{"id":42877,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/supply-agreement-matsushita-electric-industrial-co-ltd-and.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"supply-agreement-matsushita-electric-industrial-co-ltd-and","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/supply-agreement-matsushita-electric-industrial-co-ltd-and.html","title":{"rendered":"Supply Agreement &#8211; Matsushita Electric Industrial Co. Ltd. and UTStarcom Inc."},"content":{"rendered":"<pre>\n                                SUPPLY AGREEMENT\n\n      THIS AGREEMENT, made and entered into as of this 1st day of April, 2000,\nby and among Matsushita Electric Industrial Co., Ltd., acting through its\nCorporate Management Division for China, a Japanese Corporation, having its\nprincipal office at 3-2 Minami-Semba 4-chome, Chuo-ku, Osaka, Osaka 542-8588,\nJapan (hereinafter \"MEI\"), Matsushita Communication Industrial Co., Ltd., acting\nthrough its Personal Communication Division, a Japanese corporation, having its\nprincipal office at 3-1 Tsunashima-Higashi 4-chome, Kohoku-ku, Yokohama,\nKanagawa 223-8639, Japan (hereinafter \"MCI\") (\"MEI\" and \"MCI\" are collectively\ncalled \"Seller\") and UTStarcom Inc., a Delaware corporation, having its\nprincipal office at 1275 Harbor Bay Parkway, Suite 100, Alameda, California\n94502, U.S.A. (hereinafter \"Buyer\").\n\n                                   WITNESSETH:\n\n      WHEREAS, Buyer is desirous of purchasing from Seller certain Components of\nwireless local loop system (hereinafter defined) to have its affiliate in P. R.\nChina assemble those Components into complete sets for sale thereof in P. R.\nChina except for Hong Kong, and\n\n      WHEREAS, Seller is willing to supply such components to Buyer under the\nterms and conditions herein contained,\n\n        NOW, THEREFORE, in consideration of the mutual promises set forth herein\nand the mutual covenants herein contained, both parties hereto agree as follows:\n\n                                    CLAUSE 1\n\n                                   DEFINITIONS\n\n      1.01  The term \"Products\" means personal stations (hereinafter \"PS\") with\nBuyer's brand name of which model numbers are described in SCHEDULE A attached\nhereto as an integral part hereof. The parties hereto also agree that even\nduring the term of this Agreement, models of the Products may be, in writing,\nadded to and\/or removed from the SCHEDULE A upon mutual agreement. The diagrams\nof the Products shall be mutually discussed and agreed by the parties hereto in\nwritten instruments to be attached hereto as an integral part hereof, SCHEDULE\nB.\n\n      1.02  The term \"Components\" means such electric, electronic and\/or\nmechanical components, parts, pieces or sub-assemblies including packaging\ncomprising Products, as will be from time to time so identified by Seller. The\nspecifications of the Components shall be separately agreed by the parties\nhereto in writing.\n\n      1.03  The term \"Buyer's Affiliate\" means UTStarcom (Hangzhou) Telecom \nCo., Ltd., a Chinese corporation, having its principal office at 3 Yile \nIndustrial Park, Bldg. 2\/3 129 Wen Yi Road, Hangzhou 310012, P. R. China, \nwhich purchases the Components from Buyer and assembles the Components into \ncomplete sets for the sale thereof in [* * *] under the terms and conditions \nhereof. \n\n[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY\nWITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT\nTO THE OMITTED PORTIONS.\n\n\n\n                                    CLAUSE 2\n\n                               BUYER'S AFFILIATES\n\n      2.01  Seller hereby agrees and acknowledges that Buyer's Affiliate\npurchases the Components through Buyer and assembles them into complete sets of\nProducts for the resale [* * *], provided that Buyer shall have Buyer's\nAffiliate assume the same obligation of Buyer herein and [* * *] shall obtain\nimport license, type approval or any other necessary governmental or\nadministrative license or approval and taking any procedures and steps necessary\nto comply with the laws and regulations of the [* * *] and resale of the\nComponents in the form of the Products shall be at the responsibility and cost\nof [* * *].\n\n                                    CLAUSE 3\n\n                              SUPPLY OF COMPONENTS\n\n      3.01  For the effective term of this Agreement and subject to the terms \nand conditions herein contained, Seller agrees to sell to Buyer and Buyer agrees\nto purchase from Seller on [* * *] basis certain Components only for the purpose\nof the assemble of the Components and the sale of the Products by Buyer's\nAffiliate [* * *], solely in the manner set forth in Clause 4 hereof. \n\n                                    CLAUSE 4\n\n                                MANNER OF SUPPLY\n\n      4.01  Firm (non-cancelable) orders for the Components shall be placed by\nBuyer to Seller, in writing and in accordance with this Clause 4 hereof, [* *\n*]. Such orders shall be placed to Seller in writing at least [* * *] prior to\nthe shipment date requested therein. Seller will consider the purchase orders\nfrom Buyer, and shall have [* * *] to accept such orders. In case of acceptance,\nSeller shall notify Buyer of the delivery date within [* * *] of Seller after\nthe receipt of the relative firm order, and until such notification is made, no\norder shall be binding on [* * *].\n\n      4.02  All deliveries of the Components shall be made on basis of [* * *],\nwhich shall be interpreted in accordance with the latest [* * *]. \n\n      4.03  The parties hereto agree that the contracted minimum quantities \nshall be [* * *] units of the Components to be assembled into Products during \nthe term of this Agreement.\n\n      4.04  The payment for the Components shall be made by Buyer to Seller by\nmeans of telegraphic transfer of funds to the bank account designated by MEI, to\nbe made at least [* * *] prior to the scheduled shipment date of relative\nComponents, provided that any shipment of Components should be made by [* * *].\nNotwithstanding the foregoing, in case Buyer desires and \n\n[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY\nWITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT\nTO THE OMITTED PORTIONS.\n\n\n                                      -2-\n\n\nSeller agrees, the payment for the Components may be made by Buyer to Seller by\nmeans of [* * *], negotiable [* * *] after the date of Bill of Lading, to be\nopened in favor of MEI.\n\n      4.05  The prices of the Components shall be separately discussed and\nmutually agreed from time to time by the parties hereto based on the following\nconditions: \n\n            (a)   that prices of all items of the Components shall be quoted on\nbasis of [* * *]; \n\n            (b)   that the prices of all items of the Components shall be\nquoted in the currency of US dollars; and \n\n            (c)   that any price change, if any is agreed by the parties during \nits validity, shall be applied only to such individual contracts as are made \nafter the date of such price change.\n\n      4.06  The minimum quantities of each order shall be [* * *] of the\nComponents.\n\n                                    CLAUSE 5\n\n                        USE OF COMPONENTS AND TRADEMARK\n\n      5.01 Seller shall Affix Buyer's brand name and\/or its trade name\ndesignated by Buyer (\"Buyer's Mark\") on such items of the Components as mutually\nagreed.\n\n      5.02 Seller acknowledges that Buyer has appropriate interest in the\nBuyer's Mark and that no right, interest, ownership or privilege of use of such\nBuyer's Mark is accorded to Seller by reason of the relationship herein\nestablished. Buyer warrants and represents that Buyer is a sole and exclusive\nowner of Buyer's Mark as applied to the Components\/Products. Buyer agrees to\nindemnify and hold harmless Seller from and against any claim of trademark\ninfringement by reason of the use of Buyer's brand on or in connection with the\nComponents\/Products hereunder.\n\n                                    CLAUSE 6\n\n                                    WARRANTY\n\n      6.01 Buyer shall submit to Seller a [* * *] report detailing the quality\nproblem of the Components occurring in the market during the term hereof and [*\n* *] periods after the last delivery of the Components hereunder. Further, Buyer\nshall submit to Seller samples of the Components alleged to be defective upon\nrequest of Seller.\n\n      6.02 Buyer shall be responsible for warranty\/servicing of the Products and\nany claims made by any third party against the Products once Buyer distributes\nor has distributed the Products in the market.\n\n      6.03 Buyer shall inspect, pursuant to Military Standard 105E in effect as\nof the date of this Agreement attached hereto as SCHEDULE C and made a part\nhereof, the Components delivered by\n\n[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY\nWITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT\nTO THE OMITTED PORTIONS.\n\n\n                                      -3-\n\n\nSeller as set forth in CLAUSE 4.02 hereof within [* * *] after the delivery to\nBuyer and notify Seller of its result within [* * *] after Buyer's finding \n[* * *] shortage in the quantities of the Components delivered or [* * *] \nComponents which do not meet [* * *] of the specifications of the Components\nagreed by both parties hereto. Unless Seller received a notice from Buyer within\nsuch a period, the Components shall be deemed to be accepted by Buyer. Upon the\nrequest by Seller, Buyer shall submit the allegedly non-conforming Components to\nSeller for Seller's inspection. Seller shall provide Buyer with the analysis\nreport for such allegedly non-conforming Components within one (1) week after\nreceipt of the notice by Buyer hereof. In case such shortage in quantities or\nsuch non-conforming Components is solely attributable to Seller, Seller shall\narrange to deliver the missing or replacing Components within [* * *] after the\nproduction of Seller's analysis report.\n\n      6.04 Even after Buyer's inspection set forth in CLAUSE 6.03 above, if\nnon-conforming Components are found in the assembling line of Buyer's Affiliate\nwithin [* * *] after the delivery of the Components, Buyer shall notify Seller\nof such non-conforming within [* * *] after Buyer's finding [* * *]\nnon-conformance of the Components. Upon the request by Seller, Buyer shall\nsubmit the allegedly non-conforming Components to Seller for Seller's\ninspection. Seller shall provide Buyer with the analysis report for such\nallegedly non-conforming Components within [* * *] after receipt of the notice\nby Buyer hereof. In such non-conformance is solely attributable to Seller,\nSeller shall arrange to deliver the replacing Components within [* * *] after\nthe production of Seller's analysis report.\n\n      6.05 In the event that any large quantity malfunction or defects of the\nComponents are found during the inspection or assembling line at Buyer's\nAffiliate premise, Seller shall dispatch its engineers to the Buyer's Affiliate\npremise within [* * *] after the receipt of the notice from Buyer for\ninvestigating and remedying such large quantity malfunction or defects of the\nComponents. If Seller's dispatched engineers recognize that those malfunction or\ndefects are solely attributable to Seller and cannot establish their remedy\nwithin [* * *] from their dispatch, Seller shall promptly arrange, at its own\ncost and responsibility, the shipment of the replacing Components. The\ndefinition of \"large quantity\" referred in this CLAUSE 6.05 shall mean [* * *]\ndefective rates for major defects and minor defects as set forth in SCHEDULE C.\n\n      6.06 Seller shall supply the Components of the Products to Buyer and \nBuyer shall purchase such Components from Seller, in the manner set forth in\nCLAUSE 4 hereof, without any warranty by Seller and\/or any of its affiliates\nthat (i) the complete sets of Products assembled by Buyer's Affiliate from\nComponents hereunder and (ii) the assembling process or method of the Components\ninto the Products. Licenses or permissions if any necessary to assemble, sell or\notherwise dispose of the complete sets of Products under any right owned or\ncontrolled by third parties shall be acquired by Buyer at its own risk and\naccount.\n\n      6.07 (a) Seller agrees to indemnify and hold harmless Buyer from and\nagainst any claim made by any third party that the Component supplied hereunder\ninfringe the rights of such third party in respect to patent, design, copyright\nor any other intellectual property right in [* * *] (hereinafter \"Intellectual\nProperty Right\"), and Seller shall assume the defense of any action, suit or\nproceeding against Buyer relating thereto and shall pay any damages assessed\nagainst or otherwise payable by Buyer as a result of the final disposition of\nany such claim, action, suit or proceeding, \n\n[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY\nWITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT\nTO THE OMITTED PORTIONS.\n\n\n                                      -4-\n\n\nprovided, that Buyer promptly notifies Seller of the commencement of any action,\nsuit or proceeding, or threats thereof, and furnished to Seller all documents\nrelating thereto, and further provided, that Seller is afforded the opportunity,\nin its sole and absolute discretion, to determine the manner in which such\naction, suit or proceeding shall be handled or otherwise disposed of. Buyer\nshall give Seller the cooperation Seller reasonably required, at Seller's sole\ncost and expense for reasonable out-of-pocket expenses incurred by Buyer and\npaid to third parties (except for salaries for Buyer's employees and fees and\nexpenses of any counsel retained by Buyer in the defense of such claim, suit,\naction or proceeding). Notwithstanding the foregoing, Buyer may be represented\nin any suit by its own counsel at its own cost and expense; provided, however,\nthat Buyer shall not consent to any settlement, judgment or decree in any such\nsuit or pay or agree to pay any sum of money or agree to do any other act in\ncompromise of such claim of a third party without first obtaining Seller's\nconsent thereto in writing.\n\n      (b) In the event that the use or sale of the Components as a part of\nProducts is preliminary or permanently enjoined by reason of any third party\nIntellectual Property Right, Seller shall use its best effort, at Seller's sole\ncost and expense, take any of the following actions, in Seller's sole and\nabsolute discretion: (i) procure for Buyer the right to continue the use and\/or\nsale of the Components as part of Products; or (ii) provide Components which do\nnot infringe such Intellectual Property Right and upon Seller's fulfillment of\n(i) or (ii) above, Seller shall thereafter be relieved of any further obligation\nor liability to Buyer as the result of or in connection with such infringement;\nprovided, however, that if Seller elects either (i) or (ii) above, then to the\nextent that Seller is required to incur additional costs, the prices for the\naffected Components shall be renegotiated in good faith by the parties to take\ninto such increased costs, \n\n      (c) Notwithstanding anything herein to the contrary, the provisions of\nthis CLAUSE 6.07 shall not apply to (i) any designs, specifications, or\nmodifications supplied by Buyer or any items incorporated into the Components by\nSeller at Buyer's request (whether or not such items are manufactured by Seller\nor supplied by Buyer or third parties) or (ii) any combination or use of the\nComponents by Buyer or its customer(s) with other equipment or devices; but,\nrather, in such cases, Buyer shall indemnify, defend and hold harmless Seller\nfrom and against any and all liabilities, costs, expenses, losses and damages of\nany nature, including counsel fees and expenses arising out of or relating to\nall claims that the same infringe on any Intellectual Property Right of any\nthird parties. \n\n      (d) In any event, Seller's responsibility stipulated in this CLAUSE \nshall be limited to the total amount of the payment by Buyer for the Components.\n\n      6.08 Business operations of Buyer (including assembly, sale or other\ndisposition, quality guarantee to customers, product liability, servicing and\nadvertising of complete set of any Product assembled by Buyer's Affiliate) shall\nbe entirely for Buyer's own account and at Buyer's sole responsibility, and\nSeller (including Seller's affiliates and subsidiaries) shall not be responsible\nto Buyer, Buyer's Affiliate and any third party. Buyer shall indemnify for and\nhold Seller (including Seller's affiliated companies and subsidiaries) harmless\nfrom any losses, damages, costs and expenses arising out of or connection with\nbusiness operations as provided in this CLAUSE. \n\n[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY\nWITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT\nTO THE OMITTED PORTIONS.\n\n\n                                      -5-\n\n\n      6.09 EXCEPT FOR THE ABOVE EXPRESS LIMITED WARRANTY, SELLER MAKES AND \nBUYER RECEIVES NO WARRANTY ON THE COMPONENTS, EXPRESS OR IMPLIED, STATUTORY, OR \nIN ANY OTHER PROVISION OF THIS AGREEMENT OR COMMUNICATION WITH BUYER, AND SELLER\nSPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A\nPARTICULAR PURPOSE, INCLUDING, WITHOUT LIMITATION, FITNESS FOR COMBINATION WITH\nANY INTERFACE DEVICES TO BUILD UP ANY SYSTEM. \n\n                                    CLAUSE 7\n\n                  SERVICE, INFORMATION, INSTRUCTION AND ADVICE\n\n      7.01 In case Buyer expects Seller to disclose and Seller deems it\nappropriate or in case Seller deems it necessary, Seller may, furnish or may\nhave a Seller's subsidiary or affiliates furnish Buyer with a certain technical\nservice, information, instruction and\/or advice including, but not limited to,\ndispatching Seller's engineers or engineers designated by Seller to Buyer's\nAffiliate factory for the quality assurance of the Components and the\ninstallation\/commissioning of certain production equipment which are necessary\nfor assembling Components, to be used by Buyer or Buyer's Affiliate only for the\npurpose of the assembly of the complete sets of the Products from the Components\nby Buyer's Affiliate.\n\n                                    CLAUSE 8\n\n                               SERVICE AFTER SALE\n\n      8.01 Repair and other service after sale for the users of the Components\nas Products shall be at the cost and responsibility of Buyer. Seller will\nprovide Buyer with replacement parts for the Components on terms and conditions\nto be mutually agreed upon by the parties from time to time during the retention\nperiod provided for in Schedule D attached hereto as an integral part hereof.\n\n      8.02 If the parties agree on a service training for the Products, Seller\nwill provide that in accordance with the agreed terms and conditions, provided\nthat Buyer shall reimburse Seller for [* * *].\n\n                                    CLAUSE 9\n\n                               TERM &amp; TERMINATION\n\n      9.01 This Agreement shall become effective as of the date first above\nwritten (herein referred to as Effective Date), and thereafter shall remain in\nforce and effect until the end of [* * *], unless earlier terminated in\naccordance with any other provisions of this Agreement.\n\n[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY\nWITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT\nTO THE OMITTED PORTIONS.\n\n\n                                      -6-\n\n\n      By mutual agreement at least [* * *] prior to expiration hereof, this\nAgreement may be extended for the duration mutually agreed to in writing.\n\n      9.02 Either party hereto has the right to terminate this Agreement by\ngiving a written notice to the other party in case such other party shall have\nbeen in a breach and\/or default of the provisions of this Agreement, and such\nbreach and\/or default shall not have been corrected within [* * *] after receipt\nof notice specifying the nature of such breach and\/or default.\n\n      9.03 Seller may at any time terminate this Agreement immediately by \ngiving a written notice to Buyer upon any of the following events:\n\n                  1) Any arrangement with direction or any application for \nbankruptcy, receivership, winding up or other similar proceeding against Buyer \nand\/or Buyer's Affiliate shall be made by Buyer, Buyer's Affiliate or any other \nperson;\n\n                  2) All of or, in the opinion of [* * *], substantial part of \nthe assets of Buyer and\/or Buyer's Affiliate shall be seized or attached in \nconjunction with any action against Buyer and\/or Buyer's Affiliate by any third \nparty; \n\n                  3) A sale of all of or in the opinion of [* * *] \nsubstantially all of the assets of Buyer is made, or this Agreement is assigned \nby Buyer and\/or Buyer's Affiliate without the prior written consent of Seller; \n\n                  4) There occurs any such change in the capital ownership \nand\/or management control of Buyer and\/or Buyer's Affiliate as, in the opinion \nof [* * *], may adversely affect the performance of this Agreement and\/or the \nbenefits or rights of Seller in this Agreement; \n\n                  5) There occurs any difficulties, in [* * *] opinion, to \nperform the obligation under this Agreement due to any of significant changes of\nthe political, economic or taxation policy by the governmental or \nquasi-governmental organization or agencies in the [* * *]; \n\n                  6) [* * *] judges that the quality of the Products assembled \nby Buyer's Affiliate hereunder is found to be insufficient and such \ninsufficiency seems not to be corrected within [* * *]; and \n\n                  7) An import license of the Components into the [* * *] \nand\/or an import license of the Components from Buyer to Buyer's Affiliate is \nnot obtained from the competent authority of the Government of the [* * *] (to \nthe extent that such license is required by law) within [* * *] from the \nEffective Date hereof. \n\n      9.04 Termination or expiration of this Agreement shall not affect the\nright of Seller or Buyer which shall have accrued hereunder including, without\nlimitation, the Seller's right to receive payment of the Components and the\nBuyer's right to receive the Components ordered but not delivered yet. However,\nif this Agreement is terminated due to any breach of this Agreement by either\nparty, the other party shall have the right to cancel any firm order accepted by\nSeller without any liability to the breaching party. \n\n[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY\nWITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT\nTO THE OMITTED PORTIONS.\n\n\n                                      -7-\n\n\n      9.05 No failure or delay on the part of either party hereto to exercise\nits right of termination of this Agreement for any one or more of the causes\nspecified herein, shall be construed to prejudice its rights of termination\nhereof for any other or subsequent reason.\n\n                                   CLAUSE 10\n\n                               GENERAL PROVISIONS\n\n      10.01 EXCEPT FOR THE EXPRESS LIMITED WARRANTY IN CLAUSE 6 HEREOF AND THE\nEXPRESS WARRANTY IN CLAUSE 11.05 HEREOF, EACH PARTY'S LIABILITY FOR ANY LOSS OR\nDAMAGE ARISING OUT OF OR RESULTING FROM THESE TERMS AND CONDITIONS OR FROM ITS\nPERFORMANCE OR BREACH, OR IN CONNECTION WITH THE COMPONENTS PURCHASED HEREUNDER\nSHALL IN NO CASE EXCEED THE PURCHASE PRICE FOR THE SPECIFIC COMPONENT WHICH GIVE\nRISE TO THE CLAIM. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT,\nSPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (WHETHER FORESEEABLE OR NOT), NOR\nFOR DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LOSS OF CONTRACTS, OR\nANTICIPATED SAVINGS (WHETHER FORESEEABLE OR NOT), IN CONTRACT, TORT, (INCLUDING\nNEGLIGENCE), BREACH OF STATUTORY DUTY, PRODUCT LIABILITY OR OTHERWISE, ARISING\nFROM THIS AGREEMENT OR INDIVIDUAL CONTRACTS HEREUNDER, EVEN IF IT HAS BEEN\nADVISED OF THE POSSIBILITY OF SUCH DAMAGE. \n\n      10.02 Neither this Agreement nor any rights or obligations hereunder shall\nbe assignable or otherwise transferable by either party hereto, voluntarily or\nby operation of law or otherwise, without the prior written consent of the other\nparty, and any assignment or transfer without such consent shall be null and\nvoid.\n\n      10.03 Neither party hereto shall be liable for delay or failure in the\nperformance of this Agreement and\/or individual purchase orders under this\nAgreement arising from any of the following matters: (i) acts of God or public\nenemy or war (declared or undeclared); (ii) acts of persons engaged in\nsubversive activities or sabotage; (iii) fires, floods, explosions, or other\ncatastrophes; (iv) epidemics or quarantine restrictions; (v) strikes, slowdowns,\nlockouts or labor stoppage or disputes of any kind; (vi) freight embargo or\ninterruption of transportation; (vii) unusually severe weather; (viii) delays of\na supplier of Seller due to any the above causes or events; and the time for\nperformance by such party shall be extended by the period of any such delay.\n\n      Notwithstanding the foregoing, should any delay resulting from such an\nevent of Force Majeure set forth above exceed [* * *], either party may\nterminate this Agreement or the portion of this Agreement so delayed.\n\n      10.04 Any confidential information owned by Seller prior to this Agreement\nor developed by Seller (or its parent, subsidiaries affiliates) during the term\nhereof and disclosed to Buyer in connection with subject matter hereof and the\ncontents and existence of this Agreement shall not be \n\n[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY\nWITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT\nTO THE OMITTED PORTIONS.\n\n\n                                      -8-\n\n\ndisclosed by Buyer to any third party. The parties agree that the contents of\nthis Agreement shall be prohibited unless required by any governmental or\nregulatory agency, including, but not limited to the Limited States Securities\nand Exchange Commission (SEC). The parties agree that if such disclosure is so\nrequired by any governmental or regulatory agency, the parties shall seek to\nkeep confidential all material terms of the contract, as may be allowed by said\nagency's provisions for confidential treatment of this Agreement.\n\n      10.05 This Agreement shall be governed and construed in accordance with\nthe laws of Japan without reference to its conflict of law principles.\n\n      10.06 Any and all disputes, controversies or differences which may arise\nbetween the parties hereto out of or in relation to this Agreement shall be\nsettled between the parties hereto by their amicable endeavors.\n\n      However, if in spite of such amicable endeavors of the parties hereto, no\nsuch solution can be reached within [* * *] after occurrence of such disputes,\ncontroversies or differences, then, they shall be finally settled (without being\nsubmitted to any court), except as otherwise expressly provided herein. In case\nSeller initiates the arbitration, the arbitration shall take place in San\nFrancisco, California, U.S.A., in accordance with the arbitration rules of\nAmerican Arbitration Association. In case Buyer initiates the arbitration, the\narbitration shall take place in Tokyo, Japan in accordance with the arbitration\nrules of Japan Commercial Arbitration Association. Judgment upon the award\nrendered may be entered in any court having jurisdiction or application may be\nmade to such court for a judicial acceptance of the award and an order of\nenforcement, as the case may be. \n\n      10.07 The CLAUSES 2.01, 3.01, 5.02, 6.02, 6.03, 6.04, 6.05, 6.06, 6.07,\n6.08, 6.09, 8.01, 9.04, 9.05, 10.01, 10.04, 10.05, 10.06, 10.07 and 11 hereof\nshall survive the expiration or the termination of this Agreement.\n\n      10.08 This Agreement contains the entire and only agreement between the\nparties hereto with respect to the subject matter herein contained, and this\nAgreement supersedes and cancels all previous agreements, negotiations,\ncommitments and writings with respect thereto, and may not be released,\ndischarged, abandoned, changed or modified in any manner, orally or otherwise,\nexcept by an instrument in writing signed by a duly authorized officer or\nrepresentative of the parties hereto.\n\n                                   CLAUSE 11\n\n                                 EXPORT CONTROL\n\n      11.01 In no event shall Seller be bound by any terms and conditions that\ncontravene any export laws, regulations or other restraints of any relevant\ncountries including but not limited to Japan and the U.S.A. All orders are\nsubject to the obtaining of any required licenses under the said relevant laws.\nBuyer shall, upon Seller's request, furnish Seller with all information and\ndocumentation necessary for Seller in obtaining and complying with the required\nlicenses.\n\n[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY\nWITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT\nTO THE OMITTED PORTIONS.\n\n\n                                      -9-\n\n\n      11.02 In the event that any and all the Products including replacement\nparts thereto to be purchased by Buyer from Seller and any technical documents\nor technical services to be supplied by Seller to Buyer relating thereto\n(hereinafter collectively called \"GOODS\") are included in and remain the\n\"restricted subject\" whose export is controlled under the Foreign Exchange and\nForeign Trade Law and its relevant governmental\/administrative regulations of\nJapan, Buyer shall provide Seller with the \"End-Use Statement\" supplied by\nSeller and signed by Buyer, which is required for Seller to obtain approvals of\nthe Japanese Government, and Buyer shall strictly comply with any and all\nprovisions set forth therein. Specifically, Buyer shall not change the end-use\nof GOODS set forth therein nor transfer the GOODS to any country other than the\ncountries set forth therein. In the event that Buyer is not the end-user of\nGOODS, Buyer shall, upon request of Seller, make Buyer's customer(s) sign such\nEnd-Use Statement and make such customer(s) understand and comply with any and\nall the provisions therein. Buyer further agrees, upon request of Seller, to\nrender the assistance necessary for Seller to check and verify the compliance\nwith provisions of End-Use Statement by Buyer or its customer(s).\n\n      11.03 During and after the term of this Agreement, Buyer shall not sell,\nlease or otherwise dispose of GOODS, directly or indirectly, to any customer who\nmakes use of, is likely to or intends to make use of GOODS for \"Military\nPurposes.\" In this Clause, \"Military Purposes\" means the design, development,\nmanufacture or use of any weapon including without limitation nuclear weapon,\nbiological weapon, chemical weapon and missiles.\n\n      11.04 Buyer shall not export GOODS directly or indirectly through any\nthird party to any of the countries against which any economic sanction is\nimposed under resolutions approved by the Security Council of the United\nNations, as long as such resolutions remain valid and effective and so far as\nGOODS remain the \"prohibited subject\" of which export to such countries is\nprohibited thereunder.\n\n      11.05 In the case of any breach of this Clause, Buyer shall be liable to\nSeller for any all direct and indirect damages incurred by Seller arising from\nsuch breach, and Seller may cancel all existing individual contracts hereunder\nand this Agreement immediately without any liability to Buyer. Further, Seller\nshall not be obliged to fulfill any individual contracts which are accepted by\nSeller but subsequently discovered to be an improper end-use, Military Purpose,\nand the like, or sale to improper end-user or intermediary.\n\n[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY\nWITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT\nTO THE OMITTED PORTIONS.\n\n\n                                      -10-\n\n\n      IN WITNESS WHEREOF, the parties hereto have caused this Agreement in three\n(3) original instruments, to be executed and delivered in the English language\nas of the date first above written, in a manner legally binding upon them, by\ntheir duly authorized officers, each of which shall be retained by Seller and\nBuyer respectively.\n\n\nSeller:  Matsushita Electric Industrial Co., Ltd.\n         Corporate Management Division for China\n\n\n         By: \/s\/ Yukio Shotoku\n            -------------------------------------\n            Name:  Yukio Shotoku\n            Title: Managing Director, Member of the Board\n\n\n         Matsushita Communication Industrial Co., Ltd.\n         Personal Communication Division\n\n\n         By: \/s\/ Osamu Waki\n            -------------------------------------\n            Name:  Osamu Waki\n            Title: Director\n\n\nBuyer:   UTStarcom Inc.\n\n\n         By: \/s\/ Hong Liang Lu\n            -------------------------------------\n            Name:  Hong Liang Lu\n            Title: President &amp; CEO\n\n[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY\nWITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT\nTO THE OMITTED PORTIONS.\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[9205],"corporate_contracts_industries":[9516],"corporate_contracts_types":[9613,9619],"class_list":["post-42877","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\/42877","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=42877"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42877"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42877"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42877"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}