\n22 EXHIBIT A: SECTION 7 ECONOMIC PROPOSAL AND EQUIPMENT LISTS………………………………………….20<\/p>\n 22.1 Price Validity………………………………………………………………………….20<\/p>\n
EXHIBIT B: END-USER SOFTWARE LICENSE………………………………………………………………22<\/p>\n
23 EXHIBIT: C MUTUAL NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT……………………………………….23<\/p>\n
24 EXHIBIT D: BUSINESS PLAN AND PROJECT COMMERCIAL MILESTONES…………………………………………..26<\/p>\n
25 EXHIBIT E: PROJECT IMPLEMENTATION SCHEDULE…………………………………………………………26<\/p>\n
26 EXHIBIT F: TRAINING AND TECHNOLOGY TRANSFER………………………………………………………..26
\n<\/c><\/c><\/s><\/table>\n
-iii-<\/p>\n
STRATEGIC ALLIANCE [*] CONTRACT NO. HT 112300
\nTELECO NETWORK EXPANSION<\/p>\n
STRATEGIC ALLIANCE, PURCHASE AND LICENSE AGREEMENT<\/p>\n
THIS STRATEGIC ALLIANCE, PURCHASE AND LICENSE AGREEMENT (the “Agreement”) is
\nmade by and between UTSTARCOM, INC., a Delaware corporation, having offices at
\n1275 Harbor Bay Parkway, Suite 100, Alameda, California 94502, United States of
\nAmerica (hereinafter referred to as “Company”), duly represented by Mr. Omar A
\nGraibe, Managing Director, Caribbean and Latin America of Company and
\nTELECOMMUNICATIONS D’HAITI S.A.M., hereinafter referred to as TELECO or BUYER, a
\ncompany, with its principal place of business at Port Au Prince, Republic of
\nHaiti, duly represented by Monsieur Jean-Francois Chamblain, Directeur General
\nof TELECO, appointed by the President du Conseil d’Administrationon Gouverneur
\nde la Banque de la Republique d’Haiti on September 1998, and duly authorized by
\nthe Government of Haiti to enter into and sign this contract.<\/p>\n
WHEREAS, BUYER desires to purchase and license, from time to time,
\ncertain of Company’s products and services; and<\/p>\n
WHEREAS, Company wishes to enter a strategic alliance, sell and license
\nsuch products and services to BUYER upon the terms and conditions set forth
\nherein.<\/p>\n
NOW, THEREFORE, the parties agree as follows:<\/p>\n
1. DEFINITIONS<\/p>\n
For the purpose of this Agreement, the terms below shall have the following
\ndefinitions:<\/p>\n
1.1 “Functional Verification”<\/p>\n
“Functional Verification” means completion of tests performed by Company in
\naccordance with the Functional Verification test procedure to be provided by
\nCompany and approved by the BUYER prior to the commencement of the tests.<\/p>\n
1.2 “Commercial Service”<\/p>\n
“Commercial Service means the earliest date when any of BUYER’s subscribers or
\ncustomers begins to use the Product.<\/p>\n
1.3 “Effective Date”<\/p>\n
“Effective Date” means the earliest date by which duly authorized officers of
\nboth parties have signed this Agreement.<\/p>\n
STRATEGIC ALLIANCE [*] CONTRACT NO. HT 112300
\nTELECO NETWORK EXPANSION<\/p>\n
1.4 “Product”<\/p>\n
“Product” means collectively all hardware and software components and subsystems
\nprovided by Company as more fully described in EXHIBIT A attached hereto.<\/p>\n
1.5 “Services”<\/p>\n
“Services” means collectively labor delivered by Company and\/or its
\nsubcontractors for the purpose of training, installation, repair or other
\npurposes.<\/p>\n
1.6 Documentation<\/p>\n
“Documentation” means all user manuals, training manuals, Software release
\nnotes, and other similar, written materials to be provided in English during the
\ninitial Project’s phase and in French after the completion of the Project’s
\nfirst phase, provided with the System, as may be updated by Company from time to
\ntime.<\/p>\n
1.7 “Software”<\/p>\n
“Software”–the executable (object code) version of software as developed by
\nand\/or licensed to Company for use in the Product.<\/p>\n
1.8 “Software License Agreement”<\/p>\n
“Software License Agreement” means the Software License Agreement between the
\nparties and attached hereto as EXHIBIT B.<\/p>\n
1.9 “Non-Disclosure Agreement”<\/p>\n
“Non-Disclosure Agreement” means the Mutual Non-Disclosure and Confidentiality
\nAgreement between the parties and attached hereto as EXHIBIT C.<\/p>\n
1.10 “Warranty Period”<\/p>\n
“Warranty Period” — a period starting on the date of Functional Verification as
\napplicable per Limited Equipment Warranty coverage described herein this
\nContract.<\/p>\n
1.11 “Business Plan”<\/p>\n
“Business Plan” – The Business Plan of the Project details Project
\nImplementation Schedule, financial parameters of the Strategic Alliance,
\nPurchase and License Agreement and the Financial Returns for each party of this
\nStrategic Alliance and attached hereto as EXHIBIT D.<\/p>\n
1.12 “Training”. Exhibit “F”<\/p>\n
-2-<\/p>\n
STRATEGIC ALLIANCE [*] CONTRACT NO. HT 112300
\nTELECO NETWORK EXPANSION<\/p>\n
1.13 “Final Acceptance Certificate”. Exhibit “G”.<\/p>\n
2 TERM<\/p>\n
The term of this Agreement shall commence on the Effective Date and unless
\notherwise terminated as provided herein, shall continue in full force and
\neffect.<\/p>\n
3 PROJECT SCOPE<\/p>\n
The purpose of this Contract is to rule and establish the conditions, rights,
\nobligations, responsibilities and other related stipulations under which both
\nparties will jointly develop a Project for a minimum of [*] wireless access
\nlines that will allow TELECO to provide Access Services to its residential and
\nbusiness customers throughout the Republic of Haiti.<\/p>\n
(i), as a key pre-requisite to accomplish the investment and financial
\ncommitments being made by the Company to execute the planned project as per the
\nparameters set forth in the Business Plan and TELECO’s objectives for the
\ndeployment of new telephone lines to provide telephone services in the
\ndesignated serving areas where pent-up demand exists, (ii) and derive the
\nnecessary revenues from these that will make the expansion feasible. The Project
\nshall be developed in accordance to the Business Plan included in EXHIBIT D of
\nthis Agreement.<\/p>\n
To develop the Project both parties agreed that Company will engineer,
\nmanufacture or supply, install, test and put into service telecommunication
\nequipment, and related services including but not limited to the sale of the
\nservices to end users and the Software (as defined below) as described in
\nEXHIBIT A (“Equipment and Services”) at Company, Inc.’ prices listed in EXHIBIT
\nA. The equipment could be installed wherever it is required and agreed by
\nCompany, as per Company standards practices and recommendations, in the Buyer
\npremises or third party locations. All charges and\/or fees related to renting of
\nspace, facilities, rights of ways, civil works, expansions to existing
\ntelecommunications infrastructure needed to accommodate the equipment\/solution
\nfor this project, from third parties, as needed to install the contracted
\nequipment, will be charge to [*] and their cost properly adjusted in the
\ncontract value as relevant data becomes available from the planned field
\nengineering surveys completion.<\/p>\n
[*] will purchase and pay for such equipment, services, land, facilities, rights
\nof ways, licenses, and other necessary project elements as agreed in this
\nContract, its annexes or any amendements to them.<\/p>\n
Prices for installation and related charges are subject to change due to [*].
\nBuyer agrees to pay all such additional charges as invoiced by Company.<\/p>\n
During the execution of Contract both parties could agree on additional
\nextensions to the Contract Scope at the then prevailing prices. Such extensions
\ncould include additional equipment, services, new functionalities of the
\nequipment not included in this project and currently inherent to the offered
\nequipment or new features to be developed in the future by the Company.<\/p>\n
-3-<\/p>\n
STRATEGIC ALLIANCE [*] CONTRACT NO. HT 112300
\nTELECO NETWORK EXPANSION<\/p>\n
Buyer, as National Telecommunications Operator of Haiti, shall provide all of
\nits infrastructure and resources to facilitate the Project Development.<\/p>\n
Company will provide turnkey network deployment as described and agreed to in
\nthis Agreement, its Annexes and the Proposal, including Product and Services as
\ndetailed in EXHIBIT A.<\/p>\n
The scope of contract may be extended by mutual agreement of the parties. The
\nterms and conditions of such extension(s) shall be made through amendments to
\nthe original contract.<\/p>\n
4 PROJECT BUSINESS PLAN AND SCHEDULE<\/p>\n
Equipment will be deployed in phases, [*]. Deployment is as per scheduled as
\ndetailed in EXHIBIT E.<\/p>\n
This contract is based on the Business Plan presented in EXHIBIT D, “Business
\nPlan”. The Business Plan is a fundamental part of the Contract. It details the
\nProject Commercial Milestones, the financial parameters that will rule the
\nContract and it establishes the expected financial returns agreed and projected
\nby both parties. One of the key purposes of this Contract and Business Plan is
\nto ensure the success of the project and its financial returns on the investment
\nin order to ensure the successful execution of the Project both from an economic
\nand financial standpoint. This signifies that the revenue streams generated from
\nthe initial phases of the project, shall provide the funding needed to carry out
\nthe project subsequent phases to achieve the Project Plan stated Goals. In
\naccordance with the aforementioned and to ensure the actual compliance of the
\nBusiness Plan in practice, every [*], TELECO and Company will review the actual
\nresults yielded by Project against the Business Plan goals and will agree on the
\nnecessary adjustments warranted to ensure that Company obtains the payments for
\nthe goods and services contracted by TELECO under the terms of this Agreement
\nand the financial returns or charges established in the Business Plan as well as
\nthe benefits due to TELECO. If for any reason these financial returns are not as
\nprojected in the Business Plan TELECO will provide the additional funding that
\nguarantees the payment of product and services as well as the financial product
\nand charges due to Company.<\/p>\n
Prior to delivery, Company, Inc. reserves the right to make substitutions,
\nmodifications and improvements to the Equipment, provided that such
\nsubstitution, modification or improvement shall not materially affect
\nperformance in the application originally agreed to with Customer.<\/p>\n
5 PURCHASE ORDERS<\/p>\n
5.1 Order Submission<\/p>\n
BUYER will purchase and\/or license Products according to the Scope of this
\nStrategic Alliance Agreement by submitting, from time to time as per Project
\nSchedules and Phases indicated in Business Plan and Project Schedule (EXHIBITS D
\nAND E), purchase orders by hard copy or facsimile. Company will accept orders in
\ncompliance with the terms of this contract and will inform BUYER in writing of
\nexpected shipment dates.<\/p>\n
-4-<\/p>\n
STRATEGIC ALLIANCE [*] CONTRACT NO. HT 112300
\nTELECO NETWORK EXPANSION<\/p>\n
All purchase orders submitted by BUYER shall be subject to the terms and
\nconditions of this Agreement. No additional or different provisions appearing
\nanywhere on BUYER’s purchase orders or other correspondence shall be binding on
\nCompany. Any such terms and will be deemed to be stricken.<\/p>\n
6 PRICE, FINANCING AND PAYMENT TERMS<\/p>\n
6.1 Pricing and Shipment<\/p>\n
Prices for the Product and Services purchased and\/or licensed hereunder shall be
\nas described in EXHIBIT A to this Agreement (the “Prices”). Prices for the
\nProduct are in [*]. Unless otherwise specified by Company in writing, the Prices
\nfor the Products [*] any freight, transportation, handling or Services, which
\nare listed, separately as applicable.<\/p>\n
6.2 Taxes, Duties and Levies<\/p>\n
The Prices and\/or any payments or disbursements to Company from this Agreement
\n[*] any customs duties, value added tax, income tax or any other direct or
\nindirect tax, charge, duty, levy or assessment which may be levied or charged by
\nany national, state, local or other governmental authority, agency or
\ninstrumentality of the Republic of Haiti, currently applicable or created in the
\nfuture by any authority of the Republic of Haiti. Any such amounts charged,
\nlevied or assessed, whether withheld at source or otherwise, will be [*] to the
\nprices otherwise chargeable to and payable by BUYER pursuant to this Agreement.<\/p>\n
6.3 Financing and Form of Payment<\/p>\n
Payment of goods, services and other charges due to Company shall be made by
\nTELECO as follows:<\/p>\n
1) Down payment of [*] per cent of the Project Total Contract Value of
\neach individual phase of the [*] Access Lines project payable [*] within [*]
\nfrom Contract Signature.<\/p>\n
2) Payment of Contract remaining balance due to Company shall be paid by
\nTELECO in [*] installments [*] as follows:<\/p>\n
These installments shall come from the total revenues collected from users who
\nsubscribe to access lines provided by the Buyer with this project. Both parties
\nagreed that total revenues would consist of the following:<\/p>\n
a) [*]:<\/p>\n
b) [*].<\/p>\n
c) [*].<\/p>\n
-5-<\/p>\n
STRATEGIC ALLIANCE [*] CONTRACT NO. HT 112300
\nTELECO NETWORK EXPANSION<\/p>\n
d) [*].<\/p>\n
e) [*].<\/p>\n
Total revenues have been estimated in the Business Plan based on conservative
\nfigures below the actual applicable values. The actual values could be higher
\nand will depend on the official tariffs approved and applicable in Haiti by
\nTELECO. All revenues collected by TELECO shall be automatically deposited when
\nsubscriber pays for their services in an escrow account at a mutually agreeable
\ninternational financial institution whose joint beneficiaries shall be the
\nCompany and Buyer. At the end of each [*], the Company and TELECO will review
\nthe balance of the escrow account. The Company shall be entitled to collect the
\n[*] installments owed to Company as per the mutually agreed project
\nimplementation schedule. The escrow account shall be kept with a minimum balance
\nequivalent to the amount of a [*] installment and the remaining funds in the
\naccount shall be disbursed to TELECO. If for any reason, the funds deposited in
\nthe escrow account are not sufficient to cover the [*] contract installment,
\nTELECO shall pay from its own funding the difference owed to the Company within
\na period of [*] from payment due date.<\/p>\n
As a guarantee to Company efforts and investment, Buyer shall provide Company an
\nacceptable Guarantee acceptable to Company, such as any of the following: I) an
\n[*] L\/C for an amount [*] in a first rate international financial institution
\nacceptable to Company, ii) IOU’s with the collateral of [*], iii) any other form
\nof guarantee acceptable to Company. The amount of the herewith indicated
\nguarantee shall be equivalent to [*] installments of the project value in favor
\nof Company. This guarantee shall allow partial disbursements that could be
\nexercised by Company if Buyer delays the payment of any outstanding balance for
\nmore than [*]. If disbursements are applied to Guarantee. Buyer shall reinstate
\nthe original value of L\/C and\/or guarantee within [*] of notification from
\nCompany. Failure to reinstate the value of this guarantee will become a breach
\nof contract; in such case Company could exercise the L\/C and\/or Guarantee and
\ncollect by any means the balance due from the entire contract. This guarantee
\nshall cover the total contract value and shall be valid during the contract
\nterm. In addition, Government of Haiti Guarantee should be issued by Banc
\nNationale D’Haiti, majority owner of TELECO, in favor of Company to serve as
\nguarantee to the contracted project.<\/p>\n
All payments are non-refundable.<\/p>\n
7 ADVANCE PAYMENT GUARANTEE<\/p>\n
Company shall provide for the benefit of BUYER an advance payment guarantee
\nissued by a first-rate international bank, in the amount of the Initial Payment
\nas set forth in Article 6.3, (the “Guarantee”). The Guarantee shall become
\neffective upon Company’s receipt of the Initial Payment due from BUYER under the
\nterms of Section 6, and shall expire upon shipment of the Product, unless
\nextended by mutual written agreement of the parties.<\/p>\n
-6-<\/p>\n
STRATEGIC ALLIANCE [*] CONTRACT NO. HT 112300
\nTELECO NETWORK EXPANSION<\/p>\n
8 LIQUIDATED DAMAGES<\/p>\n
In the event Company fails to complete deployment to a sufficient degree to
\nallow Commercial Service to begin by the date specified in the mutually agreed
\nproject plan, BUYER may assess against Company liquidated damages, for each week
\nof such delay, in the amount of [*] of the total price under the applicable
\npurchase order for the delayed item or items, provided that the total amount of
\nliquidated damages that may be assessed under this Agreement shall not exceed
\n[*] of the total Product price set forth in the applicable purchase order, and
\nfurther provided that the assessment of such liquidated damages by BUYER shall
\nbe its [*] remedy for Company’s delay in preparing the BUYER network for
\ncommercial service by the date specified in the mutually agreed project plan.<\/p>\n
Notwithstanding the foregoing provisions of this Section, Company shall not be
\nresponsible for any delay or failure to deliver the Product, and BUYER shall not
\nbe entitled to any liquidated damages or termination rights, to the extent such
\ndelay or failure results from: (a) any delay or failure by BUYER or any third
\nparty not under Company’s control to perform its obligations under or related to
\nthis Agreement or any of its Exhibits or attachments; or (b) any force majeure
\nevent.<\/p>\n
9 INSTALLATION AND ACCEPTANCE<\/p>\n
9.1 Site Availability<\/p>\n
BUYER shall prepare within the timeframe agreed to by the parties site(s) for
\nthe installation of the Product that meets the environmental and other
\nrequirements of the Product for its installation as specified by Company. BUYER
\nshall provide access to the sites and the Product for Company’s personnel and
\nother authorized representatives.<\/p>\n
9.2 Installation<\/p>\n
Company or its subcontractors shall install the Product at the site(s). BUYER
\nundertakes and agrees to use its best efforts to avoid delay in the commencement
\nor performance of the installation by any act or omission of the BUYER or any of
\nBUYER’s employees, agents or representatives.<\/p>\n
The Buyer shall, [*], on the signing of this agreement, and at all times
\nthereafter during the period of project execution hereunder be responsible for
\nthe following, including site preparation, clean-up, site security, power,
\nequipment warehousing, provide unrestricted access to network facilities and
\nequipment sites.<\/p>\n
(a) Allow employees or agents of Company, Inc. free access to premises and
\n facilities where the Equipment is warehoused, existing network
\n facilities and sites where contracted equipment will be installed at
\n all hours consistent with the requirements of the installation.<\/p>\n
(b) ENVIRONMENTAL – Assure that the premises will meet all temperature,
\n humidity controlled, air-conditioned, and other environmental
\n requirements set forth in the applicable <\/p>\n
-7-<\/p>\n
STRATEGIC ALLIANCE [*] CONTRACT NO. HT 112300
\nTELECO NETWORK EXPANSION<\/p>\n
Equipment specifications and will be dry and free from dust and in such
\n condition as not to be injurious to the employees or agents of Company,
\n Inc. or the Equipment to be installed.<\/p>\n
(c) MECHANICAL – Provide all patching, painting, concrete openings,
\n conduits, ducts, floors, wall s and ceilings reinforcements and\/or
\n modifications, as deemed necessary to house the contracted equipment,
\n or other mechanical modifications pertinent to this installation as
\n required.<\/p>\n
(d) ELECTRICAL – Provide ample electric current of proper voltage for any
\n necessary purpose suitably terminated in rooms or any places where
\n equipment is to be installed, including but not limited to poles and
\n towers, where it is required. Provide properly ground copper conductor
\n of ample capacity (minimum #6 AWG) at the Equipment locations. Provide
\n the required – 48vDc power feeds and 120\/240 VAC power feeds, all
\n separately fused outlets, as may be required per individual equipment
\n site.<\/p>\n
(e) Provide for the termination of any existing service agreement and for
\n the removal of any existing equipment and cable, as required.<\/p>\n
(f) Provide suitable and easily accessible floor space, as well as secured
\n storage, to permit storing adjacent to where Equipment will be used,
\n and for secure storage of tools, test sets, and employee’s personal
\n effects for the duration of project.<\/p>\n
(g) APPROVALS – Buyer shall be responsible for the timely and proper
\n securing of all permits, licenses, rights of ways, consents, including
\n landlords, issuance of frequency spectrum operating licenses and
\n approvals from the corresponding regulatory authorities, i.e. CONATEL,
\n legal requirements and fees thereof associated in connection with these
\n for the acquisition, installation and operation in its network of the
\n contracted Equipment.<\/p>\n
(h) Buyer specifically agrees to indemnify and hold Company, Inc. harmless
\n from all liability and costs arising from the Buyer and its
\n contractors, subcontractors and employees for site preparation efforts
\n or for the latent conditions of the site.<\/p>\n
Company, Inc. will install the contracted network access Equipment at the
\ndesignated network points of presence (POPs) indicated in the contract technical
\nschedules and revisions thereof that may result from the network planning, field
\nand site surveys to be conducted. Company, Inc., however, will not be
\nresponsible for performing civil works, i.e., construction, modifications, power
\ndistribution, painting, plastering, ducts, existing equipment relocations,
\nrepairs to Buyer’s premises resulting from the installation of the contracted
\nEquipment except as expressly agreed by Company in the contract technical
\nschedules. Buyer hereby holds Company, Inc. harmless from any such damage to
\nBuyer’s property.<\/p>\n
-8-<\/p>\n
STRATEGIC ALLIANCE [*] CONTRACT NO. HT 112300
\nTELECO NETWORK EXPANSION<\/p>\n
It is the sole responsibility of the Buyer to perform the installation of
\nsubscriber premises equipment, its proper alignment, and service activation as
\nline and\/or Buyer contracts services with its subscribers.<\/p>\n
Both Buyer and Company, Inc. shall complete the installation services in
\naccordance with Company, Inc.’ standard installation practices and
\nrecommendations. Company, Inc. shall perform acceptance testing according to
\nCompany standards and specifications on the installed Equipment and Buyer agrees
\nto monitor said testing. Upon completion thereof, as described above, Company,
\nInc. shall notify Buyer that the Equipment has been installed and operates in
\naccordance with the criteria set forth in Company, Inc. Specifications.<\/p>\n
If the Equipment does not perform according to the acceptance test criteria and
\nCompany, Inc. after having been notified in writing of the defects fails to cure
\nsuch defect within [*] days of receipt of such notice (“Cure Period”), Buyer has
\nthe right to return the Equipment [*] if such Equipment is shipped to Company,
\nInc. no later than [*] days after expiration of the Cure Period.<\/p>\n
9.3 EQUIPMENT ACCEPTANCE<\/p>\n
The commercial in-service handling of first call at the end of each deployment
\nphase described in the Price Summary contained in Exhibit ‘A” shall constitute
\nthe acceptance by Buyer of the equipment delivered.<\/p>\n
Company and BUYER shall accordingly execute the Acceptance Certificate forthwith
\nat the cunclusion of each deployment phase, substantially in the form shown in
\nExhibit G.<\/p>\n
10 OBLIGATIONS AND RIGHTS OF PARTIES<\/p>\n
OBLIGATIONS OF COMPANY:<\/p>\n
a) Engineer, deliver, install and to put in operation the network
\n expansion and necessary and suitable equipment with all its accessories
\n contracted by the Buyer, and its interconnection, according to
\n parameters and conditions setforth in this Contract.<\/p>\n
b) Furnish new equipment of most recent version, good quality and
\n compatible with the existing PSTN network of Buyer as per international
\n accepted standards.<\/p>\n
c) Train and transfer the necessary knowledge to the qualified TELECO
\n personnel to operate, exploit and maintain the equipment that will be
\n provision under the terms of the contract.<\/p>\n
d) Provide the technical services required to perform the design and
\n commissioning of the proposed network expansion solution, excluding the
\n installation and placement in service of the subscriber premises
\n equipment and necessary wire cable plant. Drop wire installation and
\n modifications or installation at customer premises are to be carried
\n out and at the cost of [*] Company will provide and install the
\n necessary cable between the RPs and RPCs.<\/p>\n
-9-<\/p>\n
STRATEGIC ALLIANCE [*] CONTRACT NO. HT 112300
\nTELECO NETWORK EXPANSION<\/p>\n
OBLIGATIONS OF BUYER:<\/p>\n
a) Make available to the Company all existing equipment and network
\n infrastructure required to perform the contracted equipment and
\n expansions, including but not limited to: PSTN facilities, equipment
\n sites, switching systems, PDH and SDH transmission network, inclusive
\n the Banc Nationale D’Haiti SDH points of presence and associated
\n transmission backbone equipment, ducts, poles, buildings, cable plant,
\n radio towers, rights of way, as well as, all the necessary technical
\n engineering information, facilities, licenses and approvals needed to
\n deploy and interconnect the contracted solution.<\/p>\n
b) Under the terms of the agreement the Buyer or its designated commercial
\n agent is solely responsible for all promotions, sales-marketing,
\n commercial infrastructure, including points of sales and personnel
\n necessary to promote and commercialize the lines and services
\n contracted within the Republic of Haiti.<\/p>\n
c) Put in operation the structure and equipment supplied by the Company to
\n operate, exploit and to maintain the equipment network expansion
\n contracted, including installation of equipment at end-user premises,
\n installation and provisioning of primary and secondary drop wire cable
\n plant as well as internal installation and repairs at customer
\n premises, training of end-user, Buyer service, billing and collections
\n activities necessary to conduct the marketing, sale, installation,
\n service processing, billing and collection activities of the
\n lines\/services contracted.<\/p>\n
d) Insure, by its own account and risk, the contracted equipment,
\n personnel and goods deployed in its facilities, stored in its
\n warehouses and under the control of its personnel against all the
\n possible risks.<\/p>\n
e) The Buyer is solely responsible to ensure through its best efforts,
\n capacity and experience the optimun profitability, continuity and
\n regularity of the service, including lines and services sold by the
\n Company and\/or its designated commercial agent and disburse all
\n collected revenues due to Company\/Agent for the sales of the lines and
\n services.<\/p>\n
f) Permit the use of its installations when required by the Company to
\n perform equipment installations, interconnections, testing, and any
\n other activity related to the implementation\/operation of the project.<\/p>\n
g) Provision of the services to the users in the coverage zones
\n established; and to the billing and collections for the corresponding
\n connection fees, monthly charges, user fees and other charges from the
\n provision of services to the users.<\/p>\n
h) Keep separate accounting and financial records of the project according
\n with international accounting practices.<\/p>\n
-10-<\/p>\n
STRATEGIC ALLIANCE [*] CONTRACT NO. HT 112300
\nTELECO NETWORK EXPANSION<\/p>\n
i) Perform, timely, according to project schedule and engineering the
\n adequate extensions to existing equipment to interconnect the project
\n with the existing infrastructure.<\/p>\n
j) Buyer agrees to grant the Company and\/or its designated agent full
\n rights and privileges to conduct marketing and promotional activities
\n and use of information and the facilities related to this contract to
\n showcase and demonstrate its equipment capacities and attributes to
\n other potential clients.<\/p>\n
k) Buyer agrees to grant Company the necessary Government of the Republic
\n of Haiti importation exemptions free of any import duties, levies and
\n restrictions to import test equipment, tools, vehicles, computing
\n equipment, office equipment, miscellaneous hardware, and other elements
\n needed for the turnkey implementation of the contracted project.<\/p>\n
l) Buyer agrees to facilitate Company personnel and its sub-contractors
\n and respective family members the necessary entry visas and work
\n permits to live and work in the Republic of Haiti during the course of
\n the project.<\/p>\n
m) Buyer agrees to reinvest in the subsequent project phases, the revenues
\n from project’s revenue generation.<\/p>\n
RIGHTS OF BUYER:<\/p>\n
a. Exploit the equipment and keep the financial product from the revenue
\n of the equipment once the financing of project and all other related
\n charges has been covered.<\/p>\n
b. Participate in the project field installation activities to obtain
\n knowledge of the equipment and of the processes of installation and
\n placement in operation, for which TELECO will appoint personnel
\n properly qualified under the supervision of the Company.<\/p>\n
c. Hands-on training to receive technology and knowledge transfer for the
\n operation, exploitation and corrective and preventive maintenance of
\n the contracted equipment\/solution.<\/p>\n
RIGHTS OF COMPANY<\/p>\n
a) Access to Buyer premises to install the equipment, perform equipment
\n test, interconnections or any other activities related to the project
\n execution and integration to the existing network.<\/p>\n
b) Company or a firm representing company must have full access to
\n accounting files and Accounting Books of Project and to all information
\n related with the Project. Company could conduct audits to the project’
\n operations. To do such audits, Company reserves the right to do it
\n directly or through a specialized firm that will be hired for such
\n purpose. In such cases, Buyer shall be notified [*] before such audits
\n are going to be conducted. All project information shall be
\n confidential and could not be released without the written consent of
\n both parties.<\/p>\n
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STRATEGIC ALLIANCE [*] CONTRACT NO. HT 112300
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c) To receive the payments, to cover the investment made in equipment and
\n services as well as the financing charges and any other charges related
\n to the project, from the total revenues deposited in the escrow account
\n and collected from the subscribers connected to the installed equipment
\n with the project.<\/p>\n
d) To receive interest at an interest rate [*] for any delayed payment
\n whose delay exceeds [*] days after payment due date.<\/p>\n
11 PROJECT COORDINATION COMMITTEE AND EXECUTIVE BOARD<\/p>\n
Company and Buyer agree to install [*] after Contract Signature a Project
\nCoordination Committee “The Committee” whose main purpose will be to coordinate
\nall activities related to project execution and performance and solve any
\ndifferences that may arise during contract execution. The Committee will consist
\nof one representative from TELECO and one representative from Company. The
\nCommittee shall be responsible for the development and coordination of
\noperational aspects, commercial aspects and the development of procedures to
\neffectively provide service to the end users as well as any action required to
\nsecure the success and profitability of the project. Any action or
\nrecommendation from the Committee shall be based on the Contract Terms and
\nConditions.<\/p>\n
The Committee shall meet at least once every week and produce a weekly report or
\non a per call basis as required by any of the two members appointed to it. For
\neach of the members, each party shall appoint a substitute that shall represent
\nthe principal in the event that this one cannot assist to any specific meetings.
\nExtraordinary meetings could be call by either party, meeting place and date
\nshall be agreed, if no agreement is mutually reach, meeting shall be enforce to
\nbe held 8 calendar days after written notification of request of meeting.<\/p>\n
If any matter is not resolved by the Committee, the General Director of TELECO
\nor its designated representative and the Sales Vice president of Company or its
\ndesignated representative shall constitute the Executive Board “The Board” of
\nthe Project and will solve any matter regarding this. In any event any
\nrecommendation or resolution of the Committee, which involves or commits money
\nbeyond [*] from either side or a significant deviation from deliverables
\n(schedule or functions) or any expansion beyond [*] shall be approved by the
\nBoard.<\/p>\n
12 FUNCTIONAL VERIFICATION<\/p>\n
Company shall perform functional Verification tests in accordance with the
\nFunctional Verification Test procedure to be provided by Company prior to the
\ncommencement of the tests. The BUYER undertakes and agrees to ensure that there
\nwill be no delay in the commencement or performance of the Functional
\nVerification by any act or omission of the BUYER or any of BUYER’s employees,
\nagents or representatives.<\/p>\n
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STRATEGIC ALLIANCE [*] CONTRACT NO. HT 112300
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13 LICENSES<\/p>\n
Company hereby grants BUYER a [*] License to use the Software and the
\nDocumentation solely in connection with the Products purchased by BUYER pursuant
\nto this Agreement, at the Site(s) and for the purpose and in the manner for
\nwhich the Product was designed and intended by Company, all in accordance with
\nthe software license provisions set forth in EXHIBIT B attached hereto. In no
\nevent shall BUYER have the right to market, sell, lease, license, sublicense,
\nassign, distribute or otherwise transfer the Products or any part thereof
\nwithout the express prior written consent of Company.<\/p>\n
BUYER shall not remove nor alter, nor permit the removal or alteration of, any
\nCompany or third-party trademarks, copyright notices, tags, labels or other
\nidentifying markings placed on any Products, products, packages or containers
\nprovided hereunder without the prior written consent of Company. In no event
\nshall BUYER have the right to market, sell, lease, license or otherwise
\ndistribute the Products.<\/p>\n
14 TITLE AND RISK<\/p>\n
Title to the Product shall pass to BUYER upon Company’s shipment of the
\nProduct(s) to BUYER [*]. Risk of loss to the Product shall pass to BUYER in
\naccordance with [*].<\/p>\n
Title to all Software and Documentation shall remain vested in Company. All
\nintellectual property rights to the Product, Documentation, Applications and
\nSoftware or any part thereof, including without limitation all patents,
\ntrademarks, trade names, copyrights, designs, know how and trade secrets shall
\nremain vested in Company and its licensors at all times.<\/p>\n
15 WARRANTY<\/p>\n
15.1 Limited Warranty. <\/p>\n
Company warrants that the non-Software Products, as delivered, will be free from
\ndefects in materials and workmanship during the Warranty Period.<\/p>\n
This warranty will apply to hardware items directly manufactured by Company
\nexcept the telephone subscriber terminal equipment, shall expire after [*] from
\nthe date of shipment or [*] from the date of functional verification is
\ncompleted as defined herein this contract’s Clause 1 Definitions, numerals 1.1
\n“Functional Verification” and 1.2 “Commercial Service” and Clause 12 “Functional
\nVerification”. However, with respect to the telephone terminal equipment, the
\nCompany agrees to provide the Customer a [*] additional supply of terminals over
\nthe purchased quantity to support the warranty of units found defectived
\ndirectly attributed to manufacturing defects.<\/p>\n
The warranty service shall be administered in accordance with Company, Inc.
\nrecommendations and practices in effect at the time of shipment. Buyer shall
\nnotify Company, Inc. in writing immediately upon discovery of any defects within
\nthe warranty period for return authorization and instructions. <\/p>\n
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STRATEGIC ALLIANCE [*] CONTRACT NO. HT 112300
\nTELECO NETWORK EXPANSION<\/p>\n
Upon receipt of the returned Equipment prepaid by Buyer, Company, Inc.’ sole
\nobligation shall be to repair and\/or replace the part found to be defective, at
\nits option. Replacement Equipment may be new, or repaired. Returned replaced
\nEquipment shall become Company, Inc.’ property. Replacement Equipment shall be
\nwarranted for the unexpired portion of the returned Equipment’s warranty.<\/p>\n
The foregoing warranty is contingent upon proper use of the Products in the
\napplications for which they were intended. This warranty shall not apply to
\ndefects or failures to a Product which was subjected to: (i) accident, neglect
\nor misuse; (ii) failure of or defect in electrical power, external electrical
\ncircuitry, air-conditioning or humidity control; (iii) the use of software or
\nProduct not provided by Company or approved in writing by Company for use with
\nthe Product; (iv) unusual stress; (v) improper use or maintenance; (vi)
\nelectro-static discharges; (vii) unusual operational or environmental stress or
\n(vii) modification, adjustment, repair, service or installation by any party
\nother than Company, or persons authorized and certified by Company.<\/p>\n
Company’s sole liability and BUYER’s exclusive remedy shall be limited to
\nrepair, replacement, credit or refund, [*]. [*]shall pay all freight charges for
\nshipment of any replacement Product to BUYER during the Warranty Period.
\nReplacement or repair of a Product shall not extend the original warranty for
\nthat Product or repair part.<\/p>\n
15.2 Disclaimer of Warranties<\/p>\n
COMPANY MAKES NO WARRANTIES OR CONDITIONS, EXPRESS, STATUTORY, IMPLIED, OR
\nOTHERWISE, AND COMPANY SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES AND
\nCONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR
\nPURPOSE. NOTWITHSTANDING THE FOREGOING, COMPANY DOES NOT EXCLUDE LIABILITY TO
\nTHE EXTENT THAT SUCH LIABILITY MAY NOT BE EXCLUDED OR LIMITED BY LAW.<\/p>\n
15.3 Inherently Dangerous Applications. <\/p>\n
THE PRODUCTS ARE NOT AUTHORIZED FOR USE AS CRITICAL COMPONENTS IN LIFE SUPPORT
\nDEVICES OR SYSTEMS OR FOR USE IN AVIATION, NUCLEAR OR ANY OTHER INHERENTLY
\nDANGEROUS APPLICATION WITHOUT THE EXPRESS WRITTEN APPROVAL OF THE MANAGING
\nDIRECTOR OF COMPANY. LIFE SUPPORT DEVICES OR SYSTEMS ARE THOSE WHICH ARE
\nINTENDED TO SUPPORT OR SUSTAIN LIFE AND WHOSE FAILURE TO PERFORM CAN REASONABLY
\nBE EXPECTED TO RESULT IN A SIGNIFICANT INJURY TO THE USER. CRITICAL COMPONENTS
\nARE THOSE COMPONENTS WHOSE FAILURE TO PERFORM CAN REASONABLY BE EXPECTED TO
\nCAUSE FAILURE OF A LIFE SUPPORT DEVICE OR SYSTEM OR AFFECT ITS SAFETY OR
\nEFFECTIVENESS.<\/p>\n
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STRATEGIC ALLIANCE [*] CONTRACT NO. HT 112300
\nTELECO NETWORK EXPANSION<\/p>\n
15.4 Product Returns<\/p>\n
In order to return Product that BUYER believes is defective, BUYER shall (i)
\nnotify Company in writing that such Product is believed to be defective and
\nfurnish a detailed explanation of any alleged problem; (ii) obtain a RMA number
\nfrom Company for the alleged defective Product; and (iii) within [*] of receipt
\nof the RMA number, return such Product to Company, [*], with the RMA number
\nprominently attached to Company’s facility in Miami, U.S.A. or such other
\nlocation as Company may designate in writing in each case during the Warranty
\nPeriod.<\/p>\n
BUYER shall pay shipping charges for returned Product shipped to Company and
\nCompany shall pay shipping charges for returned product shipped to BUYER.<\/p>\n
16 INDEMNIFICATION<\/p>\n
16.1 Indemnity. <\/p>\n
BUYER agrees that Company has the right to defend, or at its option to settle,
\nand Company agree, at its own expense, to defend or at its option to settle, any
\nthird party claim, suit or proceeding (collectively, “Action”) brought against
\nBUYER alleging the Products infringe any United States patent, copyright or
\nTrademark in existence as of the Effective Date and enforceable in the BUYER’s
\ncountry, subject to the limitations hereinafter set forth.<\/p>\n
Company will have sole control of any such Action or settlement negotiations,
\nand Company agrees to pay, subject to the limitations hereinafter set forth, any
\nfinal judgment entered against BUYER on such issue in any such Action defended
\nby Company. BUYER agrees that Company will be relieved of the foregoing
\nobligations unless BUYER notifies Company promptly in writing of such Action,
\ngives Company authority to proceed as contemplated herein, and gives Company
\nproper and full information and assistance to settle and\/or defend any such
\nAction. If it is adjudicatively determined, or if Company believes, that the
\nProducts, or any part thereof, infringe any patent, copyright or trademark, or
\nif the sale or use of the Products, or any part thereof, is, as a result,
\nenjoined, then Company may, at its election, option, and expense: (i) procure
\nfor BUYER the right under such patent, copyright or trademark to sell or use, as
\nappropriate, the Products or such part thereof; or (ii) replace the Products, or
\npart thereof, with other noninfringing suitable Products or parts; or (iii)
\nsuitably modify the Products or part thereof; or (iv) remove the Products, or
\npart thereof, terminate distribution or sale thereof and refund the payments
\npaid by BUYER for such Products less a reasonable amount for use and damage.
\nCompany will not be liable for any costs or expenses incurred without its prior
\nwritten authorization, or for any installation costs of any replaced Products.<\/p>\n
16.2 Limitations<\/p>\n
Notwithstanding the provisions of Section 14.1 above, Company has no liability
\nto BUYER for (i) any infringement of patent or copyright claims alleging
\ninfringement by completed equipment or <\/p>\n
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STRATEGIC ALLIANCE [*] CONTRACT NO. HT 112300
\nTELECO NETWORK EXPANSION<\/p>\n
any assembly, circuit, combination, method or process in which any of the
\nProducts may be used but not covering the Products standing alone; (ii) any
\ntrademark infringements involving any marking or branding not applied by or
\nrequested by Company, or involving any marking or branding applied by Company at
\nthe request of BUYER; or (iii) the modification of the Products, or any part
\nthereof, unless such modification was made by Company, where such infringement
\nwould not have occurred but for such modifications.<\/p>\n
DISCLAIMER. COMPANY’S LIABILITY ARISING OUT OF OR RELATING TO THIS SECTION 14
\nSHALL NOT EXCEED THE AGGREGATE AMOUNTS PAID BY BUYER TO COMPANY FOR THE
\nALLEGEDLY INFRINGING PRODUCTS THAT ARE THE SUBJECT OF THE INFRINGEMENT CLAIM.
\nTHE FOREGOING PROVISIONS OF THIS SECTION 14 STATE THE ENTIRE LIABILITY AND
\nOBLIGATIONS OF COMPANY AND THE EXCLUSIVE REMEDY OF BUYER AND ITS CUSTOMERS, WITH
\nRESPECT TO ANY ALLEGED PATENT, COPYRIGHT OR TRADEMARK INFRINGEMENT BY THE
\nPRODUCTS OR ANY PART THEREOF.<\/p>\n
17 LIMITATION OF LIABILITY<\/p>\n
Notwithstanding any other clause in this Agreement, in no event will Company be
\nliable for any special, indirect, incidental, punitive or consequential damages
\n(including without limitation any damages for loss of data, use or profits)
\narising from or in connection with this Agreement or the use or performance of
\nany Product whether in an action based on contract, tort or any other legal
\ntheory, whether or not Company has been notified of the possibility thereof.<\/p>\n
Notwithstanding any other clause in this Agreement, in no event will Company’s
\ntotal aggregate liability for any damages arising from or in connection with
\nthis Agreement or the use or performance of any Product whether in actions based
\non contract, tort or any other legal theory, and whether or not Company has been
\nnotified of the possibility thereof, exceed the price paid by the BUYER for the
\nrelevant item or component of Product giving rise to the claim amortized on a
\nstraight line basis over [*] from the date of the applicable purchase order.<\/p>\n
18 TERMINATION<\/p>\n
This Agreement may be terminated by either party:<\/p>\n
a) if the other party is in material breach of this Agreement and fails to cure
\nsuch breach within [*] of receiving written notice of the breach. Provided that
\nthe breaching party continues to make diligent and good faith efforts to cure
\nthe breach, the breaching party shall be granted a [*] extension of time to cure
\nthe breach.<\/p>\n
b) Upon [*] prior written notice if any of the following circumstances remain
\nuncured: (i) if the other party becomes insolvent or unable to pay its debts in
\nthe ordinary course of its business; (ii) if a voluntary or involuntary petition
\nunder applicable bankruptcy laws is filed by or against the other <\/p>\n
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STRATEGIC ALLIANCE [*] CONTRACT NO. HT 112300
\nTELECO NETWORK EXPANSION<\/p>\n
party; (iii) if a receiver is appointed for the business affairs of the other
\nparty or the other party makes an assignment for the benefit of creditors; or
\n(iv) if the other party liquidates or ceases doing business as a going concern.<\/p>\n
Any provision of this Agreement, which by its nature survives termination, shall
\nsurvive termination of this Agreement.<\/p>\n
19 TRAINING<\/p>\n
Company shall offer technical training for BUYER’s personnel in accordance with
\nEXHIBIT F<\/p>\n
20 GOVERNING LAW AND REGULATIONS<\/p>\n
BUYER agrees to comply with all relevant laws, export or otherwise of the United
\nStates to assure that the Product and Documentation are not exported or
\notherwise transferred in violation of such laws. Prior to exporting or
\ntransferring the Product or Documentation, BUYER shall obtain Company’s written
\nconsent and a license from the U.S. Department of Commerce and\/or any other
\nappropriate agency of the U.S. Government, as required.<\/p>\n
21 GENERAL PROVISIONS<\/p>\n
21.1 No Liability for Other Party’s Acts<\/p>\n
Neither party shall be liable for any losses, injuries, or damages caused by or
\nattributable to the acts and\/or omissions of the other party, its employees, or
\nits agents.<\/p>\n
21.2 Independent Contractors<\/p>\n
The parties hereto agree that they are independent contractors. This Agreement
\nshall not be construed to create or result in a partnership or joint venture
\nbetween the parties hereto, nor to make either party the agent of the other
\nparty. This Agreement shall not create any third party beneficiary rights.<\/p>\n
21.3 Notices<\/p>\n
Any notices, requests, demands or other communications required or permitted
\nunder this Agreement shall be in writing and shall be sufficiently communicated
\nif delivered (i) in person or by means of a recognized courier service, (ii)
\nsent by facsimile with written confirmation sent by regular airmail, or (iii) if
\nsent by registered airmail, return receipt requested, to the recipient party at
\nits address appearing in the preamble hereof or to such other address as such
\nparty may have designated for such purpose by notice previously given to the
\nother party in accordance with the terms hereof.<\/p>\n
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STRATEGIC ALLIANCE [*] CONTRACT NO. HT 112300
\nTELECO NETWORK EXPANSION<\/p>\n
————————————- ——————————————
\nCOMPANY: UTStarcom, Inc.
\n Attn: Russell Boltwood
\n Title: Director Legal Affairs
\n 1275 Harbor Bay Parkway
\n Alameda, Ca. 94502 USA
\n Fax: +1 510 864 8802
\n————————————- ——————————————<\/p>\n
BUYER: Telecommunications D’Haiti S.A.M.
\n Title: Alphonse Inevil
\n Title: Director
\n FAX: +509 45 2775
\n————————————- ——————————————<\/p>\n
Notices shall be deemed to have been received if delivered in person, on the
\nsame day; if sent by facsimile, 24 hours after transmission; if sent by
\nregistered mail, seven (7) days after deposit into the respective national mail
\nProduct.<\/p>\n
21.4 Security Interest<\/p>\n
Company reserves, and BUYER hereby grants to Company, a security interest in [*]
\nuntil Company has received payment in full. BUYER agrees at Company’s request to
\nexecute any and all financing statements and to take such other action as
\nCompany may reasonably request to carry out the intent of this Section.<\/p>\n
21.5 No Assignment<\/p>\n
Neither party may assign its rights and\/or obligations hereunder without the
\nprior written consent of the other party, which consent shall not be
\nunreasonably withheld. Notwithstanding the aforementioned, Company reserves the
\nright and Buyer agrees, that Company could assign to a third party institution
\nits financial rights related to this Agreement.<\/p>\n
21.6 Jurisdiction<\/p>\n
This Agreement shall be governed by, and construed in accordance with, the laws
\nof California, U.S.A., without reference to the conflict of laws provisions
\nthereof.<\/p>\n
21.7 Publicity<\/p>\n
The substance and timing of any written or other public disclosure relating to
\nthis Agreement, in the form of a press release or similar disclosure shall be
\nsubject to the prior written approval of both parties.<\/p>\n
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STRATEGIC ALLIANCE [*] CONTRACT NO. HT 112300
\nTELECO NETWORK EXPANSION<\/p>\n
21.8 No Violation of Applicable Law<\/p>\n
If any provision of this Agreement is held to be invalid under any applicable
\nlaw, such provision shall be ineffective to the extent of such violation without
\ninvalidating other provisions of this Agreement.<\/p>\n
21.9 Conflicting Exhibits<\/p>\n
In the event that any provision of the Exhibits or any other attachments to this
\nAgreement are deemed to be in conflict with the provisions of this Agreement,
\nthe provisions of this Agreement shall control.<\/p>\n
21.10 No Waiver<\/p>\n
Any failure by either party to enforce strict performance by the other party of
\nany provision herein shall not constitute a waiver of the right to subsequently
\nenforce such provision or any other provision of this Agreement.<\/p>\n
21.11 Arbitration<\/p>\n
Any controversy or claim arising out of or related to this Agreement shall be
\nsubmitted to binding arbitration in San Francisco, State of California, U.S.A.
\nin accordance with the then prevailing International Chamber of Commerce (“ICC”)
\nprocedural Arbitration Rules. Any such arbitration shall be held in English
\nbefore a single arbitrator who shall be knowledgeable in telecommunications and
\ndata processing Products. The parties consent and submit to the jurisdiction of
\nthe Courts of the State of California, United States of America in connection
\nwith any award made by the arbitrator(s). Each party shall bear its own costs
\nand expenses (including attorneys’ fees) incurred in connection with this
\nsection.<\/p>\n
21.12 Non-Monetary Remedies<\/p>\n
The parties hereby acknowledge that monetary damages may not be a sufficient
\nremedy for breaches of the licensing provisions set forth in EXHIBIT B or of the
\nNon-Disclosure Agreement annexed hereto as EXHIBIT C and that either party may
\nbe entitled to such injunctive or equitable relief for actions or claims
\nalleging such breach(es) as may be deemed proper by a court of competent
\njurisdiction.<\/p>\n
21.13 Force Majeure<\/p>\n
Neither party shall be liable for damages resulting from its failure to perform
\nits obligations hereunder (other than the obligation to make payments owing to
\nthe other party) if such failure arises out of or in connection with any act of
\nwar, civil disturbance, strikes, earthquake, flood, embargo, failure or
\nunavailability of means of communication, failure or unavailability of means of<\/p>\n
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STRATEGIC ALLIANCE [*] CONTRACT NO. HT 112300
\nTELECO NETWORK EXPANSION<\/p>\n
transportation or any other cause or event of force majeure beyond the
\nreasonable control of the party failing to perform or of its agents and
\ncontractors.<\/p>\n
21.14 Entire Agreement<\/p>\n
This Agreement and the Exhibits hereto constitute the entire agreement between
\nCompany and BUYER relating to the subject matter hereof and supersede all
\nstatements, representations, and understandings, which have been made by either
\nparty or their agents or representatives prior to the execution of this
\nAgreement. No modification of this Agreement shall be binding upon either party
\nunless made in writing and executed on behalf of that party by its duly
\nauthorized representative.<\/p>\n
21.15 May be Executed in Counterparts<\/p>\n
This Agreement may be executed in counterparts and by facsimile such that when
\ntaken together the counterparts shall be deemed a true original of the Agreement
\nbetween the parties.<\/p>\n
21.16 Contract Validity<\/p>\n
The validity of this Contract is contingent upon TELECO obtaining the License
\napproval to operate in the proposed solution frequency band.<\/p>\n
22 EXHIBIT A: SECTION 7 ECONOMIC PROPOSAL AND EQUIPMENT LISTS. <\/p>\n
22.1 Price Validity<\/p>\n
PRICES ARE BASED ON BUYER’S ACQUISITION OF A MINIMUM OF [*] WIRELESS ACCESS
\nLINES AS DEFINED IN THE ANNEXES TO EXHIBIT D.<\/p>\n
Pricing as specified here will be honored as herein listed for the term and
\nconditions set forth in this agreement.<\/p>\n
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STRATEGIC ALLIANCE [*] CONTRACT NO. HT 112300
\nTELECO NETWORK EXPANSION<\/p>\n
IN WITNESS WHEREOF, a duly authorized representative of each party has executed
\nthis Agreement as of the date set forth below.<\/p>\n
COMPANY BUYER<\/p>\n
By: \/s\/ OMAR A. GRAIBE By: \/s\/ JEAN-FRANCOIS CHAMBLAIN
\n ——————————– —————————-
\nName: Omar A. Graibe Name: Jean-Francois Chamblain<\/p>\n
Title: Managing Director, Caribbean Title: Directeur General,
\n and Latin America Telecommunications
\n d’Haiti S.A.M.<\/p>\n
Date: 12\/05\/00 Date: 12\/05\/00<\/p>\n
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STRATEGIC ALLIANCE [*] CONTRACT NO. HT 112300
\nTELECO NETWORK EXPANSION<\/p>\n
EXHIBIT B: END-USER SOFTWARE LICENSE<\/p>\n
The following terms and conditions shall constitute the license (“License”) by
\nwhich software that accompanies, whether by being embedded into a hardware
\nelement or component or by means of a separate media such as diskette or compact
\ndisc, or otherwise (“Software”), is transferred in connection with products
\n(“Products”) supplied by Company (“Licensor”).<\/p>\n
GRANT. The person who acquires any Product (“Licensee”) may install and use the
\nSoftware [*]. Licensee may copy the Software only for backup purposes, provided
\nthat Licensee reproduces all copyright and other proprietary notices that are on
\nthe original copy of the Software.<\/p>\n
RESTRICTIONS. Licensee may not use, copy, modify, or transfer the Software, or
\nany copy thereof, in whole or in part, except as expressly permitted by this
\nLicense. Licensee may not reverse engineer, disassemble, decompile, or translate
\nthe Software, or otherwise attempt to derive the source code of the Software, or
\npermit any other person to do any of the foregoing. Any attempt to transfer any
\nright, duty or obligation in this License is void. Licensee may not rent, lease,
\nloan, resell for profit, or distribute the Software, or any part thereof.
\nLicense may not modify or create derivative works based on the Software in whole
\nor in part.<\/p>\n
OWNERSHIP. The Software is not sold but is only licensed to Licensee for use
\nonly in accordance with this License, and Licensor reserves all rights not
\nexpressly granted to Licensee.<\/p>\n
COPYRIGHT. United States copyright laws and international treaty protect the
\nSoftware. Licensor or its suppliers or licensors owns the Software.<\/p>\n
TERM. This License will terminate immediately upon notice to Licensee if
\nLicensee materially breach any term or condition of this License. Licensee
\nagrees upon termination promptly to destroy the Software and all copies thereof.<\/p>\n
WARRANTY DISCLAIMER. THE SOFTWARE IS PROVIDED TO LICENSEE “AS IS” AND LICENSOR
\nAND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES INCLUDING THE IMPLIED
\nWARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
\nNON-INFRINGEMENT.<\/p>\n
LIMITATION OF REMEDIES. IN NO EVENT SHALL LICENSOR OR ITS SUPPLIERS BE LIABLE TO
\nLICENSEE OR TO ANY OTHER PERSON FOR ANY LOST PROFIT, CORRUPTION OR LOSS OF DATA,
\nINTERRUPTION OF BUSINESS, OR OTHER EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR
\nCONSEQUENTIAL DAMAGE OF ANY KIND ARISING OUT OF THE USE OR INABILITY TO USE THE
\nSOFTWARE, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR
\nDAMAGE AND WHETHER OR NOT SUCH LOSS OR DAMAGE IS FORESEEABLE.<\/p>\n
-22-<\/p>\n
STRATEGIC ALLIANCE [*] CONTRACT NO. HT 112300
\nTELECO NETWORK EXPANSION<\/p>\n
EXPORT LAW. The Software and related technology are subject to U.S. export
\ncontrol laws and may be subject to export or import regulations in other
\ncountries. Licensee agrees strictly to comply with all such laws and regulations
\nand acknowledge that Licensee has the responsibility to obtain such licenses to
\nexport, re-export or import as may be required.<\/p>\n
GENERAL. The laws of the State of California, USA, will govern this License. The
\nFederal and State Courts located in San Francisco County, California, USA shall
\nhave sole jurisdiction over all disputes arising in connection with this
\nLicense. If any provision of this License is held to be unenforceable, that
\nprovision will be removed and the remaining provisions will remain in full
\nforce. This License is the complete and exclusive statement of the agreement
\nbetween Licensee and Licensor and supersedes all prior agreements, oral or
\nwritten, and all other communications between Licensee and Licensor in relation
\nto the subject matter of licensing the Software.<\/p>\n
Licensee agrees to the terms and conditions set forth above in this License as
\nof the effective date of this agreement date stated below:<\/p>\n
23 EXHIBIT C: MUTUAL NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT<\/p>\n
THIS AGREEMENT IS ENTERED INTO BY AND BETWEEN COMPANY, INC., 1275 HARBOR BAY
\nPARKWAY, SUITE 100, ALAMEDA, CA 94502 (“Company”) AND TELECOMMUNICATIONS D’HAITI
\nS.A.M. (“BUYER”).<\/p>\n
1. This Agreement shall apply to all confidential and proprietary
\n information disclosed by the parties to the other, including but not
\n limited to confidential product planning information, product
\n specifications and other proprietary and business and technical
\n information (hereinafter referred to as “Confidential Information”). As
\n used herein, “Confidential Information” shall be in written, graphic,
\n machine recognizable or other tangible or electronic form and marked
\n “Confidential” or “Proprietary” or shown by implication that it is
\n imparted or disclosed in confidence, or if disclosed orally or
\n visually, shall be reduced to writing in summary form, identified as
\n “Confidential Information” and sent to the Receiving Party within 15
\n days following such oral or visual disclosure.<\/p>\n
2. Company and BUYER mutually agree to hold the other party’s Confidential
\n Information in strict confidence and not to disclose such Confidential
\n Information to any third parties except after receiving prior consent
\n by the disclosing party in writing. Company and BUYER shall use the
\n same degree of care to avoid disclosure of such Confidential
\n Information as each employs with respect to its own proprietary
\n information of like importance or a greater degree if reasonable.<\/p>\n
3. Company and BUYER agree that they will not use the other party’s
\n Confidential Information for any purpose other than for the intended
\n purposes, without the prior written permission of the other party.<\/p>\n
-23-<\/p>\n
STRATEGIC ALLIANCE [*] CONTRACT NO. HT 112300
\nTELECO NETWORK EXPANSION<\/p>\n
4. Company and BUYER mutually agree they may disclose such Confidential
\n Information to their respective responsible employees with a bona fide
\n need to know, and Company and BUYER agree to instruct all such
\n employees not to disclose such Confidential Information to third
\n parties and will ensure that such employees have agreed to similar
\n non-disclosure provisions with Company or the BUYER, its own employees
\n respectively.<\/p>\n
5. Information shall not be deemed Confidential Information and the
\n receiving party shall have no obligation regarding any information for
\n which it can be proven in written documentation (a) is already known to
\n the receiving party at the time that it is disclosed without use of the
\n Confidential Information; (b) is or becomes publicly known through no
\n wrongful act contrary to this Agreement of the receiving party; (c) is
\n rightfully received from a third party without obligation of confidence
\n or restriction on disclosure from receiving party and without breach of
\n this Agreement; (d) is independently developed by the receiving party
\n without use of Confidential Information; (f) is disclosed pursuant to a
\n requirement of a valid court order provided that the Receiving Party
\n provides (i) prior written notice for the disclosing party of such
\n obligation and (ii) the opportunity to oppose such disclosure and (iii)
\n it is disclosed for the extent and purposes or the order only.<\/p>\n
6. All Confidential Information shall remain the property of the
\n disclosing party, and upon the written request of either party, the
\n other party shall promptly return to the disclosing party all
\n Confidential Information disclosed to it and all copies thereof or at
\n the disclosing party’s option shall destroy all such Confidential
\n Information and shall provide the receiving party with a certificate
\n that all Confidential Information has been destroyed.<\/p>\n
7. Company and BUYER recognize and agree that nothing contained in this
\n Agreement shall be construed as granting any rights, by license or
\n otherwise to any Confidential Information disclosed pursuant to this
\n Agreement.<\/p>\n
8. This agreement shall be binding upon and inure to the benefit of the
\n party’s successors and assigns. This Agreement shall not be assignable
\n by either party for the written consent of the other party, and any
\n purported assignment not permitted hereunder shall be void. This
\n document constitutes the entire agreement between the parties with
\n respect to the subject matter hereof, and shall supersede all previous,
\n understandings and agreements, either oral or written, between the
\n parties or any official or representative thereof.<\/p>\n
9. The obligations undertaken by each party pursuant to this Agreement
\n shall remain in effect for three years from the last date of disclosure
\n of Confidential Information, and shall survive any termination or
\n expiration hereof.<\/p>\n
10. None of the Confidential Information disclosed by the parties
\n constitutes any representation, warranty, assurance, guarantee or
\n inducement by either party to the either with respect to the
\n infringement of trademarks, patents, copyrights; any right of privacy;
\n or any rights of third persons.<\/p>\n
-24-<\/p>\n
STRATEGIC ALLIANCE [*] CONTRACT NO. HT 112300
\nTELECO NETWORK EXPANSION<\/p>\n
11. The parties hereto are independent contractors.<\/p>\n
12. This Agreement may be modified only by written amendment signed by both
\n parties. This Agreement shall be construed in accordance with the laws
\n of the State of California without regard to the conflict of laws
\n provisions and shall be subject to the jurisdiction of the courts of
\n the State of California.<\/p>\n
13. The receiving party may make copies of Confidential Information only to
\n the extent necessary for the purpose of this Agreement provided that
\n the copies are marked “Confidential” and treated as Confidential
\n Information in accordance with the terms of this Agreement.<\/p>\n
14. Accordingly, nothing in this Agreement will be construed as a
\n representation or inference prohibiting either party from developing
\n products, having products developed for it, from entering into joint
\n ventures, alliances, or licensing arrangements that all without
\n violation of this Agreement, compete with the products or systems
\n embodying the Confidential Information.<\/p>\n
-25-<\/p>\n
STRATEGIC ALLIANCE [*] CONTRACT NO. HT 112300
\nTELECO NETWORK EXPANSION<\/p>\n
24 EXHIBIT D: BUSINESS PLAN AND PROJECT COMMERCIAL MILESTONES<\/p>\n
25 EXHIBIT E: PROJECT IMPLEMENTATION SCHEDULE<\/p>\n
26 EXHIBIT F: TRAINING AND TECHNOLOGY TRANSFER<\/p>\n
-26-<\/p>\n
STRATEGIC ALLIANCE [*] CONTRACT NO. HT 112300
\nTELECO NETWORK EXPANSION<\/p>\n
EXHIBIT A<\/p>\n
PRICES AND EQUIPMENT LISTS<\/p>\n
[*]<\/p>\n
-27-<\/p>\n
STRATEGIC ALLIANCE [*] CONTRACT NO. HT 112300
\nTELECO NETWORK EXPANSION<\/p>\n
EXHIBIT D<\/p>\n
BUSINESS PLAN<\/p>\n
AND<\/p>\n
PROJECT COMMERCIAL MILESTONES<\/p>\n
[*]<\/p>\n
-28-<\/p>\n
STRATEGIC ALLIANCE [*] CONTRACT NO. HT 112300
\nTELECO NETWORK EXPANSION<\/p>\n
EXHIBIT E<\/p>\n
PROJECT IMPLEMENTATION SCHEDULE<\/p>\n
[*]<\/p>\n
-29-<\/p>\n
STRATEGIC ALLIANCE [*] CONTRACT NO. HT 112300
\nTELECO NETWORK EXPANSION<\/p>\n
EXHIBIT F<\/p>\n
TRAINING<\/p>\n
-30-<\/p>\n
STRATEGIC ALLIANCE [*] CONTRACT NO. HT 112300
\nTELECO NETWORK EXPANSION<\/p>\n
TRAINING COURSE<\/p>\n
Participants: [*]<\/p>\n
Time: [*]<\/p>\n
Duration: [*]<\/p>\n
OBJECTIVES:<\/p>\n
– Describe the porposed solution features and characteristics, including an
\n introduction to the PHS air interface characteristics and to facilitate
\n network planning and system configuration.<\/p>\n
– Describe the features and functions of each component of the proposed
\n solution equipment set, to support the operation and maintenance of the
\n equipment by Teleco’s personnel during and after the installation.<\/p>\n
– Train personnel in the use of the NETMAN Network Management System as art
\n of its operations with the various elements of the proposed solution.<\/p>\n
Training Course Summary:<\/p>\n
[*]<\/p>\n
-31-<\/p>\n
STRATEGIC ALLIANCE [*] CONTRACT NO. HT 112300
\nTELECO NETWORK EXPANSION<\/p>\n
EXHIBIT G<\/p>\n
FINAL ACCEPTANCE CERTIFICATE<\/p>\n
-32-<\/p>\n
STRATEGIC ALLIANCE [*] CONTRACT NO. HT 112300
\nTELECO NETWORK EXPANSION<\/p>\n
FINAL ACCEPTANCE CERTIFICATE<\/p>\n
DATE:
\n ———————<\/p>\n
CONTRACT #:
\n ——————————–<\/p>\n
PHASE #:
\n ——————————————–<\/p>\n
PHASE AMOUNT:
\n —————————————-<\/p>\n
CUSTOMER:
\n ———————————————<\/p>\n
BY ITS SIGNATURE BELOW, THE ABOVE-NAMED CUSTOMER CERTIFIES THAT:<\/p>\n
1) WITH RESPECT TO THE CONTRACT IDENTIFIED ABOVE, THE CUSTOMER HAS FULLY
\n ACCEPTED DELIVERY OF THE EQUIPMENT DESCRIBED IN THE ABOVE-REFERENCED
\n CONTRACT PHASE, WITH TITLE FULLY PASSING TO THE CUSTOMER.<\/p>\n
2) INSTALLATION OF THE EQUIPMENT HAS BEEN FULLY COMPLETED FOR THE CUSTOMER
\n BY UTSTARCOM AND\/OR ITS AGENTS OR SUBCONTRACTORS.<\/p>\n
3) ALL TRIAL PERIODS, PRELIMINARY TESTING, COMMISSIONING AND FINAL
\n ACCEPTANCE TESTING AS REQUIRED FOR THE ABOVE-DESCRIBED PHASE HAS BEEN
\n COMPLETED TO THE FULL SATISFACTION OF THE CUSTOMER.<\/p>\n
4) ALL SERVICES TO BE PROVIDED TO THE CUSTOMER PRIOR TO AND AS A PART OF
\n FINAL ACCEPTANCE TESTING, AS REQUIRED BY THE ABOVE-DESCRIBED CONTRACT,
\n HAVE BEEN SUBSTANTIALLY COMPLETED TO THE FULL SATISFACTION OF THE
\n CUSTOMER.<\/p>\n
5) UTSTARCOM IS ENTITLED TO FULL PAYMENT OF THE CONTRACT AMOUNT FOR THE
\n PHASE IDENTIFIED ABOVE.<\/p>\n
6) THE CUSTOMER’S SIGNATURE OF THIS FINAL ACCEPTANCE CERTIFICATE IN NO WAY
\n RELIEVES UTSTARCOM OF ANY WARRANTY, POST-ACCEPTANCE MAINTENANCE, OR
\n EQUIPMENT UPGRADE OBLIGATIONS CONTAINED WITHIN THE ABOVE-REFERENCED
\n CONTRACT.<\/p>\n
7) THIS CERTIFICATE SUPERSEDES ANY CONTRARY ORAL OR WRITTEN AGREEMENTS OR
\n NEGOTIATIONS THAT MAY HAVE OCCURRED PRIOR TO THE SIGNING OF THIS
\n CERTIFICATE.<\/p>\n
—————————————-
\nNAME<\/p>\n
—————————————-
\nTITLE<\/p>\n
—————————————-
\nCUSTOMER NAME<\/p>\n
—————————————-<\/p>\n
-33-<\/p>\n
STRATEGIC ALLIANCE [*] CONTRACT NO. HT 112300
\nTELECO NETWORK EXPANSION<\/p>\n
MEMORANDUM OF UNDERSTANDING<\/p>\n
REFERENCE: STRATEGIC ALLIANCE [*] LINES TELECO NETWORK EXPANSION<\/p>\n
Pursuant to Contract reference No. HT112300, Strategic Alliance between
\nUTStarcom Inc, and TELECO for the provision of [*] wireless access lines of PAS
\nequipment manufacture by UTStarcom, Inc. UTStarcom hereby agrees to provide
\nTELECO [*] the new software releases that become commercially available for this
\nmarket, during a maximum period of [*] after the completion of last phase of
\nproject. [*] per [*] is usually issued.<\/p>\n
This MoU will be superceded by a formal service contract for software rigth to
\nuse upgrades and does not involve the provision of any additional hardware
\nrequired for the software release implementations required for new features or
\nfunctions.<\/p>\n
By Telecommunications d’ Haiti S. A. M. By UTStarcom, Inc<\/p>\n
Jean Francois Chamblain Omar A. Graibe
\nDirecteur General CALA Managing Director<\/p>\n
-34-<\/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-42846","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\/42846","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=42846"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42846"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42846"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42846"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}