\nARTICLE VII TERMINATION………………………………………………9<\/p>\n 7.01 Termination…………………………………………9
\n 7.02 Termination for Insolvency or Bankruptcy………………10
\n 7.03 Rights Upon Termination……………………………..10
\n 7.04 Return of Materials…………………………………10
\n 7.05 No Liability……………………………………….10<\/p>\n
ARTICLE VIII MISCELLANEOUS…………………………………………..10<\/p>\n
8.01 Limitation of Liability……………………………..10
\n 8.02 Entire Agreement……………………………………11
\n 8.03 Relationship of Parties……………………………..11
\n 8.04 Confidentiality…………………………………….11
\n 8.05 Survival of Maintenance Obligations…………………..12
\n 8.06 Notices……………………………………………12
\n 8.07 Force Majeure………………………………………12
\n 8.08 Governing Law………………………………………13
\n 8.09 Binding Effect……………………………………..13
\n 8.10 Exhibits…………………………………………..13
\n 8.11 Severability……………………………………….13
\n 8.12 Headings…………………………………………..13
\n 8.13 Remedies Cumulative…………………………………13
\n 8.14 Delays or Omissions…………………………………13
\n 8.15 Survival of Terms…………………………………..13
\n 8.16 Nonexclusive Market and Purchase Rights……………….14
\n 8.17 Software Licenses…………………………………..14
\n 8.18 Choice of Language………………………………….14
\n 8.19 Export Control and Related Provisions…………………14<\/p>\n
EXHIBITS
\nExhibit 1 Description of Products
\nExhibit 2 International Price List
\nExhibit 3 Initial Forecasted Volumes
\nExhibit 4 Time Schedule
\nExhibit 5 Foundry Networks Service Guide
\nExhibit 6 Customization
\nExhibit 7 Return Material Authorization Procedure<\/p>\n
<\/c><\/s><\/caption>\n<\/table>\n
-ii-<\/p>\n
OEM AGREEMENT<\/p>\n
THIS OEM AGREEMENT (the “AGREEMENT”) is made and entered into as of
\nthe date set forth on the cover page hereof (the “Effective Date”), between
\nFoundry Networks, Inc. (the “SUPPLIER”), and UTStarcom, Inc. a Delaware
\ncorporation and on behalf of its subsidiaries (the “PURCHASER”).<\/p>\n
The Supplier develops, manufactures, produces and\/or supplies
\nhigh-performance networking products and desires to grant to the Purchaser
\nthe right to sell and market certain of such products, and combine same with
\nother products manufactured, produced and supplied by the Supplier, all upon
\nthe terms and conditions set forth in this Agreement. The Purchaser develops,
\nmanufactures and\/or sells and distributes telecommunications access and
\nnetworking products and desires to have the right to sell and market the
\nSupplier’s products upon the terms and conditions in this Agreement within
\nthe “Territory” as defined in Article 1.04 (xi) below.<\/p>\n
NOW THEREFORE, in consideration of the mutual covenants and
\nagreements contained herein, and other good and valuable consideration, the
\nreceipt and sufficiency of which are hereby acknowledged, the parties hereto
\nagree as follows:<\/p>\n
ARTICLE I<\/p>\n
TERM OF AGREEMENT; DEFINED TERMS<\/p>\n
1.01 GENERAL RELATIONSHIP. During the term of this Agreement, the
\nSupplier agrees to make available and sell to the Purchaser the Products (as
\ndefined in Section 1.04 of this Agreement) set forth in Exhibit 1 in
\naccordance with the terms and conditions set forth herein.<\/p>\n
1.02 TERM OF AGREEMENT. The term of this Agreement shall commence
\non the Effective Date and shall remain in full force and effect for one year
\nor until terminated by either party as set forth herein.<\/p>\n
1.03 EXCLUSIVITY. As a result of preexisting relationships the
\nSupplier is unable to offer non-exclusive rights to the Purchaser to sell
\nProducts in the Territory. Notwithstanding, the Supplier hereby warrants and
\nrepresents that it will not actively recruit any entity or individual to sell
\nProducts to any Telecom Carrier in [***] (as defined in Section 1.04 of the
\nAgreement) in the Territory. If minimum revenue projections are not met after
\ninitial [***] of this agreement, supplier may notify the Purchaser, in
\nwriting, of its intent to seek additional distribution partners.<\/p>\n
1.04 DEFINITIONS As used in this Agreement, the following terms
\nshall have the meanings indicated, unless the context clearly indicates
\notherwise:<\/p>\n
(i) “APPLICABLE SPECIFICATIONS” means the functional performance,
\noperational and compatibility characteristic of a Product agreed upon in
\nwriting by the parties or, by mutual agreement of the parties, as described
\nin applicable Documentation.<\/p>\n
(ii) “CUSTOMERS” means distributors, dealers, resellers, value-added
\nresellers, system integrators and other similar customers of the Purchaser,
\nincluding End Users.<\/p>\n
(iii) References to “dollars” and “$” refer to United States currency.<\/p>\n
(iv) “DOCUMENTATION” means user manuals, training materials, product
\ndescriptions and specifications, technical manuals, license agreements,
\nsupporting materials and other printed information relating to the Products,
\nwhether distributed in print, electronic or video format, in effect as of the
\ndate of the applicable purchase order relating thereto.<\/p>\n
(v) “END USERS” means final retail purchasers or licensees who acquire
\nProducts for their own use and not for resale, re-marketing or redistribution.<\/p>\n
(vi) “PRODUCTS” means, individually or collectively as appropriate, the
\nhardware, licensed software, Documentation, supplies, accessories and other
\ncommodities related to any of the foregoing as set forth in Exhibit 1 and
\ncustomized in accordance with the requirements set forth in Exhibit 6 and which
\nare to be provided by the Supplier pursuant to this Agreement.<\/p>\n
(vii) “PURCHASE ORDER” means an official document, signed by an
\nauthorized employee of the Purchaser, which is used to place product orders with
\nthe Supplier.<\/p>\n
(viii) “PURCHASER TRADEMARKS” means any existing or future trademarks
\nthat are registered by the Purchaser in the US or other countries.<\/p>\n
(ix) “SERVICES” means any warranty, maintenance, advertising, marketing
\nor technical support and training and any other services performed or to be
\nperformed by the Supplier.<\/p>\n
(x) “TELECOM CARRIER” means any provider of voice or data transmission
\nservices within the Territory, including but not limited to [***] and\/or any
\nsubsidiaries of such Telecom Carriers.<\/p>\n
(xi) “TERRITORY” means the countries, regions and territories as
\ndefined in Exhibit 2. This list may be ammended from time to time by mutual
\nagreement of the parties.<\/p>\n
ARTICLE II
\n PURCHASE ORDERS; REPORTS<\/p>\n
2.01 ISSUANCE AND ACCEPTANCE OF PURCHASE ORDERS. The Purchaser may
\npurchase, and the Supplier shall sell to the Purchaser, Products as described
\nbelow;<\/p>\n
(a) The Purchaser may issue to the Supplier Purchase
\nOrders based on the prices listed in Exhibit 1 identifying the Products that the
\nPurchaser desires to purchase from the Supplier. Each Purchase Order for
\nProducts shall be signed by an authorized representative of the Purchaser, and
\nshall clearly state the following:<\/p>\n
(i) Purchase Order number,<\/p>\n
(ii) Purchase order date,<\/p>\n
(iii) a description of the Product(s) ordered,<\/p>\n
(iv) Purchaser’s Product number,<\/p>\n
(v) number of units of Product ordered,<\/p>\n
(vi) agreed cost per unit, the total price for
\nthe Purchase Order,<\/p>\n
(vii) delivery date(s) requested for each
\nProduct included in the Purchase Order (which delivery dates may not be later
\nthan [***] after the date on which the Purchase Order is submitted by the
\nPurchaser),<\/p>\n
(viii) address to which the Products described
\nin the Purchase Order are to be shipped, and<\/p>\n
(ix) address to which the Products described
\nin the Purchase Order are to be invoiced.<\/p>\n
(b) A Purchase Order may include other terms and
\nconditions which are consistent with the terms and conditions of this Agreement
\nor which are necessary to place a Purchase Order. Purchase Orders may be placed
\nby the Purchaser by facsimile or electronically transferred to the Supplier.
\nTerms and conditions on Purchase Orders which differ from those contained in
\nthis Agreement shall not be valid unless specifically agreed in writing by an
\nauthorized representative of the Supplier.<\/p>\n
(c) All Purchase Orders shall be transmitted to the
\naddress set forth in Section 8.06.<\/p>\n
(d) A Purchase Order shall be deemed accepted by the
\nSupplier only after a written confirmation thereof has been issued by the
\nSupplier and delivered to the Purchaser. The Supplier shall issue such
\nwritten confirmation within [***] after receipt of the Purchase Order. If
\nsuch confirmation has not been issued within the [***] period, the Purchase
\nOrder shall be deemed to be accepted by the Supplier. Without limiting the
\ngenerality of the foregoing, the Supplier may reject any Purchase Order that
\nfails to contain any of the information required to be set forth by Section
\n2.01(a). In the event of a conflict between the provisions of this Agreement
\nand the terms and conditions of a Purchase Order or the Supplier’s
\nconfirmation or other written communications, the provisions of this
\nAgreement shall prevail and be controlling.<\/p>\n
-2-<\/p>\n
(e) Upon the termination of this Agreement, the Supplier
\nagrees to accept Purchase Orders from the Purchaser for additional Products
\nwhich, at the time of such termination, the Purchaser is contractually obligated
\nto furnish to its Customers and does not have in its inventory, provided that
\nthe Purchaser notifies the Supplier of all such obligations in writing within
\n[***] of such date of termination.<\/p>\n
(f) This Agreement shall not obligate the Purchaser to
\npurchase any Products or Services, except as specifically set forth in a written
\nPurchase Order from the Purchaser or as otherwise set forth herein.<\/p>\n
2.02 INVOICES. For each shipment of Products to the Purchaser,
\nthe Supplier shall transmit to the Purchaser an invoice which sets forth the
\nPurchaser’s Purchase Order number, the Products shipped, the Supplier’s and
\nthe Purchaser’s Product number and the price therefore.<\/p>\n
2.03 ROLLING [***] FORECAST. No later than [***] after the end
\nof each [***], the Purchaser shall deliver to the Supplier an updated,
\nnon-binding, forward-looking rolling unit order forecast (each, a “ROLLING
\n[***] FORECAST”) for each Product for the subsequent [***] period, to enable
\nthe Supplier to plan production to meet the lead times anticipated. The
\nRolling [***] Forecast is not an order or a commitment by the Purchaser to
\npurchase Products. Rolling [***]Forecasts shall be transmitted to the
\nSupplier via electronic mail or by such other means as may be agreed between
\nthe Supplier and the Purchaser. Exhibit 4 sets forth the initial forecasted
\nvolumes.<\/p>\n
2.04 PURCHASE ORDER MODIFICATIONS OR CANCELLATIONS. <\/p>\n
(a) Prior to shipment of Products, the Supplier shall
\naccept a modification to a Purchase Order in order to:<\/p>\n
(i) change a location for delivery,<\/p>\n
(ii) change dates for delivery of Products
\nprovided that said new delivery dates remain within the Suppliers’ fiscal
\nquarter of the original shipment date, or<\/p>\n
(iii) correct typographical or clerical
\nerrors; provided, however, that notices of modification must be received by
\nthe Supplier at least [***] prior to the original shipment date.<\/p>\n
(b) The Purchaser will confirm [***] before end of
\n[***]the forecasting of the following [***] by PO for delivery of orders
\nconsistent with the Suppliers then current lead times. In the case that the
\nPO quantity is less than the forecasting quantity, the over-forecasted
\nquantity will be shifted to the [***] following. In the case that the PO is
\nlarger than the forecasted quantity, Foundry Networks will make reasonable
\nefforts to satisfy the demand for non-forecasted units.<\/p>\n
2.05 CUSTOMIZATION REQUIREMENTS. In accordance with the time
\nschedule in Exhibit 4, the Supplier will modify the Products to fulfill the
\ncustomization requirements in Exhibit 6.<\/p>\n
-3-<\/p>\n
2.06 Hardware and Software Enhancements. Should the Supplier
\nchange, improve or add any enhancements to a Product at any time during the
\nterm of this Agreement, the Supplier shall provide at least [***] notice to
\nthe Purchaser of same prior to the implementation thereof. The Supplier will
\nmake available to the Purchaser each new version of software made available
\nby the Supplier from time to time to its customers generally. With respect to
\nmodifications in software and the rendition of other services that may be
\nrequested of the Supplier by the Purchaser, the provision of same shall be as
\nmutually agreed by the parties, and without limiting the generality of the
\nforegoing, the Supplier may charge for such modifications or other services
\n[***]. Modifications to software and changes in product features which are
\nnot part of the Supplier’s standard releases are not part of this Agreement,
\nexcept to the extent set forth in Exhibit 5 and as the Supplier may otherwise
\nagree in writing. At the request of the Purchaser and upon the agreement of
\nthe Supplier, such modifications or other services may be provided at a
\npre-determined price.<\/p>\n
2.07 COST REDUCTION PROGRAM. The Parties agree to cooperate to
\nensure that the Supplier’s manufacturing of the Products at any time is
\nperformed in the most cost efficient way hereunder on [***] basis to evaluate
\nthe possibility of conducting a cost reduction program. The parties agree
\nthat all cost reductions should be to the benefit of both Parties and as such
\nreflected in the prices for the Products.<\/p>\n
2.08 INITIAL ORDER. The Purchaser will place an initial order
\nfor [***] to be used as a Test\/Demonstration System (“TDS”) in accordance
\nwith the time schedule of Exhibit 4.<\/p>\n
ARTICLE III<\/p>\n
DELIVERY AND ACCEPTANCE OF PRODUCTS<\/p>\n
3.01 TITLE AND RISK OF LOSS. Title to Products shall pass to the
\nPurchaser at the time that the Products are delivered to the [***]. Products
\nshall be shipped [***]. All risk of loss or damage to the products shall be
\nborne by the Supplier until delivery to the [***].<\/p>\n
3.02 ACCEPTANCE OF PRODUCTS. Acceptance of the TDS by Purchaser
\nwill be based upon mutually agreed tests and success criteria. Each Product
\nshipment thereafter will be deemed accepted by Purchaser upon delivery to the
\n[***].<\/p>\n
3.03 DEFECTIVE PRODUCTS. In the event that any Products are
\nreceived by the Purchaser in a defective condition or not in accordance with
\nthe Applicable Specifications, including the Purchaser’s customization
\nrequirements therefore or the Documentation relating to such Products
\n(collectively, “DEFECTIVE PRODUCTS”), the Purchaser may return such Defective
\nProducts to the Supplier in the manner set forth in Section 6.01(b). The
\nPurchaser shall have the right to return any such Defective Products within
\nsixty (60) days after delivery and in accordance with any applicable warranty
\nwith respect thereto.<\/p>\n
-4-<\/p>\n
ARTICLE IV<\/p>\n
PRICES: PAYMENT TO THE SUPPLIER<\/p>\n
4.01 PRICES FOR PRODUCTS. The price for each Product purchased
\nby the Purchaser pursuant hereto shall include the agreed discount on the
\nSupplier’s list price for such Product.<\/p>\n
(a) The prices set forth in Exhibit 1 shall be discounted
\naccording to the Discount Schedule and Forecasted Volumes of Exhibit 3. The
\nParties will on a [***] basis negotiate the discounts and prices based on the
\nprevious actual volume purchased and the future forecast. Furthermore, the
\nParties agree to reevaluate prices if significant changes in market conditions
\noccur, and as Supplier’s cost of manufacturing permits.<\/p>\n
(b) The Supplier agrees that [***] discount will be
\ngranted on the project base in order to win the business.<\/p>\n
(c) Supplier will update the price list once the new
\none is available to any other distributors, resellers or its repesent offices.<\/p>\n
4.02 PAYMENT. The Supplier shall invoice the Purchaser no
\nearlier than the applicable shipping date for the Products covered by such
\ninvoice.<\/p>\n
(a) The Purchaser shall submit to Supplier payment for
\nany Purchase Order:<\/p>\n
(i) within [***] of the date of shipment of
\nthe Products on such Purchase Order paid by company check issued in Alameda,
\nCalifornia.<\/p>\n
(b) Invoices that are unpaid at their due date, shall
\nbear interest at a rate of [***] or the maximum rate allowed by law,
\nwhichever is less, until paid by Purchaser.<\/p>\n
(c) If deliveries are made in installments, the
\ninvoice with respect to each shipment shall be paid when due without regard
\nto the other scheduled deliveries.<\/p>\n
4.03 TAXES. All payments to the Supplier hereunder shall be made
\nfree and clear of and without reduction by reason of any taxes, levies, costs
\nor charges whatsoever imposed, assessed, levied or collected by any
\ngovernment, political subdivision, jurisdiction or taxing authority, all of
\nwhich shall be for the account of the Purchaser and paid when due by the
\nPurchaser, unless the Purchaser shall have provided the Supplier with a valid
\nresale exemption certificate with respect thereto. Notwithstanding the
\nforegoing, if, under any applicable law, the Purchaser is required to
\nwithhold tax or any other amount from any payment to the Supplier, the amount
\ndue from the Purchaser to the Supplier shall be increased to the amount that
\nthe Supplier would have received if no withholding had been required.<\/p>\n
-5-<\/p>\n
4.04 PLACE OF PAYMENT. The Purchaser shall pay all amounts due
\nto the Supplier into such account as the Supplier may designate in U.S.
\ndollars. Payment shall be deemed to have been made only upon receipt of full
\npayment in the account specified pursuant hereto.<\/p>\n
ARTICLE V<\/p>\n
PROMOTION AND SALE OF PRODUCTS<\/p>\n
5.01 PURCHASER TRADEMARKS. The Purchaser authorizes the Supplier
\nto apply the Purchaser’s name or Purchaser Trademarks to the Products, as
\ndirected by the Purchaser, for the sole purpose of supplying Products
\npursuant to this Agreement. The Supplier shall acquire no right to the
\nPurchaser Trademarks by its use thereof, and may use the Purchaser Trademark
\nfor the duration of this Agreement only to the extent specified herein. Any
\nsuch use of Purchaser Trademarks by the Supplier shall be to the Purchaser’s
\nbenefit.<\/p>\n
(a) The Purchaser shall retain the sole and exclusive
\nright, in its discretion, to bring legal action for trademark infringement with
\nrespect to any of the Purchaser Trademarks.<\/p>\n
(b) The Purchaser agrees to indemnify and hold the
\nSupplier harmless from and against an and all actions, claims, losses and
\ndamages (including reasonable attorneys’ fees and court costs) arising out of or
\nin connection with the use of any Purchaser Trademark by the Supplier pursuant
\nto the terms of this Agreement.<\/p>\n
(c) The Purchaser agrees that it will not use any trade
\nnames and trademarks of or licensed to the Supplier, all of which shall remain
\nthe property of the Supplier. The Purchaser agrees not to contest any trade
\nnames or trademarks of or licensed to the Supplier, or make application for
\nregistration of any trade names or trademarks of or licensed to the Supplier,
\nwithout the Supplier’s prior written consent. The Purchaser agrees not to use,
\nemploy or attempt to register any trade names or trademarks that are confusingly
\nsimilar to the trade names or trademarks of or licensed to the Supplier.<\/p>\n
(d) The Purchaser shall provide the Supplier the
\napplicable templates and computer graphic files necessary to create the
\nlogos\/markings requested to be affixed to the products ordered by the Purchaser.
\nSupplier requests that these materials be provided at least [***] prior to first
\nshipment where this is required by the Purchaser.<\/p>\n
5.02 PRODUCT LABELING. All Products will be shipped to the
\nPurchaser as set forth in Exhibit 6.<\/p>\n
5.03 SUPPLIER MATERIALS. The Supplier agrees to provide upon the
\nPurchaser’s request, [***], the following materials in media form with
\nrespect to the Products: (i) the specifications, (ii) published user
\ninstructions, manuals and other training materials, (iii) current manuals
\ncovering installation, operation and maintenance of the Products, and (iv)
\nsoftware. (v) Sales Tools such as presentation slides, competition analysis
\nand demonstration software, etc. The Purchaser shall have <\/p>\n
-6-<\/p>\n
the right to copy or reproduce the foregoing materials for use in connection
\nwith the Purchaser’s use, sale or support of the Products, or its support
\nthereof pursuant to Section 5.06, provided that the Purchaser makes no
\nmodifications in such copied or reproduced materials without the prior
\nwritten consent of the Supplier and all designations or references therein of
\nor relating to the intellectual property rights of the Supplier shall be
\nmaintained (including, without limitation, all references to the Supplier’s
\ncopyright and other intellectual property rights. The Purchaser shall include
\nwith each Product delivered to a Customer a license agreement if so required
\nby the Supplier and warranty in the form promulgated by the Supplier (with
\nappropriate changes to reflect the OEM relationship between he Supplier and
\nthe Purchaser).<\/p>\n
5.04 ADAPTATION OF DOCUMENTATION AND PROMOTION LITERATURE. The
\nPurchaser may translate into languages other than the English language such
\nof the Suppliers user manuals, product descriptions and specifications,
\ntechnical manuals, license agreements and other printed information relating
\nto the Products as shall be determined to be appropriate by the Purchaser.
\nThe Purchaser shall own all rights in all such translated adaptations to
\npromotional materials, including, without limitation, rights to all local
\nlanguage translations of the Supplier’s user manuals, product descriptions
\nand specifications, technical manuals, license agreements and other printed
\ninformation relating to the Products. In connection therewith, the Purchaser
\nshall take appropriate action to secure copyrights with respect to all such
\ntranslated adaptations. The Supplier will review any translated materials for
\ncorrectness if so requested by the Purchaser but will not be bound by any
\ndocuments not printed by Supplier. The Supplier shall execute any and all
\ndocuments and\/or instruments deemed by the Purchaser to be necessary or
\nappropriate to effect the assignments hereinabove described.<\/p>\n
5.05 TECHNICAL AND SALES TRAINING. <\/p>\n
(a) TRAINING SERVICES. During the term of this Agreement,
\nSupplier shall, at [***] expense, provide Purchaser at such location as
\ndesignated by Purchaser, with one day of training for the Purchaser Sales Force,
\none day of training for Purchaser Field Sales Engineers and one day of training
\nper Product of engineering level training for Purchaser’s employees engaged in
\ntier two technical support of the Products, to be conducted one day each at
\nPurchaser’s premises in [***] or another location if agreed upon between the
\nParties.<\/p>\n
Sales training will cover the [***] market, competition and product
\nfeatures and benefits. The other training modules shall cover in detail, the
\ninstallation, configuration, operation, trouble shooting, adjustment, test and
\nmaintenance of the product.<\/p>\n
(b) TRAINING MATERIALS. During the term of this
\nAgreement, Supplier shall, at [***] expense, provide Purchaser with all
\nmaterials utilized to provide training in connection with the Product(s),
\nmaterials as they become available. Such training shall include, but is not
\nlimited to, Purchaser sales, Purchaser Field Sales Engineers, and Technical
\nSupport courses. Training materials shall include, but are not limited to,
\ninstructor guides, overheads, student workbooks, and manual\/guides. Purchaser
\nshall have the right to reproduce and distribute copies of all training
\nmaterials, related documents and recordings under Purchaser’s name to trainees
\nin training courses offered by Purchaser. All training material shall be
\nprovided electronically.<\/p>\n
-7-<\/p>\n
(c) The Supplier shall provide electronic mail access or
\naccess to a private web account for software updates and bulletins, which
\ninclude known problems, work arounds, expected fixes and matters of a similar
\nnature.<\/p>\n
(d) In connection with the technical and sales training
\nand assistance described in this Section 5.05, the cost and expense of the
\nPurchaser’s personnel in attending same shall be borne by the [***].<\/p>\n
5.06 TECHNICAL SUPPORT. During the term of this Agreement, the
\nSupplier shall provide technical support as set forth in Exhibit 5.<\/p>\n
ARTICLE VI<\/p>\n
WARRANTIES<\/p>\n
6.01 PRODUCT WARRANTIES. The Supplier warrants that each Product
\nwill be free from defects in design, materials and workmanship and will
\nperform in conformance with the Applicable Specifications and Documentation
\nwith respect to such Product, including the customization requirements set
\nforth in Exhibit 6. The period of warranty shall be [***] from the date of
\ndelivery of such Product to the Purchaser. Software is warranted for [***]
\nfrom date of delivery, except for the software bug fixes which should be
\nwarranted to [***].<\/p>\n
(a) During the warranty period set forth in this Section
\n6.01, the Purchaser’s [***] remedy in the event of such defect or failure to
\nperform is [***] limited to the correction of the defect or failure by repair,
\nrefurbishment or replacement, at the Supplier’s sole option and expense. During
\nthe warranty period, change orders and maintenance revision upgrades will be
\nprovided upon request and as may be needed for proper operation of Products. The
\nSupplier reserves the right, in connection with the replacement of returned
\nProducts or the repair of Products returned for repair, to use parts and
\ncomponents (including refurbished parts and components) that are like new or
\nequivalent in performance to the original part or component. Replaced products,
\nparts or components shall become the property of the Supplier.<\/p>\n
(b) Claims by the Purchaser with respect to Defective
\nProducts shall be made as follows: (i) claims shall be made in accordance with
\nthe Return Material Authorization procedure of the Supplier set forth in Exhibit
\n7 as same may be amended from time to time on at least [***] notice to the
\nPurchaser.<\/p>\n
(c) Notwithstanding the foregoing, the Supplier shall
\nhave no liability pursuant to Section 6.01 with respect to defects arising in
\nProducts through: (i) normal wear and tear or obsolescence, (ii) causes external
\nto the Products (such as, for example, unusual physical stress, power failure or
\nunusual environmental conditions), and (iii) any cause other than ordinary use
\n(such as, for example, accident, fire, lightning, water damage, neglect, misuse,
\nimproper installation or testing, or unauthorized attempts to repair, alter or
\nmodify).<\/p>\n
-8-<\/p>\n
6.02 PROPRIETARY RIGHTS WARRANTIES. The Supplier warrants that,
\nto the best of its knowledge, it has all right, title, ownership interest
\nand\/or marketing rights necessary to provide the Products to the Purchaser,
\nand the Products and their sale and use hereunder do not infringe upon any
\ncopyright, patent, trademark, trade secret or other proprietary or
\nintellectual property right of any third party.<\/p>\n
6.03 PROPRIETARY RIGHTS INDEMNIFICATION. The Supplier agrees to
\nindemnify and hold the Purchaser harmless from and against any and all
\nactions, claims, losses and damages (including reasonable attorneys’ fees and
\ncourt costs) arising out of or in connection with any breach or alleged
\nbreach of the warranties set forth in Section 6.02, provided that the
\nSupplier is notified promptly in writing thereof and is given complete
\nauthority and information required for the defense thereof. The Purchaser
\nshall have the right to participate in the defense of any such suit or
\nproceeding at the Purchaser’s expense and through counsel of its choosing. In
\nthe event that an injunction is sought or obtained against the use of a
\nProduct, the Supplier shall, within [***] of its receipt of notice thereof,
\nat [***] option and expense: (i) procure for the Purchaser and its Customers
\nthe right to continue to use the infringing Product as set forth in this
\nAgreement, or (ii) replace the Product with a non-infringing alternative, or
\n(iii) modify the infringing Product to make its use non-infringing. The
\nSupplier shall have no liability under Section 6.02 or under this Section
\n6.03 for any infringement based on the use of any Product (including, without
\nlimitation, software), if the Product (or software) is used in a manner or
\nwith equipment for which it was not reasonably intended, or if the Product
\n(or software) is used in an infringing process.<\/p>\n
6.04 DISCLAIMER OF WARRANTIES. THE WARRANTIES SET FORTH IN THIS
\nARTICLE VI ARE THE ONLY WARRANTIES MADE BY THE SUPPLIER PURSUANT TO THIS
\nAGREEMENT. EXCEPT FOR SUCH WARRANTIES, THE SUPPLIER MAKES, AND THE PURCHASER,
\nITS CUSTOMERS AND END USERS OF PRODUCTS RECEIVE, NO OTHER WARRANTY, EXPRESS
\nOR IMPLIED, AND THE SUPPLIER EXPRESSLY DISCLAIMS AND EXCLUDES ALL OTHER
\nWARRANTIES. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING,
\nWITHOUT LIMITATION, STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR
\nPERFORMANCE OF THE PRODUCTS PROVIDED HEREUNDER, WHETHER MADE BY THE
\nSUPPLIER’S EMPLOYEES OR OTHERWISE, WHICH IS NOT CONTAINED IN THIS AGREEMENT,
\nSHALL BE DEEMED TO BE A WARRANTY BY THE SUPPLIER FOR ANY PURPOSE, OR GIVE
\nRISE TO ANY LIABILITY OF THE SUPPLIER WHATSOEVER.<\/p>\n
ARTICLE VII<\/p>\n
TERMINATION<\/p>\n
7.01 TERMINATION. Either party may terminate this Agreement,
\nwith or without cause, upon giving the other party at least [***] prior
\nwritten notice. In case of termination by Supplier, Purchaser may in the [***]
\n notice period place a non-cancelable last-time-buy order for such Products
\nat [***].<\/p>\n
-9-<\/p>\n
In the event that either party materially defaults in the performance
\nof any of its duties or obligations set forth herein this Agreement, and such
\ndefault is not substantially cured within [***] after written notice is given to
\nthe defaulting party specifying the default in reasonable detail, then the party
\nnot in default may, by giving written notice thereof to the defaulting party,
\nterminate this Agreement or the applicable Purchase Order relating to such
\ndefault as of the date specified in such notice of termination.<\/p>\n
7.02 TERMINATION FOR INSOLVENCY OR BANKRUPTCY. Either party may
\nimmediately terminate this Agreement and any Purchase Order by giving written
\nnotice to the other party in the event of any of the following: (i) the
\nliquidation or insolvency of the other party; (ii) the appointment of a
\nreceiver or similar officer for the other party; (iii) an assignment by the
\nother party for the benefit of all or substantially all of its creditors;
\n(iv) the entry by the other party into an agreement for the composition; (v)
\nextension or readjustment of all or substantially all of its obligations; or
\n(vi) the filing of a meritorious petition in bankruptcy by or against the
\nother party under any bankruptcy or debtors’ law for its relief or
\nreorganization.<\/p>\n
7.03 RIGHTS UPON TERMINATION. The termination of this Agreement
\nor any Purchase Order shall not affect the Supplier’s right to be paid for
\nProducts previously shipped. The termination of this Agreement shall not
\naffect any of the Supplier’s warranties, indemnifications or obligations
\nrelating to returns, credits or any other matters set forth in this Agreement
\nthat by their nature are to survive termination in order to carry out their
\nintended purpose, all of which shall survive the termination of this
\nAgreement. The termination of this Agreement shall not affect the obligations
\nof either party to the other party pursuant to any Purchase Order previously
\naccepted and confirmed by the Supplier.<\/p>\n
7.04 RETURN OF MATERIALS. In the event of the termination of
\nthis Agreement, the Purchaser shall promptly return to the Supplier all sales
\nmaterials, specifications, drawings and other technical documents (including
\nall copies thereof received from the Supplier under this Agreement as
\ndirected by the Supplier. The provisions of Section 7.04 shall survive the
\ntermination of this Agreement.<\/p>\n
7.05 NO LIABILITY. Upon the termination of this Agreement, the
\nSupplier shall not be liable or obligated to the Purchaser with respect to
\nany payments, future profits, exemplary, special or consequential damages,
\nindemnification or other compensation regarding such termination,
\nirrespective of whether such obligations or liabilities may be contemplated
\nby the law(s) of the governments of any jurisdiction in which Products of the
\nSupplier are sold or marketed by the Purchaser, and the Purchaser hereby
\nwaives and relinquishes any rights, pursuant to law or otherwise, to any such
\npayments, indemnifications or compensation.<\/p>\n
ARTICLE VIII<\/p>\n
MISCELLANEOUS<\/p>\n
8.01 LIMITATION OF LIABILITY. THE SUPPLIER SHALL HAVE NO
\nLIABILITY FOR ANY LOSS OF PROFIT OR OTHER COMMERCIAL DAMAGE, INCLUDING,
\nWITHOUT <\/p>\n
-10-<\/p>\n
LIMITATION: INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES
\nOF ANY KIND; LOSS OF, OR DAMAGE TO, THE PURCHASER’S OR ANY END USER’S RECORDS
\nOR DATA; THIRD PARTY CLAIMS AGAINST THE PURCHASER; OR LOSS OF REVENUE, LOSS
\nOF BUSINESS OR OTHER FINANCIAL LOSS ARISING OUT OF OR IN CONNECTION WITH ANY
\nPRODUCTS SOLD OR LICENSED BY THE SUPPLIER TO THE PURCHASER OR TO ANY END USER
\nOF PRODUCTS, EVEN IF THE SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
\nDAMAGES.<\/p>\n
8.02 ENTIRE AGREEMENT. This Agreement contains the entire
\nunderstanding of the parties relating to the subject matter contained herein
\nand supersedes all prior agreements and understandings, written or oral,
\nrelating to the subject matter hereof. This Agreement shall not be modified,
\namended or terminated except in a writing signed by both parties.<\/p>\n
8.03 RELATIONSHIP OF PARTIES. The relationship of the parties
\nunder this Agreement shall be, and at all times remain, that of independent
\ncontractors, and the Purchaser is neither an employee nor an agent of the
\nSupplier nor is the Purchaser authorized to represent itself, directly or by
\nimplication, as such.<\/p>\n
8.04 CONFIDENTIALITY. Each party acknowledges that in the course
\nof performance of its obligations pursuant to this Agreement, it may obtain
\ncertain Confidential Information (as defined herein in Section 8.04(a)) of
\nthe other party. Each party hereby agrees that all Confidential Information
\ncommunicated to it by the other party, its subsidiaries or Customers, whether
\nbefore or after the Effective Date, shall be and was received in strict
\nconfidence, shall be used only for purposes of this Agreement, and shall not
\nbe disclosed without the prior written consent of the other party.<\/p>\n
(a) As used herein this Agreement, the term “CONFIDENTIAL
\nINFORMATION” refers to all information proprietary to a party and not generally
\nknown in the industry that is disclosed to or learned by the recipient party in
\nconnection with this Agreement and clearly marked or identified as confidential
\nor proprietary, whether or not reduced to writing, including, without
\nlimitation: (a) information not generally known in the industry which relates to
\nthe business, products or work of a party: (x) of a technical nature, such as
\ntrade secrets, methods, know-how, formulas, compositions, designs, processes,
\ninformation regarding product development and other similar information and
\nmaterials, and (y) of a business or commercial nature, such as information or
\ncompilation of data about costs, pricing, profits, compensation, sales, product
\nplans, markets, marketing plans and strategies, equipment and operational
\nrequirements, operating policies or plans, finances, financial records, methods
\nof operation and competition, management organization, customers and suppliers,
\nand other similar information and materials of a party; and (b) any other
\ntechnical business or commercial information designated as confidential or
\nproprietary that a party may receive belonging to any supplier, customer or
\nothers who do business with a party. The foregoing limitations on use and
\ndisclosure shall not apply to information that: (i) was lawfully known to the
\nreceiving party before its receipt thereof; (ii) is learned by the receiving
\nparty from a third party entitled to disclose same; (iii) becomes publicly known
\nother than through the actions of the receiving party, or (iv) is required by
\nlaw or court order to be disclosed by the receiving party.<\/p>\n
-11-<\/p>\n
(b) Upon the termination of this Agreement, each party
\nthat has received Confidential Information shall immediately surrender to the
\nother party all Confidential Information in a receiving party’s possession of or
\nrelating to the other party, or in the possession of any person or entity under
\nthe receiving party’s control, including all copies thereof, relating directly
\nor indirectly to any Confidential Information of the other party, or otherwise
\nrelating directly or indirectly to the business of the other party. All
\nConfidential Information obtained by either party shall remain confidential for
\na period of [***] after the termination of this Agreement.<\/p>\n
(c) The provisions of this Section 8.04 shall survive the
\ntermination of this Agreement.<\/p>\n
(d) The parties will agree in advance to the content and
\ntiming of any Press Releases and SEC filings and also to the existence of this
\ncontract.<\/p>\n
8.05 SURVIVAL OF MAINTENANCE OBLIGATIONS. The Supplier warrants
\nfor a period of [***] after the expiration of the Agreement to provide
\nPurchaser with new software updates\/versions.<\/p>\n
8.06 Notices. Any notice, request, instruction or other document
\nto be given under this Agreement by a party hereto to the other party shall
\nbe in writing and shall be deemed to have been duly given on the date of
\nservice if delivered personally, or on the third day after mailing if sent by
\ncertified mail, postage prepaid, at the addresses set forth below, or to such
\nother address or person as a party may designate by written notice to the
\nother:<\/p>\n
IN THE CASE OF THE SUPPLIER: IN THE CASE OF THE PURCHASER:
\n Foundry Networks, Inc. UTStarcom, Inc.
\n 2100 Gold Street 1275 Harbor Bay Parkway
\n San Jose, CA 95164, USA Alameda, CA 94502, USA
\n Attn.: OEM Contract Administration Attn.: Russell Boltwood
\n Corporate Counsel<\/p>\n
8.07 FORCE MAJEURE. The term “Force Majeure” shall be defined to
\ninclude fires or other casualties or accidents, acts of God, fire, flood,
\ntyphoon, peril or accident on the sea, other severe weather conditions,
\nstrikes or other labor disputes (whether lawful or not), war, revolution, not
\nor other violence, lack of energy, or any other law, order, proclamation,
\nregulation, ordinance, demand or requirement of any governmental agency, or
\nany other cause beyond the control of a party.<\/p>\n
(a) A party whose performance is prevented, restricted or
\ninterfered with by reason of a Force Majeure condition shall be excused from
\nsuch performance to the extent of such Force Majeure condition so long as such
\nparty provides the other party with prompt written notice describing the Force
\nMajeure condition and the causes of nonperformance and immediately continues
\nperformance whenever and to the extent such conditions and causes of
\nnonperformance cease to exist. Without limitation, obligations with respect to
\nthe payment of monies or other consideration shall not be excused due to the
\noccurrence of a Force Majeure condition.<\/p>\n
-12-<\/p>\n
(b) If, due to a Force Majeure condition, the scheduled time
\nof delivery or performance is or will be delayed for more than [***] after the
\nscheduled date thereof, the party not relying upon the Force Majeure condition
\nmay terminate, without liability to the other party, any Purchase Order or
\nportion thereof covering the Products for which delivery has been delayed by the
\noccurrence of the Force Majeure condition.<\/p>\n
8.08 GOVERNING LAW. This Agreement shall be governed by and
\nconstrued in accordance with the laws, other than choice of law rules, of the
\nState of California and the parties hereby consent to the exclusive
\njurisdiction of the courts of the State of California.<\/p>\n
8.09 BINDING EFFECT. This Agreement shall be binding on, and
\ninure to the benefit of the parties hereto and their respective
\nrepresentatives, successors and permitted assigns, but neither this Agreement
\nnor any of the rights, interests or obligations hereunder shall be assigned
\nby either of the parties hereto, whether by operation of law or otherwise,
\nwithout the prior written consent of the other party.<\/p>\n
8.10 EXHIBITS. All exhibits attached hereto are incorporated
\nherein by reference.<\/p>\n
8.11 SEVERABILITY. In the event that any provision contained
\nherein shall be held to be invalid, illegal or unenforceable for any reason,
\nsuch invalidity, illegality or unenforceability shall not affect any other
\nprovision hereof, and this Agreement shall be construed as if such invalid,
\nillegal or unenforceable provision had never been contained herein.<\/p>\n
8.12 HEADINGS. The headings of the sections and articles of this
\nAgreement are inserted for convenience only and shall not constitute a part
\nhereof nor affect in any way the meaning or interpretation of this Agreement.<\/p>\n
8.13 REMEDIES CUMULATIVE. Except as herein expressly provided,
\nthe remedies provided herein shall be cumulative and shall not preclude the
\nassertion by any party of any other rights or the seeking of any other
\nremedies against any other party, as the case may be.<\/p>\n
8.14 DELAYS OR OMISSIONS. No delay or omission to exercise any
\nright, power or remedy accruing upon any breach or default under this
\nAgreement shall impair any such right, power or remedy nor shall it be
\nconstrued to be a waiver of any such breach or default, or an acquiescence
\ntherein, or in any similar breach or default thereafter occurring, nor shall
\nany waiver of any single breach or default be deemed a waiver of any other
\nbreach or default theretofore or thereafter occurring. Any waiver, permit,
\nconsent or approval of any kind or character of any breach or default under
\nthis Agreement, or any waiver of any provisions or conditions of this
\nAgreement, shall be in writing and shall be effective only to the extent
\nspecifically set forth in such writing.<\/p>\n
8.15 SURVIVAL OF TERMS. Termination of this Agreement for any
\nreason shall not release either party from any liabilities or obligations set
\nforth in this Agreement which (i) the parties have expressly agreed shall
\nsurvive any such termination, or (ii) remain to be performed or by their
\nnature would be intended to be applicable following any such termination.<\/p>\n
-13-<\/p>\n
8.16 NONEXCLUSIVE MARKET AND PURCHASE RIGHTS. It is expressly
\nunderstood and agreed that this Agreement does not grant to the Supplier or
\nthe Purchaser an exclusive right to purchase or sell products and shall not
\nprevent either party from developing relationships with other vendors or
\ncustomers.<\/p>\n
8.17 SOFTWARE LICENSES. Whenever the Products described in this
\nAgreement shall include software, the Supplier hereby grants to the Purchaser
\na nonexclusive license to market, demonstrate and distribute through its
\nnormal channels of distribution such software, in object code only, to
\nCustomers of the Purchaser. The Purchaser agrees to comply with the
\nSupplier’s reasonable software license agreements, and agrees to use
\nreasonable efforts to protect the Supplier’s software, including using
\nreasonable efforts to avoid allowing Customers, individuals or employees: (i)
\nto make any unauthorized copies of the Supplier’s licensed software; (ii) to
\nmodify, disassemble or decompile any software; (iii) to remove, obscure or
\nalter any notice of patent, trademark, copyright or trade name; or (iv) to
\nauthorize any person to do anything that the Purchaser is prohibited from
\ndoing under this Agreement.<\/p>\n
(a) The Purchaser acknowledges that no title or ownership of
\nthe proprietary rights to any software is or will be transferred by virtue of
\nthis Agreement. The Supplier and its licensors retain all title to and, except
\nas expressly licensed herein, all rights to any software contained in the
\nProducts, all copies and derivative works thereof, related Documentation and
\nmaterials and all of their service marks, trademarks, trade names or any other
\ndesignations. Any invoices of the Supplier purporting to cover such items do not
\nconvey title to, or patent rights, copyrights or any other proprietary interest
\nin, such items to the Purchaser.<\/p>\n
(b) The Purchaser shall use reasonable efforts to protect the
\nSupplier’s rights under this section, but the Purchaser is not authorized and
\nshall not be required to instigate legal action on behalf of the Supplier or its
\nsuppliers against any third parties for infringement. The Purchaser shall notify
\nthe Supplier of any infringement of which it obtains actual knowledge.<\/p>\n
8.18 CHOICE OF LANGUAGE. The original of this Agreement has been
\nwritten in the English language, and the English language version of this
\nAgreement shall be considered controlling for all purposes.<\/p>\n
8.19 EXPORT CONTROL AND RELATED PROVISIONS. The Purchaser hereby
\nagrees that it shall not, directly or indirectly, re-export, resell or
\notherwise ship or transfer any of the Products, related Documentation, any
\ntechnology related thereto, any direct products of such technology, or any
\nproducts of which any of the Products is a component (collectively,
\n“CONTROLLED PRODUCTS”) in violation of any prohibitions of the Export
\nAdministration Regulations of the United States Department of Commerce, as
\namended from time to time (the “BXA REGULATIONS”), whether such prohibitions
\nare based on the type of product, the country of destination, the end-user or
\nend-use of the product or otherwise. The Purchaser shall obtain appropriate
\nlicenses, comply with applicable license exceptions and\/or obtain appropriate
\nwritten assurances from purchasers or importers as may be necessary for its
\nactivities with respect to the Controlled Products to comply with the BXA
\nRegulations. The Purchaser further agrees that it shall not, directly or
\nindirectly, export, re-export, resell or otherwise ship or transfer any
\nControlled Products to any countries listed as “embargoed <\/p>\n
-14-<\/p>\n
countries” in the Foreign Assets Control Regulations of the United States
\nDepartment of the Treasury, as amended from time to time (the “FOREIGN ASSETS
\nCONTROL REGULATIONS”), without compliance with the Foreign Assets Control
\nRegulations, including, without limitation, obtaining any required prior
\nwritten consent of the United States Office of Foreign Assets Control.<\/p>\n
(a) The Purchaser warrants that it has not been, and is not
\ncurrently, debarred or suspended from or otherwise prohibited or impaired from
\nexporting, re-exporting, receiving, purchasing, procuring or otherwise obtaining
\nany item, product, article, commodity or technical data regulated by any agency
\nof the government of the United States.<\/p>\n
(b) In all of its activities hereunder or otherwise with
\nrespect to Controlled Products, the Purchaser shall comply with (i) the
\nanti-boycott provisions of the BXA Regulations and of Section 999 of the United
\nStates Internal Revenue Code and any regulations promulgated thereunder, as
\namended from time to time (collectively, the “ANTI-BOYCOTT PROVISIONS”), and
\n(ii) the United States Foreign Corrupt Practices Act (the “FCPA”).<\/p>\n
(c) The Purchaser’s obligations to comply with the BXA
\nRegulations, Foreign Assets Control Regulations, Anti-boycott Provisions and
\nFCPA shall apply to the extent that (i) such laws, rules and regulations are
\napplicable to the Purchaser, or (ii) the Purchaser’s noncompliance would cause
\nthe Supplier to be in violation of such laws, rules or regulations.<\/p>\n
[SIGNATURE PAGE TO FOLLOW]<\/p>\n
-15-<\/p>\n
IN WITNESS WHEREOF, the parties have been caused this Agreement to be
\nsigned and delivered by its duly authorized officer or representative as of the
\nEffective Date.<\/p>\n
SUPPLIER: PURCHASER:<\/p>\n
Foundry Networks, Inc. UTStarcom, Inc.<\/p>\n
By: \/s\/ Signature Illegible By:
\n —————————-<\/p>\n
Title: VICE PRESIDENT [Illegible] Title:
\n Aug. 25, 2000 ————————-<\/p>\n
-16-<\/p>\n
EXHIBIT 1<\/p>\n
DESCRIPTION OF PRODUCTS AND
\n INTERNATIONAL PRICE LIST (IN U.S. DOLLARS)<\/p>\n
The following list prices were published by Supplier on [***] and shall
\nremain in effect for [***]<\/p>\n
\n\n——————————————————————————–
\n[GRAPHIC] FOUNDRY NETWORKS
\n
\n Int’l List
\n [***] Complete Description (in US $) Category
\n————- ————————————– ———— ————-
\n<\/c><\/c><\/c><\/s><\/caption>\n<\/table>\n[***]<\/p>\n
EXHIBIT 2<\/p>\n
TERRITORY<\/p>\n
Foundry Networks allows UTStarcom to sell Supplier’s products in the
\ncountries, regions and territories listed below. This list may be ammended by
\nmutual agreement of the parties.<\/p>\n
[***]<\/p>\n
EXHIBIT 3<\/p>\n
DISCOUNT SCHEDULE AND INITIAL FORCASTED VOLUMES<\/p>\n
Discount Schedule<\/p>\n
The following percentage discounts from Supplier’s List Prices will
\napply for Supplier’s Products shipped to Reseller during the [***] period
\nbeginning on the Effective date, and for each subsequent [***] period during the
\nTerm of the Agreement.<\/p>\n
a. A [***] discount will be applied for the first Purchase Order
\nregarding the TDS (Test and Demo System)<\/p>\n
b. With sufficent detailed forcast for initial [***] day period of this
\nagreement a [***] discount will be applied [***] subesquent Purchase Orders<\/p>\n
c. If no detailed forecast is provided or if forecast provided is below
\nminimum of [***] in net purchases for the first [***] of this agreement, an
\nalternative discount structure, as shown in Exhibit 3, Sec. (d) below, will be
\nsubstituted for [***] discounts offered in Exhibit 3, Sec.(a) above. Detailed
\nforecast is intended to be a [***] forecast as opposed to a [***] forecast.<\/p>\n
d. Alternative discount structure. If Purchaser attains the following
\nvolumes in invoices to Supplier within [***] of the Effective Date of this
\nagreement, the corresponding discounts will be applied.<\/p>\n
\n\n VOLUME DISCOUNT
\n —— ——–
\n
\n [***]
\n<\/c><\/s><\/caption>\n<\/table>\n e. Supplier and Purchaser will review the prices & discount regularly
\nto meet market and competitive requirements.<\/p>\n
f. Supplier will provide a discount not to exceed [***] under any and
\nall conditions for the [***] products only.<\/p>\n
Initial Forcasted Volumes<\/p>\n
Purchaser forecasts sales within the Territory for the [***] to be as
\nfollows:<\/p>\n
[***]<\/p>\n
EXHIBIT 4<\/p>\n
\n\n TIME SCHEDULE
\n
\n1. Submit Purchase Orders for TDS and Support System [***]<\/p>\n[***].<\/p>\n
2. Shipment of the TDS and Support System [***]<\/p>\n
3. Training for UTStarcom, Inc. Sales\/Support [***]<\/p>\n
4. Install TDS [***]<\/p>\n
<\/c><\/c><\/s><\/caption>\n<\/table>\n
EXHIBIT 5<\/p>\n
FOUNDRY NETWORKS SERVICE GUIDE<\/p>\n
INTRODUCTION<\/p>\n
This Exhibit outlines the service and support requirements for the
\nFoundry International Service and Support Program. Specifically, this document
\noutlines Partner requirements with respect to providing maintenance and support
\nservices including technical support, hardware replacement and software upgrades
\nto its End-Users. For purposes of this document, defined terms are set forth
\nbelow.<\/p>\n
DEFINITIONS<\/p>\n
“Partner” shall mean any party who purchases Foundry products for
\nresale or sublicense to End-Users. Partners to include but not be limited to:
\nSystems Integrators, VAR’s, OEM’s and Distributors.<\/p>\n
“End-User” shall mean any party who purchases Foundry products from
\nPartner for their own internal use and not for redistribution.<\/p>\n
“TAC” shall mean each party’s telephone technical support center that
\nprovides support in the configuration, operation and diagnosis of Foundry
\nProducts.<\/p>\n
“1st Level Support” shall mean Partner’s 24×7 telephone technical
\nsupport to directly assist End-Users in the configuration, operation and
\ndiagnosis of Foundry products.<\/p>\n
“2nd Level Support” shall mean the Partner’s second level of support
\nincluding the engineers in the Partners support organization certified on
\nFoundry products. These individuals will perform advanced troubleshooting and
\ndiagnosis of the End-User’s issues as well as on-site visits when necessary.<\/p>\n
“3rd Level Support” shall mean Foundry TAC Level 3 Engineering
\ndepartment which is staffed with individuals with many years of industry
\nexperience. These engineers are capable of the highest level of support. This
\ndepartment has direct access to Foundry Development Engineering and can solve
\nextremely difficult or unusual problems.<\/p>\n
COMMITMENTS AND DELIVERABLES<\/p>\n
The following table sets the agreed upon Foundry and Partner
\ncommitments for the Partners Service and Support Program.<\/p>\n
\n\n——————— ————————- ——————————
\nSupport Service Foundry Commitments Partner Commitments
\n——————— ————————- ——————————
\n <\/p>\n[***]<\/p>\n
<\/c><\/c><\/s><\/caption>\n<\/table>\n
-2-<\/p>\n
FOUNDRY TECHNICAL ASSISTANCE CENTER (TAC)<\/p>\n
The Foundry TAC is the focal point of Foundry support services. Network
\nSupport Engineers (NSEs), who possess detailed knowledge of the complete product
\nfamily and all aspects of [***] staff our global TAC located in San Jose,
\nCalifornia. In addition to the TAC personnel, Foundry also has field-based
\nNetwork Support Engineers and Systems Engineers available to assist with pre-
\nand post-sales issues.<\/p>\n
The TAC consists of three groups:<\/p>\n
TIER ONE SUPPORT GROUP<\/p>\n
The Tier One Support Group is the first point of contact into Foundry’s
\nTAC. These individuals take the first call, and ensure that the proper
\ninformation is entered into the Call Tracking System (“CTS”). In addition, the
\nFLS staff assists the Partner with simple configuration and problem resolution.<\/p>\n
TIER TWO SUPPORT GROUP<\/p>\n
Once a case has been entered into the CTS, a Foundry NSE handles the
\ncase. The NSEs are grouped according to product type and it is their job to work
\na case to closure or escalate to the Tier Three Support Group. This strong
\nteaming aspect within the TAC, and within the product groups, develops
\nadditional experience and leadership.<\/p>\n
The NSEs have access to labs with Foundry equipment, as well as
\nequipment from other vendors, to assist in recreating whatever problem the
\nPartner may be experiencing. In addition to the equipment in the labs, the
\nengineers have access to the most modern analysis tools.<\/p>\n
TIER THREE SUPPORT GROUP<\/p>\n
This team is the escalation point from the Tier Two Support Group to
\nensure that problems are solved in an expeditious time frame and Partner
\nsatisfaction is maintained.<\/p>\n
This is a group of senior Network Analysts. Program Managers and
\nDevelopment Engineers dedicated to working on the critical network problems.
\nThis organization is responsible for ensuring all available resources are
\napplied to the problem so that a resolution can be reached as quickly as
\npossible for all escalated cases.<\/p>\n
FIELD NETWORK SUPPORT ENGINEERING<\/p>\n
In the event that on-site support is required, Foundry has post-sales
\nfield resources available to assist Partners’ field resources in restoring an
\nEnd-User’s network to an operational state. These network engineering resources
\nare deployed by Foundry’s support management.<\/p>\n
4.1 TAC Process<\/p>\n
Partner and End-User work on case.
\n Case resolution requires participation by Foundry’s TAC.
\n Partner accesses the TAC via methods listed above. A case is
\n opened in Foundry’s Call Tracking System (CTS). The call is
\n assigned a customer case tracking number The Partner is
\n advised of the case tracking number for their query. A NSE is
\n assigned to the case and the priority set.
\n The NSE, working with the Partner, is responsible for the case
\n until it is closed.<\/p>\n
4.2 Accessing the TAC<\/p>\n
Foundry offers multiple access methods to reach the 24×7 TAC:<\/p>\n
7x24x365 telephone at + 1 xxxxxxxxxxxx
\n Email to SUPPORT@XXXXXXXXXXXX
\n Fax to+1 xxxxxxxxxxxx<\/p>\n
4.3 Site ID<\/p>\n
The site ID is a very important piece of the support model. All
\nPartners under a support services plan will have a site ID that must be used
\nwhen calling the TAC. This will ensure the following occurs.<\/p>\n
All information for a particular Partner is consistent in Foundry e’s
\n database. Partner will see cases that are opened to Partner’s site ID
\n on the TACtics Online system. Proper escalation and notification of
\n problems can occur to proper account management. Any network drawings
\n or site specific information are linked and available at time of call.
\n Partner receives the proper level of service.<\/p>\n
If the site ID is unknown, an email should be sent to support @
\nFoundry.com that provides detailed company information and the Foundry Service
\ngroup will provide the correct site ID.<\/p>\n
4.4 Case Priority Matrix<\/p>\n
Cases opened in the TAC are given a severity level agreed upon between
\nthe NSE and the Partner as follows:<\/p>\n
-2-<\/p>\n
\n\n——————- ——————————- ————————–
\nSEVERITY LEVEL PRODUCTION NETWORK COMMITMENT
\n——————- ——————————- ————————–
\n
\nCritical [***] [***]
\n——————- ——————————- ————————–<\/p>\nHigh [***] [***]
\n——————- ——————————- ————————–<\/p>\n
Medium [***] [***]
\n——————- ——————————- ————————–<\/p>\n
Low [***] [***]
\n——————- ——————————- ————————–
\n<\/c><\/c><\/s><\/caption>\n<\/table>\n
Based on the level of severity of the case (i.e., critical, high,
\nmedium, low), the appropriate NSE is assigned to the case.<\/p>\n
For problems of a critical and\/or high nature, automatic notifications
\nare sent out to notify appropriate Foundry management (both field and internal)
\nof problem severity and status.<\/p>\n
-3-<\/p>\n
HARDWARE SUPPORT<\/p>\n
The following describes hardware replacement via a Return Material
\nAuthorization (RMA). The process for submitting an RMA is described in Section
\n9.<\/p>\n
5.1 Advance Replacement<\/p>\n
Parts (serial number based) covered under this option will be shipped
\nout for advance replacement once the RMA is received and issued by the RMA
\ndepartment, Monday through Friday. The part can be shipped to either the Partner
\nor the End-User and this be will determined at time of the RMA. Foundry may, at
\n[***] option, issue a new or reconditioned, good-as-new part.<\/p>\n
It is the responsibility of the Partner to retrieve the defective part
\nand return the same to Foundry within [***] of the receipt of the replacement
\npart. Equipment not received by Foundry within [***] will be invoiced to the
\nPartner at then-current list price.<\/p>\n
5.2 Return Material Authorization (RMA) Process<\/p>\n
1 Partner calls TAC and establishes a Customer Case number.
\n 2 TAC will assist where necessary in initial fault
\n information.
\n 3 TAC\/Partner will determine what part needs to be replaced
\n and obtain serial number.
\n 4 Case is transferred to the RMA department.
\n 5 RMA department will check for hardware support option and
\n issue Partner an RMA number.<\/p>\n
Equipment returned without a valid RMA number will be rejected by
\nFoundry’s receiving department.<\/p>\n
5.3 Return of Defective Product<\/p>\n
Defective product must be returned to Foundry within [***] of receipt
\nof the advance replacement. Partner will be billed the full value of the product
\nif not returned within [***].<\/p>\n
The product must be properly packaged, WITH THE RMA NUMBER CLEARLY
\nMARKED ON THE OUTSIDE OF THE BOX, and shipped prepaid to the following address:<\/p>\n
Foundry, Inc.
\n Xxxxxxxxxx
\n xxxxxxxxxx
\n United States of America<\/p>\n
Equipment returned without a valid RMA number will be rejected by
\nFoundry’s receiving department.<\/p>\n
-4-<\/p>\n
Telephone: +1 xxxxxxxxxx<\/p>\n
Facsimile: +1 xxxxxxxxxxx<\/p>\n
Only the affected part needs to be returned.<\/p>\n
Foundry product repairs in process or en route prior to the inception
\nof this support plan shall be repaired according to the terms and conditions in
\nplace at the time the Foundry product was submitted for repair.<\/p>\n
Per customs regulations, Foundry is required to list fair market value
\n(i.e. what Partner originally paid for the product) on the commercial invoice
\nfor customs purposes only. Foundry cannot alter these prices. All duties and
\ntaxes are the sole responsibility of [***]. [***] is responsible for registering
\nthe defective product with their country prior to exporting in order to apply
\nfor duty drawback after the product is re-imported. If special verbiage or
\ndocumentation is required to facilitate entry of a Foundry product into a
\nparticular country, it is [***] responsibility to provide such verbiage or
\ndocumentation prior to the shipment of a Foundry product. Foundry reserves the
\nright to refuse special requests if it is felt to be in violation of standard
\ncustoms regulations.<\/p>\n
PRICING<\/p>\n
Foundry will provide support services [***] for the [***] period of
\nthis agreement. At the end of this [***] period, support services pricing will
\nbe jointly re-evaluated between UTStarcom and Foundry.<\/p>\n
The support services fee must be included as a separate item on all
\nPartner purchase orders. Orders that do not include support services fees will
\nbe rejected.<\/p>\n
\n\n————————————————— —————————
\nADDITIONAL FOUNDRY SERVICE PRICE AS SPECIFIED
\n————————————————— —————————
\n
\nOn-site assistance for non-Foundry problem: [***]
\n————————————————— —————————<\/p>\nAssistance with modem configuration or delay
\ncaused by improper modem configuration [***]
\ndelay maximum before charge is applied: [***]
\n————————————————— —————————
\n<\/c><\/s><\/caption>\n<\/table>\n
END-OF-LIFE SUPPORT<\/p>\n
Partner will be notified when Foundry announces end-of-life on a
\nproduct. At that time, Partner will be authorized to procure Foundry product for
\na last-buy to satisfy the requirements of their End-Users.<\/p>\n
-5-<\/p>\n
Foundry will support a particular product for a period of [***] after
\nannounced end-of-life. The support will only include critical bug fixes as well
\nas hardware (or functionally equivalent hardware) RMA support during this time
\nperiod.<\/p>\n
EXHIBIT 6<\/p>\n
CUSTOMIZATION<\/p>\n
Both parties should make sure that the product delivered with all
\nmodification is done no later than [***] after the signature date of this
\nagreement.<\/p>\n
The Supplier’s products will be modified to reflect purchaser’s
\nrequirements as listed below.<\/p>\n
CUSTOMIZED HARDWARE DELIVERABLES:<\/p>\n
The following is an overview of the customization requirement to be
\ndone by Supplier on every product and shipped to Purchaser:<\/p>\n
[***]<\/p>\n
CUSTOMIZED SOFTWARE DELIVERABLES:<\/p>\n
The following is an overview of the customization requirement to be
\ndone by Supplier on every software or management product and shipped to
\nPurchaser:<\/p>\n
[***]<\/p>\n
CUSTOMIZATION SCHEDULE:<\/p>\n
– Product Drawings (including Modules)<\/p>\n
Date: TBD Supplier will send Mechanical and label drawings to
\n Purchaser.<\/p>\n
Date: TBD Purchaser returns drawings to Supplier with [***] and
\n [***].<\/p>\n
– Product User Manual<\/p>\n
Date: TBD Send Supplier User Manual in Word\/ASCII format to
\n Purchaser.<\/p>\n
Date: TBD UTStarcom, Inc. returns finished UTStarcom, Inc. User
\n Manual with production specifications.<\/p>\n
-6-<\/p>\n
EXHIBIT 7<\/p>\n
RETURN MATERIAL AUTHORIZATION (RMA) PROCEDURES<\/p>\n
1. The Purchaser fills in a RMA problem form (see attachment
\nbelow) which describes the particular problem and the serial number of the
\nProduct. The form is faxed or e-mailed to the contact person (for RMA) at the
\nSupplier.<\/p>\n
2. The Supplier responds to the RMA request providing an RMA
\nnumber (based on need).<\/p>\n
3. The Product is shipped to the Supplier’s facility (San Jose,
\nCalifornia) with the RMA problem form so that the Supplier can quickly trace
\nout the related problem for each Product and test\/verify the problem.<\/p>\n
4. The Supplier uses an RMA form (see attachment below) as a
\ntravel form, which travels with the Product through the various entities in
\nthe production\/RMA\/QA loop for processing. Each party fills in additional
\ndetails until the form is cleared (all details are complete) and signed.<\/p>\n
5. The Product is fixed during its travel and is then shipped with
\nthe RMA form back to the Purchaser.<\/p>\n
\n\n PROBLEM REPORT FORM \/ UTSTARCOM, INC.-REPORT
\n <\/p>\n1. Problem Number: 2. Status: OPEN CLOSED
\n ——————————-<\/p>\n
3. RMA Requested: YES NO<\/p>\n
4. Serial#: 5. Date Sent:
\n ——————————————- ———————————–<\/p>\n
6. Sent By: 7. Received Date:
\n —————————————— —————————–<\/p>\n
Short Summary:
\n ——————————————————————————————————-<\/p>\n
—————————————————————————————————————————<\/p>\n
—————————————————————————————————————————<\/p>\n
Test Details
\nConfiguration:
\n ———————————————————————————————————<\/p>\n
—————————————————————————————————————————<\/p>\n
—————————————————————————————————————————<\/p>\n
—————————————————————————————————————————<\/p>\n
—————————————————————————————————————————<\/p>\n
—————————————————————————————————————————<\/p>\n
—————————————————————————————————————————<\/p>\n
—————————————————————————————————————————<\/p>\n
Foundry Contact Person:
\n ——————————-
\nRMA No: (Only if RMA) Date Promised:
\n ————————– —————————
\n ———————————–
\nResponsible Person Phone#:
\n ———————————————— ———————————–
\nResults:
\n —————————————————————————————————————–<\/p>\n
—————————————————————————————————————————<\/p>\n
—————————————————————————————————————————
\n<\/c><\/c><\/s><\/caption>\n<\/table>\n
\n\n FOUNDRY NETWORKS<\/p>\n RMA REPORT FORM – UTSTARCOM, INC.<\/p>\n
\nRMA#: SERIAL#:
\n —————————— —————————-
\nReason specified by Customer:
\n —————————————————
\nReceived Date: Due Date:
\n ——————— —————-
\nVERIFICATION DETAILS: Verified on: By:
\n —————- ————–<\/p>\nResult: NPF VERIFIED OTHER Type: PRODUCTION COMPONENT DESIGN<\/p>\n
Verification Method:
\n ————————————————————
\nCAUSE IDENTIFICATION: Problem Identified on: By:
\n ———————— ——
\nCause:
\n ————————————————————————–<\/p>\n
RESOLUTION DETAILS: Resolution Provided on: By:
\n —————– ———–
\nMethod:
\n ————————————————————————-<\/p>\n
Final Test: PASS FAIL (Perform Validation Test + Standard Test) Date:
\n ———-
\nPREVENTION PROCEDURE: Advised on: By:
\n ——————– ——————
\nMethod:
\n ————————————————————————-<\/p>\n
LABELING INFORMATION: Signed on: By:
\n ———————- ——————–
\nMain Board Ser#: Ver: Management Assembly Ser#: Ver:
\n ——- —– ——– —–
\nReturn Date: By:
\n ——————– ————————-<\/p>\n
——————————————————————————–
\nVP OPERATIONS RM PROGRAM MANAGER<\/p>\n
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