{"id":42887,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/technical-assistance-agreement-matsushita-communication3.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"technical-assistance-agreement-matsushita-communication3","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/technical-assistance-agreement-matsushita-communication3.html","title":{"rendered":"Technical Assistance Agreement – Matsushita Communication Industrial Co. and UTStarcom Inc."},"content":{"rendered":"
                         TECHNICAL ASSISTANCE AGREEMENT\n\nAGREEMENT made and entered into, by and between\n\nMatsushita Communication Industrial Co., Ltd., Communication Systems Division, a\nJapanese corporation, having its principal offices at 3-1 Tsunashima-Higashi\n4-chome, Kohoku-ku, Yokohama 223-8639, Japan (hereinafter called \"Licensor\"),\nand UTStarcom Inc., a Delaware corporation, having its principal offices at 1275\nHarbor Bay Parkway, Suit 100, Alameda, California 94502, U.S.A. (hereinafter\ncalled \"Licensee\").\n\n                                   WITNESSETH:\n\n\nRECITALS:\n\n\nLicensor and Licensee have been the parties to the technical assistance\nagreement effective on October 1, 1999 which is subsequently modified, under\nwhich Licensee is receiving from Licensor, technical assistance and information\nfor, and know-how in connection with, the manufacture and assembly in [*] of a\ncertain radio port and radio port controller.\n\nLicensee is desirous of receiving such a technical assistance in further details\nand to a higher level.\n\nLicensor is willing and ready to render such technical assistance, information\nand know-how to Licensee, all upon and subject to the terms and conditions\nhereinafter set forth,\n\nNOW, THEREFORE, in consideration of the recitals and the mutual promises herein\ncontained, the parties hereto agree as follows:\n\nARTICLE 1. DEFINITIONS\n\n1.01  The term \"Item(s)\" means,\n1)[*], and\n2)[*],\nAny other items may be added to the aforesaid items or any of the aforesaid\nitems may be excluded from the scope of Items by mutual written agreement or the\nparties hereto and subject to the approval of the Japanese Government, if then\nrequired. \n\n1.02  The term \"Products\" means the product models and the subassemblies \ntherefor within the scope of Items, that are designed and\/or manufactured by \nLicensor during the term of this Agreement and are selected by a written \nagreement of the parties hereto. The initial Products are set forth in \nExhibit A attached hereto and made a part hereof. Exhibit A may be amended by \na written agreement of the parties from time to time during the term of this \nAgreement and subject to the approval of the Japanese Government, if then \nrequired.\n\n1.03  The term \"Effective Date\" means the date on which both parties signed this\nAgreement (if different, the later date of signature), subject to the approval\nof the Japanese Government, if necessary.\n\n1.04  The term \"Components\" means parts, components, materials, subassemblies,\nprinted circuit boards, control cards, interface cards, accessories, packing\nmaterials, and printed materials used in the Products.\n\n1.05  The term \"Production Equipment\" means machine, tools, jigs, molds, dies,\nand instruments, required by Licensee for manufacture (including assembly,\nadjustment, programming, and tests) and inspection of the Products. \n\n\n\n\n\n1.06  The term \"Production\" means procurement of Production Equipment,\nComponents, assembly, adjustment, in-process test, quality control inspection\nand repair.\n\n1.07  The term \"Calculation Period\" means the periods from [*] to [*], from [*]\nto [*], from [*] to [*], and from [*] to [*] of each year, and the period from\nthe later coming [*] to the date of termination or expiration of this Agreement.\n\n1.08  The term \"Affiliates\" means companies or other entities controlling,\ncontrolled by, or under the common control with, either party, and the term\n\"Subsidiaries\" means, among the Affiliates, companies or other entities\ncontrolled by either party. As used in this Article, the term \"control\" means\nthe direct or indirect ownership or control of the majority of the outstanding\nshares or the ownership representing the power to direct the business of the\ncompanies or entities, as long as such ownership or control exists.\n\nARTICLE 2. TECHNICAL ASSISTANCE\n\n2.01  Technical Information and Advice: \n2.01A  During the term of this Agreement, Licensor shall furnish Licensee with a\nset of tangible technical information for use by Licensee in the manufacture\nand\/or assembly of the Products to the extent freely disposable by Licensor\nwithout any obligation to any third party, necessary for the Production of the\nProducts by Licensee. Such information (hereinafter called \"Technical\nInformation\") shall be as set forth in Exhibit B attached hereto and made a part\nof this Agreement.\n\n2.01B  From time to time during the term of this Agreement, whenever a new\nProduct is selected pursuant to Article 1.02. hereof, Licensor will furnish\nLicensee with the technical information therefor, to the extent provided for in\nArticle 2.01A hereof and required in addition to what has been previously\nsupplied. Such technical information shall also be the Technical Information.\n\n2.01C  From time to time during the term of this Agreement, at the reasonable\nrequest of Licensee in writing, Licensor may furnish Licensee with advice and\ninformation which is incidental or supplemental to the Technical Information\nfurnished pursuant to Articles 2.01A and 2.01B hereof and which may be properly\ndisclosed by Licensor. \n\n2.01D  All Technical Information furnished hereunder shall be in the English\nlanguage except for software and hardware design document in the Japanese\nlanguage, and the measurements and specifications used therein shall be in the\nmetric system.\n\n2.02  Technical Service: \n2.02A  From time to time during the term of this Agreement, at the reasonable\nrequest of Licensee in writing, Licensor may permit officers and\/or employees of\nLicensee to visit Licensor's facilities at which it manufactures or assembles\nthe Products, for such periods of time as mutually agreed, to train such\npersonnel of Licensee in the process of manufacturing and assembling the\nProducts. \n\n2.02B  From time to time during the term of this Agreement, at the reasonable\nrequest of Licensee in writing, Licensor may send one or more of its engineers\nand\/or technicians to Licensee's or Sub-Licensee's facilities at which it\nmanufactures and\/or assembles the Products, for such periods of time as mutually\nagreed, to provide advisory and instructive technical service to Licensee\nregarding the manufacture and\/or assembly of the Products hereunder. \n\n2.02C  Details of the terms and conditions applicable to the technical services\nto be provided to Licensee as set forth in Articles 2.02A and 2.02B that are to\nbe rendered by Licensor's engineers or technicians visiting Licensee's factory\nas herein provided shall be confirmed in writing between both parties hereto to\nthe extent practicable prior to any such visit. \n\n2.02D  From time to time during the term of this Agreement, at the reasonable\nrequest of Licensee, Licensor may inspect or test samples of the Products\nproduced by Licensee or the Components obtained by Licensee pursuant to the\nprovisions of Article 4.02 hereof, and Licensor may inform Licensee of the\nresults of such inspection or the test with any pertinent comments, if any, that\nLicensor may have to make. Such samples shall be given to Licensor [*] and at\nthe [*]. \n\n\n                                      -2-\n\n\n\n\n\nLicensee shall also reimburse Licensor, [*], for the expenses of [*] involved\nafter receipt by Licensee of Licensor's invoice therefor.\n\n2.03A  All costs and expenses for the technical information, advice and services\nto be provided to Licensee as set forth in Articles 2.01 and 2.02 hereof\n(hereinafter called \"Technical Services\"), including those for technical\ninformation, advice, technical service, accommodation, transportation to and\nfrom Japan by air coach, meals and allowances, in respect of Licensor's\nengineers and\/or technicians and Licensee's officers and\/or employees as the\ncase may be, shall be paid, or if paid by [*], shall be reimbursed, by [*] to\n[*] in [*] by means of telegraphic transfer within [*] after [*] presentation to\n[*] of bills or invoices for any such costs or expenses.\n\n2.03B  The schedule of the Technical Services at the initial stage and the\npayment therefor shall be set forth in Exhibit C. \n\n2.03C  Anything to the contrary herein notwithstanding, all such personnel of\nLicensor shall be deemed at all times to be employees of Licensor, subject to\nLicensor's ultimate direction and control, and shall not be deemed to be\nemployees of Licensee.\n\n2.03D  Governmental Approval: Any of the Technical Assistance (as defined in\nArticle 3.01A hereof) herein contemplated shall be made available to Licensee\nsubject to a required approval by the competent authority of the Japanese\nGovernment under the Foreign Exchange and Foreign Trade Law of Japan, and\/or the\nJapanese governmental administration guidance if and to the extent from time to\ntime so required. It is further agreed by the parties hereto that any addition\nor selection of Item or Product pursuant hereto and any renewal of this\nAgreement shall also be subject to a required approval of the Japanese\nGovernment under the aforesaid law and\/or governmental guidance, if and to the\nextent then required. \n\nARTICLE 3. LICENSES\n\n3.01A  During the term of this Agreement, Licensor hereby grants to Licensee [*]\nlicense, [*], to use the Technical Information and advice and information\nrelated thereto and the Technical Services and such other technical assistance\nas may be furnished by Licensor hereunder (all of which are hereinafter\ncollectively called \"Technical Assistance\") in order to manufacture and\/or\nassemble the Products in [*] for sale, use, lease or other disposition of the\nsame in [*]. \n\n3.01B  To the extent any patent owned by Licensor is embodied within the\nTechnical Assistance and is applicable to manufacturing or selling the Products,\nLicensor agrees and hereby grants to Licensee during the term hereof, a [*]\nlicense under such patent, [*], to the extent necessary to exercise the license\ngranted under Article 3.01A. \n\n3.01C  [*], Licensee [*] grant a sub-license of the license granted to it under\nArticles 3.01A and 3.01B to UTStarcom (Hangzhou) Telecom Co., Ltd. at Yile\nIndustrial Park, Building 3, 129 WenYi Road, Hangzhou 310012, P.R. China\n(hereinafter called \"Sub-Licensee\"), as long as the Sub-Licensee remains a\nSubsidiary of the Licensee and provided that Licensee obtains at its risk and\nresponsibility any permits and licenses necessary for such sub-license\nincluding, but not limited to, those by the governments of U.S.A. and P.R.\nChina, that the Licensee shall have Sub-Licensee observe and comply with the\nterms and conditions hereof, and that Licensee shall be responsible for the\nperformance of the Sub-Licensee. In the event there is a major change in the\nmanagement or ownership of the Sub-Licensee, the Licensee shall inform the\nLicensor thereof without delay. \n\n3.01D  In the event the Licensee or the Sub-Licensee invents, creates or\nperceives any improvement, enhancement, addition or other modification on the\nProducts and\/or Technical Assistance during the term of this Agreement, the\nLicensee and the Sub-Licensee hereby grants to Licensor and its Subsidiaries a\n[*] license, [*], to use such improvement, enhancement and modification in order\nto manufacture\/assemble the Item or sale, use, lease or other disposition of the\nsame. \n\n3.01E  In the event any improvement, enhancement, addition or other modification\non the Products and\/or Technical Assistance is invented, created or perceived\njointly by (i) the Licensor and (ii) the Licensee and\/or Sub-Licensee during the\nterm of this Agreement, such improvement, enhancement, addition or other\nmodification shall be [*] owned by [*]. \n\n\n                                      -3-\n\n\n\n\n\nThe application for protection and its costs for such [*] owned improvement,\nenhancement, addition or other modification (\"[*] Property\") shall be discussed\nseparately by the parties. Each party and its Affiliates may use such [*]\nProperty for any purpose without the consent of the other party and without any\ncompensation or accounting to the other party, provided that granting a license,\nsale, transfer or other disposition of the [*] Property to any third party\n(excluding respective Affiliates) requires a prior written consent of the other\nparty and the income resulting from such license, sale, transfer or other\ndisposition shall be shared [*] between the parties hereto. \n\nARTICLE 4. PRODUCTION EQUIPMENT & COMPONENTS\n\n4.01  Production Equipment: \nIn the event that Licensee purchases any of the Production Equipment \nexcluding the molds and dies from any third party, Licensee agrees that in \norder for Licensor to properly provide Technical Assistance to Licensee \npursuant to this Agreement, Licensee shall purchase such Production Equipment \nonly in accordance with the specifications therefor that are given to \nLicensee by Licensor. As for the molds and dies, the Licensor provides the \nspecification of the Components to be manufactured with such molds and dies, \nand the Licensee shall purchase the molds and dies at its sole discretion and \nresponsibility. \n\n4.02  Components: \nIn the event Licensee purchases any Components from any third party, Licensee \nagrees that in order for Licensor to properly provide Technical Assistance to \nLicensee pursuant to this Agreement, any such Components that Licensee \npurchases from any third party shall meet and maintain the specifications and \nquality standards set therefor by Licensor. \n\nARTICLE 5. REMUNERATION\n\n5.01  The parties hereto agree to establish the annual contracted minimum\nquantities as to the each of the Products which Licensee shall manufactures in\n[*] and sells in [*] during each annual term of this Agreement. Such contracted\nminimum quantities shall be separately confirmed in writing. \n\n5.02  In consideration of the Technical Assistance to be provided by Licensor to\nLicensee and the licenses granted to Licensee pursuant to this Agreement,\nLicensee agrees to pay to Licensor a technical assistance fee set forth in\nExhibit D. \n\n5.03  Licensee agrees to provide Licensor with written reports, in such a \nform as may be reasonably indicated and requested by Licensor, within [*] \nafter the end of each Calculation Period beginning with the Calculation \nPeriod commencing on the Effective Date, setting forth the number of Products \nshipped from Licensee and Sub-Licensee during the immediately preceding \nCalculation Period, and also showing computation of the technical assistance \nfee payable pursuant to the provisions of this Article and compensation of \nthe tax described in Article 5.05 hereof. The report following expiration or \ntermination of this Agreement shall include all of the Products shipped from \nLicensee and Sub-Licensee prior to the expiration or termination hereof and \nnot previously reported to Licensor. Within [*] after the end of each \nCalculation Period, Licensee shall pay to Licensor the technical assistance \nfee for the Products included in such report in [*], by telegraphic transfer \nto Licensor's account at such bank as shall be designated by Licensor. The \nconversion to [*] from [*] shall be made based on the TTB rate quoted by the \nCitibank in California, U.S.A. on the date of relative payment.\n\n5.04  Licensee agrees to keep records showing the total number of the Products\nshipped from Licensee and Sub-Licensee, and showing other related information in\nsufficient detail to enable the technical assistance fee payable hereunder by\nLicensee to be determined. Licensee further agrees, if Licensor so requests, to\npermit its books and records to be examined by Licensor from time to time during\nthe term hereof and for [*] after termination or expiration hereof and to take\nextracts therefrom, to verify the technical assistance fee due and payable\nhereunder. Such examination shall be made at the expense of [*] its duly\nauthorized representative(s) or agent(s) appointed by Licensor. \n\n5.05  The technical assistance fee payable to Licensor by Licensee hereunder is\nnet of the withholding tax or the tax at the source, and, if there is any such\ntax, the amount of the technical assistance fee is adjusted to compensate for\nsuch tax. Licensee shall promptly after payment of such tax furnish Licensor\nwith a copy or the pertinent receipt of such tax issued by the tax agency or\nproof of payment thereof. \n\n\n                                      -4-\n\n\n\n\n\n5.06  If, as of the expiration or termination of this Agreement, there are any:\n(1) Products then completed by Licensee but not yet sold or otherwise disposed\nof; or (2) Products then in the process or manufacture or assembly; the\ntechnical assistance fee shall be paid thereon, as set forth above, by Licensee\nto Licensor by telegraphic transfer for all of such products within [*] after\nsuch expiration or termination hereof. Licensee agrees to provide Licensor with\nwritten reports in respect of any Products provided for in this Article 5.06 in\nlike form and manner set forth in Article 5.03 hereof, within [*], after the\nexpiration or termination hereof, setting forth the number of each such Product\nthen completed or then in process as of the date of expiration or termination\nhereof. \n\nARTICLE 6. MAINTENANCE OF QUALITY \n\n6.01A  Licensee agrees that in order for Licensor to properly provide the\nTechnical Assistance to Licensee pursuant to this Agreement, Licensee shall\nstrictly comply, in the Production of the Products hereunder, with all\nspecifications and quality standards that are reasonably established by Licensor\nfor Production of the Products. Licensee agrees to submit to Licensor, as\nLicensor reasonably requests, Licensee's quality control and inspection data in\nsuch form as may be reasonably established by Licensor for its inspection.\nLicensee shall keep, during and for [*] after the terms of this Agreement,\ncopies of such quality control and inspection data so furnished to Licensor.\nLicensee agrees, upon reasonable request of Licensor, to send to Licensor\nsamples of Products or the Components obtained by Licensee or its Sub-Licensee\nin reasonable quantities. Licensor may give Licensee, as promptly as possible,\nsuch Technical Assistance and such pertinent advice and\/or instructions in\nwritten form in English with respect to the Products and\/or Components, as shall\nbe necessary in the reasonable opinion of Licensor after inspecting and\/or\ntesting such samples and\/or after reviewing the reports of quality control,\ninspection and\/or manufacturing data. \n\n6.01B  If, at any time during the term of this Agreement, Licensee and Licensor\ndeem it necessary, Licensor may send to Licensee, Licensor's engineer(s) and\/or\ntechnician(s) for the purpose of checking and\/or inspecting the quality and\/or\nperformance of the Products and\/or Components manufactured or assembled by,\nand\/or the performance of the Production Equipment and\/or the quality of the\nComponents purchased by, Licensee or the Sub-Licensee, and in any such event,\nthe provisions of Article 2.03 hereof shall be applicable to such sending of\nLicensor's engineer(s) and\/or technician(s). \n\n6.01C  Licensee hereby agrees to inform Licensor forthwith in writing of any\ncurrent or future standards, legal or otherwise, applicable to the Products, if\nany, in [*]. Licensor agrees to provide Licensee with such information and\nassistance as may be reasonably required by Licensee in obtaining any approvals,\nratings or listings for the Products. \n\n6.02  Manufacture and assembly of the Products and the sale or other disposition\nthereof by Licensee or the Sub-Licensee, as well as any guarantee thereon to\nLicensee's customers of the Products including, without limitation,\nresponsibility for product liability, obtaining approval for the Products\npursuant to any standard, legal or otherwise, applicable to the Products, shall\nbe at Licensee's sole cost and expense and at Licensee's sole risk and\nresponsibility, and Licensor shall not be responsible therefor to Licensee, the\nSub-Licensee or any third party. Licensee shall indemnify Licensor for and hold\nLicensor harmless from any losses, liabilities, damages, claims, actions, suits,\nproceedings, costs and expenses (including fees and expenses of counsel) arising\nout of or in connection with the use by Licensee of any Technical Assistance,\nProduction Equipment, Components, Technical Information, advice or service\nfurnished by Licensor hereunder and the manufacture or assembly and sale or\nother disposition of the Products or Components hereunder, including, without\nlimitation, claims for product liability (excepting those claims relating to\ndefects in design of the Products as delivered Licensor) and obtaining approval\nfor the Products pursuant to any standards, legal or otherwise, applicable to\nthe Products or for infringement of any patents, trademarks or other proprietary\nrights or any third party. \n\n6.03  The sole obligation of Licensor with respect to the Technical Assistance,\nadvice or service to be provided to Licensee under this Agreement shall be to\nfurnish the same to Licensee as provided for in this Agreement. Licensor shall\nhave no responsibility for the ability of Licensee or the Sub-Licensee to use\nsuch Technical Assistance, Technical Information, advice or service or for the\nProducts manufactured or assembled by Licensee or the Sub-Licensee thereunder.\n\n\n                                      -5-\n\n\n\nARTICLE 7. TRADEMARK \n\n7.01  Licensee shall affix Licensee's brand name and\/or its trade name \ndesignated by Licensee on the Products. Licensee shall not use any trademark, \nmodel numbers or tradename used by the Licensor or any mark which shall be, \nin the Licensor's opinion, similar to or shall resemble such Licensor's \ntrademarks, model numbers or tradename, on the Products or with respect to \nthe sale, use, lease or other disposition thereof (including relevant \nprintings and advertising materials).\n\nARTICLE 8. GENERAL PROVISIONS \n\n8.01  Secrecy and Unauthorized Use of Technical Information: \n8.01A  Except as specifically set forth in Article 8.01 hereof or otherwise\napproved by Licensor in a separate writing, Licensee agrees to treat and keep\nsecret and confidential and not to disclose, except as herein provided pursuant\nto Article 8.01B below, to any person, Licensor's technical know-how which may\nbe disclosed by Licensor's engineers or technicians and\/or acquired by\nLicensee's officers or employees and agents, as well as all Technical\nInformation, advice and service furnished or disclosed by Licensor to Licensee\nhereunder, except to the extent Licensee may be required to disclose the same to\nobtain any approvals for the Products as provided for in Article 6 above or as\nmay otherwise be required by law. Licensee further shall not use any Technical\nInformation, advice or service furnished hereunder for any purpose other than\nthat of this Agreement and shall not file or cause to be filed application for\nany patent or similar right in any countries based on or with respect to the\nTechnical Information, advice or service furnished hereunder. \n\n8.01B  In the event Licensee shall disclose any of the Technical Information to\nthe Sub-Licensee, except as provided in Article 8.01A hereof, Licensee shall\nobtain from the Sub-Licensee a confidential information agreement or arrangement\nas shall be mutually satisfactory to Licensor and Licensee. \n\n8.01C  Licensee shall take all necessary actions to comply and to compel\ncompliance with the provisions of Article 8.01A hereof and with the provisions\nof any confidential information agreement or arrangement entered into pursuant\nto the provisions of Article 8.01B hereof. \n\n8.01D  The provisions of Article 8.01 hereof shall survive the expiration or\ntermination of this Agreement, unless and until any Technical Information and\nadvice or service furnished in connection therewith, as referred to in Article\n8.01A above, shall have become part of the public domain or until [*] after the\nexpiration or termination of this Agreement. \n\n8.02  No Warranty: \n8.02A  Nothing herein contained shall be construed as the making or giving by\nLicensor of any warranty or representation that any Products manufactured or\nassembled by Licensee or the Sub-Licensee hereunder or that any process or\nmethod for manufacturing or assembling the Products by Licensee or the\nSub-Licensee or that any Components or Production Equipment purchased by\nLicensee or the Sub-Licensee according to the specifications supplied from\nLicensor shall not infringe upon any proprietary property rights, including but\nnot limited to, patent rights and trademark rights owned or otherwise controlled\nby a third party. Any license or permission, if any, that is required by\nLicensee or the Sub-Licensee from any third party, to manufacture or assemble or\nsell or otherwise dispose of the Products hereunder, shall be acquired by\nLicensee [*]. \n\n8.02B  During and after the term hereof, nothing herein contained shall be\nconstrued as the making or giving by Licensor of any warranty or representation\nthat any Products meet the current or future standards, legal or otherwise,\napplicable to the Products, if any, in the [*]. \n\n8.03  Force Majeure: \nNeither party shall be liable for delay or failure in performance arising from\nany of the following: (a) acts of God, or public enemy, or war (declared or\nundeclared); (b) acts of governmental or quasi-governmental authorities or any\npolitical subdivision thereof, or of any department or agency thereof, or\nregulations or restrictions imposed by law or by court action; (c) acts of\npersons engaged in subversive activities or sabotage; (d) fires, floods,\nexplosions, or other catastrophes; (e) epidemics or quarantine restrictions; (f)\nstrikes, slowdowns, lockouts, or labor stoppages, or disputes of \n\n\n                                      -6-\n\n\n\n\n\nany kind; (g) freight embargoes or interruption of transportation; (h) any other\ncauses, similar or dissimilar, beyond the control of the affected party, and the\ntime for performance by such party shall be extended by a period of any such\ndelay. \n\n8.04  Breach or Default and Waiver: \nEither party hereto has the right to terminate this Agreement by giving a \nwritten notice to the other party to that effect in the event such other \nparty shall have been in a material breach and\/or default of this Agreement \nand such material breach and\/or default shall not have been corrected within \n[*] after receipt of notice specifying the nature of such breach and\/or \ndefault. The termination of this Agreement shall be without any prejudice to \nthe rights which such terminating party may have under this Agreement. No \nfailure or delay on the part of any party to exercise its right of \ntermination of this Agreement for any one or more breaches and\/or defaults \nshall be construed to prejudice its rights of termination for any other or \nsubsequent breaches and\/or defaults. \n\n8.05  Disputes: \nAny disagreement in connection herewith shall be finally settled by \narbitration. If Licensor initiates the arbitration, the arbitration shall be \nheld in San Francisco, California, the U.S.A. in accordance with the \nInternational Arbitration Rules of American Arbitration Association. If \nLicensee initiates the arbitration, the arbitration shall be held in Tokyo, \nJapan in accordance with the Commercial Arbitration Rules of Japan Commercial \nArbitration Association. \n\n8.06  Applicable Law: \nThis Agreement shall be interpreted and governed in accordance with the laws \nof Japan, without reference to its conflicts of laws principles. \n\n8.07  Assignment: \nNeither this Agreement or any rights and obligations hereunder shall be \nassignable or otherwise transferable by either party, voluntarily or by \noperation or law or otherwise, without the prior written consent of the other \nparty hereto, and any assignment or transfer without such consent of the \nother party shall be null and void; provided, however, that all of the terms \nof this Agreement shall inure to the benefit of and shall be binding upon \neach of the parties hereto and their respective successors and assigns as may \nbe expressly consented to in writing by the other party. \n\n8.08  Entire Agreement and Amendment: \nThis Agreement and the exhibits thereto, contains the entire and only \nagreement between the parties hereto with respect to the subject matter \nherein contained and, this Agreement supersedes and cancels all previous \nagreements, negotiations, commitments and writings with respect to the \nsubject matter hereof. This Agreement may not be amended, modified, \nsuperseded or canceled, nor may any of the terms, provisions or conditions \nhereof be waived, except by a written instrument duly executed by an \nauthorized officer of each of the parties hereto. No waiver by either party \nof any condition of this Agreement, in any one instance, shall be deemed to \nbe or construed as a further or continuing waiver of any such condition. \n\n8.09  Obligations After Expiration or Termination:\nExcept as to Products completed and\/or in process as referred to in Article \n5.06 hereof, upon and after the expiration or termination of this Agreement, \nLicensee shall not engage, nor contract with third parties to engage, in the \nmanufacture or assembly or sale or other disposition of the Products, and \nLicensee shall, upon and after the expiration or termination of this \nAgreement, neither use nor contract with third parties to use any Technical \nInformation or technical know-how embodied in the Technical Information, \nadvice, service or other technical assistance furnished by Licensor \nhereunder, and Licensee shall return to Licensor [*], within [*] after notice \nto that effect sent by Licensor to Licensee, all or such Technical \nInformation, advice, service or other technical assistance theretofore \ndelivered or furnished by Licensor hereunder in tangible form relating to the \nProducts and the manufacture and assembly thereof, including all copies or \nreproductions thereof. \n\n8.10  Article Headings: \nThe article headings contained in this Agreement are for the convenience of \nreference only and do not form a part of this Agreement, and shall not in any \nway affect the interpretation of this Agreement. \n\n                                      -7-\n\n\n\n\n\n8.11  Notice: \nFor the purpose of this Agreement, any notice hereunder shall be sufficiently\ngiven if:\n\n8.11A  Delivered personally, in which case it shall be deemed to have been\nreceived at the time of delivery; or\n\n8.11B  Sent by prepaid registered or certified air mail, addressed as follows:\n\n                To Licensee at:\n                UTStarcom Inc.\n                1275 Harbor Bay Parkway, Suite 100, Alameda, California 94502,\n                the U.S.A.\n                Attention: Russell L. Boltwood\n                To Licensor at: \n                Matsushita Communication Industrial Co., Ltd.\n                Communication Systems Division\n                4-3-1, Tsunashima-higashi, Kohoku-ku, Yokohama 223-8639, Japan\n                Attention: General Manager, \n                International Business Department\n\nor to such other addresses as may hereafter be furnished in writing by either\nparty hereto to the other, and such mail shall be deemed conclusively to have\nbeen received on the tenth (10th) business day of the recipient following the\ndate on which it is so mailed; or \n\n8.11C  Sent by a overseas commercial courier to the address set forth in Article\n8.11B, in which case it shall be deemed to have been received on the second\n(2nd) business day of the recipient following the date on which it is deposited\nto such courier.\n\n8.12  Scope of Technical Assistance and Licenses: \nThe Technical Assistance to be provided and licenses granted pursuant to this \nAgreement are solely for manufacturing, assembling and selling the Products \nand not for manufacturing, assembling and selling any individual Components \nor Production Equipment.\n\n8.13  Change of Specifications:\n8.13A  Licensee or the Sub-Licensee may make any change(s) in the specifications\nor to the physical appearance of the Products, provided that such change(s)\nshall be at the risk and responsibility of Licensee and that Licensee shall\ndefend, indemnify and hold Licensor harmless from any losses, liabilities,\ndamages, claims, actions, suits, proceedings, costs and expenses (including fees\nand expenses of counsel) arising out of or in connection with such change(s).\nSuch changed Products shall be also deemed to be Products for the purpose of\nthis Agreement. \n\n8.13B  Upon written notice to Licensee, Licensor may from time to time alter the\nspecifications of or substitute any Components Licensor may supply in any manner\nwhich, in the judgment of Licensor, does not degrade the performance or quality\nof such Components, without incurring any liability to Licensee. \n\nARTICLE 9. TERM & TERMINATION\n\n9.01  This Agreement shall be effective for the period of [*] commencing on the\nEffective Date unless earlier terminated pursuant to the provisions of this\nAgreement, and after expiration of the original term, this Agreement may be\nrenewed by the mutual written consent of the parties hereto under the terms and\nconditions to be then mutually agreed upon and subject to the approval of the\nJapanese Government, if then required. Notwithstanding the foregoing in this\nArticle 9.01, in the event Licensee continues the manufacture of the Products\nafter expiration of the original term, this Agreement shall be deemed\nautomatically renewed year to year under the otherwise same terms and\nconditions, unless Licensor gives a notice of termination at least [*] prior to\nthe expiration of any renewal term. \n\n9.02  If at any time during the term of this Agreement, Licensee makes any\nunauthorized use of any Technical Information, advice or service furnished by\nLicensor to Licensee, Licensor shall have the right to terminate this Agreement\nupon notice without prejudice to any rights which Licensor may have under or in\nconnection with this Agreement. \n\n\n                                      -8-\n\n\n\n\n\n9.03  Should Licensee at any time default in making payment of any technical\nassistance fee or in providing any report as herein provided for and fail to\nremedy such default within [*] written notice to that effect given by Licensor,\nLicensor may, at its option, terminate this Agreement by written notice in\nwriting to Licensee. No failure or delay on the part of Licensor to exercise its\nright of termination of this Agreement for any one or more defaults of Licensee\nin the payment of any technical assistance fee or in providing any report\npursuant hereto shall be construed to prejudice Licensor's rights of termination\nhereof for any other or subsequent default. \n\n9.04  Licensor may terminate this Agreement immediately by giving a written\nnotice to Licensee upon any of the following events: \n(a) any arrangement with direction or any application for bankruptcy,\nreceivership, winding-up or other similar proceeding against Licensee and\/or\nSub-Licensee shall be made by Licensee, Sub-Licensee or any person; \n(b) all of or, in the opinion of Licensor, substantial part of the assets of\nLicensee and\/or Sub-Licensee shall be seized or attached in conjunction with any\naction against Licensee and\/or Sub-Licensee by any third party; \n(c) a sale of all of or in the opinion of Licensor, substantially all of the\nassets of Licensee and\/or Sub-Licensee is made, or this Agreement is assigned by\nLicensee without the prior written consent of Licensor; \n(d) there occurs any such change in the capital ownership and\/or management\ncontrol of Licensee and\/or Sub-Licensee as, in the opinion of Licensor, may\nadversely affect the performance of this Agreement and\/or the benefits or rights\nof Licensor in this Agreement; \n(e) there occurs any difficulties, in Licensor's opinion, to perform the\nobligation under this Agreement due to any of significant changes of the\npolitical, economic or taxation policy by the governmental or quasi-governmental\norganization or agencies in the [*]; \n(f) Licensor judges that the quality of the Products assembled by Licensee or\nSub-Licensee hereunder is found to be insufficient and such insufficiency seems\nnot to be corrected within a reasonable period of time; \n(g) an import license of the Components and\/or Production Equipment into the [*]\nand\/or an import license of the Components and\/or Production Equipment from\nLicensee to Sub-Licensee is not obtained from the competent authority of the\ngovernment of the [*], (to the extent that such license is required by law),\nwithin [*] from the Effective Date hereof; or \n(h) the sub-licensing arrangement between Licensee and Sub-Licensee is not\ncompleted or is terminated. \n\n9.05  Expiration or termination of this Agreement for any reason whatsoever \nshall not affect the rights of Licensor or Licensee which shall have been \naccrued hereunder. \n\n9.06  The following articles shall survive any termination or expiration of this\nAgreement; Articles 1, 3.01D, 3.01E, 5.02-5.06, 6.01A, 6.02, 6.03, 8, 9.05,\n9.06, 10, and 11. \n\nARTICLE 10. \n\n10.01  No Joint Venture: \nThis Agreement is not a joint venture or a partnership, and nothing herein shall\nbe deemed, construed or in any way interpreted to constitute the parties as\njoint venturers or as partners. \n\n10.02  Export Control: \nA.  In connection with the performance of this Agreement and the transactions\ncontemplated hereunder, Licensor, Licensee and Sub-Licensee each hereby agree to\nfully comply with all applicable provisions of the export control laws and\nregulations of [*].\n\nB.  Licensee agrees to treat all data communicated to it by Licensor as required\nby the appropriate export control laws of [*]. If such data are subject to the\nexport control laws of Japan, Licensor shall so notify Licensee together with\nthe applicable Classification Numbers. Should Licensee transmit any non-public\ntechnical data to Licensor in the course of the performance of this Agreement,\nLicensor shall comply with applicable [*] regulations governing the use and\ncommunication of such technical data. If such data are subject to the export\ncontrol regulations of the [*] Licensee shall also notify Licensor together with\nthe applicable Classification Numbers. \n\n\n                                      -9-\n\n\n\n\n\nC.  Licensee agrees that it shall not export the Products manufactured hereunder\nto any country to which export is restricted by the Export Administration\nRegulations without the required approval of the [*] Government to the extent\nrequired.\n\nD.  Licensee and Sub-Licensee shall not knowingly sell, lease or otherwise\ndispose of either any data transmitted hereunder, or the Products, directly or\nindirectly, to any customer who makes use of, or is likely to or intends to make\nuse of, the same for \"Military Purposes\". For the purpose of this section,\n\"Military Purposes\" means the design, development, manufacture or use of any\nweapon, including without limitation nuclear weapon, biological weapon, chemical\nweapon and missiles.\n\nE.  In order to assure the observance and\/or implementation by Licensee and\nSub-Licensee of the foregoing provisions, Licensee and Sub-Licensee shall submit\nnecessary documents (including without limitation, sales contract, sales notes\nand invoices) in accordance with request of Licensor.\n\nF.  In the event that Licensee and Sub-Licensee violates the provisions of this\nArticle 10.02, Licensee and Sub-Licensee shall jointly and severally bear\nresponsibility for any and all damages incurred by Licensor because of such\nviolation, and further, notwithstanding the provisions of Article 8.04 hereof,\nLicensor shall have the right to terminate this Agreement forthwith by giving a\nwritten notice to Licensee, without any prejudice to the rights and remedies\nwhich Licensor may have under this Agreement. \n\nG.  In the course of operation under this Agreement, Licensor may wish to obtain\nfrom Licensee, technical data, whether by direct communication between Licensee\nand Licensor, or by communication between Licensee and employees of Licensor who\nare not U.S. citizens, but who are assigned to Licensee by Licensor. To the\nextent that any such technical data is subject to U.S. export controls and may\nnot be exported except with prior receipt of a Letter of Assurances, this\nAgreement is intended to serve as such Assurances. Licensor assures that it will\nnot re-export, re-transfer or otherwise release any such data or the direct\nproduct thereof except in conformity with the then applicable U.S. export\ncontrol laws and regulations. As used in this Article 10.02, the terms\n\"technical data\" and \"direct product\" shall have the meaning specified in the\nU.S. Export Control Regulations. \n\nARTICLE 11. SEVERABILITY \n\n11.01  If any provision(s) of this Agreement shall contravene any laws or\nregulations, it is agreed that the invalidity or illegality of such provision(s)\nshall not invalidate the whole of this Agreement but this Agreement shall be\nconstrued as if it did not contain the provision(s) claimed or held to be\ninvalid or illegal in the particular jurisdiction concerned insofar as such\nconstruction does not effect the substance of this Agreement, and the rights and\nobligations of the parties hereto shall be construed and enforced accordingly.\nIn the event, however, that such claim of invalidity or illegality shall\nsubstantially and adversely effect the interest of either party hereto, the\nparties hereto shall negotiate a mutually acceptable provision(s) not\nconflicting with such laws, and, if the parties hereto cannot agree upon a\nsubstitute provision(s) within a reasonable period, Licensor or Licensee may\nterminate this Agreement forthwith.\n\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement in two (2)\noriginal counterpart instruments, to be executed and delivered in English, as of\nthe date written below, by their duly authorized officers.\n\n<\/pre>\n\n
\n
Matsushita Communication Industrial                           UTStarcom Inc.
\nCo., Ltd., Communication Systems Division
\n                                                          
\nBy:                                                           By:
\n    ————————————————-              —————————————————
\nName:   Yasuo Katsura                                         Name:   Hong Liang Lu
\n       ———————————————-                ————————————————-
\nTitle:  Senior Managing Director                              Title:  President & CEO
\n        ———————————————                 ————————————————
\nDate:   December 1, 2000                                      Date:   December 1, 2000
\n       ———————————————-                ————————————————-
\n<\/c><\/s><\/caption>\n<\/table>\n
                                      -10-<\/p>\n
Exhibit A
\n———<\/p>\n
                                List of Products
\n                                —————-<\/p>\n
[*]<\/p>\n
                                      -11-<\/p>\n
Exhibit B (1\/2)
\n—————<\/p>\n
                          List of Technical Information
\n                          —————————–<\/p>\n
         Design Related Materials
\n         ————————
\n         [*]<\/p>\n
         1.2  Hardware and Mechanical materials<\/p>\n
         [*]<\/p>\n
         1.3  Software Related materials<\/p>\n
         [*]<\/p>\n
                                      -12-<\/p>\n
Exhibit B (2\/2)
\n—————<\/p>\n
         2  Production Related materials<\/p>\n
         [*]<\/p>\n
         3  Quality control & Assurance materials<\/p>\n
         [*]<\/p>\n
                                      -13-<\/p>\n
Exhibit D
\n———<\/p>\n
                            Technical Assistance Fee
\n                            ————————<\/p>\n
1.   The technical assistance fee for each unit of the Products shall be
\n     calculated in accordance with the following formula (“Formula”);<\/p>\n
          [*]<\/p>\n
2.   The following products shall be categories for technical assistance fee;<\/p>\n
          [*]<\/p>\n
                                      -14-<\/p>\n
       Schedule of Technical Services at the initial stage and the payment
\n       ——————————————————————-<\/p>\n
                                       [*]<\/p>\n
                                      -15-<\/p>\n
                       Technical Service Costs and Expense
\n                       ———————————–<\/p>\n
                                       [*]<\/p>\n
                                      -16-<\/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":[9613,9620],"class_list":["post-42887","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__services"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42887","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=42887"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42887"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42887"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42887"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}