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Exhibit 10.104
[***]. Confidential Treatment Requested
– 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.
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 the following terms and conditions:
1.
Exclusivity.
1.1
Curitel appoints
UTStarcom its exclusive distributor for the sale of Curitel’s
[***] terminal products set forth in the Exhibit A designed,
engineered or produced by Curitel in [***] (the
“Territory”).
1.2
Curitel will not
provide any of its products to [***] for selling them within the
UTStarcom’s exclusive territory.
1.3
UTStarcom will
consider Curitel as its preferred [***] supplier.
2.
Product.
Product models specified in
Exhibit A are Subject to carrier approval and competitive
prices from Curitel. Product model not specified in
Exhibit A could be sold through UTStarcom provided there is a
pre-arranged agreement with carrier and price, delivery term and
other major issues mutually agreed by Curitel.
3.
Quantity.
3.1
UTStarcom shall
purchase from Curitel the total quantity exceeding [***] units
subject to (a) the acceptable performance of product during
trial by carriers and their approval of user interface and to
compliance with all technical issues; and (b) competitive
pricing, timely delivery and satisfactory quality.
4.
Price.
4.1
The price for
terminals on the attachment is based on one handset, one Standard
Battery, one Charger and Manual.
4.2
Price by model
for 4th Quarter in Year 2004 is specified in
Exhibit A.
4.3
Prices for 1st
Quarter in Year 2005 and thereafter shall be discussed and mutually
agreed.
4.4
UTStarcom’s
final prices to the carriers (hereinafter referred to the
“Net Prices”) shall be the amount equal to [***].
All other Net Prices shall be mutually agreed by both
parties.
5.
Payment Terms.
5.1
UTStarcom shall
make payment to Curitel for product model purchased under this
Agreement by telegraphic transfer. Every first day of the
month, Curitel will send the invoice for that month’s total
scheduled shipment and UTStarcom 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 the shipped products within (3) days after
receiving bill of landing thereof in US dollars. Every last
day of the month, the balance of the prepaid [***] amount will be
settled in a way that UTStarcom makes payment for the differences
if UTStarcom’s total payments in that month falls short to
the total shipped amount in that month. Or UTStarcom will
deduct the amount from following month’s [***] amount if
there is any over paid amount in the previous month.
6.
Forecast / Order
Placement.
6.1
UTStarcom will
provide Curitel with [***] firm purchase order and [***] rolling
forecast of its estimated requirements for products.
6.2
The above
purchase order and the rolling forecast shall be provided by the
10th of each month.
6.3
UTStarcom will
update forecasts on a monthly basis or more frequently.
6.4
The purchase
order shall be deemed to be confirmed in case Curitel fails to
notify UTStarcom of objection to such purchase order within 5
business days after receipt of it.
6.5
Both parties will
discuss and share risk for the long lead and unique components to
be ordered by Curitel before approval of the products from the
carriers model by model. Curitel will provide the unique
parts and long-lead components list. This list will include
the quantity and the unit price and the total amounts to be
purchased 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/or manufactured under the
purchase orders of UTStarcom and for which Curitel is liable
resulting from cancellation of firm purchase orde
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