{"id":42878,"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.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"supply-agreement-matsushita-electric-industrial-co-ltd","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/supply-agreement-matsushita-electric-industrial-co-ltd.html","title":{"rendered":"Supply Agreement &#8211; Matsushita Electric Industrial Co. Ltd., Matsushita Communication Industrial Co. Ltd. and UTStarcom Inc."},"content":{"rendered":"<pre>                                                                AGREEMENT NO.\n\n                                SUPPLY AGREEMENT\n\nTHIS AGREEMENT, made and entered into as of this 18th day of February, 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., \nacting through its Communication Systems Division, a Japanese corporation, \nhaving its principal office at 3-1 Tsunashima-Higashi 4-chome, Kohoku-ku, \nYokohama, Kanagawa 223-8639, Japan (hereinafter 'MCI') ('MEI' and 'MCI' are \ncollectively called 'Seller') and UTStarcom Inc., a Delaware corporation, \nhaving its principal office at 1275 Harbor Bay Parkway, Suite 100, Alameda, \nCalifornia 94502, U.S.A. (hereinafter 'Buyer').\n\n                                   WITNESSETH:\n\nWHEREAS, Buyer is desirous of purchasing from Seller certain Components of \nwireless local loop system (hereinafter defined) to have its affiliate in P. \nR. China assemble those Components into complete sets for sale thereof in P. \nR. China except for Hong Kong based on the technical assistance provided by \nMCI to Buyer pursuant to the Technical Assistance Agreement executed between \nMCI and Buyer on the 1st day of October, 1999 (hereinafter 'Technical \nAssistance Agreement'), and\n\nWHEREAS, Seller is willing to supply such components to Buyer under the terms \nand conditions herein contained,\n\nNOW, THEREFORE, in consideration of the mutual promises set forth herein and \nthe mutual covenants herein contained, both parties hereto agree as follows:\n\n                                    CLAUSE 1                                  \n                                  DEFINITIONS\n\n1.01     The term 'Products' means radio port controller (hereinafter 'RPC') \nand the radio port (hereinafter 'RP') with Buyer's brand name or no brand \nname (designated by Buyer) of which model numbers are described in SCHEDULE A \nattached hereto as an integral part hereof. The parties hereto also agree \nthat even during the term of this Agreement, models of the Products may be, \nin writing, added to and\/or removed from the SCHEDULE A upon mutual \nagreement. The diagrams of the Products shall be mutually discussed and \nagreed by the parties hereto in written instruments to be attached hereto as \nan integral part hereof, SCHEDULE B.\n\n1.02     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. \nThe specifications of the Components shall be separately agreed by the \nparties hereto in writing.\n\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 UNDER 17.C.F.R. SECTIONS 200.80(b)(4), 200.83 AND \n230.406.\n\n\n\n1.03     The term 'Buyer's Affiliate' means UTStarcom (Hangzhou) Telecom Co., \nLtd., a Chinese corporation, having its principal office at 3 Yile Industrial \nPark, Bldg 2\/3 129 Wen Yi Road, Hangzhou 310012, P. R. China, which purchases \nthe Components from Buyer and assembles the Components into complete sets for \nthe sale thereof in P. R. China except for Hong Kong under the terms and \nconditions hereof.\n\n                                    CLAUSE 2\n                               BUYER'S AFFILIATES\n\n2.01     Seller hereby agrees and acknowledges that Buyer's Affiliate \npurchases the Components through Buyer and assembles them into complete sets \nof Products for the resale in P. R. China except for Hong Kong, provided that \nBuyer shall have Buyer's Affiliate assume the same obligation of Buyer herein \nand Buyer shall obtain import license, type approval or any other necessary \ngovernmental or administrative license or approval and taking any procedures \nand steps necessary to comply with the laws and regulations of the P. R. \nChina and resale of the Components in the form of the Products shall be at \nthe responsibility and cost of Buyer.\n\n                                    CLAUSE 3\n                              SUPPLY OF COMPONENTS\n\n3.01     For the effective term of this Agreement and subject to the terms \nand conditions herein contained, Seller agrees to sell to Buyer and Buyer \nagrees to purchase from Seller on non-exclusive basis certain Components only \nfor the purpose of the assemble of the Components and the sale of the \nProducts by Buyer's Affiliate in P. R. China except for Hong Kong, solely in \nthe manner set forth in Clause 4 hereof.\n\n                                    CLAUSE 4\n                                MANNER OF SUPPLY\n\n4.01     Firm (non-cancelable) orders for the Components shall be placed by \nBuyer to Seller, in writing and in accordance with this Clause 4 hereof, [*]. \nSuch orders shall be placed to Seller in writing at least [*] prior to the \nshipment date requested therein. Seller will consider the purchase orders \nfrom Buyer, and shall have no obligation to accept such orders. In case of \nacceptance, Seller shall notify Buyer of the delivery date within [*] of \nSeller after the receipt of the relative firm order, and until such \nnotification is made, no order shall be binding on Seller.\n\n4.02     All deliveries of the Components shall be made on basis of [*], \nwhich shall be interpreted in accordance with the latest [*].\n\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 UNDER 17.C.F.R. SECTIONS 200.80(b)(4), 200.83 AND \n230.406.\n\n\n\n4.03     The parties hereto agree to establish the contracted minimum \nquantities as to each category of the Components to be assembled into \nProducts shall purchase from Seller for P. R. China except for Hong Kong \nmarket during each term of this Agreement as follows:\n\n\n\n         CATEGORY OF COMPONENTS     CONTRACTED MINIMUM QUANTITIES ON SHIPMENT BASE\n         ----------------------     ----------------------------------------------\n                                                             \n                                    YEAR 2000        YEAR 2001         YEAR 2002\n         for RPC                    [*]              [*]               [*]\n         for RP                     [*]              [*]               [*]\n\n\n4.04     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, \nto be made at least [*] prior to the scheduled shipment date of relative \nComponents, provided that any shipment of Components should be made by air. \nNotwithstanding the foregoing, in case Buyer desires and Seller agrees, the \npayment for the Components may be made by Buyer to Seller by means of \nirrevocable and confirmed letter of credit, negotiable on [*] after the date \nof Bill of Lading, to be opened in favor of MEI. Further, the parties hereto \nacknowledge that upon the prior consent of Seller, some transactions of the \nComponents may be made through a third party on condition that the payment \nterms of such transactions shall be made in advance of delivery by \ntelegraphic transfer with some restrictions as separately agreed in writing \nbetween MEI and the third party, and\/or Buyer and the third party.\n\n4.05     The prices of the Components shall be separately discussed and \nmutually agreed from time to time by the parties hereto based on the \nfollowing conditions: \n\n  (a) that prices of all items of the Components shall be quoted on basis of \n  [*]; \n  (b) that the prices of all items of the Components shall be quoted in the \n  currency of [*]; and \n  (c) that any price change, if any is agreed by the parties during its \n  validity, shall be applied only to such individual contracts as are made \n  after the date of such price change.\n\n4.06     The quantities of below mentioned item of Components for the \nProducts under [*] order shall be the same as or over the respective minimum \norder quantities set forth below. In the event Buyer requests to place a \nmonthly order for any item of the Components for the Products in the \nquantities less than such minimum quantities, Buyer and Seller will have a \ndiscussion as to whether Seller may accept such Buyer's request or not.\n\n\n\n         ITEM OF COMPONENTS                 MINIMUM ORDER QUANTITY\n         ------------------                 ----------------------\n                                        \n         for RPC                            [*]\n         for RP                             [*]\n\n\n                                    CLAUSE 5\n                         USE OF COMPONENTS AND TRADEMARK\n\n5.01     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 \nmutually agreed.\n\n5.02     Seller acknowledges that Buyer has appropriate interest in the \nBuyer's Mark and that no tight, interest, ownership or privilege of use of \nsuch Buyer'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 \nthe Components\/Products hereunder.\n\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 UNDER 17.C.F.R. SECTIONS 200.80(b)(4), 200.83 AND \n230.406.\n\n\n\n                                    CLAUSE 6\n                                    WARRANTY\n\n6.01     Buyer shall submit to Seller a [*] report detailing the quality \nproblem of the Components occurring in the market during the [*] the last \ndelivery of the Components hereunder. Further, Buyer shall submit to Seller \nsamples of the Components alleged to be defective upon request of Seller.\n\n6.02     Buyer shall be responsible for warranty\/servicing of the Products \nand any claims made by any third party against the Products once Buyer \ndistributes or has distributed the Products in the market.\n\n6.03     Seller agrees to provide, with no charge to Buyer, the quantities of \neach item of the Components equivalent to the percentages respectively set \nforth below of the quantities on relative individual purchase order accepted \nby Seller;\n\n\n\n         ITEM OF COMPONENTS                 PERCENTAGE\n         ------------------                 ----------\n                                       \n         for RPC                            [*]\n         for RP                             [*]\n\n\nIn the event that the malfunctions or defects in any item of the Components, \nwhich Seller admits to be attributable to the manufacturer thereof as defects \nin design, parts or workmanship of Components based on data on quality \nproblem occurring in market and Seller's analysis of samples of Components \nalleged to be defective, should occur in more than the respective percentages \nset forth above of total quantities of such item of the Component which have \nbeen delivered within last [*], Seller and Buyer will meet and discuss how to \ndeal with such situation, on condition that Buyer performs its obligations \nstipulated in Clause 6.01.\n\n6.04     In the event that any malfunctions or defects in a particular model \nof the Products, which Seller admits to be attributable to the manufacturer \nthereof such as defects in design, parts or workmanship of Products based on \ndata on quality problem of Products occurring in market and Seller's analysis \nof samples of Products alleged to be defective, should occur in identical \ncomponents or parts by reason of the same cause in more than [*] of the total \nnumber of such Components which have been delivered within latest [*], Seller \nshall remedy all such malfunctions or defects in excess of such [*] in the \nway selected by Seller, on condition that Buyer performs its obligations \nstipulated in Clause 6.01.\n\n6.05     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 \nComponents into the Products. Licenses or permissions if any necessary to \nassemble, sell or otherwise dispose of the complete sets of Products under \nany right owned or controlled by third parties shall be acquired by Buyer at \nits own risk and account.\n\n6.06     (a) Seller agrees to indemnify and hold harmless Buyer from and \nagainst any claim made by any third party that the Component supplied \nhereunder infringe the rights of such \n\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 UNDER 17.C.F.R. SECTIONS 200.80(b)(4), 200.83 AND \n230.406.\n\n\n\nthird party in respect to patent, design, copyright or any other intellectual \nproperty right in P. R. China except for Hong Kong (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, provided, that Buyer promptly \nnotifies Seller of the commencement of any action, suit or proceeding, or \nthreats thereof, and furnished to Seller all documents relating thereto, and \nfurther provided, that Seller is afforded the opportunity, in its sole and \nabsolute discretion, to determine the manner in which such action, suit or \nproceeding shall be handled or otherwise disposed of. Buyer shall give Seller \nthe cooperation Seller reasonably required, at Seller's sole cost and expense \nfor reasonable out-of-pocket expenses incurred by Buyer and paid to third \nparties (except for salaries for Buyer's employees and fees and expenses of \nany counsel retained by Buyer in the defense of such claim, suit, action or \nproceeding). Notwithstanding the foregoing, Buyer may be represented in any \nsuit by its own counsel at its own cost and expense; provided, however, that \nBuyer 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 \nsole cost and expense, take any of the following actions, in Seller's sole \nand absolute discretion: (i) procure for Buyer the right to continue the use \nand\/or sale of the Components as part of Products; or (ii) provide Components \nwhich do not infringe such Intellectual Property Right and upon Seller's \nfulfillment of (i) or (ii) above, Seller shall thereafter be relieved of any \nfurther obligation or liability to Buyer as the result of or in connection \nwith such infringement; provided, however, that if Seller elects either (i) \nor (ii) above, then to the extent that Seller is required to incur additional \ncosts, the prices for the affected Components shall be renegotiated in good \nfaith by the parties to take into such increased costs,\n\n         (c) Notwithstanding anything herein to the contrary, the provisions \nof this CLAUSE 6.06 shall not apply to (i) any designs, specifications, or \nmodifications supplied by Buyer or any items incorporated into the Components \nby Seller at Buyer's request (whether or not such items are manufactured by \nSeller or supplied by Buyer or third parties) or (ii) any combination or use \nof the Components by Buyer or its customer(s) with other equipment or \ndevices; but, rather, in such cases, Buyer shall indemnify, defend and hold \nharmless Seller from and against any and all liabilities, costs, expenses, \nlosses and damages of any nature, including counsel fees and expenses arising \nout of or relating to all claims that the same infringe on any Intellectual \nProperty Right of any third 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 \nComponents.\n\n6.07     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) \nshall be entirely for Buyer's own account and at Buyer's sole responsibility, \nand Seller (including Seller's affiliates and subsidiaries) shall not be \nresponsible to Buyer, Buyer's Affiliate and any third party. Buyer shall \nindemnify for and hold Seller (including Seller's affiliated companies and \nsubsidiaries) harmless from any losses, damages, costs and expenses arising \nout of or connection with business \n\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 UNDER 17.C.F.R. SECTIONS 200.80(b)(4), 200.83 AND \n230.406.\n\n\n\noperations as provided in this CLAUSE.\n\n6.08     EXCEPT FOR THE ABOVE EXPRESS LIMITED WARRANTY, SELLER MAKES AND \nBUYER RECEIVES NO WARRANTY ON THE COMPONENTS, EXPRESS OR IMPLIED. STATUTORY, \nOR IN ANY OTHER PROVISION OF THIS AGREEMENT OR COMMUNICATION WITH BUYER, AND \nSELLER SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OR \nFITNESS FOR A PARTICULAR PURPOSE, INCLUDING, WITHOUT LIMITATION, FITNESS FOR \nCOMBINATION WITH ANY INTERFACE DEVICES TO BUILD UP ANY SYSTEM.\n\n                                    CLAUSE 7\n                               SERVICE AFTER SALE\n\n7.01     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 \nconditions to be mutually agreed upon by the parties from time to time during \nthe retention period provided for in Schedule C attached hereto as an \nintegral part hereof.\n\n7.02     If the parties agree on a service training for the Products, Seller \nwill provide that in accordance with the agreed terms and conditions, \nprovided that Buyer shall reimburse Seller for [*].\n\n                                    CLAUSE 8\n                               TERM &amp; TERMINATION\n\n8.01     This Agreement shall become effective as of the date first above \nwritten (herein referred to as Effective Date), and thereafter shall remain \nin force and effect for a period of three (3) years, unless earlier \nterminated in accordance with any other provisions of this Agreement.\n\n         By mutual agreement at least ninety (90) days prior to expiration \nhereof, this Agreement may be extended for a period of one (1) year under the \nterms and conditions to be then mutually agreed to in writing.\n\n8.02     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 \nhave been in a breach and\/or default of the provisions of this Agreement, and \nsuch breach and\/or default shall not have been corrected within sixty (60) \ndays after receipt of notice specifying the nature of such breach and\/or \ndefault. \n\n8.03     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 \n              bankruptcy, receivership, winding up or other similar \n              proceeding against Buyer and\/or Buyer's Affiliate \n\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 UNDER 17.C.F.R. SECTIONS 200.80(b)(4), 200.83 AND \n230.406.\n\n\n\n              shall be made by Buyer, Buyer's Affiliate or any other person;\n\n2)            All of or, in the opinion of Seller, substantial part of the \n              assets of Buyer and\/or Buyer's Affiliate shall be seized or \n              attached in conjunction with any action against Buyer and\/or \n              Buyer's Affiliate by any third party;\n\n3)            A sale of all of or in the opinion of Seller substantially all \n              of the assets of Buyer is made, or this Agreement is assigned \n              by Buyer and\/or Buyer's Affiliate without the prior written \n              consent of Seller;\n\n4)            There occurs any such change in the capital ownership and\/or \n              management control of Buyer and\/or Buyer's Affiliate as, in the \n              opinion of Seller, may adversely affect the performance of this \n              Agreement and\/or the benefits or rights of Seller in this \n              Agreement;\n\n5)            There occurs any difficulties, in Seller's opinion, to perform \n              the obligation under this Agreement due to any of significant \n              changes of the political, economic or taxation policy by the \n              governmental or quasi-governmental organization or agencies in \n              the US or P. R. China;\n\n6)            the Technical Assistance Agreement is, in any reason, \n              terminated;\n\n7)            Seller judges that the quality of the Products assembled by \n              Buyer's Affiliate hereunder is found to be insufficient and \n              such insufficiency seems not to be corrected within a \n              reasonable period of time; and\n\n8)            An import license of the Components into the US and\/or an \n              import license of the Components from Buyer to Buyer's \n              Affiliate is not obtained from the competent authority of the \n              Government of the US or P. R. China, (to the extent that such \n              license is required by law), within one hundred and eighty \n              (180) days from the Effective Date hereof.\n\n8.0      Termination or expiration of this Agreement shall not affect the \nright of Seller or Buyer which shall have accrued hereunder including, \nwithout limitation, the Seller's right to receive payment of the Components \nand the Buyer's right to receive the Components ordered but not delivered \nyet. However, if this Agreement is terminated due to any breach of this \nAgreement by either party, the other party shall have the right to cancel any \nfirm order accepted by Seller without any liability to the breaching party.\n\n8.05     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 9\n                               GENERAL PROVISIONS\n\n9.01     The supervision of the installation of the Products may be made by \nSeller upon a Buyer's reasonable request and the Seller's acceptance thereof, \nprovided that Buyer shall reimburse Seller for [*].\n\n9.02     EXCEPT FOR THE EXPRESS LIMITED WARRANTY IN CLAUSE 6 HEREOF AND THE \nEXPRESS WARRANTY IN CLAUSE 10.05 HEREOF, EACH PARTY'S LIABILITY FOR ANY LOSS \nOR DAMAGE ARISING OUT OF OR RESULTING FROM THESE TERMS AND CONDITIONS OR FROM \nITS PERFORMANCE OR \n\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 UNDER 17.C.F.R. SECTIONS 200.80(b)(4), 200.83 AND \n230.406.\n\n\n\nBREACH, OR IN CONNECTION WITH THE COMPONENTS PURCHASED HEREUNDER SHALL IN NO \nCASE EXCEED THE PURCHASE PRICE FOR THE SPECIFIC COMPONENT WHICH GIVE RISE TO \nTHE CLAIM. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, \nSPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (WHETHER FORESEEABLE OR NOT), \nNOR FOR DAMAGES FOR LOSS OF BUSINESS , LOSS OF PROFITS, LOSS OF CONTRACTS, OR \nANTICIPATED SAVINGS (WHETHER FORESEEABLE OR NOT), IN CONTRACT, TORT, \n(INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, PRODUCT LIABILITY OR \nOTHERWISE, ARISING FROM THIS AGREEMENT OR INDIVIDUAL CONTRACTS HEREUNDER, \nEVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.\n\n9.03     Neither this Agreement nor any rights or obligations hereunder shall \nbe assignable or otherwise transferable by either party hereto, voluntarily \nor by operation of law or otherwise, without the prior written consent of the \nother party, and any assignment or transfer without such consent shall be \nnull and void.\n\n9.04     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 \npublic enemy 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, \nslowdowns, lockouts or labor stoppage or disputes of any kind; (vi) freight \nembargo or interruption of transportation; (vii) unusually severe weather; \n(viii) delays of a supplier of Seller due to any the above causes or events; \nand the time for performance by such party shall be extended by the period of \nany such delay. Notwithstanding the foregoing, should any delay resulting \nfrom such an event of Force Majeure set forth above exceed one-hundred-eighty \n(180) days, either party may terminate this Agreement or the portion of this \nAgreement so delayed.\n\n9.05     Any confidential information owned by Seller prior to this Agreement \nor developed by Seller (or its parent, subsidiaries affiliates) during the \nterm hereof and disclosed to Buyer in connection with subject matter hereof \nand the contents and existence of this Agreement shall not be disclosed by \nBuyer to any third party.\n\n9.06     This Agreement shall be governed and construed in accordance with \nthe laws of Japan without reference to its conflict of law principles.\n\n9.07     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 \nhereto, no such solution can be reached within sixty (60) days after \noccurrence of such disputes, controversies or differences, then, they shall \nbe finally settled (without being submitted to any court), except as \notherwise expressly provided herein. In case Seller initiates the \narbitration, the arbitration shall tale place in San Francisco, California, \nU. S. A., in accordance with the arbitration rules of American Arbitration \nAssociation. In case Buyer \n\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 UNDER 17.C.F.R. SECTIONS 200.80(b)(4), 200.83 AND \n230.406.\n\n\n\ninitiates the arbitration, the arbitration shall tale place in Tokyo, Japan \nin accordance with the arbitration rules of Japan Commercial Arbitration \nAssociation. Judgment upon the award rendered may be entered in any court \nhaving jurisdiction or application may be made to such court for a judicial \nacceptance of the award and an order of enforcement, as the case may be.\n\n9.08     The CLAUSES 2.01, 3.01, 5.02, 6.04, 6.05, 6.06, 6.07, 7.01, 8.03, \n8.05, 9.02, 9.05, 9.06 9.07, 9.08 and 10 hereof shall survive the expiration \nor the termination of this Agreement.\n\n9.08     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 \notherwise, except by an instrument in writing signed by a duly authorized \nofficer or representative of the parties hereto.\n\n                                    CLAUSE 10\n                                 EXPORT CONTROL\n\n10.01    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 \nlaws. Buyer shall, upon Seller's request, furnish Seller with all information \nand documentation necessary for Seller in obtaining and complying with the \nrequired licenses.\n\n10.02    In the event that any and all the Products including replacement \nparts thereto to be purchased by Buyer from Seller and any technical \ndocuments or technical services to be supplied by Seller to Buyer relating \nthereto (hereinafter collectively called 'GOODS') are included in and remain \nthe 'restricted subject' whose export is controlled under the Foreign \nExchange and Foreign Trade Law and its relevant governmental\/administrative \nregulations of Japan, Buyer shall provide Seller with the 'End-Use Statement' \nsupplied by Seller and signed by Buyer, which is required for Seller to \nobtain approvals of the Japanese Government, and Buyer shall strictly comply \nwith any and all provisions set forth therein. Specifically, Buyer shall not \nchange the end-use of GOODS set forth therein nor transfer the GOODS to any \ncountry other than the countries set forth therein. In the event that Buyer \nis not the end-user of GOODS, Buyer shall, upon request of Seller, make \nBuyer's customer(s) sign such End-Use Statement and make such customer(s) \nunderstand and comply with any and all the provisions therein. Buyer further \nagrees, upon request of Seller, to render the assistance necessary for Seller \nto check and verify the compliance with provisions of End-Use Statement by \nBuyer or its customer(s).\n\n10.03    During and after the term of this Agreement, Buyer shall not sell, \nlease or otherwise dispose of GOODS, directly or indirectly, to any customer \nwho makes 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 \n\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 UNDER 17.C.F.R. SECTIONS 200.80(b)(4), 200.83 AND \n230.406.\n\n\n\n  including without limitation nuclear weapon, biological weapon, chemical \n  weapon and missiles.\n\n  10.04    Buyer shall not export GOODS directly or indirectly through any \n  third party to any of the countries against which any economic sanction is \n  imposed under resolutions approved by the Security Council of the United \n  Nations, as long as such resolutions remain valid and effective and so far \n  as GOODS remain the 'prohibited subject' of which export to such countries \n  is prohibited thereunder.\n\n  10.05    In the case of any breach of this Clause, Buyer shall be liable to \n  Seller for any and all direct and indirect damages incurred by Seller \n  arising from such breach, and Seller may cancel all existing individual \n  contracts hereunder and this Agreement immediately without any liability to \n  Buyer. Further, Seller shall not obliged to fulfill any individual \n  contracts which are accepted by Seller but subsequently discovered to be an \n  improper end-use, Military Purpose, and the like, or sale to improper \n  end-user or intermediary.\n\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement in three \n(3) original instruments, to be executed and delivered in the English \nlanguage as of the date first above written, in a manner legally binding upon \nthem, by their duly authorized officers, each of which shall be retained by \nSeller and Buyer respectively.\n\n\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 UNDER 17.C.F.R. SECTIONS 200.80(b)(4), 200.83 AND \n230.406.\n\n\n\n\nSeller:           MATSUSHITA ELECTRIC INDUSTRIAL CO., LTD.\n                  CORPORATE MANAGEMENT DIVISION FOR CHINA\n\n\n\n                  By:                                         \n                  Name:             Yukio Shotoku\n                  Title:   Managing Director, Member of the Board\n\n\n                  MATSUSHITA COMMUNICATION INDUSTRIAL CO., LTD.\n                  COMMUNICATION SYSTEMS DIVISION\n\n\n\n                  By:                                         \n                  Name:             Yasuo Katsura\n                  Title:   Director, Member of the Board\n\n\n\nBuyer:            UTSTARCOM INC.\n\n\n\n                  By:                                         \n                  Name:             Hong Liang Lu             \n                  Title:   President &amp; CEO\n\n\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-42878","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\/42878","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=42878"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42878"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42878"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42878"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}