Exhibit 10.49
[*] 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.
CONTRACT
Contract No.: UTPAS-H22Kii1206 Project No.
The Buyer: The Seller:
Zhejiang Telecommunications Corporation, UTStarcom (China) Ltd.
Shaoxing Branch 11th Floor, CNT Manhattan Building,
No. 6 Chao Yang Men Bei Da Jie Street,
Beijing, 100027
Tel: 0575-5134567 Tel: (010)-65542030
Fax: 0575-5124855 Fax: (010)-65542058
This contract is made between the Buyer and the Seller, whereby the
Buyer agrees to buy and the Seller agrees to sell the under-mentioned
commodities according to the terms and conditions as stipulated hereinafter:
1. Total Contract Price: [*]
2. Name of Commodities: PAS Wireless Access System
(Please refer to the attached list for quantity, specifications
and unit price.)
3. Date of Shipment: [*].
4. Place of Destination: Shaoxing Telecommunications Corporation (He He
Qiao), Zhuji Telecommunications Bureau, Xinchang County
Telecommunications Bureau, Bianzhou Telecommunications Bureau and
Shangyu Telecommunications Bureau.
5. Packing:
The goods shall be packed in new strong cases suitable for long
distance transportation and well protected against dampness, moisture,
shook and rust. The Seller shall be liable for any damage to the goods
on account of improper packing.
6. Shipping Marks:
The Seller is required to mark clearly on the surface of each
package the package number, measurements and such cautions as "This
Side Up", "Handle with Care" and "Keep Away from Moisture" in unfading
ink and put on shipping marks.
7. Transportation:
7.1 [*] shall bear all the expenses and risks involved in the
handling of the goods until the moment when the goods have
officially been handed over to the relevant transportation unit
designated by the Buyer.
7.2 The transportation and insurance costs from Hangzhou or Huizhou
Railway Stations (or from the Sellers' warehouse, if shipped by
highway) to the place of destination designated by the Buyer
shall be borne by [*].
8. Acceptance of Goods:
8.1 Upon arrival of the goods, the Buyer shall check the goods
immediately in the presence of the Seller's representative and
sign on the shipping list as a certificate of acceptance of the
goods. If shipped by air, railway or postal service, the
carrier's shipping list shall serve as a certificate of
acceptance of the goods.
8.2 In case of missing parts or damages due to the Seller's improper
packing, the Buyer shall make a detail record, or commission the
China Commodity Inspection Bureau for a reexamination and
issuance of a certificate, or require the representatives of the
Buyer and the Seller to sign a memorandum to serve as a
certificate for the replacement of missed or damaged parts. If
the Buyer opens the cases by itself or fails to make a written
claim on missing or damaged parts within [*] upon arrival of the
goods, the Buyer shall be deemed to have accepted the goods.
9. Terms of Payment:
General Provisions:
If the payment by the Buyer to the Seller is made in [*], the
exchange rate shall be based on the average price of a given foreign
currency published by the People's Bank of China on the same day when
the Seller receives such payment.
The payment shall be made by T/T to Beijing Industry and Commerce
Bank of China, Chao Yang Branch, Ri Tan Lu Office, for the account
number [*].
9.1 Terms of Payment for the Equipment as Follows:
9.1.1 Amount Paid on Arrival of the Goods
[*] of the total contract price, or [*] shall be paid by
the Buyer within [*] upon arrival of the goods.
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9.1.2 [*] of the total contract price, or [*] shall be paid by
the Buyer within [*] upon connection and a test run of the
equipment.
9.1.3 [*] of the total contract price, or [*] shall be paid by
the Buyer within [*] upon certification of quality of final
test (The final test is set for [*] upon connection of the
equipment).
9.2 In the event that a payment required by Section 9.1 is not made
by the Buyer within the stipulated time, the Buyer shall pay to
the Seller, in addition to the amount owned, a late payment
penalty equal to [*] of the amount owned per week. Any fractional
part of a week is to be considered as a full week. The total
amount of late payment penalty shall not, however, exceed [*] of
the total amount owned.
10. Warranty:
10.1 The Seller warrants the equipment supplied hereunder to be free
from defects in workmanship and materials. The Seller's warranty
for equipment and materials will commence upon delivery of the
goods and will continue for a period of [*]. During the warranty
period, the Seller will, [*], either repair or replace those
equipment and materials not in conformity with the aforementioned
warranty. If the Buyer determines that certain parts be returned
to the Seller, the [*] shall bear the transportation cost for the
return of such parts inside China and for the return of the
repaired or replaced parts to the Buyer's site.
10.2 The Seller warrants to eliminating errors from the software it
provides.
10.3 The foregoing warranty does not extend to any equipment or part
that has been:
10.3.1 Damaged due to improper use or accidents;
10.3.2 Wired, repaired or altered by anyone other than the Seller
or its representatives;
10.3.3 Damaged due to improper installation, storage, handling or
maintenance by anyone other than the Seller or its
representatives; and
10.3.3 Removed from its original site of installation, or due to
expendable components such as fuses, light bulbs, motor
brushes and the like.
10.2.5 All equipment supplied under this Contract is brand-new.
11. Force Majeure
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The Seller shall not be liable for any loss, damage, delay of the
goods or failure of their performance resulting directly or indirectly
from any cause which is beyond its reasonable control, which includes
but is not limited to the laws, regulations, acts of any government
authorities.
12. Late Delivery and Penalty:
In case of delayed shipment, except for force majeure, the Seller
shall pay to the Buyer for every week of delay a penalty amounting to
[*] of the total value of the goods whose shipment has been delayed.
Any fractional part of a week is to be considered as a full week. The
total amount of penalty shall not, however, exceed [*] of the total
value of the goods involved in late shipment and is to be deducted
from the amount due at the time of payment.
13. Arbitration
The parties shall strictly execute this Contract in accordance
with the relevant laws and regulations of the PRC. All disputes
arising out of the execution of the Contract shall be settled through
mutual understanding and friendly negotiations. In case no settlement
can be reached through negotiations, either party can apply to the
appropriate organization for arbitration or medication. The
arbitration fees shall be borne by the losing party.
14. Limitation of Liability
In the event of any breach of this Contract by the Seller, or of
any losses or injuries to the Buyer arising out of this Contract for
which the Seller is liable, the Seller's total cumulative liability
for such breaches, losses and injuries shall be the lesser of:
a. The actual value of the damages or losses caused to the Buyer.
b. The Seller shall not be liable for any consequential or
incidental losses or damages resulting from this Contract.
15. Validity and Termination of the Contract and Miscellaneous Matters:
15.1 This Contract will come into force upon affixation of the seals
by the parties and execution by the representatives of the
parties.
15.2 This Contract will be terminated upon fulfillment of the
respective duties and obligations by the parties.
15.3 This Contract can only be amended by an instrument in writing
signed and sealed by the duly authorized representatives of the
parties.
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15.4 During the course of performance of this Contract, all notices
between the parties shall be delivered by telex, facsimile or
certified mail.
15.5 This Contract is made in both Chinese and English, and the
versions in two languages shall be equally authentic. In case of
discrepancy between the two versions, the Chinese version will
prevail.
16. Remarks:
The Contract is made in two originals, of which each party holds
one.
The Buyer:
Zhejiang Telecommunication Corporation,
Shaoxing Branch
Representative: (Signature)
Date: November 18, 2000
The Seller:
UTStarcom (China) Ltd.
Representative: (Signature)
Date: November 18, 2000
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