{"id":42708,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/purchase-agreement-for-p-r-china-market-utstarcom-inc-and.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"purchase-agreement-for-p-r-china-market-utstarcom-inc-and","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/purchase-agreement-for-p-r-china-market-utstarcom-inc-and.html","title":{"rendered":"Purchase Agreement for P. R. China Market &#8211; UTStarcom Inc. and Matsushita Electric Industrial Co. Ltd."},"content":{"rendered":"<pre>                                                           Agreement for China\n                                                                  CONFIDENTIAL\n\n                    PURCHASE AGREEMENT FOR P. R. CHINA MARKET\n\n         THIS AGREEMENT (this 'Agreement') made, effective as of the 1st day of\nApril, 1999 ('Effective Date'), by and between UTSTARCOM INC., a Delaware\ncorporation, with its principal place of business at 1275 Harbor Bay Parkway,\nSuite 100, Alameda, California 94502, the United States of America ('Buyer') and\nMATSUSHITA ELECTRIC INDUSTRIAL CO., LTD., CORPORATE MANAGEMENT DIVISION FOR\nCHINA, a corporation organized under the laws of Japan, with its principal place\nof business at 3-2, Minamisemba 4-chome, Chuo-ku, Osaka 542-8588, Japan ('MEI')\nand MATSUSHITA COMMUNICATION INDUSTRIAL CO., LTD., a corporation organized under\nthe laws of Japan, with its principal place of business at 4-3-1,\nTsunashima-higashi, Kohoku-ku, Yokohama 223-8639, Japan ('MCI', MEI and MCI are\nto be collectively called 'Seller').\n\n                              W I T N E S S E T H:\n\n         WHEREAS, Seller wishes to sell to Buyer, and Buyer wishes to buy from\nSeller, the Products (as defined below) on an OEM basis and on the terms and\nconditions set forth herein so that Buyer connects and integrates the Products\nwith other products to build up the wireless local loop system, and resells and\ninstalls such system in P. R. China.\n\n         NOW THEREFORE, in consideration of the mutual promises herein\ncontained, the parties agree as follows:\n\n1.       DEFINITIONS\n\n         SECTION 1.1 DEFINED TERMS. The following terms shall have the meanings\nprovided below;\n\n                  (a) 'Agreement' means this master purchase agreement and all\nexhibits and schedules hereto.\n\n                  (b) 'Agreement Number' means the unique number first as set\nforth above which shall be used by the parties to refer to this Agreement.\n\n                  (c) 'Products' means the Radio Port Controller, the Radio Port\nand the Personal Station with either Buyer's brand name or no brand name\n(designated by Buyer) of which model numbers are described in Exhibit A attached\nhereto as an integral part hereof. At any time during the term hereof, models of\nthe Products may be added or removed by amending Exhibit A in writing. The\nspecifications of the Products shall be mutually discussed and agreed by the\nparties hereto in a separate written instruments.\n\n                  (d) 'Individual Contract' shall mean the individual sale and\npurchase contract made hereunder whereby Buyer places purchase order for the\nProducts in writing and Seller accepts such order in writing in accordance with\nSections 3.2 and 3.3.\n\n\n\n\n\n                                                           Agreement for China\n                                                                  CONFIDENTIAL\n\n2.       PURCHASE AND SALE\n\n         SECTION 2.1 AGREEMENT TO BUY AND SELL. (a) Buyer shall purchase from\nSeller and Seller shall sell to Buyer such Products as Buyer may elect to\npurchase and Seller agrees to sell from time to time during the term of this\nAgreement by executing one or more Individual Contract(s), provided that Buyer\nmay place purchase orders for the Products only after the parties agree on\nspecifications thereof as provided for in Section 1.1 (c).\n\n                  (b) Seller may also make available to Buyer, on such terms as\nmutually agreed between Buyer and Seller from time to time, Products prototypes\nand other early production runs of Products on a sample basis.\n\n                  (c) Seller agrees that Buyer may cause its subsidiary,\nUTStarcom (Hangzhou) Telecom Co., Ltd., 3 Yile Industrial Park, Bldg 2\/3, 129,\nWen Yi Road, Hangzhou, 310012, P.R. China to perform certain rights and\nobligations of Buyer hereunder, e.g., receipt of the Products and obligations of\nSection l4.1, provided that Buyer proves and demonstrates to Seller's\nsatisfaction that said subsidiary has the license and approval necessary for\nsuch performance of Buyer's rights and obligations, and, upon Seller's request,\nprovides Seller with copies and other materials showing such license and\napproval. In such case, Buyer and such subsidiary shall be severally and jointly\nresponsible for such obligations of Buyer hereunder, and the performance of the\nobligations of Buyer by the said subsidiary shall not release Buyer from\nliability for the performance of its obligations hereunder. All the references\nto Buyer herein shall include said subsidiary of Buyer where and to the extent\nsaid subsidiary performs Buyer's obligations hereunder.\n\n         SECTION 2.2 CONTRACTED MINIMUM QUANTITY. The parties hereto agree to\nestablish the contracted minimum quantities as to each item\/model of Product\nwhich Buyer shall purchase from Seller for P. R. China market during each term\nof this Agreement as follows:\n\n\n\n\n      Item of Products                     Contracted Minimum Quantity on Shipment Base\n-------------------------------------      --------------------------------------------\n                                         \n      Radio Port Controller (RPC)                              [*]\n\n      Radio Port (RP)                                          [*]\n\n      Personal Station (PS)                                    [*]\n\n\n\n3.       DOCUMENTATION AND PURCHASE ORDERS\n\nSECTION 3.1 PRIORITY OF DOCUMENTATION. (a) This Agreement shall constitute a \nmaster purchase agreement for Buyer's purchase of Products from Seller and \nexclusively incorporates all the terms and conditions for the anticipated \npurchase and sale of such Products. In the event of a conflict between any of \nthe terms in the body of this Agreement, any Individual Contract or other \ndocumentation issued by Buyer or Seller, the terms and conditions of this \nAgreement shall take precedence thereover.\n\n[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY \n      WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH \n      RESPECT TO THE OMITTED PORTIONS.\n\n                                      -2-\n\n\n                                                           Agreement for China\n                                                                  CONFIDENTIAL\n\n                  (b) The terms and conditions of Individual Contracts,\nacknowledgments, invoices or any other business forms submitted by either party\nwhich conflict with or purport to amend the terms and conditions of this\nAgreement are hereby specifically objected to by the other party and shall be of\nno force or effect.\n\n                  (c) No additional or different terms proposed by Seller or\nBuyer shall become part of the Individual Contract or any transaction\ncontemplated hereunder without the written agreement of both Buyer and Seller\nwith the signatures of respective authorized directors.\n\n         SECTION 3.2 ORDER PLACEMENT AND ACCEPTANCE. Firm (non-cancelable)\norders for the Products shall be placed by Buyer to Seller, in writing and in\naccordance with this Article 3 hereof, [*]. Such orders shall be placed at least\n[*] prior to the shipment date requested therein. Seller will consider the \npurchase orders from Buyer, and shall have no obligation to accept such orders.\nIn case of acceptance, Seller shall notify Buyer of the delivery date within \n[*] of Seller after the receipt of the relative firm order, and until\nsuch notification is made, no order shall be binding on Seller.\n\n         SECTION 3.3 MINIMUM ORDER QUANTITY. The quantities of below mentioned\nitem of Products under one monthly order shall be the same as or over the\nrespective minimum order quantities set forth below. In the event Buyer requests\nto place a monthly order for any item of Products in the quantities less than\nsuch minimum quantities, Buyer and Seller will have a discussion as to whether\nSeller may accept such Buyer's request or not.\n\n\n\n\n        ITEM OF PRODUCTS                          MINIMUM ORDER QUANTITY\n   --------------------------               -------------------------------\n                                          \n   Radio Port Controller                                    [*]\n   Radio Port                                               [*]\n   Personal Station                                         [*]\n\n\n\n4.       PRICING\n\n         SECTION 4.1 PURCHASE PRICE. The prices of Products shall be separately\ndiscussed and mutually agreed from time to time by the parties hereto based on\nthe following conditions:\n\n                  (a) that the prices of all items of Products shall be quoted\non basis of FOB shipment port;\n\n                  (b) that the prices of all items of Products shall be quoted\nin the currency of US Dollar; and\n\n                  (c) that any price change, if any is agreed by the parties\nduring its validity, shall be applied only to such Individual Contracts as are\nmade after the date of such price change.\n\n[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY \n      WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH \n      RESPECT TO THE OMITTED PORTIONS.\n\n                                      -3-\n\n\n                                                           Agreement for China\n                                                                  CONFIDENTIAL\n\n5.   PRODUCT DISCONTINUANCE \n\n     SECTION 5.1 RIGHT TO DISCONTINUE PRODUCTS (a) Subject to its obligations\nunder any outstanding Individual Contracts, Seller reserves the right to cease\nthe manufacture and the offering of any Products to Buyer if such Product is not\nmade available to any other like customers of Seller. \n\n     (b) Seller shall provide Buyer at least [*] notice of any Product\ndiscontinuance.\n\n6.   DELIVERY \n\n     SECTION 6.1 ROUTING. All delivery of Products shall be made on basis of FOB\nJapanese airport, which shall be interpreted in accordance with the latest\nINCOTERMS.\n\n     SECTION 6.2 DELAY OF SHIPMENT. Seller has the right to delay or withhold\nthe shipment of the Products if Buyer delays or fails to pay for the Products in\nfull conformity with the Article 7 hereinbelow. Seller shall bear no\nresponsibility for the delay of shipment due to and during the period of Buyer's\nfailure of payment for the Products in full accordance with the Article 7, and\nBuyer shall incur any additional costs arising therefrom.\n\n     SECTION 6.3 PACKING. The package of the Products shall be at Seller's\nstandard for exports of goods.\n\n7.   PAYMENT SECTION\n\n     7.1 PAYMENT. The payment for the Products shall be made by Buyer to Seller\nby means of telegraphic transfer of funds to the bank account designated by MEI,\nto be made at least [*] prior to the scheduled shipment date of relative\nProducts, provided that any shipment of the Products should be made by air.\nNotwithstanding the foregoing, in case Buyer desires and Seller agrees, the\npayment for Radio Ports and Radio Ports Controllers may be made by Buyer to\nSeller by means of irrevocable and confirmed letter of credit, negotiable on [*]\nafter the date of Bill of Lading, to be opened in favor of MEI. In the event\nthat Buyer requests any specific shipment to be made by boat and Seller accepts\nsuch request, both parties hereto shall from time to time discuss and decide me\ndate by which Buyer should make payment for the relative Products, provided,\nhowever, that in no event shall such date be later than the date [*] prior to\nthe scheduled shipment date of relative Products. Such payment for the Products\nshall be made in the currency of US Dollar.\n\n     SECTION 7.2 SHIPPING INVOICE. Upon shipment of Products to Buyer pursuant\nto an Individual Contract, Seller shall submit to Buyer a written shipping\ninvoice showing: (i) Seller's name and address; (ii) Buyer's purchase order\nnumber and Individual Contract number given by Seller; (iii) description, model\nnumber and quantity of Products shipped; (iv) unit and aggregate price; and (v)\nspecial packing costs, if any. All information on the invoice must be consistent\nwith the relevant Individual Contract.\n\n\n[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY \n      WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH \n      RESPECT TO THE OMITTED PORTIONS.\n\n\n                                      -4-\n\n\n                                                           Agreement for China\n                                                                  CONFIDENTIAL\n\n8.   INSPECTION AND ACCEPTANCE\n\n     SECTION 8.1 INSPECTION. The inspection of quality, quantity and packing of\nthe Products at Seller's premises shall be carried out in accordance with\nSeller's inspection standards and procedures and shall be deemed as final.\nSeller agrees to Buyer's right to send its representative to attend such\ninspection at its own cost, and further agrees to send to Buyer data and results\nof each inspection of the Products.\n\n9.   LIMITED LIABILITY\n\n     SECTION 9.1 QUALITY REPORT. Buyer shall submit to Seller a monthly report\ndetailing the quality problem of Products occurring in market during the term\nhereof and [*] after the last delivery of the Products hereunder. Further, Buyer\nshall submit samples of Products alleged to be defective upon request of Seller.\n\n     SECTION 9.2 WARRANTY. Seller agrees to provide, with no charge to Buyer,\nthe quantities of each item of the Products equivalent to the percentages\nrespectively set forth below of the quantities on relative Individual Contract;\n\n\n\n                     ITEM OF PRODUCTS                   PERCENTAGE\n                     ----------------                   -----------\n                                                      \n                   Radio Port Controller                     [*]\n                   Radio Port                                [*]\n                   Personal Station                          [*]\n\n\n     In the event that the malfunctions or defects in any item of the Products,\nwhich Seller admits to be attributable to the manufacturer thereof such as\ndefects in design, parts or workmanship of Products based on data on quality\nproblem of Products occurring in market and Seller's analysis of samples of\nProducts alleged to be defective, should occur in more than the respective\npercentages set forth above of the total quantities of item of the Products\nwhich have been delivered within latest [*], Seller and Buyer will meet and\ndiscuss how to deal with such situation, on condition that Buyer performs its\nobligations stipulated in the Section 9.l.\n\n     SECTION 9.3 EXCESSIVE FAILURE. In the event that any malfunctions or\ndefects in a particular model of the Products, which Seller admits to be\nattributable to the manufacturer thereof such as defects in design, parts or\nworkmanship of Products based on data on quality problem of Products occurring\nin market and Seller's analysis of samples of Products alleged to be defective,\nshould occur in identical components or parts by reason of the same cause in\nmore than [*] of the total number of such particular model of the Products which\nhave been delivered within latest [*], Seller shall remedy all such malfunctions\nor defects in excess of such [*] maximum in the way selected by Seller, on\ncondition that Buyer performs its obligations stipulated in the Section 9.1.\n\n     SECTION 9.4 WARRANTY DISCLAIMERS. EXCEPT FOR THE ABOVE EXPRESS LIMITED\nWARRANTY, SELLER MAKES AND BUYER RECEIVES NO WARRANTY ON THE PRODUCTS, EXPRESS\nOR IMPLIED, STATUTORY, OR IN ANY OTHER PROVISION OF\n\n[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY \n      WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH \n      RESPECT TO THE OMITTED PORTIONS.\n\n                                      -5-\n\n\n                                                           Agreement for China\n                                                                  CONFIDENTIAL\n\nTHIS AGREEMENT OR COMMUNICATION WITH BUYER, AND SELLER SPECIFICALLY\nDISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS\nFOR A PARTICULAR PURPOSE, INCLUDING, WITHOUT LIMITATION, FITNESS FOR COMBINATION\nWITH ANY INTERFACE DEVICES TO BUILD UP ANY SYSTEM. \n\n10.  SERVICE AFTER SALE \n\n     SECTION 10.1 SERVICE AFTER SALE. Repair and other service after sale for\nthe users of Products shall be at the cost and responsibility of Buyer. Seller\nwill provide Buyer with the replacement parts for the Products on the terms and\nconditions to be mutually agreed upon by the parties from time to time during\nthe retention period provided for in Exhibit B attached hereto as an integral\npart hereof.\n\n         SECTION 10.2 SERVICE TRAINING. If the parties agree on a service\ntraining for the Products, Seller will provide that in accordance with the\nagreed terms and conditions, provided that Buyer shall reimburse Seller for air\nfreight, hotel accommodations and meals of Seller's employees conducting the\ntraining, and will pay to Seller for each Seller's employee conducting the\ntraining a [*].\n\n11. BRAND NAME SECTION\n\n     11.1 BUYER'S MARK (a) Seller shall affix Buyer's brand name and\/or its\ntrade name designated by Buyer ('Buyer's Mark') on the designated items of\nProducts.\n\n     (b) Seller acknowledges that Buyer has a proprietary interest in the\nBuyer's Mark and that no right, interest, ownership or privilege of use of such\nBuyer's Mark is accorded to Seller by reason of the relationship herein\nestablished. Buyer warrants and represents that Buyer is a sole and exclusive\nowner of Buyer's Mark as applied to the Products.\n\n12.  DISCLAIMERS\n\n     SECTION 12.1 LIMITATION ON LIABILITY EXCEPT AS EXPRESSLY PROVIDED HEREIN,\nEACH PARTY'S LIABILITY FOR ANY LOSS OR DAMAGE ARISING OUT OF OR RESULTING FROM\nTHESE TERMS AND CONDITIONS OR FROM ITS PERFORMANCE OR BREACH, OR IN CONNECTION\nWITH THE PRODUCTS PURCHASED HEREUNDER SHALL IN NO CASE EXCEED THE PURCHASE PRICE\nFOR THE SPECIFIC PRODUCTS WHICH GIVE RISE TO THE CLAIM. NEITHER PARTY SHALL BE\nLIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL\nDAMAGES (WHETHER FORESEEABLE OR NOT), NOR FOR DAMAGES FOR LOSS OF BUSINESS, LOSS\nOF PROFITS, LOSS OF CONTRACTS, OR ANTICIPATED SAVINGS (WHETHER FORESEEABLE OR\nNOT), IN CONTRACT, TORT, (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY,\nPRODUCT LIABILITY OR OTHERWISE, ARISING FROM THIS AGREEMENT OR INDIVIDUAL\nCONTRACTS HEREUNDER, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH\nDAMAGE.\n\n[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY \n      WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH \n      RESPECT TO THE OMITTED PORTIONS.\n\n                                      -6-\n\n\n                                                           Agreement for China\n                                                                  CONFIDENTIAL\n\n13. PRODUCT LIABILITY \n\n\n     SECTION 13.1 INDEMNITY AND DEFENSE. (a) Seller agrees to defend, indemnify\nand hold Buyer harmless against any liability, loss, expense, damage or cost\nfound by the court having jurisdiction in P.R. China under the product liability\nlaw or the laws and regulations having the same effect in P.R. China, or agreed\nin a settlement agreement between any plaintiffs and\/or claimants and Seller,\nwith respect to personal injury or death or property damage alleged to have been\ncaused by any defect in the Products or part thereof provided, however, that the\nforegoing indemnity and assumption of defense shall not be applied to any\ninstances where the alleged defect arises out of: (i) Buyer's failure to carry\nout proper handling, operating, installation, testing, service and check out of\nthe Products and\/or to follow Seller's reasonable instructions or advice with\nrespect to any of these matters; (ii) Buyer's utilization of any attachments or\ninterface devices or any modifications to the Products including any change to\nits instruction manuals, installation manuals, service manuals, warranty card\nand other related documents ('Related Documents') which are not approved by\nSeller in writing and in advance, or Buyer's preparation of such Related\nDocuments by itself; (iii) Buyer's incorporation of any parts not supplied by\nSeller into the Products and\/or combination of any equipment not supplied by\nSeller with the Products; (iv) Seller's compliance with any request,\ninstruction, design change, drawing or specification with respect to the\nProducts and Related Documents imposed on Seller by Buyer; (v) Buyer's wrong\nexplanation or failure to make necessary warning on the use or installation of\nthe Products to its customers or end users; or (v) any commission or omission of\nBuyer.\n\n     (b) Buyer agrees to defend, indemnify and hold Seller harmless against any\nliability, loss, expense, damage or cost arising out of personal injury or death\nor property damage alleged to have been caused by any of the instances (i),\n(ii), (iii), (iv) and\/or (v) specified in the above sub-section (a).\n\n14.  STATUTORY APPROVAL SECTION \n\n     14.1 BUYER'S RESPONSIBILITY. Obtaining import license, type approval or any\nother necessary governmental or administrative license or approval and taking\nany procedures and steps necessary to comply with the laws and regulations of\nthe country of destination and resale of the Products shall be at the\nresponsibility and cost of Buyer.\n\n15.  TERM AND TERMINATION \n\n     SECTION 15.1 TERM. The term (the 'Term') of this Agreement shall commence\non the Effective Date and end one year from such commencing date.\n\n     SECTION 15.2 TERMINATION. Either party may, at its option, terminate this\nAgreement, if the other party fails to remedy a material breach of this\nAgreement within sixty (60) days of written notice from the non-breaching party\nthereof.\n\n                                      -7-\n\n\n\n                                                           Agreement for China\n                                                                  CONFIDENTIAL\n\n     SECTION 15.3 EFFECT OF TERMINATION. (a) In the event of termination of this\nAgreement for breach by either party in accordance with Section 15.2 hereof, all\namount owned by the breaching party to the non-breaching party shall become\nimmediately due and payable.\n\n     (b) In the event of termination of this Agreement upon the expiration of\nthe Term or upon mutual agreement of the parties, all rights and licenses, if\nany, granted hereunder to either party shall terminate, provided, however, that\nall Individual Contracts that have been accepted prior to such termination shall\nbe filled in accordance with the terms and conditions of this Agreement.\n\n     SECTION 15.4 TERMINATION WITHOUT PREJUDICE. Any termination of this\nAgreement by either party for breach shall be without prejudice to the rights or\nremedies of that party.\n\n     SECTION 15.5 SURVIVAL. The following Articles and Sections and other\nArticles and Sections which should survive by their nature shall survive the\ntermination or expiration of this Agreement: 2.1(c), 8.1, 9.1, 9.2, 9.3, 9.4,\n10.1, 11.1, 12.1, 13.1, 14.1, 15.3, 15.4, 15.5, 17.2, 17.3, 17.7, and 17.9.\n\n16.  NOTICE \n\n     SECTION 16.1 NOTICE. Whenever written notice required under the provision\nof this Agreement, such notice shall be deemed sufficiently given if sent by\ncertified airmail to the other party at the address set forth below, or at such\nother address as the party shall have specified by written notice.\n\n\n\n\n                                               \n\nIf to Buyer    UTStarcom, Inc.                   If to Seller\n               1275 Harbor Bay Parkway,          (MEI)        Matsushita Electric \n               Suit 100, Alameda, California                  Industrial Co., Ltd., Corporate\n               94502, the U. S. A.                            Management Division for China,\nAttention      Terry Campbell                                 System Sales Office at 3-2, \n                                                              Minamisemba 4-chome,                                                  \n                                                              Chuo-ku, Osaka 542-8588, Japan\n\n                                                 Attention    Director of China\/Hong Kong\n                                                              Sales Office\n\n                                                 (MCI)        Matsushita Communication\n                                                              Industrial Co., Ltd.,\n                                                              Communication Systems Division\n                                                              4-3-1 Tsunashima-higashi\n                                                              Kohoku-ku, Yokohama 223-8639,\n                                                              Japan\n                                                  Attention   General Manager of International\n                                                              Business Department\n\n\n                                      -8-\n\n\n                                                           Agreement for China\n                                                                  CONFIDENTIAL\n\n17.  MISCELLANEOUS\n\n     SECTION 17.1 SUPERVISION. The supervision of the installation of Radio Port\nControllers, Radio Ports may be made by Seller upon Buyer's reasonable request\nand Seller's acceptance, provided that Buyer shall reimburse Seller for air\nfreight, hotel accommodations and meals, and will pay to Seller for each\nSeller's employee conducting the supervision a [*].\n\n     SECTION 17.2 CONFIDENTIAL TREATMENT. The contents of this Agreement shall\nin no event be disclosed by either party to third party except as required by\nlaws.\n\n     SECTION 17.3 PUBLICITY. If and when Buyer desires to refer to the business\nrelationship with Seller herein established on its company profile, catalogues\nor any other publicity materials, Buyer shall obtain Seller's prior written\nconsent thereto.\n\n     SECTION 17.4 NO OTHER RIGHTS. This Agreement does not confer upon either\nparty by implication, estoppel, laches or by any other means any license or any\nright other than those expressly granted herein.\n\n     SECTION 17.5 INDEPENDENT CONTRACTORS. In making and performing this\nAgreement, each party acts and shall act at all times as an independent\ncontractor, and nothing contained in this Agreement shall be construed or\nimplied so as to create the relationship of a partnership, agency, joint venture\nor employer employee relationship between Buyer and Seller.\n\n     SECTION 17.6 EXCUSABLE DELAYS. Neither party shall be liable for any\nfailure to perform or for any delay in the performance of any obligation under\nthis Agreement caused by circumstances beyond its reasonable control including,\nbut not limited to, fire, storm, flood, earthquake, explosion, war, rebellion,\ninsurrection, sabotage, labor disputes, delays in transportation, acts of God,\nacts of any national state, or local government authority, and any judicial\naction.\n\n     SECTION 17.7 TRANSFERABILITY OF RIGHTS AND OBLIGATIONS. This Agreement is\nnot assignable by either party without the other party's prior written consent\nthereto with the signature of its authorized director. Notwithstanding the\nforegoing, any permitted assignment shall be binding upon and inure to the\nbenefit of the successors of the parties hereto.\n\n     SECTION 17.8 GOVERNING LAW, DISPUTE, ETC. (a) This Agreement shall be\ninterpreted and governed in accordance with the laws of Japan, without reference\nto its conflicts of laws principles. The 1980 United Nations Convention on\nContracts for the International Sale of Goods shall not apply to this Agreement.\n\n     (b) Any disagreement in connection herewith shall be finally settled by\narbitration. If Seller initiates the arbitration, the arbitration shall be held\nin San Francisco, California, the U. S. A. in accordance with the arbitration\nrules of American Arbitration Association. If Buyer initiates the arbitration,\nthe arbitration shall be held in Tokyo, Japan in accordance with the arbitration\nrules of Japan Commercial Arbitration Association.\n\n[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY \n      WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH \n      RESPECT TO THE OMITTED PORTIONS.\n\n                                      -9-\n\n\n                                                           Agreement for China\n                                                                  CONFIDENTIAL\n\n     SECTION 17.9 SEVERABILITY. In the event that any provision of this\nAgreement is determined by a court of competent jurisdiction to be invalid, void\nor unenforceable for any reason, the remaining portions of this Agreement shall\ncontinue in full force and effect.\n\n     SECTION 17.10 EXPORT CONTROL. (a) In -no event shall Seller be bound by any\nterms and conditions that contravene any export laws, regulations or other\nrestraints of any relevant countries including but not limited to Japan and the\nU. S. A.. All orders are subject to the obtaining of any required licenses under\nthe said relevant laws. Buyer shall, upon Seller's request, furnish Seller with\nall information and documentation necessary for Seller in obtaining and\ncomplying with the required licenses.\n\n     (b) In the event that any and all the Products including replacement parts\nthereto to be purchased by Buyer from Seller and any technical documents or\ntechnical services to be supplied by Seller to Buyer relating thereto\n(hereinafter collectively called 'GOODS') are included in and remain the\n'restricted subject' whose export is controlled under the Foreign Exchange and\nForeign Trade Control Act and its relevant governmental\/administrative\nregulations of Japan, Buyer shall provide Seller with the 'End-Use Statement'\nsupplied by Seller and signed by Buyer, which is required for Seller to obtain\napprovals of the Japanese Government, and Buyer shall strictly comply with any\nand all provisions set forth therein. Specifically, Buyer shall not change the\nend-use of GOODS set forth therein nor transfer the GOODS to any country other\nthan the countries set forth therein. In the event that Buyer is not the\nend-user of GOODS, Buyer shall, upon request of Seller, make Buyer's customer(s)\nsign such End-Use Statement and make such customer(s) understand and comply with\nany and all the provisions therein. Buyer further agrees, upon request of\nSeller, to render the assistance necessary for Seller to check and verify the\ncompliance with provisions of End-Use Statement by Buyer or its customer(s). \n\n\n     (c) During and after the term of this Agreement, Buyer shall not sell,\nlease or otherwise dispose of GOODS, directly or indirectly, to any customer who\nmakes use of, is likely to or intends to make use of GOODS for 'Military\nPurposes'. In this Article, 'Military Purposes' means the design, development,\nmanufacture or use of any weapon including without limitation nuclear weapon,\nbiological weapon, chemical weapon and missiles.\n\n     (d) Buyer shall not export GOODS directly or indirectly through any third\nparty to any of the countries against which any economic sanction is imposed\nunder resolutions approved by the Security Council of the United Nations, as\nlong as such resolutions remain valid and effective and so far as GOODS remain\nthe 'prohibited subject' of which export to such countries is prohibited\nthereunder.\n\n     (e) In the case of any breach of this Article, Buyer shall be liable to\nSeller for any and all direct and indirect damages incurred by Seller arising\nfrom such breach, and Seller may cancel all existing Individual Contracts\nhereunder and this Agreement immediately without any liability to Buyer.\nFurther, Seller shall not obliged to fulfill any Individual Contracts which are\naccepted by Seller but subsequently discovered to be an improper end-use,\nMilitary Purpose, and the like, or sale to improper end-user or intermediary.\n\n                                      -10-\n\n\n                                                           Agreement for China\n                                                                  CONFIDENTIAL\n\n     SECTION 17.11 NON-WAIVER. The failure of either party to assert or enforce\nany right arising under this Agreement shall not constitute a waiver of such\nright, or any other right arising hereunder.\n\n     SECTION 17.12 HEADINGS. Headings contained in this Agreement are for ease\nof reference only and shall have no legal effect.\n\n     SECTION 17.13 TRIPLICATION. This Agreement shall be executed in triplicate,\nall of which, take together, shall constitute one single agreement among the\nparties.\n\n     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be\nexecuted by their respective duly authorized officers, effective as of the\nEffective Date.\n\nBUYER:                             SELLER:\n\nUTSTARCOM INC.                     MATSUSHTIA ELECTRIC INDUSTRIAL CO., LTD.,\n                                   CORPORATE MANAGEMENT DIVISION FOR CHINA\n \/s\/  Hong Liang Lu                  \/s\/ Yukio Shohtoku\n------------------------------     ------------------------------------------\nSigned by:  Mr. Hong Liang Lu      Signed by:  Mr. Yukio Shohtoku\nTitle:   President &amp; CEO           Title:   Managing Director,\n                                            Member of the Board\n\n                                   MATSUSHITA COMMUNICATION INDUSTRIAL CO., LTD.\n\n                                    \/s\/ M. Akiyama\n                                   --------------------------------------------\n                                   Signed by:  Mr. Masaki Akiyama\n                                   Title:  Senior Managing Director,\n                                           Member of the Board\n\n                                      -11\n\n\n                                                           Agreement for China\n                                                                  CONFIDENTIAL\n\n                                    EXHIBIT A\n\n                               APPLICABLE PRODUCTS\n                               -------------------\n\n\n\n                                    PRODUCTS\n------------------------------------------------------------------------------\n        ITEM                                         MODEL\n---------------------------------       --------------------------------------\n                                      \nRadio Port Controller\n1) Main shelf                                   EC-H11940-A\n2) Main Control Card                            EC - C10967A\n3) E1 Interface Card                            EC-L12998B\n4) Radio Port Interface Card                    EC - L12999B\nOutdoor Type Radio Port                         EA - 7H75B\nIndoor Type Radio Port                          EA-7H74B\n200mW Type Radio Port                           EA-7T56\nJoint Box                                       EA 18888AA\nPersonal Station                                UTS - 701\nPersonal Station                                UTS -702\n\n\n\n\n\n                                                           Agreement for China\n                                                                  CONFIDENTIAL\n\n                                    EXHIBIT B\n\n                        RETENTION PERIOD OF PARTS SUPPLY\n\n\n\n\n     ITEM OF PARTS                                  RETENTION PERIOD\n-------------------------------------      ----------------------------------\n                                        \nPrinted matter and packing material                       [*]\nMechanical parts (Appearance parts                        \nIe : case, etc.)                                          [*]\nMechanical and functional parts                           [*]\nElectric parts                                            [*]\n\n\n\n\n\n[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY \n      WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH \n      RESPECT TO THE OMITTED PORTIONS.\n\n<\/pre>\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-42708","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\/42708","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=42708"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42708"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42708"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42708"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}