{"id":40278,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/professional-services-agreement-utstarcom-inc-and-n-lohr.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"professional-services-agreement-utstarcom-inc-and-n-lohr","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/professional-services-agreement-utstarcom-inc-and-n-lohr.html","title":{"rendered":"Professional Services Agreement – UTStarcom Inc. and N. Lohr Bangle Jr."},"content":{"rendered":"
UTSTARCOM
\nPROFESSIONAL SERVICES AGREEMENT<\/b><\/p>\n\n
This Agreement is made this 10th<\/sup> day of September 2002,\nbetween UTStarcom, a Delaware corporation having an address and place of\nbusiness at 1275 Harbor Bay Parkway, Alameda, CA 94502, (hereinafter referred\nto as \u0093UTStarcom\u0094), and N. Lohr Bangle, Jr. (hereinafter referred to as\n\u0093Consultant\u0094), having a Social Security Number of [***].<\/p>\n\n
WHEREAS, Consultant is engaged in the general business of providing\n[***] services to a variety of individuals including companies in the wireless\nand telecommunications products and services companies;<\/p>\n\n
WHEREAS, UTSI wishes to retain Consultant to provide services related\nto its products related to [***].<\/p>\n\n
NOW, THEREFORE, in consideration of the foregoing and the mutual\ncovenants contained herein, it is agreed as follows:<\/p>\n\n
1.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Statement\nof Work<\/u>.\u00a0 During the term of this\nAgreement, Consultant will perform services as requested from time to time by\nUTStarcom, at such place or places and at such times as shall be mutually\nagreeable to the parties hereto.\u00a0\nConsultant shall assist UTStarcom with [***] supplied by UTSI.\u00a0 Consultant will coordinate [***] efforts\nwith companies and individuals and shall provide Purchase Orders for\nUTStarcom\u0092s products to prospective customers pursuant to the Reseller\nAgreement dated September 10, 2002 between [***] and UTStarcom, Inc. (the\n\u0093Reseller Agreement\u0094).<\/p>\n\n
2.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Payment<\/u>.\u00a0 UTStarcom shall pay Consultant according to\nthe following schedule:<\/p>\n\n
(a)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Fees<\/u>.\u00a0 In consideration of the services to be\nperformed by Consultant, UTStarcom agrees to pay Consultant a market\ndevelopment fee of [***]<\/p>\n\n
(b)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Payments<\/u>.\u00a0 The market development fee for all submitted\nPurchase Orders received by UTStarcom from Consultant or attributable end user\ncustomers shall be paid to Consultant within [***] of receipt by the Consultant\nof an invoice.\u00a0 Consultant shall send\ninvoices to: UTStarcom, Inc., ATTN: Accounts Payable, 1275 Harbor Bay Parkway,\nAlameda, CA 94502.<\/p>\n\n
3.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Other\nObligations<\/u>.\u00a0 Consultant agrees to\nallocate a minimum of [***] for UTSI use.\u00a0\nThere will not be any other expenses or charges for this position unless\nmutually agreed upon in writing by both parties.<\/p>\n\n
 <\/p>\n\n\n
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\n\n<\/div>\n\n\n\n
\n\n\n
 <\/p>\n\n
4.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Term\nand Termination<\/u>.\u00a0 Consultant\u0092s\nauthority shall begin as of the date of this Agreement and shall continue for\nan initial period of [***] (the \u0093Initial Period\u0094).\u00a0 At the end of the Initial Period, this Agreement shall\nautomatically renew for an additional [***] unless either party gives [***]\nwritten notice to the other of intent to terminate Consultant\u0092s authority.<\/p>\n\n
5.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Confidentiality<\/u>.\u00a0 Both parties recognize and agree that the\nterms of this Agreement and any information regarding each prospective\nagreement shall be held confidential by its respective parties, agents,\nemployees and officers.<\/p>\n\n
(a)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 During\nthe term of this Agreement, Consultant will have access to and become\nacquainted with various trade secrets and other proprietary and confidential\ninformation which are owned by UTStarcom and which are used in the operation of\nUTStarcom\u0092s business (collectively \u0093Confidential Information\u0094).\u00a0 Confidential Information consists of for\nexample, and not intending to be inclusive, (i) software (source and\nobject code), algorithms, computer processing systems, techniques,\nmethodologies, formulae, processes, compilations of information, drawings,\nproposals, job notes, reports, records, and specifications, and\n(ii) information concerning any matters relating to the business of\nUTStarcom, any of its customers, customer contacts, licenses, the prices it\nobtains or has obtained for the licensing of its software products and\nservices, or any other information concerning the business of UTStarcom and\nUTStarcom\u0092s good will.\u00a0 All Confidential\nInformation disclosed to Consultant by UTStarcom, or acquired from a customer\nor prospective customer of UTStarcom, are and shall remain the sole and\nexclusive property and proprietary information of UTStarcom or such customers,\nand are disclosed in confidence by UTStarcom or permitted to be acquired from\nsuch customers in reliance on Consultant\u0092s agreement to maintain them in\nconfidence and not to use or disclose them to any other person except in\nfurtherance of UTStarcom\u0092s business.\u00a0\nConsultant specifically agrees to not disclose or use in any manner,\ndirectly or indirectly, any such Confidential Information either during the\nterm of this Agreement or at any time thereafter, except as required in the\ncourse of providing services pursuant to this Agreement.<\/p>\n\n
(b)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Nothing\nherein shall be construed as an implied patent license under any UTStarcom\npatent.<\/p>\n\n
(c)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Consultant\nagrees to obtain an agreement similar to this Section 5 from any agent,\nemployee, or associate performing work under this Agreement, and to be directly\nresponsible for the acts of such agent, employee, or associate.<\/p>\n\n
(d)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Consultant\nrepresents and warrants that he\/she has reviewed and understands UTStarcom\u0092s\nPolicy Requiring Compliance with the Economic Espionage Act of 1996 (\u0093EEA\nPolicy\u0094) (a copy of the policy is attached hereto as Exhibit A, and\nincorporated by reference).\u00a0 Consultant\nfurthers agrees that by the duly authorized signature below, Consultant agrees\nto abide in all respects with the attached EEA Policy.\u00a0 [***]<\/p>\n\n
6.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Subcontracting<\/u>.\u00a0 Consultant will not subcontract or assign\nany of the work rights hereunder without prior written approval by UTStarcom.<\/p>\n\n
7.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Relationship\nof Consultant<\/u>.\u00a0 Consultant will\nserve as an independent contractor, and this Agreement will not be deemed to\ncreate a partnership, joint enterprise, or employment<\/p>\n\n
 <\/p>\n\n
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 <\/p>\n\n
relationship\nbetween the parties.\u00a0 Consultant shall\nmake appropriate filings with taxing authorities as a self-employed entity and\nshall be liable for all required payments to the local, State, Federal, and\nother taxing authorities (including income tax and social security and SDI\npayments.)\u00a0 [***]<\/p>\n\n
8.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Eligibility\nfor Employment<\/u>.\u00a0 Consultant warrants\nthat he\/she, and\/or any subcontractor or assignee under this Agreement, is\neligible for employment in the United States, as required by the Immigration\nReform and Control Act (IRCA).\u00a0 [***]<\/p>\n\n
9.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Consultant\u0092s\nWarranties<\/u>.\u00a0 Consultant warrants that\nhe\/she, and\/or any subcontractor or assignee under this Agreement, is\nadequately insured for injuries to him\/herself that may occur within the course\nand scope of Consultant\u0092s provision of services pursuant to this Agreement.\u00a0 [***]<\/p>\n\n
10.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Foreign\nCorrupt Practices Act<\/u>.\u00a0 Consultant\nrepresents and warrants that he\/she has reviewed and understands UTStarcom\u0092s\nPolicy Requiring Compliance with the Foreign Corrupt Practices Act (\u0093FCPA\nPolicy\u0094) (a copy of the policy is attached hereto as Exhibit B, and\nincorporated by reference).\u00a0 Consultant\nfurthers agrees that by the duly authorized signature below, Consultant agrees\nto abide in all respects with the attached FCPA Policy.\u00a0 [***]<\/p>\n\n
11.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 [***]<\/p>\n\n
12.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Interpretation\nof Contract<\/u>.\u00a0 This Agreement may not\nbe changed except in writing signed by Consultant and UTStarcom.\u00a0 This writing contains the entire agreement\nbetween the parties, and supercedes any other prior agreements, whether in\nwritten or oral form.\u00a0 In the event that\nany of the provisions of this Agreement shall be held to be invalid or\nunenforceable in whole or in part, those provisions to the extent enforceable\nand all other provisions shall nevertheless continue to be valid and\nenforceable as though the invalid or unenforceable parts had not been included\nin this Agreement.\u00a0 The validity,\nperformance, construction, and effect of this Agreement shall be governed by\nthe laws of the State of California, with the exception of that State\u0092s choice\nof law rules.\u00a0 Any dispute hereunder\nwill be resolved through binding arbitration using a mutually agreed\narbitrator.<\/p>\n\n
 <\/p>\n\n
-3-<\/p>\n\n\n
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\n\n\n
 <\/p>\n\n
IN WITNESS WHEREOF, the parties hereunto state they have the authority\nand have duly executed this Agreement on the date first above written.<\/p>\n\n
 <\/p>\n\n<\/pre>\n\n\n\n\n\n\n
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UTStarcom, Inc.<\/p>\n<\/td>\n
\n
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Consultant<\/p>\n<\/td>\n<\/tr>\n
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\n
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By:<\/p>\n<\/td>\n
\n
\/s\/ David
\n  Robison<\/p>\n<\/td>\n
\n
\n<\/td>\n
\n
By:<\/p>\n<\/td>\n
\n
\/s\/ Norm Bangle,
\n  Jr.<\/p>\n<\/td>\n<\/tr>\n
\n
\n<\/td>\n
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\n<\/td>\n
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\n<\/td>\n
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Title:<\/p>\n<\/td>\n
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Title:<\/p>\n<\/td>\n
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\n<\/div>\n

<\/p>\n
\n
EXHIBIT A<\/u><\/b><\/p>\n
UTSTARCOM,
\nINC. POLICY REQUIRING COMPLIANCE WITH THE
\nECONOMIC ESPIONAGE ACT OF 1996<\/b><\/p>\n
It is the policy of UTStarcom, Inc. (\u0093UTStarcom\u0094) that both UTStarcom
\nand its employees comply with the requirements of the Economic Espionage Act of
\n1996 (\u0093EEA\u0094).<\/p>\n
The EEA provides criminal penalties of up to $10,000,000, 15 years in
\nprison, or both, where an individual or company knowingly undertakes any of the
\nfollowing acts (or attempts or conspires with others to commit any of the
\nfollowing acts):<\/p>\n
1.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Steals, or without authorization appropriates, takes,
\ncarries away, or conceals, or by fraud, artifice or deception obtains a trade
\nsecret;<\/p>\n
2.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Without authorization copies, duplicates, sketches,
\ndraws, photographs, downloads, uploads, alters, destroys, photocopies,
\nreplicates, transmits, delivers, sends, mails, communicates, or conveys a trade
\nsecret, or<\/p>\n
3.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Receives, buys, or possesses a trade secret, knowing the
\nsame to have been stolen or appropriated, obtained, or converted without
\nauthorization.<\/p>\n
The EEA defines \u0093trade secret\u0094 as: \u0093All forms and types of financial,
\nbusiness, scientific, technical, economic, or engineering information . . .
\nwhether tangible or intangible, and whether or how stored, compiled, or
\nmemorialized physically, electronically, graphically, photographically, or in
\nwriting if: 1) the owner of the trade secret has taken reasonable measures
\nto keep such information secret; and 2) the information derives
\nindependent economic value, actual or potential, from not being generally known
\nto, and not being readily ascertainable through proper means by the public.\u0094<\/p>\n
\n
\n
\n<\/div>\n

<\/p>\n
\n
EXHIBIT B<\/u><\/b><\/p>\n
UTSTARCOM,
\nINC.\u00a0 POLICY REQUIRING COMPLIANCE WITH
\nTHE FOREIGN CORRUPT PRACTICES ACT (FCPA)<\/b><\/p>\n
It is the policy of UTStarcom, Inc. (referred to here as \u0093UTStarcom\u0094 or
\nthe \u0093Company\u0094) that:<\/p>\n
1.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The
\nuse of Company funds or assets for any unlawful or improper purpose is strictly
\nprohibited.\u00a0 No payment shall be made
\nto, or for the benefit of, government employees for the purpose of, or
\notherwise in connection with, the securing of sales to or obtaining favorable
\naction by a government agency.\u00a0 Gifts of
\nsubstantial value to or lavish entertainment of government employees are
\nprohibited since they can be construed as attempts to influence government
\ndecisions in matters affecting the Company\u0092s operation.\u00a0 Any entertaining of public officials, or the
\nfurnishing of assistance in the form of transportation or other services should
\nbe of such nature that the official\u0092s integrity or reputation will not be
\ncompromised.<\/p>\n
2.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The
\noffer, payment, or promise to transfer in the future company funds or assets,
\nor the delivery of gifts or anything else of value to foreign officials,
\nforeign political parties or officials or candidates of foreign political
\nparties, is strictly prohibited for the purpose of influencing any act or
\ndecision of any such person in his or her official capacity, including the
\ndecision to fail to perform his or her official functions, or to use such
\npersons or party\u0092s influence with a foreign government or instrumentality in
\norder to affect or to influence any act or decision of such government or
\ninstrumentality in order to assist the Company in obtaining or retaining
\nbusiness for or with, or directing business to any person or entity.<\/p>\n
3.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 All
\nrecords must truly reflect the transactions they record.\u00a0 All assets and liabilities shall be recorded
\nin the regular books of account.\u00a0 No
\nundisclosed or unrecorded fund or asset shall be established for any
\npurpose.\u00a0 No false or artificial entries
\nshall be made in the books and records for any reason.\u00a0 No payment shall be approved or made with
\nthe intention or understanding that any part of such payment is to be used for
\nany purpose other than that described by the document supporting the payment.<\/p>\n
4.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 No
\npolitical contribution shall be made, directly or indirectly, with corporate
\nfunds or assets regardless of whether the contributions are legal under the
\nlaws of the country in which they are made.<\/p>\n
5.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Any
\nperson who learns of or suspects a violation of this Policy should promptly
\nreport the matter to the President or Chief Financial Officer, as appropriate
\nin the circumstances.\u00a0 All managers
\nshall be responsible for the enforcement of and compliance with this Policy,
\nincluding the necessary distribution to insure employee knowledge and
\ncompliance.<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[9205],"corporate_contracts_industries":[9516],"corporate_contracts_types":[9539,9541],"class_list":["post-40278","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-utstarcom-inc","corporate_contracts_industries-telecommunications__equipment","corporate_contracts_types-compensation","corporate_contracts_types-compensation__consulting"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/40278","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=40278"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40278"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40278"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40278"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}