OF THE
PRODUCT TO UTSTARCOM IN LIEU OF THE WARRANTY SERVICE FOR THE PRODUCT.
CURITEL
SHALL NOT BE RESPONSIBLE FOR ANY OTHER WARRANTY SERVICE (EXCEPT ANY EPIDEMIC
FAILURE) FOR THE PRODUCT OTHER THAN THE SUPPLY OF [***] SPARE PART SET FORTH IN
THE PRECEDING SENTENCE.
12.2
EXCEPT FOR THE SECTION 12.1, CURITEL SHALL
QUARTERLY INVOICE ANY SPARE PARTS PROVIDED TO UTSTARCOM IN ACCORDANCE WITH
MARKET PRICE AT THAT TIME.
CURITEL WILL CONTINUE TO PROVIDE SPARE PARTS FOR
SUCH WARRANTY SERVICE BY UTSTARCOM AFTER EXPIRATION OF THIS AGREEMENT.
13.
Warranty Service.
13.1
UTSTARCOM SHALL BE RESPONSIBLE FOR THE WARRANTY
SERVICES WITH RESPECT TO THE PRODUCT EXCEPT ANY EPIDEMIC FAILURE.
EPIDEMIC
FAILURE SHALL MEAN THE SITUATION THAT WOULD EXIST IF [***] OR MORE OF THE TOTAL
UNITS OF THE PRODUCTS DELIVERED TO BUYER HEREUNDER DURING THE CONSECUTIVE [***]
PERIOD DEMONSTRATES A DEFECT IN MATERIAL WORKMANSHIP AND/OR DESIGN, OR FAILS TO
CONFORM TO THIS SPECIFICATION BECAUSE OF A IDENTICAL CAUSE EXCEPT FAULT OR
NEGLIGENCE OF THE USER, OR SHIPPER, OR IMPROPER USE OF THE PRODUCT, CURITEL'S
RESPONSIBILITY FOR THE EPIDEMIC FAILURE IS EFFECTIVE FOR [***] AFTER SHIPMENT OF
THE PRODUCTS.
CURITEL WILL BE RESPONSIBLE FOR ALL COSTS AND EXPENSES IN
CONNECTION WITH HE EPIDEMIC FAILURE.
13.2
IF CURITEL ESTABLISHES ITS OWN WARRANTY SERVICE
FACILITIES IN UTSTARCOM'S EXCLUSIVE TERRITORIES FOR ITS PRODUCT AFTER EXPIRATION
OF THIS AGREEMENT, UTSTARCOM WILL COOPERATE AND ASSIST CURITEL IN THIS ENDEAVOR,
PROVIDED CURITEL CONTINUES TO PROVIDE SPARE PARTS TO UTSTARCOM.
14.
Agreement Term and Termination.
14.1
THIS AGREEMENT SHALL BE VALID FOR A PERIOD OF
[***] FROM THE SIGNATURE OF THIS AGREEMENT.
14.2
UTSTARCOM SHALL SUPPORT CURITEL TO ESTABLISH A
DIRECT SALES OPERATION FOR ITS PRODUCTS IN THE TERRITORY.
SUCH SUPPORT SHALL
INCLUDE, BUT NOT LIMITED TO [***].
IF UTSTARCOM FAILS TO DO THIS OR DELAYS TO
PROVIDE SUCH SUPPORTS, CURITEL SHALL BE ENTITLED TO CLAIM AGAINST UTSTARCOM.
THIS WILL INCLUDE TO MAKE NULL AND VOID FOR THE EXCLUSIVITY ABOVE CLAUSE 1.
14.3
FOR THE AVOIDANCE OF DOUBT, CURITEL SHALL BE
ENTITLED TO SELL OR DISTRIBUTE, DURING THE TERM OF THIS AGREEMENT, IN THE
TERRITORY ANY TERMINALS THAT SHALL NOT BE SPECIFIED IN EXHIBIT A ATTACHED HERETO
AND DESCRIBED IN ARTICLE 2.
15.
Limitation of Liability; Governing Law.
15.1
LIMITATION OF LIABILITY. NEITHER PARTY SHALL HAVE
ANY LIABILITY FOR ANY LOSS OF PROFIT OR OTHER COMMERCIAL DAMAGE, INCLUDING,
WITHOUT LIMITATION: INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE
DAMAGES OF ANY KIND; LOSS OF, OR DAMAGE TO, UTSTARCOM'S OR ANY END USER'S
RECORDS OR DATA; OR LOSS OF REVENUE,
4
LOSS OF BUSINESS OR OTHER FINANCIAL LOSS ARISING OUT OF OR IN CONNECTION WITH
ANY PRODUCTS SOLD OR LICENSED BY CURTAIL TO UTSTARCOM OR TO ANY END USER OF
PRODUCTS, EVEN IF CURTAIL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
15.2
WITHOUT LIMITING THE FOREGOING, EACH PARTY'S
TOTAL LIABILITY TO THE OTHER PARTY UNDER THIS AGREEMENT WILL BE LIMITED TO THE
PAYMENTS MADE BY UTSTARCOM UNDER THIS AGREEMENT IN THE
[***] IMMEDIATELY
PRECEDING THE EVENT WHICH GAVE RISE