EXHIBIT 10.93


 


[* * *].  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.


 


DISTRIBUTOR
AGREEMENT


 


	
  UTSTARCOM:

  	
  UTSTARCOM, Inc.

  	
   

  	
  PURCHASER:

  	
  MULTIDATA

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Incorporation:

  	
  Delaware

  	
   

  	
  Incorporation:

  	
  Honduras Republic

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Address:

  	
  1275 Harbor Bay Parkway Alameda, California  94502

  	
   

  	
  Address:

  	
  Boulevard Suyapa, Edificio 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

  



 


Territory: [***]


 


Annual Quota:
US$[***]


 


Effective Date:
October 21, 2003


 


This DISTRIBUTOR Agreement, including all exhibits
(“Agreement”), is the entire agreement between the parties concerning
Distributor’s resale in the Territory of the Products (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. 
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
DISTRIBUTOR with respect to the Products 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 DISTRIBUTOR agree to be bound by this Agreement,
including the following exhibits:


 


Exhibit A.                    Terms and Conditions


Exhibit B.                      Products and Discounts


 


PLEASE REVIEW THE
ATTACHED EXHIBITS, WHICH INCLUDE IMPORTANT

LEGAL TERMS, SUCH AS LIMITATIONS OF WARRANTIES AND REMEDIES.


 


	
  UTSTARCOM

  	
   

  	
  DISTRIBUTOR

  
	
   

  	
   

  	
   

  
	
  /s/ Rene Mendez 

  	
   

  	
  /s/ Jose Rafael
  Ferrari 

  
	
  Authorized
  Signature

  	
   

  	
  Authorized
  Signature

  



 


1
















 


	
  Rene Mendez

  	
   

  	
  Jose Rafael
  Ferrari

  
	
  Printed Name

  	
   

  	
  Printed Name

  
	
   

  	
   

  	
   

  
	
  Vice President
  CA LA

  	
   

  	
  President

  
	
  Title

  	
   

  	
  Title

  
	
   

  	
   

  	
   

  
	
  October 21, 2003

  	
   

  	
  October 21, 2003

  
	
  Date

  	
   

  	
  Date

  



 


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EXHIBIT A—TERMS
AND CONDITIONS


 


1.                                      Appointment


 


UTSTARCOM appoints DISTRIBUTOR, and DISTRIBUTOR accepts such
appointment, as a [***] distributor to other Distributors and
end user customers within the Territory for the products listed on Exhibit B
hereto (“Products”); provided, however, that DISTRIBUTOR’s contract with such
other Distributors shall contain terms and conditions which are consistent with
the terms and conditions contained herein. 
UTSTARCOM may add products to, or remove products from, Exhibit B from
time to time during the term of this Agreement, and any such addition or
removal shall be effective immediately upon written notification by
UTSTARCOM.  [***]


 


2.                                      Prices


 


2.1                                 DISTRIBUTOR’s
purchase price for the Products shall be: (a) the prices stated in UTSTARCOM’s
then-current standard international price list (“International Price List”) [***].


 


2.2                                 [***].


 


3.                                      Orders


 


3.1                                 DISTRIBUTOR
shall order Products by written purchase order, which shall reference this
Agreement and shall be deemed governed by this Agreement.  Orders are subject to acceptance by UTSTARCOM
and its assignment of delivery schedules in accordance with Product
availability.  Any inconsistent or
additional terms and conditions contained on DISTRIBUTOR’s purchase orders
shall not be binding on UTSTARCOM.


 


3.2                                 Changes by
DISTRIBUTOR in delivery schedule (including cancellation) made within five (5)
days of scheduled delivery will be subject to a rescheduling charge of [***]
of the net order value of the rescheduled portion of the order.


 


4.                                      Shipments


 


Delivery of Products purchased under this Agreement is [***], such delivery to be made to a carrier or freight forwarder
selected by UTSTARCOM unless otherwise specified in writing by
DISTRIBUTOR.  Products will be packaged
by UTSTARCOM in accordance with UTSTARCOM’s standard practices.  [***]


 


5.                                      Payment
Terms


 


DISTRIBUTOR shall pay the purchase price for the Products as
follows:


 


5.1                                 DISTRIBUTOR
shall pay to UTSTARCOM a nonrefundable amount equal to [***] of
the purchase price of each Product prior to shipment.  The balance of [***] of the
purchase price of each Product shall be paid [***] after
shipment, using an irrevocable Letter of Credit at a financial institution and
under terms that are mutually agreeable by both parties.


 


5.2                                 The purchase
price for Products 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, shall be paid by [***].  In lieu of certain taxes, [***].


 


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5.3                                 UTSTARCOM
shall determine DISTRIBUTOR’s credit limit from time to time at UTSTARCOM’s
discretion.  DISTRIBUTOR will provide to
UTSTARCOM such financial information from time to time as may be reasonably
requested by UTSTARCOM and which shall be requested only for purposes of
upgrading DISTRIBUTOR’s credit limit.  If
any order by DISTRIBUTOR exceeds its credit limit, or DISTRIBUTOR fails to make
payments when due or otherwise defaults or commits a breach hereunder,
UTSTARCOM may, effective immediately upon giving notice to DISTRIBUTOR, (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 DISTRIBUTOR fails to pay any
charges when due, UTSTARCOM may charge DISTRIBUTOR a late payment charge equal to
[***].


 


6.                                      Other
Obligations of DISTRIBUTOR


 


6.1                                 DISTRIBUTOR
will use reasonable commercial efforts to promote the sale of the Products.


 


6.2                                 DISTRIBUTOR
will purchase Products having an aggregate invoice price up to the quota [***]
during the initial annual term and during each subsequent annual term of this
Agreement.


 


6.3                                 DISTRIBUTOR
shall promptly advise UTSTARCOM of any complaints or claims brought or
threatened against DISTRIBUTOR with respect to the sale or use of the Products
or with respect to any alleged infringement.


 


6.4                                 DISTRIBUTOR
acknowledges that it is familiar with the United States Foreign Corrupt
Practices Act, which prohibits the offering, giving or promising to offer or
give, directly or indirectly, money or anything of value to any official of a
government, political party or instrumentality thereof in order to assist
DISTRIBUTOR or UTSTARCOM in obtaining or retaining business.  DISTRIBUTOR shall not act in any fashion or
take any action, in the performance of its obligations under this Agreement,
which violates, or would render UTSTARCOM liable for a violation of, either the
United States Foreign Corrupt Practices Act or any similar statute or
regulation in any jurisdiction in which DISTRIBUTOR does business.  DISTRIBUTOR’s violation of this provision
shall be deemed a material breach of this Agreement, entitling UTSTARCOM to
terminate this Agreement immediately by written notice to DISTRIBUTOR.  DISTRIBUTOR agrees to defend, indemnify and
hold UTSTARCOM harmless from all liabilities, claims, losses and damages
arising from DISTRIBUTOR’s breach of this obligation.


 


7.                                      Other
Obligations of UTSTARCOM


 


7.1                                 If sales
transactions occur that involve the sale of Products by UTSTARCOM directly to
end user purchasers that were referred to UTSTARCOM by DISTRIBUTOR, UTSTARCOM
and the DISTRIBUTOR will mutually agree upon the commission paid to DISTRIBUTOR
based upon UTSTARCOM ́s normal business practice of similar sales through
distributors in other territories.


 


7.2                                 While Products
purchased by DISTRIBUTOR are under warranty as set forth under Section 8 below,
UTSTARCOM will provide DISTRIBUTOR with access to all software updates
specifically applicable to such Products, subject to the configurations and
options that DISTRIBUTOR has purchased. 
A software update is a formal software release which is a “maintenance”
release that corrects deficiencies and/or bugs affecting performance to
UTSTARCOM published specifications.  A
software upgrade is a formal software release that is (i) a software release which
incorporates major functionality changes to the software; (ii) a feature
enhancement that materially improves functionality or performance of software
and that UTSTARCOM markets as a separate commercially


 


4
















 


available product; or (iii) a custom developed
feature for DISTRIBUTOR or another customer of UTSTARCOM.  Software upgrades involve an additional
charge and may be purchased by DISTRIBUTOR.


 


8.                                      Limited
Warranty


 


UTSTARCOM warrants that hardware Products will be free from
defects in workmanship and materials, under normal use and service, for [***] after delivery of the hardware Products to the end user; provided
that the warranty period shall not exceed [***] from the date of delivery to
DISTRIBUTOR.  UTSTARCOM warrants that (i)
each 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 of the software Products to the end user.  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 DISTRIBUTOR’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.


 


9.                                      Confidentiality:


 


No proprietary information disclosed by either party to the
other in connection with this Agreement shall be disclosed to any person or
entity other than the recipient party’s employees and contractors directly
involved with the recipient party’s use of such information who are bound by a
written agreement to protect the confidentiality of such information, and such
information shall otherwise be protected by the recipient party from disclosure
to others with the same degree of care accorded to its own proprietary
information.  To be subject to this
provision, information must be delivered in writing and designated as
proprietary or, if oral information, summarized in a writing delivered to the
recipient within thirty (30) days after the oral disclosure.  Information will not be subject to this
provision if it is or becomes a matter of public knowledge without the fault of
the recipient party, if it was a matter of written record in the recipient
party’s files prior to disclosure to it by the other party, or if it was or is
received by the recipient party from a third person under circumstances
permitting its unrestricted disclosure by the recipient party.  Upon termination of this Agreement, each
party shall promptly deliver to the other all proprietary information, together
with any copies, excerpts, summaries, memoranda, or notes thereof or thereon,
of the other party in the possession or control of such part and all companies
thereof.  The obligations under this
Section shall continue for both parties for a period of five (5) years after
delivery by UTSTARCOM to DISTRIBUTOR of the last Product under this Agreement.


 


10.                               Trademark
Usage


 


10.1                           UTSTARCOM
grants to DISTRIBUTOR the [***] right to use UTSTARCOM’s
tradename, logo and the trademarks for the Products in the Territory as
specified by UTSTARCOM from time to time (collectively, the “Licensed Marks”)
solely in connection with the promotion and sale of the Products by DISTRIBUTOR
in accordance with the terms and conditions of this Agreement; provided,
however, that (i) no names or descriptive words or phrases shall be
co-joined or used by DISTRIBUTOR in any way in connection with the Licensed
Marks; (ii) DISTRIBUTOR will submit to UTSTARCOM for its prior written approval
any material incorporating any of the Licensed Marks which DISTRIBUTOR proposes
to use in any fashion; (iii) DISTRIBUTOR will comply with any instruction or
requirement issued by UTSTARCOM with respect to the appearance and use of the
Licensed Marks; (iv) DISTRIBUTOR shall use the Licensed Marks only in a manner
so as


 


5
















 


to preserve and protect all rights of UTSTARCOM
therein and (v) DISTRIBUTOR shall not use or adopt any names or marks which
might be confusingly similar to the Licensed Marks.


 


10.2                           Nothing herein
grants to DISTRIBUTOR or its customers any interest in or to the Licensed Marks
and all rights in the Licensed Marks shall at all times during the term of this
Agreement and thereafter, be and remain the sole property of UTSTARCOM, and all
goodwill and other benefits associated therewith are hereby assigned to, and
shall inure to, UTSTARCOM.  DISTRIBUTOR
hereby agrees that it shall not remove the Licensed Marks from any product
furnished by UTSTARCOM.  DISTRIBUTOR and
its customers shall have no right to alter, otherwise use or in any way
transfer the Licensed Marks.  DISTRIBUTOR
shall promptly notify UTSTARCOM of any actual or potential infringement of,
unauthorized use of, or adverse claim to the Licensed Marks and DISTRIBUTOR
shall provide UTSTARCOM with reasonable assistance in any efforts to prevent or
terminate any infringement, unauthorized use or limitation thereof.


 


11.                               Software
License


 


Certain Products contain or consist of software
(“Software”).  Notwithstanding any other
provisions of this Agreement, UTSTARCOM does not transfer to DISTRIBUTOR any
right, title or interest to such Software. 
UTSTARCOM grants DISTRIBUTOR a [***] license to distribute the Software
and sublicense end-users of the Products to use the Software solely in
connection with their use of the Products. 
To the maximum extent such prohibition is permitted by law, DISTRIBUTOR
shall not copy all or any part of the Software, or attempt, encourage or permit
any third party to attempt, to reverse engineer, reverse compile or disassemble
all or any part of the Software.  To the
extent that DISTRIBUTOR requires any information concerning the Software or its
internal structure for purposes of interoperability, DISTRIBUTOR shall send a
written notice, detailing all particulars, to UTSTARCOM in accordance with the
notice provisions hereof.


 


12.                               Intellectual
Property Infringement Indemnification


 


12.1                           [***]


 


12.2                           [***]


 


12.3                           [***]


 


13.                               Indemnification
by DISTRIBUTOR


 


[***]


 


14.                               Term
and Termination


 


14.1                           The initial
term of this Agreement is twelve (12) months from the Effective Date.  Unless earlier terminated, this Agreement
shall thereafter automatically renew on each anniversary of the Effective Date
for an additional twelve (12) month term.


 


14.2                           Either party
may terminate this Agreement, at any time, with or without cause, upon ninety
(90) days advance written notice to the other.


 


14.3                           Notwithstanding
anything in this Agreement to the contrary, this Agreement may be canceled and
terminated by UTSTARCOM immediately upon written notice to DISTRIBUTOR upon the
occurrence of any of the following:


 


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(a)                                  In the event
of the breach of any of the terms or conditions of this Agreement by
DISTRIBUTOR, and the breach is not cured within thirty (30) days after written
notice thereof; or


 


(b)                                 Upon the
commencement by or against DISTRIBUTOR of insolvency, receivership or
bankruptcy proceedings or any other proceedings for the settlement of
DISTRIBUTOR’s debts, or upon DISTRIBUTOR making an assignment for the benefit
of creditors, or upon commencement of any act or action concerning
DISTRIBUTOR’s dissolution or liquidation.


 


14.4                           In the event
of termination of this Agreement, all rights hereunder shall terminate on the
effective date of such termination, except that:


 


(a)                                  UTSTARCOM will
make shipment against DISTRIBUTOR’s then-outstanding purchase orders provided DISTRIBUTOR
has paid 50% in advance and a valid letter of credit is still in place, and
DISTRIBUTOR shall pay UTSTARCOM for all such purchase orders in accordance with
this Agreement;


 


(b)                                 DISTRIBUTOR
shall have the limited right to sell any Products in its possession in
accordance with this Agreement;


 


(c)                                  The
termination of this Agreement shall in no way relieve either party from its
obligation to pay the other any sums accrued hereunder prior to such
termination; and


 


(d)                                 The
obligations of Sections 6.8 and 8 through 15 shall survive termination of this
Agreement.


 


15.                               General


 


15.1                           The
relationship of the parties under this Agreement shall be and at all times
shall remain one of independent contractors. 
DISTRIBUTOR is not a partner, agent, employee or legal representative of
UTSTARCOM and DISTRIBUTOR will take no action which has the effect of creating
an appearance of its having authority to do so. 
DISTRIBUTOR shall have no authority to bind UTSTARCOM to any agreement
or commitment of any kind.


 


15.2                           UTSTARCOM
SHALL NOT BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES.  UTSTARCOM’s aggregate liability under any and
all claims arising out of this Agreement shall in no event exceed [***].  This Section 15.2 is separate and independent
of any warranties made by UTSTARCOM, and is intended to be effective
notwithstanding the failure of essential purpose of any remedy related to such
warranties.


 


15.3                           DISTRIBUTOR
will not disclose, publish or otherwise reveal the content of this Agreement to
any third party without UTSTARCOM’s prior express written consent.


 


15.4                           If any
provision herein is held to be invalid, illegal or unenforceable for any
reason, such invalidity, illegality or unenforceability shall be severed, but
without in any way affecting the remainder of such provision or any other
provision contained herein, all of which shall continue in full force and
effect.  Either party’s waiver of any
breach or default by the other party shall not constitute a waiver of any
different or subsequent breach or default.


 


15.5                           Neither party
shall be liable for failure to perform or delay in performing any obligation
(other than payment of money) under this Agreement if such failure or delay is
due to fire, flood, earthquake, strike, labor trouble or other industrial
disturbance, war, embargo,


 


7
















 


blockage, shortage of labor, materials or
equipment, legal prohibition, governmental action, riot, insurrection, damage,
destruction or any other cause beyond the control of such defaulting party
preventing or delaying the performance.


 


15.6                           All notices,
requests, consents and other communications which are required or permitted
under this Agreement shall be in writing, and shall be delivered personally or
mailed by certified or registered mail, postage prepaid, return receipt
requested (in which case it shall be deemed given three (3) days after
mailing), or sent by facsimile, with a confirmation copy simultaneously mailed
(in which case it shall be deemed given when transmitted), at the addresses set
forth on the signature page or to such other address as to which any party
hereto may notify the other parties hereto as aforesaid.


 


15.7                           This Agreement
and all acts and transactions pursuant hereto and the rights and obligations of
the parties hereto shall be governed, construed and interpreted in accordance
with the internal laws of the State of California without application of
conflict of laws principles.  This
Agreement shall not be governed by the United Nations Convention on the
International Sale of Goods.  The parties
hereto consent to the jurisdiction of any court located in Alameda County,
State of California and waive any objection to such venue.  Should any action, suit or other proceeding
become necessary to enforce any of the terms and conditions set forth herein,
the prevailing party shall recover all expenses incurred, including attorney’s
fees, in connection with such action, suit or other proceeding.


 


15.8                           DISTRIBUTOR
may not transfer the rights or delegate the duties provided for under the terms
of this Agreement without the prior written consent of UTSTARCOM, which consent
UTSTARCOM may withhold in the exercise of its absolute discretion.


 


15.9                           DISTRIBUTOR
acknowledges that the Products are subject to laws and regulations in the
United States and the Territory which govern the export of commodities and
technology, and agrees not to export the Products from, or import the Products
into, any jurisdiction except in compliance with the laws and regulations of such
jurisdiction and of the United States.


 


15.10                     This Agreement
and the pricing and pricing provisions set forth in the International Price
List as issued by UTSTARCOM from time to time during the term hereof and then
in effect, constitute the entire agreement between UTSTARCOM and DISTRIBUTOR
concerning the subject matter hereof, supersedes all prior and contemporaneous
communications or agreements, written or oral, and is intended by the parties
to be a complete and exclusive statement of the terms of the agreement between
them.  This Agreement may only be
modified by a writing signed by authorized representatives of both parties.


 


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EXHIBIT B—PRODUCTS
AND DISCOUNTS


 


[***]


 


9