Exhibit 10.86


 


[***] 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


 




 





STRICTLY CONFIDENTIAL


 


 


 


 


 


 


 


 


BROADBAND ACCESS SOFTWARE CONTRACT


 


 


between


 


 


RELIANCE
INFOCOMM LIMITED,


“Reliance”


 


 


and


 


 


UTSTARCOM
INC.,


“Vendor”


 


 


 


 


 


 


 


Dated
as of October 1, 2002


 


 




 





 


 


 

















 


 


Table of Contents


 


 


 


	
  1

  	
   

  	
  BACKGROUND AND OBJECTIVES

  	
   

  	
   

  
	
   

  	
   

  	
  1.1

  	
   

  	
  Background

  	
   

  	
   

  
	
   

  	
   

  	
  1.2

  	
   

  	
  Objectives

  	
   

  	
   

  
	
  2

  	
   

  	
  DEFINITIONS

  	
   

  	
   

  
	
  3

  	
   

  	
  SCOPE
  OF WORK, RESPONSIBILITIES AND MILESTONES

  	
   

  	
   

  
	
   

  	
   

  	
  3.1

  	
   

  	
  Scope of Work

  	
   

  	
   

  
	
   

  	
   

  	
  3.2

  	
   

  	
  Minimum Purchase
  Commitment

  	
   

  	
   

  
	
   

  	
   

  	
  3.3

  	
   

  	
  Test Bed

  	
   

  	
   

  
	
   

  	
   

  	
  3.4

  	
   

  	
  Shipment

  	
   

  	
   

  
	
   

  	
   

  	
  3.5

  	
   

  	
  Material
  and Inventory Management Systems

  	
   

  	
   

  
	
   

  	
   

  	
  3.6

  	
   

  	
  Applicability

  	
   

  	
   

  
	
  4

  	
   

  	
  Source code escrow

  	
   

  	
   

  
	
  5

  	
   

  	
  Malicious AND DISABLING
  CODE

  	
   

  	
   

  
	
  6

  	
   

  	
  TERM

  	
   

  	
   

  
	
  7

  	
   

  	
  PRICING AND INVOICING

  	
   

  	
   

  
	
   

  	
   

  	
  7.1

  	
   

  	
  Price List

  	
   

  	
   

  
	
   

  	
   

  	
  7.2

  	
   

  	
  Determination of Net
  Price

  	
   

  	
   

  
	
   

  	
   

  	
  7.3

  	
   

  	
  Invoicing Terms

  	
   

  	
   

  
	
   

  	
   

  	
  7.4

  	
   

  	
  Invoicing
  Terms for all other Softwares:

  	
   

  	
   

  
	
   

  	
   

  	
  7.5

  	
   

  	
  Currency and Mode of
  Payments

  	
   

  	
   

  
	
   

  	
   

  	
  7.6

  	
   

  	
  Total Cost Basis

  	
   

  	
   

  
	
  8

  	
   

  	
  WARRANTIES

  	
   

  	
   

  
	
   

  	
   

  	
  8.1

  	
   

  	
  Software Warranty

  	
   

  	
   

  
	
   

  	
   

  	
  8.2

  	
   

  	
  Breach
  of Warranties

  	
   

  	
   

  
	
   

  	
   

  	
  8.3

  	
   

  	
  Correction
  of Software

  	
   

  	
   

  
	
   

  	
   

  	
  8.5

  	
   

  	
  Third Party Provider
  Warranties

  	
   

  	
   

  
	
   

  	
   

  	
  8.6

  	
   

  	
  Disclaimer

  	
   

  	
   

  
	
  9

  	
   

  	
  TERMINATION AND EVENTS
  OF DEFAULT

  	
   

  	
   

  
	
   

  	
   

  	
  9.1

  	
   

  	
  Reliance’s Right
  of Termination

  	
   

  	
   

  
	
   

  	
   

  	
  9.2

  	
   

  	
  Vendor’s Right of
  Termination

  	
   

  	
   

  
								



 


 


 


i

















 


EXHIBITS


 


	
  Exhibit A

  	
   

  	
  Price List

  



 


 


 


 


 


 


 


ii

















 


BROADBAND ACCESS SOFTWARE CONTRACT


 


This
Broadband Access Software Contract (“Broadband Access Software Contract”) is
effective as of October 1, 2002 (the “Effective Date”), by and between Reliance
Infocomm Limited, a company incorporated and registered under the Companies
Act, 1956 and having its registered office at Avdesh House, Pritam Nagar, 1st
Slope, Ellis Bridge, Ahmedabad 380 006, Republic of India (hereinafter referred
to as “Reliance” which expression, unless repugnant to the context or meaning
thereof, shall mean and include its successors and permitted assigns), and
UTStarcom Inc., a company incorporated under the laws of Delaware and having
its principal offices at 1275 Harbor Bay Parkway, Alameda, California 94502,
U.S.A  (hereinafter referred to as the
“Vendor” which expression, unless repugnant to the context or meaning thereof,
shall mean and include its permitted successors and assigns and, together with
Reliance, the “Parties” and each, a “Party”).


RECITALS:


 


A.  Reliance desires to purchase from the Vendor
certain Software appropriate for the efficient and effective installation,
operation, management and maintenance of the Broadband Access Reliance Network,
including the Initial Broadband Access Reliance Network; and


B.  The Vendor, desires to provide to Reliance
such Software and shall, including, without limitation supply and deliver such
Software, in accordance with the terms and conditions set forth herein.


NOW, THEREFORE, in consideration
of the mutual promises and covenants herein contained, and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Parties hereby agree as follows:


1                      BACKGROUND
AND OBJECTIVES


1.1                     Background


Reliance
desires to obtain certain Software to support its Initial Broadband Access
Reliance Network and the Broadband Access Reliance Network in the Territory.
The Vendor shall perform all specific Vendor responsibilities set forth in this
Broadband Access Software  Contract,
including applicable Purchase Orders and the Specifications. The Vendor shall
review the Broadband Access Reliance Network work performed and shall report on
any exception. Notwithstanding the foregoing sentence, Vendor shall be
responsible for providing the Software under this Broadband Access Software
Contract in accordance with the Specifications, including without limitation
the Timetables. This Broadband Access Software Contract is subject to the terms
and conditions set forth in the Broadband Access Network General Terms and
Conditions executed by the Parties as of the date hereof (the “General Terms”).


1.2                     Objectives


Reliance
requires software that fully supports: (a) the Initial Broadband Access
Reliance Network and the Broadband Access Reliance Network, including all cost,
performance and functional requirements set forth in the relevant Documents;
(b) Interoperability; and (c) Reliance’s business requirements described in the
Documents (collectively, the


 


1

















 


“Objectives”).  The Vendor represents, warrants and
covenants that the Software shall be 
fully compatible with and fully supports the Objectives, as shall be
demonstrated to Reliance, in part, in the Acceptance Tests.


2                      DEFINITIONS


As
used in this Broadband Access Software Contract, the following terms have the
following meanings.  In addition to the
terms listed below, certain additional capitalised terms are defined in the
General Terms, the attachments to this Broadband Access Software Contract and
in other applicable Documents. Unless otherwise specifically provided, all
section, schedule and exhibit references are to this Broadband Access Software
Contract.


“Base Price”


has
the meaning as ascribed hereto in Section Error!
Reference source not found..


“Effective Date”


has
the meaning ascribed thereto in the prefatory paragraph to this Broadband
Access Software Contract.


“Price List”


means
a table of list prices applicable to Software supplied by Vendor to Reliance as
amended from time to time as set forth herein. The Price List as of the
Effective Date is set forth in Exhibit A.


“Software Warranty”


has
the meaning ascribed thereto in Section 8.1.


“Broadband Access Software Contract”


this
Broadband Access Software Contract, including all schedules, exhibits and other
attachments hereto.


3                      SCOPE OF
WORK, RESPONSIBILITIES AND MILESTONES


3.1                     Scope of Work.


3.1.1                                  The Vendor shall provide to
Reliance the Software set forth in the Specifications as amended from time to
time by mutual written agreement between the Parties. Vendor’s obligations
hereunder shall include, but not be limited to, the obligation to supply
(including inspection and expediting) and deliver the Software in and within
the Broadband Access Reliance Network as designated by Reliance in accordance
with the Broadband Access Software Contract. All Software shall comply with the
Specifications and the Standards. and shall be the latest and best in class,
unless otherwise specified by Reliance in writing. The Vendor shall coordinate
its efforts hereunder with all Subcontractors, Third Party Providers and the
Other Contractors, to ensure compliance with any and all supply and logistics
requirements and all


 


 


2

















 


Governmental Entities. All
Software, requiring certification shall be certified by independent and
appropriate professionals licensed or properly qualified to perform such
certification in all appropriate jurisdictions, reasonably acceptable and at no
cost to Reliance, if such certification is, required by Applicable Law or the
Specifications.


 


3.1.2                                  Vendor shall deliver only
such Software as are specifically ordered by Reliance pursuant to a Purchase
Order. Reliance shall not be obligated to pay for any Software not covered by a
Purchase Order.


3.1.3                                  The Software supplied under
this Broadband Access Software Contract is standard software that Vendor would
supply to any other Person seeking to establish wireless telephony networks
similar to the Broadband Access Reliance Network.


3.2                     Minimum Purchase Commitment


Notwithstanding anything to the contrary,
Reliance agrees that it shall, between [***] purchase at least [***] from
Vendor (the “Minimum Committed Quantity”) subject to Vendor’s continued
conformance with the terms set forth in the Documents.


 


3.3                     Test Bed


3.3.1                                  For the purpose of testing
the Vendor shall provide the Software set forth in the Specifications at [***]
to Reliance and such Software shall be shipped to the Reliance designated
location not later than [***] after the Effective Date of the Broadband Access
Software Contract if specifically requested for by Reliance in writing.


3.3.2                                  The Vendor shall supply and
install at [***] to Reliance the Test Bed Laboratory and at least one of each
type of new Software set forth in any Purchase Order or that is planned to be
bought by Reliance before the end of the next succeeding [***].


3.3.3                                  In order to work towards
achieving Interoperability, Reliance may bring other infrastructure vendor’s
software into the Test Bed Laboratory. Notwithstanding anything to the
contrary, the Vendor shall share with these other infrastructure vendors that
Reliance brings into the Test Bed Laboratory, all necessary interface
information to facilitate meeting the Timetables upon suitable conditions of
confidentiality.


3.3.4                                  Vendor shall provide all
applicable Technical Support Services including but not limited to Updates and
Upgrades to and for the Software installed in the Test Bed Laboratory.


3.4                     Shipment


Vendor
shall ensure that all Software constituting a EMS/NMS (for the required
configuration) and/or any other software related to DLC are shipped in a single
shipment. Vendor shall not ship Software constituting only a part of the above
element(s) except after prior written approval from Reliance.


 


3

















 


3.5                     Material and Inventory
Management Systems


Vendor
shall take all reasonable actions necessary to ensure that Vendor’s material
& inventory management system integrates and interfaces with Reliance’s
material & inventory management system. The extent of integration and
interfacing shall be as mutually agreed.


3.6                     Applicability


Parties agree that all Purchase Orders for
Software issued by Reliance to Vendor on or after September 1, 2002 shall be
subject to and governed by this Broadband Access Software Contract. The Parties
further agree that Purchase Order number 13008681 dated August 21, 2002 shall,
except for payment terms, performance bank guaranty related terms, annual price
improvement related terms and deemed Acceptance related terms, also be governed
by the terms of this Broadband Access Equipment Contract.


 


4                      SOURCE CODE ESCROW


4.1.1                                  Vendor
represents and warrants that as of the date hereof, neither Vendor nor any of
Vendor’s affiliates has established a Source Code escrow for any of its
existing customers.  In the event that
Vendor or any affiliate of the Vendor establishes a Source Code escrow in the
future which applies to any of the Software furnished to Reliance hereunder,
Vendor shall add, or cause the affiliate that establishes a Source Code escrow
to add, Reliance as a beneficiary of such Source Code escrow, and Reliance
shall be entitled to receive a copy of the escrowed Source Code in the event of
the occurrence of any of the events set out below.  In addition to the foregoing, Vendor shall immediately deliver and hereby grants, or cause the affiliate that
establishes a Source Code escrow to immediately deliver and grant, Reliance a right to access the Source Code and
to modify the Software (the “RTM License”) for the maintenance,
enhancement and support of those Products purchased from Vendor and owned or
operated by Reliance or any Affiliate under the following circumstances,
provided that any such released Source Code shall be subject to the
confidentiality provisions set forth in the General Terms:


a                                          if Vendor or any affiliate of Vendor that owns or controls such Source
Code (such affiliate the “Control Affiliate”) becomes insolvent, makes a
general assignment for the benefit of creditors, files a voluntary petition in
bankruptcy or an involuntary petition in bankruptcy is filed against Vendor or
the Control Affiliate which is not dismissed within thirty (30) days of such
involuntary filing, or a receiver is appointed for its business, or its assets
become subject to any proceeding under a bankruptcy or insolvency law, domestic
or foreign, or has liquidated its business, or Vendor, or a business unit or
affiliate of Vendor that is responsible for maintenance of the Software, ceases
doing business without providing for a successor, and Reliance has reasonable
cause to believe that any such event shall cause Vendor to be unable to meet
its warranty service or support requirements under the Documents; or


 


4

















 


b                                         if
Vendor or affiliate of Vendor that is responsible for maintenance of the
Software ceases to maintain or support a previously supported version of the
Software and Reliance cannot obtain, with Vendor’s assistance (for example, by
providing a third party with Source Code or by any other appropriate method)
the same support services Vendor is required to provide under the Documents
from another entity (either working with or independently from Vendor) at a
price that is equal to or less than the prices for such support as provided
herein, or there is a persistent and material failure by Vendor to provide the
warranty service or support it is required to provide pursuant to the terms of
the Documents.


5                      MALICIOUS
AND DISABLING CODE


Vendor represents, warrants and covenants that all Software will at all
times be free of Malicious Code and Disabling Code. Vendor shall provide
Reliance with procedures and capabilities in order to allow Reliance to
re-assign Software key codes or similar items whose purpose is to enable the
functioning of further features, functions or capacity within and among Network
Elements in connection with changing the capacity of such Network Elements
purchased throughout the Broadband Access Reliance Network. In the event of any
breach of the foregoing warranty Vendor shall, at no additional charge to
Reliance, diligently take all commercially reasonable efforts to: (a) remove
such Malicious Code and Disabling Code and restore or recover all data and
information lost due to the Malicious Code or Disabling Code; and (b) reimburse
Reliance for all damage proximately caused by the Malicious Code or Disabling
Code.


6                      TERM


The
initial term of this Broadband Access Software Contract is ten (10) years from
the Effective Date, subject to the terms and conditions of this Broadband
Access Software Contract including, without limitation, the termination
provisions set forth in Section 9. This 
Broadband Access Software Contract shall upon the mutual written
agreement of the Parties, be renewed for three (3) immediately consecutive
one-year periods on the same terms and conditions contained herein.


7                      PRICING AND INVOICING


7.1                     Price List


7.1.1                                  The prices as set forth in
the Price List shall be applicable to all purchases by Reliance of Software.


7.1.2                                  Vendor shall notify Reliance
in writing in the event Vendor proposes to modify the Price List and Reliance’s
prior written consent shall be required before any such modification shall take
effect.  The Price List shall be amended
from time to time to add software, test bed and documentation as agreed by the
Parties.


7.1.3                                  Anything to the contrary in
the Documents notwithstanding, at no time will Reliance be liable to pay a
[***] for any Software in excess of the [***].


 


5

















 


7.2                     Determination of Net Price


[***].


7.3                     Invoicing Terms


All Software purchased by Reliance that forms
a part of the Initial Broadband Access Reliance Network shall be invoiced as
set forth in this Section and paid in accordance with Section 13 of the General
Terms.


 


[***].


 


7.4                     Invoicing Terms for all
other Softwares:


All
Software purchased by Reliance that forms a part of Expansions shall be
invoiced as set forth in this Section and paid in accordance with Section 13 of
the General Terms.


 


[***].


 


7.5                     Currency and Mode of
Payments


7.5.1                                  The value of all Software
purchased by Reliance under this Broadband Access Software Contract shall be
computed based on Net Prices expressed in [***] in accordance with the
provisions of the General Terms, unless otherwise agreed by the Parties.


7.5.2                                  All payments shall be
payable by wire transfer.


 


7.6                     Total Cost Basis


Vendor
represents, warrants, and covenants that, with respect to all Software sold or
offered for sale for importation into the Republic of India, the Net Prices for
the same shall be the [***].


8                      WARRANTIES


8.1                     Software Warranty.


8.1.1                                  The Vendor warrants that,
during the Product Warranty Period, all Software shall conform with and perform
in accordance with the Specifications and shall be free from Defects and
Deficiencies (the “Software Warranty”).


8.1.2                                  During the Product Warranty
Period, Vendor shall provide the warranty services described in this Section
8.1 and the Documents at no additional cost to Reliance.


Reliance
shall receive all base Software releases and, Software Major/Minor Releases,
Software Upgrades, Updates, Bug-Fixes, Software & Firmware Patches,
Software Updates, New Software Releases, Software Combined Releases, New
Features & all other Releases of Software furnished by Vendor at such times
as they become generally available to the Vendor’s


 


 


6

















 


customers.  Reliance shall also be entitled to receive
all optional Software features, at no additional cost during the Product
Warranty Period. The Vendor shall give Reliance an advance notice of the
introduction of any Software Upgrade Release, any Software Combined Release or
any Software releases containing any optional Software Release features.


 


8.2                     Breach of Warranties.


8.2.1                                  In the event of any breach
of the Software Warranty, the Vendor shall promptly repair or replace the
defective or nonconforming Software or otherwise cure any Defects and
Deficiencies so that the Software and Broadband Access Reliance Network shall
perform in accordance with the Specifications. Vendor’s obligations with
respect to Software shall be first to attempt to repair or replace at no
additional cost, any Defective Software, using software updates, upgrades,
patches, bug fixes in accordance with the provisions of hereunder and as
specified in Annexure 1A to the Specifications (Technical Support Services). In
the event that the Vendor is unable to or refuses to repair or replace or
correct Defective Software, Reliance may in addition to exercising any other
remedies available to it under the contract, law and/or equity, at its option :


 


(i)                                     elect to have
such Defective Software, replaced, repaired or corrected by any third party,
and Vendor shall in such an event (a) provide all technical details,
documentation, and other information required for such repair replacement or
correction; and (b) reimburse Reliance for all direct costs incurred in
connection with such repair replacement or correction; and/or


(ii)                                  elect to have
the Vendor provide (a) a credit or refund based on the original purchase price
of such Defective Software, as the case may be; and/or


 


8.2.2                        The warranty
period for all repaired, replaced or corrected Software shall be the longer of
:


 


[***].


 


8.2.3                        Notwithstanding
the foregoing, the Vendor shall have no liability pursuant to this
Section 8.2 for:


[***]


except
when any such damage or Deficiencies is done, made or caused by Vendor or any
Subcontractor or their employees or agents.


8.3                     Correction of Software


8.3.1                                  In the event of a breach of
the Software Warranty, the Parties shall follow the procedures set forth in the
Specifications. Reliance will notify the Vendor upon occurrence of any breach
of warranty within a reasonable time period.


 


 


7

















 


8.3.2                                  In the event that the remedy
of any breach of the Software Warranty requires the installation or provision
of additional equipment, Software Updates, Upgrades or Combined Release and/or
services, the Vendor shall provide such equipment, software and/or  perform such services on Site, at no cost or
expense to Reliance, except as otherwise expressly provided in the
Specifications and the shall be performed by the Vendor at Site, without
disrupting the operation of the Reliance, Network or any part thereof. Reliance
shall allow the Vendor to inspect the Equipment, Software, or the Network, as
the case may be, on-site in order to effect the necessary repairs.


8.3.3                                  During the Product Warranty
Period and the period that the TSS is in effect, the Vendor shall be solely
responsible for all costs and expenses associated with: (a) correcting of defective
Software, and (b) all on-site and off-site corrective activities for Software
as set forth in the Specifications.


 


8.4                      Other Services To Be
Provided By The Vendor Under Warranty Services-


During
the Product Warranty Period, in addition to the warranty obligations described
hereunder, the Vendor shall also provide, at [***] to Reliance, all services as
set forth in Annexure 1A to the Specifications.


 


8.5                      Third Party Provider
Warranties.


a)               With respect to Software
furnished by any Third Party Provider (excluding Subcontractors), all  warranties given to the Vendor by such Third
Party Provider shall inure, to the extent applicable or permitted by law, to
the benefit of Reliance, and Reliance shall have the right, at its sole
discretion, to enforce such warranties directly and/or through the Vendor.  All warranties with respect to such Software
provided by such Third Party Providers shall be given to Reliance  on a pass-through basis.


b)              The Vendor shall be
responsible for monitoring and managing of all warranties and warranty services
provided by Third Party Providers if required, by mutual agreement between the
Parties.  In the event of any dispute
with respect to either identifying or resolving any problems or defects or
their root cause in the Network, the Vendor shall be responsible to establish
the co-ordination among all Persons connected to such problems/defects and
establish the process of problem resolution and ensure an early solution.


8.6                     Disclaimer


The
foregoing warranties are in lieu of all other express and implied warranties of
merchantability and fitness for a particular purpose.


9                      TERMINATION
AND EVENTS OF DEFAULT


9.1                     Reliance’s Right of
Termination.


9.1.1                                  Reliance may suspend all or
any portion of this Broadband Access Software Contract  in accordance with the terms of
Section 3.15 of the General Terms.


 


 


8

















 


Reliance also has the right
to terminate all or any portion of this Broadband Access Software Contract upon
the occurrence of any Vendor Event of Default in accordance with the terms of
Section 23.1 of the General Terms.


 


9.2                     Vendor’s Right of
Termination.


The Vendor shall have the option to suspend or terminate this Broadband
Access Software Contract in accordance with the terms of Section 23.2 of
the General Terms.


*  * 
*  *  *


 


 


 


 


 


9

















 


RELIANCE AND THE VENDOR HAVE READ
THIS BROADBAND ACCESS SOFTWARE CONTRACT INCLUDING ALL SCHEDULES AND EXHIBITS
HERETO AND AGREE TO BE BOUND BY ALL THE TERMS AND CONDITIONS HEREOF AND
THEREOF.


IN
WITNESS WHEREOF, the Parties have executed this Broadband Access Software
Contract as of the date first above written.


 


 


	
   

  	
  RELIANCE
  INFOCOMM LIMITED

  
	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Prakash C. Bajpai

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  S. Ramesh

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  UTSTARCOM INC.,

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Michael J. Sophie

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 


 


 


 


10

















ANFTTB Software Price
List


 


[***]