Exhibit
10.90


 


Confidential Treatment Requested - 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.


 


AGREEMENT


 


This Equipment Purchase Agreement
is entered into at Hyderabad on this, the 4th
day of February, 2003;


 


By and
between


 


 


Tata Teleservices Limited,
a company incorporated under the provisions of the Companies Act 1956, and
having its registered office at Jeevan Bharati, 10th Floor, Tower-I,
124, Connaught Circus, New Delhi- 110001, India and corporate office at 5-9-62,
Khan Lateef Khan Estate, Fateh Maidan Road, Hyderabad- 500 001, India
hereinafter referred to as “TTL”
the expression which unless repugnant to the context herein shall mean and
include its successors in business of the One Part;


 


AND


 


UTStarcom Inc. (UTSI),
a company having its registered office at....
hereinafter referred to as “UTSI”
the expression which, unless repugnant to the context herein shall mean and
include its successors in business of the Other
Part;


 












 








 


TABLE OF
CONTENTS


 


	
  1.

  	
  DEFINITIONS

  
	
  2.

  	
  SCOPE OF WORK

  
	
  3.

  	
  TERM

  
	
  4.

  	
  DELIVERY, PRICE AND PAYMENT TERMS

  
	
  5.

  	
  [***]

  
	
  6.

  	
  DELIVERY TERMS AND SCHEDULE

  
	
  7.

  	
  INSPECTION, TESTING AND ACCEPTANCE

  
	
  8.

  	
  ACCEPTANCE

  
	
  9.

  	
  LICENSES

  
	
  10.

  	
  TITLE AND RISK

  
	
  11.

  	
  WARRANTY

  
	
  12.

  	
  PROPRIETARY
  RIGHTS AND RIGHTS TO SOFTWARE

  
	
  13.

  	
  PATENT AND COPYRIGHT
  INFRINGEMENT

  
	
  14.

  	
  EXPORT, RE-EXPORT AND TRANSFER CONTROLS

  
	
  15.

  	
  LIMITATION
  OF LIABILITY

  
	
  16.

  	
  PROPRIETARY
  INFORMATION

  
	
  17.

  	
  TERMINATION

  
	
  18.

  	
  LAWS
  AND REGULATIONS

  
	
  19.

  	
  DISPUTES
  RESOLUTION AND ARBITRATION

  
	
  20.

  	
  FORCE MAJEURE

  
	
  21.

  	
  ENTIRE
  UNDERSTANDING

  
	
  22.

  	
  OUT OF WARRANTY
  MAINTENANCE ASSISTANCE AND TECHNICAL SUPPORT

  
	
  23.

  	
  COMPLIANCE
  WITH LAWS

  
	
  24.

  	
  CHANGES

  
	
  25.

  	
  GENERAL PROVISIONS

  
	
   

  	
   

  
	
  Schedules

  
	
   

  	
   

  
	
  Schedule
  -A:

  	
  Responsibility
  Assignment Matrix

  
	
   

  	
   

  
	
  Schedule
  -B:

  	
  Price

  
	
   

  	
   

  
	
  Schedule -C:

  	
  Software License

  
	
   

  	
   

  
	
  Schedule -D:

  	
  Non Disclosure Agreement

  
	
   

  	
   

  
	
  Schedule -E:

  	
  Product Description

  
	
   

  	
   

  
	
  Schedule
  -F:

  	
  Acceptance
  Test Procedure

  
			



 


2

















 


1.             DEFINITIONS


 


For the purpose of this Order, the terms below shall have the following
definitions:


 


“Acceptance”


 


“Acceptance” means successful completion of tests of the
Equipment/Element performed by UTSI and/or TTL in accordance with the
Acceptance Test procedure listed in the Schedule F (Acceptance Test
Procedure).  In the event that the
Acceptance Tests of any Equipment/Element have not been completed within [***]
days after the Shipment due to reasons solely attributable to TTL then such
Equipment/Element shall be deemed to have achieved Acceptance on the expiry of
such [***] day period (“Deemed Acceptance”).


 


“Acceptance Testing”


 


“Acceptance Testing” means that the Equipment has been installed,
commissioned and integrated, within the quality parameters and the mutually
agreed specifications have been met. 
These tests shall have to be carried out, by UTSI jointly with TTL or by
TTL as applicable.  On successful
Acceptance, TTL shall issue a Certificate of Acceptance, in case the agreed
tests are successfully completed, no later than [***] days of completion of
said tests.  In the event of Deemed
Acceptance, UTSI shall intimate TTL of the same in writing.


 


“Commercial Service”


 


“Commercial Service” means the earliest date when any of TTL’s
subscribers or customers begin to use the Product.  Commercial Service shall exclude trial runs, soft launch or any
other such similar use the period of which shall not exceed [***] days.


 


“Documentation”


 


“Documentation” means all user manuals, training manuals, Software
release notes, and other similar, written materials in English provided with
the System, as may be updated by UTSI from time to time.


 


“Delivery”


 


“Delivery” shall mean Shipment as defined in this Agreement either on
USD FCA basis or INR DDP basis (as defined in this Agreement).


 


“Effective Date”


 


“Effective Date” means the date by which duly authorized officers of
both Parties have signed this Agreement.


 


“Equipment/ Element” shall
mean the Hardware, the Licensed Material, and parts thereof including cables,
and spares, as ordered to be supplied to TTL. 
The same shall mean and include the following


 


3

















 


network elements, contained in, in whole or part, [***] and its
associated elements as per Schedule E (Product
Description) attached hereto which on stand-alone basis is capable
of being tested, commissioned and integrated into a Sub-Network or Network and
is able to be deployed for Commercial Service.


 


“Non-Disclosure Agreement”


 


“Non-Disclosure Agreement” means the Mutual Non-Disclosure and
Confidentiality Agreement between the Parties. “Equipment/Element” – Schedule
D.


 


“Party”


 


“Party” shall mean either Tata Teleservices Limited (“TTL”) having its
Corporate office at K.L.K Estate, Fateh Maidan Rd, Hyderabad 500001 registered
under or the UTSTARCOM Inc (“UTSI”) having its corporate office at 1275, Harbor
Bay Parkway, Alameda; CA 94502 USA. 
Together TTL and UTSI are referred to as “Parties”.


 


“Product”


 


“Product” means collectively all hardware and software components and
subsystems provided by UTSI as more fully described in Schedule E (Product Description) attached hereto.


 


UTSI “Shipment”


 


Shall mean the date of delivery of Products, in whole or part, as
applicable, under an Order to the TTL nominated freight forwarder/carrier or
the Carrier evidenced by the airwaybill date, for such Orders where the
delivery Terms are on FCA basis.


 


In the event the delivery Terms under the Order are on INR DDP basis,
then Shipment shall mean the date of delivery of the Products, in whole or
part, as applicable, under such Order, to the TTL nominated warehouse in India,
evidenced by the delivery challan date.


 


“Software”


 


“Software” means the executable (object code) version of software as
developed by and/or licensed to UTSI for use in the Product.


 


“Software License Agreement”


 


“Software License Agreement” means the Software License Agreement
between the Parties.


 


“Warranty Period”


 


“Warranty Period” means- a period equal to [***] months starting on the
date of Shipment or a period [***] from the date of Acceptance of the
Equipment/ Element which ever expires later.


 


4

















 


2.             SCOPE OF WORK


 


This Agreement shall govern Purchase Orders (the “Order”) submitted by
TTL to UTSI for the supply by UTSI of [***] Products in accordance with the
specifications, in the identified areas in the territory of [***] for the
purposes of enabling provision of Basic Telecom Services and Value Added
Services by TTL (“Network”).  Detailed
scope of work should be read in conjunction with the Responsibility Assignment
Matrix as attached herein in Schedule A.


 


In the event that Purchase Orders are placed for any Products not
included in the Schedule E then, both Parties may agree that this
Agreement shall govern those as well and such Products shall be added to the
Schedule E at that time.


 


3.             TERM


 


The term of this Order shall commence on the Effective Date and unless
otherwise terminated as provided herein, shall continue in full force and
effect for a period of [***]and may be extended upon mutual agreement.  During this time, TTL and UTSI may
re-negotiate prices and commercial terms as may be required from time to time


 


4.             DELIVERY,
PRICE AND PAYMENT TERMS


 


4.1           Pricing
and Shipment


 


Prices for the Product and Services purchased and/or licensed hereunder
shall be as described in Schedule B
(Price) to this Agreement which shall be either on USD FCA or INR
DDP basis (Incoterms 2000) (the “Prices”) based on mutual agreement.


 


Prices, (where the Delivery Terms are on FCA basis) for the supply of
the Product are in U.S. Dollars, (FCA, Shanghai, China for Equipment/element)
and in U.S. Dollars, (FCA, JFK, USA for Software). (Incoterms 2000).


 


For export of Equipment/Element, on FCA basis, Delivery shall be FCA,
Shanghai, China facility of the carrier designated by TTL in the Order, or in
the absence of such designation, the carrier designated by UTSI (the “Carrier”)
in accordance with the above mentioned Incoterms 2000.


 


4.2           Taxes,
Duties and Levies


 


For export from China/USA on FCA basis, the Prices [***] which may be
levied or charged in India, however, any [***] shall be solely to [***].  Any such amounts charged, levied or
assessed, whether withheld at source or otherwise, will be added to the prices
otherwise chargeable to and payable by [***] pursuant to this Agreement only
for future Orders and for Orders executed after the imposition of fresh tax
that lead to more amount of taxes being imposed.


 


However, if any taxes on income are required by law to be deducted from
any payment required to be made by TTL to UTSI hereunder, the amount of such
payment shall be deducted as per Government Of India regulations and relevant
TDS certificates will be issued to UTSI and payment shall be made to UTSI net
of such amount.


 


5

















 


For Shipments made on DDP basis, the Prices shall include [***] (as
applicable).  [***]


 


4.3           Form
of Payment


 


Payments for Products and Services shall be made in U.S. Dollars via
wire transfer for Orders placed on FCA basis and in India Rupees for Orders
placed on DDP basis.


 


First Installment —
[***] of the Order value shall be payable upon Acceptance or [***] days from
Shipment against each Order or part thereof, prorated for shipment, whichever
is earlier, provided delay in Acceptance is not on account of UTSI (in which
case payment of First Installment shall be at Acceptance irrespective of [***]
days).


 


Second Installment
— For FCA USD Orders — Remaining [***] of the Order value, shall be payable not
later than [***] months from the due date of the First Installment, or shall be
due on the [***] day of the Shipment whichever is earlier, provided delay in
Acceptance is not on account of UTSI (in which case payment of Second
Installment shall be at Acceptance irrespective of [***] days).


 


Second Installment
— For INR DDP Orders — Remaining [***] of the Order value, shall be payable at
the expiry of [***] months from the due date of the First Installment, provided
delay in Acceptance is not on account of UTSI (in which case payment of Second
Installment shall be at [***] months from Acceptance irrespective of [***]
days).


 


4.4           When
payment of any part of the Order becomes due to UTSI in accordance with the
provisions of this Clause 4, the UTSI shall forward to TTL an appropriate
invoice (Invoice) which shall specify a full description of each item of the
Equipment/ Element, Software or Service delivered, together with the following
documents:


 


For drawing payment due on Delivery of Equipment/Element/Software:


 


Acceptance of the Purchase Order and copies of:


 


i)                 Packing List


 


ii)              Airway Bill/Delivery
Challan (as pplicable)


 


iii)           Certificate of Origin
(as applicable)


 


iv)          Manufacturer’s Test
Report/Factory Acceptance Test Report as per agreed quality acceptance plan.


 


v)             Acceptance
Certificate by TTL on completion of Acceptance Tests or notification of Deemed
Acceptance


 


vi)          A statement by the
Contractor for subsequent performance of the Equipment as per the
Specifications and standards prescribed in this Agreement.


 


6

















 


Payment for the associated Software
against each Equipment/Element so invoiced shall be payable against the
submission of the relevant documents as described above.


 


4.5           In
the event of delayed payment for more than a period of [***] days after the
Invoice is payable and due, then UTSI may impose interest payable @ of [***] of
the invoice amount so delayed, pro-rated on a daily basis.  This rate shall apply for both INR and USD
Orders.


 


5.             [***]


 


[***]


 


6.             DELIVERY
TERMS AND SCHEDULE


 


6.1           The
Order will be delivered according to the schedule set forth in the applicable
Order..


 


6.2           Delivery
of any Product or part thereof originating outside of India will be FCA,
Shanghai, China or FCA, JFK, USA, as applicable (INCOTERMS 2000) and Delivery
of any Equipment originating within India will be the TTL designated warehouse
as specified in the applicable Order (“Delivery”).


 


6.3           Liquidated
Delay Damages


 


If
Shipment/Delivery of any Product or part thereof is delayed beyond the date
specified in the Order or as mutually agreed for such Shipment (“Delay”), due
to any cause which is attributable to UTSI other than Force Majeure (the
occurrence which shall be proved to the reasonable satisfaction of TTL in
writing), beyond the mutually agreed time frame (Delayed Portion), UTSI shall
be liable to pay Liquidated Damages to the tune of [***]


 


7.             INSPECTION,
TESTING AND ACCEPTANCE


 


UTSI shall perform a structured testing programme in accordance with
the provisions of Schedule F which shall be sufficient to demonstrate to
the satisfaction of TTL that the Equipment, or any Element meet the
requirements of the Agreement and to achieve all Acceptances of the
Element.  Such testing shall comprise
off-site tests and on-site Acceptance tests to achieve Acceptance.  The Acceptance Test Plan shall be proposed
by UTSI and shall be reviewed and approved by TTL.  Same is detailed in Schedule E.


 


Testing
at UTSI’s factory (“Factory Acceptance Testing”)


 


7.1.1        The
purpose of Factory Acceptance Testing is to verify that the Equipment/Element
production is satisfactory and that the Equipment/Element is ready to be
shipped to TTL.


 


7.1.2        UTSI
shall perform Factory Acceptance Testing in accordance with the test Plan of
UTSI prior to Shipment.


 


7

















 


7.1.3        TTL
shall have the right to witness Factory Acceptance Testing.  An inspection plan will be agreed to by UTSI
and TTL so as to minimise disruption to UTSI’s activities and overall project
schedule.


 


7.1.4        TTL
may witness the production and testing procedures in general to verify that
UTSI is deploying all quality controls to deliver the Equipment/Element
conforming to specifications and standards specified in the Agreement.  TTL shall bear all the costs and expenses
including travelling, boarding, lodging expenses and out of pocket expenses in
respect of such personnel sent to witness such testing.


 


7.1.5        Notwithstanding
the fact that TTL has witnessed Factory Acceptance Testing or not, the UTSI
shall provide to TTL the Factory Acceptance Test Results and will make best to
provide the same in [***] days of the completion of such testing.


 


7.1.6        No
test or examination of any of the Equipment/Element whether witnessed, agreed
or otherwise organised or carried out by TTL shall release UTSI from its
obligation to carry out the On-Site Tests or to perform any of its other
obligations as set out in and in accordance with the provisions of the
Agreements.


 


7.2           Installation,
Commissioning and Acceptance Testing on Site


 


7.2.1        The
purpose of the Element Acceptance Tests at site is to show that the Equipment/
Element meets the Specifications and technical requirements and is ready to be
integrated into the Sub-Network or Network as the case may be.


 


7.2.2        Acceptance
Tests are performed in accordance with Schedule F as agreed to in this
Agreement.  An Acceptance Report will be
compiled for each of the Equipment/Element accepted as the case may be.


 


7.2.3        Equipment/Element
Acceptance is based on tests defined in the Acceptance Test Procedures.  The criteria for passing these tests are
that all major diagnostic test results with “All Tests Pass (ATP)” and
realization of features/functionalities.


 


7.2.4        In
case of any errors or faults during testing that affect Commercial Service to
customers (Severity 1), the Acceptance Certificate shall not be
issued.  In case of only minor errors or
faults that do not affect Commercial Service the Acceptance Certificate with
punch list of issues to be resolved shall be issued by TTL within [***] days of
completion of such tests.  UTSI and TTL
shall jointly agree on the time frame within which these issues are to be
resolved.


 


7.2.5        UTSI
shall provide, no less than [***] days prior to commencement of Tests, for
TTL’s review and approval the following:


 


•                  A
schedule of detailed test Procedures to be performed as per Schedule F;
and


 


•                  Documentation,
in form and substance reasonably satisfactory to TTL, of testing to verify the
technical and performance requirements of the Element,.  TTL has the right to seek performance of
additional Tests as mutually agreed.


 


8

















 


7.2.6        On
TTL’s review and written approval, the above documentation shall, as from the
date of such written approval, be deemed to have become a part of this
Agreement and this Agreement shall thenceforth be interpreted and construed
accordingly.


 


7.2.7        After
completion of Installation of each site, TTL shall perform on-site
Acceptance Tests of the Equipment/Element thereat in accordance with the test
specifications.


 


7.2.8        Within
[***] days of the completion of the relevant Acceptance Tests TTL shall either
inform UTSI of the failure of the Acceptance Tests in accordance with terms
herein or issue UTSI with a dated certificate of Acceptance in respect of the
Element/Equipment in accordance with 7.2.4.


 


7.2.9        If
any aspect of the Element (as the case may be) fails to pass the Acceptance
Tests, then:


 


a)              the failure of the
Element to pass the Acceptance Tests shall be notified in writing to the UTSI
by TTL, giving reasons for such failure, within [***]days of the completion of
the relevant tests; and


 


b)             the UTSI shall
forthwith implement at its own cost and expense such alterations or
modifications to the Element as are necessary and in any case, within [***]
working days or any longer period mutually agreed upon to enable the relevant
Acceptance Test to be repeated; and


 


c)              The UTSI shall
repeat the Acceptance Tests so as to achieve Acceptance; and


 


d)             TTL may, at its
option, carry out such alterations or modifications at UTSI’s cost (as is
commercially reasonable under the circumstances) so as to achieve Acceptance.


 


7.2.10      Notwithstanding
any provision to the contrary contained in the corresponding Order, TTL shall
have the right to remedies or material damages as specified in the Certificate
of Contractual Compliance.


 


8.             ACCEPTANCE


 


Acceptance tests shall be performed by UTSI or and TTL as the case
maybe in accordance with the Acceptance Test procedure to be provided by UTSI
and approved by the TTL prior to the commencement of the tests.  TTL undertakes and agrees to ensure that
there will be no delay in the commencement or performance of the Acceptance by
any act or omission of the TTL or any of TTL’s employees, agents or
representatives.


 


9.             LICENSES


 


UTSI hereby grants TTL a non-exclusive, non-transferable license to use
the Software and the Documentation solely in connection with the Products
purchased by TTL pursuant to this Agreement, at the Site(s) and for the purpose
and in the manner for which the Product was designed


 


9

















 


and intended by UTSI, all in accordance with the software license
provisions set forth in Schedule C
attached hereto.  In no event shall TTL
have the right to market, sell, lease, license, sublicense, assign, distribute
or otherwise transfer said license or any part thereof without the express
prior written consent of UTSI except in the event of a sale (in part or whole),
merger, strategic alliance or business arrangement of any kind wherein TTL
ceases to do business in it’s own name and a new entity takes over the business
and the Equipment.  TTL shall not remove
nor alter, nor permit the removal or alteration of, any UTSI or third-party
trademarks, copyright notices, tags, labels or other identifying markings
placed on any Products, products, packages or containers provided hereunder
without the prior written consent of UTSI.


 


10.          TITLE AND RISK


 


Title to the Product and Risk of loss to the Product shall pass to TTL
in accordance with Incoterms 2000 at the FCA Shanghai, China or FCA JFK, USA as
applicable where the Orders are on FCA basis. 
For Shipments on DDP basis Title to the Product and Risk of loss to the
Product shall pass to TTL in accordance with Incoterms 2000 at the TTL
designated warehouse specified in the Order.


 


11.          WARRANTY


 


11.1         Subject
to the terms and conditions hereof, UTSI warrants the Products manufactured by
UTSI and provided to TTL pursuant to this Order, working as separate items and
within configurations disclosed in writing to UTSI by TTL, against defects in
material, workmanship and design that materially affect its performance
(“Defects”) for the following periods (“Warranty Period(s)”), respectively:


 


Equipment and Software for a period of [***] months from the date of
Shipment or [***] months from the date of Acceptance of the said Equipment,
whichever expires later, operating in configurations contemplated by the
Parties, against defects its performance in accordance with the specifications
(Defects), which ever is later UTSI will promptly effect the repair or
replacement of any equipment delivered hereunder by UTSI that demonstrates,
during such Warranty Period, to have a Defect.


 


11.2         Warranty
of Good Title


 


UTSI will deliver good title to all equipment provided under this
Agreement (including any additional purchases), free from any and all liens,
claims or encumbrances.


 


11.3         Conformity
to Specifications


 


UTSI warrants that during the Warranty Period all equipment will
conform to and perform according to the specifications.  The UTSI warrants that the Equipment will be
new and unused (except for equipment used for testing required under the
Agreement/ Order) when delivered and, subject to the provisions of this
Clause 7, will be free from defects in materials and workmanship and will
function substantially (excluding minor non-service affecting) in
accordance with the applicable Specification during the Warranty Period.


 


10

















 


11.4         Warranty
and Replacement Parts


 


UTSI warrants, on the same terms as those set forth above with respect
to the repaired or replacement Field Replacement Unit (“FRU”) for [***] months
from Delivery to FCA point or up to the term of the original warranty of the
part that is being replaced, whichever is longer.  UTSI shall also bear all costs including duties, taxes,
transportation costs, transit insurance premium and other associated costs
(including de-installation and re-installation) while sending out
defective parts and receiving repaired/replaced parts.


 


11.5         Ownership
of Replaced Parts


 


Except as provided elsewhere in this Agreement, FRUs replaced by UTSI
will become the property of UTSI.  FRUs
delivered as replacement by UTSI will remain the property of TTL.


 


11.6         Pass
Through of Warranties


 


UTSI will, to the extent possible, make available to TTL the benefit of
any warranties or similar rights on any equipment or part thereof produced by
third Parties which equipment is integrated in items.


 


11.7         Warranty
Claim Procedures


 


The limited warranties set forth in Clause 11 are subject to TTL’s
written notification, rendered during the warranty periods defined herein, to
UTSI of an alleged Defect.  UTSI will
repair, replace, amend, or alter in accordance with UTSI’s standard practices
with respect to such equipment.


 


11.8         Disclaimer


 


EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, UTSI NEITHER MAKES
NOR ASSUMES ANY LIABILITY UNDER ANY WARRANTIES (WHETHER IMPLIED OR PURSUANT TO
STATUTE OR COMMON LAW) ON OR WITH RESPECT TO EQUIPMENT PROVIDED HEREUNDER OR
ANY COMPONENT THEREOF, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED CONDITIONS OR
WARRANTIES OF MERCHANTABILITY. 
Performance by UTSI of the warranty services described in this Clause 11
will constitute fulfillment of all of UTSI’s obligations in respect of the
warranties contained in this Clause 11, whether based on contract, or
otherwise with respect to the equipment delivered to TTL hereunder.


 


12.          PROPRIETARY
RIGHTS AND RIGHTS TO SOFTWARE


 


12.1         Subject
to this Agreement, UTSI grants to TTL non-exclusive, non-transferable rights to
use the Software (as defined below) for TTL’s use solely in conjunction with
the UTSI Equipment.  The rights granted
herein shall be for use of the Software in object code format only and solely
as provided in Section 12.1.2 below.


 


12.1.1      TTL
acknowledges that any software supplied by UTSI and TTL hereunder (“Software”)
is subject to the proprietary rights of UTSI and/or UTSI’ vendor(s).  UTSI or its vendor(s), as the case may be,
will retain title to all of the Software. 
Subject to performance by TTL of these Terms and Conditions, UTSI hereby
grants to TTL and TTL hereby accepts from UTSI the limited, nontransferable,
nonexclusive rights (subject to Article 9 above) to use the Software
solely


 


11

















 


in the
operation of UTSI Equipment purchased hereunder, to commence on Delivery of the
Software to TTL and payment therefor by TTL and to last for the life of the
Equipment purchased hereunder.


 


12.1.2      Except
as permitted by this section, TTL will not (i) copy or duplicate, or
permit anyone else to copy or duplicate, any part of the Software, or
(ii) create or attempt to create, or permit others to create or attempt to
create, by reverse engineering or otherwise, the source programs or any part
thereof from the object programs or from other information made available under
this Order (except as permitted by law). 
TTL may (at its own expense) make two copies of the object program for
archive purposes.


 


12.1.3      TTL
will not, directly or indirectly, sell, transfer, offer, disclose, rent, lease
(as lessor), or license the Software to any third party, except that subject to
these Terms and Conditions, and subject to Article 9 above, TTL may
transfer its rights to use the Software to a third party purchaser, lessee or
user of the Equipment purchased hereunder the right solely to use the software
in the operation of the Equipment purchased hereunder.


 


12.1.4      UTSI
will provide free of cost any software defect fixes during the warranty period.


 


12.1.5      Software
Upgrades shall be provided, for a period of [***] years provided TTL buys
extended warranty/AMC services.


 


13.          PATENT AND COPYRIGHT INFRINGEMENT


 


13.1         Defense
of Claims


 


UTSI agrees (i) to resist or defend at its own expense any claim
for royalty payments or for equitable relief or damages against TTL based on an
allegation that the manufacture of any Item or combination of Items delivered
hereunder or the use (but only in accordance with documentation provided by UTSI),
lease, or sale thereof or that any documentation delivered by UTSI hereunder
infringes any patent or copyright, (ii) to pay any royalties and other
costs related to the settlement of such request and (iii) to pay the costs
and damages, including attorney’s fees and litigation costs, finally awarded as
the result of any suit based on such claim, provided that UTSI will not be
liable for such damages to the extent resulting from the failure of TTL to
notify UTSI promptly of any such claim or from TTL’s failure to provide
reasonable assistance or information requested in writing by UTSI in connection
with the defense of any such claim.


 


13.2         Indemnity
Against Injunctions


 


In the event that, as a result of any suit for patent or copyright
infringement (i) prior to Delivery, the manufacture of any item supplied
by UTSI hereunder is enjoined, or (ii) after Delivery, the use, lease or
sale thereof is enjoined, then UTSI will, at its option and expense, either
(a) negotiate a license or other agreement with the plaintiff so that such
Item is no longer infringing, (b) modify such item suitably or substitute
a suitable item therefor, which modified or substituted item is not subject to
such injunction, and to extend the provisions of this Clause thereto, or if (a)
or (b) cannot be effected by UTSI’ reasonable and diligent efforts,
(c) repurchase enjoined Items at their then current value on TTL’s audited
accounts.


 


12

















 


UTSI will indemnify TTL to such extent from any and all damages and
costs (including settlement costs agreed to by TTL and UTSI) finally awarded or
so agreed upon for infringement of any patent or copyright in any suit
resulting from Other Claims, and from reasonable expenses incurred by TTL in
defense of such suit if UTSI does not undertake the defense thereof within a
reasonable period.


 


13.3         Cross
Indemnity


 


Notwithstanding the above, UTSI will not be liable for any damages or
costs resulting from claims to the extent that any of the following constitutes
either direct or contributory infringement of any patent (such claims being
collectively referred to herein as “Other Claims”):


 


i)                                         UTSI’
compliance with TTL’s specific Equipment or Software design instructions;


 


ii)                                      the
use of any item in combination with products other than those that are part of
the Network equipment; or


 


iii)                                   a
manufacturing or other process carried out by or through TTL and utilizing any
item.


 


TTL will indemnify UTSI to such extent from any and all damages and
costs (including settlement costs agreed to by TTL and UTSI) finally awarded or
so agreed upon for infringement of any patent or copyright in any suit
resulting from Other Claims, and from reasonable expenses incurred by UTSI in
defense of such suit including attorneys’ fees if TTL does not undertake the
defense thereof.


 


14.          EXPORT, RE-EXPORT
AND TRANSFER CONTROLS


 


TTL hereby acknowledges that the Equipment and technology or direct
products thereof (hereafter referred to as “Products and Technology”), supplied
by UTSI hereunder are subject to export controls under the laws and regulations
of the United States and Japan.  TTL
shall comply with such laws and regulations and agrees not to export, re-export
or transfer UTSI Products and Technology without first obtaining all required
United States and Japanese Government authorizations or licenses.  UTSI and TTL each agree to provide the other
such information and assistance as may reasonably be required by the other in
connection with securing such authorizations or licenses, and to take timely
action to obtain all required support documents.


 


End-Use/User: TTL hereby certifies that none of the Products and
Technology supplied by UTSI to TTL hereunder will be exported, re-exported, or
otherwise transferred by TTL: A) to a United States or Japan embargoed or
highly restricted destination,; B) for use by or for any military
end-user, or in any military end-use located in or operating under the
authority of any country; C) to any entity that is engaged in the design,
development, production, stockpile or use of nuclear, biological or chemical
weapons or missiles; D) to Parties without first obtaining all required
United States or Japanese Government authorizations or licenses. TTL’s
obligation under this clause shall survive the expiration or termination of
these Terms and Conditions.


 


13

















 


15.          LIMITATION
OF LIABILITY


 


Notwithstanding any other clause in this Agreement, in no event will
UTSI be liable for [***]


 


Notwithstanding any other clause in this Agreement, the remedies of TTL
and UTS set forth herein are exclusive and the liability of UTS for a breach of
UTS’ obligations with respect to the Equipment (including warranty obligations)
shall be limited [***]


 


16.          PROPRIETARY
INFORMATION


 


16.1         UTSI
and TTL, to the extent of their contractual and lawful right to do so, will
exchange proprietary or confidential information as reasonably necessary for
each to perform its obligations hereunder. 
All information relating to these Terms and Conditions and any Purchase
Orders accepted hereunder provided by either party to the other, whether oral
or written and all software will be and is hereby deemed to be confidential and
proprietary information (“Proprietary Information”).


 


16.2         Except
as set forth in Section 15.3 below, a party receiving Proprietary
Information pursuant hereto (the “Receiving Party,” which shall include the
final end user customers) will not, without the prior written consent of the
party disclosing such information (the “Disclosing Party”), (i) use any
portion of the Proprietary Information for any purpose other than the purpose
of these Terms and Conditions, or (ii) disclose any portion of the
Proprietary Information to any person or entities other than the employees and
consultants of the Receiving Party (and UTSI’ subcontractors) who reasonably
need to have access to the Proprietary Information in connection with the
purposes of these Terms and Conditions and who have agreed to protect
Proprietary Information as though they were a party to these Terms and
Conditions.


 


16.3         A
Receiving Party will not be liable for disclosure of Proprietary Information,
or part thereof, if the Receiving Party can demonstrate that such Proprietary
Information (i) was in the public domain at the time it was received or
subsequently entered the public domain through no fault of the Receiving Party;
(ii) was known to or is in the lawful possession of the Receiving Party at
the time of receipt; or (iii) is disclosed more than [***] years, except
[***] years for software, after the date of receipt of the particular
Proprietary Information by the Receiving Party.  In the event of any legal action or proceeding or asserted legal
requirement for disclosure of Proprietary Information furnished hereunder, the
Receiving Party will promptly notify the Disclosing Party and, upon the request
and at the expense of the Disclosing Party, will cooperate with the Disclosing
Party in lawfully contesting such disclosure. 
Except in connection with any failure to discharge its responsibilities
under the preceding sentence, the Receiving Party will not be liable for any
disclosure pursuant to court order.


 


16.4         Proprietary
Information will remain the property of the Disclosing Party and will, at the
Disclosing Party’s request and after it is no longer needed for the purposes of
these Terms and Conditions, promptly be returned thereto or be destroyed,
together with all copies made by the Receiving Party and by anyone to whom such
Proprietary Information has been made available by the Receiving Party in
accordance with the provisions of this section.


 


14

















 


17.          TERMINATION


 


This Agreement may be terminated by either party:


 


a)                                      if
the other party is in material breach of this Agreement and fails to cure such
breach within [***] days of receiving written notice of the breach.  Provided that the breaching party continues
to make diligent and good faith efforts to cure the breach, the breaching party
shall be granted a reasonable extension of time to cure the breach.


 


b)                                     upon
[***] days prior written notice if any of the following circumstances remain
uncured: (i)if the other party becomes insolvent or unable to pay its debts
 in the ordinary course of its business; (ii) if a voluntary or
involuntary petition under applicable bankruptcy laws is filed by or against
the other party; (iii) if a receiver is appointed for the business affairs
of the other party or the other party makes an assignment for the benefit of
creditors without permission of the other party; or (iv) if the other
party liquidates or ceases doing business as a going concern.


 


Any provision of this Agreement which by its nature survives
termination shall survive termination of this Agreement.


 


18.          LAWS AND
REGULATIONS


 


The validity, construction and performance of this Contract including
its enforcement shall be governed by and interpreted in accordance with the
laws of India.  Subject to
Article 19 (Dispute Resolution and Arbitration), the Parties agree to
submit themselves to the jurisdiction of Courts in Mumbai.


 


19.          DISPUTES
RESOLUTION AND ARBITRATION


 


19.1         If
any dispute, difference, controversies or claims of any kind whatsoever shall
arise between the Parties this Contract including any question regarding its
existence, validity or termination of the execution of the works, whether
before or after the termination, abandonment or breach of this Contract, the
Parties shall seek to resolve any such dispute or difference by mutual
consultation.  The Parties will make their
best endeavor to resolve disputes, differences, controversies or claims by
mutual consultation and deliberation within [***] days.  In case of failure, the issues will be
referred to the respective senior managements of the Parties.  They shall strive to resolve all such
disputes, differences, controversies, or claims within a further period of  [***] days.


 


19.2         If
the Parties fail to resolve such dispute or difference, controversy, or claim
by mutual consultation and also by reference to their respective CEOs, then
either Party may give the other, a formal notice in writing that the dispute,
difference, controversy, or claim exist specifying its nature, the point(s) in
issue and its intention to refer such disputes, differences, controversies, or
claims to arbitration under the Arbitration and Conciliation Act, 1996.


 


19.3         If
the Parties fail to resolve such disputes, differences, controversies, claims
by further consultation within a period of [***] days from the date upon which
such notice of disputes


 


15

















 


has been
given, the disputes, difference, controversies, claims shall be referred to and
finally settled by arbitration under the Arbitration and Conciliation Act,
1996.


 


19.4         It
is agreed between the Parties that each Party shall have the right to nominate
one arbitrator each, and the said two so nominated arbitrators shall appoint
the arbitrator who shall act as the Presiding Officer of the said Arbitral
Tribunal.  The aforementioned
arbitrators shall be professionally qualified to deal with the intricacies and
the technicalities of the disputes, differences, controversies, claims or any
other technical issues.


 


19.5         The
Parties agree to seek to mutually designate an independent technical expert in
the field to act as assist the Arbitral Tribunal, if so required.  If they fail to agree in [***] days, any
party can make an application to the Chief Justice of Mumbai High Court for
such appointment.


 


19.6         The
arbitration shall be held in Mumbai, India
or some other mutually agreed location and the arbitration proceedings shall be
conducted in the English language.  The
arbitrators will be requested to give their award in [***] days’ time.


 


19.7         The
award shall be final and binding on the Parties.


 


19.8         The
award shall be entered in any court having jurisdiction and any such court may
order enforcement of the award against the Parties and their respective
successors and permitted assignees.


 


19.9         Each
Party shall be responsible for it’s own costs during arbitration process such
as legal costs, travel and stay costs etc. only the inseparable costs of
arbitration such as arbitrator’s fees and venue expenses shall be borne equally
and jointly.


 


19.10       In
the course of arbitration, both Parties shall continue to execute this Contract
in so far, as is reasonably practical. 
This clause shall survive termination of this Contract.


 


20.          FORCE MAJEURE


 


20.1         Any
obligation of any Party to this Order, other than obligations for the payment
of money, will be suspended during any period in which such Party is unable to
perform such obligation by reason of Force Majeure, but only to the extent and
for the duration of such inability to perform, and any applicable deadlines or
expiration dates will be extended or delayed by the duration of such
inability.  For the purposes hereof,
“Force Majeure” means war (including acts of terrorism and warlike acts, even
if no formal state of war has been declared), civil commotion, sabotage, fire,
flood, natural calamities, strikes and lockouts, Act of State or direction from
governmental authority requiring the suspension of work hereunder, epidemics or
quarantine or import or export restrictions (as are not limited to the
establishments and facilities of the Parties). 
A Party subject to a Force Majeure will promptly notify the other giving
details of the nature of the event and the expected period of its duration and
will take all reasonable steps to mitigate the effects thereof.


 


16

















 


20.2         When
the Force Majeure event ceases, the Parties are to resume their
responsibilities under the terms of this Agreement within [***] working days,
or, if the same is not possible within said time period, then as soon as
reasonably and commercially possible.


 


20.3         In
the event that a Force Majeure event materially frustrates this Agreement and
has prevented, or if the Parties reasonably expects such event to prevent,
timely performance hereunder for a period of more than [***] months, then the
Parties may temporarily take reasonable steps to mitigate its potential damage,
including procurement of equipment and software from such other sources as will
be satisfactory to meet requirements of this Agreement for the period of the
Force Majeure.  In the event that a Force
Majeure event materially frustrating this Agreement continues, or the Parties
are unable to perform due to a Force Majeure, for more than [***] months,
either Party may terminate this Order without further obligation by either
Party, provided, however, that any outstanding amounts due UTSI shall be paid
by TTL and UTSI shall undertake to use reasonable efforts to resell for the
account of TTL any unusable items returned by TTL to UTSI.


 


21.          ENTIRE
UNDERSTANDING


 


These Terms and Conditions supersede and replace any and all prior
agreements, understandings or arrangements, whether oral or written, heretofore
made between the Parties relating to the Order, and together with the Exhibits
attached hereto constitutes the entire understanding of the Parties with
respect to the Order.  These terms and
conditions contained in the Order may not be altered, interpreted or amended
except by an express written agreement or change order signed by both Parties
hereto.


 


22.          OUT
OF WARRANTY MAINTENANCE ASSISTANCE AND TECHNICAL SUPPORT


 


22.1         UTSI
agrees that it shall for the operational and commercial life of the product,
supplied hereunder, which in any case shall not be less than [***] years from
Delivery:


 


22.1.1      keep
available all necessary spare parts for the Equipment, provision of any such
spare parts on terms and conditions, including the prices, to be mutually
agreed upon in good faith; and


 


22.1.2      repair
any defective Equipment out of warranty on terms and conditions, including the
prices, to be agreed upon.


 


22.1.3      In
case of obsolescence, UTSI shall give a notice of not less than [***] days
prior to discontinuing any Equipment of the type purchased hereunder.


 


22.1.4      UTSI
shall submit to TTL a detailed proposal for Out of Warranty Technical
Assistance and Software Maintenance support. 
Subject to the above conditions, TTL may select and purchase additional
technical support for UTSI Equipment at mutually agreed prices.  The UTSI Material Return Center coordinates
repair services for UTSI-supplied equipment.  TTL must obtain a Return Material Authorization (RMA) number for
each FRU prior to returning the unit to UTSI. 
There will be no charge for repair of FRUs still covered by the original
warranty or by UTSI’ optional extended warranty services if TTL has elected such
extended warranty services.  Repaired


 


17

















 


modules
will be warranted for [***] days after Shipment or the remainder of the
original warranty period, whichever is greater.  TTL will enter into UTSI’ standard Technical Assistance and
Software Maintenance Support Agreement at prices to be mutually agreed.


 


23.          COMPLIANCE
WITH LAWS


 


Both Parties shall comply with respectively binding laws and provisions
of this Agreement and fully indemnify the other Party with regard to any
willful or otherwise non-compliance.


 


CHANGES


 


23.1         TTL
may request a reasonable number of quotations from UTSI for the costs of
potential changes to Specifications or scheduling requirements set forth in the
Schedule (“Change Request”).  UTSI will
promptly make such quotes to TTL and will negotiate those quotes with TTL in
good faith.  UTSI may, on its own
initiative, propose such changes by providing TTL with such a quotation, in
which event TTL will promptly respond to UTSI’ proposal.


 


23.2         If
any such Change Request causes an increase or decrease in the cost of, or the
time required for, performance, the Parties will equitably adjust the Price
and/or Delivery date, and will amend the Order in writing accordingly.  Any claim for adjustment by UTSI resulting
from a Change Request will be automatically waived unless asserted in writing
by UTSI (a “UTSI Claim”) within [***] days from the date of receipt by UTSI of
the Change Request.  UTSI will state the
amount of such adjustment claimed either as part of the UTSI Claim, or at such
later date (not to exceed [***] days from the date of receipt by UTSI of the
Change Request) as UTSI may request as part of such UTSI Claim.


 


23.3         The
personnel of each Party may from time to time render technical assistance or
give technical advice to, or effect an exchange of information with the
personnel of the other Party concerning the subject matter of this Order.  However, UTSI will not deviate from the
requirements of this Order by reason of such assistance, advice or exchange of
information, unless the deviation is incorporated into and authorized by a
Change Request issued in accordance with the clauses herein.  Such assistance, advice or exchange of
information, shall not delete or in any way modify any of the rights or
obligations of the Parties, express or implied.


 


24.          GENERAL
PROVISIONS


 


24.1         No
Liability for Other Party’s Acts


 


Neither party shall be liable for any losses, injuries, or damages
caused by or attributable to the acts and/or omissions of the other party, its
employees, or its agents.


 


24.2         Independent
Contractors


 


The Parties hereto agree that they are independent contractors.  This Agreement shall not be construed to
create or result in a partnership or joint venture between the Parties hereto,
nor to make either party the agent of the other party.  This Agreement shall not create any third
party beneficiary rights.


 


18

















 


24.3         Notices


 


Any notices, requests, demands or other communications required or
permitted under this Agreement shall be in writing and shall be sufficiently
communicated if delivered (i) in person or by means of a recognized
courier service or email with Delivery notice, (ii) sent by facsimile with
written confirmation sent by regular airmail, or (iii) if sent by
registered airmail, return receipt requested, to the recipient party at its
address appearing in the preamble hereof or to such other address as such party
may have designated for such purpose by notice previously given to the other
party in accordance with the terms hereof.


 


All email communication shall be deemed accepted if no notice of
“failure” or “return” is received.  All
emails must be acknowledged by the recipient within 2 working days of the
communication.


 


 


	
  If to UTSI:

  	
  Attention: Russell Boltwood, Legal Affairs

  
	
   

  	
   

  
	
   

  	
  1275 Harbor Bay Parkway

  Alameda, Ca. 94502 USA

  +1 510 864 8800 (Voice)

  l +1 510 864 8802 (Fax)

  
	
   

  	
   

  
	
  If to TTL:

  	
  Attention: A.G Rao

  
	
   

  	
   

  
	
   

  	
  G.M Corporate

  UG Floor, K.L.K Estate, Fateh Maidan Rd.

  Hyderabad - 500 001

  



 


Notices shall be deemed to have been received if delivered in person,
on the same day; if sent by facsimile, 24 hours after transmission; if
sent by registered mail, seven (7) days after deposit into the respective
national mail Product.


 


24.4         Security
Interest


 


UTSI reserves, and TTL hereby grants to UTSI, a security interest in
each Product purchased and licensed and in any proceeds thereof until UTSI has
received payment in full.  TTL agrees at
UTSI’s request to execute any and all financing statements and to take such
other action as UTSI may reasonably request to carry out the intent of this
section.


 


24.5         No
Assignment


 


Neither party may assign its rights and/or obligations, hereunder
without the prior written consent of the other party, which consent shall not
be unreasonably withheld, except in case where such assignment is pursuant to a
transfer of all or substantially all of business and assets, whether by merger,
sale of assets, sale of stock, or otherwise.


 


19

















 


24.6         Publicity


 


The substance and timing of any written or other public disclosure
relating to this Agreement, in the form of a press release or similar
disclosure shall be subject to the prior written approval of both Parties.


 


24.7         No
Violation of Applicable Law


 


If any provision of this Agreement is held to be invalid under any
applicable law, such provision shall be ineffective to the extent of such
violation without invalidating other provisions of this Agreement.


 


24.8         Conflicting
Exhibits


 


In the event that any provision of the Exhibits or any other
attachments to this Agreement are deemed to be in conflict with the provisions
of this Agreement, the provisions of this Agreement shall control.


 


24.9         No
Waiver


 


Any failure by either party to enforce strict performance by the other
party of any provision herein shall not constitute a waiver of the right to
subsequently enforce such provision or any other provision of this Agreement.


 


24.10       Entire
Agreement


 


This Agreement and the Exhibits hereto constitute the entire agreement
between UTSI and TTL relating to the subject matter hereof and supersede all
statements, representations, and understandings, which have been made by either
party or their agents or representatives prior to the execution of this
Agreement.  No modification of this
Agreement shall be binding upon either party unless made in writing and
executed on behalf of that party by its duly authorized representative.


 


24.11       May
be Executed in Counterparts


 


This Agreement may be executed in counterparts and by facsimile such
that when taken together the, counterparts shall be deemed a true original of
the Agreement between the Parties.


 


	
  For
  Tata Teleservices Ltd.

  	
   

  	
  For
  UTStarcom Inc.

  
	
   

  	
   

  	
   

  
	
  By
  it’s Authorised Representative:

  	
   

  	
  By
  it’s Authorised Representative:

  
	
   

  	
   

  	
   

  
	
  /s/
  Ajay Madan

  	
   

  	
  /s/
  Ruchir Godura

  
	
   

  	
   

  	
   

  
	
  Mr. Ajay Madan

  	
   

  	
  Mr. Ruchir Godura

  
	
   

  	
   

  	
   

  
	
  (Chief Technical
  Officer)

  	
   

  	
  (Country Manager &
  Director — South Asia)

  
	
   

  	
   

  	
   

  
	
  Witness:

  	
   

  	
  Witness:

  
	
   

  	
   

  	
   

  
	
  /s/ A. G Rao

  	
   

  	
  /s/ Yogesh
  Bijlani

  
	
   

  	
   

  	
   

  
	
  Mr. A.G Rao

  	
   

  	
  Mr. Yogesh Bijlani

  



 


20

















 


Schedule A to Equipment Agreement


 


[***]


 


 

















 


Schedule B to the Equipment
Agreement


 


END-USER
SOFTWARE LICENSE


 


The following terms and conditions shall constitute the license
(“License”) by which software that accompanies, whether by being embedded into
a hardware element or component or by means of a separate media such as
diskette or compact disc, or otherwise (“Software”), is transferred in
connection with products (“Products”) supplied by Seller (“Licensor”).


 


It is hereby agreed that provisions of this license agreement are
subordinate to provision relating to Software as contained in the Agreement
dated 4 February 2003 between UTSI and TTL.  In the event of any inconsistency between this license agreement
and the above mentioned agreement, the provisions of the Agreement dated 4
February 2003 between UTSI and TTL shall prevail.


 


Grant.  The person who acquires any Product (“Licensee”) may install and
use the Software in machine-readable form only, solely on the Products, and
solely for the purpose of operating the Products.  Licensee may copy the Software only for backup purposes, provided
that Licensee reproduces all copyright and other proprietary notices that are
on the original copy of the Software.


 


Restrictions.  Licensee may not use, copy, modify, or
transfer the Software, or any copy thereof, in whole or in part, except as
expressly permitted by this License. 
Licensee may not reverse engineer, disassemble, decompile, or translate
the Software, or otherwise attempt to derive the source code of the Software,
or permit any other person to do any of the foregoing.  Any attempt to transfer any right, duty or
obligation in this License is void. 
Licensee may not rent, lease, loan, resell for profit, or distribute the
Software, or any part thereof.  License
may not modify or create derivative works based on the Software in whole or in
part.  Ownership.  The Software is not sold but is only
licensed to Licensee for use only in accordance with this License, and Licensor
reserves all rights not expressly granted to Licensee.


 


Copyright.  The Software is protected by United States copyright laws and
international treaty.  The Software is
owned by Licensor or its suppliers or licensors.


 


Term.  This License will terminate immediately upon notice to Licensee
if Licensee materially breach any term or condition of this License. Licensee
agrees upon termination promptly to destroy the Software and all copies
thereof.


 


Warranty Disclaimer.  THE SOFTWARE IS PROVIDED TO LICENSEE “AS IS”
AND LICENSOR AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES INCLUDING THE
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
NONINFRINGEMENT.


 


Limitation of Remedies.  IN NO EVENT SHALL LICENSOR OR ITS SUPPLIERS
BE LIABLE TO LICENSEE OR TO ANY OTHER PERSON FOR [***].


 


Export Law.  The Software and related technology are
subject to U.S. export control laws and may be subject to export or import
regulations in other countries. 
Licensee agrees strictly to comply with


 


 

















 


all such laws and regulations and acknowledge that Licensee has the
responsibility to obtain such licenses to export, re-export or import as may be
required.


 


General.  This License will be governed by the laws of the State of
California, USA.  The Federal and State
Courts located in San Francisco County, California, USA shall have sole
jurisdiction over all disputes arising in connection with this License.  If any provision of this License is held to
be unenforceable, that provision will be removed and the remaining provisions
will remain in full force.  This License
is the complete and exclusive statement of the agreement between Licensee and
Licensor and supersedes all prior agreements, oral or written, and all other
communications between Licensee and Licensor in relation to the subject matter
of licensing the Software.


 


Licensee agrees to the terms and conditions set forth
above in this License as of the effective date of this agreement date stated
below:


 


2

















 


Schedule C to the Equipment
Agreement


 


[***]


 


 

















 


Schedule D to the Equipment
Agreement


 


MUTUAL
NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT


 


THIS AGREEMENT IS ENTERED INTO BY AND BETWEEN SELLER, INC.,
1275 HARBOR BAY PARKWAY, SUITE 100, ALAMEDA, CA 94502 (“Seller”) AND
Buyer (“Company”).


 


1.                                       This
Agreement shall apply to all confidential and proprietary information disclosed
by the parties to the other, including but not limited to confidential product
planning information, product specifications and other proprietary and business
and technical information (hereinafter referred to as “Confidential
Information”).  As used herein,
“Confidential Information” shall be in written, graphic, machine recognizable
or other tangible or electronic form and marked “Confidential” or “Proprietary”
or shown by implication that it is imparted or disclosed in confidence, or if
disclosed orally or visually, shall be reduced to writing in summary form,
identified as “Confidential Information” and sent to the Receiving Party within
15 days following such oral or visual disclosure.


 


2.                                       Seller
and Company mutually agree to hold the other party’s Confidential Information
in strict confidence and not to disclose such Confidential Information to any
third parties except after receiving prior consent by the disclosing party in
writing.  Seller and Company shall use
the same degree of care to avoid disclosure of such Confidential Information as
each employs with respect to its own proprietary information of like importance
or a greater degree if reasonable.


 


3.                                       Seller
and Company agree that they will not use the other party’s Confidential
Information for any purpose other than for the intended purposes, without the
prior written permission of the other party.


 


4.                                       Seller
and Company mutually agree they may disclose such Confidential Information to
their respective responsible employees, including employees of other Tata group
companies or any other company in whom Tata Group has a management right or
ownership stake, with a bona fide need to know, and Seller and Company agree to
instruct all such employees not to disclose such Confidential Information to
third parties and will ensure that such employees have agreed to similar
non-disclosure provisions with Seller or the Company, its own employees
respectively.


 


5.                                       Information
shall not be deemed Confidential Information and the receiving party shall have
no obligation regarding any information for which it can be proven in written
documentation (a) is already known to the receiving party at the time that
it is disclosed without use of the Confidential Information; (b) is or
becomes publicly known through no wrongful act contrary to this Agreement of
the receiving party; (c) is rightfully received from a third party without
obligation of confidence or restriction on disclosure from receiving party and
without breach of this Agreement; (d) is independently developed by the
receiving party without use of Confidential Information; (f) is disclosed
pursuant to a requirement of a valid court order


 


 


2

















 


provided that the Receiving Party provides
(i) prior written notice for the disclosing party of such obligation and
(ii) the opportunity to oppose such disclosure and (iii) it is
disclosed for the extent and purposes or the order only.


 


6.                                       All
Confidential Information shall remain the property of the disclosing party, and
upon the written request of either party, the other party shall promptly return
to the disclosing party all Confidential Information disclosed to it and all
copies thereof or at the disclosing party’s option shall destroy all such
Confidential Information and shall provide the receiving party with a
certificate that all Confidential Information has been destroyed.


 


7.                                       Seller
and Company recognize and agree that nothing contained in this Agreement shall
be construed as granting any rights, by license or otherwise to any
Confidential Information disclosed pursuant to this Agreement.


 


8.                                       This
agreement shall be binding upon and inure to the benefit of the party’s
successors and assigns.  This Agreement
shall not be assignable by either party for the written consent of the other
party, and any purported assignment not permitted hereunder shall be void.  This document constitutes the entire
agreement between the parties with respect to the subject matter hereof, and
shall supersede all previous, understandings and agreements, either oral or
written, between the parties or any official or representative thereof.


 


9.                                       The
obligations undertaken by each party pursuant to this Agreement shall remain in
effect for three years from the last date of disclosure of Confidential
Information, and shall survive any termination or expiration hereof.


 


10.                                 None
of the Confidential Information disclosed by the parties constitutes any
representation, warranty, assurance, guarantee or inducement by either party to
the either with respect to the infringement of trademarks, patents, copyrights;
any right of privacy; or any rights of third persons.


 


11.           The parties hereto
are independent contractors.


 


12.                                 This
Agreement may be modified only by written amendment signed by both
parties.  This Agreement shall be
construed in accordance with the laws of India without regard to the conflict
of laws provisions and shall be subject to the jurisdiction of the courts of
India.


 


13.                                 The
receiving party may make copies of Confidential Information only to the extent
necessary for the purpose of this Agreement provided that the copies are marked
“Confidential” and treated as Confidential Information in accordance with the
terms of this Agreement.


 


14.                                 Accordingly,
nothing in this Agreement, will be construed as a representation or inference
prohibiting either party from developing products, having products developed
for it, from entering into joint ventures, alliances, or licensing
arrangements. that all without violation of this Agreement, compete with the
products or systems embodying the Confidential Information.


 


 


3

















 


Schedule F to the Equipment
Agreement


 


 


[***]


 


Acceptance Test Plan


 


4

















 


Table of Contents


 


[***]


 


 

















 


Purpose of document


 


This document shall describe the acceptance test plan for a standard
[***] installation.  Included are
descriptions of the necessary tools, preparation, installation and steps to do
the tests.  This document is provided as
a reference to the field engineers to complete system acceptance testing with
the customer.


 


General


 


The tests will be performed on [***] at exchange and remote
terminals.  Each test section is
composed of the title of the test, purpose, description, equipment,
documentation, pre-requisites and expected results.


 


This is a very
detailed acceptance test plan and is expected that all the tests mentioned here
will be conducted [***].  For
additional systems, the routine acceptance test plan shall be followed.


 


Also, this
acceptance test plan is for [***]. 
The actual site acceptance shall be limited to the [***].


 


Before the actual verification tests, it will be assumed that:


 


•                  The system was
properly commissioned and working normally.


•                  The working
system will guarantee the proper inter working tests, that is, [***].


•                  The required
test equipment and other components that are necessary to configure the system
should be in place before proceeding with the actual verification tests.


 


 


[***]


 


 


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