EXHIBIT 10.95


 


[* * *].  Certain
information in this exhibit has been omitted and filed separately with the
Commission.  Confidential treatment has
been requested with respect to the omitted portions.


 


 


REVENUE SHARING PURCHASE AGREEMENT

(AMERICAS)


 


	
  SELLER:

  	
  UTSTARCOM, INC.

  	
  PURCHASER:

  	
  MULTIDATA

  
	
   

  	
   

  	
   

  	
   

  
	
  Incorporation:

  	
  Delaware

  	
  Incorporation:

  	
  Honduras Republic

  
	
   

  	
   

  	
   

  	
   

  
	
  Address:

  	
  1275 Harbor Bay Parkway

  Alameda, California 94502

  	
  Address:

  	
  Boulevard Suyapa, Edificlo AHIBA

  Planta Baja, Tegucigalpa, Honduras

  
	
   

  	
   

  	
   

  	
   

  
	
  Attn:

  	
  Legal Department

  	
  Attn.

  	
  José Rafael Ferrari

  
	
   

  	
   

  	
   

  	
   

  
	
  Telephone:

  	
  (510) 864-8800

  	
  Telephone:

  	
  504 235-7635

  
	
   

  	
   

  	
   

  	
   

  
	
  Fax:

  	
  (510) 864-8802

  	
  Fax:

  	
  504 239-0075

  



 


Effective Date:
October 21st, 2003


 


This REVENUE SHARING PURCHASE AGREEMENT, including all
exhibits (“Agreement’), is the entire agreement between the Parties concerning
Purchaser’s purchase of the Products or Services (as defined below).  This Agreement supersedes, and its terms
govern, any prior agreements (including without limitation any nondisclosure
agreements), proposals or other communications, oral or written, between the
parties with respect to the Products or Services. This Agreement may be changed
only by mutual written agreement of authorized representatives of the parties.
This Agreement governs all documents (e.g., purchase orders) issued by
PURCHASER with respect to the Products or Services and any additional or
conflicting terms and conditions contained in any such documents are of no
force and effect. In consideration of the mutual promises herein, UTSTARCOM and
PURCHASER agree to be bound by this Agreement, including the following
exhibits:


 


Exhibit A. Terms and Conditions


Exhibit B. Products, Services and Discounts


Exhibit C. Services Statement of Work


Exhibit D. Product and Service Purchase List for Each Phase
of the Project


Exhibit E. Payment and Related Terms


Exhibit F. Form of Acceptance Certificate


Exhibit G. FCPA Policy


Exhibit H. EEA Policy


 


PURCHASER AGREES TO PURCHASE UTSTARCOM PRODUCTS AND/OR
SERVICES FOR A TOTAL CONTRACT PRICE UP TO US[***] ([***] IN PHASE I OF THE
PROJECT, [***] IN PHASE II OF THE PROJECT, [***] IN PHASE III OF THE
PROJECT AND [***] IN PHASE IV OF THE PROJECT), DURING A PERIOD COMMENCING
ON THE EFFECTIVE DATE ABOVE THROUGH OCTOBER 31, 2006 (SUCH PERIOD SUBJECT
TO MUTUALLY AGREED UPON EXTENSIONS BY THE PARTIES), AS MORE FULLY DESCRIBED IN
THE PRODUCT AND SERVICE PURCHASE LIST ATTACHED HERE AS EXHIBIT D. AS SET
FORTH ON EXHIBIT D, IT IS ANTICIPATED THAT THE PROJECT THAT IS THE SUBJECT
OF THIS AGREEMENT (THE “PROJECT”) WILL INVOLVE FOUR PHASES OF PURCHASES.
PURCHASES SHALL BE MADE BY PURCHASE ORDER PURSUANT TO THE TERMS AND CONDITIONS
ATTACHED HERETO; HOWEVER, THIS CONTRACT BETWEEN PURCHASER AND UTSTARCOM
CONSTITUTES A LEGALLY-BINDING OBLIGATION BY PURCHASER TO PURCHASE PRODUCTS
AND/OR SERVICES DESCRIBED IN EXHIBIT D ON A PHASE BY PHASE DEPLOYMENT UP
TO THE CONTRACT PRICE ABOVE OR ANY OF THE PHASES DESCRIBED IN EXHIBIT D.


 


1
















 


PRIOR TO DEPLOYMENT OF EACH PHASE, PURCHASER AND UTSTARCOM
WILL CONDUCT A BUSINESS REVIEW TO INCLUDE AND, OR MODIFY SUBSCRIBER DEMAND,
TECHNOLOGY REQUIREMENTS AND DEPLOYMENT SCHEDULE. PLEASE REVIEW THE ATTACHED
EXHIBITS, WHICH INCLUDE IMPORTANT LEGAL TERMS, SUCH AS LIMITATIONS OF
WARRANTIES AND REMEDIES.


 


	
  UTSTARCOM

  	
   

  	
  PURCHASER

  	
   

  
	
   

  	
   

  
	
  /s/ Rene Mendez 

  	
   

  	
  /s/ Jose Rafael Ferrari

  	
   

  
	
  Authorized Signature

  	
  Authorized Signature

  
	
   

  	
   

  
	
  Rene Mendez

  	
   

  	
  Jose Rafael Ferrari

  	
   

  
	
  Printed Name  

  	
  Printed Name

  
	
   

  	
   

  
	
  Vice President CA LA

  	
   

  	
  President

  	
   

  
	
  Title

  	
  Title

  
	
   

  	
   

  
	
  October 21, 2003

  	
   

  	
  October 21, 2003

  	
   

  
	
  Date

  	
  Date

  



 


2
















 


EXHIBIT A – TERMS AND CONDITIONS


 


This Agreement (including all exhibits) constitutes the
entire agreement for the sale of UTStarcom PAS products (the “Products”) and/or
services (the “Services”) by UTStarcom, Inc. (“UTStarcom”) to you
(“Purchaser”).  The Products and Services
to be purchased hereunder are described in Exhibits B and C hereto. The terms
and conditions in this Agreement will override and supersede any other documents
issued by Purchaser, including purchase orders, unless expressly agreed to in
writing by UTStarcom.


 


1.                                       Ordering.
Purchaser will order Products and/or Services by issuing a written purchase
order to UTStarcom. It is anticipated that the project that is the subject of
this Agreement will involve four phases of purchases (as described in detail in
Exhibit D hereto), and that Purchaser will issue one purchase order to
UTStarcom in connection with each phase. Orders are subject to acceptance by
UTStarcom, which occurs upon delivery to Purchaser of an Order Acknowledgement
form. If UTStarcom rejects an order due to insufficient revenues being
generated to UTStarcom for the Project, then UTStarcom will extend to Purchaser
the same pricing as stated in Exhibit D or the current market pricing under
substantially similar business conditions; provided however, that Purchaser
will be required to execute a new contract with UTStarcom’s standard payment
terms and submit a new purchase order to UTStarcom pursuant to such new
contact. Multidata can make changes in delivery schedule, including
cancellation of all or any of the phases up to [***] prior to the
scheduled delivery, after this it will be subject to a rescheduling charge of [***]
of the net order value of the rescheduled portion of the order. Purchaser
agrees that the Products purchased under this Agreement are not for resale, and
that Purchaser is purchasing the Products for internal use by Purchaser in
conducting its business operations.


 


2.                                       Shipment.
Delivery of Products is [***], such delivery to be made to a
carrier/freight forwarder selected by UTStarcom unless otherwise specified by
Purchaser.  Other shipping arrangements
specified by Purchaser may be made by UTStarcom for the actual cost of shipping
[***].  The [***]
will be calculated based on [***] of the actual cost of shipping.
Products will be packaged by UTStarcom in accordance with UTStarcom’s standard
practices.  Title, possession and risk of
loss regarding the Products shall [***]


 


3.                                       Payment.


 


3.1                                 All
Products and/or Services sold to Purchaser shall be paid for in accordance with
the terms and conditions contained in Exhibit E to this Agreement. Exhibit E
also sets forth certain terms and conditions which will protect the interests
of UTStarcom until Purchaser pays UTStarcom in full for the Products and/or
Services.


 


3.2                                 The
purchase price for Products and/or Services does not include taxes and other
charges, All taxes, including sales, use, privilege, excise or other taxes
(other than taxes computed on the basis of the net income of UTStarcom),
duties, assessments and other related charges levied by any jurisdiction, and
shipping, handling, insurance, brokerage and similar fees pertaining to the
Products and/or Services, shall be paid by Purchaser. [***]


 


3.3                                 UTStarcom
shall determine Purchaser’s credit limit from time to time at UTStarcom’s
discretion, and Purchaser will provide to UTStarcom such financial information
from time to time as may be reasonably requested by UTStarcom.  If any order by Purchaser exceeds its credit
limit, or Purchaser fails to make payments when due or otherwise defaults or
commits a breach hereunder, UTStarcom may, effective immediately upon giving
notice to Purchaser, (i) suspend credit and delay shipment until such terms are
met, and/or (ii) alter the terms of payment: and/or (iii) cancel any order then
outstanding and/or (iv) pursue any other remedies available by law or equity.
Further, if Purchaser fails to pay any charges when due, UTStarcom may charge
Purchaser a late payment charge equal to [***].


 


4.                                       Acceptance.
Upon completion of each phase of the Project, the parties will conduct testing
of the Products and/or Services purchased in that phase of the Project. The
criteria for acceptance of the Products and/or Services purchased in each phase
of the Project shall be the commercial in-service handling of the first
successful call of the deployment. Promptly upon the satisfaction of such
acceptance criteria, Purchaser shall sign an Acceptance Certificate with
respect to such Products and/or Services. The form of Acceptance Certificate to
be used is attached hereto as Exhibit F.


 


5.                                       Limited
Warranty. UTStarcom warrants that hardware Products will be free from
defects in workmanship and materials, under normal use and service, for [***]
after delivery to Purchaser. UTStarcom warrants that (i) each


 


3
















 


software program will perform in substantial conformance to its program
specifications, and (ii) the media containing the software will be free of
defects in materials and workmanship under normal use, for a period of [***]
after delivery to Purchaser.  This
limited warranty is described in more detail in the warranty card or Product
manual accompanying the Product, and/or on UTStarcom’s International
Professional Services website. EXCEPT FOR THIS WARRANTY, UTSTARCOM DISCLAIMS
ALL WARRANTIES WITH RESPECT TO THE PRODUCTS, EXPRESS OR IMPLIED, INCLUDING AS
TO PERFORMANCE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED
HEREIN, THE FOREGOING IS PURCHASER’S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF
THE PRODUCT WARRANTY. TO THE FULL EXTENT ALLOWED BY LAW, UTSTARCOM EXCLUDES FOR
ITSELF AND ITS SUPPLIERS ANY LIABILITY, WHETHER BASED IN CONTRACT OR TORT
(INCLUDING NEGLIGENCE), FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, OR
PUNITIVE DAMAGES OF ANY KIND.


 


6.                                       Software
And Intellectual Property License. 
Certain Products contain or consist of object-readable code
(“Software”), and/or patent, copyright, mask work or trademark rights, or trade
secret, or other Information proprietary to UTStarcom (“Intellectual
Property”). Notwithstanding any other provisions herein, UTStarcom does not
transfer to Purchaser any right, title or interest to such Software or
Intellectual Property. UTStarcom grants Purchaser a 

[***] license to use the Software and Intellectual Property
solely in direct connection with use of the Products, as such use is mutually
intended by Purchaser and UTStarcom. 
Purchaser will not: a) copy all or any parts of the Software or
Intellectual Property (unless first authorized in advance and in writing by
UTStarcom); b) attempt on its own, or encourage or permit any third party to
attempt, to reverse engineer, reverse compile or disassemble the Software or
Intellectual Property; or c) disclose to any third party whatsoever the
Software or Intellectual Property.


 


7.                                       Indemnification.
[***]


 


8.                                       Liability
Limitations. [***]


 


9.                                       Confidential
Information. Either party may provide to the other certain information
which is confidential in nature in connection with the Products and/or Services
and this Agreement.  All such information
shall be marked as confidential in order to be protected hereunder.
Confidential information shall not be divulged to any third party without the
prior written consent of the disclosing party for a period of [***]
following receipt This obligation shall not apply to information which: (i) now
or hereafter, through no unauthorized act or failure to act on recipient’s
part, becomes generally known or available; (ii) is lawfully known to the
recipient without an obligation of confidentiality at the time recipient
receives the same from the disclosing party, as evidenced by written records;
(iii) is hereafter lawfully furnished to the recipient by a third party without
restriction on disclosure; (iv) is furnished to others by the disclosing party
without restriction on disclosure; (v) is independently developed by the recipient
without use of the disclosing party’s confidential information; or (vi) is
required to be disclosed pursuant to a requirement of a governmental agency or
law, so long as the recipient provides prompt notice to the disclosing party of
such requirement prior to any such disclosure.


 


10.                                 Arbitration.


 


10.1                           Procedure.
Except as otherwise provided in Section 10.2 below, any dispute or claim
arising in connection with this Agreement, or the breach, validity,
interpretation, or enforceability of any provision of this Agreement, shall be
resolved by final and binding arbitration conducted in accordance with and
subject to the International Arbitration Rules for commercial arbitration of
the American Arbitration Association by three (3) arbitrators selected in accordance
with those rules. The arbitration shall be held In Broward County, Florida, or
such other place as the parties may agree. The arbitrators will allow such
discovery as is appropriate, consistent with the purpose of arbitration in
accomplishing fair, speedy, and cost-effective resolution of disputes. All
discovery will be completed, and the arbitration hearing will be commenced,
within forty-five (45) days after appointment of all of the arbitrators, and
the arbitration hearing will conclude within thirty (30) days after it
commences.  The arbitrators will make
every effort to enforce these timing requirements strictly, but may extend the
time periods upon a showing that exceptional circumstances require extension to
prevent manifest injustice. The decision of the arbitrators will be rendered in
writing and will explain the reasons therefore. The arbitrators may render
awards of monetary damages subject to any limitations on liability contained in
this Agreement, and in no event shall such arbitrators be authorized to award
punitive damages, direction to take or refrain from taking action, or both, and
may, at their discretion, order one party to reimburse the other for attorneys’
fees and other expenses reasonably incurred by the other party in connection
with the arbitration. Judgment upon the award rendered in any such arbitration
may be entered in any court having jurisdiction


 


4
















 


thereof, or application may be made to such court
for a judicial acceptance of the award and an enforcement, as the law of such
jurisdiction may require or allow.


 


10.2                           Exceptions.
Notwithstanding the provisions of Section 10.1 above, the parties shall have
the right to seek injunctive or similar judicial relief in the event of any
breach or threatened breach of any of the obligations of the parties in this
Agreement regarding confidentiality or any claim of infringement of a patent or
copyright, or of misappropriation of a trade secret, or any other situation
where imminent harm to a party may occur.


 


10.3                           This
Agreement shall be governed, construed and interpreted in accordance with the
internal laws of the State of Florida without application of conflict of laws
principles. This Agreement shall not be governed by the United Nations
Convention on the International Sale of Goods.


 


11.                                 Force
Majeure.  UTStarcom will not be
liable for any failure to perform its obligations hereunder where such failure
results from causes beyond its control.


 


12.                                 Term;
Termination.


 


12.1                           This
Agreement shall become effective on the Effective Date set forth on page 1 of
this Agreement, and shall continue for a period of three (3) years.


 


12.2                           This
Agreement may be extended by mutual written agreement of the parties.


 


12.3                           Both
parties may terminate this Agreement Immediately upon written notice to the
Purchaser under any of the following circumstances:


 


a)                                      Purchaser
is in breach of a material term of this Agreement and the breach is not cured
within thirty (30) days after written notice thereat, or


 


b)                                     Purchaser
ceases to carry on business as a going concern, becomes the object of voluntary
or involuntary proceedings in bankruptcy or litigation, or has a receiver
appointed with respect to a substantial part of its assets; or


 


c)                                      Purchaser
assigns in any manner (by operation of law or otherwise) its rights and
responsibilities under this Agreement, without the prior written consent of
UTStarcom.


 


12.4                           Upon
termination of this Agreement, Purchaser shall pay UTStarcom for all Products
shipped and Services provided prior to the date of termination, and shall
forthwith return all originals and copies of materials provided by UTStarcom to
Purchaser in relation to any Services.


 


13.                                 Severability.
In the event any of the terms of this Agreement become or are declared to be
illegal or otherwise unenforceable by any court of competent jurisdiction, such
term[s] shall be null and void and shall be deemed deleted from this Agreement.
All remaining terms of this Agreement shall remain in full force and effect.


 


14.                                 Independent
Contractor Relationship.  Purchaser
and UTStarcom understand, acknowledge and agree that UTStarcom’s relationship
with Purchaser will be that of an independent contractor and that nothing in
this Agreement is intended to or should be construed to create a partnership,
joint venture, or employment relationship.


 


15.                                 Waiver.
No waiver by UTStarcom of any breach by Purchaser of any of the provisions of
this Agreement shall be deemed a waiver of any preceding or succeeding breach
of the same or any other provisions hereof. No such waiver shall be effective
unless in writing and then only to the extent expressly set forth in writing by
UTStarcom.


 


16.                                 Compliance.


 


16.1                           Purchaser
represents that it is not importing or exporting Products except in compliance
with the laws of all relevant jurisdictions.


 


5
















 


16.2                           Purchaser
represents and warrants that it has reviewed and understands UTStarcom’s Policy
Requiring Compliance with the Foreign Corrupt Practices Act (“FCPA Policy”) (a
copy of the policy is attached hereto as Exhibit G, and incorporated by
reference). Purchaser further agrees to indemnify and hold harmless UTStarcom
where any liability, criminal or civil, attaches to UTStarcom (or its
subsidiaries) by virtue of Purchaser’s violation of the FCPA Policy.


 


16.3                           Purchaser
represents and warrants that it has reviewed and understands UTStarcom’s Policy
Requiring Compliance with the Economic Espionage Act of 1996 (“EEA Policy”) (a
copy of the policy is attached hereto as Exhibit l, and incorporated by
reference). Purchaser furthers agrees that by the duly authorized signature
below, Purchaser agrees to abide in all respects with the attached EEA Policy.
Purchaser further agrees to indemnify and hold harmless UTStarcom where any
liability, criminal or civil, attaches to UTStarcom (or its subsidiaries,
successors or assigns) by virtue of Purchaser’s violation of the EEA Policy.


 


17.                                 Exclusivity.
[***]


 


6
















 


EXHIBIT B – PRODUCTS AND SERVICES


 


[***]


 


7
















 


EXHIBIT C – SERVICES STATEMENT OF WORK


 


[***]


 


8
















 


EXHIBIT D – PRODUCT AND SERVICE PURCHASE LIST FOR EACH PHASE
OF THE PROJECT


 


[***]


 


9
















 


EXHIBIT E – PAYMENT AND RELATED TERMS


 


[***]


 


10
















 


EXHIBIT F – FORM OF ACCEPTANCE CERTIFICATE


 


[***]


 


11
















 


EXHIBIT G – UTSTARCOM POLICY REQUIRING COMPLIANCE WITH 

THE FOREIGN CORRUPT PRACTICES ACT (FCPA)


 


It is the policy of UTStarcom (referred to here as
“UTStarcom” or the “Company”) that:


 


1)                                      The
use of Company funds or assets for any unlawful or improper purpose is strictly
prohibited. No payment shall be made to, or for the benefit of, government
employees for the purpose of, or otherwise in connection with, the securing of
sales to or obtaining favorable action by a government agency. Gifts of substantial
value to or lavish entertainment of government employees are prohibited since
they can be construed as attempts to influence government decisions in matters
affecting the Company’s operation. Any entertaining of public officials, or the
furnishing of assistance in the form of transportation or other services should
be of such nature that the official’s integrity or reputation will not be
compromised.


 


2)                                      The
offer, payment, or promise to transfer in the future company funds or assets,
or the delivery of gifts or anything else of value to foreign officials,
foreign political parties or officials or candidates of foreign political
parties, is strictly prohibited for the purpose of influencing any act or
decision of any such person in his or her official capacity, including the
decision to fail to perform his or her official functions, or to use such
persons or party’s influence with a foreign government or instrumentality in
order to affect or to influence any act or decision of such government or instrumentality
in order to assist the Company in obtaining or retaining business for or with,
or directing business to any person or entity.


 


3)                                      All
records must truly reflect the transactions they record. All assets and
liabilities shall be recorded in the regular books of account. No undisclosed
or unrecorded fund or asset shall be established for any purpose. No false or
artificial entries shall be made in the books and records for any reason. No
payment shall be approved or made with the intention or understanding that any
part of such payment is to be used for any purpose other than that described by
the document supporting the payment.


 


4)                                      No
political contribution shall be made, directly or indirectly, with corporate
funds or assets regardless of whether the contributions are legal under the
laws of the country in which they are made.


 


5)                                      Any
person who learns of or suspects a violation of this Policy should promptly
report the matter to the President or Chief Financial Officer, as appropriate
in the circumstances. All managers shall be responsible for the enforcement of
and compliance with this Policy, including the necessary distribution to insure
employee knowledge and compliance.


 


12
















 


EXHIBIT H – UTSTARCOM POLICY REQUIRING COMPLIANCE WITH 

THE ECONOMIC ESPIONAGE ACT OF 1996


 


It is the policy of UTStarcom that both UTStarcom and its
employees comply with the requirements of the Economic Espionage Act of 1996
(“EEA”).


 


The EEA provides criminal penalties of up to $10,000,000,
15 years in prison, or both, where an individual or company knowingly
undertakes any of the following acts (or attempts or conspires with others to
commit any of the following acts:


 


(1)                                  Steals, or without
authorization appropriates, takes, carries away, or conceals, or by fraud,
artifice or deception obtains a trade secret;


 


(2)                                  Without authorization
copies, duplicates, sketches, draws, photographs, downloads, uploads, alters,
destroys, photocopies, replicates, transmits, delivers, sends, mails,
communicates, or conveys a trade secret, or


 


(3)                                  Receives, buys, or possesses
a trade secret, knowing the same to have been stolen or appropriated, obtained,
or converted without authorization.


 


The EEA defines “trade secret” as: “All forms and types of
financial, business, scientific, technical, economic, or engineering
information ... whether tangible or intangible, and whether or how stored,
compiled, or memorialized physically, electronically, graphically,
photographically, or in writing if: 1) the owner of the trade secret has taken
reasonable measures to keep such Information secret; and 2) the information
derives independent economic value, actual or potential, from not being
generally known to, and not being readily ascertainable through proper means by
the public.”


 


13