
----------------------------------------- ---------------------------
Name: Sueyuki Hirooka Name: Hong Xxxxx Xx
Title: Corporate Senior Executive Director Title: President & Chief
& Group General Manager of Executive Officer
International Business Group
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