{"id":42803,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/software-licence-agreement-ddi-corp-and-utstarcom-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"software-licence-agreement-ddi-corp-and-utstarcom-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/software-licence-agreement-ddi-corp-and-utstarcom-inc.html","title":{"rendered":"Software Licence Agreement &#8211; DDI Corp. and UTStarcom Inc."},"content":{"rendered":"<pre>SOFTWARE LICENCE AGREEMENT\n\nTHIS AGREEMENT is made as of October 4, 2000\n\nBETWEEN\n\nDDI Corporation, a corporation duly organized and existing under the laws of\nJapan, whose registered office is at 8, Ichibancho, Chiyoda-ku, Tokyo 102-8401,\nJapan (the LICENSOR); and\n\nUTStarcom Inc., a corporation duly organized and existing under the law of\nDelaware, whose registered office is at 1275 Harbor Bay Parkway, Alameda, CA\n94502, USA (UTS).\n\nWHEREAS\n\n(A)      DDI-Pocket Incorporated, a corporation duly organized and existing\nunder the laws of Japan, whose registered office at 3-5-1 Toranomon, Minato-ku,\nTokyo 105-8477, Japan (DDI-P) developed P-mail Deluxe Software (PDX), a service\nwhich can be used in conjunction with the Personal Handyphone System (PHS);\n\n(B)      First International Telecom Corp., a corporation duly organized and\nexisting under the laws of Taiwan, whose registered office is at 3F, No. 80,\nSec. 1. Chien-kuo N. Rd., Taipei, Taiwan, R.O.C. (FITEL) desires to establish\nits own PHS business in Taiwan (FITEL TAIWAN PHS BUSINESS) and desires to use\nDDI-P's PDX service in conjunction with such FITEL Taiwan PHS Business;\n\n(C)      FITEL desires to have UTS develop the necessary systems and products\nand for UTS to licence to FITEL certain software and other intellectual property\nrelating to the FITEL Taiwan PHS Business;\n\n(D)      The Licensor and DDI-P entered into a distribution agreement documented\nin the Minutes of the Meeting dated as of July 4, 2000 whereby, among other\nthings (DISTRIBUTION AGREEMENT), DDI-P authorized the Licensor to enter into\nthis Agreement with UTS.\n\n(E)      The Licensor desires to grant UTS and UTS desires to obtain from the\nLicensor a [*] licence to use the Software and Software Documentation (as both\nterms are defined in Clause 1) to develop Products (as defined in Clause 1) to\nbe provided to FITEL for the FITEL Taiwan PHS Business and to sublicence such\nSoftware and Software Documentation to FITEL to enable FITEL to use such\nProducts for the FITEL Taiwan PHS Business upon the terms and conditions\ncontained in this Agreement.\n\nIT IS HEREBY AGREED as follows:\n\nDEFINITIONS\n\n.1       In this Agreement, unless otherwise expressly provided for, the\nfollowing expressions shall have the following meanings:\n\n\n\nDELIVERY DATE means the scheduled date for delivery of the Software Materials;\n\nLOCATION means UTS building\/location where the Software is to be delivered;\n\nMEDIA means the media on which the Software and the Software Documentation, as\nprovided to UTS by the Licensor, is recorded or printed;\n\nPARTIES shall mean the Licensor and UTS (each, a PARTY);\n\nPRODUCTS means the systems and products developed by UTS which are necessary for\nFITEL to operate the FITEL Taiwan PHS Business;\n\nPROPRIETARY INFORMATION means any information contained or embodied in the\nSoftware Materials and the Specifications or otherwise disclosed or made\navailable to UTS by or on behalf of the Licensor pursuant to or in connection\nwith this Agreement and the Technical Disclosure Agreements one being between\nDDI-P and FITEL and the other being between DDI-P and UTS both dated July 4,\n2000 (whether orally or in writing), and whether or not such information is\nexpressly stated to be confidential or marked as such;\n\nSOFTWARE means the computer programs in machine-readable object code only as\nspecified in Part A of Schedule 1;\n\nSOFTWARE DOCUMENTATION means the operating manuals, user instructions, technical\nliterature and all other related materials in eye-readable form written in\nJapanese as supplied to UTS by the Licensor for aiding the use and application\nof the Software only as specified in Part B of Schedule 1;\n\nSOFTWARE MATERIALS means the Software, the Software Documentation and the Media;\n\nSPECIFICATIONS mean the functional specifications of the Software including\ndetails of the environment in which the Software is designed to operate as set\nout in Schedule 1 describing the facilities and functions of the Software, the\nenvironment in which the Software is designed to operate and the language in\nwhich the Software is written, a copy of which is attached hereto and initialled\nby the parties for the purposes of identification only as Appendix 1;\n\n[*];\n\nUSE THE SOFTWARE means to read all or any part of the Software, from magnetic or\nother storage media at the Location;\n\nUSE THE SOFTWARE MATERIALS means to use the Software, and to read and possess\nthe Software Documentation in conjunction with the use of the Software and to\npossess the Media; and\n\nBASIS OF THIS AGREEMENT\n\n2.1  The Licensor hereby agrees to:\n\n(a)  deliver the Software to UTS on an \"AS IS\" basis at the Location;\n\n\n                                      -2-\n\n\n(b)  provide UTS with a copy of the Software Documentation on an \"AS IS\" \nbasis without any translation, modification or update;\n\n(c)  grant UTS a [*] licence in accordance with Clause 5 to (i) use the \nSoftware Materials to develop Products to be provided to FITEL which are to \nbe used in connection with the FITEL Taiwan PHS Business and (ii) sublicence \nthe use of such Software Materials to FITEL to enable FITEL to use the \nProducts in connection with the FITEL Taiwan PHS Business;\n\n(d)  disclose to UTS the source code of the Software to enable UTS to use the \nSoftware Materials to develop Products to be used in connection with the \nFITEL Taiwan PHS Business; and\n\n(e)  grant UTS a [*] licence to modify the source code of the Software only \nfor the purpose of developing Products in connection with the FITEL Taiwan \nPHS Business;\n\nupon and subject to the terms and conditions of this Agreement.\n\n2.2  An additional agreement shall be required detailing the terms and \nconditions for distribution of the Products or disclosure of the Proprietary \nInformation by UTS to a third party.\n\n2.3  UTS agrees not to use (or to allow FITEL to use) the Software Material \nor the Proprietary Information in a manner not permitted by this Agreement \nunless the Licensor expressly agrees otherwise in writing. Such prohibited \nadditional uses include, but are not limited to, the following:\n\n(a)  Where UTS intends to provide the Products to third parties other than to \nFITEL for use in connection with the FITEL Taiwan PHS Business;\n\n(b)  Where UTS or FITEL intends to distribute the Products for use outside of \nTaiwan in which case the Licensor may grant a further licence to UTS on \nidentical terms to this Agreement, with any necessary modification to reflect \nthe changed territory, for an additional total sum of [*];\n\n(c)  Where the Licensor and UTS separately agree to conduct trials or market \npromotions without paying the full amount of [*]. Such fees that may be \nagreed to for such trials or market promotions shall, upon the granting of \nany further license, be deducted from the total amount of [*] stipulated in \nsection (b) above for a further licence.\n\nPRICE AND PAYMENT\n\n3.1  The fee for the licence to be granted to UTS by the Licensor under this \nAgreement (the LICENCE FEE) shall be paid by UTS as follows:\n\n(a)  A [*] payment of [*] upon execution of the minutes of the meeting \nbetween DDI Group-DDI (include the Licensor and DDI-P) and UTS dated July 4, \n2000; and\n\n                                      -3-\n\n\n(b)  [*] on the [*] after the date on which UTS delivers the finished\nProducts to FITEL (the HANDLING DATE) or the date on which FITEL commences\noperational use of the Software in Taiwan, whichever shall occur earlier.\n\n3.2  The Licence Fee and any other charges payable under this Agreement are, \nunless otherwise specified:\n\n(a)  [*] of any packing, delivery or transportation charges incurred in\nJapan; and\n\n(b)  [*] of consumption tax or any other duties or taxes which may be\nchargeable on any goods or services provided to UTS hereunder and which shall be\npaid by [*] at the rate and in the manner for the time being prescribed law.\n\nFor the avoidance of doubt, [*] shall pay all taxes, tariffs, and duties,\nincluding any sales or use tax (and any related interest or penalty), however\ndesignated, imposed as a result of the execution or implementation of this\nAgreement, except any tax imposed upon the [*] corporate income. If the [*] is\nrequired to collect tax to be paid by [*], [*] shall promptly pay such tax to\nthe [*] on demand.\n\n3.3  The Licence Fee payable pursuant to Clause 3.1(b) shall be discharged if \nUTS notifies the Licensor by giving written notice, at any time before the \nHandling Date, that UTS desires to terminate the development of the Products, \nand if the Licensor accepts such notice.\n\n3.4  If any sum payable under this Agreement is not paid within [*] after the \ndue date, then (without prejudice to the Licensor's other rights and \nremedies) the Licensor reserves the right to charge interest on such sum on a \nday-to-day basis (after, as well as before, any judgment), from the due date \nto the date of payment inclusive, at the rate of [*] per annum.\n\n3.5  UTS shall not be entitled to withhold payment of any sum by reason of \nany right of set-off or any claim or dispute with the Licensor, whether \nrelating to the quality or performance of the Software Materials or otherwise.\n\n3.6  The Licensor shall have the right to suspend delivery where it \nreasonably believes that UTS will not make payment in accordance with this \nClause 3.\n\nDELIVERY AND INSTALLATION\n\n4.1  The Licensor shall use all reasonable endeavours to deliver to UTS:\n\n     (a)  one copy of the Software in source code; and\n\n     (b)  one copy of the Software Documentation;\n\non the Media at the Location on the Delivery Date.\n\n4.2  Delivery shall be effected and risk of accidental loss of, or damage to, \nthe Software Materials shall pass to UTS when delivery is tendered at the \nLocation during normal working hours. UTS \n\n                                      -4-\n\n\nacknowledge that they are responsible for effecting insurance cover for the\nSoftware Materials from the time at which risk in the Software Materials passes\nto it.\n\n4.3  The Licensor shall not be liable for any delay caused by events beyond its\nreasonable control and in such case shall be entitled to a reasonable extension\nof time to perform its obligations pursuant to this Clause 4.\n\n4.4  The Licensor shall not be responsible for complying with statutory\nregulations, local by-laws, or the fulfilment of any special regulations\naffecting UTS.\n\nLICENCE\n\n5.1  The Licensor hereby grants UTS a [*] licence to:\n\n(a)  use the Software only for the purpose of developing Products to be \nprovided to FITEL to be used in connection with the FITEL Taiwan PHS Business;\n\n(b)  sublicence the use of the Software Materials to FITEL only to enable \nFITEL to use the Products in connection with the FITEL Taiwan PHS Business.\n\n(c)  use the Software Documentation in support of its use of the Software for \nthe development of Products and sublicence of the Software pursuant to Clause \n5.1(a) and (b) above; and\n\n(d)  modify the source code of the Software disclosed by the Licensor to UTS \nunder Clause 2.1 (a) only for the purpose of, and only the extent necessary \nfor, developing Products to be used in connection with the FITEL Taiwan PHS \nBusiness.\n\nfor the duration of this Agreement.\n\n5.2  UTS shall not permit any third party other than FITEL to use the \nSoftware Materials, nor shall UTS use the Software Materials on behalf of or \nfor the benefit of any third party other than FITEL in any way whatsoever. \n\n5.3 UTS shall not disclose the source code of the Software to any third party \nincluding FITEL.\n\n5.4  UTS shall ensure that (i) FITEL will only use the Software Materials and \nProducts to enable it to use the Products in connection with the FITEL Taiwan \nPHS Business; (ii) FITEL shall only use the Products in connection with the \nFITEL Taiwan PHS Business; (iii) FITEL will observe the same obligations of \nconfidentiality in respect of the Proprietary Information as set forth in \nClause 11; (iv) its agreement with FITEL will not result in any breach of any \nof UTS's obligations under this Agreement; and (v) it uses its best efforts \nnominate the Licensor as a third party beneficiary of the agreement between \nUTS and FITEL.\n\n5.5  The licence granted under this Agreement to UTS shall not be deemed to \nextend to any programs or materials of the Licensor other than the Software \nMaterials unless expressly agreed to in writing by the Licensor. \n\n                                      -5-\n\n\n5.6  UTS may make only so many copies of the Software as is reasonably necessary\nfor its use of the Software pursuant to Clause 5.1 (a) above, and shall ensure\nthat all such copies bear the Licensor's proprietary notice. All such copies\nshall be subject to the terms and conditions of this Agreement.\n\n5.7  During the continuance of this Agreement, UTS shall:\n\n(a)  effect and maintain adequate security measures to safeguard the Software \nMaterials and any copies thereof from access or use by any unauthorised body \nor person;\n\n(b)  retain the Software Materials and any copies thereof under its exclusive \ncontrol; and\n\n(c)  maintain a full and accurate record of its copying and disclosure of the \nSoftware Materials and produce such record to the Licensor on request from \ntime to time.\n\nWARRANTY\n\n6.1  While the Licensor has endeavoured to use reasonable care in compiling the\nsystems and information incorporated in the Software Materials, the Licensor can\naccept no liability of any kind whatsoever for the accuracy and completeness of\nsuch systems or the Software Materials.\n\n6.2  UTS acknowledges that the Software Materials have not been produced to meet\nthe individual requirements of UTS and cannot be tested in every possible\ncombination. The Licensor does not warrant that (i) the facilities and functions\ncomprised in the Software will meet all of UTS's needs in connection with the\nFITEL Taiwan PHS Business, (ii) that the Software will operate in the\ncombinations which may be selected by UTS, (iii) that the operation of the\nSoftware will be uninterrupted or error free, or (iv) that all Software defects\ncan or will be corrected.\n\n6.3  The Licensor shall have no obligation to repair or replace the Software\nMaterials under any circumstances except as expressly provided in this\nAgreement. \n\n6.4  The Licensor warrants that it has full authority to licence to UTS on the\nterms and conditions of this Agreement, based on its Distribution Agreement with\nDDI-P.\n\nSUPPORT SERVICE\n\n7.1  The Licensor shall have no obligation to provide any technical support in\nconnection with the use of the Software under this Agreement or the FITEL Taiwan\nPHS Business.\n\n7.2  At the request of UTS, the Licensor may, [*], provide technical support as\nto the use of the Software or the FITEL Taiwan PHS Business on the terms and\nconditions provided in Appendix 2.\n\nSOFTWARE MAINTENANCE\n\n8.   Unless UTS enters into a separate software maintenance agreement with the\nLicensor on or before the Delivery Date (on terms to be agreed between the\nparties), the Licensor will not provide any maintenance in respect of the\nSoftware Materials. If at a later date UTS wishes the Licensor to \n\n\n                                      -6-\n\n\nprovide maintenance services in respect of the Software Materials, then the\nLicensor may [*] provide the same to UTS subject to UTS paying the Licensor's an\nagreed maintenance charge.\n\nMODIFICATIONS\n\n9.1  UTS may themselves modify the Software Materials at their own expense and\nresponsibility to the extent necessary for the development of the Products and\ntheir use in respect of the FITEL Taiwan PHS Business. UTS shall indemnify the\nLicensor against any claims that such modifications infringe the copyrights,\ndatabase rights, patents, trade secrets or other proprietary or intellectual\nproperty rights of any third party of whatever nature howsoever or wheresoever\narising.\n\n9.2  The copyrights, database rights, patents, trade secrets and other\nproprietary or intellectual property rights of whatever nature howsoever or\nwheresoever arising in such modifications shall be jointly owned by DDI-P and\nUTS. UTS shall be entitled without further charge to use such modifications in\norder to develop the Products and allow FITEL to use the Products for the FITEL\nTaiwan PHS Business upon the same terms and conditions as the Software Materials\nbut shall not otherwise be entitled to use such modifications. DDI-P shall be\nentitled to use such modifications in Japan. An additional agreement is required\nfor the use of such modifications outside of Taiwan or Japan.\n\n9.3  UTS shall promptly notify the Licensor of all such modifications and shall,\nwithout charge, supply to the Licensor copies of all documentation relating to\nsuch modifications, including full functional and performance specifications\nthereof and all source code materials.\n\n9.4  In addition to providing UTS with the most current version of the Software\nin accordance with Clause 2.1, the Licensor shall also provide UTS with any\nfuture modifications of the Software, including but not limited to any changes,\nmodifications, improvements or bug fixes to existing features, functionalities,\ndesigns or protocols that may be contained within the Software (FUTURE SOFTWARE\nMODIFICATIONs). The Licensor shall provide such Future Software Modifications to\nUTS [*] only for a period of only [*] from the execution of this Agreement. The\nterms and conditions of the license granted by the Licensor to UTS under this\nAgreement shall also apply MUTATIS MUTANDIS to any and all Future Software\nModifications provided by the Licensor to UTS, provided, however, that the\nprovision of Future Software Modifications by the Licensor after expiration of\nthe [*] period following the execution of this Agreement shall be subject to\nseparate pricing terms to be negotiated by the parties hereto.\n\nPROPRIETARY RIGHTS\n\n10.1 The Software Materials and all copyrights, database rights, patents, trade\nsecrets, trademarks and other proprietary or intellectual property rights\nwhatsoever, howsoever and wheresoever arising in the Software Materials and in\nall other written or oral information provided by the Licensor for the purposes\nof this Agreement, are and shall remain the exclusive property of DDI-P. DDI-P\nreserves the right to grant licences to use or otherwise exploit the Software\nMaterials to any other person or body. UTS shall not acquire any intellectual\nproperty rights of whatever nature in the Software Materials and may not copy\nthem or attempt in any way to decompile, disassemble, imitate or reverse\nengineer the Software except as expressly permitted in this Agreement.\n\n\n                                      -7-\n\n\n10.2 UTS shall notify the Licensor immediately if UTS become aware of any\nunauthorised use or exploitation of the whole or any part of the Software\nMaterials by any person or body. \n\n10.3 UTS will permit the Licensor to check the use of the Software Materials \nby UTS at all times during normal business hours, and for that purpose UTS \nshall grant the Licensor (and its agents, employees and representatives) an \n[*] licence to enter UTS's premises at any time during normal business hours, \nupon giving 48 hours advance written notice by the Licensor to UTS.\n\nCONFIDENTIALITY OF THE PROPRIETARY INFORMATION\n\n11.1 UTS undertakes to treat as confidential and keep secret the Proprietary\nInformation, and shall not without the prior written consent of the Licensor:\n\n(a)  exploit the Proprietary Information in whole or part other than as may \nbe necessary to enable UTS to use the Software Materials in accordance with \nthe terms and conditions of this Agreement;\n\n(b)  disclose the Proprietary Information in whole or part or make any aspect \nof the Proprietary Information available to any person or body, subject \nalways to Clause 11.2 below, other than to:\n\n     (i)   such of UTS' own employees as need to know or use the same for    \n           the purpose of performing their duties to UTS, for processing     \n           UTS' own data for its internal business purposes;\n\n     (ii)  UTS' auditor or any other person or body having the right, duty  \n           or obligation to know the business of UTS, and then only in      \n           pursuance of such right, duty or obligation;\n\n     (iii) any person or body who is appointed by UTS to maintain any       \n           equipment on which the Software is used (in accordance with the   \n           terms of this Agreement) and then only to the extent necessary    \n           to enable such person or body to properly maintain such equipment.\n\n11.2 UTS undertakes to ensure that any person or body to whom any part of the\nProprietary Information is disclosed pursuant to Clause 11.1(b) is made aware\nprior to the disclosure of any part of the Proprietary Information that (i) the\nsame is confidential and (ii) they owe an express duty of confidence to the\nLicensor. UTS shall indemnify and hold the Licensor harmless against any loss or\ndamage which the Licensor may suffer or incur as a result of UTS failing to\ncomply with such undertaking.\n\n11.3 UTS shall promptly notify the Licensor if they become aware of any breach\nof confidence by any person or body to whom UTS divulges all or any aspect of\nthe Proprietary Information and shall give the Licensor all reasonable\nassistance in connection with any proceedings which the Licensor may institute\nagainst such person or body in respect of such breach of confidence.\n\n11.4 The foregoing obligations as to confidentiality shall remain in full force\nand effect notwithstanding any termination of this Agreement.\n\nINTELLECTUAL PROPERTY INFRINGEMENT\n\n\n                                      -8-\n\n\n12.1 If claims arise out of the infringement of any Japanese patent or \ncopyright of any third party which is valid and effective at the date of this \nAgreement, with respect to the use by UTS and\/or FITEL of the Software \npursuant to the terms of this Agreement:\n\n(a)  UTS shall promptly notify the Licensor in writing of any allegations of \ninfringement of which it has notice or becomes aware;\n\n(b)  the Licensor shall have sole control over the defence of any such suit \nor claim and over all negotiations in relation thereto, responsibility for \nany and all attorneys' fees and legal costs related to defence of any such \nsuit or claim, and, in particular, UTS shall not make or attempt to make any \nsettlement or admit any liability in relation to such suit or claim without \nthe prior written consent of the Licensor;\n\n(c)  At the Licensor's expense, UTS shall take such actions and provide such \ninformation and enter into all such documents as the Licensor may reasonably \nrequire in relation to the defence of any such suit or claim.\n\n12.2 If UTS is prohibited by a court order from using the Software, then the\nLicensor shall have the right at its sole option to:\n\n(a)  procure for UTS the right to continue using the Software;\n\n(b)  modify or amend the Software so that it becomes non-infringing;\n\n(c)  replace all or part of the Software with programs of similar capability; \nor\n\n(d)  terminate this Agreement in respect of the Software so affected, if the \nLicensor considers that, in its reasonable opinion, the foregoing \nalternatives are not available on reasonable terms,\n\nin which event UTS shall cease using such prohibited Software forthwith and, at\nthe Licensor's direction, shall return, or certify that it has destroyed, the\noriginal copies of such Software so affected and any copies made by UTS thereof.\nIn such event, the Licensor shall be under no further liability to UTS with\nrespect to the Software so affected.\n\n12.3 Where any computer program materials, in relation to which rights are owned\nby a third party, are to be copied or otherwise used by UTS in association with\nany Software Materials, UTS warrants that they have any and all necessary\npermissions, express or otherwise, to enable them to copy or otherwise use such\ncomputer program materials without infringing such third parties rights.\n\n12.4 If UTS discloses such computer program materials to the Licensor or\nrequests or permits the Licensor to copy or otherwise use such computer program\nmaterials, UTS warrants that they are entitled to make such disclosures or\nrequests or give such permission, and that it has any necessary consent, express\nor otherwise, to enable the Licensor to copy or otherwise use such computer\nprogram materials as so requested or permitted without infringing said third\nparty rights.\n\n12.5 UTS shall indemnify the Licensor against any expense or loss the Licensor\nmay incur resulting from the infringement of third party patents, copyrights,\ndatabase rights, trade secrets, trade \n\n\n                                      -9-\n\n\nmarks or other proprietary or intellectual property rights whatsoever, howsoever\nor wheresoever arising in consequence of any matter referred to in Clauses 12.3\nor 12.4.\n\nUTS'S CONFIDENTIAL INFORMATION\n\n13.1 The Licensor shall treat as confidential all information supplied by UTS\nunder this Agreement which is designated as confidential by UTS or which is by\nits nature clearly confidential (the UTS CONFIDENTIAL INFORMATION). This Clause\nshall not extend to any information which:\n\n(a)  was lawfully in the possession of the Licensor prior to the commencement \nof the negotiations leading to this Agreement;\n\n(b)  is already public knowledge or becomes so at a future date (other than \nas a result of a breach by the Licensor of this Clause 13);\n\n(c)  comes into the Licensor's knowledge from a third party who lawfully \npossesses such information, and such disclosure is not in breach of a duty of \nconfidence owed by the disclosing party to UTS.\n\n13.2 The Licensor shall not divulge any UTS Confidential Information to any\nperson or body except to: \n\n(a)  such of its own employees, consultants, agents or representatives \nincluding the suppliers of any third party software as need to know the same \nfor the purpose of performing their duties pursuant to this Agreement. The \nLicensor shall ensure that its employees, consultants, agents or \nrepresentatives are aware of and comply with the provisions of this Clause 13;\n\n(b)  the Licensor's auditors and any other bodies having the right, duty or \nobligation to know the business of the Licensor and then only in pursuance of \nsuch right, duty or obligation.\n\n13.3 The foregoing obligations of this Clause 13 shall survive any termination\nof this Agreement.\n\nLIMITATION OF LIABILITY\n\n14.1 The Licensor shall not be liable to UTS for any loss, expense or damage of\nany kind (direct, indirect, economic or consequential and whether arising from\nnegligence or otherwise) resulting from the supply, purported supply, failure to\nsupply, use or possession of the Software Materials, or Products, or any other\nservice provided under this Agreement.\n\n14.2 No officer or employee of the Licensor shall be liable to UTS in any\ncircumstances for any loss, expense or damage of any kind (direct, indirect,\neconomic or consequential and whether arising from negligence or otherwise)\narising from any act or omission during the performance of his or her employment\nor other duties. All officers and employees of the Licensor from time to time\nshall be entitled to the benefit of the exemptions, limitations, terms and\nconditions in this Agreement.\n\n14.3 UTS acknowledges that they are exclusively responsible for:\n\n\n                                      -10-\n\n\n(a)  supervision, management and control of the use of the Software (including\nuse by FITEL) pursuant to the terms of this Agreement and ensuring that their\npersonnel are, at all times, educated and trained in the proper use and\noperation of the Software Materials;\n\n(b)  processing their data and ensuring the security and accuracy of all inputs\nand outputs; and\n\n(c)  making regular back-up copies of their data to ensure recovery of their\ndata in the event of malfunction of the Software;\n\n(d)  the selection, use of and results obtained from any other programs,\nequipment, materials or services used in conjunction with the Software\nMaterials; and\n\n(e)  any loss, expense, or damage of any kind (direct, indirect, economic or\nconsequential) suffered by FITEL resulting from the supply, purported supply,\nfailure to supply, use or possession of the Software Materials or Products or\nany other service provided to FITEL by UTS under UTS's agreement with FITEL.\n\n14.4 UTS shall indemnify the Licensor and shall keep the Licensor fully and\neffectively indemnified against any loss, expense, or damage of any kind\n(direct, indirect, economic or consequential) arising from the breach of this\nAgreement by UTS and against any loss of, or damage to, any properly or injury\nor death of any person caused by any negligent act, omission or unlawful\nmisconduct of UTS and\/or FITEL, their employees, agents or sub-contractors.\n\n14.5 UTS further acknowledges that they will obtain insurance cover in respect\nof all risks relating to their use of the Software Materials and all other goods\nand services provided under this Agreement and that they will ensure that the\nLicensor is noted on such insurance cover.\n\nTERMINATION\n\n15.1 Any Party hereto may terminate this Agreement forthwith on giving notice in\nwriting, to the a breaching Party if: \n\n(a)  the breaching Party commits any material or continuing breach of any \nterm of this Agreement and fails to remedy such breach within [*] after the \nreceipt of a request in writing from the aggrieved Party to do so (such \nrequest will contain a warning of the aggrieved Party's intention to \nterminate), provided, however, the Licensor may terminate this Agreement \nimmediately with written notice in the event that UTS fails to pay any part \nof the Licence Fee within [*] of the due date for payment;\n\n(b)  a Party learns or believes upon reasonable grounds that the other Party \n(being a body corporate) has or is likely to:\n\n     (i)  present a petition or have a petition presented against them by a\n          creditor for the appointment of an administrator or for their    \n          winding up;\n\n     (ii) convene a meeting to pass a resolution for a voluntary winding up\n          or the making of an administration order;\n\n                                      -11-\n\n\n    (iii) enter into liquidation (other than for the purposes of a bona\n          fide reconstruction or amalgamation);\n\n    (iv)  call a meeting of their creditors, or have a receiver,\n          administrator, administrative receiver, liquidator or any other\n          similar officer or insolvency practitioner appointed in respect\n          of all or any of its undertakings or assets;\n\n    (v)   refuse or be unable to meet any sums payable to another Party\n          when such sums fall due;\n\n    (vi)  cease to carry on business as a going concern or cease to be in \n          a position to fulfil this Agreement; \n\n(c)  a Party learns or believes upon reasonable grounds that the other Party \nshall be dissolved or shall commit any act of bankruptcy or have a bankruptcy \norder made against them or shall make or negotiate for any composition or \narrangement with, or assignment for, the benefit of their creditors; \n\n(d)  any event occurs in a foreign jurisdiction analogous to, or comparable \nwith Clause 15.1(b)(i) to (v) or 15.1(c) above.\n\n(e)  UTS notifies the Licensor of UTS's desire to terminate the development \nof Products and the Licensor accepts such notice in accordance with Clause \n3.3. \n\n15.2 Forthwith upon the termination of this Agreement for whatever reason:\n\n(a)  the Parties shall be discharged from any further liability to perform    \nunder this Agreement, except as otherwise specified in this Agreement;\n\n(b)  UTS shall pay the Licensor on demand for all goods and services provided \nto UTS by the Licensor prior to such termination;\n\n(c)  UTS shall either return to the Licensor all Software Materials \n(including any modifications thereto made by UTS) and all copies of the whole \nor any part thereof or, if requested by the Licensor, shall destroy the same \n(in the case of the Software, by erasing it from the magnetic media on which \nit is stored) and certify in writing by statutory declaration to the Licensor \nthat such Software Materials have been so destroyed.\n\n15.3 Any termination of this Agreement (howsoever occasioned) shall not affect\nany accrued rights or liabilities of any party nor shall it affect the\nenforceability of any provision hereof which is expressly or by implication\nintended to come into or continue in force on or after such termination.\n\nASSIGNMENT\n\n16.1 UTS shall not be entitled to assign or otherwise transfer any part of this\nAgreement or assign, sub-licence or otherwise transfer, charge or encumber the\nSoftware Materials (other than the permitted sublicense to FITEL under this\nAgreement) or any copies thereof without the prior written consent of the\nLicensor. Such consent, if given, may be made subject to the payment of any\n\n\n                                      -12-\n\n\nadditional fee and\/or any other term or condition. Any purported assignment,\nlicence or transfer by UTS without such consent shall be void. \n\n16.2 The Licensor may assign the benefit of this Agreement including the right\nto receive monies, or sub-contract the performance of any of its obligations to\nLicensor's subsidiary without the consent of UTS.\n\nWAIVER OF REMEDIES\n\n17. No waiver of any rights arising under this Agreement shall be effective\nunless in writing and signed by a duly authorised signatory of the Party against\nwhom the waiver is to be enforced. No failure or delay by either party in\nexercising any right, power or remedy under this Agreement (except as expressly\nprovided herein) shall operate as a waiver of any such right, power or remedy.\n\nENTIRE AGREEMENT\n\n18.1 This Agreement supersedes all prior agreements, arrangements, proposals and\nundertakings between the parties in relation to the subject matter hereof\n(whether written or oral) and constitutes the entire Agreement between the\nparties relating to the subject matter hereof. UTS further warrants that they\nhave not relied on any oral representation made by the Licensor or any agent,\nemployee or other representative or upon any description, illustration or\nspecification contained in any advertisements, catalogues or publicity materials\nproduced by or on behalf of the Licensor or in any correspondence between the\nLicensor and UTS before the date of this Agreement. \n\n18.2 No addition to or modification of any provision of this Agreement shall \nbe binding upon the Parties unless made by a written instrument signed by a \nduly authorised signatory of each of the Parties. Any other terms, conditions \nor provisions whether proposed by UTS orally or in writing shall be of no \neffect and the supply of the Software Materials or any other goods or \nservices by the Licensor to UTS shall not constitute acceptance by the \nLicensor of such other terms, conditions or provisions.\n\nNOTICES\n\n19.  Any notices or other communications required or permitted hereunder or\notherwise in connection herewith shall be in writing and shall be delivered\npersonally (including by courier), sent by facsimile transmission or sent by\ncertified or registered mail, postage prepaid. Any notice shall be deemed given\nwhen so delivered personally, or if sent by facsimile transmission, when so\ntransmitted provided that the sender's facsimile machine produces printed\nconfirmation of error free transmission to the correct number, or if mailed,\nupon receipt, as follows:\n\nTO THE LICENSOR\n\nAt:               3-2, Nishishinjuku 2-chome, Shinjuku-ku, Tokyo 163-8003\n                  Japan\n\n                  Attention:        Dr. Tsuneyoshi Narahara\n\n\n\n                                      -13-\n\n\n\n                  Facsimile No.:    +813 3347 5300\n\nTO UTS\n\nAt:               1275 Harbor Bay Parkway\n                  Alameda, CA  94502\n                  USA\n\n                  Attention:        Mr. Chang H. Kao\n\n                  Facsimile No.     +1 732 548 1099\n\n\nSEVERABILITY\n\n20.  Should any provision of this Agreement be void or illegal for any reason,\nthe validity of the remainder of the Agreement shall not be affected and the\nparties shall promptly enter into negotiation in good faith to find a\nreplacement for the provision which is of similar economic effect to both\nparties.\n\nFORCE MAJEURE\n\n21.  The Licensor shall not be liable in any way for any failure to perform its\nobligations or for any losses, damages or delays incurred by UTS resulting from\ncircumstances beyond the reasonable control of the Licensor; provided, however,\nthat the Licensor shall resume performing such obligations as soon as such\ncircumstances have ended.\n\nFURTHER ASSURANCE\n\n22.  Each Party agrees to execute such documents and waivers and generally do\neverything further that may be necessary to fulfil its obligations under this\nAgreement.\n\nJAPAN REGULATIONS\n\n23.1 The Software Materials may be subject to regulations imposed by \ngovernmental authorities (the REGULATIONS) restricting the ultimate \ndestination of such Software Materials. UTS agrees to indemnify the Licensor \nagainst any liability the Licensor may incur in consequence of UTS' \ninfringement of the Regulations, where the Licensor has attempted to \nsubstantially comply in good faith with said Regulations.\n\n23.2 This Agreement shall be conditional on the Licensor obtaining any necessary\nexport license from Japan or any other anticipation required pursuant to the\nRegulations. The Licensor shall be excused performance under this Agreement and\nshall have no further responsibility or liability to UTS if it is not able to\nobtain any export licence or authorisation required from Japan or any other\nauthorities.\n\nLAW AND DISPUTES\n\n\n                                      -14-\n\n\n24.  This Agreement shall in all respects be governed by and construed in\naccordance with the law of Japan, such that;\n\n(a)  Any dispute, controversy or claim arising out of or relating to this \ncontract, or the breach termination of invalidity thereof, shall be settled \nby arbitration in accordance with the International Chamber of Commerce (ICC) \nArbitration Rules as at present in force.\n\n(b)  The Licensor and UTS shall each appoint one arbitrator and the two \narbitrators so nominated shall designate a third arbitrator acceptable to \nboth appointing parties, failing which the third arbitrator shall be \nappointed in accordance with the arbitration rules of the ICC. The appointing \nauthority shall be the ICC.\n\n(c)  The place of arbitration shall be Tokyo, Japan if the dispute, \ncontroversy or claim is initiated by either of UTS. If the dispute, \ncontroversy or claim is initiated by the Licensor, the place of arbitration \nshall be Taipei, Taiwan.\n\n(d)  The language to be used in the arbitral proceedings shall be English.\n\n(e)  By agreeing to arbitration pursuant to this clause, the Parties \nirrevocably waive their right to any form of appeal, review or recourse, to \nany state court or other judicial authority, insofar as such waiver validly \nmade.\n\n                                      -15-\n\n\n\nIN WITNESS WHEREOF, each of the Parties hereto has caused this Agreement to be\nsigned by its duly authorized representatives on the date first above written.\n\n\nSigned for and on behalf\n\nof the LICENSOR\n\nDDI Corporation\n\n------------------------------------\n\nName:  Dr. Tsuneyoshi Narahara\n\nTitle: Senior Managing Director\n\n\n\n\nSigned for and on behalf\n\nof UTS\n\n------------------------------------\n\nName:  Mr. Paul Berkowitz\n\nTitle: VP of International Marketing\n\n\n\n\n\n                                   SCHEDULE 1\n\nThe following schedule is not binding. Amendments and changes to the following\nschedule shall be made if and when [*] deems such changes necessary.\n\n                                     PART A\n\nSOFTWARE\n\n[*]\n\n\n\n\n\n\n\n\n\n\n\n                                      -2-\n\n\n                                     PART B\n\nSOFTWARE DOCUMENTATION\n\n[*]\n\n\n\n\n\n\n\n\n\n\n\n\n                                      -3-\n\n\n                                   APPENDIX 1\n\nSPECIFICATION\n\n[*]\n\nSOFTWARE OPERATING ENVIRONMENT: Operates under [*] Operating System.\n\n\n         USED PROGRAM LANGUAGE: Software programmed by [*].\n\n\n\n\n\n\n\n\n\n\n                                      -4-\n\n\n                                   APPENDIX 2\n\nTRAINING AT DDI'S OFFICES\n\nUpon the prior mutual agreement of the Licensor and UTS, the Lincesor shall\nprovide technical and engineering support training to UTS personnel at the\nLicensor's office location, [*], in regard to the Software. [*] shall be\nresponsible for any and all costs and expenses related to the sending of UTS\npersonnel to the Licensor's office location for training , including but not\nlimited to airfare, lodging and meals.\n\nTRAINING FOR UTS PERSONNEL AS UTS'S OFFICES AND BUSINESS LOCATIONS\n\nUpon the prior mutual agreement of the Licensor and UTS, the Licensor shall send\nengineering personnel to UTS at its offices and business locations within Taiwan\n[and the People's Republic of China]. UTS shall reimburse the Licensor for\nsending such engineering personnel according to the folowing fee schedule: [*].\n\nLIMITATIONS\n\nWith respect to the training described above, neither the Licensor nor its\ndevelopment nor its employees or agents shall make any warranty or\nrepresentation as to the successful development by UTS of the PDX Center for the\nPHS network now being developed by UTS for FITEL for development in Taiwan.\n\n\n\n                                      -5-\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":[9613,9616],"class_list":["post-42803","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-utstarcom-inc","corporate_contracts_industries-telecommunications__equipment","corporate_contracts_types-operations","corporate_contracts_types-operations__ip"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42803","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=42803"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42803"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42803"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42803"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}