\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……………………………………………………………………………….11<\/p>\n
8.01 Limitation of Liability………………………………………………………………….11
\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……………………………………………………………………….14
\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 Zaffire Service Guide
\nExhibit 6 Customization
\nExhibit 7 Return Material Authorization Procedure
\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 the
\ndate set forth on the cover page hereof (the Effective Date”), between Zaffire,
\nInc. (the “Supplier”), and UTStarcom, Inc. a Delaware corporation and on behalf
\nof its subsidiaries (the “Purchaser”).<\/p>\n
The Supplier develops, manufactures, produces and\/or supplies wide area
\noptical internetworking devices and products and desires to grant to the
\nPurchaser the right to sell and market certain of such products, and combine
\nsame with other products manufactured, produced or supplied by the Supplier, all
\nupon the terms and conditions set forth in this Agreement. The Purchaser
\ndevelops, manufactures and\/or sells and distributes networking products and
\nservices and desires to have the right to sell and market the Supplies products
\nupon the terms and conditions in this Agreement within [***].<\/p>\n
NOW THEREFORE, in consideration of the mutual covenants and agreements
\ncontained herein, and other good and valuable consideration, the receipt and
\nsufficiency of which are hereby acknowledged, the parties hereto agree as
\nfollows:<\/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 set
\nforth in Exhibit 1 in accordance with the terms and conditions set forth herein.<\/p>\n
1.02 TERM OF AGREEMENT. The term of this Agreement shall commence on
\nthe Effective Date and shall remain in full force and effect until terminated by
\neither party as set forth herein.<\/p>\n
1.03 DEFINITIONS. As used in this Agreement, the following terms shall
\nhave the meanings indicated, unless the context clearly indicates otherwise:<\/p>\n
(a) “APPLICABLE SPECIFICATIONS” means the functional
\nperformance, operational and compatibility characteristics of a Product agreed
\nupon in writing by the parties or, by mutual agreement of the parties, as
\ndescribed in applicable Documentation.<\/p>\n
(b) “CUSTOMERS” means distributors, dealers, resellers,
\nvalue-added resellers, system integrators and other similar customers of the
\nPurchaser, including End Users.<\/p>\n
(c) References to “dollars” and “$” refer to United States
\ncurrency.<\/p>\n
(d) “DOCUMENTATION” means user manuals, training materials,
\nproduct descriptions 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
(e) “END USERS” means final retail purchasers or licenses who
\nacquire Products for their own use and not for resale, re-marketing or
\nredistribution.<\/p>\n
(f) “PRODUCTS” means, individually or collectively as
\nappropriate, the hardware, licensed software, Documentation, supplies,
\naccessories and other commodities related to any of the foregoing as set forth
\nin Exhibit 1 and customized in accordance with the requirements set forth in
\nExhibit 6 and which are to be provided by the Supplier pursuant to this
\nAgreement.<\/p>\n
(g) “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
(h) “PURCHASER TRADEMARKS” means any existing or future
\ntrademarks that are registered by the Purchaser in the US or other countries.<\/p>\n
(i) “SERVICES” means any warranty, maintenance, advertising,
\nmarketing or technical support and training and any other services performed or
\nto be performed by the Supplier.<\/p>\n
ARTICLE II<\/p>\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 Orders
\nbased on the prices listed in Exhibit 2 identifying the Products that the
\nPurchaser desires to purchase from the Supplier.<\/p>\n
(i) Each Purchase Order for Products shall be signed by
\nan authorized representative of the Purchaser, and shall clearly state the
\nfollowing: the Purchase Order number, the purchase order date, a description of
\nthe Product(s) ordered, the Purchaser’s Product number, the number of units of
\nProduct ordered, the agreed cost per unit, the total price for the Purchase
\nOrder, the delivery date(s) requested for each Product included in the Purchase
\nOrder (which delivery dates may not be later than [***] after the date on which
\nthe Purchase Order is submitted by the Purchaser), the address to which the
\nProducts described in the Purchase Order are to be shipped, and the address to
\nwhich the Products described in the Purchase Order are to be invoiced.<\/p>\n
(ii) 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 <\/p>\n
-2-<\/p>\n
transferred to the Supplier. Terms and conditions on Purchase Orders which
\ndiffer from those contained in this Agreement shall not be valid unless
\nspecifically agreed in writing by an authorized representative of the Supplier.<\/p>\n
(b) All Purchase Orders shall be transmitted to the address set
\nforth in Section 8.06.<\/p>\n
(c) A Purchase Order shall be deemed accepted by the Supplier
\nonly after a written confirmation thereof has been issued by the Supplier and
\ndelivered to the Purchaser. The Supplier shall issue such written confirmation
\nwithin [***] after receipt of the Purchase Order. If such confirmation has not
\nbeen issued within the [***] period, the Purchase Order shall be deemed to be
\naccepted by the Supplier. Without limiting the generality of the foregoing, the
\nSupplier may reject any Purchase Order that fails to contain any of the
\ninformation required to be set forth by Section 2.01(a)(i). In the event of a
\nconflict between the provisions of this Agreement and the terms and conditions
\nof a Purchase Order or the Supplies confirmation or other written
\ncommunications, the provisions of this Agreement shall prevail and be
\ncontrolling.<\/p>\n
(d) Upon the termination of this Agreement, the Supplier agrees
\nto accept Purchase Orders from the Purchaser for additional Products which, at
\nthe time of such termination, the Purchaser is contractually obligated to
\nfurnish to its Customers and does not have in its inventory, provided that the
\nPurchaser notifies the Supplier of all such obligations in writing within [***]
\nof such date of termination.<\/p>\n
(e) This Agreement shall not obligate the Purchaser to purchase
\nany Products or Services, except as specifically set forth in a written Purchase
\nOrder from the Purchaser or as otherwise set forth herein.<\/p>\n
2.02 INVOICES. For each shipment of Products to the Purchaser, the
\nSupplier shall transmit to the Purchaser an invoice which sets forth the
\nPurchases Purchase Order number, the Products shipped, the Supplier’s and the
\nPurchaser’s Product number and the price therefore.<\/p>\n
2.03 ROLLING [***] FORECAST. No later than [***] after the end of each
\n[***], the Purchaser shall deliver to the Supplier an updated, non-binding,
\nforward-looking rolling unit order forecast (each, a “Rolling [***] Forecast”)
\nfor each Product for the subsequent [***] period, to enable the Supplier to plan
\nproduction to meet the lead times anticipated. The Rolling [***] Forecast is not
\nan order or a commitment by the Purchaser to purchase Products. Rolling [***]
\nForecasts shall be transmitted to the Supplier via electronic mail or by such
\nother means as may be agreed between the Supplier and the Purchaser. Exhibit 3
\nsets forth the initial forecasted volumes.<\/p>\n
2.04 PURCHASE ORDER MODIFICATIONS OR CANCELLATIONS.<\/p>\n
(a) Prior to shipment of Products, the Supplier shall accept a
\nmodification to a Purchase Order in order to: (i) change a location for
\ndelivery, (ii) change dates for delivery of Products provided that said new
\ndelivery dates remain within the Suppliers fiscal quarter of the original
\nshipment date, or (iii) correct typographical or clerical errors; provided,
\nhowever that <\/p>\n
-3-<\/p>\n
notices of modification must be received by the Supplier at least
\n[***] prior to the original shipment date.<\/p>\n
(b) The Purchaser will confirm [***] before end of [***] the
\nforecasting of the following [***] by PO for delivery of orders consistent with
\nthe Suppliers then current lead times. In the case that the PO quantity is less
\nthan the forecasting quantity, the over-forecasted quantity will be shifted to
\nthe [***] following. In the case that the PO is larger than the forecasted
\nquantity, Zaffire will make reasonable efforts to satisfy the demand for
\nnon-forecasted units.<\/p>\n
2.05 CUSTOMIZATION REQUIREMENTS. In accordance with the time schedule
\nin Exhibit 4, the Supplier will modify the Products to fulfill the customization
\nrequirements in Exhibit 6. Due to the TBD” in Exhibit 4 and Exhibit 6, both
\nparties shall mutually agree upon the customization to be done and both parties
\nshall use reasonable efforts to complete such customization no later than [***]
\nafter the signing of this agreement.<\/p>\n
2.06 HARDWARE AND SOFTWARE ENHANCEMENTS. Should the Supplier change,
\nimprove or add any enhancements to a Product at any time during the term of this
\nAgreement, the Supplier shall provide at least [***] notice to the Purchaser of
\nsame prior to the implementation thereof. The Supplier will make available to
\nthe Purchaser each new version of software made available by the Supplier from
\ntime to time to its customers generally. With respect to modifications in
\nsoftware and the rendition of other services that may be requested of the
\nSupplier by the Purchaser, the provision of same shall be as mutually agreed by
\nthe parties, and without limiting the generality of the foregoing, the Supplier
\nmay charge for such modifications or other services at [***]. Modifications to
\nsoftware and changes in product features which are not part of the Suppliers
\nstandard releases are not part of this Agreement, except to the extent set forth
\nin Exhibit 6 and as the Supplier may otherwise agree in writing. At the request
\nof the Purchaser and upon the agreement of the Supplier, such modifications or
\nother services may be provided at a pre-determined price.<\/p>\n
2.07 COST REDUCTION PROGRAM. The Parties agree to cooperate to ensure
\nthat the Supplier’s manufacturing of the Products at any time is performed in
\nthe most cost efficient way hereunder on [***] basis to evaluate the possibility
\nof conducting a cost reduction program. The parties agree that all cost
\nreductions should be to the benefit of both Parties and as such reflected in the
\nprices for the Products.<\/p>\n
2.08 INITIAL ORDER. The Purchaser will place an initial order for [***]
\nto be used as a Test\/Demonstration System (“TDS”) in accordance with the time
\nschedule 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
-4-<\/p>\n
3.02 ACCEPTANCE OF PRODUCTS. Acceptance of the TDS by Purchaser will be
\nbased upon mutually agreed tests and success criteria. Each Product shipment
\nthereafter will be deemed accepted by Purchaser upon delivery to the [***].<\/p>\n
3.03 DEFECTIVE PRODUCTS. In the event that any Products are received by
\nthe Purchaser in a defective condition or not in accordance with the Applicable
\nSpecifications, including the Purchaser’s customization requirements therefor or
\nthe Documentation relating to such Products (collectively, “Defective
\nProducts”), the Purchaser may return such Defective Products to the Supplier in
\nthe manner set forth in Section 6.01(b). The Purchaser shall have the right to
\nreturn any such Defective Products within [***] after delivery and in accordance
\nwith any applicable warranty with respect thereto.<\/p>\n
ARTICLE IV<\/p>\n
PRICES; PAYMENT TO THE SUPPLIER<\/p>\n
4.01 PRICES FOR PRODUCTS. The price for each Product purchased by the
\nPurchaser pursuant hereto shall be with the agreed discount on the Suppliers
\nlist price for such Product, as set forth in Exhibit 2.<\/p>\n
(a) The prices set forth in Exhibit 2 are based on the
\nforecasted volumes of Exhibit 3. The Parties will on [***] basis negotiate the
\nprices based on the previous actual volume purchased and the expectations for
\nthe coming [***]. Furthermore, the Parties agree to reevaluate prices if
\nsignificant changes in market conditions occur, and as Supplier’s cost of
\nmanufacturing permits.<\/p>\n
4.02 PAYMENT. The Supplier shall invoice the Purchaser no earlier than
\nthe applicable shipping date for the Products covered by such invoice.<\/p>\n
(a) The Purchaser shall submit to Supplier payment for any
\nPurchase Order: (i) within [***] of the date of shipment of the Products on such
\nPurchase Order paid by [***]; or (ii) within [***] of shipment of the Products
\non such Purchase Order, with a [***] discount.<\/p>\n
(b) Invoices that are unpaid at their due date, shall bear
\ninterest at a rate of [***] or the maximum rate allowed by law, whichever is
\nless, until paid by Purchaser.<\/p>\n
(c) If deliveries are made in installments, the invoice with
\nrespect to each shipment shall be paid when due without regard to the other
\nscheduled deliveries.<\/p>\n
4.03 TAXES. All payments to the Supplier hereunder shall be made free
\nand clear of and without reduction by reason of any taxes, levies, costs or
\ncharges whatsoever imposed, assessed, levied or collected by any government,
\npolitical subdivision, jurisdiction or taxing authority, all of which shall be
\nfor the account of the Purchaser and paid when due by the Purchaser, unless the
\nPurchaser shall have provided the Supplier with a valid resale exemption
\ncertificate with respect <\/p>\n
-5-<\/p>\n
thereto. Notwithstanding the foregoing, if, under any applicable law, the
\nPurchaser is required to withhold tax or any other amount from any payment to
\nthe Supplier, the amount due from the Purchaser to the Supplier shall be
\nincreased to the amount that the Supplier would have received if no withholding
\nhad been required.<\/p>\n
4.04 PLACE OF PAYMENT. The Purchaser shall pay all amounts due to the
\nSupplier into such account as the Supplier may designate in U.S. dollars.
\nPayment shall be deemed to have been made only upon receipt of full payment in
\nthe 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 to
\napply the Purchaser’s name or Purchaser Trademarks to the Products, as directed
\nby the Purchaser, for the sole purpose of supplying Products pursuant to this
\nAgreement. The Supplier shall acquire no right to the Purchaser Trademarks by
\nits use thereof, and may use the Purchaser Trademark for the duration of this
\nAgreement only to the extent specified herein. Any such use of Purchaser
\nTrademarks by the Supplier shall be to the Purchases benefit.<\/p>\n
(a) The Purchaser shall retain the sole and exclusive right, in
\nits discretion, to bring legal action for trademark infringement with respect to
\nany of the Purchaser Trademarks.<\/p>\n
(b) The Purchaser agrees to indemnify and hold the Supplier
\nharmless from and against an and all actions, claims, losses and damages
\n(including reasonable attorneys’ fees and court costs) arising out of or in
\nconnection with the use of any Purchaser Trademark by the Supplier pursuant to
\nthe terms of this Agreement.<\/p>\n
(c) The Purchaser agrees that it will not use any trade names
\nand trademarks of or licensed to the Supplier, all of which shall remain the
\nproperty of the Supplier. The Purchaser agrees not to contest any trade names or
\ntrademarks of or licensed to the Supplier, or make application for registration
\nof any trade names or trademarks of or licensed to the Supplier, without the
\nSuppliers prior written consent. The Purchaser agrees not to use, employ or
\nattempt to register any trade names or trademarks that are confusingly similar
\nto the trade names or trademarks of or licensed to the Supplier.<\/p>\n
5.02 PRODUCT LABELING. All Products will be shipped to the Purchaser as
\nset forth in Exhibit 6.<\/p>\n
5.03 SUPPLIER MATERIALS. The Supplier agrees to provide upon the
\nPurchaser request, [***] the following materials in media form with respect to
\nthe Products: (i) the specifications, (ii) published user instructions, manuals
\nand other training materials, (iii) current manuals covering installation,
\noperation and maintenance of the Products, and (iv) software. (v) Sales Tools
\nsuch as presentation slides, competition analysis and demonstration software,
\netc. The Purchaser shall have <\/p>\n
-6-<\/p>\n
the right to copy or reproduce the foregoing materials for use in connection
\nwith the Purchasers use, sale or support of the Products, or its support thereof
\npursuant to Section 5.06, provided that the Purchaser makes no modifications in
\nsuch copied or reproduced materials without the prior written consent of the
\nSupplier and all designations or references therein of or relating to the
\nintellectual property rights of the Supplier shall be maintained (including,
\nwithout limitation, all references to the Supplier copyright and other
\nintellectual property rights. The Purchaser shall include with each Product
\ndelivered to a Customer a license agreement – if so required by the Supplier –
\nand warranty in the form promulgated by the Supplier (with appropriate changes
\nto reflect the OEM relationship between the Supplier and the Purchaser).<\/p>\n
5.04 ADAPTATION OF DOCUMENTATION AND PROMOTION LITERATURE. The
\nPurchaser may translate into languages other than the English language such of
\nthe Suppliers user manuals, product descriptions and specifications, technical
\nmanuals, license agreements and other printed information relating to the
\nProducts as shall be determined to be appropriate by the Purchaser. The
\nPurchaser shall own all rights in all such translated adaptations to promotional
\nmaterials, including, without limitation, rights to all local language
\ntranslations of the Supplier user manuals, product descriptions and
\nspecifications, 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 Purchasers employees engaged in
\ntier two technical support of the Products, to be conducted one day each at
\nPurchaser 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 Agreement,
\nSupplier shall, at [***] expense, provide Purchaser with all materials utilized
\nto provide training in connection with the Product(s), materials as they become
\navailable. Such training shall include, but is not limited to, Purchaser sales,
\nPurchaser Field Sales Engineers, and Technical Support courses. Training
\nmaterials shall include, but are not limited to, instructor guides, overheads,
\nstudent workbooks, and manual\/guides. Purchaser shall have the right to
\nreproduce and distribute copies of all training materials, related documents and
\nrecordings under Purchaser name to trainees in training courses offered by
\nPurchaser. All training material shall be provided electronically.<\/p>\n
-7-<\/p>\n
(c) The Supplier shall provide electronic mail access or access
\nto a private web account for software updates and bulletins, which include known
\nproblems, work arounds, expected fixes and matters of a similar nature.<\/p>\n
(d) In connection with the technical and sales training and
\nassistance described in this Section 5.05, the cost and expense of the Purchaser
\npersonnel in attending same shall be borne by the [***].<\/p>\n
5.06 TECHNICAL SUPPORT. During the term of this Agreement, the Supplier
\nshall 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 will
\nbe free from defects in design, materials and workmanship and will perform in
\nconformance with the Applicable Specifications and Documentation with respect to
\nsuch Product, including the customization requirements set forth in Exhibit 6.
\nThe period of warranty shall be [***] from the date of delivery of such Product
\nto the Purchaser.<\/p>\n
(a) During the warranty period set forth in this Section 6.01,
\nthe Purchaser [***] and [***] remedy in the event of such defect or failure to
\nperform is expressly limited to the correction of the defect or failure by
\nrepair, refurbishment or replacement, at the Supplier’s [***] option and
\nexpense. During the warranty period, change orders and maintenance revision
\nupgrades will be provided upon request and as may be needed for proper operation
\nof Products. The Supplier reserves the right, in connection with the replacement
\nof returned Products or the repair of Products returned for repair, to use parts
\nand components (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 Products
\nshall be made as follows: (i) claims shall be made in accordance with the Return
\nMaterial Authorization procedure of the Supplier set forth in Exhibit 7 as same
\nmay be amended from time to time on at least [***] notice to the Purchaser.<\/p>\n
(c) Notwithstanding the foregoing, the Supplier shall have no
\nliability pursuant to Section 6.01 with respect to defects arising in Products
\nthrough: (i) normal wear and tear or obsolescence, (ii) causes external to the
\nProducts (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, to the
\nbest of its knowledge, it has all right, title, ownership interest and\/or
\nmarketing rights necessary to provide the Products to the Purchaser, and the
\nProducts and their sale and use hereunder do not infringe upon any copyright,
\npatent, trademark, trade secret or other proprietary or intellectual property
\nright 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 actions,
\nclaims, losses and damages (including reasonable attorneys’ fees and court
\ncosts) arising out of or in connection with any breach or alleged breach of the
\nwarranties set forth in Section 6.02, provided that the Supplier is notified
\npromptly in writing thereof and is given complete authority and information
\nrequired for the defense thereof. The Purchaser shall have the right to
\nparticipate in the defense of any such suit or proceeding at the Purchaser’s
\nexpense and through counsel of its choosing. In the event that an injunction is
\nsought or obtained against the use of a Product, the Supplier shall, within
\n[***] of its receipt of notice thereof, at [***] option and expense: (i) procure
\nfor the Purchaser and its Customers the right to continue to use the infringing
\nProduct as set forth in this Agreement, or (ii) replace the Product with a
\nnon-infringing alternative, or (iii) modify the infringing Product to make its
\nuse non-infringing. The Supplier shall have no liability under Section 6.02 or
\nunder this Section 6.03 for any infringement based on the use of any Product
\n(including, without limitation, software), if the Product (or software) is used
\nin a manner or with equipment for which it was not reasonably intended, or if
\nthe Product (or software) is used in an infringing process.<\/p>\n
6.04 DISCLAIMER OF WARRANTIES. THE WARRANTIES SET FORTH IN THIS ARTICLE
\nVI ARE THE ONLY WARRANTIES MADE BY THE SUPPLIER PURSUANT TO THIS AGREEMENT.
\nEXCEPT FOR SUCH WARRANTIES, THE SUPPLIER MAKES, AND THE PURCHASER, ITS CUSTOMERS
\nAND END USERS OF PRODUCTS RECEIVE, NO OTHER WARRANTY, EXPRESS OR IMPLIED, AND
\nTHE SUPPLIER EXPRESSLY DISCLAIMS AND EXCLUDES ALL OTHER WARRANTIES. NO
\nREPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING, WITHOUT LIMITATION,
\nSTATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE OF THE
\nPRODUCTS PROVIDED HEREUNDER, WHETHER MADE BY THE SUPPLIER EMPLOYEES OR
\nOTHERWISE, WHICH IS NOT CONTAINED IN THIS AGREEMENT, SHALL BE DEEMED TO BE A
\nWARRANTY BY THE SUPPLIER FOR ANY PURPOSE, OR GIVE RISE TO ANY LIABILITY OF THE
\nSUPPLIER WHATSOEVER.<\/p>\n
ARTICLE VII<\/p>\n
TERMINATION<\/p>\n
7.01 TERMINATION. Either party may terminate this Agreement, with or
\nwithout cause, upon giving the other party at least [***] prior written notice,
\nor immediately by mutual agreement of the parties in writing. In case of
\ntermination by Supplier, Purchaser may in the [***] notice period <\/p>\n
-9-<\/p>\n
place a non-cancelable last-time-buy order for such Products at [***], for
\ndelivery within [***] after the expiration of the [***] notice period.<\/p>\n
In the event that either party materially defaults in the performance of
\nany 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 receiver
\nor similar officer for the other party; (iii) an assignment by the other party
\nfor the benefit of all or substantially all of its creditors; (iv) the entry by
\nthe other party into an agreement for the composition; (v) extension or
\nreadjustment of all or substantially all of its obligations; or (vi) the filing
\nof a meritorious petition in bankruptcy by or against the other party under any
\nbankruptcy or debtors law for its relief or reorganization.<\/p>\n
7.03 RIGHTS UPON TERMINATION. The termination of this Agreement or any
\nPurchase Order shall not affect the Suppliers right to be paid for Products
\npreviously shipped. The termination of this Agreement shall not affect any of
\nthe Suppliers warranties, indemnifications or obligations relating to returns,
\ncredits or any other matters set forth in this Agreement that by their nature
\nare to survive termination in order to carry out their intended purpose, all of
\nwhich shall survive the termination of this Agreement. The termination of this
\nAgreement shall not affect the obligations of either party to the other party
\npursuant to any Purchase Order previously accepted and confirmed by the
\nSupplier.<\/p>\n
7.04 RETURN OF MATERIALS. In the event of the termination of this
\nAgreement, the Purchaser shall promptly return to the Supplier all sales
\nmaterials, specifications, drawings and other technical documents (including all
\ncopies thereof received from the Supplier under this Agreement as directed by
\nthe Supplier. The provisions of Section 7.04 shall survive the termination of
\nthis Agreement.<\/p>\n
7.05 NO LIABILITY. Upon the termination of this Agreement, the Supplier
\nshall not be liable or obligated to the Purchaser with respect to any payments,
\nfuture profits, exemplary, special or consequential damages, indemnification or
\nother compensation regarding such termination, irrespective of whether such
\nobligations or liabilities may be contemplated by the law(s) of the governments
\nof any jurisdiction in which Products of the Supplier are sold or marketed by
\nthe Purchaser, and the Purchaser hereby waives and relinquishes any rights,
\npursuant to law or otherwise, to any such payments, indemnifications or
\ncompensation.<\/p>\n
-10-<\/p>\n
ARTICLE VIII<\/p>\n
MISCELLANEOUS<\/p>\n
8.01 LIMITATION OF LIABILITY. THE SUPPLIER SHALL HAVE NO LIABILITY FOR
\nANY LOSS OF PROFIT OR OTHER COMMERCIAL DAMAGE, INCLUDING, WITHOUT LIMITATION:
\nINCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND;
\nLOSS OF, OR DAMAGE TO, THE PURCHASER OR ANY END USER’S RECORDS OR DATA; THIRD
\nPARTY CLAIMS AGAINST THE PURCHASER; OR LOSS OF REVENUE, LOSS OF BUSINESS OR
\nOTHER FINANCIAL LOSS ARISING OUT OF OR IN CONNECTION WITH ANY PRODUCTS SOLD OR
\nLICENSED BY THE SUPPLIER TO THE PURCHASER OR TO ANY END USER OF PRODUCTS, EVEN
\nIF THE SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.<\/p>\n
8.02 ENTIRE AGREEMENT. This Agreement contains the entire understanding
\nof the parties relating to the subject matter contained herein and supersedes
\nall prior agreements and understandings, written or oral, relating to the
\nsubject matter hereof. This Agreement shall not be modified, amended or
\nterminated except in a writing signed by both parties.<\/p>\n
8.03 RELATIONSHIP OF PARTIES. The relationship of the parties under
\nthis 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 of
\nperformance of its obligations pursuant to this Agreement, it may obtain certain
\nConfidential Information (as defined herein in Section 8.04(a)) of the other
\nparty. Each party hereby agrees that all Confidential Information communicated
\nto it by the other party, its subsidiaries or Customers, whether before or after
\nthe Effective Date, shall be and was received in strict confidence, shall be
\nused only for purposes of this Agreement, and shall not be disclosed without the
\nprior 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 <\/p>\n
-11-<\/p>\n
commercial information designated as confidential or proprietary that a party
\nmay receive belonging to any supplier, customer or others who do business with a
\nparty. The foregoing limitations on use and disclosure shall not apply to
\ninformation that: (i) was lawfully known to the receiving party before its
\nreceipt thereof; (ii) is learned by the receiving party from a third party
\nentitled to disclose same; (iii) becomes publicly known other than through the
\nactions of the receiving party, or (iv) is required by law or court order to be
\ndisclosed by the receiving party.<\/p>\n
(b) Upon the termination of this Agreement, each party that has
\nreceived Confidential Information shall immediately surrender to the other party
\nall Confidential Information in a receiving party’s possession of or relating to
\nthe other party, or in the possession of any person or entity under the
\nreceiving party’s control, including all copies thereof, relating directly or
\nindirectly 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 timing
\nof 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 for a
\nperiod of [***] after the expiration of the Agreement to provide Purchaser with
\nnew software updates\/versions.<\/p>\n
8.06 NOTICES. Any notice, request, instruction or other document to be
\ngiven under this Agreement by a party hereto to the other party shall be in
\nwriting and shall be deemed to have been duly given on the date of service if
\ndelivered personally, or on the third day after mailing if sent by certified
\nmail, postage prepaid, at the addresses set forth below, or to such other
\naddress or person as a party may designate by written notice to the other:<\/p>\n
In the case of the Supplier: In the case of the Purchaser:
\n ————————— —————————-
\n Zaffire, Inc. UTStarcom, Inc.
\n 2630 Orchard Parkway 1275 Harbor Bay Parkway
\n San Jose, CA 95134, 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, strikes
\nor other labor disputes (whether lawful or not), war, revolution, riot or other
\nviolence, lack of energy, or any other law, order, proclamation, regulation,
\nordinance, demand or requirement of any governmental agency, or any other cause
\nbeyond 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 <\/p>\n
-12-<\/p>\n
Force Majeure condition so long as such party provides the other party with
\nprompt written notice describing the Force Majeure condition and the causes of
\nnonperformance and immediately continues performance whenever and to the extent
\nsuch conditions and causes of nonperformance cease to exist. Without limitation,
\nobligations with respect to the payment of monies or other consideration shall
\nnot be excused due to the occurrence of a Force Majeure condition.<\/p>\n
(b) If, due to a Force Majeure condition, the scheduled time of
\ndelivery 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 construed
\nin accordance with the laws, other than choice of law rules, of the State of
\nCalifornia and the parties hereby consent to the exclusive jurisdiction of the
\ncourts of the State of California.<\/p>\n
8.09 BINDING EFFECT. This Agreement shall be binding on, and inure to
\nthe benefit of the parties hereto and their respective representatives,
\nsuccessors and permitted assigns, but neither this Agreement nor any of the
\nrights, interests or obligations hereunder shall be assigned by either of the
\nparties hereto, whether by operation of law or otherwise, without the prior
\nwritten consent of the other party.<\/p>\n
8.10 EXHIBITS. All exhibits attached hereto are incorporated herein by
\nreference.<\/p>\n
8.11 SEVERABILITY. In the event that any provision contained herein
\nshall be held to be invalid, illegal or unenforceable for any reason, such
\ninvalidity, illegality or unenforceability shall not affect any other provision
\nhereof, and this Agreement shall be construed as if such invalid, illegal or
\nunenforceable 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, the
\nremedies provided herein shall be cumulative and shall not preclude the
\nassertion by any party of any other rights or the seeking of any other remedies
\nagainst any other party, as the case may be.<\/p>\n
8.14 DELAYS OR OMISSIONS. No delay or omission to exercise any right,
\npower or remedy accruing upon any breach or default under this Agreement shall
\nimpair any such right, power or remedy nor shall it be construed to be a waiver
\nof any such breach or default, or an acquiescence therein, or in any similar
\nbreach or default thereafter occurring, nor shall any waiver of any single
\nbreach or default be deemed a waiver of any other breach or default theretofore
\nor thereafter occurring. Any waiver, permit, consent or approval of any kind or
\ncharacter of any breach or default under this Agreement, or any waiver of any
\nprovisions or conditions of this Agreement, shall be in writing and shall be
\neffective only to the extent specifically set forth in such writing.<\/p>\n
-13-<\/p>\n
8.15 SURVIVAL OF TERMS. Termination of this Agreement for any reason
\nshall not release either party from any liabilities or obligations set forth in
\nthis Agreement which (i) the parties have expressly agreed shall survive any
\nsuch termination, or (ii) remain to be performed or by their nature would be
\nintended to be applicable following any such termination.<\/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 the
\nPurchaser an exclusive right to purchase or sell products and shall not prevent
\neither party from developing relationships with other vendors or customers.<\/p>\n
8.17 SOFTWARE LICENSES. Whenever the Products described in this
\nAgreement shall include software, the Supplier hereby grants to the Purchaser a
\nnonexclusive license to market, demonstrate and distribute through its normal
\nchannels of distribution such software, in object code only, to Customers of the
\nPurchaser. The Purchaser agrees to comply with the Supplier reasonable software
\nlicense agreements, and agrees to use reasonable efforts to protect the
\nSupplier’s software, including using reasonable efforts to avoid allowing
\nCustomers, individuals or employees: (i) to make any unauthorized copies of the
\nSupplies licensed software; (ii) to modify, disassemble or decompile any
\nsoftware; (iii) to remove, obscure or alter any notice of patent, trademark,
\ncopyright or trade name; or (iv) to authorize any person to do anything that the
\nPurchaser is prohibited from doing 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
\nSupplies 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 agrees
\nthat it shall not, directly or indirectly, re-export, resell or otherwise ship
\nor transfer any of the Products, related Documentation, any technology related
\nthereto, any direct products of such technology, or any products of which any of
\nthe Products is a component (collectively, “CONTROLLED Products”) in violation
\nof any prohibitions of the Export Administration Regulations of the United
\nStates Department of Commerce, as amended from time to time (the “BXA
\nREGULATIONS”), whether such prohibitions are based on the type of product, the
\ncountry of destination, the end-user or end-use of <\/p>\n
-14-<\/p>\n
the product or otherwise. The Purchaser shall obtain appropriate licenses,
\ncomply with applicable license exceptions and\/or obtain appropriate written
\nassurances from purchasers or importers as may be necessary for its activities
\nwith respect to the Controlled Products to comply with the BXA Regulations. The
\nPurchaser further agrees that it shall not, directly or indirectly, export,
\nre-export, resell or otherwise ship or transfer any Controlled Products to any
\ncountries listed as “embargoed countries” in the Foreign Assets Control
\nRegulations of the United States Department of the Treasury, as amended from
\ntime to time (the “FOREIGN ASSETS CONTROL REGULATIONS”), without compliance with
\nthe Foreign Assets Control Regulations, including, without limitation, obtaining
\nany required prior written consent of the United States Office of Foreign Assets
\nControl.<\/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
Zaffire, Inc. UTStarcom, Inc.<\/p>\n
By: \/s\/ Signature Illegible By: \/s\/ Signature Illegible<\/p>\n
Title: VICE PRESIDENT Title: EVP C00 China Operation<\/p>\n
Aug. 25, 2000 Aug. 10, 2000<\/p>\n
EXHIBIT 1<\/p>\n
DESCRIPTION OF PRODUCTS<\/p>\n
The Products relevant to this Agreement include the following list which
\ncan be restated upon mutual agreement of both parties in an Amendment when new
\nproducts become available.<\/p>\n
[***]<\/p>\n
A detailed parts list of the [***], accurate as of the Effective Date, is
\nincluded on the following two pages for reference.<\/p>\n
DETAILED DESCRIPTION OF PRODUCTS (1)<\/p>\n
Release 1.2 Model Numbers<\/p>\n
[***]<\/p>\n
DETAILED DESCRIPTION OF PRODUCTS (2)<\/p>\n
[***]<\/p>\n
EXHIBIT 2<\/p>\n
INTERNATIONAL PRICE LIST (IN U.S. DOLLARS)<\/p>\n
1. Minimum Sales Volume. Reseller agrees to achieve Minimum Sales net
\nto Zaffire of [***] during the first [***] period of the Term beginning on the
\nAgreement date. The Minimum Sales volume for the second and each subsequent
\n[***]period will be mutually agreed upon between Reseller and Zaffire within
\n[***] of the end of the previous [***] period. Sales are calculated based upon
\nthe Purchase Price of Zaffire Products shipped to Reseller during the period.<\/p>\n
2. DISCOUNT SCHEDULE. The following percentage discounts from
\nZaffire’s List Prices will apply for Zaffire Products shipped to Reseller during
\nthe [***] period beginning on the Agreement date, and for each subsequent [***]
\nperiod during the Term of the Agreement.<\/p>\n
(a) [***] discount will be applied for the [***] PO regarding
\nthe TDS (Test and Demo System)<\/p>\n
(b) [***] discount will be applied for the [***] PO<\/p>\n
(c) Zaffire and UTStarcom will review the prices & discount
\nregularly to meet the market and competition requirement<\/p>\n
\n\n—————————————————————————————————————————
\n ZAFFIRE INTERNATIONAL PRICE LIST
\n—————————————————————————————————————————
\n PART NUMBER PART DESCRIPTION LIST VALUE
\n—————— ——————————————————————————— ———————-
\n
\n[***]
\n<\/c><\/c><\/s><\/caption>\n<\/table>\n EXHIBIT 3<\/p>\n
INITIAL FORECASTED VOLUMES<\/p>\n
Forecasts within [***]:<\/p>\n
[***]<\/p>\n
EXHIBIT 4<\/p>\n
TIME SCHEDULE<\/p>\n
1. 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 tbd<\/p>\n
4. Install TDS tbd<\/p>\n
EXHIBIT 5<\/p>\n
ZAFFIRE SERVICE GUIDE<\/p>\n
Introduction<\/p>\n
This Exhibit outlines the service and support requirements for the
\nZaffire 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 Zaffire products for
\nresale or sublicense to End-Users. Partners to include but not be limited to:
\nSystems Integrators, VARs, OEM’s and Distributors.<\/p>\n
“End-User” – shall mean any party who purchases Zaffire 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 Zaffire
\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 Zaffire products.<\/p>\n
“2nd – Level Support” – shall mean the Partner’s second level of
\nsupport including the engineers in the Partners support organization
\ncertified on Zaffire products. These individuals will perform advanced
\ntroubleshooting and diagnosis of the End-User’s issues as well as on-site
\nvisits when necessary.<\/p>\n
“3rd – Level Support” – shall mean Zaffire 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 Zaffire Development Engineering and can solve
\nextremely difficult or unusual problems.<\/p>\n
Commitments and Deliverables<\/p>\n
The following table sets the agreed upon Zaffire and Partner
\ncommitments for the Partners Service and Support Program.<\/p>\n
\n\n—————————————— ————————————— —————————————-
\nSupport Service Zaffire Commitments Partner Commitments
\n—————————————— ————————————— —————————————-
\n
\n[***]
\n<\/c><\/c><\/s><\/caption>\n<\/table>\nZaffire Technical Assistance Center (TAC)<\/p>\n
The Zaffire TAC is the focal point of Zaffire 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, Zaffire also has field-based
\nNetwork Support Engineers and Systems Engineers available to assist with pre-and
\npost-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 Zaffire’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 Zaffire 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 Zaffire 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, Zaffire has post-sales
\nfield resources available to assist Partnersfield resources in restoring an
\nEnd-User’s network to an operational state. These network engineering resources
\nare deployed by Zaffire’s support management.<\/p>\n
4.1 TAC Process<\/p>\n
-2-<\/p>\n
Partner and End-User work on case.
\n Case resolution requires participation by Zaffire’s TAC.
\n Partner accesses the TAC via methods listed above. A case is
\n opened in Zaffire’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
Zaffire offers multiple access methods to reach the 24×7 TAC:<\/p>\n
7x24x365 telephone at +1 408 894-7580
\n Email to SUPPORT@ZAFFIRE.COM
\n Fax to +1 408 894-7200<\/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 Zaffire
\n database. Partner will see cases that are opened to Partners site ID on
\n 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
\nsupport@zaffire.com that provides detailed company information and the Zaffire
\nService group 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
\n\n——————- ————————————————— —————————————————
\nSEVERITY LEVEL PRODUCTION NETWORK COMMITMENT
\n——————- ————————————————— —————————————————
\n
\nCritical [***] [***]
\n——————- ————————————————— —————————————————
\nHigh [***] [***]
\n——————- ————————————————— —————————————————
\nMedium [***] [***]
\n——————- ————————————————— —————————————————
\nLow [***] [***]
\n——————- ————————————————— —————————————————
\n<\/c><\/c><\/s><\/caption>\n<\/table>\n -3-<\/p>\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 Zaffire management (both field and internal)
\nof problem severity and status.<\/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. Zaffire 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 Zaffire within [***] of the receipt of the replacement
\npart. Equipment not received by Zaffire within [***] will be invoiced to the
\nPartner at [***].<\/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
\nZaffire’s receiving department.<\/p>\n
5.3 Return of Defective Product<\/p>\n
Defective product must be returned to Zaffire 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
-4-<\/p>\n
Zaffire, Inc.
\n 2630 Orchard Parkway
\n San Jose, CA 95134
\n United States of America<\/p>\n
Equipment returned without a valid RMA number will be rejected by
\nZaffire’s receiving department.<\/p>\n
Telephone: +1 408 894-7580<\/p>\n
Facsimile: +1 408 894-7200<\/p>\n
Only the affected part needs to be returned.<\/p>\n
Zaffire 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 Zaffire product was submitted for repair.<\/p>\n
Per customs regulations, Zaffire 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. Zaffire 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 Zaffire product into a
\nparticular country, it is [***] responsibility to provide such verbiage or
\ndocumentation prior to the shipment of a Zaffire product. Zaffire reserves the
\nright to refuse special requests if it is felt to be in violation of standard
\ncustoms regulations. Pricing<\/p>\n
Zaffire 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 Zaffire.<\/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
Additional Pricing for Support Services Rendered to Partner by Zaffire<\/p>\n
\n\n————————————————————– ————————————————————
\nADDITIONAL ZAFFIRE SERVICE PRICE AS SPECIFIED
\n————————————————————– ————————————————————
\n
\nOn-site assistance for non-Zaffire problem: [***]
\n————————————————————– ————————————————————
\nAssistance with modem configuration or delay caused by [***]
\nimproper modem configuration [***] delay maximum before
\ncharge is applied:
\n————————————————————– ————————————————————
\n<\/c><\/s><\/caption>\n<\/table>\nEnd-of-life Support<\/p>\n
-5-<\/p>\n
Partner will be notified when Zaffire announces end-of-life on a
\nproduct. At that time, Partner will be authorized to procure Zaffire product for
\na last-buy to satisfy the requirements of their End-Users.<\/p>\n
Zaffire 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
-6-<\/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 Zaffire system will be modified to reflect UTStarcom, Inc.
\nrequirements as listed below.<\/p>\n
CUSTOMIZED HARDWARE DELIVERABLES:<\/p>\n
The following is an overview of the customization requirement to be done
\nby Zaffire on every product and shipped to UTStarcom, Inc.:<\/p>\n
[***]<\/p>\n
CUSTOMIZED SOFTWARE DELIVERABLES:<\/p>\n
The following is an overview of the customization requirement to be done
\nby Zaffire on every software or management product and shipped to UTStarcom,
\nInc.:<\/p>\n
[***]<\/p>\n
CUSTOMIZATION SCHEDULE:<\/p>\n
“[***] Drawings (including Modules)
\n Date: TBD Send Zaffire Mechanical and label drawings to UTStarcom,
\n Inc.
\n Date: TBD UTStarcom, Inc. returns drawings to Zaffire with [***]
\n specification.<\/p>\n
“[***] User Manual
\n Date: TBD Send Zaffire User Manual in Word\/ASCII format to
\n UTStarcom, Inc.
\n Date: TBD UTStarcom, Inc. returns finished UTStarcom, Inc. User
\n Manual with production specifications.<\/p>\n
EXHIBIT 7<\/p>\n
RETURN MATERIAL AUTHORIZATION (RMA) PROCEDURES<\/p>\n
1. The Purchaser fills in a RMA problem form (see attachment below)
\n which describes the particular problem and the serial number of
\n the Product. The form is faxed or e-mailed to the contact person
\n (for RMA) at the Supplier.<\/p>\n
2. The Supplier responds to the RMA request providing an RMA number
\n (based on need).<\/p>\n
3. The Product is shipped to the Suppliers facility (San Jose,
\n California) with the RMA problem form so that the Supplier can
\n quickly trace out the related problem for each Product and
\n test\/verify the problem.<\/p>\n
4. The Supplier uses an RMA form (see attachment below) as a travel
\n form, which travels with the Product through the various entities
\n in the production\/RMA\/QA loop for processing. Each party fills in
\n additional details until the form is cleared (all details are
\n complete) and signed.<\/p>\n
5. The Product is fixed during its travel and is then shipped with
\n the RMA form back to the Purchaser.<\/p>\n
PROBLEM REPORT FORM \/ UTSTARCOM, INC.-REPORT<\/p>\n
1. Problem Number:__________________ 2. Status: OPEN CLOSED<\/p>\n
3. RMA Requested: YES NO<\/p>\n
4. Serial#:____________________ 5. Date Sent:__________________________<\/p>\n
6. Sent By:____________________ 7. Received Date:______________________<\/p>\n
Short Summary:__________________________________________________________________<\/p>\n
________________________________________________________________________________<\/p>\n
________________________________________________________________________________<\/p>\n
Test Details
\nConfiguration:__________________________________________________________________<\/p>\n
________________________________________________________________________________<\/p>\n
________________________________________________________________________________<\/p>\n
________________________________________________________________________________<\/p>\n
________________________________________________________________________________<\/p>\n
________________________________________________________________________________<\/p>\n
________________________________________________________________________________<\/p>\n
________________________________________________________________________________<\/p>\n
Zaffire Contact Person:____________________
\nRMA No:_________________ (Only if RMA) Date Promised:___________________
\nResponsible Person__________________________ Phone#:__________________________
\nResults:________________________________________________________________________
\n________________________________________________________________________________
\n________________________________________________________________________________<\/p>\n
ZAFFIRE<\/p>\n
RMA REPORT FORM – UTSTARCOM, INC.<\/p>\n
RMA#:_________________________ SERIAL#:______________________________<\/p>\n
Reason specified by
\nCustomer:_______________________________________________________________________<\/p>\n
Received Date:_____________________ Due Date:________________<\/p>\n
VERIFICATION DETAILS: Verified on: ________________ By: _________________<\/p>\n
Result: NPF VERIFIED OTHER Type: PRODUCTION COMPONENT DESIGN<\/p>\n
Verification Method:____________________________________________________________<\/p>\n
CAUSE IDENTIFICATION: Problem Identified on: ________________________ By: ______<\/p>\n
Cause:__________________________________________________________________________<\/p>\n
________________________________________________________________________________<\/p>\n
RESOLUTION DETAILS: Resolution Provided on:_________________ By:___________<\/p>\n
Method:_________________________________________________________________________<\/p>\n
________________________________________________________________________________<\/p>\n
Final Test: PASS FAIL (Perform Validation Test + Standard Test) Date: __________<\/p>\n
PREVENTION PROCEDURE: Advised on: ____________________ By: __________________<\/p>\n
Method:_________________________________________________________________________<\/p>\n
________________________________________________________________________________<\/p>\n
LABELING INFORMATION: Signed on: ______________________ By: ____________________<\/p>\n
Main Board Ser#: _________Ver: ____ Management Assembly Ser#: ________ Ver: ____<\/p>\n
Return Date: ____________________ By: _________________________<\/p>\n
________________________________________________________________________________
\nVP OPERATIONS RM PROGRAM MANAGER<\/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":[9613,9619],"class_list":["post-42613","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__sales"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42613","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=42613"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42613"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42613"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42613"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}