Broadband Access Equipment Contract – Reliance Infocomm Ltd. and UTStarcom Inc.
STRICTLY CONFIDENTIAL
BROADBAND ACCESS EQUIPMENT CONTRACT
between
RELIANCE INFOCOMM LIMITED,
Reliance
and
UTSTARCOM INC.,
Vendor
Dated as of October 1, 2002
Table of Contents
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5.1 |
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5.2 |
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5.3 |
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6.1 |
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6.2 |
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6.3 |
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6.4 |
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Other |
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6.5 |
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6.6 |
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7.1 |
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7.2 |
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i
EXHIBITS
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Exhibit A |
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Price List |
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Exhibit B |
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Initial Spare and |
ii
BROADBAND ACCESS EQUIPMENT CONTRACT
This
Broadband Access Equipment Contract (Broadband Access Equipment Contract) is
effective as of October 1, 2002 (the Effective Date), by and between Reliance
Infocomm Limited, a company incorporated and registered under the Companies
Act, 1956 and having its registered office at Avdesh House, Pritam Nagar, 1st
Slope, Ellis Bridge, Ahmedabad 380006, Republic of India (hereinafter referred
to as Reliance which expression, unless repugnant to the context or meaning
thereof, shall mean and include its successors and permitted assigns), and
UTStarcom Inc., a company incorporated under the laws of Delaware and having
its principal offices at 1275 Harbor Bay Parkway, Alameda, California 94502,
U.S.A (hereinafter referred to as the
Vendor which expression, unless repugnant to the context or meaning thereof,
shall mean and include its permitted successors and assigns and, together with
Reliance, the Parties and each, a Party).
RECITALS:
A. Reliance desires to purchase from the Vendor
certain Equipment appropriate for the efficient and effective installation,
operation, management and maintenance of the Broadband Access Reliance Network,
including the Initial Broadband Access Reliance Network; and
B. The Vendor, desires to provide to Reliance
such Equipment and shall, including, without limitation manufacture, supply and
deliver such Equipment, in accordance with the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration
of the mutual promises and covenants herein contained, and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Parties hereby agree as follows:
1 BACKGROUND AND OBJECTIVES
1.1 Background
Reliance
desires to obtain certain Equipment to support its Initial Broadband Access
Reliance Network and the Broadband Access Reliance Network in the Territory.
The Vendor shall perform all specific Vendor responsibilities set forth in this
Broadband Access Equipment Contract, including applicable Purchase Orders and
the Specifications. The Vendor shall review the Broadband Access Reliance
Network work performed and shall report on any exception. Notwithstanding the
foregoing sentence, Vendor shall be responsible for providing the Equipment
under this Broadband Access Equipment Contract in accordance with the
Specifications, including without limitation the Timetables. This Broadband
Access Equipment Contract is subject to the terms and conditions set forth in
the Broadband Access Network General Terms and Conditions executed by the
Parties as of the date hereof (the General Terms).
1.2 Objectives
Reliance
requires equipment that fully supports: (a) the Initial Broadband Access
Reliance Network and the Broadband Access Reliance Network, including all cost,
performance and functional requirements set forth in the relevant Documents;
(b) Interoperability; and (c) Reliances business requirements described in the
Documents (collectively, the Objectives).
The Vendor represents, warrants and covenants that the Equipment shall
be
1
fully
compatible with and fully supports the Objectives, as shall be demonstrated to
Reliance, in part, in the Acceptance Tests.
2 DEFINITIONS
As
used in this Broadband Access Equipment Contract, the following terms have the
following meanings. In addition to the
terms listed below, certain additional capitalised terms are defined in the
General Terms, the attachments to this Broadband Access Equipment Contract and
in other applicable Documents. Unless
otherwise specifically provided, all section, schedule and exhibit references
are to this Broadband Access Equipment Contract.
Base Price
has
the meaning as ascribed hereto in Section 5.2.2.
Effective Date
has
the meaning ascribed thereto in the prefatory paragraph to this Broadband
Access Equipment Contract.
Equipment Warranty
has
the meaning ascribed thereto in Section 6.1.
Price List
means
a table of list prices applicable to Equipment supplied by Vendor to Reliance
as amended from time to time as set forth herein. The Price List as of the
Effective Date is set forth in Exhibit A.
Broadband Access Equipment Contract
this
Broadband Access Equipment Contract, including all schedules, exhibits and
other attachments hereto.
3 SCOPE OF WORK, RESPONSIBILITIES AND MILESTONES
3.1 Scope of
Work.
3.1.1 The Vendor shall provide to
Reliance the Equipment set forth in the Specifications as amended from time to
time by mutual written agreement between the Parties. Vendors obligations
hereunder shall include, but not be limited to, the obligation to manufacture,
supply (including inspection and expediting) and deliver the Equipment in and
within the Broadband Access Reliance Network as designated by Reliance in
accordance with the Broadband Access Equipment Contract. All Equipment shall comply with the
Specifications and the Standards and shall be the latest and best in class,
unless otherwise specified by Reliance in writing. The Vendor shall coordinate
its efforts hereunder with all Subcontractors, Third Party Providers and the
Other Contractors, to ensure compliance with any and all supply and logistics
requirements and all Governmental Entities. All Equipment, requiring
certification shall be certified by independent and
2
appropriate professionals
licensed or properly qualified to perform such certification in all appropriate
jurisdictions, reasonably acceptable and at no cost to Reliance, if such
certification is, required by Applicable Law or the Specifications.
3.1.2 Vendor shall deliver only
such Equipment as are specifically ordered by Reliance pursuant to a Purchase
Order. Reliance shall not be obligated to pay for any Equipment not covered by
a Purchase Order.
3.2 Minimum Purchase Commitment
Notwithstanding anything to the contrary,
Reliance agrees that it shall, between [***] from Vendor (the Minimum
Committed Quantity) subject to Vendors continued conformance with the terms
set forth in the Documents.
3.3 Spare and Replacement Parts.
3.3.1 The Vendor shall provide to
Reliance the type and quantity of the spare and replacement parts to be
maintained by Reliance (the Spares) in relation to the Equipment, including
without limitation spare and replacement parts for all Upgrades and
Enhancements purchased by Reliance, and in accordance with industry standards
applicable for similar networks, as set forth on Exhibit B hereto (the Initial
Spares). Vendor shall also recommend storage locations for such Spares. Vendor warrants that the Initial Spares
shall be sufficient for the maintenance and repair of all of the Equipment
during the lifetime of the Equipment to maintain and enable the Broadband
Access Reliance Network to operate in accordance with the Specifications at all
times, provided that Reliance maintains the Spares and the Initial Broadband
Access Reliance Network in accordance with the procedures set forth in the
Specifications. With respect to Expansions, Reliance shall purchase additional
Spares to support the growth of the Broadband Access Reliance Network. Vendor shall similarly recommend the type,
quantity and storage locations of such Spares with respect to Expansions
necessary to support the growth of the Broadband Access Reliance Network.
3.3.2 Reliance shall purchase
spare and replacement parts, subject to the limitations set forth in this
Section 3.3.2, at prices no greater than [***] for the respective items of
Equipment corresponding to the spare and replacement parts determined in
accordance with Section 5.2 below. In the event that any additional spare
and replacement parts are required, which were not initially included in the
Initial Spares, such additional spare and replacement parts shall be provided
by the Vendor at [***] within the applicable time period set forth in the
Specifications if such additional spares are required by Reliance for reasons
attributable to the Vendor as a result of Vendor having to comply with the
Service Levels and/or mean time to repair (MTTR) as specified in Annexure 1A
to the Specifications (Technical Support Services) and/or Performance Criteria
as specified in the Specifications.
3.3.3 To the extent that spare
parts need to be acquired from Third Party Providers (other than
Subcontractors), the Vendor shall use all reasonable commercial
3
efforts to obtain from such
suppliers a supply of spare and replacement parts in connection with the supply
of the related Equipment, at a price to be mutually agreed between the Parties.
All spare parts obtained by the Vendor at [***] from Third Party Providers
shall be provided to Reliance at [***].
3.3.4 In all cases, until the
expiration of the applicable Product Warranty Period, and during the period
that Reliance has purchased warranty coverage under the Technical Support
Services for the Equipment, the Vendor shall, [***], replace all spare and
replacement parts utilized to replace parts that became Defective in the
Broadband Access Reliance Network or were consumed in connection with the
Vendors performance of its obligations under the Equipment Warranty and were
replaced from the Spares inventory. The
Spares inventory shall be replaced by Vendor in accordance with the procedures
set forth in Chapter 20 of the Specifications, and shall comply with the
response time and service level requirements in such Chapter 20. [***].
Following the expiration of the applicable Product Warranty Period, the Vendor
shall at all times provide spare and replacement parts at the [***] as set
forth in Section 3.3.2.
3.3.5 With respect to any spare or
replacement parts purchased by Reliance in connection with the purchase of New
Products as set forth in Section 19 of the General Terms, the Vendor shall, at
its sole cost, remove spare and replacement parts for the Existing Products
from the Spares inventory and provide Reliance with the applicable spare and
replacement parts for such New Products.
3.4 Test Bed
3.4.1 For the purpose of testing
the Vendor shall provide the Equipment set forth in the Specifications at [***]
to Reliance and such Equipment shall be shipped to the Reliance designated
location not later than [***] after the Effective Date of the Broadband Access
Equipment Contract if specifically requested for by Reliance in writing.
3.4.2 The Vendor shall supply and
install [***] to Reliance the Test Bed Laboratory and at least one of each type
of new Equipment set forth in any Purchase Order or that is planned to be
bought by Reliance before the end of the next succeeding [***].
3.4.3 In order to work towards
achieving Interoperability, Reliance may bring other infrastructure vendors
equipment into the Test Bed Laboratory. Notwithstanding anything to the
contrary, the Vendor shall share with these other infrastructure vendors that
Reliance brings into the Test Bed Laboratory all necessary interface
information to facilitate meeting the Timetables, upon suitable conditions of
confidentiality.
3.4.4 Vendor shall provide all
applicable Technical Support Services including but not limited to Updates and
Upgrades to and for the Equipment installed in the Test Bed Laboratory.
4
3.5 Shipment
Vendor
shall ensure that all Equipment constituting a COT/LET, RT, CPE and or any
other equipment related to DLC are shipped in a single shipment. Vendor shall
not ship Equipment constituting only a part of a COT/LET, RT, CPE or any other
equipment related to DLC (other than expansion or spare or replacement parts)
except after prior written approval from Reliance. The Vendor shall ship all
Spares or circuit packs in accordance with the instructions contained in the
relevant Purchase Order.
3.6 Material and Inventory Management Systems
Vendor
shall take all reasonable actions necessary to ensure that Vendors material
& inventory management system integrates and interfaces with Reliances
material & inventory management system. The extent of integration and
interfacing shall be as mutually agreed.
3.7 Capacity
Changes
Vendor shall provide Reliance with procedures
and capabilities in order to allow Reliance to move Equipment and components in
connection with changing capacities within and among Network Elements purchased
throughout the Broadband Access Reliance Network.
3.8 Applicability
Parties agree that all Purchase Orders for
Equipment issued by Reliance to Vendor on or after September 1, 2002 shall be
subject to and governed by this Broadband Access Equipment Contract. The
Parties further agree that Purchase Order number 13008676 dated August 21, 2002
shall, except for payment terms, performance bank guaranty related terms,
annual price improvement related terms and deemed Acceptance related terms,
also be governed by the terms of this Broadband Access Equipment Contract.
3.9 Marketing Fund
Vendor
shall credit Reliance against amounts payable by Reliance to Vendor for
Equipment purchases a sum of [***] as Vendors contribution to a marketing fund
for the Equipment. Vendor shall credit such sum to Reliance quarterly in
advance.
4 TERM
The
initial term of this Broadband Access Equipment Contract is [***] from the
Effective Date, subject to the terms and conditions of this Broadband Access Equipment Contract
including, without limitation, the termination provisions set forth in Section
0. This Broadband Access Equipment Contract shall upon the mutual written agreement
of the Parties be renewed for [***] on the same terms and conditions contained
herein.
5
5 PRICING AND INVOICING
5.1 Price List
5.1.1 The prices as set forth in
the Price List shall be applicable to all purchases by Reliance of Equipment,
including without limitation spare and replacement parts (subject to Section
3.3.2).
5.1.2 Vendor shall notify Reliance
in writing in the event Vendor proposes to modify the Price List and Reliances
prior written consent shall be required before any such modification shall take
effect. The Price List shall be amended from time to time to add equipment,
components, hardware, accessories, spares, test bed and documentation as agreed
by the Parties.
5.1.3 Anything to the
contrary in the Documents notwithstanding, at no time will Reliance be liable
to pay a Net Price for any Equipment in excess of the [***] for such Equipment
that is determined by reference to the Price List, as further reduced by all
applicable discounts, rebates and credits available to Reliance under the
Documents.
5.2 Determination of Net Price
5.2.1 The Net Price for any
Equipment purchased by Reliance under this Broadband Access Equipment Contract
shall be determined in accordance with the provisions of Section 5.2. [***].
5.2.2 The Net Price of any
Equipment that is a part of the Broadband Access Reliance Network shall be
determined as set forth in paragraphs a, b, c, d, e, f, g and h below:
[***].
5.3 Invoicing
Terms
All Equipment purchased by Reliance that
forms a part of the Initial Broadband Access Reliance Network shall be invoiced
as set forth in this Section and paid in accordance with Section 13 of the
General Terms.
[***].
5.4 Invoicing Terms for all other Equipments:
All
Equipment purchased by Reliance that forms a part of Expansions shall be
invoiced as set forth in this Section and paid in accordance with Section 13 of
the General Terms.
[***].
6
5.5 Currency and Mode of Payments
5.5.1 The value of all Equipment
purchased by Reliance under this Broadband Access Equipment Contract shall be
computed based on Net Prices expressed in [***] in accordance with the
provisions of the General Terms, unless otherwise agreed by the Parties.
5.5.2 All payments shall be
payable by wire transfer.
5.6 Total Cost
Basis
[***].
6 WARRANTIES
6.1 Equipment
Warranty.
6.1.1 The Vendor warrants that,
during the Product Warranty Period, all Equipment shall conform with and
perform in accordance with the Specifications and shall be free from Defects
and Deficiencies (the Equipment Warranty).
6.1.2 During the Product Warranty
Period, Vendor shall provide the warranty services described under the
Documents at no additional cost to Reliance.
6.2 Breach of
Warranties.
6.2.1 In the event of any breach
of the Equipment Warranty, the Vendor shall promptly repair or replace the
defective or nonconforming Equipment or otherwise cure any Defects and
Deficiencies so that the Equipment and Broadband Access Reliance Network shall
perform in accordance with the Specifications.
If the Vendor fails or refuses
to promptly repair, replace and/or cure such defect, Reliance may, in
addition to exercising any other remedies available to it under the contract,
law and/or equity, at its option ;
i) elect to have
such Defective Equipment, replaced, repaired or corrected by itself or any
third party, and Vendor shall in such an event (a) provide all technical
details, documentation, and other information required for such repair replacement
or correction; and (b) reimburse Reliance for all direct costs incurred in
connection with such repair, replacement or correction; and/or
ii) elect to have
the Vendor provide a credit or refund based on the original purchase price of
such Defective Equipment.
6.2.2 The Warranty Period for all
repaired, replaced or corrected Equipment shall be the longer of :
a [***] from the date of
delivery of the repaired, replaced or corrected Equipment; or
7
b the un-expired term of the
original Product Warranty Period.
6.2.3 Notwithstanding the
foregoing, the Vendor shall have no liability pursuant to this Section 6.2
for:
a damage caused by an event of Force Majeure other
than to the extent that the Equipment should have been able to withstand any
such Force Majeure event, in accordance with the Documents;
b alterations by Reliance and/or the Vendor at
Reliances request against Vendor recommendations and inconsistent with this
Broadband Access Equipment Contract, excluding normal maintenance or parameter
changes;
c damage or Deficiencies resulting from a failure by
Reliance to follow the Specifications;
d damage resulting from the gross negligence or
willful misconduct of Reliance, or any of its employees, agents or contractors
(other than the Vendor and its Subcontractors); or
e performance or damages directly resulting from the
failure of the equipment or software (or any related services) not provided by
the Vendor or any Subcontractors (provided that Vendor has not contributed to
such failure or failed to comply with Vendors project management
responsibilities which contributed to such failure), provided that this shall
not limit the Vendors obligations as to Interoperability pursuant to the terms
of the Documents;
except when any such damage or Deficiencies is done, made or caused by
Vendor or any Subcontractor or their employees or agents.
6.3 Repair and
Return.
6.3.1 The provisions of Repair and
Return Services required to be provided during the Equipment Warranty and
Technical Support Services are specified in Annexure 1A to the Specifications.
In the event of a breach of the Equipment Warranty, the Parties shall follow
the procedures set forth in the Specifications.
6.3.2 In the event that the remedy
of any breach of the Equipment Warranty, Reliance will notify within a
reasonable time period and if such remedy
requires the installation or provision of additional equipment, software
and/or services, the Vendor shall provide such equipment, software and/or
services, at [***] to Reliance. Where Reliance cannot remove and reinstall the
Defective Equipment without incurring significant time and expense, Vendor
shall repair, replace or correct the Equipment at Reliances site. In such event Vendor shall perform all such
repair, replacement and correction at Reliances site without disrupting, the
operation of the Reliance Network or any part thereof. Vendor shall be
responsible at [***], for replacement of cable and wire products site
restoration and performing all work incidental to the repair replacement and
correction of Defective Equipment. Reliance shall
8
allow the Vendor to inspect
the Equipment, Software, Services, or the Network, as the case may be, on-site
in order to effect the necessary repairs.
6.3.3 During the Product Warranty
Period and the period that the Technical Support Services is in effect, the
Vendor shall be [***] associated with: (a) removing or disconnecting the
Equipment subject to the warranty claim as set forth in the Specifications; (b)
dismantling and reinstalling surrounding equipment and property in connection
with removing or disconnecting the Equipment that is the subject of such
warranty claim as set forth in the Specifications; and (c) all on-site and
off-site repair and related activities (including without limitation
reinstallation after repair) for Equipment as set forth in the Specifications.
6.4 Other Services To Be
Provided By The Vendor Under Warranty Services-
During the Product
Warranty Period, in addition to the warranty obligations described in this
Broadband Access Equipment Contract, the Vendor shall also provide, [***], all
services as set forth in Annexure 1A to the Specifications..
6.5 Third Party Provider
Warranties.
a) With respect to Equipment furnished by any Third
Party Provider (excluding Subcontractors), all warranties given to the Vendor
by such Third Party Provider shall inure, to the extent applicable or permitted
by law, to the benefit of Reliance, and Reliance shall have the right, at its
sole discretion, to enforce such warranties directly and/or through the Vendor.
All warranties with respect to such Equipment provided by such Third Party
Providers shall be given to Reliance on a pass-through basis.
b) The Vendor shall be responsible for monitoring and
managing of all warranties and warranty services provided by Third Party
Providers if required, by mutual agreement between the Parties. In the event of
any dispute with respect to either identifying or resolving any problems or
defects or their root cause in the Network, the Vendor shall be responsible to
establish the co-ordination among all Persons connected to such
problems/defects and establish the process of problem resolution and ensure an
early solution.
6.6 Disclaimer
The
foregoing Warranties are in lieu of all other express and implied warranties of
merchantability and fitness for a particular purpose.
7 TERMINATION AND EVENTS OF DEFAULT
7.1 Reliances Right of Termination.
7.1.1 Reliance may suspend all or
any portion of this Broadband Access Equipment Contract, in accordance with the
terms of Sections 3.15 of the General Terms. Reliance also has the right to terminate all or any portion of
this Broadband Access Equipment Contract upon the occurrence of any
9
Vendor Event of Default in
accordance with the terms of Section 23.1 of the General Terms.
7.2 Vendors Right of Termination.
The Vendor shall have the option to suspend or terminate this Broadband
Access Equipment Contract in accordance with the terms of Section 23.2 of
the General Terms.
* *
* * *
10
Reliance and the Vendor have read
this Broadband Access Equipment Contract including all Schedules and Exhibits
hereto and agree to be bound by all the Terms and Conditions hereof and
thereof.
IN
WITNESS WHEREOF, the Parties have executed this Broadband Access Equipment
Contract as of the date first above written.
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RELIANCE |
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By: |
/s/ Prakash C. Bajpai |
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Name: |
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Title: |
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By: |
/s/ S. Ramesh |
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Name: |
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Title: |
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UTSTARCOM INC., |
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By: |
/s/ Michael J. Sophie |
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Name: |
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Title: |
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11
ANFTTB Webstore Equipment
Price List
[***]
ANFTTB Model 1 Equipment
Price List
[***]
ANFTTB Model 2 Equipment
Price List
[***]
ANFTTB Spares/Expansions
Equipment Price List
[***]
Recommended Spares List
[***]
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