EXHIBIT 10.82


 


 


 


[***] 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


JOINT DEVELOPMENT AGREEMENT


Between


DATANG MOBILE COMMUNICATIONS

EQUIPMENT CO., LTD


And


UTStarcom (China) Co., Ltd.


 

















 


CONTENTS


 


Article
1                 Definitions


Article 2                 Scope


Article
3                 Management


Article 4                 Funding, Resources And
Facilities


Article
5                 Deliverables


Article 6                 Project Schedule


Article 7                 OEM


Article 8                 Ownership Of Intellectual
Property


Article 9                 Licenses


Article 10               Responsibilities


Article 11               Support


Article 12               Record Keeping And Reporting


Article
13               Warranties


Article 14               Claims Of Infringement


Article 15               Limitation Of Liability


Article 16               Confidentiality


Article 17               Term


Article
18               Termination


Article 19               No Agency


Article
20               Publicity


Article
21               Force Majeure


 

















 


Article 22               Resolution of Disputes


Article
23               Assignment


Article
24               Amendment


Article
25               Governing Law


Article
26               Severability


Article 27               Notice


Article 28               Entire Agreement


Article
29               Languages


Article 30               Solicitation of Employees


 

















 


JOINT DEVELOPMENT
AGREEMENT


THIS AGREEMENT made as of the 22nd day of November,
2002 (hereinafter the “Effective Date”).


BY AND BETWEEN:


DATANG MOBILE COMMUNICATIONS EQUIPMENT CO., LTD., having its registered
office at 40, Xue Yuan road, Beijing, the People’s Republic of China
(hereinafter collectively and individually referred to as “Datang”)


AND:


UTStarcom (China) Co., Ltd, having its office at 11th Floor, CNT
Manhattan Building No.  6, Chao Yang Men
Bei Da Jie St. Dong Cheng Dist. Beijing 100027, PRC. (hereinafter collectively
and individually referred to as “UT”)


WHEREAS Datang and UT wish to co-operate with each other and jointly
develop TD-SCDMA System Products;


NOW THEREFORE, in consideration of the mutual promises contained
herein, the Parties agree as follows:


ARTICLE 1.  DEFINITIONS


1)              The following capitalized terms, and other capitalized
terms defined elsewhere in this Agreement, will have the meanings ascribed
thereto wherever used in this Agreement:


a)              “Background IPR” means any Intellectual
Property Rights of a Party conceived, created, developed, or reduced to
practice prior to, or independently of, any work performed pursuant to this
Agreement.


b)             “Background Technology” means any
Technology of a Party conceived, created, developed, or reduced to practice
prior to, or independently of, any work performed pursuant to this Agreement.


c)              “Business Day” means any of Monday,
Tuesday, Wednesday, Thursday or Friday, excluding any statutory holiday in PRC;


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d)             “Confidential Information” means any
business, marketing, technical, scientific or other information disclosed by
any Party which, at the time of disclosure, is designated as confidential or
proprietary (or like designation), is disclosed in circumstances of confidence,
or would be understood by the Parties, exercising reasonable business judgment,
to be confidential.  Confidential
Information includes, without limitation, all Background IPR, Background
Technology, and the terms and conditions of this Agreement.


e)              “Deliverables” means those tangible items
that are to be delivered to a Party during or at the completion of a Project,
including functional or interface specifications, product requirements, service
or network architecture plans and tangible embodiments of Technology.  A Project may have more than one
Deliverable.


f)                “Documentation” means the documentation
as specified in a Project.


g)             “Intellectual Property Rights” or “IPR”
shall mean all intellectual property rights, including without limitation, any
rights in any invention, patent, discovery, improvement, know-how, utility
model, trade-mark, copyright, industrial design or mask work, integrated
circuit topography, trade secret and all rights of whatsoever nature in
computer software and data, Confidential Information, and all intangible rights
or privileges of a nature similar to any of the foregoing, including in every
case in any part of the world and whether or not registered, and shall include
all rights in any applications and granted registrations for any of the
foregoing.


h)             “Joint IPR” means the Intellectual
Property Rights mutually identified by the Parties in a Project as Joint IPR
and conceived, created, developed, or reduced to practice in a Project pursuant
to this Agreement.


i)                 “Joint Technology” means the technology
mutually identified by the Parties in a Project as Joint Technology and
conceived, created, developed or reduced to practice in a Project pursuant to
this Agreement.


j)                 “Licensee” means the Party to which a
license has been granted pursuant to this Agreement.


k)              “Licensor” means to Party which has
granted a license pursuant to this Agreement.


l)                 “Party” means either Datang or UT.


m)           “Parties” means Datang and UT.


n)             “PRC” means the People’s Republic of
China and includes the Special Administrative Regions of Hong Kong and Macau,
and Taiwan.


o)             “Products” means UT TD-SCDMA RNC and
Datang’s TD-SCDMA Node B and RRM module.


p)             “Project” means the research and
development to be performed by either Party, or by the Parties jointly, as described
in an executed Project schedule.


q)             “Project schedule” means a document
referencing this Agreement and containing, in substance, the information
relating to the Project required by Article 2 hereof.


r)                “Proprietary IPR” means the Intellectual
Property Rights conceived, created, developed, or reduced to practice in by a
Party individually and owned by such Party;


s)              “Proprietary Technology” means the
Technology conceived, created, developed or reduced to practice in by a Party
individually and owned by such Party;


t)                “Software” means computer software.  Except as otherwise specified or granted
hereunder, Software shall include both Source Code and Object Code.


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u)             “Source Code” means the code in
human-readable form.


v)             “Specifications” means the features and
functional capability of a Deliverable.


w)           “Subsidiary” means any corporation or
other legal entity in which a Party directly or indirectly owns or controls,
and continues to own or control, fifty percent (50%) or more of the voting
stock or shares.


x)               “Technical Information” means all
drawings, schematics, formulae, specifications, designs, concepts, diagrams,
processes, procedures, protocols, parameters, engineering details, functional
descriptions, layouts, architectural models, invention disclosures, data and
database content, or other technical or scientific documentation, including
bills of materials, component supplier lists, manuals, and other information
(in any form communicated or mediated) to the extent it exclusively relates to
the Software, Hardware and provided by one Party to the other Party, but other
than the Source Code, Object Code, and associated software documentation.


y)             “Trademarks” means all registered and
unregistered trademarks, service marks, trade names , business names, brand
names, product names, distinguishing guises, trade dress, network identifiers,
domain names and any other indicators of origin, whether registered or
unregistered, in every part of the world, and any and all applications or
registrations, and any and all rights whatsoever, for any of the foregoing,
belonging to either Party.


z)               “Third Party IPR” shall mean any
Intellectual Property Rights, including software programs, owned by a third
person.


2)              The insertion of headings herein and the
division of this Agreement into articles and sections are for convenience of
reference only and shall not affect the interpretation hereof.  The words “hereof”, “hereunder” and similar
expressions refer to this Agreement and not any particular section hereof;
“article”, “section”, and “subsection” mean and refer to the specified article,
section or subsection of this Agreement.


ARTICLE 2. 
SCOPE


1)              In order to reduce time to market for a
TD-SCDMA solution, UT and Datang have agreed to work together to provide a
TD-SCDMA solution, including core network, RNC and Node B as described in
Annex I.


2)              UT and Datang will jointly develop
TD-SCDMA RNC with the capability defined in Annex IV based on UT's WCDMA
RNC.  In particular, Datang will be
responsible for the development of the TD-SCDMA RNC RRM module.


3)              Datang and UT will provide corresponding
expertise to the other Party for the joint development of the RNC.


4)              Datang will provide the TD-SCDMA
Node B and UE Simulator (UE-SIM) for integration and testing.


5)              UT will provide the TD-SCDMA core network
for integration and testing.  This
TD-SCDMA core network will be based on UT's W-CDMA core network.


6)              Both parties will join effort to specify
the TD-SCDMA lub interface and Datang will be the prime for the specification
of the lub interface.


7)              Both parties will join effort to specify
the TD-SCDMA Uu high level interface and Datang will be the prime for the
specification of the Uu interface.


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8)              Both parties will join effort to specify
the OAM interface of the TD-SCDMA Node B and Datang will be the prime for
the specification of the Node B OAM.


9)              Both parties will join effort together to
perform initial compatibility testing, including lub interface, necessary
simulator or subsystem integrations for basic call process functionality
testing, which will be located in [***].


10)        Both parties will join effort together to
perform the whole TD-SCDMA system (including Core network, RNC, Node B and
UE_SIM) integration test, which will be located in [***].


11)        Both parties will join effort together to
perform the whole TD-SCDMA system field trial in internal and external site.


12)        Each Party on behalf of itself and its
subsidiaries and affiliates agrees to work [***] with the other Party on Joint
Development activities in respect of the RNC for the joint TD-SCDMA solution.


13)        All Projects undertaken by the Parties
shall be governed by the terms of this Agreement.


ARTICLE 3.  MANAGEMENT


1)              Each party shall respectively appoint a
project manager to be responsible for day to day management of the Project.


2)              The project managers shall be responsible
for the following activities in respect of the applicable Project, together
with such other activities as the Parties may agree:


a)              representing their respectively
appointing parties in all development matters relating to such Project;


b)             resolution of all technical and
operational disputes between the Parties with respect to the such Project (all
such disputes that cannot be resolved by the Project Managers shall be
submitted to each party’s high level management);


c)              submitting and receiving the Deliverables
and other materials and documents required to be delivered for such Project
under this Agreement;


d)             overseeing development Projects, acting
on requests for minor changes to the Project and preparing proposals for major
changes to such Projects for submission to the management;


e)              arranging any meetings to be held between
the parties;


f)                maintaining, for record-keeping purposes,
a log book or notes containing summaries of all material communications and
deliveries between the two project managers; and


g)             implementing appropriate practices and
procedures to assure the security of the items delivered under this Agreement.


ARTICLE 4.  FUNDING, RESOURCES AND FACILITIES


1)              Each Party will assign resources to the
Project [***].  [***] expenses relating
to the performance of its obligations under the Project, including without
limitation, [***].


2)              Datang shall provide its premises in
[***] for the development to be carried out by Datang.


3)              UT shall provide the premises in [***]
for the development to be carried out by UT.


4)              Each Party shall provide or arrange for
[***] for the development at its premises.


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5)              Each Party shall permit the other Party’s
designated development personnel access to such premises as required in each
Project in accordance with agreed policies and procedures.


ARTICLE 5.  DELIVERABLES


1)              Each Party shall use [***] to provide all
Deliverables for which it is responsible on or before the scheduled delivery
date set forth in the Project schedule.


2)              Prior to delivery of any Deliverable, the
supplying Party (“Supplier”) shall conduct tests to ensure that the Deliverable
conforms to the Specifications.  Upon
receipt of any Deliverable, the receiving Party (“Receiver”) shall conduct such
tests, with the assistance of Supplier if requested by Receiver, to determine
whether such Deliverable conforms to the Specifications.  Unless the tests reveal a non-conformity of
the Deliverable to the Specifications, Receiver shall [***] provide a notice of
acceptance of the Deliverable to the Supplier upon completion of the tests.


3)              In the event that Receiver fails to
provide a notice describing any non-conformity to the Specifications within
[***] Business Days from the date of the initial delivery of the Deliverable or
within [***] Business Days of the date of any redelivery of the Deliverable,
Supplier shall be entitled to provide Receiver with a notice specifying that
unless Receiver has provided a notice of a deficiency within [***] Business
Days of receipt of the notice, Receiver shall be deemed to have accepted the
Deliverable.


4)              If the Deliverable does not conform to
the Specifications, Receiver shall provide to Supplier a written description of
the relevant part of the Specifications to which the Deliverable does not
materially conform.  Within [***]
Business Days of receiving said written description from Receiver, Supplier
shall provide to Receiver a plan and date for correction of such nonconformities.  Supplier shall apply all commercially
reasonable efforts to correct any such nonconformities according to the date in
such plan.  Upon receipt of the
corrected Deliverable, Receiver shall retest the Deliverable.


5)              If, for any reason other than a default
by Receiver, a Deliverable has not been accepted within [***] Business Days of
the originally scheduled delivery date, Receiver may reject the
Deliverable.  Additionally, where
Receiver has rejected any Deliverable, Receiver shall be entitled, by giving
notice within [***] Business Days of such rejection, to terminate the Project
to which the Deliverable related.


ARTICLE 6.  PROJECT SCHEDULE


Please see the ANNEX II.  The attached schedule is subject to change upon thirty (30)
business days prior notice by either party to the other.  Such notice shall include the reason to
change the schedule and the new proposed schedule.


ARTICLE 7.  OEM


1)              To maximize the market share of the
Parties in the market, and if mutually deemed to be commercially reasonably by
both Parties, the Parties would OEM each other’s products to provide the [***]
solution.  [***] products are the RNC
and the Core Network. [***] product is the Node B and RRM module.


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2)              [***] would OEM the RNC and Core
equipment to [***] for sale by [***].


3)              [***] will OEM the Node B and RRM
module to [***] for sale by [***].


4)              The above-described OEM relationship
between the Parties would be subject to the terms and conditions contained in a
separate OEM agreement, which would be mutually negotiated by and agreed to by
the Parties.


ARTICLE 8.  OWNERSHIP OF INTELLECTUAL PROPERTY


1)              Except for the rights expressly granted
under this Agreement, each Party shall retain all right, title, and interest in
and to such Party’s Background IPR, Background Technology, Proprietary IPR,
Proprietary Technology and Trademarks. 
Each Party reserves all rights not expressly granted herein, and any
express reservations of rights set forth herein shall not be construed as
limiting such reservation or conferring by implication, estoppel or otherwise
any grant or license or other right under any patent or other right of
intellectual property or confidential information other than those rights
expressly set forth in this Agreement.


2)              Each Party shall retain ownership of all
right, title and interest in and to any IPR and Technology (including
Background Technology and Background IPR as described in Annex III, Proprietary
IPR and Proprietary Technology) developments it creates other than IPR and
Technology which have been identified to be Joint IPR and Joint Technology in a
Project.


3)              Without limitation to the foregoing, each
Party reserves all rights to continue to develop, manufacture, license and use
such Party’s Background Technology, Background IPR, Proprietary Technology and
Proprietary IPR as such Party, in its discretion, sees fit.  Each Party also reserves the right to
license such Party’s Background Technology under such Background IPR, or
Proprietary Technology under such Proprietary IPR, or rights thereunder, to
other parties.


4)              Joint IPR and Joint Technology shall be
identified in advance in Annex 1 as agreed between the Parties.


5)              Except as the Parties may otherwise agree
in any Project schedule, the Parties agree that all Joint IPR and Joint
Technology shall belong jointly to both Parties and each Party shall have the
[***] right to practice and exploit such Joint IPR or Joint Technology, and
without limitation, to [***] to the extent that it embodies such Joint IPR or
Joint Technology anywhere in the world without any restriction or accounting to
the other Party.  [***].


6)              Both Parties shall mutually agree upon
the filing of applications and execution and delivery of any further documents
that may be required in order to secure intellectual property rights, including
but not limited to patent and copyright, in the Joint IPR and Joint Technology.


7)              While either Party may have the
responsibility to file, prosecute and/or maintain patents, the filing,
prosecuting or maintaining of such patents shall be at the sole discretion and
judgment of that Party, and neither Party, nor their employees, agents or
officers, shall have any responsibility or liability to the other party for any
failure, mistake or error in the filing, prosecuting or maintaining of such
patents.


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8)              Each Party shall enforce its sublicense
agreements with Contractors, Distributors, Suppliers or Customers as necessary
to protect the other Party’s intellectual property rights or rights to
Confidential Information.


9)              Copyright Notices.


a)              Licensee shall not remove or destroy any
copyright or restricted rights notices affixed to any original media containing
any Background Technology.  All copies
of Background Technology made by or on behalf of Licensee shall either be
labeled in the same manner as on the original media or in a manner
substantially similar to the following:


Copyright [name of Licensor].  All Rights Reserved.


b)             All copies of Modified Source Code, and
Modified Object Code made by or on behalf of Licensee shall either be labeled
in the same manner as on the original media or in a manner substantially
similar to the following:


Copyright [year(s)] [name of Licensee] and its
licensors.  All Rights Reserved.


10)        Licensee shall mark all Licensee Products
with a notation such as “Licensed under [Country] Patent No. _,___,___”,
as applicable.  Licensee shall include
such notations in all of its publicity (including but not limited to
advertising, catalogues and brochures, and the like) describing Licensee
Products.  Within [***] after notice,
Licensee shall provide Licensor with a sample of all of such packaging and
publicity (including but not limited to advertising, catalogues and brochures,
and the like), to enable verification of such marking and notation.


ARTICLE 9. 
LICENSES


1)              Subject to the terms and conditions of this
Agreement, to the extent of its legal right to do so, Datang grants to UT a
[***] license in, to and under the Datang Background IPR for [***] within the
scope defined in Article 2 only.


2)              Subject to the terms and conditions of
this Agreement, to the extent of its legal right to do so, UT grants to Datang
a [***] license in, to and under the UT Background IPR for [***] within the
scope defined in Article 2 only.


ARTICLE 10.  RESPONSIBILITIES


1)              In the event that regulatory approvals
are required in the PRC for Node B, Datang shall, at its expense, initiate
and complete the procedures necessary to obtain all such regulatory,
telecommunications, safety and like approvals that are required in the PRC for
the Products.  Datang shall process all
necessary applications and forms, perform all necessary language translations
to and from English, and assist in local testing.  Subject to nondisclosure terms, UT shall provide Datang with
information and Products as may be required for the application and certification
process.


2)              In the event that regulatory approvals
are required in the PRC for RNC, UT shall, at its expense, initiate and
complete the procedures necessary to obtain all such regulatory,
telecommunications, safety and like approvals that are required in the PRC for
the Products.  UT shall process all
necessary applications and forms, perform all necessary language translations
to and from 


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English, and assist in
local testing.  Subject to nondisclosure
terms, Datang shall provide UT with information and Products as may be required
for the application and certification process.


ARTICLE 11. 
SUPPORT


1)              Unless the applicable Project schedule
specifies that technical assistance shall not be available in respect of any
Deliverable, Supplier shall provide, upon request, technical assistance to
facilitate Receiver’s use of the Deliverables. 
Any such technical assistance shall be limited to that which is
reasonable under the circumstances and shall be scheduled by Supplier to serve
the needs of Receiver but not so as to inconvenience, or place irregular
demands upon, the operations of Supplier. 
Technical assistance may include training, consulting technical services
of Supplier’s engineering, technical and research personnel, visits of such
personnel to Receiver’s facilities, and visits of Receiver’s engineering,
technical and research personnel to Supplier’s facilities.


ARTICLE 12.  RECORD KEEPING AND REPORTING


1)              Each Party shall maintain a record,
including but not limited to copies of agreements addressing rights to use the
software executed by the Customer, of its distribution of the Products for a
period of 5 years in order to comply with the requirements imposed upon such
Party by such Party’s suppliers of software and for both Parties protection in
the event that products liability, copyright infringement, trade secret
misappropriation, or intellectual property misuse claims related to the
Products should arise.


ARTICLE 13.  WARRANTIES


[***]


ARTICLE 14.  CLAIMS OF INFRINGEMENT


1)              If a third party raises a claim of an
infringement or alleged infringement of any PRC patent, copyright or other
intellectual property right against a Party in connection with the Background
Technology only as licensed hereunder and integrated into a Product, Licensor
shall defend against or settle with such third party, and indemnify and protect
Licensee from the damages and costs including reasonable attorney’s fee, if
any, awarded in lawsuit directly attributable to such claim or any settlement
thereof; provided that,


a)              Licensee shall inform Licensor
immediately of such claim;


b)             Licensor has sole control of such defense
and all negotiations for any settlement or compromise;


c)              Licensee shall not, of its own accord,
admit or settle such claim;


d)             Licensee shall provide reasonable
assistance to Licensor to ward off such claim;


e)              Licensee shall act only in accordance
with written instructions of Licensor, which shall be received in a timely
fashion; and


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f)                Licensor shall have the right to give to
Licensee, at Licensor’s option, a right to participate in and/or take over
disputes, and/or to settle such claim.


g)             In case of a claim set forth in this
Article, Licensor may, without any further liability and at its own cost and
discretion, take one of the following:


i)                 acquire the right to use the necessary
intellectual property right from the person or company entitled to dispose of
such intellectual property right; or


ii)              replace or modify the Background
Technology so as to become a non-infringing one;


2)              [***]


3)              In the excepted cases stated above,
Licensee shall indemnify and hold Licensor harmless against any loss, cost,
expense, damage, settlement or other liability, including, but not limited to,
reasonable attorneys’ fees, which may be incurred by Licensor with respect to
any action based on such a claim.


ARTICLE 15.  LIMITATION OF LIABILITY


1)              [***]


2)              [***]


3)              [***]


4)              Each Party shall (i) obtain a
written agreement with its Customers which includes both warranty and [***] or
(ii) failing to do so, [***].


ARTICLE 16.  CONFIDENTIALITY


1)              Each Party agrees, in the event it
receives Confidential Information of the other Party to take all reasonable
actions to protect and hold such information in confidence in order to prevent
its disclosure to third parties, to use such Confidential Information only for
those purposes contemplated under this Agreement, and to disclose Confidential
Information only to its employees on a need-to-know basis.


2)              At all times during the term of the
Agreement, both Parties shall perform all reasonably required security
procedures at its facilities and in connection with its business activities in
order to protect the Confidential Information of the other Party, including but
not limited to, controlled access to the such Party’s facilities and/or
installations, use of security badges by its employees, contractors and others
while on the premises or installation sites, and confidentiality agreements
with its employees and contractors and such other security standards and
procedures as shall be reasonably necessary to ensure the protection and
non-disclosure of Confidential Information.


3)              The obligations of each Party under this
Article shall survive for three (3) years after the expiration or termination
of this Agreement.  Notwithstanding the
foregoing, neither Party shall be required to protect or hold in confidence any
information which:


a)              is or becomes available to the public or
to industry without the fault of the recipient;


b)             is subsequently rightfully received by
the recipient from a third party without obligation of restriction on further
disclosure; or


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c)              is independently developed by the
recipient as evidenced by its business records.


ARTICLE 17.  TERM


1)              This Agreement is valid for two (2) years
from the effective date hereof. 
Thereafter, the Agreement may be renewed each year for successive one
(1) year periods by mutual written agreement of the Parties.


ARTICLE 18.  TERMINATION


1)              Either Party may at its option forthwith
terminate this Agreement hereunder without payment of any compensation by
giving a written notice thereof to the other Party, in the event of the
happening of any of the following:


a)              Insolvency of the other Party;


b)             Filing of a voluntary petition in
bankruptcy or for corporate reorganization or for any similar relief or passing
a resolution for its winding-up or commencement of voluntary liquidation
proceeding by the other Party;


c)              Filing of an involuntary petition in
bankruptcy or for corporate reorganization or for any similar relief or
commencement of involuntary liquidation proceeding against the other Party
unless such petition or proceeding is set aside or withdrawn or ceases to be in
effect within sixty (60) days from the date of such filing or comment;


d)             Appointment of receiver, trustee or
liquidator with respect to any of the assets of the other Party;


e)              Execution by the other Party of an
assignment for the benefit of its creditors under laws relating to bankruptcy,
liquidation or insolvency;


f)                Transfer to or acquisition by a third
party;


g)             Any substantial or important change in
the ownership, control or management of the other Party;


h)             Any unauthorized sale of Products outside
of the conditions set forth in this Agreement; or


i)                 Failure to correct or cure any material
breach by the other Party of any covenant or obligation under this Agreement
and/or individual sales contracts hereunder within thirty (30) days after
receipt by the other Party of a written notice from such Party specifying such
breach;


j)                 Occurrence of the following circumstances
make this agreement unnecessary, 1) “Chinese government announces to
abandon TD-SCDMA; 2) the other party’s development work cumulatively delay
four (4) months or more than four (4) months according to the project schedule
in Article 6.


2)              Any expiration or earlier termination of the Agreement
does not release modify or alter any of the obligations of the Parties which
accrued prior to such expiration or termination.  Any provision of this Agreement which by its content is intended
to survive expiration or termination shall so survive.


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ARTICLE 19.  NO
AGENCY


1)              No agency, partnership, joint venture or
employment relationship is or shall be created by virtue of this Agreement.


ARTICLE 20.  PUBLICITY


1)              Neither Party shall use the name of the
other Party in any advertising, public relations or media release without the
prior written consent of such other Party.


ARTICLE 21.  FORCE MAJEURE


1)              For the purpose of this Agreement, the
force majeure shall mean the circumstances of earthquake, typhoon, floods, fire
and war and any objective circumstance which is unforeseeable, unavoidable and
insurmountable.


2)              A Party who is unable to perform the
Agreement or unable to fully perform the Agreement due to force majeure, shall
notify the other Party within [***] after the event of force majeure occurs and
provide the certificate notarized by the local Notary Public within [***] after
the event of force majeure occurs.


3)              A Party who is unable to perform the
Agreement due to force majeure is exempted from liability in part or in whole
in light of the impact of the event of force majeure, except otherwise provided
by law.


4)              Where an event of force majeure occurred
after the Party’s delay in performance, it is not exempted from liability.


5)              In the event that the performance under
this Agreement is prevented for a continuous period of [***] or longer by any
of the events of force majeure, either Party shall have the right to terminate
the Agreement by sending a written notice to the other Party.


ARTICLE 22.  RESOLUTION OF DISPUTES


1)              All disputes, controversies and claims
arising out of or in connection with this Agreement, or the breach, termination
or invalidity hereof (a “dispute”), shall be settled through friendly
consultation among the Parties.  If the
dispute cannot be settled through friendly consultation within sixty (60) days
after written notice is first given of the dispute, then it shall be settled by
arbitration in accordance with China International Economic and Trade
Arbitration Commission’s Arbitration Rules as supplemented by the provisions of
this Article 22.


2)              The arbitration shall take place in
Beijing before China International Economic and Trade Arbitration
Commission.  There shall be three (3)
arbitrators.  UT and Datang shall each
appoint one (1) arbitrator.  The third
arbitrator shall be appointed by the president of China International Economic
and Trade Arbitration Commission and shall serve as chairman of the panel.


3)              The arbitration fee shall be borne by the
losing Party.


4)              In the course of arbitration, both
Parties shall continue to execute the Agreement insofar as is reasonably
practical except the part of the Agreement which is under arbitration.  This Article shall survive termination of
this Agreement.


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ARTICLE 23.  ASSIGNMENT


1)              Neither Party shall, in whole or in part,
assign or otherwise transfer this Agreement or any of rights and obligations
created thereunder, without the prior written consent of the other Party, which
shall not be unreasonably withheld.


ARTICLE 24.  AMENDMENT


1)              No part of this Agreement shall be
altered, changed, supplemented or amended except by a written instrument or
instruments signed by the duly authorized representatives of UT and Datang.


ARTICLE 25.  GOVERNING LAW


1)              This Agreement shall in all respects be
governed by and construed in accordance with the laws of the PRC.


ARTICLE 26.  SEVERABILITY


1)              If any provision of this Agreement shall
be determined to be illegal or unenforceable, such provision, to the extent it
is illegal or unenforceable, shall be deemed severed from this Agreement, and
shall be substituted by a reasonable provision to be mutually agreed upon.


ARTICLE 27. 
NOTICE


1)              All notices under this Agreement shall be
given by airmail or facsimile (confirming the same by mail), addressed to the
Party to be notified at the address specified below:


If to Datang:                             DATANG MOBILE COMMUNICATIONS EQUIPMENT
CO., LTD


ADDRESS:                                    Bldg. 41,333 Qingjiang Road, Shanghai,
China, 200233


Attention:                                         Mr. Chen Ping


If to
UT:                                                   UTStarcom Shenzhen R&D Center 


ADDRESS:                                    3/F, Legend Building, High-tech
Industrial Park, Nanshan Shenzhen, China, 518057


Attention:                                         Mr. Zeeman Zhang


or to such other address or addresses as the
respective Party may designate from time to time.  Such notice shall be considered to have been sufficiently given
on the fifth (5th) Business Day following the date of mailing such notice or
the next working day following transmission, if by facsimile.


 


13

















 


ARTICLE 28. 
ENTIRE AGREEMENT


1)              This Agreement contains the entire
agreement between both Parties concerning the subject matter hereof and
supersedes all previous negotiations, commitments and writings in respect to
such subject matter.  No provision of
this Agreement may be modified or amended, in whole or in part, except in
writing executed by duly authorized representatives of both Parties.


2)              Should there be any conflict between the
Articles of this Agreement and the Schedules, the Articles of this Agreement
shall supersede the conflicting portions of the Schedules.


ARTICLE 29.  LANGUAGES


1)              This Agreement is written in both English
and Chinese.  The English version and
the Chinese version shall be equally valid. 
In case of discrepancy between the two versions, the Chinese version
shall prevail.


ARTICLE 30.  SOLICITATION OF EMPLOYEES


1)              Neither party shall during the Term and
for [***] thereafter solicit for employment or hire, directly or indirectly,
the other party’s personnel who are directly involved in the conception,
reduction to practice, or development of any Technology, or the transfer or
receipt of any Technology hereunder, without the express prior written consent
of the other party.


TABLE
OF ANNEXES


Annex I                                  Overview of
Joint Development


Annex II                                 Project
Schedule


Annex III                               Background IPR


Annex IV                               [***]


 


14

















 


IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed in duplicate in English and Chinese respectively by duly authorized
representatives of both Parties as of the dates written below.


	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Datang Mobile Communications Equipment Co., Ltd

  	
   

  	
  UTStarcom
  (China) Co., Ltd

   

  
	
  By:

  	
   

  	
  By:

  
	
  Name:

  	
   

  	
  Name:

  
	
  Title:

  	
   

  	
  Title:

  
	
  Date:

  	
   

  	
  Date:

  



 


15

















 


Annex I - Overview of
Joint Development


[***]


 


 

















 


ANNEX II              schedule


[***]


 

















 


ANNEX III             Background IPR And Background
Technology List


 


[***]


 

















 


Annex IV – [***]


[***]