EXHIBIT 10.65
[*] 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.
STRATEGIC ALLIANCE, PURCHASE AND LICENSE
AGREEMENT
between
UTStarcom Incorporated
(COMPANY)
and
TELECOMMUNICATIONS D'HAITI X.X.X.
(TELECO)
Strategic Alliance [*] Lines Contract No. HT041101
Teleco Network Expansion
Table of Contents
Page
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1. Definitions............................................................. 1
1.1 "Functional Verification"......................................... 1
1.2 "Commercial Service".............................................. 1
1.3 "Effective Date".................................................. 1
1.4 "Product"......................................................... 1
1.5 "Services"........................................................ 1
1.6 "Documentation"................................................... 1
1.7 "Software"........................................................ 2
1.8 "Software License Agreement"...................................... 2
1.9 "Non-Disclosure Agreement"........................................ 2
1.10 "Warranty Period"................................................. 2
1.11 "Business Plan"................................................... 2
1.12 "Training"........................................................ 2
1.13 "Final Acceptance Certificate".................................... 2
2. Term.................................................................... 2
3. Project Scope........................................................... 2
4. Project Business Plan and Schedule...................................... 3
5. Purchase Orders......................................................... 4
5.1 Order Submission.................................................. 4
6. Price, Financing and Payment Terms...................................... 4
6.1 Pricing and Shipment.............................................. 4
6.2 Taxes, Duties and Levies.......................................... 4
6.3 Financing and Form of Payment..................................... 4
7. Advance Payment Guarantee............................................... 5
8. Liquidated Damages...................................................... 6
9. Installation and Acceptance............................................. 6
9.1 Site Availability................................................. 6
9.2 Installation...................................................... 6
9.3 Equipment Acceptance.............................................. 8
10. Obligations and Rights of Parties....................................... 8
11. Project Coordination Committee and Executive Board...................... 11
12. Functional Verification................................................. 11
13. Licenses................................................................ 11
14. Title and Risk.......................................................... 12
15. Warranty................................................................ 12
Strategic Alliance [*] Lines Contract No. HT041101
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Table of Contents
(continued)
Page
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15.1 Limited Warranty.................................................. 12
15.2 Disclaimer of Warranties.......................................... 13
15.3 Inherently Dangerous Applications................................. 13
15.4 Product Returns................................................... 13
16. Indemnification......................................................... 13
16.1 Indemnity......................................................... 13
16.2 Limitations....................................................... 14
16.3 Disclaimer........................................................ 14
17. Limitation of Liability................................................. 14
18. Termination............................................................. 14
19. Training................................................................ 15
20. Governing Law and Regulations........................................... 15
21. General Provisions...................................................... 15
21.1 No Liability for Other Party's Acts............................... 15
21.2 Independent Contractors........................................... 15
21.3 Notices........................................................... 15
21.4 Security Interest................................................. 16
21.5 No Assignment..................................................... 16
21.6 Jurisdiction...................................................... 16
21.7 Publicity......................................................... 16
21.8 No Violation of Applicable Law.................................... 16
21.9 Conflicting Exhibits.............................................. 16
21.10 No Waiver......................................................... 17
21.11 Arbitration....................................................... 17
21.12 Non-Monetary Remedies............................................. 17
21.13 Force Majeure..................................................... 17
21.14 Entire Agreement.................................................. 17
21.15 May Be Executed in Counterparts................................... 17
21.16 Contract Validity................................................. 17
Exhibit A: Section 7 Economic Proposal and Equipment Lists
Exhibit B: End-User Software License
Exhibit C: Mutual Non-Disclosure and Confidentiality Agreement
Exhibit D: Business Plan and Project Commercial Milestones
Exhibit E: Project Implementation Schedule
Exhibit F: Training and Technology Transfer
Exhibit G: Final Acceptance Certificate
Strategic Alliance [*] Lines Contract No. HT041101
Teleco Network Expansion
STRATEGIC ALLIANCE, PURCHASE AND LICENSE AGREEMENT
THIS STRATEGIC ALLIANCE, PURCHASE AND LICENSE AGREEMENT (the "Agreement")
is made by and between UTStarcom, Inc., a Delaware corporation, having offices
at 0000 Xxxxxx Xxx Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxxxx 00000, Xxxxxx Xxxxxx
of America (hereinafter referred to as "Company"), duly represented by Xx. Xxxx
X. Xxxxxx, Managing Director, Caribbean and Latin America of Company and
Telecommunications D'Haiti X.X.X., hereinafter referred to as TELECO or BUYER, a
company, with its principal place of business at Port Au Prince, Republic of
Haiti, duly represented by Monsieur Xxxxxxx X. Xxxxxx, Directeur General of
TELECO, appointed by the President du Conseil d'Administrationon Gouverneur de
la Banque de la Republique d'Haiti on March 2001, and duly authorized by the
Government of Haiti to enter into and sign this contract.
WHEREAS, BUYER desires to purchase and license, from time to time, certain
of Company's products and services; and
WHEREAS, Company wishes to enter a strategic alliance, sell and license
such products and services to BUYER upon the terms and conditions set forth
herein.
NOW, THEREFORE, the parties agree as follows:
1. Definitions. For the purpose of this Agreement, the terms below
-----------
shall have the following definitions:
1.1 "Functional Verification". "Functional Verification" means
completion of tests performed by Company in accordance with the Functional
Verification test procedure to be provided by Company and approved by the BUYER
prior to the commencement of the tests.
1.2 "Commercial Service". "Commercial Service" means the earliest
date when any of BUYER's subscribers or customers begins to use the Product.
1.3 "Effective Date". "Effective Date" means the earliest date by
which duly authorized officers of both parties have signed this Agreement.
1.4 "Product". "Product" means collectively all hardware and
software components and subsystems provided by Company as more fully described
in Exhibit A attached hereto.
1.5 "Services". "Services" means collectively labor delivered by
Company and/or its subcontractors for the purpose of training, installation,
repair or other
purposes.
1.6 "Documentation". "Documentation" means all user manuals,
training manuals, Software release notes, and other similar, written materials
to be provided in English during the
-1-
Strategic Alliance [*] Lines Contract No. HT041101
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initial Project's phase and in French after the completion of the Projects first
phase, provided with the System, as may be updated by Company from time to time.
1.7 "Software". "Software" -- the executable (object code) version
of software as developed by and/or licensed to Company for use in the Product.
1.8 "Software License Agreement". "Software License Agreement" means
the Software License Agreement between the parties and attached hereto as
Exhibit B.
1.9 "Non-Disclosure Agreement". "Non-Disclosure Agreement" means the
Mutual Non-Disclosure and Confidentiality Agreement between the parties and
attached hereto as Exhibit C.
1.10 "Warranty Period". "Warranty Period" -- a period starting on
the date of Functional Verification as applicable per Limited Equipment Warranty
coverage described herein this Contract.
1.11 "Business Plan". "Business Plan" -- The Business Plan of the
Project details Project Implementation Schedule, financial parameters of the
Strategic Alliance, Purchase and License Agreement and the Financial Returns for
each party of this Strategic Alliance and attached hereto as Exhibit D.
1.12 "Training". Exhibit "F".
1.13 "Final Acceptance Certificate". Exhibit "G".
2. Term. The term of this Agreement shall commence on the Effective Date
----
and unless otherwise terminated as provided herein, shall continue in full force
and effect.
3. Project Scope. The purpose of this Contract is to rule and establish
-------------
the conditions, rights, obligations, responsibilities and other related
stipulations under which both parties will jointly develop a Project for a
minimum of [*] wireless access lines that will allow TELECO to provide Access
Services to its residential and business customers throughout the Republic of
Haiti.
(i) as a key pre-requisite to accomplish the investment and financial
commitments being made by the Company to execute the planned project as per the
parameters set forth in the Business Plan and TELECO's objectives for the
deployment of new telephone lines to provide telephone services in the
designated serving areas where pent-up demand exists, (ii) and derive the
necessary revenues from these that will make the expansion feasible. The
Project shall be developed in accordance to the Business Plan included in
Exhibit D of this Agreement.
To develop the Project both parties agreed that Company will engineer,
manufacture or supply, install, test and put into service telecommunication
equipment, and related services including but not limited to the sale of the
services to end users and the Software (as defined below) as described in
Exhibit A ("Equipment and Services") at Company prices listed in Exhibit A. The
Strategic Alliance [*] Lines Contract No. HT041101
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equipment could be installed wherever it is required and agreed by Company, as
per Company standards practices and recommendations, in the Buyer premises or
third party locations. All charges and/or fees related to renting of space,
facilities, rights of ways, civil works, expansions to existing
telecommunications infrastructure needed to accommodate the equipment/solution
for this project, from third parties, as needed to install the contracted
equipment, will be charged to [*] and their cost properly adjusted in the
contract value as relevant data becomes available from the planned field
engineering surveys completion.
[*] will purchase and pay for such equipment, services, land, facilities,
rights of ways, licenses, and other necessary project elements as agreed in this
Contract, its annexes or any amendments to them.
Prices for installation and related charges are subject to change due to
[*]. [*] agrees to pay all such additional charges as invoiced by Company.
During the execution of Contract both parties could agree on additional
extensions to the Contract Scope at the then prevailing prices. Such extensions
could include additional equipment, services, new functionalities of the
equipment not included in this project and currently inherent to the offered
equipment or new features to be developed in the future by the Company.
Buyer, as National Telecommunications Operator of Haiti, shall provide all
of its [*] to facilitate the Project Development.
Company will provide [*] deployment as described and agreed to in this
Agreement, its Annexes and the Proposal, including Product and Services as
detailed in Exhibit A.
The scope of contract may be extended by mutual agreement of the parties.
The terms and conditions of such extension(s) shall be made through amendments
to the original contract
4. Project Business Plan and Schedule. Equipment will be deployed in
----------------------------------
phases, [*]. Deployment is as per scheduled as detailed in Exhibit E.
This contract is based on the Business Plan presented in Exhibit D,
"Business Plan". The Business Plan is a fundamental part of the Contract. It
details the Project Commercial Milestones, the financial parameters that will
rule the Contract and it establishes the expected financial returns agreed and
projected by both parties. One of the key purposes of this Contract and
Business Plan is to ensure the success of the project and its financial returns
on the investment in order to ensure the successful execution of the Project
both from an economic and financial standpoint. This signifies that the revenue
streams generated from the initial phases of the project, shall provide the
funding needed to carry out the project subsequent phases to achieve the Project
Plan stated Goals. In accordance with the aforementioned and to ensure the
actual compliance of the Business Plan in practice, every [*], TELECO and
Company will review the actual results yielded by Project against the Business
Plan goals and will agree on the necessary adjustments warranted to ensure that
Company obtains the payments for the goods and services contracted by TELECO
under the terms
Strategic Alliance [*] Lines Contract No. HT041101
Teleco Network Expansion
of this Agreement and the financial returns or charges established in the
Business Plan as well as the benefits due to TELECO. If for any reason these
financial returns are not as projected in the Business Plan [*] will provide the
additional funding that guarantees the payment of product and services as well
as the financial product and charges due to Company.
Prior to delivery, Company reserves the right to make substitutions,
modifications and improvements to the Equipment, provided that such
substitution, modification or improvement shall not materially affect
performance in the application originally agreed to with Customer.
5. Purchase Orders.
---------------
5.1 Order Submission. BUYER will purchase and/or license Products
----------------
according to the Scope of this Strategic Alliance Agreement by submitting, from
time to time as per Project Schedules and Phases indicated in Business Plan and
Project Schedule (Exhibits D and E), purchase orders by hard copy or facsimile.
Company will accept orders in compliance with the terms of this contract and
will inform BUYER in writing of expected shipment dates.
All purchase orders submitted by BUYER shall be subject to the terms and
conditions of this Agreement. No additional or different provisions appearing
anywhere on BUYER's purchase orders or other correspondence shall be binding on
Company. Any such terms and will be deemed to be stricken.
6. Price, Financing and Payment Terms.
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6.1 Pricing and Shipment. Prices for the Product and Services
--------------------
purchased and/or licensed hereunder shall be as described in Exhibit A to this
Agreement (the "Prices"). Prices for the Product are in [*]. Unless otherwise
specified by Company in writing, the Prices for the Products [*] any freight,
transportation, handling or Services, which are listed, separately as
applicable.
6.2 Taxes, Duties and Levies. The Prices and/or any payments or
------------------------
disbursements to Company from this Agreement [*] any customs duties, value added
tax, income tax or any other direct or indirect tax, charge, duty, levy or
assessment which may be levied or charged by any national, state, local or other
governmental authority, agency or instrumentality of the Republic of Haiti,
currently applicable or created in the future by any authority of the Republic
of Haiti. Any such amounts charged, levied or assessed, whether withheld at
source or otherwise, will be [*] to the prices otherwise chargeable to and
payable by [*] pursuant to this Agreement.
6.3 Financing and Form of Payment. Payment of goods, services and
-----------------------------
other charges due to Company shall be made by TELECO as follows:
1) Down payment of [*] per cent of the Project Total Contract
Value of each individual phase of the [*] Access Lines project payable [*]
within [*] from Contract Signature.
Strategic Alliance [*] Lines Contract No. HT041101
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2) Payment of Contract remaining balance due to Company shall be
paid by TELECO in [*] installments [*] as follows:
These installments shall come from the total revenues collected from users
who subscribe to access lines provided by the Buyer with this project. Both
parties agreed that total revenues would consist of the following:
[*]
Total revenues have been estimated in the Business Plan based on
conservative figures below the actual applicable values. The actual values
could be higher and will depend on the official tariffs approved and applicable
in Haiti by TELECO. All revenues collected by TELECO shall be automatically
deposited when subscriber pays for their services in an escrow account at a
mutually agreeable international financial institution whose joint beneficiaries
shall be the Company and Buyer. At the end of each [*], the Company and TELECO
will review the balance of the escrow account. The Company shall be entitled to
collect the [*] installments owed to Company as per the mutually agreed project
implementation schedule. The escrow account shall be kept with a minimum
balance equivalent to the amount of a [*] installment and the remaining funds in
the account shall be disbursed to TELECO. If for any reason, the funds
deposited in the escrow account are not sufficient to cover the [*] contract
installment, TELECO shall pay from its own funding the difference owed to the
Company within a period of [*] from payment due date.
As a guarantee to Company efforts and investment, Buyer shall provide
Company an acceptable Guarantee acceptable to Company, such as any of the
following: i) an [*] L/C for an amount [*] in a first rated international
financial institution acceptable to Company, ii) IOU's with the collateral of
[*], iii) any other form of guarantee acceptable to Company. The amount of the
herewith indicated guarantee shall be equivalent to two quarterly installments
of the project value in favor of Company. This guarantee shall allow partial
disbursements that could be exercised by Company if Buyer delays the payment of
any outstanding balance for more than [*]. If disbursements are applied to
Guarantee, Buyer shall reinstate the original value of L/C and/or guarantee
within [*] of notification from Company. Failure to reinstate the value of this
guarantee will become a breach of contract; in such case Company could exercise
the L/C and/or Guarantee and collect by any means the balance due from the
entire contract. This guarantee shall cover the total contract value and shall
be valid during the contract term. In addition, Government of Haiti Guarantee
should be issued by Banc Nationale D'Haiti, majority owner of TELECO, in favor
of Company to serve as guarantee to the contracted project.
All payments are non-refundable.
7. Advance Payment Guarantee. Company shall provide for the benefit of
-------------------------
BUYER an advance payment guarantee issued first-rated international bank, in the
amount of the Initial Payment as set forth in Article 6.3 (the "Guarantee"). The
Guarantee shall become effective upon Company's receipt of the Initial Payment
due from BUYER under the terms of Section 6, and shall expire upon shipment of
the Product, unless extended by mutual written agreement of the parties.
Strategic Alliance [*] Lines Contract No. HT041101
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8. Liquidated Damages. In the event Company fails to complete deployment
------------------
to a sufficient degree to allow Commercial Service to begin by the date
specified in the mutually agreed project plan, BUYER may assess against Company
liquidated damages, for each week of such delay, in the amount of [*] of the
total price under the applicable purchase order for the delayed item or items,
provided that the total amount of liquidated damages that may be assessed under
this Agreement shall not exceed [*] of the total Product price set forth in the
applicable purchase order and further provided that the assessment of such
liquidated damages by BUYER shall be its [*] remedy for Company's delay in
preparing the BUYER network for commercial service by the date specified in the
mutually agreed project plan.
Notwithstanding the foregoing provisions of this Section, Company shall not
be responsible for any delay or failure to deliver the Product, and BUYER shall
not be entitled to any liquidated damages or termination rights, to the extent
such delay or failure results from: (a) any delay or failure by BUYER or any
third party not under Company's control to perform its obligations under or
related to this Agreement or any of its Exhibits or attachments; or (b) any
force majeure event.
9. Installation and Acceptance.
---------------------------
9.1 Site Availability. BUYER shall prepare within the timeframe
-----------------
agreed to by the parties site(s) for the installation of the Product that meets
the environmental and other requirements of the Product for its installation as
specified by Company. BUYER shall provide access to the sites and the Product
for Company's personnel and other authorized representatives.
9.2 Installation. Company or its subcontractors shall install the
------------
Product at the site(s). BUYER undertakes and agrees to use its best efforts to
avoid delay in the commencement or performance of the installation by any act or
omission of the BUYER or any of BUYER's employees, agents or representatives.
The Buyer shall, [*], on the signing of this agreement, and at all times
thereafter during the period of project execution hereunder be responsible for
the following, including site preparation, clean-up, site security, power,
equipment warehousing, provide unrestricted access to network facilities and
equipment sites.
(a) Allow employees or agents of Company, Inc. free access to
premises and facilities where the Equipment is warehoused, existing network
facilities and sites where contracted equipment will be installed at all hours
consistent with the requirements of the installation.
(b) Environmental -- Assure that the premises will meet all
-------------
temperature, humidity controlled, air-conditioned, and other environmental
requirements set forth in the applicable Equipment specifications and will be
dry and free from dust and in such condition as not to be injurious to the
employees or agents of Company, Inc. or the Equipment to be installed.
Strategic Alliance [*] Lines Contract No. HT041101
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(c) Mechanical -- Provide all patching, painting, concrete
----------
openings, conduits, ducts, floors, walls and ceilings reinforcements and/or
modifications, as deemed necessary to house the contracted equipment, or other
mechanical modifications pertinent to this installation as required.
(d) Electrical -- Provide ample electric current of proper
----------
voltage for any necessary purpose suitably terminated in rooms or any places
where equipment is to be installed, including but not limited to poles and
towers, where it is required. Provide property ground copper conductor of ample
capacity (minimum #6 AWG) at the Equipment locations. Provide the required -
48vDc power feeds and 120/240 VAC power feeds, all separately fused outlets, as
may be required per individual equipment site.
(e) Provide for the termination of any existing service
agreement and for the removal of any existing equipment and cable, as required.
(f) Provide suitable and easily accessible floor space, as well
as secured storage, to permit storing adjacent to where Equipment will be used,
and for secure storage of tools, test sets, and employee's personal effects for
the duration of project.
(g) Approvals -- Buyer shall be responsible for the timely and
---------
proper securing of all permits, licenses, rights of ways, consents, including
landlords, issuance of frequency spectrum operating licenses and approvals from
the corresponding regulatory authorities, i.e. CONATEL, legal requirements and
fees thereof associated in connection with these for the acquisition,
installation and operation in its network of the contracted Equipment.
(h) Buyer specifically agrees to indemnify and hold Company
harmless from all liability and costs arising from the Buyer and its
contractors, subcontractors and employees for site preparation efforts or for
the latent conditions of the site.
Company, Inc. will install the contracted network access Equipment at the
designated network points of presence (POPs) indicated in the contract technical
schedules and revisions thereof that may result from the network planning, field
and site surveys to be conducted. Company, however, will not be responsible for
performing civil works, i.e., construction, modifications, power distribution,
painting. plastering, ducts, existing equipment relocations, repairs to Buyer's
premises resulting from the installation of the contracted Equipment except as
expressly agreed by Company in the contract technical schedules. Buyer hereby
holds Company harmless from any such damage to Buyer's property.
It is the sole responsibility of the Buyer to perform the installation of
subscriber premises equipment, its proper alignment, and service activation as
line and/or Buyer contracts services with its subscribers.
Both Buyer and Company, Inc. shall complete the installation services in
accordance with Company standard installation practices and recommendations.
Company shall perform acceptance testing according to Company standards and
specifications on the installed Equipment and Buyer
Strategic Alliance [*] Lines Contract No. HT041101
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agrees to monitor said testing. Upon completion thereof, as described above,
Company shall notify Buyer that the Equipment has been installed and operates in
accordance with the criteria set forth in Company Specifications.
If the Equipment does not perform according to the acceptance test criteria
and Company, after having been notified in writing of the defects fails to cure
such defect within [*] of receipt of such notice ("Cure Period"), Buyer has the
right to return the Equipment [*] if such Equipment is shipped to Company no
later than [*] after expiration of the Cure Period.
9.3 Equipment Acceptance. The commercial in-service handling of
--------------------
first call at the end of each deployment phase described in the Price Summary
contained in Exhibit "A" shall constitute the acceptance by Buyer of the
equipment delivered.
Company and BUYER shall accordingly execute the Acceptance Certificate
forthwith at the conclusion of each deployment phase, substantially in the form
shown in Exhibit G.
10. Obligations and Rights of Parties.
---------------------------------
OBLIGATIONS OF COMPANY:
a) Engineer, deliver, install and to put in operation the network
expansion and necessary and suitable equipment with all its accessories
contracted by the Buyer, and its interconnection, according to parameters and
conditions set forth in this Contract.
b) Furnish new equipment of most recent version, good quality and
compatible with the existing PSTN network of Buyer as per international accepted
standards.
c) Train and transfer the necessary knowledge to the qualified TELECO
personnel to operate, exploit and maintain the equipment that will be
provisioned under the terms of the contract.
d) Provide the technical services required to perform the design and
commissioning of the proposed network expansion solution, excluding the
installation and placement in service of the subscriber premises equipment and
necessary wire cable plant. Drop wire installation and modifications or
installation at customer premises are to be carried out and at the cost of [*].
Company will provide and install the necessary cable between the RPs and RPCs.
OBLIGATIONS OF BUYER:
a) Make available to the Company all existing equipment and network
infrastructure required to perform the contracted equipment and expansions,
including but not limited to: PSTN facilities, equipment sites, switching
systems, PDH and SDH transmission network, inclusive the Banc Nationale D'Haiti
SDH points of presence and associated transmission backbone equipment, ducts,
poles, buildings, cable plant, radio towers, rights of way, as well as, all the
necessary technical
Strategic Alliance [*] Lines Contract No. HT041101
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engineering information, facilities, licenses and approvals needed to deploy and
interconnect the contracted solution.
b) Under the terms of the agreement the Buyer or its designated commercial
agent is solely responsible for all promotions, sales-marketing, commercial
infrastructure, including points of sales and personnel necessary to promote and
commercialize the lines and services contracted within the Republic of Haiti.
c) Put in operation the structure and equipment supplied by the Company to
operate, exploit and to maintain the equipment network expansion contracted,
including installation of equipment at end-user premises, installation and
provisioning of primary and secondary drop wire cable plant as well as internal
installation and repairs at customer premises, training of end-user, Buyer
service, billing and collections activities necessary to conduct the marketing,
sale, installation, service processing, billing and collection activities of the
lines/services contracted.
d) Insure, by its own account and risk, the contracted equipment,
personnel and goods deployed in its facilities, stored in its warehouses and
under the control of its personnel against all the possible risks.
e) The Buyer is solely responsible to ensure through its best efforts,
capacity and experience the optimum profitability, continuity and regularity of
the service, including lines and services sold by the Company and/or its
designated commercial agent and disburse all collected revenues due to
Company/Agent for the sales of the lines and services.
f) Permit the use of its installations when required by the Company to
perform equipment installations, interconnections, testing, and any other
activity related to the implementation/operation of the project.
g) Provision of the services to the users in the coverage zones
established; and to the billing and collections for the corresponding connection
fees, monthly charges, user fees and other charges from the provision of
services to the users.
h) Keep separate accounting and financial records of the project according
with international accounting practices.
i) Perform, timely, according to project schedule and engineering the
adequate extensions to existing equipment to interconnect the project with the
existing infrastructure.
j) Buyer agrees to grant the Company and/or its designated agent full
rights and privileges to conduct marketing and promotional activities and use of
information and the facilities related to this contract to showcase and
demonstrate its equipment capacities and attributes to other potential clients.
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k) Buyer agrees to grant Company the necessary Government of the Republic
of Haiti importation exemptions free of any import duties, levies and
restrictions to import test equipment, tools, vehicles, computing equipment,
office equipment, miscellaneous hardware, and other elements needed for the [*]
implementation of the contracted project.
l) Buyer agrees to facilitate Company personnel and its sub-contractors
and respective family members the necessary entry visas and work permits to live
and work in the Republic of Haiti during the course of the project.
m) Buyer agrees to reinvest in the subsequent project phases, the revenues
from project's revenue generation.
RIGHTS OF BUYER:
a. Exploit the equipment and keep the financial product from the revenue
of the equipment once the financing of project and all other related charges has
been covered.
b. Participate in the project field installation activities to obtain
knowledge of the equipment and of the processes of installation and placement in
operation, for which TELECO will appoint personnel properly qualified under the
supervision of the Company.
c. Hands-on training to receive technology and knowledge transfer for the
operation, exploitation and corrective and preventive maintenance of the
contracted equipment/solution.
RIGHTS OF COMPANY:
a) Access to Buyer premises to install the equipment, perform equipment
test, interconnections or any other activities related to the project execution
and integration to the existing network.
b) Company or a firm representing company must have full access to
accounting files and Accounting Books of Project and to all information related
with the Project. Company could conduct audits to the project' operations. To
do such audits, Company reserves the right to do it directly or through a
specialized firm that will be hired for such purpose. In such cases, Buyer
shall be notified [*] before such audits are going to be conducted. All project
information shall be confidential and could not be released without the written
consent of both parties.
c) To receive the payments, to cover the investment made in equipment and
services as well as the financing charges and any other charges related to the
project, from the total revenues deposited in the escrow account and collected
from the subscribers connected to the installed equipment with the project.
d) To receive interest at an interest rate [*] for any delayed payment
whose delay exceeds [*] after payment due date.
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11. Project Coordination Committee and Executive Board. Company and Buyer
--------------------------------------------------
agree to install [*] after Contract Signature a Project Coordination Committee
"The Committee" whose main purpose will be to coordinate all activities related
to project execution and performance and solve any differences that may arise
during contract execution. The Committee will consist of one representative from
TELECO and one representative from Company. The Committee shall be responsible
for the development and coordination of operational aspects, commercial aspects
and the development of procedures to effectively provide service to the end
users as well as any action required to secure the success and profitability of
the project. Any action or recommendation from the Committee shall be based on
the Contract Terms and Conditions.
The Committee shall meet at least once every week and produce a weekly
report or on a per call basis as required by any of the two members appointed
to it. For each of the members, each party shall appoint a substitute that
shall represent the principal in the event that this one cannot assist to any
specific meetings. Extraordinary meetings could be call by either party,
meeting place and date shall be agreed, if no agreement is mutually reach,
meeting shall be enforce to be held 8 calendar days after written notification
of request of meeting.
If any matter is not resolved by the Committee, the General Director of
TELECO or its designated representative and the Sales Vice president of Company
or its designated representative shall constitute the Executive Board "The
Board" of the Project and will solve any matter regarding this. In any event
any recommendation or resolution of the Committee, which involves or commits
money beyond [*] from either side or a significant deviation from deliverables
(schedule or functions) or any expansion beyond [*] shall be approved by the
Board.
12. Functional Verification. Company shall perform functional
-----------------------
Verification tests in accordance with the Functional Verification Test procedure
to be provided by Company prior to the commencement of the tests. The BUYER
undertakes and agrees to ensure that there will be no delay in the commencement
or performance of the Functional Verification by any act or omission of the
BUYER or any of BUYER's employees, agents or representatives.
13. Licenses. Company hereby grants BUYER a [*] license to use the
--------
Software and the Documentation solely in connection with the Products purchased
by BUYER pursuant to this Agreement, at the Site(s) and for the purpose and in
the manner for which the Product was designed and intended by Company, all in
accordance with the software license provisions set forth in Exhibit B attached
hereto. In no event shall BUYER have the right to market, sell, lease, license,
sublicense, assign, distribute or otherwise transfer the Products or any part
thereof without the express prior written consent of Company.
BUYER shall not remove nor alter, nor permit the removal or alteration of,
any Company or third-party trademarks, copyright notices, tags, labels or other
identifying markings placed on any Products, products, packages or containers
provided hereunder without the prior written consent of Company. In no event
shall BUYER have the right to market, sell, lease, license or otherwise
distribute the Products.
Strategic Alliance [*] Lines Contract No. HT041101
Teleco Network Expansion
14. Title and Risk. Title to the Product shall pass to BUYER upon
--------------
Company's shipment of the Product(s) to BUYER [*]. Risk of loss to the Product
shall pass to BUYER in accordance with [*].
Title to all Software and Documentation shall remain vested in Company.
All intellectual property rights to the Product, Documentation, Applications and
Software or any part thereof, including without limitation all patents,
trademarks, trade names, copyrights, designs, know how and trade secrets shall
remain vested in Company and its licensors at all times.
15. Warranty.
--------
15.1 Limited Warranty. Company warrants that the non-Software
----------------
Products, as delivered, will be free from defects in materials and workmanship
during the Warranty Period.
This warranty will apply to hardware items directly manufactured by
Company, except the telephone subscriber terminal equipment, shall expire after
[*] from the date of shipment or [*] from the date of functional verification is
completed as defined herein this contract's Clause 1 Definitions, numerals 1.1
"Functional Verification" and 1.2 "Commercial Service" and Clause 12 "Functional
Verification". However, with respect to the telephone terminal equipment, the
Company agrees to provide the Customer a [*] additional supply of terminals over
the purchased quantity to support the warranty of units found defective directly
attributed to manufacturing defects.
The warranty service shall be administered in accordance with Company
recommendations and practices in effect at the time of shipment. Buyer shall
notify Company in writing immediately upon discovery of any defects within the
warranty period for return authorization and instructions. Upon receipt of the
returned Equipment prepaid by Buyer, Company' sole obligation shall be to repair
and/or replace the part found to be defective, at its option. Replacement
Equipment may be new, or repaired. Returned replaced Equipment shall become
Company's property. Replacement Equipment shall be warranted for the unexpired
portion of the returned Equipment's warranty.
The foregoing warranty is contingent upon proper use of the Products in the
applications for which they were intended. This warranty shall not apply to
defects or failures to a Product which was subjected to: (i) accident, neglect
or misuse; (ii) failure of or defect in electrical power, external electrical
circuitry, air-conditioning or humidity control; (iii) the use of software or
Product not provided by Company or approved in writing by Company for use with
the Product; (iv) unusual stress; (v) improper use or maintenance; (vi) electro-
static discharges; (vii) unusual operational or environmental stress or (vii)
modification, adjustment, repair, service or installation by any party other
than Company, or persons authorized and certified by Company.
Company's sole liability and BUYER's exclusive remedy shall be limited to
repair, replacement, credit or refund, [*].[*] shall pay all freight charges for
shipment of any replacement Product to BUYER during the Warranty Period.
Replacement or repair of a Product shall not extend the original warranty for
that Product or repair part.
12
Strategic Alliance [*] Lines Contract No. HT041101
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15.2 Disclaimer of Warranties. COMPANY MAKES NO WARRANTIES OR
------------------------
CONDITIONS, EXPRESS, STATUTORY, IMPLIED, OR OTHERWISE, AND COMPANY SPECIFICALLY
DISCLAIMS THE IMPLIED WARRANTIES AND CONDITIONS OF NONINFRINGEMENT,
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NOTWITHSTANDING THE
FOREGOING, COMPANY DOES NOT EXCLUDE LIABILITY TO THE EXTENT THAT SUCH LIABILITY
MAY NOT BE EXCLUDED OR LIMITED BY LAW.
15.3 Inherently Dangerous Applications. THE PRODUCTS ARE NOT
---------------------------------
AUTHORIZED FOR USE AS CRITICAL COMPONENTS IN LIFE SUPPORT DEVICES OR SYSTEMS OR
FOR USE IN AVIATION, NUCLEAR OR ANY OTHER INHERENTLY DANGEROUS APPLICATION
WITHOUT THE EXPRESS WRITTEN APPROVAL OF THE MANAGING DIRECTOR OF COMPANY. LIFE
SUPPORT DEVICES OR SYSTEMS ARE THOSE WHICH ARE INTENDED TO SUPPORT OR SUSTAIN
LIFE AND WHOSE FAILURE TO PERFORM CAN REASONABLY BE EXPECTED TO RESULT IN A
SIGNIFICANT INJURY TO THE USER. CRITICAL COMPONENTS ARE THOSE COMPONENTS WHOSE
FAILURE TO PERFORM CAN REASONABLY BE EXPECTED TO CAUSE FAILURE OF A LIFE SUPPORT
DEVICE OR SYSTEM OR AFFECT ITS SAFETY OR EFFECTIVENESS.
15.4 Product Returns. In order to return Product that BUYER believes
---------------
is defective, BUYER shall (i) notify Company in writing that such Product is
believed to be defective and furnish a detailed explanation of any alleged
problem; (ii) obtain a RMA number from Company for the alleged defective
Product; and (iii) within [*] of receipt of the RMA number, return such Product
to Company, [*], with the RMA number prominently attached to Company's facility
in Miami, U.S.A. or such other location as Company may designate in writing in
each case during the Warranty Period.
BUYER shall pay shipping charges for returned Product shipped to Company
and Company shall pay shipping charges for returned product shipped to BUYER.
16. Indemnification.
---------------
16.1 Indemnity. BUYER agrees that Company has the right to defend,
---------
or at its option to settle, and Company agrees, at its own expense, to defend or
at its option to settle, any third party claim, suit or proceeding
(collectively, "Action") brought against BUYER alleging the Products infringe
any United States patent, copyright or Trademark in existence as of the
Effective Date and enforceable in the BUYER's country, subject to the
limitations hereinafter set forth.
Company will have sole control of any such Action or settlement
negotiations, and Company agrees to pay, subject to the limitations hereinafter
set forth, any final judgment entered against BUYER on such issue in any such
Action defended by Company. BUYER agrees that Company will be relieved of the
foregoing obligations unless BUYER notifies Company promptly in writing of such
Action, gives Company authority to proceed as contemplated herein, and gives
Company proper and full information and assistance to settle and/or defend any
such Action. If it is
13
Strategic Alliance [*] Lines Contract No. HT041101
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adjudicatively determined, or if Company believes, that the Products, or any
part thereof, infringe any patent, copyright or trademark, or if the sale or use
of the Products, or any part thereof, is, as a result, enjoined, then Company
may, at its election, option, and expense: (i) procure for BUYER the right under
such patent, copyright or trademark to sell or use, as appropriate, the Products
or such part thereof; or (ii) replace the Products, or part thereof, with other
noninfringing suitable Products or parts; or (iii) suitably modify the Products
or part thereof; or (iv) remove the Products, or part thereof, terminate
distribution or sale thereof and refund the payments paid by BUYER for such
Products less a reasonable amount for use and damage. Company will not be liable
for any costs or expenses incurred without its prior written authorization, or
for any installation costs of any replaced Products.
16.2 Limitations. Notwithstanding the provisions of Section 16.1
-----------
above, Company has no liability to BUYER for (i) any infringement of patent or
copyright claims alleging infringement by completed equipment or any assembly,
circuit, combination, method or process in which any of the Products may be used
but not covering the Products standing alone; (ii) any trademark infringements
involving any marking or branding not applied by or requested by Company, or
involving any marking or branding applied by Company at the request of BUYER; or
(iii) the modification of the Products, or any part thereof, unless such
modification was made by Company, where such infringement would not have
occurred but for such modifications.
16.3 Disclaimer. COMPANY'S LIABILITY ARISING OUT OF OR RELATING TO
----------
THIS SECTION 16 SHALL NOT EXCEED THE AGGREGATE AMOUNTS PAID BY BUYER TO COMPANY
FOR THE ALLEGEDLY INFRINGING PRODUCTS THAT ARE THE SUBJECT OF THE INFRINGEMENT
CLAIM. THE FOREGOING PROVISIONS OF THIS SECTION 16 STATE THE ENTIRE LIABILITY
AND OBLIGATIONS OF COMPANY AND THE EXCLUSIVE REMEDY OF BUYER AND ITS CUSTOMERS,
WITH RESPECT TO ANY ALLEGED PATENT, COPYRIGHT OR TRADEMARK INFRINGEMENT BY THE
PRODUCTS OR ANY PART THEREOF.
17. Limitation of Liability. Notwithstanding any other clause in this
-----------------------
Agreement, in no event will Company be liable for any special, indirect,
incidental, punitive or consequential damages (including without limitation any
damages for loss of data, use or profits) arising from or in connection with
this Agreement or the use or performance of any Product whether in an action
based on contract, tort or any other legal theory, whether or not Company has
been notified of the possibility thereof.
Notwithstanding any other clause in this Agreement, in no event will
Company's total aggregate liability for any damages arising from or in
connection with this Agreement or the use or performance of any Product whether
in actions based on contract, tort or any other legal theory, and whether or not
Company has been notified of the possibility thereof, exceed the price paid by
the BUYER for the relevant item or component of Product giving rise to the claim
amortized on a straight line basis over [*] from the date of the applicable
purchase order.
18. Termination. This Agreement may be terminated by either party:
-----------
14
Strategic Alliance [*] Lines Contract No. HT041101
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(a) if the other party is in material breach of this Agreement and
fails to cure such breach within [*] of receiving written notice of the breach.
Provided that the breaching party continues to make diligent and good faith
efforts to cure the breach, the breaching party shall be granted a [*] extension
of time to cure the breach.
(b) Upon [*] prior written notice if any of the following
circumstances remain uncured: (i) if the other party becomes insolvent or unable
to pay its debts in the ordinary course of its business; (ii) if a voluntary or
involuntary petition under applicable bankruptcy laws is filed by or against the
other party; (iii) if a receiver is appointed for the business affairs of the
other party or the other party makes an assignment for the benefit of creditors;
or (iv) if the other party liquidates or ceases doing business as a going
concern.
Any provision of this Agreement, which by its nature survives termination,
shall survive termination of this Agreement.
19. Training. Company shall offer technical training for BUYER's
--------
personnel in accordance with Exhibit F
20. Governing Law and Regulations. BUYER agrees to comply with all
-----------------------------
relevant laws, export or otherwise of the United States to assure that the
Product and Documentation are not exported or otherwise transferred in violation
of such laws. Prior to exporting or transferring the Product or Documentation,
BUYER shall obtain Company's written consent and a license from the U.S.
Department of Commerce and/or any other appropriate agency of the U.S.
Government, as required.
21. General Provisions.
------------------
21.1 No Liability for Other Party's Acts. Neither party shall be
-----------------------------------
liable for any losses, injuries, or damages caused by or attributable to the
acts and/or omissions of the other party, its employees, or its agents.
21.2 Independent Contractors. The parties hereto agree that they are
-----------------------
independent contractors. This Agreement shall not be construed to create or
result in a partnership or joint venture between the parties hereto, nor to make
either party the agent of the other party. This Agreement shall not create any
third party beneficiary rights.
21.3 Notices. Any notices, requests, demands or other communications
required or permitted under this Agreement shall be in writing and shall be
sufficiently communicated if delivered (i) in person or by means of a recognized
courier service, (ii) sent by facsimile with written confirmation sent by
regular airmail, or (iii) if sent by registered airmail, return receipt
requested, to the recipient party at its address appearing in the preamble
hereof or to such other address as such party may have designated for such
purpose by notice previously given to the other party in accordance with the
terms hereof.
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Strategic Alliance [*] Lines Contract No. HT041101
Teleco Network Expansion
COMPANY: UTStarcom, Inc.
Attn: Xxxx Xxxxxx
Title: Managing Director
Caribbean & LatinAmerican (CALA)
0000 Xxxxx Xxxx. #000,
Xxxxxxxx Xxxxx, XX 00000 XXX
Fax: x0 (000) 000 0000
BUYER: Telecommunications D'Haiti X.X.X.
Title: Xxxxxxxx Xxxxxx
Title: Director
FAX x000 00 0000
Notices shall be deemed to have been received if delivered in person, on
the same day; if sent by facsimile, 24 hours after transmission; if sent by
registered mail, seven (7) days after deposit into the respective national mail
Product.
21.4 Security Interest. Company reserves, and BUYER hereby grants to
-----------------
Company, a security interest in [*] until Company has received payment in full.
BUYER agrees at Company's request to execute any and all financing statements
and to take such other action as Company may reasonably request to carry out the
intent of this Section.
21.5 No Assignment. Neither party may assign its rights and/or
-------------
obligations hereunder without the prior written consent of the other party,
which consent shall not be unreasonably withheld. Notwithstanding the
aforementioned, Company reserves the right and Buyer agrees, that Company could
assign to a third party institution its financial rights related to this
Agreement.
21.6 Jurisdiction. This Agreement shall be governed by, and
------------
construed in accordance with, the laws of California, U.S.A., without reference
to the conflict of laws provisions thereof.
21.7 Publicity. The substance and timing of any written or other
---------
public disclosure relating to this Agreement, in the form of a press release or
similar disclosure shall be subject to the prior written approval of both
parties.
21.8 No Violation of Applicable Law. If any provision of this
------------------------------
Agreement is held to be invalid under any applicable law, such provision shall
be ineffective to the extent of such violation without invalidating other
provisions of this Agreement.
21.9 Conflicting Exhibits. In the event that any provision of the
--------------------
Exhibits or any other attachments to this Agreement are deemed to be in conflict
with the provisions of this Agreement, the provisions of this Agreement shall
control.
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Strategic Alliance [*] Lines Contract No. HT041101
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21.10 No Waiver. Any failure by either party to enforce strict
---------
performance by the other party of any provision herein shall not constitute a
waiver of the right to subsequently enforce such provision or any other
provision of this Agreement.
21.11 Arbitration. Any controversy or claim arising out of or
-----------
related to this Agreement shall be submitted to binding arbitration in San
Francisco, State of California, U.S.A in accordance with the then prevailing
International Chamber of Commerce ("ICC") procedural Arbitration Rules. Any such
arbitration shall be held in English before a single arbitrator who shall be
knowledgeable in telecommunications and data processing Products. The parties
consent and submit to the jurisdiction of the Courts of the State of California,
United States of America in connection with any award made by the arbitrator(s).
Each party shall bear its own costs and expenses (including attorneys' fees)
incurred in connection with this section.
21.12 Non-Monetary Remedies. The parties hereby acknowledge that
---------------------
monetary damages may not be a sufficient remedy for breaches of the licensing
provisions set forth in Exhibit B or of the Non-Disclosure Agreement annexed
hereto as Exhibit C and that either party may be entitled to such injunctive or
equitable relief for actions or claims alleging such breach(es) as may be deemed
proper by a court of competent jurisdiction.
21.13 Force Majeure. Neither party shall be liable for damages
-------------
resulting from its failure to perform its obligations hereunder (other than the
obligation to make payments owing to the other party) if such failure arises out
of or in connection with any act of war, civil disturbance, strikes, earthquake,
flood, embargo, failure or unavailability of means of communication, failure or
unavailability of means of transportation or any other cause or event of force
majeure beyond the reasonable control of the party failing to perform or of its
agents and contractors.
21.14 Entire Agreement. This Agreement and the Exhibits hereto
----------------
constitute the entire agreement between Company and BUYER relating to the
subject matter hereof and supersede all statements, representations, and
understandings, which have been made by either party or their agents or
representatives prior to the execution of this Agreement. No modification of
this Agreement shall be binding upon either party unless made in writing and
executed on behalf of that party by its duly authorized representative.
21.15 May Be Executed in Counterparts. This Agreement may be
-------------------------------
executed in counterparts and by facsimile such that when taken together the
counterparts shall be deemed a true original of the Agreement between the
parties.
21.16 Contract Validity. The validity of this Contract is contingent
-----------------
upon TELECO obtaining the License approval to operate in the proposed solution
frequency band.
Strategic Alliance [*] Lines Contract No. HT041101
Teleco Network Expansion
IN WITNESS WHEREOF, a duly authorized representative of each party has
executed this Agreement as of the date set forth below.
COMPANY BUYER
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------- ------------------------------------
Name: Xxxx X. Xxxxxx Name: Xxxxxxx X. Xxxxxx
Title: Managing Director, Caribbean Title: Directeur General, Telecommunications
and Latin America d'Haiti X.X.X.
Date: 04/12/01 Date: 04/12/01
Price and Equipment Lists Exhibit A
Xxxxxxxx Xx. XX000000
[*]
[*]Strategic Alliance [*] Lines Contract No. HT041101
Teleco Network Expansion
EXHIBIT B: END-USER SOFTWARE LICENSE
---------
The following terms and conditions shall constitute the license ("License")
by which software that accompanies, whether by being embedded into a hardware
element or component or by means of a separate media such as diskette or compact
disc, or otherwise ("Software"), is transferred in connection with products
("Products") supplied by Company ("Licensor").
Grant. The person who acquires any Product ("Licensee") may install and
-----
use the Software [*]. Licensee may copy the Software only for backup purposes,
provided that Licensee reproduces all copyright and other proprietary notices
that are on the original copy of the Software.
Restrictions. Licensee may not use, copy, modify, or transfer the
------------
Software, or any copy thereof, in whole or in part, except as expressly
permitted by this License. Licensee may not reverse engineer, disassemble,
decompile, or translate the Software, or otherwise attempt to derive the source
code of the Software, or permit any other person to do any of the foregoing.
Any attempt to transfer any right, duty or obligation in this License is void.
Licensee may not rent, lease, loan, resell for profit, or distribute the
Software, or any part thereof. License may not modify or create derivative
works based on the Software in whole or in part.
Ownership. The Software is not sold but is only licensed to Licensee for
---------
use only in accordance with this License, and Licensor reserves all rights not
expressly granted to Licensee.
Copyright. United States copyright laws and international treaty protect
---------
the Software. Licensor or its suppliers or licensors owns the Software.
Term. This License will terminate immediately upon notice to Licensee if
----
Licensee materially breach any term or condition of this License. Licensee
agrees upon termination promptly to destroy the Software and all copies thereof.
Warranty Disclaimer. THE SOFTWARE IS PROVIDED TO LICENSEE "AS IS" AND
-------------------
LICENSOR AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES INCLUDING THE
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-
INFRINGEMENT.
Limitation of Remedies. IN NO EVENT SHALL LICENSOR OR ITS SUPPLIERS BE
----------------------
LIABLE TO LICENSEE OR TO ANY OTHER PERSON FOR ANY LOST PROFIT, CORRUPTION OR
LOSS OF DATA, INTERRUPTION OF BUSINESS, OR OTHER EXEMPLARY, SPECIAL, INDIRECT,
INCIDENTAL OR CONSEQUENTIAL DAMAGE OF ANY KIND ARISING OUT OF THE USE OR
INABILITY TO USE THE SOFTWARE, EVEN IF LICENSOR HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH LOSS OR DAMAGE AND WHETHER OR NOT SUCH LOSS OR DAMAGE IS
FORESEEABLE.
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Strategic Alliance [*] Lines Contract No. HT041101
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Export Law. The Software and related technology are subject to U.S. export
----------
control laws and may be subject to export or import regulations in other
countries. Licensee agrees strictly to comply with all such laws and
regulations and acknowledge that Licensee has the responsibility to obtain such
licenses to export, re-export or import as may be required.
General. The laws of the State of California, USA, will govern this
-------
License. The Federal and State Courts located in San Francisco County,
California, USA shall have sole jurisdiction over all disputes arising in
connection with this License. If any provision of this License is held to be
unenforceable, that provision will be removed and the remaining provisions will
remain in full force. This License is the complete and exclusive statement of
the agreement between Licensee and Licensor and supersedes all prior agreements,
oral or written, and all other communications between Licensee and Licensor in
relation to the subject matter of licensing the Software.
Licensee agrees to the terms and conditions set forth above in this License
as of the effective date of this agreement date.
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Strategic Alliance [*] Lines Contract No. HT041101
Teleco Network Expansion
EXHIBIT C: MUTUAL NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT
---------
THIS AGREEMENT IS ENTERED INTO BY AND BETWEEN COMPANY, INC., 0000 XXXXXX
XXX XXXXXXX, XXXXX 000, XXXXXXX, XX 00000 ("Company") AND TELECOMMUNICATIONS
D'HAITI X.X.X. ("BUYER").
1. This Agreement shall apply to all confidential and proprietary
information disclosed by the parties to the other, including but not limited to
confidential product planning information, product specifications and other
proprietary and business and technical information (hereinafter referred to as
"Confidential Information"). As used herein, "Confidential Information" shall be
in written, graphic, machine recognizable or other tangible or electronic form
and marked "Confidential" or "Proprietary" or shown by implication that it is
imparted or disclosed in confidence, or if disclosed orally or visually, shall
be reduced to writing in summary form, identified as "Confidential Information"
and sent to the Receiving Party within 15 days following such oral or visual
disclosure.
2. Company and BUYER mutually agree to hold the other party's Confidential
Information in strict confidence and not to disclose such Confidential
Information to any third parties except after receiving prior consent by the
disclosing party in writing. Company and BUYER shall use the same degree of
care to avoid disclosure of such Confidential Information as each employs with
respect to its own proprietary information of like importance or a greater
degree if reasonable.
3. Company and BUYER agree that they will not use the other party's
Confidential Information for any purpose other than for the intended purposes,
without the prior written permission of the other party.
4. Company and BUYER mutually agree they may disclose such Confidential
Information to their respective responsible employees with a bona fide need to
know, and Company and BUYER agree to instruct all such employees not to disclose
such Confidential Information to third parties and will ensure that such
employees have agreed to similar non-disclosure provisions with Company or the
BUYER, its own employees respectively.
5. Information shall not be deemed Confidential Information and the
receiving party shall have no obligation regarding any information for which it
can be proven in written documentation (a) is already known to the receiving
party at the time that it is disclosed without use of the Confidential
Information; (b) is or becomes publicly known through no wrongful act contrary
to this Agreement of the receiving party; (c) is rightfully received from a
third party without obligation of confidence or restriction on disclosure from
receiving party and without breach of this Agreement; (d) is independently
developed by the receiving party without use of Confidential Information; (f) is
disclosed pursuant to a requirement of a valid court order provided that the
Receiving Party provides (i) prior written notice for the disclosing party of
such obligation and (ii) the opportunity to oppose such disclosure and (iii) it
is disclosed for the extent and purposes or the order only.
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Strategic Alliance [*] Lines Contract No. HT041101
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6. All Confidential Information shall remain the property of the
disclosing party, and upon the written request of either party, the other party
shall promptly return to the disclosing party all Confidential Information
disclosed to it and all copies thereof or at the disclosing party's option shall
destroy all such Confidential Information and shall provide the receiving party
with a certificate that all Confidential Information has been destroyed.
7. Company and BUYER recognize and agree that nothing contained in this
Agreement shall be construed as granting any rights, by license or otherwise to
any Confidential Information disclosed pursuant to this Agreement.
8. This agreement shall be binding upon and inure to the benefit of the
party's successors and assigns. This Agreement shall not be assignable by either
party for the written consent of the other party, and any purported assignment
not permitted hereunder shall be void. This document constitutes the entire
agreement between the parties with respect to the subject matter hereof, and
shall supersede all previous, understandings and agreements, either oral or
written, between the parties or any official or representative thereof.
9. The obligations undertaken by each party pursuant to this Agreement
shall remain in effect for three years from the last date of disclosure of
Confidential Information, and shall survive any termination or expiration
hereof.
10. None of the Confidential Information disclosed by the parties
constitutes any representation, warranty, assurance, guarantee or inducement by
either party to the either with respect to the infringement of trademarks,
patents, copyrights; any right of privacy; or any rights of third persons.
11. The parties hereto are independent contractors.
12. This Agreement may be modified only by written amendment signed by both
parties. This Agreement shall be construed in accordance with the laws of the
State of California without regard to the conflict of laws provisions and shall
be subject to the jurisdiction of the courts of the State of California.
13. The receiving party may make copies of Confidential Information only to
the extent necessary for the purpose of this Agreement provided that the copies
are marked "Confidential" and treated as Confidential Information in accordance
with the terms of this Agreement.
14. Accordingly, nothing in this Agreement will be construed as a
representation or inference prohibiting either party from developing products,
having products developed for it, from entering into joint ventures, alliances,
or licensing arrangements that all without violation of this Agreement, compete
with the products or systems embodying the Confidential Information.
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Strategic Alliance [*] Lines Contract No. HT041101
Teleco Network Expansion
EXHIBIT D: BUSINESS PLAN AND PROJECT COMMERCIAL MILESTONES
---------
[*]
-24-
Project Implementation Schedule Exhibit X
Xxxxxxxx Xx. XX000000
[*]
-25-
EXHIBIT F: TRAINING AND TECHNOLOGY TRANSFER
---------
-26-
TRAINING COURSE
Participants: [*]
Time: [*]
Duration: [*]
Objectives:
. Describe the proposed solution features and characteristics,
including an introduction to the PHS air interface characteristics
and to facilitate network planning and system configuration.
. Describe the features and functions of each component of the
proposed solution equipment set, to support the operation and
maintenance of the equipment by Teleco's personnel during and
after the installation.
. Train personnel in the use of the [*] as part of its operations
with the various elements of proposed solution.
Training Course Summary:
[*]
[*]
-27-
EXHIBIT G: FINAL ACCEPTANCE CERTIFICATE
---------
-28-
FINAL ACCEPTANCE CERTIFICATE
----------------------------
DATE:_________________________________
CONTRACT:_____________________________
PHASE #:______________________________
PHASE AMOUNT:_________________________
CUSTOMER:_____________________________
BY ITS SIGNATURE BELOW, THE ABOVE NAMED CUSTOMER CERTIFIES THAT:
1) WITH RESPECT TO THE CONTRACT IDENTIFIED ABOVE, THE CUSTOMER HAS FULLY
ACCEPTED DELIVERY OF THE EQUIPMENT DESCRIBED IN THE ABOVE REFERENCED
CONTRACT PHASE, WITH TITLE FULLY PASSING TO THE CUSTOMER.
2) INSTALLATION OF THE EQUIPMENT HAS BEEN FULLY COMPLETED FOR THE CUSTOMER BY
UTSTARCOM AND/OR ITS AGENTS OR SUBCONTRACTORS.
3) ALL TRIAL PERIODS, PRELIMINARY TESTING, COMMISSIONING AND FINAL ACCEPTANCE
TESTING AS REQUIRED FOR THE ABOVE-DESCRIBED PHASE HAS BEEN COMPLETED TO THE
FULL SATISFACTION OF THE CUSTOMER.
4) ALL SERVICES TO BE PROVIDED TO THE CUSTOMER PRIOR TO AND AS A PART OF FINAL
ACCEPTANCE TESTING, AS REQUIRED BY THE ABOVE-DESCRIBED CONTRACT, HAVE BEEN
SUBSTANTIALLY COMPLETED TO THE FULL SATISFACTION OF THE CUSTOMER.
5) UTSTARCOM IS ENTITLED TO FULL PAYMENT OF THE CONTRACT AMOUNT FOR THE PHASE
IDENTIFIED ABOVE.
6) THE CUSTOMER'S SIGNATURE OF THIS FINAL ACCEPTANCE CERTIFICATE IN NO WAY
RELIEVES UTSTARCOM OF ANY WARRANTY, POST-ACCEPTANCE MAINTENANCE, OR
EQUIPMENT UPGRADE OBLIGATIONS CONTAINED WITHIN THE ABOVE-REFERENCED
CONTRACT.
7) THIS CERTIFICATE SUPERSEDES ANY CONTRARY ORAL OR WRITTEN AGREEMENTS OR
NEGOTIATIONS THAT MAY HAVE OCCURRED PRIOR TO THE SIGNING OF THIS
CERTIFICATE.
_______________________________________
NAME
_______________________________________
TITLE
_______________________________________
CUSTOMER NAME
_______________________________________
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