Broadband Access Software Contract – Reliance Infocomm Ltd. and UTStarcom Inc.
STRICTLY CONFIDENTIAL
BROADBAND ACCESS SERVICES CONTRACT
between
RELIANCE INFOCOMM LIMITED,
Reliance
and
UTSTARCOM INC.,
Vendor
Dated as of October 1, 2002
Table of Contents
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ii
EXHIBITS
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Exhibit A |
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Pricing |
iii
BROAD BAND ACCESS SERVICES CONTRACT
This
Broadband Access Services Contract (Broadband Access Services Contract) is
effective as of October 1, (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 Services appropriate for the efficient and effective installation,
commissioning, 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 Services 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 Services to support
the Broadband Access Reliance Network in the Territory. The Vendor shall perform all specific Vendor
responsibilities set forth in this Broadband Access Services Contract,
including applicable Purchase Orders and the Specifications. This Broadband
Access Services 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 services that fully support: (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 as set forth in the Specifications; and (c) Reliances
business requirements described in this Broadband Access Services Contract
(collectively, the Objectives). The
Vendor represents, warrants and covenants that the Services are fully
compatible with and fully supports the Objectives, as shall be demonstrated to
Reliance, in part, in the Acceptance Tests.
3
2 DEFINITIONS
As
used in this Broadband Access Services 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 Services Contract and
in other applicable Documents. Unless
otherwise specifically provided, all section, schedule and exhibit references
are to this Broadband Access Services Contract.
Effective Date
has
the meaning ascribed thereto in the prefatory paragraph to this Broadband
Access Services Contract.
FCAPS
shall mean
Fault Management, Configuration, Accounting, Performance and Security
Management.
Services Warranty
has
the meaning ascribed thereto in Section 6.1.
Services Warranty Period
with
respect to all Services that relate to Products that form a portion of the
Broadband Access Reliance Network, a period of [***] following Acceptance of such portion of the Broadband Access
Reliance Network.For Services provided by the Vendor under the TSS, there shall
be a warranty period of [***] from satisfactory acceptance by Reliance of the
repair or replacement by the Vendor of any Network Element provided that in the
event such repairs occur during the applicable Product Warranty Period, then
the warranty period shall be the greater of [***]. With respect to all other Services, the Services Warranty Period
shall be [***] from the date of completion of such Services.
Trainer Day
the
provision of Training Services to personnel designated by Reliance, by one
Vendor Personnel [***].
Trainer Fee
has
the meaning ascribed thereto in Section 3.5.3
Training Services
has
the meaning ascribed thereto in Section 3.5.1
4
Broadband
Access Services Contract
this
Broadband Access Services Contract, including all schedules, exhibits and other
attachments hereto.
Services Price List
means
the Charges for the Services to be provided by the Vendor as set forth in
Exhibit A.
3 SCOPE OF WORK
3.1 Scope of Work.
3.1.1 The Vendor shall provide to
Reliance the Services set forth in the relevant Purchase Order pursuant to and
in accordance with this Broadband Access Services Contract. All Services shall
comply with the relevant Specifications and the Standards. 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
transportation requirements and all Governmental Entities. All Services, requiring certification shall
be certified by independent and 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. Vendor shall provide to
Reliance, necessary installation certificates, as per EPCG regulations for
which the Parties will mutually agree on a format and procedure.
3.1.2 Reliance shall purchase the
Services described herein by Purchase Orders pursuant to the price list set
forth in Exhibit A and shall pay for such Services pursuant to Section 5.2.
Vendor shall perform only such Services as are specifically ordered by Reliance
pursuant to a Purchase Order. Reliance currently intends that Vendor shall
provide Services (other than Technical Support Services) with respect to the
Initial Broadband Access Reliance Network only. Reliance shall not be obligated
to pay for any Services not covered by a Purchase Order.
3.2 Services
3.2.1 Vendor shall provide all
Services purchased under a Purchase Order and in accordance with the relevant
Specifications on an end-to-end basis to ensure successful completion of the
Work (provided, however, that installation and commissioning Services shall be
limited to the Services requested ordered in the applicable Purchase Order),
which Services include but are not limited to :
a Product logistics,
installation and commissioning (including commissioning testing) Services
including, but not limited to, ready for
5
installation inspection and
validation and as-built documentation (redline versions); and
b Management Services
including, but not limited to: program management, optimization, engineering,
network design, network integration, integration with network management system
(for FCAPS functionality), network operations center, management of Third Party
Products, Network Acceptance Testing, Product Integration including Test Bed
integration, Test Bed operation support, and Network O&M.
c At Reliances request Vendor
shall mobilize and commit sufficient resources necessary to successfully
implement the Initial Broadband Access Reliance Network with the approval of
Reliance, as required, including subject matter experts (subject to the experience
requirements set forth in Section 3.10.2 below).
d. Acceptance Testing, Training, TSS , Knowledge Management
No
Services described in this paragraph 3.2(b), shall be provided unless the
Parties mutually agree to a budget and pricing for such Services in advance of
accepting a Task Order for such Services. In the event such budget is exceeded,
each Party shall be responsible for such excess in proportion to its relative
fault or causation. Any disagreement on
the budget and pricing shall be resolved by the Parties by negotiations in good
faith within [***]. In the event that the Parties are unable to reach mutual
agreement on the budget and pricing, the Parties shall work together to ensure
a mutual resolution that does not adversely affect the relevant schedule.
3.2.2 At Reliances request Vendor
shall mobilize and commit sufficient resources necessary for Program
Management. Reliance shall pay Vendor for program management as set forth in
Exhibit A. In the event that Reliance requires Vendor Personnel to be deputed
to a Network Location, Vendor shall depute such Vendor Personnel. Reliance
shall pay Vendor the Charges set forth in Exhibit A for such Vendor Personnel.
3.3 Tools and Test Equipment for
Services
3.3.1 Vendor agrees, [***], to
provide all tools (including Vendor Internal Tools) tackles and test equipment
along with their accessories and consumables, to perform the installation,
commissioning, and acceptance testing Services of Products for the Initial
Broadband Access Reliance Network Upon Acceptance of the Initial Broadband
Access Network, Vendor shall remove all
such tools, tackles and test equipment.
3.3.2 In order to work towards
achieving Interoperability, Reliance may bring other infrastructure vendors
equipment into the Test-Bed Laboratory.
Notwithstanding
6
anything contained herein to the contrary, the Vendor shall share with
these other infrastructure vendors that Reliance brings into the Test-Bed
Laboratory, all necessary interfacing information (under suitable conditions of
confidentiality and/or licensing agreements) to assure the timely achievement
of each of the mutually agreed Interoperability Milestones in accordance with
the Time Tables and schedules set forth in the relevant Purchase Orders.
3.4 Testing and Acceptance
Vendor
hereby agrees to strictly adhere to the testing and acceptance procedure set
forth in the Specifications. Reliance shall co-operate on a commercially
reasonable basis with Vendor to ensure the successful completion of testing and
acceptance activities.
3.5 Training Services
3.5.1 The Vendor shall provide to
Reliance, access to all the training courses and the right to use (RTU) to
all the training courses and training course materials for which Vendor owns
intellectual property rights and/or the license to use and as are available
from time to time that are relevant to the Products supplied for the Broadband
Access Reliance Network (the Training Services). The RTU shall be provided
with permission to reproduce the course material for training Reliance
personnel, including associates and contractors retained for installation,
commissioning and operational support of the Broadband Access Reliance Network.
Vendor shall update such course material for all such courses from time to
time. Vendor shall provide all Training Services in accordance with the
Specifications either at the Vendors global training centers or at Reliance
training facilities in the Republic of India, with such location to be decided and
advised by Reliance. The Parties shall mutually determine the method and manner
of the provision of Training Services, including without limitation, class
planning, scheduling and co-ordination. The Training Services shall be provided
by qualified and experienced training personnel, as approved by Reliance.
Vendor shall provide Reliance with the resumes of all of Vendors and any
Subcontractors training personnel to enable Reliance to determine, in its sole
discretion, which training personnel should provide the Training Services. Such
training personnel shall have at least [***] of Access Network training
experience in the field in which they are proposed to train. Vendor shall also
be obliged to train Reliances trainers and shall perform, with Reliances
approval, skills audits for all Reliance personnel trained to be instructors
for Reliance. Periodically, mutually agreed training schedules shall be agreed
upon for imparting such training courses. The content of these training courses
shall be focussed on the implementation, operation and maintenance of the
RelianceBroadband Access Network.
3.5.2 Vendor shall, during the
term of this Broadband Access Services Contract, provide to Reliance all
updated course materials relating to the Products for all Training Services
provided to Reliance hereunder from time to time.
7
3.5.3 Reliance agrees to reimburse
Vendor for all Trainer Days as set forth in Exhibit A hereto. Reliance shall
have the right, in its sole discretion, to determine the method and manner of
utilisation of the above mentioned Trainer Days. Notwithstanding anything to
the contrary set forth above, Reliance shall not be liable to pay for Vendor
trainer personnels rest and recreation.
3.6 Management Services
Vendor
shall provide the management Services described in the Specifications at the
rates set forth in of Exhibit A. Vendor shall provide sufficient resources to
complete the Work specified in the Specifications and associated Purchase Orders
for the Work. No Services described in Section 3.2.1(c,) shall be provided
unless the Parties mutually agree to a budget for such Services prior to
accepting a Purchase Order.
3.7 Knowledge Management System
Vendor
agrees that, among other things, all value engineered standards,
specifications, designs, and relevant Vendor practices, including but not
limited to testing and commissioning procedures, technical and standard
documentation for facilities, maintenance and operational procedures and standards, documentation, reports, drawings, etc.,
relating to the implementation, management and operation of the Broadband
Access Reliance Network shall be delivered to Reliance, provided that the
Materials are utilised solely for the implementation, operation and management
of the Broadband Access Reliance Network and are subject to the confidentiality
provisions set forth in Section 24.14 of the General Terms and this
Section. Upon delivery of such
materials to Reliance, Vendor grants to Reliance a [***] license solely for use
in the Territory to internally use, execute, to make sufficient copies for its
own internal use, and to modify and translate them and/or combine them with
other materials (at Reliances own risk) in order to prepare other works for
Reliances own internal use, provided, however that Reliance shall not have the
right to license or sell any software that is a Derivative Work of software
delivered by Vendor pursuant to this Section 3.9 Reliance acknowledges that all
information and materials delivered under this Section 3.9 are delivered on an
as-is-where-is basis. Notwithstanding the above, for any software and/or
other Materials originating from or being proprietary from a third party, if
the Vendor has any limitation under a license and/or other agreement with such
third party, Vendor will advise Reliance on how such third party software
and/or Materials can be acquired or used, to enable Reliance to decide whether
to acquire or use such third party software and/or Materials. Wherever possible,
Vendor shall attempt, on a reasonable efforts basis, to obtain such third
partys consent for use of such software and/or Materials by Reliance without
an additional charge to Reliance. Vendor shall use its knowledge management
system for the performance of the Services and shall provide Reliance and the
Users access to Vendors knowledge database during the term of this Broadband
Access Services Contract. Vendor shall facilitate, during the performance of
Services, tapping of its pool of consultants, and industry experts as
reasonably requested by Reliance. Reliance agrees that Reliance shall be
responsible to procure any hardware necessary to utilise any materials provided
to Reliance under this Section and to pay for
8
any additional services
requested by Reliance relating to this Section under the terms of this Services Agreement.
3.8 Policies Applicable to
Vendor Personnel
3.8.1 Vendor and Reliance shall
follow the mobilization procedure as per the PAF and Roster process attached
to the General Terms for each of the Key Personnel and those Vendor Personnel
mobilized to provide the Services and who are charged to Reliance on a per diem
basis.
3.8.2 Unless otherwise mutually
agreed between the Parties in writing prior to their mobilization on the job,
the Vendor shall engage only those personnel to perform Services, that at all
times meet each of the following criteria:
[***]
3.8.3 Reliance shall request
additional information or approve or disapprove PAFs submitted in accordance
with the Documents in [***]. If
Reliance does not so respond to the submitted PAF, the Vendor shall give notice
to Reliance for necessary action and in the event of Reliance not responding in
the next [***], the submitted PAFs shall be deemed to have been approved. At the Vendors option the Vendor may
provide multiple resumes in advance for Reliances review. Reliance shall
request further information, approve, or disapprove such individuals as set
forth in this Section 3.10.3. Reliance shall also provide invitation
letters for expediting visa and entry approvals for such individuals to enable
such individuals to travel to India as required after completion of the
approval process set forth in the Documents.
3.8.4 In cases where the Vendor is
required to use Vendor Personnel to carry out Work outside of India, such
Vendor Personnel will be subject to approval by Reliance (acting reasonably and
in a timely manner) prior to starting any work.
3.8.5 For Subcontractors carrying
out Services under section 3.2.1(a) above, the engagement of the
Subcontractors personnel are not covered under this Section 3.10. These
Subcontractors will be contracted by the Vendor as set forth in the General
Terms. However, Reliance shall have the right, with Vendors approval, to pay
such Subcontractors directly.
3.8.6 If Reliance requires the
services of Vendor Personnel for future support or warranty purposes, Vendor
shall use [***] efforts make available the services of personnel who were involved
in the performance of the original or related Services. However if such
personnel are no longer employed by the Vendor or are otherwise prevented by
reasons of health issues at the time or other issues beyond Vendors control,
Vendor and Reliance shall identify the best alternative and mobilize
alternative personnel.
9
3.8.7 For Work performed on a time
and materials basis, Vendor shall prepare and submit weekly timesheets for
signature by Reliances designated representative on a weekly basis in
accordance with the Procedures Manual. The normal working week shall be [***] a
week.
3.8.8 On a [***]
basis, and at the end of this Broadband Access Services Contract, Vendor shall submit its invoice(s) and supporting
documents in accordance with this Services Agreement and the General Terms.
3.9 Technical Support Services:
3.9.1 Vendor shall,
during the Term of this Broadband Access Services Contract, provide the
Technical Support Services as set forth in Annexure 1A to the
Specifications, including but not limited to repair and return of Defective
Equipment, provision of all Software
and firmware Updates and Upgrades and firmware Updates, access to
Vendors Indian and global Technical Assistance Centre. Vendor shall provide
Technical Support Services during the Product Warranty Period. Reliance shall
pay Vendor for the Technical Support Services as set forth in Exhibit A
following the expiry of the applicable Product Warranty Period. Parties have
agreed that the Vendor shall provide the TSS for an initial period of [***].
3.9.2 Vendor shall ensure the
continued availability of Vendor personnel having the required skill and
experience to be located at Reliances Network Operations Centres (NOC) at
[***] to Reliance. In addition, Vendor shall also staff its helpdesk in
accordance with the requirements set forth in Annexure 1A to the Specifications
at [***] to Reliance. In the event that, pursuant to Reliances specific
written request, any additional Vendor Personnel are requested to be deputed to
a Network Location, Vendor shall make such additional Vendor Personnel
available to Reliance and Reliance shall reimburse Vendor for [***] incurred by
such Vendor Personnel. [***].
4 TERM
4.1.1 The initial term of this Broadband
Access Services Contract is [***] from the Effective Date, subject to the terms
and conditions of this Broadband Access Services Contract including, without
limitation, the termination provisions set forth in Section 7. This
Broadband Access Services Contract shall upon the mutual written agreement of
the Parties, be renewed for [***] on the same terms and conditions contained
herein.
5 PRICING AND INVOICING
5.1 Determination of Net Price
5.1.1 The Net Price for any
Services purchased by Reliance under this Broadband Access Services Contract
shall be determined in accordance with the provisions
10
of Section 5.1 and is
[***] on or with respect to the provisions of such Services. [***].
5.1.2 The Net Price of any
Services shall be the Net Price for such services specified in the Services
Price List All amounts in excess of the Net Price paid by Reliance to the
Vendor for Services shall be handled in accordance with the provisions of the
General Terms. The Net Prices set forth in the Services Price List are [***].
5.1.3 The Net Price on the
Services Price List shall be fixed for a period of [***] from the Effective
Date. At such time, the Parties shall re-negotiate such Net Prices to be fixed
for a subsequent [***] period to reflect the changes in the labour rates during
the preceding [***]. This process shall be repeated every [***] thereafter
during the Term of this Broadband Access Services Contract.
5.2 Invoicing Terms
All Installation and Commissioning Services
provided by Vendor to Reliance shall be invoiced as set forth in this Section
and paid in accordance with Section 13 of the General Terms.
[***].
Where Services are provided which are not
rendered for Products, such Services shall be invoiced and paid in accordance
with Section 13 of the General Terms and mutually agreed milestones.
5.3 Payments for Services
The
value of the Services described in Section 3.2.1(a) shall be denominated in
[***] in accordance with the provisions of the General Terms, unless otherwise
agreed by the Parties. The amount paid is inclusive of all and any taxes levied
by any Governmental Entity on the provision of Services provided by the Vendor.
6 WARRANTIES
6.1 Services Warranty.
The
Vendor warrants that, during the Services Warranty Period, all Services shall
conform with and perform in accordance with the Specifications and shall be
free from Defects and Deficiencies (the Services Warranty).
6.2 Breach of Warranty.
6.2.1 In the event of any breach of the Services Warranty, the Vendor
shall promptly repair, replace, provide additional services or otherwise
correct (including re-performance of Services) at [***], any Defective Services
so that the Services and Broadband Access Reliance Network comply with the Specifications. If the Vendor
11
fails or refuses to promptly
cure any such Defective Services, Reliance may, in addition to exercising any
other remedies available to it under
the contract, law and/or equity, Reliance may at its option.(i) elect to have
such Defective Services, replaced, repaired or corrected by 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 costs and expenses incurred in
connection with such repair replacement or correction; or
(ii) elect to have the Vendor provide (a) a credit or refund based on
the original purchase price of such Defective Services, as the case may be.
The warranty period for all
repaired, replaced or corrected
Services shall be the longer of
[***].
6.2.2 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 Services 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 Services Contract, excluding normal maintenance or parameter
changes;
c)damage or Deficiencies resulting from a
failure by Reliance to follow the Specifications; or
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 (excluding OMC Products for which
Vendor is responsible), 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 Cure Procedures.
6.3.1 If Reliance claims a breach
of any warranty , its shall notify the Vendor of the breach within a reasonable
period of time after its determination that the breach has occurred. For
provision of repair, replacement and correction of Defective Services, Reliance
shall allow the Vendor to inspect the Work on-site and to perform any repairs,
replacements and corrections that can
be performed on Site
12
without disrupting the
operation of the Broadband Access Reliance Network or any other the Network
Element relating to such Services.
6.3.2 In the event that the remedy
of any breach by the Vendor of the Services Warranty requires the installation
or provision of replacement equipment, software and/or services, the Vendor
shall provide such equipment, software and/or services, at no cost or expense
to Reliance.
6.3.3 During the Services Warranty
Period, the Vendor shall be solely responsible for all costs and expenses
associated with: (a) cure, repair, replacement
or correction of the Services subject to the warranty claim; (b) dismantling
and reinstalling equipment and property in connection with cure or correction
of the Services that are the subject of such warranty claim; and (c) all
on-site and off-site repair and related activities for Services.
6.4 Other Services To Be
Provided By The Vendor Under Warranty Services-
During
the Service Warranty Period, in addition to the warranty obligations described
herein in this Service Contract, the Vendor shall also provide all services as
set forth in Annexure 1A to the Specifications (Technical Support Services) in
accordance with the Documents.
6.5 Third Party Provider
Warranties.
a)
With respect to Services furnished by any Third Party Provider (other than
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 Services
provided by such Third Party Providers shall be given to Reliance in accordance
with the General Terms.
b)
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 the 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.
Reliance
may suspend all or any portion of this Broadband Access Services Contract, in
accordance with the terms of Section 3.16 and Section 23.1.2 of the
General Terms.
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Reliance
also has the right to terminate all or any portion of this Broadband Access
Services Contract 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 Services Contract in accordance with the terms of Section 23.2 of
the General Terms.
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Reliance and the Vendor have read
this Broadband Access Services 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 Services
Contract as of the date first above written.
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By: |
/s/ Prakash C. Bajpai |
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/s/ S. Ramesh |
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UTSTARCOM INC., |
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15
Exhibit A – Pricing (Broadband Access Services Contract)
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