Revenue Sharing Purchase Agreement

EXHIBIT 10.95


[* * *]. 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.


REVENUE SHARING PURCHASE AGREEMENT (AMERICAS)


SELLER:

UTSTARCOM, INC.

PURCHASER:

MULTIDATA


Incorporation:

Delaware

Incorporation:

Honduras Republic


Address:

1275 Harbor Bay Parkway Alameda, California 94502

Address:

Boulevard Suyapa, Edificlo AHIBA Planta Baja, Tegucigalpa, Honduras


Attn:

Legal Department

Attn.

Jose9 Rafael Ferrari


Telephone:

(510) 864-8800

Telephone:

504 235-7635


Fax:

(510) 864-8802

Fax:

504 239-0075


Effective Date: October 21st, 2003


This REVENUE SHARING PURCHASE AGREEMENT, including all exhibits (" Agreement' ), is the entire agreement between the Parties concerning Purchaser' s purchase of the Products or Services (as defined below). This Agreement supersedes, and its terms govern, any prior agreements (including without limitation any nondisclosure agreements), proposals or other communications, oral or written, between the parties with respect to the Products or Services. This Agreement may be changed only by mutual written agreement of authorized representatives of the parties. This Agreement governs all documents (e.g., purchase orders) issued by PURCHASER with respect to the Products or Services and any additional or conflicting terms and conditions contained in any such documents are of no force and effect. In consideration of the mutual promises herein, UTSTARCOM and PURCHASER agree to be bound by this Agreement, including the following exhibits:


Exhibit A. Terms and Conditions

Exhibit B. Products, Services and Discounts

Exhibit C. Services Statement of Work

Exhibit D. Product and Service Purchase List for Each Phase of the Project

Exhibit E. Payment and Related Terms

Exhibit F. Form of Acceptance Certificate

Exhibit G. FCPA Policy

Exhibit H. EEA Policy


PURCHASER AGREES TO PURCHASE UTSTARCOM PRODUCTS AND/OR SERVICES FOR A TOTAL CONTRACT PRICE UP TO US[***] ([***] IN PHASE I OF THE PROJECT, [***] IN PHASE II OF THE PROJECT, [***] IN PHASE III OF THE PROJECT AND [***] IN PHASE IV OF THE PROJECT), DURING A PERIOD COMMENCING ON THE EFFECTIVE DATE ABOVE THROUGH OCTOBER 31, 2006 (SUCH PERIOD SUBJECT TO MUTUALLY AGREED UPON EXTENSIONS BY THE PARTIES), AS MORE FULLY DESCRIBED IN THE PRODUCT AND SERVICE PURCHASE LIST ATTACHED HERE AS EXHIBIT D. AS SET FORTH ON EXHIBIT D, IT IS ANTICIPATED THAT THE PROJECT THAT IS THE SUBJECT OF THIS AGREEMENT (THE " PROJECT" ) WILL INVOLVE FOUR PHASES OF PURCHASES. PURCHASES SHALL BE MADE BY PURCHASE ORDER PURSUANT TO THE TERMS AND CONDITIONS ATTACHED HERETO; HOWEVER, THIS CONTRACT BETWEEN PURCHASER AND UTSTARCOM CONSTITUTES A LEGALLY-BINDING OBLIGATION BY PURCHASER TO PURCHASE PRODUCTS AND/OR SERVICES DESCRIBED IN EXHIBIT D ON A PHASE BY PHASE DEPLOYMENT UP TO THE CONTRACT PRICE ABOVE OR ANY OF THE PHASES DESCRIBED IN EXHIBIT D.


1


PRIOR TO DEPLOYMENT OF EACH PHASE, PURCHASER AND UTSTARCOM WILL CONDUCT A BUSINESS REVIEW TO INCLUDE AND, OR MODIFY SUBSCRIBER DEMAND, TECHNOLOGY REQUIREMENTS AND DEPLOYMENT SCHEDULE. PLEASE REVIEW THE ATTACHED EXHIBITS, WHICH INCLUDE IMPORTANT LEGAL TERMS, SUCH AS LIMITATIONS OF WARRANTIES AND REMEDIES.


UTSTARCOM


PURCHASER


/s/ Rene Mendez


/s/ Jose Rafael Ferrari


Authorized Signature

Authorized Signature


Rene Mendez


Jose Rafael Ferrari


Printed Name

Printed Name


Vice President CA LA


President


Title

Title


October 21, 2003


October 21, 2003


Date

Date


2


EXHIBIT A TERMS AND CONDITIONS


This Agreement (including all exhibits) constitutes the entire agreement for the sale of UTStarcom PAS products (the " Products" ) and/or services (the " Services" ) by UTStarcom, Inc. (" UTStarcom" ) to you (" Purchaser" ). The Products and Services to be purchased hereunder are described in Exhibits B and C hereto. The terms and conditions in this Agreement will override and supersede any other documents issued by Purchaser, including purchase orders, unless expressly agreed to in writing by UTStarcom.


1. Ordering . Purchaser will order Products and/or Services by issuing a written purchase order to UTStarcom. It is anticipated that the project that is the subject of this Agreement will involve four phases of purchases (as described in detail in Exhibit D hereto), and that Purchaser will issue one purchase order to UTStarcom in connection with each phase. Orders are subject to acceptance by UTStarcom, which occurs upon delivery to Purchaser of an Order Acknowledgement form. If UTStarcom rejects an order due to insufficient revenues being generated to UTStarcom for the Project, then UTStarcom will extend to Purchaser the same pricing as stated in Exhibit D or the current market pricing under substantially similar business conditions; provided however, that Purchaser will be required to execute a new contract with UTStarcom' s standard payment terms and submit a new purchase order to UTStarcom pursuant to such new contact. Multidata can make changes in delivery schedule, including cancellation of all or any of the phases up to [ *** ] prior to the scheduled delivery, after this it will be subject to a rescheduling charge of [ *** ] of the net order value of the rescheduled portion of the order. Purchaser agrees that the Products purchased under this Agreement are not for resale, and that Purchaser is purchasing the Products for internal use by Purchaser in conducting its business operations. 2. Shipment . Delivery of Products is [ *** ] , such delivery to be made to a carrier/freight forwarder selected by UTStarcom unless otherwise specified by Purchaser. Other shipping arrangements specified by Purchaser may be made by UTStarcom for the actual cost of shipping [ *** ] . The [ *** ] will be calculated based on [ *** ] of the actual cost of shipping. Products will be packaged by UTStarcom in accordance with UTStarcom' s standard practices. Title, possession and risk of loss regarding the Products shall [ *** ] 3. Payment . 3.1 All Products and/or Services sold to Purchaser shall be paid for in accordance with the terms and conditions contained in Exhibit E to this Agreement. Exhibit E also sets forth certain terms and conditions which will protect the interests of UTStarcom until Purchaser pays UTStarcom in full for the Products and/or Services. 3.2 The purchase price for Products and/or Services does not include taxes and other charges, All taxes, including sales, use, privilege, excise or other taxes (other than taxes computed on the basis of the net income of UTStarcom), duties, assessments and other related charges levied by any jurisdiction, and shipping, handling, insurance, brokerage and similar fees pertaining to the Products and/or Services, shall be paid by Purchaser. [ *** ] 3.3 UTStarcom shall determine Purchaser' s credit limit from time to time at UTStarcom' s discretion, and Purchaser will provide to UTStarcom such financial information from time to time as may be reasonably requested by UTStarcom. If any order by Purchaser exceeds its credit limit, or Purchaser fails to make payments when due or otherwise defaults or commits a breach hereunder, UTStarcom may, effective immediately upon giving notice to Purchaser, (i) suspend credit and delay shipment until such terms are met, and/or (ii) alter the terms of payment: and/or (iii) cancel any order then outstanding and/or (iv) pursue any other remedies available by law or equity. Further, if Purchaser fails to pay any charges when due, UTStarcom may charge Purchaser a late pa ...