MANUFACTURING LICENSE AGREEMENT<\/b><\/p>\n\n
THIS AGREEMENT DATED THIS 6TH DAY OF MARCH 2001 IS MADE BETWEEN: <\/p>\n\n
HIMACHAL FUTURISTIC COMMUNICATIONS LTD<\/b>, a company incorporated under the Companies Act, 1956, having its principal office at \nNo. 8, Commercial Complex Masjid Moth, Greater Kailash II, New Delhi 110048, India (hereinafter referred to as \"HFCL\"), which expression shall unless repugnant to the context or \nmeaning hereof, mean and include its successors and permitted assigns of the one Part; <\/p>\n\n
\n\n
AND
<\/b><\/p>\n\nUTStarcom, Inc<\/b>. a company established under laws of Delaware in the United States of America, having its \nprincipal office at 1275 Harbor Bay Parkway, Suite 100, USA (hereinafter referred to as \"UTStarcom\"), which expression shall unless repugnant to the context or meaning hereof, mean and include its \nsuccessors and permitted assigns of the other Part. <\/p>\n\n
HFCL \nand UTStarcom are hereinafter collectively referred to as the \"Parties\", and individually as a \"Party\". <\/p>\n\n<\/pre>\n
WHEREAS: <\/b><\/p>\n<\/ul>\n
A. UTStarcom designs, develops, manufactures, markets and sells digital loop carriers, including the Product (as hereinafter defined); <\/p>\n
B.
\nHFCL is in the business of manufacturing and supplying telecommunications equipment and wishes to manufacture and distribute the Product; <\/p>\n
C.
\nFor this purpose, HFCL wishes to obtain from UTStarcom a license to manufacture and sell the Product in India; <\/p>\n
D.
\nUTStarcom is willing to license to HFCL the right to manufacture the Product in India for sale in India; <\/p>\n
E.
\nHFCL has explained to UTStarcom the need to manufacture the Product on a [***] basis in order to be competitive; and <\/p>\n
F.
\nThe Parties intend that with respect to manufacturing the Product on a [***] basis, HFCL will require to obtain components and material from
\n[***] sources and other [***] sources wherever possible. <\/p>\n
For
\nvaluable consideration, including the mutual promises contained in this Agreement, the Parties agree to the following terms and conditions: <\/p>\n
1. DEFINITIONS<\/b><\/p>\n
Unless
\nthe context otherwise requires, the following expressions shall have the following respective meanings and terms defined in the text of this Agreement shall have the meanings
\nrespectively indicated: <\/p>\n
1.1 “Agreement<\/b>” shall mean this Agreement between HFCL and UTStarcom including any and all appendices attached to this \n 1.2 “Effective Date<\/b>” means: <\/p>\n (a) the (b) the 1.3 “Improvements<\/b>” means: <\/p>\n (a) all (b) all 1.4 “Product<\/b>” means the [***] as more fully described in Exhibit A and certain upgrades 1.5 “Technical Information<\/b>” means such designs, drawings, specifications and other information that UTStarcom uses for 1.6 “Territory<\/b>” shall mean [***]. <\/p>\n<\/ul>\n 2. TECHNICAL INFORMATION<\/b><\/p>\n 2.1 UTStarcom 2.2 UTStarcom 2.3 HFCL 2.4 In 2.5 If, 2<\/p>\n \ncease using and shall have no right to use any of the Technical Information, know-how and UTStarcom Improvements. <\/p>\n 2.6 Notwithstanding 2.7 The 3. IMPROVEMENTS.<\/b><\/p>\n 3.1 For 3.2 Section 3.1. 4. TECHNICAL ASSISTANCE; QUALITY CONTROL; VISITS<\/b><\/p>\n 4.1 UTStarcom 4.2 For 3<\/p>\n \nsuitably qualified employees of HFCL, not exceeding [***] in number, to UTStarcom’s facilities for visits not exceeding in the aggregate [***] per 4.3 All 4.4 HFCL 4.5 UTStarcom 4.6 HFCL 4.7 HFCL 5. CONFIDENTIALITY<\/b><\/p>\n 5.1 UTStarcom 4<\/p>\n \nAgreement solely on a confidential basis, conditioned upon HFCL not disclosing any portion of any Confidential Information to any third party, except to the extent such Confidential Information is 5.2 HFCL 5.3 The (a) is (b) is (c) is 5.4 All 5.5 The 5.6 HFCL 6. LICENSES<\/b><\/p>\n In 6.1 UTStarcom 6.2 UTStarcom 6.3 UTStarcom 6.4 UTStarcom 5<\/p>\n \n 6.5 To the extent any of the licenses described in Sections 6.1, 6.2 or 6.3 include software of any nature, the right granted with respect to such software shall be a (a) to (b) to 6.6 In 6.7 The 6.8 HFCL 6.9 HFCL 6.10 HFCL 6.11 Except 6.12 This 6<\/p>\n \nwould in any way be detrimental to UTStarcom’s rights and ownership in such trademarks, trade names, designs and logos. <\/p>\n 6.13 HFCL 6.14 UTStarcom 6.15 HFCL Year UTStarcom 7. CONSIDERATION.<\/b><\/p>\n 7.1 HFCL [***]\n<\/p>\n The 7.2 The 7.3 This (a) The (b) The This 7.4 Additionally, (a) pay (b) purchase 7<\/p>\n \n (c) not attempt to manufacture, purchase, or acquire in any other way the components referred to in 7.4(b) from any source other than UTStarcom without the prior 7.5 HFCL 7.6 HFCL (a) any (b) UTStarcom (c) if 7.7 Whether 7.8 [***] 7.9 The 7.10 All 7.11 HFCL 8<\/p>\n \nHFCL has not maintained sufficiently appropriate records, HFCL shall pay all costs associated with the auditor’s review. <\/p>\n 7.12 The (a) HFCL (b) HFCL In 8. COLLATERAL SUPPLIES.<\/b><\/p>\n To 9. NOVATION; ASSIGNMENT.<\/b><\/p>\n This 10. PATENTS, MARKING.<\/b><\/p>\n 10.1 UTStarcom 10.2 UTStarcom 10.3 HFCL 9<\/p>\n \nwith any breach by HFCL of this Agreement or any claim by third persons resulting from or in connection with HFCL’s assembly, manufacture, marketing, sale or use of Product, to the 10.4 HFCL 10.5 HFCL 11. GOVERNING LAW AND ARBITRATION.<\/b><\/p>\n 11.1 This 11.2 The 11.3 All 11.4 If (a) All 10<\/p>\n \ndemand for arbitration, and the arbitrator shall be an attorney experienced in international commercial transactions and trained in the common law system. <\/p>\n (b) Each (c) Each (d) All (e) All (f) The (g) The (h) The (i) The (j) Notwithstanding 11.5 Notwithstanding 11.6 The 11.7 The 12. TERM AND TERMINATION.<\/b><\/p>\n 12.1 Subject 12.2 Without (a) be (b) be (c) admit 11<\/p>\n \nhereunder, commence to be wound up or undergo any analogous act or proceeding under the laws of the state in which it is registered; <\/p>\n (d) be (e) fail (f) terminate 12.3 Upon 12.4 Upon 12.5 UTStarcom 12.6 If 12<\/p>\n \nUTStarcom’s inquiry within [***] shall constitute sufficient basis for UTStarcom to terminate this Agreement. <\/p>\n 12.7 No 12.8 The 13. FORCE MAJEURE.<\/b><\/p>\n In 14. WAIVER.<\/b><\/p>\n Failure 15. PUBLICITY.<\/b><\/p>\n 15.1 Publicity 15.2 HFCL 16. NOTICES; SERVICE.<\/b><\/p>\n All Either 13<\/p>\n \n 17. EFFORTS AND QUALITY.<\/b><\/p>\n HFCL 18. WARRANTY; EXCLUSIONS.<\/b><\/p>\n 18.1 UTStarcom (a) it (b) the 18.2 Except 18.3 Except 18.4 HFCL (a) it (b) it (c) it (d) it 19. GOVERNMENT APPROVALS.<\/b><\/p>\n 19.1 This 14<\/p>\n \napprovals and licenses, including from the United States Government and any other entity or person that may have regulatory or other authority over this Agreement or any activity contemplated pursuant 19.2 HFCL 20. RELATIONSHIP OF THE PARTIES.<\/b><\/p>\n HFCL 21. LIMITATION OF LIABILITY.<\/b><\/p>\n 21.1 EXCEPT 21.2 IN 22. SEVERABILITY.<\/b><\/p>\n In 15<\/p>\n \n 23. NO RIGHTS IN THIRD PARTIES.<\/b><\/p>\n This 24. HEADINGS AND REFERENCES.<\/b><\/p>\n The 25. ENTIRE AGREEMENT.<\/b><\/p>\n No 26. CONSTRUCTION.<\/b><\/p>\n This 16<\/p>\n \n AS WITNESS<\/b> the hands of the duly authorized representatives of the Parties hereto, effective as of the day and year first written \n Exhibit “A” Product Elements, controlled ASICS, (Page 1) This Exhibit A lists the defining plug-in modules for the Product. The Product may also consist of associated mechanical, cabling and power \n Exhibit “A” Product Elements, controlled ASICS, (Page 2) \n Exhibit “A” Product Elements, Controlled, ASICS (Page 3) \n Exhibit “A” Product Elements, controlled ASICS (Page 4) Notes:<\/b><\/p>\n \n Exhibit “A” Product Elements, controlled ASICS, (Page 5) The following is the list of controlled ASICS: <\/p>\n \n EXHIBIT “B” Technical Information For The \n EXHIBIT “C” Terms of Payment ASICS and FPGAs HFCL shall make payments to UTStarcom for ASICs and FPGAs against an [***] to be established by HFCL in favour of UTStarcom with a bank
\nAgreement. <\/p>\n<\/ul>\n
\n\n
\n
\ndate of this Agreement, or <\/p>\n
\ndate on which all consents, licenses, permits and approvals of any relevant governmental or non-governmental agency or body necessary to consummate
\nthe transactions contemplated in this Agreement including Secretariat for Industrial Assistance\/Reserve Bank of India approval in terms of Article 7, have been obtained, released or issued, as
\nthe case may be, whichever is later. <\/p>\n<\/ul>\n\n
\ninformation, of a nature similar to the Technical Information, that UTStarcom acquires or puts into use during the term of this Agreement for purposes of
\nmanufacturing the Product (“UTStarcom Improvements”); and <\/p>\n
\ninformation of a nature similar to the Technical Information that HFCL devises or develops in connection with or for purposes of manufacturing the Product
\nincluding improvements in terms of Sections 6.9 and 6.10 below (“HFCL Improvements”). <\/p>\n<\/ul>\n
\nfrom time to time in the same product hierarchy. <\/p>\n
\nthe purposes of manufacturing the Product, including written documentation and unwritten know-how used by UTStarcom in the assembly, manufacture, testing, sale, use and maintenance of the
\nProduct, as more fully described in Exhibit B. <\/p>\n\n
\nshall, on a time scale mutually agreed by the Parties and commensurate with the reasonable requirements of HFCL in that behalf supply to HFCL such
\nTechnical Information [***] necessary to enable HFCL to assemble the Product at HFCL’s plant(s) in the Territory. <\/p>\n
\nshall not be obliged to make any alterations to any document, extract or copy which it supplies hereunder as part of the Technical Information or in
\nrelation to any UTStarcom Improvement. <\/p>\n
\nshall use the Technical Information, know-how and UTStarcom Improvements only for the manufacture of the Product at the manufacturing plant of HFCL
\nin the Territory and shall not use any Technical Information, know-how or UTStarcom Improvements in any manner or for any other purpose not expressly authorized by this Agreement. HFCL
\nshall not part with or dispose of, whether by sale, transfer, gift or other disposition, any Technical Information, know-how or UTStarcom Improvements except as expressly and previously
\npermitted by UTStarcom in writing. <\/p>\n
\nthe event that any deficiency, inaccuracy, error or other defect shall at any time become apparent in any Technical Information so supplied by UTStarcom,
\nUTStarcom shall, upon receiving a written request from HFCL, promptly use all reasonable endeavors to make and supply the appropriate corrections. <\/p>\n
\nwithin [***] of executing this Agreement, HFCL does not commence manufacturing the Product; then UTStarcom shall have the right to deem
\nthis Agreement terminated, effective upon UTStarcom’s giving written notice to HFCL. Upon receiving such notice, HFCL shall, in addition to its obligations and liabilities under Sections 12.3, 12.4
\nand 12.6 of this Agreement and its obligation to pay the technology license fee in accordance with the terms of this Agreement, <\/p>\n<\/ul>\n
\n\n
\nSection 2.5, UTStarcom may in its absolute discretion allow HFCL a reasonable extension to commence manufacturing the Product of up to
\n[***] term if the failure to start manufacturing the Product arises from a force majeure or is substantially caused by UTStarcom’s failure to provide the Technical Information
\nin a timely manner, unless such failure on the part of UTStarcom is attributable to an act or omission of HFCL or is directly caused by any reason substantially attributable to the acts of a third
\nparty reasonably within the control of HFCL. <\/p>\n
\nParties acknowledge that except as specifically licensed to HFCL under this Agreement, UTStarcom owns or has licenses to, to the exclusion of HFCL, all rights,
\ntitle and interest in the Technical Information, know-how, UTStarcom Improvements and the Product, as they exist now and as they may exist in the future, and in all related
\nknow-how and all software that may be provided by UTStarcom as part of or in connection with the Technical Information, know how or UTStarcom Improvements for the manufacture of the
\nProduct. HFCL warrants that its use of any of the Technical Information, know-how or UTStarcom Improvements for manufacture of the Product shall not directly or indirectly create in or for
\nHFCL any right, title or interest in such Technical Information, know-how or UTStarcom Improvements, except as expressly specified in this Agreement. <\/p>\n<\/ul>\n\n
\n[***] after the Effective Date, subject to grant of appropriate export licenses in the United Stated of America, UTStarcom shall supply
\nHFCL with Technical Information relating to UTStarcom Improvements including software upgrades that are actually incorporated by UTStarcom into the Product. Upon request [***]
\nof HFCL, UTStarcom shall furnish engineering personnel to provide the know-how to allow HFCL to obtain the benefits of the UTStarcom Improvements, upon terms and conditions related to
\nroyalty payments for Improvements to be mutually agreed to in writing. All information contained in UTStarcom Improvements, including the related know-how, when provided pursuant to such
\nmutual agreement, shall become a part of the Technical Information. <\/p>\n
\ndoes not apply to new products. The manufacturing information on certain upgrades\u0097[***] shall be supplied
\n[***] by UTStarcom. UTStarcom expects these designs to be mature by the [***]. <\/p>\n<\/ul>\n\n
\nshall, at HFCL’s request and prepayment of [***] applicable charges and expenses, including but not limited to
\n[***] and such other [***] expenses, and subject to the availability of UTStarcom personnel, take all reasonable steps to arrange for UTStarcom
\nengineers and technicians, as appropriate to work at the plant in India where HFCL will manufacture the Product, to establish and bring into operation the manufacturing processes of the Product and to
\ntrain HFCL personnel, as may be required by HFCL. UTStarcom shall determine in its sole discretion the number, identity and level of expertise of the personnel required to provide technical assistance
\nto HFCL, and HFCL shall obtain all necessary prior approvals, including all immigration permits and authorizations, from the Government of India for UTStarcom engineers and technicians to visit the
\nplant and shall pay UTStarcom in accordance with UTStarcom’s standard charges then in effect for such services. <\/p>\n
\nthe purpose of familiarizing HFCL’s staff with the methods used by UTStarcom in relation to the manufacture of the Product, HFCL shall be
\nentitled during the term of this Agreement, on request, but in each case at a time reasonably convenient to UTStarcom, to send <\/p>\n<\/ul>\n
\n\n
\n[***]. UTStarcom will also host visits by employees of HFCL’s customers on terms and conditions subject to mutual agreement. HFCL shall be responsible for
\n[***] such employees’ [***] expenses in connection therewith. HFCL shall [***] UTStarcom from all damages, losses, claims and
\nexpenses of any nature whatsoever arising from any deliberate act or omission of HFCL’s personnel while with UTStarcom for the purpose of such training. Additionally, HFCL shall cause
\nall such personnel to execute and abide by any and all confidentiality agreements and other requirements that UTStarcom may reasonably request. <\/p>\n
\ninformation communicated by UTStarcom to HFCL pursuant to Sections 4.1 and 4.2 shall constitute Technical Information of UTStarcom and HFCL shall keep all such
\ninformation confidential as is required by Article 5, whether or not elsewhere described and whether or not summarized in writing and given by UTStarcom to HFCL. <\/p>\n
\nshall procure all necessary approvals, licenses, no-objection certificates, sanctions, permits, permissions, waivers, certificates, consents, and
\nother such items from the concerned governmental authorities as are required under law or reasonably recommended by UTStarcom’s counsel, including as may be required under the Environmental Protection
\nAct, Factories Act and other such laws, to enable HFCL to manufacture the Product in accordance with this Agreement. In manufacturing the Product, HFCL shall observe all applicable laws in the
\nTerritory with respect to manufacturing, labeling and installation of the Product. <\/p>\n
\nshall have the right, [***] and on reasonable prior notice to HFCL, to inspect HFCL’s premises and the premises of
\nany of HFCL’s permitted sub-contractors from time to time engaged in assembling or testing of the Product or any parts or components of the Product, for purposes of
\nreviewing the quality of HFCL’s manufacturing process and of the end product. If at any time UTStarcom determines that HFCL’s process or the end product does not conform
\nto UTStarcom’s requirements, it shall so inform HFCL. Upon receiving notice of such non-conformance, HFCL shall take all steps required to cause its processes and the end products to
\nconform to UTStarcom’s requirements and provide a written undertaking to UTStarcom of such compliance. <\/p>\n
\nundertakes to conform to UTStarcom’s quality standards. In order to ensure HFCL’s compliance with UTStarcom’s quality standards, qualitative
\nspecifications, descriptions and directions specified by UTStarcom from time to time, in relation to the manufacture of the Product, HFCL undertakes to manufacture the Product in accordance with the
\nTechnical Information provided, the applicable laws of the Territory and as per standards and procedures that are equivalent to that maintained by UTStarcom in its own manufacture of the Product. HFCL
\nshall make no change or alteration in the Product manufactured without the prior written consent of UTStarcom. UTStarcom reserves the right to access into and inspect the premises of HFCL and of any
\nsubcontractors in order to ascertain that the quality of the Product meets UTStarcom’s quality standards. Upon request of
\nUTStarcom or UTStarcom’s designated agents, HFCL shall furnish UTStarcom with information and copies of documents necessary for UTStarcom to obtain assurance that the Product is manufactured using the
\nTechnical Information and know-how in accordance with this Agreement and in compliance with applicable laws. <\/p>\n
\nshall implement such procedures or regulations as UTStarcom may consider necessary to ensure conformity to UTStarcom’s quality standards and to impose
\ncorrective actions as deemed necessary. <\/p>\n<\/ul>\n\n
\ndiscloses the Technical Information, know-how and UTStarcom Improvements (in this Article collectively referred to as “Confidential
\nInformation”) to HFCL pursuant to this <\/p>\n<\/ul>\n
\n\n
\nneeded by customers of HFCL for use, maintenance or repair of the Product. Disclosure of any Confidential Information to any officer, director, consultant or employee of HFCL for the manufacture of
\nthe Product will be on “as needed basis” and all such Confidential Information shall be subject to the confidentiality requirements of section 5 of this agreement. HFCL shall use the
\nConfidential Information only for the assembly, manufacture, testing, repair, marketing, sale and use of the Product strictly in accordance with the terms of this Agreement and for no other purpose. <\/p>\n
\nundertakes that it will keep the Confidential Information communicated to it by UTStarcom confidential. <\/p>\n
\nobligations of HFCL with respect to the Confidential Information shall not apply to any information which, <\/p>\n\n
\nalready in HFCL’s possession at the date of first communication by UTStarcom and HFCL can reasonably demonstrate that it was in its rightful
\npossession at the date of first communication by UTStarcom; <\/p>\n
\nnow or, in the future becomes public knowledge otherwise than by reason of any breach of this Agreement by HFCL; or <\/p>\n
\nreceived by HFCL from any other person in good faith, and who has no restriction with respect to disclosing such Confidential Information. <\/p>\n<\/ul>\n
\ndocuments and extracts comprising or containing Technical Information and Improvements, including the copyright therein, shall be and remain the property of
\nUTStarcom, and HFCL shall not in any way reproduce such material. <\/p>\n
\nprovision of confidentiality shall remain into force for a period of five years after expiration or termination of this Agreement. <\/p>\n
\nunderstands that disclosure of Confidential Information may irreparably harm UTStarcom. In the event of breach or threatened breach of obligations pertaining
\nto Confidential Information, UTStarcom shall be entitled to seek injunctive relief and any other remedy available at law or equity. <\/p>\n<\/ul>\n
\nconsideration of the performance of the Parties’ respective obligations herein: <\/p>\n\n
\nhereby grants to HFCL [***] license to use the Technical Information to assemble, manufacture, and test the Product in the
\nTerritory. <\/p>\n
\nhereby grants to HFCL [***] license to use, sell, lease, install, maintain and repair the Product in the Territory. <\/p>\n
\nhereby grants to HFCL the license to assemble, manufacture, test, use, sell, lease, install, maintain and repair, in accordance with Sections 6.1 and 6.2,
\nthe Product under the Patents owned or controlled by UTStarcom and under which UTStarcom has the right to grant such a license. <\/p>\n
\nhereby grants to HFCL the license to print, copy and distribute Product related user documentation in paper, electronic or CDROM media in the Territory in
\nconjunction with the sale of Product. <\/p>\n<\/ul>\n
\n\n
\n[***] license solely with respect to the object code of such software: <\/p>\n\n
\n[***] such software only to customers of HFCL for use with the Product in the Territory; and <\/p>\n
\nuse such software for HFCL’s own purposes in operating the Product to the extent provided in this Agreement. <\/p>\n<\/ul>\n
\ngranting these licenses to HFCL, UTStarcom does not in any way grant any ownership interest in any of the software referred to in Section 6.4 and does not
\ngrant any interest to utilize, discover or in any way obtain the source code or any human perceivable version of any such software. UTStarcom reserves all rights not expressly granted under this
\nAgreement by UTStarcom to HFCL. <\/p>\n
\nlicense and rights granted as above in Sections 6.1, 6.2 and 6.3 shall at all times be subject to the terms and conditions of this Agreement, shall be limited
\nto the sole extent required for the purpose for which they are granted and shall remain in effect only as long as HFCL fully complies with the terms and conditions of this Agreement. <\/p>\n
\nshall not, and shall require and ensure that all of its customers and users do not, reverse compile, reverse engineer, reverse assemble or otherwise attempt in
\nany way to obtain or create any source code or other humanly perceivable version of the software. HFCL shall require its customers to enter into such sublicenses with its customers which shall
\ninclude, among other things, provisions to safeguard and keep secret UTStarcom’s Improvements, know-how, Technical Information and all software and which shall contain such of the terms
\nand conditions as may be agreed from time to time by UTStarcom and HFCL. In addition, HFCL shall supply or include UTStarcom’s intellectual property notices in all copies made of all of UTStarcom
\nsupplied software. <\/p>\n
\nshall inform UTStarcom immediately upon the creation of any perceived or actual modification, improvement or other change to the Product or to the Technical
\nInformation conceived, developed, modeled or in any way worked on by HFCL or any agent, representative, contractor or employee of HFCL (an “HFCL Improvement”). <\/p>\n
\nhereby assigns, transfers and coveys to UTStarcom all rights, title and interest in every HFCL Improvement, and UTStarcom hereby grants to HFCL a license,
\nidentical in terms to the license
\nthat UTStarcom grants to HFCL pursuant to this Agreement with respect to the Technical Information, to all HFCL Improvements. HFCL shall take all such further acts and execute and deliver to UTStarcom
\nall such instruments as may be required, or reasonably recommended by counsel, to perfect, register or enforce UTStarcom’s ownership of the rights conveyed under this Section 6.10 or to carry
\nout the intent and purpose of this Agreement. <\/p>\n
\nas specifically permitted by this Agreement or in writing signed by UTStarcom, HFCL shall not, and shall not have the right to, utilize
\nsub-contractors for the purposes of assembling or testing the Product. <\/p>\n
\nAgreement does not grant any right to HFCL, and HFCL shall have no right, interest or title to use the trademark “UTStarcom” or any other trademark, trade
\nname, design or logo of UTStarcom, except that HFCL may use the printed and unstylized name, “UTStarcom, Inc.” for the limited use required by Section 6.13. Furthermore, HFCL shall not
\nuse any trademark, trade name, design or logo that may be confusingly similar to any of the trademarks, trade names, designs or logos of UTStarcom, nor shall HFCL take any action that <\/p>\n<\/ul>\n
\n\n
\nshall include written notices in all advertising literature, sales brochures and the like, as well as on the Product, to the affect that the Product “is
\nmanufactured under license from UTStarcom, Inc.” <\/p>\n
\nshall decide, in consultation with HFCL, what logo(s) are to be displayed on Product. HFCL shall comply with such a requirement. <\/p>\n
\nexpects that following will be minimum sale of lines of the product year wise: <\/p>\n\n
\n
\n2001 [***]
\nYear 2002 [***]
\nYear 2003 [***]
\nYear 2004 [***]
\nYear 2005 [***] <\/p>\n<\/ul>\n<\/ul>\n<\/ul>\n
\nreserves the right to review HFCL’s sales performance [***] and make this agreement [***] if failure to
\nachieve the sales targets is primarily due to lack of proper effort on HFCL’s part. <\/p>\n\n
\nshall pay UTStarcom a technology license fee in upto [***] instalments, not exceeding [***], to be calculated
\nin terms of para 7.2. The first [***] payment will be due immediately on completion of following activities: <\/p>\n<\/ul>\n
\nfirst payment shall be due on the last day of first [***] and subsequent payments shall be done in the same manner. The calendar year is to be divided into
\nthe following [***]. Subsequent installments will be due on the last day of each of the [***] following the due date of the first payment. The payment
\nshall be made within [***] from the invoice date. <\/p>\n\n
\namount of each installment payable would be calculated based upon the quantity of Product manufactured and shipped by HFCL in the [***]
\nimmediately preceding the date of the payment. The rate at which the technology license fee adjustment is calculated varies with the different types of Product components manufactured and is detailed
\nin Exhibit A. <\/p>\n
\nAgreement will automatically terminate upon the occurrence of the earlier of the two events: <\/p>\n\n
\ncumulative amount of the license fee payment under this Agreement equaling or exceeding [***] <\/p>\n
\ncompletion of [***] installments of [***] payments of license fee. <\/p>\n<\/ul>\n<\/ul>\n
\nagreement may be renewed immediately upon termination with mutual agreement of HFCL and UTStarcom. <\/p>\n\n
\nHFCL shall <\/p>\n\n
\nUTStarcom a [***] software license fee of [***], payable within [***] of signing of this
\nagreement and <\/p>\n
\nfrom UTStarcom or a UTStarcom authorized agent, all application specific integrated circuits, (ASIC) or field programmable gate arrays (FPGAs) that HFCL
\nincorporates into a Product, in accordance with the pricing in Exhibit “A” and terms of Exhibit “C.” <\/p>\n<\/ul>\n<\/ul>\n
\n\n
\n
\nwritten approval of UTStarcom. <\/p>\n<\/ul>\n
\nshall be responsible for applying for and obtaining all approvals required for remitting payments to UTStarcom required under this Agreement, including
\nSecretariat for Industrial Assistance\/Reserve Bank of India approval. HFCL shall use all reasonable diligence and expediency to obtain all required approvals for remitting payments to UTStarcom
\nrequired under this Agreement. If HFCL is unable to obtain any required approval for remitting payments to UTStarcom required under this Agreement within [***] of signing this
\nAgreement, then this Agreement shall terminate in accordance with Section 12.2(f), and the provisions of Sections 12.3, 12.4 and 12.7 shall apply. <\/p>\n
\nshall make all payments under this Agreement [***], without recourse to UTStarcom for any reimbursement, contribution or indemnity.
\nNotwithstanding its obligations pursuant to the prior sentence HFCL shall deduct [***] on the amount to be remitted to UTStarcom on account of: <\/p>\n\n
\nfee or other amount to be paid by HFCL to UTStarcom; or <\/p>\n
\nwith respect to any such fee or <\/p>\n
\nsuch tax is required by the Government of India to be paid by UTStarcom or withheld by anyone paying to UTStarcom. <\/p>\n<\/ul>\n
\nas a result of any payment under this Agreement or any characterization by the Government of India or any payment due under this Agreement, HFCL shall
\nensure that the tax is withheld and paid on behalf of UTStarcom and all other parties liable for such tax and shall also
\nprovide to UTStarcom, immediately after each such tax payment, an official tax receipt or other evidence of payment issued by the tax authority with respect to such tax. HFCL shall indemnify and hold
\nUTStarcom harmless from any liability with respect to any tax, including all taxes levied on this Agreement, duties, levies or other fees of any kind whatsoever, which become payable as a consequence
\nof this Agreement, inside the Territory other than the withholding tax as proposed in para 7.6. <\/p>\n
\nshall be responsible for taxes on its net income arising in the United States as a result of its providing the Technical Information
\nand assistance in connection with this Agreement. <\/p>\n
\nParties acknowledge that all payments set forth in this Agreement are not based entirely upon the trade secret nature of the Technical Information or the
\nanticipation of patent protection, but also reflect the value of certain information that is not generally known to the public being available to HFCL for its use to manufacture, test, market and sell
\nthe Product. <\/p>\n
\npayments from HFCL to UTStarcom shall be in [***]. <\/p>\n
\nshall keep and maintain all appropriate records including records of every Product manufactured in such form and manner that all payments payable under this
\nAgreement to UTStarcom may be readily and accurately determined. Such records shall include, without limitation, all information necessary for HFCL’s auditors to prepare the reports
\nprovided for in this section. Beginning with the signing of this Agreement and for up to [***] after either the termination of this Agreement UTStarcom shall have the right,
\n[***] to retain independent auditors to review HFCL’s records with respect to every Product manufactured to verify the accuracy of the statements provided and
\namounts paid pursuant to this Article. If the auditors find an overpayment or an underpayment, the difference shall be accounted for in the subsequent statement of accounting and payment. If the
\nauditor’s review verifies an underpayment in excess of [***] of the royalties payable for any [***] period under review, or if the auditors determine
\nthat <\/p>\n<\/ul>\n
\n\n
\nApplication Specific Integrated Circuit (ASIC) chips listed in Exhibit A may only be procured by HFCL as per procedures approved by UTStarcom. Initially
\nthe following procedures are approved: <\/p>\n\n
\nmay purchase the listed ASICS from UTStarcom. UTStarcom agrees to charge not more than a [***] surcharge on the cost of procurement and
\nprogramming of these items. <\/p>\n
\nmay purchase the listed ASICS directly from third party vendors and send them to UTStarcom’s facility in China for programming. HFCL agrees to pay a
\n[***] programming fee per ASIC chip thus programmed. <\/p>\n<\/ul>\n<\/ul>\n
\naddition, UTStarcom will explore the feasibility of establishing a programming facility in India, either at a third party’s premises or in HFCL’s premises. Under
\nsuch a scenario, UTStarcom will invoice HFCL the actual cost of such programming incurred by UTStarcom. UTStarcom reserves the right to modify the list of controlled ASICS in Exhibit A at any
\ntime by informing HFCL of the change in writing. UTStarcom will make a good faith effort to reduce the size of the list to the minimum in order to contain administrative and overhead costs. <\/p>\n
\nthe extent necessary to support HFCL in its manufacturing activity, UTStarcom undertakes, subject to UTStarcom’s availability and the parties’ agreement on terms, reasonably to
\nsupply HFCL with assembly, and testing tools, equipment and parts, as the parties determine separately in writing. Except as may be expressly provided in such other written agreement, UTStarcom shall
\nhave no obligation of any nature to supply any part or component to HFCL. <\/p>\n
\nAgreement is personal to HFCL and HFCL shall not have any right to dispose in any way, by lease, transfer, novation or assignment, partially or totally, any license granted to it
\nunder this Agreement, to any third person, in form of a sub-license or any other form, unless previously authorized in writing by UTStarcom. Any attempted assignment or delegation in
\nviolation of this Article 9 shall be void. <\/p>\n\n
\nshall not be liable to indemnify HFCL against any loss sustained by it as the result of any claim made, or any action brought by, any third party for
\ninfringement of any letters, patent, registered design, or like instrument of privilege by reason of the manufacture, assembly, use or sale by HFCL of the Product using the Technical Information, the
\nImprovements or any other information supplied or to be supplied to HFCL pursuant to this Agreement. If any such claim is brought against HFCL, UTStarcom shall take all reasonable steps to provide
\nHFCL with copies of UTStarcom’s documentation to assist HFCL in defending itself under such claim. UTStarcom confirms that all intellectual property rights for proprietary software developed by
\nUTStarcom is held by UTStarcom, except to the extent licensed such as pursuant to this Agreement. <\/p>\n
\nshall not be bound to take legal proceedings against any third party in respect of any infringement of letters, patent, registered design or like
\ninstrument of privilege which may now or at any future time be owned by it. <\/p>\n
\nshall indemnify and hold UTStarcom, [***] harmless from and against all losses, costs, expenses and damages, including reasonable
\nattorneys’ fees, resulting from or in connection <\/p>\n<\/ul>\n
\n\n
\nextent such third party claim does not arise from any design, act or omission directly attributable to UTStarcom, subject to UTStarcom having notified HFCL promptly in writing of any such claim,
\ntendered to HFCL the defense or settlement of any such claim at HFCL’s expense, and cooperated with HFCL, at HFCL’s expense, in defending or settling such claim. <\/p>\n
\nshall defend, indemnify and hold UTStarcom harmless from and against all claims, causes of action, lawsuits, loss, expenses, obligations, damages, and
\nliability, including costs of defense and reasonable attorney’s fees, whether in contract or tort, including negligence and strict liability, as a result of property damage, personal injuries or death
\nof any persons arising out of, or proximately caused by, in whole or in part, any action or inaction by HFCL or any defect, including any design defect, attributable, to or involving the manufacture,
\nuse, lease or sale of any Product. <\/p>\n
\nshall reproduce in all copies that it makes or causes to be made of any aspect of the Product all patent, copyright and proprietary notices included by
\nUTStarcom on any publication, software and firmware provided in connection with this Agreement so as to continue to maintain UTStarcom’s rights therein. If instructed in writing by UTStarcom, HFCL
\nshall modify such notices in order to comply with all applicable laws. <\/p>\n<\/ul>\n\n
\nAgreement shall be governed by and interpreted and construed in accordance with the laws of India. Each Party consents to the -exclusive personal jurisdiction
\nof the courts of India. The Parties specifically [***] the application of the United Nations Convention on the International Sale of Goods. <\/p>\n
\nParties shall seek to resolve all disputes arising out of or in connection with this Agreement, including the construction, validity, performance or breach of
\nthis Agreement, without resorting to
\nlitigation or arbitration. Prior to either Party utilizing the remedies detailed in Section 11.4, it shall first notify the other Party that the notifying Party wishes to resolve a dispute,
\ncontroversy or claim that it has with the other Party arising out of or connected to this Agreement (a “Dispute”). As soon as practical and no later than [***] after the other
\nParty receives a notice of Dispute, each Party shall appoint a dispute representative (“Dispute Representative”) who shall contact the other Party toward seeking a resolution to the Dispute. <\/p>\n
\ndiscussions, correspondence and negotiations between the Parties pursuant to their seeking a resolution in accordance with Section 11. 1 shall be exempt
\nfrom discovery and production, and shall not be admissible in any litigation or arbitration with respect to the Dispute, without the written consent of both Parties. Documents identified in or
\nprovided with such communication, which are not prepared for purposes of the Dispute resolution in accordance with Section 11.2 shall not be so exempted and may, if otherwise admissible, be
\nadmitted in evidence in any such arbitration or litigation. <\/p>\n
\nthe negotiations taken place pursuant to Section 11.2 do not resolve the Dispute within [***] of the other Party’s receipt of the
\nnotice of Dispute, either Party may submit the Dispute to binding arbitration to be held in London, England pursuant to the Rules of Conciliation and Arbitration of the International Chamber of
\nCommerce (the “ICC”) in accordance with the laws of England, modified as follows: <\/p>\n\n
\nproceedings, filings and submissions shall be made solely in English, the matter shall be heard before a single arbitrator who must be selected by the mutual
\nconsent of both Parties, failing which by the ICC within [***] of submission of the respondent’s answer to the <\/p>\n<\/ul>\n<\/ul>\n
\n\n
\n
\nParty shall be entitled to pre-hearing depositions of not more than three percipient witnesses. <\/p>\n
\nParty shall identify all witnesses, including experts, and produce copies of all documents to be used at the hearing at least 90 days prior to the
\nhearing. <\/p>\n
\nexperts identified under Section 11.4(c) shall be subject to deposition by the opposing party at any time prior to the discovery cut-off in
\nSection 11.4(e). <\/p>\n
\ndiscovery must be completed at least 30 days prior to the hearing. <\/p>\n
\nhearing on the matter shall occur within 180 days after selection of the arbitrator. <\/p>\n
\narbitrator’s decision shall be in accordance with the law of England, except that exemplary damages shall not be awarded. <\/p>\n
\narbitrator shall be deemed instructed by this Agreement and the Parties to issue a written decision within 60 days after completion of the hearing. <\/p>\n
\narbitrator may award costs and expenses, including reasonable legal fees, to the prevailing Party. <\/p>\n
\nthe foregoing procedures in this Section 11.4, the Parties may modify these procedures by written agreement. <\/p>\n<\/ul>\n
\nthe provisions set forth above in this Article 11, UTStarcom may initiate litigation for the purpose of seeking an injunction or other
\nrelief, or other equitable relief in order to seek enforcement of any equitable remedy referred to in Section 5.6. <\/p>\n
\nParties shall continue to perform the Agreement during the arbitration proceedings, and neither Party shall withhold any payment due or otherwise payable under
\nthis Agreement unless any such payment is, or forms a part of, the subject matter of the arbitration proceeding. <\/p>\n
\nParties shall consent to such extension of time as may be necessary for the arbitrators to make their award. <\/p>\n<\/ul>\n\n
\nto the following provisions of this Article, this Agreement and the rights and licenses hereby granted or agreed to, shall continue in force for
\n[***] or until the termination of the Agreement according to the provisions of article 7.3, whichever is earlier. <\/p>\n
\naffecting UTStarcom’s rights pursuant to Section 2.5, in the event that HFCL shall at any time during the term of this Agreement: <\/p>\n\n
\nin breach of any of its obligations under this Agreement, including the obligations to purchase the ASICS pursuant to Article 7, where such breach is
\nirremediable or, if capable of remedy, is not remedied within [***] of notice from UTStarcom requiring its remedy; <\/p>\n
\nor become bankrupt or insolvent, unable to pay its debts as they fall due; <\/p>\n
\nin writing that it is unable to pay its debts, make any composition with its creditors, have a receiver or manager appointed for the whole or any part of its
\nundertaking or assets or, otherwise than as a solvent company for the purpose of and followed by an amalgamation or reconstruction where-under its successor shall be bound by its obligations <\/p>\n<\/ul>\n<\/ul>\n
\n\n
\n
\nacquired or otherwise come under the direct or indirect control of a person or persons other than those controlling it as of the Effective Date; <\/p>\n
\nto receive required approvals for remitting payments to UTStarcom as required under this Agreement or failure to make any payment to UTStarcom as and when due
\npursuant to this Agreement including payments under Article 7; or <\/p>\n
\nthis Agreement for any reason other than the expiration of [***] after the Effective Date if the term of this Agreement has not
\nbeen previously extended by mutual written agreement, subject to any required regulatory approvals, then, and in any such event, UTStarcom may forthwith by notice in writing terminate this Agreement,
\nand thereupon all rights and licenses hereby granted or agreed to be granted by UTStarcom pursuant to this Agreement shall immediately terminate. <\/p>\n<\/ul>\n
\ntermination, HFCL shall immediately cease manufacturing the Product using the Technical Information, know-how and any Improvement and shall
\nimmediately desist from using the Technical Information, know-how and all Improvements for any purpose whatsoever. HFCL shall promptly, on UTStarcom’s request, and return to UTStarcom at
\nHFCL’s cost or destroy all copies of all documents
\nand extracts comprising or in any way containing any Technical Information, know-how or Improvements. HFCL shall procure a declaration from its board of directors as well as its legal
\ncounsel to be delivered to UTStarcom confirming that all Technical Information, know-how and Improvements, including all designs, drawings, models, samples, plans, documents,
\nspecifications and other information supplied to it by UTStarcom and all copies of such information in HFCL’s possession have been destroyed or returned. The Parties expressly agree
\nthat UTStarcom shall not be liable or responsible to HFCL or to any third party claiming under or through HFCL for any claims, damages, or costs in any way whatsoever, arising in connection with any
\ntermination of this Agreement. <\/p>\n
\ntermination of this Agreement, all rights and obligations granted under or imposed by this Agreement shall immediately cease and terminate except for the
\nrights, duties and obligations which by their nature one would reasonably expect to survive, including the rights and obligations covered in such provisions in this Agreement with respect to payments,
\nthe sublicensed use of technology, Confidential Information, trademarks, indemnities, warranties, remedies and limitations of liability, independent contractors, export controls, governing law,
\narbitration and jurisdiction, assignment, severability, publicity, legal expenses, notices, subject headings, waiver and this Agreement being the entire agreement of the Parties. <\/p>\n
\nshall not be in breach of this Agreement or liable for any damages, losses or expenses whatsoever which occur as the direct or indirect result of any
\ndelay or inability to export the Technical Information, any know-how or any UTStarcom Improvement, or any item hereunder, due to the action or inaction of any United States Government
\nAgency. <\/p>\n
\nUTStarcom reasonably determines that HFCL has breached in any way any obligation with respect to the disclosure and use of Confidential Information of
\nUTStarcom, including the Technical Information, know-how and UTStarcom Improvements, UTStarcom shall be immediately entitled to exercise all of its rights under this Agreement and under
\nthe law without regard to any notice or waiting period or any other provision of this Agreement. Notwithstanding the prior sentence, UTStarcom shall not terminate this Agreement or any of
\nHFCL’s rights to the Technical Information under it unless UTStarcom has first made inquiry upon HFCL with respect to such breach and allowed HFCL [***] to
\nrespond to such inquiry. Any failure by HFCL to respond to <\/p>\n<\/ul>\n
\n\n
\ntermination of this Agreement shall prejudice the accrued rights of either Party, and the foregoing remedies are in addition to and shall not affect other
\nremedies available under the governing law of this Agreement. <\/p>\n
\nterms of this agreement will apply to all manufacture and sale of the Product, to any customer whatsoever by HFCL, except the sale undertaken to DOT under the
\nterms of the [***]. The sale of the Product to DOT by HFCL as required by the [***] will continue to be governed by the terms of the agreement signed by
\nUTStarcom and HFCL on 6th<\/sup> Day of April 2000. <\/p>\n<\/ul>\n
\nthe event that either party shall be delayed or impeded in the performance of any of its obligations hereunder by industrial disputes, or by any cause beyond its reasonable
\ncontrol, including but not limited to war, hostilities, disorder, embargoes or export restrictions, acts of God, fire, earthquakes, storm, proclamations, regulation, ordinance or any other analogous
\nevents, it shall not be liable to other for any failure to carry out or to observe any of the terms, provisions or conditions of this Agreement and be entitled to such extension of time as may be
\nreasonable in all the circumstances. <\/p>\n
\nby either Party to enforce at any time any of the provisions of this Agreement or any delay in exercising any right, power or remedy under this Agreement shall not be
\nconstrued as a waiver by such Party of any such provisions nor in any way affect the validity of the Agreement or any part thereof. <\/p>\n\n
\nor advertising relating to this Agreement may be released by either of the Parties hereto only with the prior written approval of the other Party. <\/p>\n
\nshall state in advertisements and publicity relating to the Product that it is manufactured under license from UTStarcom. <\/p>\n<\/ul>\n
\nnotices, requests, reports and communications of any type given or transferred by a Party to the other in connection with this Agreement shall be given in writing and shall be
\ndeemed effective when delivered to the other Party addressed as provided below: <\/p>\n\n
\n If to HFCL:
<\/b><\/p>\n
<\/th>\n <\/th>\n If to UTStarcom:
<\/b><\/p>\n
<\/th>\n<\/tr>\n\n \nManaging Director
\nHFCL, 8 Commercial Complex,
\nMasjid Moth, Greater Kailash \u0097 II
\nNew Delhi-110048 India<\/td>\n <\/td>\n \nDirector, India Operations,
\n33 Wood Avenue, South
\nIselin, NJ 08852<\/td>\n<\/tr>\n\n \nFax +91-11-6217784
\nAttention: <\/u><\/td>\n <\/td>\n \nFax: +1 732 767 5274
\nAttention: Ruchir Godura<\/td>\n<\/tr>\n<\/table>\n
\nParty may change the address at which it wishes to receive notices under this article by giving notice to the other Party of the new address. <\/p>\n
\n
\nshall maintain manufacturing standards for the Product to assure that their quality is at least equal to the Product produced by UTStarcom. In order to verify quality of the
\nProduct HFCL shall permit UTStarcom’s representative to inspect and test any assembled Product at HFCL’s facilities prior to shipment. <\/p>\n\n
\nwarrants that: <\/p>\n\n
\nhas the right to license the Technical Information, the know-how and the UTStarcom Improvements to HFCL as contemplated by this Agreement; and <\/p>\n
\nTechnical Information, know-how and UTStarcom Improvements furnished to HFCL under this Agreement are substantially equivalent to what UTStarcom
\nuses, as of the Effective Date, to manufacture the Product. <\/p>\n<\/ul>\n
\nas specifically provided in this Article 18, the Technical Information, know-how and UTStarcom Improvements, including such provided
\nsoftware, are provided to HFCL and licensed on an “AS IS”<\/b> basis WITHOUT ANY WARRANTY WHATSOEVER, AND THE PARTIES EXPRESSLY
\nEXCLUDE ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE TECHNICAL INFORMATION, KNOW-HOW AND UTSTARCOM IMPROVEMENTS, AS WELL AS ANY PRODUCT, AND THE PARTIES EXCLUDE ALL
\nIMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE PARTIES ALSO SPECIFICALLY EXCLUDE ALL WARRANTIES OF NON-INFRINGEMENT WITH RESPECT TO THIRD PARTY
\nRIGHTS.<\/b><\/p>\n
\nas otherwise specifically provided for in this Agreement, each Party shall be responsible for any and all liability to all third persons based on claims
\narising out of such Party’s own manufacture, use or sale of any Product or any other product, whether or not in conformity with the Technical Information, know-how or UTStarcom
\nImprovements. <\/p>\n
\nwarrants that: <\/p>\n\n
\nshall be fully responsible for providing all support, maintenance and repair for all end users of every Product that it manufactures, distributes or sells and
\nshall take all commercially reasonable efforts to ensure that no such end user contacts UTStarcom for any support or other issue with respect to any Product; <\/p>\n
\nshall manufacture the Product using only high quality materials and top class workmanship and that the end product will be free from any defect in manufacture,
\nmisbranding, merchantable and fit for the intended use. HFCL shall take all reasonable care and skill in manufacturing the Product; <\/p>\n
\nhas the necessary expertise and staffing capabilities to manufacture the Product and to perform its obligations under this Agreement and that the Product
\nmanufactured will conform in all respect with the specifications provided by UTStarcom; and <\/p>\n
\nshall give proper consideration and weight to the interests of UTStarcom in all dealings and abide by all rules, regulations, standards methods, procedures and
\ninstructions provided to it by UTStarcom. <\/p>\n<\/ul>\n<\/ul>\n\n
\nAgreement is subject to the United States export laws and regulations, and HFCL acknowledges that no technical data or other information to be provided
\npursuant to this Agreement may be exported until UTStarcom has first obtained all necessary and recommended <\/p>\n<\/ul>\n
\n\n
\nto this Agreement. <\/p>\n
\nshall be responsible for obtaining all approvals of the Government of India and every other regulatory body that may be needed or recommended for entering
\ninto this Agreement and performing all of the obligations provided for under this Agreement. Specifically HFCL shall be responsible for obtaining all type approvals and all other authorizations,
\nlicenses and permits connected in any way to interconnecting or otherwise utilizing the Product in India and with any existing or future telecommunications system. HFCL shall obtain all such
\nauthorizations, licenses and permits on behalf of and for the benefit of UTStarcom and shall in no way utilize any such authorization, license or permit or its rights connected to any of them to block
\nor in any way restrict UTStarcom from enjoying, directly or indirectly, the rights and privileges obtained pursuant to any such authorization, license or permit. <\/p>\n<\/ul>\n
\nand UTStarcom are independent contractors. Neither Party nor its employees, consultants, contractors or agents are agents, employees or joint venturers of the other Party, nor do
\nthey have any authority to bind the other Party by contract or otherwise to any obligation. Neither Party shall expressly, implicitly, by appearance or otherwise make any representation contrary to
\nthe relationship described in this Article 20. The Parties do not intend for this Agreement or any relationship between them to create any aspect of a franchise in any way or manner. <\/p>\n\n
\nFOR LIABILITY ARISING IN CONNECTION WITH A BREACH OF THE OBLIGATIONS PROVIDED IN ARTICLE 5 OF THIS AGREEMENT, NOTWITHSTANDING ANY OTHER PROVISION OF THIS
\nAGREEMENT, IN NO CASE SHALL EITHER PARTY, ITS AFFILIATES OR THEIR EMPLOYEES AND AGENTS, BE LIABLE TO THE OTHER PARTY
\nFOR INDIRECT, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR LOSS OF PROFITS OR CAPITAL REVENUE IN CONNECTION WITH THIS AGREEMENT EVEN IF IT HAS BEEN ADVISED AS TO THE
\nPOSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS APPLY TO ALL CAUSES OF ACTION AND CLAIMS, INCLUDING WITHOUT LIMITATION, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND OTHER
\nTORTS. BOTH PARTIES UNDERSTAND AND AGREE THAT THE REMEDIES, EXCLUSIONS AND LIMITATIONS IN THIS AGREEMENT ALLOCATE RISKS BETWEEN THE PARTIES AS ALLOWED BY LAW. THE TERMS AND CONDITIONS IN THIS
\nAGREEMENT REFLECT, AND ARE SET IN RELIANCE UPON, THIS ALLOCATION OF RISKS AND THE EXCLUSION OF CONSEQUENTIAL DAMAGES AND LIMITATIONS OF LIABILITY SET FORTH IN THIS PARAGRAPH. <\/p>\n
\nNO EVENT SHALL UT STARCOM’S LIABILITY TO HFCL OR ANY OTHER PARTY ARISING UNDER THIS AGREEMENT OR IN CONNECTION WITH ANY PRODUCT EXCEED THE
\n[***] OR [***] WHICHEVER IS LESS. <\/p>\n<\/ul>\n
\nthe event that any one or more provisions of this Agreement shall be declared to be illegal or unenforceable under any law, rule, or regulations of any government having
\njurisdiction over the Parties hereto, such illegibility or unenforceability shall not affect the validity and enforceability of the other provisions of this Agreement, and the parties shall agree upon
\na modification to this Agreement with respect to such illegal or unenforceable provisions to eliminate such invalidity or unenforceability. <\/p>\n
\n
\nAgreement is made for the benefit of HFCL and UTStarcom and not for the benefit of any third party individual or entity. <\/p>\n
\nsubject headings of the articles of this Agreement are included for the purpose of convenience only and shall not affect the construction or interpretation of any of its
\nprovisions. <\/p>\n
\nmodification or addition to this Agreement or its enclosures shall be binding on the two Parties unless specifically agreed upon, in writing, by the Parties themselves. This
\nAgreement contains the entire agreement between the Parties and supersedes all agreements, expressions of interest, communications and other representations, understandings, and agreements, oral or
\nwritten, between the Parties with respect to the subject matter of this Agreement. For purposes of interpretation and performance hereof, the English language version of this Agreement shall be
\ncontrolling and binding on the Parties. <\/p>\n
\nAgreement has been negotiated by the Parties and their respective counsel and shall be interpreted fairly in accordance with its terms and without any strict construction in
\nfavor of or against either Party. <\/p>\n
\n
\nabove. <\/p>\n\n
\n Signed for and on behalf of<\/b><\/td>\n <\/td>\n Signed for and on behalf of<\/b><\/td>\n<\/tr>\n \n
\nHIMACHAL FUTURISTIC COMMUNICATION Ltd.<\/b><\/td>\n
<\/b><\/td>\n
\nUTStarcom, Inc.<\/b><\/td>\n<\/tr>\n\n \nBy:<\/td>\n <\/td>\n \n <\/td>\n <\/td>\n \nBy:<\/td>\n <\/td>\n \n <\/td>\n<\/tr>\n \n <\/td>\n <\/td>\n \n
<\/td>\n <\/td>\n <\/td>\n <\/td>\n \n
<\/td>\n<\/tr>\n\n Name:<\/td>\n <\/td>\n <\/td>\n <\/td>\n Name:<\/td>\n <\/td>\n <\/td>\n<\/tr>\n \n <\/td>\n <\/td>\n \n
<\/td>\n <\/td>\n <\/td>\n <\/td>\n \n
<\/td>\n<\/tr>\n\n Title:<\/td>\n <\/td>\n <\/td>\n <\/td>\n Title:<\/td>\n <\/td>\n <\/td>\n<\/tr>\n \n <\/td>\n <\/td>\n \n
<\/td>\n <\/td>\n <\/td>\n <\/td>\n \n
<\/td>\n<\/tr>\n<\/table>\n
\n
<\/b><\/p>\n
\nsubsystems and components that are reasonably required to support the operation of the items in the below list. <\/p>\n\n
\n Item<\/b><\/p>\n
<\/th>\n <\/th>\n Module Description<\/b><\/p>\n
<\/th>\n <\/th>\n Technology License Fee($US)<\/b><\/p>\n
<\/th>\n<\/tr>\n\n 1<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n<\/tr>\n \n 2.1<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n<\/tr>\n \n 2.2<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n<\/tr>\n \n 3<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n<\/tr>\n<\/table>\n
\n
<\/b><\/p>\n\n
\n Item<\/b><\/p>\n
<\/th>\n <\/th>\n Module Description<\/b><\/p>\n
<\/th>\n <\/th>\n Technology License Fee($US)<\/b><\/p>\n
<\/th>\n<\/tr>\n\n 4<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n<\/tr>\n \n 5<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n<\/tr>\n \n 6<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n<\/tr>\n \n 7<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n<\/tr>\n \n 8<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n<\/tr>\n \n 9<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n<\/tr>\n<\/table>\n
\n
<\/b><\/p>\n\n
\n Item<\/b><\/p>\n
<\/th>\n <\/th>\n Module Description<\/b><\/p>\n
<\/th>\n <\/th>\n Technology License Fee($US)<\/b><\/p>\n
<\/th>\n<\/tr>\n\n 10<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n<\/tr>\n \n 11<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n<\/tr>\n \n 12<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n<\/tr>\n \n 13<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n<\/tr>\n \n 14<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n<\/tr>\n \n 15<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n<\/tr>\n \n 16<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n<\/tr>\n<\/table>\n
\n
<\/b><\/p>\n\n
\n Item<\/b><\/p>\n
<\/th>\n <\/th>\n Module Description<\/b><\/p>\n
<\/th>\n <\/th>\n Technology License Fee($US)<\/b><\/p>\n
<\/th>\n<\/tr>\n\n 17<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n<\/tr>\n \n 18<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n<\/tr>\n \n 19<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n<\/tr>\n \n 20<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n<\/tr>\n \n 21<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n<\/tr>\n \n 22<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n<\/tr>\n \n 23<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n<\/tr>\n \n 24<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n<\/tr>\n \n 25<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n<\/tr>\n<\/table>\n
\n\n
\nTechnical Information for the [***] will be provided by HFCL <\/p>\n<\/dd>\n
\nlicense fee for [***], when used in one to one correspondence with a [***] is [***] <\/p>\n<\/dd>\n
\nlicense fee for a [***] when used to deliver [***] as a subscriber service is [***]. License fee for
\n[***] line card will be determined later by UTStarcom <\/dd>\n<\/dl>\n
\n
<\/b><\/p>\n\n
\n S\/N<\/b><\/p>\n
<\/th>\n <\/th>\n ASIC code<\/b><\/p>\n
<\/th>\n <\/th>\n UTS Part (top)<\/b><\/p>\n
<\/th>\n <\/th>\n UTS P\/N<\/b><\/p>\n
<\/th>\n <\/th>\n Base Code<\/b><\/p>\n
<\/th>\n<\/tr>\n\n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n<\/tr>\n \n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n<\/tr>\n \n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n<\/tr>\n \n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n<\/tr>\n \n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n<\/tr>\n \n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n<\/tr>\n \n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n<\/tr>\n \n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n<\/tr>\n \n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n<\/tr>\n \n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n<\/tr>\n \n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n<\/tr>\n \n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n<\/tr>\n \n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n<\/tr>\n \n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n<\/tr>\n \n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n<\/tr>\n \n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n<\/tr>\n \n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n<\/tr>\n \n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n<\/tr>\n \n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n<\/tr>\n \n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n<\/tr>\n \n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n<\/tr>\n \n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n<\/tr>\n \n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n<\/tr>\n \n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n<\/tr>\n \n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n<\/tr>\n \n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n <\/td>\n [***]<\/td>\n<\/tr>\n<\/table>\n
\n
<\/b><\/p>\n
\neach part of the Product to be manufactured by HFCL, UTStarcom will supply the following information: <\/p>\n\n
\n
\nList for each Printed Circuit Board including Procurement specifications, vendor details and order code of vendors <\/p>\n<\/dd>\n
\nfiles for each Printed Circuit Board <\/p>\n<\/dd>\n
\ndetails and files in object code (excluding FPGA [ASIC] object code). <\/p>\n<\/dd>\n
\nDiagram <\/p>\n<\/dd>\n
\nDiagram <\/p>\n<\/dd>\n
\nDrawings including manufacturing drawings for each Printed Circuit Board <\/p>\n<\/dd>\n
\neach Sub-system and for the total system the following Technical Literature in English <\/p>\n<\/dd>\n
\nDescription <\/p>\n<\/dd>\n
\nand Operation Manual <\/p>\n<\/dd>\n
\nManual which contains test plans and procedure <\/p>\n<\/dd>\n
\nand Repair Manual which also contains Trouble shooting procedures <\/p>\n<\/dd>\n
\nof any special jigs for manufacturing and testing <\/p>\n<\/dd>\n
\nof Test instruments required for testing <\/dd>\n<\/dl>\n<\/ul>\n
\nabove information shall be provided for the Product Elements as in Exhibit “A” <\/p>\n
\n
<\/b><\/p>\n
\nauthorized by the Reserve Bank of India to deal in foreign exchange and acceptable to UTStarcom in its sole discretion. HFCL shall open a [***]for each ASIC and\/or FPGA at the
\ntime it orders them from UTStarcom. UTStarcom may also indicate in writing to HFCL, alternative means of payment and HFCL may choose to use such means. <\/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":[9613,9616],"class_list":["post-42514","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-utstarcom-inc","corporate_contracts_industries-telecommunications__equipment","corporate_contracts_types-operations","corporate_contracts_types-operations__ip"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42514","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=42514"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42514"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42514"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42514"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}