STRICTLY CONFIDENTIAL

 

 

 

 

 

 

 

 

 

BROADBAND ACCESS NETWORK GENERAL TERMS AND CONDITIONS

 

 

between

 

 

RELIANCE INFOCOMM LIMITED,

“Reliance”

 

 

and

 

 

UTSTARCOM INC.,

“Vendor”

 

 

 

 

 

 

 

Dated as of October 1, 2002

 

 

 

 

Table of Contents

 

Section 1.	BACKGROUND
1.1	The Reliance Vision
1.2	General Terms
1.3	Contracts
1.4	Purchase Orders
1.5	Procedures Manual
1.6	Priority
Section 2.	DEFINITIONS AND INTERPRETATION
2.1	Definitions
2.2	Interpretation
Section 3.	SCOPE OF WORK AND RESPONSIBILITIES
3.1	Overview
3.2	Work Not Described Elsewhere
3.3	Task Orders for Services
3.4	Continuous Improvement
3.5	Termination Assistance Services
3.6	Exclusivity
3.7	Use of Third Parties
3.8	Vendor Developments
3.9	Right of Inspection
3.10	References to Certain Sources
3.11	Review of Documents
3.12	Eligibility under Applicable Laws and Applicable Permits
3.13	Liens and Other Encumbrances
3.14	Vendor To Inform Itself Fully; Waiver of Defense
3.15	Reliance's Right to Suspend Work
3.16	Forward Price Assurance
3.17	Third Party Contracts
3.18	Network Integration
3.19	Not used
3.20	Sales to Competitors
3.21	Insurance
Section 4.	SITES, SOFTWARE AND EQUIPMENT
4.1	Sites
4.2	Software and Equipment
4.3	Updates and Upgrades
Section 5.	PERFORMANCE WARRANTY AND LIQUIDATED DAMAGES
5.1	Special Provisions for Substantial Completion:
5.2	Performance Certification
5.3	Problem Analysis
5.4	Continuous Improvement Reviews
5.5	Satisfaction Surveys

 

 

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5.6	Performance Failure
5.7	Liquidated Damages
Section 6.	PROJECT PERSONNEL
6.1	Key Personnel
6.2	Approval of Key Personnel
6.3	Continuity of Key Personnel
6.4	Vendor Program Manager
6.5	Vendor Personnel Are Not Reliance, Reliance Affiliate or User Employees
6.6	Replacement, Qualifications, and Retention of Vendor Personnel
6.7	Reliance Approval of Vendor Personnel
6.8	Union Contracts and Applicable Laws
Section 7.	VENDOR'S RESPONSIBILITIES
7.1	Committees and Meetings
7.2	Documentation and Records
7.3	Reports
7.4	Meetings
7.5	Quality Assurance
7.6	Architecture, Standards and Information Technology and Telecommunications Planning
7.7	Time, Date and Location Processing Compliance
7.8	Access to Specialized Vendor Skills and Resources
7.9	Standby Letter of Credit
7.10	Planning
7.11	Disaster Recovery
Section 8.	RELIANCE RESPONSIBILITIES
8.1	Responsibilities
Section 9.	AFFILIATES
9.1	Affiliates
9.2	Affiliate Rights and Obligations
Section 10.	SUBCONTRACTORS
10.1	Subcontractors
10.2	Vendor's Liability
10.3	Assignability of Subcontracts to Reliance
10.4	Subcontractor Insurance
10.5	Vendor Warranties
10.6	Payment of Subcontractors
Section 11.	TERM
Section 12.	CHARGES
12.1	General
12.2	Volume/Trade Discount
12.3	Third Party Fees
12.4	Expenses
12.5	Proration
12.6	Reliance Benchmarking Reviews
12.7	Annual Price Improvement

 

 

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12.8	Rate Review
12.9	Anti-Backsliding
12.10	Extraordinary Events
12.11	Audit Rights
12.12	Asset Register
12.13	Price Reduction
12.14	Reliance Policies and Procedures
Section 13.	INVOICING AND PAYMENT
13.1	General
13.2	Invoicing
13.3	Credits
13.4	Payment Due
13.5	Disputed Charges
13.6	Stale Invoices
Section 14.	ORDERING AND DELIVERY
14.1	Forecasts of Products and Services
14.2	Ordering
14.3	Change Orders
14.4	Delivery
14.5	Cancellation
14.6	No Payment in Event of Material Breach
Section 15.	INTELLECTUAL PROPERTY
15.1	License Grants
15.2	Ownership Rights
15.3	Vendor Disclosure and Cooperation
15.4	Marks
15.5	Required Consents
15.6	Intellectual Property Warranties
15.7	Infringement
15.8	Survival
Section 16.	TITLE AND RISK OF LOSS
16.1	Title
16.2	Risk of Loss
Section 17.	FORCE MAJEURE
Section 18.	TAXES, DUTIES, OTHER LEVIES OR INCIDENTAL CHARGES
Section 19.	DISCONTINUATION AND TECHNOLOGY FORECAST
19.1	Discontinuation
19.2	Technology Forecast
Section 20.	INDEMNIFICATION AND LIABILITY LIMITATION
20.1	Vendor Indemnity
20.2	Reliance Indemnity
20.3	Liability
20.4	Limitation on Liability

 

 

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20.5	Damages for Fraud, Gross Negligence or Willful Misconduct
20.6	Claims Procedure
Section 21.	REPRESENTATIONS AND WARRANTIES
21.1	Representations and Warranties of the Vendor
21.2	Bring Down
21.3	Representations and Warranties of Reliance
21.4	Bring Down
Section 22.	DISPUTE RESOLUTION
22.1	Interpretation
22.2	Negotiation
22.3	Arbitration
Section 23.	TERMINATION AND EVENTS OF DEFAULT
23.1	Reliance's Right of Termination
23.2	Vendor's Right of Termination
23.3	Continuing Obligations; Survival
Section 24.	MISCELLANEOUS
24.1	Amendments
24.2	Offset
24.3	Assignment
24.4	Notices
24.5	Independent Contractor
24.6	Inducements
24.7	Headings
24.8	Severability
24.9	Waiver
24.10	Public Statements
24.11	Records and Communications
24.12	Specifications
24.13	Financing Parties Requirements
24.14	Confidentiality
24.15	Entirety of Contract; No Oral Change
24.16	Publicity
24.17	Change of Control of the Vendor
24.18	Non-Recourse
24.19	Further Assurances
24.20	Counterparts
24.21	Time is of the Essence
24.22	Construction
24.23	Improvements, Inventions and Innovations

 

 

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EXHIBIT

 

Exhibit A

Specifications (Including Annexures)

 

 

 

 

SCHEDULES

 

Schedule 1	-	Not Used
Schedule 2	-	Insurance
Schedule 3	-	Reliance Policies
Schedule 4	-	Pro-Forma Purchase Order
Schedule 5	-	Form of Performance Security
Schedule 6	-	Feature and Function Availability

 

 

 

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BROADBAND ACCESS NETWORK GENERAL TERMS AND CONDITIONS

 

These Broadband Access Network General Terms and Conditions (the “General Terms”) are 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 380006, 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 expressions, 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 has obtained the following licenses from the Department of Telecommunications, Ministry of Communications, Government of India:

(i)                                     national long distance operation;

(ii)                                  basic telephone services in seventeen (17) telecom circles in India; and

(iii)                               International long distance operations

that can be used for transporting voice, video and data telecommunications in India.

 

(b)                                 Vendor has represented that it has the requisite knowledge, expertise, technical know-how, experience, resources, infrastructure and intellectual property for the design, manufacture, development, procurement, installation, configuration, integration, operations, management, maintenance and administration of all Products and Services contemplated by the Documents.

 

(c)                                  The Parties desire to establish a master set of general terms and conditions that shall govern all hardware, software and services provided by or for Vendor to Reliance and the Users as hereinafter set forth.

 

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:

SECTION 1.                 BACKGROUND

1.1  The Reliance Vision.

1.1.1           Reliance desires to construct a telecommunications network in the Republic of India and to provide advanced optical, wireless and wireline voice, video and data services across the Republic of India and throughout other areas of the world, either directly to its end customers or through services resold by

 

 

other telecommunications carriers. Reliance and its Affiliates have been providing GSM mobile wireless services in seven (7) telecommunications circles and basic telecommunications services in one (1) telecommunications circle.  Reliance and its Affiliates have placed fiber-optic cable along rights of way and desire to sell certain strands of “dark” fiber capacity and to “light” the remaining fiber-optic cable by attaching optical-electronic equipment in order to create a telecommunications traffic transport network throughout India.  This fiber-optic network will serve as a “backbone” to which Reliance will interconnect various wireless and wireline networks, switching equipment and monitoring, management and administrative systems to create an integrated telecommunications network.

1.1.2                                  Reliance has received authority to provide basic local and long distance services in India. Using appropriate wireless and wireline technologies Reliance seeks to provide basic local telecommunications services.  Reliance seeks to develop a backbone network that will provide national long distance services, high capacity access for business customers and points of interconnection to local loops. Finally, Reliance seeks to interconnect its integrated network with those of other telecommunications providers.

1.1.3                                  Reliance’s objective is to implement this integrated network such that it can provision, transport, monitor, manage, maintain and administer all types of telecommunications traffic.  As a result, the network envisioned by Reliance also includes network operations centers (“NOCs”) to constantly monitor the status of the network, and a full suite of software support systems (e.g., enterprise, operations and billing) to permit Reliance to provide all its anticipated voice, data and enhanced services efficiently, to monitor the services being provided and to invoice its customers on an accurate and timely basis for such services.  Reliance will also require optimization and maintenance services to ensure the network provides the levels of service demanded by Reliance’s potential customers.

1.1.4                                  In summary, Reliance desires to retain the services of appropriate contractors to provision, build, operate, manage, maintain and administer the Broadband Access Reliance Network and associated operations, billing and Enterprise support systems.  Such services may include the following:

(a)                                  Design of some sections of the Broadband Access Reliance Network and confirmation of the designs already developed by Reliance;

(b)                                 Engineering of the various sections of the Broadband Access Reliance Network;

(c)                                  Supply of equipment for the Broadband Access Reliance Network;

(d)                                 Supply of software for the Broadband Access Reliance Network;

(e)                                  Installation of equipment;

 

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(f)                                    Installation of software;

(g)                                 Commissioning of the sections of the Broadband Access Reliance Network for service;

(h)                                 Optimization of the sections of the Broadband Access Reliance Network;

(i)                                     Construction, provisioning, configuration, operation, management and maintenance of NOCs, including the Wireless NOC and the Backbone NOC and the links to the NOCs and the integration of all Reliance and other customer and services provider products, networks and NOCs where requested by Reliance to assure Interoperability;

(j)                                     Management of integration of all Products supplied by Vendor with all products comprising the Broadband Access Reliance Network;

(k)                                  Interconnection of the Broadband Access Reliance Network with other networks;

(l)                                     Maintenance of the Broadband Access Reliance Network;

(m)                               Monitoring of the Broadband Access Reliance Network;

(n)                                 Implementation of, and integration of Vendor’s Products with, operational support systems (“OSS”), operational management systems (“OMS”), billing support systems (“BSS”) and enterprise support systems (“ESS”) for the Broadband Access Reliance Network; and

(o)                                 Project and program management for the entire process.

1.1.5                                  Reliance has disclosed the implementation plans of the program to Vendor and Vendor acknowledges that it is fully aware of the technical details and Timetables of the program and the requirements of and Specifications for the Equipment, Software and Services required to achieve the goals, objectives and purposes set forth in the Documents.  As a result, Reliance and Vendor have negotiated the Documents to describe the contractual rights and responsibilities between Reliance and Vendor with respect to the implementation of the Broadband Access Reliance Network, as it evolves and continuously improves during the Term.  Vendor is skilled and experienced in, and desires to provide, these services to Reliance in accordance with the provisions and the objectives set forth herein.

1.2  General Terms.

During the Term, Vendor shall offer to Reliance and Reliance may obtain from Vendor, certain Equipment, Software and Services in accordance with the terms and conditions set forth in the Documents.  The Parties desire to enter into these General Terms to define the

 

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terms and conditions that shall govern their relationship, allocate certain responsibilities and provide certain price preferences and other incentives that shall apply to all Equipment, Software and Services purchased by or for Reliance from the Vendor.  The General Terms do not obligate Reliance to purchase any specific equipment, software or services except as otherwise set forth in the Documents.  The Vendor shall not and these General Terms do not impose any condition on Reliance to purchase any equipment, software or services as a precondition to sale, purchase or supply of any other equipment, software or services required by the Documents. The Vendor shall provide all Products and Services to Reliance pursuant to and in accordance with the Specifications, these General Terms and other applicable Documents.  Except to the extent a contrary intent is set forth herein, all Products and Services shall be subject to Acceptance Testing in accordance with the applicable Acceptance Tests as set forth in the Specifications.

1.3  Contracts.

Vendor shall provide Equipment to Reliance pursuant to a Broadband Access Equipment Contract (the “Broadband Access Equipment Contract”). Vendor shall provide Software to Reliance pursuant to a Broadband Access Software Contract (the “Broadband Access Software Contract”). Vendor shall provide Services to Reliance pursuant to a Broadband Access Services Contract (the “Broadband Access Services Contract”). Each of the Broadband Access Equipment Contract, the Broadband Access Software Contract and the Broadband Access Services Contract is a “Contract” and collectively are the “Contracts.”

1.4  Purchase Orders

Reliance shall only be obligated to pay for Equipment, Software and Services provided by or for the Vendor pursuant to, and in accordance with, each Purchase Order.  Reliance shall be permitted to modify the form of Purchase Order and Task Order in its discretion if it is necessary to do so.

1.5  Procedures Manual

1.5.1                                  As part of the Work, and at no additional cost to Reliance, Vendor shall deliver to Reliance for its review, comment and approval (a) an outline of a Procedures Manual within [***] following the Effective Date of each Contract, and (b) a final draft of such Procedures Manual at least [***] prior to the Commencement Date of each Contract; provided, that Vendor shall in all events have a minimum of [***] in which to deliver such final draft to Reliance.  At a minimum, the Procedures Manual shall include all information typically addressed by Vendor in its Procedures Manuals and the following:

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1.5.2                                  Vendor shall perform the Work in accordance with the Documents.  The Procedures Manual shall be delivered and maintained by Vendor in both Microsoft Word and web-based HTML/XML format.  Paper copies of the Procedures Manual shall be delivered, and electronic copies of the Procedures Manual shall be emailed, to Reliance designated personnel upon

 

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the completion of each draft, when finalized by the Parties and whenever the Procedures Manual is subsequently updated or otherwise modified.  Vendor shall promptly modify and update the Procedures Manual to reflect changes in the operations or procedures described therein, and shall provide the proposed changes in the manual to Reliance for review, comment and written approval.

1.6  Priority.

In the event of a conflict between these General Terms and any other document, the following order of priority shall be applied:

1.                                       General Terms, supersede;

2.                                       Contracts, which supersede;

3.                                       Specifications, which supersede;

4.                                       Purchase Orders, which supersede;

5.                                       the Procedures Manual.

provided, (a) that in the event of a conflict or inconsistency between any schedule or exhibit or an attachment to the General Terms or any Contract, the General Terms or the concerned Contract, as applicable, shall prevail; (b) that in the event identical defined terms are provided for in two or more Documents, the term as defined in any such Document shall control as to such Document (e.g., the “Effective Date” as defined in any Contract shall be the effective date applicable to such Contract) and (c) that in the event the Net Price for any Product or Service, when calculated under the terms of the General Terms or terms of any agreement results in different Net Prices, Reliance shall in all events be charged the lowest Net Price so determined.

SECTION 2.         DEFINITIONS AND INTERPRETATION

2.1  Definitions.

As used in the Documents, capitalized terms shall have the meaning set forth herein, or if there is no express definition set forth herein, the meaning set forth in an applicable Document.

“Acceptance” or “Accepted”

the successful completion of all of the Acceptance Tests and requirements as set forth in the Documents in respect of the Broadband Access Reliance Network or any relevant portion thereof. In the event that the Acceptance Tests as set forth in the Documents in respect of any Products have not been completed within [***] after the delivery of such Products due to reasons attributable to Reliance under the responsibility matrix set forth in the Specifications then such Products shall be deemed to have achieved Acceptance on the expiry of such [***] period.

 

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“Acceptance Certificates”

those written certificates provided by Reliance to the Vendor evidencing Reliance’s Acceptance of the Products, Services and the Initial Broadband Access Reliance Network or the Broadband Access Reliance Network or any relevant portion thereof pursuant to and in accordance with the Specifications and the Performance Criteria. With respect to Expansions, Reliance shall provide Vendor with Acceptance Certificates once every calendar month setting forth the Products that have achieved Acceptance during the preceding calendar month.

“Acceptance Tests” and “Acceptance Testing”

the collective reference to the performance and reliability demonstrations and tests relating to acceptance set forth in the Specifications.

“Ad Hoc Reporting Baseline”

has the meaning ascribed thereto in Section 7.3.

“Ad Hoc Reports”

has the meaning ascribed thereto in Section 7.3.

“Additional Reports”

has the meaning ascribed thereto in Section 7.3.

“Affiliate”

means, with respect to any Person, any other Person directly or indirectly Controlling, Controlled by, or under direct, indirect or common Control with, such Person. For the purposes of this definition of “Affiliate,” “Control,” “Controlled” or “Controlling” shall mean, with respect to any Person, any circumstance in which such Person is controlled by any other Person by virtue of the latter Person controlling the composition of the board of directors or managers or owning the largest or controlling percentage of the voting securities or interests of such Person or otherwise.  For the avoidance of doubt it is clarified that a mere holding by a Person of the largest percentage of the voting securities or interest of another Person shall not make the latter an Affiliate of the former under this definition unless it also controls the latter Person.

“Annual Price Improvement”

a discount calculated on the lowest Net Price paid or payable for any given Product in the previous [***] period in which Reliance has purchased such Product, to determine the Net Price applicable to purchases of such Product by Reliance in succeeding [***] periods as set forth in the table below.  Such discounts shall be applied on a compounding basis.

 

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“Applicable Laws”

as to any Person, the certificate of incorporation and by-laws or other organizational or governing documents of such Person, all domestic and foreign laws (including, but not limited to, any Environmental Laws), treaties, ordinances, judgments, decrees, injunctions, writs, orders and stipulations of any court, arbitrator or governmental agency or authority and statutes, rules, regulations, orders and interpretations thereof of any federal, state, provincial, county, municipal, regional, environmental or other Governmental Entity, instrumentality, agency, authority, court or other body (i) applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject or (ii) having jurisdiction over all or any part of the Broadband Access Reliance Network or the Work to be performed pursuant to the terms of the Documents.

“Applicable Permits” or “Permits”

any waiver, exemption, building, variance, franchise, permit, authorization, approval, license or similar order of or from any domestic or foreign, federal, state, provincial, county, municipal, regional, environmental or other Governmental Entity, instrumentality, agency, authority, court or other body having jurisdiction over all or any part of the Broadband Access Reliance Network or the Work to be performed pursuant to the terms of the Documents.

“Backwards Compatibility” or “Backwards Compatible”

means (i) with respect to all Updates, Upgrades and Combined Releases relating to Software, the ability of the greater of (A) each of the prior [***] Major Releases, or (B) the number of Major Releases issued by Vendor within a period of [***] prior to the integration into the Broadband Access Reliance Network of such Update, Upgrade and/or Combined Release relating to Software, to remain fully functional in accordance with and up to the performance levels to which each was performing immediately prior to the integration with such Update, Upgrade and/or Combined Release relating to Software, and the ability of such Update, Upgrade and/or Combined Release to Interoperate and be compatible with all such functionality of such prior Software versions and with all existing in-service Vendor provided Products already installed in the Broadband Access Reliance Network; (ii) with respect to all Updates, Upgrades and Combined Releases (to the extent of that portion of the Combined Release that is the Update or the use of whi