**Exhibit 10.104**

 

**[***].  Confidential Treatment Requested – Certaininformation in this exhibit has been omitted and filed separately with theCommission.  Confidential treatment hasbeen requested with respect to the omitted portions.**

 

**AGREEMENT**

 

December 20th, 2004

 

Curitel Communications, Inc. (hereinafter called “Curitel”)and UTStarcom Personal Communications LLC (hereinafter called “UTStarcom”)enter into this Agreement as of December 20th, 2004 according to thefollowing terms and conditions:

 

1.                                       Exclusivity.

 

## 1.1                                 Curitel appoints UTStarcom itsexclusive distributor for the sale of Curitel’s [***] terminal products setforth in the Exhibit A designed, engineered or produced by Curitel in[***] (the “Territory”).

 

## 1.2                                 Curitel will not provide any ofits products to [***] for selling them within the UTStarcom’s exclusiveterritory.

 

## 1.3                                 UTStarcom will consider Curitelas its preferred [***] supplier.

 

2.                                       Product.

 

Product models specified in Exhibit A are Subjectto carrier approval and competitive prices from Curitel.  Product model not specified in Exhibit Acould be sold through UTStarcom provided there is a pre-arranged agreement withcarrier and price, delivery term and other major issues mutually agreed byCuritel.

 

3.                                       Quantity.

 

## 3.1                                 UTStarcom shall purchase fromCuritel the total quantity exceeding [***] units subject to (a) theacceptable performance of product during trial by carriers and their approvalof user interface and to compliance with all technical issues; and (b) competitivepricing, timely delivery and satisfactory quality.

 

4.                                       Price.

 

## 4.1                                 The price for terminals on theattachment is based on one handset, one Standard Battery, one Charger andManual.

 

## 4.2                                 Price by model for 4th Quarterin Year 2004 is specified in Exhibit A.

 

## 4.3                                 Prices for 1st Quarter in Year2005 and thereafter shall be discussed and mutually agreed.

 

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## 4.4                                 UTStarcom’s final prices to thecarriers (hereinafter referred to the “Net Prices”) shall be the amount equalto [***].  All other Net Prices shall bemutually agreed by both parties.

 

5.                                       PaymentTerms.

 

## 5.1                                 UTStarcom shall make payment toCuritel for product model purchased under this Agreement by telegraphictransfer.  Every first day of the month,Curitel will send the invoice for that month’s total scheduled shipment andUTStarcom will make payment of [***] of the invoiced amount on that day.  At the time of every individual shipment,UTStarcom will also make payment for the [***] of its invoice amount of theshipped products within (3) days after receiving bill of landing thereofin US dollars.  Every last day of themonth, the balance of the prepaid [***] amount will be settled in a way thatUTStarcom makes payment for the differences if UTStarcom’s total payments inthat month falls short to the total shipped amount in that month.  Or UTStarcom will deduct the amount fromfollowing month’s [***] amount if there is any over paid amount in the previousmonth.

 

6.                                       Forecast/ Order Placement.

 

## 6.1                                 UTStarcom will provide Curitelwith [***] firm purchase order and [***] rolling forecast of its estimatedrequirements for products.

 

## 6.2                                 The above purchase order and therolling forecast shall be provided by the 10th of each month.

 

## 6.3                                 UTStarcom will update forecastson a monthly basis or more frequently.

 

## 6.4                                 The purchase order shall bedeemed to be confirmed in case Curitel fails to notify UTStarcom of objectionto such purchase order within 5 business days after receipt of it.

 

## 6.5                                 Both parties will discuss andshare risk for the long lead and unique components to be ordered by Curitelbefore approval of the products from the carriers model by model.  Curitel will provide the unique parts andlong-lead components list.  This listwill include the quantity and the unit price and the total amounts to bepurchased to meet the mass production requirement.

 

## 6.6                                 Subject to section 3.1,with respect to any surplus components or finished goods already ordered and/ormanufactured under the purchase orders of UTStarcom and for which Curitel isliable resulting from cancellation of firm purchase orders, UTStarcom will takeresponsibility as long as UTStarcom issued the purchase order.  This responsibility will include the purchaseof above quantity at the price of P/O sheet. Curitel, however, will use its best efforts to (1) reduce itsliability to its vendors by canceling orders for surplus components and (2) utilizesuch items in manufacturing elsewhere.

 

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7.                                       Delivery.

 

## 7.1                                 UTStarcom and Curitel will worktogether to ensure maximum flexibility in order delivery.  Product model will be shipped at CIP(IncoTerms 2000) to any port by air or sea freight, at UTStarcom’s option.

 

## 7.2                                 Curitel will be responsible forair freight charges in case that Curitel delivers the product after [***] fromagreed delivery date on the confirmed purchase order.

 

## 7.3                                 In the event delivery is delayedmore than [***] from agreed delivery date on the confirmed purchase order,UTStarcom will have the option to cancel or revise purchase order for thedelayed product model.

 

8.                                       Marketing.

 

## 8.1                                 UTStarcom shall providemarketing information per [***] to Curitel [***].  UTStarcom shall cause Curitel to build upmarketing channel with carriers directly and discuss for all the productplanning related issues.

 

9.                                       [***]

 

10.                                 FulfillmentFee.

 

## 10.1                           Curitel agrees to pay afulfillment fee to UTStarcom to be mutually negotiated based on prior feescharged for the after sales service to be rendered to Curitel’s products soldin the Territories.

 

## 10.2                           The fulfillment fee to cover anyand all the expenses, which will occur in connection with UTStarcom’s salesactivity, is included in the Net Prices (Net Price includes fulfillment fee).

 

## 10.3                           The fulfillment fee is paid onlyfor the complete set of [***] terminal product, which consists of handset, abattery and a desktop charger.

 

11.                                 BrandName.

 

## 11.1                           The products purchased byUTStarcom under this Agreement shall be sold under the co-brand name such asAudiovox-Pantech, provided, however, that if the carriers do not accept suchco-branding, UTStarcom will make best efforts for such co-brand name to bedisplayed on gift boxes, labels or other materials than handsets.

 

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12.                                 PartsAllowance.

 

## 12.1                           Curitel shall provide [***]spare part of the product to UTStarcom in lieu of the warranty service for theproduct.  Curitel shall not beresponsible for any other warranty service (except any Epidemic Failure) forthe product other than the supply of [***] spare part set forth in the precedingsentence.

 

## 12.2                           Except for the Section 12.1,Curitel shall quarterly invoice any spare parts provided to UTStarcom inaccordance with market price at that time. Curitel will continue to provide spare parts for such warranty serviceby UTStarcom after expiration of this Agreement.

 

13.                                 WarrantyService.

 

## 13.1                           UTStarcom shall be responsiblefor the warranty services with respect to the product except any EpidemicFailure.  Epidemic Failure shall mean thesituation that would exist if [***] or more of the total units of the Productsdelivered to Buyer hereunder during the consecutive [***] period demonstrates adefect in material workmanship and/or design, or fails to conform to thisspecification because of a identical cause except fault or negligence of theuser, or shipper, or improper use of the Product, Curitel’s responsibility forthe Epidemic Failure is effective for [***] after shipment of theproducts.  Curitel will be responsiblefor all costs and expenses in connection with he Epidemic Failure.

 

## 13.2                           If Curitel establishes its ownwarranty service facilities in UTStarcom’s exclusive territories for itsproduct after expiration of this Agreement, UTStarcom will cooperate and assistCuritel in this endeavor, provided Curitel continues to provide spare parts toUTStarcom.

 

14.                                 AgreementTerm and Termination.

 

## 14.1                           This Agreement shall be validfor a period of [***] from the signature of this agreement.

 

## 14.2                           UTStarcom shall support Curitelto establish a direct sales operation for its products in the Territory.  Such support shall include, but not limitedto [***].  If UTStarcom fails to do thisor delays to provide such supports, Curitel shall be entitled to claim against UTStarcom.  This will include to make null and void forthe exclusivity above clause 1.

 

## 14.3                           For the avoidance of doubt,Curitel shall be entitled to sell or distribute, during the term of thisAgreement, in the Territory any terminals that shall not be specified in Exhibit Aattached hereto and described in Article 2.

 

15.                                 Limitationof Liability; Governing Law.

 

## 15.1                           Limitation of Liability. NEITHER PARTY SHALL HAVE ANYLIABILITY FOR ANY LOSS OF PROFIT OR OTHER COMMERCIAL DAMAGE, INCLUDING, WITHOUTLIMITATION: INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES OFANY KIND; LOSS OF, OR DAMAGE TO, UTSTARCOM’S OR ANY END USER’S RECORDS OR DATA;OR LOSS OF REVENUE, 

 

## 4

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## LOSS OF BUSINESS OR OTHER FINANCIAL LOSSARISING OUT OF OR IN CONNECTION WITH ANY PRODUCTS SOLD OR LICENSED BY CURTAILTO UTSTARCOM OR TO ANY END USER OF PRODUCTS, EVEN IF CURTAIL HAS BEEN ADVISEDOF THE POSSIBILITY OF SUCH DAMAGES.

 

## 15.2                           WITHOUT LIMITING THE FOREGOING,EACH PARTY’S TOTAL LIABILITY TO THE OTHER PARTY UNDER THIS AGREEMENT WILL BELIMITED TO THE PAYMENTS MADE BY UTSTARCOM UNDER THIS AGREEMENT IN THE  [***] IMMEDIATELY PRECEDING THE EVENT WHICHGAVE RISE TO SUCH DAMAGES.

 

## 15.3                           Governing Law.  This Agreement shall be governed by andconstrued in accordance with the laws, other than choice of law rules, of theState of California.  All disputes whichmay arise between the parties, out of or in relation to or in connection withthis Agreement shall be finally settled by arbitration in Los Angeles, CA inaccordance with arbitration rules of ICC.

 
| Curitel Communications, Inc. | UTSTARCOM          |
|-----------------------------------|--------------------|
|                              |               |
|                              |               |
| By:                               | /s/ Moon Song      |   | By: | /s/ Philip Christopher |   |
|                              | Dr. Moon Song |   | Philip Christopher |
|                              | President and CEO  |   | President and CEO UTStarcom |
|                              |               | Personal Communication LLC |
|                                   |                    |  |  |  |  |

 

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**Exhibit A - AudioVox Year 2004 / 2005**

 

[***]

 

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