\n 15.1 Limited Warranty………………………………………….. 12
\n 15.2 Disclaimer of Warranties…………………………………… 13
\n 15.3 Inherently Dangerous Applications…………………………… 13
\n 15.4 Product Returns…………………………………………… 13
\n16. Indemnification………………………………………………… 13
\n 16.1 Indemnity………………………………………………… 13
\n 16.2 Limitations………………………………………………. 14
\n 16.3 Disclaimer……………………………………………….. 14
\n17. Limitation of Liability…………………………………………. 14
\n18. Termination……………………………………………………. 14
\n19. Training………………………………………………………. 15
\n20. Governing Law and Regulations……………………………………. 15
\n21. General Provisions……………………………………………… 15
\n 21.1 No Liability for Other Party’s Acts…………………………. 15
\n 21.2 Independent Contractors……………………………………. 15
\n 21.3 Notices………………………………………………….. 15
\n 21.4 Security Interest…………………………………………. 16
\n 21.5 No Assignment…………………………………………….. 16
\n 21.6 Jurisdiction……………………………………………… 16
\n 21.7 Publicity………………………………………………… 16
\n 21.8 No Violation of Applicable Law……………………………… 16
\n 21.9 Conflicting Exhibits………………………………………. 16
\n 21.10 No Waiver………………………………………………… 17
\n 21.11 Arbitration………………………………………………. 17
\n 21.12 Non-Monetary Remedies……………………………………… 17
\n 21.13 Force Majeure…………………………………………….. 17
\n 21.14 Entire Agreement………………………………………….. 17
\n 21.15 May Be Executed in Counterparts…………………………….. 17
\n 21.16 Contract Validity…………………………………………. 17<\/p>\nExhibit A: Section 7 Economic Proposal and Equipment Lists
\nExhibit B: End-User Software License
\nExhibit C: Mutual Non-Disclosure and Confidentiality Agreement
\nExhibit D: Business Plan and Project Commercial Milestones
\nExhibit E: Project Implementation Schedule
\nExhibit F: Training and Technology Transfer
\nExhibit G: Final Acceptance Certificate
\n<\/c><\/c><\/s><\/caption>\n<\/table>\n
Strategic Alliance [*] Lines Contract No. HT041101
\nTeleco Network Expansion<\/p>\n
STRATEGIC ALLIANCE, PURCHASE AND LICENSE AGREEMENT<\/p>\n
THIS STRATEGIC ALLIANCE, PURCHASE AND LICENSE AGREEMENT (the “Agreement”)
\nis made by and between UTStarcom, Inc., a Delaware corporation, having offices
\nat 1275 Harbor Bay Parkway, Suite 100, Alameda, California 94502, United States
\nof America (hereinafter referred to as “Company”), duly represented by Mr. Omar
\nA. Graibe, 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 Patrick A. Joseph, Directeur General of
\nTELECO, appointed by the President du Conseil d’Administrationon Gouverneur de
\nla Banque de la Republique d’Haiti on March 2001, and duly authorized by the
\nGovernment of Haiti to enter into and sign this contract.<\/p>\n
WHEREAS, BUYER desires to purchase and license, from time to time, certain
\nof 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. For the purpose of this Agreement, the terms below
\n ———–
\nshall have the following definitions:<\/p>\n
1.1 “Functional Verification”. “Functional Verification” means
\ncompletion of tests performed by Company in accordance with the Functional
\nVerification test procedure to be provided by Company and approved by the BUYER
\nprior to the commencement of the tests.<\/p>\n
1.2 “Commercial Service”. “Commercial Service” means the earliest
\ndate when any of BUYER’s subscribers or customers begins to use the Product. <\/p>\n
1.3 “Effective Date”. “Effective Date” means the earliest date by
\nwhich duly authorized officers of both parties have signed this Agreement.<\/p>\n
1.4 “Product”. “Product” means collectively all hardware and
\nsoftware components and subsystems provided by Company as more fully described
\nin Exhibit A attached hereto.<\/p>\n
1.5 “Services”. “Services” means collectively labor delivered by
\nCompany and\/or its subcontractors for the purpose of training, installation,
\nrepair or other
\npurposes.<\/p>\n
1.6 “Documentation”. “Documentation” means all user manuals,
\ntraining manuals, Software release notes, and other similar, written materials
\nto be provided in English during the<\/p>\n
-1-<\/p>\n
Strategic Alliance [*] Lines Contract No. HT041101
\nTeleco Network Expansion<\/p>\n
initial Project’s phase and in French after the completion of the Projects first
\nphase, provided with the System, as may be updated by Company from time to time.<\/p>\n
1.7 “Software”. “Software” — the executable (object code) version
\nof software as developed by and\/or licensed to Company for use in the Product.<\/p>\n
1.8 “Software License Agreement”. “Software License Agreement” means
\nthe Software License Agreement between the parties and attached hereto as
\nExhibit B.<\/p>\n
1.9 “Non-Disclosure Agreement”. “Non-Disclosure Agreement” means the
\nMutual Non-Disclosure and Confidentiality Agreement between the parties and
\nattached hereto as Exhibit C.<\/p>\n
1.10 “Warranty Period”. “Warranty Period” — a period starting on
\nthe date of Functional Verification as applicable per Limited Equipment Warranty
\ncoverage described herein this Contract.<\/p>\n
1.11 “Business Plan”. “Business Plan” — The Business Plan of the
\nProject details Project Implementation Schedule, financial parameters of the
\nStrategic Alliance, Purchase and License Agreement and the Financial Returns for
\neach party of this Strategic Alliance and attached hereto as Exhibit D.<\/p>\n
1.12 “Training”. Exhibit “F”.<\/p>\n
1.13 “Final Acceptance Certificate”. Exhibit “G”.<\/p>\n
2. Term. The term of this Agreement shall commence on the Effective Date
\n —-
\nand unless otherwise terminated as provided herein, shall continue in full force
\nand effect.<\/p>\n
3. Project Scope. The purpose of this Contract is to rule and establish
\n ————-
\nthe conditions, rights, obligations, responsibilities and other related
\nstipulations under which both parties will jointly develop a Project for a
\nminimum of [*] wireless access lines that will allow TELECO to provide Access
\nServices to its residential and business customers throughout the Republic of
\nHaiti.<\/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
\nProject shall be developed in accordance to the Business Plan included in
\nExhibit D of this 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 prices listed in Exhibit A. The<\/p>\n
Strategic Alliance [*] Lines Contract No. HT041101
\nTeleco Network Expansion<\/p>\n
equipment could be installed wherever it is required and agreed by Company, as
\nper Company standards practices and recommendations, in the Buyer premises or
\nthird party locations. All charges and\/or fees related to renting of space,
\nfacilities, 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 charged 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,
\nrights of ways, licenses, and other necessary project elements as agreed in this
\nContract, its annexes or any amendments to them.<\/p>\n
Prices for installation and related charges are subject to change due to
\n[*]. [*] 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
Buyer, as National Telecommunications Operator of Haiti, shall provide all
\nof its [*] to facilitate the Project Development.<\/p>\n
Company will provide [*] deployment as described and agreed to in this
\nAgreement, 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.
\nThe terms and conditions of such extension(s) shall be made through amendments
\nto the original contract<\/p>\n
4. Project Business Plan and Schedule. Equipment will be deployed in
\n ———————————-
\nphases, [*]. Deployment is as per scheduled as detailed in Exhibit E.<\/p>\n
This contract is based on the Business Plan presented in Exhibit D,
\n“Business Plan”. The Business Plan is a fundamental part of the Contract. It
\ndetails the Project Commercial Milestones, the financial parameters that will
\nrule the Contract and it establishes the expected financial returns agreed and
\nprojected by both parties. One of the key purposes of this Contract and
\nBusiness Plan is to ensure the success of the project and its financial returns
\non the investment in order to ensure the successful execution of the Project
\nboth from an economic and financial standpoint. This signifies that the revenue
\nstreams generated from the initial phases of the project, shall provide the
\nfunding needed to carry out the project subsequent phases to achieve the Project
\nPlan stated Goals. In accordance with the aforementioned and to ensure the
\nactual compliance of the Business Plan in practice, every [*], TELECO and
\nCompany will review the actual results yielded by Project against the Business
\nPlan goals and will agree on the necessary adjustments warranted to ensure that
\nCompany obtains the payments for the goods and services contracted by TELECO
\nunder the terms<\/p>\n
Strategic Alliance [*] Lines Contract No. HT041101
\nTeleco Network Expansion<\/p>\n
of this Agreement and the financial returns or charges established in the
\nBusiness Plan as well as the benefits due to TELECO. If for any reason these
\nfinancial returns are not as projected in the Business Plan [*] will provide the
\nadditional funding that guarantees the payment of product and services as well
\nas the financial product and charges due to Company.<\/p>\n
Prior to delivery, Company 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.
\n —————<\/p>\n
5.1 Order Submission. BUYER will purchase and\/or license Products
\n —————-
\naccording to the Scope of this Strategic Alliance Agreement by submitting, from
\ntime to time as per Project Schedules and Phases indicated in Business Plan and
\nProject Schedule (Exhibits D and E), purchase orders by hard copy or facsimile.
\nCompany will accept orders in compliance with the terms of this contract and
\nwill inform BUYER in writing of expected shipment dates.<\/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.
\n ———————————-<\/p>\n
6.1 Pricing and Shipment. Prices for the Product and Services
\n ——————–
\npurchased and\/or licensed hereunder shall be as described in Exhibit A to this
\nAgreement (the “Prices”). Prices for the Product are in [*]. Unless otherwise
\nspecified by Company in writing, the Prices for the Products [*] any freight,
\ntransportation, handling or Services, which are listed, separately as
\napplicable.<\/p>\n
6.2 Taxes, Duties and Levies. The Prices and\/or any payments or
\n ————————
\ndisbursements to Company from this Agreement [*] any customs duties, value added
\ntax, income tax or any other direct or indirect tax, charge, duty, levy or
\nassessment which may be levied or charged by any national, state, local or other
\ngovernmental authority, agency or instrumentality of the Republic of Haiti,
\ncurrently applicable or created in the future by any authority of the Republic
\nof Haiti. Any such amounts charged, levied or assessed, whether withheld at
\nsource or otherwise, will be [*] to the prices otherwise chargeable to and
\npayable by [*] pursuant to this Agreement.<\/p>\n
6.3 Financing and Form of Payment. Payment of goods, services and
\n —————————–
\nother charges due to Company shall be made by TELECO as follows:<\/p>\n
1) Down payment of [*] per cent of the Project Total Contract
\nValue of each individual phase of the [*] Access Lines project payable [*]
\nwithin [*] from Contract Signature.<\/p>\n
Strategic Alliance [*] Lines Contract No. HT041101
\nTeleco Network Expansion<\/p>\n
2) Payment of Contract remaining balance due to Company shall be
\npaid by TELECO in [*] installments [*] as follows:<\/p>\n
These installments shall come from the total revenues collected from users
\nwho subscribe to access lines provided by the Buyer with this project. Both
\nparties agreed that total revenues would consist of the following:<\/p>\n
[*]<\/p>\n
Total revenues have been estimated in the Business Plan based on
\nconservative figures below the actual applicable values. The actual values
\ncould be higher and will depend on the official tariffs approved and applicable
\nin Haiti by TELECO. All revenues collected by TELECO shall be automatically
\ndeposited when subscriber pays for their services in an escrow account at a
\nmutually agreeable international financial institution whose joint beneficiaries
\nshall be the Company and Buyer. At the end of each [*], the Company and TELECO
\nwill review the balance of the escrow account. The Company shall be entitled to
\ncollect the [*] installments owed to Company as per the mutually agreed project
\nimplementation schedule. The escrow account shall be kept with a minimum
\nbalance equivalent to the amount of a [*] installment and the remaining funds in
\nthe account shall be disbursed to TELECO. If for any reason, the funds
\ndeposited in the escrow account are not sufficient to cover the [*] contract
\ninstallment, TELECO shall pay from its own funding the difference owed to the
\nCompany within a period of [*] from payment due date.<\/p>\n
As a guarantee to Company efforts and investment, Buyer shall provide
\nCompany an acceptable Guarantee acceptable to Company, such as any of the
\nfollowing: i) an [*] L\/C for an amount [*] in a first rated international
\nfinancial institution acceptable to Company, ii) IOU’s with the collateral of
\n[*], iii) any other form of guarantee acceptable to Company. The amount of the
\nherewith indicated guarantee shall be equivalent to two quarterly installments
\nof the project value in favor of Company. This guarantee shall allow partial
\ndisbursements that could be exercised by Company if Buyer delays the payment of
\nany outstanding balance for more than [*]. If disbursements are applied to
\nGuarantee, Buyer shall reinstate the original value of L\/C and\/or guarantee
\nwithin [*] of notification from Company. Failure to reinstate the value of this
\nguarantee will become a breach of contract; in such case Company could exercise
\nthe L\/C and\/or Guarantee and collect by any means the balance due from the
\nentire contract. This guarantee shall cover the total contract value and shall
\nbe valid during the contract term. In addition, Government of Haiti Guarantee
\nshould be issued by Banc Nationale D’Haiti, majority owner of TELECO, in favor
\nof Company to serve as guarantee to the contracted project.<\/p>\n
All payments are non-refundable.<\/p>\n
7. Advance Payment Guarantee. Company shall provide for the benefit of
\n ————————-
\nBUYER an advance payment guarantee issued first-rated international bank, in the
\namount of the Initial Payment as set forth in Article 6.3 (the “Guarantee”). The
\nGuarantee shall become effective upon Company’s receipt of the Initial Payment
\ndue from BUYER under the terms of Section 6, and shall expire upon shipment of
\nthe Product, unless extended by mutual written agreement of the parties.<\/p>\n
Strategic Alliance [*] Lines Contract No. HT041101
\nTeleco Network Expansion<\/p>\n
8. Liquidated Damages. In the event Company fails to complete deployment
\n ——————
\nto a sufficient degree to allow Commercial Service to begin by the date
\nspecified in the mutually agreed project plan, BUYER may assess against Company
\nliquidated damages, for each week of such delay, in the amount of [*] of the
\ntotal price under the applicable purchase order for the delayed item or items,
\nprovided that the total amount of liquidated damages that may be assessed under
\nthis Agreement shall not exceed [*] of the total Product price set forth in the
\napplicable purchase order and further provided that the assessment of such
\nliquidated damages by BUYER shall be its [*] remedy for Company’s delay in
\npreparing the BUYER network for commercial service by the date specified in the
\nmutually agreed project plan.<\/p>\n
Notwithstanding the foregoing provisions of this Section, Company shall not
\nbe responsible for any delay or failure to deliver the Product, and BUYER shall
\nnot be entitled to any liquidated damages or termination rights, to the extent
\nsuch delay or failure results from: (a) any delay or failure by BUYER or any
\nthird party not under Company’s control to perform its obligations under or
\nrelated to this Agreement or any of its Exhibits or attachments; or (b) any
\nforce majeure event.<\/p>\n
9. Installation and Acceptance.
\n —————————<\/p>\n
9.1 Site Availability. BUYER shall prepare within the timeframe
\n —————–
\nagreed to by the parties site(s) for the installation of the Product that meets
\nthe environmental and other requirements of the Product for its installation as
\nspecified by Company. BUYER shall provide access to the sites and the Product
\nfor Company’s personnel and other authorized representatives.<\/p>\n
9.2 Installation. Company or its subcontractors shall install the
\n ————
\nProduct at the site(s). BUYER undertakes and agrees to use its best efforts to
\navoid delay in the commencement or performance of the installation by any act or
\nomission of the BUYER or any of BUYER’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
\npremises and facilities where the Equipment is warehoused, existing network
\nfacilities and sites where contracted equipment will be installed at all hours
\nconsistent with the requirements of the installation.<\/p>\n
(b) Environmental — Assure that the premises will meet all
\n ————-
\ntemperature, humidity controlled, air-conditioned, and other environmental
\nrequirements set forth in the applicable Equipment specifications and will be
\ndry and free from dust and in such condition as not to be injurious to the
\nemployees or agents of Company, Inc. or the Equipment to be installed.<\/p>\n
Strategic Alliance [*] Lines Contract No. HT041101
\nTeleco Network Expansion<\/p>\n
(c) Mechanical — Provide all patching, painting, concrete
\n ———-
\nopenings, conduits, ducts, floors, walls and ceilings reinforcements and\/or
\nmodifications, as deemed necessary to house the contracted equipment, or other
\nmechanical modifications pertinent to this installation as required.<\/p>\n
(d) Electrical — Provide ample electric current of proper
\n ———-
\nvoltage for any necessary purpose suitably terminated in rooms or any places
\nwhere equipment is to be installed, including but not limited to poles and
\ntowers, where it is required. Provide property ground copper conductor of ample
\ncapacity (minimum #6 AWG) at the Equipment locations. Provide the required –
\n48vDc power feeds and 120\/240 VAC power feeds, all separately fused outlets, as
\nmay be required per individual equipment site.<\/p>\n
(e) Provide for the termination of any existing service
\nagreement and for the removal of any existing equipment and cable, as required.<\/p>\n
(f) Provide suitable and easily accessible floor space, as well
\nas secured storage, to permit storing adjacent to where Equipment will be used,
\nand for secure storage of tools, test sets, and employee’s personal effects for
\nthe duration of project.<\/p>\n
(g) Approvals — Buyer shall be responsible for the timely and
\n ———
\nproper securing of all permits, licenses, rights of ways, consents, including
\nlandlords, issuance of frequency spectrum operating licenses and approvals from
\nthe corresponding regulatory authorities, i.e. CONATEL, legal requirements and
\nfees thereof associated in connection with these for the acquisition,
\ninstallation and operation in its network of the contracted Equipment.<\/p>\n
(h) Buyer specifically agrees to indemnify and hold Company
\nharmless from all liability and costs arising from the Buyer and its
\ncontractors, subcontractors and employees for site preparation efforts or for
\nthe 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, however, will not be responsible for
\nperforming civil works, i.e., construction, modifications, power distribution,
\npainting. plastering, ducts, existing equipment relocations, repairs to Buyer’s
\npremises resulting from the installation of the contracted Equipment except as
\nexpressly agreed by Company in the contract technical schedules. Buyer hereby
\nholds Company harmless from any such damage to Buyer’s property.<\/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 standard installation practices and recommendations.
\nCompany shall perform acceptance testing according to Company standards and
\nspecifications on the installed Equipment and Buyer<\/p>\n
Strategic Alliance [*] Lines Contract No. HT041101
\nTeleco Network Expansion<\/p>\n
agrees to monitor said testing. Upon completion thereof, as described above,
\nCompany shall notify Buyer that the Equipment has been installed and operates in
\naccordance with the criteria set forth in Company Specifications.<\/p>\n
If the Equipment does not perform according to the acceptance test criteria
\nand Company, after having been notified in writing of the defects fails to cure
\nsuch defect within [*] of receipt of such notice (“Cure Period”), Buyer has the
\nright to return the Equipment [*] if such Equipment is shipped to Company no
\nlater than [*] after expiration of the Cure Period.<\/p>\n
9.3 Equipment Acceptance. The commercial in-service handling of
\n ——————–
\nfirst call at the end of each deployment phase described in the Price Summary
\ncontained in Exhibit “A” shall constitute the acceptance by Buyer of the
\nequipment delivered.<\/p>\n
Company and BUYER shall accordingly execute the Acceptance Certificate
\nforthwith at the conclusion of each deployment phase, substantially in the form
\nshown in Exhibit G.<\/p>\n
10. Obligations and Rights of Parties.
\n ———————————<\/p>\n
OBLIGATIONS OF COMPANY:<\/p>\n
a) Engineer, deliver, install and to put in operation the network
\nexpansion and necessary and suitable equipment with all its accessories
\ncontracted by the Buyer, and its interconnection, according to parameters and
\nconditions set forth in this Contract.<\/p>\n
b) Furnish new equipment of most recent version, good quality and
\ncompatible with the existing PSTN network of Buyer as per international accepted
\nstandards.<\/p>\n
c) Train and transfer the necessary knowledge to the qualified TELECO
\npersonnel to operate, exploit and maintain the equipment that will be
\nprovisioned under the terms of the contract.<\/p>\n
d) Provide the technical services required to perform the design and
\ncommissioning of the proposed network expansion solution, excluding the
\ninstallation and placement in service of the subscriber premises equipment and
\nnecessary wire cable plant. Drop wire installation and modifications or
\ninstallation at customer premises are to be carried out and at the cost of [*].
\nCompany will provide and install the necessary cable between the RPs and RPCs.<\/p>\n
OBLIGATIONS OF BUYER:<\/p>\n
a) Make available to the Company all existing equipment and network
\ninfrastructure required to perform the contracted equipment and expansions,
\nincluding but not limited to: PSTN facilities, equipment sites, switching
\nsystems, PDH and SDH transmission network, inclusive the Banc Nationale D’Haiti
\nSDH points of presence and associated transmission backbone equipment, ducts,
\npoles, buildings, cable plant, radio towers, rights of way, as well as, all the
\nnecessary technical<\/p>\n
Strategic Alliance [*] Lines Contract No. HT041101
\nTeleco Network Expansion<\/p>\n
engineering information, facilities, licenses and approvals needed to deploy and
\ninterconnect the contracted solution.<\/p>\n
b) Under the terms of the agreement the Buyer or its designated commercial
\nagent is solely responsible for all promotions, sales-marketing, commercial
\ninfrastructure, including points of sales and personnel necessary to promote and
\ncommercialize the lines and services contracted within the Republic of Haiti.<\/p>\n
c) Put in operation the structure and equipment supplied by the Company to
\noperate, exploit and to maintain the equipment network expansion contracted,
\nincluding installation of equipment at end-user premises, installation and
\nprovisioning of primary and secondary drop wire cable plant as well as internal
\ninstallation and repairs at customer premises, training of end-user, Buyer
\nservice, billing and collections activities necessary to conduct the marketing,
\nsale, installation, service processing, billing and collection activities of the
\nlines\/services contracted.<\/p>\n
d) Insure, by its own account and risk, the contracted equipment,
\npersonnel and goods deployed in its facilities, stored in its warehouses and
\nunder the control of its personnel against all the possible risks.<\/p>\n
e) The Buyer is solely responsible to ensure through its best efforts,
\ncapacity and experience the optimum profitability, continuity and regularity of
\nthe service, including lines and services sold by the Company and\/or its
\ndesignated commercial agent and disburse all collected revenues due to
\nCompany\/Agent for the sales of the lines and services.<\/p>\n
f) Permit the use of its installations when required by the Company to
\nperform equipment installations, interconnections, testing, and any other
\nactivity related to the implementation\/operation of the project.<\/p>\n
g) Provision of the services to the users in the coverage zones
\nestablished; and to the billing and collections for the corresponding connection
\nfees, monthly charges, user fees and other charges from the provision of
\nservices to the users.<\/p>\n
h) Keep separate accounting and financial records of the project according
\nwith international accounting practices.<\/p>\n
i) Perform, timely, according to project schedule and engineering the
\nadequate extensions to existing equipment to interconnect the project with the
\nexisting infrastructure.<\/p>\n
j) Buyer agrees to grant the Company and\/or its designated agent full
\nrights and privileges to conduct marketing and promotional activities and use of
\ninformation and the facilities related to this contract to showcase and
\ndemonstrate its equipment capacities and attributes to other potential clients.<\/p>\n
Strategic Alliance [*] Lines Contract No. HT041101
\nTeleco Network Expansion<\/p>\n
k) Buyer agrees to grant Company the necessary Government of the Republic
\nof Haiti importation exemptions free of any import duties, levies and
\nrestrictions to import test equipment, tools, vehicles, computing equipment,
\noffice equipment, miscellaneous hardware, and other elements needed for the [*]
\nimplementation of the contracted project.<\/p>\n
l) Buyer agrees to facilitate Company personnel and its sub-contractors
\nand respective family members the necessary entry visas and work permits to live
\nand work in the Republic of Haiti during the course of the project.<\/p>\n
m) Buyer agrees to reinvest in the subsequent project phases, the revenues
\nfrom project’s revenue generation.<\/p>\n
RIGHTS OF BUYER:<\/p>\n
a. Exploit the equipment and keep the financial product from the revenue
\nof the equipment once the financing of project and all other related charges has
\nbeen covered.<\/p>\n
b. Participate in the project field installation activities to obtain
\nknowledge of the equipment and of the processes of installation and placement in
\noperation, for which TELECO will appoint personnel properly qualified under the
\nsupervision of the Company.<\/p>\n
c. Hands-on training to receive technology and knowledge transfer for the
\noperation, exploitation and corrective and preventive maintenance of the
\ncontracted equipment\/solution.<\/p>\n
RIGHTS OF COMPANY:<\/p>\n
a) Access to Buyer premises to install the equipment, perform equipment
\ntest, interconnections or any other activities related to the project execution
\nand integration to the existing network.<\/p>\n
b) Company or a firm representing company must have full access to
\naccounting files and Accounting Books of Project and to all information related
\nwith the Project. Company could conduct audits to the project’ operations. To
\ndo such audits, Company reserves the right to do it directly or through a
\nspecialized firm that will be hired for such purpose. In such cases, Buyer
\nshall be notified [*] before such audits are going to be conducted. All project
\ninformation shall be confidential and could not be released without the written
\nconsent of both parties.<\/p>\n
c) To receive the payments, to cover the investment made in equipment and
\nservices as well as the financing charges and any other charges related to the
\nproject, from the total revenues deposited in the escrow account and collected
\nfrom the subscribers connected to the installed equipment with the project.<\/p>\n
d) To receive interest at an interest rate [*] for any delayed payment
\nwhose delay exceeds [*] after payment due date.<\/p>\n
Strategic Alliance [*] Lines Contract No. HT041101
\nTeleco Network Expansion<\/p>\n
11. Project Coordination Committee and Executive Board. Company and Buyer
\n ————————————————–
\nagree to install [*] after Contract Signature a Project Coordination Committee
\n“The Committee” whose main purpose will be to coordinate all activities related
\nto project execution and performance and solve any differences that may arise
\nduring contract execution. The Committee will consist of one representative from
\nTELECO and one representative from Company. The Committee shall be responsible
\nfor the development and coordination of operational aspects, commercial aspects
\nand the development of procedures to effectively provide service to the end
\nusers as well as any action required to secure the success and profitability of
\nthe project. Any action or recommendation from the Committee shall be based on
\nthe Contract Terms and Conditions.<\/p>\n
The Committee shall meet at least once every week and produce a weekly
\nreport or on a per call basis as required by any of the two members appointed
\nto it. For each of the members, each party shall appoint a substitute that
\nshall represent the principal in the event that this one cannot assist to any
\nspecific meetings. Extraordinary meetings could be call by either party,
\nmeeting place and date shall be agreed, if no agreement is mutually reach,
\nmeeting shall be enforce to be held 8 calendar days after written notification
\nof request of meeting.<\/p>\n
If any matter is not resolved by the Committee, the General Director of
\nTELECO or its designated representative and the Sales Vice president of Company
\nor its designated representative shall constitute the Executive Board “The
\nBoard” of the Project and will solve any matter regarding this. In any event
\nany recommendation or resolution of the Committee, which involves or commits
\nmoney beyond [*] 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. Company shall perform functional
\n ———————–
\nVerification tests in accordance with the Functional Verification Test procedure
\nto be provided by Company prior to the commencement of the tests. The BUYER
\nundertakes and agrees to ensure that there will be no delay in the commencement
\nor performance of the Functional Verification by any act or omission of the
\nBUYER or any of BUYER’s employees, agents or representatives.<\/p>\n
13. Licenses. Company hereby grants BUYER a [*] license to use the
\n ——–
\nSoftware and the Documentation solely in connection with the Products purchased
\nby BUYER pursuant to this Agreement, at the Site(s) and for the purpose and in
\nthe manner for which the Product was designed and intended by Company, all in
\naccordance with the software license provisions set forth in Exhibit B attached
\nhereto. In no event shall BUYER have the right to market, sell, lease, license,
\nsublicense, assign, distribute or otherwise transfer the Products or any part
\nthereof without the express prior written consent of Company.<\/p>\n
BUYER shall not remove nor alter, nor permit the removal or alteration of,
\nany Company 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
Strategic Alliance [*] Lines Contract No. HT041101
\nTeleco Network Expansion<\/p>\n
14. Title and Risk. Title to the Product shall pass to BUYER upon
\n ————–
\nCompany’s shipment of the Product(s) to BUYER [*]. Risk of loss to the Product
\nshall pass to BUYER in accordance with [*].<\/p>\n
Title to all Software and Documentation shall remain vested in Company.
\nAll intellectual 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.
\n ——–<\/p>\n
15.1 Limited Warranty. Company warrants that the non-Software
\n —————-
\nProducts, as delivered, will be free from defects in materials and workmanship
\nduring the Warranty Period.<\/p>\n
This warranty will apply to hardware items directly manufactured by
\nCompany, except the telephone subscriber terminal equipment, shall expire after
\n[*] from the 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 defective directly
\nattributed to manufacturing defects.<\/p>\n
The warranty service shall be administered in accordance with Company
\nrecommendations and practices in effect at the time of shipment. Buyer shall
\nnotify Company in writing immediately upon discovery of any defects within the
\nwarranty period for return authorization and instructions. Upon receipt of the
\nreturned Equipment prepaid by Buyer, Company’ sole obligation shall be to repair
\nand\/or replace the part found to be defective, at its option. Replacement
\nEquipment may be new, or repaired. Returned replaced Equipment shall become
\nCompany’s property. Replacement Equipment shall be warranted for the unexpired
\nportion 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) electro-
\nstatic discharges; (vii) unusual operational or environmental stress or (vii)
\nmodification, adjustment, repair, service or installation by any party other
\nthan 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
12<\/p>\n
Strategic Alliance [*] Lines Contract No. HT041101
\nTeleco Network Expansion<\/p>\n
15.2 Disclaimer of Warranties. COMPANY MAKES NO WARRANTIES OR
\n ————————
\nCONDITIONS, EXPRESS, STATUTORY, IMPLIED, OR OTHERWISE, AND COMPANY SPECIFICALLY
\nDISCLAIMS THE IMPLIED WARRANTIES AND CONDITIONS OF NONINFRINGEMENT,
\nMERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NOTWITHSTANDING THE
\nFOREGOING, COMPANY DOES NOT EXCLUDE LIABILITY TO THE EXTENT THAT SUCH LIABILITY
\nMAY NOT BE EXCLUDED OR LIMITED BY LAW.<\/p>\n
15.3 Inherently Dangerous Applications. THE PRODUCTS ARE NOT
\n ———————————
\nAUTHORIZED FOR USE AS CRITICAL COMPONENTS IN LIFE SUPPORT DEVICES OR SYSTEMS OR
\nFOR USE IN AVIATION, NUCLEAR OR ANY OTHER INHERENTLY DANGEROUS APPLICATION
\nWITHOUT THE EXPRESS WRITTEN APPROVAL OF THE MANAGING DIRECTOR OF COMPANY. LIFE
\nSUPPORT DEVICES OR SYSTEMS ARE THOSE WHICH ARE INTENDED TO SUPPORT OR SUSTAIN
\nLIFE AND WHOSE FAILURE TO PERFORM CAN REASONABLY BE EXPECTED TO RESULT IN A
\nSIGNIFICANT INJURY TO THE USER. CRITICAL COMPONENTS ARE THOSE COMPONENTS WHOSE
\nFAILURE TO PERFORM CAN REASONABLY BE EXPECTED TO CAUSE FAILURE OF A LIFE SUPPORT
\nDEVICE OR SYSTEM OR AFFECT ITS SAFETY OR EFFECTIVENESS.<\/p>\n
15.4 Product Returns. In order to return Product that BUYER believes
\n —————
\nis defective, BUYER shall (i) notify Company in writing that such Product is
\nbelieved to be defective and furnish a detailed explanation of any alleged
\nproblem; (ii) obtain a RMA number from Company for the alleged defective
\nProduct; and (iii) within [*] of receipt of the RMA number, return such Product
\nto Company, [*], with the RMA number prominently attached to Company’s facility
\nin Miami, U.S.A. or such other location as Company may designate in writing in
\neach case during the Warranty Period.<\/p>\n
BUYER shall pay shipping charges for returned Product shipped to Company
\nand Company shall pay shipping charges for returned product shipped to BUYER.<\/p>\n
16. Indemnification.
\n —————<\/p>\n
16.1 Indemnity. BUYER agrees that Company has the right to defend,
\n ———
\nor at its option to settle, and Company agrees, at its own expense, to defend or
\nat its option to settle, any third party claim, suit or proceeding
\n(collectively, “Action”) brought against BUYER alleging the Products infringe
\nany United States patent, copyright or Trademark in existence as of the
\nEffective Date and enforceable in the BUYER’s country, subject to the
\nlimitations hereinafter set forth.<\/p>\n
Company will have sole control of any such Action or settlement
\nnegotiations, and Company agrees to pay, subject to the limitations hereinafter
\nset forth, any final judgment entered against BUYER on such issue in any such
\nAction defended by Company. BUYER agrees that Company will be relieved of the
\nforegoing obligations unless BUYER notifies Company promptly in writing of such
\nAction, gives Company authority to proceed as contemplated herein, and gives
\nCompany proper and full information and assistance to settle and\/or defend any
\nsuch Action. If it is<\/p>\n
13<\/p>\n
Strategic Alliance [*] Lines Contract No. HT041101
\nTeleco Network Expansion<\/p>\n
adjudicatively determined, or if Company believes, that the Products, or any
\npart thereof, infringe any patent, copyright or trademark, or if the sale or use
\nof the Products, or any part thereof, is, as a result, enjoined, then Company
\nmay, at its election, option, and expense: (i) procure for BUYER the right under
\nsuch patent, copyright or trademark to sell or use, as appropriate, the Products
\nor such part thereof; or (ii) replace the Products, or part thereof, with other
\nnoninfringing suitable Products or parts; or (iii) suitably modify the Products
\nor part thereof; or (iv) remove the Products, or part thereof, terminate
\ndistribution or sale thereof and refund the payments paid by BUYER for such
\nProducts less a reasonable amount for use and damage. Company will not be liable
\nfor any costs or expenses incurred without its prior written authorization, or
\nfor any installation costs of any replaced Products.<\/p>\n
16.2 Limitations. Notwithstanding the provisions of Section 16.1
\n ———–
\nabove, Company has no liability to BUYER for (i) any infringement of patent or
\ncopyright claims alleging infringement by completed equipment or any assembly,
\ncircuit, combination, method or process in which any of the Products may be used
\nbut not covering the Products standing alone; (ii) any trademark infringements
\ninvolving any marking or branding not applied by or requested by Company, or
\ninvolving any marking or branding applied by Company at the request of BUYER; or
\n(iii) the modification of the Products, or any part thereof, unless such
\nmodification was made by Company, where such infringement would not have
\noccurred but for such modifications.<\/p>\n
16.3 Disclaimer. COMPANY’S LIABILITY ARISING OUT OF OR RELATING TO
\n ———-
\nTHIS SECTION 16 SHALL NOT EXCEED THE AGGREGATE AMOUNTS PAID BY BUYER TO COMPANY
\nFOR THE ALLEGEDLY INFRINGING PRODUCTS THAT ARE THE SUBJECT OF THE INFRINGEMENT
\nCLAIM. THE FOREGOING PROVISIONS OF THIS SECTION 16 STATE THE ENTIRE LIABILITY
\nAND OBLIGATIONS OF COMPANY AND THE EXCLUSIVE REMEDY OF BUYER AND ITS CUSTOMERS,
\nWITH RESPECT TO ANY ALLEGED PATENT, COPYRIGHT OR TRADEMARK INFRINGEMENT BY THE
\nPRODUCTS OR ANY PART THEREOF.<\/p>\n
17. Limitation of Liability. Notwithstanding any other clause in this
\n ———————–
\nAgreement, in no event will Company be liable for any special, indirect,
\nincidental, punitive or consequential damages (including without limitation any
\ndamages for loss of data, use or profits) arising from or in connection with
\nthis Agreement or the use or performance of any Product whether in an action
\nbased on contract, tort or any other legal theory, whether or not Company has
\nbeen notified of the possibility thereof.<\/p>\n
Notwithstanding any other clause in this Agreement, in no event will
\nCompany’s total aggregate liability for any damages arising from or in
\nconnection with this Agreement or the use or performance of any Product whether
\nin actions based on contract, tort or any other legal theory, and whether or not
\nCompany has been notified of the possibility thereof, exceed the price paid by
\nthe BUYER for the relevant item or component of Product giving rise to the claim
\namortized on a straight line basis over [*] from the date of the applicable
\npurchase order.<\/p>\n
18. Termination. This Agreement may be terminated by either party:
\n ———–<\/p>\n
14<\/p>\n
Strategic Alliance [*] Lines Contract No. HT041101
\nTeleco Network Expansion<\/p>\n
(a) if the other party is in material breach of this Agreement and
\nfails to cure such breach within [*] of receiving written notice of the breach.
\nProvided that the breaching party continues to make diligent and good faith
\nefforts to cure the breach, the breaching party shall be granted a [*] extension
\nof time to cure the breach.<\/p>\n
(b) Upon [*] prior written notice if any of the following
\ncircumstances remain uncured: (i) if the other party becomes insolvent or unable
\nto pay its debts in the ordinary course of its business; (ii) if a voluntary or
\ninvoluntary petition under applicable bankruptcy laws is filed by or against the
\nother party; (iii) if a receiver is appointed for the business affairs of the
\nother party or the other party makes an assignment for the benefit of creditors;
\nor (iv) if the other party liquidates or ceases doing business as a going
\nconcern.<\/p>\n
Any provision of this Agreement, which by its nature survives termination,
\nshall survive termination of this Agreement.<\/p>\n
19. Training. Company shall offer technical training for BUYER’s
\n ——–
\npersonnel in accordance with Exhibit F<\/p>\n
20. Governing Law and Regulations. BUYER agrees to comply with all
\n —————————–
\nrelevant laws, export or otherwise of the United States to assure that the
\nProduct and Documentation are not exported or otherwise transferred in violation
\nof such laws. Prior to exporting or transferring the Product or Documentation,
\nBUYER shall obtain Company’s written consent and a license from the U.S.
\nDepartment of Commerce and\/or any other appropriate agency of the U.S.
\nGovernment, as required.<\/p>\n
21. General Provisions.
\n ——————<\/p>\n
21.1 No Liability for Other Party’s Acts. Neither party shall be
\n ———————————–
\nliable for any losses, injuries, or damages caused by or attributable to the
\nacts and\/or omissions of the other party, its employees, or its agents.<\/p>\n
21.2 Independent Contractors. The parties hereto agree that they are
\n ———————–
\nindependent contractors. This Agreement shall not be construed to create or
\nresult in a partnership or joint venture between the parties hereto, nor to make
\neither party the agent of the other party. This Agreement shall not create any
\nthird party beneficiary rights.<\/p>\n
21.3 Notices. Any notices, requests, demands or other communications
\nrequired or permitted under this Agreement shall be in writing and shall be
\nsufficiently communicated if delivered (i) in person or by means of a recognized
\ncourier service, (ii) sent by facsimile with written confirmation sent by
\nregular airmail, or (iii) if sent by registered airmail, return receipt
\nrequested, to the recipient party at its address appearing in the preamble
\nhereof or to such other address as such party may have designated for such
\npurpose by notice previously given to the other party in accordance with the
\nterms hereof.<\/p>\n
-15-<\/p>\n
Strategic Alliance [*] Lines Contract No. HT041101
\nTeleco Network Expansion<\/p>\n
COMPANY: UTStarcom, Inc.
\n Attn: Omar Graibe
\n Title: Managing Director
\n Caribbean & LatinAmerican (CALA)
\n 1581 Pines Blvd. #308,
\n Pembroke Pines, FL 33027 USA
\n Fax: +1 (954) 447 3320<\/p>\n
BUYER: Telecommunications D’Haiti S.A.M.
\n Title: Alphonse Inevil
\n Title: Director
\n FAX +509 45 2775<\/p>\n
Notices shall be deemed to have been received if delivered in person, on
\nthe same 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. Company reserves, and BUYER hereby grants to
\n —————–
\nCompany, a security interest in [*] until Company has received payment in full.
\nBUYER agrees at Company’s request to execute any and all financing statements
\nand to take such other action as Company may reasonably request to carry out the
\nintent of this Section.<\/p>\n
21.5 No Assignment. Neither party may assign its rights and\/or
\n ————-
\nobligations hereunder without the prior written consent of the other party,
\nwhich consent shall not be unreasonably withheld. Notwithstanding the
\naforementioned, Company reserves the right and Buyer agrees, that Company could
\nassign to a third party institution its financial rights related to this
\nAgreement.<\/p>\n
21.6 Jurisdiction. This Agreement shall be governed by, and
\n ————
\nconstrued in accordance with, the laws of California, U.S.A., without reference
\nto the conflict of laws provisions thereof.<\/p>\n
21.7 Publicity. The substance and timing of any written or other
\n ———
\npublic disclosure relating to this Agreement, in the form of a press release or
\nsimilar disclosure shall be subject to the prior written approval of both
\nparties.<\/p>\n
21.8 No Violation of Applicable Law. If any provision of this
\n ——————————
\nAgreement is held to be invalid under any applicable law, such provision shall
\nbe ineffective to the extent of such violation without invalidating other
\nprovisions of this Agreement.<\/p>\n
21.9 Conflicting Exhibits. In the event that any provision of the
\n ——————–
\nExhibits or any other attachments to this Agreement are deemed to be in conflict
\nwith the provisions of this Agreement, the provisions of this Agreement shall
\ncontrol.<\/p>\n
-16-<\/p>\n
Strategic Alliance [*] Lines Contract No. HT041101
\nTeleco Network Expansion<\/p>\n
21.10 No Waiver. Any failure by either party to enforce strict
\n ———
\nperformance by the other party of any provision herein shall not constitute a
\nwaiver of the right to subsequently enforce such provision or any other
\nprovision of this Agreement.<\/p>\n
21.11 Arbitration. Any controversy or claim arising out of or
\n ———–
\nrelated to this Agreement shall be submitted to binding arbitration in San
\nFrancisco, State of California, U.S.A in accordance with the then prevailing
\nInternational Chamber of Commerce (“ICC”) procedural Arbitration Rules. Any such
\narbitration shall be held in English before a single arbitrator who shall be
\nknowledgeable in telecommunications and data processing Products. The parties
\nconsent and submit to the jurisdiction of the Courts of the State of California,
\nUnited States of America in connection with any award made by the arbitrator(s).
\nEach party shall bear its own costs and expenses (including attorneys’ fees)
\nincurred in connection with this section.<\/p>\n
21.12 Non-Monetary Remedies. The parties hereby acknowledge that
\n ———————
\nmonetary damages may not be a sufficient remedy for breaches of the licensing
\nprovisions set forth in Exhibit B or of the Non-Disclosure Agreement annexed
\nhereto as Exhibit C and that either party may be entitled to such injunctive or
\nequitable relief for actions or claims alleging such breach(es) as may be deemed
\nproper by a court of competent jurisdiction.<\/p>\n
21.13 Force Majeure. Neither party shall be liable for damages
\n ————-
\nresulting from its failure to perform its obligations hereunder (other than the
\nobligation to make payments owing to the other party) if such failure arises out
\nof or in connection with any act of war, civil disturbance, strikes, earthquake,
\nflood, embargo, failure or unavailability of means of communication, failure or
\nunavailability of means of transportation or any other cause or event of force
\nmajeure beyond the reasonable control of the party failing to perform or of its
\nagents and contractors.<\/p>\n
21.14 Entire Agreement. This Agreement and the Exhibits hereto
\n —————-
\nconstitute the entire agreement between Company and BUYER relating to the
\nsubject matter hereof and supersede all statements, representations, and
\nunderstandings, which have been made by either party or their agents or
\nrepresentatives prior to the execution of this Agreement. No modification of
\nthis Agreement shall be binding upon either party unless made in writing and
\nexecuted on behalf of that party by its duly authorized representative.<\/p>\n
21.15 May Be Executed in Counterparts. This Agreement may be
\n ——————————-
\nexecuted in counterparts and by facsimile such that when taken together the
\ncounterparts shall be deemed a true original of the Agreement between the
\nparties.<\/p>\n
21.16 Contract Validity. The validity of this Contract is contingent
\n —————–
\nupon TELECO obtaining the License approval to operate in the proposed solution
\nfrequency band.<\/p>\n
Strategic Alliance [*] Lines Contract No. HT041101
\nTeleco Network Expansion<\/p>\n
IN WITNESS WHEREOF, a duly authorized representative of each party has
\nexecuted this Agreement as of the date set forth below.<\/p>\n
\n\nCOMPANY BUYER
\n
\nBy: \/s\/ Omar A. Graibe By: \/s\/ Patrick A. Joseph
\n ——————————— ————————————
\nName: Omar A. Graibe Name: Patrick A. Joseph<\/p>\nTitle: Managing Director, Caribbean Title: Directeur General, Telecommunications
\n and Latin America d’Haiti S.A.M.<\/p>\n
Date: 04\/12\/01 Date: 04\/12\/01
\n<\/c><\/s><\/caption>\n<\/table>\n
Price and Equipment Lists Exhibit A
\n Contract No. HT041101<\/p>\n
[*]<\/p>\n
[*]Strategic Alliance [*] Lines Contract No. HT041101
\nTeleco Network Expansion<\/p>\n
EXHIBIT B: END-USER SOFTWARE LICENSE
\n———<\/p>\n
The following terms and conditions shall constitute the license (“License”)
\nby which 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
\n —–
\nuse the Software [*]. Licensee may copy the Software only for backup purposes,
\nprovided that Licensee reproduces all copyright and other proprietary notices
\nthat are on the original copy of the Software.<\/p>\n
Restrictions. Licensee may not use, copy, modify, or transfer the
\n ————
\nSoftware, or any copy thereof, in whole or in part, except as expressly
\npermitted by this License. Licensee may not reverse engineer, disassemble,
\ndecompile, or translate the Software, or otherwise attempt to derive the source
\ncode of the Software, or permit any other person to do any of the foregoing.
\nAny attempt to transfer any right, duty or obligation in this License is void.
\nLicensee may not rent, lease, loan, resell for profit, or distribute the
\nSoftware, or any part thereof. License may not modify or create derivative
\nworks based on the Software in whole or in part.<\/p>\n
Ownership. The Software is not sold but is only licensed to Licensee for
\n ———
\nuse only 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
\n ———
\nthe Software. Licensor or its suppliers or licensors owns the Software.<\/p>\n
Term. This License will terminate immediately upon notice to Licensee if
\n —-
\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
\n ——————-
\nLICENSOR AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES INCLUDING THE
\nIMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-
\nINFRINGEMENT.<\/p>\n
Limitation of Remedies. IN NO EVENT SHALL LICENSOR OR ITS SUPPLIERS BE
\n ———————-
\nLIABLE TO LICENSEE OR TO ANY OTHER PERSON FOR ANY LOST PROFIT, CORRUPTION OR
\nLOSS OF DATA, INTERRUPTION OF BUSINESS, OR OTHER EXEMPLARY, SPECIAL, INDIRECT,
\nINCIDENTAL OR CONSEQUENTIAL DAMAGE OF ANY KIND ARISING OUT OF THE USE OR
\nINABILITY TO USE THE SOFTWARE, EVEN IF LICENSOR HAS BEEN ADVISED OF THE
\nPOSSIBILITY OF SUCH LOSS OR DAMAGE AND WHETHER OR NOT SUCH LOSS OR DAMAGE IS
\nFORESEEABLE.<\/p>\n
-20-<\/p>\n
Strategic Alliance [*] Lines Contract No. HT041101
\nTeleco Network Expansion<\/p>\n
Export Law. The Software and related technology are subject to U.S. export
\n ———-
\ncontrol laws and may be subject to export or import regulations in other
\ncountries. Licensee agrees strictly to comply with all such laws and
\nregulations and acknowledge that Licensee has the responsibility to obtain such
\nlicenses to export, re-export or import as may be required.<\/p>\n
General. The laws of the State of California, USA, will govern this
\n ——-
\nLicense. The Federal and State Courts located in San Francisco County,
\nCalifornia, USA shall have sole jurisdiction over all disputes arising in
\nconnection with this License. If any provision of this License is held to be
\nunenforceable, that provision will be removed and the remaining provisions will
\nremain in full force. This License is the complete and exclusive statement of
\nthe agreement between Licensee and Licensor and supersedes all prior agreements,
\noral or written, and all other communications between Licensee and Licensor in
\nrelation to the subject matter of licensing the Software.<\/p>\n
Licensee agrees to the terms and conditions set forth above in this License
\nas of the effective date of this agreement date.<\/p>\n
-2-<\/p>\n
Strategic Alliance [*] Lines Contract No. HT041101
\nTeleco Network Expansion<\/p>\n
EXHIBIT C: MUTUAL NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT
\n——— <\/p>\n
THIS AGREEMENT IS ENTERED INTO BY AND BETWEEN COMPANY, INC., 1275 HARBOR
\nBAY PARKWAY, SUITE 100, ALAMEDA, CA 94502 (“Company”) AND TELECOMMUNICATIONS
\nD’HAITI S.A.M. (“BUYER”).<\/p>\n
1. This Agreement shall apply to all confidential and proprietary
\ninformation disclosed by the parties to the other, including but not limited to
\nconfidential product planning information, product specifications and other
\nproprietary and business and technical information (hereinafter referred to as
\n“Confidential Information”). As used herein, “Confidential Information” shall be
\nin written, graphic, machine recognizable or other tangible or electronic form
\nand marked “Confidential” or “Proprietary” or shown by implication that it is
\nimparted or disclosed in confidence, or if disclosed orally or visually, shall
\nbe reduced to writing in summary form, identified as “Confidential Information”
\nand sent to the Receiving Party within 15 days following such oral or visual
\ndisclosure.<\/p>\n
2. Company and BUYER mutually agree to hold the other party’s Confidential
\nInformation in strict confidence and not to disclose such Confidential
\nInformation to any third parties except after receiving prior consent by the
\ndisclosing party in writing. Company and BUYER shall use the same degree of
\ncare to avoid disclosure of such Confidential Information as each employs with
\nrespect to its own proprietary information of like importance or a greater
\ndegree if reasonable.<\/p>\n
3. Company and BUYER agree that they will not use the other party’s
\nConfidential Information for any purpose other than for the intended purposes,
\nwithout the prior written permission of the other party.<\/p>\n
4. Company and BUYER mutually agree they may disclose such Confidential
\nInformation to their respective responsible employees with a bona fide need to
\nknow, and Company and BUYER agree to instruct all such employees not to disclose
\nsuch Confidential Information to third parties and will ensure that such
\nemployees have agreed to similar non-disclosure provisions with Company or the
\nBUYER, its own employees respectively.<\/p>\n
5. Information shall not be deemed Confidential Information and the
\nreceiving party shall have no obligation regarding any information for which it
\ncan be proven in written documentation (a) is already known to the receiving
\nparty at the time that it is disclosed without use of the Confidential
\nInformation; (b) is or becomes publicly known through no wrongful act contrary
\nto this Agreement of the receiving party; (c) is rightfully received from a
\nthird party without obligation of confidence or restriction on disclosure from
\nreceiving party and without breach of this Agreement; (d) is independently
\ndeveloped by the receiving party without use of Confidential Information; (f) is
\ndisclosed pursuant to a requirement of a valid court order provided that the
\nReceiving Party provides (i) prior written notice for the disclosing party of
\nsuch obligation and (ii) the opportunity to oppose such disclosure and (iii) it
\nis disclosed for the extent and purposes or the order only.<\/p>\n
-22-<\/p>\n
Strategic Alliance [*] Lines Contract No. HT041101
\nTeleco Network Expansion<\/p>\n
6. All Confidential Information shall remain the property of the
\ndisclosing party, and upon the written request of either party, the other party
\nshall promptly return to the disclosing party all Confidential Information
\ndisclosed to it and all copies thereof or at the disclosing party’s option shall
\ndestroy all such Confidential Information and shall provide the receiving party
\nwith a certificate that all Confidential Information has been destroyed.<\/p>\n
7. Company and BUYER recognize and agree that nothing contained in this
\nAgreement shall be construed as granting any rights, by license or otherwise to
\nany Confidential Information disclosed pursuant to this Agreement.<\/p>\n
8. This agreement shall be binding upon and inure to the benefit of the
\nparty’s successors and assigns. This Agreement shall not be assignable by either
\nparty for the written consent of the other party, and any purported assignment
\nnot permitted hereunder shall be void. This document constitutes the entire
\nagreement between the parties with respect to the subject matter hereof, and
\nshall supersede all previous, understandings and agreements, either oral or
\nwritten, between the parties or any official or representative thereof.<\/p>\n
9. The obligations undertaken by each party pursuant to this Agreement
\nshall remain in effect for three years from the last date of disclosure of
\nConfidential Information, and shall survive any termination or expiration
\nhereof.<\/p>\n
10. None of the Confidential Information disclosed by the parties
\nconstitutes any representation, warranty, assurance, guarantee or inducement by
\neither party to the either with respect to the infringement of trademarks,
\npatents, copyrights; any right of privacy; or any rights of third persons.<\/p>\n
11. The parties hereto are independent contractors.<\/p>\n
12. This Agreement may be modified only by written amendment signed by both
\nparties. This Agreement shall be construed in accordance with the laws of the
\nState of California without regard to the conflict of laws provisions and shall
\nbe subject to the jurisdiction of the courts of the State of California.<\/p>\n
13. The receiving party may make copies of Confidential Information only to
\nthe extent necessary for the purpose of this Agreement provided that the copies
\nare marked “Confidential” and treated as Confidential Information in accordance
\nwith the terms of this Agreement.<\/p>\n
14. Accordingly, nothing in this Agreement will be construed as a
\nrepresentation or inference prohibiting either party from developing products,
\nhaving products developed for it, from entering into joint ventures, alliances,
\nor licensing arrangements that all without violation of this Agreement, compete
\nwith the products or systems embodying the Confidential Information.<\/p>\n
-23-<\/p>\n
Strategic Alliance [*] Lines Contract No. HT041101
\nTeleco Network Expansion<\/p>\n
EXHIBIT D: BUSINESS PLAN AND PROJECT COMMERCIAL MILESTONES
\n——— <\/p>\n
[*]<\/p>\n
-24-<\/p>\n
Project Implementation Schedule Exhibit E
\n Contract No. HT041101<\/p>\n
[*]<\/p>\n
-25-<\/p>\n
EXHIBIT F: TRAINING AND TECHNOLOGY TRANSFER
\n——— <\/p>\n
-26-<\/p>\n
TRAINING COURSE<\/p>\n
Participants: [*]
\n Time: [*]
\n Duration: [*] <\/p>\n
Objectives:<\/p>\n
. Describe the proposed solution features and characteristics,
\n including an introduction to the PHS air interface characteristics
\n and to facilitate network planning and system configuration.
\n . Describe the features and functions of each component of the
\n proposed solution equipment set, to support the operation and
\n maintenance of the equipment by Teleco’s personnel during and
\n after the installation.
\n . Train personnel in the use of the [*] as part of its operations
\n with the various elements of proposed solution.<\/p>\n
Training Course Summary:<\/p>\n
[*]<\/p>\n
[*]<\/p>\n
-27-<\/p>\n
EXHIBIT G: FINAL ACCEPTANCE CERTIFICATE
\n ——— <\/p>\n
-28-<\/p>\n
FINAL ACCEPTANCE CERTIFICATE
\n —————————-<\/p>\n
DATE:_________________________________<\/p>\n
CONTRACT:_____________________________<\/p>\n
PHASE #:______________________________<\/p>\n
PHASE AMOUNT:_________________________<\/p>\n
CUSTOMER:_____________________________<\/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 BY
\n UTSTARCOM AND\/OR ITS AGENTS OR SUBCONTRACTORS.<\/p>\n
3) ALL TRIAL PERIODS, PRELIMINARY TESTING, COMMISSIONING AND FINAL ACCEPTANCE
\n TESTING AS REQUIRED FOR THE ABOVE-DESCRIBED PHASE HAS BEEN COMPLETED TO THE
\n FULL SATISFACTION OF THE CUSTOMER.<\/p>\n
4) ALL SERVICES TO BE PROVIDED TO THE CUSTOMER PRIOR TO AND AS A PART OF FINAL
\n ACCEPTANCE TESTING, AS REQUIRED BY THE ABOVE-DESCRIBED CONTRACT, HAVE BEEN
\n SUBSTANTIALLY COMPLETED TO THE FULL SATISFACTION OF THE CUSTOMER.<\/p>\n
5) UTSTARCOM IS ENTITLED TO FULL PAYMENT OF THE CONTRACT AMOUNT FOR THE PHASE
\n 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
-29-<\/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-42847","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\/42847","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=42847"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42847"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42847"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42847"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}