Technical License and Assistance Agreement – UTStarcom Inc. and Mitsubishi Electric Corp.
TECHNICAL LICENSE AND ASSISTANCE AGREEMENT
This Agreement is dated and entered into as of 2nd day of November, 1999
(hereinafter referred to as 'Effective Date') by and between UTStarcom, Inc.,
a Delaware corporation with its place of business at 1275 Harbor Bay Parkway,
Alameda, CA 94502, USA (hereinafter referred to as 'UTStarcom') and
Mitsubishi Electric Corporation acting through its Mobile Communication
Business Division, a Japanese corporation with offices at 8-1-1
Tsukaguchi-honmachi, Amagasaki, Hyogo 661-8661, Japan (hereinafter referred
to as 'Mitsubishi').
WHEREAS, Mitsubishi has engaged in the development, manufacture, and sale of
PHS (Personal Handyphone System) handsets and owns technical information
which is essential to or helpful in the development and manufacture of PHS
handset.
WHEREAS, UTStarcom desires to obtain from Mitsubishi such technical
information and technical assistance together with licenses defined herein in
order to develop, manufacture and sell PHS handset for itself, and
WHEREAS, Mitsubishi is willing to supply UTStarcom with such technical
information, technical assistance and to grant a license on terms and
conditions herein.
NOW, THEREFORE, in consideration of the premises and of the mutual covenants
and conditions herein contained, the Parties mutually agree as follows:
1. DEFINITION
As used in this Agreement, the following terms shall have the meanings set
forth below:
(a) AGREEMENT. 'Agreement' shall mean this Technical License And
Assistance Agreement including all Exhibit(s) thereto.
(b) LICENSED TECHNOLOGY. 'Licensed Technology' shall mean the technical
information and data except a third party technology, owned and disclosed by
Mitsubishi under the 'UTSTARCOM, Inc., MUTUAL NON-DISCLOSURE AGREEMENT
[KS99-012A]' concluded on March 2, 1999 and 'UTSTARCOM, Inc. AMENDMENT
AGREEMENT TO MUTUAL NON-DISCLOSURE AGREEMENT [KS99-089B]' concluded on
August 23, 1999 between the Parties, as specifically set forth in the
Exhibit A as Technical Document.
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(c) PARTY/PARTIES. 'Party' shall mean either UTStarcom or Mitsubishi.
'Parties' shall mean both UTStarcom and Mitsubishi.
(d) SUBSIDIARY. 'Subsidiary' shall mean any entity, a majority of whose
voting shares or securities are owned or controlled, directly or indirectly
by a Party, provided that any such entity shall be deemed to be Subsidiary
only so long as such majority control exists.
(e) NET. 'Net' shall mean in this Agreement a net price actually received
by Mitsubishi after deducting any and all taxes, duties and penalties from
the gross amount including any and all taxes, duties and penalties paid by
UTStarcom.
2. GRANT OF LICENSE
2.1 GRANT OF LICENSE
(1) Subject to the terms and conditions of this Agreement, Mitsubishi hereby
grants to UTStarcom a [*] license to use the Licensed Technology for the term
of this Agreement for the purpose of
(i) evaluation and development of UTStarcom's PHS handset and
(ii) feasibility study for the business of UTStarcom's PHS handset
within the territory of the [*].
This Agreement does not cover any license to use the Licensed Technology for
any purpose including, but not limited to making or selling UTStarcom's PHS
handset, other than stated above, however, each Party agrees to negotiate and
determine additional license and its conditions separately upon discussion
between the Parties by the [*].
(2) UTStarcom may sub-license the Licensed Technology granted hereunder to
its Subsidiaries on condition that UTStarcom shall put the Subsidiaries the
same obligations of UTStarcom under this Agreement with written agreement,
and shall assume whole responsibility to Mitsubishi for the actions or
omissions of said Subsidiaries.
(3) With Mitsubishi's prior written approval, UTStarcom may have the
Licensed Technology and Confidential Information used to a third party [*] as
its subcontractors for the development and manufacture of UTStarcom's PHS
handset, provided that UTStarcom shall put such third party the same
obligations of UTStarcom under this Agreement with written agreement, and
shall be fully responsibility to Mitsubishi for the actions or omissions of
the obligations by such third party.
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[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
2.2 LIMITATION OF LICENSE
UTStarcom shall not use trademarks, trade names, logos or other identifying
labels of Mitsubishi or Mitsubishi's customers in any form or manner without
prior written approval of Mitsubishi.
3. SUPPLY OF TECHNICAL DOCUMENT & TECHNICAL ASSISTANCE
3.1 TECHNICAL DOCUMENT
Mitsubishi shall furnish one (1) copy of the technical document and programs
for Mitsubishi's PHS handset identified in Exhibit A in the language
originally written (hereinafter referred to as 'Technical Document') to
UTStarcom at the following address within thirty (30) days after the
Effective Date:
Hong Liang Lu, President & C.E.O.
UTStarcom, Inc.,
1275 Harbor Bay Parkway, Suite 100 Alameda,
California 94502, USA
3.2 TECHNICAL ASSISTANCE
At UTStarcom's request, Mitsubishi will provide UTStarcom additional
technical information or data or training and technical services as set forth
in Exhibit B [*] [*] to assist UTStarcom to develop its PHS handset, with
charge (hereinafter referred to as 'Technical Assistance').
4. PAYMENT
4.1 PAYMENT
In consideration of the license granted herein. Technical Document, Technical
Assistance and Tooling for TL-PH2, UTStarcom agrees to make a nonrefundable
payment to Mitsubishi as follows:
(i) License Fee:
Net [*], which amount is payable within [*] after the Effective Date of this
Agreement.
(ii) Technical Document Fee:
[*], which amount is payable within [*] after UTStarcom's receipt of all
items identified in Exhibit A.
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[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
(iii) Technical Assistance Fee:
A price due for each item of Technical Assistance based on the hourly rate
identified in Exhibit B, which amount is payable within [*] after UTStarcom's
receipt of invoice issued by Mitsubishi on quarterly basis.
(iv) Tooling Fee for TL-PH2
1. Net price due for each item of Tooling for TL-PH2 described in Exhibit B
(3) A, which amount is payable within [*] after Mitsubishi's delivery of each
item to UTStarcom. UTStarcom shall make a written request to Mitsubishi to
sell the said item within [*] after the Effective Date of this Agreement.
2. Net price due for each item of Tooling for TL-PH2 described in Exhibit B
(3) B, which amount is payable within [*] after a written request of
UTStarcom to Mitsubishi to use the said item. UTStarcom shall make such a
request to Mitsubishi within [*] after the Effective Date of this Agreement.
4.2 MITSUBISHI'S BANK ACCOUNT
UTStarcom shall make all payments due under this Agreement in Japanese Yen by
wire transfer to Mitsubishi at the following address:
Bank name: The Bank of Tokyo-Mitsubishi, Ltd., Head Office, Tokyo
Bank address: 7-1, Marunouchi 2-Chome, Tokyo 100-8310, Japan
Account name: Mitsubishi Electric Corporation
Account No: [*]
4.3 TAXES
Each party shall bear any and all taxes, duties and penalties imposed in its
own country on any payment made under this Agreement. UTStarcom is entitled
to withhold the applicable American withholding taxes from the gross amount
including any and all taxes, duties and penalties paid by UTStarcom under
this Agreement and pay them to the competent tax authorities in USA. In the
event that UTStarcom withholds the taxes from such gross amount, UTStarcom
shall promptly send to Mitsubishi official tax receipts issued by said
authorities sufficient enable Mitsubishi to support a claim for tax credit in
respect to such withholding taxes paid by UTStarcom.
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[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
4.4 OTHER COSTS AND EXPENSES
(1) UTStarcom shall bear any costs and expenses in relation to traveling,
transportation, shipping, freight, insurance, packing, living, lodging,
meals, communication, office space, equipment and so on, incurred under this
Agreement.
(2) UTStarcom shall bear any costs and expenses incurred by Mitsubishi in
relation to the Technical Assistance or any other assistance provided by
Mitsubishi in addition to the same stated hereunder at the rate of [*].
5. TREATMENT OF PROPRIETARY RIGHTS
UTStarcom agrees that Mitsubishi shall retain all rights including patent
rights, design rights, copyrights and any other intellectual property right,
title and interest to the Licensed Technology and Confidential Information.
If a patent, design, or any other intellectual property are acquired by
UTStarcom based on any Licensed Technology or Confidential Information
supplied from Mitsubishi under this Agreement, UTStarcom shall consult with
Mitsubishi with respect to the manner of application, the scope of
intellectual property rights to be acquired, who is going to be the owner
thereof and other details necessary for application.
6. DISCLAIMER OF WARRANTY AND LIABILITY
(1) ANY LICENCED TECHNOLOGY, CONFIDENTIAL INFORMATION LICENSED BY MITSUBISHI
HEREUNDER IS PROVIDED ON 'AS IS' BASIS. MITSUBISHI DISCLAIMS ANY WARRANTY,
STATUTORY, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTY
OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, TITLE, ARISING FROM
USE OF ANY LICENSED TECHNOLOGY OR CONFIDENTIAL INFORMATION PROVIDED HEREUNDER.
MITSUBISHI ALSO MAKES NO WARRANTY THAT THE LICENSED TECHNOLOGY OR
CONFIDENTIAL INFORMATION IS UNINTERRUPTED, SUFFICIENT, ACCURATE OR ERROR-FREE
TO ENABLE UTSTARCOM TO DEVELOP UTSTARCOM'S PHS HANDSET.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO EVENT AND UNDER NO LEGAL
THEORY OF LIABILITY, INCLUDING, BUT NOT LIMITED TO, TORT, BREACH OF CONTRACT,
PRODUCT LIABILITY, INDEMNIFICATION, PERSONAL INJURY OR OTHERWISE, SHALL
MITSUBISHI BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL
OR CONSEQUENTIAL DAMAGES OR LOSSES ARISING FROM USE OF THE LICENSED
TECHNOLOGY OR THE CONFIDENTIAL INFORMATION EVEN IF MITSUBISHI HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR
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[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
LOSSES.
(2) Notwithstanding the forgoing, if a technical problem of the Licensed
Technology is found, the Parties will confer in order to find a mutually
agreeable solution of the problem.
(3) UTStarcom shall indemnify and hold Mitsubishi harmless of any claims,
damages or other liability in any way in connection with UTStarcom's use of
the Licensed Technology licensed hereunder.
7. CONFIDENTIALITY
7.1 CONFIDENTIALITY
Each Party agrees to hold any information or data disclosed by the other
Party under this Agreement in strict confidence provided that such
information is clearly marked as 'Confidential' or 'Proprietary', and, if
disclosed orally or visually, summarized in written format within thirty (30)
days of such disclosure (hereinafter referred to as 'Confidential
Information'). Each Party shall take reasonable steps to safeguard the other
Party's Confidential Information, using at a minimum the same degree of care
as is used for its own confidential information, and shall not disclose such
Confidential Information to any third party other than as expressly permitted
by this Agreement. All information disclosed by Mitsubishi to UTStarcom as
'Confidential Information' under the 'UTSTARCOM, Inc. MUTUAL NON-DISCLOSURE
AGREEMENT' [KS99-012A] concluded on March 2, 1999, and 'UTSTARCOM, Inc.
AMENDMENT AGREEMENT TO MUTUAL NON-DISCLOSURE AGREEMENT [KS99-089B]' concluded
on August 23, 1999 between the Parties shall also be treated as Confidential
Information under this Agreement and shall be subject to provisions herein.
(1) The obligations of this Article shall not apply to any information which:
1. is already in the public domain or becomes available to the public
through no breach of this Agreement by the receiving Party;
2. was in the receiving party's possession prior to receipt from the
disclosing Party as proven by its written records;
3. is received by the receiving Party independently from a third party
free to disclose such information;
4. is subsequently independently developed by the receiving Party as
proven by its written records; or
5. is disclosed when such disclosure is compelled pursuant to legal,
judicial, or administrative proceeding, or otherwise required by law,
subject to the receiving Party giving all
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reasonable prior notice to the disclosing Party to allow the
disclosing Party to seek protective or other court orders.
(2) Each Party shall not during and after the term of the Agreement use the
other Party's Confidential Information for any purpose whatsoever other than
that agreed in this Agreement.
7.2 MEDIA RELEASES
Each Party shall not make any press release, advertisement or public
statement concerning the existence of this Agreement or its contents without
the express written consent of the other Party.
8. TERM
The term of this Agreement shall commence on the Effective Date and will
continue until the end of March 31, 2000 or the date upon which this
Agreement is terminated in accordance with Article 9, whichever comes earlier.
9. TERMINATION
9.1 TERMINATION FOR CAUSE
In the event that either Party hereto defaults in the performance of any or
its duties or obligations hereunder, which default shall not be cured within
thirty (30) days after written notice from the non-defaulting Party
specifying the default, then the non-defaulting Party, by giving written
notice thereof to the defaulting Party, terminate this Agreement as of a date
specified in such notice of termination. The defaulting party shall indemnify
the non-defaulting Party for the losses and damages sustained by such
termination.
9.2 TERMINATION FOR INSOLVENCY
Either Party may terminate this Agreement without giving prior notice in the
event of one or more of the followings:
1. a Party enters into voluntary or involuntary bankruptcy or
insolvency, or cease to make payments to its creditors;
2. a Party liquidates its business or makes or causes to be made an
assignment of its assets or business, either in whole or in part,
for the benefit of its creditors;
3. a receiver or trustee is appointed to take over, or administer, or
conduct all or a substantial part of the business or property of a
Party;
4. a substantial change in the ownership or control of one Party
without the prior written
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consent of the other Party; and
5. dissolution or liquidation of a Party's assets.
If one Party is involved in any of the events enumerated in paragraphs 1.
through 5. above, such Party shall notify the other Party immediately, by
cable or facsimile, of the occurrence of such event.
9.3 RIGHTS UPON TERMINATION
If this Agreement is terminated for any reason, all licenses granted to
UTStarcom hereunder shall be terminated, and UTStarcom shall immediately
return Mitsubishi all items delivered by Mitsubishi hereunder and all copies
thereof.
9.4 SURVIVAL
The provisions of Articles 4, 5, 6, 7, 9, 10 and 11 hereof shall survive any
termination of this Agreement.
10. SETTLEMENT OF DISPUTES
10.1 ARBITRATION
Any and all disputes, controversies, or differences which may arise between
the Parties, out of or in relation to or in connection with this Agreement,
or for the breach thereof, and which cannot be settled amicably, shall be
finally settled by arbitration pursuant to the Rules of Conciliation and
Arbitration of the International Chamber of Commerce. The arbitration shall
be held in Tokyo, Japan. All arbitration proceedings shall be conducted in
Japanese language.
10.2 ATTORNEY'S FEES
If either Party employs attorneys to enforce any rights arising out of or
relating to this Article 10, the prevailing Party in such disputes shall be
entitled, in addition to its other rights hereunder, to recover reasonable
fees of attorneys, accountants and other professionals including costs and
fees on appeal.
11. MISCELLANEOUS
11.1 NOTICE
Any required notice or other communication hereunder shall be given in
writing and shall be deemed effective when actually received at the address
of each Party or such address as each Party may substitute by written notice
to the other in manner contemplated herein. In regard to technical issues,
however, electronic transmissions such as e-mail, facsimile and telephone are
also available and acceptable.
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11.2 ASSIGNMENT
This Agreement and any right and obligation hereunder shall not be assigned
or transferred to any third party in whole or in part by either Party without
the prior written consent of the other Party which consent shall not be
unreasonably withheld, provided that either Party may assign this Agreement
or any right or obligation hereunder with prior written notice to the other
Party if the Party transfers them by operation of law, including, but not
limited to, consolidation or merger, levy, execution of legal process,
bankruptcy, insolvency. If this Agreement or any right or obligation
hereunder would otherwise pass through such assignment or transfer by
operation of law from the Party to any third party without prior written
consent of the other Party, then such other Party may, in addition to any
other remedies it might have, forthwith terminate this Agreement by written
notice of such termination to the assignment Party.
11.3 GOVERNING LAW
This Agreement shall be governed in all respects, including issues of
validity, interpretation, performance, proceedings and enforcement, by the
laws of Japan.
11.4 LANGUAGE
The working language to be used for all aspects of activities related to this
Agreement including all forms of documentation and other communication
exchanged between the Parties, shall be a Japanese language.
11.5 SEVERABILITY
In the event that any provisions of this Agreement is held by a court of
competent jurisdiction to be legally ineffective or unenforceable, such
provision shall be reformed only to the extent necessary to make it
enforceable and the validity of the remaining provisions shall not be
affected.
11.6 WAIVER
The waiver by either Party of a breach of or a default under any provision of
this Agreement by the other Party shall not be construed as a waiver of any
subsequent breach of the same or any other provision of this Agreement, nor
shall any delay or omission on the part of either Party to exercise or avail
itself of any right or remedy that it has or may have hereunder, operate as a
waiver of any right or remedy by such Party.
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11.7 INTEGRATION
This Agreement contains the full understanding of the Parties with respect to
the subject matter hereof and supersedes all prior understandings and
writings relating thereto. No waiver, consent, modification, amendment or
change of the terms of this Agreement and its Exhibit(s) shall be binding
unless in writing and signed by Mitsubishi and UTStarcom.
11.8 HEADING
The article headings throughout this Agreement are for reference purpose only
and the words contained therein shall not construed as substantial part of
this Agreement and shall in no way be held to explain, modify, amplify, or
aid in the interpretation, construction or meaning of the provisions of this
Agreement.
11.9 COMPLIANCE OF LAWS
(1) The Parties agree that it shall perform its obligations under this
Agreement in accordance with all applicable laws, rules and regulations now
or hereinafter in effect.
(2) UTStarcom shall at its own risk and expense obtain all export licenses
necessary for fulfillment of its obligations under this Agreement.
11.10 FORCE MAJEURE
Each Party shall not be responsible to the other Party for any delay or
failure to deliver the items described hereunder arising from causes beyond
its reasonable control, such as force majeure, strikes, labor disputes,
lockouts, civil commotion, war (declared or undeclared), riot, severe
weather, lightning, heavy snow, floods, Acts of God, governmental rules,
laws, sanctions, requisition, mobilization, embargoes, fires, explosions,
restriction in the use of power or any other cause whatsoever beyond its
reasonable control whether or not similar to any of the contingencies
specifically enumerated. In no event shall each Party be liable to the other
Party for direct, indirect, consequential or special damages arising from its
delay or failure in delivery as a result of any such case.
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed by their respective duly authorized representatives as of the
Effective Date. All copies of this Agreement, signed by both Parties, shall be
deemed originals.
MITSUBISHI UTSTARCOM
By: /s/Kunio Nakatsuka By: /s/Hong Liang Lu
--------------------------------- ---------------------------------
Name: Kunio Nakatsuka Name: Hong Liang Lu
------------------------------- -------------------------------
Title: Manager Title: PRESIDENT
------------------------------ ------------------------------
Date: Nov 2, 1999 Date: Nov 2, 1999
------------------------------- -----------------------------
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EXHIBIT A TECHNICAL DOCUMENT
1. TECHNICAL DOCUMENT LIST FOR MITSUBISHI PHS HANDSET
----------------------------------------------------------------------------------------------
Technical Document Media Delivery
time
----------------------------------------------------------------------------------------------
1. Manufacturing Engineering Related Items: - -
----------------------------------------------------------------------------------------------
(1) Equipment list for manufacturing. Paper Undecided
(2) Equipment placement and shopfloor layout. Paper Undecided
(3) Working Instructions for All Processes of PCB ASSY. Paper Undecided
(4) Working Instructions for All Processes of BODY. Paper Undecided
(5) Critical Process Control Points of PCB ASSY. Paper Undecided
(6) Critical Process Control Points of BODY. Paper Undecided
(7) General Critical Process Control Points. Paper Undecided
(8) Schematic & Principles of PHS handset. Paper Undecided
(9) Trouble Shooting Guide for PHS handset. Paper Undecided
(10) Gerber Files of PCBs. Diskette Undecided
or CD
----------------------------------------------------------------------------------------------
2. Quality Assurance Related: - -
----------------------------------------------------------------------------------------------
(1) Quality Data in the latest 3 months. Paper Undecided
(2) Incoming Inspection Procedures and Criteria. Paper Undecided
(3) Final QA Acceptance Procedures and Criteria. Paper Undecided
(4) Field Failure Data in the latest one year. Paper Undecided
----------------------------------------------------------------------------------------------
3. R&D Engineering Related: - -
----------------------------------------------------------------------------------------------
(1) Schematic/Drawings/Principle. Paper Undecided
(2) Equipment List for R&D Engineering. Paper Done
(3) Associated Development Tools List. Paper Undecided
(4) Product Description/User Manual. Paper Undecided
----------------------------------------------------------------------------------------------
4. Training and Technical support Items: - -
----------------------------------------------------------------------------------------------
(1) Training and Technical support plan for Paper Undecided
UTStacom's manufacturing.
(2) Training on PHS handset operation principle Paper Undecided
for all UTStarcom's engineers.
----------------------------------------------------------------------------------------------
5. CAD S/W TOOL: - -
----------------------------------------------------------------------------------------------
(1) Mold design CAD use 'MEL CAD' s/w tool. Diskette Undecided
or CD
(2) PCB pattern CAD use 'CR-3000' of ZUKEN. Diskette Undecided
or CD
----------------------------------------------------------------------------------------------
6. Materials Sourcing/Purchasing Related: - -
----------------------------------------------------------------------------------------------
(1) Major Suppliers List and Contact Information. Diskette Done
or CD
(2) BOM price. Paper Done
----------------------------------------------------------------------------------------------
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2. PROGRAM LIST FOR MITSUBISHI PHS HANDSET
----------------------------------------------------------------------------------------------
Program List Media Delivery
time
----------------------------------------------------------------------------------------------
1. Manufacturing Engineering Related Items: - -
----------------------------------------------------------------------------------------------
(1) Source code of all test programs of manufacturing. Diskette Undecided
or CD
----------------------------------------------------------------------------------------------
2. R&D Engineering Related: - -
----------------------------------------------------------------------------------------------
(1) S/W, Firmware Source Code Diskette Done
or CD
----------------------------------------------------------------------------------------------
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EXHIBIT B TECHNICAL ASSISTANCE
(1) TECHNICAL TRAINING FOR DEVELOPING SOFTWARE
Mitsubishi will provide the technical training listed below to support UTStarcom
to develop software for UTStarcom's PHS handset at UTStarcom's expense.
- Basically Mitsubishi will not develop new software of PHS handset anymore.
- UTStarcom shall develop the software if some change is required for
UTStarcom's market at its expense.
-----------------------------------------------------------------------------------------------------------------
Item Duration UTStarcom's Mitsubishi's Location Hourly Rate
Trainee Trainer M:Office of
designated Mitsubishi's
by personnel
Mitsubishi
U:Office
prepared by
UTStarcom
-----------------------------------------------------------------------------------------------------------------
1. Lecture on the system of [*] [*] [*] M
the PHS handset
------------------------------------------------------------------------------------------------
2. Lecture on the H/W of [*] [*] [*] M
the Licensed Technology
------------------------------------------------------------------------------------------------
3. Lecture on the S/W of [*] [*] [*] M [*]
the Licensed Technology
------------------------------------------------------------------------------------------------
4. Preparation for Item 5. [*] [*] U
------------------------------------------------------------------------------------------------
5. Demonstration of the [*] [*] [*] U
S/W of the Licensed
Technology
------------------------------------------------------------------------------------------------
6. Q&A about contents of [*] [*] [*] M or U
the Lecture and
Demonstration
-----------------------------------------------------------------------------------------------------------------
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[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
(2) SUPPORT FOR TEST AND QUALITY ASSURANCE
Mitsubishi will support to train UTStarcom's engineers by Mitsubishi's
QA concept using the available data specified in ExhibitA necessary to
develop UTStarcom's PHS handset at UTStarcom's expense.
-----------------------------------------------------------------------------------------------------------------
Item Duration UTStarcom's Mitsubishi's Location Hourly Rate
Trainee Trainer M:Office of
designated Mitsubishi's
by personnel
Mitsubishi
U:Office
Prepared by
UTStarcom
-----------------------------------------------------------------------------------------------------------------
1. Lecture on a method of test [*] [*] [*] M
and quality assurance
----------------------------------------------------------------------------------------------- [*]
2. Demonstration on a method [*] [*] [*] M
of test and quality assurance
-----------------------------------------------------------------------------------------------------------------
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[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
(3) TOOLING FOR TL-PH2
Mitsubishi will offer the Toolings for TL-PH2 listed below to UTStarcom,
provided that UTStarcom shall follow the conditions for using each Tooling as
determined separately by mutual discussion between the Parties.
A. TRANSFERABLE ITEMS OF TOOLING FOR TL-PH2
--------------------------------------------------------------------------------------
NO. Mold No. Parts Name Amount [*] Model
--------------------------------------------------------------------------------------
1 83016816 310Q049 CASE-F-2 1 [*] TL-PH2
--------------------------------------------------------------------------------------
1.1 83016817 311A447 FLIP-2 1 [*] TL-PH2
--------------------------------------------------------------------------------------
1.2 83016819 440C499 CLEAR-LAMP-2 1 [*] TL-PH2
--------------------------------------------------------------------------------------
1.3 83016822 440D284 PANEL-LCD-2 1 [*] TL-PH2
--------------------------------------------------------------------------------------
1.4 83016986 370C157 PLATE-F-2 1 [*] TL-PH2
--------------------------------------------------------------------------------------
2 83016815 310Q048 CASE-R-2 1 [*] TL-PH2
--------------------------------------------------------------------------------------
3 83016820 440C500 PANEL-FLIP-2 1 [*] TL-PH2
--------------------------------------------------------------------------------------
3.1 83016821 440C501 PANEL-FLIP-CL-2 1 [*] TL-PH2
--------------------------------------------------------------------------------------
5 83016952 501B003 SWITCH-RUBBER-L-2 1 [*] TL-PH2
--------------------------------------------------------------------------------------
6 83017023 533B039 PRINT-BOARD*PH2 1 [*] TL-PH2
--------------------------------------------------------------------------------------
6.1 83016863 686C024 TERMINAL-CH 1 [*] TL-PH2
--------------------------------------------------------------------------------------
6.3 83016948 261C361 HOLDER-MIC-2 1 [*] TL-PH2
--------------------------------------------------------------------------------------
13 83016818 320A183 COVER-BAT-2 1 [*] TL-PH2
--------------------------------------------------------------------------------------
15 83016950 369C119 CAP-CONNECTOR-2 1 [*] TL-PH2
--------------------------------------------------------------------------------------
16 83016899 924C032 CHARGE*ASSY-2 1 [*] TL-PH2
--------------------------------------------------------------------------------------
20 83016924 260B546 HOLDER*SOUND-2 1 [*] TL-PH2
--------------------------------------------------------------------------------------
99 83016949 311B086 CASE-F-2-SUB 1 [*] TL-PH2
--------------------------------------------------------------------------------------
Note)
*1. UTStarcom does not have the right to request Mitsubishi to sell each
Tooling for TL-PH2 itemized above after [*] from the Effective Date of this
Agreement.
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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B. NON-TRANSFERABLE ITEMS OF TOOLING FOR TL-PH2
--------------------------------------------------------------------------------------
4 83016953 501A011 SWITCH-RUBBER-F-2 1 [*] TL-PH2
--------------------------------------------------------------------------------------
6.2 83017084 260A145 HOLDER-REC/LCD-2(BAKKL-RAITO) 1 [*] TL-PH2
--------------------------------------------------------------------------------------
7 83016987 535D003 KEY-SHEET-L-2 1 [*] TL-PH2
--------------------------------------------------------------------------------------
9 83016898 719C157 ANTENNA-2 1 [*] TL-PH2
--------------------------------------------------------------------------------------
9.1 83016988 719C158 ANTENNA-PH2 1 [*] TL-PH2
--------------------------------------------------------------------------------------
10.1 83016989 719C160 TERMINAL-ANT-2 1 [*] TL-PH2
--------------------------------------------------------------------------------------
10.2 83016990 719C162 HOLDER-ANT-2 1 [*] TL-PH2
--------------------------------------------------------------------------------------
Note)
*1. UTStarcom does not have the right to request Mitsubishi to use each
Tooling for TL-PH2 itemized after [*] from the Effective Date of
this Agreement.
*2. UTStarcom agrees that each Tooling for TL-PH2 itemized above is used only
at a place designated by Mitsubishi and is prohibited from transferring from
the said place to somewhere.
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
STRICTLY CONFIDENTIAL UTSVER8.DOC
18/19
Note)
*1. UTStarcom shall prepare an appropriate office near Mitsubishi's offices
at its expense, where Mitsubishi will be able to support to train UTStarcom's
engineers sufficiently.
*2. The hourly rate listed in this Exhibit B may be revised during the term
of this Agreement, based on a standard rate applicable to Mitsubishi's
dispatched personnel for the Technical Assistance.
*3. All Technical Assistance shall be performed in Japan.
*4. UTStarcom shall prepare at its expense all equipment other than those
furnished by Mitsubishi hereunder such as work-station, personal computer and
compiler and so on necessary for Mitsubishi to be able to provide UTStarcom
with Technical Assistance. Mitsubishi will support to facilitate such
preparation at UTStarcom's expense.
*5. UTStarcom shall arrange a sufficient number of qualified interpreters for
the Technical Assistance at UTStarcom's expense, if necessary.
*6. UTStarcom's engineers shall be observe and comply with all applicable
laws, regulations, Mitsubishi's internal rules, regulations and orders taken
from Mitsubishi.
*7. UTStarcom shall dispatch its engineers to Mitsubishi whose ability is at
least beyond the level designated by Mitsubishi to become reasonably
acquainted with the Licensed Technology.
STRICTLY CONFIDENTIAL UTSVER8.DOC
19/19
TYPE: EX-10.15
SEQUENCE: 3
DESCRIPTION: EXHIBIT 10.15
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.
MEMORANDUM OF UNDERSTANDING
JOINT PRODUCT DEVELOPMENT AND MARKETING
This Memorandum of Understanding ('this MOU') is entered into this 2nd
day of September 1999 ('Effective Date'), by and between UTStarcom, Inc., a
corporation having its principal place of business at 1275 Harbor Bay Parkway,
Suit 100 Alameda, California 94502, U.S.A. ('Developer'), and Matsushita
Communication Industrial Co., Ltd., a corporation having its principal place of
business at 4-3-1, Tsunashima-higashi, Kohoku-ku, Yokohama, 223-8639, Japan,
acting through its Communication Systems Division ('Co-developer').
WITNESSETH:
WHEREAS, Co-developer desires to have Developer provide engineering
expertise in connection with the joint development of a product which combines
the functionality of a PBX and a LAN, referred to as an Internet Protocol
Telephony Switch ('IPTS'), which is developed based on the High Level
Requirement for IPTS ('HLR') provided by Co-developer to Developer, and which
Co-developer intends to consider for commercial marketing; and
WHEREAS, Co-developer is also considering a licensing arrangement under
certain intellectual property rights of Developer in connection with the IPTS;
and
WHEREAS, Developer desires to provide its engineering expertise, and to
grant a license under its intellectual property rights to Co-developer; and
WHEREAS, Co-developer desires to provide its proprietary information
with respect to specifications and market information for its own PBX products;
and
WHEREAS, the parties have entered into a mutual Confidential Disclosure
Agreement dated July 5, 1999 ('Confidential Agreement') to exchange the
confidential information owned by each party;
NOW, THEREFORE, Co-developer and Developer hereby express their
intention to agree as follows:
1. SERVICES AND PRODUCT DEVELOPMENT; INTELLECTUAL PROPERTY RIGHTS;
CONFIDENTIALITY
a. ENGINEERING SERVICES. In consideration of the fees agreed to in
Section 2[a] of this MOU, Developer will use its best efforts to provide to
Co-developer its engineering services related to development of the IPTS
described in Exhibit A of this MOU, which is incorporated into this MOU by
reference. Developer's engineering services shall be provided to Co-developer
pursuant to Exhibit B (Schedule of Deliverables), Exhibit C (Preliminary Release
Schedule) and Exhibit D (MCI Business Regulations: Regulations on New Product
Development, Rec.#RT-0402 Version 5), which are also incorporated into this MOU
by reference. Developer's representative[s] shall confer with Co-developer as
requested to discuss and report on the progress of the development work
described in Exhibits B, C and D.
b. INTELLECTUAL PROPERTY RIGHTS. Co-developer agrees that Developer
retains full and exclusive rights and ownership in any and all letters patent,
inventions, software, firmware, algorithms, know-how, trademarks, copyrights and
trade secrets described in Exhibit E of this MOU, any Confidential Information
(as defined in the Confidential Agreement), and any other proprietary rights
which Developer currently possesses (and which are described in Exhibit E
hereto), develops independently in the course of providing engineering services
pursuant to this MOU, or is otherwise entitled to by law. In the event any
improvement, enhancement, addition or
other modification to the IPTS is invented, created or perceived jointly by the
parties during the term of this MOU ('Joint Property'), such Joint Property
shall be jointly owned by the parties hereto. Any application for protection of
Joint Property, and any associated costs for such protection, shall be mutually
agreed upon by the parties in the form of a separate written agreement in
advance of attempt to protect the Joint Property. The parties hereto may use
Joint Property for any purpose without the consent of the other party and
without any compensation or accounting to the other party.
c. CONFIDENTIALITY. The Confidential Agreement is incorporated herein
as Exhibit F, and shall continue in full force and effect with respect to the
subject matter of this MOU during the term of this MOU, notwithstanding any
provision of the Confidential Agreement to the contrary.
2. FEES
a. NON-RECURRING ENGINEERING FEES - AMOUNTS AND DATES. Co-developer
will pay Developer fees upon the events and the deliveries defined in Exhibit B
of this MOU, and in the amounts set forth below:
EVENTS AND DELIVERIES PAYMENT
--------------------- -------
Co-developer and Developer execute this MOU
Developer delivers Preliminary Product Proposal defined in
Exhibit B to Co-developer - by September 2,1999 [*]
Developer delivers Design Specification defined in Exhibit B
to Co-developer - by October 15, 1999 [*]
Developer delivers Release 0.5 System defined in Exhibit B
to Co-developer - by December 17, 1999 [*]
3. FUTURE EXECUTION OF FORMAL CONTRACT
If the parties mutually agree that the development of the IPTS is both
technically feasible and commercially practicable, the parties may execute a
formal contract for the commercial development of the IPTS, which would be
executed by the parties contingent upon the completion of the functional
specification by no later than January 31,1999. The formal contract provisions
would address (but not be limited to) the following items: product deliverables;
product development schedule; payment terms; licensing of intellectual property
rights; exclusive or non-exclusive marketing and distribution rights. The
parties understand and agree that (a) Section 3 hereof is intended solely as an
expression of the parties' potential intent to enter into a future agreement
under the conditions and as to the subject matter set forth in this Section 3;
and (b) such future agreement, if any, shall be reduced to a written contract
between the parties by no later than January 31, 2000. Notwithstanding the
foregoing, neither party is obligated by virtue of this Section 3 to enter into
or negotiate towards any agreement whatsoever.
4. TERM, TERMINATION AND SURVIVAL
a. TERM. This MOU shall be effective as of the Effective Date, and
shall be remain in force until January 31, 2000.
b. TERMINATION. Either party may terminate this MOU at any time by
giving the other party 60 days prior written notice.
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
c. SURVIVAL. The Section 1 and this 4[c] will survive any expiration
or termination of this MOU
5. EXPORT ADMINISTRATION
Each party will comply with any applicable export laws, regulations or
other restrains of any countries, including but not limited to the U.S.A. and
Japan.
6. GOVERNING LAW
The validity, construction and performance of this MOU shall be
governed by substantive laws of State of New York.
7. INTEGRATION
This MOU sets forth the entire agreement and understanding between the
parties and supersedes all prior agreements, proposals, communications and
discussions between the parties, whether written or oral, relating to the
subject matter hereof.
8. DISPUTE RESOLUTION
The parties will attempt to settle amicably any dispute that arises in
connection with this MOU. If such dispute cannot so settled within 60 days of
its occurrence, either party may avail itself of any applicable remedies.
IN WITNESS WHEREOF, the parties have, by their duly authorized
representatives to the parties, executed this MOU on the date first above
written.
AGREED:
DEVELOPER: CO-DEVELOPER:
/s/ Hong Liang Lu /s/ Y. Katsura
------------------------ -------------------------
Signature Signature
HONG LIANG YASUO KATSURA
------------------------ -------------------------
Name Name
PRESIDENT DIRECTOR
------------------------ -------------------------
Title Title
Exhibit A: IPTS Preliminary Product Proposal
Exhibit B: Schedule of Deliverables
Exhibit C: Preliminary Release Schedule
Exhibit D: MCI Business Regulations on New Product
Exhibit E: List of Developer's IPR related to the IPTS
Exhibit F: Confidential Disclosure Agreement
Exhibits A-E
[*]
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
EXHIBIT F
Confidential Agreement
(MUTUAL CONFIDENTIAL DISCLOSURE AGREEMENT)
MUTUAL CONFIDENTIAL DISCLOSURE AGREEMENT
This Agreement made and entered into by and between
UTStarcom, Inc., a corporation having its principal place of business at 1275
Harbor Bay Parkway, Suite 100 Alameda, California 94502, U.S.A., (hereinafter
called 'UTS'), and
Panasonic Telecommunication Systems Company, Division of Matsushita Electric
Corporation of America, a Delaware, USA corporation, having a place of business
at Two Panasonic Way, Secaucus, New Jersey 07094, U.S.A, (hereinafter called
'PTSC'), and
Panasonic Information and Networking Technologies Laboratory, Laboratory of
Panasonic Technologies, Inc., a Delaware, USA corporation, having a place of
business at Two Research Way, Princeton, New Jersey 08540, U.S.A., (hereinafter
called 'PINTL'), and
Matsushita Communication Industrial Corporation of U.S.A., a US corporation
having its place of business at 776 Highway 74 South Peachtree City, Georgia
30269, U.S.A, acting through its Systems Department (hereinafter called
'MCUSA'), and
Matsushita Communication Industrial Co., Ltd., a Japanese corporation, having
its place of business at 4-3-1, Tsunashima-higashi, Kohoku-ku, Yokohama,
223-8639, Japan, acting through its Communication Systems Division (hereinafter
called 'MCI').
WITNESSETH
1. Any term listed in Attachment 1, as used herein, shall have the meaning set
forth therein. In addition, PTSC, PINTL, MCUSA and MCI shall be referred to
collectively herein as the 'Matsushita Parties'.
2. This Agreement shall be applicable to Information disclosed by any Of the
Matsushita parties to UTS or by UTS to any of the Matsushita parties party
during the Disclosure Period.
3. In order to be treated in accordance with the terms and conditions of this
Agreement,
(a) the Information shall be disclosed in tangible form conspicuously
labeled by the disclosing party as 'Confidential' or 'Proprietary', or
(b) if the Information is disclosed orally, through demonstration or in
other intangible form, the disclosing party must specifically designate
it as 'Confidential' or 'Proprietary' at the time of such disclosure
and confirm it in writing conspicuously labeled as 'Confidential' or
'Proprietary' to be received by the receiving party within thirty
(30) days following such disclosure.
Any Information received or transmitted electronically shall be deemed
disclosed in tangible form.
4. During the Confidentiality Period, each receiving party agrees to extend
the following treatment ('Confidential Treatment') to the Information of
each disclosing party:
(a) to use the same reasonable care in keeping confidential the Information
of the disclosing party as it uses for its own confidential information
of a similar nature (such reasonable care herein referred to as
'Protective Efforts'), and
(b) to use the Information only for the Purpose, except as the disclosing
party may otherwise agree in writing.
A receiving party shall not be liable for inadvertent disclosure of the
Information of a disclosing party, provided it has made Protective Efforts
and, upon discovery of any such inadvertent disclosure of the Information
of the disclosing party, the receiving party promptly advises the
disclosing party of the inadvertent disclosure and endeavors to prevent any
further inadvertent disclosure. The receiving party shall not be liable for
unauthorized disclosure or use by persons who are or have been its
employees unless the receiving party fails to make Protective Efforts.
5. Confidential Treatment shall not be extended to Information of a
disclosing party that:
(a) was in the public domain at the time it was disclosed or becomes
part of the public domain after disclosure, including, without
limitation, disclosure in a U.S. or foreign patent or printed
publication, or inherent disclosure through the unrestricted use,
lease, sale or other disposal of products embodying the same; or
(b) was known to the receiving party at the time of its disclosure or
becomes known to it
2
from a party other than disclosing party who has the apparent right to
transfer or disclose such Information; or
(c) is independently developed by the receiving party without reliance on
the Information of the disclosing party; or
(d) is disclosed by the disclosing party to a third party without
restrictions on such third party's rights to disclose or use the same;
or
(e) is approved for release upon the disclosing party's prior written
consent; or
(f) is disclosed by the receiving party pursuant to judicial order,
requirement of a governmental agency or by operation of law, provided
that the receiving party informs the disclosing party within thirty
(30) days after receiving notice of its obligation to make such
disclosure, and takes reasonable steps to limit the scope of such
disclosure; or
(g) is disclosed by the disclosing party to the receiving party after
written notification by the receiving party that it will not accept any
further Information in confidence.
6. This Agreement shall not be construed to bind or impose obligations upon
any divisions and/or business units of MCI, Matsushita Electric Corporation
of America, MCUSA or Panasonic Technologies, Inc., or their parent
companies, subsidiaries and/or affiliated companies other than the
above-mentioned divisions, except for any of such divisions and/or business
units as receive disclosure of the Information.
7. Each disclosing party understands that each receiving party may currently
or in the future be developing internally, or receiving from other parties,
information that may be similar to Information of the disclosing party.
Accordingly, neither this Agreement nor receipt of Information hereunder
shall limit a receiving party's development and marketing of concepts,
techniques, products or systems similar to or competing with the
Information of the disclosing party, nor will this Agreement or receipt of
Information hereunder prevent a receiving party from undertaking similar
efforts or discussion with any third parties. Nothing in this paragraph
shall be construed to diminish in any way the obligations of the parties
set forth in paragraph 4 hereof.
8. It is understood that the receipt of Information under this Agreement shall
not create any obligation in any way limiting or restricting the
dispatching, assignment and/or
3
reassignment of employees of the receiving party.
9. Nothing contained in this Agreement shall be construed as
(a) obliging or entitling any party to furnish to or receive from any
other party any goods or services that may be referenced herein;
or
(b) an agreement or commitment by any party to enter into further
business relationships including, but not limited to, development,
purchasing or licensing; or
(c) granting or conferring expressly, implicitly, or otherwise, any
rights by license or otherwise for any invention, discovery or
improvement made, conceived, or acquired prior to or after the
date of this Agreement; or
(d) granting any license, express or implied, in the Information to
any receiving party other than to use the Information in the
manner and to the extent authorized by this Agreement.
10. Each party will act as an independent contractor and not as an agent or
employee of any other party, and no party will have the authority to
bind any other party. This Agreement will not create a joint venture,
partnership or other business relationship or entity of any kind, or an
obligation or commitment to form such relationship or entity.
11. Export Control
(a) The respective disclosing party shall be responsible for obtaining
any export license required under applicable laws or regulations
with respect to the export to MCI of any Information of such
disclosing party. MCI will provide such disclosing party with
reasonably necessary cooperation for obtaining such export
license.
(b) In the event that a Japanese governmental authorization is
required for the disclosure of MCI's Information under this
Agreement, MCI will not disclose such Information until MCI
obtains such authorization.
12. This Agreement shall be governed by and construed in accordance with
the laws of Japan irrespective of its conflict-of-laws rules.
13. This Agreement represents the entire understanding among the parties
with respect to the Information, and no waiver, alteration, or
modification of any of the provisions hereof
4
shall be binding on the parties unless made in writing and signed by the
duly authorized representatives of the parties. This Agreement and its
rights and obligations may not be assigned or transferred by any party
without the prior written consent of the other parties. This Agreement
shall be binding on the parties, their successors and assigns.
IN WITNESS WHEREOF, the parties have, by their duly authorized representatives,
executed this Agreement as of the date shown below.
MCI: UTS:
Matsushita Communication Industrial UTStarcom, Inc.
Co., Ltd., acting through its
Communication System Division
BY: BY:
-------------------------------- -------------------------
NAME: NAME:
------------------------------ -----------------------
TITLE: TITLE:
----------------------------- ----------------------
DATE: DATE:
------------------------------ -----------------------
PTSC: PINTL:
Panasonic Telecommunication Systems Panasonic Information and
Company, Division of Matsushita Electric Networking Technologies
Corporation of America Laboratory, Laboratory of
Panasonic Technologies, Inc.
BY: BY:
-------------------------------- -------------------------
NAME: NAME:
------------------------------ -----------------------
TITLE: TITLE:
----------------------------- ----------------------
DATE: DATE:
------------------------------ -----------------------
MCUSA:
5
Matsushita Communication Industrial
Corporation of America
acting through its Systems Department
BY: BY:
-------------------------------- -------------------------
NAME: NAME:
------------------------------ -----------------------
TITLE: TITLE:
----------------------------- ----------------------
DATE: DATE:
------------------------------ -----------------------
6
Attachment 1
Definitions
1. 'Information', to the extent disclosed by UTS, means information regarding
UTS's capability to participate in the development of a next-generation
PBX system, disclosed in accordance with Article 3. 'Information', to the
extent disclosed by any of the Matsushita Parties, means information
regarding the marketing and functional requirements for a PBX system and
any business plan, forecasts, customer information or similar information
relating to PBX systems.
2. 'Purpose' means the evaluation of UTS's capability to participate in the
development of a next-generation PBX system.
3. 'Disclosure Period' means July 5, 1999 through October 4, 1999.
4. 'Confidentiality Period' means a period of three years following the end
of the Disclosure Period, during which the parties treat the Information
in accordance with the terms and conditions of this Agreement.
7
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